Humane Soc'y of the U.S. v. U.S. Fish & Wildlife Serv., No. 19-1678, 2020 WL 7042686 (4th Cir. Dec. 1, 2020) (per curiam)

Humane Soc'y of the U.S. v. U.S. Fish & Wildlife Serv., No. 19-1678, 2020 WL 7042686 (4th Cir. Dec. 1, 2020) (per curiam)

Re:  Request for defendant to post information concerning permit and application documents created pursuant to the Endangered Species Act regarding the import of trophy heads, hides, tusks, or other parts of African lions or elephants in a public online reading room

Disposition:  Affirming district court's dismissal of plaintiffs' amended complaint

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The Court of Appeals for the Fourth Circuit "affirm[s] the dismissal of [the requesters'] claims based on FWS's alleged failure to post material to its reading room."  The court finds that "[the requesters] have not carried their burden to demonstrate 'clear evidence' that any of their requests were not posted in the reading room, nor have they demonstrated the district court clearly erred in so finding."  Additionally, the court finds that "the district court was correct that [the requesters'] own actions of re-requesting documents and asking that they be posted effectively mooted their claims."  "Because [the government] 'complied with [those] requests,' [the requesters] 'own doing' 'sap[ped] the controversy of vitality.'"
   
• Litigation Considerations, Relief:  Regarding the requesters' request for the Court of Appeals for the Fourth Circuit "to order [defendant] to 'make the [elephant and lion permit] records' available 'on an ongoing basis' 'electronically and in a timely manner after the receipt or creation of such records,'" the court holds that "FOIA does not entitle [the requesters] to the prospective relief they seek as to documents not yet in existence."  The court "do[es] not hold that [the requesters] can never receive injunctive relief pursuant to Section 552(a)(4)(B)."  "But where all [of the requesters] eFOIA requests have been satisfied (per the district court's finding), and the prospective relief sought is with regard to documents not yet created, [the court] fail[s] to see how FOIA provides any 'entitle[ment] . . . to relief.'"
  
  "Finally, [the requesters'] claim that FWS improperly indexed its records suffers from the same fatal flaw as their claim for prospective relief."  "There is no reasonable reading of the remedial provision that demonstrates entitlement to relief based upon the sufficiency of a FOIA index."  "In any event, the statute requires a 'general index,' § 552(a)(2)(E), which it does not define."  "The records in this case are delineated by species, and Appellants cite no persuasive authority that this is somehow insufficient."