Amicus Curiae Brief — Jorge Alejandro Rojas, Petitioner v. Federal Aviation Administration

No. 21-133

In the Supreme Court of the United States

________________

JORGE ALEJANDRO ROJAS,

Petitioner,

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

________________

Ilya Shapiro

William M. Yeatman*

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar under

D.C. App. R. 46-A. Supervised by

D.C. Bar member.

September 1, 2021

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

i

QUESTION PRESENTED

Whether the Ninth Circuit, in a sharply divided en

banc decision, erred by holding that “intra-agency

memorandums or letters” in FOIA’s Exemption 5 encompasses documents prepared by a private, outside

consultant.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE............................ 2

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 2

ARGUMENT ............................................................... 5

THE COURT SHOULD TAKE THIS CASE TO

RESTORE FOIA’S ESSENTIAL ROLE IN

ENSURING THAT FEDERAL AGENCIES AND

THEIR PRIVATE CONSULTANTS REMAIN

ACCOUNTABLE TO THE AMERICAN PEOPLE ... 5

A. Federal agencies have never been more

powerful,

and

less

accountable—

especially when they work through

private consultants. ...................................... 5

B. FOIA plays an essential role in providing

oversight and accountability for federal

agencies and their armies of private

consultants.................................................. 10

C. The atextual “consultant corollary”

cripples

critical

oversight

and

accountability for agencies’ private

consultants.................................................. 12

CONCLUSION ......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984) ........................... 8

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013).................................................. 6

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019)............................................ 15

Dep’t of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001) .............. 4, 10, 17

Dep’t of Justice v. Reporters Comm. for

Freedom of Press, 489 U.S. 749 (1989) .................. 10

Dep’t of Justice v. Tax Analysts,

492 U.S. 136 (1989)................................................ 12

Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976) . 10

FBI v. Abramson, 456 U.S. 615 (1982) .................... 11

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019).............................................. 5

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) ................. 2, 6, 9

Gundy v. United States, 139 S. Ct. 2116 (2019) ........ 7

Milner v. Dep’t of the Navy,

562 U.S. 562 (2011)................................................ 11

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978)................................................ 10

Oklahoma v. EPA,

723 F.3d 1201 (10th Cir. 2013)............................ 8, 9

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) ....... 5

iv

Statutes

5 U.S.C. § 551(1) ....................................................... 11

5 U.S.C. § 552(b)(4)................................................... 11

5 U.S.C. § 552(b)(5)..................................................... 3

5 U.S.C. § 552(b)(8)................................................... 11

5 U.S.C. § 552(f)(1) ................................................... 11

Clean Air Act, 42 U.S.C. § 110 ................................... 8

Freedom of Information Act, Pub. L. 89-554,

80 Stat. 383 (1966) ................................................... 2

Pub. L. 104-231 (1996) ............................................. 18

Pub. L. 107-306 (2002) ............................................. 18

Pub. L. 110-175 (2007) ............................................. 18

Pub. L. 111-83 (2009) ............................................... 18

Pub. L. 114-185 (2016) ............................................. 18

Pub. L. 93-502 (1974) ............................................... 17

Pub. L. 94-409 (1976) ............................................... 17

Pub. L. 95-454 (1978) ............................................... 17

Pub. L. 98-620 (1984) ............................................... 17

Pub. L. 99-570 (1986) ............................................... 18

Regulations

48 C.F.R. § 9.406-2 ..................................................... 9

48 C.F.R. § 9.407-2 ..................................................... 9

v

Other Authorities

A Review of the FAA’s Air Traffic Controller

Hiring, Staffing, an Training Plans,

Hearing before the H. Subcomm. on

Aviation, 114th Cong., 2d Sess. (2016) ................. 13

Br. of Amici Curiae Freedom of Information

Act and First Amendment Scholars in Support of Respondent, at Parts I.B.–C, Food

Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) (No. 18-481) ...................... 18

Dept. of Justice, Memo. from Quin Shea to

Bob Saloshin, Exemption 5, “Chilling

Effect” and Openness in Government

(Nov. 7, 1977) ......................................................... 17

Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245, 2332 (2001) ............. 6, 9, 10

Federalist No. 51 (James Madison) ........................... 2

H.R. Rep. No. 114- 391 (2016) .................................. 17

Harold L. Cross, The People’s Right to Know

(1977) ...................................................................... 10

Hearing on “Examining the Federal

Regulatory System to Improve

Accountability, Transparency and

Integrity” before the Senate Comm. on the

Judiciary, 114th Cong., Sess. 1 (2015) .................... 5

House Comm. on Gov't Reform-Minority

Staff, Waste, Fraud, and Abuse in

Hurricane Katrina Contracts, 109th Cong.,

2d Sess. (2006) ....................................................... 13

vi

Jody Freeman & Martha Minow eds.,

Government by Contract: Outsourcing and

American Democracy (2009) .................................... 7

John J. Dilulio, Jr. et al., Improving

Government Performance: An Owner’s

Manual (1993) .......................................................... 7

John J. Dilulio, Jr., Response Government by

Proxy: A Faithful Overview,

116 Harv. L. Rev. 1271 (2003) ............................. 7, 8

Jon D. Michaels, Privatization's Progeny,

101 Geo. L.J. 1023 (2013) ........................................ 7

Letter from Jennifer Piel, Dep’t of

Commerce, to Laura Iheanachor, CREW

(July 26, 2021)........................................................ 15

Michael Gerson, “Taming Big Government by

Proxy,” Wash. Post, Feb. 16, 2015 ........................... 7

Michael Wines, “Deceased G.O.P. Strategists’

Hard Drives Add New Details on the

Census Citizenship Question,” N.Y. Times,

May 30, 2019 .......................................................... 15

Nicholas Bagley, Bedside Bureaucrats: Why

Medicare Reform Hasn’t Worked,

101 Geo. L.J. 519 (2013) .......................................... 8

Paul C. Light, The Government Industrial

Complex: The True Size of the Federal

Government, 1984-2018 (2019)................................ 7

Paul C. Light, The True Size of Government:

Tracking Washington’s Blended Workforce,

Volcker Alliance Issue Paper (2017) ....................... 7

S. Rep. No. 89-813 (1965) .......................................... 9

1

INTEREST OF AMICUS CURIAE

1

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty,

free markets, and limited government. Cato’s Robert

A. Levy Center for Constitutional Studies was established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, and issues the annual

Cato Supreme Court Review.

This case concerns Cato because it concerns the

critical role played by the Freedom of Information Act

in providing transparency and public accountability in

agency decision-making, even when—and especially

when—those decisions are outsourced to unaccountable private contractors.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“[T]he great difficulty lies in this: you must first enable the government to control the governed; and in

the next place oblige it to control itself.” See Federalist

No. 51, 322 (James Madison) (Clinton Rossiter ed.,

1961). This demand for governmental self-control

must be addressed in any viable system of self-government. And in the American system, the Framers

sought to address it by baking multiple mechanisms of

1

Counsel for all parties received timely notice of amicus’s intent to file this brief and have consented thereto. No counsel for

any party authored this brief in whole or in part, and no person

or entity other than amicus or its members made a monetary

contribution to fund its preparation or submission.

2

accountability into our constitutional structure, from

the rules we follow in choosing our elected representatives to the system of checks and balances by which

individual liberty is protected by “ambition being

made to counteract ambition.” Id. These systems were

all designed to force government officials to remain accountable to the governed and enlist every government official in holding others in check.

The growth of the administrative state has tested

the durability of those constitutional accountability

systems. As administrative agencies have grown in

size and power, assuming ever-growing control over

Americans’ daily lives, the need for accountability has

assumed greater importance. But the agencies themselves have become less accountable.

Yet even as the dangers from the administrative

state have challenged the Constitution’s ability to

handle them, Congress has stepped in with a statutory

accountability assist, in the form of the Freedom of Information Act, Pub. L. 89-554, 80 Stat. 383 (1966).

FOIA provides a measure of assurance that the American government continues to do business as the

American public expects, by making use of the Framers’ insight that “‘a dependence on the people’ would

be the ‘primary controul on the government.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561

U.S. 477, 501 (2010) (quoting Federalist No. 51)

(cleaned up). FOIA arms private citizens with the best

tool for them to conduct their own oversight: information. That informational access allows everyday

Americans, nonprofits, and the press to require disclosure of officials’ dealings, ensuring transparency in

public policy and accountability for policymakers.

3

Protecting FOIA is thus critical to ensure that the

American people can keep their government officials

in check. And FOIA is doubly important in ensuring

the government’s private consultants keep properly focused on the people’s business.

Yet the court below hobbled FOIA’s ability to ensure transparency and accountability in an area

where they are needed most: the government’s interactions with its outside private consultants. The

threat to individual liberty presented by the administrative state has only accelerated as many aspects of

governmental administration within agencies have

been outsourced to private contractors. That shift adds

another bureaucratic layer between regulators and

those charged with regulating them and puts essential

government functions in the hands of those whose personal interests might be at odds with missions of the

agencies they supplement.

The court held that FOIA exemption 5, which prevents disclosure of “inter-agency and intra-agency”

communications that would be exempt from litigation

discovery, covers private consultants outside the

agency. 5 U.S.C. § 552(b)(5). The court recognized that

this was not “the most natural” reading of the text,”

Pet. App. 13a, which limited exemption 5’s protections

to “intra-agency” communications, not those with

agency outsiders. Yet the court decided that exemption 5’s text ought to nonetheless be engrafted with an

a-textual “consultant corollary” that brings agencies’

communications with outside consultants within the

protection provided by FOIA Exemption 5.

This Court cast doubt on this “consultant corollary”

in Dep’t of Interior v. Klamath Water Users Protective

4

Ass’n, 532 U.S. 1, 9 (2001), which declared that “neither the terms of [exemption 5] nor the statutory definitions say anything about communications with outsiders,” and prohibited exemption 5 from being applied to “communications to or from an interested

party seeking a Government benefit at the expense of

other applicants.” Klamath thus recognized that exemption 5’s justifications ended at the agency’s edge—

even though it stopped short of overruling the “consultant corollary” entirely.

Now the Court needs to step in to prevent the “consultant corollary” from completely overriding the text

that Congress wrote. The lower courts may have justified the rule by noting the potential costs of allowing

disclosure, including potential chilling of open dialogue during agency deliberations and issues surrounding attorney-client privilege. But Congress has

already weighed those costs and still considered disclosure the better option. The lower courts’ decision to

substitute their own judgment for Congress and elevate intent over statutory text presents a “threat to

the separation of powers” and a serious usurpation of

the court’s “limited judicial role.” Pet. App. 62a, 66a.

It is up to this Court to put a stop to it by granting the

petition, resolving the split among the courts of appeals, and getting rid of the “consultant corollary” once

and for all.

5

ARGUMENT

THE COURT SHOULD TAKE THIS CASE TO

RESTORE FOIA’S ESSENTIAL ROLE IN

ENSURING THAT FEDERAL AGENCIES AND

THEIR PRIVATE CONSULTANTS REMAIN

ACCOUNTABLE TO THE AMERICAN PEOPLE

The “consultant corollary” was birthed in 1970s

dicta from a D.C. Circuit opinion, Soucie v. David, 448

F.2d 1067, 1078 n.44 (D.C. Cir. 1971), during an era

where such “text-light,” Milner v. Department of Navy,

562 U.S. 562, 573 (2011), readings of FOIA exemptions

were common. And it has passed unexamined from circuit to circuit ever since. But this “relic from a ‘bygone

era of statutory construction,’” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019), cannot

be squared with FOIA’s plain text. And if this atextual

expansion of exemption 5 is left standing, it will deprive the public of a sorely needed mechanism to provide oversight where it is needed most: in the federal

agencies’ interactions with their private consultants.

A. Federal agencies have never been more

powerful, and less accountable—especially

when

they

work

through

private

consultants.

1. The modern administrative state has gradually

outgrown the Constitution’s mechanisms for controlling it. It has grown massive in size. Hearing on “Examining the Federal Regulatory System to Improve

Accountability, Transparency and Integrity” before

the Senate Comm. on the Judiciary, 114th Cong., Sess.

1 (2015) (statement of Senator Grassley) (noting the

existence of over “430 departments, agencies, and sub-

6

agencies in the federal government”). And it has

grown vast in power, accreting power from all the major branches of the government. “[A]s a practical matter [agencies] exercise legislative power, by promulgating regulations with the force of law; executive

power, by policing compliance with those regulations;

and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have

violated their rules.” City of Arlington, Tex. v. FCC,

569 U.S. 290, 313–14 (2013) (Roberts, C.J., dissenting). And this aggregation of power has made federal

agencies a singular force on the American landscape,

“‘wield[ing[ vast power and touch[ing] almost every aspect of daily life.’” Free Enter. Fund, 561 U.S. at 499.

2. But even as the administrative state’s size and

authority have grown, the mechanisms capable of

holding it in check have withered. As the result of both

congressional policymaking and their sheer size, federal agencies enjoy such a “significant degree of independence” City of Arlington, 569 U.S. at 314 (Roberts,

C.J., dissenting), that they risk “slip[ping] from the

Executive’s control, and thus from that of the people.”

Free Enter. Fund, 561 U.S. at 49. “[T]he bureaucratic

form” of the administrative state—“in its proportions,

its reach, and its distance”—has thus proven “impervious to full public understanding, much less control.”

Elena Kagan, Presidential Administration, 114 Harv.

L. Rev. 2245, 2332 (2001).

The coordinate branches are faring no better at

controlling federal agencies than the Executive.

“[J]udicial oversight” is lacking. City of Arlington, 569

U.S. at 314 (Roberts, C.J., dissenting) And Congress

more often finds itself in the role of agency-power

7

enabler than constrainer, often deeming it convenient

to duck the “ramifications that come with hard decisionmaking” by “announcing vague aspirations and

then assigning others”—like administrative agencies—“the responsibility of . . . realiz[ing] its goals.”

Gundy v. United States, 139 S. Ct. 2116, 2133 (2019)

(Gorsuch, J., dissenting). Ambition is thus being made

to facilitate ambition.

3. The dangers of the administrative state have

only grown as the federal government has outsourced

the administration of many programs to private contractors—including individuals, businesses, and

“large social service nonprofits.” Michael Gerson,

“Taming Big Government by Proxy,” Wash. Post, Feb.

16, 2015, https://wapo.st/3BhvasW. Now “millions of

employees show up for work every day to do work once

performed by federal employees.” Paul C. Light, The

Government Industrial Complex: The True Size of the

Federal Government, 1984-2018, 88 (2019). Those private consultants now comprise over 40 percent of the

federal workforce. See Paul C. Light, The True Size of

Government: Tracking Washington’s Blended Workforce, Volcker Alliance Issue Paper (2017). And they

have taken over huge swaths of the responsibilities involved in running the federal government. Private

contracting is “now ubiquitous in military combat, . . .

rule promulgation, environmental policymaking,

prison administration, and public-benefits determinations.” Jon D. Michaels, Privatization's Progeny, 101

Geo. L.J. 1023, 1025 (2013); see also, e.g., Jody Freeman & Martha Minow, eds., Government by Contract:

Outsourcing and American Democracy (2009).

8

So significant is this outsourcing trend that many

agencies today serve as little more than “financier, arranger, and overseer” of outside contractors. John J.

Dilulio et al., Improving Government Performance: An

Owner’s Manual 32 (1993). The U.S. Department of

Health and Human Services (HHS), for example, has

eleven operating divisions, a nearly $500 billion

budget, and over 65,000 employees whose main work

is framing, processing, and monitoring literally hundreds of grant programs featuring literally thousands

of nongovernmental grantees.” John J. Dilulio, Jr., Response Government by Proxy: A Faithful Overview, 116

Harv. L. Rev. 1271, 1272–73 (2003). HHS’s contractors

have also taken over much of the work in making Medicaid coverage decisions and providing services to program beneficiaries. Nicholas Bagley, Bedside Bureaucrats: Why Medicare Reform Hasn’t Worked, 101 Geo.

L.J. 519, 527–528, 532 (2013).

Outsourcing to private contractors is nearly as

ubiquitous in the EPA. That agency employs an army

of “private, for-profit contractors” to help with technical analysis and even make “policy decisions.” Dilulio, Response Government by Proxy, supra at 1275. And

these consultants’ determinations are often granted

the same deference as enjoyed by the agency itself. For

instance, in Oklahoma v. EPA, the Tenth Circuit

granted deference under Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837 (1984) to determinations made by one of EPA’s private consultants in

upholding an EPA-proposed rule that would impose

sulfur-dioxide emission limits on certain coal-fired

power plants under section the Clean Air Act, 42

U.S.C. § 110. 723 F.3d 1201, 1204, 1205, 1207 (10th

Cir. 2013). Faced with the competing arguments of the

9

“parties’ experts” on the “suitability and costs” of installing “scrubbers” to bring sulfur-dioxide levels

down to permissible limits, the court gave “deference

to the EPA,” as it involved a “technical or scientific

matter[] within the agency’s area of expertise.” Id. at

1206, 1216–17. Accordingly, many private contractors

take part in vital governmental functions, and often

enjoy the same governmental authority as agency personnel themselves.

4. Yet these private consultants and contractors

are usually far less accountable to the executive than

their counterparts inside the agency. Their relationship to the agency is usually attenuated and circumstantial. And the chief means that agency officials

might use keep those contractors “accountable—by removing them from office, if necessary,” is severely

blunted. Free Enter. Fund, 561 U.S. at 483. Absent debarment for some serious infraction under the Federal

Acquisition Regulations, 48 C.F.R. § 9.406-2(a)(5) &

(c); 48 C.F.R. § 9.407-2(c) the worst agency officials can

do to a consultant is threaten cancellation of their contract—often one of many the consultant possesses.

Private consultants also sometimes possess private

agendas that put them at odds with agency missions.

Many work for for-profit entities that direct their energies more toward obtaining profit than serving the

public good. And some may suffer divided loyalties as

the result of dividing their time between consulting for

regulators and regulated industries. Accordingly, the

relationships between federal agencies and their contractors is one of the areas of government where the

need for oversight is greatest, but the normal mechanisms for governmental oversight are lacking.

10

B. FOIA plays an essential role in providing

oversight and accountability for federal

agencies and their armies of private

consultants.

1. FOIA plays an irreplaceable role in providing accountability in agencies’ dealings with their private

consultants—by making them disclosable to the public. FOIA is Congress’s tool to fulfill “the need for

transparency,” Kagan, supra at 2332, created by the

“the very vastness of our Government and its myriad

of agencies,” S. Rep. No. 89-813, at 3 (1965). The Act

serves “to ensure an informed citizenry, vital to the

functioning of a democratic society.” NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978). It arms

the people with information—sometimes pried from

“unwilling officials.” Dep’t of the Air Force v. Rose, 425

U.S. 352, 360–61 (1976). And thus armed, the public

can open the “black box” of government bureaucracy,

“the places where exercises of coercive power are most

unfathomable and thus most threatening.” Kagan, supra at 2332. Citizens can expose dark places within

the government to “the sharp eye of public scrutiny,” Dep’t of Justice v. Reporters Comm. for Freedom

of Press, 489 U.S. 749, 779 (1989), enabling the people

to serve as a “check against corruption and hold the

governors accountable to the governed.” Robbins Tire

& Rubber Co., 437 U.S. at 242.

FOIA is thus governed by the ethos that “Public

Business is the public’s business,” Harold L. Cross,

The People’s Right to Know xiii (1977), and “disclosure,

not secrecy, is the dominant objective of the Act.” Klamath, 532 U.S. at 8. Consistent with this objective,

“FOIA . . . mandates that an agency disclose records

11

on request, unless they fall within one of nine exemptions, [which] are ‘explicitly made exclusive,’ and must

be ‘narrowly construed,’ ” Milner v. Dep’t of the Navy,

562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410

U.S. 73, 79 (1973) and FBI v. Abramson, 456 U.S. 615,

630 (1982)).

2. And in FOIA, Congress demonstrated a clear intent to extend its mandate of accountability and transparency to agencies’ communications with their outside consultants, because those communications generally fall outside FOIA exemptions. An agency’s communications with private contractors might become

shielded from disclosure when those consultants share

information covered by Exemption 4, which concerns

records containing “trade secrets and commercial or financial information” that is “privileged or confidential.” 5 U.S.C. § 552(b)(4). They might also enjoy protection under Exemption 8 if the communications include 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.” 5

U.S.C. § 552(b)(8) (emphasis added).

But communications between agencies and contractors will not be covered by exemption 5. That exemption covers “inter-agency” and “intra-agency” communications—i.e., communications between and

among government agencies. An “agency” is an “authority of the Government of the United States.” Pet.

App. 83a (quoting 5 U.S.C. §§ 551(1), 552(f)(1)). A contractor is thus “not a government agency” under the

statute’s definition, so documents exchanged with it

12

cannot be “inter-agency” or “intra-agency” records.

Pet. App. 82a, 91a. It really is that simple.

C. The atextual “consultant corollary” cripples

critical oversight and accountability for

agencies’ private consultants.

Shielding agency communications with contractors

under the “consultant corollary” prevents the public

from accessing information that Congress thought

should be disclosed. And doing so cripples the oversight and accountability FOIA meant to provide, because Congress had numerous reasons for focusing on

the interactions between agencies and their private

consultants and making them available to the public.

1. For one thing, communications between agencies and consultants may be the only information the

public can obtain about agencies’ private consultants.

Those private consultants’ internal deliberations cannot be examined via FOIA, because they do not involve

interactions with government agencies and therefore

generate no “agency record” within the agency’s “control” or “possession” that would be subject to FOIA disclosure. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

144–45 (1989). Only when private contractors communicate with agencies will an agency record be generated that the public could obtain, making these communications the only means by which the public can

examine whether these private consultants are doing

their jobs properly.

Denying the public access to these records would

therefore prevent citizens from obtaining answers to

vital questions about how outsourcing is transforming

government, whether essential functions are being

13

performed by competent consultants, whether those

consultants are capable of delivering work as promised, whether the work they deliver is accurate and

grounded in sound science, or whether it is systemically biased, infringing individual rights, or even doing the job it is intended to do. Preventing access to

this information will also deny the public information

about whether agencies are providing proper oversight to those consultants.

The answers to these questions can be life-altering—as FEMA demonstrated during Katrina, when

its private contractors systematically failed to deliver

as promised, and the costs were measured in incalculable pain and human suffering. See generally House

Comm. on Gov't Reform-Minority Staff, Waste, Fraud,

and Abuse in Hurricane Katrina Contracts, 109th

Cong., 2d Sess. (2006).

This is also why access to the records at the center

of this case is so critical. They concern a test that determines whether people who have invested time,

money, and effort into becoming Air-Traffic Controllers will be permitted to get a job in their chosen field.

That test should be considered legitimate only if it can

survive rigorous public scrutiny and can be “statistically shown to predict workplace success.” (Pet. at 7)

But the FAA outsourced the creation of the test to private consultants, Pet. App. 8a, and those consultants

provided the only “independent” evaluation of the

test’s validity—a validation that the FAA used to defend the test to Congress, to Rojas, and the public at

large. See A Review of the FAA’s Air Traffic Controller

Hiring, Staffing, and Training Plans, Hearing before

the H. Subcomm. On Aviation, 114th Cong., 2d Sess.,

14

21 (2016) (Statement of Rep. LoBiondo), https://tinyurl.com/yyd3cw35; see also Pet. App. 51a.

Without being able to uncover the FAA’s communications with the consultants who created and validated the test—including the summaries of the tests

and the test validation documents that Rojas sought,

Pet. App 75a-76a—there is no way for anyone outside

the government to determine whether that validation

was ever performed, what the validation process entailed, or indeed, whether the test has any proven statistical validity at all. The “consultant corollary”

should not be permitted to prevent the public from investigating these vital questions.

2. Public access to agency communications with

private consultants is also critical in uncovering fraud,

corruption, and waste. Public sector contractors frequently obtain work through lobbying and influencepeddling as much as through technical expertise. That

raises risks of corruption, undue influence, and even

fraud. Agency officials may be unable or unwilling to

discover these abuses, since they might be the victim—or an accomplice. It is thus vital that the public

be permitted to examine the interactions between government officials and contractors, because those interactions are where the corruption, influence-peddling,

and fraud occurs.

3. Finally, shielding agencies’ communications

with private contractors under the “consultant corollary” could provide a perverse incentive for agencies to

outsource their dirtiest work to contractors—things

that agencies know will not survive legal or public

scrutiny. Indeed, such dark outsourcing is already occurring, as the Trump Administration’s unsuccessful

15

attempt to add a citizenship question to the U.S. Census illustrates in vivid detail. The Court invalidated

that effort based on something it found to be missing

from the administrative record: a line of reasoning

that could match up “the decision the Secretary” of

Commerce Wilber Ross made to add the citizenship

question and “the rationale he provided” for doing so—

protecting the Voting Rights Act—which “seem[ed] to

have been contrived.” Dep’t of Commerce v. New York,

139 S. Ct. 2551, 2556 (2019).

But quite apart from the issue of whether the absence in the record of any proper motive for adding the

citizenship question should have disqualified that

question, the Commerce Department also possessed

an improper motive that it kept outside the administrative record. The Department hired an outside consultant, Thomas Hofeller, to determine if Republicans

could gain partisan advantage if the question was

added. Using Texas as an example, Hofeller concluded

that adding a citizenship question “would be advantageous to Republicans and non-Hispanic whites, and

would dilute the political power of the state’s Hispanics.” Michael Wines, “Deceased G.O.P. Strategists’

Hard Drives Add New Details on the Census Citizenship Question,” N.Y. Times, May 30, 2019,

https://perma.cc/9EUP-PAQ8. It was this chance for

partisan advantage, not any concern for protecting the

VRA, that drove the decision to change the census.

The most alarming aspect of this story is that the

only reason Hofeller’s studies and communications

were ever made public was because his daughter went

through his hard drive after he passed away. Id. They

were never produced in discovery. And the Commerce

16

Department has shielded at least some of the communications between Hofeller and the Department from

FOIA disclosure, asserting that they fall under Exemption 5. See Letter from Jennifer Piel, Dep’t of Commerce, to Laura Iheanachor, CREW (July 26, 2021),

https://bit.ly/2WuELxm. If the a-textual “consultant

corollary” remains law, then even more dark outsourcing will be encouraged. And that is a compelling reason why it should not be left standing.

5. Furthermore, none of the policy reasons courts

have offered for the “consultant corollary” serve to justify its judicial annexation to the statute.

Courts have noted that one purpose of exemption 5

was to encourage a full and frank exchange of ideas

during the agency policymaking process. See Pet. App.

14a. But Congress was very specific that its concern

for the deliberative process extended only to the

agency policymaking process. In the text of Exemption

5, Congress distinguished between the deliberative

processes it sought to facilitate and shield from disclosure and those it wanted to be made public. And Congress put discussions between agencies and private

consultants squarely in the latter camp, deeming the

public interest in exposing those interactions to sunlight to be worth any risk to the deliberative process

that might result. This interest in fostering limited deliberation provides no general invitation for courts to

decide for themselves which deliberations to facilitate,

nor does it provide allowance for judges to bring them

into the protections of the statute by fiat. The deliberation-fostering justification for shielding communications under Exemption 5 ends at the agency’s edge.

17

The notion that the “consultant corollary” is needed

to protect attorney-client privilege or outside attorney’s work product fares no better. Br. 27-28, Pet. App.

14a, 31a-32a. This concern is not only speculative, because few agencies hire outside lawyers, Pet. 29 (citing

Pet. App. 68a n.10), it also leads to an overbroad remedy, because Exemption 5 covers far more than just

privileged documents. It covers anything unobtainable

in discovery, Klamath, 532 U.S. at 8.

Changing Exemption 5 to address concerns about

privilege is also largely unnecessary, since Exemption

4 already prevents disclosure of confidential information protected by privilege. But worst of all, judicial

concerns over privilege fail to justify the “consultant

corollary” because such concerns belong to Congress.

It is Congress’s job to weigh the concerns over privilege against the public’s interest in disclosure. And

Congress gave every indication that it believed “an attorney for the Government, paid from public funds,

should be just as accountable to the public which pays

his or her salary as should any other category of wellpaid public servant.” Dept. of Justice, Memo. from

Quin Shea to Bob Saloshin, Exemption 5, “Chilling Effect” and Openness in Government 2 (Nov. 7, 1977). If

Congress deems the benefits of disclosure to outweigh

the risks, the courts are obliged to respect Congress’s

judgment rather than rewrite Congress’s statute. The

Court should intervene to ensure that they do so.

If invalidating the “consultant corollary” forces

agencies to be more circumspect about whether to hire

outside counsel, and agencies will they communicate

with them, then so be it. Those functions can be

brought back inside the agency. And if Congress wants

18

to reinstitute the corollary or wishes to provide an exception that specifically addresses privilege and workproduct issues concerning outside attorneys, it can

certainly do that too.

Congress has shown great willingness to revisit

FOIA “to better balance the public’s right to know,”

H.R. Rep. No. 114-391, 8 (2016), having amended statute 10 different times since its enactment, 2 and having

held scores more hearings and compiled countless

more reports. See Br. of Amici Curiae Freedom of Information Act and First Amendment Scholars in Support of Respondent, at Parts I.B.–C, Food Mktg. Inst.

v. Argus Leader Media, 139 S. Ct. 2356 (2019) (No. 18481).

The statute that Congress could—and likely

would—draft in response to this case would enjoy

greater constitutional legitimacy than the lower

courts’ decisions expanding Exemption 5. And a statutory remedy to privilege concerns will also prove better capable of achieving the proper balance for an exemption than judges wielding blunt weapon of appellate review to hammer an atextual and overbroad

“consultant corollary” into the statute. Accordingly, if

2

See Pub. L. 93-502 §§ 1-3, 88 Stat. 1561-64 (1974); Pub. L.

94-409, § 5(b), 90 Stat. 1247 (1976); Pub. L. 95-454, tit. IX, §

906(a)(10), 92 Stat. 1225 (1978); Pub. L. 98-620, tit. IV, Subtitle

A, § 402(2), 98 Stat. 3357 (1984); Pub. L. 99-570, tit. I, subtit. N,

§§ 1802, 1803, 100 Stat. 3207, 3207 (1986); Pub. L. 104-231, §§ 311, 110 Stat. 3049 (1996); Pub. L. 107-306, tit. III, subtit. B, §

312, 116 Stat. 2390 (2002); Pub. L. 110-175, §§ 3, 4(a), 5, 6(a)(1),

(b)(1), 7(a), 840(a), 12, 121 Stat. 2525, 2526, 2527, 2530

(2007); Pub. L. 111-83, tit. V, § 564(b), 123 Stat. 2184 (2009); Pub.

L. 114-185, § 2, 130 Stat. 538 (2016).

19

the “consultant corollary” is to become law, it should

be through a law properly passed by Congress, not

through judicial usurpation of the lawmaking function. And the Court should take this case to excise the

“consultant corollary” and give Congress that chance.

CONCLUSION

The petition should be granted.

Respectfully submitted,

Ilya Shapiro

William M. Yeatman*

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar under D.C. App. R. 46-A. Supervised by D.C. Bar member.

September 1, 2021

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com