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Animal Legal Defense Fund v. United States Department of Agriculture

United States Court of Appeals, Ninth Circuit

August 29, 2019

Animal Legal Defense Fund; Stop Animal Exploitation Now; Companion Animal Protection Society; Animal Folks, Plaintiffs-Appellants,
v.
United States Department of Agriculture; Animal and Plant Health Inspection Service, Defendants-Appellees.

          Argued and Submitted December 17, 2018 San Francisco, California

          Appeal from the United States District Court for the Northern District of California D.C. No. 3:17-cv-00949-WHO William Horsley Orrick, District Judge, Presiding

          Margaret B. Kwoka (argued), Sturm College of Law, University of Denver, Denver, Colorado; Christopher Berry and Matthew Liebman, Animal Legal Defense Fund, Cotati, California; John S. Rossiter and Lindsey E. Dunn, Perkins Coie LLP, San Francisco, California; for Plaintiffs-Appellants.

          Daniel Tenny (argued) and Michael S. Raab, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

          Scott L. Nelson and Patrick D. Llewellyn, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen, Inc.

          Robert G. Hensley, Legal Advocacy Senior Counsel, American Society for the Prevention of Cruelty to Animals, New York, New York, for Amicus Curiae American Society for the Prevention of Cruelty to Animals.

          Before: Consuelo M. Callahan and N. Randy Smith, Circuit Judges, and Fernando M. Olguin, [*] District Judge.

         SUMMARY[**]

         Freedom of Information Act

         The panel reversed in part and affirmed in part the district court's dismissal for lack of subject matter jurisdiction of plaintiffs' action against the U.S. Department of Agriculture, alleging claims under the Freedom of Information Act ("FOIA") and the Administrative Procedure Act ("APA").

         FOIA requires federal agencies to make certain agency records "available for public inspection in an electronic format." 5 U.S.C. § 552(a)(2). FOIA's judicial-review provision authorizes district courts to enjoin violations of this "reading room" provision. The Animal and Plant Health Inspection Service ("APHIS") enforces the Animal Welfare Act on behalf of the U.S. Department of Agriculture. In February 2017, APHIS removed various compliance and enforcement records from its website, and has represented that it will no longer post certain records.

         Plaintiffs are animal rights organizations, and they alleged that defendants violated FOIA's reading-room provision. Plaintiffs requested that the district court enjoin the agency from withholding the records and order the agency to make the records publicly available in an electronic format on an ongoing basis.

         The panel held that plaintiffs have standing because their inability to inspect documents in virtual reading rooms harmed them in real-world ways, their injuries were different from the injuries sustained by other Americans who never regularly visited the online reading rooms, and their alleged injuries were "fairly traceable" to the agency's action, and likely to be redressed by their requested relief.

         The panel held that 5 U.S.C. § 552(a)(4)(B) provided district courts with authority to order an agency to post records in an online reading room, and reversed the dismissal of the FOIA claims. The panel rejected APHIS's challenges to this holding. In addition to the text and structure of FOIA, several lines of Supreme Court and Ninth Circuit precedent support interpreting FOIA's judicial-review provision as authorizing district courts to order agencies to comply with their § 552(a)(2) obligations. The panel noted its disagreement with the D.C. Circuit's analysis in Citizens for Responsibility & Ethics in Washington v. DOJ ("CREW I"), 846 F.3d 1235, 1238-44 (D.C. Cir. 2017) (holding that FOIA constrains judicial enforcement of the reading-room provision).

         The panel left it to the district court on remand to decide in the first instance whether plaintiffs have exhausted their reading room claim, or whether such exhaustion would be futile.

         The panel affirmed the district court's dismissal of plaintiffs' Administrative Procedure Act claims because the potential for meaningful relief under FOIA displaced these claims.

          OPINION

          N.R. SMITH, CIRCUIT JUDGE

         The Freedom of Information Act ("FOIA") requires federal agencies to make certain agency records "available for public inspection in an electronic format." 5 U.S.C. § 552(a)(2). FOIA's judicial-review provision authorizes district courts to enjoin violations of this "reading-room" provision. See id. § 552(a)(4)(B).

         BACKGROUND

         The Legal Landscape

         Congress designed FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep't of Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). Corruption, government inefficiency, and mistrust of public institutions all flourish "unless the people are permitted to know what their government is up to." See Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J., dissenting)); see also id. at 772 n.20. After all, public scrutiny and an informed citizenry are "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

         To implement these goals, FOIA creates three different mechanisms for making agency records available to the public. First, the law compels agencies to publish certain categories of documents in the Federal Register. 5 U.S.C. § 552(a)(1). Second, in the provision at issue in this case, FOIA requires agencies to make certain records "available for public inspection in an electronic format." Id. § 552(a)(2). Third, under FOIA's most-recognized provision, members of the public may request agency records, and the agency-subject to limited exemptions-must produce them. Id. § 552(a)(3). Agencies must provide the record "in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." Id. § 552(a)(3)(B).

         Unlike FOIA's "reactive" mechanism in § 552(a)(3), § 552(a)(2) identifies certain categories of records the agency must make available on an ongoing basis, no request necessary. This affirmative obligation applies to:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a member of the public;
(D) copies of all records, regardless of form or format-
(i) that have been released to any person under paragraph (3) [§ 552(a)(3)]; and
(ii)(I) that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or
(II) that have been requested 3 or more times; and
(E) a general index of the records referred to under subparagraph (D)[.] Id. § 552(a)(2).

Section 552(a)(2) became known as the "reading-room" provision because, as the Department of Justice ("DOJ") explains, agencies historically met their § 552(a)(2) obligations by placing the appropriate records in a physical, public reading room. DOJ, Dep't of Justice Guide to the Freedom of Information Act: Proactive Disclosures ("DOJ 2014 Guide to FOIA"), 12-13 (July 23, 2014), https://www.justice.gov/sites/default/files/oip/legacy/2014/ 07/23/proactive-disclosures.pdf. However, Congress ushered FOIA into the electronic age in 1996, amending the statute to require proactively disclosed records created after November 1, 1996, to be available by "electronic means." See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (1996). In 2016, Congress again amended § 552(a)(2), this time specifying that agencies shall make records available "for public inspection in an electronic format." FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016). As a result, agencies today simply post records in electronic reading rooms on their websites rather than requiring citizens to visit an agency's physical reading room in person. See DOJ, Dep't of Justice Guide to the Freedom of Information Act: Introduction, 6 (April 11, 2019), https://www.justice.gov/oip/foia-guide/proactive_disclosures/download; DOJ 2014 Guide to FOIA at 12-13.

         The 1996 amendments also added a new category of records to the reading-room provision: frequently requested records. See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231. Legislative reports, the DOJ, and the DOJ's Office of Information Policy ("OIP") justify the availability of frequently requested records in terms of reducing requests for copies, streamlining processing, and trimming bloated agency backlogs.[1] The 2016 amendments retained an agency's ability to determine which records deserved § 552(a)(2) treatment based on the likelihood of "becom[ing] the subject of subsequent requests[, ]" but also codified the "Rule of 3," requiring automatic reading-room treatment for records previously released under § 552(a)(3) and requested three or more times. 5 U.S.C. § 552(a)(2)(D).

         In addition to the three key disclosure provisions, FOIA vests jurisdiction in federal courts "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B). This provision provides for de novo review and places the burden on the agency "to sustain its action," except that courts must defer to an agency's affidavit concerning technical feasibility for purposes of the reading-room requirement to post manuals and instructions that affect a member of the public. Id.[2]

         The Records

         The Animal Welfare Act ("AWA") sets minimum standards for the humane treatment of animals and regulates several categories of commercial animal enterprises. See 7 U.S.C. §§ 2131-59. The Animal and Plant Health Inspection Service ("APHIS") enforces the AWA on behalf of the U.S. Department of Agriculture ("USDA"). See id.; 9 C.F.R. §§ 1-12. These enforcement activities generate the five categories of agency records at issue in this case: annual reports;[3] inspection reports;[4] official warning letters;[5] pre-litigation settlement agreements;[6] and administrative complaints.[7]

         For roughly the last decade, APHIS housed these records in databases in the FOIA reading-room portion of its website.[8] In its responses to particular record requests and internal guidance documents, APHIS has described the records as frequently requested. See USDA APHIS, Letter from Kevin Shea, Acting APHIS Administrator, and Bill Clay, Acting APHIS Associate Administrator, to APHIS Management Team and Program Leaders Group ("APHIS Letter"), 1 (June 19, 2009), https://www.aphis.usda.gov/foia/downloads/APHIS%20Co mmittment%20to%20Transparency.pdf. If ...


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