eileen m. decker united states attorney › wp-content › uploads › 2016 › 04 ›...

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EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ALARICE M. MEDRANO (State Bar No. 166730) Assistant United States Attorney Room 7516, Federal Building 300 North Los Angeles Street Los Angeles, California 90012-9834 Telephone: (213)894-0460 Fax: (213)894-7819 [email protected] Attorneys for Defendant, Federal Aviation Administration1

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

JORGE ALEJANDRO ROJAS,

Plaintiff,

v.

FEDERAL AVIATION ADMINISTRATION,

Defendant.

Case No. CV 15-5811 CBM (SSx) Hearing Date: May 10, 2016 Time: 10:00 a.m. [Before the Honorable Consuelo B. Marshall]

1. DEFENDANT’S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT;

2. MEMORANDUM OF POINTS AND AUTHORITIES.

3. DECLARATION OF JOHN C. SCOTT

4. DECLARATION OF YVETTE A. ARMSTEAD;

5. EXHIBITS AND VAUGHN INDEX

1 Plaintiff’s Complaint names the Federal Aviation Administration as the

Defendant in this action. Pursuant to 5 U.S.C. § 552(f), government agencies are the only proper defendants in a suit under the Freedom of Information Act. Thus, the Department of Transportation is the proper Defendant in the case.

Case 2:15-cv-05811-CBM-SS Document 25 Filed 04/04/16 of 22 Page ID #:110

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TABLE OF CONTENTS

DESCRIPTION PAGE

MEMORANDUM OF POINTS AND AUTHORITIES ................................................... 1

I. INTRODUCTION ................................................................................................... 1

II. FACTUAL BACKGROUND .................................................................................. 2

A. The Relationship Between FAA and APTMetrics ........................................ 2

B. Plaintiff’s FOIA Request ............................................................................... 3

III. LEGAL STANDARD ............................................................................................. 5

A. The Applicable FOIA Standards ................................................................... 5

B. The Applicable Summary Judgment Standards ............................................ 6

IV. ARGUMENT ........................................................................................................... 7

A. The FAA Conducted an Adequate Search for Responsive Documents ........ 7

B. The FAA Appropriately Withheld Records Exempt from Disclosure Under FOIA Exemption 5 ............................................................................. 8

1. The FAA has Provided a Sufficiently Detailed Vaughn Index to Identify and Explain its Withholdings ............................................ 8

2. The FAA Properly Applied FOIA Exemption 5 ................................. 9

a. The Attorney Work-Product Privilege ................................... 11

b. The Attorney-Client Privilege ................................................ 12

3. The Records at Issue Were Not “Reasonably Segregable” .............. 13

V. CONCLUSION ...................................................................................................... 14


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TABLE OF AUTHORITIES

DESCRIPTION PAGE

CASES

ACLU of Southern Cal. v. Dep’t of Homeland Security, 2012 WL 5342411 (C.D. Cal. Oct. 25, 2012) .................................................... 7, 8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................... 6

Armstrong v. Exec. Office of the President, 97 F.3d 575 (D.C. Cir. 1996) ................................................................................ 14

Badhwar v. U.S. Dep't of the Air Force, 829 F.2d 182 (D.C. Cir. 1987) .............................................................................. 10

Beltranena v. U.S. Dep’t of State, 821 F.Supp.2d 167 (D.D.C. 2011) .......................................................................... 6

Billington v. Dep’t of Justice, 233 F.3d 581 (D.C. Cir. 2000) .............................................................................. 14

Brotherhood of Locomotive Eng'rs v. Surface Transp Bd., No. 96-1153, 1997 WL 446261 (D.D.C. July, 31, 2007) ..................................... 12

Campaign for Responsible Transplantation v. FDA, 180 F. Supp. 2d 29 (D.D.C. 2001) .......................................................................... 8

Canning v. Dep’t of Justice, 567 F. Supp. 2d 104 (D.D.C. 2008) ...................................................................... 14

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) .......................................... 6

Center for Nat’l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003) ................................................................................ 5

CIA v. Sims, 471 U.S. 159 (1985) ............................................................................................... 5

Citzens for Responsibility & Ethics in Wash. v. DHS, 514 F. Supp. 2d 36, 44 (D.D.C. 2007) .................................................................. 10

Clay v. Dep’t of Justice, 680 F. Supp. 2d 239 (D.D.C. 2010) ........................................................................ 8

CNA Fin.Corp. v. Donovan, 830 F.2d 1132 (D.C. Cir. 1987) ............................................................................ 10

Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1984) ........................................................................ 12, 13


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Ctr. for Biological Diversity, 625 F. Supp 892. .............................................................................................. 12, 13

Def. of Animals v. NIH, 543 F. Supp. 2d 83 (D.D.C. 2008) ........................................................................... 8

Department of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) ................................................................................................ 6, 9

Hertzberg v. Veneman, 273 F. Supp. 2d 67 (D.D.C. 2003) .................................................................. 11, 12

Hinton v. Dep’t of Justice, 844 F. 2d. 126 (D.C. Cir. 1988) .............................................................................. 8

John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) ........................................................................................... 5, 6

Kamman v. IRS, 56 F.3d 46 (9th Cir. 1995) ...................................................................................... 6

Kay v. FCC, 976 F. Supp. 23 (D.D.C. 1997) ............................................................................... 8

King v. U.S. Dep’t of Justice, 830 F.2d 210 (D.C. Cir. 1987) ............................................................................ 6, 8

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ............................................................................................... 6

Krikorian v. Dep’t of State, 984 F.2d 461 (D.C. Cir. 1993) .............................................................................. 14

Lane v. Dep’t of Interior, 523 F.3d 1128 (9th Cir. 2008) ............................................................................ 7, 8

Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) ................................................................................ 7

Lewis v. IRS, 823 F.2d 375 (9th Cir. 1987) .................................................................................. 6

Lion Raisins v. Dep’t of Agriculture, 354 F.3d 1072 (9th Cir. 2004) ................................................................................ 9

Maricopa Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089 (9th Cir. 1997) .............................................................................. 10

Mead Data Central Inc. v. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ........................................................................ 13, 14

Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) ................................................................................ 5, 6


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Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 ........................................................................................................... 9

Nat’l Resources Defense Council v. Dep’t of Defense, 388 F. Supp. 2d 1086 (C.D. Cal. 2005) .................................................................. 9

Nevada v. Doe, 517 F. Supp. 2d 1245 (D. Nev. 2007) ................................................................... 11

Oglesby v. U.S. Dep’t of the Army 920 F.2d 57, 68 (D.C. Cir. 1990), ....................................................................... 7, 8

Ryan v. DOJ, 617 F.2d 781 (D.C. Cir. 1980) .............................................................................. 10

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) .............................................................................. 7

Sakamoto v. EPA, 443 F. Supp. 2d 1182 (N.D. Cal. 2006) ................................................................ 10

Schoenman v. FBI, 573 F. Supp. 2d 119 (D.D.C. 2008) ...................................................................... 11

Shacket v. United States, 339 F. Supp. 2d 1092 (S.D. Cal. 2004) ................................................................ 11

Soucie v. David, 448 F.2d 1067 ....................................................................................................... 10

United States v. Graf, 610 F.3d 1148 (9th Cir. 2010) .............................................................................. 12

United States v. Martin, 278 F.3d 988 (9th Cir. 2002) ................................................................................ 12

United States v. Weber Aircraft Corp., 465 U.S. 792 (1984) ............................................................................................... 9

Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981). .............................................................................. 13

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) .................................................................... 1, 2, 4, 7

Wash. v. DHS, 514 F. Supp. 2d 36 (D.D.C. 2007) ......................................................................... 10

Weisberg v. Dep’t of Justice, 705 F.2d 1344 (D.C. Cir. 1983) .............................................................................. 7

Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ................................................................................ 7


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Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681 (9th Cir. 2012) .................................................................................. 9

STATUTES

5 U.S.C. §552 ..................................................................................................................... 1

5 U.S.C. § 552(a)(4)(B) ..................................................................................................... 6

5 U.S.C. § 552(b) ......................................................................................................... 5, 14

5 U.S.C. §552(b)(5) .............................................................................................. 1, 4, 9, 10

5 U.S.C. § 552(f) ................................................................................................................. i

RULES

21 C.F.R. §20.62 ................................................................................................................................... 9

29 CFR 1614.204 ............................................................................................................... 2

Fed. R. Civ. P. 56(a) ........................................................................................................... 6

Fed.R.Civ.P. 26(b)(3) ....................................................................................................... 11


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NOTICE OF MOTION AND MOTION TO DISMISS

PLEASE TAKE NOTICE that on May 10, 2016, at 10:00 a.m., or as soon

thereafter as the matter may be heard, Defendant Federal Aviation Administration

(“FAA”) will bring on for hearing a Motion for Summary Judgment, before the

Honorable Consuelo B. Marshall, United States District Judge, in Courtroom 2 of the

Spring Street Courthouse, 312 North Spring Street, Los Angeles, California 90012.

Defendant respectfully moves this Court for summary judgment pursuant to

Federal Rule of Civil Procedure 56, on the grounds that there is no genuine dispute of

material fact and Defendant is entitled to judgment on the entire case as a matter of law.

This Motion is based upon this Notice, the Memorandum of Points and Authorities filed

herein, the Declarations of Yvette A. Armstead and John C. Scott, and the exhibits and

Vaughn Index attached thereto, the pleadings previously filed in this action, and any oral

argument permitted at the hearing on this Motion.

This Motion is made following a conference of counsel as required by Local Rule

7-3, which took place on March 22, 2016.

Dated: April 4, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DORORTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division /s/ Alarice M. Medrano ALARICE M. MEDRANO Assistant United States Attorney Attorneys for Defendant, Federal Aviation Administration


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552,

Plaintiff Jorge Alejandro Rojas (“Plaintiff”) seeks documents from the Federal Aviation

Administration (“FAA”) related to a March 2015 Air Traffic Control Specialist vacancy

announcement for which Plaintiff applied. Plaintiff seeks, in pertinent part, “information

regarding the empirical validation of the biographical assessment in the rejection

notification. This includes any report, created by, given to, or regarding APTMetrics’

evaluation and creation and scoring of the assessment.” The FAA conducted a search

and located relevant documents, but withheld the documents pursuant to Exemption 5 of

the FOIA. Exemption 5 allows for the withholding of documents prepared by an

attorney, or at the direction of any attorney, in reasonable anticipation of litigation,

pursuant to attorney work product privilege. In addition, the attorney-client privilege

under Exemption 5 allows for withholding of confidential communications between an

attorney and client relating to legal matters for which the client sough professional

advice.

As of the date of this filing, the FAA has satisfied all of its obligations with

respect to Plaintiff’s FOIA request. The FAA invoked a valid FOIA exemption to

withhold the documents at issue. See 5 U.S.C. §552(b)(5). Moreover, the FAA clearly

identified and described these withholdings and the exemptions in the attached Vaughn

index. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973) (setting forth the

procedural requirements for identifying documents at issue in a FOIA case). The FAA

only withheld documents containing information protected by the attorney-client

privilege and/or the attorney work-product privilege, and prepared in anticipation of

litigation. Furthermore, the FAA reviewed the documents and determined that no

information was reasonably segregable. Because there are no material facts in dispute

with regard to the adequacy of FAA’s search or the propriety of FAA’s withholding of

responsive documents, the FAA is entitled to summary judgment with respect to all


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claims asserted by Plaintiff in this action.

II. FACTUAL BACKGROUND

A. The Relationship Between FAA and APTMetrics

Beginning in 2012, the FAA undertook a comprehensive review of the Air Traffic

Control Specialist (“ATCS”) selection and hiring process. (See attached Declaration of

Yvette Armstead, Assistant Chief Counsel of Employment and Labor Law, Office of

Chief Counsel, FAA (“Armstead Dec.”), ¶5.)

In or about November 2012, the FAA retained Applied Psychological Techniques,

Inc. (“APTMetrics”) to assist in a thorough review and analysis of the ATCS hiring

process, recommend improvements, and assist in implementing those recommendations.

(Id. at ¶6.) The FAA awarded a contract to APTMetrics to conduct this work. (See

attached Declaration of John C. Scott, Chief Operating Officer of APTMetrics (“Scott

Dec.”), ¶3.)

In 2013, APTMetrics developed and validated a Biographical Assessment (“BA”)

test. (Scott Dec., ¶4; Armstead Dec., ¶7.) The BA is a computerized test that measures

the following job-related characteristics: flexibility; risk tolerance; self-confidence;

dependability; resilience; stress tolerance; cooperation; teamwork; and, rules application.

(Scott Dec., ¶5.)

In early 2014, the FAA issued a vacancy announcement for entry level ATCS

positions. The BA test was used in the 2014 hiring process to screen applicants for the

ATCS positions. Armstead Dec., ¶7 and fn. 1.)

In March 2014, an unsuccessful applicant for an ATCS position filed a “Class

EEO Complaint – 29 CFR 1614.204 Certification Request” letter with the FAA’s Office

of Civil Rights. The class was represented by Plaintiff’s current counsel, Mr. Pearson.

(Id. at ¶8.)

In April 2014, the same applicant attempting to represent a group of 2014

unsuccessful applicants filed a “Formal Complaint” and a petition to be certified as a

class. Mr. Pearson represented the class. (Id. at ¶9.)


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In the summer and fall of 2014, the FAA revised the BA ahead of the 2015

vacancy announcement and APTMetrics performed validation work related to the 2015

BA. (Id. at ¶10.)

In late November 2014, the FAA Office of Chief Counsel had several

conversations with John Scott, the Chief Operating Officer of APTMetrics, regarding the

firm’s validation analysis. The FAA asked Mr. Scott to summarize elements of his

validation work related to the use of the BA as an instrument in the ATCS selection

process. (Id.; see also, Scott Dec., ¶¶7-8.)

In December 2014, APTMetrics provided FAA counsel with an initial summary of

the validation work. APTMetrics supplemented this information in January 2015.

(Armstead Dec., ¶11; Scott Dec., ¶7.)

In early 2015, the FAA issued a separate vacancy announcement for entry level

ATCS positions. Again, the FAA used the BA as a selection tool in the ATCS hiring

process. (Armstead Dec., ¶7 and fn. 1.)

In April 2015, an unsuccessful applicant for the 2015 ATCS positions made

counselor contact with the FAA’s Office of Civil Rights. He was represented by Mr.

Pearson. (Id. at ¶12.)

In August 2015, a group of unsuccessful applicants filed a “Formal Complaint”

and a petition to be certified as a class related to the 2015 ATCS hiring process. Mr.

Pearson represented the class. (Id. at ¶13.)

B. Plaintiff’s FOIA Request

On or about May 24, 2015, via e-mail, Plaintiff submitted the following FOIA

request to the FAA:

“1) I am requesting all records concerning my application for the March 2015 Air

Traffic Control Specialist hiring announcement. This includes information

regarding the reason for failing the biographical assessment administered for

FAA-ATO-15-ALLSRCE-40166.

2) I am requesting all emails and other written communications (Lync, documents,


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presentations, etc.) related to the scoring of the biographical assessment between

individuals in the Office of the Administrator (AOA)2, Air Traffic Organization

(ATO) , and Human Resources (AHR) Line of Business.

3) 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.”

The FOIA request was assigned tracking number: 2015-006130. (Armstead Dec., ¶¶3-

4, 14; and Exh. A.)

On June 18, 2015, the FAA initially responded to Plaintiff’s FOIA request. (Id.)

The Agency informed Plaintiff that documents were located in regard to the third request

for empirical validation of the biographical assessment, but were being withheld

pursuant to FOIA Exemption 5 because the documents were protected under the

attorney-client and attorney-work product privileges and were pre-decisional and

deliberative. 5 U.S.C. §552(b)(5). (Id.)

On June 25, 2015, Plaintiff filed an administrative appeal based upon the

Agency’s initial response. The appeal was assigned FOIA Control No. 2015-006130A.

(Id. at ¶15; and Exh. B.)

On July 31, 2015, Plaintiff filed this FOIA action in the District Court. (See Dkt.

#1.)

On October 7, 2015, the FAA responded to Plaintiff’s administrative appeal. The

Agency determined that a portion of Plaintiff’s request related to the request for

empirical validation of the biographical assessment should be remanded back to the

FAA’s Office of the Chief Counsel (“OCC”) for additional action. (Armstead Dec., ¶16;

2 Although other offices within the FAA separately responded to Plaintiff’s FOIA

request and returned some records, Plaintiff maintains that those records are not at issue in this instant action. Plaintiff appealed the responses from those organizations and is currently waiting for further agency action. (See Plaintiff’s Statement in Joint Report (Dkt. #18), at p. 2.)


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and Exh. C.)

After the matter was remanded, in late October 2015, the OCC conducted a

second search for documents responsive to Plaintiff’s FOIA request. (Id. at ¶17.) The

Agency located three responsive documents that discussed the validation of the 2015 BA

test. Those documents are identified in the Vaughn Index attached the Declaration of

Ms. Armstead. (Id. at ¶¶18-19; and Exh. E.)

On December 10, 2015, the FAA provided Plaintiff with a determination letter

regarding his appeal. The Agency determined that Plaintiff’s request for information

related to the empirical validation of the BA test was protected under Exemption 5 of the

FOIA. (Id. at ¶20; and Exh. D.)

III. LEGAL STANDARD

A. The Applicable FOIA Standards

FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure

unless information is exempted under clearly delineated statutory language.” John Doe

Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). “Congress recognized, however,

that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159,

166-167 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable

balance between the right of the public to know and the need of the Government to keep

information in confidence to the extent necessary without permitting indiscriminate

secrecy.’” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6

(1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423); see also Center for Nat’l Sec.

Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck

by Congress between the public’s right to know and the government’s legitimate interest

in keeping certain information confidential.”).

FOIA mandates disclosure of government records unless the requested

information falls within one of nine enumerated exceptions. See 5 U.S.C. § 552(b). “A

district court only has jurisdiction to compel an agency to disclose improperly withheld

agency records,” i.e., records that do “not fall within an exemption.” Minier v. CIA, 88


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F.3d 796, 803 (9th Cir. 1996); see also 5 U.S.C. § 552(a)(4)(B) (giving the district court

jurisdiction only “to enjoin the agency from withholding agency records and to order the

production of any agency records improperly withheld from the complainant”);

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)

(“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that

an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’”). Although FOIA’s

statutory exemptions are to be narrowly construed, see Department of the Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001), courts must also give those

exemptions “meaningful reach and application,” John Doe Agency, 493 U.S. at 152.

“Requiring an agency to disclose exempt information is not authorized.” Minier, 88 F.3d

at 803.

B. The Applicable Summary Judgment Standards

FOIA cases are typically resolved on motions for summary judgment under

Federal Rule of Civil Procedure 56. See, e.g. Beltranena v. U.S. Dep’t of State, 821

F.Supp.2d 167, 175 (D.D.C. 2011). Summary judgment is appropriate when there is “no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The party seeking summary judgment must demonstrate an absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). Once the movant has met its burden, the non-movant “may not rest

upon the mere allegations or denials of his pleading, but . . . must set forth specific facts

showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.

In a FOIA action, the government bears the burden of proving that the withheld

information falls within the exemptions it invokes. See 5 U.S.C. §552(a)(4)(B); King v.

U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). To meet its burden, an

agency may rely on “relatively detailed and non-conclusory” declarations, Kamman v.

IRS, 56 F.3d 46, 48 (9th Cir. 1995) (quoting Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.


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1987)); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation

marks and citation omitted), and an index of the information withheld, Vaughn, 484 F.2d

at 827-28. A court may grant summary judgment to the government entirely on the

basis of information set forth in an agency’s affidavit or declaration if it provides “the

justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the

information withheld logically falls within the claimed exemption, and [is] not

controverted by either contrary evidence in the record nor by evidence of agency bad

faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation

marks and citation omitted). “Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears logical or plausible.” Wolf v. CIA, 473 F.3d 370,

374-375 (D.C. Cir. 2007) (internal quotation marks and citations omitted).

IV. ARGUMENT

The Declarations of Ms. Armstead, an Assistant Chief Counsel for the FAA, and

Mr. Scott, the Chief Operating Officer of APTMetrics, along with the Vaughn Index,

demonstrate that the FAA properly determined that the documents at issue in this case

fall squarely within the FOIA Exemption 5 for attorney work-product and attorney-client

communications.

A. The FAA Conducted an Adequate Search for Responsive Documents

An agency is obligated to conduct a search that is “‘reasonably calculated to

uncover all relevant documents.’” ACLU of Southern Cal. v. Dep’t of Homeland

Security, 2012 WL 5342411, at *1 (C.D. Cal. Oct. 25, 2012) (quoting Lane v. Dep’t of

Interior, 523 F.3d 1128, 1139 (9th Cir. 2008)); see also Weisberg v. Dep’t of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). A reasonable search is one that covers those locations

where responsive records are likely to be located. Oglesby v. U.S. Dep’t of the Army,

920 F.2d 57, 68 (D.C. Cir. 1990), superseded on other grounds by Electronic FOIA

Amendments, Pub.L. No. 104-231, §8(c), 110 Stat. 3048, 3052 (1996). To satisfy its

obligation, “the agency must show that it made a good faith effort to conduct a search for

the requested records, using methods which can be reasonably expected to produce the


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information requested.” Id.; see ACLU of Southern Cal., 2012 WL 5342411 at *1.

The agency bears the burden of demonstrating the adequacy of the search by

providing a declaration that contains “reasonably detailed descriptions of the documents

and allege facts sufficient to establish an exemption.” Lane, 523 F.3d at 1139. Such

affidavits should “‘set[] forth the search terms and type of search performed, and aver[]

that all files likely to contain responsive materials . . . were searched.’” Clay v. Dep’t of

Justice, 680 F. Supp. 2d 239, 245 (D.D.C. 2010) (quoting Ogelsby, 920 F.2d at 68); In

Def. of Animals v. NIH, 543 F. Supp. 2d 83, 98 (D.D.C. 2008) (“To meet its burden, the

agency may submit affidavits or declarations that explain both in reasonable detail and in

a non-conclusory fashion the scope and method of the agency’s search.”). Here, the

Armstead Declaration establishes that the FAA’s search was reasonably calculated to

uncover records in the FAA’s possession responsive to Plaintiff’s FOIA Request.

(Armstead Dec., ¶17.)

B. The FAA Appropriately Withheld Records Exempt from Disclosure

Under FOIA Exemption 5

1. The FAA has Provided a Sufficiently Detailed Vaughn Index to

Identify and Explain its Withholdings

The purpose of a Vaughn index is to ameliorate the imbalance inherent to FOIA

litigation: that the agency knows the contents of its records while the Plaintiff and the

Court do not. Ogelsby, 79 F.3d at 1178; see King v. Dep’t of Justice, 830 F.2d 210, 218

(D.C. Cir. 1987); Campaign for Responsible Transplantation v. FDA, 180 F. Supp. 2d

29, 32 (D.D.C. 2001). A Vaughn index is intended, in part, to afford the requester a

meaningful opportunity to challenge the agency’s claims of exemption. Ogelsby, 79

F.3d at 1178. There is no set formula for a Vaughn index. Rather, “it is well established

that the critical elements of the Vaughn index lie in its function, and not in its form.”

Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C. 1997); see Hinton v. Dep’t of Justice, 844 F.

2d. 126, 129 (D.C. Cir. 1988) (holding that a Vaughn index is sufficient if “the requester

and the trial judge [are] able to derive from the index a clear explanation of why each


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document or portion of a document withheld is putatively exempt from disclosure”). In

this Circuit, this means “identify[ing] each withheld document, describ[ing] its contents

to the extent possible, and giv[ing] ‘a particularized explanation of why each document

falls within the claimed exemption.’” Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d

681, 695 (9th Cir. 2012) (quoting Lion Raisins v. Dep’t of Agriculture, 354 F.3d 1072,

1082 (9th Cir. 2004)).

In this case, the FAA has filed a Vaughn index that provides a detailed description

of each record withheld from Plaintiff; the date of the record, if applicable; the author

and intended recipient of the record, if known; the number of pages of the entire record,

including attachments; the number of pages withheld; the claim of relevant exemptions;

and a description of the withheld or redacted document. As explained in the Vaughn

index and below, the information that FAA redacted and withheld from the records

produced to Plaintiff is exempt from disclosure under FOIA Exemption 5. See 5 U.S.C.

§§ 552(b)(5).

2. The FAA Properly Applied FOIA Exemption 5

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party . . . in litigation

with the agency.” 5 U.S.C. § 552(b)(5); see also 21 C.F.R. §20.62. Courts construe this

language to exempt those documents that would not be available to an agency’s

opponent in a civil discovery context and to incorporate all evidentiary privileges that

would be available in that context. Nat’l Labor Relations Bd. v. Sears, Roebuck & Co.,

421 U.S. 132, 148-49 (1975 (“Sears”) (holding that Exemption 5 exempts those

documents that would be privileged as deliberative process, attorney-client

communications, and attorney work-product); see also Dep’t of Interior v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); United States v. Weber Aircraft

Corp., 465 U.S. 792, 799 (1984); Nat’l Resources Defense Council v. Dep’t of Defense,

388 F. Supp. 2d 1086, 1097 (C.D. Cal. 2005) (holding that “Exemption 5 entitles an

agency to withhold from the public inter-agency or intra-agency records that are


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otherwise protected by the attorney-client privilege, the attorney work-product privilege,

or the ‘deliberative process’ privilege) (quoting Maricopa Audubon Soc’y v. United

States Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997)).

The threshold issue under Exemption 5 is whether the records in question qualify

as “inter-agency or intra-agency memorandums.” 5 U.S.C. § 552(b)(5). The

information withheld pursuant to Exemption 5 here — records relating to FAA’s hiring

process for Air Traffic Control Specialist, among other issues — clearly satisfy this

threshold.

Moreover, although APTMetrics is an outside agency, federal courts have given

the “inter-agency” portion of Exemption 5 an expansive reading, recognizing that federal

agencies frequently have a need for the opinions and recommendations of temporary

consultants and that such advice can play an integral function in an agency’s decision-

making. See Soucie v. David, 448 F.2d 1067, 1078 N. 44 (D.C. Cir. 1971); CNA

Fin.Corp. v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987) (“[F]ederal agencies

occasionally will encounter problems outside their [expertise], and it clearly is preferable

that they enlist the help of outside experts skilled at unraveling their knotty

complexities.”); Ryan v. DOJ, 617 F.2d 781, 790 (D.C. Cir. 1980) (“Congress apparently

did not intend 'inter-agency or intra-agency' to be rigidly exclusive terms.”) Where

agencies seek outside advice in such matters, the consultants effectively function as

agency employees. See e.g., Badhwar v. U.S. Dep't of the Air Force, 829 F.2d 182, 184-

85 (D.C. Cir. 1987) (upholding application of Exemption 5 to material supplied by

outside contractors); Citizens for Responsibility & Ethics in Wash. v. DHS, 514 F. Supp.

2d 36, 44 (D.D.C. 2007) (protecting documents prepared by contractors for FEMA);

Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1191 (N.D. Cal. 2006) (upholding agency's

invocation of Exemption 5 to protect documents prepared by private contractor hired to

perform audit for agency).

Here, as set forth in the Armstead and Scott Declarations, the FAA retained

APTMetrics to conduct a thorough review of the ATCS hiring process, to develop a


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Biographical Assessment test to be used in that process and to validate the test.

Although the FAA initially retained APTMetrics in 2012, their work has spanned several

different, yet related, aspects of the ATCS selection process. In addition, their scope of

work has specifically included assistance to the FAA in anticipation of litigation against

the agency concerning the ATCS hiring process and specifically, the use of the BA in

this case. (See Armstead Dec., ¶¶22-23; Scott Dec., ¶7-8.) Thus, FOIA Exemption 5 is

properly applied to the documents provided by APTMetrics to the FAA in this case.

a. The Attorney Work-Product Privilege

The attorney work-product privilege incorporated into Exemption 5 protects

documents and other memoranda prepared by an attorney, or at the direction of an

attorney, in contemplation of litigation. See Fed.R.Civ.P. 26(b)(3) (codifying privilege

in Federal Rules of Civil Procedure). Work-product protection is appropriate when the

non-attorney acts as the agent of the attorney as APTMetrics did in this case. See

Shacket v. United States, 339 F. Supp. 2d 1092, 1096 (S.D. Cal. 2004) (holding it

“irrelevant” that report withheld pursuant to work-product privilege was prepared by IRS

Special Agent, not attorney; observing that privilege extends to an attorney “or other

representative of a party”); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 76 (D.D.C. 2003)

(rejecting claim that privilege is limited to materials prepared by attorney, and citing

Fed.R.Civ.P. 26(b)(3) for proposition that privilege extends to documents created at

direction of attorney).

Moreover, this privilege is not limited to civil proceedings, but rather extends to

administrative proceedings as well. See, e.g., Schoenman v. FBI, 573 F. Supp. 2d 119,

143 (D.D.C. 2008) (upholding use of privilege for documents “created by an attorney in

the context of an ongoing administrative proceeding that eventually resulted in

litigation”); Nevada v. Doe, 517 F. Supp. 2d 1245, 1260 (D. Nev. 2007) (noting that

privilege applies to administrative proceedings, as long as they are “adversarial”).

In a situation where a document may have been created for more than one

purpose, the work-product privilege has been found to apply if the agency can show that


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the document was created at least in part because of the prospect of litigation. See

Hertzberg, 273 F. Supp. 2d at 80 (D.D.C. 2003) (rejecting “primary purpose” test);

Brotherhood of Locomotive Eng'rs v. Surface Transp Bd., No. 96-1153, 1997 WL

446261, at *6 (D.D.C. July, 31, 2007) (holding that privilege applies where document

was created “in part” for litigation); Charles A. Wright, Arthur Miller, and Richard L.

Marcus, 8 Federal Practice and Procedure 343 (1994) (discussing proper interpretation of

work-product privilege).

Here, the Declarations of Ms. Armstead and Mr. Scott show that following the

filing of an EEO Complaint regarding the ATCS hiring practices, the FAA requested that

APTMetrics assist in a validation analysis of the BA test. (See Armstead Dec., ¶¶7-10;

Scott Dec., ¶¶6-8.) Those documents were prepared in anticipation of litigation in both

administrative proceedings and before the district court. Id. Thus, the FAA properly

asserted the attorney work-product privilege under FOIA Exemption 5 in this case in

order to protect the documents at issue.

b. The Attorney-Client Privilege

The FAA asserted Exemption 5 to protect information covered by the attorney-

client privilege. The attorney-client privilege “extends to situations in which the agency

is consulting its attorney ‘as would any private party seeking advice to protect personal

interests.’” Ctr. for Biological Diversity, 625 F. Supp. at 892 (quoting Coastal States

Gas Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1984). “An attorney-

client privilege is established ‘(1) [w]hen legal advice of any kind is sought (2) from a

professional legal adviser in his or her capacity as such, (3) the communications relating

to that purpose, (4) made in confidence (5) by the client, (6) are, at the client's instance,

permanently protected (7) from disclosure by the client or by the legal adviser (8) unless

the protection be waived.’” Id. (quoting United States v. Martin, 278 F.3d 988, 999 (9th

Cir. 2002); see also United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010). The

privilege encompasses confidential facts communicated by the client to the attorney, as

well as opinions rendered by the attorney based on those confidential facts. Id. (quoting


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Mead Data Central Inc. v. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). This

privilege covers the specifics of a confidential attorney-client communication, even

when third parties know the underlying subject matter. Upjohn Co. v. United States, 449

U.S. 383, 395-96 (1981). Unlike the work-product doctrine, the attorney-client privilege

of Exemption 5 is not limited to the context of litigation. Coastal States Gas Corp., 617

at 862 (“The privilege is not limited to communications made in the context of litigation

or even a specific dispute, but extends to all situations in which an attorney’s counsel is

sought on a legal matter.”).

In this case, the FAA withheld certain information on the basis of the attorney-

client privilege incorporated into Exemption 5. (Armstead Dec., ¶24.) The withheld

information consists of records between counsel and client, including legal advice of

counsel and/or records that were not disclosed outside of the attorney-client relationship.

(See Vaughn Index at Exh E.) The agency closely reviewed these documents and the

agency described each withheld document with sufficient detail in the Vaughn index.

(Armstead Dec., ¶¶17-19; and Exh E.) Because these communications contained legal

advice, the agency properly withheld the records as attorney-client privileged. Ctr. for

Biological Diversity, 625 F. Supp. at 892 (quoting Coastal States Gas Corp., 617 F.2d at

863).

The disclosure of this attorney-client privileged information would strip away the

very underpinnings of the attorney-client privilege, as clients would be less likely to

raise potential issues candidly with counsel if they anticipated public disclosure of such

matters, and the system as a whole would suffer. Upjohn Co., 449 U.S. at 392-97.

Accordingly, the agency properly withheld these attorney-client privileged

communications from public disclosure under Exemption 5.

3. The Records at Issue Were Not “Reasonably Segregable”

FOIA requires that if a record contains information that is exempt from disclosure,

an agency must disclose any “reasonably segregable” information after deletion of the

exempt information, unless the non-exempt portions are “inextricably intertwined with


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exempt portions.” 5 U.S.C. § 552(b); see Billington v. Dep’t of Justice, 233 F.3d 581,

586 (D.C. Cir. 2000); Krikorian v. Dep’t of State, 984 F.2d 461, 466 (D.C. Cir. 1993);

Mead, 566 F.2d at 260. To establish that all reasonably segregable, non-exempt

information has been disclosed, an agency need only show “with reasonable specificity”

that the information it has withheld cannot be further segregated. Armstrong v. Exec.

Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996); see Canning v. Dep’t of

Justice, 567 F. Supp. 2d 104, 110 (D.D.C. 2008). Here, the FAA has satisfied its

segregability obligation. First, the Armstead declaration demonstrates that the agency

has reviewed all of the records responsive to Plaintiff’s FOIA Request and determined

that no portions of the documents were segregable. (Armstead Dec., ¶19.) The FAA

described each document withheld and has established, with reasonable specificity, that

it withheld only exempt documents that could not reasonably be segregated. The FAA

properly concluded that the agency could release no further information without

compromising information exempt under Exemption 5. Accordingly, the FAA has

complied with the FOIA’s segregation requirements.

V. CONCLUSION

For the reasons stated above, The FAA respectfully requests that summary

judgment be entered in its favor. The FAA has conducted an adequate search for the

requested records, has properly asserted appropriate exemptions, provided a sufficiently

detailed Vaughn index justifying the agency’s withholdings and properly concluded that

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no information was segregable. Accordingly, there is no material factual dispute, and

the agency is entitled to summary judgment in this matter.

Dated: April 4, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division /s/ Alarice M. Medrano ALARICE M. MEDRANO Assistant United States Attorney Attorneys for Defendant, Federal Aviation Administration


1 SCOTT DECLARATION

Case 2:15-cv-05811-CBM-SS Document 25-1 Filed 04/04/16 Page 1 of 2 Page ID #:132

2 SCOTT DECLARATION


3 ARMSTEAD DECLARATION


7 EXHIBIT A


8 EXHIBIT A


9 EXHIBIT B


10 EXHIBIT C


11 EXHIBIT D


12 EXHIBIT D


13 VAUGHN INDEX


14 VAUGHN INDEX


15 VAUGHN INDEX


16 VAUGHN INDEX


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EILEEN M. DECKER Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ALARICE M. MEDRANO (State Bar No. 166730) Assistant United States Attorney

Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-0460 Facsimile: (213) 894-7819 E-mail: [email protected]

Attorneys for Defendant, Federal Aviation Administration1



WESTERN DIVISION

JORGE ALEJANDRO ROJAS, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, Defendant.

No. CV 15-5811 CBM (SSx) Hearing Date: May 10, 2016 Time: 10:00 a.m. [Before the Honorable Consuelo B. Marshall]

DEFENDANT’S STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

1 Plaintiff's Complaint names the Federal Aviation Administration as the

Defendant in this action. Pursuant to 5 U.S.C. §552, government agencies are the only proper defendants in a suit under the Freedom of Information Act. Thus, the Department of Transportation is the proper defendant in this case.


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Pursuant to Fed. R. Civ. P. Rule 56 and Local Rule 56-1, Defendant Federal

Aviation Administration (“FAA”) submits this Statement of Uncontroverted Facts and

Conclusions of Law. Defendant’s Motion for Summary Judgment, came on regularly

for hearing on May 10, 2016, before the Honorable Consuelo B. Marshall, United

States District Judge. The Court having considered the parties’ filings, evidence

presented, memorandum of points and authorities, and oral argument at the hearing, the

Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

UNCONTROVERTED FACTS SUPPORTING EVIDENCE

1. Beginning in 2012, the FAA

undertook a comprehensive review

of the Air Traffic Control Specialist

(“ATCS”) selection and hiring

process.

Declaration of Yvette Armstead, Assistant

Chief Counsel of Employment and Labor

Law, Office of Chief Counsel, FAA

(“Armstead Dec.”), ¶5.

2. In or about November 2012, the

FAA retained Applied

Psychological Techniques, Inc.

(“APTMetrics”) to assist in a

thorough review and analysis of the

ATCS hiring process, recommend

improvements, and assist in

implementing those

recommendations.

Armstead Dec., ¶6.

3. The FAA awarded a contract to

APTMetrics to conduct this work.

Declaration of John C. Scott, Chief

Operating Officer of APTMetrics (“Scott

Dec.”), ¶3.


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4. In 2013, APTMetrics developed

and validated a Biographical

Assessment (“BA”) test.

Scott Dec., ¶4; Armstead Dec., ¶7.

5. The BA is a computerized test that

measures the following job-related

characteristics: flexibility; risk

tolerance; self-confidence;

dependability; resilience; stress

tolerance; cooperation; teamwork;

and, rules application.

Scott Dec., ¶5.

6. In early 2014, the FAA issued a

vacancy announcement for entry

level ATCS positions. The BA test

was used in the 2014 hiring process

to screen applicants for the ATCS

positions.

Armstead Dec., ¶7 and fn. 1.

7. In March 2014, an unsuccessful

applicant for an ATCS position filed

a “Class EEO Complaint – 29 CFR

1614.204 Certification Request”

letter with the FAA’s Office of Civil

Rights. The class was represented

by Plaintiff’s current counsel, Mr.

Pearson.

Armstead Dec., ¶8.

8. In April 2014, the same applicant

attempting to represent a group of

2014 unsuccessful applicants filed a

Armstead Dec., ¶9.


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“Formal Complaint” and a petition

to be certified as a class. Mr.

Pearson represented the class.

9. In the summer and fall of 2014, the

FAA revised the BA test ahead of

the 2015 vacancy announcement

and APTMetrics performed

validation work related to the 2015

BA test.

Armstead Dec., ¶10.

10. In late November 2014, the FAA

Office of Chief Counsel had several

conversations with John Scott, the

Chief Operating Officer of

APTMetrics, regarding the firm’s

validation analysis. The FAA asked

Mr. Scott to summarize elements of

his validation work related to the

use of the BA as an instrument in

the ATCS selection process.

Armstead Dec., ¶10; Scott Dec., ¶¶7-8.

11. In December 2014, APTMetrics

provided FAA counsel with an

initial summary of the validation

work. APTMetrics supplemented

this information in January 2015.

Armstead Dec., ¶11; Scott Dec., ¶7.

12. In early 2015, the FAA issued a

separate vacancy announcement for

entry level ATCS positions. Again,

Armstead Dec., ¶7 and fn. 1.


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the FAA used the BA as a selection

tool in the ATCS hiring process.

13. In April 2015, an unsuccessful

applicant for the 2015 ATCS

positions made counselor contact

with the FAA’s Office of Civil

Rights. He was represented by Mr.

Pearson.


14. In August 2015, a group of

unsuccessful applicants filed a

“Formal Complaint” and a petition

to be certified as a class related to

the 2015 ATCS hiring process. Mr.

Pearson represented the class.


15. On or about May 24, 2015, via e-

mail, Plaintiff submitted a FOIA

request to the FAA seeking, in

relevant part: 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.” The FOIA request

was assigned tracking number:

2015-006130.

Armstead Dec., ¶¶3-4, 14; and Exh. A.


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16. On June 18, 2015, the FAA initially

responded to Plaintiff’s FOIA

request and informed Plaintiff that

although documents were located in

regard to the third request for

empirical validation of the

biographical assessment, they were

being withheld pursuant to FOIA

Exemption 5 because the documents

were protected under the attorney-

client and attorney-work product

privileges and were pre-decisional

and deliberative pursuant to 5

U.S.C. §552(b)(5)

Armstead Dec., ¶¶3-4, 14; and Exh. A.

17. On June 25, 2015, Plaintiff filed an

administrative appeal based upon

the Agency’s initial response. The

appeal was assigned FOIA Control

No. 2015-006130A.

Armstead Dec., ¶15; and Exh. B.

18. On October 7, 2015, the FAA

responded to Plaintiff’s

administrative appeal. The Agency

determined that a portion of

Plaintiff’s request related to the

request for empirical validation of

the biographical assessment should

be remanded back to the FAA’s

Office of the Chief Counsel

Armstead Dec., ¶16; and Exh. C.


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(“OCC”) for additional action.

19. After the matter was remanded, in

late October 2015, the OCC

conducted a second search for

documents responsive to Plaintiff’s

FOIA request. (Id. at ¶17.) The

Agency located three responsive

documents that discussed the

validation of the 2015 BA test.

Those documents are identified in

the Vaughn Index attached the

Declaration of Ms. Armstead.

Armstead Dec., ¶¶18-19; and Exh. E.

20. On December 10, 2015, the FAA

provided Plaintiff with a

determination letter regarding his

appeal. The Agency determined

that Plaintiff’s request for

information related to the empirical

validation of the BA test was

protected under Exemption 5 of the

FOIA.

Armstead Dec., ¶20; and Exh. D.

Any Conclusion of Law deemed to be a Finding of Fact is hereby incorporated

into these Findings of Fact.

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Based on the foregoing Undisputed Facts, the Court now makes its:

CONCLUSIONS OF LAW

I. LEGAL STANDARD

A. The Applicable FOIA Standards

FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure

unless information is exempted under clearly delineated statutory language.” John Doe

Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). “Congress recognized, however,

that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159,

166-167 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable

balance between the right of the public to know and the need of the Government to keep

information in confidence to the extent necessary without permitting indiscriminate

secrecy.’” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6

(1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423); see also Center for Nat’l Sec.

Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck

by Congress between the public’s right to know and the government’s legitimate

interest in keeping certain information confidential.”).

FOIA mandates disclosure of government records unless the requested

information falls within one of nine enumerated exceptions. See 5 U.S.C. § 552(b). “A

district court only has jurisdiction to compel an agency to disclose improperly withheld

agency records,” i.e., records that do “not fall within an exemption.” Minier v. CIA, 88

F.3d 796, 803 (9th Cir. 1996); see also 5 U.S.C. § 552(a)(4)(B) (giving the district court

jurisdiction only “to enjoin the agency from withholding agency records and to order

the production of any agency records improperly withheld from the complainant”);

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)

(“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing

that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’”). Although

FOIA’s statutory exemptions are to be narrowly construed, see Department of the

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001), courts must


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also give those exemptions “meaningful reach and application,” John Doe Agency, 493

U.S. at 152. “Requiring an agency to disclose exempt information is not authorized.”

Minier, 88 F.3d at 803.

B. The Applicable Summary Judgment Standards

FOIA cases are typically resolved on motions for summary judgment under

Federal Rule of Civil Procedure 56. See, e.g. Beltranena v. U.S. Dep’t of State, 821

F.Supp.2d 167, 175 (D.D.C. 2011). Summary judgment is appropriate when there is

“no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). The party seeking summary judgment must demonstrate an

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the non-

movant “may not rest upon the mere allegations or denials of his pleading, but . . . must

set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477

U.S. at 248.

In a FOIA action, the government bears the burden of proving that the withheld

information falls within the exemptions it invokes. See 5 U.S.C. §552(a)(4)(B); King v.

U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). To meet its burden, an

agency may rely on “relatively detailed and non-conclusory” declarations, Kamman v.

IRS, 56 F.3d 46, 48 (9th Cir. 1995) (quoting Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.

1987)); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation

marks and citation omitted), and an index of the information withheld, Vaughn, 484

F.2d at 827-28. A court may grant summary judgment to the government entirely on

the basis of information set forth in an agency’s affidavit or declaration if it provides

“the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that

the information withheld logically falls within the claimed exemption, and [is] not

controverted by either contrary evidence in the record nor by evidence of agency bad


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faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation

marks and citation omitted). “Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears logical or plausible.” Wolf v. CIA, 473 F.3d 370,

374-375 (D.C. Cir. 2007) (internal quotation marks and citations omitted).

II. ARGUMENT

The Declarations of Ms. Armstead, an Assistant Chief Counsel for the FAA, and

Mr. Scott, the Chief Operating Officer of APTMetrics, along with the Vaughn Index,

demonstrate that the FAA properly determined that the documents at issue in this case

fall squarely within the FOIA Exemption 5 for attorney work-product and attorney-

client communications.

A. The FAA Conducted an Adequate Search for Responsive Documents

An agency is obligated to conduct a search that is “‘reasonably calculated to

uncover all relevant documents.’” ACLU of Southern Cal. v. Dep’t of Homeland

Security, 2012 WL 5342411, at *1 (C.D. Cal. Oct. 25, 2012) (quoting Lane v. Dep’t of

Interior, 523 F.3d 1128, 1139 (9th Cir. 2008)); see also Weisberg v. Dep’t of Justice,

705 F.2d 1344, 1351 (D.C. Cir. 1983). A reasonable search is one that covers those

locations where responsive records are likely to be located. Oglesby v. U.S. Dep’t of

the Army, 920 F.2d 57, 68 (D.C. Cir. 1990), superseded on other grounds by Electronic

FOIA Amendments, Pub.L. No. 104-231, §8(c), 110 Stat. 3048, 3052 (1996). To

satisfy its obligation, “the agency must show that it made a good faith effort to conduct

a search for the requested records, using methods which can be reasonably expected to

produce the information requested.” Id.; see ACLU of Southern Cal., 2012 WL

5342411 at *1.

The agency bears the burden of demonstrating the adequacy of the search by

providing a declaration that contains “reasonably detailed descriptions of the documents

and allege facts sufficient to establish an exemption.” Lane, 523 F.3d at 1139. Such

affidavits should “‘set[] forth the search terms and type of search performed, and aver[]

that all files likely to contain responsive materials . . . were searched.’” Clay v. Dep’t


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of Justice, 680 F. Supp. 2d 239, 245 (D.D.C. 2010) (quoting Ogelsby, 920 F.2d at 68);

In Def. of Animals v. NIH, 543 F. Supp. 2d 83, 98 (D.D.C. 2008) (“To meet its burden,

the agency may submit affidavits or declarations that explain both in reasonable detail

and in a non-conclusory fashion the scope and method of the agency’s search.”). Here,

the Armstead Declaration establishes that the FAA’s search was reasonably calculated

to uncover records in the FAA’s possession responsive to Plaintiff’s FOIA Request.

B. The FAA Appropriately Withheld Records Exempt from Disclosure

Under FOIA Exemption 5

1. The FAA has Provided a Sufficiently Detailed Vaughn Index to

Identify and Explain its Withholdings

The purpose of a Vaughn index is to ameliorate the imbalance inherent to FOIA

litigation: that the agency knows the contents of its records while the Plaintiff and the

Court do not. Ogelsby, 79 F.3d at 1178; see King v. Dep’t of Justice, 830 F.2d 210,

218 (D.C. Cir. 1987); Campaign for Responsible Transplantation v. FDA, 180 F. Supp.

2d 29, 32 (D.D.C. 2001). A Vaughn index is intended, in part, to afford the requester a

meaningful opportunity to challenge the agency’s claims of exemption. Ogelsby, 79

F.3d at 1178. There is no set formula for a Vaughn index. Rather, “it is well

established that the critical elements of the Vaughn index lie in its function, and not in

its form.” Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C. 1997); see Hinton v. Dep’t of

Justice, 844 F.2d. 126, 129 (D.C. Cir. 1988) (holding that a Vaughn index is sufficient

if “the requester and the trial judge [are] able to derive from the index a clear

explanation of why each document or portion of a document withheld is putatively

exempt from disclosure”). In this Circuit, this means “identify[ing] each withheld

document, describ[ing] its contents to the extent possible, and giv[ing] ‘a particularized

explanation of why each document falls within the claimed exemption.’” Yonemoto v.

Dep’t of Veterans Affairs, 686 F.3d 681, 695 (9th Cir. 2012) (quoting Lion Raisins v.

Dep’t of Agriculture, 354 F.3d 1072, 1082 (9th Cir. 2004)).


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In this case, the FAA has filed a Vaughn index that provides a detailed

description of each record withheld from Plaintiff; the date of the record, if applicable;

the author and intended recipient of the record, if known; the number of pages of the

entire record, including attachments; the number of pages withheld; the claim of

relevant exemptions; and a description of the withheld or redacted document. As

explained in the Vaughn index and below, the information that FAA redacted and

withheld from the records produced to Plaintiff is exempt from disclosure under FOIA

Exemption 5. See 5 U.S.C. §§ 552(b)(5).

2. The FAA Properly Applied FOIA Exemption 5

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party . . . in litigation

with the agency.” 5 U.S.C. § 552(b)(5); see also 21 C.F.R. §20.62. Courts construe

this language to exempt those documents that would not be available to an agency’s

opponent in a civil discovery context and to incorporate all evidentiary privileges that

would be available in that context. Nat’l Labor Relations Bd. v. Sears, Roebuck & Co.,

421 U.S. 132, 148-49 (1975 (“Sears”) (holding that Exemption 5 exempts those

documents that would be privileged as deliberative process, attorney-client

communications, and attorney work-product); see also Dep’t of Interior v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); United States v. Weber Aircraft

Corp., 465 U.S. 792, 799 (1984); Nat’l Resources Defense Council v. Dep’t of Defense,

388 F. Supp. 2d. 1086, 1097 (C.D. Cal. 2005) (holding that “Exemption 5 entitles an

agency to withhold from the public inter-agency or intra-agency records that are

otherwise protected by the attorney-client privilege, the attorney work-product

privilege, or the ‘deliberative process’ privilege) (quoting Maricopa Audubon Soc’y v.

United States Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997)).

The threshold issue under Exemption 5 is whether the records in question qualify

as “inter-agency or intra-agency memorandums.” 5 U.S.C. § 552(b)(5). The

information withheld pursuant to Exemption 5 here — records relating to FAA’s hiring


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process for Air Traffic Control Specialist, among other issues — clearly satisfy this

threshold.

Moreover, although APTMetrics is an outside agency, federal courts have given

the “inter-agency” portion of Exemption 5 an expansive reading, recognizing that

federal agencies frequently have a need for the opinions and recommendations of

temporary consultants and that such advice can play an integral function in an agency’s

decision-making. See Soucie v. David, 448 F.2d 1067, 1078 N. 44 (D.C. Cir. 1971);

CNA Fin.Corp. v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987) (“[F]ederal agencies

occasionally will encounter problems outside their [expertise], and it clearly is

preferable that they enlist the help of outside experts skilled at unraveling their knotty

complexities.”); Ryan v. DOJ, 617 F.2d 781, 790 (D.C. Cir. 1980) (“Congress

apparently did not intend 'inter-agency or intra-agency' to be rigidly exclusive terms.”)

Where agencies seek outside advice in such matters, the consultants effectively function

as agency employees. See e.g., Badhwar v. U.S. Dep't of the Air Force, 829 F.2d 182,

184-85 (D.C. Cir. 1987) (upholding application of Exemption 5 to material supplied by

outside contractors); Citizens for Responsibility & Ethics in Wash. v. DHS, 514 F.

Supp. 2d 36, 44 (D.D.C. 2007) (protecting documents prepared by contractors for

FEMA); Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1191 (N.D. Cal. 2006) (upholding

agency's invocation of Exemption 5 to protect documents prepared by private contractor

hired to perform audit for agency).

Here, as set forth in the Armstead and Scott Declarations, the FAA retained

APTMetrics to conduct a thorough review of the ATCS hiring process, to develop a

Biographical Assessment test to be used in that process and to validate the test.

Although the FAA initially retained APTMetrics in 2012, their work has spanned

several different, yet related, aspects of the ATCS selection process. In addition, their

scope of work has specifically included assistance to the FAA in anticipation of

litigation against the agency concerning the ATCS hiring process and specifically, the


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use of the BA in this case. Thus, FOIA Exemption 5 is properly applied to the

documents provided by APTMetrics to the FAA in this case.

a. The Attorney Work-Product Privilege

The attorney work-product privilege incorporated into Exemption 5 protects

documents and other memoranda prepared by an attorney, or at the direction of an

attorney, in contemplation of litigation. See Fed.R.Civ.P. 26(b)(3) (codifying privilege

in Federal Rules of Civil Procedure). Work-product protection is appropriate when the

non-attorney acts as the agent of the attorney as APTMetrics did in this case. See

Shacket v. United States, 339 F. Supp. 2d 1092, 1096 (S.D. Cal. 2004) (holding it

“irrelevant” that report withheld pursuant to work-product privilege was prepared by

IRS Special Agent, not attorney; observing that privilege extends to an attorney “or

other representative of a party”); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 76

(D.D.C. 2003) (rejecting claim that privilege is limited to materials prepared by

attorney, and citing Fed.R.Civ.P. 26(b)(3) for proposition that privilege extends to

documents created at direction of attorney).

Moreover, this privilege is not limited to civil proceedings, but rather extends to

administrative proceedings as well. See, e.g., Schoenman v. FBI, 573 F. Supp. 2d 119,

143 (D.D.C. 2008) (upholding use of privilege for documents “created by an attorney in

the context of an ongoing administrative proceeding that eventually resulted in

litigation”); Nevada v. Doe, 517 F. Supp. 2d 1245, 1260 (D. Nev. 2007) (noting that

privilege applies to administrative proceedings, as long as they are

“adversarial”).

In a situation where a document may have been created for more than one

purpose, the work-product privilege has been found to apply if the agency can show

that the document was created at least in part because of the prospect of litigation. See

Hertzberg, 273 F. Supp. 2d at 80 (D.D.C. 2003) (rejecting “primary purpose” test);

Brotherhood of Locomotive Eng'rs v. Surface Transp Bd., No. 96-1153, 1997 WL

446261, at *6 (D.D.C. July, 31, 2007) (holding that privilege applies where document


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was created “in part” for litigation); Charles A. Wright, Arthur Miller, and Richard L.

Marcus, 8 Federal Practice and Procedure 343 (1994) (discussing proper interpretation

of work-product privilege).

Here, the Declarations of Ms. Armstead and Mr. Scott show that following the

filing of an EEO Complaint regarding the ATCS hiring practices, the FAA requested

that APTMetrics assist in a validation analysis of the BA test. Those documents were

prepared in anticipation of litigation in both administrative proceedings and before the

district court. Thus, the FAA properly asserted the attorney work-product privilege

under FOIA Exemption 5 in this case in order to protect the documents at issue.

b. The Attorney–Client Privilege

The FAA asserted Exemption 5 to protect information covered by the attorney-

client privilege. The attorney-client privilege “extends to situations in which the

agency is consulting its attorney ‘as would any private party seeking advice to protect

personal interests.’” Ctr. for Biological Diversity, 625 F. Supp. at 892 (quoting Coastal

States Gas Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1984). “An

attorney-client privilege is established ‘(1) [w]hen legal advice of any kind is sought (2)

from a professional legal adviser in his or her capacity as such, (3) the communications

relating to that purpose, (4) made in confidence (5) by the client, (6) are, at the client's

instance, permanently protected (7) from disclosure by the client or by the legal adviser

(8) unless the protection be waived.’” Id. (quoting United States v. Martin, 278 F.3d

988, 999 (9th Cir. 2002); see also United States v. Graf, 610 F.3d 1148, 1156 (9th Cir.

2010). The privilege encompasses confidential facts communicated by the client to the

attorney, as well as opinions rendered by the attorney based on those confidential facts.

Id. (quoting Mead Data Central Inc. v. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir.

1977). This privilege covers the specifics of a confidential attorney-client

communication, even when third parties know the underlying subject matter. Upjohn

Co. v. United States, 449 U.S. 383, 395-96 (1981). Unlike the work-product doctrine,

the attorney-client privilege of Exemption 5 is not limited to the context of litigation.


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Coastal States Gas Corp., 617 at 862 (“The privilege is not limited to communications

made in the context of litigation or even a specific dispute, but extends to all situations

in which an attorney’s counsel is sought on a legal matter.”).

In this case, the FAA withheld certain information on the basis of the attorney-

client privilege incorporated into Exemption 5. The withheld information consists of

records between counsel and client, including legal advice of counsel and/or records

that were not disclosed outside of the attorney-client relationship. The agency closely

reviewed these documents and the agency described each withheld document with

sufficient detail in the Vaughn index. Because these communications contained legal

advice, the agency properly withheld the records as attorney-client privileged. Ctr. for

Biological Diversity, 625 F. Supp. at 892 (quoting Coastal States Gas Corp., 617 F.2d at

863).

The disclosure of this attorney-client privileged information would strip away the

very underpinnings of the attorney-client privilege, as clients would be less likely to

raise potential issues candidly with counsel if they anticipated public disclosure of such

matters, and the system as a whole would suffer. Upjohn Co., 449 U.S. at 392-97.

Accordingly, the agency properly withheld these attorney-client privileged

communications from public disclosure under Exemption 5.

3. The Records at Issue Were Not “Reasonably Segregable”

FOIA requires that if a record contains information that is exempt from

disclosure, an agency must disclose any “reasonably segregable” information after

deletion of the exempt information, unless the non-exempt portions are “inextricably

intertwined with exempt portions.” 5 U.S.C. § 552(b); see Billington v. Dep’t of

Justice, 233 F.3d 581, 586 (D.C. Cir. 2000); Krikorian v. Dep’t of State, 984 F.2d 461,

466 (D.C. Cir. 1993); Mead, 566 F.2d at 260. To establish that all reasonably

segregable, non-exempt information has been disclosed, an agency need only show

“with reasonable specificity” that the information it has withheld cannot be further


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segregated. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578-79 (D.C. Cir.

1996); see Canning v. Dep’t of Justice, 567 F. Supp. 2d 104, 110 (D.D.C. 2008).

Here, the FAA has satisfied its segregability obligation. First, the Armstead declaration

demonstrates that the agency has reviewed all of the records responsive to Plaintiff’s

FOIA Request and determined that no portions of the documents were segregable. The

FAA described each document withheld and has established, with reasonable

specificity, that it withheld only exempt documents that could not reasonably be

segregated. The FAA properly concluded that the agency could release no further

information without compromising information exempt under Exemption 5.

Accordingly, the FAA has complied with the FOIA’s segregation requirements.

Dated: April 4, 2016

___________________________________ CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

Presented by:

EILEEN M. DECKER Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division /s/ Alarice M. Medrano ALARICE M. MEDRANO Assistant United States Attorney Attorneys for Defendant, Federal Aviation Administration


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EILEEN M. DECKER Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ALARICE M. MEDRANO (State Bar No. 166730) Assistant United States Attorney

Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-0460 Facsimile: (213) 894-7819 E-mail: [email protected]

Attorneys for Defendant, Federal Aviation Administration1



WESTERN DIVISION

JORGE ALEJANDRO ROJAS, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, Defendant.

No. CV 15-5811 CBM (SSx) Hearing Date: May 10, 2016 Time: 10:00 a.m. [Before the Honorable Consuelo B. Marshall]

[PROPOSED] JUDGMENT FOR DEFENDANT

1 Plaintiff's Complaint names the Federal Aviation Administration as the

Defendant in this action. Pursuant to 5 U.S.C. §552, government agencies are the only proper defendants in a suit under the Freedom of Information Act. Thus, the Department of Transportation is the proper defendant in this case.


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Defendant’s Motion for Summary Judgment came on regularly for hearing on

May 10, 2016, before the Honorable Consuelo B. Marshall, United States District

Judge. The Court having considered the pleadings, evidence presented, memorandum

of points and authorities and the oral argument at the time of the hearing, and in

accordance with the Findings of Fact and Conclusions of Law filed herein:

HEREBY ORDERS, ADJUDGES AND DECREES that judgment is entered in

favor of Defendant on all causes of action.

Dated: _____________, 2016

___________________________________ CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

Presented by:

EILEEN M. DECKER Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division /s/ Alarice M. Medrano ALARICE M. MEDRANO Assistant United States Attorney Attorneys for Defendant, Federal Aviation Administration
