Rojas v. Fed. Aviation Admin.

• Decision Date: 02 March 2021
• Docket Number: No. 17-55036,17-55036
• Citation: 989 F.3d 666
• Parties: Jorge Alejandro ROJAS, Plaintiff-Appellant, v. FEDERAL AVIATION ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

989 F.3d 666

Jorge Alejandro ROJAS, Plaintiff-Appellant,

v.FEDERAL AVIATION ADMINISTRATION, Defendant-Appellee.

No. 17-55036

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 22, 2020 San Francisco, California

March 2, 2021

WATFORD, Circuit Judge:

To ensure greater transparency in the operation of government agencies, the Freedom of Information Act (FOIA) mandates disclosure of nearly all agency records upon request, unless the records fall within one of nine exemptions specified in the Act. See 5 U.S.C. § 552(b)(1)–(9) ; NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). This case involves Exemption 5, which provides that FOIA's disclosure requirements do not apply to "interagency or intra-agency memorandums or letters that would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). The main question before us is what the term "intra-agency" means in this context. Does a document qualify as "intra-agency" only if the author and recipient are employees of the same agency? Or does the term also include, at least in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the agency's functions? We join six of our sister circuits in adopting the latter reading of "intra-agency," dubbed by some the "consultant corollary" to Exemption 5.

I

The plaintiff in this case is Jorge Alejandro Rojas. In March 2015, Rojas applied to the Federal Aviation Administration (FAA) for an entry-level position as an air traffic controller. As part of the application process, he took a computerized test designed to measure certain attributes deemed relevant to success in the position, such as self-confidence, stress tolerance, and teamwork. The parties refer to this test as the "biographical assessment." The FAA rejected Rojas's application in a notice that stated the following: "Based upon your responses to the Biographical Assessment, we have determined that you are NOT eligible for this position as a part of the current vacancy announcement." The notice informed Rojas that the biographical assessment measures "job applicant characteristics that have been shown empirically to predict success as an air traffic controller," and stated that the test "was independently validated by outside experts."

Rojas understandably wanted to learn more about the FAA's use of the biographical assessment as a selection tool—in particular, whether the test had been empirically validated (that is, shown to have the power to predict successful job performance) as the FAA claimed. At the time, little was known about the test, as it had been deployed for the first time during the previous year's hiring cycle, in February 2014, at the recommendation of an outside consulting firm called APTMetrics. The FAA had hired the firm in 2012 to review the agency's hiring process, to propose recommendations for improvement, and to assist the agency in implementing those improvements. APTMetrics developed the biographical assessment as part of that work and, after its debut during the 2014 hiring cycle, revised the test for use in the upcoming 2015 hiring cycle. In early fall of 2014, APTMetrics performed validation work on the revised 2015 version of the test, work that presumably formed the basis for the FAA's claim that the test had been "independently validated by outside experts."

Under FOIA, Rojas asked the FAA to produce documents containing "information regarding the empirical validation of the biographical assessment" mentioned in his rejection notice, including "any report created by, given to, or regarding APTMetrics’ evaluation and creation and scoring of the assessment."

The FAA assigned Rojas's request to four different offices within the agency: Air Traffic Organization, FOIA Program Management Branch, Office of Human Resources, and the Employment and Labor Law Division of the Office of the Chief Counsel. The Office of Human Resources informed Rojas that it had found responsive documents relating to empirical validation of the biographical assessment but was withholding those documents under Exemption 5. The Office of the Chief Counsel similarly informed Rojas that it had located responsive documents but was withholding them under Exemption 5 as well. Following Rojas's administrative appeal of that decision, the Office of the Chief Counsel realized that its search had mistakenly focused on the 2014 biographical assessment, rather than on the 2015 version of the test that was the subject of Rojas's FOIA request. The office conducted a second search, which produced the three documents at issue in this appeal. The FAA informed Rojas that it was withholding all three documents under Exemption 5.

Rojas sued the FAA under FOIA, which authorizes district courts "to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). For reasons that are unclear from the record, Rojas's suit does not challenge the Office of Human Resources’ withholding of documents under Exemption 5. He challenges only the Office of the Chief Counsel's decision to withhold documents under that exemption.

The FAA bears the burden of establishing that the documents it seeks to withhold are covered by Exemption 5. See 5 U.S.C. § 552(a)(4)(B) ; Lahr v. National Transportation Safety Board , 569 F.3d 964, 973 (9th Cir. 2009). The FAA sought to meet that burden by submitting a " Vaughn index," a document that identifies the records being withheld, the exemption invoked to justify withholding, and the reason why each document is subject to the claimed exemption. See Hamdan v. Department of Justice , 797 F.3d 759, 769 n.4 (9th Cir. 2015) (citing Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973) ). The FAA's Vaughn index described the three documents at issue here. For each, the FAA identified APTMetrics as the sender and the FAA's Office of the Chief Counsel as the recipient; stated that the documents’ subject matter was development and validation of the 2015 biographical assessment; invoked Exemption 5 as the ground for withholding; and explained that the documents had been prepared by APTMetrics at the request of lawyers in the Office of the Chief Counsel in anticipation of litigation.

The FAA submitted two declarations providing factual support for its claim that the documents had been prepared in anticipation of litigation and were therefore protected by the attorney work-product privilege. A declaration from a lawyer in the FAA's Office of the Chief Counsel explained that in April 2014, after the agency's use of the biographical assessment during the 2014 hiring cycle, an unsuccessful applicant filed a putative class action against the agency alleging discrimination. In November 2014, the Office of the Chief Counsel asked the Chief Operating Officer of APTMetrics, John Scott, "to summarize elements of his validation work" related to the revised version of the biographical assessment that the agency planned to use during the upcoming 2015 hiring cycle. Scott provided summaries of his validation work in December 2014 and January 2015. According to the declaration, those summaries "were prepared solely at the request and direction of the Office of the Chief Counsel and were not shared with other elements of the [FAA] outside of the Office of the Chief Counsel." Mr. Scott submitted a declaration of his own confirming that APTMetrics had prepared "summaries and explanations" of its validation work at the request of lawyers in the Office of the Chief Counsel.

On the basis of the Vaughn index and supporting declarations, the FAA moved for summary judgment. After reviewing the three documents in camera , as FOIA permits, see 5 U.S.C. § 552(a)(4)(B), the district court granted summary judgment for the FAA. The court held that the documents were properly subject to withholding under Exemption 5 and rejected Rojas's challenges to the adequacy of the agency's search for responsive documents.

A three-judge panel of our court reversed. Rojas v. FAA , 927 F.3d 1046 (9th Cir. 2019). The panel divided on the question whether the documents at issue are covered by Exemption 5. Over Judge Christen's dissent, a majority of the panel held that they are not. The majority declined to adopt the consultant corollary to Exemption 5, which it regarded as inconsistent with the statute's plain text and FOIA's general policy of fostering broad disclosure of agency records. Id. at 1055–58. Because the validation documents the FAA sought to withhold were prepared by an outside consultant rather than by an FAA employee, the majority concluded that the documents do not qualify as "intra-agency memorandums." Id. at 1058. The panel also held, unanimously, that while the FAA was not obligated to search APTMetrics’ records in response to Rojas's FOIA request, the agency failed to establish that the search it conducted of its own records was reasonably calculated to locate all responsive documents. Id. at 1053–54, 1059 (majority opinion); id. at 1060 (Christen, J., concurring in part and dissenting in part). Thus, the panel reversed the district court's entry of summary judgment in the FAA's favor. Id. at 1059–60.

A majority of the non-recused active judges voted to rehear the case en banc, principally to decide whether our circuit should adopt or reject the consultant corollary to Exemption 5.

II¹

Exemption 5 permits an agency to withhold "interagency or intra-agency memorandums or letters that would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). Successful invocation of the exemption requires an agency to show that a document (1) is "inter-agency" or "intra-agency" in character, and (2) consists of material that would be protected as privileged in the civil discovery context. Sears , 421 U.S. at 149, 95 S.Ct. 1504. We...