The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
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.*fn1 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 to 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.
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
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 Federal 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 specialist positions.*fn2 After 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 master*fn3 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.
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 result 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 with 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.
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 (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 ...