Am. Soc’y for Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., No. 21-1489, 2023 WL 2026831 (2d Cir. Feb. 16, 2023) (per curiam)

Am. Soc’y for Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., No. 21-1489, 2023 WL 2026831 (2d Cir. Feb. 16, 2023) (per curiam)

Re:  Twenty-six requests concerning administration and enforcement of Animal Welfare Act

Disposition:  Affirming district court’s grant in part of government’s motion for summary judgment

• Litigation Considerations, Pattern-or-Practice Claims & Proactive Disclosures:  The Court of Appeals for the Second Circuit “agree[s] with the district court that, even assuming that a ‘policy or practice’ claim is cognizable, the [requester] failed to state such a claim against the agencies because the Further Consolidated Appropriations Act of 2020 reversed the alleged policy or practice.”  The court relates that “[t]he allegations focused on the agencies’ decommissioning of two public databases that included frequently requested documents.”  The court notes that “[t]he Act directed the agencies to ‘restore’ each decommissioned database ‘and its contents’ to the status quo ante and to ‘make publicly available’ in the databases the [Animal Welfare Act] inspection reports and enforcement records that the [requester] had sought in this litigation.”  “The Act also required that such records be made available ‘in their entirety without redactions except signatures.’”  “These requirements address both aspects of the [requester’s] policy or practice claim – the alleged delays in responding to requests and the allegedly excessive withholdings and redactions.”  The court relates that “the [requester] suggests that its allegation of improper redaction can stand apart from the allegation of unlawful delay.”  The court finds that “[a] claim based on this allegation cannot survive the intervening change in law that required not only the recommissioning of the databases but also the publication of the records ‘in their entirety without redactions except signatures.’”  “[The court] thus reach[es] the same conclusion as the district court that the [requester] has not stated a claim on which relief may be granted.”
  
  Circuit Judge Menashi, concurring in the judgment, “write[s] separately to explain that a ‘policy or practice’ claim is not cognizable under the FOIA.”  Judge Menashi believes that “[FOIA’s] statutory scheme authorizes a federal district court to provide the narrow remedies of enjoining an agency from improperly withholding records and ordering it to disclose the requested records that were improperly withheld.”  “It does not authorize a court to superintend the policies and practices of that agency.”  “The proper avenue for challenging the policies and practices of agencies is the [Administrative Procedure Act] .