Aldf v. Fda ( 2020 )

FILED
NOT FOR PUBLICATION
JAN 16 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANIMAL LEGAL DEFENSE FUND, No. 19-15528
Plaintiff-Appellee, D.C. No. 3:12-cv-04376-EDL
v.
MEMORANDUM*
UNITED STATES FOOD & DRUG
ADMINISTRATION,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Submitted January 13, 2020**
Pasadena, California
Before: GRABER, WARDLAW, and MURGUIA, Circuit Judges.
The United States Food and Drug Administration ("FDA") timely appeals
the district court’s judgment partially in favor of Plaintiff Animal Legal Defense
Fund following a bench trial. The sole issue at trial was whether certain categories
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
of information were "confidential" under Exemption 4 of the Freedom of
Information Act. 5 U.S.C. § 552(b)(4). At issue in this appeal is the district
court’s ruling, under the then-applicable definition of "confidential," that the
disclosure of four categories of information—total number of hen houses, number
of floors per house, number of cage rows per house, and number of cage tiers per
house—is not likely to cause substantial competitive harm.1
After entry of judgment, the Supreme Court decided Food Marketing
Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019). The Court rejected our
definition of "confidential" and issued its own definition. Id. at 2362–66. We
agree with the parties that Argus Leader controls on appeal. United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801); Lambert v. Blodgett, 393
F.3d 943, 973 n.21 (9th Cir. 2004).
We vacate the judgment in relevant part and remand for further proceedings.
The district court did not have the benefit of Argus Leader, and we decline to apply
the new legal standard in the first instance. See, e.g., Strategic Diversity, Inc. v.
1
The district court held that one category of information, total hen
population, fell within Exemption 4 and, accordingly, the court granted judgment
to the FDA in that respect. Plaintiff timely appealed but voluntarily dismissed the
appeal. We lack appellate jurisdiction over the part of the judgment that was
entered in favor of the FDA. Greenlaw v. United States, 554 U.S. 237, 244 (2008);
El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999).
2
Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012) (describing our precedent as
"noting the prudence of remand in light of recent Supreme Court authority");
Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1041 (9th Cir. 2003)
("Because the district court did not have the opportunity to consider the facts of
this case in light of the standard the Supreme Court articulated in [an intervening
decision], we vacate the district court’s judgment on the [relevant] claim and
remand for reconsideration in light of [that decision].").
We find remand particularly appropriate here because the record is
underdeveloped as to whether each egg producer customarily and actually kept
each category of information at issue confidential. For example, although
representatives from Feather Crest, Cal-Maine, and Mahard Farms testified that
they would not let the public see the information that is subject to FDA inspection,
there is insufficient evidence as to what specific steps each producer took to keep
its information confidential. Moreover, it appears that some (but not necessarily
all) producers voluntarily publically disclosed certain categories of information in
ways that undermine confidentiality. Remand would enable the district court to
choose from a "variety of tools available . . . for supplementing the record with any
necessary facts." Betz v. Trainer-Wortham & Co., 610 F.3d 1169, 1171 (9th Cir.
2010).
3
On remand, the district court shall determine whether one or more egg
producers "customarily and actually treated" the relevant information "as private."
Argus Leader, 139 S. Ct. at 2366 (emphasis added). If necessary, the court shall
decide whether the term "confidential" requires a governmental "assurance of
privacy" and, if so, whether the FDA provided the necessary assurance. Id.
We remand on an open record. The district court has the discretion to take
further evidence, if the court determines that doing so would be helpful in
answering the foregoing questions.
VACATED in part and REMANDED for further proceedings. The
parties shall bear their own costs on appeal.
4