Animal Legal Def. Fund v. Dep't of Agric., No. 17-16858, 2019 WL 4062524 (9th Cir. Aug. 29, 2019) (Smith, N. R., J.)

Animal Legal Def. Fund v. Dep't of Agric., No. 17-16858, 2019 WL 4062524 (9th Cir. Aug. 29, 2019) (Smith, N. R., J.)

Re:  Challenging decision to remove certain documents from agency online reading room

Disposition:  Affirming in part, reversing and remanding in part district court's grant of government's motion to dismiss

• Proactive Disclosures & Litigation Considerations, Standing:  The Court of Appeals for the Ninth Circuit holds that "[it has] satisfied [its] 'independent obligation' to assure [itself] that Plaintiffs have standing."  The court finds that "[t]he 'invasion of a legally protected interest,' . . . occurs when the agency decides not to post records qualifying for § 552(a)(2) treatment, or when a plaintiff visits the online reading room and information required to be there is nowhere to be found."  "Further, [the requester's] decision to remove categories of records alleged to fall under § 552(a)(2) from its online reading room has caused Plaintiffs the type of harm Congress sought to prevent by obligating agencies to post these documents."  The court finds that "[the requesters'] inability to inspect documents in virtual reading rooms harmed them in real-world ways; their injuries are different from the injuries sustained by other Americans who never regularly visited these online reading rooms."  "Additionally, their alleged injuries are 'fairly traceable' to the agency's action, and likely to be redressed by their requested relief."
   
• Proactive Disclosures & Litigation Considerations, Jurisdiction:  The Court of Appeals for the Ninth Circuit "interpret[s] the words 'to enjoin the agency from withholding agency records' to mean what they say:  FOIA authorizes district courts to stop the agency from holding back records it has a duty to make available, which includes requiring an agency to post § 552(a)(2) documents online."  The court also finds "the basic proposition that FOIA expressly contemplates judicial review of § 552(a)(2) violations."  "To conclude otherwise would conflict with the plain text of the judicial-review provision and the statute's 'duty-breach' structure."  "Indeed, immediately following the language creating jurisdiction 'to enjoin' agencies from withholding records, FOIA expressly provides the standard for reviewing 'feasibility' under § 552(a)(2)(C)."  Finally, the court finds that "the Supreme Court has interpreted the equitable power of district courts under FOIA broadly."
  
  The court also specifically finds that "[it] decline[s] to follow [the Court of Appeals for the District of Columbia's] decision [concerning this issue in Citizens for Responsibility & Ethics in Washington v. DOJ, 846 F.3d 1235, 1245 (D.C. Cir. 2017)] for several reasons."  "First, [the D.C. Circuit's decision] renders the reading-room provision into precatory language, despite § 552(a)(2) imposing a mandatory duty for agencies to make certain records 'available for public inspection' and § 552(a)(4)(B) granting 'jurisdiction to enjoin the agency from withholding agency records.'"  "[The court] can easily imagine the significant implications of rendering § 552(a)(2) a dead letter; an agency would have no enforceable duty to post its important staff manuals, or its interpretation of the statute it’s charged with enforcing, or its final opinions in agency adjudication."  "Second, the argument that FOIA's judicial-review provision is limited to 'relieving the injury suffered by the individual complainant, not by the general public' is a red herring."  "The injuries complained of here are injuries sustained by individuals."  "Ordering an agency to upload records that FOIA mandates agencies will post in reading rooms would provide relief to plaintiffs, like those here, injured by the agency's failure to make those records so available."  "Third, [the D.C. Circuit] failed to appreciate how courts enforce other provisions of the U.S. Code that require agencies to post or publish records."  The court explains that "FOIA unequivocally mandates that agencies 'shall make available' certain documents in virtual reading rooms."  Fourth, the court holds that "D.C. Circuit law on this issue does not seem settled."  The court relates that, in a recent opinion "the D.C. Circuit seemed to read [its earlier decision on this issue] narrowly, as though that earlier decision was limited to the proposition that '[the requester in that lawsuit] improperly brought its claim under the [APA] instead of FOIA's judicial-review provision.'"
  
  Circuit Judge Callahan, dissenting in part, "would hold that the [FOIA] provides an adequate alternate remedy and that 'courts lack authority under FOIA to order agencies to "make [records] available for public inspection."'"  "This holding is founded on the determination that 'Section 552(a)(4)(B) . . . "is aimed at relieving the injury suffered by the individual complainant, not by the general public" as "[i]t allows district courts to order 'the production of any agency records improperly withheld from the complainant,' not agency records withheld from the public."'"
   
• Proactive Disclosures & Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the Ninth Circuit holds that "judicial power to adjudicate a claim that an agency has violated § 552(a)(2)'s obligation to post agency records online does not turn on a request."  "Moreover, the district court dismissed the case for lack of subject matter jurisdiction without addressing the exhaustion question, so the issue is not even properly before [the court]."  "Accordingly, [the court] leave[s] it to the district court on remand to decide in the first instance whether Plaintiffs have exhausted their reading-room claim, or whether such exhaustion would be futile."