Class Actions

 

 

McCollum v. FAA Update – August 8, 2010

A couple of emails were sent over the last month (July 3 and Aug 6). If you did not receive them, please drop us an email at jeffatchley@gmail.com with an updated email address. For those who have told us they have no email, a hard copy of the first update was sent, but not the second. If you’ve moved since giving us your home address and phone number(s), please email (or USPS mail) those changes to us too.

McCollum v. FAA Update – July 28, 2009

An update was sent via email this past week. If you did not receive it, please drop us an email at jeffatchley@gmail.com with an updated email address. For those who have told us they have no email, a hard copy of the update is being mailed Monday, August 3, 2009. If you’ve moved since giving us your home address and phone number(s), please email (or USPS mail) those changes to us too.

McCollum v. FAA Update April 2, 2009

There are really no new developments on our class action. We have been bogged down in “fact” discovery, including disputes over the scope of the class, the scope of information we have been requesting, etc. Both parties are currently preparing legal memoranda regarding various issues as requested by the Administrative Judge. These issues include things like whether the FAA can conduct individual discovery in certain areas as to the members of the class. The bottom line is that they cannot, but they can typically submit written discovery requests to a “sample” of the known class members. One of the issues the Judge has requested briefs on is how large this sample should be, and what kinds of information the FAA can seek from such a “sample”. The FAA’s brief on these issues is due April 10, and we will file our response by April 17.

In addition, within the next two weeks or so we will hopefully be getting an Excel spreadsheet from FAA providing detailed information as to all persons selected for ATCS positions since January, 1999. This is in addition to other documents and information we have requested previously. In anticipation of your questions…yes, this process is extremely slow and frustrating. I am not able to tell anyone when there will be a decision in this case. We still have several “hurdles” to go, including the FAA’s motion for decertification which they will surely file at the close of discovery in a few months. At that same time, we will be filing our motion asking for certain rulings, including expanding the remedy period to go back to 1999. All we can do is keep putting one foot in front of the other and try to keep things moving as fast as we can.
As always, I will send out updates and news of any developments as they occur. In the meantime, thanks for your continued perseverance and understanding, and keep me advised of any address changes – including any change in email address!!

Jeff

McCollum v. FAA Update January 18, 2009

As we start the new year, there is not a lot to report on the class action. Prior to the holidays, we were trying to work out how (and in what form) the FAA was going to produce certain documents we have requested. Until we receive these documents, as well as other information we have requested, we cannot begin taking depositions. I anticipate finalizing something in the next two weeks on this, and should be able to start scheduling depositions of key FAA officials over the next 2-4 months. As I have said many times in the past, this is a painfully slow process.

Several people have been asking when this case will be over, and I wish I could give you a definite answer. Unfortunately, I cannot tell you. There is no “schedule” per se at this point for a hearing or final decision on the liability issue. The best I can do is tell you that, with any luck, we should be able to submit everything to the Administrative Judge for her to make a decision on the issue of class discrimination before the end of this year. Assuming the ALJ issues a decision within a reasonable time period of receiving all the evidence, we could be looking at a liability decision in the last quarter of the year. Again, this is only my best estimate and is no guarantee!

Assuming we win on the liability issue, we will then enter the remedies phase, which will likely take a few months as well. I will post news of any developments when they occur. Thanks to everyone for their patience.

As a reminder, make sure you keep me advised of any address or email address changes! This update is also being sent out via email. We send it over a three day period, so if you have not received this email by January 22nd, email us at jeffatchley@gmail.com and advise us of your correct email address. Also, if anyone wants to contribute to the litigation expense fund, you can do so by sending your donation to PATCO. We have not used up all the expense money provided by PATCO so far, but once we start taking depositions, it will go pretty fast. Take care,

Jeff

McCollum v. FAA Update October 19, 2008

I know people have been asking about where things stand, and the reason there have been no updates is simply because we are still in the discovery phase and nothing has really happened to report! Some of the delay is attributable to the FAA’s apparent project initiated more than a year ago of scanning all of its personnel files. According to the FAA lawyers, a third party contractor has had possession of many of the personnel files I have requested for the purpose of scanning everything. We have also had disputes over the FAA’s demand that I pay costs associated with obtaining, copying and/or scanning these documents. This issue is still being discussed, but we are now scheduled to go to Washington, D.C. on October 27 to review documents at FAA Headquarters. I will be spending a couple of days there reviewing documents.

Assuming that all of the documents and other information I have requested are produced, we will then begin scheduling depositions of key FAA officials. I hope to get these depositions scheduled during early December, but they may bleed over into the new year. While I will not identify here all the individuals we intend to depose, it will include officials from both the Air Traffic and the Resource Management divisions in D.C., as well as some people at OKC and Air Traffic people at the Regional office level. Since this claim relates to the time period going back to 1999, we will be seeking depositions of managers who have served in decision-making positions from that date forward.

As yet, there is no formal “schedule” set with deadlines for completing all fact discovery and a hearing date. Once we have obtained the hiring data, including the date of hire, facility, and age and qualifications of all persons hired since January 1, 1999, we will be retaining an expert statistician to analyze the hiring data. With any luck at all, we will have all discovery complete, including expert discovery by both sides, and be prepared to submit the proof to the Administrative Judge by early next summer. Again, this is nothing more than my best guesstimate. We will likely be having another conference with the Administrative Judge before too long, and may have a definite schedule and firm dates, including a hearing date set by the ALJ. As soon as I have something new to report I will post an update.

Meanwhile, I can only tell you that I still feel very good about our chances of getting a finding of class discrimination in this case. There are still a lot of pitfalls and legal hoops to jump through before we get there, but we will keep persevering until we do. I would ask everyone to at least do two things for now: 1) Make sure you keep me advised of any email/address changes; and 2) Be sure to GO OUT AND VOTE on November 4th, and each of you should try to convince at least two of your friends, neighbors or family members, to also go vote as well. Notice I am not trying to tell anyone who to vote for! Assuming that the majority of you, and all would be voters, are rational thinking people, I shouldn’t have to. If all possible voters were to vote on November 4th, it is a foregone conclusion that we would elect the right person. Take care,

Jeff

McCollum v. FAA Update June 17, 2008

There is not much to report at this point. We are preparing our response to the FAA’s discovery requests to be submitted by July 15, and the FAA’s response to our discovery is due by August 15. As indicated before, once we have received and reviewed the documents and information we have requested from FAA, we will be scheduling depositions of a few FAA managers.

As a result of a request made by the ALJ to FAA legal counsel at our last teleconference, I should be receiving a list from the FAA in the next week or so of all hires by FAA at all of those facilities for which those on the PATCO Inventory applied. The ALJ requested this information from the FAA earlier, and if it is complete and accurate, it should provide both the ALJ and the parties a pretty good idea of the total number of vacancies filled during the period of time for which we are claiming. This information should include the dates of each hire, the facility to which hired, and the identity of those hired.

There is nothing else anyone needs to do at this point other than continue to send me any documents relating to your efforts to get hired that you have not already provided, and keep me posted as to any address/email changes! Thanks, and take care.

Jeff

P.S. It was great to see everyone who made it to the PATCO convention in Tunica last month! As you know, PATCO has committed to help pay for the out-of-pocket expenses in this case, which are going to start mounting up when we start taking depositions. If you are not a dues paying member of PATCO and want to contribute towards these expenses, please get in touch with Ron Taylor at PATCO. Any contributions you want to make towards expenses in this case should be forwarded to PATCO and designated for this class action. The bottom line is that without this commitment by PATCO, the expenses and fees in this case would necessarily have to have been assessed to the individual class members.

McCollum v. FAA Update April 15, 2008

Discovery Status: Administrative Judge rules on Motions to Compel.

As you may recall, both sides have already submitted their initial responses to each others discovery requests, with many objections being raised by the FAA and some by us as well. Both sides filed motions to compel the other to fully respond to their discovery requests, and we have been waiting for the Administrative Judge to rule on these motions before moving on to the next phase of discovery.

The Administrative Judge has now ruled on the parties’ respective motions to compel discovery information. The ALJ’s Order, issued April 9th, addressed numerous arguments by both sides relating to the type of information and documents being sought, as well as the “scope” or relevant time period to be considered. Without getting bogged down in the details, and keeping in mind that this is a “public” message, I believe it is fair to say that the ALJ’s Order was both fair and equitable. She ordered the FAA to respond to most of our outstanding discovery requests, including identifying all selections made by the FAA for ATCS positions during the time period October 1, 1998 through September 30, 2007. This information is to include the following information for each person hired: Name; date of birth; date of hire; Vacancy Announcement under which hired; name and location of facility; and the source or applicant pool from which hired. For those persons hired between October 1, 2002 and September 30, 2007, the FAA is further required to identify, by name and job title, the person who made each selection.

The ruling also requires the FAA to respond to certain other discovery requests, including such things as identifying selection criteria used; whether comparisons were made as to the relative qualifications of applicants from different applicant pools (i.e. PATCO vs. CTI, vs. MARC, vs. VRA, etc.); whether, and if so, what, guidance was issued from the national level regarding selection criteria, quotas, etc.; whether PATCO applicants were considered ineligible for certain vacancy announcements; and identifying and describing any and all quotas, allocations, or other limitations imposed on hiring from the PATCO Inventory. The FAA has also been ordered to produce a tremendous amount of documentation relating to all of these issues. All in all, this appears to be a positive ruling and, more important, it means we can now move forward again

At the same time, the ALJ also ordered us to provide certain supplemental information and documents to the FAA, most of which we have already provided. Our supplemental responses are due by July 15, 2008, and the FAA has been ordered to supplement their responses by August 15th. After we receive and review this supplemental discovery we will be scheduling depositions of several key FAA management witnesses.

That’s all the news for now…and yes, this is a painfully slow process! Your continued cooperation and perseverance is appreciated. Should you have any questions, please forward them via email to me at jeffatchley@gmail.com. Thanks!

Jeff

McCollum v. FAA Update March 5, 2008

Not much has changed since the last update. We have received the FAA’s initial response to our discovery requests, but are currently “stalled” for a couple of different reasons. One, the FAA has been unable to provide us with certain individual personnel information requested because they have been in the process of converting and modernizing their personnel/record keeping functions to be computer based. This apparently has involved providing many of their records to a contractor for the purpose of scanning all records into a computer based system. Second, we are also waiting for the Administrative Judge to rule on motions to compel filed by both parties. The FAA objected to producing certain information and documents on several grounds (as did we) and both sides filed motions to compel. The Administrative Judge has indicated that she will rule on these motions soon and we should know much more once we get her ruling. That ruling, when it comes, will be important, because it should pretty much define the scope of the discovery that both parties are going to be allowed to do. Until we get her ruling, we are not in a position to take the depositions we need to take of FAA managers and officials. I cannot give you a “timeframe” to get this done right now, but we will keep you posted as things develop.

Meanwhile, there is nothing further any potential class members need to do as yet. As requested before, make sure you collect and keep any documents you might have relating to your efforts to get rehired since 1993, including any medical records, earnings, etc. for the time period since 1999. You DO NOT need to send me copies of medical records and earnings information yet. Just hang on to them and I will let everyone know if and when we need them.

Make sure you keep me (and the FAA) updated with your current email address, regular mailing address and telephone number. As I have mentioned before, this is a very slow process, and we are doing everything we can to keep it moving. If you have any questions, please send them to me via email: jeffatchley@gmail.com.


Documents: I have previously requested documents from people, and have received a substantial number of documents over the last several months. At this point, if you have documents that you have not already sent to me, and which relate to your application in 1993; or to any communications since then with FAA regarding your application status, please make copies and send them to me at:

Jeff Atchley
NORWOOD, HOWARD & ATCHLEY
266 So. Front St., Suite 206
Memphis, TN 38103

Jeff

McCollum v. FAA Update January 11, 2008

This is to let you know that an email update was sent to each of the class members on December 19th. If you did not receive the update it means I don't have your correct email address and you need to contact me via email at jeffatchley@gmail.com with your correct email address.

Thanks, Jeff

McCollum v. FAA Update October 10, 2007

There has not been much change in status since the last update. Both sides have filed their respective objections and motions to compel with the Administrative Judge regarding the scope of written interrogatories and requests for documents. We anticipate the Administrative Judge ruling on these discovery issues in the very near future. Once we have exchanged documents and initial information, we will be trying to schedule the first depositions of FAA managers. As soon as there is something substantive to report I will post another update.

Meanwhile, please make sure you keep me updated with your current email address, regular mailing address and telephone number. As I have mentioned before, this is a very slow process, and we are doing everything we can to keep it moving. It would be helpful if any questions you might have are sent to me via email: send to: jeffatchley@gmail.com.
Documents: I have previously requested documents from people, and have received a substantial number of documents over the last several months. At this point, if you have documents that you have not already sent to me, and which relate to your application in 1993; or to any communications since then with FAA regarding your application status, please make copies and send them to me at:

Jeff Atchley
NORWOOD, HOWARD & ATCHLEY
266 So. Front St., Suite 206
Memphis, TN 38103

Finally, a note to all of those who may have been receiving and contemplating job offers from the FAA the last month or so. Remember, any such job offer, or more specifically, your response to that job offer, will have very little impact on this class action or on your particular claim as a member of the defined class. Accepting the job will not keep you from having a claim; likewise, declining the job will also not keep you from having a claim. The amount you earn in this job, or any other job you might have, is what will be looked at in determining backpay and benefits in the event we prevail and your claim is accepted. Thanks for your patience and perseverance!

Jeff

McCollum v. FAA Update September 9, 2007

There is not much to report. We are still conducting discovery, with written questions and requests for documents, and both sides have filed motions to compel with the Administrative Judge, who will have to determine the scope of discovery and rule on our respective motions. We anticipate that a ruling on these discovery motions will come sometime around the end of September or early October. It is difficult to tell you when things are going to be happening in the future, but generally we will be doing this document and written question “discovery” for the next month or so.

Once we have the FAA’s initial discovery responses, we will be trying to schedule a series of depositions of various FAA decision-makers – probably at both the Air Traffic (national) and Regional level. Exactly who we depose will depend on the FAA’s responses to our initial discovery. When a decision is made as to depositions, I will be letting everyone know who we are deposing and when. In the meantime, thanks for your cooperation and patience. As always, if you have any specific questions, you can email your question to me at jeffatchley@gmail.com.

McCollum v. FAA Update July 8, 2007

Not much has happened since the last update. We are conducting "discovery" and have several "disputes" so far. We will be talking to the FAA's attorneys to try to resolve these disputes (it seems they do not want to provide us with certain information). If we cannot get the information and documents we want, then we will be filing a motion to compel with the Administrative Judge in Dallas. This initial discovery should take 2-3 more months, and I will be hiring at least two experts in the next 60-90 days - one to do a statistical analysis and one to consult with, and possibly provide expert testimony, regarding the federal retirement and benefit plans and how they would be applied to PATCO applicants.

McCollum v. FAA Update June 10, 2007

OOPS

I'm sending out the QUESTIONS AND DOCUMENT REQUEST email. I sent the first batch today, but forgot to attach the questions. I'm using GMAIL, and it has a limit of 500 emails per day to be sent, so it will be tomorrow before I can resend that first batch. You don't need to tell me there was no attachment. Sorry. I sent the emails alphabetically BY EMAIL ADDRESS. Today's group was the email addresses starting with A through H. I'll resend tomorrow (Monday June 11, 2007). The second batch (I through Q) will be sent out Tuesday and Wednesay is R-Z. Thanks.


McCollum v. FAA Update May 30, 2007

So What's Going On?!?!?

For those that are curious as to where we are in this case, the parties are currently conducting discovery. We have submitted a detailed set of interrogatories (written questions) and requests for documents which the FAA is required to answer within 60 days (by June 20, 2007). Likewise, I am in the process of responding to similar discovery submitted to me by the FAA's lawyers. This discovery is limited to information relating to the issue of liability. Without going into great detail here, I have requested, among other things, that the FAA identify all persons hired into ATCS positions since January, 1999, including their age, their qualifications, the facility into which they were hired, and the authority under which they were hired. Other information being sought includes all policies at the national, regional and facility level (directives, memoranda, orders, guidelines, etc.) relating to the application and selection process for filling ATC positions since January, 1997; and the identity of those persons who made all selections.

We will be in this discovery process for the next few months. If the FAA does not fully respond to our discovery we will file a motion to compel to force compliance. Once I have obtained the full responses to this first round of discovery requests, I will be taking the depositions of the key management personnel identified. This will definitely involve taking depositions in D.C., and will likely require going to the various Regional Offices to depose the people in each Region with knowledge of how things have been done.

In the FAA's discovery requests to us, they have made it clear that they intend to try to limit the class (and the possible remedy) by showing that many PATCO applicants: (1) Did not respond to the FAA's December, 2005 letter requesting that everyone update their application; (2) did not respond to that letter timely or completely; or (3) did not keep their mailing address updated, resulting in that letter being returned to the FAA as undeliverable or not at that address. I will be sending specific email/letter requests out in the next few days to those people the FAA has identified in these categories. In these requests I will ask you to confirm what you did or didn't do in response to that 2005 letter, or that you in fact received it or not. If I need information from you I will be sending you a letter or an email. If you get a request from me, it is important that you respond as soon as possible. We have a massive amount of information to try to collect from hundreds of people, and then we have to assimilate this info and put it together in some kind of coherent fashion. This simply cannot be done without everyone's cooperation!! If you do not get a request for info from me that means I do not need anything from you!

While I am more than happy to answer phone calls, I am asking everyone to try to limit your attempts to contact me. We have over 1,000 PATCO applicants we are dealing with so far. It is my intent to send out specific requests to those from whom I need information, and email responses are the most efficient way of getting this done.

Again, remember that we are not dealing with the remedies issues at this time. This means issues like back pay, benefits, medical qualifications and interim earnings are not part of this discovery. We will get to those issues if, and only if, we prevail during this current phase and get a finding of class discrimination. For now we are focused on issues relating to the application and selection process for ATCS positions since 1999.

What's Next?

While there is no firm schedule, I would expect that the parties will complete this discovery, including expert witness discovery that will follow this general fact discovery, and will submit our respective evidence and legal arguments to the Administrative Judge sometime early in 2008. It will be up to the Administrative Judge at that point as to whether a full hearing (trial) is necessary. If a hearing is held, it will most likely be held either in Houston or Dallas, Texas. With or without a hearing, the Administrative Judge would then have to issue an Initial Decision as to whether she finds class discrimination by the FAA on the basis of age against the PATCO applicants. Realistically, that Decision will probably not be seen until the late Spring of 2008 at the earliest.

No one said this was going to be easy. It also ain't going to be quick! Say what you want about our legal system, but know that it grinds slowly and relentlessly forward without compassion. The only way to even have a chance of winning this case is to win the battle of the details. Keep in mind that we are not litigating this case to achieve 'Justice'! This case has nothing whatsoever to do with the events of 1981. We are simply trying to prove that the FAA has discriminated against the PATCO applicants as a group on the basis of age and obtain as much of a remedy as possible for as many people as possible.

Reminder: Please keep me posted with any email or address changes!!

Send changes to jeffatchley@gmail.com

McCollum v. FAA Update April 30, 2007

Class Discovery

We have received discovery requests from the FAA in this case, and I will be needing information and/or documents from many class members in order to fully respond to these discovery requests. Over the next couple of weeks I will be sending out specific requests to certain class members. If you receive one or more of these requests from me, I will need you to provide your response to each request within two weeks of the date you receive it. If you do NOT receive a request from me, don't worry about it, and try not to call to ask or to tell me that you have not received one!! If I need information from you I will contact you.

Some of the requests will simply be asking for information and you will be able to respond via reply email. Other requests may ask you to provide me with information, and to send me copies of certain documents you might have. Unless you are sending me copies of documents I ask for, please try to respond via email rather than by regular mail. If you receive more than one request I really need you to respond separately to each request you receive!! Thanks.

Other General Info:

Note: Due to the fact that this information is being posted on a non-secure web-site, we are limiting information to only that which does not reveal privileged, confidential or attorney work-product information regarding litigation strategy.

The Age 56 Rule: I still receive many questions regarding the age 56 rule and how it will affect this case. I have gone through this before, but we have many new people getting involved now, so here is a brief summary of this issue:

All class members fall into one of two categories. (1) those originally hired by FAA into an ATCS position prior to May 16, 1972, and (2) those originally hired after this date.

All class members in category (1) are exempt from the age 56 rule and can be rehired at any age, conditioned solely on passing a Class II medical.

If you are in category (2), the FAA is arguing that at the time you turn 56 you become ineligible to be rehired into an ATCS slot. Thus, argues the FAA, if you turned 56 before the claim period in this case (i.e. September 16, 2003 to the present), then you should be considered ineligible to recover because you could not have been rehired even if there had been no discriminatory policy in place as we allege. We disagree. Our argument is pretty simple. At the time everyone was terminated in 1981, they were under the old CSRS retirement system. Since 1981, the government has converted to the new Federal Employees Retirement System (FERS). Under FERS there is a specific provision that allows you to work until age 56, OR until you reach 20 years service, whichever is later. It is our position that this provision would effectively allow a PATCO striker to be rehired regardless of age, so long as they elected to come back under FERS and not the CSRS off-set option. We are aware of numerous instances of this already happening. There are several PATCO rehires (from the 1997-1998 rehire group) in the system who have continued to work past age 56 under FERS.

The bottom line is that the Administrative Judge will be the one who ultimately decides this issue, and both sides will submit their respective facts and arguments to her on this issue when the time comes. Stay tuned, and make sure you keep me advised of your current email address and any changes!!!

McCollum v. Dept of Transportation (Federal Aviation Administration) UPDATE APRIL 18, 2007

General Information:

This case is a class action that was filed by David McCollum in November, 2003 on behalf of himself and all other similarly situated PATCO strikers who applied for Air Traffic Controller positions with the FAA in 1993 after the Presidential ban on their being rehired was lifted by President Clinton. In his complaint, McCollum asserted that he and other PATCO applicants had been denied consideration and selection for ATC positions because of their age, in violation of the Age Discrimination in Employment Act (ADEA). The EEOC has accepted the class complaint as both a claim of intentional disparate treatment on the basis of age, as well as a claim of adverse impact discrimination. Under the adverse impact claim, the class does NOT have to prove that the discrimination was intentional age discrimination. Rather, we only have to prove that the FAA maintained a policy or practice that had a severe adverse impact on older applicants.

The case has been certified as a class action by the U.S. Equal Employment Opportunity Commission (EEOC) and is assigned to an Administrative Judge in the EEOCs Dallas District Office. The EEOC has defined the class to include those PATCO controllers who applied for reinstatement in 1993 during the FAAs 45 day application period for PATCO strikers under FAA Notice 93-01. The class includes those who were put on what has been referred to by the FAA as the PATCO Inventory. The class has further been limited by the EEOC to only assert a claim for vacancies filled by the FAA on and after September 16, 2003.

The EEOC ordered the FAA to send out a Notice of the Class Certification to all class members, and these Notices were mailed out by the FAA on or about March 21, 2007 to approximately 3,663 PATCO applicants. The people to whom Notices were presumably mailed were those PATCO applicants who were on the FAAs PATCO Inventory as of September 16, 2003. Those PATCO applicants who were rehired by the FAA prior to September 16, 2003 are NOT eligible to participate as class members. ( see below for more on this)

Phase I, The Liability Phase:

As of April 20, 2007, the parties are commencing class discovery in what is referred to as Phase I or the Liability phase. Over the next several months, legal counsel for the class will be obtaining documents and information from the FAA, and will be taking up to 20 depositions of FAA managers in Washington , D.C. as well as in Regional offices and possibly some of the large Centers around the country. The purpose of this discovery will be to develop evidence to try to prove that the FAAs policies and practices towards the PATCO applicants over the time period since 1999 has intentionally discriminated against the PATCO applicants on the basis of age. Alternatively, we will be trying to prove that the FAA maintained a policy or practice that, even if not intended to discriminate on the basis of age, nevertheless had a substantial adverse impact on the applicants in the PATCO applicant group, all of whom were in the protected age group under federal law.

Phase II, The Remedies Phase:

At the end of Phase I discovery, the parties will each be submitting their evidence and arguments to the Administrative Judge in Dallas and asking the judge to rule in their favor on the issue of liability. The Administrative Judge will then have to decide, either with or without a hearing, whether or not there has been class discrimination and issue a written Decision. If we are successful and the Administrative Judge finds class discrimination, then all class members should receive a copy of the Decision and a Notice advising them of their right to file a claim for relief as a class member. If we are NOT successful, the Notice will tell you that the class is being decertified.

If there is a finding of class discrimination, then the law provides that all class members are presumptively entitled to appropriate relief and the claims will be submitted to the FAA. FAA will have to either accept the individual class members claim or object to it. If they object to a claim, the FAA will have the burden of proving, by clear and convincing evidence, that the class member is not entitled to that relief for some valid reason. Of course, the FAA would have the opportunity to appeal the finding of class discrimination to the EEOCs appellate division in D.C. (the Office of Federal Operations OFO ). The ultimate decision by OFO is binding on the FAA, and the FAA would NOT be able to appeal to any federal court.

If there is a finding of no class discrimination, then we will have the right to appeal to the EEOCs appellate division in D.C as well, or we could elect to not appeal, and turn around and file the class complaint in federal district court in Houston Texas and start over again from square one in federal court!

Notes of Interest and Clarification:

If you did NOT receive a Notice of Class Certification, but believe you were in the PATCO Inventory and should be considered part of the class, do not worry too much. The FAA appears to have used some old addresses in sending out the Notices, despite having more current addresses in their system. Ultimately, whether you actually received a Notice will not determine your eligibility. Your eligibility can also be established when we enter Phase II Remedies.

As noted above, if you were rehired prior to September 16, 2003 you will not be able to recover in this class action as it currently stands. However, we intend to make one more argument to the Administrative Judge at the conclusion of Phase I discovery to redefine the class to allow us to go back to 1999. So far the Judge and the EEOC have rejected this argument, but I believe the Administrative Judge will give us an opportunity to make this request and will reasonably consider the evidence and legal argument on this issue when the time comes. All we can do is wait and see what happens.

We will be seeking the full remedies allowed by the ADEA if we prevail. These remedies include generally: a job for those who are ready, willing and able to go to work as an ATC (i.e. can pass the flight physical); back pay and lost benefits retroactive to the date the evidence shows that the class member should have been hired. Remember, we are currently limited to only going back to September 16, 2003. Obviously, if we are able to move this date farther back it will make a huge difference. Generally, back pay is determined by first calculating what you would have earned with the FAA (including all overtime, differentials, etc.) had you been hired at a certain date through the present. Then, from this total amount you subtract what you have earned during the same time period from other employment. The difference is your back pay. The same method is used to calculate lost benefits, so a person could, in fact, not get back pay, but be entitled to recover lost benefits, including retirement.

If and when we enter Phase II for remedies, each class member will be required to submit their claim for relief within the time period set by the Administrative Judge in her Decision and Notice. Those class members who do not submit a timely claim at that point, absent really good cause, will likely be dismissed from the class and barred from recovery. As a class member, you do not have to retain legal counsel, and can submit your claim on your own if and when that time comes. You also have the option to retain your own lawyer to assist and represent you in the remedies phase.

As the attorneys for the class, if we prove class discrimination and then enter the Remedies phase, we will NOT be representing those individual class members who do not retain us to do so. Unfortunately, the EEOC and most federal courts have previously ruled that you cannot recover attorney fees and expenses if you win an age discrimination claim against the federal government. We will argue this when the time comes of course, but in the meantime, we cannot anticipate any way of getting paid to handle this nation-wide class action without having a retainer agreement with class members. If you would like more information regarding this retainer agreement, send us an email at jeffatchley@gmail.com requesting retainer agreement info.

As developments warrant, we will post updates on this site to let you know what is going on. We want to remind everyone who is a class member to make sure that you keep us posted as to any change in address, email and telephone number. Thanks for your patience and cooperation as we move forward in this case. Jeff