United States District Court, District of Columbia
Douglas L. Rayes United States District Judge
have filed a motion to dismiss. (Doc. 27.) The motion is
fully briefed. For the reasons below, the motion is
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.)
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.)
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.)
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. (M, |87.)
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., ¶
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.)
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." BellAtl.
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).
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 ...