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Brigida v. United States Department of Transportation

United States District Court, D. Arizona

November 4, 2016

Andrew J Brigida, Plaintiff,
v.
United States Department of Transportation, et al., Defendants.

          ORDER

          Douglas L. Rayes United States District Judge.

         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 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 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 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 ...


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