Flyers Rights Educ. Fund v. Fed. Aviation Admin.
| Decision Date | 16 September 2021 |
| Docket Number | Civil Action 19-3749 (CKK) |
| Parties | FLYERS RIGHTS EDUCATION FUND, INC., et al., Plaintiffs, v. FEDERAL AVIATION ADMINISTRATION, Defendant. |
| Court | U.S. District Court — District of Columbia |
This lawsuit arises from a Freedom of Information Act (“FOIA”) request made by Plaintiffs Paul Hudson and Flyers Rights Education Fund, Inc. (“FlyersRights”) to Defendant Federal Aviation Administration (“FAA”). FlyersRights requested records pertaining to the FAA's review of design changes to the The Boeing Company's 737 MAX (“737 MAX”) in the wake of two fatal crashes involving that aircraft.
Presently before the Court are FlyersRights' [21] Motion for Summary Judgment and the FAA's [23] Cross-Motion for Summary Judgment. Upon consider of the pleadings [1] the relevant legal authorities, and the record as a whole, for the reasons stated below, the Court finds that the FAA has satisfied its burden to demonstrate that it properly withheld records pursuant to FOIA Exemption 4, and so shall GRANT the FAA's Cross-Motion for Summary Judgement and DENY FlyersRights' Motion for Summary Judgment.
The 737 MAX is a twin-engine jet airplane manufactured by The Boeing Company (“Boeing”). Def.'s Stmt. ¶ 1. On October 29, 2018, a 737 MAX operated by Lion Air on Flight JT610 crashed after taking off from Jakarta, Indonesia, killing 189 passengers and crew members. Pls.' Stmt. ¶ 1; Def.'s Resp. Stmt. ¶ 1. On March 10, 2019, a 737 MAX operated by Ethiopian Airlines on Flight ET302 similarly crashed after takeoff from Addis Ababa, Ethiopia, killing 157 passengers and crewmembers. Pls.' Stmt. ¶ 1; Def.'s Resp. Stmt. ¶ 1.
Shortly after the second crash, on March 13, 2019, the FAA issued an emergency order prohibiting operation of 737 MAX series airplanes within the territory of the United States and by United States “certificated operators.” Pls.' Stmt. ¶ 2; Def.'s Resp. Stmt. ¶ 2; see Operators of Boeing Company Model 737-8 and Boeing Company Model 737-9 Airplanes: Emergency Order of Prohibition, 84 Fed. Reg. 9, 705 (Mar. 18, 2019). The FAA's emergency order noted that “some similarities” between these two accidents “warrant[ed] further investigation of the possibility of a shared cause for the two incidents that needs to be better understood and addressed.” Id. at 9, 706.
The FAA, which is responsible for the safety and certification of all civil aircraft manufactured and operated in the United States, “instructed Boeing to make certain design changes to the 737 MAX.” Def.'s Stmt. ¶¶ 1, 2; Declaration of Susan Cabler (“Cabler Decl.”) ¶ 7, ECF No. 23-5; see also Pls.' Stmt. ¶ 10. When “a manufacturer makes a major design change to an aircraft model with an existing type certificate, ” it must obtain from the FAA an “amended type certificate.” Cabler Decl. ¶¶ 14, 15. In general terms, the certification process for an airplane design change requires applicants to “show that the changed design complies with the applicable regulations and standards, to provide the means by which such compliance has been shown, and to submit a statement certifying compliance with applicable requirements.” Id. ¶ 17 (citing 14 C.F.R. § 21.20). According to the FAA, proposed design changes by aircraft manufacturers “often consist of information the applicant considers trade secrets or proprietary commercial information.” Id.; see Def.'s Stmt. ¶ 3.
FlyersRights submitted a FOIA request dated October 31, 2019 to the FAA, seeking records concerning the FAA's review of Boeing's design changes to the 737 MAX following the Lion Air and Ethiopian Air crashes. Pls.' Stmt. ¶ 15; Def.'s Stmt. ¶ 5. Specifically, FlyersRights requested the following records on an expedited basis:
Cabler Decl. Ex 1, at Cabler 000100. On December 16, 2019, FlyersRights initiated this action to compel the FAA to produce the requested records on an expedited basis. Pls.' Stmt. ¶ 16; Def.'s Resp. Stmt. ¶ 16. Soon thereafter, on December 23, 20219, FlyersRights filed a motion for a preliminary injunction, seeking to compel its request for expedited processing. See Pls.' Mot. for Prelim. Inj., ECF No. 3.
The FAA performed an initial search for records responsive to FlyersRights' FOIA request and identified 49, 000 pages of responsive materials. Pls.' Stmt. ¶ 17; Def.'s Resp. Stmt. ¶ 17; see Joint Status Rep. (Jan. 13, 2020) at 1, ECF No. 8. The parties subsequently conferred and FlyersRights agreed to narrow its FOIA request to focus on those records upon which the FAA would rely in considering the 737 MAX's “return to service.” Pls.' Stmt. ¶ 17; Def.'s Resp. Stmt. ¶ 17. The FAA reported that 86 records comprising 9, 443 pages were responsive to this narrowed request. Pls.' Stmt. ¶ 17; Def.'s Resp. Stmt. ¶ 17; Joint Status Rep. (Jan. 21, 2020), ECF No. 9. The Court ordered the FAA to provide Plaintiff with a list of the 86 responsive records, indicating the “title, author, recipient, date, and number of pages for each document.” See Minute Order (Jan. 21, 2020). The Court also ordered FlyersRights to submit a status report, informing the FAA and the Court of its requested “prioritization of these documents.” Id. Both parties complied with these directives, see Pls.' Status Rep., ECF No. 10, and Plaintiffs subsequently withdrew the motion for a preliminary injunction, see Pls.' Mot. to Withdraw P.I. Mot., ECF No. 14; Minute Order (Mar. 6, 2020).
The Court also required the FAA to provide to Boeing the documents it had identified as responsive to FlyersRights' FOIA request, and directed that “Boeing shall indicate to [the FAA] over which documents it has objections and over which documents it has no objections.” Order, ECF No. 11. In a joint report dated March 20, 2021, the FAA indicated that it had provided the documents to Boeing, and requested that Boeing identify “(1) which of the documents contain confidential trade secrets or commercial/financial information that it objects to releasing and (2) which of the documents it has no objections.” Joint Progress Rep. (Mar. 20, 2021) ¶ 1, ECF No. 15. In response, Boeing identified 76 documents for which “it objects to the release of information falling under FOIA Exemption 4.” Id. ¶ 2. In the same report, the FAA indicated that it had produced to FlyersRights four documents in full and sixteen documents with names of Boeing employees redacted pursuant to FOIA Exemption 6. See Id. ¶ 3; Pls.' Stmt. ¶ 20; Def.'s Resp. Stmt. ¶ 20.
As of September 2020, the FAA produced to FlyersRights the remaining responsive records, “all of which were redacted almost in their entirety except for cover memos and transmittal letters.” Pls.' Stmt. ¶ 21; Def.'s Resp. Stmt. ¶ 21. On October 9, 2020, the FAA filed a Vaughn Index listing 108 documents. See Vaughn Index, ECF No. 19-1. Of the 108 documents, the FAA released five documents in full with no redactions, released 22 documents with redactions to “Boeing lower-level names” under Exemption 6, released 38 documents with redactions pursuant to Exemption 4 or a combination of Exemptions 4 and 6, and withheld in full 37 documents in full pursuant to Exemption 4 or a combination of Exemptions 4 and 6. See Cabler Decl. ¶ 11; Vaughn Index.
The FAA filed contemporaneously with its Vaughn Index a declaration of Jeffrey Allen, a paralegal in Boeing's Law Department. See Declaration of Jeffrey Allen (“Allen Decl.”), ECF No. 19-2. Mr. Allen indicates that based on Boeing's review of the records identified by the FAA as responsive to FlyersRights' FOIA request, “Boeing has concluded that the majority of documents requested by Plaintiffs contain trade secrets and other proprietary commercial information that Boeing customarily and actually treats as private and that Boeing provided to the FAA under an assurance of privacy." Id. ¶ 7. Specifically, Mr. Allen attests that these documents "contain highly detailed technical information about Boeing products," as well as information about the "methods by which Boeing designs and tests its products in order to obtain certification, along with the logic and techniques Boeing uses to demonstrate compliance," which "also constitute proprietary commercial information." Id. ¶¶ 8, 10. He further avers that the information contained in the responsive records "was provided to the government under an assurance of privacy," which is evident from the "context in which Boeing provided the information and the FAA's historical treatment of such information as confidential." Id. ¶ 16.
FlyersRights filed its...
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