Petition for Writ of Certiorari — Michael Broaden, Petitioner v. Department of Transportation

Supreme Court briefFeb 1, 2022

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IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL BROADEN, Petitioner

DEPARTMENT OF TRANSPORTATION, Respondent

On Petition for Writ of a Certiorari

to the United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL G. BROADEN, prose

332 Yosemite Way

Denver, Colorado 80230

mikebroaden@gmail.com

(970) 443-7295

QUESTIONS PRESENTED

Whether federal agencies can l) formulate job position qualifications that

violate federal laws that prohibit military status discrimination per the Uniformed

Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C.

§ 4311) and/or 2) refuse to credit equivalent and specialized work experience

gained while serving in the U.S. Armed Forces with regard to position eligibility

determination that violate USERRA, 38. U.S.C. § 4311.

LIST OF PARTIES

Petitioner is Michael G. Broaden, pro se.

Respondent is the Department of Transportation:

Matthew Roche

Attorney for Respondent

Commercial Litigation Branch

Civil Division

Department of Justice

P.O. Box 480

Ben Franklin Station

Washington, DC 20044

Telephone: (202) 616-0466

RELATED PROCEEDINGS

United States Court of Appeals (Federal Circuit):

Michael Broaden v. Department of Transportation, No. 2021-2000

(Nov. 17, 2021)

United States Merit Systems Protection Board (MSPB):

Michael Broaden v. Department of Transportation, No. DE-4324-20-0168T-2

(Feb. 26, 2021)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

TABLE OF CONTENTS

111

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

This Case has National Importance as it has Significant Consequence to U.S.

Servicemembers, the FAA, and Users of the National Airspace System (NAS)... 7

II. 38 U.S.C. § 4311 is Clear to Prohibit Discrimination Against Persons

Because of Their Service in the Uniformed Services.........................................

III. Even if 38 U.S.C. § 4311 is Ambiguous, Supreme Court Precedent Requires

USERRA be Liberally Construed in Favor of Servicemembers......................

CONCLUSION

PROOF OF SERVICE

INDEX TO APPENDICES

Appendix A - U.S. Court of Appeals for Federal Circuit Decision (Nov. 17, 2021)

Appendix B ■ MSPB Decision (Feb. 26, 2021)..........................................................

Appendix C - Petitioner’s Side-by-side FAA Certificates........................................

18a

Appendix D - C.F.R 14 §§ 65.31-65.41, 65.45 Tower Operators; Certificates, etc.... 19a

Appendix E - Petitioner’s FY2018 Performance Report....................

23a

Appendix F - FAA Air Traffic Controller Workforce Plan 2021-2030

27a

Appendix G - Miscellaneous..................................................................

28a

TABLE OF AUTHORITIES

Page

Cases

Brown v. Gardner,

513 U.S. 115 (1994)

Grover v. Office ofPers. Mgmt.,

828 F.3d 1378, 1383 (Fed. Cir. 2016)

Mayers v. Merit Sys. Prot. Bd., 693 F. App'x 902, 903 (Fed. Cir. 2017)

(citing Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1182 (Fed. Cir. 1994))

McGuire v. United Parcel Serv.,

152 F .3d 673, 676 (7th Cir. 1998)

Monroe v. Standard Oil Co.,

452 U.S. 549 (1981).............

Constitutional Provisions

United States Constitution, Amendment V

2, 16

United States Constitution, Amendment XIV, Section 1

2, 16

Statutes

28 U.S.C. § 1254 (Courts of appeals! certiorari; certified questions)

1,2

38 U.S.C. § 4301 (Veterans’ Benefits, USSERA of 1994, Purposes! Sense of Congress)

............................................................................................................................................... passim

38 U.S.C. § 4311 (Veterans’ Benefits, USSERA of 1994, Discrimination Prohibited)

passim

38 U.S.C. § 4327(b) (Veterans’ Benefits, USSERA of 1994, No Statutes of Limitations)

.................................... .......................................................................................................... passim

Regulations

14 C.F.R. §§ 65.31-65.41, 65.45 (ATC Tower Operators! Certificates & Eligibility).... 10

Legislative materials

137 Cong. Rec. H2972-80, H2978 (May 14, 1991) (statement of Rep. Penny)

137 Cong. Rec. S6035, S6058 (May 16, 1991) (statement of Sen. Cranston) .

H.R. Rep. No. 103-65 (1993)............... ...............................................................

passim

Miscellaneous

USAJOBS.GOV Equal Employment Opportunity Policy,

httpsV/www.usajobs.gov/Help/equal-employment-opportunity/

passim

Air Force Communications Command and the Aftermath of the Air Traffic Controllers

Strike, 1981-1983, Office of Air Force Communications Command (AFCC) History,

http://www.afcommatc.org/uploads/3/4/3/0/34302180/afcc_aftermath_atc_strike_19811983_16mb.pdf.

Smithsonian National Air and Space Museum Wall of Honor: Col Derrel L. Dempsey,

httpsV/airandspace.si.edu/support/wall-of-honor/derrel-l-dempsey

PETITION FOR WRIT OF CERTIORARI

Petitioner Michael Broaden, a U.S. military veteran, respectfully requests the

issuance of writ of certiorari to review the judgment of the United States Court of

Appeals for the Federal Circuit No. 2021-2000 or in the alternative, a summary

reversal or a remand to the MSPB for corrective action.

OPINIONS BELOW

The November 17, 2021 decision of the United States Court of Appeals for

the Federal Circuit in No. 2021-2000 is not published but is reproduced at App.

la-8a. The February 26, 2021 decision of the Merit Systems Protection Board in

No. DE-4324-20-0168T-2 is not published but is reproduced at App. 9a-17a.

JURISDICTION

The judgement of the court of appeals was entered on November 17, 2021. The

jurisdiction of this Honorable Court is invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment V*

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a grand jury, except in cases arising in the land or

naval forces, or in the militia, when in actual service in time of war or public danger;

nor shall any person be subject for the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just compensation.

United States Constitution, Amendment XIV:

Section 1. All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state wherein they

reside. No state shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

28 U.S.C. § 1254 - Courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by the Supreme Court by the following

methods:

(l) By writ of certiorari granted upon the petition of any party to any civil or criminal

case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any civil

or criminal case as to which instructions are desired, and upon such certification the

Supreme Court may give binding instructions or require the entire record to be sent

up for decision of the entire matter in controversy.

38 U.S.C. §4301 - Veterans’ Benefits, USERRA; Purposes; sense of Congress

(a) The purposes of this chapter are—

(l) to encourage noncareer service in the uniformed services by eliminating or

minimizing the disadvantages to civilian careers and employment which can result

from such service;

(2) to minimize the disruption to the lives of persons performing service in the

uniformed services as well as to their employers, their fellow employees, and their

communities, by providing for the prompt reemployment of such persons upon their

completion of such service; and

(3) to prohibit discrimination against persons because of their service in the

uniformed services.

(b) It is the sense of Congress that the Federal Government should be a model employer

in carrying out the provisions of this chapter.

38 U.S.C. § 4311 * Discrimination against persons who serve in the uniformed services

and acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of, performs, has performed,

applies to perform, or has an obligation to perform service in a uniformed service shall

not be denied initial employment, reemployment, retention in employment, promotion,

or any benefit of employment by an employer on the basis of that membership,

application for membership, performance of service, application for service, or

obligation.

(b) An employer may not discriminate in employment against or take any adverse

employment action against any person because such person (l) has taken an action to

enforce a protection afforded any person under this chapter, (2) has testified or

otherwise made a statement in or in connection with any proceeding under this chapter,

(3) has assisted or otherwise participated in an investigation under this chapter, or (4)

has exercised a right provided for in this chapter. The prohibition in this subsection

shall apply with respect to a person regardless of whether that person has

performed service in the uniformed services.

(l) under subsection (a), if the person’s membership, application for membership,

service, application for service, or obligation for service in the uniformed services is a

motivating factor in the employer’s action, unless the employer can prove that the

action would have been taken in the absence of such membership, application for

membership, service, application for service, or obligation for service! or

(2) under subsection (b), if the person’s (A) action to enforce a protection afforded

any person under this chapter, (B) testimony or making of a statement in or in

connection with any proceeding under this chapter, (C) assistance or other

participation in an investigation under this chapter, or (D) exercise of a right

provided for in this chapter, is a motivating factor in the employer’s action, unless

the employer can prove that the action would have been taken in the absence of

such person’s enforcement action, testimony, statement, assistance, participation, or

exercise of a right.

(d) The prohibitions in subsections (a) and (b) shall apply to any position of

employment, including a position that is described in section 4312(d)(1)(C) of this

title.

38 U.S.C. § 4327 - Noncompliance of Federal officials with deadlines; inapplicability of

statutes of limitations

(b) Inapplicability of Statutes of Limitations.—

If any person seeks to file a complaint or claim with the Secretary, the Merit Systems

Protection Board, or a Federal or State court under this chapter alleging a violation of

this chapter, there shall be no limit on the period for filing the complaint or claim.

STATEMENT OF THE CASE

Starting Nov 15, 2011, the petitioner has submitted numerous applications for

an Air Traffic Control (ATC) Support Specialist (U.S. OPM 2152 series) position with

the Federal Aviation Administration (FAA, an agency under the Department of

Transportation). After each application review, the petitioner was deemed ineligible

as the FAA would not credit his listed 138 weeks of FAA-certified ATC experience

since it was obtained while he was serving in the U.S. military. Of the three (3)

qualifications for the position, only one needs to be met. One of the qualifications

states, “Must have been facility rated or area certified for at least 1 year (52 weeks) in

an air traffic services facility.” The Petitioner asserts this qualification is written in a

discriminatory manner against veterans as “air traffic services facility” is self-defined

by the FAA to be only inclusive of FAA air traffic services facilities and exclusive of

military air traffic services facilities. The Petitioner is seeking corrective action

pursuant to the Uniformed Services Employment and Reemployment Rights Act

(USERRA) of 1994, 38 U.S.C. § 4311. USERRA has no statutes of limitation per 38

U.S.C. § 4327 (b).

In its decision, the MSPB denied corrective action. The U.S. Court of Appeals

for the Federal Circuit affirmed the MSPB’s decision. The petitioner now seeks a writ

of certiorari from the Supreme Court.

REASONS FOR GRANTING THE WRIT

This Court should grant review in this case to provide guidance on how to

apply USERRA; a federal statute that has confounded, and will continue to confound,

lower courts. Protecting our veterans is of national interest and deserves appropriate

attention. Correct application of USERRA law is critical. Properly understood,

USERRA sets forth that veterans shall not be denied promotion or any benefit of

employment by an employer on the basis of veteran status. 38 U.S.C. § 4311. With

no change, lower courts, to include the MSPB and the U.S. Court of Appeals for the

Federal Circuit, are systematically not properly applying the law and unwittingly

endorsing military status discrimination. In this case, military status discrimination

is via the FAA’s use of the oblique term “air traffic services facility” used in position

qualifications. Shockingly, “air traffic services facility” is self-defined by the FAA to

only be inclusive of FAA ATC facilities and exclusive of military ATC facilities. This

is despite that FAA Airman Certificates for Control Tower Operators are the same,

produced on the same FAA form number, and equivalent for both military and

civilian FAA facilities as shown by the Petitioner’s own certificates (App. 18a). A

side-by-side review of Petitioner’s certificates for Control Tower Operator, both issued

by the FAA, is substantial evidence and a powerful reveal that military status

discrimination is clear and present. On the left is an FAA issued Airman Certificate

for Control Tower Operator earned while the Petitioner was in the military. On the

right is an FAA issued Airman Certificate for Control Tower Operator earned while

the Petitioner was a civilian in the FAA. The certificate on the right has a checked

box that states, “THIS IS A REISSUANCE OF THIS GRADE OF CERTIFICATE”. It

does not indicate “military grade” or “civilian grade”. It indicates “THIS GRADE”.

The certificate on the right also lists a “DATE OF SUPERSEDED AIRMAN

CERTIFICATE” as Dec 2, 1999 which is the referenced date of issuance of the

Petitioner’s certificate on the left earned while in the military. These matched dates

inextricably tie the certificates together in their equivalency. Here, inclusive of the

collective record and under common sense, is indication of "evidence that a reasonable

mind may take as sufficient to establish a conclusion." Grover v. Office ofPers.

Mgmt., 828 F.3d 1378, 1383 (Fed. Cir. 2016).

The FAA denied and continues to deny the Petitioner eligibility for promotion

to the ATC support specialist position conditioned with the motivating factor and on

the basis that the Petitioner’s equivalent ATC experience was obtained while serving

in the military. If the FAA simply credited its own FAA-issued certificate that the

Petitioner obtained while serving in the military, the Petitioner would then be

deemed eligible. In addition, the Petitioner would have been selected from a list of

eligible candidates per testimony of a former FAA air traffic hiring manager with +30

years of FAA ATC experience if the FAA had placed the Petitioner on an eligible

candidate list.

Both military and civilian ATC controllers perform the exact same function

(separate aircraft and issue safety alerts) to a combination of both military and

civilian aircraft at the same airport or within the same airspace sector. Furthermore,

military controllers routinely control civilian aircraft and civilian FAA controllers

routinely control military aircraft. While some military aircraft can differ in function

and mission compared to civilian aircraft, ATC rules and procedures for military and

civilian controllers are the same by necessary design. A single FAA-provided witness

testified that there are “functional differences” between military ATC and FAA ATC

(Petr’s Br. at 15). This proffered claim of “functional differences” is false and leads to

serious injustice. In direct opposition to this single FAA-provided witness, three (3)

current FAA employees with over 90 years of combined military ATC and civilian

FAA ATC experience testified in support of the Petitioner that military ATC

experience and civilian FAA ATC experience are equivalent and there are no

functional differences between the two (Pet’r’s Reply Br. at 10-11 and

DE200168I2_2021-01-14_03DUNN202011161014.mp3, 5:07-7:16). The proven

operational and flexible design of our country’s common military-civilian ATC system

has a foundation of meaningful and necessary equivalents in knowledge, training,

function, material, and experience for both FAA and military controllers. Because

lower courts have not properly applied USERRA law in this case, this Court’s timely

review is warranted.

I. This Case has National Importance as it has Significant Consequence to U.S.

Servicemembers, the FAA, and Users of the National Airspace System (NAS)

There is a critical need for safe air travel in the United States to sustain

economic and national defense interests. By design and also to prevent the

recurrence of military-civilian aircraft catastrophes of the past, a common militarycivilian system of rules, regulations, and procedures known as the National Airspace

System (NAS) has been established. In the order that prescribes ATC procedures and

phraseology for use by “persons” (military or civilian) providing ATC services, FAA

Joint Order (JO) 7110.65 Air Traffic Control, the NAS is defined as “The common

network of U.S. airspace! air navigation facilities, equipment and services, airports or

landing areas! aeronautical charts, information and services! rules, regulations and

procedures, technical information, and manpower and material. Included are system

components shared jointly with the military.” Today, the importance of a common

military-civilian NAS is as critical as ever. Military and civilian FAA controllers have

common rules, regulations, coordination procedures, and equivalent ATC certificates

that make this possible to ensure the safety of all air passengers. Both military and

FAA civilian controllers use the same +650-page FAA JO 7110.65 Air Traffic Control

procedure document that outlines the duty priorities of separating aircraft and

issuing safety alerts as well as providing support to national security and homeland

defense activities. This is true for all controllers, military and civilian. Any attempt

to classify the purpose of ATC, ATC duty priorities, or equivalent ATC experience

gained thereof as only applicable to the Department of Transportation (DOT) or only

applicable to the Department of Defense (DOD) weakens the NAS and degrades its

intended common purpose, lessens air safety, and impedes collaborative

improvement. Redundancy in air safety, system efficiency, transport of personnel and

cargo, airborne emergencies, airborne firefighting, search and rescue, natural disaster

recovery, numerous joint-use airports (both military and civilian based aircraft),

readiness against air attacks on the U.S., and any necessary military-civilian

coordinated air security response are just some examples that exhibit a clear need for

a common military-civilian ATC system.

The U.S. Office of Personnel Management (OPM) Position Classification

Standard for Air Traffic Control Series 2152 states, “Whether located at a civilian

airport, a military base, or a joint military/civilian airport, all (air traffic control)

terminals perform similar functions...”. Furthermore, the OPM defines specialized

experience in its occupational requirements of the 2152 series as “experience in a

military or civilian air traffic facility”. The U.S. OPM does not distinguish the

difference of specialized ATC experience between military and civilian ATC

experience because no substantial, material, or functional difference exist between

the two. Assuming arguendo that somehow material or functional differences

between military controllers and civilian controllers existed, a reasonable person

might wonder if passengers in a civilian aircraft being controlled by military

controllers should be given an FAA warning about any added risk. Fortunately, and

by design of the NAS, a warning of this type does not exist, nor is it necessary to exist

as military and civilian controllers perform the same service of separating aircraft

and issuing safety alerts.

In C.F.R. Title 14. Aeronautics and Space, Chapter I. FEDERAL AVIATION

ADMINISTRATION DEPARTMENT OF TRANSPORTATION, Subchapter D.

AIRMEN, Part 65. CERTIFICATION: AIRMEN OTHER THAN FLIGHT

CREWMEMBERS, Subpart B. ATC Tower Operators; commonality and equivalent

specialized experience that apply to both civilian and military controllers is also made

clear. As there exists a need for a common military-civilian system, there is notably

no qualification or experience distinction made between civilian and military

controllers with respect to the requirements of C.F.R. Title 14 Chapter I Subchapter

D. Part 65 Subpart B. ATC Tower Operators. This includes, but is not limited to

subsections with titles: § 65.31 Required credentials, certificates, and ratings or

qualifications! § 65.33 Eligibility requirements: General; § 65.35 Knowledge

requirements! § 65.37 Skill requirements: Operating positions; § 65.39 Practical

experience requirements: Facility rating; § 65.41 Skill requirements: Facility ratings;

and § 65.45 Performance of duties. Even more notably, 14 C.F.R. § 65.39 titled

"Practical experience requirements: Facility rating" specifically states,

"Each applicant for a facility rating at any ATC tower must have satisfactorily

served - (a) As an ATC tower operator at that control tower without a facility

rating for at least 6 months; or (b) As an ATC tower operator with a facility

rating at a different control tower for at least 6 months before the date he applies

for the rating. However, an applicant who is a member of an Armed Force of the

United States meets the requirements of this section if he has satisfactorily

served as an ATC tower operator for at least 6 months."

The Petitioner held an FAA -issued ATC tower operator certificate for 138 weeks (2.65

years) while a member of an Armed Force of the United States, a time far beyond any

6-month or 52-week benchmark.

A single FAA-provided witness for the Respondent asserts there are functional

differences between FAA and military ATC facilities. At best, over reliance on this

overly broad statement given without context is both incorrect and a myopic view of

the NAS and symbiotic missions of the DOD (to provide the military forces needed to

deter war and ensure our nation's security) and DOT (to ensure America has the

safest, most efficient and modern transportation system in the world). At worst, the

FAA witness’ assertion is disheartening to any military controller holding an FAAissued certificate, promotes a breeding ground for military status discrimination,

hinders efficiency, and erodes trust to ensure the safest and most secure aviation

system in the world. There is no opportunity for a safe NAS without national security

just as there is no opportunity for national security without a safe NAS. In the

simplest of terms, the DOD and DOT air traffic controllers need each other to ensure

both the vitality and the defense of our country. This is underscored by the FAA’s JO

7110.65 Air Traffic Control common military-civilian procedures, by the design of our

NAS, by the OPM, and by applicable C.F.R.s in Title 14 - Aeronautics and Space. In

the DOT, DOD, or in any U.S. Department for that matter; military status

discrimination simply should have no home.

While the need for a common military-civilian NAS is as strong as ever today,

the stability of the NAS has been put in jeopardy in the past. In 1981, civilian FAA

controllers engaged in a strike that had the potential to affect safe travel of millions

of Americans and the safe flight of military aircraft. Filling in for these striking

civilian FAA controllers were military controllers that kept the nation’s airways safe

and operational. These military controllers were deployed to over 75 civilian FAA air

traffic service facilities during this timeframe. The military-civilian ATC experience

equivalency is exhibited in an official report titled, “Air Force Communications

Command (AFCC) and the Aftermath of the Air Traffic Controllers Strike 1981-1983”.

In this report, Colonel Derrel L. Dempsey wrote, “It (FAA civilian controller strike)

also demonstrated that AFCC controllers (military controllers), working in new and

often stressful environments, were equal to their FAA counterparts in ensuring the

safe and smooth operation of the nation's air traffic control system.” (App. 28a).

Information on Colonel Derrel L. Dempsey, a Command Pilot, can be found on the

Smithsonian National Air and Space Museum Wall of Honor,

https V/airandspace.si.edu/support/wall-of-honor/derrel-l-dempsey, “Highest rank held

was Colonel and distinguished himself with service as the Deputy Chief of Staff for

Air Traffic Services, Air Force Communications Command 1979-1984. During that

assignment, he deployed more than 612 combat ready Air Force Air Traffic

Controllers in support of National Objectives to more than 75 FAA facilities during

the 1981-1983 FAA Air Traffic Controller Strike. Due to his legendary service, the

United States Air Force Air Traffic Control Manager of the Year Award, was named

after him.” (App. 28a).

The Board abuses its discretion when any of these conditions are met: "its

decision (l) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous

conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a

record that contains no evidence on which the [Board] could rationally base its

decision.” Mayers v. Merit Sys. Prot. Bd, 693 F. Appl x 902, 903 (Fed. Cir. 2017)

(citing Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1182 (Fed. Cir. 1994)). In the

case of the Petitioner, inclusive of the record, and revealing lower court error is the

Petitioner’s FY2018 performance report signed by his FAA supervisor and FAA

manager, "In addition to his duties in his assigned specific functional area, Mr.

Broaden (Petitioner) has taken on all the same tasks and responsibilities as a (ATC)

Support Specialist in the Airspace and Procedures Office at Denver TRACON." (App.

24a). This excerpt is from a report section titled "Critical Element V- FAA GoaP Make

Aviation Safer and Smarter" where the Petitioner was rated "Significantly Exceeds"

(highest rating available). The Petitioner’s FY2018 performance report directly

reflects that the Petitioner is qualified and capable of performing support specialist

duties at a high level while relying on his equivalent specialized experienced gained

while in the military and holding an FAA'issued certificate for over 138 weeks.

Ultimately, our military and how we treat our veterans is a reflection of our

country and of ourselves. Increasing the diversity of employees within the FAA, to

include military status diversity, serves to enhance the depth and breadth of

knowledge necessary for continuous improvement and readiness of the NAS. The

missions of both national defense and transportation safety thrive in an environment

built on trust, diversity, equity, and inclusion. Anything less is intolerable.

Honest and hardworking members of our military aspiring to improve their

lives deserve to be treated with equality under the law. This is the overarching

purpose of USERRA, which pays homage to all our military servicemembers who, day

in and out, help to strengthen the backbone of our country through their countless

contributions. Moving to credit equivalent military ATC experience will then align

with USERRA law and the goals of aviation safety. This, in turn, will allow FAA

selecting officials to review and consider a more complete list of eligible candidates

and ultimately make best-fit selections. In the case of the Petitioner, he was never

allowed to compete on merit; denied opportunities to be on selection lists; and denied

subsequent selection. The importance of this case goes beyond particular facts and

the parties involved. Here, the judiciary has a chance to stand as a beacon of hope to

ensure that justice, the values, and the principles that form the bedrock of democracy

do not become a mere afterthought.

II. 38 U.S. Code § 4311 is Clear to Prohibit Discrimination Against Persons Because

of Their Service in the Uniformed Services

The text of USERRA identifies three core purposes: (l) “to encourage

noncareer service in the uniformed services by eliminating or minimizing the

disadvantages to civilian careers and employment which can result from such service”

>' (2) “to minimize the disruption to the lives of persons performing service in the

uniformed services as well as to their employers, their fellow employees, and their

communities, by providing for the prompt reemployment of such persons upon their

completion of such service,” and (3) “to prohibit discrimination against persons

because of their service in the uniformed services.” 38 U.S.C. § 4301(a).

Congress expanded substantive protections to prohibit employment

discrimination on the basis of military service-discrimination that by the 1960s

had "become an increasing problem." Monroe v. Standard Oil Co., 452 U.S. 549,

557 (quoting S. Rep. No. 1477, 90th Cong., 2d Sess., at 1-2 (1968)). In the wake of the

Persian Gulf War, Congress enacted USERRA to "restate past amendments in a

clearer manner and to incorporate important court decisions interpreting the law"

while correcting judicial misinterpretations. 137 Cong. Rec. S6035, S6058 (May 16,

1991) (statement of Sen. Cranston). USERRA aimed to "clarify, simplify, and, where

necessary, strengthen the existing veterans' employment and reemployment rights

provisions.” 137 Cong. Rec. H2972-80, H2978 (May 14, 1991) (statement of Rep.

Penny). Hard work over a three-year period by an interagency task force comprised

of representatives of the Departments of Labor, Defense, and Justice, and of the

Office of Personnel Management made USERRA possible. Congress has long

recognized that when someone puts on a uniform to serve in our military, we owe

them certain obligations in return. One obligation is the assurance, through laws,

that veterans will be free from any discrimination with regard to initial employment,

reemployment, retention in employment, promotion, or any benefit of employment.

To the individual citizen-soldier, the men and women on whom this Nation has

proudly relied in times of crisis, these rights are critical.

An individual's commitment and obligation to perform air traffic control (ATC)

duties under an FAA-issued certificate while in the uniformed services ought not to

diminish the significant contributions or deny credit of the experience of that person's

service of performing ATC duties in the armed forces for the benefit of the NAS.

Equivalent specialized experience gained in ATC as a servicemember does not

warrant discrimination when the uniform is no longer worn. This is significant in

light that discrimination under USERRA includes that based on military service. In

the FAA's own Air Traffic Controller Workforce Plan, it specifically states, “over

10,800 military controllers provide air traffic services for the NAS.” (App. 27a).

In addition and with respect to the U.S. Constitution, the Fifth Amendment

has an explicit requirement that the Federal Government not deprive individuals of

"life, liberty, or property," without due process of the law and an implicit guarantee

that each person receive equal protection of the laws. The Fourteenth Amendment

Section 1 explicitly prohibits violation of an individual's rights of due process and

equal protection. Equal protection limits Federal governments' power to discriminate

in their employment practices by treating employees, former employees, or job

applicants unequally because of membership in a group. This concept is explicitly

stated for ATC support specialist positions and others in the Equal Employment

Opportunity Policy on USAJOBS.GOV, “The United States Government does not

discriminate in employment on the basis of race, color, religion, sex (including

pregnancy and gender identity), national origin, political affiliation, sexual

orientation, marital status, disability, genetic information, age, membership in an

employee organization, retaliation, parental status, military service, or other non

merit factor.” (App. 28a). While the Petitioner fully supports agencies being able to

determine their own needs to meet mission requirements and to set necessary

position qualifications, qualifications cannot and should not be exclusionary and/or

discriminatory towards veterans with equivalent specialized experience.

III. Even if 38 U.S.C. § 4311 is Ambiguous, Supreme Court Precedent Requires

USERRA be Liberally Construed in Favor of Servicemembers

Assuming arguendo that 38 U.S.C. § 4311 is somehow unclear; it must be

liberally interpreted in favor of servicemembers. The Seventh Circuit held that

"USERRA is to be liberally construed in favor of those who served their country."

McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir. 1998). This canon of

construction does not simply serve as a tiebreaker between a pair of plausible

arguments, rather, the Supreme Court has made clear, any "interpretive doubt is to

be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. 115, 118 (1994). This

canon applies broadly, including to the interpretation and reconciliation of separate

subsections of veterans' rights statutes, and it "remains in full force and effect" under

USERRA, as Congress explicitly stated in enacting the law. H.R. Rep. No. 103-65, at

19. Military status discrimination will continue until this Court intervenes. Denying

USERRA protections to veterans not only precludes them from vindicating their

rights, it effectively sanctions the discrimination that servicemembers and veterans

frequently encounter in the civilian workforce as a price for serving their country.

Unchecked, this trend will reduce the number of Americans willing to join the Armed

Services and thus threatens the nation’s readiness for real-world events- the very

outcome Congress sought to avoid when enacting USERRA. 38 U.S.C. § 4301.

By continually misinterpreting USERRA and restricting veterans’ rights to be

fully and freely applied, lower courts have lost sight of both the principle and the

purpose of USERRA. 38 U.S.C. §430l(a). The lower courts’ rulings do not make good

sense nor support good policy. In this case and in support of all similarly situated

veterans, this Court should grant timely review to bring justice to balance.

CONCLUSION

For the foregoing reasons, the petitioner respectfully requests that this

Honorable Court issue a writ of certiorari, or in the alternative, a summary

reversal or a remand to the MSPB for corrective action.

DATED January 31, 2022.

Respectfully submitted,

/s/ Michael G. Broaden

MICHAEL. G. BROADEN, pro se

332 Yosemite Way

Denver, Colorado 80230

mikebroaden@gmail.com

(970) 443-7295

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.