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