United States District Court, N.D. California
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Re:
Dkt. No. 17
William H. Orrick United States District Judge
number of years, the USDA has regularly posted documents
concerning the enforcement activities of the Animal and Plant
Health Inspection Service (“APHIS”) to two online
databases, the Animal Care Information Search
(“ACIS”) database and the Enforcement Actions
(“EA”) database. On February 3, 2017, citing
potential privacy concerns, the USDA blocked public access to
both the ACIS and EA databases so that it could conduct a
review of the documents posted online to ensure that they do
not contain information that should be redacted or shielded
from public disclosure. The USDA's review of the
previously-posted APHIS documents is ongoing. It has reposted
tens of thousands of documents that it has determined are
appropriate for public disclosure to the APHIS website,
including the most up-to-date inspection reports for larger
non-profit organizations involved in promoting animal
welfare, assert that by blocking access to the APHIS
databases, the USDA breached its obligations under the
Freedom of Information Act (“FOIA”)'s
reading-room provision, which requires agencies to make
frequently requested documents available for public
inspection. Alternatively, they assert that the USDA's
decision to block access to the ACIS and EA databases was
arbitrary and capricious in violation of the Administrative
Procedures Act (“APA”). They seek a mandatory
preliminary injunction compelling the United States
Department of Agriculture (“USDA”) to restore
public access to all the documents available through two
databases on the website. Mot. at 3 (Dkt. No. 17).
must demonstrate that the law and facts clearly favor the
relief they have requested in order to obtain a mandatory
injunction. They have not done so. They are not likely to
succeed on their FOIA claim because there is no public remedy
for violations of the reading room provision - courts may
order production of documents to specific plaintiffs but
cannot mandate publication to the public as a whole. They
have not exhausted administrative remedies on their reading
room claims either. They are also not likely to succeed on
their claim under the APA because FOIA provides plaintiffs an
adequate alternative remedy. And they cannot establish that
they are likely to suffer irreparable harm absent an
injunction or that the balance of harms weighs in their favor
in light of the on-going review and privacy interests
asserted by the USDA. Plaintiffs' motion for a
preliminary injunction is DENIED.
Animal Welfare Act (“AWA”) sets minimum standards
for the humane treatment of animals by various commercial
enterprises, including animal research facilities, animal
breeders, and animal exhibitors. 7 U.S.C. § 2132; 9
C.F.R. § 11.1. The USDA, through APHIS, enforces the
AWA. 7 U.S.C. §§ 2131 et seq.; 9 C.F.R.
§§ 1.1 et seq. APHIS has inspectors
nationwide who conduct inspections to ensure that regulated
facilities are in compliance with the AWA. Shea Decl.
¶¶ 8-10 (Dkt. No. 22-1). They document violations
in inspection reports, which may lead to issuing letters of
warning or other enforcement actions. Id.
¶¶ 10-13. APHIS may also bring administrative
enforcement actions by filing administrative complaints to be
heard before the Office of the Administrative Law Judge
(“OALJ”), and can refer serious violations to the
Department of Justice if criminal charges are appropriate.
Id. ¶¶ 12.
the years, APHIS has made many of the documents related to
its enforcement actions publicly available through the APHIS
website. Id. ¶ 4. APHIS started posting
inspection reports and annual reports to its website in the
late 1990s or early 2000s but ceased the practice as a result
of security concerns following the September 11, 2001
terrorist attacks. Id. ¶ 14. From 2005 - 2009,
it was engaged in FOIA litigation regarding annual reports
for animal research facilities. See Humane Society of the
United States (“HSUS”) v. USDA, 05:cv-00197
(D.D.C. 2005). As part of a settlement of the case, the
agency agreed to post certain annual reports to the APHIS
website on the ACIS database. Id. ¶ 15. It also
resumed posting inspection reports to the database around the
same time. Id. In 2010, APHIS began posting (1)
official warning letters; (2) voluntary settlement agreements
between APHIS and regulated entities; (3) administrative
complaints filed against regulated entities to initiate
proceedings; (4) consent decisions before the OALJ; and (5)
final decisions of the OALJ to the EA database. Id.
¶ 16. All records posted to the ACIS and EA databases
were posted proactively, before the USDA received specific
FOIA requests for documents. Id. ¶ 17. If
posted information was later responsive to a FOIA request,
APHIS would generally refer requesters to the APHIS website
instead of processing and releasing documents directly to the
2012 and 2016, APHIS grew concerned that its Privacy Act
system for reviewing and redacting AWA records was
insufficient. Id. ¶ 20. In particular, largely
due to lawsuits brought against it and other government
agencies under the Privacy Act, it worried that some of the
information it was publicly posting, such as the names and
addresses of closely held businesses, might need to be
redacted. Id. ¶ 22. An Eighth Circuit decision
that held in favor of Privacy Act litigants in September,
2016, crystallized these concerns. See Am. Farm Bureau
Fed'n v. EPA, 836 F.3d 963 (8th Cir. 2016). In
November, 2016, APHIS decided to remove compliance and
enforcement records from the APHIS website's public
search tool so that these documents could be reviewed and
potentially either be further redacted before being reposted
or withheld. Id. ¶ 23.
programming limitations, the only way to restrict public view
of the documents on the APHIS website was to completely
remove the public search tool database. Id. On
February 3, 2017, APHIS took the ACIS public search tool
database offline and removed various compliance and
enforcement documents from the site. Id. ¶ 25.
APHIS posted a public statement, which it updated on February
7, 2017, explaining that the removal of these documents was a
temporary measure and that the USDA had not made final
decisions as to what documents would be suitable for
February 3, 2017, APHIS's Animal Care employees have
spent close to 4, 000 employee hours reviewing and reposting
records. Id. ¶ 26. Approximately 75 percent of
all Animal Care employees, many of whom are not usually
involved in processing FOIA requests, have participated in
this effort. Id. APHIS has now scaled back the
review process but a more limited group of employees will
continue to dedicate significant time to reviewing these
records until the review process is complete. Id.
has issued a number of statements to update the public on the
status of the review process and to alert them as to when
documents are re-posted to the website. Id. ¶
27. So far APHIS has reposted approximately 10, 000
inspection reports, including reports for universities,
research institutions, and large businesses. Id.
¶ 28. It also continues to post inspection reports from
recent inspections for these entities. Id. It is
continuing to review approximately 20, 000 inspection reports
for smaller facilities that are more likely to implicate the
privacy concerns of individuals and closely-held businesses,
but has not made final decisions whether these documents will
be made available through ACIS. Id. APHIS has also
re-posted all annual reports for research facilities that
were previously posted, approximately 11, 500 records.
Id. It has re-posted lists of licensees and
registrants, which it temporarily removed to redact
individuals' addresses. Id. ¶ 29. It
continues to review, but has not reposted, any of the 2, 700
records involving pre-adjudicatory enforcement action,
including warning letters, pre-litigation settlement
agreements, and administrative complaints. Id.
¶ 30. It has not re-posted copies of OALJ consent
decisions and final orders, but these documents remain
available on the OALJ website and APHIS has included a link
to that site. Id. ¶ 31.
note that, despite this progress, many documents that were
previously available through the APHIS website have still not
been reposted. They assert that absent access to the entire
APHIS databases, their mission will be frustrated as much of
their advocacy work involves using the APHIS databases. Mot.
at 13-17. They also argue that they face a potential loss of
member and donor goodwill if they cannot provide up-to-date
information to their members. Mot. at 13-18.
bring claims against the USDA under FOIA and under the APA.
They assert that the USDA has failed to make records
affirmatively available as required under FOIA's
readingroom provision, which requires agencies to make
available final opinions and frequently requested documents.
See 5 U.S.C. § 552(a)(2). They also contend
that the agency's decision to remove documents from the
APHIS website violated the APA. They have moved to
preliminarily enjoin the USDA and compel it to make all
previously-available records accessible to the public through
the APHIS website pending resolution of these claims.
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Winter v. Nat'l Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). This has been interpreted as a four-part
conjunctive test, not a four-factor balancing test. However,
the Ninth Circuit has held that a plaintiff may also obtain
an injunction if he has demonstrated “serious questions
going to the merits” that the balance of hardships
“tips sharply” in his favor, that he is likely to
suffer irreparable harm, and that an injunction is in the
public interest. See Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).
preliminary injunction may be either prohibitory or
mandatory. “A prohibitory injunction prohibits a party
from taking action and preserves the status quo pending a
determination of the action on the merits.” Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 878 (9th Cir. 2009) (internal quotations and
alterations omitted). The “status quo” means
“the last, uncontested status which preceded the
pending controversy.' ” Regents of the Univ. of
Cal. v. Am. Broad. Cos., 747 F.2d 511, 514 (9th Cir.
1984). In contrast, a mandatory injunction “orders a
responsible party to ‘take action' ”
Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996).
Mandatory injunctions are disfavored and “are not
granted unless extreme or very serious damage will
result.” Anderson v. United States, 612 F.2d
1112, 1115 (9th Cir. 1980). They “are not issued in
doubtful cases or where the injury complained of is capable
of compensation in damages.” Id.
MANDATORY VS. ...