PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, ET AL., v. UNITED STATES DEPARTMENT OF AGRICULTURE AND ANIMAL AND PLANT HEALTH INSPECTION SERVICE
No. 18-5074
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2019 Decided March 15, 2019
Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-00269)
John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Mark B. Stern, Attorney. Michael S. Raab and Daniel Tenny, Attorneys, entered appearances.
Before: GARLAND, Chief Judge, KATSAS, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
The district court dismissed all claims on varying grounds: (1) on the merits—as to certain issues not appealed; (2) on mootness with regard to material restored by USDA to the website, and (3) as to redactions from restored materials, on the ground that plaintiffs’ complaint did not address them. We reverse on the last issue without reaching the merits, and we remand for further factual clarification bearing on plaintiffs’ contention that USDA‘s voluntary cessation of unlawful activity renders mootness inapplicable. We affirm the district court‘s refusal to grant discovery against the agency.
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Plaintiffs seek documents from the Animal and Plant Health Inspection Service (“APHIS“), the entity within USDA that administers the Animal Welfare Act (“AWA“),
On February 13, 2017, plaintiffs filed this suit asking for declaratory and injunctive relief, invoking what is known as FOIA‘s “reading room” provision,
Plaintiffs allege that they depend on these documents for, inter alia, scholarly endeavors, see Compl. ¶ 5, and wide-ranging advocacy work, including unearthing and correcting
PETA asked for an order requiring that USDA “immediately” “make all . . . records” described in the complaint available by electronic means. It also sought a declaration that USDA had violated FOIA by removing the documents, along with an injunction ordering the agency to “make all such records available” to plaintiffs on an ongoing basis. Compl. 15.
For simplicity‘s sake, we exclude two groups of documents from further discussion: the entirety of category (4) above, and the portion of category (2) consisting of animal inventories. As to these, the district court dismissed plaintiffs’ complaint under Rule 12(b)(6) on the ground that it failed to say why they were covered by
In granting USDA‘s motion to dismiss, the district court reasoned in three steps. See Table 1. First, as to categories (1)–(3) above, it concluded that “it appears” the agency had reposted the requested materials, apart from animal inventories in category (2). 285 F. Supp. 3d at 312. The court therefore dismissed PETA‘s claims under headings (1)–(3) as moot. It likewise rejected the possibility that the “voluntary cessation” doctrine negated USDA‘s claim of mootness. Id. at 313. The
Second, the district court addressed the agency‘s redactions from the records taken down and then reposted. See USDA Br. 8, 11, 19; see also J.A. 236. Though plaintiffs objected to these redactions, the district court did not address their demands because, on its view, the complaint did not encompass those demands. 285 F. Supp. 3d at 313 n.3. Still, the court left the door open for PETA to “raise challenges to the redactions that now accompany these records,” id., perhaps by amending its complaint or bringing another suit. (Plaintiffs did not amend their complaint.)
Documents Plaintiffs Seek from USDA on Appeal
| Category 1 | Category 2 | Category 3 | |
| Research facility annual reports | Inspection reports (with animal inventories) | Lists of entities licensed under AWA | |
| Reposted during litigation | Yes | Yes (but not animal inventories; new redactions in some documents) | Yes (monthly list of active licensees, registrants; no real-time list) |
| Agency‘s intent in Dec. 4, 2017, letter, J.A. 235–39 | “reposted all” records & “intends to continue posting,” J.A. 236 | “now posting all” reports for recent 3-year period, J.A. 236 | “posting the monthly list of active (current) licensees,” J.A. 237 |
| District court disposition | Moot | Moot as to all but redactions; Failure to plead as to new redactions | Moot |
This appeal, then, centers on reposted records—both with and without new redactions. We consider each in turn and remand for further proceedings.
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We first address reposted records diminished by new redactions. The district court declined to consider PETA‘s objections on this score because those objections were not “part of the complaint as filed,” which focused, in the district court‘s view, on the “wholesale removal of the records.” 285 F. Supp. 3d at 313 n.3. PETA contends that the district court erred. We agree.
To begin with, since the new redactions post-date the filing of the complaint, plaintiffs could have known of them at the outset of litigation only in the most general way, as a possibility of unknown scope. Cf. PETA Br. 39. More important, we think the complaint can‘t be reasonably read as demanding only that the agency be required to restore mutilated versions of documents previously published without redactions—at least without the redactions in question. It states that “records that for many years were easily accessible . . . are now no longer readily available to Plaintiffs,” Compl. ¶ 31, and requests relief “immediately” making “all such records that have been removed available to Plaintiffs,” Compl. 15 (emphasis added). The complaint, tellingly, is also not limited to talk of records.
We thus remand to the district court to take up plaintiffs’ objections to new redactions from the reposted records on the merits (including examining whether plaintiffs have satisfied FOIA‘s exhaustion requirements,
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We now turn to PETA‘s argument that USDA‘s reposting of records did not moot the case even as to materials without new redactions. Why so? PETA argues that USDA‘s actions and statements, taken as a whole, do not meet the high bar set by the “voluntary cessation” doctrine.
We review the district court‘s dismissal for lack of subject matter jurisdiction on mootness grounds de novo, see, e.g., Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009); the parties agree on that standard of review, see PETA Br. 26–27, USDA Br. 12. Though a motion to dismiss is ordinarily handled on the pleadings, a defendant‘s claim of voluntary cessation requires an evaluation of probabilities as to future conduct that can, as here, involve
Typically, an end to offending behavior moots a case. But there are exceptions. As relevant here, “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case,” for a defendant may be “free to return to his old ways.” Concentrated Phosphate, 393 U.S. at 203 (quotation marks and citation omitted in second phrase). But again, there is “an important exception to this important exception [to mootness].” Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1283 (11th Cir. 2004). If a defendant can demonstrate that there is no reasonable expectation that the allegedly unlawful conduct will recur, the claim may be moot. “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). In that
That general principle must be read in light of the “presumption of legitimacy accorded to the Government‘s official conduct,” to which the Supreme Court has referred in the FOIA context. Nat‘l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). A “presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Id. (quoting United States v. Chemical Found. Inc., 272 U.S. 1, 14–15 (1926)). In analyses of “voluntary cessation,” many of our sister circuits have been ready to give declarations by (or on behalf of) government officials––public servants sworn to uphold the law––somewhat higher credence than statements made by private parties. See, e.g., Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009) (“[G]overnment actors in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties. Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.“), aff‘d sub nom. Sossamon v. Texas, 563 U.S. 277 (2011); accord America Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010); Troiano, 382 F.3d at 1283; Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003); Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 n.15 (10th Cir. 2010) (dictum to similar effect); 13C Wright, Miller & Cooper, Federal Practice and Procedure § 3533.7 (3d ed. 2008) (similar); cf. Meeropol v. Meese, 790 F.2d 942, 952 (D.C. Cir. 1986) (holding that affidavits of government officials are entitled to a presumption
PETA asserts that USDA has failed to satisfy the “voluntary cessation” doctrine. PETA Br. 28–36. The district court disagreed. It underscored the temporary nature of the removals and, relying on statements in USDA‘s letter of December 4, 2017, see J.A. 235–39, concluded that “there is no reasonable expectation the Department will remove the records again,” 285 F. Supp. 3d at 313. Our view diverges from that of the parties and the district court. On the present record, we believe, there is not enough clarity fully to assess the agency‘s intentions with respect to future posting of certain categories of records.
The USDA letter is incomplete in key respects. It doesn‘t express the agency‘s position clearly enough to convince us that, as to all requested document types, it is ”absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Laidlaw, 528 U.S. at 189 (emphasis added) (citation omitted)—even once we credit a presumption of regularity afforded to government parties.
Before addressing USDA representations as to each category, we note three pertinent elements of the context. First, USDA‘s aim in removing the records was to enhance privacy protections. Not only is this objective unproblematic in itself, but new administrations are entitled to reevaluate and modify agency practices, even longstanding ones. Cf. Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part, dissenting in part) (“A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency‘s reappraisal of the costs and benefits of its programs and regulations.“). Second, the district court
Proceeding by category, we address research facility annual reports, inspection reports (sans animal inventories), and lists of entities regulated under the AWA.
Research Reports. Here the agency has adequately expressed its forward-looking plans. “APHIS intends to continue posting annual reports going forward consistent with its practice prior to February 3, 2017.” J.A. 236.
With respect to the remaining two categories, inspection reports and entity lists, however, the record is less certain. USDA explains that it “is now posting all inspection reports for the most recent three-year period,” id., and says that “APHIS posts new inspection reports on a rolling basis,” “limited to the most recent three-year period,” J.A. 236–37. USDA‘s treatment of entity lists is similarly confined to a description of currently ongoing practice. It explains that it “is posting the monthly list of active (current) licensees and registrants that are regulated under the AWA on the agency‘s website,” but doesn‘t broach future plans. Id. at 237.
Given the forward-looking character of the inquiry into a defendant‘s intent, these fall short of the necessary precision.
Put differently, the December 4, 2017 letter‘s treatment of inspection reports and entity lists falls short of the kinds of statements that courts have credited in the very cases the agency cites. See USDA Br. 18. In one instance, government counsel committed an agency to a “new permanent policy” that “agreed with” plaintiff‘s position. America Cargo Transp., 625 F.3d at 1180 (emphasis added in first quotation). In another context, a court found governmental “self-correction” that “appears genuine,” Ragsdale, 841 F.2d at 1365, based on a “public policy of non-enforcement” of a requirement that was “barred by clear Supreme Court precedent,” id. at 1365–66, and had “no real prospect” of repetition, id. at 1366. In a third, a court laid stress on “formally announced changes to official governmental policy.” Sossamon, 560 F.3d at 325. And in a fourth, the government gave exactly the “relief plaintiffs requested.” CISPES, 929 F.2d at 742. Neither USDA‘s letter, nor the representations in its briefing or at oral argument, exhibits this level of clarity about inspection reports and entity lists.
We thus remand for clarification with respect to USDA‘s future plans to post inspection reports (apart from animal inventories) and lists of AWA regulated entities—and would have done so even had we accorded deference to factual findings of the district court. If the agency makes clear that it commits to timely posting on an ongoing basis, such a declaration will moot PETA‘s non-redaction claims.
In light of USDA‘s seemingly unproblematic rationale for removing the records; the one-time nature of the takedown; the absence of any signs of bad faith in litigation; and a presumption of regularity when government officials express a clear intention to do as the complaint requests, we conclude that
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To sum up, as to reposted records featuring new redactions, the complaint is most plausibly read as requesting that USDA repost all information that those records contained before their takedown. The district court should thus proceed to the merits on remand. As to “voluntary cessation,” we affirm the mootness dismissal as to the research reports but remand for further elucidation as to the inspection reports and the entity lists. If the agency unambiguously commits to continued posting of those documents, plaintiffs’ claims should be dismissed as moot, without discovery, even if USDA continues to regard its postings as voluntary.
So ordered.