UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. BREEN 58 Ames Road Lisbon, CT 06351,
MILTON J. TORRES, III 16071 S.W. 73rd Street Miami, FL 33193,
RICHARD C. ANDERSON 1945 67TH Avenue North St. Petersburg, FL 33702,
RONALD J. CONSALVO 5 Devonshire Drive Glassboro, NJ 08028,
MARK JAFFE 918 West Lovers Lane Arlington, TX 76013,
DARRELL G. MOUNTS 10230 Melody Drive Northglenn, CO 80260-6044,
JOHN O’CONNELL 1776 Havenshire Lane Brighton, MI 48114-8737,
MICHAEL J. SHELDON 151 Gulf Street Milford, CT 06460,
JERRY VANVACTER 2424 Popular Avenue Duncombe, IA 50532,
Plaintiff Class Representatives,
and

) ) ) ) ) ) ) Civil Action No. 05-00654 (RWR) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Ed Abbott 759 E. Sunshine Lane Cedar City, UT 84720,
Charles N. Abney 4032 Jonesboro Road Hampton, GA 30228,
Bruce Abrahamsen 4344 Stones River Court New Port Richey, FL 34653,
Iftikhar Ahmad 812 Kenneth Place, SE Leesburg, VA 20175,
David L. Alexander 2659 S. Weber Rapids Place Meridian, ID 83642,
Joseph B. Allen 5091 Carl Albert Road McAlester, OK 74501,
Wendell B. Allen 128 Bransford Drive Macon, GA 31216,
David Almaguer 1126 George Lane Boubonnais, IL 60914,
Robert R. Aluni 7126 7th Street North Princeton, MN 55371,
Frederick J. Amend 13299 E. Exposition Drive Aurora, CO 80012,
Gary V. Amero 442 Hammond Street Bangor, ME O4401,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
2

Carmen J. Amos 133 Hay Street Park Forest, IL 60466,
Francis M. Anderson 115 Renners Run Road Mt. Morris, PA 15349,
Debra Anderson 309 Rockwell Road Jackson, TN 38305,
Jonathan Anderson RR1, Box 64 Reynolds, ND 58275,
Pamela K. Anderson 305 Oakridge Court Columbia, MO 65203,
Bernard C. Anderson 675 Old Medford Avenue Medford, NY 11763,
David A. Anderson 1832 Hazen Road Green Bay, WI 54311,
James E. Anderson 1220 Harvey Street Green Bay, WI 54302,
Charles Andries 14131 Flamingo Bay Lane Moreno Valley, CA 92553,
Charles E. Anesi 2005 S. Hieland St. Anne, IL 60964,
John Craig Annen 11966 195th Circle NW Elk River, MN 55330,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
3

John V. Anselmo 204 Wimbleton Circle Warner Robins, GA 31093,
Jeffrey J. Antush 39157 Camelot Way Avon, OH 44011,
Kenneth J. Archibald 149 River Rock Court Santee, CA 92071,
Pedro A. G. J. Armenta 1702 Dove Creek Drive San Angelo, TX 76901,
Stephan Y. Armstrong 657 Fisher Drive Watsontown, PA 17777,
Paul Arnold 125 Hawknis Court Germantown, OH 45237,
John K. Arrow 3586 NY Rte 206 Whitney Point, NY 13862,
Denise A. Ashley 7985 Rainey Street La Mesa, CA 91942,
Donald J. Ashley 7985 Rainey Street La Mesa, CA 91942,
Joe B. Askew, Jr. 4549 Little Ridge Drive Birmingham, AL 35242,
Tyrone Austin 4716 Malpaso Lansing, MI 48917,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
4

Cynthia Autry 2085 Westport Road Westport, TN 38387,
Thomas Avalos 2783 Kingsbury Avenue Hemet, CA 92545,
Bruce Allan Ayer 41 Beech Grove Avenue Glenburn, ME 04401-1432,
Darryl W. Ayers 2332 Carmel Road North Newburgh, ME O4444,
Archer Bailey P.O. Box 135 Sharon Center, OH 44274,
Ronald M. Balfour P.O. Box 2373 Ramona, CA 92065,
Dianne V. Barnes 63 Chestnut Hill Lane Columbus, NJ O8022,
Rickie Lane Barnett 2980 Thames Trail Fort Work, TX 76118,
Kelli Marlar Barth 18721 Northwest 11 Street Pembroke Pines, FL 33029,
Frances E. Bartlett 3712 S. Cr 101 E Clayton, IN 46118,
C. Allen Basore, Jr. 3338 E. Co. Rd, 900S Cloverdale, IN 46120,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
5

Charles R. Basye

)

15000 West US Hwy 40

)

Rocheport, MO 65279,

)

)

Michael C. Batcha

)

40 Creekside Drive

)

Macon, GA 31210,

)

)

John P. Batchelder

)

P.O. Box 1878

)

Tarpon Springs, FL 34688,

)

)

Pamela Batson

)

326 Round Top Road

)

Lansing, MI 48917,

)

)

Nancy A. Batye

)

950 East Calvin

)

Hartsburg, MO 65039,

)

)

Arlene Bauder

)

1435 Riverview Drive

)

Huron, SD 57350,

)

)

Lisa Kathryn Baughn

)

92 Terry Lane

)

Williston, VT O5495,

)

)

Christopher W.H. Beale

)

17164 SE 100th Street

)

Newcastle, WA 98059,

)

)

Jorge L. Becerril

)

Aventura De Encantada Apt 5409 )

Trujillo Alto, PR 976,

)

)

Gary Bennetts

)

516 55th Way SE

)

Auburn, WA 98092,

)

)

G. Peter Berggren

)

150 Gail Street

)

Hollidaysburg, PA 16648,

)

6

)

Eric J. Berglund

)

40887 190th Street, SW

)

East Grand Forks, MN 56721,

)

)

Brett R. Bergren

)

5257 S. Espana Circle

)

Centennial, CO 80015,

)

)

Denise G. Bergren

)

5257 S. Espana Circle

)

Centennial, CO 80015,

)

)

Robert M. Bermudez

)

108 Breakwater Bay

)

Hermitage, TN 37076,

)

)

Kenneth R. Bernard

)

21926 Windover Drive

)

Ashburn, VA 20148,

)

)

Russell Berry

)

15944 SW 151 Terrace

)

Miami, FL 33196,

)

)

Marlene Berry

)

15944 SW 151 Terrace

)

Miami, FL 33196,

)

)

Alan B. Bertram

)

3219 Blume Street, N.E.

)

Albuquerque, NM 87111,

)

)

Jeffrey D. Bittner

)

18 Mimosa Lane

)

Pilesgrove, NJ O8098,

)

)

Lisa M. Bjork

)

7060 E. Painted Vista Court

)

Prescott Valley, AZ 86314,

)

)

7

Tye C. Bjorkman P.O. Box 2751 Edgewood, NM 87015,
Vanessa Blake 478 Foxridge Drive Leesburg, VA 20175,
Joseph G. Blanco 28811 Flower Park Drive Canyon Country, CA 91387,
Gary L. Blascziek 1717 White Cloud St., N.E. Albuquerque, NM 87112,
Gordon L. Bocher 1673 Linden Blvd. Vineland, NJ O8361,
John Bogusch 1194 N. Meadow Drive Kankakee, IL 60901,
Angel A. Bonilla P.O. Box 810136 Carolina, PR 00981-0136,
Paul Borowski 6 Kanungum Trail Shelton, CT O6484,
James D. Bottom 1611 Rangeline Road Greencastle, IN 46135,
George Boukas 159-19 84th Drive Jamaica, NY 11432,
Sandra Bowie 5877 Nina Place #2W St. Louis, MO 63112,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
8

Angela B. Bowman P.O. Box 303 Choccolocco, AL 36254,
Gary L. Bowman 903 Mariana Circle Duncansville, PA 16635,
Marshall W. Boyette 2602 Michael Lane Jonesboro, AR 72404,
Neva E. Boyles 3658 NE 114th Avenue Portland, OR 97220,
David L. Bradley 217 Circle Mauka Street Wahiawa, HI 96716,
Barbara Bradshaw 3397 Dorchester Drive San Diego, CA 92123,
Scott Lewellyn Brandes 13428 182nd Ave NW Elk River, MN 55330,
David Brooks 5533 Timothy Lane Bath, MI 48808,
Brett C. Broughton 28 Hampton Circle Warner Robins, GA 31093,
Martin Brown 707 NW Alder St McMinnville, OR 97128,
Jeffrey Lee Brown 4621 Vista Meadows Drive Keller, TX 76248-5868,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
9

Elizabeth Jordan Brown 4011 Cornerstone Drive Jonesboro, AR 72401,
Barbara Ann Brown 116 Gables Gate Court Apex, NC 27539,
Melvin L. Brown 24121 17th Ave S Des Moines, WA 98198,
Charles G. Brown, Jr. 116 Gables Gate Court Apex, NC 27539,
Franklin R. Brown, Jr. 1916 Links Circle Apt 8 Jonesboro, AR 72404,
Randal Brubaker 607 Coolidge Avenue Hemet, CA 92543,
Mary Bruneau 1423 Canyon Rim Dr. N.E. Albuquerque, NM 87112,
Dave Bruton 401 Picone Drive Harahan, LA 70123-4440,
Malcolm P. Brydon 45 Douglas Drive Newport, ME O4953,
Kenneth A. Brzyski 131 Lochland Drive Cheektowaga, NY 14225,
Norman B. Buckallew 3519 Kites Ldg. Rd Florien, LA 71429,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
10

Brian K. Bullard 1913 Dale Court Oxford, AL 36203,
Paul F. Burke RR1 Box 3328 Pittsfield, ME O4967,
John D. Bussey 110 N.W. 122nd Street Gainesville, FL 32607-1126,
Gordon Buswell 18 Meadow Crest Lane Waterbury, VT O5676,
Arthur L. Butler 2271 High Meadow Drive Murfreesboro, TN 37129,
Helen D. Byrum 209 Castlewood Drive Cheektowaga, NY 14227,
Paul Cahoon 115 Ty Drive Anniston, AL 36206,
Daniel W. Cairns 251 East Market Street Derby, KS 67037,
David Campbell 1306 Gerst St. Louis, MO 63130,
Jonathan W. Campbell P.O. Box 10121 Macon, GA 31297,
Cathy Campbell 13 Savin Park West Haven, CT O6516,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
11

Thomas M. Campos 1501 Manor Drive Casper, WY 82609,
Ernesto V. Cantu 14833SW 164 Terrace Miami, FL 33187,
Vernon L. Carder, Jr. 1311 1/2 Vermont Avenue Boise, ID 83706,
William J. Cardin 2101 3rd Avenue North Great Falls, MT 59401,
Kevin B. Carl 1133 Cherry Street Montoursville, PA 17754,
Sandra Carney 444 Stonemeadow Road Clarksville, TN 37043,
Lionel Carney 444 Stone Meadow Road Clarksville, TN 37043,
Shawn Carroll 2305 Outer Circle Drive Crestwood, KY 40014,
Roy M. Carroll 120 Rockwell Drive Riverside, AL 35135,
Diane Carter 9561 County Road 371 New Bloomfield, MO 65063,
Carroll J. Carter 108 Breakwater Bay Hermitage, TN 37076,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
12

Jean K. Caruso

)

47 New York Street

)

Bangor, ME O4401,

)

)

Donald J. Carver

)

1918 Covey Drive

)

Jonesboro, AR 72404,

)

)

Wayne A. Catt

)

2331 Amber Glen Drive

)

Murfreesboro, TN 37128,

)

)

Kevin J. Cavanagh

)

94-1028 Makakoa Loop

)

Waipahu, HI 96797,

)

)

William Cecil

)

507 Jane Court

)

Jefferson, MD 21755,

)

)

Oral R. Chadwick

)

8020 Angle Park Drive Apt 108

)

Raleigh, NC 27617,

)

)

Stephen F. Champa

)

10790 NW 14th Street Unit 197

)

Planttion, FL 33322,

)

)

Michael L. Chapman

)

468 West Shore Road

)

South Hero, VT O5486,

)

)

Robert Chapman

)

107 1st Avenue NE

)

Dayton, IA 50530,

)

)

Denrad Chapman

)

107 1st Avenue NE

)

Dayton, IA 50530,

)

)

Edward Chastain

)

161 Maplewood Cv.

)

Dyersburg, TN 38024,

)

13

Andrea Chay 17639 SE 292nd Pl. Kent, WA 98042,
Walter J. Cherluck, Jr. 409 Riverview Drive Dewitt, MI 48820-8784,
Steven M. Cherry 1424 Knollcrest Drive Fort Dodge, IA 50501,
Paul J. Chilbert 1114 Broad Street Montoursville, PA 17754,
James E. Chilen 126 Hawaii Loa Street Honolulu, HI 96821,
Jesse Clark 1565 Chaparell Drive Toquerville, UT 84774,
Robert Martin Coffey 168 Lehn Springs Drive Williamsville, NY 14221,
Ronald Coleman 4813 Carson Street Torrance, CA 90503,
Purvis R. Collier 105 Wildwood Trail Bonaire, GA 31005,
Richard L. Collier 1950 Dunedin Drive Old Hickory, TN 37138,
William G. Colwell 852 NE 80th Seattle, WA 98115,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
14

Madison W. Combs, Jr.

)

408 Pepper Street

)

Muncy, PA 17756,

)

)

Bernard Condon

)

3907 Clearacre Ln #21

)

Reno, NV 89512,

)

)

Montie A. Condry

)

3309 Primrose court

)

Grand Forks, ND 58201,

)

)

Gerald A. Conlon

)

19 Sage Circle

)

Essex Junction, VT O5452,

)

)

Michael E. Connor

)

2113 Garland Way

)

Hemet, CA 92545,

)

)

Mark D. Connor

)

52 River Bend

)

San Angelo, TX 76903,

)

)

Jeff Conyers

)

450 Winchester Road

)

Fairlawn, OH 44333,

)

)

Stephen D. Cook

)

1482 17th Street NE

)

Grand Forks, ND 58201-9609,

)

)

Thomas G. Cooper

)

920 Cloudview Cir.

)

Reno, NV 89512,

)

)

Joseph Coords

)

7958 Mission Center Court Apt. H )

San Diego, CA 92108,

)

)

Holly Wilson Coppage

)

1613 Woodland Drive

)

Oxford, AL 36203,

)

15

Larry Corbett 1128 Sturbridge Drive Medina, OH 44256,
Marguerite A. Corbo 41 Green Mountain Drive St. Albans, VT O5478,
William A. Corbo, Jr. 41 Green Mountain Drive St. Albans, VT O5478,
Paul E. Cording P.O. Box 209 Parowan, UT 84761,
Carl Corwin 937 Amherst Road, NE Massillon, OH 44646,
John A. Cosgrove 1901 Pittypat Run Lagrange, KY 40031,
Melvin Costict 4261 Long Creek Road Memphis, TN 38125,
John J. Coughlin 20400 Turkey Ridge Road Hartsburg, MO 65039,
Dennis H. Craig 2816 Hubbard Lane Oxford, AL 36203-4704,
Michael D. Crain 7497 Audubon Road Princeton, MN 55371,
Janet S. Crandell 1631 Amberina Drive Lansing, MI 48917,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
16

Curtis Roger Crane

)

217 Norfolk Ave

)

Elk River, MN 55330,

)

)

Donna Jo Crigler

)

7800 Detrick-Jordan Pike

)

New Carlisle, OH 45344,

)

)

Gary Allen Crigler

)

7800 Detrick-Jordan Pike

)

New Carlisle, OH 45344,

)

)

Donald E. Cronan

)

13 Stacy Street

)

Milton, VT O5467,

)

)

Kathyrn L. Crutchfield

)

2360 E. Preserve Way Apt 107

)

Miramar, FL 33025,

)

)

James W. Curlin, Jr.

)

7814 Vista Avenue

)

Grand Ledge, MI 48837,

)

)

Kenneth C. Currier

)

11220 SW 130 Avenue

)

Miami, FL 33186,

)

)

Marc A. Custis

)

962 Southport Drive

)

Medina, OH 44256-3018,

)

)

Ernest R. Cutrer

)

3639 Bunker Hill Drive

)

Atlanta, GA 30331,

)

)

Michael J. Dabb

)

39311 Via Zargoza

)

Murrieta, CA 92563,

)

)

Ivan K. Daikoku

)

47-425 C Ahuimanu Road

)

Kaneohe, HI 96744,

)

17

Paul W. Danigelis 1084 Applegate Lane East Lansing, MI 48823,
Diane Dankers 18 Jewel Road Millville, NJ O8332,
Angela J. Danner 7900 Cannonwood Drive Fort Worth, TX 76137,
Larry M. Davis P.O. Box 3813 Oxford, AL 36203,
Scott A. Davis 6271 Beechfield Lansing, MI 48911,
Gloria J. Day 401 Woodhaven Road Centerville, GA 31028,
Donavon R. Decker 730 Madison Blvd Huron, SD 57350,
Timothy E. DeGrazio 12316 SW 146 Street Miami, FL 33186,
David T. Dellinger 3457 N. Treasure Drive Prescott Valley, AZ 86314,
Carlos DeMoss 757 Columbia Drive Oxnard, CA 93033,
Joseph V. DeSira 3403 Silverspring Drive DeWitt, MI 48820,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
18

Sheila Desmond P.O. Box 1403 Sloughhouse, CA 95683,
Dennis R. Detrow 9812 Lorelei Lane, N.E. Albuquerque, NM 87111,
Gregory L. Deveraux 2757 S. Nova Lane Meridian, ID 83642,
Samuel A. DeViney 2724 Noble Drive Jonesboro, AR 72401,
John S. Dibble P.O. Box 3732 Englewood, CO 80155,
Warren A. Dickerson 7425 130th Street Ct. E. Puyallup, WA 98373,
Kevin S. Diehl 13539 Lunker Court Odessa, FL 33556,
Jeffrey DiVito 109 Grant Street Elkins, WV 26241,
Gregory G. Dixon 841 Beach Avenue SE Huron, SD 57350,
David E. Dodge 1950 Round Top Road Montoursville, PA 17754,
Donna M. Dodson 5009 Rugby Avenue Bethesda, MD 20814,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
19

Terry J. Doerr 2103 Markwood Road Louisville, KY 40223,
William J. Dolan 6721 Ridgeview Court Abrams, WI 54101,
Tom Domingo Rt 2, Box 228 Gilman Road Elkins, WV 26241,
Peter N. Donatucci 163 Woodhill Drive Amherst, OH 44001-1478,
Laura T. Donnelly 7724 E. Crooked Creek Tr. Prescott Valley, AZ 86314,
Francis P. Doody 1108 New Haven Road Durham, CT O6422,
Mary I. Doody 1108 New Haven Road Durham, CT O6422,
Dean A. Downie 435 Natalie Drive Raleigh, NC 27603,
Steven E. Drew, Sr. 1596 Idle Drive Clearwater, FL 33756,
Rhonda Dudley 5232 Coral Way San Angelo, TX 76904,
Michael R. Duff 1567 S. Naples Street Aurora, CO 80017,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
20

Tom Duplessie 247 Ashland Avenue Elyria, OH 44035,
Ralph L. Duroy 5104 Slater Road Anderson, SC 29621,
Mark D. DuRussell 809 Elm Street Watsontown, PA 17777,
Donald W. Dutherage 21 Ridgevale Road Jacksonville, AR 72076,
Sybil M. Dutton 2749 Carmel Drive Great Falls, MT 59404,
Franklin E. Eastman 38 Thasha Lane Unit E1 Essex Junction, VT O5452,
Warren Eccles 47R Talmadge Hill Road Prospect, CT,
William L. Eckel 2710 Highland Terrace McAlester, OK 74501,
John Edelman 88 Plymouth Street Pembroke, MA 2359,
Lee Edmiston 88 Carthage Road Jackson, TN 38305,
Mahlon E. Edmonson 1015 Sunset Drive Grnd Forks, ND 58201,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
21

Walter David Edwards

)

P.O. Box 66797

)

Albuquerque, NM 87193-6797,

)

)

Jody L. Edwards

)

34 Colonial Lane

)

Bellport, NY 11713,

)

)

Joan M. Ehlert-McBride

)

2341 Park Wood Drive

)

Williamston, MI 48895,

)

)

Ada M. Eldredge

)

P.O. Box 3008

)

Greenwood, MS 38935-3008,

)

)

Denise M. Elias

)

365 Kingwood Street

)

McMinnville, OR 97128,

)

)

Varic Ellefson

)

7311 Coal Creek Parkway SE

)

Apt C102

)

New Castle, WA 98059-3171,

)

)

David Lloyd Ellsworth

)

435 Aswan Street

)

Sparks, NV 89436,

)

)

Michael C. Elmes

)

184 Attakapas Tr

)

DeRidder, LA 70634,

)

)

Arloe R. Erickson

)

2699 south 19th Street

)

Grand Forks, ND 58201,

)

)

Penny Ertner

)

9400 SW Durham Lane

)

McMinnville, OR 97128,

)

)

22

Carlos J. Escalante

)

1508 W. Marhill Road

)

Green Bay, WI 54313,

)

)

William Evans

)

165 Dracut Hill Road

)

Vaughn, MT 59487,

)

)

Bonnie Fairbanks-Eastman

)

1 Williamson Lane

)

Orono, ME O4473,

)

)

James A. Fancher

)

809 Watson Drive

)

Oxford, AL 36203,

)

)

Anthony J. Felderhoff

)

31 Crater Lake Drive

)

Coram, NY 11727,

)

)

Joseph Felt

)

6510 SW 65th Street

)

Miami, FL 33143-3214,

)

)

Robert B. Felts

)

6357 Governor McDonald Drive

)

Macon, GA 31216-5208,

)

)

Danny J. Ferraro

)

2017 N "A" St

)

McAlester, OK 74501,

)

)

Paul E. Ferry

)

10911 Douglas Lane

)

North chmplin, MN 55316,

)

)

Daniel W. Fichuk

)

2334 59th Avenue

)

Princeton, MN 55371,

)

)

Kenneth Filewich

)

57 Castner Ave

)

Donora, PA 15033,

)

23

Richard S. Fischer 130 Iris Street Broomfield, CO 80020,
Laurie Fitzgerald P.O. Box 321 Princeton, MN 55371,
Kenneth E. Fix 102 McNairy Lane Smyrna, TN 37167,
William E. Flavors 24462 E. Davies Way Aurora, CO 80016,
Kerry G. Fleming 145 Flagler Ave Cheshire, CT O6410,
Robert P. Fletcher 49 Donna Cr. Port Matilda, PA 16870,
Berta Folh 9421 S.W. 55 Street Miami, FL 33165,
Lachlan P. Folstrom 1720 131st Avenue NW coon Rapids, MN 55448,
William Forman 2630 Parkview Drive San Angelo, TX 76904,
Tommy D. Forte 8530 NW 23rd Street Pembroke Pines, FL 33024,
Robert V. Francis Rte 4 Box 248B Elkins, WV 26241,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
24

Bob Franklin

)

1655 Quail Drive

)

St. Anne, IL 60964,

)

)

Richard Freed

)

11 Pine Needle Drive

)

Manorville, NY 11949,

)

)

Eugene M. Freer

)

3820 Countyline Road

)

Emmett, ID 83617,

)

)

Stanley G. Fulgham

)

4501 Summerbrook Circle

)

Fort Worth, TX 76137,

)

)

Gary L. Gallup

)

3137 Hillside Lane

)

The Villages, FL 32162,

)

)

Raymond J. Gearity

)

77 Harriet Road

)

North Babylon, NY 11703-4704,

)

)

John F. Gehle

)

358 Halifax Drive

)

Vandalia, OH 45377,

)

)

Frank Joseph Geletei, Jr.

)

4329 Frank Street

)

Pittsburgh, PA 15227,

)

)

Donald J. Geringer

)

5672 Hazelgreen court

)

Terre Haute, IN 47802,

)

)

Warren C. Germain

)

503 S. Oakland Street

)

St. Johns, WI 48879,

)

)

Beth A. Gerrits

)

1315 Maple Avenue

)

Hollidaysburg, PA 16648,

)

25

Mark A. Gibson 1401 Valley Place Anniston, AL 36207,
Melvin Tina Gilbert 3291 NW 170 St Carol City, FL 33056,
George T. Gilligan, Jr. 46 Lane Street Bangor, ME O4401,
Robert Gilroy 19961 NW 2 Street Pembroke Pines, FL 33029,
Stanley A. Ginoza 98-1727 Ipuala Lp Aiea, HI 96701,
James M. Glick 4007 Cornerstone Blvd Jonesboro, AR 72401,
Joseph P. Goninan 3754 Wind Valley Drive Memphis, TN 38125,
Joseph D. Goodell 2983 Springland Drive Sparks, NV 89434-1624,
Robert Gordon 320 Pine Avenue Altoona, PA 16601,
Randall J. Gow P.O. Box 7673 Reno, NV 89510-7673,
Steven J. Gracia 740 Glen Mor St. Belleville, IL 62221,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
26

David Graham 7950 Maria Riverside, CA 92509,
George T. Graning 750 Chosea Springs Road Anniston, AL 36207,
Yvonne M. Grate 3820 E. Lake Place Miramar, FL 33023,
Ronald D. Gray 122 St. Albans Road Corinna, ME O4928,
Richard C. Gray 6194 River Styx Road Medina, OH 44256,
James G. Green 606 E. 4th Street Fowler, IN 47944,
Scott L. Green 1327 N 14th Street Fort Dodge, IA 50501,
Julia Greenway 9904 Hemlock Woods Lane Burke, VA 22015,
Erik C. Greer 606 Neff Road Grosse Pointe, MI 48230,
George B. Greschel 502 Wilderness Road Louisville, KY 40214,
Martha L. Grimsley 125 Valley Street DeRidder, LA 70634,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
27

John S. Gronski 511 N. Forest Ave #6 Bradley, IL 60915,
James F. Guillow 1528 Kohler Court Riverside, CA 92506,
Jean Ann Guinther 102 Woodbine Terre Haute, IN 47803,
Frances Gullo 15631 SW 16 CT. Pembroke Pines, FL 33027,
Gary R. Gustafson 13460 Forest Hill Grand Ledge, MI 48837,
William R. Gyzen E1397 Thiry Dacms Road Luxemburg, WI 54217,
Lisa Haddow 104 Tumbleweed Circle Centerville, GA 31028,
David Haeck 3608 70th Avenue NW Gig Harbor, WA 98335-8405,
Latricia D. Haight 145 11 SW 17th Court Davie, FL 33325,
Alice J. Haines 2047 29th Lane NE Issaquah, WA 98029,
Lisa L. Hainsworth 1749 NW Birch ST McMinnville, OR 97128,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
28

Delia G. Hale 5201 Saddle Ridge Trail San Angelo, TX 76904,
James W. Hale 5201 Saddle Ridge Trail San Angelo, TX 76904,
Talwyn L. Haley 326 Deer Run Road Hollidaysburg, PA 16648,
Karey D. Hall 105 Plantation Way Warner Robins, GA 31093,
Richard Hall 7499 Bay Meadows Drive Nampa, ID 83687,
Troy R. Hamm 6802 Port Orchard Drive Columbia, MO 65203,
Daniel O. Hammond 6865 North 42nd Street Grand Forks, ND 58203,
Georgianne Hanjoul 9824 Golf Course N.W. Albuquerque, NM 87114,
Robert G. Hargraves, Jr 50 Richard Road Fairfax, VT O5454,
John A. Harpool 132 South Avenue North Haven, CT O6473,
Deborah S. Harrelson 107 Majestic Trail Warner Robins, GA 31093,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
29

Patrick Harris 9909 Woodyard Cr. Upper Marlboro, MD 20772,
Winfred W. Harris 2103 Honeybee Creek Drive Griffin, GA 30224,
Karen Harris 17904 Invermere Avenue Cleveland, OH 44128,
Jane Hart 1150 Delray Lakes Drive Delray Beach, FL 33444,
Richard B. Hart 7605 Cocopah Drive Prescott Valley, AZ 86314,
Timothy Harvey 4750 Lincoln Blvd Marina Del Rey, CA 90292,
Alton D. Hatman, Jr. 2009 Lassiter Drive Goodlettsville, TN 37072,
Mark Haug 1265 Parkway Dr NW Salem, OR 97304,
William R. Hawkinberry 1252 Hathaway Avenue Lakewood, OH 44107,
Robert D. Hawkinson 5109 Memory Lane Wichita, KS 67212,
Michael D. Hawrelok 1710 20th Avenue S Grand Forks, ND 58201,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
30

Walter R. Hazard 10221 Fairgate Way Highlands Ranch, CO 80126,
Brenda L. Helmuth 11548 306th Avenue Princeton, MN 55371,
Michael A. Helwig 289 Henry Avenue Hughesville, PA 17737,
Dean Henderson 178 N. 2475 W. Circle Cedar City, UT 84720,
Mike Henry 1079 Hawthorne Lane Kankakee, IL 60901,
Michael C. Hiett 1481 Level Street Covina, CA 91724,
John K. Higganbotham 214 49th Avenue South Grand Forks, ND 58201,
Terry Gene Higgins 26780 140th Street Zimmerman, MN 55398,
James S. Hill 6326 Amanda Oaks Cir. N. Memphis, TN 38141,
Scott M. Hiller 59 Surrey Lane Hampden, ME O4444,
Ronald Hillman 107 Brueside Drive Hamden, CT O6514,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
31

Paul W. Hilscher 3925 Wolf Ct Green Bay, WI 54301,
Paul Hinga 3314 Cheery Lane Green Bay, WI 54313,
Oscar Hinojosa 157 Edinburgh Road San Angelo, TX 76901,
Samuel Scott Hipp 5511 Eveningside Lane Riverside, CA 92509,
Chris Hoffman 156 Queen Ann Drive Hollidaysburg, PA 16648,
Wendell L. Hoggatt 852 S W Goucher McMinnville, OR 97128,
Terry Lee Holamon P.O. Box 14032 Fort Worth, TX 76117,
Jay D. Holland 1610 Fountain Drive Anniston, AL 36207,
Charles Edwin Holland, Jr 28 Raintree Cove Grenada, MS 38901,
Christopher Holliman 2205 Mars Avenue Lakewood, OH 44107,
Lesley Hollister 296 Fox Trail Drive Bourbonnais, IL 60914,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
32

Franklin G. Holman

)

16711 Glenburn Avenue

)

Torrance, CA 90504,

)

)

Kimberly Holmes

)

114 Ian Ct

)

Stephens City, VA 22655,

)

)

Arnie E. Holmes

)

P.O. Box 74

)

Montoursville, PA 17754,

)

)

Daniel J. Holodick

)

2833 Route 2

)

Hermon, ME O4401,

)

)

John D. Hooper

)

2326 North Parkridge Court

)

Wichita, KS 67205,

)

)

Darryl P. Horton

)

1718 E 12th Ave.

)

Winfield, KS 67156,

)

)

Michal L. Hoskins

)

601 Koko Isle Circle

)

Honolulu, HI 96825

)

)

Robert Houser

)

9803 Somerford Road

)

Louisville, KY 40242,

)

)

Kevin Hoyt

)

505 NW 18 Pl.

)

McMinnville, OR 97128,

)

)

Sandra J. Hribal

)

RR#2, Box 170 S Fair Valley Road )

Martinsburg, PA 16662,

)

)

Stephen A. Hubbert

)

Rt. 1 Box 238

)

Stuart, OK 74570,

)

33

Jeffrey L. Huie 295 County Hwy 20 Oneonta, AL 35121,
David D. Hull 469 Travis Road Taylorsville, KY 40071,
Keith Humburg 1002 6th Ave SW Humboldt, IA 50548,
Stephen B. Hunter 2531 Glenwood Drive Grand Forks, ND 58201,
Robert M. Ingram 163 Quiet Road Sicklerville, NJ O8081,
Kalam A. Ishmael 10891 SW 152 Court Miami, FL 33196,
Roger W. Jaeger 2500 E. Highway MM Ashland, MO 65010,
Michael W. Jahn 336 S. Park Pl. East Aurora, NY 14052,
Larry Frank Jarrett 2006 Elmridge Drive Arlington, TX 76012,
Michael G. Javor 28004 133 1/2 Street Zimmerman, MN 55398,
Jacqueline Jeffrey P.O. Box 163582 Fort Worth, TX 76161,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
34

Kati Jennings

)

100 Amanda Drive

)

Ashland, MO 65010,

)

)

Peter E. Jensen

)

36 Andrea Lane

)

Milton, VT O5468,

)

)

Juan J. Jimenez

)

15489 Miami Lakeway N#201

)

Miami Lakes, FL 33014,

)

)

Robert E. Johnson

)

368 Read Lane

)

St. Albans, VT O5478,

)

)

Cynthia Lynne Johnson

)

336 Poplar Point Road

)

Perryville, MD 21903-1804,

)

)

Clyde H. Johnson

)

292 Wheelock Dr. N.E.

)

Warren, OH 44484,

)

)

Thomas D. Johnson

)

412 Verendrye Drive

)

Ft. Pierce, SD 57532,

)

)

Joseph L. Johnston

)

2738 Roosevelt Blvd, Apt 121

)

Clearwater, FL 33760,

)

)

Larry J. Johnston

)

9134 E. US Hwy 40

)

Terre Haute, IN 47803,

)

)

Denise C. Jones

)

14040 S.W. 72nd Avenue

)

Miami, FL 33158,

)

)

Oliver G. Jones

)

22701 43rd Ave

)

S. Kent, WA 98032,

)

35

Stephen L. Jones 14040 SW 72 Avenue Miami, FL 33158,
John E. Jones 6929 South Route 44 Hwy Jersey Shore, PA 17740,
Leslie Jones 136 Joy Ln. Jackson, TN 38305,
Linda M. Jordan 1125 SW Tall Oaks Drive McMinnville, OR 97128,
Martha H. Judson 34961 Aspen Lane Pine, CO 80470,
Royal J. Kainoa, Jr. 1535 Pensacola St., Apt PH5 honolulu, HI 96822,
K. Kalicharan 11920 SW 121 Ave Miami, FL 33186,
Harry C. Kancyr 13 Savin Park West Haven, CT O6516,
Daniel L. Kane 1012 Rogue's Way Green Bay, WI 54313,
Richard Kane 815 Sea Sounds Ave Marmora, NJ O8223,
Patricia A. Kast 2415 Fallbrook Place Escondido, CA 92027,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
36

Sharon Kay

)

1800 N Andrews Ave Apt. 10-D

)

Ft. Lauderdale, FL 33311,

)

)

James P. Kelley

)

16496 Mission Street

)

Hesperia, CA 92345-5847,

)

)

George E. Kelley

)

921 10th Avenue SE

)

East Grand Forks, MN 56721,

)

)

Kelly Irene Kendrick

)

1121 E. Geneva Drive

)

DeWitt, MI 48820,

)

)

Patrick Kerber

)

3801 Marquette Place #4F

)

San Diego, CA 92106,

)

)

Ralph E. Kerschner, Jr

)

3916 Evans Lane

)

Oxford, AL 36203,

)

)

David M. Khanoyan, Jr

)

17 Woodside Circle

)

Sturbridge, MA 01566-1347,

)

)

Thomas J. Kiewra

)

12 Dewar Drive

)

Yardville, NJ 8620,

)

)

Stephen J. Killgore

)

5430 Woodlake Avenue

)

Woodland Hills, CA 91367,

)

)

Philip Joseph Killpatrick

)

2901 32 Ave NE

)

St. Anthony Village, MN 55418, )

)

Mark A. King

)

777 Nebraska SW

)

Huron, SD 57350,

)

37

Billy J. Kingsley 1301 East Delaware Ave McAlester, OK 74501,
Rodney Kinkade 3617 Lynn Drive Prescott Valley, AZ 86314,
Sandra Kinsey 6989 Root Road North Ridgeville, OH 44039,
Robert C. Kipp 809 West Lane Lebanon, OH 45036,
Douglas J. Kirchner 4871 Autumn Lane Brooklyn, OH 44144,
Sheryl Klearman 15992 South Woodson Drive Ramona, CA 92065,
Gary P. Klimek 94 Kepner Hill Road Muncy, PA 17756,
Peter Raymond Klumpner 18577 Tyler Drive Elk River, MN 55330,
Robert J. Kohl 2898 Cedro Lane Walnut Creek, CA 94598,
Jane M. Kolias 435 Ledgeview Drive Huntington, VT 5462,
Karen L. Konschake 2282 Hallers Creek Lane Green Bay, WI 54313,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
38

Harry Konschake 2282 Hallers Creek Lane Green Bay, WI 54313,
Harry Koontz 115 Riggs Road Portland, TN 37148,
Ned Kramer 28920 Dune Lane, #101 Canyon Country, CA 91387,
Michael P. Krause 1507 12th Aveune S Grand Forks, ND 58201,
Jeffrey Kreider 8380 Pearl Road #203 Strongsville, OH 44136,
Eddie A. Krenzelok 108 Lincoln Cove Jonesboro, AR 72404,
Andrew Kressel 64 Wicks Path Commack, NY 11725,
Kenneth A. Krieger 1154 North Main Street Elmira, NY 14901,
Paul Joseph Krueger 3392 Primrose Court Grand Forks, ND 58201,
Charles Edmund Kuennen 7409 Ash Peak Drive Sparks, NV 89436,
Dan K. Kuroiwa 9801 Old Orchard Ct Terre Haute, IN 47805,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
39

Dianne Kurtock

)

10920 Paseo Montanoso

)

San Diego, CA 92127,

)

)

Kenneth Kushner

)

96 Carson Heights Drive

)

Ducansville, PA 16635,

)

)

Eric R. Labrecque

)

57 Allen Drive

)

Milton, VT O5468,

)

)

Margaret H. Lacey

)

34 Kenwood Drive

)

Sicklerville, NJ O8081,

)

)

David W. LaChance

)

3536 SW 17th Street

)

Miami, FL 33145,

)

)

Marc Lackman

)

1511 Meadowlark Drive

)

Great Falls, MT 59404,

)

)

Diane Lafreniere

)

2194 Chesapeake Drive

)

Annapolis, MD 21403,

)

)

Sharon Landy-Fayad

)

6738 Fry Road

)

Middleburg Heights, OH 44130,

)

)

John R. Langan

)

32307 Walker Road

)

Avon Lake, OH 44012-4107,

)

)

Sharon H. Lange

)

144 Southmoor Circle

)

Oxford, AL 36203,

)

)

Kevin R. Larkin

)

308 Catawba Circle

)

Seneca, SC 29672,

)

40

Debra L. Larkin

)

1021 Plaza Terrace

)

Kirkwood, MO 63122,

)

)

Jeffrey M. Larson

)

2078 Independence Drive

)

Boise, ID 83706,

)

)

Curtis F. Lasley II

)

120 Button Bush Ave

)

Stephens City, VA 22655,

)

)

Harlan A. Latham

)

2726 South 26th Street Apt#9

)

Grand Forks, ND 58201,

)

)

Lourdes M. Lay

)

1933 Andromeda Lane

)

Weston, FL 33327,

)

)

Deborah A. Lazor

)

911012 Laaulu, Apt C

)

Ewa Beach, HI 96706,

)

)

John Lazor

)

14856 SW 159 Ct

)

Miami, FL 33196,

)

)

Janelle Le Mire

)

Diamante 9, Bucare

)

Guaynabo, PR OO969,

)

)

Ted Lederer

)

813 E. Foley

)

Kankakee, IL 60901,

)

)

Ronald Leicht

)

2621 Brookridge Lane

)

St. Charles, MO 63301,

)

)

Kathryn Lemke

)

2650 235 Street

)

Duncombe, IA 50532,

)

41

James G. Lemmers 1079 Lemmers Rd Casper, WY 82601-9743,
Winton Lemoine 6326 W. 82nd Street Los Angeles, CA 90045,
Joanna L. Lewis 8387 Bono Road Terre Haute, IN 47802-5112,
William L. Liebeno 1430 N. Meridian Wichita, KS 67203,
Randell S. Liles 737 Highland Crest Hurst, TX 76054,
Roger D. Lingenfelter P.O. Box 2171 Casper, WY 82602,
Kenneth R. Lloyd 2535 7th Avenue West Bradenton, FL 34205,
Kevin M. Logan 6768 W. Galway Circle Dimondall, MI 48821,
Maria Lohlein P.O. Box 161409 Miami, FL 33116,
David W. Lombard 288 Meridian Way Henderson, NC 27537,
David Lopez 9321 SW 6 Street Pembroke Pines, FL 33025,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
42

Thomas Lovett

)

91 Park Hill Avenue

)

Massapequa, NY 11758,

)

)

Marc Lowther

)

1873 Oakdale Lane North

)

Clearwater, FL 33764,

)

)

William C. Lucas

)

6860 Carriage Hill Drive C31

)

Brecksville, OH 44141,

)

)

Randy Lueders

)

822 Powderhorn

)

Lansing, MI 48917,

)

)

George E. Lund

)

7407 Audubon Road

)

Princeton, MN 55371,

)

)

John J. Lynch

)

50 Jacobs Lane

)

Elkins, WV 26241,

)

)

Craig R. Mackoy

)

P.O. Box 74

)

De Smet, SD 57231,

)

)

John C. MacLeod

)

158 Emerson Mill Road

)

Hampden, ME O4444,

)

)

John A. MacNeil

)

2318 Rutledge Circle

)

Wichita, KS 67209,

)

)

William Madden

)

17550 Roy Street

)

Lansing, IL 60438,

)

)

Silas Madren

)

P.O. Box 492

)

Hamilton, VA 20159,

)

43

Ron Maisel 120 Guy Street Elkins, WV 26241,
Francis R. Malinovsky 7127 Beaver Lake Road Hughesville, PA 17737,
Dorey Marcincuk 6 Concord Road Manorville, NY 11949,
Joseph A. Marcincuk 6 Concord Road Manorville, NY 11949,
Robert L. Marshall 812 East Polk McAlester, OK 74501,
Tammy M. Martin 11990 SW 84th Avenue Miami, FL 33156,
John F. Martin 1305 Clairmont Lane NE Jacksonville, AL 36265,
Jimmy W. Mason 105 Ridgeview Drive Berlin, VT O5602,
Michael Masotto 8702 Los Altos Drive Buena Park, CA 90620,
David D. Masson 2162 Summerfield Drive Castle Rock, CO 80104,
Neil C. Mathisen 1909 Eagle Court Potterville, MI 48876,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
44

Frank Matkins 1101 Roundhouse Drive Saginaw, TX 76131,
John T. Mauriala 37959 280th Avenues NW Argyle, MN 56713,
Dean A. Mayfield 7603 Huey CT Raleigh, NC 27615,
Steven R. Mayhood 189 N. Randolph Ave Bradley, IL 60915,
Carol A. McAteer 517 Seventh Ave Folsom, PA 19033,
Warren E. McCall 58 Southeast 15th Street Huron, SD 57350,
Roger McCandless, Jr 5707 Woodchase Drive Anniston, AL 36206,
Nicholas McClain 33 Derbyshire Drive Jackson, TN 38305,
Linda McClearn 15804 Rob Roy Drive Oak Forest, IL 60452,
Rod McClearn 15804 Rob Roy Drive Oak Forest, IL 60452,
Paul McConnellogue 890 Faith CT Longmont, CO 80501,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
45

Stephen J. McCormick 113 Bagpipe Road San Angelo, TX 76904,
G. Frank McCorry 10616 W. Geronimo CT Boise, ID 83709,
Michael W. McCoy 12840 SW 147 Lane Road Miami, FL 33186,
Homer McCready RD #2, Box 538 Martinsburg, PA 16662,
Jonathan A. McCreight 11934 300th Avenue Princeton, MN 55371,
Becky J. McDaniel 577 bootlegger Trail Great Falls, MT 59404,
William S. McDaniel 3829 Huntwick Drive Fort Worth, TX 76123,
Edward J. McElhinny 420 Lindsey Street Hollidaysburg, PA 16648,
John E. McEnhill 6271 Willow Hwy Grand Ledge, MI 48837,
Gregory D. McGann 10509 Ray Road Raleigh, NC 27613,
Barbara McInernery 5525 Grace Avenue St. Louis, MO 63116,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
46

Malcolm M. McKean

)

16790 W. Mead Hill Drive

)

Loxahatchee, FL 33470,

)

)

Winston R. McKinnis

)

5202 Raymond Avenue

)

St. Louis, MO 63113,

)

)

Christopher J. McNamara

)

1006 Flicker Ham

)

Grand Ledge, MI 48837,

)

)

Pamela L. McPhillips

)

2113 Creekside Drive

)

Longmont, CO 80504,

)

)

Ronald L. McWilliams

)

208 Windsor Drive

)

Warner Robins, GA 31088,

)

)

James V. Meehan

)

6880 W. Wedgewood Ave

)

Davie, FL 33331,

)

)

David Melechin

)

12624 Preston Way

)

Los Angeles, CA 90066,

)

)

Jose M. Melon, Jr

)

6 Chalets De San Fernando

)

Apt. 608

)

Carolina, PR OO987,

)

)

Robert E. Melvin, Jr.

)

15729 SW 149 Terrace

)

Miami, FL 33196,

)

)

Bill Mercker

)

260 S. Tomagene Dr.

)

Bourbonnais, IL 60914,

)

)

47

Randall Michael

)

511 Irongate Blvd

)

Mufreesboro, TN 37219,

)

)

Terri Michel

)

825 Willow CT

)

Saginaw, TX 76179,

)

)

Michael A. Micheletti

)

2551 Landler St

)

Green Bay, WI 54313,

)

)

Dale Micklevitz

)

2908 31st Street

)

Columbus, NE 68601,

)

)

Michael D. Milam

)

973 E Washington Ave

)

Gilbert, AZ 85234,

)

)

Thelma M. Milikin

)

350 E. Willow Grove Ave Apt#110 )

Philadelphia, PA 19118,

)

)

Robyn Miller

)

13524 SW 124th Avenue Road

)

Miami, FL 33186,

)

)

Matthew Edward Miller

)

13191 Chestnut Road

)

Princeton, MN 55371,

)

)

Donna J. Minnie

)

5850 S. Riviera Court

)

Centennial, CO 80015,

)

)

Stephen A. Mitchell

)

675 S. McKinley Ave

)

Kankakee, IL 60901,

)

)

Gregory Mitchell

)

8 Rachel Drive Apt#13

)

Jackson, TN 38305,

)

48

Marvin Miyai

)

747 Amana St., Apt 1501

)

Honolulu, HI 96814,

)

)

Clifford M. Miyamoto

)

P.O. Box 30372

)

Honolulu, HI 96820,

)

)

Curtis J. Moe

)

13439 289th Avenue

)

Zimmmerman, MN 55398,

)

)

Robert W. Moffat

)

162 Burbank Drive

)

Snynder, NY 14226,

)

)

Leona N.T. Moir

)

1211 Alewa Drive

)

Honolulu, HI 96817,

)

)

Arthur A. Mollins

)

1914 Cherrywood Drive

)

Jonesboro, AR 72404,

)

)

Daniel Montanez

)

19045 Zane Street Northwest

)

Elk River, MN 55330,

)

)

Paul J. Moore

)

83 New School Lane

)

Levittown, PA 19054,

)

)

Dianne Dee Moore-Holman

)

7448 Blackthorn Drive

)

Fort Worth, TX 76137,

)

)

Rafael Morales

)

Hacienda San Jose

)

104 Via Medeival

)

Caguas, PR 00727-3012,

)

)

49

Vincent Morelli

)

9701 SW 213 Terrace

)

Miami, FL 33189,

)

)

Ricky J. Morris

)

P.O. Box 176

)

South Prairie, WA 98385,

)

)

David Scott Morrison

)

11 Fifteenth Street

)

Bangor, ME O4401,

)

)

Scott T. Morrissy

)

4154 Los Coyotes Diagonal

)

Lakewood, CA 90713-3316,

)

)

Elinormarie L. Morrissy

)

4154 Los Coyotes Diagonal

)

Lakewood, CA 90713,

)

)

Rebecca Mote

)

3865 Flaherty Road

)

Vine Grove, KY 40175,

)

)

Mark Motto

)

P.O. Box 9415

)

Albuquerque, NM 87119,

)

)

Randy Moulton

)

1445 Brett Place #101

)

San Pedro, CA 90732,

)

)

A. Vanita Mountain

)

13951 SW 66th Street

)

Apt. 808A

)

Miami, FL 33183,

)

)

Gary L. Moyer

)

3435 Kearny Villa Lane

)

San Diego, CA 92123,

)

)

50

Salvador Mugica 420 Durrand Oak Drive Keller, TX 76248,
Roger Munro P.O. Box 1470 Sheperdstown, WV 25443,
David W. Murdock P.O. Box 2656 Elkins, WV 26241,
Donald T. Murray 2622 Oakhills Trail San Angelo, TX 76904,
Robert A. Mutrux, II 7524 SW 146 Court Miami, FL 33183,
Lawrence G. Myers, Jr 125 Peach Orchard Road Waterbury, CT O6706,
Victor B. Naso 2073 Chase Avenue Webster City, IA 50595,
James J. Nau, III 601 Greenwood Avenue Williamsport, PA 17701,
Rebecca Nedderman 105 Wynstay Avenue Valley Park, MO 63088,
Richard A. Nelson 117 Airport Road Newton, TX 75966,
John D. Nelson 2935 NE Waggoner Drive McMinnville, OR 97128,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
51

)

James S. Nelson

)

27475 111th Street

)

Zimmerman, MN 55398,

)

)

John Newton

)

2045 Laguna Vista Drive

)

Novato, CA 94945,

)

)

Norman Nichelson

)

2707 Delmar Drive

)

Great Falls, MT 59404,

)

)

Amy L. Nichols

)

434 Paula Vale Ct

)

Ballwin, MO 63021,

)

)

Nancee Niemiec

)

215 Trail CT

)

Sterling, VA 20164,

)

)

Jacqueline Nix-Phillips

)

67 Hidden Oaks Drive

)

Oxford, AL 36203,

)

)

Earle Noel

)

969 Treasure Lake

)

DuBois, PA 15801,

)

)

Donald C. Northover

)

52 Clover Drive

)

Hollidaysburg, PA 16648,

)

)

Miguel A Nunez, Jr

)

934 N.W. 155 Terrace

)

Pembroke Pines, FL 33028,

)

)

Sue O'Conner

)

119 Carroll Drive

)

Stephens City, VA 22655,

)

)

52

Wade Oien 38720 62nd Ave Ct E Eatonville, WA 98328,
Peter G. Olsen N4267 Oak Lane Kaukauna, WI 54130,
Henry Ontiveros 152 Woodruff Street San Angelo, TX 76903,
Robert J. Osswald 780 E. Cedar Avenue Denver, CO 80209,
Karen A. Ostrand 35931 18th Ave SW Federal Way, WA 98023,
Eugene R. Otterbein, Sr. 351 N. Main Street Hughesville, PA 17737,
Charles E. Pace, Jr. 4699 West SR 340 Brazil, IN 47834,
John A. Pacitti 129 Iredell Lane Mullica Hill, NJ O8062,
Michael R. Palm 3277 Camden Rue Cuyahoga Falls, OH 44223,
Michael D. Papero 2954 NE Evans Apt#62 McMinnville, OR 97128,
William Parhamenko 4116 Marchmont Blvd Land O Lakes, FL 34638,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
53

Timothy N. Parish 94 Whippoorwill Drive Warner Robins, GA 31088,
James A. Parnell 404 Crescent Ct Raleigh, NC 27609,
Paul E. Parrish 4830 N. PR 195 W Brazil, IN 47834,
Steven K. Patterson 1535 Idaho SE Huron, SD 57350,
Terry L. Patterson 2870 N. Morello Avenue Meridian, ID 83642,
William G. Patterson 4820 Blue Mountain Circle Sparks, NV 89436,
Robert Dennis Pavicic 11361 Arlington Steet Adelanto, CA 92301-6054,
Gregory Pavlicka RR 1 Box 57A Elkins, WV 26241,
Penny V. Pavlicka RR 1 Box 57A Elkins, WV 26241,
Gerald G. Payne 332 6th Street Emerado, ND 58228,
Dean Pearsoll 4921 32nd Street Columbus, NE 68601,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
54

)

Breen L. Peck

)

958 Eastern Parkway

)

Louisville, KY 40217,

)

)

Robert Pedraza

)

2316 44th Ave, SW #206

)

Seattle, WA 98116,

)

)

Robert B. Pember

)

2522 Inglewood Road

)

Boise, ID 83705,

)

)

Lindsey Pember

)

1255 Watson Road

)

Atoka, TN 38004,

)

)

Efrain Perez

)

101 Allens Ridge Drive East

)

Palm Harbor, FL 34683,

)

)

Phillip D. Perreira, Jr.

)

98-1838 Nahele St

)

Aiea, HI 96701,

)

)

Sharon A. Perry

)

1421 Gary Lane

)

Escondido, CA 92026,

)

)

Dennis W. Peters

)

5774 S. Rome Street

)

Aurora, CO 80015,

)

)

David Zen Petersen

)

7950 Riverside Drive

)

Casper, WY 82604,

)

)

Michael D. Piccola, Jr.

)

2923 Cambridge Road

)

Wantagh, NY 11793,

)

)

55

Edward Pierce 280 Fieldstone Drive Bunker Hill, WV 25413,
Rocco Pignatiello 2315 Meadowood Blvd Twinsburg, OH 44087,
Edward L. Pila 95387 Awiki St Mililani, HI 96789,
Ronald A. Pinter 2832 Friendly Circle Green Bay, WI 54313,
Jana G. Pitre Rt 3 Box 275 McAlester, OK 74502,
Gerald H. Plyler 103 Highland Terrace Stratford, CT O6614,
Carl Pollard 10614 Cobblestone Drive Spotssylvania, VA 22553,
Richard Pollok 102 Murray Guard Drive F-46 Jackson, TN 38305,
Pablo Portuondo P.O. Box 30077 San Juan, PR 00929-1077,
Murita F. Potter 1215 Countryview Drive Duncansville, PA 16635,
Sheryl Lynn Potter 2919 10th Avenue North Fort Dodge, IA 50501,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
56

Eugene T. Potts 3333 Moores River Drive Lansing, MI 48911,
Elmer L. Powell, Jr. 8225 SW 184 Ter. Miami, FL 33157,
Dennis M. Powers 209 Wimbleton Circle Warren Robins, GA 31093,
Catherine L. Pownall 237 Teaberry Road Muncy, PA 17756,
Randall W. Rahon 101 Morgan Drive Osterburg, PA 16667,
Frederick W. Rauback 8 Last Chance Court Saint Peters, MO 63376,
Roger C. Ray 380 Kingwood Street McMinnville, OR 97128,
James R. Reed, Jr. 201 Shelby Drive Crosslanes, WV 25313,
Martha Christine Reese 20 County Road 750 Jonesboro, AR 72401,
Glenn N. Reffner II 17274 Pickwick Drive Purcellville, VA 20132,
Larry W. Reid 1017 Spindle Palm Way Apollo Beach, FL 33572,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
57

)

Richard A. Reimann

)

86-376 Puhawai Road

)

Waianae, HI 96792,

)

)

Thomas M. Renkey

)

630 Lee Place

)

Frederick, MD 21702,

)

)

Paula Williams Reppin

)

P.O. Box 7744 (29 Howle Road)

)

Oxford, AL 36203,

)

)

James Arthur Reppin

)

P.O. Box 7744 (29 Howle Road)

)

Oxford, AL 36203,

)

)

Alfonso Rey

)

2040 Normandy Drive

)

Hurst, TX 76054,

)

)

Pauline Reynolds

)

450 Winchester Road

)

Fairlawn, OH 44333,

)

)

Patrick Reynolds

)

616 Gala Road

)

Inwood, WV 25428,

)

)

John S. Rezler

)

13913 Seville Avenue

)

Fontana, CA 92335-0220,

)

)

Lydia Rijos

)

1029 Whetstone Court

)

Raleigh, NC 27615,

)

)

Angela Riley

)

3663 W. Park Creek Drive

)

Meridian, ID 83642,

)

)

58

David J. Ritter 2709 Hamilton Court Ft. Pierre, SD 57532,
Hector M. Rivero 6321 SW 156 CT Miami, FL 33193,
Dennis S. Robbins P.O. Box 54 Sweet, ID 83670,
Guylan E. Robert 5220 Bache Road McAlester, OK 74501,
Charles H. Robinson 904 North Park Circle Greenwood, MS 38930,
Flora Ann Robinson 3025 N Hwy 89 #37 Prescott, AZ 86301,
Alvin M. Robinson, Jr. 135 Dorset Ct. Elyria, OH 44035,
Dyan R. Rochelle P.O. Box 12972 Wichita, KS 67277,
Cindy E. Roden 2512 Westpart Way Circle Euless, TX 76040,
Dennis J. Roeck 1306 Upper Bellbrook Road Xenia, OH 45385,
Wille E. Rogers 1429 Blankenship Drive DeRidder, LA 70634,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
59

Franklin John Rohrer 5985 Timber Rail Lane Mason, OH 45040,
Sue E. Rohweder 95 Magnolia Rd Casper, WY 82604,
Christopher R. Rolan 3420 East 18th Casper, WY 82609,
Marvin K. Roney 6798 Wesley Court Plainfield, IN 46168,
Diana Roney 6798 Wesley Court Plainfield, IN 46168,
Robert W. Roose, Jr. 1489 Laconia Drive West Clearwater, FL 33764,
Michael Barnes Rosenbaum 845 South Illinois Avenue Casper, WY 82609,
Larry J. Rubitsky 9218 Parducci Way Sacramento, CA 95829,
Mark Rufener 1944 James Avenue Saint Paul, MN 55105,
Paul A. Rufo 30 Woodland Road Madison, CT O6443,
James A. Ruggiero 166 Brule Road De Perre, WI 54115,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
60

Gail A. Rusch 8261 SW 187 Street Miami, FL 33157,
Steven Glenn Rusk 3950 W. 226th Street, #54 Torrance, CA 90505,
Donald Gene Russell P.O. Box 1354 Casper, WY 82636,
Teri Russman 5584 Tappan Drive Reno, NV 89523,
David G. Ryan 1304 Lynhurst Lane Denton, TX 76205,
Richard J. Rydberg 515 Douglas Street Anoka, MN 55303,
Robert D. Sabaj 933 Redbarn Lane Wichita, KS 67212,
Michael P. Salimbene 32 Gridley Street West Islip, NY 11795-1007,
Vickie L. Sandy 211 Hickory Driv Elikins, WV 26241,
Shelby Savage P.O. Box 164 Bellwood, NE 68624-0164,
David Scanlon 850 Washburn Ave, Apt 148 Louisville, KY 40222,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
61

James R. Scanlon 6011 N. Crewe Ave Boise, ID 83714,
Randolph T. Schilling 14 Sage Circle Essex Junction, VT O5452,
David J. Schissler 840 Havenwood Lane S Fort Worth, TX 76112-1019,
Juliann M. Schmidt 1301 S. Clay Street Green Bay, WI 54301,
John A. Schweigert 7262 19th Street Princeton, MN 55371,
Jonathan Scott 303 Maddox Jackson, TN 38305,
Mark Gordon Senter 1900 Beechwood Drive Troy, OH 45373,
Gene J. Seto 1012 Oregon Drive Merced, CA 95340-2519,
Johnnie Sexton 3730 S. Esttes Drive Prescott, AZ 86303,
Sidney Shelton 622 Parkside Place NE Washington, DC 20019,
Wayne L. Shepard 433 Sawyer Road Hampden, ME O4444,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
62

Michael E. Shew 7046 County Y Oconto, WI 54153,
Robert C. Shields 424 W. Cherry Ln #139 Meridian, ID 83642,
Charles Shoaf 5392 Waring Road San Diego, CA 92120,
Frances T. Siedler 52 Parkview Circle Grand Forks, ND 58201,
Karl Simonyak 850 Madison Blvd Huron, SD 57350,
Courtney C. Simpson 1350 Olive Street NE Salem, OR 97303-3334,
Steven A. Sims 417 Nebraska Ave SW Huron, SD 57350,
Mark A.K. Singh 7134 SW 164 Ct Miami, FL 33193,
Edwin A. Sizemore P.O. Box 442 McAlester, OK 74502,
Joseph Skinner 1195 Dacus Road Medon, TN 38356,
Michael Skur 4157 Shores Court Fort Worth, TX 76137,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
63

Ronald A. Smelstor, Jr. 22 Sam Webb Road Fairfax, VT O5454,
Brian D. Smith 95-1014 Hoakua Street Mililani, HI 96789,
Jeffery T. Smith 700 Olivia Avene Greenwood, MS 38930,
Paula M. Smith 700 Olivia Avenue Greenwood, MS 38930,
Frank H. Smith 3630 North Cottonwood Drive Cedar City, UT 84720,
Crystal Smith 6511 Olde Moat Way Davie, FL 33331,
Jaymie Smith P.O. Box 62413 San Angelo, TX 76906,
Danny L. Smith 1346 Bridgewater Road Cordova, TN 38018,
David D. Smith Rt 5 Box 268 McAlester, OK 74501,
Jonathan H. Smith 2276 Hillcrest Ave Pennsauken, NJ O8110,
Edward L. Snyder 9985 River Road New Columbia, PA 17856,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
64

)

David K. Soll

)

5300 Pathview Drive

)

Huber heights, OH 45424,

)

)

David J. Sorenson

)

12110 278th Avenue

)

Zimmerman, MN 55398,

)

)

Keith R. Sorge

)

12 Sage Circle

)

Essex Junction, VT O5452,

)

)

Stephen M. Sosnowski

)

2447 N. 1480 E. Road

)

Ashkum, IL 60911,

)

)

Stephen A. Souto

)

12411 White Osprey Drive South )

Lillian, AL 36549,

)

)

Steven Spafford

)

275 Bunnyview Drive

)

Stratford, CT 6114,

)

)

Charles L. Spencer

)

1041 Big Valley Circle

)

Lipan, TX 76462,

)

)

Lawrence A. Spielman

)

3178 Granview Lane

)

DeWitt, MI 48820,

)

)

James R. St John

)

468 Dude Slaydon Lp

)

De Ridder, LA 70634-2518,

)

)

Denise H. Stahl

)

581 W. Warren Street

)

Boise, ID 83705,

)

)

65

Jerry Denton Standlee

)

6829 Green Leaf Drive

)

North Richland Hills, TX 76180, )

)

Joe S. Standridge

)

2 Fernridge Court

)

Green, SC 29651,

)

)

Jeff Steffen

)

611 East 4th Street

)

Bellwood, PA 16617,

)

)

Douglas J. Stene

)

16653 Jonray Court

)

Lakeville, MN 55044,

)

)

James H. Stephens

)

8216 Nantahala Drive

)

Raleigh, NC 27612,

)

)

Alain Sterk

)

1443 Northfield Meadows Unit 3 )

Bourbonnais, IL 60914,

)

)

Linda M. Sterling

)

1609 Tanglewood

)

Jonesboro, AR 72401,

)

)

David A. Stich

)

761 NW 73rd Ave

)

Plantation, FL 33317,

)

)

Sheila Stillman-Betts

)

359 Wind Rows Lake Drive

)

Goddard, KS 67052-9408,

)

)

Erich Stitt

)

P.O. Box 971

)

Charlestown, WV 25414,

)

)

John M. Stoelting

)

317 Trigg Drive

)

Marion, AR 72364,

)

66

)

John R. Stokes II

)

158 N Avseneau

)

Kankakee, IL 60901,

)

)

David Stout

)

3527 S. M43 HWY

)

Hastings, MI 49058,

)

)

William A. Straube

)

107 Wild Rose Cr.

)

Winchester, VA 22602,

)

)

Timothy J. Sturz

)

2094 So. Rock River Circle

)

DePere, WI 54115,

)

)

Carmen Suggs

)

2326 S. Leecrest Street

)

Wichita, KS 67209-3047,

)

)

Nancy J. Sutton

)

9116 W. Monticello Place

)

Littleton, CO 80128,

)

)

Duane S. Swanson

)

RD #1 Box 300BB

)

Roaring Spring, PA 16673,

)

)

Gary L. Sweet

)

705 Kirkwood Drive

)

Greencastle, IN 46135,

)

)

Marlin M. Swofford

)

701 E. Seminole

)

McAlester, OK 74501,

)

)

Arpad G. Szatori, Jr.

)

300 Gwynn Street

)

Green Bay, WI 54301,

)

)

67

Steven C. Szymznski 913 13th Street North Sauk Rapids, MN 56379,
David P. Talbot P.O. Box 1533 Columbus, NE 68602-1533,
Steven Tangen 1914 23rd Avenue South Grand Forks, ND 58201,
Larry D. Taylor 3110 Ashwood Drive Jonesboro, AR 72404,
Diane R. Taylor 10135 Mile Block Road North Collins, NY 14111,
Carl D. Taylor P.O. Box 774 Columbus, NE 68602-0774,
Gary Taylor 5301 Bershire Court Stephens City, VA 22655,
Eldon D. Taylor, Jr. 94-1063 Kamiki St Waipahu, HI 96797,
Rebecca Teborek 2225 NE 38th Avenue Portland, OR 97212,
Janice Teed 1475 Teal Drive Carson City, NV 89701,
Ronald L. Teems 910 Joey Street Brownsville, TN 38012,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
68

Norbert L. Teifert

)

111 Smith Road

)

Hermon, ME O4401,

)

)

Mark S. Terlecky

)

9321 Southern Orchard Road

)

Davie, FL 33328-6989,

)

)

Deborah K. Terry

)

1405 Crestview Drive

)

Antioch, CA , 94509

)

)

Quitman Lee Thomas

)

1125 Cr 120

)

Blue Springs, MS 38828,

)

)

Kenneth D. Thomas

)

403 Indianola Avenue

)

Elkins, WV 26241,

)

)

Hugh W. Thompson

)

2140 Kuhio Avenue, Apt 509

)

Honolulu, HI 96815,

)

)

Stephen J. Thompson

)

87 East Cavalier Drive

)

Cheektowaga, NY 14227,

)

)

Reginald Thornton

)

23632 Hiway 99 STE F PMB 397

)

Edmonds, WA 98026,

)

)

Alfred Tiller

)

10157 SW 53rd Ct

)

Cooper City, FL 33328,

)

)

Joel Tillman

)

389 Kaymar Drive

)

Amherst, NY 14228-3015,

)

)

Mark F. Tobin

)

1911 South 38th Street

)

Grand Forks, ND 58201,

)

69

Lou Ann Toeppen 1012 Manzano Court N.W. Albuquerque, NM 87102,
John N. Tollini P.O. Box 8377 Hermitage, TN 37076,
Charles R. Torres 122 Encino Drive Pueblo, CO 81005,
Carlos G. Torres 217 Long Street DeRidder, LA 70634,
Gregory Townsend 1417 W. Ash columbia, MO 65203,
Jeffrey G. Trabold RR #2, Box 139 M Martinsburg, PA 16662,
Joseph A. Travagliato 3791 Charles Court Seaford, NY 11783,
Jimmie Trekell 324 Weatheridge Drive Jackson, TN 38305,
Joel L. Truelove 146 Allie Drive Garner, NC 27529,
Darlene Tsokris 106 Smithtown Polk Blvd Centereach, NY 11720,
Scott L. Turner 11303 Leesburg Place Louisville, KY 40241,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
70

Linda D. Turnipseed

)

2816 28th Street

)

Columbus, NE 68601,

)

)

Leo Tyda

)

1153 N. Briar

)

Kankakee, IL 60901,

)

)

Lamount B. Tyler

)

3009 Arlmont Drive

)

St. Louis, MO 63121,

)

)

Jeffery Jack Tyler

)

4012 North Driftwood Lane

)

Cedar City, UT 84720,

)

)

Jeffrey M. Ulmer

)

712 Lochgarton Lane

)

Raleigh, NC 27614,

)

)

Larry D. Urban

)

312 South Rivershire Drive

)

Conroe, TX 77304,

)

)

Adolfo Urrutia

)

2812 SW 142 Court

)

Miami, FL 33175,

)

)

Paul James Van Hise

)

10765 East Platte River Road

)

Evansville, WY 82636,

)

)

Derald E. Vandawalker

)

708 E. Miami

)

Mclester, OK 74501,

)

)

Jose A. Vasquez

)

6824 Glenwood Drive

)

North Richland Hills, TX 76180, )

)

Robert M. Venable

)

130 W. Cedar Tree Ln.

)

Hartsburg, MO 65039,

)

71

Ralph M. Villagomez, Jr. 3108 Walnut Creek Pkwy Granbury, TX 76049,
Leonard H. Viloria 95-1046 Hoalia St. Mililani, HI 96789,
David W. Vitko 116 Clayton Drive Johnstown, PA 15904,
David A. Vogan 2969 Gulliford Drive Lowell, MI 49331,
John D. Volkmuth 1402 3rd Avenue Ct. N. Princeton, MN 55371,
Robert A. Wade 1230 Lawnridge SE Huron, SD 57350,
Rick E. Wagner 421 Hipples Cave Road Woodbury, PA 16695,
Robert E. Waldrep 9350 SW 104 Street Miami, FL 33176,
Lloyd I.A. Walford 50 Davis Parkway South Burlington, VT 5403,
Gary J. Walker 1098 Westover Drive Warren, OH 44484,
Sheila A. Walker P.O. Box 713 North Carrollton, MS 38947,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
72

James F. Walsh, Jr. 8 Old Coram Road Shelton, CT O6484,
Henry A. Walter 1523 Yacht Ave Cape May, NJ O8204,
David Walz 4201 Periwinkle Fort Worth, TX 76137,
Wayne P. Wansing 12 Atchinson Road Olean, MO 65064,
Linda D. Warby 7410 Elm Ave St. Louis, MO 63143,
John B. Warner 8417 N. Main Street Eden, NY 14057,
Susan Waters 53 Cherry Ave W. Sayville, NY 11796,
Evelyn Watts 609 Sunrise Lane Caldwell, ID 83605,
James E. Weaver 1804 Pam Drive Jonesboro, AR 72404,
John W. Wesselhoft P.O. Box 17667 Clearwater, FL 33762,
Sarah P. Westberry 13312 NW 11th Drive Sunrise, FL 33323,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
73

Barbara A. Westermeier

)

1200 N. Vietch Street, # 507

)

Arlington, VA 22201,

)

)

Thomas M. Weston

)

2301 Eagle Avenue

)

Alameda, CA 94501,

)

)

Marsha B. Wheeler

)

5166 Oak Tree Drive

)

Macon, GA 31210,

)

)

Ollie D. White

)

4600 Leesburg Ct

)

Louisville, KY 40241,

)

)

John Paul White

)

12144 Odessa Drive

)

Moreno Valley, CA 92557,

)

)

George Wideman

)

420 Upper Browns Church Road

)

Jackson, TN 38305,

)

)

Robert T. Wiese

)

12846 Dove Creek Road

)

San Angelo, TX 76904,

)

)

Donald E. Wiggins

)

3737 Wadswoth Drive

)

Boise, ID 83704,

)

)

Janet Wiggins

)

17542 Tobermory Place

)

Leesburg, VA 20175,

)

)

Edward S. Wild

)

7 Orchard Street

)

Saint Albans, VT O5478,

)

)

Jim G. Wilkerson

)

4304 Langham Drive

)

Columbia, MO 65202,

)

74

Bobby R. Wilkins, Jr. 2330 Rainbow Drive Anniston, AL 36207,
Daniel M. Williams 1927 S. 31st Street Terre Haute, IN 47803,
David E. Williams 148 Deer Path Anniston, AL 36207,
John A. Williams 1211 Bell Road Apt 43 Antioch, TN 37013,
Otis Benjamin Williams 11228 Springway Court Riverside, CA 92505,
William Mark Willsey 28553 Newcastle Road Highland, CA 92346,
Raymond W. Wilson 984 S. Poplar Ave Kankakee, IL 60901,
Roger W. Wilson 469 Village Road Stetson, ME O4488,
Randy A. Wilson 240 Monarch Drive Washoe Valley, NV 89704,
Russell Winterstein 3221 Camelot Drive Rocklin, CA 95765,
Paula Wisniewski 1217 26th Avenue North Fort Dodge, IA 50501,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
75

William Edward Wolf 112 Applecreek Estates Elkins, WV 26241,
Karl Wolthausen 19355 SW 65th Ave #C2 Tualatin, OR 97062,
David Brian Womack 6837 Lyndale Drive Wataugo, TX 76148,
Roger E. Woodruff 7130 N. Flintwood Road Parker, CO 80138,
Greg F. Woolley 1630 Earl Circle Grand Forks, ND 58201,
Robert F. Wurzer 3186d Claremont Place Palm Harbor, FL 34683,
Matthew O. Yeisley 608 Montgomery Street Winona, MS 38967,
Gray P. Yencich 14525 SE Tenino Street Portland, OR 97236,
William D. Yonkin 1139 Youngs Road Linden, PA 17744,
Charlotte York P.O. Box 3300 Prescott, AZ 86302,
Joseph Young 325 Winding Way Hammonton, NJ O8037,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
76

Tina Young

)

315 Windward Hills Avenue

)

Grand Forks, ND 58201,

)

)

Raquel L. Ysasi-Huerta

)

4432 South Grove Road

)

St. Johns, MI 48879,

)

)

Edwin Zachary

)

575 Hidden Valley Road

)

Prescott, AZ 86303,

)

)

James Zagorski

)

P.O. Box 29246

)

Honolulu, HI 96820,

)

)

Edward J. Zaleski

)

4125 Turnbridge

)

Holt, MN 48842,

)

)

Robert W. Zane

)

3 Cedar Court

)

Essex Junction, VT O5452,

)

)

Michael G. Zarifis

)

775 Shenandoah CT

)

Bourbonnais, IL 60914,

)

)

Karen A. Zarifis

)

775 Shenandoah CT

)

Bourbonnais, IL 60914,

)

)

Michael Zeman

)

12346 W. Ramblin Rose Drive

)

Boise, ID 83713,

)

)

Timothy K. Zimmermann

)

14163 Seagate Drive

)

San Leandro, CA 94577-6410,

)

)

Plaintiffs, Not

)

Class Representatives, )

)

77

v.

)

)

NORMAN Y. MINETA

)

SECRETARY

)

U.S. Department of

)

Transportation

)

400 7th Street, S.W.

)

Washington, DC 20590,

)

)

and

)

)

MARION C. BLAKEY

)

ADMINISTRATOR

)

Federal Aviation Administration )

800 Independence Avenue, S.W.

)

Washington, DC 20591,

)

)

Defendants.

)

)

FIRST AMENDED CLASS ACTION COMPLAINT

1. By and through undersigned counsel, Plaintiffs

Kathleen A. Breen, Milton J. Torres, III, Richard C. Anderson,

Ronald J. Consalvo, Mark Jaffe, Darrell G. Mounts, John

O'Connell, Michael J. Sheldon, and Jerry VanVacter, on their own

behalf and as representatives of an 834-person class of all the

above-named Flight Service Air Traffic Control Specialists

employed by the Federal Aviation Administration (“FAA” or

“Defendants”), an agency of the U.S. Department of

Transportation, who are over 40 years of age and adversely

affected by the FAA’s decision to eliminate federal employment

and related benefits in the next three (3) months at the 58

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Automated Flight Service Stations as announced by the FAA on February 1, 2005, hereby file this First Amended Class Action Complaint. The original nine Plaintiff Class Representatives are joined by 825 additional Plaintiffs in bringing this Complaint. (See also Exhibit 1 to initial Complaint). Each of these Plaintiffs not only is a member of the class, but also asserts individual claims of age discrimination on his or her own behalf. The purpose of this Complaint is to challenge unlawful age discrimination in employment by the FAA pursuant to the Age Discrimination in Employment Act of 1967, as amended. 29 U.S.C. § 621, 633a et seq. Plaintiffs seek relief for harms caused by the Defendants’ unlawful and intentional age discrimination in eliminating federal employment and related benefits for Flight Service Air Traffic Control Specialists (hereinafter “Flight Service Controllers”) including Plaintiffs, which workforce consists of approximately 92 percent older1 employees (i.e., over 40) employees, at the Automated Flight Service Stations in the continental United States, Puerto Rico, and Hawaii. The Flight Service Controllers adversely affected by the announcement, including Plaintiffs, will have their
1 Affected Flight Service Controllers number approximately 1,935, and approximately 1,770 of them are over the age 40.
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federal positions eliminated by the FAA in the next three (3) months and will be terminated from federal employment. Many will be forced to accept private employment with the designated government contractor, Lockheed Martin, which is scheduled to assume total control of the Flight Service component of Air Traffic Control in approximately three (3) months, and even the 120 employees who remain with the FAA are likely to incur moving expenses for which the government normally pays.
2. In this action, Plaintiffs seek injunctive relief for continuation of their Flight Service Controller (ATCS) positions that the FAA proposes to eliminate, plus back pay and benefits, front pay, record correction, and attorney fees.
Parties 3. Plaintiff Class Representative Kathleen A. Breen is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. Her address is 58 Ames Road, Lisbon, CT 06351. At the filing of this Complaint, Ms. Breen is 44 years of age. 4. Plaintiff Class Representative Milton J. Torres, III is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 16071 S.W. 73rd Street, Miami, FL 33193. At the filing of this Complaint, Mr.
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Torres is 47 years of age. 5. Plaintiff Class Representative Richard C. Anderson is
employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 1945 67th Avenue North, St. Petersburg, FL 33702. At the filing of this Complaint, Mr. Anderson is 45 years of age.
6. Plaintiff Class Representative Ronald J. Consalvo is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 5 Devonshire Drive, Glassboro, NJ 08028. At the filing of this Complaint, Mr. Consalvo is 46 years of age.
7. Plaintiff Class Representative Mark Jaffe is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 918 West Lovers Lane, Arlington, TX 76013. At the filing of this Complaint, Mr. Jaffe is 52 years of age.
8. Plaintiff Class Representative Darrell G. Mounts is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 10230 Melody Drive, Northglenn, CO 80260-6044. At the filing of this Complaint, Mr. Mounts is 47 years of age.
9. Plaintiff Class Representative John O'Connell is 81

employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 1776 Havenshire Lane, Brighton, MI 48114-8737. At the filing of this Complaint, Mr. O'Connell is 63 years of age.
10. Plaintiff Class Representative Michael J. Sheldon is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 151 Gulf Street, Milford, CT 06460. At the filing of this Complaint, Mr. Sheldon is 46 years of age.
11. Plaintiff Class Representative Jerry VanVacter is employed as an Air Traffic Control Specialist in the Flight Service component of the FAA. He resides at 2424 Poplar Avenue, Duncombe, IA 50532. At the filing of this Complaint, Mr. VanVacter is 42 years of age.
12. All 825 additional Plaintiffs named on pages 2-77 of this First Amended Complaint are current Flight Service Controllers employed by the Federal Aviation Administration and are over the age of 40, as of the date of filing this Complaint. Each of these 825 additional Plaintiffs not only is a member of the class, but also asserts individual claims of age discrimination on his or her own behalf.
13. The first Defendant in this action is the Honorable 82

Norman Y. Mineta, Secretary, U.S. Department of Transportation. Secretary Mineta is sued in his official capacity only. The Department of Transportation is headquartered at 400 7th Street, S.W., Washington, DC 20590.
14. The second Defendant is Marion C. Blakey, Administrator, Federal Aviation Administration. Administrator Blakey is sued in her official capacity only. The Federal Aviation Administration is headquartered at 800 Independence Avenue, S.W., Washington, DC 20591.
Jurisdiction and Venue 15. This Court has jurisdiction over this Complaint because it presents a question of federal law. 28 U.S.C. § 1331. Specifically, this Court has jurisdiction over this Complaint pursuant to 29 U.S.C. § 626(b). 16. This Court is the proper venue pursuant to 28 U.S.C. § 1391 and 29 U.S.C. § 633a(c) because all of the unlawful discriminatory decisions and transactions were determined and issued by the Federal Aviation Administration, an agency of the U.S. Department of Transportation, at its headquarters in the District of Columbia.
Exhaustion of Administrative Remedies 17. Plaintiffs Kathleen A. Breen, Milton J. Torres, III,
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Richard C. Anderson, Ronald J. Consalvo, Mark Jaffe, Darrell G. Mounts, John O'Connell, Michael J. Sheldon, and Jerry VanVacter, provided Notice to the Equal Employment Opportunity Commission of their intent to file this civil action pursuant to section 15(d) of the ADEA on February 8, 2005. 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). This initial Notice was supplemented on February 9, 2005.
18. The 825 additional Plaintiffs named in this First Amended Complaint (on pages 2-77) provided Notice to the Equal Employment Opportunity Commission of their intent to file this civil action pursuant to section 15(d) of the ADEA on either March 1, 2005 or April 21, 2005 (over 30 days ago, as required). 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a).
Definition of the Class 19. The class in this case includes approximately 8342 of the FAA’s 1,770 current Flight Service Controllers, who are over the age of 40 and adversely affected by the FAA’s February 1, 2005 announcement. The discriminatory decision to contract out the Flight Service component of Air Traffic Control, which has historically been classified as inherently governmental, will
2 Other Plaintiffs may be added in future Amended Complaints, including but not limited to Richard D. Mauck.
84

have the effect of terminating Plaintiffs’ positions with the FAA, eliminating or reducing their pay, dramatically limiting their retirement benefits, and prematurely ending their federal careers at the conclusion of the phase-in period in or about October 2005. Prior to the February 1, 2005 announcement, no private-sector industry existed that compared to the Flight Service functions performed by the FAA’s Automated Flight Service Stations. Plaintiffs have been made the targets of the FAA’s discriminatory decision because they are over 40 years of age. See Exhibit 3 to initial Complaint.
20. Plaintiff Class Representatives propose to represent a class of approximately 834 current FAA Flight Service Air Traffic Control Specialists, a class whose members are over the age of 40. This class includes the 825 additional Plaintiffs.
Class Allegations 21. This action is properly maintainable as a class action under Rule 23(a) of the Federal Rules of Civil Procedure. 22. The members of the proposed class, numbering approximately 834 FAA Flight Service Air Traffic Control Specialists, are sufficiently numerous to make joinder impracticable. See Fed. R. Civ. P. 23(a)(1). 23. Plaintiffs’ claims raise questions of law or fact
85

common to the class. The common question is whether Defendants discriminated against the over-40 class members (represented by the Plaintiff Class Representatives) by the FAA’s decision to eliminate these persons’ federal employment and related benefits in the next three (3) months at the 58 Automated Flight Service Stations as announced on February 1, 2005. See Fed. R. Civ. P. 23(a)(2).
24. The FAA's discriminatory decision affected all of the approximately 834 class members; and the class members are faced with almost identical questions of fact, differing only with respect to which of the limited options they availed themselves as a result of the FAA's decision. Moreover, the class members have common issues of fact because the contracting-out and personnel decisions were entirely determined and administered by the FAA. See Fed. R. Civ. P. 23(a)(2).
25. The class members are all being subjected to age discrimination and therefore have claims in common. See Fed. R. Civ. P. 23(a)(2).
26. The class members are alleging age discrimination because 92 percent of the affected Flight Service Controllers are over age 40 and protected by the Age Discrimination in Employment Act. See Fed. R. Civ. P. 23(a)(2).
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27. The claims of the Plaintiff Class Representatives are typical of the claims of the class. Like all class members, the Plaintiff Class Representatives are Flight Service Controllers who will lose their federal employment and related benefits unless they prevail in this action. See Fed. R. Civ. P. 23(a)(3).
28. The named Plaintiff Class Representatives and undersigned counsel will properly represent the interests of the class and its members. See Fed. R. Civ. P. 23(a)(4).
29. This class action should properly be maintained under Fed. R. Civ. P. 23(b)(2) because Defendant’s actions in contracting out all Flight Service Controllers are generally applicable to all members of the class, and injunctive relief is appropriate and sought in this case.
30. This class action is also properly maintainable pursuant to Fed. R. Civ. P. 23(b)(1) because there is a real danger of inconsistent and varying adjudications with respect to the approximately 834 class members, who are geographically dispersed throughout the country and who might otherwise bring inconsistent claims in different jurisdictions.
31. In addition, this class action is properly maintainable pursuant to 23(b)(3) because the questions of law
87

and fact common to members of the class predominate over questions affecting individual members, and a class action is superior to other available methods for the fair and efficient resolution of this controversy.
Facts 32. Flight Service Controllers perform crucial functions for our country’s aviation community, which are central to the core mission of the FAA and vital to our national security. These dedicated, experienced public servants provide critical services to all types of aircraft ranging from the commercial airline captain on a cross-country flight to the pilot flying his family on a vacation trip. For pilots awaiting departure and preparing to land, Flight Service Controllers monitor traffic and weather conditions. Occasionally, Flight Service Controllers will direct activities for airports where there is no control tower or where the tower has been taken off-line for a temporary period. Once airborne, pilots turn to Flight Service Controllers for briefings on hazardous weather conditions3 as well as guidance on temporary flight
3 Based on data from the National Transportation Safety Board (“NTSB”), the FAA's National Aviation Safety Data Analysis Center (“NASDAC”) reports that weather contributed to or caused more than 1 out of every 5 aircraft accidents between 1991 and
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restrictions, which are constantly being updated and altered. Flight Service Controllers maintain communication with the pilots in the air to provide up-to-the-minute route adjustments to avoid these severe weather conditions as well as prohibited, restricted, or special use airspace. For example, when the President travels by air, Flight Service Controllers perform a vital function in making other aircraft aware of the flight restrictions around the President’s plane.
33. The tragic events of September 11, 2001, demonstrate the vital role that Flight Service Controllers play for our nation. All safety and security directives relayed on 9/11 to the aviation community before take-off were made through Flight Service Controllers at the Automated Flight Service Stations.4 In the days following that fateful day, Flight Service Controllers as well as other Air Traffic Controllers were an essential human link between the pilots in the air and the FAA.
2001. NASDAC, Office of System Safety, FAA, “NTSB Weather Related Accident Study, 1991-2001,” available at: https://www.nasdac.faa.gov/aviation_studies/weather_study.
4 In the wake of 9/11, the government decided that it had to federalize those employees who check passengers and baggage at airports. There is, of course, no logical reason to treat the highly experienced FAA Controllers who manage communications and monitor safety and security for the aviation community any differently.
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34. Without the vital experience and dedication of the present Flight Service Controllers, the number of weatherrelated accidents is sure to increase. Pilots in the air will suffer, and such suffering may result in loss of life or property, which will affect all Americans.
35. The FAA has long treated its older employees in Air Traffic Control abysmally. See, e.g., Torres v. Mineta, Civil Action No. 04-0015 (GK) (D.D.C., filed Jan. 8, 2004).
36. The FAA has long wanted to eliminate its predominantly older Flight Service Controllers. According to widely available FAA materials, the Automated Flight Service Stations were targeted for contracting out to the private sector because a large percentage of the Flight Service Controller workforce was or would soon become “retirement eligible.” FAA, “Background on AFSS,” available at: http://www.faa.gov/aca/afss/afss.html (last accessed, Feb. 1, 2005), copy attached as Exhibit 2 to initial Complaint. The Defendants have thus openly admitted an age discriminatory motive in eliminating this highly experienced, highly dedicated group of public servants.
37. On February 1, 2005, the FAA announced that Lockheed Martin was awarded the contract for the nation’s Flight Service work for the next five years at a cost of $1.9 billion, with an
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option of five additional years. FAA, “AFSS A-76 Performance Decision: Text of Remarks by Dennis DeGaetano, Vice President of Acquisition and Business Services, FAA,” available at http://www.faa.gov/aca/perf_decision/Dennis%20DeGaetano.pdf. The FAA’s February 1, 2005 decision will shrink the 58 existing Automated Flight Service Stations to 20 new, consolidated facilities. See Exhibits 3 and 4 attached. This will naturally result in a reduction of the number of employees who staff the new consolidated Stations as Lockheed Martin contractors, as well as necessary relocations of those incumbent employees selected to staff the new facilities but currently working out of one of the soon-to-be-closed stations. The February 1st decision is certain to cause high attrition among the current Flight Service Controllers. These soon-to-be former federal employees have been asked to give up a meaningful federal career and significant retirement benefits. Many will likely have to move to new locations, and some of these Controllers will not receive the moving assistance benefits currently available to federal employees.
38. The FAA will be separating from federal service 1,935 Flight Service Controllers, approximately 92 percent of whom are over the age of 40, who staff the Automated Flight Service
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Stations. The years of experience accrued by the current Flight Service Controller workforce, as the FAA well knows, cannot be replaced. On average, it takes a full two years to properly train a new Flight Service Controller from the date of hire to when that employee attains his or her full performance level.
39. The actions at issue here will allow the FAA to replace its older, dedicated, experienced Flight Service Controllers with new, younger workers as contractors. Once Flight Service Controllers are over the age of 31, the FAA will not normally allow them to transfer to other kinds of Air Traffic Controller positions. See FAA, Human Resource Policy Manual, “Maximum Entry and Retention Age for Air Traffic Control Specialists,” § EMP-1.20 (July 29, 2003). As a result, many current Flight Service Controllers are frozen out of potential jobs within the FAA, jobs that the FAA badly needs to fill. In 2003, the FAA began actively recruiting new Air Traffic Controllers from outside the FAA. Over the next 10 years, the FAA plans to supplement its present workforce with some 12,500 new, younger Controllers.
40. Upon information and belief, no other FAA workforce unit has more older employees (older than 40 years of age) per capita than the Defendants’ Flight Service Controllers.
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41. The FAA's decision to contract out its Automated Flight Service Station functions will have concrete, adverse effects on the careers of the Flight Service Controllers who stay with the FAA or Lockheed Martin. Although close to 1,000 Flight Service Controllers are eligible for other Air Traffic Controller positions elsewhere in the FAA, the FAA is offering positions to only 120. Controllers who are forced to accept private-sector jobs with Lockheed Martin will lose their hardearned retirement benefits and most likely future earnings. The elimination of their federal positions at this juncture will have a severe, adverse effect on the retirement eligibility, “high three’s”5, and retirement benefits of all Flight Service Controllers.
42. Currently, Flight Service Controllers contribute 1.3 percent of their salary to their retirement as opposed to other federal government employees who contribute only .08 percent. This additional money (.05 percent of a Flight Service Controller's annual income) allows these Controllers who earn
5 “High three” refers to a federal employee’s highest three years of earnings, which is a base calculation for determining the employee’s annuity at retirement. Generally, the longer a federal employee works, the higher his/her pay will be at retirement. Employees who retire with higher pay receive a higher annuity.
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"good time" as a Controller to retire with either 20 years of "good time" at age 50 years or 25 years of "good time" at any age. If a Flight Service Controller meets these criteria, he/she will then receive 1.7 percent of his/her “high three” for the first 20 years of service and 1.0 percent for each year thereafter as part of the retirement package. If a Flight Service Controller meets these criteria, he/she will then receive 1.7 percent of his/her “high three” for each year of service as part of the retirement package. If a Flight Service Controller does not have the requisite years of service with as an Air Traffic Controller but has enough years in other government service to qualify for retirement, that employee will lose the 1.7 percent bonus and revert back to a package containing only 1.0 percent of his/her “high three” for each year of federal service. The terminated Flight Service Controllers will lose all of the additional money they have put into their retirement fund over the years, which the FAA and the U.S. Office of Personnel Management will not refund.
43. Further, the only option for a Flight Service Controller who is not eligible for regular retirement is a deferred or discontinued retirement. With substantial penalties for years below the minimum retirement age, these employees will
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be left with greatly reduced retirement income. Employees who accept deferred retirement will receive a nominal annuity of $400.00 a month and no health or life insurance benefits.
44. The FAA has announced that the award to Lockheed Martin will save the government $2.2 billion. Logically, these savings will come from the elimination of the current older-age Flight Service Controller workforce, together with the reduction in pay and benefits for these employees now and in the future. Lockheed Martin has guaranteed three years of employment to only that portion of the current workforce that is retained at and moves to the 20 new, consolidated facilities.
45. President Bush's Presidential Management Agenda allows federal agencies to identify possible areas of competitive sourcing for “commercial” Agency functions, based on Office of Management and Budget (OMB) Circular A-76 (revised May 2003) as one of five government-wide initiatives. The Flight Service component of Air Traffic Control was the only FAA workforce unit singled out for an A-76 contracting-out study in purported response to the President's Management Agenda. The fact that Flight Service Controllers in Alaska, numbering approximately 155, are to remain federal employees for the FAA shows that Flight Service Control Work is a proper governmental function.
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Flight Service Control Work has historically been considered a

public function, not a private enterprise.

The FAA's

contracting-out decision contradicts the inherently governmental

function of Air Traffic Control; the decision is based on an

incorrect classification of the Flight Service Controller

function to the detriment of the flying public and U.S.

taxpayers for the benefit of a private corporation. Most

importantly, the decision is motivated by unlawful age

discrimination.

46. The pretextual nature of the FAA’s reasons for its

award of the contract to Lockheed through the A-76 process is

evident in a number of irregularities in the in the FAA’s

conduct of the Circular A-76 competitive process. For example,

the FAA’s rating of Lockheed as “Excellent” under its evaluation

of the technical factors in Lockheed’s proposal completely

ignored Lockheed’s proposed use of voice switch technology that

is neither used for air traffic control in the United States nor

approved for use in the National Airspace System. Moreover,

upon information and belief, Lockheed has partnered with the

same company whose software in the SUA/ISE(2) project failed

FAA tests in 2004. The FAA’s untested and unapproved software

is being imported from Australia in possible violation of the

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Buy American Act, 41 U.S.C. § 10a. 47. Similarly, while the FAA downgraded continued Flight
Service from the government allegedly because of inability to fill key positions, the FAA’s analysis took no account of the risk to Lockheed Martin that it would not be able to hire experienced Controllers. The FAA discounted the likelihood that Controllers would continue to be unionized at Lockheed, a likelihood that is coupled with greater union bargaining power in the private sector.
48. In sum, FAA management officials are intentionally destroying their Flight Service Controller workforce, targeting these older workers simply because they are older. Moreover, the FAA rejected job reduction alternatives that would have had much less impact on older Controllers, including but not limited to alternatives proposed by the Union (National Association of Air Traffic Specialists), the Inspector General, and the Agency’s own “Most Efficient Organization.” Plaintiffs and their fellow Flight Service Controllers are being asked to pay a heavy price simply because of the Defendants’ unlawful age discrimination against older employees. The FAA contracting-out decision at issue in this Complaint reflects disparate treatment and has a disparate impact on its older Flight Service
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Controllers. Causes of Action
(Disparate Treatment - Violation of the Age Discrimination in Employment Act)
49. Based on the facts described in the foregoing Paragraphs, Defendants and their agents at the FAA unlawfully discriminated against the Plaintiffs on the basis of their age (over 40) in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, 633a et seq. Approximately 92 percent of Flight Service Controllers are federal employees over the age of 40. The FAA has engaged in disparate treatment of its older “retirement eligible” workforce of Flight Service Controllers by deliberately and cynically targeting their jobs for elimination in order to replace them over time with younger contractors. See supra, at ¶ 39. Further, on information and belief, the Flight Service Control workforce is older than other FAA workforces not contracted out. (Disparate Impact - Violation of the Age Discrimination in Employment Act)
50. Alternatively, based on the facts described in the foregoing Paragraphs, Defendants and their agents are unlawfully discriminating against the Plaintiffs on the basis of their age (over 40) for no legitimate reason in violation of the Age
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Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, 633a et seq. The decision at issue here, the FAA's decision to contract out its Automated Flight Service Stations, has a disparate impact upon a disproportionately older workforce of the FAA, i.e., the approximately 92 percent of Flight Service Controllers over the age of 40. There is no reasonable factor other than the age of the workforce that is motivating this contracting-out decision. The FAA’s purported reasons for its actions are unjustified and baseless, not to mention arbitrary and capricious.
Prayer for Relief 51. WHEREFORE, Plaintiffs respectfully request this Court to:
a. Issue preliminary and permanent injunctions to prevent the loss to the Plaintiffs of their federal employment and related benefits;
b. Award appropriate back pay and benefits, front pay, and record correction to the Plaintiffs;
c. Award reasonable attorney’s fees and expenses of bringing this action and the earlier administrative action; and
d. Order such other and further relief as the Court 99

deems just and proper. Jury Trial Demand
52. The Plaintiffs hereby demand a jury trial on all counts triable by a jury.
Respectfully submitted,

June 24, 2005

/s/ JOSEPH D. GEBHARDT
(DC Bar No. 113894) CHARLES W. DAY, JR.
(DC Bar No. 459820) REBECCA M. HAMBURG
(Admitted in CA) MARK A. DANN
(DC Bar No. 484523) GEBHARDT & ASSOCIATES, LLP 1101 17th Street, N.W. Suite 807 Washington, DC 20036-4716 (202) 496-0400
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing First Amended Class Action Complaint was served this 24th day of June, 2005, via certified first class mail (return receipt requested), upon Defendants and their counsel as follows:
Hon. Norman Y. Mineta U.S. Department of Transportation 400 7th Street, S.W. Washington, DC 20590 Hon. Marion C. Blakey Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Hon. Alberto Gonzales Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Hon. Kenneth L. Wainstein United States Attorney 555 Fourth Street, N.W. Washington, DC 20350
/s/ JOSEPH D. GEBHARDT
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. BREEN, et al.,
Plaintiffs, v.
MARY E. PETERS, et al.,
Defendants.

)

)

)

)

Case No. 1:05CV00654-RWR

)

)

)

)

)

)

)

ANSWER TO FIRST AMENDED CLASS ACTION COMPLAINT

Defendants Mary E. Peters, Secretary, United States Department of Transportation, and

Marion C. Blakey, Administrator, Federal Aviation Administration (FAA), by and through

undersigned counsel, submit the following Answer to Plaintiffs’ First Amended Class Action

Complaint (“Complaint”):

The following defenses are applicable, where appropriate, to any and all of Plaintiffs’

claims for relief.

FIRST AFFIRMATIVE DEFENSE

The Complaint fails to state a claim upon which relief may be granted.

SECOND AFFIRMATIVE DEFENSE

Plaintiffs cannot establish a prima facie case of discrimination.

THIRD AFFIRMATIVE DEFENSE Defendants had legitimate, non-discriminatory reasons for taking the allegedly discriminatory actions complained of.
FOURTH AFFIRMATIVE DEFENSE The Court lacks jurisdiction over the subject matter of plaintiffs’ disparate impact claim.
FIFTH AFFIRMATIVE DEFENSE The alleged discriminatory actions were based on reasonable factors other than age. While specifically denying that plaintiffs’ age motivated the employment practice alleged to be unlawful, defendants aver as an alternative defense that if plaintiffs’ age were a motivating factor, defendants would have taken the same action in the absence of such factor.
SIXTH AFFIRMATIVE DEFENSE Certain of Plaintiffs’ claims are barred by the applicable statute of limitations. Answering the specific numbered paragraphs of the Complaint, defendants state: 1. Defendants admit that the FAA is an agency of the Department of Transportation. As to the fifth sentence of paragraph one of the Complaint, defendants admit the averments of this sentence only to the extent that the relief requested therein is sought by the plaintiffs but deny that plaintiffs are entitled to such relief or to any other relief. The remainder of paragraph one of the Complaint constitutes Plaintiffs’ characterization of their action and conclusions of law as to which no response is required but to the extent a response is required, they are denied. 2. Defendants admit the averments of paragraph two of Plaintiff’s Complaint only to the extent that the relief requested therein is sought by plaintiffs but defendants deny that plaintiffs are entitled to such relief or to any other relief. The remainder of paragraph two of the
2

Complaint constitutes Plaintiffs’ characterization of their action and conclusions of law as to which no response is required but to the extent a response is required, they are denied.
Parties1 3. Defendants admit the averments of paragraph three of the Complaint except deny that the named individual plaintiff is a class representative. 4. Defendants admit the averments of paragraph four of the Complaint except deny that the named individual plaintiff is a class representative. 5. Defendants admit the averments of paragraph five of the Complaint except deny that the named individual plaintiff is a class representative and aver that the named individual plaintiff was 46 years old as of the date of filing of the Complaint. 6. Defendants admit the averments of paragraph six of the Complaint except deny that the named individual plaintiff is a class representative. 7. Defendants admit the averments of paragraph seven of the Complaint except deny that the named individual plaintiff is a class representative. 8. Defendants admit the averments of paragraph eight of the Complaint except deny that the named individual plaintiff is a class representative. 9. Defendants admit the averments of paragraph nine of the Complaint except deny that the named individual plaintiff is a class representative and aver that the named individual plaintiff was 64 years old as of the date of filing of the Complaint.
1 All headings and subheadings herein come from the Complaint. Defendants use them herein for clarity but do not admit the substance of any of Plaintiffs’ headings or subheadings.
3

10. Defendants admit the averments of paragraph ten of the Complaint except deny that the named individual plaintiff is a class representative and aver that the named individual plaintiff was 47 years old as of the date of filing of the Complaint.
11. Defendants admit the averments of paragraph eleven of the Complaint except deny that the named individual plaintiff is a class representative.
12. Defendants admit the averments of the first sentence of paragraph twelve of the Complaint except deny that all 825 individual plaintiffs are over the age of forty. The remainder of the paragraph constitutes conclusions of law as to which no response is required but to the extent a response is required, they are denied.
13. Defendants deny the averments in paragraph thirteen of the Complaint to the extent that Norman Y. Mineta resigned as Secretary of Transportation in July 2006. The Honorable Mary E. Peters is the current Secretary of Transportation; otherwise Defendants admit the averments made in paragraph thirteen.
14. Defendants admit the averments in paragraph fourteen of the Complaint except deny that Marion C. Blakey, Administrator, Federal Aviation Administration, is a proper party to this action.
Jurisdiction and Venue 15. The averments of paragraph fifteen of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied. 16. The averments of paragraph sixteen of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
4

Exhaustion of Administrative Remedies 17. Defendants admit the averments made in paragraph seventeen of the Complaint. 18. Defendants admit the averments made in paragraph eighteen of the Complaint.
Definition of the Class 19. Defendants deny the averments in paragraph nineteen of the Complaint except as to the third sentence. The third sentence of paragraph nineteen is not susceptible of a reasoned construction, and is therefore denied. 20. Defendants admit the averments made in paragraph twenty of the Complaint only to the extent that this is the class proposed by plaintiffs but deny that such a class is appropriate.
Class Allegations 21. The allegations contained in paragraph twenty-one of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied. 22. The allegations contained in paragraph twenty-two of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied. 23. The allegations contained in paragraph twenty-three of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied. 24. The allegations contained in paragraph twenty-four of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
5

25. Defendants deny that any plaintiffs have been subjected to age discrimination. The remainder of paragraph twenty-five of the Complaint constitutes conclusions of law as to which no response is required but to the extent a response is required, they are denied.
26. The allegations contained in paragraph twenty-six of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
27. The allegations contained in paragraph twenty-seven of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
28. The allegations contained in paragraph twenty-eight of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
29. The allegations contained in paragraph twenty-nine of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
30. The allegations contained in paragraph thirty of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
31. The allegations contained in paragraph thirty-one of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
6

Facts 32. In response to each separate sentence of paragraph thirty-two of the Complaint: Defendants deny the first sentence of the paragraph. Defendants deny the second sentence of the paragraph. Defendants admit the third sentence of the paragraph. Defendants deny the fourth sentence of the paragraph. Defendants admit the fifth sentence of the paragraph. Defendants admit the sixth sentence of the paragraph to the extent it alleges that Flight Service Specialists maintain communications with pilots in the air, but deny the sixth sentence to the extent that Flight Service Specialists “provide up-to-the-minute route adjustments to avoid these severe weather conditions as well as prohibited, restricted or special use airspace.” Defendants deny the seventh sentence of the paragraph. 33. In response to each separate sentence of paragraph thirty-three of the Complaint: Defendants admit the first sentence to the extent that the events of September 11, 2001, demonstrated the role that Flight Service Specialists play in the nation’s aviation system, but deny the characterization of that role as “vital.” Defendants deny the second sentence, including the footnote. Defendants admit the third sentence to the extent that Flight Service Specialists were a “human link between pilots in the air and the FAA,” but deny the characterization of the link as “essential.” 34. Defendants deny the averments of paragraph thirty-four of Plaintiff’s Complaint.
7

35. Defendants deny the averments of paragraph thirty-five of Plaintiff’s Complaint and the Court is referred to the cited case for the terms thereof.
36. Defendants deny the averments of paragraph thirty-six of Plaintiff’s Complaint and the Court is referred to the cited document for the terms thereof.
37. In response to each separate sentence of paragraph thirty-seven of the Complaint: Defendants admit the first sentence of the paragraph and aver that the referenced document is now available at http://www.faa.gov/about/office_org/headquarters_offices/ato/aca/afss/perf_decision/media/Den nis%20DeGaetano.pdf, and refers the Court thereto for the terms thereof. Defendants deny the second sentence of the paragraph except admit to the extent that the selected contractor, Lockheed Martin, plans to consolidate the fifty-eight (58) Automated Flight Service Stations (AFSSs) in existence as of February 1, 2005, into twenty (20) facilities. Defendants further deny the averment that the twenty (20) consolidated facilities will be "new" and aver that Lockheed Martin plans to utilize seventeen (17) existing facilities. Defendants admit the averment in the third sentence of the paragraph except aver that, as of the date of this Answer, no former FAA Flight Service Specialists who accepted employment with Lockheed Martin have relocated due to the planned consolidation of facilities. Defendants deny the fourth sentence of the paragraph except admit to the extent that, as a result of the February 1, 2005, decision, the FAA required fewer Flight Service Specialists in its employ. Defendants deny the averment in the fifth sentence of the paragraph except admit that these "soon-to-be former federal employees have been asked to give up a “federal career" to the
8

extent that Flight Service Specialists separated from the FAA as a result of the October 3, 2005, reduction-in-force who have sought and not found other employment with the federal government no longer have "federal careers." Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment that all Flight Service Specialists separated from the FAA as a result of the reduction-in-force have suffered a "significant" reduction in retirement benefits.
Defendants deny the averment in the sixth sentence of the paragraph except admit that many Flight Service Specialists "will likely have to move to new locations" to the extent that former FAA Flight Service Specialists who accepted employment with Lockheed Martin may have to relocate to another AFSS as part of the planned consolidation. Defendants further aver that, as of the date of this Answer, no former FAA Flight Service Specialists who accepted employment with Lockheed Martin have relocated due to the planned consolidation of facilities. Defendants further deny the averment in the sixth sentence of the paragraph that some former FAA Flight Service Specialists who accepted employment with Lockheed Martin "will not receive the moving assistance benefits currently available to federal employees" and aver that Lockheed Martin has offered relocation benefits to its employees who may have to relocate due to the planned consolidation of facilities.
38. In response to each separate sentence of paragraph thirty-eight of the Complaint: Defendants deny the averment in the first sentence of the paragraph that "the FAA will be separating from federal service 1,935 Flight Service Controllers," and aver that the FAA RIF separated 1,648 AFSS employees including, but not limited to, Flight Service Specialists as a result of the October 3, 2005 reduction-in-force. Defendants are without knowledge or
9

information sufficient to form a belief as to the truth of the averment in the first sentence of the paragraph that "approximately 92 percent" of the 1,935 Flight Service Specialists Plaintiffs predicted would be separated from federal service are over the age of forty (40).
Defendants deny the second sentence of the paragraph and aver that Lockheed Martin hired approximately 1,700 former FAA employees, most of whom are former FAA Flight Service Specialists, to operate the AFSS function under its contract with the FAA. Defendants deny the third sentence of the paragraph except admit to the extent that it applies to FAA Flight Service Specialists.
39. In response to each separate sentence of paragraph thirty-nine of the Complaint: Defendants deny the first sentence of the paragraph and aver that Lockheed Martin hired approximately 1,700 former FAA employees, the bulk of whom are former FAA Flight Service Specialists, to operate the AFSS function under its contract with the FAA. Defendants deny the second sentence of the paragraph except admit to the extent that there is a maximum entry age of thirty (30) for FAA Air Traffic Control Specialists (ATCSs) in the Terminal and En Route options (as opposed to the Flight Service option where Plaintiff Flight Service Specialists were employed), and aver that the FAA established a policy to permit AFSS employees, including Flight Service Specialists, designated as surplus/displaced to be considered for ATCS positions subject to the maximum entry age of thirty (30) even if they were older than thirty (30) years of age, provided they met certain qualifications. As to the cited document following the second sentence, defendants refer the Court thereto for the terms thereof. Defendants deny the third sentence of the paragraph except admit that there is a maximum entry age of thirty (30) for FAA Air Traffic Control Specialists (ATCSs) in the
10

Terminal and En Route options (as opposed to the Flight Service option where Plaintiff Flight Service Specialists were employed), and aver that the FAA established a policy to permit AFSS employees, including Flight Service Specialists, designated as surplus/displaced to be considered for ATCS positions subject to the maximum entry age of thirty (30) even if they were older than thirty (30) years of age, provided they met certain qualifications. Defendants further aver that the FAA also published three separate nationwide vacancy announcements prior to the reduction-in-force for ATCS positions in the Terminal option for which the area of consideration was limited to only surplus/displaced AFSS employees, including Flight Service Specialists.
Defendants deny the averment in the fourth sentence of the paragraph except admit in 2004 that the FAA began recruiting ATCSs for the Terminal and En Route options from outside the FAA.
Defendants deny the averment in the fifth sentence of the paragraph that the FAA plans to hire 12,500 ATCSs over the next ten years and aver that the FAA plans to hire approximately 11,800 ATCSs in the Terminal and En Route options from fiscal year (FY) 2006 to FY 2015. See "A Plan for the Future, 2006-2015, The Federal Aviation Administration's 10-Year Strategy for the Air Traffic Controller Workforce (June 2006)," available at http://www.faa.gov/airports_airtraffic/air_traffic/controller_staffing/media/workforce_plan_0600 06.pdf. Defendants deny the averment in the fifth sentence of the paragraph that the FAA is supplementing its ATCS workforce with "new, younger Controllers," except admit to the extent that the newly hired ATCSs will likely be younger than the existing workforce because: 1) the maximum entry age is thirty (30) for ATCSs in the Terminal and En Route options; and 2) they are replacing ATCSs who are retiring or separating from the FAA.
11

40. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments made in paragraph forty of the Complaint because the term “workforce unit” is not defined. Defendants deny the remainder of the averments in paragraph forty of the Complaint.
41. The allegations contained in paragraph forty-one of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied, including the footnote.
42. In response to each separate sentence of paragraph forty-two of the Complaint: Defendants deny the first sentence except admit that Flight Service Specialists in the Federal Employees Retirement System (FERS) who occupy positions covered by 5 U.S.C. § 2109(1) contribute 1.3 percent of their salary to the Civil Service Retirement and Disability Fund. Defendants deny the averment in the first sentence that “other federal government employees . . . contribute only .08 percent,” and aver that federal government employees in FERS who do not occupy positions covered by 5 U.S.C. § 2109(1) contribute 0.8 percent of their salary to the Civil Service Retirement and Disability Fund. Defendants further deny the first sentence in its entirety with regard to Flight Service Specialists in the Civil Service Retirement System (CSRS) who occupy positions covered by 5 U.S.C. § 2109(1). Defendants deny the second sentence except admit that Flight Service Specialists in both FERS and CSRS who occupy positions covered by 5 U.S.C. § 2109(1) are eligible for retirement: 1) at age fifty (50) with twenty (20) years of creditable service in a covered position; or 2) at any age with twenty-five (25) years of creditable service in a covered position (hereinafter “special retirement eligibility criteria”).
12

Defendants deny the third sentence except admit that Flight Service Specialists in FERS who occupy positions covered by 5 U.S.C. § 2109(1) and meet the special retirement eligibility criteria are eligible to receive an annuity calculated as 1.7 percent of “high three” for the first twenty (20) years of service and 1.0 percent of “high three” for all other years of service. Defendants deny the third sentence in its entirety with regard to Flight Service Specialists in CSRS who occupy positions covered by 5 U.S.C. § 2109(1).
Defendants deny the fourth sentence except admit that Flight Service Specialists in FERS who occupy positions covered by 5 U.S.C. § 2109(1) and meet the special retirement eligibility criteria are eligible to receive an annuity calculated as 1.7 percent of “high three” for only the first twenty (20) years of service and 1.0 percent of “high three” for all other years of service. Defendants deny the fourth sentence in its entirety with regard to Flight Service Specialists in CSRS who occupy positions covered by 5 U.S.C. § 2109(1).
Defendants deny the fifth sentence and aver that Flight Service Specialists in FERS who occupy positions covered by 5 U.S.C. § 2109(1) but do not meet the special retirement eligibility criteria receive an annuity calculated as 1.7 percent of “high three” for all years of service in a covered position and 1.0% of “high three” for all other years of service, provided they have at least five (5) years of service in a covered position and otherwise meet the eligibility requirements of 5 U.S.C. § 8412(a). Defendants deny the fifth sentence in its entirety with regard to Flight Service Specialists in CSRS who occupy positions covered by 5 U.S.C. § 2109(1).
Defendants deny the sixth sentence and aver that Flight Service Specialists in both FERS and CSRS who are not eligible for an immediate annuity may withdraw all of their contributions
13

from the Civil Service Retirement and Disability Fund, including the additional 0.5% contributed by Flight Service Specialists in FERS who occupy positions covered by 5 U.S.C. § 2109(1).
43. In response to each separate sentence of paragraph forty-three of the Complaint: Defendants deny the first sentence and aver that Flight Service Specialists who are not eligible for an immediate annuity may apply for another position in the federal government and, if selected, they can continue to work until they reach eligibility for an immediate annuity. Defendants further aver the Flight Service Specialists who are not eligible for an immediate annuity may withdraw all of their contributions from the Civil Service Retirement and Disability Fund, including the additional 0.5% contributed by Flight Service Specialists in FERS who occupy positions covered by 5 U.S.C. § 2109(1). Defendants deny the second sentence except admit that Flight Service Specialists who are not eligible for an immediate annuity and elect either a discontinued service retirement or a deferred retirement may receive less retirement income (attributable to their federal government service) than if they qualified for an immediate annuity. Defendants further aver that the annuity of Flight Service Specialists in FERS who elect a discontinued service retirement is not reduced if they are below the minimum retirement age. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in the third sentence except admit to the extent that employees who elect a deferred retirement do not carry health and life insurance benefits into retirement. 44. In response to each separate sentence of paragraph forty-four of the Complaint: Defendants admit the first sentence. Defendants deny the second sentence.
14

Defendants deny the third sentence. 45. The first sentence in paragraph forty-five of the Complaint purports to describe Office of Management and Budget (“OMB”) Circular A-76 (revised May 2003), and the Court is referred thereto for the terms thereof, and the sentence is otherwise denied. The allegations contained in the remainder of paragraph forty-five of the Complaint are denied. 46. Defendants deny the allegations in sentences one and two of paragraph forty-six of the Complaint. Defendants admit the averments contained in sentence three of paragraph forty-six of the Complaint except deny that Lockheed Martin is utilizing the software referenced therein. The allegations contained in sentence four of paragraph forty-six of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied. 47. Defendants deny the allegations in paragraph forty-seven of the Complaint. 48. The allegations contained in paragraph forty-eight of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied.
Causes of Action 49. The allegations contained in paragraph forty-nine of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required, they are denied. 50. The allegations contained in paragraph fifty of the Complaint constitute conclusions of law as to which no response is required but to the extent a response is required,
15

they are denied.
Prayer for Relief
51. Plaintiffs’ Prayer for Relief consists of Plaintiffs’ requests for relief, to which no
response is required but to the extent a response is required, they are denied.
Jury Trial Demand
52. The allegations contained in paragraph fifty-two of the Complaint constitute
Plaintiffs’ jury demand, as to which no response is required but to the extent a response is
required, they are denied.
WHEREFORE, Defendants respectfully request that this action be dismissed with
prejudice and that the Court grant Defendants such other relief as may be appropriate.
Dated this 5th day of February, 2007.
Respectfully submitted,
PETER D. KEISLER Assistant Attorney General
JEFFREY A. TAYLOR United States Attorney
STUART A. LICHT Assistant Branch Director Civil Division
s/ Marcia Berman (Electronic Filing) MARCIA BERMAN BRIAN G. KENNEDY (D.C. Bar 228726) WILLIAM B. JAFFE Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 6104 Washington, D.C. 20530 Tel.: (202) 514-3357
16

Fax: (202) 616-8460 Email: brian.kennedy@usdoj.gov Attorneys for Defendants
17

CERTIFICATE OF SERVICE I hereby certify that on February 5, 2007, a true and correct copy of the foregoing Answer of Defendants to First Amended Complaint was served upon plaintiffs' counsel of record at the address listed below: Via ECF: Joseph D. Gebhardt Gebhardt & Associates, LLP 1101 17th Street, NW Suite 607 Washington, DC 20036-4718 (202) 496-0400 Fax: (202) 496-0404 Email: jgebhardt@covad.net
s/ Marcia Berman MARCIA BERMAN
18

 
 Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________

)

KATHLEEN A. BREEN et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MARY E. PETERS1 et al.,

)

)

Defendants.

)

______________________________)

Civil Action No. 05-654 (RWR)

MEMORANDUM OPINION AND ORDER

Plaintiffs are a proposed class comprised of flight service

air traffic control specialists who are age 40 or older and are

current or former employees of the Federal Aviation

Administration ("FAA") of the Department of Transportation

(“DOT”). Plaintiffs allege that the FAA and DOT discriminated

against them by targeting their jobs for outsourcing and

terminating plaintiffs’ federal employment in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a.

Defendants have moved under Fed. R. Civ. P. 12(b)(1) to dismiss

plaintiffs’ claim for lack of jurisdiction. Because this court

has jurisdiction over plaintiffs’ ADEA claims, defendants’ motion

to dismiss will be denied. Defendants have moved in the

alternative for summary judgment, arguing that plaintiffs have

1 The current Secretary of Transportation, Mary E. Peters, is substituted for former Secretary Norman Y. Mineta. See Fed. R. Civ. P. 25(d)(1).

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 2 of 16
-2failed to establish a prima facie case of age discrimination. Because defendants have not demonstrated the absence of a genuine issue of material fact, defendants’ motion for summary judgment will be denied.
BACKGROUND In response to the Federal Activity Inventory Reform Act of 1998, the Office of Management and Budget Circular No. A-76, and President Bush’s 2001 Competitive Sourcing Initiative, the FAA determined that the air traffic control activities plaintiffs had historically performed for the FAA were commercial in nature and could be provided by a private entity at a cost savings without degrading the service. This decision was based on multiple studies conducted by FAA personnel and external consultants. The FAA received competitive contract proposals for the activity, including one from the plaintiffs themselves. The proposals were reviewed by fifty evaluators with technical expertise and ten evaluators with cost expertise. Based on reports by these evaluators, the FAA announced its decision in February 2005 to award the contract for the outsourced activities to Lockheed Martin. Entities or individuals representing the plaintiffs’ interests have challenged the merits of the FAA’s decisions at different steps of the process, including the decision to classify the activity as commercial and the decision to award the

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 3 of 16
-3contract to Lockheed Martin. These challenges triggered reviews that affirmed the FAA’s decisions. The challenge to the decision select Lockheed Martin’s bid was reviewed by a special master, Judge Edwin B. Neill of the General Services Board of Contract Appeals, assigned by the FAA’s Office of Dispute Resolution for Acquisition (“ODRA”) for this review. Judge Neill’s findings and recommendations were adopted by the FAA administrator, and the contract finally was awarded to Lockheed Martin in an FAA order issued July 20, 2005 (“July 2005 Order”). Plaintiffs filed this ADEA complaint shortly after the FAA announced its February 2005 decision to award the contract to Lockheed Martin.
DISCUSSION The provision of the ADEA that applies to federal employers requires that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . [in certain specified entities] shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). It further provides that “[a]ny person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c). Plaintiffs plead both disparate treatment and disparate impact as alternative methods to prove their age discrimination claim. The difference between a disparate treatment case and a

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 4 of 16
-4disparate impact case is the employer’s intent. In a disparate treatment case, the plaintiff seeks to prove through either direct or circumstantial evidence that the employer had a “discriminatory intent or motive” behind its action. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988). In a disparate impact case, there is no need to show that the employer acted with a discriminatory intent. Id. “Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Id. at 987.
Defendants argue that under either theory, plaintiffs’ ADEA claim must be dismissed for lack of jurisdiction. In the alternative, defendants argue that they are entitled to summary judgment because plaintiffs have not established a prima facie case of age discrimination. I. MOTION TO DISMISS FOR LACK OF JURISDICTION
A. Collateral attack on agency decision Defendants contend that plaintiffs’ suit is not a genuine ADEA action, but really a collateral attack on the FAA’s July 2005 Order, the review of which is vested solely in the court of appeals under 49 U.S.C. § 46110(a). From that premise, defendants argue that there is no district court jurisdiction

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 5 of 16
-5over plaintiffs’ age discrimination claim. (Def.’s Mem. in Supp. of Mot. to Dismiss and for Summ. J. (“Def.’s Mem.”) at 61-63.)
Certain FAA administrative orders are reviewable only by the court of appeals. 49 U.S.C. § 46110(a); City of Rochester v. Bond, 603 F.2d 927, 934-35 (D.C. Cir. 1979). In addition, claims that are “‘inescapably intertwined’ with review of such orders” do not fall within a district court’s jurisdiction. Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001). “A claim is inescapably intertwined in this manner if it alleges that the plaintiff was injured by such an order and that the court of appeals has authority to hear the claim on direct review of the agency order.” Id. at 187. However, other related “[a]ctions which are not (or not yet) orders but which are nonetheless reviewable may be raised in the district court . . . .” City of Rochester, 603 F.2d at 935. Thus, what may and may not be heard by a district court in light of the exclusivity provision of § 46110 depends upon whether the claim in the district court “‘could have . . . been’ presented to and decided by a court of appeals” in its § 46110 review of an agency order. Merritt, 245 F.3d at 188 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339 (1958)). In other words, “the test for determining whether an exclusive jurisdiction provision precludes a district court from hearing a given claim is ‘whether the administrative agency had the authority to decide th[e] issue’ raised by the

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 6 of 16
-6claim.” Id. at 188 n.9 (quoting Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 641 (2d Cir. 1985)).
Decisions in this circuit and others illuminate this distinction. For example, a district court had subject matter jurisdiction over a negligence action under the Federal Tort Claims Act (FTCA) against FAA employees for denying a pilot medical certificates, even though the denial of the medical certificates could be reviewed only in accord with § 46110. Beins v. United States, 695 F.2d 591, 597 (D.C. Cir. 1982); see also Merritt, 245 F.3d at 189-91 (holding that a pilot’s negligence claim could be heard by the district court because the negligence claim was not inescapably intertwined with the FAA’s order suspending the pilot’s certificate, which could be reviewed only under § 46110). In Beins, the court noted the critical point that an appeal to the court of appeals from the FAA’s license suspension order could not have led either to a review of the negligence claims lodged in the district court or to an award of damages for negligence. Beins, 695 F.2d at 598 n.11 (distinguishing Beins from City of Rochester where “an appeal of the . . . FAA’s order[] to the court of appeals would have provided an adequate means of reviewing appellants’ allegations in the district court suit”).
Defendants cite Carey v. O’Donnell, 506 F.2d 107 (D.C. Cir. 1974) to support their position that § 46110 precludes district

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 7 of 16
-7court jurisdiction of plaintiffs’ ADEA claims in this instance.2
In that opinion, the court concluded that plaintiffs, who had
sued for violations of the ADEA, the Railway Labor Act (“RLA”),
and the duty of fair representation in the negotiation of the
collective bargaining agreement, had
all had their day in court as contemplated by the statute. Viewed objectively, the actions below, although couched in terms of violations of the RLA and the ADEA, are essentially collateral attacks on the integrated seniority list as incorporated in the . . . agreement . . . [negotiated by plaintiffs’ bargaining unit representatives and the airlines involved in the merger], approved by the Civil Aeronautics Board [(“CAB”)], and reviewed by this court . . . . We perceive no necessity for additional review, not contemplated by the Federal Aviation Act, in the District Court or any other forum.
Carey, 506 F.2d at 110. The opinion did not elaborate on the
facts or analysis driving the conclusion the court reached, but
did frame the issue as “whether the District Court lacks
jurisdiction to entertain a collateral attack upon an order of
the Board approving an airline merger, subject to labor
protective provisions, and upon the Boards’ refusal to exercise
its reserved jurisdiction to set aside an integrated seniority
list negotiated by the parties’ freely chosen representatives.”
Id. at 108. The Carey decision is readily distinguishable on its
2 It is not apparent why defendants cite two other cases in conjunction with this proposition. (See Def.’s Mem. at 63 (citing J.A. Jones Mgmt. Servs. v. FAA, 225 F.3d 761, 762 (D.C. Cir. 2000), and Multimax, Inc. v. FAA, 231 F.3d 882 (D.C. Cir. 2000).) Those two cases do not mention, let alone support, the defendants’ proposition. Nor do they mention the Carey decision.

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 8 of 16
-8facts from the case at hand insofar as the result complained of in Carey was the product of negotiations by plaintiffs’ elected representatives. In addition, the 33-year-old Carey decision appears to have been overtaken by evolving jurisprudence on the preclusive effect of § 46110 reviews, as it has not set the standard either in this circuit or others. See Cook (departing from Carey and holding that the district court was not deprived of its statutory jurisdiction over an ADEA challenge to a seniority system just because it happened to be adopted as part of a merger approved by the CAB, an agency action that was reviewable only by the courts of appeals); Clayton v. Republic Airlines, 716 F.2d 729 (9th Cir. 1983) (departing from Carey and holding that plaintiff could be heard on his duty of fair representation claim in district court even though review of the merger in which the representation occurred was approved by the CAB and review of the CAB’s action was committed exclusively to the courts of appeals); Beins (distinguishing a related negligence action from issues that were or could have been reviewed in a § 46110 appeal); Merritt (same).
Here, plaintiffs have alleged that they have been targeted for termination as federal employees in violation of the ADEA. They complain of impending or executed personnel actions that they allege are discriminatory. Neither the FAA nor the ODRA has authority to hear a complaint of age discrimination. See 29

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 9 of 16
-9U.S.C. § 633a(c) (vesting original jurisdiction in federal district courts). Consequently, an appeal to the court of appeals of the ODRA decision on the bid competition could not have encompassed plaintiffs’ age discrimination claims. As defendants themselves point out, the July 2005 Order is not itself a personnel action. (Def.’s Mem. at 76.) Thus, plaintiffs’ ADEA claim is not inescapably intertwined with the July 2005 Order, and district court jurisdiction is not precluded.
B. Sovereign immunity from disparate impact cases Defendants assert that they are immune from plaintiffs’ age discrimination claim based on a theory of disparate impact. They argue that neither the text of § 633a(a), nor its legislative history, supports a conclusion that Congress waived sovereign immunity from disparate impact age discrimination claims. (See Def.’s Mem. at 77-89.) An inquiry into whether § 633a(a) expressly waived the sovereign’s immunity from suit must begin with the language of the statute itself. See United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989). Where the statute's language is plain, a court is bound to “‘enforce it according to its terms.’” Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). The prohibition for federal employers is simple and sweeping: “All personnel actions affecting employees or applicants for

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 10 of 16
-10employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). The statutory text does not limit or qualify the type of age discrimination that Congress prohibited for federal employers, or limit the theory or proof upon which a plaintiff may base a claim that a federal employer violated § 633a(a). To the contrary, the prohibition extends expressly to “any discrimination based on age.” Id. (emphasis added).
Defendants necessarily, if tacitly, concede that the language of § 633a(a) expressly waives sovereign immunity from disparate treatment age discrimination claims. Yet, defendants do not explain how the language of § 633a(a), which does not mention disparate treatment, disparate impact, motive or intent, expressly waives immunity as to disparate treatment claims while reserving it for disparate impact claims. The text of § 633a(a) does not explicitly or implicitly require a plaintiff to prove that the federal employer was motivated by animus or intended to discriminate in violation of the law.
In short, the plain language of § 633a(a) does not support the distinction between disparate treatment and disparate impact that defendants urge. By prohibiting “any discrimination based on age,” the statute encompasses both disparate treatment and disparate impact cases, as both methods of proof seek redress for illegal discrimination. Despite the differing methods, “[t]he

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 11 of 16
-11-
distinguishing features of the factual issues that typically
dominate in disparate impact cases do not imply that the ultimate
legal issue is different than in cases where disparate treatment
analysis is used.” Watson v. Fort Worth Bank & Trust, 487 U.S.
at 987. “The term ‘discrimination’ does not refer to one method
of analysis over another, instead, it is the destination for two
different pathways of proof.” Lagerstrom v. Mineta, 408 F.
Supp. 2d 1207, 1212 (D. Kan. 2006). The cogent and compelling analysis in Lagerstrom dispels any serious doubt3 that “[t]he
text of Section 633a broadly prohibits any discrimination based
on age, and . . . [that] Congress explicitly waived sovereign
immunity for both intentional discrimination and disparate impact
claims.” Id. at 1213. Accordingly, defendants’ Rule 12(b)(1)
motion to dismiss plaintiffs’ age discrimination claim based on a
theory of disparate impact will be denied.
3 Defendants’ argument that § 633a(a) does not express a waiver of sovereign immunity from a disparate impact claim was first presented in their opposition to the plaintiffs’ motion for a preliminary injunction. The memorandum opinion denying the preliminary injunction noted “good reason to doubt” that § 633a(a) encompasses disparate impact cases, but anchored the denial on other factors. Breen v. Mineta, Civil Action No. 05654 (RWR), 2005 WL 3276163, *7(D.D.C. Sept. 30, 2005). Closer scrutiny, however, reveals that defendants’ argument on § 633a(a)’s waiver of sovereign immunity addresses the wrong question. The proper question is whether § 633a(a) embraces a disparate impact age discrimination claim. It is not, as defendants framed the question, whether the Supreme Court’s statutory interpretation of 29 U.S.C. § 623 in Smith v. City of Jackson, 544 U.S. 228 (2005), works equally well as a statutory interpretation of the very differently worded statutory text of § 633a(a). (See Def.’s Mem. at 79-84.)

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-12II. MOTION FOR SUMMARY JUDGMENT
Defendants have moved in the alternative for summary judgment. They argue that plaintiffs have not established a prima facie case of age discrimination and that there are no material facts in genuine dispute.
Summary judgment may be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, 477 U.S. at 248). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. Here, however, there are no “depositions, answers to interrogatories, and admissions on file” –– all of which are anticipated by Rule 56(c) –– because discovery has not begun.

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 13 of 16
-13Often, “summary judgment motions [are] premature until all discovery has been completed." City of Rome v. United States, 450 F. Supp. 378, 384 (D.D.C. 1978). Summary judgment is premised on the notion that parties will have had “adequate time for discovery” to establish whether a genuine issue of material facts exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Liberty Lobby, 477 U.S. at 257 (stating that plaintiff must have "a full opportunity to conduct discovery"); Paquin v. Fed. Nat’l Mortg. Ass’n, 119 F.3d 23, 28 (D.C. Cir. 1997) (reversing district court’s grant of summary judgment as premature because it declined to permit additional discovery sought by an ADEA plaintiff to develop facts relevant to defendant’s summary judgment motion). Whether proving age discrimination through a disparate treatment theory or through a disparate impact theory, a plaintiff suing under the ADEA is not required to establish a prima facie case at the pleading stage. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510-11 (2002). Neither is an ADEA plaintiff required to defend against a summary judgment motion challenging a prima facie case without first having had the benefit of discovery. “Before discovery has unearthed relevant facts and evidence it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard,

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 14 of 16
-14-
it should not be transposed into a rigid pleading standard for
discrimination cases.” Id. at 512. Indeed, discovery could
possibly reveal direct evidence of intent, foreclosing the need
to prove all elements of a circumstantial prima facie case. Id.
at 511. Furthermore, a disparate treatment claim based on
circumstantial evidence presents its own special problems for
summary judgment.
Since the information relating to state of mind generally is within the exclusive knowledge of one of the litigants and can be evaluated only on the basis of circumstantial evidence, the other parties normally should have an opportunity to engage in discovery before a summary judgment is rendered.4
Charles A. Wright et al., 10B Fed. Practice & Procedure, Civil
§ 2730 at 6-7 (3d ed. 1998). A disparate impact claim, which
does not require a showing of intent, probably cannot be advanced
4 The quote continues: “But even this may not be enough. Inasmuch as a determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable people might differ –– a function traditionally left to the jury –– summary judgment often will be an inappropriate means of resolving an issue of this character.” Id. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions . . . .” Liberty Lobby, 477 U.S. at 255. Even after full discovery has been allowed, “[s]ummary judgment in favor of the party with the burden of persuasion, however, is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999). “The task of assessing a [decision maker’s] motivation, however, is not a simple matter; on the contrary, it is an inherently complex endeavor, one requiring the trial court to perform a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 546 (quotation marks and citation omitted).

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 15 of 16
-15without data that only the defendant can be expected to have. Without access to that data through the discovery process in litigation, a plaintiff could not reasonably be expected to meet the evidentiary requirements of a prima facie disparate impact case.
Here, because plaintiffs have not had an opportunity to adequately develop the facts, no fair determination can be made as to whether a genuine issue of material fact exists. Accordingly, defendants’ motion for summary judgment will be denied without prejudice to its renewal after discovery has been completed.
CONCLUSION AND ORDER Defendants have not shown that plaintiffs’ age discrimination claim is inescapably intertwined with the matters committed to the exclusive review of the court of appeals under 49 U.S.C. § 46110, and § 633a(a) of the ADEA expressly waives the defendants’ sovereign immunity as to age discrimination claims without expressing a limit as to the theory of discrimination. Thus, jurisdiction over plaintiffs’ claims exists. Defendants have not shown that there are no genuine issues of material fact, making summary judgment inappropriate. Accordingly, it is hereby ORDERED that defendants’ motion [23] to dismiss the complaint for lack of jurisdiction be, and hereby is, DENIED. It is further

Case 1:05-cv-00654-RWR Document 46 Filed 01/08/2007 Page 16 of 16
-16ORDERED that defendants’ alternative motion [23] for summary judgment be, and hereby is, DENIED without prejudice. It is further ORDERED that plaintiffs’ motion [45] for a status conference be, and hereby is, GRANTED. A separate order setting the initial scheduling conference accompanies this Memorandum Opinion and Order. SIGNED this 8th day of January, 2007.
/s/ RICHARD W. ROBERTS United States District Judge

 
 Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

KATHLEEN A. BREEN et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 05-654 (RWR)

)

MARY E. PETERS et al.,

)

)

Defendants.

)

______________________________)

MEMORANDUM OPINION AND ORDER Plaintiffs in this putative class action against a federal employer brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a, have moved to join twenty individuals as plaintiffs. In the alternative, the twenty individuals have moved to intervene. In addition, one plaintiff who was dismissed at his own request, Steven C. Syzmanski, has moved to be reinstated. Defendants oppose all three motions. Because the twenty individuals defaulted on a statutory deadline and have not shown cause to excuse the default, the motions to join or intervene will be denied. Because Syzmanski’s claim is timebarred under either of the limitations period advocated by the parties, his motion for reinstatement as plaintiff will be denied.
BACKGROUND On February 1, 2005, the defendants announced a reduction in force to take effect on October 3, 2005 that terminated

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 2 of 10
-2plaintiffs’ federal employment. Plaintiffs elected to bypass the administrative complaint process and filed this action in March 2005 after giving the required 30-days notice of intent to sue required by 29 U.S.C. § 633a(d).
The first amended complaint proposed an “834-person class of the above named Flight Service Air Traffic control Specialists” (First Am. Compl. (“FAC”) ¶ 1), and noted that other members of the class might be added. (Id. ¶ 19.) The class was further defined by an exhibit listing the individuals by name. (Id. Ex. 1.) After the first amended complaint was filed, the membership in the putative class changed, with some members being added and others being dismissed. The class has continued to be defined by names of individual class members. The twenty individuals who are the subject of the motions to join or intervene have never before been part of the putative class.
Movant Syzmanski was one of the originally identified class members listed by name on Exhibit 1 to the first amended complaint. He moved to withdraw as plaintiff, a motion that was granted in March 2006. On May 8, 2007, Syzmanski filed a motion for reinstatement.
DISCUSSION I. MOTION TO JOIN OR INTERVENE
Defendants oppose the motions for joinder or intervention on the ground that movants did not meet the statutory filing

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 3 of 10
-3deadline for bringing an ADEA claim.1 Movants concede that they did not meet the statutory filing deadline. They argue, nonetheless, that because several hundred of the original plaintiffs did meet the statutory filing deadline, movants should be allowed to join or intervene in the action now.
The ADEA permits a federal employee to bypass the administrative complaint process and instead –– subject to a deadline –– simply file a notice of intent to file a civil action in district court. 29 U.S.C. § 633a(d); Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir. 2007). The text of the bypass provision is unambiguous and very clearly states the filing deadline:
When the individual has not filed a complaint concerning age discrimination with the [Equal Employment Opportunity] Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days’ notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. 29 U.S.C. § 633a(d) (emphasis added). The non-jurisdictional 180-day filing deadline stated in 29 U.S.C. § 633a(d) is subject to equitable tolling in the proper circumstances. Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (reiterating that “the timeliness and exhaustion requirements of
1 Defendants also oppose on the grounds that the statute of limitations for bringing an ADEA action has expired, an issue that is not decided here.

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 4 of 10
-4[the ADEA’s] § 633a(d) are subject to equitable defenses”). It
is no bar to the application of equitable tolling principles that
the adversary is a sovereign. “[E]quitable tolling principles
apply against the government on a par with private parties.”
Bull S.A. v. Comer, 55 F.3d 678, 681 (D.C. Cir. 1995) (citing
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990)).
Nonetheless, when the suit is against the federal government, as
is this one, a statutory limitations period “is a condition to
the waiver of sovereign immunity and thus must be strictly
construed.” Irwin, 498 U.S. at 94; see also Felter v. Norton,
412 F. Supp. 2d 118, 123 & n.1 (D.D.C. 2006). Accordingly, a
court should use its equitable power to toll a statutory deadline
only in extraordinary and carefully circumscribed circumstances.
Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988).
The Supreme Court has suggested . . . that courts may properly allow tolling where a claimant has received inadequate notice, . . . where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, . . . where the court has led the plaintiff to believe that she had done everything required of her, . . . [or] where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. In particular, failure to meet a statutory deadline may be excused if it is the result of justifiable reliance on the advice of [a] government officer.
Comer, 55 F.3d at 681 (internal quotation marks and citations
omitted); see also Ray v. Nimmo, 704 F.2d 1480, 1483 (11th Cir.
1983) (reversing and remanding for determination of whether 29
U.S.C. § 633a(d)’s 180-day statutory filing deadline should be

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 5 of 10
-5tolled where agency conduct may have impeded meeting filing deadline); Castro v. United States, 775 F.2d 399, 403 n.4 (1st Cir. 1985).
A party requesting that a statutory deadline be equitably tolled bears the burden of persuasion. Bayer v. U.S. Dep’t of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992); Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982). Plaintiffs and movants offer no facts to establish that equitable tolling of the statutory deadline is warranted in this case. They do not explain why they should not be viewed as merely having sat on their rights while the filing deadline passed, a situation that would not entitle them to equitable tolling. Instead they argue that they should be treated as having vicariously met the statutory filing deadline, because several hundred plaintiffs in the case did provide timely notice to the defendants of their intent to sue under the ADEA in compliance with 29 U.S.C. § 633a(d). They contend that the defendants will suffer no prejudice if either the motion to join or to intervene is granted. Arguing that defendants would suffer no prejudice if 20 more plaintiffs were added to the class reverses the burden, however. Plaintiffs seeking equitable tolling are required to show that they deserve the equitable relief, not that granting the equitable relief will not prejudice the defendants.

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 6 of 10
-6To support their request for relief, plaintiffs and movants
cite cases in which courts have determined that it would be
futile to require yet another prospective Title VII plaintiff to
exhaust his administrative remedies, and therefore applied the
exception of vicarious exhaustion. In those cases, the Title VII
mandatory administrative complaint process entailed a written
complaint, an investigation, and an effort to resolve the
grievance at the administrative level as a potential substitute
for a civil action. In such situations,
[e]xhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. . . . Once a [complainant] has presented his or her claim at a sufficiently high level of review to satisfy the . . . administrative needs, further exhaustion would not merely be futile for the [complainant], but would also be a commitment of administrative resources unsupported by any administrative or judicial interest.
Weinberger v. Salfi, 422 U.S. 749, 765-66 (1975).
The rationale for the vicarious exhaustion exception in
those cases depended on a factor not present in this case ––
pursuit of a full-blown administrative complaint process required
by law. The concept that requiring a second round of
administrative exhaustion is futile has no application where no
first round was required at all. Here, plaintiffs did not file a
claim triggering an administrative review of their complaint, but

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 7 of 10
-7instead opted to bypass that course and just file a notice of intent to sue, as they are permitted to do under 29 U.S.C. § 633a(d). Plaintiffs and movants have identified no case where a court has excused as futile giving notice under 29 U.S.C. § 633a(d) or an analogous notice provision in another statute.
Plaintiffs and movants have identified no extraordinary circumstances that warrant equitable tolling of the statutory deadline, which in this case operates as a limited waiver of sovereign immunity. Irwin, 498 U.S. at 94. Instead, plaintiffs and movants seek to apply the exception for futility and vicarious exhaustion, an exception they have not shown has ever been applied to the § 633a(d) notice provision and that is conceptually inapposite to a notice provision. Accordingly, the motions to join or to intervene will be denied as time-barred. II. MOTION TO REINSTATE FORMER PLAINTIFF
The bypass provision of the ADEA “places no statute of limitations on the filing of a complaint in federal court. . . . Rather, the statute simply requires the plaintiff to give the EEOC 30[ ]days[’] notice before filing a complaint in federal court and to file this notice (not the complaint) within 180 days from the date the alleged unlawful practice occurred. This specific statutory provision does not address, or in any way limit, the time period the plaintiff has to properly file a complaint in federal court.” Rann v. Chao, 209 F. Supp. 2d 75,

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 8 of 10
-879 (D.D.C. 2002) (citing 29 U.S.C. § 633a(d) and Proud v. United States, 872 F.2d 1066, 1067 (D.C. Cir. 1989)). When a federal statute is silent as to its period of limitation, one is borrowed from the most analogous statute. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 742 (D.C. Cir. 1995) (noting that federal courts usually look to analogous state statutes, but in exceptional circumstances are permitted to borrow from a statute of limitations in federal law). No limitations period for 29 U.S.C. § 633a(d) has been adopted in this circuit, and the circuits are not in agreement on the appropriate limitation period. The defendants here favor the 90-day period adopted in Edwards v. Shalala, 64 F.3d 601 (11th Cir. 1995), and the plaintiffs favor the two-year period adopted in Rossiter v. Potter, 357 F.3d 26 (1st Cir. 2004).
Syzmanski’s cause of action accrued when his termination was announced on February 1, 2005, not when his federal employment actually terminated on October 3, 2005. Dela. State Coll. v. Ricks, 449 U.S. 250, 257-58 (1980) (holding that plaintiff’s cause of action for discrimination accrued when he learned that he was denied tenure, not at the time his employment was terminated, which was a delayed but inevitable consequence of the tenure decision). When Syzmanski voluntarily withdrew from the case as a plaintiff in March 2006, he assumed the position of one who had never filed a civil action. Jorge v. Rumsfeld, 404 F.3d

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 9 of 10
-9556, 563 (1st Cir. 2005) (“A voluntary dismissal . . . leaves the parties in the same position as if the action had never been prosecuted.”) (citing Nat’l R.R. Passenger Corp. v. Int’l Ass’n of Machinists, 915 F.2d 43, 48 (1st Cir. 1990); In re Piper Aircraft Distribution System Antitrust Litig., 551 F.2d 213, 219 (8th Cir. 1977) (citing cases)). His voluntary dismissal did not toll the running of the limitation period, however long that period is. Thus, when he moved on May 8, 2007 to be reinstated as a plaintiff, his claim for discrimination was already timebarred even applying the two-year limitation period advocated by plaintiffs. Accordingly, Syzmanski’s motion to be reinstated as a plaintiff will be denied.
CONCLUSION AND ORDER Because the twenty individuals who now want to join or intervene in this action did not file a notice of intent to sue within 180 days of the alleged unlawful action as is required by the statute under which they wish to proceed, and they have not shown cause for excusing their default, the motions to join and to intervene will be denied. Because Syzmanski’s claim is timebarred under either limitations period urged by the parties, his motion to be reinstated as plaintiff will be denied. Accordingly, it is hereby ORDERED that the motions to join [63], to intervene [65], and to be reinstated [64] be, and hereby are, DENIED.

Case 1:05-cv-00654-RWR Document 122 Filed 01/07/2008 Page 10 of 10
-10SIGNED this 7th day of January, 2008.
/s/ RICHARD W. ROBERTS United States District Judge

 
 Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 1 of 144

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

NORMAN Y. MINETA, et al.,

)

)

Defendants

)

__________________________________________)

Case No. 1:05CV00654-RWR

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendants, by their undersigned attorneys, hereby move, pursuant to Rule 12(b(1),

Federal Rules of Civil Procedure, for an order dismissing this action. The grounds for this

motion are that the Court lacks subject matter jurisdiction over some of plaintiffs’ claims. In

support of this motion, the Court is respectfully referred to Defendants’ Combined Opposition to

Plaintiffs’ Application for Preliminary Injunction and Memorandum in Support of Their Motion

to Dismiss and for Summary Judgment that is filed herewith.

In the alternative, defendants hereby move, pursuant to Rule 56, for summary judgment.

The grounds for this motion are that defendants are entitled to judgment as a matter of law and

that there are no disputed issues of fact material to that entitlement. In support of this motion in

the alternative for summary judgment, the Court is respectfully referred to Defendants’

Combined Opposition to Plaintiffs’ Application for Preliminary Injunction and Memorandum in

Support of Their Motion to Dismiss and for Summary Judgment that is filed herewith; to the

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 2 of 144
Statement of Material Facts as to Which There Is no Genuine Issue that is also filed herewith; and to the Declarations and Exhibits Filed herewith.
Respectfully Submitted, PETER D. KEISLER Assistant Attorney General KENNETH L. WAINSTEIN United States Attorney STUART A. LICHT Assistant Branch Director
s/ Marcia Berman BRIAN G. KENNEDY (D.C. Bar 228726) MARCIA BERMAN (PA Bar No. 66168) TIM H. NUSRATY (DC Bar No. 467041) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7204 Washington, D.C. 20530 Tel.: (202) 514-3330 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov Attorneys for Defendants
-2-

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 3 of 144

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

NORMAN Y. MINETA, et al.,

)

)

Defendants.

)

__________________________________________)

Case No. 1:05CV00654-RWR

DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE ARE NO GENUINE ISSUES

Pursuant to Local Rule 7.1(h), defendants Norman Y. Mineta, Secretary of the United

States Department of Transportation, and Marion C. Blakey, Administrator of the Federal

Aviation Administration, hereby submit the following statement of material facts as to which

there are no genuine issues with regard to their motion for summary judgment:

1. Pursuant to Office of Management and Budget (OMB) Circular No. A-76 and the

Federal Activities Inventory Reform (FAIR) Act of 1998, agencies are directed to

classify, on an annual basis, all activities performed by government personnel as

either commercial or inherently governmental. See Hennigan Decl. ¶¶ 2, 8.

2. Once an agency decides that a function is commercial, it must then determine,

through a competitive cost comparison, which commercial activities should be

performed by government personnel and which should be performed by a private

entity. Id. ¶ 8.

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 4 of 144
3. In 2001, President Bush placed the Competitive Sourcing Initiative on his President’s Management Agenda in an effort to expand competitions under OMB Circular A-76. Id. ¶ 9.
4. The Initiative required that federal agencies do a cost comparison (to determine if the function could be performed more efficiently by a private company) or directly convert 15% of its commercial activity inventory (using the calendar year 2000 FAIR Act Inventory as a baseline), and that this be accomplished by the end of fiscal year (FY) 2003. Id.
5. To meet this requirement of 15% for FY 2003, FAA would need to complete a cost comparison for, or convert at least 1,101 full-time-equivalent positions. Id.
6. It is widely recognized that the current Automated Flight Service Station (AFSS) system is unduly expensive and inefficient due to the large number of separate AFSS facilities and because the system utilizes outdated technology. See Courain Decl. ¶ 8.
7. Several internal and external studies, conducted from 1996 through 2001, found that the FAA could provide Automated Flight Service Station (AFSS) services differently and in a more cost effective manner. See Hennigan Decl. ¶ 10.
8. These studies include (i) the 1996 and 2001 Office of Inspector General (OIG) reports regarding the efficiencies and cost savings to be realized from restructuring and consolidating the services performed at automated flight service stations, and (ii) the April 1998 Flight Service Architecture Working Group Report which concluded that AFSS facilities were not meeting the user demand
Page -2-

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 5 of 144
and efficiently providing flight services. Id. ¶¶ 11-13. 9. In its 2001 report, the OIG estimated that the FAA could realize cost savings of
nearly $500 million over seven years by consolidating the FAA’s existing 61 automated flight service stations. See Exhibit 11 at 1. 10. In addition, the OIG determined that consolidation of the existing automated flight service stations could be accomplished “without degradation to safety or service.” Id. 11. In early 2002, the FAA classified most of the functions performed by Flight Service Specialists as commercial and included these functions on the agency’s draft 2002 FAIR Act inventory. Id. ¶ 6. 12. Based on the 1996, 1998, and 2001 reports and in accordance with OMB Circular A-76, the FAA asked a contractor, Grant Thorton, LLP, to conduct a feasibility study to help determine whether the AFSS function was suitable for competition. Id. ¶ 14. 13. The FAA excluded Alaska from the feasibility study due to the unique nature and requirements of aviation in Alaska. Id. 14. The feasibility study, completed in July 2002, determined that the AFSS function was a strong candidate for competitive sourcing because (i) private companies could accomplish the work; (ii) private companies were interested in bidding for and performing the work; and (iii) outsourcing would not compromise safety or homeland security. Id. ¶ 15. 15. On August 21, 2002, the FAA selected the Flight Service function for competitive
Page -3-

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 6 of 144
sourcing. Id. ¶ 16. 16. In September 2002, the FAA transmitted to the Department of Transportation
(DOT) a list of functions to be included on the 2002 FAIR Act inventory. This list included most of the functions performed by Flight Service Specialists. Id. ¶ 6. 17. In March 2003, the National Association of Air Traffic Specialists (NAATS) challenged the FAA’s inclusion of Flight Service Specialists in the agency’s 2002 FAIR Act inventory. Id. ¶ 17. 18. In April 2003, the FAA denied NAATS’ challenge and NAATS appealed to the DOT. Id. ¶¶ 18-19. 19. On May 9, 2003, DOT upheld the FAA’s decision and concluded that the functions of Flight Service Specialists were commercial in nature. Id. ¶ 20. 20. Neither the age nor the retirement eligibility of the workforce played a role in the FAA’s decision to (1) designate the AFSS function on the 2002 FAIR Act inventory; (2) identify the AFSS function for a feasibility study; and (3) competitively outsource the AFSS function. See Hennigan Decl. ¶ 23. 21. Even if the agency had been aware of and considered the age or retirement eligibility of the AFSS workforce, the agency still would have taken the same actions because there was a legitimate business reason for taking them. Id. 22. In December 2003, the FAA announced that the functions performed at the automated flight service stations (excluding those in Alaska) would be bid for competition pursuant to OMB Circular No. A-76. See DeGaetano Decl. ¶ 3;
Page -4-

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 7 of 144
Hennigan Decl. ¶ 21. 23. The FAA received five proposals, including the bid made by the Most Efficient
Organization (MEO), the FAA’s in-house bid. See DeGaetano Decl. ¶ 4. 24. In mid-January of 2005, the FAA’s Source Selection Authority (SSA) was given
the drafts of the Source Selection Evaluation Board (SSEB) Report, the Technical Evaluation Report (TER), and the Cost Evaluation Report. Included with the draft TER was Appendix B, the detailed analysis of the technical strengths and weaknesses of each proposal, and Appendix C, the detailed technical discussion items. Id. ¶ 5. 25. The SSA reviewed each of these appendices, focusing his attention on the SSEB Report, the Technical Evaluation Report and the Cost Evaluation Report. As he had requested, these reports did not disclose the names of the Potential Service Providers (PSPs) and instead referred to the PSPs by number (PSP 1, PSP 2 and so forth). Id. 26. The SSA also carefully reviewed the Screening Information Request, which contained the work requirements for the AFSS services and instructions to PSPs. Id. 27. The reports were the culmination of months’ worth of effort by ten (10) evaluators/advisors with cost expertise and fifty (50) evaluators/advisors with technical expertise. The evaluation teams contained a rich mixture of technical expertise and training as well as hands-on-experience with and knowledge of FAA air traffic operations. Over twenty-five percent (25%) of the Technical Evaluation
Page -5-

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 8 of 144
Team members had thirty (30) or more years of professional experience. Id. ¶ 6. 28. In February 2005, after conducting a detailed analysis of each proposal submitted
for consideration, the FAA selected Lockheed Martin as the vendor to perform the functions of automated flight service stations (excluding those in Alaska). Id. ¶¶ 4-5. 29. The selection decision was made on a “best value” basis, which is defined as “the combination of the impact of the overall benefits, risk, and cost for the delivery of effective flight services to support safe and efficient flight.” Id. ¶ 7. 30. The savings anticipated by the FAA from the public/private competition versus maintaining the existing service is 2.2 billion dollars. See Kansier Decl. ¶ 25. 31. Neither the age nor the retirement eligibility of the existing AFSS workforce was a factor in the FAA’s decision to select Lockheed Martin as the contractor. See DeGaetano Decl. ¶ 8; Kansier Decl. ¶ 26. 32. Indeed, the agency official responsible for making the selection of Lockheed Martin did not even know the identity of the successful bidder until after the decision had been made. See DeGaetano Decl. ¶ 8; Kansier Decl. ¶ 17. 33. Even if the agency was aware of and had considered the age or retirement eligibility of the workforce, the agency still would have selected Lockheed Martin’s proposal because it represented the best value to the agency. See DeGaetano Decl. ¶¶ 7-8. 34. Following the February 1, 2005 award of the AFSS contract to Lockheed Martin, Agency Tender Official (ATO), James H. Washington, filed a contest on behalf
Page -6-

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 9 of 144
of the Most Efficient Organization to challenge the contract decision. See Washington Decl. ¶ 5. 35. The ATO did not allege that age was a factor in selecting Lockheed Martin as the contractor. Id. 36. In March 2005, the principal named plaintiff in this suit, Kathleen A. Breen, filed a separate contest and also intervened in the ATO contest. See Exhibit Y at 3. 37. Plaintiff Kathleen A. Breen filed the contest as the agent for the majority of the affected FAA employees. Id. 38. The FAA appointed Judge Edwin B. Neill of the General Services Board of Contract Appeals to serve as the Special Master to make findings and recommendations on the resolution of the contest. Id. 39. On June 28, 2005, Judge Neill issued a 99-page decision rejecting plaintiffs’ claims in their entirety. Id. 40. On July 20, 2005, the FAA Administrator issued an Order adopting Judge Neill's findings of fact and recommendations in full. See Exhibit Z. 41. The Order provided that to the extent that the decision is subject to review, "such review shall be sought in accordance with Title 49, United States Code § 46110." Id. 42. Neither the age nor the retirement eligibility of the AFSS workforce was a factor in the FAA Administrator’s July 20, 2005 Order. See Blakey Decl. ¶ 5. 43. The primary function of Flight Service Specialists is to provide a variety of meteorological and aeronautical information to assist pilots in planning a safe
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flight. Flight Service Specialists do not separate or control air traffic. See Sheridan Decl. ¶ 4. 44. While the specialist is required to use interpretive and judgment skills, he or she does not have the authority to resolve a situation outside the bounds provided by the guidance materials. Id. ¶¶ 4, 6. 45. Many private companies provide some of the services similar to the Flight Services. In addition, major air carriers have an in-house operations department that provides services similar to those provided by Flight Service Stations. Id. ¶ 12. 46. Flight Service Specialists do not have policy-level decision-making authority or the ability to bind the Government to one course of action over another, in the performance of their duties. Id. ¶¶ 4, 6, 8. 47. With the increasing ability and demand for some services previously provided by AFSS to be provided on-line, a significant reduction in the number of offices providing such services will achieve substantial savings. Id. 48. The FAA issued RIF Notices on July 22, 2005 to all AFSS employees covered by the Lockheed Martin contract who would be separated from employment with the FAA after October 3, 2005. See Williams Decl. ¶ 6. 49. The Notices provided information about the grievance and appeal processes. Id. 50. On February 18, 2005, the FAA certified all AFSS employees covered by the Lockheed Martin contract as "surplus," effective February 22, 2005. Id. ¶ 4. 51. Upon receipt of the RIF Notice, an employee is designated as “displaced.” Id. ¶ 6.
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52. Surplus/displaced employees are entitled to a wide variety of benefits and career transition services from the FAA. See Williams Decl. ¶¶ 8-15; Reyna Decl. ¶ 12.
53. In addition, with respect to staffing, Lockheed Martin’s overall objective is to retain as many persons in the incumbent workforce as possible consistent with the staffing requirements of the new system. See Courain Decl. ¶ 25.
54. To that end, Lockheed Martin proposed to make job offers to all AFSS employees and to guarantee three years of employment to all full-time regular employees who are currently assigned or who are projected to be assigned to any of the 20 continuing facilities in Lockheed’s proposal. Id.
55. To staff the three new Hub facilities, Lockheed Martin intends to give employees at the facilities to be closed the first opportunity to relocate to one of those new facilities. Id.
56. Moreover, Lockheed Martin will hire all incumbent employees at their present FAA pay rates, including locality pay, and they will receive 100% of current vacation benefits and a package of other Lockheed Martin employment benefits. Id.
57. For those employees currently assigned to sites slated to close during the transition period (and who would therefore be terminated at the time of site closing unless they are relocating to a Hub facility), Lockheed Martin offered, among other things, a $5,000 signing bonus, a laptop computer valued at $2400, and another $5,000 bonus for staying through the completion of their duties at the closing site. Id. ¶ 26.
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58. For incumbent employees at the 17 continuing AFSS sites, Lockheed Martin offered, among other things, the $5,000 signing bonus, the laptop computer, and a three-year employment guarantee. Id. ¶ 27.
59. Similarly, for incumbent employees relocating to a Hub facility, Lockheed Martin offered the $5,000 signing bonus, the laptop computer, a relocation package valued at up to $50,000, a completion bonus for staying through a least one year at the new location of 20% of base compensation, and a three-year employment guarantee. Id.
60. In addition, all incumbents at the 20 continuing facilities will be eligible to share in up to 20% of the “award fee” that Lockheed Martin will be eligible to receive from the FAA for successful contract performance. Id.
61. Lockheed Martin’s proposed staffing plan projects a gradual reduction in the number of AFSS specialists over the course of the transition and base periods of the contract. Id. ¶ 28.
62. Lockheed Martin will be able to perform the same workload with fewer specialists because of the ability to use the highly integrated FS21 system to perform workload balancing, and through use of other technology innovations and new system efficiencies. Id.
63. Most of the specialist staffing reduction will occur during transition as Lockheed Martin closes the 41 facilities. That process is scheduled to commence on April 1, 2006. Id. ¶ 29.
64. After these initial reductions, Lockheed Martin projects further decreases in the
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specialist population based on natural attrition (i.e., leave for a new job, retirements, death, disability, etc.). Id. 65. Lockheed Martin plans to hire new specialists to replace members of the incumbent workforce only to the extent that an insufficient number of specialists accept its employment offers for any location or that natural attrition reduces the number of specialists below required levels. Id.

Respectfully Submitted,
PETER D. KEISLER Assistant Attorney General
KENNETH L. WAINSTEIN United States Attorney
STUART A. LICHT Assistant Branch Director

Dated: August 23, 2005

s/ Marcia Berman BRIAN G. KENNEDY (D.C. Bar 228726) MARCIA BERMAN (PA Bar No. 66168) TIM H. NUSRATY (D.C. Bar 467041) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7204 Washington, D.C. 20530 Tel.: (202) 514-3330 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Civil Action No.

Plaintiffs

)

1:05-cv-00654-RWR

)

v.

)

)

NORMAN Y. MINETA, et al.

)

)

Defendants.

)

)

DEFENDANTS' OPPOSITION TO PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

PETER D. KEISLER Assistant Attorney General

KENNETH L. WAINSTEIN United States Attorney

STUART A. LICHT Assistant Branch Director

SHERYL L. WILLIAMS MICHAEL DOHERTY NATHAN TASH Office of the Chief Counsel Federal Aviation Administration

BRIAN G. KENNEDY (D.C. Bar 228726) MARCIA BERMAN (PA Bar No. 66168) TIM H. NUSRATY (D.C. Bar 467041) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7204 Washington, D.C. 20530 Tel.: (202) 514-3330 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov

Attorneys for Defendants

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TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. STATUTORY AND REGULATORY BACKGROUND . . . . . . . . . . . . . . . . . . . 4 II. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Background on Flight Service Specialists . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The FAA's History of Contracting out Air Traffic Control
Services to the Private Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. The FAA's Decision to Compete and Award the Flight
Service Function to a Commercial Entity . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Numerous Studies of the Flight Service Function
Conclude That it Is Ripe for Reform . . . . . . . . . . . . . . . . . . . . . . 10 2. The President Establishes Competitive Sourcing
as an Administration Priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3. The FAA Directs That a Study Be Prepared on the
Feasibility of Competitively Sourcing the Flight Service Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4. The FAA Selects the Flight Service Function for Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5. The FAA Includes Activities Performed by Flight Service Specialists in its 2002 FAIR Act Inventory of Commercial Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 6. The FAA Conducts the AFSS Public-Private Competition and Awards a Contract to Lockheed . . . . . . . . . . . . 19 a. The FAA Carefully Evaluated All Proposals . . . . . . . . . 19 b. Lockheed's Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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7. Judge Neill Squarely Rejected All A-76 Contests to the FAA's Contract Award to Lockheed . . . . . . . . . . . . . . . . . . . 24
8. The FAA initiated an RIF of all AFSS positions covered by the AFSS A-76 Competition . . . . . . . . . . . . . . . . . . . 25
9. FAA Has Made Great Efforts to Mitigate Any Negative Effects of the RIF on the Incumbent Workforce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
III. PROCEDURAL POSTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
I. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
II. PLAINTIFFS CANNOT ESTABLISH A CLAIM OF DISPARATE TREATMENT UNDER THE ADEA . . . . . . . . . . . . . . . . . . . . . 30
A. Standards for Disparate Treatment Liability under the ADEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
B. Plaintiffs' Prima Facie Case Fails Because There Are No Facts Sufficient to Create a Reasonable Inference of Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. Plaintiffs' References to the Retirement Eligibility of the AFSS Workforce Do Not Raise a Reasonable Inference of Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . 33
2. Neither the FAA's Air Traffic Controller Workforce Plan, Nor the FAA's Implementation of That Plan, Raise a Reasonable Inference of Age Discrimination . . . . . . . . . 38
3. Plaintiffs Have Presented No Statistical Evidence to Make a Prima Facie Showing of Disparate Treatment . . . . . . . . 41
4. Plaintiffs' Claim That the FAA Deviated from Established Policy and Practice in its Decisions about the Flight Service Function Is Baseless and Does Not Raise a Reasonable Inference of Age Discrimination . . . . . . . . . 43
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5. Plaintiffs' Claim That the Challenged Agency Action Was Intended to Reduce the Number of Older Flight Service Specialists Who Accept Employment with Lockheed Is Equally Baseless . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6. Plaintiffs' Argument That the FAA Rejected Equally Effective, Nondiscriminatory Alternatives Cannot Raise a Reasonable Inference of Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
C. The FAA Had Legitimate, Nondiscriminatory Reasons for Competitively Sourcing the Flight Service Function . . . . . . . . . . . . 49
1. The FAA Chose the Flight Service Function for an A-76 Competition Because of the Well-Documented Finding That Flight Services Could Be Performed More Efficiently and at a Lower Cost . . . . . . . . . . . . . . . . . . . . . . . . . 49
2. The FAA's Decision to Conduct an A-76 Competition for Flight Services Was Based on the Determination That it Was Feasible to Successfully Compete the Flight Service Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3. The FAA Subjected Flight Services to an A-76 Competition in Compliance with the Administration's Competitive Sourcing Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4. The FAA Awarded the Contract to Lockheed Because its Bid Provided the Best Value to the Government . . . . . . . . . . 53
D. Plaintiffs' Arguments That the FAA's Legitimate Nondiscriminatory Reasons Are Pretextual Are Meritless . . . . . . . . . . . 54
E. Plaintiffs Have Failed to Satisfy the Requirements for a Mixed Motive Claim, and the Evidence Supports a Same-Decision Affirmative Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. Plaintiffs' Fail to Establish That Age Played Any Part in the Decisions Which They Challenge . . . . . . . . . . . . . . . 57
2. The FAA Is Entitled to Judgment Because it Has Established a Same-Decision Affirmative Defense . . . . . . . . . . 59
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III. PLAINTIFFS CANNOT COLLATERALLY ATTACK PRIOR ADMINISTRATIVE DECISIONS UNDER THE GUISE OF AN ADEA CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
A. This Court Lacks Jurisdiction over a Challenge to the FAA's July 20, 2005 Order Rejecting Plaintiffs' Challenge to the FAA's Decision to Award the AFSS Contract to Lockheed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
B. The Doctrine of Collateral Estoppel Precludes Plaintiffs From Challenging The FAA's July 20, 2005 Order . . . . . . . . . . . . . . . . 63
1. The Requirements Set Forth In Utah Constr. & Mining Co. Are Met In This Case . . . . . . . . . . . . . . . . . . . . . 64
2. Plaintiffs Have Already Unsuccessfully Litigated Many Factual Issues And Claims Before Judge Neill . . . . . . . . . 67
C. Plaintiffs' Challenges to the FAA's Decisions to List Flight Service Specialist Activities on its 2002 FAIR Act Inventory and to Subject AFSSs to an A-76 Cost Competition Are Untimely under the ADEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
D. The Prior Administrative Decisions Cannot Be Collaterally Attacked Because They Do Not Constitute Adverse Personnel Actions Under The ADEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
IV. THERE IS NO GENUINE ISSUE OF MATERIAL FACT TO SUPPORT, AND THEREFORE NO LIKELIHOOD OF SUCCESS ON THE MERITS OF, PLAINTIFFS' DISPARATE IMPACT CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
A. This Court Lacks Jurisdiction Over Plaintiffs' Disparate Impact Claim Because Congress Did Not Waive the Federal Government's Sovereign Immunity for Age Discrimination Claims Based on the Disparate Impact Theory of Liability . . . . . . . . . . . 77
1. The Text of the Statutory Prohibition on Age Discrimination in Federal Employment Does Not Contain or Support a Waiver of Immunity for Disparate Impact Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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a. The Adea Provision Applicable to Federal Employees Is More Limited Than the ADEA Private Sector Provisions . . . . . . . . . . . . . . . . . . . . . . . . 78
b. The Supreme Court's Interpretation of the Private Sector ADEA Provision Precludes Inferring a Cause of Action Based on the Disparate Impact Theory From the Federal Employment ADEA Provision . . . . . . . . . . . . . . . . . . . . 80
i. The Smith Rationale . . . . . . . . . . . . . . . . . . . . . . 80
ii. The Smith Rationale Does Not Apply to the Federal Employment Provisions of the ADEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
2. The Legislative History of the Federal Sector ADEA Provision Confirms That Congress Did Not Intend to Waive Sovereign Immunity for Disparate Impact ADEA Claims Against the Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
a. Senate and House Statements and Reports Related the Federal Employment ADEA Provision to Inherently Intentional Conduct . . . . . . . . . . 84
b. The Different Legislative Purposes of Title VII Show That Congress Did Not Intend the Federal Employment ADEA Provision to Include Disparate Impact Claims . . . . . . . . . . . . . . . . . . 88
c. The Sole Decision Analyzing the Applicability of Disparate Impact Under the ADEA Is Inapposite and Does Not Survive the Supreme Court's Decision in Smith . . . . . . . . . . . . . . . . . . . . . . . . 90
B. Defendants are Entitled to Summary Judgment Because Plaintiffs Have Presented No Statistical Evidence to Make a Prima Facie Showing of Disparate Impact . . . . . . . . . . . . . . . . . . . . . . 91
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V. BECAUSE PLAINTIFFS' CLAIMED INJURIES ARE ENTIRELY COMPENSABLE OR WHOLLY SPECULATIVE, AND PLAINTIFFS FAIL TO ESTABLISH IMMINENT "EXTRAORDINARY" INJURIES, THE COURT MUST DENY INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
A. Plaintiffs Will Not Suffer Any “Irreparable Injury” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
1. Because Plaintiffs' Claimed Economic Injuries are Compensable or Subject to Other Corrective Relief if Plaintiffs Prevail, Injunctive Relief Should Not Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
2. Because Plaintiffs Rely Upon Speculative or Attenuated Injuries, Injunctive Relief is Inappropriate . . . . . . . 101
3. Because Of Their Decision To Accept Employment With Lockheed, The Vast Majority of Plaintiffs Will Suffer No Appreciable Harm And May In Fact Benefit From The RIF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
a. The RIF Entails No Massive "Job Losses" Because Plaintiffs Overwhelmingly Accepted Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
b. Plaintiffs Receive Substantial Retention Bonuses and Other Benefits in the "Land Soft Package" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
c. Similar Harms Would Have Occurred Under The RIF Option That Plaintiffs Supported, But With Larger Numbers Of Relocations And Less Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
4. The Absence Of Compensatory Relief Under The ADEA Provides No Basis For Injunctive Relief . . . . . . . . . . . . 107
B. Plaintiffs Have Not Satisfied The Heightened Test For Preliminary Injunctive Relief That Applies In Cases Involving Federal Personnel Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 112
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VI. ENJOINING THE RIF WOULD IMPOSE A SUBSTANTIAL HARM ON THE FAA AND LOCKHEED, AND WOULD SEVERELY HARM THE PUBLIC INTEREST . . . . . . . . . . . . . . . . . . . . . . . 112 A. Both The Federal Defendants And Lockheed Would Be Substantially Harmed If Injunctive Relief Were Granted . . . . . . . . . . . 112 1. FAA Would Suffer Substantial Monetary Harm if an Injunction Issued . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 2. FAA Would Suffer Substantial Programmatic Harms if an Injunction Issued . . . . . . . . . . . . . . . . . . . . . . . . . . 113 3. Any Delay to the RIF Would Harm Lockheed's Phase-In/Transition Plan . . . . . . . . . . . . . . . . . . . . 117 B. The Public Interest Would Be Harmed By Enjoining The RIF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
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INTRODUCTION Plaintiffs are experienced and valuable employees who provide a needed service to general aviation pilots. Unfortunately, the system and structure through which plaintiffs’ employer, the Federal Aviation Administration (“FAA”), delivers “Flight Services” to its general aviation customers has become outmoded. Much of the work consists of providing pre-flight weather and flight-related information to customers who increasingly can obtain much the same information themselves through the Internet and other modern technologies. With 58 offices across the continental United States, Hawaii, and Puerto Rico providing information that modern technology now allows to be distributed in a more centralized fashion, the FAA’s sprawling system for providing Flight Services is a relic of the 20th century that costs taxpayers $25 every time a plaintiff picks up the telephone to provide service. In accordance with the President’s Management Agenda identifying competitive sourcing of commercial activities as a major government-wide initiative to improve government performance, the FAA, pursuant to the FAIR Act, Pub. L. No. 105-270, § 2, 112 Stat. 2382 (reprinted at 31 U.S.C. § 501 note), conducted an open competition among a number of private enterprises and a group seeking to keep the services delivered within an FAA-based structure. Lockheed Martin fairly won the competition, and entered into a $1.9 billion dollar contract with the FAA. Central to Lockheed’s plan to deliver services more efficiently is its ability to continue to use the Flight Service specialists who have served the FAA. On the date when what plaintiffs repeatedly call the “mass RIF and job eliminations,” e.g., Pl. App. at 94, take place, every plaintiff who wants a job with Lockheed will have one. Plaintiffs argue that, in turning over the managerial responsibility to operate the Flight Service function to a private company that can do the job more efficiently and that will make use
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of workers from the pre-existing workforce, the FAA somehow violated the portion of the Age Discrimination in Employment Act (“ADEA”) that applies to the federal government, 29 U.S.C. § 633a. Over and over again, plaintiffs cite three supposed indicators of FAA’s bias, and it is striking how far any of them are from supporting any claim of actual age bias. First, plaintiffs accuse the FAA of being in favor of “‘workforce flexibility’” and “‘enhanced productivity,’” Pls’ App. 48, 71, citing Pls’ Ex. 14 at 3-4. Of course it is. The government ought to be interested in achieving flexibility and productivity. The ADEA is no enemy of those goals, and nothing in the ADEA even remotely suggests that employers are required to embrace an ethic of rigid inefficiency. Second, plaintiffs say that the FAA “equated the older workforce with one that is in need of an ‘upgrade.’” Pls’ App. at 70-71, 83, 94, characterizing Pls’ Ex. 51. In fact, Exhibit 51 says that it is the “stations [that] are in disrepair” and cites the need to “upgrade our equipment and our service.” Finally, plaintiffs rely most heavily on a non-decisionmaker’s drawing attention to a “retirement eligible workforce.” Pls’ Ex. 50. But this was merely a way of noting – after the decision to subject Flight Services to competition had been made – how the impact of the competition on some within the workforce would be lessened because some employees would be eligible to receive retirement benefits from the government and go to work for a private vendor, if one was selected. Declaration of Johann Kansier, Director of FAA's Office of Competitive Sourcing ("Kansier Decl."), attached hereto as Exhibit A.
And even those members of the Flight Service workforce who are not already eligible to both receive a federal pension and still work at Lockheed will not suffer the kind of extraordinary irreparable harm that would be required to support a preliminary injunction. The kinds of harms that employees who lose a job sustain (and many of these plaintiffs are merely switching employment from the FAA to Lockheed, not losing employment altogether) may generally, and
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here would be, made good by final relief and need not and ought not be preliminarily enjoined as a matter of public policy that has been recognized for more than three decades. Sampson v. Murray, 415 U.S. 61, 90 (1974). Plaintiffs attempt to show more specialized harm involving employees who will relocate. In a modern, mobile economy and society, these are far from the first employees who are faced with a choice whether to move for a job, and the harm from such relocation would thus not be extraordinary and irreparable even if it were imminent. It is not imminent since relocation will not be required until April 2006 at the earliest. See Declaration of Daniel J. Courain, Vice President, Business Process Services, Lockheed Martin Corporation ("Courain Decl."), attached hereto as Exhibit B, ¶ 29.
Plaintiffs’ contentions about the harm of relocating overlooks two other points. First, Lockheed is paying generous bonuses and relocation allowances to those asked to relocate. Courain Decl. ¶ 27. Second, relocation would have been required whether or not the FAA had made the challenged decision to allow a private bidder to manage these services: as plaintiffs themselves admit, “[a]ll of the internal and external proposals available to the FAA . . . would have consolidated” facilities, Pls’ App. at 88 (emphasis added), and the proposal favored by plaintiffs in particular “proposed an aggressive consolidation down to four facilities,” id. at 8889. Lockheed, by contrast, is preserving jobs at 20 facilities. Thus, Lockheed’s bid requires less relocation than the alternative supported by plaintiffs.
In contrast to the lack of irreparable harm to plaintiffs, a preliminary injunction would impose truly irreparable harms on the FAA, Lockheed, and the public interest. Lockheed is in midstream in conducting the overdue reorganization of the way in which Flight Services are delivered. The people and resources devoted to setting up the new structure cannot be placed in suspended animation by an injunction and spring back into action without missing a beat years
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hence when the injunction is lifted. Instead, much of the groundwork, planning, and implementation resources that have already been poured into this project will be irreversibly lost. Kansier Decl. ¶ 23. As a result, the FAA, which Lockheed will look to make good the sunk costs of the investments a preliminary injunction will cause it to lose, will sustain millions of dollars of losses, see id., that plaintiffs – who say they cannot post even a modest bond – are unlikely to make good.
Accordingly, plaintiffs are not entitled to injunctive relief both because the balance of hardships is tilted strongly against their claims of irreparable harm and because they have shown no likelihood of success on the merits. Indeed, plaintiffs’ claims are so clearly devoid of merit that the action should be dismissed, or, in the alternative, the Court should enter summary judgment for defendants.
BACKGROUND I. STATUTORY AND REGULATORY BACKGROUND
The longstanding policy of the federal government has been to rely on the private sector to supply the products and services the government needs. OMB Circular No. A-76 (Revised 1999), "Performance of Commercial Activities," at ¶ 4(a).1 For many years, the federal government has distinguished between "inherently governmental activities" and "commercial activities" for purposes of determining when an agency must use only federal workers to perform
1 This national policy was promulgated through Bureau of the Budget Bulletins issued in 1955, 1957, and 1960, and subsequently through guidance documents, policy letters and handbooks issued by the Office of Management and Budget (OMB). OMB Circular No. A-76 is OMB's principle policy guidance on this topic. Initially issued in 1966, OMB Circular No. A-76 was revised in 1967, 1979, 1983, 1999, and 2003. See OMB Circular No. A-76 (Revised 1999) at ¶ 4(b). The 1999 version of OMB Circular No. A-76 was in effect at the time of the challenged decisions except for the competition itself, which ended in February 2005. We therefore cite primarily to the 1999 version of OMB Circular No. A-76.
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its activities or when it may use private sector workers. Pursuant to OMB Circular No. A-76 and the Federal Activities Inventory Reform (FAIR) Act of 1998, agencies are directed to classify, on an annual basis, all activities performed by government personnel as either commercial or inherently governmental. For suitable commercial activities, agencies are to determine, through a competitive cost comparison, which commercial activities should be performed by government personnel and which should be performed by a private entity. OMB Circular No. A-76 (Revised 1999), available at http://www.dla.mil/j-3/a-76/OMBCircularA-76.html (last visited Aug. 23, 2005), at ¶¶ 5, 8-10; FAIR Act, Pub. L. No. 105-270, § 2, 112 Stat. 2382 (reprinted at 31 U.S.C. § 501 note).
The FAIR Act essentially codified the administrative definition of "inherently governmental" function contained in OMB Circular No. A-76 and embodied in OMB's Office of Federal Procurement Policy (OFPP) Letter 92-1, dated September 23, 1992 ("OFPP Policy Letter 92-1"), available at http://www.acqnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-1.html (last visited Aug. 23, 2005). The FAIR Act defines an "inherently governmental function" as a function "that is so intimately related to the public interest as to require performance by Federal Government employees." FAIR Act, § 5(2)(A). See also OMB Circular No. A-76 (Revised 1999) at ¶ 6(e); OFPP Policy Letter 92-1 at ¶ 5. Both the FAIR Act and OMB's guidance explain that inherently governmental functions are "activities that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgments relating to monetary transactions and entitlements." FAIR Act, § 5(2)(B). See also OMB Circular No. A-76 (Revised 1999) at ¶ 6(e);2
2 In May 2003, OMB revised OMB Circular No. A-76 to state that inherently governmental activities require the exercise of "substantial" discretion. Current OMB Circular
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OFPP Policy Letter 92-1 at ¶ 5. In contrast, services or products that merely support inherently governmental functions are commercial activities. OMB Circular No. A-76 (Revised 1999) at ¶ 6(e).
Building on the exercise of discretion as the distinguishing feature of inherently governmental functions, the FAIR Act further states:
An inherently governmental function involves, among other things, the interpretation and execution of the laws of the United States so as --
(i) to bind the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise; [or] . . .
(iii) to significantly affect the life, liberty, or property of private persons . . . . FAIR Act, § 5(2)(B). OFPP Policy Letter 92-1 provides the following guidance as to the meaning of the exercise of discretion:
While inherently governmental functions necessarily involve the exercise of substantial discretion, not every exercise of discretion is evidence that such a function is involved. . . . [T]he mere fact that decisions are made by the contractor in performing his or her duties . . . is not determinative of whether he or she is performing an inherently governmental function. OFPP Policy Letter 92-1 at ¶ 7(a). Once an agency determines that a function is commercial, the presumption in accordance with OMB Circular A-76 is that the function should be provided by the private sector unless it is less expensive for the government to continue to perform that function using its own personnel. To make that determination, the agency conducts a competition to compare the cost of performing the function in-house with the cost of contracting the function out for performance by
No. A-76 (revised 2003) at Attachment A, ¶ B(1)(b), available at http://www.dla.mil/j-3/a-76/ OMBCircularA-76New.html (last visited Aug. 23, 2005).
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the private sector.3 OMB Circular No. A-76 recognizes that cost comparisons are not required for commercial activities meeting certain conditions. OMB Circular No. A-76 (Revised 1999) at ¶ 8. The government may continue performing a commercial activity when, inter alia, the activity involves the performance of a core capability related to the agency's mission. OMB Circular No. A-76 Revised Supplemental Handbook at Ch. 1(C)(3), available at http://www.dla.mil/j-3/a-76/A-76SupplementaryHandbookPart%20I.html#1C (last visited Aug. 23, 2005).4
Under the FAIR Act, interested parties may challenge an agency's classification of an activity as commercial. FAIR Act, § 3. The FAIR Act provides for an administrative challenge to the inclusion or omission of an activity from an agency's commercial activities inventory. FAIR Act, § 3(a). The challenge is submitted to the agency, and the agency designates an official who must decide the challenge within 28 days. FAIR Act, § 3(d). An interested party may appeal an adverse decision to the head of the agency. FAIR Act, § 3(e). II. FACTUAL BACKGROUND
A. Background on Flight Service Specialists The FAA currently operates 61 Automated Flight Service Stations (AFSSs) and 14 part-time Flight Service Stations (FSSs). There are currently 58 AFSSs in the continental United States, Hawaii and Puerto Rico, and 3 AFSSs in Alaska. The 14 part-time FSSs are not
3 Such a competition is also referred to as “competitive sourcing.” 4 The current version of OMB Circular No. A-76 provides a series of reason codes to be used to explain an agency's rationale for government performance of a commercial activity. Reason Code A applies to a "commercial activity [that] is not appropriate for private sector performance pursuant to a written determination by the CSO [competitive sourcing official]." OMB Circular No. A-76 (Revised 2003) at Attachment A, ¶ C.
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automated and are all in Alaska. Declaration of Paul J. Sheridan (“Sheridan Decl.), attached hereto as Exhibit C, at ¶ 2.
The function of the Specialist in an AFSS or FSS is to provide meteorological and aeronautical information primarily to general aviation pilots to assist them in planning a safe flight. Id. ¶ 4. The general aviation pilot is one who owns his or her own plane and does not provide commercial or charter passenger services. Id. ¶ 5. During flight, Flight Service Specialists provide real-time weather advisories and updates on navigational aids to pilots. Id. ¶ 4. Flight Service Specialists also coordinate aircraft flight plans with other facilities, initiate search and rescue activities when aircraft fail to arrive at destinations, and provide assistance to pilots who are lost or disoriented. Id.
The duties and responsibilities of the Flight Service Specialist differ significantly from those of an Air Traffic Controller in a Terminal or En Route position. Terminal controllers, located at airport towers or terminal radar approach controls (TRACONs), direct and control aircraft operating at or near airports. Their main responsibility is to organize the flow of aircraft into and out of the airport. Relying on radar and visual observations, they closely monitor each plane to ensure a safe distance between all aircraft and to guide pilots safely. En route controllers control aircraft outside the airport terminal airspace and observe and control the airplanes in their airspace on radar. Flight Service Specialists primarily support the general aviation community and do not direct, separate or control air traffic. Id. ¶¶ 7, 8.
The cost to the FAA of providing the Flight Service function is over $500 million a year. Each time a Flight Service Specialist picks up the phone to provide service, it costs the taxpayer an average of $25. The cost of this service comes out of the FAA's budget, the majority of which comes from the Aviation Trust Fund. The Aviation Trust Fund is fed mainly by taxes on air
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passenger tickets. The Aviation Trust Fund is currently in dire straights, due to the financial distress of the aviation industry. See Text of Prepared Remarks of Administrator Blakey AOPA Speech, at 2, attached hereto as Exhibit D.
B. The FAA's History of Contracting out Air Traffic Control Services to the Private Sector
The FAA has, for many years, contracted with private companies to staff air traffic control towers at smaller airports. See June 12, 2002 Statement of DOT on Amendment of Executive Order on Air Traffic Organization, attached hereto as Exhibit E. In 1982, the FAA began contracting out air traffic services at low activity towers as a result of the Professional Air Traffic Controllers Organization strike. In 1993, Vice President Gore's National Performance Review endorsed the Contract Tower Program as an effective means of reinventing government services. See April 12, 2000 OIG Report on Contract Towers: Observations on FAA's Study of Expanding the Program, at Executive Summary, attached hereto as Exhibit F. Currently, there are 226 towers in the Contract Tower Program. Declaration of Wanda Reyna (“Reyna Decl.”), attached hereto as Exhibit G, at ¶ 11. The Department of Transportation (DOT) Office of the Inspector General (OIG) has concluded that contract towers are comparable in quality and safety to FAA-operated towers and can be operated less expensively than FAA-operated towers. See Sept. 4, 2003 OIG Report, Safety, Cost, and Operational Metrics of the FAA's Visual Flight Rule Towers, at 1-2, attached hereto as Exhibit H; April 12, 2000 OIG Report on Contract Towers: Observations on FAA's Study of Expanding the Program, at introductory memo (Ex. F); May 18, 1998 OIG Report on Audit of Federal Contract Tower Program, at Executive Summary, attached hereto as Exhibit I. Congress has expressly approved the Contract Tower Program. See 49
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U.S.C. § 47124; April 12, 2000 OIG Report on Contract Towers: Observations on FAA's Study of Expanding the Program, at Executive Summary (Ex. F).5
The Department of Defense also uses private companies to provide air traffic control services at a number of towers it operates. See Determination as to the Inherently Governmental Nature of Certain Air Traffic Control Services (July 12, 2002), at 1, attached hereto as Exhibit K. Many countries that formerly provided air traffic control as a government service, such as Canada, Germany, Great Britain, and Australia, now obtain these services from a commercial entity. Id.
C. The FAA's Decision to Compete and Award the Flight Service Function to a Commercial Entity 1. Numerous Studies of the Flight Service Function Conclude That it Is Ripe for Reform
By the time the FAA made the decision to conduct the AFSS A-76 competition in Augut, 2002, it was a well-documented fact that the agencies' AFSSs and FSSs were in need of a major overhaul. An internal FAA working group, the Inspector General for DOT, and outside agencies and organizations all studied the Flight Service function and came to the conclusion that the Flight Service operation was a bloated organization that suffered serious operational and cost inefficiencies. Various strategies were proposed for fixing it, ranging from enhancing automation systems to consolidation of AFSSs, to having the private sector perform the entire Flight Service function.
5 The National Air Traffic Controllers Association challenged the FAA's decision to privatize certain air traffic control towers, and that litigation is ongoing. The court in that case recently held that Level I air traffic control is not an inherently governmental function, as a matter of law, based on 49 U.S.C. § 47124(b) (directing Secretary to continue and extend Contract Tower program). See National Air Traffic Controllers Association v. Mineta, Case No. 99CV1152 (N.D. Ohio Feb. 4, 2005) (not on Westlaw, opinion attached hereto as Exhibit J).
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In January, 1978, the FAA published its Flight Service Station Automation Master Plan ("Master Plan"). One of the objectives of the Master Plan was to improve the efficiency and productivity of the expensive and labor intensive Flight Service Station network by consolidating 318 FSSs into 61 automated FSSs. See OIG Audit Report, Management Advisory Memorandum on Acquisitions for Automated Flight Services, at 2 (Dec. 16, 1996), attached hereto as Exhibit L. A series of FAA Flight Service working groups recommended additional consolidation of Flight Service Stations, finding that 61 AFSSs were still too many stations to efficiently meet user demand, and formulated plans for implementing further consolidation of facilities and systems. See Flight Service Architecture Core Group Report at ¶ 1.3 (April 30, 1998), attached hereto as Exhibit M.6 These analyses and recommendations were made between 1995 and 1998. Id.
Building on the early work of the FAA's Flight Service working groups, the Inspector General for the Department of Transportation issued a report in December, 1996, in which he observed that the FAA had an opportunity to substantially reduce flight service operating and acquisition costs by consolidating AFSSs and exploring the potential of providing flight services in other ways. OIG Audit Report, Management Advisory Memorandum on Acquisitions for Automated Flight Services, at 2-4 (Dec. 16, 1996) (Ex. L). The OIG's analysis of AFSSs revealed wide variations in operating and cost efficiencies among FAA regions. Id. at 5-7. The OIG concluded that the FAA could significantly reduce costs by performing comprehensive efficiency analyses of the existing AFSSs and implementing consolidation. In support of this
6 The April 30, 1998 Flight Service Architecture Core Group Report also refers to recommendations of further efficiencies within Flight Service made by the General Accounting Office and the National Civil Aeronautics Review Commission. See Flight Service Architecture Core Group Report at ¶ 1.1 (April 30, 1998) (Ex. M).
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conclusion, the report discussed a 1995 study by the FAA's Western Pacific Region Air Traffic
Division, conducted in partnership with plaintiffs' union, the National Association of Air Traffic
Specialists, to determine the feasibility of further consolidating AFSSs. That study projected a
10-year net savings of $19.1 million from consolidation. Id. at 7. The OIG additionally found
that current technology was not an impediment to consolidation and observed that from a
technological standpoint, "it is possible to provide the entire flight service function from a single
facility." Id. at 8.
Beyond recommending additional consolidation, the OIG recommended that before the
FAA awarded a contract for a new automation system known as OASIS, the FAA "[c]omplete an
extensive evaluation of the private sector providing the full range of flight services from the
pre-flight function to entire flight service function." Id. at 10. The OIG explained as follows:
In our opinion, FAA also needs to include an alternatives analysis of the private sector providing the full range of flight services from the pre-flight function to the entire flight service function. We note that the flight service function could be provided similar to FAA's Contract Tower Program (Government owned/contractor operated). . . . Besides the Governmen owned/contractor operated type program, the flight service function could also be provided as a contractor owned/contractor operated operation. For instance, the current DUATS [Direct User Access Terminal Service] service is owned and operated by a contractor. We visited two potential OASIS vendors who stated that providing the entire flight service was technologically feasible and were very willing to provide the service. . . .
All pre-flight and most in-flight services can be performed in the commercial sector. After extensive analysis, FAA may find that a few functions such as search and rescue, customs and law enforcement support, and emergency services may need to be kept in-house. However, these functions account for a very low volume of transactions and could be performed from a single site or possibly at other FAA facilities . . . . Notwithstanding the potential political and union pressure opposing the private sector providing the flight service function, FAA, before making an OASIS contract award[,] should perform an extensive evaluation of the full range of alternatives.
Id. at 8-10.
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In 2001, the OIG issued another review of ways to improve efficiency and obtain cost savings in the Flight Service program. In a report issued on December 19, 2001, the OIG estimated that the FAA could save nearly $500 million over seven years by consolidating the FAA's existing 61 AFSSs into 20 sites, in conjunction with the planned deployment of OASIS. See OIG Report on Automated Flight Service Stations, at 1 (Dec. 7, 2001), attached to Pl. App. at Pl. Exh. 11). The OIG determined that consolidation of the AFSSs could be accomplished without any negative effect on safety or service for the following reasons:
– Services provided by flight service specialists are increasingly being replaced by on-line flight services accessed directly by users – the improved technology of OASIS will enhance on-line access to services such as better weather displays and automatic flight plan processing; – FAA has already consolidated over 315 flight service stations into the current 61 sites with no adverse impact to safety or service; – Internal FAA studies have concluded that 61 sites are not necessary to meet current and future demand for flight services and recommended reducing the number of automated flight service stations by over half; – Critical in-flight services, such as enroute weather briefings, would be maintained under a consolidation strategy; and – Users have stated that they do not object to consolidation, provided there are automated technologies, such as OASIS, in place to maintain existing levels of service. Id.
2. The President Establishes Competitive Sourcing as an Administration Priority
When President George W. Bush came into office in 2001, he identified competitive sourcing as a major initiative of his Administration. In 2001, the Administration released the President's Management Agenda, in which President Bush designated competitive sourcing of commercial activities as one of five major, government-wide initiatives to improve government
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performance. See President's Management Agenda at 17-18, attached hereto as Exhibit N. The competitive sourcing initiative was based on the fact that nearly half of all federal employees perform tasks that are readily available in the commercial marketplace, and that "competition between public and private sources remains an unfulfilled management promise." Id. at 17. The President's Management Agenda noted that "[r]ecent competitions under OMB Circular A-76 have resulted in savings of more than 20 percent for work that stays in-house and more than 30 percent for work outsourced to the private sector." Id. at 18. In order to realize these savings, the Administration instructed agencies to meet the goal for 2002 of completing competitions on 5% of commercial activities and an additional 10% for 2003. Id. at 18.
Agencies have broad discretion to determine the types of commercial activities to be competed. See Competitive Sourcing: Conducting Public-Private Competition in a Reasoned and Responsible Manner (OMB July 2003) at 4, attached hereto as Exhibit O. In order to meet the 15% requirement, the FAA needed to complete a competition on at least 1,101 full-time equivalent positions. Declaration of John Hennigan (“Hennigan Decl.”), attached hereto as Exhibit P, at ¶ 9.
3. The FAA Directs That a Study Be Prepared on the Feasibility of Competitively Sourcing the Flight Service Function
In early 2002, the FAA prepared a draft FAIR Act inventory for 2002 that identified the Flight Service Specialist function as a commercial activity. See Hennigan Decl. ¶ 6. In 2002, the FAA identified the Flight Service function as a candidate for competitive sourcing. Id. The Flight Service function was considered to be a strong candidate for competitive sourcing primarily because of the conclusions reached in the 1996 and 2001 OIG reports regarding the efficiencies and cost savings to be realized from restructuring the provision of AFSS services.
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See Grant Thornton Feasibility Study at 1 (July 12, 2002), attached hereto as Exhibit Q; Hennigan Decl. ¶ 14.
The FAA hired Grant Thornton LLP to conduct a feasibility study to help the FAA determine whether to initiate a public-private competition, pursuant to OMB Circular No. A-76, for the Flight Service function. Hennigan Decl. ¶ 14. Grant Thornton identified the specific activities performed by Flight Service specialists and assessed the feasibility of competing each activity with the private sector. Grant Thornton evaluated each primary activity based on four criteria related to the feasibility of subjecting the activities to competitive sourcing: (1) the impact that the private sector's provision of the activity would have on FAA's mission; (2) the availability of commercial sources to perform the activity; (3) any security risks associated with the activity being performed by the private sector; and (4) any personnel issues that may impact on the feasibility of competing the activity. Grant Thornton Feasibility Study at 4-5 (Ex. Q). Additionally, Grant Thornton conducted market research to help determine industry availability to perform the various activities. (Id. at 8-11). Grant Thornton identified a number of companies in the private sector with both the interest and capability to perform the Flight Service primary activities. Id.
As set forth in its July 12, 2002 feasibility study report, Grant Thornton concluded that most of Flight Service primary activities were feasible to subject to a public-private competition pursuant to OMB Circular No. A-76. Grant Thornton found that there was a potential risk inherent in having some activities provided by a commercial source, but concluded that those risks were not substantial enough to warrant excluding the activities from a competitive sourcing study. Id. For example, providing international customs notifications and support to law enforcement agencies have a risk of compromising sensitive law enforcement and security data.
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However, since these concerns could be addressed by requiring that potential commercial sources obtain security clearances, the activities were deemed feasible for competition. Id. at 17.
4. The FAA Selects the Flight Service Function for Competition In August, 2002, the FAA selected the Flight Service function for a competitive sourcing study. In an August 21, 2002 memorandum, Chris Bertram, FAA's Chief Financial Officer, notified the Acting Administrator of his decision to proceed with a competitive sourcing study, based on Grant Thornton's conclusions that a substantial number of Flight Service personnel perform commercial activities, that private industry has the capability and interest in performing the Flight Service function, and that having a private company do so would not compromise aviation safety or homeland security. See Memo from Chris Bertram to Acting Administrator (Aug. 21, 2002), attached hereto as Exhibit R. Mr. Bertram explained that the competitive sourcing study of the Flight Service function "is a central part of our effort to meet the requirements of [the President's competitive sourcing] initiative" as set forth in the President's Management Agenda. Id. Mr. Bertram also stated that the competitive sourcing study would not include the Flight Service function in Alaska, due to the unique nature and requirements of aviation in Alaska. Id.; see also Hennigan Decl. ¶ 16.
5. The FAA Includes Activities Performed by Flight Service Specialists in its 2002 FAIR Act Inventory of Commercial Activities
The Department of Transportation included many of the activities performed by Flight Service Specialists in its 2002 FAIR Act inventory of commercial activities. The designation of Flight Service activities as either commercial or inherently governmental tracked the conclusions of the Grant Thornton feasibility study. See Memo from Steven J. Brown to CFO at 1 (April 9,
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2003), attached hereto as Exhibit S. The FAA explained its decision to list most of the functions performed by Flight Service Specialists as commercial as follows:
These functions are defined by detailed, precise instructions and guidance set out in numerous FAA orders, including 7110.10, Flight Services; 7610.4, Special Military Operations; 7900.5, Surface Weather Observing; 7930.2, Notices to Airmen, and others. The functions performed by FAA specialists support the FAA's mission of aviation safety and security. The discretion afforded any FSS specialist in the performance of his or her duties, however, is bound by the instructions and guidance in these orders and other material. While the specialist is required to use interpretive and judgment skills, he or she does not have the authority to resolve a situation outside the bounds provided by the guidance materials. Similar functions are provided by contractors worldwide, and some are performed by contractors in the United States for non-Federal entities. In summary, there is no policy-level decisionmaking, no ability to bind the Government to one course of action over another, in the performance of these activities. Id. at 1-2. While some FSS and AFSS positions had been listed on the FAA's 2000 and 2001 FAIR Act inventories, the activities of the Flight Service Specialists, for the most part, did not appear on the inventory until 2002. Hennigan Decl. ¶ 6. Also included in the Department's 2002 inventory of commercial activities were activities involving the separation and control of air traffic, but these were identified as core capabilities not subject to cost comparison. See Memo from Administrator Blakey to Air Traffic Terminal and Center Employees (Dec. 19, 2002), attached hereto as Exhibit T. On March 4, 2003, the Union representing Flight Service Specialists, the National Association of Air Traffic Specialists, challenged the FAA's inclusion of activities performed by Flight Service Specialists in its 2002 Fair Act inventory, pursuant to the FAIR Act. See NAATS FAIR Act challenge, attached hereto as Exhibit U; FAIR Act, § 3. They argued that Flight Service activities are inherently governmental because they relate to the core mission of the
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agency to maintain and enhance aviation safety and security, and because they significantly affect the life or property of private persons. NAATS FAIR Act challenge (Ex. U).
On April 10, 2003, the FAA rejected NAATS's FAIR Act challenge. The FAA explained that NAATS's position that any activity that pertains to an agency's mission is inherently governmental is unsupported by the FAIR Act, OMB Circular No. A-76, or any other guidance. Furthermore, while the services provided by Flight Service specialists affect aviation safety and security, their actions are bound and directed by a web of pre-established federal regulations, FAA Orders, rule and procedures surrounding and defining the actions and authority of the specialist. The specialist does not have the authority to bind the United States to take or not to take some action. See FAA response to NAATS's FAIR Act challenge (April 10, 2003), attached hereto as Exhibit V.
NAATS appealed the FAA's decision to the DOT, pursuant to § 3(e) of the FAIR Act. DOT upheld the FAA's decision in a thoughtful, nine-page written opinion addressing all of NAATS's arguments. See DOT letter to NAATS President Walter Pike (May 9, 2003), attached hereto as Exhibit W. DOT concluded that with the exception of those activities identified by the FAA as inherently governmental, the duties of Flight Service Specialists fall into the category of providing support to the agency's mission, which may be considered commercial under OMB Circular No. A-76, rather than actually performing an inherently governmental function. DOT also reasoned as follows:
While Flight Service Specialists perform activities that include the use of professional judgment and expertise, they do not have the authority to provide that advice outside of a myraid of FAA regulations, policy and procedures with respect to how air traffic control services are to be performed. Thus, they do not exercise discretion in applying Federal Government authority in the manner contemplated by the FAIR Act. . . . The Flight Service Specialists do not have the discretion to
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modify or ignore FAA regulations or policy or to commit the Government to a course of action that differs from that contained in agency regulations or policy. Id. at 7.
6. The FAA Conducts the AFSS Public-Private Competition and Awards a Contract to Lockheed
In December, 2003, the FAA began an A-76 public-private competition for the services provided by the 58 AFSSs in the continental United States, Puerto Rico and Hawaii. See Hennigan Decl. ¶ 21. That competition ultimately culminated in a contract being awarded to Lockheed on February 1, 2005.
a. The FAA Carefully Evaluated All Proposals After issuing a Screening Information Request in May 2004 to obtain bids for the contract, FAA employees competed against four private companies to propose a solution to AFSSs which reduces costs and improves the AFSS service without diminishing safety. See Kansier Decl. ¶ 8. The technical proposals were received in August 2004 and the cost proposals a month later. These proposals were evaluated by a Technical Evaluation Team ("TET") and Cost Evaluation Team ("CET"), respectively, that produced reports to the Source Selection Evaluation Board ("SSEB") listing strengths and weaknesses of the various proposals.7 Id. ¶¶ 1116. The reports "were the culmination of months' worth of effort by 10 evaluators/advisors with
7 The TET considered the proposals on four technical factors listed in the solicitation: (i) Phase-in; (ii) Staffing and Management; (iii) Service Delivery; and (iv) Performance Management. Kansier Decl. ¶ 14. The CET evaluated proposals on total cost, compliance with the solicitation, cost reasonableness, cost realism, and total cost of ownership. Id. ¶ 15. The TET, CET, and SSEB Reports as well as the evaluation guides all contain highly sensitive proprietary information. FAA will submit these document, to the extent the Court desires them, upon a request from the Court and entrance of a protective order.
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cost expertise and fifty evaluators/advisors with technical expertise." Declaration of Dennis Degaetano, ("Degaetano Decl."), attached hereto as Exhibit X at ¶ 6.
The SSEB conducted an independent comparative evaluation of the various proposals and the reports of the TET and CET. Kansier Decl. ¶ 17. Under the solicitation, the ultimate award was to go to the "best value" for the government, which was defined as "the combination of the impact of the overall benefits, risk and cost for the delivery of effective flight services to support safe and efficient flight." Id. ¶ 13. Applying this standard, the SSEB drafted a report making a recommendation on the award of contract to the Source Selection Authority ("SSA"), Dennis Degaetano. Id. ¶ 17. The SSEB recommended that Lockheed be awarded the contract but identified Lockheed and the other proposals with unique numbers not by name, so that the SSA would not know in advance who would be receiving the contract. Id.; Degaetano Decl. ¶¶ 5-7.
The SSA accepted the SSEB recommendation because the recommendation "was sound, rationally based on an impartial and thorough evaluation, and was in all other aspects arrived at in accordance with the competition's evaluation criteria." Degaetano Decl. ¶ 7. After carefully reviewing not only the SSEB report, but the technical and cost evaluation team reports, the SSA decided that vender number 2 (which was Lockheed) had made the offer, which was the best value to the government. Id.
b. Lockheed's Proposal The core of Lockheed's plan was to reduce the number of locations where the AFSS services are provided from 58 locations down to 3 primary hubs in new buildings near existing locations and 17 cities in existing locations. See Courain Decl. ¶ 19. Additionally, Lockheed relied on substantial improvements to technology that allowed for the gradual reduction in the number of AFSS employees during the transition while maintaining service levels. See id. ¶¶
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22-25 (describing the FS21 system and technological upgrades). Another key facet of the Lockheed proposal was that it made "job offers to all AFSS employees and . . . guarantee[d] three years of employment to all full-time regular employees who are currently assigned or who are projected to be assigned to any of the 20 continuing facilities in our solution." Id. ¶ 25 (emphasis in original). "Of the approximately 2300 FAA employees who were in the incumbent AFSS workforce when [Lockheed] began the phase-in, 2119 applied for employment with Lockheed and received offers. Of those offers, 2018 were accepted and only 70 were declined." Id. ¶ 33.
The period between the award of the contract in February 2005 and the RIF, which is due to occur in early October 2005, is the "phase-in period." The phase-in period will allow Lockheed to gear up to take over responsibility of these job functions after the RIF, while simultaneously allowed the FAA to gear down and cease making long term investments in the dated system and has been ongoing for about seven months. Id. ¶¶ 12, 31. The phase-in period involves "facility and operational assessments of all current AFSS system elements; Human Resources ("HR") activities relating to transition of the current FAA workforce to private employment; leasing and construction of the new Hub facilities; and continuing integration and customization of the FS21 system." Id. ¶ 32. "At the beginning of the phase-in, 2027 of the 2300 FAA employees in the incumbent workforce were specialists" and "1960 of those specialists applied for and received an offer of employment with Lockheed Martin" while "1880 specialists formally accepted those offers in writing and 59 formally declined the offers" Id. ¶ 34. Lockheed has "offered 1224 of them a three-year employment guarantee." Id. ¶ 35. While Lockheed is on schedule, there is still much to do in the phase-in period to complete human resources training, including open houses in August and September 2005, and continued "work
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on the Hub facilities, continue preparations for the upgrade and modernization of the 17 continuing AFSS facilities, and continue customization and systems integration work on the FS21 system." Id. ¶ 37-39.
Once the RIF is effective after October 3, 2005, there is an 18 month transition period. As of that date, the Lockheed will take over operations at the existing facilities with all of the current employees who have accepted offers. During the transition period Lockheed will introduce the FS21 operational system and complete renovations of the facilities that are being retained. Id. ¶ 41. It is also during the transition period that the number of facilities will be reduced from the current 58 to the 3 hubs and 17 other facilities. See id. ¶ 19. Thus, 41 facilities will ultimately close during the transition period. See id. Thus, "[m]ost of the specialist staffing reduction will occur during transition as we close the 41 facilities" but "[t]hat process is scheduled to commence on April 1, 2006." Id. ¶ 29 (emphasis added). The planning for the remaining phase-in period has already occurred and a great amount of effort has already been expended regarding the transition period, which would require tremendous effort and cost to change at this late stage. See id. ¶ 43-53 (discussing the planning done to date and harm that would flow from an alteration of the transition schedule).
Over 95% of current AFSS employees will be employed with Lockheed as of the effective date of the RIF. Lockheed provided a minimum $5,000 signing bonus for every person agreeing to work for Lockheed. Id. ¶ 26-27. Plaintiffs currently working at locations that will eventually close receive an additional $5,000 completion bonus. Id. ¶ 26. Moreover, plaintiffs choosing to relocate receive an additional bonus of 20% of their base compensation. Id. ¶ 27. These bonus payments are only one aspect of the generous benefits plaintiffs are entitled to after the RIF. Lockheed agreed to match current incumbent salaries, including locality pay increases
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offered by the federal government, id. ¶ 25, and advanced each incumbent 40 hours of sick leave on the first day of employment and the right to accrue vacation at the rate identical to the government rate. Agency Tender Official James H. Washington, et al. v. FAA, 05-ODRA00342C and 05-ODRA-00343C (consolidated) (June 28, 2005) (hereinafter “Neill ODRA Opinion”)8 at 23 (describing Lockheed's proposal), attached hereto as Exhibit Y. Additionally, Lockheed provided a generous 401K retirement plan. Each Specialist is also eligible to share in up to 20% of the "award fee" that Lockheed will be eligible to receive from the FAA for successful contract performance. Courain Decl. ¶ 27. Lockheed provided every specialist with a laptop computer valued at $2400. Id. ¶¶ 26-27. Lockheed's offer also provided plaintiffs 100% tuition reimbursement and corporate career opportunities with Lockheed for all employees, including temporary hires. Finally, relocating plaintiffs are entitled to a relocation package from Lockheed totaling up to $50,000, which includes broker registration, trips to find new homes, temporary living expenses, closing costs on real estate transactions, moving household goods, a temporary allowance at the new location, and spousal job assistance. Id. ¶ 27; see Neill ODRA Opinion at 23 (describing Lockheed's proposal). While the Lockheed plan does plan for staff reductions, over the course of the transition period, "[m]ost of the specialist staffing reduction will occur during transition as we close the 41 facilities" which "is scheduled to commence on April 1, 2006." Id. ¶ 29. "After those initial reductions, [Lockheed] projected further decreases in the specialist population based solely on natural attrition (i.e., leave for a new job, retirements, death, disability, etc.)." Id.
8 The redacted version of Judge Neill’s ruling is attached. FAA will submit the unredacted version of this opinion, which contains sensitive proprietary information, should the Court request and after a protective order is entered.
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7. Judge Neill Squarely Rejected All A-76 Contests to the FAA's Contract Award to Lockheed
Following the February 1, 2005 award of the contract to Lockheed, Agency Tender Official James H. Washington filed a contest on March 11, 2005, to challenge the contract decision. On March 14, 2005, the principal named plaintiff in this suit, Kate Breen, filed a separate contest and also intervened in the Agency Tender Official contest. The FAA appointed Judge Edwin B. Neill of the General Services Board of Contract Appeals to serve as the Special Master to make findings and recommendations on the resolution of the contests for the Office of Dispute Resolution for Acquisitions (ODRA). The original and supplemental contests raised numerous issues and alleged inter alia that the FAA was biased against the incumbent Most Efficient Organization (MEO) proposal or in favor of Lockheed and that the FAA either did not give sufficient weight to the strengths of the MEO proposal or failed to properly analyze costs and other problems with the Lockheed proposal. Judge Neill’s ruling rejected these claims in their entirety. In so doing, Judge Neill made 136 findings of fact and rejected plaintiffs' claims of bias, Neill ODRA Opinion at 45-49, 62-65 (finding no individual or institutional biases) and errors in evaluation of the proposals various strengths and weaknesses, see id. at 72-86 (concluding that the TET's decisions were rationally based) & 86-96 (addressing price reasonableness, cost realism, and claims that Lockheed's bid had a variety of unrealistic costs). Judge Neill held that SSEB undertook a careful review of the reports and that the SSEB and SSA made a reasonable best value judgment in choosing Lockheed, concluding that "the objections of the contesters to the SSEB's recommendation and to the SSA's final selection to be without merit." Id. at 98-101.
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Marion Blakey, Administrator of the FAA, adopted Judge Neill's findings of fact and recommendations in full on July 20, 2005. See FAA Order No. ODRA-05-348 (July 20, 2005), attached hereto as Exhibit Z. This order denied plaintiffs' (and Agency Tender Official's) contests and is appealable only to the appropriate court of appeals within 60 days of the opinion. Id. (citing 49 U.S.C. § 46110, which provides for exclusive review in the courts of appeals).
8. The FAA initiated an RIF of all AFSS positions covered by the AFSS A76 Competition
On July 6, 2005, the FAA initiated an RIF of all AFSS positions covered by the AFSS A76 competition. Declaration of George W. Williams, Jr. (“Williams Decl.) at ¶ 5, attached hereto as Exhibit AA; Declaration of James H. Washington (“Washington Decl.”) at ¶ 4, attached hereto as Exhibit BB.. Neither age nor retirement eligibility was a factor in beginning the RIF. See Washington Decl. ¶ 6. Plaintiffs received formal RIF notice on July 22, 2005, that all AFSS positions covered by the Lockheed contract would be separated from employment with the FAA after October 3, 2005. This notice provided affected plaintiffs with rights to appeal. Plaintiffs may file a claim with the Merit Systems Protection Board within 30 days after the RIF or, if the claim relates to a complaint of discrimination a claim with the Equal Employment Office within 45 days. Id.; See Attachment A to RIF Notice (July 22, 2005)
Members of the NAATS Bargaining Unit also have the right to file a grievance under their collective bargaining agreement within 20 days of receiving the RIF notice. All employees may use the FAA's internal procedure, the Guaranteed Fair Treatment process, and file an appeal within 10 days of receipt of the RIF notice. See Attachment A to RIF Notice (July 22, 2005).
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9. FAA Has Made Great Efforts to Mitigate Any Negative Effects of the RIF on the Incumbent Workforce
On February 18, 2005, all AFSS employees covered Lockheed contract were certified as "surplus," effective February 22, 2005. See Williams Decl. ¶ 4. This made them eligible for a wide variety of benefits that FAA provided.
First, the FAA contracted with FPMI Solutions to establish a Career Transition Assistance Center providing web-based and telephonic services with professional career counselors and job developers. The services include providing job outplacement services, one on one counseling sessions on resume writing and development, job networking, interview coaching and techniques, and financial management resources.9 Id. ¶ 9.
Second, employees certified as surplus are also eligible to participate in Preferred Placement Programs (PPPs). Id. ¶ 11. The FAA established one PPP for vacancies within the Air Traffic Organization and another for vacancies within the FAA but outside the Air Traffic Organization, which are described in AHR Policy Bulletins. Under the PPPs, surplus employees receive priority on all internal job vacancies and selecting officials must provide written justification to higher level officials if they do not select a surplus/displaced employee. All internal vacancy announcement dates were extended and the area of consideration included surplus/displaced employees. The ATO also issued a separate nationwide vacancy announcement for Air Traffic Control Specialists at certain facilities within the terminal option for which the area of consideration was limited to only surplus/displaced employees.
9 FAA also allowed employees certified as surplus to use up to 16 hours per pay period to engage in career transition activities. Id. ¶ 10. Employees who accept employment with Lockheed may received eight hours per pay period to search for employment with the federal government. Id.
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Furthermore, the FAA created an age exemption program that allows surplus/displaced employees to apply for ATCS positions in the terminal and en route options for which they would not otherwise be qualified. Id. ¶¶ 11-12.
Third, when the formal RIF notices issued in late July 2005, the affected employees became designated as "displaced." Id. ¶ 6. As displaced employees, they became eligible for the FAA's Selection Priority Program (SPP). Id. ¶ 15. Under the SPP, displaced employees must be selected for all external FAA vacancies within the commuting area if well-qualified for the position before a non-FAA candidate continuing for two years beyond their separation date. Id. Moreover, eligibility for displaced employees to participate in the SPP, is not be affected by initial acceptance (or declination) of Lockheed's job offer. Id. Finally, the FAA increased its coordination with the other federal agencies to assist in the placement of displaced employees find federal employment. Id. ¶ 19. In light of these extraordinary efforts, the FAA alone had made at least 229 job offers to surplus/displaced AFSS employees through these programs as of August 19, 2005. Id. ¶ 13.
Finally, FAA has made an extra effort to reach out to the existing AFSS employees in a variety of ways. Teams of human resources professionals have visited all 58 AFSS facilities twice to brief affected employees and employment and retirement options, career transition, RIF procedures, federal employment benefits and entitlements (unemployment, terminal leave, severance pay, interchange agreement). Id. ¶ 17. FAA also established twelve help desks staffed with human resources professionals to answer similar questions. Id. The FAA also expanded its Employee Assistance Program (EAP) by adding resources to accommodate initial counseling services to employees designated as surplus and their families and to provide on-site seminars at
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the 58 AFSS facilities affected. Id. ¶ 18. The EAP is available to retirees and separated employees for six months after separation. Id. III. PROCEDURAL POSTURE
On March 31, 2005, plaintiffs filed their original complaint in this action, and on June 24, 2005, plaintiffs filed a First Amended Complaint. Plaintiffs are 834 individual, named plaintiffs who claim to be currently employed by the FAA as Flight Service Specialists. They further allege that they are all over 40 years of age and are adversely affected by the FAA's decision to competitively source the Flight Service Specialist job function to the private sector. Plaintiffs claim that the FAA's decision to contract out the Flight Service Specialist job function to the private sector, pursuant to OMB Circular No. A-76, discriminated against them on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a. Plaintiffs assert both disparate treatment and disparate impact theories of liability under the ADEA.
On July 26, 2005, plaintiffs filed an Application for Preliminary Injunction, seeking to enjoin RIF, effective after October 3, 2005, of all Flight Service Specialists.
ARGUMENT I. LEGAL STANDARDS
A preliminary injunction is an extraordinary remedy and a drastic and unusual measure that "should be sparingly exercised." Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (internal quotation marks omitted); Marine Transport Lines, Inc. v. Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985). Preliminary injunctive relief should be limited to those situations where a party must act to maintain the status quo in order to prevent immediate and irreparable injury until the lawsuit can be determined on the merits. Sullivan v. Murphy, 478 F.2d 938, 964 (D.C. Cir. 1973). In the absence of irreparable injury, a preliminary injunction should be denied. See
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CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (where plaintiff "has made no showing of irreparable injury . . . [this] alone is sufficient for us to conclude that the district court did not abuse its discretion by rejecting" a request for injunctive relief).
A plaintiff seeking preliminary injunctive relief must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1208 (D.C. Cir. 1989). "In deciding whether to grant an injunction, the district court must balance the strengths of the requesting party's arguments in each of the four required areas." CityFed Financial Corp., 58 F.3d at 747. In this case, plaintiffs fail to meet any of these requirements.
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P. A motion to dismiss under Rule12(b) should be granted when "plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A court “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). While the complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts, see EEOC
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v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997), it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. See Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).
Finally, summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). The moving party will be entitled to judgment as a matter of law where the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. See Fed. R. Civ. P. 56(c)); Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). To defeat a summary judgment motion, "a plaintiff must have more than a scintilla of evidence to support [his] claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). II. PLAINTIFFS CANNOT ESTABLISH A CLAIM OF DISPARATE TREATMENT
UNDER THE ADEA. Defendants are entitled to judgment as a matter of law because plaintiffs cannot make out a prima facie case of age discrimination under the ADEA, nor can they sustain their burden of showing that the reasons advanced by the FAA for its actions are untrue or pretextual. Much of plaintiffs' disparate treatment argument rehashes arguments that plaintiffs previously made and lost before the agency. Plaintiffs’ attempt to misuse the ADEA to collaterally attack the agency's findings and decisions must be rejected. The Court should grant summary judgment in favor of defendants on plaintiffs' disparate treatment claim and deny plaintiffs' application for preliminary injunctive relief.
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A. Standards for Disparate Treatment Liability under the ADEA In a disparate treatment claim under the ADEA, liability depends on whether age "actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). A disparate treatment claim under the ADEA cannot succeed unless age "actually played a role in [the employer's decisionmaking process] and had a determinative influence on the outcome." Id. Proof of discriminatory motive is critical in a disparate treatment case. Id. at 609. “Congress' promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes." Id. at 610. Plaintiffs concede that there is no direct evidence that the FAA's challenged decision was based on age, so they rely on the McDonnell Douglas burden-shifting framework for presenting indirect evidence of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).10 Under that framework, to make out a prima facie case of intentional age discrimination, "a plaintiff must demonstrate facts sufficient to create a reasonable inference that age discrimination was ‘a determining factor' in the employment decision." Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C. Cir. 1982). A court is required to credit only reasonable inferences to be drawn of age discrimination, not any conceivable inference of age discrimination that a plaintiff proposes. Parker v. Federal Nat. Mortg. Ass’n, 741 F.2d 975, 980 (7th Cir. 1984). An inference of discrimination is created if the plaintiff shows that he or she (1) belongs to the statutorily protected age group (persons 40 or older), (2) was qualified for the position, (3) was
10 Although the McDonnell Douglas framework was developed for Title VII cases, it also applies to ADEA claims. See, e.g., O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996); Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C. Cir. 1982); Clifton v. Federal National Mortgage Assn., 36 F. Supp. 2d 20, 25 (D.D.C. 1999).
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If the plaintiff establishes a prima facie case, the defendant must come forward with a legitimate, nondiscriminatory reason for its actions. Finally, if the defendant meets its burden, the burden shifts back to the plaintiff to prove that the defendant's asserted legitimate reason is a mere pretext, and thus the defendant acted with discriminatory intent. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff on the basis of age remains with the plaintiff at all times. Koger, 98 F.3d at 634; Arnold v. U.S. Postal Service, 863 F.2d 994, 996 (D.C. Cir. 1988); Coburn, 711 F.2d at 342; Cuddy, 694 F.2d at 857.
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B. Plaintiffs' Prima Facie Case Fails Because There Are No Facts Sufficient to Create a Reasonable Inference of Age Discrimination
1. Plaintiffs' References to the Retirement Eligibility of the AFSS Workforce Do Not Raise a Reasonable Inference of Age Discrimination
The evidence to which plaintiffs point as giving rise to an inference of age discrimination does no such thing.11 First, plaintiffs claim that "the FAA has stated in no uncertain terms that it
took this action because the largely older FS Controllers are supposedly a retirement eligible
workforce[,]" citing to plaintiffs' Exhibits 50 and 51. See Pl. App. at 70. As set forth below, the
inference that plaintiffs draw from Exhibits 50 and 51 is entirely unwarranted and unreasonable.
Indeed, the facts before the Court show that the retirement eligibility of the AFSS workforce
played no role in the challenged decision. Moreover, even if the FAA did base its decision in
part on the retirement eligibility of the AFSS workforce – which the uncontroverted record shows
it did not – that would have been perfectly permissible under the ADEA and would not raise a
reasonable inference of age discrimination.
Plaintiffs' Exhibit 50 is a document that was authored by Joann Kansier, the Director of
FAA's Office of Competitive Sourcing. The Office of Competitive Sourcing ran the AFSS
11 Plaintiffs ignore entirely the fourth prong of the prima facie case. See Pl. App. at 70. They assert, correctly, that they do not need to show that their positions have been filled by someone outside their protected class, citing O’Connor, 517 U.S. at 312, but they ignore the different requirement, left intact by O’Connor, that they show that substantially younger, similarly-situated employees were treated more favorably. See id. at 313; Clifton, 36 F. Supp. 2d at 25. In cases that involve job eliminations, as opposed to job replacements, as does the instant case, this requirement looks at the employee most similarly situated to the plaintiff and examines the age disparity, if any, between the plaintiff and that “comparator” employee. Clifton, 36 F. Supp. 2d at 25. As plaintiffs acknowledge, the FAA has treated all Flight Service Specialists the same, regardless of age – they will all be RIF’ed as of Oct. 4, 2005. Plaintiffs vaguely allege that Flight Service Specialists are the “FAA’s oldest workforce, with 92 percent of the FS Controllers being 40 years of age or older, ” but they fail to identify the other workforces to which they are comparing themselves, they fail to validate the basis of comparison, and they do not establish that those other employees are similarly-situated to plaintiffs. Pl. App. at 72.
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public-private competition pursuant to OMB Circular No. A-76 after the agency decided to conduct it. The decision to subject the AFSS function to a public-private A-76 competition was made before the formation of the Office of Competitive Sourcing and before Ms. Kansier became involved with the competition. Kansier Decl. ¶ 3. Ms. Kansier wrote the text for the graphic on Exhibit 50 as part of her briefing materials for persons and organizations interested in the AFSS competition. Id. ¶¶ 18-20. The document thus was created after the decision to subject the AFSS function to a public-private A-76 competition was made. It is a public relations, briefing document, not a business analysis or justification for the agency's decision. Id.
Consistent with its promotional purpose, Exhibit 50 shows the internal and external influences that converged to create an opportunity for the agency to restructure and improve the AFSS function through the A-76 competition process. Id. ¶ 21. Ms. Kansier used the phrase "retirement eligible workforce" in this document to describe a benefit of the A-76 competition for many affected employees, and in this way to assuage the concerns of members of Congress and others about the potential adverse impact of the A-76 competition on the AFSS workforce. Id. Ms. Kansier's purpose in using this phrase in this graphic was to convey the fact that many of the employees to be affected by the outcome of an A-76 competition would be eligible to retire and therefore stand to collect a federal retirement annuity as well as a salary from a private company (and this is exactly what is happening under the terms of the Lockheed contract). Id. Ms. Kansier's intent was to convey the idea that a significant portion of the AFSS workforce would be eligible to receive a windfall as a result of the A-76 competition. Indeed, the other bullet points that appear in the same grouping as the phrase "retirement eligible workforce," on the right side of the graphic, are also ways in which the AFSSs would benefit from an A-76 competition.
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For example, workloads will be more evenly balanced, efficiencies will be achieved, and aging facilities and equipment will be modernized.12 See Ex. 50, to Pl. App.
The fact that a large percentage of the AFSS workforce was eligible to retire is a neutral
fact that does not raise an inference of age discrimination. An employer can have a range of
legitimate reasons for talking about and considering the retirement eligibility of its employees
which do not reflect the type of age-based stereotyping that the ADEA prohibits. See, e.g.,
Rowan v. Lockheed Martin Energy Systems, 360 F.3d 544, 548-49 (6th Cir. 2004) (statements
indicating that high percentage of most critical workers were reaching retirement eligibility were
motivated by perfectly legitimate concern about mass exit of highly skilled workers, not by a bias
against age); Barney v. White, 2001 WL 1776885 at * 9 (S.D. Ind. Dec. 11, 2001) (fact that
Army staff talked to employees affected by base closure about retirement eligibility, which was
important factor to many employees' individual decisions, falls well short of plaintiff's contention that Army staff believed that all employees who were eligible to retire should retire).13 Ms.
Kansier used the phrase "retirement eligible workforce" to show that many employees would
12 Federal guidelines authorize agencies conducting an RIF to survey employees eligible for retirement as a means of using voluntary retirement to lower employee complements and thereby reduce the number of employees affected by the RIF action. See Decker v. Dept. of Health & Human Services, 40 M.S.P.R. 119, 133 (M.S.P.B. 1989) (citing 5 U.S.C. § 8336(d) and Office of Personnel Management guidelines). These guidelines corroborate Ms. Kansier's explanation that she used the phrase "retirement eligible workforce" in Exhibit 50 to communicate the ameliorating effects that retirement eligibility has in connection with an RIF.
13 In the context of age discrimination, a word or phrase cannot be considered in the abstract, but rather it must be evaluated based on context. See, e.g., Hayman v. Nat’l Academy of Sciences, 23 F.3d 535, 539 (D.C. Cir. 1994) (speaker’s explanation of his use of the term “deterioration” with respect to plaintiff’s work performance shows use of term does not create reasonable inference of age discrimination); Mereish v. Walker, 359 F.3d 330, 337 (4th Cir. 2004) (finding no age animus when employer’s comments were placed in context; for example, “aging” referred to technological skills, not the actual ages of the terminated employees).
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benefit from the agency's decision to conduct an A-76 competition for AFSSs, not as code for a bias against age. Her uncontroverted explanation of the use of the phrase in Exhibit 50 forecloses the creation of a reasonable inference of age discrimination from the phrase.
Just because retirement eligibility correlates with age does not make it a prohibited topic of conversation or basis for an employment decision under the ADEA. The Supreme Court squarely held in Hazen Paper, 507 U.S. at 611-13, that an employer does not violate the ADEA by making an employment decision motivated by factors other than age, even if the motivating factor is correlated with age. Such a decision “would not be the result of an inaccurate and denigrating generalization about age” and “the attendant stigma would not ensue.” Id. at 612. Courts have specifically applied Hazen Paper to hold that employment decisions motivated by retirement eligibility do not constitute age discrimination. See, e.g., EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 952 (8th Cir. 1999); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995); Dilla v. West, 4 F. Supp. 2d 1130, 1142-43 (M.D. Ala. 1998). In Dilla, the court held – with respect to the same air traffic controller retirement scheme at issue in this case – that even where retirement eligibility directly correlates with age, it does not violate the ADEA for an employer to consider it so long such consideration is not based on inaccurate and stigmatizing age-based stereotypes.
In addition, Ms. Kansier, the author of the phrase "retirement eligible workforce" in Exhibit 50, was not the decisionmaker for the challenged agency action. Her function was to implement the AFSS A-76 competition. See Kansier Decl. ¶¶ 1, 3. She did not make the decision to include Flight Service Specialists on the FAIR Act inventory of commercial activities; she did not make the decision to subject the AFSS function to an A-76 competition; and she did not make the decision to award the AFSS contract to Lockheed. All of these
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decisions were made by other decisionmakers in the agency, and the decisions to list AFSS function as commercial and to run the AFSS A-76 competition were made prior to Ms. Kansier's involvement with the competition. Id. Thus, Ms. Kansier's reference to the "retirement eligible workforce," even if it had the discriminatory meaning that plaintiffs impute to it (which it does not), cannot form the basis of liability in this action. See EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 953 (8th Cir. 1999) (allegedly discriminatory remarks held too remote in time to be of probative value); May v. Shuttle, 129 F.3d 165, 173 (D.C. Cir. 1997) (no liability under ADEA where making of remarks was not involved in decision-making process); Hall v. Giant Food, Inc., 175 F.3d 1074, 1079-80 (D.C. Cir. 1979) (where person who made allegedly discriminatory remark was not involved in decisionmaking process, and where remark was made after challenged decision was made, remark was not probative of discriminatory intent).
As with Ms. Kansier's use of the phrase "retirement eligible workforce," Administrator Blakey's comment that almost 40% of flight service employees are eligible to retire does not raise a reasonable inference of age discrimination. See Exhibit 51 attached to Pl. App. As an initial matter, plaintiffs mischaracterize the Administrator's comments. She did not discuss "three dilemmas" that the AFSS competition was aimed at solving – "operation costs, aging facilities/equipment, and the retirement eligible workforce." See Pl. App. at 47-48. Plaintiffs seriously distort the Administrator's remarks, as their own transcript of those remarks shows. The Administrator said:
Each time one of our specialists picks up the phone, it costs the taxpayer an average of $25. Nationwide the bill comes to over a half billion dollars a year, a number that includes salaries for about 2,700 employees. We also know that most of our automated flight service stations are in major need of repair. Almost 40 percent of flight service employees, they're eligible to retire. So here's the dilemma: how can we save money and upgrade our equipment and our service to you at the same time?
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Exhibit 51 attached to Pl. App. Nor did Administrator Blakely equate the retirement eligibility of the AFSS workforce
with one that needs to be "upgraded" or "repaired." Declaration of Marion C. Blakey (“Blakey Decl.”) at ¶¶ 2-3, attached hereto as Exhibit CC. The text on its face shows that she used these words to describe the equipment and physical plant of AFSS facilities and the technology used to provide AFSS services, not the people who work at AFSSs. Id.; see also Exhibit 51 attached to Pl. App. Her reference to the 40% of AFSS employees eligible to retire was intended solely to address concerns about the impact on the AFSS workforce of a potential outsourcing of the function to a private entity, just as was Ms. Kansier's reference to the retirement eligibility of the workforce. Blakey Decl. ¶ 4. The Administrator was voicing a concern for her employees, not a discriminatory animus against them. The retirement eligibility of the workforce did not play a role in the decision she made regarding the AFSSs, and plaintiffs have not introduced a scintilla of evidence to the contrary. Blakey Decl. ¶ 5. Moreover, the existing workforce was to be retained under any possible outcome of the A-76 competition.
2. Neither the FAA's Air Traffic Controller Workforce Plan, Nor the FAA's Implementation of That Plan, Raise a Reasonable Inference of Age Discrimination
Nor does the FAA's Air Traffic Controller Workforce Plan, or the agency's implementation of that plan, create a reasonable inference of age discrimination.14 See Pl. App. at 71-72 (citing plaintiffs' Exhibit 14 at 3-4). Plaintiffs' claim that the phrases "workforce flexibility" and "enhanced productivity" in the Controller Workforce Plan are "stereotypical
14 The FAA’s Controller Workforce Plan is a comprehensive human capital workforce strategy to determine the most effective method for addressing the need for more Terminal and En Route Controllers due to the anticipated retirement of a large portion of that workforce. It was mandated by Congress. See Reyna Decl. ¶ 7.
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remarks that are often associated with younger employees" is meritless. Their case citations for this proposition have nothing to do with the use of these terms. See Pl. App. at 71-72 (citing Machinchick v. PB Power, Inc., 398 F.3d 345, 353 (5th Cir. 2005) (making general observation that age stereotyping remarks may give rise to inference of age discrimination) & Threadgill v. Spellings, 377 F. Supp. 2d 158, *6-7 (D.D.C. July 15, 2005) (analyzing term "new blood")). There is nothing illicit in the use of such generic, business terminology as "flexibility" and "productivity" in a human resources workforce plan. See Carroll v. Lujan, 1992 WL 26024 at * 5 (D.D.C. Jan. 31, 1992) (rejecting plaintiff’s argument “that the defendant’s criterion of ‘flexibility’ in making the selection is in reality a code word for age discrimination”). It is wholly unreasonable to read any age-based animus into these terms, in isolation or in the context in which they are used in the document, which is as follows:
FAA controllers now staff some 315 federally operated facilities throughout the country, ranging from small towers to large air traffic control centers. They guide aircraft that use 600 commercial airports and 3,300 smaller public-use airports. Since America's aviation system continues to expand, there's no question that we need to provide an adequate number of air traffic controllers to make it flow smoothly. But it's not a simple case of hiring to fill a slot. The plan contemplates new ways to make the best use of the taxpayer's investment. Each of the efforts described in this plan provides workforce flexibility, enhanced productivity and greater efficiency. Our current workforce will also benefit from greater job advancement opportunities, flexible work schedules, and better training. Exhibit 14 at 4, attached to Pl. App. (emphasis added). Moreover, the Controller Workforce Plan is separate from, and unrelated to, the agency's decision to outsource the AFSS function. The Controller Workforce Plan relates only to the terminal and en route controller workforces, not to the Flight Service Station workforce. See Reyna Decl. ¶ 7. There is simply no nexus between the terms "workforce flexibility" and
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"enhanced productivity," as used in the Controller Workforce Plan, and the challenged agency decision.
Nor does the fact that the FAA has not looked exclusively to the Flight Service Specialist pool to fill the demand for Terminal and En Route controllers raise a reasonable inference of age discrimination. Plaintiffs criticize the FAA for hiring "new, younger students [for controller jobs] rather than older, experienced FS controllers . . . ." See Pl. App. at 72. However, for a variety of reasons, the FAA cannot simply import the Flight Service workforce en masse into the terminal and en route controller workforce. Reyna Decl. ¶¶ 8-14. All Flight Service Specialists are not qualified for all terminal and en route controller positions in which the controller separates and controls air traffic. Id. ¶ 6. While the Flight Service Specialist has experience providing weather, flight planning, and other services to pilots, their experience is not directly transferable to terminal and en route controller positions, which require specialized skills that Flight Service Specialists, for the most part, lack. Id. Flight Service Specialists cannot move into positions as terminal or en route controllers without extensive training and certification. (Reyna Decl.). However, new hires for controller jobs who need training must be brought onboard consistent with training classroom availability and availability of on-the-job training resources. Id. ¶¶ 6-8. These facts, along with other logistic hiring issues, constrained the FAA's ability to reserve all controller jobs for displaced Flight Service Specialists. Id. ¶¶ 8-14.
The FAA did reserve approximately 120 terminal controller positions for displaced Flight Service Specialists, through the Preferred Placement Program.15 Id. ¶ 7. These positions were in
15 In addition to these reserved positions, Flight Service Specialists could apply for any other terminal or en route controller vacancy, any vacancy within the Air Traffic Organization, or any vacancy within the FAA, and were given priority consideration under the preferred placement programs established to assist them. Reyna Decl. ¶¶ 8-14.
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level 6, 7 and 8 terminal towers, which fit best with Flight Service Specialists' experience. Id. ¶ 10. Budget constraints, not age discrimination, capped the number of positions that could be made available to the displaced Specialists, because they earn more than new hires. Id. ¶ 7. And to the extent that the FAA has hired new controllers who are younger than plaintiffs, that is an inescapable function of the fact that there is a maximum age requirement of 30 for all new hires for controller positions involving the active separation and control of air traffic, not a function of age discrimination. See 5 U.S.C. § 3307(b); DOT DPM Letter No. 338-4, Maximum Entry Age for Air Traffic Controllers (Mar. 14, 2000).16
3. Plaintiffs Have Presented No Statistical Evidence to Make a Prima Facie Showing of Disparate Treatment
In support of their disparate treatment claim, plaintiffs allege that the FAA discriminated against them on the basis of their age because "[a]pproximately 92 percent of Flight Service [Specialists] are federal employees over the age of 40" and because "the Flight Service [Specialist] workforce is older than other FAA workforces not contracted out." See Pl. App. at 14-15, 72. Accepting these statements as true for purposes of this motion only, they are insufficient to establish a prima facie case of disparate treatment.
Proof of disparate treatment requires a showing that the employer treats some people less favorably than others because of their age. See Hazen Paper, 507 U.S. at 609; Evans v. Atwood,
16 The FAA has no obligation under the ADEA to place displaced Flight Service Specialists over the age of 40 in other FAA jobs. Stacey v. Allied Stores Corp., 768 F.2d 402, 408 (D.C. Cir. 1985). Plaintiffs have not asserted in the instant case a refusal-to-hire ADEA claim alleging that they have not been hired for air traffic controller jobs because of their age; their claim is that their positions are being eliminated, and they are being terminated because of age. See First Am. Compl. at ¶¶ 49-50. Nor have plaintiffs submitted proof that would meet the elements of a refusal-to-hire ADEA claim, such as individualized proof that plaintiffs applied for controller jobs, were qualified for those jobs, were rejected from those jobs, and were disadvantaged in favor of younger persons with respect to those jobs.
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38 F. Supp. 2d 25, 29 (D.D.C. 1999). Statistical evidence may be offered as part of the evidentiary showing to establish a prima facie case of disparate treatment. See Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987); Lu v. Woods, 717 F. Supp. 886, 890 n.16 (D.D.C. 1989).
Here, the allegation that 92% of AFSSs are over 40 years of age or that AFSSs are the oldest workforce at the FAA has no relevance to the disparate treatment inquiry. To begin with, the allegation is overly simplistic and unsubstantiated. Even if true, plaintiffs' allegation has no probative value because the average age of the federal workforce is approximately 46 years. See President's Management Agenda at 11 (Ex. N). In addition, plaintiffs' allegations have no relevance to the issue of disparate treatment because virtually all of the positions at AFSSs will be eliminated, in terms of the government’s employment of them, through the RIF. Thus, plaintiffs cannot demonstrate that the FAA treated older Flight Service Specialists any differently from younger Flight Service Specialists on the basis of age. Because the FAA treated everyone the same by eliminating the job function altogether, plaintiffs cannot proceed on a disparate treatment theory. See, e.g., Mereish, 359 F.3d at 338 (finding no age discrimination where an entire department was eliminated through a position-wide RIF); Leichihman v. Pickwick Int'l, 814 F.2d 1263, 1270 (8th Cir. 1987) ("In a reduction-in-force case, there is no adverse inference to be drawn from an employee's discharge if his position and duties are completely eliminated . . . ."); Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1075 (9th Cir. 1986) ("Without the demonstration of a need for the same services and skills that [plaintiff] possessed, the conceptual underpinnings of McDonnell Douglas crumble.") (italics in original).
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4. Plaintiffs' Claim That the FAA Deviated from Established Policy and Practice in its Decisions about the Flight Service Function Is Baseless and Does Not Raise a Reasonable Inference of Age Discrimination
Plaintiffs' claim that the FAA deviated from its established policies and practices in deciding to outsource the Flight Service function, and that this raises a reasonable inference that this decision was based on age, is unfounded. (Pl. App. at 73-76). Plaintiffs argue that the FAA acted arbitrarily and contrary to its own practices when it designated AFSS functions as commercial, when it decided to conduct a feasibility study on conducting an A-76 competition on AFSS functions, and when it assessed the A-76 bids. These arguments amount to an impermissible collateral attack on administrative decisions, for a variety of reasons set forth in section III infra.
In any event, these arguments fail on the merits. The FAA's decision that most of the activities performed by Flight Service Specialists are commercial, not inherently governmental, was a sound application of the FAIR Act, OMB Circular No. A-76, and other OMB guidance, as the FAA and DOT explained in rejecting plaintiffs' union's administrative challenge to this decision. (See Memo from Steven J. Brown to CFO at 1 (April 9, 2003); FAA response to NAATS's FAIR Act challenge (April 10, 2003); DOT letter to NAATS President Walter Pike (May 9, 2003)). Plaintiffs' argument that their function is inherently governmental because Flight Service Specialists significantly impact on the life and property of private citizens misconstrues the FAIR Act, OMB Circular No. A-76, and other OMB guidance. The defining feature of an inherently governmental function is not that it is important or that it affects peoples’ lives; commercial entities perform many such functions every day under contract with the government. Rather, it is that the activity involves the act of governing, or the exercise of discretion in applying Federal Government authority. FAIR Act, § 5(2)(B); OMB Circular No. A-76 (Revised
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1999) at ¶ 6(e); OFPP Policy Letter 92-1 at ¶ 5. Thus, an inherently governmental function is not any activity that significantly affects the life or property of private citizens, but only those activities involving "the interpretation and execution of the laws of the United States" to significantly affect the life, liberty, or property of private persons. FAIR Act, § 5(2)(B). See also plaintiffs' Ex. 13 at 2. Flight Service Specialists do not perform inherently governmental activities because "[w]hile Flight Service Specialists perform activities that include the use of professional judgment and expertise, they do not have the authority to provide that advice outside of a myraid of FAA regulations, policy and procedures with respect to how air traffic control services are to be performed. Thus, they do not exercise discretion in applying Federal Government authority in the manner contemplated by the FAIR Act." (DOT letter to NAATS President Walter Pike at 7 (May 9, 2003)). Even terminal and en route controllers, who are responsible for separating and controlling air traffic, do not perform inherently governmental functions. See Memo from Administrator Blakey to Air Traffic Terminal and Center Employees (Dec. 19, 2002); Reyna Decl. ¶ 11 (discussing Contract Tower Program).17
Nor did the FAA deviate from established policies and practices by changing its treatment of AFSS function on its 2000-2002 FAIR Act inventories. See Pl. App. at 73-74. While the FAA had listed some AFSS full-time equivalent positions as performing commercial activities in its 2000 and 2001 inventories, that number significantly increased in 2002 as a result of the agency's decision to identify the activities performed by most Flight Service Specialists as commercial. Hennigan Decl. ¶ 6. That decision was based on the reasonable determination that
17 Flight Service Specialists are clearly not involved in the “regulation of the use of space, oceans, navigable rivers and other natural resources.” OMB Circular No. A-76 (Revised 1999) at ¶ 6(e)(1) (emphasis added). See Pl. App. at 73. They provide services to pilots in accordance with policies, procedures and regulations; they do not fashion those regulations.
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these functions were commercial not inherently governmental, and the functional analysis prepared by Grant Thornton in its feasibility study, which FAA subject matter experts validated. See April 9, 2003 Steven Brown Memo at 1 (Ex. S). In short, the agency had sound, legitimate reasons for adding certain Specialist activities to its 2002 FAIR Act inventory, and its doing so does not constitute an unjustified departure from normal practice. See Pl. App. at 75-76.18
Plaintiffs' complaint about the FAA's decision to hire Grant Thornton to conduct a feasibility study to help the FAA determine whether to initiate an A-76 competition for the Flight Service function is that it was a "precipitous, unverified" study and that "it targeted Flight Services for the mass RIF and job eliminations instead of completing a thorough agency-wide assessment of its various services to identify all of the areas of its operations that were suitable for private bidding." Pl. App. at 74-75. Contrary to plaintiffs’ assertions, the feasibility study, which was not required, demonstrates the FAA’s thorough and conscientious approach to the decision as to whether to conduct an A-76 competition on the Flight Service function. The numerous reports and studies recommending fundamental change within Flight Services more than adequately justified the agency's decision to engage Grant Thornton to do a feasibility study regarding Flight Services. Hennigan Decl. ¶¶ 10-14. Those reports and studies revealed Flight Service to be an obvious candidate for a competitive sourcing competition to determine how to more efficiently and effectively provide the service. There was no reason to doubt the conclusions of Grant Thornton, and plaintiffs provide no such reason here. In fact, much of what Grant Thornton concluded was independently supported by the numerous internal and external
18 The FAA exempted the Flight Service Station function in Alaska from the AFSS competitive sourcing study based on the unique nature and requirements of aviation in Alaska. See Memo from Chris Bertram to Acting Administrator (Aug. 21, 2002) (Ex. R).
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studies on Flight Service Stations, and it is well known that private companies and the major air carriers provide services similar to Flight Services. Sheridan Decl. ¶ 12. In addition, FAA subject matter experts, both in headquarters and in the field, did validate Grant Thornton's functional analysis. See April 9, 2003 Steven Brown Memo at 1 (Ex. S).
Regarding plaintiffs' assertion that the FAA should have done an “agency-wide assessment of its various services to identify all of the areas of its operations that were suitable for private bidding,” the FAA did conduct an agency-wide assessment of employee functions to determine which activities are commercial and which commercial activities should be subject to a cost comparison. That is what the FAIR Act directs agencies to do every year, and that assessment resulted in the FAA's FAIR Act inventory. The FAA did not deviate from this practice, it complied with it. There is no requirement or standard practice that the agency conduct a feasibility study on any function in carrying out its FAIR Act obligations, and plaintiffs have cited to none. The agency's decision to conduct one on Flight Service was rational and well within its management discretion.
Finally, Judge Neill addressed and rejected the specific ways in which plaintiffs claim that the FAA prejudicially assessed the A-76 bids. See section III.B.2, infra. He did so in a thorough, 99-page opinion in which he applied expertise in government contracting law to the issues raised. This Court lacks jurisdiction to revisit those issues here. Id.
5. Plaintiffs' Claim That the Challenged Agency Action Was Intended to Reduce the Number of Older Flight Service Specialists Who Accept Employment with Lockheed Is Equally Baseless
Plaintiffs' assertion that "the FAA believes that its plan will significantly reduce the number of older, over-40 FS [Flight Service] Controllers" who ultimately go to work for Lockheed is nothing short of preposterous. Pl. App. at 76. The mere fact that the contract with
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Lockheed requires some employees to relocate has no bearing on the FAA's intentions with respect to Flight Service Specialists over 40. It was universally recognized and accepted – including by plaintiffs – that a major consolidation of AFSSs was going to take place. The plan that plaintiffs themselves put forth as part of the MEO proposed a much more substantial consolidation of facilities than the Lockheed plan and would have required more extensive relocation of the workforce. See Pl. App. at 88-89; Courain Decl. ¶ 21. Moreover, the FAA's contract with Lockheed requires Lockheed to offer jobs to any and all Flight Service Specialists who want them. In fact, the deal benefits the older Flight Service employees the most, in that those who are eligible for retirement can double-dip by collecting a federal annuity and a Lockheed paycheck, and can keep working longer than they could if they remained FAA employees subject to mandatory retirement. The Lockheed contract provides those eligible to retire with every incentive to relocate, take jobs with Lockheed, and obtain a significant financial gain.19 While the contract does not require Lockheed to provide Flight Service employees with a lifetime guarantee of employment, this aspect of the contract applies to all Flight Service employees regardless of age, and does nothing to establish that the FAA "made discriminatory assumptions and acted on those assumptions" in structuring the Lockheed contract. Pl. App. at 76.
19 Plaintiffs’ citation to the December, 2001 OIG report is disingenuous. Pl. App. at 76 (citing plaintiffs’ Ex. 11 at 10). The OIG opined that it was unlikely that many Flight Service Specialists who were eligible to retire would chose to relocate in an agency consolidation of AFSSs, and that therefore the OIG was using a low estimate of relocation costs in its consolidation analysis. However, this assumption about the choice a retirement-eligible Specialist would make when faced with relocation is predicated on a very different set of benefits than retirement-eligible Flight Service Specialists stand to receive under the Lockheed contract. The Lockheed contract allows retirement-eligible Specialists who choose to work for Lockheed to obtain a financial gain for years to come, as well as other benefits, whereas relocating to maintain the Specialist’s existing government job does not.
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6. Plaintiffs' Argument That the FAA Rejected Equally Effective, Nondiscriminatory Alternatives Cannot Raise a Reasonable Inference of Age Discrimination
Plaintiffs' argument that an inference of discrimination is raised by the FAA's rejection of equally effective, nondiscriminatory alternatives is meritless. Pl. App. at 77. The alternatives to which plaintiffs refer all involved some level of consolidation of AFSSs and projected savings. Under plaintiffs’ own theory, downsizing the AFSS function through a consolidation strategy in which the employees remain government employees would not be any less "discriminatory" than downsizing the AFSS function by contracting the service out to a private entity who in turn consolidates it. According to plaintiffs' theory of the case (which defendants of course dispute), the Flight Service function would still have been "targeted" for such downsizing because of age. Even assuming arguendo that plaintiffs may have been less adversely affected under the alternatives they point to, they would still have been selected for one of the consolidation alternatives based on age (according to their theory), and the chosen alternative still would have had a disparate impact on them as a workforce (again according to plaintiffs' theory). Plaintiffs' argument thus fails because the alternatives they propose are not in fact less “discriminatory” alternatives.
* * * * * There is no evidence to create a reasonable inference of age discrimination in this case. Plaintiffs' prima facie case thus fails. The Court should deny plaintiffs' application for preliminary injunction with respect to plaintiffs' disparate treatment ADEA claim and grant summary judgment to defendants on that claim.
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C. The FAA Had Legitimate, Nondiscriminatory Reasons for Competitively Sourcing the Flight Service Function
Even if the Court were to find that plaintiffs have met their burden of establishing a prima facie case of age discrimination, there can be no serious question that the FAA had legitimate, nondiscriminatory reasons for subjecting the Flight Service function to an A-76 competition to determine the most efficient way of providing the service, for awarding a contract to Lockheed as the result of that competition, and for initiating an RIF in conjunction with that contract. The FAA's decisions with respect to the Flight Service function were justified on both a micro and a macro level, in terms of finding a solution to the well-documented need to reform Flight Services, responding to agency budgetary constraints, and complying with the Administration's directive to conduct cost comparisons for a certain percentage of the workforce.
1. The FAA Chose the Flight Service Function for an A-76 Competition Because of the Well-Documented Finding That Flight Services Could Be Performed More Efficiently and at a Lower Cost
By the time the FAA selected Flight Services for an A-76 competition, it was an uncontroverted fact that there was an opportunity to substantially reduce the high cost of the Flight Service operation and improve the Flight Service product. The FAA was spending approximately half a billion dollars a year for Flight Services. Each time a Flight Service Specialist picked up the phone to provide service, it cost the taxpayer an average of $25. Moreover, the FAA was becoming increasingly unable to afford the high cost of this service as Aviation Trust funds shrank in response to the airline industry's post-September 11, 2001 financial distress. See Blakey AOPA Prepared Remarks (Ex. D).
Study after study had recommended consolidation of the 61 AFSSs as a way to save money, based on the decreasing demand for the services provided by AFSSs, technological
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efficiencies, and a widespread recognition that 61 AFSSs were too many. During the 1995-98 timeframe, a series of internal FAA working study groups determined that 61 AFSSs were not required to meet user demand and efficiently provide flight services. See Flight Service Architecture Core Group Report, at Executive Summary & ¶ 1.3 (Ex. M).
In December, 1996, DOT's Inspector General specifically identified Flight Services as a candidate for some level of commercialization or privatization. The OIG issued an audit report in which he concurred in the consolidation of AFSSs as a "first step" in the process of determining the most cost-effective manner of provided flight services. See 1996 OIG Report at 4 (Ex. L). The introduction to the report noted the public demand for reinventing government to make it more businesslike and better managed. Id. at 2, citing Vice President Gore's Third Report of the National Performance Review, "Common Sense Government: Works Better and Costs Less". "Reinvention must consider a wide range of options, including the consolidation, restructuring or reengineering of activities, and privatization options." Id. The OIG presented the case for comprehensive analysis and reform of Flight Services by documenting operating and cost inefficiencies in the agency's provision of Flight Services. The OIG further criticized the agency's analysis for its procurement of a new automation system (the OASIS system), in that the FAA did not analyze the alternative of the private sector providing the full range of flight services. Id. at 8-9. He then made a persuasive case for some form of commercialization of flight service functions, noting the success of the FAA's Contract Tower program, the private sector's interest in providing flight services, the technological feasibility of the private sector providing flight services, and the cost savings to be realized from the private sector providing flight services. Id. at 8-10. The OIG concluded by recommending that the FAA complete an extensive evaluation of the private sector providing the full range of flight services. Id. at 10.
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A second report by DOT's OIG, issued in December, 2001, again concurred in consolidation of AFSSs as a way to achieve significant cost reductions without compromising safety or security. See Dec. 2001 OIG report (Ex. 11 to Pl. App.). The declining demand for AFSS services, increasing demand for these services to be provided on-line, improved technology, and savings to be achieved are all cited in support of consolidation. Plaintiffs' union, the NAATS, also proposed significant consolidation of AFSSs to achieve cost savings. See Pl. App. at 77.
Based in part on these studies and recommendations, and against the backdrop of the agency's increasing inability to afford the costly Flight Service operation, the FAA decided to subject Flight Services to an A-76 public-private competition. Hennigan Decl. ¶ 16. The purpose of such a competition is to determine whether the private sector can provide a product or service that the government currently provides in a more cost effective manner. See President’s Management Agenda at 17-18 (Ex. N); Blakey AOPA Prepared Remarks, at 2 (Ex. D). An A-76 competition was an appropriate, obvious tool for the FAA to use in deciding how to provide the best Flight Service product to the public at the least cost to the taxpayer. Neither the age nor the retirement eligibility of the AFSS workforce played any role in the FAA's decision to subject Flight Services to an A-76 competition. Hennigan Decl. ¶ 23.
It is well established that reducing costs and improving efficiency are legitimate nondiscriminatory reasons for an employer's action in an ADEA case. See, e.g., May, 129 F.3d at 173 (outsourcing entire department to save money was a legitimate nondiscriminatory reason for furloughs); Armendariz, 58 F.3d at 150-51 (defendant had legitimate nondiscriminatory reasons for discharging employee pursuant to decision to achieve cost savings by outsourcing employee's sales territory to independent broker service); Woroski v. Nashua Corp., 31 F.3d 105,
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109 (2d Cir. 1994) (defendant had legitimate nondiscriminatory reasons for employment action taken in course of downsizing to improve profitability); Coburn, 711 F.2d at 343 (defendant had legitimate nondiscriminatory reasons for terminating employee pursuant to RIF instituted to reduce surplus management personnel in effort to cut costs); Nelson v. Long Lines Ltd., 335 F. Supp. 2d 944, 963 (D. Iowa 2004) (elimination of positions during RIF in order to improve efficiency justified by legitimate nondiscriminatory reasons). The desire to reduce the cost of providing the Flight Service function and improve the Flight Service product were legitimate nondiscriminatory reasons for the FAA's decision to conduct an A-76 competition for the Flight Service function.
2. The FAA's Decision to Conduct an A-76 Competition for Flight Services Was Based on the Determination That it Was Feasible to Successfully Compete the Flight Service Function
In 2002, the FAA proposed the Flight Service function for competitive sourcing primarily as a result of the conclusions reached in the 1996 and 2001 OIG reports. See Grant Thornton July 2002 feasibility study at 1 (Ex. Q). The FAA then engaged a consultant, Grant Thornton, to study the feasibility of successfully competing Flight Service activities with the private sector under an A-76 competition. Grant Thornton analyzed the private sector's willingness and ability to perform the various Flight Service activities, as well as any security, mission accomplishment, and personnel constraints on the private sector's performance of these activities. Grant Thornton concluded that most Flight Services activities were commercial in nature and could in fact be successfully competed with the private sector. Grant Thornton's conclusions were consistent with the success of the FAA's Contract Tower program, in which the FAA contracts with private companies to staff air traffic control towers at smaller airports, as well as with the findings of the
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OIG regarding the interest and capability of the private sector to perform the service. See 1996 OIG Report at 9 (Ex. L).
The determination that Flight Service could in fact be successfully competed with the private sector was an important part of the agency's decision to conduct such a competition, and was a legitimate nondiscriminatory reason for that decision. Hennigan Decl. ¶ 16.
3. The FAA Subjected Flight Services to an A-76 Competition in Compliance with the Administration's Competitive Sourcing Initiative
The business need to reduce costs and improve efficiency within Flight Services dovetailed with the FAA's need to comply with the Administration's directive that it subject a certain percentage of its workforce to cost comparisons under OMB Circular No. A-76. The need to comply with the Administration's competitive sourcing initiative was clearly a driving force behind the agency's decision to run the AFSS A-76 competition when it did. See Memo from Chris Bertram to Acting Administrator (Aug. 21, 2002); Hennigan Decl. ¶¶ 9, 16; Grant Thornton Feasibility Study at 1 (Ex. Q). Compliance with such a government-wide, neutral directive from the White House is surely a legitimate nondiscriminatory reason for the FAA's action. See Evans, 38 F. Supp. 2d at 33 (holding that compliance with Clinton Administration's effort to "right-size" the government was legitimate nondiscriminatory reason for agency RIF).
4. The FAA Awarded the Contract to Lockheed Because its Bid Provided the Best Value to the Government
As Judge Neill concluded in his lengthy opinion rejecting plaintiffs' contest to the Flight Services contract decision, the FAA awarded the Flight Services contract to Lockheed because its bid offered the best value to the government. Neither the age nor the retirement eligibility of the AFSS workforce played any role in the selection of Lockheed. DeGaetano Decl. ¶ 8. The
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contract award to Lockheed, and the resulting RIF to implement the contract award, were therefore based on legitimate nondiscriminatory reasons.
Defendants have met their burden of articulating legitimate, nondiscriminatory reasons for the challenged action. The burden therefore shifts back to plaintiffs to discredit the FAA's explanation. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998); Evans, 38 F. Supp. 2d at 33.
D. Plaintiffs' Arguments That the FAA's Legitimate Nondiscriminatory Reasons Are Pretextual Are Meritless
Plaintiffs' arguments that the FAA's legitimate nondiscriminatory reasons "are neither legitimate nor the real reasons [for its action], and are a pretext for discrimination" are redundant of their prima facie "evidence" of an inference of age discrimination. See Pl. App. at 80-93. For instance, plaintiffs again claim that the FAA's decision was based on the retirement eligibility of the workforce and that this suggests age discrimination; plaintiffs again challenge the FAA's designation of Flight Service Specialist activities as commercial activities; plaintiffs again complain about alleged improprieties in the bid process and bid evaluation process, such as the FAA's risk assessment and cost-savings estimates; and plaintiffs again criticize the FAA for not adopting supposed "nondiscriminatory" alternative proposals, including their own. The Court should reject these arguments for all of the reasons already stated above. We will not reiterate those reasons here, but will instead focus on the few new points raised in this section of plaintiffs' brief.20
20 Plaintiffs' first argument that the FAA's legitimate nondiscriminatory reasons for its action are pretextual consists of a challenge to a nonreason for the decision – the retirement eligibility of the AFSS workforce – and can be dismissed on this ground alone. See Pl. App. at 80-84. As demonstrated above, neither the age of the workforce, nor the high percentage of AFSS employees eligible to retire, was a factor in any aspect of the challenged decision. The
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Plaintiffs claim that the FAA cannot rely on the requirements of the Administration's competitive sourcing initiative as a reason for its action because the Administration did not require the FAA to choose Flight Services for an A-76 competition. Pl. App. at 84-85. That is true, but irrelevant. The Administration did require the FAA to take OMB Circular No. A-76 seriously and to complete competitions on 15% of commercial activities by 2003. This requirement was a driving force behind the FAA's decision to conduct the AFSS A-76 competition. The mere fact that the FAA was not required to select Flight Services in particular for an A-76 competition does not negate the fact that its selection of Flight Services for an A-76 competition was motivated by the need to comply with the Administration's competitive sourcing initiative.
Plaintiffs claim that the FAA's reliance on OIG reports and "unnamed" FAA studies to support its decision to subject Flight Services to competition is pretextual because those studies and reports only recommended consolidation, and only consolidation accomplished through attrition, not the competitive sourcing of the function to a private entity, and because the FAA failed to implement the recommendations contained in those studies and reports. This argument, however, ignores the 1996 OIG report, which forcefully argued that the agency should study the option of commercializing or privatizing the full range of Flight Services, and which was a primary reason why the FAA proposed Flight Services for competitive sourcing. See Grant Thornton Feasibility Study at 1 (Ex. Q); see also Hennigan Decl. ¶¶ 11, 14, 16. It also ignores the fact that the FAA is implementing the recommendation of consolidation of AFSSs through
agency's reasons for the decision are clearly set forth in the documents and declarations cited above. Plaintiffs' reliance on Exhibit 50 to establish that the retirement eligibility of the workforce was a reason for the decision is unfounded, as the exhibit itself and the declaration of its author establish. (Kansier Decl. ¶¶ 18-22; see section II(A)(1), supra).
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the Lockheed contract – such consolidation is in fact a key element of Lockheed's plan for taking over the function and achieving cost savings. The FAA's decision to implement consolidation through Lockheed's proposal, not through the MEO proposal, has been affirmed by Judge Neill and is not reviewable by this Court. See section III.A infra.21 The fact that the FAA did not implement consolidation immediately after it was recommended by various groups does not impugn the FAA’s motives or timing. There are obviously many legitimate factors that influence an agency's decision to implement massive reform on the scale of the AFSS competition, including the competitive sourcing requirements in the President’s Management Agenda. Finally, plaintiffs' argument that the FAA studies upon which it relies are "unnamed" is contradicted by plaintiffs own brief, which cites three FAA studies, by name, on the very page after plaintiffs make their claim that the studies are unnamed. Pl. App. at 87-88. These were studies of FAA's Flight Service working groups which recommended consolidation of AFSSs to more efficiently meet user demand.
E. Plaintiffs Have Failed to Satisfy the Requirements for a Mixed Motive Claim, and the Evidence Supports a Same-Decision Affirmative Defense
Plaintiffs' reliance on a mixed motive claim, see Pl. App. at 93-97, is misplaced because they fail to prove the claim and because the FAA has established an affirmative defense on the record showing that it would have reached the same decision irrespective of age.
21 Plaintiffs’ argument that the FAA could have achieved upgrades to AFSS facilities and equipment, cured workload imbalances, and obtained efficiencies by accepting their own proposal is another variant of their collateral attack on the agency’s selection of Lockheed’s proposal. Pl. App. at 88-93.
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1. Plaintiffs' Fail to Establish That Age Played Any Part in the Decisions Which They Challenge
Mixed motive analysis relates to the evidentiary burdens of the plaintiff and the defendant when an employer relies on both permissible and impermissible considerations in taking an adverse employment action. The doctrine relates only to a disparate treatment claim, because motive is an element of that claim (whereas motive is not at issue in a disparate impact claim). The doctrine holds that "when a plaintiff . . . proves that [a protected status] played a motivating part in an employment decision, the defendant may avoid a finding of liability . . . by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's [protected status] into account." Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).22 The plaintiff has the threshold burden, and that burden is the burden of proof (i.e., by a preponderance of the evidence). See id. at 246, 251; McDonnell Douglas , 411 U.S. at 80204.. "[T]he plaintiff retains the burden of persuasion on the issue whether [a protected status] played a part in the employment decision. . . ." Id. at 246.
Plaintiffs' reliance on this doctrine fails at the outset because there is no evidence that age played any part in the agency decisions which they challenge. Plaintiffs rely entirely on two documents – Exhibits 50 and 51 – to support their claim that age played a motivating part in the fundamental decision they challenge, i.e., the decision to subject their job functions to an A-76 competition. See Pl. App. at 95-96. No recognized measure of the weight of evidence could support plaintiffs' implication that the off-hand comments in Exhibits 50 and 51 could carry
22 The reasoning of the Court hinged on language in Title VII. Price Waterhouse, 490 U.S. at 241. We assume arguendo for purposes of mixed motive analysis in this brief only that the principles enunciated apply here, but note that the terms of the federal employment and the private sector provisions are different. Compare 49 U.S.C. § 2000e-16(a) with id. § 2000e-2(a).
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plaintiffs' burden of proof in the face of the documented legitimate non-discriminatory reasons for the decision to subject the AFSS function to a public-private A-76 competition.23 As demonstrated above, see section II.A.1 supra, the references to the retirement eligibility of the workforce in Exhibits 50 and 51 were made after the decision to conduct the AFSS A-76 competition was made, were not references to the agency's reasons or motivations for this decision, and were not, in any event, a reference to age.24 Plaintiffs have failed to adduce any evidence that age was considered at the time of the decision which lies at the core of their complaint. See Price Waterhouse, 490 U.S. at 241 ("[t]he critical inquiry . . . is whether gender was a factor in the employment decision at the moment it was made") (emphasis in original); see id. at 250 (the inquiry relates to the reasons for the action "at the moment of the decision").25
23 Under the most commonly accepted interpretation of Price Waterhouse, see Desert Palace, Inc. v. Costa, 539 U.S. at 95 (citing cases), “the evidentiary rule . . . developed to shift the burden of persuasion in mixed-motive cases [is] appropriately applied only where a disparate treatment plaintiff ‘demonstrated by direct evidence that an illegitimate factor played a substantial role’ in an adverse employment decision.” Id. at 102 (O'Connor, J., concurring), quoting Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring).
24 “[S]tray remarks in the workplace, while perhaps probative of [a discriminatory animus], cannot justify requiring the employer to prove that its [employment] decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard . . . . What is required is ... direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.” Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring) (internal citation omitted).
25 As discussed in section III(D), infra, the agency decisions that plaintiffs challenge are not adverse employment actions actionable under the ADEA.
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2. The FAA Is Entitled to Judgment Because it Has Established a Same-Decision Affirmative Defense
"[A]n employer shall not be liable if it can prove that, even if it had not taken gender into
account, it would have come to the same decision regarding a particular person." Price
Waterhouse, 490 U.S. at 242. This showing, the Court held, establishes "an affirmative defense:
the plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to
prevail, must persuade it on another." Id. at 246. If this defense were proven, then the employer "shall not be liable." Id. at 242.26 While the defense is not implicated here because plaintiffs
have failed to carry their threshold burden of proving that there was a mixed motive and the
decision was based even in part on age, even if the plaintiffs have carried that burden then the
defense is proven here.
The only evidence before the Court relating to the considerations taken at the actual time
of the decision at issue shows that there is no reference to age. See section II.B, supra. Indeed,
the only evidence on which plaintiffs rely – post-decision public relations documents – also do
not refer to age. In fact, they do not even purport to refer to the factors that actually were
26 In response to the Price Waterhouse decision, Congress amended Title VII (i) by establishing an alternative for proving that an unlawful employment practice has occurred, i.e., proof that race was a “motivating factor” rather than a substantial factor (as both concurring Justices and all three of the dissenting Justices in Price Waterhouse thought is required), and (ii) by limiting the effect of the affirmative defense to a restriction on relief, i.e., establishing the affirmative defense no longer “absolve[s] [the employer] of liability” in Title VII cases. Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003); See also Porter v. Natsios, 414 F.3d 13, 18 (D.C. Cir. 2005). Plaintiffs’ repeated citations to Desert Palace, See, e.g., Pl. App. at 93, is unavailing in this case because that decision relates to the amendment to Title VII, and that amendment does not apply to the ADEA. See Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 105, 107, 102d Cong., 1st Sess. (Nov. 21, 1991) (amending 42 U.S.C. § 2000e-2 (Title VII), but not amending the federal employment provision of the ADEA, 29 U.S.C. § 633a, in this respect); see also 29 U.S.C. § 633a(f) (federal government personnel actions “shall not be subject to” any other ADEA provision).
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considered at the time of the decision, but rather they refer to a post-hoc explanation of the effects of the decision on a group that could legitimately have been considered in any event in making the decision, i.e., the retirement eligible workforce.
In contrast, the FAA has adduced proof that age was not considered in making the decision. But to provide a response to plaintiffs' argument, the FAA has also adduced proof that establishes a bar to liability in the case. The FAA has submitted a sworn statement that, had age had been considered, the FAA nevertheless would have reached the same decision:
[E]ven if I had been aware of the age or retirement eligibility of the AFSS workforce and had considered the age or retirement of the workforce, I still would have taken the same actions [regarding the AFSS A-76 Competition] to comply with the president’s Management Agenda and because there was a legitimate business reasons for taking them. Hennigan Decl. ¶ 23. This showing by the FAA satisfies the Supreme Court's standards of proof: [T]he employer should . . . present some objective evidence as to its probable decision in the absence of an impermissible motive. . . . The very premise of a mixed-motives case is that a legitimate reason was present . . . . The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. Price Waterhouse, 490 U.S. at 252. The FAA has adduced extensive objective evidence of the reasons for its decision, it is a premise of plaintiffs’ own argument about mixed motive that a legitimate reason was present and the evidence shows it was present, and the only evidence before the Court shows that the same decision would have been made based on legitimate nondiscriminatory reasons. Accordingly, defendants have established an affirmative defense that bars liability on plaintiffs’ disparate treatment claim.
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III. PLAINTIFFS CANNOT COLLATERALLY ATTACK PRIOR ADMINISTRATIVE DECISIONS UNDER THE GUISE OF AN ADEA CLAIM Though styled as an ADEA suit, plaintiffs' first amended complaint and application for
preliminary injunction seek to collaterally attack administrative decisions that are separate and distinct from the underlying age discrimination claim. In various places in their preliminary injunction argument, plaintiffs challenge (1) the FAA's award of the AFSS contract to Lockheed, claiming that the FAA prejudicially assessed the A-76 bids and conducted faulty risk and cost assessments (see, e.g., Pl. App. at 75, 77, 85, 89-93, 100); (2) the FAA's decision to include Flight Service Specialist activities in its 2002 FAIR Act inventory, which decision was upheld against plaintiffs' administrative FAIR Act challenges to it, see, e.g., Pl. App. at 73-74, 85; and (3) the FAA's decision to conduct the AFSS A-76 competition, see, e.g., Pl. App. at 74. Plaintiffs cannot collaterally attack these decisions through the vehicle of the instant ADEA suit.
A. This Court Lacks Jurisdiction over a Challenge to the FAA's July 20, 2005 Order Rejecting Plaintiffs' Challenge to the FAA's Decision to Award the AFSS Contract to Lockheed
As part of their ADEA suit, plaintiffs seek to challenge the FAA's decision to award Lockheed a contract to assume responsibility over the functions performed at automated flight service stations. The final agency decision on this point is embodied in the FAA's July 20, 2005 Order in which the FAA Administrator adopted the special master's June 28, 2005 findings and recommendations. However, as demonstrated below, this Court lacks jurisdiction to review final agency orders regarding procurement matters. See 49 U.S.C. § 46110.
FAA's Office of Dispute Resolution for Acquisition (ODRA) has a comprehensive administrative scheme in place for handling challenges to A-76 bid competitions. See ODRA Procedural Rules for Contests of A-76 Competitions. These procedural rules complement
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ODRA's procedural regulations for procurement matters, such as bid protests and contract disputes. See 14 C.F.R. § 17.1. Under this scheme, A-76 Contests are resolved through FAA's dispute resolution system. See Contest Rule (CR) 7(a). ODRA either makes findings and recommendations or delegates this task to a special master. See CR 7(d). The findings and recommendations are then referred to the FAA Administrator, who renders the agency's final decision in the matter. See CR 16. The Administrator's decision, in turn, is a final agency order subject to review only in the United States Courts of Appeals. See CR 17(a); 49 U.S.C. § 46110(a).
In this case, after a public solicitation and competitive bidding process, the FAA awarded Lockheed a $1.9 billion contract to assume responsibility over the functions performed at automated flight service stations. Kathleen Breen, president of NAATS, timely filed an A-76 Contest as the agent for a majority of the affected employees. See Neill ODRA Opinion at 3 (Ex. Y). Upon receiving plaintiffs' A-76 Contest (along with a separate Contest filed by the Agency Tender Official who submitted the government's in-house bid), the Director of ODRA appointed a special master, who is an Administrative Judge with a lifetime appointment to the General Services Administration Board of Contract Appeals. Based upon the findings and recommendations of the special master, the FAA Administrator denied both A-76 Contests in their entirety in an Order dated July 20, 2005.
Plaintiffs now seek to collaterally attack the FAA's July 20, 2005 Order adopting the special master's findings and recommendations. Such a challenge is subject to the exclusive jurisdiction of another court. Congress vested exclusive jurisdiction in the United States Courts of Appeals to review final agency orders regarding procurement matters. Section 46110(a) provides:
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[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or . . . the Administrator of [FAA] with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. 49 U.S.C. § 46110(a). An order falling under § 46110 is within the "exclusive jurisdiction" of the courts of appeal, 49 U.S.C. § 46110(c)), and the district court's jurisdiction is preempted by the statute. See Clark v. Busey, 959 F.2d 808, 811 (9th Cir. 1992). In a case virtually identical to this one, the D.C. Circuit in Carey v. O'Donnell, 506 F.2d 107, 110 (D.C. Cir. 1974), held that the district court lacked jurisdiction over an ADEA claim that sought to challenge the final order of an administrative agency which was subject to review only in the courts of appeal. The D.C. Circuit explained that plaintiffs' complaint, "although couched in terms of violations of . . . the ADEA," constituted an impermissible "collateral attack" on a final administrative order. Id. See also J.A. Jones Management Services v. FAA, 225 F.3d 761, 762 (D.C. Cir. 2000); Multimax, Inc. v. FAA, 231 F.3d 882 (D.C. Cir. 2000). Therefore, this Court lacks jurisdiction over the FAA's July 20, 2005 Order adopting the special master's findings and recommendations. B. The Doctrine of Collateral Estoppel Precludes Plaintiffs From
Challenging The FAA's July 20, 2005 Order Even if this Court finds that it has jurisdiction under 49 U.S.C. § 46110, the doctrine of collateral estoppel precludes plaintiffs from challenging the FAA's July 20, 2005 Order. The doctrine of collateral estoppel, also known as issue preclusion, is a procedural, common-law rule developed by courts to determine when the policy of avoiding repetitious litigation should make an issue previously decided by an adjudicatory body binding in subsequent federal court
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litigation. See Allen v. McCurry, 449 U.S. 90, 94-96 (1980); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979). Collateral estoppel applies not only to judicial adjudications, but also to determinations made by agencies other than courts, when such agencies are acting in a judicial capacity. See Nasem v. Brown, 595 F.2d 801, 806 (D.C. Cir. 1979). The seminal case on the application of collateral estoppel based on administrative adjudications is United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966). In Utah Constr. & Mining Co., the Supreme Court unanimously held that factual issues previously decided in an administrative adjudication may be given preclusive effect when the "administrative agency [was] acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate." Id. The Supreme Court has explained that "giving preclusive effect to administrative factfinding serves . . . both the parties' interest in avoiding the cost and vexation of repetitive litigation and the public's interest in conserving judicial resources." University of Tennessee v. Elliott, 478 U.S. 788, 798 (1986).
1. The Requirements Set Forth In Utah Constr. & Mining Co. Are Met In This Case
Here, the special master's findings and recommendations should be given preclusive effect because the criteria set forth in Utah Constr. & Mining Co. are satisfied, namely (1) that the special master acted in a judicial capacity, (2) that the special master resolved disputed issues of fact properly before it, and (3) that the parties had an adequate opportunity to litigate.
First, the special master acted in a judicial capacity when he considered plaintiffs' A-76 Contest because the dispute was heard before an administrative judge in an adversary proceeding in which all parties were represented by counsel. See Boeing Petroleum Services, Inc. v.
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Watkins, 935 F.2d 1260, 1261 (Fed. Cir. 1991) (describing the General Services Administration Board of Contract Appeals as a "quasi judicial" body).
Second, as evidenced by the special master's findings and recommendations, the special master resolved disputed issues of fact properly before it. Indeed, the special master made 136 separate findings and noted:
The contesters in these two cases have challenged virtually every phase of this procurement once proposals were submitted. They have questioned the adequacy of discussions, the reasonableness of the technical evaluation, the accuracy of the cost evaluation, the validity of the SSEB deliberations, and the correctness of the SSA's performance decision. See Neill ODRA Opinion at 61 (Ex. Y). In addition, ODRA has been given explicit statutory authority to appoint special masters to "adjudicate" such issues and jurisdiction to resolve such disputes. See 49 U.S.C. § 46110(d)(4). Thus, fact-finding issues of this nature clearly fall within the scope of a special master's duties. See CR 15(b). Third, plaintiffs had a full and fair opportunity to litigate the A-76 Contest at the administrative level. Plaintiffs had no fewer than three attorneys representing them before the special master. Further, plaintiffs had hired an independent consultant. Plaintiffs also took the deposition of two FAA witnesses as part of discovery. These depositions were in addition to providing extensive documents to plaintiffs in discovery. See, e.g., Bowen v. United States, 570 F.2d 1311, 1322 n.30 (7th Cir. 1978) (finding that the parties had a full and fair opportunity to litigate the issues in the administrative proceeding under the Federal Aviation Act where they had the right to introduce oral and documentary evidence, to cross-examine witnesses, to take depositions and serve written interrogatories, to appeal from the administrative law judge's decision to the full National Transportation Safety Board, and to appeal the NTSB's decision to the Court of Appeals).
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Plaintiffs also have had a full and fair opportunity to litigate the A-76 Contest because of
the potential to seek judicial review of the administrative adjudication. By statute, final agency
orders issued by the FAA are reviewable in the United States Courts of Appeals. See 49 U.S.C.
§ 46110(a). To the extent that the FAA's July 20, 2005 Order is subject to review, the FAA
Administrator informed plaintiffs that "such review shall be sought in accordance with Title 49,
United States Code § 46110." See FAA Order at 2 (Ex. Z). The fact that plaintiffs have elected
not to seek review of the FAA's July 20, 2005 Order is immaterial because it is the potential for judicial review that is key, not whether it is actually exercised.27 See Utah Constr. & Mining Co.,
384 U.S. at 422 (preclusive effect given to an administrative decision on the ground that both
parties had "an opportunity to seek court review of any adverse findings") (emphasis added);
Misischia v. Pirie, 60 F.3d 626, 630 (9th Cir. 1995) (plaintiff had an "adequate opportunity to
litigate" because "[h]e had an opportunity, which he chose not to take, for judicial review").
Hence, to the extent plaintiffs now seek to use this forum as an attempt to re-litigate the
FAA's July 20, 2005 Order adopting the findings and recommendations of the special master, they are precluded from doing so under the doctrine of collateral estoppel.28
27 Although the 60-day deadline for submitting a petition in the Court of Appeals has not yet expired, see 49 U.S.C. § 46110(a), the filing of the instant suit and the application for preliminary injunction, in which plaintiffs so vigorously attempt to collaterally attack the special master’s findings and recommendations, suggests that plaintiffs do not intend to seek review in the Court of Appeals. More importantly, the fact that plaintiffs continue to have a possible avenue of judicial review available to them counsels against undertaking a review of any of the administrative findings.
28 The exception enunciated by the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974), and Chandler v. Roudebush, 425 U.S. 840, 845-48 (1976), that federal employees are entitled to de novo judicial review of their discrimination claims, is inapplicable here because discrimination was not in issue at the administrative level and because none of the administrative findings has any relevance to plaintiffs’ ADEA claim. Even assuming that age discrimination was at issue or that the special master’s findings pertain to an essential
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2. Plaintiffs Have Already Unsuccessfully Litigated Many Factual Issues And Claims Before Judge Neill
To the extent that the Court decides to conduct a de novo review of the A-76 Contest, Judge Neill's findings and recommendations should be afforded great deference. Plaintiffs had the opportunity to fully litigate these issues at the administrative level, conduct discovery, including depositions of FAA officials, and all parties were represented by counsel. In addition, these administrative proceedings are clearly different in kind than the administrative proceedings in a typical ADEA case because Judge Neill was focused on the propriety of a contract award, not plaintiffs' claims of discrimination. For these reasons, the Court should admit Judge Neill's findings and recommendations and accord it great weight. See Alexander, 415 U.S. at 60.
Plaintiffs' application for injunctive relief seeks a second bite at the apple. Plaintiffs raise several factual issues and claims that they unsuccessfully presented to Judge Neill in several contests to the FAA's decision to award the contract to Lockheed. But Judge Neill squarely rejected plaintiffs' claims in their entirety. See Neill ODRA Opinion at 98-101. The FAA's Administrator adopted this ruling six days before plaintiffs sought injunctive relief from this Court. The following summarizes the factual assertions and claims that plaintiffs raise in this action and which Judge Neill considered and rejected. They fall within three general categories – claims that: (i) there were prejudicial errors in the bidding process, (ii) the FAA was biased in favor of the Lockheed proposal or against the MEO proposal, and (iii) the FAA made improper considerations as to the costs of the two proposals.
element of plaintiffs’ ADEA claim, the administrative decision still “may be admitted as evidence and accorded such weight as the [district] court deems appropriate.” See Alexander, 415 U.S. at 60.
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First, plaintiffs argue that their preferred MEO proposal had numerous strengths and few weaknesses and that FAA ignored some key strengths, that Lockheed's proposal was not subjected to as rigorous a critique because it purportedly had obvious flaws, and that both the Lockheed and MEO proposals had similar timetables. See Pl. App. at 25-28. Judge Neill's opinion clearly demonstrates that the evaluators found strengths and weaknesses for all the proposals. See, e.g., Neill ODRA Opinion at 19 (Finding 44) & 67-70 (describing strengths and weaknesses and how they were determined to be "influential"). While plaintiffs assert FAA ignored the key strength of its "retention of incumbent workforce," Pl. App. at 26, this is simply wrong as Judge Neill's opinion shows. The TET's evaluation of the MEO proposal specifically lists this as an "influential strength" of the proposal, see Neill ODRA Opinion at 29, but Lockheed's proposal also received significant strengths for its recruitment and staffing plans based on generous compensation and benefits packages and commitment to hire everyone who wanted a job. Id. at 30. While plaintiffs' complain here (as they did before Judge Neill) that the MEO had special knowledge of the job function, workload fluctuations, and other staffing issues but that Lockheed would have to compile a new workforce, Pl. App. at 26-28, the FAA considered this in its evaluation of Lockheed and concluded at the end of the day that Lockheed was the best value for the contract. Judge Neill, in turn, examined each of the four factors that the TET determinations covered and concluded that the TET's finds were neither disparate in treatment nor irrational. See Neill ODRA Opinion at 72-86 (concluding that the TET's decisions were rationally based). Finally, Judge Neill concluded that (i) the SSEB "undertook a careful review" of the TET/CET reports "including Appendix B," id. at 99, which plaintiffs here rely on so heavily, and the proposals and ultimately awarded the contract to Lockheed; (ii) the "SSEB proceeded to make a comparative assessment, technical factor by technical factor, of the various
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technical benefits and risks, see id.; see also Findings 134, 136; and (iii) the SSEB and SSA made a reasonable best value judgment in choosing Lockheed at the end of the day, id. at 98-101.
Second, plaintiffs repeatedly assert that the FAA acted with bias – either in favor of Lockheed or against the MEO – in awarding the contract. See Pl. App. at 29-30. Plaintiffs squarely presented this issue to Judge Neill, who rejected it in its entirety. See generally Neill ODRA Opinion at 45-49, 62-65 (finding no individual or institutional biases). More specifically, plaintiffs allege that FAA was biased against the MEO proposal because FAA claimed the existence of a union was an influential weakness, despite an alleged TET conclusion to the contrary, that was not found within the Lockheed proposal. Pl. App. at 30. But Judge Neill concluded that the TET did find a union negotiation weakness, and that it was substantiated and rational. Neill ODRA Opinion at 31-32, 77-79 (discounting plaintiffs' claim of "egregious" "disparate treatment" of TET's consideration of similar weaknesses in both the MEO and Lockheed proposals"). Importantly, Judge Neill concluded that the SSEB rejected the TET's finding on that weakness and did not consider it in its award recommendation. Id. at 55-60. Plaintiffs also cite FAA's bias in "FAA's assessment of proposed technologies." Pl. App. at 29-30, 55, 75. But Judge Neill rejected this claim because the TET was qualified to assess the technology and rationally evaluated the competing solutions and the strengths and weaknesses assigned such that the overall evaluation results had a rational basis consistent with SIR and AMS. Neill ODRA Opinion at 40-44 (evaluation of Lockheed FS-21 system), 73-74 (limited value of incumbency in MEO solution), 80-84 (rational technical evaluation results).
Third, plaintiffs claim that FAA had their thumb on the scale because Lockheed was not assessed technical or cost risks, Pl. App. at 29, 38-40. Thus, plaintiffs complain that the FAA did not address the "realism" of the labor mix and that the FAA did not request new wage
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determinations from the Department of Labor or properly assess the Lockheed proposal for costs. See id. at 38-40. But this again ignores that plaintiffs presented these precise issues to Judge Neill who found the FAA's evaluation of technical and cost issues entirely reasonable. Neill ODRA Opinion at 86-96 (addressing price reasonableness, cost realism, and claims that Lockheed's bid had a variety of unrealistic costs). With regard to plaintiffs' assertion that Lockheed's wage costs were too low with respect to new hires because it used a GS-9 value instead of a GS-12, Step 5, Pl. App. at 38-39, plaintiffs made the identical claim to Judge Neill, who specifically considered and rejected it finding that "it was reasonable of the CET to conclude that Lockheed's proposed labor rates were realistic." See Neill ODRA Opinion at 89-91 (rejecting plaintiffs' challenge to unrealistic labor costs). With regard to Department of Labor issue, it was proper to not attach the wage determination because it was not known and Judge Neill specifically concluded that it was "wholly inappropriate for the CET to conclude that a cost risk exists with regard to the Lockheed proposal based upon what the DOL may or may not say." See id. at 91-92 (discussing "Cost Risks Associated with the Wage Determination"). The Court should at the very least accord Judge Neill's decision great deference and reject these collateral attacks against Judge Neill's careful and reasoned decision.
C. Plaintiffs' Challenges to the FAA's Decisions to List Flight Service Specialist Activities on its 2002 FAIR Act Inventory and to Subject AFSSs to an A-76 Cost Competition Are Untimely under the ADEA
In their ADEA suit, plaintiffs also seek to collaterally attack the FAA's decision to classify the activities of Flight Service Specialists as not "inherently governmental." This determination led Flight Service Specialists to be included on the FAA's 2002 FAIR Act inventory. NAATS challenged this decision administratively under the FAIR Act, and those challenges were denied. To the extent plaintiffs now seek to collaterally attack the agency's
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decisions concerning the inclusion of Flight Service Specialists on the FAIR Act inventory, such a claim is untimely in the context of an ADEA suit.
The ADEA provides two avenues for obtaining relief for federal employees seeking judicial redress for discriminatory acts by employers. See Stevens v. Dep’t of Treasury, 500 U.S. 1, 5-6 (1991). The first is through the administrative process, 29 U.S.C. § 633a(b), and the second is by filing suit directly in district court, 29 U.S.C. § 633a(d). The latter option requires compliance with certain statutory notice requirements:
When the individual has not filed a complaint concerning age discrimination with the [EEOC], no civil action may be commenced by any individual under this section until the individual has given the [EEOC] not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. 29 U.S.C. § 633a(d) (emphasis added). Here, plaintiffs chose to bypass the administrative process and file suit directly in district court. See First Am. Compl. ¶¶ 17-18 (citing 29 U.S.C. § 633a(d)). In an effort to demonstrate their compliance with the statutory notice requirements of § 633a(d), plaintiffs contend that they provided the requisite notice to the EEOC on February 8, 2005 for nine of the named plaintiffs and "on either March 1, 2005 or April 21, 2005" for the remaining named plaintiffs. Id. Accepting these statements as true, plaintiffs' notices are untimely because they were filed with the EEOC more than 180 days after the FAA's inclusion of flight service specialists on the 2002 FAIR Act inventory and more than 180 days after the DOT's final decision of May 9, 2003 denying NAATS' appeal. Therefore, insofar as plaintiffs seek to challenge the FAA's decision to include flight service specialists on the 2002 FAIR Act inventory, this claim is untimely under the ADEA. For these same reasons, plaintiffs' challenge to the FAA's decision to subject Flight Services to an A-76 cost competition, made in August, 2002, is untimely under the ADEA’s 180-
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day statute of limitations. See Memo from Chris Bertram to Acting Administrator (Aug. 21,
2002); see also Memo from Chris Bertram to Walter Pike, President of NAATS (Aug. 21,
2002).29
D. The Prior Administrative Decisions Cannot Be Collaterally Attacked Because They Do Not Constitute Adverse Personnel Actions Under The ADEA
Apart from the reasons discussed above, plaintiffs cannot collaterally attack
administrative decisions leading up to the RIF because those prior decisions do not constitute
adverse “personnel actions" under the ADEA. 29 U.S.C. § 633a(a).
Under the ADEA, federal employees "must show that they have suffered an adverse
personnel action in order to establish a prima facie case under the McDonnell Douglas
framework." Brown v. Brody, 199 F.3d 446, 455 (D.C. Cir. 1999).30 In the D.C. Circuit, "an
employee suffers an adverse employment action if he experiences materially adverse
consequences affecting the terms, conditions, or privileges of employment or future employment
29 Nor is the doctrine of equitable tolling available to plaintiffs. See Harper v. Georgetown Univ., 748 F. Supp. 6, 7 (D.D.C. 1990) (noting that a district court’s equitable power to toll should be exercised only in “extraordinary and carefully circumscribed instances”) (quoting Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). Here, the FAA’s inclusion of flight service specialists on the 2002 FAIR Act inventory put plaintiffs on notice that their positions were eligible for competition. The fact that the FAA did not actually compete the positions until a later date does not warrant equitable tolling because plaintiffs knew or should have known of the operative facts upon which they now rely to challenge their inclusion on the FAIR Act inventory. See, e.g., Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) (holding that the 180-day period is equitably tolled “until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights”) (citation omitted); but see Stover v. EEOC, 673 F. Supp. 522, 524 n.3 (D.D.C. 1987) (applying equitable tolling where the plaintiff “could not appreciate the adverse or discriminatory nature of his transfer until the RIF was announced”).
30 Although Brody was a Title VII case, “[c]ourts of appeals routinely apply the same standards to evaluate Title VII claims as they do ADA claims, ADEA claims, and even ERISA claims . . . This is so because these statutes often use the same ‘terms and conditions’ language to proscribe discriminatory employment practices.” Brody, 199 F.3d at 456 n.10.
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opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown, 199 F.3d at 457). When conducting this inquiry, courts focus on "ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating . . . [and not] interlocutory or mediate decisions having no immediate effect upon employment conditions." Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997) (citations omitted) (emphasis added). Consequently, the touchstone of an adverse employment action is the presence of tangible harm to the employee. See Hussain v. Principi, 344 F. Supp. 2d 86, 95-96 (D.D.C. 2004).
This inquiry "calls for a comparative judgment: what was the [employee's] situation immediately before the alleged adverse personnel action, and what was the situation after it?" Currier v. Postmaster Gen., 304 F.3d 87, 88 (D.C. Cir. 2002). Unless the contested action adversely affected the employee's pay, benefits, job responsibilities or produced a similar harm, it cannot be considered an adverse employment action. See Forkkio, 306 F.3d at 1131. Thus, the mere fact that an agency undergoes a reorganization does not necessarily mean that its employees have been subject to an adverse employment action. See id.; Ware v. Billington, 344 F. Supp. 2d 63, 78 (D.D.C. 2004) (noting that the existence of an RIF was irrelevant when the proposed restructuring produced no harm to plaintiff). Similarly, "an unrealized risk of a future adverse action, even if formalized, is too ephemeral to constitute an adverse employment action." Russell v. Principi, 257 F.3d 815, 819-20 (D.C. Cir. 2001) (holding that a low performance evaluation that exposed a federal employee to a higher risk of an RIF was not an adverse personnel action).31 Thus, to rise to the level of an adverse personnel action, the contested action
31 The logic of the prudential standing requirement is analogous. See Roshan v. Smith, 615 F. Supp. 901, 905 (D.D.C. 1985) (“[W]here a plaintiff seeks to rely on threatened as opposed
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must produce tangible harm that altered the employee's conditions of employment. See Currier, 304 F.3d at 88-89.
Here, plaintiffs cannot establish a prima facie case by alleging broadly that the agency's decisions leading up to the RIF were improper. Instead, plaintiffs must prove tangible harm to individuals; it is not enough to allege that the agency made decisions concerning positions. See Forkkio, 306 F.3d at 1131. The only adverse personnel action undertaken by the FAA is the RIF. Neither the agency's inclusion of flight service specialists on the FAIR Act inventory nor its decision to compete the job function satisfy the standard. Nor was the bid award to Lockheed an adverse employment action.
To begin with, none of the steps preceding the RIF can properly be characterized as "personnel" decisions. Their character was inherently administrative, relating to the organization of the agency and its operations. Moreover, even if these decisions could be considered "personnel" actions, no tangible harm to individual employees stemmed from them. In all three instances, individual employees' pay, benefits, and job responsibilities remained constant throughout; the conditions of their employment the day after the action were the same as the day before it. See Currier, 304 F.3d at 88. While the plaintiffs may argue that the individual decisions that led to the RIF each fostered "materially adverse consequences affecting . . . [their] future employment opportunities," Forkkio, 306 F.3d at 1131, at the time each decision occurred
to existing injury [for standing purposes], the plaintiff must demonstrate that the injury to him would be immediate, concrete and specific, rather than merely conjectural and hypothetical.”). For example, in Andrade v. Lauer, 729 F.2d 1475, 1481 (D.C. Cir. 1984), the D.C. Circuit held that the “highly speculative” nature of the contested harm—an allegedly forthcoming RIF—precluded litigation of the issues. The court also noted that “the vague possibility of future layoffs,” without an indication of specific action, was insufficient to make the case appropriate for judicial resolution. Id. at 1482 n.10.
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it posed only "an unrealized risk of a future adverse action [that], even if formalized, [was] too ephemeral to constitute an adverse employment action," Russell, 257 F.3d at 819-20 (emphasis added).
Consider each decision in turn. First, the agency's designation of the activities performed at automated flight service stations as commercial harmed no one. While it may have raised the possibility that the positions at these stations would later be considered for competition, competed, contracted to private employers, and eventually eliminated, such a risk is too attenuated and too speculative to create an adverse employment action. See Russell, 257 F.3d at 819-20. Notably, other positions within the FAA and other government agencies have been designated commercial without later being subject to competition. See Pl. App. at 19 (acknowledging that "7,345 employees within the FAA were performing so-called commercial activities in 2000" yet the vast majority of these positions were not competed); OMB Circular No. A-76 at A-3 (listing reason codes for not subjecting job functions designated as "commercial activities" to competition). As these examples demonstrate, nothing about the designation itself changes the employees' conditions of employment: their pay, benefits, and responsibilities are not at all altered. See Forkkio, 306 F.3d at 1131. No individual employee can point to tangible harm stemming from the agency's action. Id. Conversely, permitting every individual employee holding one of these job functions to challenge the commercial designation – through an ADEA claim – would unjustifiably preempt the proper administrative mechanisms.
Second, the FAA's decision to initiate a public-private competition left no employee worse off. As the plaintiffs' acknowledge, if the Most Efficient Organization (MEO) bid had prevailed, the vast majority of plaintiffs would have remained employed by the federal government and retained their pay, benefits, and positions. See Pl. App. at 26 ("[T]he MEO
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proposal had the unique benefit of . . . ‘retaining the . . . incumbent workforce.'"); Ex. 10 at 11-12; Ex. 28 at 178. Thus, with one viable outcome of the cost competition clearly not adverse to the employees' interests, it is difficult to consider the decision to conduct that competition as an adverse personnel action. The risk that another bid might prevail is too speculative and "ephemeral" for the initial decision to compete to constitute the requisite harm. See Russell, 257 F.3d at 819-20.
Third, the bid award to Lockheed was not an adverse employment action because, at the time of the award, no individual harm was realized. In fact, immediately after the award, the FAA certified the positions at automated flight service stations as surplus, thereby entitling employees at these stations to a preference for other agency positions. See Williams Decl. ¶ 11. Such lateral transfers, when pay and benefits remain constant and responsibilities remain similarly high, do not amount to adverse employment actions. See Brody, 199 F.3d at 457. As of August 19, 2005, the FAA had made at least 229 job offers to AFSS employees. See Williams Decl. ¶ 13. While the award of the contract to Lockheed may result in an RIF, the affected employees in these positions must demonstrate individual harm. Some employees will be subject to termination, some will retire, and others will transfer within the FAA. Thus, after the award to Lockheed, neither the FAA nor the plaintiffs could identify who is adversely affected by the agency's actions for purposes of a discrimination action.
Finally, characterizing inherently administrative actions that precede an RIF as "adverse personnel actions" would be inconsistent with congressional intent. Most notably, such a view would permit employees to contest agency actions far removed from the type of "ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating," Taylor, 132 F.3d at 764 (citation omitted), that the ADEA was designed to
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confront. As a result, the Court should focus on the adverse personnel action at issue – the RIF – as plaintiffs presently fail to allege any other adverse personnel action sufficient to establish a prima facie case under the McDonnell Douglas framework. IV. THERE IS NO GENUINE ISSUE OF MATERIAL FACT TO SUPPORT, AND
THEREFORE NO LIKELIHOOD OF SUCCESS ON THE MERITS OF, PLAINTIFFS' DISPARATE IMPACT CLAIM A. This Court Lacks Jurisdiction Over Plaintiffs' Disparate Impact Claim Because
Congress Did Not Waive the Federal Government's Sovereign Immunity for Age Discrimination Claims Based on the Disparate Impact Theory of Liability Plaintiffs' disparate impact claim should be dismissed because the statute that prohibits discrimination on the basis of age in federal employment, 29 U.S.C. § 633a, does not authorize a disparate impact claim against the federal government. Congress waived the federal government's sovereign immunity only for discrimination "based on age," not for facially-neutral practices which have a disparate impact on employees over the age of 40. It is "axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983) (citations omitted). The bar of sovereign immunity applies even when purely equitable relief is sought. See, e.g., Jaffee v. United States, 592 F.2d 712, 717 n.10 (3d Cir. 1979) (citations omitted). Waivers of sovereign immunity "cannot be implied but must be unequivocally expressed." Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (citations omitted). A waiver of sovereign immunity must be definitively and unequivocally stated and cannot be enlarged beyond the boundaries that the statutory language plainly requires. United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992); Forman, 271 F.3d at 296. Any waiver of immunity must be “construed strictly in favor of the sovereign." Ruckelshaus v. Sierra Club, 463 U.S. 680,
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685 (1983) (citing McMahen v. United States, 342 U.S. 25, 276 (1951)). Further, when construing such a waiver, the court must resolve all ambiguities in favor of preserving the government's immunity from suit. See, e.g., Lane v. Pena, 518 U.S. 187, 192 (1996); United States v. Williams, 514 U.S. 527, 531 (1995). Absent a waiver of sovereign immunity, a district court lacks jurisdiction over claims against the United States. See, e.g., Mitchell, 463 U.S. at 212.
Plaintiffs' complaint names Secretary of the Department of Transportation, Norman Mineta, and the Administrator of the FAA, Marion Blakey, in their official capacities, as defendants. First Am. Compl. ¶¶ 13, 14. Thus, this is an action against the United States and, therefore, is subject to the defense of sovereign immunity. See Hawaii v. Gordon, 373 U.S. 57, 58 (1963). Because the federal sector ADEA does not explicitly create a cause of action for disparate impact claims, such claims against the United States are barred by sovereign immunity.
1. The Text of the Statutory Prohibition on Age Discrimination in Federal Employment Does Not Contain or Support a Waiver of Immunity for Disparate Impact Claims a. The ADEA Provision Applicable to Federal Employees Is More Limited Than the ADEA Private Sector Provisions
Enacted in 1967, the ADEA originally applied only to actions against private employers. In 1974, Congress expanded the scope of the ADEA to include state and local governments and federal government employees. While Congress brought state and local governments within the ADEA's reach by simply expanding the term "employer" in the ADEA, it added an entirely new, more limited section, § 15 (codified at 29 U.S.C. § 633a), to address age discrimination in federal employment. Kimel v. Fl. Bd. of Regents, 528 U.S. 62, 68 (2000); Lehman v. Nakshian, 453 U.S. 156, 166-67 (1981). Thus, "Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector . . . ." Lehman, 453 U.S. at 166-67; see also 29 U.S.C. §
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633a(f) (federal government personnel actions "shall not be subject to" any other ADEA provision (subject to exceptions not pertinent here)).
The federal sector provision of the ADEA requires simply that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be free from any discrimination based on age." 29 U.S.C. § 633a(a). The requirement that employment decisions by federal employers be made free from any discrimination "based on age" speaks most naturally to a prohibition against intentional age discrimination (disparate treatment claims), not to facially-neutral practices which have the effect of a disparate impact on employees over 40 years of age (disparate impact claims). The Supreme Court has explained the distinction between disparate treatment and disparate impact theories of employment discrimination as follows:
‘Disparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . . Claims that stress ‘disparate impact' [by contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate-impact theory. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (quoting Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)). There is no language in § 633a(a) that implies that Congress contemplated that it was waiving immunity with respect to disparate impact claims (as opposed to intentional discrimination against an individual); much less is there any language in the statute that expressly and unambiguously waives such immunity.
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b. The Supreme Court's Interpretation of the Private Sector ADEA Provision Precludes Inferring a Cause of Action Based on the Disparate Impact Theory From the Federal Employment ADEA Provision
The Supreme Court recently held that the section of the ADEA that applies to the private sector implicitly authorizes disparate impact claims. Smith v. City of Jackson, __ U.S. __, 125 S. Ct. 1536, 1540 (2005). As a threshold matter, the statutory language and scheme that the Court interpreted in Smith is significantly different from that prohibiting age discrimination in federal employment: as set forth more fully below, the terms of the federal sector ADEA terms are narrower than the private sector ADEA provision at issue in Smith and the wording of the federal employment provision, and its legislative history, make clear that is directed only to intentional disparate treatment. In addition, the Court was not constrained in its interpretation of the private sector provision by the heightened standards applicable to construing waivers of sovereign immunity. Smith is thus distinguishable from the instant case because it did not address the issue of whether Congress waived immunity for disparate impact age discrimination claims against the federal government. Nevertheless, the Court's reasoning in Smith actually supports the conclusion that Congress did not intend the language of the federal sector ADEA claim to encompass disparate impact claims.
i. The Smith Rationale At issue in Smith was 29 U.S.C. § 623(a), which makes it unlawful for a private employer: (1) to fail to refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; [or]
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(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age[.] The Court found an implied right of action based on the disparate impact theory under subsection 2 of these provisions for three principal reasons. First, the Court found that the second subsection of the ADEA private sector disparate impact provision, § 623(a)(2), is comparable to the private sector provision of Title VII. Because the language of § 623(a)(2) is identical to language in § 703(a)(2) of the Civil Rights Act of 1964 (Title VII), which the Court had previously held in Griggs v. Duke Power Co., 401 U.S. 424 (1971), did not require a showing of discriminatory intent, the Court held that § 623(a)(2) supports a disparate impact claim in which proof of discriminatory intent is not required. Smith, 125 S. Ct. at 1540-42 & n.6. The Court carefully limited its finding of a disparate impact claim to subsection (a)(2), and expressly excluded subsection (a)(1) from the scope of its conclusion. The Court emphasized the "key" textual distinction between the two clauses of §623(a), i.e., that subsection (1) of § 623(a) "does not encompass disparate impact liability" because "[t]he focus of the section is on the employer's actions with respect to the targeted individual." Smith, 125 S. Ct. at 1542 n.6. Second, the Smith Court reasoned that the existence of the RFOA provision in § 623 which expressly permits any "otherwise prohibited" action where the differentiation is based on reasonable factors other than age, 29 U.S.C. § 623(f)(1), supports the conclusion that § 623(a)(2) authorizes disparate impact claims. Smith, 125 S. Ct. at 1543-44. This provision would be superfluous if the ADEA authorized only disparate treatment claims, since in disparate treatment cases, if an employer in fact acted on a factor other than age, there would be no liability in the first place. But the RFOA provision does have a role to play in disparate impact cases, in which
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"the allegedly ‘otherwise prohibited' activity is not based on age." Id. at 1544. In other words, the RFOA provision is addressed to an element of a claim that is absent from a disparate treatment claim, i.e., an action by an employer for a non-discriminatory reason. Since this element appears only in disparate impact claims, the Court reasoned that the statute, by addressing claims based on non-discriminatory motives in the RFOA provision, implies that the disparate impact claim was created in § 623(a)(2).32
Third, in support of its conclusion that § 623(a)(2) authorizes disparate impact claims, the Court noted that the EEOC had issued regulations interpreting the ADEA as authorizing relief on a disparate impact theory. Smith, 125 S. Ct. at 1544.
ii. The Smith Rationale Does Not Apply to the Federal Employment Provisions of the ADEA
Importantly, the Court in Smith was not construing a waiver of sovereign immunity and therefore was not constrained by the rule that waivers of sovereign immunity be express, not implied. The Court's analysis is clearly one of finding an implied right of action for a disparate impact claim in § 623(a)(2) notwithstanding the absence of an express provision creating such a claim. The method of finding an implied claim used in Smith is unavailable in this action because of the government's sovereign immunity. But even if this Court were permitted to employ a similar analysis with respect to § 633a, none of the Smith Court's three reasons for finding an implied right of action for a disparate impact claim in § 623(a)(2) apply to § 633a.
First, § 633a(a) – the federal employment provision – is not identical to, or even patterned after, § 703(a)(2) of Title VII, thus Griggs does not compel reading disparate impact liability into
32 The disparate impact claim that the RFOA provision limits had to be found in § 623(a)(2), if at all, because the Court said § 623(a)(1) “does not encompass disparate impact liability.” Smith, 125 S. Ct. at 1542 n.6.
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§ 633a.33 In addition, as a provision that is directed to intentional acts against individuals, § 633a is akin to § 623(a)(1), which "does not" create a disparate impact claim. Smith, 125 S. Ct. at 1542 & n.6.
Second, in contrast to the two-pronged language of §§ 623(a)(1) and (2), § 633a(a) simply prohibits discrimination "based on age." The language of § 633a(a) (prohibiting discriminatory "personnel actions against employees") is addressed to the same conduct as that used in § 623(a)(1) (prohibiting actions that "discriminate against any individual"), i.e., § 633a(a) focuses on personnel actions taken by an employer toward individual employees, and it is expressly directed to action taken for a single motive, i.e., "based on age." Unlike § 623(a)(2), the federal employment section does not refer to an employer's action to "classify" groups of employees and the effect of such classifications on individual employees. See Smith, 125 S. Ct. at 1542 n.6. Similarly, unlike § 623, there is no RFOA provision in § 633a, which, applying the Smith Court's reasoning, indicates that § 633a authorizes only disparate treatment claims. See id. at 1543-44. Indeed, there is nothing in the private sector provisions of the ADEA that could create an inference of an implied right of action for a disparate impact claim under the federal employment provision because the federal provision specifically and emphatically bars the application of the private provisions of the ADEA: "Any personnel action of any . . . agency . . . shall not be subject to, or affected by, any provision of this chapter, other than . . .[§ 633a]." 29 U.S.C. § 633a(f) (subject to an exception, not pertinent here, relating to the applicable age threshold). Third, in the absence of any support in the language or structure of the federal sector statute, it is
33 Congress modeled § 633a(a) after a different section of Title VII, the section which extended the protection of Title VII to federal employees. See 42 U.S.C. § 2000e-16(a); Lehman, 453 U.S. at 163-64.
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not surprising that there are no EEOC regulations interpreting § 633a(a) as authorizing disparate impact claims.34
Accordingly, there is no express or implied waiver of sovereign immunity in § 633a for disparate impact claims of age discrimination against the federal government.
2. The Legislative History of the Federal Sector ADEA Provision Confirms That Congress Did Not Intend to Waive Sovereign Immunity for Disparate Impact ADEA Claims Against the Federal Government
The legislative history of the federal sector provision of the ADEA demonstrates that Congress intended to prohibit the type of intentional discrimination based on age that is actionable under a disparate treatment theory of liability, and did not intend to create a cause of action based upon the type of conduct that disparate impact claims address.
a. Senate and House Statements and Reports Related the Federal Employment ADEA Provision to Inherently Intentional Conduct
On March 9, 1972, Senator Bentsen introduced the original legislation that would eventually become the federal sector provision of the ADEA. See S. 3318, 92d Cong. (1972); 118 Cong. Rec. 7745-46 (1972) (statement of Sen. Bentsen). This initial bill would have simply expanded the definition of "employer" in the ADEA to include federal, state and local governments. Id. In introducing the bill, Senator Bentsen cited mounting evidence of disparate treatment of older workers, e.g., that "the hiring and firing practices of governmental units discriminate against the elderly, frequently pressuring them into retiring before their productive days are over." 118 Cong. Rec. 7745. He discussed various forms of disparate treatment on the
34 Other than a statement of general policy, see 29 C.F.R. § 1614.101, the only reference to federal employment in EEOC ADEA regulations relates to statutory prerequisites to waivers of rights in settlements, see 29 C.F.R. § 1625.22(a)(4). This is not to suggest that the EEOC is empowered to promulgate a regulation that creates a right of action against the government otherwise barred by sovereign immunity, or that such a regulation would be entitled to deference.
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basis of age, including cases in which older federal employees were ignored or harassed by their superiors or subjected to special memos directed to "aging employees;" laws and regulations that prohibit the hiring of anyone over an arbitrary age, such as 45; and "documented instances in which Government employees have been flatly told or indirectly pressured to retire solely because of their age." Id. Senator Bentsen considered these inherently deliberate "pressures directed against older Government employees" to be "flagrant examples of age discrimination in employment" that should be outlawed. Id.
On May 4, 1972, Senator Bentsen resubmitted a revised version of his bill as an amendment to the Fair Labor Standards Amendments of 1972. See 118 Cong. Rec. 15,894-95. This bill retained the expanded definition of "employer" in the ADEA to include state and local governments, but provided a new and distinct section of the ADEA prohibiting age discrimination in federal employment. When he resubmitted his bill, Senator Bentsen again referred to evidence of intentional discrimination, i.e., the "mounting evidence that government employees are being discriminated against on the basis of their age." Id. at 15,894 (emphasis added). In subsequent remarks on the bill, the Senator explained that the bill was needed to bring federal employees within the scope of the ADEA, referring to the provision of the ADEA that makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 118 Cong. Rec. 24,397 (1972) (emphasis added). This is the subsection of § 623(a) that correlates with disparate treatment claims, not disparate impact claims. See Smith, 125 S. Ct. at 1542 & n.6; Hazen Paper, 507 U.S. at 609. Senator Bentsen also highlighted President Nixon's message on aging, in which President Nixon described discrimination based on age as "cruel and self-defeating" and as "destroy[ing] the spirit of those who want to work[.]" 118 Cong. Rec.
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24,397. These words comport with the type of intentional discrimination that forms the basis of disparate treatment claims. Without minimizing the real-world consequences of disparate impact discrimination, facially-neutral policies can hardly be described as "cruel" or "self-defeating," or as "destroying" the employee's "spirit."
Although Senator Bentsen's amendment passed unanimously in the Senate, it died in the House along with the rest of the Fair Labor Standards Amendments of 1972 over disagreements concerning the minimum wage. See 119 Cong. Rec. 2648 (1973). Senator Bentsen reintroduced the legislation the following year. When he reintroduced the legislation, Senator Bentsen defined age discrimination as discrimination that occurs "when an employee's qualifications for being hired, promoted or paid are determined primarily on the basis of his age rather than on the merits of his performance." Id. He provided the following examples of conduct in federal employment to which the bill's prohibition on age discrimination would likely apply:
if employees are subject to pressures from their administrators to retire as the result of so-called ‘reduction in force' orders cutting employment, if they are harassed by being repeatedly transferred, if they are denied their right to ‘bump' employees with less experience when personnel cutbacks are ordered, or indeed, if they are subject to psychological pressures from their superiors urging them to retire before their time, they may be the victims of age discrimination. Id. The employees in these examples are discriminated against because of their age; they are not merely the victims of facially-neutral practices that fall more harshly on certain employees. Senator Bentsen also expressed a concern that "the main burden of [cutbacks in government personnel] not fall upon older workers simply because they have attained a certain chronological age." Id. Again, this sounds in disparate treatment liability, not disparate impact liability. Senator Bentsen's bill passed the Senate but was dropped in conference. 119 Cong. Rec. 28644 (1973).
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Once again, Senator Bentsen reintroduced his bill, again referring to evidence of "arbitrary" age discrimination in federal employment such as training programs that are "off limits" to employees over the age of 45 and employers' harassing and pressuring older employees to retire. 119 Cong. Rec. 28644. This bill was ultimately enacted into law as part of the Fair Labor Standards Act Amendments of 1974. See Fair Labor Standard Amendments of 1974, Pub. L. No. 93-259, § 28(b)(2), 88 Stat. 55, 74-75. Senator Church, Chairman of the Senate's Special Committee on Aging, remarked on the Senate floor that the legislation would give the Civil Service Commission responsibility for enforcing the prohibition against age discrimination in the federal sector. 120 Cong. Rec. 4706 (1974). Senator Church commented that this enforcement power was important because of evidence received by his Committee that older employees had been "singled out in some agencies for an early exit from their Government jobs." Id. at 4706-07. The most recent evidence of "agism" to surface, Senator Church noted, was a "report that the Pentagon is seeking authority to force certain personnel in responsible positions to retire at age 55. Justification for such authority is made in terms of the ‘worsening' manpower problems of an aging work force." Id. at 4707. These comments reinforce the intentional nature of the discrimination to which the federal sector ADEA law was directed.
The legislative history on the federal sector ADEA provision contained in the House Report of the Education and Labor Committee, although scant, also supports the conclusion that the provision was aimed at eradicating intentional discrimination against federal employees based on age. The short passage in the House Report on the "nondiscrimination on account of age in government employment" provision included in the Fair Labor Standard Amendments of 1974, quotes the following text from President Nixon's 1972 message on aging:
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Discrimination based on age – what some people call ‘age-ism' – can be as great an evil in our society as discrimination based on race or religion or any other characteristic which ignores a person's unique status as an individual and treats him or her as a member of some arbitrarily-defined group. Especially in the employment field, discrimination based on age is cruel and self-defeating; it destroys the spirit of those who want to work and it denies the National [sic] the contribution they could make if they were working. H.R. Rep. No. 93-913 (1974), 1974 U.S.C.C.A.N. 2811, 2849. Discrimination based on evil motive directed to a person's unique status as an individual presents a quintessential disparate treatment claim. See Hazen Paper, 507 U.S. at 610 (a disparate treatment claim arises when "the employee's protected trait actually played a role in that [decisionmaking] process and had a determinative influence on the outcome") (emphasis added). The House Report thus made clear that Congress added new federal employment provisions to the ADEA for the purpose of prohibiting intentional age discrimination.
b. The Different Legislative Purposes of Title VII Show That Congress Did Not Intend the Federal Employment ADEA Provision to Include Disparate Impact Claims
This legislative history, which is so clearly concerned with eliminating coercive or intentional age discrimination in the federal government, stands in stark contrast to the legislative history of the provision of Title VII which protects federal employees from discrimination based on race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-16(a) ("Title VII's federal sector provisions"). Although Congress patterned § 633a(a) after Title VII's federal sector provisions, see Lehman, 453 U.S. at 163-64, its aim was markedly different. The report prepared by the House's Education and Labor Committee that accompanies the 1972 amendments to Title VII, which extended Title VII's protections to the federal government, shows a concern with eliminating "systematic discrimination" which results in a "disproportionate distribution of minorities and women throughout the Federal bureaucracy . . . ." H.R. Rep. No. 92-238, at 23
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(1971), reprinted in U.S.C.C.A.N. 2137, 2158-59. Congress cited statistical evidence showing that minorities and women are excluded from large numbers of government jobs, particularly at the higher grade levels, and criticized the Civil Service Commission for approaching employment discrimination as "primarily a problem of malicious intent on the part of individuals." Id. The Committee further alluded to the type of tests and requirements that the Supreme Court held unlawful under a disparate impact theory of employment discrimination in Griggs. The Committee stated as follows:
Civil Service selection and promotion requirements are replete with artificial selection and promotion requirements that place a premium on "paper" credentials which frequently prove of questionable value as a means of predicting actual job performance. The problem is further aggravated by the agency's use of general ability tests which are not aimed at any direct relationship to specific jobs. The inevitable consequence of this, as demonstrated by similar practices in the private sector, and, found unlawful by the Supreme Court, is that classes of persons who are culturally or educationally disadvantaged are subjected to a heavier burden in seeking employment. Id. While Congress embraced the disparate impact theory for Title VII claims, it did not do so for ADEA claims: "[w]hile the congressional sponsors of Title VII's federal-sector provisions wholeheartedly endorsed the Griggs disparate impact doctrine, the sponsors of the ADEA federal-sector provisions seemed to deliberately avoid saying anything that could possibly be construed as endorsing § 633a disparate impact liability." George O. Luce, Comment, Why Disparate Impact Claims Should Not be Allowed Under the Federal Employer Provisions of the ADEA, 99 Nw. U. L. Rev. 437, 469 (Fall 2004). These contrasting legislative histories compel the conclusion that the ADEA federal-sector provision does not imply a basis for disparate impact liability. While the language of 29 U.S.C. § 633a(a) tracks the language of 42 U.S.C. § 2000e-16(a), the legislative histories of the two statutes make clear that the disparate impact theory of liability recognized under §
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2000e-16(a), see, e.g., Talev v. Reinhardt, 662 F.2d 888, 891-92 (D.C. Cir. 1981), was not
intended by Congress to extend to the ADEA.
c. The Sole Decision Analyzing the Applicability of Disparate Impact Under the ADEA Is Inapposite and Does Not Survive the Supreme Court's Decision in Smith
The legislative history for § 2000e-16(a) also undermines the reasoning of the only court, to our knowledge, to analyze the § 633a disparate impact question.35 In Lumpkin v. Brown, 898
F. Supp. 1263, 1271 (N.D. Ill. 1995), the court recognized a disparate impact theory under § 633a
based solely on the fact that § 633a was enacted three years after the "well-publicized" Griggs
decision. The court was guided by Judge Easterbrook's dissenting opinion in Metz v. Transit
Mix, Inc., 828 F.2d 1202, 1220 (7th Cir. 1987), in which Judge Easterbrook relied upon the
RFOA provision to read disparate impact liability out of § 623. Judge Easterbrook had observed
that "‘[t]he ADEA was enacted in 1967, before the first of the disparate impact cases (Griggs, in
1971), so we cannot be confident that the [ADEA] adopts this method.'" Lumpkin, 898 F. Supp.
at 1271 (quoting Metz, 828 F.2d at 1216). The Lumpkin court found that the opposite reasoning
applied to § 633a – that is, that because § 633a was enacted after Griggs, § 633a should be
viewed as incorporating the disparate impact theory. As the contrasting legislative histories
described above demonstrate, however, it would in fact be erroneous to presume that Congress
35 Other courts have addressed whether a disparate impact theory is actionable under the ADEA in federal employment cases, but treated the cases as private sector cases for all relevant purposes, failing to analyze the sovereign immunity question or the separate and distinct nature of § 633a. See, e.g., Evans v. Atwood, 38 F. Supp. 2d 25, 29-30 (D.D.C. 1999); Arnold v. U.S. Postal Service, 649 F. Supp. 676, 679-81 (D.D.C. 1986), rev’d on other grounds, 863 F.2d 994, 998 (D.C. Cir. 1988) (not reaching issue of whether disparate impact theory extends to ADEA because merits did not support a finding for plaintiffs on their disparate impact claim). In Palmer v. United States, 794 F.2d 534, 538 (9th Cir. 1986), the Ninth Circuit assumed in dicta that a disparate impact claim would be available in an ADEA case against the federal government without analyzing the issue.
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incorporated disparate impact liability into § 633a from the mere fact that Griggs had been on the books for three years when § 633a was enacted. Congress certainly knew how to express an intent to incorporate disparate impact liability into an employment discrimination statute when it wanted to – it did just that in the Committee report that accompanies § 2000e-16. Conversely, Congress' silence on the matter in the text of § 633a and its legislative history show that Congress did not intend to incorporate disparate impact liability into § 633a.
Lumpkin also has no vitality after Smith. The Lumpkin court's reasoning consists entirely of its prediction that the Court of Appeals for the Seventh Circuit would recognize a disparate impact theory under § 633a, and that prediction is based entirely on Judge Easterbrook's dissenting opinion in Metz. 898 F. Supp. at 1271. However, the Supreme Court in Smith came to the opposite conclusion of Judge Easterbrook – that the RFOA provision supports reading disparate impact liability into, not out of, § 623. See Smith, 125 S. Ct at 1544. Smith stands for the proposition that the disparate impact claim under § 623(a) is predicated on § 623(a)(2) and the RFOA provision. Congress plainly decided to omit both of these provisions from the federal sector ADEA provision, § 633a. Therefore, the rationale of Lumpkin cannot survive Smith. Accordingly, § 633a cannot be construed to imply a right of action for disparate impact liability.
B. Defendants are Entitled to Summary Judgment Because Plaintiffs Have Presented No Statistical Evidence to Make a Prima Facie Showing of Disparate Impact
Even if this Court finds that sovereign immunity does not apply, defendants are entitled to summary judgment on plaintiffs’ disparate impact claim on the merits. To prove a prima facie case of disparate impact, a plaintiff must show that the challenged practice, although facially neutral, has a discriminatory effect on a protected group. See Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). In other words, a plaintiff must identify "the specific employment practice that
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is challenged," demonstrate that the practice in question caused an adverse impact on the protected group, and show that the statistical disparities are "sufficiently substantial" to raise "an inference of causation." See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95 (1988). Once plaintiffs establish a prima facie case, the burden shifts to the employer to produce evidence demonstrating a "business justification" for its employment practices. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 658-59 (1989) (noting that "at the justification stage of [] a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer") (citations omitted).
Plaintiffs fail to meet these burdens. Plaintiffs have presented no statistical evidence to make a prima facie showing of disparate impact. Statistics are usually the principal focus of a prima facie case of disparate impact. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988) ("evidence in these 'disparate impact' cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities"); Koger v. Reno, 98 F.3d 631, 639 (D.C. Cir. 1996) (in a disparate impact case, "the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants") (quotations omitted). The Supreme Court has held that plaintiffs not only must show that there are statistical disparities to establish a prima facie case, but they must "begin by identifying the specific employment practice that is challenged." See Watson, 487 U.S. at 994. "Once the employment practice at issue has been identified," a plaintiff "must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the [elimination] of [] jobs [] because of their membership in a protected group." Id.
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In support of their disparate impact claim, the plaintiffs contend that they can establish a prima facie case because:
The FAA, which operates 15 Offices and organizations (and even more lowerlevel divisions and services) across nine Regions, employs an estimated 47,329 people, including 16,858 Controllers in its three Air Traffic Services (Tower, Route, and Flight). See Ex. 9 at 29. However, the FAA targeted only one division – Flight Services – for a RIF, and as a result, an estimate 1,935 FS Controllers will be terminated from their federal employment on October 3, 2005. See Ex. 1 at ¶ 6. Of those FS Controllers, approximately 1,770 (92 percent) are 40 years of age older, and they are by far the oldest workforce within the FAA. See Ex. 1 at ¶ 6. This disparity in age will cause the FS Controllers to suffer a significantly disproportionate impact as a result of Defendants' discriminatory plan. Plaintiffs' Application for Preliminary Injunction at 100-01; see also First Am. Compl. ¶ 50. As demonstrated below, the mere allegation that 92% of AFSSs are over 40 years of age says nothing about the age of other employees at the FAA whose positions could have been outsourced or about whether a statistically significant disparity even exists. In this case, there are three distinct events leading up to the RIF and the impact of each can be separately measured. The first is the FAA's decision to designate certain activities as commercial and others as inherently governmental. The relevant statistical population at this stage encompasses all employees. The second selection practice is the FAA's determination of which commercial activities are feasible to outsource. The relevant population at this stage consists of all employees performing those activities deemed commercial. The third selection practice is the FAA's decision to compete. At this last stage, the relevant population consists of those employees performing activities that have been deemed commercial and feasible to outsource. It is well established that the burden falls upon the plaintiffs not only to identify which of the three practices they seek to challenge but also to measure the impact of each. See Watson,
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487 U.S. at 994. As the Supreme Court recently observed in Smith v. City of Jackson, __ U.S. __, 125 S.Ct. 1536 (2005):
[I]t is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Id. at 1545 (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989)) (internal quotations omitted) (emphasis in original). Here, as in Smith, the plaintiffs "have done little more than point out that the [RIF] at issue is relatively less generous to older workers than to younger workers." Id. They have not identified any specific employment practice that has an adverse impact on older workers. Nor have they attempted to identify the appropriate population for statistical comparison. Having failed to satisfy their burden, the plaintiffs cannot establish a prima facie case of disparate impact under the ADEA. Accordingly, this Court should grant defendants' motion for summary judgment. See Csicseri v. Bowsher, 862 F. Supp. 547, 574 (D.D.C. 1994) (entering judgment for defendant where plaintiffs failed to isolate and identify the specific employment practices which they believed caused discriminatory impact). Moreover, even if plaintiffs had met their burden of establishing a prima facie case of disparate impact by identifying the specific employment practice having a disparate impact upon them, and by presenting statistical evidence showing that the disparities are sufficiently substantial, neither of which have they done, defendants have successfully rebutted any such prima facie case by demonstrating that the challenged agency action is supported by legitimate business reasons. See section II.B supra.
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V. BECAUSE PLAINTIFFS' CLAIMED INJURIES ARE ENTIRELY COMPENSABLE OR WHOLLY SPECULATIVE, AND PLAINTIFFS FAIL TO ESTABLISH IMMINENT "EXTRAORDINARY" INJURIES, THE COURT MUST DENY INJUNCTIVE RELIEF Although plaintiffs have not shown a likelihood of success on the merits, the Court
should deny injunctive relief for two other reasons. First, plaintiffs are not entitled to injunctive relief because they have not demonstrated
any irreparable injury. Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (holding that the essential basis of injunctive relief in federal courts has "always been irreparable harm and inadequacy of legal remedies"); Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958) ("The key word in this consideration is irreparable.") (emphasis added). Indeed, a plaintiff's failure to show an irreparable injury is more than sufficient reason to deny a preliminary injunction. CityFed Financial Corp., 58 F.3d 738, 747 (D.C. Cir. 1995); Dodd v. Fleming, 223 F. Supp. 2d 15, 20 (D.D.C. 2002). Because plaintiffs' claimed injuries are compensable, non-imminent, or wholly speculative, these injuries, if any occur, are not irreparable. "Mere injuries, however, substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough." Va. Petroleum Jobbers Ass'n, 259 F.2d at 925; Moore v. Summers, 113 F. Supp. 2d 5, 24 (D.D.C. 2001).
Second, enjoining federal personnel actions, such as this one, is an available remedy only if plaintiffs show the "extraordinary" nature of the case and need for such relief. See Sampson v. Murray, 415 U.S. 61, 90 (1974); Jordan v. Evans, 355 F. Supp. 2d 72, 77 (D.D.C. 2004) (plaintiffs seeking injunctive relief in an employment discrimination action "must make ‘a more stringent showing of irreparable injury'"); Bonds v. Heyman, 950 F. Supp. 1202, 1212 (D.D.C. 1997). This case, however, presents commonplace injuries often found in changes to federal
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personnel plans. In short, plaintiffs have utterly failed to demonstrate even an irreparable injury, let alone meet their heightened burden under Sampson, and no injunction should issue.
A. Plaintiffs Will Not Suffer Any "Irreparable Injury" Plaintiffs must "substantiate the claim that irreparable injury is likely to occur," and "[b]are allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur." Wisconsin Gas, 758 F.2d at 674 (internal quotations and citations omitted, emphasis in original). As set forth below, plaintiffs cannot demonstrate that the claimed harms are irreparable injuries. Plaintiffs' claimed injuries fall within two categories, neither of which are irreparable as a matter of law. First, the bulk of plaintiffs' claimed injuries are inherently economic and therefore subject to compensation or corrective relief such that there is an adequate remedy at law because "economic loss does not, in and of itself, constitute irreparable harm." Id. Indeed, FAA agrees that if plaintiffs ultimately prevail they will not lose a dollar of pay, their retirement or pension credits or other federal benefits. See Williams Decl. ¶ 20 (explaining that FAA has the authority and ability to rectify each of the claimed economic injuries if plaintiffs were able to prevail on the merits). Second, plaintiffs' claimed injuries relating to the relocation of jobs with Lockheed are speculative and attenuated as opposed to being "both certain and great," "actual and not theoretical" and "of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm." Wisconsin Gas, 758 F.2d at 674 (internal quotations and citations omitted, emphasis in original). Finally, plaintiffs have not established that plaintiffs who accept employment with Lockheed will be harmed at all. Injunctive relief should therefore be denied.
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1. Because Plaintiffs' Claimed Economic Injuries are Compensable or Subject to Other Corrective Relief if Plaintiffs Prevail, Injunctive Relief Should Not Issue
Plaintiffs set forth a litany of alleged injuries flowing from the RIF.36 But most of those injuries have an inherently economic character, demonstrating that they are capable of compensation or other corrective relief should plaintiffs ultimately prevail. This is unsurprising. "It is practically universal jurisprudence in labor relations in this country that there is an adequate remedy for individual wrongful discharge after the fact of discharge . . . because the remedy by way of reinstatement and back pay is well established and is universally used." Garcia v. United States, 680 F.2d 29, 31 (5th Cir. 1982) (citation omitted). Indeed, an examination of plaintiffs' alleged injuries demonstrates that plaintiffs have adequate remedies through back pay, reinstatement, and other available remedies under the ADEA.
Plaintiffs point to "job losses," Pl. App. at 56, loss or reduction of retirement or pension benefits, id. at 41, 45, loss or reduction of annuities, id., loss of health insurance, id. at 42, 46, loss of cost of living adjustments, id. at 57, and loss of sick leave and holiday pay, id. Because these sorts of injuries are losses of "money, time and energy," they are capable of compensation, they are inherently economic. See Va. Petroleum Jobbers Ass'n, 259 F.2d at 925. For this reason, they are "[m]ere injuries" that "are not enough" to qualify as irreparable. See id.
Loss of wages or increased working hours has been held as not irreparable injury. See Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 367 (D.C. Cir.1999) (increasing
36 Here, given the nature of Lockheed’s agreement to the 95% of plaintiffs who have accepted Lockheed employment, it is questionable whether most plaintiffs will suffer any harm. See also Part II.A.3, infra. For example, employees eligible to retire with FAA may take the employment with Lockheed as well as enjoy their retirement pay, and receive two paychecks. Moreover, unlike employment with the FAA, which is restricted by statute to workers under the age of 56, new Lockheed hires may continue their employment.
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flight time of flight attendants while "eliminating attendants' per diem pay and hotel allowances" is "not irreparable") (citing Sampson, 415 U.S. at 90); see also E.E.O.C. v. State of New Jersey, 620 F. Supp. 977, 996 (D.N.J. 1985) (reduction of pay due to forced early retirement is not irreparable injury). Similarly, Judge Urbina recently rejected claims that irreparable harm occurred because of "reduced pensions" or that workers near retirement would need to work longer hours. Int'l Ass'n of Machinists & Aerospace Workers v. Nat'l Mediation Bd., 374 F. Supp. 2d 135, 142 (D.D.C. 2005). Even large losses of income that would likely lead to forced property sales or the loss of medical insurance benefits is not generally an irreparable injury. See, e.g., Morgan v. Fletcher, 518 F.2d 236, 239-40 (5th Cir. 1975) (reversing an injunction based on a reduced "salary represent[ing] 45% of [] family's income, a loss of which would probably lead to foreclosure of [family] home [and] the loss of medical insurance benefits" because harms were not irreparable). Likewise, being forced to pay costly insurance premiums, even if there is a claim that they are unrecoverable, has been held as insufficient to constitute irreparable harm. Carabillo v. Ullico Inc. Pension Plan & Trust, 355 F. Supp. 2d 49, 54-55 (D.D.C. 2004). Psychological or psychic harm due to lost employment is not an irreparable injury. Soldevilla v. Sec'y of Agriculture, 512 F.2d 427, 430 (1st Cir. 1975). The loss of reputation or career potential are equally insufficient to constitute irreparable injury. See Veitch v. Danzig, 135 F. Supp. 2d 32, 36 (D.D.C. 2001) (loss of salary and benefits and damage to professional reputation not sufficient to demonstrate irreparable injury).
Similarly, "the requisite irreparable harm" necessary for injunctive relief "is not established in employee discharge cases by financial distress or inability to find other employment, unless truly extraordinary circumstances are shown." Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983); Ekanem v. Health and Hospital Corp. of Marion County,
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589 F.2d 316, 321 (7th Cir. 1978) (concluding that the inability to obtain other employment is not irreparable harm because a terminated employee has an adequate remedy at law by way of monetary compensation). Here, plaintiffs have not established substantial financial harm that only injunctive relief could avoid. Instead, they have resorted to parading horribles of financial disasters that are patently speculative and unlikely to develop in the distant future, if ever. See Part II.A.2, infra (discussing the speculative nature of plaintiffs' claimed harms as a reason to deny injunctive relief).
Congress, through the ADEA, gave the court the authority to grant "such legal or equitable relief as will effectuate the purposes of this chapter" against FAA. See 29 U.S.C. § 633a(c)). Courts have repeatedly recognized that "purposes of the ADEA are to make persons whole for injuries suffered as a result of unlawful employment discrimination and to restore [those] persons to the position where they would have been if the illegal discrimination had not occurred." See, e.g., Stolzenburg v. Ford Motor Co., 143 F.3d 402, 407 (8th Cir. 1998) (citation and internal marks omitted); Villescas v. Abraham (Dep't of Energy), 285 F. Supp. 2d 1248, 1255 (D. Colo. 2003). Restoring all economic losses, as the ADEA allows, is by definition an adequate legal remedy to the plaintiffs' claimed economic harms.
The FAA's declaration buttresses the conclusion that plaintiffs' claimed injuries are "mere injuries" that have an adequate remedy at law that are "not enough" to qualify for injunctive relief. See Va. Petroleum Jobbers Ass'n, 259 F.2d at 925. The FAA affirms that it "has the authority and ability to make Plaintiffs whole should they prevail on the merits of this case subsequent to the RIF taking place on October 3, 2005." Williams Decl. ¶ 20. Indeed, the FAA confirms that each claimed economic harm plaintiffs list would be rectified by way of an appropriate ADEA award such that:
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the FAA would reinstate the Plaintiffs; restore wages lost during the time they were separated from FAA employment, including missed overtime, holiday and other premium pay as permitted by law, and locality pay increases that were awarded; restore annual leave and sick leave they would have accrued during the separation period; make the appropriate employer contributions to the applicable retirement systems, including to Thrift Savings Plan (TSP) accounts; allow Plaintiffs to make appropriate employee contributions to the applicable retirement systems, including TSP accounts and credit the time lost during the separation period towards their retirement, including creditable service towards the special retirement provisions for air traffic controllers known as "good time," if applicable. Plaintiffs would receive earnings/losses on both employee and employer contributions to TSP accounts for the separation period. Id. Plaintiffs therefore have an adequate remedy at law for all economic claimed economic harms. Finally, any harm to the plaintiffs who have chosen to work with Lockheed (and indeed those who have decided against such work)37 is brought about by their own independent choice. While plaintiffs' choices alter the economic impact the RIF, their choice to work with Lockheed changes the "temporary loss of income which may be recovered later [that] does not usually constitute irreparable injury" even "under traditional Rule 65 standards." See DeNovellis v. Shalala, 135 F.3d 58, 63-64 (1st Cir. 1998) (recognizing that an employees' independent choice of whether to accept a transfer merely alters the temporary loss of income or other damages that are recoverable if plaintiff prevails). The decision of the subset of plaintiffs that have foregone the opportunity to work with Lockheed is, at bottom, simply a choice to incur a larger "temporary loss of income" or other benefits should they prevail. Notably, Lockheed's bid proposal guaranteed employment for every plaintiff that applied. Because the Court can fashion corrective
37 In fact, by declining such offers of employment with Lockheed they have not met their duty to mitigate harm.
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relief that is more than sufficient to ameliorate plaintiffs' economic harms, if any, there is no reason to issue injunctive relief.
2. Because Plaintiffs Rely Upon Speculative or Attenuated Injuries, Injunctive Relief is Inappropriate
Injunctive relief should be denied because plaintiffs' application and exhibits set forth a myriad of speculative, attenuated, and hypothetical injuries that will not occur for years, if ever.
First, the Court should note that the transition to Lockheed is phased-in and that Lockheed has expended tremendous efforts on the complicated plan to take over these positions. The phase-in period will allow Lockheed to gear-up to take over responsibility of these job functions leading up to the effective date of the RIF, while simultaneously allowed the FAA to gear down and cease making long term investments in the dated system; this process has been ongoing for about seven months already. Courain Decl. ¶¶ 12, 31. The phase-in period involves "facility and operational assessments of all current AFSS system elements; Human Resources ("HR") activities relating to transition of the current FAA workforce to private employment; leasing and construction of the new Hub facilities; and continuing integration and customization of the FS21 system." Id. ¶ 32. The chief difference starting October 4, 2005, which is when the phase-in period ends and the transition period begins, is only that the employees will report to Lockheed, not FAA, in the same locations while receiving the same pay. Id. ¶ 25. The transition period will ultimately see a reduction in the number of existing facilities from 58 to 3 hubs and 17 other refurbished facilities that are in locations where existing facilities are located. Id. ¶ 19. While "[m]ost of the specialist staffing reduction will occur during transition as [Lockheed] close[s] the 41 facilities" that are not being retained, "[t]hat process is scheduled to commence on April 1, 2006," id. ¶ 29 (emphasis added), – approximately six months after the RIF occurs.
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Second, Plaintiffs themselves place the potential harms they could face under the rubric of "a future plagued by uncertainties," See Pl. App. at 61 (emphasis added), although to describe these injuries as "uncertain" is generous. Injunctive relief is available only in cases of "certain and great" harms that are "actual not theoretical." See Wisconsin Gas, 758 F.2d at 674. Plaintiffs cite no authority for the proposition that uncertainty is a certain harm.
Instead of setting forth real instances of harm that are imminent and flow directly from the October 3, 2005 RIF, plaintiffs rely on theoretical harms. Plaintiffs point to possible changes in parent care in nursing homes or child care issues such as "years rebuilding a support network" and possible harms that might result from finding "a new therapist" or leaving behind "particularized medical and hospital-specific programs." Pl. App. at 62. Plaintiffs even go so far to speculate on "death or relapse" as harms or the possibility that plaintiffs' side businesses will fold at some point in the distant future if plaintiffs agree to relocate to work with Lockheed. Id. at 62-63. Plaintiffs even vaguely allude to damages to national security. Id. at 64. None of these harms are "certain" or "actual" as required by Washington Gas, 758 F.2d at 674. None of these harms are of such "imminence" that they are directly tied to the October 3, 2005, agency action as required by Washington Gas. Id. Furthermore, plaintiffs' reliance on the lack of guaranteed employment, and their claim that after "three years of promised employment" Lockheed could terminate their employment, Pl. App. at 108 (emphasis added), fall within the same category of speculative, non-imminent harm that injunctive relief is an improper remedy to guard against.
Plaintiffs notably fail to allege when these harms flowing from relocation will occur, or whether they will occur at all, with respect all plaintiffs. Plaintiffs' omission is understandable given that such claimed injuries are wholly removed from the simple fact that starting on October 4, 2005, the only change will be that plaintiffs’ employer will be Lockheed and not the FAA.
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Because plaintiffs' alleged harms are so attenuated and disconnected from the RIF after October 3, 2005, they are not irreparable and do not support an injunction.
Indeed, Judge Huvelle recently rejected similar arguments that attenuated or anticipated "life choices" that might flow from a challenged action constitute irreparable harm. See Ass’n. Of Flight Attendants-CWA v. Pension Benefit Guaranty Corp., 372 F. Supp. 2d 91, 100-01 (D.D.C. 2005). Plaintiffs in Association of Flight Attendants sought an injunction to prevent defendants from instituting proceedings that would have involuntarily terminated the flight attendants' pension plan. Similar to the sort of claimed injuries in the case at bar, the flight attendants cited "significant life choices that cannot easily be reversed" including "relocating to a new residence" due to lower pension income, and decisions to resign that would cause them to lose seniority that could not be easily fixed or where it "would be difficult to reinstate" plaintiffs. See id. Judge Huvelle concluded that such "life choices" and "economic injuries" are not irreparable injuries. Id. at 101 (citing Washington Gas, 758 F.2d at 674). Judge Huvelle reasoned that such "anticipated ‘injuries documented on this record – the forced sale of a house, a boat or stock [] do not rise to the level of ‘irreparable' harm necessary to warrant the extraordinary remedy of a preliminary injunction.'" Id. at 101 (quoting Boivin v. U.S. Airways, Inc., 297 F. Supp. 2d 110, 118-19 (D.D.C. 2003)) (emphasis added). Furthermore, Judge Huvelle discounted many claimed injuries because they were not "sufficiently imminent to warrant a preliminary injunction." Id. Plaintiffs' claimed injuries here are on par with the attenuated, economic injuries that Judge Huvelle found insufficient to grant injunctive relief.
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3. Because Of Their Decision To Accept Employment With Lockheed, The Vast Majority of Plaintiffs Will Suffer No Appreciable Harm And May In Fact Benefit From The RIF
A careful examination of the benefits of employment with Lockheed casts serious doubt on Plaintiffs' assertions that the RIF will cause even mild economic harm.
a. The RIF Entails No Massive "Job Losses" Because Plaintiffs Overwhelmingly Accepted Employment
"Of the approximately 2300 FAA employees who were in the incumbent AFSS workforce when [Lockheed] began the phase-in, 2119 applied for employment with Lockheed Martin and received offers. Of those offers, 2018 were accepted and only 70 were declined." Courain Decl. ¶ 33. Thus, over ninety-five percent of current FAA employees have accepted job offers from Lockheed. It is therefore demonstrably incorrect that the RIF entails "massive job losses," as plaintiffs claim. Pl. App. at 56. Because there is a phase-in transition to Lockheed's plan of consolidation, "[m]ost of the specialist staffing reduction will occur during transition" after the 41 phased-out facilities close, which "is scheduled to commence on April 1, 2006" roughly six months after the October 3, 2005 RIF. Courain Decl. ¶ 29. Hence, the closure of facilities is not “imminent.”
b. Plaintiffs Receive Substantial Retention Bonuses and Other Benefits in the "Land Soft Package"
All plaintiffs accepting employment received substantial bonuses from Lockheed. Lockheed provided a minimum $5,000 signing bonus for every person agreeing to work for Lockheed. Courain Decl. ¶¶ 26-27. Plaintiffs currently working at locations that will eventually close receive an additional $5,000 completion bonus. Id. ¶ 26. Moreover, plaintiffs choosing to relocate receive an additional bonus of 20% of their base compensation. Id. ¶ 27. These bonus payments are only one aspect of the generous benefits plaintiffs are entitled to after the RIF.
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Lockheed agreed to match current incumbent salaries, including locality pay increases offered by the federal government, id. ¶ 25, and advanced each incumbent 40 hours of sick leave on the first day of employment and the right to accrue vacation at the rate identical to the government rate. See Neill ODRA Opinion at 23 (describing Lockheed proposal). Additionally, the Lockheed proposal provides a 401K retirement plan. Id. Each specialist will also be eligible to share in up to 20% of the "award fee" that Lockheed will be eligible to receive from the FAA for successful contract performance. Courain Decl. ¶ 27. Lockheed will provide every specialist with a laptop computer valued at $2,400. Id. ¶¶ 26-27. Lockheed's offer also will provide plaintiffs 100% tuition reimbursement and corporate career opportunities with Lockheed available to all employees. Finally, relocating plaintiffs will be entitled to a relocation package from Lockheed totaling up to $50,000, which includes broker registration, trips to find new homes, temporary living expenses, closing costs on real estate transactions, moving household goods, a temporary allowance at the new location, and spousal job assistance. Id. ¶ 27; see also Neill ODRA Opinion at 23 (describing Lockheed's proposal). Finally, as opposed to continued employment with the FAA which has a statutory age restriction, plaintiffs may continue their employment with Lockheed beyond the age of 56.
This generous package, which plaintiffs omit in their claims of harm, plainly can offset any economic harms they would incur. Plaintiffs stand to gain a financial advance by signing-on with Lockheed, as well as being able to collect federal retirement benefits, as evidenced by the greater than 95% acceptance rate for incumbents.
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c. Similar Harms Would Have Occurred Under The RIF Option That Plaintiffs Supported, But With Larger Numbers Of Relocations And Less Compensation
Plaintiffs' reliance on relocation and consequential harms flowing from consolidation of offices is undermined by their own proposal. Plaintiffs themselves acknowledge that "[a]ll of the internal and external proposals that were available to the FAA . . . would have consolidated the AFSS" offices. Pl. App. at 88. While Lockheed's proposal had 3 hub locations and 17 others, the MEO proposal, which plaintiffs say should have been accepted instead, "proposed an aggressive consolidation down to four facilities." Id. at 88-89. Thus, under plaintiffs' own MEO proposal, relocations, and the speculative harms plaintiffs' allege, likely would have occurred in far greater numbers than under the Lockheed plan. Relocation was therefore inevitable under any scenario once the FAA recognized that, whether the offices were privately or publicly run, there were simply too many.
4. The Absence Of Compensatory Relief Under The ADEA Provides No Basis For Injunctive Relief
Plaintiffs' cite the lack of compensatory damages under the ADEA as constituting the absence of an adequate remedy at law. Pl. App. at 103-04. But the absence of compensatory damages (presumably damages for emotional distress) cannot be a basis to enter injunctive relief for two reasons.
First, plaintiffs’ argument is inconsistent with the limitations on injunctive relief in employment situations. Plaintiffs' argument contradicts the principle that injunctive relief may only issue in employment cases upon a showing that the case is "extraordinary." See Sampson, 415 U.S. at 90. If plaintiffs' argument were correct, then an ADEA plaintiff would be entitled to injunctive relief in every case upon an allegation of age discrimination. After all, in each age
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discrimination case, the ADEA proscribes compensatory relief. Similarly, injunctive relief would necessarily issue in other discrimination cases, because it would never be certain that Title VII's $300,000 limit on compensatory damages would make a plaintiff whole. Plaintiffs' argument proves too much. The very fact that injunctive relief in employment cases is exceedingly rare, and not the rule, demonstrates the fallacy of plaintiffs' argument.
Second, Congress chose the remedial measures in the ADEA that included back pay, front pay, reinstatement, promotion, etc., but not compensatory damages. See 29 U.S.C. § 633a. In fact, Congress went so far as to limit the court's "jurisdiction to grant such legal or equitable relief" to means that would "effectuate the purposes of this chapter." Id. (emphasis added). Having provided for compensatory damages in Title VII, Congress evidently considered the emotional stress associated with discrimination based on age to be too attenuated from the central "purpose" of the legislation to merit corrective action. Consequently, the unavailability of compensatory relief under the statute cannot justify a preliminary injunction.
B. Plaintiffs Have Not Satisfied The Heightened Test For Preliminary Injunctive Relief That Applies In Cases Involving Federal Personnel Actions
In Sampson v. Murray, the Supreme Court established a heightened standard for injunctive relief in federal personnel cases, like the case at bar. 415 U.S. at 83. Sampson involved a claim by a probationary federal employee that her proposed discharge was not in accordance with civil service procedures. The employee sought a preliminary injunction prohibiting any further action until the completion of her administrative appeal. The requested injunction issued based upon perceived irreparable injury to both the employee's income and reputation. The Supreme Court reversed. It held that the alleged injuries fell "far short of the
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type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction
in this type of case." Id. at 91-92.
Sampson recognized that it would be the exceedingly rare case where injunctive relief
was appropriate to halt federal personnel decisions. Id. at 92 n.68 ("Such extraordinary cases are
hard to define in advance of their occurrence."). Sampson also imposed a mandatory, heightened
burden on the plaintiffs to demonstrate that a case was sufficiently "extraordinary" to overcome a
court's reluctance to enjoin federal employment decisions. Id. at 83 ("[T]he Court of Appeals
was quite wrong in applying to this case the traditional standards governing more orthodox
‘stays'"). Judicial reluctance to impose injunctive relief stems from three principles: (i) the
availability of the administrative process to remedy claims regarding federal employment, (ii) the
fact that "the Government has traditionally been granted the widest latitude in the ‘dispatch of its
own internal affairs,'" and (iii) a general unwillingness to enjoin any employment decisions. Id.
at 83-84. Thus, plaintiffs' burden is to demonstrate irreparable harm that is "sufficient in kind
and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases."38 Id.
38 Sampson was not a discrimination case and the D.C. Circuit has yet to address whether Sampson’s higher standard extends to cases that involve claims of discrimination. See Wagner v. Taylor, 836 F.2d 566, 576 n.66 (D.C. Cir. 1987) (declining to answer the question). But several district courts in this Circuit that have considered the issue in recent years have indicated that the more stringent Sampson standard applies to all employment cases against federal defendants where injunctive relief is sought. See Jordan, 355 F. Supp. 2d at 77 (plaintiff “must make ‘a more stringent showing of irreparable injury’); Bonds, 950 F. Supp. at 1212 (“this court finds that a more stringent showing of irreparable injury is required when a plaintiff, even in a Title VII case, seeks a preliminary injunction against the federal government in the personnel area”). Indeed, plaintiffs’ failure to meet the normal injunctive relief standard means that the Court need not address whether the Sampson standard applies, see, e.g., Moore, 113 F. Supp. 2d at 18 (declining to decide whether Sampson applies), even though plaintiffs’ brief acquiesces in its application. See Pl. App. at 102-03.
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Finally, the Sampson Court noted that many commonly claimed injuries would not support injunctive relief of a federal employment action. Sampson therefore held that commonly occurring harms caused by "external factors" often associated in the discharge of employees that are "not attributable to any unusual actions relating to the discharge itself -- will not support a finding of irreparable injury, however severely they may affect a particular individual." Id. at 92 n.68 (emphasis added) (citing "insufficiency of savings or difficulties in immediately obtaining other employment" as illustrative examples). The kinds of harms plaintiffs here rely on are harms to pensions, retirement credits, loss of leave, etc., that are clearly economic in nature and compensable. See Pl. App. at 106-11. Sampson identified these kinds of economic harms as insufficient to enjoin federal employment decisions because they are not extraordinary.
Plaintiffs, however, principally rely upon the reasoning of Gately v. Comm. of Mass., 2 F.3d 1221 (1st Cir. 1993), to support their claimed entitlement to injunctive relief for their vague claims that they will be harmed because their skills will stagnate or that they will lose their remaining working years. See Pl. App. at 106-07. Gately does not help plaintiffs. In Gately members of the Massachusetts Department of State Police sought a preliminary injunction against the enforcement of a mandatory retirement age. The First Circuit affirmed a preliminary injunction partially on the grounds that the plaintiffs were not seeking interim injunctive relief pending completion of an administrative process. Gately, 2 F.3d at 1233. But the plaintiffs in Gately, in stark contrast to plaintiffs here, did not have any administrative remedies available to pursue their claims. Id. at 1233 & n.8. The First Circuit specifically distinguished Gately from "those cases in which . . . [it had] applied a Sampson heighten standard" based upon a plaintiff's failure to exhaust available administrative remedies, as opposed the one before it involving a plaintiff with no administrative remedies. Id. (citations omitted). Plaintiffs here have
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administrative remedies available to raise their ADEA claims relating to the RIF after it occurs to either the MSPB or EEOC. They also can attempt to appeal the Administrator’s order to the courts of appeals. Indeed, plaintiffs unsuccessfully challenged the FAA's award of the contract to Lockheed to the Board of Contract Appeals and could appeal that decision to the Circuit Court. Plaintiffs could have continued their administrative challenges but instead filed for injunctive relief six days after their initial challenge was rejected when FAA's Administrator adopted the Neill ODRA Opinion. In any event, the administrative remedies available to plaintiffs, individually or collectively, precludes their reliance upon Gately's limited holding.
Plaintiffs' ADEA challenge must establish "extraordinary circumstances" to justify preliminary injunctive relief of a federal employment decision. Jordan, 355 F. Supp. 2d at 82 (citation and internal marks omitted). Citing Bonds, plaintiffs suggest that the subjective importance of the FAA positions to the plaintiffs meets the Sampson standard. Pl. App. at 112-13. This is wrong. Plaintiffs place great weight on the Bonds case notwithstanding its key factual differences that render its holding inapplicable here. First, in Bonds Judge Lamberth granted interim injunctive relief, but he did so based on a well-developed record and after discovery had concluded. See Nichols v. Agency for Int'l Development, 18 F. Supp. 2d 1, 5 (D.D.C. 1998) (distinguishing Bonds). These factors are clearly lacking here. Second, it is plain from Judge Lamberth's opinion that the Court concluded that injunctive relief was warranted because the RIF challenged affected a single employee, and because of that employee's unique circumstance. Bonds, 950 F. Supp. at 1215 (discussing a "58 year-old woman" who worked at the Smithsonian "for nearly 40 years" with "no college education, and worked her way up from a typist to a program analyst" but who would not likely "ever find work approaching what she now does, if she could find work at all"). Plaintiffs here do not remotely resemble the plaintiff in
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Bonds. Judge Lamberth's ruling is clearly limited to the unique facts presented there and does not indicate an injunction is appropriate here.
Plaintiffs therefore have not demonstrated that this is the type of "extraordinary case" whose circumstances "so far depart from the normal case" of injury that a grant of injunctive relief would be appropriate. Sampson, 415 U.S. at 92 n.68 (quoted in Bonds, 950 F. Supp. at 1211). If anything this case presents the ordinary, not extraordinary, case. The litany of claimed harms in plaintiffs' brief typify the "common" harms caused by "external factors" that would occur in virtually every case of a change in federal personnel plan.39 Id.; see also Veitch, 135 F. Supp. 2d at 36 (noting that loss of salary, benefits and to reputation are "no more than are typical in instances of the termination of any government employee"). The Supreme Court has already held that these kinds of harms do not entitle one to injunctive relief. See id. Indeed, in Pollis v. New School for Social Research, the District Court for the Southern District of New York analyzed a challenge to an employer's mandatory retirement requirement system and concluded that injunctive relief would only be appropriate where "the resultant non-economic effect upon the employee of the employer's adverse action must have about it an extra dimension which distinguishes the case from those of all other employees similarly situated." 829 F. Supp. 584, 601 (S.D.N.Y. 1993). Applying a lower standard "would open the floodgates to preliminary injunctions in a manner that . . . [the Supreme Court concluded] is contrary to law." Id. The
39 Plaintiffs list the claimed harms as: (i) the statutory remedies under the ADEA are insufficient, Pl. App. at 105; (ii) there would be “no . . . positions . . . to return to,” id. at 105-06; (iii) loss of skill level, id. at 106; (iv) loss of remaining working years due to intervening retirement eligibility, id.; (v) loss of early retirement credits, id. at 107; (vi) loss of federal employment and relocation, id. at 108-09; (vii) harm to pension, retirement, or benefits, id. at 109-11; and (viii) the subjective importance of their jobs, id. at 112-13.
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plaintiffs' claims do not rise to an extra dimension that distinguishes their situation from ordinary cases where employees are terminated.40 VI. ENJOINING THE RIF WOULD IMPOSE A SUBSTANTIAL HARM ON THE FAA
AND LOCKHEED, AND WOULD SEVERELY HARM THE PUBLIC INTEREST Entering an injunction would substantially harm both FAA and Lockheed and would be contrary to the public interest. Therefore, injunctive relief should be denied. See generally Serono Labs, 158 F.3d at 1317-18. A. Both The Federal Defendants And Lockheed Would Be
Substantially Harmed If Injunctive Relief Were Granted Plaintiffs' assertions that neither the FAA nor Lockheed will suffer substantial harm are demonstrably incorrect. Pl. App. at 113-16.
1. FAA Would Suffer Substantial Monetary Harm If An Injunction Issued The FAA has substantially conformed its operations to the plan for Lockheed to take over operations as of October 4, 2005. Consequently, "the FAA has refrained from making any improvements for the past two years in anticipation of the contract award." Kansier Decl. ¶ 23. Because the AFSS system has long been scheduled for phase-out at this time, the FAA has not expended the long-term upkeep costs that would have been necessary to continue to maintain the AFSS system as it currently operates. Indeed, such funds are not available: the FAA has "no money in the proposed budget of the agency for making capital improvement in the AFSS environment because of the anticipated transition to a new service provider." Id.; see also Courain Decl. ¶ 50 (discussing the "outmoded" and "not being adequately maintained" system
40 Plaintiffs point to loss of employment by the federal government that the RIF will entail. While that may qualify as an injury, loss of federal employment alone cannot be irreparable because the ADEA itself provides reinstatement as a possible remedy that the Court could order, meaning that an adequate remedy at law exists.
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currently employed by FAA and that "FAA is naturally counting on Lockheed Martin to address current system issues as soon as we assume responsibility for the AFSS system on October 4"). FAA has also expended large efforts "to place affected employees and [has] been delaying release dates for those selected for other positions [in the FAA] as long as possible" so that the timing of the release of employees to other jobs would "coincide with an October 4, 2005 transition date." Sheridan Decl. ¶ 14.
Enjoining the RIF will force the FAA to pay Lockheed under its contract and also to pay independently to maintain an outdated and inefficient system. Kansier Decl. ¶ 23 ("A suspension of the transition to Lockheed Martin would produce substantial hardship to the FAA in terms of lost efficiency . . . and millions of dollars."). As stated in the Kansier Declaration, "the FAA is already liable to Lockheed Martin for its Phase-in work (approximately $5 million)." Id. These monetary costs to FAA of delaying the RIF are therefore substantial and do not even include, the opportunity costs of lost "anticipated savings" that the gains in efficiency would create for FAA. Id. ¶ 25. Over a ten year period the projected savings of the "public/private competition is 2.2 billion [U.S.] dollars over what the existing service would otherwise cost." Id.
2. FAA Would Suffer Substantial Programmatic Harms if an Injunction Issued
The Supreme Court and the D.C. Circuit have stressed the importance of granting the government "the widest latitude in the dispatch of its own affairs." Sampson, 415 U.S. at 83; Bishop v. Wood, 426 U.S. 341, 349 (1976) ("The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies."); Andrade v. Lauer, 729 F.2d 1475, 1483 (D.C. Cir. 1984) (noting the courts' "general reluctance to interfere in the finely-articulated statutory/regulatory scheme governing federal personnel
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practices"). Obviously, any delay would adversely constrain the latitude conferred by these doctrines on the FAA to structure its personnel affairs and in fulfilling its mission. Indeed, delaying the implementation of the RIF would prevent the agency from completing the reorganization, and harms the FAA in several ways.
It is the general policy of the United States Government and the FAA to "rely on the private sector for needed commercial services" because they are "subject to the forces of competition" that will "ensure the American people receive maximum value for their tax dollars." See OMB Circular A-76, ¶ 4. The FAA has been considering competitive sourcing of these positions for years and has devoted extensive resources in soliciting and then considering the various bids, including plaintiffs' in-house bid. Over three years ago, the FAA began studying the feasibility of competitive sourcing the AFSS positions. See Feasibility Study, Federal Aviation Administration (July 12, 2002). This review culminated in a FAA announcement of a public-private competition for these services on December 19, 2003. To accomplish its mandate under OMB Circular A-76, FAA conducted a comprehensive solicitation process. The FAA studied these proposals for a number of months before announcing that it had awarded the contract to Lockheed in accordance with the established solicitation criteria in February 2005. Enjoining the long-planned transition to Lockheed will harm the FAA by failing to recognize: the FAA's considered judgment to award the contract to Lockheed, the extensive latitude FAA enjoys in contracting decisions, and the fact FAA (and Lockheed) have substantially relied upon the contract in ordering its affairs. See Sheridan Decl. ¶ 14; Kansier Decl. ¶ 21.
The Court should also carefully note that Judge Neill's opinion that explained some of FAA's harms when he rejected the plaintiffs' challenge to the bid contest. In so doing, he made specific findings of fact that FAA's stated goals in soliciting competition for the AFSS positions
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were to (i) "deliver timely and accurate information to support safe and efficient flight;" (ii) "ensure quality services are delivered while carrying out the mission of the AFSS;" (iii) "ensure customer needs are met;" and (iv) "achieve significant process improvements to lower costs and maximize operational efficiency of the AFSS." See Neill ODRA Opinion at 5 (Finding 2) (emphasis added). Delaying the RIF will therefore inhibit the attainment of these goals and will require the FAA to maintain, and the public to endure, an outdated and inefficient system that is not the best value for the taxpayers. Kansier Decl. 23. Indeed, the FAA was required under the solicitation to accept the "‘best value,'" which is defined as "‘the combination of the impact of the overall benefits, risk, and cost for the delivery of the effective flight services to support safe and efficient flight.'" Id. at 8 (Finding 16). Judge Neill upheld the FAA's decision to accept Lockheed's bid for these services, noting that the agency decisionmakers "undertook a careful review" of the reports during the RIF process and that the strengths and weaknesses of the various proposals accurately identified and properly considered by FAA officials. Id. at 98-101.
A preliminary injunction will therefore seriously harm the FAA's effort to comply statutory mandates and the President’s Management Agenda by "delay[ing] the timeline for a systematic upgrade of the AFSS system" and imposing a system that is less efficient and effective than the one chosen by FAA officials. See Sheridan Decl. ¶ 14 ("The system to be put in place by Lockheed Martin represents a more efficient one, with much better technology and reliability than the current system."). Id. An injunction preventing the transition would "present a considerable operational challenge to the FAA" and "would have a substantial adverse effect on the technological efficiencies that are forecasted to be gained." Id.; see also Am. Fed'n of Gov't Employees v. OPM, 618 F. Supp. 1254, 1265 (D.D.C. 1985) (refusing to enjoin OPM regulations and recognizing "it would neither be equitable nor in the public interest to force a return to the
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old regulations" because an injunction would "cause yet another disruption in the orderly administration of the government" and because the new system "reflect[s] a conscious policy decision").
Likewise, Lockheed, which has been in the midst of the phase-in period of the contract for seven months and has now more closely examined the existing technology FAA uses, fully agrees that "both the facilities and the technology supporting the current AFSS system are urgently in need of modernization" and that the technological and facility upgrades will "provide substantial process and safety improvements to users of the NAS, all at a much lower cost than under the current system." Courain Decl. ¶ 41. These benefits will be on hold should an injunction issue, harming FAA and the public interest.
The FAA (and the public) will therefore be denied the programmatic benefits of the transition to Lockheed and in the efficiencies that Lockheed will provide in providing these services. Kansier Decl. ¶ 23 ("the increased efficiencies and better service from the new automation and improved physical facilities would be unattainable" in the absence of the Lockheed contract). Even plaintiffs' MEO proposal recognized the need for consolidation and the efficiencies it would give the FAA, and "proposed an aggressive consolidation down to four facilities." Pl. App. at 88-89. Any injunction would harm FAA now because it would derail the consolidation timetable for both the length of the injunction and for the period afterwards when FAA has to again transition to Lockheed under the contract. Courain ¶ 42 (stating that a suspension of phase-in and transition activities for any significant period "would require substantially more time to complete those activities than the time that currently remains in [Lockheed's] schedule" and "would actually negate much of the effort already expended"). This
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is a long-planning and highly structured transition that will be thrown into complete disarray by an injunction at this late stage, harming all concerned.
3. Any Delay to the RIF Would Harm Lockheed's Phase-In/Transition Plan In addition to substantial harm to the FAA, injunctive relief would also harm Lockheed, the successful bidder for the positions covered by the RIF, although many of these costs will in turn be passed along to the FAA and the tax payers. The harm caused by an injunction would be manifested by (i) losses to what Lockheed has already expended in the current phase-in period and (ii) lost facilities and leases. First, the "seven months of intensive preparation to transition the federal workforce" during the phase-in period is drawing to a close. Courain Decl. ¶ 43. Lockheed has been intensively planning for this transition that "involves almost 2000 FAA employees who are scheduled to become Lockheed Martin employees on October 4, 2005." Id. Lockheed's efforts would essentially be "wasted" because if Lockheed resumed the phase-in activities "after any substantial hiatus, [Lockheed] would be forced to restart the entire HR process from the beginning in order to identify the persons still in the incumbent workforce at that time, resolicit applications from those employees, assess the new circumstances of each employee, and make new offers on a new timeline." Id. In addition, there are approximately 190 Lockheed employees and another 60 employees of Lockheed's subcontractors actively working on the phase-in process who are slated to support the transition. Id. ¶ 46. About 100 of these employees "are particularly critical to the continued success of the program" because they participated in Lockheed's preparation of the winning proposal to FAA and have intimate knowledge of the complicated phase-in and transition plans. Id. But Lockheed could not keep these employees idled during an indeterminate injunction and
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"would have no choice but to attempt to reassign most of the 190 Lockheed Martin employees to other duties and projects, some of them in other Lockheed Martin units." Id. ¶ 47. Losing this knowledgeable and experience workforce "would be devastating to Lockheed Martin's capability to complete the phase-in and transition activities on anything like the current schedule." Id. ¶ 48.
Second, Lockheed has "made lease commitments for the three Hubs for the entire contract period of performance, and ha[s] expended substantial sums to construct and outfit those facilities." Id. ¶ 44. And "a lengthy suspension of contract performance would force [Lockheed] to surrender the leases and begin the leasing and construction process anew after a future resumption of work under the contract." Id. Lockheed would therefore "likely lose the leases on the Hub facilities" that "will have a significant impact on [Lockheed's] transition plan." Id. ¶ 45. This would make resumption of the phase-in and transition plans all the more costly for Lockheed, FAA, and the taxpayers and would harm each in turn.
Lockheed has also already "conducted extensive education and outreach efforts, including face-to-face meetings, with the general aviation community to introduce [Lockheed's] new system capabilities and to explain how the AFSS system will operate in the future." Id. ¶ 53. An indefinite suspension caused by an injunction would therefore lead to "uncertainty and confusion in the general aviation community about the future of the AFSS system" and "would undermine confidence in the system.” Id.
"In sum, the combination of the need to replicate the HR process, rehire and retrain the existing contractor workforce, and reestablish the Hub facilities that are the core of the new system would mean that [Lockheed] would largely have to start over again if . . . asked to resume work after a substantial period of work stoppage under a court order." Id. ¶ 49. Lockheed "estimate[s] that [they] would require at least eight months to resume and complete the phase-in
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and 26 months to fully implement [the] solution and complete the transition." Id. In turn, these harms would be placed squarely upon the backs of both the FAA and the public-at-large to the detriment of both.
B. The Public Interest Would Be Harmed By Enjoining The RIF The public interest does not favor the issuance of a preliminary injunction in this case. Many of the considerations of harm to the FAA detailed above demonstrate that injunctive relief would harm the public interest. Indeed, requiring the FAA to retain an outdated and inefficient personnel system would be antithetical to the public interest and wasteful of public resources. This conclusion is magnified given the fact that Judge Neill has already determined that the FAA properly awarded this contract to Lockheed because it represented the "best value." Moreover, if the Court were to grant injunctive relief in this case, it would establish a harmful precedent in Government personnel cases involving reorganizations within agencies for the sake of efficiency. The kinds of harms plaintiffs allege in this case plainly are implicated in virtually every change to a federal personnel system. To order injunctive relief under the circumstances of this case would curtail agency flexibility and federal agencies' directive under OMB Circular A-76 to guard the public fisc. Thus, injunctive relief would deter agency efforts to try to fashion solutions to duplicative operations. The public interest would not be well-served by such a result and would send a message to government agencies.41
41 It is patent that the government's and Lockheed's injuries – in contrast to plaintiffs' – are truly irreparable. Given plaintiffs' admission that they will be unable even to post more than a nominal bond, Pl. App. at 118-120, it is very unlikely that plaintiffs would be able to repay the government and Lockheed for the losses sustained as a result of the injunction. For the consequences of that injunction upon the FAA, Lockheed, and the public interest, plaintiffs seek to be literally irresponsible.
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CONCLUSION

For all of the foregoing reasons, defendants respectfully request that the Court grant

judgment in favor of defendants on all of plaintiffs' claims and deny plaintiffs' Application for

Preliminary Injunction.

Dated: August 23, 2005

Respectfully Submitted,

PETER D. KEISLER Assistant Attorney General

KENNETH L. WAINSTEIN United States Attorney

STUART A. LICHT Assistant Branch Director

SHERYL L. WILLIAMS MICHAEL DOHERTY NATHAN TASH Office of the Chief Counsel Federal Aviation Administration

/s/ Marcia Berman BRIAN G. KENNEDY (D.C. Bar 228726) MARCIA BERMAN (PA Bar No. 66168) TIM H. NUSRATY (D.C. Bar 467041) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7204 Washington, D.C. 20530 Tel.: (202) 514-3330 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov

Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on August 23, 2005, a true and correct copy of the foregoing Defendants' Combined Opposition to Plaintiffs' Application for Preliminary Injunction and Memorandum of Law in Support of Their Motion to Dismiss and Motion for Summary Judgment was served upon plaintiffs' counsel of record at the address listed below:
Via ECF:
Joseph D. Gebhardt GEBHARDT & ASSOCIATES, LLP 1101 17th Street, NW Suite 607 Washington, DC 20036-4718 (202) 496-0400 Fax: (202) 496-0404 Email: jgebhardt@covad.net
s/ Marcia Berman MARCIA BERMAN

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 143 of 144

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. BREEN, et al.,

)

) Civil Action No.

Plaintiffs

) 1:05-CV-00654-RWR

)

NORMAN Y. MINETA, et al.,

)

Defendants.

)

__________________________________________)

INDEX OF EXHIBITS TO DEFENDANTS’ COMBINED OPPOSITION TO PLAINTIFFS’
APPLICATION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

TAB NO.

DESCRIPTION

A.

Declaration of Johann Kansier, Director of FAA’s Office of

Competitive Sourcing

B.

Declaration of Daniel J. Courain, Vice President, Business Process

Services, Lockheed Martin Corporation

C.

Declaration of Paul J. Sheridan

D.

Text of Prepared Remarks of Administrator Blakey AOPA Speech

E.

June 12, 2002 Statement of DOT on Amendment of Executive Order on

Air Traffic Organization

F.

April 12, 2000 OIG Report on Contract Towers: Observations on FAA's

Study of Expanding the Program, at Executive Summary

G.

Declaration of Wanda Reyna

H.

Sept. 4, 2003 OIG Report, Safety, Cost, and Operational Metrics of the

FAA's Visual Flight Rule Towers

I.

May 18, 1998 OIG Report on Audit of Federal Contract Tower Program,

at Executive Summary

J.

National Air Traffic Controllers Association v. Mineta, Case No.

99CV1152 (N.D. Ohio Feb. 4, 2005) (opinion not on Westlaw)

Case 1:05-cv-00654-RWR Document 23 Filed 08/24/05 Page 144 of 144

K.

Determination as to the Inherently Governmental Nature of Certain Air

Traffic Control Services (July 12, 2002)

L.

OIG Audit Report, Management Advisory Memorandum on Acquisitions for

Automated Flight Services (Dec. 16, 1996)

M.

Flight Service Architecture Core Group Report (April 30, 1998)

N.

President's Management Agenda

O.

Competitive Sourcing: Conducting Public-Private Competition in a

Reasoned and Responsible Manner (OMB July 2003)

P.

Declaration of John Hennigan

Q.

Grant Thornton Feasibility Study (July 12, 2002)

R.

Memo from Chris Bertram to Acting Administrator (Aug. 21, 2002)

S.

Memo from Steven J. Brown to CFO (April 9, 2003)

T.

Memo from Administrator Blakey to Air Traffic Terminal and Center

Employees (Dec. 19, 2002)

U.

NAATS FAIR Act challenge

V.

FAA response to NAATS's FAIR Act challenge (April 10, 2003)

W.

DOT letter to NAATS President Walter Pike (May 9, 2003)

X.

Declaration of Dennis Degaetano

Y.

Agency Tender Official James H. Washington, et al. v. FAA, 05-ODRA-

00342C and 05-ODRA-00343C (consolidated) (June 28, 2005) (hereinafter

“Neill ODRA Opinion”) (describing Lockheed's proposal)

Z.

FAA Order No. ODRA-05-348 (July 20, 2005)

AA.

Declaration of George W. Williams, Jr.

BB.

Declaration of James H. Washington

CC.

Declaration of Marion C. Blakey

2

 
 Kathleen A. BREEN, et al., Plaintiffs, v. Norman Y...., 2005 WL 2861274...

2005 WL 2861274 (D.D.C.) (Trial Motion, Memorandum and Affidavit) United States District Court, District of Columbia.
Kathleen A. BREEN, et al., Plaintiffs, v.
Norman Y. MINETA Secretary of Transportation Department of Transportation, et al., Defendants.
No. 05-00654 (WRY). 2005.

Plaintiffs’ Opposition to Defendants’ Motion to Dismiss OR, IN the Alternative, for Summary Judgement

Joseph D. Gebhardt, (Dc Bar No. 113894), Charles W. Day, Jr., (Dc Bar No. 459820), Mark A. Dann, (Dc Bar No. 484523), Gebhardt & Associates, Llp, 1101 17th Street, N.W., Suite 807, Washington, Dc 20036-4716, (202) 496-0400, Counsel for Plaintiffs
Plaintiffs Kathleen A. Breen, et al., by and through undersigned counsel, hereby oppose Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment (hereinafter “Motion”), and in support of their Opposition file the attached Memorandum, setting forth Plaintiffs’ arguments and reasons why Defendants’ Motion should be denied and this case should be allowed to proceed to discovery and then to trial.

TABLE OF CONTENTS

INTRODUCTION .................................................................................................................................................................................

i

STANDARD OF REVIEW ...............................................................................................................................................................

3

ARGUMENT ..........................................................................................................................................................................................

4

I. PLAINTIFFS HAVE PROFFERED DIRECT EVIDENCE OF DEFENDANTS’ DISCRIMINATORY

4

ANIMUS ...................................................................................................................................................................................................

II. PLAINTIFFS CAN ESTABLISH A CLAIM OF DISPARATE TREATMENT UNDER THE ADEA ......

9

A. Plaintiffs Have Proffered Facts Sufficient to Create a Reasonable Inference of Age Discrimination ............

11

1. Defendants’ Repeated, Contemporaneous References To The FS Controllers as an Aging Workforce and

11

a Retirement Eligible Workforce Raise a Reasonable Inference of Age Discrimination. .........................................

2. Defendants’ Decision to Hire Younger Students Rather than Experienced FS Controllers and the FAA’s

13

Plan for the Future Raise a Reasonable Inference of Age Discrimination ......................................................................

3. Statistical Evidence of the FAA’s Disparate Treatment Raises a Reasonable Inference of Age

14

Discrimination .........................................................................................................................................................................................

4. The FAA’s Deviation from Established Policies and Practices Raises a Reasonable Inference of Age

15

Discrimination. .......................................................................................................................................................................................

5. Defendants’ Decision to Reject More Effective, Nondiscriminatory Alternatives Raises a Reasonable

17

Inference of Age Discrimination. ....................................................................................................................................................

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Kathleen A. BREEN, et al., Plaintiffs, v. Norman Y...., 2005 WL 2861274...

B. The FAA’s Stated Reasons for Implementing the Mass RIF Are a Pretext for Discrimination. .......................

18

1. The Studies and Reports on Which Defendants Rely Do Not Support the Mass RIF ............................................

19

2. The FAA’s Feasibility Study Does Not Support the Mass RIF. .....................................................................................

21

3. The Government’s Competitive Sourcing Initiative Does Not Support the Mass RIF ..........................................

22

4. The Lockheed Martin Bid Will Not Provide the Best Value to the Government. ...................................................

22

C. Plaintiff’s Have Also Satisfied the Requirements for a Mixed Motive Claim, and Defendants’ Evidence

23

Does Not Support a Same-Decision Affirmative Defense. ...................................................................................................

III. PLAINTIFFS HAVE NOT ATTEMPTED TO COLLATERALLY ATTACK PRIOR

25

ADMINISTRATIVE DECISIONS UNDER THE GUISE OF AN ADEA CLAIM. .................................................

A. The Central Issues Raised by Plaintiffs Have Not Been Addressed or Resolved in Any Forum. ....................

25

B. The Doctrine of Collateral Estoppel Does Not Preclude Plaintiff’s from Proffering Circumstantial

27

Evidence of Defendants’ Discriminatory Animus. ...................................................................................................................

IV. PLAINTIFFS CAN ESTABLISH A VALID CLAIM OF DISPARATE IMPACT UNDER THE

31

ADEA. .......................................................................................................................................................................................................

A. This Court Has Jurisdiction over Plaintiffs’ Disparate Impact Claim .........................................................................

31

B. Plaintiffs Have Presented Sufficient Statistical Evidence To Make A Prima Facie Showing Of Disparate

33

Impact .........................................................................................................................................................................................................

CONCLUSION ......................................................................................................................................................................................

35

REQUEST FOR HEARING .............................................................................................................................................................

36

LIST OF EXHIBITS ............................................................................................................................................................................

37

CERTIFICATE OF SERVICE .........................................................................................................................................................

38

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ OPPOSITION
INTRODUCTION
As Plaintiffs stated in their Application for Preliminary Injunction, incorporated herein by reference, this case raises serious questions concerning Defendants’ treatment of its older employees, particularly the Plaintiffs, who have dedicated many years of faithful service to the Federal Aviation Administration (“FAA”). Plaintiffs are all Automated Flight Service Station Air Traffic Controllers (“FS Controllers”) who are 40 years of age or older and employed by the FAA. On October 4, 2005, they will be adversely impacted by Defendants’ decision to terminate their federal employment and related benefits through the FAA’s discriminatory Reduction-in-Force (“”). Plaintiffs contend, and intend to show at trial, that Defendants’ decision to eliminate their jobs constitutes unlawful age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621, 633a et seq. In fact, Defendants’ own “Business Case for [the] Competitive Sourcing” at issue in this case is admittedly premised, in part, on the fact that the FS Controllers are members of an “Aging
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workforce.” Supp., Ex. 1-2;1 see Testimony of Michael Sheldon, Sept. 1, 2005 Hrg. Tr. at 32-33.
The FAA is discriminating against Plaintiffs based on their age by terminating all of the estimated 1,935 Air Traffic Control Specialists who work in the FAA’s Automated Flight Service Stations (“AFSSs”) in the continental United States, Hawaii, and Puerto Rico, about 92 percent of whom are over 40 years of age.2 As shown below, Plaintiffs are able to prove a prima facie case of disparate treatment. The direct and circumstantial evidence proves that age not only motivated Defendants’ unlawful decision to terminate Plaintiffs’ federal employment, but that it was a determining factor, and Defendants’ purported reasons for doing so are a pretext for discrimination. Also, Defendants are unable to prove that the FAA would have made the same decision absent their discriminatory motivation.
Despite Defendants’ claims to the contrary, Plaintiffs have not attempted to collaterally attack prior administrative decisions under the guise of their ADEA claims. The doctrine of collateral estoppel does not preclude Plaintiffs from proffering circumstantial evidence of Defendants’ discriminatory animus. Finally, Plaintiffs’ disparate impact claim is valid, and they are able to meet their prima facie burden through statistical evidence, which shows that Defendants’ mass RIF will have a substantially greater impact on the estimated 92 percent of the older (over 40) FS Controllers who will be adversely affected by the FAA’s discriminatory mass RIF.
STANDARD OF REVIEW
Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(l) or, in the alternative, for summary judgment pursuant to Rule 56. Rule 12(b)(l) deals with the Court’s subject matter jurisdiction, while Rule 56 allows for a ruling on the merits. A Rule 12(b)(l) motion “imposes on the court an affirmative obligation to ensure that it is acting within the scope of its juris-dictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). In deciding the motion, the Court “must construe the allegations in the complaint in the light most favorable to the plaintiff.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see also Scott v. England, 264 F. Supp. 2d 5, 6 (D.D.C. 2002) (court must accept all of the complaint’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor); Alliance for Democracy v. Fed. Election Comm’n, 362 F. Supp. 2d 138, 141 (D.D.C. 2005). It must also “resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting, Inc. v. Ang., 216 F.3d 36, 40 (D.C. Cir. 2000).
Under Rule 56(c), summary judgment is only appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 318 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Summary judgment is not proper where, as in this case, the evidence is such that a reasonable fact-finder could rule in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). In deciding a summary judgment motion, “the court must draw all inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.” Carter v. George Wash. Univ., 180 F. Supp. 2d 97, 102 (D.D.C. 2001) (quoting Anderson, 477 U.S. at 248), aff’d, 387 F.3d 872 (D.C. Cir. 2004)). Morever, “the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution.” Carter, 180 F. Supp. 2d at 103; see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en bane). Generally, “pre-discovery summary judgment motions are premature and should only be used for exceptional circumstances.” Barry v. U.S. Capitol Guide Bd., 2005 WL 1026703, *4 (D.D.C. May 2, 2005); see also Radich v. Goode, 886 F.2d 1391, 1391 (3d Cir. 1989) (“court must give a party opposing summary judgment an adequate opportunity to obtain discovery”). There has been no discovery in this case.
ARGUMENT
I. PLAINTIFFS HAVE PROFFERED DIRECT EVIDENCE OF DEFENDANTS’ DISCRIMINATORY ANIMUS.
The “FAA’s Business Case for [the] Competitive Sourcing” that is the foundation for the mass RIF is admittedly premised, in part, on the fact that the FS Controllers are members of an “Aging workforce.” See Suppl. Ex. 1. On June 25, 2003, the
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FAA’s Director of the Office of Competitive Sourcing (“OCS”), Joann Kansier, made a presentation to the Air Traffic Control Association in which she identified the factors that motivated Defendants’ decision to contract out Flight Services, and one of these reasons was that the FS Controllers were an “Aging workforce.” This was not the first time the FAA used “Aging workforce” as a reason for contracting out the FS Controllers’ jobs. The same justification was previously cited by the FAA as one of its “Primary Reasons for Proposing [Flight Services] for Study” in a January 12, 2003 presentation made to the FAA Managers Association.3 See Suppl. Ex. 2 (emphasis added). Multiple sources have reported that the FAA Administrator, Defendant Marion C. Blakey, has spoken about the FAA’s “aging workforce” when referring to the FS Controllers (and their elimination). See Suppl. Ex. 3; Testimony of Michael Sheldon, Hrg. Tr. at 31-33. These statements by FAA officials, which were subsequently supplanted with the euphemism “Retirement eligible workforce,” are direct evidence that age unlawfully motivated Defendants’ decision to terminate Plaintiffs’ jobs. See similarly Balderston v. Fairbanks Morse Engine Div. Of Coltec Industries, 328 F.3d 309 (7th Cir. 2002) (direct evidence of discrimination can be shown by admission by decisionmaker that his actions were based on age); Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996) (evidence such as an admission by an employer that it took actual or anticipated age into account in reaching an employment decision is a “smoking gun”).
In order to distance themselves from these statements, and based solely on Ms. Kansier’s self-serving explanation, Defendants claim that the items listed in their “Business Case” - their “Primary Reasons” for contracting out Flight Services are not actually reasons at all, but merely neutral factors that were incidentally benefitted by the FAA’s decision. See Mot. at 34-35. This claim is not credible on its face. The plain wording of these documents (“Business Case” and “Primary Reasons”) demonstrates that Defendants were citing reasons for their actions, not mitigating factors.4 Defendants’ argument is premised on the irrational notion that the so-called “benefits” of the contracting out listed in its Business Case, see Mot. at 34, did not in fact motivate the FAA’s decision to conduct the contracting out in the first place. To accept Defendants’ argument, this Court must believe that “aging facilities and equipment,” an “unbalanced workload,” and “inadequate funding” were not problems (or in Defendant Blakey’s words, a “dilemma”) the FAA sought to solve. The more cogent explanation is that the FAA considered all of these factors, including the “Aging workforce,” to be problems, and that the mass RIF is Defendants’ response.5 Defendants concede that these factors were “internal and external influences” on the FAA, see Mot. at 34, and the Court should see their strained attempt at distinguishing “influences” from “reasons” for what it is - semantics. But see Reeves, 530 U.S. at 141 (liability depends on whether age “had a determinative influence on the outcome”) (emphasis added).
Defendants now contend Ms. Kansier cannot speak for the FAA regarding anything that happened before she became the OCS Director until February 2003, after the FAA made some of its preliminary decisions that eventually led to the mass RIF (e.g., its decision to designate Flight Services as a commercial activity). See Mot. at 34. Similarly, Defendants ask the Court to disregard Ms. Kansier’s statements simply because some of their antecedent decisions were made by other FAA employees. See Mot. at 36-37. However, these claims are totally unconvincing. As an initial matter, the January 12, 2003 presentation, which lists “Aging workforce” as one of the FAA’s “Primary Reasons for Proposing [Flight Services] for Study,” was prepared and used by the FAA before Ms. Kansier became the OCS Director. Regardless, it is well established that an official in a position of authority, not to mention a designated Agency spokesperson, is fully capable of speaking on behalf of the Agency. See Faragher v. City of Boca Raton, 524 U.S. 775, 789-793 (1998). As OCS’s Director, Ms. Kansier “ran” the AFSS contracting out and was responsible for briefing “persons and organizations interested in the AFSS competition.” See Mot. at 33-34; see also FAA, “FAQS, FAA Action on Competitive Sourcing,” available at http://www.faa.gov/aba/html budget/html cs/FAQ FAA Categories.cfm? Category ID=5, (last accessed Sept. 9, 2005). (OCS was “focused exclusively on the AFSS” contracting out for 2.5 years). Thus, she was an Agency decision-maker uniquely qualified to explain all aspects of the FAA’s decision-making process (including its effort to deal with its aging workforce of FS Controllers), and doing so was a primary duty of hers.
Finally, Defendants rely on cases that are readily distinguishable from the present facts, and their arguments reveal a fundamental failure to comprehend Plaintiffs’ claims. One case on which Defendants rely addresses stray remarks made by a defendant’s employees between 1986 and 1989 that were unrelated to the eventual RIF that defendant implemented between 1991 and 1993. See Mot. at 33-34 (citing EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 952 (8th Cir. 1999)). By contrast, Ms. Kansier’s statements were made during prepared presentations designed precisely to explain the FAA’s actions while that process was underway and unfolding.6 See Aka, 156 F.3d at 1290 (“court must consider all the evidence in its full context”). A defendant in another case cited by the FAA failed to offer evidence that the person who made a discriminatory remark was involved in the decision-making process or had the ability to influence the decision at issue in that case. See Mot. at 33-34 (citing Hall v. Giant Food, Inc., 175 F.3d 1074, 1079-80 (D.C. Cir. 1999) (noting a temporal gap merely obscures
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the nexus between a statement and a discriminatory act, but that it “is not necessarily dispositive in itself’)). Here again, the facts of this case are distinguishable because Ms. Kansier played a central role and was significantly influential in the FAA’s decision-making process.7
Defendants refuse to acknowledge that the FAA’s decision to terminate Plaintiffs’ jobs took several years and several preliminary steps to implement, and although some decisions were certainly made by other FAA managers, Ms. Kansier played a pivotal role in the decision. Defendants’ desperate, post hoc attempt to argue that the FAA’s various decisions were made in isolation and had no relation to one another is plainly inaccurate and shows a fundamental refusal on their part to recognize the sequential nature of the FAA’s choices.8 Nevertheless, the simple fact remains that one of the factors the FAA used in its “Business Case” and one of its “Primary Reasons” for contracting out the FS Controllers was this “Aging workforce,” and its repeated statements to that effect are direct evidence of Defendants’ discriminatory animus.
II. PLAINTIFFS CAN ESTABLISH A CLAIM OF DISPARATE TREATMENT UNDER THE ADEA.
Should the Court not find that direct evidence of age discrimination in the FAA’s statements, Plaintiffs may still prevail on their disparate treatment claim under a modified McDonnell Douglas analysis. See Rachid, 376 F.3d at 305. Plaintiffs have the initial burden of proving a prima facie case for age discrimination, and Defendants must proffer a legitimate, nondiscriminatory reason for undertaking the mass RIF. See Id. at 312. Plaintiffs must then show (1) that Defendants’ reasons are not true, but instead a pretext for discrimination; or (2) that Defendants’ reasons, although true, are only one of the reasons for their conduct, and another “motivating factor” is Plaintiffs’ ages. Id. If Plaintiffs demonstrate that age was a motivating factor in FAA’s plan, Defendants must prove that its decision would have been made regardless of discriminatory animus. Id.
Plaintiffs’ prima facie burden is not meant to be onerous, see Burdine, 450 U.S. at 253, and they need only proffer “evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion” O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996) (emphasis in original; internal quote omitted). The D.C. Circuit has “made clear” that Plaintiffs can carry their burden by establishing that: (1) they are members of a protected class; (2) they suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. See George v. Leavitt, 407 F.3d 405, 412 (D.D.C. 2005) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).9
A. Plaintiffs Have Proffered Facts Sufficient to Create a Reasonable Inference of Age Discrimination.
Plaintiffs are all 40 years of age or older, and therefore are members of a protected class under the. See 29 U.S.C. § 631(b); PI Ex. 1. They will also suffer adverse employment actions when they are terminated from federal service and lose their federal benefits as planned under the mass RIF. See PI Exs. 24, Att. A; 32. Finally, several additional factors give rise to an inference of age discrimination.
1. Defendants’ Repeated, Contemporaneous References To The FS Controllers as an Aging Workforce and a Retirement Eligible Workforce Raise a Reasonable Inference of Age Discrimination.
Defendants’ use of the term “Agency workforce” in its “Business Case,” see Suppl. Ex. 1, the FAA’s statement that age was one of its “Primary Reasons for Proposing [Flight Services] for Study,” see Suppl. Ex. 2, Defendants’ subsequent use of the euphemistic term “Retirement eligible workforce,” see PI Ex. 50, and its continued references to the FS Controllers’ retirement eligibility, see Slides 3, 4; see also Def. Ex. D, all give rise to a reasonable inference of age discrimination.10 These statements were made contemporaneously to the FAA’s decision. See Hanan v. Corso, 1999 U.S. Dist. LEXIS 23160, 46-48 (D.D.C. 1999) (Facciola, J.) (“the closer in time the statement is to the decision at issue, the more likely the federal courts will find it probative of a discriminatory intent”); see also Schuster v. Lucent Techs., Inc., 327 F.3d 569, 575 (7th Cir. 2003) (“age-based derogatory remarks made around the time of and in reference to an employment action are relevant to a finding of discrimination”); Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 519 (D.N.Y. 2004) (“although evidence of one stray comment by itself is usually not sufficient proof to show age discrimination, that stray comment may bear a more ominous
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significance when considered within the totality of the evidence”)(citation omitted). It is also clear from the context in which these statements were used (“FAA’s Business Case” and “Primary Reasons”) that age bias motivated the FAA’s action. Moreover, Defendants do not deny this fact. See Defs’ Resp. to Pls’ Notice of Suppl. Filing at 3.11
To the extent Defendants deny they considered age, their own evidence refutes their claim. Defendants’ third stated reason (out of only four) for implementing the impending mass RIF was the July 12, 2002 Feasibility Study. See Mot. at 52. However, that document states quite clearly that the FAA needed to conduct further studies, including a “Business Case Analysis” before subjecting Flight Services to an A-76 competition. See Defs’ Ex. Q at § 5(p. ) 9). It also states the FAA used criteria in making its decision to compete the AFFSs that “were purposefully omitted,” excluded, and “dropped” from the Feasibility Study because they were used to support the FAA’s Business Case, which lists “Aging workforce” as one of its factors. See id. at § 3.2.1 (p. 6).
Having explicitly used age as factor in its decision-making process, Defendants can find no shelter from liability in the Supreme Court’s holding in Hazen Paper because that decision is limited
solely to cases “when the factor motivating the employer is some feature other than the employee’s age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). See Mot. at 36. Moreover, by its own words, that decision does not apply to cases where pension status is used as a proxy for age, where pensions are closely tied to age, or where plaintiffs proffer additional evidence inferring defendant’s discriminatory motive, see id. at 612-13, and this case fits squarely into each of these exceptions. See Pls.’ PI Appl. At 81-83. For example, it is evident from the record that Defendants merely supplanted the term “Agency workforce” with “Retirement eligible workforce” in their later statements, which shows the latter term was merely a code for age. Compare Suppl. Ex. 1 with PI Ex. 50.
2. Defendants’ Decision to Hire Younger Students Rather than Experienced FS Controllers and the FAA’s Plan for the Future Raise a Reasonable Inference of Age Discrimination.
Contrary to Defendants’ claim that their Plan for the Future is “separate from, and unrelated” to this case, the FAA has explicitly relied on that document to justify its decision to hire younger students rather than retain older, experienced FS Controllers. See Mot. at 39. Without discovery, it is difficult to precisely state how many of the FS Controllers the FAA has retained to work as Tower or En Route Controllers.12 However, it is clear from the available record that the FAA has hired a significantly larger number of younger, inexperienced students to fill its vacant Controller positions rather than retaining the older FS Controllers, who by Defendants’ own admission are “experienced and valuable employees.” See Mot. at 1. Furthermore, although the average age of the FS Controllers is 50.9, see Letter from Joseph L. Tryon to Charles W. Day, Jr., GEBHARDT & ASSOCIATES, LLP, dated 9/14/05, at 1 (copy attached as Exhibit 4). The average age of the FS Controllers the FAA has chosen to retain as of August 19, 2005, is only 43.3, see Decl. of Scott Malon, dated September 15, 2005, Attach A (Attached as Exhibit 2).13 This pattern is persuasive evidence that the FAA is acting in an age-discriminatory manner.14 See Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995) (“an employer implementing a RIF may not favor younger employees over older ones by finding new positions only for younger workers”); McReynolds v. Sodexho Marriott Servs., 208 F.R.D. 428, 433-434 (D.D.C. 2002).
3. Statistical Evidence of the FAA’s Disparate Treatment Raises a Reasonable Inference of Age Discrimination.
Defendants concede that statistical evidence may support Plaintiffs’ prima facie burden. See Mot. at 42. Their objection arises from an attempt to limit the scope of the Court’s analysis solely to any disparities between the employees within Flight Services, but the relevant question is whether disparity exists between the FAA’s various workforces - i.e., the only one Defendants chose to contract out (Flight Services) and all the rest which they chose not to contract out (all others, including Tower and En Route).
The average age of the FS Controllers is 50.9. See Ex. 4. By contrast, the average age of the FAA’s total Controller workforce (Tower, En Route, and Flight Services) is only 44.7 and the average age of the FAA’s entire workforce (Controllers and all other employees) is merely 47. See Ex. 4. Thus, the FS Controllers were the FAA’s oldest workforce by
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far, see PI Ex. 2 at ¶ 13, and this disparity is statistically significant because the chances are less than 1 in 1,000 that it could have arisen by chance, see Ex. 4. In light of these facts, which Defendants accept as true for purposes of their Motion, see Mot. at 41 -42, Defendants’ decision to single out the FS Controllers for contracting out and a mass RIF rather than one of the FAA’s other workforces, by itself, raises a reasonable inference of age discrimination. See, Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429-430 (4th Cir. 2000) (holding that the proper comparison is between the terminated workforce and the residual work force of persons containing some unprotected persons); see also, Duke v. Uniroyal, Inc., 928 F.2d 1413, 1418 (4th Cir. 1991) (same).
4. The FAA’s Deviation from Established Policies and Practices Raises a Reasonable Inference of Age Discrimination.
A discriminatory inference may be drawn when an Agency departs from normal processes without justification. See Lathram v. Snow, 336 F.3d 1085, 1093-94 (D.C. Cir. 2003). The same inference may be drawn from inconsistent practices on a defendant’s part. For these reasons, the Court must consider as relevant any deviation by the FAA from its established policies, including, for example, its decision to designate some AFSSs as commercial in 2001 in direct contravention of Executive Order 13180. Compare PI Ex. 26 with Exec. Order No. 13180 (December 7, 2000) (amended on June 6, 2002); see also PI Exs. 26, 27 (indicating the AFSSs were first designated as commercial in 1999). The Court must also take note of the various inconsistencies in Defendants’ story.15
In addition to the anomalies previously discussed by Plaintiffs, Defendants’ own evidence reveals more irregularities the FAA is unable to reconcile. For example, the April 30, 1998 Flight Service Architecture Working Group Report on which Defendants rely states that the AFSS “[i]nflight services... should be maintained as a governmental role” and that “nearly all general aviation air/ground services are federally provided and should remain so.” See Defs’ Ex. M at §§ 1.3, 4.1. Similarly, the FAA’s Feasibility Study repeatedly concluded that the Flight Services’ NOTAM D function, which includes the monitoring of the President, is a governmental function (“mandates performance by the Government only”) and should not be subjected to competition. See Defs’ Ex. Q at § 4.1 (p. 16). Yet, Defendants inexplicably deviated from these conclusions by revoking Flight Services’ inherently governmental designation and contracting out all of the AFSS functions, including the FS Controllers’ NOTAM D duties. The FAA also inexplicitly changed its established procedures by establishing a “centralized selection process” for determining which of the FS Controllers would be retained in a Tower or En Route position (with only one “Selecting Official for all selections made” by the FAA). See Defs’ Ex. G at ¶ 12 (noting that the FAA normally refers the list of candidates to the various facilities). These deviations from established policies are unexplained and support Plaintiffs’ prima facie case.16
5. Defendants’ Decision to Reject More Effective, Nondiscriminatory Alternatives Raises a Reasonable Inference of Age Discrimination.
No fewer than four lengthy reports presently in the record speak extensively and enthusiastically about the vast benefits, including significant financial savings, that the FAA would obtain if it expanded its Contract Tower Program. See Defs’ Exs. F, H, I; PI Supp. Ex. at 13-14. The April 12, 2000 Office of Inspector General (“OIG”) Audit Report concluded that the FAA underestimated the cost savings it could obtain from expanding the Contract Tower Program in its report to Congress, and that it should revise its study because Defendants could have saved an estimated $881,000 per Tower per year ($62.5 million). See Defs’ Ex. F at IV ¶ 3. The follow-up September 4, 2003 OIG Report indicates that the FAA never responded to the OIG’s 2000 Report. See Defs’ Ex. H at 11 ¶ 4. It went on to state, however, that based on revised estimates, the FAA could have saved about $917,000 per Tower per year had it chosen to expand its Contract Tower Program ($65.1 million). Like these reports, the FAA’s May 18, 1998 Federal Contract Tower Program Report also praises the success of the FAA’s Contract Tower Program, which was a tested and proven success. See Defs’ Ex. I at 1-6; Mot. at 9.
Taken together, these reports, which are the only reports that actually assess and thoroughly calculate the possible cost benefits and efficiencies of any FAA contracting out initiative (only discussing the Towers, not Flight Services) demonstrate that the FAA could have saved almost $325 million between 2000 and 2005, and more than $60 million a year after that had it expanded this well-established program. See similarly, PI Supp. Ex. at 11-15 (describing several other cost-saving measures the FAA has refused to implement despite repeated recommendations by interested parties); Defs’ Ex. H (noting
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that the FAA failed to collect $2.4 million it was entitled to under a contractor’s failure to properly staff its Towers). But Defendants chose to reject this effective, non-discriminatory initiative, see Defs’ Ex. T, and instead, the FAA expended about $20 million to establish OCS to contract out Flight Services. See Ex. 2 at ¶24; id. at Att. C at 2. As previously noted, the FAA’s Tower employees are a significantly younger workforce than the FS Controllers. Thus, Defendants’ decision not to pursue this alternative course of action, which would have saved the Government more money to date than the forthcoming RIF, raises a reasonable inference of age discrimination. See Rudder v. D.C., 890 F. Supp. 23, 46 (D.D.C. 1995) (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660 (1989)).
Not only did Defendants have effective, nondiscriminatory alternatives to save money, but as Plaintiffs have previously explained, they also have other effective methods of consolidating the AFSS facilities, which did not necessitate a mass RIF.17 See Pls’ PI Appl. at 77 (citing PI Exs. 10, 11). In fact, Defendants concluded that efficiency improvements at the AFSSs could be accomplished through gradual retirement/attrition. See e.g., Defs’ Ex. M at § 4.4.
B. The FAA’s Stated Reasons for Implementing the Mass RIF Are a Pretext for Discrimination.
Once Plaintiffs have proffered a prima facie case of discrimination, the burden shifts to
Defendants to produce a legitimate, nondiscriminatory reason for their actions. See Teneyck, 365 F.3d at 1151. After Defendants set forth their reasons, Plaintiffs must then carry their “ultimate burden” of proffering evidence from which a reasonable trier of fact can infer intentional discrimination. See id. at 1151. Defendants have proffered only four reasons for implementing the mass RIF: (1) FAA Studies and Reports; (2) the Feasibility Study; (3) the Administration’s Competitive Sourcing Initiative; and (4) the FAA’s determination that the Lockheed Martin bid provided the best value to the government. See Mot. at 49-54.
1. The Studies and Reports on Which Defendants Rely Do Not Support the Mass RIF.
Defendants are correct that the various studies cited by the FAA recommend that the AFSSs be consolidated. See Mot. at 49. However, these reports do not endorse, and in fact some of them reject, the implementation of amass RIF of the older FS Controllers, which Defendants chose to initiate. For example, the 2001 OIG Report recommends only that the AFSSs be consolidated; it does not endorse the contracting out of the FS Controllers’ jobs or the implementation of amass RIF. In fact, it states that the consolidation “could be accomplished entirely through retirements and without a reduction in force.” See PI Ex. 11 at 5. See also, Ex. 10 at 3.1; Defs’ Ex. M at § 4.4.
Similarly, the December 6, 1996 OIG Audit Report, which was completed more than nine years before the FAA announced its proposed RIF on February 1, 2005, concluded only that the FAA can save money by consolidating the AFSSs in light of new technologies (i.e., OASIS). See Defs’ Ex. L at 4.18 Although that Report contains a fleeting reference to possible private sector alternatives for Flight Services, the focus of that portion of the Report was the “FAA’s alternative analysis for OASIS,” see id. at 8 (emphasis added). The OIG merely recommended that the FAA “perform an extensive evaluation of the full range of alternatives” for providing Flight Services, see id. at 10. Because the OIG conducted no analysis and reached no conclusion concerning the contracting out of Flight Service or the implementation of the RIF, it simply cannot be understood as support for the FAA’s decision to terminate the FS Controllers’ jobs.
Moreover, the FAA’s response to the Report contained no mention of any plans to take any adverse actions, and the Report itself states that the FAA had resolved its recommendations. See id. at 10, 14. Also, Defendants never conducted an “extensive evaluation of the private sector,” or any analysis for that matter, until after they had already decided to contract out Flight Services (more than six years later). See Defs’ Ex. Q §§ 1.1, 1.2 (explaining that the Feasability Study was conducted only after the FAA proposed Flight Services for contracting out). Given these facts, the 1996 OIG Report can hardly be viewed as a justification for Defendants’ decision.19
2. The FAA’s Feasibility Study Does Not Support the Mass RIB. 8

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According to the Feasibility Study, the FAA decided to subject the Fads to a competitive contracting out and “[o]ice [Flight Services] was proposed as a candidate... the next step was to determine the feasibility.” See Deft’ Ex. Q §§ 1.1, 1.2. In fact, the FAA had already changed the Reason Codes assigned to the Fads from “A” (which shielded them from contracting out) to “B” (which exposed them) by March 31, 2001, more than year before the Feasibility Study subsequently justified this decision. Compare PI Ex. 26 with PI Ex. 27. Hence, Defendants cannot claim the Feasibility Study motivated the FAA’s decision; at most it merely validated that decision after the fact.
Moreover, as noted above, the Feasibility Study states quite explicitly that the FAA was motivated, at least in part, by factors that “were purposefully omitted” from the Study and placed into the “FAA’s Business Case,” which was a necessary part of the equation that had to be completed before the FAA proceeded. See Defs’ Ex. Q §§ 3.2.1,5 (pp. 6, 19). Also, Defendants have proffered no proof to demonstrate that the Feasibility Study was validated after it was concluded, a step the Study itself recommends. See id. at § 5(p. ) 9).20 Finally, the FAA did not even comply with the conclusions in the Study regarding governmental functions. See supra at 25. It is not credible for Defendants to rely on a study to justify their actions when they did not comply with the recommendations contained therein.
3. The Government’s Competitive Sourcing Initiative Does Not Support the Mass RIF.
Defendants concede “the FAA cannot rely on the requirements of the Administration’s competitive sourcing initiative as a reason for its action because the Administration did not require the FAA to choose Flight Services for an A-76 competition.” See Mot. at 55. Moreover, Defendants falsely claim that the Administration required the FAA to complete a minimum of 15 percent of its commercial activities, when they were actually not obligated to do so. Cf Ex. 6 hereto. Finally, Defendants’ complete refusal to expand its Contract Tower Program suggests that they did not in fact take the Government’s competitive sourcing initiatives seriously, as they claim. See Mot. at 55. Defendants’ concession that they were not required to subject Flight Services to an A-76 Study, the falsity of their claims, and their lack of credibility belie any argument they have made on this issue. See Reeves, 530 U.S. at 147-49.
4. The Lockheed Martin Bid Will Not Provide the Best Value to the Government.
Defendants contend that Lockheed Martin’s bid represented the “best value” to the Government and that neither age nor retirement eligibility of the FS Controllers played any role in the bid selection process. To support this, they claim that the FAA’s Source Selection Authority (“SSA”), the individual responsible for awarding the outsourcing contract, reviewed “drafts” of the Source Selection Evaluation Board (“SSEB”) Report, the Technical Evaluation Report (“TER”) and Appendixes B and C of the TER, but somehow remained ignorant about the identity of the bidders simply because they were designated by a PSP number rather than their names. See Defs’ Stmt. of Material Facts at ¶¶ 24, 25. However, by his own admission, the SSA selected Lockheed Martin as the contractor based on the SSEB’s recommendation, and they knew the identities of all of the bid- ding parties. See Defs’ Ex. X at 5 (stating that DeGaetano reviewed TER App. B); Pls.’ Ex. 28 at 178 (stating “[w]e [PSP3 - MEO] are the only prospective service provider with... workforce in place at current facilities”). Also, the reports that the SSA reviewed clearly identified the MEO by noting by, for example, noting that PSP 3 was presently staffing the AFSSs. See e.g., PI Ex. 28 at 178.
Finally, there is a clear dispute of fact as to the cost savings the FAA claims it will achieve as a result of its decision t o terminate the FS Controllers’ jobs. Evidence proffered by Plaintiffs indicate that Defendants’ own estimates have been erratic and diminishing. See e.g., Slide 5 (estimates have gone down from $2.2 billion to $1.2 billion); PI Suppl. at 10 (GAO states that the FAA will save only $241 million over five years). Moreover, the non-discriminatory alternatives that Defendants refused to implement would have saved the FAA more money. See e.g., Slide 6; Defs’ Ex. X at ¶ 7; see supra at 22. Under even the narrowest definition, a more costly and discriminatory option simply cannot be deemed a “best value.”
C. Plaintiffs Have Also Satisfied the Requirements for a Mixed Motive Claim, and Defendants’ Evidence Does Not Support a Same-Decision Affirmative Defense.
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Under a modified McDonnell Douglas analysis, which incorporates mixed-motive claims in the ADEA, Plaintiffs can prevail by showing that age was a motivating factor in Defendants’ decision, even if they were also motivated by some other, lawful reason as well. See Rachid, 376 F.3d at 312 (analyzing post-Desert Palace ADEA claim under “a merging of the McDonnell Douglas and Price Waterhouse approaches”); see similarly Porter v. Natsios, 2005 U.S. App. LEXIS 13123 at ** 12-13 (D.C. Cir. July 1, 2005) (plaintiffs carry their prima facie burden “by demonstrating that discrimination or retaliation played a ‘motivating part’ or was a ‘substantial factor’ in the employ- ment decision”).21 As detailed above, Plaintiffs have proffered an immense amount of direct and circumstantial evidence demonstrating that Defendants’ mass RIF is motivated by age bias. See supra at 11. By their own admission, Flight Services’ “Aging workforce” was one of the FAA’s “Primary Reasons for Proposing [Flight Services] for Study.” See Suppl Ex. 2.
By contrast, Defendants have adduced insufficient evidence to support their burden of proving their “Same-Decision” affirmative defense. See Price Waterhouse, 490 U.S. at 244-45. In its entirety, Defendants’ evidence that they would still have terminated the FS Controllers’ jobs consists of a single statement by one FAA employee, the FAA’s Deputy Chief Financial Officer, who claims that he would have taken the same actions regardless of any age discrimination by the FAA. See Mot. at 60. Significantly, Defendants maintain that several different people were involved in the FAA decision-making process and that no single person’s actions was solely determinative. See Mot. at 19, 20. Assuming this is true for purposes of this Opposition, then no single person’s testimony can be sufficient evidence that the FAA would still have contracted out Flight Services despite the Agency’s consideration of employees’ ages. Moreover, an FAA employee’s testimony is simply not “objective evidence” as required by the very standard of proof that Defendants cite. See Mot. at 60 (Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (The employer must present some objective evidence and “must show that its legitimate reason, standing alone, would have induced it to make the same decision”)).
III. PLAINTIFFS HAVE NOT ATTEMPTED TO COLLATERALLY ATTACK PRIOR ADMINISTRATIVE DECISIONS UNDER THE GUISE OF AN ADEA CLAIM.
As Plaintiffs explained above, Defendants’ adverse employment actions, the FAA’s mass RIF against the FS Controllers, are predicated on a series of precursory and sequential decisions that occurred over several years. See supra at 9 n. 8. The fact that Plaintiffs had to wait until their case ripened with the announcement of their impending termination before they could expose the FAA’s discriminatory actions, see Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)), does not prevent them from now showing how Defendants’ earlier decisions were motivated by an age discriminatory motive and eventually culminated in the FAA’s ultimate actions in violation of the ADEA. See Panzer v. Norden Sys., 151 F.3d 50, 56-57 (2d Cir. 1998) (holding that “evidence that, even if insufficient alone, may nonetheless work with other submitted proofs (such as biased remarks) to support a [finding of] discrimination.”).
A. The Central Issues Raised by Plaintiffs Have Not Been Addressed or Resolved in Any Forum.
The central legal and factual issues in this case are whether the FAA discriminated against the FS Controllers, their “Aging workforce,” on the basis of age, and whether the FAA’s policies had a disparate impact on the FS Controllers. Moreover, the factual inquiries that must be resolved in order to assess Plaintiffs’ legal claims are unique and go toward resolving the specific issue of discrimination. These issues have never been raised or litigated in any other forum and because they were never actually put in issue or previously decided, prior litigation does not preclude inquiries into these matters by this Court. See e.g., Haring v. Prosise, 462 U.S. 306 (1983) (noting the importance of preserving federal courts as an available forum for the vindication of individual’s rights); see also Mot. at 66 n. 28 (“discrimination was not in issue at the administrative level” and “none of the administrative findings has any relevance to plaintiffs’ ADEA claim”).
In support of their ADEA claims, Plaintiffs maintain that the FAA’ s decision to revoke Flight Services’ inherently governmental designation and its decision to change the AFSSs’ Reason Codes were influenced by Defendants’ age-discriminatory animus and that these were initial steps toward the FS Controllers’ eventual terminations.22 These actions, which Plaintiffs discuss merely to show some of the FAA’s discriminatory actions, are distinctly different from the unrelated and more narrow question of whether, for example, it was reasonable for the FAA to take these actions. See generally, Defs’ Exs. V, W. Likewise, Plaintiffs submit that the FAA demonstrated bias against its older Flight Services employees, which is
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distinctly different than whether the FAA had a bias for or against the MEO or Lockheed Martin. See Mot. at 67 (“these administrative proceedings are clearly different in kind than the administrative proceedings in a typical ADEA case because Judge Neill was focused on the propriety of a contract award, not plaintiffs’ claims of discrimination”).23 Because the legal and factual questions presently before this Court are unique and distinguishable from issues previously addressed in a non-EEO administrative forum, this Court has jurisdiction to decide them on their merits.24 When constitutional facts are at issue, such as those within the context of an ADEA claim, a court is empowered to review those facts denovo. See Ohio Valley Water Co. v.Ben Avon Borough, 253 U.S. 287 (1920); Cook v. Pan American World Airways, Inc., 771 F.2d 635, 643 (2d Cir. 1985); Clayton v. Republic Arlines, Inc., 716 F.2d 729 (9th Cir. 1983).
B. The Doctrine of Collateral Estoppel Does Not Preclude Plaintiffs from Proffering Circumstantial Evidence of Defendants’ Discriminatory Animus.
Although some prior findings by an administrative agency may be given preclusive effect, there is a presumption against the doctrine of collateral estoppel, and Defendants have the burden of proving it applies in this case. See Crawford v. Jackson, 323 F.3d 123, 131 (DC. Cir. 2003) (“the burden of showing that any issue in the present litigation as to which he seeks preclusion is identical to the one that was decided earlier”). In order for a factual finding to be precluded, Defendants must show (1) the same issue now being raised was previously contested by the same parties and submitted for judicial determination, (2) the issue was actually and necessarily determined by a court of competent jurisdiction, and (3) preclusion in this case must not work a basic unfairness to the party bound by the first determination. See Beverly Health & Rehab. Servs. v. NLRB, 317F.3d316, 322 (D.C. Cir. 2003); see also U.S. v. TDC Mgmt. Corp., 288 F.3d 421, 424 (D.C. Cir. 2002) (“A prior determination can only preclude re-litigation of the same issue if it was ‘essential to the [prior] judgment.”’) (quoting Restat 2d of Judgments § 27); Union Pac. R.R. Co. v. Surface Transp. Bd., 358 F.3d 31, 38 (D.C. Cir. 2004) (courts “disallow preclusion where its use would create perverse incentives or unfairness”). These factors are in addition to Defendants’ burden of showing that (4) that the special master acted in a judicial capacity, (5) he resolved disputed issues of fact properly before it, and (6) the parties had an adequate opportunity to litigate. See U.S. v. Utah Constr. & Mining Co., 384 U.S. 394 (1966). However, even if Defendants carry their burden of showing these factors, any issue may be relitigated if Plaintiffs could not, as a matter of law, have obtained review of the judgment in the initial action, or if they had a heavier burden of proof in the initial action than in the subsequent action, or if the burden of proof has shifted to Defendants. See Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920); Cook v. Pan American World Airways, Inc., 771 F.2d 635, 643 (2nd Cir. 1985); Clayton v. Republic Airlines, Inc., 716 F.2d 729 (9th Cir. 1983).; see also Restat. 2d of Judgments § 28.
Plaintiffs are not precluded from proffering evidence regarding unlawful bias in the FAA’s bidding process for five reasons, regardless of Judge Edwin B. Neill’s decision in Washington, et al. v. FAA, 05-ODRA-00342C and 05-ODRA-00343C (consolidated) (June 28, 2005) (“ODRA Opinion”). First, Defendants fail to identify with particularity the specific facts alleged by Plaintiffs that were directly refuted by the ODRA Opinion. For example, Plaintiffs assert that there were “prejudicial errors in the bidding process” and that “the FAA decided to select Lockheed Martin as its service provider because that proposal would have the most detrimental impact on the older FS Controllers.” See PI Appl. at 25. However, Defendants have failed to cite a single finding in the ODRA Opinion that forecloses the existence of prejudicial errors in the process or any finding that refutes Plaintiffs’ claim that the FAA was seeking an outcome that would be detrimental to the FS Controllers. Similarly, although the ODRA Opinion concludes that the FAA had a “rational basis” for selecting the Lockheed Martin bid, it did not find that the FAA’s conclusion was the result of a “rigorous critique” of that bid.25
Second, with respect to the issue of bias, Judge Neill required the Contesters in the preceding adjudication to meet a higher burden of proof than they must meet in order to prevail on their present claims of discrimination. Specifically, Judge Neill required the Contesters to “show improper conduct by clear and convincing evidence.” See Defs’ Ex. Y at 65 (citing Am-Pro Protective Agency, Inc. v. U.S., 281 F.3d 1234, 1239-40 (Fed. Cir. 2002)). By contrast, Plaintiffs now need only satisfy the lower “preponderance of the evidence” standard of proof. See Teneyck, 365 F.3d at 1149. Because Plaintiffs were previously required to meet a higher burden of proof, the doctrine of collateral estoppel does not apply, and the prior decision has no bearing on this case.26 See Beverly Health & Rehab. Servs. v. NLRB, 317 F.3d 316, 322 (D.C. Cir. 2003).
Third, Defendants have never asserted and have therefore failed to show that the facts they seek to preclude from this case were necessary to Judge Neill’s determination. See United States v. TDC Mgmt. Corp., 288 F.3d 421, 424 (D.C. Cir.
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2002)(holding that “a prior determination can only preclude re-litigation of the same issue if it was essential to the prior judgment.”) (citation omitted). Fourth, because Plaintiffs have proffered direct evidence of Defendants’ age discrimination, Defendants have the burden of proving their “same-decision” affirmative defense, and where the burden of proof has shifted to Defendants, the doctrine of collateral estoppel does not apply.27 See Cobb v. Pozzi, 363 F.3d 89, 114 (2d Cir. 2003); Clark v. Bear Stearns & Co., 966 F.2d 1318, 1322 (9th Cir. 1992) (“Collateral estoppel does not preclude claims that have a different burden of proof than previously decided claims [.]”); Guenther v. Holmgreen, 738 F.2d 879, 888 (7th Cir. 1984) (“It is, of course, well established that issue preclusion may be defeated by shifts in the burden of persuasion or by changes in the degree of persuasion required.” (citation omitted)); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4422 at 592 (2002) (“Failure of one party to carry the burden of persuasion on an issue should not establish the issue in favor of an adversary who otherwise would have the burden of persuasion on that issue in later litigation.”); Restatement (Second) of Judgments § 28(4) (1982). Finally, the D.C. Circuit has held that “[w]hile preclusive effect may sometimes attach to administrative proceedings, we see no reason why it should attach to proceedings where the examiner may only make ‘recommendations’ and lacks power to issue binding judgments.” Murray v. Gilmore, 406 F.3d 708, 714 (D.C. Cir. 2005). Judge Neill’s decision was merely a recommendation to Defendant Blakey. See Defs’ Exs. Y at 102; Z.
IV. PLAINTIFFS CAN ESTABLISH A VALID CLAIM OF DISPARATE IMPACT UNDER THE ADDED.
This Court has jurisdiction over Plaintiffs’ disparate impact claim, which is cognizable under the ADEA’s federal sector provision. Furthermore, Plaintiffs have proffered sufficient statistical proof of the disparate impact of the FAA’s actions, and are confident that further discovery will allow them to develop a fuller record regarding Defendants specific business practices.
A. This Court Has Jurisdiction over Plaintiffs’ Disparate Impact Claim.
Defendants’ contention that this Court does not have jurisdiction over Plaintiffs’ disparate impact claim under the federal sector provision of the ADEA, 29 U.S.C. § 633a, in unpersuasive.
As an initial matter, Defendants are correct that Smith, et al. v. City of Jackson, et al., 544 U.S.___, 125 S.Ct. 1536 (2005), which recognizes disparate impact claims under the ADEA’s private sector provision, does not apply to the present case.28 See Mot. at 80. However, Defendants nevertheless discuss that case at length while conveniently waiting until the end of its argument to disclose and discuss those cases that do address this issue, namely Lumpkin v. Brown, 898 F. Supp. 1263, 1271 (N.D. 111. 1995); Evans v. Atwood, 38 F. Supp. 2d 25, 29-30 (D.D.C. 1999); Arnold v. U.S. Postal Service, 649 F. Supp. 676, 679-81 (D.D.C. 1986), rev’d on other grounds, 863 F.2d 994, 998 (D.C. Cir. 1988); and Palmer v. U.S., 794 F.2d 534, 538 (9th Cir. 1986). See also Keith R. Fentonmiller, The Continuing Validity of Disparate Impact Analysis for Federal Sector Age Discrimination
Claims, 47 Am. U. L. Rev. 1071 (1998). This is because these cases have uniformly recognized a disparate impact claim under the federal sector provision of the ADEA.
There are also D.C. Circuit decisions that tend to support the application of disparate impact to federal employees like Plaintiffs. For instance, Kogerv.Reno, 98 F.3d 631, 693 (D.C. Cir. 1996), assumed, without deciding, that disparate impact applied to § 633a. Also, the D.C. Circuit has advocated abroad reading of § 633 a so as to avoid discrepancies between the protections the ADEA offers to private employees and those available to federal employees. See Forman v. Small, 271 F.3d 285, 296-99 (D.C. Cir. 2001) (holding the ADEA allows for retaliation claims against the federal government).
Defendants’ vague recitation of the section 633a legislative history is equally unpersuasive, particularly in light of the fact that here too, Defendants blithely disregard obvious and key facts.29 First, after the inception of disparate impact claim in Griggs v. Duke Power Co., 401 U.S. 424 (1971), Congress amended Title VII of the Civil Rights Act in 1972 to extend its protections to federal employees. See 42 U.S.C. § 2000e-16. Second, by Defendants’ own admission, Congress embraced this theory when they amended Title VII, see Mot. at 89, and courts uniformly found disparate impact claims were cognizable under the federal sector provisions of Title VII, see Washington v.Davis, 426 U.S. 229, 249-53 (1976); Coppersmith v.
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Roudebush, 517 F.2d 818, 821 (D.C. Cir. 1975). Third, courts applied disparate impact to claims under Title VII’s federal sector provisions despite the fact that Congress had given no express waiver of sovereign immunity for such claims. See 42 U.S.C. § 2000e-16; Smith, 125 S.Ct. at 1540-42. Fourth, only two years after extending Title VII to federal employees, in 1974, Congress amended the ADEA and extended its protections to federal employees, in part, as Defendants acknowledge, out of concern that “the main burden of [government personnel cuts] not fall upon older workers simply because they have attained a certain chronological age.” See Mot. at 86 (citing 119 Cong. Rec. 2648 (1973)). See similarly, Fentonmiller, 47 Am. U. L. Rev. 1071. Fifth, Congress patterned the federal sector provision of the ADEA after the federal sector provisions of Title VII. See Lehman v. Nakshian, 453 U.S. 156, 163-64 (1981). Indeed, the language of the two provisions track one another. Compare 29 U.S.C. § 633a(a) with 42 U.S.C. § 2000e-16(a). In light of this sequence of events, Defendants’ unpersuasive claim that the ADEA does not allow federal employees to advance disparate impact claims fails.
B. Plaintiffs Have Presented Sufficient Statistical Evidence To Make A Prima Facie Showing Of Disparate Impact.
In order to prevail on a claim of disparate impact, Plaintiffs must show that a specific facially neutral practice has a disproportionate effect on older employees at the FAA. The practice under challenge here is the FAA’s mass RIF of its predominantly older FS Controllers (the Agency’s oldest workforce at almost 51 years on average). See Ex. 4. The mass RIF applies only to Flight Services and affects the 92 percent who are 40 years of age or older as well as the collaterally damaged 8 percent who are under 40.30 The younger employees do not have the same investment in their retirement as older employees, are more likely to be retained by the FAA and otherwise have more career options open to them, and are likely to be more mobile, so that they are likely to be less severely affected by the RIF in contrast to the older FS Controllers. See Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 204 (2d Cir. 1995) (“A finder of fact is permitted to draw an inference of age discrimination from evidence that, in implementing... a reorganization or reduction, the employer has located new positions for younger, but not older employees.”).
In this case, Plaintiffs were only able to challenge the discriminatory actions of the FAA under the ADEA once those actions manifested themselves in adverse personnel actions. However, the RIF is the culmination of a long list of practices and policies which, while perhaps not themselves actionable, lie at the root of the FAA’s discriminatory actions. These practices include the classification of Flight Services as a commercial activity, the implementation of studies that purport to justify the contracting out of Flight Service, the definition of which parts of Flight Services would be considered for contracting out, all of which, while facially neutral, are likely to have contributed to the disparate impact on older FS Controllers rather than other, younger FAA employees, including the FAA’s Tower and En Route Controllers. Discovery is required to demonstrate the specific effect of each of these practices.
In Connecticut v. Teal, the Supreme Court ruled that the State of Connecticut’s record of promoting African Americans at the end of a promotion process did not cure the discriminatory impact of its prior promotion test that disproportionately excluded African Americans. 457 U.S. 440 (1982). In the instant case, the fact that the bottom line affects only the “Aging workforce” of FS Controllers who are being terminated should not obscure the facially neutral distinctions that spared the younger FAA employees and sacrificed the older FS Controllers. Plaintiffs should be granted time to develop the record in order to conclusively prove the discriminatory impact of the facially neutral practices that resulted in the discriminatory RIF.
CONCLUSION
For all the reasons stated above, Plaintiffs respectfully request that this Court deny Defendants’ Motion and allow this case to proceed to discovery and then to trial.
REQUEST FOR HEARING
Plaintiffs respectfully request an Oral Hearing on the merits of Defendants’ Motion.
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Footnotes

1

For purposes of this memorandum, Plaintiffs will refer to exhibits previously presented to the Court as follows: Plaintiffs’

Application for Preliminary Injunction (PI Ex. X); Plaintiffs’ Motion for Leave to Supplement Their Application for Preliminary

Injunction (PI Suppl. Ex. X); Plaintiffs’ Motion Hearing (Slide X); Plaintiffs’ Notice of Filing of Supplemental Exhibits (Suppl.

Ex. X); and Defendants’ Motion (Defs’ Ex. X).

2

Plaintiffs are relying on August 2004 staffing information obtained from the FAA in 2004 (the only complete data set that has been

made available to Plaintiffs). See Decl. of William Dolan, dated Sept. 16, 2005, at ¶ 3-7, Attach. A, copy attached as Exhibit 1. The

spreadsheet provided to the Court has been redacted pursuant to Local Rule 5.4(f).

Although the parties’ staffing numbers differ, Defendants rely on the testimony of a Lockheed Martin employee to validate their

number and have not provided Plaintiffs or the Court with the underlying data. See e.g., Mot. at 21 (citing Defs’ Ex. B at ¶34).

Without discovery, Plaintiffs are unable to verify the accuracy of Defendants’ calculations.

3

It should be noted that this presentation listed both “Aging workforce” and retirement eligibility (“50% eligible to retire”) as

separate issues. Id. Thus, Defendants may not claim that “Aging workforce” was merely an ill chosen term intended to refer to the

fact that Flight Services is (incorrectly) perceived to have a largely retirement eligible workforce.

4

Defendants’ claim that Ms. Kansier’s self-serving “explanation” for her later use of the term “Retirement eligible workforce”

“forecloses the creation of a reasonable inference of age discrimination,” see Mot. at 36, is not an accurate statement of the law. Cf.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 133 (2000) (“Circumstantial evidence is not only sufficient, but may

also be more certain, satisfying and persuasive than direct evidence”) (quotation omitted). If Defendants’ assertion were true, it

would be tantamount to requiring the plaintiffs always to elicit confessions from the defendants.

5

“Aging workforce” appears in a list of problems, and it is clear that the FAA also regarded the “Aging workforce” as one more

problem. See Mot. at 35 n. 13. As the maxim noscitur a sociis states, a thing is known by its associates.

6

Although the FAA prepared the Feasibility Study in 2002, Defendants’ decision to implement a mass RIF rather than taking some

other action was made in 2005, when they decided to accept the Lockheed Martin bid.

7

Ms. Kansier was intimately involved in creating the AFSS Screening Information Request (“SIR”), and according to one report,

“Kansier had to figure out how the Federal Acquisition Regulation, on which OMB’s competitive sourcing rules are based, meshes

with FAA’s separate Acquisition Management System.” She worked on extending the competition deadline, she arranged to

lengthen the contract period from five to 10 years, and she instigated the FAA’s decision to consider technical factors more heavily

than cost in assessing the bids. See Amelia Gruber, Shifting Gears, April 1, 2005, at

http://www.govexec.com/features/0405-01/0405-01s2.htm (last accessed Sept. 9, 2005). Ultimately, Ms. Kansier’s precise role in

the FAA’s decision-making process is an important dispute of fact that precludes summary judgment. However, it is clear that she

was part of the decisional process that led to the FAA’s choice to terminate the FS Controllers’ jobs.

As courts have noted, “a defendant cannot avoid liability for discrimination with multiple layers of paper review, when the facts on

which the reviewers rely have been filtered by another employee determined to purge the labor force of protected workers.”

Roberts v. Swift & Co., 198 F. Supp. 2d 1049, 1061 (D. Iowa 2002) (“A seemingly objective decision is not free of discriminatory

animus where earlier discriminatory decisions lead to the adverse employment action”) (internal citation omitted). Ms. Kansier

may have been a step along the way to the ultimate RIF at issue here, but her statements regarding why the Agency decision was

being undertaken should most certainly be imputed to the Defendants. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 315 (5th

Cir. 2004) (“age-related remarks are appropriately taken into account when analyzing the evidence, even where the comment is not

in the direct context of the termination and even if uttered by one other than the formal decision maker, provided that the individual

is in a position to influence the decision”).

8

Defendants try desperately to isolate and detach the chain of linked decisions the FAA made to reach their ultimate goal of

terminating Plaintiffs’ federal jobs. This is evident in their efforts to isolate Ms. Kansier’s role in the decision-making process. It is

also apparent in Defendants’ collateral estoppel argument, which tries to sever the FAA’s decisions to designate Flight Services as

a commercial activity and to single out Flight Services for an A-76 study from the eventual RIF when those preliminary decisions

were necessary steps in reaching the subsequent adverse actions. See infra at 25. Because each of these decisions led to the mass

RIF, they cannot be isolated from one another, and Plaintiffs must be permitted to show how each of Defendants’ discriminatory

decisions played a necessary part in bringing about their terminations.

9

Defendants argue that Plaintiffs must use comparators to meet their prima facie burden. See Mot. at 33 n.ll. However, in George,

the D.C. Circuit “made clear” that this rigid approach to discrimination cases is legally flawed. George, 407 F.3d at 412.

Defendants’ argument that Plaintiffs must show they were treated differently than similarly situated employees “is not a correct

14

Kathleen A. BREEN, et al., Plaintiffs, v. Norman Y...., 2005 WL 2861274...

statement of the law.” While Plaintiffs can raise an inference of discrimination by demonstrating they were treated differently from similarly situated employees from outside their protected class, “this is not the only way.” Id. (discussing Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150-51 (D.C. Cir. 2004)). For example, discrimination might also be shown by the fact that the employer’s legitimate reasons are suspect. Id. Moreover, Plaintiffs maintain that the FS Controllers, as an entire workforce, were singled out and targeted for contracting out and a mass RIF, so the comparators in this case, if necessary, would be the other FAA workforces, and it is clear that these workforces were much younger on the whole. See infra at 14; Slides 1-7.

10

Defendants claim that Plaintiffs’ “mischaracterize” and “seriously distort” Defendant Blakey’s statements regarding the FS

Controllers’ retirement eligibility are not credible, and both a plain reading and the context of her statements controvert

Defendants’ claims. Like the statements previously discussed, Defendant Blakey’s references to retirement eligibility accompany

two factors that the FAA had to view as problems - AFSS costs and aging facilities - and the only reasonable conclusion is that the

employee’s older age too was viewed by the FAA as a dilemma.

11 In their Response, Defendants state that “if the agency” considered the FS Controllers’ ages “it can be perfectly proper” because it “may have an understandable concern.” See id. (emphasis added). But they conspicuously omit any affirmative assertion that their consideration of age was perfectly proper and that the FAA did have an understandable concern. Moreover, Defendants cannot assert this reason now as a post hoc justification for the FAA’s actions. See Townsend v. WMATA, 746 F. Supp. 178, 186 (D.D.C. 1990); see also Miller-El v. Dretke, 545 U.S.___, 125 S.Ct. 2317, 2328 (2005) (noting “[i]t would be difficult to credit the [defendant’s] new explanation, which reeks of afterthought” and that accepting a “substitute reason” would ignore “its pretextual timing”).

12

Compare PI Ex. 2 at ¶26; id. Art. D (projecting hiring of 436; 65 former FS Controllers and 309 younger students) with Defs’ Ex.

G at ¶7 (projecting hiring of 836; 120 former FS Controllers and presumably 716 students); compare Defs’ Ex. G at ¶7 (108 former

FS Controllers hired) with Ex. 4(15 former FS Controllers hired); see also Email from Scott Malon, dated May 26, 2005, copy

attached as Exhibit 3 (498 FS Controllers are certified and qualified to work in Tower and En Route positions); Defs’ Ex. AA at

¶14 (claiming the FAA announced 38 vacancies for displaced FS Controllers on August 22, 2005, the day the declarant executed

his declaration).

13

On July 31, 2005, the average age was only 35.5.

14

Defendants also claim that “[i]t is wholly unreasonable to read any age-based animus” from the wording of its Plan for the Future,

see Mot. at 39, but in the context of the FAA’s statements regarding “Aging workforce” and retirement eligibility and its reliance

on the Plan as an excuse for not retaining more FS Controllers, a reasonable trier of fact is capable of finding that the FAA’s words

take on a very different meaning. Cf. Forman v. Small, 350 U.S. App. D.C. 24,271 F.3d 285, 293 (D.C. Cir. 2001) (based on “a

series of comments... that implicitly referred to [plaintiff’s] age” concluding that “the employer’s correlation of old age with

declining productivity represented the very essence of age discrimination”) (citations omitted); Sperling v. Hoffmann-La Roche,

Inc., 924 F. Supp. 1396, 1408-09 (D.N.J. 1996) (denying defendant’s motion to dismiss based on complaint that asserted plaintiffs

were terminated because they were “perceived to be ‘less productive or less energetic’... because consideration of stereotypes such

as these in making employment decisions is precisely what the ADEA was intended to eradicate”) (citation omitted).

15

Defendants do not deny their actions directly contradicted the Executive Order. Nor do they explain their erratic decision to list

some, but not all, AFSSs on its 2000 and 2001 FAIR Inventories. See PI Exs. 25; 26. Nor do they justify their decision to change

the AFSSs’ “Reason Codes” before completing the Feasibility Study, which purports to assess the factors that are relevant to such

a determination. Compare Mot. at 7 n. 4 with id. at 15. Nor do they provide much justification for treating the Alaska AFSSs

differently from the other facilities (Alaska’s FS Controllers are not being RIF’ ed). Given their deviations from Agency policies

and inconsistencies, Defendants’ assertion that Plaintiffs’ arguments are “baseless” is simply disingenuous.

16

It should be noted that one of Defendants’ exhibits shows that the FAA has a history of not complying with the FAIR Act and

OMB Circular A-76 and of relying on faulty studies to support its actions. See Defs’ Ex. J at 2-3 (Nat’l Air Traffic Controllers

Assoc. v. Mineta, Case No. 99CV1152 (N.D. Ohio Feb. 4, 2005)).

17

Ms. Kansier claims that the NAATS Proposal was never given to FAA, but Walter W. Pike presented the Proposal to Defendant

Blakey in May or June 2003. Compare Defs’ Ex. A at ¶(24 with Decl. of Walter W. Pike, dated September 16, 2005, Ex. 5 hereto.

18

Specifically and in its entirety, the report’s “Conclusion” merely states:

In our opinion, FAA can realize substantial resource savings through further consolidation of AFSSs. Current technology provides

FAA the ability to provide the same or increased level of flight services from fewer numbers of facilities without compromising

safety. The following discussion summarizes FAA’s prior efforts in modernizing the flight service system, examines current

operating and cost efficiencies, and highlights potential benefits of further consolidation.

Id. Also, its allusion to having in-flight services be performed in the commercial sector was directly refuted two years later by the

15

Kathleen A. BREEN, et al., Plaintiffs, v. Norman Y...., 2005 WL 2861274...

1998 Flight Service Architecture Working Group Report. Compare id. at 9 with Defs’ Ex. Mat §§ 1.3,4.1.

19

While Defendants did not discuss the 1998 Flight Service Architecture Working Group Report in this section of their brief, they

infer elsewhere in their pleadings that the FAA was also motivated by this report. See e.g., Defs’ Stmt. of Material Facts at ¶8.

However, the report only discusses consolidating the AFSSs and reducing employees’ hours; it recommended achieving

consolidation by attrition through retirement and concluded that “[i]nflight services... should be maintained as a governmental

role” and that nearly all general aviation air/ground services are federally provided and should remain so.” See Defs’ Ex.M at §§

1.3,4.1. Thus, it does not support Defendants’ decision to terminate the FS Controllers’ jobs.

20

Defendants claim the Study was validated, but they do not specify when that so-called validation by “subject matter experts”

occurred. See Mot. at 45. However, their use of this particular terminology, which is identical to the wording of the Study, compare

id. with Defs’ Ex. Q § 2, suggests they are not referring to any validation of the Study after it was released, which is the deviation

from standard practices that Plaintiffs discuss and a departure from the recommendations of the Study itself. See Pls’ PI Appl. at

20; Defs’ Ex. Q §§ 4.2, 5 (noting its conclusions needed “further evaluation and validation”). Because five out of 10 of the FS

Controllers’ activities have Homeland Security implications, it was unreasonable for the FAA not to have validated the Study,

which was premised on assumptions that may have been incorrect. See Defs’ Ex. Q § 3.3.1.

21

Although Defendants are correct that the mixed-motive analysis is typically applied to cases where there is direct proof of

discrimination, the very case to which they cite held that plaintiffs made use circumstantial evidence and still prevail. See Mot. at

58 n. 23 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Regardless, Plaintiffs have adduced direct evidence of

Defendants’ discriminatory animus.

22

Despite Defendants’ assertion to the contrary, Plaintiffs are not attempting to collaterally attack the FAA’s decision to change

Flight Services’ designation as an independent ADEA claim. See Mot. at 70-72. As Defendants observe, Plaintiffs were required to

wait until the FAA took an adverse employment action against them before they could advance an ADEA claim, see id. at 72-77,

but this does not preclude them from now illustrating Defendants’ prior animus and discriminatory actions that paved the way for

their impending termination.

23

It is worth noting that administrative findings in an ADEA case are not binding on any District Court. See Chandler v. Roudebush,

425 U.S. 840, 863-64 (1976).

24

Despite Defendants allusions to the contrary, Plaintiffs advanced their claim pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 626(b),

not 49 U.S.C. § 4610. See Mot. at 63. See also 29 U.S.C. § 633a(c).

25

To the extent Defendants rely on the ODRA Opinion to refute specific allegations, their citations have no relation to Plaintiffs’

statements of fact. For example, Plaintiffs assert that “the Lockheed Martin proposal was the only bid that was considered to be

without a single ‘influential weakness.”’ See PI Appl. at 29. In a misplaced attempt to refute this assertion, Defendants cites to

ODRA Opinion finding 44, which contains absolutely no reference to “influential weaknesses,” and pages 67-70, which do not

identify a single “influential weakness” attributed to the Lockheed Martin bid. See Mot. at 68 (citing Defs’ Ex. Y at 19, 67-70).

26

In fact, the ODRA Opinion is riddled with facts that support Plaintiffs’ allegation that bias existed within the FAA’s bidding

process. See e.g., Defs’ Ex. Y at 45 (noting a Factor Team member was “defensive of Lockheed’s proposal” and “love[d]

Lockheed”); id. at 46 (noting a Team Leader admitted there was a problem with the processes and that one member had a “grudge”

against the MEO); id. at 62 (noting a Team member did not act in accordance with guidance given to evaluators and was offensive

and overbearing to others). These facts demonstrate irregularities in the process that is probative of Defendants’ prejudicial bias

and discriminatory pretext notwithstanding Judge Neill’s analysis of them within the context of the narrow question he was to

decide. See id. at 62-65.

27

Defendants’ reliance on Carey v. O’Donnell, 506 F.2d 107, 110 (D.C. Cir. 1974), is misplaced. This case is not “virtually

identical” as they allege. See Mot. at 63. The decision at issue in that case was the Civil Aeronautics Board’s decision to approve a

merger between two private airlines and integrate their pilots’ seniority lists, an issue wholly different from the FAA’s decision to

terminate the FS Controllers’ jobs. Moreover, the court in Carey found solace in Congress’s vesting of airline merger issues in the

Civil Aeronautics Board to include the fair and equitable integration of seniority lists. See id. By contrast, Congress has vested the

U.S. District Courts with the authority to decide ADEA claims of discrimination. See also 29 U.S.C. § 633a(c).

28

The Supreme Court has cautioned against relying on cases that are not directly on point. An obvious example of why this

admonition should be heeded, is the Circuit Courts’ misplaced reliance on Hazen Paper to foreclose disparate impact claims under

the ADEA’s private sector provision, see e.g., Mullin v. Raytheon Co., 164 F.3d 696, 699-704 (1st Cir. 1999); Gantt v. Wilson

Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir. 1998), a misreading of Hazen which was only later rectified by the Supreme

Court in Smith. See Smith, 125 S.Ct. at 1540 (“It was only after our decision in Hazen Paper..., that some of those courts

concluded that the ADEA did not authorize a disparate-impact theory of liability”).

16

Kathleen A. BREEN, et al., Plaintiffs, v. Norman Y...., 2005 WL 2861274...

29

Defendants’ discussion of legislative history relies on passages so general as to be subject to whatever interpretation Defendants

are predisposed to give them. As a case in point, Defendants contend that the disparate impact of “facially neutral policies can

hardly be described as ‘cruel’ or ‘self-defeating,’ or as ‘destroying’ the employees’ ‘spirit.”’ Mot. at 85. With these words, far from

describing an objective fact, Defendants demonstrate a callous indifference to the fate of their longstanding, loyal workforce,

which is evident in their claim that laying waste to the careers of 1,935 highly skilled federal employees is not “cruel and

self-defeating” and will not “destroy the spirit of those who want to work.” Evidently Defendants, who are not confronted with the

loss of their federal jobs, federal benefits, federal retirement, and other federal perks, can afford to be complacent about other

people’s loss of those jobs, benefits, and retirement, and perks. Or perhaps, they simply overlooked the Declarations submitted

with Plaintiffs’ Application for a Preliminary Injunction. See Exs. 1, 2, 24, 33, 34, 43-48, 57-63. Defendants’ predisposition to

trivialize the harm of disparate impact discrimination blinds them to the obvious application of the very words they cite.

30

In the history of disparate impact litigation, it has never been required that the adversely affected group be solely composed of

members of a protected class. For example, in Griggs, a neutral requirement that employees either possess a high school diploma

or pass a series of skills tests was found to pose a disparate impact on African American workers. See Griggs, 401 U.S. at 424.

There, the Supreme Court held that the employment practice had a disproportionate impact on African American workers, although

the requirements ostensibly also operated to screen out some white workers. See id. at 431 n.6 (citing North Carolina 1960 census

figures showing that 34 percent of white males possessed a high school diploma versus 12 percent of African American males and

EEOC statistics that testing procedures passed 58% of whites versus 6 percent of African Americans.) Disparate impact means

only that a facially neutral policy has a disproportionate impact on members of a protected class; it does not require the practice

have an exclusive impact on the class.

17

 
 Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 1 of 140

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 1:05CV00654-RWR

)

RAY H. LAHOOD, et al.,

)

)

Defendants

)

___________________________________ )

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants, by their undersigned attorneys, hereby move, pursuant to Rule 56, Federal Rules of Civil Procedure, for summary judgment. The grounds for this motion are that defendants are entitled to judgment as a matter of law and that there are no genuine issues with respect to any facts material to defendants’ entitlement to judgment as a matter of law. In support of this motion, defendants rely on, and respectfully refer the Court to: – The memorandum of points and authorities, filed herewith; – Defendants’ statement of material facts as to which there are no genuine issues, filed herewith; – The depositions taken in this action. The portions of the depositions cited and discussed in the accompanying memorandum are excepted and filed herewith; – The declarations of Norman Y. Mineta, Maureen A. Vorce, and Aaron McDaniel, all filed herewith;

Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 2 of 140
– The declarations previously filed in support of defendants’ August 24, 2005 motion to dismiss or, in the alternative, for summary judgment (Docket # 23), of which the following are cited in the accompanying memorandum and refiled herewith: Declarations of Marion C. Blakey, Daniel J. Courain, Dennis DeGaetano, John Hennigan, Joann Kansier, Wanda Reyna, Paul J. Sheridan, James H. Washington, and George W. Williams, Jr. – The reports of defendants’ experts William J. Carrington, Bernard R. Siskin, and William D. Turner; and – The exhibits filed herewith and individually listed in the index of exhibits also filed herewith (the exhibit styled “NAATS proposal,” though filed herewith as an exhibit for the convenience of the Court, is not relied upon but is discussed in the accompanying memorandum for the limited purpose of demonstrating that, even assuming its genuineness and admissibility, no genuine issue with respect to defendants’ entitlement to summary judgment is raised). In addition, defendants cite and file for the convenience of the Court the report of plaintiffs’ liability-issues expert, Dale Belman. Although defendants do not rely on Belman’s report, that report is discussed in the accompanying memorandum for the limited purpose of demonstrating that, even assuming its admissibility, no genuine issue with respect to defendants’ entitlement to summary judgment is raised. A proposed order is submitted herewith.
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 3 of 140

Respectfully submitted,
TONY WEST Assistant Attorney General
JEFFREY A. TAYLOR United States Attorney
STUART A. LICHT Assistant Branch Director Civil Division

Of Counsel:
Eden Brown Gaines, Esq. Michael Doherty, Esq. Julia A. Rhodes, Esq. Personnel & Labor Law Staff Office of Chief Counsel Federal Aviation Administration 600 Independence Ave., S.W. Room 1E100 Washington, D.C. 20591 Phone: (202) 385-8254 Fax: (202) 493-5085

/s/ Brian G. Kennedy BRIAN G. KENNEDY (DC Bar No. 228726) ADAM D. KIRSCHNER (IL Bar No. 6386601)
United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7126 Washington, D.C. 20530 Telephone: (202) 514-3357 Fax: (202) 616-8470 Email: brian.kennedy@usdoj.gov
Attorneys for Defendants

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 4 of 140

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 1:05CV00654-RWR

)

RAY H. LAHOOD, et al.,

)

)

Defendants

)

____________________________________)

DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE ARE NO GENUINE ISSUES

Pursuant to Local Rule 7.1(h), defendants hereby submit the following statement of

material facts as to which there are no genuine issues with regard to their motion for summary

judgment:

1. At the time of the Reduction in Force (RIF) of Flight Service Specialists (October

3, 2005), the Air Traffic Organization (“ATO”) in the FAA administered the air

traffic control functions within the FAA, including en route, terminal, and flight

service functions. See FAA Organizational Chart, June 18, 2004, Ex. 31.

2. Terminal (including tower and terminal radar approach and non-radar approach)

and en route controllers are air traffic controllers who are actively engaged in the

separation and control of air traffic. Sheridan Decl. (Docket # 23-6) ¶ 7; Reyna

Decl. (Docket # 23-10) ¶ 4; Report of Defs.’ Expert William D. Turner (“Turner

Rep’t”) at 3-4.

3. Flight service specialists are controllers actively engaged in providing preflight,

inflight, and airport advisory service to aircraft operators. See Elias Dep. 29-31;

Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 5 of 140
Currier Dep. 15; Jensen Dep. 25; Mitchell Dep. 15; Turner Rep’t at 5-6.1 4. The primary function of flight service specialists is to provide meteorological and
aeronautical information to assist pilots in planning a safe flight. See Sheridan Decl. ¶ 4; Pls.’ Response to Dfs.’ Stm’t of Material Facts as to Which There are No Genuine Issues, September 16, 2005 (Docket #31-2) (“Pls.’ Resp.”) ¶ 43. 5. Unlike aircraft separating controllers, flight service specialists are not authorized to direct pilots with air traffic control instructions used to separate planes. See Brydon Dep. 30; Turner Rep’t at 3-5; Jackson-Brame Dep. 26-27; Sheridan Decl. ¶¶ 7-8; Reyna Decl. ¶ 6; Mitchell Dep. 20; Sturgell Dep. 52. 6. Flight service specialists cannot immediately move into non-developmental positions as terminal or en route controllers without training and certification. Reyna Decl. ¶ 6. 7. Flight service specialists do not have policy-level decision-making authority or the ability to bind the Government to one course of action over another, in the performance of their duties. Sheridan Decl. ¶¶ 4, 6, 8; Pls. Resp. ¶ 46. 8. FAA flight service had never been the sole source for all pilots to obtain weather briefings and file flight plans. See Elias Dep. 95; Sturgell Dep. 52. 9. Commercial airlines have relied on their own or a contractor’s employees to perform such functions. See Elias Dep. 95; Sturgell Dep. 52; Brydon Dep. 44;
1 In citing depositions, names of deponents who are plaintiffs (including dismissed plaintiff Dodson) are in italics. Names of other deponents are in plain type. The table of persons includes a brief identification of deponents’ roles in the case. The deposition excerpts are not cited by exhibit numbers in the brief, but are given exhibit numbers and listed in the index to exhibits in alphabetical order.
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 6 of 140
Brown Dep. 52; Sheridan Decl. ¶ 12. 10. Some general aviation pilots have used private companies instead of FAA flight
services for weather briefings and flight planning. Brown Dep. 52. 11. There were 35% more licensed pilots in the United States in 1980 than there were
in 2005. See FAA Certificate Pilots 1929-2007, http://www.aopa.org/whatsnew/stats/pilots.html (last visited April 22, 2009). 12. The number of general aviation hours flown declined during the quarter century preceding the 2005 RIF of flight service specialists. U.S. General Aviation Accidents, Fatalities, and Rates – 1938 -2005, http://www.aopa.org/special/newsroom/stats/safety.html (last visited April 22, 2009). 13. The number of general aviation hours flown in 2005 were less than 70% of the hours flown in 1980. Id. 14. During the years preceding the RIF, there was an increasing ability and demand for some services previously provided by Automated Flight Service Station (“AFSS”) to be provided on-line. Sheridan Decl. ¶ 6; Pike Dep. 33-34; Shew Dep. 50; Pls.’ Resp. ¶ 47. 15. During a single ten-year span, fiscal 1994 through fiscal 2003, the number of pilot briefings conducted by specialists declined by 26%, the number of flight plans filed through specialists declined by more than 12%, and the number of aircraft contacted by specialists fell nearly 40%. See FAA Air Traffic Activity Statistics, Exs. 2-3.
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 7 of 140
16. The FAA initiated a modernization plan in 1978, relying on consolidation and automation. The FAA consolidated from 318 Flight Service Station into 61 automated Flight Service Stations. The FAA retained 14 non-automated stations in Alaska as part of the consolidation plan. Flight Service Modernization Plan, 45 FED. REG. 26202 (April 1, 1980); 1996 Office of the Inspector General Report 1996 (“1996 IG Report”), Ex. 5, at 2-3, 5; Flight Service Architecture Core Group Report, April 30, 1998, Ex. 6, at 4-1, P00768.
17. This consolidation process had not been completed by 1996, when the FAA still had 16 non-automated stations to close in the contiguous United States. The closing of these 16 stations were included in the FAA’s FY 1997 budget submission. 1996 IG Report at 2.
18. In the years preceding the RIF, the number of Flight Service Specialists being hired by the FAA was declining. Department of Transportation and Related Agencies Appropriations for 1998: Hearing Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on Appropriations, 105th Cong. 48 (1997) (statement of Michael F. McAnaw); Breen Dep. 142.
19. In the years preceding the RIF, the number of Flight Service Specialists being employed by the FAA was declining. Department of Transportation and Related Agencies Appropriations for 1998: Hearing Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on Appropriations, 105th Cong. 48 (1997) (statement of Michael F. McAnaw); Breen Dep. 142.
20. A potential source for substantial savings for the FAA in the years preceding the
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 8 of 140
RIF was to further consolidate the number of offices that the FAA used to provide flight services. 1st Hennigan Dep. 129; Pls.’ Resp. ¶ 47. 21. Several internal and external studies, conducted from 1996 through 2001, found that the FAA could provide AFSS services differently and in a more cost effective manner. See Hennigan Decl. (Docket # 23-19) ¶ 10; Pls.’ Resp. ¶ 7. 22. Several internal and external reports to the FAA that were issued between 1996 and 2001 recommended further consolidation of flight service stations. These reports include 1996 and 2001 Office of Inspector General reports, 1997 National Civil Aviation Review Commission (“NCARC”) Report, and 1998 FAA Flight Service Architecture Core Group Report. See Exs. 5-7; NCARC Final Report, http://www.library.unt.edu/gpo/NCARC/reports/pepele.htm, Part II, § V.C. (last visited April 22, 2009) (“NCARC Report”). 23. The 1996 and 2001 Inspector General reports concluded that efficiencies and cost savings could be realized from restructuring and consolidating the services performed at automated flight service stations. Henningan Decl. ¶¶ 11,13; Pls.’ Resp. ¶ 8; 1996 IG Report; 2001 Office of the Inspector General Report (“2001 IG Report”), Ex. 7. 24. In its 1996 report, the Inspector General recommended that the FAA should “consider having the private sector provide the full range of flight services.” 1996 IG Report at 8. 25. In its 2001 report, the Inspector General estimated that the FAA could realize cost savings of nearly $500 million over seven years by consolidating the FAA’s
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 9 of 140
existing 61 automated flight service stations. See 2001 IG Report at 1; Pls.’ Resp. ¶ 9. 26. In addition, the Inspector General determined that consolidation of the existing automated flight service stations could be accomplished “without degradation to safety or service.” 2001 IG Report at 1; Pls.’ Resp. ¶ 10. 27. The 1997 NCARC Report concluded that the FAA could save over $1 billion through consolidating flight service stations and by expanding the use of Direct User Access Terminal Service to provide pre-flight briefings, weather briefings, and flight plan filings. NCARC Report, Part II, § V.C. 28. The NCARC also concluded that the FAA could accomplish these savings “while maintaining or improving safety and existing services to the general aviation community.” Id. 29. The April 1998 Flight Service Architecture Core Group Report recommended consolidation of AFSS facilities after assessing operational demand. Henningan Decl. ¶¶ 12; Pls.’ Resp. ¶ 8; Flight Service Architecture Core Group Report, April, 1998, Executive Summary, Ex.6, at P00760. 30. The 1997 FAA Financial Assessment by Coopers and Lybrand, LLP noted that the “consolidation of flight services will ultimately produce savings for the FAA.” Coopers & Lybrand Study, §VI(C), Ex. 4 at D004850. 31. Pursuant to Office of Management and Budget (OMB) Circular No. A-76 and the Federal Activities Inventory Reform (FAIR) Act of 1998, agencies are directed to classify, on an annual basis, all activities performed by government personnel as
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 10 of 140
either commercial or inherently governmental. See Hennigan Decl. ¶¶ 2, 8; Pls.’ Resp. ¶ 1. 32. In 2001, President Bush placed the Competitive Sourcing Initiative on his management agenda in an effort to expand competitions under OMB Circular A76. See Mineta Decl. ¶¶ 6-9; Hennigan Decl. ¶ 9; Pls.’ Resp. ¶ 3. 33. Secretary of Transportation Norman Mineta took the President’s Management Agenda very seriously. See Mineta Decl. ¶ 6. 34. President Bush’s management agenda for fiscal 2002 required federal agencies to do a cost comparison (to determine if the function could be performed more efficiently by a private company) or directly convert 15% of its commercial activity inventory (using the calendar year 2000 FAIR Act Inventory as a baseline), and that this be accomplished by the end of fiscal year (FY) 2003. See President’s Management Agenda, Fiscal Year 2002, Ex. 8, at 18; Hennigan Decl. ¶ 9; Pls.’ Resp. ¶ 4. 35. In fiscal 2002, while preparing its budget request for fiscal 2003, the FAA had asked the President to ask Congress for budget authority to buy modern software for its AFSSs. Bertram Dep. 21-24. 36. The Office of Management and Budget informed the FAA that it would not budget money for all of the modern software that the FAA requested for AFSSs, but rather noted that the FAA should consider consolidating AFSSs. Id. at 23. 37. Chris Bertram, the FAA’s Chief Financial Officer, suggested that, rather than simply consolidating the flight service stations, the agency should use the A-76
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 11 of 140
process to consider how to more efficiently provide flight services. Id. at 28. 38. The FAA had been under pressure during fiscal 2002 to save money. Id. at 28-29. 39. The FAA was also under pressure to consider functions for possible competitive
sourcing. Id. at 28-29; 1st Hennigan Dep. 51, 58; Hennigan Decl. ¶¶ 9, 16. 40. On June 19, 2002, Bertram issued a memorandum to the Administrator of the
FAA Jane Garvey, informing her that the Office of Financial Services for the FAA had determined that the FSS function, except in Alaska, should be used to meet the current OMB requirements for competitive sourcing. See Bertram Memorandum to Administrator, June 19, 2002, Ex. 10. 41. Betram informed the Administrator Garvey in that June 19, 2002, memorandum that according to instructions from OMB, federal agencies must complete publicprivate or direct conversion competition on not less than 15 percent of the full time equivalent positions, approximately 1,100 positions for the FAA, listed on their FY 2000 commercial activity inventory by the end of FY 2003. Id. 42. In that same memorandum, Bertram informed the Administrator Garvey that the FAA had engaged an outside contractor to perform a feasibility study to clarify the scope of the review. Id. 43. The feasibility study performed by Grant Thornton, completed in July 2002, determined that the AFSS function was a strong candidate for competitive sourcing because (i) private companies could accomplish the work; (ii) private companies were interested in bidding for and performing the work; and (iii) outsourcing would not compromise safety or homeland security. Hennigan Decl.
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¶¶ 14-15; Pls.’ Resp. ¶ 14. 44. On August 21, 2002, Bertram wrote to the Acting Administrator of the FAA
Monte Belger that Bertram had accepted the results of the feasibility study and decided to proceed with a study of the FSS function for competitive sourcing excluding the FSS function in Alaska. Memorandum from Bertram to Acting Administrator, August 21, 2002, Ex 11. 45. Bertram informed Acting Administrator Belger in that memorandum that competitive sourcing is one of the five initiatives in the President’s Management Agenda and that the study of flight services is a central part in the FAA’s efforts to meet the requirements of the initiative. Id. 46. In this August 21, 2002, memorandum, Bertram stated that Alaska would be excluded from the study because of the unique nature and requirements of aviation in Alaska. Id. 47. The flying conditions in Alaska are unique compared to the rest of the United States. See Sturgell Dep. 79-80; Alaska Aviation, Field Hearing Before the S. Comm. on Commerce, Science & Transportation 109th Cong. 49 (2005) (Statement of Phil Brown, Director, NAATS Alaska Region). 48. Bertram did not consider the age of the flight service specialists in reaching the decision to study the flight service function pursuant to Circular A-76. Bertram Dep. 111. 49. Bertram’s decision to subject flight service stations to the A-76 process was based on budgetary and financial concerns. Bertram Dep. 107.
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50. Bertram did not know the age of the flight service workforce. Bertram Dep. 111. 51. Bertram’s deputy, John Hennigan, did not consider the age of the flight service
specialists in any of the decisions he made in considering the flight service function for competitive sourcing. Hennigan Decl. ¶ 23; 1st Hennigan Dep. 164-65. 52. Even if Hennigan had considered the age of the flight service specialists, he would have taken the same actions to comply with the President’s Management Agenda. Hennigan Decl. ¶ 23. 53. In September 2002, the FAA transmitted to the Department of Transportation (DOT) a list of functions to be included on the 2002 FAIR Act Commercial Activities Inventory. This list included functions performed by Flight Service Specialists. Id. Hennigan Decl. ¶ 6; Pls.’ Resp. ¶ 16. 54. Hennigan’s office was in charge of putting together the FAIR Act Inventory for the FAA. 1st Hennigan Dep. 27. 55. Hennigan did not consider the age of the employees in making a determination or recommendation concerning what should be listed in the FAIR Act Inventory as inherently governmental or a core function of the FAA. Hennigan Decl. ¶ 23; 1st Hennigan Dep. 164-65. 56. In March 2003, the National Association of Air Traffic Specialists (“NAATS”) challenged the FAA’s inclusion of Flight Service Specialist functions on the Commercial Activities Inventory. Hennigan Decl. ¶ 17; Pls.’ Resp. ¶ 17. 57. In April 2003, the FAA denied NAATS’ challenge and NAATS appealed to the
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DOT. Hennigan Decl. ¶¶ 18-19; Pls.’ Resp. ¶ 18. 58. On May 9, 2003, DOT upheld the FAA’s decision. Hennigan Decl. ¶ 20; Pls.’
Resp. ¶ 19. 59. There were six workgroup job functions delineated in the 2002 FAIR Act
inventory that had more than 1,101 full time equivalent positions. Report of Defs’ Expert Bernard R. Siskin (“Siskin Rep’t”) ¶ 10. 60. The selection of the flight service function to be competitively sourced is not statistically significantly different from what one would expect from an ageneutral process in which the FAA selected amongst job functions delineated on the 2002 FAIR Act Inventory that each had more than 1,101 full time equivalent positions. Id. 61. The selection of the flight service function to be competitively sourced is not statistically significantly different from what one would expect from an ageneutral process in which the FAA selected amongst multiple job functions delineated on the 2002 FAIR Act Inventory that in the aggregate had more than 1,101 full time equivalent positions. Id. at ¶ 11. 62. Amongst the employees in the six job functions delineated on the 2002 FAIR Act Inventory that had more than 1,101 full time equivalent positions, the decision of which functions were identified as commercial and which functions were identified as inherently governmental on the 2002 FAIR Act Inventory had no adverse impact on older workers. Id. at ¶ 33. 63. Amongst the employees in job functions delineated on the 2002 FAIR Act
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Inventory that had more than 1,101 full time equivalent positions that were considered performing commercial and non-core functions of the FAA, the decision to select flight service for a public-private competition had no adverse impact on older workers. Id. at ¶¶ 23, 33. 64. Amongst the employees in the job functions delineated on the 2002 FAIR Act Inventory with more than 1,101 full time equivalent positions, any statistically significant adverse impact on older workers was due to the decision that functions concerned with the separation and control of aircraft were core FAA functions. Id. at ¶¶ 31, 33, 34. 65. As stated in a December 18, 2002, memorandum, Secretary Mineta determined that air traffic control services provided at FAA’s en route and larger terminal facilities are core functions of the FAA. Mineta Determination, December 18, 2002, Ex. 27. 66. In making that determination, Secretary Mineta considered how significant tower and en route controllers are in maintaining the safety and security of the national airspace. Declaration of Norman Mineta ¶ 14; Mineta Determination, December 18, 2002 at P01271. 67. The ages of flight service specialists did not factor into Secretary Mineta’s decision not to subject air traffic control services at en route and larger terminal facilities to competitive sourcing. Mineta Decl. ¶ 16. 68. In early 2003, Joann Kansier became head the Office of Competitive Sourcing (“ACA”). Kansier Decl. (Docket # 23-4) ¶ 1; Kansier Dep. 29-37; DeGaetano
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Dep. 50-51. 69. Marilyn Jackson-Brame became the deputy director of ACA. Jackson-Brame
Dep. 40-42, 210-11. 70. Kansier had not been involved in the prior decision of Bertram’s Office of
Financial Services that flight service would be the subject of an A-76 study. Kansier Dep. 30, 33-34; Kansier Decl. ¶ 3. 71. Jackson-Brame had been involved in the prior discussions of whether to have an A-76 study for flight services. Jackson-Brame Dep. 93-97. 72. Jackson-Brame had been against having the study. Id. at 111-12. 73. One of the first steps performed by ACA was to put together a Performance Work Statement (“PWS”), setting forth for all potential bidders on a uniform basis the requirements for which they were required to propose solutions. Kansier Decl. ¶ 5. 74. A team formed to develop the PWS met in Washington from March 25-27, 2003, to receive initial training. Jackson-Brame Dep. 103-105; The Briefer, An Update on the AFSS A-76 Study, April, 2003, Ex. 15, at P01274. 75. The PWS team was comprised of FAA management from flight services, NAATS union members, and contract support from Grant Thornton. Hopkins Dep. 80-85; The Briefer, An Update on the AFSS A-76 Study, April, 2003, at P01274. 76. In early June, the ACA’s Acquisition Team published a Request for Information to solicit input from all interested parties. The Briefer, An Update on the AFSS A-76 Study, June, 2003, Ex. 16, at P01278.
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77. By August, ACA had received 18 responses, including from the working group that was the precursor to the in-house government bidder, and had followed-up with one-on-one sessions with the respondents. The Briefer, An Update on the AFSS A-76 Study, August, 2003, Ex. 17, at P01283.
78. On December 19, 2003, the FAA announced that the functions performed at the automated flight service stations (excluding those in Alaska) would be bid for competition pursuant to OMB Circular No. A-76. See DeGaetano Decl. ¶ 3; Hennigan Decl. ¶ 21; FAA Notice of Intent to Conduct Competition, Ex. 32; Pls.’ Resp. ¶ 22.
79. As part of that announcement and a draft solicitation, the FAA released the draft PWS. FAA Notice of Intent to Conduct Competition; Kansier Decl. ¶ 7.
80. A formal Request for Offers was released in May 2004 to the five private sector Potential Service Providers who had been selected to compete in the competition and to the Most Efficient Organization, the FAA’s in-house bidder. Kansier Decl. ¶¶ 2,8, 9.
81. Both the in-house government bidder, the Most Efficient Organization (“MEO”), and outside vendors presented their technical proposals in August 2004 and their cost proposals in September 2004. Id. at ¶ 11.
82. A technical evaluation team (“TET”) evaluated the technical aspects of the proposals and a cost evaluation team (“CET”) evaluated the cost aspects of the proposals. Id. at ¶ 12.
83. The TET included at least twenty-six core members of the team and a total of
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approximately sixty individuals who served as either advisors or evaluators. Neill Opinion, Public Version (“Neill Opinion”), Ex. 18, at 20; Defs’ Responses To Pls’ 3d Set of Interrogatories, Ex. 19, at 18-19. 84. Judge Edwin B. Neill of the General Services Administration Board of Contract Appeals, sitting as a special master in the appeal of the award to Lockheed Martin before the FAA’s Office of Dispute Resolutions, described the experience and background of the TET team as highly impressive. Neill Opinion at 20. 85. The “core” of the separate cost evaluation team included at least thirteen members. Defs’ Responses To Pls’ 3d Set of Interrogatories at 19. 86. After evaluating the proposals, the technical team rated the proposal submitted by Lockheed Martin as “excellent” on each of four factors (each of which was itself an amalgam of identified strengths and weaknesses) while the technical team rated the MEO proposal as “good” on one factor and satisfactory on the other three. Neill Opinion at 54-55. 87. The cost team concluded that Lockheed’s bid was more than 5% less costly than the MEO’s proposal. Id. at 52. 88. The Technical Evaluation Team and the Cost Evaluation Team each submitted a report to the Source Selection Evaluation Board (“SSEB”). Kansier Decl. ¶ 16. 89. Jackson-Brame, who was a member of the technical team, concluded that Lockheed had the best bid. Jackson-Brame Dep. 208–09. 90. The SSEB, co-chaired by Kansier and contracting officer Donald King, also included both technical and cost experts. Kansier Decl. ¶ 16.
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91. The SSEB rejected the findings of “one influential weakness and one lesser weakness” thought by the technical team to have beset the MEO’s proposal, and likewise rejected the finding of one of the cost risks “said to be present in the MEO proposal.” Neill Opinion at 55-57, 99.
92. The SSEB concluded that Lockheed had the “‘best technical solution’” and “‘clearly provided the greatest benefit to the Government.’” Neill Opinion at 100.
93. The age of the employees was not a factor in the SSEB’s deliberations. Declaration of Maureen A. Vorce ¶4; Kansier Decl. ¶ 26.
94. On January 31, 2005, concurring with the recommendation of the SSEB, the Source Selection Authority, Dennis DeGaetano, decided that what he knew as “PSP2, which turned out to be Lockheed Martin,” had the best bid. DeGaetano Decl. (Docket # 23-29) ¶ 7.
95. DaGaetano made his decision on a “‘best value basis,’” considering “the combination of the impact of the overall benefits, risk, and cost for delivery of services to support safe and efficient flight.” Id. at ¶ 7.
96. DaGaetano concluded that “[e]ven though the PSP2 proposal cost more than the PSP1 [another private company] proposal, the technical superiority of the PSP 2 proposal [was] worth the price difference.” Id.
97. In February 2005, the FAA announced its decision to select Lockheed Martin as the vendor to perform the functions of automated flight service stations (excluding those in Alaska). Id. at ¶ 4; Pls.’ Resp. ¶ 28.
98. DeGaetano did not consider the age of the workforce in making his decision.
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DeGaetano Dep. 98; DeGaetano Decl. (Docket # 23-29) ¶ 8. 99. Even if DeGaetano considered the age of the workforce, he would still have
selected Lockheed Martin because he considered its proposal to represent the best value based on non-age reasons. DeGaetano Decl. (Docket # 23-29) ¶ 8. 100. Compared to the status quo ante, the FAA has estimated that the contract will save taxpayers more than $2 billion. Original Estimate of AFSS Income and Cost Summary, Ex. 21; Reforecast Estimate of AFSS Income and Cost Summary, Ex. 22; March 31, 2008, Automated Flight Service Station Program: 90-Day Progress Report to the House Aviation Subcommittee (Madera Dep. Ex. 2), Ex. 20, at 3-4; September 30, 2007, Automated Flight Service Station Program: 90-Day Progress Report to the House Aviation Subcommittee (Madera Dep. Ex. 1), Ex. 33, at 3. 101. Following the February 1, 2005 award of the AFSS contract to Lockheed Martin, Agency Tender Official (ATO), James H. Washington, filed a contest on behalf of the Most Efficient Organization to challenge the contract decision. Washington Decl. (Docket # 23-35) ¶ 5; Pls.’ Resp. ¶ 34. 102. In March 2005, the principal named plaintiff in this suit, Kathleen A. Breen, filed a separate contest and also intervened in the ATO contest. Neill Opinion at 3; Pls.’ Resp. ¶ 36. 103. Plaintiff Kathleen A. Breen filed the contest as the agent for the majority of the affected FAA employees. Neill Opinion at 3; Pls.’ Resp. ¶ 37. 104. Breen was the President of NAATS at the time of the contest. Neill Opinion at 3 105. The FAA appointed Judge Edwin B. Neill of the General Services Board of
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Contract Appeals to serve as the Special Master to make findings and recommendations on the resolution of the contest. Neill Opinion at 3-4; Pls.’ Resp. ¶ 38. 106. Judge Neill issued a decision, totaling approximately one hundred pages, that rejected in their entirety the claims of the ATO and Breen. Neill Opinion; Pls.’ Resp. ¶ 39. 107. On July 20, 2005, the FAA Administrator, Marion Blakey, issued an Order adopting Judge Neill's findings of fact and recommendations in full. FAA Order 05-348, Ex. 25; Pls.’ Resp. ¶ 40. 108. While the procurement had been proceeding before the Office of Competitive Sourcing, Blakey, knowing that she would later decide any bid contest, had been “in the bubble, which meant” that she “was not involved with the procurement.” Blakey Dep. 85. 109. The age of the employees did not play a role in Blakey’s decision to accept Neill’s recommendations. Blakey Decl. (Docket # 23-36) ¶ 5; Blakey Dep. 228. 110. The extent to which the employees were retirement eligible was not a factor in Blakey’s decision to accept Neill’s recommendations. Blakey Decl. (Docket # 23-36) ¶ 5 111. The FAA issued RIF Notices on or about July 22, 2005, to all AFSS employees covered by the Lockheed Martin contract who would be separated from employment with the FAA after October 3, 2005. 1st Williams Decl. (Docket # 23-34) ¶ 6; Pls.’ Resp. ¶ 48.
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112. James Washington, the Vice President of Flight Services at the time of the RIF, requested the administration of the RIF of all AFSS employees excluding those in Alaska because their positions were being eliminated by the conversion of their responsibilities from the FAA to Lockheed Martin. Washington Decl. ¶ 4.
113. The ages of the employees did not factor into Washington’s request for the administration of the RIF of all AFSS employees excluding those in Alaska. Id. at ¶ 6.
114. The RIF occurred on October 3, 2005. William Dep. 45.

Respectfully submitted,
TONY WEST Assistant Attorney General
JEFFREY A. TAYLOR United States Attorney
STUART A. LICHT Assistant Branch Director Civil Division

Of Counsel:
Eden Brown Gaines, Esq. Michael Doherty, Esq. Julia A. Rhodes, Esq. Personnel & Labor Law Staff Office of Chief Counsel Federal Aviation Administration 600 Independence Ave., S.W. Room 1E100 Washington, D.C. 20591 Phone: (202) 385-8254 Fax: (202) 493-5085

/s/ Brian G. Kennedy BRIAN G. KENNEDY (DC Bar No. 228726) ADAM D. KIRSCHNER (IL Bar No. 6386601)
United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7126 Washington, D.C. 20530 Telephone: (202) 514-3357 Fax: (202) 616-8470 Email: brian.kennedy@usdoj.gov
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MARY E. PETERS, et al.,

)

)

Defendants

)

)

Case No. 1:05CV00654-RWR
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 24 of 140
TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................................................................................iv TABLE OF ABBREVIATIONS..................................................................................................xiii TABLE OF CITED INDIVIDUALS............................................................................................xvi EXHIBITS..................................................................................................................................xviii EXPERT REPORTS..................................................................................................................xxiii INTRODUCTION...........................................................................................................................1 STATEMENT OF THE CASE........................................................................................................3
1. FUNCTIONS OF FLIGHT SERVICE SPECIALISTS...........................................3 2. JOB PRE-REQUISITES, TRAINING, AND COMPENSATION..........................5 3. THE LONG DECLINE IN THE DEMAND FOR FLIGHT SERVICE
SPECIALISTS’ WORK...........................................................................................8 a. Decline In Flights In Portion Of Aviation Community Served By FAA
Flight Service...............................................................................................8 i. Aviation Community Served By FAA Flight Service.......................8 ii. The Long-Term Decline In General Aviation Flying.....................10 b. The Rise Of Automated Alternatives To Flight Services............................11 c. Decline In Measures Of Flight Service Activity........................................14 4. THE 1978-1997 CONSOLIDATION OF FLIGHT SERVICE.............................14 5. SLOWDOWN IN NEW HIRES AND THE RESULTANT AGING OF THE WORKFORCE......................................................................................................15 6. CALLS FOR FURTHER CONSOLIDATION OF FLIGHT SERVICES............16 7. GOVERNMENT-WIDE POLICIES TO CONSIDER COMPETITION FOR COMMERCIAL ACTIVITIES.............................................................................17 8. THE DECISION TO CONSIDER FLIGHT SERVICE FOR A PUBLIC-

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PRIVATE COMPETITION...................................................................................19 9. THE PUBLIC-PRIVATE COMPETITION..........................................................23 10. ESTIMATED SAVINGS TO TAXPAYERS........................................................28 11. LOCKHEED’S PROMISES TO RETAIN INCUMBENT EMPLOYEES FOR
LIMITED TIME....................................................................................................29 12. REDUCTION IN FORCE AND LEGAL CHALLENGES TO LOCKHEED
CONTRACT..........................................................................................................29 ARGUMENT.................................................................................................................................32
I. THE ONLY PERSONNEL ACTION AT ISSUE IN THIS CASE, THE RIF, WAS FREE OF ANY AGE DISCRIMINATION.................................................32 A. The Indiscriminate RIF Of Old And Young Flight Service Specialists Was Not Discriminatory....................................................................................32 B. Older Workers Were Not Disproportionately Harmed By The Reduction In Force..........................................................................................................35 C. The Plaintiffs Have Not Properly Raised Any Claim With Regard To PostRIF Hiring, And In Any Event Have Not Shown Any Discrimination With Respect To Such Hiring.............................................................................38 1. Because Plaintiffs’ Notice Of Intent To File Civil Action Did Not Raise Any Claim Of Discrimination In Later Hiring Of Specialists For Other FAA Positions, The Court Lacks Jurisdiction Over Such Claims............................................................................................38 2. Plaintiffs Have Not Shown That, In Selecting Among Former Flight Service Specialists For Different Positions, Defendants Discriminated On The Basis Of Age..............................................41 D. Plaintiffs Did Not Raise Any Claims With Respect To The FAA’s Continued Direct Performance Of Flight Service In Alaska, Which In Any Event Was Justified Under The Unique Conditions Present In Alaska.....44
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II. PLAINTIFFS’ ATTEMPTS TO CHALLENGE UNDERLYING STRUCTURAL DECISIONS THAT WERE NOT PERSONNEL ACTIONS WOULD RESULT IN AN UNWARRANTED EXPANSION OF THE SCOPE OF THE ADEA.....49
III. THE DECISIONS THAT LED TO THE RIF WERE NOT DISCRIMINATORY.............................................................................................54
A. The Court Should Not Substitute Its Judgment For An Employer’s Judgment To Have A RIF...........................................................................55
B. There Was Not A Discriminatory Decision To Have A RIF......................57
C. Plaintiffs’ Statistical Evidence Does Not Support A Conclusion That The RIF Was Discriminatory............................................................................59
1. Plaintiffs’ Statistical Evidence Does Not Support A Conclusion That There Was Disparate Treatment...........................................59
2. Plaintiffs’ Statistical Evidence Does Not Support A Conclusion That There Was A Disparate Impact on Older Workers...............63
D. Defendants’ Designation Of Flight Service Specialist Positions As Commercial Was Correct Rather Than Discriminatory............................64
E. Plaintiffs’ Assertion That The FAA Should Have Outsourced Aircraft Separating Controllers Rather Than Flight Service Specialists Does Not Establish Any Age Discrimination.............................................................68
F. The Determination By FAA’s Office of Financial Services That Flight Services Was A Suitable Subject For A Competitive Sourcing Study Was Not Based On Age......................................................................................72
G. The Agency’s Decision That Lockheed’s Bid Offered Taxpayers The Best Value Was Not Based On Age....................................................................78
1. The Alleged “NAATS Proposal”...................................................78
2. The Decision That Lockheed’s Bid Was Best................................83
H. Even If Plaintiffs Had Demonstrated That Consideration of Age Played Role In The Decisions They Challenge, Defendants Would Have Made The Same Decisions..........................................................................................90
CONCLUSION..............................................................................................................................92
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TABLE OF AUTHORITIES

CASES

PAGE(S)

Abbate v. Cendant Mobility Services Corp., 2007 WL 2021868 (D. Conn. July 13, 2007) ................................................................. 40

Adeyemi v. District of Columbia, 525 F.3d 1222 (D.C. Cir. 2008) ...................................................................................... 55

Alaska Professional Hunters Ass'n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999) ...................................................................................... 47

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ........................................................................................................ 44

Alexander v. Denver-Gardner Co., 415 U.S. 36 (1974) .......................................................................................................... 89

* Aliotta v. Bair, 576 F. Supp. 2d 113 (D.D.C. 2008) ................................................................ passim

Baqir v. Principi, 434 F.3d 733 (4th Cir. 2006) .......................................................................................... 90

Barnette v. Chertoff, 453 F.3d 513 (D.C. Cir. 2006), ....................................................................................... 65

* Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008) ................................................................................. passim

Breen v. Mineta, 2005 WL 3276163 (D.D.C. Sept. 30, 2005) ................................................................... 35

Breen v. Peters, 474 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................. 63, 87

Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) ............................................................................................ 39

Burger v. New York Inst. of Technology, 94 F.3d 830 (2d Cir. 1996) ............................................................................................. 33

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 28 of 140
Campbell v. PMI Food Equip. Group, 509 F.3d 776 (6th Cir. 2007) .......................................................................................... 34
Chemung County v. Dole, 804 F.2d 216 (2d Cir. 1986) ...................................................................................... 14-15
City of Pierre v. FAA, 150 F.3d 837 (8th Cir. 1997) .............................................................................. 13, 14, 15
Cochrane v. Norton, 2003 WL 21768006 (N.D. Cal. July 28, 2003) ............................................................... 77
Coghlan v. Peters, 555 F. Supp. 2d 187 (D.D.C. 2008) .................................................................................. 7
Cox v. Infomax Office Sys., Inc., 2009 WL 124700 (S.D. Iowa. Jan. 16, 2009) ................................................................. 78
Davis v. United States, 849 F.2d 549 (7th Cir. 1987) ............................................................................................ 3
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) .......................................................................................................... 90
Doan v. Seagate Technology, Inc., 82 F.3d 974 (10th Cir. 1996) .......................................................................................... 43
Douglas v. Donovan, 559 F.3d 549 (D.C. Cir. 2009) ........................................................................................ 51
Douthard v. Rawlinson, 433 U.S. 321 (1977) ........................................................................................................ 44
Duffy v. Barnhart, 2002 WL 1933236 (E.D. Pa. Aug. 21, 2002) ................................................................. 77
Evers v. Alliant Techsystems, Inc., 241 F.3d 948 (8th Cir. 2001) .......................................................................................... 56
Fischback v. District of Columbia Dep't of Corrections, 86 F.3d 1180 (D.C. Cir. 1996) ....................................................................... 65, 71,74, 86
Furr v. Seagate Technology, Inc., 82 F.3d 980 (10th Cir. 1996) .................................................................................... 33, 56
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 29 of 140
Gaffney v. Dep't of Info. Tech. & Telecomm., 536 F. Supp. 2d 445 (S.D.N.Y. 2008) ............................................................................. 34
Gray v. York Newspapers, Inc., 957 F.3d 1070 (3d Cir. 1992) ................................................... 55
Grimm v. Alro Steel Corp., 410 F.3d 383 (7th Cir. 2005) .......................................................................................... 33
Hall v. Giant Food, Inc., 175 F.3d 1074 (D.C. Cir. 1999) ...................................................................................... 75
Hanan v. Corso, 1999 WL 320858 (D.D.C. May 18, 1999) ...................................................................... 78
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ........................................................................................................ 77
Hinds v. Sprint/United Management Group, 523 F.3d 1187 (10th Cir. 2008) ...................................................................................... 33
Isbell v. Allstate Ins. Co., 418 F.3d 788 (7th Cir. 2005) .......................................................................................... 34
Jackson v. United States, 156 F.3d 230 (1st Cir. 1998) ............................................................................................. 3
Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009) ............................................................................ 33, 40, 45
Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996) ........................................................................................ 55-56
Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008), quoting Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) .............................................................................................................................. 65
Loeb v. Best Buy Co., 537 F.3d 867 (8th Cir. 2008) .......................................................................................... 75
Lumpkin v. Brown, 898 F. Supp. 1263 (N.D. Ill. 1995) ................................................................................. 67
Maxwell v. Cuyahoga Metropolitan Housing Auth., 2008 WL 746818 (N.D. Ohio March 18, 2008) ........................................................ 39-40
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 30 of 140
* May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997), cert. denied, 524 U.S. 927 (1998) ......................... passim
* Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008) ............................................................................................. passim
Mereish v. Walker, 359 F.3d 330 (4th Cir. 2004) .......................................................................................... 77
Miller v. ITT, 755 F.2d 20 (2d Cir. 1985) ............................................................................................. 39
Miller v. Rosenker, 578 F. Supp. 2d 107 (D.D.C. 2008) ................................................................................ 39
Murphy v. Pricewaterhouse Coopers LLP, 580 F. Supp. 2d 16 (D.D.C. 2008) .................................................................................. 44
* National Federation of Federal Employees v. Cheney, 883 F.2d 1038 (D.C. Cir. 1989) ............................................................................... passim
Parisi v. Boeing Co., 400 F.3d 583 (8th Cir. 2005) .......................................................................................... 39
Park v. Howard Univ., 71 F.3d 904 (D.C. Cir. 1995) .......................................................................................... 39
Peterson v. Archstone, 2009 WL 511145 (D.D.C. Feb. 27, 2009) ................................................................ 39, 45
Pignato v. American Trans Air, Inc, 14 F.3d 342 (7th Cir. 1994) ............................................................................................ 74
Pippin v. Burlington Northern Resources Oil & Gas Co., 440 F.3d 1186 (10th Cir. 2006) ...................................................................................... 33
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................................................................................ 90
Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000) ........................................................................................ 54
Reshard v. Peters, 579 F. Supp. 2d 57 (D.D.C. 2008) .................................................................................. 64
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 31 of 140
Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544 (6th Cir. 2004) .......................................................................................... 77
Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007) ................................... ........ 89
Schmid v. Frosh, 680 F.2d 248 (D.C. Cir. 1982) ................................................................... 33, 67
Silver v. Leavitt, 2006 WL 626928 (D.D.C. Mar. 13, 2006) ...................................................................... 67
Simms v. District of Columbia, 587 F. Supp. 2d 269 (D.D.C. 2008) ................................................................................ 54
Smith v. City of Jackson, 544 U.S. 228 (2005) ........................................................................................................ 67
Srock ex rel. Estate of Srock v. United States, 462 F. Supp. 2d 812 (E.D. Mich. 2006) ........................................................................ 3, 5
Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982) ........................................................................................ 43
Summers v. Winter, 303 Fed. Appx. 716, 719 (11th Cir. 2008) ....................................................................... 67
Sundaram v. Brookhaven Nat'l Laboratories, 424 F. Supp. 2d 545 (E.D.N.Y. 2006) ............................................................................ 40
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) ........................................................................................................ 50
Tice v. Bristol-Myers Squibb Co., 2009 WL 943838 (3d Cir. Apr. 8, 2009) ........................ 88-89
* Tice v. Bristol-Myers Squibb Co., 515 F. Supp. 2d 580 (W.D. Pa. 2007), aff'd, 2009 WL 943838 (3d Cir. Apr. 8, 2009) ....................................................................................................... 88-89
Watkins v. Sverdrup Technology, Inc, 153 F.3d 1308 (11th Cir. 1998) ........................................................................................ 3
Whitacre v. Davey, 890 F.2d 1168 (D. C. Cir. 1989) ...................................................................................... 44
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 32 of 140
STATUTES 5 U.S.C. §702 ......................................................................................................................... 88-89 5 U.S.C. §§ 2109(1) .................................................................................................................. 4, 5 5 U.S.C. § 3307(b) .................................................................................................................. 6, 43 5 U.S.C. § 8335 ............................................................................................................................. 8 5 U.S.C. § 8336 ....................................................................................................................... 7, 76 5 U.S.C. § 8412 ............................................................................................................................ 76 5 U.S.C. § 8414 .............................................................................................................................. 7 5 U.S.C. § 8422 ............................................................................................................................. 8 5 U.S.C. § 8425 .............................................................................................................................. 8 29 U.S.C. § 623(f)(1) .................................................................................................................. 67 * 29 U.S.C. § 633a ........................................................................................................................ passim 29 U.S.C. § 633a(a) ......................................................................................................... 32, 49, 67 29 U.S.C. § 2101-09 ................................................................................................................... 52 * 31 U.S.C. § 501 note ................................................................................................................. passim 49 U.S.C. § 106 ........................................................................................................................... 20 49 U.S.C. §§ 40109(f)(3) ............................................................................................................ 47 49 U.S.C. § 40113(f) ................................................................................................................... 48 49 U.S.C. § 44718 ........................................................................................................................ 47 49 U.S.C § 44727 ......................................................................................................................... 47 49 U.S.C. § 44915 .................................................................................................................. 47-48 49 U.S.C. § 46110 ....................................................................................................................... 89 Pub. L. No. 103-122 § 340, 107 Stat. 1198, 1224 (1993) ........................................................... 48
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 33 of 140
LEGISLATIVE MATERIALS H.R. Rep. No. 90-805, reprinted in 1967 U.S. Code Cong. & Ad. News 2213, 2219-20 .......... 77 S. Rep. No. 105-269 .................................................................................................................... 18 144 Cong. Rec. H9448 (daily ed. Oct. 5, 1998) .......................................................................... 18 149 Cong. Rec. S15386 (daily ed. Nov. 21, 2003) ...................................................................... 71 149 Cong. Rec. S15387 (daily ed. Nov. 21, 2003) ...................................................................... 71 149 Cong. Rec. S15389 (daily ed. Nov. 21, 2003) ...................................................................... 71 Civil Service Retirement System Amendments, Hearing on H.R. 1131, 989, and 1518 Before the Subcomm. on Compensation and Employee Benefits of the House Comm. on Post Office and Civil Service, 99th Cong. (June 27, 1985) .................................................................................... 8 Alaska Aviation, Field Hearing Before the S. Comm. on Commerce, Science & Transportation, 109th Cong. (2005) ............................................................................................................... 45-47 Department of Transportation and Related Agencies Appropriations for 1998: Hearing Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on Appropriations, 105th Cong. 48 (1997) .................................................................................................... 15, 17, 53 Department of Transportation and Related Agencies Appropriations for 2002: Hearing Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on Appropriations, 107th Cong. 471 (2001) .................................................................................................. 15-16, 78 Executive and Judicial Compensation in the Federal Government (Quadrennial Commission): Hearing Before the Subcomm. on the Federal Workforce and Agency Organization of the H. Comm. on Gov’t Reform, 109th Cong. (2006) ............................................................................. 77 EXECUTIVE MATERIALS Exec. Order 13264, 67 Fed. Reg. 39243 (June 7, 2002) ............................................................. 69 Exec. Order 13180, 65 Fed. Reg. 77493, 77493 (Dec. 11, 2000) ............................................... 69 14 C.F.R. § 91.103 ....................................................................................................................... 12 Office of Management and Budget, Circular A-76 ............................................................. passim
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 34 of 140
Flight Service Modernization Plan, 45 FED. REG. 26202 (April 1, 1980) .................................. 14
Department of Defense, Compare, http://www.comparea76.com/ (last visited April 22, 2009) 84 Federal Aviation Administration, GENERAL AVIATION PILOT’S GUIDE TO PREFLIGHT WEATHER PLANNING, WEATHER SELF-BRIEFINGS, AND WEATHER DECISION MAKING (2007) .................. 12
FAA, AERONAUTICAL INFORMATION MANUAL § 4-1-15(b)(2) (Feb. 14, 2008 web version) ..... 81
General Aviation and Part 135 Activity Surveys – CY 2007, Table 1.7, http://www.faa.gov/data_statistics /aviation_data_statistics/general_aviation/CY2007/ (last visited April 22, 2009). ..................... 11
FAA Historical Chronology, 1926 - 1996, http://www.faa.gov/about/media/b-chron.pdf (last visited April 22, 2009) ................................................................................................................. 11
Bureau of Labor Statistics, Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino ethnicity, ftp://ftp.bls.gov/pub/special.requests/lf/aat11.txt (last visited April 22, 2009). .................................................................................................. 49-50
Bureau of Labor Statistics, Employed persons in Nonagricultural Industries by Age, Sex, Race, and Hispanic or Latino Ethnicity, at ftp://ftp.bls.gov/pub/special.requests/lf/aat14.txt (last visited April 22, 2009) ............................................................................................................................. 50
Remarks of Jim Hall, Chairman, National Transportation Safety Board, Before the National Weather Service Workshop on Weather Services for Aviation Operations, http://www.ntsb.gov/speeches/former/hall/jh980409.htm (April 9, 1998) (last visited April 22, 2009) ...................................................................................................................................... 46-47
OTHER
National Civil Aviation Review Commission, Final Report, http://www.library.unt.edu/gpo/NCARC/reports/pepele.htm, Part II, § V.C. (last visited April 22, 2009) ............................................................................................................................... 16, 20, 73
David T. Norton, A Lawyer-Flight Instructor’s Prognostications on the Implementation of Free Flight: How Will the Large-Scale Introduction of GPS Into General Aviation Cockpits Affect the Liabilities That Face Pilots and the Flight Instructors Who Train Them, 62 J. AIR L. & COM. 725, 737 n.33 (1997). ............................................................................................................. 11-12
FAA Certificate Pilots 1929-2007, http://www.aopa.org/whatsnew/stats/pilots.html (last visited April 22, 2009). ........................................................................................................................... 10
U.S. General Aviation Accidents, Fatalities, and Rates – 1938 -2005, http://www.aopa.org/special/newsroom/stats/safety.html (last visited April 22, 2009) .............. 10
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 35 of 140
AOPA PILOT, Nov. 1996 ............................................................................................................. 11
Alfonso Castillo, Schumer Urges FAA To Reconsider Moving Jobs, NEWSDAY, Apr. 15, 2009, at A22 .............................................................................................................................................. 81
David Field, New FAA Computer May End Old Gripes, WASH. TIMES, Feb. 16, 1990, at C3 ... 11
Neil Irwin & David Cho, Markets in Disarray as Lending Locks Up, WASH. POST, Sept. 18, 2008, at A1. .................................................................................................................................. 57
Michael Sangiacomo, Weather Outlook Cloudy for FAA Plan: Industry Workers Object to Relocating, CLEVELAND PLAIN DEALER, Dec. 25, 2008, at A1. ................................................. 81
Jim Tharpe, Controllers Blast FAA Plan To Shift Meteorologists, ATLANTA JOURNALCONSTITUTION, Feb. 24, 2009, at B1 ........................................................................................... 81
Carl Marbach, Where’s My Real-Time Cockpit Weather?, http://www.avweb.com/news/osh2002/184007-1.html (July 2000) ........................................... 13
David Jensen, Weather in the Cockpit, AVIONICS MAGAZINE, http://www.aviationtoday.com/av/categories/military/12704.html (June 2000) ........................ 13
Randy Kenagy, AOPA Chief of Staff for Government Affairs, Letter to the FAA, http://download.aopa.org/epilot/2008/080828vor.pdf (May 23, 2008) (last visited April 22, 2009). ........................................................................................................................................... 13
New AOPA Online Flight Planning Service Offers Easy Web-Based Access to Weather, Route Planning, and AOPA’s Airport Directory, http://www.aopa.org/whatsnew/newsitems/1999/99-3-002.html (last visited April 22, 2009). . 12
President Hockfield Speaks out on the Issue of Women in Science and Engineering, http://web.mit.edu/newsoffice/2005/gender-equity.html (last visited April 22, 2009) ............... 51
Speed Your Flight Planning With AOPA’s Real-Time Flight Planner, http://www.aopa.org/whatsnew/newsitems/2005/050325rtfp.html (last visited April 22, 2009). 12
Weather in Cockpit Gets FAA OK, FLYING MAGAZINE, http://www.flyingmag.com/avionics/140/weather-in-the-cockpit-gets-faa-ok.html (2002) (last visited April 22, 2009) ................................................................................................................. 13
WSI InFlight' Cockpit Weather System Certified by FAA, http://www.aero-news.net/SpecialContent.cfm?ContentBlockID=53b8f6ed-b47f-4ae5-b813-c8df 2c00a196&cat=7 (2003) ............................................................................................................. 13
Wikipedia, http://en.wikipedia.org/wiki/Sky_King (last visited April 22, 2009) ....................... 11
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TABLE OF ABBREVIATIONS

ACA

Office of Competitive Sourcing

ADEA

Age Discrimination in Employment Act

AFSSs

Automated Flight Service Stations

AOPA

Aircraft Owners and Pilots Association

ATO

Agency Tender Official

Centers

Route Centers

CET

Cost Evaluation Team

DUATS or DUAT Service Direct User Access Terminal Service

EEOC

Equal Employment Opportunity Commission

FAA

Federal Aviation Administration

FAIR Act

Federal Activities Inventory Reform Act of 1998

FDIC

Federal Deposit Insurance Corporation

FSSs

Flight Service Stations

GPS

Global Positioning System

IG

Inspector General

Lockheed

Lockheed Martin Corporation

MEO

Most Efficient Organization

NAATS

National Association of Air Traffic Specialists

NCARC

National Civil Aviation Review Commission

NOTAMs

Notices to Airmen

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 37 of 140

ODRA OMB PWS RFOA RIF SSEB Specialists TET TER Towers TRACONs

FAA’s Office of Dispute Resolution for Acquisition Office of Management and Budget Performance Work Statement Reasonable Factor Other Than Age Reduction In Force Source Selection Evaluation Board Flight Service Specialists Technical Evaluation Team Technical Evaluation Report Airport Control Towers Radar Approach Facilities

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 38 of 140

Belger, Monte Belman, Dale Bertram, Christopher
Blakey, Marion Breen, Kathleen Brown, Steven
Brydon, Malcolm Campbell, Cathy Cantu, Ernesto Carrington, William
Challan, Peter Consalvo, Ronald Courain, Daniel
Crigler, Donna Currier, Kenneth DeGaetano, Dennis
Dodson, Donna Eastman, Franklin Elias, Denise

TABLE OF CITED INDIVIDUALS FAA Acting Administrator (July-August 2002)
Represented plaintiffs designated as a liability expert witness FAA Assistant Administrator for Financial Services, Chief Financial Officer (mid-2001 until early 2003) FAA Administrator (September 2002- September 2007) Plaintiff; President of NAATS starting in the Fall of 2004 Senior Vice President of the National Business Aviation Association; former FAA Associate Administrator for Air Traffic Plaintiff Plaintiff Plaintiff Defendants designated as both a damages expert and liability expert witness Former FAA Deputy Associate Administrator for Air Traffic Plaintiff Lockheed Martin’s Program Manager for the AFSS program during the transition of AFSS to Lockheed Martin Plaintiff Plaintiff Served as Source Selection Authority for the AFSS A-76 competition Dismissed Plaintiff; served on the MEO team Plaintiff Plaintiff
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 39 of 140

Freed, Richard Garvey, Jane Gibson, Ventris Grace, Lauren
Hennigan, John Hopkins, Stephen
Jackson-Brame, Marilyn
Jaffe, Mark Jensen, Peter Jones, Denise Kansier, Joann
King, Donald Kilpatrick, Philip Konschake, Karen Madera, Pilar Malon, Scott
McDaniel, Aaron Mineta, Norman Mitchell, Gregory Neill, Edwin

Plaintiff FAA Administrator (August 1997- August 2002) FAA Assistant Administrator for Human Resource Management FAA Manager, Flight Services Safety Evaluation Group; served on MEO team FAA Deputy Assistant Administrator for Financial Services Served as FAA Performance Work Statement Lead, Office of Competitive Sourcing Served as FAA Deputy Director, Office of Competitive Sourcing; previously, director of Flight Services Plaintiff Plaintiff Deceased plaintiff FAA Director, Office of Competitive Sourcing; Co-chair of Source Selection Evaluation Board Co-chair of Source Selection Evaluation Board Plaintiff Plaintiff FAA Manager, Flight Services Program Operations Office FAA Labor and Employee Relations Specialist; served as chief NAATS negotiator regarding Reduction-In-Force FAA Human Resources Official Secretary of Transportation (2001-2006) Plaintiff Special Master for AFSS A-76 bid protest

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 40 of 140

Nimmo, Jack Olson, Darlene Pike, Walter Reimann, Richard Reyna, Wanda
Rufo, Paul Sheldon, Michael Sheridan, Paul
Shew, Michael Sims, Steven Siskin, Bernard Sturgell, Robert
Sturm, James Torres, Milton Tryon, Joseph Turner, William Vorce, Maureen Washington, James
Williams, George Yoo, Jeannine

Served as member of FAA AFSS Feasibility Study Workgroup FAA Manager, Human Capital Management Staff President, NAATS (1998-2004) Plaintiff Former FAA Official; served as FAA Management and Program Development Manager in ATO during Lockheed transition Plaintiff Plaintiff FAA Official; served as FAA Acting Director, Safety and Operations Support, Flight Services during Lockheed transition Plaintiff Plaintiff Defendants designated as a liability expert witness FAA Deputy Administrator (2002-2007); FAA Acting Administrator (2007-2009) Lockheed Martin, Director of Human Resources Plaintiff Represented plaintiffs designated as a damages expert witness Defendants’ designated as a liability expert witness SSEB member Served as the Agency Tender Official, overseeing the MEO, and FAA Vice President of Flight Services during the A-76 process
FAA Human Resources Official
FAA Human Resources Official
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 41 of 140

INDEX OF EXHIBITS (INCLUDING DECLARATIONS AND EXCERPTS OF DEPOSITIONS) TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

TAB NO. 1 2 3 4
5
6 7 8 9
10 11
12

DESCRIPTION OF DOCUMENTARY EXHIBITS
January 1982, Ohio University Athens, Evaluation of the FAA/MITRE Weather Data Device (Ohio University Study)
Federal Aviation Administration Air Traffic Activity Statistics, FAA Aerospace Forecasts 1999-2010
Federal Aviation Administration Air Traffic Activity Statistics, FAA Aerospace Forecasts 2005-2016
1997 FAA Financial Assessment of Federal Aviation Administration by Coopers & Lybrand, LLP, (Coopers and Lybrand Study)
December 16, 1996, Office of the Inspector General Audit Report, Management Advisory Memorandum on Acquisitions for Automated Flight Services (1996 Inspector General Report)
April 30, 1998, Flight Service Architecture Core Group Report
2001 Office of the Inspector General Report (2001 IG Report)
Executive Office of the President, Office of Management and Budget, The President's Management Agenda for Fiscal Year 2002
July 2003, Office of Management and Budget, Competitive Sourcing: Conducting Public-Private Competition in a Reasoned and Responsible Manner
June 19, 2002, Memorandum from Christopher Bertram to Administrator Jane Garvey
August 21, 2002, Assistant Administrator for Financial Services Christopher Bertram Memorandum to Acting Administrator Monte Belger
May 9, 2003, Department of Transportation Determination of Classification Appeal
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 42 of 140

13

January 8, 2003, Memorandum from Christopher Bertram to

Marion Blakey

14

June 25, 2003, AFSS Competitive Source Program Briefing to

ATCA

15

April 2003, The Briefer

16

June 2003, The Briefer

17

August 2003, The Briefer

18

Opinion by Judge Edwin B. Neill of the General Administration

Board of Contract Appeals

19

Defendants’ Responses to Plaintiffs’ Third Set of Interrogatories

(Defs’ Responses To Pls’ 3d Set of Interrogatories)

20

March 31, 2008, Automated Flight Service Station Program: 90-

Day Progress Report to the House Aviation Subcommittee

21

Original Estimate of AFSS Income and Cost Summary

22

Reforecast Estimate of AFSS Income and Cost Summary

23

February 8, 2005, Notice of Intent to File a Civil Action Under the

ADEA

24

March 30, 2005, Office of Dispute Resolution for Acquisition

Intervention Decision

25

July 20, 2005, FAA Order No. ODRA-05-348

26

Policy Bulletin 30

27

December 18, 2002, Determination as to the Inherently

Governmental Nature of Air Traffic Control Services by Secretary

Norman Y. Mineta (Mineta Determination)

28

June 12, 2002, Statement of Department of Transportation on

Amendment of Executive Order on Air Traffic Organization

29

National Association of Air Traffic Specialists Proposal (NAATS

Proposal)

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 43 of 140

30 31 32 33
TAB NO. 34 35 36 37 38 39 40 41 42 43 44 45 TAB NO. 46 47 48 49

MEO Proposal, Volume VII June 18, 2004, FAA Organizational Chart FAA Notice of Intent to Conduct Competition September 30, 2007, Automated Flight Service Station Program: 90-Day Progress Report to the House Aviation Subcommittee DECLARATIONS Declaration of Marion Blakey, Docket # 23-36 Declaration of Daniel Courain, Docket # 23-5 Declaration of Dennis DeGaetano, Docket # 23-29 Declaration of John Hennigan, Docket # 23-19 Declaration of Joann Kansier, Docket # 23-4 Declaration of Aaron McDaniel Declaration of Norman Mineta Declaration of Wanda Reyna, Docket # 23-10 Declaration of Paul Sheridan, Docket # 23-6 Declaration of Maureen Vorce Declaration of James Washington, Docket # 23-35 Declaration of George Williams, Docket # 23-34 CITED EXCERPTS OF DEPOSITIONS Deposition of Dale Belman Deposition of Christopher Bertram Deposition of Marion Blakey Deposition of Kathleen Breen
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 44 of 140

50

Deposition of Steven Brown

51

Deposition of Malcolm Brydon

52

Deposition of Cathy Campbell

53

Deposition of Ernesto Cantu

54

Deposition of Peter Challan

55

Deposition of Ronald Consalvo

56

Deposition of Donna Crigler

57

Deposition of Kenneth Currier

58

Deposition of Dennis DeGaetano

59

Deposition of Donna Dodson

60

Deposition of Franklin Eastman

61

Deposition of Denise Elias

62

Deposition of Richard Freed

63

Deposition of Ventris Gibson

64

Deposition of Lauren Grace

65

First Deposition of John Hennigan (1st Hennigan Dep.)

66

Second Deposition of John Hennigan (2nd Hennigan Dep.)

67

Deposition of Stephen Hopkins

68

Deposition of Marilyn Jackson-Brame

69

Deposition of Mark Jaffe

70

Deposition of Peter Jensen

71

Deposition of Denise Jones

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 45 of 140

72

Deposition of Joann Kansier

73

Deposition of Philip Kilpatrick

74

Deposition of Karen Konschake

75

Deposition of Pilar Madera

76

Deposition of Scott Malon

77

Deposition of Gregory Mitchell

78

Deposition of Jack Nimmo

79

Deposition of Darlene Olson

80

Deposition of Walter Pike

81

Deposition of Richard Reimann

82

Deposition of Paul Rufo

83

Deposition of Michael Sheldon

84

Deposition of Michael Shew

85

Deposition of Steven Sims

86

Deposition of Robert Sturgell

87

Deposition of James Sturm

88

Deposition of Milton Torres

89

Deposition of George Williams

90

Deposition of Jeannine Yoo

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 46 of 140

TAB NO. 91 92 93 94
95
96

TABLE OF EXPERT REPORTS
EXPERT REPORTS Report of Defendants' Expert William Turner (Turner Rep’t) Report of Plaintiffs' Expert Dale Belman (Belman Rep’t) Report of Defendants' Expert William Carrington on Monopsony Report of Defendants' Expert William Carrington Supplemental Report A Report of Defendants' Expert William Carrington Supplemental Report B Report of Defendants' Expert Bernard Siskin (Siskin Rep’t)

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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 47 of 140

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 1:05CV00654-RWR

)

MARY E. PETERS, et al.,

)

)

Defendants

)

)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

As flight service specialists employed by the Federal Aviation Administration (“FAA”),

plaintiffs provided weather information to pilots. As the 21st century began, their continued

federal employment ran into a metaphorical perfect storm.

First, the amount of work required was in long-term decline. Year after year, fewer of

the pilots served by the flight service specialists were flying. Meanwhile, the internet and other

modern technologies increasingly enabled the remaining pilots to formulate and file flight plans

and receive weather briefings without needing to speak to a specialist. Second, the FAA was

saddled with facilities that would require repair or replacement (at one office, a non-

metaphorical roof fell in) and an obsolete computer system that would require major investment

just to continue providing service. Third, the FAA, like other federal agencies, had been directed

to consider whether the government should continue to perform services that could instead be

performed commercially, and providing flight service had long been done commercially as well

as by the government.

Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 48 of 140
In fiscal year 2002, the agency’s budget officers were faced with resistance to FAA plans to spend tax dollars to modernize the computer system. They realized that a “publicprivate” competition to consider whether FAA flight services outside Alaska should be delivered by government employees or through a contract could simultaneously satisfy two goals: the presidential mandate that agencies consider such competitions, and the need to modernize and reorganize the work at a substantial savings to the taxpayer.
So a competition was held. In 2005, agency contracting officials concluded that a bid by Lockheed Martin Corporation (“Lockheed”) to provide flight services clearly offered the best combination of quality and value to the taxpayer. The agency estimated that the Lockheed bid would save the government about two billion dollars compared to the status quo. The contract was awarded to Lockheed. As a result, all the flight service specialists outside Alaska were sent notices that their federal positions were being terminated in a reduction in force (“RIF”). Many of the specialists thereafter became Lockheed employees.
Plaintiffs argue that the RIF violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a. But the RIF was utterly indiscriminate: all the non-Alaska flight service specialists received the RIF notices, men and women alike, whites and blacks alike, old and young alike. Because the employees were all subject to the RIF whether they were 39 or 59, there was no discrimination on the basis of age. May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997), cert. denied, 524 U.S. 927 (1998).
Plaintiffs argue that the RIF occurred because flight service specialists were an “aging workforce.” That argument mistakes for cause and effect what are in fact both effects of underlying causes. With occupations that are shrinking because of declining demand or
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increased automation, the first resort of an employer will usually be, as here with the FAA, to slow or stop hiring, which will almost inevitably leave it with an “aging workforce” by the time it takes the more painful step of a RIF. That is not age discrimination.
STATEMENT OF THE CASE 1. Functions Of Flight Service Specialists Flight service specialists (“specialists”) serve the general aviation population and perform a variety of functions. The function most typically associated with the job is providing pre-flight weather briefings over the phone to general aviation pilots. See Srock ex rel. Estate of Srock v. United States, 462 F. Supp. 2d 812 (E.D. Mich. 2006) (quoting and analyzing two such briefings); Elias Dep. 29-31; Currier Dep. 15; Jensen Dep. 25; Mitchell Dep. 15.1 Specialists take information provided to them by the National Weather Service and other sources (such as pilot reports made to flight service over the radio, Currier Dep. 20-21) and interpret and analyze it for general aviation pilots. Rufo Dep. 39; Brydon Dep. 44; Report of Defs’ Expert William Turner (“Turner Rep’t”) at 5; Jackson v. United States, 156 F.3d 230, 234 (1st Cir. 1998) (“weather briefer to interpret, translate, and convey in summarized form relevant weather information”). In providing these briefings, specialists “do not have any power to prohibit a pilot from flying his craft,” though they may make recommendations. Davis v. United States, 849 F.2d 549, 552 (7th Cir. 1987).
1 In citing depositions, names of deponents who are plaintiffs (including dismissed plaintiff Dodson) are in italics. Names of other deponents are in plain type. The table of persons includes a brief identification of deponents’ roles in the case. The deposition excerpts are not cited by exhibit numbers in the brief, but are given exhibit numbers and listed in the index to exhibits in alphabetical order.
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In addition to providing pre-flight briefings, specialists communicate by radio with pilots in flight to provide and receive weather information and to provide other assistance to pilots, such as helping lost pilots find their bearings and an airport at which to land. E.g., Elias Dep. 33-34; Pike Dep. 37-38.
Specialists also help pilots prepare, file, amend, cancel, or close “flight plans,” which indicate when and where a flight is planned. E.g., Currier Dep. 21; Freed Dep. 68-69; Crigler Dep. 40. If a flight plan is not cancelled or closed, a specialist will follow up to determine whether the flight arrived safely and, if unable to confirm safe arrival or cancellation, will contact law enforcement or other authorities to begin search and rescue operations. Jensen Dep. 27-28; Elias Dep. 46-48, 51; Freed Dep. 69-70; Pike Dep. 31-32.
Specialists disseminate Notices to Airmen (“NOTAMs”). For example, an airport worker might call a specialist to say that a runway was closed by snow, and the specialist would then format and enter that information into the FAA’s database. Campbell Dep. 33-34 (that example); Currier Dep. 15-16 (tower-light-outage example); Elias Dep. 44-46; Freed Dep. 70; Rufo Dep. 42-43; Jackson-Brame Dep. 49-51.
Specialists also perform other functions, including recording weather information for broadcast (Freed Dep. 71-72, Elias Dep. 27, Mitchell Dep. 15-16, Pike Dep. 39, Rufo Dep. 44), relaying clearances between pilots and the air traffic controllers who separate air traffic (Rufo Dep. at 43; Turner Rep’t at 5), and exchanging information on flights with the Customs Service (Cantu Dep. 21-22, 25-26).
For purposes of allowing and requiring early retirement, the civil service law defines two types of “air traffic controllers.” 5 U.S.C. §§ 2109(1)(A), 8331(30). Air traffic controllers at en
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Case 1:05-cv-00654-RWR Document 256 Filed 04/27/09 Page 51 of 140
route centers (“centers”), radar approach facilities (“TRACONs”), and airport control towers (“towers”) (collectively “aircraft separating controllers”) are designated as air traffic controllers because they are “actively engaged” in the “separation and control of air traffic.” 5 U.S.C. § 2109(1)(A)(i).2 Flight service specialists are designated as “air traffic controllers” under a separate clause, 5 U.S.C. § 2109(1)(A)(ii), because they “provid[e] preflight, inflight, or airport advisory service to aircraft operators.” Unlike aircraft separating controllers, flight service specialists are not authorized to direct pilots with air traffic control instructions used to separate planes. E.g., Srock, 462 F. Supp. 2d at 817-18; Brydon Dep. 30; Turner Rep’t at 4-5; JacksonBrame Dep. 26-27; Sheridan Decl. (Docket # 23-6) ¶¶ 7-8; Reyna Decl. (Docket # 23-10) ¶ 6; see Mitchell Dep. 20 (flight services specialists do not have radar showing aircraft positions). The two types of air traffic controller jobs are not interchangeable; in particular, flight service specialists could not immediately move into non-developmental positions as aircraft separating controllers without extensive training and certification. Reyna Decl. ¶ 6.3
2. Job Pre-Requisites, Training, And Compensation The specialists and former specialists deposed in this case reached flight service jobs through several paths. Many came to the FAA after having had aviation-related responsibilities
2 Tower and TRACON controllers are also sometimes referred to collectively as “terminal” controllers. Reyna Decl. ¶ 4.
3 The point here is that the two kinds of air traffic controller jobs are different, not whether one or the other is more or less important. As Bobby Sturgell, Deputy Administrator at the time of the RIF and Acting Administrator at the time of his deposition, explained in response to questions from plaintiffs’ counsel: “[S]pecialists are not involved in actually controlling and separating air traffic via radio communications. It is a different function. Q. Is it less important? A. I think everything in aviation is important. It is important that people know the weather and they flight plan properly. Flight Service Specialists assist pilots in completing those tasks.” Sturgell Dep. 52.
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in the military,4 but others either had no military experience5 or non-aviation military experience.6 Some specialists had wanted to become aircraft separating controllers (“I've wanted to be a tower controller since I was little boy,” Brydon Dep. 36), but landed in flight service jobs after they “washed out” (Jaffe Dep. 18) of the training to be an aircraft separating controller (Nimmo Dep. 16; Jaffe Dep. 18; Campbell Dep. 25, 29, 35-36; Elias Dep. 14-15), were medically disqualified for a separating controller position (Reimann Dep. 42; Sims Dep. 41-42), were over the maximum age limit to apply for a separating position (Brydon Dep. 35-36),7 decided that separating aircraft was not what they wanted to do after all (Pike Dep. 20), or left training for reasons they no longer remember (Kilpatrick Dep. 24-25). For others, flight service itself appears to have been a first-choice FAA job. Jones Dep. 11-12 (“dream come true”); Eastman Dep. 27; Konschake Dep. 16; Dodson Dep. 14; Jackson-Brame Dep. 13-14.
Though more than half the plaintiffs deposed in this case have Associates or higher-level degrees in a wide variety of fields, a college degree was not required to become a flight service specialist. See Jackson-Brame Dep. 12-13 (testimony of former head of flight service: "I am a high school grad. I received all my air traffic and managerial training through the FAA and I
4 Brydon Dep. 24; Dodson Dep. 12-13; Freed Dep. 28-29; Jensen Dep. 19-20, Reimann Dep. 12-13; Sheldon Dep. 24-26; Sims Dep. 22-23.
5 Breen Dep. 15-25; Campbell Dep. 18-24; Eastman Dep. 27; Konschake Dep. 13-16; Mitchell Dep. 9-11; Rufo Dep. 14.
6 Pike Dep. 17 (served as infantryman in Vietnam); Cantu Dep. 34 (same). 7 The Secretary is authorized to fix a “maximum limit of age within which an original appointment to a position as an air traffic controller may be made,” 5 U.S.C. § 3307(b). See also 42-43 & n.38, infra.
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have some college" work done while at the FAA). Instead, in addition to later on-the-job training, the FAA provided training to new specialists before they assumed their duties.8
At the journeyman level, the flight service position was compensated at the GS-12 level (Consalvo Dep. 46-48; Dodson Dep. 63; Kansier Dep. 153; Rufo Dep. 53).9 Night, weekend, and holiday work was required; since shift differentials were paid, some specialists preferred those hours. Jones Dep. 27-31; Elias Dep. 52-57.
Retirement provisions for federally employed flight service specialists differ from those applicable to most federal employees in both allowing and requiring earlier retirement. Most federal employees may retire with either 30 years of service at age 55 to 57 (depending on year of birth and retirement system) or with 20 years of service at age 60. 5 U.S.C. §§ 8336, 8412. Flight service specialists may retire at age 50 with only 20 years of service in a specialist or other air traffic controller position or at any age with 25 years of such service. 5 U.S.C. §§ 8336, 8412. Either group may also retire at age 62 with 5 years of federal service. 5 U.S.C. §§ 8336, 8412. In addition, federal employees subject to a reduction in force may receive a discontinued service retirement at age 50 with 20 years of federal service or at any age with 25 years of service. 5 U.S.C. §§ 8336, 8414. Flight service specialists under the newer federal employee retirement system (though not under the older civil service retirement system) are required to
8 E.g., Breen Dep. 28, Campbell Dep. 32-33, Consalvo Dep. 41. Plaintiffs did not all have training at the same time, and their recollections of its length vary. Currier Dep. 13-14 (four months); Cantu Dep. 12 (two months); Dodson Dep. 14 (four months); Elias Dep. 19 (four to five months); Freed Dep. 55 (six months); Jaffe Dep. 18 (three months); Kilpatrick Dep. 26 (three to four months).
9 In 2004, flight service was converted to the “pay band” system described by this Court in Coghlan v. Peters, 555 F. Supp. 2d 187, 192-93 (D.D.C. 2008).
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make contributions to the retirement system at a higher rate than other employees under the new system. 5 U.S.C. § 8422. Flight service specialists hired after 1986 are required to retire when they reach the later of age 56 or qualification for voluntary retirement. 5 U.S.C. §§ 8335, 8425. That statutory restriction on continued FAA employment of older flight service specialists was enacted over the objection of the FAA, which had argued that it had “no evidence which suggests to us that it is either necessary or advisable in the interest of flight safety to strive for a younger work force in the flight service stations.”10
3. The Long Decline In The Demand For Flight Service Specialists’ Work Beginning long before the 2005 RIF, the demand for much of the work done by flight service specialists was declining. Reasons for this decline in demand include a decline in the number of flights by the subset of the aviation community that relies on flight service specialists and the spread of internet and other technologies that increasingly gave pilots ready access to alternatives for weather briefing, flight planning, and navigational assistance.
a. Decline In Flights In Portion Of Aviation Community Served By FAA Flight Service i. Aviation Community Served By FAA Flight Service
The FAA’s flight service offerings had never been the sole source for all pilots to obtain weather briefings and file flight plans. Commercial airlines use their own or a contractor’s employees to perform such functions. E.g., Elias Dep. 95 (flight dispatchers for cargo airline “keep[ ] flight plans and enter[ ] flight plans into the system for their aircraft going overseas
10 Civil Service Retirement System Amendments, Hearing on H.R. 1131, 989, and 1518 Before the Subcomm. on Compensation and Employee Benefits of the House Comm. on Post Office and Civil Service, 99th Cong. 120-21 (June 27, 1985) (statement of FAA Associate Administrator Charles E. Weithoner).
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from this airport area and give[ ] them weather information similar to what we did”); Sturgell
Dep. 52 (“As a pilot for a major airline, we had our own meteorologists, our own dispatchers
who performed flight planning and weather and provided other information for the flight”);
Brydon Dep. 44; Brown Dep. 52; Sheridan Decl. ¶ 12.
Not even all general aviation pilots chose to use FAA flight services for weather briefing
and flight planning, as some turned instead to the FAA’s private competitors. Plaintiffs’ counsel
discussed this point with Steven Brown, a senior vice president of the National Business
Aviation Association:
6 Q. But there is a lot of commercial traffic. I 7 mean, you talked a little while ago when you talked 8 about the National Business Aviation Association, you 9 said it involves companies that own and use aircraft 10 in their business -11 A. Correct. 12 Q. -- and that there are a lot of them, 13 including some very big ones. So these companies do 14 utilize flight services, don't they? 15 A. Typically, they do not. 16 Q. They do not? 17 A. No.
Brown Dep. 51. Instead, such companies “typically go to other companies that provide these
flight planning and weather and other services to their companies, companies like Air Routing
and Universal Weather.” Id. at 52.
15 Q. So you're saying that the only people who 16 use flight services are essentially private pilots 17 with small planes? 18 A. It's not the only group, but it's the vast 19 majority of the customers that flight service 20 provides their service to.
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Id. (Brown himself is one of those small-plane pilots and has often used FAA flight services. Id. at 56, 92-93.)
ii. The Long-Term Decline In General Aviation Flying The number of pilots in the subset of the general aviation community that typically uses flight service specialists’ weather briefings, flight planning, and in-flight assistance has long been declining. In 2005, there were 609,737 licensed pilots in the country. FAA Certificate Pilots 1929-2007, http://www.aopa.org/whatsnew/stats/pilots.html (last visited April 22, 2009). However, a quarter of a century previously that number had been more than 35% higher. Id. The decline in the number of general aviation pilots may be understated by the overall pilot license figures, since the overall figures include air transport pilot licenses (the kind needed by airline pilots), which more than doubled between 1980 and 2005, while private licenses were declining from 357,479 to only 228,619. Id.11 The number of general aviation hours flown also declined during the quarter century preceding the RIF. By 1992, hours flown were already only about two-thirds of the hours flown only twelve years previously, and they have remained at similarly low levels. U.S. General Aviation Accidents, Fatalities, and Rates – 1938 -2005, http://www.aopa.org/special/newsroom/stats/safety.html (last visited April 22, 2009). Those figures for general aviation as a whole understate the relevant decline: General aviation flying by turbojets – the kind of plane often used by companies that do not typically patronize FAA flight services’ weather briefings and flight planning – has been increasing substantially, while flight
11 As a pilot may hold a commercial or air transport license and nevertheless fly only or also as a private pilot, see id., both the overall pilot license and private pilot license statistics shed light on the number of users of flight service.
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hours of small one-engine piston airplanes have continued to decline. General Aviation and Part 135 Activity Surveys – CY 2007, Table 1.7, http://www.faa.gov/data_statistics /aviation_data_statistics/general_aviation/CY2007/ (last visited April 22, 2009).12
b. The Rise Of Automated Alternatives To Flight Services The computer and internet revolutions have enabled general aviation pilots to obtain weather briefings and make and file flight plans directly from their own computers, allowing them to bypass flight service specialists. On February 13, 1990, the FAA introduced the Direct User Access Terminal Service (DUATS or DUAT Service). See David Field, New FAA Computer May End Old Gripes, WASH. TIMES, Feb. 16, 1990, at C3; FAA Historical Chronology, 1926 - 1996, http://www.faa.gov/about/media/b-chron.pdf (last visited April 22, 2009). DUATS allowed pilots to obtain official weather briefings and to formulate, file, and close flight plans by computer rather than by talking to a flight service specialist. After the FAA allowed use of the computer for flight plan filing, flight planning, and weather briefings, software vendors began offering enhanced or simplified interfaces to accomplish these tasks. By 1996 at least one vendor was touting “[e]ase of use, intuitive interface, and precision graphics” in a program that could “get your weather briefing, display free weather graphics and file your FAA flight plan with DUATS.”13 In 1999, the Aircraft
12 Changes in popular culture seem to mirror the retreat of small-plane general aviation into a smaller niche of American life. When Americans in or now reaching retirement were growing up, the radio and television series Sky King showcased general aviation pilots in a very favorable light. See http://en.wikipedia.org/wiki/Sky_King (last visited April 22, 2009). General aviation has not thereafter had a comparable ambassador to the broader culture.
13 Advertisement, AOPA PILOT, Nov. 1996, at 109, quoted in David T. Norton, A Lawyer-Flight Instructor’s Prognostications on the Implementation of Free Flight: How Will the
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Owners and Pilots Association (AOPA), the leading organization of general aviation pilots,
“launched the AOPA Online Flight Planning Service, an easy-to-use Web-based interface that
integrates online route planning, AOPA’s Airport Directory, GTE DUATS, graphic weather charts, and flight plan filing.”14 By early 2005, 120,000 AOPA members had used AOPA flight planning software.15 Internet weather briefings not only offer convenience but also convey
information that “can be difficult to absorb . . . in a telephone briefing” since “[p]ictures are
priceless when it comes to displaying complex, dynamic information like cloud cover and precipitation.”16
The in-flight weather functions of flight service specialists also face competition from
new technologies. As early as 1982, an Ohio University study had noted that transmission of
graphical real-time weather information to pilots in flight would “aid the pilot[s] in [their]
decision-making process,” and “eliminate errors due to verbal communication of the weather
picture.” Ex. 1 at 1. By the turn of the millennium, it was becoming obvious that satellite
13(...continued) Large-Scale Introduction of GPS Into General Aviation Cockpits Affect the Liabilities That Face Pilots and the Flight Instructors Who Train Them, 62 J. AIR L. & COM. 725, 737 n.33 (1997).
14 New AOPA Online Flight Planning Service Offers Easy Web-Based Access to Weather, Route Planning, and AOPA’s Airport Directory, http://www.aopa.org/whatsnew/newsitems/1999/99-3-002.html (last visited April 22, 2009).
15 Speed Your Flight Planning With AOPA’s Real-Time Flight Planner, http://www.aopa.org/whatsnew/newsitems/2005/050325rtfp.html (last visited April 22, 2009).
16 Federal Aviation Administration, GENERAL AVIATION PILOT’S GUIDE TO PREFLIGHT WEATHER PLANNING, WEATHER SELF-BRIEFINGS, AND WEATHER DECISION MAKING 3 (2007). Even so, “a Flight Service weather briefing is still the single most comprehensive source of weather data” for general aviation flying. Id. However, the FAA’s rules permit self-briefing given the plethora of weather information now available to pilots, see 14 C.F.R. § 91.103, and many pilots do choose that option, e.g., Shew Dep. 50; Challan Dep. 75.
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transmission of real- or near-real-time cockpit weather would become increasingly available to general aviation pilots, although the choices at that time were limited.17 Over the next few years, however, the FAA approved additional systems for transmitting weather information directly to the pilot’s cockpit.18
Another recent technological development provides general aviation pilots with an alternative to asking a specialist for in-flight navigational assistance: AOPA estimates that threequarters of general aviation pilots now use the Global Positioning System (GPS) as their preferred navigation tool.19
Another task once performed by flight service specialists, going outside at an airport and observing weather conditions with their own senses, was also being displaced by automation as “now most of the airports have gone to . . . an automated observation system . . . a machine that does all of the readings and everything.” Freed Dep. 73; see Cantu Dep. 59; Elias Dep. 23, 26; Pike Dep. 30; City of Pierre v. FAA, 150 F.3d 837, 841 (8th Cir. 1997) (Pierre airport weather observations to be automated after 1997 closure of flight service station).
17 See, e.g., David Jensen, Weather in the Cockpit, AVIONICS MAGAZINE, http://www.aviationtoday.com/av/categories/military/12704.html (June 2000) (last visited April 22, 2009); Carl Marbach, Where’s My Real-Time Cockpit Weather?, http://www.avweb.com/news/osh2002/184007-1.html (July 2000) (last visited April 22, 2009).
18 Weather in Cockpit Gets FAA OK, FLYING MAGAZINE, http://www.flyingmag.com/avionics/140/weather-in-the-cockpit-gets-faa-ok.html (2002) (last visited April 22, 2009); 'WSI InFlight' Cockpit Weather System Certified by FAA, http://www.aero-news.net/SpecialContent.cfm?ContentBlockID=53b8f6ed-b47f-4ae5-b813-c8df 2c00a196&cat=7 (2003) (last visited April 22, 2009).
19 Randy Kenagy, AOPA Chief of Staff for Government Affairs, Letter to the FAA, http://download.aopa.org/epilot/2008/080828vor.pdf (May 23, 2008) (last visited April 22, 2009).
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c. Decline In Measures Of Flight Service Activity Measured flight service activity was falling at the turn of the millennium, as small-plane general aviation flying continued to decline and do-it-yourself alternatives to FAA flight service began to proliferate. FAA Air Traffic Activity Statistics (set forth in exhibits 2-3) show that during just one ten-year span, fiscal 1994 through fiscal 2003, the number of pilot briefings conducted by specialists declined by 26%, the number of flight plans filed through specialists declined by more than 12%, and the number of aircraft contacted by specialists fell nearly 40%. 4. The 1978-1997 Consolidation Of Flight Service Many years ago, when general aviation was more widespread and when people still knew and cared whether a phone call was “long distance,” the FAA had more than 300 flight service stations (“FSSs”). See Ex. 4. Coopers & Lybrand Financial Assessment of FAA (Coopers & Lybrand study), at D04846. By 1960, some of the original flight service station functions had already been displaced, City of Pierre v. FAA, 150 F.3d 837, 839 (8th Cir. 1997), and by early 1978 the FAA had created a plan for a process that ultimately consolidated FSSs outside Alaska into 58 larger “automated flight service stations” (“AFSSs”), with the FAA retaining 14 FSSs and 3 AFSSs in Alaska. See Flight Service Modernization Plan, 45 FED. REG. 26202 (April 1, 1980) (addendum to and modification of original 1978 plan); Ex. 5 at 2-3, 5 (1996 Inspector General Report describing process); Coopers & Lybrand Study at D04846; City of Pierre, supra. The “process did not proceed smoothly.” 1996 Inspector General Report at 3. And “it took far longer to complete that consolidation process . . . than anyone ever anticipated” in part “because of political interests.” Jackson-Brame Dep. 89; see, e.g., Chemung County v. Dole, 804 F.2d 216 (2d Cir. 1986) (addressing contention that congressmen had pressured FAA to locate an
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AFSS in Buffalo rather than Elmira); DeGaetano Dep. 7-8 (was deposed in Chemung County); Consalvo Dep. 45 (“political pressure from some elected representatives . . . to keep certain stations open”); City of Pierre, 150 F.3d at 840 (noting appropriations bill language addressing closure of three specific stations). The FAA was not able to complete the process until 1997. City of Pierre, 150 F.3d at 839.
5. Slowdown In New Hires And The Resultant Aging Of The Workforce The 1978-1997 consolidation process was conducted without RIFs, as employees were given the option of retiring, moving to the nearest new AFSS, or relocating to another part of the country. Nimmo Dep. 20-35; Elias Dep. 23; Dodson Dep. 32. However, the number of flight service specialists was decreasing, as retiring specialists were not always replaced by new hires. As the process was winding down in 1997, the president of the same plaintiffs’ union (the National Association of Air Traffic Specialists (“NAATS”)) later headed by plaintiff Breen told a congressional committee that flight service would not “hire another new employee from outside the Air Traffic Division of the FAA for at least three years” and that “[t]here have been virtually no new hires into Flight Service for more than 10 years.” Department of Transportation and Related Agencies Appropriations for 1998: Hearing Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on Appropriations, 105th Cong. 48 (1997) (statement of Michael F. McAnaw) (“Union 1997 Congressional testimony”). Plaintiffs’ union told Congress that, as a result, the workforce was “rapidly aging.” Id. In early 2001, the plaintiffs’ union again told Congress that the FAA was hiring very few specialists, that staffing was down through attrition, and that the remaining workforce was “rapidly aging.” Department of Transportation and Related Agencies Appropriations for 2002: Hearing Before the Subcomm. on
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Transportation and Related Agencies of the H. Comm. on Appropriations, 107th Cong. 471 (2001) (statement of Wally Pike) (“Union 2001 Congressional testimony”). To illustrate this point, union president Wally Pike said that even with “over 30 years’ experience, within Flight Service I am still a relative newcomer.” Id.
6. Calls For Further Consolidation Of Flight Services The planning for the consolidation that began in 1978 pre-dated much of the decline in general aviation and the rise in automation that would further erode demand for flight services. Even before the FAA finished that consolidation process, the Department of Transportation’s Inspector General was pointing out in 1996 that the FAA “could realize substantial resource savings through further consolidation of AFSSs . . . without compromising safety.” Ex. 5 at 4. The Inspector General specifically suggested that the FAA “should . . . also consider having the private sector provide the full range of flight services.” Id. at 8. In 1997, the National Civil Aviation Review Commission (“NCARC”) pointed out that “[c]onsolidation of Flight Service Stations and relying on expanded” use of DUATS “to provide pre-flight briefings, weather briefings, and flight plan filings could save the FAA over $1 billion over the next five years while maintaining or improving safety and existing services to the general aviation community.” NCARC Final Report, http://www.library.unt.edu/gpo/NCARC/reports/pepele.htm, Part II, § V.C. (last visited April 22, 2009) (“NCARC Report”). Also in 1997, the Coopers & Lybrand report, while not reaching an “unequivocal recommend[ation]” among privatization and other options, did note that “it is clear that an acceleration of the consolidation of flight service stations presents opportunities for nearterm cost savings.” Coopers & Lybrand Report, Ex. 4 at D004850-51. In 1998, an internal FAA
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study recommended that the AFSSs in the United States outside Alaska, Hawaii, and Puerto Rico be reduced to 23 to 27. Defs’ Ex. 6 at P00760.
The Office of Inspector General returned to the theme of further consolidation in late 2001. Pls’ PI Ex. 11, refiled as Ex. 7 hereto. The 2001 IG report noted that the FAA was saddled with “1970's technology that is increasingly difficult and costly to support,” and was planning to replace it with newer technology in all 61 AFSSs. Id. at 2. Four years earlier, the plaintiffs’ union was already calling that 1970s technology “antiquated and outdated.” Union 1997 Congressional testimony at 46. Even getting replacement parts to patch the old system was difficult (Jackson-Brame Dep. 83; Brydon Dep. 123), which meant that work stations had to be taken out of service (Brydon Dep. 123). The Inspector General’s Office noted that, instead of buying or leasing new technology in all 61 AFSSs, the FAA had “an opportunity to significantly reduce costs,” including labor costs, “by incorporating a strategy for consolidating its 61 automated flight service stations in conjunction with” deployment of new technology. 2001 IG Report, Ex. 7 at 3 (quotation), 5 (discussion of personnel savings).
Buildings occupied by flight service were also in need of expensive attention. Kansier Dep. 23-25. At one office, the roof fell in. Consalvo Dep. 68-70; Freed Dep. 21; Nimmo Dep. 122-23.
7. Government-Wide Policies To Consider Competition For Commercial Activities
The decline in the demand for FAA flight services would eventually intersect with the government-wide policy to rely on the private sector for needed commercial services to ensure that the American people receive maximum value for their tax dollars. The policy is not new. Quoting a 1979 Senate Report, the Court of Appeals explained in National Federation of
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Federal Employees v. Cheney, 883 F.2d 1038 (D.C. Cir. 1989), that the policy is based on three principles:
“1. Rely on the private sector. The Government's business is not to be in business. If private sources are available, they should be looked to first to provide the commercial or industrial services needed by the Government. “2. Retain certain governmental functions in-house. Certain functions are inherently governmental in nature being so closely related to the public interest as to demand performance by Federal employees. “3. Aim for economy. Use cost comparison. When private performance is feasible and no overriding factors require in-house performance, the taxpayer deserves and expects the most economical performance and therefore rigorous comparison of contract cost versus in-house cost should be used when appropriate to decide how the work will be done.” 883 F.2d at 1049, quoting S. REP. No. 96-144, at 4 (1979).
Congress reinforced this policy with the Federal Activities Inventory Reform Act of 1998, 31 U.S.C. § 501 note (“FAIR Act”). The Senate report explained that the FAIR Act reflects a “belie[f] that there are many opportunities for competition” and an “expect[ation]” that agencies would “prioritize functions that are most likely to have a high payback from such competition.” S. REP. No. 105-269, at 8. A House proponent of the FAIR Act explained that it is intended to give the “private sector” the opportunity to show whether “it can provide a good or service more cost effectively and efficiently” in order “to ensure that the taxpayers receive the very best service from the government at the lowest possible cost.” 144 CONG. REC. H9448 (daily ed. Oct. 5, 1998) (statement of Rep. Duncan).
The FAIR Act requires that each agency publish an annual list of “activities performed by Federal Government sources for the executive agency that, in the judgment of the head of the executive agency, are not inherently governmental functions.” FAIR Act § 2(a). The “Competition Required” subsection of the Act mandates that agency heads “review the activities on the
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list” and that, “[e]ach time that the head of the executive agency considers contracting with a private source for the performance of such an activity, the head of the executive agency shall” (except to the extent otherwise provided by law) “use a competitive process to select the source.” FAIR Act § 2(d).
President Bush’s management agenda for fiscal 2002 underscored these points, setting a goal for each agency to complete public-private or direct conversion competitions on not less than five percent of the full-time equivalent positions listed in each agency FAIR Act inventory of commercial positions and noting that the goal would increase by 10 percent in 2003. Ex. 8 at 18.20
The competition called for under the FAIR Act is often referred to as a public-private competition, or as an A-76 study or A-76 competition, because the rules for the competition are set forth in Office of Management and Budget Circular A-76.
8. The Decision To Consider Flight Service for a Public-Private Competition In fiscal 2002, the decline in the demand for flight service, the projected expense of replacing or repairing antiquated physical plant and obsolescing computer systems, and the mandate that agencies offer private entities a chance to demonstrate that they could deliver better value for the taxpayer all contributed to a decision of the FAA’s Office of Financial Services that
20 By July, 2003, after flight service had already been selected for a competitive sourcing study, OMB modified its criteria for evaluating each agency's commitment to competitive sourcing by no longer relying on these numeric benchmarks. See Ex. 9.
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the FAA would hold a public-private competition for flight service. The principal decisionmakers were Chris Bertram and John Hennigan.21
Bertram had been recruited as the agency’s Chief Financial Officer in mid-2001 by Jane Garvey, who had been appointed FAA Administrator by President Clinton in 1997.22 Bertram Dep. 13-14. Bertram left the FAA in early 2003 to work for a Senate Committee. Id. at 60.
Hennigan has worked for the federal government since 1976 and for the FAA since 1991. 1st Hennigan Dep. 11-16. He became the FAA’s Deputy Director of Aviation Policy in 1991 and its Deputy Chief Financial Officer in 1999. Id. at 16-18.
Throughout Hennigan’s “career at the FAA . . . there was a constant focus, emphasis, and interest in efficiency at the FAA.” Id. at 26. Hennigan had long been comfortable with an underlying insight of the FAIR Act that allowing the private sector to compete for commercial activities being conducted by the government can sometimes generate greater efficiency. In his doctoral dissertation, he had studied the relative efficiency of public and private water utilities and concluded that private utilities were more efficient than government-owned utilities. Id. at 20-21. He had been involved throughout the 1990s in studies to reform the FAA, including Vice President Gore’s National Performance Review and the National Civil Aviation Review Commission. Id. at 30; NCARC Report attachment 4.
21 See Ex. 10 (Bertram memorandum to Administrator Garvey); Ex. 11 (Bertram memorandum to Acting Administrator Belger); Bertram Dep. 29-30, 37-40, 71; 1st Hennigan Dep. 22-23.
22 Since FAA administrators serve five-year terms, 49 U.S.C. § 106, their tenures can overlap presidential administrations.
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Hennigan had also taken early note of the declining demand for FAA’s flight service offerings:
[At the policy office], one of the things that I was involved in was forecasting FAA activity. . . . During that period of time, the number of activities provided to the public were decreasing for Flight Service Stations . . . . So very early in my career at the FAA, I was aware that there was -- this was an interesting – interesting part of the FAA that required analysis.23 Hennigan and the Office of Financial Services were also involved in the FAA’s attempts to compile annual FAIR Act inventories. 1st Hennigan Dep. 58-61. The initial inputs for the inventories were prepared in the field and reviewed by Hennigan’s office, id. at 60-61, and the first inventories had regional or local differences in whether the same jobs were listed as commercial, id. at 72-73. However, as the FAA and Hennigan’s office got more experience with the inventories, the accuracy and consistency of the inventories improved (id. at 64, 66-67, 7576; Bertram Dep. 95), and for the 2002 inventory the FAA decided on a nationwide basis that flight service positions were commercial, 1st Hennigan Dep. 81-84.24 In fiscal 2002, while preparing its budget request for fiscal 2003, the FAA was seeking budget authority to buy modern software for its AFSSs. Bertram Dep. 21-24. The Office of Management and Budget, however, pointed to the Inspector General’s recommendation that the FAA should consolidate its offices rather than buy expensive new computer systems for all of them. Id. at 23. Bertram in turn suggested that, rather than simply consolidating the flight stations, the agency should use the A-76 process to consider how to provide flight services more
23 1st Hennigan Dep. 25-26 (transcriber’s paragraph breaks omitted). 24 Plaintiffs’ union, NAATS, later appealed this determination, and the Department of Transportation sustained the FAA’s decision. Ex. 12.
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efficiently. Id. at 28. Given the proposed “invest[ment]” of “hundreds of millions of dollars in new equipment at 61 facilities,” it was an appropriate “time to take a hard look at” flight service. 1st Hennigan Dep. 129-30.
Making use of the A-76 process had the advantages of a mere consolidation and several more as well. For one thing, though Bertram had not been with the FAA during the 1978-1997 round of consolidation, others in the agency made him aware of how difficult that process had been. Bertram Dep. 28. The agency was also under “a lot of pressure to save money.” Id. The FAA was also under pressure to use the A-76 process that Congress had underscored that agencies were indeed expected to use, and studying flight service would meet the goals of the President’s Management agenda. Id. at 29; 1st Hennigan Dep. 51, 58; Hennigan Decl. (Docket # 23-19) ¶¶ 9, 16. President Bush personally expressed to Secretary Mineta and other Cabinet officers the importance of meeting the agenda goals, which included consideration of publicprivate competitions. Declaration of Norman Mineta ¶¶ 6-7. Another advantage of using the A76 process is one that informed passage of the FAIR Act: The A-76 process is “an established way of actually analyzing a function and trying to see how you could make it more efficient.” Bertram Dep. 32.
An early step in deciding whether an A-76 process would prove worthwhile initiated by the finance office was to determine whether a competition would be feasible (e.g., whether the FAA could expect private companies even to bid on the work), which was informed by a study conducted for the FAA by the accounting firm Grant Thornton. 1st Hennigan Dep. 104; Bertram Dep. 49.
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In a June 19, 2002, Memorandum to Administrator Garvey, Bertram informed her that his office had determined that the FAA would examine flight services (except in Alaska) for an A76 competition. Ex. 10 at 1. He noted that the A-76 process was designed “to enable organizations to achieve their missions in the most efficient, effective, and affordable manner possible.” Id. Referring to the Grant Thornton study then being finalized (Bertram Dep. 67), Bertram also noted that “a contractor was performing a feasibility study to clarify the scope of the review.” Ex. 10 at 1. On August 21, 2002, Bertram informed Acting Administrator Monte Belger25 that Bertram “had accepted the results” of the Grant Thornton study “and decided to proceed with a study of the FSS function excluding the FSS function in Alaska.” Ex. 11.26
Neither Bertram nor Hennigan considered the age of the flight service specialists in reaching the decision to study the flight service function pursuant to Circular A-76. Bertram Dep. 111-12; 1st Hennigan Dep. 164-65.
9. The Public-Private Competition A decision to study a commercial activity performed by the federal government does not mean that the function will inevitably be contracted out to the private sector. Sometimes, when tested in the crucible of a competition, an agency can show, through a “most efficient organiza-
25 Garvey’s five-year term as Administrator had ended on August 2, 2002, and her successor, Marion Blakey, was not sworn in until September.
26 Obviously, that decision could have been subject to being revisited when, for example, questions of continuing funding arose. See, e.g., Ex. 13 (Jan. 8, 2003, memorandum from Bertram to Blakey regarding commitment to complete study). Equally obviously, once the decision was made and as more time passed and resources were expended, it would become more unlikely that the agency would reverse that decision. See Pike Dep. 128-29 (even Administrator Blakey felt that, as a practical matter, her options were constrained by the momentum of decisions made before her “watch”).
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tion” (“MEO”) bid put together by agency management and employees, that the function can be done as efficiently in-house as by the private sector. Nimmo Dep. 84-85. That outcome is not a failure of the bidding process since the hard-look process of redesigning agency structures into a most efficient organization may itself result in substantial efficiencies over the status quo. 1st Hennigan Dep. 129.
Bertram and Hennigan realized that their budget office was not experienced in running as major an acquisition as the A-76 study. Bertram Dep. 86; 2d Hennigan Dep. 46; 1st Hennigan Dep. 123-24. Responsibility to conduct the A-76 competition was placed in a newly created Office of Competitive Sourcing, also known as “ACA.” Kansier Dep. 32-33; Bertram Dep. 86; DeGaetano Dep. 16-17, 48-50.
In early 2003, Joann Kansier was chosen to head ACA. Kansier Decl. (Docket # 23-4) ¶ 1; Kansier Dep. 29-37; DeGaetano Dep. 50-51. Kansier began her federal career in 1974. Kansier Dep. 9-11. She became a contracting specialist in 1980, moved to the FAA in 1985, and had earned warranted contracting officer status by 1987. Id. at 10-13. Her acquisitions experience included buying equipment for flight service. Id. at 15, 18-19. Kansier had not been involved in the prior decision of Bertram’s Office of Financial Services that flight service would be the subject of an A-76 study. Id. at 30, 33-34.
Marilyn Jackson-Brame became the deputy director of ACA. Jackson-Brame Dep. 4042, 210-11. After stints in the Navy and the private sector, Jackson-Brame had begun working for the FAA in 1974 as a flight service specialist. Id. at 13-14. By 1999, she had become the manager of the FAA’s flight service division. Id. at 32-34. Unlike Kansier, she had been involved in the prior debate whether to have an A-76 study. Id. at 93-97. She had “not [been] in
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favor” of the decision to conduct an A-76 study for flight services, and had “fought very hard to find reasons not to conduct the study.” Id. at 111-12. Once the decision to have an A-76 study was made, Jackson-Brame had not wanted to be part of the Office of Competitive Sourcing that would conduct that acquisition. Id. at 210. She was, however, persuaded to become deputy director by Kansier, “a dynamic woman” who “makes a compelling case,” that flight service would, “regardless of why,” finally be “getting the attention that” Jackson-Brame thought it needed; “that the bidders, all of them, including the MEO, would be coming with their best”; and that Jackson-Brame’s flight service experience would contribute to that process. Id. at 210-11.
Plaintiffs have relied on various briefings made by Kansier and others that list “aging workforce” as part of the “business case” for conducting an A-76 study. For example, a briefing by Kansier on June 25, 2003, listed four “outside influences” (the IG recommendation, “FAA studies,” “Congressional Appropriations Language,” and the “President’s Management Agenda”) and five items under “State of AFSS” (“Aging facilities and equipment,” “aging workforce,” “imbalanced workload,” “inadequate funding for AFSS related programs,” and “potential for efficiencies”) coming together to create an “opportunity.” Ex. 14 at P01179.
The “main premise” of the A-76 process was to have a “level playing field and a fair acquisition.” Kansier Dep. 32. “One of the first steps in putting together a public-private competition (or any large-scale acquisition) is the development of” a “Performance Work Statement” (“PWS”), which sets forth for all potential bidders on a uniform basis the requirements to which they will propose solutions. Kansier Decl. ¶ 5. In March, 2003, ACA formed a “PWS team,” including both management and union members, to evaluate what flight service did, and what bidders would be asked to do in any contract. Ex. 15; Jackson-Brame Dep. 103-05;
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Hopkins Dep. 80-85. ACA also formed a multidisciplinary “Studies team” to look at technological and asset issues. Ex. 16. In early June 2003, the ACA’s “Acquisition team,” published a Request for Information to solicit input about the acquisition from all interested parties. Id. By August, ACA had received 18 responses and had followed-up with one-on-one meetings with those respondents. Ex. 17 at P01283. After the PWS team had done its work, which included site visits across the country, Ex. 16, the FAA posted the PWS on the internet on December 19, 2003, Kansier Decl. ¶ 7. A formal Request for Offers was released in May 2004, id. ¶ 9, and both the MEO and outside vendors presented their technical proposals in August 2004 and their cost proposals in September, id. ¶ 11.
ACA put together a technical evaluation team and a cost evaluation team to evaluate the proposals. The technical evaluation team was later described as follows by Judge Edwin B. Neill of the General Services Administration Board of Contract Appeals, sitting as a special master in an FAA administrative appeal:
Sixty individuals are identified in this listing [of members of the technical evaluation team]. Slightly over half of these individuals are listed as advisors – as opposed to being evaluators. The experience and background of each individual is briefly summarized . . . . “[T]he years of professional experience and the key knowledge, skills, and abilities of these [technical team] members are highly impressive. Neill Opinion, Public Version (Docket # 23-3027) (“Neill Opinion”), Ex. 18, at 20; see also Defs’ Responses To Pls’ 3d Set of Interrogatories, Ex. 19, at 18-19 (listing 26 “core” members of technical team). The “core” of the cost evaluation team included at least thirteen members. Id.
27 When filed with our 2005 motion, the Neill Opinion was divided into three exhibits for electronic filing, Docket ##s 23-30 (pages 1-32), 23-31 (pages 33-65), and 23-32 (pages 66-102).
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After detailed evaluation of the proposals, the technical team rated the Lockheed proposal “excellent” on each of four factors (each of which was itself an amalgam of identified strengths and weaknesses) while the MEO proposal was rated “good” on one factor and satisfactory on the other three. Neill Opinion at 54-55. The cost team concluded that Lockheed’s bid was about 5% less costly than the MEO’s proposal, id. at 52.
The technical and cost team reports were provided to a Source Selection Evaluation Board (SSEB), which would issue a recommendation to the ultimate selection official. The SSEB was co-chaired by Kansier and contracting officer Donald King, and also included both technical and cost experts. Kansier Decl. (Docket # 23-4) ¶ 16. As Judge Neill later found, the SSEB’s “review was obviously more than a ‘rubber stamp’ exercise,” as the SSEB rejected “one influential weakness and one lesser weakness” thought by the technical team to have beset the MEO’s proposal, and likewise rejected one of the cost risks “said to be present in the MEO proposal.” Neill Opinion at 99. Even so, the SSEB’s overall analysis concluded that Lockheed had the “‘best technical solution’” and “‘clearly provided the greatest benefit to the Government.’” Id. at 100, quoting SSEB Report. The age of the employees was not a factor in the SSEB’s recommendations. Kansier Decl. ¶ 26; Declaration of Maureen A. Vorce ¶ 4.
The SSEB’s recommendation was presented to the “source selection official” for the acquisition, Dennis DeGaetano, the FAA’s Air Traffic Organization’s Vice President of Acquisition and Business Services. DeGaetano had begun his career with the FAA as an engineer in 1972, and his work had included acquisitions of weather and communications equipment related to flight service. DeGaetano Dep. 11-17. DeGaetano reviewed the SSEB’s report, the technical team’s report, and the cost team’s report. DeGaetano Decl. (Docket # 23-29) ¶ 5.
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On January 31, 2005, concurring with the recommendation of the SSEB, he decided that what he knew as “PSP2, which turned out to be Lockheed Martin,” had the best bid. Id. ¶ 7. He made his decision on a “‘best value basis,’” considering “‘the combination of the impact of the overall benefits, risk, and cost for delivery of services to support safe and efficient flight.’” DeGaetano Decl. ¶ 7, quoting Screening Information Request. He concluded that “[e]ven though the PSP2 proposal cost more than the PSP1 [another private company] proposal, the technical superiority of the PSP 2 proposal [was] worth the price difference.” DeGaetano Decl. ¶ 7.
DeGaetano did not consider the age of the workforce in making his decision. DeGaetano Dep. 98; DeGaetano Decl. ¶ 8.
10. Estimated Savings to Taxpayers Compared to the status quo ante, the FAA has estimated that the contract will save taxpayers about $2.1 billion.28 March 31, 2008, Automated Flight Service Station Program: 90Day Progress Report to the House Aviation Subcommittee (Madera Dep. Ex. 2), Ex.20, at 3-4; DeGaetano Dep. 85-87; Blakey Dep. 156-59; Sturgell Dep. 23-25; Kansier Dep. 170; Original Estimate of AFSS A-76 Income and Cost Summary, Ex. 21, Reforecast Estimate of AFSS A-76 Income and Cost Summary, Ex. 22 .29 This includes about $1.6 billion in savings over the tenyear (including option years) life of the contract plus about $500 million in “cost avoidances”
28 The FAA had originally estimated this figure as $2.2 billion. The slightly lower current savings estimate results from both settlement of post-contract disputes with Lockheed as well as higher wage rate determinations by the Department of Labor. March 31, 2008, Automated Flight Service Station Program: 90-Day Progress Report to the House Aviation Subcommittee (Madera Dep. Ex. 2), Ex.20, at 3.
29 The AFSS A-76 Income and Cost Summary, filed in partially redacted form to protect proprietary data shown on the figures for some line items, shows the line items considered in making these overall calculations.
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(expenditures foregone in anticipation of a new contract) during the prior three years. Madera Dep. 98; Ex. 20 (Madera Dep. Ex. 2) at 3-4; Sturgell Dep. 24-25; Exs. 21-22.
11. Lockheed’s Promises To Retain Incumbent Employees for Limited Time As part of its bid, Lockheed promised to make job offers to all incumbent employees at their FAA salary level. Courain Decl. (Docket # 23-5) ¶ 25; Sturm Dep. 36-37, 53-54. For employees at the facilities that remained open, the employment guarantee was to last for three years. Courain Decl. ¶ 25; Sturm Dep. 53-54. Incumbent employees at offices slated to close were to be offered bonuses for staying through the closures and the first opportunity to relocate to the three hub facilities Lockheed would open. Courain Decl. ¶¶ 25-26; Sturm Dep. 75-76, 8992. 12. Reduction in Force and Legal Challenges to the Lockheed Contract On February 1, 2005, DeGaetano’s decision that Lockheed had won the competition for the flight services contract was announced. Amended Complaint ¶ 19. On February 8, 2005, some named plaintiffs (later joined by other named plaintiffs) provided the EEOC with a notice of intent to file a civil action under the ADEA. The notice described the action being challenged as “[t]he discriminatory decision to contract out the Flight Services component of Air Traffic Control.” Ex. 23 at ¶ 12.30 On March 11, 2005, the agency “tender official” for the MEO bid filed a contest challenging the decision to the award the contract to Lockheed with the FAA’s Office of Dispute Resolution for Acquisition (“ODRA”). Ex. 24 (“ODRA Intervention Decision”) at 1-2.
30 Because of the size of the document, we have deleted a listing of plaintiffs at P044624518, P04521-4523, P04528-4531, P04534-35.
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On March 14, 2005, the president of plaintiffs’ union, Kate Breen, intervened in the contest filed by the MEO, and, on March 16, she filed a separate contest. Id. at 1; Neill Opinion at 3. Over Lockheed’s objection, ODRA sustained Breen’s claim that she could represent the other bargaining unit employees in the ODRA proceedings. ODRA Intervention Decision. The MEO contest and the Breen contest were consolidated by ODRA. Neill Opinion at 3.
On March 31, 2005, plaintiffs filed this civil action. Judge Edwin B. Neill of the General Services Administration Board of Contract Appeals was designated as a special master in the consolidated ODRA challenges to the decision awarding the contract to Lockheed. Neill’s recommended decision in the ODRA contest applied a standard that tested whether the agency decision had a “rational basis,” whether it was “arbitrary, capricious” or “an abuse of discretion,” and whether it was supported by substantial evidence. Neill Opinion at 61. On June 28, 2005, Neill issued a 102-page single-spaced opinion addressing the many issues raised by the MEO and Breen and recommending that the contests of the award to Lockheed be denied. Neill Opinion at 102. On July 20, 2005, then-Administrator Marion Blakey adopted special master Neill’s recommendations and made the final agency decision that the contests to the Lockheed award be denied. Ex. 25. Neither the age of the employees nor the extent to which they were retirement eligible played a role in Blakey’s decision to accept Neill’s recommendations. Blakey Decl. (Docket # 23-36) ¶ 5; Blakey Dep. 228. While the procurement had been proceeding before the ACA, Blakey, knowing that she would later decide any bid contest, had been “in the bubble, which meant” that she “was not involved with the procurement.” Blakey Dep. 85.
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Breen did not appeal the final agency decision denying the bid contests. On July 22, 2005, the FAA issued notices to employees then occupying AFSS positions that they would be separated from the FAA via a RIF on October 3, 2005. Williams Decl. (Docket # 23-34) ¶ 6. On September 30, 2005, this Court denied plaintiffs’ motion for a preliminary injunction against the reduction in force, in part based on its conclusion that plaintiffs had not shown that they were likely to succeed on the merits of their age discrimination claims. On October 3, 2005, the RIF occurred. Since the RIF was effective at the end of that day, October 4, 2005, is also sometimes identified as the date of the RIF. On December 28, 2005, the Court of Appeals affirmed the denial of preliminary relief. While opposing the preliminary injunction, defendants had also moved to dismiss or, in the alternative, for summary judgment. On January 8, 2007, the Court addressed that motion. The Court noted that discovery had not yet taken place, and held that “because plaintiffs have not had an opportunity to develop the facts, no determination can be made as to whether a genuine issue of material fact exists.” January 8, 2007, Order at 15. Accordingly, the Court denied defendants’ motion for summary judgment “without prejudice to its renewal after discovery has been completed.” Id. After multiple rounds of interrogatories, thousands of pages of document production, and more than fifty depositions, non-damages discovery has been completed. Defendants renew their motion for summary judgment.
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ARGUMENT The only adverse personnel action at issue in this case, the reduction in force, involved no discrimination on the basis of age. The reduction in force applied equally to all flight service specialists outside Alaska, young and old alike. We address this point (including the “outside Alaska” qualifier) in Part I of the argument. This fully addresses any issue of discrimination in what the ADEA does apply to, “[a]ll personnel actions,” 29 U.S.C. § 633a(a). Plaintiffs, however, ask the Court to expand the reach of the ADEA to cover not only personnel actions but also the underlying structural decisions of what kind of business or endeavor to be in. We explain in Part II of the argument why the Court should not accept plaintiffs’ invitation. In Part III of the argument we assume arguendo that plaintiffs can expand the reach of the ADEA to encompass their attack on the FAA’s decisions about what lines of business to be in. We explain why those decisions were free of age discrimination. I. The Only Personnel Action At Issue In This Case,
The RIF, Was Free Of Any Age Discrimination A. The Indiscriminate RIF Of Old And Young Flight
Service Specialists Was Not Discriminatory The ADEA requires that “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). The “personnel action[ ]” that was challenged in the notice of intent to sue and in the amended complaint, the then looming and later actual reduction in force, was free of any age discrimination, or indeed, any discrimination of any kind. All the flight service specialists outside Alaska, whether black or white, male or female, young or old, were equally subject to that RIF. “In other words, the young workers were
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treated exactly like the old workers – all were let go.” Grimm v. Alro Steel Corp., 410 F.3d 383,
386 (7th Cir. 2005). May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997), cert. denied, 524 U.S. 927 (1998),31
makes it clear that under the relatively rare facts of both this case and May – an across-the-board RIF of an entire work function – not even a prima facie case of discrimination is present.32 The
employer in May decided that it would replace an entire work function, its “fleet service group,”
by outsourcing the work to an outside contractor. 129 F.3d at 169. The employer’s decision-
maker had characterized the employees as an “‘old and aging workforce,’” id. at 173, and the
employer contended that it conducted the RIF in order to cut costs, id. at 170. The Court of
Appeals explained that, in order to “‘make out a prima facie case of age discrimination,’” the
plaintiffs had to show that they were in some respect “‘disadvantaged in favor of’ a younger
person.’” Id. at 172, quoting Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C. Cir. 1982). With all
the workers in the group having been subject to the contracting out, the Court of Appeals held
31 In May, the Court of Appeals published a district court opinion “as if it were an opinion of our court.” 129 F.3d at 165. The Court of Appeals added a point that it “noted, however,” with respect to a non-ADEA issue. Id.
32 Both May and this case are unlike more frequently encountered discrimination cases involving RIFs in which some, but not all, of the employees in a particular group are subject to a RIF, such as Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008); Pippin v. Burlington Northern Resources Oil & Gas Co., 440 F.3d 1186 (10th Cir. 2006); Watkins v. Sverdrup Technology, Inc, 153 F.3d 1308 (11th Cir. 1998); Furr v. Seagate Technology, Inc., 82 F.3d 980 (10th Cir. 1996); Schmid v. Frosh, 680 F.2d 248 (D.C. Cir. 1982); and Aliotta v. Bair, 576 F. Supp. 2d 113 (D.D.C. 2008). The choices employers have in those cases, to decide which employees in the group to RIF, must be made without discrimination and thus can give rise to a prima facie case if younger employees within the group are favored when those choices are made. Similar observations about the distinction between these two kinds of cases are made by both Hinds v. Sprint/United Management Group, 523 F.3d 1187, 1196 (10th Cir. 2008), and Burger v. New York Inst. of Technology, 94 F.3d 830, 833-34 (2d Cir. 1996).
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that plaintiffs had not met that element of their prima facie case since they “failed to show that
defendants treated younger persons more favorably than plaintiffs.” 129 F.3d at 173.33
Here, as in May, defendants decided to outsource an entire work function, flight service,
to an outside contractor. As in May, given that all workers in the group were subject to the RIF,
including the young ones, plaintiffs have not sustained their burden of showing that they were
treated worse than comparable younger employees.34
33 The same reasoning was used in Campbell v. PMI Food Equip. Group, 509 F.3d 776 (6th Cir. 2007), and Gaffney v. Dep’t of Info. Tech. & Telecomm., 536 F. Supp. 2d 445 (S.D.N.Y. 2008). In Campbell, the court affirmed dismissal of an ADEA claim where defendant fired all its hourly workers, whether over or under 40, and the work was thereafter done by a contractor who allegedly used workers 18 years younger on average. 509 F.3d at 785-86. In Gaffney, the court held that “Foundation Line” employees did not establish a prima facie case of race or age discrimination where “all Foundation Line Employees were terminated, regardless of age or race,” 536 F. Supp. 2d at 461, even though the employer was still hiring in different departments, id. at 462. Similarly, in Isbell v. Allstate Ins. Co., 418 F.3d 788 (7th Cir. 2005), the court found an age discrimination claim to “have no merit” where all of more than 6,000 employees, “regardless of age,” lost their positions as employees and became eligible to work in the same positions as contractors. 418 F.3d at 795 (emphasis original).
34 The relatively rare facts of both May and this case differ from the more usual case in which an employer asserts a non-discriminatory reason for a challenged personnel decision after which inquiry into whether plaintiff has made a prima facie case becomes an unnecessary “sideshow,” and the only question is that of discrimination vel non, Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). Our point here is not that the FAA had a non-discriminatory reason for deciding that it would apply the RIF equally to all the old, all the young, all the male, all the female, all the white, and all the black specialists. Our point, and a holding of May, is that such an across-theboard decision that all the employees would be equally subject to the RIF is not discriminatory in the first place. Defendants do not need to assert a non-discriminatory reason for not discriminating. We do explain below that the FAA had legitimate non-discriminatory reasons for decisions leading to the RIF that plaintiffs seek to challenge (Part III, infra), but, as we first explain (Part II, infra), those decisions were not personnel actions within the domain of the ADEA to begin with, and they are not the personnel action discussed here that actually is at issue, the nondiscriminatory RIF.
In any event, the central point of May is still good law even if, in light of cases like (continued...)
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When an employer fires everyone in a given area, it is likely to be unfortunate for the workers involved, it will sometimes be unwise, and in some cases it may even be unfair. But such literally indiscriminate personnel actions, whatever else they might be, are not discriminatory. Defendants are therefore entitled to summary judgment.
B. Older Workers Were Not Disproportionately Harmed By The Reduction In Force
When it denied the preliminary injunction motion, this Court observed that, though plaintiffs had argued that the RIF had a “differential impact” on older workers, they had “not provided any specifics, let alone detail, with respect to the magnitude of the differential impact.” Breen v. Mineta, 2005 WL 3276163 at *7 (D.D.C. Sept. 30, 2005).
Discovery and the calculations of plaintiffs’ expert Joseph Tryon have disclosed, if not the magnitude of the impact, at least its direction. As it turns out, the “differential impact” was that younger workers subject to the RIF sustained greater losses than older workers.35 Although damages discovery in this case is not completed, the Court’s minute order of January 29, 2008, directed the parties to do a “sampling of damages discovery.” Tryon calculated damages for a sampling of plaintiffs that he and plaintiffs’ counsel chose. Although defendants disagree with
34(...continued) Brady, an across-the-board RIF should now be seen as non-discriminatory, not because it fails to present a prima facie case, but because it is non-discriminatory considered vel non: Either way, it is not discrimination. The weakness of plaintiffs’ prima facie case does not somehow disappear once a non-discriminatory reason has been asserted. See Brady, 520 F.3d at 494 n.2 (“lack of . . . evidence” to support prima facie case relevant to summary-judgment-stage consideration of discrimination vel non).
35 In citing plaintiffs’ expert reports, defendants do not concede that they will be admissible at trial or waive any objections to their admissibility. Even assuming the admissibility of all plaintiffs expert reports, defendants are entitled to summary judgment.
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the absolute amounts of damages calculated by Tryon, the relative levels of damages calculated by plaintiffs’ own expert show that, within the sample chosen by plaintiffs, the older the plaintiff, the less the damages. See Supplemental Report B of Defs’ Expert William J. Carrington.
Plaintiffs’ other expert argues that, even though both young and old workers were subject to the RIF, older workers were nevertheless disproportionately disadvantaged “in this instance” because Lockheed could “potentially” exercise more monopsony power over older workers. Report of Pls’ Expert Dale Belman (“Belman Rep’t”) at 6-7. That argument fails for at least three reasons.
First, an observation that Lockheed could “potentially” exercise monopsony power does not convict even Lockheed of age discrimination. That an employer has monopsony power does not imply that it is using that power to discriminate.
Second, even if Belman’s report did show that Lockheed is now discriminating against older workers, it would do nothing to prove that defendants discriminated. May forecloses any such argument, holding that evidence of possible age discrimination by the non-defendant contractor was “irrelevant to [the] case” against the outsourcing original employer, since that employer “had no control over the selection of the” contractor’s employees. 129 F.3d at 173.36
36 Here, the FAA contract with Lockheed affected who Lockheed hired, but that distinction cuts against plaintiffs: As part of the contract, the FAA insisted that Lockheed offer rights of first refusal to the incumbent workforce and, for at least three years, retain such employees at facilities that remained open. Courain Decl. ¶ 25; Sturm Dep. 36-37, 53-54. Beyond that, however, the FAA does not control whom Lockheed employs. See Grace Dep. 129-30. Lockheed and the FAA are instead competitors in the labor market. Sturm Dep. 110.
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Third, as defendants’ expert William Carrington pointed out (and as plaintiffs’ expert Dale Belman conceded, Belman Dep. 37-38), to the extent Lockheed has greater monopsony power over older employees, it is because older employees were damaged less by the RIF than younger employees. Report of Defs’ Expert William J. Carrington on Monopsony ¶¶ 30-31.
Moreover, if plaintiffs had been correct in their supposition that older specialists were damaged more by the RIF than younger specialists, one would have expected to find that older specialists were more likely than younger ones to have made the choice to hire counsel and sue. The data do not support any such supposition, however. Instead, of the twenty oldest nonsupervisory flight service specialists as of January 2005, only one is now a plaintiff. Declaration of Aaron McDaniel ¶ 9. And even that plaintiff was not injured, at least not monetarily. As defendants’ expert William Carrington explained, under any reasonable scenario, the oldest plaintiff, like the other oldest specialists who were already eligible for federal retirement, was better off “double dipping” by accepting both federal retirement and a paycheck from Lockheed. Supplemental Report A of Defs’ Expert William J. Carrington ¶¶ 33-40. Not surprisingly given the opportunity of the oldest employees to “double dip,” of the one hundred oldest nonsupervisory flight service specialists as of January 2005, only two are among the non-dismissed plaintiffs. McDaniel Decl. ¶ 9. And, on average, the non-dismissed plaintiffs are more than two and a half years younger than the entire group of non-supervisory flight service specialists eligible to bring an age discrimination claim. Id. ¶¶ 6-8.
As we explain above in Part I.A of the argument, all that really need be said to rebut plaintiffs’ claim of age discrimination is that the young and old workers were both subject to the RIF. But if one did accept plaintiffs’ invitation to examine whether older workers were hurt
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more by the RIF than younger ones, plaintiffs’ claim that the older employees were disproportionately harmed by the RIF is not supported by the facts. The oldest employees did not disproportionately choose to become plaintiffs and, in plaintiffs’ sample of the employees who did choose to become plaintiffs, the older the employee, the less the damages.
C. The Plaintiffs Have Not Properly Raised Any Claim With Regard To Post-RIF Hiring, And In Any Event Have Not Shown Any Discrimination With Respect To Such Hiring
In an attempt to evade the inescapable fact that there was no discrimination because all the specialists, young and old alike, were subject to the RIF, plaintiffs appear to argue that in fact not all the specialists were ultimately let go because some of them were hired by the FAA for other positions after the RIF, and those who were hired for other positions, plaintiffs contend, were disproportionately young. Belman Rep’t 5-6. But, while decisions regarding whom to hire for non-flight specialist positions are indeed personnel actions, they are not the personnel action challenged in the Notice of Claim to the EEOC. Questions of discrimination in later hiring decisions are thus not properly before the Court in this RIF case. And plaintiffs have shown no evidence of age discrimination in those decisions in any event.
1. Because Plaintiffs’ Notice Of Intent To File Civil Action Did Not Raise Any Claim Of Discrimination In Later Hiring Of Specialists For Other FAA Positions, The Court Lacks Jurisdiction Over Such Claims
Plaintiffs’ notice of intent to sue was filed in February 2005. Ex. 23. Plaintiffs gave notice that they challenged the then-recent decision of the agency to award the contract to Lockheed. However, it did not set forth or give even oblique notice of the claim that plaintiffs are trying now to introduce through their expert, a claim that specialists who were hired by the
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FAA for other positions “since the reduction of force of October 3, 2005" were younger on average than the entire pool of specialists subject to the RIF. Belman Rep’t at 5-6. Any such claims of age discrimination with respect to subsequent hiring by the FAA for other positions are not properly before the Court because there was no notice to defendants that plaintiffs had or would raise such claims of discrimination in post-September 2005 hiring in their February 2005 Notice of Intent to sue about a RIF.
A civil action in ADEA and other discrimination cases is “‘limited to the matters addressed at the administrative level.’” Peterson v. Archstone, 2009 WL 511145 at *2 (D.D.C. Feb. 27, 2009). “Among other benefits, exhaustion gives the employer ‘fair notice of the claims against it,’” and “allows an employer ‘an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary.’” Id., quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995), and Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). Even when, as in Peterson, an employee has raised a claim of discrimination, that is not a lifetime pass into the federal courts to argue any and all other claims of discrimination that might ever arise against the same employer. E.g., Peterson; Miller v. Rosenker, 578 F. Supp. 2d 107 (D.D.C. 2008).
Rather, if a claim is to be litigated in court, it must be “like or reasonably related to the allegations of the [administrative] charge and growing out of such allegations.” Park, 71 F.3d at 907. A claim that an employee was not hired for one job is not “reasonably related” to a claim that he was previously fired from a different job, even if the employer is the same; therefore separate exhaustion of that later non-selection claim is required. Parisi v. Boeing Co., 400 F.3d 583, 586 (8th Cir. 2005); Miller v. ITT, 755 F.2d 20, 25-26 (2d Cir. 1985); Maxwell v. Cuyahoga
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Metropolitan Housing Auth., 2008 WL 746818 at *9-10 (N.D. Ohio March 18, 2008); Abbate v. Cendant Mobility Services Corp., 2007 WL 2021868 at *13 (D. Conn. July 13, 2007); Sundaram v. Brookhaven Nat’l Laboratories, 424 F. Supp. 2d 545, 568 (E.D.N.Y. 2006).
Even if plaintiffs had challenged post-September 2005 hiring decisions in the notice of intent to sue, those claims are barred for the independent reason that they were not asserted in the March 2005 complaint. See Jones v. Bernanke, 557 F.3d 670, 674-75 (D.C. Cir. 2009).
Defendants’ post-RIF hiring of Scott Malon, one of the younger flight service specialists whose post-RIF hiring was cited by plaintiffs’ expert, is an example of how factually dissimilar a claim related to even one such hiring decision would be to plaintiffs’ RIF claim. At the time of the RIF, Malon was only 38 years old. Malon Dep. 6. He, along with other older and younger flight service specialists, was let go in the RIF, and, like many of his colleagues, he went to work for Lockheed. Id. at 14-15. He was later hired by the FAA as a human resources specialist. Id. at 15-16. If the FAA’s decision to hire Malon rather than some other former flight specialist were at issue, one would need to look at whether any older flight service specialists applied for that human resources specialist position; if so, at how comparable their qualifications were (the agency might argue that Malon had experience, see id. at 11-15, related to the duties of the new position, see id. at 19-22); and at whether agency decisionmaker Tom Boro, see id. at 16, had done anything to suggest age bias. What little information the record contains about Malon’s hiring was generated only because Malon was deposed for an unrelated reason (he was chief negotiator for the union on issues related to the RIF). For other post-RIF hirings, even less is known. What is clear, however, is that these many rehiring decisions involved different
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decisionmakers, different positions, different times, and different considerations than the RIF claim raised in plaintiffs’ notice to the EEOC and in the amended complaint.
Another reason why plaintiffs’ challenge in February 2005 to the RIF could not plausibly be construed as also challenging post-October 3, 2005, non-selections is that doing so would convene plaintiffs into a circular firing squad. Many of the plaintiffs are among the specialists who were hired in other positions by the FAA after the RIF. Kate Breen was hired by the agency after the RIF.37 So was Michael Sheldon. Sheldon Dep. 41. Likewise, for example, Ronald Consalvo, Denise Elias, Peter Jensen, and William Corbo. Consalvo Dep. 14-15; Elias Dep. 7778; Jensen Dep. 68-69; Sheldon Dep. 31. A challenge by plaintiffs to the selections by the FAA for post-RIF jobs would therefore be arguing that the FAA discriminated by hiring some of the plaintiffs themselves. That is neither a sensible nor permissible construction of their actual administrative claims.
Accordingly, plaintiffs’ having exhausted administrative remedies with respect to the flight service RIF does not justify their challenges to later decisions on hiring for different positions, and the Court lacks jurisdiction to consider any challenges to those decisions.
2. Plaintiffs Have Not Shown That, In Selecting Among Former Flight Service Specialists For Different Positions, Defendants Discriminated On The Basis Of Age
Even if the claims that the agency discriminated among former flight service specialists in making hiring decisions for a potpourri of post-RIF jobs were properly before the Court, plaintiffs have not made even a prima facie showing of discrimination. Using again the example of the human resources specialist job Scott Malon got, plaintiffs have not shown how the FAA
37 For plaintiffs who, like Breen, are currently employed by the FAA, their positions can be found at https://employees.faa.gov/employee_directory/ (last visited April 22, 2009).
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treated an older plaintiff applicant for the job any differently or shown that there even was an
older applicant among the plaintiffs who was equally qualified for that job.
To be sure an original appointment to one important category of FAA jobs, aircraft
separating controllers, must generally be made before an applicant reaches his or her 31st
birthday. But that age-based initial hiring criterion does plaintiffs no good for at least two
reasons. First, this criterion could have made an age-based difference among flight service
specialists only with respect to a comparison between those over 31 and those under 31, and
there were very few (only fifteen) of the latter. McDaniel Decl. ¶ 10. Among the more than
99% of the specialists who were already over 30, the initial-hire-before-age-31 requirement
obviously made a difference to those who wanted aircraft separating controller jobs, but this was
not an age-based difference: a 50-year old who had previously worked in an air traffic control
tower could be eligible to apply for another tower position, while a 41-year old or 32-year old
who had never worked in a tower would not have been eligible for an original appointment to a
tower position. For example, (then) 50-year old plaintiff Malcolm Brydon was hired by the FAA
as a controller at the Nantucket tower. Brydon Dep. 20, 74.38 Prior tower experience, not age,
38 Brydon was hired after the RIF was announced, but before October 4, 2005, so his hiring is not included in plaintiffs’ expert’s statistics on post-RIF hiring. Compare Belman Rep’t at 5 with Brydon Dep. 52, 74. As noted above, Brydon had “wanted to be a tower controller since [he] was little boy,” Brydon Dep. 36, but had been too old to apply for an FAA tower position, id. at 35-36. However, Brydon had been a tower controller in the Air Force, id. at 24, and, as a one-time accommodation to the RIF’d flight service specialists, the FAA waived the age 31 requirement for former military controllers. Ex. 26. There is a hint of the circular firing squad with respect to that waiver. Brydon thought the special waiver for military experience should have been broader (he was not allowed to use the waiver a second time to apply for another tower job). Brydon Dep. 81-82. On the other hand, two other plaintiffs thought the FAA was unfairly allowing specialists with military controller experience to “leapfrog[ ]” plaintiffs who had longer FAA experience, Torres Dep. 65; Elias Dep. 97-99. Plaintiffs as a whole have not raised either of these opposing arguments. In any event, questions of how much weight the FAA
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was the controlling factor. Second, even if the maximum-age-for-first-hire policy had made an age-based difference within the RIF group, it would not have violated the ADEA. Congress authorized the Secretary to fix a “maximum limit of age within which an original appointment to a position as an air traffic controller may be made.” 5 U.S.C. § 3307(b). That statute operates as an exception to the ADEA. Stewart v. Smith, 673 F.2d 485, 490-94 (D.C. Cir. 1982).
Plaintiffs attempt to bolster their post-RIF hiring argument with statistics, but those statistics are fatally flawed.
First, Belman is comparing apples with tomatoes, oranges, and lettuce, a RIF of flight service specialist jobs with hiring for a variety of different jobs.39 Such a comparison does nothing to establish that the RIF was discriminatory. See Doan v. Seagate Technology, Inc., 82 F.3d 974, 979 (10th Cir. 1996) (reversing jury verdict for ADEA plaintiff despite statistics showing that “a greater percentage of older workers were selected for the RIF while a greater percentage of younger people were hired afterwards” where RIF and after-hire jobs were not “comparable”); Aliotta v. Bair, 576 F. Supp. 2d 113, 128 (D.D.C. 2008) (granting employer’s summary judgment motion and rejecting comparison of older RIF workforce with younger new hires where RIF positions were not similarly situated to new hire positions).
Second, as defendants’ statistical expert, Bernard Siskin, explained, Belman compared the ages of those hired for non-specialist jobs to the ages of all the specialists subject to the RIF
38(...continued) should give to military experience in hiring decisions involve distinctions based on prior military experience, not distinctions based on age.
39 Among the different jobs for which FAA hired former flight service specialists are the human resources job Malon got, the tower job Brydon got, the air traffic security job Sheldon got, Sheldon Dep. 41, the flight data communications job Jensen got, Jensen Dep. 68-69, 83, 101, and the staff specialist job Dodson got, Dodson Dep. 164-65.
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rather than (as required40) to the ages of those who applied for the jobs in question. Report of
Defs’ Expert Bernard R. Siskin (“Siskin Rep’t”) at 2 n.4. Belman asserted that he did not look at
the age of the applicants because “if there’s a perception that certain groups are unlikely to be
rehired,” then “using the pool of applicants may simply reproduce the pattern of . . . perceived
bias.” Belman Dep. 92. Yet Belman had no evidence of such perceived bias to begin with. Id. at 93.41 In short, Belman purported to prove age bias by first assuming age bias as his excuse not to use the relevant statistics as the base for comparison. Such bootstrapping proves nothing.42
D. Plaintiffs Did Not Raise Any Claims With Respect To The FAA’s Continued Direct Performance Of Flight Service In Alaska, Which In Any Event Was Justified Under The Unique Conditions Present In Alaska
FAA flight services in Alaska were not bid as part of the contract ultimately awarded to
Lockheed and are still conducted directly by the FAA.
Plaintiffs have not raised a timely challenge to that exclusion of Alaska in either their
notice of intent to file a civil action or their complaint. The notice of intent to file civil action
did cite the FAA’s decision not to outsource its Alaska operations, but with approval. Notice of
Intent, Ex. 23, ¶ 28. Since any challenge to the FAA not including Alaska in the outsourcing
40 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Whitacre v. Davey, 890 F.2d 1168, 1172 (D. C. Cir. 1989).
41 By contrast, in Douthard v. Rawlinson, 433 U.S. 321, 330 (1977), it was appropriate to use a non-applicant baseline where the announced job criteria were met more often by men than women, and would-be female applicants could determine that they did not meet criteria.
42 See Murphy v. Pricewaterhouse Coopers LLP, 580 F. Supp. 2d 16, 29-30 (D.D.C. 2008) (in ADEA promotion case, granting employer’s summary judgment motion where plaintiff’s statistical expert made “no effort” to assure that those in baseline comparison group included only employees “eligible, qualified, and interested” in promotion, and instead “simply assum[ed]” that they were all qualified and interested) (emphasis original).
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was not raised administratively, it is too late now for plaintiffs to claim that decision was discriminatory. Peterson, supra. The Complaint likewise cited the FAA’s decision not to outsource its Alaska operations with approval. Complaint ¶ 45; Amended Complaint ¶ 46. Accordingly, any challenge to the Alaska exclusion is not properly before the Court for the independent reason that it was not raised in the complaint. Jones v. Bernanke, 557 F.3d 670, 674-75 (D.C. Cir. 2009).43
Indeed, plaintiffs not only were not challenging the decision not to contract out Alaska operations, they were supporting that decision. For example, in July 2005 – i.e., after the announcement of the RIF – plaintiffs’ union, NAATS, in addition to opposing the contracting out in the other States, specifically opposed contracting out of flight services in Alaska and warned that “Alaska aviation” should “not suffer under a one-size fits all policy.” Alaska Aviation, Field Hearing Before the S. Comm. on Commerce, Science & Transportation, 109th Cong. 49 (2005) (“2005 Alaska Aviation Hearing”) (statement of Phil Brown, Director, NAATS Alaska Region). Plaintiff Breen, president of NAATS during the RIF period, when asked whether Alaska flight services should have been outsourced, said: “absolutely not.” Breen Dep. 44-45.
If anything, the FAA’s decision not to outsource its Alaska operations, rather than discriminating against plaintiffs, helped them, since some of them, such as plaintiffs Wilkerson
43 Plaintiffs’ preliminary injunction brief was more equivocal. After praising the FAA (p. 19) for “recogniz[ing] that Alaska was not suitable for contracting out because of unusual environmental factors,” the brief later (p. 85) made passing reference to the FAA “inexplicably exempting Alaska.” The Court need not psychoanalyze the preliminary injunction brief to discern how the same decision so quickly went from “recognized” to “inexplicable,” because that brief does not matter: It is whether the complaint raises the issue that governs whether the issue (if previously raised administratively) may be asserted, see Jones, 557 F.3d at 674-75.
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and McKean, were able to obtain jobs in the FAA’s Alaska flight service operations. Wilkerson
Response to Show Cause Order (Docket #220); Cantu Dep. 78.
In any event, with respect to aviation, Alaska is unique.
First, Alaska is uniquely dependent on aviation. In a majority of Alaska communities,
there is no road, let alone a bridge, to anywhere. About 70% of Alaska’s “communities are not
connected to the outside world, or even each other.” 2005 Alaska Aviation Hearing at 41
(statement of Karen E. Casanovas).44 Thus, as plaintiffs’ union acknowledged, “aviation is often
the only lifeline for [Alaska] communities.” 2005 Alaska Aviation Hearing at 49 (emphasis
supplied).
Second, the terrain and weather are more challenging in Alaska than elsewhere:
Alaska experiences all the aviation weather hazards found in the lower 48 with a greater risk of volcanic eruptions than almost anyplace else in the world. Flight operations and weather forecasting are challenged by the state’s geography – rough terrain, vast land area, exposure to ocean – extremely variable weather, and limited weather radar and satellite coverage as compared to that enjoyed by the rest of the country. . . .
. . . . [T]he Aleutian Islands are recognized as having some of the worst flying conditions in the world. . . .
Alaska’s geography creates a myriad of flying problems. Innumerable small-scale climates exist near mountainous terrain, mountain passes and glaciers. Widely separated weather reporting stations and limited satellite imagery allow these localized conditions to go unreported. Also, mountain tops are frequently obscured by clouds, and the freezing level is rarely above 7,000 feet. These factors often cause significant problems for the VFR pilot.
44 See also 2005 Alaska Aviation Hearing at 21-22 (statement of Mike Barton, Commissioner, Alaska Dep’t of Transp. and Pub. Facilities) (“Alaska comprises more than 20 percent of the land mass of the United States, but has less road mileage than Fairfax County”); 29 (statement of Richard Harding) (“more than 200 communities . . . not on any road system”).
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Unlike in the lower 48, Alaska does not have an adequate system for flight under IFR at the low altitudes used by general aviation and the bulk of the commercial air carriers in the state. As a result, aviation in Alaska is more highly dependent on the weather facilities and products needed to make VFR flying safe in this difficult environment. Remarks of Jim Hall, (then) Chairman, National Transportation Safety Board, Before the National Weather Service Workshop on Weather Services for Aviation Operations, http://www.ntsb.gov/speeches/former/hall/jh980409.htm (April 9, 1998) (last visited April 22, 2009). Bobby Sturgell, the Acting Administrator at the time of his deposition and Deputy Administrator at the time of the RIF, saw the capriciousness and extremity of Alaska weather in the Navy. A flight of planes from his carrier ran into “zero zero” conditions that prevented them from landing until the weather changed. The Navy had to rely on Air Force assistance to save pilots and planes from disaster. Sturgell Dep. 79-80. Asked by plaintiffs’ counsel to compare flying in Alaska with his experience flying in Hawaii, Sturgell explained (id. at 83-84): [B]y and large the weather in Hawaii is visual meteorological conditions, it is nice weather. You have convective activity that flows through on what I would consider to be a fairly predictable basis. That is completely unlike the weather and geography in Alaska. Granted Hawaii has some peaks, but Alaska has a huge number of mountain ranges and a huge number of islands, and the weather is much more instrument condition type weather than Hawaii. It is winter there 10 months out of the year. As plaintiffs’ union recognized, “[n]owhere else in the nation are these potential weather dangers more prevalent than in Alaska.” 2005 Alaska Aviation Hearing at 49. Because both the importance of, and challenges for, aviation in Alaska are so different from aviation elsewhere in the country, many aviation rules, practices, or policies apply differently in, only in, or everywhere except in, Alaska. See, e.g., Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999); 49 U.S.C. §§ 40109(f)(3), 44718(d)(2), 44727,
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44915. Indeed, as a general matter, Congress has told the FAA that whenever it amends its regulations in a manner that will affect intrastate Alaska aviation it must specifically “consider the extent to which Alaska is not served by transportation modes other than aviation, and shall establish such regulatory distinctions as the Administrator considers appropriate.” 49 U.S.C. § 40113(f). When it comes to aviation, Alaska is different.
With respect to flight service in particular, the pre-automated flight service stations in Alaska had been left open even after the 1978-1997 round of consolidation had closed such stations elsewhere. See, e.g., Coopers & Lybrand Study at D04846; Pub. L. No. 103-122 § 340, 107 Stat. 1198, 1224 (1993) (“None of the funds appropriated by this Act shall be available for use for closing or otherwise reducing the services of any flight service station in the State of Alaska . . . .”). Alaska thus was at a different starting point in terms of function and structure for possible future consolidation than the rest of the country. When deciding that the A-76 competition would not cover Alaska, Bertram was in part reflecting these pre-existing differences between flight services in Alaska and in the rest of the country. Bertram Dep. 72. Moreover, because of those differences, Bertram was concerned about whether private vendors would be more reluctant to bid, or would bid at all, if they had to put together a plan to take over two different types of operations, the flight service operations outside Alaska and the differently structured operations in Alaska. Id. These were valid concerns that have nothing to do with age, and everything to do with the agency’s continued sensitivity to the special role of, and challenges facing, aviation in Alaska.
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II. Plaintiffs’ Attempts To Challenge Underlying Structural Decisions That Were Not Personnel Actions Would Result In An Unwarranted Expansion Of The Scope Of The ADEA
The ADEA requires that "[a]ll personnel actions . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). There was a personnel action at the center of this case, the RIF. Plaintiffs challenged that action. As we explained above, since the RIF applied equally to old and young alike, it was non-discriminatory. Part I.A., supra. Subsequent FAA decisions about who to hire for other positions were also personnel actions, albeit (as we also explained above) personnel actions that plaintiffs neither challenged nor showed were discriminatory. Part I.C., supra.
Since they cannot show that any personnel action was discriminatory, plaintiffs ask this Court to expand the reach of the ADEA in a novel manner. They ask, in effect, that courts begin using the ADEA, not merely to assure that employers’ personnel actions are free of discrimination, but also to begin policing employers’ antecedent decisions about who the employer even is or will be, about, in other words, what lines of business an employer decides to undertake. See, e.g,, Pls’ PI Mem. at 100-01; Pls’ Opp. to Mot. to Dismiss at 16-18. The “discrimination,” under this theory, would become, not discrimination in choosing who would get flight service jobs (for there were none), but in the employer’s decision not to have any such jobs to offer. That would be a bridge too far for the ADEA.
We acknowledge that it is not just “personnel actions” that determine who an employer employs in a way that might affect protected classes quite differently. Since many occupations are disproportionately male or female, black or white, young or old,45 what business an employer
45 Bureau of Labor Statistics data showing “Employed persons by detailed occupation, (continued...)
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is in, and what occupations it will consequently employ, may also profoundly affect the demographics of its likely and actual workforce,
But neither the ADEA nor, for that matter, Title VII, commands that an employer must engage in some lines of business rather than others. Indeed, those statutes do not even “require the employer to restructure his employment practices to maximize the number of minorities and women hired.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). A fortiori they do not require an employer to change what businesses the employer is in. An employer is therefore not guilty of discrimination in taking a “personnel action” merely because it has chosen to engage in some lines of business rather than others with a more even or offsetting demographic balance. A local government, for example, does not violate Title VII merely because it decides not to operate a public pre-school system, even if it has chosen to be an employer of firefighters, and even if, when it makes those decisions, it knows (what the Bureau of Labor statistics show) that fewer than 5% of firefighters, but more than 95% of preschool and kindergarten teachers, are women.
Lest there be any misunderstanding: It is not our point that local governments should discriminate against female firefighters. It is our point that an employer’s decision to provide fire protection despite knowing that relatively fewer females are firefighters than pre-school teachers would not violate Title VII on some theory that the employer had not chosen instead or also to engage in different or additional lines of business that would result in a more
45(...continued) sex, race, and Hispanic or Latino ethnicity” can be found at ftp://ftp.bls.gov/pub/special.requests/lf/aat11.txt (last visited April 22, 2009). Data showing age are at ftp://ftp.bls.gov/pub/special.requests/lf/aat14.txt (last visited April 22, 2009), but with less occupational detail.
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demographically balanced employment roster. MIT does not violate Title VII merely because it has not chosen to be an Institute of Technology and Social Work.46
To be sure, it might be possible that somewhere some employer decided, for example, to provide fire protection rather than pre-school instruction because the county commissioners did not want to deal with female employees rather than because fire protection was thought to be important. Holding such decisions categorically not subject to Title VII or ADEA scrutiny means that, if they were in fact biased, they will go unpunished under those employment discrimination laws.47 But such a “secret memo scenario . . . could be offered in any case where the requirement of an adverse employment action has not been satisfied.” Douglas v. Donovan, 559 F.3d 549, 555 (D.C. Cir. 2009) (emphasis original). The costs of using the employment discrimination laws to police such decisions on the off-chance that such bias might one day be found through expensive discovery and trial would be unduly high. This Court ought not accept plaintiffs’ invitation to expand Title VII and the ADEA to allow such expensive second guessing of, for example, a private entrepreneur’s decision to operate a fishing fleet rather than an automobile dealership, or a local governmental employer’s decision to operate fire stations but not pre-schools, or a federal governmental employer’s decision to operate a merchant marine academy but not a liberal arts college.
46 According to MIT president Susan Hockfield, in 2004 only 18% of MIT’s faculty were women. President Hockfield Speaks out on the Issue of Women in Science and Engineering, http://web.mit.edu/newsoffice/2005/gender-equity.html (last visited April 22, 2009). This brief expresses no views on whether MIT is or is not complying with Title VII other than a view that its being MIT is not a violation.
47 The Constitution is not limited in application to “personnel actions” and may in some instances reach bias by public actors in making decisions that are not “personnel actions.” No constitutional claims are raised in this case, however.
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To this point, we have been supposing cases with an almost tenseless abstraction in which an employer at some unstated time decides what business it “is in.” The actual case before the Court is not tenseless. For many years, the FAA was in the flight service business and then it decided that it no longer would be. Posing the question as firing, rather than hiring, does seem a tougher case, if only because being fired often exacts a heavier toll, particularly on longtime employees like most of the plaintiffs here, than not being hired. And, indeed, some statutes not involved in this case do in some circumstances extend protections to already-employed workers that do not apply to the never-hired. E.g., Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101- 2109. But the statute that is at issue here, the ADEA, covers hiring and firing alike. The threshold question whether what one is looking at is a “personnel action” or an antecedent decision of what business the employer is in (whatever the tense) is the same in both cases. Whether the hypothetical local government never decided to open pre-schools as well as fire stations or whether in tough budgetary times it closed down its pre-schools but not its fire stations, in either case those decisions would not be personnel actions.48
Cases involving termination rather than hiring may also seem to be of particular salience under the ADEA because an employer decision of what business no longer to be in is susceptible to being mistaken for age discrimination. Often, an employer’s decision to exit a line of business is based at least in part on changing circumstances. The demand for the employer’s product (flight service in this instance) may have declined. Or technological change may have overtaken
48 In the case of a closing, the resulting RIF of pre-school teachers would be a personnel action for the same reason that the RIF of the flight service specialists here was a personnel action. We address the RIF that resulted in this case in Part I, supra. In the case of a pre-school never having been opened, the fire department’s hiring decisions would be personnel actions, and we address that issue below.
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the business and profession. Such circumstances do not always arise overnight. The facts here show that the decline in the need for a federally operated flight service was longstanding rather than instantaneous. In such circumstances, an employer is likely to have an “aging workforce” by the time it ultimately exits the business. Before resorting to a RIF or leaving the business altogether, an employer in a declining industry may first reduce new hiring. With few young employees being hired and entering the workforce and the remaining workers getting older, the workforce as a whole will generally become older.49 As plaintiffs’ union told Congress, that was happening with flight service for nearly two decades before the RIF. Union 1997 Congressional testimony at 48; Breen Dep. 142 (“staffing kept going down and the FAA refused to hire anybody new”). Thus, an employer decision of what line of business no longer to be in is very likely to involve firing an aging workforce, even if the employer has no animus or bias whatsoever against older workers. In such circumstances the workforce aging that occurs first and the eventual exit from the enterprise may be mistaken for cause and effect when they are actually both effects of the same underlying, non-discriminatory causes.
In any event, whether it is a decision of an employer not to undertake a new endeavor or a decision to exit from an existing endeavor, such a decision is not a personnel action. A job applicant who is qualified as a pre-school teacher can sue a fire department for not hiring her, and she may succeed if she is also qualified to be a firefighter. But she could not prevail by instead arguing that, though she was qualified only to be a teacher, the fire department decision not also or instead to be a pre-school was a discriminatory “personnel action.” So too here, if
49 To be sure, hiring could be of older employees as well as younger ones. However, young workers entering the workforce are, virtually by definition, over-represented in the pool of workers looking for jobs like flight service that require neither a college degree nor prior specialized experience.
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defendants had made older but not younger flight service specialists subject to the RIF, plaintiffs
might have a case. As we explain in Part I, that did not happen. But plaintiffs’ novel arguments
that the agency discriminated against them because it decided no longer to be a flight service
operator are beyond the scope of the ADEA, because, instead of challenging any employer’s
“personnel actions,” those arguments challenge only an antecedent decision of what the
employer is.50
III. The Decisions That Led To The RIF Were Not Discriminatory
We explained in Part I that the personnel action challenged in this case, the RIF, affected
all flight service specialists equally and therefore was not discriminatory. Plaintiffs’ principal
response appears to be that, even if there had been equality among the older and younger flight
service specialists, there is no reason to so limit the inquiry to flight service specialists, and that
the Court ought to look at whether some different occupation or combination of occupations that
might have been younger might have been RIFfed instead: Perhaps the agency might have
RIF’d aircraft separating controllers instead of specialists? Or how about payroll clerks? Or
maybe specialists could have been given the jobs of National Weather Service meteorologists,
50 There is, of course, a sense in which the FAA still is in the flight service business, since, though it no longer performs that service directly, it pays for Lockheed to offer such a service. But what counts is that, except in Alaska, the FAA is no longer in that business as an employer. So too, a local government that does not choose to employ firefighters or prekindergarten teachers may nevertheless arrange to have such services provided to residents by entering into agreements with volunteer fire companies or with private schools willing to accept vouchers, subsidies, or targeted tax breaks. The fact that the FAA or the hypothetical local government has entered a contract for another entity to provide services means that it is not or is no longer an employer of the work force at issue, and that its relations with the contractors’ workers are not or are no longer relations of an employer to employees that are governed by the employment discrimination statutes. See, e.g., Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000); Simms v. District of Columbia, 587 F. Supp. 2d 269 (D.D.C. 2008) (former agency employee whose status changed to working at agency but for agency contractor could not bring sexual harassment claim against agency under Title VII).
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and the meteorologists could have been RIF’d? Or perhaps just RIF some percentage of every
occupation throughout all the FAA rather than any one occupation? For the reasons we
explained in Parts I and II, those arguments and suggested alternatives need not and ought not be
reached because they would all require the Court to review, not a personnel action, the RIF, but
the FAA’s anterior decision that it will no longer be directly performing flight service even
though it still will be trying to keep airplanes from flying into each other, getting its payroll
processed, and asking the National Weather Service about the weather. Nevertheless, on the
arguendo assumption that these issues are properly before the Court, we address plaintiffs’
arguments below.
A. The Court Should Not Substitute Its Judgment For An Employer’s Judgment To Have A RIF
Even in an ordinary discrimination case, the court does not function as a “super-
personnel department that re-examines an entity’s business decisions,” such as who to hire. E.g.,
Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (internal quotation marks
omitted).
There is even less warrant to second-guess an employer’s decision to conduct a RIF. As
the Third Circuit explained in a case affirming summary judgment for an ADEA defendant:
[W]hile Kelly questions the economic necessity for Drexel having reduced its employee force, it would hardly be appropriate for us to second guess that management decision. We are dealing, after all, with discrimination statutes which are not intended to “handcuff the managers and owners of businesses to the status quo.” Gray v. York Newspapers, Inc., 957 F.3d 1070, 1083 (3d Cir. 1992). Thus, there is a qualitative distinction between a court reviewing a business determination that there should be a reduction in force and a court considering an employee’s claim that an employer discriminated against him in reducing its force. The first determination is a management decision with which a court should be reluctant to interfere. The second determination requires a conventional analysis under the relevant anti-discrimination statute.
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Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996) (emphasis added). Thus, because “a company’s exercise of business judgment is not a proper subject for judicial oversight,” when “a company exercises its business judgment in deciding to reduce its work force, it need not provide evidence of financial distress to make it a ‘legitimate’ RIF.’” Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 956 (8th Cir. 2001) (internal quotations omitted).
In Furr v. Seagate Technology, Inc., 82 F.3d 980, 986 (10th Cir. 1996), “[p]laintiffs attempted to attack the RIF as pretextual by challenging its necessity . . . . present[ing] much evidence tending to show Seagate’s financial health and profitability.” Plaintiffs here have taken discovery obviously aimed at disputing defendants’ projection that the taxpayers would save about $2 billion as a result of the competition. However, as Furr explained, “[f]inancial evidence suggesting that a decision, in hindsight, may not have been prudent is not evidence of improper motive,” since “the wisdom of a RIF is not for a court or jury to decide. A RIF is a business decision, and the ADEA is not a vehicle for reviewing the propriety of business decisions.” Id. (internal quotations omitted).
Similar constraints against reviewing the wisdom or prudence of an employer’s business judgments in hindsight apply in an agency-defendant context, as Aliotta v. Bair, 576 F. Supp. 2d 113 (D.D.C. 2008), illustrates. The defendant in that case, the FDIC, contended that a partial RIF was based on its judgment in 2005 that it was facing a reduced workload resulting from “a robust banking industry’s decline in receiverships.” Id. at 127. This Court accepted the FDIC’s assertion as “show[ing]” that “even if” the office selected for a RIF “was the oldest division in the FDIC . . . the division was not targeted because of age, but because of a drastic reduction in workload.” Id. at 127-28. Notably, in accepting the FDIC’s assertion of its view that it could
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shed receivers because the banking industry was “robust,” this Court properly resisted any temptation to second guess that judgment, even though in hindsight the banking industry might have looked somewhat less robust.51
Accordingly, the Court should not allow plaintiffs to put it in the position of second guessing the RIF decision, whether the invitation be to green-eyeshade whether the agency is saving about $2 billion or only some lesser amount, or to decide how the agency could have achieved comparable savings by firing some other group of workers. As the cases make clear, that is not a court’s role. Defendants are accordingly entitled to summary judgment.
B. There Was Not A Discriminatory Decision To Have A RIF Even if the Court were to accept plaintiffs’ invitation second guess the decision to have a RIF, it would find that there was not a discriminatory decision to have a RIF. One reason that assertion is accurate is that (as we explain below) there was no discrimination in deciding upon a RIF. It is also true for a second, threshold reason, namely, that there was not a decision to have a RIF, discriminatory or otherwise. Instead, there was a series of decisions, no one of which by itself was sufficient to be “a decision to have a RIF,” that resulted in a RIF as part of a contingent chain. Bertram’s decision in 2002 that the FAA would conduct an A-76 study was not a decision to RIF all flight service specialists, because for all he knew in 2002 (or when he left the FAA in 2003), the in-house MEO bid would end up winning the competition, as MEO bids in other agencies often had, see, e.g., Ex. 9, Office of Management and Budget, Competitive
51 On the very day of the decision in Aliotta, a front-page article in the Post began: “The flow of money through critical parts of the financial system all but stopped yesterday, prompting the stock market to plunge again as banks lost faith in one another . . . .” Neil Irwin & David Cho, Markets in Disarray as Lending Locks Up, WASH. POST, Sept. 18, 2008, at A1.
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Sourcing at 2 (July 2003) (“On average, the [MEO] wins just over 50% of public-private competitions”). Bertram’s decision was part of the chain of decisions that led to the RIF, but only in conjunction with later decisions that he had no role in and could not with any certainty predict.
Those later decisions led more proximately to the RIF, but the options available to those decisionmakers were in turn partially locked in by the earlier decision that there would be an A76 study. Whether or not those evaluating Lockheed’s bid agreed with the earlier decision to have an A-76 study (Kansier seems to have agreed after the fact, but Jackson-Brame opposed the decision to have a study at the time it was made, see Jackson-Brame Dep. at 111-12), their role was only to recommend or (in DeGaetano’s case) decide which bid was the best value for the taxpayers, not to make the entirety of a RIF/no RIF decision or to revisit the decision to have an A-76 competition in the first place. After all, if an agency has asked companies to go to the trouble and expense of preparing bids, it is not fair to use their bids as mere foils to be discarded once they serve the purpose of stimulating an MEO to re-invent the way the agency does business. Principles of fair competition require that if a private vendor clearly has the best overall bid, it should actually get the contract. Thus, the decisionmakers evaluating the bids were tasked with recommending and deciding which bid was best, not deciding whether, once they realized that the MEO did not have the best bid, having an A-76 study still (or ever) seemed like a good idea. Their recommendations and decision led to a RIF, but only in conjunction with other decisions they did not make. See also Pike Dep. 128-29 (even Administrator Blakey felt that, as a practical matter, her options were constrained by decisions made before her “watch”).
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We do not make these points in order to make any decision to RIF magically disappear as some back-door way of arguing that the decisions that led to the RIF cannot be reviewed. The Court indeed ought not review the soundness of the decisions that led to the RIF, but for reasons we have already gone through the front door to argue openly. Parts I, II, and III.A, supra. We make this point instead because, if the Court were to accept plaintiffs’ invitation to probe the decisions that led to the RIF, it would be important to look at the actual decisions in the chain that led to the RIF, not some hypothetical single “decision to have a RIF” that simply never occurred.
We therefore look below at the decisions that were made and show that age discrimination played no role. However, we begin by looking at the non-existent, overall decision to have a RIF because plaintiffs’ expert, Dale Belman, makes the mistake of treating the RIF as if it did result from a single decision rather than, as was actually the case, from a chain of decisions.
C. Plaintiffs’ Statistical Evidence Does Not Support A Conclusion That The RIF Was Discriminatory 1. Plaintiffs’ Statistical Evidence Does Not Support A Conclusion That There Was Disparate Treatment
When they began this case, plaintiffs argued that the FAA “target[ed]” its flight service function for contracting out because flight service specialists were on average the oldest occupational group of employees within the FAA. Amended Complaint ¶ 40, 48. Discovery has shown that assertion to be wrong. The oldest workers in an FAA occupational group are the nearly 4,000 safety inspectors, whose average age in mid-2002 (when the decision to have an A-76 study was made) was 52.74 compared to 48.85 for the flight service specialists. Siskin Rep’t ¶
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12 & table 3. If the FAA actually had intended to “target” its oldest workforce for a RIF, the broad sides of our nation’s barns have nothing to fear from any FAA fusillades.
Unable to prove the amended complaint’s allegation that the oldest occupational group was targeted for a RIF, plaintiffs’ statistical expert writes about something else. He compared the average age of the flight service specialists on October 3, 2005, which by then had become 51.09, with the average age of all FAA employees and of other groups he chose to look at. He did not choose to look at the older safety inspectors. He then used the “Kolmogorov-Smirnov test” with better than 99.999% certainty to “reject[ ]” the “hypothesis” that on average those 2,408 flight service specialists “were no older than” the groups he did look at, for example, the aircraft separating controllers, whose average age was 44.82. Belman Rep’t at 3. That is an argument with a strawman. The experts on both sides were given the data that let them start knowing the age of every employee in each group. That means that they, and anyone else who had the same data and could do long division, already knew which group was on average older with 100% certainty, without any need to drag Kolmogorov or Smirnov into the fray. The “hypothesis” that Belman “rejects,” that a group whose average age is over 51 is “no older than” a group whose average age is under 45, is something no one is hypothesizing in the first place.52
Something like Belman’s statistics might be relevant if the FAA had chosen 2,000 or so employees one at a time from among all its employees, or from among all its specialists and
52 Belman’s alternative phraseology for a “hypothesis” his test rejected at an .001 confidence level is less trivial, but just as irrelevant. He rejected the possibility that the employees in the two groups “were drawn from the same underlying population.” Belman Rep’t at 3 (emphasis added). If this were a hiring case, and if the claim were brought by a class of persons born after 1974 who never even had the chance for an FAA flight service career because the FAA hired very few people that young for flight service jobs, and if the FAA had still been hiring older workers, and if reverse age discrimination were actionable, that hypothesis might be relevant. In this actual case, however, Belman’s observation is irrelevant.
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aircraft separating controllers. But the FAA was not choosing employees in ones and twos from throughout its workforce to be outsourced. No private sector vendor would bid on – and no one would expect any efficiency gains from asking for such bids – taking over the “function” that was merely a mash-up composite of, say, the controller who works the mid-shift on the third workstation in the Atlanta tower, plus one of the safety inspectors in China, plus one of the night maintenance workers in the Seattle center, plus one of the secretaries in the headquarters HR staff, plus a day-shift flight service specialist at the second workstation from the left in Miami, plus a test pilot, plus a scientist in Atlantic City, and so on until one gets to a couple of thousand jobs scattered throughout the FAA. Yet, as defendants’ statistical expert explained, Siskin Rep’t ¶ 5-7, that is the only kind of process that Belman’s statistics might have any bearing on.
The actual decisionmaking process chose a group function to consider for an A-76 process, rather than plucking different employees from all over the agency. The appropriate statistical analysis of those processes is very different. Siskin Rep’t ¶ 7. For example, if one randomly chose 25 players from among all major league baseball players, there is a vanishingly close to zero chance that all 25 players would be on the same team. Nevertheless, each year, all the players who get a World Series ring are on the same team. Is that defiance of the odds that shows that baseball is rigged? No, it means that the process for defining who gets a World Series ring is not a process for choosing one player at a time randomly from among every player in major league baseball until one gets to 25, but a process for choosing among pre-defined workgroups.
Here too, the A-76 process was not a process to throw a couple of thousand darts at the FAA phonebook, but a process to look at whether defined functions performed by pre-existing
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groups of employees could be more efficiently performed. It is that group-choice process that any statistician should have looked at, yet plaintiffs’ expert simply did not look at whether it was or was not statistically improbable that the group chosen would, in a random process, have been as old as the flight service specialists. Siskin Rep’t ¶ 7. Defendants’ expert did look at that issue. He found that the data showed that there were only six workgroups large enough for their selection to satisfy the requirements of the President’s Management Agenda for agencies to consider A-76 competitions. Id. ¶ 10. The odds that the flight service would be the group chosen if the choice among those six groups were random (i.e., before even considering that the FAA may have had good reason not to do an A-76 study for one or more of the other groups) would be, once one crunches the numbers, one in six. Belman Dep. 60, 62. Given that probability, its actual selection would be “within the range that statisticians and Courts consider as consistent with random selection.” Siskin Rep’t ¶ 10. Indeed, the odds that a group randomly selected from those six would be as old or older than the flight service specialists would have been one in three since the older safety inspectors were one of the six groups. Id. at 9 n.14. There is simply no statistical basis for inferring discrimination based on that data. Id. ¶ 10. Siskin even did calculations “ignoring the fact that it is much more efficient to select a single workgroup than multiple workgroups for public/private competition,” and assuming that the FAA could have selected multiple workgroups until reaching the required total, which means that the choice would not have been limited to the six largest workgroups. Id. ¶ 11. Even under that assumption, the selection of flight service as the group or one of the groups to be subject to a competition was “not statistically significantly different from what one would expect from an age-neutral process.” Id. (emphasis in original).
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Plaintiffs’ expert Belman also opined that “[o]utsourcing of human resources positions has become increasingly common in the private sector” at least with respect to “functional, as opposed to strategic, human resources positions.” Belman Rep’t at 6. “Payroll functions,” for example, “get outsourced all the time.” Belman Dep. 78. Belman compared the age of flight service specialists to the age of FAA human resource employees, without distinguishing between functional and strategic employees. Id. This analysis has all the problems of his other age comparisons and an additional one besides: Belman acknowledged that he knows very little about policies concerning outsourcing of federal government human resources jobs or what outsourcing has been done. Id. at 74-75. As it turns out, in the very same month as the outsourcing of flight service, pursuant to policy set by the Office of Personnel Management, the FAA actually did complete outsourcing classic functional human resources roles, the processing of payroll and the maintenance of a computerized human resources information system, which functions are now performed for the FAA by the Department of Interior. Gibson Dep. 41-43, 6061; Olson Dep. 21; Yoo Dep. 8.
2. Plaintiffs’ Statistical Evidence Does Not Support A Conclusion That There Was A Disparate Impact On Older Workers
Plaintiffs’ expert does not even attempt to present any statistics showing that the RIF had a “disparate impact” on workers 40 or older.53 And, even if he had, it would not be enough for plaintiffs merely to allege that some generalized policy had a disparate impact. Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2405 (2008). Instead, “plaintiff[s] [are]
53 In denying the motion to dismiss, this Court held that disparate impact claims are available in federal sector ADEA cases, Breen v. Peters, 474 F. Supp. 2d 1, 6-7 (D.D.C. 2007). Defendants, without waiving any appeal rights, do not seek to revisit that issue in this motion.
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obliged to . . . isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities." Id. (citations and internal quotations omitted) (emphasis in original). Accord Reshard v. Peters, 579 F. Supp. 2d 57, 75-76 (D.D.C. 2008); Aliotta v. Bair, 576 F. Supp. 2d 113, 127 (D.D.C. 2008). This specificity requirement is no “trivial burden” and is meant to have real “bite.” Meacham, 128 S. Ct. at 2406. Otherwise, employers may become "potentially liable for the myriad of innocent causes that lead to statistical imbalances." Id. (citations and internal quotations omitted). As we explained above, the only personnel action at issue in this case is the RIF and that resulted in no statistical imbalance: the young and old were treated the same, all were subject to the RIF. But, if this Court accepts plaintiffs' invitation to review underlying structural decisions that led to the RIF, plaintiffs must isolate what decision or policy created a statistical disparity, not merely generalize about some unitary decision to have a RIF, a decision that, as we explained in the prior section, simply never existed. Their expert presented no such evidence.
D. Defendants’ Designation Of Flight Service Specialist Positions As Commercial Was Correct Rather Than Discriminatory
We begin our analysis of the decisions that, together, led to the RIF with the FAA’s decision to classify the flight service positions as either “commercial” or “inherently governmental.” The latter designation would have exempted the positions from being outsourced.
The FAA’s decision that flight service positions were commercial was correct. Of course, in order to rebut any claim that the FAA was guilty of “disparate treatment,” in making that decision, it is not the FAA’s burden to show that its decision was “correct.” After all, “‘[w]hatever the employer’s decisionmaking process,’ a plaintiff alleging disparate treatment cannot succeed unless the employee’s age ‘actually played a role in that process and had a
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determinative influence on the outcome.’” Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361, 2366 (2008), quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (emphasis added by Kentucky Retirement). Where, as here, the employer identifies a non-age reason for its decision, i.e., that flight service positions were identified as commercial because the agency thought they met the criteria for being commercial, the question for the Court is not “the correctness or desirability of” the “reasons offered, but whether the employer honestly believes in the reasons it offers.” Fischback v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal citations and quotations omitted). To be sure, if the employer’s offered reason is an error “too obvious to be unintentional, perhaps it had an unlawful motive” for its actions. Id. But “[s]hort of finding that an employer’s stated reason was indeed a pretext, however – and here one must beware of using 20/20 hindsight,” liability cannot rest solely on a judge’s determination that the employer made a misjudgment. Id.; accord, e.g., Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 495-96 (D.C. Cir. 2008). Decisions on how positions should be classified, in particular, are not to be subjected to “‘judicial micromanagement.’” Barnette v. Chertoff, 453 F.3d 513, 519 (D.C. Cir. 2006), quoting with approval Barnette v. Ridge, 2004 WL 3257071, at *5 (D.D.C. Nov. 15, 2004) (GS-level classification).
The agency had reasonable non-age grounds for concluding that flight service positions were commercial rather than inherently governmental. Under section 5(e) of the FAIR Act, 31 U.S.C. § 501 note, inherently governmental activity includes, inter alia, “activities that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgments relating to monetary transactions and entitlements” and functions “that significantly affect the life,
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liberty, or property of private persons.” The agency reasonably concluded that flight service positions do not meet that standard and should be classified as commercial. The explanation for the decision makes no mention of age and does not turn on any age-related factors. Ex. 12.
Private companies have long sold similar flight services to general aviation customers. E.g., Brown Dep. 51-52. Moreover, work similar to flight service is performed every day by airline dispatchers. E.g., Elias Dep. 95; Sturgell Dep. 52. If airline dispatchers, and, for that matter, airline pilots and airline meteorologists who are responsible for moving hundreds of souls safely across the breadth of the country can be private sector employees, it would have been absurd to conclude that interpreting the weather for a small-plane pilot flying a few hundred miles with few or no passengers is somehow inherently governmental work that must be entrusted only to a civil servant.
Plaintiffs’ statistical expert does not argue that the agency’s classification of its positions as commercial or governmental positions had a disparate impact on older workers. Defendants’ expert, who did look at that issue, concluded that the commercial/governmental decision did not show a statistical disparity adverse to older workers. Siskin Rep’t ¶ 33.
Even if there had been a statistical disparity adverse to older workers as a result of the classification of FAA positions as commercial or governmental, it would not have violated the ADEA, because the agency action was based on a reasonable factor other than age (“RFOA”). We anticipate that plaintiffs will argue that, if the government is a defendant in an ADEA case, it, unlike private employers, must justify even neutral practices that happen to have a disproportionate impact under a “business necessity” test. “The business necessity test,” however, “should have no place in ADEA disparate-impact cases.” Meacham v. Knolls Atomic Power Laboratory,
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128 S. Ct. 2395, 2404 (2008). After all, “age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment,” so that “it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.” Smith v. City of Jackson, 544 U.S. 228, 240-41 (2005). Plaintiffs’ rejoinder may be that, however persuasive such views might be to Congress, the statutory language authorizing an RFOA defense is in the private-sector version of the ADEA, 29 U.S.C. § 623(f)(1), and is not also set forth in the publicsector ADEA provision, 29 U.S.C. § 633a. The better view, however, is that the business necessity test should indeed have no place in ADEA disparate-impact cases, and that the RFOA defense available to private employers in ADEA cases is also available to federal agency defendants. Schmid v. Frosh, 680 F.2d 248, 250 n.7 (D.C. Cir. 1982); Summers v. Winter, 303 Fed. Appx. 716, 719 (11th Cir. 2008) (not designated for publication); Aliotta v. Bair, 576 F. Supp. 2d 113, 126-28 (D.D.C. 2008); Silver v. Leavitt, 2006 WL 626928, at *14 (D.D.C. Mar. 13, 2006); but see Lumpkin v. Brown, 898 F. Supp. 1263, 1271-72 (N.D. Ill. 1995).
In any event, whether the test is RFOA or business necessity, the classification decision here is unassailable for two reasons. First, there was no statistically significant adverse impact on older workers, as we have noted above. Siskin Rep’t ¶ 33. Second, classification of positions as either commercial or inherently governmental is not just a reasonable factor other than age and not just a mere “business” necessity. It is a legal necessity. Section 2 of the FAIR Act, 31 U.S.C. § 501 note, which was enacted after the ADEA, requires agencies to make such classifications. The FAA’s compliance with what the FAIR Act mandated in no way violated the ADEA.
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E. Plaintiffs’ Assertion That The FAA Should Have Outsourced Aircraft Separating Controllers Rather Than Flight Service Specialists Does Not Establish Any Age Discrimination
Plaintiffs argued in their preliminary injunction motion and in opposing the motion to dismiss that, instead of outsourcing flight service, defendants should have considered outsourcing aircraft separating controllers by expanding a pre-existing program in which low-usage towers are staffed by contractors. Pls’ PI Mem. at 100-01; Pls’ Opp. to Mot. To Dismiss at 1617. The argument fails for several reasons.
As we explained above, supra at 4-5, the functions of flight service specialist and aircraft separating controller are different and not interchangeable. See Reyna Decl. ¶ 6; Turner Rep’t; Sturgell Dep. 52. Even if the FAA could or should have outsourced some or all of the aircraft separating controllers, any decision to do so would not have justified not also outsourcing flight service, which presented a different and discrete question. For one thing, at the time the FAA was making its decisions regarding the flight service functions, expanding the contract tower program would have saved less money than outsourcing flight services. Even if plaintiffs were right in claiming that outsourcing towers would save about $65 million per year, Pls’ Opp. to Mot. To Dismiss at 17, that is only about a third of savings the FAA hoped to achieve from the Lockheed contract. Moreover, such an expansion would not have been an alternative, nondiscriminatory or otherwise, to taking a hard look at whether efficiencies could be achieved in the flight service function. If, as the FAA thought as a result of the open public-private competition, Lockheed would be able to do a better job technically of providing flight services and save the FAA about $2 billion, it made sense for the FAA to sign the contract with Lockheed regard-
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less of what made sense with respect to air traffic control operations.54 Suppose plaintiffs were
right that the FAA could save money by contracting out more aircraft separating controller posi-
tions. If the flight service function itself needed reorganization and modernization, plaintiffs’
supposition would establish only that the FAA should have looked at both functions. If an
agency is overspending on functions A and B, ending the waste with respect to function A in no
way justifies continued wasteful spending on function B.
Second, then Secretary of Transportation Norman Y. Mineta issued a formal written
determination that the agency’s “core” mission would not have allowed it to contract out air
traffic control services at the agency’s center or larger terminal operations. Mineta Determination, Ex. 27.55 Mineta’s decision first explained that the functions performed by aircraft separating controllers are not “inherently governmental.” Id. at P01267-69.56 Mineta
then addressed the “core” mission question. Although, as Mineta noted, “[s]ome portions of the
air traffic control system ha[d] previously been determined to not have a significant impact on
the national airspace system as a whole,” the “same could not be said for the composite total of
54 Indeed, though plaintiffs’ attorneys have argued after the fact that outsourcing towers should have been an alternative to outsourcing flight service, plaintiffs’ union never made any such suggestion before the fact to the FAA and instead opposed outsourcing of towers. Breen Dep. 149-50; Pike Dep. 73, 75.
55 “Terminal” operations include operations at both TRACONs and towers. Reyna Decl. ¶ 4; compare Turner Rep’t at ¶ 1 with Turner Rep’t at ¶¶ 3-4.
56 The question of whether at least some air traffic control functions are inherently governmental is, however, a closer question than whether flight service functions are inherently governmental. On the former question, two past presidents expressed different views. President Clinton, in Executive Order 13180, 65 Fed. Reg. 77493, 77493 (Dec. 11, 2000), referred to “provision of air traffic services,” as “an inherently governmental function.” President George W. Bush amended that Executive Order by, inter alia, deleting the phrase “an inherently governmental function.” Exec. Order 13264, 67 Fed. Reg. 39243 (June 7, 2002).
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air traffic services provided by FAA’s en route and larger terminal facilities.” Id. at P01271. In Mineta’s judgment, “[a]t many air traffic control facilities, the consequences of any contractor performance are so serious that the risks attendant to contractor-provided air traffic services at these facilities are unacceptable.” Id. In reaching this judgment that precluded outsourcing at such facilities, Mineta did not rely on any stereotypical assumptions about what older workers could do. Declaration of Norman Mineta ¶ ¶ 10, 16.
Third, even if the FAA had wanted to outsource some aircraft separating controller functions, it was politically impossible to do so. Secretary Mineta recognized that, though “competitive sourcing is a goal for the Department of Transportation and is a priority for the President’s Management Agenda . . . . any large-scale privatization of air traffic control would be highly controversial in Congress.” Ex. 28. Mineta therefore acknowledged that he had “no present intention of initiating that debate” with respect to aircraft separating controllers. Id. Mineta served for twenty years in the House of Representatives, and chaired both the full Transportation committee and its Aviation subcommittee. Mineta Decl. ¶¶ 1, 3. He served as a cabinet officer for presidents of both major parties, having been both President Clinton’s Commerce Secretary and President Bush’s Transportation Secretary. Id. ¶ 1. Given that experience, Mineta’s judgment on the political feasibility of outsourcing aircraft separating controllers is far more likely to have been accurate than any second-guessing by plaintiffs that maybe it would have been politically feasible after all. And, of course, it was his, rather than plaintiffs’, political judgment to make. His judgment was certainly not so “obvious[ly]” wrong that it could raise any inference that he “perhaps it had an unlawful motive” for his decision, Fischback v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996), an especially dubious inference with
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respect to Mineta, who had experienced discrimination first-hand as a boy when he was interned
with other Japanese-Americans, Mineta Decl. ¶ 10.
Mineta’s judgment of the political obstacles to outsourcing aircraft separating controllers
was confirmed by actual congressional consideration of that very issue. In November 2003, a
cloture vote to allow Senate consideration of the Century of Aviation Reauthorization Act failed
because of opposition to outsourcing of any air traffic control tower functions. See 149 CONG.
REC. S15386 (daily ed. Nov. 21, 2003) (statement of Sen. Hollings); id. at S15389-90 (statement
of Sen. Jeffords). Only after the FAA assured the Senate that the FAA would “not proceed with
the privatization or outsourcing of any FAA air traffic separation and control functions in fiscal
year 2004,” was the Senate willing to pass that FAA reauthorization act. Id. at S15387 (statement of Sen. Hollings) (emphasis added).57
We acknowledge that defendants’ own statistical expert calculates that it was the
exclusion of the (on average) younger aircraft separating controllers from any outsourcing
initiative combined with the inclusion of flight service specialists that produced any age-based statistical disparity in this case. See Siskin Rep’t at 21-22.58 Siskin also points out, however,
57 Even after fiscal 2004, the FAA realized, based in part on this experience, that it lacked the support necessary in Congress to outsource more towers. Sturgell Dep. 66-67.
While the FAA had promised not even to initiate any new competitive sourcing processes with respect to air traffic control positions, it noted that it would proceed with the competitive sourcing process already under way with respect to flight service, 149 CONG. REC. at S15387, quoting Letter from Marion C. Blakey to John McCain. The Senate thus understood that the FAA would be “allowed to continue the on-going evaluations” under the A-76 process “of how best to revamp the” flight service program. 149 CONG. REC. at S15389 (statement of Sen. Hollings).
58 This disparity is of potential relevance only to a disparate impact claim. As Siskin explained elsewhere in his report, there is no statistical evidence of disparate treatment. Siskin
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that the disparity is of a sufficiently small magnitude that it would not be deemed of “practical significance” under the EEOC’s Uniform Guidelines on Selection Procedures. Id. at 15-16, 2122, citing 29 C.F.R. § 1607.4(D). Moreover, any decision not to outsource aircraft separating controllers was clearly based on a reasonable factor other than age and (though this is not the proper test, as we explain above) by business necessity. Mineta’s determination that outsourcing of the center or larger terminal controllers would present unacceptable risks to the FAA’s “core” mission explains why retaining sufficient air traffic capacity in-house is indeed a business necessity. And the inability of the FAA to outsource any aircraft separating controllers because of opposition in Congress is likewise bowing to necessity. An agency that decides not to proceed with an action because Congress will oppose its doing so is not discriminating on the basis of age. It is recognizing the restraints imposed on agencies by republican democracy.
F. The Determination By FAA’s Office of Financial Services That Flight Services Was A Suitable Subject For A Competitive Sourcing Study Was Not Based On Age
The decision of the FAA’s Office of Financial Services that the FAA should conduct an A-76 study of the flight service function was made for reasons other than the age of the employees or their age relative to other employees. Bertram Dep. 111-12; 1st Hennigan Dep. 164-65. There were plenty of good reasons for the decision to conduct such a study.
First, as Deputy Chief Financial Officer John Hennigan had long been noticing, 1st Hennigan Dep. 25-26, the work required from flight service was in secular decline because of the decline in general aviation and the alternatives to flight service specialists briefings opened up by the internet and other technologies. See supra at_8-14. There had been calls for
58(...continued) Rep’t ¶¶ 8-11. See supra at 59-63.
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consolidation and cost reduction from, among others, both the Inspector General and the National Civil Aviation Review Commission. NCARC Report; Defs’ Exs. 5 & 7. As far back as 1996, the Department of Transportation’s Inspector General had strongly suggested that the FAA look at having the private sector take over all or most of flight service before it invested in new technology. Ex. 5 at 8-9. The Inspector General’s 2001 Report urging consolidation was issued at the same time the Office of Financial Services was faced with OMB resistance to including money in the proposed budget for an expensive replacement for antiquated flight service computer systems for many offices that the Inspector General was saying should instead be closed. Bertram Dep. 21-24. Yet the FAA was painfully aware, having spent nearly two decades in its prior consolidation of flight service, how difficult it would be to choose which offices to close without a systematic process. Id. at 28; see supra at 14-15 (discussing prior round of consolidation).
Such a systematic process, “an established way of actually analyzing a function and trying to see how you could make it more efficient,” Bertram Dep. 32, was in fact available. After all, “[w]hen private performance is feasible and no overriding factors require in-house performance, the taxpayer deserves and expects the most economical performance and therefore rigorous comparison of contract cost versus in-house cost should be used when appropriate to decide how the work will be done.” National Federation of Federal Employees v. Cheney, 883 F.2d 1038, 1049 (D.C. Cir. 1989), quoting S. REP. No. 96-144, at 4 (1979). That very A-76 process, moreover, was one that Congress had urged, and the President was requiring, agencies to use. Bertram Dep. at 29; 1st Hennigan Dep. 51, 58; Hennigan Decl. (Docket # 23-19) ¶¶ 9, 16. Indeed, the President had made it clear to Secretary Mineta and other cabinet officers that
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they were expected to meet the competitive sourcing goals of the President’s Management Agenda, Mineta Decl. ¶¶ 6-7, and Mineta realized that the FAA was the most logical component within the Department of Transportation to contribute to meeting the goal, id. at ¶ 12. It thus made sense to Bertram to respond to these related pressures at once, by using the A-76 process Congress and the President wanted agencies to use more often to perform the kind of rigorous study of a function that clearly was due for overhaul and consolidation of some kind. As Bertram’s deputy (whose interest in the comparative efficiencies of private and public performance dated back to his doctoral dissertation, see 1st Hennigan Dep. at 20-21), put it, given the proposed “invest[ment]” of “hundreds of millions of dollars in new equipment at 61 facilities,” it was the appropriate “time to take a hard look at” flight service. Id. at 129-30.
Plaintiffs disagree with that decision and the reasoning behind it. In doing so, it would not be “‘enough for the plaintiff[s] to show that a reason given for a job action is not just, or fair, or sensible. [They] must show that the explanation given is a phony reason.” Pignato v. American Trans Air, Inc, 14 F.3d 342, 349 (7th Cir. 1994), quoted with approval, Fischbach v. Dist. of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996); accord, e.g., Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495-97 (D.C. Cir. 2008). Even if there were arguments that could have been made to reach some other decision or otherwise second guess Bertram’s reasoning and decision, his decision was certainly not the kind of “error too obvious to be unintentional,” Fischbach,86 F.3d at 1183, that might raise some inference that the plaintiffs’ age was the real reason for the decision.59 In fact, Bertram, who had only arrived at the FAA in
59 The text addresses the standard for a disparate treatment claim. It is unnecessary to address a disparate impact claim with respect to Bertram’s decision. Plaintiffs’ statistical expert does not show that Bertram’s decision produced any age-related statistical disparity, and
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mid-2001, did not even know the age of the flight service specialists. Bertram Dep. 13-14, 11112.
We acknowledge that a number of agency officials involved in the acquisition said that an “aging workforce” was a reason for the decision to conduct an A-76 decision. On that point, however, they were mistaken. The actual decisionmaker, Bertram, testified that he did not consider age, as did his deputy, Hennigan, and they both pointed to sensible reasons that fully justify the decision without any reference to age. And it is the decisionmaker’s views, not the opinions of non-decisionmakers, that count. E.g., Hall v. Giant Food, Inc., 175 F.3d 1074, 107980 (D.C. Cir. 1999); May v. Shuttle, Inc, 129 F.3d 165, 173 (D.C. Cir. 1997). Even when important officials of an employer make statements about the employer’s reasons for a decision, if those officials were not the actual decisionmakers, their statements do not override the testimony of the decisionmaker about the real basis for his or her decision. Thus, in Loeb v. Best Buy Co., 537 F.3d 867, 872-74 (8th Cir. 2008), the court disregarded factually erroneous explanations for why a personnel action was taken even though those statements were made by the employer's Vice President for Human Resources and Director for Human Resources, since neither of those officials had been involved in making the decision they inaccurately attempted to explain. Similarly here, for example, Kansier, though an important figure in the acquisition,
59(...continued) defendants’ expert showed that the decision did not produce any statistically adverse impact on older workers. Siskin Rep’t ¶¶ 23, 24, 27, 32, 33. In any event, the FAA had a business necessity and a fortiori (the only thing it would have to prove even assuming a statistical disparity) a reasonable factor other than age for using an A-76 study. See Nat’l Fed’n of Federal Employees v. Cheney, 883 F.2d 1038, 1049 (D.C. Cir. 1989) (explaining benefits of A-76 process). When the competition was in fact held, the agency found that it could save about $2 billion compared to the status quo ante. See Ex. 20 at 3-4; Exs.21-22; DeGaetano Dep. 85-87; Blakey Dep. 156-59; Sturgell Dep. 23-25; Kansier Dep. 170.
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had not been involved at all in Bertram’s prior decision that there would be an acquisition, Kansier Dep. 33-34; Jackson-Brame had been an opponent of that decision, Jackson-Brame Dep. 111-12; and Blakey (who is alleged to have also used “aging workforce”) did not even arrive at the FAA until after Bertram’s decision had been made, compare Bertram memorandum to Acting Administrator Belger, Ex. 11, with Blakey Dep. 30-31.60
Their mistaken assumption that an “aging workforce” had been considered in deciding to conduct an A-76 is, moreover, understandable, as concern about succession planning with respect to the FAA’s most prominent workforce, the aircraft separating controllers, had become a key issue demanding FAA attention by the time the A-76 competition began. Recall that President Reagan had fired most of the aircraft separating controllers in 1981, so that a large proportion of that workforce had been hired in the early 1980s, and that air traffic controllers may retire with as little 25 years of service at any age or only 20 years of service at age 50, 5 U.S.C. §§ 8336, 8412. Given the hard math of that situation, in the early years of this decade the FAA knew that it would soon be faced with a retirement crest of aircraft separating controllers. As Secretary Mineta put it with respect to aircraft separating controllers, by the end of 2002, the FAA realized that “[l]arge numbers of controllers will be eligible for retirement in the next few years,” and that the FAA would need to “aggressively pursu[e] succession planning for the current controller workforce.” Mineta Determination, Ex. 27 at P01271.
The FAA is by no means alone in expressing concern about an aging workforce. “Like many executive branch agencies, the judiciary,” for example, “is concerned about its aging work
60 For purposes of defendants’ summary judgment motion only, we assume arguendo that persons alleged to have made references to an “aging workforce” actually did so.
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force.”61 The problem that such concern with an aging workforce highlights is not what has been referred to as the “very essence of age discrimination,” the belief “that productivity and competence decline with old age,” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). As Secretary Mineta recognized, the concern is instead that an employer is faced with a challenge of assuring that the next generation of workers will be brought on board in time to be “fully and timely trained,” Mineta Determination, Ex. 27 at P01271, a process that, for aircraft separating controllers, can take three years, Reyna Decl. ¶ 6. If anything, this concern is the opposite of ageism: It is a worry, not that the oldest workers are no longer sufficiently competent, but that the youngest are not yet sufficiently experienced.
The courts therefore recognize that an employer may have an understandable and lawful concern that retirement of a large portion of the workforce would "result in a sudden loss of a ‘critical mass of expertise and knowledge in certain areas.'" Mereish v. Walker, 359 F.3d 330, 337 (4th Cir. 2004) (quoting employer). Employers may therefore legitimately have and express concerns about an “aging workforce” without running afoul of the ADEA. E.g., Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 548-49 (6th Cir. 2004); H.R. REP. NO. 90-805, reprinted in 1967 U.S. CODE CONG. & AD. NEWS 2213, 2219-20; Cochrane v. Norton, 2003 WL 21768006, at *4 (N.D. Cal. July 28, 2003) (“strongly disagree[ing]” with assertion that agency report “highlighting the difficulty of an aging workforce demonstrates a discriminatory animus”); Duffy v. Barnhart, 2002 WL 1933236, at *8 n.11 (E.D. Pa. Aug. 21, 2002) (rejecting class-action ADEA claim despite agency’s “concern[ ]” with “general aging” of its workforce);
61 Executive and Judicial Compensation in the Federal Government (Quadrennial Commission): Hearing Before the Subcomm. on the Federal Workforce and Agency Organization of the H. Comm. on Gov’t Reform, 109th Cong. 57 (2006) (statement of Judge D. Brock Hornby and Chief Judge Philip M. Pro on behalf of Judicial Conference of the United States).
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Hanan v. Corso, 1999 WL 320858, at *16-17 (D.D.C. May 18, 1999) (Facciola, M.J.) (employer’s speech noting that, as “relatively large numbers” of employees became eligible for retirement, there were not “adequate numbers of younger employees in the pipeline to maintain a stable internal succession system” did not evidence an intent to discriminate). Simply stated, “[g]eneral comments about the aging workforce are not the sort of discriminatory comments that give rise to an ADEA claim.” Cox v. Infomax Office Sys., Inc., 2009 WL 124700, at *7 (S.D. Iowa. Jan. 16, 2009).
G. The Agency’s Decision That Lockheed’s Bid Offered Taxpayers The Best Value Was Not Based On Age
The final decision in the chain of decisions that led to the RIF, that Lockheed’s bid offered the best value to the taxpayers, was, like the earlier decisions, free of any age discrimination. We address first an argument by plaintiffs that the entire competition should have been terminated prematurely and then address the decision that Lockheed’s bid won the competition.
1. The Alleged “NAATS Proposal” In 2003, after years of telling Congress in public that all existing stations should remain open and more specialists should be hired,62 almost a year after Bertram decided to undertake the A-76 study, and after the ACA and its teams were already hard at work, in private Wally Pike, the then president of plaintiffs’ union (NAATS), allegedly handed the FAA Administrator a short and informal proposal for consolidation that NAATS might have been able to get its
62 E.g., Department of Transportation and Related Agencies Appropriations for 2002: Hearing Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on Appropriations, 107th Cong. 471 (2001) (statement of Wally Pike).
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members to agree to, if the FAA promised to kill the A-76 study and managed to successfully negotiate four other agreements with the union. Ex. 29 (“NAATS proposal”).63
Actually, the exhibit we just cited as the “NAATS proposal” that was allegedly given to the Administrator is a document that the parties know was not given to her. Whatever was given to her (we continue to assume only for purposes of argument that something was given to her, but will not continue repeating “allegedly” from here on) was given to her in a private one-onone meeting, Pike Dep. 104, with instructions by the union president that it be subject to a “close hold,” which meant in his opinion that the Administrator could talk about the proposal with a few people but not make copies for them to analyze, id. at 118. Meanwhile, although the union’s leadership knew the details of the proposal (to the extent there were details), the union membership did not. Jaffe Dep. 75, 81-84. The requested secrecy worked all too well as a true copy of whatever proposal was given the Administrator was apparently not integrated into the FAA record system and could likewise not be found in even NAATS’ own records or by the three principal drafters of the document, plaintiffs Jaffe and Breen and dismissed plaintiff Dodson (see Dodson Dep. 28-29 (identifying their roles)), all of whom were deposed. See, e.g., Dodson Dep. 123 (“I don’t have a copy of the original”).
The exhibit that we are calling the “NAATS proposal” was created “over two years” after an earlier version had been presented to the Administrator. NAATS proposal at 1 (header “note”). In the interim, it was edited. It is not known what changes were made. Wally Pike
63 We assume arguendo for purposes of defendants’ summary judgment motion that some proposal was handed over to the Administrator. Doubt whether it was actually handed over is fueled in part by the circumstances to be set forth in the text and in part by the discrepancy between the union president’s 2005 declaration that he handed the proposal to the Administrator on June 29, 2003, Pike Decl. (Docket 31-7) ¶ 3, and his 2008 deposition testimony that he never met with her on a Sunday, Pike Dep. 91, 93, 145.
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thought that the actual proposal had not included the charts that are the last four pages of the thirteen-page “NAATS proposal.” Pike Dep. 85. Although he thought first in his deposition that, except for font and formatting changes, the text preceding the charts had been unchanged, id. at 84-85, he later acknowledged that the union’s in-house counsel and a successor union board of directors had inputs, id. at 98-99, and that, as a result, “even after this proposal went to the administrator there were still refinements going on in this,” id. at 98.
A recurring feature of the NAATS proposal, or at least of the “refine[d]” version of the proposal that is all we have to go by, is that it sought to save flight service specialist jobs by raiding work done by other trades. The central NOTAMs office, whose workers were not represented by plaintiffs’ union, Pike Dep. 109, was, according to the proposal, “redundant and unnecessary” and should be “clos[ed].” NAATS proposal at 5. According to the NAATS proposal, the FAA should have terminated a contract with the Commerce Department, which provides the FAA with Center Weather Service Unit (CWSU) meteorologists who advise aircraft separating controllers about the weather. Those jobs, according to the proposal, should have gone to specialists with “appropriate” additional training, NAATS proposal at 6, never mind that specialists who wanted to get the appropriate training to become meteorologists would already have been able to compete for job openings at the Commerce Department. What would happen to the careers of the CWSU meteorologists that the specialists wanted to displace – probably a RIF – would be the Commerce Department’s problem.64 NAATS also proposed that specialists
64 In his deposition, the former union president claimed that the Commerce Department employees would lose their jobs to his union’s members only by attrition. Pike Dep. 115-16. That is inconsistent with what the proposal actually says. The proposal pegs the cost to the FAA of its contract with Commerce at $10 million per year, NAATS proposal at 6,and then touts $70 million savings over the first seven years from cancelling that contract, id. at 13, i.e., it assumes
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take over Visual Flight Rules (“VFR”) flight following, work currently assigned to aircraft separating controllers. NAATS proposal at 5-6. Such VFR flight following includes providing, upon request, radar vectors for purposes of separating aircraft. FAA, AERONAUTICAL INFORMATION MANUAL § 4-1-15(b)(2) (Feb. 14, 2008 web version). However, specialists were not trained in separating air traffic, and did not have the necessary radar to separate air traffic, see Mitchell Dep. 20; Turner Rep’t at 4-5. Even if the FAA bought the needed equipment and provided the needed training, having two sets of controllers giving aircraft separating directions in the same airspace implies that neither would have really had sole control.
To the limited extent that the NAATS proposal envisioned job cuts in the flight service workforce itself, the cuts were concentrated on the oldest, supervisory portion of that workforce, with more than twice the salary and benefit savings proposed through cuts in managerial positions (average age 53, McDaniel Decl. ¶ 11) than through cuts in the more numerous line positions (average age, 50, id. ¶ 12). NAATS proposal at 13.
NAATS claimed that its proposal would have saved about either $1 billion or $800 million over seven years. NAATS proposal at 8, 13. Even if one of those back-of-the-envelope calculations were accurate, not only is that less than the $1.6 billion over ten years that the FAA expected to save from the Lockheed contract (not counting the “cost avoidance” savings), but it
64(...continued) that the FAA would immediately stop paying Commerce for all CWSU work.
It is by no means certain that, even if the FAA had wanted to eliminate CWSU meteorologists, it would have been able to do so. The FAA recently proposed a consolidation of these positions, and even that consolidation proposal has been highly controversial. See, e.g., Alfonso Castillo, Schumer Urges FAA To Reconsider Moving Jobs, NEWSDAY, Apr. 15, 2009, at A22 ; Jim Tharpe, Controllers Blast FAA Plan To Shift Meteorologists, ATLANTA JOURNALCONSTITUTION, Feb. 24, 2009, at B1; Michael Sangiacomo, Weather Outlook Cloudy for FAA Plan: Industry Workers Object to Relocating, CLEVELAND PLAIN DEALER, Dec. 25, 2008, at A1.
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is a gross, rather, than net, savings. Under the NAATS proposal, the FAA would have to agree to increase specialist compensation out of that $1 billion or $800 million (a condition of union agreement to its own proposal, see id. at 2, 8), and then would have had to use whatever was left of that alleged savings after giving the specialists pay raises to buy the needed new technology, id. at 8. By contrast, under the outcome of the A-76 process, Lockheed bought the new technology, so that was an expected $1.6 billion savings plus having the benefits of new technology, rather than $800 million to $1 billion savings minus pay raises to buy new technology.
In any event, the A-76 process itself is designed to more thoroughly capture the ideas for streamlining and efficiency of the union and its members. Dismissed plaintiff Donna Dodson, one of the principal authors of the NAATS proposal, became a full-time member of the MEO team along with a union colleague, Dodson Dep. 33-34, Pike Dep. 61-62, Grace Dep. 42-51. They were joined, not only by workers from FAA management, see Grace Dep. 42-51, but also by consultants hired to advise and assist the MEO and by industry partners that would be supplying equipment, systems, or buildings to the make the MEO’s proposed solution work, including Sprint, Harris Consulting Corp., Avaya Communications, SolaCom Technologies, and ICF Consulting, id. The result of the manpower and array of talent available to think through the issues was a several hundred page proposal by the MEO dense with specifics compared to the short sketch of even the “refine[d]” NAATS proposal. See Kansier Decl. ¶ 24 (NAATS proposal did not meet standard required of A-76 proposals).65 Moreover, the A-76 process also harnessed the benefit sought by Congress in the FAIR Act, 31 U.S.C. § 501 note, of having different teams
65 While the proposals of Lockheed and the other private bidders are proprietary, and even parts of the MEO proposal are proprietary given the involvement of the MEO’s industry partners, volume VII of the MEO proposal is not proprietary, and illustrates the detail found in the competing proposals. See Ex. 30, MEO Proposal, Volume VII.
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competing to come up with the most efficient way of completing the necessary tasks, which would be far more likely to give to arrive at a superior solution. It is no wonder if the FAA preferred to complete the A-76 process rather than kill it prematurely on the off-chance that the FAA would be able to reach an agreement on the NAATS proposal; that NAATS would be able to sell the plan to its members once it disclosed the details; that the FAA and NAATS would reach agreement on all the other conditions to the plan insisted on by NAATS as the price of its proposal, NAATS proposal at 1-2; that the FAA would be able to get out of its contract with Commerce and deal with the other employees that NAATS wanted to displace; and that the NAATS proposal, though developed without the benefits of the A-76 process, would result in serious savings or efficiency improvements.
2. The Decision That Lockheed’s Bid Was Best The evaluation of the proposals during the A-76 competition did not turn on the evaluators’ perceptions that the workforce was aging. Blakey Decl. (Docket # 23-36) ¶ 5; Blakey Dep. 228; DeGaetano Dep. 98; DeGaetano Decl. ¶ 8; Kansier Decl. ¶ 26; Vorce Decl. ¶ 4. While people involved in the A-76 process pointed to an “aging workforce” as a reason for the prior decision to have a competition, those comments do not even purport to relate to any effect of an “aging workforce” in choosing among the competitive bids. In fact, all the competitors, MEO and private-sector competitors alike, were on level playing field and had the same existing workforce, which was no more aging for any one of them than for the others, as a starting point for their labor force. The A-76 rules of competition, moreover, helped avoid a potential disadvantage for the agency’s in-house MEO team of starting with an aging workforce. As required by Circular A-76 (Attachment C, § B(2)(e)(1)), the “COMPARE” software used to
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evaluate the cost of the MEO bid requires agencies to assume payroll and benefit costs based on the mid-career salary and benefit cost (here, GS-12, step 5), Grace Dep. 76-77. Thus the cost of an MEO proposal is deemed by the agency to be the same whether the employees are mostly younger employees not yet receiving their mid-career salaries or mostly older employees with higher than mid-career salaries.66 The MEO’s competitors were told that the FAA’s assessment of the “realism” of their proposed labor costs would be judged by that same GS-12, step 5 benchmark. Neill Op. at 13; Kansier Dep. 152 (“We did not want someone to low-bid and basically underpay the employees because the employees would not stay, so we told the offerors that for purposes of evaluation . . . we considered a 12 step 5 to be reasonable”).
Lockheed’s winning proposal was “built around a carefully modeled consolidation” of the existing facilities “and a staffing plan that was designed to take advantage of the existing skills and experience in the” pre-existing “federal workforce.” Courain Decl. ¶ 18 (emphasis added). Lockheed proposed to “strategically consolidate the” pre-existing “stand-alone facilities into a totally integrated network of 3 hubs” and pre-existing facilities that would be “refurbished and outfitted with modernized system infrastructure equipment.” Id. ¶ 19. “With respect to new technology,” Lockheed promised that its “new integrated system [would] display all available meteorological and aeronautical information at each specialist’s workstation in a unified, integrated manner,” and that “[a]ll flight plans, pilot and aircraft profiles, contact histories, and other data will be universally accessible from every . . . workstation at any time, anywhere in the country.” Id. ¶¶ 22-23. “Among other things,” and in contrast to the prior “‘stove-piped’” system, the Lockheed proposal featured “‘load balancing’ among all facilities and specialists and
66 A detailed explanation of the COMPARE software may be found at http://www.comparea76.com/ (last visited April 22, 2009).
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flexibility in routing customer requests for assistance with minimal wait time for the caller.” Id. ¶ 23.
The agency officials who evaluated the competitive proposals concluded that, of the five bidders, Lockheed’s proposal was clearly the best on technical merit and a close second (to another private bidder) on cost. The technical assessment was made by a highly experienced technical team of more than twenty-five core members plus over thirty advisors, and the cost assessment by a thirteen- member cost team. Neill Opinion at 20; Def’s Responses To Pls’ 3d Set of Interrogatories at 18-19. The Source Selection Evaluation Board co-chaired by Kansier disagreed with some of the teams’ subsidiary findings and viewed the MEO bid somewhat more favorably, but still concluded that Lockheed had the “‘best technical solution’” and “‘clearly provided the greatest benefit to the Government.’” Neill Opinion at 100, quoting SSEB Report. The SSEB did not consider the age of the workforce. Kansier Decl. ¶ 26; Vorce Decl. ¶ 4. Even Marilyn Jackson-Brame, Deputy Director of ACA, who had opposed the decision to conduct the A-76 acquisition, concluded that Lockheed’s bid was better than that prepared by the MEO for the in-house organization to which she had devoted her thirty-year FAA career. Jackson-Brame Dep. 208-09. The deciding official, Vice President of Acquisition and Business Services Dennis DeGaetano, likewise concluded on the merits that Lockheed had the best bid. DeGaetano Dep. 98; DeGaetano Decl. ¶¶ 7-8.67
67 The decision before Administrator Marion Blakey on the administrative appeal of the bid protest made to the Office of Dispute Resolution was not whether Lockheed had the best bid, but whether DeGaetano’s decision that Lockheed had the best bid was arbitrary and capricious. She agreed with Judge Neill’s recommendation that it was not arbitrary and capricious. Ex. 25. Age played no role in her decision. Blakey Decl. (Docket # 23-36) ¶ 5; Blakey Dep. 228.
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Any notion that all these recommending and deciding officials reached the conclusion that Lockheed had the better bid after such painstaking consideration of the opposing bids as a mere pretext to cover for naked age discrimination is simply not plausible. An agency does not take sixty people away from other work or hire them as consultants just to staff and advise the tech team alone (Neill Opinion at 20, 54-55) and have them engage in detailed evaluation of complex bids merely as some Potemkin façade to screen the real decision process plaintiffs’ theory supposes, one involving no more effort than looking at the employees’ ages and seeing that they were old.
In assessing whether the painstaking evaluation of Lockheed’s bid by so many agency employees was just some vast pretextual conspiracy to cover up a pre-determined decision to fire workers because they were old, the question for the Court is not whether those agency officials correctly viewed Lockheed’s bid as best. Instead, as Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495-97 (D.C. Cir. 2008), strikingly illustrates, even where there is a sharp and genuine dispute over whether the employer’s stated non-discriminatory reasons for a personnel action were wholly unfounded as a matter of fact, the employer is still entitled to summary judgment (to summary judgment, not merely an opportunity to win after an expensive trial) unless there is also a genuine dispute whether the stated reason, mistaken or not, was the actual reason. Only if an employer made an error “too obvious to be unintentional,” is there “perhaps” a basis to infer that it instead “had an unlawful motive” for its actions. Fischback v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996). The FAA’s decision to award the contract to Lockheed, whether or not the best decision it could have made, was certainly not an error “too obvious to be unintentional.”
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That very agency decision has already been tested in a full and fair administrative litigation between the same parties – Breen was allowed over Lockheed’s objection to represent all the bargaining unit members, ODRA Intervention Decision, Ex. 24 – and upheld by Judge Neill’s careful 102-page single-spaced opinion in the Office of Dispute Resolution proceedings and the FAA’s Administrator’s affirmance of that decision. The standard of review in the ODRA proceedings was the familiar “arbitrary and capricious” standard. Neill Opinion at 61. That standard, though deferential, is plainly less deferential than the standard for determining whether an employer’s reason for its action is merely a pretext. As Brady illustrates, even if an employer’s decision is flat-out wrong it may not be pretextual; but an employer error “too obvious to be unintentional” will necessarily be arbitrary and capricious. If DeGaetano’s decision that Lockheed’s bid was best had in fact been too obviously wrong for the error to be unintentional, Judge Neill would not have needed 102 pages to say so and he could not possibly have recommended sustaining an obviously wrong action at the end of his opinion.
Indeed, on the question whether the assessment of Lockheed’s bid as best was pretextual, Neill’s opinion and the FAA order affirming it have issue-preclusive effect.68 Where there has been a full and fair opportunity for litigating whether a decision of an employer was justified in a federal administrative scheme that is not part of the ADEA itself, and where there is an opportunity for federal judicial review, findings of administrative tribunals sustaining the legitimacy of an employer’s decision are entitled to issue-preclusive effect in subsequent ADEA
68 In the motion to dismiss, defendants argued that the entire case ought to have been dismissed for “lack of jurisdiction” as a “collateral attack” on the Lockheed contract award that should have been litigated entirely in the ODRA proceedings and any petition for review in the Court of Appeals. This Court rejected that broader argument, Breen v. Peters, 474 F. Supp. 2d 1, 4-6 (D.D.C. 2007). Without waiving any potential appeal rights, defendants do not renew it here.
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proceedings on the issue whether that same decision was a mere pretext for discrimination. Tice
v. Bristol-Myers Squibb Co., 515 F. Supp. 2d 580 (W.D. Pa. 2007), aff’d, 2009 WL 943838 (3d Cir. Apr. 8, 2009).69 Applying the doctrine of issue preclusion in this circumstance “eases the
backlog of cases that exist on the dockets of all courts by keeping issues that have already been
resolved at rest,” and “serves as an aid to judicial fairness, preventing parties who have
previously litigated . . . factual issues from having to relitigate those very same issues which
have already been proved.” Tice, 515 F. Supp. 2d at 600.
Plaintiffs here had a full and fair opportunity to litigate this matter before ODRA. Breen
and the flight service specialists on whose behalf she was acting were represented by counsel
whom the special master complimented for “helpful” briefing, and discovery was available and
taken in the ODRA proceedings. See Neill Opinion at 46, 48, 50, 62 & n.11. The contesters
“challenged virtually every phase of this procurement once proposals were submitted,” including
“the adequacy of discussions, the reasonableness of the technical evaluation, the accuracy of the
cost evaluation, the validity of the SSEB deliberations, and the correctness of” DeGaetano’s
decision. Neill Opinion at 61. Plaintiffs also had, though they chose not to exercise, an opportunity for judicial review.70
69 The Third Circuit affirmance of Tice was not selected for publication even though it addressed an issue of “first impression,” 2009 WL 943838, at *1, and drew a partial dissent. While we rely primarily on the extensive district court opinion, Rule 32.1 of the Federal Rules of Appellate Procedure permits citation of the appellate decision as well in this circumstance.
70 The reply brief on the motion to dismiss noted that, in light of National Federation of Federal Employees v. Cheney, 883 F.2d 1038 (D.C. Cir. 1989), there may have been some question whether judicial review of the ODRA decision would have been available had plaintiffs sought such review. In NFFE, the avenue of review was a civil action pursuant to 5 U.S.C. § 702, which required the plaintiff to show that it was within the zone of interests of a relevant statute, and the Court of Appeals found that a union of employees displaced by an A-76 com-
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Even if the ODRA decision were not technically issue preclusive, it would still be
entitled to weight. See, e.g., Alexander v. Denver-Gardner Co., 415 U.S. 36, 60 & n.21 (1974).71
Judge Neill’s opinion, together with the other evidence, is more than sufficient to compel the
conclusion that the decision to choose Lockheed, if not correct, was at least not merely
pretextual.
In any event, the decision to choose Lockheed rather than the MEO or, for that matter, a
decision to continue the A-76 competition rather than fly off with the alleged NAATS proposal,
could not have been discriminatory no matter how it came out. Once the A-76 competition was
started, it was a “competition” among vendors for providing the flight service function, not a
“competition” between older and younger flight service specialists or between flight service
specialists and any other set of employees, younger or otherwise. Whether Lockheed or the
70(...continued) petition was not within the zone of interests protected by the statutes establishing the A-76 process. By contrast, as the FAA was careful to point out to plaintiffs in its final decision, judicial review of the ODRA proceedings, if available, would have been by petition for review to a court of appeals pursuant to 49 U.S.C. § 46110. Unlike the situation with civil actions under 5 U.S.C. § 702, for petitions for review under 49 U.S.C. § 46110, the question who is within the zone of interests to have prudential standing is one that “Congress has already answered . . . in section 46110(a)” itself, namely “‘a person disclosing a substantial interest in an order issued by the’” FAA with respect to aviation. Safe Extensions, Inc. v. FAA, 509 F.3d 593, 600 (D.C. Cir. 2007). Since plaintiffs had a substantial interest in the ODRA order, under the reasoning of Safe Extensions they had standing to pursue review in a court of appeals. NFFE also pre-dated the FAIR Act, which, though not addressing the precise issue of administrative or judicial review of A-76 awards, did make clear that the head of a federal employee union is an“interested party” who may bring an administrative challenge to a decision about whether a function performed by the union members is commercial. Section 3(b)(4) of the FAIR Act, 31 U.S.C. § 501 note.
71 In the Third Circuit affirmance of Tice, the judge who dissented in part because he thought the administrative proceedings ought not be given issue-preclusive effect nevertheless concurred in the judgment because, even on the employer’s summary judgment motion, “the District Court could permissibly adopt the ALJ’s findings of fact.” 2009 WL 943838, at *12 (Garth, J., dissenting in part and concurring in part) (emphasis original).
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MEO won the competition, the result would apply to all the flight service employees, young and old alike, and only to the flight service employees. The flight service employees might have preferred that the FAA choose the MEO rather than Lockheed, but the FAA was not about to, and did not in fact, choose Lockheed for the older employees and the MEO for the younger ones. The decision to choose Lockheed was not at all discriminatory.
H. Even If Plaintiffs Had Demonstrated That Consideration Of Age Played A Role In The Decisions They Challenge, Defendants Would Have Made The Same Decisions
We have explained above why the decisions that plaintiffs seek to challenge were made without regard to age. However, even if plaintiffs were able to show that age had played some role in one or more of the decisions, defendants would still be entitled to summary judgment if they would have reached the same decisions without consideration of age. Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989).72
That is the case here. As John Hennigan explained in his declaration, Hennigan Decl. ¶ 23, he would have made the same recommendations whether to have an A-76 competition regardless of whether he did or did not consider the age of the workforce.73 DeGaetano likewise indicated that Lockheed Martin’s bid would have represented the best value for the government whether or not age was considered. DeGaetano Decl. ¶ 8; see also Vorce Decl. ¶ 4 (SSEB did not consider age in making recommendations to DeGaetano). Mineta’s declaration similarly
72 In response to Price Waterhouse, Congress amended Title VII by limiting the effect of this same-action defense to the scope of relief. Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003). The ADEA, however, was not so amended, and the same-action defense remains a complete defense in ADEA cases. E.g., Baqir v. Principi, 434 F.3d 733, 735 (4th Cir. 2006).
73 Moreover, the classification of the flight service specialist positions as commercial is clearly correct as a matter of law, see Part III.D, supra, no matter what the FAA’s motivation for arriving at that correct answer may have been.
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noted that his decision against further outsourcing of towers was justified quite apart from any consideration of age. Mineta Decl. ¶ 16.74 So too, Bertram clearly would have reached the same decision regardless of any consideration of age, because in the actual world he did reach that decision without even knowing the workers’ age. Bertram Dep. 111-12. Similarly, James Washington explained that, as all the positions were being eliminated, age did not play a factor in his request that the RIF process begin. Declaration of James H. Washington (Docket # 23-35) ¶¶ 4,6. In short, even if plaintiffs had shown that impermissible stereotyping of an aging workforce somehow had been a factor taken into account in some decision, the decisionmakers’ explanations for their actions plainly show that the legitimate non-discriminatory reasons for their decisions would have resulted in the same actions. Defendants are accordingly entitled to summary judgment.
74 In any event, the FAA clearly would not have outsourced more towers whether or not Mineta’s reasoning had relied on age stereotypes: No matter what Mineta (let alone the FAA) thought of the issue and no matter why he thought what he thought, the Senate clearly would not have permitted any such outsourcing, see Part III.E, supra, so the same action (in this case, inaction) would have resulted.
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Conclusion We noted above how the facts of this case differ in some respects from some other kinds of termination cases. One final difference should be mentioned. Defendants did not terminate these plaintiffs because of any view that plaintiffs had done something wrong; because of any view that plaintiffs could not, for age or any other reason, do the jobs they were asked to do; or even because of some view that, though good employees, plaintiffs were not as good as some other employees. Plaintiffs rendered years of honorable service. Their federal employment, however, was not ended by age discrimination, but by events that made it no longer a sensible idea for the taxpayers to have the FAA operate flight service as it once existed in the pre-internet 20th century heyday of general aviation. For the reasons stated above, defendants’ motion for summary judgment should be granted.
Respectfully submitted, TONY WEST Assistant Attorney General JEFFREY A. TAYLOR United States Attorney STUART A. LICHT Assistant Branch Director Civil Division
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Of Counsel:
Eden Brown Gaines, Esq. Michael Doherty, Esq. Julia A. Rhodes, Esq. Personnel & Labor Law Staff Office of Chief Counsel Federal Aviation Administration 600 Independence Ave., S.W. Room 1E100 Washington, D.C. 20591 Phone: (202) 385-8254 Fax: (202) 493-5085

/s/ Brian G. Kennedy BRIAN G. KENNEDY (DC Bar No. 228726) ADAM D. KIRSCHNER (IL Bar No. 6386601)
United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7126 Washington, D.C. 20530 Telephone: (202) 514-3357 Fax: (202) 616-8470 Email: brian.kennedy@usdoj.gov
Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2009, a true and correct copy of the foregoing

Defendants’ Motion for Summary Judgement, Defendants’ Statement of Material Facts as To

Which There are No Genuine Issue, and accompanying Memorandum of Points and Authorities

in Support of Defendants’ Motion for Summary Judgement were served by first-class mail upon

the following pro se plaintiffs who are not served through the Court’s ECF system:

Duane Swanson RD #1 Box 300BB Roaring Spring, PA 16673

Eddie Krenzelok 108 Lincoln Cove Jonesboro, AR 72404

Jim Wilkerson 605 Audrey Drive Fairbanks, AK 99709

Norman B. Buckallew 3519 Kites Landing Rd Florien, LA 71429

Randell Liles 737 Highland Crest Hurst, TX 76054

____/s/ Adam D. Kirschner___ ADAM D. KIRSCHNER

 
 Case 1:05-cv-00654-RWR Document 261 Filed 06/15/09 Page 1 of 73

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. BREEN, et al., Plaintiffs,
v. RAY H. LAHOOD SECRETARY OF TRANSPORTATION, et al.,
Defendants.

) ) ) ) ) Civil Action 05-654 (RMR) ) ) ) ) ) )

PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT1

Plaintiffs, Kathleen A. Breen, et al., by and through

undersigned counsel, hereby move this honorable Court to grant

summary judgment in their favor on the grounds that Plaintiffs

have demonstrated that Defendants’ A-76 process and resulting

reduction-in-force had an unlawful disparate impact on

Defendants’ Flight Service Controllers based on their age.

Plaintiffs also move this honorable Court to find, in light of

the considerable evidence of Defendants’ deliberate and

intentional discrimination against its “aging workforce” of

Flight Service Controllers, that there is at a minimum a genuine

dispute of material fact over the issue of Defendants’

intentional age discrimination. For that reason, and because

1This Brief fully incorporates Plaintiffs’ Statement of Material Facts in Opposition to Defendants, attached hereto.

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Defendants are not entitled to judgment as a matter of law, Plaintiffs request that the Court grant summary judgment on disparate impact and that the Court deny Defendants’ Motion for Summary Judgment, and, as appropriate, schedule the disparate treatment issue for trial. I. The Evidence Shows That Defendants’ A-76 Process Unlawfully
Imposed an Adverse Disparate Impact on Plaintiffs Based on Age. Plaintiffs are entitled to summary judgment on the issue of disparate impact because a) the Age Discrimination in Employment Act (ADEA) holds the federal government to an especially high standard with respect to age discrimination, b) the law prohibits personnel actions that impose a disparate impact on older employees, c) the statistical evidence in this case clearly demonstrates that Defendants’ A-76 process, and its subsidiary processes, imposed a statistically incontrovertible disparate impact on Plaintiffs because of their age, and d) Defendants have no meritorious defense to their unlawful actions. A. The ADEA Holds the Federal Government to a Higher
Standard than the Private Sector. The government of the United States is governed by the ADEA exclusively through the provisions of 29 U.S.C. 633a, which states in pertinent part as follows: “All personnel actions
2

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affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” (emphasis added). The Act further provides, in subsection (e), that this is the only section that governs federal employees: “Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter, other than the provisions of section 631 (b)2 of this title and the provisions of this section.” See also Mem. Opinion and Order dated Sept. 30, 2005, at 5. This strong mandate has been rigorously interpreted by the Courts. In its sweeping language, the ADEA clearly provides for actions for age discrimination against the government based on either theories of disparate impact or disparate treatment. See Mem. Op. at 9-11 (Jan. 8, 2007).
B. The Congress and the Courts Have Stated a Strong Mandate for Eliminating Discrimination Based on Age in the Federal Government.
As this Court has clearly stated, the sweeping language of the Act as it applies to the federal government makes no
2 Section 631(b) provides: “In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 633a of this title, the prohibitions established in section 633a of this title shall be limited to individuals who are at least 40 years of age.”
3

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distinction as to method of proof (i.e., it does not state whether discrimination must be intentional or unintentional, or proven through disparate treatment or disparate impact), and a demonstration of discrimination through either disparate impact or disparate treatment is equally available to Plaintiffs. See Mem. Op. at 11 (Jan. 8, 2007). At the same time, this Court also notes that it is important to apply a disparate impact analysis to the federal government that is appropriate in light of the special provisions of 29 U.S.C. 633a. See Mem. Op. at 11 n.3 (citing Lagerstrom v. Mineta, 408 F. Supp. 2d 1207, 1212 (D. Kan. 2006)). The Supreme Court has observed that, unlike the remainder of the ADEA, which is based on the Fair Labor Standards Act, Section 633a is based on Title VII of the Civil Rights Act of 1964. Lehman v. Nakshian, 453 U.S. 156, 166-67 (1981). As the D.C. Circuit has explained at some length, Congress clearly intended the ADEA to hold the federal government to a higher standard than the law imposed on the private sector. "Congress's actions show that it intended its mandate to reach more broadly in the federal sector than in the private sector." Forman v. Small, 271 F.3d 285, 296-97 (D.C. Cir. 2001). Defendants' conduct in this case presents multiple departures from the federal norm imposed by Congress which
4

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mandates that the government's personnel actions shall be free of age discrimination, and it is perhaps not surprising that in a case in which the government strayed so far from so many of the its normal personnel procedures that it should have found itself straying onto the forbidden ground of age discrimination. In fact, there is a compelling combination of statistical and anecdotal evidence that makes a conclusive case of age discrimination based on disparate impact and a compelling case of age discrimination based on disparate treatment. The statistical analysis of the Defendants’ own expert demonstrates beyond a shadow of a doubt that the A-76 process imposed an adverse disparate impact on the Flight Service Controllers based on their age, 92 percent of whom were over the age of 40. See Ex. 1, Report of Bernard Siskin, Defendants’ expert. In addition, the FAA's own actions, coupled with the statistics, give rise to a strong inference that the FAA intended to rid itself of its older Flight Service Controllers. Particularly probative in this regard is the analysis of Plaintiffs’ expert, Dr. Dale Belman, of the rehiring pattern of younger RIF'ed Controllers by the FAA. See Ex. 2, Report of Dr. Belman, at 5-6. During the RIF process, approximately 305 younger Flight Service Controllers were able to continue at the FAA as Controllers. See
5

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Ex. 3, George Williams’ Chart.3 What Dr. Belman's analysis reveals is that through sleight of hand, the FAA selectively purged its ranks of its older workers, by RIFing all Flight Service Controllers and then selectively rehiring younger Controllers. See id.4 Contrary to Defendants' contorted reasoning, Plaintiffs do not seek to challenge the retention and rehiring of younger Controllers as a personnel practice but simply to reveal it as a pretext. The result, in any case, has far-reaching implications for the analysis of disparate treatment. Dr. Bernard Siskin, Defendants’ expert, argued strenuously that no statistical conclusions were possible with respect to disparate treatment. See Ex. 1, Siskin Dep. at 2123. Any such analysis, he claimed, would have to be based on selection among a few large groups, too few to analyze by statistics. Id. In fact, however, the FAA's policy of "pick and choose" its younger RIF’ed Controllers during and immediately
3This Chart is Exhibit 5 to FAA’s Deputy HR Director George Williams’ deposition on July 20, 2005.
4Defendants question Dr. Belman's selection of data, but like an ostrich with its head in the sand, they have been able but not willing to perform their own calculation of the ages of the rehired Flight Service Controllers versus those not rehired with the data in their possession. Plaintiff’s expert, Dr. Belman's calculation is therefore unrebutted.
6

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after the RIF process strongly suggests that Dr. Siskin is incorrect, and that statistical analysis on the individual level is appropriate. As Dr. Siskin admitted in his deposition, if analysis of disparate treatment by individual is appropriate, then the statistical analysis is identical to the statistical analysis of disparate impact. In that case, the statistics, coupled with the anecdotal evidence of record, lead to the same ineluctable conclusion: the FAA discriminated against the Flight Service Controllers based on their age when it fired them through the A-76 process in the contracting out to Lockheed Martin.5 Of course, the catastrophic effect of Defendants' discriminatory policy has not been borne by the Flight Service Controllers alone. As is all too often the case with discriminatory actions, the repercussions extend well beyond the immediate targets of the discriminatory employer. In this case, the casualties include pilots, the aviation community, and ultimately the Flight Service system itself. In ironic counterpoint to Defendants' prediction of the death of general aviation, Defendants' statistics show that general aviation has actually been on an uptick since 2005, increasing by
5Not to mention the families of the RIF’ed Controllers who could not find comparable employment.
7

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approximately a percent point. In contrast, usage of Flight Service, now run by Lockheed,6 has plummeted by approximately 66 percent. See Ex. 4, Administrative Fact Book, 2005-2008. The cause is readily apparent not in a decline in flights (about the same) or a sudden spike in Internet usage, but in the monumental incompetence of Lockheed, which is dramatically illustrated by the long waits, personnel chaos, geographic confusion, and inadequate technological support to which the Controllers themselves attest. See Declarations attached as Exhibit 5.
C. Plaintiffs Must Show a Significant Statistical Disparity in Order to Demonstrate Disparate Impact.
Plaintiffs can prove discrimination based on age if they can show that Defendants’ implementation of a facially neutral practice resulted in a statistically significant adverse effect on older employees. The Supreme Court defined disparate impact discrimination in the landmark case of Griggs v. Duke Power Co., 401 U.S. 424 (1971), and has since applied it in the context of age discrimination in such significant cases as Smith v. City of Jackson, 544 U.S. 228 (2005) (disparate impact a viable theory under ADEA), and Meacham v. Knolls Atomic Power, 128 S.Ct. 2395 (2008) (holding that employers bear burden of
6Lockheed Martin will be referred to simply as Lockheed for the remainder of this Brief.
8

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production and persuasion on affirmative defenses to disparate impact). To the extent the Congress addressed disparate impact and the Age Discrimination in Employment Act in the Civil Rights Act of 1991 at all, it addressed the private sector rather than the higher standard imposed on the federal government by 29 U.S.C. § 633a.
In Griggs, the defendant power company required applicants for employment in any department but labor (which were the lowest salaried jobs) either to have a high school diploma or to pass an intelligence test for which the cut-off score approximated that of high school graduates. Neither qualification was shown to be particularly related to any specific job. In North Carolina at that time, 34 percent of whites had high school diplomas, compared to only 12 percent of African Americans, and 58 percent of whites passed the intelligence test as opposed to six percent of African Americans. Finding that the tests or possession of a diploma were not rationally related to the jobs for which they were required, and that African Americans were disproportionately affected by these tests, the Court found these practices barred by the Civil Rights Act:
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the
9

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barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. . . . The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. 401 U.S. at 431. See also Albemarle Paper v. Moody, 422 U.S. 405 (1975), and Smith v. City of Jackson, 544 U.S. 228 (2005). In order to prove disparate impact, Plaintiffs must first identify a facially neutral employment practice or set of practices that operates to impose an adverse effect or impact on older employees. In this case, Plaintiffs are challenging Defendants’ A-76 process (including its particular components: the classification of some Air Traffic Controllers as "core" commercial functions and others as "non-core" commercial functions; the selection of Flight Service for an A-76 study rather than other more suitable FAA functions that would not have impacted older employees in the same manner; and the selection of Flight Service for contracting out). In each case, the analysis of disparate impact is undertaken as the calculation of the likelihood that the observed outcome with respect to age would have resulted from a process that was blind to age. The more likely the observed proportion of older employees affected by the practice at issue
10

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could have been generated by an age blind random sample, the less likely it is that the practice has a discriminatory effect. Conversely, the smaller the likelihood that the observed outcome could have been produced by a random draw, the more likely it is that the practice has a discriminatory effect. Generally speaking, the Courts will find that a disparate impact is "statistically significant" and probative of discrimination if the difference is 1.96 standard deviations or greater. In the instant case, the 14, 19, and 22 standard deviations calculated by Defendants’ expert, Dr. Siskin, reflect a likelihood that there was a disparate impact in the case approximating the likelihood that the sun will rise tomorrow. See infra.
In a previous opinion, this Court also addressed the question of the magnitude of the impact on the individual controllers of loss of their retirement, particularly since older workers are likely to have less of a chance to recoup the pensions they lost when they were forced out of federal employment shortly before vesting. See Mem. Op. (Sept. 30, 2005). In this case, the losses to the Controllers were devastating. Using a judgment sample constructed by separating Controllers into different categories by post-RIF employment status and retirement status, Plaintiffs' damages expert,
11

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Professor Joseph Tryon, formerly Chairman of the Department of Economics at Georgetown University, calculated the lost wages and retirement benefits of eleven Plaintiffs. Professor Tryon used a standard methodology based on calculating the difference between the lifetime income a Plaintiff expected to receive from the federal government had there been no RIF and the lifetime income the Plaintiff expected to receive in actuality post-RIF. See Ex. 6, Tryon Report.7 Dr. Tryon's figures are conservative in a number of respects, including the fact that they are calculated based on 182 Plaintiffs rather than 237 and the fact that the subsequent mass layoffs of former FAA Controllers by Lockheed are likely to swell Plaintiffs’ damages beyond Dr. Tryon's calculations. Dr. Tryon made the assumption, reasonable at the time, that the former FAA Controllers employed by Lockheed would be able to mitigate their damages until the time they would have been required to retire from Flight Service, but it now appears that for many of them, their careers are once again being cut short. “Five flight Service stations to close,” AOPA Online http://www.aopa.org/advocacy/articles/2008/
7Defendants' expert William Carrington, although he differed from Dr. Tryon in certain inputs and assumptions, concurred in Dr. Tryon's methodology. See Ex. 7, Carrington Report at 11.
12

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081015fss.html (last visited June 15, 2009). Of the $63 million

dollars Dr. Tryon conservatively calculated for 182 Plaintiffs

based on present value at a generous 6 percent discount rate,

the losses attributable to lost retirement amount to

approximately $30 million. Defendants, although they cherry-pick

several Plaintiffs and attempt to question Dr. Tryon's

assumptions, have no competing estimate of the retirement

losses. See Ex. 7, Carrington Report.

The "practical

significance" of Defendants' actions on the lives of the

employees affected is enormous.

II. The Evidence Is Conclusive that Defendant's A-76 Process Had a Disparate Impact on its Aging Flight Service Controllers.

The statistical evidence of disparate impact presented by

Defendants’ expert, Dr. Siskin, is clear, uncontroverted, and

incontrovertible. Dr. Siskin, working for Defendants, conducted

statistical analyses of both Disparate Impact and Disparate

Treatment. Dr. Siskin's analysis found a statistically

significant Disparate Impact resulting from the A-76 process

well beyond the usual requirement of the Court for Disparate

Impact. In addition to his overall analysis of the A-76 process,

Dr. Siskin also analyzed component practices of the A-76 process

and also found overwhelming evidence of disparate impact. Dr.

13

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Siskin found that not only did the differentiation between core and non-core commercial functions have an adverse disparate impact on older employees, but also the actual selection of the Flight Service Controllers had an adverse disparate impact on older employees of the FAA.
A. The Evidence Demonstrates that the FAA's A-76 Process Imposed a Disparate Impact Based on Age.
Dr. Siskin, Defendants’ statistical expert, conducted analyses of the statistical effect of firing and contracting out the Flight Service Controllers both in terms of disparate treatment and disparate impact. Setting aside for one moment the analysis of disparate treatment, Dr. Siskin explained that his analysis of disparate impact was based on the study of comparable employees not as members of groups but as individuals, a methodology which he described as the standard for statistical analysis of disparate impact. See Ex. 1, Siskin Report at 14-15. Dr. Siskin laid out the fundamental nature of any statistical analysis of age bias in simple terms: 1) the population within which comparisons are being made must be similarly situated, and 2) the discrepancy between the results found for older and younger employees must be sufficiently large to be statistically significant.
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In defining the parameters of his analysis of disparate impact, Dr. Siskin stated that disparate impact analysis requires scrutiny of a particular employment practice to determine the probability that the observed effect by age is the result of a random process in which age is not a factor. Dr. Siskin conducted his disparate impact analysis calculating the probability that the age distribution with respect to the proportion age 40 or older in the group adversely affected by the practice was a random (age blind) draw from the appropriate FAA workforces. For each decision, he calculated the likelihood that the observed adverse outcome with respect to age was the result of an age blind draw from the appropriate FAA workforce and whether this likelihood met the standard for disparate impact of a 5% or less likelihood established by the courts. In making this comparison, he was able to determine whether the percentage of Flight Service Controllers who were over 40 was greater by a statistically significant degree than the percentage one would expect if they had been selected at random. See Ex. 1, Siskin Report at 15. Courts and statisticians have established that there is disparate impact, in this case by age, if the likelihood that an observed outcome was the result of a random (in this case age blind) process is 5% or less. The 5%
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likelihood can also be expressed as the result being 1.96 standard deviations away from the proportion of the population age 40 or older. See Ex. 1, Siskin Report at 5 n.4. The standard deviation is a statistical measure of the likelihood that an observed event was the product of chance. An event which is calculated to be 1.00 standard deviations from 0 would occur by chance about 16 times in 100. An event calculated to be 1.96 standard deviations from 0 would occur by chance 5 times in 100. An event which is calculated to be 3.0 standard deviations from 0 would occur by chance 1.4 times in 1,000. Events calculated as 5.0 standard deviations from zero would occur 3 times in 10 million by chance. Six Sigma, the statistical process control method, pioneered by Motorola and extensively used by firms such as General Electric, which virtually eliminates production errors, was titled six sigma8 because the likelihood of an event which is six standard deviations from zero is so small as to be inconsequential for decision making. Advanced statistics texts do not go beyond five standard deviations, if they go that far, in their tables because the likelihood of the event being the result of a random process is too small to be meaningful.
8Sigma is a symbol statisticians use to designate standard deviation.
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In Dr. Siskin's study, he found the likelihood that the age distribution of the labor force fired through the A-76 process arose by chance was a mind-blowing 14.72 standard deviations. See Ex. 1, Siskin Report at 39, Table 4. Dr. Siskin's first point of comparison was the number of Flight Service Controllers RIF'ed from among all FAA employees based on 2005 data supplied by Defendants (and also used by Plaintiffs' expert Dr. Dale Belman). See Ex. 1, Siskin Report at 39, Table 4. Not only does the statistical measure of 14.72 standard deviations demonstrate a disparate impact to a statistical certainty, but Dr. Siskin's figures on the 15.6 percent shortfall also indicate a high degree of practical significance.
Dr. Siskin mentions, but does not discuss, the idea of “shortfall” as a measure of practical significance in his report. The shortfall is the actual number of employees who would have to change to achieve a neutral, nondiscriminatory result consistent with random chance. In this case 1,957 Flight Service Controllers over 40 were RIF'ed, and 35,799 FAA employees over 40 were not RIF'ed. That means that 5.2 percent of the older employees were RIF'ed and 94.8 percent were not RIF'ed. In contrast, 150 of the Flight Service Controllers were under 40 and were RIF'ed, and 9,085 FAA employees who were under
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40 were not RIF'ed. That means that 1.6 percent of younger employees were RIF'ed and 98.4 percent were not RIF'ed. The percentage of older employees who were RIF'ed is more than three times the percentage of younger employees who were RIF'ed, and the disparity in terms of standard deviations is so great that it is certain not to be a chance outcome. Dr. Siskin calculates the "shortfall" in this instance as 264 employees each way. What this means is that if 264 more younger employees had been RIF'ed (414/8,821 = 5 percent) and 264 fewer older employees (1,693/36,063 = 4.7 percent), then the results would have been roughly neutral, and there would not be statistical evidence of disparate impact. To put this number in perspective, the Plaintiffs in this lawsuit are fewer than 264 fired older Controllers.
The analysis of the overall A-76 process is Dr. Siskin at his most conservative. By comparison, when he analyzes the effects of the subsidiary practices of selection of core and non-core functions and the selection of Flight Service from among the available non-core group functions, the evidence of disparate impact becomes even starker. Under the terms of the FAIR Act P.L. 105-270 (1998), federal agencies were first expected to make determinations as to which of their functions
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were “inherently governmental” and which were “commercial.” Thereafter, the agencies were expected to further divide the commercial functions into functions that were "core" and could not be contracted out to the private sector and functions that were "non-core" and could be contracted out. Perversely, for reasons explored more thoroughly below, the FAA classified some of its Series 2152 Controllers as "core" and some as "non-core" based on a loose set of criteria that left the FAA wide latitude for the discriminatory decision-making that led to the termination contracting out and termination of Flight Service Controllers.
In statistical terms, the decision to carve up Air Traffic Control into “core” and “non-core” had clear discriminatory implications. Based on a comparison of the six largest workgroups at the FAA (those over 1,101 FTE), Dr. Siskin finds again a clear disparate impact in the process of designating groups as “core” or “non-core” on the order of an astonishing 19.73 standard deviations. Only if 441 employees over 40 had switched places with 441 employees under 40 would there have been neutrality in the age distribution of employees subjected to the RIF. Put another way, the FAA would have had to have classified as “core” a quarter of the FAA Controllers subject
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to the RIF in order to achieve a nondiscriminatory result, or approximately twice the number of employees in this lawsuit.
Finally, Dr. Siskin calculated the adverse disparate impact of the selection of Flight Service for contracting out based on the 2002 population of FAA employees. In this case, Dr. Siskin measured the disparate impact at 22.01 standard deviations. The shortfall, or number of older Controllers who would have had to be retained (and younger employees who would have had to be fired) is 527, or 27.1 percent of the Controllers fired and more than two and a half times the number of Plaintiffs in this lawsuit.
Dr. Siskin does not address one other component of the A-76 process which, if not readily quantifiable, nevertheless had a clear adverse disparate impact on the Flight Service Controllers' "aging workforce." In the usual course of events, and consistent with the past practice of the FAA, any reduction-in-force by the Agency of its federal workforce would have entitled the employees to "bump and retreat" rights under the federal RIF procedures. See 5 C.F.R. § 701ff. The FAA deliberately circumvented the usual federal RIF process through the A-76. Only by denying "bump and retreat" rights could the FAA purge its older Controller workforce. At the same time,
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there existed no civilian equivalent of the federal Flight Service workforce (a normal concomitant of an A-76 competition), and hence the FAA was obliged to create an artificial anticompetitive environment (a “monopsony”), in which the aging Controllers had no realistic choice but to work for Lockheed, even if it meant sacrifices in their compensation and retirement benefits. Plaintiffs’ expert, Dr. Belman, recapitulating standard economics texts, explained in his Report and at his deposition a fact of economic life that is simply common sense. See Belman Report at 6-7. A young person in a highly skilled job like Flight Service can afford to get training in another job, and he has his whole working life ahead of him to recoup the cost of the training. Under such circumstances, he almost certainly will pay for retraining and make the cost back. An older person in a highly skilled job like Flight Service, however, may have a decade or less to work. If he elects to pay for training in another field, he is unlikely once his training is complete even to make up the cost of his training, much less close the gap between what he would have made if he had not been laid off. (For a 20-year-old, law school makes good economic sense; for a 50-year-old, it is a more dubious proposition, economically, assuming the two will incur the same debt.) In
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light of the fact that Flight Service is a well-paid and highly skilled occupation, but that aerial navigation and meteorological skills are in demand almost nowhere else other than in Air Traffic Control, Controllers had few palatable alternatives other than to work for Lockheed on whatever terms Lockheed offered. See Belman Report. Controllers who did not go to work for Lockheed generally either retired on low-end discontinued service pensions, accepted low wage federal jobs in the hopes of securing a retirement, or went to work at low wage, low skill jobs like sales clerk or bricklayer. See Tryon Report. Such a result is not surprising when one considers that despite their high skill level and responsible jobs, many Controllers do not have a college degree.
B. Defendants’ Only Legal Defense Is “Business Necessity.”
Unlike the remainder of the ADEA, which is based on the Fair Labor Standards Act, Section 633a is based on Title VII of the Civil Rights Act of 1964. Lehman v. Nakshian, 453 U.S. 156, 166-67 (1981). The District of Columbia Circuit has observed that the purpose and implication of this distinction is that the federal prohibition of age discrimination is stricter and more
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far-reaching than the provisions applying to other sectors of
the economy:
. . . Congress's actions show that it intended its mandate to reach more broadly in the federal sector than in the private sector. In amending the ADEA in 1978, Congress eliminated the upper age limit for federal employees in order to effectively end mandatory retirement in the federal sector in most instances, whereas it merely increased the coverage from 65 to 70 for private employers, limiting the protection from mandatory retirement in the private sector. See H.R. Rep. No. 95-950, at 2, 7-8, 10-11 (1978) (Conference Report); 124 Cong. Rec. 8, 218 (1978) (Sen. Javits, ranking minority member of the Human Resources Committee).
This focus on the sweeping language used by Congress is the same reasoning that the court relied upon in holding that § 2000e-16, in which Congress waived sovereign immunity for claims under Title VII, includes a claim for retaliation. See Ethnic Employees of the Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1415 & n.13 (D.C. Cir. 1985) (citing Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir. 1981)). In Porter, the Fifth Circuit explained that § 2000e-16 differs from §§ 2000e-3 and 2000e-4, which are narrowly drawn and prohibit only specific forms of discrimination, because § 2000e-16 is drafted broadly to prohibit "any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16; see Porter, 639 F.2d at 277-78. The court reasoned that "the reasonable conclusion, therefore, is that by drafting [§ 2000e-16] to prohibit 'any discrimination,' Congress intended to bar the federal government from engaging in all those forms of discrimination identified in [§§ 2000e-3 and 2000e-4], and others as well." Porter, 639 F.2d at 278; see also White v. Gen. Servs. Admin., 652 F.2d 913, 917 (9th Cir. 1981). Sections 633a and 2000e-16 use identical language in creating a cause of action for federal
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employees under the ADEA and Title VII, respectively, and thus should be interpreted consistently. Forman v. Small, 271 F.3d 285, 296-97 (D.C. Cir. 2001). Accordingly, the exceptions and defenses that apply to nonfederal age discrimination, such as observing the terms of a bona fide seniority system or benefit plan, or discrimination resulting from a “reasonable factor other than age” (see Section 623(f)), are not available to the federal government. Valaris v. Army & Air Force Exchange Service, 577 F. Supp. 282 (N.D. Cal. 1983). Age discrimination in the federal government is treated exactly like discrimination on the basis of race, sex, or other Title VII-protected groups. The courts have long recognized that discrimination can take two forms: disparate treatment, in which the plaintiffs are targeted because of their membership in a protected class, and disparate impact, in which the members of a protected class are disproportionately affected by a practice which, on its face, appears to be neutral and without discriminatory purpose. The seminal case on disparate impact is Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs, the defendant power company required applicants for employment in any department but Labor (which were the lowest-salary jobs) either to have a high school
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diploma or to pass an intelligence test for which the cut-off
score approximated that of high school graduates. Neither
qualification was shown to be particularly related to any
specific job. In North Carolina at that time, 34 percent of
whites had high school diplomas, compared to only 12 percent of
African Americans, and 58 percent of whites passed the
intelligence test as opposed to six percent of African
Americans. Finding that the tests or possession of a diploma
were not rationally related to the jobs for which they were
required, and that African Americans were disproportionately
affected by these tests, the Court found them barred by the
Civil Rights Act:
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.
. . . The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
401 U.S. at 431. The Court went on:
[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms
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that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability.
. . . More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.
Id. at 432. In Smith v. City of Jackson, 544 U.S. 228 (2005),
the Supreme Court made clear that employment practices with a
disparate impact upon older workers are prohibited by the ADEA.
The many cases on disparate impact describe the factors
that must be demonstrated to prevail in such a case. Anderson
v. Zubieta, 180 F.3d 329, 338-39 (D.C. Cir. 1999) provides a
clear exposition:
In a disparate impact case, a three-step, burden-shifting framework is also employed. As with disparate treatment, the plaintiff must first make out a prima facie case. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). This “may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group.” [International Bhd. of Teamsters v. United States, 431 U.S. 324, 349 (1970]. In the second step, the burden shifts to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2 (k)(1)(A)(i); see Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Finally, if the defendant demonstrates business necessity, plaintiffs must be given an opportunity to demonstrate that an alternative employment practice could meet the employer's legitimate needs without a similar discriminatory effect. See 42 U.S.C. §
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2000e-2(k)(1)(A)(ii); Albemarle Paper Co., 422 U.S. at 425.
On the same page, in footnote 12, the Court added that, “[f]or
the purposes of the disparate impact test, Title VII defines the
term ‘demonstrates’ as ‘meets the burdens of production and
persuasion.’ 42 U.S.C. § 2000e(m).“ Anderson, 180 F.3d at 339.
In this context, there are two important concepts to be
observed. The first is that, because this case is brought
pursuant to Section 633a, not Section 623, the only possible
defense is “business necessity,” not, as in private sector cases
brought under the latter section, a “reasonable factor other
than age.” Valaris v. Army & Air Force Exchange Service, supra,
577 F. Supp. at 286-88 and n. 1. The second is that “business
necessity” is a very high standard:
“Business necessity” is more than mere convenience to the employer.
[T]his doctrine of business necessity, which has arisen as an exception to the amenability of discriminatory practices, “connotes an irresistible demand.” The system in question must not only Foster safety and efficiency, but must be Essential to that goal. * * * In other words, there must be no acceptable alternative that will accomplish that goal “equally well with a lesser differential . . . impact.” (United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301, 308 (8th Cir. 1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 900, 34 L. Ed.2d 687 (1973).)
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Green v. Missouri Pacific R. Co., 523 F.2d 1290, 1298 (8th Cir. 1975). This is completely consistent with the categorical instruction in Section 633a that employment practices in the federal government “shall be made free from any discrimination based on age.”
It is absolutely clear that the mere fact that a nondiscriminatory alternative is more costly (or produces smaller savings) than the discriminatory practice does not fulfill the “business necessity” requirement. It is intuitively obvious that in every disparate impact case that involves compensation, continued discrimination will always be less expensive, sometimes significantly so, than equal treatment, yet courts do not permit the tainted practice to continue on that basis. In City of Los Angeles v. Manhart, 435 U.S. 702 (1978), the Supreme Court rejected an argument that women could be required to pay more into a pension fund than men because
there is a like difference in the cost of providing benefits for the respective classes. That argument might prevail if Title VII contained a cost-justification defense comparable to the affirmative defense available in a price discrimination suit. But neither Congress nor the courts have recognized such a defense under Title VII. Id. at 716-17 (footnotes omitted); accord, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 685 n. 26
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(1983); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1082 (D.C. Cir. 1984). Similarly, it is not a defense to a disparate impact under the ADEA to aver that the savings will be diminished if older employees are treated fairly.
A few examples suffice: In Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), the Agency’s requirement that a prospective employee have an additional year of law enforcement experience for GS-9 positions, versus GS-7 positions, unquestionably saved substantial salary expenses for the DEA but was considered a discriminatory impact by the Court. Similarly, in Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999), it was clear that the Panama Canal Commission saved money by not extending retention and recruitment incentives to black employees and those of Hispanic or Panamanian origin. The discriminatory practices were not allowed to continue merely because elimination of the disparate impact would be more expensive than not eliminating it. Similarly, in Valaris v. Army & Air Force Exchange Service, supra, the district court invalidated an employee benefit package that eliminated long-term disability benefits for employees aged 62 or older, although it was certainly less expensive not to purchase such benefits for older employees.
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C. Defendants’ Business Rationalizations Cannot Be Credited. Defendants offer three major rationalizations in the name of business necessity: 1) a wholly new history of Flight Service, described in their Motion, in which the FAA wanted to get out of the declining business of Flight Service, 2) a spurious distinction between different kinds of Air Traffic Controllers based on an ad hoc Reason Code analysis that served as a cover for discrimination, and 3) a disingenuous cost/benefit analysis that overstated savings, ignored clear technical and organizational hurdles, and served as a cover for firing older controllers while covertly retaining younger ones. 1. Defendants’ Self-serving “new history” of Flight
Service Cannot be Credited. In their Motion for Summary Judgment, Defendants have concocted a wholly novel defense based on the questionable premise that general aviation was in decline and demand for Flight Service so low that the FAA simply decided to “get out of the business” of providing Flight Service. Defendants do not explain how letting a multi-billion single-source contract constitutes “getting out of the business” of Flight Service, but perhaps this is because no one involved in the A-76 process
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articulated a need to “get out of the business” at the time. If anything, they were paying lip-service to improvement. The idea that the FAA wanted to get out of the business of Flight Service the way a leather manufacturer might want to get out of making buggy whips in order to manufacture flight suits is simply a defense lawyer’s post hoc rationalization, one that is particularly poignant in light of the fact that the FAA truly has wrecked Flight Service in its zeal to shed its older Controller workforce.
The FAA’s actual reasons articulated at the time were 1) compliance with the FAIR Act and the President’s Management Agenda and 2) cost savings. On June 19, 2002, Chris Bertram, then Chief Financial Officer of the FAA, announced by memorandum to the then-Acting Administrator, Jane Garvey, that he had determined to hold an A-76 competition to determine if the Flight Service could be more effectively provided by a private contractor than by the federal government. Ex. 8, Dkt. # 256-12. (In fact, the decision to compete the Flight Service had been made in late 2001. Jackson-Brame Dep. at 94-96.) The ostensible reasons for this competition were the need to reduce the cost of Flight Service, allegedly exacerbated by an aging workforce
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and aging facilities and equipment, and the need to comply with the President’s Management Agenda (“PMA”). The Office of Management and Budget (“OMB”) interpreted the PMA to require each federal Agency to compete or directly convert to private contract at least 15 percent of its “commercial” activities (as defined in the Agency’s inventory for the Federal Activities Inventory Report Act – “FAIR Act”) by 2003 and eventually a total of 50 percent of such activities. OMB Competitive Sourcing Plan, Dkt. # 256-11, at p. 7 of 14, Ex. 11; Dkt. # 256-12, Ex. 8. Even among “commercial” activities, however, not all functions of an Agency are subject to competition. The OMB has provided a list of “Reason Codes” (Ex. 11) that permit some activities to be classified as “core” missions of the Agency and not subject to outsourcing, Reason Code “A.” Activities coded as “B” are suitable for competition under Circular A-76. At the FAA, prior to 2002, Reason Codes were generally assigned by the offices that reported their statistics for FAIR Act purposes. As a result, both Flight Service Controllers and other Air Traffic Controllers (Tower and En Route) were inconsistently coded, sometimes A and sometimes B. Hennigan I Dep. at 60, 7073; Page Dep. at 44. In 2002, however, after the decision to
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subject the Flight Service to competition, the Flight Service Controllers were all assigned Reason Code B; the Tower and En Route Controllers were all assigned Reason Code A. Hennigan I Dep. at 80; Page Dep. at 44, 74-75; Mineta Memorandum, Dkt. 25629, P01267-P01271.
Because no private workforce existed for the performance of Flight Service, the bid solicitation (called a Screening Information Request, or SIR) was designed to provide a workforce to the successful bidder. Bidders were required to offer jobs to existing Flight Service Controllers before hiring from the general public (see SIR, at 5, Ex. 15) and bidders were told that the FAA would retain in other positions only a minimal number of the approximately 2,3009 Flight Service Controllers. See Sturm Dep. at 15-21, Ex. 16. The existing employees were also told that options for other jobs in the Agency would be limited because of the need to provide a workforce to the winning bidder. See Briefer, Ex. 18, at P01288.
There were five competitors for the contract, including the winning bidder, Lockheed, and the existing FAA Controllers,
9 As of October 3, 2005, the effective date of the RIF, 2,300 Controllers were released from Flight Service. Ex. 5 to Williams Dep.
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known as the MEO (an abbreviation for “Most Efficient Organization”). Of the bidders, only the MEO had an existing workforce. Lockheed won the award, despite not being the lowest bidder, and on July 19, 2005 it was announced that the entire work force would be terminated in a reduction-in-force to take effect on the first day of the Lockheed contract, October 3, 2005. See RIF Notice, Ex. 19. Of the 2,300 Controllers subject to the RIF, 308 found other Air Traffic Controller (“ATC”)10 jobs in the FAA, 159 found non-ATC jobs in the FAA or elsewhere, 127 retired voluntarily,11 and the remainder were either involuntarily retired – mostly with reduced benefits because they had not attained the necessary age for a full ATC retirement – or simply lost their federal jobs. Of those who are Plaintiffs in this case and thus over 40, the vast majority of those who were subject to the RIF were within a short period
10 Because Air Traffic Controllers, along with certain law enforcement positions, are subject to a mandatory retirement age, they pay into the federal retirement system at an increased rate and in return receive an augmented retirement benefit that allows them to retire at an earlier age than employees not so affected.
11 This figure includes three mandatory (age 56) retirements, 13 disability retirements, 11 resignations, two terminations not resulting from the contract award, and two deaths.
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of attaining the necessary combination of age and years of service for an ATC retirement.12 Of course, with the exception
of those who voluntarily retired, even those who received
retirements are deprived of the opportunity to have a larger
retirement payment throughout their lives based on a larger
“high three” that would have been attained had they continued
to work for the federal government.
Approximately 1,900 Controllers initially went to work for
Lockheed. See Sturm Dep. at 20-21, Ex. 16. However, as Lockheed
has closed legacy sites and reduced the number of Flight Service
Controllers, hundreds of these Controllers have also lost their
Lockheed jobs. Even those who retained their jobs (except those
who were eligible for some form of retirement) have no
retirement benefits (other than a modest contribution to a 401-K
fund), have had no cost-of-living increases, and, once they
12 An Air Traffic Controller can retire with full benefits, based on his or her highest three years of salary, at age 50 with 20 years of ATC service or at any age with 25 years of ATC service. Those who have at least 20 years of service but are forced out by elimination of their jobs, as in this case, qualify for a discontinued service retirement (“DSR”), in which their retirement benefit is permanently reduced for each year they were short of 20 years. Employees who had attained 30 combined ATC and non-ATC years of service were entitled to a non-ATC retirement, but they are disadvantaged by having paid into the system a larger employee contribution than similarly retired persons who have never been Air Traffic Controllers.
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leave Lockheed, will have no health benefits. The calculations
by Plaintiffs’ damages expert, Dr. Joseph Tryon, indicate that
the combined loss of income and benefits totals thousands of
dollars for each Plaintiff, and in many cases, hundreds of
thousands of dollars. See Tryon Report, Ex. 6.
In this case, the facially neutral practice at issue is the
A-76 process to which the Flight Service was subjected.
Although the fact as to whether the Flight Service was targeted
because it contained disproportionately older employees (the “aging workforce”) is disputed,13 Defendants now assert post hoc
that the motivation for selecting the Flight Service for the A-
76 process was two-fold:
1) Expense. Defendants assert that the Flight Service cost over $500 million per year to maintain,14 that many of its
13 As explained elsewhere, Defendants’ officials gave at least two PowerPoint presentations touting the advantages of the A-76 that listed as a primary reason for the competition the existence of an “aging workforce” in the Flight Service. See, e.g., D007311-D007319; D007682-D007698, Ex. 20. Subsequently, perhaps because of the blatant discrimination inherent in this characterization, the phrase “aging workforce” was replaced with “retirement-eligible workforce” (see D007189-D007199, Ex. 20), a manifestly untrue statement, since only 356 of the 2,300 Flight Service Controllers qualified for the full ATC retirement toward which they had been working. Ex. 5 to Williams Dep.
14 In his June 18, 2008, deposition (“Hennigan II Dep.”), John Hennigan, Deputy Chief Financial Officer for the FAA,
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components were already commercially available elsewhere and
thus no longer needed to be provided by the government, and that
the existence of 58 facilities in the lower 48 states was
unnecessary as well as expensive. The FAA further asserts that
OMB refused to authorize the expenditures necessary to fully
deploy its essential new computer system, OASIS, unless the
Flight Service was consolidated to significantly fewer stations.
2) The President’s Management Agenda. Defendants assert
that the PMA required them to compete 15 percent of their
commercial functions, that only six or seven functional groups
that were coded B (“non-core,” suitable for competition)
contained enough full-time equivalent employees to satisfy the
15-percent requirement, and that Flight Service was the most
acknowledged that, except for the cost of personnel compensation and benefits (“PC&B”), which totaled about $300 to $500 million annually, the Agency had no good idea of the true cost of maintaining the service. Hennigan II Dep. at 38-39, 56-59. Moreover, as demonstrated elsewhere in this Memorandum, the maintenance cost of facilities and equipment has been significantly exaggerated by the Defendants. Finally, it is evident that most of the savings could have been realized through a consolidation plan that did not involve an A-76; such plans were proposed by Coopers & Lybrand, the FAA’s Flight Architecture Working Group, the Office of the Inspector General, and NAATS (“National Association of Air Traffic Specialists”), the Flight Service Controllers’ Union, which presented its proposal in 2003. See NAATS proposal, Ex. 42.
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logical of these based on the expense factors described above.15
Defendants – and particularly Defendants’ expert, Dr.
Siskin, – insist that the disparate impact created by the
contracting out of the Flight Service was an inevitable and
unavoidable result of the fact that Tower and En Route
Controllers were not subject to competition, because they had
been assigned Reason Code “A” (“exempt from the cost comparison
requirements” of Circular A-76; Ex. 11), whereas Flight Service
Controllers were assigned Reason Code “B” (“subject to the cost
comparison . . . requirements”;), and thus one of the few large
groups of employees whose functions were subject to competition.
See Siskin Report, Ex. 1. However, the evidence shows that 1)
15 Most of these facts are disputed as well. Although OMB did set a 15 percent target for the end of 2003, it also set an eventual target of 50 percent of all commercial activities, yet FAA never again designated any function for an A-76 competition or direct conversion. Because there were no standards for what activities were “core” and what were “non-core,” the assertion that only seven non-core groups contained enough employees is highly suspect, as is the decision that a highly specialized workforce, some of whose major functions have never been performed commercially in the United States, is suitable for outsourcing. Additionally, although Defendants argue that it is simpler to outsource one function of over 2,300 employees rather than two or three functions containing fewer employees, the size and complexity of the Flight Service A-76 is acknowledged to be sui generis and obviously greater than a larger number of competitions of such traditionally-outsourced functions as Human Resources.
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the FAA’s decision to subject the Flight Service to an A-76 competition (in 2001) was made before the Reason Codes of the different types of Air Traffic Controllers diverged (in 2002); and 2) there were no principled criteria for the assignment of Reason Codes; rather, the designations were without rational basis, and were assigned solely for the purpose of justifying the decisions to compete or not to compete the different types of Air Traffic Controllers, rather than being the basis of those decisions.
The Federal Activities Inventory Reform Act (“FAIR Act”), 31 U.S.C. § 501 note, requires agencies annually to report which of their functions are “inherently governmental” and which are “commercial” in nature. The Office of Management and Budget has further refined the Act to require that agencies assign “Reason Codes” to their activities that are commercial, to indicate which activities are subject to cost comparisons with private contracting pursuant to Circular A-76 and whether such comparisons have been done. Ex. 11. OMB provides the following definitions of Reason Codes A and B:
A - Indicates that the function is performed by Federal employees and is specifically exempt by the agency from the cost comparison requirements of the Circular and this Supplement.
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This Reason Code is designed to permit the Agency Head to identify specific commercial activities as those that he/she does not believe should be subjected to privatization, outsourcing or competition. Certainly, these are core mission activities that are commercial in nature. Many core activities may however, be achieved through contract support and may also be found in Reason Code "B" or "C." Functions assigned Reason Code "A" are commercial functions that the Agency Head has determined must remain in-house.
B - Indicates that the activity is performed by Federal employees and is subject to the cost comparison or direct conversion requirements of the Circular and this Supplement.
This Reason Code should be applied to any Function or Activity where the decision as to who should perform the work is a quality and cost based decision and the agency would expect that this decision would be based upon the results of a direct conversion competition (when authorized), or a cost comparison, conducted in accordance with OMB Circular A-76 and its Supplemental Handbook.
Ex. 11.
Ronald Page, who worked in the finance office of FAA, was
the project manager for OMB circular A-76 and implementing A-
76's requirements within the FAA from 1999 until his retirement
in 2004. Page Dep. at 16-17. He explained the process of
compliance with FAIR Act requirements as follows:
Every year in June the Agency was required to submit an updated,
revised FAIR Act inventory to the Department of Transportation.
Preparation began in January. Page Dep. at 24. Page would send
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the requirements for data to all of the major offices within FAA and ask them to submit data to him about their organizations. The data they submitted was the number of full-time equivalent positions that performed each activity in that office. The responding offices made the determination of whether an activity was commercial or inherently governmental, and what Reason Code should be assigned to each activity. Id. at 25-26; Hennigan Dep. at 59-60. The information was then consolidated into an FAAwide database. Page Dep. at 27. However, because each office made its own determination of Reason Codes, the result was substantial inconsistency in the assignment of Reason Codes to the same functions in different regions, some being coded A in one region and B in another. Page Dep. at 30; Hennigan Dep. at 59-60, 71-72.
On December 7, 2000, the President issued Executive Order 13180, which ordered the reorganization of the FAA to create the Air Traffic Organization, and which explicitly described all Air Traffic Control Functions as “inherently governmental.” Ex. 21. That all Air Traffic Control functions should be viewed the same way is inherent in the statutory definition of Air Traffic Controllers in 5 U.S.C. § 2109(1):
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(1) “air traffic controller” or “controller” means a civilian employee of the Department of Transportation or the Department of Defense who, in an air traffic control facility or flight service station facility—
(A) is actively engaged— (i) in the separation and control of air traffic; or (ii) in providing preflight, inflight, or airport advisory service to aircraft operators; or
(B) is the immediate supervisor of any employee described in subparagraph (A) Clearly, Congressional intent was that all Controllers are comparable. Given the existence of the Executive Order, one would anticipate that the 2001 FAIR Act inventory would describe all Air Traffic Controllers as “inherently governmental.” That did not occur, however; instead, the 2001 inventory coded all Air Traffic Controllers (Flight Service as well as Tower and En Route) as commercial, Reason Code A. Hennigan Dep. at 74-75. Despite both the Executive Order and the FAIR Act designation of Flight Service as not subject to A-76 cost comparisons, the decision was made in late 2001 to subject the Flight Service to an A-76 competition. Marilyn Jackson-Brame, who had been made Flight Service Division Manager (Jackson-Brame
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Dep. at 33), testified that she was called to a meeting in the fall of 2001 and was told that “Flight Service was a strong likelihood for competition” and “that it was a decision that was being made because of the President's Management Agenda.” Id. at 64-65.16 She was instructed to become well-versed in A-76 procedures. Id. at 65.
The next FAIR Act inventory, for 2002 – after the decision had been made to compete the Flight Service – designated Flight Service Controllers as Reason Code B and all other Controllers as Reason Code A. Hennigan Dep. at 80, Ex. 12. At this point, however, there remained certain Flight Service functions that were designated as “inherently governmental,” those associated with the issuance of NOTAM-Ds. Ex. 22, Grant-Thornton Report, P00881. NOTAMs (“Notices to Airmen”) are advisories to pilots concerning flight restrictions (for security reasons), major hazards (such as forest fires), or “outages” (unavailability of facilities) in the National Airspace. Id. at P00877-P00800.17
16 Ms. Jackson-Brame initially identified the meeting as having taken place in late 2002, but corrected herself when it was called to her attention that the Grant-Thornton “feasibility study” took place in 2002, because the meeting took place before Grant-Thornton became involved in the A-76. Id. at 95-96.
17 NOTAM-Ls are advisories that are purely local in nature, such as a deer on a runway. Jackson-Brame Dep. at 37-38.
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The collection and dissemination of this data is considered to have national security implications, and the activity was considered through mid-1993 at least to be inherently governmental. Curry Dep. At 15-17, 20-23; Grant-Thornton Report, at P00881; Memorandum from Associate Administrator for Air Traffic Services to Associate Administrator for Financial Services, Apr. 9, 2003, P00913-914. During the time the 2002 inventory was being prepared, Executive Order 13180 was amended to remove the designation of Air Traffic Control functions as inherently governmental. The purpose of the amendment to the Executive Order was to avoid requiring the FAA to discontinue its contract tower program, the program under which approximately 200 control towers in smaller markets are operated by private contractors with privately employed controllers.
There is no clear-cut explanation of who made the decision to designate Flight Service Controllers as Reason Code B while retaining Reason Code A for other Controllers. John Hennigan, then the FAA’s Deputy Chief Financial Officer, stated that the decision was made jointly by the CFO (“Chief Financial Officer”), Deputy CFO, and the Air Traffic Organization, but was then sent to the Administrator and the deputies. Hennigan Dep.
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at 100. Christopher (“Chris”) Bertram, at that time the Chief Financial Officer, testified that he did not remember that the Reason Code for Flight Service had been changed or having any involvement in the assignment of a Reason Code to Flight Service. Bertram Dep. at 96-98. Steven Brown, who was the Deputy Associate Administrator for Air Traffic Services, stated that he had no personal involvement in the assignment of a Reason Code to Flight Services. Brown Dep. at 27-28. Ronald Page, who – as noted above – was in charge of collecting the data for the FAIR Act inventory, testified that when the draft 2002 inventory left the finance office, the Flight Service was assigned Reason Code A, but that it was assigned Reason Code B in the final version of the inventory. Page Dep. at 74-75. He did not know why. Id.
Nor does there exist any clear and consistent statement as to why the Flight Service was re-classified as Reason Code B. John Hennigan, Ronald Page, and Steven Brown all agree that no documents exist to explain the change.18 Hennigan Dep. at 100-01; Page Dep. at 48; Brown Dep. at 31.
18 Mr. Hennigan did prepare a draft of the document that designated Tower and En Route Controllers as Reason Code A. Page Dep. at 46.
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Mr. Hennigan attempted to justify the Reason Code, but his explanations are inconsistent with other known facts. One reason he gave was the recommendations of the Office of the Inspector General and of Coopers & Lybrand that the Flight Service be consolidated, but neither of the recommendations recommended that the service be performed by non-governmental entities and Mr. Hennigan gave no reason that necessarily connected consolidation with an A-76 study. Compare Hennigan Dep. at 80-82 with Coopers & Lybrand Report (Ex. 26); 2001 Report of Inspector General at 4 (Ex. 27). Mr. Hennigan also stated that many of the same services provided by Flight Services were already being provided by DUATS and other private services. Hennigan Dep. at 82-83. However, Mr. Hennigan did not appear to realize that Flight Plans filed through DUATS are forwarded to the Flight Service (compare Hennigan Dep. at 86 with Jackson-Brame Dep. at 24) and could not name any other specific functions that were performed in the private sector. Hennigan Dep. at 85-86. In fact, from the very beginning of the A-76 process, the FAA’s Office of Competitive Sourcing made it clear that a substantial part of the existing workforce would have to be employed by whatever entity won the competition, precisely because there was no entity providing the
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Flight Service functions to most of general aviation. As Joann Kansier, the head of the Office of Competitive Sourcing testified,
you couldn't just hire people off the street to do this job, so whoever [won] had to be able to hire the people that were actually working in the Flight Service Stations. . . . This was a skilled and certified position, so the people who were doing it had to remain doing it. Kansier Dep. at 118; see also Screening Information Request (“SIR”) at 5, Ex. 15; Briefer, at 4, P01288, Ex. 18. By necessary logical implication, if there was no skilled workforce available to perform the Flight Service functions, that means that many of these functions were not in fact being performed by the private sector as claimed by Mr. Hennigan. Steven Brown, who headed Air Traffic Services, also gave unconvincing and self-contradictory explanations of why Reason Code B was more appropriate for Flight Service Controllers than for Tower and En Route Controllers. Mr. Brown defined a “core” service of the FAA as one that's critical to the safety and the continuation of air navigation in the United States. Without air navigation, there is certainly an impediment to commerce and the efficient delivery of people and goods. So one of the core missions of FAA is to provide that safe air navigation service both for
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supporting the national defense as well as supporting the national economy.
Brown Dep. at 37. In his Memorandum concerning the 2003 NAATS challenge to the FAIR Act inventory,19 P00913, supra, Mr. Brown
wrote: “The functions performed by FAA specialists support the
FAA’s mission of aviation and security,” and noted that functions relating to NOTAM-Ds are inherently governmental.20 Yet he stated
that Flight Service is not a “core” mission of the FAA because
Flight Service Controllers do not separate aircraft, which is the
function of Tower and En Route Controllers. Brown Dep. at 47-48.
He acknowledged, however, that at some towers in the United
States (as well as in other countries), that function is already
provided by private contractors. Id. at 46-47. Brown stated that
19 The NAATS challenge took issue with the designation of Flight Service as “commercial” rather than “inherently governmental” and did not deal with Reason Codes at all. While there are sound arguments to be made that Air Traffic Control services are inherently governmental, the purpose of this issue is whether – regardless of whether Air Traffic Control is commercial or inherently government – there is any rational justification for designating one type of Air Traffic Controller as suitable for A-76 competition while recognizing that most Air Traffic Control functions are not suitable for A-76 competition.
20 Although many witnesses purported not to know that NOTAM-D functions are now performed by Lockheed, despite widespread agreement that they are inherently governmental, e.g., Brown Dep. at 76, that is the case. E.g., Reimann Dep. at 137-38.
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“ensuring the separation of aircraft makes the system available for commerce as well as ensuring the facilities and safe navigation for national defense” was a “core” function, and acknowledged that flight planning, advisory, and search and rescue21 also made the system available for commerce and safe navigation, but stated that these were not core because they did not involve the separation of aircraft. Id. at 49. Brown argued that large companies that utilize general aviation do not utilize Flight Service (Id. at 52-43), although that is contradicted by the testimony of working Flight Service Controllers (e.g., Reimann Dep. at 78-79, 115-16, 174-75), and essentially argued that safety and efficiency are not important to private pilots because they have no published schedules. Brown Dep. at 53-56. Eventually, he acknowledged that the importance of efficiency to general aviation was something he could only judge from his personal experience as a pilot. Id. at 56.
In this context, it is important to note that Ronald Page testified that, in the performance of his duties, he utilized the draft 2002 FAIR Act Inventory to compile a list of eleven commercial activities of the FAA that were available to be
21Search and rescue requires local and state law enforcement and the U.S. Air Force to look for missing planes.
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considered for A-76 competition. Page Dep. at 22-23 and D003770D03773; see also Hennigan I Dep. at 55. The list does not include the Flight Service.
Finally, it was only after the completion of the 2002 inventory and long after the decision to compete the Flight Service that Secretary Mineta issued his formal determination that Tower and En Route services are a core capability that must be exempt from A-76 procedures. P01267-P01271.
Accordingly, there was nothing inevitable or even particularly logical about the designation of Flight Service as Reason Code B and the remaining Air Traffic Controllers as Reason Code A. It is clear that the Reason Code for Flight Service was changed in 2002 to justify the 2001 decision to compete the Service. III. Plaintiffs Are Entitled to a Trial to Prove that They Were
Subjected to Illegal Disparate Treatment Based on Age. In order to obtain summary judgment, the moving party must show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine what facts are “material,” the Court must look to
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the substantive law on which each count or claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists if the resolution of that issue could establish an element of a claim or defense and, therefore affect the outcome of the action. Celotex, supra, 477 U.S. at 322; Anderson, supra, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Id.; accord, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). Morever, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the district court should view summary judgment motions in such cases with special caution. Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997) (aff’d en banc, 156 F.3d 1284 (D.C. Cir. 1998)); Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
Disparate treatment claims are analyzed under the three-part framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell-Douglas framework, the complainant must first establish a prima facie case of prohibited discrimination. See McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Once he has done so, the
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burden then shifts to the employer to articulate legitimate, nondiscriminatory reasons for the challenged employment decision. See id. Should the employer succeed in presenting such reasons, the burden then shifts back to the complainant, who then has an opportunity to discredit the employer's explanation. See id. at 804-05, 93 S.Ct. 1817.
Aka v. Washington Hosp. Ctr., supra, 156 F.3d at 1288.
The District of Columbia Circuit has clearly established
what is required for a prima facie case of discrimination:
[A] plaintiff makes out a prima facie case of disparate-treatment discrimination “by establishing that: ‘(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.’” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). One method by which a plaintiff can satisfy the third prong of this test is by demonstrating that she was treated differently from similarly situated employees who are not part of the protected class. See Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.1999).
George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005).
At the summary judgment stage of a discrimination case, the
Judge’s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Credibility
determinations, weighing the evidence, and drawing legitimate
inferences from the facts are functions reserved to the trier of
fact, inappropriate at the summary judgment stage. Id. at 410,
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413. To establish a prima facie case, a plaintiff needs to show merely that the unfavorable action gives rise to an inference of discrimination, not that there is undisputed proof of such discrimination. Summary judgment will be affirmed only where no factfinder, hearing the evidence the plaintiff proposes to present, could find in plaintiff’s favor. Mastro v. Potomac Electric Power Co., 447 F.3d 843, 855 (D.C. Cir. 2006), cert. denied, 549 U.S. ___ (Jan. 16, 2007); Salazar v. Washington Metro. Transit Auth., 401 F.3d 504, 505, 507 (D.C. Cir. 2005); Aka v. Washington Hosp. Center, supra, 156 F.3d at 1289-90.
Especially where the disparate treatment is alleged by group of plaintiffs, the Supreme Court has long recognized that statistical proof can establish a prima facie case of discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 (1977). The Teamsters Court additionally recognized the force of anecdotal evidence in conjunction with statistics. Id.
In this case, Plaintiffs’ prima facie case is virtually undisputed. Plaintiffs are a protected class (older than 40 years of age), and they suffered an adverse action (termination of their federal employment). Significantly, however, both
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Plaintiffs’ and Defendants’ expert witnesses agree that the statistical evidence gives rise to an inference of discrimination, in that – as discussed above at pages 5 to 22 in great detail – it demonstrates conclusively that the A-76 and concomitant RIF impacted older workers to a far greater extent than younger workers, resulting in the termination of older workers far out of proportion to their numbers. In addition, there is significant non-statistical evidence that supports the inference that the disparate impact is not an accidental byproduct of legitimate managerial decisions, but rather an intentional course of action by Agency officials. The burden of a prima facie case having been met, it is the obligation of Defendants to provide a non-discriminatory explanation.
Although Defendants have put forth what they contend to be legitimate non-discriminatory reasons for the disproportionate termination of the older Controller workforce, the facts to which they point in support of those reasons are subject to significant dispute. There are also a number of facts, many incontrovertible, to indicate that the proffered non-discriminatory reasons are pretext, and that the RIF was the result of disparate treatment because of Plaintiffs’ age.
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A. The Facts Show Disparate Treatment. 1. The statistical evidence. As explained above at pages 5 and following, Plaintiffs’ expert witness, Dr. Belman, compared ages of the population of the Flight Service Controllers to those of several different populations with the FAA, and concluded that, to a statistically significant degree, the Flight Service workforce was older than the comparator populations, and that the difference cannot be explained by random selection. See Belman Report., passim. Further, Dr. Belman compared the ages of those Flight Service Controllers who were rehired by the FAA to those who were not rehired, and discovered that those rehired, too, were younger to a statistically significant degree. Belman Report. at 5-6, 14.22 Strikingly, although Defendants’ expert, Dr. Siskin, does not agree that the statistics are indicative of discrimination, he does agree that there is a very strong statistical indicator of a disparate impact on older workers. See Siskin Report. at 3, 19; Siskin Dep.
22 As has already been noted, the issue with regard to the retained/rehired workers is not whether Plaintiffs have made a claim of discriminatory refusal to hire. Rather, the point is that firing all workers and rehiring exclusively younger workers is a slightly more sophisticated form of ridding oneself of the older workers, and is equally unlawful.
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Accordingly, the statistical evidence in this case raises a strong inference that age discrimination occurred.
2. The Non-Statistical Evidence. Were it not for the fact that the rehired Controllers were younger than the other Controllers, it might be said that the statistical evidence could equally evidence of disparate impact on or disparate treatment of the older workers. However, the non-statistical evidence in this case provides a powerful implication that the discrimination against the older Controller workforce was intentional.
a. The “Aging Workforce” and the “Retirement-Eligible Workforce”
Among the most striking evidence of intentional discrimination on the part of Defendants are the presentations they gave in promoting the A-76 process for Flight Service. In two separate slide presentations, one on January 12, 2003, (P01128ff., at P01155) and one on June 25, 2003 (P01176ff., at P01179), prominent in the list of reasons for the A-76 is Flight Service’s “aging workforce.” A subsequent slide presentation and a FAA web page used the more diplomatic term, “retirement eligible workforce” to describe one of the reasons for the A-76, P04428, P00003. FAA Administrator Marion Blakey, who must be
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presumed to speak for the Agency, in the prepared text of a speech, also listed the “retirement eligible” workforce as a reason for the A-76, P01166, and in a different presentation described the alleged retirement eligibility of 40 percent of the Flight Service workforce23 as a “dilemma.”24 P00633.
In their summary judgment brief, Defendants attempt to flee this blatant display of age-ism by contending that the “aging workforce” was not a reason of the decision-makers, but rather a creation of Joann Kansier, the head of the Office of Competitive Sourcing. However, it is simply not believable that Joann Kansier, who had no intimate acquaintance with the Flight Service prior to being named director of the Office of Competitive Sourcing, would have decided on her own initiative that the aging workforce was a primary reason for the competition. She was not the first FAA employee to use the term “aging workforce.” The first slide presentation in which it appears was made before she
23 In fact, as the chart prepared by George Williams demonstrates, far less than 40 percent (i.e., 15 percent) of the Flight Service Controllers were eligible for the full ATC retirement for which they had been working. Ex. 5 to Williams Dep.
24 By contrast, the fact that a large number of Tower and En Route Controllers are nearing retirement age was cited by Secretary Mineta as a reason not to subject those services to an A-76 study.
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joined the A-76 effort. Jack Nimmo, formerly a manager at the Jonesboro, Arkansas, Flight Service Station who worked with Ron Page and Marilyn Jackson-Brame, testified in deposition that in 2001 he was detailed to a group of FAA employees developing a feasibility study of an A-76 competition of the Flight Service. Nimmo Dep. at 39. Asked about the term, “aging workforce,” Mr. Nimmo said, “when I was drawn into the working group as a subject matter expert, this terminology was being used.” Id. at 120. The only possible conclusion is that it was used by the decisionmakers to explain to Mr. Nimmo and Ms. Kansier why they had been called upon to assist in competing the Flight Service.
Perhaps more importantly, following award of the contract to Lockheed, Administrator Blakey herself made it plain to NAATS officials that she considered the retirement eligible controllers to be a liability. Union President Kathleen Breen attended a meeting in the course of which Ms. Breen asked Ms. Blakey to permit the Flight Service controllers to be hired for other jobs within FAA. Ms. Blakey responded: “Kate, it wouldn't be in the best interest of the taxpayers to give these jobs to them with their current age and they're ready for retirement.”
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Breen Dep. at 101; see also Malon Dep. at 130-32 (corroborating the description of the conversation).
b. Handicapping of the MEO. Another indicator of the Agency’s intention to rid itself of the older workforce is in the treatment of the MEO during the solicitation process and in the evaluation of its bid. Although Joann Kansier touted the existence of a “level playing field,” it was anything but. Although a consultant from Human Resources was supposedly assigned to the MEO team to assist them in preparing a transition package, in fact they had very little assistance in that regard, which resulted in the transition package being downgraded by the technical evaluators. Dodson Dep. at 48-50. Similarly, during the period that the proposal was being developed, the FAA was delaying the bargaining with the Union on RIF procedures and refusing to agree on procedures to rehire surplused Flight Service Controllers in other vacant positions to minimize job losses. This conduct resulted in the Union’s existence being deemed a risk in the evaluation of the MEO proposal, despite that fact that, by law, the Union could not
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strike even if the bargaining was unsuccessful. Malon Dep. at 65, 71-72, 74-76; P05667-P05668; see also Dodson Dep. at 52-53.
The evaluation of the MEO’s proposed equipment components is similarly suspect.25 Lockheed’s untested FS-21 system was rated more highly than the OASIS system already in successful use in some Flight Service Stations. Dodson Dep. at 87-88, 98; Grace Dep. at 143-44. The voice switch and automated broadcast components proposed by the MEO were deemed risks, yet after contract award the FAA permitted Lockheed to substitute those very same components when the ones approved by the technical evaluation team failed in actual use. Dodson Dep. at 89-90; Grace Dep. at 137, 139.
Finally, the Union members of the MEO, the members who had actual recent experience in Flight Service Stations, were not permitted to speak at the “orals” in which the bidders explained their proposals. The result was that the technical evaluation
25 It is anticipated that Defendants will object that the issue of the fairness of the technical evaluation has already been disposed of in the bid protest proceeding that took place in 2005. However, because the contract performance had not yet begun, information about the dramatic under-performance of the Lockheed components was not available to the administrative law judge who presided over the bid protest. Moreover, the administrative law judge was not asked to consider the possibility of age discrimination.
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team perceived important gaps in the MEO proposal that contributed to their recommendation of Lockheed . Dodson Dep. at 43-48; Jackson-Brame Dep. at 208-09.
The unfair treatment of the MEO in the solicitation and evaluation process strongly implies an intention on the part of FAA management not to permit the older workforce to remain employed by the Agency.
c. FAA’s Refusal to Retain or Rehire Most Employees Further evidence of discrimination is evident in the obstacles placed in the paths of older Controllers who attempted to remain in the FAA or be rehired by it. On the one hand, employees were promised transition assistance and preferred consideration for FAA jobs. On the other hand, the Office of Competitive Sourcing made it clear that internal transfers and rehiring would be limited because the contract could not be subjected to competition unless the winning bidder could be guaranteed the same workforce that had performed the Flight Service function as government employees. Kansier Dep. at 118; Briefer, October 2003, at P01288. At least one bidder, Lockheed , was promised that the FAA would only retain a very small number of the Flight Service Controllers. Sturm Dep. at 18-19.
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The main way in which the FAA guaranteed that the majority of the Flight Service Controllers would go to work for Lockheed was in the way that the RIF was implemented. Normally, federal employees who are threatened with job loss are entitled to “bump and retreat” rights in their “competitive area,” usually the geographic region, a procedure in which those with greater seniority (usually older workers) can fill vacancies or displace workers with less seniority. See generally 5 C.F.R. Part 351; “Summary of Reduction in Force Under OPM's Regulations,” at http://www.opm.gov/rif/general/rifguide.asp (last visited June 15, 2009). However, in the case of the Flight Service, the FAA defined the “competitive area” as each individual Flight Service Station. As the federal Flight Service Stations were all being turned over to Lockheed , there were no positions whatever in the “competitive areas” to which the Flight Service Controllers could fill, bump, or retreat.
In the event, the promised consideration for FAA jobs was extremely minimal. As Dr. Belman’s report demonstrates, most of those who were rehired were younger than 40. Scott Malon, the Union negotiator for the RIF Memorandum of Understanding, was led to believe that Flight Service Controllers would be considered
62

Case 1:05-cv-00654-RWR Document 261 Filed 06/15/09 Page 63 of 73

“well qualified” for vacancies in the FAA. Malon Deposition. In

fact, however, the FAA has given preference to new hires “off the

street,” apparently finding them more qualified that Flight

Service Controllers with more than a decade of aviation

experience.

Charlene Argo testified in deposition that

applications from former Flight Service Controllers, even those

with Tower and En Route experience prior to age are not accepted

for most vacancy announcements. Argo Dep.

The FAA justifies the absence of placements within the

Agency by asserting that the A-76 could not be accomplished

unless the successful bidder was guaranteed a workforce. As

Joann Kansier, the head of the Office of Competitive Sourcing

testified,

you couldn't just hire people off the street to do this job, so whoever [won] had to be able to hire the people that were actually working in the Flight Service Stations. . . . This was a skilled and certified position, so the people who were doing it had to remain doing it.

Kansier Dep. at 118; see also Briefer, October 2003, at P01288.

This statement, however, makes no sense in terms of the

President’s Management Agenda, which is purported to be one of

the main reasons for competing the Flight Service.

63

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Defendants argue vigorously that Flight Service was available for A-76 competition because, under the FAIR Act, it was a “commercial” activity and not a “core” mission of the Agency. However, “commercial” in the FAIR Act context is a term of art. It does not mean that a function is actually available in the marketplace, only that the function, because it does not make policy or obligate the United States, need not be performed exclusively by government employees. Circular A-76, at p. A-2 (http://www.whitehouse.gov/omb/circulars/a076/a76_rev2003.pdf, last visited June 15, 2009). The President’s Management Agenda (“PMA”), on the other hand, is quite clear about the sorts of activities that are actually intended to be subjected to A-76 competitions or conversions to private contractors: “tasks that are readily available in the commercial marketplace – tasks like data collection, administrative support, and payroll services.” President’s Management Agenda at 17; see also Belman Report at 6. And indeed, the FAA commissioned a feasibility study from GrantThornton which purported to show that the functions of Flight Service are readily available in the commercial marketplace.
Defendants cannot have it both ways. Either the functions performed by Flight Service were “readily available in the
64

Case 1:05-cv-00654-RWR Document 261 Filed 06/15/09 Page 65 of 73
commercial marketplace” – in which case there was no need to insure that the same workers who performed this function for the government were available to the winning bidder – or these were functions not available in the commercial marketplace, in which case they were inappropriate for outsourcing, whether or not they were inherently governmental. Having accepted the conclusions of the feasibility report which it ordered, which stated that there were companies ready and willing to perform the Flight Service functions, the FAA had no legitimate need to force out its Flight Service workforce so as to guarantee a skilled workforce to the winning bidder.
One of two conclusions is mandated by this set of facts. One possibility is that forcing out the older workers was entirely unnecessary because the functions they performed were available for offer in the commercial marketplace. If that is the case, the only explanation for forcing out the older workers is age discrimination. The second possibility is that the Agency knew that the Flight Service functions were not commercially available, and that the only way to accomplish an A-76 of a commercially unavailable function was to sacrifice the well-being of the older workers – to create a situation in which the Flight
65

Case 1:05-cv-00654-RWR Document 261 Filed 06/15/09 Page 66 of 73
Service Controllers, because they are specialized and older and
therefore have fewer options, must go to work for a contractor
that would otherwise be unable to offer the service.26 Either
possibility is illegitimate age discrimination.27
B. Defendants’ Proffered Legitimate Non-Discriminatory Rationales Are Unconvincing.
Defendants allege two non-discriminatory rationales for the
selection of Flight Service for competition, the cost of
continuing Flight Service as it existed before the A-76, and the
26 Younger workers were either rehired by the Agency or had the luxury of years in which to retrain and find careers that have the potential – through higher incomes and/or pension plans – to replace the salary and benefits that had been provided by the FAA. Older workers, as Dr. Belman’s report explains, do not have enough working life remaining to them to recoup the cost (both direct cost and loss of income while retraining) of retraining and were forced to sign on with the monopsony employer, Lockheed – virtually the only potential customer for their specialized skills. See Belman Report at 6-7.
27 An analogy will clarify the situation. Suppose an employer is the only employer in town and has two groups of workers, one older and one younger, either of which is technically qualified for a hazardous or otherwise extremely undesirable job. Because younger employees will quit and move out of town if they are assigned the job, the employer assigns the job to the older workforce. There can be no doubt that this would be age discrimination. That is the situation of the present case, as explained by Dr. Belman. Because the Flight Service Controllers are a specialized and older workforce, there is no other “town” (metaphorically speaking) to which they can take their skills.
66

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imperatives of the President’s Management Agenda. Neither of these reasons withstands serious scrutiny.
1. Asserted Cost Reduction and Hiring of Younger Controllers
Defendants cite to numerous studies that recommend, among other cost-cutting measures, the consolidation of the Flight Service, reducing the number of facilities in the lower 48 states (and Puerto Rico) from 58 to approximately 20. Coopers & Lybrand Report at D004846-D004850; Flight Service Architecture Core Group Report, P00758-P00776; 2001 Inspector General Report, P00141P00158. Indeed, even the Flight Service Controllers’ Union had a consolidation plan. CITE Nothing, however, in any of those consolidation plans mandated contracting out the Flight Service to a private entity. The two concepts are simply unrelated.
Defendants significantly overstate the money to be saved from contracting out the Flight Service, as the General Accounting Office has observed. GAO Report Number GAO-05-724 (Jun. 23, 2005), at P00582. It is noteworthy that John Hennigan, the Agency’s deputy chief financial officer, has conceded that, in fact, the Agency had no clear idea of the costs of providing the Flight Service, other than the cost for personnel compensation and benefits. Hennigan II Dep. at 56-58. Moreover,
67

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a comparison of the recommendations of the various studies with the money-saving claims of the Agency indicate that the money saved comes primarily from having consolidated the number of facilities – which did not require contracting out. See Coopers & Lybrand Report at D004848; 2001 IG Report at P00149.28 Furthermore, it is not clear that the reduced cost of the service is a bargain: Lockheed has never met its performance metrics and pilot usage has decline by two thirds, resulting in a significantly higher per-contact cost.
Finally, the Agency’s vaunted concern with cost-savings would be more convincing if it had ever followed any of the other significant cost-saving suggestions put forth by the Office of the Inspector General and the other entities to which Defendants point. These suggestions have included consolidating the number of regional offices of the FAA to reduce administrative and overhead expenses (at a projected savings of $100 million per year), increasing the use of contract control towers in small airports, and even collecting funds owed to it by contractors. In the absence of any apparent attempt to control costs in any
28 Of course, some of the savings may come from Lockheed’s lower labor costs, which are made possible by the fact that, as Lockheed employees, the Controllers have no pension benefits.
68

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other significant way, the Defendants’ protestations of the necessity of cost control by contracting out the Flight Service are unconvincing.
2. The President’s Management Agenda. The FAA’s other principal defense to the charge of disparate treatment is that the A-76 competition was mandated by the President’s Management Agenda. However, as noted above, the fact that there was no existing private workforce to provide the services to be competed – unlike, as recommended in the PMA, services such as data or payroll processing – the selection of the Flight Service as the function for FAA’s first and only A-76 is problematic. More importantly, as described above, FAA interest in complying with the PMA extended only to the Flight Service. Despite the PMA’s goal of competing or converting fifty percent of each Agency’s commercial functions, the FAA has conducted no A-76 studies before or since the Flight Service. Although both Joann Kansier and Ronald Page compiled lists of additional functions that should be considered for competitive sourcing, none was. Little Dep. at 58-64. Even the name of the Office of Competitive Sourcing has been changed to indicate a focus on
69

Case 1:05-cv-00654-RWR Document 261 Filed 06/15/09 Page 70 of 73
procurement assistance rather than cost comparisons. Id. at 65. IV. Conclusion.
In this memorandum, Plaintiffs have demonstrated that there is no factual dispute as the existence of disparate impact discrimination against the Flight Service Controllers over 40. Both Plaintiffs’ and Defendants’ experts agree that the statistical evidence proves that there was a disparate impact. Because this is a federal sector age discrimination case under 29 U.S.C. § 633a, which holds the government to a more rigorous standard than the private sector, the Defendants, in order to defend against this uncontroverted demonstration, must show that the disparate impact was caused by a business necessity. They have attempted to do so, claiming the disparate impact to be caused by the need to lower costs and to comply with the President’s Management Agenda. In fact, however, it is evident that many alternatives existed to the A-76 path the Defendants chose, including: • correctly recognizing that, in view of the unavailability of
a commercial workforce to fulfill the mission of Flight Service, it was more suitably characterized as Reason Code A, exempt from competition as a core function of the Agency
70

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• contracting out functions of the Agency that are more customarily outsourced, such as data processing or human resources, which would not have disproportionately impacted older workers
• consolidated the Flight Service as suggested in the multiple reports, including the NAATS proposal, that were presented to the FAA over the years, utilizing the superior OASIS system which the FAA paid to develop, without contracting out the Flight Service. The reports and the experiential evidence indicate that the savings would have been comparable, if not exactly equivalent, to the savings the FAA now claims to be experiencing, with a significantly greater quality of service.
• competing the Flight Service, but requiring prospective contractors to furnish their own workforce, either by locating commercially available workers or by offering sufficient compensation to federal Controllers to induce them to leave their federal jobs instead of exercising the RIF rights normally available to federal workers whose jobs have been outsourced
71

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• availing itself of other cost-saving proposals, such as the consolidation of FAA regions, which would have yielded savings equivalent to (or, in combination, possibly greater than) the outsourcing of the Flight Service Accordingly, Plaintiffs having met their burden to
demonstrate that the FAA had at its disposal equally effective, non-discriminatory ways to meet their business necessity, this Court should grant summary judgment to Plaintiffs and find that Defendants have discriminated against them on the basis of age.
Plaintiffs have also demonstrated that dispute exists as to the material facts that would determine their claim that Defendants engaged in disparate treatment of them. Accordingly, summary judgment on the issue of disparate treatment must be denied.
This Brief is submitted on behalf of the Plaintiffs represented by the Gebhardt & Associates law firm. A proposed Order and Plaintiffs’ Statement of Facts in Opposition to Defendants are attached.
Respectfully submitted,
/s/ JOSEPH D. GEBHARDT
(D.C. Bar No. 113894)
72

Case 1:05-cv-00654-RWR Document 261 Filed 06/15/09 Page 73 of 73

June 15, 2009

CHARLES W. DAY, JR. (D.C. Bar No. 459820)
LENORE C. GARON (D.C. BAR No. 172205)
VALENCIA R. RAINEY (D.C. Bar No. 435254)
DANIEL K. GEBHARDT (D.C. Bar No. 975703)
GEBHARDT & ASSOCIATES, LLP 1101 17th Street, N.W. Suite 807
Washington, DC 20036-4716 (202) 496-0400
Counsel for Plaintiffs

73

 
 Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...

2009 WL 4920573 (D.D.C.) (Trial Motion, Memorandum and Affidavit) United States District Court, District of Columbia.
Kathleen A. BREEN, et al., Plaintiffs, v.
Ray LAHOOD, et al., Defendants.
No. 1:05CV00654-RWR. August 26, 2009.

Memorandum of Points and Authorities in Opposition to Plaintiffs’ Cross Motion for Summary Judgment and Reply Memorandum in Support of Defendants’ Motion for Summary Judgment

Tony West, Assistant Attorney General; Channing D. Phillips, United States Attorney; Of Counsel: Eden Brown Gaines, Esq., Michael Doherty, Esq., Julia A. Rhodes, Esq., Personnel & Labor Law Staff, Office of Chief Counsel, Federal Aviation Administration, 600 Independence Ave., S.W., Room 1E100, Washington, D.C. 20591, Phone: (202) 385-8254, Fax: (202) 493-5085.

Stuart A. Licht, Assistant Branch Director, Civil Division, Brian G. Kennedy (DC Bar No. 228726), Adam D. Kirschner (IL Bar No. 6386601), Lisa Zeidner Marcus (N.Y. Bar); United States Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue N.W. Room 7126, Washington, D.C. 20530, Telephone: (202) 514-3357, Fax: (202) 616-8470, Email: brian.kennedy @usdoj.gov, Attorneys for Defendants.
TABLE OF CONTENTS

Introduction ..............................................................................................................................................................................................

1

I. BECAUSE PLAINTIFFS HAVE NOT RESPONDED TO DEFENDANTS’ PRINCIPAL

1

ARGUMENTS THAT THE ONLY PERSONNEL ACTION PROPERLY AT ISSUE IN THIS CASE,

THE REDUCTION IN FORCE, APPLIED TO YOUNG AND OLD ALIKE, DEFENDANTS ARE

ENTITLED TO SUMMARY JUDGMENT ...............................................................................................................................

II. EVEN IF THE COURT WERE TO LOOK BEYOND THE PERSONNEL ACTION AT ISSUE -- THE

4

OCTOBER 3, 2005 REDUCTION IN FORCE -- AND EXAMINE THE BUSINESS DECISIONS THAT

LED TO THE RIF, THERE WERE SOUND NON-DISCRIMINATORY REASONS FOR THOSE

DECISIONS ............................................................................................................................................................................................

A. Any Specific Practice By Defendants That Generated Any Adverse Statistically Significant Disparity

5

With Respect To Older Workers Was Justified By A Reasonable Factor Other Than Age And By Business

Necessity ...................................................................................................................................................................................................

1. In Order To Prove A Disparate Impact Violation Plaintiffs Must Isolate And Identify The Specific

5

Employment Practices Responsible For Any Statistical Disparity .....................................................................................

2. As Plaintiffs Concede, Secretary Mineta’s Decision That En Route Center And Larger Terminal

7

Controllers Perform “Core” Functions That Could Not Be Outsourced Was Based On Reasonable Factors

Other Than Age ......................................................................................................................................................................................

3. Reliance On Reasonable Factors Other Than Age Is A Defense To An ADEA Disparate-Impact Claim .....

7

4. Even If The Business Necessity Test Were Applicable, It Would Not Require The FAA To Show That

12

Not Outsourcing Its Core En Route And Terminal Controllers Was “Essential” To Its Operations .....................

1

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...

5. Secretary Mineta’s Decision Not To Outsource The Core Functions Performed By En Route And Larger Terminal Controllers Was Justified By Necessity .................................................................................................................... B. Defendants Are Entitled To Summary Judgment On Plaintiffs’ Disparate Treatment Claim Because Age Was Not The But-For Cause Of Any Adverse Employment Action In This Case .......................................................
1. Plaintiffs Cannot Show, As They Must To Prevail On An ADEA Disparate-Treatment Claim, That Age Was A But-For Cause Of A Challenged Adverse Employment Action ...........................................................................
2. Statistical Evidence Does Not Support Plaintiffs’ Disparate Treatment Claims ...................................................... 3. There Are No Issues of Material Fact With Regard To The FAA’s Use Of “Aging Workforce” And “Retirement Eligible” ...........................................................................................................................................................................
4. The Treatment Of The Most Efficient Organization Does Not Suggest Discrimination ......................................
5. The FAA’s Hiring Decisions After the RIF Are Not Material To Any Claim Properly Raised In This Case And, In Any Event, Plaintiffs Have Not Shown Discrimination In Those Decisions ......................................
a. Any Question Of Discrimination In Post-RIF Hiring Decisions For Other FAA Positions Is Not Properly Before The Court ...................................................................................................................................................................................
b. Plaintiffs Have Not Shown That Hiring For Other Positions Was Discriminatory ................................................. 6. Plaintiffs Fail To Rebut Defendants’ Proffered Reasons For Conducting The A-76 Study ................................
a. The Demand For Flight Service Has Been In Long-Term Secular Decline ............................................................... b. The FAA Considered Compliance With The President’s Management Agenda To Be Important ...................
c. A Desire To Save Taxpayers Two Billion Dollars In Unnecessary Expenditure Was An Actual Reason For The Challenged Decisions ..........................................................................................................................................................
Conclusion ................................................................................................................................................................................................
TABLE OF AUTHORITIES
CASES
Aliotta v. Bair, 576 F. Supp. 2d 113 (D.D.C. 2008), motion to alter or amend judgment denied, 673 F. Supp. 2d 73 (D.D.C. 2009) ...................................................................................................
Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999) ...............................................................................
Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991) ............................................................
Barbour v. Browner, 181 F.3d 1342 (D.C. Cir. 1999) ............................................................................
Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008) ................................................
Breen v. Mineta, 2005 WL 3276163 (D.D.C. Sept. 30, 2005) .............................................................
Brown v. Small, 437 F. Supp. 2d 125 (D.D.C. 2006) ............................................................................... 2

14 17 18 20 23 27 30 30 32 37 37 39 43 46
32, 35 12, 13
9 46 40 33 33

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...
Buggs v. Powell, 293 F. Supp. 2d 135 (D.D.C. 2003) ............................................................................. Canning v. Dep’t of Defense, 499 F. Supp. 2d 14, (D.D.C. 2007) ...................................................... Carswell v. Air Line Pilots Ass’n, 540 F. Supp. 2d 107, (D.D.C. 2008) .......................................... City of Los Angeles v. Manhart, 435 U.S. 702 (1978) ............................................................................. Cochrane v. Norton, 2003 WL 21768006 (N.D. Cal. July 28, 2003) ................................................ Cox v. Infomax Office Sys., Inc., 2009 WL 124700 (S.D. Iowa. Jan. 16, 2009) ............................ Doan v. Seagate Technology, Inc., 82 F.3d 974 (10th Cir. 1996) ....................................................... Evers v. Alliant Techsystems, Inc., 241 F.3d 948 (8th Cir. 2001) ....................................................... Farris v. Clinton, 602 F. Supp. 2d 74 (D.D.C. 2009) .............................................................................. Fischback v. District of Columbia Dep’t of Corrections, 86 F.3d 1180 (D.C. Cir. 1996) ......... Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001) ...................................................................................... Glenn v. Bair, 2009 WL 2430627 (D.D.C. Aug. 10, 2009) .................................................................. Green v. Missouri Pacific R. Co., 523 F.2d 1290, 1298 (8th Cir. 1985) .......................................... Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009) ..................................................................... Hall v. Giant Food, Inc., 175 F.3d 1074 (D.C. Cir. 1999) ..................................................................... Hopkins v. Whipple, 2009 WL 1874076 (D.D.C. June 30, 2009) ....................................................... Horvath v. Thompson, 329 F. Supp. 2d 1 (D.D.C. 2004) ....................................................................... International Broth. of Teamsters v. United States, 431 U.S. 324 (1977) ....................................... Laffey v. Northwest Airlines, Inc., 740 F.2d 1071 (D.C. Cir. 1984) ................................................... Licausi. v. Symantec Corp., 2009 WL 1873663, at *15 (S.D. Fla. June 30, 2009) ...................... May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997), cert. denied, 524 U.S. 927 (1998) ........... McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................................................... Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008) .......................................... Menoken v. Whipple, 605 F. Supp. 2d 148 (D.D.C. 2009) .................................................................... Mereish v. Walker, 359 F.3d 330 (4th Cir. 2004) ...................................................................................... National Federation of Federal Employees v. Cheney, 883 F.2d 1038 (D.C. Cir. 1989) .......... Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ..........................
3

1 19 36 12 26 26 35 46 33 29 9, 10 19 13 passim 35 10, 11 33 23 12 36
2 12 passim 23 26 44 12

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...
Parcinski. v. The Oulet Co., 673 F.2d 34 (2d Cir. 1982) ........................................................................ Powers-Bunce. v. District of Columbia, 576 F. Supp. 67(D.D.C. 2008) .......................................... Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000) ............................................................... Ridenhour v. Lawson Co., 791 F.2d 52 (5th Cir. 1986) .......................................................................... Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544 (6th Cir. 2004) ......................... Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913 (7th Cir. 2000) ........................................................... Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ........................................................................................ Shaw v. Marriot International, Inc., 570 F. Supp. 2d 78 (D.D.C. 2008) ......................................... Smith v. City of Jackson, 544 U.S. 228 (2005) ........................................................................................... Smith v. Napolitano, 2009 WL 1740520 (D.D.C. June 22, 2009) ...................................................... Tice v. Bristol-Myers Squibb Co., 515 F. Supp. 2d 580 (W.D. Pa. 2007), aff’d, 2009 WL 943838 (3d Cir. Apr. 8, 2009) ........................................................................................................................... United States v. St-Louis-San Francisco Ry., 464 F.2d 301 (8th Cir. 1972) ................................... Valaris v. Army and Air Force Exchange Service, 577 F. Supp. 282 (N.D. Calif. 1983) .......... Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ..................................................................... Wells v. United States, 578 F. Supp. 794 (D.D.C. 1983) ........................................................................ Williams v. Dodaro, 576 F. Supp. 2d 72 (D.D.C. 2008) ......................................................................... STATUTES 5 U.S.C. § 2109 ...................................................................................................................................................... 5 U.S.C. § 8336 ...................................................................................................................................................... 5 U.S.C. § 8339(a) ................................................................................................................................................. 5 U.S.C. § 8339(e) ................................................................................................................................................. 5 U.S.C. § 8421 ...................................................................................................................................................... 29 U.S.C. § 623 ...................................................................................................................................................... 29 U.S.C. § 623(a) ................................................................................................................................................. 29 U.S.C. §§ 623(l)(1)(a)(ii) .............................................................................................................................. 29 U.S.C. § 633(a) ................................................................................................................................................. LEGISLATIVE MATERIALS
4

36 19 35 36 26 31, 32 12
1 passim
19 28
13 11, 12 13, 14
32 46
16 34 34 34 11
8 8 11 8

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...

S. REP. NO. 96-144 ..............................................................................................................................................

44

149 Cong. Rec. S15386-90 (daily ed. Nov. 21, 2003) (statements of Senators Hollings and

16

Jeffords) .....................................................................................................................................................................

Department of Transportation and Related Agencies Appropriations for 1998: Hearing

24

Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on

Appropriations, 105th Cong. 48 (1997) ........................................................................................................

Department of Transportation and Related Agencies Appropriations for 2002: Hearing

24

Before the Subcomm. on Transportation and Related Agencies of the H. Comm. on

Appropriations, 107th Cong. 471 (2001) .....................................................................................................

EXECUTIVE MATERIALS

Exec. Order 13180, 65 Fed. Reg. 77493, 77494 (Dec. 11, 2000) .......................................................

17

Exec. Order 13264, 67 Fed. Reg. 39243 (June 7, 2002) .........................................................................

17

FAA Order 3350.2c, Staffing Adjustments and Reductions In Force (Oct. 17, 1994) ................

36

5 C.F.R. § 351.701 ................................................................................................................................................

36

OTHER

Matthew L. Wald, Up, Up, and . . . Never Mind, New York Times, Apr. 26, 2007 ....................

38

National Civil Aviation Review Commission Final Report, http://

39

www.library.unt.edu/gpo/NCARC/reports/pepele.htm, Part II, § V.C. (last visited April 22,

2009) ...........................................................................................................................................................................

INDEX OF EXHIBITS (INCLUDING EXCERPTS OF DEPOSITIONS) TO MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT AND REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

TAB NO.

DESCRIPTION OF DOCUMENTARY EXHIBITS

1

Deposition of Dale Belman

Represented plaintiffs’ liability expert witness

2 5

Deposition of Marilyn Jackson-Brame Served as FAA Deputy Director, Office of Competitive Sourcing; previously, director of

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573... Flight Services

3

Deposition of Jack Nimmo

Served as member of FAA Automated Flight Service Stations Feasibility Study Workgroup

4

Deposition of Marion Blakey

FAA Administrator (September 2002- September 2007)

5

Bertram’s Presentation to the Administrator

6

Deposition of Walter Pike

President, National Association of Air Traffic Specialists (1998-2004)

7

Deposition of George Williams

FAA Human Resources Official

8

Defendants’ Response to Plaintiffs’ Interrogatory No. 24

9

Deposition of James Little

FAA Official; Technical Team Lead, FAA Office of Competitive Sourcing

6

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...

10

Deposition of Richard Freed

Plaintiff

11

Deposition of Ronald Page

FAA Official; Helped to Coordinate the FAA’s Compliance with the Federal Activities Inventory Reform (FAIR) Act of 1998

12

Deposition of Robert Sturgell

FAA Deputy Administrator (2002-2007); FAA Acting Administrator (2007-2009)

13

Defendants’ Response to Plaintiffs’ Interrogatory No. 13

14

Deposition of Gregory Mitchell

Plaintiff

15

Deposition of John Hennigan (1st Hennigan Dep.)

FAA Deputy Assistant Administrator for Financial Services

16

July 12, 2003, Department of Transportation and Federal Aviation

Administration, Grant Thornton Feasability Study (Grant Thornton Report)

17 7

Deposition of Joseph Tryon

Kathleen A. BREEN, et al., Plaintiffs, v. Ray LAHOOD, et..., 2009 WL 4920573...

Represented plaintiffs’ damages expert witness

18

Deposition of William Carrington

Defendants’ expert witness for damages and also for liability

Introduction
Defendants are entitled to summary judgment in this case. Plaintiffs neither responded to the principal arguments that defendants made in support of defendants’ motion for summary judgment nor discussed the principal case on which defendants relied. Part I, infra. The arguments plaintiffs did make in their brief, all on points that need not be reached by the court, lack merit in any event. Part II, infra.
I. BECAUSE PLAINTIFFS HAVE NOT RESPONDED TO DEFENDANTS’ PRINCIPAL ARGUMENTS THAT THE ONLY PERSONNEL ACTION PROPERLY AT ISSUE IN THIS CASE, THE REDUCTION IN FORCE, APPLIED TO
YOUNG AND OLD ALIKE, DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT
It is “well-settled that where a non-moving party fails to oppose arguments set forth in a motion for summary judgment, courts may treat such arguments as conceded.” Shaw v. Marriot International, Inc., 570 F. Supp. 2d 78, 89 n.20 (D.D.C. 2008); accord, e.g., Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (applying principle to foreclose claims in Title VII case). The represented plaintiffs chose not to respond to the principal arguments defendants made in support of their summary judgment motion. Those arguments are by themselves sufficient to compel summary judgment for defendants even if defendants are utterly wrong about each and every one of the arguments that the represented plaintiffs did respond to. Defendants are accordingly entitled to summary judgment.1
The only “personnel action” at issue in this case, and therefore the only action that can be challenged under the ADEA, is the Reduction in Force (“RIF”) of October 3, 2005. Defendants moved for summary judgment because the RIF was “utterly indiscriminate” and applied to all the flight service specialists “whether they were 39 or 59, [so] there was no discrimination on the basis of age.” Defs. SJ Mem. (Dkt. 256-1) at 2. By page 2 of their summary judgment brief, defendants had already identified the Court of Appeals case that compels that conclusion, May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997), cert. denied, 524 U.S. 927 (1998). These points were developed at length in Part I of defendants’ argument, which defendants quite openly argued “fully addresse [d] any issue of discrimination.” Defs. SJ Mem. at 32 (emphasis added). The brief compared the facts of this case to May and explained that, under the holding in May, on the common facts of the two cases, defendants were entitled to summary judgment. Id. at 32-35.
Defendants provided additional arguments for summary judgment in Part II of the argument, showing why the Court ought not accept any invitation from plaintiffs to expand the scope of the ADEA to challenge the underlying structural decisions that helped lead to the RIF. Part III then began by asserting that none of the points it would address would need to be reached since defendants were entitled to summary judgment for the reasons already set forth in Parts I and II. Id. at 54-55. Defendants’ contention that the arguments set forth in Parts I and II of defendants’ opening brief were by themselves sufficient to compel summary judgment for defendants was not hidden.
The represented plaintiffs’ opposition to defendants’ summary judgment motion does not address those arguments that
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defendants’ motion for summary judgment had made first and principally. With one partial and ultimately immaterial exception, plaintiffs do not respond to Part I or Part II of defendants’ argument at all.2 Plaintiffs ignore entirely the Court of Appeals decision in May, the case defendants had identified, Defs. SJ Mem. at 32-34, as controlling. This case involves a RIF, and defendants therefore pointed the Court to other ADEA cases involving RIFs. Defs. SJ Mem. at 32-34 & nn.32-33, 43, 55-57. Plaintiffs, on the other hand, do not focus on termination cases, let alone RIF cases, let alone cases (like this one and May) involving RIFs of an entire workgroup. Plaintiffs instead draw their conceptual framework of the legal issues from cases and hypotheticals addressing hiring, promotion, and pay issues. Pls. Mem. at 23-30, 68 n.27. With respect to the issue presented here, whether an across-the-board RIF of an entire workgroup somehow violates the ADEA even though the young as well as the old are let go, plaintiffs do not even attempt to explain why this Court should not follow May by granting summary judgment for defendants.
Defendants do not summarize those principal arguments of their opening brief in order to invite some belated response. For whatever reason, plaintiffs chose not to respond to defendants principal arguments, and they must now abide by that considered choice. The Court’s rules and practices on motion briefing are not mere technicalities. They are designed to assure fairness to the parties and to help the Court reach decisions by assuring that each party is willing to confront and address its adversary’s arguments-in-chief and has an opportunity to do so. Plaintiffs cannot undo their decision to ignore the principal arguments set forth in defendants’ motion by sandbagging a belated response into a reply memorandum for their cross-motion for summary judgment on disparate impact.3 That memorandum, to which defendants will have no opportunity to respond, is supposed to address only the different points plaintiffs did choose to address in their cross-motion and our responses below to the points raised by the cross-motion.
For the unresponded-to reasons stated in Parts I and II of the memorandum supporting defendants’ motion for summary judgment, defendants’ motion for summary judgment should be granted.
II. EVEN IF THE COURT WERE TO LOOK BEYOND THE PERSONNEL ACTION AT ISSUE -- THE OCTOBER 3, 2005 REDUCTION IN FORCE -- AND EXAMINE THE BUSINESS DECISIONS THAT LED TO THE RIF, THERE
WERE SOUND NON-DISCRIMINATORY REASONS FOR THOSE DECISIONS
In defendants’ opening brief, after defendants had explained in Parts I and II of the argument why the only personnel action at issue, the RIF, was utterly non-discriminatory, and why the Court ought not accept plaintiffs’ invitation to expand the scope of the ADEA to encompass plaintiffs’ attacks on defendants’ underlying structural decisions that led to the RIF, Defs. SJ Mem. (Dkt. 256-1) at 32-54, defendants explained that they would nevertheless address plaintiffs’ arguments that the FAA’s decisions were discriminatory on the “arguendo ” assumption that those issues should be reached, id. at 32, 54-55. Defendants did so in Part III of the argument, some of which plaintiffs address. Because plaintiffs do not respond to Parts I and II of defendants’ argument, the only issues plaintiffs do address need not and ought not be reached. However, on what is again only an arguendo assumption that these issues should be reached, defendants address below plaintiffs’ arguments that the structural decisions that in combination led to the RIF were somehow discriminatory.
A. Any Specific Practice By Defendants That Generated Any Adverse Statistically Significant Disparity With Respect To Older Workers Was Justified By A Reasonable Factor Other Than Age And By Business Necessity
1. In Order To Prove A Disparate Impact Violation Plaintiffs Must Isolate And Identify The Specific Employment Practices Responsible For Any Statistical Disparity
Plaintiffs argue that the FAA’s actions had a disparate impact on older workers. Pls. Mem. (Dkt. 265-3) at 2. In order to prove a disparate impact claim, plaintiffs must “isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.” Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2405 (2008) (citations and internal quotations omitted) (emphasis original). Plaintiffs try to evade that requirement of specificity, by arguing that they are challenging “Defendants’ A-76 process” and an ingredient list of separate decisions that, together, ultimately led to the RIF, in the apparent hope that disparate impact will turn up somewhere in the goulash. Pls. Mem. at 10.
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Plaintiffs’ statistical expert did not produce any statistics showing a disparate impact caused by any specific practice (plaintiffs instead rely on him for their disparate treatment claim, see id. at 55-56), so for their disparate impact claim plaintiffs rely on the report of defendants’ statistical expert, Bernard Siskin. Id. at 5, 14-15.4 However, unlike plaintiffs, Siskin did recognize that it is important to identify which, if any, specific practice (which Siskin refers to as a “test”) resulted in any statistically significant disparity. Report of Defs’ Expert Bernard Siskin (“Siskin Rep’t”), Defs. SJ Ex. 96 (Dkt. 256-98), ¶¶ 18, 19; see also Defs. SJ Mem. (Dkt. 256-1) at 64-90 (discussing different “tests” that preceded the RIF).
As Siskin explained, the only “test” in this case that resulted in any statistically significant disparity adverse to older workers was the decision that air traffic separating controllers performed “core” functions of the FAA that could not be outsourced. Siskin Rep’t ¶ 34.5 By contrast, flight service specialists like plaintiffs, whose jobs did not involve the core function of separating air traffic,6 were not deemed to be “core” and thus were potentially subject to outsourcing. That distinction between core and non-core functions caused any statistically significant age-based disparity in this case. Siskin Rep’t ¶ 34. Thus, analysis of any disparate-impact claim in this case must center on that specific distinction identified in Siskin’s report as the cause of any statistically significant disparity.
2. As Plaintiffs Concede, Secretary Mineta’s Decision That En Route Center And Larger Terminal Controllers Perform “Core” Functions That Could Not Be Outsourced Was Based On Reasonable Factors Other Than Age
The decision that the air traffic separating controllers at en route center and larger terminals performed “core” functions and that their functions could not be outsourced was made by then-Secretary Norman Mineta. His decision was based on reasonable factors other than age and, indeed, was compelled by necessity, including a refusal by the Senate to reauthorize the FAA without a promise that such controllers not be outsourced. Defs. SJ Mem. (Dkt. 256-1) at 68-72.
Plaintiffs do not argue that Mineta’s decision was taken because of age. They do not argue that the non-age factors Mineta did consider were unreasonable. Plaintiffs, in short, do not contest defendants’ showing that Mineta’s decision relied on reasonable factors other than age.
3. Reliance On Reasonable Factors Other Than Age Is A Defense To An ADEA Disparate-Impact Claim
Plaintiffs instead attempt to argue that even if Mineta’s decision had relied on merely reasonable factors other than age, that would not be a defense, because, in plaintiffs’ view, only “business necessity” would qualify as a defense. Pls. Mem. (Dkt. 265-3) at 23-25, 28-29.
However, “the business necessity test should have no place in ADEA disparate-impact cases.” Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2404 (2008). Plaintiffs nevertheless argue that the business necessity test should have, not merely a place, but a central role, in an ADEA disparate-impact cases whenever the defendant is a federal agency. Pls. Mem. at 23-25, 28-29. That view is mistaken.
Plaintiffs argue that the “reasonable factors other than age” or “RFOA” defense is not available to a federal-agency defendant because the RFOA defense is set out in 29 U.S.C. § 623, the private-sector ADEA provision, rather than in 29 U.S.C. § 633(a), the federal-sector provision. Pls. Mem. at 23-25.
That an RFOA defense is set forth in the text of section 623 was one reason why the Supreme Court recognized that defense in private-sector cases. Smith v. City of Jackson, 544 U.S. 228, 236-41 (2005). But that textual provision for an RFOA defense, the Supreme Court recognized, was “coupled with” relevant “differences between age and the classes protected in Title VII.” Id. at 236 n.7 (emphasis original). “Limit[ing] the coverage of the ADEA by including the RFOA provision,” the Court explained, is “consistent with the fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment.” Id. at 240. “Thus,” the Court emphasized, “it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.” Id. at 241. Accord Meacham, 128 S. Ct. at 2406. Such relevant differences between age discrimination and other kinds of discrimination do not disappear merely because a federal agency happens to be
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the defendant.
Plaintiffs argue that, even in situations where age discrimination raises distinctive issues that sensibly call for a difference or modification of Title VII rules, federal-defendant ADEA cases must nevertheless be treated as if they involved race or gender rather than age. Pls. Mem. at 25. Plaintiffs say this counter-intuitive result is required because language of the federal-sector ADEA is borrowed from the language of the federal-sector Title VII provision. That is not correct. The Supreme Court has recently explained in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), that even where “ ‘the substantive provisions of the ADEA were derived in haec verba from Title VII,’ ” the Court has not always interpreted the two statutes in lockstep. 129 S. Ct. at 2349 n.2, quoting and responding to id. at 2354 (Stevens, J., dissenting). “[F]or example, the Court declined to interpret the phrase ‘because of . . . age’ in 29 U.S.C. § 623(a) to bar discrimination against people of all ages, even though the Court had previously interpreted ‘because of . . . race [or] sex’ in Title VII to bar discrimination against people of all races and both sexes.” Id., 129 S. Ct. at 2349 n.2. Plaintiffs themselves appear to argue for treating ADEA cases differently in at least one respect from the way gender discrimination is treated: If an employer, whether out of misguided chivalry or otherwise, will not hire women for hazardous jobs, it violates Title VII, Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), whereas according to plaintiffs if an employer does hire older workers for hazardous jobs there is “no doubt that this would be age discrimination” even if the only applicants are older workers, Pls. Mem. at 68 n.27. And, in Gross itself, the Supreme Court held that, to state a disparate-treatment claim of age discrimination, a plaintiff must show “but for” causation, even though Title VII had previously been interpreted to allow for liability in some “mixed motive” cases. Thus, even where the language of the two statutes is the same, it can be appropriate to take into account the ways in which age discrimination is distinctive.7 And, as Smith v. City of Jackson and Meacham both recognize, it does make good sense to allow employers to use practices justified by reasonable criteria other than age even though some such practices may have a disparate impact on older workers.
It is no wonder then that courts in this circuit have indicated that an RFOA defense is available in federal-sector ADEA cases. Defs. SJ Mem. at 67 (citing cases).8 Plaintiffs did not address or cite those cases. Instead, plaintiffs rely principally on a 1983 case from outside this circuit that does not address or decide RFOA issues, and that, on the different issue it does address, appears to illustrate the dangers, rather than any virtues, of reflexively transposing race or gender discrimination rules into the context of age discrimination. Pls. Mem. at 25, 28, citing Valaris v. Army & Air Force Exchange Service, 577 F. Supp. 282 (N.D. Calif. 1983).9 In short, plaintiffs’ attempt to jam the round peg of the Title VII business necessity test into the oval hole of ADEA disparate-impact analysis should be rejected.10
4. Even If The Business Necessity Test Were Applicable, It Would Not Require The FAA To Show That Not Outsourcing Its Core En Route And Terminal Controllers Was “Essential” To Its Operations
Plaintiffs err not only in asserting that the “business necessity” defense applies to an ADEA case, but also in outlining the requirements of that defense in the event that it did apply.
Plaintiffs argue, Pls. Mem. (Dkt. 265-3) at 28, that the “mere fact that a non-discriminatory alternative is more costly does not fulfill the ‘business necessity’ requirement,’ because “it is intuitively obvious that in every disparate impact case that involves compensation, continued discrimination will always be less expensive.” To illustrate what is supposedly shown by “every disparate impact case that involves compensation” (which this case does not involve) plaintiffs discuss six cases, fou r of which are disparate-treatment, not disparate-impact, cases. Id. at 29-30.11 Nor is it “intuitively obvious” that “continued discrimination will always be less expensive.” One reason why discrimination is disfavored (other reasons justify stronger pejoratives) is that an employer who makes personnel decisions affected by irrelevant characteristics like skin color or gender will often cost his enterprise, the economy, and ultimately society money or other resources compared to an employer who makes decisions based on the fit between each individual’s talents and job requirements. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). Such baseless discrimination is often costly, not cost-saving. Even one of the cases plaintiffs rely on makes the point (180 degrees opposed to plaintiffs’ intuition) that, by adopting a practice that had a discriminatory impact, the employer appeared to be needlessly spending, rather than saving, money. Anderson v. Zubieta, 180 F.3d 329, 345-46 (D.C. Cir. 1999). In this case, defendants did not save the taxpayers two billion dollars by discriminating; they saved it by the non-discriminatory decisions that resulted in the non-discriminatory outsourcing.
When plaintiffs turn beyond intuition for a statement of what an actual disparate-impact case does say the “business
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necessity” defense requires, plaintiffs look to and block quote a 1985 Eighth Circuit case quoting a 1972 Eighth Circuit case, which indicates that business necessity “connotes an irresistible demand” that must not merely “Foster” but be “Essential” to “safety and efficiency.” Pls. Mem. at 28, quoting Green v. Missouri Pacific R. Co., 523 F.2d 1290, 1298 (8th Cir. 1985), quoting United States v. St-Louis-San Francisco Ry., 464 F.2d 301, 308 (8th Cir. 1972) (words emphasized by Eighth Circuit capitalized by plaintiffs).
That is not the law. The Supreme Court explained in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989):12
Though we have phrased the query differently in different cases, it is generally well established that at the justification stage of such a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. . . . The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be “essential” or “indispensable” to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above.
(emphasis added and citations omitted). The Supreme Court also flatly rejected plaintiffs’ intuition that consideration of cost can play no role in disparate-impact analysis whether a practice serves an employer’s legitimate employment goals. 490 U.S. at 661.
5. Secretary Mineta’s Decision Not To Outsource The Core Functions Performed By En Route And Larger Terminal Controllers Was Justified By Necessity
Whether the appropriate defense to a disparate impact claim is the reasonable factors other than age test that applies in ADEA cases (and that therefore should apply here), the Supreme Court’s Wards Cove test whether a practice significantly serves “legitimate employment goals,” or even the overly strict version of the “business necessity” test proposed by plaintiffs, the test is met here.
As Siskin, the defendants’ expert upon whom plaintiffs’ rely, explained, the specific practice that had any statistically significant disparity here is not, as plaintiffs (ignoring Siskin on this point) would have it, some global perception of the A-76 process in general. Instead, one must “isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.” Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2405 (2008). As Siskin explained, the specific decision responsible for any observed statistical disparity was the decision that aircraft separating controllers (i.e., en route center and terminal controllers) performed core functions and could not be outsourced. Siskin Rep’t, Defs. SJ Ex. 96 (Dkt. 256-98), ¶ 34.
It is, to say the least, a “business necessity” and a “legitimate employment goal” that an agency be able to perform its core functions. Secretary Mineta’s decision that aircraft separating controllers performed core functions explained that “the FAA must . . . have the capabilities present to respond to the unique, critical, or other circumstances that substantively impact the safety and security of the national airspace system.” Determination as to the Inherently Governmental Nature of Air Traffic Control Services by Secretary Norman Y. Mineta (“Mineta Determination”), December 18, 2002, Defs. SJ Ex. 27 (Dkt. 256-29), at 5 (emphasis added). He concluded that “ ‘to ensure that the Government has the necessary capabilities to fulfill its mission responsibilities or to meet emergency requirements,’ ” the aircraft separating controllers at en route centers and larger terminal facilities performed activities that are a “core capability” of the FAA. Id. at 6, quoting Revised Supp. Handbook to Circular A-76. There is no basis for a court to second guess the Secretary of Transportation’s determination that separation of air traffic involves a truly core function of the FAA.13
As defendants also demonstrated in their summary judgment brief, Defs. SJ Mem. (Dkt. 256-1) at 70-72, and as plaintiffs did not even attempt to rebut, it would have been impossible in any event for the FAA to have outsourced aircraft separating controllers. Congress insisted, as a pre-condition of reauthorizing the FAA’s existence, on a promise that the FAA not outsource aircraft separating controllers. See 149 Cong. Rec. S15386-90 (daily ed. Nov. 21, 2003) (statements of Senators
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Hollings and Jeffords); see also Statement of Department of Transportation on Amendment of Executive Order on Air Traffic Organization, June 12, 2002, Defs. SJ Ex. 28 (Dkt. 256-30) (2002 Mineta decision not to pursue such outsourcing due in part to recognition that such outsourcing would be “highly controversial” in Congress).
Accordingly, the only specific decision that had a statistically significant disparity -- the decision that aircraft separating controllers had core functions that exempted them from outsourcing efforts -- was plainly based on reasonable factors other than age and by necessity.14
B. Defendants Are Entitled To Summary Judgment On Plaintiffs’ Disparate Treatment Claim Because Age Was Not The But-For Cause Of Any Adverse Employment Action In This Case
Plaintiffs present a variety of arguments that they contend entitle them to survive defendants’ motion for summary judgment on their disparate treatment claim. First, they contend that statistical evidence raises an “inference that age discrimination occurred.” See Pls. Mem. (Dkt. 265-3) at 55-56. Second, they point to the inclusion of the phrases “aging workforce” and “retirement eligible workforce” to describe the flight service workforce. Id. at 56-59. Third, plaintiffs argue that the “Most Efficient Organization” or “MEO,” the in-house group that bid on the flight services contract, was treated in such an unfair way that it implies an intention by the FAA management to deny older workers the opportunity to remain employed by the FAA. Id. at 59-61. Fourth, plaintiffs contend that less than half of the flight service specialists obtained new positions at the FAA following the RIF, id. at 61-66, and that most of them were “were younger than 40,” id. at 64. Finally, plaintiffs argue that defendants’ proffered non-discriminatory reasons are unconvincing. Id. at 66-70. Defendants address plaintiffs’ arguments in turn. But, first defendants discuss the standard of review for summary judgment on ADEA disparate treatment claims, because after defendants filed their opening brief, the Supreme Court issued a decision clarifying the burden plaintiffs must satisfy to present a disparate treatment claim under the ADEA. Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009).
1. Plaintiffs Cannot Show, As They Must To Prevail On An ADEA Disparate-Treatment Claim, That Age Was A But-For Cause Of A Challenged Adverse Employment Action
Defendants’ opening brief explained why the undisputed factual record shows that even if age had played some role in a disputed decision -- it did not -- “defendants would still be entitled to summary judgment if they would have reached the same decision without consideration of age.” Defs. SJ Mem. (Dkt. 256-1) at 90-91.
Plaintiffs did not respond to this argument in their opposition brief, even though defendants asserted it as a “complete defense,” id. at 90 n.72. Plaintiffs admit that age did not play a factor in the request by James Washington, the Vice President of Flight Service, to initiate the RIF. See Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ (Dkt. 265-5) ¶ 113 (“Once the contract for Flight Service had been awarded to Lockheed Martin and the positions of the Flight Service Controllers eliminated, Mr. Washington had no choice as to whether to request the RIF”). Plaintiffs do not controvert defendants’ statement that the “ages of flight service specialists did not factor into Secretary Mineta’s decision not to subject air traffic control services at en route and larger terminal facilities to competitive sourcing.” See id. at 25 (not responding to, and therefore admitting, Def. Stmt. Mat. Facts (Dkt. 256) ¶ 67).
In response to the sworn deposition testimony of other agency officials (Bertram, Hennigan, and DeGaetano) involved in the intermediate decisions that led to the RIF that they did not consider age in any of their decisions, plaintiffs merely state that the FAA officials’ uncontradicted explanations are “credibility question[s] to be decided at trial.” See Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ at ¶¶ 50, 51, 98. But a motion for summary judgment cannot be defeated merely by an opposing party’s speculating that uncontradicted deposition testimony relied on by the movant might be disbelieved. E.g., Powers-Bunce v. District of Columbia, 576 F. Supp .2d 67, 71 (D.D.C. 2008). Plaintiffs also argue, Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ at ¶¶ 52, 99, that defendants’ factual contentions are legal conclusions, but a party likewise may not controvert a movant’s undisputed facts by the mere expedient of relabeling them as legal conclusions. See, e.g., Canning v. Dep’t of Defense, 499 F. Supp. 2d 14, 16 (D.D.C. 2007).
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Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), now makes it clear that plaintiffs’ failure to show that age was a “but-for” cause of a challenged adverse employment action is fatal to any claim of disparate treatment: “[A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Id. at 2352 (emphasis added).15 Plaintiffs cannot satisfy their burden.
Plaintiffs attempt to excuse their failure to show but-for causation by claiming that “inference[s]” somehow “indicate” that the “RIF was the result of disparate treatment because of Plaintiffs’ age.” Pls. Mem. (Dkt. 265-3) at 54, 56. These supposed inferences, however, do not even show that age played any factor in any of the ancillary decisions, let alone that age was “but-for” reason for any relevant FAA decisions. Neither statistical evidence nor non-statistical evidence supports a contrary finding.
2. Statistical Evidence Does Not Support Plaintiffs’ Disparate Treatment Claims
Defendants showed in their opening memorandum that there is no statistical evidence suggesting disparate treatment in this case. See Defs. SJ Mem. (Dkt. 256-1) at 59-63. Plaintiffs ignore this discussion and assert that “the statistical evidence in this case raises a strong inference that age discrimination occurred.” See Pls. Mem. (Dkt. 265-3) at 57. To support this assertion, plaintiffs rely on their expert, Dale Belman, whom they claim showed to “a statistically significant degree, [that] the Flight Service workforce was older than the comparator populations, and that the difference cannot be explained by random selection.” Id. (citing Belman Rep’t, Pls. Mem. Ex. 2 (Dkt. 263-4)).
But that, before the RIF, the flight service workforce was older than some (though not all) other work groups within the FAA is merely a statement of pre-existing fact no one disputes. No one has suggested the possibility Belman needlessly rebuts, that the relative age of the workforce arose by “random” chance. As defendants explained in their opening memorandum, the FAA had done very little hiring of flight service specialists for nearly two decades preceding the RIF in the face of the declining demand for flight service. Defs. SJ Mem. at 15-16, 53. Of course, the workforce had become relatively old and of course that did not arise by mere happenstance.
Plaintiffs, however, try to make an inference from Belman’s rear-view mirror look at pre-RIF facts that the report itself is carefully phrased not to draw, namely, that the forward-looking selection of flight service for the RIF was discriminatory. They try to argue not just that the flight service workforce was relatively old (which is all that Belman’s report actually says), but also that there is some statistical evidence that it was selected for outsourcing because it was old. That leap of logic by plaintiffs beyond Belman’s report is, however, “fatally flawed” because it is based on the assumption that the FAA was selecting “individuals (rather than groups)” to potentially outsource. See Siskin Rep’t, Defs. SJ Ex. 96 (Dkt. 256-98), ¶ 7.
To illustrate why plaintiffs’ analysis is fundamentally flawed, assume the FAA divided its workforce into different workgroups represented by six colors (red, orange, yellow, green, blue, purple) of gumballs. And then assume that each gumball represents an individual employed within each of these workgroups, with one of these colors (e.g., purple) representing flight service specialists. Plaintiffs’ statistical analysis is based on an assumption that the FAA’s process for choosing whom to RIF was akin to mixing thousands of differently colored gumballs into one machine and then ending up with a purple gumball every time it dropped in a dime.
However, the FAA was not selecting individuals but choosing amongst different workgroups. To use the gumball analogy, the FAA was not making separate decisions by picking individual gumballs on thousands of separate occasions; rather, the FAA was picking among gumball colors that had already been organized by color (i.e., by workgroup) into six different machines. Siskin Rep’t ¶ 10. Instead of using thousands of dimes to purchase the same-colored gumballs from a mixed machine, the FAA simply selected a machine of one color.
The chances that the FAA would pick any one machine, i.e., the one with the purple gumballs rather than some other color, is the same as rolling a die, one in six. Belman Dep., Defs. Op. Ex. 1, at 60:16. Since flight service was the second oldest of those six major work groups, the probability that a group as old as or older than the flight service group would be selected if the groups had been chosen by chance was one in three. Siskin Rep’t at 9 n.14. As defendants’ expert Siskin found, such
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chance is “not statistically significantly different from what one would expect from an age-neutral selection process and thus, there is no valid statistical evidence that age was a factor in the process.” Id. ¶¶ 10, 11.
There is thus no statistical basis for plaintiffs’ supposition that the FAA targeted the flight services specialist workforce because it was older than four of the other five large workgroups. Even plaintiffs’ own expert ultimately conceded this point. See Belman Dep. at 59:18-59:22 (admitting that “statistics don’t tell me” that the selection process of which gumball to choose for a RIF was “guided by age”); see also id. at 60:16-61:2 (admitting that statistics do not provide insight into whether the “awareness of age became part of the FAA decision process”). In short, there is no statistical evidence of disparate treatment in this case.16
3. There Are No Issues of Material Fact With Regard To The FAA’s Use Of “Aging Workforce” And “Retirement Eligible”
Plaintiffs rely on the use of the phrase “aging workforce” in some FAA presentations. As explained in defendants’ opening brief, Defs. SJ Mem. at 75-78, 83-84, consideration of an “aging workforce” did not cause any of the agency’s disputed decisions.
Plaintiffs’ response misses the point. Plaintiffs suppose that defendants contend that the phrase “aging workforce” was “a creation of Joann Kansier,” who in early 2003 became head of the Office of Competitive Sourcing. Pls. Mem. at 59 (Dkt. 265-3), not citing Defs. SJ Mem. (Dkt. 256-1) or anything else. Plaintiffs then rebut that imagined contention with the observation that Kansier “was not the first FAA employee to use the term “ ‘aging workforce,’ ” id. Plaintiffs argue that Jack Nimmo, formerly a flight service manager, heard the phrase (before any involvement by Kansier) after he had been recruited by Marilyn Jackson-Brame (the then head of flight service) to work with her in providing subject-matter input for the Grant-Thornton feasibility study. Pls. Mem. at 59-60.
But no one disputes that there had long been awareness of an “aging workforce” within the flight service community. Defendants pointed out in their opening brief, Defs. SJ Mem. at 15-16, that the plaintiffs’ union’s presidents had been making that very point since at least 1997.17 As the union’s congressional testimony had recognized, an “aging workforce” was a symptom of the decline in the relative importance of flight service, including the nearly total shutdown of hiring new flight service specialists (points defendants’ brief also made, Defs. SJ Mem. at 52-53). Nimmo and Jackson-Brame likewise were steeped in flight service, having spent their entire careers there. Jackson-Brame Dep., Defs. SJ Ex. 68 (Dkt. 256-70), at 13-14; Nimmo Dep., Defs. Op. Ex. 3 (Dkt. 256-80), at 85 (“built my life around that option and the people that worked in it”). Both viewed flight service as having long been, in Nimmo’s words, the “redheaded stepchild,” of the FAA that had for many years received less than what Jackson-Brame, Nimmo, the union, and others in flight service thought should be its share of taxpayer dollars. Id. at 91-92; Jackson-Brame Dep., Defs. Op. Ex. 2, at 112, 205-06, 210.18 Like the union and other flight service specialists, as head of flight service Jackson-Brame knew long before Kansier arrived in 2003 that, as a result of the lack of new hiring, her remaining workforce was aging. Jackson-Brame Dep., Defs. Op. Ex. 2, at 194.
But, even though Jackson-Brame and Nimmo became involved in collecting information during the feasibility study, neither Jackson-Brame, nor Nimmo, nor anyone else who had spent their careers inside flight service made the strategic decision to select flight service for an A-76 study. Jackson-Brame Dep., Defs. Op. Ex. 2, at 62-63, 68; Nimmo Dep. at 84-85. In fact, as might be expected given their careers devoted to flight service, Jackson-Brame and Nimmo both strongly opposed that decision. Jackson-Brame Dep., Defs. Op. Ex. 2, at 112-15, 209-10; Nimmo Dep. at 84-85.
Instead, the strategic decision that flight service would be subject to the A-76 study was made by Chris Bertram, who was in the budget office, not flight service, Bertram Dep., Defs. SJ Ex. 47 (Dkt. 256-49), at 29-30, 37-40, 71, and Bertram did not consider the age of the employees when he made the decision, id. at 106-07, 111-12. Bertram’s testimony on this point is clear: Q. . . . At the time that the FAA started looking at the question of outsourcing and conducting an A-76 with regard to flight service, while you were there . . . Did you hear any discussion or see anything in writing that indicated that the flight service controllers then working for FAA were an aging workforce, [that] there was something about their age that was part of this decision-making?
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A. No, the age was not part of the decision-making.
Id. at 106-07. Plaintiffs have cited no contrary evidence showing that Bertram considered the age of the flight service specialists when making his decisions.19
Plaintiffs also rely on various slide presentations that show an “aging workforce” as one factor contributing for studying flight service for an A-76 study. However, Bertram’s presentation to the Administrator, Defs. Op. Ex. 5, does not list an “aging workforce” (or any variant thereof) as a reason for action and lists reasons for action similar to those he later recalled at his deposition.
In any event, as explained in the cases set forth in yet another extended passage of defendants’ summary judgment brief that plaintiffs did not respond to, Defs. SJ. Mem. at 76-78, even if an awareness of an “aging workforce” had played a role in a relevant decisional process, “[g]eneral comments about the aging workforce are simply not the sort of discriminatory comments that give rise to an ADEA claim,” Cox v. Infomax Office Sys., Inc., 2009 WL 124700, at *7 (S.D. Iowa Jan. 16, 2009). See, e.g., Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 548-49 (6th Cir. 2004); Mereish v. Walker, 359 F.3d 330, 337 (4th Cir. 2004); Cochrane v. Norton, 2003 WL 21768006, at *4 (N.D. Cal. July 28, 2003).
Finally, even if, contrary to that case law plaintiffs fail to discuss, consideration of an aging workforce were tantamount to age discrimination, and even if it had been considered by the decision-makers, plaintiffs must do more than show that age was a reason for the challenged adverse employment action, plaintiffs “must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Gross, 129 S. Ct. at 2352. As plaintiffs themselves recognize, “aging workforce” was just one of many reasons listed on the slide presentations they cite. Other reasons listed include “DOT IG recommendation on consolidation,” the “President’s Management Agenda,” an “imbalanced workload,” and “inadequate funding of AFSS related programs.” See, e.g., Pls. Ex. 20 (Dkt. 265-13) at D007314. Nothing in these presentations even begins to suggest that consideration of the “aging workforce” played a determinative, but-for role in the decision to conduct the A-76. Plaintiffs simply do not meet the standard of Gross.
4. The Treatment Of The Most Efficient Organization Does Not Suggest Discrimination
Plaintiffs argue that the agency attempted to rid itself of the flight service specialists by handicapping the MEO, the internal group that bid on the flight service contract during the A-76 process. Pls. Mem. (Dkt. 265-3) at 61-63. Whether the MEO was fairly treated is not relevant to any issue of discrimination. Whether Lockheed or the MEO won, the result would apply equally to old and young employees alike. Lockheed won the contract with respect to all of flight service, not just the with respect to the old specialists that the FAA allegedly wanted to get rid of.
In any event, plaintiffs have not cited any evidence that would allow a fact-finder to conclude that any alleged handicapping of the MEO was due to age discrimination.
Kate Breen, lead plaintiff in this action, on behalf of the other flight service employees, contested the contract award to Lockheed through an administrative appeal. Opinion by Judge Edwin B. Neill of the General Administration Board of Contract Appeals (“Neill Opinion”), Defs. SJ Ex. 18 (Dkt. 256-20), at 3. Judge Neill, sitting as a special master in the FAA administrative proceedings, considered Breen’s challenge to “virtually every phase of this procurement once proposals were submitted” and rejected Breen’s claim that there was institutional bias against the MEO. Neill Opinion at 63.20 Judge Neill found that there was no evidence of prejudice. Id.
Judge Neill also looked at Breen’s specific allegations that the MEO was treated unfairly, and found the allegations to be without merit. For example, Judge Neill found no persuasive evidence to support Breen’s claim that the technical evaluators failed to take into consideration the status of the MEO as incumbent. Id. at 73. After considering Breen’s and the flight service specialists’ multifaceted attack on the process that led to the Lockheed contract award, Judge Neill recommended that Breen’s contest be denied in its entirety. Id. at 102.
Even though claims of age discrimination were not before Judge Neill, his findings on factual issues that were material to the
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decision before him are entitled to issue-preclusive effect to the extent that Breen and the other plaintiffs she represented are attempting to relitigate the same factual issues here. Defs. SJ Mem. at 87-89. Such issue preclusion “serves as an aid to judicial fairness, preventing parties who have previously litigated . . . factual issues from having to relitigate those very same issues which have already been proved.” Tice v. Bristol-Myers Squibb Co., 515 F. Supp. 2d 580, 600 (W.D. Pa. 2007), aff’d, 2009 WL 943838 (3d Cir. Apr. 8, 2009).21
In addition to repeating the assertion, rejected by Judge Neill, that the MEO did not participate in a “level playing field” during the A-76 process, plaintiffs point to several inconsequential facts about the MEO as purported evidence that the MEO was handicapped. Pls. Mem. at 61-63. Plaintiffs ask the Court to consider the fact that the flight service specialists’ union was considered to be a risk factor by one of the technical evaluation teams, id. at 61, but plaintiffs fail to inform the Court that the Source Selection Evaluation Board, which reviewed the team’s recommendations as part of the process of selecting a bidder, rejected the technical team’s finding on that very point, see Neill Opinion at 55-56. Plaintiffs complain, Pls. Mem. at 61, that the MEO did not receive high marks for the human resources / phase-in portion of its bid, one of several aspects of the MEO bid that was given low marks, even though the report by the technical evaluators “expressly states that the team’s rating is not based on any single finding or its impact, but rather represents the [team’s] judgment regarding all the findings of strengths and weaknesses and their impacts when considered together.” Neill Opinion at 29. Plaintiffs argue that Lockheed’s computer system should not have been rated higher than the MEO’s competing “OASIS” system, Pls. Mem. at 62, but Judge Neill rejected this argument, noting that the OASIS system was at the time “available in only sixteen of the . . . fifty-eight facilities in operation.” Neill Opinion at 73. “Furthermore,” explained Judge Neill, “the MEO has specifically stated that OASIS will require enhanced technology development.” Id. at 73-74. Accordingly, the higher rating of Lockheed’s system compared to the MEO’s OASIS system does not establish unfairness, much less age-motivated unfairness, towards the MEO.
Finally, plaintiffs also speculate that if the MEO had chosen different persons to make its oral presentation, they might have done a better job than the actual presenters. Pls. Mem. at 62-63. Groups and parties are often put to choices about who will be their spokespersons, and it may be natural that other members of a non-prevailing party’s team might guess that they could have done better (even those who do present arguments are often visited by l’espirit de l’escalier). Such second-guessing within the MEO team does not establish any bias on the part of the FAA, let alone bias due to age.
5. The FAA’s Hiring Decisions After the RIF Are Not Material To Any Claim Properly Raised In This Case And, In Any Event, Plaintiffs Have Not Shown Discrimination In Those Decisions
a. Any Question Of Discrimination In Post-RIF Hiring Decisions For Other FAA Positions Is Not Properly Before The Court
Plaintiffs ask the Court to imagine a “sleight of hand” by which the FAA “purged its ranks of its older workers, by RIFing all Flight Service Controllers and then selectively rehiring younger Controllers.” Pls. Mem. (Dkt. 265-3) at 6. But, if so, the discrimination would have occurred entirely, not in the indiscriminate RIF, but in the later “selective[ ]” hiring. And those hiring decisions are not at issue in this RIF case and are not properly before the Court. Plaintiffs’ notice of intent to file this civil action did not raise any claim of discrimination regarding the hiring of flight service specialists for other FAA positions. Defs. SJ Ex. 23 (Dkt. 256-25). Nor did plaintiffs’ Amended Complaint in this case assert any non-selection claims that post-October 2005 hiring decisions were discriminatory. Dkt. 3 (June 24, 2005). This Court accordingly lacks jurisdiction over such claims. See Defs. Mem. (Dkt. 256-1) at 38-41 (discussing issue and citing cases). Plaintiffs concede as much. Pls. Mem. at 6.
However, plaintiffs attempt to recast their hiring claims as somehow connected to their claim that they were adversely affected by the RIF. Plaintiffs assert that they “do not seek to challenge the retention and rehiring of younger Controllers as a personnel practice but simply to reveal it as a pretext.” Pls. Mem. at 6. This makes no sense. Defendants never averred that the opportunity to hire flight service specialists for other FAA positions was even a reason for the RIF. Not being even a proffered reason, it certainly cannot have been be a pretextual one. Plaintiffs’ talk of “pretext” is thus merely their own transparent pretext to rely on hiring decisions that they did not challenge administratively and that are immaterial to any issues in this case.
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Plaintiffs similarly attempt to justify addressing the hiring claims they did not make instead of the RIF claim they did by arguing “that firing all workers and rehiring exclusively younger workers is a slightly more sophisticated form of ridding oneself of the older workers, and is equally unlawful.” Pls. Mem. at 57 n.22. Again, the discrimination in any such scheme (sophisticated or otherwise) could only occur, by definition, not in what plaintiffs concede is the firing of “all” the workers, but in the alleged subsequent decisions to hire only younger workers. However, plaintiffs’ February 2005 notice of intent to file this lawsuit and their Amended Complaint (June 2005) simply did not challenge any such alleged discrimination in hiring, and did not put defendants on notice of a claim challenging post-October 2005 hiring decisions that were still in the future. This claim is not properly before the Court in this case. See, e.g., Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 920-21 (7th Cir. 2000) (where employer shut down mine and RIF’d hundreds of employees and later re-opened mine and rehired some employees, plaintiffs who had challenged only the RIF could not rely on allegation that employer discriminated on the basis of age in deciding which employees to rehire).22
b. Plaintiffs Have Not Shown That Hiring For Other Positions Was Discriminatory
Even if plaintiffs’ post-October 2005 hiring claims were properly before the Court, plaintiffs fail to present even a prima facie case. They do not show that the plaintiffs applied for but were not hired for those different kinds of positions were qualified or that the FAA otherwise in any way favored similarly situated younger employees in considering job applications. See, e.g., Aliotta v. Blair, 576 F. Supp. 2d 113, 128 (D.D.C. 2008) (finding former employees not similarly situated to those who obtained new positions and rejecting argument that agency conducted a RIF “as an elaborate ruse to flush the agency of senior staff”), motion to alter or amend judgment denied, 623 F. Supp. 2d 73 (D.D.C. 2009).
Plaintiffs’ argument that the FAA “selectively rehir[ed] its younger Controllers” rests on the report of Dale Belman. Plaintiffs argue that “Dr. Belman’s report demonstrates [that] most of those who were rehired were younger than 40.” Pls. Mem. at 64. Belman’s report demonstrates no such thing. Belman included no findings on the median age of flight service specialists hired into other FAA jobs after October 2005 and found instead that the mean age was either 45.04 or 46.77. Belman Rep’t, Pls. Mem. Ex. 2 (Dkt. 263-4) at 14.23
Indeed, Belman only compared: (1) the mean age of the flight service specialists subject to the RIF who were hired into other non-flight service specialist FAA jobs with (2) the mean age of flight service specialists subject to the RIF who were not hired into other FAA jobs. Belman Rep’t at 5-6, 14. However, Belman’s statistics reveal nothing about whether those hired by the FAA were older or younger than those who applied for the positions. Belman’s incomplete statistics are thus not probative of age discrimination. See Farris v. Clinton, 602 F. Supp. 2d 74, 84 (D.D.C. 2009) (statistics that fail to compare the proportion of qualified minority applicants to those chosen for senior-level positions “are not relevant to the question whether the defendant’s choice not to hire [plaintiff] was a pretext for unlawful discrimination”); Brown v. Small, 437 F. Supp. 2d 125, 136 (D.D.C. 2006) (“[P]laintiff has offered an array of numbers which, though accurate, have no meaning by themselves . . . [P]laintiff has failed to offer statistics . . . even comparing the hiring rates among black and white applicants relative to their respective presence in the applicant pool.”); Horvath v. Thompson, 329 F. Supp. 2d 1, 11 (D.D.C. 2004) (“[P]laintiff’s numbers are simply irrelevant” to disparate treatment analysis where “plaintiff fails to provide any information about the pool of available and qualified applicants” for positions sought).
Belman’s failure to compare the ages of those hired with the ages of those who applied is especially problematic here because most of the oldest flight service specialists would have been better off not applying for other jobs at the FAA after the RIF because they could make more money “double-dipping” by accepting federal retirement, going to work for Lockheed, and collecting both a Lockheed paycheck and a federal annuity. Supplemental Rep’t A of Defendants’ Expert William J. Carrington, Defs. SJ. Ex. 94 (Dkt. 256-96), ¶¶ 33-40.24
Belman’s statistics do not demonstrate disparate treatment in hiring decisions for another reason: the flight service specialists who did apply for continued FAA employment applied for diverse jobs around the country with different hiring criteria and different selection officials for each position. To the extent that some plaintiffs claim that they were not hired for these various positions, those plaintiffs must show that they were disadvantaged in favor of similarly situated younger persons who obtained the jobs for which they applied. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999). Neither Belman’s report nor any of the plaintiffs present evidence comparing their qualifications to those of the persons hired for the positions for which some of the plaintiffs may have also
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applied. In short, they have not shown that they were similarly situated to those who were hired for those positions. See Defs. SJ Mem. (Dkt. 256-1) at 43 (citing Aliotta v. Bair, 576 F. Supp. 2d 113, 128 (D.D.C. 2008) and Doan v. Seagate Technology, Inc., 82 F.3d 974, 979 (10th Cir. 1996)).
Plaintiffs also assert that “Charlene Argo testified in deposition that applications from former Flight Service Controllers, even those with Tower and En Route experience prior to age 31, are not accepted for most vacancy announcements,” and cite to an eleven-page section of Argo’s deposition testimony. Pls. Mem. at 65; Pls. Mem. Ex. 7 (Dkt. 263-9). But nothing in those eleven pages, or anywhere else in the deposition transcript, supports plaintiffs’ characterization of Argo’s testimony. Flight service specialists had the opportunity to apply for a variety of jobs at the FAA around the time of the RIF, and they were assisted in their job seeking by the FAA itself. See Defs. Response to Interrog. 24, Defs. Op. Ex. 8 (explaining activities undertaken by the FAA to assist flight service personnel with employment options). Plaintiffs make no claim that the career transition services were only available to the younger flight service specialists. The FAA also authorized special hiring programs to give priority to the displaced flight service specialists. Id. These programs allowed the flight service specialists to receive selection priority when applying for a variety of non-flight service jobs. Id.
Plaintiffs also argue that the agency did not allow plaintiffs to “bump” other employees out of their jobs through use of the “bump and retreat” regulations of 5 C.F.R. part 351. Pls. Mem. at 21, 64.25 However, those regulations apply in situations where an agency maintains employee positions within a given competitive area following a RIF, not where, as here, an agency vacates the entire competitive area. See 5 C.F.R. § 351.701 (agency shall offer a position “in the same competitive area”). The availability, or non-availability, of “bump and retreat” rights has no relevance to plaintiffs’ ADEA claim in any event. Where an employer terminates an employee for age-neutral reasons, the ADEA imposes no duty to transfer the employee to another position. E.g., Carswell v. Air Line Pilots Ass’n, 540 F. Supp. 2d 107, 117 (D.D.C. 2008); Ridenhour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986); Parcinski v. The Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982); Licausi v. Symantec Corp., 2009 WL 1873663, at *15 (S.D. Fla. June 30, 2009) (Rosenbaum, M.J.).
Finally, plaintiffs argue that the FAA refused to hire flight service specialists for other FAA positions in order to “guarantee a skilled workforce to the winning bidder.” Pls. Mem. at 67. The FAA guaranteed no such thing. To the contrary, one of the things the FAA carefully looked at in all the proposals was how the bidder proposed to attract workers that were not required to work for the winning bidder. E.g., Kansier Dep., Defs. SJ Ex. 72 (Dkt. 256-74), at 152; Little Dep., Defs. Op. Ex. 9, at 47, 121-22; Pls. PI Ex. 5 (Dkt. 10-7) at M.2 (“The Government will assess the degree to which the staffing support approach provides for recruitment and retention”); Neill Opinion, Defs. SJ Ex. 18 (Dkt. 265-20), at 23 (quoting at length FAA evaluation of the “incentives and benefits” Lockheed would offer to “enhance recruitment and retention”). The FAA did require Lockheed to offer the incumbent workers a limited-time “right of first refusal” for available Lockheed jobs, Courain Decl. (Dkt. 23-5) ¶ 25; Sturm Dep. (Dkt. 256-89) at 36-37, 53-54. But that requirement was a one-way street. The employees were not obliged to accept those offers. See Freed Dep., Defs. Op. Ex. 10, at 136-37. Plaintiffs’ theory is also belied by Lockheed’s recognition, Sturm Dep., Defs. SJ Ex. 87 (Dkt. 256-89), at 110, that it in fact faced competition from the FAA in the labor market.
6. Plaintiffs Fail To Rebut Defendants’ Proffered Reasons For Conducting The A-76 Study
a. The Demand For Flight Service Has Been In Long-Term Secular Decline
The RIF in 2005 followed a long period of decline in demand for the work done by flight service specialists. Plaintiffs charge that, by making that observation of the background facts, defendants write a “wholly new history of Flight Service” based on the “questionable premise that general aviation was in decline.” Pls. Mem. (Dkt. 256-3) at 31. But defendants’ brief cited hard data that squarely supports that premise. Defs. SJ Mem. (Dkt. 265-1) at 8-11. And the long-term decline in general aviation has been widely noted well beyond the confines of defendants’ opening brief. See, e.g., Matthew L. Wald, Up, Up, and . . . Never Mind, New York Times, Apr. 26, 2007, at G1 (“longtime private pilots fear that an industry is withering”).
Indeed, the decline in demand for flight services was one of the first things that John Hennigan (later Deputy Chief Financial Officer) noticed when he arrived at the FAA in 1991:
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So very early in my career at the FAA, I was aware that there was -- this was an interesting -- interesting part of the FAA that required analysis, and this happened every year. So in spite of the fact that the forecasts were generally that activity would increase every year, the activity in the flight service arena kept decreasing. This happened very early on and sort of was one of the things I noticed.
1st Hennigan Dep., Defs. SJ Ex. 65 (Dkt. 256-67), at 26. Similarly, the Core Architecture Group, Defs. SJ Ex. 6 (Dkt. 256-8) at 13, had observed in 1998 that there was no “reason to continue the current level of space requirements [for flight services] which were put in place in anticipation of growth” that did not materialize.
Defendants’ brief also noted a second reason why demand for the work done by specialists was declining, the growth of automated alternatives to work that formerly need a flight service specialist. Programs to obtain weather briefings and to file flight plans over the Internet became increasingly available and user-friendly. Global positioning system navigation assistance and streamed-to-the-cockpit satellite weather both became more widespread. And the use of instrumentation for weather observation largely displaced sensory observation by specialists. Defs. SJ Mem. at 11-13. This point that automation had made so many inroads on specialists’ work is not post-hoc invention for purposes of this litigation, but had long been documented. For example, the 2001 Inspector General report observed both that “[d]emand for flight services provided by flight services specialists has been declining steadily since the 1980s” and that such services “are increasingly being replaced by on-line flight services accessed directly by users.” 2001 IG Rep’t, Defs. SJ Ex. 7 (Dkt. 256-9), at 3. Similarly, the 1998 Core Group Report had noted that “[o]ne-on-one weather briefing demand is projected to continue to decrease as additional weather data is available via automated means and pilots become more comfortable with computers.” Defs’ SJ Ex. 6 (Dkt. 256-8) at P00765. And in 1997, the National Civil Aviation Review Commission had pointed out that “[c]onsolidation of Flight Service Stations and relying on expanded” use by pilots of computers “to provide pre-flight briefings, weather briefings, and flight plan filings could save the FAA over $1 billion over the next five years while maintaining or improving safety and existing services to the general aviation community.” NCARC Final Rep’t, http://www.library.unt.edu/gpo/NCARC/reports/ pepele.htm, Part II, § V.C. (last visited April 22, 2009) (“NCARC Report”).
In short, that demand for the work done by flight service specialists had been declining had been cited in reports long before the RIF at issue in this case.
b. The FAA Considered Compliance With The President’s Management Agenda To Be Important
Plaintiffs contend that compliance with the President Bush’s Management Agenda as a reason for competitive sourcing flight service does not “withstand [] serious scrutiny.” Pls. Mem. (Dkt. 265-3) at 69. But the question is not whether compliance with the President’s Management Agenda would have been plaintiffs’ reason for taking the action, or whether it would have been the Court’s reason, or even whether it would have been a good reason. The issue is only whether -- good reason or bad, correct or mistaken -- it was one of defendants’ actual reasons. E.g., Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
We can therefore assume arguendo that outsourcing would not have placed high on plaintiffs’ management agenda had they been elected to run the executive branch. But it was an important part of President Bush’s actual agenda in 2002. And Secretary Mineta in fact took the President’s Management Agenda “very seriously.” Mineta Decl., Defs. SJ Ex.40 (Dkt. 256-42) ¶ 6. Indeed, President Bush “expressed his interest directly” to Secretary Mineta. Id. It was thus important to the Secretary and the FAA that the agency pursue the goals the President had set out. Id. As Secretary Mineta described, “[i]n making decisions to meet the [President’s Management Agenda],” the agency was trying to “distinguish what functions should be kept in-house and what functions should be potentially outsourced.” Id. at ¶ 8 (also stating that in trying to comply with President’s Management Agenda, Mineta “did not consider the ages of the employees who would be potentially outsourced”). Plaintiffs may disagree with Mineta’s decision as a matter of policy. But there is no dispute what decisions he did make nor that, in making them, he was not motivated by age. See Mineta Decl. ¶¶ 6, 8. Whether right or wrong, whether plaintiffs (or even the Court) would have made the same decision, Mineta actually did consider compliance with the President’s Management Agenda to be vital.26
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One way in which “agencies were evaluated” was “how they were expanding opportunities to conduct public-private computations (competitive sourcing).” Id. at ¶ 7. In particular, agencies were under “pressure to save money and also to look at A-76,” a tool for competitive sourcing. Bertram Dep., Defs. SJ Ex. 47 (Dkt. 256-49), at 28-29. When the Office of Management and Budget (“OMB”) questioned the FAA’s funding request for flight service during the fall of 2001 in light of the Inspector General’s recommendation to consolidate and reduce the number of flight service offices, id. at 22-23, the FAA determined that “rather than do a consolidation [of flight service] and do A-76 on something else, to do one process for flight service,” id. at 28-29.
Contemporaneous communications by Chris Bertram, the Chief Financial Officer of the FAA, with FAA administrators further reflect the importance that complying with the President’s Management Agenda had on competitively sourcing flight service. In June of 2002,27 Bertram wrote to then-Administrator Jane Garvey that Bertram’s Office of Financial Services had “determined that the Flight Service Stations (FSS) function, except in Alaska, should be used to meet the OMB requirement” for what must be competitively sourced, and, therefore, had “engaged a contractor to perform a feasibility study to clarify the scope of the review” of the potential A-76 of flight service. June 19, 2002, Bertram Memo to Garvey, Defs. SJ. Ex. 10 (Dkt. 256-12). In a memorandum two months later to Acting Administrator Monte Belger, Bertram again stressed that considering flight service for competitive sourcing “is a central part of our effort to meet the requirements of” the President’s Management Agenda. August 21, 2002, Bertram Memo to Belger, Defs. SJ Ex. 11 (Dkt. 256-13) (informing Belger that Bertram had “accepted the results of [the feasibility study] and decided to proceed with a study of the FSS function” excluding Alaska).
Plaintiffs also argue that “FAA interest in complying with the [Agenda] extended only to the Flight Service.” Pls. Mem. at 71. As supposed support for this point, plaintiffs argue that the FAA did not meet what was at one time an OMB goal that agencies eventually consider competitive sourcing for the equivalent of 50 percent of their 2000 commercial workforce. Pls. Mem. at 33, 39 n.15, 72. However, OMB, which oversaw the compliance with the agenda, discarded the 50% benchmark by July of 2003, after the FAA had selected flight service to be considered for competitive sourcing. See Office of Management and Budget, Competitive Sourcing, 2003, Pls. Mem. Ex. 58 (Dkt. 256-46); see also Defs. SJ Mem. (Dkt. 256-1) at 19 n.20. In any event, the FAA’s large undertaking to competitively source flight service, see June 19, 2002, Bertram Memo to Garvey (“This effort will require at least 18 months, could easily cost in excess of $12 million . . ., and may result in serious personnel disruptions”), satisfied the previous benchmark of 15 percent. June 19, 2002, Bertram Memo to Garvey.
In short, plaintiffs adduce no evidence to discredit the central role that competitively sourcing flight service had in meeting the requirements of the President’s Management Agenda. Meeting that goal was an important actual reason for the agency’s decision.
c. A Desire To Save Taxpayers Two Billion Dollars In Unnecessary Expenditure Was An Actual Reason For The Challenged Decisions
In trying to establish that age was “the ‘reason’ that the [FAA] decided to act,” see Gross v. FBL Financial Services, 129 S. Ct. at 2350 (citation omitted), plaintiffs disparage the FAA’s efforts to save money by suggesting that the agency’s “vaunted concern with cost-savings” was not a true concern. See Pls. Mem. (Dkt. 265-3) at 69-71. Plaintiffs, however, concede that the FAA saved the taxpayers money by competitively sourcing flight service. They argue only that the FAA saved merely $1.2 billion, and that the FAA did not adopt other recommendations that might have saved money. See id. Whether the FAA has saved more than two billion dollars in competitively sourcing flight service, see Reforecast Estimation, Defs. SJ Ex. 22 (Dkt. 256-24) or merely more than a billion dollars is immaterial. The FAA intended to achieve considerable cost savings through competitively sourcing flight service. And it did achieve such savings. Id. (showing more than $2 billion in savings).
A desire to save money (even a mere billion or two) is certainly a valid reason for any agency to consider outsourcing. Indeed, “ ‘[w]hen private performance is feasible and no overriding factors require in-house performance, the taxpayer deserves and expects the most economical performance and therefore rigorous comparison of contract cost versus in-house cost should be used when appropriate to decide how the work will be done.’ ” National Federation of Federal Employees v. Cheney, 883 F.2d 1038, 1049 (D.C. Cir. 1989), quoting S. Rep. No. 96-144, at 4 (1979) (emphasis added). And, as plaintiffs concede, the FAA was under pressure during fiscal 2002 to save money. See Pls. Corrected Stmt. of Mat. Facts in Opp. to
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Defs.’ (Dkt. 265-5) at 15 (not responding to, and therefore admitting, Def. Stmt. Mat. Facts (Dkt. 256) ¶ 38); see also Bertram Dep., Defs. SJ Ex. 47 (Dkt. 256-49) at 28-29. The FAA determined that the A-76 process was “an established way of actually analyzing a function and trying to see how you could make it more efficient.” Id. at 32.
Plaintiffs’ attempts to discredit FAA’s efforts to save money are also belied by the evidence exchanged in discovery. The FAA made considerable efforts to save money outside of the context of flight service: for example, it consolidated its accounting operations from nine regional offices into a single center, centralized human resource and travel processing support from twelve locations into three, consolidated real property inventory and management into a single database, and reduced in half its number of wireless communications contracts. See Defs. Resp. to Pls Interrog. No. 13, Defs. Op. Ex. 13, at 28.
Similarly, this Court should reject plaintiffs’ invitation to second-guess whether some different consolidation method for flight service might have been an even better way to save money. As plaintiffs admit, several internal and external studies, conducted from 1996 through 2001, found that the FAA could provide AFSS services differently and in a more-cost effective manner. Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ (Dkt. 265-5) ¶ 21. And, they admit that these studies recommended that the FAA consolidate flight service stations. Id. ¶ 22, Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ ¶ 10. Plaintiffs further admit that a 1996 Inspector General report recommended that the FAA should “consider having the private sector provide the full range of flight services,” but claim that the 2001 Inspector General report suggested that consolidation should be accomplished through attrition. Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ ¶ 24. However, what plaintiffs ignore is that the Inspector General said in 2001 that its method was “one of many possible consolidation scenarios FAA could consider, since it is ultimately the agency’s decision to determine which facilities should be consolidated.” Office of the Inspector General Report (“2001 IG Report”), Defs. SJ Ex. 7 (Dkt. 256-9), at 5. Further, plaintiffs ignore the inherent difficulties of reorganizing flight service through attrition. Former Administrator Blakey highlighted those problems: The problem with using attrition as a way to realign your work force is that you do have to wait for the attrition to occur, number one. Number two, you do not know where it will occur, and it has no relationship to where you have the actual need for the service and where you have the need for the workforce. So the two things are out of alignment. That is very difficult to manage.
Number two, to be able to reassign people, you have to have funding and the ability and the willingness on the part of the workforce to move to where the needs are. Again, you will have alignment problems and difficulties with that.
The third thing is you will have a period of time in which you have to [retrain] people. If you are having to do that on a basis that is not predictable, it becomes a very difficult thing to do.
There are other problems as well, but the ones I am pointing out are ones that are very significant and they are ones that are very costly, and they do not necessarily go to achieving a cost-efficient service on the basis that would have achieved the kind of cost savings and the kind of service delivery that the current contract is delivering. You have to remember that the current contract is delivering roughly $2.1 billion of cost savings over a 13-year period. That is very significant by anyone’s standards.
Blakey Dep., Defs. SJ Ex. 48 (Dkt. 256-50), at 155:11-156:16. Finally, the FAA had experienced a previous round of consolidation and had found it to be a difficult process, 1996 IG Rep’t, Defs. SJ Ex. 3 (Dkt. 256-5), at 3; Jackson-Brame Dep., Defs. SJ Ex. 68 (Dkt. 256-70) at 89; Bertram Dep. 28, whereas the A-76 process was “an established way of actually analyzing a function and trying to see how you could make it more efficient,” Bertram Dep. 32.
In any event, the question of whether the agency exercised the best business judgment to meet pressures to save money and consolidate flight service is not a matter for a court to review. The “federal anti-discrimination statutes do ‘not authorize a federal court to become a superpersonnel department that reexamines an entity’s business decisions.’ ” Williams v. Dodaro, 576 F. Supp. 2d 72, 87 (D.D.C. 2008) (quoting Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999)); see also Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 956 (8th Cir. 2001) (because “a company’s exercise of business judgment is not a proper subject for judicial oversight,” when “a company exercises its business judgment in deciding to reduce its work force, it need not provide evidence of financial distress to make it a ‘legitimate’ RIF.’ ”) (internal quotations omitted). At the very least, the FAA’s considered business judgment that competitively sourcing flight service would result in substantial savings
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shows that age was not the “but-for” cause for the decision to solicit competing bids to make flight service more efficient and to get more bang for the taxpayer’s buck.

Conclusion
For the reasons stated in the Memorandum Supporting Defendants’ Motion for Summary Judgment and stated above, defendants’ motion for summary’ judgment should be granted and plaintiffs’ motion for summary judgment should be denied.

Footnotes

1

The pro se plaintiffs are in no better position. The represented plaintiffs’ brief indicated (page 75) that it was “submitted on behalf

of the Plaintiffs represented by the Gebhardt and Associates law firm,” and none of the other plaintiffs made any separate

submission opposing defendants’ motion for summary judgment.

In the remainder of this memorandum, references to arguments made by “plaintiffs” are intended to refer to the arguments made by

the represented plaintiffs, while references to “plaintiffs” as parties or persons affected by the RIF will generally include

unrepresented plaintiffs as well.

2

In support of a premise of Part I that the only personnel action at issue was the RIF, defendants argued in Part I.C.1 that any

post-RIF hiring decisions for other positions were, though personnel actions, not personnel actions properly at issue in this case,

and, in the alternative, in Part I.C.2 that those actions were in any event non-discriminatory. Plaintiffs actually do respond to the

alternative argument, Pls. Mem. (Dkt. 265-3) at 5-7, 57, 63. But they concede the first point, that the post-RIF hiring decisions are

not themselves adverse personnel actions that can be challenged in this case, id. at 6, which is the only thing defendants needed to

establish in Part I.C of the argument in order to support the premise of Part I that the only personnel action at issue in this case is

the RIF.

3

Plaintiffs’ cross-motion deals only with their disparate impact claim. Plaintiffs are not moving for summary judgment on their

disparate treatment claim.

4

Siskin was asked to analyze statistics given the arguendo assumption that the classifications of the workgroups were subject to

challenge, and Siskin’s statistical report therefore did not address the legal issues addressed by Parts I and II of the argument in

defendants’ opening brief. Siskin Rep’t ¶¶ 23-24. Thus, Siskin’s report provides plaintiffs with no assistance on those antecedent

legal issues.

5

The other “tests” that Siskin examined were the classification of which functions were inherently governmental or commercial and

which functions became subject to competitive sourcing among those deemed to be non-core to the FAA. Siskin Rep’t ¶ 33.

6

For an explanation of the functional differences between what we term “aircraft separating controllers” at en route centers and

terminals on the one hand and flight service specialists on the other, see, e.g., Turner Rep’t, Def. SJ Ex. 91 (Dkt. 256-93); Brydon

Dep., Defs. SJ Ex. 51 (Dkt. 256-53), at 30; Jackson-Brame Dep., Defs. SJ Ex. 68 (Dkt. 256-70), at 26-27; Sheridan Decl. (Dkt.

23-6) ¶¶ 7-8; Reyna Decl. (Dkt. 23-10) ¶ 6. The two types of jobs are not interchangeable. Reyna Decl. ¶ 6.

7

Plaintiffs rely on the pre-Gross decision in Forman v. Small, 271 F.3d 285, 296-97 (D.C. Cir. 2001). Pls. Mem. at 23-24. Forman

did not address the applicability of the RFOA. On the issue Forman did address (whether to recognize a cause of action for

retaliation), both section 623 and the federal-sector Title VII statute pointed in the same direction, see 271 F.3d at 296-97, so there

was no need for Forman to choose whether to follow Title VII even when a different rule in section 623 would be the more

appropriate fit for a federal-sector ADEA case.

8

More recently, this Court has noted in passing that “[d]isparate impact claims arise from employment practices that are facially

neutral in their treatment of different groups, but that fall more severely on one statutorily protected group than another in practice,

and which a defendant cannot justify by business necessity.” Hopkins v. Whipple, 2009 WL 1874076, at *6 (D.D.C. June 30, 2009)

(emphasis added). However, because Hopkins failed to exhaust his administrative remedies on his disparate-impact claim, 2009

WL 1874076, at *6-7, this Court had no occasion there to decide whether the available defense in an ADEA case is RFOA or

business necessity. Because Hopkins was raising both Title VII and ADEA disparate-impact claims, any justification for the

challenged practice would necessarily have had to satisfy the “business necessity” test under Title VII no matter what the standard

under the ADEA. In its brief, one-sentence summary of disparate impact that prefaced the failure-to-exhaust holding, this Court

thus understandably referred only to business necessity. Moreover, because that sentence is directly followed by a citation to Smith

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v. City of Jackson, which applied an RFOA defense, it should not be read as rejecting the applicability of an RFOA defense in a case, such as this one, where disparate-impact issues arise only under the ADEA.

9

A retirement plan at issue in that case was “integrated” with benefits under the Social Security system, 577 F. Supp. at 284, which

usually means that under-62 retirees get from the retirement plan alone benefits equivalent (adjusting for years of service and other

relevant factors) to what older retirees get from the combination of the retirement plan and Social Security (it is not entirely clear

from the opinion that that is what “integrated” did mean in Valaris, an uncertainty that accounts for the “appears” in the text and in

this footnote). Of course, that means that the retirement plan considered by itself paid more to workers under 62 than to older

workers with the same years of service. Because extra payments for white retirees or male retirees would violate Title VII, the

court assumed that such extra payments under the retirement plan for under-62 retirees would likewise violate the ADEA. But

Congress subsequently made it clear that such integration of retirement plans is not what Congress considers age discrimination.

That view that retirement-plan integration is not discriminatory has been codified into the private sector ADEA. 29 U.S.C. §§

623(l)(1)(a)(ii). However, the lack of a comparable express provision in the public sector ADEA does not mean that such

integration is discriminatory in the public sector. Congress itself writes retirement plans for federal employees, and only three years

after Valaris it incorporated as a centerpiece of the federal employee retirement system the very kind of supplemental payments for

under-62 retirees based on integration with Social Security that Valaris, by mistaken analogy to race and gender discrimination,

appears to have condemned as age discrimination. Compare Valaris with 5 U.S.C. § 8421.

10

This Court has ruled in this case that a disparate-impact claim is available against federal agency defendants. However, as this

Court has recently noted, the issue remains an open one in the circuit. Hopkins v. Whipple, 2009 WL 1874076, at *6 & n.3 (D.D.C.

June 30, 2009). Plaintiffs do not dispute that, if RFOA is the appropriate defense, defendants have met it. See Pls. Mem. (Dkt.

265-3) at 23-52. Thus, to prevail on appeal (when the existence of a cause of action for disparate impact will no longer be law of

the case), they will need to show (in addition to the showing they have not made that the FAA’s decision lacked justification) both

that a disparate-impact claim is available and that an RFOA defense is not available. That required combination showing is in

tension with Smith v. City of Jackson, which found that a disparate-impact claim was available in private-sector ADEA cases in

part because an RFOA defense was also available. 544 U.S. at 238-39. That inter-relationship between the question whether a

disparate impact claim is available at all and the question whether RFOA is an available defense need not be ignored by this Court

in deciding the latter issue.

11

The four disparate treatment cases are City of Los Angeles v. Manhart, 435 U.S. 702 (1978); Newport News Shipbuilding and Dry

Dock Co. v. EEOC, 462 U.S. 669 (1983); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071 (D.C. Cir. 1984); and Valaris v. Army

and Air Force Exchange Service, 577 F. Supp. 282 (N.D. Calif. 1983). The disparate-impact discussion in the fifth case cited by

plaintiffs is an alternative holding that follows a longer discussion of disparate-treatment issues, and does not discuss, let alone

adopt, plaintiffs’ discrimination-is-always-cheaper intuition. Segar v. Smith, 738 F.2d 1249, 1288 (D.C. Cir. 1984). The sixth case,

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999), is discussed in the text.

12

If the RFOA defense were not available in an ADEA disparate-impact case, then Wards Cove, rather than the 1991 amendments to

Title VII, would supply the controlling understanding of the business necessity test. Smith v. City of Jackson, 544 U.S. at 240; see

Meacham, 128 S. Ct. at 2404.

13

By contrast, as plaintiffs admit, see Pls. Corrected Stmt. of Mat. Facts in Opp. to Defs.’ (Dkt. 265-5) at ¶ 5, flight service

specialists do not separate aircraft from each other. With respect to flight service, the FAA determined that “private industry has

the capability and interest in performing the [flight service] function, and that having a private company do so would not

compromise aviation safety or homeland security.” See Memorandum from Bertram to Acting Administrator Belger (“Bertram

Memo to Belger”), August 21, 2002, Defs. SJ Ex. 11 (Dkt. 256-13) (accepting results of feasibility study); see also 1st Hennigan

Dep., Defs. SJ Ex. 65 (Dkt. 256-67), at 84 (“we commissioned a feasibility study in early 2002 . . . to verify if what we were saying

was accurate and if there was, among other things, private sector interest in doing this, capability to do this, and the lack of

compromise of our mission”).

14

Another test Siskin’s Report looked at was the distinction between which jobs were “inherently governmental” and which jobs,

like plaintiffs’ jobs, were not. Siskin Rep’t ¶ 25. Plaintiffs argue that their jobs should have been deemed “inherently

governmental” and not subject to outsourcing because (1) Executive Order 13180 refers to “provision of air traffic services” as an

“inherently governmental function,” and (2) the Executive Order must have meant to include flight services in that reference

because 5 U.S.C. § 2109(1) includes flight service specialists within the definition of “air traffic controller.” Pls. Mem. at 43-44.

There are at least six reasons why this argument is wrong, irrelevant, or both: First, 5 U.S.C. § 2109(1) itself expressly

distinguishes between flight service specialists and aircraft separating controllers “actively engaged (i) in the separation and control

of air traffic.” Compare 5 U.S.C. § 2109(1)(A)(i) with 5 U.S.C. § 2109(1)(A)(ii). Thus, the section simply does not say that flight

service specialists separate and control air traffic, and, to the contrary, recognizes that they do not. Second, by its own terms, 5

U.S.C. § 2109 supplies a definition only “[f]or the purpose of this title,” and an executive order is not part of that title. Section

2109 thus has no bearing on the Executive Order’s meaning. Unlike section 2109, Executive Order 13180 does not have a term

including “preflight” and other flight services in a definition of “air traffic controller,” and the scope of the order’s reference to “air

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traffic services” did not include flight service. Third, Executive Order 13180 did “not create any right or benefit, substantive or procedural, enforceable at law against the United States, its agencies, officers, or any person.” 65 Fed. Reg. 77493, 77494 (Dec. 11, 2000). Fourth, more than three years before the RIF, the reference in Executive Order 13180 to “inherently governmental” was removed by Executive Order 13264. 67 Fed. Reg. 39243 (June 7, 2002). Fifth, the FAA’s distinction between specialists and aircraft separating controllers is not a distinction based on age but a distinction on the basis of whether employees are actively engaged in separating and controlling air traffic. See, e.g., Turner Rept., Defs. SJ Ex. 91 (Dkt 256-93). Sixth, in any event, Siskin found that the FAA’s division of its workforce into jobs that were or were not inherently governmental did not have a statistically adverse impact on older workers, and that in fact (at least as a statistical matter) it “favored older workers,” Siskin Rep’t at table 5 (emphasis supplied).

15

Gross was a private-sector case, but this Court has recognized that its holding applies in cases in which a federal agency is the

defendant. Glenn v. Bair, 2009 WL 2430627, at *4 (D.D.C. Aug. 10, 2009); Smith v. Napolitano, 2009 WL 1740520, at *5 (D.D.C.

June 22, 2009).

16

Contrary to plaintiffs’ suggestion, Pls. Mem. at 57, statistics regarding plaintiffs’ disparate impact claim have no bearing on their

disparate treatment claim. The two theories of liability test different things. Compare Siskin Rep’t, Defs. SJ Ex. 96 (Dkt. 256-98) ¶

4 with id. ¶ 17. Disparate treatment looks at whether an employer treated someone less favorably because he or she is in a protected

class while disparate impact looks at whether an employment action that is neutral in its treatment falls more harshly on a protected

class. See International Broth. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977); see also Menoken v. Whipple, 605 F.

Supp. 2d 148, 153 (D.D.C. 2009) (“The Supreme Court has consistently recognized a distinction between discrimination claims

based on disparate impact and discrimination claims based on disparate treatment”).

17

Department of Transportation and Related Agencies Appropriations for 1998: Hearing Before the Subcomm. on Transportation

and Related Agencies of the H. Comm. on Appropriations, 105th Cong. 48 (1997) (statement of Michael F. McAnaw); Department

of Transportation and Related Agencies Appropriations for 2002: Hearing Before the Subcomm. on Transportation and Related

Agencies of the H. Comm. on Appropriations, 107th Cong. 471 (2001) (statement of Wally Pike).

18

Higher-level FAA officials, who had to consider the competing needs of all the FAA’s functions, and Office of Management and

Budget officials who had to consider competing needs across the entire spectrum of demands on the public fisc, did not necessarily

agree. E.g., Blakey Dep., Defs. Op. Ex. 4, at 72 (“a half-billion dollars [per year for flight service] is a lot of money. That came out

to almost $25 for every communication with a pilot at that point.”)

19

Plaintiffs note that Bertram used the word “we” in describing the work of the FAA’s finance office that he headed, see Pls’

Statement of Material Facts in Opp. to Defs.’ at 14-15 (citing Bertram Dep. 32), but it does not matter whether Bertram made the

decision to subject flight services to the A-76 process with input from his subordinates or on his own. Either way, Bertram was the

decision maker. See Bertram Memorandum to Administrator, June 19, 2002, Defs. SJ. Ex. 10 (Dkt. # 256-12). In any event, the

uncontradicted evidence shows that Bertram’s deputy, John Hennigan, also did not consider age, 1st Hennigan Dep., Defs. Ex. 65

(Dkt. 256-67), at 164-65, and plaintiffs cannot point to any evidence showing that anyone in Bertram’s office both played a central

role in any decision and considered age.

20

Similarly, Neill found that there was no pattern of favoritism shown toward Lockheed. Neill Opinion at 67.

21

Plaintiffs would discount Judge Neill’s decision because he did not have information about how well or (in plaintiffs’ view) badly

Lockheed has subsequently been performing on the contract. Pls. Mem. at 62 n.25. But that is a reason for, not against, giving issue

preclusive effect to that decision. After all, in reviewing agency decisions for possible bias, the courts are supposed to “beware of

using 20/20 hindsight,” Fischback v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (emphasis

added). Judge Neill’s decision, closer in time to the decisions of the agency officials (who likewise had no information postdating

2005), is less, not more, likely to be infected by hindsight than any later re-evaluation of the same issues.

22

Further, many of the plaintiffs do not have standing to challenge the FAA’s hiring practices around the time of the RIF because

they did not apply for jobs at the FAA during this time. Wells v. United States, 578 F. Supp. 794, 796 (D.D.C. 1983) (“[F]ailure of

the plaintiff to apply for a job with the defendant agency deprived the plaintiff of standing to sue the agency for discriminatory

hiring practices.”). Many other plaintiffs do not have standing to assert a failure to hire claim because they were in fact hired by the

FAA for the positions to which they applied. See id.

23

The mean age of the represented plaintiffs, about 49 as of late 2005 (see McDaniel Decl., Defs. SJ Ex. 39 (Dkt. 256-41)), is not

much higher. See Breen v. Mineta, 2005 WL 3276163, at *4 (D.D.C. Sept. 30, 2005) (“[A]n age difference of less than ten years is

not sufficient to support a prima facie inference of age discrimination.”)

24

Plaintiffs attempt to downplay the number of older specialists who were retirement-eligible by arguing that it is “manifestly

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untrue” that many specialists were “retirement-eligible . . . since only 356” of the specialists “qualified for the full ATC [air traffic control] retirement toward which they had been working.” Pls. Mem. at 37 n.13. Plaintiffs’ own statement is manifestly misleading. The exhibit to which they cite, Pls. Mem. Ex. 3 (Dkt. 265-6), shows that there were also 556 “optional” retirements, which is precisely the kind of retirement that the oldest of the retirement-eligible specialists would have received and that, for them, was just as good as what plaintiffs call “full ATC retirement.” Here is why: Most federal employees hired before 1984 are covered by the Civil Service Retirement System (“CSRS”). Under CSRS, the annuity of an air traffic controller is computed under the same rules as for other employees except that it may not be less than 50% of the employee’s average pay. 5 U.S.C. § 8339(e). Under the normal CSRS retirement rules, the benefit calculation reaches a 50% annuity after twenty-six years and eleven months of service. See 5 U.S.C. § 8339(a). To retire with an “optional” retirement, a non-air traffic CSRS employee would ordinarily need thirty years of service at age 55 or twenty years of service at age 60 or five years of service at age 62. 5 U.S.C. § 8336. Thus, once an air traffic controller reaches either age 55 with thirty years of service or age 60 with more than twenty-six years and eleven months of service, it no longer makes any practical difference under the CSRS whether service has been as an air traffic controller or not. Once either of those age/service-year milestones is reached, the annuity calculation is the same and the retirement eligibility requirement is met no matter how many or how few years of service were as an air traffic controller. Thus, for many of the oldest flight service specialists (those either born before October 1950 who had been continuously serving since XX/XX/1975 or earlier or those born before October 1945 who had been continuously serving since November 1978 or earlier) their retirements would have been the ordinary “optional” retirements, not the special “ATC retirement” that (with respect to CSRS) made a difference only for younger retirees. See, e.g., Pike Dep., Defs. Op. Ex. 6, at 15, 19, 26 (specialist born in 1947 and hired by FAA in 1973 retired in 2005 with enough air traffic control service for ATC retirement but received “standard” rather than ATC retirement); Williams Dep., Defs. Op. Ex. 7 at 110 (in discussing plaintiffs’ exhibit 3, noting that retirees who met “full” retirement features under CSRS would not be “an ATC retirement at all”). Thus, in supposing that only “full ATC retirement[s]” are the measure of how many of the specialists were able to retire, plaintiffs fail to count the oldest specialists who received “optional” retirements and have had the largest retirement benefits.

25

Those regulations do not directly apply to the FAA, which instead uses the standards set forth in FAA Order 3350.2c, Staffing

Adjustments and Reductions In Force (Oct. 17, 1994).

26

Plaintiffs spend more than a dozen pages (Pls’. Mem. at 40-52) rebutting an argument defendants did not make, namely what

plaintiffs call defendants’ “ad hoc Reason Code analysis,” Pls. Mem. at 31 (not citing any part of defendants’ brief). Plaintiffs’

own extended reason code analysis is beside any material point. Reason codes ultimately reflect agency decisions -- and some of

those decisions were important -- but reason codes themselves do not make policy decisions. 1st Hennigan Dep., Defs. Ex. 65 (Dkt.

256-67), at 84-85. Plaintiffs stress that FAA employee Ronald Page collected reason code data, Pls. Mem. at 42, 47, and they ask

(id. at 46) who can decide that a function falls within reason code “A,” which is used in listing positions involved in core agency

functions. The answer to that question, found in material plaintiffs block quote, is that “ ‘[t]his reason code is designed to permit

the Agency Head to identify specific commercial activities as those that he/she does not believe should be subjected to

privatization, outsourcing or competition.’ ” Id. at 41, quoting Pls. Mem. Ex. 11 (Dkt. 263-11) (original emphasis omitted by

plaintiffs restored). Page was not the agency head. He was Mineta’s subordinate’s subordinate’s subordinate’s subordinate’s

subordinate’s subordinate. See Page Dep., Defs. Op. Ex. 11, at 28-29; Defs. SJ Ex. 31 (Dkt. 256-33); Sturgell Dep., Defs. Op. Ex.

12, at 11-14; 1st Hennigan Dep., Defs. Ex. 65 (Dkt. 256-67), at 18, 23. For that reason, defendants focus in the text on Mineta’s

decision that air traffic separating controllers performed core functions, not on how quickly or accurately Page’s inventory

reflected that decision. The document for which Page was gathering reason codes was “an inventory document and not a

dispositive policy document about what you would do.” 1st Hennigan Dep. at 84 (emphasis added); see also Page Dep. at 75

(reason codes supplied to him by other agency employees were subject to higher-level review).

27

Prior to June 2002, the FAA had established a team “to figure out what the next steps in the A-76 process were, and to start that

process.” Bertram Dep. at 36.

26

 
 Case 1:05-cv-00654-PLF Document 309 Filed 09/30/16 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN BREEN, et al., Plaintiffs, v. ANTHONY FOXX, SECRETARY OF TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, et al., Defendants.

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Civil Action No. 05-cv-654 (PLF)

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PLAINTIFFS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

2178556.1

Case 1:05-cv-00654-PLF Document 309 Filed 09/30/16 Page 2 of 26
TABLE OF CONTENTS
Page
FACTUAL BACKGROUND ......................................................................................................... 2
ARGUMENT .................................................................................................................................. 4
I. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ DISPARATE TREATMENT CLAIM ....................................................... 4 A. Defendants’ Statements Show That Age Was a Factor in the Decision to Outsource Flight Service......................................................................................... 5 B. The Procedural Irregularities in the FAA’s Decisions Leading Up to and Following the RIF Show That the FAA’s Proffered Reasons Were Pretextual ................................................................................................................ 7 1. The Designation of Flight Service as a Non-Core Function, a Necessary Pre-Condition to Outsourcing These Workers, was Neither Required by the PMA nor Consistent with the FAA’s Own Procedures................................................................................................... 7 2. The Terms of the Contract the FAA Entered with its Consultant to Assess the Feasibility of Outsourcing Flight Service Created an Incentive to Ensure that the Consultant Would Support Outsourcing this Function......................................................................... 11 3. The FAA Ensured the Failure of the Alternative Option to Outsourcing the Flight Service Function, Which Would Have Permitted the FSCs to Remain Employed and Retain their Retirement Rights ..................................................................................... 11 4. The FAA Ignored Other Consolidation Proposals That Did Not Require Laying Off FSCs ......................................................................... 13 5. The FAA Deviated from the Bump-and-Retreat Process to Ensure FSCs Could Not Stay in the Agency ........................................................ 14
II. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ DISPARATE IMPACT CLAIM .............................................................. 14 1. There is No Dispute that the FAA’s Classification of Flight Service as a Non-Core Function Had an Adverse Impact on Older Workers ....... 15 2. Regardless of the Standard Prescribing the Defense the FAA Must Present, the Evidence Adduced by Plaintiffs Either Rebuts the Defense or Creates Genuine Issues of Material Fact ................................ 16 3. Defendants’ Justification for the Actions Challenged Here Do Not Satisfy the Business Necessity Test .......................................................... 18 4. Even If the Reasonable Factor Other Than Age Defense is Available, Defendants Fail to Satisfy It .................................................... 20
CONCLUSION............................................................................................................................. 20
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TABLE OF AUTHORITIES
Page
CASES
Aliotta v. Bair, 614 F.3d 556 (D.C. Cir. 2010) .................................................................................................16
Anderson v. Duncan, 20 F. Supp. 3d 42 (D.D.C. 2013) (J. Collyer)..........................................................................16
Breen v. Peters, 474 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................................18
Christie v. Foremost Ins. Co., 785 F.2d 584 (7th Cir. 1986) ...................................................................................................13
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998) .....................................................................................................6
Evans v. Atwood, 38 F. Supp. 2d 25 (D.D.C. 1999) .............................................................................................14
Evans v. Sebelius, 716 F.3d 617 (D.C. Cir. 2013) .............................................................................................7, 10
Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010) .......................................................................................4, 17, 18
Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001) .................................................................................................18
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)...................................................................................................................5
Jones v. D.C., 273 F. Supp. 2d 61 (D.D.C. 2003) .............................................................................................7
Lehman v. Nakshian, 453 U.S. 156 (1981).................................................................................................................17
Matuskey v. Medlantic Healthcare Grp., 1997 WL 161952 (D.D.C. Apr. 3, 1997) (Friedman, J.) ...........................................................7
May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997). Dkt. 256 ...................................................................................7
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TABLE OF AUTHORITIES Page
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)...................................................................................................................4
Smith v. City of Jackson, 544 U.S. 228 (2005).................................................................................................................17
Staub v. Proctor Hosp., 562 U.S. 411 (2011)...................................................................................................................6
United States v. Utah Constr. & Min. Co., 384 U.S. 394 (1966).................................................................................................................13
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).................................................................................................................16
Wilson v. Cox, 753 F.3d 244 (D.C. Cir. 2014) ...................................................................................................6
STATUTES 5 U.S.C. § 2109(1) .......................................................................................................................2, 8 29 U.S.C. § 623a (2012) ..........................................................................................................16, 17 29 U.S.C. § 633a (2012) ....................................................................................................16, 17, 18 OTHER AUTHORITIES 5 C.F.R. § 351.402 (2016) .............................................................................................................14 29 C.F.R. § 1625.7(e)(1) (2015) ....................................................................................................20 65 Fed. Reg. 77493 (Dec. 11, 2000) ............................................................................................2, 8
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In 2005, the Federal Aviation Administration (“FAA” or “Agency”) conducted a Reduction in Force (“RIF”) that left the nearly 2,300 air traffic controllers of the Flight Service1 workgroup—about 92 percent of whom were age 40 or older at the time—jobless and without the option to remain employed with the FAA, due to the peculiar manner in which the FAA carried out the RIF. Although publicly hailed by Agency officials as a neutral action to save money, the RIF and the circumstances and decisions surrounding it reveal a process that was wrought with irregularities, inconsistencies, and signs of age-based animus that can only be reasonably explained as intentional discrimination. Additionally, it is undisputed that critical decisions giving rise to the RIF of Flight Service had a disparate impact on older workers, as demonstrated by overwhelming statistical disparities. The RIF, coupled with the general inability of these older workers to remain employed with the FAA, wreaked havoc on the lives of the FSCs, many of whom were only a few years shy of obtaining their pension benefits at the time the FAA proceeded with its mass layoff. More than a decade later, Plaintiffs, a group of former FSCs, continue in their longstanding pursuit of relief—and closure—in this matter.
Presently before the Court is Defendants’ 2009 motion for summary judgment as to Plaintiffs’ disparate treatment and disparate impact claims. As explained more fully below, Defendants have not, nor can they, demonstrate the absence of genuine disputes of material fact bearing on Plaintiffs’ claims and their asserted defenses. Accordingly, Defendants’ motion should be denied.
1 Flight Service Controllers (“FSCs” or “Flight Service”) are air traffic controllers who provided preflight, inflight and airport advisory service to aircraft operators. FSCs also initiated and coordinated search and rescue services, issued advisories of temporary flight restrictions and “outages” in National Airspace System and of local hazard condition, and separated planes from bad weather. Pls. Mot., Dkt. 262, Ex. 22 (Dkt. 265-14), at D00242, D00253-55; Attached Ex. 1, Pike Dep. 175.
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FACTUAL BACKGROUND

While the facts underlying this action have been advanced in prior briefing,

Plaintiffs set forth below the evidence and facts central to their opposition to Defendants’

motion:

1. The President Directed Agencies to Compete Functions Typically Performed by the Private Sector, but Flight Service Was Not One of These Functions

•

In 2002, pursuant to a Presidential Management Agenda (“PMA”), federal agencies were

directed to use the Office of Management and Budget (“OMB”) Circular No. A-76 to

select job functions that could be outsourced.2 Dkt. 256-9; Office of Management and

Budget (OMB) Circular No. A-76 (Revised 1999), August 4, 1983 [hereinafter OMB A-

76]; Circular No. A–76 Revised Supplemental Handbook (Revised 2000), March 1996

[hereinafter OMB Handbook].

•

The OMB directed agencies to put up for public-private competition those job functions

already available in the private sector. Dkt. 265-45 at 4. The PMA specifically identified

tasks such as data collection, administrative support, and payroll services, as examples of

functions readily available in the private marketplace and, thus, appropriate for

outsourcing. Dkt. 256-9, at 17.

•

FSC jobs did not exist in the private sector until they were outsourced by the FAA

because they required highly specialized skills and served the nation’s national security.

Dkt. 265-11, Kansier Dep. 118; Dkt. 263-20, Sturm Dep. 21; Dkt. 263-22, at P01288.

2. The FAA Departed from Normal Procedures Governing Outsourcing In Order to Ensure Only Flight Service Was Submitted to an A-76 Competition and that Its Jobs Were Outsourced to the Private Sector Rather than Remain Within the Agency

•

Historically, the President and Congress treated Flight Service as an important

governmental function closely related to other Air Traffic Controller (“ATC”) functions.

65 Fed. Reg. 77493 (Dec. 11, 2000); 5 U.S.C. § 2109(1).

•

Before jobs can be outsourced, they must be classified as non-core (i.e., not essential to

an agency’s mission), rather than core. See FAIR Act, The White House,

https://www.whitehouse.gov/omb/procurement_fairact (last visited September 28, 2016);

Dkt. 263-14; Dkt. 265-8, Hennigan Dep. 71-72.

2 Unless attached to the instant brief, all documents were previously submitted with the parties briefing and are identified by docket number. Documents not already in the record are attached as exhibits to this brief.
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•

While FAA managers had decided in late 2001 that Flight Service should be outsourced

pursuant to an A-76 competition, it did not classify all Flight Service jobs as non-core

until September 2002. Dkt. 265-7, Jackson-Brame Dep. 94-96, 199-200; Dkt. 265-9,

Hennigan Dep. 40; Dkt. 265-10, Page Dep. 21-23, 74-75, DD003770-73; Dkt. 265-42,

Nimmo Dep. 39; Dkt. 256-38, Hennigan Decl. ¶ 6; Attached Ex. 2, Nimmo Dep. 40.

•

Ronald Page, whom the FAA charged with implementing the A-76 requirements, created

a list of workgroups eligible for outsourcing, but Flight Service was not on this list. Dkt.

265-10, Page Dep. 22-23, D003770-73.

•

After the FAA had already determined Flight Service jobs could be outsourced in 2001,

the FAA hired Grant Thornton, an outside contractor, in 2002 to determine whether

Flight-Service functions could be performed by private contractors. Dkt. 265-7, Jackson-

Brame Dep. 94-96; Dkt. 265-9, Hennigan Dep. 40; Dkt. 256-38, Hennigan Decl. ¶¶ 14-

15.

•

While Grant Thornton was retained to conduct an independent study, its contract with the

FAA provided that Grant Thornton would be paid at least an additional $1.5 million per

year, for up to five years, to assist with the A-76 competition if Grant Thornton

concluded that Flight Service was suitable for outsourcing. Dkt. 265-47.

•

In July 2002, Grant Thornton concluded that Flight-Service could be outsourced. Dkt.

265-15, at D00253-55. The next month, the FAA announced that Flight Service would

go through an A-76 competition. Dkt. 256-12.

•

As part of the A-76 bidding process, the FAA was required to formulate an alternative

proposal, known as the Most Efficient Organization (“MEO”), that would achieve

significant cost savings but retain the jobs within the Agency rather than outsourcing

them. OMB Handbook, at 10. But the FAA imposed limitations on the MEO proposal

that handicapped the MEO’s ability to compete with the outsourcing option. Dkt. 265-

26, Dodson Dep. 43-48, 89-90, 160-162 (collectively, identifying evidence of the

competitive disadvantages). See also discussion infra at 11-13. In addition, an FAA

manager told one Plaintiff in December 2004, while the Agency was still allegedly

considering the MEO, that the Agency would award the Flight Service contract to a

private bidder “no matter what.” Attached Ex. 3, Bowman Decl.

•

By choosing to outsource a function with no private sector analogue, workforce, or

private-sector history, the FAA elected to guarantee a workforce to Lockheed Martin

when that company won the A-76 bidding process. Dkt. 265-11, Kansier Dep. 118, 160;

Dkt. 263-20, Sturm Dep. 21. In doing so, the FAA took steps to prevent FSCs from

remaining within the Agency by preventing them from exercising their bump-and-retreat

rights. See discussion infra at 14.

3. The Age of Most FSCs was a Factor in the Decision to Outsource These Jobs

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•

FAA Administrator Marion Blakey, who oversaw the A-76 competition, cited the “aging

workforce” of the FSCs as a reason to subject the Flight Service job function to

outsourcing. Attached Ex. 4, Blakey Dep. 98-99.

•

Administrator Blakey told Union president Kathleen Breen that retraining FSCs for new

positions would not be worthwhile because they were old and close to retirement. Dkt.

265-24, Breen Dep. 101; Dkt. 265-25, Malon Dep. 131; Attached Ex. 5, Breen Dep. 160.

•

Administrator Blakey also told a Flight Service worker, Homer McCready, that he could

not be rehired because he was too old. Attached Ex. 6, McCready Decl.

•

On average, employees holding FSC jobs were older than the other ATC workgroups and

the other FAA employees as a whole. Dkt. 263-3, Report of Prof. Dale Belman, 1-5

(Mar. 13, 2008).

ARGUMENT

I. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ DISPARATE TREATMENT CLAIM

There are genuine issues of material fact as to whether direct evidence shows that age

played a role in the decision to terminate the FSCs through the RIF and whether the irregularities

in the process leading up to the layoffs creates an inference of pretext. These issues can only be

resolved through trial, and therefore summary judgment should be denied.

The authority governing consideration of these claims comes primarily from Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), and Ford v. Mabus, 629 F.3d 198 (D.C.

Cir. 2010). Reeves makes clear that evidence that the defendant’s proffered reason for the

adverse employment action is pretextual may be sufficient to demonstrate discrimination.

Reeves, 530 U.S. at 146-49. Ford, issued after earlier briefing in this case, establishes a more

exacting standard to assess federal government employment discrimination claims than had been

previously recognized. Ford, 629 F.3d at 206-07. Considered according to these authorities, the

evidence set forth below would allow a reasonable factfinder to hold that “consideration of age

was a factor in the challenged personnel action.” Id. at 200.

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A. Defendants’ Statements Show That Age Was a Factor in the Decision to Outsource Flight Service
There is a clear dispute of material fact as to whether the age of the Flight Service workforce played a role in the decision to outsource that group. While FAA Administrator Marion Blakey denied in deposition that age was considered in outsourcing this group, Attached Ex. 4, Blakey Dep. at 46-47, in a more candid moment, during an Automated Flight Service Station (“AFSS”) Managers Conference in 2004, the minutes reflect that Ms. Blakey expressed concern about Flight Service’s “aging workforce,” id. at 98-99. Not surprisingly, Ms. Blakey denied making the statement that the minutes recorded. Id. at 99.
Likewise, the head of the FAA’s Office of Competitive Sourcing, Joann Kansier, who oversaw the outsourcing process, listed “aging workforce” in PowerPoint presentations to the OMB and the Air Traffic Controllers Association (“ATCA”) as a primary reason for selecting Flight Service for the A-76 competition. Dkt. 265-12, at P001128, P001155, D007311, D007314, D007682, D007686; Attached Ex. 7. Again not surprisingly, in later iterations of this explanation in a slide presentation and on the FAA web page, the explanation for this action was rephrased more euphemistically as “retirement eligible workforce.” Dkt. 265-12, at P00003, D007189, D007193, P004428. In addition to admitting in deposition that she had offered “aging workforce” as an explanation for selecting Flight Service for competition, Ms. Kansier then added that the group was “disgruntled,” Attached Ex. 8, Kansier Dep. 167, as another rationale for the action, resorting to the type of “inaccurate and stigmatizing stereotype[] about older workers” that the ADEA forbids. Hazen Paper Co. v. Biggins, 507 U.S. 604, 604 (1993).
In deposition, FAA Administrator Blakey confirmed that reference to the “aging workforce” did not simply mean the FSCs were “retirement eligible.” Attached Ex. 4, Blakey Dep. at 89-90. Instead, Blakey explained that “aging workforce” meant it would be difficult to
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recruit and retrain new workers when the older workers retired. Id. at 90. Like Ms. Kansier, Ms.
Blakey, therefore, engaged in impermissible stereotyping by assuming an “aging workforce”
would retire. And, as she was well aware the FAA was not replacing retiring FSCs with younger
ones, id. at 84, her expressed concern over difficulty in training new FSCs was just not credible.
Thus, Blakey admits that by initially labeling these workers as an “aging workforce,” the FAA
regarded the age of the FSCs, by itself, as a rationale for outsourcing them.3
In less public settings, Ms. Blakey was more candid about why the FSCs were being
removed. In a meeting with Union President Kathleen Breen and Union negotiator Scott Malon,
Ms. Blakey said that retraining FSCs for new positions would not be worthwhile because of their
age. Dkt. 265-24, Breen Dep. 101; Attached Ex. 5 Breen Dep.160; Dkt. 265-25, Malon Dep.
131. She also told one Plaintiff that he could not be rehired because he was too old. Attached
Ex. 6, McCready Decl. As the D.C. Circuit recently concluded, assuming an older worker will
retire rather than continue to work creates an inference of bias. See Wilson v. Cox, 753 F.3d 244,
246, 248 (D.C. Cir. 2014).4
3 Defendants go to great lengths to point out that an aging FSC workforce was simply a symptom of the decline in private aviation and use of the Flight Service program. Dkt. 268 at 2425. But an explanation why the FSCs were older does nothing to refute the evidence that age was a factor in the decision to subject them to the RIF.
4 Seeking to discount this incriminating evidence, the FAA contends that, as the FAA CFO and Deputy CFO selected the Flight Service for competition, bias cannot be inferred from anyone other than them. Defs. Mem., Dkt. 256, at 75. The decision at issue here, of course, was the product of input from a number of people at the FAA. As the Supreme Court observed recently about the workplace today, multiple managers are often involved in personnel decisions, and bias they harbor may taint a personnel decision if the decision maker relied upon it. See Staub v. Proctor Hosp., 562 U.S. 411, 420 (2011). Indeed, Ms. Blakey set up the Office of Competitive Sourcing and testified that she was the Agency official “overall responsible” for the Agency’s actions. Attached Ex. 4, Blakey Dep. 143-46. Nor can the PowerPoint presentation made to the OMB and ATCA be discounted as simply the stray remarks of a rogue manager, as it was presented as the rationale for a stated policy of the Agency. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354–55 (6th Cir. 1998).
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While this evidence alone may be sufficient to demonstrate that age was a factor, at the
very least it presents genuine issues of material fact about whether the decision was biased.
B. The Procedural Irregularities in the FAA’s Decisions Leading Up to and Following the RIF Show That the FAA’s Proffered Reasons Were Pretextual
The FAA has sought to justify its outsourcing of Flight Service by contending it was
mandated by the PMA and it saved taxpayers money. Dkt. 268 at 37-46.5 But outsourcing this
group of workers was hardly required by the PMA, and outsourcing other groups would have
achieved significant costs savings. Indeed, in outsourcing Flight Service, the FAA departed from
its own procedures and those set forth in the PMA, creating the inference that the proffered
rationale for this action was pretext. See Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013)
(an employer’s “failure to follow established procedures or criteria” is evidence of pretext).
1. The Designation of Flight Service as a Non-Core Function, a Necessary PreCondition to Outsourcing These Workers, was Neither Required by the PMA nor Consistent with the FAA’s Own Procedures
The decision that Flight Service was the only workgroup suitable for outsourcing was at
odds with prior FAA practice, the practice of other agencies, and guidance from the OMB and
the PMA.
First, the designation of Flight Service as a non-core function, a prerequisite to deciding
to outsource the Service, ignored the longstanding treatment of this Service as an important
5 Defendants also argue that a RIF of an entire work function, including both old and young workers, is incapable of being challenged under the ADEA, citing May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997). Dkt. 256 at 33-35. Defendants grossly misstate May. The May Court made no determination that the RIF was unchallengeable, but only that the plaintiffs had improperly compared their age to the age of the workers in the non-defendant company to which they had been RIFed, rather than the defendant company. May, 129 F.3d at 173. Defendants also ignore that this Court has permitted ADEA claims when an older worker is RIFed along with younger ones. Matuskey v. Medlantic Healthcare Grp., 1997 WL 161952, at *4 (D.D.C. Apr. 3, 1997) (Friedman, J.) (permitting ADEA claim where 61% of RIFed employees were over the age of 40). See also Jones v. D.C., 273 F. Supp. 2d 61 (D.D.C. 2003) (permitting Title VII claims by female former employees where male employee was also part of RIF).
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governmental function. The President’s Executive Order 13180 creating the Air Traffic Organization explicitly describes all Air Traffic Control functions, including FSCs, as “inherently governmental.” 65 Fed. Reg. 77493 (Dec. 11, 2000). In defining these functions, Congress also viewed FSCs and other ATCs as equals. See 5 U.S.C. § 2109(1) (2012). Yet, despite the essential role Flight Service played and continues to play in ensuring flight safety, the FAA decided to label Flight Service non-core while designating as core all other air traffic functions that Congress regarded as equally essential. The timing of the classification of Flight Service as non-core, moreover, raises the question whether an ulterior motive was behind the designation. FSCs as a group were classified as non-core only after the FAA decided to subject FSCs to competition. Dkt. 262 at 32-33, 41, 43. Indeed, Ronald Page, whom the FAA charged with implementing the A-76 requirements, testified that a list of workgroups eligible for outsourcing listed Flight Service as core, but was inexplicably changed to non-core after leaving his office. Dkt. 265-10, Page Dep. at 21-23, 74-75, D003770-73.
Second, Defendants’ contention that Flight Service was one of only a few workgroups large enough to satisfy the PMA requirements is simply untrue. The PMA does not require that agencies limit the workgroup outsourced to a single work function. Dkt. 256-9. Nor was this the practice of other agencies. In 2003, the OMB listed the commercial activities that had been put up for competition by five other agencies. Dkt. 265-45. None of these agencies put up one individual workgroup for competition, and all of the agencies as large as or larger than the FAA selected between four and eight groups. Id.
Third, the choice of Flight Service to outsource was at odds with the types of jobs the PMA described as suitable for competition. The PMA directs that agencies choose jobs for outsourcing that are already performed in the private sector, such as payroll and data collection.
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Dkt. 256-9, at 17. The OMB provided the same guidance, and provided a list showing the types of commercial activities selected for competition by five other agencies: Human Resources, Administrative Support, Property Maintenance, Data Processing, and Payment Processing, all functions already performed in the private sector. Dkt. 265-45, at 4, 6. See also Attached Ex. 9, Memorandum for Heads of Departments and Agencies (May 23, 2005) (citing with approval the Bureau of Engraving and Printing rationale for designating printers as a core function because they “have specialized knowledge” and “are in short supply in the private sector”). There is no dispute that FSCs had specialized knowledge and were unavailable in the private sector. Dkt. 265-11, Kansier Dep. 118. In fact, there were other workgroups within the FAA that had a workforce available in the private sector, such as administrative support, IT management, and property maintenance and repair. Dkt. 263-2, Siskin Report Table 1. That the FAA selected Flight Service rather than other workgroups normally regarded as suitable for outsourcing also calls into question the real reason for this selection.
Indeed, the FAA compiled lists of other workgroups suitable for outsourcing but never appeared to give them serious consideration. Joann Kansier, head of the FAA’s Office of Competitive Sourcing, prepared a list of outsourceable commercial functions typically found in the private sector, including Human Resources Management and Computer Support. Dkt. 26546. No action was taken on these activities. Dkt. 265-31, Little Dep. at 59-64.6 And Mr. Page
6 The FAA may argue that it was simpler to outsource one function that included over 2,300 employees rather than multiple functions, each containing fewer employees. Yet by outsourcing Flight Service, the FAA chose to undergo the largest and most complex A-76 outsourcing ever done, employing a process far more complicated than would have been necessary had it outsourced jobs with private sector analogues. Dkt. 265-12, Kansier Dep. 11719.
Nor does the FAA’s transfer of its computerized payroll and HR processing functions to the Department of Interior demonstrate it has taken steps to comply with the PMA, as the FAA contends. Dkt. 256-64, Gibson Dep. 41-43. This limited transfer is hardly comparable to the
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also created a list of 11 outsourceable workgroups, including two groups that alone had enough
employees to satisfy the PMA (Administrative Support and Maintenance Tech), and one nearly
that large (Program Implementation), but did not list Flight Service. Dkt. 265-10, Page Dep. 22-
23, D003770-73.7 Nonetheless Flight Service, which had no private sector analogue, was
selected for outsourcing.
Fourth, the FAA’s claim that outsourcing the Flight Service function was mandated by
the PMA is belied by its failure to adhere to the process prescribed by the PMA. While the PMA
directed each agency first to compete 15% of its full-time employees (“FTEs”) and then compete
another 35% (50% total), the FAA abandoned the A-76 process after it hit the first benchmark
and terminated its FSCs. Dkt. 265-45, at 4-5; Dkt. 256-11; Dkt. 265-16, Bertram Dep. 62-63.
The FAA’s failure to adhere to the PMA protocol calls into question the credibility of the FAA’s
defense that outsourcing the Flight Service function was mandated by the same PMA it declined
to follow after the Flight Service jobs were outsourced. See Evans, 716 F.3d at 620.8
outsourcing that the A-76 process required. But transferring of these functions to another government employer, which were indisputably not core functions, confirms that the FAA understood that jobs related to these functions could be outsourced through an A-76 process.
7 Defendants’ expert relied on a different list of workgroups, provided by the FAA, that was pre-ordained to lead to the conclusion that Flight Service was the only single outsourceable workgroup. Dkt. 263-2, Siskin Report, Table 1. For example, Page’s list contained an Administrative Support group, a “function [that] involves general office work … [and] clerical and routine administrative procedures and office skills,” with 1,750 employees (enough to satisfy the PMA). Dkt. 265-10, D003771. The list Defendants provided their expert contained many smaller Administrative Support groups, with at most several hundred FTEs in each, and even fewer that are listed as outsourceable.
8 Defendants’ contention that the OMB “discarded” the 50% target in 2003, relieving the FAA from any obligation to follow it, is false. Dkt. 268 at 42 (citing OMB, Competitive Sourcing, July 2003). Rather than eliminate the 50% benchmark, as the FAA contends, OMB simply created an incentive system: agencies moved from a score of “red” to “yellow” when they competed 15% of their FTEs, and from “yellow” to “green” when they competed 50% of their FTEs. Dkt. 265-45 at Attachment B. Nothing in the OMB’s new approach relieved the FAA, which supposedly took the PMA “very seriously,” Dkt. 256-41, Mineta Decl., ¶ 6, from proceeding to reach the 50% level.
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Accordingly, there was nothing inevitable or even logical about designating Flight Service as non-core, and targeting this highly specialized workforce—most of whose major functions had never been performed commercially—deviated from the direction provided by the OMB, the PMA and the practice at other agencies.
2. The Terms of the Contract the FAA Entered with its Consultant to Assess the Feasibility of Outsourcing Flight Service Created an Incentive to Ensure that the Consultant Would Support Outsourcing this Function
The terms of the contract the FAA entered with Grant Thornton posed a clear conflict of interest. Defendants defend their decision to outsource the Flight Service function by relying upon a 2002 study undertaken by the consultant company Grant Thornton, which concluded the Flight Service function could be outsourced. But Grant Thornton was hardly a disinterested arbiter of this question, as the FAA included in the contract the provision of business worth approximately $1.5 million annually for up to five years if Grant Thornton determined that contracting out Flight Service was feasible. Dkt. 265-47.9 This large financial incentive provided to an allegedly independent arbiter is evidence that the proffered basis for the RIF is pretextual.
3. The FAA Ensured the Failure of the Alternative Option to Outsourcing the Flight Service Function, Which Would Have Permitted the FSCs to Remain Employed and Retain their Retirement Rights
The FAA was required to formulate an alternative to outsourcing the Flight Service function, (the “MEO”), in order that its feasibility could be considered in a competitive process. See OMB Handbook at 10. The MEO would have consolidated the Flight Service program but kept it within the Agency, permitting FSCs to retain their pensions and retirement benefits, as
9 Also indicative of a conflict of interest is the fact that Joann Kansier went to work for Grant Thornton right after directing the Office of Competitive Sourcing. Attached Ex. 8, Kansier Dep. 41.
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well as the right to find alternative suitable employment within the federal government (“bumpand-retreat”). Dkt. 265-26, Dodson Dep. 143-45. The FAA took steps to ensure this alternative would fail.
The testimony from multiple witnesses reveals that the FAA made a concerted effort to ensure that the terms and presentation of the MEO in the competition process would not compare favorably with the private sector options. First, the HR representative assigned to assist in the development of the MEO proposal was also working with the FAA’s internal Office of Competitive Sourcing which oversaw the bidding process to ensure impartiality, a conflict of interest prohibited by the A-76 Circular. Dkt. 265-26, Dodson Dep. 49. Second, the HR representative failed to provide the assistance in preparing the transition package necessary to ensure it offered a feasible alternative to outsourcing, resulting in the package being downgraded by the technical evaluators. Id. at 48-50. Third, the FAA delayed its bargaining with the Union over the terms of the RIF procedures and possible rehiring procedures, which resulted in the Union’s existence being deemed a risk in the evaluation of the MEO proposal. Id. at 52-53; Dkt. 265-25, Malon Dep. 65, 71-72, 74-76, P05667-68. Fourth, FSCs knowledgeable about the duties of the Flight Service jobs were prohibited from speaking at the “orals” in which the bidders explained their proposals, resulting in findings that the MEO presentation was deficient. Dkt. 265-26, Dodson Dep. 43-48; Dkt. 263-12, Jackson-Brame Dep. 208-09. Fifth, the FAA refused to waive the requirement setting a mandatory retirement age for FSCs at 56, although it had authority to do so, but allowed private bidders to waive this requirement. Attached Ex. 10. The evidence that the FAA handicapped the option that could have permitted the FSCs to remain in the federal service, retain their retirement benefits, and increase their years of government
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service provides another basis on which a reasonable fact finder could conclude its proffered
defense is pretextual.10
Additional evidence corroborates that the FAA was predisposed to outsource Flight
Service. Marilyn Jackson-Brame, Deputy Director of the Office of Competitive Sourcing, told
Plaintiff Angela Bowman that the Office was instructed to award the contract for Flight Service
to a private contractor “no matter what.” Attached Ex. 3, Bowman Decl..11
4. The FAA Ignored Other Consolidation Proposals That Did Not Require Laying Off FSCs
There were numerous alternative avenues, in addition to the MEO, by which the FAA
could have achieved significant cost savings, none of which required contracting out Flight
Service to a private entity and stripping FSCs of their pensions and benefits. Dkt. 256-5,
Coopers & Lybrand Report, at D004846-51; Dkt. 265-29, Flight Service Architecture Core
Group Report, at P00758-76; Dkt. 256-8, 2001 Inspector General Report, at P00141-58. Nor did
the FAA take any action on another consolidation proposal from the FSCs Union. Attached Ex.
1, Pike Dep. 118, 128. While the FAA disputes how different the proposal submitted to this
Court is from the draft presented to FAA Administrator Blakey, that dispute cannot be resolved
at this juncture. Dkt. 263-44; Dkt. 268-1 at 16-17.
10 The FAA is wrong in asserting that the issues before this Court were already decided by an ALJ that rejected a challenge to the FAA’s decision to grant the Flight Service contract to Lockheed Martin. Dkt. 256 at 87-89. An agency decision has preclusive effect only if the agency resolved the disputed facts before it. United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966). None of the facts presented here were before the ALJ, as the issue presented in that forum was entirely different than the issues in dispute here. The ODRA proceeding addressed whether the FAA had properly examined and rated the MEO bid; the issue here is whether the FAA handicapped the MEO bid and whether the FAA’s actions create an inference that its proffered defenses are pretextual.
11 The FAA asks the Court not to second guess the choice of private contractor. Dkt. 268 at 30. Plaintiffs, however, challenge the process leading to outsourcing the Flight Service function, not the selection of a contractor itself, which was the inevitable result of the biased process the FAA created. See Christie v. Foremost Ins. Co., 785 F.2d 584, 587 (7th Cir. 1986).
13
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5. The FAA Deviated from the Bump-and-Retreat Process to Ensure FSCs Could Not Stay in the Agency
Typically, when federal employees are subject to a RIF, they may bump and retreat into another Agency position in their “competitive area.” 5 C.F.R. § 351.402 (2016). Rather than define the competitive area as a “geographical location,” id., the FAA defined it for FSCs as each individual Flight Service station. Dkt. 263-23; Dkt. 265-25, Malon Dep. 102; 2006 MSPB LEXIS 4491 at *5. When these stations were shut down and turned over to Lockheed, there were no positions to which FSCs could bump and retreat. Denying bump-and-retreat rights in order to preclude workers from remaining in federal service can be evidence of pretext. Evans v. Atwood, 38 F. Supp. 2d 25, 32 (D.D.C. 1999). II. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ DISPARATE IMPACT CLAIM For several reasons, Defendants fail to demonstrate they are entitled to summary judgment on Plaintiffs’ disparate impact claim. First, there is no dispute that the decision to designate Flight Service as a non-core instead of a core function had an adverse impact on older FSCs, including Plaintiffs. As the decision to classify Flight Service as a non-core function made it available for outsourcing pursuant to the A-76 process and ultimately led to the RIF of Plaintiffs, there should be no dispute that Plaintiffs have established a prima facie case of disparate impact. Second, while there is a dispute over the legal standard governing the burden of proof the FAA must satisfy after Plaintiffs establish a prima facie case, under either the more rigorous business necessity test or the reasonable factor other than age (“RFOA”) standard, Plaintiffs have propounded evidence that either rebuts the reasonableness of Defendants’ actions or, at minimum, raises genuine issues of material fact bearing on the reasonableness of their actions.
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Third, even if Defendants can demonstrate the reasonableness of their actions, Plaintiffs
can show that alternatives were available that would have had a less adverse impact on Plaintiffs.
Accordingly, Plaintiffs’ disparate impact claims should resolved at trial.
1. There is No Dispute that the FAA’s Classification of Flight Service as a NonCore Function Had an Adverse Impact on Older Workers
Plaintiffs challenge as an integrated course of conduct the process by which FSCs were
removed from their jobs at the FAA—which began with, and was governed by, the designation
of the Flight Service function as non-core. Defendants’ own expert, Bernard Siskin, found that
the designation of Flight Service as a non-core function, compared to other workgroups, had an
adverse impact on older workers at a level of significance of 19.73 standard deviations.12 Dkt.
268, at 6-7 (acknowledging that the designation caused a “statistically significant age-based
disparity in this case”); see also Dkt. 262 at 18-19; Dkt. 271 at 11-14. It was this decision to
classify Flight Service as non-core that led to the workgroup being RIFed. See supra at 7-10.13
This evidence alone should suffice to establish a prima facie case of discrimination, as
Plaintiffs “need only offer statistical evidence of a kind and degree sufficient to show the
12 Siskin also found a statistically significant disparity at 14.79 standard deviations between the ages of RIFed FSCs and the total workforce of the FAA. See Dkt. 262 at 14-21 and Dkt. 271 at 11-14. Defendants also argue that the disparity is not meaningful, as the outsourcing of Flight Service was inevitable given its size and function, compared to other workgroups. While this argument, which is belied by the facts as false, supra at 18-20, may be Defendants’ purported explanation for the disparity, it does not negate Plaintiffs’ prima facie showing.
13 Confronted by indisputable evidence that its classification of the Flight Service function had an overwhelmingly disparate effect adverse to older workers, the FAA seeks to portray the classification decision as somehow divorced from the RIF to which it led. See, e.g., Dkt. 256 at 49; Dkt. 268 at 2. The FAA, of course, cites no authority to support this remarkable proposition and, in any event, the evidence shows that the classification decision was an integral part of the actions leading to the RIF of the FSCs. See supra at 7-12 (describing evidence that the FAA decided that Flight Service function would be outsourced before it designated it as noncore; the FAA guaranteed the FSCs would be available in the private sector to the successful bidder of the A-76 competition prior to designating Flight Service as non-core and outsourcing it); see also Dkt. 262 at 30-50 (similarly collecting evidence). At the very least, the extent of the interrelationship between these steps in the process presents a genuine issue of material fact.
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employment decision disproportionately impacts older employees.” Aliotta v. Bair, 614 F.3d 556, 565 (D.C. Cir. 2010). See also Dkt. 271, at 9-14.
2. Regardless of the Standard Prescribing the Defense the FAA Must Present, the Evidence Adduced by Plaintiffs Either Rebuts the Defense or Creates Genuine Issues of Material Fact
As evidence exists demonstrating that the FAA’s integrated classification decision and subsequent RIF had an adverse effect on older workers, the burden shifts to Defendants to support their actions in a manner that satisfies the governing legal standard. See generally Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989). While the parties differ over the legal standard by which to assess the sufficiency of the FAA’s defense, the evidence shows either that Defendants fail to satisfy either standard or that there is a genuine issue of material fact as to whether those standards have been satisfied. See Dkt. 271 at 19-31; Dkt. 268 at 7-11.
While there is no definitive authority as to whether the FAA must satisfy the business necessity test or the RFOA standard, see Aliotta, 614 F.3d at 561 n.4, the structure of the ADEA and the D.C. Circuit’s interpretation of 29 U.S.C. § 633a (2012) favor application of the more demanding business necessity test. First, the structure of the ADEA may be dispositive of the choice of standards to govern the FAA’s defense of claims under Section 633a. While the ADEA provision prohibiting discrimination in the private sector permits employers to assert a RFOA as a defense, the provision prohibiting discrimination in the federal sector does not provide for that defense. Compare 29 U.S.C. § 623a (2012), with 29 U.S.C. § 633a (2012). Whatever Congress intended federal agencies to assert as their defense to claims under section 633a, plainly it did not intend to permit the defense of a RFOA.14
14 Notwithstanding the Supreme Court’s authority that Congress patterned Section 633a after Title VII, a district court judge has found otherwise. See Anderson v. Duncan, 20 F. Supp. 3d 42, 62-64 (D.D.C. 2013) (J. Collyer).
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Second, while the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005), interpreted the ADEA provision governing private sector employers, Section 623a, its reasoning is instructive here. There, the Court rejected the more demanding business necessity test, associated with Title VII of the Civil Rights Act of 1964, as governing an employer’s defense because of the RFOA provision provided in Section 623a. Id. at 233. As there is no RFOA provision in Section 633a, which governs the pending claims, the Court’s reasoning leads to the conclusion that the Title VII standard that would otherwise govern the defense of disparate impact claims—the business necessity test—should apply here.15 That test, as the Court explains, requires the FAA to demonstrate the action it took was reasonably necessary to its legitimate interests and that no other options were available that would have had less adverse impact on its older workers. Smith, 544 U.S. at 243.16
This interpretation of the ADEA Section 633a is consistent with the D.C. Circuit’s interpretation of this provision in Ford v. Mabus. See 629 F.3d at 205-06. There, the Court held that Congress intended to create a more exacting standard to assess federal government employment discrimination claims under the ADEA. Rather than subsume the federal government in the definition of “employer” applicable to the private sector under Section 623a, Congress chose to “deliberately prescribe[] a distinct statutory framework applicable only to the federal sector.” Id. at 205. This fact, coupled with the broad “free from discrimination”
15 See also Lehman v. Nakshian, 453 U.S. 156, 166–67 (1981) (summarizing the legislative history of Section 633a and finding that “Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector, and one based not on the FLSA but, as already indicated, on Title VII . . . .”).
16 Plaintiffs also incorporate by reference arguments advanced in prior briefing on application of the business necessity test to disparate impact ADEA claims against federal sector employers. See Dkt. 262, at 22-50 and Dkt. 271, at 19-29.
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language of Section 633a17 led the Court to conclude that plaintiffs seeking to establish disparate

treatment claims under the ADEA need only show that age was a factor in the challenged

conduct. Id. at 206-07; see also supra at 3-4 (explaining the impact of Ford on ADEA disparate

treatment claims). This reasoning should apply equally to disparate impact claims arising under

Section 633a, as the provision makes no distinction between theories of discrimination, and the

language reflects an intention of Congress that this provision “reach more broadly in the federal

sector than in the private sector.” Forman v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001).

3. Defendants’ Justification for the Actions Challenged Here Do Not Satisfy the Business Necessity Test
As evidence in the record directly rebuts the reasons Defendants have proffered for their

classification of Flight Service as a non-core function and the ensuing RIF of Plaintiffs and

shows less discriminatory options were available, there are genuine issues of material fact as to

whether Defendants have satisfied the business necessity test. See Dkt. 262 at 22-50 and Dkt.

271 at 19-31 (collecting authority). Indeed, upon review, the balance of the evidence tips

decidedly against Defendants’ satisfaction of the business necessity test.

First, Defendants justify their classification of Flight Service as non-core and their

selection of the Flight Service function for competition as necessary to cut costs, and that private

industry had the capability and capacity to perform this function. Dkt. 268 at 14-16. However,

evidence in the record directly refutes these proffered business justifications, including:

•

The FAA had already decided to outsource Flight Service before designating it as a non-

core function. See Dkt. 262 at 38-50; see also supra at 7-14.

17 This Court employed a similar analysis when it held Plaintiffs could pursue a disparate impact claim in this action. See Breen v. Peters, 474 F. Supp. 2d 1, 6 (D.D.C. 2007) (finding that “the text of Section 633a broadly prohibits any discrimination based on age”). As this Court has already decided the availability of a disparate impact claim against Defendants, Defendants have agreed that the ruling is law of the case and is no longer disputed in this forum. See, e.g., Dkt. 268, at n.10.

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•

There were inconsistencies in the RIF process, and FSCs were similar to ATCs, which

remained a core function. See Dkt. 262 at 38-50; see also supra at 7-12.18

•

The estimated cost savings were grossly exaggerated and could have been achieved

without adversely affecting older workers. Dkt. 262, at 69-71 and Dkt. 271 at 28-30.

•

The PMA and the OMB directed agencies to compete functions performed in the private

sector; Flight Service was not such a function. Supra at 8-10; see also Dkt. 262 at 33 and

Dkt. 271 at 30.

Moreover, as the evidence shows, Defendants had available several less discriminatory

alternatives that would have achieved the desired cost savings without an adverse impact on

older FSCs. Such evidence includes:

•

The FAA could have selected the MEO or other proposals and achieved significant cost

savings. Supra at 11-14; see also Dkt. 262 at 68-72 and Dkt. 271 at 30-31.

•

Ronald Page created a list of outsourceable functions, but Flight Service was not one of

them. Supra at 3-8; see also Dkt. 262 at 49-50.

•

Outsourcing a single large workgroup that had no private-sector analogue was not the

practice of other agencies. Supra at 8-9; see also Dkt. 256-46 at 6.

•

The FAA could have offered FSCs their bump-and-retreat rights, thus forcing Lockheed

to offer benefits desirable enough to cause FSCs to voluntarily leave federal service.

Supra at 14; see also Dkt. 262 at 33, 64-65, 69.

Together this evidence calls into question whether the FAA can demonstrate its actions

were reasonably necessary to a legitimate interest and that there were no other options available

that would have had less adverse impact on the older workers. While this evidence may be

sufficient to warrant judgment for Plaintiffs, at the very least it presents genuine issues of

material fact that preclude summary judgment against Plaintiffs.

18 Contrary to Defendants’ assertion, Plaintiffs have never argued that the FAA should have classified the other controller groups as non-core and outsourced those groups. See Dkt. 268 at 14-15. Plaintiffs argue, instead, that there is no legitimate business reason for the FAA to treat Flight Service differently from the other controller groups. See Dkt. 271 at 13 nn.10 & 11.
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4. Even If the Reasonable Factor Other Than Age Defense is Available, Defendants Fail to Satisfy It
While it is hard to conceive of how the RFOA defense is available to the FAA, as Congress omitted it from the section of the ADEA that applies to federal agencies, the FAA would be unable to satisfy it. To qualify for the RFOA defense, Defendants must demonstrate that the factor other than age on which they purport to rely is “objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA. . . .” 29 C.F.R. § 1625.7(e)(1) (2015).
Evidence here shows that Defendants’ proffered justifications for its actions were not reasonable for an employer “mindful of its responsibilities under the ADEA.” See Section I. A. supra at 4-14 (collecting evidence of (1) the FAA’s predetermination that Flight Service would be selected for competition and outsourced before the process was initiated; (2) rationales for the decision to select Flight Service for competition and to outsource it that were internally inconsistent and at odds with the PMA and OMB directives; (3) various competitive handicaps placed on the MEO that ensured the proposal would not be selected and that older FSCs would be RIFed; and (4) the FAA’s denial of meaningful bump-and-retreat rights for the FSCs, which had the effect of forcing the workers into the private sector and out of the Agency altogether.
Accordingly, the Defendants’ motion for summary judgment on the disparate impact claim should be denied.
CONCLUSION For the foregoing reasons, Defendants’ motion for summary judgment should be denied in its entirety.
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Dated: September 30, 2016

Respectfully submitted,

s/ Joseph M. Sellers Joseph M. Sellers, Bar No. 318410 Shaylyn Cochran, Bar No. 1012977 Brian Corman, Bar No. 1008635 COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. Suite 500, East Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 jsellers@cohenmilstein.com

s/ Gary M. Gilbert Gary M. Gilbert, Bar No. 15808 Linda A. Kincaid, Bar No. 416936 Stephanie M. Herrera, Bar No. MD17994 Lisa R. Sandoval, admitted pro hac vice Michal Shinnar, Bar No. MD0033 THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C. 1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910 Telephone: (301) 608-0880 Facsimile: (301) 608-0881 Gary@ggilbertlaw.com

Attorneys for Plaintiffs

21
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Case 1:05-cv-00654-PLF Document 309 Filed 09/30/16 Page 26 of 26 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via the CM/ECF electronic filing system on this 30th day of September, 2016, and thereby served upon the parties and/or their counsel.
By: /s/_Joseph M. Sellers________________ Joseph M. Sellers
2178556.1

 
 Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN BREEN, et al., Plaintiffs,
v.
ANTHONY FOXX, SECRETARY OF TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 05-cv-654 (PLF) ) ) ) ) ) )

PRIVACY ACT PROTECTIVE ORDER 1. Defendants are authorized to release government records and other information covered by the Privacy Act, 5 U.S.C. § 552a, as set forth in this Order without obtaining the prior written consent of the individuals to whom such records or information pertain. 2. The scope of this Protective Order covers government records and other information currently in the possession of the United States that contain the social security numbers of individuals listed in Attachment A of Plaintiffs’ January 13, 2017 Unopposed Motion for Entry of Privacy Act Protective Order. 3. Those documents that Defendants identify as containing information subject to the Privacy Act or containing the social security numbers of individuals are hereinafter referred to as “Covered Documents.” All information subject to the Privacy Act and the social security numbers of individuals solely derived from Covered Documents, even if incorporated in another document or compilation, are hereinafter referred to as “Covered Information.”
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Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 2 of 8
4. Covered Documents and Covered Information may be used only for the purposes of this civil action and any appeals thereof, and shall be limited for the purpose of finding updated contact information for those listed in Attachment A of Plaintiffs’ January 13, 2017 Unopposed Motion for Entry of Privacy Act Protective Order. All Covered Documents and all copies thereof must be returned to Defendants or their counsel or destroyed by Plaintiffs’ counsel within 60 days after the termination of this civil action and any appeals thereof. Any pleadings or other court filings created or filed by Plaintiffs or their counsel that contain Covered Information and are retained by Plaintiffs or their counsel as part of their litigation files remain subject to the terms of this Protective Order. Any other documents created by Plaintiffs or their counsel, or anyone working with them or on their behalf, that contain Covered Information must be destroyed by Plaintiffs’ counsel or returned within 60 days after the termination of this civil action and any appeals thereof. Plaintiffs’ counsel will certify to Defendants’ counsel after the termination of this civil action and any appeals thereof that such documents have been returned or destroyed.
5. Covered Documents shall be marked by Defendants prior to production as “PRODUCED SUBJECT TO PROTECTIVE ORDER”, “SUBJECT TO PROTECTIVE ORDER”, or contain a similar marking. For any Covered Documents, such as computer data, whose medium makes such stamping impracticable, the diskette case and any accompanying paper or e-mail cover letter shall be marked "PRODUCED SUBJECT TO PROTECTIVE ORDER", "SUBJECT TO PROTECTIVE ORDER", or contain a similar marking. Except as provided in paragraph 6 below, no person who obtains access to Covered Documents or Covered Information pursuant to this Protective Order shall disclose those records or that information without further order of the Court.
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Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 3 of 8
6. Plaintiffs’ counsel may only disclose Covered Documents and Covered Information to (a) the Court and its personnel, including court reporters; (b) the attorneys of record for the parties and persons regularly in the employ of such attorneys who have a need for Covered Documents or Covered Information in the performance of their duties; (c) employees of Defendants; and (d) outside contractors hired to use the individuals’ social security numbers for the sole purpose of locating and contacting these individuals. Any disclosure by the plaintiffs or their counsel and anyone working with them or on their behalf shall be made only for litigation purposes related to this civil action and any appeals thereof.
7. Any person listed in paragraph 6 (except the Court, Defendant’s employees, and the parties’ counsel) to whom disclosure of Covered Documents or Covered Information is to be made must sign the Acknowledgment of Privacy Act Protective Order attached hereto before disclosure.
8. The plaintiffs and their counsel shall not disclose Covered Documents or Covered Information to any persons except to those indicated in paragraph 6 without obtaining the prior express written approval by or on behalf of Defendants. If Defendants do not consent to disclosure, then Plaintiffs may, on motion, seek modification of this Order from the Court.
9. All individuals to whom Covered Documents and Covered Information are disclosed by the plaintiffs or their counsel shall return any and all records and copies thereof in their custody, possession, or control to plaintiffs’ counsel upon termination of this civil action, including any appeals thereof or when they are no longer assigned or retained to work on this case, whichever comes earlier.
10. Those portions of any filings with the Court that include Covered Documents
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Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 4 of 8

or Covered Information shall be made under seal. Those portions of any depositions in

which any such information is revealed shall be placed under seal.

11. The designation, or failure to designate, any materials as Covered Documents

or Covered Information shall not constitute a waiver of any party’s assertion that the

materials are covered by this Order.

12. Each party reserves the right to seek to modify the terms of this Order at any

time, and each party reserves the right to oppose any motion to modify the terms of this

Order.

13. This Order does not constitute a ruling on the question of whether any

particular record is properly discoverable or admissible and does not constitute a ruling on

any potential objection to the discoverability of any record, other than objections based on

the Privacy Act.

14. Nothing in this Order shall be constructed as limiting the right of either party

to introduce Covered Documents or Covered Information into evidence at trial, subject to the

Rules of Evidence and such privacy protections as the presiding Judge may deem

appropriate.

Upon consideration of the Unopposed Motion of the Defendants, and pursuant to the

Privacy Act of 1974, 5 U.S.C. § 552a(b)(11) and Federal Rule of Civil Procedure 26(c), IT

IS HEREBY ORDERED that the above Order is entered.

This

day of January, 2017.

BY THE COURT:

2203830.1

PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE
4

Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 5 of 8

AGREED TO: FOR PLAINTIFFS:

s/ Joseph M. Sellers
Joseph M. Sellers, Bar No. 318410 Shaylyn Cochran, Bar No. 1012977 Brian Corman, Bar No. 1008635 COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. Suite 500, East Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 jsellers@cohenmilstein.com
s/ Gary M. Gilbert Gary M. Gilbert, Bar No. 15808 Linda A. Kincaid, Bar No. 416936 Stephanie M. Herrera, Bar No. MD17994 Michal Shinnar, Bar No. MD0033 THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C. 1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910 Telephone: (301) 608-0880 Facsimile: (301) 608-0881 Gary@ggilbertlaw.com

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Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 6 of 8

FOR DEFENDANTS:

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
CHANNING D. PHILLIPS United States Attorney
JOSHUA E. GARDNER Assistant Branch Director
/s/ Elizabeth Kade ELIZABETH KADE (D.C. Bar 1009679) BRIAN G. KENNEDY (D.C. Bar 228726) ADAM D. KIRSCHNER LISA ZEIDNER MARCUS United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20530 Tel.: (202) 616-8491 Fax: (202) 616-8470 Email: Elizabeth.L.Kade@usdoj.gov

6
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Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 7 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN BREEN, et al., Plaintiffs,
v.
ANTHONY FOXX, SECRETARY OF TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 05-cv-654 (PLF) ) ) ) ) ) )

ACKNOWLEDGMENT OF PRIVACY ACT PROTECTIVE ORDER

I, ________________, hereby acknowledge that I have read and understand the Privacy Act Protective Order (the “Order”) entered in this action. I hereby agree to be bound by the terms of the Order. Specifically,
1. I agree that I will use records and information protected by the Order only for purposes of this civil action and any appeals thereof, and not for any other purpose of any kind.
2. I agree that records and information and all copies thereof protected by the Order will be returned to Plaintiffs’ counsel at the termination of this civil action and any appeals thereof or when I am no longer assigned or retained to work on this case, whichever comes earlier, so that the records and information may be returned to counsel for Defendants or destroyed by Plaintiffs’ counsel within 60 days after the termination of this civil action or any appeals thereof.
3. I agree that I will disclose records and information protected by the Order only to

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Case 1:05-cv-00654-PLF Document 338-3 Filed 01/13/17 Page 8 of 8

(a) the Court and its personnel, including court reporters; (b) the attorneys of record for the parties and persons regularly in the employ of such attorneys who have a need for Covered Documents or Covered Information in the performance of their duties; (c) the plaintiffs; (d) employees of Defendants; and (e) outside contractors hired to use the individuals’ social security numbers for the sole purpose of locating and contacting these individuals. In any event, I will not make disclosure to any person (except the Court and its personnel, including court reporters, Defendants’ employees, and the parties’ counsel) who has not signed an Acknowledgment of Privacy Act Protective Order in the above-captioned matter and does not have a need for such information to perform duties specifically related to the conduct of this civil action or any appeals thereof.
4. Should I wish to disclose the records that are subject to the Order to any additional persons except those indicated in the Order and herein, I or Plaintiffs’ counsel will first seek the consent of Defendants. If Defendants do not consent to the disclosure, then I or Plaintiffs’ counsel may, on motion, seek modification of the Order from the Court.
5. I agree that those portions of any filings with the Courts that contain Privacy Act materials or other private personal information protected by the Order shall be filed under seal.
6. I hereby confirm that my duties under this Acknowledgment shall survive the termination of this case and are binding upon me for all time.
7. I hereby consent to the personal jurisdiction of the United States District Court for the District of Columbia for the purpose of enforcement of the Order.
[signature]

2203830.1

[print name] 2

 
 Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

) C.A. No. 05-00654 (RWR)

)

NORMAN Y. MINETA

)

SECRETARY OF TRANSPORTATION

)

DEPARTMENT OF TRANSPORTATION, et al., )

)

Defendants.

)

)

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ NOTICE OF SUPPLEMENTAL FILING

Plaintiffs Kathleen L. Breen, et al., hereby file their

Reply to Defendants’ Response to Plaintiffs’ Notice of

Supplemental Filing and in support thereof state as follows:

A central issue in this case is whether there is direct

evidence of age-discriminatory intent, as Plaintiffs maintain

there is.

If Plaintiffs can show by “direct evidence” that age

discrimination was a “motivating factor” in Defendants’ decision

to fire the predominantly over 40 (92%) Flight Service

Controllers whose jobs are at issue, then Plaintiffs are

entitled to a finding of liability unless Defendants can prove

by a preponderance of the evidence that they would have taken

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 2 of 5
the same action regardless of the Controllers’ age.1 See Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). The FAA’s slide presentations from January 12, 2003 and June 25, 2003 (Notice, Ex. 1 and 2) provide precisely the kind of direct evidence of discrimination that would support a finding of liability.2
Joann Kansier’s presentation of the “FAA’s Business Case for Competitive Sourcing” (Notice, Ex. 1) describes the “State of AFSS” in the right-hand column as including problems such as “Aging facilities and equipment” and “Imbalanced workload” and most significantly, “Aging workforce.” See id. Other than the revealing term “Aging workforce,” the list is identical to the cleaned up list on the FAA’s website, which substitutes the euphemism “Retirement eligible workforce” for “Aging workforce.” See Plaintiffs’ Application for a Preliminary Injunction (“Application”), Ex. 50. At oral argument on September 1, 2005,
1Though the existence of direct evidence means that Plaintiffs are not required to show discrimination through circumstantial evidence, Plaintiffs can also show age discrimination based on circumstantial evidence through the three-part burden shifting scheme of McDonnell Douglas v. Green, 411 U.S. 792 (1973).
2The government’s counsel grudgingly conceded at oral argument: “I think that it’s very clear that at worst, it would be a mixed motive case.” Tr. at 49:25-50:1.
2

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 3 of 5
the Court raised the question of whether statements introduced by the Plaintiffs (such as Ex. 50) should be interpreted to as being age animus. Tr. at 49:20-24. In light of the FAA’s much clearer, stronger inclusion of “Aging workforce” in the list of reasons for contracting out and terminating the Plaintiffs, the FAA’s animus is much more apparent. It is telling that the FAA subsequently felt the need to replace its “Aging workforce” term with the less obviously discriminatory “Retirement eligible workforce.”
The slide from the FAA’s January 12, 2003 program (Notice, Ex. 2) belies Defendants’ assertion that their intense focus on age was merely evidence of their delight in the good fortune of those employees (a clear minority) who were actually eligible to retire and could take a second job. See Defendants’ Response at 2. In fact, the Agency’s January 12, 2003 slide, entitled “Primary Reasons for Proposing Flight Service Stations (FSS) for Study” (emphasis added), lists “Aging workforce” separately from the category “>50% (sic) eligible to retire.” Notice, Ex. 2. A candid observer, even one entertaining the FAA’s implausible rationale, would have to conclude that “Aging workforce” was a separate reason for proposing the FSS for study (and eventual elimination effective October 4, 2005).
3

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 4 of 5
Plaintiffs’ third additional exhibit (Notice, Ex. 3) is evidence that the FAA Administrator’s audience either heard her state that an “Aging workforce” was a concern or understood her to be stating that the Flight Service Controllers are an aging workforce.
Defendants conclude their Response with a bizarre and irrelevant colloquy on how, in some situations, consideration of age could be legitimate. Even if this were so, the situation they describe – recruiting and training younger employees because older employees are going to retire – bears no relationship to the situation at issue in this case – firing the older workers (who are under a mandatory retirement age of 56). See Response at 3-5. If age was a consideration in firing the FAA’s Flight Service Controllers, then it was impermissible and discriminatory as a matter of law.3
3If so, Plaintiffs are entitled at minimum to a finding of mixed motive discrimination.
4

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 5 of 5

September 15, 2005

Respectfully submitted,
/s/ JOSEPH D. GEBHARDT
(DC Bar No. 113894) CHARLES W. DAY, JR.
(DC Bar No. 459820) GEBHARDT & ASSOCIATES, LLP 1101 17th Street, N.W. Suite 807 Washington, DC 20036-4716 (202) 496-0400
Counsel for Plaintiffs

5

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

KATHLEEN A. BREEN et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 05-654(RWR)

)

RAY H. LAHOOD1 et al.,

)

)

Defendants.

)

______________________________)

MEMORANDUM OPINION AND ORDER Federal flight service air traffic controllers sued alleging that the government committed age discrimination by outsourcing their jobs and terminating their federal employment. Three former plaintiffs, Frank Matkins, Henry Ontiveros and Janice Teed-Wilson, who were dismissed from this case for failure to respond to a show cause order directed at plaintiffs who had failed to respond to discovery requests and inquiries from plaintiffs’ counsel, move for reconsideration. Because the movants do not show that justice requires reconsideration, their motions will be denied.
BACKGROUND Plaintiffs filed this action on March 31, 2005, in response to the defendants’ February 2005 announcement that it would

1 Secretary of Transportation Ray H. LaHood is substituted as a defendant in place of former Secretary Mary E. Peters. See Fed. R. Civ. P. 25(d).

-2outsource their jobs and terminate their federal employment effective on October 3, 2005. Plaintiffs allege age discrimination by the FAA and its parent agency, the Department of Transportation. On June 8, 2007, plaintiffs’ counsel moved to withdraw as counsel from representing 714 of the 912 plaintiffs involved in this case. Plaintiffs’ counsel asserted that on February 16, 2007, they mailed a letter to all of the plaintiffs that counsel represented, asking that the plaintiffs decide whether to continue in the case as active plaintiffs, continue in the case without being represented by plaintiffs’ counsel, or request dismissal from the case. Approximately 700 plaintiffs failed to respond to this letter. (Pls.’ Counsels’ Mot. to Withdraw as Counsel for 714 Pls. (“Mot. to Withdraw”) at 2-3.) On April 17, 2007, plaintiffs’ counsel sent another letter to the plaintiffs who failed to respond to the first letter, enclosing defendants’ discovery requests for response. Approximately 694 plaintiffs failed to respond to this letter. (Mot. to Withdraw at 3-4.) Plaintiffs’ counsel’s motion to withdraw was granted for twenty plaintiffs who specifically declared that they wanted to proceed pro se, and denied as to all other remaining plaintiffs. (Minute Order, September 14, 2007.) However, on November 8, 2007, the plaintiffs who had not responded to counsel or who had not responded to defendants’ discovery requests, were ordered to show cause in writing by November 29, 2007, why they

-3should not be dismissed from the case. (Order to Show Cause,
November 8, 2007.) That order warned that a plaintiff’s failure
to file a timely response with the Clerk would result in that
plaintiff and his or her claims being dismissed from this action.2 On May 30, 2008, an order was entered dismissing the
plaintiffs, including Matkins, Ontiveros and Teed-Wilson, who failed to respond to the order to show cause.3 Matkins,
Ontiveros and Teed-Wilson now seek reinstatement.
DISCUSSION
Under Rule 54(b) of the Federal Rules of Civil Procedure,
“any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action
as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and
all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
2 The Order was unambiguous. It stated, in relevant part: “Each plaintiff listed in the Appendix to this Order is directed to show cause in writing by November 29, 2007, why his or her claim should not be dismissed from this case for failure to respond to defendants’ discovery demands and/or failure to communicate with his or her counsel. A plaintiff’s failure to file a timely response with the Clerk of Court for the United States District Court for the District of Columbia . . . will result in that plaintiff and his or her claims being dismissed from this action.” (Order to Show Cause, November 8, 2007 at 1.)
3 Thirty-three plaintiffs who either responded to orders to show cause, or whose mailed orders to show cause were returned as undeliverable, remained in the case.

-4Under Rule 54(b), a trial court may grant reconsideration “as justice requires.” Campbell v. U.S. Dept. of Justice, 231 F. Supp. 2d 1, 7 (D.D.C. 2002). However, in order to promote finality, predictability and economy of judicial resources, “as a rule [a] court should be loathe to [revisit its own prior decisions] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” Lederman v. United States, 539 F. Supp. 2d 1, 2 (D.D.C. 2008) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)). Reconsideration may be warranted where there was a patent misunderstanding of the parties, where a decision was made that exceeded the issues presented, where a court failed to consider controlling law, or where a significant change in the law occurred after the decision was rendered. Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005). The moving party has the burden of showing that reconsideration is warranted, and that some harm or injustice would result if reconsideration were to be denied. In Def. of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 76 (D.D.C. 2008).
“‘When circumstances make such action appropriate,’ a district court may dismiss an action on its own motion because of a party’s failure to comply with court orders designed to ensure orderly prosecution of the case.” Bristol Petroleum Corp. v.

-5Harris, 901 F.2d 165, 167 (D.C. Cir. 1990) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962)); see also Wrenn v. Walters, 851 F.2d 1502 (D.C. Cir. 1988) (upholding dismissal of action for plaintiff’s failure to appear at scheduled court date); cf. Mikkilineni v. Penn Nat’l Mut. Cas. Ins. Co., 271 F. Supp. 2d 151, 154-156 (D.D.C. 2003) (upholding the dismissal of a pro se litigant’s case for malfeaseance). Plaintiffs are expected to use reasonable diligence in participating in litigation, and plaintiffs are expected to maintain communication with their counsel. See Ake v. Mini Vacations, Inc., 174 F.R.D. 110, 112 (M.D. Fla. 1997) (denying plaintiff’s motion for relief from judgment dismissing her claim for failing to respond to an order to show cause, because plaintiff “had a duty to monitor the progress of the case, communicate with her attorney, and to inquire of the Court as to the status of her case in the event she is unable to contact her attorney”); see also Bomate v. Ford Motor Co., 761 F.2d 713, 714 (D.C. Cir 1985) (affirming dismissal where a plaintiff failed to cooperate with her lawyers and failed to comply with a pretrial order, and where the trial court warned plaintiff of the consequences of further delays in the pretrial process); Killingham v. Dist. of Columbia Serv. for Independent Living, Inc., Civil Action No. 87-2713 (JGP), 1998 WL 1148899, at *7 (D.D.C. 1998)(a diligent client may reasonably rely on counsel, but a party may not “remain ignorant of a pending matter

-6-
in the hope that” the matter will be resolved in its favor). “At
a certain point, a defendant ought to be freed of the anxiety of
litigation that a plaintiff has failed to diligently pursue.”
Williams v. Dist. of Columbia Water Auth., Civil Action No. 01-
2110 (RWR), 2005 WL 1241129, at *3 (D.D.C. May 24, 2005)
(dismissing plaintiff’s action where plaintiff failed to engage
in discovery for a period of approximately 42 months).
Here, no movants show that the initial decision to dismiss
them from the case for failing to respond to the order to show
cause was erroneous, exceeded the issues presented, or failed to
consider controlling law, or that there was a significant change
in the law that occurred after the decision. While all three movants claim that they did not receive the order4 (or that they
were unaware of the order they did receive), none of them
provides any justification for failing to stay in communication
with plaintiffs’ counsel to monitor the progress of the
litigation and learn of their obligation to respond to the order
4 Matkins does not explain why he did not receive the order to show cause, other than to assert that he did not receive other mail from plaintiffs’ counsel. (Matkins Mot. for Modification, at 2.) Ontiveros seems to claim that as a result of falling victim to mail fraud, he instructed his mother (who was apparently tasked with receiving his mail) to throw out “official-looking letters.” (Ontiveros’ Mot. for Recons. at 3.) Teed-Wilson claims that she did not receive the letter because she moved several times between 2006 and 2008, and because she went through a divorce. (Teed-Wilson’s Mot. for Recons. at 3-4.) Nothing in the record indicates that plaintiffs’ counsel failed to serve these plaintiffs with the order to show cause, or that the mailings to them were returned as undeliverable.

-7to show cause in a timely fashion. The obligation to assure that an attorney has current information about how to promptly and successfully contact a client rests with the client, not with the attorney. The same is true with respect to pro se parties keeping a court informed of the party’s address and telephone number. See LCvR 5.1(e)(1). Unfortunately for the movants here, they did not abide by their obligations. The motions to reconsider will be denied.
CONCLUSION AND ORDER Because Matkins, Ontiveros, and Teed-Wilson do not demonstrate that justice requires granting their motions for reconsideration, it is hereby ORDERED that their motions [203, 213, 234] for reconsideration of the order dismissing them from the case be, and hereby are, DENIED. The Clerk shall mail a copy of this order to each of the three movants. It is further ORDERED that the Clerk substitute as a defendant Ray H. LaHood for Mary E. Peters. SIGNED this 17th day of February, 2009.
/s/ RICHARD W. ROBERTS United States District Judge

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANTHONY FOXX, SECRETARY OF )

TRANSPORTATION, DEPARTMENT )

OF TRANSPORTATION, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

MEMORANDUM OPINION AND ORDER On November 4, 2016, the Court granted Joseph D. Gebhardt’s Motion to Withdraw as Attorney for Plaintiffs. Order (Nov. 4, 2016) [Dkt. 321]. Upon consideration of the Defendants’ Motion for Clarification and Partial Reconsideration of Order Granting Gebhardt’s Motion to Withdraw From Representation (“Defendants’ Motion for Clarification and Partial Reconsideration”) [Dkt. 323] and Plaintiffs’ Response to Defendants’ Motion for Clarification and Partial Reconsideration of Order Granting Gebhardt’s Motion to Withdraw From Representation (“Plaintiffs’ Response”) [Dkt. 328], the Court will clarify its November 4, 2016 Order and deny the defendants’ motion for partial reconsideration. Joseph D. Gebhardt was the lead counsel for the plaintiffs in this case. He closed his law firm, Gebhardt & Associates, in 2014. Plaintiffs’ Response Exhibit A. On August 18, 2016, Daniel K. Gebhardt, also a former partner at Gebhardt & Associates, filed an unopposed Motion to Withdraw as Attorney for Plaintiffs, stating that he is now a solo practitioner and “no longer has the resources to devote to the case.” Unopposed Motion to Withdraw as Attorney for

Plaintiffs at 1 [Dkt. 300]. In his unopposed motion, Daniel Gebhardt stated that “[i]n light of the fact that the Plaintiffs now have new competent counsel, it is appropriate for undersigned counsel to be allowed to withdraw.” Id. at 1. He further represented that counsel for the defendants had no opposition to his withdrawal. Id. The Court granted Daniel Gebhardt’s motion to withdraw by minute order on September 27, 2016. Joseph Gebhardt filed a motion to withdraw for the same reason; he no longer has the resources to provide plaintiffs with representation in this case. See Plaintiffs’ Response Exhibit B; Letter from Joseph D. Gebhardt (Dec. 2, 2016) at 1 [Dkt. 333].
After the closure of Gebhardt & Associates, there has been confusion regarding which plaintiffs have chosen to pursue their claims pro se and which have obtained representation through plaintiffs’ new counsel, Joseph M. Sellers and Gary M. Gilbert. See Defendants’ Motion for Clarification and Partial Reconsideration at 1 n.1. Plaintiffs’ counsel have reached out to all of the plaintiffs previously represented by Joseph Gebhardt. Plaintiffs’ Notice of Filing Regarding the Individuals Who Have Retained Plaintiffs’ Counsel at 1-2 [Dkt. 307]. Plaintiffs’ counsel have also reached out to the 663 plaintiffs who were previously dismissed from this case. Plaintiffs’ Notice of Filing Regarding the Individuals Who Have Retained Plaintiffs’ Counsel at 1 n.3 [Dkt. 313]. Due to the many years that have passed in this case and a lack of accurate contact information for all plaintiffs, many of the plaintiffs have not responded to letters from plaintiffs’ new counsel, and some letters have been returned as undeliverable. See id.; Plaintiffs’ Response at 2.
The Court granted Joseph Gebhardt’s motion to withdraw based on the following information: (1) Joseph Gebhardt’s law firm is now closed and he no longer has the means to represent the plaintiffs in this case; (2) Daniel Gebhardt’s unopposed motion to withdraw
2

because he also no longer has the means to represent the plaintiffs in this case; (3) the representation in Daniel Gebhardt’s motion that the plaintiffs in this case now have competent counsel; and (4) the efforts of plaintiffs’ new counsel to reach all of the named and dismissed plaintiffs previously represented by Joseph Gebhardt.
The present motion to withdraw did not comply with Local Civil Rule 83.6(c) because it did not state that notice of Joseph Gebhardt’s motion to withdraw had been given to each party not currently represented by plaintiffs’ counsel. The Court is satisfied, however, that the efforts by plaintiffs’ new counsel to reach the named and dismissed plaintiffs in this case constitutes a sufficient effort to notify them that they may need to obtain new counsel, retain Mr. Sellers or Mr. Gilbert, or proceed pro se. Given the difficulties that plaintiffs’ new counsel have had in attempting to reach these individuals, it is unlikely that Joseph Gebhardt would be more successful in that endeavor.
Accordingly, it is hereby ORDERED that defendants’ Motion for Partial Reconsideration of Order Granting Gebhardt’s Motion to Withdraw From Representation [Dkt. 323] is DENIED; and it is FURTHER ORDERED that plaintiffs’ new counsel shall submit a status report on or before January 4, 2017, on their continuing efforts to contact the plaintiffs previously represented by Joseph Gebhardt and include an updated list of plaintiffs who have retained plaintiffs’ counsel, plaintiffs who have chosen to proceed pro se, and the individuals who have
3

not responded to letters from plaintiffs’ counsel or for whom letters have been returned as undeliverable.
SO ORDERED.

DATE: December 14, 2016

/s/________________________ PAUL L. FRIEDMAN United States District Judge

4

 
 Case 1:05-cv-00654-PLF Document 337 Filed 01/04/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN BREEN, et al.,
Plaintiffs,
v.
ANTHONY FOXX, SECRETARY OF TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 05-cv-654 (PLF) ) ) ) ) ) ) )

PLAINTIFFS’ THIRD STATUS REPORT

Pursuant to the Court’s December 14, 2016 Memorandum and Order, Plaintiffs, by and

through their undersigned counsel, hereby submit this Status Report regarding the status of the

Plaintiffs in this case and the efforts made by The Law Offices of Gary M. Gilbert & Associates

(“GMGA”) and Cohen Milstein Sellers & Toll (“Cohen Milstein”) (collectively “Plaintiffs’

Counsel”) to contact the Plaintiffs.

I. Background

The Plaintiffs in this case may currently be divided into four general categories: (1)

Active Plaintiffs, (2) Pro Se Plaintiffs, (3) Dismissed Plaintiffs, and (4) Joinder Plaintiffs. When

Plaintiffs’ Counsel first entered the case, there were 197 Active Plaintiffs who were not

proceeding pro se. In addition, when Plaintiffs’ Counsel entered the case, there were 27

Plaintiffs who were proceeding pro se. As detailed below, most of these formerly pro se

individuals are now represented by Plaintiffs’ Counsel. There are 654 Plaintiffs who were

named in the Complaints to the Court, but were subsequently dismissed for failure to respond to

1

Case 1:05-cv-00654-PLF Document 337 Filed 01/04/17 Page 2 of 6
the Court’s show-cause orders. On October 31, 2016, Plaintiffs asked the Court to reconsider the dismissal of these Plaintiffs. See Dkt. 317.
There are also 20 Plaintiffs who seek reconsideration on the denial of their motion to join this case. See Dkts. 122 and 316. Plaintiffs’ Counsel represents 17 of these Joinder Plaintiffs.
II. Active Plaintiffs Before the Court Plaintiffs’ Counsel now represents 215 Plaintiffs, of which 191 had previously been
represented by prior counsel, the law firm of Gebhardt &Associates (G&A), and 24 had been proceeding pro se. A list of these represented individuals is appended as Attachment 1.
Six Plaintiffs who were previously represented by G&A have not yet retained Plaintiffs’ Counsel. Two have indicated that they wish to retain Plaintiffs’ Counsel, and one has informed Plaintiffs’ Counsel that he wishes to proceed pro se or voluntarily withdraw from the case. Plaintiffs’ Counsel have been notified that one of these Plaintiffs, Herbert Nagel is deceased. See Attachment 2 (Obituary of H. Nagel). Plaintiffs’ Counsel are making efforts to reach Mr. Nagel’s estate, and will update the Court, in accordance with Federal Rule of Civil Procedure 25. Plaintiffs’ Counsel have been unable to contact two of these individuals, but are continuing to make efforts to locate their current contact information.
III. Pro Se Plaintiffs There are 24 individuals who were proceeding pro se in this action who have retained
Plaintiffs’ Counsel. At this point in time, three pro-se individuals have not retained Plaintiffs’ Counsel: Tom Domingo, John Lynch and Julia Greenway. Mr. Domingo has informed Plaintiffs’ Counsel that he wishes to continue to proceed pro-se. Plaintiffs’ Counsel have spoken to Mr. Lynch, and he continues to consider their offer of representation. Plaintiffs’ Counsel have made numerous attempts to reach Ms. Greenway but have not been able to contact her.
2

Case 1:05-cv-00654-PLF Document 337 Filed 01/04/17 Page 3 of 6
IV. Joinder Plaintiffs There are 20 individuals who sought to join this action, 17 of whom have retained
Plaintiffs’ Counsel. A list of these individuals is appended as Attachment 3. Three Joinder Plaintiffs have not yet retained Plaintiffs’ Counsel. Plaintiffs’ Counsel will continue to update the Court regarding the status of these proposed Joinder Plaintiffs.
V. Dismissed Plaintiffs Of the 654 Plaintiffs that have been dismissed from the above-captioned case, Plaintiffs’
Counsel have been in touch with 356 individuals. 272 of these Dismissed Plaintiffs have retained Plaintiffs’ Counsel. A list of these individuals is appended as Attachment 4. Plaintiffs’ Counsel have been in touch with an additional 77 Dismissed Plaintiffs, who are considering Plaintiffs’ Counsel’s offer of representation. A list of these individuals is appended as Attachment 5. Of the first-class mailings Plaintiffs’ Counsel have sent to the Dismissed Plaintiffs, 122 have been returned as undeliverable. A list of these individuals is appended as Attachment 6. There are 185 Dismissed Plaintiffs for whom Plaintiffs’ Counsel have neither received a response, nor a returned mailing. A list of these individuals is appended as Attachment 7. 7 Dismissed Plaintiffs have informed Plaintiffs’ Counsel that they are not interested in pursuing this law suit. A list of these individuals is appended as Attachment 8.
VI. Attempts to Reach the Dismissed Plaintiffs Plaintiffs’ Counsel continue to make efforts to contact the Dismissed Plaintiffs, and
continue to receive and respond to emails and phone calls from Dismissed Plaintiffs about the case. As a result, Plaintiffs’ Counsel have successfully contacted a majority of the Dismissed Plaintiffs. See Attachments 4, 5. The number of Dismissed Plaintiffs who have contacted
3

Case 1:05-cv-00654-PLF Document 337 Filed 01/04/17 Page 4 of 6
Plaintiffs’ Counsel continuously increases, and Plaintiffs’ Counsel will continue to update the Court accordingly.
In addition, Plaintiffs’ Counsel have purchased the domain name www.faacase.com, and are in the process of setting up a publicly available website to provide information about contacting Plaintiffs’ Counsel about this case.
Plaintiffs’ Counsel believe the Dismissed Plaintiffs whom Plaintiffs’ Counsel have not yet reached could be located and contacted with additional assistance from Defendants. Plaintiffs’ Counsel have spoken to a private investigator, who advised that the most effective way to locate these individuals would be to obtain their social security numbers of these individuals. Accordingly, on December 16, 2016, Plaintiffs’ Counsel asked Defendants whether they would release the social security numbers for these Plaintiffs, subject to an appropriate confidentiality agreement. See Attachment 9. On January 3, 2017, Defendants provided a response regarding their position, which they have asked be presented to the Court as they drafted it:
We are not comfortable releasing the [social security numbers] for non-represented plaintiffs and former plaintiffs based on the prior protective order that had governed discovery [Dkt. 56]. So I suggested that, if you desire that information, you should move for a protective order that will allow the judge to specifically address this particular request. We will not oppose the motion if (1) you can let us see a copy of your proposed protective order before filing and we don’t have any problems with the details; and (2) you include a sentence along the following lines: Defendants advise that, under the unique procedural circumstances of this case, they take no position on whether the Court should enter a protective order focused on the particularized disclosures proposed by this motion. Plaintiffs propose that they formulate, with the concurrence of Defendants, an appropriate order protecting the social security numbers and submit the proposed order along with a motion asking the Court’s approval no later than January 13, 2017.
4

Case 1:05-cv-00654-PLF Document 337 Filed 01/04/17 Page 5 of 6

Dated: January 4, 2017

Respectfully Submitted, /s/ Linda A. Kincaid Linda A. Kincaid, Esq. Bar No. 416936 THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C. 1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910 Telephone: (301) 608-0880 Facsimile: (301) 608-0881 lkincaid-efile@ggilbertlaw.com Attorney for Plaintiffs

5

Case 1:05-cv-00654-PLF Document 337 Filed 01/04/17 Page 6 of 6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via the CM/ECF electronic filing system on this 4th day of January, 2017, and thereby served upon the parties and/or their counsel. The following individuals, who are not served via the CM/ECF electronic filing system, were served via first-class mail:
CHARLES E. HOLLAND 21927 Bayard Terrace Broadlands, VA 20148
DONNA DODSON 7499 Hidden Glen Drive Amherst, OH 44001-2575
HENRY ONTIVEROS 516 E. Byron Nelson Blvd, #124 Roanoke, TX 76262
JANICE I. TEED WILSON 12706 Amor Street Dewey, AZ 86327
JIM G. WILKERSON 2205 Meadowood Drive Kronenwetter, WI 54455
TOM DOMINGO RR2 Box 228 Gilman Road Elkins, WV 26241
WILLIAM R. MADDEN 1050 Harrison Avenue, Apt. 8-A Dyer, IN 46311
By: s/ Linda A. Kincaid Linda A. Kincaid, Bar No. 416936 THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C. 1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910 Telephone: (301) 608-0880 Facsimile: (301) 608-0881 lkincaid-efile@ggilbertlaw.com
6

 
 Case 1:05-cv-00654-PLF Document 344 Filed 05/26/17 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ELAINE L. CHAO, SECRETARY OF )

TRANSPORTATION, DEPARTMENT )

OF TRANSPORTATION, et al.,1

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

OPINION Plaintiffs, former flight service (“FS”) specialists with the Federal Aviation Administration (“FAA”), brought this suit against the FAA and the Department of Transportation (collectively “defendants” or the FAA) alleging discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. Defendants terminated plaintiffs’ employment pursuant to a reduction in force (“RIF”) that involved outsourcing the FS function to Lockheed Martin, a private company. Plaintiffs allege (1) a disparate treatment claim — that the FAA decided to outsource the FS function because of the age of the FS specialists, and (2) a disparate impact claim — that the FAA’s decision had a disproportionate impact on workers over the age of 40.

1

The First Amended Complaint [Dkt. 3] names Norman Y. Mineta, former

Secretary of Transportation, as one of the party defendants. The Court substitutes his most

recent successor, Elaine L. Chao, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

Case 1:05-cv-00654-PLF Document 344 Filed 05/26/17 Page 2 of 37
Defendants have moved for summary judgment on both theories. As to the disparate treatment claim, they contend that (1) the RIF applied to every FS specialist, regardless of age; (2) the agency had legitimate, nondiscriminatory reasons for outsourcing the FS function; and (3) comments made by FAA managers about age and the aging workforce were not made by decision makers in the A-76 process or the 2005 RIF decision and, in any event, were legitimate in the context in which they were made. As for the disparate impact claim, defendants argue that there can be no disparate impact claim based on the RIF or, alternatively, on the 2002 decision to designate the FS function as “non-core,” because neither was a facially neutral employment policy or practice. Upon careful consideration of the parties’ briefs, the relevant legal authorities, and the entire record in this case, the Court will deny defendants’ summary judgment motion on plaintiffs’ disparate treatment claim but grant their motion on plaintiffs’ disparate impact claim.2

2

The documents considered in connection with the pending motion include: the

Amended Complaint (“Am. Compl.”) [Dkt. 3]; Defendants’ Motion for Summary Judgment

(“Def. MSJ”) [Dkt. 256]; Defendants’ Statement of Undisputed Material Facts as to Which

There are No Genuine Issues (“Def. Facts”) [Dkt. 256]; Plaintiffs’ Memorandum in Support of

Their Cross Motion for Summary Judgment and Opposition to Defendants’ Motion for Summary

Judgment (“Pl. MSJ”) [Dkt. 262]; Plaintiffs’ Statement of Undisputed Material Facts (“Pl. Opp.

Facts”) [Dkt. 262-1]; Plaintiffs’ Corrected Statement of Undisputed Material Facts (“Pl. Facts”)

[Dkt. 265-3]; Defendants’ Reply and Opposition to Cross-Motion (“Def. Reply”) [Dkt. 268];

Defendants’ Response to Plaintiffs’ Corrected Statement of Undisputed Material Facts (“Def.

Opp. Facts”) [Dkt. 268-1]; Plaintiffs’ Reply (“Pl. Reply”) [Dkt. 271]; Plaintiffs’ Supplemental

Brief (“Pl. Supp. Br.”) [Dkt. 309]; Defendants’ Supplemental Brief (“Def. Supp. Br.”) [Dkt.

310]; Plaintiffs’ Response to Defendants’ Supplemental Brief (“Pl. Supp. Rep.”) [Dkt. 325]; and

Defendants’ Response to Plaintiffs’ Supplemental Brief (“Def. Supp. Rep.”) [Dkt. 326].

2

Case 1:05-cv-00654-PLF Document 344 Filed 05/26/17 Page 3 of 37
I. FACTUAL AND PROCEDURAL BACKGROUND A. The Role of Flight Service Specialists
FS specialists provide preflight, inflight, and airport advisory information to aircraft operators. Def. Facts ¶ 3. Before a flight, FS specialists communicate with pilots directly, providing meteorological and aeronautical information to help them plan safe flights. Pl. Opp. Facts at 1-2. FS specialists also communicate with pilots during flight by radio, helping them to avoid hazards, aiding them during emergencies, helping lost pilots find their bearings, and initiating search and rescue operations if they cannot confirm that a flight has ended safely. Id.; Def. MSJ at 4; Def. MSJ, Ex. 61 at 33-34 [Dkt. 256-62]; Def. MSJ, Ex. 80 at 37 [Dkt. 256-81]. FS specialists can also disseminate information through the National Air System via Notices to Airmen. Pl. Opp. Facts at 1-2. FS specialists are not involved in separating or controlling aircraft while in the air; that is the job of so-called “Aircraft Separating Controllers.” Def. Facts at ¶ 5; see also 5 U.S.C. § 2109(1)(A)(i). FS specialists also cannot prohibit a pilot from flying, but can recommend that pilots do not fly if doing so would be hazardous. Def. MSJ at 3; 5 U.S.C. § 2109(1)(A)(ii).
FS specialists comprised one of several air traffic control functions that the FAA administered prior to the October 2005 RIF. Def. Facts ¶ 1. At that time, commercial airlines relied on their own or on a contractors’ employees to provide the information that FS specialists also provided. Id. ¶ 9; Def. MSJ, Ex. 61 at 95 [Dkt. 256-62]; Def. MSJ, Ex. 86 at 52 [Dkt. 256-87]; Def. MSJ, Ex. 51 at 44 [Dkt. 256-52]. Some private pilots also used private companies to plan for flights. Def. Facts ¶ 10; Def. MSJ, Ex. 50 at 52 [Dkt. 256-51]. Despite these alternatives, plaintiffs contend that the FAA’s FS function provided the most comprehensive source of flight information. Pl. Opp. Facts at 4-5 (“Flight Service is virtually
3

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the only source of in-flight air/ground services for general aviation.”) (emphasis omitted); Pl. Facts at ¶ 14 (“[N]o non-governmental workforce . . . was trained and certified to perform all of the functions of flight service for general aviation.”).
The FAA’s “Aerospace Forecast” for 2005-2016 noted several ominous trends affecting the FS function, such as the fact that “[t]he introduction of new technology for flight service has significantly changed the operating environment for the flight service system.” Def. MSJ, Ex. 3 at VII-16 [Dkt. 256-4]. The FAA predicted that the “increased use of automation and new system capabilities” would “dampen the growth in traditional FS[] workload measures,” such as contact with pilots. Id. at VII-16-18. In the years leading up to 2005, the FAA collected data showing that private pilots increasingly accessed weather reporting, flight planning, and navigational assistance — the traditional FS functions — online. Def. MSJ, Ex. 42 ¶ 6 [Dkt. 256-43]; Def. MSJ, Ex. 80 at 33-34 [Dkt. 256-81]; Def. MSJ, Ex. 84 at 50 [Dkt. 256-85]. The FAA also approved systems for transmitting weather information directly into pilots’ cockpits during flight without the need for a FS specialist. See Def. MSJ, Ex. 1 at 1 [Dkt. 256-2]. And comprehensive automated weather systems replaced the FS specialists’ task of going outside at airports to observe weather conditions. Def. MSJ, Ex. 53 at 59 [Dkt. 256-54]; Def. MSJ, Ex. 61 at 26 [Dkt. 256-62]; Def. MSJ, Ex. 62 at 73-74 [Dkt. 256-63].
As a result of these changes, the work of FS specialists declined; there were fewer contacts with pilots, fewer briefings, and fewer flight plan filings every year. Def. MSJ, Ex. 2 at VII-8 [Dkt. 256-3]; Def. MSJ, Ex. 3 at VII-16, VII-18 [Dkt. 256-4]. As FS specialists retired or left their jobs, the FAA decided not to rehire new FS specialists to replace them. Pl. MSJ, Ex. 33 at 142 [Dkt. 263-35]. The number of FS specialists the FAA employed gradually declined and the remaining FS specialists were gradually “aging” in the years leading up to 2005. Def.
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Facts ¶¶ 18-19; Def. MSJ at 15-16. FS facilities also were starting to deteriorate insofar as buildings required repair or replacement and the computer system used by FS specialists required major investment and attention. Def. MSJ at 17.
These changes caused the FAA to seek methods to consolidate air traffic control functions in order to save money. See, e.g., Def. Facts ¶¶ 16-17. A number of internal and external studies found that the FAA could save significant amounts of money by restructuring and consolidating its FS function. Id. ¶¶ 21-23; Pl. Facts ¶ 10. A 1996 report by the FAA’s Office of the Inspector General recommended that the FAA “consider having the private sector provide the full range of flight services.” Def. Facts ¶ 24; Pl. Opp. Facts at 7. Other reports recommended consolidation but also recommended that the FS function remain within the government. Pl. Opp. Facts at 9-11.
B. The FAIR Act Between the late 1990s and the early 2000s, the government pushed federal agencies to restructure and outsource any functions that the private sector could provide better and more efficiently. Def. MSJ at 17-18. Congress’s 1998 Federal Activities Inventory Reform Act (“FAIR Act”) mandated that agencies annually classify all activities performed by government personnel as either commercial or inherently governmental, and submit a list of those that were “not inherently governmental functions.” Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270 § 2(a)-(b), 112 Stat. 2382 (codified as amended in scattered sections of the United States Code); ses also Def. Facts ¶ 31; Def. MSJ at 18. Agency heads were then to review the list and consider contracting with a private source for the listed activities. 112 Stat. 2382 at § 2(d). If the agency head decided that certain activities could be outsourced, he or she was to use a competitive process to select the private contractor. Id. The rules for such
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a competition are outlined in Office of Management and Budget (“OMB”) Circular A-76, and competitions under these rules are called “A-76” studies or competitions. OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, CIRCULAR NO. A-76 (REVISED) (2003); Def. MSJ at 19.
To further expand A-76 competitions, President George W. Bush put the “Competitive Sourcing Initiative” on his President’s Management Agenda (“PMA”) in 2001. Def. Facts ¶ 32. The Initiative required federal agencies to either subject 15% of their commercial work functions to an A-76 process or directly convert 15% of their commercial activity inventory by the end of fiscal year 2003. Id. ¶ 34. These cost comparisons and conversions were to continue after 2003 until eventually 50% of every agency’s commercial activity inventory had been covered. Pl. Opp. Facts at 12. The OMB discarded these numeric benchmarks in July 2003. Def. Opp. Facts at 8; Def. MSJ, Ex. 9 at 7-8 [Dkt. 256-10]. As a result, the FAA in 2002 was under pressure to save money and consider functions for possible competitive sourcing. Def. Facts ¶¶ 38-39.
C. Before the A-76 Study During negotiations in 2002 for the FAA’s budget request for fiscal year 2003, the FAA sought budgetary authority to modernize the computer software used by FS specialists. Def. Facts ¶ 35; Pl. Opp. Facts at 14. The OMB suggested that the FAA look at consolidating instead of updating its computer systems. Pl. Opp. Facts at 14; Def. MSJ, Ex. 47 at 21-24 [Dkt. 256-48] (Deposition of Chief Financial Officer Christopher Bertram (“Bertram Dep.”)). Instead of consolidation, the FAA decided to conduct an A-76 study to see if the FAA could provide flight services more efficiently. Pl. Opp. Facts at 15; Bertram Dep. at 28. Defendants
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claim that it was the FAA’s Chief Financial Officer, Christopher Bertram, and his deputy CFO, John Hennigan, who made this decision. See Def. MSJ at 20.3
In June 2002, Bertram sent a memorandum to the FAA’s Administrator, Jane Garvey, about the decision of the FAA’s Office of Financial Services to subject the FS function to an A-76 competition as a means of meeting the OMB’s requirements. Def. Facts ¶ 40. Bertram’s memorandum stated that, according to the OMB instructions and the Competitive Sourcing Initiative’s 15% requirement, the FAA would need to outsource 1,100 positions by the end of calendar year 2003, and that outsourcing the FS function could meet this goal. Id. ¶ 41. Bertram also informed Administrator Garvey that the FAA had engaged an outside contractor to perform a feasibility study to clarify the scope of the review and determine whether private companies would bid on the work. Id. ¶ 42; Def. MSJ at 22. The FAA then formed a working group to develop an action plan for considering the FS function for an A-76 process. Def. Opp. Facts at 7. The members of this group included Deputy CFO John Hennigan, Ronald Page from the FAA’s Office of Finance, and former FS division managers Marilyn Jackson-Brame and Jack Nimmo. Pl. Facts ¶ 5; Pl. MSJ, Ex. 9 at 64, 199-200 [Dkt. 265-7]; Pl. MSJ, Ex. 54 at 39 [Dkt. 265-42].
The FAA contracted with the accounting firm Grant Thornton LLP to perform the feasibility study; Grant Thornton ultimately found that that the FS function was a strong candidate for competitive sourcing. Def. Facts ¶ 43; Pl. MSJ, Ex. 22 at D00253 [Dkt. 265-14]. It based this finding on the participation of three private sector companies that performed work similar to FS specialists, none of which eventually bid on the FS function contract when it was

3

Bertram’s deposition obscures who exactly suggested the A-76 process. See

Bertram Dep. at 32.

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offered. Pl. Opp. Facts at 17. According to plaintiffs, Grant Thornton’s study also found, however, that one part of the FS function was inherently governmental and should not be contracted out. Pl. Opp. Facts at 17. Defendants dispute this because Grant Thornton’s report identified a private vendor who had performed such services outside of the United States. Def. Opp. Facts at 12; see Pl. MSJ, Ex. 22 at D00248 [Dkt. 265-14]. After reviewing the Grant Thornton report, the FAA retained Grant Thornton for an additional four years and paid the company nearly $14 million for its work. Pl. Opp. Facts at 17 n.5.
CFO Bertram accepted the results of Grant Thornton’s feasibility study and, in August 2002, he notified then Acting FAA Administrator Monte Belger that he had decided to proceed with an A-76 study for the FS function. Def. Facts ¶ 44; Def. MSJ, Ex. 11 [Dkt. 256-12].4 Belger stated that proceeding with an A-76 study was part of an effort to meet the requirements of the President’s Management Agenda. Def. Facts ¶ 45. In his deposition, Bertram claimed that he did not learn or consider the average age of the FS workforce in the course of making the decision to subject the FS function to an A-76 study, but instead based that decision on budgetary and financial concerns. Id. ¶¶ 48-50; see Bertram Dep. [Ex. 47] at 106, 111. Bertram also testified that he did not know if the staff members who advised him were aware of the age of the FS workforce. Bertram Dep. at 112.
As noted, John Hennigan was Bertram’s deputy CFO during this time. Def. Facts ¶ 51. Hennigan’s office was in charge of compiling the 2002 FAIR Act list of activities that were not inherently governmental. Id. ¶¶ 53-54. Hennigan stated in his deposition that he did

4

Acting Administrator Belger decided to exclude Alaska from the study due to its

unique weather conditions and terrain, causing distinct flying conditions and thus different

requirements for aviation from the rest of the country. Def. Facts at ¶¶ 46-47. From here on, any

references to the FS function excludes employees in Alaska.

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not consider age in determining what to classify an activity as commercial on the inventory list. Id. ¶ 55. The National Association of Air Traffic Specialists (“NAATS”), the union that includes FS specialists, challenged the decision to include FS specialists on the FAIR Inventory in March 2003. Id. ¶ 56. The FAA denied the challenge and NAATS appealed to the Department of Transportation, which upheld the FAA’s denial in May 2003. Id. ¶¶ 57-58. Only six groups on the 2002 FAIR Inventory had more than 1,101 full-time equivalent positions, including the FS specialists. Id. ¶ 59. FS specialists were the only workforce out of these six seriously considered for an A-76 study. Pl. Opp. Facts at 21.
D. The A-76 Study Leading to the RIF After realizing that their budget office was not equipped to undertake a major A-76 study, Bertram and Hennigan placed the responsibility for conducting it in the newly created Office of Competitive Sourcing. Def. MSJ at 24. Early in 2003, Joann Kansier became the Director of that office, and Marilyn Jackson-Brame her deputy director. Def. Facts ¶¶ 68-69. Kansier was not personally involved in CFO Bertram’s earlier decision to subject the FS function to the A-76 process. Id. ¶ 70. Jackson-Brame was involved in the debate, but she was against the decision Bertram made. Id. ¶¶ 71-72; Pl. MSJ, Ex. 9 at 94-97, 112 [Dkt. 265-7]. Both Kansier and Marion Blakey, the FAA Administrator, made references to an “aging workforce” on numerous occasions. In a June 25, 2003 briefing made to OMB and NAATS about the A-76 process, Kansier listed “aging workforce” as one of five items under the “State of AFSS” that together created an opportunity for an A-76 process for the FS function. Def. MSJ, Ex. 14 at P01179 [Dkt. 256-15]. Kansier used a similar reference in two slide presentations she gave on January 12, 2003, and August 1, 2003. Pl. MSJ, Ex. 20 at P01155, D007686 [Dkt. 263-24]. Kansier subsequently changed this “aging workforce” language to
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“retirement eligible workforce” on other slide presentations and on the FAA website. Id. at D007193, P04428, P00003. Administrator Blakey also referred to the FS workforce as “eligible to retire” in two speeches, although not as a reason for the A-76 process. Pl. MSJ, Ex. 55 at P01166, P00633 [Dkt. 265-43]. And plaintiff Kathleen Breen testified at her deposition that the Administrator specifically referred to the age of certain persons in explaining why they should not be promoted. Breen Dep. at 101.
One of the first steps in the A-76 process was for the FAA to create a statement listing the requirements for bidders and what work all bidders must perform. Def. Facts at ¶ 73; Def. MSJ, Ex. 38 ¶ 5 [Dkt. 256-39] (Declaration of Joann Kansier (“Kansier Decl.”)). The Office of Competitive Sourcing formed a team to develop the statement consisting of FAA management from the FS division, NAATS union members, and contract support from Grant Thornton. Def. Facts ¶¶ 74-75; Def. MSJ, Ex. 15 at 1 [Dkt. 256-16]. In December 2013, after requests for input from interested parties, the FAA announced that it would subject the FS function to the A-76 process and solicit bids. Def. Facts ¶¶ 77-79; Kansier Decl. ¶ 7. Several FS specialists — who are plaintiffs in this action — allege that the FAA’s statement soliciting bids significantly understated the tasks performed by FS specialists. Pl. Opp. Facts at 26.
In May 2004, the FAA released a formal request for bids to five private sector companies who were selected to take part in the competition, including Lockheed, and to the government’s in-house bidder — known as Most Efficient Organization (“MEO”). Def. Facts ¶ 80; Kansier Decl. ¶¶ 2, 8, 9. According to plaintiffs, the FAA guaranteed a workforce to the winning bidder in the sense that it promised that “the majority of the Flight Service workforce would be made available to the winning bidder.” Pl. Facts at 9. At the very least, the FAA told the winning bidder that many FS specialists would be available to recruit. See Pl. MSJ, Ex. 16
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at 17-19 [Dkt. 263-20]. Defendants, however, point to the official solicitation for bids to show that the FAA did not guarantee a workforce, but instead required that the winning bidder offer a right of first refusal for employment opening[s] to FAA employees who were qualified for those openings and “who ha[d] been or will be adversely affected or separated as a result of award of this contract.” Pl. MSJ, Ex. 15 at § I.4 [Dkt. 263-19]. Further, one of the items the FAA assessed when evaluating bids was “the degree to which the staffing approach provides for recruitment and retention to ensure delivery of effective services to support safe and efficient flight.” Def. MSJ, Ex. 18 at 10 [Dkt. 256-19] (Judge Neill Opinion, Public Version (“Neill Opinion”)).5 The bidders then presented both their technical and cost proposals, and technical and cost evaluation teams at FAA reviewed the bids. Def. Facts ¶¶ 81-82; Kansier Decl. ¶¶ 11-12. The technical team rated Lockheed’s proposal as “excellent” on each of four factors, and the MEO’s proposal as “good” on one factor and “satisfactory” on the other three. Def. Facts ¶¶ 86-87; Neill Opinion at 54-55. The cost team concluded that Lockheed’s bid was 5% less costly than the MEO’s. Def. Facts ¶ 87; Neill Opinion at 52.
The FAA then submitted the technical and cost team evaluations to the Source Selection Evaluation Board, which the FAA tasked with issuing a recommendation to the ultimate selection official. Def. Facts ¶¶ 88, 90; Kansier Decl. ¶ 16; Def. MSJ at 27. Kansier and contracting officer Donald King chaired the board, which also consisted of both technical and cost experts. Def. Facts ¶¶ 88, 90; Kansier Decl. ¶ 16. The Board rejected two findings of weaknesses and one of costliness associated with the MEO proposal, but ultimately concluded that Lockheed had the best technical solution and “clearly provided the greatest benefit to the

5

Judge Edwin B. Neill of the General Services Administration Board of Contract

Appeals was appointed to serve as Special Master for the A-76 bid protest. See generally Def.

MSJ, Ex. 18

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Government.” Def. Facts ¶¶ 91-92; Neill Opinion at 100. One Board official, Dennis DeGaetano, concurred with the Board’s recommendation because Lockheed had the best bid, even though it cost slightly more than one other proposal. Def. Facts ¶ 94. Kansier later stated that the Board did not consider age in making its decision. Kansier Decl. ¶ 26. DeGaetano also said that he did not consider age in making the decision. Def. MSJ, Ex. 58 at 98 [Dkt. 256-59]; Def. MSJ, Ex. 36 ¶ 8 [Dkt. 256-37]. The FAA estimated that the Lockheed contract would save taxpayers about $2.1 billion over the ten-year life of the contract. Def. MSJ at 28. The FAA ultimately announced the decision to award the contract to Lockheed on February 1, 2005. Id. at 29.
The FAA issued RIF notices to all FS employees covered by the Lockheed contract in July 2005. Def. Opp. Facts at 18; Pl. MSJ, Ex. 19 [Dkt. 263-23]. The RIF occurred on October 3, 2005, thereby terminating plaintiffs’ employment with the FAA. Def. Facts ¶¶ 111, 114. Not every FS specialist hired by the FAA lost his or her government position because the FAA permitted some individuals to continue in positions other than as FS specialists. See Def. MSJ at 41.
E. Administrative Challenges to the RIF After the FAA announced that Lockheed had won the award, the MEO and Kathleen Breen — as the agent for the FS specialists — each filed contests with the Office of Dispute Resolution for Acquisition to challenge the decision. Def. Facts ¶¶ 101-03; Neill Opinion at 3. Judge Edwin B. Neill of the General Services Administration Board of Contract Appeals served as the Special Master overseeing the contests. Def. Facts ¶ 105. Judge Neill ultimately rejected both contests in their entirety, applying standards of review that ask whether the agency decision had a rational basis, whether it was arbitrary, capricious or an abuse of
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discretion, and whether it was supported by substantial evidence. Neill Opinion at 61; Def. Facts ¶ 106. FAA Administrator Blakey adopted Judge Neill’s findings of fact and recommendations in full. Id. ¶ 107. Breen did not further appeal this determination. Def. MSJ at 31.
In 2005, nine plaintiffs filed this lawsuit on their own behalf and as representatives of 834 others, alleging disparate treatment and disparate impact claims under the ADEA. See First Amended Class Action Complaint [Dkt. 3]. Judge Richard W. Roberts of this Court denied plaintiffs’ motion for a preliminary injunction against the RIF on September 30, 2005, see Breen v. Mineta, No. 05-0654, 2005 WL 3276163, at *10 (D.D.C. Sept. 30, 2005), and denied defendants’ motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment on January 8, 2007. See Breen v. Peters, 474 F. Supp. 2d 1, 9 (D.D.C. 2007). Defendants thereafter filed this motion for summary judgment. Plaintiffs filed a cross motion for summary judgment on the disparate impact claim, but later withdrew the motion. See Plaintiffs’ Unopposed Motion to Withdraw Their Cross Motion for Summary Judgment [Dkt. 306].
II. LEGAL FRAMEWORK Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Baumann v. District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015); FED. R. CIV. P. 56(a), (c). In making that determination, the Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Baumann v. District of Columbia, 795 F.3d at 215; see Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). A disputed
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fact is “material” if it “might affect the outcome of the suit under the governing law.” Talavera v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute over a material fact is “genuine” if it could lead a reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Grimes v. District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir. 2015); Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir. 2012). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)); see also Tolan v. Cotton, 134 S. Ct. at 1866; Baumann v. District of Columbia, 795 F.3d at 215; Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015).
The ADEA prohibits discrimination by an employer against employees based on age. See 29 U.S.C. § 623(a)(1) (making it unlawful “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age”). Section 633a of the statute extends ADEA protections to most federal employees, providing that all personnel actions affecting federal employees “shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). There are two types of ADEA claims at issue here: (1) disparate treatment, by which “plaintiffs seek to prove an employer intentionally treated some people less favorably than others because of their age,” Aliotta v. Bair, 614 F.3d 556, 561 (D.C. Cir. 2010); and (2) disparate impact, by which plaintiffs “must show that a facially neutral employment policy or practice has a significant disparate impact on a protected class of which he is a member.”
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Jianqing Wu v. Special Counsel, Inc., 54 F. Supp. 3d 48, 54 (D.D.C. 2014), aff’d sub nom. No. 14-7159, 2015 WL 10761295 (D.C. Cir. Dec. 22, 2015).
The Court now proceeds to a discussion of the legal framework for analyzing each of the plaintiffs’ separate claims — disparate treatment and disparate impact — and an examination of whether the plaintiffs have proffered sufficient evidence to create a genuine issue of material fact entitling them to a trial.
III. DISPARATE TREATMENT CLAIM “Under both Title VII and the ADEA, a plaintiff can prove her case with either direct or circumstantial evidence.” Burford v. Yellen, --- F. Supp. 3d ----, 2017 WL 1214398, at *7 (D.D.C. Mar. 31, 2017) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009)). “A plaintiff may prove . . . her claim with direct evidence, for example through a statement that itself shows . . . bias in the employment decision. Alternatively, a plaintiff may base her claim on circumstantial evidence under the familiar McDonnell Douglas burden-shifting framework.” Nurriddin v. Bolden, 818 F.3d 751, 758 (D.C. Cir. 2016) (citations omitted). That burden-shifting framework, first developed under Title VII, “also applies to claims for age discrimination under the ADEA.” Hunter v. Rice, 531 F. Supp. 2d 185, 191 (D.D.C. 2008); see also Duncan v. Johnson, 213 F. Supp. 3d 161, 182 (D.D.C. 2016) (same).6 The McDonnell Douglas burden-shifting framework contains three steps, the first of which is that a plaintiff must establish a prima facie case of age discrimination under the ADEA. See Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). “In Title VII and ADEA

6

Plaintiffs contend that they have direct rather than circumstantial evidence of

discrimination on the basis of age. Pl. Supp. Rep. at 8. For the reasons explained infra at 23 n.9,

the Court finds that none of plaintiffs’ evidence is direct evidence of discrimination on the basis

of age.

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cases alleging disparate treatment, a plaintiff establishes a prima facie case of discrimination by pleading facts from which it can reasonably be inferred that ‘(1) he is a member of a protected class, (2) he suffered an adverse employment action, and (3) the unfavorable action gives rise to an inference of discrimination (that is, an inference that his employer took the action because of his membership in the protected class).’” Bartlette v. Hyatt Regency, 208 F. Supp. 3d 311, 321-22 (D.D.C. 2016) (quoting Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014)).
Second, if the employee makes out a prima facie case, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the challenged action. Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016). Third, if the employer does so, the McDonnell Douglas burden-shifting analysis “falls away,” id., and “the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of [age], race, color, religion, sex, or national origin?” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also Gaujacq v. EDF, Inc., 601 F.3d 565, 576 (D.C. Cir. 2010). “The employee can survive summary judgment by providing enough evidence for a reasonable jury to find that the employer’s proffered explanation” for an adverse employment action “was a pretext for retaliation or discrimination.” Morris v. McCarthy, 825 F.3d at 668; see Nurriddin v. Bolden, 818 F.3d at 758-59.
The Court turns to an analysis of plaintiffs’ disparate treatment claim by first addressing two preliminary legal issues: (1) what is the adverse employment action in this case, and (2) what is plaintiffs’ burden on the issue of causation or the inference of discrimination. The Court will then evaluate defendants’ asserted legitimate, nondiscriminatory reasons for the
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adverse employment action. Finally, the Court will assess plaintiffs’ evidence that defendants’ asserted legitimate, nondiscriminatory reasons were actually pretext for discrimination on the basis of age. In that respect, the Court will begin with plaintiffs’ strongest evidence of pretext — defendants’ widespread comments during the A-76 process related to age — and conclude with a discussion of various alleged procedural irregularities in the A-76 process.
A. Preliminary Legal Issues First, defendants argue that plaintiffs may challenge only the RIF itself and not the decisions leading up to the RIF because the RIF was the only adverse employment action in this case. See Def. MSJ 49-54; Def. Supp. Rep. at 2-5. As just noted, to maintain an ADEA disparate treatment claim, “plaintiffs must show they suffered an adverse employment action.” Aliotta v. Bair, 614 F.3d at 566. Such adverse employment actions include “‘ultimate employment decisions’” like “‘hiring, granting leave, promoting, and compensating.’” Easy v. Newport, --- F. Supp. 3d ----, 2017 WL 2062851, at *5 (D.D.C. May 12, 2017) (quoting Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997)). Defendants contend that the FAA’s decisions leading up to the RIF — including, inter alia, the decisions to (1) undertake an A-76 process, (2) classify FS specialists as commercial rather than governmental or core as opposed to noncore, and (3) solicit and evaluate different bids — are not “adverse employment action[s].” Def. MSJ at 49. On defendants’ theory, those “antecedent decisions” instead were “about who the employer even is or will be” and “what lines of business an employer decides to undertake,” and they therefore cannot be the basis for an age discrimination claim. Id. A disparate treatment discrimination claim, they maintain, cannot be based on “the employer’s decision not to have any such jobs to offer,” or to engage in some lines of business but no longer in others. Id. at 49, 50-51, 53.
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The Court agrees with the defendants that the RIF is the only adverse employment action about which plaintiffs may complain. But the process by which the defendants arrived at the RIF decision is relevant to defendants’ motives in taking that action, the defendants’ argument that it had legitimate, nondiscriminatory reasons for its action, and plaintiffs’ claim of pretext. The Court therefore finds that certain decisions leading up to RIF of the entire FS workforce are relevant for the factfinder to consider.
Second, defendants argued in earlier briefs that plaintiffs must show “but for” causation to satisfy their evidentiary burden and cited Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), in support of that proposition. Def. Reply at 18-20. The Supreme Court established in Gross that, in an ADEA disparate treatment case where there are alleged mixed motives (legitimate and non-legitimate) for the adverse employment action, the plaintiff “must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” 557 U.S. at 180. Its analysis was based on the statutory provision governing private employers, 29 U.S.C. § 623(a)(1). Id. at 177. Since Gross, however, the D.C. Circuit in Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010), held that a different burden applies when the federal government is the defendant and the claim is brought under 29 U.S.C. § 633a; it based its analysis on the difference in the language of Sections 623 and 633a. 629 F.3d at 205-06. Under Section 633a, courts must look for “the existence of [any discriminatory] influence” that may “taint[] a personnel action.” Id. at 206. Therefore, plaintiffs can use either “the McDonnell Douglas evidentiary framework to establish that age was the but-for cause of the
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challenged personnel action,” or they may establish liability “by showing that age was a factor in the challenged personnel action.” Id. at 207 (emphasis added).7
B. Legitimate, Nondiscriminatory Reasons An employer’s burden to demonstrate a legitimate, nondiscriminatory reason at step two of McDonnell Douglas is “one of production, not persuasion.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004). “The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff[.]” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). “[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason for the decision, the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d at 494. Here, there is no serious dispute that plaintiffs satisfy the first two prongs of a prima facie ADEA claim: protected class and adverse employment action. Plaintiffs are all over 40 years old and the RIF resulted in the termination of their federal employment. Pl. MSJ at 53. Defendants dispute the third prong, that the record permits an inference of discrimination on the basis of age, because they maintain that they had three legitimate, nondiscriminatory reasons for undertaking the A-76 process for the FS function that resulted in the RIF: (1) the general decline

7

The D.C. Circuit in Ford v. Mabus also established that for a plaintiff in such a

disparate treatment claim to be entitled to merit reinstatement and back pay, the plaintiff must

show but-for causation. 629 F.3d at 207. If the plaintiff proves only that age is “a factor” in the

decision, then that plaintiff can obtain declaratory and possibly injunctive relief. Id. The D.C.

Circuit did not speak to what level of causation is necessary for a plaintiff to obtain

compensatory money damages.

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in demand for the work done by FS specialists because of a decline in licensed pilots and flights and an increase in modern technologies that could perform FS work, Def. Reply at 37; (2) the PMA mandate to outsource commercial work, id. at 39; and (3) decades of pressure on the FAA to save money. Id. at 43; see also supra at 3-5 (cataloguing the record support for defendants’ claims).8
As to defendants’ first justification, the D.C. Circuit has acknowledged that implementing a RIF “to respond to decreased workload” may be a legitimate, nondiscriminatory reason for an employer to take adverse employment actions against certain employees. See Aliotta v. Bair, 614 F.3d at 564. Plaintiffs argue, however, that the decline in demand for FS specialists was “questionable” at the time of the RIF and is now a “post hoc rationalization” for the RIF. See, e.g., Pl. MSJ at 30-31. Plaintiffs support these assertions by alleging that there is a lack of record evidence showing that defendants identified the decline in the need for FS specialists as a basis for the A-76 process and the RIF. Id. The Court finds, however, that there is some support in the record for defendants’ position that the FS function was growing increasingly obsolete due to technological changes in the years before the RIF, and that defendants considered this record evidence at the time of the A-76 process and the RIF. See Def. MSJ, Ex. 3 at VII-16-18; Def. MSJ, Ex. 42 ¶ 6 [Dkt. 256-43]; Def. MSJ, Ex. 53 at 59

8

Plaintiffs also lodge several critiques concerning how the FAA ran its A-76

process that are beside the point. See, e.g., Pl. Supp. Br. at 8-9. First, plaintiffs contend that it

was not true that the PMA required a single workforce to be outsourced — it was the practice of

all other agencies in 2003 to outsource multiple workgroups — and it is not true that FS was the

only workforce large enough to satisfy the PMA minimum requirement. Id. at 8. Plaintiffs also

suggest that the FAA’s choice to outsource FS function was “at odds” with the usual types of

jobs the PMA designates as suitable for outsourcing such as payroll, data collection, and other

commercial activities that are readily available in the private market. Id. at 8-9. The Court does

not view plaintiffs’ arguments here as rebutting the FAA’s legitimate, nondiscriminatory reasons

for the RIF.

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[Dkt. 256-54]; Def. MSJ, Ex. 61 at 26 [Dkt. 256-62]; Def. MSJ, Ex. 62 at 73-74 [Dkt. 256-63]; Def. MSJ, Ex. 80 at 33-34 [Dkt. 256-81]; Def. MSJ, Ex. 84 at 50 [Dkt. 256-85]; see also supra at 3-5. At trial, the parties will be able to present evidence with respect to the decline in the need for FS specialists, and the factfinder can then determine whether, and to what extent, this was a legitimate reason for the FAA’s adverse employment action. It will be up to the factfinder to decide whether decreased workload was a real reason for the adverse personnel decision or whether it was a pretext for age discrimination.
The Court will simultaneously address defendants’ asserted second and third legitimate, nondiscriminatory reasons for the A-76 process and the RIF — the PMA’s mandate to outsource commercial work and cost savings generally — because both go to the issue of cost reduction. Plaintiffs challenge these assertions that cost savings supported contracting out the FS function to a private entity, arguing that defendants “significantly overstate the amount of money to be saved from contracting out the Flight Service.” Pl. MSJ at 67; see also Pl. Supp. Br. at 10. The Court finds that there are genuine issues of material fact concerning cost savings as a possible legitimate, nondiscriminatory reason for the RIF. The original estimate for how much the FAA would save by outsourcing FS was $12 billion over 10 years. Def. MSJ, Ex. 29 at P00582 [Dkt. 256-30]. But after choosing Lockheed as the winning bidder, the FAA then estimated that it would save only $2.1 billion over the ten-year life of the contract. Def. MSJ at 28. And John Hennigan — the deputy CFO — said in his deposition that the FAA did not actually know the costs of running the FS function. Pl. MSJ, Ex. 12A at 56-58 [Dkt. 265-9]. Resolving such conflicting inferences from the evidence in the record is “precisely the type of function we leave to the [factfinder], not to a judge ruling on a summary judgment motion.” Morris v. McCarthy, 825 F.3d at 672.
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In sum, drawing all reasonable inference in plaintiffs’ favor, the Court finds ample evidence in the record to create genuine issues of material fact concerning whether decreased demand for the work of FS specialists and cost savings motivated the FAA’s decision to subject the plaintiff FS specialists to a RIF. Furthermore, based primarily on defendants’ widespread comments related to age — a matter to which the Court next turns — a reasonable factfinder could find that defendants intentionally discriminated against the plaintiffs on the basis of their age. Defendants therefore are not entitled to summary judgment on plaintiffs’ disparate treatment claim.
C. Widespread Comments Related to Age Plaintiffs’ best evidence demonstrating disparate treatment consists of defendants’ widespread comments related to age, specifically the terms “aging workforce” and “retirement eligible workforce.” Pl. Supp. Rep. at 8. Defendants admit that FAA managers used these terms, but argue that (1) the speakers were not decision makers in the A-76 process or with respect to the RIF itself, and (2) the speakers’ comments related to age were legitimate in the context and under the circumstances in which they were made. Def. Reply at 23-27. Marion Blakey — the FAA Administrator during the time after Christopher Bertram decided to undertake the A-76 process — made a number of age-based remarks. First, in September 2004 when discussing the reasons to subject the FS function to outsourcing at a FS Managers Conference, Administrator Blakey expressed concern about the FS’s “aging workforce.” Pl. Supp. Br., Ex. 4 at 98-99 [Dkt. 309-4]. Second, in a meeting with NAATS Union President Kathleen Breen and other union members, Administrator Blakey responded to a question about rehiring the FS specialists by saying “it wouldn’t be in the best interest of the taxpayers to give these jobs to them with their current age and that they’re ready for retirement.”
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Pl. MSJ, Ex. 33 at 101 [Dkt. 265-24]; see also Pl. MSJ, Ex. 34 at 130-32 [Dkt. 265-25]; Breen Dep. at 101. Third, Administrator Blakey allegedly told former FS specialist Homer McCready that he could not be rehired because he was too old. Pl. Supp. Br., Ex. 6 ¶ 7 [Dkt. 309-6]. Fourth, the prepared text for Administrator Blakey’s speech promoting the A-76 process listed the “retirement eligible workforce” as a basis for it. Pl. MSJ, Ex. 55 at P01166 [Dkt. 265-43]. Finally, Administrator Blakey gave a presentation describing the alleged retirement eligibility of 40% of the workforce as a “dilemma.” Id. at P00633. Administrator Blakey justified the use of the terms “aging workforce” and “retirement eligible” by saying that an older workforce makes it difficult to recruit and retrain new workers when the older workers started to retire. Pl. Supp. Br., Ex. 4 at 89-90 [Dkt. 309-4].
Joann Kansier — the Director of the Office of Competitive Sourcing at FAA — also referred to the age of FS specialists on several occasions. In her slide presentation to OMB and the Air Traffic Controllers Association promoting the A-76 process, a slide describing the reasons for selecting FS for the A-76 competition listed “aging workforce” as a primary reason. Pl. MSJ, Ex. 20 at P001128, P001155, D007311, D007314, D007682, D007686 [Dkt. 265-12]. It appears that Kansier gave this presentation numerous times. Kansier changed the “aging workforce” language in later presentations to “retirement eligible.” Id. at P00003, D007189, D007193, P004428. Kansier also called FS specialists “disgruntled” during her deposition as another reason for the action. Pl. Supp. Br., Ex. 8 at 167 [Dkt. 309-8]. Finally, Jack Nimmo — a former manager at an Arkansas FS station — said in his deposition that in 2001, FAA employees developing the feasibility study for the A-76 competition frequently used the
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terminology “aging workforce” and that the term came into use before he was drawn into the group. Pl. MSJ, Ex. 54 at 120 [Dkt. 265-42].9
Defendants argue that these statements do not raise genuine issues of material fact requiring a trial. First, they maintain that the individuals who made these statements were not the decision makers and that only statements made by decision makers matter in a disparate treatment case. Def. Reply at 23-27. Because CFO Christopher Bertram and his deputy, John Hennigan, made the strategic decision to undertake an A-76 process — not Administrator Blakey, Kansier, or Nimmo — defendants maintain that these statements are of no moment. Def. MSJ at 75-78. It is established, however, that statements evidencing discrimination on the basis of age by persons other than the ultimate decision maker are relevant if the speaker had “had the ability to influence [the ultimate decision maker’s] decision.” See Hall v. Giant Food, Inc., 175 F.3d 1074, 1079-80 (D.C. Cir. 1999); see also Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998) (asking whether the speaker “was in a position to influence the alleged decision). For example, under “the so-called ‘cat’s-paw’ theory of liability[,] . . . the discriminatory animus of a subordinate who recommends an adverse employment decision is imputed to the selecting officer who relies on the subordinate’s recommendation” and “an employer may be held liable for discriminatory acts by a direct

9

As discussed supra at note 6, plaintiffs contend that these widespread comments

related to age constitute direct evidence of discrimination. The Court concludes that they are, at

best, indirect evidence of age discrimination. “[D]irect evidence” is, “for example, . . . a

statement that itself shows racial bias in the employment decision.” Nunnally v. District of

Columbia, --- F. Supp. 3d ----, 2017 WL 1080900, at *5 (D.D.C. Mar. 22, 2017) (quoting

Nurriddin v. Bolden, 818 F.3d at 758). Defendants’ comments related to age do not manifest

defendants’ discriminatory intent on their face because, unlike a racial or ageist slur, they are

subject to multiple interpretations, as the Court will discuss. See infra at 26-28.

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supervisor — even where that supervisor is not the final decision maker . . . .” Brandli v. Micrus Endovascular Corp., 209 F. Supp. 3d 356, 361 (D.D.C. 2016) (internal quotation marks omitted).
Here, plaintiffs do not dispute that Bertram and Hennigan were the ultimate decision makers, nor do they allege a “cat’s paw” theory. Nonetheless, taking the facts alleged in the light most favorable to plaintiffs, a reasonable factfinder could find that the Administrator of the FAA — the person in charge of the entire agency — and the Director of the important Office of Competitive Sourcing had the ability to influence Bertram and Hennigan. After all, Administrator Blakey and Director Kansier listed “aging workforce” or “retirement eligible workforce” as primary reasons for the A-76 during presentations to other FAA employees, and they were high-level officials speaking for the agency. See Pl. MSJ, Ex. 20 at P001128, P001155, D007311, D007314, D007682, D007686 [Dkt. 265-12]. Furthermore, as plaintiffs suggest, it is possible that Administrator Blakey and Kansier did not prepare those presentations on their own, but instead had input from the agency’s ultimate decision makers, see Pl. Supp. Br. at 6 n.4, a matter that can be considered by the factfinder at trial. In addition, Nimmo — who defendants admit was a member of the FAA’s working group to develop an action plan for considering the FS function for an A-76 process, see Def. Opp. Facts at 7 — stated that the use of the term “aging workforce” was prevalent at the FAA before he arrived in 2001. Pl. MSJ, Ex. 54 at 120 [Dkt. 265-42]. These were not isolated or stray remarks, and they therefore are appropriate for consideration by the factfinder at trial on the issue of pretext. See Wilson v. Cox, 753 F.3d 244, 247-48 (D.C. Cir. 2014); see also Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d at 355.
Second, defendants argue that the speakers’ statements related to age were legitimate comments in the context in which the speakers made them. They contend that it was
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legitimate for the FAA to be concerned about how to ensure that the next generation of workers would be “fully and timely trained” for such a highly skilled position. Def. MSJ at 77. For example, FAA Administrator Blakey made the following statement during her deposition:
I think the emphasis on retirement eligible means that . . . you are going to have a significant change in the population of people who will be leaving federal service and . . . you are going to have significant recruitment, significant training. In this case [retirement eligible] also indicates . . . that you have got a lot of people who will be able to take advantage of federal retirement benefits on a full basis. Pl. Supp. Br., Ex. 4 at 90 [Dkt. 309-4]. Defendants’ position is that these and similar “aging workforce” or “retirement eligible” comments reflect legitimate, nondiscriminatory business concerns — primarily the need to transition from an older generation of FS specialists to a younger generation. Def. MSJ at 76-78; Def. Reply at 26.
The problem with defendants’ argument is plain. The statements of Administrator Blakey and others emphasizing the need to recruit and train new FS specialists are in direct conflict with defendants’ own asserted justification for the A-76 process and the RIF — namely, that the FAA was not hiring any new FS specialists as older ones retired because the FS function was growing increasingly obsolete due to technological changes in the years before the RIF. Def. MSJ at 15-16. See supra at 3-4. If defendants’ business justification for outsourcing the FS function is true, a reasonable factfinder would understandably view with some skepticism defendants’ stated concern about recruiting and training a new generation of FS specialists. “Pretext may be shown with evidence that the employer’s reason for the termination has changed substantially over time,” Loeb v. Best Buy Co., Inc., 537 F.3d 867, 873 (8th Cir. 2008), and doubt may be cast on the employer’s proffered reasons by, “among other things, pointing to changes and inconsistencies in the stated reasons for the adverse action.” Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013) (internal quotations marks omitted). A reasonable factfinder in
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this case could easily conclude that defendants’ asserted business justification was not the real
reason for the RIF of the FS function. The Court concludes that defendants’ widespread
comments related to age — in particular, uses of the terms “aging workforce” and “retirement
eligible” — create a genuine issue of material fact concerning pretext that only a factfinder can
resolve.10
Defendants’ contradictory explanations for their actions also make it
inappropriate for the Court to defer to defendants’ business judgment at the summary judgment
stage, as defendants request. See Def. MSJ at 55-57. As the D.C. Circuit has said: “[C]ourts
should not evaluate the reasonableness of the employer’s business decisions, such as whether it
made financial sense to terminate an employee who generated substantial revenue; [courts] are
not ‘a super-personnel department that reexamines an entity’s business decisions.’” DeJesus v.
WP Co. LLC, 841 F.3d 527, 534 (D.C. Cir. 2016) (quoting Adeyemi v. District of Columbia,
10 Defendants cite a number of cases where courts have found comments related to age to be nondiscriminatory in the context in which they were made. See, e.g., Apsley v. Boeing Co., 691 F.3d 1184, 1202-03 (10th Cir. 2012) (general manager’s belief that “an older workforce was indicative of an unhealthy business” and his concern “about the aging workforce” were not indicative of age discrimination because “an aging workforce indicates that a business is not growing because it suggests the business is not hiring new employees”); Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548-49 (6th Cir. 2004) (statements made by various members of Lockheed’s management about general need to lower the average age of workforce were not discriminatory because the speakers were concerned that the industry was in danger of having a high percentage of its most important, highly skilled workers retire soon; “the concern was that most of the workers with critical skills were eligible or nearly eligible for retirement, and that when those people retired the nuclear industry could potentially suffer dearly”); Mereish v. Walker, 359 F.3d 330, 336-37 (4th Cir. 2004) (comments about protecting “the young, bright, junior scientists” and the “‘problem’ of the ‘average age going higher’” were legitimate because the speaker was concerned that “a significant portion of the agencies’ scientists might retire at the same time and thus result in a sudden loss of a “critical mass of expertise and knowledge in certain areas”). In none of those cases, however, did the employer offer contradictory explanations for its actions requiring a factfinder to address the contradiction. Here, the contradiction presents a question central to this case: Did defendants need to recruit and train a new generation of FS specialists, or was there never an intent to replace FS specialists because their function was increasingly obsolete because of technological changes?
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525 F.3d 1222, 1227 (D.C. Cir. 2008)). But here, a reasonable factfinder could find that defendants’ primary proffered legitimate, nondiscriminatory reason for the RIF — the increasing obsolescence of the FS function — was so inconsistent with the deposition testimony of management officials about the need to recruit and train a new generation of FS specialists that the FAA’s stated justification could not be viewed as reasonable by a factfinder and might well “provoke[] suspicion of mendacity.” See id. “In other words, the [factfinder] might hear [defendants’] explanation” for the RIF “and think: ‘[they don’t] really believe that.’” See id.
In sum, the contradiction inherent in defendants’ explanation for the RIF and management’s widespread comments related to age create a genuine issue of material fact as to whether defendants’ proffered reasons for the RIF were pretext for discrimination on the basis of age. Here, there is more than sufficient evidence for a reasonable factfinder to conclude that the reason proffered was not the real reason and that the FAA intentionally discriminated against the employees on the basis of age. See Wilson v. Cox, 753 F.3d at 247-48. The Court therefore will deny defendants’ motion for summary judgment on plaintiffs’ disparate treatment claim.
D. Procedural Irregularities Plaintiffs also argue that their disparate treatment claim should survive summary judgment in part because a number of “procedural irregularities” leading up to or during the A-76 process and the RIF suggest discrimination on the basis of age — specifically, that the FAA “departed from its own procedures” and those set forth in the Presidential Management Agenda, the PMA. Pl. Supp. Br. at 7-14. These alleged irregularities include: (1) designating the FS function as a non-core function that was “[n]either [r]equired by the PMA nor [c]onsistent with the FAA’s [o]wn [p]rocedures,” see id. at 7-11; (2) entering into a contract with Grant Thornton to assess the feasibility of outsourcing the FS function that would pay the contractor
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millions, see id. at 11; and (3) ensuring the failure of the Most Efficient Organization, the MEO (which would have allowed FS specialists to stay employed by the federal government) during the bidding process. See id. at 11-13.
1. FAA’s Designation of the FS Function as “Non-Core” Designating a workforce as “non-core” is an essential prerequisite to outsourcing that workforce under the PMA. Pl. Supp. Br. at 7. Plaintiffs state that the designation of the FS function as non-core was “at odds with prior FAA practice, the practice of other agencies, and guidance from the OMB and the PMA.” Id. at 7. They contend that doing so “ignored the longstanding treatment of this Service as an important governmental function” by Congress and the President, both of which allegedly considered FS specialists alongside Aircraft Separating Controllers as inherently governmental functions. Id. at 7-8. Finally, plaintiffs question the timing of the designation because the FS function was only designated as “non-core” after the FAA had decided to subject it to competition. Id.; see also Pl. MSJ, Ex. 13 at 21-23, 74-75 [Dkt. 265-10]. “[M]inor procedural irregularities in personnel practices . . . do not [themselves] give rise to an inference of discrimination.” Moore v. Pritzker, 204 F. Supp. 3d 82, 94 (D.D.C. 2016) (internal quotation marks and alternations omitted). Likewise, whether defendants’ conduct broke from “longstanding treatment” of FS specialists as an important governmental function will not support a claim of disparate treatment. But whether the FAA deviated from its own prior practices or those of other agencies may be relevant evidence with respect to the issue of pretext. As the D.C. Circuit has said: “Employees may cast doubt on the employer’s proffered reason by, among other things, pointing to ‘changes and inconsistencies in the stated reasons for the adverse action; [or] the employer’s failure to follow established procedures or
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criteria . . . .’” Evans v. Sebelius, 716 F.3d at 620 (quoting Brady v. Office of Sergeant at Arms,
520 F.3d at 495 n.3). After all, the central question at the heart of the Court’s inquiry under
McDonnell Douglas is: Was defendants’ adverse employment action motivated by legitimate,
nondiscriminatory business reasons or by discrimination on the basis of age? And might
plaintiffs’ evidence of procedural irregularities in the core versus non-core designation tip the balance on the issue of pretext?11 The Court finds that there is sufficient evidence in the record
to permit a reasonable factfinder to consider these issues.
2. The Grant Thornton Contract
Next, plaintiffs argue that Grant Thornton — the accounting firm with which the
FAA contracted in 2002 to study whether it was feasible to outsource the FS function — was not
independent because it had conflicts of interest. Pl. Supp. Br. at 11. Plaintiffs contend that the
contract provided Grant Thornton business worth $1.5 million for 5 years, but only if the
contractor found that outsourcing the FS function was feasible. Id. The Court finds that the
plain language of Grant Thornton’s contract with the FAA contains no such provision. See Pl.
MSJ, Ex. 60 [Dkt. 265-47]. The contract mentions neither FS specialists nor any other FAA
11 Defendants argue that 49 U.S.C. § 46110(a) vests the D.C. Circuit with exclusive jurisdiction to adjudicate plaintiffs’ challenge to the FAA’s core versus non-core designation. Def. Supp. Rep. at 7. Judge Roberts rejected a similar argument that defendants made in their motion to dismiss, holding that “[n]either the FAA nor the [Office of Dispute Resolution for Acquisition] has authority to hear a complaint of age discrimination,” and so any appeal to those bodies “could not have encompassed plaintiffs’ age discrimination claims.” Breen v. Peters, 474 F. Supp. 2d at 6. As such, “plaintiffs’ ADEA claim [wa]s not inescapably intertwined with the July 2005 Order, and district court jurisdiction [wa]s not precluded.” Id. Defendants now attempt to resurrect this jurisdictional argument. Def. Supp. Rep. at 7-8 (citing Ligon v. LaHood, 614 F.3d 150 (5th Cir. 2010); Jones v. United States, 625 F.3d 827 (5th Cir. 2010); Griggs v. LaHood, 770 F. Supp. 2d 548 (E.D.N.Y. 2011)). The Court understands plaintiffs’ argument to be that the FAA’s “procedural irregularities” — and not the FAA’s order itself — are evidence of discrimination on the basis of age. There is no basis to revisit Judge Roberts’ earlier reasons for rejecting defendants’ jurisdictional challenge.
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workforce, and instead Grant Thornton was to provide general assistance to the FAA to help it
achieve the mandate of the PMA. See Pl. MSJ, Ex. 60 [Dkt. 265-47]. There is no evidence in
the record to permit a reasonable factfinder to consider this supposed procedural irregularity.
3. Handicapping the MEO
Plaintiffs next claim that defendants handicapped the MEO — an alternative
proposal to outsourcing that would have allowed the FS workforce to remain employed by the
FAA — in a variety of ways that ensured its failure vis-à-vis the proposal from Lockheed:
(1) the FAA assigned a human resources consultant to help the MEO team create a transition package, but the team actually “had very little assistance,” see, e.g., Pl. Opp. Facts at 26; Pl. MSJ at 59; Pl. MSJ, Ex. 35 at 49-50 [Dkt. 263-37], and the human resources consultant allegedly worked with the FAA’s Office of Competitive Sourcing at the same time — a conflict of interest that plaintiffs allege the A-76 Circular expressly prohibits, see Pl. Supp. Br. at 12;
(2) the FAA deemed the NAATS union a risk in the MEO’s evaluation because, during the period the MEO was being developed, the FAA delayed bargaining with NAATS on RIF procedures and refused to agree on rehiring procedures, see Pl. Opp. Facts at 27; Pl. MSJ at 59;
(3) the FAA prohibited NAATS members of the MEO from speaking at the oral presentations for the bids, see Pl. MSJ at 60-61; Pl. MSJ, Ex. 35 at 43-48 [Dkt. 263-37];
(4) the FAA also refused to allow the MEO to waive the required age of 56 for retirement, even though it had authority to do so and waived it for the private bidders, see Pl. Supp. Br. at 12; Pl. Supp. Br., Ex. 10 [Dkt. 309-10];
(5) the FAA allowed Lockheed to use parts of the MEO’s proposal once Lockheed’s proposal failed in practice, see Pl. MSJ at 60; Pl. MSJ, Ex. 35 at 8990 [Dkt. 263-37]; Pl. MSJ, Ex. 36 at 137, 139 [Dkt. 263-38]; and
(6) FS division manager Jackson-Brame told plaintiff Angela Bowman in December 2004 that the MEO was “not going to win the bid” and that the Office of Competitive Sourcing was “instructed to make the outsourcing happen”; it was “going to happen no matter what.” See Pl. Supp. Rep., Ex. 3 ¶ 7 [Dkt. 309-3].
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Plaintiffs argue that this evidence “strongly implies an intention on the part of FAA management not to permit the older workforce to remain employed by the Agency,” Pl. MSJ at 61, and shows that the FAA was predisposed to outsourcing the FS function. Pl. Supp. Br. at 13. In sum, they say, “[w]hile it is impossible to be certain that the MEO would have won the competition had the procedures been fair, it is possible to state that, given the handicaps placed on the MEO, there was no possibility that it would win the competition as it was run.” Pl. Reply at 9 n.7.
Defendants respond that issue preclusion bars all arguments about the MEO. Def. Reply at 28-30. Recall that Judge Neill presided over some of the administrative challenges to the FAA’s decision to outsource the FS function to Lockheed. See generally Neill Opinion [Dkt. 256-19]. The doctrine of issue preclusion or collateral estoppel commands that “‘once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.’” United States v. All Assets Held at Bank Julius, --- F. Supp. 3d ----, 2017 WL 90658, at *7 (D.D.C. Jan. 10, 2017) (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). “Issue preclusion applies if three conditions are met: ‘First, the issue must have been actually litigated, that is, contested by the parties and submitted for determination by the court. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in the first . . . [case]. Third, preclusion in the second . . . [case] must not work an unfairness.’” Id. (quoting Otherson v. Dep’t of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983)).12
12 It is immaterial to the Court’s issue preclusion analysis that not all of the individual plaintiffs in this case participated in the administrative challenges before Judge Neill because the named plaintiff in this case, Kathleen Breen, litigated the administrative challenge
32

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The Court concludes that the only issue on plaintiffs’ list of six ways the FAA
handicapped the MEO that the parties actually litigated before Judge Neill was the FAA’s
decision to downgrade the MEO due to risks related to the NAATS union. In that respect, Judge
Neill affirmed the agency’s determination that the MEO’s unique relationship to the NAATS
union was a “weakness” in the MEO’s proposal, stating that “mere disagreement with the agency
analysis does not render the evaluation unreasonable.” See Neill Opinion at 77. Issue preclusion
bars plaintiffs from litigating that matter here. Issue preclusion does not bar plaintiffs from
raising any of the other five ways that plaintiffs now allege the FAA handicapped the MEO’s
bid, however, because Judge Neill did not address those arguments.
On the basis of this record evidence, viewed in a light most favorable to the
plaintiffs, the Court finds that there are genuine issues of material fact with respect to the issue of
handicapping the MEO.13
“as agent for a majority of directly affected federal aviation administration employees.” Neill Opinion at 1.
13 Plaintiffs also argue that certain events that occurred after the RIF demonstrate that the FAA systematically attempted to remove older workers and is further evidence of pretext. See, e.g., Pl. MSJ at 61-66; Pl. Reply at 6 n.5; Pl. Supp. Br. at 14. Plaintiffs maintain that defendants put obstacles in the path of older workers who attempted to stay with the FAA through the “bump and retreat” process, which gives FAA employees priority for reassignment to another position within the agency. Pl. MSJ at 61-62. Plaintiffs state that “the FAA has instead given preference to new hires ‘off the street,’” and present statistical evidence that most of the FS specialists rehired by the FAA were under age 40. Pl. MSJ at 62-63; see also Pl. MSJ, Ex. 2 at 7 [Dkt. 263-3]. Defendants respond that FAA Order 3350.2c (Oct. 17, 1994), available at https://www.faa.gov/documentLibrary/media/ Order/3350.2C.pdf (last visited May 4, 2017), governs plaintiffs’ “bump-and-retreat” rights, not the regulations on which plaintiffs rely, 5 C.F.R. §§ 351.701-.705. Def. Supp. Rep. at 15 n.15.
The Court need not resolve this issue because this post-RIF conduct cannot create a genuine issue of material fact on the issue of pretext. The Court has serious doubts about the relevance of the post-RIF hiring plaintiffs have identified because, in order for a federal agency’s post-RIF hiring decisions to substantiate an ADEA claim that the agency used the RIF as pretext, the rehiring must be for “similarly situated” positions. See Aliotta v. Bair, 614 F.3d at 570 (internal quotation marks omitted). Here, the FAA rehired former FS specialists for positions in
33

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IV. DISPARATE IMPACT
Disparate impact claims involve employment practices that are “facially neutral in
their treatment of different groups but that in fact fall more harshly on one group than another
and cannot be justified by business necessity.” Aliotta v. Blair, 614 F. 3d at 561 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)).14 It does not require proof of discriminatory
intent or animus. Id. at 561, 565. To establish a prima facie case of disparate impact, a plaintiff
must show “that a facially neutral employment policy or practice has a significant disparate
impact on a protected class of which he is a member.” Jianqing Wu v. Special Counsel, Inc.,
54 F. Supp. 3d at 54. Proof of the disparate impact on a protected class may be shown through
statistical evidence “of a kind and degree sufficient to show the employment decision
disproportionately impacts older employees.” Aliotta v. Bair, 614 F.3d at 565.
“[T]he employee is ‘responsible for isolating and identifying the specific
employment practices that are allegedly responsible for any observed statistical disparities.’”
Smith v. City of Jackson, 544 U.S. 228, 241 (2005) (quoting Wards Cove Packing Co. v. Atonio,
490 U.S. 642, 656 (1989)) (emphasis in original). “[A] plaintiff ‘cannot attack an overall
human resources, air traffic security, flight data communications, and a variety of other fields not “similarly situated” to the FS function. Def. MSJ at 43 n.39 (citing deposition testimony). The Court therefore concludes that defendants’ post-RIF conduct does not create a genuine issue of material fact on the issue of pretext.
14 Defendants suggest in their supplemental briefs that “it is doubtful” that an ADEA disparate impact claim is cognizable against federal government employers. Def. Supp. Br. at 2. As the D.C. Circuit explained in Aliotta v. Bair, “[a]lthough neither this court nor the Supreme Court has addressed the question whether the ADEA authorizes disparate impact claims against federal employers, we need not resolve the issue in this case . . . .” 614 F.3d at 570. Judges of this Court have reached contrary conclusions on this issue. See Anderson v. Duncan, 20 F. Supp. 3d 42, 58 (D.D.C. 2013) (collecting cases). But even if the Court were inclined to decide this issue for itself, the law of the case precludes ruling in defendants’ favor. In his 2007 opinion denying defendants’ motion to dismiss, Judge Roberts found that the ADEA does authorize disparate impact claims against the federal government. Breen v. Peters, 474 F. Supp. 2d at 6-7. This Court has no reason to disturb this ruling.
34

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decisionmaking process in the disparate impact context, but must instead identify the particular
element or practice within the process that causes an adverse impact.’” Davis v. District of
Columbia, --- F. Supp. 3d ----, 2017 WL 1208388, at *19 (D.D.C. Mar. 31, 2017) (quoting Stout
v. Potter, 276 F.3d 1118, 1124 (9th Cir. 2002)); see also City of Joliet, Illinois v. New West,
L.P., 825 F.3d 827, 830 (7th Cir. 2016) (“Disparate-impact analysis looks at the effects of
policies, not one-off decisions, which are analyzed for disparate treatment.”). Thus, in the
housing context, for example, the Supreme Court has explained that “a plaintiff challenging the
decision of a private developer to construct a new building in one location rather than another
will not easily be able to show this is a policy causing a disparate impact because such a one-
time decision may not be a policy at all.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523 (2015) (“Texas Housing”).15 A plaintiff’s
“oblig[ation] . . . to isolate and identify the specific employment practices that are allegedly
responsible for any observed statistical disparities . . . has bite.” Meacham v. Knolls Atomic
Power Lab., 554 U.S. 84, 100 (2008).
Here, plaintiffs identify the employment policy or practice as “the overall A-76
process” leading to the RIF, as well as “the subsidiary practices of selection of core and non-core
15 At least one court has applied the “one-time decision” language from Texas Housing to disparate impact claims under the ADEA. In Sneed v. Strayer Univ., No. 15-cv-0004, 2016 WL 1023311 (E.D. Va. Mar. 8, 2016), the court granted summary judgment to the defendant on the plaintiffs’ disparate impact claim under the ADEA because the plaintiff “allege[d] a policy of discrimination based on a single action to close down an entire branch” and “present[ed] no evidence that this practice is common or that Defendants ha[d] committed such action before.” Id. at *10. This analysis mirrors how district courts have read the “one-time decision” language in housing cases. For example, in Barrow v. Barrow, No. 16-cv-11493, 2016 WL 6996996 (D. Mass. Nov. 29, 2016), the court held that allegations “that defendants, in various ways, acted to deprive plaintiff of the full value of her inheritance” were not an “allegation of an unlawful practice or policy. A single decision relevant to a single piece of property, without more, is not evidence of a policy contributing to a disparate impact.” Id. at *5.
35

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functions and the selection of [FS] from among the available non-core group functions.” Pl. MSJ at 18; see also Pl. Supp. Br. at 15-16. The Court finds that “the overall A-76 process” leading to the RIF is not a specific employment policy or practice under Texas Housing because the RIF is a “one-time decision” that defendants did not repeat over and over with respect to different employees. Defendants conducted the RIF all at once on October 3, 2005, see Def. Facts ¶¶ 111, 114, and did not repeat the RIF with respect to any employees other than FS specialists. While it is possible that a different RIF may constitute a specific employment policy or practice sufficient to support a disparate impact claim, plaintiffs here fail to show that this RIF was anything more than a “one-time decision” that is not “a policy at all.” See Texas Housing, 135 S. Ct. at 2523; accord Davis v. District of Columbia, 2017 WL 1208388, at *19 (“[n]umerous courts . . . have decided that simply pointing to a RIF generally is not sufficient” to support a disparate impact claim).
The Court also finds that the “subsidiary practices” plaintiffs identify are not specific employment policies or practices under Texas Housing. While defendants likely have designated functions other than FS as core or non-core, plaintiffs did not include any evidence of other such designations in the record. There therefore is no record basis for the Court to conclude that the 2002 decision to designate the FS function as “non-core” while designating other aircraft separating controllers as “core” was part of a policy or practice. Pl. Supp. Br. at 15-16. The one-time nature of defendants’ conduct is even more apparent with respect to plaintiffs’ other alleged “subsidiary practice,” the selection of FS for the A-76 process from among the available non-core group functions. This decision is not even capable of repetition because, by design, defendants undertook the A-76 process to RIF a single workforce. The Court therefore finds that plaintiffs cannot establish a prima facie case of disparate impact on
36

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older workers based on “the overall A-76 process” leading to the RIF or either of the “subsidiary practices” plaintiffs identify.
The Court concludes that the Amended Complaint does not identify a facially neutral policy or practice that led to or caused a disparate impact on a protected class. Plaintiffs thus have failed to establish a prima facie case of disparate impact based on any of defendants’ specific employment practices. The Court therefore will grant summary judgment to defendants on plaintiffs’ disparate impact claim.
V. CONCLUSION For the reasons set forth in this Opinion, the Court will grant defendants’ motion with respect to plaintiffs’ disparate impact claim and deny defendants’ motion with respect to plaintiffs’ disparate treatment claim. An Order consistent with this Opinion shall issue this same day. SO ORDERED.

DATE: May 26, 2017

/s/______________________ PAUL L. FRIEDMAN United States District Judge

37

 
 Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

) C.A. No. 05-00654 (RWR)

)

NORMAN Y. MINETA

)

SECRETARY OF TRANSPORTATION

)

DEPARTMENT OF TRANSPORTATION, et al., )

)

Defendants.

)

)

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ NOTICE OF SUPPLEMENTAL FILING

Plaintiffs Kathleen L. Breen, et al., hereby file their

Reply to Defendants’ Response to Plaintiffs’ Notice of

Supplemental Filing and in support thereof state as follows:

A central issue in this case is whether there is direct

evidence of age-discriminatory intent, as Plaintiffs maintain

there is.

If Plaintiffs can show by “direct evidence” that age

discrimination was a “motivating factor” in Defendants’ decision

to fire the predominantly over 40 (92%) Flight Service

Controllers whose jobs are at issue, then Plaintiffs are

entitled to a finding of liability unless Defendants can prove

by a preponderance of the evidence that they would have taken

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 2 of 5
the same action regardless of the Controllers’ age.1 See Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). The FAA’s slide presentations from January 12, 2003 and June 25, 2003 (Notice, Ex. 1 and 2) provide precisely the kind of direct evidence of discrimination that would support a finding of liability.2
Joann Kansier’s presentation of the “FAA’s Business Case for Competitive Sourcing” (Notice, Ex. 1) describes the “State of AFSS” in the right-hand column as including problems such as “Aging facilities and equipment” and “Imbalanced workload” and most significantly, “Aging workforce.” See id. Other than the revealing term “Aging workforce,” the list is identical to the cleaned up list on the FAA’s website, which substitutes the euphemism “Retirement eligible workforce” for “Aging workforce.” See Plaintiffs’ Application for a Preliminary Injunction (“Application”), Ex. 50. At oral argument on September 1, 2005,
1Though the existence of direct evidence means that Plaintiffs are not required to show discrimination through circumstantial evidence, Plaintiffs can also show age discrimination based on circumstantial evidence through the three-part burden shifting scheme of McDonnell Douglas v. Green, 411 U.S. 792 (1973).
2The government’s counsel grudgingly conceded at oral argument: “I think that it’s very clear that at worst, it would be a mixed motive case.” Tr. at 49:25-50:1.
2

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the Court raised the question of whether statements introduced by the Plaintiffs (such as Ex. 50) should be interpreted to as being age animus. Tr. at 49:20-24. In light of the FAA’s much clearer, stronger inclusion of “Aging workforce” in the list of reasons for contracting out and terminating the Plaintiffs, the FAA’s animus is much more apparent. It is telling that the FAA subsequently felt the need to replace its “Aging workforce” term with the less obviously discriminatory “Retirement eligible workforce.”
The slide from the FAA’s January 12, 2003 program (Notice, Ex. 2) belies Defendants’ assertion that their intense focus on age was merely evidence of their delight in the good fortune of those employees (a clear minority) who were actually eligible to retire and could take a second job. See Defendants’ Response at 2. In fact, the Agency’s January 12, 2003 slide, entitled “Primary Reasons for Proposing Flight Service Stations (FSS) for Study” (emphasis added), lists “Aging workforce” separately from the category “>50% (sic) eligible to retire.” Notice, Ex. 2. A candid observer, even one entertaining the FAA’s implausible rationale, would have to conclude that “Aging workforce” was a separate reason for proposing the FSS for study (and eventual elimination effective October 4, 2005).
3

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 4 of 5
Plaintiffs’ third additional exhibit (Notice, Ex. 3) is evidence that the FAA Administrator’s audience either heard her state that an “Aging workforce” was a concern or understood her to be stating that the Flight Service Controllers are an aging workforce.
Defendants conclude their Response with a bizarre and irrelevant colloquy on how, in some situations, consideration of age could be legitimate. Even if this were so, the situation they describe – recruiting and training younger employees because older employees are going to retire – bears no relationship to the situation at issue in this case – firing the older workers (who are under a mandatory retirement age of 56). See Response at 3-5. If age was a consideration in firing the FAA’s Flight Service Controllers, then it was impermissible and discriminatory as a matter of law.3
3If so, Plaintiffs are entitled at minimum to a finding of mixed motive discrimination.
4

Case 1:05-cv-00654-PLF Document 30 Filed 09/15/05 Page 5 of 5

September 15, 2005

Respectfully submitted,
/s/ JOSEPH D. GEBHARDT
(DC Bar No. 113894) CHARLES W. DAY, JR.
(DC Bar No. 459820) GEBHARDT & ASSOCIATES, LLP 1101 17th Street, N.W. Suite 807 Washington, DC 20036-4716 (202) 496-0400
Counsel for Plaintiffs

5

 
 Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________

)

KATHLEEN A. BREEN et al.,

)

)

Plaintiffs,

)

)

v.

)

)

NORMAN Y. MINETA et al.

)

)

Defendants.

)

______________________________)

Civil Action No. 05-654 (RWR)

MEMORANDUM OPINION AND ORDER

Unless enjoined, the Federal Aviation Administration ("FAA")

will outsource its flight service ("FS") effective October 4,

2005. The FS is currently staffed by approximately 1,935

specially trained – – and by all accounts, very dedicated and

skilled – – air traffic control specialists in approximately 60

FS stations. Approximately 92 percent, or about 1,770, of the

1,935 FS specialists are at least 40 years of age, and a little more than half of those are plaintiffs here.1 Plaintiffs allege

age discrimination by the FAA and its parent agency, the

Department of Transportation ("DOT"), and seek to enjoin them

from proceeding with the outsourcing plan. Defendants oppose the

motion for injunction, arguing that plaintiffs cannot show

irreparable harm and are not likely to succeed on the merits of

the age discrimination claim. Because plaintiffs are not likely

1 The 834 original plaintiffs have filed a motion, still pending, to add some 80 more plaintiffs.

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 2 of 24
-2to succeed on the merits of their age discrimination claim and have not identified legally cognizable harm that is irreparable, plaintiffs’ motion for preliminary injunction will be denied.
BACKGROUND The primary function of the FS specialists is to provide weather and flight information to general aviation pilots, i.e., non-commercial, non-charter pilots. They also coordinate flight plans, provide assistance to pilots who are lost or disoriented and initiate search and rescue activities as needed. Since at least 1996, the DOT’s Inspector General and others have concluded on the basis of audits and studies that the FAA could realize substantial savings without compromising services by using advanced technology to reduce the number of FS stations and specialists. The Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270, § 2, 112 Stat. 2382 (reprinted at 31 U.S.C. § 501 note) (“FAIR Act”), requires federal agencies to categorize activities performed by its personnel as either commercial or inherently governmental. The latter is restricted to those activities that are "so intimately related to the public interest as to require performance by Federal Government employees," which are further defined as those "activities that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 3 of 24
-3Federal Government, including judgments relating to monetary transactions and entitlements." FAIR Act § 5(2). In early 2002, the FAA determined that the FS services are commercial in nature, not inherently governmental. A subsequent feasibility study conducted by Grant Thorton, LLP concluded that the services could be competitively outsourced without compromising safety. Consequently, the FAA selected the FS function for competitive outsourcing. The National Association of Air Traffic Specialists, an organization currently headed by Kathleen Breen, lead plaintiff in this action, challenged the categorization of their function as commercial, but the FAA denied the challenge and the DOT affirmed the FAA’s decision.
In December 2003, the FAA received five proposals in response to its solicitation, one of which was an in-house proposal from FAA employees. Working in teams, ten evaluators with cost expertise and 50 evaluators with technical expertise contributed to evaluating the proposals and submitted recommendations to the FAA’s Source Selection Authority. The Source Selection Authority selected one proposal, Lockheed Martin’s, on the basis of a blind review of all the proposals and the teams’ evaluation reports. The proposals from both Lockheed and the FAA employees envisioned a major consolidation of FS stations and concomitant reduction in the number of stations and

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 4 of 24

specialist positions.2

-4After the award was made to Lockheed in

early 2005, the sponsors of the in-house proposal filed a contest

in which Breen intervened as agent for a majority of the directly

affected FAA employees. Breen also filed a separate contest. A

special master3 appointed to consider and determine the contests

issued a lengthy decision on June 28, 2005 recommending that the

claims be rejected in their entirety. On July 20, 2005, the FAA

Administrator adopted in full the special master’s findings of

fact and recommendations. In March 2005, while that contest was

pending, plaintiffs filed this class action complaint alleging

age discrimination. On July 26, 2005, a few days after the FAA

Administrator, a defendant in this action, adopted the special

master’s ruling, plaintiffs filed this motion for preliminary

injunction.

DISCUSSION

To justify a preliminary injunction, the movant must

demonstrate that (i) the movant is likely to succeed on the

merits of the underlying dispute, (ii) irreparable harm will

2 Both the in-house sponsors and Lockheed Martin proposed “nearly identical transition timetables and similar consolidations in the workforce”: the Lockheed proposals would reduce the FS to 1000 employees in 18 months, while the in-house proposal would reduce the FS to 966 employees in 18 months. (Mem. in Supp. of Pl.’s Application for Prelim. Inj. (“Pl.’s Mem.”) at 28.)
3 Edwin B. Neill, Board Judge for the General Services Board of Contract Appeals, was appointed special master.

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 5 of 24
-5result absent immediate intervention of the court, (iii) any harm to other parties that would be caused by granting the injunction does not outweigh the equities in favor of granting the preliminary injunction, and (iv) granting the injunction serves the public interest. Wisc. Gas Co. v. FERC, 758 F.2d 669, 673-74 (D.C. Cir. 1985); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); Miami Bldg. & Constr. Trades Council v. Sec’y of Def., 143 F. Supp. 2d 19, 23 (D.D.C 2001) (citing cases). These factors interrelate on a sliding scale, so that particularly strong equities on one or some factors may balance weak equities on another. Serono Labs., 158 F.3d at 1317-18.
The threshold requirement among the four, however, is a showing of some irreparable harm flowing from the injury claimed. "‘[T]he basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.’" Sampson v. Murray, 415 U.S. 61, 88 & n.59 (1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959)); accord Dorfmann v. Boozer, 414 F.2d 1168, 1174 (D.C. Cir. 1969) (holding that preliminary injunction is available only when there is no adequate remedy at law); Miami Bldg. & Constr. Trades, 143 F. Supp. 2d at 27 ("For the Court to grant a preliminary injunction, plaintiffs must make some showing that irreparable harm will result absent immediate intervention by the Court."). Irreparable harm requires something more than having to comply

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 6 of 24
-6with or abide by an illegal agency decision pending the outcome of litigation over that decision. Miami Bldg. & Constr. Trades, 143 F. Supp. 2d at 27.
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Virginia Petrol. Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958). I. LIKELIHOOD OF SUCCESS ON THE MERITS Nondiscrimination on account of age in federal government employment is governed exclusively by a specific section of the Age Discrimination in Employment Act (“ADEA”), 28 U.S.C. § 633a (2000). That section requires the FAA, as a federal government employer, to make all its personnel actions "free from any discrimination based on age." 29 U.S.C. § 633a(a). Plaintiffs have advanced two ADEA claims, one premised on disparate treatment and the second on disparate impact. A. Disparate treatment In a disparate treatment case, a plaintiff suing under the ADEA is required ultimately to prove that he suffered an adverse employment decision because his employer acted with discriminatory intent with respect to the plaintiff’s age. Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151, 1154-55

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 7 of 24
-7(D.C. Cir. 2004); Dunaway v. Int’l Bhd. of Teamsters, 310
F.3d 758, 763 (D.C. Cir. 2002). "Clarifying the standards for
liability" in a disparate treatment case under the ADEA, Hazen
Paper Co. v. Biggins, 507 U.S. 604, 606 (1993), the Supreme Court
concluded that "there is no disparate treatment under the ADEA
when the factor motivating the employer is some feature other
than the employee’s age." Id. at 609.
It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. . . . Congress’ promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes. . . . Thus, the ADEA commands that employers are to evaluate older workers on their merits and not their age. The employer cannot rely on age as a proxy for an employee’s characteristics, such as productivity, but must instead focus on those factors directly.
Id. at 610. When an employer’s decision is wholly motivated by
factors other than age, the ADEA is not violated even if the
motivating factor is correlated with age. Id. at 611-12. "The
law requires the employer to ignore an employee’s age . . .; it
does not specify further characteristics that an employer must
also ignore.” Id. at 612 (emphasis in the original).
A plaintiff may offer proof of his employer’s discriminatory
intent either by direct or circumstantial evidence. See Dunaway,
310 F.3d at 763. In the absence of direct evidence, a plaintiff
may advance a disparate treatment claim using the burden shifting
framework adopted in McDonnell Douglas Corp. v. Green, 411

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 8 of 24
-8U.S. 792 (1973), the first step of which is presenting a prima facie case. See Teneyck, 365 F.3d at 1155. If a plaintiff makes a prima facie showing that age was an improper motivating factor in the adverse employment decision, then the burden shifts to the defendant to identify legitimate reasons for its action. The plaintiff can rebut the proffered legitimate reasons by demonstrating that they are mere pretext. Id. at 1151.
To make a prima facie showing of age-based discrimination in this case, plaintiffs must show that they are members of a protected class (i.e., at least 40 years of age), that they are qualified for the positions they hold, that they will be or were disadvantaged by an employment decision, and that they are disadvantaged in favor of substantially younger people. See Teneyck, 365 at 1155; see also O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) ("In the age discrimination context, [an inference of age discrimination] cannot be drawn from the replacement of one worker with another worker insignificantly younger."); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000) (in an ADEA action involving a reduction in force, plaintiff must show, among other things, that other similarly situated employees substantially younger than plaintiff were treated more favorably). If plaintiffs fail to establish that they are disadvantaged in favor of substantially younger people who are in other meaningful respects comparable to

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 9 of 24
-9plaintiffs, they fail to establish a prima facie case of discrimination. See Dunaway, 310 F.3d at 767 (finding that in the absence of other evidence of age discrimination, plaintiff who had been replaced by a worker seven years younger had not made a prima facie showing of age discrimination); Teneyck, 365 F.3d at 1155 (holding that plaintiff failed to establish a prima facie case because she did not offer evidence to support an inference that she was disadvantaged in favor of a younger person); Radue, 219 F.3d at 617-619 (concluding that plaintiff failed to show that other similarly situated employees who were substantially younger than he were treated more favorably).
Plaintiffs do not appear likely to be able to show that the FAA acted with discriminatory intent. First, they have not identified any other comparable group that was substantially younger and was treated more favorably. Plaintiffs assert that the appropriate comparison group is the "2125 Air Traffic Control series," whose average age is “approximately 45 years old.” (Hr’g Tr. at 11, 39, Sept. 1, 2005.)4 They make the point that of all the 2125 positions, it is those who are older that service general aviation pilots, and that the service to general aviation pilots is being outsourced. (Id. at 39.) However, an age difference of less than ten years is not sufficient to support a
4 Plaintiffs’ witness testified that the average age of FAA employees as a whole is “about 47.” (Hr’g Tr. at 11.)

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 10 of 24
-10prima facie inference of age discrimination. See Grosjean v. First Energy Corp., 349 F.3d 332, 338 (6th Cir. 2003) ("The overwhelming body of cases in most circuits has held that age differences of less than ten years are not significant enough to make out the fourth part of the age discrimination prima facie case.") (collecting cases); Dunaway, 310 F.3d at 767 (seven years not sufficient to support inference).
Second, plaintiffs have not offered any evidence that supports a reasonable inference that the FAA made its decision based on inaccurate stereotypical presumptions of reduced productivity and competence of an older workforce. In an effort to bolster their argument that age animus played at least some part in the FAA’s decision, plaintiffs state that FAA Administrator Marion Blakely “equated the so-called ‘retirement eligible workforce’ with one that is in need of an ‘upgrade.’” (Pl.’s Mem. at 94 (quoting Ex. 51).) In fact, Blakely’s statement does not yield the age-discriminatory interpretation urged by plaintiffs. What the FAA Administrator said is that
[e]ach time one of our specialists picks up the phone, it costs the taxpayer an average of $25. Nationwide the bill comes to over a half billion dollars a year, a number which includes salaries for about 2,700 employees. We also know that most of our automated flight service stations are in major need of repair. Almost 40 percent of flight service specialists [are] eligible to retire. So here’s the dilemma: how can we save money and upgrade our equipment and our service to you at the same time?

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 11 of 24
-11(Pl.’s Mem., Ex. 51 at 2.) On its face, the Administrator’s statement identifies (i) excessive costs, (ii) a need for funds to upgrade equipment, and (iii) the probability of attrition of large numbers of experienced personnel in the foreseeable future. Nothing in this statement reveals inaccurate and denigrating generalizations about age. Plaintiffs’ attempts to interpret "upgrades" and "flexibility" as references reflecting age discrimination are unreasonably strained and not capable of establishing a prima facie case of discriminatory intent.
Third, plaintiffs themselves argue and offer evidence that the FAA was motivated by a desire to save costs, and in particular, the costs of salaries and pension benefits related to its FS specialists. Higher salaries and pension benefits are often correlated with age, but the Supreme Court has determined that an employer motivated by a factor that correlates with age does not, without more, violate the ADEA. Hazen Paper, 507 U.S. at 612-13.
Plaintiffs called two witnesses at the hearing on their motion for preliminary injunction. When asked why they believe the FAA acted with age bias, both responded by identifying costs correlated with age, not age-based animus, as the FAA’s motivator.
Q: Ms. Breen, I have a final question for you and that is: Are you convinced that age bias was the reason for this reduction in force and if so, why?

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 12 of 24
-12-
A. Yes, I do, because they can get rid of these higher paid controllers and go out on the street and try to hire people in at $30- or $40,000 less a year. What they don’t realize is the caliber of people that they’re losing.
(Hr’g Tr. at 20.) Plaintiffs’ second witness, Michael John
Sheldon, also identified cost in response to a similar question.
Q: Do you believe that age bias was the motivating decision behind — or the motivating reason behind the decision to RIF [reduction in force] the Flight Service Station Controllers?
. . .
A: I do.
Q: Okay. Tell us why you believe that.
A: The statement I heard from the Administrator, at meetings I’ve attended, she’s indicated that the work force is aging . . . I’m talking about the people that aren’t retirement age at this point, 70 percent of them are within five years of reaching an annuity. And I believe that the FAA’s attempting to try not to have to pay that annuity.
(Hr’g Tr. at 31-32.) Plaintiffs’ filings also reflect this
interpretation of the FAA’s motivation. Plaintiffs assert that
"by denying their pensions the opportunity to vest . . . the FAA
is able to reap a massive windfall . . . ." (Pl.’s Mem. at 44.)
They also state that
[i]f the FAA were a private employer, its actions would be suitable for a challenge under the ERISA, see Hazen Paper, 507 U.S. at 604 [sic], and it is against public policy to allow Defendants to claim the FAA’s indefensible actions are legitimate for purposes of the ADEA.

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 13 of 24
-13(Pl.’s Mem. at 81.) The unavailability of an ERISA action does not give rise to an ADEA action, and despite plaintiffs’ efforts, they have not presented facts sufficient to warrant a conclusion that they will be likely to show that the FAA acted with age animus in its decision to outsource the FS.
The Supreme Court’s decision in Hazen Paper controls this case. There, the evidence suggested that the employer had acted to prevent an employee’s pension from vesting. 507 U.S. at 607. Here, plaintiffs have testified that they suspect the FAA of trying to welch on its pension deal with plaintiffs. There, the employer had offered to retain the employee in a consulting capacity, which would have allowed him to work but prevented his pension from vesting. Hazen Paper, 507 U.S. at 607. Here, Lockheed is required by contract to offer a position to any fulltime regular FS specialist who is affected by the outsourcing and who applies for one of the positions outsourced to Lockheed; furthermore, Lockheed must retain that person for a minimum of three years. (Def.’s Mem. at 21.) In both cases, the evidence supports the conclusion that cost-savings motivated the employer; in both cases, the employers were willing to retain the services of the plaintiffs, a fact that runs counter to a conclusion that the employer acted on the basis of a stereotypical inaccurate assumption of incompetence or lack of productivity. The Court in Hazen Paper pointedly concluded that "[o]ur holding is simply

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 14 of 24
-14that an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service," even though pension benefits and years of service often correlate with age. 507 U.S. at 613. Age animus mixed with other motives could trigger ADEA liability, but where the motivating factors merely correlate with age, a plaintiff cannot state a disparate treatment claim. Id. at 612-13. Here, plaintiffs have offered insufficient evidence that age animus was either the sole or one of multiple reasons for the FAA’s decision. “[T]o the extent that [plaintiffs] link [their] age discrimination claim to the fact [they were nearing pension vesting] and claim[] that [the FAA was] trying to avoid paying [their] retirement benefits, Hazen Paper . . . is dispositive.” Dunaway, 310 F.3d at 767.
In short, the evidence plaintiffs offer indicate that they are not likely to succeed on the merits of their underlying disparate treatment claim.5 Rather, the evidence plaintiffs
5 Even if plaintiffs were able to make a prima facie case of disparate treatment, it is unlikely that they could show that the defendants’ rebuttal is merely camouflage for discrimination. The special master has already examined the challenges to the technical and cost estimates and assumptions underlying the FAA’s decision to award the competitive sourcing contract to Lockheed Martin. Following his exhaustive and detailed discussion of the dispute, he recommended that the "contests be denied in their entirety." Without deciding whether the special master’s determinations of factual issues would have collateral estoppel effect in this court, a conclusion defendants urge (Def.’s Mem. at 63-70), it is hard to imagine what defendants would offer as a legitimate reason for the FAA’s action that was not one of the

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 15 of 24
-15offer makes a prima facie case that cost was paramount in the agency’s decision-making. Without more, actions designed to save costs do not equate with age discrimination, even when those costs are correlated with age. See Hazen Paper, 507 U.S. at 61213.
B. Disparate impact "Disparate impact claims arise from ‘employment practices that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another and cannot be justified by business necessity.’" Smith v. City of Jackson, 351 F.3d 183, 186 (5th Cir. 2003) (citation omitted). To date, the portion of the ADEA enacted specifically to apply to federal employers, 28 U.S.C. § 633a(a), has been interpreted to provide a cause of action for disparate treatment only, and not for disparate impact. See Hazen Paper, 507 U.S. at 610 ("[W]e have never decided whether a disparate impact theory of liability is available under the ADEA[.]"); cf. Smith v. City of Jackson, 125 S. Ct. 1536, 1540 (2005) (plurality) (holding for the first time that the section of the ADEA that applies only to private, not federal, employers authorizes recovery in disparate impact cases). Plaintiffs advance their disparate impact claim in reliance on Smith. 125 S. Ct. at 1540. The decision in Smith, however,
issues already disputed before the special master and sustained.

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 16 of 24
-16derived from an interpretation of 29 U.S.C. § 623, id. at 1541 (citing 28 U.S.C. § 623(f)(1)), a section of the ADEA that expressly does not apply to federal employers. As defendants point out, there is no basis on which to conclude that the federal sovereign has waived its immunity from such suits, which must be express, not implied and inferred through interpretation. (See Def.’s Mem. at 77 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990), among others).) There is good reason to doubt that plaintiffs have a cognizable ADEA disparate impact claim against the FAA and DOT.
Even if a disparate impact claim is available to these plaintiffs, they have not established that they are likely to succeed on the merits, which would require showing (1) that a specific employment practice is responsible for imposing greater injury on the older FS specialists compared to the younger FS specialists who are subject to the same employment practice and (2) that the specific employment practice is not based on a reasonable factor other than age. See Smith, 125 S. Ct. at 1545. 6
6 Plaintiffs erroneously state that “[i]n order to prevail on their disparate impact claim,” they must only show outwardly neutral employment practices and a disproportionate impact. (Pl.’s Mem. at 98.) This formula may establish a rebuttable prima facie case, but it is not a sufficient showing with which “to prevail.” Smith, 125 S. Ct. at 1545.

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 17 of 24
-17With one exception, the anticipated harms plaintiffs identify can be expected to impose equal hardship on those affected, regardless of age. For example, loss of a job, loss of federal employment, loss of civil service protection, unwelcome relocation in order to take a job with Lockheed, loss of any of the current health and life insurance benefits, loss of a bargaining unit, and loss of the benefits negotiated pursuant to the collective bargaining agreement are harms that would fall on all the displaced FS specialists, regardless of age. Plaintiffs have identified only one harm from which older workers will likely suffer disproportionately, namely, lost contributions to their enhanced retirement annuity benefit. The FS specialists are among those few categories of federal employees subject to mandatory early retirement and, concomitantly, eligible for an enhanced retirement annuity. See generally Johnson v. Mayor and City Council of Baltimore, 472 U.S. 353, 363-68 (1985) (discussing the history of the civil service mandatory retirement provisions and the related enhanced retirement annuity in light of the enactment of the ADEA). In order to realize an enhanced retirement annuity, compared to most federal employees, the FS specialists contribute more on a yearly basis to their pension. (See Hr’g Tr. at 7, 16.)7 Plaintiffs assert that if they are
7 As the witnesses explained, FS specialists contribute 1.3 percent of their annual salary to their enhanced retirement annuity account, compared to the .8 percent most federal

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 18 of 24
-18unable to continue under the current system, those not already eligible to retire on October 4, 2005 will lose “all the extra money we put in, that .5 percent we’ve put in over the years . . . . There’s no refunds.” (Hr’g Tr. at 7.) While the loss of this enhanced retirement annuity plan affects the displaced FS specialists regardless of age, the magnitude of the alleged injury can be expected to be greater for those who have made larger contributions, i.e., for those who have made contributions over a longer period of time or with respect to higher salaries. Plaintiffs, however, like the plaintiffs in Smith, 125 S. Ct. at 1545-46, have not provided any specifics, let alone detail, with respect to the magnitude of the differential impact or the mechanism that produces the differential impact. Plaintiffs have neither described the harm in terms of net loss, taking into account what defendants assert is Lockheed’s "generous 401K retirement plan" and other benefits, including social security benefits (see Def.’s Mem. at 23; Hr’g Tr. at 35), nor established that the net loss constitutes a disparate impact on the older workers. In short, plaintiffs have not provided information of sufficient specificity and detail to support a conclusion that
employees contribute. FS specialists who realize their enhanced retirement annuity receive annuities of 1.7 percent of the sum of their three highest annual salaries, compared to most federal workers who receive annuities of only 1 percent of their “high threes.”

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 19 of 24
-19they are likely to succeed on the merits of a disparate impact claim, even if one is available to them.8
C. Subject matter jurisdiction over a collateral attack Defendants characterize plaintiffs’ suit as nothing more than a collateral attack on the FAA’s decision to outsource plaintiffs’ services and to award the contract to Lockheed. Relying on Carey v. O’Donnell, 506 F.2d 107, 110 (D.C. Cir. 1974), they argue that because 49 U.S.C. § 46110 commits review of the FAA’s action exclusively to the jurisdiction of the courts of appeals, the district court has no subject matter jurisdiction over this case. (See Def.’s Mem. at 61-63.) To the extent this ADEA action may be fairly characterized as a collateral attack on a final agency decision clothed as an age discrimination action, this court lacks jurisdiction over it. Appellants in the cases at bar have all had their day in court as contemplated by the statute. Viewed objectively, the actions below, although couched in terms of violations of the RLA [Railway Labor Act] and the ADEA, are essentially collateral attacks on the integrated seniority list as incorporated in the . . . agreement . . ., approved by the CAB, and reviewed by this court . . . . We perceive no necessity for additional review, not contemplated by the Federal Aviation Act, in the District Court or any other forum.
8 Even if they were able to establish a prima facie case, which they have not done here, plaintiffs would likely be unable to show that the FAA’s action was not based on a reasonable factor other than age, for the same reasons mentioned in note 5, above.

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 20 of 24
-20Carey, 506 F.2d at 110. On the other hand, to the extent this action represents a genuine and legitimate age discrimination action, subject matter jurisdiction is not in doubt. See Cook v. Pan Am. World Airways, Inc., 771 F.2d 635 (2d Cir. 1985) (departing from Carey and holding that the district court was not deprived of its statutory jurisdiction over an ADEA challenge to a seniority system just because it happened to be adopted as part of a merger approved by the Civil Aeronautics Board ("CAB"), an agency action that was reviewable only by the courts of appeals); Clayton v. Republic Airlines, 716 F.2d 729 (9th Cir. 1983) (departing from Carey and holding that plaintiff could be heard on his duty of fair representation claim in district court even though review of the merger in which the representation occurred was approved by the CAB and review of the CAB’s action was committed exclusively to the courts of appeals). This initial review of the plaintiffs’ likelihood of success on the merits leads to a fairer characterization of this action as a collateral attack on an agency decision rather than a genuine age discrimination case. On this ground, as well, plaintiffs do not appear likely to succeed on the merits of the underlying action. II. IRREPARABLE HARM
Plaintiffs, alleging they will suffer irreparable harm if the FAA is not enjoined from outsourcing the FS on October 4, 2005, anticipate "severe economic harm" stemming from a loss of

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 21 of 24
-21jobs, federal employment, civil service protection, retirement contributions, opportunity to continue to contribute to an enhanced retirement annuity, a bargaining unit, and benefits arising from their collective bargaining agreement, including a negotiated grievance procedure, as well as harm from forced relocation in order to take a Lockheed position, and increased costs of life and medical insurance. (Pl.’s Mem. at 107-11.) They further assert that the remedies available under the ADEA are insufficient to compensate plaintiffs for the damages they anticipate as a result of the outsourcing because the ADEA does not permit plaintiffs to recover for future monetary damages (as distinct from "front pay"), or personal injuries such as emotional pain, suffering, inconvenience, anguish, and loss of enjoyment of life. (Pl.’s Mem. at 103-07, 112-13 (noting that plaintiffs’ "connection to their positions is not entirely measurable in monetary terms") (quotations omitted).)
Much of what plaintiffs identify as irreparable harm, namely, lost jobs, lost retirement contributions or increased costs of health and life insurance, is exactly the sort of harm that the law treats as compensable by monetary damages, and thus it is not irreparable. Plaintiffs’ witness even testified as much.
Q: Is there anyway that money can make that up somehow?

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 22 of 24
-22A: I mean, I’m standing to lose about a million dollars over the course of a lifetime if I don’t get to my [eligible date for the enhanced] retirement [annuity], so if someone wanted to give me a million dollars, perhaps. (Hr’g Tr. at 27.) And, while the loss of grievance procedures or employee rights negotiated as part of the collective bargaining agreement or the loss of federal civil service protection may well be harms that are not compensable by money damages, they are not incapable of being remedied through "other corrective relief," Virginia Jobbers, 259 F.2d at 925, by order of a court, if it is later determined that the FAA has violated the law. Finally, an injury is not rendered "irreparable" for the purposes of injunctive relief merely because the injuries claimed are not cognizable under the cause of action pursued by the plaintiff. Thus, the fact that the ADEA does not authorize compensation for psychological suffering associated with a job loss, personal emotional upheaval, or distress does not mean that there is no adequate remedy at law and that injunctive relief is an appropriate substitute. It means that such injuries are not, in fact, injuries for the purposes of the law. Plaintiffs cannot argue that they are irreparably harmed simply because the governing statute does not recognize such injuries. Granting an injunction will not alter the fact that under the ADEA such experiences, however real they may be, are not compensable,

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 23 of 24
-23either by money damages or through “other corrective relief.” Virginia Jobbers, 259 F.2d at 925. III. BALANCE OF HARMS TO THE PARTIES
Plaintiffs argue that unless this court enjoins the planned outsourcing, most plaintiffs will lose their federal employment and others will be faced with hard choices. Defendants point to the expense that will be incurred by the contractor and the agency if the planned change is interrupted by the court’s intervention since change has already been committed to or undertaken. On balance, the harm to the individual plaintiffs appears to represent the slightly greater harm. However, in light of the fact that the harm does not appear to be the result of any illegal agency action, the perceived greater harm to the plaintiffs should not weigh heavily in the sliding scale of the four factors. IV. PUBLIC INTEREST
The public interest weighs in favor of denying the requested injunction. The public has a strong interest in federal agencies realizing cost savings through competitive outsourcing mandated by Congress. In this case, the justifications and presumptions behind the decisions have been challenged at every turn, sometimes repetitively. In each instance, the agency actions have been affirmed. The public’s interest in cost-savings,

Case 1:05-cv-00654-PLF Document 34 Filed 09/30/05 Page 24 of 24
-24coupled with the public’s interest in finality, weigh against granting the injunction.
SUMMARY AND CONCLUSION The human toll that FS outsourcing will take on a valued segment of the federal workforce is tangible. The outsourcing stems from Congressional directives for the entire government to streamline, though, and plaintiffs have not shown that they are likely to succeed on the merits of their underlying age discrimination claims. Nor have they shown that any anticipated injury proximately caused by the alleged ADEA violation is not remediable by money damages, or that the public interest will be served by the injunction. Accordingly, it is hereby ORDERED that plaintiffs’ motion for a preliminary injunction be, and hereby is, DENIED. SIGNED this 30th day of September, 2005.
/s/ RICHARD W. ROBERTS United States District Judge

 
 Case 1:05-cv-00654-PLF Document 367 Filed 10/16/17 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ELAINE L. CHAO, Secretary of

)

Transportation, Department of

)

Transportation, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

MEMORANDUM OPINION The above-captioned case involves claims brought by former flight service specialists against the Federal Aviation Administration and the Department of Transportation alleging violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. The Court has more fully described the factual and procedural history of this case in an earlier opinion. See Breen v. Chao, No. 05-0654, 2017 WL 2312884 (D.D.C. May 26, 2017). This matter now comes before the Court upon the ten motions for substitution of estates filed by plaintiffs’ counsel on August 18, 2017, seeking to substitute the personal representatives of the estates of ten now-deceased plaintiffs.1 Defendants filed an omnibus opposition to the

1

The motions for substitution include the following: Plaintiffs’ Motion for

Substitution of Estate for Plaintiff Christopher Beale (“Beale Motion to Substitute”) [Dkt. 352];

Plaintiffs’ Motion for Substitution of Estate for Plaintiff Craig Marcus (“Marcus Motion to

Substitute”) [Dkt. 353]; Plaintiffs’ Motion for Substitution of Estate for Plaintiff Donald

Northover (“Northover Motion to Substitute”) [Dkt. 354]; Plaintiffs’ Motion for Substitution of

Estate for Plaintiff Fred Lippi (“Lippi Motion to Substitute”) [Dkt. 355]; Plaintiffs’ Motion for

Substitution of Estate for Plaintiff John Schweigert (“Schweigert Motion to Substitute”) [Dkt.

356]; Plaintiffs’ Motion for Substitution of Estate for Plaintiff Larry Johnston (“Johnston Motion

Case 1:05-cv-00654-PLF Document 367 Filed 10/16/17 Page 2 of 9

motions for substitution [Dkt. 362] on September 1, 2017, to which plaintiffs filed their reply [Dkt. 363] on September 8, 2017.
Each motion for substitution includes supporting documentation to identify the following as the personal representatives of the ten deceased plaintiffs’ estates: Barbara Lynn Hoyt, as executor of Christopher Beale’s estate, see Beale Mot. to Subst. Exs. 1, 3, 4;2 Patricia E. Marcus, as sole distributee of Craig Marcus’s estate, see Marcus Mot. to Subst. Exs. 1, 3;3 Nyoka S. Northover, as sole distributee of Donald Northover’s estate, see Northover Mot. to Subst. Exs. 1, 3; Monica Lippi, as sole distributee of Fred Lippi’s estate, see Lippi Mot. to Subst. Exs. 1, 3; Aaron Schweigert, as executor of John Schweigert’s estate, see Schweigert Mot. to Subst. Exs. 1, 3;4 Deborah L. Johnston, as sole distributee of Larry Johnston’s estate, see Johnston Mot. to Subst. Exs. 1, 3; Veronica R. Missouri, as executor of Maurita Potter’s estate, see Potter Mot. to Subst. Exs. 1, 3; Carolyn M. Bixler, as executor of Nancy Sutton’s estate, see Sutton Mot. to Subst. Exs. 1, 3; William Marshall and Melissa Ross, as executors of Robert Marshall’s estate,

to Substitute”) [Dkt. 357]; Plaintiffs’ Motion for Substitution of Estate for Plaintiff Maurita Potter (“Potter Motion to Substitute”) [Dkt. 358]; Plaintiffs’ Motion for Substitution of Estate for Plaintiff Nancy Sutton (“Sutton Motion to Substitute”) [Dkt. 359]; Plaintiffs’ Motion for Substitution of Estate for Plaintiff Robert Marshall (“Marshall Motion to Substitute”) [Dkt. 360]; and Plaintiffs’ Motion for Substitution of Estate for Plaintiff Tommy Forte (“Forte Motion to Substitute”) [Dkt. 361].

2

Exhibit 1 to the Beale Motion to Substitute is a Letter of Instruction to Substitute

Estate signed by Barbara Lynn Hoyt, as personal representative for Christopher Beale. Exhibit

3, however, reflects that Barbara Beale was named executor by court order. Exhibit 4 is a

subsequent marriage license for Barbara Lynn Beale and John Alexander Hoyt. Although

neither Exhibit 4 nor any other exhibits conclusively show that Barbara Beale changed her name

to Barbara Hoyt, she represents in Exhibit 1 that she “changed [her] last name upon remarriage.”

3

As a note, it appears Ms. Marcus neglected to include her address or other contact

information in Exhibit 1 to the Marcus Motion to Substitute.

4

As a note, it appears Mr. Schweigert neglected to include his address or other

contact information in Exhibit 1 to the Schweigert Motion to Substitute.

2

Case 1:05-cv-00654-PLF Document 367 Filed 10/16/17 Page 3 of 9
see Marshall Mot. to Subst. Exs. 1, 3, 4;5 and Mary J. Forte as sole distributee of Tommy Forte’s estate, see Forte Mot. to Subst. Exs. 1, 3. The motions for substitution do not make clear, however, whether plaintiffs’ counsel also represent each of these personal representatives. Rather, each of the ten motions simply describes the movants as “Plaintiffs, by and through undersigned counsel” and represents that each of the decedents’ “Personal Representative[s] has instructed Plaintiffs’ counsel to substitute the Estate for [the decedent] as a Plaintiff in this case.”
Defendants’ opposition argues that the motions for substitution should be denied because they do not comply with Rule 25(a) of the Federal Rules of Civil Procedure. Defendants first argue that, for all but one of the decedents, Rule 25(a) does not apply because those decedents’ claims were extinguished by the Court’s earlier orders of dismissal. See Defs.’ Opp’n at 1–6.6 Second, defendants argue that plaintiffs have failed to request substitution of a proper party, as “estates” alone cannot be deemed proper parties. They also argue that even if the motions for substitution were construed as seeking to substitute the signatories to the attached letters, plaintiffs have failed to demonstrate why each signatory would be a proper party. See id. at 6–7. Defendants next argue that the motions for substitution do not comply with the service

5

Although William Marshall and Melissa Ross assert in Exhibit 1 to the Marshall

Motion to Substitute that they are the executors of the estate, Exhibit 3 reflects that William

Marshall and Melissa Rawlings were appointed as co-special administrators of the estate. In

addition, Exhibit 4 lists William Marshall and Melissa Rawlings as the co-special administrators

appointed by the court, although the document was affirmed and signed by William Marshall and

Melissa Ross. The filings do not explain the reason for these discrepancies.

6

Only two of the decedents — Christopher Beale and Fred Lippi — had not

already been dismissed from the case at the time of their deaths. Mr. Beale died on November 2,

2007. See Beale Mot. to Subst., Ex. 2. On November 8, 2007, the Court issued an Order

directing Mr. Beale to show cause for his failure to respond to written discovery requests and his

counsel’s attempts to contact him. See Order to Show Cause [Dkt. 107]. Receiving no response

to this Order, the Court dismissed Mr. Beale from the case on May 30, 2008. See Order

Dismissing Pls. [Dkt. 151]. Mr. Lippi was never dismissed from the case.

3

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requirements of Rule 25(a). See id. at 7–8. Finally, defendants point out that the motions for substitution do not make clear the relationship between plaintiffs’ counsel, who filed the motions, and the personal representatives sought to be substituted. See id. at 8–9.
In response, plaintiffs argue that, because a final order of dismissal has not been entered in this case, the dismissed decedents’ claims have not been extinguished. See Pls.’ Reply at 1–2. Plaintiffs also assert that their ten motions to substitute name the proper parties to be substituted and were served in compliance with Rule 25(a). See id. at 2–5. Lastly, plaintiffs’ counsel argue that their relationship to the personal representatives sought to be substituted is unambiguous: “Plaintiffs’ Counsel readily represent to the Court that they have been retained by the estate representatives to represent them in this case, including in seeking to substitute these representatives for their deceased relatives.” See id. at 5–6.
I. LEGAL STANDARD Rule 25(a) provides that “[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party.” FED. R. CIV. P. 25(a)(1). In determining the “proper party” for substitution, courts generally look to the “legal representative” of the deceased. See Sinito v. U.S. Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999); see also May v. Shuttle, Inc., No. 94-1019, 1996 WL 774536, *1 n.1 (D.D.C. Sept. 5, 1996) (noting that the administrator of a deceased plaintiff’s estate had been substituted as plaintiff). While an appointed executor or administrator of the decedent’s estate is often the proper party, this is not always so. See Sinito v. U.S. Dep’t of Justice, 176 F.3d at 516. For example, where an estate has been distributed, “the distributee of a decedent’s estate may be a ‘successor’ of an estate . . . and thus can be a proper party.” Id.
4

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A motion to substitute a proper party for a deceased party “may be made by any party or by the decedent’s successor or representative.” FED. R. CIV. P. 25(a)(1). Strictly following the text of Rule 25(a), courts have explained that “[a] motion for substitution may be filed only by a party, by the executor or administrator of the decedent’s estate, or, if the estate has already been distributed to the heirs, by them,” but a “decedent’s lawyer may not file such a motion in his own name because he no longer has a client.” See Atkins v. City of Chicago, 547 F.3d 869, 872 (7th Cir. 2008) (citing FED. R. CIV. P. 25(a)(1)). In addition, such a motion must be made within ninety days “after service of a statement noting the death, [or] the action by or against the decedent must be dismissed.” FED. R. CIV. P. 25(a)(1).
Rule 25(a) requires that a motion to substitute a proper party “be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4.” FED. R. CIV. P. 25(a)(3); see also Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990). In identifying the nonparties for whom service is required, Rule 25(a) “obviously [does not require service upon] every person in the United States who happens not to be a party to the lawsuit in question.” See Atkins v. City of Chicago, 547 F.3d at 873. Instead, the rule requires service upon “nonparties with a significant financial interest in the case, namely the decedent’s successors (if his estate has been distributed) or personal representative ([if] it has not been).” Id. As a result, service on decedent’s counsel alone is inadequate where service has not been effected upon the decedent’s successors or personal representative. See, e.g., Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985). This is because an attorney’s agency to act on behalf of her client ceases upon the party’s death; the attorney’s responsibilities do not necessarily transfer to the decedent’s successors or personal representative. Id. To the contrary, a personal representative to be substituted may retain different counsel. Id. Accordingly, nonparty successors or
5

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representatives of a decedent ordinarily must be personally served to be provided with proper notice of a motion to substitute. Id.
II. ANALYSIS The ten motions to substitute all suffer from the same deficiency — they fail to make clear the relationship between plaintiffs’ counsel and those sought to be substituted for the decedents. If the personal representatives have not retained plaintiffs’ counsel, the motions do not comply with Rule 25(a): the motions would have been made by the deceased plaintiffs’ attorneys, rather than “by any party or by the decedent’s successor or representative,” and the motions would not have been properly “served . . . on nonparties as provided in Rule 4.” See FED. R. CIV. P. 25(a). Although plaintiffs’ reply represents that the personal representatives have retained plaintiffs’ counsel, the ten motions to substitute are ambiguous as to this point on their faces — the motions describe the movants simply as “plaintiffs,” and the letters attached as Exhibits 1 to each motion merely “instruct” plaintiffs’ counsel to substitute the decedent’s personal representative for the deceased plaintiff in the pending lawsuit. In contrast, if plaintiffs’ counsel do represent the personal representatives seeking to be substituted, then defendants’ arguments in opposition to the ten motions to substitute fail. The motions to substitute can then be construed to have been filed by counsel on behalf of “the decedent’s successor or representative,” in compliance with Rule 25(a)(1), and the movants need not have served their own motions upon themselves. In addition, with the exception of the discrepancies noted above, each motion to substitute includes attachments indicating that the moving representative is the proper party to be substituted, either as the appointed executor or
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the sole distributee of the decedent’s estate.7 Thus, defendants’ argument that “estates” alone cannot be proper parties under Rule 25(a) is not only inaccurate, but irrelevant.8
Furthermore, the fact that nine of the ten decedents have been dismissed from the case does not preclude the Court from substituting those dismissed, now-deceased plaintiffs with the representatives of their estates. Rule 25(a)(1) allows for substitution only where a decedent’s “claim is not extinguished.” Defendants argue that the claims of the nine dismissed plaintiffs have been extinguished by virtue of their dismissals. As plaintiffs note, however, no final order of dismissal has been entered in this case. And, in fact, three of the dismissed parties have moved for reconsideration of their dismissal. See Mot. for Reconsideration of Dismissal of Pls. [Dkt. 317]. Defendants have not identified any legal authority suggesting that a motion for substitution otherwise compliant with Rule 25(a) must be denied prior to issuance of a final order of dismissal. To the contrary, Rule 54(b) makes clear that when an action involves multiple parties:
[T]he court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

7

See supra at 2–3 and notes 2–5.

8

Plaintiffs correctly note that estates have appeared as parties to civil actions in this

court. See, e.g., Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237 (D.D.C. 2015);

Estate of Matthews v. Novartis Pharm., 77 F. Supp. 3d 1 (D.D.C. 2014); Estate of Rudder v.

Vilsack, 10 F. Supp. 3d 190 (D.D.C. 2014). Regardless, the instant motions to substitute clearly

contemplate substitution of the identified personal representatives of each decedent’s estate,

rather than substitution of the estate itself.

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While Rule 54(b) has not been expressly linked to the Rule 25(a) standard, this is because the federal courts that have decided whether a claim has been “extinguished” for Rule 25(a) purposes have focused instead on whether a parties’ death itself extinguished the claim.9 It is worth noting, however, that the Third Circuit has held that a grant of summary judgment to only one defendant in a multi-party case was not a final order and thus, under Delaware law, plaintiff’s claim against that defendant was not extinguished at the time of that defendant’s death for purposes of substitution pursuant to Rule 25(a). See Giles v. Campbell, 698 F.3d 153, 157 (3d Cir. 2012).
III. CONCLUSION For the foregoing reasons, the Court will permit plaintiffs’ counsel to supplement the ten motions to substitute in order to clarify whether counsel do in fact represent the personal representatives of the decedents’ estates. In addition, the Court directs plaintiffs’ counsel to also explain or correct the discrepancies identified supra in notes 2–5 in their supplemental filing.

9

Relatedly, defendants tangentially raise the question of whether a plaintiff’s death

itself extinguishes a claim brought under the ADEA. See Def.’s Opp’n at 5 n.9. Federal courts

addressing this issue, however, have determined that it is “clear that an ADEA claim survives

death of the original plaintiff and is subject to revival by his legal representative as a matter of

federal law.” Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 n.3 (4th Cir. 1985) (citing Asklar

v. Honeywell, Inc., 95 F.R.D. 419, 424 (D. Conn. 1982)); see also Duffy v. Sodexho, Inc., No.

05-5428, 2008 WL 4919399, *20–21 (E.D. Penn. Nov. 17, 2008) (granting motion to substitute

executrix of deceased plaintiff’s estate and addressing plaintiffs’ ADEA claims on the merits);

O’Keefe v. Gen. Accident Ins. Co., 918 F. Supp. 115, 116 n.1 (S.D.N.Y. 1996) (noting that

although plaintiff had died, the court had granted a motion to substitute the executor of her

estate, and proceeding to address the merits of plaintiff’s ADEA claims). But see EEOC v.

Timeless Investments, Inc., 734 F. Supp. 2d 1035, 1057 (E.D. Cal. 2010) (holding that while

remedial claims brought under the ADEA survived, plaintiff’s death terminated his claim for

liquidated damages because such remedies “are considered ‘penal’ or ‘punitive’ in nature”);

Flaum v. Gloucester Lanes, Inc., No. 13-cv-131, 2015 WL 364603, *2 (E.D. Va. Jan. 27, 2015)

(making a similar distinction between remedial and punitive claims in determining whether

plaintiff’s Americans with Disabilities Act claim survived his death).

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Upon review of plaintiffs’ supplemental filings, the Court will determine whether the pending motions for substitution comply with Rule 25(a).
An Order consistent with this Opinion shall issue this same day. SO ORDERED.

DATE: October 16, 2017

________/s/________________ PAUL L. FRIEDMAN United States District Judge

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 Case 1:05-cv-00654-PLF Document 378 Filed 03/27/18 Page 1 of 30

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ELAINE L. CHAO, Secretary of

)

Transportation, Department of

)

Transportation, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

OPINION This matter comes before the Court on the motion [Dkt. No. 317] of dismissed plaintiffs for reconsideration of the Court’s orders of dismissal. For the following reasons, the Court will grant the dismissed plaintiffs’ motion and reinstate their claims.1

1

In connection with the pending motion, the Court has reviewed the following

filings, including the exhibits attached thereto: Class Action Complaint [Dkt. No. 1] (“Compl.”);

First Amended Class Action Complaint [Dkt. No. 3] (“Am. Compl.”); Plaintiffs’ Motion for

Class Certification (Corrected) [Dkt. No. 4] (“Mot. for Certif.”); Gebhardt & Associates’ Motion

to Withdraw as Counsel for 714 Plaintiffs [Dkt. No. 71] (“Mot. to Withdraw”), Defendants’

Opposition [Dkt. No. 77] (“Opp’n to Mot. to Withdraw”), and Gebhardt & Associates’ Reply

[Dkt. No. 83] (“Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate”); Defendants’ Motion

to Bifurcate Discovery and Trial on Liability and Damages [Dkt. No. 78] (“Mot. to Bifurcate”),

Plaintiffs’ Opposition [Dkt. No. 83] (“Reply to Mot. to Withdraw & Opp’n to Mot. to

Bifurcate”), and Defendants’ Reply [Dkt. No. 85] (“Reply to Mot. to Bifurcate”); Defendants’

Motion to Compel Plaintiffs’ Responses to Defendants’ First Set of Interrogatories and Requests

for Production of Documents to Plaintiffs [Dkt. No. 90] (“Mot. to Compel”) and Defendants’

Notice of Supplement [Dkt. No. 91] (“Suppl. to Mot. to Compel”); Plaintiffs’ Consent Motion to

Defer Consideration of Defendants’ Motion to Compel [Dkt. No. 99] (“Mot. to Defer”); Plaintiff

Donna Dodson’s Motion for Reconsideration of the Court’s May 30, 2008, Order [Dkt. No. 156]

(“Dodson Mot.”), Defendants’ Opposition [Dkt. No. 159] (“Opp’n to Dodson Mot.”), and

Dodson’s Reply [Dkt. No. 164] (“Reply to Dodson Mot.”); Plaintiff Steven K. Patterson’s

Motion for Reconsideration of the Court’s Order of May 30, 2008 [Dkt. No. 165] (“Patterson

Case 1:05-cv-00654-PLF Document 378 Filed 03/27/18 Page 2 of 30

In their motion for reconsideration, the dismissed plaintiffs ask the Court to review, on the basis of new evidence, its prior orders dismissing a total of 663 plaintiffs from this case.2 The Court’s orders, issued in 2008 and 2009, dismissed the 663 plaintiffs for their failures to respond to defendants’ discovery requests and to the Court’s subsequent show cause orders. As new evidence, the dismissed plaintiffs proffer correspondence sent by their prior counsel – Gebhardt & Associates, LLP – conditioning the firm’s continued representation on satisfaction of a new and substantial demand for payment by each individual plaintiff.3 In the letters, the

Mot.”), Defendants’ Opposition [Dkt. No. 166] (“Opp’n to Patterson Mot.”), Patterson’s Reply [Dkt. No. 175] (“Reply to Patterson Mot.”), and Patterson’s Supplement [Dkt. No. 182] (“Suppl. to Patterson Mot.”); Plaintiff Kenneth D. Thomas’ Motion for Reconsideration of the Court’s Order of May 30, 2008 [Dkt. No. 172] (“Thomas Mot.”), Defendants’ Opposition [Dkt. No. 177] (“Opp’n to Thomas Mot.”), and Thomas’ Reply [Dkt. No. 185] (“Reply to Thomas Mot.”); Plaintiff Frank Matkins’ Motion for Modification of the Court’s May 30, 2008, Order [Dkt. No. 203] (“Matkins Mot.”), Matkins’ Reply to Defendants’ Opposition [Dkt. No. 204] (“First Reply to Matkins Mot.”), Defendants’ Opposition [Dkt. No. 207] (“Opp’n to Matkins Mot.”), and Matkins’ Reply to Defendants’ Opposition of October 24, 2008 [Dkt. No. 212] (“Second Reply to Matkins Mot.”); Plaintiff Janice I. Teed-Wilson’s Motion for Modification of the Court’s May 30, 2008, Order [Dkt. No. 213] (“Teed-Wilson Mot.”) and Defendants’ Opposition [Dkt. No. 216] (“Opp’n to Teed-Wilson Mot.”); Plaintiff Henry Ontiveros’ Motion for Modification of the Court’s May 30, 2008, Order [Dkt. No. 234] (“Ontiveros Mot.”) and Defendants’ Opposition [Dkt. No. 241] (“Opp’n to Ontiveros Mot.”); Defendants’ Motion to Dismiss James S. Hill [Dkt. No. 257] (“Mot. to Dismiss Hill”); Transcript of Status Hearing (Feb. 7, 2007) [Dkt. No. 286] (“Feb. 7, 2007 Hr’g Tr.”); Transcript of Status Hearing (Sept. 14, 2007) [Dkt. No. 311] (“Sept. 14, 2007 Hr’g Tr.”); Plaintiffs’ Notice of Filing Regarding Individuals Who Retained Plaintiffs’ Counsel [Dkt. No. 313] (“Notice of Individuals Who Retained Pls.’ Counsel”); Dismissed Plaintiffs’ Motion for Reconsideration of Dismissal [Dkt. No. 317] (“Mot. for Recons.”), Defendants’ Opposition [Dkt. No. 330] (“Opp’n to Mot. for Recons.”), and Dismissed Plaintiffs’ Reply [Dkt. No. 335] (“Reply to Mot. for Recons.”); Plaintiffs’ Third Status Report [Dkt. No. 337] (“Third Status Report”); and Plaintiffs’ Request for Status Conference [Dkt. No. 348] (“Req. for Status Conf.”).

2

The Court notes that at the time the instant motion for reconsideration was filed,

only 226 of the 663 dismissed plaintiffs had retained counsel and thus moved for

reconsideration. See Notice of Individuals Who Retained Pls.’ Counsel at 1.

3

In total, the motion for reconsideration attaches four documents as new evidence:

Exhibit A is a letter dated February 16, 2007, from Gebhardt & Associates conditioning the

firm’s continued representation on payment of $10,000 by each individual client; Exhibit B is a

2

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dismissed plaintiffs argue, the firm used misleading language to suggest to its clients that they were unrepresented, despite the fact that Gebhardt & Associates remained counsel of record. See Mot. for Recons. at 4-6, 8-9, 10-11. The dismissed plaintiffs also argue that the letters emphasized, in various implicit ways, that plaintiffs would have little chance of prevailing on their claims and recovering damages without counsel. See id. at 5 n.7, 8.
The dismissed plaintiffs assert that these letters, presented for the first time in their entirety, amount to new evidence explaining why they failed to respond to defendants’ requests for discovery and the Court’s show cause orders. See Mot. for Recons. at 10-11, 15-17. The dismissed plaintiffs argue that these communications – showing that Gebhardt & Associates denied its clients assistance in complying with pending discovery requests, discouraged them from participating in the case unless they could pay the firm $10,000 each, and inaccurately suggested that the firm did not already represent them – demonstrate that their failures to respond were neither willful nor egregious. See id. at 2, 15-17. Rather, they argue that their failures to respond resulted from the misleading and confusing nature of the letters. See id. In addition, the dismissed plaintiffs proffer the declarations of fourteen dismissed plaintiffs, attached to the motion for reconsideration as Exhibit E, to affirm that this confusing and misleading correspondence did in fact cause the declarants to misunderstand their rights, obligations, and options for proceeding in the case.
letter dated April 12, 2007, from Gebhardt & Associates to those clients who made payments pursuant to the February 16, 2007, letter; Exhibit C is a letter dated April 17, 2007, from Gebhardt & Associates to those clients who did not make payments pursuant to the February 16, 2007, letter; and Exhibit D is an undated “Frequently Asked Questions” handout. Although the dismissed plaintiffs explain that Exhibit D was also prepared by Gebhardt & Associates, it is not clear when or to whom it may have been sent. See Mot. for Recons. at 6 n.8. Accordingly, the Court has limited its analysis to the correspondence attached as Exhibits A through C.
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In their opposition, defendants challenge whether the proffered correspondence amounts to new evidence. Defendants acknowledge that the letters were not previously provided to the Court in full. They argue, however, that the communications between Gebhardt & Associates and the dismissed plaintiffs “were described in sum and substance” in the parties’ prior briefings and by the Court itself. See Opp’n to Mot. for Recons. at 14. Defendants maintain that the dismissed plaintiffs failed to use reasonable diligence in prosecuting their claims and have not adequately explained why they did not communicate with Gebhardt & Associates or respond to the Court’s show cause orders. See id. at 15-20. To the contrary, defendants note that “the Court was clear about the consequences of plaintiffs’ continued nonresponsiveness in its show cause orders” and “even considered – and in appropriate cases, granted – reconsideration motions a year later.” See id. at 24. And although defendants concede that the dismissed plaintiffs may have some dispute with their prior counsel, they assert that such issues are more appropriately resolved in a separate attorney malpractice action. See id. at 2122. This is especially so, defendants explain, because permitting the dismissed plaintiffs to rejoin the litigation would unfairly prejudice defendants. See id. at 22-24.
In their reply, the dismissed plaintiffs reemphasize why the proffered communications should be considered new evidence warranting reconsideration. See Reply to Mot. for Recons. at 1. They also characterize the prejudice alleged by defendants as both minimal and premature – the dismissed plaintiffs’ discovery responses regarding liability would have been duplicative, while damages discovery will need to be supplemented for all plaintiffs in any event, and the Court may address defendants’ other concerns without resorting to the extreme sanction of dismissal. See id. at 5-7, 11-12. This is especially so, the dismissed plaintiffs argue, because their conduct was neither willful nor egregious and has not unduly
4

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burdened the Court or delayed the litigation. See id. at 2, 8-11. The dismissed plaintiffs conclude by proposing more appropriate alternatives to dismissal. See id. at 11-12.
I. FACTUAL AND PROCEDURAL BACKGROUND The Court recently recounted the factual and procedural history of this case in its opinion granting in part and denying in part defendants’ motion for summary judgment. See Breen v. Chao, 253 F. Supp. 3d 244, 247-53 (D.D.C. 2017). The Court thus recites here only those facts relevant to the instant motion for reconsideration. In seeking to challenge defendants’ reduction-in-force, the National Association of Air Traffic Specialists retained Gebhardt & Associates in a letter dated January 29, 2005. See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 2. In the letter, the union stated that it “would like to engage [the] firm to represent [union] members in an age discrimination claim against the Federal Aviation Administration.” Id. at 1. The letter recited the terms of the retention agreement: “Our understanding of the agreement is your firm will charge us $250.00 per hour for services and if there is any monetary award 10 percent of the final award. We will send your firm a $10,000.00 retainer the week of January 31st to begin.” Id. On February 1, 2005, plaintiff Kathleen A. Breen sent her individual authorization letter to Gebhardt & Associates. See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 3. Ms. Breen, a former president of the National Association of Air Traffic Specialists, explained in her declaration that this letter was “substantially similar” to those sent by each of the other union members seeking to be plaintiffs in the case. See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 1 at 1-3. Ms. Breen’s authorization letter stated: “I am writing to retain you and your law firm, Gebhardt & Associates, LLP, to file an age discrimination claim on my behalf, as part of the age discrimination action organized by the National Association of Air
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Traffic Specialists.” See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 3 at 1. The letter provided relevant personal details and contact information, but did not mention payment or any other requirements for representation. Id.
Thereafter, Gebhardt & Associates filed a complaint in this Court on March 31, 2005, amended on June 24, 2005, on behalf of the 834 individuals who had retained the firm with the assistance of the union. See Compl.; Am. Compl. Gebhardt & Associates then filed a motion for class certification on June 29, 2005. See Mot. for Certif. The union paid Gebhardt & Associates in accordance with their agreement through February 3, 2006. See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 1. at 3. Following the reduction-in-force, however, the union no longer received dues from those affected – now former members of the union – and ceased payments to Gebhardt & Associates. See id. at 3-4.
On February 7, 2007, Judge Richard W. Roberts, to whom this case was then assigned, held a status conference at which he denied the motion to certify the class without prejudice and set a schedule for discovery. See Feb. 7, 2007 Hr’g Tr. at 8-10. Gebhardt & Associates then sent a letter to each of the individual plaintiffs dated February 16, 2007, the first of the three letters attached to plaintiffs’ motion for reconsideration. See Mot. for Recons. Ex. A. This letter advised plaintiffs that they had a decision to make about their continued involvement in the case and had three options for proceeding in the litigation: “(1) Continue as an active Plaintiff with our law firm’s representation. (2) Stay in the case without representation (‘pro se’). (3) Request dismissal from the case.” See id. at 2. In order to remain represented by Gebhardt & Associates, the letter made clear that individual plaintiffs would have to make significant financial payments:
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Your case is large and complex, and it will be time-intensive and hence necessarily expensive. . . . Your former union at the FAA initially financed this case, but the union is no longer in the picture. . . . [W]e have designed a payment structure assuming that we have approximately 100 paying clients who continue with our representation (we do not know the actual number at this time, and it may change depending on your interests). With 100 paying clients, your total individual cost will be $10,000 over the next two years. However, in order to assist you with the cost of litigation, we have decided to give you the option of making four payments in the first two years of your case. . . . Your payment of $2,500 by March 9, 2007, will constitute your agreement to also pay the next three semi-annual payments of $2,500 . . . . If you do not make your next promised payment, you will fall automatically into the pro se group and no longer be represented by our firm.
See id. at 2-3. If plaintiffs would or could not commit to paying this substantial sum, the letter
misleadingly explained: “The pro se individuals who stay in the case without our representation
will get whatever (if anything) the FAA decides to give them when the case ends. If these
individuals get relief, it is likely to be less than the remedies awarded to the represented
Plaintiffs.” See id. at 2. The letter did not make clear that Gebhardt & Associates already
represented each of the individual plaintiffs and, as a result, the firm had ongoing obligations
toward its clients. Rather, the letter simply stated that if a client did not commit to the payment
plan, Gebhardt & Associates would “inform the Court that you intend to proceed as an
unrepresented pro se plaintiff.” See id. at 4.
On March 16, 2007, defendants served their initial discovery requests on
plaintiffs’ counsel. See Mot. to Compel Ex. 1. The discovery requests included four
interrogatories and four requests for production of documents. The first interrogatory sought
current contact information, while the three other interrogatories pertained to damages. See id. at
4-6. Defendants requested production of documents related to these four interrogatories. See id.
at 6-7.
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On April 12, 2007, Gebhardt & Associates sent a letter to those clients who had paid or agreed to pay Gebhardt & Associates in accordance with the firm’s February 16, 2007, letter. See Mot. for Recons. Ex. B. This letter informed recipients that 172 flight service controllers had paid or agreed to pay Gebhardt & Associates, requested that clients encourage others to do likewise, and provided the interrogatories and requests for production to be completed and returned to Gebhardt & Associates for compilation. See id. at 1.
On April 17, 2007, Gebhardt & Associates sent a letter to those individuals who had not paid or agreed to pay Gebhardt & Associates in accordance with the February 16, 2007, letter. See Mot. for Recons. Ex. C. From the outset, the letter implied that Gebhardt & Associates did not in fact already represent the recipients. The letter was addressed “Dear Unrepresented Plaintiff,” and began:
We are writing to you and all the plaintiffs in the Flight Service Controllers’ age discrimination case against the FAA who have not yet signed up for legal representation. This is to offer you one last chance to obtain representation in this large, complex federal district court lawsuit before the Court’s May 8, 2007 deadline. See id. at 1 (emphasis added). The letter also used confusing language that, when read one way, suggested that those without counsel were likely to be dismissed from the case for failure to prosecute. See id. (“If you do not have legal representation, you will be obligated to represent yourself, and if you don’t, you run the substantial risk of being dismissed from the case under the legal doctrine of ‘failure to prosecute.’”). The letter emphasized that “[i]n [the firm’s] experience, pro se and inactive plaintiffs often fair [sic] poorly in multi-party and class cases,” and described two of the firm’s “recent cases” in which numerous pro se plaintiffs had either been “recommended [for] dismiss[al]” by a magistrate judge or “got nothing,” after each of the other represented plaintiffs “received a monetary settlement and a full refund of their legal fees.”
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See id. at 3-4. The letter enclosed defendants’ discovery requests and advised that those who did not pay Gebhardt & Associates “should answer the enclosed government discovery requests, and return your discovery answers . . . to the government’s lead attorney . . . .” See id. at 1.
On June 8, 2007, Gebhardt & Associates filed a motion to withdraw as counsel for those plaintiffs who did not fulfill the firm’s payment demands. See Mot. to Withdraw. The motion included a copy of the notice sent to those plaintiffs from whom counsel sought to withdraw, in accordance with Local Civil Rule 83.6. See Mot. to Withdraw Ex. 3. In the motion to withdraw, Gebhardt & Associates explained that these individuals had “indicated in writing or by their conduct that they no longer wish[ed] to be represented by GEBHARDT & ASSOCIATES, LLP.” See Mot. to Withdraw at 1. The firm clarified that twenty plaintiffs had affirmatively indicated in writing that they wished to proceed pro se, while nearly seven hundred other individuals had simply “not responded to counsel’s two written communications to them regarding representation in prosecuting their claims.” See Mot. to Withdraw Mem. at 1-2. Regarding the nature and contents of these two written communications, the motion simply stated: “Plaintiffs’ counsel has twice written detailed letters, with lengthy attachments . . . in order to obtain the information necessary to prosecute this case on their behalf, respond to Defendants’ discovery requests, and make payment arrangements.” See id. The motion also selectively quoted the letters, but these quotations did not paint a complete picture of the letters’ tone and contents. See id. at 2-3. Thus, Gebhardt & Associates represented to the Court that despite the firm’s “diligent[] attempt[s] to communicate with the 694 nonresponding pro se Plaintiffs, . . . these individuals ha[d] remained uncommunicative,” but did not disclose the confusing and misleading letters that likely brought about this unresponsiveness. See id. at 3.
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Defendants opposed the motion to withdraw, arguing that leaving hundreds of individual plaintiffs to represent themselves pro se would be “manifestly unworkable, . . . severely prejudice defendants, and . . . delay resolution of the case.” See Opp’n to Mot. to Withdraw at 1. Defendants also argued that because “Gebhardt’s motion does not disclose what its underlying fee arrangement with plaintiffs was, . . . [it] does not support any conclusion that the 714 plaintiffs have failed, let alone failed substantially, to meet their obligations under the undisclosed fee arrangement.” See id. at 2-3. In addition, on June 22, 2007, defendants filed a motion to bifurcate discovery and the trial on liability and damages. See Mot. to Bifurcate. In their briefings, defendants explained that it was “uncontroverted that proving damages and liability will require no duplicative testimony: plaintiffs admit that ‘the damages portion of this lawsuit for each plaintiff will relate solely to the harm suffered, not to whether each was in fact a victim of the discrimination proved to have occurred.’” See Reply to Mot. to Bifurcate at 2. The Court subsequently denied defendants’ motion to bifurcate without prejudice. See Sept. 14, 2007 Hr’g Tr. at 6.
On August 14, 2007, defendants filed a motion to compel 708 plaintiffs to respond to their first set of interrogatories and requests for production of documents. See Mot. to Compel. One week later, plaintiffs filed a consent motion to defer consideration of the motion to compel until the Court ruled on Gebhardt & Associates’ motion to withdraw as counsel for the non-paying plaintiffs. See Mot. to Defer. The consent motion represented that plaintiffs’ counsel, “[c]onsistent with their ethical obligations” had “transmitted copies of Defendants’ discovery requests to all Plaintiffs named in the Complaint who had not requested withdrawal from the case,” including those from whom counsel sought to withdraw representation. See id. at 2. Gebhardt & Associates explicitly acknowledged that the firm still “formally represent[ed]”
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those from whom it sought to withdraw and explained that deferred consideration of the motion to compel would allow counsel to “know on whose behalf they are expected to respond and . . . , if necessary, be able to formulate an effective response in light of the Court’s rulings.” See id. at 3-4. As to the reason counsel sought to withdraw, the motion simply explained that these plaintiffs “were not responding to counsel’s communications, particularly regarding discovery, and . . . were not willing to pay for continued representation.” See id. at 2.
On September 14, 2007, Judge Roberts held a hearing at which he granted Gebhardt & Associates’ motion to withdraw as to the twenty plaintiffs who affirmatively represented in writing that they wished to proceed pro se. See Sept. 14, 2007 Hr’g Tr. at 4. But Judge Roberts denied the motion as to all of the remaining plaintiffs from whom the firm sought to withdraw. See id. Judge Roberts explained that he would instead order the remaining 692 plaintiffs to show cause why they should not be dismissed from the case for their unresponsiveness. See id. at 4-5. In doing so, he also denied defendants’ motion to compel discovery responses without prejudice and denied plaintiffs’ consent motion to defer ruling on the motion to compel as moot. See id. at 6.
Judge Roberts then issued a show cause order [Dkt. No. 107] on November 8, 2007, to those plaintiffs identified both by defendants as unresponsive to discovery requests and by Gebhardt & Associates as unresponsive to counsel’s “multiple attempts to contact them to determine whether they wish to proceed with this case.” He issued a second show cause order [Dkt. No. 123] on January 8, 2008, for those parties for whom the first show cause order had been returned as undeliverable and new addresses had been found. On May 30, 2008, Judge Roberts issued an order [Dkt. No. 151] dismissing the plaintiffs who did not respond to these two show cause orders, except those for whom mail had been returned as undeliverable and updated
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addresses could not be identified. On October 23, 2008, Judge Roberts issued a third show cause order [Dkt. No. 206] for twenty additional plaintiffs who failed to respond to defendants’ written requests for discovery. On February 12, 2009, he issued an order [Dkt. No. 245] dismissing thirteen of those plaintiffs who did not respond to the third show cause order.
Judge Roberts considered six individual motions for reconsideration filed by those whom he had dismissed. On January 6, 2009, he issued a memorandum opinion and order [Dkt. No. 230] granting motions for reconsideration filed by dismissed plaintiffs Steven K. Patterson and Kenneth D. Thomas. Gebhardt & Associates had filed both motions for reconsideration on the movants’ behalves, as Messrs. Patterson and Thomas had apparently “re-retained” the firm after their dismissals. Both motions represented that the movants had been unaware of the show cause orders and discovery requests because they had undergone several moves since the start of litigation as a result of the reduction-in-force and had not timely received the mailings. See Patterson Mot. Ex. 1; Suppl. to Patterson Mot. Ex. 1; Thomas Mot. Ex. 1. Judge Roberts emphasized in his opinion that he would grant the motions for reconsideration because nothing in the record disproved the movants’ explanations for why they did not sooner learn about the show cause orders and discovery requests and both movants had apparently acted as soon as they did learn about them.
Unlike Messrs. Patterson and Thomas, four other dismissed plaintiffs filed motions for reconsideration of their dismissals pro se.4 Judge Roberts denied each of these motions for reconsideration, finding that his prior show cause orders had been “unambiguous.” See Mem. Op. & Order Den. Matkins, Ontiveros & Teed-Wilson Mots. [Dkt. No. 247] at 3 n.2

4

It appears that Gebhardt & Associates did assist these pro se movants with their

motions, although the extent of this assistance is unclear. See Dodson Mot. at 1 n.1; Teed-

Wilson Mot. at 1 n.1; Ontiveros Mot. at 1 n.1.

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(Feb. 17, 2009); Mem. Op. & Order Den. Dodson Mot. [Dkt. No. 180] at 4 n.2 (Aug. 15, 2008). Not having seen the letters sent by Gebhardt & Associates, he found that the dismissed plaintiffs had not provided “any justification for failing to stay in communication with plaintiffs’ counsel to monitor the progress of the litigation and learn of their obligation to respond to the order to show cause in a timely fashion.” See Mem. Op. & Order Den. Matkins, Ontiveros & TeedWilson Mots. at 6-7; see also Mem. Op. & Order Den. Dodson Mot. at 6-7 (“[P]laintiffs are expected to use reasonable diligence in participating in litigation, and plaintiffs are expected to maintain communication with their counsel. Unfortunately for her, Dodson’s conduct has fallen short.” (citations omitted)).
II. LEGAL STANDARD The Federal Rules of Civil Procedure do not specifically address motions for reconsideration. See Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 241-42 (D.D.C. 2015). “While the most analogous rule is Rule 60, which provides relief from a final judgment or order, motions to reconsider interlocutory orders are not governed by Rule 60(b), but rather, such determinations ‘are within the discretion of the trial court.’” Id. at 242 (quoting Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)); see also FED. R. CIV. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”); Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997) (“Interlocutory orders are not subject to the law of the case doctrine and may always be reconsidered prior to final judgment. This is true even when a case is reassigned to a new judge.” (citations omitted)).
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This judicial discretion is broad. While the judicial interest in finality disfavors reconsideration, a district court has inherent authority to reconsider its interlocutory orders “as justice requires.” See Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26, 30-31 (D.D.C. 2013), aff’d sub nom. Wannall v. Honeywell, Inc., 775 F.3d 425 (D.C. Cir. 2014) (citations omitted). Although the “as justice requires” standard may be imprecise, it is at least clear that a court has “more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate under Rules 59(e) and 60(b).” See id. at 30, 32 (internal quotations and citation omitted).
To determine whether justice requires reconsideration of an interlocutory decision, courts look to whether the moving party has demonstrated “(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law in the first order.” Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d at 242 (citation omitted). Even where none of these three factors is present, “the Court may nevertheless elect to grant a motion for reconsideration if there are other good reasons for doing so.” Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005). For example, justice may require revision where “the Court has patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, [or] has made an error not of reasoning but of apprehension . . . .” See Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal quotations and citation omitted); see also Stewart v. FCC, 189 F. Supp. 3d 170, 173 (D.D.C. 2016).
The efficient administration of justice requires, however, that there be good reason for a court to reconsider an issue already litigated by the parties: “[W]here litigants have once battled for the court’s decision, they should neither be required, nor without good reason
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permitted, to battle for it again.” Isse v. American Univ., 544 F. Supp. 2d 25, 30 (D.D.C. 2008) (quoting Singh v. George Washington Univ., 383 F. Supp. 2d at 101). Ultimately, the moving party has the burden to demonstrate “that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied.” FBME Bank Ltd. v. Mnuchin, 249 F. Supp. 3d 215, 222 (D.D.C. 2017) (quoting U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012)); see also Isse v. American Univ., 544 F. Supp. 2d at 29.
III. ANALYSIS A. The Proffered Correspondence Amounts to New Evidence Warranting Reconsideration
Although the correspondence was summarily described and selectively quoted in counsel’s earlier representations to the Court, the letters from Gebhardt & Associates, now provided to the Court in full for the first time, amount to new evidence justifying reconsideration of the plaintiffs’ dismissals. The letters reflect several issues of which Judge Roberts apparently was unaware: Despite the fact that the firm was counsel of record, Gebhardt & Associates conditioned its continued representation on each plaintiff paying $10,000 over the course of two years and refused to assist its clients with their discovery obligations until and unless they committed to paying that amount; Gebhardt & Associates made these payment demands without any warning to its clients and without any attempt to mitigate the prejudice to them in the midst of litigation; Gebhardt & Associates used misleading language to suggest to its non-paying clients that they were currently unrepresented, that the firm had no ongoing obligation to them, and that legal assistance would be all but necessary for their success in the litigation; for those of its clients who did not forward payment, Gebhardt & Associates continued to withhold any assistance in the case, including with respect to discovery, while its motion to withdraw was
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pending and even after Judge Roberts denied the motion to withdraw; and Gebhardt & Associates did all of this while leading Judge Roberts to believe that counsel simply had been unable to elicit a response from any of these individuals, see Mot. to Withdraw Mem. at 1-3; Mot. to Defer at 2; Sept. 14, 2007 Hr’g Tr. at 4.5 Now having seen the complete contents of these letters, the Court more fully understands the context giving rise to the dismissed plaintiffs’ misunderstandings – for example, that they were not already represented by counsel, that the class action was no longer proceeding, or that they would have no realistic chance of success if they could not pay $10,000 (and possibly more) to Gebhardt & Associates. See Mot. for Recons. Ex. E at 1-17. With a more complete view of the attendant circumstances, the conduct of the dismissed plaintiffs now is more understandable. In light of this new evidence, justice requires reconsideration.
Defendants’ arguments to the contrary are unavailing. They primarily assert that the proffered letters and affidavits do not amount to new evidence. They characterize the fourteen declarations as “self-serving” and argue that the relevant correspondence from Gebhardt & Associates was “already the subject of extensive briefing . . . and . . . described in detail in several prior orders of this Court . . . .” See Opp’n to Mot. for Recons. at 3 n.4.6 Because the

5

To be clear, Gebhardt & Associates did allude in its briefings to the fact that its

correspondence had pertained to payment arrangements. See Mot. to Withdraw Mem. at 1-2

(explaining that Gebhardt & Associates had written to its clients to “make payment

arrangements,” among other reasons). And the firm did state that it sought to withdraw, in part,

because certain plaintiffs “were not willing to pay for continued representation.” See Mot. to

Defer at 2. Thus, Judge Roberts was aware, generally, that payment was one of several matters

at issue. This fact does not negate any of the Court’s conclusions here.

6

Defendants specifically argue that two of the letters – the February 16, 2007, and

April 17, 2007 communications – “were already the subject of extensive briefing circa

2007-2009 and were described in detail in several prior orders of this Court.” See id. With

regard to the third letter, dated April 12, 2007, defendants acknowledge that it was not previously

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relevant contents of the letters “were described in sum and substance in prior briefing,” defendants argue that the proffered documents do not add anything new to the Court’s understanding of the matter. See id. at 13-14.7
Defendants further argue that the dismissed plaintiffs have failed to show any error in Judge Roberts’ decisions to dismiss the claims of those who did not respond to the show cause orders. See Opp’n to Mot. for Recons. at 3-4. These show cause orders were, as Judge Roberts already has described, “unambiguous.” See id. at 3-4, 6 n.8, 13, 15, 16. Defendants argue that the dismissed plaintiffs “do not attempt to distinguish themselves from the numerous other individual plaintiffs who did manage to respond to the same show cause orders” or “explain why they waited so long after their dismissals to seek reconsideration by this Court.” See id. at 3. And because their “excuses for not responding to the show cause orders are no better than the explanations provided in the past by dismissed plaintiffs seeking reconsideration of their dismissals,” defendants assert that Judge Roberts’ reasons for denying earlier motions for reconsideration apply equally to the instant motion for reconsideration. See id. at 15-16.
These arguments fail to respond to the dismissed plaintiffs’ main point, however. The letters – now disclosed to the Court in full – show for the first time the confusing and misleading nature of Gebhardt & Associates’ communications with its clients and belie the notion that the dismissed plaintiffs simply lacked interest in the case and disregarded defendants’

described to the Court, but assert that the letter does not “provide any new information relevant to the non-participating plaintiffs’ dismissals . . . .” See id.

7

In making these arguments, defendants directly contradict the assertions they

raised in opposing Gebhardt & Associates’ motion to withdraw. In their brief opposing the

motion to withdraw, defendants argued that the Court could not meaningfully assess whether the

firm’s withdrawal was justified because Gebhardt & Associates had almost entirely withheld the

contents of its communications with its clients. See Opp’n to Mot. to Withdraw at 2-3, 11-18.

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requests for discovery and the Court’s orders. A reasonable interpretation of the show cause orders issued by Judge Roberts requires assessment in light of the contemporaneous communications the dismissed plaintiffs received from Gebhardt & Associates, of which Judge Roberts was unaware. He could not have known that Gebhardt & Associates was demanding $10,000 in exchange for continued representation, without ever informing the non-paying plaintiffs that the firm had already assumed the responsibilities of representing them, including the obligation to assist with discovery. Judge Roberts could not have known that these payment demands came without any warning, but came with strong cautions from Gebhardt & Associates that the firm’s clients would have no reasonable prospect of success unless they paid $10,000 each to proceed with counsel. And he surely could not have known that Gebhardt & Associates refused to assist its non-paying clients with discovery and instead informed them that they were unrepresented. What Judge Roberts did know when he issued his show cause orders beginning on November 8, 2007, however, was that he had denied the motion of Gebhardt & Associates to withdraw on September 14, 2007, and the firm thus remained counsel of record – with ongoing responsibilities to each of its clients – with respect to all but the twenty plaintiffs who affirmatively represented in writing that they wished to proceed pro se.
The proffered letters provide new insights into why the dismissed plaintiffs did not respond to defendants’ discovery requests and the show cause orders, belying the notion that their unresponsiveness reflected a lack of interest in the litigation or a disregard for Judge Roberts’ orders. When Gebhardt & Associates suddenly demanded payment for representation after the motion for class certification was denied, it was not unreasonable for a lay person to conclude “that this meant that the class action lawsuit was lost and over.” See Mot. for Recons. Ex. E at 3-4 (“I later heard that the judge rejected the class action. I understood that this meant
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that the class action lawsuit was lost and over. I heard that Gebhardt & Associates was offering to represent individual Flight Service Control Specialists in a new lawsuit challenging the RIF.”). Likewise, the letters emphasized that if plaintiffs could not afford to pay Gebhardt & Associates, they were not entitled to any legal assistance from the firm and had no realistic chance of success in the litigation. It thus is not difficult to see why so many non-paying plaintiffs did not respond – they had been told by their “former” counsel that, without a $10,000 payment, they simply had no meaningful option to proceed in the litigation. See id. at 1-17.8
In addition, defendants argue that the fourteen individual declarations “do not demonstrate why all of the 226 movants should be allowed back in the case eight years after they were dismissed.” See Opp’n to Mot. for Recons. at 19. Defendants correctly assert that among hundreds of movants, some have cases more analogous to those of the declarants and some have cases less so, and it is likely that these movants would not all share a single uniform explanation for their unresponsiveness. The Court must keep in mind, however, that the applicable standard here is simply “as justice requires.” While the dismissed plaintiffs have submitted only fourteen declarations, each of the declarants confirms that the objectively confusing and misleading communications sent by Gebhardt & Associates did in fact confuse and mislead them. And considering that each of the dismissed plaintiffs would have received these objectively confusing and misleading letters, the slight variations in their individual cases do not alter the overarching

8

The four prior motions for reconsideration filed pro se also allude to the movants’

misunderstandings regarding their rights and responsibilities for proceeding in the litigation.

See, e.g., Dodson Mot. at 3; First Reply to Matkins Mot. at 1-2; Teed-Wilson Mot. at 1-3;

Ontiveros Mot. at 1. Without fully understanding the nature of Gebhardt & Associates’

communications to the firm’s clients, these pro se briefings do not make clear the reasons for

these misunderstandings. But the correspondence from Gebhardt & Associates similarly puts

these pro se briefings into a new light. As a result, the Court finds defendants’ arguments that

these briefings preclude the letters from being treated as new evidence to be unconvincing. See

Opp’n to Mot. for Recons. at 16-19.

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impact of former counsel’s conduct. The interests of justice would not be served by parsing the thin lines that distinguish certain dismissed plaintiffs from others, as defendants ask the Court to do.9
B. Prior Counsel’s Conduct Is Appropriate for the Court’s Consideration and Need Not Be Relegated to a Separate Malpractice Action
Defendants also argue that the instant matter would be more appropriately resolved in a separate attorney malpractice action, characterizing the dispute as one between the dismissed plaintiffs and their prior counsel. Their grievances with counsel, defendants argue, do not excuse the dismissed plaintiffs’ failures to prosecute, and a motion for reconsideration cannot substitute for a malpractice action. See Opp’n to Mot. for Recons. at 21-22. In support of this argument, defendants cite to United States Supreme Court precedent holding that “clients must be held accountable for the acts and omissions of their attorneys.” See Pioneer Inv. Servs. v.

9

For example, defendants cite James Hill as one dismissed plaintiff with a

particularly unique narrative. Defendants filed a motion to dismiss James Hill on May 6, 2009,

for his failure to respond to discovery requests. See Mot. to Dismiss Hill. The motion certified

that Mr. Hill’s counsel – Gebhardt & Associates – did not oppose the motion. See id. at 1.

Mr. Hill had been among the non-paying plaintiffs from whom Gebhardt & Associates sought to

withdraw representation. See Mot. to Dismiss Hill Mem. at 2. Because Mr. Hill responded to

the Court’s show cause order, however, he was not dismissed from the case (and Gebhardt &

Associates remained his counsel of record). See id. at 2-3. After defendants still did not receive

the requested discovery responses, they filed the motion to dismiss, see id. at 3, which the Court

granted by minute order on June 25, 2009. In addition, two of the movants – Frank Matkins and

Henry Ontiveros – already filed unsuccessful motions for reconsideration of their dismissals.

See supra pp. 12-13. And two other movants – Jody L. Edwards and Erik C. Greer – were not

listed in Gebhardt & Associates’ June 8, 2007, motion to withdraw as counsel, yet were also

subsequently dismissed for their failures to respond to the Court’s November 8, 2007, order to

show cause. See Opp’n to Mot. for Recons. at 10 n.13; see also Mot. to Withdraw Ex. 1. While

one may speculate as to the reasons for these discrepancies, they are inconsequential to

resolution of the instant motion. In the face of such overwhelming evidence of misconduct by

Gebhardt & Associates, it seems more than likely that each of these dismissed plaintiffs was

unfairly prejudiced with unwarranted dismissal as a result – the prejudice and confusion they

faced simply manifested in slightly different outcomes.

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Brunswick Assocs., 507 U.S. 380, 396-97 (1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)).
Defendants’ reliance on Pioneer Investment Services is unpersuasive for several reasons. First, the Supreme Court issued its ruling in that case in the context of determining whether conduct qualifies as “excusable neglect” for purposes of Rule 60(b) of the Federal Rules of Civil Procedure or Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure. See Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. at 387-97. Accordingly, the United States Court of Appeals for the District of Columbia Circuit has only ever applied this holding in the Rule 60(b) context, never in the more flexible Rule 54(b) context. Furthermore, the D.C. Circuit has cabined this Supreme Court precedent to instances in which the plaintiff “voluntarily chose his attorney as his representative.” See Pigford v. Veneman, 292 F.3d 918, 925-26 (D.C. Cir. 2002) (quoting Link v. Wabash R.R. Co., 370 U.S. at 633-34). In contrast, in class actions where plaintiffs do not “voluntarily choose [counsel] in the usual sense,” the D.C. Circuit has found “no basis for holding [a plaintiff] responsible for [counsel]’s failure” to meet a court’s deadlines. See id. at 926-27 (internal quotations omitted). And the D.C. Circuit has been particularly reluctant to impose dismissal as a sanction where a client is innocent of counsel’s misconduct. See Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1077 (D.C. Cir. 1986) (“When the client’s only fault is his poor choice of counsel, dismissal of the action has been deemed a disproportionate sanction.”); Butler v. Pearson, 636 F.2d 526, 531 (D.C. Cir. 1980) (“[T]he concept of proportionality demands that plaintiffs not be unfairly penalized for negligence of their attorney. In these circumstances, we are persuaded that the drastic remedy of dismissal was disproportionate to the level of negligence shown.”); see also Hildebrandt v. Vilsack, 287 F.R.D. 88, 96-97 & n.5 (D.D.C. 2012). More to the point, the Court is not aware of any case in which
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the D.C. Circuit has held a party “accountable for the acts and omissions of their attorneys” where counsel engaged in the kind of conduct involved here, including misleading representations to both counsel’s clients and the Court. See Jackson v. Washington Monthly Co., 569 F.2d 119, 122 & n.18, 123-24 (D.C. Cir. 1977); cf. Anderson v. Chevron Corp., 190 F.R.D. 5, 9-12 (D.D.C. 1999).
When an attorney agrees to undertake the representation of a client, “counsel is under an obligation to see the work through to completion.” See Sabre Int’l Sec. v. Torres Advanced Enter. Solutions, LLC, 219 F. Supp. 3d 155, 157 (D.D.C. 2016); Byrd v. District of Columbia, 271 F. Supp. 2d 174, 176 (D.D.C. 2003). Of course, attorneys may withdraw where a “client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” See Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537, 540 (7th Cir. 2002) (quoting MODEL RULES OF PROF’L CONDUCT r. 1.16(b) (AM. BAR ASS’N)). But whether an individual has “failed substantially” depends on the obligations agreed upon when the parties entered the attorney-client relationship. Compare Byrd v. District of Columbia, 271 F. Supp. 2d at 178, with Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d at 540.10 While an attorney is not expected to work for free forever, see ABA MODEL RULES OF PROF’L CONDUCT r. 1.16(b)(6); RULES OF PROF’L CONDUCT r. 1.16(b)(4) (D.C. BAR), a client’s non-payment does not justify failing to provide competent representation, see Aka v. U.S. Tax Court, 854 F.3d 30, 33-35 (D.C. Cir. 2017).
10 For this reason, rules of professional conduct require that “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible . . . be communicated to the client, preferably in writing, before or within a reasonable time after commencing . . . the representation . . . .” See ABA MODEL RULES OF PROF’L CONDUCT r. 1.5(b); see also D.C. RULES OF PROF’L CONDUCT r. 1.5(b).
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In addition, once an attorney has entered an appearance in a pending lawsuit, the attorney may not unilaterally decide to consider a client unrepresented simply because the client has not paid fees or because a motion to withdraw from the case is pending before the court. One cannot assume that the relief requested will be granted simply because a motion has been filed. And certainly, an attorney may not do so after the court has denied such a motion. Furthermore, even if a court grants a motion for withdrawal, a lawyer must continue to take steps to the extent reasonably practicable to protect a client’s interests upon termination of representation, “such as giving reasonable notice to the client, [and] allowing time for employment of other counsel . . . .” See ABA MODEL RULES OF PROF’L CONDUCT r. 1.16(d); D.C. RULES OF PROF’L CONDUCT r. 1.16(d); see also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 16-476 (“In effectuating a withdrawal, a lawyer should do so in a manner that minimizes any prejudice to the client.”). In fact, even when a lawyer has been unfairly discharged, counsel must nonetheless “take all reasonable steps to mitigate the consequences to the client” of withdrawal. See ABA MODEL RULES OF PROF’L CONDUCT r. 1.16 cmt. 9; see also D.C. RULES OF PROF’L CONDUCT r. 1.16 cmts. 7, 9. Such steps to mitigate prejudice to the client would certainly include responding to pending motions, discovery requests, and directives from the court in compliance with court-ordered deadlines.
Finally, and most fundamentally, a lawyer may “not make a false or misleading communication about the lawyer or the lawyer’s services,” including statements that are truthful but misleading or material misrepresentations or omissions. See ABA MODEL RULES OF PROF’L CONDUCT r. 7.1 & cmt. 2; see also D.C. RULES OF PROF’L CONDUCT r. 7.1. Rather, lawyers have a professional obligation to explain matters to their clients “to the extent reasonably necessary to
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permit [their clients] to make informed decisions regarding the representation.” See ABA MODEL RULES OF PROF’L CONDUCT r. 1.4(b); D.C. RULES OF PROF’L CONDUCT r. 1.4(b).
Here, Gebhardt & Associates did not provide reasonable or sufficient notice to its clients or even attempt to mitigate the prejudice attendant to the firm’s withdrawal. To the contrary, Gebhardt & Associates made its initial payment demand only nine days after the Court set the discovery schedule at the February 7, 2007, status conference and only one month before defendants served their first requests for discovery, see Mot. to Compel Ex. 1. In the midst of discovery, Gebhardt & Associates refused assistance to any client who did not commit to paying the firm $10,000 and sent them misleading communications that indicated that they were unrepresented and discouraged them from proceeding in the litigation without counsel. Gebhardt & Associates continued to treat the non-paying plaintiffs as if they were unrepresented while its motion to withdraw was pending and even after the Court denied the motion. And in explaining the matter, Gebhardt & Associates represented to the Court that these non-paying plaintiffs had “indicated in writing or by their conduct that they no longer wish[ed] to be represented” by the firm. See Mot. to Withdraw at 1.
Gebhardt & Associates acknowledged in the consent motion to defer consideration of the motion to compel that it understood its professional obligations, expressly stating that unless and until the Court granted its motion to withdraw, the firm still “formally represent[ed]” the non-paying plaintiffs. See Mot. to Defer. at 3. Still, it did not fulfill these obligations. Gebhardt & Associates also had alternatives avenues for fulfilling its obligations as it sought to withdraw after the union ceased making payments – for example, providing more appropriate and advance notice, attempting to find other counsel, and moving to withdraw at a time that would minimize prejudice. See, e.g., Brandon v. Blech, 560 F.3d 536, 538 (6th Cir.
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2009); Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d at 540-41. Instead, counsel pursued a course of conduct that did not conform to their ethical and professional obligations. Had Judge Roberts understood then what this Court does now, it is likely that he would have proceeded very differently. Cf. Sanford v. Maid-Rite Corp., 816 F.3d 546, 550 (8th Cir. 2016) (“The presumption favoring withdrawal . . . should be disregarded, however, if it would severely prejudice the client or third parties.” (citation omitted)); Brandon v. Blech, 560 F.3d at 538 (“[A] district court may forbid withdrawal if it would work severe prejudice on the client or third parties.” (citation omitted)). Instead of holding the dismissed plaintiffs accountable for Gebhardt & Associates’ misleading communications and the firm’s failure to fulfill its ethical and professional obligations to them, justice requires that this Court reconsider their dismissals.
C. The Dismissed Plaintiffs’ Conduct Did Not Warrant Their Dismissals Where a plaintiff fails to comply with a discovery order or otherwise fails to
prosecute their claims, a court may impose a range of sanctions, including dismissal. See FED. RS. CIV. P. 37(b)(2)(A), 41(b); Bradshaw v. Vilsack, 286 F.R.D. 133, 140 n.5 (D.D.C. 2012) (explaining that “[t]he same factors are relevant to determining whether dismissal is appropriate for failure to prosecute and failure to obey a discovery order” (citations omitted)). The “central requirement” of a Rule 37 sanction is that it “must be just.” Campbell v. Nat’l R.R. Passenger Corp., 309 F.R.D. 21, 25-26 (D.D.C. 2015) (citation omitted); see also Bradshaw v. Vilsack, 286 F.R.D. at 140; Arias v. Dyncorp Aerospace Operations, LLC, 677 F. Supp. 2d 330, 332 (D.D.C. 2010). The extreme sanction of dismissal is thus warranted only where (1) the other party has been “so prejudiced by the misconduct that it would be unfair to require [the party] to proceed further in the case”; (2) the party’s misconduct has put “an intolerable burden” on the court by
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requiring the court to modify its own docket and operations in order to accommodate the delay; or (3) the court finds it necessary “to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.” See Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (citations omitted); see also Young v. U.S. Senate Sergeant at Arms, 217 F.R.D. 61, 65-66 (D.D.C. 2003). In addition, before imposing the sanction of dismissal, “a district court must consider whether lesser sanctions would be more appropriate for the particular violation because the judicial system favors disposition of cases on the merits.” See Bradshaw v. Vilsack, 286 F.R.D. at 140 (quoting Moore v. Napolitano, 723 F. Supp. 2d 167, 179 (D.D.C. 2010)); see also Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (“[D]ismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success or would obviously prove futile.” (quoting Shea v. Donohoe Constr. Co., 795 F.2d at 1075)). These parameters apply not only to dismissal, but to any other “severe” or “litigation-ending” sanction that effectively denies a party the right to a trial on the merits. See Bradshaw v. Vilsack, 286 F.R.D. at 140 (citing Bonds v. District of Columbia, 93 F.3d at 808-09, and Klayman v. Judicial Watch, Inc., 802 F. Supp. 2d 137, 151 (D.D.C. 2011)).
As a result, a sanction that denies a party the right to a trial on the merits must be supported by a finding either that the more severe sanction is necessary to avoid prejudice to the opposing party or to the court’s calendar or to prevent a benefit to the sanctioned party or, if the sanction is based only on deterring future misconduct, that the sanctioned party engaged in “flagrant or egregious misconduct.” See Bonds v. District of Columbia, 93 F.3d at 809. “In determining whether a party’s misconduct prejudices the other party so severely as to make it unfair to require the other party to proceed with the case, courts look to whether the aggrieved party has cited specific facts demonstrating actual prejudice, such as the loss of key witnesses.”
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Campbell v. Nat’l R.R. Passenger Corp., 309 F.R.D. at 26 (quoting Bradshaw v. Vilsack, 286 F.R.D. at 140-41). And although a court may presume that some prejudice results from any “unreasonable delay,” dismissal is warranted only where there are “specific, factually supported allegations” of severe actual prejudice. See Bradshaw v. Vilsack, 286 F.R.D. at 141 (citations omitted).
Reconsidering the issue in light of the new evidence presented, the Court concludes that the dismissed plaintiffs’ conduct did not warrant dismissal. As discussed in supra Part III(A), the correspondence from Gebhardt & Associates was confusing and misleading, and the dismissed plaintiffs have proffered fourteen declarations affirming that the correspondence did in fact confuse and mislead the declarants. See Mot. for Recons. Ex. E. Thus, it does not appear that the dismissed plaintiffs’ errors were willful or egregious, but likely based on their understandable confusion regarding their rights, obligations, and options for proceeding in the case. As a result, dismissal would not be warranted as a deterrent. In addition, the dismissed plaintiffs have not significantly delayed or prejudiced the Court. The Court’s adjudication of summary judgment did not depend on the production of damages discovery, and the paying plaintiffs have continued to drive the case forward.
Defendants argue that they would be severely prejudiced if the Court permitted the dismissed plaintiffs to revive their claims. They assert that the parties have already spent two years in discovery and have spent time and money and made strategic litigation decisions based on the discovery obtained. See Opp’n to Mot. for Recons. at 22. In particular, defendants argue that they relied extensively in their original motion for summary judgment on the depositions of those plaintiffs who remained in the case. See id. at 22-23. Although defendants agreed to plaintiffs’ aggregate responses to their merits-based discovery requests, they argue they were still
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“entitled to complete[] . . . answers from all the plaintiffs on their merits contentions,” as “defendants would have no way of discovering which of [the dismissed plaintiffs might contend] that they are aware of potential merits-relevant evidence without receiving discovery responses from them.” See id. Furthermore, defendants argue that they had a right to understand their ultimate exposure before undertaking extensive, although ultimately unsuccessful, settlement efforts. See id. at 23 n.19. Defendants also suspect that the dismissed plaintiffs have not understood their preservation obligations over the past decade and, as a result, they would “face prejudice due to lost or destroyed evidence.” See id. at 23.
While the Court is sympathetic to defendants’ concerns stemming from the longrunning nature of this case, defendants have not identified the kind of substantial prejudice that would justify the extreme sanction of dismissal. The discovery responses to which the dismissed plaintiffs failed to respond had little to no relevance to the question of liability. See supra at 7, 10. And defendants already had access to much of the information requested, because each dismissed plaintiff was a federal employee. See Mot. for Recons. at 14-15. In fact, defendants were required to maintain some of the requested information by law. See id. at 14 (citing 29 C.F.R. § 1602.14). Most importantly, the delayed discovery responses from the dismissed plaintiffs would cause little prejudice to defendants, due to the relative uniformity of plaintiffs’ liability discovery and the ongoing need to supplement damages discovery. As the dismissed plaintiffs have explained:
Dismissed Plaintiffs challenged the outsourcing of their jobs, the response to which would be identical to the responses already provided, as they each challenged the same personnel action. No new information would have been provided by responses to [inquiries regarding the merits of Plaintiffs’ claims] by Dismissed Plaintiffs. On the other hand, responses to questions propounded about the harm suffered by each Dismissed Plaintiff would likely differ from each other, requiring separate responses from each
28

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plaintiff, but the intervening passage of time would require supplementation of any responses provided. The damages discovery would not have concluded in any event and, therefore, Dismissed Plaintiffs’ failure to respond to the discovery of the remedies they seek did not delay or inhibit the conclusion of discovery on this subject. See Reply to Mot. for Recons. at 1-2. As further evidence of their uniform liability claims, the dismissed plaintiffs note that defendants only took approximately twenty depositions of individual plaintiffs, although over two hundred plaintiffs remained in the case, before filing their original summary judgment motion. See id. at 12. Because the delayed discovery requests were of such limited value, the unduly harsh sanction of dismissal would be neither warranted nor proportional to the prejudice defendants would face from the dismissed plaintiffs’ reinstatement. This is particularly so where any prejudice resulted from the dismissed plaintiffs’ understandable confusion, rather than any egregious or willful misconduct, and such prejudice may be resolved or mitigated by the Court.11 Of course, where plaintiffs file a case, they “take[] on certain responsibilities, including the duty to participate in discovery in good faith.” See Campbell v. Nat’l R.R. Passenger Corp., 309 F.R.D. at 24. But the dismissed plaintiffs’ errors here were neither willful nor egregious, and “the Court has the right, if not the duty, to temper justice with understanding.” See id. (internal quotations and citation omitted).
11 The dismissed plaintiffs have proffered several alternatives to dismissal more appropriate to the circumstances presented here. See Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1478 (D.C. Cir. 1995); see also FED. R. CIV. P. 37(b)(2). For example, the Court could prohibit them from submitting evidence and giving testimony at trial regarding liability issues not raised in discovery. See Reply to Mot. for Recons. at 11-12. The Court could also impose similar restrictions to account for any lost or destroyed evidence, should this issue arise. See id. at 12.
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IV. CONCLUSION For the reasons set forth in this opinion, the Court will grant the dismissed plaintiffs’ motion [Dkt. No. 317] for reconsideration and reinstate their claims. An order consistent with this opinion shall issue this same day. SO ORDERED.

DATE: March 27, 2018

_________/s/_____________ PAUL L. FRIEDMAN United States District Judge

30

 
 Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ELAINE L. CHAO, Secretary of

)

Transportation, Department of

)

Transportation, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

OPINION This matter comes before the Court on the motion [Dkt. No. 316] of fifteen prospective plaintiffs to reconsider this Court’s prior orders denying them leave to join or, in the alternative, intervene in the above-captioned case. Upon careful consideration of the parties’ written submissions, the relevant legal authorities, and the entire record in this case, the Court will grant the instant motion for reconsideration and permit the prospective plaintiffs to join this case.1

1

In connection with the pending motion for reconsideration, the Court has

reviewed the following filings, including the exhibits attached thereto: Class Action Complaint

[Dkt. No. 1] (“Compl.”); First Amended Class Action Complaint [Dkt. No. 3] (“Am. Compl.”);

Plaintiffs’ Motion for Class Certification (Corrected) [Dkt. No. 4] (“Mot. for Certif.”);

Prospective Plaintiffs’ Motion for Joinder, or in the Alternative, to Intervene, as Plaintiffs in the

Instant Action [Dkt. No. 63] (“Mot. for Joinder”), Defendants’ Opposition [Dkt. No. 70] (“Opp’n

to Mot. for Joinder”), and Prospective Plaintiffs’ Reply [Dkt. No. 72] (“Reply to Mot. for

Joinder”); Prospective Plaintiffs’ Motion for Reconsideration of the Court’s January 7, 2008

Memorandum Opinion and Order [Dkt. No. 128] (“First Mot. for Recons.”), Defendants’

Opposition [Dkt. No. 129] (“Opp’n to First Mot. for Recons.”), and Prospective Plaintiffs’ Reply

[Dkt. No. 131] (“Reply to First Mot. for Recons.”); Transcript of Status Hearing (Feb. 7, 2007)

[Dkt. No. 286] (“Feb. 7, 2007 Hr’g Tr.”); and Prospective Plaintiffs’ Motion to Reconsider

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 2 of 24
I. FACTUAL AND PROCEDURAL BACKGROUND The Court recently recounted the factual and procedural history of this case in its opinion granting in part and denying in part defendants’ motion for summary judgment. See Breen v. Chao, 253 F. Supp. 3d 244, 247-53 (D.D.C. 2017). The Court thus recites here only those facts relevant to the instant motion for reconsideration. Plaintiffs filed a class action complaint on March 31, 2005, amended on June 24, 2005, against the Federal Aviation Administration (“FAA”) alleging violations of the Age Discrimination in Employment Act (“ADEA”).2 The complaint as amended explained that “[t]he original nine Plaintiff Class Representatives [were] joined by 825 additional Plaintiffs,” each of whom was “not only . . . a member of the class, but also assert[ed] individual claims of age discrimination on his or her own behalf.” See Am. Compl. at 79. These prospective class members were each “over 40 years of age and adversely affected by the FAA’s decision to eliminate federal employment and related benefits . . . at the 58 Automated Flight Service Stations as announced by the FAA on February 1, 2005.” See id. at 78-79. The amended complaint clarified that the prospective class included “approximately 834” of the 1,770 total Flight Service Controllers who were over the age of 40 and had been adversely affected by the reduction-in-force, but that additional individuals might be included in the class in the future. See id. at 79 n.1, 84 & n.2.

Denial of Joinder or Intervention [Dkt. No. 316] (“Second Mot. for Recons.”), Defendants’ Opposition [Dkt. No. 331] (“Opp’n to Second Mot. for Recons.”), and Prospective Plaintiffs’ Reply [Dkt. No. 336] (“Reply to Second Mot. for Recons.”).

2

Plaintiffs filed a motion for class certification on June 29, 2005. See Mot. for

Certif. The Court denied the motion to certify the class without prejudice on February 7, 2007,

see Feb. 7, 2007 Hr’g Tr. at 10, and plaintiffs never renewed their motion for class certification.

2

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The amended complaint also explained that the nine prospective class representatives, as well as the 825 additional plaintiffs to the case, had exhausted their administrative remedies by providing notice to the Equal Employment Opportunity Commission (“EEOC”) of their intent to file the civil action pursuant to the ADEA’s bypass provision, 29 U.S.C. § 633a(d). See id. at 83-84. In a unique feature of the ADEA, federal employees may bring their claims directly to federal court after providing notice to the EEOC, pursuant to Section 633a(d), without first going through the full administrative complaint process set forth in Section 633a(b). To invoke this bypass provision, a party must provide not less than thirty days’ notice to the EEOC of their intent to file a civil action and must do so within 180 days after the alleged unlawful practice occurred. See 29 U.S.C. § 633a(d).
On May 8, 2007, twenty prospective plaintiffs filed a motion to join the case.3 Like the hundreds of plaintiffs already parties to the case, these prospective plaintiffs were formerly employed as flight service controllers and were over forty years of age when adversely affected by the FAA’s reduction-in-force announced on February 1, 2005. Like the plaintiffs, they alleged that this adverse action had violated their rights under the ADEA. In their motion for joinder, the prospective plaintiffs admitted that they had not personally filed any notice to the EEOC to invoke the ADEA’s bypass provision, as each of the other plaintiffs had done. See Mot. for Joinder Mem. at 4. The prospective plaintiffs argued, however, that they should be permitted to join under the doctrine of vicarious exhaustion. See id. at 4-10.

3

The instant motion for reconsideration explains that while twenty prospective

plaintiffs sought to join the case in 2007, five of those prospective plaintiffs have not retained

plaintiffs’ counsel to date. See Second Mot. for Recons. at 1. n.1. As a result, only fifteen

prospective plaintiffs now move for reconsideration.

3

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On January 7, 2008, Judge Richard W. Roberts, to whom this case was then assigned, issued a memorandum opinion and order denying the prospective plaintiffs’ motion for joinder. See Breen v. Peters, 529 F. Supp. 2d 24, 29 (D.D.C. 2008). In doing so, Judge Roberts held that the doctrine of vicarious exhaustion applies only where a party has undergone the “full-blown administrative complaint process required by law.” See id. at 28. Because Section 633a(d) serves as an alternative to the administrative complaint process set forth in Section 633a(b), he reasoned that the doctrine of vicarious exhaustion could not apply where the original civil action claims were administratively exhausted solely under the Section 633a(d) bypass provision. See id. at 26-28. On February 7, 2008, the prospective plaintiffs moved for reconsideration of the ruling denying their motion for joinder. That motion for reconsideration argued that Judge Roberts had implicitly relied on matters not briefed by the parties and, as a result, erred in denying the motion for joinder. See First Mot. for Recons. at 2-3.4 Judge Roberts issued a memorandum opinion and order [Dkt. No. 181] denying this first motion for reconsideration on August 15, 2008.
In the instant motion for reconsideration, the prospective plaintiffs assert that new evidence now justifies reconsideration of the Court’s rulings denying their motion for joinder and their first motion for reconsideration. Specifically, the prospective plaintiffs explain that one of the original plaintiffs – Frank Eastman – did in fact utilize Section 633a(b)’s administrative complaint process to exhaust his administrative remedies. See Second Mot. for Recons. at 4-6.

4

The prospective plaintiffs first filed a motion for reconsideration and for leave to

file a subsequent memorandum in support of reconsideration in ten business days on January 24,

2008, to which defendants filed an opposition on February 5, 2008. At the status conference on

February 8, 2008, the Court construed the pending motion as a motion for extension of time and

granted it nunc pro tunc. The parties thereafter briefed the merits of the first motion for

reconsideration.

4

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They explain that plaintiffs’ new counsel only recently learned of Mr. Eastman’s administrative complaint challenging the FAA’s reduction-in-force. See id. at 4 & n.2.
Frank Eastman filed his administrative complaint on March 6, 2006. See Second Mot. for Recons. Ex. 1 at 1-4. On March 21, 2006, the Department of Transportation’s Office of Civil Rights (“DOT-OCR”) informed Mr. Eastman that because a motion for class certification was then pending in federal court and his administrative complaint would be subsumed within the pending civil class action complaint, the agency would hold his administrative complaint in abeyance until the Court issued a decision on class certification. See id. at 5-6. On September 28, 2006, because 180 days had elapsed since his complaint was filed and no class certification decision had been issued, the agency dismissed Mr. Eastman’s complaint as its final agency decision. See id. at 7-9. Mr. Eastman subsequently appealed this dismissal to the EEOC. See id. at 10-13. The EEOC affirmed the agency’s dismissal on March 19, 2007, and denied his subsequent motion for reconsideration on May 7, 2007. See id. at 14-18, 21. Mr. Eastman thus thoroughly exhausted his administrative remedies pursuant to Section 633a(b), see id. at 8, 16-17, 21, and did so prior to the prospective plaintiffs’ filing a motion for joinder on May 8, 2007. The prospective plaintiffs argue that this new evidence demonstrates that they had a basis for vicariously exhausting their administrative remedies and, as a result, they should be permitted to join the case.
In their opposition, defendants challenge the characterization of Mr. Eastman’s complaint as new evidence. See Opp’n to Second Mot. for Recons. at 3-4. Defendants also argue that vicarious exhaustion does not apply to the prospective plaintiffs’ claims because: (1) they were not named as members of the prospective class in the pleadings; (2) no administrative class complaint was filed in this case; and (3) the ADEA’s notice and exhaustion
5

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requirements are jurisdictional. See id. at 9-13. Finally, defendants contend that the prospective plaintiffs’ joinder motion falls outside of the applicable statute of limitations. See id. at 5-8.
In their reply brief, the prospective plaintiffs further explain why the Court should treat the fact that Mr. Eastman exhausted his administrative remedies as new evidence. See Reply to Second Mot. for Recons. at 1-3. The prospective plaintiffs submit a sworn declaration from the former office administrator of Gebhardt & Associates, plaintiffs’ prior counsel. See Reply to Second Mot. for Recons. Ex. 1. The declaration affirms that the former office administrator and, by implication, prior counsel were unaware of Mr. Eastman’s administrative complaint. See id. at 1-2. The prospective plaintiffs also respond to defendants’ arguments regarding vicarious exhaustion, asserting that: (1) the prospective plaintiffs’ claims are functionally identical to those of the current plaintiffs; (2) the prospective plaintiffs did not need to file an administrative class complaint, as the FAA had notice of the scope of the litigation; and (3) the ADEA’s notice and exhaustion requirements are not jurisdictional according to longstanding circuit precedent. See Reply to Second Mot. for Recons. at 3-5, 8-9. The prospective plaintiffs also argue that the motion for joinder was filed within the applicable statute of limitations. See id. at 5-8.
II. LEGAL STANDARD The Federal Rules of Civil Procedure do not specifically address motions for reconsideration. See Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 241-42 (D.D.C. 2015). “While the most analogous rule is Rule 60, which provides relief from a final judgment or order, motions to reconsider interlocutory orders are not governed by Rule 60(b), but rather, such determinations ‘are within the discretion of the trial court.’” Id. at 242 (quoting Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)); see also FED. R. CIV.
6

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P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”); Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997) (“Interlocutory orders are not subject to the law of the case doctrine and may always be reconsidered prior to final judgment. This is true even when a case is reassigned to a new judge.” (citations omitted)).
This judicial discretion is broad. While the judicial interest in finality disfavors reconsideration, a district court has inherent authority to reconsider its interlocutory orders “as justice requires.” See Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26, 30-31 (D.D.C. 2013), aff’d sub nom. Wannall v. Honeywell, Inc., 775 F.3d 425 (D.C. Cir. 2014) (citations omitted). Although the “as justice requires” standard may be imprecise, it is at least clear that a court has “more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate under Rules 59(e) and 60(b).” See id. at 30, 32 (internal quotations and citation omitted).
To determine whether justice requires reconsideration of an interlocutory decision, courts look to whether the moving party has demonstrated “(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law in the first order.” Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d at 242 (citation omitted). Even where none of these three factors is present, “the Court may nevertheless elect to grant a motion for reconsideration if there are other good reasons for doing so.” Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005). For example, justice may require revision where “the Court has patently misunderstood a party, has made a decision outside the adversarial
7

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issues presented to the Court by the parties, [or] has made an error not of reasoning but of apprehension . . . .” See Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal quotations and citation omitted); see also Stewart v. FCC, 189 F. Supp. 3d 170, 173 (D.D.C. 2016).
The efficient administration of justice requires, however, that there be good reason for a court to reconsider an issue already litigated by the parties: “[W]here litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Isse v. American Univ., 544 F. Supp. 2d 25, 30 (D.D.C. 2008) (quoting Singh v. George Washington Univ., 383 F. Supp. 2d at 101). Ultimately, the moving party has the burden to demonstrate “that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied.” FBME Bank Ltd. v. Mnuchin, 249 F. Supp. 3d 215, 222 (D.D.C. 2017) (quoting U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012)); see also Isse v. American Univ., 544 F. Supp. 2d at 29.
III. ANALYSIS A. The New Facts Presented to the Court Warrant Reconsideration Before addressing the merits, the Court must first determine whether the fact that Mr. Eastman administratively exhausted his complaint – a fact not previously known to the Court – warrants reconsideration. The parties do not dispute that Mr. Eastman thoroughly exhausted his administrative remedies. Rather, the parties dispute whether Mr. Eastman’s administrative complaint constitutes “new evidence” justifying reconsideration under the relevant case law. In doing so, they contest whether and when the parties knew that Mr. Eastman had filed an
8

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administrative complaint challenging the reduction-in-force, although they acknowledge that neither party notified the Court of this fact until the prospective plaintiffs filed the instant motion for reconsideration.
The prospective plaintiffs assert that plaintiffs’ former counsel – Joseph D. Gebhardt, of Gebhardt & Associates, LLP – was not aware of Mr. Eastman’s administrative complaint at the time the motion for joinder was filed. The prospective plaintiffs correctly note that Mr. Eastman submitted all of the administrative filings himself, and it does not appear that earlier administrative filings were sent to Gebhardt & Associates. See Second Mot. for Recons. Ex. 1 at 1-4, 10-13, 19-20. Mr. Eastman did list Gebhardt & Associates as his counsel, however, on the notice of appeal he personally submitted to the EEOC on November 3, 2006. See id. at 10. Subsequently, the EEOC listed Gebhardt & Associates on the certificate of mailing for its decision affirming the DOT-OCR’s dismissal, issued on March 19, 2007. See id. at 18. It is also worth noting, however, that after this mailing, Mr. Eastman requested reconsideration of the EEOC’s decision on his own behalf, without the apparent assistance of Gebhardt & Associates. See id. at 19-20.
The prospective plaintiffs also proffer the declaration of Leoni Bloomfield Benjamin, who worked as Gebhardt & Associates’ office administrator from the beginning of March 2007 until May 31, 2014. See Reply to Second Mot. for Recons. Ex. 1 at 1. Ms. Benjamin affirms in her declaration that she does not recall receiving the March 2007 EEOC decision in Mr. Eastman’s administrative case. See id. She further explains that she knew of the pending litigation and that the firm was not participating in any EEOC administrative proceedings. See id. Thus, she affirms, she would have brought the anomaly of receiving an administrative decision from the EEOC to the attention of the lawyers for whom she worked.
9

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See id. Instead, she “did not learn that Mr. Eastman had filed an EEO complaint (in addition to participating in the lawsuit) until informed of it in December 2016.” See id. at 1-2.
The prospective plaintiffs argue that not only was former counsel unaware of Mr. Eastman’s administrative complaint, but defendants were aware of this material fact and failed to notify the Court. Prior to the administrative appeal to the EEOC, the DOT-OCR itself handled Mr. Eastman’s administrative complaint. See Second Mot. for Recons. Ex. 1 at 5-9. And in their discovery responses, defendants provided a list of age discrimination complaints filed against the FAA that included Mr. Eastman’s administrative complaint, without noting its significance except to state that it was “procedurally dismissed.” See Second Mot. for Recons. at 4 n.2. Defendants thus possessed information that one of the original plaintiffs had exhausted his administrative remedies under Section 633a(b). But instead of disclosing this information, defendants affirmatively represented to the Court that “none of the plaintiffs [had] filed an administrative complaint” and did not correct this mistake at any later date. See Opp’n to Mot. for Joinder at 4 n.2.
Defendants do not address their own failures to disclose the fact that Mr. Eastman had exhausted his administrative remedies under Section 633a(b).5 But they maintain that because “Gebhardt was listed as Mr. Eastman’s attorney on his November 3, 2006, EEOC notice of appeal and the EEOC mailed its March 19, 2007, decision to both Mr. Eastman and Gebhardt,” and because Mr. Eastman was relatively active in the case, “[t]he record plainly reflects that plaintiffs’ counsel knew of Mr. Eastman’s administrative complaint at the time

5

The Court notes that while the DOT and FAA certainly knew Mr. Eastman had

filed an administrative complaint, it is unclear whether counsel at the Department of Justice also

had actual knowledge of this fact. Because it is not necessary to resolving the instant motion, the

Court need not explore this matter further.

10

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plaintiffs’ counsel filed the initial joinder motion.” See Opp’n to Second Mot. for Recons. at 4 (citations omitted). Defendants’ stance exaggerates the clarity of the matter.
Determining whether and when the parties knew or did not know of the existence of Mr. Eastman’s administrative complaint would be a highly fact-intensive inquiry. Resolution of the matter would require the Court to hold a hearing involving testimony from those who worked at Gebhardt & Associates and at the relevant federal agencies during the pertinent time periods, as well as the submission of exhibits. It would require that the Court parse who might accurately remember what they knew a decade ago. Such a hearing would amount to a trial-within-a-trial and only further delay resolution of this case. But while “new evidence” is one of the common justifications to which this Court looks first to determine whether reconsideration is appropriate, the Court’s discretion is not so limited.
Although it is unclear what the parties knew, Judge Roberts certainly did not know that Mr. Eastman had exhausted his administrative remedies under Section 633a(b) at the time he issued his January 7 and August 15, 2008, memorandum opinions and orders. To the contrary, Judge Roberts denied the prospective plaintiffs’ motion for joinder in reliance on a fact now known by all to be incorrect – he expressly based his prior rulings on the fact, advanced by both parties, that the original plaintiffs had all proceeded through the ADEA’s bypass provision, Section 633a(d), and none of them had exhausted their administrative remedies under Section 633a(b). In denying the first motion for reconsideration, Judge Roberts described this fact as “the crux” of his decision denying the motion for joinder. See Mem. Op. & Order at 4 (Aug. 15, 2008). And the undersigned did not know this fact – this “crux” of Judge Roberts’ decision – to be incorrect until the prospective plaintiffs filed the instant motion for reconsideration.
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In light of the circumstances presented and the entire history of this case, the Court finds the misapprehension of such a material fact to be “good reason” justifying reconsideration. Cf. Stewart v. FCC, 189 F. Supp. 3d at 173; Isse v. American Univ., 544 F. Supp. 2d at 29-30; Singh v. George Washington Univ., 383 F. Supp. 2d at 101-02. This is particularly so because the alternative would preclude the prospective plaintiffs from litigating their claims on their merits, the prejudice to defendants from granting the prospective plaintiffs’ motion for joinder is limited (and may be mitigated by the Court), see infra Part III(C), and any errors in failing to earlier discover Mr. Eastman’s complaint or disclose its existence to the Court would have been those of the defendants, their counsel, or plaintiffs’ former counsel. The prospective plaintiffs have met their burden to demonstrate that reconsideration is appropriate and injustice would result were reconsideration to be denied. See, e.g., FBME Bank Ltd. v. Mnuchin, 249 F. Supp. 3d at 222; Isse v. American Univ., 544 F. Supp. 2d at 29. The Court thus determines in its discretion that justice requires reconsideration.

B. The Prospective Plaintiffs Vicariously Exhausted Their Administrative Remedies Reconsidering the matter in light of the facts now presented, the Court must
assess whether the prospective plaintiffs vicariously exhausted their claims. Before bringing a civil suit under the ADEA, a plaintiff must exhaust
administrative remedies through the EEOC’s administrative complaint process or file notice in compliance with the ADEA’s bypass provision. See 29 U.S.C. § 633a; see also Peters v. District of Columbia, 873 F. Supp. 2d 158, 180 (D.D.C. 2012); cf. Davis v. District of Columbia, 246 F. Supp. 3d 367, 388 (D.D.C. 2017).6 The purpose of administrative exhaustion “is to afford the

6

This circuit’s case law does not entirely make clear whether the Section 633a(d)

bypass provision serves as one avenue for administratively exhausting claims or as an alternative

12

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agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts.” Peters v. District of Columbia, 873 F. Supp. 2d at 180 (quoting Artis v. Bernanke, 630 F.3d 1031, 1034 (D.C. Cir. 2011)). A plaintiff “need not individually file an EEOC complaint,” however, where another plaintiff has done so and “the two claims are so similar that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges.” See Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981); see also Peters v. District of Columbia, 873 F. Supp. 2d at 182; Coghlan v. Peters, 555 F. Supp. 2d 187, 201-02 (D.D.C. 2008). Rather, the doctrine of vicarious exhaustion (also known as the “single filing rule”) recognizes that in such circumstances, “it would be ‘wasteful, if not vain,’ to require separate EEOC filings.” Foster v. Gueory, 655 F.2d at 1322 (quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)); see also Peters v. District of Columbia, 873 F. Supp. 2d at 182.
With this rationale in mind, the applicability of the vicarious exhaustion doctrine hinges on the functional, rather than formal, similarity of the parties’ claims. See Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800, 807 (D.C. Cir. 2010) (holding that the claims of external applicants for nursing assistant positions were vicariously exhausted by claims asserted by internal applicants challenging the same employment test because their claims were “so
to exhaustion altogether. Compare Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (“We have held that the timeliness and exhaustion requirements of § 633a(d) are subject to equitable defenses and are in that sense non-jurisdictional.” (citations omitted)), with Kennedy v. Whitehurst, 690 F.2d 951, 964 (D.C. Cir. 1982) (“[U]nder the ADEA pursuit of a remedy through administrative channels is optional and not a mandatory prerequisite to the filing of a civil action. Neither the private nor the federal employee sections of the ADEA requires anything more by way of ‘exhaustion’ than the provision of notice to the appropriate federal official of the intention to sue.” (internal quotations and citations omitted)). Because this distinction is one without significance to deciding the instant motion for reconsideration, the Court does not attempt to resolve the question here.
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similar . . . that no purpose would be served by requiring them to file independent charges” (citation omitted)); Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C. Cir. 1985) (“The test . . . for vicarious exhaustion hinges on functional identity of claims . . . .” (citation omitted)); Davis v. District of Columbia, 246 F. Supp. 3d at 390 (holding that the vicarious exhaustion doctrine applied because “[t]he relevant EEOC charges and the claims before this court arose from the same allegedly discriminatory practices”). And when courts in this circuit have declined to invoke vicarious exhaustion, they have done so based on findings that the claims were not sufficiently similar, but substantively varied and individualized. See Peters v. District of Columbia, 873 F. Supp. 2d at 181-87 (holding that vicarious exhaustion was unavailable because claimants’ allegations of discrimination and retaliation were not factually similar to one another); Byrd v. District of Columbia, 807 F. Supp. 2d 37, 62-64 (D.D.C. 2011) (holding that vicarious exhaustion was unavailable where a plaintiff’s complaint would require “a different factual inquiry and testimony from different witnesses” compared to the administratively exhausted complaint). Application of the single filing rule does require, however, that at least one plaintiff in the case exhausted their administrative remedies and did so in a timely manner. See Coghlan v. Peters, 555 F. Supp. 2d at 201-02.
Considering Mr. Eastman’s administrative complaint and the very similar nature of the claims brought by the prospective plaintiffs, the Court agrees that the doctrine of vicarious exhaustion applies here. The claims exhausted in Mr. Eastman’s administrative complaint are functionally identical to those which the prospective plaintiffs seek to raise in this lawsuit. Mr. Eastman and the prospective plaintiffs were all formerly employed as flight service controllers and over forty years of age when they were adversely affected by the FAA’s reduction-in-force. See Am. Compl. at 78-79; Second Mot. for Recons. at 2; Second Mot. for
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Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 15 of 24
Recons. Ex. 1 at 5. Their claims concern the very same employment action and allege that this employment action amounted to age discrimination in violation of the ADEA. Because their claims are so functionally similar to Mr. Eastman’s claim, the prospective plaintiffs have vicariously exhausted their administrative remedies. See Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d at 807; Cook v. Boorstin, 763 F.2d at 1466; Davis v. District of Columbia, 246 F. Supp. 3d at 389-90.
Defendants’ contend that because Mr. Eastman was named as a plaintiff in this case and the prospective plaintiffs were not so named, vicarious exhaustion does not apply because the FAA would have treated the prospective plaintiffs’ administrative claims differently. This argument prioritizes technical form over functional identity and practical reality. The FAA knew it faced a potential class of aggrieved plaintiffs in the instant case and decided to hold in abeyance an individual administrative complaint, which would have been subsumed in the class action, pending the possibility that these grievances could be resolved in a single lawsuit. The Court is certainly not clairvoyant. But had each of the prospective plaintiffs timely filed administrative complaints, the agency likely would have held all of their functionally identical claims in abeyance too, pending resolution of the motion for class certification, and then dismissed the complaints after 180 days passed without a ruling on class certification. The review by the FAA or DOT-OCR of such administrative filings likely would have been futile and a waste of government resources.
In addition, defendants assert that the doctrine of vicarious exhaustion should not apply because Mr. Eastman filed his administrative complaint as an individual complainant. In support of this argument, defendants point to D.C. Circuit precedent holding that exhaustion of only four individual plaintiffs’ claims under the Rehabilitation Act could not be invoked as the
15

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 16 of 24
basis for vicariously exhausting the claims of fifty-four individuals in a prospective class action lawsuit challenging a medical test that had resulted in employment disqualifications. See Barkley v. U.S. Marshals Serv., 766 F.3d 25, 29-30, 33-37 (D.C. Cir. 2014). Noting the distinct administrative procedures for individual actions and class actions, the D.C. Circuit in Barkley v. United States Marshals Service explained that its holding reflected the importance of these procedures in affording “the affected government agency notice of the potential scale of a multiple-employee complaint” and providing it with an “opportunity to discover and correct discriminatory practices that may amount to class-wide discrimination.” See id. at 35 (citations omitted). This precedent does not govern here, however, for several distinct reasons.
First, the D.C. Circuit’s holding in Barkley involved an interpretation of the Rehabilitation Act, a statute that, unlike the ADEA, includes jurisdictional exhaustion requirements and lacks any bypass provision. See Barkley v. U.S. Marshals Serv., 766 F.3d at 34-35; see also Koch v. Schapiro, 699 F. Supp. 2d 3, 12 (D.D.C. 2010). Second, the D.C. Circuit’s holding in Barkley reflected its concern that permitting the administrative complaints of four individual plaintiffs to vicariously exhaust the claims of fifty other individual plaintiffs in a prospective class action would rob the agency of fair notice and an opportunity to respond to class-wide claims. See Barkley v. U.S. Marshals Serv., 766 F.3d at 35-37. Such concerns are not present here. Prior to the prospective plaintiffs’ motion for joinder, the agency received 834 bypass provision notices pursuant to Section 633a(d), as well as an administrative complaint pursuant to Section 633a(b), notifying it of the magnitude of the discrimination allegations. The DOT-OCR itself cited the prospective class action as its reason for holding Mr. Eastman’s administrative complaint in abeyance. And in doing so, the agency defined the proposed class as including “all Flight Service Air Traffic Control Specialists employed by the
16

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 17 of 24
FAA who are over 40 years of age and adversely affected by the FAA’s decision to eliminate federal employment and related benefits . . . at the 58 Automated Flight Service Stations as announced by the FAA on February 1, 2005,” see Second Mot. for Recons. Ex. 1 at 5 (emphasis added), a definition which would have included the prospective plaintiffs as class members. Third, the nature of the reduction-in-force itself put the agency on notice of the scale of the matter – the single employment action cost hundreds of affected individuals their jobs in one fell swoop and in one uniform manner. And despite the thirty-day notice of the bypass provision, as well as the opportunity to respond to Mr. Eastman’s administrative complaint, the agency chose not to resolve the flight service controllers’ grievances internally. Thus, it cannot be said that defendants lacked adequate notice or opportunity under the provisions of the ADEA to satisfy the purposes of administrative exhaustion. See Peters v. District of Columbia, 873 F. Supp. 2d at 180. The addition of fifteen or twenty individual plaintiffs to the group of former employees affected by the agency’s reduction-in-force – a group the agency knew numbered well over 800 – certainly would not have come as any surprise to defendants. Cf. Barkley v. U.S. Marshals Serv., 766 F.3d at 35-37.
Finally, defendants argue that vicarious exhaustion does not apply to ADEA claims because the statute’s notice and exhaustion requirements are jurisdictional. Certainly, if the ADEA’s exhaustion requirements were jurisdictional, this Court would have no authority to create an equitable exception, such as vicarious exhaustion, to that jurisdictional requirement. See Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 704 (D.C. Cir. 2009). But the D.C. Circuit has held that the timeliness and exhaustion requirements of Section 633a are not jurisdictional and are instead subject to equitable defenses. See Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (citing Kennedy v. Whitehurst, 690 F.2d 951, 961 (D.C. Cir. 1982), and Zipes
17

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 18 of 24
v. Trans World Airlines, 455 U.S. 385 (1982)); see also Koch v. Walter, 934 F. Supp. 2d 261, 269-270 (D.D.C. 2013); Koch v. Schapiro, 699 F. Supp. 2d at 12. Judge Roberts cited this line of precedent in denying the dismissed plaintiffs’ motion for joinder in 2008, see Breen v. Peters, 529 F. Supp. 2d at 26 (citing Rann v. Chao, 346 F.3d at 195), and defendants have not cited any intervening changes to this controlling authority.
To the contrary, the D.C. Circuit has made clear that in order for exhaustion to be considered jurisdictional, “a statute must contain ‘sweeping and direct statutory language indicating that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an element of the underlying claim.’” See Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (quoting Weinberger v. Salfi, 422 U.S. 749, 757 (1975)). If it wishes to so limit judicial review, Congress must state “in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision.” Id. (quoting I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984)).
The ADEA contains no such “sweeping and direct statutory language.” See Avocados Plus Inc. v. Veneman, 370 F.3d at 1248. Section 633a(b), which provides for the administrative complaint process, contains no language restricting the jurisdiction of federal courts, let alone language that does so in “clear, unequivocal terms.” See id. Likewise, Section 633a(c), which describes the federal courts’ jurisdiction to hear civil actions, does not contain any limiting language which could be read to restrict jurisdiction. See Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d at 705; Avocados Plus Inc. v. Veneman, 370 F.3d at 1248. Although Section 633a(d) states that “no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days’ notice
18

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 19 of 24
of an intent to file such action,” this language by its own terms governs only “[w]hen the individual has not filed a complaint concerning age discrimination with the Commission” pursuant to Section 633a(b). The limits Congress imposed solely on the bypass provision thus do not control the entirety of Section 633a. There thus is no jurisdictional bar to this Court’s reconsidering the matter, in light of the fact that Mr. Eastman exhausted his administrative remedies pursuant to Section 633a(b), and concluding that the vicarious exhaustion doctrine applies to the prospective plaintiffs’ claims.
C. Permitting the Prospective Plaintiffs to Join the Case Would Serve the Interests of Justice and Is Not Rendered Futile by the Statute of Limitations
Having determined that the prospective plaintiffs did in fact vicariously exhaust their claims, the Court must finally decide whether to permit the prospective plaintiffs to join this case. Cf. Brooks v. Dist. Hosp. Partners, 606 F.3d at 808 (explaining that the single filing rule does not apply unless a party has been properly joined to the suit brought by the original filer).
The parties spill much ink fighting about the applicable statute of limitations. But in doing so, they fail to address (or even mention) the basic legal standards that apply to a motion seeking to amend a complaint to add a plaintiff. In assessing the relevant legal authorities, the Court determines that the prospective plaintiffs’ claims would relate back to the original complaint, which defendants do not dispute was timely filed. As a result, the Court need not resolve the parties’ dispute regarding the applicable statute of limitations.
Rule 21 of the Federal Rules of Civil Procedure provides, in relevant part, that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” FED. R. CIV. P. 21. In turn, Rule 20 sets forth guidelines for permissive joinder, providing that parties may join an action as plaintiffs if “they assert any right to relief . . . with respect to or arising out
19

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 20 of 24
of the same transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all plaintiffs will arise in the action.” See FED. R. CIV. P. 20(a)(1). The Court thus has discretion in determining whether to permit the prospective plaintiffs to join this case, so long as it does so “on just terms” and in accordance with Rule 20 governing permissive joinder. See also Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. 460, 462-63 (D.D.C. 2017). In exercising this discretion, courts also assess the potential for prejudice to any party or undue delay. See id. at 463.
The Court is not aware of any reason why the prospective plaintiffs would fail to meet the Rule 20 standard. As noted above, defendants do not articulate any opposition to the contrary, except to state that they would be unfairly prejudiced were the prospective plaintiffs permitted to join the case. See Opp’n to Second Mot. for Recons. at 13 n.6. Instead, defendants argue that the prospective plaintiffs’ claims would be barred by the statute of limitations.
The Court’s granting of a joinder motion “does not resuscitate claims that are barred by the statute of limitations.” See Griffin v. District of Columbia, 1996 WL 294280, at *1 n.1 (D.D.C. May 28, 1996); see also 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 1688 (3d ed. 2017). And futility is grounds to deny a motion to join a plaintiff where the prospective plaintiffs’ claims would not survive a motion to dismiss because of the statute of limitations. See Fleck v. Cablevision VII, Inc., 799 F. Supp. 187, 190 (D.D.C. 1992); see also Hawkins v. Groot Indus., Inc., 210 F.R.D. 226, 229 (N.D. Ill. 2002).
Rule 15 of the Federal Rules of Civil Procedure governs when, for statute of limitations purposes, an amended complaint relates back to an earlier filed complaint. Although the Rule only expressly deals with amendments that change “the party . . . against whom a claim
20

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 21 of 24
is asserted,” see FED. R. CIV. P. 15(c)(1)(C), the Advisory Committee’s notes make clear that the Rule applies by analogy to amendments that add plaintiffs as well. See FED. R. CIV. P. 15 advisory committee’s note to 1966 amendment; see also Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1308 (D.C. Cir. 1982). In order to invoke the relation-back doctrine, Rule 15 requires two things: (1) the new claim must arise from the same “conduct, transaction, or occurrence” set forth in the original pleading; and (2) the party against whom the claim is asserted must have had sufficient notice of the claim. See FED. R. CIV. P. 15(c)(1)(C); Leachman v. Beech Aircraft Corp., 694 F.2d at 1308-09. Such notice must come “within the period provided by Rule 4(m) for serving the summons and complaint.” See FED. R. CIV. P. 15(c)(1)(C).
The prospective plaintiffs seek to challenge, as a violation of the ADEA, the loss of their jobs resulting from the FAA’s reduction-in-force – the very same employment decision that serves as the basis for the current plaintiffs’ claims brought under the very same statute. As a result, they meet the “conduct, transaction or occurrence” requirement. See, e.g., Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 17 (D.D.C. 2011); Page v. Pension Benefit Guar. Corp., 130 F.R.D. 510, 512 (D.D.C. 1990). The only remaining issue thus concerns notice.
In cases such as this one, “when a new plaintiff with a new claim is sought to be added after the statute of limitations has lapsed, something more is needed than merely notice to the defendant of the conduct or occurrence that gave rise to the claim.” See Leachman v. Beech Aircraft Corp., 694 F.2d at 1308. Adopting the reasoning of the Fifth Circuit, the D.C. Circuit has explained:
Not only must the adversary have had notice about the operational facts, but it must have had fair notice that a legal claim existed in and was in effect being asserted by, the party belatedly brought in. This becomes of special importance in situations in which a common set of operational facts gives rise to distinct claims . . . among distinct claimants . . . .
21

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 22 of 24
Id. at 1308-09 (quoting Williams v. United States, 405 F.2d 234, 238 (5th Cir. 1968)). To fulfill this notice requirement, therefore, defendants must have both notice of the existence of the prospective plaintiffs’ claims and of their involvement in the original action. See Page v. Pension Benefit Guar. Corp., 130 F.R.D. at 512 (citations omitted). This notice requirement can be met either informally, such as when “the relationship between the original and new plaintiffs forms an ‘identity of interest,’” see id. at 512-13 (citations omitted), or formally, such as when a plaintiff files a class action complaint, see Griffin v. District of Columbia, 1996 WL 294280 at *2 n.2; see also Fleck v. Cablevision VII, Inc., 799 F. Supp. at 192. In addition, the failure of a complaint to effect notice does not foreclose the issue where a party has received actual notice. See Page v. Pension Benefit Guar. Corp., 130 F.R.D. at 513.
Here, defendants had fair notice of the prospective plaintiffs’ claims and their potential involvement in the litigation because the original complaint was instituted as a prospective class action. See Fleck v. Cablevision VII, Inc., 799 F. Supp. at 192. The amended complaint explained that the class included “approximately 834 of the FAA’s 1,770 current Flight Service Controllers,” and noted that additional individuals might be included in the class in the future. See Am. Compl. at 78-79 & n.1, 84 & n.2. And the FAA itself characterized the proposed class as including “all Flight Service Air Traffic Control Specialists employed by the FAA who are over 40 years of age and adversely affected by the FAA’s decision to eliminate federal employment and related benefits . . . at the 58 Automated Flight Service Stations as announced by the FAA on February 1, 2005.” Second Mot. for Recons. Ex. 1 at 5 (emphasis added). Such a definition certainly would have included the prospective plaintiffs as class members. Thus, defendants knew that a class of affected plaintiffs had sued to challenge the reduction-in-force and, through their own employment records, knew the identities of the
22

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 23 of 24
plaintiffs who had been subject to the challenged employment action. Defendants had “fair notice” of the scope of the case and understood that the alleged discriminatory action had affected numerous individuals, including the prospective plaintiffs. Cf. Fleck v. Cablevision VII, Inc., 799 F. Supp. at 192; Hawkins v. Groot Indus., Inc., 210 F.R.D. at 232. The prospective plaintiffs have not sought to “chang[e] any of the underlying facts” giving rise to liability, and defendants had fair notice of their claims and potential involvement in the case. Cf. Golden v. Mgmt. & Training Corp., 266 F. Supp. 3d 277, 281-83 (D.D.C. 2017). Thus, under these circumstances, the relation back doctrine applies. As a result, the statute of limitations would not bar the prospective plaintiffs’ claims.
Having determined that joinder would not be futile, the Court also concludes that the prospective plaintiffs could be permitted to join this action “on just terms” and that doing so would serve the interests of justice. See FED. R. CIV. P. 21; Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. at 462-63. As discussed above, the prospective plaintiffs assert claims that arise out of the same conduct and occurrence giving rise to the current plaintiffs’ claims, and these claims share many common questions of law and fact. See FED. R. CIV. P. 20(a)(1). In addition, defendants have not identified any unfair prejudice which the Court could not mitigate or resolve, and any resulting delays would be minor.7 For example, defendants have not been

7

The Court, in a separate opinion [Dkt. No. 378] issued today, has addressed the

potential for unfair prejudice and undue delay resulting from the late reinstatement of numerous

dismissed plaintiffs. The Court’s discussion in that opinion – determining that the risk of unfair

prejudice was minimal, as was the risk of undue delay, and that any unfair prejudice could be

mitigated or resolved by the Court – also generally applies to the Court’s analysis here. In fact,

defendants do not raise any arguments in their opposition to the instant motion for

reconsideration regarding the matter of prejudice, except to cite their brief opposing the

dismissed plaintiffs’ motion for reconsideration. See Opp’n to Second Mot. for Recons. at 13

n.6. Thus, while the Court summarizes its conclusions here, it directs the parties to its earlier

opinion for a more fulsome assessment of the matter.

23

Case 1:05-cv-00654-PLF Document 380 Filed 03/27/18 Page 24 of 24

unfairly prejudiced by the fact that the prospective plaintiffs have not participated in discovery. Defendants already have access to much of the information they would have requested in discovery responses, because each individual was a federal employee. And the prospective plaintiffs’ discovery responses regarding liability would have been duplicative, while damages discovery must be supplemented for all plaintiffs in any event. Furthermore, any unfair prejudice to defendants may be mitigated or resolved by the Court – for example, by permitting abbreviated additional discovery, limiting the testimony or evidence presented at trial to exclude matters not fairly raised in discovery, or imposing restrictions to account for any lost or destroyed evidence. As defendants will suffer only minimal, if any, prejudice, and joinder will not create any undue delays, the Court determines that permitting the prospective plaintiffs to join the case and resolve their disputes on the merits would serve the interests of justice.
IV. CONCLUSION For the reasons set forth in this opinion, the Court will grant the prospective plaintiffs’ motion to reconsider the Court’s prior orders denying them leave to join or, in the alternative, intervene and permit the prospective plaintiffs to join this case. An order consistent with this opinion shall issue this same day. SO ORDERED.

DATE: March 27, 2018

_________/s/_____________ PAUL L. FRIEDMAN United States District Judge

24

 
 Case 1:05-cv-00654-PLF Document 382 Filed 04/10/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN BREEN, et al., Plaintiffs,
v.
ELAINE CHAO, SECRETARY OF TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 05-cv-654 (PLF) ) ) ) ) ) )

SECOND AMENDED COMPLAINT
1. By and through undersigned counsel, Plaintiffs hereby add the following Plaintiffs1,
pursuant to the March 27, 2018, Order of this Court (Dkt. No. 379) and Federal Rule of Civil
Procedure 20:
Maurice J. Aytes 111-41 178th Place Addisleigh Park, NY 11433
Norman DeShon* 1831 Highway Avenue NE Salem, OR 97301
Anthony T. Flynn 1600 Chase Oaks Drive Keller, TX 76248

1 Plaintiffs whose names are marked with an asterisk were not part of the Court’s Order of March 27, 2018 (Dkt. No. 379). They are similarly situated to those with whom they are listed, in that they moved for joinder or intervention with the 15 Plaintiffs named in the Order, and for reconsideration of the initial denial of joinder or intervention by Judge Roberts. They are the subject of a Motion for Reconsideration filed simultaneously with this Second Amended Complaint.
1

Case 1:05-cv-00654-PLF Document 382 Filed 04/10/18 Page 2 of 5
Rodney A. Green 4840 West Howe Road DeWitt, MI 48820
Richard A. Hensley* 3955 Zodiacal Light Street Las Vegas, NV 89129
Dave D. Herner 410 Minnie Avenue Wilton, ND 58579
James R. McNealy 8882 SW 229th Street Cutler Bay, FL 33190
Maurice E. Michaud* 116 S. Levant Road Levant, ME 04456
Ghassen Nasser 2807 Manning Drive Trinity, FL 34655
Chris S. Novak 48060 Woken Court Kenai, AK 99611
Donald J. Peters 226 Harris Road Fayetteville, GA 30215
Richard Piotrowiak 660 Kathy Drive Bourbonnais, IL 60914
Isiah Richardson, Jr. 14439 S. Bensley Street Burnham, IL 60633
Stephen E. Savino 1623 Kawati Way Krum, TX 76249
2

Case 1:05-cv-00654-PLF Document 382 Filed 04/10/18 Page 3 of 5
Frank Sorich 1424 Mesa Flats Drive Haslet, TX 76052
Frank Spina 323 W. Katmai Avenue Soldotna, AK 99669
Janice Sykes PO Box 340 Kenai, AK 99611
Bernard Wood 6651 Canterbury Drive Frisco, TX 75035 2. Prior to October 3, 2005, all of the Plaintiffs named herein were employed as Air Traffic Control Specialists in the Flight Service component of the FAA, and were on that date over 40 years of age. 3. All of the factual allegations and legal contentions of the First Amended Complaint, filed June 24, 2005 (Dkt. No. 3) are incorporated by reference into this Second Amended Complaint.
Plaintiffs conferred with Defendants regarding this Motion, and Defendants state as follows: “Although Defendants do not intend to file an opposition to Plaintiffs’ motion to amend their complaint to add the three identified individuals as plaintiffs, Defendants continue to believe that such joinder is inappropriate for the reasons articulated in Defendants’ opposition to Plaintiffs’ motion to reconsider denial of joinder or intervention. See Dkt. No. 331.”
Prayer for Relief WHEREFORE, Plaintiffs respectfully request this Court to:
a. Award appropriate back pay and benefits, front pay, and record correction to the Plaintiffs; 3

Case 1:05-cv-00654-PLF Document 382 Filed 04/10/18 Page 4 of 5
b. Award reasonable attorney’s fees and expenses of bringing this action and the earlier administrative action; and
c. Order such other and further relief as the Court deems just and proper. Respectfully submitted, /S/ MICHAL SHINNAR Michal Shinnar, Esq. Bar No. MD0033 GILBERT EMPLOYMENT LAW, P.C. 1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910 Tel: (301) 608-0880 Fax: (301) 608-0881 mshinnar-efile@gelawyer.com Attorney for Plaintiffs
4

Case 1:05-cv-00654-PLF Document 382 Filed 04/10/18 Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via the CM/ECF electronic filing system on this 10th day of April, 2018, and thereby served upon the parties and/or their counsel. The following individuals, who are not served via the CM/ECF electronic filing system, were served via first-class mail: TOM DOMINGO RR2 Box 228 Gilman Road Elkins, WV 26241 JULIA GREENWAY 5912 Cove Landing Road, Unit 302 Burke, VA 22105
By: /S/ MICHAL SHINNAR Michal Shinnar, Esq.
GILBERT EMPLOYMENT LAW, P.C. 1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910 Telephone: (301) 608-0880 Facsimile: (301) 608-0881
5

 
 Case 1:05-cv-00654-PLF Document 397 Filed 07/17/18 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ELAINE L. CHAO, Secretary of

)

Transportation, Department of

)

Transportation, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

MEMORANDUM OPINION AND ORDER This case has been pending since 2005. It was originally assigned to Judge Richard W. Roberts, and was transferred to the undersigned upon his retirement on April 1, 2016. At about the same time, new counsel entered their appearances on behalf of plaintiffs. Thereafter, the Court held a comprehensive status conference, entered a scheduling order, and ordered further briefing on the then-pending motion for summary judgment and motions for reconsideration. On May 26, 2017, the Court issued an opinion and order granting in part and denying in part defendants’ motion for summary judgment. On March 27, 2018, the Court granted the motion of previously dismissed plaintiffs for reconsideration of Judge Roberts’ orders of dismissal and reinstated the claims of 226 movants. On the same day, it issued a separate opinion and order granting reconsideration to fifteen prospective plaintiffs, permitting them to intervene, and inviting plaintiffs to file an amended complaint. Plaintiffs filed the second amended complaint on April 10, 2018. Following a status conference on May 1, 2018,

Case 1:05-cv-00654-PLF Document 397 Filed 07/17/18 Page 2 of 3
plaintiffs filed the instant motion to reopen discovery [Dkt. No. 391], a motion which defendants vigorously oppose.
The parties acknowledge that discovery closed over nine years ago, and defendants argue that it would cause them serious harm and undue prejudice if the Court were to reopen discovery now. The parties also agree that the Court has substantial discretion in deciding whether to reopen discovery, and that the Court’s discretion is guided by Rule 16(b)(4) of the Federal Rules of Civil Procedure, which requires a showing of “good cause” to amend a scheduling order and reopen discovery. See FED. R. CIV. P. 16(b)(4); see also In re Rail Freight Fuel Surcharge Antitrust Litig., 138 F. Supp. 3d 1, 2 (D.D.C. 2015). As the Court stated at the status conference on May 1, 2018, it has a good deal of sympathy with defendants’ position that reopening discovery at this late date would be unfair, even despite the fact that new, more diligent counsel have entered their appearances on behalf of plaintiffs. The Court also indicated at the status conference that it found plaintiffs’ more discrete request to add an expert to be more persuasive than any request to more broadly reopen discovery.
By their motion, plaintiffs have sought (1) to add an expert, Dr. Robert Nelson, who can provide an opinion on the procedures employed by the Federal Aviation Administration (“FAA”) during the A-76 competition at issue in this case, and (2) to reopen discovery for what they refer to as “the limited purpose of allowing plaintiffs to propound six discovery requests” under Rule 34 of the Federal Rules of Civil Procedure. Defendants oppose both requests. They oppose the designation of a new expert on the ground that plaintiffs, through prior counsel, were not diligent in proposing such an expert earlier and because the addition of a new expert now would require defendants to undertake the cost of retaining their own expert who would need to prepare reports and sit for a deposition. The Court agrees that plaintiffs, through former counsel,
2

Case 1:05-cv-00654-PLF Document 397 Filed 07/17/18 Page 3 of 3

should have been more diligent and acknowledges that the government will be burdened financially and otherwise if the Court grants plaintiffs’ motion. Given the centrality of the issues on which the expert would opine, however, the Court is persuaded that the motion should be granted with respect to plaintiffs’ proposed expert.
On the other hand, the Court is not inclined to reopen discovery to permit additional document requests. Such requests, although limited, come too late. The Court nevertheless appreciates defendants’ cooperative attitude and desire to move the case forward to trial. To that end, they have proposed entering into a stipulation with plaintiffs under Rule 29(b) of the Federal Rules of Civil Procedure, pursuant to which they would agree to search for and produce any non-privileged documents responsive to plaintiffs’ six document requests. The Court will approve such a stipulation if tendered by the parties. For these reasons, it is hereby
ORDERED that plaintiffs’ motion to reopen discovery [Dkt. No. 391] is GRANTED in part and DENIED in part; and it is
FURTHER ORDERED that discovery is reopened for the limited purpose of permitting expert reports and testimony regarding the requirements of the A-76 process and the extent to which the FAA process was consistent with or different from the requirements and practices of other agencies conducting A-76 competitions.
SO ORDERED.

DATE: July 17, 2018

__________/s/___________ PAUL L. FRIEDMAN United States District Judge

3

 
 Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ELAINE L. CHAO, Secretary of

)

Transportation, Department of

)

Transportation, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-0654 (PLF)

MEMORANDUM OPINION AND ORDER This matter is before the Court on plaintiffs’ motion to join additional plaintiffs [Dkt. No. 399].1 Filed pursuant to the Court’s July 16, 2018 Minute Order, the plaintiffs’ motion seeks joinder of 114 additional plaintiffs who were not previously named in the complaints and who have not previously sought to join this case.2 The government has filed a memorandum in opposition [Dkt. No. 401], and the plaintiffs have filed a reply in support of their motion [Dkt.

1

The Court has reviewed the following filings in resolving the pending motion:

First Amended Complaint [Dkt. No. 3]; Plaintiffs’ Motion to Join Additional Plaintiffs (“Pl. Mot.

Join”) [Dkt. No. 399]; Government’s Opposition to the Plaintiffs’ Motion to Join Additional

Plaintiffs (“Opp.”) [Dkt. No. 401]; and Plaintiffs’ Reply (“Reply”) [Dkt. No. 402].

2

Plaintiffs’ motion to join additional plaintiffs requests that the Court allow 113

individuals to join the case. See Pl. Mot. Join at 4; Pl. Mot. Join Ex. A. Without filing a

correction, plaintiffs have indicated in a footnote in their reply brief that the original number and

list of individuals seeking to join the case was incorrect. See Reply at 2 n.3. Instead, plaintiffs

state, 114 individuals seek to join the case. See id. In their Reply, plaintiffs detail three edits to

the original list submitted to the motion as Exhibit 1, but have not provided an updated and

complete list of the movants. See id.

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 2 of 10
No. 402]. Having considered the parties’ arguments, the relevant legal authorities, and the entire record in this case, the Court will deny the plaintiffs’ motion without prejudice.
The Court has previously considered whether to allow additional plaintiffs to join this case and it permitted fifteen prospective plaintiffs to do so. See Breen v. Chao, Civil Action No. 05-0654 (PLF), 2018 WL 1509077 (D.D.C. Mar. 27, 2018).3 Plaintiffs now argue that the Court should permit 114 additional plaintiffs to join the case because “[t]he Court’s March 27, 2018 Order permitting the previous prospective plaintiffs into the case applies equally to the[ ] additional prospective plaintiffs at issue in this Motion.” See Pl. Mot. Join at 5.
Plaintiffs assert that the 114 prospective plaintiffs’ circumstances match those of the fifteen individuals who were allowed to join the case in March 2018: The prospective plaintiffs were all formerly employed as flight service controllers, over the age of 40 when they were adversely affected by the Federal Aviation Administration’s (“FAA”) reduction-in-force (“RIF”), and “seek to bring functionally identical claims under the [Age Discrimination in Employment Act (“ADEA”)], challenging the loss of their jobs resulting from the RIF.” See Pl. Mot. Join at 10. According to plaintiffs, the 114 individuals also vicariously exhausted their administrative remedies, thereby meeting the condition upon which the Court decided to admit the fifteen prospective plaintiffs. See id. at 10-11; Breen v. Chao, 2018 WL 1509077, at *6-11. In addition, the plaintiffs argue that the 114 prospective plaintiffs’ claims relate back to the original complaint and – just as the Court found in relation to the fifteen individuals previously permitted to join – their claims therefore are not time-barred by the statute of limitations. See Pl.

3

The Court will limit its discussion to the facts and the procedural history most

relevant to the instant motion. A more fulsome discussion of the facts of this case can be found

in the Court’s prior decisions. See, e.g., Breen v. Chao, 253 F. Supp. 3d 244 (D.D.C. 2017);

Breen v. Chao, 2018 WL 1509077.

2

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 3 of 10
Mot. Join at 11; Breen v. Chao, 2018 WL 1509077, at *9-11. For these reasons, plaintiffs contend that “[t]hese additional prospective plaintiffs should . . . be permitted to join the case on the same grounds applied to the former prospective plaintiffs.” See Pl. Mot. Join at 5. The question for the Court, therefore, is whether the reasoning and decision set forth in the Court’s March 27, 2018 Opinion is a sufficient basis on which to permit the 114 additional prospective plaintiffs to join the case. The Court concludes that it is not.
A. Permissive Joinder Not Barred by Rule 20 or Rule 15 In its prior decision permitting fifteen prospective plaintiffs to join this case, the Court determined that the plaintiffs met “the basic legal standards that apply to a motion seeking to amend a complaint to add a plaintiff” – specifically, Rules 15 and 20 of the Federal Rules of Civil Procedure. See Breen v. Chao, 2018 WL 1509077, at *9-11. Here, the government does not argue against the joinder under Rule 15 or Rule 20. And the Court sees no reason why the rationale that substantiated its decision to allow the fifteen prospective plaintiffs to join the case would not also apply to these 114 prospective plaintiffs. The government points to only one factor to distinguish between the fifteen plaintiffs who were allowed to join the case in March of 2018 and the 114 prospective plaintiffs now seeking to join: when plaintiffs moved to join them. Rule 21 of the Federal Rules of Civil Procedure provides that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” See FED. R. CIV. P. 21. Under Rule 20, trial courts may allow the joinder of plaintiffs to an action if the plaintiffs “assert any right to relief . . . with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and if “any question of law or fact common to all plaintiffs will arise in the action.” See FED. R. CIV. P. 20(a)(1). In exercising this discretion, courts also assess the potential for prejudice to any party or any undue delay. See Alexander v. Edgewood Mgmt.
3

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 4 of 10
Corp., 321 F.R.D. 460, 463 (D.D.C. 2017). Thus, the Court has discretion to permit the prospective plaintiffs to join this case, so long as it does so “on just terms,” see FED. R. CIV. P. 21, and in accordance with Rule 20 governing permissive joinder. See FED. R. CIV. P. 20; see also Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. at 462-63. Just as it explained in its March 27, 2018 Opinion, the Court is not aware of any reason why the prospective plaintiffs would fail to meet the Rule 20 standard, see Breen v. Chao, 2018 WL 1509077, at *9, nor does the government articulate any opposition under Rule 20.
But a joinder pursuant to Rule 21 is “not immune from the statute of limitations.” See 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 1688 (3d ed. 2018); see also Griffin v. District of Columbia, Civil Action No. 93-2617 (PLF), 1996 WL 294280, at *1 n.1 (D.D.C. May 29, 1996) (explaining that the granting of a joinder motion “does not resuscitate claims that are barred by the statute of limitations.”). And futility is a ground on which to deny a motion to join a plaintiff where the prospective plaintiffs’ claims would not survive a motion to dismiss because of the statute of limitations. See Fleck v. Cablevision VII, Inc., 799 F. Supp. 187, 190 (D.D.C. 1992); see also Hawkins v. Groot Indus., Inc., 210 F.R.D. 226, 229 (N.D. Ill. 2002).
Rule 15 of the Federal Rules of Civil Procedure governs when, for statute of limitations purposes, an amended complaint relates back to an earlier filed complaint. See Breen v. Chao, 2018 WL 1509077, at *9. Although Rule 15 only expressly deals with amendments that change “the party . . . against whom a claim is asserted,” usually the defendant, see FED. R. CIV. P. 15(c)(1)(C), the Advisory Committee’s notes make clear that the Rule applies by analogy to amendments that add plaintiffs as well. See FED. R. CIV. P. 15 advisory committee’s note to 1966 amendment; see also Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1308 (D.C. Cir.
4

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 5 of 10
1982). In order to invoke the relation-back doctrine, Rule 15 requires two things: (1) the new claim must arise from the same “conduct, transaction, or occurrence” set forth in the original pleading; and (2) the party against whom the claim is asserted must have had sufficient notice of the claim. See FED. R. CIV. P. 15(c)(1)(C); Leachman v. Beech Aircraft Corp., 694 F.2d at 1308-09. Such notice must come “within the period provided by Rule 4(m) for serving the summons and complaint.” FED. R. CIV. P. 15(c)(1)(C).
The Court concluded in its March 2018 Opinion that the statute of limitations did not bar the joinder of the fifteen individuals because their claims related to the original complaint, which the government did not dispute was timely filed. See Breen v. Chao, 2018 WL 1509077, at *9-10. Similarly, the Court does not see any reason why the relation back doctrine would not apply equally to the 114 prospective plaintiffs’ claims. Just as with the admitted plaintiffs, the instant 114 prospective plaintiffs seek to challenge, as a violation of the ADEA, the loss of their jobs resulting from the FAA’s RIF – that is, the same employment decision that serves as the basis for the current plaintiffs’ claims brought under the same statute. See First Amended Complaint ¶ 1 [Dkt. No. 3]; Pl. Mot. Join at 10. The 114 prospective plaintiffs therefore meet the “conduct, transaction or occurrence” requirement, just as their previous counterparts did. See Breen v. Chao, 2018 WL 1509077, at *9-10; see also Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 17 (D.D.C. 2011); Page v. Pension Benefit Guar. Corp., 130 F.R.D. 510, 512 (D.D.C. 1990).
In addition, the government had sufficient notice of the 114 prospective plaintiffs and their potential involvement in the case – just as it had fair notice of the fifteen previous individuals and their claims – because the original complaint was instituted as a prospective class action. See Breen v. Chao, 2018 WL 1509077, at *10; see also Fleck v. Cablevision VII, Inc.,
5

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 6 of 10
799 F. Supp. at 192. Like their predecessors, the 114 prospective plaintiffs not only fit the definition of the prospective class – which included “approximately 834 of the FAA’s 1,770 current Flight Service Controllers” – but also meet the FAA’s own class definition, which included “all Flight Service Air Traffic Control Specialists employed by the FAA who are over 40 years of age and adversely affected by the FAA’s decision to eliminate federal employment and related benefits.” See Breen v. Chao, 2018 WL 1509077, at *10. The Court concludes, therefore, that the joinder of the 114 prospective plaintiffs would not be futile.
Nor can the Court find any reason why prejudice should proscribe the addition of these 114 prospective plaintiffs when it did not bar the joinder of the other plaintiffs. Rule 21 provides that a court may allow a party to join “on just terms.” See FED. R. CIV. P. 21. In its prior Opinion, the Court concluded that the addition of the fifteen individuals not only met that standard, but that allowing them to resolve their disputes on the merits would serve the interests of justice. See Breen v. Chao, 2018 WL 1509077, at *11; see also Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. at 462-63. In so deciding, the Court determined that the government would suffer only minimal, if any, prejudice, and that joinder would not create any undue delays. See Breen v. Chao, 2018 WL 1509077, at *11.
Here, the government argues that the joinder of 114 new plaintiffs would cause further delay and “encourage[] more potential plaintiffs to join,” causing the government undue prejudice. See Opp. at 6. Certainly, the addition of 114 new plaintiffs would expand the potential liability of the government. But there has been no substantial change in the status of this matter since the Court’s previous Order that would substantiate new cause for concern of prejudice. In the intervening months, the parties have engaged in limited expert discovery, which is still on-going; the addition of 114 plaintiffs would not impact that progress. See
6

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 7 of 10
February 15, 2019 Joint Status Report [Dkt. No. 419]. Moreover, any unfair prejudice to defendants may be mitigated or resolved by the Court. See Breen v. Chao, 2018 WL 1509077, at *11.
B. Failure to Show “Good Cause” under Rule 16 The fact that the joinder of the 114 prospective plaintiffs is permissible does not end the Court’s inquiry. The government opposes the joinder of these additional plaintiffs because it would contravene a prior court order. See Opp. at 1. On February 9, 2007, Judge Roberts – to whom this case was originally assigned – issued a scheduling order, ordering that all joinders of parties were to be submitted to the Court by May 8, 2007. See February 9, 2007 Scheduling Order at 1 [Dkt. No. 53]. According to the government, the plaintiffs’ reliance on the Court’s March 2018 decision allowing the joinder of the fifteen individuals is mistaken because those fifteen individuals sought joinder before the court-determined deadline for doing so had lapsed. See Opp. at 1. The Court agrees that this is a valid distinction. The fifteen prospective plaintiffs who were permitted to join by the Court’s March 27, 2018 Order first moved to join the case on May 8, 2007 [Dkt. No. 63]. Here, in contrast, the 114 prospective plaintiffs seek joinder to the case almost twelve years after that deadline – without explanation for their delay. See id. at 1. Rule 16 of the Federal Rules of Civil Procedure provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” See FED. R. CIV. P. 16(b)(4). The D.C. Circuit has recognized that “[t]he good cause standard requires the party seeking relief to show that the deadlines cannot reasonably be met despite [its] diligence.” See Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226 (D.C. Cir. 2011) (alterations in original) (internal quotations omitted) (quoting S & W Enters., L.L.C. v. S. Trust Bank of
7

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 8 of 10
Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003)); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“If the party was not diligent, the inquiry should end.”); Wye Oak Tech., Inc. v. Republic of Iraq, Civil No. 1:10-cv-01182-RCL, 2018 WL 4623564, at *1 (D.D.C. Sep. 26, 2018); United States v. Kellogg Brown & Root Servs., Inc., 285 F.R.D. 133, 136 (D.D.C. 2012). “Rule 16(b)’s good cause standard focuses on the timeliness of the amendment and the reasons for its tardy submission.” Ijoor v. Consummate Comput. Consultants Sys., LLC, Civil Action No. 15-1292 (ESH), 2017 WL 9613962, at *1 (D.D.C. Sep. 8, 2017) (quoting Lurie v. Mid-Atl. Permanente Med. Grp., P.C., 589 F. Supp. 2d 21, 23 (D.D.C. 2008)). In addition, even “if the moving party establishes that she acted diligently, she must also show that there is a lack of prejudice to the opposing party.” See Lovely-Coley v. District of Columbia, 255 F. Supp. 3d 1, 7 (D.D.C. 2017); see also Richardson v. Yellen, 323 F.R.D. 444, 446 (D.D.C. 2018) (“To show good cause, the moving party must show both diligence and a lack of prejudice to the opposing parties.”).
The government argues that these 114 plaintiffs should not be allowed to join after the court-ordered deadline has passed without demonstrating “good cause” to modify the May 2007 scheduling order – a test which plaintiffs fail to meet. See Opp. at 1. In addition, according to the government, allowing the prospective plaintiffs to join at this stage would “encourage ‘wait and see’ litigation tactics and undermine Rule 16(b)(4)’s purpose to keep courts in control of their dockets and avoid unnecessary delay.” See id. at 5-6.4 In response to

4

The government also argues that the joinder of 114 plaintiffs will cause undue

prejudice, but as discussed supra at 6-7, the Court does not agree. Regardless, as the government

explains, “prejudice to the Defendants is of little relevance in the absence of a showing of

diligence.” See Opp. at 6; United States v. Kellogg Brown & Root Servs., Inc., 285 F.R.D.

at 136.

8

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 9 of 10

the government’s opposition, plaintiffs do not attempt to demonstrate “good cause” for adding the additional 114 individuals almost twelve years after the deadline for doing so. Instead, they reassert that the addition of these prospective plaintiffs would cause no undue prejudice to the defendants for the same reasons that the Court previously found that the addition of the fifteen prospective plaintiffs would not prejudice the defendants. See Reply at 1-3. In so arguing, plaintiffs propose methods through which the Court may mitigate the potential flood of additional plaintiffs should it choose to allow the instant 114 movants to join the case: certify the class or accept the moving counsel’s representation that they will not file further motions to join additional plaintiffs. See id. at 2.
The Court concludes that plaintiffs have failed to show good cause to justify the addition of 114 plaintiffs at this time. The plaintiffs have not even attempted to exemplify their diligence in complying with the court-ordered schedule. Nor have they indicated that any amended timeline has superseded Judge Roberts’ original Order. It is possible that there is a legitimate reason for the plaintiffs’ delay that might meet the good cause standard – potentially stemming from the complicated procedural history of this case or for other reasons. But without more explanation, the Court does not see why it should allow these 114 plaintiffs to join the case over the defendants’ objections.5 As the Court previously stated, it is “necessary to establish with greater certainty and finality which individuals may participate in this case as plaintiffs.” See May 3, 2018 Order at 1. A line must be drawn at some point because – as the government argues – it “need[s] a final and concrete understanding of the scope of [its] litigation risk.” See

5

Attached as exhibits to their Reply, plaintiffs submit documentation that

demonstrates that Larry Feazell – one of the 114 instant movants – previously communicated to

prior counsel his interest in joining the case. See Reply at 1 n.2 & Ex. 1. Without evidence that

he previously moved to join the case, the Court does not see a basis for distinguishing between

Mr. Feazell and the 113 other movants requesting the Court permit their joinder now.

9

Case 1:05-cv-00654-PLF Document 420 Filed 03/21/19 Page 10 of 10

Opp. at 6.6 Without a demonstration of good cause to overcome the requirements of the previous Scheduling Order almost twelve years after it was entered, the Court declines to exercise its discretion to allow 114 new plaintiffs to join this case at such a late stage.
Accordingly, it is hereby ORDERED that the plaintiffs’ motion [Dkt. No. 399] to join additional plaintiffs is DENIED WITHOUT PREJUDICE. SO ORDERED.

DATE: March 21, 2019

_______________________ PAUL L. FRIEDMAN United States District Judge

6

The 114 prospective plaintiffs – a subset of the 205 individuals who have

contacted plaintiffs’ counsel about joining the case – are those prospective plaintiffs who had

retained plaintiffs’ counsel at the time of the July 27, 2018 motion. See Reply at 2 n.3.

Plaintiffs’ counsel requests that those “91 individuals who contacted but did not retain

undersigned counsel prior to the briefing be given an opportunity to do so” if the Court grants

plaintiffs’ motion. See id. Although the Court need not decide this now, it will not entertain

future motions to join additional plaintiffs – including any of these 91 individuals – without a

separate and additional showing of good cause for admitting additional parties after the deadline

set by the Court’s July 16, 2018 scheduling order. See July 16, 2018 Minute Order (directing

plaintiffs to file their motion seeking to join additional individuals by July 27, 2018).

10

 
 Create an Alert for This Case on RECAP

APPEAL,MEDIATION,TYPE-H

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05-cv-00654-PLF

BREEN et al v. MINETA et al Assigned to: Judge Paul L. Friedman Case in other court: USCA-DC, 05-05371 Cause: 29:621 Job Discrimination (Age)
Plaintiff KATHLEEN A. BREEN

Date Filed: 03/31/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant
represented by Brian Christopher Corman COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (703) 408-4653 Email: bcorman@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Williamson Day , Jr. THE DAY LAW PRACTICE LLC 103 North Adams Street Suite 203 Rockville, MD 20850 (301) 762-2675 Fax: (844) 554-5506 Email: billday@daylawpractice.com TERMINATED: 07/06/2016

Daniel K. Gebhardt SOLOMON LAW FIRM, PLLC 1025 Connecticut Avenue, N.W., Suite 1000 WASHINGTON Washington, DC 20036 866-833-3529 Email: dgebhardt@fedemploylaw.com TERMINATED: 08/18/2016

Joseph D. Gebhardt The Law Offices of Gary M. Gilbert & Associates, P.C.

Plaintiff

1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Fax: (301) 608-0881 Email: jgebhardt@ggilbertlaw.com TERMINATED: 11/04/2016
Lenore Cooper Garon LAW OFFICE OF LENORE C. GARON. PLLC 2412 Falls Place Court Falls Church, VA 22043 (703) 534-6662 Fax: (703) 534-4448 Email: lenore@lenorecgaron.com
Mark A. Dann U.S. DEPARTMENT OF JUSTICE Civil Rights Division Educational Opportunities Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Suite 4300 Washington, DC 20530 (202) 305-1231 Fax: (202) 514-8337 Email: mark.dann@usdoj.gov TERMINATED: 05/23/2008
Shaylyn Capri Cochran COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408-3614 Fax: (202) 408-4699 Email: scochran@cohenmilstein.com TERMINATED: 01/28/2021
Valencia R. Rainey THE FORD LAW FIRM 506 9th Street, NW Washington, DC 20004 (301) 928-4939 Email: vrrainey@gmail.com TERMINATED: 07/20/2016

MILTON J. TORRES, III
Plaintiff RICHARD C. ANDERSON

represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)

Plaintiff RONALD J. CONSALVO
Plaintiff MARK JAFFE

Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt

Plaintiff DARRELL G. MOUNTS
Plaintiff JOHN O'CONNELL

(See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman

Plaintiff MICHAEL J. SHELDON

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Mark A. Dann

Plaintiff JERRY VANVACTER
Plaintiff ALL PLAINTIFFS

(See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 07/06/2016
Cori Morgan Cohen LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C.

1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Email: ccohen-efile@ggilbertlaw.com TERMINATED: 11/26/2019 ATTORNEY TO BE NOTICED
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Gary M. Gilbert GILBERT EMPLOYMENT LAW, P.C. 1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Fax: (301) 608-0881 Email: gary-efile@gelawyer.com ATTORNEY TO BE NOTICED
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Joseph M. Sellers COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408-4604 Fax: (202) 408-4699 Email: jsellers@cohenmilstein.com ATTORNEY TO BE NOTICED
Lenore Cooper Garon (See above for address)
Linda Anton Kincaid GILBERT EMPLOYMENT LAW, P.C. 1100 Wayne Ave Suite 900 Silver Spring, MD 20910 301-608-0880 Email: lkincaid-efile@gelawyer.com ATTORNEY TO BE NOTICED

Lisa R. Sandoval LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C. 1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Fax: (301) 608-0881 Email: lsandoval@ggilbertlaw.com TERMINATED: 11/03/2016 PRO HAC VICE
Mark A. Dann (See above for address) TERMINATED: 05/23/2008
Meghan Alexis Droste WILKENFELD, HERENDEEN & ATKINSON 5614 Connecticut Avenue, NW Number 342 Washington, DC 20015-2604 202-765-2253 Fax: 202-600-2792 Email: meghan@wilkenfeldlaw.com TERMINATED: 06/30/2017
Michal Shinnar LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C. 1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Email: mshinnar-efile@gelawyer.com ATTORNEY TO BE NOTICED
Shannon C Leary GILBERT EMPLOYMENT LAW, PC 1100 Wayne Ave Suite 900 Silver Spring, MD 20910 (301) 608-0880 Fax: (301) 608-0881 Email: sleary-efile@gelawyer.com ATTORNEY TO BE NOTICED

Plaintiff GLENN REFFNER
Plaintiff DONNA DODSON
Plaintiff

Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
Stephanie Marie Herrera GILBERT EMPLOYMENT LAW, P.C. 1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Fax: (301) 608-0881 Email: sherrera-efile@gelawyer.com TERMINATED: 05/09/2018
Valencia R. Rainey (See above for address) TERMINATED: 07/20/2016
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel K. Gebhardt (See above for address) TERMINATED: 08/18/2016
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by DONNA DODSON 7499 Hidden Glen Drive Amherst, OH 44001-2575 (440) 988-8880 PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021

STEVEN TANGEN
Plaintiff ELDON D. TAYLOR, JR.
Plaintiff JEFFREY G. TRABOLD

represented by STEVEN TANGEN 19365 Cypress Ridge Terrace #312 Landsdowne, VA 20176 (703) 858-3673 Email: stangen@peoplepc.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by ELDON D. TAYLOR, JR. 4323 N.E. SECOND CT. Renton, WA 98059 (425) 988-3616 Email: rondatango@aol.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by JEFFREY G. TRABOLD 1937 Fairways Dr. NE Kalkaska, MI 49646 (231) 258-5494 Email: jtrabold2@att.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address)

Plaintiff ROBERT PEDRAZA
Plaintiff FRANCES T. SIEDLER TERMINATED: 02/13/2009 Plaintiff SHARON H. LANGE
Plaintiff JOHN LAZOR

TERMINATED: 01/28/2021
represented by ROBERT PEDRAZA 6812 Canyon Run Dr. El Paso, TX 79912 (206) 937-4009 Email: papa-zee@hotmail.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by FRANCES T. SIEDLER 37 New Castle Lane Concord Township, OH 44060 (440) 867-2326 Email: frannynd62@yahoo.com PRO SE
represented by SHARON H. LANGE 144 Southmoor Cir Oxford, AL 36203 (256) 835-5830 Email: Lngpepp@aol.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by JOHN LAZOR 14856 SW 159 CT Miami, FL 33196 (305) 971-6198

Plaintiff WILLIAM LIEBENO
Plaintiff FRED E. LIPPI
Plaintiff BARBARA MCINERNEY

Email: JohnLazor@bellsouth.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by WILLIAM LIEBENO 6705 Hewitt North Richland Hills, TX 76180 (817) 479-6630 Email: wliebeno@yahoo.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by FRED E. LIPPI 172 Chestnut Street San Carlos, CA 94070 (650) 591-3130 Email: FMLippi@comcast.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by BARBARA MCINERNEY 5525 Grace Avenue

Plaintiff REBECCA S. NEDDERMAN
Plaintiff JULIA M. GREENWAY
Plaintiff

St. Louis, MO 63116 (314) 832-7418 Email: brbmcin@att.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by REBECCA S. NEDDERMAN 105 Wynstay Avenue Valley Park, MO 63088 (636) 861-6093 Email: beccadott@charter.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by JULIA M. GREENWAY 9904 Hemlock Woods Lane Burke, VA 22015 (703) 250-2426 Email: Julia0701@msn.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021

MARTHA L. GRIMSLEY
Plaintiff GEORGIANNE HANJOUL
Plaintiff RALPH E. KERSCHNER, JR.

represented by MARTHA L. GRIMSLEY 125 Valley Street DeRidder, LA 70634 (337) 462-3199 Email: grimsley@beci.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address)
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by RALPH E. KERSCHNER, JR. 3916 Evans Lane Oxford, AL 36203 (256) 835-2151 Email: debnralphk@cs.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021

Plaintiff NORMAN B. BUCKALLEW
Plaintiff ROY M. CARROLL
Plaintiff JEAN K. CARUSO

represented by NORMAN B. BUCKALLEW 3519 Kites Landing Road Florien, LA 71429 (318) 586-0044 Email: normanbuckallew@hughes.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by ROY M. CARROLL 120 Rockwell Dr Riverside, AL 35135 (205) 338-6290 Email: rhino673@coosahs.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph D. Gebhardt (See above for address) TERMINATED: 11/04/2016
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran

Plaintiff KENNETH C. CURRIER
Plaintiff TYE C. BJORKMAN TERMINATED: 02/13/2009 Plaintiff G. PETER BERGGREN
Plaintiff ANGELA B. BOWMAN

(See above for address) TERMINATED: 01/28/2021
represented by KENNETH C. CURRIER 11220 SW 130 Avenue Miami, FL 33186 (305) 380-7389 Email: kcurrier@bellsouth.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by TYE C. BJORKMAN P.O. Box 2751 Edgewood, NM 87015 (505) 281-3411 Email: bjtye1on@msn.com PRO SE
represented by G. PETER BERGGREN 435 La Paz Street Dewey, AZ 86327 (928) 277-3818 Email: peter.berggren@gmail.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by ANGELA B. BOWMAN P.O. BOX 303 Choccolocco, AL 36254

Plaintiff KEVIN C. HOYT
Plaintiff TOM DOMINGO
Plaintiff FRANK MATKINS

(256)343-6075 Email: bowman123@cableone.net PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by KEVIN C. HOYT 1441 Taft Avenue Chino Valley, AZ 86323 (928) 925-3429 Email: KevinCHoyt@gmail.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by TOM DOMINGO RR2 Box 228 Gilman Road Elkins, WV 26241 (304) 636-3107 PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by FRANK MATKINS 1101 Roundhouse Drive

Plaintiff JANICE I. WILSON formerly known as JANICE TEED
Plaintiff JIM G. WILKERSON
Plaintiff CHARLES E. HOLLAND

Saginaw, TX 76131 (817) 306-9043 Email: jhoyce29@aol.com PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by JANICE I. WILSON 12706 Amor Street Dewey, AZ 86327 (208) 571-2523 PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by JIM G. WILKERSON PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by CHARLES E. HOLLAND 20961 Albion Lane Ashburn, VA 20147 (662) 417-6493 PRO SE

Plaintiff WILLIAM R. MADDEN
Plaintiff HENRY ONTIVEROS
Plaintiff TIMOTHY HARVEY TERMINATED: 02/18/2009 Plaintiff JODY KALER EXECUTOR as to the Estate of Denise

Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by WILLIAM R. MADDEN 1614 W Northshore Drive Mahomet, IL 61853 (217) 590-4738 PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by HENRY ONTIVEROS P.O. Box 124 Roanoke, TX 76262 (325) 374-5832 PRO SE
Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address)

Jones
Plaintiff JAMES A. FANCHER TERMINATED: 05/09/2016 Plaintiff DIANA DIEHL Personal Representative of the Estate of Kevin S. Diehl
Plaintiff CAROL J. HOLODICK Personal Representative of the Estate of Carol J. Holodick
Plaintiff ESTATE OF HERBERT W. NAGEL through his Personal Representative, Catherine Nagel Plaintiff HECTOR HADDOW Personal Representative for the Estate of Lisa Haddow Plaintiff NICOLE D. MCCALL Personal Representative for the Estate of Warren McCall Plaintiff CAROL HAGGARD EVANS Personal Representative for the Estate of William Evans

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Brian Christopher Corman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Capri Cochran (See above for address) TERMINATED: 01/28/2021
represented by Linda Anton Kincaid (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Anton Kincaid (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Anton Kincaid (See above for address) ATTORNEY TO BE NOTICED

Plaintiff BARBARA THOMPSON Ap Personal Representative of the Estate of Stephen Thompson
V. Defendant NORMAN Y. MINETA Secretary, U.S. Department of Transportation TERMINATED: 02/17/2009

represented by Adam D. Kirschner U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305-9265 Fax: (202) 616-8470 Email: adam.kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin M. Tomlinson U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 480 Ben Franklin Station Washington, DC 20044 (202) 353-4556 Email: martin.m.tomlinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian G. Kennedy U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514-3357 Fax: (202) 616-8470 Email: brian.kennedy@usdoj.gov TERMINATED: 05/31/2017
Elizabeth L. Kade U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616-8491

Fax: (202) 616-8470 Email: elizabeth.l.kade@usdoj.gov TERMINATED: 01/22/2018
Lisa Zeidner Marcus U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 700 Grant St. Suite 4000 Pittsburgh, PA 15219 (202) 514-3336 Fax: (202) 616-8470 Email: lisa.marcus@usdoj.gov
Marcia Berman UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Room 7132 Washington, DC 20530 (202) 514-2205 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov TERMINATED: 12/02/2016
Tim H. Nusraty DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, NW Room 7134 Washington, DC 20530 (202) 514-4805 Fax: (202) 615-8470 Email: timothy.nusraty@usdoj.gov TERMINATED: 12/02/2016
William B. Jaffe OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 Fourth Street, NW Washington, DC 20001 (202) 724-6602 Fax: (202) 741-8894

Defendant
MARION C. BLAKEY Administrator, Federal Aviation Administration

Email: william.jaffe@dc.gov TERMINATED: 12/02/2016
represented by Adam D. Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian G. Kennedy (See above for address) TERMINATED: 05/31/2017
Elizabeth L. Kade (See above for address) TERMINATED: 01/22/2018
Joshua Edward Gardner UNITED STATES DEPARTMENT OF JUSTICE Civil Division Federal Programs Branch
1100 L Street, N.W. Washington, DC 20005 (202) 305-7583 Fax: (202) 616-8470 Email: joshua.e.gardner@usdoj.gov ATTORNEY TO BE NOTICED
Kari E. D'Ottavio U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-305-0568 Email: kari.e.d'ottavio@usdoj.gov TERMINATED: 08/21/2020
Lisa Zeidner Marcus (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) TERMINATED: 12/02/2016
Martin M. Tomlinson (See above for address)

Defendant RAY H. LAHOOD Secretary of Transportation TERMINATED: 05/26/2017
Defendant ELAINE CHAO Secretary, U.S. Department of Transportation

ATTORNEY TO BE NOTICED
Tim H. Nusraty (See above for address) TERMINATED: 12/02/2016
William B. Jaffe (See above for address) TERMINATED: 12/02/2016
represented by Adam D. Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Zeidner Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin M. Tomlinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian G. Kennedy (See above for address) TERMINATED: 05/31/2017
Elizabeth L. Kade (See above for address) TERMINATED: 01/22/2018
represented by Adam D. Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian G. Kennedy (See above for address) TERMINATED: 05/31/2017
Elizabeth L. Kade (See above for address) TERMINATED: 01/22/2018
Joshua Edward Gardner

V.
Interested Party
JESSE A. CLARK TERMINATED: 02/13/2009

(See above for address) ATTORNEY TO BE NOTICED
Kari E. D'Ottavio (See above for address) TERMINATED: 08/21/2020
Lisa Zeidner Marcus (See above for address) ATTORNEY TO BE NOTICED
Martin M. Tomlinson (See above for address) ATTORNEY TO BE NOTICED
represented by JESSE A. CLARK P.O. Box 661 Dewey, AZ 86327 PRO SE

Date Filed 03/31/2005
03/31/2005 04/19/2005 06/24/2005
06/29/2005
07/11/2005

# Docket Text
1 COMPLAINT against NORMAN Y. MINETA, MARION C. BLAKEY (Filing fee $ 250) filed by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4) (jf, ) (Entered: 04/01/2005)
SUMMONS (4) Issued as to NORMAN Y. MINETA, MARION C. BLAKEY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 04/01/2005)
2 NOTICE of Appearance by Marcia Berman on behalf of all defendants (Berman, Marcia) (Entered: 04/19/2005)
3 FIRST AMENDED CLASS ACTION COMPLAINT against NORMAN Y. MINETA, MARION C. BLAKEYfiled by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO.(nmw, ) (Entered: 06/27/2005)
4 MOTION to Certify Class by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (jf, ). (Entered: 06/29/2005)
5 MOTION to Stay Plaintiffs' Motion for Class Certification by NORMAN Y.

07/11/2005 07/19/2005 07/25/2005 07/26/2005 07/26/2005
07/27/2005

MINETA. (Attachments: # 1 Exhibit)(Berman, Marcia) Modified on 7/12/2005 (jf, ). (Entered: 07/11/2005)
6 MOTION for Extension of Time to respond to plaintiffs' motion for class certification by NORMAN Y. MINETA, MARION C. BLAKEY. (to view document, click on link #5) (jf, ) (Entered: 07/12/2005)
7 NOTICE of Filing by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO re 4 MOTION to Certify Class (Attachments: # 1 Motion for Class Certification in Different Font)(Day, Charles) (Entered: 07/19/2005)
8 Memorandum in opposition to motion re 5 Stay of Class Certification filed by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 07/25/2005)
9 MOTION for Leave to File Excess Pages by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 07/26/2005)
10 MOTION for Preliminary Injunction by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Exhibit 26# 28 Exhibit 27# 29 Exhibit 28# 30 Exhibit 29# 31 Exhibit 30# 32 Exhibit 31# 33 Exhibit 32# 34 Exhibit 33# 35 Exhibit 34# 36 Exhibit 35# 37 Exhibit 36# 38 Exhibit 37# 39 Exhibit 38# 40 Exhibit 39# 41 Exhibit 40# 42 Exhibit 41# 43 Exhibit 42# 44 Exhibit 43# 45 Exhibit 44# 46 Exhibit 45# 47 Exhibit 46# 48 Exhibit 47# 49 Exhibit 48# 50 Exhibit 49# 51 Exhibit 50# 52 Exhibit 51# 53 Exhibit 52# 54 Exhibit 53# 55 Exhibit 54# 56 Exhibit 55# 57 Exhibit 56# 58 Exhibit 57# 59 Exhibit 58# 60 Exhibit 59# 61 Exhibit 60# 62 Exhibit 61# 63 Exhibit 62# 64 Exhibit 63# 65 Exhibit 64)(Gebhardt, Joseph) (Entered: 07/26/2005)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 06/27/2005., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to NORMAN Y. MINETA served on 6/27/2005, answer due 8/26/2005; MARION C. BLAKEY served on 6/27/2005, answer due 8/26/2005., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. NORMAN Y. MINETA served on 6/27/2005, answer due 8/26/2005; MARION C. BLAKEY served on 6/27/2005, answer due 8/26/2005

07/28/2005 08/01/2005 08/01/2005 08/03/2005
08/04/2005
08/05/2005 08/05/2005 08/05/2005 08/05/2005
08/05/2005 08/05/2005 08/08/2005
08/23/2005

(Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Gebhardt, Joseph) (Entered: 07/27/2005)
12 NOTICE Joint Proposed Briefing Schedule for Plaintiffs' Motion for Preliminary Injunction by NORMAN Y. MINETA, MARION C. BLAKEY (Berman, Marcia) (Entered: 07/28/2005)
13 Memorandum in opposition to motion re 9 for leave to file excess pages filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Text of Proposed Order)(Berman, Marcia) (Entered: 08/01/2005)
14 REPLY to opposition to motion re 5 to stay plaintiffs' motion for class certification filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Berman, Marcia) (Entered: 08/01/2005)
15 REPLY to opposition to motion re 9 Leave to File Excess Pages filed by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Day, Charles) (Entered: 08/03/2005)
MINUTE ORDER: Counsel for the parties are hereby directed to appear for a status conference regarding the proposed briefing schedule 12 on Monday, August 8, 2005 at 11:00 a.m. Issued by Judge Richard W. Roberts on 8/4/2004. (lcrwr3) (Entered: 08/04/2005)
NOTICE of Hearing: Status Conference set for 8/8/2005 11:00 AM in Courtroom 9 before Judge Richard W. Roberts. (zlin, ) (Entered: 08/05/2005)
NOTICE of Hearing: Status Conference set for 8/8/2005 11:00 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 08/05/2005)
16 NOTICE of Appearance by Tim H. Nusraty on behalf of NORMAN Y. MINETA, MARION C. BLAKEY (Nusraty, Tim) (Entered: 08/05/2005)
17 MOTION for Leave to File Supplement to Plaintiffs' Application for Preliminary Injunction by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 08/05/2005)
18 NOTICE of Appearance by Charles W. Day, Jr on behalf of all plaintiffs (Day, Charles) (Entered: 08/05/2005)
19 NOTICE of Appearance by Mark A. Dann on behalf of all plaintiffs (Dann, Mark) (Entered: 08/05/2005)
Minute Entry for proceedings held before Judge Richard W. Roberts : Status Conference held on 8/8/2005. Motion of plaintiff to supplement motion for preliminary injunction granted; Response due by 8/23/2005 Hearing set for 9/1/2005 03:30 PM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott Wallace.) (lin, ) (Entered: 08/09/2005)
20 NOTICE of Appearance by Brian G. Kennedy on behalf of all defendants (Kennedy, Brian) (Entered: 08/23/2005)

08/23/2005 08/23/2005
08/24/2005
08/24/2005 08/30/2005

21 Unopposed MOTION for Leave to File Excess Pages by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Text of Proposed Order Proposed Order)(Berman, Marcia) (Entered: 08/23/2005)
22 Memorandum in opposition to motion re 10 filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Affidavit Kansier Decl# 2 Affidavit Courain Decl# 3 Affidavit Sheridan Decl# 4 Exhibit Blakey Remarks# 5 Exhibit June 12 DOT Statement# 6 Exhibit 2000 OIG Report# 7 Affidavit Reyna Decl# 8 Exhibit 2003 OIG Report# 9 Exhibit 1998 OIG Report# 10 Exhibit NATCA v. Mineta Opinion# 11 Exhibit Inherently Governmental Determination# 12 Exhibit 1996 OIG Report# 13 Exhibit 1998 Core Group Report# 14 Exhibit President's Mgmt Agenda# 15 Exhibit 2003 Competitive Sourcing Document# 16 Affidavit Hennigan Decl.# 17 Exhibit GT Feasibility Ex Q 1 of 3# 18 Exhibit GT Feasibility Ex Q 2 of 3# 19 Exhibit GT Feasibility Ex Q 3 of 3# 20 Exhibit Bertram Memo# 21 Exhibit Brown Memo# 22 Exhibit Blakey Memo# 23 Exhibit NAATS Challenge# 24 Exhibit FAA Response to NAATS Challenge# 25 Exhibit DOT Letter to Pike# 26 Affidavit DeGaetano Decl# 27 Exhibit Neill ODRA Opinion Ex Y (1 of 3)# 28 Exhibit Neill ODRA Opinion Ex Y (2 of 3)# 29 Exhibit Neill ODRA Opinion Ex Y (3 of 3)# 30 Exhibit July 2005 FAA Order# 31 Affidavit Williams Decl.# 32 Affidavit Washington Decl.# 33 Affidavit Blakey Decl)(Berman, Marcia) (Entered: 08/23/2005)
23 MOTION to Dismiss or in the alternative for Summary Judgment by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Text of Proposed Order Proposed Order Dismissal# 2 Text of Proposed Order Proposed Order SJ# 3 Affidavit Kansier Decl# 4 Affidavit Courain Decl# 5 Affidavit Sheridan Decl# 6 Exhibit Blakey Remarks# 7 Exhibit June 12 DOT Statement# 8 Exhibit 2000 OIG Report# 9 Affidavit Reyna Decl# 10 Exhibit 2003 OIG Report# 11 Exhibit 1998 OIG Report# 12 Exhibit NATCA v. Mineta Opinion# 13 Exhibit Inherently Governmental Determination# 14 Exhibit 1996 OIG Report# 15 Exhibit 1998 Core Group Report# 16 Exhibit President's Mgmt Agenda# 17 Exhibit 2003 Competitive Sourcing Document# 18 Affidavit Hennigan Decl# 19 Exhibit GT Feasibility Study Ex Q (1 of 3)# 20 Exhibit GT Feasibility Study Ex Q (2 of 3)# 21 Exhibit GT Feasibility Study Ex Q (3 of 3)# 22 Exhibit Bertram Memo# 23 Exhibit Brown Memo# 24 Exhibit Blakey Memo# 25 Exhibit NAATS Challenge# 26 Exhibit FAA Response to NAATS Challenge# 27 Exhibit DOT Letter to Pike# 28 Affidavit DeGaetano Decl# 29 Exhibit Neill ODRA Opinion Ex Y (1 of 3)# 30 Exhibit Neill ODRA Opinion Ex Y (2 of 3)# 31 Exhibit Neill ODRA Opinion Ex Y (3 of 3)# 32 Exhibit July 2005 FAA Order# 33 Affidavit Williams Decl# 34 Affidavit Washington Decl# 35 Affidavit Blakey Decl)(Berman, Marcia) (Entered: 08/24/2005)
24 NOTICE of Filing corrected exhibits by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Exhibit # 2 Exhibit)(Berman, Marcia) (Entered: 08/24/2005)
25 MOTION To Add Plaintiffs by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph)

09/01/2005
09/06/2005 09/08/2005 09/09/2005 09/13/2005 09/15/2005 09/16/2005
09/26/2005 09/28/2005

(Entered: 08/30/2005)
Minute Entry for proceedings held before Judge Richard W. Roberts : Motion Hearing held on 9/1/2005 re 10 MOTION for Preliminary Injunction filed by MILTON J. TORRES, III, JOHN O'CONNELL,, KATHLEEN A. BREEN,, RICHARD C. ANDERSON,, RONALD J. CONSALVO,, MARK JAFFE,, DARRELL G. MOUNTS,, MICHAEL J. SHELDON,, JERRY VANVACTER,. (Court Reporter Scott Wallace.) (lin, ) (Entered: 09/06/2005)
26 NOTICE of Filing of Supplemental Exhibits by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO re Motion Hearing, (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Day, Charles) (Entered: 09/06/2005)
28 TRANSCRIPT of Motion Hearing held on September 1, 2005 before Judge Richard W. Roberts. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 09/12/2005)
27 RESPONSE to Plaintiffs' Notice of Supplemental Exhibits filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Defs' Ex. DD -June 2003 slide presentation# 2 Exhibit Ex. EE -- Jan 2003 slide presentation# 3 Exhibit Ex. FF --Blakey Prepared Remarks# 4 Exhibit EX. GG -- NAATS Statement Re Rapidly Aging Workforce)(Kennedy, Brian) (Entered: 09/09/2005)
29 RESPONSE to Plaintiffs' Motion to Add Plaintiffs 25 filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Nusraty, Tim) . (Entered: 09/13/2005)
30 REPLY to 27 Defendant's Response to Plaintiffs' Notice of Supplemental Filing filed by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Day, Charles) (Entered: 09/15/2005)
31 Memorandum in opposition to motion re 23 to dismiss or, in the alternative, for summary judgment filed by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Response to Statement of Material Facts# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Text of Proposed Order)(Day, Charles) (Entered: 09/16/2005)
32 REPLY to opposition to motion re 23 filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Defs' Ex GG -- Determination of Secretary Mineta re air traffic control)(Kennedy, Brian) (Entered: 09/26/2005)
33 NOTICE of Filing by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO re 32 Reply to opposition to Motion (Attachments: # 1 Exhibit 1 Letter from Charles W. Day, Jr. to Brian G. Kennedy)(Day, Charles) (Entered: 09/28/2005)

09/30/2005 10/03/2005
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01/27/2006 01/30/2006
02/08/2006
02/08/2006

34 MEMORANDUM OPINION AND ORDER denying plaintiffs' motion for preliminary injunction. Signed by Judge Richard W. Roberts on 9/30/2005. (lcrwr3) (Entered: 09/30/2005)
35 NOTICE OF INTERLOCUTORY APPEAL as to 34 Memorandum & Opinion entered on 09/30/05 by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. Filing fee $ 255, receipt number 138498. (jf, ) (Entered: 10/04/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 35 Notice of Interlocutory Appeal, (jf, ) (Entered: 10/04/2005)
USCA Case Number 05-5371 for 35 Notice of Interlocutory Appeal, filed by MILTON J. TORRES, III, JOHN O'CONNELL,, KATHLEEN A. BREEN,, RICHARD C. ANDERSON,, RONALD J. CONSALVO,, MARK JAFFE,, DARRELL G. MOUNTS,, MICHAEL J. SHELDON,, JERRY VANVACTER,. (lc, ) (Entered: 10/06/2005)
36 RESPONSE to Plaintiffs' Notice of Filing filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Defs' Ex.HH, FAA letter to GAO re savings estimates)(Kennedy, Brian) (Entered: 10/11/2005)
37 NOTIFICATION OF SUPPLEMENTAL AUTHORITY by NORMAN Y. MINETA, MARION C. BLAKEY (Kennedy, Brian) (Entered: 12/05/2005)
38 MOTION to Withdraw Plaintiffs Larry D. Urban and Steven Szymanski by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)(Day, Charles) (Entered: 01/25/2006)
39 MOTION to Withdraw Plaintiff Paul Carhoon by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, KATHLEEN A. BREEN, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Day, Charles) (Entered: 01/27/2006)
40 ERRATA to Motion to Withdraw Plaintiff Paul Carhoon by MARK JAFFE, DARRELL G. MOUNTS, JOHN O'CONNELL, MICHAEL J. SHELDON, JERRY VANVACTER, KATHLEEN A. BREEN, MILTON J. TORRES, III, RICHARD C. ANDERSON, RONALD J. CONSALVO. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 01/30/2006)
41 RESPONSE to Motion to Withdraw of Plaintiff Paul Cahoon 39 filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Ex. 1 (Agency Motion to Dismiss Before MSPB)# 2 Exhibit Ex. 2 (Mr. Cahoon's Filing Before MSPB)# 3 Exhibit Ex. 3 (Agency Jurisdictional Reply Before MSPB)) (Kennedy, Brian) Modified on 2/13/2006 (ks, ). (Entered: 02/08/2006)
42 RESPONSE to Motion to Withdraw of Plaintiffs Larry D. Urban and Steven Szymanski 38 filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Kennedy, Brian) Modified on 2/13/2006 (ks, ). (Entered: 02/08/2006)

02/28/2006
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09/01/2006 01/08/2007
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01/23/2007 01/31/2007 02/05/2007
02/05/2007

43 MANDATE of USCA (certified copy)It is hereby ordered that the order to show cause be discharged; It is further ordered that the District Court's September 30, 2005 order denying appellant's motion for preliminary injunction be affirmed; USCA#05-5371 (jsc) (Entered: 03/09/2006)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' motions 38 and 39 to withdraw certain individuals as plaintiffs be, and hereby are, GRANTED. Larry D. Urban, Steven Szymanski & Paul Cahoon are withdrawn as plaintiffs. Issued by Judge Richard W. Roberts on 3/31/06. (EHS) (Entered: 03/31/2006)
44 ORDER granting in part 25 Motion to add plaintiffs . Signed by Judge Richard W. Roberts on 3/30/06. (lin, ) (Entered: 03/31/2006)
MINUTE ORDER: It is hereby ORDERED that defendants' motion 5 to stay ruling on class certification or for an extension of time to respond be, and hereby is, DENIED as moot. Issued by Judge Richard W. Roberts on 8/28/06. (EHS) (Entered: 08/28/2006)
45 MOTION for Hearing /Status Conference by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 09/01/2006)
46 MEMORANDUM OPINION AND ORDER denying defendants' motion 23 to dismiss or in the alternative for summary judgment, and granting plaintiffs' motion 45 for status conference. Signed by Judge Richard W. Roberts on 1/8/2007. (EHS) (Entered: 01/08/2007)
47 ORDER SETTING INTITIAL SCHEDULING CONFERENCE. See order for details. Signed by Judge Richard W. Roberts on 1/8/2007. (EHS) (Entered: 01/08/2007)
Set/Reset Hearings: Status Conference set for 2/7/2007 09:30 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 01/09/2007)
48 Unopposed MOTION for Extension of Time to File Answer re 3 Amended Complaint, by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Text of Proposed Order)(Berman, Marcia) (Entered: 01/22/2007)
MINUTE ORDER: It is hereby ORDERED that defendants' consent motion 48 for extension of time to answer be, and hereby is, GRANTED. Answer is due February 5, 2007. Issued by Judge Richard W. Roberts on 1/23/07. (EHS) (Entered: 01/23/2007)
Set/Reset Deadlines: Answer due by 2/5/2007. (lin, ) (Entered: 01/23/2007)
49 MEET AND CONFER STATEMENT. (Day, Charles) (Entered: 01/31/2007)
50 ANSWER to Amended Complaint by NORMAN Y. MINETA, MARION C. BLAKEY. Related document: 3 Amended Complaint, filed by MILTON J. TORRES, III, JOHN O'CONNELL,, KATHLEEN A. BREEN,, RICHARD C. ANDERSON,, RONALD J. CONSALVO,, MARK JAFFE,, DARRELL G. MOUNTS,, MICHAEL J. SHELDON,, JERRY VANVACTER,.(Berman, Marcia) (Entered: 02/05/2007)
51 Consent MOTION to Withdraw Jury Demand Without Prejudice by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 02/05/2007)

02/07/2007
02/09/2007
02/09/2007
02/09/2007 02/13/2007 03/15/2007 03/21/2007 03/26/2007 04/01/2007 04/13/2007 05/08/2007 05/08/2007 05/08/2007 05/08/2007

Minute Entry for proceedings held before Judge Richard W. Roberts : Scheduling Conference held on 2/7/2007. Motion to certify class denied without prejudice; Discovery due by 2/7/2008. Dispositive Motions due by 4/8/2008. Status Conference set for 2/8/2008 09:15 AM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott Wallace.) (lin, ) (Entered: 02/07/2007)
52 **** ENTERED IN ERROR **** WILL BE ENTERED AGAIN BELOW *** SCHEDULING ORDER: All discovery to close February 7, 2008; post-discovery status conference set for February 8, 2008 at 9:15 a.m. See order for additional deadlines. Signed by Judge Richard W. Roberts on 2/7/07. (EHS) Modified on 2/9/2007 (EHS). (Entered: 02/09/2007)
53 SCHEDULING ORDER: All discovery to close February 7, 2008; post-discovery status conference set for February 8, 2008 at 9:15 a.m. See order for additional deadlines. Signed by Judge Richard W. Roberts on 02/07/07. (EHS) (Entered: 02/09/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 52 Scheduling Order, was entered in error and has been re-entered at docket 53 . (EHS) (Entered: 02/09/2007)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 51 to withdraw jury demand without prejudice be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 2/13/2007. (EHS) (Entered: 02/13/2007)
54 NOTICE by Consent of Alteration to Deadline by ALL PLAINTIFFS (Dann, Mark) (Entered: 03/15/2007)
55 MOTION for Protective Order by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Jaffe, William) (Entered: 03/21/2007)
56 PROTECTIVE ORDER signed by Judge Richard W. Roberts on March 26, 207, setting forth procedures for handling confidential material; allowing designated material to be filed under seal (jwd) (Entered: 03/28/2007)
57 NOTICE of Appearance by Lenore Cooper Garon on behalf of all plaintiffs (Garon, Lenore) (Entered: 04/01/2007)
58 NOTICE of Extension of Time to Respond to Discovery Requests by ALL PLAINTIFFS (Day, Charles) (Entered: 04/13/2007)
59 NOTICE of Filing of Praecipe by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Dann, Mark) (Entered: 05/08/2007)
60 Consent MOTION to Withdraw Voluntarily 17 Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Dann, Mark) (Entered: 05/08/2007)
61 SUGGESTION OF DEATH Upon the Record as to Plaintiff Larry W. Reid and Motion to Dismiss by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)(Dann, Mark) (Entered: 05/08/2007)
62 NOTICE of Filing of Proposed Order by ALL PLAINTIFFS re 60 Consent MOTION to Withdraw Voluntarily 17 Plaintiffs (Dann, Mark) (Entered: 05/08/2007)

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63 MOTION for Joinder by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order 1# 4 Text of Proposed Order 2)(Gebhardt, Joseph) Modified on 5/9/2007 (jf, ). (Entered: 05/08/2007)
64 MOTION for Joinder To Reinstate Former Plaintiff Steven C. Szymanski by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 05/08/2007)
65 MOTION to Intervene by ALL PLAINTIFFS. (to view document, click on link # 63 ) (jf, ) (Entered: 05/09/2007)
66 NOTICE of Filing of Praecipe by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 05/15/2007)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' suggestion of death and consent motion 61 to dismiss decedent from this action, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 5/21/2007. (EHS) (Entered: 05/21/2007)
67 ORDER granting 60 Motion for voluntary dismissal of 17 plaintiffs.. Signed by Judge Richard W. Roberts on 5/18/07. (lin, ) (Entered: 05/22/2007)
68 Unopposed MOTION for Extension of Time to File Response/Reply as to 63 MOTION for Joinder or in the Alternative, to Intervene, 64 MOTION for Joinder To Reinstate Former Plaintiff Steven C. Szymanski by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Kennedy, Brian) (Entered: 05/22/2007)
MINUTE ORDER: It is hereby ORDERED that defendants' unopposed motion 68 for more time to file their response re plaintiff's motions 63 , 64 and 65 for joinder or to intervene, and to reinstate former plaintiff Szymanski, be, and hereby is, GRANTED. The response is due by 6/1/2007. Issued by Judge Richard W. Roberts on 5/23/07. (EHS) (Entered: 05/23/2007)
Set/Reset Deadlines: Responses due by 6/1/2007 (lin, ) (Entered: 05/24/2007)
69 NOTICE of Filing by ALL PLAINTIFFS (Day, Charles) (Entered: 05/31/2007)
70 Memorandum in opposition to re 63 MOTION for Joinder or in the Alternative, to Intervene, 64 MOTION for Joinder To Reinstate Former Plaintiff Steven C. Szymanski, 65 MOTION to Intervene filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Jaffe, William) (Entered: 06/01/2007)
71 MOTION to Withdraw as Attorney for 714 Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3 (Notice to Plaintiffs)# 4 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 06/08/2007)
72 REPLY to opposition to motion re 63 MOTION for Joinder or in the Alternative, to Intervene, 64 MOTION for Joinder To Reinstate Former Plaintiff Steven C. Szymanski filed by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 06/11/2007)
73 NOTICE of Service by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 06/13/2007)
74 Consent MOTION for Protective Order by ALL PLAINTIFFS (Attachments: # 1 Protective Order# 2 Acknowledgment Form)(Gebhardt, Joseph) (Entered:

06/13/2007 06/14/2007 06/22/2007
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06/13/2007)
75 NOTICE of Service Regarding Discovery by ALL PLAINTIFFS (Day, Charles) (Entered: 06/13/2007)
76 Consent MOTION to Withdraw Plaintiff Paul E. Cording by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)(Dann, Mark) (Entered: 06/14/2007)
77 Memorandum in opposition to re 71 MOTION to Withdraw as Attorney for 714 Plaintiffs filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Def. Ex. 1: Gebhardt Privilege Claim)(Kennedy, Brian) (Entered: 06/22/2007)
78 MOTION to Bifurcate by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Exhibit Def. Ex. 1 -- Gebhardt Privilege Claim# 2 Text of Proposed Order)(Kennedy, Brian) (Entered: 06/22/2007)
79 NOTICE of withdraw as plaintiff by KEVIN R. LARKIN. (jf, ). (Entered: 06/25/2007)
80 Consent MOTION for Extension of Time to File Response/Reply as to 71 MOTION to Withdraw as Attorney for 714 Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 06/26/2007)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 80 for extension of time to file a reply re their motion 71 to Withdraw as Attorney for 714 Plaintiffs be, and hereby is, GRANTED. Reply is due by 7/6/2007. Issued by Judge Richard W. Roberts on 6/29/2007. (EHS) (Entered: 06/29/2007)
81 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Judge Richard W. Roberts on 6/28/07. (lin, ) Additional attachment(s) added on 7/2/2007 (lin, ). (Entered: 06/29/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 81 Protective Order was entered in error as the wrong attachment The order has been replaced on the docket. (lin, ) (Entered: 07/02/2007)
Set/Reset Deadlines: Replies due by 7/6/2007. (lin, ) (Entered: 07/03/2007)
82 Consent MOTION for Extension of Time to File Response/Reply as to 78 MOTION to Bifurcate, 71 MOTION to Withdraw as Attorney for 714 Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 07/05/2007)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 82 for extension of time to file reply re 71 MOTION to Withdraw as Attorney for 714 Plaintiffs, and to file response re 78 MOTION to Bifurcate be, and hereby is, GRANTED. The reply and response are due by 7/13/2007. Issued by Judge Richard W. Roberts on 7/9/07. (EHS) (Entered: 07/09/2007)
Set/Reset Deadlines: Responses due by 7/13/2007,Replies due by 7/13/2007. (zlin, ) (Entered: 07/10/2007)
83 REPLY to opposition to motion re 71 MOTION to Withdraw as Attorney for 714

07/16/2007 07/25/2007
07/25/2007 07/25/2007 08/02/2007 08/14/2007 08/14/2007
08/15/2007
08/15/2007
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08/16/2007 08/20/2007 08/20/2007 08/21/2007
08/27/2007

Plaintiffs and Opposition to Motion to Bifurcate filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 (Breen Declaration)# 2 Attachment A to Breen Declaration# 3 Attachment B to the Breen Declaration# 4 Exhibit 2 (Def. 1st Discovery Requests))(Gebhardt, Joseph) (Entered: 07/13/2007)
84 MOTION to Withdraw as a party in this case by GLENN REFFNER (tg, ) (Entered: 07/18/2007)
85 REPLY to opposition to motion re 78 MOTION to Bifurcate liability and damages filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Jaffe, William) (Entered: 07/25/2007)
86 NOTICE of Service Regarding Discovery by ALL PLAINTIFFS (Day, Charles) (Entered: 07/25/2007)
87 NOTICE of Service Regarding Discovery by ALL PLAINTIFFS (Day, Charles) (Entered: 07/25/2007)
88 NOTICE of Extension of Deadline for Expert Reports by ALL PLAINTIFFS (Day, Charles) (Entered: 08/02/2007)
89 NOTICE of Appearance by Adam D. Kirschner on behalf of all defendants (Kirschner, Adam) (Entered: 08/14/2007)
90 MOTION to Compel by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)(Kirschner, Adam) (Entered: 08/14/2007)
91 NOTICE of Supplement to Defendants' Motion to Compel by NORMAN Y. MINETA, MARION C. BLAKEY re 90 MOTION to Compel (Kirschner, Adam) (Entered: 08/15/2007)
92 NOTICE of Service of Plaintiffs' Responses to Defendants' Second Set of Interrogatories and Requests for Production of Documents by ALL PLAINTIFFS (Day, Charles) (Entered: 08/15/2007)
93 NOTICE of Service by ALL PLAINTIFFS (Day, Charles) (Entered: 08/15/2007)
94 NOTICE of Service by ALL PLAINTIFFS (Day, Charles) (Entered: 08/16/2007)
95 NOTICE of Certificate of Familiarity with the Local Rules by NORMAN Y. MINETA, MARION C. BLAKEY re 89 Notice of Appearance (Kirschner, Adam) (Entered: 08/16/2007)
96 NOTICE of Certificate of Familiarity with Local Rules by NORMAN Y. MINETA, MARION C. BLAKEY (Jaffe, William) (Entered: 08/16/2007)
97 NOTICE of Extending Expert Deadlines by NORMAN Y. MINETA, MARION C. BLAKEY (Kirschner, Adam) (Entered: 08/20/2007)
98 NOTICE of Joint Request for a Status Conference by NORMAN Y. MINETA, MARION C. BLAKEY (Kirschner, Adam) (Entered: 08/20/2007)
99 Consent MOTION to Defer Consideration of Defendants' Motion to Compel by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 08/21/2007)
MINUTE ORDER: It is hereby ORDERED that the parties be, and hereby are,

directed to file by September 5, 2007, a joint memorandum detailing all of the issues about which parties seek a status conference 98 , and their respective positions on those issues. A status conference is set for 9/14/07 at 11 a.m. Issued by Judge Richard W. Roberts on 8/27/07. (EHS) (Entered: 08/27/2007)

09/04/2007

Set Deadlines/Hearings: Joint memorandum due by 9/5/2007.,Status Conference set for 9/14/2007 11:00 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 09/04/2007)

09/04/2007 100 NOTICE of Filing of Praecipe by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 09/04/2007)

09/05/2007 101 MEMORANDUM re Order, by ALL PLAINTIFFS. (Day, Charles) (Entered: 09/05/2007)

09/14/2007 102 NOTICE of Appearance by Valencia R. Rainey on behalf of KATHLEEN A. BREEN (Rainey, Valencia) (Entered: 09/14/2007)

09/14/2007

Minute Entry. Proceedings held before Judge Richard W. Roberts : Status Conference held on 9/14/2007. Motion #s 76, 79 and 84 to withdraw plaintiffs granted; Motion #71 to withdraw attorney granted as to those 20 plaintiffs who wish to proceed pro se and denied as to remaining plaintiffs; Motion #78 to bifurcate denied without prejudice; Motion # 90 to compel discovery responses denied without prejudice; Motion #99 to defer consideration of motion to compel denied as moot. (Court Reporter Scott Wallace.) (zlin, ) (Entered: 09/17/2007)

09/21/2007 103 RESPONSE TO ORDER OF THE COURT : Notice of Filing filed by KATHLEEN A. BREEN. (Attachments: # 1 Exhibit 1)(Day, Charles) (Entered: 09/21/2007)

10/31/2007 104 NOTICE of Proposed Order to Show Cause by NORMAN Y. MINETA, MARION C. BLAKEY re Status Conference,, (Attachments: # 1 Text of Proposed Order to Show Cause)(Kirschner, Adam) (Entered: 10/31/2007)

11/08/2007 105 ENTERED IN ERROR.....ORDER setting deadline for confirming appearance pro se and providing clerk with contact information. Signed by Judge Richard W. Roberts on 11/08/2007. (EHS) Modified on 11/8/2007 (EHS, ). Modified on 11/9/2007 (nmw, ). (Entered: 11/08/2007)

11/08/2007 106 ORDER setting deadline for confirming appearance and providing clerk with contact information. Signed by Judge Richard W. Roberts on 11/08/2007. (Attachments: # 1 Form for entering appearance)(EHS) (Entered: 11/08/2007)

11/08/2007 107 ORDER TO SHOW CAUSE. Show Cause Response due by 11/29/2007. Signed by Judge Richard W. Roberts on 11/8/2007. (Attachments: # 1 Appendix Plaintiffs required to respond to show cause order)(EHS) (Entered: 11/08/2007)

11/08/2007

MINUTE ORDER: It is hereby ORDERED that, in light of plaintiff Brenda J. Lee's opposition, the motion 71 to withdraw as attorney for 714 plaintiffs be, and hereby is DENIED, as to Brenda J. Lee, without prejudice. Issued by Judge Richard W. Roberts on 11/8/2007. (EHS) (Entered: 11/08/2007)

11/08/2007 108 NOTICE Regarding Correspondence with the Court (Attachments: # 1 Letter from Barbara MCInerney# 2 Letter from Rebecca S. Nedderman# 3 Letter from Ralph E. Kerschner, Jr.# 4 Letter from Sharon H. Lange# 5 Letter from Julia

Greenway# 6 Letter from Jean K. Caruso# 7 Letter from Roy M. Carroll# 8 Letter from Norman B. Buckallew# 9 Letter from G. Peter Gerggren) (tg, ) "Leave to File Granted" by Judge Richard W. Roberts. Modified to add the notice regarding correspondence with the Court on 11/9/2007 (tg, ). (Entered: 11/09/2007)

11/08/2007 109 ENTERED IN ERROR.....LETTER in Opposition to 71 MOTION to Withdraw as Attorney for 714 Plaintiffs by BRENDA J. LEE. (tg, ) "Leave to File Granted" by Judge Richard W. Roberts. Modified on 11/23/2007 (tg, ). (Entered: 11/09/2007)

11/09/2007

NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 105 Order was entered in error and was refiled as Docket Entry 106 . (nmw, ) (Entered: 11/09/2007)

11/09/2007

NOTICE OF CORRECTED DOCKET ENTRY: a Notice Regarding Correspondence with the Court was added by the Clerk to Docket Entry Number 108 .(tg, ) (Entered: 11/09/2007)

11/09/2007 110 NOTICE of Service of Show Cause Order by ALL PLAINTIFFS re 107 Order to Show Cause (Gebhardt, Joseph) (Entered: 11/09/2007)

11/20/2007 111 NOTICE of Appearance by Lisa Zeidner Marcus on behalf of all defendants (Marcus, Lisa) (Entered: 11/20/2007)

11/20/2007 112 NOTICE Consent Notice to Extend Date for Plaintiffs' Interrogatory Responses by NORMAN Y. MINETA, MARION C. BLAKEY (Marcus, Lisa) (Entered: 11/20/2007)

11/23/2007

NOTICE OF CORRECTED DOCKET ENTRY: re 109 Memorandum in Opposition was filed in this case in error. The pleading will be properly filed in Case Number 05-1335. (tg, ) (Entered: 11/23/2007)

11/29/2007 113 NOTICE of Filing of Praecipe by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 11/29/2007)

11/29/2007 114 RESPONSE TO ORDER TO SHOW CAUSE by ALL PLAINTIFFS re 107 Order to Show Cause. (Gebhardt, Joseph) (Entered: 11/29/2007)

11/29/2007 115 NOTICE of Filing by ALL PLAINTIFFS re 107 Order to Show Cause (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gebhardt, Joseph) (Entered: 11/29/2007)

11/29/2007 116 NOTICE of Filing by ALL PLAINTIFFS re 107 Order to Show Cause (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 11/29/2007)

11/29/2007 117 NOTICE of Filing by ALL PLAINTIFFS re 107 Order to Show Cause (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 11/29/2007)

11/30/2007 118 NOTICE of Service by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 11/30/2007)

12/10/2007 119 RESPONSE re 118 Notice (Other) filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Kennedy, Brian) (Entered: 12/10/2007)

12/28/2007 120 Joint MOTION for Protective Order involving Proprietary or Otherwise Confidential Information by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 12/28/2007)

01/03/2008 121 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Judge Richard W. Roberts on 1/2/08. (lin, ) (Entered: 01/03/2008)

01/07/2008 122 MEMORANDUM OPINION denying motions to intervene, join, or reinstate. Signed by Judge Richard W. Roberts on 1/7/2008. (EHS) (Entered: 01/07/2008)

01/08/2008 123 ORDER TO SHOW CAUSE directed to certain plaintiffs, and order to plaintiffs' counsel directing service. Show Cause Response due by 2/7/2008.Signed by Judge Richard W. Roberts on 1/8/2008. (EHS) (Entered: 01/08/2008)

01/08/2008 124 RESPONSES To Show Cause Order re 107 Order to Show Cause. (Attachments: # 1 Response from Brian K. Bullard# 2 Response from Curtis R. Crane# 3 Response from Marc A. Custis# 4 Response from John S. Dibble# 5 Response from Gregory G. Dixon# 6 Response from Tom Domingo# 7 Response from Daniel W. Fichuk# 8 Response from Richard C. Gray# 9 Response from James S. Hill# 10 Response from Charles E. Holland, Jr.# 11 Response from John J. Lynch# 12 Response from Craig R. Mackoy# 13 Response from Homer E. McCready# 14 Response from William R. Nelson# 15 Response from Nelson R. Norris, III# 16 Response from Larry J. Rubitsky# 17 Response from Mark G. Rufener# 18 Response from David J. Sorenson# 19 Response from Sheila K. Stillman Betts# 20 Response from Arpad G. Szatori, Jr.# 21 Response from Scott L. Turner)(tg, ) (Entered: 01/08/2008)

01/09/2008

Set/Reset Deadlines: Response to Show Cause due by 2/7/2008. (tb, ) (Entered: 01/09/2008)

01/10/2008 125 Joint MOTION for Extension of Time to Complete Discovery and to Bifurcate by ALL PLAINTIFFS, NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order Proposed Order)(Marcus, Lisa) (Entered: 01/10/2008)

01/24/2008 126 MOTION for Reconsideration re 122 Memorandum & Opinion by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 01/24/2008)

01/29/2008

MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 125 for extension of time to complete discovery and to bifurcate the proceedings be, and hereby is, GRANTED IN PART AND DENIED IN PART. The discovery deadline is extended to April 7, 2008. However, the request to wholly bifurcate liability and damages proceedings is denied. The conference scheduled for February 8, 2008 shall be converted to a status conference. The parties shall confer beforehand and come prepared to present and discuss a proposal to gather in the present extended discovery period a greater sampling of damages discovery than that proposed in the motion. The aim is to posture the parties to be sufficiently educated about all issues so that intelligent mediation or settlement discussions can precede any thought of drafting summary judgment motions and oppositions or engaging in a unitary or bifurcated trial. Issued by Judge Richard W. Roberts on 1/29/08. (EHS) (Entered: 01/29/2008)

02/05/2008 127 Memorandum in opposition to re 126 MOTION for Reconsideration re 122 Memorandum & Opinion filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Kirschner, Adam) (Entered: 02/05/2008)

02/07/2008 128 MOTION for Reconsideration re 122 Memorandum & Opinion denying motions to intervene, join, or reinstate by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order Proposed Order)(Garon, Lenore) (Entered: 02/07/2008)

02/08/2008

Minute Entry for proceedings held before Judge Richard W. Roberts: Status Conference held on 2/8/2008. The Court construed and granted nunc, pro tunc, Motion for Reconsideration 126 to read as Motion to File for Extenstion of time. Discovery 04/07/08 deadline extended 45 days. Joint Written Status Report due by 2/29/2008, All Discovery due by 5/22/2008. Post Discovery Status Conference set for 5/23/2008 09:15 AM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott Wallace.) (ldc, ) (Entered: 02/08/2008)

02/08/2008

Set/Reset Deadlines/Hearings: Joint Written Status Report due by 2/29/2008, all discovery due by 5/22/2008. Post Discovery Status Conference set for 5/23/2008 09:15 AM in Courtroom 9 before Judge Richard W. Roberts. (ldc, ) (Entered: 02/08/2008)

02/11/2008

Set/Reset Deadlines/Hearings: Status Report due by 2/29/2008 Discovery due by 5/22/2008. Status Conference set for 5/23/2008 09:15 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 02/11/2008)

02/21/2008 129 Memorandum in opposition to re 128 MOTION for Reconsideration re 122 Memorandum & Opinion denying motions to intervene, join, or reinstate filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Exhibit -- Pls' Third Discovery Requests)(Kennedy, Brian) (Entered: 02/21/2008)

02/29/2008 130 STATUS REPORT Joint by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 02/29/2008)

03/03/2008 131 REPLY to opposition to motion re 128 MOTION for Reconsideration re 122 Memorandum & Opinion denying motions to intervene, join, or reinstate, 126 MOTION for Reconsideration re 122 Memorandum & Opinion filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 03/03/2008)

03/26/2008 132 NOTICE of Filing of Praecipe by ALL PLAINTIFFS (Dann, Mark) (Entered: 03/26/2008)

03/26/2008 133 MOTION to Exclude Plaintiffs' Liability Expert Report Submitted after the Deadline by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Marcus, Lisa) (Entered: 03/26/2008)

04/08/2008 134 Consent MOTION for Extension of Time to File Response/Reply as to 133 MOTION to Exclude Plaintiffs' Liability Expert Report Submitted after the Deadline by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 04/08/2008)

04/16/2008 135 Memorandum in opposition to re 133 MOTION to Exclude Plaintiffs' Liability Expert Report Submitted after the Deadline filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 04/16/2008)

04/18/2008

MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 134 for extension of time to respond to defendant's motion to exclude plaintiffs' expert report be, and hereby is, GRANTED nunc pro tunc. Signed by Judge Richard W.

Roberts on 4/18/2008. (DCL) (Entered: 04/18/2008)

04/21/2008 136 NOTICE of Appearance by Daniel K. Gebhardt on behalf of ALL PLAINTIFFS (Gebhardt, Daniel) (Entered: 04/21/2008)

04/25/2008 137 Consent MOTION for Extension of Time to File Response/Reply in Support of Defendants' Motion to Exclude Plaintiffs' Liability Expert Reports Submitted After the Deadline by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Marcus, Lisa) (Entered: 04/25/2008)

05/01/2008 138 STATUS REPORT on Service of Discovery by KATHLEEN A. BREEN. (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 05/01/2008)

05/05/2008

MINUTE ORDER: It is hereby ORDERED that defendants' consent motion 137 for extension of time until May 12, 2008, to file a reply brief in support of their motion to exclude plaintiffs' expert reports be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 5/5/2008. (DCL) (Entered: 05/05/2008)

05/05/2008

Set/Reset Deadlines: Replies due by 5/12/2008. (zlin, ) (Entered: 05/05/2008)

05/06/2008 139 Joint MOTION for Extension of Time to Complete Discovery by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 05/06/2008)

05/08/2008

Set/Reset Deadlines: Reply due by 5/12/2008. (lin, ) (Entered: 05/08/2008)

05/08/2008 140 NOTICE by NORMAN Y. MINETA, MARION C. BLAKEY (Kirschner, Adam) (Entered: 05/08/2008)

05/12/2008 141 REPLY to opposition to motion re 133 MOTION to Exclude Plaintiffs' Liability Expert Report Submitted after the Deadline filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit)(Marcus, Lisa) (Entered: 05/12/2008)

05/13/2008 142 ERRATA by NORMAN Y. MINETA, MARION C. BLAKEY 141 Reply to opposition to Motion filed by MARION C. BLAKEY, NORMAN Y. MINETA. (Marcus, Lisa) (Entered: 05/13/2008)

05/13/2008 143 NOTICE of Anticipated Communications with Pro Se Plaintiffs by NORMAN Y. MINETA, MARION C. BLAKEY re 106 Order (Attachments: # 1 Exhibit 1Anticipated Letter to Pro Se Plaintiffs, # 2 Exhibit 2- List of Pro Se Plaintiffs) (Kirschner, Adam) (Entered: 05/13/2008)

05/16/2008 144 NOTICE of Filing of Praecipe by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 05/16/2008)

05/16/2008 145 RESPONSE TO ORDER TO SHOW CAUSE by ALL PLAINTIFFS re 107 Order to Show Cause. (Gebhardt, Joseph) (Entered: 05/16/2008)

05/19/2008

MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 139 for extension of time to complete discovery be, and hereby is, GRANTED. The deadline to complete discovery is EXTENDED to June 25, 2008, and the postdiscovery status conference is RESCHEDULED to occur on June 26, 2008 at 3:30 p.m. Issued by Judge Richard W. Roberts on 5/19/2008. (DCL) (Entered: 05/19/2008)

05/19/2008

Set/Reset Hearings: Status Conference set for 6/26/2008 03:30 PM in Courtroom

9 before Judge Richard W. Roberts. (lin, ) (Entered: 05/19/2008)

05/22/2008 146 NOTICE of Service of Corrections to Letter to Pro Se Plaintiffs by NORMAN Y. MINETA, MARION C. BLAKEY re 143 Notice (Other), Notice (Other) (Attachments: # 1 Exhibit)(Kennedy, Brian) (Entered: 05/22/2008)

05/22/2008 147 MOTION for Leave to File to File Sur-Reply to Defendant's Motion to Exclude Expert's Report by ALL PLAINTIFFS (Attachments: # 1 Proposed Sur-Reply, # 2 Exhibits to Proposed Sur-Reply, # 3 Text of Proposed Order Denying Defendants' Motion to Exclude Expert's Report, # 4 Text of Proposed Order Granting Leave to File Sur-Reply)(Garon, Lenore) (Entered: 05/22/2008)

05/23/2008 148 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Mark A. Dann terminated. (Dann, Mark) (Entered: 05/23/2008)

05/27/2008 149 Memorandum in opposition to re 147 MOTION for Leave to File to File SurReply to Defendant's Motion to Exclude Expert's Report filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Marcus, Lisa) (Entered: 05/27/2008)

05/28/2008 150 Joint MOTION to Continue the Status Conference and Amend the Minute Order of May 19, 2008 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 05/28/2008)

05/30/2008 151 ORDER dismissing certain plaintiffs who failed to respond to the Orders 107 123 to show cause, and order to plaintiffs' counsel directing service. Signed by Judge Richard W. Roberts on 5/29/2008. (DCL) (Entered: 05/30/2008)

06/04/2008

Set/Reset Deadlines/Hearings: Discovery due by 6/23/2008. Status Conference set for 6/24/2008 12:30 PM in Courtroom 9 before Judge Richard W. Roberts. (zlin, ) (Entered: 06/04/2008)

06/04/2008 152 Unopposed MOTION to Amend/Correct 151 Order of May 30, 2008 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 06/04/2008)

06/06/2008 153 REPLY to opposition to motion re 147 MOTION for Leave to File to File SurReply to Defendant's Motion to Exclude Expert's Report filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 06/06/2008)

06/09/2008 154 NOTICE of Service and Status Report by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1)(Day, Charles) (Entered: 06/09/2008)

06/12/2008 155 Joint MOTION to Take Deposition from Joseph L. Tryon, William J. Carrington, and Ted Sturm Out of Time by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 06/12/2008)

06/16/2008 156 MOTION for Reconsideration re 151 Order of May 30, 2008 by DONNA DODSON (jf, ) (Entered: 06/17/2008)

06/24/2008

Minute Entry for proceedings held before Judge Richard W. Roberts: Status Conference held on 6/24/2008. Discovery due by 8/8/2008. Status Conference set for 8/11/2008 at 09:45 AM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott Wallace.) (rje) (Entered: 06/24/2008)

06/24/2008

MINUTE ORDER granting 155 Motion to Take Deposition. Signed by Judge Richard W. Roberts on 6/24/08. (rje) Modified on 6/24/2008 (rje, ). (Entered:

06/24/2008)

06/24/2008 157 CASE REFERRED to Magistrate Judge Alan Kay for 133 MOTION to Exclude Plaintiffs' Liability Expert Report Submitted after the Deadline and [147 ] MOTION for Leave to File to File Sur-Reply to Defendant's Motion to Exclude Expert's Report. (kb) (Entered: 06/27/2008)

06/27/2008 158 ORDER granting 152 Motion to Amend/Correct. Signed by Judge Richard W. Roberts on 6/26/08. (lin, ) (Entered: 06/27/2008)

06/27/2008 159 Memorandum in opposition to re 156 MOTION for Reconsideration re 151 Order filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Ex 1. Plaintiff Dodson's Response to First Discovery Request, # 2 Exhibit Ex. 2 -- Plaintiff Dodson's Response to Second Discovery Request, # 3 Exhibit Ex. 3 -- Plaintiff Dodson's Response to Third Discovery Requests, # 4 Exhibit Excerpts, Deposition of Donna Dodson)(Kennedy, Brian) (Entered: 06/27/2008)

06/30/2008

MINUTE ORDER denying 147 Plaintiffs' Motion for Leave to File a Sur-Reply to Defenndants' Motion to Exclude Plaintiffs' Liability Report. Signed by Magistrate Judge Alan Kay on 6/30/08. (lcak1) (Entered: 06/30/2008)

07/02/2008 160 Unopposed MOTION Oral Argument re 133 MOTION to Exclude Plaintiffs' Liability Expert Report Submitted after the Deadline, 135 Memorandum in Opposition, 141 Reply to opposition to Motion by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 07/02/2008)

07/03/2008 161 Unopposed MOTION To reset status call and clarify expectations for pro se plaintiffs with respect to status call by NORMAN Y. MINETA (Attachments: # 1 Text of Proposed Order)(Kennedy, Brian) (Entered: 07/03/2008)

07/03/2008 162 NOTICE of Supplemental Service by NORMAN Y. MINETA, MARION C. BLAKEY re 159 Memorandum in Opposition, (Kennedy, Brian) (Entered: 07/03/2008)

07/07/2008 163 MEMORANDUM ORDER denying 133 Defendants' Motion to Exclude Plaintiffs' Liability Expert Report; denying as moot 160 Plaintiffs' Unopposed Motion for Oral Argument. Signed by Magistrate Judge Alan Kay on 7/7/08. (lcak1) (Entered: 07/07/2008)

07/10/2008 164 REPLY to opposition to 156 MOTION for Reconsideration re 151 Order filed by DONNA DODSON. (jf, ) (Entered: 07/11/2008)

07/16/2008 165 MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibit 1 -- Declaration of Steven K. Patterson, # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 07/16/2008)

07/21/2008 166 Memorandum in opposition to re 165 MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Defs' Responses to Pls' First Set of Interrogatories)(Kennedy, Brian) (Entered: 07/21/2008)

07/22/2008 167 ORDER granting 161 Motion to reset post discovery status call to 8/12/08 at

10:30 a.m.. Signed by Judge Richard W. Roberts on 8/12/08. (lin, ) (Entered: 07/22/2008)

07/22/2008

Set/Reset Hearings: Status Conference reset for 8/12/2008 10:30 AM in Courtroom 9 before Judge Richard W. Roberts. (zlin, ) (Entered: 07/22/2008)

07/22/2008 168 NOTICE of Service by ALL PLAINTIFFS (Garon, Lenore) (Entered: 07/22/2008)

07/28/2008 169 MOTION to Withdraw as Attorney from Show Cause Plaintiff Tom Domingo by ALL PLAINTIFFS (Attachments: # 1 Exhibit Notice to Plaintiff Tom Domingo, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 07/28/2008)

07/30/2008 170 Unopposed MOTION for Extension of Time to File Reply to Defendants' Opposition to Plaintiff Steven K. Patterson's Motion for Reconsideration of the Court's Order of May 30, 2008 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 07/30/2008)

07/30/2008 171 RESPONSE TO ORDER TO SHOW CAUSE by ALL PLAINTIFFS re 107 Order to Show Cause by Diana Moore-Holman. (Garon, Lenore) (Entered: 07/30/2008)

08/05/2008 172 MOTION for Reconsideration re 151 Order as to Plaintiff Kenneth Thomas by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Exhibit Declaration of Kenneth Thomas, # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 08/05/2008)

08/06/2008 173 Memorandum in opposition to re 169 MOTION to Withdraw as Attorney from Show Cause Plaintiff Tom Domingo (Partial Opposition) filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Ex 1 -- Pl. Domingo Discovery Requests in this case, # 2 Exhibit EEOC Order denying discovery, # 3 Exhibit Pl. Domingo Discovery Requests in EEOC case)(Kennedy, Brian) (Entered: 08/06/2008)

08/07/2008 174 NOTICE of Filing of Notice of Appearance and Letter in Support by ALL PLAINTIFFS re 169 MOTION to Withdraw as Attorney from Show Cause Plaintiff Tom Domingo (Attachments: # 1 Notice of Appearance of Tom Domingo, Pro Se, # 2 Letter to Court in Support of Motion to Withdraw)(Garon, Lenore) (Entered: 08/07/2008)

08/08/2008 175 REPLY to opposition to motion re 165 MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 08/08/2008)

08/11/2008

MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 170 for extension of time to respond be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 8/11/2008. (DCL) (Entered: 08/11/2008)

08/11/2008

MINUTE ORDER: It is hereby ORDERED that plaintiffs' counsel's motion 169 for leave to withdraw as counsel for plaintiff Tom Domingo be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 8/11/2008. (DCL) (Entered: 08/11/2008)

08/11/2008

MINUTE ORDER: It is hereby ORDERED that plaintiffs counsel file a supplement to plaintiffs motion 165 for reconsideration describing with specificity where plaintiff Steven K. Patterson lived at each of the two occasions when

plaintiffs counsel sent its mailings to Patterson at the West Des Moines, Iowa, address, and if Patterson was not living at the West Des Moines, Iowa address, what, if any, forwarding addresses he provided to the United States Postal Service, and when he provided them. Issued by Judge Richard W. Roberts on 8/11/2008. (DCL) (Entered: 08/11/2008)

08/11/2008 176 NOTICE of Appearance by KEVIN C. HOYT. "Let this be filed" by Judge Richard W. Roberts (jf, ) (Entered: 08/13/2008)

08/12/2008

Minute Entry for proceedings held before Judge Richard W. Roberts: Status Conference held on 8/12/2008, ( Discovery due by 9/30/2008., Status Report due by 10/31/2008). (Court Reporter Scott Wallace.) (lin, ) (Entered: 08/12/2008)

08/14/2008 177 Memorandum in opposition to re 172 MOTION for Reconsideration re 151 Order as to Plaintiff Kenneth Thomas filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Ex. 1 -- E-mail from Lockheed Re Thomas's employment, # 2 Exhibit Excerpts, Deposition of Plaintiff Ronald J. Consalvo, # 3 Exhibit Excerpts, Deposition of Plaintiff Peter E. Jensen, # 4 Exhibit Excerpts, Deposition of Plaintiff Denise Elias)(Kennedy, Brian) (Entered: 08/14/2008)

08/14/2008 178 NOTICE of Appearance by Lenore Cooper Garon on behalf of GEORGIANNE HANJOUL, JEAN K. CARUSO (Garon, Lenore) (Entered: 08/14/2008)

08/14/2008 179 NOTICE of Appearance by Joseph D. Gebhardt on behalf of GEORGIANNE HANJOUL, JEAN K. CARUSO (Gebhardt, Joseph) (Entered: 08/14/2008)

08/15/2008 180 MEMORANDUM OPINION AND ORDER denying motion 156 for reconsideration. Signed by Judge Richard W. Roberts on 8/15/2008. (DCL) Modified on 8/15/2008 to reflect correct motion #156 rather than 56. (jeb, ). (Entered: 08/15/2008)

08/15/2008 181 MEMORANDUM OPINION AND ORDER denying motion 128 for reconsideration. Signed by Judge Richard W. Roberts on 8/15/2008. (DCL) (Entered: 08/15/2008)

08/18/2008 182 SUPPLEMENTAL MEMORANDUM to re 165 MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson MOTION for Reconsideration re 151 Order of May 30, 2008, concerning Steven K. Patterson filed by ALL PLAINTIFFS. (Attachments: # 1 Declaration Supplementary Declaration of Steven K. Patterson, # 2 Exhibit Exhibit 2)(Garon, Lenore) (Entered: 08/18/2008)

08/21/2008 183 Unopposed MOTION for Extension of Time to Reply to Defendants' Opposition to Plaintiff Kenneth D. Thomas's Motion for Reconsideration of the Court's Order of May 30, 2008 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 08/21/2008)

08/29/2008 184 TRANSCRIPT OF PROCEEDINGS before Judge Richard W. Roberts of proceedings held on 08/12/2008; Page Numbers: 1-44. Date of Issuance:8/29/08. Court Reporter/Transcriber Scott Wallace, Telephone number 202-354-3196, Court Reporter Email Address : Scottlyn01@aol.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced

above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.
Redaction Request due 9/19/2008. Redacted Transcript Deadline set for 9/29/2008. Release of Transcript Restriction set for 11/28/2008.(Wallace, Scott) (Entered: 08/29/2008)
09/02/2008 185 REPLY to opposition to motion re 172 MOTION for Reconsideration re 151 Order as to Plaintiff Kenneth Thomas filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Supplementary Declaration of Kenneth D. Thomas)(Garon, Lenore) (Entered: 09/02/2008)
09/02/2008 203 MOTION for modification of the Court's May 30, 2008 Order re 151 Order by FRANK MATKINS. (jf, ) (Entered: 10/16/2008)
09/05/2008 186 MOTION to Compel by TOM DOMINGO. (jf, ) (Entered: 09/10/2008)
09/10/2008 187 MOTION to Dismiss All Claims of Plaintiffs Joseph Allen, Tye C. Bjorkman, Brian K. Bullard, Roy M. Carroll, Curtis R. Crane, Jerry Clark, Jesse Clark, John S. Dibble, Marjorie Edmiston, Daniel W. Fichuk, Michael A. Helwig, Kevin Hoyt, Ralph E, Kerschner, Jr., Sharon H. Lange, John J. Lynch, William Madden, William Parhamenko, Robert Pedraza, Frances T. Siedler, Sheila K. StillmanBetts, Arpad G. Szatori Jr., Scott L. Turner, Jose Vasquez, and Jim G. Wilkerson by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Attachment 1: Defs' 1st Discovery Requests, # 3 Exhibit Attachment 2: Defs' 3d Set of Discovery, # 4 Exhibit Attachment 3: Pls' Counsel's May 2008 Letter to Certain Plaintiffs, # 5 Exhibit Attachment 4: Defs' Counsel's Aug. 2008 Letter to Certain Pro Se Plaintiffs)(Kennedy, Brian) (Entered: 09/10/2008)
09/11/2008 188 ENTERED IN ERROR.....MEMORANDUM by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Attachment to Matkin Opposition)(Kennedy, Brian) Modified on 9/23/2008 (jf, ). (Entered: 09/11/2008)
09/12/2008 189 Consent MOTION to Dismiss William Parhamenko by ALL PLAINTIFFS (Attachments: # 1 Exhibit Email Correspondence with William Parhamenko, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 09/12/2008)
09/12/2008 192 CASE REFERRED to Magistrate Judge Alan Kay for discovery. (kb, ) (Entered: 09/15/2008)
09/15/2008 190 Memorandum in opposition to re 186 MOTION to Compel filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Excerpts, Deposition of Thomas Domingo, from Domingo v. FAA, # 2 Exhibit Order Denying Discovery, Domingo v. FAA, # 3 Exhibit Request for Discovery,

Domingo v. FAA)(Kennedy, Brian) (Entered: 09/15/2008)

09/15/2008 191 NOTICE of Withdrawal of Motion to Dismiss with Respect to Plaintiffs Arpad G. Szatori, Jr., and William Parhamenko by NORMAN Y. MINETA, MARION C. BLAKEY re 187 MOTION to Dismiss All Claims of Plaintiffs Joseph Allen, Tye C. Bjorkman, Brian K. Bullard, Roy M. Carroll, Curtis R. Crane, Jerry Clark, Jesse Clark, John S. Dibble, Marjorie Edmiston, Daniel W. Fichuk, Michael A. Helwig, Kevin Hoyt, Ralph E, Kers (Attachments: # 1 Text of Proposed Order) (Kennedy, Brian) (Entered: 09/15/2008)

09/15/2008 193 MOTION for Voluntary Dismissal from case by ELDON D. TAYLOR, JR. (jf, ) (Entered: 09/19/2008)

09/19/2008 194 Memorandum in opposition to re 187 MOTION to Dismiss All Claims of Plaintiffs Joseph Allen, Tye C. Bjorkman, Brian K. Bullard, Roy M. Carroll, Curtis R. Crane, Jerry Clark, Jesse Clark, John S. Dibble, Marjorie Edmiston, Daniel W. Fichuk, Michael A. Helwig, Kevin Hoyt, Ralph E, Kers filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 09/19/2008)

09/19/2008 204 REPLY to opposition to 203 MOTION for modification of the Court's May 30, 2008 Order re 151 Order filed by FRANK MATKINS. (jf, ) (Entered: 10/20/2008)

09/23/2008

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 188 Memorandum was entered in error and counsel is directed not file pleading to documents not posted on the Court's docket.(jf, ) (Entered: 09/23/2008)

09/26/2008 195 REPLY to opposition to motion re 187 MOTION to Dismiss All Claims of Plaintiffs Joseph Allen, Tye C. Bjorkman, Brian K. Bullard, Roy M. Carroll, Curtis R. Crane, Jerry Clark, Jesse Clark, John S. Dibble, Marjorie Edmiston, Daniel W. Fichuk, Michael A. Helwig, Kevin Hoyt, Ralph E, Kers filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Text of Proposed Order Revised)(Kirschner, Adam) (Entered: 09/26/2008)

09/26/2008 196 NOTICE of Revised Certificate of Service by NORMAN Y. MINETA, MARION C. BLAKEY re 195 Reply to opposition to Motion, (Kirschner, Adam) (Entered: 09/26/2008)

09/29/2008 197 NOTICE of Filing by ALL PLAINTIFFS re 123 Order to Show Cause (Attachments: # 1 Response of Plaintiff Madden to Order to Show Cause)(Garon, Lenore) (Entered: 09/29/2008)

09/30/2008 198 Consent MOTION for Extension of Time to Complete Discovery by KATHLEEN A. BREEN (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 09/30/2008)

10/03/2008 199 NOTICE by NORMAN Y. MINETA, MARION C. BLAKEY re 187 MOTION to Dismiss All Claims of Plaintiffs Joseph Allen, Tye C. Bjorkman, Brian K. Bullard, Roy M. Carroll, Curtis R. Crane, Jerry Clark, Jesse Clark, John S. Dibble, Marjorie Edmiston, Daniel W. Fichuk, Michael A. Helwig, Kevin Hoyt, Ralph E, Kers (Kirschner, Adam) (Entered: 10/03/2008)

10/03/2008 201 ERRATA re 186 MOTION to Compel filed by TOM DOMINGO. (jf, ) (Entered: 10/06/2008)

10/06/2008 200 ORDER granting motions 189 193 for voluntary dismissal by plaintiffs William Parhamenko and Eldon D. Taylor Jr. Signed by Judge Richard W. Roberts on 10/3/2008. (DCL) (Entered: 10/06/2008)

10/07/2008 202 REPLY to opposition to 186 MOTION to Compel filed by TOM DOMINGO. "Leave to file granted"" by Judge Richard W. Roberts (jf, ) (Entered: 10/08/2008)

10/20/2008 205 Joint MOTION for Extension of Time to Complete Discovery by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order) (Kirschner, Adam) (Entered: 10/20/2008)

10/22/2008

MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 205 for an extension of time to complete limited discovery be, and hereby is, GRANTED. Plaintiffs represented by Gebhardt & Associates may depose defendants' three liability experts within fifteen days of the conclusion of mediation, and the deadline for defendants to serve their remaining discovery responses is extended to December 5, 2008. Issued by Judge Richard W. Roberts on 10/22/2008. (DCL) (Entered: 10/22/2008)

10/23/2008 206 ORDER TO SHOW CAUSE: Show Cause Response due by 11/24/2008. Signed by Judge Richard W. Roberts on 10/23/2008. (DCL) (Entered: 10/23/2008)

10/24/2008

MINUTE ORDER Setting Hearing on Motion to Compel 186 by Plaintiff Tom Domingo. Motion Hearing set for 11/6/2008, at 10:00 AM in Courtroom 7 before Magistrate Judge Alan Kay. Signed by Magistrate Judge Alan Kay on 10/24/08. (DM) Modified on 10/27/2008 (nmw, ). (Entered: 10/24/2008)

10/24/2008 207 Memorandum in opposition to re 203 MOTION for modification of the Court's May 30, 2008 Order re 151 Order filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Ex. 1: Letter from Joseph Gebhardt Describing His Letter to Plaintiffs of April 17, 2007)(Kennedy, Brian) (Entered: 10/24/2008)

10/27/2008

MINUTE ORDER noting that the pro se Plaintiff, Mr. Domingo, who resides in West Virginia, may participate in the November 6, 2008 Motion Hearing by telephone instead of in person. Signed by Magistrate Judge Alan Kay on 10/27/08. (DM) (Entered: 10/27/2008)

10/28/2008 208 NOTICE of Filing by ALL PLAINTIFFS re 123 Order to Show Cause (Garon, Lenore) (Entered: 10/28/2008)

10/28/2008 209 NOTICE Of Service of Show Cause Order by ALL PLAINTIFFS re 206 Order to Show Cause (Garon, Lenore) (Entered: 10/28/2008)

10/30/2008 210 STATUS REPORT by NORMAN Y. MINETA, MARION C. BLAKEY. (Kirschner, Adam) (Entered: 10/30/2008)

10/30/2008 211 NOTICE of Certificate of Service by NORMAN Y. MINETA, MARION C. BLAKEY re 210 Status Report (Kirschner, Adam) (Entered: 10/30/2008)

11/04/2008 212 REPLY to opposition to 203 MOTION for modification of the Court's May 30, 2008 Order re 151 Order filed by FRANK MATKINS. (jf, ) (Entered: 11/05/2008)

11/06/2008

Minute Entry for proceedings held before Magistrate Judge Alan Kay on 11/6/08 : Motion to Compel by Plaintiff TOM DOMINGO 186 , heard, argued and taken under advisement. (Court Reporter: Bowles Reporting Services) (kk) (Entered:

11/10/2008)

11/10/2008 213 MOTION for Modification of the Court's May 30, 2008 Order re 206 Order to Show Cause filed by JANICE I. TEED WILSON. (jf, ) Modified on 11/18/2008 (jf, ). (Entered: 11/13/2008)

11/12/2008 215 NOTICE to the Court by JESSE A. CLARK. (jf, ) (Entered: 11/17/2008)

11/14/2008

MINUTE ORDER: In light of the joint status report 210 filed by the parties, it is hereby ORDERED that parties be, and hereby are, DIRECTED to file a joint status report and proposed Order on or before November 21, 2008. Issued by Judge Richard W. Roberts on 11/14/2008. (DCL) (Entered: 11/14/2008)

11/14/2008 214 Consent MOTION to Dismiss and Suggestion of Death of a Plaintiff by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 -- Death Certificate of Daniel W. Fichuk, # 2 Exhibit 2 -- Appointment of Personal Representative, # 3 Exhibit 3 -Letter of Instruction, # 4 Text of Proposed Order)(Garon, Lenore) (Entered: 11/14/2008)

11/14/2008 220 RESPONSE TO ORDER OF THE COURT re 206 Order to Show Cause filed by JIM G. WILKERSON. (jf, ) (Entered: 11/18/2008)

11/17/2008 216 MEMORANDUM IN OPPOSITION re 213 MOTION for Modification of the Court's May 30, 2008 Order filed by JANICE I. TEED WILSON by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Ex. 1: Plaintiffs' Counsel's Letter Describing Letter of April 2007, # 2 Exhibit Consalvo Deposition Excerpts, # 3 Exhibit Elias Deposition Excerpts, # 4 Exhibit Jensen Deposition Excerpts)(Kennedy, Brian) Modified on 11/18/2008 (jf, ). (Entered: 11/17/2008)

11/17/2008 218 RESPONSE TO ORDER OF THE COURT re 206 Order to Show Cause filed by SHARON H. LANGE. (jf, ) (Entered: 11/18/2008)

11/17/2008 219 RESPONSE TO ORDER OF THE COURT re 206 Order to Show Cause filed by RALPH E. KERSCHNER, JR. (jf, ) (Entered: 11/18/2008)

11/18/2008 217 SUPPLEMENTAL MEMORANDUM to re 186 MOTION to Compel filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Day, Charles) (Entered: 11/18/2008)

11/20/2008 221 RESPONSE TO ORDER OF THE COURT re 206 Order to Show Cause filed by ROY M. CARROLL. (jf, ) (Entered: 11/21/2008)

11/21/2008 222 STATUS REPORT (JOINT) by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 11/21/2008)

11/21/2008 224 RESPONSE TO 206 Order to Show Cause filed by ROBERT PEDRAZA. (jf, ) (Entered: 11/25/2008)

11/24/2008 223 NOTICE of Appearnace by CHARLES E. HOLLAND (jf, ) (Entered: 11/25/2008)

11/26/2008

MINUTE ORDER: It is hereby ORDERED that plaintiffs' suggestion of death and consent motion 214 to dismiss decedent from this action be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 11/26/2008. (DCL) (Entered: 11/26/2008)

12/05/2008 225 Joint MOTION for Extension of Time to Complete Outstanding Document

Production by NORMAN Y. MINETA, MARION C. BLAKEY (Marcus, Lisa) (Entered: 12/05/2008)

12/10/2008 226 MEMORANDUM ORDER denying 186 Plaintiff Tom Domingo's Motion to Compel. Signed by Magistrate Judge Alan Kay on 12/09/08. (DM) (Entered: 12/10/2008)

12/10/2008 227 RESPONSE TO ORDER OF THE COURT re 206 Order to Show Cause filed by WILLIAM R. MADDEN. "Let this be filed without the attachments. LCvR 5.4(f) by Judge Richard W. Roberts (jf) (Entered: 12/11/2008)

12/19/2008 228 STATUS REPORT (Joint) by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 12/19/2008)

12/19/2008 229 Amended MOTION to Amend/Correct 225 Joint MOTION for Extension of Time to Complete Outstanding Document Production by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Marcus, Lisa) (Entered: 12/19/2008)

12/23/2008

MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 229 for an extension of time to complete outstanding document production be, and hereby is, GRANTED. It is further ORDERED that, in light of the joint status report (228], the parties are hereby DIRECTED to file a joint status report and proposed order by January 16, 2009. Issued by Judge Richard W. Roberts on 12/23/2008. (DCL) (Entered: 12/23/2008)

01/06/2009 230 MEMORANDUM ORDER granting motions 165 172 for reconsideration. Signed by Judge Richard W. Roberts on 1/06/2009. (DCL) (Entered: 01/06/2009)

01/12/2009 231 MOTION to Dismiss Timothy Harvey by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Exhibit 1- Defendants' First Set of Discovery Requests, # 2 Exhibit 2- Defendants' Third Set of Discovery Requests, # 3 Exhibit 3- Email from Kennedy to Gebhardt, # 4 Text of Proposed Order)(Kirschner, Adam) (Entered: 01/12/2009)

01/12/2009 232 REPLY re 224 Response to Order of the Court filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Kirschner, Adam) (Entered: 01/12/2009)

01/12/2009 233 NOTICE of Apperance by HENRY ONTIVEROS. (jf, ) (Entered: 01/14/2009)

01/12/2009 234 MOTION for modification of the Court's May 30, 2008 Order re 151 Order by HENRY ONTIVEROS (jf, ) (Entered: 01/14/2009)

01/16/2009 235 MOTION for Hearing /Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 01/16/2009)

01/16/2009 236 STATUS REPORT on Mediation by NORMAN Y. MINETA, MARION C. BLAKEY. (Kirschner, Adam) (Entered: 01/16/2009)

01/16/2009 237 STATUS REPORT by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 01/16/2009)

01/21/2009

MINUTE ORDER: It is hereby ORDERED that a post-discovery status conference be, and hereby is, SCHEDULED to occur on February 18, 2009, at 12:30 p.m. Issued by Judge Richard W. Roberts on 1/21/2009. (DCL) (Entered: 01/21/2009)

01/23/2009 238 Consent MOTION for Extension of Time to Take Depositions of Bernard Siskin and William Carrington by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 01/23/2009)

01/27/2009 239 NOTICE of Filing by ALL PLAINTIFFS re 206 Order to Show Cause (Attachments: # 1 Letter from Plaintiff Sheila K. Miles)(Garon, Lenore) (Entered: 01/27/2009)

01/27/2009 240 NOTICE of Filing Concerning Deceased Plaintiff Denise Jones by ALL PLAINTIFFS (Attachments: # 1 Letter from Joseph D. Gebhardt)(Garon, Lenore) (Entered: 01/27/2009)

01/28/2009 241 Memorandum in opposition to re 234 MOTION for modification of the Court's May 30, 2008 Order re 151 Order filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Attachments: # 1 Exhibit Gebhardt April 18, 2007, Letter)(Kirschner, Adam) (Entered: 01/28/2009)

01/28/2009 242 RESPONSE re 239 Notice (Other) filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Kirschner, Adam) (Entered: 01/28/2009)

02/02/2009 243 MOTION to Dismiss Eddie Krenzelok by NORMAN Y. MINETA, MARION C. BLAKEY (Attachments: # 1 Exhibit 1- First Set of Discovery Requests, # 2 Exhibit 2- Third Set of Discovery Requests, # 3 Exhibit 3- Letter 5-1-08, # 4 Exhibit 4- Emails 9-4-08, # 5 Text of Proposed Order)(Kirschner, Adam) (Entered: 02/02/2009)

02/09/2009 244 MOTION for modification of the Court's May 30, 2008 Order re 151 Order by HENRY ONTIVEROS (Attachments: # 1 Exhibit)(jf, ) (Entered: 02/10/2009)

02/12/2009

MINUTE ORDER: It is hereby ORDERED that defendants' consent motion 238 for an extension of time through February 13, 2009, for the represented plaintiffs to take the depositions of Dr. Bernard Siskin and Dr. William Carrington be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 2/11/09. (DCL) (Entered: 02/12/2009)

02/12/2009 245 ORDER dismissing certain plaintiffs who failed to respond to the Order 206 to show cause, and order to plaintiffs' counsel directing service. Signed by Judge Richard W. Roberts on 2/12/2009. (DCL) (Entered: 02/12/2009)

02/17/2009 246 RESPONSE re 244 MOTION for modification of the Court's May 30, 2008 Order re 151 Order filed by NORMAN Y. MINETA, MARION C. BLAKEY. (Kirschner, Adam) (Entered: 02/17/2009)

02/17/2009 247 MEMORANDUM OPINION AND ORDER denying motions [203, 213, 234] for reconsideration. Signed by Judge Richard W. Roberts on 2/17/2009. (DCL) (Entered: 02/17/2009)

02/17/2009 248 NOTICE of Service Concerning Order of February 12, 2009 by ALL PLAINTIFFS re 245 Order (Garon, Lenore) (Entered: 02/17/2009)

02/18/2009

Minute Entry for proceedings held before Judge Richard W. Roberts: Status Hearing held on 2/18/2009. Defendants' 231 Motion to Dismiss Timothy Harvey, considered by the Court as conceded and Granted. Plaintiff, Timothy Harvey, is hereby dismissed from this Civil Action. A Joint Status Report is due on or before

3/23/2009. Defendants' Dispositive Motion is due by 4/27/2009. Plaintiffs' Opposition to Defendants' Dispositive Motion, and Cross-Motion are due by 5/26/2009. Defendants' Reply to Plaintiffs' Opposition to Defendants' Dispositive Motion, and Opposition to Plaintiffs' Cross-Motion are due by 6/19/2009. Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Cross Motions is due by 6/30/2009. (Court Reporter Scott Wallace.) (tg, ) (Entered: 02/18/2009)

02/18/2009

NOTICE OF CORRECTED DOCKET ENTRY: Minute Entry re Status Conference of 2/18/2009 was corrected to reflect the granting of Defendants' 231 Motion to Dismiss Plaintiff, Timothy Harvey.(tg, ) (Entered: 02/18/2009)

02/19/2009 249 NOTICE of Filing Concerning Sheila Miles by ALL PLAINTIFFS re 245 Order (Attachments: # 1 Exhibit Letter from Miles and Response to Defendants' First Interrogatories)(Garon, Lenore) (Entered: 02/19/2009)

02/24/2009 250 RESPONSE re 249 Notice (Other) filed by MARION C. BLAKEY, RAY H. LAHOOD. (Kirschner, Adam) (Entered: 02/24/2009)

03/23/2009 251 STATUS REPORT by MARION C. BLAKEY, RAY H. LAHOOD. (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 03/23/2009)

04/08/2009 252 TRANSCRIPT OF PROCEEDINGS before Judge Richard W. Roberts of proceedings held on 2-18-09; Page Numbers: 1-27. Date of Issuance:4-8-09. Court Reporter/Transcriber Scott Wallace, Telephone number 202-354-3196, Court Reporter Email Address : swallace.reporter@gmail.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

Redaction Request due 4/29/2009. Redacted Transcript Deadline set for 5/11/2009. Release of Transcript Restriction set for 7/7/2009.(Wallace, Scott) (Entered: 04/08/2009)
04/14/2009 253 NOTICE of FILING by ALL PLAINTIFFS (Attachments: # 1 Attachments to Notice of Filing)(Garon, Lenore) (Entered: 04/14/2009)
04/27/2009 254 Joint MOTION for Leave to File Excess Pages by MARION C. BLAKEY, RAY H. LAHOOD (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 04/27/2009)
04/27/2009 255 Unopposed MOTION to Substitute Party Plaintiff Denise Jones by ALL PLAINTIFFS (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 04/27/2009)

04/27/2009 256 MOTION for Summary Judgment by MARION C. BLAKEY, RAY H. LAHOOD (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 (Ohio University Study), # 3 Exhibit 2 (Flight Forecast Statistics 1999-2010), # 4 Exhibit 3 (Flight Forecast Statistics 2005-2016), # 5 Exhibit 4 (Coopers and Lybrand Study), # 6 Exhibit 5 (1996 IG Report), # 7 Exhibit 6 (FAA Core Group Report), # 8 Exhibit 7 (2001 IG Report), # 9 Exhibit 8 (President's Management Agenda), # 10 Exhibit 9 (OMB Competitive Sourcing Plan), # 11 Exhibit 10 (Bertram-Garvey Memo), # 12 Exhibit 11 (Bertram-Belger Memo), # 13 Exhibit 12 (DOT Classification Decision), # 14 Exhibit 13 (Bertram-Blakey Memo), # 15 Exhibit 14 (ATCA Briefing), # 16 Exhibit 15 (April 2003 Briefer), # 17 Exhibit 16 (June 2003 Briefer), # 18 Exhibit 17 (August 2003 Briefer), # 19 Exhibit 18 (Neill Opinion), # 20 Exhibit 19 (Defs Interrogatory Responses), # 21 Exhibit 20 (FAA March 2008 Report to Congress), # 22 Exhibit 21 (Original Savings Estimate), # 23 Exhibit 22 (Reforecast Savings Estimate), # 24 Exhibit 23 (Notice of Intent to Sue), # 25 Exhibit 24 (ODRA Intervention Decision), # 26 Exhibit 25 (ODRA Appeal Decision), # 27 Exhibit 26 (Policy Bulletin 30), # 28 Exhibit 27 (Mineta Determination), # 29 Exhibit 28 (DOT Statement), # 30 Exhibit 29 (NAATS Proposal), # 31 Exhibit 30 (MEO Proposal Vol. VII), # 32 Exhibit 31 (FAA Organizational Chart), # 33 Exhibit 32 (FAA Notice of Intent to Conduct Competition), # 34 Exhibit 33 (September 2007 FAA Report to Congress), # 35 Declaration 34 (Blakey), # 36 Declaration 35 (Courain), # 37 Declaration 36 (DeGaetano), # 38 Declaration Hennigan, # 39 Declaration 38 (Kansier), # 40 Declaration 39 (McDaniel), # 41 Declaration 40 (Mineta), # 42 Declaration 41 (Reyna), # 43 Declaration 42 (Sheridan), # 44 Declaration 43 (Vorce), # 45 Declaration 44 (Washington), # 46 Declaration 45 (Williams), # 47 Exhibit 46 (Dep. Belman), # 48 Exhibit 47 (Dep. Bertram), # 49 Exhibit 48 (Dep. Blakey), # 50 Exhibit 49 (Dep. Breen), # 51 Exhibit 50 (Dep. Brown), # 52 Exhibit 51 (Brydon), # 53 Exhibit 52 (Dep. Campbell), # 54 Exhibit 53 (Dep. Cantu), # 55 Exhibit 54 (Dep. Challan), # 56 Exhibit 55 (Dep. Consalvo), # 57 Exhibit 56 (Dep. Crigler), # 58 Exhibit 57 (Dep. Currier), # 59 Exhibit 58 (Dep. DeGaetano), # 60 Exhibit 59 (Dep. Dodson), # 61 Exhibit 60 (Dep. Eastman), # 62 Exhibit 61 (Dep. Elias), # 63 Exhibit 62 (Dep. Freed), # 64 Exhibit 63 (Dep. Gibson), # 65 Exhibit 64 (Dep. Grace), # 66 Exhibit 65 (Dep. 1st Hennigan), # 67 Exhibit 66 (Dep. 2nd Hennigan), # 68 Exhibit 67 (Dep. Hopkins), # 69 Exhibit 68 (Dep. Jackson-Brame), # 70 Exhibit 69 (Dep. Jaffe), # 71 Exhibit 70 (Dep. Jensen), # 72 Exhibit 71 (Dep. Jones), # 73 Exhibit 72 (Dep. Kansier), # 74 Exhibit 73 (Dep. Kilpatrick), # 75 Exhibit 74 (Dep. Konschake), # 76 Exhibit 75 (Dep. Madera), # 77 Exhibit 76 (Dep. Malon), # 78 Exhibit 77 (Dep. Mitchell), # 79 Exhibit 78 (Dep. Nimmo), # 80 Exhibit 79 (Dep. Olson), # 81 Exhibit 80 (Dep. Pike), # 82 Exhibit 81 (Dep. Reimann), # 83 Exhibit 82 (Dep. Rufo), # 84 Exhibit 83 (Dep. Sheldon), # 85 Exhibit 84 (Dep. Shew), # 86 Exhibit 85 (Dep. Shew), # 87 Exhibit 86 (Dep. Sturgell), # 88 Exhibit 87 (Dep. Sturm), # 89 Exhibit 88 (Dep. Torres), # 90 Exhibit 89 (Dep. Williams), # 91 Exhibit 90 (Dep. Yoo), # 92 Exhibit 91 (Turner Report), # 93 Exhibit 92 (Belman Report), # 94 Exhibit 93 (Carrington Monopsony Report), # 95 Exhibit 94 (Carrington Supp. Report A), # 96 Exhibit 95 (Carrington Supp. Report B), # 97 Exhibit 96 (Siskin Report)) (Kennedy, Brian) (Entered: 04/27/2009)

04/28/2009

MINUTE ORDER: It is hereby ORDERED that the plaintiff's unopposed motion

255 to substitute a party be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 4/28/2009. (DCL) (Entered: 04/28/2009)

04/28/2009

MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 254 for leave to file excess pages be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 4/28/2009. (DCL) (Entered: 04/28/2009)

05/06/2009 257 MOTION to Dismiss James S. Hill by MARION C. BLAKEY, RAY H. LAHOOD (Attachments: # 1 Exhibit 1- Defs First Set of Discovery Requests, # 2 Exhibit 2- Defs 3rd Set of Discovery Requests, # 3 Exhibit 3- Feb. 17, 2009 email, # 4 Exhibit 4- April 27, 2009 email, # 5 Text of Proposed Order)(Kirschner, Adam) (Entered: 05/06/2009)

05/13/2009 258 Consent MOTION for Extension of Time to File Response/Reply as to 256 MOTION for Summary Judgment and Plaintiffs' Cross-Motion for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 05/13/2009)

06/08/2009 259 Consent MOTION for Extension of Time to File Response/Reply as to 256 MOTION for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 06/08/2009)

06/10/2009 260 Consent MOTION for Extension of Time to File Opposition to Summary Judgment and Cross-Motion by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 06/10/2009)

06/10/2009

MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 259 to extend the deadline to file their opposition and cross-motion to June 10, 2009 be, and hereby is, GRANTED. It is further ORDERED that plaintiffs' previous motion 258 for an extension be, and hereby is, GRANTED nunc pro tunc. Issued by Judge Richard W. Roberts on 6/10/2009. (DCL) (Entered: 06/10/2009)

06/15/2009 261 WITHDRAWN (see minute entry dated 9/28/16)...............Cross MOTION for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Statement of Material Facts in Opposition to Defendants)(Day, Charles) (Entered: 06/15/2009)

06/15/2009 262 Memorandum in opposition to re 256 MOTION for Summary Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 Statement of Facts)(Day, Charles) (Entered: 06/15/2009)

06/16/2009 263 NOTICE of Filing re 261 Cross MOTION for Summary Judgment, 262 Memorandum in opposition to re 256 MOTION for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 List of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 7A, # 10 Exhibit 7B, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 12A, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52,

# 55 Exhibit 53, # 56 Exhibit 54, # 57 Text of Proposed Order)(Day, Charles) Modified to add linkage on 6/17/2009 (jf, ). (Entered: 06/16/2009)

06/16/2009 264 MOTION for Leave to File by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 Statement of Facts, # 2 Text of Proposed Order)(Day, Charles) (Entered: 06/16/2009)

06/23/2009 265 Consent MOTION for Leave to File Corrections to Citations, Typographical Errors, and Exhibits by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Corrected Motion and Opposition, # 3 Corrected Statement of Undisputed Material Facts, # 4 Corrected Statement of Material Facts in Opposition to Defendants, # 5 Exhibit 3, # 6 Exhibit 5, # 7 Exhibit 9, # 8 Exhibit 12, # 9 Exhibit 12A, # 10 Exhibit 13, # 11 Exhibit 17, # 12 Exhibit 20, # 13 Exhibit 21, # 14 Exhibit 22, # 15 Exhibit 23, # 16 Exhibit 24, # 17 Exhibit 25, # 18 Exhibit 26, # 19 Exhibit 27, # 20 Exhibit 27A, # 21 Exhibit 27B, # 22 Exhibit 28, # 23 Exhibit 32, # 24 Exhibit 33, # 25 Exhibit 34, # 26 Exhibit 35, # 27 Exhibit 36, # 28 Exhibit 38, # 29 Exhibit 39, # 30 Exhibit 40, # 31 Exhibit 41, # 32 Exhibit 43, # 33 Exhibit 44, # 34 Exhibit 45, # 35 Exhibit 46, # 36 Exhibit 47, # 37 Exhibit 48, # 38 Exhibit 49, # 39 Exhibit 50, # 40 Exhibit 52, # 41 Exhibit 53, # 42 Exhibit 54, # 43 Exhibit 55, # 44 Exhibit 56, # 45 Exhibit 58, # 46 Exhibit 59, # 47 Exhibit 60, # 48 Exhibit 61, # 49 Exhibit 62, # 50 List of Exhibits Corrected or Added)(Day, Charles) (Entered: 06/23/2009)

06/25/2009

MINUTE ORDER: It is hereby ORDERED that the plaintiffs' consent motion 265 for leave to file corrections to citations, typographical errors, and exhibits be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 6/25/2009. (DCL) (Entered: 06/25/2009)

06/25/2009

MINUTE ORDER: It is hereby ORDERED that defendants' motion 243 to dismiss plaintiff Eddie Krenzelok be, and hereby is, GRANTED as unopposed. Issued by Judge Richard W. Roberts on 6/25/2009. (DCL) (Entered: 06/25/2009)

06/25/2009

MINUTE ORDER: It is hereby ORDERED that defendants' motion 257 to dismiss plaintiff James S. Hill be, and hereby is, GRANTED as unopposed. Issued by Judge Richard W. Roberts on 6/25/2009. (DCL) (Entered: 06/25/2009)

07/07/2009

MINUTE ORDER: It is hereby ORDERED that the plaintiffs' motion 264 for leave to file plaintiffs' statement of material facts one day out of time be, and hereby is, GRANTED nunc pro tunc. Issued by Judge Richard W. Roberts on 7/7/2009. (DCL) (Entered: 07/07/2009)

07/07/2009 266 NOTICE of Statement of Material Facts Not in Dispute by ALL PLAINTIFFS re 261 Cross MOTION for Summary Judgment (nmw, ) (Entered: 07/08/2009)

07/16/2009 267 Consent MOTION to Dismiss Plaintiff James A. Fancher by ALL PLAINTIFFS (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 07/16/2009)

08/26/2009 268 Memorandum in opposition to re 261 Cross MOTION for Summary Judgment, 265 Consent MOTION for Leave to File Corrections to Citations, Typographical Errors, and Exhibits filed by MARION C. BLAKEY, RAY H. LAHOOD. (Attachments: # 1 Statement of Facts Opposition, # 2 Text of Proposed Order, # 3 Exhibit 1- Belman Dep Excerpts, # 4 Exhibit 2- Jackson-Brame Excerpts, # 5

Exhibit 3- Nimmo Depo Excerpts, # 6 Exhibit 4- Blakey Depo Excerpts, # 7 Exhibit 5- Bertram Presentation to Administrator, # 8 Exhibit 6- Pike Depo Excerpts, # 9 Exhibit 7- Williams Depo Excerpts, # 10 Exhibit 8- Defs Resp to Pls Rog 24, # 11 Exhibit 9- Little Depo Excerpts, # 12 Exhibit 10- Freed Depo Excerpts, # 13 Exhibit 11- Page Depo Excerpts, # 14 Exhibit 12- Sturgell Depo Excerpts, # 15 Exhibit 13- Defs Resp to Pls Rog 13, # 16 Exhibit 14- Mitchell Depo Excerpts, # 17 Exhibit 15- Hennigan Depo I Excerpts, # 18 Exhibit 16Grant Thornton Feas. Study, # 19 Exhibit 17- Tryon Depo Excerpts, # 20 Exhibit 18- Carrington Depo Excerpts)(Kennedy, Brian) (Entered: 08/26/2009)

08/26/2009 269 REPLY to opposition to motion re 256 MOTION for Summary Judgment filed by MARION C. BLAKEY, RAY H. LAHOOD. (Attachments: # 1 Exhibit 1- Belman Depo Excerpts, # 2 Exhibit 2- Jackson-Brame Depo Excerpts, # 3 Exhibit 3Nimmo Depo Excerpts, # 4 Exhibit 4- Blakey Depo Excerpts, # 5 Exhibit 5Bertram Presentation to Administrator, # 6 Exhibit 6- Pike Depo Excerpts, # 7 Exhibit 7- Williams Depo Excerpts, # 8 Exhibit 8- Defs Resp to Pls Rog 24, # 9 Exhibit 9- Little Depo Excerpts, # 10 Exhibit 10- Freed Depo Excerpts, # 11 Exhibit 11- Page Depo Excerpts, # 12 Exhibit 12- Sturgell Depo Excerpts, # 13 Exhibit 13- Defs Resp to Pls Rog 13, # 14 Exhibit 14- Mitchell Depo Excerpts, # 15 Errata 15- Hennigan I Depo Excerpts, # 16 Exhibit 16- Grant Thornton Feas. Study, # 17 Exhibit 17- Tryon Depo Excerpts, # 18 Exhibit 18- Carrington Depo Excerpts)(Kennedy, Brian) (Entered: 08/26/2009)

09/04/2009 270 Consent MOTION for Extension of Time to File Response/Reply as to 261 Cross MOTION for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 09/04/2009)

09/24/2009

MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 270 for an extension through October 2, 2009 of the deadline to file their reply to the defendants' opposition to the plaintiffs' cross-motion for summary judgment be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 9/24/2009. (DCL) (Entered: 09/24/2009)

09/24/2009

Set/Reset Deadlines: Plaintiff's Reply due by 10/2/2009. (hs) (Entered: 09/24/2009)

10/02/2009 271 REPLY to opposition to motion re 261 Cross MOTION for Summary Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 List of Exhibits, # 2 Exhibit 63, # 3 Exhibit 64 (SEALED), # 4 Exhibit 65, # 5 Exhibit 66, # 6 Exhibit 67, # 7 Exhibit 68, # 8 Exhibit 69, # 9 Exhibit 70, # 10 Exhibit 71, # 11 Text of Proposed Order)(Garon, Lenore) Modified on 11/3/2009 (zjf, ). (Entered: 10/02/2009)

11/03/2009 272 Unopposed MOTION to Substitute Party by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 - Letter of Instruction, # 2 Exhibit 2 - Death Certificate, # 3 Exhibit 3 Letters of Administration, # 4 Text of Proposed Order)(Garon, Lenore) (Entered: 11/03/2009)

11/06/2009 273 ERRATA by ALL PLAINTIFFS 271 Reply to opposition to Motion, filed by ALL PLAINTIFFS. (Attachments: # 1 Errata Substitute Exhibit 64)(Garon, Lenore) (Entered: 11/06/2009)

12/15/2010 274 NOTICE of Filing by ALL PLAINTIFFS (Garon, Lenore) (Entered: 12/15/2010)

01/03/2011 275 Response to Plaintiffs' 274 Notice of Filing by RAY H. LAHOOD (Marcus, Lisa) Modified on 1/4/2011 to enhance docket text (jf, ). (Entered: 01/03/2011)

01/13/2011 276 REPLY re 274 Notice (Other) filed by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 01/13/2011)

04/29/2011 277 NOTICE of Filing by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 04/29/2011)

02/24/2012 278 SUGGESTION OF DEATH Upon the Record as to Plaintiff Daniel J. Holodick by MARION C. BLAKEY, RAY H. LAHOOD, NORMAN Y. MINETA. (Kennedy, Brian) (Entered: 02/24/2012)

03/19/2012 279 Consent MOTION to Substitute Party by ALL PLAINTIFFS (Attachments: # 1 Executrix Administration, # 2 Death Certificate, # 3 Letters of Administration, # 4 Proposed Order)(Garon, Lenore) (Entered: 03/19/2012)

11/13/2013 280 NOTICE OF NAME CHANGE OF PLAINTIFF LARRY JOE RUBITSKY by ALL PLAINTIFFS (Attachments: # 1 Exhibit)(Gebhardt, Joseph) (Entered: 11/13/2013)

05/21/2014 281 MOTION to Expedite Consideration of Cross-Motions for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration, # 8 Declaration, # 9 Declaration, # 10 Declaration, # 11 Text of Proposed Order) (Gebhardt, Joseph) (Entered: 05/21/2014)

04/01/2016

Case directly reassigned to Judge Paul L. Friedman. Judge Richard W. Roberts has retired and is no longer assigned to the case. (ztnr) (Entered: 04/01/2016)

04/18/2016 282 Mail Returned as undeliverable. sent to Janice I. Teed Wilson; Type of Document Returned: 4/1/2016 notice of case reassignment; No new address on file. (zmm) (Entered: 04/20/2016)

04/28/2016 283 NOTICE of Appearance by Gary M. Gilbert on behalf of ALL PLAINTIFFS (Gilbert, Gary) (Entered: 04/28/2016)

04/28/2016 284 NOTICE of Appearance by Joseph M. Sellers on behalf of ALL PLAINTIFFS (Sellers, Joseph) (Entered: 04/28/2016)

05/04/2016 285 STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 05/04/2016)

05/09/2016

MINUTE ORDER denying 260 plaintiffs' Motion for an Additional Three-Day Extension as moot, granting 267 plaintiff James A. Fancher's Consent Motion for Voluntary Dismissal such that he is dismissed as a plaintiff in this case, granting 272 plaintiffs' Consent Motion for Substitution such that the Estate of Kevin S. Diehl, via his personal representative, Diana Diehl, is substituted for deceased plaintiff Kevin S. Diehl, and granting 279 plaintiffs' Consent Motion for Substitution such that the Estate of Daniel J. Holodick, via his personal representative, Carol J. Holodick, is substituted for deceased plaintiff Daniel J. Holodick. Signed by Judge Paul L. Friedman on May 9, 2016. (MA) (Entered: 05/09/2016)

05/10/2016 286 TRANSCRIPT OF PROCEEDINGS before Judge Richard W. Roberts held on 27-07; Page Numbers: (1-11). Date of Issuance:4-27-16. Court Reporter/Transcriber Scott Wallace, Telephone number 202-354-3196, Transcripts

may be ordered by submitting the <a href=http://www.dcd.uscourts.gov/dcd/node/2189>Transcript Order Form.</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 5/31/2016. Redacted Transcript Deadline set for 6/10/2016. Release of Transcript Restriction set for 8/8/2016.(Wallace, Scott) (Entered: 05/10/2016)

06/30/2016

MINUTE ORDER directing the parties to appear for a status conference on July 12, 2016 at 10:00 a.m. so that counsel can update the Court on the background and status of the case, including, inter alia, whether: (1) the formerly pro se plaintiffs are now represented by those counsel who recently 283 284 entered their appearances; (2) there is a need for new briefing on the cross motions for summary judgment; and (3) the parties are amenable to mediation. (So Ordered Judge Paul L. Friedman, on 6/30/16) (lcplf) (Entered: 06/30/2016)

07/01/2016

Set/Reset Hearings: Status Conference set for 7/12/2016 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. (tj) (Entered: 07/01/2016)

07/01/2016 287 Consent MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 07/01/2016)

07/06/2016 288 ORDER granting 287 Motion to Withdraw as Attorney on behalf of plaintiffs. Attorney Charles Williamson Day, Jr terminated. Signed by Judge Paul L. Friedman on July 6, 2016. (MA) (Entered: 07/06/2016)

07/11/2016 289 NOTICE of Appearance by Linda Anton Kincaid on behalf of ALL PLAINTIFFS (Kincaid, Linda) (Entered: 07/11/2016)

07/11/2016 290 Second STATUS REPORT by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Sellers, Joseph) (Entered: 07/11/2016)

07/12/2016

Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 7/12/2016. Parties advise the court of the status of this action. Parties to submit an alternate proposal by 7/22/16, which shall advise the court on how to further proceed in this action. (Court Reporter: Elizabeth Saint Loth. (tj) (Entered: 07/13/2016)

07/13/2016 291 Unopposed MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Rainey, Valencia) (Entered: 07/13/2016)

07/15/2016 292 ENTERED IN ERROR.....TRANSCRIPT OF PROCEEDINGS before Judge Paul L. Friedman held on 7-12-2016; Page Numbers: 1 - 66. Date of Issuance:7-15-

2016. Court Reporter/Transcriber Elizabeth Saintloth, Telephone number 202354-3242, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 8/5/2016. Redacted Transcript Deadline set for 8/15/2016. Release of Transcript Restriction set for 10/13/2016.(Saint-Loth, Elizabeth) Modified on 7/19/2016 (zrdj). (Entered: 07/15/2016)

07/19/2016

NOTICE OF CORRECTED DOCKET ENTRY: re 292 Transcript was entered in error and will be refiled. (zrdj) (Entered: 07/19/2016)

07/19/2016 293 TRANSCRIPT OF STATUS CONFERENCE and COLLOQUY before Judge Paul L. Friedman held on 07-12-2016; Page Numbers: 1 - 66. Date of Issuance:07-19-2016. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202-354-3242, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/9/2016. Redacted Transcript Deadline set for 8/19/2016. Release of Transcript Restriction set for 10/17/2016.(Saint-Loth, Elizabeth) (Entered: 07/19/2016)

07/20/2016 294 ENTERED IN ERROR.....ORDER granting 291 Valencia R. Rainey's Consent Motion to Withdraw as Attorney on behalf of plaintiffs. Attorney Valencia R. Rainey terminated. Signed by Judge Paul L. Friedman on July 20, 2016. (MA) Modified on 10/13/2016 (znmw). (Entered: 07/20/2016)

07/20/2016

DOCKET #294 ENTERED IN ERROR -- PLEASE DISREGARD. (MA) (Entered: 07/20/2016)

07/20/2016 295 ORDER granting 291 Valencia R. Rainey's Consent Motion to Withdraw as

Attorney on behalf of plaintiffs. Attorney Valencia R. Rainey terminated. Signed by Judge Paul L. Friedman on July 20, 2016. (MA) (Entered: 07/20/2016)

07/22/2016 296 NOTICE of Joint Scheduling Proposal by ALL PLAINTIFFS (Sellers, Joseph) (Entered: 07/22/2016)

07/25/2016 297 Letter from Tom Domingo; ("Let this be filed." by Judge Paul L. Friedman) (td) (Entered: 07/26/2016)

07/28/2016 298 RESPONSE re 290 Status Report filed by MARION C. BLAKEY, RAY H. LAHOOD. (Attachments: # 1 Exhibit A)(Marcus, Lisa) (Entered: 07/28/2016)

07/29/2016 299 SCHEDULING ORDER. Signed by Judge Paul L. Friedman on July 29, 2016. (MA) (Entered: 07/29/2016)

08/01/2016

Set/Reset Deadlines: Supplemental Briefs due by 9/30/2016. Motions due by 10/21/2016. Responses due by 11/1/2016. Consolidated opposition due by 11/22/2016. Replies due by 12/22/2016. (hs) (Entered: 08/01/2016)

08/18/2016 300 Unopposed MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Gebhardt, Daniel) (Entered: 08/18/2016)

08/18/2016

MINUTE ORDER granting 300 attorney Daniel K. Gebhardt's Unopposed Motion to Withdraw as Attorney for Plaintiffs. Signed by Judge Paul L. Friedman on August 18, 2016. (lcplf2) (Entered: 08/18/2016)

08/25/2016 301 NOTICE of Appearance by Shaylyn Capri Cochran on behalf of All Plaintiffs (Cochran, Shaylyn) (Entered: 08/25/2016)

08/25/2016 302 NOTICE of Appearance by Stephanie Marie Herrera on behalf of ALL PLAINTIFFS (Herrera, Stephanie) (Entered: 08/25/2016)

08/29/2016 303 NOTICE of Appearance by Brian Christopher Corman on behalf of All Plaintiffs (Corman, Brian) (Entered: 08/29/2016)

09/09/2016 304 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lisa R. Sandoval, :Firm- Law Offices of Gary M. Gilbert & Associates PC, :Address1100 Wayne Avenue, Suite 900 Silver Spring, MD 20910. Phone No. - 301-6080880. Fax No. - 301-608-0881 Filing fee $ 100, receipt number 0090-4667825. Fee Status: Fee Paid. by ALL PLAINTIFFS (Attachments: # 1 Declaration In support of motion, # 2 Text of Proposed Order)(Kincaid, Linda) (Entered: 09/09/2016)

09/12/2016 305 ORDER granting 304 motion for admission pro hac vice of Lisa R. Sandoval on behalf of plaintiffs. Signed by Judge Paul L. Friedman on September 12, 2016. (MA) (Entered: 09/12/2016)

09/23/2016

MINUTE ORDER directing plaintiffs to comply with 299 the Court's July 29, 2016 Scheduling Order by withdrawing 261 their cross-motion for summary judgment on or before September 28, 2016. Signed by Judge Paul L. Friedman on September 23, 2016. (MA) (Entered: 09/23/2016)

09/23/2016

MINUTE ORDER denying without prejudice 281 plaintiffs' motion to expedite resolution of the cross-motions for summary judgment in light of the ongoing briefing schedule that the Court ordered in 299 its July 29, 2016 Scheduling

Order. Signed by Judge Paul L. Friedman on September 23, 2016. (MA) (Entered: 09/23/2016)

09/27/2016 306 Unopposed MOTION to Withdraw 261 Cross MOTION for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Sellers, Joseph) (Entered: 09/27/2016)

09/28/2016

MINUTE ORDER granting 306 plaintiffs' unopposed motion to withdraw 261 their cross-motion for summary judgment. Signed by Judge Paul L. Friedman on September 28, 2016. (lcplf2) (Entered: 09/28/2016)

09/28/2016

MINUTE ORDER withdrawing 261 plaintiffs' cross-motion for summary judgment in light of the Court's minute order granting 306 plaintiffs' unopposed motion to withdraw the cross-motion for summary judgment. Signed by Judge Paul L. Friedman on September 28, 2016. (lcplf2) (Entered: 09/28/2016)

09/29/2016 307 NOTICE OF FILING REGARDING THE INDIVIDUALS WHO HAVE RETAINED PLAINTIFFS COUNSEL by ALL PLAINTIFFS (Attachments: # 1 Attachment A, # 2 Attachment B)(Kincaid, Linda) (Entered: 09/29/2016)

09/30/2016 308 NOTICE of Appearance by Michal Shinnar on behalf of ALL PLAINTIFFS (Shinnar, Michal) (Entered: 09/30/2016)

09/30/2016 309 REPLY to opposition to motion re 256 MOTION for Summary Judgment (Supplemental) filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Sellers, Joseph) (Entered: 09/30/2016)

09/30/2016 310 SUPPLEMENTAL MEMORANDUM to re 256 MOTION for Summary Judgment filed by MARION C. BLAKEY, RAY H. LAHOOD. (Attachments: # 1 Certificate of Service)(Kennedy, Brian) (Entered: 09/30/2016)

10/11/2016 311 TRANSCRIPT OF PROCEEDINGS before Judge Richard W. Roberts held on 9/14/07; Page Numbers: (1-11). Date of Issuance:10/11/16. Court Reporter/Transcriber Scott Wallace, Telephone number 202-354-3196, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 11/1/2016. Redacted Transcript Deadline set for 11/11/2016. Release of Transcript Restriction set for 1/9/2017.(Wallace, Scott) (Entered: 10/11/2016)

10/19/2016 312 Consent MOTION for Extension of Time to File Motions for Reconsideration by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Gilbert, Gary)

(Entered: 10/19/2016)

10/20/2016

MINUTE ORDER granting 312 plaintiffs' consent motion for extension of time. The proposed joinder individuals and the dismissed plaintiffs may file a motion (or motions) for reconsideration of the denial of their joinder or the dismissal of their claims on or before October 31, 2016. Defendants shall file a consolidated opposition, if any, to the proposed joinder and dismissed plaintiffs' motion (or motions) for reconsideration on or before December 2, 2016. The proposed joinder and dismissed plaintiffs shall file a reply (or replies), if any, to defendants' opposition to their motions for reconsideration on or before January 3, 2017. Other deadlines in 299 the Court's July 29, 2016 scheduling order remain unchanged. Signed by Judge Paul L. Friedman on October 20, 2016. (MA) (Entered: 10/20/2016)

10/20/2016

Set/Reset Deadlines: Motions due by 10/31/2016. Responses due by 12/2/2016 Replies due by 1/3/2017. (hs) (Entered: 10/20/2016)

10/28/2016 313 NOTICE OF FILING REGARDING THE INDIVIDUALS WHO HAVE RETAINED PLAINTIFFS COUNSEL by ALL PLAINTIFFS (Attachments: # 1 Attachment A, # 2 Attachment B)(Kincaid, Linda) (Entered: 10/28/2016)

10/31/2016 314 Consent MOTION for Extension of Time to File Response/Reply to Supplemental Briefs by MARION C. BLAKEY, RAY H. LAHOOD (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 10/31/2016)

10/31/2016 315 NOTICE OF FILING REGARDING CHANGES IN ADDRESSES FOR PLAINTIFFS NOT RECEIVING ELECTRONIC CASE FILING NOTICES by ALL PLAINTIFFS (Kincaid, Linda) (Entered: 10/31/2016)

10/31/2016 316 MOTION for Reconsideration re 122 Memorandum & Opinion, 181 Order on Motion for Reconsideration by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1)(Gilbert, Gary) (Entered: 10/31/2016)

10/31/2016 317 MOTION for Reconsideration re 151 Order dismissing certain Plaintiffs who failed to respond to Orders 107, 123 to show cause, 245 dismissing certain Plaintiffs who failed to respond to Order 206 to show cause by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E) (Gilbert, Gary) (Entered: 10/31/2016)

11/01/2016

MINUTE ORDER granting 314 consent motion to extend deadline for parties to file responses to supplemental briefs. Plaintiffs and defendants shall simultaneously file responses to the opposing party's supplemental brief, if any, of no more than 20 pages each on or before November 22, 2016. Signed by Judge Paul L. Friedman on November 1,2016. (MA) (Entered: 11/01/2016)

11/02/2016 318 NOTICE of Appearance by Meghan Alexis Droste on behalf of ALL PLAINTIFFS (Droste, Meghan) (Entered: 11/02/2016)

11/02/2016 319 ERRATA by ALL PLAINTIFFS 309 Reply to opposition to Motion, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 6)(Kincaid, Linda) (Entered: 11/02/2016)

11/03/2016 320 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS.

Attorney Lisa R. Sandoval terminated. (Attachments: # 1 Declaration of Kathleen Breen)(Sandoval, Lisa) (Entered: 11/03/2016)

11/03/2016 321 MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 11/03/2016)

11/04/2016 322 ORDER granting 321 Joseph D. Gebhardt's Motion to Withdraw as Attorney for plaintiffs. Attorney Joseph D. Gebhardt terminated. Signed by Judge Paul L. Friedman on November 4, 2016. (MA) (Entered: 11/04/2016)

11/18/2016 323 MOTION for Reconsideration re 322 Order on Motion to Withdraw as Attorney by MARION C. BLAKEY, NORMAN Y. MINETA (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Certificate of Service)(Marcus, Lisa) (Entered: 11/18/2016)

11/22/2016 324 ENTERED IN ERROR. . . . .SUPPLEMENTAL MEMORANDUM to re 310 Supplemental Memorandum (Response to Def. Supplemental Brief In Support of Def. Motion for Summary Judgment) filed by ALL PLAINTIFFS. (Sellers, Joseph) Modified on 11/23/2016 (td). (Entered: 11/22/2016)

11/22/2016 325 RESPONSE to re 310 Supplemental Memorandum (CORRECTED) filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit)(Sellers, Joseph) Modified text to response on 11/23/2016 (zd). (Entered: 11/22/2016)

11/22/2016 326 SUPPLEMENTAL MEMORANDUM to re 256 MOTION for Summary Judgment filed by MARION C. BLAKEY, RAY H. LAHOOD, NORMAN Y. MINETA. (Kennedy, Brian) (Entered: 11/22/2016)

11/23/2016

NOTICE OF CORRECTED DOCKET ENTRY: re 324 Supplemental Memorandum was entered in error and counsel refiled said pleading as docket entry no. 325 . (td) (Entered: 11/23/2016)

12/02/2016 327 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ALL PLAINTIFFS (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Letter to the Court)(Gebhardt, Joseph) (Entered: 12/02/2016)

12/02/2016 328 RESPONSE re 323 MOTION for Reconsideration re 322 Order on Motion to Withdraw as Attorney filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit, # 2 Exhibit)(Sellers, Joseph) (Entered: 12/02/2016)

12/02/2016 329 NOTICE OF SUBSTITUTION OF COUNSEL by Elizabeth L. Kade on behalf of All Defendants Substituting for attorney Marcia Berman, Tim H. Nusraty, and William B. Jaffe (Kade, Elizabeth) (Entered: 12/02/2016)

12/02/2016 330 Memorandum in opposition to re 317 MOTION for Reconsideration re 151 Order dismissing certain Plaintiffs who failed to respond to Orders 107, 123 to show cause, 245 dismissing certain Plaintiffs who failed to respond to Order 206 to show cause filed by MARION C. BLAKEY, RAY H. LAHOOD. (Attachments: # 1 Exhibit A)(Kirschner, Adam) (Entered: 12/02/2016)

12/02/2016 331 Memorandum in opposition to re 316 MOTION for Reconsideration re 122 Memorandum & Opinion, 181 Order on Motion for Reconsideration filed by MARION C. BLAKEY, RAY H. LAHOOD, NORMAN Y. MINETA. (Attachments: # 1 Exhibit 1 - Eastman Depo)(Kade, Elizabeth) (Entered: 12/02/2016)

12/07/2016 333 SEALED DOCUMENT (Joseph G. Gebhardt's Letter) filed by ALL PLAINTIFFS. (This document is SEALED and only available to authorized persons.)(znmw) (Entered: 12/08/2016)

12/14/2016 334 MEMORANDUM OPINION AND ORDER denying defendants' motion for partial reconsideration of order granting Gebhardt's motion to withdraw from representation; and plaintiffs' new counsel shall submit a status report on or before January 4, 2017. Signed by Judge Paul L. Friedman on December 14, 2016. (MA) (Entered: 12/14/2016)

01/03/2017 335 REPLY to opposition to motion re 317 MOTION for Reconsideration re 151 Order dismissing certain Plaintiffs who failed to respond to Orders 107, 123 to show cause, 245 dismissing certain Plaintiffs who failed to respond to Order 206 to show cause filed by ALL PLAINTIFFS. (Kincaid, Linda) (Entered: 01/03/2017)

01/03/2017 336 REPLY to opposition to motion re 316 MOTION for Reconsideration re 122 Memorandum & Opinion, 181 Order on Motion for Reconsideration filed by ALL PLAINTIFFS. (Attachments: # 1 Declaration of Leoni Bloomfield Benjamin) (Kincaid, Linda) (Entered: 01/03/2017)

01/04/2017 337 Third STATUS REPORT by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Active Plaintiffs Represented by Plaintiffs Counsel, # 2 Exhibit Obituary of H. Nagel, # 3 Exhibit Plaintiffs Denied Joinder Who Retained Plaintiffs Counsel, # 4 Exhibit Dismissed Plaintiffs Who Have Retained Plaintiffs Counsel, # 5 Exhibit Dismissed Plaintiffs Considering Representation, # 6 Exhibit Dismissed Plaintiffs: Mailings Returned as Undeliverable, # 7 Exhibit Dismissed Plaintiffs with No Response, # 8 Exhibit Dismissed Plaintiffs Not Interested in Pursuing This Case, # 9 Exhibit Plaintiffs' Counsel's Letter to Defendants)(Kincaid, Linda) (Entered: 01/04/2017)

01/13/2017 338 Unopposed MOTION for Protective Order by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Attachment A, # 3 Privacy Act Protective Order) (Gilbert, Gary) (Entered: 01/13/2017)

01/18/2017 339 NOTICE of Proposed Order by ALL PLAINTIFFS re 338 Unopposed MOTION for Protective Order (Attachments: # 1 Text of Proposed Order (Amended)) (Sellers, Joseph) (Entered: 01/18/2017)

01/23/2017 340 Privacy Act Protective Order. Signed by Judge Paul L. Friedman on January 23, 2017. (MA) (Entered: 01/23/2017)

01/23/2017

MINUTE ORDER granting 338 plaintiffs' unopposed motion for entry of Privacy Act Protective Order. See Docket #340 for signed and approved Privacy Act Protective Order. Signed by Judge Paul L. Friedman on January 23, 2017. (MA) (Entered: 01/23/2017)

03/30/2017 341 MOTION for Extension of Time to File Notice of Substitution of Estate for Plaintiff Herbert Nagel by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Kincaid, Linda) (Entered: 03/30/2017)

03/31/2017 342 RESPONSE re 341 MOTION for Extension of Time to File Notice of Substitution of Estate for Plaintiff Herbert Nagel filed by MARION C. BLAKEY, RAY H. LAHOOD, NORMAN Y. MINETA. (Kennedy, Brian) (Entered: 03/31/2017)

04/06/2017

MINUTE ORDER granting 341 plaintiffs' motion for an extension of time nunc pro tunc up to and including August 4, 2017, to file a motion to substitute the estate of plaintiff Herbert Nagel. Signed by Judge Paul L. Friedman on April 6, 2017. (MA) (Entered: 04/06/2017)

05/26/2017 343 ORDER granting in part and denying in part 256 defendants' motion for summary judgment. Judgment is entered for defendants on plaintiffs' disparate impact claim. Signed by Judge Paul L. Friedman on May 26, 2017. (MA) (Entered: 05/26/2017)

05/26/2017 344 OPINION granting defendants' motion with respect to plaintiffs' disparate impact claim and denying defendants' motion with respect to plaintiffs' disparate treatment claim. An Order consistent with this Opinion shall issue this same day. Signed by Judge Paul L. Friedman on May 26, 2017. (MA) (Entered: 05/26/2017)

05/31/2017 345 NOTICE OF WITHDRAWAL OF APPEARANCE as to MARION C. BLAKEY, ELAINE L. CHAO. Attorney Brian G. Kennedy terminated. (Kennedy, Brian) (Entered: 05/31/2017)

06/30/2017 346 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Meghan Alexis Droste terminated. (Attachments: # 1 Declaration of Kathleen Breen)(Droste, Meghan) (Entered: 06/30/2017)

08/03/2017 347 MOTION to Substitute Estate of Plaintiff Herbert Nagel by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Catherine Nagel, # 2 Death Certificate of Herbert Nagel, # 3 Declaration of Catherine Nagel, # 4 Text of Proposed Order) (Kincaid, Linda) (Entered: 08/03/2017)

08/09/2017 348 MOTION for Hearing Request for Status Conference by ALL PLAINTIFFS (Attachments: # 1 Exhibit Attachment 1- Active Plaintiffs who have retained Plaintiffs' counsel, # 2 Exhibit Attachment 2- Plaintiffs denied joinder who have retained Plaintiffs' counsel, # 3 Exhibit Attachment 3- Dismissed Plaintiffs who have retained Plaintiffs' counsel, # 4 Exhibit Attachment 4- Dismissed Plaintiffs not interested in pursuing this case)(Sellers, Joseph) Modified event title on 8/10/2017 (znmw). (Entered: 08/09/2017)

08/11/2017 349 RESPONSE re 348 MOTION for Hearing filed by MARION C. BLAKEY, ELAINE L. CHAO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Marcus, Lisa) (Entered: 08/11/2017)

08/16/2017 350 Amended MOTION to Substitute Estate of Plaintiff Herbert Nagel by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/16/2017)

08/17/2017 351 ORDER granting 347 350 plaintiffs' motion to substitute the estate of Herbert W. Nagel. Signed by Judge Paul L. Friedman on August 17, 2017. (lcplf2) (Entered: 08/17/2017)

08/17/2017

MINUTE ORDER denying 348 plaintiffs' motion for a status conference because a status conference is premature until the Court decides 316 317 plaintiffs' two pending motions for reconsideration. Signed by Judge Paul L. Friedman on August 17, 2017. (lcplf2) (Entered: 08/17/2017)

08/18/2017 352 MOTION to Substitute Estate of Plaintiff Christopher Beale by ALL

PLAINTIFFS (Attachments: # 1 Letter of Substitution for Barbara Hoyt, # 2 Death Certificate for Christopher Beale, # 3 Letters Testamentary for Barbara Hoyt, # 4 Certificate of Marriage for Barbara Hoyt, # 5 Text of Proposed Order) (Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 353 MOTION to Substitute Estate of Plaintiff Craig Marcus by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Patricia Marcus, # 2 Death Certificate of Craig Marcus, # 3 Declaration of Patricia Marcus, # 4 Last Will and Testament of Craig Marcus, # 5 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 354 MOTION to Substitute Estate of Donald Northover by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Nyoka Northover, # 2 Death Certificate of Donald Northover, # 3 Declaration of Nyoka Northover, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 355 MOTION to Substitute Estate of Fred Lippi by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Monica Lippi, # 2 Death Certificate of Fred Lippi, # 3 Declaration of Monica Lippi, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 356 MOTION to Substitute Estate of John Schweigert by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Aaron Schweigert, # 2 Death Certificate of John Schweigert, # 3 Letters of Administration for Aaron Schweigert, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 357 MOTION to Substitute Estate of Plaintiff Larry Johnston by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Deborah Johnston, # 2 Death Certificate of Larry Johnston, # 3 Declaration of Deborah Johnston, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 358 MOTION to Substitute Estate of Plaintiff Maurita Potter by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Veronica Missouri, # 2 Death Certificate of Maurita Potter, # 3 Letters of Administration for Veronica Missouri, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 359 MOTION to Substitute Estate of Plaintiff Nancy Sutton by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Carolyn Bixler, # 2 Death Certificate of Nancy Sutton, # 3 Letters Testamentary for Carolyn Bixler, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 360 MOTION to Substitute Estate of Plaintiff Robert Marshall by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for William Marshall and Melissa Ross, # 2 Death Certificate of Robert Marshall, # 3 Order appointing William Marshall and Melissa Ross as Special Administrators, # 4 Letters of Special Administration for William Marshall and Melissa Ross, # 5 Text of Proposed Order)(Kincaid, Linda) (Entered: 08/18/2017)
08/18/2017 361 MOTION to Substitute Estate of Plaintiff Tommy Forte by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Mary Forte, # 2 Death Certificate of Tommy Forte, # 3 Declaration of Mary Forte, # 4 Text of Proposed Order) (Kincaid, Linda) (Entered: 08/18/2017)
09/01/2017 362 RESPONSE re 356 MOTION to Substitute Estate of John Schweigert, 360

MOTION to Substitute Estate of Plaintiff Robert Marshall, 354 MOTION to Substitute Estate of Donald Northover, 361 MOTION to Substitute Estate of Plaintiff Tommy Forte, 359 MOTION to Substitute Estate of Plaintiff Nancy Sutton, 357 MOTION to Substitute Estate of Plaintiff Larry Johnston, 353 MOTION to Substitute Estate of Plaintiff Craig Marcus, 358 MOTION to Substitute Estate of Plaintiff Maurita Potter, 355 MOTION to Substitute Estate of Fred Lippi, 352 MOTION to Substitute Estate of Plaintiff Christopher Beale --Defendants' Omnibus Opposition to Dkt. Nos. 352-361 filed by MARION C. BLAKEY, ELAINE L. CHAO. (Attachments: # 1 Exhibit A)(Marcus, Lisa) (Entered: 09/01/2017)

09/08/2017 363 REPLY to opposition to motion re 356 MOTION to Substitute Estate of John Schweigert, 360 MOTION to Substitute Estate of Plaintiff Robert Marshall, 354 MOTION to Substitute Estate of Donald Northover, 361 MOTION to Substitute Estate of Plaintiff Tommy Forte, 359 MOTION to Substitute Estate of Plaintiff Nancy Sutton, 357 MOTION to Substitute Estate of Plaintiff Larry Johnston, 353 MOTION to Substitute Estate of Plaintiff Craig Marcus, 358 MOTION to Substitute Estate of Plaintiff Maurita Potter, 355 MOTION to Substitute Estate of Fred Lippi, 352 MOTION to Substitute Estate of Plaintiff Christopher Beale --Plaintiffs' Reply to Defendants' Omnibus Opposition to Dkt. Nos. 352-361 filed by ALL PLAINTIFFS. (Kincaid, Linda) (Entered: 09/08/2017)

09/11/2017 364 NOTICE of Name Change of Plaintiff Gail Rusch by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1)(Kincaid, Linda) (Entered: 09/11/2017)

09/11/2017 365 NOTICE of Name Change of Dismissed Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Kincaid, Linda) (Entered: 09/11/2017)

10/16/2017 366 ORDER directing plaintiffs' counsel to supplement motions to substitute on or before October 30, 2017. Signed by Judge Paul L. Friedman on October 16, 2017. (MA) (Entered: 10/16/2017)

10/16/2017 367 MEMORANDUM OPINION directing plaintiffs' counsel to supplement motions to substitute [352, 353, 354, 355, 356, 357, 358, 359, 360, 361] on or before October 30, 2017. An Order consistent with this Opinion shall issue this same day. Signed by Judge Paul L. Friedman on October 16, 2017. (MA) (Entered: 10/16/2017)

10/17/2017

Set/Reset Deadlines: Supplement motions to substitute due by 10/30/2017. (tj) (Entered: 10/17/2017)

10/30/2017 368 Consent MOTION for Extension of Time to Supplement Motion to Substitute Estate of Robert Marshall by ALL PLAINTIFFS (Shinnar, Michal) (Entered: 10/30/2017)

10/30/2017 369 NOTICE of Supplement to Motions to Substitute Estates of Deceased Plaintiffs by ALL PLAINTIFFS re 360 MOTION to Substitute Estate of Plaintiff Robert Marshall, 354 MOTION to Substitute Estate of Donald Northover, 359 MOTION to Substitute Estate of Plaintiff Nancy Sutton, 352 MOTION to Substitute Estate of Plaintiff Christopher Beale, 356 MOTION to Substitute Estate of John Schweigert, 361 MOTION to Substitute Estate of Plaintiff Tommy Forte, 357

MOTION to Substitute Estate of Plaintiff Larry Johnston, 353 MOTION to Substitute Estate of Plaintiff Craig Marcus, 358 MOTION to Substitute Estate of Plaintiff Maurita Potter, 355 MOTION to Substitute Estate of Fred Lippi (Attachments: # 1 Exhibit Declaration of Gary M. Gilbert, Esq., # 2 Exhibit Declarations of Estate Representatives, # 3 Exhibit Declaration of Barbara Hoyt) (Shinnar, Michal) (Entered: 10/30/2017)

10/31/2017

MINUTE ORDER granting 368 plaintiffs' consent motion for extension of time to file supplement to motion to substitute estate of Robert Marshall. Plaintiffs' counsel shall supplement 360 plaintiffs' motion for substitution of estate for plaintiff Robert Marshall on or before November 13, 2017. Signed by Judge Paul L. Friedman on October 31, 2017. (MA) (Entered: 10/31/2017)

11/13/2017 370 NOTICE of Supplement to Motion to Substitute Estate of Plaintiff Robert Marshall by ALL PLAINTIFFS re 360 MOTION to Substitute Estate of Plaintiff Robert Marshall (Attachments: # 1 Declaration of Nathan M. Milner, Esq., # 2 Declaration of Melissa Ross)(Shinnar, Michal) (Entered: 11/13/2017)

11/30/2017 371 ORDER that plaintiffs' counsel shall file on or before December 11, 2017 declarations for the two remaining estate representatives or a notice explaining why they have not done so. Signed by Judge Paul L. Friedman on November 30, 2017. (MA) (Entered: 11/30/2017)

12/11/2017 372 SUPPLEMENTAL MEMORANDUM Supplement to Motions to Substitute Estates of Plaintiffs Donald Northover and Robert Marshall by ALL PLAINTIFFS re 360 MOTION to Substitute Estate of Plaintiff Robert Marshall, 354 MOTION to Substitute Estate of Donald Northover (Attachments: # 1 Declaration of Nyoka Northover, # 2 Declaration of William Marshall)(Shinnar, Michal) Modified event title on 12/12/2017 (znmw). (Entered: 12/11/2017)

12/13/2017 373 MEMORANDUM OPINION AND ORDER granting plaintiffs' motions for substitution of estates [352, 353, 354, 355, 356, 357, 358, 359, 360 and 361]. Signed by Judge Paul L. Friedman on December 13, 2017. (MA) (Entered: 12/13/2017)

12/29/2017 374 NOTICE of Appearance by Cori Morgan Cohen on behalf of ALL PLAINTIFFS (Cohen, Cori) (Entered: 12/29/2017)

01/19/2018 375 NOTICE of Filing that John Lynch Has Retained Plaintiff's Counsel by ALL PLAINTIFFS (Shinnar, Michal) (Entered: 01/19/2018)

01/22/2018 376 NOTICE OF WITHDRAWAL OF APPEARANCE as to MARION C. BLAKEY, ELAINE L. CHAO. Attorney Elizabeth L. Kade terminated. (Kade, Elizabeth) (Entered: 01/22/2018)

03/27/2018 377 ORDER granting 317 the motion of dismissed plaintiffs for reconsideration of the Court's orders of dismissal. The claims of the 226 movants are reinstated. Signed by Judge Paul L. Friedman on March 27, 2018. (MA) (Entered: 03/27/2018)

03/27/2018 378 OPINION granting the dismissed plaintiffs' motion 317 for reconsideration and reinstating their claims. An Order consistent with this Opinion shall issue this same day. Signed by Judge Paul L. Friedman on March 27, 2018. (MA) (Entered: 03/27/2018)

03/27/2018 379 ORDER granting 316 the motion of fifteen prospective plaintiffs to reconsider the Court's prior orders denying them leave to join or, in the alternative, intervene. The plaintiffs may file an amended complaint adding the movants as plaintiffs to this case on or before April 10, 2018. Signed by Judge Paul L. Friedman on March 27, 2018. (MA) (Entered: 03/27/2018)

03/27/2018 380 OPINION granting 316 the prospective plaintiffs' motion to reconsider the Court's prior orders denying them leave to join or, in the alternative, intervene and permit the prospective plaintiffs to join this case. An Order consistent with this Opinion shall issue this same day. Signed by Judge Paul L. Friedman on March 27, 2018. (MA) (Entered: 03/27/2018)

04/02/2018 381 ORDER scheduling a status conference on 5/1/18 and directing the parties to meet and confer and submit a joint status report to the Court on or before 4/24/18. Signed by Judge Paul L. Friedman on 4/2/18. (lcplf2) (Entered: 04/02/2018)

04/02/2018

Set/Reset Deadlines/Hearings: Joint Status Report due by 4/24/2018. Status Conference set for 5/1/2018 at 11:00 AM in Courtroom 29A before Judge Paul L. Friedman. (hs) (Entered: 04/02/2018)

04/10/2018 382 Second AMENDED COMPLAINT against All Defendants filed by ALL PLAINTIFFS.(Shinnar, Michal) Modified on 4/11/2018 (ztd). (Entered: 04/10/2018)

04/10/2018 383 MOTION for Reconsideration re 122 Memorandum & Opinion, 181 Order on Motion for Reconsideration of Denial of Joinder or Intervention for Three Additional Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Shinnar, Michal) (Entered: 04/10/2018)

04/24/2018 384 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 04/24/2018)

04/25/2018 385 MOTION to Permit Additional Dismissed Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Attachment A - Previously Dismissed Plaintiffs Who Retained Plaintiffs Counsel as Indicated in Plaintiffs Third Status Report (Dkt. No. 337), # 3 Attachment B - Previously Dismissed Plaintiffs Who Retained Plaintiffs Counsel as Indicated in Plaintiffs Request for Status Conference (Dkt. No. 348))(Kincaid, Linda) (Entered: 04/25/2018)

05/01/2018 386 NOTICE of Appearance by Kari E. D'Ottavio on behalf of All Defendants (D'Ottavio, Kari) (Entered: 05/01/2018)

05/01/2018 387 NOTICE of Appearance by Joshua Edward Gardner on behalf of All Defendants (Gardner, Joshua) (Entered: 05/01/2018)

05/01/2018

Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 5/1/2018. Government's unopposed oral motion to waive requirement of filing an answer to amended complaint GRANTED by the Court. Proposed order from plaintiff that includes reference to pending motions 383 and 385 due by 5/2/2018. Rule 16 motion due by 6/1/2018. Government's response to Rule 16 motion due by 6/15/2018. Plaintiff's reply due by 6/22/2018. (Court Reporter: Lisa Moreira.) (jl) (Entered: 05/01/2018)

05/02/2018 388 NOTICE Proposed Order by ALL PLAINTIFFS re Status Conference,,, Set

Deadlines,, (Sellers, Joseph) (Entered: 05/02/2018)

05/03/2018 389 ORDER setting a schedule by which the Court will determine which individuals may participate in this case as plaintiffs. Individuals who wish to join or rejoin the case shall notify plaintiffs' counsel on or before July 31, 2018. Plaintiffs' counsel shall submit to the Court on or before August 10, 2018, a motion to reinstate all individuals who have expressed their intention to participate as plaintiffs in this case. ( Signed by Judge Paul L. Friedman on 5/3/18) (Entered: 05/03/2018)

05/03/2018

MINUTE ORDER. In view of the Court's order 389 issued this same day, the Court will hold the pending motions for reconsideration 383 385 in abeyance until plaintiffs' counsel submits the omnibus motion to reinstate all individuals who have expressed their intention to participate as plaintiffs in this case. Signed by Judge Paul L. Friedman on May 3, 2018. (MA) (Entered: 05/03/2018)

05/09/2018 390 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Stephanie Marie Herrera terminated. (Attachments: # 1 Declaration of Kathleen Breen)(Herrera, Stephanie) (Entered: 05/09/2018)

06/01/2018 391 MOTION to Reopen Discovery by ALL PLAINTIFFS (Attachments: # 1 Exhibit Ex. A to Motion, # 2 Memorandum in Support, # 3 Declaration Dr. Robert Nelson, # 4 Text of Proposed Order)(Sellers, Joseph) (Entered: 06/01/2018)

06/14/2018 392 NOTICE of Appearance by Shannon Clare Leary on behalf of ALL PLAINTIFFS (Leary, Shannon) (Entered: 06/14/2018)

06/15/2018 393 Memorandum in opposition to re 391 MOTION to Reopen Discovery filed by MARION C. BLAKEY, ELAINE L. CHAO. (Attachments: # 1 Exhibit 1Defendants' Initial Disclosures, # 2 Text of Proposed Order)(Kirschner, Adam) (Entered: 06/15/2018)

06/18/2018 394 NOTICE Regarding Additional Individuals Who Wish to Join the Case by ALL PLAINTIFFS (Gilbert, Gary) (Entered: 06/18/2018)

06/22/2018 395 REPLY to opposition to motion re 391 MOTION to Reopen Discovery filed by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 06/22/2018)

06/28/2018

MINUTE ORDER. In view of the plaintiffs' notification 394 regarding additional individuals who wish to join the case, the Court directs the parties to meet and confer and submit a joint status report on or before July 10, 2018. The joint status report shall indicate whether defendants oppose the joinder of additional individuals who were not previously named in complaints and who have not previously sought to join the case and, should the parties wish to brief the matter, propose a briefing schedule. Signed by Judge Paul L. Friedman on June 28, 2018. (MA) (Entered: 06/28/2018)

06/28/2018

Set/Reset Deadlines: Status Report due by 7/10/2018 (tj) (Entered: 06/28/2018)

07/10/2018 396 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 07/10/2018)

07/16/2018

MINUTE ORDER. Plaintiffs may file a motion seeking to join additional individuals who were not previously named in the complaints and who have not previously sought to join the case on or before July 27, 2018; defendants may file an opposition on or before August 23, 2018; and plaintiffs may file a reply on or

before September 10, 2018. Signed by Judge Paul L. Friedman on July 16, 2018. (MA) (Entered: 07/16/2018)

07/16/2018

Set/Reset Deadlines: Plaintiffs motion to join additional individuals due by 7/27/2018. Defendants response due by 8/23/2018. Plaintiffs reply due by 9/10/2018. (gdf) (Entered: 07/23/2018)

07/17/2018 397 MEMORANDUM OPINION AND ORDER granting in part and denying in part 391 plaintiffs' motion to reopen discovery. Signed by Judge Paul L. Friedman on July 17, 2018. (MA) (Entered: 07/17/2018)

07/19/2018 398 STIPULATION re 397 Memorandum & Opinion, Order Regarding Document Production Requests by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 07/19/2018)

07/27/2018 399 MOTION Join Additional Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support 2018.07.27 Memorandum of Points and Authorities in Support of Plaintiffs Motion to Join Additional Plaintiffs, # 2 Proposed Order, # 3 Exhibit Exhibit 1)(Leary, Shannon) (Entered: 07/27/2018)

08/10/2018 400 MOTION to Reinstate Individuals Who Seek to Participate as Plaintiffs re 383 MOTION for Reconsideration re 122 Memorandum & Opinion, 181 Order on Motion for Reconsideration of Denial of Joinder or Intervention for Three Additional Plaintiffs, 389 Order, 385 MOTION to Permit Additional Dismissed Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Text of Proposed Order)(Cochran, Shaylyn) (Entered: 08/10/2018)

08/23/2018 401 Memorandum in opposition to re 399 MOTION Join Additional Plaintiffs filed by MARION C. BLAKEY, ELAINE L. CHAO. (D'Ottavio, Kari) (Entered: 08/23/2018)

09/10/2018 402 REPLY to opposition to motion re 399 MOTION Join Additional Plaintiffs filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kincaid, Linda) (Entered: 09/10/2018)

10/25/2018 403 ERRATA Correction by ALL PLAINTIFFS 400 MOTION to Reinstate Individuals Who Seek to Participate as Plaintiffs re 383 MOTION for Reconsideration re 122 Memorandum & Opinion, 181 Order on Motion for Reconsideration of Denial of Joinder or Intervention for Three Additional P filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Exhibit A)(Shinnar, Michal) (Entered: 10/25/2018)

10/31/2018 404 MOTION to Substitute Estate of Plaintiff Bobby Wilkins, Jr. by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Tamara Wilkins, # 2 Death Certificate for Bobby Wilkins, Jr., # 3 Declaration of Tamara Wilkins, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)

10/31/2018 405 MOTION to Substitute Estate of Plaintiff Carl Corwin by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Mary Jane Corwin, # 2 Death Certificate for Carl Corwin, # 3 Declaration of Mary Jane Corwin, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)

10/31/2018 406 MOTION to Substitute Estate of Plaintiff David Ryan by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Linda Ryan, # 2 Death Certificate for

David Ryan, # 3 Declaration of Linda Ryan, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 407 MOTION to Substitute Estate of Plaintiff Frederick Green by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Deborah Green, # 2 Death Certificate for Frederick Green, # 3 Declaration of Deborah Green, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 408 MOTION to Substitute Estate of Plaintiff Greg Woolley by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Megan Woolley, # 2 Death Certificate for Greg Woolley, # 3 Declaration of Megan Woolley, # 4 Letters of Authority for Megan Woolley, # 5 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 409 MOTION to Substitute Estate of Plaintiff Phillip Perreira, Jr. by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Cheryl Scellato, # 2 Death Certificate for Phillip Perreira, Jr., # 3 Declaration of Cheryl Scellato, # 4 Short Form Trust Agreement for Cheryl Scellato, # 5 Text of Proposed Order) (Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 410 MOTION to Substitute Estate of Plaintiff Richard Reimann by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Patricia Reimann, # 2 Death Certificate for Richard Reimann, # 3 Declaration of Patricia Reimann, # 4 Short Form Trust Agreement for Patricia Reimann, # 5 Text of Proposed Order) (Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 411 MOTION to Substitute Estate of Plaintiff Ronald Coleman by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Robin Coleman, # 2 Death Certificate for Ronald Coleman, # 3 Declaration of Robin Coleman, # 4 Trust for Robin Coleman, # 5 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 412 MOTION to Substitute Estate of Plaintiff Tyrone Austin by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Karen Fisher-Austin, # 2 Death Certificate for Tyrone Austin, # 3 Declaration of Karen Fisher-Austin, # 4 Letters of Authority for Karen Fisher-Austin, # 5 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)
10/31/2018 413 MOTION to Substitute Estate of Plaintiff Willie Rogers by ALL PLAINTIFFS (Attachments: # 1 Letter of Substitution for Heath Rogers, # 2 Death Certificate for Willie Rogers, # 3 Declaration of Heath Rogers, # 4 Judgment of Possession for Heath Rogers, # 5 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/31/2018)
11/08/2018 414 Joint MOTION for Discovery Schedule by MARION C. BLAKEY, ELAINE L. CHAO (Attachments: # 1 Text of Proposed Order)(D'Ottavio, Kari) (Entered: 11/08/2018)
11/09/2018 415 ORDER granting 414 the Joint Motion for Discovery. Parties shall complete expert discovery by 4/12/19, and the parties stipulation regarding document production requests doc [#398] is hereby WITHDRAWN. (Signed by Judge Paul L. Friedman on 11/9/18). (tj) (Entered: 11/09/2018)
12/26/2018 416 Unopposed MOTION to Stay Discovery Deadlines by MARION C. BLAKEY, ELAINE L. CHAO (D'Ottavio, Kari) (Entered: 12/26/2018)

12/27/2018

MINUTE ORDER granting the government's unopposed motion 416 to stay discovery deadlines for the duration of the lapse of appropriations. Upon the resumption of the U.S. Department of Justice's usual civil litigation functions, the government shall notify the Court and may propose new discovery deadlines if necessary. Signed by Judge Paul L. Friedman on December 27, 2018. (lcplf2) (Entered: 12/27/2018)

01/11/2019 417 ORDER granting plaintiffs' unopposed motions for substitution of estate 404 405 406 407 408 409 410 411 412 413 . Signed by Judge Paul L. Friedman on January 11, 2019. (lcplf2) (Entered: 01/11/2019)

01/30/2019 418 NOTICE of Restoration of Appropriations by MARION C. BLAKEY, ELAINE L. CHAO (D'Ottavio, Kari) (Entered: 01/30/2019)

01/31/2019

MINUTE ORDER: Upon consideration for the government's notice of restoration of appropriations 418 , the stay of discovery deadlines granted by the Court on December 27, 2018 is hereby lifted. On or before February 15, 2019, the parties shall meet and confer and propose to the Court a new expert discovery schedule. (So Ordered Judge Paul L. Friedman on January 31, 2019) (MA) (Entered: 01/31/2019)

02/15/2019 419 Joint STATUS REPORT by MARION C. BLAKEY, ELAINE L. CHAO. (D'Ottavio, Kari) (Entered: 02/15/2019)

03/01/2019

MINUTE ORDER. Upon consideration of the parties' joint status report 419 , the parties are ordered to file a joint status report on or before May 9, 2019, proposing an updated expert discovery schedule. Signed by Judge Paul L. Friedman on March 1, 2019. (lcplf2) (Entered: 03/01/2019)

03/01/2019

Set/Reset Deadlines: Status Report due by 5/9/2019 (tj) (Entered: 03/01/2019)

03/21/2019 420 MEMORANDUM OPINION AND ORDER denying without prejudice 399 plaintiffs' motion to join additional plaintiffs. Signed by Judge Paul L. Friedman on March 21, 2019. (MA) (Entered: 03/21/2019)

03/21/2019 421 ORDER granting in part and denying in part 400 plaintiffs motion to reinstate all individuals who have expressed their intention to participate as plaintiffs in this case; and that prior motions by plaintiffs 383 385 have been incorporated into plaintiffs' instant motion 400 and therefore are granted. Signed by Judge Paul L. Friedman on March 21, 2019. (MA) (Entered: 03/21/2019)

03/21/2019 422 OPINION granting in part and denying in part 400 plaintiffs' motion to reinstate all individuals who have expressed their intention to participate in this case; and granting prior motions 383 385 which have been incorporated into plaintiffs' instant motion 400 . An Order consistent with this Opinion shall issue this same day. Signed by Judge Paul L. Friedman on March 21, 2019.(MA) (Entered: 03/21/2019)

04/03/2019 423 ORDER that the parties shall meet and confer about how the case should proceed and submit a joint status report on or before May 9, 2019. A status conference is scheduled for May 13, 2019 at 10:00 a.m. Signed by Judge Paul L. Friedman on April 3, 2019. (MA) (Entered: 04/03/2019)

04/05/2019

Set/Reset Hearings:(Status Conference set for 5/13/2019 at 10:00 AM in

Courtroom 29A before Judge Paul L. Friedman.), Set/Reset Deadlines:( Status Report due by 5/9/2019) (tj) (Entered: 04/05/2019)

04/18/2019 424 Consent MOTION to Continue to Reschedule Status Conference by ALL PLAINTIFFS (Gilbert, Gary) Modified event title on 4/19/2019 (znmw). (Entered: 04/18/2019)

04/22/2019

MINUTE ORDER granting the consent motion 424 to reschedule the status conference. The status conference currently scheduled for May 13, 2019 at 10:00 a.m. is hereby VACATED. The parties shall appear for a status conference on May 28, 2019 at 10:00 a.m. Signed by Judge Paul L. Friedman on April 22, 2019. (lcplf2) (Entered: 04/22/2019)

04/25/2019 425 Mail Returned as Undeliverable; Addressed to Janice I. Wilson, 12706 Amor Street, Dewey, AZ 86327; Type of Document Returned: Order dated 4/3/19. (tj) (Entered: 04/25/2019)

05/01/2019

MINUTE ORDER. The status conference currently scheduled for May 28, 2019 at 10:00 a.m. is VACATED. The parties shall appear for a status conference on June 20, 2019 at 10:00 a.m. Signed by Judge Paul L. Friedman on May 1, 2019. (lcplf2) (Entered: 05/01/2019)

05/09/2019 426 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 05/09/2019)

05/15/2019

MINUTE ORDER. Upon consideration of the parties' joint status report 426 , the Court adopts the proposed schedule for the remaining discovery in this case. Accordingly, the defendant's expert report is due on or before June 20, 2019; the defendant's expert deposition shall be conducted on or before July 19, 2019; the plaintiffs' expert rebuttal report is due on or before August 30, 2019; and the plaintiffs' expert rebuttal deposition shall be conducted on or before October 17, 2019. If the parties must make any adjustments to this schedule, they are ordered to file a joint motion proposing such changes. Signed by Judge Paul L. Friedman on May 15, 2019. (lcplf2) (Entered: 05/15/2019)

05/21/2019

Set/Reset Deadlines: Defendant Rule 26(a)(2) due by 6/20/2019. (tj) (Entered: 05/21/2019)

05/22/2019 427 Letter from Plaintiff Tom Domingo ("Let this be filed" signed by Judge Paul L. Friedman (ztd) (Entered: 05/22/2019)

05/22/2019

MINUTE ORDER. Upon consideration of Mr. Domingo's letter 427 , Mr. Domingo shall be permitted to attend the status conference scheduled for June 20, 2019 at 10:00 a.m. by telephone. At the status conference, the parties shall be prepared to discuss whether the plaintiffs seek class certification and the status of discovery, including the availability of the document requested by Mr. Domingo in his July 25, 2016 letter 297 . Signed by Judge Paul L. Friedman on May 22, 2019. (lcplf2) (Entered: 05/22/2019)

06/20/2019

Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 6/20/2019. Joint Status Report with proposed dates due by 6/28/2019. (Court Reporter: Cathryn Jones.) (tj) (Entered: 06/21/2019)

06/24/2019

MINUTE ORDER. Based on the discussion at the June 20, 2019 status

conference, the parties are directed to confer and to submit a joint status report, proposing a briefing schedule to address Mr. Domingo's veterans preference claim, as presented in his letter filed July 25, 2016 297 . Signed by Judge Paul L. Friedman on June 24, 2019. (MA) (Entered: 06/24/2019)

06/27/2019 428 Joint STATUS REPORT on Proposed Pre-Trial and Trial Schedule by MARION C. BLAKEY, ELAINE L. CHAO. (Kirschner, Adam) (Entered: 06/27/2019)

06/27/2019

Set/Reset Deadlines: Status Report due by 7/25/2019 (tj) (Entered: 06/27/2019)

07/02/2019

MINUTE ORDER. Counsel for the represented plaintiffs are directed to submit a status report on or before July 8, 2019, listing to the best of their knowledge all plaintiffs currently party to this case that are either proceeding pro se or represented by other counsel. Signed by Judge Paul L. Friedman on July 2, 2019. (MA) (Entered: 07/02/2019)

07/03/2019 429 Joint STATUS REPORT on Proposed Briefing Schedule to Address Mr. Domingo's Veterans Preference Claim by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 07/03/2019)

07/08/2019

MINUTE ORDER adopting the joint proposed schedule 429 to brief pro se plaintiff Tom Domingo's veterans preference claim. Mr. Domingo's submission to supplement his letter 297 is due on or before July 10, 2019. Represented plaintiffs' and defendants' response to Mr. Domingo's submission is due on or before August 14, 2019. Mr. Domingo's reply to plaintiffs' and defendants' response is due on or before August 28, 2019. Signed by Judge Paul L. Friedman on July 8, 2019. (MA) (Entered: 07/08/2019)

07/08/2019 430 STATUS REPORT by ALL PLAINTIFFS. (Attachments: # 1 Affidavit Affidavit of Process Server)(Gilbert, Gary) (Entered: 07/08/2019)

07/10/2019 431 PRETRIAL SCHEDULING ORDER. A pretrial conference is scheduled for November 14, 2019 at 10:00 a.m. The case is set for a bench trial beginning on December 4, 2019 at 9:30 a.m. and is anticipated to last approximately two weeks. Each party shall file a pretrial statement on or before November 4, 2019. See Order for other specifics. Signed by Judge Paul L. Friedman on July 10, 2019. (MA) (Entered: 07/10/2019)

07/10/2019 432 ORDER that Julia Greenway and David Almaguer each shall file a notice with the Court on or before July 31, 2019 explaining whether they intend to proceed in this case and verify their contact information for the Court. Signed by Judge Paul L. Friedman on July 10, 2019. (MA) (Entered: 07/10/2019)

07/12/2019

Set/Reset Deadlines: Motion in Limine due by 9/25/2019; Pretrial Statement due by 11/4/2019; Responses due by 10/16/2019; Replies due by 10/30/2019; Plaintiff Rule 26(b)(4) due by 7/31/2019; Defendant Rule 26(b)(4) due by 8/21/2019; Set/Reset Hearings: Pretrial Conference set for 11/14/2019 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman; Bench Trial set for 12/4/2019 at 09:30 AM in Courtroom 29A before Judge Paul L. Friedman., (tj) (Entered: 07/12/2019)

07/26/2019 433 Joint STATUS REPORT (UPDATED) by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 07/26/2019)

07/29/2019 434 NOTICE of Appearance by Martin M. Tomlinson on behalf of MARION C. BLAKEY, ELAINE L. CHAO (Tomlinson, Martin) (Entered: 07/29/2019)

07/31/2019 435 NOTICE of Filing re Julia Greenway by ALL PLAINTIFFS re 432 Order, (Kincaid, Linda) (Entered: 07/31/2019)

07/31/2019 436 NOTICE of Filing re Tom Domingo by ALL PLAINTIFFS re Order,, (Attachments: # 1 Exhibit 1)(Gilbert, Gary) (Entered: 07/31/2019)

08/06/2019 438 RESPONSE TO ORDER OF THE COURT filed by TOM DOMINGO. "Let this be filed" by Judge Paul L. Friedman on 8/6/2019. (tth) (Entered: 08/09/2019)

08/07/2019 437 ORDER that the parties shall meet and confer and file a joint status report on or before August 23, 2019 proposing an amended schedule for trial and updated dates for all pretrial deadlines. Signed by Judge Paul L. Friedman on August 7, 2019. (MA) (Entered: 08/07/2019)

08/07/2019

Set/Reset Deadlines: Status Report due by 8/23/2019. (tj) (Entered: 08/07/2019)

08/14/2019 439 RESPONSE re: 436 to Tom Domingo Filing re Veterans' Preference filed by ALL PLAINTIFFS. (Leary, Shannon) Modified to add linkage on 8/14/2019 (ztd). (Entered: 08/14/2019)

08/14/2019 440 Consent MOTION to Substitute Estate of Plaintiff Lisa Haddow by ALL PLAINTIFFS (Attachments: # 1 Letter of Instruction from Hector Haddow, the Personal Representative, # 2 Death Certificate of Lisa Haddow, # 3 Letters Testamentary appointing Hector Haddow as the Personal Representative of the Estate, # 4 Declaration of Hector Haddow, # 5 Text of Proposed Order)(Leary, Shannon) (Entered: 08/14/2019)

08/15/2019 441 Mail Returned as Undeliverable: Sent to Julia M. Greenway, 9904 Hemloc Woods Lane, Burke, VA 22015. Type of Document Returned: Order dated 7/10/19; No forwarding address provided. (tj) (Entered: 08/15/2019)

08/15/2019 442 RESPONSE 436 re Tom Domingo Filing re Veterans' Preference filed by MARION C. BLAKEY, ELAINE L. CHAO. (D'Ottavio, Kari) Modified to add linkage on 8/15/2019 (ztd). (Entered: 08/15/2019)

08/23/2019 443 Joint STATUS REPORT by ALL PLAINTIFFS. (Shinnar, Michal) (Entered: 08/23/2019)

08/27/2019 444 ORDER granting 440 plaintiffs' consent motion for substitution of estate for plaintiff Lisa Haddow. The Estate of Lisa Haddow is substituted through her Personal Representative, Hector Haddow, as a plaintiff in this case. Signed by Judge Paul L. Friedman on August 27, 2019. (MA) (Entered: 08/27/2019)

08/27/2019

MINUTE ORDER that the pretrial conference, currently scheduled for November 14, 2019, and the bench trial, currently scheduled for December 4, 2019 through December 20, 2019, are hereby VACATED. The bench trial is RESCHEDULED for March 2, 2020 through March 13, 2020 starting at 9:30 a.m. each day. Signed by Judge Paul L. Friedman on August 27, 2019. (MA) (Entered: 08/27/2019)

09/04/2019 445 ORDER that David Almaguer shall send notice to Court on or before October 15, 2019 indicating whether he plans to proceed in this case. Signed by Judge Paul L. Friedman on September 4, 2019. (MA) (Entered: 09/04/2019)

09/04/2019 446 PRETRIAL SCHEDULING ORDER. The bench trial has been rescheduled for March 2, 2020 through March 13, 2020 beginning at 9:30 a.m. each day and should last approximately two weeks. The pretrial conference is scheduled for February 19, 2020 at 10:00 a.m., and the parties shall file a joint pretrial statement on or before January 31, 2020. See Order for other specifics. Signed by Judge Paul L. Friedman on September 4, 2019. (MA) (Entered: 09/04/2019)

09/05/2019

Set/Reset Deadlines/Hearings: Pretrial Statement due by 1/31/2020. Bench Trial set for 3/2/2020 at 09:30 AM in Courtroom 29A before Judge Paul L. Friedman. Pretrial Conference set for 2/19/2020 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. (gdf) (Entered: 09/05/2019)

09/19/2019 447 Mail Returned as Undeliverable; Sent to Janice I. Wilson; Type of Document Returned: Order #445 and Pretrial Scheduling Order #446; Resent at New Address: N/A. (gdf) (Entered: 09/19/2019)

09/20/2019 448 NOTICE of Ongoing Legal Proceedings by MARION C. BLAKEY, ELAINE L. CHAO (Tomlinson, Martin) (Entered: 09/20/2019)

09/23/2019 449 Joint MOTION for Extension of Time to Complete Discovery by ALL PLAINTIFFS (Shinnar, Michal) (Entered: 09/23/2019)

09/24/2019

MINUTE ORDER granting the joint motion to extend discovery deadlines 449 . The deposition of the plaintiffs' expert shall be conducted on or before November 6, 2019. Signed by Judge Paul L. Friedman on September 24, 2019. (MA) (Entered: 09/24/2019)

09/26/2019 450 TRANSCRIPT OF PROCEEDINGS before Judge Paul L. Friedman held on June 20, 2019; Page Numbers: 1 - 28. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 324-3246, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the tra nscript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 10/17/2019. Redacted Transcript Deadline set for 10/27/2019. Release of Transcript Restriction set for 12/25/2019.(Jones, Cathryn) Modified on 9/30/2019 (ztd). (Entered: 09/26/2019)
09/27/2019 451 MEMORANDUM OPINION AND ORDER denying Mr. Domingo's request to include a veteran's preference claim. Signed by Judge Paul L. Friedman on September 27, 2019. (lcplf2) (Entered: 09/27/2019)

10/24/2019

MINUTE ORDER directing the parties to file their Rule 26(a)(3) disclosures. The original deadlines set in the Court's September 4, 2019 pretrial scheduling order [Dkt. No. 446] have passed. Plaintiffs shall now file their Rule 26(a)(3) disclosures on or before November 4, 2019. The defendants' Rule 26(a)(3) disclosures, objections, and counter-designations to plaintiffs' Rule 26(a)(3) disclosures shall be filed on or before November 25, 2019. Plaintiffs shall file their objections and counter-designations to defendants' Rule 26(a)(3) disclosures on or before December 16, 2019. All other deadlines set in the Courts September 4, 2019 pretrial scheduling order [Dkt. No. 446] remain unchanged. Signed by Judge Paul L. Friedman on October 24, 2019. (MA) (Entered: 10/24/2019)

10/25/2019 452 ORDER that David Almaguer shall send notice to Court on or before November 15, 2019 indicating whether he plans to proceed in this case. Signed by Judge Paul L. Friedman on October 25, 2019. (lcdr) (Entered: 10/25/2019)

11/04/2019 453 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 11/04/2019)

11/04/2019 454 RULE 26a3 STATEMENT. (Attachments: # 1 Exhibit Designations, # 2 Exhibit Identification of Exhibits)(Sellers, Joseph) (Entered: 11/04/2019)

11/05/2019 455 RULE 26a3 STATEMENT by Tom Domingo. (ztd); ("Let this be filed" signed 11/5/19 by Judge Paul L. Friedman) (Entered: 11/13/2019)

11/25/2019 456 RULE 26a3 STATEMENT. (Attachments: # 1 Defendants' Deposition Designations, # 2 Counter-Designations, # 3 Objections to Plaintiffs' Deposition Designations, # 4 Defendants' Identification of Exhibits, # 5 Objections to Plaintiffs' Exhibits)(D'Ottavio, Kari); Modified Date Filed due to ECF unavailability on 11/26/2019 (ztth). (Entered: 11/26/2019)

11/25/2019 458 RESPONSE re 456 Rule 26a3 Statement, 455 Rule 26a3 Statement filed by ELAINE L. CHAO. (ztd); (See docket entry no. 456 to view.) Modified on 11/26/2019 (ztd). (Entered: 11/26/2019)

11/26/2019 457 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Cori Morgan Cohen terminated. (Kincaid, Linda) (Entered: 11/26/2019)

11/27/2019 459 MEMORANDUM OPINION AND ORDER that David Almaguer is dismissed as a plaintiff in this case without prejudice. Signed by Judge Paul L. Friedman on November 27, 2019. (MA) (Entered: 11/27/2019)

12/02/2019 460 Consent MOTION for Extension of Time to File Motion in Limine by ELAINE L. CHAO (D'Ottavio, Kari) (Entered: 12/02/2019)

12/03/2019

MINUTE ORDER. The consent motion to extend the motion in limine deadlines [Dkt. No. 460] is GRANTED. The Defendants' motion in limine is due on or before December 13, 2019. The Plaintiffs' opposition to the Defendants' motion in limine is due on or before January 14, 2020. The Defendants' reply in support of their motion in limine is due on or before January 24, 2020. Signed by Judge Paul L. Friedman on December 3, 2019. (MA) (Entered: 12/03/2019)

12/03/2019

Set/Reset Deadlines: Motion in Limine due by 12/13/2019. Responses due by 1/14/2020 Replies due by 1/24/2020. (tj) (Entered: 12/03/2019)

12/11/2019 461 RULE 26a3 STATEMENT. (Attachments: # 1 Defendants' Deposition

Designations, # 2 Counter-Designations, # 3 Objections to Plaintiffs' Deposition Designations, # 4 Defendants' Identification of Exhibits, # 5 Objections to Plaintiffs' Exhibits)(Tomlinson, Martin) (Entered: 12/11/2019)

12/13/2019 462 MOTION in Limine by ELAINE L. CHAO (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(D'Ottavio, Kari) (Entered: 12/13/2019)

12/16/2019 463 RULE 26a3 STATEMENT. (Attachments: # 1 Exhibit Plaintiffs' Objections, # 2 Exhibit Plaintiffs' Responses, # 3 Exhibit DOJ Exhibit List)(Sellers, Joseph) (Entered: 12/16/2019)

12/16/2019 464 RESPONSE re 461 Rule 26a3 Statement, filed by ALL PLAINTIFFS. (ztd); (See docket entry no. 463 to view.) (Entered: 12/17/2019)

01/13/2020 465 ORDER that counsel for the parties shall appear for a status conference on January 22, 2020 at 10:00 a.m. Any pro se parties may appear by telephone. Signed by Judge Paul L. Friedman on January 13, 2020. (MA) (Entered: 01/13/2020)

01/13/2020

Set/Reset Hearings: Status Conference set for 1/22/2020 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. (tj) (Entered: 01/13/2020)

01/14/2020 466 Memorandum in opposition to re 462 MOTION in Limine filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit)(Sellers, Joseph) (Entered: 01/14/2020)

01/22/2020

Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 1/22/2020. Parties will begin Settlement/Mediation discussions. All Pretrial Deadlines and Bench Trial scheduled to begin March 1, 2020 are TERMINATED. Mr. Joseph Sellers will represent Mr. Tom Domingo for the limited purpose of mediation. Further Orders to be issued by the Court. Status Report due by 2/27/2020. Status Conference set for 3/5/2020 at 10:30 AM in Courtroom 29A before Judge Paul L. Friedman. Court Reporter: Sara Wick. (zcal) (Entered: 01/22/2020)

01/22/2020 467 ORDER REFERRING CASE to mediation; this matter shall be stayed during the pendency of the referral to mediation; and the parties shall submit a joint status report or stipulation of settlement on or before February 27, 2020. Signed by Judge Paul L. Friedman on January 22, 2020. (MA) (Entered: 01/22/2020)

01/22/2020 468 ORDER that trial set to begin on March 2, 2020 is VACATED; the pretrial conference set for February 19, 2020 is VACATED; the deadlines for filing pretrial briefs are VACATED (see order for particulars); the parties shall file a joint status report on or before February 27, 2020; and a status conference is scheduled for March 5, 2020 at 10:30 a.m. Signed by Judge Paul L. Friedman on January 22, 2020. (MA) (Entered: 01/22/2020)

01/29/2020

Set/Reset Deadlines: Status Report due by 2/27/2020; Set/Reset Hearings: Status Conference set for 3/5/2020 at 10:30 AM in Courtroom 29A before Judge Paul L. Friedman. (tj) (Entered: 01/29/2020)

02/14/2020 469 TRANSCRIPT OF STATUS CONFERENCE before Judge Paul L. Friedman, held on 01/22/2020. Page Numbers: 1-41. Date of Issuance: 02/14/2020. Court Reporter: Sara Wick, telephone number 202-354-3284. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 3/6/2020. Redacted Transcript Deadline set for 3/16/2020. Release of Transcript Restriction set for 5/14/2020.(Wick, Sara) (Entered: 02/14/2020)

02/26/2020 470 Joint MOTION for Extension of Time to File Status Report by ALL PLAINTIFFS (Corman, Brian) (Entered: 02/26/2020)

02/27/2020

MINUTE ORDER. The joint motion for an extension of time to file the joint status report [Dkt. No. 470] is GRANTED. The parties' joint status report shall be due on or before March 3, 2020. Signed by Judge Paul L. Friedman on February 27, 2020. (MA) (Entered: 02/27/2020)

03/03/2020 471 Joint MOTION to Continue March 5, 2020 Status Conference by MARION C. BLAKEY, ELAINE L. CHAO, RAY H. LAHOOD, NORMAN Y. MINETA (Attachments: # 1 Text of Proposed Order)(Tomlinson, Martin) (Entered: 03/03/2020)

03/04/2020 472 ORDER granting 471 the parties' joint motion for continuance of status conference. The status conference, currently set for March 5, 2020, is CONTINUED to March 19, 2020 at 9:30 a.m. Signed by Judge Paul L. Friedman on March 4, 2020. (MA) (Entered: 03/04/2020)

03/11/2020

NOTICE OF ERROR re 470 Motion for Extension of Time to; emailed to bcorman@cohenmilstein.com, cc'd 48 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. Counsel must contact Attorney Admissions, (202) 354-3110 regarding status. (ztd, ) (Entered: 03/11/2020)

03/13/2020 473 Joint MOTION to Vacate 472 Order on Motion to Continue and to Continue Status Conference on April 9, 2020 or another date suitable to the Court by MARION C. BLAKEY, ELAINE L. CHAO, RAY H. LAHOOD, NORMAN Y. MINETA (Attachments: # 1 Text of Proposed Order)(Tomlinson, Martin) (Entered: 03/13/2020)

03/16/2020 474 ORDER granting 473 joint motion for vacatur of status conference. The status conference, currently set for March 19, 2020, is VACATED, and the parties shall file a status report on or before April 7, 2020 on the status of the mediation and advise whether a status conference should be scheduled. Signed by Judge Paul L. Friedman on March 16, 2020. (MA) (Entered: 03/16/2020)

03/16/2020

Set/Reset Deadlines: Status Report due by 4/7/2020. (tj) (Entered: 03/16/2020)

04/07/2020 475 Joint STATUS REPORT as to Status of Mediation by MARION C. BLAKEY, ELAINE L. CHAO. (Tomlinson, Martin) (Entered: 04/07/2020)

04/08/2020

MINUTE ORDER. Upon consideration of the parties' representations in the April 7, 2020 joint status report 475 , the parties shall file a joint status report on or before April 28, 2020, regarding the status of mediation in this litigation and whether a status conference should be scheduled. Signed by Judge Paul L. Friedman on April 8, 2020. (lcdr) (Entered: 04/08/2020)

04/08/2020

Set/Reset Deadlines: Status Report due by 4/28/2020. (tj) (Entered: 04/08/2020)

04/28/2020 476 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 04/28/2020)

04/29/2020

MINUTE ORDER. Upon consideration of the April 28, 2020 joint status report 476 , the parties shall file a new joint status report on or before June 30, 2020. Signed by Judge Paul L. Friedman on April 29, 2020. (lcdr) (Entered: 04/29/2020)

04/29/2020

Set/Reset Deadlines: Status Report due by 6/30/2020. (tj) (Entered: 04/29/2020)

06/30/2020 477 Joint STATUS REPORT by MARION C. BLAKEY, ELAINE L. CHAO. (Kirschner, Adam) (Entered: 06/30/2020)

06/30/2020

MINUTE ORDER. Upon consideration of the parties' joint status report 477 , the parties shall file a joint status report on or before July 30, 2020, updating the Court on the status of negotiations. Signed by Judge Paul L. Friedman on June 30, 2020. (lcdr) (Entered: 06/30/2020)

06/30/2020

Set/Reset Deadlines: Status Report due by 7/30/2020. (tj) (Entered: 06/30/2020)

07/01/2020

NOTICE OF ERROR re 477 Status Report; emailed to adam.kirschner@usdoj.gov, cc'd 48 associated attorneys -- The PDF file you docketed contained errors: 1. Notification sent to counsel regarding renewal. (ztd, ) (Entered: 07/01/2020)

07/23/2020 478 Consent MOTION to Substitute Estate for Warren E. McCall by ALL PLAINTIFFS (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Text of Proposed Order)(Kincaid, Linda) (Entered: 07/23/2020)

07/23/2020 479 Consent MOTION to Substitute Estate for William Evans by ALL PLAINTIFFS (Attachments: # 1 Exhibit Death Certificate of William Evans, # 2 Exhibit Declaration of Carol Haggard, # 3 Text of Proposed Order)(Kincaid, Linda) (Entered: 07/23/2020)

07/24/2020 480 ORDER granting 478 Motion to Substitute. See Order for details. Signed by Judge Paul L. Friedman on July 24, 2020. (lcdr) (Entered: 07/24/2020)

07/24/2020 481 ORDER granting 479 Motion to Substitute. See Order for details. Signed by Judge Paul L. Friedman on July 24, 2020. (lcdr) (Entered: 07/24/2020)

07/30/2020 482 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 07/30/2020)

07/30/2020

MINUTE ORDER. Upon consideration of the parties' joint status report 482 , the parties shall file a joint status report on or before September 14, 2020, updating the Court on the status of negotiations. Signed by Judge Paul L. Friedman on July 30, 2020. (lcdr) (Entered: 07/30/2020)

07/30/2020

Set/Reset Deadlines: Status Report due by 9/14/2020. (tj) (Entered: 07/30/2020)

08/21/2020 483 NOTICE OF WITHDRAWAL OF APPEARANCE as to MARION C. BLAKEY, ELAINE L. CHAO. Attorney Kari E. D'Ottavio terminated. (D'Ottavio, Kari) (Entered: 08/21/2020)

09/14/2020 484 Joint STATUS REPORT by MARION C. BLAKEY, ELAINE L. CHAO. (Kirschner, Adam) (Entered: 09/14/2020)

09/14/2020

MINUTE ORDER. Upon consideration of the parties' joint status report 484 , the parties shall file a joint status report on or before October 5, 2020, updating the Court on the status of negotiations. Signed by Judge Paul L. Friedman on September 14, 2020. (lcdr) (Entered: 09/14/2020)

09/15/2020

Set/Reset Deadlines: Status Report due by 10/5/2020. (tj) (Entered: 09/15/2020)

10/05/2020 485 Joint STATUS REPORT by MARION C. BLAKEY, ELAINE L. CHAO. (Kirschner, Adam) (Entered: 10/05/2020)

10/06/2020

MINUTE ORDER: Upon consideration of the parties' joint status report 485 , the parties shall file a joint status report on or before October 22, 2020, updating the Court on the status of negotiations. Signed by Judge Paul L. Friedman on October 6, 2020. (lcan) (Entered: 10/06/2020)

10/06/2020

Set/Reset Deadlines: Status Report due by 10/22/2020 (tj) (Entered: 10/06/2020)

10/22/2020 486 Joint STATUS REPORT by MARION C. BLAKEY, ELAINE L. CHAO. (Kirschner, Adam) (Entered: 10/22/2020)

10/23/2020

MINUTE ORDER. Upon consideration of the schedule proposed by the parties in their joint status report 486 filed on October 22, 2020, the parties shall file a joint status report on or before December 3, 2020, updating the Court on the status of negotiations and stating whether they have reached a final agreement. Signed by Judge Paul L. Friedman on October 23, 2020. (lcan) (Entered: 10/23/2020)

10/29/2020

Set/Reset Deadlines: Status Report due by 12/3/2020 (tj) (Entered: 10/29/2020)

10/30/2020 487 Consent MOTION to Substitute Estate for Stephen Thompson by ALL PLAINTIFFS (Attachments: # 1 Death Certificate of Stephen Thompson, # 2 Declaration of Barbara Thompson, # 3 Text of Proposed Order)(Kincaid, Linda) (Entered: 10/30/2020)

10/30/2020 488 ORDER granting 487 plaintiffs' consent motion for substitution of the Estate of Stephen Thompson, through his Personal Representative, Barbara Thompson, as a plaintiff in this case. Signed by Judge Paul L. Friedman on October 30, 2020. (MA) (Entered: 10/30/2020)

12/03/2020 489 Joint STATUS REPORT by ALL PLAINTIFFS. (Gilbert, Gary) (Entered: 12/03/2020)

12/03/2020 490 Joint STATUS REPORT Corrected Joint Status Report by ALL PLAINTIFFS. (Gilbert, Gary) (Entered: 12/03/2020)

12/03/2020

MINUTE ORDER. Upon consideration of 490 the parties corrected joint status report filed on December 3, 2020, the parties shall file a joint status report on or before December 18, 2020, updating the Court on the status of settlement negotiations. Signed by Judge Paul L. Friedman on December 3, 2020. (lcan) (Entered: 12/03/2020)

12/04/2020

Set/Reset Deadlines: Status Report due by 12/18/2020 (tj) (Entered: 12/04/2020)

12/18/2020 491 Consent MOTION to Withdraw as Counsel for Plaintiff Kenneth Currier by ALL PLAINTIFFS (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Kincaid, Linda) (Entered: 12/18/2020)

12/18/2020 492 Consent MOTION to Withdraw as Counsel for Plaintiff Varic Ellefson by ALL PLAINTIFFS (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Kincaid, Linda) (Entered: 12/18/2020)

12/18/2020 493 Consent MOTION for Order to Reinstate Plaintiff Donald Murray by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Kincaid, Linda) Modified event on 12/21/2020 (ztd). (Entered: 12/18/2020)

12/18/2020 494 Consent MOTION to Dismiss Three Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Exhibit Affidavit of Joel L. Truelove, # 2 Exhibit Affidavit of Matt B. Sherman, # 3 Exhibit Affidavit of Joseph B. Allen)(Kincaid, Linda) (Entered: 12/18/2020)

12/18/2020 495 Joint STATUS REPORT by ALL PLAINTIFFS. (Kincaid, Linda) (Entered: 12/18/2020)

12/21/2020 496 ORDER granting 494 plaintiffs' consent motion to voluntarily dismiss three plaintiffs. Plaintiffs Joel L. Truelove, Matt B. Sherman, and Joseph Brian Allen are hereby dismissed with prejudice. Signed by Judge Paul L. Friedman on December 21, 2020. (MA) (Entered: 12/21/2020)

12/21/2020

MINUTE ORDER: In consideration of the Joint Status Report 495 filed on December 18, 2020, it is hereby ORDERED that the parties shall file another joint status report on or before February 4, 2021 on the status of the settlement agreement and releases. Signed by Judge Paul L. Friedman on December 21, 2020. (MA) (Entered: 12/21/2020)

12/22/2020 497 ORDER granting 493 plaintiffs' consent motion to reinstate plaintiff Donald Murray. Signed by Judge Paul L. Friedman on December 22, 2020. (MA) (Entered: 12/22/2020)

12/22/2020

Set/Reset Deadlines: Status Report due by 2/4/2021 (tj) (Entered: 12/22/2020)

12/24/2020 498 MEMORANDUM AND OPINION granting 491 motion of plaintiffs' counsel to withdraw as counsel for plaintiff Kenneth Currier. Signed by Judge Paul L. Friedman on December 24, 2020. (lcan) (Entered: 12/24/2020)

12/24/2020 499 MEMORANDUM AND OPINION granting the motion of plaintiffs' counsel to withdraw as counsel for plaintiff Varic Ellefson and dismissing plaintiff Varic Ellefson's claim without prejudice. Signed by Judge Paul L. Friedman on December 24, 2020. (lcan) (Entered: 12/24/2020)

01/04/2021 500 NOTICE of Filing of Declaration of Kenneth Currier by ALL PLAINTIFFS (Attachments: # 1 Declaration)(Kincaid, Linda) (Entered: 01/04/2021)

01/28/2021 501 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Shaylyn Capri Cochran terminated. (Cochran, Shaylyn) (Entered: 01/28/2021)

02/04/2021 502 Joint STATUS REPORT by MARION C. BLAKEY, ELAINE CHAO. (Tomlinson, Martin) (Entered: 02/04/2021)

02/05/2021

MINUTE ORDER: In consideration of the Joint Status Report 502 filed on February 4, 2021, it is hereby ORDERED that the parties shall file another joint status report on or before March 8, 2021, on the status of the settlement agreement and releases. Signed by Judge Paul L. Friedman on February 5, 2021. (lcan) (Entered: 02/05/2021)

02/24/2021 503 Consent MOTION to Substitute Estate of Dean Mayfield by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Declaration of Lisa Mayfield, # 3 Exhibit Death Certificate of Dean Mayfield, # 4 Exhibit OPM Letter, # 5 Exhibit Letter from Counsel)(Kincaid, Linda) (Entered: 02/24/2021)

02/24/2021 504 Consent MOTION to Substitute Estate of Oscar Hinojosa by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Death Certificate of Oscar Hinojosa, # 3 Exhibit Declaration of Juanita Yzelda Hinojosa)(Kincaid, Linda) (Entered: 02/24/2021)

02/24/2021 505 ORDER granting 503 plaintiffs' consent motion for substitution of Lisa Mayfield as successor in interest for plaintiff Dean Mayfield. Signed by Judge Paul L. Friedman on February 24, 2021. (MA) (Entered: 02/24/2021)

02/24/2021 506 ORDER granting 504 plaintiffs' consent motion for the substitution of Personal Representative Juanita Yzelda Hinojosa for the Estate of plaintiff Oscar Hinojosa. Signed by Judge Paul L. Friedman on February 24, 2021. (MA) (Entered: 02/24/2021)

03/02/2021 507 Consent MOTION to Substitute Estate for Plaintiff John O'Connell by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Kincaid, Linda) (Entered: 03/02/2021)

03/03/2021 508 ORDER granting 507 plaintiffs' consent motion for substitution of estate for plaintiff John O'Connell via his Personal Representative Lee E. O'Connell. Signed by Judge Paul L. Friedman on March 3, 2021. (MA) (Entered: 03/03/2021)

03/08/2021 509 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 03/08/2021)

03/08/2021

MINUTE ORDER: In consideration of 509 the Joint Status Report filed on March 8, 2021, it is hereby ORDERED that the parties shall file another joint status report on or before April 8, 2021, updating the Court on the status of the settlement agreement and releases. Signed by Judge Paul L. Friedman on March 8, 2021. (lcan) (Entered: 03/08/2021)

03/08/2021

MINUTE ORDER that 462 defendants' motion in limine to exclude evidence from trial is hereby DENIED WITHOUT PREJUDICE. Defendants may refile the motion at a later date if necessary. Signed by Judge Paul L. Friedman on March 8,

2021. (lcan) (Entered: 03/08/2021)

03/08/2021

Set/Reset Deadlines: Status Report due by 4/8/2021. (tj) (Entered: 03/08/2021)

04/08/2021 510 Joint STATUS REPORT by ALL PLAINTIFFS. (Sellers, Joseph) (Entered: 04/08/2021)

PACER Service Center

Transaction Receipt

04/08/2021 21:35:23

PACER Login:

CRClearinghouse

Client Code:

Yu

Description: Docket Report

Search 1:05-cvCriteria: 00654-PLF

Billable Pages:

30

Cost:

3.00