Flyers Rights Education Fund, Inc. v. FAA ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2023 Decided June 30, 2023
No. 21-5257
FLYERS RIGHTS EDUCATION FUND, INC., AND PAUL HUDSON,
APPELLANTS
v.
FEDERAL AVIATION ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03749)
Joseph E. Sandler argued the cause for appellants. With
him on the briefs was Christina E. Bustos.
Burt Braverman was on the brief for amici curiae Six
Aviation Safety Experts in support of appellants.
Derek S. Hammond, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: SRINIVASAN, Chief Judge, MILLETT, Circuit
Judge, and TATEL, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge TATEL.
TATEL, Senior Circuit Judge: On October 29, 2018,
189 people boarded a Boeing 737 MAX airplane in Jakarta,
Indonesia. A few minutes after takeoff, the plane crashed. No
one survived. Five months later, 157 people aboard a 737 MAX
in Ethiopia suffered the same fate. The Federal Aviation
Administration then grounded the 737 MAX, prompting
modifications by Boeing that eventually led the agency to
recertify the plane. In this Freedom of Information Act suit,
Flyers Rights Education Fund and its president seek documents
that the FAA relied upon during the recertification process.
Congress exempted from FOIA’s reach “commercial or
financial information obtained from a person and privileged or
confidential,” 5 U.S.C. § 552(b)(4), and the district court
determined that is precisely what the FAA withheld. For the
reasons set forth below, we affirm.
I.
Christened in 1967, the Boeing 737 began as “a short,
stubby puddle-jumper.” Dominic Gates, Meet the 10,000th
737, Seattle Times, Mar. 14, 2018, at A1. Over the decades, it
evolved into a large, efficient “workhorse” on which millions
of passengers fly every day. Ben Mutzabaugh, Major Milestone
for Popular Plane, USA Today, Mar. 16, 2018, at 4D. The 737
became especially popular with “new ‘low-cost carrier’ airlines
that wanted an efficient, reliable flying machine with fast
turnaround times.” Gates, supra. Boeing has built more than
ten thousand 737s, making it “the best-selling jet of all time.”
Id. With the 737 ascendant, Boeing implemented design
changes incrementally, “buil[ding] on decades-old systems,
many that date back to the original version,” instead of
“gambl[ing] on developing a brand-new aircraft.” Jack Nicas
& Julie Creswell, Boeing’s 737 Max: ’60s Design Meets ’90s
Computing Power, N.Y. Times, Apr. 8, 2019, at A1 (first
3
quotation); Majority Staff of the House Committee on
Transportation & Infrastructure, 116th Cong., Final Committee
Report: The Design, Development & Certification of the
Boeing 737 MAX 40 (Sept. 2020) (“Committee Report”)
(second quotation).
In 2010, Airbus, “Boeing’s chief competitor in the civil
airplane market,” announced the A320neo, a more fuel-
efficient version of its flagship commercial jetliner. Committee
Report 38. The “significant cost savings” from this fuel
efficiency gave Airbus a “competitive advantage” and
threatened the 737’s market dominance. Id. American Airlines’
CEO reportedly called Boeing’s CEO to say that “[i]f Boeing
wanted [its] business, it would need to move aggressively.”
David Gelles et al., A Jet Born of a Frantic Race to Outdo a
Rival, N.Y. Times, Mar. 24, 2019, at A1.
To compete with the A320neo, Boeing developed the 737
MAX, which has more fuel-efficient engines than its
predecessor. Committee Report 42. But because those engines
are “larger,” they “had to be mounted further forward and
higher up on the wings in order to maintain sufficient ground
clearance.” Id. “These new characteristics had the potential to
cause the aircraft to stall and potentially crash in certain
conditions that were more likely to occur given the 737 MAX’s
new configuration,” Amici Curiae Br. 1, particularly during a
maneuver called a high-speed, wind-up turn. To counter that
tendency, Boeing wrote new software called the Maneuvering
Characteristics Augmentation System (MCAS), which was
designed to ensure that the plane could be flown safely. FAA,
Summary of the FAA’s Review of the Boeing 737 MAX: Return
to Service of the Boeing 737 MAX Aircraft 10 (Nov. 18, 2020)
(“FAA Report”).
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To keep the price of the 737 MAX competitive, Boeing
persuaded the FAA that the plane was so similar to its
predecessor that pilots who had flown the earlier model could
be trained to fly a 737 MAX “in a matter of hours using a
computer or tablet.” Deferred Prosecution Agreement, United
States v. The Boeing Co., No. 4:21-cr-00005-O, Dkt. No. 4, at
A-5 (N.D. Tex., Jan. 7, 2021). MCAS required no special
training, Boeing assured the FAA, because it “could only
activate during a high-speed, wind-up turn.” Id. at A-8. The
truth was quite different. As the company admitted in a
deferred prosecution agreement, a Boeing employee realized
that MCAS was “running rampant,” triggering at speeds that
occur during a standard commercial flight. Id. at A-10. “[S]o I
basically lied to the regulators (unknowingly).” Id. But rather
than coming clean, Boeing doubled down, reminding the FAA
that it had “agreed not to reference MCAS” in the Flight
Standardization Board report since “it’s outside the normal
operating envelope.” Id. at A-12, A-13. Because of this
deception, pilots received no “information about MCAS in
their airplane manuals and pilot-training materials.” Id. at
A-14. To make matters worse, MCAS itself had design defects.
“[A] single erroneously high . . . sensor input” could trigger
MCAS more than once, causing the plane’s nose to dip
repeatedly. Airworthiness Directives; The Boeing Company
Airplanes, 85 Fed. Reg. 74,560, 74,560 (Nov. 20, 2020).
Following a twenty-month review of the two crashes, the
FAA determined that most of the contributing “causes and
factors” involved MCAS. FAA Report 9. In the meantime,
Boeing had fixed MCAS, updating software and hardware,
revising manuals, and proposing new pilot training. Id. at 8–9.
Based on these improvements, in November 2020, the FAA
authorized the Boeing 737 MAX to reenter service.
Airworthiness Directives, 85 Fed. Reg. at 74,560; Operators of
Boeing Company Model 737–8 and Boeing Company Model
5
737–9 Airplanes: Rescission of Emergency Order of
Prohibition, 85 Fed. Reg. 74,260 (Nov. 20, 2020).
During the recertification process, FlyersRights filed a
FOIA request, followed by this lawsuit, seeking documents that
the FAA relied upon in determining whether to unground the
737 MAX. The FAA found more than 100 responsive
documents. It released some but withheld or redacted most
based on FOIA Exemption 4, which protects “trade secrets and
commercial or financial information obtained from a person
and privileged or confidential.” 5 U.S.C. § 552(b)(4). The FAA
determined that releasing these documents without redaction
would disclose “commercial . . . information obtained from”
Boeing that is “confidential.” See id. On cross-motions for
summary judgment, the district court sustained the FAA’s
application of Exemption 4.
FlyersRights appeals. “We review de novo a district
court’s decision to grant summary judgment,” evaluating
“whether the agency has sustained its burden of demonstrating
that the documents requested are exempt from disclosure.”
Perioperative Services & Logistics, LLC v. Department of
Veterans Affairs, 57 F.4th 1061, 1067 (D.C. Cir. 2023)
(internal quotation marks and ellipsis omitted).
II.
FlyersRights challenges the application of Exemption 4 on
four grounds. Each lacks merit.
First, FlyersRights disputes the FAA’s conclusion that the
withheld and redacted information is “confidential.” The
Supreme Court has observed that “confidential” can be read in
at least two senses. “In one sense, information communicated
to another remains confidential whenever it is customarily kept
private, or at least closely held, by the person imparting it.”
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Food Marketing Institute v. Argus Leader Media, 139 S. Ct.
2356, 2363 (2019). At the threshold, therefore, FlyersRights
accepts that under Supreme Court precedent, the information
“is customarily kept private” by Boeing. Id.“In another sense,” the Supreme Court continued,
“information might be considered confidential only if the party
receiving it provides some assurance that it will remain secret.”
Id. (emphasis added). FlyersRights does not argue that
Exemption 4 always requires an assurance of secrecy. Instead,
it proposes a more modest corollary: a person loses “‘any
reasonable expectation’” of confidentiality if it gives
documents to the government after receiving “‘an explicit
representation . . . that its confidential information will be
disclosed.’” FlyersRights Reply Br. 6 (quoting FAA Br. 23)
(typographical error corrected). The FAA “does not dispute”
FlyersRights’ proposed standard because “submitting
information to the government when the submitter knew or
reasonably should have known that the information would be
made public is antithetical to ‘confidential’ treatment.” FAA
Br. 23–24. The FAA insists, however, that it never told Boeing
that it would release these documents.
To demonstrate otherwise, FlyersRights cites four
statements by the FAA and two by Boeing. In a characteristic
example, the FAA Administrator told a House Committee that
“[w]e believe that transparency, open and honest
communication, and our willingness to improve our systems
and processes are the keys to restoring public trust in the FAA
and the safety of the 737 MAX.” The Boeing 737 MAX:
Examining the Federal Aviation Administration’s Oversight of
the Aircraft’s Certification: Hearing Before the House
Committee on Transportation & Infrastructure, 116th Cong.
14 (2019). FlyersRights argues that the Administrator’s
statement “could only reasonably be interpreted as meaning
7
that the FAA would publicly disclose all the essential
information needed to evaluate and assess its ungrounding
decision,” including every document at issue here.
FlyersRights Br. 23. We disagree. The FAA’s broad promises
of “transparency” and “open and honest communication” fall
far short of an “‘explicit representation’” (FlyersRights’ own
words) that the FAA would disclose the disputed documents.
FlyersRights Reply Br. 6 (quoting FAA Br. 23) (emphasis
added). Moreover, Boeing contends that disclosure would
“undermine [its] competitive position by allowing competitors
access to ideas, design details, certification methods, and
testing processes.” Allen Decl. ¶ 19, Joint Appendix (“J.A.”)
59; see FAA Br. 22 n.1 (agreeing that disclosure would
“harm . . . Boeing’s competitive position”). According to
Boeing, therefore, disclosure would run afoul of FAA policy
that the agency “must not release proprietary information
(descriptive, design, and substantiating data received from
applicants)” without “written permission from the applicant.”
FAA, Order 8110.4C, Type Certification (Mar. 28, 2007).
Given this context, no reasonable factfinder could conclude
that the FAA’s generic promises of transparency placed Boeing
on notice that the FAA would release these documents. Cf.
Washington Post Co. v. Department of Health & Human
Services, 865 F.2d 320, 326 (D.C. Cir. 1989) (applying “no
reasonable factfinder” standard in Exemption 4 case at
summary-judgment stage), abrogated in part on other grounds,
Food Marketing Institute, 139 S. Ct. at 2356.
The Boeing CEO’s statements are only slightly more
specific. He said in interviews that Boeing “will be transparent
on every subject, whether it is training, whether it’s the
certification process, everything along the way,” and that
“[w]e’re going to have the most open book the world has ever
seen on this subject.” Plaintiffs’ Statement of Material Facts as
to Which There Is No Genuine Issue ¶¶ 30–31; Defendant’s
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Response ¶¶ 30–31. These statements hardly amount to an
“explicit” commitment to release these particular proprietary
documents, let alone an indication that the FAA would do so.
FlyersRights Reply Br. 6 (quoting FAA Br. 23).
FlyersRights next challenges the FAA’s decision to
withhold or redact four documents containing the FAA’s own
comments. Exemption 4 protects only information “obtained
from a person,” 5 U.S.C. § 552(b)(4), and that “person” must
be “outside the government.” See Gulf & Western Industries,
Inc. v. United States, 615 F.2d 527, 529 (D.C. Cir. 1979). As
FlyersRights observes, the FAA did not “obtain from” Boeing
the comments that the FAA itself authored. But as we
explained in Gulf & Western, Exemption 4 protects
information third parties provide even when the government
incorporates that information into its own documents. There,
we upheld the redaction of an agency-authored report because
releasing it without redactions “would disclose data supplied to
the government from a person outside the government.” Id. at
530. The same is true here. FAA declarant Susan Cabler avers
that “[a]lthough [Boeing’s] information is incorporated into
FAA-authored comments, these comments nonetheless reveal
proprietary information originally provided to [the] FAA by
Boeing.” Cabler Decl. ¶ 51, J.A. 244. Just as the agency in Gulf
& Western permissibly redacted its own report, the FAA
permissibly redacted its own comments to avoid disclosing
confidential commercial information obtained from Boeing.
Citing a pair of district court opinions, FlyersRights urges
us to hold that Exemption 4 protects agency-authored materials
only where they contain third-party information “repeated
verbatim,” “slightly modified,” or “summarize[d],” not where,
as FlyersRights says happened here, the agency “analyzes” or
“substantially reformulate[s]” the information. See Naumes v.
Department of the Army, 588 F. Supp. 3d 23, 38 (D.D.C. 2022)
9
(third and fourth quotations); Southern Alliance for Clean
Energy v. Department of Energy, 853 F. Supp. 2d 60, 68
(D.D.C. 2012) (other quotations). But these standards appear
nowhere in the statute. To be sure, sometimes an agency’s
analysis or reformulation of confidential commercial
information can be disclosed without revealing the underlying
information, rendering Exemption 4 inapplicable. And it is
important that the agency sufficiently explain why information
that it generates cannot be released. Here, however, the FAA
has demonstrated that releasing its comments unredacted
would reveal confidential commercial information obtained
from Boeing, so Exemption 4 applies.
Next, FlyersRights argues that the FAA must disclose the
documents Boeing submitted to show compliance with FAA
regulations because those means-of-compliance documents
form “part of the binding law of the agency.” FlyersRights
Reply Br. 22. As we have explained, “an agency is not
permitted to develop ‘a body of secret law, used by it in the
discharge of its regulatory duties.’” Electronic Frontier
Foundation v. DOJ, 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting
Schlefer v. United States, 702 F.2d 233, 244 (D.C. Cir. 1983)
(some internal quotation marks omitted)). But no court has yet
applied this secret-law doctrine to limit the scope of Exemption
4. We need not consider whether that doctrine applies here
because Boeing’s private means of compliance form no part of
the FAA’s body of law, secret or otherwise.
True, the “FAA and some standards organizations publish
means of compliance that have already been accepted,” and
“applicants can choose to use these publicly available methods
to show compliance with FAA’s certification regulations.”
Cabler Decl. ¶ 29, J.A. 235. See, e.g., Accepted Means of
Compliance; Airworthiness Standards; Normal Category
Airplanes, 87 Fed. Reg. 13,911 (Mar. 11, 2022). Here,
10
however, Boeing developed proprietary means of compliance
“specifically related to its 737 MAX aircraft,” Cabler Decl.
¶ 29, J.A. 236, and FlyersRights identifies no regulation
requiring the FAA to allow Boeing, or anyone else, to use these
sui generis means of compliance for any other aircraft.
Accordingly, Boeing’s means of compliance do not
“‘bind[] . . . the public,’” “‘create or determine the extent of the
substantive rights and liabilities of a person,’” or “speak
authoritatively on the [agency’s] policy.” See Afshar v.
Department of State, 702 F.2d 1125, 1143, 1141 (D.C. Cir.
1983) (quoting Cuneo v. Schlesinger, 484 F.2d 1086, 1090
(D.C. Cir. 1973) and Federal Open Market Committee of the
Federal Reserve System v. Merrill, 443 U.S. 340, 352 (1979))
(first two quotations); Electronic Frontier Foundation, 739
F.3d at 9 (third quotation). In short, they are not law.
Finally, FlyersRights argues that the FAA failed to
disclose responsive information that can be segregated from
Boeing’s confidential commercial information. When an
agency demonstrates that records contain exempt information,
as the FAA has done, it is “entitled to a presumption that [it]
complied with the obligation to disclose reasonably segregable
material.” Sussman v. United States Marshals Service, 494
F.3d 1106, 1117 (D.C. Cir. 2007). To “rebut[] this
presumption,” the requester must offer, at least, “evidence that
would warrant a belief by a reasonable person” that the agency
failed to comply with its obligation. Id. (internal quotation
marks and citation omitted). FlyersRights has offered no such
evidence, claiming only that “it is apparent that the agency has
not shown that it would be unable reasonably to segregate the
information Appellants seek from Boeing’s proprietary
technical information.” FlyersRights Br. 38–39. Such
unsubstantiated assertions fail to rebut the presumption. See
Sussman, 494 F.3d at 1117 (rebutting presumption requires
some “quantum of evidence”). FlyersRights’ focus on
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“proprietary technical information” moves the goalposts.
Exemption 4 protects confidential commercial information, not
just proprietary technical information.
Even without the presumption, the FAA introduced
evidence sufficient to carry its burden on segregability. The
Vaughn index describes each document, and the Cabler
Declaration explains that “the withheld documents consist
almost entirely of Boeing’s proprietary technical data” and its
“proprietary methods of compliance.” Cabler Decl. ¶ 67, J.A.
249. Further tailoring the redactions, Cabler adds, “would
result in disclosure of only partial sentences or single sentences
that are entirely meaningless without the additional context of
the surrounding proprietary information.” Id. ¶ 67, J.A. 250.
On top of that, the record contains a Boeing paralegal’s
declaration explaining that the company’s confidential
information “comprise[s] almost the entirety of” the documents
and that even things “which in many documents would be
considered ancillary and releasable,” like tables of contents,
“present[] a roadmap to the methods, logic, and techniques that
Boeing uses to demonstrate compliance and obtain
certification.” Allen Decl. ¶ 23, J.A. 60. The FAA
independently evaluated Boeing’s objections and withheld or
redacted material only where the agency agreed that Exemption
4 applies. Cabler Decl. ¶ 45, J.A. 242 (“The Aircraft
Certification Service’s FOIA coordinator and subject matter
experts determined that the vast majority of Boeing’s
objections were valid; however, in circumstances where the
Aircraft Certification Service disagreed with these
objections, . . . Boeing agreed to withdraw the disputed
objections, and the material was released to FlyersRights.”).
FlyersRights relies on Stolt-Nielsen Transportation
Group v. United States, where our court held that the
government failed to demonstrate that it released all reasonably
12
segregable material because it offered only “a conclusory
affidavit.” 534 F.3d 728, 734 (D.C. Cir. 2008). As explained
above, however, the FAA’s declarations are not at all
conclusory. See, e.g., Porup v. CIA, 997 F.3d 1224, 1239 (D.C.
Cir. 2021) (“Ms. Shiner attested that the Agency had
‘conducted a page-by-page and line-by-line review, and
released all reasonably segregable, non-exempt information’
within responsive records. Moreover, Ms. Shiner ‘determined
that no additional information may be released without
divulging information that . . . falls within the scope of one or
more FOIA exemptions.’ Those sworn statements sufficiently
establish that no portions of the withheld documents may be
segregated and released.”) (some internal quotation marks and
citations omitted).
At oral argument, we and the parties focused on two
documents containing FAA comments, which the agency
withheld in their entirety. When an agency incorporates exempt
information into its own comments, it will often be able to
release at least part of those comments without revealing the
exempt information. Here, however, the FAA explained that
these documents “contained FAA comments to Boeing’s
project deliverables, which in themselves would reveal
technical data and Boeing’s proprietary methods of
compliance.” Cabler Decl. ¶ 51, J.A. 244. Notably, the FAA
released two other documents containing its comments in
redacted form. That fact, coupled with the FAA’s
nonconclusory affidavits and Vaughn index, demonstrates that
it understands the difference between comments that reveal
Boeing’s confidential information and comments that do not.
Accordingly, even as to these two withheld documents, the
FAA has demonstrated that it complied with its segregability
obligations.
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III.
For the foregoing reasons, we affirm.
So ordered.