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Federal District Court Again Urged to Reverse Fatally Flawed FAA Ruling

Jan 27, 2017 | by William Perry Pendley

DENVER, CO.  A nonprofit, public-interest legal foundation with decades of experience enforcing the Constitution’s equal protection guarantee today again urged a Washington, D.C. federal district court to reconsider an order of an Arizona federal district court on November 7, 2016, that dismissed portions of its lawsuit against the Federal Aviation Administration (FAA) and other agencies and officials for violating its client’s rights.  Mountain States Legal Foundation (MSLF), for thousands who met the FAA’s time-tested and rigorous tests for employment as air traffic controllers (ATCs) but were purged after the FAA announced minority hiring plans, sued in December of 2015, charging violation of the equal protection component of the Due Process Clause of the Fifth Amendment and Title VII of the Civil Rights Act of 1964.  The class of 2,000 to 3,500 individuals is represented by Andrew J. Brigida who holds two B.S. aviation degrees from Arizona State University and scored 100 percent on the FAA’s ATC aptitude test.  The Arizona federal district court dismissed the equal protection count, limited the remedies available to Mr. Brigida, dismissed some of the defendants, and transferred the case to Washington, D.C.  Michael Pearson, Esq., a former ATC of Curry, Pearson & Wooten, PLC in Phoenix, is local counsel. 

“The district court’s ruling failed to consider the actual discriminatory action alleged by Mr. Brigida, that is the FAA’s purging of the qualified applicant register, in striking his claim for equitable relief, which, at the motion to dismiss stage, is premature, not based on demonstrated facts, and a clear error of law,” said William Perry Pendley, MSLF’s president. 

Beginning in 1991, 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 3,500 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 3,500 trained and qualified CTI graduates and veterans and opened the position to all English-speaking citizens with high school diplomas.

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Brigida v. U.S. Department of Transportation

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