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Animal Legal Defense Fund v. United States Department of Agriculture

United States District Court, N.D. California

May 31, 2017

ANIMAL LEGAL DEFENSE FUND, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.

          ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Re: Dkt. No. 17

          William H. Orrick United States District Judge

         INTRODUCTION

         For a 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 entities.

         Plaintiffs, 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).

         Plaintiffs 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.

         BACKGROUND

         The 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.

         Over 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 requester. Id.

         Between 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.

         Due to 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 reposting. Id.

         Since 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.

         APHIS 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.

         Plaintiffs 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.

         Plaintiffs 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.

         LEGAL STANDARD

         “A 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).

         A 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.

         DISCUSSION

         I. MANDATORY VS. ...


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