FOIA lawsuit 3:13-CV-0992-HZ (filed 6/14/13)

On June 14, 2013, Lewis filed a civil complaint at the U.S. District Court in Portland, OR. This became 3:13-CV-0992-HZ. He named as Defendants FAA and FAA Administrator Michael Huerta. Lewis charged that FAA continues to be non-compliant with the FOIA laws, citing three claims: first, failure to comply with FOIA by use of excessive and improper FOIA Exemptions (specifically Ex.#’s 2, 6, and 7); second, failing to comply with the FOIA time limits on numerous FOIA Appeal responses; and, third, failing to comply with the FOIA time limits on two FOIA responses. He cited fourteen FOIA requests, all improperly handled by FAA. All documents below with blue links are accessible for viewing/copying. The Civil Action Docket is viewable online at The FOIA Project. Or, click on any of the following to open PDF copies for different dates:


6/14/13, INITIAL FILING:


6/19/13, Court Response to initial filing:


7/3/13, Service of Summons/Complaint upon Michael Huerta:


8/8/13, Plaintiff’s Memo, Presenting Details of his Complaint:


9/18/13, …Some Activity…:

It had been more than two months since Lewis received confirmation that the summons/complaint was received by Defendant FAA. In his earlier FOIA lawsuit, at two months after filing, Lewis had been advised who the Defendant Counsel was. So, Lewis sent an email to the Clerk for the presiding Judge, with CC’s to Administrator Huerta, David Grizzle, and Clayton Foushee.
An email response from the clerk advised Lewis to study the Federal Rules for Civil Procedure, paragraph 4(i). Lewis did so, then called the clerk, asking her to explain. She said, roughly, “I am not allowed to offer advice, you need to consult a lawyer for that.” Lewis then contacted the intake unit at the District Court and confirmed he needed to serve copies of the initial Complaint, as well as a Summons, to both additional parties. Why he had not been advised this before (and never had to do it on his first FOIA lawsuit) remains a mystery. Lewis scrambled to produce Summons copies, and made an extra trip to downtown Portland, to get the copies signed and stamped by the intake clerk. He hand-delivered the copy to the U.S. Attorney for the Oregon District. He mailed the copy to the U.S. Attorney General the next day.
Lessons learned: for a FOIA lawsuit against a Federal agency, Plaintiff has to serve the summons and complaint to all Defendants, as well as the Attorney General and the U.S. Attorney where the case was filed. And, once proof of service is received, return the purple-stamped Summons copies along with the proof of service statement. For hand-delivery, the proof is page two of the Summons, signed and dated; for certified mail deliveries, the proof is the copy of the green certified return card.

10/17/13, Extension of Time for Defendant Response:


11/15/13, Lewis received copy of FAA’s ‘Answer’, five months after he filed:

  • (CR-13) Defendant’s Answer: Although Lewis filed his complaint in mid-June, FAA officials did nothing for months. In mid-October, Lewis had received a phonecall from Kevin Danielson, who advised he was representing FAA (he is an assistant U.S. Attorney based in Portland, for the District of Oregon; he had also represented FAA in the previous FOIA lawsuit, 3:11-CV-01458-AC). In the phonecall, Mr. Danielson advised he was asking the Court for a two-week extension, so that FAA could produce their delayed response. Lewis did not oppose and Judge Hernandez granted the extension. Mr. Danielson then completed the response and filed it on 10/31/13. Within the response, FAA acknowledged a pattern of failing to meet timelines in FOIA responses and FOIA Appeal responses, but FAA denied all other allegations. FAA also repeatedly declared they “…lack knowledge or information sufficient to form a belief about the truth of the allegations….” FAA counsel had made no effort to communicate with Plaintiff, to accumulate the needed knowledge or information; it appears that FAA counsel also did not review any of the extensive FAA records filed by Plaintiff on 8/8/13.
  • At this point, FAA’s handling of their required response to the complaint has accomplished the following, favorable to perpetuating FAA’s unaccountable and corrupted work organization:
    1. the process has been delayed for five months;
    2. there have been no ‘meet-and-confer’ discussions between the parties, thus zero progress toward Discovery or Settlement;
    3. FAA officials have been fully insulated by running the one delayed response filing through Kevin Danielson (though FAA’s legal documents appear to be drafted by FAA attorney Dotty Worden); and,
    4. FAA has ensured that there is zero accountability for their actions to obstruct the judicial process.

11/19/13, Judge Hernandez issued a Scheduling Order:


12/2/13, Rule 16 Conference:

    • On 11/19/13, Lewis contacted Michelle Rawson (the Courtroom Deputy for Judge Hernandez) and requested a conference. No discussions toward Discovery and/or Settlement had occurred during the months Defendant FAA had delayed in their minimal response. A telephone conference was scheduled.
    • Conference was held and a (CR-16) Minutes of Proceedings was created by the Court. Deadlines were set for Discovery, including a 3/20/14 deadline for dispositive motions.
    • The 14 FOIA Cases within 3-13-cv-0992-HZ: a 5-page Table outlining the FOIA Cases included within this civil action, and including resolution proposals for each FOIA Case.

12/19/13, Discovery Process, Part One:

  • Six months after the FOIA lawsuit was filed, FAA finally produced some records. The paper copies were scanned by the U.S. District Court in Portland, OR and a DVD with 2,114 pages in PDF format was provided to Lewis on 12/19/13.
  • A review of the records shows that the vast majority are simply copies of what was already sent to Lewis, in earlier FOIA Responses and Appeal Responses. The thousands of excessive redactions (mostly citing FOIA Exemption #6) were continued in this latest production of FOIA records. However, within the 2,114 pages, there were a few ‘new records’.
  • Plaintiff Lewis prepared an Index of the entire 2,114-pages, viewable here. All copies are viewable via PDF (upon request).

3/12/2014, New Discovery Records:

  • Email from KD with attached FAA-0626-A1 thru A18. These are copies related to the KSJC case about the controller (DH) who failed to show for work and was eventually arbitrated by NATCA to just retire.

3/19/14, Joint Motion for Extension of Time (CR-18): (granted 3/25)


4/15/14, Discovery Meet & Confer:

  • Plaintiff met with Defendant FAA Counsel (KD) at the Federal Building in downtown Portland; lengthy discussion focused on records within F10-8248, F11-1765, F11-2164 and F12-6967. Ten pages of records were provided by FAA (new copies of specific pages within the 12/19/13 Discovery production, including F11-2662 (p.890, 891), F11-8134 (p.1163, 1178), F12-2082 (p.1646), and F12-6826 (P.1388, 1412, 1419, 1464, 1646).

5/15/14, Discovery Meet & Confer:

  • Plaintiff met with Defendant FAA Counsel (KD) at the Federal Building in downtown Portland; lengthy discussion focused on records within F11-1765, F11-2164, F11-2662, F12-2082, F12-6573, F12-6967 and F12-7031. FAA continues to refuse to reveal thousands of spot-redactions concealing facility names, geographic locations, names/titles of management officials, names/titles of NATCA officials, etc.

5/19/14, Joint Motion for Extension of Time: (granted 5/19)


7/16/14, Unopposed Motion for Extension of Time: (granted 7/17)


8/8/14, FAA Counsel emailed Lewis, attached 70-pages of Discovery records:

  • Nine pages were significant new records, and included:
    • (7p) for F11-1765, pgs. FAA-0744-A-01 thru FAA-0744-A-07: three CCR ATCT AHIS reports and response letters (7p), for angry controller issues (PG), dated 10/23/06, 11/14/06 and 11/21/06. FAA withheld these records from Lewis for years, denying critical details of a same-facility disciplinary case handled quite differently than Lewis’.
    • (23p) for F11-2662, pgs. FAA-0977-A-01 thru FAA-0977-A-23: generally duplicates the F11-1765 records above (three CCR ATCT AHIS cases), but adds a fourth AHIS case (pgs. 10-23) for a disabled female who charged on 5/28/05 that confidential medical files were improperly shared with her manager.
    • (2p) for F12-2082, pgs. FAA-2153 thru FAA-2154: 6/14/11 0942 email, McClure to Ferrante cc Bebble/Lindsey; review of his 6/13/11 interviews of Marcotte, Nielsen and Pruitt, reference the 7/25/10 concealed OE at CMA.
    • (38p) for F13-1654, pgs. FAA-2115 thru FAA-2152: no new records; just a collection of the standard FOIA documents (FOIA Request, FOIA Response, FOIA Appeal, and Appeal Response), with all spot-redactions continued.

8/11/14, Defendant FAA filed a Motion for Summary Judgment, and related Documents:


8/11/14, Lewis filed a Motion for Summary Judgment:

  • Plaintiff’s Motion for Summary Judgment (original, prior to administrative correction): (MSJ) 54-pages total, asking the Court to judge against FAA and grant specified relief (see pages 1-3). The MSJ package includes:
    • 3-page MSJ
    • 7-page Declaration by Lewis
    • Certificate of Service (at pg.11)
    • Exhibits specific to F11-4047 (at pages 12-36)
    • Exhibits specific to F11-7535 (at pages 37-39)
    • Exhibits specific to F12-6573 (at pages 40-42)
    • Exhibits specific to F12-6826 (at pages 43-48)
    • Exhibits specific to F12-6967 (at pages 49-54)

8/13/14, Administrative Correction:


9/2/2014, Defendant FAA filed in response to Lewis’ MSJ:


9/2/2014, Plaintiff filed a motion for an additional week to file his MSJ response:


9/10/2014, Plaintiff filed a response to Defendant FAA’s MSJ, including an affidavit by Don Hiebert:

  • (CR-38) Plaintiff’s Response to Defendant’s Motion for Summary Judgment: 19-pages total (18p Response & 1p Certificate of Service). Includes background, followed by .
  • (CR-38.1) Plaintiff’s Response, Exhibits: 26-pages total. The exhibits include:(CR-39) Affidavit of Don Hiebert: 17-pages total (14p Affidavit, 2p Exhibit & 1p Certificate of Service). Notes Mr. Hiebert’s past work history with Plaintiff, including his experience witnessing a concealment by FAA managers of an actual midair collision on 5/9/1999 at the Reid-Hillview Airport in San Jose. Also defines Mr. Hiebert’s concerns about FAA’s development of ATSAP as a ‘black hole’ for safety data. A 2-page exhibit is a 5/24/2012 Affidavit by another air traffic controller, Mike Marcotte, presenting details about yet another FAA concealment of a controller error, this time at Camarillo.
    • Exhibit 1: This is a 2-page email from Mark McClure to Tony Ferrante (AOV-1) sent 6/14/2011. It summarizes the AOV investigative interviews done the day before at Camarillo.
    • Exhibit 2: This is a set of five different copies of a 12/3/2007 email from Barry Davis to Teri Bristol. This email clearly defines FAA’s intention to reassign Lewis to a new control tower, yet five months later, FAA officials began drafting a letter proposing to fire Lewis. The five different copies illustrate how arbitrary FAA officials can be in choosing what to redact and what to disclose in FOIA responses.
    • Exhibit 3, at pages 1-7: This is Lewis’ 8/19/2013 letter submitted to the NPRM process, with comments opposing FAA’s proposed rule change to make ATSAP data exempt from FOIA disclosure.
    • Exhibit 3, at pages 8-11: This is a 4/11/2012 Declaration submitted by FAA manager Lisbeth Mack, discussing issues and FAA position on ATSAP and the Camarillo 7/25/2010 concealed error.
    • Exhibit 4: This is another 8/19/2013 comment, submitted by an ‘anonymous’ citizen. It expresses strong opposition to the FAA’s proposed new rule.
    • Exhibit 5: This is a copy of a 1/24/2000 newspaper article by Ed Pope, that appeared in the San Jose Mercury News. It presents the details of the 5/9/1999 actual midair collision that happened at Reid-Hillview Airport, but which was never reported by FAA to NTSB, thus never investigated by NTSB.

9/17/2014, Plaintiff filed a Motion seeking limited oral argument:

  • (CR-40) Plaintiff’s Unopposed Motion for Oral Argument: (CR-40) The proposal sought argument focused on just two disputed records: the 7/25/2010 ATSAP report for the Camarillo concealed controller error; and, the 3/4/2007 Report of Investigation (ROI) related to the NATCA official charged with making Hitler references and marking a binder with a swastika.

9/24/2014, Defendant FAA filed a Reply:


9/25/2014, Oral Argument set for 10AM on 10/10/2014:

  • (CR-42) ORDER Granting Motion for Oral Argument: Judge Hernandez granted Plaintiff’s 9/17/14 Motion for Limited Oral Argument. The Oral Argument was set for the morning of 10/10/2014, but notification was never received by Plaintiff. A later review indicates the envelope was postmarked two weeks later, on 10/8/14, and just 2-days prior to the scheduled oral argument. Because Plaintiff received no notification, at the time of the hearing he was in a remote area of the Olympic Peninsula, and not reachable by email or cell phone.

10/10/2014, The 10/10/2014 Hearing was Vacated:

  • (CR-44) MINUTES of Proceedings: Judge Hernandez ordered the Hearing vacated after Plaintiff failed to appear. However, Plaintiff had not received notice of the scheduled Oral Argument.

10/14/2014, Motion Hearing set for 11AM on 11/17/2014:

  • (CR-46) ORDER Granting Motion for Oral Argument, and Re-Scheduling to 11/17/14. The text reads: Scheduling Order by Judge Marco A. Hernandez regarding Motion for Summary Judgment [27], and Motion for Summary Judgment [30]. The Plaintiff requests resetting of the oral argument on the basis that he did not receive the scheduling order setting the matter for 10/10/2014. The Court grants Plaintiff’s telephone request to reset the oral argument as follows: Oral Argument is SET for 11/17/2014 at 11:00AM in Portland Courtroom 14B before Judge Marco A. Hernandez. Ordered by Judge Marco A. Hernandez. (mr) .

11/17/2014, Oral Argument:


11/25/2014, Motion by Plaintiff:

  • (CR-51) Plaintiff’s Motion, suggesting an Alternative Source of the In Camera ‘ATSAP’ Record: Plaintiff located contact information for all three FAA employees (One’ Nielsen, Mike Marcotte, and Kevin Pruitt) present at the Camarillo tower cab, when the operational error (OE) occurred on 7/25/10. One of these three filed the ATSAP report Judge Hernandez had ordered FAA to produce. There was concern that Defendant FAA would delay excessively in producing this 2-page record, so Plaintiff presented this motion to the court as an alternate way to expeditiously order production of the ATSAP report.

1/6/2015, Judge Hernandez’ Decision:

  • (CR-55) OPINION & ORDER: The Judge finished reviewing the unredacted copies of the 7/25/2010 CMA OE ATSAP and the 86-page ROI for the NATCA rep at S46 (SeaTac TRACON) who allegedly referred to his manager as ‘Hitler’ and drew a swastika on a briefing memo. The Judge then issued his decision.  FAA did NOT have to produce any records related to the ATSAP report, but needed to submit a proposed redacted copy of the ROI. The Judge also offered extensive details as to how the ROI should be redacted, granting FAA liberties to conceal content.
  • 1/16/2015, Defendant’s cover letter showing compliance

1/8/2015, Plaintiff’s Motion found Moot:


1/20/2015, FAA Counsel to Produce Records:


DATE, ACTION:

  • (CR-NUMBER) TITLE: NOTE.