UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. et al.,

Plaintiffs, Case No. 17-cv-0269 (CRC) v.

U.S. DEPARTMENT OF AGRICULTURE et al.,

Defendants.

MEMORANDUM OPINION

A few weeks into the Trump Administration, the Department of Agriculture’s Animal

and Plant Health Inspection Service (“APHIS”) removed a slew of documents from its website

concerning its inspection and licensing of animal research facilities. Crying foul, a coalition of

animal rights’ groups filed suit under the “reading room” provision of the Freedom of

Information Act, which requires federal agencies to maintain copies of frequently requested

records for public inspection in electronic format. The Department of Agriculture has moved to

dismiss on various grounds. Finding that APHIS’s reposting of most of the documents has

mooted Plaintiffs’ claims as to those records, and that the complaint does not adequately allege

that the remaining removed records are subject to FOIA’s reading room provision, the Court will

grant the Department’s motion. Dismissal of the non-mooted claims will be without prejudice.

I. Background

A. FOIA’s Reading Room Provision

The Freedom of Information Act (“FOIA”) places on federal agencies “both reactive and

affirmative obligations to make information available to the public.” Citizens for Responsibility

& Ethics in Wash. v. U.S. Dep’t of Justice (“CREW”),

(D.C. Cir. 2017). Under the more familiar—and more frequently-litigated—reactive provision, federal agencies

must release records (with some exceptions) upon a valid and reasonably specific request by a

member of the public.

(a)(3)(A).

In addition to this reactive disclosure obligation, FOIA also imposes an affirmative duty

on agencies to “make available for public inspection in electronic format” five specific classes of

records.

§ 552(a)(2). They are: (1) “final opinions, . . . as well as orders, made in the

adjudications of cases”; (2) “those statements of policy and interpretations which have been

adopted by the agency and are not published in the Federal Register”; (3) “administrative staff

manuals and instructions to staff that affect a member of the public”; (4) “copies of all records,

regardless of form or format, (i) that have been released to any person” pursuant to the reactive

disclosure provision of FOIA and (ii) “that because of the nature of their subject matter, the

agency determines have become or are likely to become the subject of subsequent requests for

substantially the same records” or “that have been requested 3 or more times”; and (5) “a general

index of the records” posted. Id. § 552(a)(2)(A)–(E). This provision is known as FOIA’s

reading room provision. See, e.g., CREW,

.

B. Factual and Procedural History1

The Animal and Plant Inspection Service (“APHIS”) and the Department of Agriculture,

of which APHIS is a component, are responsible for administering the Animal Welfare Act.

Compl. ¶ 14. Congress passed the Animal Welfare Act in part to ensure that animals used in

medical research are treated humanely. Id. ¶ 12. Under the Act, facilities that conduct medical

1 The Court draws the relevant factual background from the Complaint, assuming the truth of all well-pled allegations therein as it must at this stage of litigation. Browning v. Clinton,

(D.C. Cir. 2002).

2 research on animals must obtain a license from the Department; in order to do so, the facility

must demonstrate that it is in compliance with the regulations issued by the Department

concerning the humane treatment of animals. Id. ¶ 15.

Historically, APHIS and the Department have posted a variety of records related to this

licensing process on APHIS’s public website. Id. ¶¶ 21–22, 30. Specifically, APHIS posted

reports from facility inspections, regulatory correspondence with licensed facilities, reports

submitted by licensed facilities, and enforcement records that had not yet received final

adjudication. Id. ¶ 30. These records were posted with some redactions of information exempt

from disclosure under FOIA, such as that implicating personal privacy. Id. ¶ 21. That changed

on February 3, 2017, when APHIS announced that it was removing the Animal Welfare Act

records from its website in order to “remove certain personal information” from the documents.

Id. ¶ 30 (citation omitted).

Shortly thereafter, People for the Ethical Treatment of Animals, Inc., Delcianna Winders,

Physicians Committee for Responsible Medicine, Born Free USA, Massachusetts Society for the

Prevention of Cruelty to Animals, and Beagle Freedom Project (collectively “PETA”) filed suit

against APHIS and the Department of Agriculture under FOIA. PETA alleged that the

Department’s wholesale removal of the records violated the reading room provision of FOIA.

The complaint focused on four specific categories of records: (1) research facility annual reports,

(2) inspection reports, (3) lists of entities licensed under the Animal Welfare Act, and (4)

regulatory correspondence and enforcement records. Id. ¶¶ 1, 30. With respect to these removed

records, PETA sought declaratory and injunctive relief requiring the Department to make

available to PETA all removed records and to continue making the records publically available

3 in the future without requiring PETA to submit an individual FOIA request. Id. ¶¶ 36–37.

PETA subsequently filed a motion seeking discovery.

The Department moved to dismiss. It maintained that PETA failed to state a claim upon

which relief could be granted because the complaint did not adequately allege that the relevant

records fell within the scope of FOIA’s reading room provision. Mem. Supp. Defs.’ Mot.

Dismiss (“Defs.’ MTD”), at 10. Additionally, the Department argued that dismissal was proper

because PETA had not filed an affirmative FOIA request for the relevant records and therefore

had failed to exhaust administrative remedies. Id. Finally, the Department contended that

PETA’s claim was not prudentially ripe for judicial review because the Department had not yet

finished its review of the removed records—which could result in the records being reposted.

Id.2

On September 11, 2017, after briefing on the motion to dismiss had finished, PETA filed

a notice with the Court indicating that the Department had completed its review of the relevant

records and, therefore, that the case was ripe. In response, the Court issued a Minute Order on

November 27, 2017 directing the Department to file a report clarifying the “current posting

status of the categories of records sought” by PETA. The Department filed the requested report

on December 4, 2017. In it, the Department explained that: (1) it had reposted all previously

posted research facility annual reports on the APHIS website, and intended to continue doing so

consistent with its practice prior to February 3, 2017; (2) it had reposted all inspection reports for

the most recent three-year period—consistent with its practice as of February 3, 2017— though it

2 As part of the motion to dismiss briefing, PETA filed an unopposed motion for leave to file a surreply. The Court will grant that motion and has considered the surreply in ruling on the motion to dismiss.

4 had not reposted the animal inventories that accompanied those reports and some reposted

reports contained more redactions than before; (3) it had reposted a monthly list of active

licensees on its website (though not a “real time” list); and (4) while it had not reposted the

regulatory correspondence and enforcement records, many of those records were official records

of the Department’s Office of Administrative Law Judges and Office of the Judicial Officer and

remained available to the public on those offices’ respective websites, and it did not intend to

repost records involving possible violations that are unadjudicated (though it maintains a

statistical summary of such records). Defs.’ Report Submitted Resp. Court’s Minute Order of

Nov. 27, 2017, at 2–4.

II. Standard of Review

In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Aschroft v. Iqbal,

(2009) (citation omitted). When

analyzing such a motion, the Court “may consider only the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint and matters of which [it] may take

judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997).

In addition, the Court must “accept the plaintiff’s factual allegations as true and construe the

complaint ‘liberally,’ ‘grant[ing] plaintiff[] the benefit of all inferences that can be derived from

the facts alleged.’” Browning v. Clinton,

(D.C. Cir. 2002) (alterations in

original) (citation omitted).

III. Analysis

In light of intervening events since the complaint was filed—namely, the Department’s

completion of its review of documents and reposting of most of the records that PETA has

5 requested—the Court will first address PETA’s claims as to the reposted documents before

moving to those documents that remain unavailable for public inspection. As to the documents

that have been reposted, because PETA has been accorded the full relief requested in the

complaint, the Court concludes PETA’s claims as to those documents are now moot and should

be dismissed. As for the remaining documents, the Court will dismiss PETA’s claims without

prejudice under Rule 12(b)(6) because the complaint does not adequately plead that the

documents are reading room documents.

A. PETA’s claims as to documents that have been reposted are moot.

Article III of the Constitution requires that a case remain live throughout the pendency of

the action. Campbell-Ewald Co. v. Gomez,

(2016). Therefore, “[i]f events

outrun the controversy such that the court can grant no meaningful relief, the case must be

dismissed as moot.” McBride v. Comm. to Review Circuit Council Conduct & Disability Orders

of the Judicial Conference of U.S.,

(D.C. Cir. 2001). The requirement for a live

case or controversy applies to each form of relief sought.

Here, PETA seeks two specific forms of relief: a declaratory judgment that the removal

of website records violated FOIA and injunctive relief ordering the removed records be made

available to PETA by electronic means. Compl. Claim for Relief. While no party has argued

that the reposting of documents has mooted either of PETA’s claims for relief, the Court is

“obliged to address the issue sua sponte because mootness goes to [its] jurisdiction.” Mine

Reclamation Corp. v. FERC,

, 1522 (D.C. Cir. 1994).

The Court will start with PETA’s request for injunctive relief. Based on the reports filed

by the parties, it appears that for three of the four categories of records that PETA seeks, the

Department has reposted the relevant records: the Department has reposted all previously-posted

6 inspection facility annual reports (with the exception of the animal inventories that accompany

the reports), inspection reports, and the list of entities regulated under the Animal Welfare Act.

See Defs.’ Report Submitted Resp. Court’s Minute Order of Nov. 27, 2017, at 2–4. Thus, the

reposted records have been “ma[d]e . . . available to Plaintiffs by electronic means,” Compl.

Claim for Relief—the precise relief that PETA requested in its complaint.3 In light of this fact,

there is no further meaningful relief that the Court can grant as to PETA’s request for injunctive

relief. As such, that request is moot as to any reposted record.

This leaves PETA’s declaratory relief request. The D.C. Circuit has recognized that

when a plaintiff “merely attacks an isolated agency action, then the mooting of the specific claim

moots any claim for a declaratory judgment that the specific action was unlawful.” City of Hous.

v. Dep’t of Hous. & Urban Dev.,

(D.C. Cir. 1994). PETA’s complaint does

not challenge any ongoing agency policy (at least with respect to any reposted records)—it has

always challenged a discrete agency action, namely the removal of website records on February

3, 2017. See Compl. ¶ 36;

Claim for Relief (seeking a declaration that “Defendants have

violated FOIA by removing [the records] from APHIS’s website”). Consequently, the mooting

of PETA’s injunctive relief request simultaneously moots its declaratory relief request.

That said, PETA’s claims would not be moot if they met one of the two recognized

exceptions for mootness: (1) capable of repetition yet evading review or (2) voluntary cessation.

City of Hous.,

. Of these two exceptions only the latter, voluntary cessation,

3 While PETA may raise challenges to the redactions that now accompany these records, see, e.g, Pls.’ Resp. Defs.’ Report, at 5, PETA’s complaint challenged the wholesale removal of the records and not any redactions. Indeed, PETA’s complaint recognizes that the Department may redact information pursuant to FOIA’s exemptions. See Compl. ¶ 34. As such, PETA’s concerns about redactions are not part of the complaint as filed.

7 would arguably apply here. A defendant’s voluntary cessation of challenged conduct will moot

the case if “there is no reasonable expectation that the conduct will recur” and “interim relief or

events have completely and irrevocably eradicated the effects of the alleged violation.” Qassim

v. Bush,

(D.C. Cir. 2006) (citation omitted).

These requirements are met here. PETA’s access to the records erases the effects of the

alleged violation. Additionally, there is no reasonable expectation the Department will remove

the records again: from the beginning, the Department has indicated—and both parties have

recognized—that the removal was a temporary measure intended to review the records and

remove certain personal information. See Compl. ¶ 30 (“[The Department] asserted that the

reason for its decision was its desire to ‘remove certain personal information from documents it

posts on APHIS’ website.” (citation omitted). And the Department has indicated its intent to

continue posting records going forward. See Defs.’ Report Submitted Resp. Court’s Minute

Order of Nov. 27, 2017, at 2 (“APHIS intends to continue posting annual reports going forward

consistent with its practice prior to February 3, 2017.”); id. at 3 (“Since August 18, 2017, APHIS

has posted approximately 1,859 newly generated inspection reports . . .”). Given the temporary,

one-time nature of the Department’s removal of the records, it is reasonably certain that the

Department will not remove these records again. The voluntary cessation exception thus does

not apply.

In sum, because PETA has been accorded the full relief it sought with respect to the

reposted records, the Court concludes that PETA’s claims with respect to these records are now

moot.

8 B. PETA has insufficiently pled that the remaining removed documents are reading room documents.

As discussed above, three of the four categories of documents that PETA requested—

annual facility reports, inspection reports (absent inventories), and the list of regulated entities—

have been reposted and PETA’s claims as to those documents are now moot. This leaves the

Court to address only those documents that have not been reposted: the animal inventories

(which the Department avers it is in the process of auditing and intends to repost) and regulatory

compliance documents related to unadjudicated claims of violations of the Animal Welfare Act.

See Compl ¶¶ 1, 30. As to these remaining documents, the Court agrees with the Department

that PETA has not adequately pled that they fall within the scope of FOIA’s reading-room

provision.

Under the statute, the FOIA reading-room provision encompasses five categories of

documents: (1) final opinions and orders rendered in the adjudication of cases, (2) statements of

policy and interpretations which are not published in the Federal Register, (3) administrative

staff manuals and instructions, (4) frequently requested documents, and (5) indices of posted

records.

(a)(2)(A)–(E). If a document does not fall within one of these

categories, then the agency has no affirmative obligation to post the document—it would only

have a reactive obligation to release the document pursuant to a valid FOIA request, see

§

552(a)(3)(A). Consequently, a plaintiff raising a violation of FOIA’s reading room provision

must plausibly allege that the withheld records fall within one of these categories in order to

properly state a claim. See Campaign for Accountability v. U.S. Dep’t of Justice,

, at ** 7, 12 (D.D.C. Oct. 6, 2017).

PETA argues that the records at issue here fall in the first or fourth category. As to the

first category, PETA’s complaint does not contain plausible allegations that the records at issue

9 represent final opinions made in the adjudication of cases. Indeed, the challenged regulatory

compliance records specifically involved cases “that have not reached final adjudication.”

Compl. ¶ 30 (citation omitted). Such records, therefore, are not plausibly final opinions. Nor

could “warnings, settlements, and stipulations” plausibly be final opinions, particularly since

records must have “precedential value” or “constitute working law of the agency” to qualify as

final opinions, see, e.g., Tereshchuk v. Bureau of Prisons,

(D.D.C.

2014). Similarly, inventories of animals submitted with annual reports do not plausibly sound

like final opinions, and no facts alleged in the complaint suggest such an interpretation. As such,

PETA fails to adequately allege that these remaining records fall within the first category of

records covered by the reading-room provision.

This leaves the fourth category, frequently requested records. According to FOIA, such

records are those that (1) “have been released to any person” pursuant to a valid FOIA request

and (2) that the agency has “determine[d] have become or are likely to become the subject of

subsequent requests for substantially the same records” or that “have been requested 3 or more

times.”

(a)(2)(D). As an initial matter, PETA nowhere alleges in its complaint

that the animal inventories and regulatory compliance records have ever been released to any

person pursuant to a valid FOIA request.4 Thus, the records fail to meet the first requirement to

4 PETA notes in affidavits attached to its opposition that some of the Plaintiffs have requested (though not necessarily yet received) these documents. But when ruling on a motion to dismiss under Rule 12(b)(6), the Court is confined to the allegations in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice. St. Francis Xavier,

. The Court cannot rely on the declarations attached to PETA’s opposition in ruling on the motion to dismiss. Nor has PETA ever moved to amend its complaint to include any factual allegations set out in the declarations. For similar reasons, the Court will deny PETA’s outstanding motion for leave to file a supplemental declaration— that declaration, too, would be inappropriate for the Court to rely on at this juncture to supplement allegations in the complaint.

10 be frequently request records. Similarly, PETA nowhere alleges that the records have been

requested more than three times or that the Department has determined the records have been or

are likely to be the subject of multiple requests.

In opposition to the Department’s motion to dismiss, PETA primarily argues that because

the records were previously posted on APHIS’s website, they must be records within the scope of

the reading room provision. Pls.’ Opp’n Defs.’ Mot. Dismiss at 16. But that is not necessarily

so. An agency could clearly decide to post a wider swath of records than obligated to under

FOIA: for instance, an agency could preemptively post a record that has never been requested

(and thus is not a frequently requested record under the statute) but that it anticipates will be

requested repeatedly. The Court therefore does not agree that merely because a record has been

posted on an agency’s website, the agency was required to post that record under FOIA.5

In sum, PETA does not allege in its complaint that it has requested these documents

pursuant to a valid FOIA request. And the record’s prior-posted status is insufficient by itself to

show it is a frequently-requested record. PETA has therefore failed to adequately allege that

these records are reading room records and, accordingly, that the Department has improperly

withheld records under FOIA.6

5 This is equally true for future records, which by virtue of their currently non-existent status have never been released to any person under a valid FOIA request and therefore cannot yet be reading-room documents. 6 Because the Court is dismissing for mootness and failure to state a claim upon which relief can be granted, it need not address the Department’s arguments that dismissal is also proper because PETA failed to exhaust its administrative remedies or on prudential ripeness grounds.

11 IV. Conclusion

In light of the Department’s reposting of the vast majority of the records at issue in this

case, there is not much left for the Court to resolve. The Department’s reposting of the records

provides PETA with the injunctive relief it seeks, and therefore moots PETA’s claim as to those

records. With respect to the records that have not been reposted, PETA has not adequately

alleged that they fall within the scope of FOIA’s reading-room provision. The Court will

therefore dismiss the case for mootness and for failure to state a claim on which relief can be

granted. For the non-mooted claims, this dismissal is without prejudice. A separate Order shall

accompany this Memorandum Opinion.7

CHRISTOPHER R. COOPER United States District Judge

Date: January 18, 2018

7 PETA has also filed a motion for discovery. Because the Court is granting the Department’s motion to dismiss, it will deny PETA’s pending motion as moot.

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