[00:00:05] Speaker 02:
The next case on our calendar is Jonathan Lee Sosnowitz versus attorney general for the state of Arizona and Ryan Thornell, director of the Arizona Department of Corrections.

[00:00:16] Speaker 02:
And that case has been submitted on the briefs.

[00:00:19] Speaker 02:
Um, the next case on our docket is Brian Alan Arnett versus Pete Buttigieg, uh, secretary of transportation.

[00:00:51] Speaker 02:
May come forward.

[00:00:54] Speaker 00:
Thank you.

[00:00:54] Speaker 00:
Good morning.

[00:00:56] Speaker 00:
May it please the court.

[00:00:58] Speaker 00:
I am attorney and Sultan and with me today is my client, Brian Allen Arnett.

[00:01:05] Speaker 00:
The answers to the questions posed in the court's January 12th 2024 order at docket number 26 are in answer to question number one, whether

[00:01:19] Speaker 00:
In 2017 and 2018, plaintiff was applying for an original appointment to a position as an air traffic controller.

[00:01:30] Speaker 00:
The answer to that question is no.

[00:01:34] Speaker 00:
The record support for that answer can be found at

[00:01:40] Speaker 00:
Only current FAA employees can apply for any of these positions.

[00:01:47] Speaker 00:
Also, at ER 52, one-year FAA experience is required.

[00:01:54] Speaker 00:
At ER 185, again, only current FAA employees can apply.

[00:02:00] Speaker 00:
At ER 193, the document says must have held an FAA 2152 FG14

[00:02:10] Speaker 00:
or above position or one year experience at a facility rated or either a MSS position for one year.

[00:02:20] Speaker 00:
At ER 195, again, it says only current FAA employees can apply.

[00:02:27] Speaker 00:
At ER 201, same thing as noted at ER 193.

[00:02:36] Speaker 00:
At ER page 204,

[00:02:39] Speaker 00:
Again, it says it must have held, the applicants must have held an FA 2152 FG 14 position.

[00:02:47] Speaker 03:
Ms.

[00:02:47] Speaker 03:
Holton.

[00:02:48] Speaker 00:
Yes, sir.

[00:02:50] Speaker 03:
I think you're getting to why we asked these questions about the suggestions in the record that this wasn't an original appointment due to the qualifications of the jobs for which Mr. Arnett was not hired.

[00:03:08] Speaker 03:
this issue raised in the district court, how did you preserve this kind of the 3307 question and framing this as an original appointment?

[00:03:19] Speaker 03:
There's several discussions, I think, that this was not an initial appointment, but the statutory language that we're focused on is the original appointment.

[00:03:29] Speaker 03:
Did you preserve this argument?

[00:03:31] Speaker 00:
I believe so, Your Honor.

[00:03:33] Speaker 00:
The record that we filed on appeal are the same documents that were filed before the district court in response to the agency's motion for summary judgment.

[00:03:47] Speaker 00:
So we did raise the issue, repeatedly talked in the factual section about Mr. Arnett had been initially appointed on a five-year contract in 2007.

[00:04:00] Speaker 00:
Again, he was appointed to a five-year contract in 2014 and that this was not an original appointment.

[00:04:11] Speaker 00:
This was not an initial appointment.

[00:04:12] Speaker 00:
He was applying already from a position of being a permanent employee and he was able to obtain that permanent position because he was able to satisfy the application requirements of a year in

[00:04:29] Speaker 00:
service to the agency.

[00:04:31] Speaker 03:
Would it be a violation of the ADA outside of the 3307B exception if the agency treated all similarly situated individuals as original appointments under their policy?

[00:04:51] Speaker 03:
In other words, I think there's suggestion on the agency side that

[00:04:59] Speaker 03:
that there's guidance that these are all original appointments from the point at which the new hire takes place.

[00:05:08] Speaker 03:
That's the original appointment.

[00:05:10] Speaker 03:
If they apply that consistently, can we find that it's still a violation of the ADA outside of 3307?

[00:05:21] Speaker 00:
I think not.

[00:05:22] Speaker 00:
I think that the definition of original appointment as you're requesting in question number three, that there is a definition that the agency provides and that can be found at ER 72 when looking at paragraph 3D.

[00:05:42] Speaker 00:
It talks about enter on duty date at paragraph 4A, the last paragraph of that section.

[00:05:50] Speaker 00:
It talks about, again, enter on duty date.

[00:05:53] Speaker 00:
And at paragraph 4A, again, on page ER 72, the last sentence of paragraph 2, it states, ATCS position for the first time.

[00:06:04] Speaker 00:
So whenever they're talking about an original appointment, they're talking about the very first time you came in to the agency to work for us.

[00:06:16] Speaker 00:
If I could now go to the answer to question number two.

[00:06:21] Speaker 00:
Thank you, your honor.

[00:06:23] Speaker 00:
I see this as a two-part question.

[00:06:26] Speaker 00:
I see the first part as being whether EMP 1.20 requires individuals initially appointed to air traffic controller positions under the age of 30 to continuously hold air traffic controller positions while over the age of 31

[00:06:43] Speaker 00:
in order to be eligible for promotions to other air traffic controller positions.

[00:06:48] Speaker 00:
I believe the answer to this question is no.

[00:06:51] Speaker 00:
The record support can be found at ER 72 where it states, again, if an individual has previously held ATCS position, then he or she may be appointed if over age 31.

[00:07:08] Speaker 00:
The word previously is used, the word continuously is not used in EMP 1.20.

[00:07:18] Speaker 00:
And we do know, and it's undisputed, that the plaintiff previously held ATCS positions with the FAA position at the time he applied for the positions at issue.

[00:07:34] Speaker 00:
The second part of the question whether

[00:07:37] Speaker 00:
such individuals may transfer to non-air traffic controller positions and still be eligible for promotions to air traffic controller positions?

[00:07:48] Speaker 00:
The answer to that question is yes.

[00:07:51] Speaker 00:
There is no such requirement that FAA air traffic controllers remain in a position or in that line called air traffic control.

[00:08:02] Speaker 00:
They can freely transfer between air traffic and non-air traffic control positions.

[00:08:09] Speaker 00:
For the temporary positions, they remain always in their position of record and return to it when the temporary assignment ends.

[00:08:19] Speaker 00:
You'll find that support at ER page 28, ER page 66, and ER page 59.

[00:08:30] Speaker 00:
Also, some air traffic controllers will transfer out of the air traffic control line into a non-air traffic control line and then transfer back because they're trying to earn their 20 years of good time, which allows them to retire with full retirement benefits at age of 56 or before age 56 if they have their 20 years in.

[00:08:56] Speaker 00:
However, to enjoy this flexibility,

[00:08:59] Speaker 00:
to move between air traffic and non-air traffic positions.

[00:09:04] Speaker 00:
The FAA employee must maintain their medical clearance and their certifications to operate the machines that help control our air traffic.

[00:09:15] Speaker 00:
Mr. Arnett continuously maintained his currency.

[00:09:21] Speaker 00:
Also, when looking at

[00:09:24] Speaker 00:
Docket entry 15-2, page 64 of 118.

[00:09:30] Speaker 00:
We find additional record support that when Mr. Arnett moved out of his time-limited ATC appointment, which the FAA says is a covered position, and moved into a non-covered position or non-air traffic control position, he could move back to a covered position.

[00:09:51] Speaker 00:
The record support for that

[00:09:53] Speaker 00:
is can be found at ER 28, ER 66, and ER 59.

[00:10:02] Speaker 02:
Could let me ask you, it seems like from 2015 to 2018, an employee could not leave the RMC program and get rehired as an air traffic controller.

[00:10:17] Speaker 02:
I'm curious about the policy for non-RMC hires.

[00:10:22] Speaker 02:
Let's say you have a 29-year-old applicant who is hired as an air traffic controller.

[00:10:31] Speaker 02:
Can that person move freely from covered to non-covered positions after their 31st birthday?

[00:10:38] Speaker 02:
Sure.

[00:10:42] Speaker 00:
If they have that, if they meet the minimum qualifications of having to be a current

[00:10:48] Speaker 00:
FAA employee with one year of experience at whatever GS or FS level, the 2152 series employee, that they can do that.

[00:11:01] Speaker 00:
They can move freely between air traffic control and non-air traffic control and move back and forth.

[00:11:11] Speaker 02:
And so your best authority for why the policies

[00:11:19] Speaker 02:
are not exempt, I guess, from ADA scrutiny is what?

[00:11:25] Speaker 00:
Is Babb versus Wilkie, Your Honor.

[00:11:29] Speaker 00:
The way in which the court describes the expansive reach of the ADA under Section 633 AA, it does not allow

[00:11:46] Speaker 00:
the agency under 5 USC 3307 B to ignore the requirements of 633 AA.

[00:11:59] Speaker 00:
I believe that BAP says sure, you know, you can have maximum entry ages, you can have forced retirement ages, but if someone is between the ages of 40 and 55,

[00:12:16] Speaker 00:
then the ADA applies, particularly in the federal government.

[00:12:21] Speaker 03:
I would think that an even better authority for that are the policies you've just read, where the agency itself treats for everyone else but Mr. Arnett and perhaps some others, we'll hear about that, as an original appointment only upon entry and not for promotion.

[00:12:40] Speaker 03:
I mean, it's that original appointment language that's in the statute that your contention is that the agency has limited that original appointment for other employees only upon the initial entry.

[00:12:56] Speaker 03:
And so it wouldn't apply to other people's promotions.

[00:12:58] Speaker 03:
They're only applying it to Mr. Arnett's promotions.

[00:13:01] Speaker 00:
Right.

[00:13:01] Speaker 00:
The way that the RMC program operated

[00:13:05] Speaker 00:
It basically erected barriers just for the people coming into the agency via the RMC program as it related to promotions and the flexibility to move back and forth between air traffic and non-air traffic.

[00:13:20] Speaker 03:
Would you concede that the RMC entry would have been the original appointment and that the agency at that point, that that would fall within the 3307B, just that the agency decided to waive that requirement for the RMCs?

[00:13:37] Speaker 00:
Yes and no.

[00:13:40] Speaker 00:
And let me tell you why I say no.

[00:13:42] Speaker 00:
Because Mr. Arnett, when he applied for the promotions at issue in this case, was already a permanent employee for over a year.

[00:13:54] Speaker 00:
So he could not have been an initial appointment under the RMC.

[00:13:59] Speaker 00:
He had moved out of the RMC program completely.

[00:14:03] Speaker 00:
And he's now just a regular permanent employee

[00:14:06] Speaker 00:
And he's trying to do what the other regular permanent employees do, which is to move back and forth.

[00:14:13] Speaker 00:
And they said, no, you can't do it because when we first hired you, keep in mind we're in 2017, 2018.

[00:14:20] Speaker 00:
They're saying, well, because we hired you in 2007 under an RMC program, which we canceled in 2015, you can't do that.

[00:14:30] Speaker 00:
And I think that that is at best internally inconsistent.

[00:14:34] Speaker 00:
May I reserve the rest of my time?

[00:14:36] Speaker 02:
Yes you may.

[00:14:37] Speaker 00:
Thank you.

[00:14:46] Speaker 04:
May it please the court.

[00:14:48] Speaker 04:
I am Assistant U.S.

[00:14:49] Speaker 04:
Attorney Michael Linton for the appellee defendant.

[00:14:52] Speaker 04:
The district court should be affirmed because the ADEA is inapplicable in these unique circumstances.

[00:14:57] Speaker 04:
Plaintiff did not establish a prima facie case.

[00:15:00] Speaker 04:
He failed to show age was a but for cause of his ineligibility.

[00:15:04] Speaker 04:
And then plaintiff did not plead a disparate impact claim.

[00:15:07] Speaker 04:
But even if he did, he did not show a significantly adverse or disproportionate impact on employees over the age of 40.

[00:15:15] Speaker 01:
Is it clear or not from the record what kind of position he was applying for?

[00:15:22] Speaker 04:
He was applying for, yes it was clear in the record, he was applying for, depending on the appointment, permanent and temporary covered positions.

[00:15:35] Speaker 04:
which recovered under Public Law 92-297.

[00:15:40] Speaker 04:
He was not applying for original appointments, just to be clear.

[00:15:44] Speaker 04:
The agency is not taking the position that he was applying for original appointments.

[00:15:48] Speaker 04:
I explained that, though.

[00:15:49] Speaker 04:
Why do you say that?

[00:15:50] Speaker 04:
Absolutely.

[00:15:51] Speaker 04:
His original appointment occurred in 2014 under the RMC program that carried with it special conditions.

[00:16:00] Speaker 02:
Is that defined?

[00:16:01] Speaker 02:
I mean, when you say original, where is that defined?

[00:16:04] Speaker 04:
The agency doesn't have a specific explicit codified definition of original appointment, but it is used in EMP 1.20, Section 4A, page 72, to refer to the first time an individual is appointed to an air traffic controller position in the FAA.

[00:16:23] Speaker 04:
So it's not the first time they are employed.

[00:16:25] Speaker 04:
It is not whether they're permanent employees within the FAA.

[00:16:28] Speaker 04:
It's the first time they enter into a position that is covered under public law 92 to 97, which involves the direct separation of traffic or the supervision thereof.

[00:16:38] Speaker 03:
So do you concede then that 3307 doesn't apply or why would it apply otherwise?

[00:16:46] Speaker 03:
Exactly.

[00:16:46] Speaker 04:
Well, 3307 applies because it gives the agency authority to set a maximum entry age.

[00:16:53] Speaker 03:
But within which an original appointment, it limits that delegation of authority.

[00:16:59] Speaker 03:
Does it not only to original appointments?

[00:17:01] Speaker 04:
It delegates the authority to set original appointments.

[00:17:04] Speaker 04:
Inherit with that authority is the authority to grant exceptions like the RMC program that gave plaintiff the opportunity to enter into air traffic controller service without which he would never have been able to enter service in the first place.

[00:17:19] Speaker 03:
I guess I'm trying to figure out where should we look

[00:17:23] Speaker 03:
to find that this limited delegation of authority is actually a broad delegation to do something beyond setting that original appointment.

[00:17:34] Speaker 03:
I mean, you suggest that once you're within the, because it allows you to set a maximum limit of age for an original appointment, if you decide not to apply that at the first time, you are outside of 3307B?

[00:17:50] Speaker 04:
I would answer it this way, that the

[00:17:52] Speaker 04:
The authority is to set a maximum entry age and with that the conditions were set because this was an exception to that.

[00:18:00] Speaker 03:
What was the maximum limit of age that was set by the agency in the RMC program?

[00:18:07] Speaker 04:
There is no maximum entry age for entry into the RMC program.

[00:18:10] Speaker 04:
That is waived.

[00:18:12] Speaker 04:
For traditional appointments, it is 31.

[00:18:15] Speaker 04:
Traditional original appointments.

[00:18:16] Speaker 04:
Traditional original appointments.

[00:18:18] Speaker 04:
You've just said this isn't an original appointment.

[00:18:20] Speaker 04:
Correct.

[00:18:21] Speaker 04:
Correct.

[00:18:21] Speaker 04:
So the issue here is there's no claim that the agency is saying that you need to be a certain age to get these promotional opportunities.

[00:18:29] Speaker 04:
The court doesn't need to decide that.

[00:18:31] Speaker 04:
Mr. Arnett was ineligible for these appointments because of the conditions of his original appointment.

[00:18:41] Speaker 02:
What's your authority on this?

[00:18:45] Speaker 02:
I asked that of your friend across the aisle, so I'd like to know your best authority to suggest that the RMC policies are also exempt from the ADA.

[00:18:56] Speaker 04:
Yeah, because it is just an exception that they are creating to the maximum entry age.

[00:19:01] Speaker 04:
If the agency can set a maximum entry age, they should be able to grant policy-based exceptions to enable other people to enter in, notwithstanding their maximum entry age.

[00:19:12] Speaker 04:
Surely plaintiff is not going to argue that he shouldn't have been allowed to be appointed in the first place for not meeting the maximum entry age.

[00:19:19] Speaker 02:
So the agency has carte blanche to implement age discrimination policies.

[00:19:25] Speaker 02:
I guess I'm just trying to figure out your best case for the notion that employment policies that create exceptions to age limits are also exempt from the ADA.

[00:19:36] Speaker 04:
Well, Your Honor, the answer to that is that it's not creating, it's not the exceptions, the act of promotion, the act of applying and the act of determining his eligibility was not subject to an age restriction.

[00:19:52] Speaker 04:
It was because of his original appointment

[00:19:54] Speaker 04:
Going back to the maximum entry age and the mandatory retirement age, they are connected for the retirement purposes, for the years of service needed to retire.

[00:20:03] Speaker 03:
Those are good policy arguments, but those policies were reduced to the text that Congress enacted in 3307B.

[00:20:14] Speaker 03:
I'm glad, I don't think we should spend much time on the McDonnell Douglas framework, but with respect to the, I mean, do not the policies that deal with the 31st birthdays, those facially discriminate based on age, I think, which was Chief Judge Murguia's question.

[00:20:30] Speaker 03:
Do you concede that those are age discriminatory if they don't fall under 3307B?

[00:20:35] Speaker 04:
That if they do not, and what we're saying is that there is no policy that limited his appointment

[00:20:41] Speaker 04:
to these promotions based on his age.

[00:20:43] Speaker 04:
That is not the argument that we're making.

[00:20:45] Speaker 04:
It's because he had a temporary appointment under his original conditions of appointment.

[00:20:50] Speaker 04:
Because of his age?

[00:20:52] Speaker 04:
Well, because he was in the RMC program beyond the age limitations that Congress authorized.

[00:20:58] Speaker 04:
So he was outside of those structures, outside of the limits that Congress allowed the agency to set.

[00:21:05] Speaker 04:
And this was an optional extension of that authority that

[00:21:09] Speaker 04:
the agency had the discretion to create.

[00:21:11] Speaker 03:
What else could the agency, I try to understand the implications of this argument, what other ways can the agency classify employees and disqualify employees for promotions based on age as long as it allows them in past the original employment time?

[00:21:32] Speaker 04:
Well, I don't know the hypothetical scenarios in this case, but the idea here is that in order to maximum and to meet the retirement requirements and build up enough of a retirement and to allow someone to become a permanent covered employee, you need to have entered at a certain age.

[00:21:52] Speaker 04:
And if you're going to waive that requirement, then the agency is faced with the situation of saying, well, you can't make someone a permanent employee.

[00:22:00] Speaker 04:
when they have not entered at a certain age to build up that retirement.

[00:22:04] Speaker 03:
Well, those are all great policy arguments, but if any other employer did it, they would be covered by the ADA.

[00:22:11] Speaker 03:
That would be age discrimination.

[00:22:12] Speaker 03:
That's not an excuse for age discrimination.

[00:22:15] Speaker 04:
And it isn't.

[00:22:16] Speaker 04:
And in this case, I would just go back to the issue that at the time he was seeking these promotional opportunities,

[00:22:24] Speaker 04:
Uh, it was not an age requirement.

[00:22:26] Speaker 04:
It was because of his original appointment.

[00:22:28] Speaker 02:
The only time age factor is no longer in place now.

[00:22:32] Speaker 04:
So the history of the policy was that from 2000 to 2015, there was the RMC program, which allowed him to enter service and receive, uh, these positions in 2015, the policy was canceled, but they created a grandfathering positions, uh, provisions.

[00:22:51] Speaker 04:
And one of those was that if you leave your permanent covered position for a temporary non-controller, non-covered position, you lost your RMC status.

[00:23:02] Speaker 04:
And that's exactly what happened a month after this policy was changed.

[00:23:06] Speaker 04:
Plaintiff left that position for a non-covered appointment, a permanent

[00:23:10] Speaker 04:
non-covered employment.

[00:23:11] Speaker 04:
The plaintiff has characterized that as saying, well, he's already a permanent employee.

[00:23:15] Speaker 02:
In 2018, you went back to the policy?

[00:23:18] Speaker 04:
Exactly.

[00:23:18] Speaker 04:
The agency readopted the policy in 2018, and since then, Mr. Arnett has enjoyed a series of promotions as well.

[00:23:28] Speaker 03:
I agree in terms of trying to find the best, the agency's own definition of what an original appointment is for these purposes.

[00:23:36] Speaker 03:
Do you agree that we'd find it there at EMP 1.20?

[00:23:40] Speaker 04:
Yes, specifically, and I would say 1.20 Section 4A when it refers to the initial hire as a FAA controller.

[00:23:50] Speaker 04:
It's not the first time you enter the FAA as an employee.

[00:23:54] Speaker 04:
It would be the first time you enter as an air traffic controller.

[00:23:57] Speaker 04:
Because remember, this is a covered position.

[00:23:59] Speaker 04:
It is covered under the special retirement program.

[00:24:03] Speaker 04:
And so it is when you enter into that special abbreviated program that the rest of the federal employees are not, do not enjoy.

[00:24:10] Speaker 02:
Let me ask you, or try to ask you the same question that I asked Ms.

[00:24:14] Speaker 02:
Salton.

[00:24:15] Speaker 02:
Because I'm trying to understand how the RMCs were treated differently from air traffic controllers hired outside of the RMC program, right?

[00:24:25] Speaker 02:
And I'm curious about the policy for RMC hires.

[00:24:31] Speaker 02:
So let's say you have a 29-year-old applicant who is hired as an air traffic controller.

[00:24:37] Speaker 02:
Can that person move freely between covered and non-covered positions after their 31st birth

[00:24:44] Speaker 04:
Yes, because they received permanent covered appointments as air traffic controllers under the age of 31, which Congress allowed the agency to set an age limit on.

[00:24:57] Speaker 04:
After that, after the age of 31, the agency is free to not hire them.

[00:25:04] Speaker 04:
It is free to, under the covered policy and the statute,

[00:25:11] Speaker 04:
to set that age.

[00:25:12] Speaker 04:
So after that age, you require a special appointing authority, and with that special appointing authority, special conditions of appointment applied.

[00:25:21] Speaker 02:
Have you all discussed mediation at all?

[00:25:26] Speaker 04:
That was a discussion earlier.

[00:25:27] Speaker 04:
Yes, your honor.

[00:25:29] Speaker 04:
So is it worth sending you to mediation?

[00:25:32] Speaker 04:
Well, your honor, even if the court believes that, and that is something that can be considered, but even if the court believes

[00:25:39] Speaker 04:
that the ADEA applies.

[00:25:41] Speaker 04:
Plaintiff has not established a prima facie case and has not proven that this was a pretext for discrimination.

[00:25:47] Speaker 03:
Well, if it's not covered by 3307, why isn't the fact that you're treating employees who enter before 31 and those who enter after 31 differently, not just prima facie, the end of the ballgame?

[00:26:02] Speaker 04:
Well, because

[00:26:04] Speaker 04:
If it's not covered by, if the agents, if the court believes that it could be subject to ADEA policies and then it applies the McDonnell Douglas factors.

[00:26:13] Speaker 02:
Why would we apply the McDonnell Douglas factors?

[00:26:16] Speaker 02:
Because that applies in circumstantial cases.

[00:26:18] Speaker 02:
This is a direct evidence case.

[00:26:20] Speaker 02:
Nobody disputes that it was age as to why he, the reason was age because he wasn't hired.

[00:26:26] Speaker 04:
Well, Your Honor, we do dispute that it was age as to why it was required.

[00:26:30] Speaker 04:
It was not his age.

[00:26:32] Speaker 04:
The only time age was an issue was in his original appointment.

[00:26:35] Speaker 04:
That was the only time age was an issue.

[00:26:37] Speaker 04:
And far from being discriminatory, the RMC program enabled him to enter service.

[00:26:43] Speaker 04:
And part of that program, because it goes around this idea of having a set retirement or a set time of service from the time of early entry into mandatory retirement,

[00:26:56] Speaker 04:
those positions could only be temporary and time limited.

[00:26:59] Speaker 03:
This was a condition of that original appointment.

[00:27:05] Speaker 03:
Where's the best place for us to go to understand the agency's rationale or policy?

[00:27:11] Speaker 03:
Where is it reflected, not just what the policy is, but where its reasons are grounded for drawing these distinctions?

[00:27:19] Speaker 03:
You talk about the retirement system, but can we find that somewhere?

[00:27:22] Speaker 03:
Has Congress authorized that outside of 3307B?

[00:27:25] Speaker 04:
Well, yes, Your Honor.

[00:27:29] Speaker 04:
If you look to the authority under

[00:27:34] Speaker 04:
Not only the more recent reenactment of the policy under 49, section 44.506, which says that the agency may create a program like the RMC and may waive those waivers.

[00:27:50] Speaker 04:
Going back to the original congressional intent of the 3307B was that it is important to have a limit on age of entry that is related to mandatory retirement.

[00:28:02] Speaker 04:
So persons entering the occupations can be provided a full career.

[00:28:08] Speaker 04:
And if you're going to waive the maximum entry age, you can't give them a permanent appointment because then if somebody comes in at the age of 51, which would be allowed under the RMC program,

[00:28:20] Speaker 04:
and they need 20 years to build up a full retirement, they're not going to be able to retire until the age of 71.

[00:28:27] Speaker 04:
And that is the reason why the RMC program had those special conditions of appointment, that they're temporary and time limited.

[00:28:36] Speaker 04:
If the court believes that the ADA still applies, then we're saying, well, what was the reason for this policy?

[00:28:41] Speaker 04:
We didn't have a discriminatory animus.

[00:28:43] Speaker 04:
And it didn't.

[00:28:44] Speaker 04:
It had a policy basis.

[00:28:46] Speaker 03:
I guess this may be, if you don't know, this is fine.

[00:28:49] Speaker 03:
But do you have any, we're searching a little bit to try to understand how the original appointment language in the rest of 3307 has worked.

[00:28:57] Speaker 03:
Do you know anything about how these other agencies apply the language?

[00:29:02] Speaker 03:
Or has your agency, your client,

[00:29:06] Speaker 03:
Canvass that at all?

[00:29:09] Speaker 04:
I don't believe that that information is in the record as to what other agencies have done, but this is a fairly unique circumstance.

[00:29:17] Speaker 04:
Mr. Arnett is the only employee in the record that anyone is aware of that was denied eligibility based on his very unique circumstances dating back to the conditions of his original appointment.

[00:29:33] Speaker 04:
And to that, I would just say that the ability to set a maximum entry age is also the ability to set exceptions to that based on very good policy reasons.

[00:29:43] Speaker 04:
And to do that and to provide people opportunities would not be discriminatory.

[00:29:48] Speaker 04:
It would be actually enabling someone with an opportunity in the first place.

[00:29:53] Speaker 02:
He's the only employee.

[00:29:55] Speaker 04:
He is the only employee of the agency.

[00:29:57] Speaker 04:
There are many air traffic controllers around the nation.

[00:30:01] Speaker 02:
No, no, no, no.

[00:30:01] Speaker 02:
I understand what you just described right now.

[00:30:03] Speaker 02:
fallen into this sort of predicament.

[00:30:07] Speaker 02:
And you're not open to mediation?

[00:30:11] Speaker 04:
Well, Your Honor, that is possible.

[00:30:13] Speaker 04:
But to say mediation, the agency firmly believes that it was right for it to create an RMC program in the first place to give them the opportunity.

[00:30:24] Speaker 04:
And that was discretionary.

[00:30:25] Speaker 04:
And it had its policy reasons for rescinding the program temporarily for three years.

[00:30:32] Speaker 02:
That's all.

[00:30:32] Speaker 02:
Well and good.

[00:30:33] Speaker 02:
I'm just still kind of puzzled by the posture right now.

[00:30:39] Speaker 02:
But thank you.

[00:30:41] Speaker 02:
Do you have any concluding statement?

[00:30:43] Speaker 04:
Yes, Your Honor.

[00:30:43] Speaker 04:
With respect to the McDonnell Douglas factors, the parties briefed statewide the plaintiff did not state a prima facie case, as well as the

[00:30:57] Speaker 04:
show discriminatory pretext.

[00:30:59] Speaker 04:
Plaintiff's complaint, I would add that plaintiff's complaint is limited to the issue of saying that the RMC program creates this negative label on employees and that the hiring officials and the agencies specifically discriminated against him because they intentionally discriminated against him because he was an RMC employee.

[00:31:19] Speaker 04:
That is not supported by the record.

[00:31:21] Speaker 04:
Your Honor, in addition to that, plaintiff did not plead a disparate impact claim.

[00:31:27] Speaker 04:
plaintiff pled disparate treatment.

[00:31:31] Speaker 04:
There's nothing of that in the record.

[00:31:33] Speaker 04:
In addition, plaintiff would have to establish under a disparate treatment claim or disparate impact claim that substantial statistical evidence shows that it had a substantial impact on people of his class, outside of his class, and that clearly is not the case in the record.

[00:31:53] Speaker 04:
There are no further questions.

[00:31:54] Speaker 04:
We ask the court to affirm.

[00:32:00] Speaker 00:
Thank you.

[00:32:01] Speaker 00:
If I could just make certain that the record is very clear.

[00:32:05] Speaker 00:
At the time that Mr. Arnett applied for all three temporary and permanent positions, the RMC program did not exist.

[00:32:16] Speaker 00:
It had been canceled.

[00:32:17] Speaker 00:
He was a permanent employee working on the administrative side of things.

[00:32:27] Speaker 00:
When he applied for the temporary position, it was a one-year position.

[00:32:33] Speaker 00:
If he had worked the position, let's say he was 53 years old at that time, he had worked the position for one year, he would have been 54 by the time the temporary position ended.

[00:32:46] Speaker 00:
He still would not have yet been age 56.

[00:32:49] Speaker 00:
The record is replete with evidence showing that the agency was

[00:32:57] Speaker 00:
looking at age as the major factor.

[00:33:00] Speaker 00:
For example, when you look at ER 66 lines one through six, Ms.

[00:33:07] Speaker 00:
Dixon testifies that Mr. Arnett could have held that temporary position until age 56, but they still are saying, even though we don't have an RMC program, he's not in the program, there is no program, they're still saying, even though you're fully qualified, you're ineligible.

[00:33:27] Speaker 00:
So thank you for this opportunity.

[00:33:30] Speaker 02:
Thank you both very much, Ms.

[00:33:32] Speaker 02:
Salton, Mr. Litton.

[00:33:33] Speaker 02:
It looks like you both traveled the furthest to be here today.

[00:33:37] Speaker 02:
You're from Tucson, Mr. Litton.

[00:33:38] Speaker 02:
But Ms.

[00:33:39] Speaker 02:
Salton, you're here from Milwaukee.

[00:33:41] Speaker 02:
We wish you safe travels back.

[00:33:42] Speaker 02:
And again, thank you for your oral argument presentations here.

[00:33:45] Speaker 02:
The case of Brian Allen Arnett versus Pete Buttigieg is now submitted.

[00:33:51] Speaker 02:
The last case on our docket, Kenneth Cooper versus Window Rock Unified School District

[00:33:56] Speaker 02:
has been submitted on the briefs and that concludes our calendar for today.

[00:34:03] Speaker 02:
So we are adjourned.

[00:34:04] Speaker 02:
Thank you.