The United States Law Week

Rejected Air Traffic Controller Applicant Can’t See Test Scores

Oct. 22, 2019, 7:05 PM

An unsuccessful air traffic controller applicant can’t see his test score or the minimum passing score he needed for the assessment he took to be considered for the job, the Ninth Circuit said Oct. 22.

Jorge Rojas’s request was properly denied under exemptions to the Freedom of Information Act and the Privacy Act, the opinion by Judge Sandra S. Ikuta said.

Rojas attended a Federal Aviation Administration accredited program to prepare to take the Air Traffic Selection and Training examination. When he started his studies, Rojas was entitled to a hiring preference if he successfully completed his courses and the exam.

But the FAA adopted a new system based on successful completion of a Biographical Assessment, which was implemented to make the FAA’s hiring practices more diverse. The assessment, which is a multiple choice exam designed to assess a candidate’s aviation aptitude, asks questions like what the applicant’s ideal job is, and what the major causes of his failures were.

After he failed the assessment, Rojas requested his assessment score and the minimum score needed to pass. The district court denied his request. It cited the FOIA exemption for matters related to the internal personnel rules and practices of the FAA, and the Privacy Act exemption for materials related to testing to determine an applicant’s employment qualifications.

Affirming, the appeals court said the FOIA exemption applies to FAA rules and practices for scoring tests related to the selection of employees, including those regarding minimum passing scores and the score of a particular test.

The Privacy Act exemption applies because test scores are part of the material needed to evaluate a job applicant, and the agency presented evidence that prior applicants worked together after receiving their scores to determine which answers were correct, the court said.

Rojas, in an earlier case, however, was given access to documents created by the consultant that developed the assessment.

Judges Richard R. Clifton and Michelle T. Friedland joined the opinion.

Curry Pearson & Wooten PLC represented Rojas. The U.S. Attorney’s Office represented the government.

The case is Rojas v. Fed. Aviation Admin., 2019 BL 403175, 9th Cir., No. 17-17349, 10/22/19.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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