Aldf v. Usda ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANIMAL LEGAL DEFENSE FUND, No. 18-16327
Plaintiff-Appellant,
D.C. No.
v. 4:17-cv-03903-PJH
UNITED STATES DEPARTMENT OF
AGRICULTURE; ANIMAL AND OPINION
PLANT HEALTH INSPECTION
SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted June 12, 2019
Anchorage, Alaska
Filed August 12, 2019
Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge W. Fletcher
2 ALDF V. USDA
SUMMARY*
Freedom of Information Act
The panel affirmed the district court’s summary judgment
in favor of the U.S. Department of Agriculture and its sub-
agency, the Animal and Plant Health Inspection Service, in a
Freedom of Information Act (“FOIA”) action brought by the
Animal Legal Defense Fund (“ALDF”).
The ALDF filed a complaint challenging the agency’s
practice of denying requests for expedited processing of
Animal Welfare Act-related FOIA requests. ALDF sought a
declaration that the term “individual” in 5 U.S.C.
§ 552(a)(6)(E)(v)(I) includes an animal.
The panel held that the district court had jurisdiction to
review the FOIA suit. Specifically, the panel held that
ALDF’s suit was not moot because ALDF asserted a “pattern
or practice” FOIA claim alleging that the agency’s policy or
practice would impede ALDF’s lawful access to information
in the future. The panel further held that FOIA’s jurisdiction-
stripping provision did not divest the district court of
jurisdiction. The panel held that where, as here, a plaintiff
asserted a “pattern or practice” claim that satisfied the three-
pronged test of Hajro v. U.S. Citizenship & Immigration
Servs., 811 F.3d 1086, 1104-06 (9th Cir. 2016), 5 U.S.C.
§ 552(a)(6)(E)(iv) did not bar the plaintiff’s action.
*
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
Interpreting the word “individual,” as used in 5 U.S.C.
§ 552(a)(6)(E)(v)(I), the panel held that, where, as here,
“individual” is used as a noun with no corresponding group
or category, its plain meaning is “human being.” The panel
rejected ALDF’s assertion that the term “individual” in this
context also included animals.
COUNSEL
Matthew G. Liebman (argued), Animal Legal Defense Fund,
Cotati, California; Anthony T. Eliseuson, Animal Legal
Defense Fund, Chicago, Illinois; Daniel H. Waltz, Animal
Legal Defense Fund, Washington, D.C.; for Plaintiff-
Appellant.
John Samuel Koppel (argued) and Mark B. Stern, Appellate
Staff; Alex G. Tse, United States Attorney; Joseph H. Hunt,
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellees.
OPINION
W. FLETCHER, Circuit Judge:
The Freedom of Information Act (“FOIA”) provides for
expedited processing of records where “failure to obtain
requested records on an expedited basis . . . could reasonably
be expected to pose an imminent threat to the life or physical
safety of an individual.” 5 U.S.C. § 552(a)(6)(E)(v)(I). We
are asked to decide whether the term “individual” in this
context includes an animal as well as a human being. We
4 ALDF V. USDA
conclude it does not. We accordingly affirm the district
court’s grant of summary judgment in favor of Defendants-
Appellees U.S. Department of Agriculture and its sub-agency,
the Animal and Plant Health Inspection Service (collectively,
“USDA”).
I. Background
Plaintiff-Appellant Animal Legal Defense Fund
(“ALDF”) is a non-profit organization dedicated to using the
legal system to improve the lives and promote the interests of
animals.
Since 2014, ALDF had been involved in state court
litigation concerning a tiger named Tony who was being
displayed in a cage at a Louisiana truck stop. In March 2017,
ALDF learned from a veterinarian with special expertise in
tigers that Tony was suffering from serious health issues. On
April 7, 2017, ALDF asked USDA to carry out an Animal
Welfare Act (“AWA”) inspection to ascertain whether Tony
was getting adequate care. USDA responded on April 10 in
a letter stating, “If you wish to know the results of our
findings, you must send a request, in writing, to our Freedom
of Information Act Office.” AWA inspection reports had
previously been posted on USDA’s website. However,
following a policy change in February 2017, inspection
reports that have not received final adjudication are available
only by FOIA request. See USDA Announcement, Updates
to APHIS’ Website Involving Animal Welfare Act and Horse
Protection Act Compliance Information (Feb. 15, 2017).
ALDF submitted a FOIA request on May 4, 2017, for
records concerning its inspection request. ALDF sought
expedited processing of its request pursuant to 5 U.S.C.
ALDF V. USDA 5
§ 552(a)(6)(E)(v)(I), asserting that failure to expedite the
records could reasonably be expected to pose an imminent
threat to Tony’s life and physical safety. On May 11, 2017,
USDA denied the expedited processing request on the ground
that “Tony the Tiger is not considered an ‘individual’” under
7 C.F.R. § l.9(b)(l), the USDA regulation implementing
§ 552(a)(6)(E)(v)(I). ALDF filed an administrative appeal,
but USDA did not issue a determination in that appeal.
On July 11, 2017, ALDF filed a complaint in district court
challenging USDA’s practice of denying requests for
expedited processing of AWA-related FOIA requests. The
complaint sought a declaration that the term “individual” in
§ 552(a)(6)(E)(v)(I) includes an animal, and a permanent
injunction requiring USDA to treat animals as “individuals”
for the purposes of expedited processing under the statute.
While the case was pending, ALDF made additional
FOIA requests for expedited processing of USDA records
related to animals protected under the AWA. On July 20,
2017, ALDF requested expedited processing of records
related to the Puerto Rico Zoo. On the same day, ALDF
requested expedited processing of records regarding arctic
foxes living at Deer Haven Mini Zoo in Maryland. On
August 18, 2017, ALDF requested expedited processing of
records pertaining to Cricket Hollow Zoo, a roadside zoo in
Iowa. USDA rejected the first two requests on the ground
that “the term individual in this context encompasses human
beings and not animals” and had not responded to the third
request at the time the record was made in this appeal.
In response to ALDF’s request for records about Tony,
USDA released four pages of responsive records on August
14, 2017, over three months after the request was made. A
6 ALDF V. USDA
month and a half later, on October 3, 2017, USDA informed
ALDF that it had located additional records responsive to
ALDF’s request and would release the records by October 20,
2017. On October 16, 2017, the truck stop owner euthanized
Tony. Four days later, USDA provided forty-three pages of
records to complete its response to ALDF’s FOIA request
regarding Tony.
The parties filed cross-motions for summary judgment.
The district court granted summary judgment to USDA on
May 25, 2018, holding that the term “individual” in FOIA’s
expedited processing provision does not include animals.
ALDF timely appealed.
II. Jurisdiction
We ordinarily have jurisdiction under 28 U.S.C. § 1291
to review a summary judgment order. If the district court
lacked subject matter jurisdiction, however, “we would have
jurisdiction to correct the jurisdictional error, but not to
entertain the merits of an appeal.” Matheson v. Progressive
Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
In the district court, USDA argued that the court lacked
subject matter jurisdiction over the suit for two reasons: first,
that the case was moot and no longer a case or controversy
under Article III and, second, that FOIA’s jurisdiction-
stripping provision applied. The district court disagreed and
held that it had jurisdiction. USDA does not contest this
ruling on appeal. However, “we are obliged to raise sua
sponte issues concerning district courts’ subject matter
jurisdiction.” Randolph v. Budget Rent-A-Car, 97 F.3d 319,
323 (9th Cir. 1996). We hold that the district court had
subject matter jurisdiction.
ALDF V. USDA 7
A case is moot if “the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the
outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
USDA argued below that ALDF’s suit was moot because the
agency had provided all the records responsive to ALDF’s
request, with the result that the court could no longer “grant
any effectual relief” to ALDF. See Knox v. Serv. Emps. Int’l
Union, 567 U.S. 298, 307 (2012) (internal quotation marks
omitted). We agree with the district court. Because ALDF
asserted a “pattern or practice” FOIA claim, its suit is not
moot.
In FOIA cases, we distinguish between “specific request”
claims and “pattern or practice” claims. Hajro v. U.S.
Citizenship & Immigration Servs., 811 F.3d 1086, 1102–03
(9th Cir. 2016). A “specific request” claim seeks production
of a particular record that has allegedly been improperly
withheld. Id. at 1103 (citing Kissinger v. Reporters Comm.
for Freedom of the Press, 445 U.S. 136, 150 (1980)). By
contrast, a “pattern or practice” claim alleges that “an agency
policy or practice will impair the party’s lawful access to
information in the future.” Id. (quoting Payne Enters., Inc. v.
United States, 837 F.2d 486, 491 (D.C. Cir. 1988)).
A “specific request” claim is mooted by the agency’s
production of all non-exempt requested records. Id. But
where, as here, “a plaintiff alleges a pattern or practice of
FOIA violations and seeks declaratory or injunctive relief,”
those claims are not mooted by the production of requested
documents if the plaintiff can show: “(1) the agency’s FOIA
violation was not merely an isolated incident, (2) the plaintiff
was personally harmed by the alleged policy, and (3) the
plaintiff himself has a sufficient likelihood of future harm by
the policy or practice.” Id.
8 ALDF V. USDA
Though we conclude on the merits that no FOIA violation
occurred, the violations that ALDF alleges meet the three
prongs of Hajro’s “pattern or practice” test. First, the FOIA
violation alleged with respect to Tony was not an isolated
incident. ALDF alleges other instances in which USDA
denied expedited processing to ALDF based on USDA’s
definition of “individual.” See id. at 1104 (noting that a
plaintiff can satisfy the first prong by “provid[ing] evidence
that he has been subjected to a FOIA violation more than
once”). Second, ALDF was “personally harmed” because it
filed several requests and was denied expedited processing on
the basis of the challenged policy. See id. at 1106 (holding
that prong two is met if the plaintiff “personally filed a
request, and that request was delayed”). Third, ALDF is
likely to be harmed in the future by USDA’s policy. ALDF’s
mission centers on animal welfare, and ALDF is likely to
make future FOIA requests where it believes there is “an
imminent threat to the life or physical safety” of an animal.
See id. (holding that the third prong is met if the plaintiff
“will likely file more FOIA requests with [the agency] in the
future”). We therefore hold that the case is not moot.
USDA also argued below that FOIA’s jurisdiction-
stripping provision divested the district court of jurisdiction.
That provision states, “A district court of the United States
shall not have jurisdiction to review an agency denial of
expedited processing of a request for records after the agency
has provided a complete response to the request.” 5 U.S.C.
§ 552(a)(6)(E)(iv). So far as we are aware, no court has yet
analyzed this provision. We hold today that where a plaintiff
asserts a “pattern or practice” claim that satisfies Hajro’s
three-pronged test, § 552(a)(6)(E)(iv) does not bar the
plaintiff’s action. In a “pattern or practice” claim seeking
declaratory or injunctive relief, the district court is not
ALDF V. USDA 9
reviewing a particular denial of expedited processing.
Instead, it is reviewing the agency’s anticipated denial of
expedited processing requests under similar circumstances in
the future. The district court has jurisdiction to review such
a claim.
III. Discussion
We review de novo a district court’s grant of summary
judgment in a FOIA case. See ALDF v. FDA, 836 F.3d 987,
990 (9th Cir. 2016) (en banc).
This case turns on the meaning of the word “individual”
as used in FOIA’s expedited processing provision. FOIA
requires agencies to provide for expedited processing of
records requests if the requestor “demonstrates a compelling
need.” 5 U.S.C. § 552(a)(6)(E)(i)(I); 7 C.F.R. § 1.9(b)
(USDA implementing regulation). As relevant here, “the
term ‘compelling need’ means . . . that a failure to obtain
requested records on an expedited basis under this paragraph
could reasonably be expected to pose an imminent threat to
the life or physical safety of an individual[.]” Id.
§ 552(a)(6)(E)(v)(I) (emphasis added); see also 7 C.F.R.
§ 1.9(b)(1). FOIA does not define “individual.”
“When a statute does not define a term, we typically ‘give
the phrase its ordinary meaning.’” FCC v. AT & T Inc.,
562 U.S. 397, 403 (2011) (quoting Johnson v. United States,
559 U.S. 133, 138 (2010)). To determine the ordinary
meaning of a word, “consulting common dictionary
definitions is the usual course.” Cal. All. of Child & Family
Servs. v. Allenby, 589 F.3d 1017, 1021 (9th Cir. 2009). “If
the language has a plain meaning or is unambiguous, the
statutory interpretation inquiry ends there.” CVS Health
10 ALDF V. USDA
Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017)
(citation omitted).
The Supreme Court considered in Mohamad v.
Palestinian Authority, 566 U.S. 449 (2012), the meaning of
“individual” as used in a provision of the Torture Victims
Protection Act. The Court defined “individual” to mean
“natural person” as opposed to an organization. Id.
at 451–52. Although Mohamad addressed a different
statutory context, we find much of its reasoning applicable
here. Surveying dictionaries, the Court wrote, “As a noun,
‘individual’ ordinarily means ‘[a] human being, a person.’”
Id. at 454 (quoting 7 OXFORD ENGLISH DICTIONARY 880 (2d
ed. 1989)); see also, e.g., RANDOM HOUSE DICTIONARY OF
THE ENGLISH LANGUAGE 974 (2d ed. 1987) (“a person”);
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1152
(1986) (“a particular person”). The Court continued, “After
all, that is how we use the word in everyday parlance.”
Mohamad, 566 U.S. at 454. We agree that, as a noun
standing alone, “individual” ordinarily refers to a single
human being.
Other broadly applicable legislative enactments further
corroborate this understanding. The Dictionary Act, which
offers guidance for “determining the meaning of any Act of
Congress, unless the context indicates otherwise,” 1 U.S.C.
§ 1, specifies that the definition of “person” includes entities,
such as corporations, “as well as individuals,” id. (emphasis
added), making clear that ordinarily the term “individual” is
a subcategory of “person”—that is, a human being. Like the
Dictionary Act, the Administrative Procedure Act defines
“person” to mean “an individual” or corporate entity,
5 U.S.C. §551(2), such that “individual,” as used therein, can
only be understood to refer to a human being.
ALDF V. USDA 11
ALDF argues that dictionaries also define “individual” as
“a particular being or thing as distinguished from a class,
species, or collection” and that this definition encompasses an
animal. See, e.g., MERRIAM-WEBSTER ONLINE DICTIONARY
(last visited August 5, 2019). Certainly, “individual” can be
used to refer to an animal in this manner. But when a speaker
or writer intends this meaning of the word, the sentence or its
context ordinarily specifies a corresponding class, species, or
collection of animals. ALDF cites a dictionary example of
“individual” used in this manner: “The markings on tigers
are unique to each individual.” (Emphasis in original). The
sentence indicates that the relevant species is tiger, and
individual corresponds to a particular example of that
species—a tiger.
By contrast, where no species or group is indicated, the
ordinary inference is that the group is “human beings.” This
usage is included in the Oxford English Dictionary Online,
whose second definition under noun reads, “In contexts
where a group is not specified or implied: a human being, a
person.” OXFORD ENGLISH DICTIONARY ONLINE (Last visited
August 5, 2019). FOIA’s expedited processing provision,
which refers to “the life or physical safety of an individual,”
is a “context[] where a group is not specified.” See 5 U.S.C.
§ 552(a)(6)(E)(v)(I). “Individual” in this provision thus
refers to “a human being, a person” because no other group
has been indicated.
As the Supreme Court recognized in Mohamad,
“Congress remains free, as always, to give the word
[‘individual’] a broader or different meaning.” 566 U.S. at
455. But Congress must give “some indication” that it
“intended such a result.” Id. (emphasis in original). The
Endangered Species Act (“ESA”) provides an illustration of
12 ALDF V. USDA
how Congress can indicate that it so intends. One section of
the ESA provides that, “The Secretary may authorize the
release (and the related transportation) of any population
(including eggs, propagules, or individuals) of an endangered
species or a threatened species outside the current range of
such species[.]” 16 U.S.C. § 1539(j)(2)(A) (emphasis added).
In another section of the ESA, Congress uses the term
“individual” with no such corresponding class and
indisputably refers to a human being. See id. § 1536(e)(3)(G)
(“The President . . . shall appoint one individual from each
affected State [to the Endangered Species Committee]”
(emphasis added)).
ALDF offers several statutory construction arguments to
support its position that “individual,” as used in
§ 552(a)(6)(E)(v)(I), includes animals. None is persuasive.
First, ALDF argues that we should liberally construe the
expedited processing provision to be consistent with FOIA’s
goal of broad disclosure. It is true that FOIA has the “express
purpose to mandate a policy of broad disclosure of
government documents and maximum feasible public access
to government information.” Rosenfeld v. United States,
859 F.2d 717, 725 (9th Cir. 1988) (internal quotation marks
omitted). But “a broad congressional purpose is of limited
value when,” as here, “the meaning is plain and the general
purpose is inconsistent with the purpose of the particular
provision.” See Schroeder v. United States, 793 F.3d 1080,
1084 (9th Cir. 2015).
While FOIA as a whole favors broad disclosure, the
expedited processing provision serves the narrower purpose
of prioritizing certain requests over others. The legislative
history of § 552(a)(6)(E) reveals a concern that “[g]iven the
ALDF V. USDA 13
finite resources generally available for fulfilling FOIA
requests, unduly generous use of the expedited processing
procedure would unfairly disadvantage other requestors who
do not qualify for its treatment.” H.R. REP. No. 104-795,
at 26 (1996); see also Al-Fayed v. CIA, 254 F.3d 300, 310
(D.C. Cir. 2001) (“[A]n unduly generous approach would . . .
disadvantage those requestors who do qualify for expedition,
because prioritizing all requests would effectively prioritize
none.”).
Second, ALDF argues that excluding animals from the
definition of “individual” in § 552(a)(6)(E)(v)(I) is
inconsistent with the Animal Welfare Act and other statutes
protecting animals. ALDF contends that if animals fall
outside the expedited processing provision’s definition of an
“individual,” AWA records will virtually never qualify for
expedited processing. ALDF argues that Congress could not
have intended to “gut” FOIA with respect to such records.
Similarly, ALDF argues that its definition of “individual” is
consistent with Congress’s broader goal to protect the welfare
of animals through statutes like the AWA and the ESA. It
argues that because Congress protects the lives and physical
safety of animals in those contexts, it must also have intended
to protect them for purposes of the expedited processing
provision.
We do not deny that animal welfare is an important goal
that has been recognized by Congress in a variety of statutes.
It has not, however, been recognized in FOIA’s expedited
processing provision. Congress chose to limit the definition
of “compelling need” to prioritize certain records for
expedited processing—specifically, records whose delayed
release would pose an imminent threat to the life or physical
safety of a human being. ALDF may disagree with
14 ALDF V. USDA
Congress’s policy choice. But we are not at liberty to
override congressional intent and read a statutory term
contrary to its plain meaning.
Finally, ALDF argues that we should read
§ 552(a)(6)(E)(v)(I) to correspond to what it contends is the
proper construction of an almost identical phrase in one of
FOIA’s exemptions, codified at § 552(b)(7)(F). Exemption
7(F) allows an agency to withhold law enforcement records
“to the extent that the production of such law enforcement
records or information . . . could reasonably be expected to
endanger the life or physical safety of any individual.”
5 U.S.C. § 552(b)(7)(F). “[I]t is a well-established principle
of statutory construction that the same words or phrases are
presumed to have the same meaning when used in different
parts of a statute.” Prieto-Romero v. Clark, 534 F.3d 1053,
1061 n.7 (9th Cir. 2008) (internal quotation marks omitted).
ALDF contends that “individual,” as used in § 552(b)(7)(F),
includes animals, and that we should construe “individual” in
§ 552(a)(6)(E)(v)(I) to mean the same thing. We agree with
ALDF that these two provisions of FOIA should be read
consistently. But we disagree with ALDF as to their
meaning. In our view, both provisions use the term
“individual” to mean “human being.”
“Any individual,” as used in Exemption 7(F), has been
read broadly in the sense that it applies to a wide range of
people, such as confidential informants and potential victims
of terrorist activity. See DEP’T OF JUSTICE, GUIDE TO THE
FREEDOM OF INFORMATION ACT: EXEMPTION 7F (2019)
(collecting cases). During the 1986 amendments to FOIA,
the closing language of Exemption 7(F) was altered from “the
life or physical safety of law enforcement personnel” to the
current language of “the life or physical safety of any
ALDF V. USDA 15
individual.” Pub. L. No. 99-570, § 1802(a), 100 Stat. 3207
(1986). In the sense of this expanded scope, the term “any
individual” is recognized as “very broad.” See Pub. Emps.
for Envtl. Responsibility v. U.S. Section, Int’l Boundary &
Water Comm’n, U.S.-Mexico, 740 F.3d 195, 205 (D.C. Cir.
2014).
But Exemption 7(F) has never been applied to withhold
records because of a threat to an animal. Nor could it be. As
discussed above, the plain meaning of “individual,” absent a
context signifying otherwise, is “a human being, a person.”
See OXFORD ENGLISH DICTIONARY ONLINE. Congress has
not indicated that Exemption 7(F) refers to individuals of any
other species. FOIA exemptions should be “construed
narrowly” in light of FOIA’s pro-disclosure purpose. See
Theriault, v. United States, 503 F.2d 390, 392 (9th Cir. 1974).
As a result, it would be particularly incongruous to read into
the statute a broader definition of “individual” than its plain
meaning provides.
Conclusion
FOIA provides for expedited processing of records if
“failure to obtain [the] requested records on an expedited
basis . . . could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual[.]”
5 U.S.C. § 552(a)(6)(E)(v)(I). Where, as here, “individual”
is used as a noun with no corresponding group or category, its
plain meaning is “human being.” The district court’s grant of
summary judgment to USDA was therefore proper. We deny
as moot ALDF’s motion to take judicial notice.
AFFIRMED.