935 F.3d 858
9th Cir.2019Background
- APHIS (USDA) historically posted five categories of enforcement and compliance records (annual reports, inspection reports, official warning letters, pre‑litigation settlement agreements, administrative complaints) in online reading rooms; it removed many of these databases in 2017 citing redaction/privacy concerns and now posts only statistical summaries for some categories.
- Plaintiffs (animal‑welfare organizations) allege the removed materials are ‘‘frequently requested’’ and/or final agency opinions/orders and therefore must be made available for public inspection in electronic form under FOIA § 552(a)(2).
- Plaintiffs say removal caused concrete informational and procedural injuries: increased FOIA requests, slower access, stale information, and loss of the watchdog functions they performed using the online reading rooms.
- The district court dismissed for lack of subject‑matter jurisdiction, holding courts cannot compel agencies to publish records to the general public under FOIA’s reading‑room provision; it also dismissed APA claims.
- On appeal, the Ninth Circuit (majority) held plaintiffs have standing, district courts have authority under 5 U.S.C. § 552(a)(4)(B) to enjoin agencies from withholding records and to order compliance with § 552(a)(2), reversed dismissal of FOIA claim, but affirmed dismissal of the APA claims and remanded for further proceedings (including exhaustion issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Plaintiffs suffered concrete informational and procedural injuries from loss of online public access (timeliness, cost, degraded advocacy). | No challenge to standing; agency argued broader remedies unnecessary. | Plaintiffs have standing (informational + procedural injuries tied to FOIA duties). |
| Scope of § 552(a)(4)(B) relief — can courts order posting to public reading rooms? | FOIA authorizes courts to enjoin withholding and thus may order agencies to comply with § 552(a)(2) by posting records publicly. | Judicial relief limited to ordering production of records to the individual complainant, not forcing public posting (D.C. Cir. precedent). | Court may enjoin agencies from withholding and may order compliance with § 552(a)(2) (i.e., post records online). |
| Exhaustion of administrative remedies | Not a jurisdictional prerequisite for § 552(a)(2) claims; plaintiffs may sue without first making a specific posting request. | Plaintiffs should exhaust by requesting reposting or specific records before suit. | Exhaustion is not jurisdictional here; district court should decide exhaustion/futility on remand. |
| APA claims (failure‑to‑act / arbitrary & capricious) | Agency’s deletion of databases is final agency action reviewable under the APA. | FOIA provides an adequate, specific remedy; FOIA displacement of APA when FOIA provides meaningful relief. | APA claims were dismissed: FOIA provides the appropriate review mechanism; dismissal of APA claims affirmed. |
Key Cases Cited
- Dep't of the Air Force v. Rose, 425 U.S. 352 (1976) (FOIA's purpose: pierce administrative secrecy and promote public scrutiny)
- Public Citizen v. Department of Justice, 491 U.S. 440 (1989) (FOIA redresses denial of access to records and supports informational standing)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (procedural‑right violations can confer standing when Congress identified the harm)
- Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974) (FOIA grants district courts broad equitable jurisdiction to enjoin withholding)
- Kennecott Utah Copper Corp. v. Department of Interior, 88 F.3d 1191 (D.C. Cir. 1996) (discussed limits on compelling publication in Federal Register; relied on by D.C. Circuit to narrow FOIA relief)
- Citizens for Responsibility & Ethics in Washington v. DOJ (CREW I), 846 F.3d 1235 (D.C. Cir. 2017) (held FOIA relief limited to production to complainant; used Kennecott reasoning)
- Citizens for Responsibility & Ethics in Washington v. DOJ (CREW II), 922 F.3d 480 (D.C. Cir. 2019) (later D.C. Circuit decision addressing reading‑room claims under FOIA)
- Long v. Internal Revenue Service, 693 F.2d 907 (9th Cir. 1982) (courts may craft injunctive relief to bar future FOIA violations)