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People for Ethical Treatment of Animals v. United States Department of Agriculture

United States Court of Appeals, District of Columbia Circuit

March 15, 2019

People for the Ethical Treatment of Animals, et al., Appellants
United States Department of Agriculture and Animal and Plant Health Inspection Service, Appellees Table 1 Documents Plaintiffs Seek from USDA on Appeal

          Argued January 25, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-00269)

          Katherine Anne Meyer argued the cause for appellants. With her on the briefs was William N. Lawton.

          John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Mark B. Stern, Attorney. Michael S. Raab and Daniel Tenny, Attorneys, entered appearances.

          Before: Garland, Chief Judge, Katsas, Circuit Judge, and Williams, Senior Circuit Judge.


          Williams, Senior Circuit Judge

         A coalition of animal rights advocates led by People for the Ethical Treatment of Animals (collectively "PETA") appeals the dismissal of their FOIA claims seeking records relating to animal welfare laws and regulations from the U.S. Department of Agriculture ("USDA"). Plaintiffs sued after the agency had removed certain records posted online, explaining its action in language consistent with an intention to restore them except for redactions required by privacy interests (but without a clear commitment to such restorations).

         The district court dismissed all claims on varying grounds: (1) on the merits-as to certain issues not appealed; (2) on mootness with regard to material restored by USDA to the website, and (3) as to redactions from restored materials, on the ground that plaintiffs' complaint did not address them. We reverse on the last issue without reaching the merits, and we remand for further factual clarification bearing on plaintiffs' contention that USDA's voluntary cessation of unlawful activity renders mootness inapplicable. We affirm the district court's refusal to grant discovery against the agency.

         * * *

         Plaintiffs seek documents from the Animal and Plant Health Inspection Service ("APHIS"), the entity within USDA that administers the Animal Welfare Act ("AWA"), 7 U.S.C. §§ 2131 et seq., and is responsible for licensing and inspecting animal research facilities, among other things. Plaintiffs filed this suit shortly after USDA took down from its website a large swath of documents relating to AWA compliance. On February 3, 2017, USDA announced that, "during the past year," APHIS had been "conduct[ing] a comprehensive review of the information it posts" online. See USDA, Stakeholder Announcement: Updates to APHIS' Website Involving Animal Welfare Act and Horse Protection Act Compliance Information (Feb. 3, 2017) (updated Feb. 15, 2017), /sa_by_date/sa-2017/sa-02/awa-hpa-compliance. The announcement stated that USDA was taking down a host of records with the aim of "remov[ing] certain personal information." Id. In doing so, the agency was "striving to balance the need for transparency with rules protecting individual privacy." Id. Though the announcement did not expressly say that the takedown was temporary or provide a timeline to repost records, the agency in this litigation describes the removal as "provisional[]," suggesting that "remov[ing] . . . personal information" is a task temporary in nature. See USDA Br. 6; see also J.A. 43 (USDA's motion to dismiss describing the takedown as "a temporary precaution"). The district court agreed, calling the removal "temporary" and "one-time," People for Ethical Treatment of Animals, Inc. v. U.S. Dep't of Agric. (PETA I), 285 F.Supp.3d 307, 313 (D.D.C. 2018), though plaintiffs do not concede the point, see PETA Br. 31.

         On February 13, 2017, plaintiffs filed this suit asking for declaratory and injunctive relief, invoking what is known as FOIA's "reading room" provision, 5 U.S.C. § 552(a)(2). That provision requires agencies to "make available for public inspection in an electronic format" five categories of documents. The complaint focuses on four types of records (as grouped by the district court) that the agency had removed: (1) research facility annual reports; (2) inspection reports; (3) lists of entities licensed under the AWA; and (4) regulatory correspondence and enforcement records that had not yet received final adjudication. See Compl. ¶¶ 1, 30; 285 F.Supp.3d at 310-11.

         Plaintiffs allege that they depend on these documents for, inter alia, scholarly endeavors, see Compl. ¶ 5, and wide-ranging advocacy work, including unearthing and correcting AWA compliance violations, Compl. ¶ 24. The records at issue, plaintiffs allege, were "routine[ly]" made available "[f]or many years," Compl. ¶ 31, though admittedly with redactions in line with relevant FOIA exemptions, including for "personal privacy," Compl. ¶ 21; see 5 U.S.C. § 552(b)(6). PETA alleges that under § 552(a)(2) USDA must disclose all removed records, Compl. ¶ 34, and avers that requiring plaintiffs to file FOIA requests for these records under § 552(a)(3) would be onerous, exacerbating USDA's existing "substantial backlog" in processing FOIA requests. Compl. ¶ 27.

         PETA asked for an order requiring that USDA "immediately" "make all . . . records" described in the complaint available by electronic means. It also sought a declaration that USDA had violated FOIA by removing the documents, along with an injunction ordering the agency to "make all such records available" to plaintiffs on an ongoing basis. Compl. 15.

         For simplicity's sake, we exclude two groups of documents from further discussion: the entirety of category (4) above, and the portion of category (2) consisting of animal inventories. As to these, the district court dismissed plaintiffs' complaint under Rule 12(b)(6) on the ground that it failed to say why they were covered by 5 U.S.C. ...

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