Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANDREW J. BRIGIDA,
Plaintiff,
v.

Civil Action No. 16-2227 (DLF)

ELAINE L. CHAO, Secretary,
U.S. Department of Transportation,
Defendant.

MEMORANDUM OPINION & ORDER
Before the Court is Andrew Brigida’s Motion for Reconsideration. Dkt. 39. For the
reasons that follow, the Court will grant the motion.
I. BACKGROUND
This suit arises from Brigida’s failed application for employment as an air traffic
controller with the Federal Aviation Administration (FAA). Historically, the FAA has hired air
traffic controllers from various categories of applicants, including applicants who graduated from
programs accredited by the FAA’s Collegiate Training Initiative (CTI) and passed an aptitude
test, the Air Traffic Control Selection and Training examination. Second Am. Compl. ¶¶ 21–30,
35, Dkt. 26. CTI graduates who passed the aptitude test entered a direct hire pool of applicants,
were placed on a “qualified applicant register” list, and were given hiring preference for air
traffic controller positions. Id. ¶ 31. In 2013, Brigida graduated from a CTI institution, Arizona
State University, which recommended him to the FAA, and he passed the aptitude test with the
top possible score of 100%. Id. ¶¶ 76–77. As a result, the FAA placed Brigida on the qualified
applicant register. Id. ¶ 78.

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 2 of 11

In late 2013, however, the FAA changed its process for hiring air traffic controllers. Id.
¶¶ 47–50. Instead of hiring from the qualified applicant register, the FAA required all
applicants—including CTI graduates—to apply through a nationwide vacancy announcement
open to all U.S. citizens and issued in February 2014. Id. ¶ 49. Under the new process,
applicants first completed a “biographical questionnaire.” Id. ¶ 50. If an applicant “passed” the
biographical questionnaire and otherwise qualified, the applicant then took the cognitive portion
of the aptitude test. Id. According to Brigida, in late January 2014, the FAA informed him that
the qualified applicant register was being eliminated and that he would need to reapply under the
new hiring process if he still wished to be considered. Id. ¶ 79. In February 2014, Brigida
reapplied and took the biographical questionnaire. Id. ¶ 80. Brigida alleges that, on February 27,
2014, the FAA notified him that “he had failed the biographical questionnaire and was ineligible
to be hired” as an air traffic controller. Id. ¶ 82. In December 2015, Brigida filed suit in the
District of Arizona on behalf of himself and a putative class, asserting that the new hiring
process discriminated based on race in violation of Title VII and the Fifth Amendment (under
what is referred to as “the equal protection component” of the Fifth Amendment’s due process
clause). See Compl. ¶¶ 79–96, Dkt. 1; accord Second Am. Compl. ¶¶ 97–114.
Several months later, Congress established a new air-traffic-controller hiring regime via
the FAA Extension, Safety, and Security Act of 2016. See Pub. L. No. 114-190, § 2106, 130
Stat. 615, 620 (July 15, 2016) (codified at 49 U.S.C. § 44506(f)). Under the 2016 Act, the FAA
“shall give preferential consideration” to experienced air traffic controllers, i.e., “qualified
individuals maintaining 52 consecutive weeks of air traffic control experience” while serving at
an FAA air traffic control facility (in a prior employment stint), a Department of Defense air
traffic control facility, or a tower under contract with the FAA. 49 U.S.C. § 44506(f)(1)(A).

2

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 3 of 11

“After giving preferential consideration to [that group of] applicants,” the FAA “shall consider
additional applicants . . . by referring an approximately equal number of individuals for
appointment among” two “applicant pools,” and the number of applicants referred from each
pool “shall not differ by more than 10 percent.” Id. § 44506(f)(1)(B)(i). “Pool 1 applicants” are
eligible veterans and CTI graduates recommended by their institutions. Id. § 44506(f)(1)(B)(ii).
“Pool 2 applicants” are members of the general public “who apply under a vacancy
announcement recruiting from all United States citizens.” Id. § 44506(f)(1)(B)(iii).
In addition, the 2016 Act prohibits the FAA from using “any biographical assessment”
when hiring experienced applicants and Pool 1 applicants. Id. § 44506(f)(1)(C)(ii),
§ 44506(f)(2)(A). Also, for experienced controllers, CTI graduates, and military veterans who
were “disqualified” from the FAA’s 2014 hiring round “as the result of a biographical
assessment,” the FAA “shall provide the applicant an opportunity to reapply for the position as
soon as practicable under the revised hiring practices” and, subject to a few conditions, “shall
waive any maximum age restriction” that would ordinarily apply. Id. § 44506(f)(2)(B).
In this action following the 2016 Act, the government filed a partial motion to dismiss
under Rule 12(b)(6) or strike under Rule 12(f), as well as a motion to transfer based on improper
venue. Dkt. 27. The Arizona federal district court (1) dismissed Brigida’s equal protection
claim; (2) dismissed all of the defendants except the Transportation Secretary;1 (3) struck
Brigida’s request for equitable relief; and (4) transferred the action to this Court. Order at 4–11
(Nov. 7, 2016), Dkt. 33. Brigida now asks the Court to reconsider discrete aspects of the prior
order. Pl.’s Mot. at 1, Dkt. 39. Specifically, Brigida asks the Court to restore the request for
1

When this suit began, Anthony R. Foxx was the Secretary of the U.S. Department of
Transportation. When Elaine L. Chao became the Secretary, she was automatically substituted
as the defendant. See Fed. R. Civ. P. 25(d).
3

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 4 of 11

equitable relief stricken by the prior order. Id. In the alternative, he requests that the Court
restore his equal protection claim. Id.
II. LEGAL STANDARDS
“[A]ny order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the action as to any of
the claims or parties and may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Under Rule 54(b),
a district court may reconsider an interlocutory order “as justice requires.” Capitol Sprinkler
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (citation omitted); see
also Cobell v. Jewell, 820 F.3d 12, 25 (D.C. Cir. 2015). “In general, a court will grant a motion
for reconsideration of an interlocutory order only when the movant demonstrates: (1) an
intervening change in the law; (2) the discovery of new evidence not previously available; or (3)
a clear error in the first order.” Univ. of Colo. Health at Mem’l Hosp. v. Burwell, 164 F. Supp.
3d 56, 62 (D.D.C. 2016) (internal quotation marks omitted). For example, “[j]ustice may require
revision when the Court has patently misunderstood a party, has made a decision outside the
adversarial issues presented to the Court by the parties, has made an error not of reasoning but of
apprehension, or where a controlling or significant change in the law or facts has occurred since
the submission of the issue to the Court.” Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101
(D.D.C. 2005) (citation and alteration omitted); see also Hall & Assocs. v. EPA, 2016 WL
5396653, at *3 (D.D.C. Sep. 27, 2016) (“[I]n order to promote finality and protect the court’s
judicial resources, the court is loath to revisit its prior decision absent extraordinary
circumstances such as where the initial decision was clearly erroneous and would work a
manifest injustice.” (citation omitted)). “The burden is on the moving party to show that

4

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 5 of 11

reconsideration is appropriate and that harm or injustice would result if reconsideration were
denied.” United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d
258, 268 (D.D.C. 2012).
Because the order at issue was based on Rule 12(b)(6) and Rule 12(f), those standards
also inform the analysis. Rule 12(b)(6) allows a defendant to move to dismiss for failure to state
a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)
motion, a complaint must contain factual matter sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially
plausible claim is one that “allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Well-pleaded
factual allegations are “entitled to [an] assumption of truth,” but the assumption of truth does not
apply to a “legal conclusion couched as a factual allegation.” Id. 678–79 (quotation marks
omitted). When evaluating a Rule 12(b)(6) motion, a court construes the complaint “in favor of
the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
alleged,” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks
omitted), and the court may consider only the complaint itself, documents attached to the
complaint, documents incorporated by reference in the complaint, and judicially noticeable
materials, EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Under Rule 12(f), a court “may strike from a pleading . . . any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[M]otions to strike, as a general rule,
are disfavored.” Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647
F.2d 200, 201 (D.C. Cir. 1981) (citing 5 Wright & Miller, Federal Practice & Procedure § 1380
(1969)); accord Burnett v. WMATA, 139 F. Supp. 3d 231, 236 (D.D.C. 2015). Striking a portion

5

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 6 of 11

of a pleading is an “extreme remedy” usually reserved for “accusations [that] are indefensible,
harassing, or detract from the dignity of the Court.” Fay v. Perles, 59 F. Supp. 3d 128, 134
(D.D.C. 2014). When considering a motion to strike, a court “will draw all reasonable inferences
in the pleader’s favor and resolve all doubts in favor of denying the motion to strike.” Bond v.
DOJ, 828 F. Supp. 2d 60, 72 (D.D.C. 2011).
III. ANALYSIS
As filed in the District of Arizona, Brigida’s prayer for relief stated:
Plaintiff Brigida, on behalf of himself and the Class he seeks to represent,
respectfully requests that this Court: . . . Enter an order directing the FAA to
reinstate the purged Qualified Applicant Register and give hiring preference to
Plaintiff Brigida and other putative Class Members.
Second Am. Compl. at 25; see also id. ¶¶ 102, 113 (same). In the prior order at issue, the
Arizona federal district court struck Brigida’s request for equitable relief. See Order at 7–8. The
Arizona court stated that this request is improper because, although Title VII empowers courts to
order equitable relief, Brigida does not challenge the 2016 Act and the court “cannot prescribe
relief in contravention of an unchallenged statute.” Id. at 7. In other words, because the 2016
Act eliminates the biographical questionnaire for CTI graduates, but does not restore the
qualified applicant register or give hiring preferences to CTI graduates who passed the aptitude
test, the requested relief exceeds the court’s equitable powers under Title VII. Id. The prior
order further reasoned that granting the relief would bind the FAA “by two inconsistent
directives”: (1) a court directive to reinstate the qualified applicant register and give preference
to CTI graduates who passed the aptitude test; and (2) the 2016 Act, “which directs that hiring
preference be given to experienced Air Traffic Controllers.” Id. at 8. According to the prior
order, “Brigida does not argue that both of these directives can reasonably be accomplished,” so

6

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 7 of 11

the requested relief fails. Id. Brigida now asks that the Court reconsider the prior order and
restore his request for equitable relief.2
If an employer intentionally engages in a practice prohibited by Title VII, “the court may
. . . order such affirmative action as may be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees . . . or any other equitable relief as the court deem
appropriate.” 42 U.S.C. § 2000e-5(g)(1). “A district court has wide discretion to award
equitable relief, and it should fashion this relief so as to provide a victim of employment
discrimination the most complete make-whole relief possible.” Kapche v. Holder, 677 F.3d 454,
460 n.3, 464 (D.C. Cir. 2012) (internal quotation marks and alteration omitted); see also Peyton
v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002); Albemarle Paper Co. v. Moody, 422 U.S.
405, 418 (1975) (“Where racial discrimination is concerned, the district court has not merely the
power but the duty to render a decree which will so far as possible eliminate the discriminatory
effects of the past as well as bar like discrimination in the future.” (internal quotation marks and
alteration omitted)).
Equity, of course, follows the law, and the Court cannot prescribe equitable relief that
conflicts with the 2016 Act. See Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378,
1385 (2015). Thus, the prior order was absolutely correct that, if Brigida were to prevail on the
merits of his Title VII claim, the Court could not re-impose the entire FAA hiring regime that
2

It is not entirely clear which Rule the Arizona federal district court relied on when striking
Brigida’s request for equitable relief, and thus it is not entirely clear whether Rule 12(b)(6) or
Rule 12(f) governs this Court’s reconsideration. The government moved to dismiss Brigida’s
request under Rule 12(b)(6) or, in the alternative, to strike the request under Rule 12(f). See
Defs.’ Mot. at 4, 9, Dkt. 27. The prior order stated the Rule 12(b)(6) standard and did not
mention Rule 12(f), but repeatedly used the term “strike.” See Order at 4, 8, 11. Regardless, the
key question under both standards is the same in this case: whether the requested relief is
available as a matter of law. See Cronin v. Adam A. Weschler & Son, Inc., 904 F. Supp. 2d 37,
44 (D.D.C. 2012); Def.’s Opp’n at 15 n.2, Dkt. 40.
7

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 8 of 11

existed before the 2016 Act and before the allegedly discriminatory 2014 policy. In other words,
the Court could not “reinstate the Qualified Applicant Register” precisely as it existed within the
FAA hiring regime in late 2013, when Brigida stood a strong chance of being hired. See Second
Am. Compl. at 25; see also id. ¶ 39; Unedited Hr’g Tr. at 3–4.3
But the prior order went too far in characterizing Brigida’s request for equitable relief as
exclusively a request to reinstate the late-2013 regime. Brigida also asks the Court to order the
FAA to give him “hiring preference.” Second Am. Compl. at 25. The 2016 Act does not
establish such a comprehensive and precise hiring regime as to bar such equitable relief as a
matter of law. Although the 2016 Act might prevent Brigida from receiving a hiring preference
that is identical to the preference he received in the late-2013 regime, the Act does not totally
foreclose the possibility that Brigida could still receive some type of hiring preference. After all,
the 2016 Act does not make Brigida ineligible for hiring as an air traffic controller; rather, he
remains eligible as a Pool 1 applicant. See 49 U.S.C. § 44506(f)(1)(B)(ii); Unedited Hr’g Tr. at
10. And although the Act mandates that experienced applicants receive a hiring preference
before Pool 1 applicants, see 49 U.S.C. § 44506(f)(1)(A), the Act does not bar Brigida from
receiving some type of hiring preference within his pool. As a result, equitable relief under Title
VII remains possible at this stage. See Peyton, 287 F.3d at 1126 (directing district courts to
fashion Title VII relief “so as to provide a victim of employment discrimination the most
complete makewhole relief possible”).4
3

Once the final transcript is published, the Court will update transcript citations in accordance
with the final transcript instead of the unedited transcript.
The defendant further argues that the 2016 Act bars equitable relief because the Act “reflects
Congress’s awareness” of the cohort of CTI graduates rejected in the 2014 hiring round on the
basis of the biographical questionnaire, as well as Congress’s “policy decision” to attempt to
redress that cohort’s grievances. Def.’s Opp’n at 18–19. But just because the 2016 Act takes
certain steps to remedy a problem does not mean that the 2016 Act prohibits all other remedies.
4

8

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 9 of 11

Furthermore, Brigida suggests that the FAA is at a “27-year low” of employed air traffic
controllers; thus, there may be enough open jobs that the FAA could give hiring preference to
both experienced applicants and Brigida. See Pl.’s Reply at 8 n.4, Dkt. 43. The FAA does not
offer any reason to think the contrary. See Unedited Hr’g Tr. at 16 (“I’m not aware of the
precise numbers.”). Without more factual development, the Court cannot conclude that it would
be impossible to fashion—within the framework of the 2016 Act—a remedy involving some
type of hiring preference for Brigida and possibly the putative class members as well. That is
especially true because class certification remains speculative at this stage.
As a result, the Court concludes that the prior order misapprehended the nature of
Brigida’s request for equitable relief and clearly erred by concluding that any equitable relief
would be “inconsistent” with the 2016 Act simply because the Act “directs that hiring preference
be given to experienced Air Traffic Controllers.” Order at 8; see Univ. of Colo. Health, 164 F.
Supp. 3d at 62; Singh, 383 F. Supp. 2d at 101. The Court does not reconsider prior orders
lightly. See Hall & Assocs., 2016 WL 5396653, at *3. But these errors, if left undisturbed,
would work injustice by preventing Brigida from pursuing relief to which he may be entitled
under Title VII. See id. Thus, the Court will grant Brigida’s motion for reconsideration and
restore Brigida’s request for equitable relief to the extent that it requests an order directing the

After all, Title VII is also a congressional decision. “[A]bsent a clearly expressed congressional
intention, an implied repeal will only be found where provisions in two statutes are in
irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is
clearly intended as a substitute.” Carcieri v. Salazar, 555 U.S. 379, 395 (2009) (internal
quotation marks and alterations omitted). As discussed above, there is no indication that the
2016 Act forecloses all equitable remedies under Title VII, nor that the 2016 Act is clearly
irreconcilable with Title VII or a substitute for Title VII.
9

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 10 of 11

defendant to “give hiring preference” to Brigida and other putative class members. Second Am.
Compl. at 25.5
Finally, the Court notes that this opinion addresses only the narrow issue at hand:
whether Brigida can pursue equitable relief at this stage in his case. The Court takes no position
whatsoever on the merits of Brigida’s Title VII claim or the appropriate relief in the event that he
prevails.
CONCLUSION
For the foregoing reasons, it is ORDERED that the Brigida’s Motion for
Reconsideration, Dkt. 39, is GRANTED. Accordingly, it is
ORDERED that, pursuant to Rule 54(b), the prior order of November 7, 2016, Dkt. 33,
is REVISED as follows:
1.

On page 11 of the prior order, the sentence “Defendants’ motion to

dismiss, (Doc. 27), is GRANTED is revised to read: “Defendants’ motion to dismiss, (Doc. 27),
is GRANTED IN PART and DENIED IN PART.”
2.

On page 11 of the prior order, the sentence striking Brigida’s request for

equitable relief (“Plaintiff’s request that the Qualified Applicant Register be reinstated and that
hiring preference be given to CTI graduates who passed the AT-SAT is STRICKEN from the
Second Amended and Supplemental Complaint”) is removed from the order. It is further
ORDERED that, consistent with this opinion, Brigida’s request for equitable relief in his
Second Amended and Supplemental Complaint, Dkt. 26, is RESTORED. It is further

Brigida’s motion also requests, “in the alternative,” that the Court restore his equal protection
claim if the Court does not restore his request for equitable relief under Title VII. Pl.’s Mot. at 1;
see also Pl.’s Mem. at 22–23. Because the Court restores Brigida’s request for equitable relief,
the Court does not address the alternative argument.
5

10

 Case 1:16-cv-02227-DLF Document 50 Filed 05/31/18 Page 11 of 11

ORDERED that the defendant shall answer the Second Amended and Supplemental
Complaint, Dkt. 26, on or before June 21, 2018. See Dkt. 38 (plaintiff’s unopposed motion
proposing that the answer deadline be changed to 21 days after the Court resolves the motion for
reconsideration); cf. Fed. R. Civ. P. 12(a)(4).
SO ORDERED.

________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: May 31, 2018

11