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Appeals Court Ruling Starts Clock Ticking on Illegal Privatization Scheme - (2/11/2002)

WASHINGTON – For the third time in the National Air Traffic Controllers Association’s eight-year legal effort to put control of privately managed air traffic control towers back in the government’s hands, an appeals court has ordered the Federal Aviation Administration to prove why its actions are not illegal.

The 6th U.S. Circuit Court of Appeals stated, “NATCA’s evident frustration with the shifting position of the FAA regarding the privatization scheme is understandable.” The circuit judges emphasized their growing impatience with the FAA, ordering the agency to file a status report within 30-days, and directed the district court to “set a reasonable time limit on the production of the final A-76 study.” Office of Management and Budget Circular A-76 requires administrative agencies to retain control over duties that are “inherently governmental functions.”

NATCA has long maintained air traffic control is inherently governmental and a Dec. 7, 2000 Executive Order upholds this position. In the original case brought by NATCA, the district court held the FAA had in fact violated the requirements of A-76 when it privatized air traffic control operations at approximately 130 small airports across the country. A resulting FAA study prompted NATCA to file a second action, alleging the FAA failed to follow the district court’s mandate. The same district judge ruled the study was insufficient and again remanded the case to the FAA for further study, setting the stage for a third round of hearings.

“The bottom line is the FAA is quickly running out of ways to avoid having to surrender its foolish privatization scheme and we are delighted the circuit judges have the FAA in hot pursuit,” NATCA President John Carr said. “I’m not sure what part of ‘inherently governmental’ the FAA doesn’t understand but we anxiously await the day when these towers will find their rightful place under the safe, secure and seamless umbrella that is the government-run air traffic control system.”

In their judgment, the circuit judges stated, “As did the district judge, we emphasize the pressing need for the agency to complete a full A-76 analysis, including air towers that handle limited instruments flight rating air traffic, as well as documented justification for any decision to continue with privatization.” The judges gave the FAA the 30-day deadline for filing a status report “because the order to comply with A-76 has now been pending for almost two years, without evident results.”

“This decision strengthens our contention that the FAA’s actions are illegal and we do not believe the agency will be able to prove otherwise before its looming deadline,” Carr said.


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