Appeal of "Patently Unfair" Job Requirement is a Loser in Court

By on August 15, 2008 in Court Cases, Current Events with 0 Comments

An Air Force Air Traffic Control specialist fired for failing to maintain a certification required by the agency has failed in his bid to overturn the action. (Thompson v. Department of the Air Force, C.A.F.C. No. 2008-3201 (nonprecedential), 8/12/08)

Thompson was required by Air Force instructions to keep his Air Traffic Control Specialist (ATCS) certificate. On appeal to the Merit Systems Protection Board, he did not contest that he had lost his ATCS certification. Instead he attacked the certification requirement. He maintained that the ATCS requirement was wrongly applied to his position. He argued he should be required to have an Air Traffic Control Tower Operator certificate (CTO) and not the ATCS certification. Requiring him to have the ATCS certification was “in bad faith and patently unfair.” (Opinion p. 2)

The Air Force demonstrated to the Board’s satisfaction that it had authority to impose requirements in addition to those imposed by the Federal Aviation Administration, and that it had properly imposed the ATCS requirement. The Board disagreed with Thompson’s argument and upheld his removal. (p. 2)

On appeal to the Federal Circuit Court of Appeals, Thompson has not fared any better. In sustaining the Board’s ruling, the court pointed out that the Air Force was within its authority as granted to it by the Federal Aviation Administration to add extra requirements to its air traffic control personnel. The agency requires ATCS certification for Thompson’s position. He lost the certification. He stays fired. (pp. 2-3)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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