People for the Ethical Treatment of Animals v. AGRI

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2019 Decided March 15, 2019
No. 18-5074
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF AGRICULTURE AND ANIMAL
AND PLANT HEALTH INSPECTION SERVICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00269)
Katherine Anne Meyer argued the cause for appellants.
With her on the briefs was William N. Lawton.
John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was Mark
B. Stern, Attorney. Michael S. Raab and Daniel Tenny,
Attorneys, entered appearances.
Before: GARLAND, Chief Judge, KATSAS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
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WILLIAMS, Senior Circuit Judge: A coalition of animal
rights advocates led by People for the Ethical Treatment of
Animals (collectively “PETA”) appeals the dismissal of their
FOIA claims seeking records relating to animal welfare laws
and regulations from the U.S. Department of Agriculture
(“USDA”). Plaintiffs sued after the agency had removed
certain records posted online, explaining its action in language
consistent with an intention to restore them except for
redactions required by privacy interests (but without a clear
commitment to such restorations).
The district court dismissed all claims on varying grounds:
(1) on the merits—as to certain issues not appealed; (2) on
mootness with regard to material restored by USDA to the
website, and (3) as to redactions from restored materials, on the
ground that plaintiffs’ complaint did not address them. We
reverse on the last issue without reaching the merits, and we
remand for further factual clarification bearing on plaintiffs’
contention that USDA’s voluntary cessation of unlawful
activity renders mootness inapplicable. We affirm the district
court’s refusal to grant discovery against the agency.
* * *
Plaintiffs seek documents from the Animal and Plant
Health Inspection Service (“APHIS”), the entity within USDA
that administers the Animal Welfare Act (“AWA”), 7 U.S.C.
§§ 2131 et seq., and is responsible for licensing and inspecting
animal research facilities, among other things. Plaintiffs filed
this suit shortly after USDA took down from its website a large
swath of documents relating to AWA compliance. On
February 3, 2017, USDA announced that, “during the past
year,” APHIS had been “conduct[ing] a comprehensive review
of the information it posts” online. See USDA, Stakeholder
Announcement: Updates to APHIS’ Website Involving Animal
Welfare Act and Horse Protection Act Compliance Information
3
(Feb. 3, 2017) (updated Feb. 15, 2017),
https://www.aphis.usda.gov/aphis/newsroom/stakeholder-info
/sa_by_date/sa-2017/sa-02/awa-hpa-compliance. The
announcement stated that USDA was taking down a host of
records with the aim of “remov[ing] certain personal
information.” Id. In doing so, the agency was “striving to
balance the need for transparency with rules protecting
individual privacy.” Id. Though the announcement did not
expressly say that the takedown was temporary or provide a
timeline to repost records, the agency in this litigation describes
the removal as “provisional[],” suggesting that “remov[ing] . .
. personal information” is a task temporary in nature. See
USDA Br. 6; see also J.A. 43 (USDA’s motion to dismiss
describing the takedown as “a temporary precaution”). The
district court agreed, calling the removal “temporary” and
“one-time,” People for Ethical Treatment of Animals, Inc. v.
U.S. Dep’t of Agric. (PETA I), 285 F. Supp. 3d 307, 313
(D.D.C. 2018), though plaintiffs do not concede the point, see
PETA Br. 31.
On February 13, 2017, plaintiffs filed this suit asking for
declaratory and injunctive relief, invoking what is known as
FOIA’s “reading room” provision, 5 U.S.C. § 552(a)(2). That
provision requires agencies to “make available for public
inspection in an electronic format” five categories of
documents. The complaint focuses on four types of records (as
grouped by the district court) that the agency had removed: (1)
research facility annual reports; (2) inspection reports; (3) lists
of entities licensed under the AWA; and (4) regulatory
correspondence and enforcement records that had not yet
received final adjudication. See Compl. ¶¶ 1, 30; 285 F. Supp.
3d at 310–11.
Plaintiffs allege that they depend on these documents for,
inter alia, scholarly endeavors, see Compl. ¶ 5, and wide-
ranging advocacy work, including unearthing and correcting
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AWA compliance violations, Compl. ¶ 24. The records at
issue, plaintiffs allege, were “routine[ly]” made available “[f]or
many years,” Compl. ¶ 31, though admittedly with redactions
in line with relevant FOIA exemptions, including for “personal
privacy,” Compl. ¶ 21; see 5 U.S.C. § 552(b)(6). PETA alleges
that under § 552(a)(2) USDA must disclose all removed
records, Compl. ¶ 34, and avers that requiring plaintiffs to file
FOIA requests for these records under § 552(a)(3) would be
onerous, exacerbating USDA’s existing “substantial backlog”
in processing FOIA requests. Compl. ¶ 27.
PETA asked for an order requiring that USDA
“immediately” “make all . . . records” described in the
complaint available by electronic means. It also sought a
declaration that USDA had violated FOIA by removing the
documents, along with an injunction ordering the agency to
“make all such records available” to plaintiffs on an ongoing
basis. Compl. 15.
For simplicity’s sake, we exclude two groups of
documents from further discussion: the entirety of category (4)
above, and the portion of category (2) consisting of animal
inventories. As to these, the district court dismissed plaintiffs’
complaint under Rule 12(b)(6) on the ground that it failed to
say why they were covered by 5 U.S.C. § 552(a)(2), but
expressly made its ruling without prejudice. Plaintiffs do not
appeal those rulings.
In granting USDA’s motion to dismiss, the district court
reasoned in three steps. See Table 1. First, as to categories (1)–
(3) above, it concluded that “it appears” the agency had
reposted the requested materials, apart from animal inventories
in category (2). 285 F. Supp. 3d at 312. The court therefore
dismissed PETA’s claims under headings (1)–(3) as moot. It
likewise rejected the possibility that the “voluntary cessation”
doctrine negated USDA’s claim of mootness. Id. at 313. The
5
district court cited the temporary nature of the removals along
with statements made by USDA in its December 4, 2017, letter,
see J.A. 235–39, responding to the district court’s Minute Order
of November 27, 2017. The letter outlines the agency’s
progress in reposting materials and states its plans as to future
postings of existing and newly created records in certain
categories of documents. In light of its ruling on mootness, the
district court denied plaintiffs’ request for discovery against the
agency to probe its rationales for the takedown. 285 F. Supp.
3d at 315 n.7.
Second, the district court addressed the agency’s
redactions from the records taken down and then reposted. See
USDA Br. 8, 11, 19; see also J.A. 236. Though plaintiffs
objected to these redactions, the district court did not address
their demands because, on its view, the complaint did not
encompass those demands. 285 F. Supp. 3d at 313 n.3. Still,
the court left the door open for PETA to “raise challenges to the
redactions that now accompany these records,” id., perhaps by
amending its complaint or bringing another suit. (Plaintiffs did
not amend their complaint.)
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Table 1
Documents Plaintiffs Seek from USDA on Appeal
Category 1 Category 2 Category 3
Research Inspection Lists of entities
facility reports licensed under
annual (with animal AWA
reports inventories)
Reposted Yes Yes Yes
during (but not animal (monthly list of
litigation inventories; new active licensees,
redactions in registrants; no
some documents) real-time list)
Agency’s “reposted “now posting all” “posting the
intent in all” records reports for recent monthly list of
Dec. 4, & “intends to 3-year period, active (current)
2017, continue J.A. 236 licensees,” J.A.
letter, J.A. posting,” 237
235–39 J.A. 236
District Moot Moot Moot
court as to all but
disposition redactions
Failure to plead
as to new
redactions
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Third, the court dealt with the items that for simplicity’s
sake we are not addressing here, as we explained above. As to
them, plaintiffs have now filed a new lawsuit, which is not
before us, pressing these and other claims, including their
objections to USDA’s latest redactions. See People for the
Ethical Treatment of Animals, Inc., et al. v. Sonny Perdue, et
al. (PETA II), No. 18-cv-887-CRC (D.D.C. filed Apr. 16,
2018).
This appeal, then, centers on reposted records—both with
and without new redactions. We consider each in turn and
remand for further proceedings.
* * *
We first address reposted records diminished by new
redactions. The district court declined to consider PETA’s
objections on this score because those objections were not “part
of the complaint as filed,” which focused, in the district court’s
view, on the “wholesale removal of the records.” 285 F. Supp.
3d at 313 n.3. PETA contends that the district court erred. We
agree.
To begin with, since the new redactions post-date the filing
of the complaint, plaintiffs could have known of them at the
outset of litigation only in the most general way, as a possibility
of unknown scope. Cf. PETA Br. 39. More important, we
think the complaint can’t be reasonably read as demanding only
that the agency be required to restore mutilated versions of
documents previously published without redactions—at least
without the redactions in question. It states that “records that
for many years were easily accessible . . . are now no longer
readily available to Plaintiffs,” Compl. ¶ 31, and requests relief
“immediately” making “all such records that have been
removed available to Plaintiffs,” Compl. 15 (emphasis added).
The complaint, tellingly, is also not limited to talk of records.
8
It repeatedly speaks of information. And, as we have long said,
FOIA’s “focus . . . is information, not documents.” Kimberlin
v. Dep’t of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998) (quoting
Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d
242, 260 (D.C. Cir. 1977)). PETA alleges that “[d]efendants’
decision to remove from APHIS’s website the information that
is required to be affirmatively disclosed . . . violates FOIA,”
Compl. ¶ 36 (emphasis added), and its “actions in removing
such information . . . injure Plaintiffs by denying them
immediate electronic access to such records,” Compl. ¶ 37
(emphasis added). We read the complaint as demanding an
order requiring USDA to repost documents in their original,
pre-takedown form.
We thus remand to the district court to take up plaintiffs’
objections to new redactions from the reposted records on the
merits (including examining whether plaintiffs have satisfied
FOIA’s exhaustion requirements, 5 U.S.C. § 552(a)(6), and
substantive provisions).
* * *
We now turn to PETA’s argument that USDA’s reposting
of records did not moot the case even as to materials without
new redactions. Why so? PETA argues that USDA’s actions
and statements, taken as a whole, do not meet the high bar set
by the “voluntary cessation” doctrine.
We review the district court’s dismissal for lack of subject
matter jurisdiction on mootness grounds de novo, see, e.g., Del
Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321
(D.C. Cir. 2009); the parties agree on that standard of review,
see PETA Br. 26–27, USDA Br. 12. Though a motion to
dismiss is ordinarily handled on the pleadings, a defendant’s
claim of voluntary cessation requires an evaluation of
probabilities as to future conduct that can, as here, involve
9
detailed inquiry beyond the pleadings that is “a matter for the
trial judge.” United States v. Concentrated Phosphate Exp.
Ass’n, 393 U.S. 199, 204 (1968). A related inquiry takes place,
of course, whenever a plaintiff supplements the pleadings with
affidavits to establish a court’s jurisdiction. See Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (“In 12(b)(1)
proceedings, it has been long accepted that the judiciary may
make ‘appropriate inquiry’ beyond the pleadings to ‘satisfy
itself on authority to entertain the case.’” (quoting Gordon v.
Nat’l Youth Work Alliance, 675 F.2d 356, 362–63 (D.C. Cir.
1982) (citations omitted))). Though the inquiry into voluntary
cessation might be thought to invite a degree of deference to a
district court’s fact-finding role, our precedent appears not to
recognize it. But cf. Comm. in Solidarity with People of El
Salvador (CISPES) v. Sessions, 929 F.2d 742, 744–45 (D.C.
Cir. 1991) (crediting, with limited analysis, a district court’s
factual findings as to voluntary cessation on a motion to
dismiss). In any event, even with a more deferential posture,
we would remand for further proceedings in this case for the
reasons we explain below.
Typically, an end to offending behavior moots a case. But
there are exceptions. As relevant here, “[m]ere voluntary
cessation of allegedly illegal conduct does not moot a case,” for
a defendant may be “free to return to his old ways.”
Concentrated Phosphate, 393 U.S. at 203 (quotation marks and
citation omitted in second phrase). But again, there is “an
important exception to this important exception [to mootness].”
Troiano v. Supervisor of Elections in Palm Beach Cty., Fla.,
382 F.3d 1276, 1283 (11th Cir. 2004). If a defendant can
demonstrate that there is no reasonable expectation that the
allegedly unlawful conduct will recur, the claim may be moot.
“A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). In that
10
event, the “‘heavy burden of persua[ding]’ the court that the
challenged conduct cannot reasonably be expected to start up
again lies with the party asserting mootness,” id. (citation
omitted)—here, the agency.
That general principle must be read in light of the
“presumption of legitimacy accorded to the Government’s
official conduct,” to which the Supreme Court has referred in
the FOIA context. Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 174 (2004). A “presumption of regularity
supports the official acts of public officers and, in the absence
of clear evidence to the contrary, courts presume that they have
properly discharged their official duties.” Id. (quoting United
States v. Chemical Found. Inc., 272 U.S. 1, 14–15 (1926)). In
analyses of “voluntary cessation,” many of our sister circuits
have been ready to give declarations by (or on behalf of)
government officials––public servants sworn to uphold the
law––somewhat higher credence than statements made by
private parties. See, e.g., Sossamon v. Lone Star State of Texas,
560 F.3d 316, 325 (5th Cir. 2009) (“[G]overnment actors in
their sovereign capacity and in the exercise of their official
duties are accorded a presumption of good faith because they
are public servants, not self-interested private parties. Without
evidence to the contrary, we assume that formally announced
changes to official governmental policy are not mere litigation
posturing.”), aff’d sub nom. Sossamon v. Texas, 563 U.S. 277
(2011); accord America Cargo Transp., Inc. v. United States,
625 F.3d 1176, 1180 (9th Cir. 2010); Troiano, 382 F.3d at
1283; Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003);
Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988); see
also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1116 n.15 (10th Cir. 2010) (dictum to similar
effect); 13C Wright, Miller & Cooper, Federal Practice and
Procedure § 3533.7 (3d ed. 2008) (similar); cf. Meeropol v.
Meese, 790 F.2d 942, 952 (D.C. Cir. 1986) (holding that
affidavits of government officials are entitled to a presumption
11
of good faith in the context of locating responsive records to
FOIA requests); Ground Saucer Watch, Inc. v. CIA, 692 F.2d
770, 771 (D.C. Cir. 1981) (per curiam) (same).
PETA asserts that USDA has failed to satisfy the
“voluntary cessation” doctrine. PETA Br. 28–36. The district
court disagreed. It underscored the temporary nature of the
removals and, relying on statements in USDA’s letter of
December 4, 2017, see J.A. 235–39, concluded that “there is no
reasonable expectation the Department will remove the records
again,” 285 F. Supp. 3d at 313. Our view diverges from that of
the parties and the district court. On the present record, we
believe, there is not enough clarity fully to assess the agency’s
intentions with respect to future posting of certain categories of
records.
The USDA letter is incomplete in key respects. It doesn’t
express the agency’s position clearly enough to convince us
that, as to all requested document types, it is “absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur,” Laidlaw, 528 U.S. at 189 (emphasis added)
(citation omitted)—even once we credit a presumption of
regularity afforded to government parties.
Before addressing USDA representations as to each
category, we note three pertinent elements of the context. First,
USDA’s aim in removing the records was to enhance privacy
protections. Not only is this objective unproblematic in itself,
but new administrations are entitled to reevaluate and modify
agency practices, even longstanding ones. Cf. Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 59 (1983) (Rehnquist, J., concurring in part, dissenting
in part) (“A change in administration brought about by the
people casting their votes is a perfectly reasonable basis for an
executive agency’s reappraisal of the costs and benefits of its
programs and regulations.”). Second, the district court
12
understood USDA’s announcement of February 3, 2017, as
implying the takedowns would be temporary. See 285 F. Supp.
3d at 313. (“[F]rom the beginning, the Department has
indicated—and both parties have recognized—that the removal
was a temporary measure”). USDA has lived up to this view
by beginning to repost numerous records quite promptly. See
id. at 311. Third, USDA did not shift its rationale after PETA
filed suit or engage in “transitory litigation postur[ing],”
America Cargo Transp., 625 F.3d at 1180, or in the equivalent
of what the Court has called “postcertiorari maneuvers,” Knox
v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 307
(2012).
Proceeding by category, we address research facility
annual reports, inspection reports (sans animal inventories),
and lists of entities regulated under the AWA.
Research Reports. Here the agency has adequately
expressed its forward-looking plans. “APHIS intends to
continue posting annual reports going forward consistent with
its practice prior to February 3, 2017.” J.A. 236.
With respect to the remaining two categories, inspection
reports and entity lists, however, the record is less certain.
USDA explains that it “is now posting all inspection reports for
the most recent three-year period,” id., and says that “APHIS
posts new inspection reports on a rolling basis,” “limited to the
most recent three-year period,” J.A. 236–37. USDA’s
treatment of entity lists is similarly confined to a description of
currently ongoing practice. It explains that it “is posting the
monthly list of active (current) licensees and registrants that are
regulated under the AWA on the agency’s website,” but doesn’t
broach future plans. Id. at 237.
Given the forward-looking character of the inquiry into a
defendant’s intent, these fall short of the necessary precision.
13
That is especially so given the agency’s view that its ongoing
postings are discretionary. See USDA Br. 6, 12, 20.
Put differently, the December 4, 2017 letter’s treatment of
inspection reports and entity lists falls short of the kinds of
statements that courts have credited in the very cases the
agency cites. See USDA Br. 18. In one instance, government
counsel committed an agency to a “new permanent policy” that
“agreed with” plaintiff’s position. America Cargo Transp., 625
F.3d at 1180 (emphasis added in first quotation). In another
context, a court found governmental “self-correction” that
“appears genuine,” Ragsdale, 841 F.2d at 1365, based on a
“public policy of non-enforcement” of a requirement that was
“barred by clear Supreme Court precedent,” id. at 1365–66, and
had “no real prospect” of repetition, id. at 1366. In a third, a
court laid stress on “formally announced changes to official
governmental policy.” Sossamon, 560 F.3d at 325. And in a
fourth, the government gave exactly the “relief plaintiffs
requested.” CISPES, 929 F.2d at 742. Neither USDA’s letter,
nor the representations in its briefing or at oral argument,
exhibits this level of clarity about inspection reports and entity
lists.
We thus remand for clarification with respect to USDA’s
future plans to post inspection reports (apart from animal
inventories) and lists of AWA regulated entities—and would
have done so even had we accorded deference to factual
findings of the district court. If the agency makes clear that it
commits to timely posting on an ongoing basis, such a
declaration will moot PETA’s non-redaction claims.
In light of USDA’s seemingly unproblematic rationale for
removing the records; the one-time nature of the takedown; the
absence of any signs of bad faith in litigation; and a
presumption of regularity when government officials express a
clear intention to do as the complaint requests, we conclude that
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a declaration by (or on behalf of) USDA officials that the
agency intends to post documents in the inspection reports and
entity lists categories on an ongoing basis will moot PETA’s
claims. This is so, we emphasize, even though USDA
continues to assert that posting the records is a matter of
discretion, rather than a FOIA-imposed duty (as plaintiffs
would have it). Given our holding, we find that the district
court did not abuse its discretion in denying plaintiffs’ request
for discovery against the agency aimed at showing that the
“voluntary cessation” doctrine isn’t met. See 285 F. Supp. 3d
at 315 n.7; Citizens for Responsibility & Ethics in Washington
v. Office of Admin., 566 F.3d 219, 221 (D.C. Cir. 2009).
* * *
To sum up, as to reposted records featuring new
redactions, the complaint is most plausibly read as requesting
that USDA repost all information that those records contained
before their takedown. The district court should thus proceed
to the merits on remand. As to “voluntary cessation,” we affirm
the mootness dismissal as to the research reports but remand
for further elucidation as to the inspection reports and the entity
lists. If the agency unambiguously commits to continued
posting of those documents, plaintiffs’ claims should be
dismissed as moot, without discovery, even if USDA continues
to regard its postings as voluntary.
So ordered.