Jorge Rojas v. Faa ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALEJANDRO ROJAS, No. 17-55036
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-05811-
CBM-SS
FEDERAL AVIATION
ADMINISTRATION,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted En Banc September 22, 2020
San Francisco, California
March 2, 2021
Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber, Kim McLane Wardlaw, Johnnie B. Rawlinson,
Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S.
Ikuta, Paul J. Watford, Andrew D. Hurwitz, Daniel P.
Collins, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Watford;
Concurrence by Judge Collins;
Partial Concurrence and Partial Dissent by Judge Wardlaw;
2 ROJAS V. FAA
Partial Concurrence and Partial Dissent by
Chief Judge Thomas;
Partial Dissent by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Bumatay
SUMMARY *
Freedom of Information Act
The en banc court affirmed in part and vacated in part the
district court’s summary judgment in favor of the Federal
Aviation Administration (“FAA”) in a plaintiff’s Freedom
of Information Act (“FOIA”) action seeking FAA agency
records.
FOIA’s Exemption 5 provides that FOIA’s disclosure
requirements do not apply to “inter-agency 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 FAA’s Office of Chief Counsel informed
plaintiff that it was withholding three documents from his
FOIA requests under Exemption 5. The validation
documents that the FAA sought to withhold were prepared
by an outside consultant rather than by an FAA employee.
The en banc court joined six sister circuits that have
recognized some version of the consultant corollary to
Exemption 5, and held that the term “intra-agency” in
§ 552(b)(5) included, at least in some circumstances,
documents prepared by outside consultants hired by the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROJAS V. FAA 3
agency to assist in carrying out the agency’s functions. The
court held that the relevant inquiry asks whether the
consultant acted in a capacity functionally equivalent to that
of an agency in creating the document or documents the
agency sought to withhold.
Applying these principles, the en banc court concluded
that the consultant, APTMetrics, created the three
documents at issue while performing work in the same
capacity as an employee of the FAA. APTMetrics
represented neither its own interests nor those of any other
client in carrying out its work, and it did not share the
documents with anyone outside the FAA’s Office of Chief
Counsel. With respect to the preparation of the documents,
APTMetrics was operating enough like the FAA’s own
employees to justify calling its own communications with
the FAA “intra-agency.”
Because the documents at issue qualified as intra-agency
memorandums, the en banc court next considered whether
they satisfied Exemption 5’s second requirement that the
documents “would not be available by law to a party . . . in
litigation with the agency.” 5 U.S.C. § 552(b)(5). The court,
agreeing with the district court, held that two of the three
documents listed in the Vaughn index were protected by the
attorney work-product privilege and thus could not be
subject to discovery in civil litigation with the FAA. A
remand, however, was necessary to determine whether the
third document was also protected by privilege; and the court
vacated the district court’s summary judgment for the FAA
as to the third document.
The en banc court addressed plaintiff’s arguments
concerning the adequacy of the FAA’s search for responsive
documents. First, the court held that Supreme Court
precedent foreclosed plaintiff’s contention that the FAA
4 ROJAS V. FAA
should have been required to search APTMetrics’ records for
documents responsive to his FOIA request. Second, the court
held that the declarations submitted by the FAA failed to
show that it conducted a search reasonably conducted to
uncover all relevant documents.
The en banc court remanded for further proceedings.
Judge Collins joined in the majority opinion that adopted
the reading of Exemption 5 endorsed by Justice Scalia in his
dissenting opinion in U.S. Department of Justice v. Julian,
486 U.S. 1 (1988), and wrote separately to respond to the
dissents’ erroneous contentions that Justice Scalia’s reading
of Exemption 5 was “atextual.”
Judge Wardlaw, joined by Chief Judge Thomas and
Judge Hurwitz, concurred in part and dissented in part.
Judge Wardlaw would hold that Exemption 5’s text is crystal
clear: documents or communications exchanged with
outside consultants do not fall within that exemption. She
agreed with the majority that the FAA’s search for records
was inadequate, and joined part III of the majority opinion.
Chief Judge Thomas concurred in part and dissented in
part. He joined Judge Wardlaw’s dissent in full, and also
agreed with the majority opinion’s holding that the FAA did
not meet its burden to show that it conducted an adequate
search for documents responsive to plaintiff’s FOIA request.
He wrote separately to observe that, even if the consultant
corollary formed part of Exemption 5, it would not protect
the specific information sought in this case because the
information was required to be maintained and made
publicly available by the agency.
Judge Ikuta, joined by Judges Graber and Callahan, and
joined by Judge Bumatay except as to footnote 1, dissented
ROJAS V. FAA 5
in part. Judge Ikuta disagreed with the majority’s conclusion
that the declaration submitted by the FAA failed to show that
the agency conducted a search reasonably calculated to
uncover all relevant documents in response to the FOIA
request. In footnote 1, Judge Ikuta stated that she agreed
with the majority’s interpretation of “intra-agency
memorandums or letters” to include documents prepared by
outside consultants hired by the agency to assist its
functions, and she would affirm the summary judgment for
the FAA as to the first two withheld documents, and reverse
as to the third document for the reasons stated in the majority
opinion.
Judge Bumatay concurred in part and dissented in part.
He would hold that FOIA Exemption 5 does not cover
consultant work product, and by its plain text, it does not
protect APTMetric’s documents from disclosure. He agreed
with the majority that the FAA was not required to search
APTMetric’s records for responsive documents, but agreed
with Judge Ikuta’s dissent that the majority was incorrect in
finding that FAA’s search was inadequate.
COUNSEL
Naomi J. Scotten (argued), Orrick Herrington & Sutcliffe
LLP, New York, New York; Michael W. Pearson, Curry
Pearson & Wooten PLC, Phoenix, Arizona; Robert M. Loeb
and Thomas M. Bondy, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; for Plaintiff-Appellant.
Jeffrey E. Sandberg (argued), and Mark B. Stern, Appellate
Staff; Hashim M. Mooppan, Deputy Assistant Attorney
General, Washington, D.C.; Alarice M. Medrano, Assistant
United States Attorney; Dorothy A. Schouten, Chief, Civil
6 ROJAS V. FAA
Division; United States Attorney’s Office, Los Angeles,
California; for Defendant-Appellee.
Katie Townsend, Caitlin Vogus, Adam A. Marshall, Gunita
Singh, and Daniel J. Leon, Reporters Committee for
Freedom of the Press, Washington, D.C., for Amici Curiae
Reporters Committee for Freedom of the Press and 24 Media
Organizations.
Gregg P. Leslie, Samuel Turner, and John Dragovits, First
Amendment Clinic, Arizona State University, Sandra Day
O’Connor College of Law, Phoenix, Arizona, for Amicus
Curiae Project on Government Oversight.
ROJAS V. FAA 7
OPINION
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
(1975). This case involves Exemption 5, which provides
that FOIA’s disclosure requirements do not apply to “inter-
agency 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
8 ROJAS V. FAA
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.”
ROJAS V. FAA 9
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.
10 ROJAS V. FAA
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
ROJAS V. FAA 11
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
12 ROJAS V. FAA
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.
II 1
Exemption 5 permits an agency to withhold “inter-
agency 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. We
address each of these requirements in turn.
A
APTMetrics is not a federal agency in its own right, see
5 U.S.C. §§ 551(1), 552(f)(1), so the three documents it
prepared and sent to the FAA cannot be deemed “inter-
agency” memorandums. At first blush, documents prepared
by APTMetrics would not appear to qualify as “intra-
agency” memorandums either. “Intra” means “within,” and
read in isolation, “the most natural meaning of the phrase
‘intra-agency memorandum’ is a memorandum that is
addressed both to and from employees of a single agency.”
Department of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988)
1
Judges Graber, Rawlinson, Callahan, M. Smith, Ikuta, and Collins
join in this part of the majority opinion.
ROJAS V. FAA 13
(Scalia, J., dissenting). But as is always true when
interpreting statutes, statutory context and purpose matter,
and here we think context and purpose suggest that Congress
had in mind a somewhat broader understanding of “intra-
agency.”
Read in context, the term “intra-agency” in Exemption 5
does not definitively resolve the interpretive question before
us. Even accepting that “intra-agency” refers in this context
to a document generated and kept in-house, that still does not
tell us who counts as being in-house for purposes of the
exemption’s reach. The term could be read as requiring that
both the author and recipient of the document be employees
on the agency’s payroll. But it could just as plausibly be read
to include certain outside consultants whom the agency has
hired to work in a capacity functionally equivalent to that of
an agency employee.
Deciding which of these two interpretations of “intra-
agency” Congress had in mind should be informed, in our
view, by consideration of the purposes served by
Exemption 5. The exemption protects an agency’s internal
communications (as well as communications with other
agencies) if those communications would be protected by
one of the civil discovery privileges, such as the attorney-
client privilege, the attorney work-product privilege, or the
deliberative process privilege. See Sears, 421 U.S. at 149.
Congress concluded that shielding privileged
communications from disclosure was desirable because “the
‘frank discussion of legal or policy matters’ in writing might
be inhibited if the discussion were made public,” with the
consequence that the quality of an agency’s decisions and
policies “would be the poorer as a result.” Id. at 150 (quoting
S. Rep. No. 89-813, at 9 (1965)). In the same vein, the Court
observed in Sears that “those who expect public
14 ROJAS V. FAA
dissemination of their remarks may well temper candor with
a concern for appearances . . . to the detriment of the
decisionmaking process.” Id. at 150–51 (quoting United
States v. Nixon, 418 U.S. 683, 705 (1974)) (emphasis
omitted). In addition, without the protection afforded by
Exemption 5, an agency’s litigation opponents could obtain
under FOIA the same privileged communications they were
barred from obtaining under civil discovery rules. Asked
whether the statute created such an “anomaly,” the Court
said no, stating: “We do not think that Congress could have
intended that the weighty policies underlying discovery
privileges could be so easily circumvented.” United States
v. Weber Aircraft Corp., 465 U.S. 792, 801–02 (1984).
A Congress whose aim was to further the purposes just
discussed would not have limited Exemption 5’s coverage to
communications authored by agency employees. Outside
consultants would presumably be just as hesitant as agency
employees to engage in frank discussion of legal and policy
matters if they know that their advice and analysis may be
made public, with the same detrimental effect on the quality
of the agency’s decision-making. And an agency’s litigation
opponents could use FOIA to circumvent civil discovery
privileges just as effectively whether the privileged
communications to be disclosed were between the agency
and its outside consultants or between agency employees.
Reading Exemption 5 to exclude communications with
outside consultants altogether, as Rojas urges us to hold,
would require us to assume that Congress saddled agencies
with a strong disincentive to employ the services of outside
experts, even when doing so would be in the agency’s best
interests. We see no evidence to support that assumption in
FOIA’s text or its legislative history.
ROJAS V. FAA 15
The implausibility of Rojas’s interpretation of the phrase
“intra-agency memorandums”—as mandating authorship by
agency employees—is illustrated perhaps most starkly in the
context of an agency’s hiring of outside counsel to represent
it in litigation. Under ordinary privilege rules, the agency’s
litigation opponent could not, of course, demand disclosure
of written communications between the agency and its
outside attorney or production of the attorney’s work-
product. Yet under Rojas’s reading of Exemption 5, all of
those otherwise privileged materials would be subject to
public disclosure under FOIA—at the request of the
agency’s litigation opponent or anyone else. It seems
doubtful that Congress intended the term “intra-agency” in
Exemption 5 to exclude outside attorneys, because doing so
would, for all practical purposes, preclude agencies from
relying on the services of outside counsel in most instances.
Indeed, even Rojas appears to acknowledge that outside
attorneys must be deemed “within” an agency for purposes
of Exemption 5, but he offers no principled basis on which
an agency’s outside attorneys could be distinguished from
other outside consultants hired to assist in carrying out the
agency’s functions.
Given these considerations, we do not agree that Rojas’s
reading of the term “intra-agency” is the only textually
permissible interpretation of Exemption 5’s scope. While
we are mindful of our obligation to construe FOIA’s
exemptions narrowly, we must at the same time give them
“a fair reading,” just as we would any other statutory
provision. Food Marketing Institute v. Argus Leader Media,
139 S. Ct. 2356, 2366 (2019). In our view, a fair reading of
the term “intra-agency” is the one acknowledged by the
Supreme Court in Department of Interior v. Klamath Water
Users Protective Association, 532 U.S. 1 (2001). There,
without accepting or rejecting the consultant corollary, the
16 ROJAS V. FAA
Court noted the then-uniform view of lower courts that, in
certain circumstances, “consultants may be enough like the
agency’s own personnel to justify calling their
communications ‘intra-agency.’” Id. at 12. As Justice Scalia
stated in Julian, that reading of Exemption 5 is not only
“textually possible” but also “much more in accord with the
purpose of the provision.” Julian, 486 U.S. at 18 n.1 (Scalia,
J., dissenting). We therefore join the six other circuits that
have recognized some version of the consultant corollary to
Exemption 5. 2
As for identifying those consultants who “may be
enough like the agency’s own personnel to justify calling
their communications ‘intra-agency,’” the Supreme Court’s
decision in Klamath provides helpful guidance. Although
the Court did not endorse the consultant corollary, it distilled
general principles gleaned from lower court decisions that
we think define the outer boundaries of Exemption 5’s reach.
To be deemed “within” an agency for purposes of
Exemption 5, a consultant must be hired by the agency to
perform work in a capacity similar to that of an employee of
the agency, such that “the consultant functions just as an
employee would be expected to do.” Klamath, 532 U.S.
2
See Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971);
Government Land Bank v. General Services Administration, 671 F.2d
663, 665 (1st Cir. 1982); Lead Industries Association, Inc. v. OSHA,
610 F.2d 70, 83 (2d Cir. 1979); Hanson v. U.S. Agency for International
Development, 372 F.3d 286, 292–93 (4th Cir. 2004); Wu v. National
Endowment for Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972);
Stewart v. Department of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009);
cf. Brockway v. Department of Air Force, 518 F.2d 1184, 1194 (8th Cir.
1975) (holding that Exemption 5 includes some witness statements
provided to the Air Force as part of an investigation). The only circuit
arguably to question the validity of the consultant corollary thus far is
the Sixth. See Lucaj v. FBI, 852 F.3d 541, 548–49 (6th Cir. 2017).
ROJAS V. FAA 17
at 10–11. That means the consultant must “not represent an
interest of its own, or the interest of any other client, when it
advises the agency that hires it.” Id. at 11. Its obligations
must be solely “to truth and its sense of what good judgment
calls for.” Id.
Because the scope of Exemption 5 turns on the character
of the document at issue—it is the memorandum or letter that
must be “intra-agency”—these principles should be applied
on a document-by-document basis. The relevant inquiry
asks not whether the “consultant functions just as an
employee would be expected to do” in a general sense, but
rather whether the consultant acted in a capacity functionally
equivalent to that of an agency employee in creating the
document or documents the agency seeks to withhold.
Applying these general principles here, we conclude that
APTMetrics created the three documents at issue while
performing work in the same capacity as an employee of the
FAA. The FAA’s Office of the Chief Counsel asked
APTMetrics to prepare summaries of its validation work to
assist the agency’s lawyers in defending the validity of the
2015 biographical assessment. In creating each of the three
documents, APTMetrics functioned no differently from
agency employees who, although possessing less expertise,
could have been tasked by the FAA’s lawyers with preparing
the same summaries. See Rojas, 927 F.3d at 1063 (Christen,
J., concurring in part and dissenting in part). APTMetrics
represented neither its own interests nor those of any other
client in carrying out its work, and it did not share the
documents with anyone outside the FAA’s Office of the
Chief Counsel, just as agency employees would have been
expected to keep sensitive documents of this sort in-house.
With respect to preparation of the summaries, then,
APTMetrics was operating enough like the FAA’s own
18 ROJAS V. FAA
employees to justify calling its communications with the
FAA “intra-agency.” See Klamath, 532 U.S. at 12. 3
B
Because we conclude that the documents at issue qualify
as intra-agency memorandums, we must next consider
whether they satisfy Exemption 5’s second requirement: that
the documents “would not be available by law to a party . . .
in litigation with the agency.” 5 U.S.C. § 552(b)(5). This
phrase has been construed to incorporate civil discovery
privileges including, as relevant here, the attorney work-
product privilege. See Sears, 421 U.S. at 148–49. After
conducting our own in camera review of the documents at
issue, we agree with the district court that two of the three
documents listed in the Vaughn index are protected by the
attorney work-product privilege and thus would not be
subject to discovery in civil litigation with the FAA.
However, a remand is necessary to determine whether the
third document is also protected by the privilege.
A document is privileged as attorney work-product when
it was prepared (1) “in anticipation of litigation or for trial,”
and (2) “by or for another party or by or for that other party’s
3
A different result might follow if the documents at issue had been
the validation studies themselves. According to the FAA, APTMetrics
performed the validation work in its capacity as an “outside expert” hired
to provide independent validation of the 2015 biographical assessment.
As APTMetrics’ outsider status was essential to this work, APTMetrics
could not have acted in a capacity equivalent to that of the FAA’s own
employees when it validated the test. Put differently, it is far from clear
that an agency may tout the independent validation provided by “outside
experts” and at the same time claim that those experts are “within” the
agency for purposes of Exemption 5.
ROJAS V. FAA 19
representative.” In re Grand Jury Subpoena, 357 F.3d 900,
907 (9th Cir. 2004).
As to the first requirement, the FAA’s declarations
adequately explained why two of the three documents were
prepared in anticipation of litigation. In April 2014, an
unsuccessful applicant for a position as an air traffic
controller filed a complaint against the FAA on behalf of a
class of other unsuccessful applicants. In November 2014,
lawyers in the FAA’s Office of the Chief Counsel asked
APTMetrics to prepare “summaries and explanations” of the
work it had done to validate the revised 2015 version of the
biographical assessment. According to the declarations
submitted by the FAA, APTMetrics sent its initial response
to the Office of the Chief Counsel in December 2014 and
followed up with a supplemental response in January 2015.
As Rojas notes, the April 2014 complaint challenged the
FAA’s use of the 2014 version of the biographical
assessment, not the 2015 version of the test that is the subject
of the documents at issue. But the FAA planned to use a
revised version of the 2014 test to perform a similar
screening function during the 2015 hiring cycle, so it was
reasonable for the agency to anticipate litigation concerning
use of the revised 2015 biographical assessment as well. The
documents that APTMetrics sent to the Office of the Chief
Counsel in December 2014 and January 2015 were prepared
in anticipation of that litigation.
The FAA’s declarations do not address the one
remaining document, which is described in the Vaughn
index as a document prepared by APTMetrics dated
September 2, 2015. The declaration from the FAA’s lawyer
states that the Office of the Chief Counsel received
responses to its request for summaries of APTMetrics’
validation work in December 2014 and January 2015. It
20 ROJAS V. FAA
makes no mention of a third document received at a later
date. Moreover, in camera review of the document suggests
that it may have been drafted as a response to a request for
information from an outside third party, rather than as an
internal memorandum from APTMetrics to the FAA’s
lawyers. As a result, on this record the FAA failed to carry
its burden of establishing that this document was prepared in
anticipation of litigation.
Rojas objects that, even if APTMetrics’ December 2014
and January 2015 summaries qualify as attorney work-
product, the firm did not conduct the underlying validation
studies in anticipation of litigation. But application of the
attorney work-product privilege does not turn on whether the
records underlying the summaries were created in
anticipation of litigation. What matters is that the summaries
themselves were created in anticipation of litigation, since
those are the documents the FAA seeks to withhold.
Regarding the privilege’s second requirement, the
December 2014 and January 2015 summaries were prepared
for the FAA by APTMetrics. The work-product privilege
covers not only documents prepared by a party but also
documents prepared by others acting on the party’s behalf.
United States v. Nobles, 422 U.S. 225, 238–39 & n.13
(1975); see also Fed. R. Civ. Proc. 26(b)(3)(A) (listing a
party’s “consultant” among those who may prepare a
document subject to work-product protection). That the
summaries were prepared by APTMetrics on the FAA’s
behalf, rather than by the FAA itself, poses no barrier to
application of the work-product privilege.
Because the December 2014 and January 2015
validation summaries are intra-agency memorandums that
would be subject to the attorney work-product privilege in
litigation with the FAA, the FAA properly withheld them
ROJAS V. FAA 21
under Exemption 5. We vacate the district court’s entry of
summary judgment for the FAA as to the third document,
dated September 2, 2015, and remand for further
proceedings with respect to that document.
III 4
Rojas raises two arguments concerning the adequacy of
the FAA’s search for responsive documents. We agree with
the three-judge panel’s unanimous resolution of both
arguments.
First, Rojas contends that the FAA should have been
required to search APTMetrics’ records for documents
responsive to his FOIA request, since such a search would
undoubtedly have turned up the data underlying
APTMetrics’ validation work as well as the validation
studies themselves, rather than just the summaries of those
studies included in the FAA’s Vaughn index. Like the three-
judge panel, we are sympathetic to Rojas’s argument. See
Rojas, 927 F.3d at 1059. It seems counterintuitive to hold
that an outside consultant may be deemed “within” a federal
agency for purposes of invoking Exemption 5, but that
documents created by the consultant on the agency’s behalf
may be outside the scope of the search FOIA requires.
Nonetheless, existing Supreme Court precedent forecloses
Rojas’s contention.
FOIA authorizes a court to compel disclosure of “agency
records.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has
held that agency records must have been created or obtained
by the agency and must be in the agency’s control at the time
4
Chief Judge Thomas and Judges Wardlaw, Rawlinson, M. Smith,
Hurwitz, and Collins join in this part of the majority opinion.
22 ROJAS V. FAA
the FOIA request is made. Department of Justice v. Tax
Analysts, 492 U.S. 136, 144–45 (1989). Documents that are
not in an agency’s possession do not constitute “agency
records” even if the agency could have obtained them by
asking a third party to produce them. Id. at 144. Given this
precedent, the FAA properly limited the scope of its search
to records in the agency’s possession; it had no obligation to
search records in APTMetrics’ possession.
Second, Rojas argues that the declarations submitted by
the FAA fail to show that it “conducted a search reasonably
calculated to uncover all relevant documents,” as our cases
require. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.
1985). To satisfy this requirement, the FAA’s declarations
had to be “nonconclusory” and “relatively detailed in their
description of the files searched and the search procedures”
followed. Id. at 573. But here, the FAA submitted just one
declaration describing the scope of the search, and it stated
only that the search conducted by the Office of the Chief
Counsel “was reasonably calculated to obtain responsive
records because the attorneys who provided legal advice
related to the revisions to the [air traffic controller] hiring
process were asked to review their records.”
The FAA’s declaration falls short of what our cases
require because it offers no details about how the search was
conducted. For example, it does not describe, even in
general terms, the number of attorneys involved, the search
methods they used, the body of records they examined, or
the total time they spent on the search. Cf. Lane v.
Department of Interior, 523 F.3d 1128, 1139 (9th Cir. 2008);
Citizens Commission on Human Rights v. FDA, 45 F.3d
1325, 1328 (9th Cir. 1995). Without details such as these,
we are in no position to conclude that the agency’s search
was reasonably calculated to locate all responsive records.
ROJAS V. FAA 23
See Steinberg v. Department of Justice, 23 F.3d 548, 551–52
(D.C. Cir. 1994) (declaration found inadequate because it
“fail[ed] to describe in any detail what records were
searched, by whom, and through what process”).
* * *
We join six of our sister circuits in adopting the
consultant corollary to Exemption 5, and we hold that the
FAA properly withheld two of the three documents at issue
here under that exemption. However, the FAA did not
establish that the remaining document is protected by the
attorney work-product privilege, and the agency failed to
show that it conducted a search reasonably calculated to
locate all documents responsive to Rojas’s FOIA request.
We vacate the district court’s entry of summary judgment in
the FAA’s favor and remand for further proceedings
consistent with this opinion.
Rojas’s motion for judicial notice (Dkt. No. 7) is
DENIED.
AFFIRMED in part, VACATED in part, and
REMANDED for further proceedings.
The parties shall bear their own costs.
COLLINS, Circuit Judge, concurring:
I concur in the majority opinion, which adopts the
reading of Exemption 5 endorsed by Justice Scalia (joined
by two other Justices) in his dissenting opinion in United
States Department of Justice v. Julian, 486 U.S. 1 (1988).
Under that reading, Exemption 5’s reference to “intra-
24 ROJAS V. FAA
agency memorandums” extends to “one that has been
received by an agency, to assist it in the performance of its
own functions, from a person acting in a governmentally
conferred capacity,” such as a “consultant to the agency.”
Id. at 18 n.1 (Scalia, J., dissenting). 1 I write separately to
respond to the dissents’ erroneous contentions that Justice
Scalia’s reading of Exemption 5 is “atextual,” see Wardlaw
Dissent at 33; that it “rewrites” Exemption 5, see id.; that it
uses “legislative purpose to override statutory text,” see
Bumatay Dissent at 58; and that, ultimately, he (and we)
“simply made it up,” id. at 61.
I
The relevant text of Exemption 5 states that FOIA’s
disclosure requirements do not apply to “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation
with the agency.” 5 U.S.C. § 552(b)(5). The dissents
assume that, by using the term “intra-agency,” the statute is
“crystal clear” in referring only to memoranda prepared by
“‘employees of a single agency,’” see Wardlaw Dissent
at 35, 36 (emphasis added) (citation omitted), and “leave[s]
no room for documents created by those outside of an
1
In Julian, the Supreme Court held that, even assuming that the
documents in question were “‘inter-agency’ records for purposes of
Exemption 5,” see 486 U.S. at 11 n.9, they were not exempt from
disclosure because, at least as to the requesters in that case, the additional
requirements of Exemption 5 were not met, see id. at 11–14. Justice
Scalia dissented from that latter holding, and as a result, his dissent had
to address the issue of whether Exemption 5 was inapplicable on the
alternative ground that the documents were “not ‘inter-agency or intra-
agency memorandums’ within the meaning of Exemption 5.” Id. at 18
n.1 (Scalia, J., dissenting); see also id. at 11 n.9 (majority opinion)
(majority did “not find it necessary” to reach this issue).
ROJAS V. FAA 25
agency’s employment,” see Bumatay Dissent at 53
(emphasis added). But as Justice Scalia recognized, to the
extent that this employment-based reading might seem to be
the “most natural meaning of the phrase ‘intra-agency
memorandum,’” that is true only if one examines that phrase
“[a]part from its present context.” Julian, 486 U.S. at 18 n.1
(Scalia, J., dissenting) (emphasis added). Here, there are two
features of the statutory text that, considered in context,
point away from the dissents’ narrow, employment-based
reading of Exemption 5.
First, the dissents overlook the fact that the actual words
of the statute require only that the “memorandum[]” be
“intra-agency,” not necessarily that the authors and
recipients be formal employees of that agency. 5 U.S.C.
§ 552(b)(5) (emphasis added). As the Supreme Court
recognized in Department of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1 (2001), this feature of the
statutory language plainly allows for a reading under which
“consultants may be enough like the agency’s own personnel
to justify calling their communications ‘intra-agency.’” Id.
at 12 (emphasis added). 2 Thus, while the Court in Klamath
did not decide whether Justice Scalia’s reading of Exemption
5 was correct, see 532 U.S. at 12 (specifically reserving the
question), the Court recognized that, at the very least, Justice
Scalia was right in contending that his view rested on a
“permissible . . . reading of the statue,” Julian, 486 U.S.
2
The Supreme Court’s apt phrasing of this alternative permissible
reading refutes the dissents’ strawman arguments that this construction
rests either on a “geographical” or “location” condition, see Bumatay
Dissent at 55 n.5, or on the view that any document in the agency’s
possession (from any source) is, without more, an “intra-agency”
memorandum, see Wardlaw Dissent at 44–44. Nothing in Justice
Scalia’s dissent in Julian, or in the Supreme Court’s description of his
view in Klamath, adopts the dissents’ caricatures.
26 ROJAS V. FAA
at 18 n.1 (Scalia, J. dissenting) (emphasis added). As the
Klamath Court explained, the reason why consultants might
be enough like employees “to justify calling their
communications ‘intra-agency’” is that “the consultant does
not represent an interest of its own, or the interest of any
other client, when it advises the agency that hires it. Its only
obligations are to truth and its sense of what good judgment
calls for, and in those respects the consultant functions just
as an employee would be expected to do.” 532 U.S. at 11–
12 (emphasis added). 3 Accordingly, the dissents’ contention
that the words of the statute “clearly” and “precisely” require
authorship by a formal employee—as opposed to someone
acting in some other “governmentally conferred capacity,”
Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting)—is simply
incorrect. See Wardlaw Dissent at 35–35; Bumatay Dissent
at 35–36. 4
Second, the dissents overlook the remainder of the
statutory language in Exemption 5, which further elucidates
the types of documents protected by that provision. The
intra-agency memorandums covered by Exemption 5 are
those “that would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5) (emphasis added). As the text suggests, this
3
By contrast, Klamath held that the same was not true with respect
to a self-interested party who communicates with an agency to further its
own, independent interests, and such a party’s communications with the
agency thus could not be said to be “intra-agency.” 532 U.S. at 12–13.
4
For the same reason, Judge Bumatay is wrong in suggesting that it
is “not clear how else Congress could have expressed its rejection” of
Justice Scalia’s view. See Bumatay Dissent at 60. Had Congress wanted
to limit the excluded memoranda to only those authored by agency
“employees,” it could certainly have added language specifically stating
that.
ROJAS V. FAA 27
language “simply incorporates civil discovery privileges.”
United States v. Weber Aircraft Corp., 465 U.S. 792, 799
(1984); see also NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 154 (1975) (“It is equally clear that Congress had the
attorney’s work-product privilege specifically in mind when
it adopted Exemption 5[.]”). Consequently, in determining
whether a communication is within the agency for purposes
of Exemption 5, it makes sense to consider whether the
communication to the agency is from a person whose
“governmentally conferred capacity,” Julian, 486 U.S. at 18
n.1 (Scalia, J., dissenting), is one that can bring it within the
agency’s litigation privileges. On that score, it is highly
relevant that “there is no question that litigants need not
produce materials covered by the attorney-client privilege or
documents that constitute attorney work-product, including
those prepared by the party’s agents and consultants.”
Rojas v. FAA, 927 F.3d 1046, 1062 (9th Cir. 2019) (Christen,
J., concurring in part and dissenting in part) (emphasis
added) (collecting cases). 5
The dissents nonetheless argue that Exemption 5 should
be restricted to employee-authored memoranda because,
unlike Exemptions 4 and 8, the text of Exemption 5 does not
expressly refer to documents from non-employees. See
Wardlaw Dissent at 35–36; Bumatay Dissent at 58 n.6. But
it is of no relevance that the very different categories of
documents covered by Exemption 4, 5 U.S.C. § 552(b)(4)
(“trade secrets and commercial or financial information
5
Contrary to what the dissents suggest, this does not mean that the
term “‘intra-agency’ does no work at all.” See Bumatay Dissent at 55
n.5; see also Wardlaw Dissent at 44. It simply means that, in choosing
between two permissible readings of “intra-agency,” one should not lose
sight of the entirety of the statutory language and what it reveals about
the statute’s purpose.
28 ROJAS V. FAA
obtained from a person and privileged or confidential”), and
Exemption 8, id. § 552(b)(8) (matters “contained in or
related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions”), use language that includes various types of
documents created by persons that everyone would agree are
outsiders. Exemption 5 does not follow the same approach
and therefore would not be expected to use similar language.
It instead applies to “intra-agency memorandums,” and the
question here is what communications by whom and for
what purpose count as such. Put another way, the fact that
Exemption 5 does not broadly sweep in certain categories of
outsider-created documents does not somehow mean that
only employee-authored documents count as “intra-agency”
documents. Because the wording and aim of the provisions
are so different, this is not a situation in which Congress
otherwise used very similar language in multiple different
provisions, but then chose to omit a particular term in one of
those multiple instances. Cf. Russello v. United States,
464 U.S. 16, 23 (1983). Here, the wording of the three
exemptions is so completely dissimilar that the comparative
inference the dissents try to draw is unwarranted.
The dissents are thus wrong in contending that
Exemption 5’s reference to “intra-agency memorandums”
excludes, as a textual matter, the broader reading of
Exemption 5 adopted by Justice Scalia in Julian.
II
Moreover, as Justice Scalia also recognized, his refusal
to read Exemption 5 as limited to employee-authored
documents is not only a “permissible” reading but a
“desirable” one. Julian, 486 U.S. at 18 n.1 (Scalia, J.,
dissenting). Limiting the provision to only those documents
ROJAS V. FAA 29
authored by formal employees “excludes many situations
where Exemption 5’s purpose of protecting the
Government’s deliberative process is plainly applicable.”
Id. It is therefore “textually possible and much more in
accord with the purpose of the provision, to regard as an
intra-agency memorandum one that has been received by an
agency, to assist it in the performance of its own functions,
from a person acting in a governmentally conferred capacity
other than on behalf of another agency.” Id. And in the case
before us, as in Julian, “[h]ere we have . . . memorand[a] that
fit[] readily within this definition.” Id.
The dissents contend that this consideration of the
“purpose” of Exemption 5 disregards “the textualist
revolution,” see Wardlaw Dissent at 38, and amounts to an
“‘escape route from the prison of the text,’” see Bumatay
Dissent at 54 (quoting Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 19 (2012)
(“Reading Law”)). These charges are unfounded, as is the
contention that Justice Scalia in Julian betrayed the very
“principles that [he] spent a lifetime advocating,” see id.
at 12.
The “fair reading” method of textualism that Justice
Scalia endorsed “requires an ability to comprehend the
purpose of the text, which is a vital part of its context.”
Reading Law, supra, at 33. “But the purpose is to be
gathered only from the text itself, consistently with the other
aspects of its context.” Id. (emphasis added). Here, of
course, the purpose of Exemption 5 to protect the
Government’s litigation privileges is express on the face of
the statute itself, which explicitly describes the exemption in
terms of when a document “would not be available by law to
a party . . . in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). It is no lapse into purposivism to insist that, in
30 ROJAS V. FAA
choosing among the permissible readings that the text will
bear, a “textually permissible interpretation that furthers
rather than obstructs the [statute’s] purpose should be
favored.” Reading Law, supra, at 63. The dissents’
employment-based reading of “intra-agency
memorandums” would plainly obstruct Exemption 5’s
purpose to protect the Government’s litigation privileges,
and because there is a permissible reading of the text that
avoids this outcome, it is to be preferred. 6
Neither dissent seriously disputes that the employee-
only reading of Exemption 5 would impede its express
purpose by, for example, requiring disclosure of attorney-
client communications with any outside counsel. Judge
Bumatay instead sidesteps the problem by noting that
attorney-client materials are not at issue on the particular
facts of this case and that the FAA presumably does not rely
on outside counsel. See Bumatay Dissent at 62–63. But
FOIA has a wide reach, and there are entities (such as, for
example, the FDIC) that count as “agencies” for purposes of
FOIA and that use outside counsel frequently enough to have
6
Judge Bumatay is also wide of the mark in chastising the majority
for supposedly “rel[ying] on legislative history to determine Congress’s
purpose in enacting FOIA exemptions.” See Bumatay Dissent at 59. The
referenced portion of the majority opinion quotes a Supreme Court case
identifying the “purpose” of Exemption 5 based on the Supreme Court’s
reliance on legislative history. See Maj. Opin. at 13–14 (quoting Sears,
421 U.S. at 150). I share Justice Scalia’s criticism of the use of
legislative history, but as a judge of an “inferior Court[]” to the “one
supreme Court,” see U.S. CONST. art. III, § 1, I cannot fault the majority
for faithfully following controlling Supreme Court precedent telling us
what the purpose of Exemption 5 is, even if that precedent relies on
legislative history. And, as I have explained, the text of Exemption 5
itself amply confirms the Supreme Court’s point in Sears that Exemption
5’s purpose is to protect confidential communications protected by “civil
discovery privileges.” See Maj. Opin. at 13.
ROJAS V. FAA 31
written guidelines on the subject. See FDIC, “Information
for Prospective Outside Counsel,” . 7
Judge Wardlaw, by contrast, does not avoid the
implications of the employee-only reading of Exemption 5.
Instead, to the extent that this reading would allow FOIA to
vitiate “even attorney-client materials,” Judge Wardlaw
views that as simply the price to pay to “ensure[] that the
workings of the Executive Branch are transparent to the
American people.” See Wardlaw Dissent at 44–46. Indeed,
Judge Wardlaw erroneously disregards the purpose of
Exemption 5 altogether, treating it as always subordinate to
FOIA’s overarching aim of disclosure—so much so that,
under her view, we must adopt any pro-disclosure reading of
the text, apparently without regard to any other textual
canons. See id. at 41. This flawed analysis overlooks the
fact that FOIA’s “exemptions are as much a part of FOIA’s
purposes and policies as the statute’s disclosure
requirement.” Food Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356, 2366 (2019) (simplified); see also Reading
Law, supra, at 168 (“[L]imitations on a statute’s reach are as
much a part of the statutory purpose as specifications of what
is to be done.”). And here, of course, it is the text of an
exemption that is at issue.
7
Judge Bumatay suggests that the implications of his position may
not be as ominous as they seem for such agencies, because he speculates
that maybe all of their outside counsel are actually formally designated
as “special Government employees.” See Bumatay Dissent at 63 n.9.
However, he cites nothing to support this speculation, which seems at
odds with the FDIC’s outside-counsel handbook as well as with the
applicable FDIC regulations, which designate them as “contractors.” See
12 C.F.R. pt. 366.
32 ROJAS V. FAA
III
Because Justice Scalia’s reading of Exemption 5 is both
“textually possible and much more in accord with the
purpose of the provision,” Julian, 486 U.S. at 18 n.1 (Scalia,
J., dissenting), I agree with the majority’s endorsement of
that reading. And the dissents are thus wrong in insisting
that the statutory text requires this court to create a 6–1
circuit split by jettisoning 50 years of settled case law that
Congress has never seen fit to reject. 8 Cf. Monessen Sw. Ry.
Co. v. Morgan, 486 U.S. 330, 338 (1988) (“Congress’ failure
to disturb a consistent judicial interpretation of a statute may
provide some indication that Congress at least acquiesces in,
and apparently affirms, that interpretation.” (simplified)).
8
Judge Wardlaw wrongly contends that the Sixth Circuit in Lucaj v.
FBI, 852 F.3d 541 (6th Cir. 2017), “cast serious doubt on whether the
consultant corollary can be found in Exemption 5’s text.” See Wardlaw
Dissent at 39. The target of the Sixth Circuit’s criticism was the distinct
(and much broader) “common-interest doctrine,” on which the FBI had
relied in that case. 852 F.3d at 547–48. In rejecting the FBI’s contention,
the Sixth Circuit reasoned that “when the Department of the Interior
made the same argument in Klamath, the Supreme Court rejected it.” Id.
at 548. Given that the Supreme Court in Klamath expressly declined to
reject the so-called “consultant corollary,” the “same argument” that was
rejected by both the Sixth Circuit and the Supreme Court cannot have
been that doctrine. Rather, as the Sixth Circuit explained, it and the
Supreme Court rejected the view “‘that “intra-agency” is a purely
conclusory term, just a label to be placed on any document the
Government would find it valuable to keep confidential’”—which is a
fair description of the common-interest doctrine. Id. (quoting Klamath,
532 U.S. at 12). As a result, with today’s en banc decision, there is now
no circuit split on the “consultant corollary.”
ROJAS V. FAA 33
WARDLAW, Circuit Judge, with whom THOMAS, Chief
Judge, and HURWITZ, Circuit Judge, join, concurring in
part and dissenting in part:
Less than two years ago, the Supreme Court
reemphasized that federal courts must interpret and apply
FOIA in accordance with that statute’s plain text and
structure. See Food Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356, 2362–63 (2019). That lesson rings
particularly true when, as here, FOIA’s plain text aligns with
FOIA’s presumption of government transparency. See
Milner v. Dep’t of Navy, 562 U.S. 562, 571 (2011). But
today, the majority ignores these principles, embraces an
atextual “consultant corollary” doctrine, and, in doing so,
rewrites FOIA Exemption 5. For these reasons, I
1
respectfully dissent.
I.
FOIA grants the public a qualified statutory right of
access to federal agency “records.” See 5 U.S.C.
§ 552(a)(3)(A), (b). Thus, when a member of the public
“requests” records from an agency, the agency must disclose
those records “unless they fall within one of nine
exemptions.” Milner, 562 U.S. at 565.
Exemption 5, at issue here, shields from disclosure
“inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency
in litigation with the agency . . . .” 5 U.S.C. § 552(b)(5). By
its plain terms then, this exemption applies only if the
“communication” being sought is “inter-agency or intra-
agency.” Dep’t of Interior v. Klamath Waters Users
1
Because I agree with the majority that the FAA’s search for records
was inadequate, I join part III of the majority opinion.
34 ROJAS V. FAA
Protective Ass’n, 532 U.S. 1, 9 (2001). The majority rightly
acknowledges that the documents sought here are not “inter-
agency” because APTMetrics—the outside consulting firm
that prepared these documents—is “not a federal agency in
its own right.” Maj. Op. at 12. Thus, this case hangs on
whether the documents APTMetrics prepared and
transmitted to the FAA count as “intra-agency”
memorandums or letters.”
In answering that question, the “proper starting point lies
in a careful examination of the ordinary meaning and
structure of the law itself.” Argus Leader, 139 S. Ct. at 2364.
We therefore turn to FOIA’s text. FOIA itself defines the
term “agency.” 5 U.S.C. §§ 551(1), 552(f). “With
exceptions not relevant here,” that word “means ‘each
authority of the Government of the United States,’ and
‘includes any executive department, military department,
Government corporation, Government controlled
corporation, or other establishment in the executive branch
of the Government . . . , or any independent regulatory
agency.’” Klamath, 532 U.S. at 9 (quoting 5 U.S.C.
§§ 551(1), 552(f)). Nothing in this definition provides a
textual hook for thinking of outside contractors as part of a
federal agency.
As for “intra,” FOIA nowhere defines that term. “So, as
usual” and as with other “undefined terms in FOIA[,]” we
look to this term’s “ordinary, contemporary, common
meaning [] when Congress enacted FOIA in 1966.” Argus
Leader, 139 S. Ct. at 2362 (internal quotation marks and
citations omitted). Much as it does now, the term “intra”
then meant “in” or “within,” Black’s Law Dictionary 957
(Rev. 4th Ed. 1968); Webster’s Seventh New Collegiate
Dictionary 444 (1961), or perhaps “in the interior,”
Webster’s Second New Int’l Dictionary of the Eng.
ROJAS V. FAA 35
Language 1302 (1959). Coupled with FOIA’s definition of
“agency,” the term “intra-agency” clearly signals the idea of
being “in” or “within” a federal agency. The question then
becomes what Congress meant when it joined that
understanding of “intra-agency” to the words
“memorandums or letters.”
In this regard, the Supreme Court has acknowledged that
“the most natural meaning of the phrase ‘intra-agency
memorandum’ is a memorandum that is addressed both to
and from employees of a single agency.” Klamath, 532 U.S.
at 9 (internal quotation marks and citation omitted). In other
words, intra-agency memorandums and letters are circulated
within—and only within—an agency. This makes good
sense, for “[n]either the terms of [Exemption 5] nor the
statutory definitions say anything about communications
with outsiders.” Id.; see also John C. Brinkerhoff Jr.,
FOIA’s Common Law, 36 Yale J. on Reg. 575, 583 (2019)
(“It is doubtful that any reasonable reading of ‘inter-agency
or intra-agency’ could encompass third parties.”).
Exemption 5’s silence on communications and
documents from outsiders is especially notable because
other FOIA exemptions explicitly include such
communications and documents. Exemptions 4 and 8
expressly encompass information generated outside of a
federal agency. See 5 U.S.C. § 552(b)(4) (permitting the
withholding of “trade secrets and commercial or financial
information obtained from a person and privileged or
confidential” (emphasis added)); id. § 552(b)(8) (shielding
from disclosure information “contained in or related to
examination, operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions” (emphasis
added)). Congress thus knew how to specify that FOIA
36 ROJAS V. FAA
exemptions cover documents from outside third parties, and
it did so in these other exemptions. See Dep’t of Homeland
Sec. v. MacLean, 574 U.S. 383, 392 (2015). That
Exemptions 4 and 8 explicitly speak to this issue—but
Exemption 5 does not—makes clear that Exemption 5
applies only to records that originate and remain inside the
federal government.
What’s more, reading “intra-agency memorandums or
letters” to cover the exchange of documents within a federal
agency runs parallel to the judicial interpretation of “inter-
agency . . . memorandums or letters.” With the word “inter-
agency,” “Congress plainly intended to permit one agency
possessing decisional authority to obtain written
recommendations and advice from a separate agency not
possessing such decisional authority without requiring that
the advice be any more disclosable than similar advice
received from within the agency.” Renegotiation Bd. v.
Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975).
Congress thus permitted the withholding of memorandums
or letters exchanged “between” agencies, just as its use of
the word “intra-agency” allows for the withholding of
memorandums or letters exchanged “within” agencies.
In short, Exemption 5’s text is crystal clear: documents
or communications exchanged with outside consultants do
not fall within that exemption. For “outside consultants” are,
by definition, not “within” a federal agency. They are
independent contractors, hired to assist an agency with a
finite task that the agency has decided to outsource. Indeed,
APTMetrics and its employees may have worked alongside
the FAA’s employees in this case, but it and its employees
are not an arm of the Executive Branch. Our judicial inquiry
should thus be at an end. Argus Leader, 139 S. Ct. at 2364.
ROJAS V. FAA 37
II.
“So where did the [consultant corollary] come from?”
Id. (emphasis in original). The answer is a piece of
untethered dicta (Footnote 44 to be exact) in a D.C. Circuit
case from the early 1970’s. See Soucie v. David, 448 F.2d
1067, 1078 n.44 (D.C. Cir. 1971). Footnote 44 spoke into
existence the consultant corollary without examining either
Exemption 5’s text or FOIA’s overarching structure. 2 The
Soucie court instead sought to discern Congress’s purpose in
enacting Exemption 5, and then considered what other
situations not covered by Exemption 5’s text could benefit
from a similar rationale. Yet, as we all know by now, such
an “approach is a relic from a bygone era of statutory
construction.” Argus Leader, 139 S. Ct. at 2364 (internal
quotation marks and citation omitted).
Still, “judicial inertia” proved a powerful thing. Rojas v.
Fed. Aviation Admin., 927 F.3d 1046, 1057 (9th Cir. 2019),
reh’g en banc granted. What Soucie’s Footnote 44 set in
motion, the Fifth Circuit continued in Wu v. National
Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972).
Again, that court did not bother to confront Exemption 5’s
text or FOIA’s structure. Id. at 1032. It simply quoted
Soucie and moved along. Id. The First and Second Circuits
soon fell in line, relying on Soucie, Wu, and later Fifth
2
Footnote 44 states: “The rationale of the exemption for internal
communications indicates that the exemption should be available in
connection with the Garwin Report even if it was prepared for an agency
by outside experts. The Government may have a special need for the
opinions and recommendations of temporary consultants, and those
individuals should be able to give their judgments freely without fear of
publicity. A document like the Garwin Report should therefore be
treated as an intra-agency memorandum of the agency which solicited
it.” Soucie, 448 F.2d at 1078 n.44.
38 ROJAS V. FAA
Circuit cases that cited Wu rather than conducting any sort
of textual or structural analysis for themselves. See Gov’t
Land Bank v. Gen. Servs. Admin., 671 F.2d 663, 665 (1st Cir.
1982); Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70, 83 (2d
Cir. 1979). Meanwhile, the D.C. Circuit paid lip service to
Exemption 5’s text in Ryan v. Department of Justice,
617 F.2d 781 (D.C. Cir. 1980), but interpreted that text “in
light of [Exemption 5’s] purpose,” id. at 789, which it
divined from legislative history, and the judicial “common
sense” espoused in Wu and Soucie, id. at 790 & n.30; see
also Brinkerhoff, supra, at 614 (“[O]nce a court made an
initial interpretation, others could simply cite that decision
rather than re-explain the tensions between FOIA’s text and
diverging doctrine.”).
The Supreme Court watched these developments from a
distance. In 1988, in the early days of the textualist
revolution, three dissenting justices suggested in a footnote
without much analysis that the consultant corollary doctrine,
though not the “most natural meaning” of Exemption 5, was
“a permissible and desirable reading of the statute.” U.S.
Dep’t of Just. v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J.,
dissenting). Those justices did not, however, explain why
this meaning was “textually possible,” what “the purpose of”
Exemption 5 was, or why that purpose should trump the
exemption’s plain text. Id.
Thirteen years later in Klamath, a unanimous Court
brought this debate into somewhat sharper focus. On the one
hand, it acknowledged that “neither the terms of
[Exemption 5] nor the statutory definitions say anything
about communications with outsiders.” Klamath, 532 U.S.
at 9. It further affirmed that the words “inter-agency or intra-
agency” in Exemption 5 are not “purely conclusory term[s]”
and that there exists no “textual justification for draining the
ROJAS V. FAA 39
[inter-agency or intra-agency requirement] of independent
vitality.” Id. at 12. On the other hand, the Court quoted the
footnote in Justice Scalia’s Julian dissent to highlight the
previously advanced argument in favor of the consultant
corollary doctrine. See id. at 9–10. But the Court had no
occasion to settle this controversy in Klamath, see id. at 12,
and resolved that case on other grounds, see id. at 12–15.
The debate surrounding the consultant corollary doctrine
and its variants has remained unsettled in the wake of
Klamath. One court of appeals has fallen in line with the
Soucie consensus, though based on a clear misreading of
Klamath. See Stewart v. U.S. Dep’t of Interior, 554 F.3d
1236, 1244 (10th Cir. 2009) (stating incorrectly that Klamath
had definitively “recogniz[ed] that Exemption 5 extends to
government agency communications with paid
consultants”). Another applied the doctrine without
analyzing Klamath at all, Hanson v. U.S. Agency for Int’l
Dev., 372 F.3d 286, 291–94 (4th Cir. 2004), and, over a
dissent, has since extended Exemption 5 even further, far
beyond the bounds of the consultant corollary, Hunton &
Williams v. U.S. Dep’t of Just., 590 F.3d 272, 279–80 (4th
Cir. 2010). Only the Sixth Circuit has bucked the Soucie
trend and, at the least, cast serious doubt on whether the
consultant corollary can be found in Exemption 5’s text. See
Lucaj v. Fed. Bureau of Invest., 852 F.3d 541, 548–49 (6th
Cir. 2017) (refusing to read Exemption 5’s plain text to
embrace the common interest doctrine and implying that the
consultant corollary suffers from similar defects).
Meanwhile, even within circuits that have embraced the
consultant corollary, there remain clear misgivings. See,
e.g., Nat’l Inst. of Military Just. v. Dep’t of Def., No. 06-
5242, 2008 WL 1990366, at *1 (D.C. Cir. April 30, 2008)
(Tatel, J., concurring in the denial of rehearing en banc) (“I
continue to believe that the documents at issue here fall
40 ROJAS V. FAA
outside the protection of Exemption 5 of the Freedom of
Information Act because they cannot plausibly be described
as ‘intra-agency’ . . . .”).
If you expected a long and storied history of careful
analysis and reasoning to lie behind the consultant corollary,
you probably feel disappointed. Readers familiar with FOIA
might even feel a sense of déjà vu in all this. As in Milner
and Argus Leader, a decades-old D.C. Circuit decision that
contained no meaningful analysis of FOIA’s text gave birth
to an atextual doctrine. And as in those cases, other circuits
followed the D.C. Circuit’s lead without meaningful analysis
of the text or structure of Exemption 5. We can only
speculate as to where this will end.
III.
To its credit, the majority opinion acknowledges that
adopting the consultant corollary is not the most natural
reading of Exemption 5. Maj. Op. at 12. Its analysis
laudably does more than blindly cite to Soucie, Wu, or their
progeny. However, it can only adopt the consultant
corollary by distorting Exemption 5’s context and legislative
purpose. Maj. Op. at 13. None of this analysis was
necessary given Exemption 5’s plain text, and perhaps
worse, none of it holds up to careful scrutiny.
On every level, FOIA’s statutory context cuts against the
consultant corollary. At the highest level, “disclosure, not
secrecy, is the dominant objective of” FOIA, Klamath,
532 U.S. at 8, and “Congress undoubtedly sought to expand
public rights of access to Government information” through
this Act, Forsham v. Harris, 445 U.S. 169, 178 (1980). The
statute thus contains multiple different mechanisms to
facilitate government transparency. See 5 U.S.C.
§ 552(a)(1)–(3), (5). “This pro-disclosure framework is
ROJAS V. FAA 41
deliberate” and embodies “the power of frustration reflected
in congressional distrust for agency withholding[,]”
Brinkerhoff, supra, at 577 (internal quotation marks and
citation omitted), which stemmed from the litany of
government abuses before FOIA and the Watergate scandal,
see 1 O’Reilly, Fed. Info. Disclosure §§ 2:2, 3:8 (2018).
Zooming in to focus on the context of FOIA’s
exemptions is similarly unhelpful to the majority’s cause.
These nine limited exemptions are “explicitly made
exclusive and must be narrowly construed.” Milner,
562 U.S. at 564 (internal quotation marks and citations
omitted); see also 5 U.S.C. § 552(d). Therefore, even if
there are two equally plausible readings of a given FOIA
exemption, we must favor the one that promotes government
transparency—not secrecy. See Dep’t of Air Force v. Rose,
425 U.S. 352, 366 (1976) (“FOIA requires us to choose that
interpretation most favoring disclosure.”); John Doe Agency
v. John Doe Corp., 493 U.S. 146, 164 (1989) (Scalia, J.,
dissenting) (“[O]ur doctrine of ‘narrowly construing’ FOIA
exemptions requires that ambiguity to be resolved in favor
of disclosure.”).
If anything, then, statutory context dooms the majority’s
reading of Exemption 5. Although the plain text of the word
“intra-agency” should alone resolve this case, the majority
(wrongly) views this word as having two equally plausible
interpretations. Maj. Op. at 13. One interpretation reads
Exemption 5 narrowly, rejects the consultant corollary, and
thus favors disclosure; the other does the exact opposite.
That dichotomy should make our job easy. Because the tie
goes to disclosure, so to speak, we should side with the
narrow interpretation of “intra-agency” and refuse to adopt
the consultant corollary. See Rose, 425 U.S. at 366.
42 ROJAS V. FAA
Instead, the majority’s “tiebreaker” is a myopic reading
of the purposes behind Exemption 5. To be sure, that
exemption reflects a justifiable policy concern with
protecting an agency’s internal deliberations and preventing
the disclosure of certain privileged documents. See
Klamath, 532 U.S. at 8–9; United States v. Weber Aircraft
Corp., 465 U.S. 792, 801 (1984). But “the point” of
Exemption 5 “is not to protect Government secrecy pure and
simple,” and thus “the first condition of Exemption 5 is no
less important than the second; the communication must be
‘inter-agency or intra-agency.’” Klamath, 532 U.S. at 9;
Brinkerhoff, supra, at 584 (explaining that Congress did not
transfer the privileges existing prior to FOIA’s enactment to
Exemption 5 “unscathed”). In other words, Exemption 5
protects from disclosure only certain privileged agency
documents—i.e., those that are inter- or intra-agency.
In this respect, it is notable that the cases from which the
majority surmises the purpose of Exemption 5 all predate
Klamath. Maj. Op. at 13–14. Before Klamath, the Supreme
Court’s Exemption 5 cases had addressed only half of the
Exemption 5 inquiry. See 532 U.S. at 8 (“Our prior cases on
Exemption 5 have addressed the second condition,
incorporating civil discovery privileges.”). Klamath thus
marked the first time that the Supreme Court addressed the
full purpose of Exemption 5, and the Court there specifically
warned against draining Exemption 5’s “intra-agency or
inter-agency” requirement of “independent vitality.” Id.
at 12.
That Congress intended Exemption 5 to protect less than
the full universe of privileged government documents is also
far from surprising. Early drafts of FOIA immunized even
fewer of these documents from disclosure. They shielded
only “agency internal memoranda used in disposing of
ROJAS V. FAA 43
adjudicatory or rulemaking matters[,]” and refused to protect
even “routine internal agency correspondence.” 1 O’Reilly,
Fed. Info. Disclosure § 2:3. Of course, the Executive Branch
balked at this language, and a compromise was ultimately
reached. See id. § 15:2. Together, the political branches
drew a new line at “intra-agency or interagency
memorandums or letters that would not be available by law
to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5); see also 1 O’Reilly, Fed. Info.
Disclosure § 15:2. The release of some privileged
documents through FOIA is thus by no means the aberration
the majority suggests, but a long-planned feature of FOIA.
See Klamath, 532 U.S. at 16 (“Congress had to realize that
not every secret under the old law would be secret under the
new.”).
Judge Collins’s concurrence makes a similar misstep,
though he frames this argument as a contextual reading of
the word “intra-agency” rather than one based on legislative
purpose. Collins Concurrence at 26–27. However, as
already explained, that Exemption 5’s text envisions
protecting some privileged documents from disclosure by no
means signals that Congress intended to withhold from
scrutiny all such documents. Cf. Klamath, 532 U.S. at 11–
12 (“From the recognition of this interest in frank
communication, which the deliberative process privilege
might protect, the Department would have us infer a
sufficient justification for applying Exemption 5 to
communications with the Tribes, . . . But the Department’s
argument skips a necessary step, for it ignores the first
condition of Exemption 5, that the communication be ‘intra-
agency or inter-agency.’”); id. at 16 (“FOIA’s mandate of
broad disclosure . . . was obviously expected and intended to
affect Government operations.”).
44 ROJAS V. FAA
Finally, as already explained, Exemption 5’s use of the
word “intra-agency” does not protect just any memorandum
or letter within an agency, regardless of whether its authors
and recipients were agency employees. Collins Concurrence
at 24. But two additional points are worth emphasizing.
First, such a reading would render the term “intra-agency . . .
purely conclusory” and without “independent vitality,” id.
at 32, for every document potentially subject to a FOIA
request is “within” an agency, see U.S. Dep’t of Just. v. Tax
Analysts, 492 U.S. 136, 142, 144–46 (1989). Second, that
reading would also cause courts to read Exemption 5’s
parallel terms “intra-agency” and “inter-agency” in
asymmetric ways. Intra-agency memorandums or letters
would merely need to be physically (or digitally) within an
agency, while inter-agency memorandums or letters would
need to have been exchanged between agencies. Reading
these terms, located in the same sentence, to diverge in such
a manner runs counter to a faithful interpretation of FOIA’s
text. See United States v. Williams, 553 U.S. 285, 294
(2008) (“[A] word is given more precise content by the
neighboring words with which it is associated.”).
IV.
All that remains at this point is a consequentialist
argument based on a fear of the quantity and types of
government documents that may enter the public domain if
we take Congress at its word in Exemption 5. As judges, we
are former lawyers, and it is only natural that our instincts
lead us away from the possibility that Congress authorized
the disclosure of sensitive documents—for instance,
attorney work-product or even attorney-client materials. See
Maj. Op. at 15. And to be sure, Exemption 5, like all FOIA
exemptions, plays an important role in FOIA’s statutory
scheme. See Argus Leader, 139 S. Ct. at 2366; Collins
ROJAS V. FAA 45
Concurrence at 31. But, we must respect the statutory
scheme that Congress created and read Exemption 5 as
Congress wrote it; we cannot “tak[e] a red pen to the statute”
and “cut[] out some words and past[e] in others.” Milner,
562 U.S. at 573 (internal quotation marks and citation
omitted); see also Argus Leader, 139 S. Ct. at 2366 (“[W]e
cannot properly expand Exemption 4 beyond what its terms
permit[;] we cannot arbitrarily constrict it either.”). Indeed,
“[b]y suggesting that our interpretation of Acts of Congress
adopted [five decades] ago should be inflected based on the
costs of enforcing them today, the [majority] tips its hand.”
McGirt v. Oklahoma, 140 S. Ct. 2452, 2481 (2020).
Besides, “dire warnings are just that, and not a license
for us to disregard the law.” Id. If Congress has had a
change of heart, it can always amend FOIA, which it has
proven itself more than willing to do. See, e.g., OPEN FOIA
Act of 2009, Pub L. No. 111-83, § 564, 123 Stat. 2142, 2184
(2009); Electronic Freedom of Information Act
Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048
(1996). Congress has amended FOIA in the wake of judicial
rulings it does not like, see 1 O’Reilly, Federal Information
Disclosure § 3:9, and has even “amended FOIA when it
wanted to stop the use of FOIA as an end run around
discovery,” Brinkerhoff, supra, at 595 n.154 (collecting
sources discussing Congress’s “1987 amendments to
Exemption 7” stemming from “a gang member’s use of
FOIA to discover law enforcement information”).
And, should Congress allow an honest reading of
Exemption 5’s text to stand, pessimism need not rule the day.
“In FOIA, after all, a new conception of Government
conduct was enacted into law, a general philosophy of full
agency disclosure.” Klamath, 532 U.S. at 16 (internal
quotation marks and citation omitted). “Congress believed
46 ROJAS V. FAA
that this philosophy, put into practice, would help ‘ensure an
informed citizenry, vital to the functioning of a democratic
society.’” ’Tax Analysts, 492 U.S. at 142 (1989) (quoting
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978)). Giving Exemption 5 its fair compass, and nothing
more, lives up to these ideals, and ensures that the workings
of the Executive Branch are transparent to the American
people.
V.
Like so many other courts of appeals, today our court
disregards the plain text of Exemption 5 and continues a long
history of judicial deference to Executive secrecy. Because
I disagree with that approach and do not think we should
perpetuate this interpretation of Exemption 5, I respectfully
dissent.
THOMAS, Chief Judge, concurring in part and dissenting in
part:
I join Judge Wardlaw’s dissent in full. I also agree with
the majority opinion’s holding that the Federal Aviation
Administration (“FAA”) did not meet its burden to show that
it conducted an adequate search for documents responsive to
Jorge Rojas’s Freedom of Information Act (“FOIA”)
request. I write separately to observe that, even if the
consultant corollary formed part of Exemption 5, it would
not protect the specific information sought in this case.
Rojas’s FOIA request was for “information regarding the
empirical validation” of the FAA’s 2015 “biographical
assessment[.]” These types of validation studies are
addressed in the United States Equal Employment
ROJAS V. FAA 47
Opportunity Commission’s Uniform Guidelines on
Employee Selection Procedures. See generally 29 C.F.R. pt.
1607. The Uniform Guidelines require that any employment
screening test that results in adverse impact on members of
any race, sex, or ethnic group must be validated by study,
and the Uniform Guidelines establish detailed criteria for
such validation studies. 29 C.F.R. §§ 1607.3(A), 1607.5.
Most importantly for our purposes, the Uniform
Guidelines require employers and agencies to maintain
documentation of the validation studies and make the studies
available for review. Specifically, the Uniform Guidelines
provide that “[a]ny employer . . . which uses a selection
procedure as a basis for any employment decision” “should
maintain and have available” documentation of the selection
procedure’s adverse impact, if any, and evidence of its
validity. 29 C.F.R. §§ 1607.5(D), 1607.15, 1607.16(W).
The FAA has recognized its obligation under the
Uniform Guidelines to conduct validation studies and
maintain them. Indeed, the FAA’s Deputy Assistant
Administrator for Human Resource Management testified
before Congress that compliance with the Uniform
Guidelines “is legally an obligation we have as an agency,”
and that the FAA’s consultants accordingly had “done the
validation work to ensure that the [biographical assessment]
is valid.” A Review of the Federal Aviation Administration’s
Air Traffic Controller Hiring, Staffing, and Training Plans:
Hearing Before the Subcomm. on Aviation of the H. Comm.
on Transp. & Infrastructure, 114th Cong. 21 (2016).
Further, the FAA has repeatedly confirmed that both the
2014 and 2015 biographical assessments had been validated.
A document that an agency is required to produce and
maintain is not a document prepared in anticipation of
litigation. See Am. Civ. Liberties Union of N. Cal. v. U.S.
48 ROJAS V. FAA
Dep’t of Just., 880 F.3d 473, 485–86 (9th Cir. 2018). Thus,
Exemption 5 cannot shield the validation studies from
disclosure under FOIA.
In this case, the record indicates that the FAA has either
conducted an inadequate search for documents it actually
possesses or has disregarded the Uniform Guidelines’
instructions to “maintain and have available” evidence of the
biographical assessment’s validation by leaving it in
APTMetrics’ possession and attempting to shield it from
disclosure under FOIA. 29 C.F.R. §§ 1607.5(D), 1607.15.
An agency cannot avoid its responsibility to conduct and
maintain employment screening test validation studies by
placing the studies in third-party hands and claiming that the
studies were prepared in anticipation of litigation. Such a
practice would violate the Uniform Guidelines and frustrate
FOIA’s “policy of broad disclosure of Government
documents[.]” Fed. Bureau of Investigation v. Abramson,
456 U.S. 615, 621 (1982).
Of course, the present record is not fully developed on
these issues, and the instant appeal is limited to summaries
of the studies, but the district court will have the opportunity
to revisit these issues on remand.
In sum, I agree with Judge Wardlaw that FOIA’s
Exemption 5 does not afford “consultant corollary”
protection for documents exchanged with a non-
governmental entity. However, even if the consultant
corollary could be grafted onto Exemption 5, it would not
protect the information Rojas sought in his FOIA request
because the information was required to be maintained and
made publicly available by the agency.
Therefore, I respectfully concur in part and dissent in
part.
ROJAS V. FAA 49
IKUTA, Circuit Judge, with whom GRABER and
CALLAHAN, Circuit Judges, join, and BUMATAY, Circuit
Judge, joins except as to footnote 1, dissenting in part:
I write separately because I disagree with the majority’s
conclusion that the declaration submitted by the FAA failed
to show that the agency “conducted a search reasonably
calculated to uncover all relevant documents” in response to
Rojas’s FOIA request. Zemansky v. EPA, 767 F.2d 569, 571
(9th Cir. 1985) (cleaned up). 1
“In response to a FOIA request, government agencies
must conduct a reasonable search to find any documents
responsive to the request.” Hamdan v. Dep’t of Justice,
797 F.3d 759, 770 (9th Cir. 2015). A search is reasonable if
it is “reasonably calculated to uncover all relevant
documents.” Zemansky, 767 F.2d at 571 (citation omitted).
“An agency can demonstrate the adequacy of its search
through ‘reasonably detailed, nonconclusory affidavits
submitted in good faith.’” Hamdan, 797 F.3d at 770
(quoting Zemansky, 767 F.2d at 571). “Affidavits submitted
by an agency to demonstrate the adequacy of its response are
presumed to be in good faith.” Id. In short, our standard
requires the agency to make a “reasonable search” in light of
the FOIA request at issue. See id.
Here, Rojas’s FOIA request was limited to the following:
1
I otherwise agree with the majority’s interpretation of “intra-
agency memorandums or letters” to include documents prepared by
outside consultants hired by the agency to assist in carrying out the
agency’s functions. Therefore, I would affirm the district court’s
summary judgment order for the FAA as to the first two withheld
documents, and reverse as to the third document for the reasons stated in
the majority opinion.
50 ROJAS V. FAA
I am requesting information regarding the
empirical validation of the biographical
assessment noted in the rejection notification.
This includes any report created by, given to,
or regarding APTMetrics’ evaluation and
creation and scoring of the assessment.
Only the search undertaken by the FAA’s Office of the
Chief Counsel is at issue in this appeal. The Office of Chief
Counsel’s involvement in the Air Traffic Control Specialists
(ATCS) hiring process was limited to requesting and
obtaining a summary of APTMetrics’ “validation work
related to the use of the [Biographical Assessment] as an
instrument in the ATCS selection process,” in connection
with potential future litigation. This assignment to
APTMetrics was narrowly focused: According to the FAA’s
Vaughn index, only three documents related to this
assignment were found in the FAA’s legal office.
Given this context, asking the lawyers in the office who
had been assigned to provide legal advice regarding the
revisions to the ATCS hiring process to search their files for
responsive documents would be a reasonable response to
Rojas’s FOIA request.
And that was exactly what the Office of the Chief
Counsel did. Yvette Armstead, the Assistant Chief Counsel
at the Office of the Chief Counsel’s Employment and Labor
Law Division (AGC-100), is the lawyer responsible for
providing “legal advice related to the hiring process for
[ATCS] at the Federal Aviation Administration.” According
to her declaration, which we presume to be in good faith:
AGC-100 conducted a second search for
documents responsive to Plaintiff's request
within our office. This search was
ROJAS V. FAA 51
reasonably calculated to obtain responsive
records because the attorneys who provided
legal advice related to the revisions to the
ATCS hiring process were asked to review
their records.
There is no dispute that the search described in this
simple statement was reasonable under the circumstances.
Rojas does not challenge the scope or methods of the search
described in this statement. Nor has Rojas argued that the
FAA should have expanded its search or found specific
categories of additional documents. Cf. Lahr v. Nat’l
Transp. Safety Bd., 569 F.3d 964, 988 (9th Cir. 2009)
(rejecting the claim that the government’s searches were
inadequate because they failed to uncover documents
referenced in produced records); Lane v. Dep’t of Interior,
523 F.3d 1128, 1139 (9th Cir. 2008) (same). While we have
indicated that an agency’s search might be insufficient if
“other databases are likely to turn up the information
requested” or if a standard search turns up leads “that suggest
other records might be located elsewhere,” Hamdan,
797 F.3d at 772, Rojas does not suggest there was any such
deficiency here. Rojas’s FOIA request did not require a
search of thousands of files or massive electronic databases,
and Rojas does not argue otherwise.
Given the limited search required by Rojas’s FOIA
request, the agency’s simple description of its search
provided reasonably adequate detail. It describes who was
asked to conduct a search—the attorneys who were involved
in the ATCS hiring process revisions, i.e., the only persons
in the Office of the Chief Counsel who would have
responsive documents. It also describes the search methods
used and the body of records examined: the attorneys
reviewed their files for relevant documents. In the context
52 ROJAS V. FAA
of this particular search, nothing more was required to
provide a reasonable description of the files searched or the
search procedure used.
The majority fails to provide any reasonable analysis or
explanation for its contrary—and conclusory—holding that
the FAA’s declaration “falls short” of what is required. Maj.
at 22. Instead of explaining why the FAA’s description of
its search was not “reasonably detailed” in the particular
context of this case, see Hamdan, 797 F.3d at 770, the
majority makes a rote recital that the declaration “offers no
details about how the search was conducted,” because it fails
to describe “the number of attorneys involved, the search
methods they used, the body of records they examined, or
the total time they spent on the search.” Maj. at 22. This
criticism is not reasonable. The declaration provides all
relevant information: the office that conducted the search,
the persons asked to conduct the search, the search
procedure, and the search scope. Although the declaration
does not state how many attorneys were involved, or how
much time was spent on their search, the majority fails to
explain why the lack of such details here makes the
information that was provided fatally inadequate. While
more details may be needed to demonstrate the adequacy of
a search involving large databases in multiple locations and
with numerous custodians, it is not reasonably required in
this context.
Nor does our precedent support the majority’s
conclusions. The cases cited by the majority merely
reviewed the agency declarations and approved them. Maj.
at 22 (citing Lane, 523 F.3d at 1139; Citizens Commission
on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir.
1995)). We have never held that specific details were
required or that the absence of such details would render a
ROJAS V. FAA 53
declaration per se insufficient. Our case law requires only
that an affidavit be “reasonably detailed.” Hamdan,
797 F.3d at 770. What constitutes a “reasonably detailed”
affidavit must—reasonably—depend on the context of the
particular search. By ignoring the context, the majority
requires an agency to incant magic words, and ignores our
touchstone of reasonableness under the circumstances.
Because the declaration here is “reasonably detailed” to
establish that the FAA’s search was adequate in the
circumstances presented here, the FAA is entitled to
summary judgment on this issue as a matter of law.
BUMATAY, Circuit Judge, concurring in part and
dissenting in part:
Our task should have been simple. Exemption 5 of the
Freedom of Information Act (“FOIA”) protects only “inter-
agency or intra-agency memorandums or letters” from
disclosure under the Act. 5 U.S.C. § 552(b)(5). As Justice
Scalia stated, “the most natural meaning of the phrase ‘intra-
agency memorandum’ is a memorandum that is addressed
both to and from employees of a single agency” and an
“inter-agency memorandum” is “a memorandum between
employees of two different agencies.” U.S. Dep’t of Justice
v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting).
These definitions leave no room for documents created by
those outside of an agency’s employment. To me, that is the
end of the inquiry and Exemption 5 doesn’t cover consultant
work product.
But finding Congress’s work inadequate, the majority
picks up its drafting pen and bestows on us a supposedly
better law. Contending that Congress actually adopted sub
54 ROJAS V. FAA
silentio a “consultant corollary” through the otherwise clear
language of Exemption 5, the majority now rules that the
government no longer needs to publicly disclose documents
made by private-sector consultants for executive agencies.
How does the majority justify this judicial rewrite? It’s
purpose all the way down. The majority creates an “escape
route from the prison of the text,” 1 by invoking Exemption
5’s supposed purpose and imposing a more faithful—as the
majority sees it—version of the law. But invocation of
purpose is nothing more than a “bald assertion of an
unspecified and hence unbounded judicial power to ignore
what the law says.” Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1077 (2020) (Thomas, J., dissenting) (quoting
Reading Law 343).
Because I do not believe that our limited judicial role
allows us to subvert the plain text of a law to our own sense
of its purpose, I respectfully dissent.
I.
APTMetrics, a private consulting firm independent of
the federal government, developed assessment tests for
hiring air traffic controllers for the Federal Aviation
Administration. Jorge Rojas, a rejected applicant, filed suit
under FOIA seeking three documents summarizing the
assessment tests created by APTMetrics. 2 The FAA sought
Antonin Scalia & Bryan Garner, Reading Law: The Interpretation
1
of Legal Texts 39 (2012) (“Reading Law”) (quoting Patrick Devlin, The
Judge 16 (1979)).
That the documents at issue were summaries rather than the test
2
themselves makes little difference under the plain meaning of Exemption
5. The exemption focuses on who created the memorandums or letters,
ROJAS V. FAA 55
to withhold the documents under Exemption 5. 3 But
APTMetrics, all agree, is not an agency under FOIA. See
5 U.S.C. § 551(1) (An “agency” must be an “authority of the
Government of the United States.”). Nor has the FAA
argued that APTMetrics consultants are so embedded within
its structure that they should be deemed FAA employees. 4
By its plain text then, Exemption 5 doesn’t protect
APTMetrics’s documents from disclosure. 5
not on their purpose or substance. But see Maj. Op. 18 n.3 (finding that
the documents were summaries to be critical).
3
Exemption 5 states, in full:
This section does not apply to matters that are—. . .
inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than
an agency in litigation with the agency, provided that
the deliberative process privilege shall not apply to
records created 25 years or more before the date on
which the records were requested[.]
5 U.S.C. § 552(b)(5). A document, thus, must satisfy two conditions to
qualify as a FOIA withholding exemption. See Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Since the
first condition—being an “intra-agency memorandum[]”—is not met in
this case, I do not address the second condition.
4
Rather, it is the opposite. The FAA purposefully held out
APTMetrics as “outside experts” who developed and independently
validated the assessment tests.
5
With respect, I believe Judge Collins’s interpretation of Exemption
5 suffers from two flaws. First, Judge Collins seems to view “intra-
agency memorandums” as merely a geographical condition—only
requiring that the memorandum “be intra-agency,” meaning within the
agency. See Collins Concurrence at 24 Setting aside that no one would
ever use the word “intra-agency” as a location, FOIA only applies if the
56 ROJAS V. FAA
The majority disputes none of this; yet, it concludes that
Exemption 5 applies nonetheless based on FOIA’s supposed
purpose and a desire to avoid the parade of horribles it
envisions if we were to give the provision its plain meaning.
The majority first divines from FOIA’s legislative history
that, despite the exemption’s limited scope, Congress’s
“purpose” was to broadly “shield[] privileged
communications from disclosure.” Maj. Op. 13. Second,
the majority fears that Exemption 5’s plain meaning would
chill communications between consultants and government
employees, resulting in “poorer” decisionmaking and
policies. Maj Op. 13 (quoting NLRB v. Sears, Roebuck &
document is within the agency in the first place. See Berry v. Dep’t of
Justice, 733 F.2d 1343, 1349 (9th Cir. 1984) (limiting “agency records”
to information “in the possession of an agency”). So this interpretation
effectively reads the term out of the statute. It’s also unclear how Judge
Collins’s location-based reading applies to “inter-agency”
memorandums—does it mean that the document is simultaneously
present in two agencies?
Second, Judge Collins believes Exemption 5’s second condition—
that the document would not be “available by law to a party”—means
that “intra-agency memorandum” refers to any document that falls
“within the agency’s litigation privileges.” See Collins Concurrence
at 26–27. Yet under this reading, “intra-agency” does no work at all.
And we turn grammar on its head if we treat a limiting dependent phrase,
like Exemption 5’s second condition, as totally eliminating the words to
which it is dependent.
At the end of the day, even if Judge Collins’s interpretation were
permissible, I continue to believe our duty is to “seek the best reading of
the statute by interpreting the words of the statute, taking account of the
context of the whole statute, and applying the agreed upon semantic
canons.” Brett M. Kavanaugh, Fixing Statutory Interpretation,
129 Harv. L. Rev. 2118, 2121 (2016) (emphasis added). In this case, the
best and “most natural” reading of the phrase is that the “memorandums”
must be “to and from employees of a single agency.” Julian, 486 U.S.
at 18 n.1 (Scalia, J., dissenting).
ROJAS V. FAA 57
Co., 421 U.S. 132, 150 (1975)). Finally, the majority thinks
an ordinary-meaning interpretation of the provision would
potentially vitiate the attorney-work-product privilege of an
agency’s outside counsel. Id. at 15.
To accommodate these considerations, the majority
engrafts a “consultant corollary” to Exemption 5, whereby
any document may now be subject to exemption if drafted
by anyone “act[ing] in a capacity functionally equivalent to
that of an agency employee in creating the document.” Maj.
Op. 17.
II.
A.
In my view, we can never let perceived legislative
purpose eclipse the ordinary meaning of statutory text. If a
statute has a clear and natural reading, as is the case here, we
are stuck with that meaning—even if we believe Congress
might disagree with the outcome in a particular case. This
limited judicial role derives directly from the structure of our
Constitution and separation-of-powers principles.
Lawmaking is not a tidy affair. It can be a “clumsy,
inefficient, even unworkable” process. INS v. Chadha,
462 U.S. 919, 959 (1983). That is by design. See id. The
Constitution requires bicameralism—meaning that
legislation must pass both the House and Senate with their
respective rules and committees. Id. at 948–49 (citing
Article I of the Constitution). When Congress is at its full
complement, it consists of 535 legislators from various
backgrounds, regions, and beliefs, split into two chambers
with different constituencies and political interests. Id.
at 948–51; Apportionment Act of 1911, 37 Stat. 13, 13–14;
Apportionment Act of 1929, 46 Stat. 21, 26–27. The
58 ROJAS V. FAA
Constitution also requires presentment to the President, who
provides a separate “national perspective” to legislation.
Chadha, 462 U.S. at 948 (simplified).
Given this, I am skeptical that the majority could so
easily discern the legislative purpose behind the FOIA
exemptions. When we sit en banc, we’re only 11 judges—
yet, it is often difficult to find agreement among our small
number. It is doubtful that we could extract a common
purpose from a body almost 50 times as large, as the majority
purports to do.
Legislation, moreover, is often about the art of
compromise. Even when Congress unites to tackle a
national issue, “its Members may differ sharply on the means
for effectuating that intent.” Bd. of Governors of Fed.
Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374
(1986). Given the clash of purposes, interests, and ideas, “the
final language of the legislation may reflect hard-fought
compromises.” Id. After all, no legislation pursues its
purposes at all costs, so “it frustrates rather than effectuates
legislative intent simplistically to assume that whatever
furthers the statute’s primary objective must be the law.”
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633,
646–47 (1990) (simplified). In other words, when we allow
legislative purpose to override statutory text, we undo these
legislative compromises and recalibrate any balances struck
by Congress. And we do so without any limiting principle
except our own discretion. 6
6
To be clear, this doesn’t mean we cannot interpret statutes based
on their context. If contextual clues help give meaning to the words of
the statute, we may readily employ them. See Reading Law 153
(“Perhaps no interpretive fault is more common than the failure to follow
ROJAS V. FAA 59
More troublesome still is the majority’s reliance on
legislative history to determine Congress’s purpose in
enacting FOIA exemptions. See Maj. Op. 13–14 (quoting a
single Senate committee report to represent Congress’s
intent to encourage “frank discussion of legal and policy
matters”). But there are significant problems with using
legislative history to single out congressional intent. See
Fazaga v. FBI, 965 F.3d 1015, 1081–82 (9th Cir. 2020)
(Bumatay, J., dissenting from denial of rehearing en banc).
In any event, judges have found other congressional
purposes in FOIA, too. For one, the Supreme Court has said
that the “core purpose” of FOIA is to “contribut[e]
significantly to public understanding of the operations or
activities of the government.” U.S. Dep’t of Def. v. Fed.
Labor Relations Auth., 510 U.S. 487, 495 (1994)
(simplified). That is why the Court has continuously
reaffirmed that FOIA requires “full agency disclosure”
unless exempted under “clearly delineated statutory
language.” Id. (quoting Dep’t of Air Force v. Rose, 425 U.S.
352, 360–61 (1976)).
If purpose rather than text governs, which purpose
prevails here? While some legislators may have felt that
protecting government privileges was of paramount
importance, others may have believed that achieving
government transparency was more critical. As judges, we
the whole-text canon, which calls on the judicial interpreter to consider
the entire text, in view of its structure and of the physical and logical
relation of its many parts.”). For example, here, in FOIA, two other
exemptions specifically authorize the non-disclosure of documents
created by non-government employees. See 5 U.S.C. § 552(b)(4), (8).
That Congress did not include such express language in Exemption 5 is
strong contextual evidence against the so-called consultant corollary.
But what we can’t do is try to discern some overriding extratextual policy
purpose to then eclipse the plain meaning of statutes.
60 ROJAS V. FAA
are not well-situated to step into the shoes of our elected
representatives and select a purpose to guide our
interpretation. See Diamond v. Chakrabarty, 447 U.S. 303,
317 (1980) (“[T]he balancing of competing values and
interests” requires “the kind of investigation, examination,
and study that legislative bodies can provide and courts
cannot.”). That is exactly what the majority does, however,
by prophesying what Congress would have enacted if only it
better understood its own purposes. See, e.g., Maj. Op. 14
(“A Congress whose aim was to further the purposes just
discussed would not have limited Exemption 5’s coverage to
communications authored by agency employees.”).
Indeed, Exemption 5’s limitation to inter- and intra-
agency materials may have been the compromise between
Congress’s dueling purposes. By ignoring its plain meaning,
we subvert any legislative compromise baked into its
enacted text. Furthermore, it’s not clear how else Congress
could have expressed its rejection of the consultant
corollary. After all, the language of Exemption 5 does
precisely that—it leaves no room for consultant documents
to be exempted. But that wasn’t enough for the majority.
Perhaps, a congressional amendment to Exemption 5—“and
we really mean it”—would suffice.
Most disconcerting about the approach articulated by the
majority is the threat to the separation of powers. Any
student of the Constitution can recite that Congress makes
the laws and judges interpret them. See Patchak v. Zinke,
138 S. Ct. 897, 904 (2018) (“To the legislative department
has been committed the duty of making laws; . . . and to the
judiciary the duty of interpreting and applying them[.]”). By
reading a statute not by its text, but its purpose, judges come
dangerously close to legislating—except without the
political accountability.
ROJAS V. FAA 61
If there was any doubt about this concern, look no further
than the majority’s test for when a document meets the
“consultant corollary” exemption. It states that any
document drafted by anyone “act[ing] in a capacity
functionally equivalent to that of an agency employee in
creating the document” is subject to the protection of
Exemption 5. Maj. Op. 17. So instead of the straightforward
language used in Exemption 5, citizens must now parse the
majority’s newfangled, multi-factor test 7 to gain the
disclosure of government documents. While this test might
make normative sense, and congressional staffers might
admire its drafting, none of it is derived from the text of
Exemption 5 or frankly any other legislation. We simply
made it up. Cf. California v. EPA, 978 F.3d 708, 718 (9th
Cir. 2020) (“There is a word for picking the law that
determines a party’s future conduct: legislation[.]”)
(emphasis omitted).
B.
The same goes for the majority’s concerns for the
consequences of interpreting Exemption 5 according to its
text. We don’t supersede or amend congressional
enactments simply because we (or our belief that Congress
would) disagree with the outcome in a particular case. Our
job requires neutrality to a statute’s consequences. See
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576
(1982) (“The remedy for any dissatisfaction with the results
in particular cases lies with Congress and not with th[e]
7
As I understand it, the majority’s consultant corollary test requires
(1) establishing what an “agency employee” does for a particular agency;
and (2) determining whether the consultant acted in a “functionally
equivalent” capacity. No doubt further litigation will be required to
refine the meaning of each step and establish the prongs for each factor
and, of course, the subprongs to the prongs for each factor.
62 ROJAS V. FAA
[c]ourt[s].”). We don’t reverse engineer our interpretation
of a law by surveying the outcomes it produces and then
selecting the reading that reaches our favored results. That
gets it backwards. See Baker Botts LLP v. ASARCO LLC,
576 U.S. 121, 134 (2015) (A “harsh outcome” does not
justify deviating from “the import of Congress’ chosen
words.”). So it’s inappropriate to create a “consultant
corollary” based on fear that not doing so would discourage
outside consultants from working with agencies. See Maj.
Op. 14.
For what it’s worth, the majority’s overwrought concern
for the protection of an agency’s outside counsel’s work
product is also a bit of a red herring. See Maj. Op. 15. First,
that is not this case. APTMetrics is not outside counsel and
no one suggests it is the functional equivalent of one. If such
a case arises in the future, we can decide whether the
attorney-client privilege is so sacrosanct that we must
override FOIA’s statutory text; but there is certainly no
reason to do that here. Second, I am not so sure that such a
case would arise. The FAA is not like a normal client. It
can’t just retain any lawyer of its choice. It is, after all, an
Executive agency. 49 U.S.C. § 106. It has a cadre of
lawyers in its chief counsel’s office. 8 It sits within the
Department of Transportation with its own team of lawyers.
49 U.S.C. § 106(a). And, by law, the Department of Justice
provides it legal counsel and must represent it in all
litigation. See 28 U.S.C. §§ 514, 516; 5 U.S.C. § 3106. So,
I seriously doubt that the need to protect privileged
communications of outside counsel is so grave and so stark
8
See Office of the Chief Counsel, Federal Aviation Administration,
https://www.faa.gov/about/office_org/headquarters_offices/agc/
(Sept. 19, 2017, 2:36 PM).
ROJAS V. FAA 63
that we must discard the plain reading of the text enacted by
Congress. 9
Cow.
I acknowledge that Justice Scalia, after analyzing the
“natural meaning” of Exemption 5, went on to consider
FOIA’s purpose and endorse a consultant corollary. Julian,
486 U.S. 1, 18 n.1 (Scalia, J., dissenting). In my view, the
principles that Justice Scalia spent a lifetime advocating—
textualism, separation of powers, deference to the political
branches 10—are more important than any one of his
individual decisions, let alone dicta buried in a footnote of a
dissent he authored more than 30 years ago. That all judges,
to varying degrees, adhere to the plain meaning of statutory
text is Justice Scalia’s lasting legacy. It is more faithful to
that legacy to maintain that the plain meaning of the text
must prevail here.
9
Judge Collins contends that we must confront the attorney-client
issue here because another agency—the FDIC—may potentially need to
rely on outside attorneys. See Collins Concurrence 30–31. I think this
example only proves my point. Unknown issues may pop up in such a
situation. For example, the FDIC guidelines governing outside counsel
cited by Judge Collins may impact our analysis. See id. at 30–31. We
also don’t know if these hypothetical outside counsel are hired as special
Government employees. See 18 U.S.C. § 2020(a). Or if other federal
laws, such as conflicts and ethics requirements, apply to outside counsel.
Point being, we don’t need to decide this question in this case.
10
See, e.g., Neil M. Gorsuch, Of Lions and Bears, Judges and
Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev.
905, 912 (2016).
64 ROJAS V. FAA
III.
I concur with the majority that the FAA was not required
to search APTMetrics’ records for responsive documents.
But, as Judge Ikuta explains in her well-reasoned dissent, the
majority was also incorrect that FAA’s search was
inadequate. Most fundamentally, however, because a
perceived legislative purpose doesn’t eclipse the natural
meaning of statutory text, I respectfully dissent from the
judgment of the court.