Background

Brian Arnett (“Arnett”) claims that the Federal Aviation Administration (“FAA”) discriminated against him in violation of the Age Discrimination in Employment Act (“ADEA”) when he was deemed ineligible for three positions for which he applied in 2017 and 2018.[i] The district court granted summary judgment in favor of Pete Buttigieg in his capacity as Secretary of the FAA (“Secretary”).[ii]

Arnett was originally hired as an air traffic controller at the age of forty-seven, pursuant to the Retired Military Controller (“RMC”) program. The RMC allows military members to be hired as air traffic controllers even after reaching the maximum age for entry.[iii] The RMC hires whose initial appointments were made after their thirty-first birthday were only eligible for limited-time appointments.[iv]

In August of 2015, Arnett left his RMC position for a permanent Mission Support Specialist position, not directly related to separation or his position as a temporary air traffic controller.[v] Arnett subsequently applied to, and was not hired for, Mission Support Specialist positions directly related to the control of air traffic.[vi]

The District Court found Arnett’s claim was foreclosed by the maximum entry age statute, 5 U.S.C. § 3307(b), which provides the Secretary may fix the maximum age within which a person can be appointed an air traffic controller.[vii] The statute provides that no person who has reached their thirty-first birthday may be “originally appointed” an air traffic control specialist position.[viii] Courts have held that § 3307 is a valid exception to the ADEA.[ix]

The FAA argued that Arnett’s applications for employment were permissibly denied because Arnett was older than the statutory maximum age for entry when he applied for those air traffic controller positions.[x] The FAA also argued that, although Arnett was not seeking an “original appointment”, 5 U.S.C. § 3307(b) gives the FAA authority to conditionally waive the maximum entry age.[xi] In response to the motion for summary judgment, Arnett argued the statute did not apply to his applications.[xii] He further argued personnel actions in executive agencies affecting applicants and employees over forty should be free from any discrimination based on 29 U.S.C. §633a(a).[xiii]

The Ruling

The Ninth Circuit reversed and remanded to the district court for a trial.[xiv] The Ninth Circuit described the FAA’s argument as reading the “original appointment” language out of the statute, in violation of the fundamental principle of statutory construction that every word in a statute is to be given effect.[xv] The language of the statute creates an exception only for “original appointments.”[xvi] The FAA asserted the RMC program under which Arnett was first appointed was set up to avoid any issues with mandatory retirement age.[xvii] Notwithstanding the policy argument, the Ninth Circuit could not read the statute so broadly as to exempt the FAA’s hiring of air traffic controllers from the ADEA if an individual is not challenging the maximum entry age or the mandatory retirement age.[xviii] The court did note that this policy argument can be raised by the FAA as an affirmative defense against the ADEA claim.[xix]

As noted by the Ninth Circuit, very little evidence is required for a prima facie showing of age discrimination.[xx] Arnett, the Ninth Circuit found, made a sufficient showing.[xxi] The variant of the maximum age policy that applies to RMC hires singles out hires by age at the time of hiring and human resources policies treated RMC hires differently in determining their ability to move between positions after the age of thirty-one.[xxii] The Ninth Circuit noted that a jury could find that to be discriminatory on its face.[xxiii]

Takeaway

While the FAA can make policy arguments in defense of its policy prohibiting hiring of air traffic controllers over the age of thirty-one beyond original hires, the Ninth Circuit made clear that every word of the statute is to be read, and here, the statute clearly applies only to “original appointments.” The statute did not imply additional authority as argued by the FAA but rather limited the ADEA exception to “original appointments.” The district court will evaluate the policy arguments to determine if they are the basis of a viable ADEA defense. Given the strict language of the statute, it might be difficult for the FAA to overcome the ADEA claim.

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Sources

[i] Memorandum at 1, Arnett v. Buttigieg, No. 23-15432 (9th Cir., Feb. 20, 2024),  (unpublished opinion)

[ii] Id.

[iii] Arnett v. Buttigieg, No. CV-21-00284-TUC-JCH No. CV-21-00284-TUC-JCH (D. Ariz. Feb. 24, 2023)

[iv] Id.

[v] Id.

[vi] Id.

[vii] 5 U.S.C. § 3307(b)

[viii] Id.

[ix] See e.g. Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982)

[x] Doc. 53

[xi] Memorandum at 2, Arnett v. Buttigieg, No. 23-15432 (9th Cir., February 20, 2024)

[xii] Order, Arnett v. Buttigieg, No. CV-21-00284-TUC-JCH (D. Ariz., Feb. 23, 2023)

[xiii] 29 U.S.C. §633a(a)

[xiv] Memorandum, Arnett v. Buttigieg, No. 23-15432 (9th Cir., Feb. 20, 2024)

[xv] Id. at p. 3

[xvi] 5 U.S.C. § 3307(b)

[xvii] Memorandum at 3, Arnett v. Buttigieg, No. 23-15432 (9th Cir., Feb. 20, 2024)

[xviii] Id.

[xix] Id.

[xx] Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9^th Cir. 1966)

[xxi] Id. at p. 4

[xxii] Id.

[xxiii] Id.