Judge Grants Motion to Amend CTI Discrimination Lawsuit, Denies FAA’s Motion to Strike

The Association of Collegiate Training Institutions (ACTI) is pleased to announce that a judge has granted a motion allowing the CTI discrimination lawsuit to proceed.  The lawsuit challenges the Federal Aviation Administration’s decision to purge over 2,600 well qualified air traffic control Collegiate Training Initiative (CTI) graduates from a hiring list for diversity reasons.

After an unsuccessful attempt to obtain class certification, a Motion to Amend the Complaint was filed in April.  The government opposed this, and attempted to get rid of any potential for a class action. On October 12th, Judge Dabney Friedrich of the U.S. District Court for the District of Columbia granted the motion to amend and has rejected many of the FAA’s arguments.

The Court has now ruled in favor of the Plaintiff. This means the lawsuit will continue to proceed, including the allegations of discrimination from the FAA’s purge of the CTI list in 2014 as well as the use of the biographical test the FAA used to select individuals. The Court found that the Plaintiff “has alleged sufficient facts to satisfy the intentional discrimination element of his hiring preference claim. …Together, these concrete, plausible allegations suggest that there is “something ‘fishy’ about the facts of the case at hand that raises an inference of discrimination.”

 The next step is to file another amended complaint addressing specific items on which the judge has agreed with the FAA. The judge is also requiring additional briefing concerning whether individuals who had just taken the AT-SAT are “applicants” within the meaning of the Civil Rights Act. The Court has also paved the way for pre-certification discovery – which would allow the ability to obtain documents from the FAA to be used against it in the process of getting class certification. In doing so, the Court rejected many arguments advanced by the agency in its attempt to stop the class from being certified.

We anticipate that it will continue to be a long road for this lawsuit, but this is a major step forward to making CTI students who have not been hired by the FAA despite applying under the new process “whole.”

ACTI continues to advocate for students and graduates of CTI programs in Congress and the judicial system. ACTI has worked with Congress to pass changes to the air traffic control hiring law, including prohibiting the FAA from using the biographical assessment to hire CTI students. Earlier this year, ACTI worked with Congress to grant guaranteed preference to CTI graduates. CTI programs contain students of diverse backgrounds and experiences, and attempts to engage in a social science diversity experiment will continue to be challenged.

The lawsuit, Brigida v. Chao, 16-2227, is filed in the U.S. District Court for the District of Columbia, and is not yet a class action. Class action status, as well as who will be a member of any potential future class, is to be determined. Michael W. Pearson, of Curry, Pearson & Wooten, PLC located in Phoenix, Arizona and co-counsel Mountain States Legal Foundation of Denver, Colorado represent Plaintiffs.

Lawsuit Challenging 2014 Hiring Changes Certified as a Class

The Association of Collegiate Training Institutions (“ACTI”) is pleased to announce that the lawsuit challenging the Federal Aviation Administration’s Air Traffic Controller hiring changes in 2014 is now a class action.

ACTI has worked with legal counsel Michael Pearson and co-counsel Mountain States Legal Foundation to litigate the case and seek justice for the thousands of FAA approved Collegiate Training Initiative (“CTI”) graduates who finished two-year and four-year programs at colleges to become Air Traffic Controllers, who then had those dreams squashed when the FAA purged them from the hiring lists in the name of “diversity.”

The case now proceeds to the merits of whether discrimination took place in the FAA’s actions. The class action would cover the non-African American CTI graduates who: (1) by February 10, 2014: (a) graduated from a CTI program at one of the 36 FAA-partnered CTI Institutions between 2009-2013 and (b) passed the AT-SAT; (2) applied to be an ATCS trainee through the 2014 All Sources vacancy announcement but failed the Biographical Questionnaire that was incorporated into the 2014 ATCS hiring process and was therefore not hired; and (3) have never been offered employment as an FAA ATCS.

A video press release made by co-counsel in the case, Zhonette M. Brown, is available https://www.youtube.com/watch?v=Y5XNWNhYB1c, along with a press release available at https://mslegal.org/press-releases/case-against-racially-biased-faa-hiring-practices-cleared-for-takeoff-as-a-class-action/.



Appellate Court Rules in FOIA Case Concerning FAA Hiring Changes, finds potential for government impropriety

The Ninth Circuit Court of Appeals recently ruled in Rojas v. Fed. Aviation Admin., No. 17-17349, 2019 WL 5382055 (9th Cir. Oct. 22, 2019), another Freedom of Information (FOIA) case brought against the Federal Aviation Administration (FAA). This case regards records sought that will shed light on the FAA, and several FAA employees, alleged misconduct in the testing and employment of prospective air traffic controller applicants. The Association of Collegiate Training Institutions (ACTI) applauds the transparency this case will bring concerning the FAAs drastic changes to the hiring process for Air Traffic Control Specialists, and the misconduct allegations concerning FAA employees involved in the process.

The Court, deciding the case initiated in 2015, ruled in favor of the Plaintiff, reversing the Arizona District Court decision with respect to two issues, and ruled in favor of the FAA, affirming the District Court with respect to another issue. The Court remanded the case back to the trial court for further proceedings.

At issue was whether the FAA could shield the identity of FAA employees using their personal email addresses to conduct communications. Shelton Snow, an FAA employee and member of the National Black Coalition of Federal Aviation Employees (NBCFAE), told select applicants backed by the NBCFAE during the 2014 hiring process he [Snow] was “about 99 point 99 percent sure that it is exactly how you need to answer each question [on the Biographical Assessment] in order to get through the first phase” in a recorded voicemail to select applicants, and that [FAA]  “HR Representatives” could “sign off on [the Biographical Assessment] before [select applicants] actually click it.”

The three judge panel found that “a reasonable person would believe that the alleged Government impropriety might have occurred in the FAA’s decision to change its hiring practices.”

The Court further found that “At least two of the redacted documents produced under seal indicated that FAA employees sent emails relating to FAA’s changes to its hiring system to other FAA employees at their personal email addresses.” The Court held although “this issue is quite close, FOIA’s strong presumption in favor of disclosure leads us to conclude that where FAA employees used personal email addresses to receive information relating to the FAA’s change in selecting air traffic controllers, Rojas has carried his burden of showing that the FAA employees’ privacy interest in their personal email addresses is outweighed by the robust interest of citizens’ right to know what their government is up to in making the changes it did.”

In a separate issue, the Court held that the agency could not withhold documents solely on the basis that the documents related to Mr. Snow’s role within the NBCFAE or membership in a union.

The Court further held it had “no trouble concluding that the FAA possessed the withheld materials, because they were discovered in the FAA’s computer system” and that it’s “independent review suggests that some of the withheld documents were not purely personal.” “If the FAA communicates or works with the NBCFAE or the NATCA in the conduct of its official duties or public business, for instance, then such communications could be in the FAA’s control” and the records must be disclosed. The District Court must now apply the newly defined factors in determining whether these records are subject to release.

Also at issue was whether the agency could withhold the 2015 Biographical exam score from applicants for ATC positions. The FAA has had a long standing practice of disclosing to applicants scores for employment exams, pilot exams, etc. Beginning with the 2014 implementation of the biographical exam, which the Court noted has “generated significant press attention,” and “captured the attention of legislators and public officials.” The court held that the score on the assessment was properly withheld by the FAA. The scoring key of the 2014 assessment has been previously released pursuant to another court order. The FAA has since discontinued the use of the Biographical Assessment.

Earlier this year, the Ninth Circuit ruled against the FAA in Rojas v. Fed. Aviation Admin., 927 F.3d 1046 (9th Cir. 2019), finding that the FAA cannot withhold documents between itself and the contractor that developed the Biographical Assessment. The FAA is attempting to appeal that decision. Two other cases, seeking class-action status, brought by parties under the Civil Rights Act and alleging intentional discrimination based upon race, are currently pending before the District Court of Columbia.

Attorney Michael Pearson, of Curry, Pearson & Wooten, Phoenix, AZ, represents the Plaintiff, Jorge Rojas, as well as additional parties in the two pending class action cases against the FAA.

A copy of the Court’s unanimous opinion is available here.

Appellate Court Orders Release of 2015 FAA Biographical Assessment Validation Documents

The Association of Collegiate Training Institutions is pleased to announce that the Ninth Circuit Court of Appeals has ruled that the Federal Aviation Administration’s withholding of the documents used to validate the 2015 Biographical Assessment used when hiring Air Traffic Control Specialists was illegal. The FAA will be forced to release these documents to the public under the Freedom of Information Act.

Today’s decision in Rojas v. FAA reverses a 2016 District Court decision that allowed the FAA to hide documents that justified the use of the 2015 Biographical Assessment. The documents, as described by the FAA, describe the development and the validation process of the test. The exam, developed by APTMetrics, was introduced in 2014 when the FAA changed its long-standing hiring process to hire air traffic controllers. The 2014 test became the subject of public scrutiny and outrage after many that had previously attended school to become air traffic controllers under the FAA’s previous hiring process were told they were “not qualified” because of the results of the test. The FAA changed the test several times and ultimately discontinued its use in 2017 following the disclosure of the answer key from the 2014 test. The answer key showed that the FAA awarded more points for being unemployed than having aviation experience. 

The documents at issue, in this case, will shine some light as to the basis for why the FAA and APT Metrics chose the answers that it did for the test. The FAA had a long-standing practice of releasing validation studies for the previous test used to hire air traffic controllers, the AT-SAT. The Court noted that “[D]isclosure, not secrecy, is the dominant objective” of the Freedom of Information Act.

The decision requires the FAA to release the nine pages of validation “summaries” that it received from APT Metrics. The decision also finds that the FAA did not perform an adequate search for documents concerning the validation of the test, mainly because the agency only produced what it considered to be “summaries” and not the actual validation. Judge Molloy, writing for the majority of a three-judge panel, wrote, “[b]ut summaries by necessity summarize something else; there is no indication that there was any search conducted for underlying documents.” The Court rejected the FAA’s claim that documents made by a contractor can be exempt under one of the FOIA exemptions, noting “[b]ecause the consultant corollary is contrary to Exemption 5’s text and FOIA’s purpose to require broad disclosure, we decline to do so.”

The FAA, which has attempted to hide these documents from the public since the changes to the hiring process in 2014, is now forced to release them. Today’s decision allows the public to check the FAA’s actions and will help paint a better picture of what was going on in the FAA when the changes were made.

Michael Pearson, of Curry, Pearson & Wooten, who also represents individuals impacted by the FAA’s hiring process and use of the Biotest, was counsel in this case. The Ninth Circuit’s decision is available here.


Federal Aviation Administration Sued For Using Biographical Questionnaire That Illegally Screened Air Traffic Controller Applicants Based On Race

The Association of Collegiate Training Institutions announces a new lawsuit against the Federal Aviation Administration, alleging that the 2014 Biographical Assesement was never properly validated and was used to illegally eliminate the most qualified applicants based upon race.

Dallas, Texas ‐ September 24, 2018 – A lawsuit was filed in Texas District Court on behalf of Plaintiff Lucas Johnson, and potentially over 28,000 other air traffic controller applicants, who were required to take a biographical assessment as part of the initial application process. The class action lawsuit alleges that the February 2014 air traffic controller applicant biographical assessment was never properly validated and was used to illegally eliminate the most qualified applicants based upon race. The suit alleges that the FAA played racial politics and worked with the National Black Coalition of Federal Aviation Employees, a FAA special interest group, to intentionally disadvantage applicants based on race – such as Hispanic, Asian, and Caucasian applicants.

The suit alleges that the FAA ignored qualified veterans, college graduates with aviation degrees in air traffic control, pilots, and other applicants with substantial aviation experience in a time of extreme need. In short, diversity and the agenda of a radical special interest group were placed above the wellbeing of the national airspace system and public safety. The suit further alleges that the non‐validated biographical assessment was specifically designed to favor those who performed poorly in science, had not been employed for over three years prior to taking the exam, and who lacked aviation experience and penalize those who had prior military, aviation, air traffic control, or college aviation experience.

“This lawsuit seeks to expose the radical actions of the FAA in illegally eliminating the best qualified air traffic controller applicants due to their race. Thousands of pilots, military veterans, and those with significant aviation skill and knowledge were forced take an examination that actually penalized those with experience” said Michael Pearson of Curry, Pearson & Wooten, PLC, the lead attorney on the case. Mr. Pearson is working with King Blair, PC, who is local counsel in the matter.

Plaintiff Lucas Johnson, a college graduate with two aviation related degrees as well as significant aviation work experience, is one of over twenty‐eight thousand applicants who took the biographical assessment and expected a fair application process. Instead Mr. Johnson, and thousands of others, was forced to participate in a rigged system deliberately infected with racial bias. The lawsuit asks the U.S. District Court to provide a fair playing filed for all those who took the 2014 biographical assessment and failed to pass.

“The federal employment process is supposed to be open and fair. Not only were the FAA’s actions illegal and done with a cloak of secrecy, they frustrate the will of Congress and are contrary to our fundamental system of fairness and justice” said Mr. Pearson.

Curry, Person & Wooten, PLC, along with co‐counsel Mountain States Legal Foundation, also sued the FAA in 2014 for illegally eliminating the air traffic control applicant register comprised of approximately 2,500 to 3,000 college graduates of 36 AT‐CTI programs.

Those who applied to be an air traffic controller in February of 2014 and failed the biographical assessment are urged to visit www.faadiscrimination.com, which will be online in early October 2018, for further information.

Federal District Court Reverses Dismissal of CTI Discrimination Lawsuit

The Association of Collegiate Training Institutions is pleased to announce that a federal Court has reversed a previous Court decision dismissing portions of the CTI discrimination suit. The lawsuit will now proceed. 

The U.S. District Court for the District of Columbia has ruled in favor of the Plaintiff (a CTI graduate) in the case that challenges the Federal Aviation Administration’s (FAA) changes to the hiring process for air traffic control specialists. Those changes, implemented in 2014, caused approximately 2,000-3,000 qualified graduates from Collegiate Training Institutions who had taken the exam to become part of the hiring pool to be dropped from the list.

The lawsuit, filed in the District of Arizona in 2015, was partially dismissed and transferred to D.C. The CTI student then sought reconsideration of the Court’s decision. Today’s ruling reverses that dismissal. The Court ruled that there was a clear error of law to dismiss part of the lawsuit.

The next step is for the Department of Transportation to “answer” the lawsuit within the next 21 days, by admitting or denying the facts asserted by the Plaintiff.

The case, which has not been certified as a class action yet, proposes to include those who were impacted by the changes to the hiring process.

We are pleased that the FAA’s actions which not only have threatened air safety but also undermined the education which many thousands of qualified individuals will now proceed to the merits of the case.

ACTI Begins Submitting Freedom of Information Act Requests

ACTI announces that it has begun submitting Freedom of Information Act (FOIA) requests to the Federal Aviation Administration (FAA). ACTI will submit requests for the purpose of gathering more information concerning the hiring process, the previous process, the changes, and the results. ACTI will use the information gathered to research the changes and the results and publish its findings based on the raw data received from the FAA.

Our first FOIA request was submitted Friday, February 10, 2017. We requested a fee waiver for academic and public interest purposes. As of February 17, FAA has not acknowledged our request.

Although ACTIs goal is to obtain the information through the administrative process, ACTI may pursue litigation against FAA for future failures to comply with the Act.