Jorge Rojas v. Faa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ALEJANDRO ROJAS, No. 17-55036

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-05811-

CBM-SS

FEDERAL AVIATION

ADMINISTRATION,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted En Banc September 22, 2020

San Francisco, California

March 2, 2021

Before: Sidney R. Thomas, Chief Judge, and Susan P.

Graber, Kim McLane Wardlaw, Johnnie B. Rawlinson,

Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S.

Ikuta, Paul J. Watford, Andrew D. Hurwitz, Daniel P.

Collins, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Watford;

Concurrence by Judge Collins;

Partial Concurrence and Partial Dissent by Judge Wardlaw;

2 ROJAS V. FAA

Partial Concurrence and Partial Dissent by

Chief Judge Thomas;

Partial Dissent by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Bumatay

SUMMARY *

Freedom of Information Act

The en banc court affirmed in part and vacated in part the

district court’s summary judgment in favor of the Federal

Aviation Administration (“FAA”) in a plaintiff’s Freedom

of Information Act (“FOIA”) action seeking FAA agency

records.

FOIA’s Exemption 5 provides that FOIA’s disclosure

requirements do not apply to “inter-agency or intra-agency

memorandums or letters that would not be available by law

to a party . . . in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). The FAA’s Office of Chief Counsel informed

plaintiff that it was withholding three documents from his

FOIA requests under Exemption 5. The validation

documents that the FAA sought to withhold were prepared

by an outside consultant rather than by an FAA employee.

The en banc court joined six sister circuits that have

recognized some version of the consultant corollary to

Exemption 5, and held that the term “intra-agency” in

§ 552(b)(5) included, at least in some circumstances,

documents prepared by outside consultants hired by the

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ROJAS V. FAA 3

agency to assist in carrying out the agency’s functions. The

court held that the relevant inquiry asks whether the

consultant acted in a capacity functionally equivalent to that

of an agency in creating the document or documents the

agency sought to withhold.

Applying these principles, the en banc court concluded

that the consultant, APTMetrics, created the three

documents at issue while performing work in the same

capacity as an employee of the FAA. APTMetrics

represented neither its own interests nor those of any other

client in carrying out its work, and it did not share the

documents with anyone outside the FAA’s Office of Chief

Counsel. With respect to the preparation of the documents,

APTMetrics was operating enough like the FAA’s own

employees to justify calling its own communications with

the FAA “intra-agency.”

Because the documents at issue qualified as intra-agency

memorandums, the en banc court next considered whether

they satisfied Exemption 5’s second requirement that the

documents “would not be available by law to a party . . . in

litigation with the agency.” 5 U.S.C. § 552(b)(5). The court,

agreeing with the district court, held that two of the three

documents listed in the Vaughn index were protected by the

attorney work-product privilege and thus could not be

subject to discovery in civil litigation with the FAA. A

remand, however, was necessary to determine whether the

third document was also protected by privilege; and the court

vacated the district court’s summary judgment for the FAA

as to the third document.

The en banc court addressed plaintiff’s arguments

concerning the adequacy of the FAA’s search for responsive

documents. First, the court held that Supreme Court

precedent foreclosed plaintiff’s contention that the FAA

4 ROJAS V. FAA

should have been required to search APTMetrics’ records for

documents responsive to his FOIA request. Second, the court

held that the declarations submitted by the FAA failed to

show that it conducted a search reasonably conducted to

uncover all relevant documents.

The en banc court remanded for further proceedings.

Judge Collins joined in the majority opinion that adopted

the reading of Exemption 5 endorsed by Justice Scalia in his

dissenting opinion in U.S. Department of Justice v. Julian,

486 U.S. 1 (1988), and wrote separately to respond to the

dissents’ erroneous contentions that Justice Scalia’s reading

of Exemption 5 was “atextual.”

Judge Wardlaw, joined by Chief Judge Thomas and

Judge Hurwitz, concurred in part and dissented in part.

Judge Wardlaw would hold that Exemption 5’s text is crystal

clear: documents or communications exchanged with

outside consultants do not fall within that exemption. She

agreed with the majority that the FAA’s search for records

was inadequate, and joined part III of the majority opinion.

Chief Judge Thomas concurred in part and dissented in

part. He joined Judge Wardlaw’s dissent in full, and also

agreed with the majority opinion’s holding that the FAA did

not meet its burden to show that it conducted an adequate

search for documents responsive to plaintiff’s FOIA request.

He wrote separately to observe that, even if the consultant

corollary formed part of Exemption 5, it would not protect

the specific information sought in this case because the

information was required to be maintained and made

publicly available by the agency.

Judge Ikuta, joined by Judges Graber and Callahan, and

joined by Judge Bumatay except as to footnote 1, dissented

ROJAS V. FAA 5

in part. Judge Ikuta disagreed with the majority’s conclusion

that the declaration submitted by the FAA failed to show that

the agency conducted a search reasonably calculated to

uncover all relevant documents in response to the FOIA

request. In footnote 1, Judge Ikuta stated that she agreed

with the majority’s interpretation of “intra-agency

memorandums or letters” to include documents prepared by

outside consultants hired by the agency to assist its

functions, and she would affirm the summary judgment for

the FAA as to the first two withheld documents, and reverse

as to the third document for the reasons stated in the majority

opinion.

Judge Bumatay concurred in part and dissented in part.

He would hold that FOIA Exemption 5 does not cover

consultant work product, and by its plain text, it does not

protect APTMetric’s documents from disclosure. He agreed

with the majority that the FAA was not required to search

APTMetric’s records for responsive documents, but agreed

with Judge Ikuta’s dissent that the majority was incorrect in

finding that FAA’s search was inadequate.

COUNSEL

Naomi J. Scotten (argued), Orrick Herrington & Sutcliffe

LLP, New York, New York; Michael W. Pearson, Curry

Pearson & Wooten PLC, Phoenix, Arizona; Robert M. Loeb

and Thomas M. Bondy, Orrick Herrington & Sutcliffe LLP,

Washington, D.C.; for Plaintiff-Appellant.

Jeffrey E. Sandberg (argued), and Mark B. Stern, Appellate

Staff; Hashim M. Mooppan, Deputy Assistant Attorney

General, Washington, D.C.; Alarice M. Medrano, Assistant

United States Attorney; Dorothy A. Schouten, Chief, Civil

6 ROJAS V. FAA

Division; United States Attorney’s Office, Los Angeles,

California; for Defendant-Appellee.

Katie Townsend, Caitlin Vogus, Adam A. Marshall, Gunita

Singh, and Daniel J. Leon, Reporters Committee for

Freedom of the Press, Washington, D.C., for Amici Curiae

Reporters Committee for Freedom of the Press and 24 Media

Organizations.

Gregg P. Leslie, Samuel Turner, and John Dragovits, First

Amendment Clinic, Arizona State University, Sandra Day

O’Connor College of Law, Phoenix, Arizona, for Amicus

Curiae Project on Government Oversight.

ROJAS V. FAA 7

OPINION

WATFORD, Circuit Judge:

To ensure greater transparency in the operation of

government agencies, the Freedom of Information Act

(FOIA) mandates disclosure of nearly all agency records

upon request, unless the records fall within one of nine

exemptions specified in the Act. See 5 U.S.C. § 552(b)(1)–

(9); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136

(1975). This case involves Exemption 5, which provides

that FOIA’s disclosure requirements do not apply to “inter-

agency or intra-agency memorandums or letters that would

not be available by law to a party . . . in litigation with the

agency.” 5 U.S.C. § 552(b)(5). The main question before

us is what the term “intra-agency” means in this context.

Does a document qualify as “intra-agency” only if the author

and recipient are employees of the same agency? Or does

the term also include, at least in some circumstances,

documents prepared by outside consultants hired by the

agency to assist in carrying out the agency’s functions? We

join six of our sister circuits in adopting the latter reading of

“intra-agency,” dubbed by some the “consultant corollary”

to Exemption 5.

I

The plaintiff in this case is Jorge Alejandro Rojas. In

March 2015, Rojas applied to the Federal Aviation

Administration (FAA) for an entry-level position as an air

traffic controller. As part of the application process, he took

a computerized test designed to measure certain attributes

deemed relevant to success in the position, such as self-

confidence, stress tolerance, and teamwork. The parties

refer to this test as the “biographical assessment.” The FAA

rejected Rojas’s application in a notice that stated the

8 ROJAS V. FAA

following: “Based upon your responses to the Biographical

Assessment, we have determined that you are NOT eligible

for this position as a part of the current vacancy

announcement.” The notice informed Rojas that the

biographical assessment measures “job applicant

characteristics that have been shown empirically to predict

success as an air traffic controller,” and stated that the test

“was independently validated by outside experts.”

Rojas understandably wanted to learn more about the

FAA’s use of the biographical assessment as a selection

tool—in particular, whether the test had been empirically

validated (that is, shown to have the power to predict

successful job performance) as the FAA claimed. At the

time, little was known about the test, as it had been deployed

for the first time during the previous year’s hiring cycle, in

February 2014, at the recommendation of an outside

consulting firm called APTMetrics. The FAA had hired the

firm in 2012 to review the agency’s hiring process, to

propose recommendations for improvement, and to assist the

agency in implementing those improvements. APTMetrics

developed the biographical assessment as part of that work

and, after its debut during the 2014 hiring cycle, revised the

test for use in the upcoming 2015 hiring cycle. In early fall

of 2014, APTMetrics performed validation work on the

revised 2015 version of the test, work that presumably

formed the basis for the FAA’s claim that the test had been

“independently validated by outside experts.”

Under FOIA, Rojas asked the FAA to produce

documents containing “information regarding the empirical

validation of the biographical assessment” mentioned in his

rejection notice, including “any report created by, given to,

or regarding APTMetrics’ evaluation and creation and

scoring of the assessment.”

ROJAS V. FAA 9

The FAA assigned Rojas’s request to four different

offices within the agency: Air Traffic Organization, FOIA

Program Management Branch, Office of Human Resources,

and the Employment and Labor Law Division of the Office

of the Chief Counsel. The Office of Human Resources

informed Rojas that it had found responsive documents

relating to empirical validation of the biographical

assessment but was withholding those documents under

Exemption 5. The Office of the Chief Counsel similarly

informed Rojas that it had located responsive documents but

was withholding them under Exemption 5 as well.

Following Rojas’s administrative appeal of that decision, the

Office of the Chief Counsel realized that its search had

mistakenly focused on the 2014 biographical assessment,

rather than on the 2015 version of the test that was the

subject of Rojas’s FOIA request. The office conducted a

second search, which produced the three documents at issue

in this appeal. The FAA informed Rojas that it was

withholding all three documents under Exemption 5.

Rojas sued the FAA under FOIA, which authorizes

district courts “to enjoin [an] agency from withholding

agency records and to order the production of any agency

records improperly withheld from the complainant.”

5 U.S.C. § 552(a)(4)(B). For reasons that are unclear from

the record, Rojas’s suit does not challenge the Office of

Human Resources’ withholding of documents under

Exemption 5. He challenges only the Office of the Chief

Counsel’s decision to withhold documents under that

exemption.

The FAA bears the burden of establishing that the

documents it seeks to withhold are covered by Exemption 5.

See 5 U.S.C. § 552(a)(4)(B); Lahr v. National

Transportation Safety Board, 569 F.3d 964, 973 (9th Cir.

10 ROJAS V. FAA

2009). The FAA sought to meet that burden by submitting

a “Vaughn index,” a document that identifies the records

being withheld, the exemption invoked to justify

withholding, and the reason why each document is subject

to the claimed exemption. See Hamdan v. Department of

Justice, 797 F.3d 759, 769 n.4 (9th Cir. 2015) (citing Vaughn

v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). The FAA’s

Vaughn index described the three documents at issue here.

For each, the FAA identified APTMetrics as the sender and

the FAA’s Office of the Chief Counsel as the recipient;

stated that the documents’ subject matter was development

and validation of the 2015 biographical assessment; invoked

Exemption 5 as the ground for withholding; and explained

that the documents had been prepared by APTMetrics at the

request of lawyers in the Office of the Chief Counsel in

anticipation of litigation.

The FAA submitted two declarations providing factual

support for its claim that the documents had been prepared

in anticipation of litigation and were therefore protected by

the attorney work-product privilege. A declaration from a

lawyer in the FAA’s Office of the Chief Counsel explained

that in April 2014, after the agency’s use of the biographical

assessment during the 2014 hiring cycle, an unsuccessful

applicant filed a putative class action against the agency

alleging discrimination. In November 2014, the Office of

the Chief Counsel asked the Chief Operating Officer of

APTMetrics, John Scott, “to summarize elements of his

validation work” related to the revised version of the

biographical assessment that the agency planned to use

during the upcoming 2015 hiring cycle. Scott provided

summaries of his validation work in December 2014 and

January 2015. According to the declaration, those

summaries “were prepared solely at the request and direction

of the Office of the Chief Counsel and were not shared with

ROJAS V. FAA 11

other elements of the [FAA] outside of the Office of the

Chief Counsel.” Mr. Scott submitted a declaration of his

own confirming that APTMetrics had prepared “summaries

and explanations” of its validation work at the request of

lawyers in the Office of the Chief Counsel.

On the basis of the Vaughn index and supporting

declarations, the FAA moved for summary judgment. After

reviewing the three documents in camera, as FOIA permits,

see 5 U.S.C. § 552(a)(4)(B), the district court granted

summary judgment for the FAA. The court held that the

documents were properly subject to withholding under

Exemption 5 and rejected Rojas’s challenges to the adequacy

of the agency’s search for responsive documents.

A three-judge panel of our court reversed. Rojas v. FAA,

927 F.3d 1046 (9th Cir. 2019). The panel divided on the

question whether the documents at issue are covered by

Exemption 5. Over Judge Christen’s dissent, a majority of

the panel held that they are not. The majority declined to

adopt the consultant corollary to Exemption 5, which it

regarded as inconsistent with the statute’s plain text and

FOIA’s general policy of fostering broad disclosure of

agency records. Id. at 1055–58. Because the validation

documents the FAA sought to withhold were prepared by an

outside consultant rather than by an FAA employee, the

majority concluded that the documents do not qualify as

“intra-agency memorandums.” Id. at 1058. The panel also

held, unanimously, that while the FAA was not obligated to

search APTMetrics’ records in response to Rojas’s FOIA

request, the agency failed to establish that the search it

conducted of its own records was reasonably calculated to

locate all responsive documents. Id. at 1053–54, 1059

(majority opinion); id. at 1060 (Christen, J., concurring in

part and dissenting in part). Thus, the panel reversed the

12 ROJAS V. FAA

district court’s entry of summary judgment in the FAA’s

favor. Id. at 1059–60.

A majority of the non-recused active judges voted to

rehear the case en banc, principally to decide whether our

circuit should adopt or reject the consultant corollary to

Exemption 5.

II 1

Exemption 5 permits an agency to withhold “inter-

agency or intra-agency memorandums or letters that would

not be available by law to a party . . . in litigation with the

agency.” 5 U.S.C. § 552(b)(5). Successful invocation of the

exemption requires an agency to show that a document (1) is

“inter-agency” or “intra-agency” in character, and

(2) consists of material that would be protected as privileged

in the civil discovery context. Sears, 421 U.S. at 149. We

address each of these requirements in turn.

A

APTMetrics is not a federal agency in its own right, see

5 U.S.C. §§ 551(1), 552(f)(1), so the three documents it

prepared and sent to the FAA cannot be deemed “inter-

agency” memorandums. At first blush, documents prepared

by APTMetrics would not appear to qualify as “intra-

agency” memorandums either. “Intra” means “within,” and

read in isolation, “the most natural meaning of the phrase

‘intra-agency memorandum’ is a memorandum that is

addressed both to and from employees of a single agency.”

Department of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988)

1

Judges Graber, Rawlinson, Callahan, M. Smith, Ikuta, and Collins

join in this part of the majority opinion.

ROJAS V. FAA 13

(Scalia, J., dissenting). But as is always true when

interpreting statutes, statutory context and purpose matter,

and here we think context and purpose suggest that Congress

had in mind a somewhat broader understanding of “intra-

agency.”

Read in context, the term “intra-agency” in Exemption 5

does not definitively resolve the interpretive question before

us. Even accepting that “intra-agency” refers in this context

to a document generated and kept in-house, that still does not

tell us who counts as being in-house for purposes of the

exemption’s reach. The term could be read as requiring that

both the author and recipient of the document be employees

on the agency’s payroll. But it could just as plausibly be read

to include certain outside consultants whom the agency has

hired to work in a capacity functionally equivalent to that of

an agency employee.

Deciding which of these two interpretations of “intra-

agency” Congress had in mind should be informed, in our

view, by consideration of the purposes served by

Exemption 5. The exemption protects an agency’s internal

communications (as well as communications with other

agencies) if those communications would be protected by

one of the civil discovery privileges, such as the attorney-

client privilege, the attorney work-product privilege, or the

deliberative process privilege. See Sears, 421 U.S. at 149.

Congress concluded that shielding privileged

communications from disclosure was desirable because “the

‘frank discussion of legal or policy matters’ in writing might

be inhibited if the discussion were made public,” with the

consequence that the quality of an agency’s decisions and

policies “would be the poorer as a result.” Id. at 150 (quoting

S. Rep. No. 89-813, at 9 (1965)). In the same vein, the Court

observed in Sears that “those who expect public

14 ROJAS V. FAA

dissemination of their remarks may well temper candor with

a concern for appearances . . . to the detriment of the

decisionmaking process.” Id. at 150–51 (quoting United

States v. Nixon, 418 U.S. 683, 705 (1974)) (emphasis

omitted). In addition, without the protection afforded by

Exemption 5, an agency’s litigation opponents could obtain

under FOIA the same privileged communications they were

barred from obtaining under civil discovery rules. Asked

whether the statute created such an “anomaly,” the Court

said no, stating: “We do not think that Congress could have

intended that the weighty policies underlying discovery

privileges could be so easily circumvented.” United States

v. Weber Aircraft Corp., 465 U.S. 792, 801–02 (1984).

A Congress whose aim was to further the purposes just

discussed would not have limited Exemption 5’s coverage to

communications authored by agency employees. Outside

consultants would presumably be just as hesitant as agency

employees to engage in frank discussion of legal and policy

matters if they know that their advice and analysis may be

made public, with the same detrimental effect on the quality

of the agency’s decision-making. And an agency’s litigation

opponents could use FOIA to circumvent civil discovery

privileges just as effectively whether the privileged

communications to be disclosed were between the agency

and its outside consultants or between agency employees.

Reading Exemption 5 to exclude communications with

outside consultants altogether, as Rojas urges us to hold,

would require us to assume that Congress saddled agencies

with a strong disincentive to employ the services of outside

experts, even when doing so would be in the agency’s best

interests. We see no evidence to support that assumption in

FOIA’s text or its legislative history.

ROJAS V. FAA 15

The implausibility of Rojas’s interpretation of the phrase

“intra-agency memorandums”—as mandating authorship by

agency employees—is illustrated perhaps most starkly in the

context of an agency’s hiring of outside counsel to represent

it in litigation. Under ordinary privilege rules, the agency’s

litigation opponent could not, of course, demand disclosure

of written communications between the agency and its

outside attorney or production of the attorney’s work-

product. Yet under Rojas’s reading of Exemption 5, all of

those otherwise privileged materials would be subject to

public disclosure under FOIA—at the request of the

agency’s litigation opponent or anyone else. It seems

doubtful that Congress intended the term “intra-agency” in

Exemption 5 to exclude outside attorneys, because doing so

would, for all practical purposes, preclude agencies from

relying on the services of outside counsel in most instances.

Indeed, even Rojas appears to acknowledge that outside

attorneys must be deemed “within” an agency for purposes

of Exemption 5, but he offers no principled basis on which

an agency’s outside attorneys could be distinguished from

other outside consultants hired to assist in carrying out the

agency’s functions.

Given these considerations, we do not agree that Rojas’s

reading of the term “intra-agency” is the only textually

permissible interpretation of Exemption 5’s scope. While

we are mindful of our obligation to construe FOIA’s

exemptions narrowly, we must at the same time give them

“a fair reading,” just as we would any other statutory

provision. Food Marketing Institute v. Argus Leader Media,

139 S. Ct. 2356, 2366 (2019). In our view, a fair reading of

the term “intra-agency” is the one acknowledged by the

Supreme Court in Department of Interior v. Klamath Water

Users Protective Association, 532 U.S. 1 (2001). There,

without accepting or rejecting the consultant corollary, the

16 ROJAS V. FAA

Court noted the then-uniform view of lower courts that, in

certain circumstances, “consultants may be enough like the

agency’s own personnel to justify calling their

communications ‘intra-agency.’” Id. at 12. As Justice Scalia

stated in Julian, that reading of Exemption 5 is not only

“textually possible” but also “much more in accord with the

purpose of the provision.” Julian, 486 U.S. at 18 n.1 (Scalia,

J., dissenting). We therefore join the six other circuits that

have recognized some version of the consultant corollary to

Exemption 5. 2

As for identifying those consultants who “may be

enough like the agency’s own personnel to justify calling

their communications ‘intra-agency,’” the Supreme Court’s

decision in Klamath provides helpful guidance. Although

the Court did not endorse the consultant corollary, it distilled

general principles gleaned from lower court decisions that

we think define the outer boundaries of Exemption 5’s reach.

To be deemed “within” an agency for purposes of

Exemption 5, a consultant must be hired by the agency to

perform work in a capacity similar to that of an employee of

the agency, such that “the consultant functions just as an

employee would be expected to do.” Klamath, 532 U.S.

2

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

Government Land Bank v. General Services Administration, 671 F.2d

663, 665 (1st Cir. 1982); Lead Industries Association, Inc. v. OSHA,

610 F.2d 70, 83 (2d Cir. 1979); Hanson v. U.S. Agency for International

Development, 372 F.3d 286, 292–93 (4th Cir. 2004); Wu v. National

Endowment for Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972);

Stewart v. Department of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009);

cf. Brockway v. Department of Air Force, 518 F.2d 1184, 1194 (8th Cir.

1975) (holding that Exemption 5 includes some witness statements

provided to the Air Force as part of an investigation). The only circuit

arguably to question the validity of the consultant corollary thus far is

the Sixth. See Lucaj v. FBI, 852 F.3d 541, 548–49 (6th Cir. 2017).

ROJAS V. FAA 17

at 10–11. That means the consultant must “not represent an

interest of its own, or the interest of any other client, when it

advises the agency that hires it.” Id. at 11. Its obligations

must be solely “to truth and its sense of what good judgment

calls for.” Id.

Because the scope of Exemption 5 turns on the character

of the document at issue—it is the memorandum or letter that

must be “intra-agency”—these principles should be applied

on a document-by-document basis. The relevant inquiry

asks not whether the “consultant functions just as an

employee would be expected to do” in a general sense, but

rather whether the consultant acted in a capacity functionally

equivalent to that of an agency employee in creating the

document or documents the agency seeks to withhold.

Applying these general principles here, we conclude that

APTMetrics created the three documents at issue while

performing work in the same capacity as an employee of the

FAA. The FAA’s Office of the Chief Counsel asked

APTMetrics to prepare summaries of its validation work to

assist the agency’s lawyers in defending the validity of the

2015 biographical assessment. In creating each of the three

documents, APTMetrics functioned no differently from

agency employees who, although possessing less expertise,

could have been tasked by the FAA’s lawyers with preparing

the same summaries. See Rojas, 927 F.3d at 1063 (Christen,

J., concurring in part and dissenting in part). APTMetrics

represented neither its own interests nor those of any other

client in carrying out its work, and it did not share the

documents with anyone outside the FAA’s Office of the

Chief Counsel, just as agency employees would have been

expected to keep sensitive documents of this sort in-house.

With respect to preparation of the summaries, then,

APTMetrics was operating enough like the FAA’s own

18 ROJAS V. FAA

employees to justify calling its communications with the

FAA “intra-agency.” See Klamath, 532 U.S. at 12. 3

B

Because we conclude that the documents at issue qualify

as intra-agency memorandums, we must next consider

whether they satisfy Exemption 5’s second requirement: that

the documents “would not be available by law to a party . . .

in litigation with the agency.” 5 U.S.C. § 552(b)(5). This

phrase has been construed to incorporate civil discovery

privileges including, as relevant here, the attorney work-

product privilege. See Sears, 421 U.S. at 148–49. After

conducting our own in camera review of the documents at

issue, we agree with the district court that two of the three

documents listed in the Vaughn index are protected by the

attorney work-product privilege and thus would not be

subject to discovery in civil litigation with the FAA.

However, a remand is necessary to determine whether the

third document is also protected by the privilege.

A document is privileged as attorney work-product when

it was prepared (1) “in anticipation of litigation or for trial,”

and (2) “by or for another party or by or for that other party’s

3

A different result might follow if the documents at issue had been

the validation studies themselves. According to the FAA, APTMetrics

performed the validation work in its capacity as an “outside expert” hired

to provide independent validation of the 2015 biographical assessment.

As APTMetrics’ outsider status was essential to this work, APTMetrics

could not have acted in a capacity equivalent to that of the FAA’s own

employees when it validated the test. Put differently, it is far from clear

that an agency may tout the independent validation provided by “outside

experts” and at the same time claim that those experts are “within” the

agency for purposes of Exemption 5.

ROJAS V. FAA 19

representative.” In re Grand Jury Subpoena, 357 F.3d 900,

907 (9th Cir. 2004).

As to the first requirement, the FAA’s declarations

adequately explained why two of the three documents were

prepared in anticipation of litigation. In April 2014, an

unsuccessful applicant for a position as an air traffic

controller filed a complaint against the FAA on behalf of a

class of other unsuccessful applicants. In November 2014,

lawyers in the FAA’s Office of the Chief Counsel asked

APTMetrics to prepare “summaries and explanations” of the

work it had done to validate the revised 2015 version of the

biographical assessment. According to the declarations

submitted by the FAA, APTMetrics sent its initial response

to the Office of the Chief Counsel in December 2014 and

followed up with a supplemental response in January 2015.

As Rojas notes, the April 2014 complaint challenged the

FAA’s use of the 2014 version of the biographical

assessment, not the 2015 version of the test that is the subject

of the documents at issue. But the FAA planned to use a

revised version of the 2014 test to perform a similar

screening function during the 2015 hiring cycle, so it was

reasonable for the agency to anticipate litigation concerning

use of the revised 2015 biographical assessment as well. The

documents that APTMetrics sent to the Office of the Chief

Counsel in December 2014 and January 2015 were prepared

in anticipation of that litigation.

The FAA’s declarations do not address the one

remaining document, which is described in the Vaughn

index as a document prepared by APTMetrics dated

September 2, 2015. The declaration from the FAA’s lawyer

states that the Office of the Chief Counsel received

responses to its request for summaries of APTMetrics’

validation work in December 2014 and January 2015. It

20 ROJAS V. FAA

makes no mention of a third document received at a later

date. Moreover, in camera review of the document suggests

that it may have been drafted as a response to a request for

information from an outside third party, rather than as an

internal memorandum from APTMetrics to the FAA’s

lawyers. As a result, on this record the FAA failed to carry

its burden of establishing that this document was prepared in

anticipation of litigation.

Rojas objects that, even if APTMetrics’ December 2014

and January 2015 summaries qualify as attorney work-

product, the firm did not conduct the underlying validation

studies in anticipation of litigation. But application of the

attorney work-product privilege does not turn on whether the

records underlying the summaries were created in

anticipation of litigation. What matters is that the summaries

themselves were created in anticipation of litigation, since

those are the documents the FAA seeks to withhold.

Regarding the privilege’s second requirement, the

December 2014 and January 2015 summaries were prepared

for the FAA by APTMetrics. The work-product privilege

covers not only documents prepared by a party but also

documents prepared by others acting on the party’s behalf.

United States v. Nobles, 422 U.S. 225, 238–39 & n.13

(1975); see also Fed. R. Civ. Proc. 26(b)(3)(A) (listing a

party’s “consultant” among those who may prepare a

document subject to work-product protection). That the

summaries were prepared by APTMetrics on the FAA’s

behalf, rather than by the FAA itself, poses no barrier to

application of the work-product privilege.

Because the December 2014 and January 2015

validation summaries are intra-agency memorandums that

would be subject to the attorney work-product privilege in

litigation with the FAA, the FAA properly withheld them

ROJAS V. FAA 21

under Exemption 5. We vacate the district court’s entry of

summary judgment for the FAA as to the third document,

dated September 2, 2015, and remand for further

proceedings with respect to that document.

III 4

Rojas raises two arguments concerning the adequacy of

the FAA’s search for responsive documents. We agree with

the three-judge panel’s unanimous resolution of both

arguments.

First, Rojas contends that the FAA should have been

required to search APTMetrics’ records for documents

responsive to his FOIA request, since such a search would

undoubtedly have turned up the data underlying

APTMetrics’ validation work as well as the validation

studies themselves, rather than just the summaries of those

studies included in the FAA’s Vaughn index. Like the three-

judge panel, we are sympathetic to Rojas’s argument. See

Rojas, 927 F.3d at 1059. It seems counterintuitive to hold

that an outside consultant may be deemed “within” a federal

agency for purposes of invoking Exemption 5, but that

documents created by the consultant on the agency’s behalf

may be outside the scope of the search FOIA requires.

Nonetheless, existing Supreme Court precedent forecloses

Rojas’s contention.

FOIA authorizes a court to compel disclosure of “agency

records.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has

held that agency records must have been created or obtained

by the agency and must be in the agency’s control at the time

4

Chief Judge Thomas and Judges Wardlaw, Rawlinson, M. Smith,

Hurwitz, and Collins join in this part of the majority opinion.

22 ROJAS V. FAA

the FOIA request is made. Department of Justice v. Tax

Analysts, 492 U.S. 136, 144–45 (1989). Documents that are

not in an agency’s possession do not constitute “agency

records” even if the agency could have obtained them by

asking a third party to produce them. Id. at 144. Given this

precedent, the FAA properly limited the scope of its search

to records in the agency’s possession; it had no obligation to

search records in APTMetrics’ possession.

Second, Rojas argues that the declarations submitted by

the FAA fail to show that it “conducted a search reasonably

calculated to uncover all relevant documents,” as our cases

require. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.

1985). To satisfy this requirement, the FAA’s declarations

had to be “nonconclusory” and “relatively detailed in their

description of the files searched and the search procedures”

followed. Id. at 573. But here, the FAA submitted just one

declaration describing the scope of the search, and it stated

only that the search conducted by the Office of the Chief

Counsel “was reasonably calculated to obtain responsive

records because the attorneys who provided legal advice

related to the revisions to the [air traffic controller] hiring

process were asked to review their records.”

The FAA’s declaration falls short of what our cases

require because it offers no details about how the search was

conducted. For example, it does not describe, even in

general terms, the number of attorneys involved, the search

methods they used, the body of records they examined, or

the total time they spent on the search. Cf. Lane v.

Department of Interior, 523 F.3d 1128, 1139 (9th Cir. 2008);

Citizens Commission on Human Rights v. FDA, 45 F.3d

1325, 1328 (9th Cir. 1995). Without details such as these,

we are in no position to conclude that the agency’s search

was reasonably calculated to locate all responsive records.

ROJAS V. FAA 23

See Steinberg v. Department of Justice, 23 F.3d 548, 551–52

(D.C. Cir. 1994) (declaration found inadequate because it

“fail[ed] to describe in any detail what records were

searched, by whom, and through what process”).

* * *

We join six of our sister circuits in adopting the

consultant corollary to Exemption 5, and we hold that the

FAA properly withheld two of the three documents at issue

here under that exemption. However, the FAA did not

establish that the remaining document is protected by the

attorney work-product privilege, and the agency failed to

show that it conducted a search reasonably calculated to

locate all documents responsive to Rojas’s FOIA request.

We vacate the district court’s entry of summary judgment in

the FAA’s favor and remand for further proceedings

consistent with this opinion.

Rojas’s motion for judicial notice (Dkt. No. 7) is

DENIED.

AFFIRMED in part, VACATED in part, and

REMANDED for further proceedings.

The parties shall bear their own costs.

COLLINS, Circuit Judge, concurring:

I concur in the majority opinion, which adopts the

reading of Exemption 5 endorsed by Justice Scalia (joined

by two other Justices) in his dissenting opinion in United

States Department of Justice v. Julian, 486 U.S. 1 (1988).

Under that reading, Exemption 5’s reference to “intra-

24 ROJAS V. FAA

agency memorandums” extends to “one that has been

received by an agency, to assist it in the performance of its

own functions, from a person acting in a governmentally

conferred capacity,” such as a “consultant to the agency.”

Id. at 18 n.1 (Scalia, J., dissenting). 1 I write separately to

respond to the dissents’ erroneous contentions that Justice

Scalia’s reading of Exemption 5 is “atextual,” see Wardlaw

Dissent at 33; that it “rewrites” Exemption 5, see id.; that it

uses “legislative purpose to override statutory text,” see

Bumatay Dissent at 58; and that, ultimately, he (and we)

“simply made it up,” id. at 61.

I

The relevant text of Exemption 5 states that FOIA’s

disclosure requirements do not apply to “inter-agency or

intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552(b)(5). The dissents

assume that, by using the term “intra-agency,” the statute is

“crystal clear” in referring only to memoranda prepared by

“‘employees of a single agency,’” see Wardlaw Dissent

at 35, 36 (emphasis added) (citation omitted), and “leave[s]

no room for documents created by those outside of an

1

In Julian, the Supreme Court held that, even assuming that the

documents in question were “‘inter-agency’ records for purposes of

Exemption 5,” see 486 U.S. at 11 n.9, they were not exempt from

disclosure because, at least as to the requesters in that case, the additional

requirements of Exemption 5 were not met, see id. at 11–14. Justice

Scalia dissented from that latter holding, and as a result, his dissent had

to address the issue of whether Exemption 5 was inapplicable on the

alternative ground that the documents were “not ‘inter-agency or intra-

agency memorandums’ within the meaning of Exemption 5.” Id. at 18

n.1 (Scalia, J., dissenting); see also id. at 11 n.9 (majority opinion)

(majority did “not find it necessary” to reach this issue).

ROJAS V. FAA 25

agency’s employment,” see Bumatay Dissent at 53

(emphasis added). But as Justice Scalia recognized, to the

extent that this employment-based reading might seem to be

the “most natural meaning of the phrase ‘intra-agency

memorandum,’” that is true only if one examines that phrase

“[a]part from its present context.” Julian, 486 U.S. at 18 n.1

(Scalia, J., dissenting) (emphasis added). Here, there are two

features of the statutory text that, considered in context,

point away from the dissents’ narrow, employment-based

reading of Exemption 5.

First, the dissents overlook the fact that the actual words

of the statute require only that the “memorandum[]” be

“intra-agency,” not necessarily that the authors and

recipients be formal employees of that agency. 5 U.S.C.

§ 552(b)(5) (emphasis added). As the Supreme Court

recognized in Department of the Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1 (2001), this feature of the

statutory language plainly allows for a reading under which

“consultants may be enough like the agency’s own personnel

to justify calling their communications ‘intra-agency.’” Id.

at 12 (emphasis added). 2 Thus, while the Court in Klamath

did not decide whether Justice Scalia’s reading of Exemption

5 was correct, see 532 U.S. at 12 (specifically reserving the

question), the Court recognized that, at the very least, Justice

Scalia was right in contending that his view rested on a

“permissible . . . reading of the statue,” Julian, 486 U.S.

2

The Supreme Court’s apt phrasing of this alternative permissible

reading refutes the dissents’ strawman arguments that this construction

rests either on a “geographical” or “location” condition, see Bumatay

Dissent at 55 n.5, or on the view that any document in the agency’s

possession (from any source) is, without more, an “intra-agency”

memorandum, see Wardlaw Dissent at 44–44. Nothing in Justice

Scalia’s dissent in Julian, or in the Supreme Court’s description of his

view in Klamath, adopts the dissents’ caricatures.

26 ROJAS V. FAA

at 18 n.1 (Scalia, J. dissenting) (emphasis added). As the

Klamath Court explained, the reason why consultants might

be enough like employees “to justify calling their

communications ‘intra-agency’” is that “the consultant does

not represent an interest of its own, or the interest of any

other client, when it advises the agency that hires it. Its only

obligations are to truth and its sense of what good judgment

calls for, and in those respects the consultant functions just

as an employee would be expected to do.” 532 U.S. at 11–

12 (emphasis added). 3 Accordingly, the dissents’ contention

that the words of the statute “clearly” and “precisely” require

authorship by a formal employee—as opposed to someone

acting in some other “governmentally conferred capacity,”

Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting)—is simply

incorrect. See Wardlaw Dissent at 35–35; Bumatay Dissent

at 35–36. 4

Second, the dissents overlook the remainder of the

statutory language in Exemption 5, which further elucidates

the types of documents protected by that provision. The

intra-agency memorandums covered by Exemption 5 are

those “that would not be available by law to a party other

than an agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5) (emphasis added). As the text suggests, this

3

By contrast, Klamath held that the same was not true with respect

to a self-interested party who communicates with an agency to further its

own, independent interests, and such a party’s communications with the

agency thus could not be said to be “intra-agency.” 532 U.S. at 12–13.

4

For the same reason, Judge Bumatay is wrong in suggesting that it

is “not clear how else Congress could have expressed its rejection” of

Justice Scalia’s view. See Bumatay Dissent at 60. Had Congress wanted

to limit the excluded memoranda to only those authored by agency

“employees,” it could certainly have added language specifically stating

that.

ROJAS V. FAA 27

language “simply incorporates civil discovery privileges.”

United States v. Weber Aircraft Corp., 465 U.S. 792, 799

(1984); see also NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 154 (1975) (“It is equally clear that Congress had the

attorney’s work-product privilege specifically in mind when

it adopted Exemption 5[.]”). Consequently, in determining

whether a communication is within the agency for purposes

of Exemption 5, it makes sense to consider whether the

communication to the agency is from a person whose

“governmentally conferred capacity,” Julian, 486 U.S. at 18

n.1 (Scalia, J., dissenting), is one that can bring it within the

agency’s litigation privileges. On that score, it is highly

relevant that “there is no question that litigants need not

produce materials covered by the attorney-client privilege or

documents that constitute attorney work-product, including

those prepared by the party’s agents and consultants.”

Rojas v. FAA, 927 F.3d 1046, 1062 (9th Cir. 2019) (Christen,

J., concurring in part and dissenting in part) (emphasis

added) (collecting cases). 5

The dissents nonetheless argue that Exemption 5 should

be restricted to employee-authored memoranda because,

unlike Exemptions 4 and 8, the text of Exemption 5 does not

expressly refer to documents from non-employees. See

Wardlaw Dissent at 35–36; Bumatay Dissent at 58 n.6. But

it is of no relevance that the very different categories of

documents covered by Exemption 4, 5 U.S.C. § 552(b)(4)

(“trade secrets and commercial or financial information

5

Contrary to what the dissents suggest, this does not mean that the

term “‘intra-agency’ does no work at all.” See Bumatay Dissent at 55

n.5; see also Wardlaw Dissent at 44. It simply means that, in choosing

between two permissible readings of “intra-agency,” one should not lose

sight of the entirety of the statutory language and what it reveals about

the statute’s purpose.

28 ROJAS V. FAA

obtained from a person and privileged or confidential”), and

Exemption 8, id. § 552(b)(8) (matters “contained in or

related to examination, operating, or condition reports

prepared by, on behalf of, or for the use of an agency

responsible for the regulation or supervision of financial

institutions”), use language that includes various types of

documents created by persons that everyone would agree are

outsiders. Exemption 5 does not follow the same approach

and therefore would not be expected to use similar language.

It instead applies to “intra-agency memorandums,” and the

question here is what communications by whom and for

what purpose count as such. Put another way, the fact that

Exemption 5 does not broadly sweep in certain categories of

outsider-created documents does not somehow mean that

only employee-authored documents count as “intra-agency”

documents. Because the wording and aim of the provisions

are so different, this is not a situation in which Congress

otherwise used very similar language in multiple different

provisions, but then chose to omit a particular term in one of

those multiple instances. Cf. Russello v. United States,

464 U.S. 16, 23 (1983). Here, the wording of the three

exemptions is so completely dissimilar that the comparative

inference the dissents try to draw is unwarranted.

The dissents are thus wrong in contending that

Exemption 5’s reference to “intra-agency memorandums”

excludes, as a textual matter, the broader reading of

Exemption 5 adopted by Justice Scalia in Julian.

II

Moreover, as Justice Scalia also recognized, his refusal

to read Exemption 5 as limited to employee-authored

documents is not only a “permissible” reading but a

“desirable” one. Julian, 486 U.S. at 18 n.1 (Scalia, J.,

dissenting). Limiting the provision to only those documents

ROJAS V. FAA 29

authored by formal employees “excludes many situations

where Exemption 5’s purpose of protecting the

Government’s deliberative process is plainly applicable.”

Id. It is therefore “textually possible and much more in

accord with the purpose of the provision, to regard as an

intra-agency memorandum one that has been received by an

agency, to assist it in the performance of its own functions,

from a person acting in a governmentally conferred capacity

other than on behalf of another agency.” Id. And in the case

before us, as in Julian, “[h]ere we have . . . memorand[a] that

fit[] readily within this definition.” Id.

The dissents contend that this consideration of the

“purpose” of Exemption 5 disregards “the textualist

revolution,” see Wardlaw Dissent at 38, and amounts to an

“‘escape route from the prison of the text,’” see Bumatay

Dissent at 54 (quoting Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 19 (2012)

(“Reading Law”)). These charges are unfounded, as is the

contention that Justice Scalia in Julian betrayed the very

“principles that [he] spent a lifetime advocating,” see id.

at 12.

The “fair reading” method of textualism that Justice

Scalia endorsed “requires an ability to comprehend the

purpose of the text, which is a vital part of its context.”

Reading Law, supra, at 33. “But the purpose is to be

gathered only from the text itself, consistently with the other

aspects of its context.” Id. (emphasis added). Here, of

course, the purpose of Exemption 5 to protect the

Government’s litigation privileges is express on the face of

the statute itself, which explicitly describes the exemption in

terms of when a document “would not be available by law to

a party . . . in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). It is no lapse into purposivism to insist that, in

30 ROJAS V. FAA

choosing among the permissible readings that the text will

bear, a “textually permissible interpretation that furthers

rather than obstructs the [statute’s] purpose should be

favored.” Reading Law, supra, at 63. The dissents’

employment-based reading of “intra-agency

memorandums” would plainly obstruct Exemption 5’s

purpose to protect the Government’s litigation privileges,

and because there is a permissible reading of the text that

avoids this outcome, it is to be preferred. 6

Neither dissent seriously disputes that the employee-

only reading of Exemption 5 would impede its express

purpose by, for example, requiring disclosure of attorney-

client communications with any outside counsel. Judge

Bumatay instead sidesteps the problem by noting that

attorney-client materials are not at issue on the particular

facts of this case and that the FAA presumably does not rely

on outside counsel. See Bumatay Dissent at 62–63. But

FOIA has a wide reach, and there are entities (such as, for

example, the FDIC) that count as “agencies” for purposes of

FOIA and that use outside counsel frequently enough to have

6

Judge Bumatay is also wide of the mark in chastising the majority

for supposedly “rel[ying] on legislative history to determine Congress’s

purpose in enacting FOIA exemptions.” See Bumatay Dissent at 59. The

referenced portion of the majority opinion quotes a Supreme Court case

identifying the “purpose” of Exemption 5 based on the Supreme Court’s

reliance on legislative history. See Maj. Opin. at 13–14 (quoting Sears,

421 U.S. at 150). I share Justice Scalia’s criticism of the use of

legislative history, but as a judge of an “inferior Court[]” to the “one

supreme Court,” see U.S. CONST. art. III, § 1, I cannot fault the majority

for faithfully following controlling Supreme Court precedent telling us

what the purpose of Exemption 5 is, even if that precedent relies on

legislative history. And, as I have explained, the text of Exemption 5

itself amply confirms the Supreme Court’s point in Sears that Exemption

5’s purpose is to protect confidential communications protected by “civil

discovery privileges.” See Maj. Opin. at 13.

ROJAS V. FAA 31

written guidelines on the subject. See FDIC, “Information

for Prospective Outside Counsel,” <https://www.fdic.gov/

buying/legal/ocbrochure/information-for-prospective-

outside-counsel.pdf>. 7

Judge Wardlaw, by contrast, does not avoid the

implications of the employee-only reading of Exemption 5.

Instead, to the extent that this reading would allow FOIA to

vitiate “even attorney-client materials,” Judge Wardlaw

views that as simply the price to pay to “ensure[] that the

workings of the Executive Branch are transparent to the

American people.” See Wardlaw Dissent at 44–46. Indeed,

Judge Wardlaw erroneously disregards the purpose of

Exemption 5 altogether, treating it as always subordinate to

FOIA’s overarching aim of disclosure—so much so that,

under her view, we must adopt any pro-disclosure reading of

the text, apparently without regard to any other textual

canons. See id. at 41. This flawed analysis overlooks the

fact that FOIA’s “exemptions are as much a part of FOIA’s

purposes and policies as the statute’s disclosure

requirement.” Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356, 2366 (2019) (simplified); see also Reading

Law, supra, at 168 (“[L]imitations on a statute’s reach are as

much a part of the statutory purpose as specifications of what

is to be done.”). And here, of course, it is the text of an

exemption that is at issue.

7

Judge Bumatay suggests that the implications of his position may

not be as ominous as they seem for such agencies, because he speculates

that maybe all of their outside counsel are actually formally designated

as “special Government employees.” See Bumatay Dissent at 63 n.9.

However, he cites nothing to support this speculation, which seems at

odds with the FDIC’s outside-counsel handbook as well as with the

applicable FDIC regulations, which designate them as “contractors.” See

12 C.F.R. pt. 366.

32 ROJAS V. FAA

III

Because Justice Scalia’s reading of Exemption 5 is both

“textually possible and much more in accord with the

purpose of the provision,” Julian, 486 U.S. at 18 n.1 (Scalia,

J., dissenting), I agree with the majority’s endorsement of

that reading. And the dissents are thus wrong in insisting

that the statutory text requires this court to create a 6–1

circuit split by jettisoning 50 years of settled case law that

Congress has never seen fit to reject. 8 Cf. Monessen Sw. Ry.

Co. v. Morgan, 486 U.S. 330, 338 (1988) (“Congress’ failure

to disturb a consistent judicial interpretation of a statute may

provide some indication that Congress at least acquiesces in,

and apparently affirms, that interpretation.” (simplified)).

8

Judge Wardlaw wrongly contends that the Sixth Circuit in Lucaj v.

FBI, 852 F.3d 541 (6th Cir. 2017), “cast serious doubt on whether the

consultant corollary can be found in Exemption 5’s text.” See Wardlaw

Dissent at 39. The target of the Sixth Circuit’s criticism was the distinct

(and much broader) “common-interest doctrine,” on which the FBI had

relied in that case. 852 F.3d at 547–48. In rejecting the FBI’s contention,

the Sixth Circuit reasoned that “when the Department of the Interior

made the same argument in Klamath, the Supreme Court rejected it.” Id.

at 548. Given that the Supreme Court in Klamath expressly declined to

reject the so-called “consultant corollary,” the “same argument” that was

rejected by both the Sixth Circuit and the Supreme Court cannot have

been that doctrine. Rather, as the Sixth Circuit explained, it and the

Supreme Court rejected the view “‘that “intra-agency” is a purely

conclusory term, just a label to be placed on any document the

Government would find it valuable to keep confidential’”—which is a

fair description of the common-interest doctrine. Id. (quoting Klamath,

532 U.S. at 12). As a result, with today’s en banc decision, there is now

no circuit split on the “consultant corollary.”

ROJAS V. FAA 33

WARDLAW, Circuit Judge, with whom THOMAS, Chief

Judge, and HURWITZ, Circuit Judge, join, concurring in

part and dissenting in part:

Less than two years ago, the Supreme Court

reemphasized that federal courts must interpret and apply

FOIA in accordance with that statute’s plain text and

structure. See Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356, 2362–63 (2019). That lesson rings

particularly true when, as here, FOIA’s plain text aligns with

FOIA’s presumption of government transparency. See

Milner v. Dep’t of Navy, 562 U.S. 562, 571 (2011). But

today, the majority ignores these principles, embraces an

atextual “consultant corollary” doctrine, and, in doing so,

rewrites FOIA Exemption 5. For these reasons, I

1

respectfully dissent.

I.

FOIA grants the public a qualified statutory right of

access to federal agency “records.” See 5 U.S.C.

§ 552(a)(3)(A), (b). Thus, when a member of the public

“requests” records from an agency, the agency must disclose

those records “unless they fall within one of nine

exemptions.” Milner, 562 U.S. at 565.

Exemption 5, at issue here, shields from disclosure

“inter-agency or intra-agency memorandums or letters that

would not be available by law to a party other than an agency

in litigation with the agency . . . .” 5 U.S.C. § 552(b)(5). By

its plain terms then, this exemption applies only if the

“communication” being sought is “inter-agency or intra-

agency.” Dep’t of Interior v. Klamath Waters Users

1

Because I agree with the majority that the FAA’s search for records

was inadequate, I join part III of the majority opinion.

34 ROJAS V. FAA

Protective Ass’n, 532 U.S. 1, 9 (2001). The majority rightly

acknowledges that the documents sought here are not “inter-

agency” because APTMetrics—the outside consulting firm

that prepared these documents—is “not a federal agency in

its own right.” Maj. Op. at 12. Thus, this case hangs on

whether the documents APTMetrics prepared and

transmitted to the FAA count as “intra-agency”

memorandums or letters.”

In answering that question, the “proper starting point lies

in a careful examination of the ordinary meaning and

structure of the law itself.” Argus Leader, 139 S. Ct. at 2364.

We therefore turn to FOIA’s text. FOIA itself defines the

term “agency.” 5 U.S.C. §§ 551(1), 552(f). “With

exceptions not relevant here,” that word “means ‘each

authority of the Government of the United States,’ and

‘includes any executive department, military department,

Government corporation, Government controlled

corporation, or other establishment in the executive branch

of the Government . . . , or any independent regulatory

agency.’” Klamath, 532 U.S. at 9 (quoting 5 U.S.C.

§§ 551(1), 552(f)). Nothing in this definition provides a

textual hook for thinking of outside contractors as part of a

federal agency.

As for “intra,” FOIA nowhere defines that term. “So, as

usual” and as with other “undefined terms in FOIA[,]” we

look to this term’s “ordinary, contemporary, common

meaning [] when Congress enacted FOIA in 1966.” Argus

Leader, 139 S. Ct. at 2362 (internal quotation marks and

citations omitted). Much as it does now, the term “intra”

then meant “in” or “within,” Black’s Law Dictionary 957

(Rev. 4th Ed. 1968); Webster’s Seventh New Collegiate

Dictionary 444 (1961), or perhaps “in the interior,”

Webster’s Second New Int’l Dictionary of the Eng.

ROJAS V. FAA 35

Language 1302 (1959). Coupled with FOIA’s definition of

“agency,” the term “intra-agency” clearly signals the idea of

being “in” or “within” a federal agency. The question then

becomes what Congress meant when it joined that

understanding of “intra-agency” to the words

“memorandums or letters.”

In this regard, the Supreme Court has acknowledged that

“the most natural meaning of the phrase ‘intra-agency

memorandum’ is a memorandum that is addressed both to

and from employees of a single agency.” Klamath, 532 U.S.

at 9 (internal quotation marks and citation omitted). In other

words, intra-agency memorandums and letters are circulated

within—and only within—an agency. This makes good

sense, for “[n]either the terms of [Exemption 5] nor the

statutory definitions say anything about communications

with outsiders.” Id.; see also John C. Brinkerhoff Jr.,

FOIA’s Common Law, 36 Yale J. on Reg. 575, 583 (2019)

(“It is doubtful that any reasonable reading of ‘inter-agency

or intra-agency’ could encompass third parties.”).

Exemption 5’s silence on communications and

documents from outsiders is especially notable because

other FOIA exemptions explicitly include such

communications and documents. Exemptions 4 and 8

expressly encompass information generated outside of a

federal agency. See 5 U.S.C. § 552(b)(4) (permitting the

withholding of “trade secrets and commercial or financial

information obtained from a person and privileged or

confidential” (emphasis added)); id. § 552(b)(8) (shielding

from disclosure information “contained in or related to

examination, operating, or condition reports prepared by, on

behalf of, or for the use of an agency responsible for the

regulation or supervision of financial institutions” (emphasis

added)). Congress thus knew how to specify that FOIA

36 ROJAS V. FAA

exemptions cover documents from outside third parties, and

it did so in these other exemptions. See Dep’t of Homeland

Sec. v. MacLean, 574 U.S. 383, 392 (2015). That

Exemptions 4 and 8 explicitly speak to this issue—but

Exemption 5 does not—makes clear that Exemption 5

applies only to records that originate and remain inside the

federal government.

What’s more, reading “intra-agency memorandums or

letters” to cover the exchange of documents within a federal

agency runs parallel to the judicial interpretation of “inter-

agency . . . memorandums or letters.” With the word “inter-

agency,” “Congress plainly intended to permit one agency

possessing decisional authority to obtain written

recommendations and advice from a separate agency not

possessing such decisional authority without requiring that

the advice be any more disclosable than similar advice

received from within the agency.” Renegotiation Bd. v.

Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975).

Congress thus permitted the withholding of memorandums

or letters exchanged “between” agencies, just as its use of

the word “intra-agency” allows for the withholding of

memorandums or letters exchanged “within” agencies.

In short, Exemption 5’s text is crystal clear: documents

or communications exchanged with outside consultants do

not fall within that exemption. For “outside consultants” are,

by definition, not “within” a federal agency. They are

independent contractors, hired to assist an agency with a

finite task that the agency has decided to outsource. Indeed,

APTMetrics and its employees may have worked alongside

the FAA’s employees in this case, but it and its employees

are not an arm of the Executive Branch. Our judicial inquiry

should thus be at an end. Argus Leader, 139 S. Ct. at 2364.

ROJAS V. FAA 37

II.

“So where did the [consultant corollary] come from?”

Id. (emphasis in original). The answer is a piece of

untethered dicta (Footnote 44 to be exact) in a D.C. Circuit

case from the early 1970’s. See Soucie v. David, 448 F.2d

1067, 1078 n.44 (D.C. Cir. 1971). Footnote 44 spoke into

existence the consultant corollary without examining either

Exemption 5’s text or FOIA’s overarching structure. 2 The

Soucie court instead sought to discern Congress’s purpose in

enacting Exemption 5, and then considered what other

situations not covered by Exemption 5’s text could benefit

from a similar rationale. Yet, as we all know by now, such

an “approach is a relic from a bygone era of statutory

construction.” Argus Leader, 139 S. Ct. at 2364 (internal

quotation marks and citation omitted).

Still, “judicial inertia” proved a powerful thing. Rojas v.

Fed. Aviation Admin., 927 F.3d 1046, 1057 (9th Cir. 2019),

reh’g en banc granted. What Soucie’s Footnote 44 set in

motion, the Fifth Circuit continued in Wu v. National

Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972).

Again, that court did not bother to confront Exemption 5’s

text or FOIA’s structure. Id. at 1032. It simply quoted

Soucie and moved along. Id. The First and Second Circuits

soon fell in line, relying on Soucie, Wu, and later Fifth

2

Footnote 44 states: “The rationale of the exemption for internal

communications indicates that the exemption should be available in

connection with the Garwin Report even if it was prepared for an agency

by outside experts. The Government may have a special need for the

opinions and recommendations of temporary consultants, and those

individuals should be able to give their judgments freely without fear of

publicity. A document like the Garwin Report should therefore be

treated as an intra-agency memorandum of the agency which solicited

it.” Soucie, 448 F.2d at 1078 n.44.

38 ROJAS V. FAA

Circuit cases that cited Wu rather than conducting any sort

of textual or structural analysis for themselves. See Gov’t

Land Bank v. Gen. Servs. Admin., 671 F.2d 663, 665 (1st Cir.

1982); Lead Indus. Ass’n, Inc. v. OSHA, 610 F. 2d 70, 83 (2d

Cir. 1979). Meanwhile, the D.C. Circuit paid lip service to

Exemption 5’s text in Ryan v. Department of Justice,

617 F.2d 781 (D.C. Cir. 1980), but interpreted that text “in

light of [Exemption 5’s] purpose,” id. at 789, which it

divined from legislative history, and the judicial “common

sense” espoused in Wu and Soucie, id. at 790 & n.30; see

also Brinkerhoff, supra, at 614 (“[O]nce a court made an

initial interpretation, others could simply cite that decision

rather than re-explain the tensions between FOIA’s text and

diverging doctrine.”).

The Supreme Court watched these developments from a

distance. In 1988, in the early days of the textualist

revolution, three dissenting justices suggested in a footnote

without much analysis that the consultant corollary doctrine,

though not the “most natural meaning” of Exemption 5, was

“a permissible and desirable reading of the statute.” U.S.

Dep’t of Just. v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J.,

dissenting). Those justices did not, however, explain why

this meaning was “textually possible,” what “the purpose of”

Exemption 5 was, or why that purpose should trump the

exemption’s plain text. Id.

Thirteen years later in Klamath, a unanimous Court

brought this debate into somewhat sharper focus. On the one

hand, it acknowledged that “neither the terms of

[Exemption 5] nor the statutory definitions say anything

about communications with outsiders.” Klamath, 532 U.S.

at 9. It further affirmed that the words “inter-agency or intra-

agency” in Exemption 5 are not “purely conclusory term[s]”

and that there exists no “textual justification for draining the

ROJAS V. FAA 39

[inter-agency or intra-agency requirement] of independent

vitality.” Id. at 12. On the other hand, the Court quoted the

footnote in Justice Scalia’s Julian dissent to highlight the

previously advanced argument in favor of the consultant

corollary doctrine. See id. at 9–10. But the Court had no

occasion to settle this controversy in Klamath, see id. at 12,

and resolved that case on other grounds, see id. at 12–15.

The debate surrounding the consultant corollary doctrine

and its variants has remained unsettled in the wake of

Klamath. One court of appeals has fallen in line with the

Soucie consensus, though based on a clear misreading of

Klamath. See Stewart v. U.S. Dep’t of Interior, 554 F.3d

1236, 1244 (10th Cir. 2009) (stating incorrectly that Klamath

had definitively “recogniz[ed] that Exemption 5 extends to

government agency communications with paid

consultants”). Another applied the doctrine without

analyzing Klamath at all, Hanson v. U.S. Agency for Int’l

Dev., 372 F.3d 286, 291–94 (4th Cir. 2004), and, over a

dissent, has since extended Exemption 5 even further, far

beyond the bounds of the consultant corollary, Hunton &

Williams v. U.S. Dep’t of Just., 590 F.3d 272, 279–80 (4th

Cir. 2010). Only the Sixth Circuit has bucked the Soucie

trend and, at the least, cast serious doubt on whether the

consultant corollary can be found in Exemption 5’s text. See

Lucaj v. Fed. Bureau of Invest., 852 F.3d 541, 548–49 (6th

Cir. 2017) (refusing to read Exemption 5’s plain text to

embrace the common interest doctrine and implying that the

consultant corollary suffers from similar defects).

Meanwhile, even within circuits that have embraced the

consultant corollary, there remain clear misgivings. See,

e.g., Nat’l Inst. of Military Just. v. Dep’t of Def., No. 06-

5242, 2008 WL 1990366, at *1 (D.C. Cir. April 30, 2008)

(Tatel, J., concurring in the denial of rehearing en banc) (“I

continue to believe that the documents at issue here fall

40 ROJAS V. FAA

outside the protection of Exemption 5 of the Freedom of

Information Act because they cannot plausibly be described

as ‘intra-agency’ . . . .”).

If you expected a long and storied history of careful

analysis and reasoning to lie behind the consultant corollary,

you probably feel disappointed. Readers familiar with FOIA

might even feel a sense of déjà vu in all this. As in Milner

and Argus Leader, a decades-old D.C. Circuit decision that

contained no meaningful analysis of FOIA’s text gave birth

to an atextual doctrine. And as in those cases, other circuits

followed the D.C. Circuit’s lead without meaningful analysis

of the text or structure of Exemption 5. We can only

speculate as to where this will end.

III.

To its credit, the majority opinion acknowledges that

adopting the consultant corollary is not the most natural

reading of Exemption 5. Maj. Op. at 12. Its analysis

laudably does more than blindly cite to Soucie, Wu, or their

progeny. However, it can only adopt the consultant

corollary by distorting Exemption 5’s context and legislative

purpose. Maj. Op. at 13. None of this analysis was

necessary given Exemption 5’s plain text, and perhaps

worse, none of it holds up to careful scrutiny.

On every level, FOIA’s statutory context cuts against the

consultant corollary. At the highest level, “disclosure, not

secrecy, is the dominant objective of” FOIA, Klamath,

532 U.S. at 8, and “Congress undoubtedly sought to expand

public rights of access to Government information” through

this Act, Forsham v. Harris, 445 U.S. 169, 178 (1980). The

statute thus contains multiple different mechanisms to

facilitate government transparency. See 5 U.S.C.

§ 552(a)(1)–(3), (5). “This pro-disclosure framework is

ROJAS V. FAA 41

deliberate” and embodies “the power of frustration reflected

in congressional distrust for agency withholding[,]”

Brinkerhoff, supra, at 577 (internal quotation marks and

citation omitted), which stemmed from the litany of

government abuses before FOIA and the Watergate scandal,

see 1 O’Reilly, Fed. Info. Disclosure §§ 2:2, 3:8 (2018).

Zooming in to focus on the context of FOIA’s

exemptions is similarly unhelpful to the majority’s cause.

These nine limited exemptions are “explicitly made

exclusive and must be narrowly construed.” Milner,

562 U.S. at 564 (internal quotation marks and citations

omitted); see also 5 U.S.C. § 552(d). Therefore, even if

there are two equally plausible readings of a given FOIA

exemption, we must favor the one that promotes government

transparency—not secrecy. See Dep’t of Air Force v. Rose,

425 U.S. 352, 366 (1976) (“FOIA requires us to choose that

interpretation most favoring disclosure.”); John Doe Agency

v. John Doe Corp., 493 U.S. 146, 164 (1989) (Scalia, J.,

dissenting) (“[O]ur doctrine of ‘narrowly construing’ FOIA

exemptions requires that ambiguity to be resolved in favor

of disclosure.”).

If anything, then, statutory context dooms the majority’s

reading of Exemption 5. Although the plain text of the word

“intra-agency” should alone resolve this case, the majority

(wrongly) views this word as having two equally plausible

interpretations. Maj. Op. at 13. One interpretation reads

Exemption 5 narrowly, rejects the consultant corollary, and

thus favors disclosure; the other does the exact opposite.

That dichotomy should make our job easy. Because the tie

goes to disclosure, so to speak, we should side with the

narrow interpretation of “intra-agency” and refuse to adopt

the consultant corollary. See Rose, 425 U.S. at 366.

42 ROJAS V. FAA

Instead, the majority’s “tiebreaker” is a myopic reading

of the purposes behind Exemption 5. To be sure, that

exemption reflects a justifiable policy concern with

protecting an agency’s internal deliberations and preventing

the disclosure of certain privileged documents. See

Klamath, 532 U.S. at 8–9; United States v. Weber Aircraft

Corp., 465 U.S. 792, 801 (1984). But “the point” of

Exemption 5 “is not to protect Government secrecy pure and

simple,” and thus “the first condition of Exemption 5 is no

less important than the second; the communication must be

‘inter-agency or intra-agency.’” Klamath, 532 U.S. at 9;

Brinkerhoff, supra, at 584 (explaining that Congress did not

transfer the privileges existing prior to FOIA’s enactment to

Exemption 5 “unscathed”). In other words, Exemption 5

protects from disclosure only certain privileged agency

documents—i.e., those that are inter- or intra-agency.

In this respect, it is notable that the cases from which the

majority surmises the purpose of Exemption 5 all predate

Klamath. Maj. Op. at 13–14. Before Klamath, the Supreme

Court’s Exemption 5 cases had addressed only half of the

Exemption 5 inquiry. See 532 U.S. at 8 (“Our prior cases on

Exemption 5 have addressed the second condition,

incorporating civil discovery privileges.”). Klamath thus

marked the first time that the Supreme Court addressed the

full purpose of Exemption 5, and the Court there specifically

warned against draining Exemption 5’s “intra-agency or

inter-agency” requirement of “independent vitality.” Id.

at 12.

That Congress intended Exemption 5 to protect less than

the full universe of privileged government documents is also

far from surprising. Early drafts of FOIA immunized even

fewer of these documents from disclosure. They shielded

only “agency internal memoranda used in disposing of

ROJAS V. FAA 43

adjudicatory or rulemaking matters[,]” and refused to protect

even “routine internal agency correspondence.” 1 O’Reilly,

Fed. Info. Disclosure § 2:3. Of course, the Executive Branch

balked at this language, and a compromise was ultimately

reached. See id. § 15:2. Together, the political branches

drew a new line at “intra-agency or interagency

memorandums or letters that would not be available by law

to a party other than an agency in litigation with the agency.”

5 U.S.C. § 552(b)(5); see also 1 O’Reilly, Fed. Info.

Disclosure § 15:2. The release of some privileged

documents through FOIA is thus by no means the aberration

the majority suggests, but a long-planned feature of FOIA.

See Klamath, 532 U.S. at 16 (“Congress had to realize that

not every secret under the old law would be secret under the

new.”).

Judge Collins’s concurrence makes a similar misstep,

though he frames this argument as a contextual reading of

the word “intra-agency” rather than one based on legislative

purpose. Collins Concurrence at 26–27. However, as

already explained, that Exemption 5’s text envisions

protecting some privileged documents from disclosure by no

means signals that Congress intended to withhold from

scrutiny all such documents. Cf. Klamath, 532 U.S. at 11–

12 (“From the recognition of this interest in frank

communication, which the deliberative process privilege

might protect, the Department would have us infer a

sufficient justification for applying Exemption 5 to

communications with the Tribes, . . . But the Department’s

argument skips a necessary step, for it ignores the first

condition of Exemption 5, that the communication be ‘intra-

agency or inter-agency.’”); id. at 16 (“FOIA’s mandate of

broad disclosure . . . was obviously expected and intended to

affect Government operations.”).

44 ROJAS V. FAA

Finally, as already explained, Exemption 5’s use of the

word “intra-agency” does not protect just any memorandum

or letter within an agency, regardless of whether its authors

and recipients were agency employees. Collins Concurrence

at 24. But two additional points are worth emphasizing.

First, such a reading would render the term “intra-agency . . .

purely conclusory” and without “independent vitality,” id.

at 32, for every document potentially subject to a FOIA

request is “within” an agency, see U.S. Dep’t of Just. v. Tax

Analysts, 492 U.S. 136, 142, 144–46 (1989). Second, that

reading would also cause courts to read Exemption 5’s

parallel terms “intra-agency” and “inter-agency” in

asymmetric ways. Intra-agency memorandums or letters

would merely need to be physically (or digitally) within an

agency, while inter-agency memorandums or letters would

need to have been exchanged between agencies. Reading

these terms, located in the same sentence, to diverge in such

a manner runs counter to a faithful interpretation of FOIA’s

text. See United States v. Williams, 553 U.S. 285, 294

(2008) (“[A] word is given more precise content by the

neighboring words with which it is associated.”).

IV.

All that remains at this point is a consequentialist

argument based on a fear of the quantity and types of

government documents that may enter the public domain if

we take Congress at its word in Exemption 5. As judges, we

are former lawyers, and it is only natural that our instincts

lead us away from the possibility that Congress authorized

the disclosure of sensitive documents—for instance,

attorney work-product or even attorney-client materials. See

Maj. Op. at 15. And to be sure, Exemption 5, like all FOIA

exemptions, plays an important role in FOIA’s statutory

scheme. See Argus Leader, 139 S. Ct. at 2366; Collins

ROJAS V. FAA 45

Concurrence at 31. But, we must respect the statutory

scheme that Congress created and read Exemption 5 as

Congress wrote it; we cannot “tak[e] a red pen to the statute”

and “cut[] out some words and past[e] in others.” Milner,

562 U.S. at 573 (internal quotation marks and citation

omitted); see also Argus Leader, 139 S. Ct. at 2366 (“[W]e

cannot properly expand Exemption 4 beyond what its terms

permit[;] we cannot arbitrarily constrict it either.”). Indeed,

“[b]y suggesting that our interpretation of Acts of Congress

adopted [five decades] ago should be inflected based on the

costs of enforcing them today, the [majority] tips its hand.”

McGirt v. Oklahoma, 140 S. Ct. 2452, 2481 (2020).

Besides, “dire warnings are just that, and not a license

for us to disregard the law.” Id. If Congress has had a

change of heart, it can always amend FOIA, which it has

proven itself more than willing to do. See, e.g., OPEN FOIA

Act of 2009, Pub L. No. 111-83, § 564, 123 Stat. 2142, 2184

(2009); Electronic Freedom of Information Act

Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048

(1996). Congress has amended FOIA in the wake of judicial

rulings it does not like, see 1 O’Reilly, Federal Information

Disclosure § 3:9, and has even “amended FOIA when it

wanted to stop the use of FOIA as an end run around

discovery,” Brinkerhoff, supra, at 595 n.154 (collecting

sources discussing Congress’s “1987 amendments to

Exemption 7” stemming from “a gang member’s use of

FOIA to discover law enforcement information”).

And, should Congress allow an honest reading of

Exemption 5’s text to stand, pessimism need not rule the day.

“In FOIA, after all, a new conception of Government

conduct was enacted into law, a general philosophy of full

agency disclosure.” Klamath, 532 U.S. at 16 (internal

quotation marks and citation omitted). “Congress believed

46 ROJAS V. FAA

that this philosophy, put into practice, would help ‘ensure an

informed citizenry, vital to the functioning of a democratic

society.’” ’Tax Analysts, 492 U.S. at 142 (1989) (quoting

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242

(1978)). Giving Exemption 5 its fair compass, and nothing

more, lives up to these ideals, and ensures that the workings

of the Executive Branch are transparent to the American

people.

V.

Like so many other courts of appeals, today our court

disregards the plain text of Exemption 5 and continues a long

history of judicial deference to Executive secrecy. Because

I disagree with that approach and do not think we should

perpetuate this interpretation of Exemption 5, I respectfully

dissent.

THOMAS, Chief Judge, concurring in part and dissenting in

part:

I join Judge Wardlaw’s dissent in full. I also agree with

the majority opinion’s holding that the Federal Aviation

Administration (“FAA”) did not meet its burden to show that

it conducted an adequate search for documents responsive to

Jorge Rojas’s Freedom of Information Act (“FOIA”)

request. I write separately to observe that, even if the

consultant corollary formed part of Exemption 5, it would

not protect the specific information sought in this case.

Rojas’s FOIA request was for “information regarding the

empirical validation” of the FAA’s 2015 “biographical

assessment[.]” These types of validation studies are

addressed in the United States Equal Employment

ROJAS V. FAA 47

Opportunity Commission’s Uniform Guidelines on

Employee Selection Procedures. See generally 29 C.F.R. pt.

1607. The Uniform Guidelines require that any employment

screening test that results in adverse impact on members of

any race, sex, or ethnic group must be validated by study,

and the Uniform Guidelines establish detailed criteria for

such validation studies. 29 C.F.R. §§ 1607.3(A), 1607.5.

Most importantly for our purposes, the Uniform

Guidelines require employers and agencies to maintain

documentation of the validation studies and make the studies

available for review. Specifically, the Uniform Guidelines

provide that “[a]ny employer . . . which uses a selection

procedure as a basis for any employment decision” “should

maintain and have available” documentation of the selection

procedure’s adverse impact, if any, and evidence of its

validity. 29 C.F.R. §§ 1607.5(D), 1607.15, 1607.16(W).

The FAA has recognized its obligation under the

Uniform Guidelines to conduct validation studies and

maintain them. Indeed, the FAA’s Deputy Assistant

Administrator for Human Resource Management testified

before Congress that compliance with the Uniform

Guidelines “is legally an obligation we have as an agency,”

and that the FAA’s consultants accordingly had “done the

validation work to ensure that the [biographical assessment]

is valid.” A Review of the Federal Aviation Administration’s

Air Traffic Controller Hiring, Staffing, and Training Plans:

Hearing Before the Subcomm. on Aviation of the H. Comm.

on Transp. & Infrastructure, 114th Cong. 21 (2016).

Further, the FAA has repeatedly confirmed that both the

2014 and 2015 biographical assessments had been validated.

A document that an agency is required to produce and

maintain is not a document prepared in anticipation of

litigation. See Am. Civ. Liberties Union of N. Cal. v. U.S.

48 ROJAS V. FAA

Dep’t of Just., 880 F.3d 473, 485–86 (9th Cir. 2018). Thus,

Exemption 5 cannot shield the validation studies from

disclosure under FOIA.

In this case, the record indicates that the FAA has either

conducted an inadequate search for documents it actually

possesses or has disregarded the Uniform Guidelines’

instructions to “maintain and have available” evidence of the

biographical assessment’s validation by leaving it in

APTMetrics’ possession and attempting to shield it from

disclosure under FOIA. 29 C.F.R. §§ 1607.5(D), 1607.15.

An agency cannot avoid its responsibility to conduct and

maintain employment screening test validation studies by

placing the studies in third-party hands and claiming that the

studies were prepared in anticipation of litigation. Such a

practice would violate the Uniform Guidelines and frustrate

FOIA’s “policy of broad disclosure of Government

documents[.]” Fed. Bureau of Investigation v. Abramson,

456 U.S. 615, 621 (1982).

Of course, the present record is not fully developed on

these issues, and the instant appeal is limited to summaries

of the studies, but the district court will have the opportunity

to revisit these issues on remand.

In sum, I agree with Judge Wardlaw that FOIA’s

Exemption 5 does not afford “consultant corollary”

protection for documents exchanged with a non-

governmental entity. However, even if the consultant

corollary could be grafted onto Exemption 5, it would not

protect the information Rojas sought in his FOIA request

because the information was required to be maintained and

made publicly available by the agency.

Therefore, I respectfully concur in part and dissent in

part.

ROJAS V. FAA 49

IKUTA, Circuit Judge, with whom GRABER and

CALLAHAN, Circuit Judges, join, and BUMATAY, Circuit

Judge, joins except as to footnote 1, dissenting in part:

I write separately because I disagree with the majority’s

conclusion that the declaration submitted by the FAA failed

to show that the agency “conducted a search reasonably

calculated to uncover all relevant documents” in response to

Rojas’s FOIA request. Zemansky v. EPA, 767 F.2d 569, 571

(9th Cir. 1985) (cleaned up). 1

“In response to a FOIA request, government agencies

must conduct a reasonable search to find any documents

responsive to the request.” Hamdan v. Dep’t of Justice,

797 F.3d 759, 770 (9th Cir. 2015). A search is reasonable if

it is “reasonably calculated to uncover all relevant

documents.” Zemansky, 767 F.2d at 571 (citation omitted).

“An agency can demonstrate the adequacy of its search

through ‘reasonably detailed, nonconclusory affidavits

submitted in good faith.’” Hamdan, 797 F.3d at 770

(quoting Zemansky, 767 F.2d at 571). “Affidavits submitted

by an agency to demonstrate the adequacy of its response are

presumed to be in good faith.” Id. In short, our standard

requires the agency to make a “reasonable search” in light of

the FOIA request at issue. See id.

Here, Rojas’s FOIA request was limited to the following:

1

I otherwise agree with the majority’s interpretation of “intra-

agency memorandums or letters” to include documents prepared by

outside consultants hired by the agency to assist in carrying out the

agency’s functions. Therefore, I would affirm the district court’s

summary judgment order for the FAA as to the first two withheld

documents, and reverse as to the third document for the reasons stated in

the majority opinion.

50 ROJAS V. FAA

I am requesting information regarding the

empirical validation of the biographical

assessment noted in the rejection notification.

This includes any report created by, given to,

or regarding APTMetrics’ evaluation and

creation and scoring of the assessment.

Only the search undertaken by the FAA’s Office of the

Chief Counsel is at issue in this appeal. The Office of Chief

Counsel’s involvement in the Air Traffic Control Specialists

(ATCS) hiring process was limited to requesting and

obtaining a summary of APTMetrics’ “validation work

related to the use of the [Biographical Assessment] as an

instrument in the ATCS selection process,” in connection

with potential future litigation. This assignment to

APTMetrics was narrowly focused: According to the FAA’s

Vaughn index, only three documents related to this

assignment were found in the FAA’s legal office.

Given this context, asking the lawyers in the office who

had been assigned to provide legal advice regarding the

revisions to the ATCS hiring process to search their files for

responsive documents would be a reasonable response to

Rojas’s FOIA request.

And that was exactly what the Office of the Chief

Counsel did. Yvette Armstead, the Assistant Chief Counsel

at the Office of the Chief Counsel’s Employment and Labor

Law Division (AGC-100), is the lawyer responsible for

providing “legal advice related to the hiring process for

[ATCS] at the Federal Aviation Administration.” According

to her declaration, which we presume to be in good faith:

AGC-100 conducted a second search for

documents responsive to Plaintiff's request

within our office. This search was

ROJAS V. FAA 51

reasonably calculated to obtain responsive

records because the attorneys who provided

legal advice related to the revisions to the

ATCS hiring process were asked to review

their records.

There is no dispute that the search described in this

simple statement was reasonable under the circumstances.

Rojas does not challenge the scope or methods of the search

described in this statement. Nor has Rojas argued that the

FAA should have expanded its search or found specific

categories of additional documents. Cf. Lahr v. Nat’l

Transp. Safety Bd., 569 F.3d 964, 988 (9th Cir. 2009)

(rejecting the claim that the government’s searches were

inadequate because they failed to uncover documents

referenced in produced records); Lane v. Dep’t of Interior,

523 F.3d 1128, 1139 (9th Cir. 2008) (same). While we have

indicated that an agency’s search might be insufficient if

“other databases are likely to turn up the information

requested” or if a standard search turns up leads “that suggest

other records might be located elsewhere,” Hamdan,

797 F.3d at 772, Rojas does not suggest there was any such

deficiency here. Rojas’s FOIA request did not require a

search of thousands of files or massive electronic databases,

and Rojas does not argue otherwise.

Given the limited search required by Rojas’s FOIA

request, the agency’s simple description of its search

provided reasonably adequate detail. It describes who was

asked to conduct a search—the attorneys who were involved

in the ATCS hiring process revisions, i.e., the only persons

in the Office of the Chief Counsel who would have

responsive documents. It also describes the search methods

used and the body of records examined: the attorneys

reviewed their files for relevant documents. In the context

52 ROJAS V. FAA

of this particular search, nothing more was required to

provide a reasonable description of the files searched or the

search procedure used.

The majority fails to provide any reasonable analysis or

explanation for its contrary—and conclusory—holding that

the FAA’s declaration “falls short” of what is required. Maj.

at 22. Instead of explaining why the FAA’s description of

its search was not “reasonably detailed” in the particular

context of this case, see Hamdan, 797 F.3d at 770, the

majority makes a rote recital that the declaration “offers no

details about how the search was conducted,” because it fails

to describe “the number of attorneys involved, the search

methods they used, the body of records they examined, or

the total time they spent on the search.” Maj. at 22. This

criticism is not reasonable. The declaration provides all

relevant information: the office that conducted the search,

the persons asked to conduct the search, the search

procedure, and the search scope. Although the declaration

does not state how many attorneys were involved, or how

much time was spent on their search, the majority fails to

explain why the lack of such details here makes the

information that was provided fatally inadequate. While

more details may be needed to demonstrate the adequacy of

a search involving large databases in multiple locations and

with numerous custodians, it is not reasonably required in

this context.

Nor does our precedent support the majority’s

conclusions. The cases cited by the majority merely

reviewed the agency declarations and approved them. Maj.

at 22 (citing Lane, 523 F.3d at 1139; Citizens Commission

on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir.

1995)). We have never held that specific details were

required or that the absence of such details would render a

ROJAS V. FAA 53

declaration per se insufficient. Our case law requires only

that an affidavit be “reasonably detailed.” Hamdan,

797 F.3d at 770. What constitutes a “reasonably detailed”

affidavit must—reasonably—depend on the context of the

particular search. By ignoring the context, the majority

requires an agency to incant magic words, and ignores our

touchstone of reasonableness under the circumstances.

Because the declaration here is “reasonably detailed” to

establish that the FAA’s search was adequate in the

circumstances presented here, the FAA is entitled to

summary judgment on this issue as a matter of law.

BUMATAY, Circuit Judge, concurring in part and

dissenting in part:

Our task should have been simple. Exemption 5 of the

Freedom of Information Act (“FOIA”) protects only “inter-

agency or intra-agency memorandums or letters” from

disclosure under the Act. 5 U.S.C. § 552(b)(5). As Justice

Scalia stated, “the most natural meaning of the phrase ‘intra-

agency memorandum’ is a memorandum that is addressed

both to and from employees of a single agency” and an

“inter-agency memorandum” is “a memorandum between

employees of two different agencies.” U.S. Dep’t of Justice

v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting).

These definitions leave no room for documents created by

those outside of an agency’s employment. To me, that is the

end of the inquiry and Exemption 5 doesn’t cover consultant

work product.

But finding Congress’s work inadequate, the majority

picks up its drafting pen and bestows on us a supposedly

better law. Contending that Congress actually adopted sub

54 ROJAS V. FAA

silentio a “consultant corollary” through the otherwise clear

language of Exemption 5, the majority now rules that the

government no longer needs to publicly disclose documents

made by private-sector consultants for executive agencies.

How does the majority justify this judicial rewrite? It’s

purpose all the way down. The majority creates an “escape

route from the prison of the text,” 1 by invoking Exemption

5’s supposed purpose and imposing a more faithful—as the

majority sees it—version of the law. But invocation of

purpose is nothing more than a “bald assertion of an

unspecified and hence unbounded judicial power to ignore

what the law says.” Guerrero-Lasprilla v. Barr, 140 S. Ct.

1062, 1077 (2020) (Thomas, J., dissenting) (quoting

Reading Law 343).

Because I do not believe that our limited judicial role

allows us to subvert the plain text of a law to our own sense

of its purpose, I respectfully dissent.

I.

APTMetrics, a private consulting firm independent of

the federal government, developed assessment tests for

hiring air traffic controllers for the Federal Aviation

Administration. Jorge Rojas, a rejected applicant, filed suit

under FOIA seeking three documents summarizing the

assessment tests created by APTMetrics. 2 The FAA sought

Antonin Scalia & Bryan Garner, Reading Law: The Interpretation

1

of Legal Texts 39 (2012) (“Reading Law”) (quoting Patrick Devlin, The

Judge 16 (1979)).

That the documents at issue were summaries rather than the test

2

themselves makes little difference under the plain meaning of Exemption

5. The exemption focuses on who created the memorandums or letters,

ROJAS V. FAA 55

to withhold the documents under Exemption 5. 3 But

APTMetrics, all agree, is not an agency under FOIA. See

5 U.S.C. § 551(1) (An “agency” must be an “authority of the

Government of the United States.”). Nor has the FAA

argued that APTMetrics consultants are so embedded within

its structure that they should be deemed FAA employees. 4

By its plain text then, Exemption 5 doesn’t protect

APTMetrics’s documents from disclosure. 5

not on their purpose or substance. But see Maj. Op. 18 n.3 (finding that

the documents were summaries to be critical).

3

Exemption 5 states, in full:

This section does not apply to matters that are—. . .

inter-agency or intra-agency memorandums or letters

that would not be available by law to a party other than

an agency in litigation with the agency, provided that

the deliberative process privilege shall not apply to

records created 25 years or more before the date on

which the records were requested[.]

5 U.S.C. § 552(b)(5). A document, thus, must satisfy two conditions to

qualify as a FOIA withholding exemption. See Dep’t of Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Since the

first condition—being an “intra-agency memorandum[]”—is not met in

this case, I do not address the second condition.

4

Rather, it is the opposite. The FAA purposefully held out

APTMetrics as “outside experts” who developed and independently

validated the assessment tests.

5

With respect, I believe Judge Collins’s interpretation of Exemption

5 suffers from two flaws. First, Judge Collins seems to view “intra-

agency memorandums” as merely a geographical condition—only

requiring that the memorandum “be intra-agency,” meaning within the

agency. See Collins Concurrence at 24 Setting aside that no one would

ever use the word “intra-agency” as a location, FOIA only applies if the

56 ROJAS V. FAA

The majority disputes none of this; yet, it concludes that

Exemption 5 applies nonetheless based on FOIA’s supposed

purpose and a desire to avoid the parade of horribles it

envisions if we were to give the provision its plain meaning.

The majority first divines from FOIA’s legislative history

that, despite the exemption’s limited scope, Congress’s

“purpose” was to broadly “shield[] privileged

communications from disclosure.” Maj. Op. 13. Second,

the majority fears that Exemption 5’s plain meaning would

chill communications between consultants and government

employees, resulting in “poorer” decisionmaking and

policies. Maj Op. 13 (quoting NLRB v. Sears, Roebuck &

document is within the agency in the first place. See Berry v. Dep’t of

Justice, 733 F.2d 1343, 1349 (9th Cir. 1984) (limiting “agency records”

to information “in the possession of an agency”). So this interpretation

effectively reads the term out of the statute. It’s also unclear how Judge

Collins’s location-based reading applies to “inter-agency”

memorandums—does it mean that the document is simultaneously

present in two agencies?

Second, Judge Collins believes Exemption 5’s second condition—

that the document would not be “available by law to a party”—means

that “intra-agency memorandum” refers to any document that falls

“within the agency’s litigation privileges.” See Collins Concurrence

at 26–27. Yet under this reading, “intra-agency” does no work at all.

And we turn grammar on its head if we treat a limiting dependent phrase,

like Exemption 5’s second condition, as totally eliminating the words to

which it is dependent.

At the end of the day, even if Judge Collins’s interpretation were

permissible, I continue to believe our duty is to “seek the best reading of

the statute by interpreting the words of the statute, taking account of the

context of the whole statute, and applying the agreed upon semantic

canons.” Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2121 (2016) (emphasis added). In this case, the

best and “most natural” reading of the phrase is that the “memorandums”

must be “to and from employees of a single agency.” Julian, 486 U.S.

at 18 n.1 (Scalia, J., dissenting).

ROJAS V. FAA 57

Co., 421 U.S. 132, 150 (1975)). Finally, the majority thinks

an ordinary-meaning interpretation of the provision would

potentially vitiate the attorney-work-product privilege of an

agency’s outside counsel. Id. at 15.

To accommodate these considerations, the majority

engrafts a “consultant corollary” to Exemption 5, whereby

any document may now be subject to exemption if drafted

by anyone “act[ing] in a capacity functionally equivalent to

that of an agency employee in creating the document.” Maj.

Op. 17.

II.

A.

In my view, we can never let perceived legislative

purpose eclipse the ordinary meaning of statutory text. If a

statute has a clear and natural reading, as is the case here, we

are stuck with that meaning—even if we believe Congress

might disagree with the outcome in a particular case. This

limited judicial role derives directly from the structure of our

Constitution and separation-of-powers principles.

Lawmaking is not a tidy affair. It can be a “clumsy,

inefficient, even unworkable” process. INS v. Chadha,

462 U.S. 919, 959 (1983). That is by design. See id. The

Constitution requires bicameralism—meaning that

legislation must pass both the House and Senate with their

respective rules and committees. Id. at 948–49 (citing

Article I of the Constitution). When Congress is at its full

complement, it consists of 535 legislators from various

backgrounds, regions, and beliefs, split into two chambers

with different constituencies and political interests. Id.

at 948–51; Apportionment Act of 1911, 37 Stat. 13, 13–14;

Apportionment Act of 1929, 46 Stat. 21, 26–27. The

58 ROJAS V. FAA

Constitution also requires presentment to the President, who

provides a separate “national perspective” to legislation.

Chadha, 462 U.S. at 948 (simplified).

Given this, I am skeptical that the majority could so

easily discern the legislative purpose behind the FOIA

exemptions. When we sit en banc, we’re only 11 judges—

yet, it is often difficult to find agreement among our small

number. It is doubtful that we could extract a common

purpose from a body almost 50 times as large, as the majority

purports to do.

Legislation, moreover, is often about the art of

compromise. Even when Congress unites to tackle a

national issue, “its Members may differ sharply on the means

for effectuating that intent.” Bd. of Governors of Fed.

Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374

(1986). Given the clash of purposes, interests, and ideas, “the

final language of the legislation may reflect hard-fought

compromises.” Id. After all, no legislation pursues its

purposes at all costs, so “it frustrates rather than effectuates

legislative intent simplistically to assume that whatever

furthers the statute’s primary objective must be the law.”

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633,

646–47 (1990) (simplified). In other words, when we allow

legislative purpose to override statutory text, we undo these

legislative compromises and recalibrate any balances struck

by Congress. And we do so without any limiting principle

except our own discretion. 6

6

To be clear, this doesn’t mean we cannot interpret statutes based

on their context. If contextual clues help give meaning to the words of

the statute, we may readily employ them. See Reading Law 153

(“Perhaps no interpretive fault is more common than the failure to follow

ROJAS V. FAA 59

More troublesome still is the majority’s reliance on

legislative history to determine Congress’s purpose in

enacting FOIA exemptions. See Maj. Op. 13–14 (quoting a

single Senate committee report to represent Congress’s

intent to encourage “frank discussion of legal and policy

matters”). But there are significant problems with using

legislative history to single out congressional intent. See

Fazaga v. FBI, 965 F.3d 1015, 1081–82 (9th Cir. 2020)

(Bumatay, J., dissenting from denial of rehearing en banc).

In any event, judges have found other congressional

purposes in FOIA, too. For one, the Supreme Court has said

that the “core purpose” of FOIA is to “contribut[e]

significantly to public understanding of the operations or

activities of the government.” U.S. Dep’t of Def. v. Fed.

Labor Relations Auth., 510 U.S. 487, 495 (1994)

(simplified). That is why the Court has continuously

reaffirmed that FOIA requires “full agency disclosure”

unless exempted under “clearly delineated statutory

language.” Id. (quoting Dep’t of Air Force v. Rose, 425 U.S.

352, 360–61 (1976)).

If purpose rather than text governs, which purpose

prevails here? While some legislators may have felt that

protecting government privileges was of paramount

importance, others may have believed that achieving

government transparency was more critical. As judges, we

the whole-text canon, which calls on the judicial interpreter to consider

the entire text, in view of its structure and of the physical and logical

relation of its many parts.”). For example, here, in FOIA, two other

exemptions specifically authorize the non-disclosure of documents

created by non-government employees. See 5 U.S.C. § 552(b)(4), (8).

That Congress did not include such express language in Exemption 5 is

strong contextual evidence against the so-called consultant corollary.

But what we can’t do is try to discern some overriding extratextual policy

purpose to then eclipse the plain meaning of statutes.

60 ROJAS V. FAA

are not well-situated to step into the shoes of our elected

representatives and select a purpose to guide our

interpretation. See Diamond v. Chakrabarty, 447 U.S. 303,

317 (1980) (“[T]he balancing of competing values and

interests” requires “the kind of investigation, examination,

and study that legislative bodies can provide and courts

cannot.”). That is exactly what the majority does, however,

by prophesying what Congress would have enacted if only it

better understood its own purposes. See, e.g., Maj. Op. 14

(“A Congress whose aim was to further the purposes just

discussed would not have limited Exemption 5’s coverage to

communications authored by agency employees.”).

Indeed, Exemption 5’s limitation to inter- and intra-

agency materials may have been the compromise between

Congress’s dueling purposes. By ignoring its plain meaning,

we subvert any legislative compromise baked into its

enacted text. Furthermore, it’s not clear how else Congress

could have expressed its rejection of the consultant

corollary. After all, the language of Exemption 5 does

precisely that—it leaves no room for consultant documents

to be exempted. But that wasn’t enough for the majority.

Perhaps, a congressional amendment to Exemption 5—“and

we really mean it”—would suffice.

Most disconcerting about the approach articulated by the

majority is the threat to the separation of powers. Any

student of the Constitution can recite that Congress makes

the laws and judges interpret them. See Patchak v. Zinke,

138 S. Ct. 897, 904 (2018) (“To the legislative department

has been committed the duty of making laws; . . . and to the

judiciary the duty of interpreting and applying them[.]”). By

reading a statute not by its text, but its purpose, judges come

dangerously close to legislating—except without the

political accountability.

ROJAS V. FAA 61

If there was any doubt about this concern, look no further

than the majority’s test for when a document meets the

“consultant corollary” exemption. It states that any

document drafted by anyone “act[ing] in a capacity

functionally equivalent to that of an agency employee in

creating the document” is subject to the protection of

Exemption 5. Maj. Op. 17. So instead of the straightforward

language used in Exemption 5, citizens must now parse the

majority’s newfangled, multi-factor test 7 to gain the

disclosure of government documents. While this test might

make normative sense, and congressional staffers might

admire its drafting, none of it is derived from the text of

Exemption 5 or frankly any other legislation. We simply

made it up. Cf. California v. EPA, 978 F.3d 708, 718 (9th

Cir. 2020) (“There is a word for picking the law that

determines a party’s future conduct: legislation[.]”)

(emphasis omitted).

B.

The same goes for the majority’s concerns for the

consequences of interpreting Exemption 5 according to its

text. We don’t supersede or amend congressional

enactments simply because we (or our belief that Congress

would) disagree with the outcome in a particular case. Our

job requires neutrality to a statute’s consequences. See

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576

(1982) (“The remedy for any dissatisfaction with the results

in particular cases lies with Congress and not with th[e]

7

As I understand it, the majority’s consultant corollary test requires

(1) establishing what an “agency employee” does for a particular agency;

and (2) determining whether the consultant acted in a “functionally

equivalent” capacity. No doubt further litigation will be required to

refine the meaning of each step and establish the prongs for each factor

and, of course, the subprongs to the prongs for each factor.

62 ROJAS V. FAA

[c]ourt[s].”). We don’t reverse engineer our interpretation

of a law by surveying the outcomes it produces and then

selecting the reading that reaches our favored results. That

gets it backwards. See Baker Botts LLP v. ASARCO LLC,

576 U.S. 121, 134 (2015) (A “harsh outcome” does not

justify deviating from “the import of Congress’ chosen

words.”). So it’s inappropriate to create a “consultant

corollary” based on fear that not doing so would discourage

outside consultants from working with agencies. See Maj.

Op. 14.

For what it’s worth, the majority’s overwrought concern

for the protection of an agency’s outside counsel’s work

product is also a bit of a red herring. See Maj. Op. 15. First,

that is not this case. APTMetrics is not outside counsel and

no one suggests it is the functional equivalent of one. If such

a case arises in the future, we can decide whether the

attorney-client privilege is so sacrosanct that we must

override FOIA’s statutory text; but there is certainly no

reason to do that here. Second, I am not so sure that such a

case would arise. The FAA is not like a normal client. It

can’t just retain any lawyer of its choice. It is, after all, an

Executive agency. 49 U.S.C. § 106. It has a cadre of

lawyers in its chief counsel’s office. 8 It sits within the

Department of Transportation with its own team of lawyers.

49 U.S.C. § 106(a). And, by law, the Department of Justice

provides it legal counsel and must represent it in all

litigation. See 28 U.S.C. §§ 514, 516; 5 U.S.C. § 3106. So,

I seriously doubt that the need to protect privileged

communications of outside counsel is so grave and so stark

8

See Office of the Chief Counsel, Federal Aviation Administration,

https://www.faa.gov/about/office_org/headquarters_offices/agc/

(Sept. 19, 2017, 2:36 PM).

ROJAS V. FAA 63

that we must discard the plain reading of the text enacted by

Congress. 9

C.

I acknowledge that Justice Scalia, after analyzing the

“natural meaning” of Exemption 5, went on to consider

FOIA’s purpose and endorse a consultant corollary. Julian,

486 U.S. 1, 18 n.1 (Scalia, J., dissenting). In my view, the

principles that Justice Scalia spent a lifetime advocating—

textualism, separation of powers, deference to the political

branches 10—are more important than any one of his

individual decisions, let alone dicta buried in a footnote of a

dissent he authored more than 30 years ago. That all judges,

to varying degrees, adhere to the plain meaning of statutory

text is Justice Scalia’s lasting legacy. It is more faithful to

that legacy to maintain that the plain meaning of the text

must prevail here.

9

Judge Collins contends that we must confront the attorney-client

issue here because another agency—the FDIC—may potentially need to

rely on outside attorneys. See Collins Concurrence 30–31. I think this

example only proves my point. Unknown issues may pop up in such a

situation. For example, the FDIC guidelines governing outside counsel

cited by Judge Collins may impact our analysis. See id. at 30–31. We

also don’t know if these hypothetical outside counsel are hired as special

Government employees. See 18 U.S.C. § 2020(a). Or if other federal

laws, such as conflicts and ethics requirements, apply to outside counsel.

Point being, we don’t need to decide this question in this case.

10

See, e.g., Neil M. Gorsuch, Of Lions and Bears, Judges and

Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev.

905, 912 (2016).

64 ROJAS V. FAA

III.

I concur with the majority that the FAA was not required

to search APTMetrics’ records for responsive documents.

But, as Judge Ikuta explains in her well-reasoned dissent, the

majority was also incorrect that FAA’s search was

inadequate. Most fundamentally, however, because a

perceived legislative purpose doesn’t eclipse the natural

meaning of statutory text, I respectfully dissent from the

judgment of the court.