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September 30, 2005.

KATHLEEN A. BREEN et al., Plaintiffs,
NORMAN Y. MINETA et al. Defendants.

The opinion of the court was delivered by: RICHARD ROBERTS, District Judge


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 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 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).


  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 (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 ...

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