Black v. United States

56 Fed. Cl. 19, 2003 U.S. Claims LEXIS 56, 2003 WL 1797939
CourtUnited States Court of Federal Claims
DecidedMarch 27, 2003
DocketNo. 02-343 C
StatusPublished
Cited by9 cases

This text of 56 Fed. Cl. 19 (Black v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. United States, 56 Fed. Cl. 19, 2003 U.S. Claims LEXIS 56, 2003 WL 1797939 (uscfc 2003).

Opinion

OPINION

BUSH, Judge.

BACKGROUND

For two days, beginning August 3, 1981, approximately 11,000 air traffic controllers, who were members of a union, the Professional Air Traffic Controllers Organization (PATCO), went on strike against the Federal Aviation Administration (FAA). As a result, in December 1981, President Ronald Reagan terminated all of the air traffic controllers who had gone on strike. Moreover, by memorandum dated December 9, 1981, to the Office of Personnel Management (OPM), President Reagan directed that the terminated air traffic controllers were indefinitely barred from employment by the FAA although they could apply for other federal agency employment.

On August 12, 1993, President William Jefferson Clinton lifted the ban on FAA employment of former air traffic controllers terminated as a result of the 1981 strike. Specifically, President Clinton stated that “ ‘PATCO members should be eligible to apply, without preference, when there are openingfs] with the FAA.’ ” Def. Mot. to Dismiss at 3. Aso on August 12, 1993, OPM, in a letter to the Department of Transportation (DOT), approved waivers of hiring restrictions on former air traffic controllers to “ ‘permit FAA to noncompetitively reinstate or transfer controllers who went on strike.’ ” Compl. at 9.

On October 4, 1993, OPM issued Bulletin 731-10 setting forth President Clinton’s decision and directing former PATCO air traffic controller employment inquiries to the FAA’s Office of Aviation Careers. Aso during the fall of 1993, the FAA issued a Recruitment Notice, numbered 93-01. The Recruitment Notice was sent to and/or received by some, but not all, of the terminated PAT-CO air traffic controllers. The Recruitment Notice specified that the period for application for re-employment was from September 1, 1993 to October 15, 1993. As a result, numerous former air traffic controllers applied for new positions with the FAA but plaintiffs assert that only approximately 600 former PATCO air traffic controllers have been re-hired since 1993. Additional former air traffic controllers who had been fired as a result of the PATCO strike did not receive notice of their eligibility to re-apply for their former positions or did not receive timely notice. Several of the named plaintiffs have been considered for employment; however, with the exception of Martin Heischberg (who was not re-hired until 2001), they have not yet been selected for re-employment.

In 1999, plaintiffs filed a complaint in the United States District Court for the Southern District of Florida against the FAA. On January 24, 2001, the Clerk’s office for the district court received the FAA’s motion for summary judgment. In its motion, the FAA argued that: (1) the effective date of the Wendell H. Ford Aviation Investment and Reform Act (the Ford Act), codified at 49 U.S.C. § 40122, is April 1, 1996; (2) in light of the Ford Act, plaintiffs were required to comport with the Civil Service Reform Act (CSRA) pertaining to allegations of prohibited personnel practices; (3) under the CSRA, plaintiffs’ complaints of prohibited personnel practices are not directly appealable to the Merit Systems Protection Board (MSPB), but, instead, plaintiffs are obliged to file those allegations with the Office of Special Counsel (OSC) pursuant to 5 U.S.C. §§ 1212 and 1214; and (4) according to 5 U.S.C. § 7703(b)(1), only if the OSC issues a letter declining to prosecute may plaintiffs file a complaint with a United States Court of Appeal or the United States Court of Federal Claims. Plaintiffs then filed their allegations of prohibited personnel practices with the OSC. On July 11, 2001, the OSC responded [21]*21to plaintiffs’ complaint, declined to investigate the complaint, and stated that the OSC had no jurisdiction to investigate any alleged prohibited personnel practice by the FAA with the exception of whistleblower’s claims.

On April 22, 2002, plaintiffs filed a Class Action Complaint for Declaratory Relief and Damages in this court. In their complaint, plaintiffs specifically state that the court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Plaintiffs rely upon 5 U.S.C. § 2302(b), 5 C.F.R. § 302.302, 5 U.S.C. § 330.705, 5 C.F.R. § 352.208, 5 U.S.C. § 210.102(8) and Section 347 of the 1996 DOT Appropriations Act as the bases for their claims. Plaintiffs also allege that this action is properly maintainable as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.1

Plaintiffs request that this court: (1) take jurisdiction over this action; (2) certify a class as defined by plaintiffs; (3) declare the actions of the FAA in connection with the reemployment of former PATCO controllers as prohibited personnel practices, in violation of the relied upon statutes and regulations; (4) order the FAA to re-employ former PATCO air traffic controllers in accordance with the aforementioned statutes and regulations and stay the hiring of non-PATCO air traffic controllers; (5) determine the damages suffered by plaintiffs and the class; (6) award plaintiffs their reasonable attorneys fees and costs; and (7) award such other relief as is necessary to effectuate the prompt re-employment of former PATCO air traffic controllers.

On July 26, 2002, defendant filed a motion to dismiss, arguing that the court must dismiss plaintiffs’ complaint for lack of subject matter jurisdiction. In the alternative, defendant requests that this court dismiss portions of plaintiffs’ complaint which are barred by the court’s six-year statute of limitations, as well as for failure to state a claim upon which relief can be granted. In their opposition brief, filed September 16, 2002, plaintiffs agreed with the government’s assertion that claims asserted prior to April 22, 1996 are time-barred pursuant to 28 U.S.C. § 2501. Defendant filed its reply brief on September 26,2002.

DISCUSSION

I. Motion to Dismiss Pursuant to 12(b)(1)

Jurisdiction may be challenged by the parties or by the court on its own at any time, and if jurisdiction is found lacking, this court must dismiss the action. Rule 12(h)(3) of the Rules of the Court of Federal Claims (RCFC).

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Bluebook (online)
56 Fed. Cl. 19, 2003 U.S. Claims LEXIS 56, 2003 WL 1797939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-united-states-uscfc-2003.