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Rojas v. Federal Aviation Administration

United States District Court, D. Arizona

May 5, 2017

Jorge Alejandro Rojas, Plaintiff,
Federal Aviation Administration, Defendant.



         Before the court is Plaintiff Jorge Alejandro Rojas' Motion to Amend Judgment. (Doc. 23.) The court will deny the Motion because Rojas failed to establish causation for Request 8224 and failed to establish that he substantially prevailed in regards to Requests 8181 and 8537.

         I. BACKGROUND

         Jorge Alejandro Rojas (“Rojas”) attended Arizona State University and hoped to become an air traffic controller after graduation. (Doc. 21 at 1.) The Federal Aviation Administration (the “FAA”) authorized Arizona State University to grant degrees that conferred hiring eligibility under the FAA's Collegiate Training Initiative. (Id.) The FAA changed this process in 2014. (Id.) Rojas filed three Freedom of Information Act (“FOIA”) requests in order to obtain information about changes in the FAA's hiring practice and a controversy involving a FAA employee. (Id.) Rojas filed this suit in order to compel responses from the FAA to his three requests.

         The following facts are drawn from the undisputed portions of the FAA's statement of facts (Doc. 14), Rojas' statement of facts (Doc. 16), and parts of the record identified in the parties' briefs.

         a. Request 8224

         On July 29, 2015, Rojas electronically submitted a FOIA request. (Doc. 14-2 at 7.) Rojas requested “all emails, chats, and other documents” related to: Shelton Snow, an FAA employee[1], “correspondence regarding media reports related to changes to the air traffic control hiring program or cheating on an exam, and the search terms ‘Fox, ' ‘news, ' ‘article, ' ‘trouble in the skies, ' and ‘NBCFAE.'” (Id.) On August 3, 2015, the FAA sent Rojas a letter acknowledging the receipt of his request and named Tessa Berry as the agency contact person. (Doc. 14-2 at 15.) On August 4, 2015, Rojas received a letter naming Stacy M. Thomas as the agency contact person. (Doc. 1-1 at 4-5.) On August 5, 2015, Thomas requested documents responsive to Request 8224 from the Air Traffic Managers at Potomac Consolidated Terminal Radar Approach and the New York Air Route Traffic Control Center. (Doc. 14-3 at 114.)While his request was pending Rojas corresponded with multiple FAA employees. Rojas contacted the FAA on September 1, 2015, and was informed that an employee was reviewing documents related to the claim and intended to respond by September 16, 2015. (Doc. 1-1 at 6-9.) Following this email exchange, the FAA received a question from the Air Traffic Manager at the New York Air Route Traffic Control Center about the scope of the request. (Doc. 14-3 at 115.) An employee contacted the FOIA office at the FAA headquarters for guidance on the situation. (Id.) On September 8, 2015, a FOIA coordinator, Melanie Yohe, contacted Rojas about limiting the scope of the request. (Id.) Rojas responded that he felt uncomfortable limiting the scope of the request but ultimately did. (Doc. 23 at 7.) On September 21, 2015, Yohe contacted Rojas to let him know that the request would be processed, as it was originally submitted, because the attempt to limit the scope actually had the opposite effect. (Doc. 1-1 at 12.) Yohe explained that the cost of processing the request would exceed the $50.00 Rojas was willing to pay and that no work would begin on the request until Rojas agreed to pay all estimated fees. (Id.) Rojas was also informed that the FAA extended the response date to October 16, 2015, due to unusual circumstances. (Id. at 13.)

         Rojas filed this suit on October 5, 2015. (Doc. 1.) As required by Rule 4(i), Rojas served the complaint by serving it upon the United States Attorney and mailing copies to the FAA, and the Attorney General, which were received respectively on October 14, 15, and 16, 2015. (Doc. 7.) On October 16, 2015, the FAA sent Rojas a written response and responsive documents for Request 8224. (Doc. 14-2 at 42.) Rojas received this letter on October 29, 2015. (Doc. 23 at 8.) The complaint in regards to Request 8224 was found moot since Rojas was satisfied with the release of documents. (Doc. 16 at 4.)

         b. Request 8181 and 8537

         The facts regarding Requests 8181 and 8537 have been previously addressed in this Court's Order granting the FAA's Motion for Summary Judgment. (Doc. 20.) Those facts are incorporated herein. To summarize briefly, Rojas submitted Request 8181 on July 26, 2015, seeking “applicant flow analysis” or “applicant survival analysis” described as a numerical listing of demographics at various stages in vacancy announcements. (Doc. 14-2 at 4-5; Doc. 16-1 at 18.) Request 8537 was submitted on August 7, 2015, and sought screenshots or copies of the “applicant information summary” for all candidates that applied to a specific vacancy and which candidates who passed the biographical assessment.

         On January 28, 2016, the FAA responded to both requests. (Doc 14-3 at 103-04, 106-07.) The FAA explained to Rojas that they did not have to respond to the requests because the requests would require that the FAA create records that did not previously exist. (Id.) The FAA moved for summary judgment in regards to the Requests 8181 and 8537. (Doc. 13.) This Court granted that motion on November 12, 2016. (Doc. 21.) In granting the motion, this Court concluded that the Court would not compel the FAA to produce documents in connection to Requests 8181 and 8537. (Id. at 13.) The Court also denied Rojas' claim for attorney's fees and costs for Requests 8442, 8181 and 8537 since he was not a prevailing party. (Id.)

         Rojas now asks this Court to amend its Judgment (Doc. 22) and its Order (Doc. 21) in order to award Rojas attorney's fees. (Doc. 23 at 1.)


         Federal Rule of Civil Procedure 59(e) provides a mechanism for a court to alter or amend a prior order. The court has “considerable discretion in granting or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir. 1999) (en banc). However, amending a judgment remains an “extraordinary remedy, to be used sparingly in the interest of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A motion to amend judgment may only be granted where: “1) the motion is ‘necessary to correct manifest errors of law or fact upon which the judgment is based;' 2) the moving party presents ‘newly discovered or previously unavailable evidence;' 3) the motion is necessary to ‘prevent manifest injustice;' or 4) there is an ‘intervening change in controlling law.'” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (emphasis in original).

         In granting the FAA's Motion for Summary Judgment, this Court denied attorney's fees to Rojas. (Doc. 21 at 13-14.) Fees were denied based on the “prevailing party” standard expressed in Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health and Human Services. 532 U.S. 598, 605 (2001). Rojas now argues that this Court manifestly erred in applying the law by failing to apply the “catalyst theory, ” pursuant to 5 U.S.C. § 552(a)(4)(E), in determining his eligibility for attorney's fees. (Doc. 23 at 5.) Previously, Rojas failed to inform the Court that § 552(a)(4)(E) had a different standard than Buckhannon. The Court's initial decision to deny fees was the correct application of the Buckhannon standard. Nevertheless, it is in this Court's discretion to reconsider the award of attorney's fees under the catalyst theory.


         The fee-shifting provision of FOIA states that a “court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). “[A] complainant has substantially prevailed if the complainant has obtained relief through . . . a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii)(II) A party seeking attorney fees in a FOIA action must show that they are both eligible and entitled to an award of attorney's ...

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