Aldf v. Usda ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANIMAL LEGAL DEFENSE FUND; No. 17-16858
STOP ANIMAL EXPLOITATION NOW;
COMPANION ANIMAL PROTECTION D.C. No.
SOCIETY; ANIMAL FOLKS, 3:17-cv-00949-
Plaintiffs-Appellants, WHO
v.
OPINION
UNITED STATES DEPARTMENT OF
AGRICULTURE; ANIMAL AND PLANT
HEALTH INSPECTION SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted December 17, 2018
San Francisco, California
Filed August 29, 2019
Before: Consuelo M. Callahan and N. Randy Smith,
Circuit Judges, and Fernando M. Olguin,* District Judge.
Opinion by Judge N.R. Smith;
Dissent by Judge Callahan
*
The Honorable Fernando M. Olguin, United States District Judge for
the Central District of California, sitting by designation.
2 ALDF V. USDA
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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALDF V. USDA 3
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.
4 ALDF V. USDA
Judge Callahan dissented in part. For the reasons set forth
in CREW I, Judge Callahan would hold that FOIA provided
an adequate alternative remedy, and courts lacked authority
under FOIA to order agencies to make records available for
public inspection. She would affirm the dismissal of
plaintiffs’ FOIA claim for lack of subject matter jurisdiction.
COUNSEL
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.
ALDF V. USDA 5
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
6 ALDF V. USDA
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—
ALDF V. USDA 7
(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
8 ALDF V. USDA
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
1
See S. Rep. No. 114-4, at 2 (2015), as reprinted in 2016
U.S.C.C.A.N. 321, 322 (identifying increasing requests and corresponding
backlogs as a barrier to “ensur[ing] that FOIA remains the nation’s
premier transparency law”); H.R. Rep. No. 104-795, at 11, 21 (1996), as
reprinted in 1996 U.S.C.C.A.N. 3448, 3454, 3464 (“An underlying goal
of H.R. 3802 is to encourage on-line access to Government information
available under the FOIA, including requests ordinarily made pursuant to
section 552(a)(3).”); S. Rep. No. 104-272, at 5, 11, 13–14 (1996)
(explaining that § 552(a)(2)(D) reduces duplicative FOIA requests);
DOJ 2014 Guide to FOIA at 11; DOJ OIP, Congress Enacts
FOIA Amendments, FOIA Update, Vol. XVII, No. 4 (Jan. 1, 1996),
https://www.justice.gov/oip/blog/foia-update-congress-enacts-foia-
amendments (“Ideally, [reading room availability of frequently
requested records] will satisfy much of the future public demand for those
processed records, in a more efficient fashion.”); DOJ OIP, OIP
Guidance: Electronic FOIA Amendments Implementation Guidance
Outline, FOIA Update, Vol. XIX, No. 1 (Jan. 1, 1998),
ALDF V. USDA 9
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
https://www.justice.gov/oip/blog/foia-update-oip-guidance-electronic-
foia-amendments-implementation-guidance-outline (“[A]gencies should
keep in mind that its purpose is to reduce the number of future requests for
the same information.”).
2
The judicial-review provision, § 552(a)(4)(B), provides that “a court
shall accord substantial weight to an affidavit of an agency concerning the
agency’s determination as to technical feasibility under paragraph (2)(C)
and subsection (b) and reproducibility under paragraph (3)(B).” Paragraph
(2)(C) refers to § 552(a)(2)(C), which requires agencies to “make
available for public inspection in an electronic format . . . administrative
staff manuals and instructions to staff that affect a member of the
public[.]” Subsection (b) sets forth the statutory exemptions from FOIA
disclosure. Id. § 552(b). Paragraph (3)(B) refers to § 552(a)(3)(B), which
provides that “an agency shall 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.”
10 ALDF V. USDA
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
3
Federal regulations require scientific research facilities to submit
these annual reports detailing the number and species of animals used in
research, including descriptions of procedures producing pain and reasons
why pain-relieving drugs were not used. See 9 C.F.R. § 2.36(b).
4
APHIS inspectors assess whether facilities are complying with
AWA standards for housing, ventilation, sanitation, veterinary care, and
so on. These inspectors document violations—including instances of
serious animal abuse or neglect—in inspection reports.
5
Depending on the case, an inspection report may prompt a formal
investigation, and these formal investigations can lead to issuing an
official warning letter.
6
When APHIS brings administrative enforcement actions seeking
monetary penalties, it occasionally negotiates pre-litigation settlement
agreements, which typically include a formal finding of an AWA violation
and an agreed-upon fine.
7
APHIS files administrative complaints before the Office of the
Administrative Law Judge (“OALJ”). These documents explain APHIS’s
position on a violation and trigger the adjudicatory process.
ALDF V. USDA 11
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 already-posted
information was responsive to a later FOIA request, APHIS
would generally refer requesters to the APHIS online reading
room.
Although APHIS reviewed the documents before posting
and redacted them to protect personal privacy, APHIS grew
concerned that its system for reviewing and redacting records
was insufficient. In February 2017, APHIS removed the
various compliance and enforcement records from its website.
APHIS represents that it has devoted substantial resources to
reviewing and re-posting the records. While it has made
progress in re-posting some reports, APHIS has represented
on appeal that it will no longer post official warning letters,
stipulations, pre-litigation settlement agreements, and
administrative complaints. See USDA APHIS, Animal Care
Information System Website Review Chart (Aug. 18, 2017),
https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/
8
The Animal Care Information Search (“ACIS”) database included
annual reports and inspection reports; the Enforcement Actions (“EA”)
database contained the agency’s enforcement responses, including all
official warning letters, settlement agreements, and administrative
complaints before the OALJ.
12 ALDF V. USDA
SA_AWA/acis-table. Instead, it “will post statistical
summaries each calendar quarter.” Id.
The Dispute
Plaintiffs include the Animal Legal Defense Fund
(“ALDF”), a national nonprofit headquartered in California
that seeks to advance the interests of animals through the
legal system; Stop Animal Exploitation Now (“SAEN”), an
Ohio nonprofit geared at ending animal abuse in laboratories;
Companion Animal Protection Society (“CAPS”), a national
nonprofit dedicated to preventing animal abuse in pet shops
and puppy mills; and Animal Folks, a Minnesota nonprofit
that uses research and collaboration with local authorities to
improve enforcement of animal protection laws.
Plaintiffs allege that FOIA’s reading-room provision
requires APHIS to post all of the documents at issue, because
they are “frequently requested.” See 5 U.S.C. § 552(a)(2)(D);
APHIS Letter. Plaintiffs further allege that APHIS must
affirmatively disclose inspection reports, Letters of
Information, official warning letters, and pre-litigation
settlement agreements for the additional reason that these
records constitute final agency orders. See 5 U.S.C.
§ 552(a)(2)(A).
Plaintiffs allege that (1) they frequently used APHIS
databases to access these records, (2) without access to the
databases, they have been forced to issue individual FOIA
requests for categories of information previously available in
the APHIS databases, (3) they will continue to submit
requests as long as the databases remain offline,
(4) individual FOIA requests will consume more staff time
and resources than using the free APHIS databases, and
ALDF V. USDA 13
(5) they have experienced extended wait periods for records
requested from APHIS—a lapse of time that makes
information they ultimately receive both stale and less helpful
in achieving their goals. For example, declarations from
ALDF and Animal Folks allege how the organizations have
visited the online reading rooms, using agency records to
identify areas of animal welfare concern and seek
enforcement actions, including asking the USDA to revoke
licenses or bring facilities into compliance. ALDF also
pursues legal actions on behalf of its members, such as a
recent lawsuit against a pet store chain, alleging the company
violated consumer protection laws by representing it did not
obtain puppies from “puppy mills.”
The Executive Director of SAEN averred that he checked
the databases up to ten times a day, and often issued press
releases and filed enforcement actions within twenty-four
hours of APHIS uploading records about problematic animal
research facilities. One campaign culminated in the USDA
revoking the company’s dealer license, canceling its research
registration, and imposing a $3.5 million fine.
CAPS has alleged its work involves acting as a watchdog,
in that it performs its own investigations, compares them to
APHIS’s reports, and refers discrepancies to the Office of
Inspector General (“OIG”). This work partly prompted the
OIG’s 2010 report exposing APHIS’s continued lackluster
enforcement. See USDA OIG, Animal and Plant Health
Inspection Service Animal Care Program Inspections of
Problematic Dealers, 1–3 (May 14, 2010),
https://www.usda.gov/oig/webdocs/33002-4-SF.pdf.
14 ALDF V. USDA
The Proceedings Below
Plaintiffs’ complaint first alleges the USDA and APHIS
violated FOIA’s reading-room provision. They request that
the district court enjoin the agency from withholding the
aforementioned records and order the agency to make the
records publicly available in an electronic format on an
ongoing basis. Plaintiffs’ second claim requests the same
relief under the Administrative Procedure Act (“APA”). See
5 U.S.C. §§ 702, 704. Plaintiffs’ third claim for relief alleges
that APHIS’s decision to remove two key databases from its
website is a final agency action that is arbitrary, capricious,
and an abuse of discretion. See id. § 706.
After filing suit, Plaintiffs sought a preliminary
injunction. The district court ruled against them.
Specifically, the district court concluded that Plaintiffs were
unlikely to succeed on the merits of their claims, because
FOIA plaintiffs “may seek injunctive relief and production
of documents to them personally,” but “they cannot compel
an agency to make documents available to the general
public.” The district court also preliminarily concluded
Plaintiffs had not properly exhausted their claim, because
they had only made requests for particular records, but not
“the precise relief they seek here (for APHIS to repost all
previously available files to the APHIS databases).”
Plaintiffs then sent a letter to APHIS, requesting that the
agency resume posting the records. APHIS responded that
“this submission is not a proper request under FOIA.”9
9
APHIS responded that “ALDF may request its own copy of these
records or an opportunity to inspect them[,] . . . [h]owever, the USDA
FOIA regulations, and FOIA itself, do not require the agency to comply
ALDF V. USDA 15
The district court subsequently granted APHIS’s motion
to dismiss for lack of subject matter jurisdiction, determining
that courts may not compel agencies to publish records in
online reading rooms under FOIA’s reading-room provision.
It did not address the exhaustion question. Plaintiffs
appealed, and we have jurisdiction under 28 U.S.C. § 1291.
We reverse the dismissal of Plaintiffs’ FOIA claim, but
affirm with respect to Plaintiffs’ APA claims, and remand.
DISCUSSION
“We review de novo the district court’s dismissal for lack
of subject matter jurisdiction.” Yagman v. Pompeo, 868 F.3d
1075, 1078 (9th Cir. 2017).
I.
APHIS has not challenged Plaintiffs’ standing. However,
courts have an “independent obligation” to police their own
subject matter jurisdiction, including the parties’ standing.
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009);
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
Accordingly, we must assure ourselves that Plaintiffs have
alleged an injury in fact, fairly traceable to the defendant’s
conduct, and likely to be redressed by a favorable judicial
decision. Spokeo, Inc., v. Robins, 136 S. Ct. 1540, 1547
(2016). Demonstrating injury in fact requires a plaintiff to
show she suffered “‘an invasion of a legally protected
with requests to publish records online. Instead, they provide a means for
those who wish to inspect or obtain copies of records to seek such relief
from the agency.” Whether an “opportunity to inspect” is synonymous
with “public inspection in an electronic format,” id. § 552(a)(2), is not
before us.
16 ALDF V. USDA
interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Id. at 1548
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). A “particularized” injury affects the plaintiff
personally, and a “concrete” injury “must actually exist.” Id.
“At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss we ‘presum[e] that general allegations
embrace those specific facts that are necessary to support the
claim.’” Lujan, 504 U.S. at 561 (alteration in original)
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889
(1990)). Our independent obligation to assure ourselves of
standing mimics the standard on a motion to dismiss, see
Bennett v. Spear, 520 U.S. 154, 168 (1997), and “turns on the
nature and source of the claim asserted,” Warth v. Seldin,
422 U.S. 490, 500 (1975).
Plaintiffs have alleged “procedural” injuries, in that the
reading-room provision requires government agencies to
follow a particular procedure in making certain categories of
documents available (i.e., making them “available for public
inspection in an electronic format” without a triggering
request, 5 U.S.C. § 552(a)(2), rather than just providing the
records to individual requesters). The Supreme Court has
explained that “the violation of a procedural right granted by
statute can be sufficient in some circumstances to constitute
injury in fact.” Spokeo, Inc., 136 S. Ct. at 1549. “In other
words, a plaintiff in such a case need not allege any
additional harm beyond the one Congress has identified.” Id.
In this case, we need not decide whether a bare statutory
violation constitutes a cognizable injury in fact, because
Plaintiffs allege that the agency’s failure to make records
available in its virtual reading rooms has “caused some
ALDF V. USDA 17
real—as opposed to purely legal—harm to the plaintiff.” See
Robins v. Spokeo, Inc., 867 F.3d 1108, 1112 (9th Cir. 2017),
cert. denied, 138 S. Ct. 931 (2018). For example, ALDF has
alleged that, because the agency has failed to affirmatively
disclose the records, its members lack timely information to
inform their daily lives (such as whether they are about to
purchase a pet from a puppy mill known for abuses).
Managing voluminous FOIA requests costs time and money
to access the records on previously public and free APHIS
databases. Waiting for the agency to produce records after a
request makes information stale, allegedly hampering
SAEN’s rapid response tactics.
Plaintiffs also allege “informational” injuries. A plaintiff
sustains a cognizable informational injury in fact when
agency action cuts her off from “information which must be
publicly disclosed pursuant to a statute.” FEC v. Akins,
524 U.S. 11, 21 (1998). Informational injuries remain firmly
embedded in both Supreme Court and circuit cases. See, e.g.,
Spokeo, Inc., 136 S. Ct. at 1549–50; Akins, 524 U.S. at 20–25;
Pub. Citizen v. DOJ, 491 U.S. 440, 449 (1989); Davidson v.
Kimberly-Clark Corp., 889 F.3d 956, 971 (9th Cir. 2018),
cert. denied, 139 S. Ct. 640 (2018); Hajro v. U.S. Citizenship
& Immigration Servs., 811 F.3d 1086, 1105 (9th Cir. 2015),
as amended (Jan. 19, 2016) (explaining the basis for
informational injuries under FOIA); Wilderness Soc., Inc. v.
Rey, 622 F.3d 1251, 1258–60 (9th Cir. 2010) (describing how
courts have found informational standing based on the
deprivation of a statutory rights to information).
Informational injuries exist absent the denial of a request
for particular information. See Akins, 524 U.S. at 21 (holding
that a group of voters had suffered a cognizable injury
because they were denied information that the Federal
18 ALDF V. USDA
Election Campaign Act required be made public);
Waterkeeper All. v. Envtl. Prot. Agency, 853 F.3d 527, 533
(D.C. Cir. 2017) (concluding an agency’s action that “reduces
the information that must be publicly disclosed” meant the
plaintiff “(and others) who previously sought that information
no longer have a statutory right to access it. For the purpose
of standing, that’s injury enough.”). However, some cases
describe the injury sustained by a FOIA plaintiff as the denial
of a request for particular records. Pub. Citizen, 491 U.S. at
449 (noting that FOIA redresses the injury of those who
“sought and were denied specific agency records”). This
framing offers some intuitive appeal in the vast majority of
FOIA cases, because the vast majority of FOIA cases arise
under § 552(a)(3), the provision specifically requiring
agencies to “make the records promptly available” upon
request. However, FOIA’s reading-room provision requires
agencies to post certain categories of documents without a
request. See id. § 552(a)(2); Citizens for Responsibility &
Ethics in Washington v. DOJ (“CREW II”), 922 F.3d 480,
484, 488 (D.C. Cir. 2019); Jordan v. DOJ, 591 F.2d 753, 756
(D.C. Cir. 1978) (en banc) (observing that § 552(a)(2) records
must be made “automatically available for public inspection;
no demand is necessary”). The “invasion of a legally
protected interest,” Spokeo, Inc., 136 S. Ct. at 1548, occurs
when the agency decides not to post records qualifying for
§ 552(a)(2) treatment, or when a plaintiff visits the online
reading room and information required to be there is nowhere
to be found.10 Cf. Hajro, 811 F.3d at 1102–03 (explaining the
distinction between standing for “a specific FOIA request
claim and a pattern or practice claim”).
10
In any event, the record indicates that Plaintiffs did in fact make
requests for the documents at issue before litigation started.
ALDF V. USDA 19
Further, APHIS’s decision to remove categories of
records alleged to fall under § 552(a)(2) from its online
reading room has caused Plaintiffs the type of harm Congress
sought to prevent by obligating agencies to post these
documents. See Spokeo, Inc., 136 S. Ct. at 1549 (explaining
that the “judgment of Congress” is “important” to “whether
an intangible harm,” including informational harm,
“constitutes injury in fact”). The Supreme Court has
“declared that the Act was designed to create a broad right of
access to ‘official information.’” Reporters Comm. for
Freedom of the Press, 489 U.S. at 772 (quoting Mink,
410 U.S. at 80). FOIA is particularly concerned with records
that “shed[] light on an agency’s performance of its statutory
duties.” Id. at 773. Congress crafted the affirmative portion
of FOIA to prevent the proliferation of “secret law” and to
allow individuals “to know what their government is up to.”
See id. at 772 n.20, 773 (emphasis omitted) (quoting Mink,
410 U.S. at 105 (Douglas, J., dissenting)); NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 153–54 (1975). Bringing
§ 552(a)(2) records online and expanding the reading-room
requirement to cover frequently requested documents, as
accomplished by updates to FOIA, was specifically designed
to reduce the need for individual requests and the
corresponding lag time. See supra note 1. Yet the change of
policy has required Plaintiffs to make requests for copies of
the records previously publicly available—documents
Plaintiffs allege must be posted with no request necessary.
See 5 U.S.C. § 552(a)(2). We have no trouble concluding
that Plaintiffs have suffered the kind of harm Congress sought
to prevent.
That informational injuries may be redressed through
public disclosure of the information—rather than merely
providing copies of the information to individual
20 ALDF V. USDA
plaintiffs—is an unsurprising proposition given the traditional
link between an informational injury and statutory provisions
requiring publication of information. For example, the
Supreme Court has found standing to seek an order requiring
the DOJ to comply with the requirements of the Federal
Advisory Committee Act, a law requiring public notice of
advisory committee meetings and making advisory
committee minutes, records and reports public. Pub. Citizen,
491 U.S. at 446–51. The D.C. Circuit has assumed standing
under similar circumstances. See Friends of Animals v.
Jewell, 828 F.3d 989, 995 (D.C. Cir. 2016) (explaining that
plaintiffs “may well have informational standing to sue to
compel the publication of the relevant data—that is, to
compel compliance with [the Endangered Species Act’s]
disclosure requirement”).
In sum, “[t]he doctrine of standing asks whether a litigant
is entitled to have a federal court resolve his grievance,”
Kowalski v. Tesmer, 543 U.S. 125, 128 (2004), and in this
case, we answer yes. Plaintiffs have alleged they suffered
“‘an invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural
or hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting
Lujan, 504 U.S. at 560). Their inability to inspect documents
in virtual reading rooms harmed them in real-world ways;
their injuries are different from the injuries sustained by other
Americans who never regularly visited these online reading
rooms. Additionally, their alleged injuries are “fairly
traceable” to the agency’s action, and likely to be redressed
by their requested relief. See id. at 1547. Thus, we have
satisfied our “independent obligation” to assure ourselves that
Plaintiffs have standing. Summers, 555 U.S. at 499; Bennett,
520 U.S. at 168.
ALDF V. USDA 21
II.
FOIA vests in district courts the “jurisdiction to enjoin the
agency from withholding agency records and to order the
production of any agency records improperly withheld from
the complainant.” 5 U.S.C. § 552(a)(4)(B). This provision
cloaks district courts with the authority to order an agency to
post records in an online reading room. We reach this
conclusion by following familiar lodestars: text, structure,
and precedent.
A.
Whether federal courts may order agencies to comply
with FOIA’s reading-room provision depends on whether
such an order fits within FOIA’s jurisdictional grant. It is
axiomatic that we resolve questions of statutory interpretation
starting with the text.
FOIA creates “jurisdiction 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). The Supreme Court has
“stated time and again that courts must presume that a
legislature says in a statute what it means and means in a
statute what it says there.” Arlington Cent. Sch. Dist. Bd. of
Educ. v. Murphy, 548 U.S. 291, 296 (2006) (citation omitted).
Indeed, we have already defined the words “to enjoin” in
§ 552(a)(4)(B) as “[t]o legally prohibit or restrain by
injunction. To prescribe, mandate, or strongly encourage.”
Hajro, 811 F.3d at 1101 (quoting Enjoin, Black’s Law
Dictionary (10th ed. 2014)). We interpret the words “to
enjoin the agency from withholding agency records” to mean
what they say: FOIA authorizes district courts to stop the
22 ALDF V. USDA
agency from holding back records it has a duty to make
available, which includes requiring an agency to post
§ 552(a)(2) documents online. That the statute uses broad
words to vest expansive equitable authority in district courts
does not create ambiguity or vagueness.
Nor do we detect anything absurd about allowing district
courts to halt violations of FOIA’s clear command that
agencies “shall” make certain records available for public
inspection. See 5 U.S.C. § 552(a). To the contrary, reading
the words “jurisdiction to enjoin [an] agency from
withholding agency records,” to mean Congress withheld
jurisdiction to enjoin agencies from withholding agency
records would directly contradict the plain text. We may not
shirk our “sole function[,]” which “is to enforce [the statutory
language] according to its terms.” Arlington Cent. Sch. Dist.
Bd. of Educ., 548 U.S. at 296 (citation omitted).11
Not only does the plain meaning of the phrase
“jurisdiction to enjoin [an] agency from withholding agency
records” allow courts to order agencies to comply with their
§ 552(a)(2) obligations, but surrounding words confirm our
reading. “[T]he Court will avoid a reading which renders
some words altogether redundant.” Gustafson v. Alloyd Co.,
513 U.S. 561, 574 (1995). If, as APHIS argues, Congress
only authorized federal courts to “order the production” of
records to a particular complainant, then the judicial-review
11
Interpreting FOIA’s “explicit” jurisdictional language, the Supreme
Court has noted that the Senate Report explaining the addition of the
“enjoin” phrase stated “[t]he provision for enjoining an agency from
further withholding is placed in the statute to make clear that the district
courts shall have this power.” Renegotiation Bd. v. Bannercraft Clothing
Co., 415 U.S. 1, 18 & n.18 (1974) (quoting S. Rep. No. 88-1219, at 7
(1964)).
ALDF V. USDA 23
provision would not need the words “jurisdiction to enjoin the
agency from withholding agency records”; the latter phrase
would do all of the necessary work. See Hibbs v. Winn,
542 U.S. 88, 101 (2004); Bailey v. United States, 516 U.S.
137, 146 (1995) (rejecting interpretation that would have
made “uses” and “carries” redundant in statute penalizing
using or carrying a firearm in commission of offense).
APHIS responds, arguing that we cannot give meaning to
the “to enjoin” clause without rendering superfluous the “to
order production” clause, because authority to “enjoin the . . .
withholding” includes the power to “order the production” of
documents improperly withheld. Not necessarily. The
doctrine of noscitur a sociis, “which is that a word is known
by the company it keeps,” can work alongside the principle
against rendering some words altogether meaningless. See,
e.g., Gustafson, 513 U.S. at 574–76.12 Here, the judicial
review provision uses the word “to” twice in the same
sentence, providing “jurisdiction to enjoin . . . and to order.”
5 U.S.C. § 552(a)(4)(B) (emphasis added). We find this
significant. After all, “words are chameleons, which reflect
12
Most often, noscitur a sociis applies when interpreting words in a
list, and helps us resolve ambiguities by identifying a common trait among
words and ruling out meanings that wouldn’t make sense. See, e.g., Yates
v. United States, 135 S. Ct. 1074, 1081 (2015) (determining a fish is not
a “tangible object” for purposes of obstruction of justice statute).
However, we have also used this doctrine to “avoid ascribing to one word
a meaning so broad that it is inconsistent with its accompanying words,”
Gustafson, 513 U.S. at 575, because “a word is given more precise content
by the neighboring words with which it is associated,” United States v.
Williams, 553 U.S. 285, 294 (2008). Thus, in Gustafson, the Court
determined the word “communication” means a public communication,
not any communication, because it appeared in a list of other words
referring to “wide dissemination” and a broader definition would render
other words redundant. 513 U.S. at 574–576.
24 ALDF V. USDA
the color of their environment.” Yates, 135 S. Ct. at 1083
(quoting Comm’r v. Nat’l Carbide Corp., 167 F.2d 304, 306
(2d Cir. 1948)). Where we can breathe life into every word
of a sentence without having one phrase cannibalize another,
we should. Thus, if the authority “to enjoin the agency from
withholding” includes the authority to order the agency to
produce copies of the withheld records to a particular person,
the solution is to read the broader “to enjoin” clause as
excluding the power created by the more specific “to order”
clause to avoid superfluity.13
APHIS eschews reliance on the precise wording of the
provision, and argues instead that we should rely on
Congress’s decision to use the word “and” instead of “or” to
separate the words “to enjoin” and “to order.” That is, the
agency believes the “and” collapses the two parts of the
sentence into a single type of order, one that “enjoin[s] the
. . . withholding . . . and . . . order[s] the production of any
agency records improperly withheld from the complainant.”
See 5 U.S.C. § 552(a)(4)(B). However, this interpretation
exaggerates rather than minimizes the superfluity problem;
the word “and” finds itself between two infinitives (“to enjoin
. . . and to order”), and both sides of the “and” repeat the
words “agency,” “records,” and forms of the word
13
Indeed, the phrase “to enjoin the agency from withholding agency
records” may very well refer to equitable prospective relief, whereas
authority “to order the production of agency records improperly withheld”
refers to equitable retrospective relief. See 5 U.S.C. § 552(a)(4)(B)
(emphasis added); cf. Hajro, 811 F.3d at 1101 (“The plain language
clearly contemplates declaratory and injunctive relief, which is what
Plaintiffs seek.”); DOJ v. Tax Analysts, 492 U.S. 136, 153 n.13 (1989)
(“[O]nce an agency has complied with the subsection (a)(1) and (a)(2)
obligations, it can no longer be charged with ‘withholding’ the relevant
records.”).
ALDF V. USDA 25
“withhold.” See 5 U.S.C. § 552(a)(4)(B). In any event, “the
mere possibility of clearer phrasing cannot defeat the most
natural reading of a statute; if it could (with all due respect to
Congress), we would interpret a great many statutes
differently than we do.” Caraco Pharm. Labs., Ltd. v. Novo
Nordisk A/S, 566 U.S. 399, 416 (2012).14
B.
FOIA’s structure confirms what the text of the judicial-
review provision makes plain: district judges can order
agencies to comply with their obligations under § 552(a)(2).
To recap, FOIA’s first provisions impose three chief duties on
agencies, depending on the documents involved. 5 U.S.C.
§ 552(a)(1)–(3). Then, FOIA creates the machinery to
address violations, such as authorizing judicial review, id.
§ 552(a)(4)(B), requiring the Office of Special Counsel to
investigate particularly significant violations, id.
§ 552(a)(4)(F), and implementing reporting requirements to
bolster congressional oversight, see, e.g., id. § 552(e)(1)(Q)
(requiring agencies to report the number of records made
available for public inspection under § 552(a)(2)).
We start from the basic proposition that FOIA expressly
contemplates judicial review of § 552(a)(2) violations. Cf.
14
Even if APHIS’s reading were correct, the judicial-review provision
contains no clear command that limits how a district court may order “the
production of any agency records . . . withheld from the complainant.”
5 U.S.C. § 552(a)(4)(B). That is, Plaintiffs here are asking the district
court to determine whether agency records have been “improperly
withheld” from Plaintiffs by the agency’s failure to make the records
available for reading-room inspection. A district court could order “the
production” by ordering the agency to post records in an online reading
room.
26 ALDF V. USDA
Citizens for Responsibility & Ethics in Washington v. DOJ
(“CREW I”), 846 F.3d 1235, 1245 (D.C. Cir. 2017) (“FOIA
contains an express private right of action.”). To conclude
otherwise would conflict with the plain text of the judicial-
review provision and the statute’s “duty-breach” structure.
Indeed, immediately following the language creating
jurisdiction “to enjoin” agencies from withholding records,
FOIA expressly provides the standard for reviewing
“feasibility” under § 552(a)(2)(C). 5 U.S.C. § 552(a)(4)(B).15
Although the parties seem to agree with this basic
proposition, they disagree about what relief a district court
may grant in § 552(a)(2) cases. APHIS argues that the
judicial-review provision restricts courts to ordering agencies
to produce copies of the records to an individual plaintiff.
Yet this reading collapses an agency’s affirmative
responsibility to post certain records (identified in the statute
by Congress) into an agency’s responsibility to respond to
requests for copies of documents under § 552(a)(3).
However, § 552(a)(3) does not apply to “records made
available under paragraphs (1) and (2) of this subsection.”
The idea of § 552(a)(3) annexing § 552(a)(2) for purposes of
judicial review creates particular problems in the case of
frequently requested documents required to be posted under
§ 552(a)(2)(D). APHIS’s interpretation would mean FOIA
deliberately brings certain § 552(a)(3) records into
15
Additional FOIA provisions anticipate judicial review of an
agency’s determination under § 552(a)(2). See, e.g., id. § 552(a)(6)(C)(i)
(deeming a “person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection” to “have exhausted his
administrative remedies with respect to such request if the agency fails to
comply with the applicable time limit provisions”); § 552(a)(6)(A)
(providing the timelines for when an agency must respond to requests “for
records made under paragraph (1), (2), or (3) of this subsection”).
ALDF V. USDA 27
§ 552(a)(2)—specifically to preempt § 552(a)(3)
requests—yet, if an agency shrugs that congressional
command, the statute forces plaintiffs right back into the
requests and backlogs Congress sought to avoid in the first
place.
APHIS next argues that district courts only have authority
to order agencies to produce copies of § 552(a)(2) records to
particular plaintiffs, because the statute authorizes district
courts to refer certain cases that raise questions about the
agency’s conduct to the Office of Special Counsel, but only
if “the court orders the production of any agency records
improperly withheld from the complainant.” Id.
§ 552(a)(4)(F)(i). APHIS argues it would be illogical for
Congress to include such a provision if courts did in fact have
authority under the “to enjoin” clause to order agencies to
post § 552(a)(2) documents in online reading rooms, because
a court “must do so at the price of losing its authority to
institute disciplinary proceedings.” However, the provision
simply allows district courts, when ordering “records
improperly withheld” to be produced, to flag when “agency
personnel acted arbitrarily or capriciously,” because these
additional written findings trigger a mandatory duty for the
Office of Special Counsel to investigate.16 See id.
16
The relevant part of § 552(a)(4)(F) reads:
Whenever the court orders the production of any
agency records improperly withheld from the
complainant and assesses against the United States
reasonable attorney fees and other litigation costs, and
the court additionally issues a written finding that the
circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
28 ALDF V. USDA
§ 552(a)(4)(F). We see nothing irrational about isolating a
particular evil—bureaucrats arbitrarily denying requests for
copies of documents from particular people—for mandatory
investigation. Moreover, as “masters of their complaints,”
Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 595 (2013),
plaintiffs are free to seek relief that would not necessarily
trigger a mandatory investigation.
Finally, APHIS argues that the judicial-review provision
must only apply if there is a “request for records,” because
the provisions laying out the process for exhaustion of
administrative remedies refer specifically to “request[s] [for
records] under paragraph (1), (2), or (3) of this subsection.”
See 5 U.S.C. § 552(a)(6). However, the judicial-review
provision does not make a “request for records” a
jurisdictional prerequisite. See Yagman, 868 F.3d at 1083.
Although the enumerated provisions of the reading-room
requirement say nothing about making a request to access
records posted in an online reading room, “request[s] [for
records] under paragraph . . . (2)” could refer to the
undifferentiated text at the bottom of § 552(a)(2), which
allows citizens to request a copy of the general index each
agency must make available for public inspection. See
5 U.S.C. § 552(a)(2) (requiring agencies to “provide copies
of such index on request at a cost not to exceed the direct cost
of duplication”).
Counsel shall promptly initiate a proceeding to
determine whether disciplinary action is warranted
against the officer or employee who was primarily
responsible for the withholding.
ALDF V. USDA 29
C.
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. First, the Supreme Court has
interpreted the equitable power of district courts under FOIA
broadly. See Bannercraft Clothing Co., 415 U.S. at 20
(“With the express vesting of equitable jurisdiction in the
district court by § 552(a), there is little to suggest, despite the
Act’s primary purpose, that Congress sought to limit the
inherent powers of an equity court.”). In fact, in Bannercraft,
the Court even went so far as to note that the “enjoining”
phrase in the judicial review provision was included to make
clear that district courts had this power. Id. at 18 n.18. Our
circuit has since interpreted and applied the teaching of
Bannercraft, stating definitively that “Congress did not intend
to limit the court’s exercise of its inherent equitable powers
where consistent with the FOIA.” Long v. IRS, 693 F.2d 907,
909 (9th Cir. 1982).17
In addition to broad equity powers to provide relief for
FOIA violations, our circuit has recognized that courts are the
17
We do not suggest that a district court’s authority to order agencies
to comply with their § 552(a)(2) obligations stems exclusively from its
“inherent equitable powers.” See id. Nor do we suggest that, just because
a district court can order agencies to comply with § 552(a)(2), it has no
discretion in designing this relief. See Tenn. Valley Auth. v. Hill, 437 U.S.
153, 193 (1978) (“[A] federal judge . . . is not mechanically obligated to
grant an injunction for every violation of law.”). Our point is simply that
Bannercraft and Long explain the long rein district courts enjoy vis-a-vis
designing the appropriate remedies for FOIA violations. See Bannercraft
Clothing Co., 415 U.S. at 20; Long, 693 F.2d at 909.
30 ALDF V. USDA
“enforcement arm” of FOIA, meaning we have “the
responsibility of ensuring the fullest responsible disclosure.”
See Long, 693 F.2d at 909; cf. Yagman, 868 F.3d at 1080
(concluding agencies must construe FOIA requests liberally
to achieve the core purpose of FOIA). To ensure district
courts live up to this special obligation, we have specifically
instructed district courts to consider equitable relief when
necessary to bar future FOIA violations. For example, in
Long, we considered an Internal Revenue Service (“IRS”)
policy of delaying the release of requested documents to force
individuals to file FOIA lawsuits; upon filing, the IRS would
“voluntarily” release the documents. 693 F.2d at 908. The
Long plaintiffs requested injunctive relief to prevent these
delays, which the district court denied. Id. On appeal, we
determined that “the IRS’ contention that the district court
lacks authority to grant the requested injunctive relief is
without merit.” Id. at 909. “[W]here the district court finds
a probability that alleged illegal conduct will recur in the
future, an injunction may be framed to bar future violations
that are likely to occur.” Id.
APHIS attempts to distinguish Long by arguing that
Long’s injunctive relief was not “additional” relief to which
plaintiffs were not entitled, because the injunction remedied
prolonged delays in responding to FOIA requests. See id.
at 908–09. We disagree. This argument simply assumes
APHIS is correct that FOIA withholds authority to order
compliance with the reading-room requirement. Within its
grant of authority to district courts “to enjoin the agency from
withholding agency records,” 5 U.S.C. § 552(a)(4)(B), FOIA
authorizes district courts to craft relief that includes requiring
an agency to post § 552(a)(2) documents online.
ALDF V. USDA 31
Long’s legacy lives on. Recently, we explained that Long
is an example of a “claim that an agency policy or practice
will impair the party’s lawful access to information in the
future.” Hajro, 811 F.3d at 1103 (quoting Payne Enters., Inc.
v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)). Like
Plaintiffs’ § 552(a)(2) claim, policy or practice claims stem
from an agency’s policy of violating FOIA rather than from
the results of a particular request (such as a claim the agency
has withheld requested material under an inapplicable
exemption). That is, an agency cannot moot a pattern or
practice claim by providing the requested documents. Id.;
Payne Enters., Inc., 837 F.2d at 491; see also Animal Legal
Def. Fund v. USDA, No. 18-16327, 2019 WL 3770822, at *3
(9th Cir. Aug. 12, 2019). We cannot square our precedents
with the agency’s position that courts have no authority
beyond ordering the agency to produce a copy of a requested
document to the requester.
D.
APHIS’s chief argument against allowing district courts
to order compliance with the reading-room provisions relies
on the D.C. Circuit’s decision in CREW I. See 846 F.3d at
1238–44. We appreciate our sister circuit’s analysis in
CREW I, but do not agree that FOIA so constrains judicial
enforcement of the reading-room provision.
At one time, the D.C. Circuit allowed district judges to
order agencies to produce records for public inspection per
FOIA’s reading-room requirements. See e.g., Am. Mail Line,
Ltd. v. Gulick, 411 F.2d 696, 703 (D.C. Cir. 1969) (“Thus, we
conclude that the Board’s April 11 ruling clearly falls within
the confines of 5 U.S.C. § 552(a)(2)(A) and consequently it
must be produced for public inspection.”); Merrill v. Fed.
32 ALDF V. USDA
Open Mkt. Comm. of the Fed. Reserve Sys., 413 F. Supp. 494,
506 (D.D.C. 1976) (“Defendant’s other policy actions are
subject to subsection (a)(2) of the Act and in accordance with
that subsection must be made available for public inspection
and copying unless promptly published.”), aff’d, 565 F.2d
778 (D.C. Cir. 1977), vacated on other grounds, 443 U.S. 340
(1979).
Then the D.C. Circuit considered Kennecott Utah Copper
Corp. v. U.S. Department of Interior, 88 F.3d 1191 (D.C. Cir.
1996). Kennecott analyzed whether a court could order an
agency to publish a final regulation in the Federal Register,
as required by 5 U.S.C. § 552(a)(1). Id. at 1201–02.18 The
D.C. Circuit concluded such relief did not fall within a court’s
authority to “order the production of any agency records
improperly withheld from the complainant” under
§ 552(a)(4)(B). Id. at 1203. But it did not examine potential
authority under the clause providing jurisdiction “to enjoin
the agency from withholding any records.” Id. Moreover,
Kennecott involved a violation of § 552(a)(1)’s requirement
to publish certain records in the Federal Register, whereas
this case involves making certain records available for public
inspection under § 552(a)(2). Making a record available for
public inspection is synonymous with producing a record for
public inspection. See Gulick, 411 F.2d at 703 (determining
18
Kennecott is a midnight regulation case. Weeks before a
presidential transition, the Department of the Interior (“DOI”)
promulgated a rule concerning certain hazardous wastes and sent it to the
Office of the Federal Register for publication in the Federal Register. Id.
With a new president in office, the DOI then withdrew the regulation
before final publication. Id. The DOI promulgated a new rule, which
Kennecott Copper challenged on procedural grounds, requesting the court
to declare the earlier regulations valid and to direct the government to
publish them in the Federal Register. Id.
ALDF V. USDA 33
a record “falls within” § 552(a)(2) and “consequently it must
be produced for public inspection”). Thus Kennecott
appeared to preserve that circuit’s earlier holdings (in Merrill
and Gulick) allowing district courts to order agencies to
produce records for public inspection, because it explicitly
distinguished Merrill as a case where the district court
“ordered ‘production’ [for public inspection] of . . . records,
not publication [in the Federal Register].” Kennecott, 88 F.3d
at 1203 (citing Merrill, 413 F. Supp. at 507).
Next came CREW I. In that case, CREW filed suit under
the APA to compel the DOJ’s Office of Legal Counsel
(“OLC”) to disclose OLC opinions under FOIA’s reading-
room provision. CREW I, 846 F.3d at 1240. The D.C.
Circuit affirmed the district court’s dismissal of the suit,
determining that CREW had not satisfied a predicate
requirement for bringing suit under the APA because there
was an “adequate remedy” under FOIA. Id. at 1244–1246;
5 U.S.C. § 704. The D.C. Circuit also determined that
FOIA’s “adequate remedy” extends to producing the records
“only to CREW, not disclosure to the public.” CREW I,
846 F.3d at 1244.
Thus, CREW I may have changed D.C. Circuit FOIA
jurisprudence by relying on Kennecott—which concerned
FOIA obligations to publish certain records in the Federal
Register, 5 U.S.C. § 552(a)(1)—rather than its earlier cases,
which had granted relief for violations of the reading-room
provision. Moreover, CREW I acknowledged that Kennecott
did not discuss the scope of the statutory language broadly
authorizing injunctions against withholding of records, but
concluded that Kennecott “implicitly” considered that
language and limited the “scope of section 552(a)(4)(B) as a
whole.” CREW I, 846 F.3d at 1244. In particular, CREW I
34 ALDF V. USDA
relied on Kennecott’s statement that § 552(a)(4)(B) “is aimed
at relieving the injury suffered by the individual complainant,
not by the general public” because “[i]t allows district courts
to order ‘the production of any agency records improperly
withheld from the complainant,’ not agency records withheld
from the public.” Id. at 1243 (alteration and emphasis in
original) (quoting Kennecott, 88 F.3d at 1203 (citing 5 U.S.C.
§ 554(a)(4)(B))).
We decline to follow our sister circuit’s decision in
CREW I for several reasons. First, CREW I renders the
reading-room provision into precatory language, despite
§ 552(a)(2) imposing a mandatory duty for agencies to make
certain records “available for public inspection” and
§ 552(a)(4)(B) granting “jurisdiction to enjoin the agency
from withholding agency records.” We can easily imagine
the significant implications of rendering § 552(a)(2) a dead
letter; an agency would have no enforceable duty to post its
important staff manuals, or its interpretation of the statute it’s
charged with enforcing, or its final opinions in agency
adjudication. See id. § 552(a)(2).
Second, the argument that FOIA’s judicial-review
provision is limited to “relieving the injury suffered by the
individual complainant, not by the general public” is a red
herring. See CREW I, 846 F.3d at 1243 (quoting Kennecott,
88 F.3d at 1203). The injuries complained of here are
injuries sustained by individuals. Ordering an agency to
upload records that FOIA mandates agencies will post in
reading rooms would provide relief to plaintiffs, like those
here, injured by the agency’s failure to make those records so
available.
ALDF V. USDA 35
Third, CREW I failed to appreciate how courts enforce
other provisions of the U.S. Code that require agencies to post
or publish records. See, e.g., Ctr. for Biological Diversity v.
Kempthorne, 466 F.3d 1098, 1099–1103 (9th Cir. 2006)
(“[T]he [Endangered Species Act] . . . expressly directs the
[U.S. Fish and Wildlife Service], when making a ‘warranted
but precluded’ finding to ‘publish such finding in the Federal
Register, together with a description and evaluation of the
reasons and data on which the finding is based.’ As this
wasn’t done, we reverse for remand to the Service.” (quoting
16 U.S.C. § 1533(b)(3)(B))). Just as “shall” means parts of
the warranted but precluded finding “[are]n’t optional,” id. at
1103, FOIA unequivocally mandates that agencies “shall
make available” certain documents in virtual reading rooms.
5 U.S.C. § 552(a)(2); Dep’t of Air Force, 425 U.S. at 361.
(“[T]he Act repeatedly states that official information shall be
made available to the public, for public inspection.”
(quotation marks omitted)).
Finally, we cannot ignore how an even newer D.C. Circuit
case, CREW II, creates some tension with CREW I. Again,
CREW sought to compel the OLC to “make available all of
its formal written opinions . . . under the so-called ‘reading-
room’ provision.” CREW II, 922 F.3d at 483. But this time,
CREW sued under FOIA. Id. at 485. The district court
dismissed the complaint for failure to state a claim, and the
D.C. Circuit affirmed. Id. at 483. However, in so doing, the
D.C. Circuit seemed to read CREW I narrowly, as though that
earlier decision was limited to the proposition that “CREW
improperly brought its claim under the [APA] instead of
FOIA’s judicial-review provision.” Id. at 485 (citation
36 ALDF V. USDA
omitted).19 Thus, D.C. Circuit law on this issue does not
seem settled.
III.
APHIS urges us to affirm the district court’s dismissal on
an alternative ground: Plaintiffs have not exhausted their
FOIA claim. However, judicial power to adjudicate a claim
that an agency has violated § 552(a)(2)’s obligation to post
agency records online does not turn on a request. See
Yagman, 868 F.3d at 1083 (“[E]xhaustion cannot be
considered a jurisdictional requirement.”); CREW I, 846 F.3d
at 1240 (“[A] plaintiff may bring an action under FOIA to
enforce the reading-room provision, and may do so without
first making a request for specific records under section
552(a)(3).”). Indeed, APHIS itself concedes that exhaustion
poses no jurisdictional bar.
Moreover, the district court dismissed the case for lack of
subject matter jurisdiction without addressing the exhaustion
question, so the issue is not even properly before us. As an
appellate court, we generally prefer to allow district courts to
resolve issues first, particularly when they involve questions
of fact. See Hawkins v. Kroger Co., 906 F.3d 763, 773 &
n.11 (9th Cir. 2018). Accordingly, we leave it to the district
19
For example, CREW II does not describe either CREW’s requested
relief or § 552(a)(2) in terms indicating CREW was limited to seeking
copies of the OLC opinions. See id. at 484 (describing how CREW “seeks
to compel disclosure” of OLC opinions); id. at 486 (explaining that
agencies “improperly” withhold records by “fail[ing] to comply with one
of FOIA’s ‘mandatory disclosure requirements’” (quoting Tax Analysts,
492 U.S. at 150)). Despite the fact that courts are “not free to pretermit
the question” of subject matter jurisdiction, Ashcroft v. Iqbal, 556 U.S.
662, 671 (2009), CREW II does not address jurisdiction.
ALDF V. USDA 37
court on remand to decide in the first instance whether
Plaintiffs have exhausted their reading-room claim, or
whether such exhaustion would be futile.
IV.
The district court’s order dismissing Plaintiffs’ case for
lack of subject matter jurisdiction also dismissed Plaintiffs’
APA claims. Plaintiffs’ first APA claim hinges on their
allegation that, in the event we conclude there is no authority
for district courts to order agencies to comply with FOIA’s
reading-room provision, then APHIS’s failure to post
categories of records previously available on the databases
constitutes a “failure to act,” reviewable as a “final agency
action for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704. Having concluded that FOIA
authorizes district courts to provide the relief Plaintiffs
request, we affirm the district court’s dismissal of the first
APA claim.
We affirm the district court’s dismissal of Plaintiffs’
second APA claim for similar reasons. Plaintiffs’ second
APA claim alleges that the agency’s decision to delete the
databases constitutes final agency action reviewable under the
APA’s “arbitrary and capricious” standard. Id. § 706.
Plaintiffs’ allegations that FOIA’s reading-room provision
applies to all of the records in this case unlocked the gates for
judicial review under FOIA. Because FOIA authorizes
district courts to order agencies to comply with the reading-
room provision and supplies the standard for reviewing such
38 ALDF V. USDA
claims, the potential for meaningful relief under FOIA
displaces the APA’s catch-all cause of action. See id. § 704.
REVERSED in part, AFFIRMED in part, and
REMANDED.20
CALLAHAN, Circuit Judge, dissenting in part:
For the reasons set forth by the D.C. Circuit in Citizens
for Responsibility and Ethics in Washington v. Department of
Justice, 846 F.3d 1235, 1244–46 (D.C. Cir. 2017), I would
hold that the Freedom of Information Act (“FOIA”) provides
an adequate alternate remedy and that “courts lack authority
under FOIA to order agencies to ‘make [records] available for
public inspection.’” Id. at 1246 (alteration in original)
(quoting 5 U.S.C. § 552(a)(2)). This holding is founded on
the determination that “Section 552(a)(4)(B) . . . ‘is aimed at
relieving the injury suffered by the individual complainant,
not by the general public’ as ‘[i]t allows district courts to
order “the production of any agency records improperly
withheld from the complainant,” not agency records withheld
from the public.’” Id. at 1243 (alteration in original) (quoting
Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d
1191, 1203 (D.C. Cir. 1996)).
Contrary to the majority’s position that this distinction is
a “red herring,” this is the crux of the dispute, as stated in
plaintiffs’ own words: “In this case, plaintiffs have
demonstrated informational injuries that can only be
remedied by production of the disputed records to the public
20
Each party shall bear its own costs on appeal.
ALDF V. USDA 39
at large.” (Emphasis added). Plaintiffs argue their injury is
“based on the public’s inability to access the records.” This
is exactly what the D.C. Circuit rejected: section 552(a)(2)
allows “an injunction that would . . . require disclosure of
documents . . . only to CREW, not disclosure to the public.”
846 F.3d at 1244. This is also the basis for the district court’s
dismissal for lack of subject matter jurisdiction: “courts
cannot compel agencies to make documents available to the
public at large under FOIA’s reading room provision” and
thus “this court lacks jurisdiction to hear plaintiffs’ FOIA
claim.” Ordering the publication of documents to the
individual plaintiffs is not the same as ordering the
publication of documents to the public at large. Because the
latter is foreclosed by section 552(a)(4)(B), I would affirm
the district court’s dismissal of plaintiffs’ FOIA claim for
lack of subject matter jurisdiction.