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NATCA Lacks Standing in 17-Year Air Traffic Control Tower Battle

By Robyn Hagan Cain on August 17, 2011 | Last updated on March 21, 2019

The National Air Traffic Controllers Association (NATCA) is a persistent bunch. We don't know much about air traffic controlling, but this seems like an admirable quality in people who control our planes, and thus our lives.

NATCA has been fighting a Federal Aviation Administration (FAA) decision to privatize "Level I" air traffic control towers since 1993, when the FAA privatized the Level I towers to comply with Office of Management and Budget (OMB) Circular A-76. The Circular prohibited the federal government from performing an activity that could be performed for less cost by the private sector.

Approximately 1500 government air traffic controllers lost their jobs, had to train to operate higher-level towers, or found employment with private air traffic control towers as a result of the initiative. NATCA and three individual plaintiffs, David Clinkscale, Margaret Graham, and David Khanoyan, sued to challenge tower privatization in 1994, claiming that operating the Level I towers was an inherently governmental activity, so privatization violated the terms of Circular A-76.

NATCA's appeal before the Sixth Circuit challenged two orders, from 2005 and 2009, dismissing its case.

First NATCA argued that the district court erred in its 2005 opinion regarding whether the tasks performed by Level I tower employees were inherently governmental.

The Sixth Circuit Court of Appeals ruled that, because federal law governing airports applies to the Level I ATC towers at issue here and permits the FAA to contract with private, non-governmental entities for their operation, Congress effectively declared work in those towers not to be inherently governmental.

Next, NATCA appealed from a 2009 motion to dismiss, which challenged the duration of NATCA's "prudential standing" in the case. NATCA claimed that its standing had persevered through the litigation, but the Sixth Circuit ruled that the plaintiffs no longer demonstrated the injury in fact necessary for Article III standing.

In 1996, the district court concluded the individual plaintiffs' injury was the "loss of their current Level I government jobs." Because the Sixth Circuit affirmed the district court's 2005 order foreclosing the plaintiffs' challenge to the privatization of Level I ATC towers, the plaintiffs' only remaining claim was that they would be injured by the renewal of private contracts at towers exceeding Level I classification.

None of the individual plaintiffs who sued with NATCA stood to lose their jobs with the FAA's renewal of any private contracts. Graham and Khanoyan are now retired, and Clinkscale has moved to another tower.

Will the plaintiffs persist and appeal the Sixth Circuit Court of Appeals's decision to the Supreme Court? Legally, we agree with the court's holding on the plaintiff's standing, but emotionally, we want to see them fight to the end. The plaintiffs have endured a number of losses over the last 17 years; we say what's one more? Go for it, NATCA.

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