2:15-CV-05811 Response to MSJ

8/18/2019 2:15-CV-05811 Response to MSJ

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ttorneys at Law

814 W. RooseveltPhoenix, Arizona 85007

(602) 258-1000 Fax (602) 523-9000

Michael W. Pearson, AZ SBN [email protected]@azlaw.comAdmitted Pro Hac Vice Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Jorge Alejandro Rojas,

Plaintiff,

vs.

Federal Aviation Administration,

Defendant.

Case No. CV15-5811-CBM (SSx)

PLAINTIFF’S RESPONSE TODEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

HearingDate: May 10, 2016Time: 10 a.m.

(Before the Honorable Consuelo B.Marshall)

1. TABLE OF CONTENTS

2. TABLE OF AUTHORITIES

3. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF SAME

/ / /

Case 2:15-cv-05811-CBM-SS Document 26 Filed 04/25/16 Page 1 of 23 Page ID #:167


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C u r r y , P e a r s o n & W o o t e n , P L C

8 1 4 W .

R o o s e v e l t S t r e e t

P h o e n i x ,

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................

II. PROCEDURAL HISTORY .................................................................................

III. LEGAL ARGUMENT ..........................................................................................B. ASSUMING NO DISPUTE OF MATERIAL FACTS, THE FAA IS NOT E NTITLED TO

SUMMARY JUDGMENT AS A MATTER OF LAW ........................................................... 1

1. The validation study and summary show no merit of being privileged ......... 1

(a) The validation study and the summary do not meet the elements of

privilege ...................................................................................................... 1

(i) The Validation Study and the Summary merely reveal facts, which

are not protected under privilege ........................................................... 1

(ii) There is a lack of litigation needed for the FAA to anticipate inrelation to the study and the summary .................................................... 1

(iii) The Study and the Summary were not prepared in anticipation of

litigation .................................................................................................. 1

(b) Substantial need/undue hardship and balancing of interests overcome

privilege ...................................................................................................... 1

(c) Even assuming the study and summary are covered by privilege, the

FAA waived that privilege ......................................................................... 2

2. The Validation Study and Summary Are Not Privileged ............................... 2(a) APT Metrics is not an attorney capable of providing legal advice ..... 2

IV. CONCLUSION ................................................................................................... 2



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TABLE OF AUTHORITIES

CASES

Bairnco Corp. Sec. Litig. V. Keene Corp., 148 F.R.D. 91 (S.D.N.Y. 1993) ............... 1

California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 299 F.R.D.

638 (E.D. Cal. 2014) ................................................................................................ 1Coastal Corp. v. Duncan, 86 F.R.D. 514 (D. Del. 1980) ............................................ 1

Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, 259 F.31186 (9th Cir. 2001) ................................................................................................. 2

Exxon Corp. v. FTC , 466 F. Supp. 1088 (D.D.C. 1978), aff'd, 663 F.2d 120 (D.C. Cir1980) ......................................................................................................................... 1

Garcia v. City of El Centro, 214 F.R.D. 587 (S.D. Cal. 2003) ................................... 1

Hamdan v. U.S. Dept. of Justice, 797 F.3d 759 (9th Cir. 2015) ................................. 1

Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991) ............................ 1

Hickman v. Taylor , 329 U.S. 495 (1947)..................................................................... 1 In re Grand Jury Investigation, 599 F.2d 1224 (3rd Cir. 1979).................................. 1

In re Grand Jury Subpoena (Mark Torf/Torf Envtl Mgmt), 357 F.3d 900 (9th Cir.2003) ................................................................................................................... 12, 1

In re Green Grand Jury Proceedings, 492 F3d. 976 (8th Cir. 2007) .......................... 1

In re Jury Subpoenas, 318 F.3d 379 (2nd Cir. 2003) .................................................. 1

Kintera, Inc. v. Convio, Inc, 219 F.R.D. 503 (S.D. Cal. 2003) ................................... 2

Moody v. I.R.S., 654 F.2d 795 (D.C. Cir. 1981) .......................................................... 1

Nat'l Council of La Raza v. DOJ , 411 F.3d 350 (2d Cir. 2005) .................................. 2

Parrot v. Wilson, 707 F.2d 1262 (11th Cir. 1983) ...................................................... 1 Ramsey v. NYP Holdings, Inc., 2002 U.S. Dist. LEXIS 11728 (S.D.N.Y. 2002) ....... 1

S. Union Co. v. Southwest Gas Corp., 205 F.R.D. 542 (D. Ariz. 2002) ..................... 1

Tayler v. Travelers Ins. Co., 183 F.R.D. 67 (N.D.N.Y. 1998) .................................... 1

Texas Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867 (1st Cir.1995) ......................................................................................................................... 1

U.S. Department of State v. Ray, 502 U.S. 164 (1991) .................................................

U.S. v. Christensen, 801 F.3d 970 (9th Cir. 2015) ...................................................... 1

U.S. v. Fort , 472 F.3d. 1106 (9th Cir. 2007) ............................................................... 1

U.S. v. Nobles, 422 U.S. 225 (1975) ............................................................................ 1

U.S. v. Richey, 632 F.3d 559 (9th Cir. 2011) .................................................. 12, 15, 1

U.S. v. Textron Inc. and Subsidiaries, 577 F.3d 21 (1st Cir. 2009) ............................ 1

United States v. Aldman, 68 F.3d 1495 (2d Cir. 1995) ......................................... 12, 1

Upjohn Co. v. U.S., 449 U.S. 383 (1981) .................................................................... 1



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Verizon California Inc. v. Ronald A. Katz Technology Licensing, L.P., 266 F.Supp.2d1144 (C.D. Cal. 2003) .............................................................................................. 2

Yurick v. Liberty Mut. Ins. Co., 201 F.R.D. 465 (D. Ariz. 2001) ................................ 1

Zemansky v. EPA, 767 F.2d 569 (9th Cir. 1985) ......................................................... 1

STATUTES 41 CFR § 60-3.5 ............................................................................................................

41 CFR § 60-3.7 ............................................................................................................

42 U.S.C. § 2000e-2(h) ............................................................................................ 6, 1

RULES

Fed. R. Civ. P. 26(b)(3) ............................................................................................... 1

Fed. R. Civ. P. 56(a) ......................................................................................................

REGULATIONS

29 CFR § 1607.1 .......................................................................................................... 129 CFR § 1607.15 ..........................................................................................................

29 CFR § 1607.4(D) .................................................................................................... 1

OTHER AUTHORITIES

Black’s Law Dictionary, http://thelawdictionary.org/validation ...................................

http://www.siop.org/workplace/employment%20testing/information_to_consider_when_cre. aspx ................................................................................................................

https://www.opm.gov/policy-data-oversight/assessment-and-selection/other-assessment-methods/biographical-data-biodata-tests/ ...............................................

Merriam-Webster.com. Merriam-Webster, n.d. Web. 25 Apr. 2016 ............................

Restatement (Third) of the Law Governing Lawyers § 87 cmt. g (2000) ................... 1

Restatement (Third) of the Law Governing Lawyers § 87(1) (2000) ......................... 1



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The subject of this action is the disclosure of the 2015 validation study and an

related summaries, required to be completed pursuant to statute 1 and regulation

Validation is defined as “…to recognize, establish, or illustrate the worthiness o

legitimacy of .…”3 The Society for Industrial and Organizational Psychology, In

(SIOP) is cited on the United States Office of Personal Management (OPM) websi

regarding “bio-data” testing such as the BA.4 According to the SIOP, “…[e]xperience

and knowledgeable test publishers have (and are happy to provide) information on th

validity of their testing products….”5 Plaintiff is simply requesting what experience

and knowledgeable test publishers are usually “happy to provide.”

This case is about the FAA’s continued lack of institutional veracity and repeateimproper attempts at withholding documents that are clearly subject to release an

review. The FAA has failed to be upfront about the rationale or methodology of th

new screening and testing process. Therefore, Plaintiff is utilizing the FOIA process

serve the public interest by sharing records concerning the changes with those impacte

by the action. Those impacted by the FAA changing the standards for hiring ATCS a

not a small subset of society – anyone who flies is adversely impacted by th

degradation of the national airspace system at the hands of those entrusted to ensu

safety. FAA Spokesman Mr. Molinaro stated that the purge of the list of eligib

candidates was done to “add diversity to the workforce.” PSOF ¶ 10. Piercing the ve

of administrative secrecy and opening up the FAA’s actions to the light of publ

scrutiny is particularly necessary in this case to ensure public safety. Revealing th

1 Including 42 U.S.C. § 2000e-2(h)2 Including 29 CFR § 1607.15; 41 CFR § 60-3.5; and 41 CFR § 60-3.7.3 Merriam-Webster.com. Merriam-Webster, n.d. Web. 25 Apr. 2016; see also, Black’s Law

Dictionary, http://thelawdictionary.org/validation4 https://www.opm.gov/policy-data-oversight/assessment-and-selection/other-assessment-

methods/biographical-data-biodata-tests/5 http://www.siop.org/workplace/employment%20testing/information_to_consider_when_cre. aspx



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FAA’s intentional compromising of safety due to political correctness is the type

action the FOIA law was meant to reveal.

Plaintiff was forced to file the underlying suit due to the FAA’s well practice

game of administrative thimblerig and continual delay. Even after the instant actio

was commenced, the continual delays and back-pedaling continued. In summary, th

FAA changed its hiring practices in 2013 and began using a new examination, which

referred to as the Biographical Questionnaire (“BQ”) when announcing the changes

the hiring process, for hiring ATCS for the 2014 vacancy announcement. PSOF ¶¶ 6

9, 11-14. In 2015, the agency used a different examination, with a different questio

set, than the 2014 examination. PSOF ¶¶ 14-15. The 2015 examination was called thBiographical Assessment (“BA”). Id.

The FAA has constantly alleged to have performed a validation study for bot

the 2015 and 2014 examinations. DSOF ¶ 4. PSOF ¶¶ 9, 13-14, 16. Despite admittin

a validation of the 2014 exam, without anticipation of litigation, the FAA now asser

litigation as a reason for withholding the 2015 exam validation. Just recently, aft

intense congressional pressure, Administrator Huerta admitted to Congress that th

2014 validation of the test was not validated until the end of 2014, which is month

after the FAA claimed it was originally validated and was after the FAA had alread

hired individuals using that exam. Id . ¶ 17. Despite this, the FAA nevertheless stated

approximately 91% of applicants, or 26,104 individuals, that it performed the validatio

study on time for 2014. Id. ¶ 18. In 2015, the agency denied approximately 73%

applicants, or 13,219 individuals, under the claim that the biographical test ruled the

weren’t suitable for the position. Id. ¶ 19. The FAA’s claim that the validatio

documents were prepared by APT Metrics because of anticipated litigation is false. Th

FAA was required by statute to perform a validation study for the new examination.

fact, performing validation studies is a course of normal agency business and therefo



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not subject to exemption 5. Additionally, based on Defendant’s Vaughn index, it is cle

that the FAA has yet to perform an adequate search for responsive records.

II.

PROCEDURAL HISTORY

Biographical Assessment Validation Study (6130). On or about May 20, 201

Plaintiff requested records concerning the validation study for the 2015 Biographic

Assessment (“BA”). PSOF ¶ 20. The request was assigned to multiple organization

within the FAA. Id. The subject of the instant action is the response from the FAA

Office of the Chief Counsel (“AGC”). On June 18, 2015, the AGC responded with

FOIA exemption 5 claim – deliberative process, and attorney-client privilege. DSOF

16.

On June 25, 2015, Plaintiff submitted a FOIA appeal concerning AGC

response. Id. ¶ 17. Plaintiff alleged that the documents were not protected by th

Attorney-Client or deliberative process privilege. See DSOF Exhibit B.

Plaintiff received no reply from the FAA within the statutory twenty-day perio

Therefore, on July 31, 2015, Plaintiff filed the underlying action. (Dkt. # 1).

During conversations between Plaintiff and FAA Counsel, it was made clear th

the subject of this action was the validation study proving that the administration an

use of the 2015 Biographical Assessment (“BA”) was valid. PSOF ¶ 21. In other word

Plaintiff seeks proof that the BA measures characteristics related to the field for whic

the test was allegedly designed for.

The FAA remanded the FOIA request for processing on October 7, 2015. DSO

¶ 18. The FAA, through counsel, indicated by telephone that in response to Plaintiff

FOIA request, the FAA had reviewed the wrong year of records. FAA Counsel lat

emailed Plaintiff such was the case. PSOF ¶ 22. Plaintiff alleges that this is an attem

by the FAA to further stall and block access to Agency records, as Plaintiff’s initi

FOIA request was very clear as to what records were sought.



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On December 10, 2015, the FAA finally provided a “revised” response to th

FOIA request. DSOF ¶ 20. This time, the FAA dropped its pre-decisional claim an

instead invoked Attorney-Client and Attorney-Work Product Privilege. Id. The FAA

removal of the pre-decisional claim is further evidence of the FAA’s consistent willf

violations of FOIA and attempts to shield Agency documents from disclosure.

The FAA states that in anticipation of litigation concerning the ATCS hirin

process, a private contractor, APT Metrics, was contracted by the Agency to perfor

the validation study. Id. ¶¶ 3-4, 9-11. Plaintiff maintains that the FAA was required b

statute to perform such a validation study and that even with the potential threat

litigation, the validation study would have been conducted in the course of regulagency business.

The FAA’s assertion that it performed the validation study following the filin

of EEO complaints as a result of the 2014 hiring session are false, as shown by th

FAA’s failure to address anticipation of litigation during the 2014 announcement, y

it admits that it was validated. Id. ¶¶ 3-4. As a result of the FAA’s requirement

perform a validation study, the validation performed by APT Metrics is a course

normal agency business, and therefore the validation study is not subject to Exemptio

5. Furthermore, the Vaughn Index provided by Defendant demonstrate that an adequa

search for responsive records has yet to be performed.

III.

LEGAL ARGUMENT

A. Dispute of Material Facts and Inadequate Search

The FAA is not entitled to summary judgment because there is a genuine dispu

of material fact regarding whether the FAA conducted an adequate search. The cou

shall only grant summary judgment “if the movant shows that there is no genuin

dispute as to any material fact.” Fed. R. Civ. P. 56(a).



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The FAA relies on work product privilege in withholding the validation stud

(Def’s Mot. for Summ. J. at 11-12, April 4, 2016). In support of this, the FAA claim

that the validation study came about as a result of anticipated litigation when

requested the study following the filing of an EEO complaint against them. I

However, the facts tell a different story. Under the former air traffic aptitude test (AT

SAT) the FAA also conducted validation studies. PSOF ¶ 9. Exhibit 10 to PSOF. Th

FAA Administrator admitted that it hired APT in 2013 and that APT’s “work was t

last 2 years, concluding at the end of 2014.” Letter from Michael Huerta, Administrato

Fed. Aviation Admin., to Kelly Ayotte, Chair, Subcomm. on Aviation Operation

Safety, and Sec. U.S. Senate at 1 (Dec. 8, 2015). Exhibit 1 to PSOF. This shows thAPT Metrics was already conducting these validations before the EEO filings. Eve

now, the FAA is continuing with the usual practice of conducting validation studies o

their tests for the 2016 year. PSOF ¶ 23. Mem. from Teri Bristol, Chief Operatin

Officer, Air Traffic Org., to Distribution, Fed. Aviation Admin. at 1 (Feb. 11, 2016

As Officer Bristol writes in the 2016 memoranda, “[t]he FAA is evaluating potenti

replacements for the AT-SAT . . . . We are asking randomly selected CPC’s . . . to he

us evaluate their effectiveness as a future selection tool.” Exhibit 15 to PSOF. Nowhe

in that memorandum does it mention words like “litigation” or “adversari

proceedings.”

In a 2015 letter to Congress, the FAA Administrator claimed that “the FA

maintains the safest and most efficient aerospace system in the world partly becau

we continuously evaluate and strengthen our ATCS hiring and training processes

Exhibit 1 to PSOF at ¶ 2. The Administrator then states that the changes made in 201

and 2015 were to “further that commitment.” Id. Given their public proclamation

conducting a validation of the 2014 and 2015 tests, the FAA’s history of validatio

studies and the fact that they did these studies before the EEO complaint even aros



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there is a genuine dispute of material fact as to whether the FAA really did request th

study as a result of the EEO complaint being filed.

Furthermore, the FAA did not conduct an adequate search and should not b

granted summary judgment. “FOIA requires an agency responding to a request

‘demonstrate that it has conducted a search reasonably calculated to uncover a

relevant documents.” Hamdan v. U.S. Dept. of Justice, 797 F.3d 759, 770 (9th Ci

2015) (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). FAA Counse

Alarice Medrano, advised Plaintiff that the wrong years of records were reviewe

responsive to Plaintiff’s request. PSOF ¶ 22. Along with this, it is questionable wheth

the FAA uncovered all the documents regarding the validation study. Former validatiostudies done by the FAA have been well over 100 pages and consisted of multip

volumes. Id. ¶ 9. Defendant’s Vaughn Index shows the withheld validation documen

being 9 pages in length. This is drastically shorter than those previously released. Th

alludes that the FAA may not be fully forthcoming about this matter. This is furthe

shown by the FAA Administrator admitting to Congress that it did not even do the 201

validation study until after the hiring took place, contrary to what they had sa

previously. Id. ¶ 17. Given that the FAA is not being entirely upfront on this matte

that they searched during the wrong time frame, and that there are inconsistencies wi

the validation studies, Plaintiff has valid and reasonable concerns regarding wheth

the FAA has conducted a search “reasonably calculated” to find all the requeste

materials. As such, Defendant’s Motion for Summary Judgment should be denied.

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B.

Assuming No Dispute of Material Facts, the FAA is Not Entitled toSummary Judgment as a Matter of Law

1. The validation study and summary show no merit of beingprivileged

(a)

The validation study and the summary do not meet theelements of privilege

Neither the validation study nor the summary of it is protected by work-produ

privilege. “The burden of establishing protection of materials as work product is on th

proponent, and it must be specifically raised and demonstrated rather than asserted in

blanket fashion.” S. Union Co. v. Southwest Gas Corp., 205 F.R.D. 542, 549 (D. Ari

2002). “To qualify for work-product protection, documents must: (1) be “prepared

anticipation of litigation for trial” and (2) be prepared “by or for another party or by

for that other party’s representative.”” U.S. v. Richey, 632 F.3d 559, 567 (9th Cir. 201

(quoting In re Grand Jury Subpoena (Mark Torf/Torf Envtl Mgmt), 357 F.3d 900, 90

(9th Cir. 2003)).

The FAA states that it had several conversations with John Scott and asked hi

to “summarize elements of his validation work related to the use of the BA as a

instrument in the ATCS selection process” DOSF ¶ 10. Furthermore, the FAA state

that “APT Metrics provided FAA counsel with an initial summary of the validatio

work. APT Metrics supplemented this information in January 2015.” Id. ¶ 11. Th

purpose of the work-product doctrine is to protect an attorney’s mental processes

that the attorney can analyze and prepare for the client’s case without interference fro

an opponent. United States v. Aldman, 68 F.3d 1495, 1501 (2d Cir. 1995). APT Metri

admittedly developed the BA/BQ tests at issue and wrote the summaries. APT Metri

is not the FAA’s client. The FAA is Agency Counsel’s only client.

Attorneys and clients are holders of work product protection. See, e.g., In

Green Grand Jury Proceedings, 492 F3d. 976, 980 (8th Cir. 2007). While it is settle

that non-attorneys such as retained experts and consultants may author documen



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constituting work-product, so long as they act under the general direction of attorney

See, e.g., Exxon Corp. v. FTC , 466 F. Supp. 1088, 1099 (D.D.C. 1978), aff'd, 663 F.2

120 (D.C. Cir. 1980). APT Metrics is not a retained expert because of litigation. AP

Metrics designed the BA/BQ tests, and allegedly validated the same, for testin

purposes – not in anticipation of litigation. APT Metrics could not properly act as a

independent expert or consultant if the quality of its products were at issue. APT is

best a non-party witness to this FOIA matter. It is improper to invoke work-produ

privilege for a non-party witness to preclude production of materials prepared by of f

that witness even if the materials were created in contemplation of the witness’s ow

pending or anticipated litigation. Ramsey v. NYP Holdings, Inc., 2002 U.S. Dist. LEXI11728, at *18-*19 (S.D.N.Y. 2002). The second element is not at issue here. Becaus

both documents reveal only facts, because there was no litigation to be anticipated

the time of creation, and because the documents were not prepared in anticipation o

litigation, the first element is not met. Therefore, neither type of document is protecte

under work-product privilege.

(i)

The Validation Study and the Summary merely reveal facts, which arenot protected under privilege

Both the validation study and the summary only provide facts and, as a resu

are not protected by work-product privilege. The work-product doctrine does n

protect the “underlying facts.” Restatement (Third) of the Law Governing Lawyers

87(1) (2000). “[B]ecause the work product doctrine is intended only to guard again

the divulging of attorney’s strategies and legal impressions, it does not protect fac

concerning the creation of work product or facts contained within the work productCalifornia Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 299 F.R.D. 63

643 (E.D. Cal. 2014) (quoting Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D

Cal. 2003)). “Immunity does not attach merely because the underlying fact w



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discovered through a lawyer’s effort or is recorded only in otherwise protected wor

product. . . .” Restatement (Third) of the Law Governing Lawyers § 87 cmt. g (2000

For the example used in the Restatement regarding a “lawyer’s fi

memorandum[,] [i]mmunity does not apply to an interrogatory seeking names o

witnesses to the occurrence in question or whether a witness recounts a particula

version of events, for example that a traffic light was red or green.” Id.

Similarly here, the FAA hired APT Metrics to conduct a validation study th

would determine a “particular” outcome, that is, would the 2015 test be valid for use

hiring employees? Unless the FAA discloses the test itself, the validation study is th

only source determinative of whether the test was discriminatory or not. The study hsuch weight according to the FAA, that the Agency uses it as a reason to explain wh

denied applicants were not accepted. PSOF ¶¶ 11, 13-14, 16, 26. If it is an argue-poi

that the FAA is going to continually rely on, then that fact should be available to th

public. There is no creeping into an “attorneys strategies or legal impressions

especially when APT Metrics is not in the business of giving legal advice. Id. ¶¶ 2

25. Given that the validation study and the summary are but underlying facts, work

product protection does not apply.

(ii)

There is a lack of litigation needed for the FAA to anticipate in relationto the study and the summary

There was no litigation that could have been anticipated in relation to th

validation study or its summary. ““Litigation” includes civil and criminal tri

proceedings, as well as adversarial proceedings before an administrative agency, a

arbitration panel or a claims commission, and alternative-dispute-resolutio proceedings such as mediation or mini-trial.” Restatement (Third) of the La

Governing Lawyers § 87 cmt. h (2000). In short, “an adversarial rulemaking proceedin

is litigation for purposes of the immunity.” Id . The litigation in question though cann

be some vague suspicion that litigation might come from a situation. “Because litigatio



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can, in a sense, be foreseen from the time of occurrence of almost any incident, cour

have interpreted the Rule to require a higher level of anticipation in order to give

reasonable scope to the immunity.” Harper v. Auto-Owners Ins. Co., 138 F.R.D. 65

659 (S.D. Ind. 1991). Courts have ranged from emphasizing litigation being “real an

imminent” to litigation being “identifiable” or reasonable. In re Grand Ju

Investigation, 599 F.2d 1224, 1229 (3rd Cir. 1979).

In this case, we are dealing with a validation study meant to ensure the qualit

of the test used to fill ATCS positions. As already shown, this is not the first time th

FAA has conducted a validation study and today, it continues to conduct them. PSO

¶¶ 9, 23. Furthermore, APT Metrics’ website highlights the importance of disclosinvalidation studies and ensuring a transparent hiring system. Id. ¶ 25. Again with th

burden falling on the FAA, it is up to the FAA to show how this particular validatio

study was somehow not only prepared for the real possibility of litigation but als

litigation as contemplated by the EEO complaint, which it references. The mere fa

that a complaint is filed does not convert documents that were regularly created in th

past as falling under work-product privilege. Because there is no connection made

to the litigation in relation to the EEO complaint and the validation studies, the wor

product privilege does not apply.

(iii)

The Study and the Summary were not prepared in anticipation oflitigation

The FAA did not prepare the validation study or the summary in anticipation

litigation for work-product purposes. Both documents were required by law and are

part of regular Agency business. Even assuming it was tied to some possibility litigation, “[i]n circumstances where a document serves a dual purpose, that is, wher

it was not prepared exclusively for litigation, then the “because of” test is used.” U.

v. Richey, 632 F.3d 559, 567-568 (9th Cir. 2011). This “because of” test “consider[

the totality of the circumstances and affords protection when it can fairly be said th



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the “document was created because of anticipated litigation, and would not have bee

created in substantially similar form but for the prospect of that litigation[.].”” In

Grand Jury Subpoena (Mark Torf/Torf Envtl Mgmt), 357 F.3d 900, 908 (9th Cir. 200

(quoting United States v. Adlman, 134 F.3d 1194, 1195 (2nd Cir. 1998)). Therefor

even if the documents were prepared in anticipation of litigation, the materials are n

work-product if they would have been prepared irrespective of the prospect o

litigation. Bairnco Corp. Sec. Litig. V. Keene Corp., 148 F.R.D. 91, 103 (S.D.N.Y

1993).

The Ninth Circuit case U.S. v. Richey is greatly on point here. In that case, th

appellees retained a law firm for legal advice concerning a conservation easement. U.v. Richey, 632 F.3d 559, 562 (9th Cir. 2011). That law firm retained “an appraiser t

provide “valuation services and advice with respect to the conservation easement.”” I

As a result, the appraiser “prepared an appraisal report to be filed with the Taxpayer

2002 federal income tax return . . . .” Id . The Ninth Circuit found that the “apprais

work file” could not be said to have been prepared in anticipation of litigation. Riche

at 568. Despite being related to the law firm’s representation, the Ninth Circu

emphasized the fact that “the appraisal report [was] . . . required by law.” Id . “Had th

IRS never sought to examine the Taxpayers’ 2003 and 2004 federal income tax return

the Taxpayers would still have been required to attach the appraisal to their 2002 feder

income tax return. Nor is there evidence in the record that [the appraiser] would hav

prepared the appraisal work file differently in the absence of prospective litigation.” I

Like in Richey, this case involves a party’s law firm contracting with anoth

entity to create a document that assesses certain facts within its area of expertise. Lik

in Richey, the FAA was required to conduct the validation study by law.

Title VII of the Civil Rights Act of 1964 prohibits the use of discriminatory tes

and selection procedures (“Title VII”). Title VII permits the use of employment tes

so long as they are not “designed, intended or used to discriminate because of rac



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color, religion, sex or national origin.” 42 U.S.C § 2000e-2(h). The Federal governme

has issued regulations to meet the needs set by Title VII. Specifically, 29 CFR § 1607

states in part:

They are designed to provide a framework for determining the proper use of tes

and other selection procedures. These guidelines do not require a user to condu

validity studies of selection procedures where no adverse impact result

However, all users are encouraged to use selection procedures which are vali

especially users operating under merit principles. [emphasis added].

The language and spirit of Part 1607 is clear that the selection procedure’s validity mu

be well documented and properly performed. Adverse impact existed in the 2014 hirin

session, which occurred prior to the 2015 hiring session. As 29 CFR § 1607.4(D

describes, selection rates for any group lower than 4/5 of the rate of the group with th

highest success will generally be regarded as evidence of adverse impact. The 201

hiring session had adverse impact ratios of .73 for Blacks. PSOF ¶ 27. These rates a

for the phase of the application immediately following the administration of the B

used in 2014. Therefore, the adverse ratios identified above are a result of the BA use

in 2014. As adverse impact exists, the agency was required to perform a validatio

study. Since the Agency was required to perform a validation study, it was performe

in the course of regular agency business and therefore not subject to Exemption 5.

There is nothing in the record to suggest that the study “would not have bee

created in substantially similar form but for the prospect” of litigation. Even witho

this present matter, the FAA “would still have been required” to conduct the validatio

study.

Again, besides being required by law, the study was a part of regular agenc business. “There is no work product immunity for documents prepared in the ordina

course of business prior to the commencement of litigation.” Yurick v. Liberty Mut. In

Co., 201 F.R.D. 465, 472 (D. Ariz. 2001) (quoting Tayler v. Travelers Ins. Co., 18

F.R.D. 67, 69 (N.D.N.Y. 1998)); see also U.S. v. Fort , 472 F.3d. 1106, 1118 n. 13 (9



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Cir. 2007) (quoting In re Jury Subpoenas, 318 F.3d 379, 384-85 (2nd Cir. 2003)) (In

criminal case, the Ninth Circuit agreed with the 2nd Circuit that the privilege would n

apply to “materials in an attorney’s possession that were prepared . . . by] a third par

in the ordinary course of business and that would have been created in essential

similar form irrespective of any litigation anticipated by counsel”).

In U.S. v. Textron Inc. and Subsidiaries, 577 F.3d 21, 30 (1st Cir. 2009), the ca

involved “[a] set of tax reserve figures.”. Despite the dispute arising with the IRS, th

First Circuit found the ordinary business rule applied “straightforwardly” and foun

them to be “prepared in the ordinary course of business.” Id . The first circuit reasone

that “[e]very lawyer who tries cases knows the touch and feel of materials prepared fa current or possible . . . law suit . . . . No one with experience with law suits would ta

about tax accrual work papers in those terms.” Id . The figures were for the purpose

“supporting a financial statement and the independent audit of it.” Id .

Similarly here, as evidenced by the FAA’s continued practice of conductin

validation studies in 2016, they are not talking about these studies in the “terms” o

litigation. PSOF ¶ 23. Just as corporations have the regular imperative to acqui

accurate financial statements, so too does the FAA have the regular imperative

ensure that it is using a test that is selecting highly qualified candidates. The studie

were meant to be an “independent” verification that the tests were of the proper calibe

As a result, the validation study and its summary fail to pass the “because o

test and were prepared through regular agency business, thus were not created

anticipation of litigation. Therefore, it is not protected by work-product privilege.

(b)

Substantial need/undue hardship and balancing ointerests overcome privilege

Assuming arguendo that the work-product privilege applies – substantial nee

undue hardship and balancing of interests trump that privilege. “The privilege derive

from the work-product doctrine is not absolute.” U.S. v. Nobles, 422 U.S. 225, 23



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(1975). The scope of the doctrine entails one needing to “balance [the] competin

interests” of “the privacy of a man’s work” on one end against the fact that “publ

policy supports reasonable and necessary inquiries.” Hickman v. Taylor , 329 U.S. 49

497 (1947). Fed. R. Civ. P. 26(b)(3) “permits disclosure of documents and tangib

things constituting attorney work product upon a showing of substantial need an

inability to obtain the equivalent without undue hardship.” Upjohn Co. v. U.S., 449 U.

383, 400 (1981). “[W]hen documents have been generated by the government[,

scrutiny of a claim of privilege by an attorney of the government is “even more essenti

. . . where many attorneys function primarily as policy-makers rather than as lawyers

See Coastal Corp. v. Duncan, 86 F.R.D. 514, 521 (D. Del. 1980); see also Texas Puer Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995).

The Ninth Circuit Case, U.S. v. Christensen, 801 F.3d 970, 983 (9th Cir. 2015

is applicable on this matter. In Christensen, the defendant hired a third party to wireta

an individual who was in a dispute with one of the defendant’s clients.. In that case, th

Ninth Circuit found that “the work product doctrine did not apply.” Id . at 1009. Th

Ninth Circuit reasoned that the “purpose of the work product privilege is to protect th

integrity of the adversary process.” Id . at 1010 (quoting Parrot v. Wilson, 707 F.2

1262, 1271 (11th Cir. 1983)). It “did not apply to foster a distortion of the adversar

process by protecting illegal actions . . . .” Christensen, at 1010. “It would indeed b

perverse . . . to allow a lawyer to claim an evidentiary privilege to prevent disclosu

of work product generated by those very activities the privilege was meant to prevent

Id . (quoting Moody v. I.R.S., 654 F.2d 795, 800 (D.C. Cir. 1981)).

In this case, FOIA was passed by Congress to also ensure the “integrity” an

openness of its government. Similar to the Ninth Circuit’s reasoning, work-produ

privilege does not protect “illegal actions.” This is especially true in the FOIA contex

If the FAA did indeed discriminate in the testing process, the validation study wa

bound to be “work-product generated by” that illegal conduct since it was required b



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law to be done. It would be “perverse” to allow the government to shield suc

documents that were to follow such conduct, and thus diminish the integrity

government. Not only this, but the public has the substantial need to make sure that ou

air traffic control facilities are being manned by properly trained individuals so as

avoid needless endangering of lives and harming of worldwide commerce. In terms

undue hardship, the FAA is the only one with access to the test. Plaintiff does not hav

the option of hiring another to do its own validation.

The validation study is not work-product. The summaries composed by AP

Metrics at the behest of Agency Counsel was not written by Agency Counsel. Th

summaries Agency Counsel requested from APT Metrics were prepared by aindustrial organizational psychologist, John Scott and his staff, concerning th

validation study. These summaries were sent to FAA counsel. DSOF ¶¶ 12-13. AP

Metrics is not the FAA’s counsel. It is not material produced by the Agency’s leg

staff.

As a result, after balancing the various interests, the substantial need, and th

undue hardship, work-product privilege cannot stand to protect the validation study an

the summary.

(c)

Even assuming the study and summary arecovered by privilege, the FAA waived thatprivilege

Assuming work-product privilege still remains valid, it is irrelevant since th

FAA waived its privilege to the validation study and the summary. “[W]ork produ

immunity “‘may not be used both as a sword and a shield. Where a party raises a clai

which in fairness requires disclosure of the protected communication, [the

protections] may be implicitly waived.’” Verizon California Inc. v. Ronald A. Ka

Technology Licensing, L.P., 266 F.Supp.2d 1144, 1148 (C.D. Cal. 2003) (quotin



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Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, 259 F.3

1186, 1196 (9th Cir. 2001)).

In Kintera, Inc. v. Convio, Inc, 219 F.R.D. 503, 513 (S.D. Cal. 2003), the Distri

Court reasoned that “it is apparent that “important” and “significant” portions of th

witness affidavits were disclosed on [plaintiff’s] website.” The Court in that case he

that “it would be inconsistent [with the Electro Scientific court’s rationale] to fin

[plaintiff’s] document maintained privileged status after such a disclosure . . . .” Id . Th

Court also referenced how the Electro Scientific Court’s decision based its ruling o

the fact that the party in that case “intentionally disclosed the information “in an a

calculated to advance that party’s commercial interest.”” Id .Similarly here, the FAA has taken to the practice of selectively publishing i

validation studies over the years. PSOF ¶¶ 9, 23. When nothing appeared wrong and

reflected them hiring qualified applicants, the FAA showed it to the public as th

plaintiff did in Kintera. Now all of a sudden, the FAA seeks to claim such studie

which are mandated by law, as being work-product privilege. Coincidently, this shi

in agency policy concerning the disclosure of the validation study comes after th

changes to the hiring process. Again the purpose of work-product privilege is to prote

the privacy of the attorney. After sharing such things to the world, it is dubious to no

claim that the public should now respect its privacy. Plaintiff is not out to acquire a

documents related to the subject matter of tests – it simply seeks the studies.

Additionally, the FAA told the Vice President of the United States, Congres

rejected applicants and the media that the test was validated. PSOF ¶¶ 11-14, 16, 2

After making such a widespread declaration, when it is asked to put their money whe

their mouth is, they refuse to disclose. The FAA cannot have it both ways. This poi

is especially strengthened by the fact that the hiring process reflects an agency polic

of the FAA. See Nat'l Council of La Raza v. DOJ , 411 F.3d 350, 360-61 (2d Cir. 200

(stating that attorney-client privilege's rationale does not apply documents that refle



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actual agency policy). The public should be allowed to fact-check what the FAA h

already stated openly to the world.

Because the FAA waived its work-product privilege in relation to the validatio

study and summary, such documents are not protected under the privilege.

2.

The Validation Study and Summary Are Not Privileged

(a)

APT Metrics is not an attorney capable of providinglegal advice

Both the validation study and the summary fail to fall under attorney-clien

privilege. As the title suggests, even before getting into a test to determine attorne

client privilege, one needs an attorney. Since only the study and the summary are bein

sought, FAA Counsel is claiming that these two documents “contained legal advice

(Def.’s Mot. for Summ. J. at 13, April 4, 2016). In essence, their assertion is claimin

that APT Metrics was an attorney to the FAA. Id . at 19. APT Metrics created both th

validation study and the summary. DSOF ¶¶ 3-4, 9-11. Nowhere in the record does

show that APT Metrics or John Scott are authorized to provide legal advice. Such a fa

is fundamental to any assertion of attorney-client privilege. Because neither AP

Metrics nor John Scott are authorized to provide legal advice, the FAA’s argument th

the validation study and the summary contain legal advice is meritless. Therefor

neither the study nor the summary of it are protected by attorney-client privilege.

IV. CONCLUSION

The spirit and intent of the Freedom of Information Act is to pierce the veil o

administrative secrecy and open Agency action to the light of public scrutiny. Agenc

actions that compromise public safety and then attempts to cover up illegal activitie

must be revealed for the sanctity of our democratic system. As there are genuin

disputes of material fact, the FAA did not conduct an adequate search, and th

documents are not shielded under either work-product privilege or attorney-clie

privilege, Defendant’s Motion for Summary Judgment should be denied. Furthermor



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Plaintiff asks that this Court order the FAA to produce the documents requested an

conduct and adequate search in a timely manner.

RESPECTFULLY SUBMITTED this 25th day of April, 2016.

CURRY, PEARSON & WOOTEN, PLC

/s/ Michael W. PearsonMichael W. Pearson814 W. Roosevelt St.Phoenix, AZ 85007

Attorney for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of April, 2016, I electronically transmitted th

foregoing document to the Clerk’s Office using the CM/ECF System for filing an

transmittal of a Notice of Electronic Filing to the following CM/ECF registrant(s):

Eileen M. Decker

United States Attorney

Dorothy A. Schouten

Assistant United States Attorney

Alarice M. Medrano


300 North Los Angeles Street

Room 7516, Federal Building

Los Angeles, California 90012-9834

Attorneys for Defendants

/s/ Christine L. Penick



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ttorneys at Law

814 W. RooseveltPhoenix, Arizona 85007

(602) 258-1000 Fax (602) 523-9000

Michael W. Pearson, AZ SBN [email protected]@azlaw.comAdmitted Pro Hac Vice Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Jorge Alejandro Rojas,

Plaintiff,

vs.

Federal Aviation Administration,

Defendant.

Case No. CV15-5811-CBM (SSx)

PLAINTIFF’S CONTROVERTINSTATEMENT OF FACTS ANDSEPARATE STATEMENT OF

FACTS IN SUPPORT OFPLAINTIFF’S RESPONSE TODEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

Hearing

Date: May 10, 2016Time: 10 a.m.

(Before the Honorable Consuelo B.Marshall)

Plaintiff submits this Controverting Statement of Facts and Separate Statemen

of Facts in Support of Plaintiff’s Response to Motion for Summary Judgmen

(“PSOF”). The facts of record show the impropriety and inaccuracies of DefendaFederal Aviation Administration’s (FAA) Statement of Facts. The controverting fac

support a finding that Defendant is not entitled to summary judgment, and th

Defendant’s Motion for Summary Judgment must therefore be denied. The

inaccuracies also support a finding that FAA is not eligible for summary judgment fo



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this Freedom of Information Act (FOIA) action as Defendant’s statements a

controverted. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

PLAINTIFF’S CONTROVERTING STATEMENT OF FACTS

1. Plaintiff denies Defendant’s Statement of Fact (“DSOF”) ¶ 1. Based on th

record available concerning the Agency’s review of the process for hiring of the A

Traffic Control Specialist (“ATCS”) position, it is clear that the Agency did no

undertake a comprehensive review. Exhibit 1: December 8, 2014 Letter from FA

Administrator Michael Huerta.

2. Plaintiff denies DSOF ¶ 4. APT Metrics developed a different examinatio

the Biographical Questionnaire (“BQ”) test. Furthermore, John C. Scott, along wi

numerous other FAA officials, called the exam a “questionnaire” in 2014. Exhibit

2014 Biographical Assessment and 2015 Biographical Assessment. Exhibit 3: Janua

8, 2014 Telcon Transcript. Exhibit 4: Joseph Teixeira Email. Exhibit 5: Matthew Borte

Statement.

3. Plaintiff is unable to make a characterization of DSOF ¶ 5. The purpose

this civil action is to identify the ability of the 2015 BA to identify the characteristi

needed for the ATCS position. Exhibit 18: Jorge Alejandro Rojas (“Rojas Affidavit

Affidavit ¶ 4.

4. Plaintiff avers DSOF ¶ 9. The 2014 BA was substantially different. Exhib

2: 2014 Biographical Assessment and 2015 Biographical Assessment.

5. Plaintiff avers DSOF ¶ 12. The 2014 and 2015 exams were starkly differen

Id .

PLAINTIFF’S SEPARATE STATEMENT OF FACTS

6. The Federal Aviation Administration (FAA) changed the hiring practices fo

Air Traffic Control Specialists in December of 2013, taking in to effect in Februar



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2014. Exhibit 6: FAA, “ATC Hiring – Stakeholder Briefing on Hiring”, at Slide

Exhibit 7: FAA Letter to Collegiate Training Initiative Schools Graduates.

7. The new practices included removing a list of about 2,000-3,000 individua

who were on a Qualified Applicant Register or other list of candidates. Individuals we

negatively impacted as they were forced to reapply under the new hiring system an

not all were selected. Exhibit 8: National Black Coalition of Federal Aviatio

Employees “ATC Hiring update from the National President”, at page 1.

8. The Agency changed to only requiring a four-year degree in any field, or thre

years of work experience, or a combination of both. Exhibit 7: FAA Letter to Collegia

Training Initiative Schools Graduates, at page 1. Previously the Agency used to hifrom a group of schools approved by the Agency, offering aviation specific educatio

Individuals were required to take the Air Traffic Selection and Training (AT-SAT

exam. Exhibit 9: FAA, “Air Traffic Collegiate Training Initiative (AT-CTI)

8/10/2011 to 2/25/2014 Website, at page 1.

9. The Air Traffic Selection and Training (AT-SAT) was previously extensive

validated by the FAA, as indicated by a multi-volume document released by Defendan

Exhibit 10: AT-SAT Validation Documents.

10. FAA Spokesman Tony Molinaro, said the FAA’s decision to modify th

hiring process was “to add diversity to the workforce”. Exhibit 11: INFOURM – “Wa

to be an air traffic controller? UND says FAA has ‘dumbed down the process’”, at pag

1.

11. The Agency, in a January 8, 2014 telephone conference, stated that

“Biographical Questionnaire” would be used in 2014. The Agency further stated th

the exam was designed, developed and validated through the FAA’s Civil Aerospac

Medical Institute (CAMI). Exhibit 3: January 8, 2014 Telcon Transcript.

12. John C. Scott, Chief Operating Officer of APT Metrics stated that

Biographical Questionnaire would be used in 2014. Id ., at page 8.



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13. The Agency also provided several letters and statements concerning the us

and validation of the Biographical Questionnaire in 2014. Exhibit 4: Joseph Teixeir

Email. Exhibit 5: Matthew Borten Statement.

14. The Agency stated that the 2015 Biographical Assessment was “new

developed” and “empirically validated”. Exhibit 6: FAA, “ATC Hiring – Stakehold

Briefing on Hiring”, at Slide 3.

15. The Agency’s 2014 Biographical Assessment was very different than th

2015 Biographical Assessment. Exhibit 18: Rojas Affidavit ¶ 5. Exhibit 2: 201

Biographical Assessment and 2015 Biographical Assessment.

16. The Agency notified applicants that were rejected and that they failed becauof the “validated” biographical exam. Exhibit 12: BA Rejection Notices.

17. FAA Administrator Huerta admitted that the job-task analysis and th

validation was not completed until the end of 2014 – significantly after the 2014 exam

Exhibit 1: December 8, 2014 Letter from FAA Administrator Michael Huerta.

18. The Agency’s responses to previous FOIA requests 2015-008178 and 201

000431 reveal that 2,407 passed the biographical exam in 2014, while 28,511 applie

Exhibit 18: Rojas Affidavit ¶ 6.

19. The Agency’s responses to previous FOIA requests 2015-007021 and 201

009349 reveal that 5,083 passed the biographical exam in 2015, while 18,302 applie

Exhibit 18: Rojas Affidavit ¶ 7.

20. Plaintiff submitted Freedom of Information Act request 2015-006130 on

about May 20, 2015. Exhibit 13: 2015-006130 Acknowledgment letter.

21. During conversations with Defendant’s counsel, it was made clear that th

documents sought were the validation study and related communications regarding th

examination. Exhibit 18: Rojas Affidavit ¶ 8.



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22. Defendant’s counsel Alarice M. Medrano stated to Plaintiff that it was h

understanding the wrong years of records were reviewed responsive to Plaintiff

request. Exhibit 14: Email from Alarice Medrano.

23. The Agency continues to perform validation studies of the AT-SAT, in th

normal course of Agency business. Exhibit 15: February 11, 2016 FAA Memorandum

24. The Agency admitted that APT Metrics is a company of “human resourc

consultants”. Exhibit 1: December 8, 2014 Letter from FAA Administrator Micha

Huerta.

25. APT Metrics website provides several references in support of a finding th

validation studies should be disclosed and that the advice provided was not provided the capacity of an attorney. Exhibit 16: APT Metrics website & “Testing the Tes

Powerpoint.

26. Agency sent a letter to the Vice President of the United States concerning th

validation of the examination. Exhibit 17: Letter to Vice President Joe Biden.

27. The adverse impact ratios for the 2014 hiring announcement were compile

based on responses to FOIA requests 2015-008178 and 2016-000431. Roj

Declaration ¶ 7.

RESPECTFULLY SUBMITTED this 25th day of April, 2016.

CURRY, PEARSON & WOOTEN, PLC

/s/ Michael W. Pearson

Michael W. PearsonKyle B. Sherman814 W. Roosevelt St.Phoenix, AZ 85007

Attorney for Plaintiff

/ / /



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P h o e n i x ,

A r i z o n a 8 5 0 0 7

CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of April, 2016, I electronically transmitted th

foregoing document to the Clerk’s Office using the CM/ECF System for filing an

transmittal of a Notice of Electronic Filing to the following CM/ECF registrant(s):

Eileen M. Decker

United States Attorney

Dorothy A. Schouten


Alarice M. Medrano


300 North Los Angeles StreetRoom 7516, Federal Building

Los Angeles, California 90012-9834

Attorneys for Defendants

/s/ Christine L. Penick



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EXHIBIT 1

Case 2:15-cv-05811-CBM-SS Document 27-1 Filed 04/25/16 Page 1 of 342 Page ID #:196


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U.S. Department

of Transportat ion

Federal viation

dministration

December 8, 2015

The

Honorable Kelly A. Ayotte

Chair, Subcommittee on Aviation

Operations, Safety, and Security

United States Senate

Washington, DC 20510

Dear Madam Chair:

Office of t

he

Administrator

800 Independence Ave. S.W.

Washington. D.C. 20591

Thank you for your July 3 letter, cosigned by your congressional colleagues, about the Federal

Aviation Administration s (FAA) revised hiring process for entry-level Air Traffic Control

Specialists (ATCS) and requesting infonnation about the results

of

the three rounds

of

hiring

pursuant to the recently revised process.

As you know, the

FAA

maintains the safest and most efficient aerospace system

in

the world

partly because we continuously evaluate and strengthen our ATCS hiring and training processes.

The 2014 and 2015 changes to the ATCS hiring process further that commitment. This ensures

that we use an efficient and fair process aimed at selecting those applicants with the highest

probability

of

successfully completing our rigorous ATCS training program from among a large

and diverse applicant pool.

The ATCS position has been and likely will continue to be a highly sought-after and well-paid

Federal occupation for which qualified applicants significantly outnumber available positions. In

2012, the FAA undertook a comprehensive review

of

the current ATCS selection and hiring

process as called for by the Equal Employment Opportunity Commission. This review and

subsequent analysis indicated a number ofconcerns in the FAA ATCS hiring process, including

the use

of

hiring sources, the Air Traffic Selection and Training Test (AT-SAT), and the

Centralized Selection Panel.

Accordingly, given these concerns in 2013, the FAA undertook a comprehensive analysis

of

how

to improve the current A TCS selection and hiring process. The FAA retained industrial

organizational psychology consultancy, Outtz and Associates, along with nationally recognized

human resources consultants, APTMetrics, to conduct a thorough review and analysis of the

ATCS hiring process, recommend improvements, and assist

in

implementing those

recommendations. A tMctrics wo rk was scheduled to last 2 years. concluding at the end of

2014.



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2

While this

wo

rk

co

ntinued, the 2 14 Controller Workforce Plan identified the need to hire and

train 1,286

air

traffic control specialists at the

FA

A Academy. This required developing a

selection process to effectively evaluate the

ex

pected surge of applications in a timely and

cost-efficient manner.

As

a result,

in

February

2 14

the FAA implemented the

2 14

Interim

Hiring Process for one-time use, incorporating as many of APTMetrics initial recommendations

as practicable including:

• Ending the use of large

in

ventories segregated by applicant source a

nd

unrelated to

then-current hiring needs;

• Opening a vacancy announcement available on the same terms to all sources (a

ll

U.S.

citizens) to ensure equitable treatment and the broadest pool of qualified candidates;

• Eliminating the ineffective, time-consuming, costly and un-validated subjective selection

procedures associated with Centralized Selection Panels and candidate interviews; and

• Developing and substituting the Bi

og

rap

hica

l Assessment (BA) as a stand-a lone, initial,

objective selection test, in place of the AT-SAT s Experience Qu

est

ionnaire subtest, which

had lost its val idity. The

BA

is a compute

ri

zed test that measures important and

demonstrably job-related personal characte

ri

stics

of

applicants.

For

the Interim Process, the FAA chose the BA as the first step of a mult

i

step process to

id

enti

fy

the most qualified job applicants. That decision reflected detailed revi

ew of

each AT-SAT

subtest s predictive validity (i.e., how we

ll

it differentiated successful from unsuccessful

candidates). which revealed that the Experience Questio1maire

(EQ)

did not accurately predict

success in proceeding through the FAA academy or attainment of Certified Professional

Contro

ll

ers (CPC) status at the first facility.

APTMetrics developed and

va

lidated the BA using years of research and data gathering by the

FAA s

Civil Aerospace Medical Institute for three different biograph i

ca

l instruments, including

the EQ when it was part

of

the AT-SAT. The BA meas

ure

required personal job-related

attributes and

was

validated to I) predict pass rates

at

the FAA Academy, and 2) pr

ed

ict

ce11ific

a

ti

on

of

an ATCS

at hi

s or her first assigned facility. Notably,

th

e validation wor ,

indicated the

BA

had a high-level of valid it with little adverse effect on any discrete grou

; or

subgrou of test-takers.

The Agency also r

emoved the interview stage of the hi.ring process for several reasons. The

questions used in the

i n t r v i ~

were commonly shar

ed

online, and the interview process yie lded

an historical passing rate approaching l percent. Thus, and most importantly. the interview

added little value

in

the selection of ATCS. Further, the interview process was not

sta

ndardized

or

validated, and the managers conducting

th

e interviews had little

or

no training on proper

interviewing procedures. Moreover, the Agency s decision

to

assign faciliti

es

after training.

rather than during the selection process, made it impossible for managers to interview candidates

th

at wo

uld repo11 to their facilities. Finally, some have raised the concern that the interview

screened for language barriers, the ATCS application asks the candidates to confirm their ability

to speak English clearly in the san1e way it asks app licants to confirm they satisfy the maximum

These include flexibility: r

isk tol

erance; self-confidence; dependability; resilience; stress tolerance; coopera

tion;

teamwork ; and rules application.



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entry age of 31 years.

Th

e FAA will periodically evaluate and update interview guides and

interview process for future announcement

s

3

As a result of these changes, the 2014 Interim Hiring Process became more efficient,

economical, and transparent. We significantly reduced applicant processing time and in 20 14

saved more than $8 million

in

AT

-SAT testing costs

by

using the

BA

as an initial screening tool.

Additionally, under the legacy process, applicants could be placed on inventories for years and

have no understanding ofwhether they would ever be hired by the FAA and sent to the FAA

academy. Under both the 2014 and 2015 announcements, applicants who passed the selection

hurdles received a Tentative Offer Letter. Those who successfully completed the remaining

medical and security clearances were assured a position and received an estimated date to start

their academy training.

Moreover, by opening the announcements to all sources in the general public, th e revised hiring

process as reflected in the chart below. significantly increased the representation

ofwo

men who

successfully completed the assessment process and to vari ous extents increased the

representation

of

racial and ethnic minorities, as compared

to

the Agency s legacy selection

processes.

ender

CPC Population Interim 20

14

N= l 1567 Percentage N=l593 Percentage

Female 1855 1

6 26

0 28 .

5

Male 9712 84% 651

71.5%

Declin

ed

to

0 682

Respond

Ethnicity CPC Population Interim 2014

N= ll567 Percentage

N= l 593

Percentage

Multi-ethnic

123

1 1 %

48

5.3%

Hi spanic

or

782 6.8% 153 16.9%

Latino

Asian 270

2.3

57

6.3%

Black

or

623

5.4%

93 10.3%

African American

American Indian

86 0.7% 4

.4%

or Alaskan Native

Native Hawaiian

or

Other Pacific 29 0.3%

6

.7%

Islander

White 9654 83.5% 544 60

%

Declined to

0 688

Respond

The 2015 ATCS hiring process is substantial ly similar to the 20 14 interim process, with a

number of modifications. First, in 2015, the Agency us ed a n

ew

ly refined BA. The 2015 B



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4

was developed using the newly o m ~ l e t e d 2014

job

analysis of the ATCS position, \vhi_cb

identified the critical and important

re

uiremenls of the ATCS job. The n

ew

BA measures the

knowledge, skills and other characteristics that could most readily be assessed with a biodata

instrument, including those attributes that are not substantially assessed by the AT-SAT. A total

of 1,765 current air traffic control specialists participated

in

the job analysis s tudy

and