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Shockingly, the Obama administration’s Federal Aviation Administration (FAA), to achieve “racial diversity” among air traffic controllers (ATCs), killed a successful agency program that established accredited aviation degree curricula in 36 colleges and universities in 23 States and Puerto Rico to prepare the best future ATCs on a color-blind basis. Then it told 2,000 to 3,500 ready-to-hire, highly qualified graduates of those programs that they were of the wrong race and that their names were “purged.” The FAA’s plan to hire based on race is not just unconstitutional, illegal, and unfair to men and women of all races who the FAA purged, it will get people KILLED.

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Brigida v. U.S. Department of Transportation

Issue:

Whether the Federal Aviation Administration (FAA) violated the Constitution’s equal protection guarantee by its adoptions of new hiring practices to achieve racial diversity?

Plaintiff:

Andrew J. Brigida, represented by MSLF with Michael Pearson, Esq., a former air traffic controller (ATC) and member of Curry, Pearson & Wooten, PLC in Phoenix, serving as local counsel

Defendants:

U.S. Department of Transportation; Anthony R. Foxx, Secretary, U.S. Department of Transportation; FAA; Michael Huerta, Administrator, FAA; Stephanie Jones, Acting Director, Departmental Office of Civil Rights, and U.S. Department of Transportation

Court:

U.S. District Court for the District of Arizona
Unknown

Beginning in 1995, to ensure the availability of well qualified applicants to replace the steady and increasing stream of retiring ATCs—for whom the mandatory retirement age is 56—the FAA collaborated with universities and colleges to create accredited degree programs in diverse Collegiate Training Initiative (CTI) schools.  Then, the FAA gave a hiring preference to veterans, those with CTI program degrees, references from CTI administrators, and “well qualified” rankings on the challenging Air Traffic Selection and Training exam (AT-SAT)—a validated, proctored, eight-hour, computer-based test. 

In May of 2013, FAA Administrator Michael Huerta announced plans to “transform” the FAA into “a more diverse and inclusive workplace….”  The announcement was accompanied by a suspect analysis that purported to show women and minorities as “underrepresented” in those the FAA hired.  In December of 2013, the FAA began its new hiring process and told 2,000 to 3,000 trained and qualified graduates of CTI programs and veterans—who were on the FAA’s referral list and ready for immediate hire—that:  their AT-SAT scores were not valid; they would be required to pass a non-validated and non-monitored “Biographical Questionnaire,” before being able to retake the AT-SAT; and they must then reapply.  The FAA “purged” its files of the 2,000 to 3,000 trained and qualified CTI graduates and veterans and opened the position to all English-speaking citizens with high school diplomas.

On December 30, 2015, MSLF filed its class action lawsuit on behalf of 2,000 to 3,500 applicants to become ATCs who met the FAA’s time-tested and rigorous tests for employment as air traffic controllers (ATC) but were rejected after the FAA announced new minority hiring plans.  MSLF charges that the FAA’s actions violate the equal protection component of the Due Process Clause of the Constitution’s Fifth Amendment and Title VII of the Civil Rights Act of 1964.   On April 18, 2016, MSLF filed its First Amended Complaint.

On July 15, 2016, Congress passed the Federal Aviation Administration Extension, Safety, and Security Act of 2016 which, inter alia, addressed the hiring of ATCS positions by the FAA.  The Act provides that those applicants who were disqualified previously from hiring because of the Biographical Questionnaire could reapply under a new hiring process; however, the Act contains no guarantees that Mr. Brigida or any of the class members would actually be hired by the FAA.  As a result of the Act, MSLF filed a Second Amended Complaint, adding additional allegations explaining why Mr. Brigida and the class are still injured as a result of the FAA’s actions.  Federal defendants filed a motion to dismiss and for a change of venue on September 16, 2016, which MSLF opposed in a filing made on September 30, 2016.  Federal defendants filed a reply on October 11, 2016.  On November 1, 2016, the district court in Arizona granted federal defendants’ motion and transferred the case.

On December 2, 2016, MSLF field a motion for reconsideration in the U.S. District Court for the District of Columbia, requesting the federal district court to restore Mr. Brigida’s request for equitable relief or, in the alternative, restore Mr. Brigida’s constitutional claim.  On January 6, 2017, federal defendants filed an opposition to the motion to which MSLF replied on January 27, 2017.

 

 
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