Animal Legal Defense Fund v. U.S. Dep't of Agric.

• Decision Date: 12 August 2019
• Docket Number: No. 18-16327,18-16327
• Parties: ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE; Animal and Plant Health Inspection Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

933 F.3d 1088

ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant,

v.UNITED STATES DEPARTMENT OF AGRICULTURE; Animal and Plant Health Inspection Service, Defendants-Appellees.

No. 18-16327

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2019 Anchorage, Alaska

Filed August 12, 2019

Matthew G. Liebman (argued), Animal Legal Defense Fund, Cotati, California; Anthony T. Eliseuson, Animal Legal Defense Fund, Chicago, Illinois; Daniel H. Waltz, Animal Legal Defense Fund, Washington, D.C.; for Plaintiff-Appellant.

John Samuel Koppel (argued) and Mark B. Stern, Appellate Staff; Alex G. Tse, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.

W. FLETCHER, Circuit Judge:

The Freedom of Information Act ("FOIA") provides for expedited processing of records where "failure to obtain requested records on an expedited basis ... could reasonably be expected to pose an imminent threat to the life or physical safety of an individual." 5 U.S.C. § 552(a)(6)(E)(v)(I). We are asked to decide whether the term "individual" in this context includes an animal as well as a human being. We conclude it does not. We accordingly affirm the district court’s grant of summary judgment in favor of Defendants-Appellees U.S. Department of Agriculture and its sub-agency, the Animal and Plant Health Inspection Service (collectively, "USDA").

I. Background

Plaintiff-Appellant Animal Legal Defense Fund ("ALDF") is a non-profit organization dedicated to using the legal system to improve the lives and promote the interests of animals.

Since 2014, ALDF had been involved in state court litigation concerning a tiger named Tony who was being displayed in a cage at a Louisiana truck stop. In March 2017, ALDF learned from a veterinarian with special expertise in tigers that Tony was suffering from serious health issues. On April 7, 2017, ALDF asked USDA to carry out an Animal Welfare Act ("AWA") inspection to ascertain whether Tony was getting adequate care. USDA responded on April 10 in a letter stating, "If you wish to know the results of our findings, you must send a request, in writing, to our Freedom of Information Act Office." AWA inspection reports had previously been posted on USDA’s website. However, following a policy change in February 2017, inspection reports that have not received final adjudication are available only by FOIA request. See USDA Announcement, Updates to APHIS’ Website Involving Animal Welfare Act and Horse Protection Act Compliance Information (Feb. 15, 2017).

ALDF submitted a FOIA request on May 4, 2017, for records concerning its inspection request. ALDF sought expedited processing of its request pursuant to 5 U.S.C. § 552(a)(6)(E)(v)(I), asserting that failure to expedite the records could reasonably be expected to pose an imminent threat to Tony’s life and physical safety. On May 11, 2017, USDA denied the expedited processing request on the ground that "Tony the Tiger is not considered an ‘individual’ " under 7 C.F.R. § 1.9(b)(l), the USDA regulation implementing § 552(a)(6)(E)(v)(I). ALDF filed an administrative appeal, but USDA did not issue a determination in that appeal.

On July 11, 2017, ALDF filed a complaint in district court challenging USDA’s practice of denying requests for expedited processing of AWA-related FOIA requests. The complaint sought a declaration that the term "individual" in § 552(a)(6)(E)(v)(I) includes an animal, and a permanent injunction requiring USDA to treat animals as "individuals" for the purposes of expedited processing under the statute.

While the case was pending, ALDF made additional FOIA requests for expedited processing of USDA records related to animals protected under the AWA. On July 20, 2017, ALDF requested expedited processing of records related to the Puerto Rico Zoo. On the same day, ALDF requested expedited processing of records regarding arctic foxes living at Deer Haven Mini Zoo in Maryland. On August 18, 2017, ALDF requested expedited processing of records pertaining to Cricket Hollow Zoo, a roadside zoo in Iowa. USDA rejected the first two requests on the ground that "the term individual in this context encompasses human beings and not animals" and had not responded to the third request at the time the record was made in this appeal.

In response to ALDF’s request for records about Tony, USDA released four pages of responsive records on August 14, 2017, over three months after the request was made. A month and a half later, on October 3, 2017, USDA informed ALDF that it had located additional records responsive to ALDF’s request and would release the records by October 20, 2017. On October 16, 2017, the truck stop owner euthanized Tony. Four days later, USDA provided forty-three pages of records to complete its response to ALDF’s FOIA request regarding Tony.

The parties filed cross-motions for summary judgment. The district court granted summary judgment to USDA on May 25, 2018, holding that the term "individual" in FOIA’s expedited processing provision does not include animals. ALDF timely appealed.

II. Jurisdiction

We ordinarily have jurisdiction under 28 U.S.C. § 1291 to review a summary judgment order. If the district court lacked subject matter jurisdiction, however, "we would have jurisdiction to correct the jurisdictional error, but not to entertain the merits of an appeal." Matheson v. Progressive Specialty Ins. Co. , 319 F.3d 1089, 1090 (9th Cir. 2003).

In the district court, USDA argued that the court lacked subject matter jurisdiction over the suit for two reasons: first, that the case was moot and no longer a case or controversy under Article III and, second, that FOIA’s jurisdiction-stripping provision applied. The district court disagreed and held that it had jurisdiction. USDA does not contest this ruling on appeal. However, "we are obliged to raise sua sponte issues concerning district courts’ subject matter jurisdiction." Randolph v. Budget Rent-A-Car , 97 F.3d 319, 323 (9th Cir. 1996). We hold that the district court had subject matter jurisdiction.

A case is moot if "the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). USDA argued below that ALDF’s suit was moot because the agency had provided all the records responsive to ALDF’s request, with the result that the court could no longer "grant any effectual relief" to ALDF. See Knox v. Serv. Emps. Int’l Union , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (internal quotation marks omitted). We agree with the district court. Because ALDF asserted a "pattern or practice" FOIA claim, its suit is not moot.

In FOIA cases, we distinguish between "specific request" claims and "pattern or practice" claims. Hajro v. U.S. Citizenship & Immigration Servs. , 811 F.3d 1086, 1102–03 (9th Cir. 2016). A "specific request" claim seeks production of a particular record that has allegedly been improperly withheld. Id. at 1103 (citing Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) ). By contrast, a "pattern or practice" claim alleges that "an agency policy or practice will impair the party’s lawful access to information in the future." Id. (quoting Payne Enters., Inc. v. United States , 837 F.2d 486, 491 (D.C. Cir. 1988) ).

A "specific request" claim is mooted by the agency’s production of all non-exempt requested records. Id. But where, as here, "a plaintiff alleges a pattern or practice of FOIA violations and seeks declaratory or injunctive relief," those claims are not mooted by the production of requested documents if the plaintiff can show: "(1) the agency’s FOIA violation was not merely an isolated incident, (2) the plaintiff was personally harmed by the alleged policy, and (3) the plaintiff himself has a sufficient likelihood of future harm by the policy or practice." Id.

Though we conclude on the merits that no FOIA violation occurred, the violations that ALDF alleges meet the three prongs of Hajro ’s "pattern or practice" test. First, the FOIA violation alleged with respect to Tony was not an isolated incident. ALDF alleges other instances in which USDA denied expedited processing to ALDF based on USDA’s definition of "individual." See id. at 1104 (noting that a plaintiff can satisfy the first prong by "provid[ing] evidence that he has been subjected to a FOIA violation more than once"). Second, ALDF was "personally harmed" because it filed several requests and was denied expedited processing on the basis of the challenged policy. See id. at 1106 (holding that prong two is met if the plaintiff "personally filed a request, and that request was delayed"). Third, ALDF is likely to be harmed in the future by USDA’s policy. ALDF’s mission centers on animal welfare, and ALDF is likely to make future FOIA requests where it believes there is "an imminent threat to the life or physical safety" of an animal. See id. (holding that the third prong is met if the plaintiff "will likely file more FOIA requests with [the agency] in the future"). We therefore hold that the case is not moot.

USDA also argued below that FOIA’s jurisdiction-stripping provision divested the district court of jurisdiction. That provision states, "A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request." 5 U.S.C. § 552(a)(6)(E)(iv). So far as we are aware, no court has yet analyzed this provision. We hold today that where a plaintiff asserts a "pattern or practice" claim that satisfies Hajro ’s three-pronged test, § 552(a)(6)(E)(iv) does not bar the plaintiff’s action. In a "pattern or...