Petition for Writ of Certiorari — Mueller v. Commissioner

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pupreme Court, U.S.

a3 FILED

01 447 sep 12 200k

hea OFFICE OF THE CLERK

In The

Supreme Court of the United States

DEAN DUNGAN,

Petitioner,

SECRETARY,

UNITED STATES OF AMERICA,

DEPARTMENT OF TRANSPORTATION,

and

JANE GARVEY,

ADMINISTRATOR,

UNITED STATES OF AMERICA,

FEDERAL AVIATION ADMINISTRATION,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

JosepH MicHAeL LAMONACA

Attorney at Law

Attorney of Record

for the Petitioner

G & M Building

Suite 3035

Route 202 & 1

Chadds Ford, PA 19317

(610) 558-3376

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Goep

QUESTIONS PRESENTED

1. Whether the United States Third Circuit Court of

Appeals respectfully erred in affirming the District

Court’s summary judgement where the record indicates

that Mr. Dungan’s forced retirement was based on dis-

crimination and a constitutionally impermissible basis of

reprisal by the Government.

2. Whether the United States Third Circuit Court of

Appeals respectfully erred in concluding that the Govern-

ment did not violate Mr. Dungan’s United States Consti-

- tutional Equal Protection rights.

3. Whether the United States Third Circuit Court of

Appeals respectfully erred in sanctioning the District

Court’s departure from the accepted and usual course of

judicial proceedings, by denying Mr. Dungan and the

potential class action members in this matter, all Pre-Trial

Discovery, and all mandated Pre-Trial Procedures, before

the entry of a summary judgement.

4. Whether the United States Third Circuit Court of

Appeals respectfully erred in concluding that the Age

Discrimination in Employment Act did not apply to Mr.

Dungan relating to his employment with the Federal

Aviation Administration based on the Government's dis-

crimination and disparate conduct.

PARTIES TO THE PROCEEDING

The Petitioner, Plaintiff below in this action, is Mr.

Dean Dungan, who resides at 253 Oakfield Drive, New-

ark, Delaware. He was born March 5, 1944, and is cur-

rently age 56.

The Defendant in the action below is the Secretary of

the United States Department of Transportation, 400 7th

Street, SW, Nassif Building, Washington, D.C., and Jane

Garvey, the Administrator of the Federal Aviation

Administration, 800 Independence Avenue, SW, Washing-

ton, D.C.

All parties to the action are set forth in the caption to

this action.

TABLE OF CONTENTS

CUJBSTOUNGS PRESENTED 2... .ccccccccccccscvccess

PARTIES TO THE PROCEEDING ..................

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BPR GI FUT EMRE END 6 6c ccc cccscccccccecceses

INTRODUCTORY STATEMENT ....................

CITATION OF THE OFFICIAL OPINION ENTERED

Ts. vceadeauctecssctdees -

~- STATEMENT OF JURISDICTION...................

CONSTITUTIONAL PROVISIONS AND STATUTES. ..

STATEMENT OF THE CASE ...........cccccccsccees

PETITION FOR WRIT OF CERTIORARI............

1. Whether the United States Third Circuit Court of

Appeals respectfully erred in affirming the Dis-

trict Court’s summary judgement where the

record indicates that Mr. Dungan’s forced retire-

ment was based on discrimination and a constitu-

tionally impermissible basis of reprisal by the

EE Sing nee 466 b0USS Cn KN eesecseensncaene

2. Whether the United States Third Circuit Court of

Appeals respectfully erred in concluding that the

Government did not violate Mr. Dungan’s United

States Constitution Equal Protection rights .....

Equal Protection Age ................eeeeee eee

3. Whether the United States Third Circuit Court of

Appeals respectfully erred in sanctioning the Dis-

trict Court’s departure from the accepted and

usual course of judicial proceedings, by denying

Mr. Dungan and the potential class action mem-

bers in this matter, all Pre-Trial Discovery, and all

mandated Pre-Trial Procedures before the entry

of a summary judgement ....................--

TABLE OF CONTENTS - Continued

Page

4. Whether the United States Third Circuit Court of

Appeals respectfully erred in concluding that the

Age Discrimination in Employment Act did not

apply to Mr. Dungan relating to his employment

with the Federal Aviation Administration based

on the Government's discrimination and dispa-

SD GEE ks 6 ADK as odd dee nc dade BAtheneenesa 18

ADEA - CONGRESSIONAL/EXECUTIVE BRANCH

SEs 4.0 ne uk dbs Gen Keacdecaneend tdaneeersawinds 27

IMPERMISSIBLE PREFERENTIAL TREATMENT.... 28

CE EEE bc ting char e ede dncandeeanstearks 29

JUDGEMENT & OPINION OF THE THIRD CIR-

CUIT COURT OF APPEALS DATED MARCH

oe Feprrrrrry errs Yip rirere rr ree APPENDIX A

SUR PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING EN BANC OF THE

THIRD CIRCUIT COURT OF APPEALS. ..APPENDIX B

SET NMEN bi back cgedewss pe Vedasnetsunses APPENDIX C

TABLE OF AUTHORITIES

Page

Cases

Atchison T. & S.F.R. Co. v. Buell, 480 U.S. 557, 107 S.

Ce, DOUO CGI) ois cv ccdntns inedeaadsecseeriveviass 17

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548

PPP rr errr re err rr rrr rer rr rr re fs

Gregory v. Ashcroft, 501 U.S. 452 (1991)............-. 13

Hazen Paper Company v. Biggins, 507 U.S. 604, 113

B. Ge: TAR Cee a herded sede dsnwsuceseescrenisae 24

Hickey v. Duffy, 827 F.2d 234 (7th Cir. 1987)......... 16

Holmes v. Federal Aviation Administration, 1999 WL

TTUSOE CINE. TOFD ook cc sbnicin cdi da viwde cs iqanteds 25

ladimarco v. Runyon, 1999 WL 69279 (3d Cir. 1999) ..24, 25

Massachusets Bd. of Retirement v. Murgia, 427 U.S.

DOT COTO. ih acce dens chs dawned sn beinaedadeee betes 13

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

G. CR: WORT CI a ck se dventessecussceneaes 43; 20, 20

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694

(ISD) 5 ccunce da vetnvesdédupavesaeneesenkeueans canes 6

Rogers v. Lodge, 458 U.S. 613 (1982) ..........--++--- 12

Sadowski v. Bombardier, 539 F.2d 615 (7th Cir. 1976) .... 16

Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d

ASS tBed Cie. DOI 50 cnes dnuntadsnnianenceeinavan 23

Texas Dept. of Community Affairs v. Burdine, 450

US. 248, 101 S. Ct. 1089 (1981) ................... 26

TABLE OF AUTHORITIES - Continued

Page

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252, 97 S. Ct. 555 (1977)...... 24

Western Airlines v. Criswell, 472 U.S. 400 (1985)...... 13

STATUTES

Bik i me Ge eer er 14, 20

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S UGA. Geeta Goa ec cccccscacescecasee 1, 3, 19, 20, 26

S UBL. Geetha OES eo dccccccccccccccncccesccsusvas 19

BB UGS. BOR Bei ake vcccacnstacddcusvetaness 14, 20

2D UGK. DOUG ERG ccccccscacccececscscessuceuvess 2

2D UGA... Gee BOS oc sikiccccweveseecncucdagsassonen 18

29 UGK. Gocthaws FIGS is ccnccdecucsctecncceacesseus 18

29 UBA.. Gatien GEE cc veiccacsccivcssinccecsuasees 18

29 USL. Gosthot GEG) ook ccccccdccscictveccevevwss 18

ZO UGL.. Sorta Ge cviicccsccvedenstaccesccceseas 3, 22

Eastern District of Pennsylvania Local Rule 16.1..... 15

PAP GOED occ cnceccedscsccneseecussaneeeeee 4, 17

PE Sos cn ccacccice ccenensneeenssnaeheaueaneeeneeen 16

CONSTITUTIONS

Constitution of the United States; Amendment V .... 13

Constitution of the United States, Amendment

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INTRODUCTORY STATEMENT

This is a case of first impression in the United States

of America in both the Federal and State Courts involving

critical aviation safety and public policy issues affecting

all citizens. Mr. Dungan was employed at the Federal

Aviation Administration, as an Air Traffic Area Super-

visor, being hired by the F.A.A. on December 7, 1974.

During the PATCO Controllers’ Strike in 1981, Mr. Dun-

gan remained at his job with the Federal Aviation Admin-

istration despite numerous threats to himself, wife,

family and friends.

The gravamen of Mr. Dungan’s allegations are that,

notwithstanding Mr. Dungan’‘s loyalty and conscientious

decision to honor his sworn oath and refuse to strike in

1981, he is now being penalized as a result of malice

and the constitutionally impermissible basis of reprisal,

as a result of his age and failure to participate in the 1981

strike, et al., and as such was forced to retire at age 56 at

50% of his pension, pursuant to the mandate of 5 U.S.C.

Section 8335, notwithstanding the fact that the rehired

PATCO Air Traffic Controllers can work in operational

capacities past age 56.

Mr. Dungan’s primary argument is that some of his

fellow employees of approximately Mr. Dungan’s age

that entered the Federal Aviation Administration at

approximately the same time as Mr. Dungan, that went

on strike in 1981 in violation of Federal Law, are being

allowed to return to the F.A.A. today past the maximum

entry age for any United States Citizen of 36, as well as

being authorized to work in Air Traffic well past age 56.

In comparison, Mr. Dungan, one of the best qualified,

most dedicated Operational Supervisors in the F.A.A.,

was forced to retire to make room for these unskilled,

untrained, National Security risk individuals, and cannot

re-apply for employment as an Air Traffic Controller

because he is over the age of 36 years and did not

participate in the strike.

CITIATION OF THE OFFICIAL OPINION

ENTERED IN THE CASE

Dungan v. Slater, 252 F.2d 670 (3rd Cir. 2001)

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction over the sub-

ject matter of this appeal pursuant to Supreme Court Rule

10 and 28 U.S.C. Section 1254.

The orders in question are the final Order of Senior

Judge Raymond J. Broderick of the United States District

Court for the Eastern District of Pennsylvania, Docket

Number 99-CV-2376, as affirmed by the order of the

United States Court of Appeals for the Third Circuit

dated March 19, 2001. Rehearing before the United States

Court of Appeals for the Third Circuit was timely

requested and thereafter denied on June 14, 2001. All

Orders and Judgements refereced herein are attached

hereto in Appendix “A”.

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of the United States, 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 in which 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.

5 U.S.C. Section 7311 - Any person whose employment is

suspended or terminated under the authority granted to

heads of department and agencies by or in accordance

with the said Act of August 26, 1950, or pursuant to the

said Executive Order No. 9835 or any other security or

loyalty program relating to officers or employees of the

Government, shall not be reinstated or restored to duty or

re-employed in the same department or agency and shall

not be re-employed in any other department or agency,

unless the head of the department or agency concerned

finds that such reinstatement, restoration, or re-employ-

ment is clearly consistent with the interests of the

National Security, which record shall be made a part of

the record of such department or agency.

29 U.S.C. Section 633(a) - All personnel actions affecting

employees who are at least 40 years of age . . . in execu-

tive agencies as defined in section 105 of Title 5 shall be

made free from any discrimination based on age.

5 U.S.C. Section 8335 (Reproduced in Appendix attached

Hereto).

ial

E.R.C.P. 56(c) - (Motion and Proceedings Thereon), The

motion shall be served at least 10 days before the time

fixed for the hearing. The adverse party prior to the day

of the hearing may serve opposing affidavits. The judge-

ment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgement as a matter of

law.

STATEMENT OF THE CASE~ -

That on or about February 9, 1999 Mr. Dungan for-

warded to the Secretary of the Department of Transporta-

tion, the Administrator of the Federal Aviation

Administration and the United States Equal Opportunity

Employment Commission a Notice of Intent to Sue.

Thereafter, by letter dated March 2, 1999, the United

States Equal Employment Opportunity Commission sent

a letter to the United States Department of Transportation

requesting a response to Mr. Dungan’s complaint within

30 days, which response the Department of Transporta-

tion did not forward.

On May 7, 1999, Mr. Dungan filed a Complaint in this

matter with the Federal District Court for the Eastern

District of Pennsylvania. Requests for discovery on behalf

of the plaintiff were denied and requests for certification

of the class action and pre-trial conferences on behalf of

Mr. Dungan were denied.

Thereafter, the defendants filed a Motion for Sum-

mary Judgement, which Motion was granted by the Dis-

trict Court on February 24, 2000. Mr. Dungan also filed a

Motion for Injunctive Relief with the Trial Court to enjoin

the government from terminating his employment, which

Motion was denied by the District Court on February 24,

2000.

Mr. Dungan filed a timely appeal of the District

Court’s February 24, 2000 Order to the Third Circuit

Court of Appeals on March 6, 2000. Thereafter, on March

20, 2000, Mr. Dungan filed with the Third Circuit Court of

Appeals a Motion for Injunctive Relief which Motion was

denied on June 30, 2000. By Order entered by the Third

Circuit Court of Appeals dated August 30, 2000, the

parties were directed to participate in Appellate Media-

tion, which took place before Joseph A. Torregrossa,

Esquire on October 2, 2000, which process was not suc-

cessful.

The Third Circuit Court of Appeals entered its Opin-

ion and Order in the defendant’s favor dated March 19,

2001. Rehearing before the United States Court of

Appeals for the Third Circuit was timely requested and

thereafter denied on June 14, 2001.

PETITION FOR WRIT OF CERTIORARI

1. Whether the United States Third Circuit Court of

Appeals respectfully erred in affirming the District

Court’s summary judgement where the record indi-

cates that Mr. Dungan’s forced retirement was based

on discrimination and a constitutionally impermis-

sible basis of reprisal by the Government.

This Honorable Court has held that the District

Court’s grant of a summary judgement without a full

exploration of Mr. Dungan’s claim of constitutionally

impermissible reprisal is improper, Perry v. Sindermann,

408 U.S. 593, 92 S. Ct. 2694 (1972). Mr. Dungan alleges

that he is being discriminated and reprised against

because he did not participate in the 1981 PATCO Strike

against the government, which reprisal allegation was

never explored by the District Court allowing no discov-

ery, pre-trial disclosures, depositions, pre-hearing confer-

ences, et al. This allegation is supported by the record in

this matter including the political agenda of former Presi-

dent Clinton who vowed to the AFL/CIO to bring back

the PATCO employees purely for political reasons.

Further support of Mr. Dungan’s reprisal /discrimi-

nation claim is found in the following facts:

1) Mr. Dungan is 57 years of age born

3/5/44.

2) Mr. Dungan commenced his employ-

ment as an air traffic controller with the F.A.A.

in 1974, and was involuntarily released from

employment on June 30, 2000, three months

after turning age 56.

3) Mr. Dungan did not participate in the

PATCO strike of 1981 and upheld the govern-

ment’s oath not to strike, staying on the job.

4) At the commencement of Mr. Dungan’s

employment he was never advised of P.L.

92-297, and his personnel file is devoid of any

evidence of same.

5) Executive Orders 11785 and 12107 make

an individual who participates in a strike

against the United States Government a

National Security Risk, and could be hired by

the government only if it was a matter of

National Security.

6) Ina Memorandum dated 8/13/93 Presi-

dent Clinton repealed the bar against fired

PATCO controllers and directed the Department

of Transportation to re-hire these individuals

without preference.

7) That the fired PATCO controllers were

hired back with preference including waiver of

the mandatory age 56 retirement rule, benefits,

pensions, and seniority.

8) That the fired PATCO controllers that

were hired at the same time as Mr. Dungan can

now work past age 56, while Mr. Dungan was

forced to retire at age 56.

9) That the law mandates that no individ-

ual can be hired as an air traffic controller past

their 31st birthday.

10) That PATCO employees are being

hired by the F.A.A. at any age.

11) That no United States Citizen includ-

ing Mr. Dungan, could apply for an air traffic

control position over the age of 31, unless they

illegally participated in the 1981 PATCO

Strike.

12) That the F.A.A. currently employs air

traffic controllers over the age of 56.

13) That the record reflects that no pre-

trial procedures were implemented in this mat-

ter.

14) That the record reflects that no Discov-

ery or Class Certification was authorized in this

matter, despite the request to do so by Mr. Dun-

gan.

15) That 5 U.S.C. Section 8335 mandates

that only the Secretary of Transportation be

allowed to waive F.A.A. air traffic controllers

beyond age 56.

16) That by F.A.A. Memorandum dated

10/5/95, the F.A.A. refused to allow all waivers

to be elevated to the Secretary for the pretext of

making room for the return of the PATCO Con-

trollers.

17) That in 1998 a Position Paper was pre-

pared by the FA.A. indicating that Mr. Dun-

gan’s Due Process Rights were violated.

18) That by letter dated March 2, 1999, the

United States Equal Employment Opportunity

Commission sent a letter to the United States

Department of Transportation requesting a

response to Mr. Dungan’s Notice of Intent to

Sue within 30 days, which response the Depart-

ment of Transportation has failed and/or

refused to forward.

19) That under the current policy there is

no maximum age for the government to bring

back a fired PATCO controller, (i.e., age 60), and

there is no maximum retirement age for the

returning PATCO controller except the 20 years

of service limitation.

20) That Mr. Dungan is clearly more quali-

fied for the job than the returning PATCO con-

trollers who have not controlled air traffic since

1981.

Finally, Mr. Dungan alledged to the District Court

and in his Brief to the Third Circuit Court of Appeals,

that at all times in this matter his discharge by the gov-

ernment was a mere pretext to allow room for the return

of the PATCO employees per the promise by President

Clinton to the AFL/CIO, which fact is a major fact at

issue in this matter. This issue coupled with the fact that

the Federal Aviation Administration is in possession of

documents which support this allegation of reprisal as

well as Due Process violations, support the statement that

the District Court respectfully erred in granting summary

judgement based on constitutionally impermissible basis

of reprisal.

Mr. Dungan’s knowledge of the adverse information

in the possession of the government comes from him

being advised by his Facility Manager Donald Hughes,!

and from the Eastern Region Personnel Department, that

a position paper was written regarding this matter in

1 Who was wrongly reprimanded on October 27, 1999 by

David Seaward, Branch Manager AEA-540, for attempting to

enforce plaintiff’s FOIA request regarding plaintiff’s position

paper.

August of 1998 by Robert Whitworth, Personnel Opera-

tion Specialist,2 determining that his due process rights,

and those similarly situated, were in fact violated. There-

after this position paper was approved by Jeffrey D.

Clarke, Resource Management Branch Manager,* and

thereafter forwarded to Kitty Durham at F.A.A. Head-

quarters.4 On August 27, 1999 Plaintiff requested by way

of the Freedom of Information Act (FOIA), the aforemen-

tioned position paper, which was not forwarded to plain-

tiff in violation of the Freedom of Information Act.°

Plaintiff’s favorable F.A.A. position paper/memorandum

is similar to numerous other position papers including

other affected ATCs facing the prospect of mandatory

separation Nationwide.

2. Whether the United States Third Circuit Court of

Appeals respectfully erred in concluding that the

Government did not violate Mr. Dungan’s United

States Constitution Equal Protection rights.

In 1981, when President Reagan fired all the air traf-

fic controllers who violated their sworn oath to the

United. States not to strike, these controllers were subject

to the age 56 mandatory retirement age. However, gov-

ernment retirement plans underwent a dramatic change

during the PATCO’s 12 year absence. The returning

2 AEA-540.

3 AEA-540.

4 ATX-200.

5 Such violation may be the subject of a future action

against the Federal Aviation Administration for its willful

disregard of the provisions of the Act itself.

PATCO controllers were given a choice of retirement

plans when they were rejoining the federal government.

They were given the option of returning under CSRS or

the subsequently enacted FERS. Regardless of their

choice, they were allowed to return with the same

seniority and pay grade they had prior to their termina-

tion. According to an order issued by F.A.A. Administra-

tor, David R. Hinson, on December 23, 1993, “Eligible

former controllers may have their pay set on the basis of

their highest previous rate under certain conditions. The

rate of pay in effect immediately prior to the last rate held

generally will be used as the employee’s highest rate.”

Order 3300.30 Employment Of Former Air Traffic Control

Specialist, cancelled on February 1, 1999. Therefore, any

returning fired PATCO controller was given preferential

treatment in that they returned to service with their origi-

nal pay grade suffering no penalty for having been fired

in 1981.

While the newly returned PATCO workers are

allowed to retain their seniority and pay grade, they are

not required to keep the mandatory retirement age they

were subject to when they were fired. Instead, they are

allowed to return to the F.A.A. employment in the same

position they were in just prior to their termination, but

are not subject to the harsh requirement of a mandatory

retirement at age 56, and are also insulated from the

maximum hire age of 31. Instead, they are now allowed to

continue to work until age 56 or 20 years service which-

ever comes later. If a rehire came back at age 55 years old

with one year of service, he or she could control air traffic

until age 74. This is without regard to the public safety

and public policy concerns of having 74 year old individ-

uals controlling air traffic. Given that the PATCO workers

are restored in all aspects to their pre-strike positions,

except the mandatory retirement requirements, Mr. Dun-

gan’s right to equal protection has been violated.

The defendants have argued that the government is

not discriminating based on age, rather the defendants

allege that the discriminatory effect arises out of differing

types of pension plans and benefits. Assuming, arguendo,

that this allegation is true, the result is a facially neutral

stature that is administered in a discriminating way.

While a statute may be facially neutral and not adopted

for discriminatory purposes when executed, the future

_ maintenance of the statute for discriminatory purposes

which have a disparate impact will violate the Equal

Protection Clause. See generally, Rogers v. Lodge, 458 U.S.

613 (1982), holding that an at-large election in a white

majority voting population violated the Equal Protection

Clause given the maintenance of the facially neutral stat-

ute in a discriminatory fashion. Clearly, the F.A.A.’s

application of the FERS statute with regard to the re-hired

PATCO workers is a prime illustration of a facially neu-

tral statute being used in a discriminatory way and with

disparate impact. As noted above, the F.A.A. has selec-

tively allowed certain air traffic controllers who were

subject to CSRS prior to their termination, to return to

service with all of their previous benefits. There is also a

group of air traffic controllers that were pre-Public Law

92-297, who are not subject to the mandatory age 56

retirement and in fact are currently working well past age

56.

Equal Protection Age

Even if the statute is found to have been applied in a

non-discriminatory fashion, the defendants have discrim-

inated against Mr. Dungan based on his age, thereby,

violating his Equal Protection rights. The Equal Protec-

tion component of the Fifth Amendment prevents the

Federal Government from making classifications of indi-

viduals that are discriminatory in nature. The United

States Supreme Court has held that age is not a suspect

class. Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307 (1976), Gregory v. Ashcroft, 501 U.S. 452 (1991). Since

age is not a suspect class, the “[government’s] classifica-

tion must rationally further the purpose identified by the

[government].” Murgia, 427 U.S. at 314.

Mr. Dungan was forced to retire at age 56 due to the

F.A.A.’s unwarranted contention that once an ATC

reaches this age he is no longer able to handle the diffi-

culties and stress associated with the job (See Senate

Report and defendants’ response). It is clear from the

legislative history surrounding the enactment of the age

56 rule that Congress sought to protect the public and air

safety by retiring ATCs at an early age. Despite the fact

that, in 1972 when the requirement was put into place,

Congress based its findings on a report now 30 years old.

The current state of FA.A. employment renders these

findings useless. The government simply cannot justify

forcing one group of ATCs to retire at the age of 56

because they are considered to be a danger and threat to

public safety, yet allow ATCs of an older age to continue

in their employment, Western Air Lines v. Criswell, 472

U.S. 400 (1985).° The mandatory separation age of 56 is no

longer rationally related to the legitimate governmental

purpose. No such difference underlies the job classifica-

tion between ATC’s. For the government to suggest that

requiring certain ATC’s to retire much earlier than other

ATC’s who are performing the exact same job, has some

rational relationship to preserving public safety, is ludi-

crous.

Finally, related to Equal Protection we look at the

fired PATCO controllers themselves in relationship to Mr.

Dungan and those similarly situated and to all other

United States citizens over age 31. As a result of partici-

pating in the illegal PATCO strike of 1981, and thereafter

returning illegally and contrary to 5 U.S.C. Section 7311, 5

U.S.C. Section 3331, and the criminal sanctions of 18

U.S.C. Section 1918, it is clear that the PATCO employees

will enjoy the benefit of working past age 56,7 with full

retirement benefits, not to mention the benefits they

gained in other employment from 1981 until the date of

their rehire, and are further given preferential hiring

treatment over all other United States citizens who are

over 31 and want to be an air traffic controller. The

Department of Transportation, Federal Aviation Adminis-

tration has seen fit to overlook the sworn oath taken by

all air traffic controllers not to strike against the United

States Government, a sworn oath Mr. Dungan faithfully

upheld because no individual has been allowed to go past a

certain age.

? Even until age 74, if they are age 55 when they are rehired,

and only had one year of service at the time of the strike.

ee ee ee

upheld, and in overlooking this sworn oath has rehired

the striking controllers placing them in a position of

superiority over Mr. Dungan as far as benefits and retire-

ment age, et al., and excluded all other citizens over 31

years of age from employment as air traffic controllers

unless they illegally participated in the 1981 PATCO

strike. No matter how qualified a United States citizen is

for the position of air traffic controller, they cannot apply,

nor can Mr. Dungan re-apply, over the age of 31 for the

position, unless he participated in the illegal PATCO

strike of 1981. This is clear prima facia discrimination.

3. Whether the United States Third Circuit Court of

Appeals respectfully erred in sanctioning the Dis-

trict Court’s departure from the accepted and usual

course of judicial proceedings, by denying Mr. Dun-

gan and the potential class action members in this

matter, all Pre-Trial Discovery, and all mandated

Pre-Trial Procedures before the entry of a summary

judgement.

Mr. Dungan’s third argument for review by this Hon-

orable Court regards the fact that the District Court

respectfully erred in not granting any hearings or argu-

ments in this matter and, by not complying with any of

the mandatory Pre-trial Procedures set forth in Federal

District Court for the Eastern District of Pennsylvania

Local Rule 16.1.

The introductory comments to Local Rule 16.1 state

that in the absence of an order to the contrary, the pro-

cedures outlined herein will be followed. A review of the

record in this matter will reveal that Mr. Dungan was

denied:

a a eT NE

1) A scheduling Conference;

2) Discovery;

3) Pre-Trial Memorandums, Interim Confer-

ences;

4) The Ability to Amend the Pleadings as may

have been necessary.

Further, Mr. Dungan, as a member of a class of Fed-

eral Employees similarly situated, was denied the oppor-

tunity under Rule 23.1 to move to maintain this action as

a “Class Action” pursuant to F.R.C.P. 23, which denial

precluded Mr. Dungan and potential class members from

maintaining additional issues, claims and defenses that

may have been appropriate to their circumstances.

In Hickey v. Duffy, 827 F.2d 234 (7th Cir. 1987), the

Seventh Circuit held that the District Court MUST

address the issue of class certification as soon as practi-

cal, and cannot dismiss the action until doing so, which

consideration and hearing erroneously did not take place

by the District Court in this matter.

Appellant acknowledges that trial courts are vested

with a wide degree of discretion and latitude when it

comes to pre-trial procedures, but when it can be shown

that the trial court clearly abused its broad discretion,

then the trial court’s decision can be disturbed, Sadowski

v. Bombardier, 539 F.2d 615 (7th Cir. 1976). In the instant

case the trial court respectfully allowed no pre-trial pro-

cedures, discovery, conferences, and memoranduma

which prejudiced Mr. Dungan, and those similarly situ-

ated, and although it is fully understood by Mr. Dungan

that the trial court has broad discretion regarding

a a

pre-trial matters, Mr. Dungan asserts that by the trial

court granting no required pre-trial procedures the court

abused its discretion.

Finally, this Honorable Court has held in numerous

cases that Summary Judgement is available only when,

after adequate time for full discovery and upon motion,

the party seeking summary judgement has satisfied its

responsibility of informing the court of the basis for its

motion and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it

believes demonstrate the absence of genuine issue of

material fact, Atchison, T. & S. F.R. Co. v. Buell, 480 U.S.

557, 107 S. Ct. 1410 (1987). No dispute can be made in the

instant matter that no discovery took place in clear con-

tradiction of F.R.C.P. 56(c) and the holdings of this Hon-

orable Court. Ful! Discovery is necessary before a

summary judgement decision can be rendered by the

Court, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548

(1986). The Third Circuit Court of Appeals precedent in

the Dungan case which has been published, if allowed to

stand, will render F.R.C.P. 56(c) meaningless, and will

place in direct question the clear holdings of this Honor-

able Court which contravene the Court of Appeals’ deci-

sion.

Lee em

4. Whether the United States Third Circuit Court of

Appeals respectfully erred in concluding that the

Age Discrimination in Employment Act did not

apply to Mr. Dungan relating to his employment

with the Federal Aviation Administration based on

the Government's discrimination and disparate con-

duct.

The District Court matter was instituted to enjoin

employment termination, and/or for reinstatement of Mr.

Dungan, and damages, to redress the deprivation of

rights secured to Mr. Dungan by section 7(b), 29 U.S.C.

Section 626(b) of the Age Discrimination in Employment

Act of 1967, as amended, 29 U.S.C. Section 621 et seq.

(“ADEA”), which incorporates by reference Section 16(b),

29 U.S.C. Section 216(b), of the Fair Labor Standards Act

of 1938, as amended, 29 U.S.C. Section 201 et seq.

The Petitioner in this action is Dean Dungan, who

resides at 253 Oakfield Drive, Newark, Delaware. He was

born March 5, 1944, and is currently age 57, with his 56th

birthday on March 5, 2000. Mr. Dungan was employed at

the United States Federal Aviation Administration, Air

Traffic Division Eastern Region, Philadelphia Interna-

tional Airport Air Traffic Control Hub, as an Area Super-

visor (FS-2152-12), being hired by the F.A.A. on December

7, 1974. Mr. Dungan was separated from this employment

involuntarily on Friday June 30, 2000, when the United

States Third Circuit Court of Appeals denied his request

for a Stay of Judge Broderick’s Order Pending Appeal,

notwithstanding the fact that he had already worked

three months past age 56.

The Respondents in this Motion are Rodney E. Slater,

the former Secretary of the United States Department of

Transportation, 400 7th Street, SW, Nassif Building, Wash-

ington, D.C., and Jane Garvey, the Administrator of the

Federal Aviation Administration, 800 Independence Ave-

nue, SW, Washington, D.C., Appellees in the above cap-

tioned action.

This is a case of first impression in the United States

of America in both the Federal and State Courts. The

gravamen of Mr. Dungan’s allegations are that, notwith-

standing Mr. Dungan’s loyalty and conscientious decision

to refuse to strike in 1981, he is now being penalized as a

result of his age, et al., and was forced to retire at age 56

at 50% of his pension, pursuant to the mandate of 5

U.S.C. Section 8335 (P.L. 92-297), notwithstanding the fact

that the rehired PATCO Air Traffic Controllers can work

in operational capacities past age 56 pursuant to 5 U.S.C.

Section 8425.

In May of 1972, Congress enacted Pub. L. 92-297

(codified at 5 U.S.C.A. Section 8335). The Legislative his-

tory of Public Law 92-297 (H.R. 8083), reveals clearly that

the expressed purpose of the law was to “improve the

conditions of employment for individuals employed as

air traffic controllers in the Department of Transportation

by offering preferential retirement benefits” (P.L. 92-297,

Legislative History, pg. 2287). The expressed purpose of

the Public Law was to offer preferential, not detrimental

benefits and treatment, which detrimental benefits and

treatment are currently being forced upon Mr. Dungan,

and those similarly situated, by defendants.

aaa

Further, the Legislative history of Public Law 92-297

(H.R. 8083), reveals that it was to be applied to controllers

on a voluntary basis giving them a vested right after 20

years to choose whether to retire or continue their air

traffic career. Further, air traffic controllers were being

added to the preferential treatment of 5 U.S.C. 8335 over

the normal Federal Retirement System because these

employees “occupy positions requiring precise skills

upon which aviation safety depends”. ~

Thereafter, in 1974 to avert a potential Air Traffic

Controllers’ Strike, and in the interests of National Secu-

rity, then-President Nixon signed Executive Order

Numbers 11785 and 121079 which made it a crime to

strike against the Government by United States Govern-

ment employees, further stating in the Executive Orders

that “individuals that participated in strikes against the

United States Government were a National Security

threat”. This Executive Order was incorporated by Con-

gress into 5 U.S.C. Section 7311, entitled Loyalty and

Striking, which law is still in place today.'°, ™

8 Although controllers’ degradation of ability can no longer

be a valid factor for requiring age 56 retirement, in light of the

fact that, numerous controllers over age 56 will continue

controlling past age 56 until potentially age 74.

9 Asan addendum to Executive Order Number 10450 dated

April 27, 1953 entitled Security Requirements for Government

Employees.

10 Further, it was this law that was used by President

Reagan to fire the PATCO Air Traffic controllers in August of

1981.

11 See also 5 U.S.C. Section 3331 and 18 U.S.C. Section 1918.

In direct contravention of Section 7 of President

Nixon’s Executive Orders’ numbers 11785 and 12107,

incorporated in 5 U.S.C. Section 7311 which states that

“Any person whose employment is suspended or termi-

nated under the authority granted to heads of depart-

ment and agencies by or in accordance with the said Act

of August 26, 1950, or pursuant to the said Executive

Order No. 9835 or any other security or loyalty program

relating to officers or employees of the Government, shall

not be reinstated or restored to duty or re-employed in

the same department or agency and shall not be re-

employed in any other department or agency, unless the

head of the department or agency concerned finds that

such reinstatement, restoration, or re-employment is

clearly consistent with the interests of the National Secu-

rity, which record shall be made a part of the record of

such department or agency”. The individuals who partic-

ipated in the PATCO strike were allowed to return to the

F.A.A. as air traffic controllers in total disregard for

National Security. Finally, the Department of Transporta-

tion, Federal Aviation Administration discriminated

against Mr. Dungan by requiring him to retire at age 56

while rewarding the controllers involved in the PATCO

Air Traffic Control Strike of 1981 by rehiring them and

thereafter, allowing them to work in a same or similar

capacity as Dean Dungan past age 56.

On June 16, 1994, President Clinton made an attempt

to appropriate funds from the United States Congress to

aid in his quest to bring back the striking PATCO Air

Traffic Controllers. Entitled The Federal Aviation Admin-

istration Act, it was presented to the 103rd Congress,

which Congress by a vote of 29-65 rejected the Amend-

ment. The rationale for the rejection by the United States

Congress was “In sum, President Clinton was wrong to

lift the ban on the retirement of PATCO strikers, and we

should not compound that error now by giving them

preferential, expensive treatment mandated in the

Metzenbaum amendment”.!?

The clear language of the ADEA provided that “all

personnel actions affecting employees . . . who are at least

40 years of age . . . in executive agencies as defined in

section 105 of Title 5 . . . shall be made free from any

discrimination based on age”, 29 U.S.C. Section 633(a).

Based on the facts of the instant matter, Mr. Dungan is

clearly covered by the act. Finally, Mr. Dungan suggests

that this Court consider the absurdity of the govern-

ment’s position in believing that it is more appropriate to

replace seasoned ATCs who have continuously main-

tained their skill levels for more than twenty years, with

the former PATCO employees who have been separated

from government service for fourteen years at a mini-

mum. This logic defies comprehension in that the Defen-

dants cannot assert any legitimate governmental purpose

other than the promulgation of rules and regulations

which clearly discriminate against those ATCs reaching

mandatory retirement while rewarding those who vio-

lated their oath of allegiance to their country. The express

purpose of the provisions of ADEA § 633(a) was designed

to safeguard against manifest injustice perpetuated by the

F.A.A. against Mr. Dungan and his colleagues. Therefore,

since the ADEA prohibits discrimination on the basis of

12 103rd Congress, 2d Session, June 16, 1994, Vote No. 152.

age in Federal government employment, Mr. Dungan

contends that the F.A.A.’s denial of his waiver request

was clearly motivated by age, which serves as the thresh-

old requirement for establishing a legitimate cause of

action under the provisions of the ADEA.

The Third Circuit Court of Appeal in a recent series

of Summary Judgement ADEA cases has set forth the test

for establishing a prima facia case on behalf of Mr. Dun-

gan. Citing the United States Supreme Court’s McDonnell

Douglas'3 case, this Honorable Court held recently in

Showalter v. Univ. Of Pittsburgh Med. Ctr., 190 F.3d 231 (3rd

Cir. 1999) that in order for Mr. Dungan to prove a prima

facia case for unlawful discharge based on Age Discrimi-

nation it must be proved that (i) Mr. Dungan was a

member of a protected class, i.e., was 40 years of age or

older, (ii) that Mr. Dungan was discharged, (iii) that Mr.

Dungan was qualified for the job, and (iv) that Mr. Dun-

gan was replaced by unprotected workers. It is clear in

the instant case that Mr. Dungan has made a prima facia

case for Age Discrimination and, as such, the trial court

erred in dismissing same. Mr. Dungan is over 40 years

old, was involuntarily discharged from his employment,

is more than qualified for his job, and the defendants

have replaced him with unprotected striking PATCO

employees, some of whom are younger than him. Further,

to date, Mr. Dungan has at all times maintained that his

discharge by the government was a mere pretext to allow

room for the return of the PATCO employees per the

13 411 U.S. 792, 802 (1973).

promise by President Clinton to the AFL/CIO, which fact

is a major factor at issue in this matter.

Further, this Honorable Court has recognized the

disparate treatment theory as available under the ADEA.

Hazen Paper Company v. Biggins, 507 U.S. 604, 609, 113

S. Ct. 1701, 1705 (1993). Under the disparate treatment

theory, Mr. Dungan must prove that the employer treats

some individuals less favorably than others because of a

protected trait or characteristic, under the ADEA age. Id.

Mr. Dungan must prove a discriminatory motive on the

part of the employer, which can be “inferred from the

mere fact of differences in treatment|.]” Id. Determining

whether “discriminatory purpose was a motivating factor

demands a sensitive inquiry into such circumstantial and

direct evidence of intent as may be available.” Village of

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.

252, 266, 97 S. Ct. 555, 50 L.Ed.2d 450 (1977).

Mr. Dungan may satisfy the burden for proving “a

prima facia case in the absence of direct evidence of

discrimination by presenting sufficient evidence to allow

a reasonable fact finder to conclude (given the totality of

the circumstances) that the defendant treated Mr. Dungan

less favorably than others because of his age”. Iadimarco v.

Runyon, 1999 WL 692709, 11 (3d Cir. 1999). The disparate

impact theory involves facially neutral practices by an

employer relative to the treatment of different groups

that impact one group more harshly than another and

cannot be justified by business necessity. Id. Under this

theory proof of discriminatory motive is unnecessary. Id.

The Supreme Court has set forth the requisite elements

required for establishing a claim under the disparate

impact theory in McDonnell Douglas Corporation v. Green

(411 U.S. 792, 93 S. Ct. 1817). McDonnell Douglas sets up a

burden-shifting analysis that requires Mr. Dungan to

establish a prima facia case. This analysis “raises an infer-

ence of discrimination only because we presume these

acts, if otherwise unexplained, in the context of the prongs

of the McDonnell Douglas prima facia case, are more likely

than not based on the consideration of impermissible fac-

tors.” ladimarco v. Runyon, 1999 WL 692709, 7 (3d Cir.

1999). In order to establish a prima facia case of age

discrimination, “Mr. Dungan must show: 1) that he

engaged in a protected activity, 2) that the employer took

adverse action against him, and 3) that a causal link exists

between the protected activity and the employer’s adverse

action.” Holmes v. Federal Aviation Administration, United

States Department of Transportation, 1999 WL 771594, 5

(D.N.J. 1999). Mr. Dungan is allowed to “proceed without

direct proof of illegal discrimination where circumstances

are such that common sense and social context suggest

that discrimination has occurred.” Id. at 4.

Under the Holmes analysis Mr. Dungan has estab-

lished a prima facia case ot age discrimination. First, Mr.

Dungan is within the protected class covered by the

ADEA (i.e., forty years of age or older). Second, the

F.A.A. took adverse action against him by arbitrarily and

capriciously denying his waiver request while granting

waivers to rehired PATCO workers who do not meet the

exceptional experience and skills requirements speci-

fically enunciated within the applicable statute. And

finally, a causal link exists because, but for the F.A.A.’s

discriminatory actions and Mr. Dungan’s age, Mr. Dun-

gan clearly satisfied the statutory requirements by

providing proof of exceptional skills and experience;

whereas, rehired PATCO workers were not required to do

so, and in any event, clearly could not have met the

requisite requirements. At this point the burden shifts to

the employer “to articulate some legitimate, non-

discriminatory reason” for its actions. McDonnell Douglas,

411 U.S. at 802. The “defendant's explanation of its legiti-

mate reasons must be clear and reasonably specific.”

Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 258, 101 S. Ct. 1089, 1096 (1981).

In the final analysis of this issue, Mr. Dungan poses

the following illustration: Two air traffic controllers are

available to control the Nation’s air traffic. One is a 70

year old National Security Risk for illegally striking

against the government in 1981 and has not controlled air

traffic for 19 years, and was hired under 5 U.S.C. Section

8335(a). The other is 56 years old, refused to strike in 1981 |

in the Nation’s interest, is an accomplished controller, Air

Line Transport Pilot, and accomplished Air Traffic Con-

trol Supervisor with 26 years active experience in air

traffic. Needless to say, our 56 year old Mr. Dungan not

only was told he must leave the F.A.A. but because he did

not participate in the 1981 Strike, is not waived to re- |

apply for the same position; whereas, our 60-70 year old

controller not only can re-apply but is automatically re-

hired absent medical deficiencies. This not only amounts

to discrimination per se, but by placing our nation in

serious peril by bringing back these “former controllers”

for pure political reasons, is a clear governmental abuse

of power.

| |

ADEA - CONGRESSIONAL/EXECUTIVE

BRANCH INTENT

A thorough review of the congressional intent of

Congress relating to the ADEA reveals clearly that at no

time did Congress intend to authorize age discrimination,

and/or sanction any type of discrimination in the Federal

Government. This conclusion of fact and law comes

directly from both the legislative branch and the execu-

tive branch in this matter, and which legal mandates were

overlooked by the Court of Appeals March 19, 2001 deci-

sion. In fact both Congress and President Clinton made it

clear that discrimination of the fashion Mr. Dungan

incurred would not be tolerated. In President Clinton’s

August 12, 1993 memorandum, the President in no uncer-

tain terms states “that PATCO members should be eligi-

ble to apply, without preference, when there are openings

with the F.A.A.” The facts of this case support the finding

that the F.A.A. brought the PATCO members back with

preferences. These preferences included et al., that the

PATCO strikers could reapply at any age but Mr. Dungan

is not eligible to reapply as a result of his age. Therefore,

a 56 year old PATCO striker could reapply to the F.A.A.

given preference over Mr. Dungan at 56, simply because

he did not participate in the 1981 Strike. This Preference

is exactly what President Clinton did not authorize.

As to Congress and congressional intent, this Honor-

able Court respectfully overlooked the fact that on June

16, 1994, President Clinton made an attempt to appropri-

ate funds from the United States Congress to aid in his

quest to bring back the striking PATCO Air Traffic Con-

trollers. Entitled The Federal Aviation Administration

Act, it was presented to the 103rd Congress, which Con-

gress by a vote of 29-65 rejected the Amendment. The

rationale for the rejection by the United States Congress

was “In sum, President Clinton was wrong to lift the ban

on the retirement of PATCO strikers, and we should not

compound that error now by giving them preferential,

expensive treatment mandated in the Metzenbaum

amendment” .'*

The conclusion to be drawn from the application of

both the Congressional intent and the Presidential direc-

tive in this matter is that Mr. Dungan was discriminated

against as a result of his age, and was not provided equal

protection of the laws of the United States when the

PATCO strikers were given preferential treatment in their

rehire, to the detriment of Mr. Dungan.

IMPERMISSIBLE PREFERENTIAL TREATMENT

The Court of Appeals respectfully erred in conclud-

ing factually that the PATCO members are not being

given impermissible preferential treatment (Third Circuit

Opinion, 3/19/01, pg. 9) as supported by the following:

a) PATCO members are being given impermis-

sible preferential treatment in that they are

being given previous years of service

toward seniority when:

i) Bidding,

ii) Establishing eligibility for vacation

days,

14 103rd Congress, 2d Session, June 16, 1994, Vote No. 152.

iii) In counting total years of service for

_ retirement.

b) PATCO members are being given impermis-

sible preferential treatment in that they can

apply and be rehired as an Air Traffic Con-

troller over the age of 36, unlike any other

United States Citizen.

CONCLUSION

For the foregoing reasons set forth in this Petition, it

is respectfully requested that this Honorable Court grant

Mr. Dungan’s Petition for Writ of Certiorari.

Respectfully Submitted,

JosepH MicHaeL LAMONACA

Attorney for Dean Dungan

App. 1

APPENDIX “A”

UNREPORTED/NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1128

~ DEAN DUNGAN,

Appellant

RODNEY E. SLATER, SECRETARY,

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION;

JANE GARVEY, ADMINISTRATOR,

UNITED STATES OF AMERICA

FEDERAL AVIATION ADMINISTRATION

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

D.C. Civil No. 99-cv-2376

District Judge: The Honorable Raymond J. Broderick

Submitted Under Third Circuit LAR 34.1(a)

March 13, 2001

Before: MANSMANN, BARRY, and COWEN

Circuit Judges

(Opinion Filed: March 19, 2001)

ee ee me

App. 2

MEMORANDUM OPINION OF THE COURT

BARRY, Circuit Judge:

Dean Dungan appeals from the District Court’s grant

of summary judgment to all defendants in an action in

which Dungan alleges that the defendants discriminated

against him on the basis of age and violated his constitu-

tional rights to due process and equal protection. Because

we agree with the District Court that Dungan’s complaint

did not state a cause of action under either the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,

or the Fifth Amendment, we shall affirm the judgment of

the District Court.

BACKGROUND

Dungan began working as an air traffic controller

(ATC) in 1974. ATCs at major airports in the U.S. are

employees of the Federal Aviation Administration (FAA),

an agency of the Department of Transportation (DOT).

Like all ATCs who were hired between 1972 and 1987,

Dungan was a member of the Civil Service Retirement

System (CSRS). 5 U.S.C. § 8301 et seq. The CSRS required

that an ATC “shall be separated from service on the last

day of the month in which he [or she] becomes 56 years

of age.” 5 U.S.C. § 8335(a). The Secretary of ‘Transporta-

tion, however, was given the discretion to permit an ATC

“having exceptional skills and experience” to work until

age sixty-one. Id. The CSRS compensated ATCs for this

early mandatory retirement by providing them with more

App. 3

generous benefits than were received by other federal

employees.!

In 1981, thousands of ATCs who were members of

the Professional Air Traffic Controllers Organization

(PATCO) went on strike. Dungan did not join this strike.

The striking PATCO members were fired by President

Reagan, who barred them from working in any positions

with the FAA. In August 1993, President Clinton issued

an order permitting the former strikers to be rehired as

ATCs. Some undetermined number of former PATCO

members have been rehired.

In 1987, Congress adopted the Federal Employee

Retirement System (FERS), 5 U.S.C. § 8401 et seg., which

replaced the CSRS for many employees, including ATCs,

hired after that point. While the FERS changed the retire-

ment scheme for federal employees in many ways, the

change most relevant to this case is that it modified the

mandatory retirement age for ATCs. Under the FERS, an

ATC is not required to retire until reaching twenty years

of service or age fifty-six, whichever came later. 5 U.S.C.

§ 8425(a). Thus, an ATC who entered service after age

thirty-six would be permitted to work past age fifty-six.

! For example, an ATC with twenty years of service was

permitted to retire with a pension at age fifty, 5 U.S.C. § 8336(e),

while most federal employees would have to achieve age sixty

before being given a pension after twenty years of service. 5

U.S.C. § 8336(b). Similarly, ATCs were guaranteed a minimum

pension payment of 50% of their average salary. 5 U.S.C.

§ 8339(e). Thus, an ATC retiring after twenty years of service

would receive a 50% pension, much more generous than the

36.25% that would be received by a federal employee governed

by the general rules. 5 U.S.C. § 8339(a).

ee ee

App. 4

The FERS continued to give the Secretary of Transporta-

tion the discretion to allow an ATC to work until reaching

age sixty-one. Id. The retirement of ATCs who were hired

before 1987 continues to be governed by the CSRS,

although they were given opportunities to change their

enrollment from the CSRS to the FERS. Similarly, PATCO

members who had been covered by the CSRS and were

rehired after President Clinton’s order in 1993 were per-

mitted to choose between the two retirement programs. It

is undisputed that some of the rehired PATCO ATCs are

being permitted to work past age fifty-six.

On June 15, 1998, well before his fifty-sixth birthday,

Dungan wrote to his division manager seeking a waiver

of the mandatory retirement age so that he could work

“until age sixty-one. Pursuant to the statutory grant of

authority contained in 5 U.S.C. § 8335(a), the Secretary of

Transportation had delegated authority to grant such

waivers to the Administrator of the FAA. 49 C.FR.

§ 1.45(a). The Administrator has adopted an internal pro-

cedure under which any waiver request must be

reviewed by several intermediate officials before being

considered by the Administrator and the Secretary. If any

one of those intermediate officials does not approve the

request, it is automatically denied. In October .1995, the

FAA announced that for the foreseeable future, requests

for waivers would not be forwarded to the Administrator,

effectively cutting off any possibility of seeking an exten-

sion past the mandatory retirement age. Consistent with

this policy, Dungan’s waiver request was denied by the

regional manager.

On May 7, 1999, Dungan filed a four-count complaint

in the District Court. Count I alleged that the Secretary

App. 5

violated the Age Discrimination in Employment Act

(ADEA) by.requiring Dungan to retire at age fifty-six

while allowing other ATCs to work past age fifty-six. In

Count II, Dungan contended that the Administrator vio-

lated the ADEA by refusing to submit Dungan’s waiver

request to the Secretary. In Count III, Dungan claimed

that the Secretary violated his Fifth Amendment rights to

due process and equal protection by refusing to consider

his waiver request and by forcing him to retire at age

fifty-six while allowing other ATCs to work past that age.

Finally, Count IV alleged that the Administrator violated

Dungan’s due process rights by refusing to forward his

waiver request to the Secretary. Although this complaint

was styled as a class-action, the District Court held all

class-related decisions in abeyance until motions to dis-

miss or for summary judgment could be considered.

On February 24, 2000, the District Court granted

defendants’ motion for summary judgment on all counts.

In a twenty-three page opinion, the District Court deter-

mined that the ADEA did not apply to ATCs, that Dun-

gan had no due process right to have his waiver request

considered by the Secretary, and that the different retire-

ment ages for different ATCs were rationally related to a

legitimate government purpose and did not violate Dun-

gan’s right to equal protection. The District Court and

this Court both subsequently denied Dungan’s requests

for injunctive relief to prevent his termination while his

appeal was pending.

In March 2000, Dungan reached age fifty-six. Under

the provisions of the CSRS, he was required to retire at

the end of that month. Apparently, however, he did not

App. 6

timely receive the required sixty-day notice of termina-

tion, and he was permitted to work until June 30, 2000.7

DISCUSSION

On appeal, Dungan disputes the District Court's res-

olution of each of his claims. He also asserts that the

District Court erred by not providing him with the pre-

trial procedures mandated by the local rules of the East-

ern District of Pennsylvania, and by not deciding the

issue of class certification.

A. ADEA Claims

In evaluating Dungan’s ADEA claims, the District

Court noted that while the federal government had been

made subject to the act in 1978, see 29 U.S.C. § 633a(a),

Congress still reserved the power to statutorily impose

mandatory retirement ages that would otherwise conflict

with the ADEA. Johnson v. Mayor and City Council of

Baltimore, 472 U.S. 353, 357 (1985). Thus, the District

Court properly held that the provision of the CSRS

requiring ATCs to retire at age fifty-six did not violate the

ADEA.

Dungan argues, however, that he is not disputing the

validity of the mandatory retirement age, but is instead

challenging the fact that other ATCs, and in particular the

rehired PATCO members, are being allowed to work past

2 Although there is no evidence in the record before this

Court, we assume that Dungan received the required notice on

or before May 2, 2000.

App. 7

age fifty-six. This argument overlooks the fact that the

mandatory retirement age of all ATCs is dictated by

legislation properly enacted by Congress, regardless of

whether the ATCs in question are members of the CSRS

or the FERS. It would be paradoxical for this Court to

hold that the FAA does not violate the ADEA when it

requires an ATC to retire at age fifty-six under the rules

of the CSRS, but does violate the ADEA when it permits

an ATC to work past age fifty-six consistent with the

dictates of the FERS.

Because Congress explicitly authorized both manda-

tory retirement programs complained of by Dungan, they

are outside the scope of the ADEA. On that basis, the

District Court properly granted summary judgment to the

defendants on Counts I and II of Dungan’s complaint.

Because this determination is dispositive of the issue, we

shall not discuss the alternative grounds for summary

judgment offered by the District Court.

B. Equal Protection

Dungan also contends that the Secretary has violated

his Fifth Amendment right to equal protection by forcing

him to retire at age fifty-six while allowing other ATCs to

work past that age. In particular, he claims that the

rehired PATCO members are being given unconstitutional

preferential treatment because they are allowed to work

past age fifty-six.2 Because the different treatment that

3 It is clear from the briefs and from the record that Dungan

feels a great deal of indignation over what he perceives as the

App. 8

| Congress mandated for different ATCs is rationally

related to a legitimate government purpose, it does not

violate the Fifth Amendment.

If federal government action creates distinctions

between classes of people, and that action does not

impermissibly interfere with fundamental constitutional

rights or burden a suspect class, that action does not

violate the Fifth Amendment so long as it is rationally

related to a legitimate government purpose. Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307, 312-13 (1976).

There is no allegation in this case that the differing treat-

ment of ATCs under the two retirement systems inter-

feres with any fundamental right. Further, the Supreme

Court has determined that classifications based on age do

not burden a suspect class. Murgia, 427 U.S. at 313-14. In

the present case, the two retirement systems are best seen

as creating a distinction based on the particulars of indi-

viduals’ employment, because the question of whether an

ATC will be permitted to work past age fifty-six is deter-

mined entirely by the retirement system in which he or

she is enrolled. Vance v. Bradley, 440 U.S. 93, 97 n.10 (1979)

(“Since the age factor is present in both groups, the

gravamen of appellees’ claim [is that the statute] discrim-

inates on the basis of job classification”).

preferential treatment being given to the former strikers. In

1981, Dungan chose to obey the law and refused to join the

PATCO strike. Now he has been forced to retire at age fifty-six

while some ATCs who, in his view, broke their faith with the

FAA are being allowed to work past that age. It is under-

standable that he feels anger and frustration, but the law can

provide no relief.

App. 9

The distinction created between two groups of ATCs

by the CSRS.and the FERS is clearly rationally related to a

legitimate _government_purpose. The adoption of the

FERS altered the method of calculating annuities for

retired ATCs, and had the effect of reducing the annuity

to which an average ATC would be entitled.* In that

context, it is perfectly logical that Congress would choose

to grant every ATC an opportunity to earn at least twenty

years of service credit, even if that meant letting some

ATCs work past age fifty-six. It is also logical that Con-

gress would choose not to force ATCs who were enrolled

in the CSRS to transfer to the FERS, which for some ATCs

would have the effect of retroactively reducing benefits.

Instead, it permitted ATCs covered by the CSRS to select

the plan in which to enroll. Regardless of Congress's

precise motives, the Supreme Court has noted that fed-

eral retirement systems “are packages of benefits,

requirements, and restrictions serving many different

purposes. When Congress decided to include groups of

employees within one system or the other, it made its

judgments in light of those amalgamations of factors.”

Vance, 440 U.S. at 109.

Dungan’s claim that the rehired PATCO members are

being given some kind of impermissible preference also

fails. It is true that when the PATCO members were fired,

4 Thus, as noted earlier, under the provisions of the CSRS,

an ATC eligible for retirement after twenty years would receive

a guaranteed 50% pension, 5 U.S.C. § 8339(e), while under the

FERS the same ATC would receive only a 34% pension. 5 U.S.C.

§ 8415(d). Of course, it is possible that Social Security and

voluntary Thrift Savings Plan benefits would compensate for

this difference.

App. 10

they were subject to the mandatory retirement age of the

CSRS, as was Dungan. When they were rehired, however,

they were permitted to select between the two plans.

Dungan had been given this same choice in 1987.°

Because some of these rehired ATCs elected to be

enrolled in the FERS and because they had fewer than

twenty years of service at age fifty-six, they are being

allowed to work to an older age than they would have

had they never gone on strike. This difference is caused

not by their status as strikers, however, but because they

had a break in service. An ATC who had a similar break

in service for other reasons would have received the same

benefit.

The Administrator and the Secretary are required to

impose different mandatory retirement schemes on differ-

ent ATCs due to a legislative mandate. Because that man-

date is rationally related to a legitimate government

purpose, it does not violate Dungan’s right to equal pro-

tection. © :

C. Due Process

Dungan’s last substantive claim is that the Adminis-

trator and the Secretary denied him his Fifth Amendment

right to due process by denying his request for a waiver

from the mandatory requirement provisions of the CSRS.

This argument fails because Dungan had no property

5 As the District Court noted, even if Dungan had elected to

enroll in the FERS, he would have been forced to retire at age

fifty-six because he already had twenty years of service.

App. 11

interest in, or legitimate expectation of, a waiver of the

mandatory retirement rules.

Before any process is due under the Fifth Amend-

ment, a claimant must demonstrate that there has been a

deprivation of an interest in life, liberty, or property.

Mathews v. Elderidge, 424 U.S. 319, 332 (1976). There is

generally not a property interest in continued public

employment unless a claimant can demonstrate a “legiti-

_ mate claim of entitlement to it.” Board of Regents v. Roth

408 U.S. 564, 577 (1972).

Dungan cannot maintain that he had any legitimate

expectation to continued employment as an ATC past age

fifty-six, or even any expectation that his waiver request

would be submitted to the Secretary. The governing stat-

ute states that the Secretary “may exempt” an ATC from

mandatory retirement. 5 U.S.C. § 8335(a). This clearly

indicates that the decision as to whether to grant a waiver

is discretionary. Further, the Secretary is empowered to

make this decision “under such regulations as he [or she]

may prescribe.” Id. The regulations that have been

adopted require that an application be approved at every

level before it is submitted to the Administrator and the

Secretary. Lack of approval at any level functions as a

denial of the application. The decision that no waiver

requests would be approved was clearly within the dis-

cretionary power of the Secretary. Dungan claims that the

refusal to consider his request was arbitrary and capri-

cious, but he overlooks the fact that the Secretary is not

required to consider any waiver request. In fact, the

evidence shows that rather than being arbitrary and

App. 12

capricious, the refusal to consider requests has been con-

sistently applied since the policy was announced in 1995

and that no waivers have been granted since that time.

Because Congress granted broad discretion to the

Secretary to make decisions about waivers, Dungan had

no property interest in receiving a waiver or even in

having his request considered by the Secretary. In the

absence of such a property interest, no process was due

under the Fifth Amendment and Dungan’s constitutional

rights were not violated.

D. Pre-Trial Procedures

Finally, Dungan claims that the District Court err ed

by refusing his request for certain pre-trial procedures

and by not making any class-related decisions. Because

we will affirm the grant of summary judgment on the

merits, we need not consider this argument.

CONCLUSION

For the foregoing reasons, the judgment of the Dis-

trict Court will be affirmed.

TO THE CLERK OF THE COURT:

Kindly file the foregoing Memorandum Opinion.

/s/ Maryanne Trump Barry

Circuit Judge

App. 13

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1128

DEAN DUNGAN,

Appellant

RODNEY E. SLATER, SECRETARY,

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION;

JANE GARVEY, ADMINISTRATOR,

UNITED STATES OF AMERICA

FEDERAL AVIATION ADMINISTRATION

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA

D.C. Civil No. 99-cv-2376

District Judge: The Honorable Raymond J. Broderick

Submitted Under Third Circuit LAR 34.1(a)

March 13, 2001

Before: MANSMANN, BARRY, and COWEN

Circuit Judges

JUDGMENT

This cause came to be heard on the record from the

United States District Court for the Eastern District of

App. 14

Pennsylvania and was submitted under Third Circuit

LAR 34.1(a) on March 13, 2001.

After consideration of all contentions raised by the

appellant, it is

ADJUDGED and ORDERED that the judgment of the

District Court be and is hereby affirmed.

Costs taxed against appellant.

ATTEST:

/s/ (Ilegible]

Acting Clerk

Dated: 19 March 2001

Costs Taxed in Favor of the Secretary of Transportation

and the Administrator of the Federal Aviation Adminis-

tration as follows:

Certified as a true copy and issued

in lieu of a formal mandate on

June 22, 2001.

Teste: [Illegible]

Acting Clerk, United States Court

of Appeals for the Third Circuit

App. 15

UNITED STATES COURT OF APPEALS

_ FOR THE THIRD CIRCUIT

March 30, 2001

No. 00-1128

DEAN DUNGAN, Appellant

RODNEY E. SLATER, et al.

(E.D. of PA. Civil No. 99-cv-02376 (RJB))

Present. MANSMANN, BARRY and COWEN, Circuit

Judges.

Motion by Appellee to publish the Court’s Memoran-

dum Opinion.

/s/ Anthony Infante

Anthony Infante 267-299-4916

Case Manager

Response due 4/11/01.

The Court’s Memorandum Opinion &

Judgment were filed on 3/19/01.

The Mandate is be Issued on 5/10/01.

ORDER

The foregoing motion is granted.

By the Court,

/s/ Maryanne Barry

Circuit Judge

Dated: 05 JUN 2001

App. 16

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEAN DUNGAN : CIVIL ACTION

‘ NO. 99-CV-2376

RODNEY E. SLATER, Secretary, :

United States Dept. of

Transportation, and JANE

GARVEY, Administrator,

United States Federal

Aviation Administration

ORDER

AND NOW, this 24th day of February, 2000; Defen-

dants having filed a motion for summary judgment;

Plaintiff having opposed; for the reasons stated in the

memorandum filed on this date:

IT IS ORDERED:

1. Defendants’ motion for summary judgment

(docket no. 8) is GRANTED as to all counts.

2. Judgment is entered in FAVOR of Defen-

dants and AGAINST Plaintiff on all counts of the com-

plaint.

3. The Clerk shall mark this case CLOSED.

/s/ Raymond J. Broderick

RAYMOND J. BRODERICK, J.

App. 17

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT -

No. 00-1128

DEAN DUNGAN,

Appellant

RODNEY E. SLATER, SECRETARY, UNITED STATES

OF AMERICA DEPARTMENT OF TRANSPORTATION;

JANE GARVEY, ADMINISTRATOR, UNITED STATES OF

AMERICA FEDERAL AVIATION ADMINISTRATION

Present: BECKER, Chief Judge, SLOVITER,

MANSMANN, SCIRICA, NYGAARD, ALITO, ROTH,

McKEE, RENDELL, BARRY, AMBRO, FUENTES,

and COWEN* Circuit Judges

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING EN BANC

The petition for rehearing en banc filed by Appellant

having been submitted to the judges who participated in

the decision of this Court, and to all the other available

circuit judges in active service, and a majority of the

circuit judges of the circuit in regular active service not

* Honorable Robert E. Cowen, United States Circuit Judge,

limited to panel vote only.

App. 18

aring by the court en banc, the

n banc is DENIED.

BY THE COURT:

having voted for rehe

petition for rehearing e

/s/ Maryanne Barry

Circuit Judge

DATED: 14 JUN 2001

——————e

App. 19

APPENDIX “C”

5 U.S.C. § 8335. Mandatory separation

(a) An air traffic controller shall be separated from the

service on the last day of the month in which he becomes

56 years of age. The Secretary, under such regulations as

he may prescribe, may exempt a controller having excep-

tional skills and experience as a controller from the auto-

matic separation provisions of this subsection until that

controller becomes 61 years of age. The Secretary shall

notify the controller in writing of the date of separation at

least 60 days before that date. Action to separate the

controller is not effective, without the consent of the

controller, until the last day of the month in which the 60-

day notice expires. ;

Public Law 92-297

“§ 3109. Air traffic controller

“For the purpose of this title, ‘air traffic controller’ or

‘controller’ means an employee of the Department of

Transportation who is actively engaged in the separation

and control of air traffic, or who is the immediate super-

visor of an employee actively engaged in the separation

and control of air traffic, in an air traffic control facility.

The secretary of Transportation may prescribe regulations

to determine the application of this section.”

App. 20

(b) The analysis of chapter 31 of title 5, United

States Code, is amended by adding the following new

item at the end thereof:

+ * +

AIR TRAFFIC CONTROLLERS

P.L. 92-297

AIR TRAFFIC CONTROLLERS - CAREER PROGRAM

House Report (Post Office and Civil Service Committee)

No. 92-516, Sept. 27, 1971 [To accompany H.R. 8083]

Senate Report (Post Office and

Civil Service Committee)

No. 92-774, May 1, 1972 [To accompany H.R. 8083]

Cong. Record Vol. 117 (1971)

Cong. Record Vol. 118 (1972)

DATES OF CONSIDERATION AND PASSAGE

- House October 4, 1971; May 9, 1972

Senate May 3, 1972

The Senate Report is set out.

SENATE REPORT NO. 92-774

Tur Committee on Post Office and Civil Service, to which

was referred the bill (H.R. 8083) to amend title 5, United

States Code, to provide a career program for, and greater

flexibility in management of, air traffic controllers, and

for other purposes, having considered the same, reports

App. 21

favorably thereon with amendments and recommends

that the bill as amended do pass.

PURPOSE

H.R. 8083 is designed to improve the conditions of

employment for individuals employed as air traffic con-

trollers in the Department of Transportation by offering

preferential retirement benefits, job training and

improved appeal procedures for controllers removed

from control work, and the establishment of maximum

recruitment and retention ages for controllers.

JUSTIFICATION

For several years, both the executive and legislative

branches have recognized that employees of the Federal

Government who are engaged in the separation and con-

trl of aircraft at airport towers and in regional radar

control centers occupy positions requiring precise skills

upon which aviation safety depends and taxing heavily

the physical and mental strength of the individuals

involved.

Efforts to resolve the problem have been frustrated.

During the 1960's, the Bureau of the Budget curtailed

funds for training new controllers at the FAA training

center in Oklahoma City, resulting in completely unac-

ceptable work levels for almost all controllers, and lead-

ing to the virtual collapse of the system in 1970. Many

controllers reported in sick or operated traffic at less than

their ordinary schedule, resulting in extending flight

arrival and departure times to a substantial extent.

App. 22

Although there are several groups of employees in

the Government whose employment is hazardous,

including law enforcement officers, Canal Zone pilots,

customs inspectors, Treasury agents, and others, air traf-

fic controllers are unique in that their work involves both

physical and mental strain for the controller, and the

safety of the public traveling by air. At large air terminals

and en route centers in the United States, the role and

importance of the controller is primary, a status to which

airline pilots are the first to testify. Over a period of time,

the physical and mental efforts of monitoring radar

screens to track all aircraft within the range of a regional

facility or tower or controlling tower traffic visually, or

both, simply becomes too much for the average individ-

ual to sustain. Like skilled athletes, most controllers lose

proficiency to some degree after age 40, and in the inter-

est of the public’s safety, should not be retained as con-

trollers in busy facilities beyond the time they can

perform satisfactorily. Under existing law, there is little

that can be done to alleviate this problem.

H.R. 8083 proposes to offer the controller and the

Department of Transportation two basic solutions to the

problems of recruiting and retaining the highest quality

of personnel for air traffic control, and insuring that a

controller, once he is past his most efficient years of

service, will have reasonable opportunities for employ-

ment in or out of the Government service if he leaves his

position as a controller.

First, H.R. 8083 permits the Secretary of Transporta-

tion to remove a controller who has at least 5 years’

service from his position if he is no longer able to handle

the level of work necessary for the job, and, if the

App. 23

employee desires, to offer him a period of training for

other employment, within or without the Government,

for a period of not more than 2 years at Government

expense. During his period of training, the controller will

be paid at the rate he was paid at the time of his removal

from control work. After training, he may be placed in

another Government agency position, or leave the Gov-

ernment and enter private industry.

This training opportunity will remove much of the

natural anxiety which controllers now feel when they are

asked to step aside from active control work. Their quali-

fications for employment in positions other than control

work are not generally high since they have performed 15

or 20 years of service exclusively engaged in the separa-

tion and control of aircraft. A journeyman controller with

15 years of service now earns between $20,000 and

$25,000 a year. To retire from that kind of economic status

to the hazards of seeking employment for which he may

have little or no qualification is an extremely difficult

proposition. But if the Government offers an opportunity

for a controller to train for other employment, and sus-

tain his old rate of pay during the period of training, the

adjustment will be much easier for the employee, and the

overall air traffic control program will be improved.

Secondly, the civil service retirement provisions of

title 5, United States Code, are amended to offer early

retirement benefits to controllers which are not applicable

to any other class of employees.

Under existing law, any employee may retire on a full

annuity at age 55 with 30 years’ service, at age 60 with 20

years’ service, or at age 62 with 5 years’ service. If an

App. 24

employee is involuntarily separated not for cause, he is

eligible for a reduced annuity at age 50 if he has 20 years’

service, or if he has 25 years’ service regardless of age.

Law enforcement officers may retire, upon approval of

their employing agency and the Civil Service Commis-

sion, under the involuntary separation provision. No

employee may voluntarily retire and receive an immedi-

ate annuity before reaching age 55.

The requirements of the present law are too strict

when applied to air traffic controllers. The average con-

troller enters the service in his early twenties, often after

military service, and by the time he is qualified as a

journeyman controller, is near 30. If he entered the FAA

at age 25, he would have to complete 30 years of service

before becoming eligible for retirement. Although there

are some exceptions to the general rule, most controllers

are not able to control traffic in busy facilities at any age

near 55 — the physical and emotional strength required to

do the job, to work odd and continuously changing work

shifts, and to insure air safety for the traveling public is

simply too much for any man in that age bracket.

The committee recommends that air traffic control-

lers be separated from the normal retirement require-

ments of the civil service system and offered a

preferential system. H.R. 8083 provides that new system:

1. A controller may retire at age 50 if he

has completed 20 years of service as a controller,

and his right to retire after completing that basic

20 years’ service as a controller shall not be

affected if he leaves his position as a controller

to accept another position;

App. 25

2. A controller may retire after 25 years of

service as a controller regardless of age, and his

right to retire after completing that basic 25

years’ service as a controller shall not be

affected if he leaves his position as a controller -

to accept another position.

3. A controller shall be guaranteed an

annuity equal to not less than 50 percent of his

average salary over the highest 3 years of his

service. This means that a controller with 20

years of service who is age 50 will receive an

annuity of 50 percent of his average pay rather

than 36'/4 percent, which is the annuity other-

wise applicable to an employee having 20 years

of service.

The committee recognizes that selecting air traffic

controllers for preferential retirement treatment consti-

tutes a significant change of policy for the civil service

retirement system, but the unique employment of these

employees justifies such a system. No other Government

worker is so directly involved in the safety of millions of

Americans who travel by air each year, or the safety of

many millions of dollars of aviation equipment used to

transport the public. That no other group has such a

preferential system is not a logical argument for denying

such benefits for a unique group.

FLIGHT SERVICE STATION PERSONNEL AND DEFENSE

DEPARTMENT CONTROLLERS

The committee has given careful consideration to the

petitions of employees of flight service stations and civil-

ian controllers outside the Department of Transportation

App. 26

to be included within the new retirement benefits estab-

lished-by H.R. 8083. By an informal vote, the committee

decided that at this time these two groups of employees

would not be covered.

However, in lieu of immediate coverage, the commit-

tee requests that the Department of Defense, in the case

of civilian controllers employed therein, and the Depart-

ment of Transportation, in the case of flight service sta-

tion employees, submit to the committee a report on the

justification for including or excluding these two groups

from the provisions of this bill.

Flight service station employees seem particularly

suited for inclusion in this program for several reasons.

For instance, when an air traffic controller at a major

facility loses his proficiency and should not continue as a

controller, he could easily be transferred to a flight ser-

vice station and continue to render valuable service to the

Government and the public, but the lack of a similar

retirement program for service station employees works

to his complete disadvantage. In some cases, it appears

that flight service station employees go far beyond the

basic task of supplying weather information for aviators.

If in fact FSS employees are engaged in activities involv-

ing the separation and control, or either, of aircraft, they

are controllers to the extent that they perform such

duties, and it is inequitable to exclude them from the new

program. + .

A complete report on this issue should be submitted

to the committee by the beginning of the 93d Congress.

App. 27

SECTIONAL ANALYSIS

Section 1 of the bill offers a definition of who is an air

traffic controller for the purposes of this bil!. A controller

is a person who is directly engaged in the separation and

control of aircraft, or a person who is the immediate

supervisor of such a person. It does not apply to persons

who are on some level of supervision above active con-

trol. The Secretary of Transportation shall determine the

applicability of the definition. The committee believes

that it is in the best interest of the Government for the

Secretary to include employees who are marginally

involved in air traffic control rather than exclude such

employees. That an employee maintains physical and

technical proficiency for control work should not auto-

matically entitle him to coverage — the end result of that

would be that all employees regardless of their work

would maintain proficiency and have it written into their

job description. But the fact that an employee does not

read a scope or bring in airplanes does not mean that he

is not directly engaged in the separation and control of

aircraft. His work may be so closely related - that is,

directly involved - that he is in fact a controller even

though it is not in his primary job description. The com-

mittee believes that such an employee should be

included.

In some instances, the committee has observed that

second-line supervisors are frequently involved in control

work. Manpower limitations, patterns of traffic, and

other factors may require that an employee who is higher

than the first line supervisor is in fact directly engaged in

control. If this situation occurs, the employee should be

covered. He should in no circumstances be excluded

App. 28

merely because his status or job description is beyond the

purview of the letter of the definition. It is far more

important to determine what he does rather than what

his job description says he does in order to decide

whether he is covered.

Section 2 provides authority for the Secretary of

Transportation to set a maximum entry age for initial

appointments for air traffic controllers. Section 2(c) is a

restatement of existing law.

Section 3 enacts a new section 3381 to title 5, United

States Code, which establishes the job training program

for air traffic controllers who are removed from their

positions either before they become eligible for retire-

ment benefits or when they are eligible. This provision

differs from the administration recommendation, which

did not offer the employee eligible for retirement any job

training opportunities. The committee recommends that

the training offer be across the board to all controllers,

and that the training opportunity be the right of the

employee, if he wishes to exercise it, rather than discre-

tionary authority with the Agency. The type and duration

of training is within the authority of the Agency to estab-

lish, and should be carried out in a manner to benefit the

employee and the program itself.

The language of section 3 has been redrafted, but the

substance of the provision, except as noted above, has not

been altered.

Section 3 also enacts a new section 3382 to title 5,

United States Code, relating to civil service retirement.

The Secretary of Transportation may remove an employee

in the interest of aviation safety, the efficient control of air

App. 29

traffic, or for the physical or mental health of the

employee. An employee so removed does not have an

appeal to the Civil Service Commission, but does, under

the new section 3382, have appeal to a board of review,

which shall have the power to determine the validity of

the Secretary’s action and issue a decision which shall be

binding on the employee or the Secretary. The board of

review shall be constituted of three members, one

selected by the employee, one by the Secretary, and one

by the Chairman of the Civil Service Commission, who

shall serve as the chairman of the board of review. An

employee who is not eligible for retirement under the

new early retirement provisions of H.R. 8083 continues to

have his rights of appeal to the Civil Service Commission

from any decisions of the Secretary or the board of

review, as applicable.

Section 4 provides a maximum age limit for air traffic

controllers. A controller may not work past the last day of

the month in which he reaches age 56, unless the Secre-

tary approves his continuance in the service as a control-

ler until age 61. The committee interprets this language to

grant complete authority to the Secretary in regard to the

extension, which may be withdrawn at any time during

that 5-year period. The controller does not acquire the

right to work an additional full 5 years simply because

the Secretary has granted an extension of service time to

him.

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.