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, ORDER AND Defendant-Appellee. AMENDED OPINION Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding Argued and Submitted June 6, 2018 Pasadena, California Filed April 24, 2019 Amended June 18, 2019 Before: Kim McLane Wardlaw and Morgan Christen, Circuit Judges, and Donald W. Molloy, * District Judge. * The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 2 ROJAS V. FAA Order; Opinion by Judge Molloy; Partial Concurrence and Partial Dissent by Judge Christen SUMMARY ** Freedom of Information Act The panel reversed the district court’s order granting summary judgment in favor of the Federal Aviation Administration (“FAA”) in a case concerning a Freedom of Information Act (“FOIA”) request. The plaintiff submitted the FOIA request after the FAA notified him that he was ineligible for an Air Traffic Control Specialist position based on his performance on a screening test called the Biographical Assessment. The panel held that the FAA failed to conduct a search reasonably calculated to uncover all relevant documents in response to plaintiff’s FOIA request. The panel held that the records at issue were not “intra- agency” documents, and FOIA’s Exemption 5 did not apply. Joining the Sixth Circuit, the panel rejected the consultant corollary theory, adopted by the district court and some sister circuits, which uses a functional interpretation of Exemption 5 that treats documents produced by an agency’s third-party consultant as “intra-agency” memorandums. ** 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 The panel rejected plaintiff’s argument that the FAA had an obligation under FOIA to retrieve any responsive documents, such as the underlying data to the summaries. Judge Christen concurred in part and dissented in part. She concurred with the majority that plaintiff cannot use FOIA to access materials that the FAA does not actually possess, and that the scope of the FAA’s in-house search for responsive documents was inadequate. She dissented from the majority’s rejection of the consultant corollary doctrine adopted by seven sister circuits. She would adopt the corollary to shield work product generated by the government’s outside consultants in anticipation of litigation. COUNSEL Michael William Pearson (argued), Curry Pearson & Wooten PLC, Phoenix, Arizona, for Plaintiff-Appellant. Alarice M. Medrano (argued), Assistant United States Attorney; Dorothy A. Schouten, Chief, Civil Division; United States Attorney’s Office, Los Angeles, California; for Defendant-Appellee. 4 ROJAS V. FAA ORDER The opinion filed on April 24, 2019, and reported at 922 F.3d 907 (9th Cir. 2019), is amended at footnote 1. The amended opinion is filed simultaneously with this Order, along with the unchanged dissent. The parties may file petitions for rehearing and petitions for rehearing en banc in response to the amended opinion, as allowed by ...
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