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CLARRY v. UNITED STATES

July 5, 1995

JAMES S. CLARRY, ARCHER BAILEY, GEORGE G. FAULKNER, DAVID B. McCOLLUM and DAVID P. ROBERTSON, on behalf of themselves and all others similarly situated, Plaintiffs, against UNITED STATES OF AMERICA, FEDERICO F. PENA, as Secretary of the Department of Transportation of the United States, DAVID R. HINSON, as Administrator of the Federal Aviation Administration, and JAMES B. KING, as Director of the Office of Personnel Management, Defendants.


The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Judge.

 Plaintiffs, former Air Traffic Controllers, seek declaratory judgment and injunctive relief in this case which relates to the nationwide Air Traffic Controllers strike which began on August 3, 1981. Specifically, plaintiffs ask this Court to declare that the total ban on their re-employment with the Federal Aviation Administration ("FAA"), and the related policy to ban their employment with private entities under contract with the FAA was, and in the case of the latter policy, continues to be unconstitutional. Moreover, plaintiffs claim that the policy violated the Administrative procedures Act, 5 U.S.C. § 501, et seq., and was not in accordance with federal regulations. Plaintiffs further seek an order requiring preferential reinstatement, and an injunction barring the FAA from enforcing the policy with regard to private contractors. At oral argument, and over defendant's objections, this Court granted plaintiff Clarry's motion to amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure but held that it would address simultaneously the challenges to both pleadings (as if the amended pleading were treated as another pleading.) (Tr. at 2). *fn1" Defendants seek dismissal of the original complaint and the "amended" complaint on the grounds that the Court lacks subject matter jurisdiction, the claims are moot and that neither complaint states a claim upon which relief may be granted. For the reasons discussed below, plaintiff's original and plaintiffs' "amended" complaints are dismissed with prejudice.

 FACTS

 On August 3, 1981, members of the Professional Air Traffic Controllers Organization, ("PATCO") of which plaintiff Clarry and the other plaintiffs were members, commenced an illegal, nationwide strike against the United States. *fn2" On that day, President Ronald Reagan issued an ultimatum directing the PATCO strikers to return to work within forty-eight hours or automatically be discharged from employment with the FAA. Those air traffic controllers - approximately 11,000 of them - who did not report for work on August 5, 1981 were terminated.

 Shortly after the strike, the Office of Personnel Management ("OPM") determined that pursuant to 5 C.F.R. § 731.303 the PATCO strikers were barred from any federal employment for three years. (Am. Compl. P 25). On December 8, 1981, however, President Reagan issued a directive to the Administrator of the OPM. (Am. Compl. P 28). The directive stated that after three years the discharged PATCO strikers should be permitted to apply for federal employment outside the scope of the FAA but that they should not be deemed suitable for employment with the FAA. (Am. Compl. P 28). The OPM interpreted the directive as indefinitely banning the PATCO strikers from reemployment with the FAA and any public and private entities under a contract or which interfaced with the FAA. (Am. Compl. PP 29-33).

 The ban on employment of PATCO strikers by the FAA remained in effect for nine years. On August 12, 1993, subsequent to the filing of this lawsuit, President Clinton repealed the ban instructing the Director of OPM, "that PATCO members should be eligible to apply, without preference, when there are openings with the FAA. Subsequently, plaintiff Clarry amended his complaint to add four other plaintiffs and class action allegations on behalf of themselves and others similarly situated.

 Each plaintiff alleges that he applied for reinstatement as an air traffic controller with the FAA but was denied a suitability determination as well as employment. The years in which they allegedly applied are as follows: Clarry applied in 1991; Bailey applied in July 1993; Faulkner has applied every year since 1984; McCollum applied in 1990; Robertson has applied every year since 1984. (Am. Compl. PP 7-11). Moreover, in 1991 plaintiff Clarry applied for but was denied employment with a private company that was under contract with the FAA. (Am. Compl. P 7).

 DISCUSSION

 a. Plaintiff's Original Complaint

 Defendants seek dismissal of plaintiff James Clarry's original complaint on the grounds of mootness and lack of jurisdiction following the repeal of the employment ban in August 1993. Indeed, in his original complaint, plaintiff seeks a declaratory judgment against the FAA's former policy and an injunction against the aspect of the policy that prohibited private companies contracting with the FAA from recruiting or employing PATCO strikers. (Compl. PP 1-2). Moreover, plaintiff seeks $ 6,000,000.00 in damages and attorneys' fees. (Compl. P 3-5).

 It is a matter of public record that the ban on reinstatement of PATCO strikers was repealed by the President on August 12, 1993. Plaintiff amended his complaint to reflect this change. Indeed, in the amended complaint plaintiffs challenge only the bar against their employment by the FAA imposed between August 1984 and August 1993. (Am. Compl. PP 1, 61). Plaintiff does not allege that the former policy is still in effect and accordingly, his requests for a declaratory judgment and an injunction against the former policy banning his employment with the FAA are moot.

 As to the money damages, plaintiffs delete all requests for the same in their amended complaint. Defendants argue that by their amendments plaintiffs implicitly acknowledge that there is no jurisdictional basis for an award of such damages. Notwithstanding defendants' arguments, where plaintiffs seek only declaratory and injunctive relief in the ...


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