Humane Society International v. United States Fish and Wildlife Service ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HUMANE SOCIETY INTERNATIONAL,
Plaintiff,
v.
U.S. FISH AND WILDLIFE SERVICE et al.,
Civil Action No. 16-720 (TJK)
Defendants,
and
SAFARI CLUB INTERNATIONAL,
Defendant-Intervenor.
MEMORANDUM OPINION AND ORDER
Humane Society International, a nonprofit organization that promotes animal
conservation and welfare, requested records concerning the import and export of wildlife that the
U.S. Fish and Wildlife Service maintains in its Law Enforcement Management Information
System. The agency released the records but redacted certain categories of information under
exemptions in the Freedom of Information Act for commercial, private personal, and law
enforcement information. In this lawsuit, Humane Society International challenges those
redactions as unlawful and asserts a claim under the Administrative Procedure Act, alleging that
the agency had previously released these types of information but has changed its practice
without adequate explanation. Safari Club International, a nonprofit organization whose
members import wildlife, intervened as a defendant to prevent the disclosure of the names of its
members in the records at issue.
The parties have cross-moved for summary judgment. At issue are the two categories of
information that the agency redacted from the records it released: (1) the declared monetary
value of the wildlife, which the agency withheld as confidential business information under
Exemption 4, and (2) the names of individual wildlife importers and exporters, which the agency
withheld as private personal information under Exemption 6 and as law enforcement records
containing such information under Exemption 7(C). For the reasons explained below, the Court
will deny without prejudice Humane Society International’s and Defendants’ motions for
summary judgment as to the withholdings under Exemption 4; grant summary judgment for
Defendants and Safari Club International as to the withholdings under Exemption 7(C); and
grant summary judgment for Defendants on the Administrative Procedure Act claim. 1
Factual and Procedural Background
A. The Law Enforcement Management Information System
The U.S. Fish and Wildlife Service (FWS), an agency within the Department of the
Interior, maintains the Law Enforcement Management Information System (LEMIS), an
electronic database that houses information about violations of wildlife regulations, legal and
illegal wildlife trade, and declared imports and exports of wildlife. Defs.’ SOF ¶¶ 3–5. Law
enforcement officers routinely access LEMIS and use it as the portal for gathering and sharing
intelligence between law enforcement offices around the country. Id. LEMIS includes
information that importers and exporters submit through Form 3-177, the “Declaration for
Importation and Exportation of Fish or Wildlife.” Id. ¶ 6. With some narrow exceptions, anyone
1
In ruling on these motions, the Court considered all relevant filings, including but not limited to
the following: ECF No. 1 (“Compl.”); ECF No. 29-1 (“Decl. of Hyde-Michaels”); ECF No. 29-2
(“Vaughn Index”); ECF No. 32, Defendants’ Motion for Summary Judgment (“Defs.’ MSJ”);
ECF No. 32, Statement of Material Facts as to Which There Is No Genuine Dispute (“Defs.’
SOF”); ECF No. 34; ECF No. 36, Plaintiff’s Cross-Motion for Summary Judgment and
Opposition to Defendants’ and Defendant-Intervenor’s Motions for Summary Judgment (“Pl.’s
MSJ”); ECF No. 36, Statement of Material Facts as to Which There Is No Genuine Dispute
(“Pl.’s SOF”); ECF No. 36-1 (“Decl. of Peyman”); ECF No. 37; ECF No. 41; ECF No. 44
(“Intvrs.’ Reply”); ECF No. 45 (“Pl.’s Reply”).
2
importing or exporting wildlife products must submit Form 3-177 before doing so. Pl.’s SOF
¶ 23; see also 50 C.F.R. §§ 14.61–64. Form 3-177 requests several categories of information,
including the declared monetary value of the wildlife being imported or exported, the name of
the U.S. importer or exporter, and the name of the foreign importer or exporter. Defs.’ SOF ¶ 8;
Pl.’s SOF ¶ 24.
B. Humane Society International’s Freedom of Information Act Requests
In 2014 and 2015, Humane Society International (HSI) made three requests of FWS
under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking records from LEMIS. 2
Pl.’s SOF ¶ 27. In response to each request, FWS released some records but redacted several
categories of information in the records. See Vaughn Index. Relevant here, FWS withheld the
declared monetary value of the wildlife and the name of the foreign importer or exporter under
FOIA Exemption 4, and the name of the U.S. importer or exporter under FOIA Exemptions 6
and 7(C). Pl.’s SOF ¶ 28. HSI administratively appealed FWS’s responses to all three of its
FOIA requests but never received a final determination on any of them. Pl.’s SOF ¶ 30.
C. This Action
After the constructive denial of its administrative appeals, HSI filed this lawsuit against
FWS, the U.S. Department of the Interior, and the Secretary of the Department of the Interior
(collectively, “Defendants”), asserting that the redactions were improper. Compl. ¶¶ 75–85.
HSI also brought a claim under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.,
2
The first request, on June 2, 2014, asked for LEMIS records from 2013 about all wildlife
products, including information on “control number, species code, class, genus, species,
subspecies, generic name, specific name, wildlife description, quantity, unit, country of origin,
country IE, Purpose, Source, Action, DP CD, Disp. Date, I/E, Port code, value, U.S.
Importer/Exporter, [and] Foreign Importer/Exporter.” ECF No. 36-1 ¶ 29. The second request,
on August 21, 2014, asked for the same information from 2002 to 2010. Id. ¶ 39. The third
request, on June 3, 2015, asked for the same information from 2014. Id. ¶ 45.
3
asserting that FWS failed to adequately explain its decision to withhold these categories of
information given that on prior occasions it had released them in response to HSI’s FOIA
requests. Id. ¶¶ 86–92.
As this case proceeded, FWS released additional information that HSI had requested. See
ECF Nos. 14, 18, 22–25, 27. And several months after the complaint was filed, Safari Club
International (SCI) filed an unopposed motion to intervene as of right as a defendant, which the
Court granted. See ECF No. 16; Minute Order of August 19, 2016.
FWS’s regulations require consultation with those who have submitted information to
FWS before it releases any information that may be protected by FOIA Exemption 4 as
confidential business information. See 43 C.F.R. §§ 2.29–2.34 (requiring federal agencies to
consult submitters before the release of information the agency believes may be protected by
Exemption 4). So in late 2016, FWS published a notice in the Federal Register soliciting
comments from companies and individuals who had submitted Form 3-177 and whose
information was subject to HSI’s FOIA requests. Pl.’s SOF ¶ 33; Defs.’ SOF ¶¶ 30–31. FWS
solicited their views on whether the declared monetary value and name of the foreign importer or
exporter on Form 3-177 should be withheld under Exemption 4.3 See 81 Fed. Reg. 75,838 (Nov.
1, 2016).
Out of approximately 12,000 individuals and entities whose information was at issue, 113
companies and 1,429 individuals objected to the release of their information. See Defs.’ SOF ¶
33; Pl.’s SOF ¶ 37. The 113 companies asserted that their information at issue was confidential
3
At the time FWS solicited these comments, the controlling test for whether information was
confidential within the meaning of FOIA Exemption 4 came from the D.C. Circuit case National
Parks and Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). The Federal
Register notice solicited comments addressing the relevant factors under the National Parks test.
But, as discussed below, the Supreme Court has since abrogated that test.
4
business information covered by Exemption 4. Pl.’s SOF ¶ 37. FWS reviewed these objections
and determined that 93 companies had shown that withholding that information under Exemption
4 was warranted. Defs.’ SOF ¶¶ 56–57. For the 1,429 individuals who objected to the release of
their information, FWS withheld only their names under Exemptions 6 and 7(C) and released all
other categories of the information from the forms they submitted. Id. ¶¶ 35–36, 38. Since then,
FWS has clarified that it no longer relies on Exemption 4 to withhold the names of the foreign
importers or exporters, but instead relies on Exemptions 6 and 7(C). Defs.’ SOF ¶¶ 26–27; Decl.
of Hyde-Michaels ¶ 13.
Legal Standards
FOIA cases are typically resolved on summary judgment motions, which “[t]he court
shall grant . . . if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Brayton v. Office of the
U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). A factual dispute is material if it “might
affect the outcome of the suit under the governing law” and genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
Under FOIA, a federal agency must “disclose information to the public upon reasonable
request unless the records at issue fall within specifically delineated exemptions.” Judicial
Watch, Inc. v. FBI, 522 F.3d 364, 366 (D.C. Cir. 2008). There is a “strong presumption in favor
of disclosure,” which “places the burden on the agency to justify the withholding of any
requested documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (CREW I), 746 F.3d 1082, 1088 (D.C.
Cir. 2014). An agency can meet its burden by submitting affidavits or sworn declarations that
5
“describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.” PETA v. U.S. Dep’t
of Health & Human Servs. (PETA), 901 F.3d 343, 349 (D.C. Cir. 2018) (quoting Larson v. U.S.
Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
Analysis
A. Withholdings Under FOIA
1. Exemption 4
FOIA Exemption 4 permits federal agencies to withhold “trade secrets and commercial or
financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C.
§ 552(b)(4). Until recently, the applicable test for whether records submitted involuntarily to an
agency fell under Exemption 4 was set forth by the D.C. Circuit in National Parks and
Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). Under the National Parks
test, Exemption 4 covered information that, if disclosed, would either (1) “impair the
Government’s ability to obtain necessary information in the future,” or (2) “cause substantial
harm to the competitive position of the person from whom the information was obtained.” Id. at
770; see also PETA, 901 F.3d at 350. Further, the Circuit held, the disclosure of involuntarily
provided information presumptively did not impair the government’s ability to obtain necessary
information in the future. See Nat’l Parks I, 498 F.2d at 770; In Defense of Animals v. USDA,
656 F. Supp. 2d 68, 72 (D.D.C. 2009).
Recently, however, the Supreme Court abrogated the National Parks test in Food
Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019). The Court held that
confidentiality under Exemption 4 does not depend on whether disclosure of the information
would cause substantial competitive harm, but whether the entity sharing the information
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typically kept it private. Id. at 2363–64. The Court held open the possibility that confidential
information might lose that character if it were provided to the government without any
assurance that the information would remain confidential, but it did not need to decide that issue
to resolve the case. Id. at 2363. “At least where commercial or financial information is both
customarily and actually treated as private by its owner and provided to the government under an
assurance of privacy,” the Court held, “the information is ‘confidential’ within the meaning of
Exemption 4.” Id. at 2366.
FWS relies on Exemption 4 to justify its redactions of the declared monetary value of the
wildlife imported or exported. But the parties’ briefing on Exemption 4 focuses on the National
Parks test, as it was the controlling law when they filed their briefs. And, on the current record,
the Court cannot determine how the factors in the new Food Marketing Institute test apply to
these withholdings. The Court will therefore deny without prejudice HSI’s and Defendants’
motions for summary judgment on Exemption 4 so that the parties may brief the issue in light of
Food Marketing Institute.
2. Exemption 7(C)
FWS relies on Exemptions 6 and 7(C) to redact the names of the foreign and U.S.
importers or exporters listed on Form 3-177. “When information is claimed to be exempt from
disclosure under both provisions, courts ‘focus . . . on Exemption 7(C) because it provides
broader privacy protection than Exemption 6 and thus establishes a lower bar for withholding
material.’” Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 854 F.3d
675, 682 (D.C. Cir. 2017) (quoting CREW I, 746 F.3d at 1091 n.2). Exemption 7(C) allows
withholding of (1) “records or information compiled for law enforcement purposes” if they (2)
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C).
7
a. Compiled for Law Enforcement Purposes
For an agency to show that it compiled records for a law enforcement purpose, it must
show “a rational nexus” between those records and the agency’s responsibility to investigate
“violation[s] of federal law.” See Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice (CNSS), 331
F.3d 918, 926 (D.C. Cir. 2003) (quoting Campbell v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir.
1998)). These violations may be either civil or criminal. See Pub. Emps. for Envtl.
Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 203
(D.C. Cir. 2014). And enforcement includes more than just “investigating and prosecuting
individuals after a violation of the law.” Id. (emphasis in original).
The Court concludes that the records at issue in LEMIS were compiled for law
enforcement purposes within the meaning of Exemption 7(C). 4 FWS represents that LEMIS is
“utilized by all FWS law enforcement offices” and “serves as the portal in which all FWS
[violations of wildlife regulations] are documented and intelligence is gathered and shared
between law enforcement offices across the country.” Decl. of Hyde-Michaels ¶ 2. LEMIS also
houses data related to all declared “imports and exports of wildlife products,” which enables
FWS to use the database to both identify and proactively prevent violations of its regulations. Id.
For example, FWS records an animal’s scientific name to “determine if the animal is legal under
Federal, State, tribal and foreign law” and to identify “which imports and exports need special
permits and which are prima facie illegal.” Id. ¶ 4. And FWS uses information on the declared
monetary value of wildlife products “to verify compliance with the reported [U.S. Customs and
Border Protection] values at the time of import and export and to help determine appropriate
4
The Court so holds even though it owes no deference to FWS’s assertion that information
maintained in LEMIS is compiled for law enforcement purposes, because law enforcement is not
FWS’s principal function. See Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 64 (D.C. Cir. 2018).
8
monetary penalties for violations.” Id. For these reasons, the records at issue in LEMIS have a
“rational nexus” to FWS’s duty to enforce laws governing the import and export of wildlife
products. See CNSS, 331 F.3d at 926.
HSI asserts that these records are not compiled for law enforcement purposes because
they are “compiled routinely and habitually, . . . as required for every lawful import or export of
any wildlife specimen.” Pl.’s MSJ at 32. Further, HSI argues, FWS has not connected the
LEMIS data “to any enforcement proceeding or . . . investigation of any individual or particular
incident.” Id. at 33. But the D.C. Circuit has held that Exemption 7(C) may apply “even when
the materials have not been compiled in the course of a specific investigation.” Tax Analysts v.
IRS, 294 F.3d 71, 79 (D.C. Cir. 2002). And another court in this district recently rejected a
similar argument that records collected for “routinized oversight” could not have been compiled
for law enforcement purposes within the meaning of Exemption 7(C). See Humane Soc’y of U.S.
v. Animal & Plant Health Inspection Serv., No. 18-646 (TNM), 2019 WL 2342949 at *8–*9.
(D.D.C. June 3, 2019); see also Long v. Immigration & Customs Enf’t, 149 F. Supp. 3d 39, 49
(D.D.C. 2015) (describing records in an immigration-related database as “not the kind of records
compiled for generalized snooping of individuals’ lives, but . . . prepared to effectuate the
agencies’ law enforcement responsibilities”). For these reasons, given the agency’s explanation
of how it uses these LEMIS records to monitor the import and export of wildlife products and to
enforce the relevant laws, the Court is satisfied that FWS compiled the LEMIS records at issue
“for law enforcement purposes” under Exemption (7)(C).
b. Unwarranted Invasion of Personal Privacy
FWS withheld the names of individuals listed in the “U.S. Importer/Exporter” column
and the “Foreign Importer/Exporter” column of the Form 3-177s maintained in LEMIS to protect
individuals’ privacy. Decl. of Hyde-Michaels at ¶¶ 13, 15, 18. Again, these withholdings were
9
proper only if disclosure “could reasonably be expected to constitute an unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(7)(C). “The term ‘unwarranted’ requires [the Court] to
balance the [individuals’] privacy interest against the public interest in disclosure.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (citing U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press (RCFP), 489 U.S. 749, 762 (1989)). Importantly, “[t]o
effect this balance and to give practical meaning to the exemption, the usual rule that the citizen
need not offer a reason for requesting the information must be inapplicable.” Id. at 172.
Typically, individuals have a privacy interest in preventing the disclosure of information
compiled for law enforcement purposes. The Supreme Court has recognized that requests for
“law enforcement records or information about a private citizen can reasonably be expected to
invade that citizen’s privacy.” RCFP, 489 U.S. at 780. In fact, an individual’s privacy interest is
“at its apex” when, as here, “information is in the Government’s control as a compilation, rather
than as a record of what the Government is up to.” Id. (quotation marks omitted). Exemption
7(C) therefore requires courts “to protect, in the proper degree, the personal privacy of citizens
against the uncontrolled release of information compiled through the power of the State.”
Favish, 541 U.S. at 172. After all, “disclosure of records regarding private citizens, identifiable
by name, is not what the framers of the FOIA had in mind.” RCFP, 489 U.S. at 765.
Defendants argue that the individuals whose names have been withheld have an interest
in keeping their names private. Defs.’ MSJ at 15; Decl. of Hyde-Michaels ¶ 17 (explaining that
FWS found that private individuals identified in the LEMIS database have a “substantial privacy
interest in their personal information”). Similarly, SCI contends that these individuals have a
privacy interest in preventing the public from “connect[ing] their names with the other
information already disclosed.” Intvrs.’ Reply at 3. The Court agrees. These individuals have
10
an interest in keeping their names from being disclosed to the public alongside the details of their
private activity importing or exporting wildlife. And that interest is “at its apex” here, where the
government has compiled information about private citizens. RCFP, 489 U.S. at 780. 5
HSI argues that the privacy interest is at most de minimis, in part because hunters
(including members of SCI) “have voluntarily chosen to engage in the highly regulated activity
of international trophy hunting.” Pl.’s MSJ at 35. But simply because these individuals have
decided to engage in a regulated activity does not mean they have no privacy interest in the
information they must provide the government in connection with that activity. HSI also
contends that hunters’ privacy interests in their names is “disingenuous” because they “routinely
self-identify and defend their activities” through media sources such as “photographs posted
online” and “public statements.” Pl.’s Reply at 13. Perhaps some do. But HSI has not requested
information about particular hunters’ self-publicized import and export activities. It has
requested the name of every individual who filled out Form 3-177 for eleven years. See Decl. of
Peyman ¶¶ 29, 39, 45. There is no indication in the record that any more than a small, unknown
subset of these individuals have publicized their activity in a way that is inconsistent with
maintaining their privacy.
Because Defendants have identified a privacy interest in these individuals’ names, the
Court must next determine whether HSI has “establish[ed] a sufficient reason for the disclosure.”
5
Defendants also argue that the individuals’ names should be kept private because they
“reasonably foresee[] that disclosure of this information could result in harassment or worse by
those who choose to picket homes or publicize the names of those associated with animal
imports.” Defs.’ MSJ at 15; Decl. of Hyde-Michaels ¶ 18. SCI adds that although HSI may not
itself harass hunters, it may still “publicize the names” and thereby enable others to “use the
names in inappropriate and harassing ways.” Intvrs.’ Reply at 1. Plaintiffs disclaim any
intention to publicize these names and dismiss these concerns as speculation. Pl.’s Reply at 13–
14. The Court need not resolve this dispute because even without the potential for harassment of
these individuals, the balance of the interests tips against disclosure.
11
Favish, 541 U.S. at 172. To do so, HSI first “must show that the public interest sought to be
advanced is a significant one, an interest more specific than having the information for its own
sake. Second, [HSI] must show the information is likely to advance that interest. Otherwise, the
invasion of privacy is unwarranted.” Id. “The only relevant public interest in the FOIA
balancing analysis is the extent to which disclosure of the information sought would ‘shed light
on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their
government is up to.’” CREW I, 746 F.3d at 1093 (quoting Dep’t of Def. v. FLRA, 510 U.S. 487,
497 (1994)); see also RCFP, 489 U.S. at 780 (explaining that when a FOIA request “seeks no
‘official information’ about a Government agency, but merely records that the Government
happens to be storing, the invasion is ‘unwarranted’”).
HSI argues that having the importers’ and exporters’ names might, in fact, bring FWS
misfeasance to light. But when the public interest asserted is to show that agency officials acted
“improperly in the performance of their duties,” the requestor must “produce evidence that
would warrant a belief by a reasonable person that the alleged Government impropriety might
have occurred.” Favish, 541 U.S. at 174. In Favish, the Supreme Court explained that although
there was a significant public interest in uncovering possible misfeasance in the Government’s
investigation of a White House official’s death, the lower court erred in accepting the stated
public interest without requiring a “particular showing” that “evidence points with credibility to
some actual misfeasance or other impropriety.” Id. at 173. Relying on the presumption of
legitimacy accorded to the Government’s official conduct, the Court found that the public
interest did not outweigh the privacy interests of the victim’s family in death-scene photographs
because there was no clear evidence of agency officials’ misconduct. Id. at 174.
12
Likewise, HSI’s speculation on this score is insufficient. HSI advances no “particular
showing” of credible evidence of misfeasance on FWS’s part in enforcing the laws related to
wildlife imports and exports. HSI argues that disclosing individuals’ names “serves the critical
public purpose of monitoring what wildlife FWS lets into and out of the country with whom, and
whether FWS is fulfilling its statutory duties.” Pl.’s Reply at 19; see also Pl.’s MSJ at 39–41.
For example, HSI contends that it needs the names of individuals to determine whether FWS is
complying with domestic and international laws that limit the number of hunting trophies an
individual hunter is permitted to import. Pl.’s MSJ at 40–41. But it offers only hypothetical
examples of FWS misconduct that it believes would warrant disclosure. See, e.g., id. at 40 (“For
example, if FWS allowed multiple unlawful imports into the country, HSI would want to know
whether they were multiple imports by the same person, or rather single imports by many
different importers.” (emphasis added)). Although HSI suggests that it “has provided sufficient
evidence of government negligence or wrongdoing,” Pl.’s Reply at 20, the only evidence it
provides are its own press releases expressing disagreement with FWS’s recent decision, after
seeking comment from the public, to grant an importation permit, and two recent cases in which
courts found that FWS had violated the APA in promulgating various rules, id. at 21. This
evidence does not credibly suggest that during the relevant period, FWS officials engaged in
misfeasance or failed to meet their statutory enforcement duties—nor does it have much to do
with its purported need for the names of these individuals. HSI therefore has not demonstrated a
public interest in the disclosure of these individuals’ names that outweighs the privacy interests
at stake.
Because Defendants have established that individual importers and exporters have a
privacy interest in their names, and HSI has not established a public interest in disclosure
13
sufficient to outweigh their privacy interest, disclosure of their names “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
For these reasons, the Court will grant Defendants’ and SCI’s motions for summary judgment,
and deny HSI’s, as to the withholdings under Exemption 7(C). 6
B. APA Claim
In its APA claim, HSI asserts that FWS unlawfully failed to explain its withholdings.
Compl. ¶¶ 86–92. HSI argues that for over ten years, FWS “routinely and consistently” released
the information that it has now withheld, and that FWS’s change in position demands an
explanation. Id. ¶ 92. It therefore asks the Court to “[d]eclare that Defendants’ withholding of
the three categories of LEMIS data must be set aside as arbitrary and capricious under the APA.”
Id., Relief ¶ D.
Judicial review under the APA is available only for “final agency action for which there
is no other adequate remedy in a court.” 5 U.S.C. § 704. To determine whether an adequate
remedy exists, the D.C. Circuit evaluates “whether a statute provides an independent cause of
action or an alternative review procedure.” Feinman v. FBI, 713 F. Supp. 2d 70, 76 (D.D.C.
2010) (quoting El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health &
Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Courts in this Circuit need not find that
6
FOIA requires that agencies release any non-exempt portion of a record that is “reasonably
segregable” from the exempt portions. 5 U.S.C. § 552(b). And courts must consider whether an
agency has met this requirement even where the plaintiff does not argue otherwise. See Elliott v.
USDA, 596 F.3d 842, 851 (D.C. Cir. 2010). Here, because FWS withheld only individuals’
names and there is no indication that it withheld any non-exempt information on the ground that
it was not segregable, the Court is satisfied that the segregability requirement is met as to the
information withheld under Exemption 7(C). See also PETA, 901 F.3d at 351 (segregability
requirement was met where agency redacted only exempt categories of data collected through
forms declaring animal imports).
14
the alternative remedy provides “relief identical to relief under the APA, so long as it offers
relief of the same genre.” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009).
The APA “does not provide additional judicial remedies in situations where the Congress
has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879,
903 (1988). For that reason, an APA claim “arising out of an agency’s response to a FOIA
request must be dismissed when [it] seek[s] relief that can be obtained through a FOIA claim
itself.” Elec. Privacy Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 95 (D.D.C. 2011) (collecting cases).
HSI concedes that APA review is unavailable when a plaintiff seeks the disclosure of records
because FOIA provides an adequate remedy. Pl.’s MSJ at 43. But HSI argues that its APA
claim would not be remedied by the disclosing of records. Id. at 44. Rather, it asserts that
FWS’s inadequate explanation can be remedied “only by a proper acknowledgment and
explanation of [FWS’s] material reversal of longstanding agency policy.” Id. HSI thus argues
that it does not challenge “the agency policy itself,” but instead “the agency’s independent
failure to acknowledge and explain its decision to change course as required by the APA.” Id.
HSI’s argument misses the mark. In its briefing, HSI attempts to reframe its requested
relief under the APA as an explanation for FWS’s alleged shift in practice. But as reflected in
the complaint, the relief it seeks on its APA claim is not to have the agency explain its action, but
to have FWS’s withholdings under Exemptions 4, 6, and 7(C) invalidated. See Compl., Relief ¶
D (requesting that the Court “[d]eclare that Defendants’ withholding of the three categories of
LEMIS data must be set aside as arbitrary and capricious under the APA”). And that makes
sense, since the available remedy under the APA for arbitrary and capricious action is for the
Court to hold the action unlawful, not to require the agency to explain itself. 5 U.S.C.
§ 706(2)(A) (courts must “hold unlawful and set aside” arbitrary and capricious agency action).
15
That relief—holding FWS’s action unlawful by invalidating its withholdings—is precisely the
relief available to HSI under FOIA. FOIA thus precludes HSI’s APA claim, and the Court will
grant summary judgment for Defendants on this claim.
Conclusion and Order
For all of the above reasons, it is hereby ORDERED that Defendants’ Motion for
Summary Judgment, ECF No. 32, is DENIED WITHOUT PREJUDICE as to the applicability
of Exemption 4, and GRANTED as to the applicability of Exemption 7(C) and as to HSI’s APA
claim; SCI’s Motion for Summary Judgment, ECF No. 34, is GRANTED as to the applicability
of Exemption 7(C); and HSI’s Cross-Motion for Summary Judgment, ECF No. 36, is DENIED
WITHOUT PREJUDICE as to the applicability of Exemption 4 and DENIED as to the
applicability of Exemption 7(C) and as to its APA claim. It is further ORDERED that the
parties shall file a proposed briefing schedule for renewed summary judgment motions by
September 12, 2019.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 15, 2019
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