On March 31, 2005, several current or former employees of the Federal Aviation Administration (“FAA”) who were forty years old or older filed this age discrimination lawsuit in the U.S. District Court for the District of Columbia, against the FAA and the U.S. Department of Transportation (“DOT”). The plaintiffs, represented by private counsel, sued under the Age Discrimination in Employment Act (“ADEA”) and alleged that the FAA and DOT discriminated against them by targeting their jobs for outsourcing and terminating their federal employment on the basis of age. Specifically, the plaintiffs claimed that the FAA violated the ADEA through their decision, as announced on February 1, 2005, to contract out the Flight Service component of Air Traffic Control, resulting in the termination of the plaintiffs' positions with the FAA, the elimination or reduction of their pay and retirement benefits, and the premature termination of their federal employment. The plaintiffs sought injunctive relief, back pay and benefits, front pay, record correction, and attorney fees.

On June 26, 2005, the plaintiffs moved for a preliminary injunction to stop the FAA from outsourcing the Flight Service component. The court (Judge Richard W. Roberts) denied this motion on September 30, 2005, concluding that the plaintiffs’ projected job loss was not likely to constitute irreparable harm because it could be corrected by money damages. 2005 WL 3276163. The plaintiffs filed an interlocutory appeal to the D.C. Circuit on October 5, 2005, but the D.C. Circuit affirmed the district court's denial on December 28, 2005.

On June 29, 2005, the plaintiffs filed a motion to certify the class, but the court did not rule on this motion. The case instead moved forward with the plaintiffs constituting a putative (uncertified) class of over eight-hundred members. In the meantime, the plaintiffs sought to add many additional plaintiffs. The court granted a motion to add new plaintiffs on March 31, 2006.

On August 24, 2005, the defendants moved to dismiss for lack of subject matter jurisdiction, or in the alternative, for summary judgment. Judge Roberts denied this motion on January 8, 2007, holding that the court had jurisdiction over the case, the defendants did not have sovereign immunity under the ADEA, and summary judgment would be premature without discovery. 474 F.Supp.2d 1. The court denied, without prejudice, the plaintiffs's motion for class certification on February 7, 2007.

For the next several months, the parties engaged in discovery. This process was interrupted when, on June 8, 2007, the plaintiffs’ attorney, Gebhardt & Associates, moved to withdraw as counsel. After the plaintiffs’ former union could no longer pay for the representation, Gebhardt had sought payment from the individual plaintiffs. More than 700 of the 912 individual plaintiffs had not paid attorney fees or expenses, putting the firm in a position of providing pro-bono representation for hundreds of plaintiffs. The defendants opposed this motion, concerned that a case involving more than 900 pro-se plaintiffs would turn into a logistical nightmare for the defendants’ attorneys. On September 14, 2007, proceedings were held before Judge Roberts. He denied the plaintiff’s motion to withdraw attorney as to all but 20 individual plaintiffs who specifically declared they wished to proceed pro se.

With so many plaintiffs living all across the country, much of the litigation concerned the dismissal of individual plaintiffs who failed to respond to letters asking whether they wanted to continue with the case. Three such plaintiffs moved for reconsideration of their dismissal. Judge Roberts denied their requests on February 17, 2009. 597 F.Supp.2d 84. Other individuals sought to enter the litigation. On January 7, 2008, Judge Roberts denied the motion to join or intervene, holding that the individuals missed the deadline to join. 529 F.Supp.2d 24.

On April 27, 2009, the defendants filed a motion for summary judgment, and on June 15, 2009, the plaintiffs filed a cross-motion for summary judgment. For years following this, the court did not rule on these motions. On May 21, 2014, the plaintiffs filed a motion to expedite consideration of their cross-motion for summary judgment. After they filed this motion, the docket remained inactive for nearly two years, until April 1, 2016, when it was reassigned to Judge Paul L. Friedman following Judge Robert’s retirement.

On June 30, 2016, the court issued a minute order directing the parties to update the court on the background and status of the case, including whether there was a need for new briefing on the cross-motions for summary judgment and whether the parties were amenable to mediation.

On September 27, 2016, the plaintiffs withdrew the cross-motion for summary judgment and instead filed a supplemental brief in opposition to the defendants’ motion for summary judgment on September 30, 2016. Attorneys for the plaintiffs also changed, and on December 14, 2016, Judge Friedman granted Gebhardt’s motion to withdraw as attorney, satisfied that the plaintiffs were adequately represented by new counsel. 220 F.Supp.3d 130.

On May 26, 2017, Judge Friedman granted the defendant’s motion for summary judgment regarding the plaintiffs’ disparate impact claim but denied the motion regarding the plaintiffs’ disparate treatment claims. 2017 WL 2312884. On August 18, 2017, the plaintiffs moved to substitute the personal representatives for estates of deceased plaintiffs. Judge Friedman issued an order on October 16, directing the plaintiffs to clarify “whether counsel do in fact represent the personal representatives of the decedents’ estates.” 2017 WL 4675733. Judge Friedman granted the plaintiffs’ motion for substitution of estates on December 13, 2017.

On March 27, 2018, Judge Friedman granted the dismissed plaintiffs’ motion asking to reinstate their claims. On the same day, the court also granted the prospective plaintiffs’ motion to reconsider the Court’s prior orders and permitted the prospective plaintiffs to join the case. The plaintiff then filed a second amended complaint on April 10, 2018 to add additional identified individuals as plaintiffs.

On July 17, 2018, Judge Friedman granted in part and denied in party the plaintiffs’ motion to reopen discovery after it closed nine years ago. The court ordered that “discovery is reopened for the limited purpose of permitting expert reports and testimony regarding the requirements of the A-76 process and the extent to which the FAA process was consistent with or different from the requirements and practices of other agencies conducting A-76 competitions.”

On July 27, 2018, the plaintiffs moved to join an additional 114 plaintiffs, but the motion was denied without prejudice on March 21, 2019. That same day, the court granted in part and denied in party the plaintiffs’ motion to reinstate all individuals who had expressed their intention to participate as plaintiffs in this case.

The case is ongoing.

Jordan Rossen - 09/03/2010
MJ Koo - 03/13/2017
Gabriela Hybel - 11/29/2017
Sichun Liu - 03/21/2019


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