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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Andrew J Brigida, 

Plaintiff, 

v. 

United States Department of 

Transportation, et al., 

Defendants. 

No. CV-15-02654-PHX-DLR

ORDER 

 Defendants have filed a motion to dismiss. (Doc. 27.) The motion is fully 

briefed.1

 For the reasons below, the motion is granted. 

BACKGROUND

 This lawsuit arises out of Plaintiff Andrew Brigida’s failed application for 

employment as an air traffic controller with the Federal Aviation Administration (FAA). 

Prior to 2014, as part of their hiring program, the FAA considered candidates who 

completed Air Traffic-Collegiate Training Initiative (CTI) programs at approved CTI 

Institutions. (Doc. 26, ¶¶ 22-24.) To be eligible for employment as a trainee controller, 

graduates of these programs were then required to pass an air traffic aptitude test, known 

as the Air Traffic Control Selection and Training (AT-SAT) exam. (Id., ¶ 26.) Once the 

candidates graduated from an approved CTI Institution and passed the AT-SAT, they 

 

1

 Plaintiff’s request for oral argument is denied. The issues are fully briefed, and the Court finds that oral argument will not aid in the resolution of this matter. See LR 

Civ. 7.2(f); Fed. R. Civ. P. 78(b). 

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were entered into a “direct hire pool of applicants, were placed on a Qualified Applicant 

Register List, and were given hiring preference for Air Traffic Control Specialist” 

(ATCS) positions. (Id., ¶ 31.) 

 In 2013, the FAA decided to modify its hiring process and notified candidates that 

it was “planning to open a general public announcement in FY 2014 to add more depth 

and diversity to [its] controller hiring sources.” (Id., ¶ 41.) As part of this new hiring 

strategy, the FAA required all applicants, including CTI graduates, to apply through this 

vacancy announcement. (Id., ¶ 49.) A revised testing process was also implemented, 

under which candidates were required to complete a biographical questionnaire (BQ). 

(Id., ¶ 50.) If the candidate passed the BQ, he would then be eligible to take the cognitive 

portion of the AT-SAT and be referred for a selection decision. (Id.) 

 On May 13, 2013, around the time the FAA began modifying its hiring practices, 

Brigida passed the AT-SAT exam “with the top numerical score possible of 100%.” (Id., 

¶ 76.) On August 13, 2013, he graduated from Arizona State University’s FAA-approved 

CTI program. (Id., ¶ 77.) That same month, ASU recommended him to the FAA and he 

was placed on the Qualified Applicant Register. (Id., ¶¶ 77-78.) In December 2013, 

however, the new hiring process took effect and “the FAA eliminated the CTI Applicant 

Register, which resulted in Plaintiff Brigida, and other putative Class Members, losing 

their employment preference and opportunity.” (Id., ¶ 52.) 

 On January 27, 2014, Brigida was informed of the changes to the hiring process 

and was told that he should reapply under the new process. (Id., ¶ 79.) On February 10, 

2014, Brigida reapplied for the position, and on February 27, 2014, the FAA notified him 

that he failed the BQ, and was therefore ineligible for hire. (Id., ¶¶ 80, 82.) In the 

following months, Brigida applied for thirty-six positions with the FAA, but was never 

hired. (Id., ¶ 87.) 

 In December 2015, Brigida filed suit challenging the FAA’s new hiring process. 

(Doc. 1.) Several months later, on July 15, 2016, “Congress passed the FAA Extension, 

Safety, and Security Act of 2016, which, inter alia, addressed the hiring of ATCS 

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positions by the FAA.” (Doc. 26, ¶ 67.) The Act provides that the “FAA should give 

preferential treatment for ATCS positions to qualified individuals maintaining 52 

consecutive weeks of civilian or military air traffic control experience.” (Id., ¶ 68.) The 

remaining ATCS positions are then hired equally out of two pools. (Id., ¶ 69.) The first 

pool is made up of: (1) CTI graduates who have received recommendations from their 

institution, (2) honorably discharged veterans, (3) eligible veterans with aviation 

experience, and (4) preference eligible veterans. (Id., ¶ 70.) The second pool is made of 

up “off-the-street” (OTS) applicants. (Id., ¶ 71.) The Act “prevents the FAA from using 

the [BQ] on applicants from the first pool,” but “does not prevent the FAA from using the 

[BQ] on OTS hires.” (Id., ¶ 72.) Further, the Act permits any applicant who was 

previously disqualified as a result of the BQ to reapply for an ATCS position. (Id., ¶ 74.) 

 On August 19, 2016, Brigida filed a two-count second amended class action 

complaint against Anthony Foxx, Secretary, U.S. Department of Transportation; the 

FAA; Michael Huerta, Administrator, FAA; and Stephanie Jones, Acting Director, 

Departmental Office of Civil Rights, U.S. Department of Transportation. (Doc. 26.) He 

alleges that the FAA’s hiring practice violates Title VII and the equal protection 

component of the Fifth Amendment. (Id., ¶¶ 97-114.) He seeks damages and an order 

directing the FAA “to reinstate the purged Qualified Applicant Register and give hiring 

preference to Plaintiff Brigida and other putative Class Members.” (Id.)

2

 

LEGAL STANDARD

 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 

Procedure 12(b)(6), a complaint must contain factual allegations sufficient to “raise a 

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 

(2007). The task when ruling on a motion to dismiss “is to evaluate whether the claims 

alleged [plausibly] can be asserted as a matter of law.” See Adams v. Johnson, 355 F.3d 

1179, 1183 (9th Cir. 2004); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When 

 

2

 Brigida does not challenge the recently enacted FAA Extension, Safety, and Security Act of 2016. 

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analyzing the sufficiency of a complaint, the well-pled factual allegations are taken as 

true and construed in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 

F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as factual 

allegations are not entitled to the assumption of truth, Iqbal, 556 U.S. at 680, and 

therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re 

Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2008). 

ANALYSIS

 Defendants move to (1) dismiss Brigida’s Equal Protection claim and all 

Defendants except Anthony Foxx, (2) strike Brigida’s request to reinstate the hiring 

preference for CTI graduates, and (3) transfer the remainder of this action to the District 

of Columbia. The Court will address each issue in turn. 

I. Equal Protection Claim 

 Brigida alleges that the FAA’s adoption of the “new hiring practice for Air Traffic 

Controllers with the intent and purpose of increasing racial diversity of Air Traffic 

Controller applicants” violates the equal protection component of the Fifth Amendment. 

(Doc. 26, ¶¶ 105, 112.) Defendants argue that this claim must be dismissed because Title 

VII is the exclusive remedy for claims of discrimination in employment. The Court 

agrees with Defendants. 

 “Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1970 ed., 

Supp. IV), proscribes federal employment discrimination and establishes an 

administrative and judicial enforcement system.” Brown v. Gen. Servs. Admin., 425 U.S. 

820, 829 (1976).3

 In Brown, the Supreme Court held that § 717 is a “precisely drawn, 

detailed statute [that] preempts more general remedies,” and thus it “provides the 

exclusive judicial remedy for claims of discrimination in federal employment.” Id. at 

834-35. In cases where the plaintiff brings a Title VII claim, courts have rejected 

supplemental statutory and constitutional claims where such claims were remediable 

 

3

 Section 717 “extends Title VII protection to federal employees[.]” Smith v. 

Lujan, 780 F. Supp. 1275, 1279 (D. Ariz. 1991). 

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under Title VII or involved the same factual predicate. See Otto v. Heckler, 781 F.2d 

754, 756 (9th Cir. 1986) (harassment claim not actionable because it was remediable 

under Title VII); Nolan v. Cleland, 686 F.2d 806, 814-15 (9th Cir. 1982) (striking due 

process claim based on the same facts as Title VII claim). The Ninth Circuit has held that 

equal protection claims fall under this purview, see Brazil v. U.S. Dep’t of Navy, 66 F.3d 

193, 197 (9th Cir. 1995) (rejecting equal protection claim brought under Bivens), and 

other circuits have reached the same conclusion, see e.g., Mlynczak v. Bodman, 442 F.3d 

1050, 1056-57 (7th Cir. 2006) (rejecting equal protection claim because “Brown squarely 

holds that § 717 provides the exclusive judicial remedy for claims of discrimination in 

federal employment” (internal quotation marks omitted)); Belhomme v. Widnall, 127 F.3d 

1214, 1217 (10th Cir. 1997) (“Title VII preempts any constitutional cause of action that a 

court might find under the First or Fifth Amendments for discrimination in federal 

employment.”). 

 Here, Brigida’s equal protection claim relies on the same allegations that form the 

basis of his Title VII claim. (Doc. 26, ¶¶ 97-114.) He alleges the FAA’s decision to 

purge the Qualified Applicant Register was made with the purpose of increasing 

diversity, which “constituted intentional racial discrimination.” (Id., ¶¶ 101, 107.) 

Moreover, he seeks the same remedies in both claims: (1) an order directing the FAA to 

reinstate the Qualified Applicant Register and give hiring preference to Brigida, and (2) 

damages in the form of back pay, front pay, hiring, and reinstatement. (Id., ¶¶ 102-03, 

113-14.) Not only is Brigida’s equal protection claim based on the same factual predicate 

as his Title VII claim, but it is also remediable by his Title VII claim. As such, his equal 

protection claim is precluded by § 717. 

 Brigida argues that his equal protection claim is necessary because Title VII does 

not vindicate all of his constitutional rights. (Doc. 29 at 14.) He asserts the violation of 

his rights under Title VII “is not coextensive with the violation of his rights under the 

Fifth Amendment.” (Id.) But he fails to specify how his Title VII claim affords less 

relief than his equal protection claim. In fact, he seeks the same remedies under both 

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counts. Moreover, Brigida fails to cite a single case in which a plaintiff bringing a Title 

VII employment discrimination claim was permitted to also maintain a separate 

constitutional claim with the same factual predicate. 

 Brigida also argues that Brown and Brazil are distinguishable because they dealt 

with statutory claims and a Bivens claim, respectively. (Doc. 29 at 15.) But Brown’s 

holding is clear: § 717 is the “exclusive judicial remedy for claims of discrimination in 

federal employment.” Brown, 425 U.S. at 829. Contrary to Brigida’s claim, Brown’s 

holding is not based on the doctrine of sovereign immunity, (Doc. 29 at 5), but the fact 

that the “balance, completeness, and structural integrity of [§ 717] are inconsistent with 

the . . . contention that the judicial remedy afforded by [a § 717 action] was designed 

merely to supplement other putative judicial relief.” Id. at 832. Thus, that the rejected 

claims were statutory in nature, as opposed to constitutional in nature, does not affect 

Brown’s application to this case, where Brigida has brought a Title VII action seeking the 

same relief as his equal protection claim. Likewise, that the plaintiff in Brazil brought his 

equal protection claim in the Bivens context is of no import. The result is the same: Title 

VII’s remedies are triggered, thereby precluding Brigida’s equal protection claim.4

 Because Brigida’s Title VII claim is the only remaining claim in this action, 

several Defendants must be dismissed. “[W]hen a federal employee alleges employment 

discrimination, the only proper defendant is the head of the agency which employs 

them.” Ardalan v. McHugh, No. 13-CV-01138-LHK, 2013 WL 6212710, at *20 (N.D. 

Cal. Nov. 27, 2013) (internal quotation marks omitted). Anthony Foxx is the head of the 

U.S. Department of Transportation—the department that would have employed Brigida. 

(Doc. 26, ¶ 5.) Thus, Defendants U.S. Department of Transportation, Federal Aviation 

Administration, Michael Huerta, and Stephanie Jones are dismissed from this action.5

II. Request to Reinstate Hiring Preference 

 

4

 In fact, Brigida’s equal protection claim is a Bivens claim insomuch as it seeks 

damages for constitutional violations committed by federal officials. Bivens v. Six 

Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). 

5

 Brigida does not oppose dismissal of these Defendants. (Doc. 29 at 5 n.1.) 

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 In his prayer for relief, Brigida seeks an “order directing the FAA to reinstate the 

purged Qualified Applicant Register and give hiring preference to Plaintiff Brigida and 

other Putative Class Members[.]” (Doc. 26 at 25.) Defendants argue that this request is 

improper because Brigida does not challenge the recently enacted FAA Extension, 

Safety, and Security Act of 2016, which imposes new hiring practices for Air Traffic 

Controllers. The Court agrees. 

 Brigida’s request is equitable in nature, but “[c]ourts of equity can no more 

disregard statutory and constitutional requirements and provisions than can courts of 

law.” Armstrong v. Exceptional Child Care Ctr., Inc., 135 S. Ct. 1378, 1385 (2015). In 

enacting the FAA Extension, Safety, and Security Act, Congress sought to give hiring 

preference to more experienced air traffic controllers. See 49 U.S.C. § 44506(f)(1)(A) 

(giving preference to “qualified individuals maintaining 52 consecutive weeks of air 

traffic control experience”). The Act eliminates the BQ for CTI graduates, but does not 

restore the Qualified Applicant Register or give hiring preference to CTI graduates who 

pass the AT-SAT. Brigida admittedly does not challenge the Act under Title VII; his 

challenge remains against the FAA’s elimination of the Qualified Applicant Register at 

the end of 2013. Although Title VII permits the Court to “order such affirmative action 

as may be appropriate” to make Brigida whole, 42 U.S.C. § 2000e-5(g)(1), the Court 

cannot prescribe relief in contravention of an unchallenged statute. 

 Brigida argues that the Act does not grant full relief to him and the putative class 

members. (Doc. 29 at 17.) He asserts that the Act “can only limit relief in this case if the 

Court decide[s] that the 2016 Act expressly repeals or amends the enforcement provisions 

of Title VII.” (Id. at 18.) But the effect of the Act on Title VII is irrelevant. The Act 

supersedes the FAA hiring practices challenged by Brigida in this suit. Brigida does not 

dispute that the hiring practices he originally challenged are no longer employed by the 

FAA—the BQ is no longer used to evaluate CTI graduates. Nor does he argue that the 

Act discriminates in hiring on the basis of race. Boiled down further, his allegations 

reveal that he is simply dissatisfied that the FAA changed its hiring practices and decided 

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to give preference to more experienced controllers, which the FAA is free to do as long 

as it does not violate Title VII. 

 Furthermore, Brigida cites no authority for granting the equitable relief he seeks. 

If the Court granted his requested relief, the FAA would be bound by two inconsistent 

directives: (1) a court order to reinstate the Qualified Applicant Register and give 

preference to CTI graduates who passed the AT-SAT, and (2) the Act, which directs that 

hiring preference be given to experienced Air Traffic Controllers. Brigida does not argue 

that both of these directives can reasonably be accomplished. Accordingly, the Court 

strikes this claim for relief from the second amended complaint. 

III. Transfer 

 Defendants argue that the remainder of this action should be transferred to the 

District of Columbia. They argue that venue is improper in this district, and even if 

venue is proper, the Court should exercise its discretion and transfer this action for the 

convenience of the parties. Defendants also point out that, since filing this lawsuit, 

Brigida has relocated from Arizona to Arlington, Virginia—a few miles outside of 

Washington, D.C. Because venue is improper in this District, the Court will not address 

whether discretionary transfer is warranted. 

A. Improper Venue 

 Venue for a Title VII claim is proper (1) “in any judicial district in the State in 

which the unlawful employment practice is alleged to have been committed,” (2) “in the 

judicial district in which the employment records relevant to such practice are maintained 

and administered,” (3) “or in the judicial district in which the aggrieved person would 

have worked but for the unlawful employment practice.” 42 U.S.C. § 2000e-5(f)(3). 

“Plaintiff has the burden of proving that venue is proper in the district in which the suit 

was initiated.” Golden Scorpio Corp. v. Steel Horse Bar & Grill, 596 F. Supp. 2d 1282, 

1286 (D. Ariz. 2009) (internal quotation marks omitted). 

 It is undisputed that (1) the FAA’s decision to adopt a new hiring process was 

made in Washington, D.C., (2) the relevant employment records are kept at the FAA 

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headquarters in Washington, D.C., and (3) Brigida cannot demonstrate that he would 

have worked in Arizona but for the alleged unlawful employment practice. Brigida 

argues, however, that courts have found that “venue is proper in both the forum where the 

employment decision is made and the forum in which that decision is implemented or its 

effects are felt.” Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 

506 (9th Cir. 2000). Relying on Passantino, he asserts that he was a resident of Arizona 

when he applied for the ATCS position, and therefore the effects of the FAA’s decision 

to change its hiring practices were felt in Arizona. (Doc. 29 at 20.) 

 In Passantino, the plaintiff brought a failure-to-promote claim in the Western 

District of Washington, where she worked for nearly two decades. 212 F.3d at 500-03. 

The defendant argued that venue was proper in New Jersey where the decision to take the 

unlawful employment action was made. Id. at 504. The court rejected the defendant’s 

argument, noting that “venue should be found where the effect of the unlawful 

employment practice is felt: where the plaintiff works, and the decision to engage in that 

practice is implemented.” Id. at 505. 

 The court in Davidson v. Korman, No. C 09-1695 SBA, 2010 WL 3515760, at *3 

(N.D. Cal. Sept. 8, 2010) addressed Passantino’s ruling, and the Court finds its reasoning 

persuasive. In Davidson, the plaintiff worked as an attorney for the Army Corps of 

Engineers in Sacramento, California, but lived in San Francisco. Id. at *1. She filed a 

retaliation claim under Title VII in the Northern District of California. Id. The 

defendants moved to dismiss for improper venue, arguing that the alleged unlawful 

employment practices occurred in Sacramento, which is in the Eastern District of 

California. Id. at *2. The relevant employment records were also kept in that district. Id. 

Relying on Passantino, the plaintiff argued that venue was proper in San Francisco 

because she lived there and felt the effects of the unlawful employment decision there. 

Id. at *3. The court rejected this argument, noting that “an out-of-context quotation” 

from Passantino does not support venue in the district where the plaintiff lived or “had 

interactions with . . . in connection with her job.” Id.

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 The result is no different here. Like Davidson, Brigida argues that venue is proper 

in this District simply because he once lived here. A close reading of Passantino reveals 

that its holding should not be construed so broadly. The court began by noting that, “[i]n 

general, the effect if Title VII’s venue provision is to allow suit in the judicial district in 

which the plaintiff worked or would have worked.” 212 F.3d at 504-05. To further 

support its decision, the court relied on principals of personal jurisdiction, namely that 

jurisdiction is proper over a defendant who has no contacts with the state if the effects of 

the defendant’s actions are felt in that state. Id. at 505. Indeed, it necessarily follows that 

plaintiffs who are “unlawfully denied a promotion . . . feel the effects of their injury 

where they actually work.” Id. The court appeared to define the phrase “where the effect 

of the unlawful employment practice is felt,” as the place “where the plaintiff works, and 

the decision to engage in that practice is implemented.” Id.

 Here, Brigida never worked for the FAA. He simply filed suit in Arizona because 

he lived here at the time. Under Passantino, venue is not proper—Brigida did not work 

in Arizona and the alleged unlawful practice was not implemented here. In fact, the 

argument for venue is this case is even more attenuated than that posed in Davidson, 

given that Brigida has since moved from Arizona to Arlington, Virginia, and thus can no 

longer reasonably assert that the effects of the alleged unlawful employment decision are 

felt here. Consequently, the Court finds that venue is improper in this district. 

B. Transfer of this Case to the District of Columbia is Appropriate 

 Because venue is improper in this district, the Court may “transfer [the] case to 

any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). 

Defendants seek transfer to the District of Columbia. Brigida seeks transfer to the 

Western District of Oklahoma because “all CTI graduates must complete a training 

course at the FAA Academy in Oklahoma City upon hiring by the FAA.” (Doc. 29 at 

23.) Therefore, he asserts he “would have worked in Oklahoma City, at least for the 

length of [his] training.” (Id. at 23-24.) Brigida also asserts that relevant witnesses are 

located there and that “meetings that preceded the challenged actions were held in 

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Oklahoma City.” (Id. at 24.) Last, he argues that the Western District of Oklahoma 

would be more convenient for his witnesses and counsel. (Id.) 

 The Court finds that this action should be transferred to the District of Columbia. 

Defendant is headquartered there, Brigida lives close nearby, the relevant documents are 

located there, the alleged discriminatory employment actions were taken there, and 

Defendants have several witnesses that are located in or near the area. (Doc. 27-1, ¶¶ 2, 

4-6, 10, 12, 13, 15.) It is undisputed that this action could have been filed in that district. 

Brigida identifies no witnesses that will be required to travel a great distance to testify. 

Nor does he identify the content of the alleged meetings that took place in Oklahoma 

City. As such, the most appropriate and convenient venue for the parties is the District of 

Columbia. 

IT IS ORDERED that: 

1. Defendants’ motion to dismiss, (Doc. 27), is GRANTED. 

2. Count two of the Second Amended and Supplemental Complaint is 

DISMISSED. 

3. Defendants U.S. Department of Transportation, Federal Aviation 

Administration, Michael Huerta, and Stephanie Jones are DISMISSED. 

4. Plaintiff’s request that the Qualified Applicant Register be reinstated and 

that hiring preference be given to CTI graduates who passed the AT-SAT is 

STRICKEN from the Second Amended and Supplemental Complaint. 

5. This Clerk is directed to TRANSFER this action to the United States 

District Court for the District of Columbia. 

Dated this 4th day of November, 2016. 

Douglas L. Rayes 

United States District Judge 

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