Full opinion text
MEMORANDUM OPINION KOLLAR-KOTELLY, District Judge. Plaintiffs American Federation of Government Employees TSA Local 1 (“AFGE”), Eugene Leimer, Don Card, Beatrice Campbell, Thomas Moriarty, and Jonathan Thorton bring this action against Edmund Hawley in his capacity as Administrator of the Transportation Security Administration (“TSA”), U.S. Department of Homeland Security, challenging the legality of the TSA’s May 2003 Reduction in Force (“RIF”), which implemented a workforce reduction of around 3,000 airport security screeners, including Plaintiffs. The reduction was necessitated by initial overstaffing as the TSA rapidly responded to Congress’s mandate to “deploy at all airports ... a sufficient number of Federal screeners ... to conduct the screening of all passengers” within one year of the November 19, 2001 enactment of the Aviation and Transportation Security Act (“ATSA”), Public Law 107-71 of the 107th Congress. ATSA § 111(n), Pub.L. 107-71, 115 Stat. 597 (2001). Following this Court’s denial of Plaintiffs’ Motion for a Preliminary Injunction and deferral of Plaintiffs’ Motion for Class Action Certification, Defendant filed a[10] Motion to Dismiss, followed by Plaintiffs’ Opposition and Defendant’s Reply. Upon consideration of the filings before the Court, the relevant statutes and case law, and the entire record herein, the Court shall grant Defendant’s Motion with respect to all Counts except Count VI with respect to Plaintiff Card and Plaintiff AFGE. The central question in this case is whether ATSA § 111(d), 49 U.S.C. § 44935 note, exempts the TSA Under Secretary from following the ATSA’s generally applicable personnel management provisions, ATSA § 101(n), 49 U.S.C. § 114(n), when hiring and firing airport security screeners. This Court finds, primarily for the reasons expressed in Springs v. Stone, 362 F.Supp.2d 686 (E.D.Va.2005), and In re Department of Homeland Security Border and Transportation Security Directorate Transportation Security Administration and AFGE, AFL-CIO, Decision and Order on Petitions, No. WA-RP-03-0023 (F.L.R.A. July 7, 2003) (hereinafter “In re TSA and AFGE ”), that ATSA § 111(d), 49 U.S.C. § 44935 note gives the Under Secretary broad discretion to exempt screeners from the protections of federal personnel laws, particularly those in part III of title V, United States Code. ATSA § 101, 49 U.S.C. § 114(n), governs TSA personnel management only for non-screener TSA employees. Plaintiffs’ specific claims include that the TSA RIF: (1) violated the ATSA by failing to follow the Act’s Federal Aviation Administration (FAA) personnel management provisions, (2) violated the ATSA and Veterans’ Preference Act of 1944 (“VPA”), 5 U.S.C. § 3901 et seq., by not taking into account military service, tenure of employment, and efficiency ratings, (3) violated the Administrative Procedure Act (APA) as an arbitrary and capricious agency action, (4) violated the Age Discrimination in Employment Act (ADEA) by disparately impacting screeners over 40 years old, (5) violated the ATSA § 110(c) by not deploying “a sufficient number of Federal screeners” to conduct screening of all passengers, (6) violated Plaintiffs’ First Amendment rights of free speech and association by disparately impacting union activists, and (7) violated Plaintiffs’ Fifth Amendment due process rights by advertising that RIFed employees were terminated for poor job performance. See Compl. ¶¶ 38-39 (Count I — ATSA 101), ¶¶ 40-41 (Count II—VPA), ¶¶ 42-43 (Count III—APA), ¶¶ 44-46 (Count IV—ADEA), ¶¶ 47-48 (Count V—ATSA 110(c)), ¶¶ 49-51 (Count VI—1st amend.), ¶¶ 52-55 (Count VII—5th amend.). Counts I, II, and III are all dependent on whether ATSA § 111(d) or ATSA § 101 governs the TSA’s personnel management system for screeners. For the reasons that follow, the Court shall dismiss all of Plaintiffs’ claims except Count VI with respect to Plaintiff Card, because: (1) the TSA RIF did not violate ATSA § 101 by failing to establish the FAA’s personnel management system for screeners, because ATSA § 111(d) exempts the TSA from that requirement with respect to screeners, (2) the TSA RIF did not violate the ATSA or the Veterans’ Preference Act by not taking into account military service, tenure of employment, and efficiency ratings, because ATSA § 111(d) grants the TSA power to incorporate or not incorporate such standards into screener terminations at the TSA’s discretion, (3) this Court does not have jurisdiction to adjudicate Count III, because the ATSA commits RIF procedures to TSA discretion, (4) Count IV has failed to state a claim upon which relief can be granted, because under the ADEA, claims of discrimination based on disparate impact are not cognizable, (5) TSA screeners are not within the “zone of protection” of ATSA § 110(c), and so lack standing to pursue Count V, (6) Plaintiffs, except for Plaintiff Card, have failed to state a claim under the First Amendment, because they fail to allege that their termination was in any way causally connected with their union activities, and (7) Plaintiffs have failed to state a claim under the Fifth Amendment, because they fail to allege that the “disparaging” Press Release so seriously hampered or constrained their employment opportunities as to deprive them of a liberty interest protected by the 5th Amendment. I: BACKGROUND A. Statutory Framework Less than ten weeks after the September 11, 2001 terrorist hijackings of four commercial airliners, Congress enacted the Aviation and Transportation Security Act (“ATSA”), Pub.L. No. 107-71, 115 Stat. 597 (2001), as codified in 49 U.S.C. § 114 et seq., in order to improve airport security. The central feature of the Act is federalization of the nation’s transportation security system through creation of the Transportation Security Administration (“TSA”). Most importantly, Congress mandated that “Not later than 1 year after the date of enactment of this Act, the Under Secretary of Transportation for Security [head of the TSA] shall deploy at all airports in the United States where screening is required under section 44901 of title 49, United States Code, a sufficient number of Federal screeners ... to conduct the screening of all passengers and property....” ATSA § 110(c), 49 U.S.C. § 44901 note. The legislative history of the ATSA reveals disagreement concerning the employee protections the Act should mandate for TSA airport security screeners. In their final versions, the two provisions at issue in this case provide as follows: ATSA § 111(d), 49 U.S.C. § 44935 note, provides, in its entirety: (d) Screener Personnel.' — Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed. ATSA § 101, 49 U.S.C. § 114(n), provides: (n) Personnel management system.— The personnel management system established by the Administrator of the Federal Aviation Administration under [49 U.S.C.] section 40122 shall apply to employees of the Transportation Security Administration, or, subject to the requirements of such section, the Under Secretary may make such modifications to the personnel management system with respect to such employees as the Under Secretary considers appropriate.... Section 111(d) emerged originally from Senate Bill S. 1447, while section 101 emerged originally from House Bill H.R. 3501. After conference, both provisions appeared in the final bill, Public Law 107-71. Section 111(d) evolved out of an earlier Senate provision intended to provide the Under Secretary with authority to hire (i) any necessary number of screeners, without regard to any limitation on the number imposed by any law or Executive Order, (ii) but with the employee protections of part III of title 5 applicable to all screen-ers hired. The original provision in S. 1447, as introduced on September 21, 2001, provided: Sec. 10. Training and employment of security screening personnel. (f) Authorization of Employment. — The Secretary of Transportation is authorized to employ, appoint, and fix the compensation of such a number of individuals as may be necessary to carry out sections 44901 and 44903 of title 49, United States Code, in accordance with the provisions of part III of title 5, United States Code, without regard to any limitations on number of employees imposed by any other law or Executive Order. In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). This provision was amended by the Senate on October 10, 2001 by Senate Amendment 1854, to read: Sec. 10. Training and employment of security screening personnel. (d) Expedited personnel process.— (1) Authorization of employment. — The Secretary of Transportation may appoint and fix the compensation of such a number of individuals as may be necessary to carry out section 44901 and 44903 of title 49, United States Code, in accordance with the provisions of part III of title 5, United States Code, without regard to any limitations on number of employees imposed by any other law or Executive Order. (2) Strikes prohibited.' — An individual employed as a security screener is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5. In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). The provision was further amended by Senate Amendment 1881 on October 11, 2001. The purpose of Senate Amendment 1881 was “[t]o authorize the employment, suspension, and termination of airport passenger security screeners without regard to the provision of title 5, United States Code, otherwise applicable to such employees.” In re TSA and AFGE, No. WARP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S10520 (Oct. 11, 2001)). Senate Amendment 1881 replaced the above subsections with: (d) Screener personnel — Notwithstanding any other provision of law, the Secretary of Transportation may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of such a number of individuals as the Secretary determines to be necessary to carry out the passenger security screening functions of the Secretary under section 44901 of title 49, United States Code. (e) Strikes prohibited. — An individual employed as a security screener under section 44901 of title 49, United States Code, is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5, United States Code. In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). No other changes of significance to this case were made to this provision in S. 1447 that differentiate it from the final version appearing in Pub.L. 107-71, cited above. ATSA § 101, meanwhile, came originally from House bill H.R. 3150, introduced on October 17, 2001. Section 101 provides that the personnel management system of the FAA apply to TSA employees. The FAA personnel management system is more “flexible” than that applicable to most federal employees, in that only enumerated employee protections of federal personnel laws apply, including whistle-blower protection, veterans’ preference, non-discrimination, insurance, and appeals to the Merit Systems Protection Board. See 49 U.S.C. § 40122(g). Importantly, unlike the bill passed by the Senate, the House bill contemplated that section 101’s employee protections would not apply to security screeners, because it mandated only federal oversight of screeners, but not federal employment: (e) Supervision of screening. — All screening of passengers and property at airports under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration who shall have the power to order the dismissal of any individual performing such screening. (f) Limitation on right to strike. — An individual that screens passengers or property, or both, at an airport under this section may not participate in a strike, or assert the right to strike, against the person (including a government entity) employing such individual to perform such screening. In re TSA and AFGE, No. WA-RP-03-0023 at 9 n. 21 (F.L.R.A. July 7, 2003). Initially, the House rejected the Senate’s version of the TSA legislation, rejecting on November 1, 2001 H. Arndt. 384, which would replace the text of H.R. 3150 with text identical to S. 1447. Id. Some Representatives objected that S. 1447 “gives the [head of the TSA] broad discretion over pay, health care, whistleblower protection, veterans’ preference, workers’ compensation, and the right to organize.” TSA and AFGE at 10, n. 21 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H7648 (Nov. 1, 2001)). Another Representative criticized the Senate bill for not “even giv[ing] these employees the protection of fair labor standards ... nondiscrimination acts, all of the law that provides family and medical leave.... ” Id. H.R. 3150 — with Section 101 but without federalization of screeners — was passed by the House and sent to conference on November 6, 2001. The bill that emerged from conference on November 19, 2001 adopted the Senate’s formulation of the Under Secretary’s authority to determine the terms of employment of TSA screeners. Sen. John Rockefeller remarked that the “critical matters” of “health care, worker’s compensation, and civil rights and whistleblower protection ... are left to the discretion of the Department of Transportation....” In re TSA and AFGE, No. WA-RP-03-0023 at 7 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S11982 (Nov. 16, 2001)). House Rep. Janice Schakowsky expressed her “understanding that the Secretary is given the authority to determine whether [screeners] can join a union; participate in the Federal Employees Health Benefit Plan and retirement options; and be covered by non-discrimination, health and safety, and whistleblower laws.” In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H8313 (Nov. 16, 2001)). Both expressed their “hope[s] that the Secretary will act to give those benefits and rights to federal screeners and security workers.” Id. B. The Reduction in Force Between April and December 2002, the TSA hired more than 62,000 screening personnel in a “dynamic, high pressure roll-out” to meet Congress’s mandate to “deploy at all airports ... a sufficient number of Federal screeners ... to conduct the screening of all passengers” within one year of the November 19, 2001 enactment of the ATSA. Def.’s Opp’n to Pls.’ Mot. for Prelim. Inj., Ex. 1 (8/25/03 Whitford Deck) (hereinafter “Whitford Decl.”) ¶¶ 5-6. Due to “haphazard or ill-planned deployment of personnel,” however, approximately 400 airports became either overstaffed or understaffed. Springs v. Stone, 362 F.Supp.2d 686, 690-91 (E.D.Va.2005) (citations omitted); Whitford Decl. ¶ 8. Though it had met congressional deadlines, TSA now was concerned with its “obligation as stewards of taxpayer money.” Whitford Decl., Tab A (4/30/03 Letter from James Loy to TSA Screeners). TSA consequently rolled out a “right-sizing” plan that called for elimination of 3,000 screener positions by May 31, 2003, and another 3,000 by September 30, 2003. Id. Recognizing that “a traditional seniority-based reduction was not feasible given that all hiring had taken place airport by airport only within the past year,” the TSA Guidance Team responsible for “right-sizing” the screener workforce developed a competency-based process for terminating screeners, based on tests of measuring a screener’s ability to identify x-ray images of prohibited items in luggage, knowledge of screening procedures. Whitford Decl. ¶¶ 11, 20, 22. Due to the May 30, 2003 deadline for eliminating 3,000 screener positions, however, the first phase of the reduction incorporated only a conduct checklist, “which identified previously documented on-the-job conduct and performance issues,” in the competency evaluation. Id. ¶¶ 22, 25. Officials at overstaffed airports completed the checklists and forwarded them to TSA Headquarters for review. Id. ¶ 26. Approximately 800 TSA screeners were terminated via letters on May 23 and May 30, 2003. Compl. ¶ 30; Springs, 362 F.Supp.2d at 692. The remaining 2,200 of the targeted 3,000 employees were eliminated through attrition. Springs, 362 F.Supp.2d at 692. All Plaintiffs in this case were among those “RIFed” in late May 2003. Compl. ¶ 30. Plaintiffs’ separation letters stated that separation was as a result of over-staffing resulting from budget allocations and “not for cause.” Id. A TSA press release of May 30, 2003 reassured the public that the screener job cuts would have no impact on security or passenger wait times. Compl., Ex. 4 (5/30/03 TSA Press Release). The press release also stated that: Whenever possible, normal attrition, including resignations and retirements, is being used for rightsizing at individual airports. Employees may be terminated for cause, including criminal background, failure to pass drug and alcohol tests, and falsification of employment documents. Beyond that, the actual reductions in force are based on job performance. Id. Plaintiffs Leimer, Card, Moriarty, and Thorton are all veterans. Compl. ¶ 31. Plaintiffs Leimer, Card, Campbell, and Moriarty were all over 40 years old. Id. ¶ 32. All Plaintiffs were union activists. Id. ¶ 33. Based on the foregoing events and them interpretation of the ATSA provisions, Plaintiffs filed an action in this Court on August 13, 2003, claiming inter alia that TSA’s RIF violated the ATSA by failing to take into account seniority and veterans’ preference as mandated by section 101; violated other federal employee-protection laws, including the VPA protections for veterans, APA protections against arbitrary and capricious agency actions, and ADEA protections against age discrimination; and violated the First and Fifth Amendments to the U.S. Constitution by hampering their freedom to join a union and by making disparaging public remarks in the press release. Following this Court’s denial of Plaintiffs’ Motion for a Preliminary Injunction and deferral of Plaintiffs’ Motion for Class Action Certification, Defendant now moves this Court to dismiss all Plaintiffs’ claims. II: LEGAL STANDARDS A. Motion to Dismiss 1. Rule 12(b)(1) A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1). In general, a motion to dismiss under Federal Rule of Civil Procedure 12(b) should not prevail “unless plaintiffs can prove no set of facts in support of their claim that would entitle them to relief.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A court may appropriately dispose of a case under 12(b)(1) for standing, and may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted); see also Artis v. Greenspan, 223 F.Supp.2d 149, 152 n. 1 (D.D.C.2002) (“A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject matter jurisdiction.”); Vanover v. Rantman, 77 F.Supp.2d 91, 98 (D.D.C.1999) (“where a document is referred to in the complaint and is central to plaintiffs claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment”) (citing Greenberg v. The Life Ins. Co. of Virginia, 177 F.3d 507, 515 (6th Cir.1999)). At the stage in litigation when dismissal is sought, the plaintiffs’ complaint must be construed liberally, and plaintiffs should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiffs’ burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C.2000). 2. Rule 12(b)(6) In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiffs and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the Complaint in the Plaintiffs’ favor, it “need not accept inferences drawn by the plaintiffs if such inferences are not supported by the facts set out in the complaint.” Kowal, 16 F.3d at 1276. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). B. Standards for Administrative Agency Review Plaintiffs in this ease challenge the Transportation Security Agency’s construction of the ATSA, specifically, the Agency’s interpretation of the sections 111(d) and 101. The standard for the Court’s review of such challenges is known as Chevron review, after the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The central question for the reviewing court under Chevron “is whether the agency’s construction of the statute is faithful to its plain meaning, or, if the statute has no plain meaning, whether the agency’s interpretation ‘is based on a permissible construction of the statute.’ ” Arent v. Shalala, 70 F.3d 610, 615 (D.C.Cir.1995) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Under the Chevron analysis, a court first asks “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; see also id. at 843 n. 9, 104 S.Ct. 2778 (“[Ajdministrative constructions which are contrary to clear congressional intent” must be rejected by the court). “When performing this first step, [courts] employ traditional tools of statutory construction.” Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C.Cir.2000) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Among these tools is a statute’s framework and legislative history. See Am. Fed’n of Labor & Congress of Indus. Orgs. v. Fed. Election Comm’n, 333 F.3d 168, 172 (D.C.Cir.2003) (“AFL-CIO”); Am. Bankers Ass’n v. Nat’l Credit Union Admin., 38 F.Supp.2d 114, 134 (D.D.C.1999); see also Natural Res. Def. Council v. Browner, 57 F.3d 1122, 1127 (D.C.Cir.1995) (“Reference to statutory design and pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears ‘superficially clear.’ ”) (quoting Am. Scholastic TV Programming Found, v. Fed. Commc’ns Comm’n, 46 F.3d 1173, 1178 (D.C.Cir.1995)). However, canons of construction are only to be used during step one of the Chevron analysis to determine if “Congress had a specific intent on the issue in question.” Mich. Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C.Cir.1989) (emphasis in original). In conducting this stage of the Chevron analysis, the Court “giv[es] no deference to the agency’s interpretation.” AFL-CIO, 333 F.3d at 173. If the court finds that “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. “A statute is considered ambiguous if it can be read more than one way.” AFL-CIO, 333 F.3d at 173. “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778. However, if the Agency’s interpretation unduly compromises the statute’s “purposes, it is not a ‘reasonable accommodation’ under the Act, and it would therefore not be entitled to deference.” Orloski v. Fed. Election Comm’n, 795 F.2d 156, 164 (D.C.Cir.1986) (quoting Chevron, 467 U.S. at 845, 104 S.Ct. 2778); see also Chevron, 467 U.S. at 845, 104 S.Ct. 2778 (providing that if the agency’s “choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”) (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961)); Common Cause v. Fed. Election Comm’n, 692 F.Supp. 1391, 1396 (D.D.C.1987) (“[W]here the agency interprets its statute in a way that flatly contradicts Congress’s express purpose, the court may — indeed must — intervene and correct the agency.”). Ill: DISCUSSION The Court first discusses the central question in this case — the meaning of ATSA § 111(d), 49 U.S.C. § 44935 note— and then addresses Plaintiffs’ Counts I to VII in turn. A. The Meaning of ATSA § 111(d), 19 U.S.C. § 44935 note The central question in this case is whether ATSA § 111(d), 49 U.S.C. § 44935 note, exempts the TSA Under Secretary from following the ATSA’s generally applicable personnel management provisions, ATSA § 101, 49 U.S.C. § 114(n), when hiring and firing airport security screeners. This question has been previously addressed by the Federal Circuit in Conyers v. Merit Systems Protection Board, 388 F.3d 1380 (Fed.Cir.2004), the Eastern District of Virginia in Springs v. Stone, 362 F.Supp.2d 686 (E.D.Va.2005), and the Federal Labor Relations Authority in two cases, In re TSA and AFGE, No. WA-RP-03-0023 (F.L.R.A. July 7, 2003), and its appeal in In re United States Department of Homeland Security and Transportation Securi ty Directorate Transportation Security Administration and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, 59 F.L.R.A. 423, 2003 WL 22669101 (November 4, 2003). These tribunals all concluded that ATSA § 111(d) renders all other federal personnel statutes, including ATSA § 101, inapplicable to the Under Secretary’s powers to “employ, appoint, discipline, [and] terminate” screeners. The D.C. Circuit Court of Appeals touched on the question in AFGE v. Loy, 367 F.3d 932 (D.C.Cir.2004), but concluded the question was not properly before the court. This Court finds, primarily for the reasons expressed in In re TSA and AFGE (F.L.R.A. July 7, 2003), that ATSA § 111(d), 49 U.S.C. § 44935 note, gives the TSA Under Secretary broad discretion in screener employment decisions. ATSA § 101, 49 U.S.C. § 114(n), governs TSA personnel management only for non-screener TSA employees. The plain text of the statute shows that Congress intended to invest the TSA Under Secretary with authority to exempt security screeners from the employee protections of otherwise applicable federal personnel laws. Furthermore, the ATSA’s legislative history abolishes any possible ambiguity in the statute’s meaning. 1. The “Plain Meaning” of ATSA Sections 111(d) and 101 Shows That Congress Intended to Invest the TSA Under Secretary with Authority to Exempt Security Screeners from the Employee Protections of Otherwise Applicable Federal Personnel Laws With respect to statutory construction, the Supreme Court has emphasized that “[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313(1988) (citations omitted). The “first step” in the canon of statutory construction is to “begin with a ‘plain language’ analysis of the statutory text.” Cal. Indep. Sys. Operator Corp., 372 F.3d at 400. That is, the court is to assume “that the legislative purpose is expressed by the ordinary meaning of the words used.” Sec. Indus. Ass’n v. Bd. of Governors, 468 U.S. 137, 149, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984) (internal quotation and citations omitted). “Where [ ] the plain language of the statute is clear, the court generally will not inquire further into its meaning.” QiZhuo v. Meissner, 70 F.3d 136, 140 (D.C.Cir.1995). If the plain language of the statute is unclear or ambiguous, it is appropriate to examine the legislative history of the statute to determine the intent of Congress. TSA and AFGE (F.L.R.A. July 7, 2003) (citing Munson v. Merit Systems Protection Board, 216 F.3d 1037, 1040 (Fed.Cir.2000); AFGE, Local 3295 v. FLRA, 46 F.3d 73, 77 (D.C.Cir.1995) (Wald, C.J., dissenting)). The project for the court is in both cases to determine the intent of Congress when applying the statute. In its entirety, the Section 111(d) reads: Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed. 49 U.S.C. § 44935 note. Plaintiffs argue that Section 111(d) does not grant the Secretary discretion to not apply the FAA personnel management system to screeners, because “[bjoth parties agree that ATSA explicitly mandates that the TSA adopt the personnel system in place at the Federal Aviation Administration (FAA) for their employees at large” and “notwithstanding” language should not “negate[] an earlier provision of the same law.” Pls.’ Opp’n at 12, 14 (citing ATSA § 101, 49 U.S.C. § 114(d)). Defendant counters that “[t]he statutory command [of Section 111(d) ] is plain and incontrovertible,” showing “the unambiguously expressed intent of Congress” to give the Under Secretary unfettered discretion concerning airport security screen-er personnel decisions. Def.’s Mem. to Dismiss at 10, 13, 16. The Court finds that the plain text favors Defendant’s interpretation for several reasons. First, a “notwithstanding” clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Springs, 362 F.Supp.2d at 697 (quoting Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993)); see also Shomberg v. United States, 348 U.S. 540, 547-48, 75 S.Ct. 509, 99 L.Ed. 624 (1955) (by using “ ‘notwithstanding’ language ... Congress clearly manifests] its intent that certain policies should override” other provisions in a statute); AFGE v. FLRA 46 F.3d 73, 76 (D.C.Cir.1995) (finding the phrase “notwithstanding any other provision of law” to vest broad discretion in a federal agency); Liberty Maritime Corp. v. United States, 928 F.2d 413, 416 (D.C.Cir.1991) (noting that a “clearer statement of law” than a ‘notwithstanding clause “is difficult to imagine”). Second, throughout the ATSA, Congress gave specific attention towards screeners as different from other classes of employees covered by the Act. See Springs, 362 F.Supp.2d at 699 (noting that “[tjhere is a rational basis for distinguishing, as Congress has done, between airport security screeners and other TSA employees .... A different choice might have been made but Congress could rationally conclude that airport security requires federal employees who operate with more flexibility than either civil service or collectively-bargained protections and procedures would allow.”). Related to this point, Defendant notes that “[wjhile screeners are collectively the vast majority of TSA employees, non-screener position types are far more numerous” so that 101 might be intended to “cover the many different kinds of positions for which Congress could not be expected to legislate more specifically.” Def.’s Reply at 13 n. 8. Third, Congress juxtaposed a long list of personnel functions — “employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment” — with the “notwithstanding any other law” phrase, and in addition provided the section’s final sentence that “The Under Secretary shall establish levels of compensation and other benefits for individuals so employed.” 49 U.S.C. § 44935 note. The list of functions and final sentence emphasize the section’s focus on the Secretary’s power to set terms of employment and termination. Finally, Congress “frequently exempts federal agencies from the provisions of federal personnel laws.” Def.’s Mem. to Dismiss at 13 (citing Gardner v. Library of Congress, 774 F.2d 1081 (Fed.Cir.1985); Wilks v. Army, 91 M.S.P.R. 70 (2002); Beckstrom-Parcell v. Veterans Affairs, 91 M.S.P.R. 656 (2002)). As such, the Court finds that the plain text of Section 111(d) clearly signals Congress’s intention to grant the TSA Under Secretary authority to design a personnel management system for airport security screeners, to include or not include at the Secretary’s discretion provisions of other federal personnel laws, including those in the FAA’s personnel management system in 49 U.S.C. § 40122(g). Plaintiffs make several arguments contesting this conclusion. First, Plaintiffs argue that a “RIF is neither part of employment, appointment, disciplinary action, termination or a term or condition of employment. ...” Pls.’ Opp’n at 13. Plaintiffs contend that “a RIF is not a termination,” but rather “a separation from employment due to reasons unrelated to cause.” Id. In support, Plaintiffs cite cases in which courts found that a “reduction-in-force” is not encompassed by “condition of employment,” citing James v. Von Zemenszky, 284 F.3d 1310 (Fed.Cir.2002), or that a RIF is not a termination, citing Brooks v. Board of Commissioners of Chicago Housing Authority, 1998 WL 214669 (N.D.Ill.1998). Defendant counters that, “to the extent case law informs the issue, the D.C. Circuit ... has previously used the terms ‘RIF,’ ‘termination,’ and ‘separation’ synonymously: ‘In so arguing, the Union acknowledges that RIF’d teachers have available several avenues for challenging their removals in post-termination hearings if they believe either that their terminations were discriminatory or retaliatory, or that notice and separation procedures were not followed.’ ” Def.’s Reply at 11-12 (citing Washington Teachers’ Union Local No. 6, Am. Federation of Teachers, AFL-CIO v. Board of Educ. of the Dist. of Columbia, 109 F.3d 774, 779 (D.C.Cir.1997) (emphasis added)). In the Court’s view, Plaintiffs’ argument is a stretch, to say the least. The relevant inquiry here is if, in enacting the ATSA, Congress intended the term “termination” to encompass a reduction-in-force. The plain meaning of “termination” encompasses a reduction-in-force. Plaintiffs offer no evidence that suggests Congress intended otherwise. One unpublished case from the Northern District of Illinois demonstrating that a legislature differentiated between the terms in a different statute is insufficient. Plaintiffs further argue that a “notwithstanding” provision cannot negate an earlier provision of the same law. Pis.’ Opp’n at 14. Rather, Plaintiffs contend that a longstanding rule of construction “mandate[s] that statutes be construed to give effect to every clause.” United States v. Rodriguez, 26 F.3d 4, 8, (1st Cir.1994); see also Tobey v. NLRB, 40 F.3d 469, 471 (D.C.Cir.1994). Defendant points out that a “provision that applies ‘notwithstanding any other provision of law* may override not only provisions of some other Act but also other provisions contained in the same Act.” Def.’s Reply at 12 (citing Liberty Maritime Corp. v. United States, 928 F.2d 413, 416-17 & n. 4 (D.C.Cir.1991)). Defendant notes too that “Section 111(d) conveys its authority ‘[notwithstanding any other provision of law,’ rather than, as AFGE would have it, ‘[notwithstanding any provision of other law.’ ” Id. A “notwithstanding” provision may indeed negate an earlier provision of the same law, if Congress so intends. A rule of statutory construction cannot impede that power. For that and other reasons discussed supra, Section III(A), the Court rejects Plaintiffs’ interpretation of the ATSA. For the foregoing reasons, the Court finds that the plain text of Section 111(d) clearly signals Congress’s intention to grant the TSA Under Secretary authority to design a personnel management system for airport security screeners, to include or not include at the Secretary’s discretion provisions of other federal personnel laws, including those in the FAA’s personnel management system in 49 U.S.C. § 40122(g). 2. The Legislative History of ATSA Sections 111(d) and 101 Conclusive- . ly Shows that Congress Intended to Invest the Under Secretary with Authority to Exempt Screeners from . the Employee Protections of Federal Personnel Laws Not only does the plain text of the statute favor Defendant’s interpretation, but the legislative history of ATSA Sections 111(d) (49 U.S.C. § 44985 note) and 101, (49 U.S.C. § 114(n)) conclusively shows that Congress intended to invest the Under Secretary with Authority to exempt airport security screeners from the employee protections of federal personnel laws. The relevant legislative history includes precursor texts of 111(d) and 101, as well as legislators’ specific comments about 111(d) in the Congressional Record. First, precursor texts of ATSA § 111(d) show incontestably that Congress intended to allow the Under Secretary to exempt screeners from the employee protections federal personnel laws, including part III of title 5, United States Code. The original version of 111(d) in S. 1447, as introduced on September 21, 2001, provided: Sec. 10. Training and employment of security screening personnel. (f) Authorization of Employment. — The Secretary of Transportation is authorized to employ, appoint, and fix the compensation of such a number of individuals as may be necessary to carry out sections 44901 and 44903 of title 49, United States Code, in accordance with the provisions of part III of title 5, United States Code, without regard to any limitations on number of employees imposed by any other law or Executive Order. In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). This provision was amended by the Senate on October 10, 2001 by S. Arndt. 1854, to read: Sec. 10. Training and employment of security screening personnel. (d) Expedited personnel process.— (1) Authorization of employment. — The Secretary of Transportation may appoint and fix the compensation of such a number of individuals as may be necessary to carry out section 44901 and 44903 of title 49, United States Code, in accordance with the provisions of part III of title 5, United States Code, without regard to any limitations on number of employees imposed by any other law or Executive Order. (2) Strikes prohibited. — An individual employed as a security screener is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5. In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). The provision was further amended by S. Arndt. 1881 on October 11, 2001. The purpose of S. Arndt. 1881 was “[t]o authorize the employment, suspension, and termination of airport passenger security screeners without regard to the provisions of title 5, United States Code, otherwise applicable to such employees.” In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S10520 (Oct. 11, 2001)). S. Arndt. 1881 replaced the above subsections with: (d) Screener personnel. — Notwithstanding any other provision of law, the Secretary of Transportation may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of such a number of individuals as the Secretary determines to be necessary to carry out the passenger security screening functions of the Secretary under section 44901 of title 49, United States Code. (e) Strikes prohibited. — An individual employed as a security screener under section 44901 of title 49, United States Code, is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5, United States Code. In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). No other changes of significance to this case were made to this provision in S. 1447 that differentiate it from the final version appearing in Pub.L. 107-71, cited above. After examining S. Arndt. 1881 in particular, it is clear that the Senate intended to invest the Under Secretary with authority to exempt screeners from the employee protections of federal personnel laws, particularly part III of title 5, United States Code. The amendment expressly deletes the requirements from the earlier version that employment of screeners be “in accordance with the provisions of part III, title 5, United States Code.” A clearer demonstration of the Senate’s intent that employment of screeners need not be “in accordance with the provisions of part III, title 5, United States Code” is hard to imagine. As such, the legislative history of Section 111(d) as it evolved through various drafts in the Senate clearly shows that the Senate intended to grant the Under Secretary broad discretion to exempt screeners from federal personnel laws. Second, because the House bill with the precursor to ATSA § 101 did not originally contemplate federalization of screeners, the House did not contemplate that the personnel management system called for in ATSA § 101 would apply to screeners. ATSA § 101 came originally from House bill H.R. 3150, introduced on October 17, 2001. Section 101 provides that the personnel management system of the FAA apply to TSA employees. The FAA personnel management system is more “flexible” than that applicable to most federal employees, in that only enumerated employee protections federal personnel laws apply, including whistleblower protection, veterans’ preference, non-discrimination, insurance, and appeals to the Merit Systems Protection Board. See 49 U.S.C. § 40122(g). Importantly, unlike the bill passed by the Senate, the House bill contemplated that section 101’s employee protections would not apply to security screeners, because it mandated only federal oversight of screeners, but not federal employment: (e) Supervision of screening. — -All screening of passengers and property at airports under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration who shall have the power to order the dismissal of any individual performing such screening. (f) Limitation on right to strike. — -An individual that screens passengers or property, or both, at an airport under this section may not participate in a strike, or assert the right to strike, against the person (including a government entity) employing such individual to perform such screening. In re TSA and AFGE, No. WA-RP-03-0028 at 9 n. 21 (F.L.R.A. July 7, 2003). Initially, the House rejected the Senate’s version of the TSA legislation, rejecting on November 1, 2001 H. Arndt. 384, which would replace the text of H.R. 3150 with text identical to S. 1447. Id. Some Representatives objected that the Senate bill “gives the [head of the TSA] broad discretion over pay, health care, whistle-blower protection, veterans’ preference, workers’ compensation, and the right to organize.” TSA and AFGE at 10 n. 21 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H7648 (Nov. 1, 2001)). Another Representative criticized the Senate bill for not “even giv[ing] these employees the protection of fair labor standards ... nondiscrimination acts, all of the law that provides family and medical leave.... ” Id. H.R. 3150 — with section 101 but without federalization of screeners — was passed by the House and sent to conference on November 6, 2001. As such, the House Representatives clearly understood that the Senate bill did not provide to security screeners the protections of federal personnel laws. The bill that emerged from conference on November 19, 2001 adopted the Senate’s formulation of the Under Secretary’s broad authority to determine the terms of employment of TSA screeners. Senator John Rockefeller remarked that the “critical matters” of “health care, worker’s compensation, and civil rights and whistleblower protection ... are left to the discretion of the Department of Transportation.... ” In re TSA and AFGE, No. WA-RP-03-0023 at 7 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S11982 (Nov. 16, 2001)). House Representative Janice Schakowsky expressed her “understanding that the Secretary is given the authority to determine whether [screeners] can join a union; participate in the Federal Employees Health Benefit Plan and retirement options; and be covered by non-discrimination, health and safety, and whistleblower laws.” In re TSA and AFGE, No. WARP-03-0023 at 11 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H8313 (Nov. 16, 2001)). Both Congresspersons expressed their “hope[s] that the Secretary will act to give those benefits and rights to federal screeners and security workers.” Id. Importantly, the FAA personnel management system in Section 101 provides for retirement options, and coverage by non-discrimination, whistleblower, health and safety laws — if the Congresspersons believed Section 101 applied to security screeners, they would have neither acknowledged that the Secretary had authority to withhold such protections, nor expressed their hopes that the Secretary would in his discretion choose to provide the protections. See 49 U.S.C. § 40122(g). It was therefore clear to the Congresspersons that Section 101 did not apply to airport security screeners. In short, the plain text and legislative history conclusively show that Congress did not intend for ATSA § 101 to apply to airport security screeners. Instead, in enacting ATSA § 111(d), Congress intended to invest the Under Secretary with authority to exempt airport security screeners from the employee protections of federal personnel laws. As such, in examining Plaintiffs’ Counts I to VII in the following sections, this Court will heed the Supreme Court’s admonition in Chevron: “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. Because the plain text and legislative history of ATSA § 111(d) are conclusive and unambiguous in their indication of congressional intent, the Court will not proceed with step two of the Chevron analysis. See Cal. Indep. Sys. Operator Corp., 372 F.3d at 399 (D.C.Cir.2004); Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. B. The TSA RIF Did Not Violate the ATSA by Failing to Adopt the FAA Personnel Management System for Security Screeners (Count I) In Count I, Plaintiffs claim that the TSA RIF violated the ATSA, because “ATSA [§ 101] explicitly mandates that the Federal Aviation Administrations’s (FAA) personnel management system as defined in 49 U.S.C. § 40122 shall apply to” TSA security screeners. See Compl. ¶¶ 20-21, 38-39 (Count I—ATSA 101). As discussed above, ATSA § 101 does not apply to TSA security screeners. ATSA § 101 directs the TSA to establish for most of its employees the FAA personnel management system in 49 U.S.C. § 40122. ATSA § 111(d) grants the TSA Under Secretary authority not to establish such a personnel management system for airport security screeners. Consequently, the May 2003 TSA RIF of security screen-ers did not violate the ATSA by allegedly failing to follow FAA personnel management practices pursuant to 49 U.S.C. § 40122. Count I of Plaintiffs’ Complaint is therefore dismissed. C. The TSA RIF Did Not Violate the ATSA and Veterans’ Preference Act of 191k, 5 U.S.C. § 3901 et seq., by Not Taking Into Account Military Service, Tenure of Employment, and Efficiency Ratings (Count II) In Count II, Plaintiffs claim that the May 2003 TSA RIF violated the ATSA and Veterans’ Preference Act of 1944 by not taking into account military service, tenure of employment, and efficiency ratings. Compl. ¶¶ 40-41 (Count II—VPA). Plaintiffs argue that ATSA § 101 mandates that FAA’s personnel management system under 49 U.S.C. § 40122 applies to TSA security screeners. See ATSA § 101, 49 U.S.C. § 114(n). Plaintiffs contend that “[pjursuant to § 40122(g)(1), [the] FAA expressly incorporates the provisions of Title 5 relating to sections 2208-3320 for veterans’ preference,” and “[t]he FAA RIF procedures are consistent with the Veterans’ Preference Act of 1944.” Compl. ¶¶ 22-25. As discussed above, while ATSA § 101 directs the TSA to establish for most of its employees the FAA personnel management system in 49 U.S.C. § 40122, ATSA § 111(d) grants the TSA Under Secretary authority not to establish such a personnel management system for airport security screeners. In enacting ATSA § 111(d) Congress intended to invest the Under Secretary with authority to exempt airport security screeners from the employee protections of federal personnel laws, including the Veterans’ Preference Act of 1944, 5 U.S.C. § 3501 et seq. (contained within part III of title 5, United States Code). Consequently, the May 2003 TSA RIF did not violate either 49 U.S.C. § 40122 or the Veterans’ Preference Act of 1944 by allegedly failing to comport with these laws. Count II of Plaintiffs’ Complaint is therefore dismissed. D. The Court Does Not Have Jurisdiction to Review the TSA RIF Standard Under the APA Because ATSA § 111(d) Commits Design of a RIF to Agency Discretion (Count III) In Count III, Plaintiffs claim that “[t]he TSA RIF ‘standard’ is arbitrary and capricious agency action in violation of the APA, 5 U.S.C. § 706.” See Compl. ¶¶42-43 (Count III—APA). By the RIF “standard,” Plaintiffs refer to the fact that the first phase of the RIF incorporated only a conduct checklist, which identified previously documented on-the-job conduct and performance issues. Whitford Decl. ¶¶ 22, 25. Approximately 800 TSA screeners were terminated via letters on May 23 and May 30, 2003 in this phase. Compl. ¶ 30; Springs, 362 F.Supp.2d at 692. In Count III, Plaintiffs incorporate by reference their allegations that the RIF standard “does not follow FAA RIF procedures and (1) places undue emphasis on de minimis memoranda of counseling and/or disciplinary actions, (2) does not preserve permanent before temporary employees, (3) does not distinguish between positions, (4) does not consider length of federal service, (5) does not preserve veterans’ preference, and (6) does not create restoration rights.” Compl. ¶ 39. Plaintiffs argue that these failures are arbitrary and contrary to law because “[t]he ATSA explicitly mandates that the Federal Aviation Administration’s (FAA) personnel management system as defined in 49 U.S.C. § 40122 shall apply to [screeners],” and the FAA incorporates in its RIF standards veterans’ preference, preference for permanent as opposed to temporary employees, length of federal service, and restoration rights pursuant to 49 U.S.C. § 40122(g)(1). See Compl. ¶¶ 20-25. For the reasons that follow, the Court concludes that because ATSA § 111(d) commits to TSA’s discretion the design of RIF standards, the agency’s action is unreviewable. The Administrative Procedure Act (“APA”) provides that “[t]he reviewing-court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (courts will uphold a decision of less than ideal clarity if the agency’s rationale may reasonably be discerned); see also Cellco P’ship v. Fed. Commc’ns Comm’n, 357 F.3d 88, 93-94 (D.C.Cir.2004) (noting “arbitrary and capricious” review is “highly deferential ... presuming] the validity of agency action ... [which] must [be] affirm[ed] unless the Commission failed to consider relevant factors or made a clear error in judgment.”) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). However, judicial review of agency actions is allowed under the APA, “except to the extent that ... agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Courts “begin with the strong presumption that Congress intends judicial review of administrative action,” but hold themselves without jurisdiction to conduct a review in “those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Springs, 362 F.Supp.2d at 702-03 (quoting Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) and Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). “There is no law to apply if ‘the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s discretion.’ ” Springs, 362 F.Supp.2d.at 703 (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). In this case, Plaintiffs ask the Court to review the TSA’s RIF standard against FAA RIF standards that Plaintiffs contend the TSA was bound to follow under 49 U.S.C. § 114(n). In the foregoing analysis, the Court determined pursuant to the first step of the Chevron analysis that 49 U.S.C. § 114(n) does not apply to TSA airport security screeners. See supra § 111(A). The ATSA “offers no guidance on how TSA should implement a RIF,” but instead ATSA § 111(d) “explicitly authorizes the exercise of broad discretion not constrained by the judicial review provisions contained in the APA.” Springs, 362 F.Supp.2d at 703; see also AFBE v. FLRA 46 F.3d 73, 76 (D.C.Cir.1995); Colorado Nurses Assoc. v. FLRA 851 F.2d 1486, 1489 (construing a statute similar to ATSA § 111(d) to provide an agency with “unfettered discretion”). Consequently, any judicial review of the TSA’s RIF standard would both lack any legal basis or legal standard against which to measure its capriciousness, and would fail to respect Congress’s express intent that the TSA have broad discretion in making employment decisions for security screeners. See Springs, 362 F.Supp.2d at 703 (“the sweeping nature of ATSA § 111(d) exempts the TSA from adhering to the FAA RIF procedures ... and the ATSA itself contains no provisions directing TSA how to implement RIFs against which this Court could scrutinize TSA’s conduct. In addition, ATSA § 101(n), 49 U.S.C. § 114(n), grants the Under Secretary the authority to make appropriate modifications to the FAA personnel management system, the default system put in place by Congress. There is simply nothing to which this Court could turn to evaluate whether the RIF standards developed by TSA were arbitrary or capricious.”) (internal citations omitted). In short, ATSA § 111(d) grants the TSA discretion to incorporate or not incorporate in its RIF the termination criteria Plaintiffs complain were not incorporated. This Court does not have jurisdiction to review that exercise of discretion. Count III of Plaintiffs’ Complaint is therefore dismissed. E. Plaintiffs Claim that the TSA RIF Violated the Age Discrimination in Employment Act by Disparately Impacting Screeners Over 4,0 Years Old Fails to State a Claim (Count IV) In Count IV, Plaintiffs claim that “[t]he RIF procedure violates the Age Discrimination in Employment Act (ADEA), 29 USCA § 621 et seq., in that it disparately impacts employees over 40 years old.” See Compl. ¶¶ 44-46 (Count IV— ADEA). Because the ADEA is not part of federal personnel laws, TSA’s security screeners are entitled to the ADEA’s protection. See supra, Section 111(A). Plaintiffs’ ADEA claims shall be dismissed, however, because under the ADEA, claims of discrimination based on disparate impact are not cognizable. A claim of disparate impact is predicated on “proof that the employer utilizes ‘employment practices that are facially neutral in their treatment of different groups but ... in fact fall more harshly on one group than another and cannot be justified by business necessity.’ ” Def.’s Mem. to Dismiss at 23 (quoting Mullin v. Raytheon Co., 164 F.3d 696, 699-700 (1st Cir.1999) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977))). Defendant points out that Although neither the Supreme Court nor this Circuit has expressly decided the issue, see Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (“we have never decided whether a disparate impact theory of liability is available under the ADEA”); Roger v. Reno, 98 F.3d 631, 639 (D.C.Cir.1996) (“assum[ing] without deciding that disparate impact analysis applies to age discrimination claims”); two District of Columbia district court decisions subsequent to Roger have concluded that the ADEA does not allow for disparate impact claims. See Evans v. Atwood, 38 F.Supp.2d 25, 30 (D.D.C.1999) (finding ADEA does not allow for disparate impact claims because its text does not specifically provide for such claims); Hyman v. First Union Corp., 980 F.Supp. 38, 41 (D.D.C.1997) (finding claim of liability based on disparate impact theory not cognizable under ADEA). In addition, the D.C. Circuit recently has observed (in a different context) that the Supreme Court “has been relu