Animal Legal Defense Fund et al v. United States Department of Agriculture et al

MOTION to Dismiss for Lack of Jurisdiction ; [Proposed] Order

N.D. Cal.May 8, 2017

Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney MARCIA BERMAN Assistant Director, Federal Programs Branch PETER M. BRYCE (Illinois Bar No. 6244216) Senior Counsel ANJALI MOTGI (Tex. Bar No. 24092864) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Room 7138 Washington, D.C. 20044 Telephone: (202) 616-8335 Facsimile: (202) 616-8470 Peter.Bryce@usdoj.gov Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ANIMAL LEGAL DEFENSE FUND, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. No. 3:17-cv-00949-WHO DEFENDANTS’ MOTION TO DISMISS COMPLAINT; [PROPOSED] ORDER Date: June 28, 2017 Time: 2:00 p.m. Judge: William H. Orrick Courtroom 2, 17th Floor, 450 Golden Gate Ave., San Francisco, CA Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 1 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS NOTICE OF MOTION ................................................................................................................... 1 STATEMENT OF ISSUES ............................................................................................................ 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 I. STATUTORY AND REGULATORY BACKGROUND ............................................ 3 II. FACTUAL AND PROCEDURAL BACKGROUND .................................................. 4 LEGAL STANDARD ..................................................................................................................... 7 ARGUMENT .................................................................................................................................. 8 I. PLAINTIFFS’ FOIA CLAIM SHOULD BE DISMISSED ......................................... 8 A. Plaintiffs Cannot Invoke the Court’s Jurisdiction Under FOIA Because They Have Not Alleged or Shown that the Removed Records Have Been “Improperly Withheld” ........................................................................................ 8 1. Plaintiffs Have Not Alleged that § 552(a)(2)(D) Requires Publication of All Previously Posted Categories of Records ......................................... 9 2. Plaintiffs Have Not Alleged that § 552(a)(2)(A) Requires Publication ................................................................................. 12 B. Plaintiffs Have Not Shown That They Properly Exhausted Their Administrative Remedies Under FOIA .............................................................. 14 C. Plaintiffs’ FOIA Claim Is Not Ripe ................................................................... 16 D. The Court Lacks Jurisdiction to Grant the Relief Sought Because FOIA Does Not Authorize Courts to Order Publication of Records .......................................................................................................... 19 II. PLAINTIFFS’ APA CLAIMS SHOULD BE DISMISSED ....................................... 20 A. Judicial Review Is Unavailable Under the APA Because FOIA Provides an Adequate Remedy For Plaintiffs’ Alleged Injuries .............. 20 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 2 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiffs Do Not Challenge Any Final Agency Action Subject to Judicial Review Under the APA .................................................................... 22 C. Plaintiffs’ APA Claims Fail for Numerous Other Reasons ............................... 24 CONCLUSION ............................................................................................................................. 24 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 3 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Page(s) Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ................................................................................................................... 17 Am. Immigration Lawyers Ass’n v. EOIR, 830 F.3d 667 (D.C. Cir. 2016) ......................................................................................... 3, 12, 13 Am. Petrol. Inst. v. EPA, 683 F.3d 382 (D.C. Cir. 2012) ................................................................................................... 18 Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770 (9th Cir. 2000) ..................................................................................................... 16 Benhoff v. DOJ, No. 16-cv-1095, 2016 WL 6962859 (S.D. Cal. Nov. 29, 2016) ................................................ 15 Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................................................... 22 Bowen v. Massachusetts, 487 U.S. 879 (1988) ............................................................................................................. 20, 22 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) ................................................................................................... 20 Colwell v. HHS, 558 F.3d 1112 (9th Cir. 2009) ................................................................................................... 19 Coons v. Lew, 762 F.3d 891 (9th Cir. 2014) ..................................................................................................... 17 CREW v. DOJ, 164 F. Supp. 3d 145 (D.D.C. 2016), aff’d, 846 F.3d 1235 (D.C. Cir. 2017) ............................. 15 CREW v. DOJ, 846 F.3d 1235 (D.C. Cir. 2017) ............................................................................... 15, 20, 21, 22 El Rio Santa Cruz Neighborhood Health Ctr. v. HHS, 396 F.3d 1265 (D.C. Cir. 2005) ................................................................................................. 21 Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586 (9th Cir. 2008) ............................................................................................... 22, 23 FTC v. Anderson, 631 F.2d 741 (D.C. Cir. 1979) ................................................................................................... 18 FTC v. Owens-Corning Fiberglass Corp., 626 F.2d 966 (D.C. Cir. 1980) ................................................................................................... 18 Garcia v. McCarthy, No. 13-cv-03939, 2014 WL 187386 (N.D. Cal. Jan. 16, 2014)........................................... 21, 22 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 4 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009) ............................................................................................. 21, 22 Gulf Oil Corp. v. Brock, 778 F.2d 834 (D.C. Cir. 1985) ....................................................................................... 17, 18, 19 Hayes Oyster Company v. Oregon Department of Environmental Quality, 2017 WL 1381659 (D.Or. 2017) ............................................................................................... 16 In re Digimarc Corp. Derivative Litig., 549 F.3d 1223 (9th Cir. 2008) ..................................................................................................... 8 In re Steele, 799 F.2d 461 (9th Cir. 1986) ........................................................................................... 4, 14, 16 In re: Marilyn Shepherd, AWA Dkt. No. 96-0084, 1998 WL 385884 (57 Agric. Dec. June 26, 1998) ............................ 13 Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972) .............................................................................................. 14,15 Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191 (D.C. Cir. 1996) ......................................................................................... 4, 19, 20 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ..................................................................................................... 4, 8, 20, 21 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ..................................................................................................................... 7 Long v. Bureau of Alcohol, Tobacco and Firearms, 964 F. Supp. 494 (D.D.C. 1997) ................................................................................................ 17 Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) ................................................................................................................... 19 Maraldo v. Life Ins. Co. of the Southwest, 2012 WL 1094462 (N.D. Cal. 2012) ......................................................................................... 16 Morales v. Secretary, U.S. Dep’t of State, No. 16-cv-1333, 2016 WL 6304654 (D.D.C. Oct. 27, 2016) .................................................... 16 Nat. Res. Def. Council v. Abraham, 388 F.3d 701 (9th Cir. 2004) ..................................................................................................... 19 Navajo Nation v. U.S. Dep’t of Interior, 819 F.3d 1084 (9th Cir. 2016) ................................................................................................... 23 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ......................................................................................................... 4, 12, 13 Principal Life Ins. Co. v. Robinson, 394 F.3d 665 (9th Cir. 2005) ..................................................................................................... 17 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 5 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prisology, Inc. v. Federal Bureau of Prisons, 852 F.3d 1114 (D.C. Cir. 2017) ................................................................................................. 15 Reg’l Mgmt. Corp., Inc. v. Legal Servs. Corp., 186 F.3d 457 (4th Cir. 1999) ..................................................................................................... 19 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) ..................................................................................................... 7 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) ..................................................................................................... 24 Senate of State of Cal. v. Mosbacher, 968 F.2d 974 (9th Cir. 1992) ..................................................................................................... 24 Skelton v. U.S. Postal Serv., 678 F.2d 35 (5th Cir. 1982) ................................................................................................. 12, 13 Spurlock v. FBI, 69 F.3d 1010 (9th Cir. 1995) ................................................................................................... 4, 8 Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) ..................................................................................................... 17 Webb v. HHS, 696 F.2d 101 (D.C. Cir. 1982) ................................................................................................... 18 WildEarth Guardians v. Montana Snowmobile Ass'n, 790 F.3d 920 (9th Cir. 2015) ............................................................................................... 17, 19 Wilderness Soc’y., Inc. v. Rey, 622 F.3d 1251 (9th Cir. 2010) ................................................................................................... 24 Zixiang Li v. Kerry, 710 F.3d 995 (9th Cir. 2013) ..................................................................................................... 23 STATUTES 5 U.S.C. § 552(a) .................................................................................................................... passim 5 U.S.C. § 704 ................................................................................................................ 2, 20, 21, 22 5 U.S.C. § 706(1) ........................................................................................................................... 23 7 U.S.C. § 2131(1) ........................................................................................................................... 4 ADMINISTRATIVE AND EXECUTIVE MATERIALS Multitrack Processing, 7 C.F.R. § 1.8(d) (2017) ............................................................................ 16 Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009) .................................... 10 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 6 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEGISLATIVE MATERIALS H. R. Rep. No. 104-795 (1996), as reprinted in 1996 U.S.C.C.A.N. 3448 ................................... 12 S. Rep. No. 104-272, at 13 (1996) ............................................................................................ 11-12 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 7 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION Defendants, the United States Department of Agriculture (“USDA”); and the Animal and Plant Health Inspection Service (“APHIS,” or collectively with USDA, the “agency” or “defendant”), respectfully move this Court to dismiss Plaintiffs’ Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (the “Motion”). Pursuant to stipulation of the parties filed April 28, 2017, see ECF No. 23, defendants respectfully request that this Motion be heard on Wednesday, June 28, 2017, at 2:00 p.m., or as soon as feasible thereafter. Defendant requests that this Court dismiss Plaintiffs’ Complaint it its entirety because this Court lacks jurisdiction over Plaintiffs’ claims. STATEMENT OF ISSUES 1. Whether the Court should dismiss plaintiffs’ claim under the Freedom of Information Act (“FOIA”). 2. Whether the Court should dismiss plaintiffs’ claims under the Administrative Procedure Act (“APA”). MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION In early February, the agency temporarily removed from its website certain categories of records pertaining to its administration of the Animal Welfare Act (“AWA”). Citing the need to properly address privacy concerns, the agency emphasized the decision was not final but was a precautionary measure to protect individual privacy during an ongoing review process. Pursuant to that ongoing review, the agency has already reposted many thousands of records to the website, and continues to review records to determine whether reposting is appropriate, taking into account privacy concerns. Unwilling to allow that process to play out, plaintiffs filed this lawsuit, asking the Court to order the agency to immediately publish all “categories” of records previously published on the agency website. They assert that the agency’s removal and/or failure to immediately repost all records previously published on the website violates FOIA and the APA. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 8 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ claims are improper and should be dismissed. Jurisdiction under FOIA depends on some showing that records have been “improperly withheld” from plaintiffs under § 552(a)(4)(B), a showing that is generally based on the agency’s response to a properly submitted FOIA request. Plaintiffs do not tie their claims to a particular FOIA request, however, and their dissatisfaction with the current state of the agency’s website cannot establish an “improper withholding” that could support this Court’s jurisdiction. First, contrary to their assertions, FOIA’s “reading room” provision does not create a categorical legal obligation to post all disputed records on the website. In any event, plaintiffs do not claim to have exhausted their remedies under FOIA, and their failure to tie the relief sought here to a particular FOIA request precludes any showing that the agency has “improperly withheld” the disputed records. Plaintiffs’ FOIA claim would also fail for lack of ripeness. Judicial review on this Complaint would be unmanageable and would only serve to disrupt the agency’s ongoing review and efforts to ensure that records are reposted to the agency website. Finally, FOIA does not authorize courts to order publication, the relief sought by plaintiffs here. Plaintiffs’ APA claims are similarly improper and reflect plaintiffs’ efforts to bypass the procedures and limitations Congress set forth in FOIA. The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704 (emphases added). In this case, Congress already provided plaintiffs with an “adequate remedy” under FOIA for their purported informational injuries, allowing plaintiffs to submit a request for the records they seek, and to obtain de novo review in district court if they are dissatisfied with the agency’s response. Judicial review is also unavailable because plaintiffs’ have not identified any “final agency action” subject to challenge under the APA. To the contrary, the agency review process is currently ongoing, and has already resulted in many thousands of records being reposted to the agency website. For these and other reasons, plaintiffs’ APA claims should be dismissed. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 9 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BACKGROUND I. STATUTORY AND REGULATORY BACKGROUND FOIA creates three different types of disclosure obligations under 5 U.S.C. §§ 552(a)(1), (a)(2), and (a)(3). The most familiar (and the most frequently-litigated) provision, § 552(a)(3), provides that agencies must “make . . . records promptly available” in response to specific requests. 5 U.S.C. § 552(a)(3)(A). In addition to the obligation to respond to specific requests under § 552(a)(3), FOIA contains two provisions requiring government agencies to affirmatively make certain types of records available to the public. See id. §§ 552(a)(1), (2). The affirmative disclosure provision at issue in this case – sometimes called the “reading room” provision – requires agencies to make certain records “available for public inspection in an electronic format.” Id. § 552(a)(2). The first three sub-paragraphs of the provision, §§ 552(a)(2)(A), (B), and (C), require agencies to make publicly available certain categories of records that reflect the “making of law or policy by an agency.” Am. Immigration Lawyers Ass’n v. EOIR, 830 F.3d 667, 679 (D.C. Cir. 2016) (“AILA”). As relevant here, § 552(a)(2)(A) requires the agency to make available “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.” 5 U.S.C. § 552(a)(2). The fourth sub-paragraph, § 552(a)(2)(D), also relevant here, was added by Congress in 1996, and applies only to certain records that have been “released” in response to a FOIA request under § 552(a)(3). It provides that agencies shall make available: (D) copies of all records, regardless of form or format— (i) that have been released to any person under paragraph (3); and (ii) (I) 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 (II) that have been requested 3 or more times Id. § 552(a)(2)(D). Under this provision, records “that have been released” in response to a FOIA request under 5 U.S.C. § 552(a)(3) should be made available if those records have been requested a total of three times, or are likely to be the subject of future requests. See id. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 10 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even where a disclosure obligation exists, however, not all records must be disclosed or disclosed entirely under FOIA. The Act contains nine specific exemptions, which allow the agency to withhold from disclosure the information falling within such exemptions. See id. § 552(b). In light of the language of § 552(b)—“[t]his section does not apply to matters that [fall within an exemption]”—agencies may withhold such exempt information regardless of whether the record falls within the affirmative-disclosure provisions of § 552(a)(2), or was requested by an individual under § 552(a)(3). See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 160 (1975) (holding that the attorney work-product privilege applied, and thus the document was exempt regardless of whether it fell within a § 552(a)(2) category). Finally, FOIA provides for judicial review, granting courts jurisdiction to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Under this provision, “federal jurisdiction is dependent upon a showing that an agency has (1) improperly; (2) withheld; (3) agency records.” See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (citing 5 U.S.C. § 552(a)(4)(B)). See also Spurlock v. FBI, 69 F.3d 1010, 1015 (9th Cir. 1995). This provision applies to requests for records under all three of FOIA’s access provisions, §§ 552(a)(1), (a)(2), and (a)(3). See Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996). Plaintiffs seeking to enforce disclosure obligations under FOIA must first submit a request for the records sought and exhaust their remedies with respect to that request. See In re Steele, 799 F.2d 461, 466 (9th Cir. 1986). II. FACTUAL AND PROCEDURAL BACKGROUND The agency, through APHIS, administers and enforces the AWA, which Congress enacted to, inter alia, “insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment.” 7 U.S.C. § 2131(1). Animals covered by the AWA may include those in zoos, circuses, marine mammal facilities; those destined for commercial pet trade; those transported on commercial airlines or other common carriers; and those used for research. See Compl. ¶ 29, ECF No. 1; Declaration of Kevin Shea ¶ 6 Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 11 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Shea Decl.”), ECF No. 22-1. Research facilities regulated under AWA submit annual reports to APHIS affirming compliance with AWA and containing information about animals used for research. Compl. ¶ 34; Shea Decl. ¶ 4.b. APHIS employs inspectors who conduct inspections of all regulated entities – such as animal dealers and exhibitors, research facilities, and intermediate handlers – to ensure compliance with AWA standards and regulations. Compl. ¶¶ 31-33; Shea Decl. ¶¶ 4.a, 9-10. Deficiencies discovered in inspections may form the basis for letters of warning and other regulatory correspondence, as well as enforcement actions, such as voluntary settlement agreements that may involve monetary penalties or other sanctions. Compl. ¶¶ 33-35; Shea Decl. ¶¶ 4.d, 4.e, 10-13. APHIS may also initiate adjudicatory enforcement actions through administrative complaints initiated by its Office of the General Counsel. Compl. ¶ 35; Shea Decl. ¶¶ 4.f, 12. These adjudicatory proceedings are resolved by USDA administrative law judges (“ALJs”) and the USDA Judicial Officer, who issue final decisions on behalf of the Secretary of Agriculture for purposes of judicial review. Compl. ¶¶ 35-36; Shea Decl. ¶¶ 4.g, 12, 16. For years, APHIS made certain categories of AWA compliance and enforcement records available on the APHIS website. Compl. ¶¶ 33-36; Shea Decl. ¶ 4. These categories of records were posted proactively, without waiting for a specific FOIA request. Compl. ¶¶ 33-36; Shea Decl. ¶ 17. If posted information turned out to be responsive to a FOIA request, APHIS generally referred requesters to the website, rather than processing and releasing records already available on the agency website. Shea Decl. ¶ 17; Pls.’ Mot. for Prelim. Inj. (“Pl. PI Mot.”), at 7, ECF No. 17. The agency previously maintained a public search tool, through which anyone could search for information involving the agency’s AWA compliance activities – including inspection reports and research facility annual reports – through its Animal Care Information System (“ACIS”). Shea Decl. ¶ 18; see also Compl. ¶¶ 33-34 (stating that inspection reports and research facility annual reports were available in the ACIS database). APHIS also maintained publicly accessible copies of regulatory correspondence, enforcement records, and adjudicatory records on its website, separate from the search tool. Shea Decl. ¶ 19; Compl. ¶¶ 35-36 (describing these website postings as being contained in a “database entitled Enforcement Actions (‘EA’)”). Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 12 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Between 2012 and 2016, APHIS began reviewing a Privacy Act System covering AWA records, concerned that records it made publicly available online may contain information implicating substantial privacy concerns. Shea Decl. ¶¶ 20-21. The agency decided in November 2016 to temporarily remove certain categories of records from its website to allow a document-by-document review for any personal information that may raise privacy concerns. Id. ¶ 23. Accordingly, on February 3, 2017, the agency temporarily removed the ACIS search tool from its website, as well as other categories of information it had previously made available online, including “inspection reports, regulatory correspondence, research facility annual reports, and enforcement records that have not received final adjudication.” USDA, Stakeholder Announcement: Updates to APHIS’ Website Involving Animal Welfare Act and Horse Protection Act Compliance Information, Published Feb. 3, Revised Feb. 7 (“Revised Stakeholder Announcement”) http://go.usa.gov/xXhEc (last visited May 4, 2017). See also Compl. ¶¶ 38-39; Shea Decl. ¶¶ 24-25. The agency’s announcement also invited those seeking such records to submit FOIA requests. See Revised Stakeholder Announcement. Further, consistent with § 552(a)(2)(D), the agency added that if records released in response are “frequently requested via the FOIA process, in most instances APHIS may post the appropriately redacted versions to its website.” Id. The agency emphasized, shortly thereafter, that the access decisions were not final and that adjustments may be made regarding information appropriate for reposting. Id. Shea Decl. ¶ 25; Compl. ¶ 38. In keeping with those statements, APHIS shortly thereafter began reviewing and reposting records to the agency website. Shea Decl. ¶ 26; Compl. ¶ 40 (acknowledging that the first batch of records were re-posted on February 17, when the agency posted research facility annual reports from 2013, 2014, and 2015). Nearly three-quarters of Animal Care employees have been involved in this effort to review and re-post documents. Shea Decl. ¶ 26. Thus far, after devoting almost four thousand staff workhours to this endeavor, the agency has re-posted over twenty thousand records – including all of the research facility annual reports that were previously posted, the entire list of licensees, and a substantial portion of the inspection reports. Id. ¶¶ 26-29. The agency has also provided a link to documents it once posted that remain accessible elsewhere, such as adjudicatory decisions available on USDA’s Office of ALJ Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 13 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 website. Compl. ¶ 38; Shea Decl. ¶ 31. APHIS anticipates expending hundreds of additional staff hours in this ongoing document review process in the coming months. Id. ¶ 26. At the same time, the agency continues to accept and process FOIA requests, including those that involve records previously posted online. Plaintiffs, various organizations dedicated to animal welfare, brought this action on February 23, shortly after the agency began reposting records to the website. See generally Compl. They seek declaratory and injunctive relief, including an order compelling the defendants to publish on their website the “categories” of records that were previously published there. Id. ¶ 74(D). They assert one claim under FOIA, alleging that the agency violated that statute’s “reading room” provision by failing to make electronically available all records previously posted on the agency’s website. Id. ¶¶ 44-46. Alternatively, plaintiffs assert two claims seeking the same relief under the APA and likewise challenging the agency’s removal of records and/or failure to post records on the agency’s website. Id. ¶¶ 59-72. On March 29, 2017, Plaintiffs filed a Motion for a Preliminary Injunction, seeking a mandatory preliminary injunction that would require the agency “to continue its years-long practice of allowing public access to the continually updated records in the APHIS databases,” Pl. PI Mot. 20 --- i.e., to publish on their website the categories of records previously posted there. On April 26, 2017, defendants filed their Opposition to Plaintiffs’ Preliminary Injunction Motion, and on May 3, 2017, plaintiffs filed their Reply brief, see Pls.’ Reply to Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (“Pl. PI Reply”), ECF No. 24. Defendants now move to dismiss the Complaint in its entirety. LEGAL STANDARD A Rule 12(b)(1) motion challenges the federal court’s subject matter jurisdiction. The party invoking the court’s jurisdiction bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion will be granted when, looking at the entirety of the complaint, its allegations fail to establish jurisdiction either facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). While in a facial attack, all material allegations are taken as true, the court does not assume the truthfulness Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 14 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the allegations in a factual attack and may review evidence beyond the complaint without converting the motion into one for summary judgment. In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1236 (9th Cir. 2008). ARGUMENT I. PLAINTIFFS’ FOIA CLAIM SHOULD BE DISMISSED Plaintiffs’ FOIA claim is subject to dismissal for lack of jurisdiction because they do not identify any “improper withholding” subject to judicial review under FOIA. First, they cannot show that the disputed records are “improperly withheld” under FOIA’s judicial review provision, § 552(a)(4)(B), because they do not identify any disclosure obligation under FOIA that applies to the categories of records as to which they seek relief. Second, even if § 552(a)(2) applied to the previously-posted records, as plaintiffs assert, they do not claim to have exhausted their administrative remedies with respect to the records sought here. Finally, plaintiffs’ FOIA claim is unripe thereby precluding a proper exercise of this Court’s jurisdiction. A. Plaintiffs Cannot Invoke the Court’s Jurisdiction Under FOIA Because They Have Not Alleged or Shown that the Removed Records Have Been “Improperly Withheld” Under § 552(a)(4)(B), federal jurisdiction in a FOIA case depends on a showing that an agency has “improperly withheld” agency records from the plaintiff. Kissinger, 445 U.S. at 150; see also Spurlock, 69 F.3d at 1015. Plaintiffs cannot make this threshold jurisdictional showing. They do not assert, as FOIA plaintiffs typically do, that the agency violated an obligation under § 552(a)(3) to produce records in response to a specific request. Rather, they purport to rely on § 552(a)(2), and assert that “[t]he agency deprived [them of] access to several categories [of] records which it is obligated to electronically publish under FOIA and threatened to deprive access to additional records.” Compl. ¶ 53. However, § 552(a)(2) does not categorically require publication of the types of records at issue, and plaintiffs thus cannot show that the failure to publish all of them constitutes an “improper[]” withholding sufficient to invoke the Court’s FOIA jurisdiction. Id. ¶ 54. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 15 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Plaintiffs Have Not Alleged that § 552(a)(2)(D) Requires Publication of All Previously Posted Categories of Records Plaintiffs wrongly assert that all previously posted records are subject to mandatory disclosure under § 552(a)(2)(D) because they are “frequently requested.” Contrary to plaintiffs’ suggestion, however, that provision does not apply to entire “categories” of records -- even if the agency receives frequent requests for records falling within that category. Rather, it applies only to particular records that: (1) have previously “been released to any person” in response to a FOIA request under § 552(a)(3); and (2) the agency determines “have become or are likely to become the subject of subsequent requests for substantially the same records,” or if the records have been requested “[three] or more times.” 5 U.S.C. § 552(a)(2)(D). Thus, no matter how “frequently requested” a record might eventually be, § 552(a)(2)(D) does not even potentially require disclosure until the record is actually processed and “released” to a “person” in response to a FOIA request under § 552(a)(3). See id. § 552(a)(2)(D)(i). As explained by the Department of Justice’s Office of Information Policy (“OIP”), the provision “does not even come into play until an agency processes and discloses records under the Act in the first place.” FOIA Post (2003): FOIA Counselor Q&A: "Frequently Requested" Records (further explaining that if agencies post records before receiving “even a first FOIA request,” then the posting is essentially “discretionary,” and cautioning agencies not to “confuse it with action taken under subsection (a)(2)(D)”) https://www.justice.gov/oip/blog/foia-post-2003-foia-counselor-qa-frequently- requested-records (last visited May 4, 2017). Plaintiffs do not allege that all the removed records meet this threshold requirement. To the contrary, the Complaint suggests that the records were posted routinely by category, i.e., presumably without waiting until they had been specifically requested, processed, and released to a person under § 552(a)(3). Compl. ¶¶ 33-35 (asserting that “all” records falling into various specified categories were published on the agency website). Similarly, plaintiffs’ Preliminary Injunction Motion asserts that the agency “routinely” published these categories of records “over the course of many years.” Pl. Mot. 1; Compl. ¶¶ 48-49; Shea Decl. ¶ 17 (explaining that the records were posted proactively). And there is no suggestion that these records were processed Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 16 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and “released” in response to a request after being posted on the website. To the contrary, the Complaint suggests that before the records were removed from the website, they never needed to be requested (let alone processed and released) because they were already easily accessible to the public. Even when they were requested, Plaintiffs acknowledge, the agency responded “not by releasing the records to the requester,” but by simply directing the requester to the website. Pl. PI Mot. 7 (emphasis added); Shea Decl. ¶ 17. Even if there were scattered instances of published records that were released in response to an individual FOIA request, it would not support plaintiffs’ claim that the provision applies to all previously published records, as well as future records in the same categories. Plaintiffs cite a 2009 letter from APHIS leadership as “evidence” the records were subject to mandatory disclosure under § 552(a)(2)(D), see Compl. ¶ 49; Pl. Mot. 6, but that letter in no way suggests that such posting was legally required. Quite the opposite, it emphasizes that posting records on the agency website has been part of a broader effort to go beyond what FOIA legally requires, in the interest of promoting transparency and making records “available online even before we receive a single FOIA request for them.” See USDA, APHIS’ Commitment to Transparency, https://go.usa.gov/x58Mm (last visited May 4, 2017). It cited the President’s statement that agencies “need not only comply with FOIA, but should work to share information proactively on policies and decisions so that members of the public don’t have to use the FOIA to obtain information held by their Government.” Id. See also Presidential Memorandum for Heads of Executive Departments and Agencies Concerning Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009); Office of the Attorney General, Memorandum of the Attorney General for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, (March 19, 2009), at 3, available at, https://go.usa.gov/x567T (last visited May 4, 2017). Furthermore, even if some agency officials have in the past believed that § 552(a)(2)(D) legally required the agency to post any of these categories of records, see Pl. PI Mot. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 17 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 (pointing to 2009 letter and 2014 FOIA response letter), that belief would not change the scope of the agency’s actual legal obligation under the provision.1 Perversely, plaintiffs ask the Court to conclude that such proactive disclosure could itself trigger a mandatory obligation under § 552(a)(2)(D). Plaintiffs’ Preliminary Injunction Motion asserts that the records were “previously released” in response to “any relevant FOIA request” when they were first published on the website, citing the fact that the agency subsequently directed requesters to the website for certain records responsive to particular FOIA requests. Pl. PI Mot. 7 (citing 5 U.S.C. § 552(a)(2)(D)). But directing FOIA requesters to publicly available records does not somehow convert those already-public records into records that have been “previously released” in response to a FOIA request.2 Nor does the subsequent act of referring requesters to the website constitute a “release” of the already-public records, as plaintiffs’ own brief essentially admits. See id. Plaintiffs’ argument is not only contrary to the plain language of § 552(a)(2)(D), but it would penalize agencies for engaging in proactive disclosures that go beyond what FOIA legally requires. If the mere act of posting records online could trigger a mandatory legal obligation under FOIA, preventing the agency from ever revisiting the decision, agencies would likely become more circumspect and reluctant to engage in the proactive disclosures. Plaintiffs’ argument would also subvert the explicit will of Congress, which included this threshold requirement to ensure that the disclosure obligation created under § 552(a)(2)(D) would be no more expansive than the agency’s pre-existing obligations to respond to specific FOIA requests under § 552(a)(3). See, e.g., S. Rep. No. 104-272, at 13 (1996) (stating that “once 1 As explained in the agency’s Opposition to plaintiffs’ Preliminary Injunction Motion, ECF No. 22, at 6-8 & n. 3, defendant acknowledges that certain agency officials have, in the past, understood the agency’s obligations under § 552(a)(2)(D) to sweep more broadly. 2 Unable to reconcile their original position with the plain language of the provision, plaintiffs now appear to have abandoned their assertion that the initial publication was a “release” in response to “any relevant FOIA request.” Instead, they now argue that a “release” occurred after the records were published on the internet whenever the agency referred requesters to particular records available there. Pl. PI Reply 7-9. That assertion is likewise contrary to the plain language and intent of the provision, and to plaintiffs’ own admission in their prior filings that such referrals did not constitute a “release.” Pl. PI Mot. 7 (stating that the act of referring requesters to the website is “not” releasing records to the person in response to the FOIA request). Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 18 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 released in response to a specific request under the FOIA, complying with the new requirement of making the previously released material, even in a redacted form, available for public inspection and copying should not be a burdensome undertaking”); H.R. Rep.104–795, at 21 (1996), as reprinted in 1996 U.S.C.C.A.N. 3448, 3464 (stating that the provision will “help to reduce the number of multiple FOIA requests for the same records requiring separate agency responses” (emphasis added)). 2. Plaintiffs Have Not Alleged that § 552(a)(2)(A) Requires Publication In the alternative, plaintiffs argue that three categories of disputed records – inspection reports, official warning letters, and voluntary settlement agreements – are subject to mandatory disclosure under § 552(a)(2)(A).3 Compl. ¶ 47. That provision applies to “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.” 5 U.S.C. § 552(a)(2)(A) (emphasis added). As such, it requires disclosure only of decisions that “result from an adjudicatory process such that [a court] would consider them ‘final opinions’ rendered in the ‘adjudication of a case .’” AILA, 830 F.3d at 679 (citation omitted). Further, it applies only to decisions “that ‘constitute the making of law or policy by an agency’” – i.e., decisions that set some precedent or have some “binding force on the agency in later decisions . . . .” Id. (citing Sears, Roebuck & Co., 421 U.S. at 153). See also Skelton v. U.S. Postal Serv., 678 F.2d 35, 40 (5th Cir. 1982) (explaining that this FOIA requirement was designed to “help the citizen find agency statements ‘having precedential significance’ when he becomes involved in ‘a controversy with an agency’” (quoting legislative history)). None of the three categories of records plaintiffs identify reflect decisions of this sort, as their own description of the records makes clear. See, e.g., Compl. ¶¶ 33-35. Inspection reports, official warning letters, and voluntary settlement agreements are not the product of an 3 Although the Complaint also asserts that “Letters of Information” are required to be made available, Compl. ¶ 47, plaintiffs appear to have abandoned any such claim. In fact, Letters of Information were not among those previously made available by the agency on the website. Shea Decl. ¶ 4. Plaintiffs’ Preliminary Injunction Motion does not suggest that letters of information were previously posted on the website or argue that they should be disclosed under § 552(a)(2)(A). Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 19 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adjudicatory process at all, let alone records that could deemed “final opinions” made after such a process. Inspection reports document findings of APHIS inspectors who periodically inspect regulated facilities. The content of such reports may later form the evidentiary basis of a violation alleged in an official warning letter, voluntary settlement agreement, or administrative complaint, but they do not constitute a determination that a violation occurred.4 Similarly, official warning letters and voluntary settlement agreements are based on alleged violations and reflect pre-adjudicatory actions that serve as alternatives to the initiation of a formal adjudicative proceeding. Shea Decl. ¶¶ 4, 9-13; see also Compl. ¶¶ 35-36. As they are not part of an adjudicatory process, they are not subject to affirmative disclosure under § 552(a)(2)(A). Nor do inspection reports, official warning letters and voluntary settlement agreements reflect the sorts of agency action that “constitute the making of law or policy by an agency.” AILA, 830 F.3d at 679 (citation omitted). These types of records have no binding or precedential effect on the agency, nor any effect on regulated entities other than the one involved. Shea Decl. ¶¶ 12-13. Contrary to plaintiffs’ suggestion, the records at issue here bear no resemblance to the legal memoranda found to be “final opinions” in Sears, Roebuck & Co., 421 U.S. at 133. The memoranda in Sears reflected a legal or policy decision already adopted by the agency’s General Counsel, and the agency’s reasons for directing dismissal of a formal charge filed by a private party seeking to vindicate statutory rights pursuant to a statutorily prescribed process. See id. at 138-42, 157-59. See also id. at 138 (emphasizing that the function of the documents in the particular administrative process at issue was “[c]rucial” to the Court’s decision). The records at issue here are nothing like that. Skelton, 678 F.2d at 40 (noting distinctive features of administrative process in Sears). Even as to the regulated entity, they reflect merely evidence of possible violations gathered by inspectors, or “alleged” violations that may eventually lead to 4 See, e.g., In re: Marilyn Shepherd, AWA Dkt. No. 96-0084, 1998 WL 385884, at *27 (57 Agric. Dec. June 26, 1998) (explaining that “APHIS inspectors only gather and provide evidence to the fact-finder, which in the first instance is an administrative law judge. Subsequent to an administrative law judge's initial decision and order, either party may appeal to the Secretary, who has, in turn, delegated authority to act as final deciding officer to the Judicial Officer. Thus, the inspector does not decide which regulations a respondent violated; the inspector only provides evidence about alleged violations.”) Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 20 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 formal administrative proceedings in which the regulated entity could become a party. Shea Decl. ¶¶ 12-13. Indeed, plaintiffs’ own description of records that remain available further undermines plaintiffs’ suggestion that the three categories constitute “final opinions . . . made in the adjudication of cases” under § 552(a)(2)(A). Plaintiffs explain that if APHIS “initiates formal administrative proceedings, an Administrative Law Judge (“ALJ”) hears the case,” and that “[t]hose cases usually end in either a consent decision or a final ALJ decision.” Compl. ¶ 36. Plaintiffs’ Complaint also acknowledges that the agency continues to make available “final” decisions made after the agency conducts “formal administrative proceedings . . . .” Id. (acknowledging that such decisions remain available in electronic form on the USDA website of Office of the Administrative Law Judges). B. Plaintiffs Have Not Shown That They Properly Exhausted Their Administrative Remedies Under FOIA Plaintiffs also cannot establish jurisdiction because they do not claim to have exhausted their administrative remedies for a properly submitted FOIA request seeking the records in dispute. See In re Steele, 799 F.2d at 466. Contrary to plaintiffs’ apparent assumption, even a plaintiff seeking judicial enforcement of affirmative-disclosure provisions must submit a proper FOIA request and exhaust available administrative remedies under the statute prior to bringing suit. See id. (“The complainant must request specific information in accordance with published administrative procedures, see 5 U.S.C. § 552(a)(1), (2) & (3), and have the request improperly refused before that party can bring a court action under the FOIA.”). Indeed, the statute’s plain language contemplates submission of requests under all three of FOIA’s access provisions – including the reading room provision, § 552(a)(2) – and establishes procedures for exhausting administrative remedies with respect to each such request. See 5 USC § 552(a)(6)(A) (setting forth time limits applicable to any “request for records made under” § 552(a)(1), (2) or (3)). Courts have long recognized that these prerequisites to seeking judicial review under FOIA, even in cases where a plaintiff seeks to enforce 552(a)(2). See Irons v. Schuyler, 465 F.2d 608, 614 (D.C. Cir. 1972) (rejecting claim for records under § 552(a)(2) because plaintiff had not Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 21 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submitted a FOIA request for identifiable records under either § 552(a)(2) or 552(a)(3)); CREW v. DOJ, 164 F. Supp. 3d 145, 154 (D.D.C. 2016) (explaining that § 552(a)(2) can be enforced by submitting a request under either § 552(a)(3) or “directly under Section 552(a)(2), so long as the request, like those made under Section 552(a)(3), is for ‘identifiable’ records” (citation omitted)), aff’d, 846 F.3d 1235 (D.C. Cir. 2017); CREW, 846 F.3d at 1240–41 (quoting with approval Irons’ statement that categories of records “referred to in Section 552(a)(2), when properly requested, are required to be made available, and such requirement is judicially enforceable without further identification under Section 552(a)(3), even though the agency has failed to make them available as required by Section 552(a)(2)” (emphasis added))5; Prisology, Inc. v. Federal Bureau of Prisons, 852 F.3d 1114, 1117 (D.C. Cir. 2017) (stating that in all cases involving enforcement of § 552(a)(2), “the plaintiff made a request . . . and the agency denied the request”). The Complaint does not allege that plaintiffs complied with these jurisdictional prerequisites before seeking judicial review, and their FOIA claim should thus be dismissed for lack of jurisdiction. See, e.g., Benhoff v. DOJ, No. 16-cv-1095, 2016 WL 6962859, at *4 (S.D. Cal. Nov. 29, 2016). Although the Complaint alleges that plaintiffs submitted some requests for different types of removed records at unspecified times, it does not tie the relief sought in this case to any of those requests, nor does it suggest that any of those requests were exhausted prior to bringing this suit. Compl. ¶ 48. Indeed, it appears impossible that plaintiffs could have exhausted their remedies in the 20 calendar days between the time records were removed from the website on February 3 and the time this suit was filed on February 23. See 5 U.S.C. §§ 552(a)(6)(A)(i) & (ii), (C)(i). 5 In their latest brief, Pl. PI Reply 5, plaintiffs misinterpret the CREW court’s statement that plaintiffs may seek to enforce § 552(a)(2) “without first making a request for specific records under section 552(a)(3).” The court was not suggesting a plaintiff could bring suit without making any request at all. To the contrary, it explicitly acknowledged the holding in Irons that 552(a)(2) records must be “properly requested.” See CREW, 846 F.3d at 1240-41 (quoting Irons, 465 F.2d at 614). Rather, the court was simply alluding to the fact that a plaintiff could request records under 552(a)(2) without providing the additional specificity that might be required in a request under 552(a)(3). See id. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 22 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs assert that exhaustion of remedies is too time-consuming, but Congress anticipated and addressed such problems in the statute, allowing requesters to file suit immediately if their requests are left unaddressed for more than 20 working days. Id. Congress even went further, allowing requesters to seek expedited processing if there are sufficiently compelling reasons why their particular requests should be prioritized over the requests of others. See id. § 552(a)(6)(E). If plaintiffs feel they qualify for such prioritized treatment, they should seek it through the proper channels, and should do so before bringing suit.6 In effect, plaintiffs ask the Court to let them bypass the prescribed process altogether and jump to the front of the line – ahead of all other FOIA requesters who (unlike plaintiffs) properly exhaust their administrative remedies before filing suit. See 7 C.F.R. § 1.8(d) (stating that requests are processed on a “first- in, first-out” basis); Morales v. Secretary, U.S. Dep’t of State, No. 16-cv-1333, 2016 WL 6304654, at *4 (D.D.C. Oct. 27, 2016) (stating that relief “would harm others waiting for their FOIA requests to be processed, and would erode the proper functioning of the FOIA system”). This request is especially improper given that the agency is already engaged in a review process designed to ensure records will be reposted to the extent possible, and that process has already resulted in many thousands of the records being reposted. See Shea Decl. ¶¶ 28-31. C. Plaintiffs’ FOIA Claim Is Not Ripe For similar reasons, Plaintiffs’ FOIA claim is not ripe.7 Ripeness doctrine “serves to ‘prevent courts from entangling themselves in abstract disagreements over administrative 6 The Court should reject plaintiffs’ latest suggestion, see Pl. PI Reply 6, that they are free to file suit prematurely, and then simply amend their Complaint when the 20 business-day time for response to their request has run. It is well-settled that plaintiffs must exhaust their remedies before seeking judicial review. See In re Steele, 799 F.2d at 465-66 (reversing district court for failing to require FOIA exhaustion “before” filing suit, instructing district court to dismiss for lack of jurisdiction, and stating that upon dismissal, plaintiffs “may initiate proceedings pursuant to the FOIA”). 7 It appears that unripe claims are subject to dismissal in this Circuit for lack of jurisdiction under Rule 12(b)(1). See Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770, 784 n. 9 (9th Cir. 2000); Maraldo v. Life Ins. Co. of the Southwest, 2012 WL 1094462, at *2 (N.D. Cal. 2012). In any event, plaintiffs’ unripe claims would be subject to dismissal under Rule 12(b)(6), even if not under Rule 12(b)(1). See Hayes Oyster Co. v. Oregon Dep’t of Envtl. Quality, 2017 WL 1381659, at *3 n.1 (D. Or. 2017). Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 23 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” WildEarth Guardians v. Montana Snowmobile Ass'n, 790 F.3d 920, 933 (9th Cir. 2015) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Determining ripeness “depends on two factors: ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’” Coons v. Lew, 762 F.3d 891, 900 (9th Cir. 2014) (quoting Abbott Labs., 387 U.S. at 149). “A controversy is ripe when a plaintiff is challenging a final agency action, the issue poses purely legal questions and plaintiff has demonstrated hardship absent review.” Long v. Bureau of Alcohol, Tobacco and Firearms, 964 F. Supp. 494, 498 (D.D.C. 1997) (finding the issue of plaintiffs’ requester status with regard to future requests not ripe absent pending FOIA fee waiver request). See also Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989) (“A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.”). Plaintiffs’ FOIA claim meets none of these prerequisites. First, the decision challenged does not reflect the agency’s final decision about what records should be made available on the website, and it is thus clearly not fit for judicial review. In “cases involving administrative agencies,” the ripeness doctrine “recognize[s] that judicial action should be restrained when other political branches have acted or will act.” Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 670 (9th Cir. 2005). And “the interest in postponing review is strong if the agency position whose validity is in issue is not in fact the agency’s final position.” Gulf Oil Corp. v. Brock, 778 F.2d 834, 841 (D.C. Cir. 1985). This is especially true where, as here, the agency is in the midst of an ongoing review process that judicial review would only serve to disrupt. That process has already resulted in records being once again made available on the public website. See Compl. ¶ 40 (acknowledging that the agency began reposting annual reports on February 17); USDA, APHIS, Stakeholder Announcements dated Feb. 17, Feb. 24, Mar. 3, Mar. 10 & Apr. 21: Updates to APHIS’ Website Involving Animal Welfare Act Compliance Information. https://go.usa.gov/x5bpS (last visited May 8, 2017); Shea Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 24 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decl. ¶ 28 (stating that the ongoing review process has already resulted in the reposting of over 20,000 removed records). Other ripeness factors only reinforce the conclusion that Plaintiffs’ claim is not fit for judicial review: For one, it does not involve “purely legal” issues. The applicability of § 552(a)(2) turns on factual questions about whether particular records have been “released” to a person in response to a specific FOIA request under § 552(a)(3), and whether those same released records have been or likely will be requested three or more times. And even if § 552(a)(2) applied to some records, the scope of any such obligation would still require litigation of factual bases for any exemption claims by the agency. Any attempt to resolve those factual issues on this complaint would be judicially unmanageable, and would clearly “benefit from a more concrete setting.” Am. Petrol. Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012). The universe of records at issued is vast, ill-defined, and ever-changing because plaintiffs apparently seek prospective relief with respect to future records as they are obtained and/or created, and because the ongoing review process has already resulted in many thousands of records being reposted to the agency website, thereby rendering moot any claim for disclosure as to those records. Trying to resolve the factual issues raised by plaintiffs’ claim would be exceedingly difficult in these circumstances, and would in any event require judicial review that is largely duplicative of (and disruptive of) the ongoing review process that is already underway at the agency. At the very least, judicial review of such issues would be more manageable in the context of a specific FOIA request, as courts have “routinely” recognized. Gulf Oil Corp., 778 F.2d at 842. See also, e.g., Webb v. HHS, 696 F.2d 101, 106–08 (D.C. Cir. 1982); FTC v. Owens- Corning Fiberglass Corp., 626 F.2d 966, 972–73 (D.C. Cir. 1980); FTC v. Anderson, 631 F.2d 741, 748-49 (D.C. Cir. 1979). “Without a specific request at issue, [plaintiffs’] claim becomes a ‘generalized challenge’ which would be on a ‘much surer footing in the context of a specific application.’” Gulf Oil Corp., 778 F.2d at 842 (citation omitted). The “Supreme Court cautioned against engaging in judicial review before the ‘controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 25 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 harm the complainant.’” WildEarth Guardians, 790 F.3d at 933 (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 873 (1990)). Finally, plaintiffs would suffer no cognizable hardship from delayed review. Hardship in this context “does not mean just anything that makes life harder; it means hardship of a legal kind, or something that imposes a significant practical harm upon the plaintiff.” Nat. Res. Def. Council v. Abraham, 388 F.3d 701, 706 (9th Cir. 2004). Plaintiffs must show that postponing review imposes a hardship on them “that is immediate, direct, and significant.” Colwell v. HHS, 558 F.3d 1112, 1128 (9th Cir. 2009) (citation omitted). Here, the only “hardship” identified is the inability to immediately access all the same records that were previously on the agency website. But plaintiffs already have access to many thousands of such records that have been reposted on the website as a result of the ongoing review, and they have made no showing that they need immediate access to the remaining records, or that obtaining them through the normal FOIA process would impose a hardship. Plaintiffs complain that FOIA requests take too long, but again, Congress already addressed this problem, allowing requesters to file suit immediately if their requests and/or administrative appeals are left unaddressed for more than 20 working days. See Gulf Oil Corp., 778 F.2d at 842 (“The burden of having to file another suit is hardly the type of hardship which warrants immediate consideration of an issue presented in an abstract form.” (citation omitted)); Reg’l Mgmt. Corp., Inc. v. Legal Servs. Corp., 186 F.3d 457, 466 (4th Cir. 1999) (same). D. The Court Lacks Jurisdiction to Grant the Relief Sought Because FOIA Does Not Authorize Courts to Order Publication of Records Finally, FOIA does not entitle plaintiffs to the relief sought here, namely, an order requiring the agency to make records available to the public. The judicial review provision under FOIA, 5 U.S.C. § 552(a)(4)(B), “is aimed at relieving the injury suffered by the individual complainant, not by the general public.” Kennecott Utah Copper Corp., 88 F.3d at 1203. And contrary to plaintiffs’ suggestion, this provision only “authorizes district courts to order the ‘production’ of agency documents, not ‘publication.’” Id. (explaining that provision “is aimed at relieving the injury suffered by the individual complainant, not by the general public,” and Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 26 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “ordering publication goes well beyond that need”). Thus, as the D.C. Circuit recently confirmed, “a court has no authority under FOIA to issue an injunction mandating that an agency ‘make available for public inspection’ documents subject to the reading-room provision.”8 CREW v. DOJ, 846 F.3d at 1243. See also Kennecott, 88 F.3d at 1202 (affirming dismissal for lack of jurisdiction claim under § 552(a)(1) because FOIA does not authorize courts to order publication). II. PLAINTIFFS’ APA CLAIMS SHOULD BE DISMISSED Unwilling to abide by the statutory constraints Congress set forth in FOIA, plaintiffs assert two claims under the APA, as alternative grounds for the same relief. Count Two asserts an APA claim for allegedly unlawful “failure to act,” namely, to make available categories of records that in plaintiffs’ view are required to be posted on the website. Compl. ¶ 59 (citation omitted). Count Three asserts that the agency’s “removal of enforcement records” and “databases” from the website is arbitrary and capricious. Id. ¶¶ 72-73. Regardless of how they frame their APA claims, however, they are clearly improper and should be dismissed for lack of jurisdiction. Plaintiffs seem to acknowledge as much in their latest brief, see Pl. PI Reply, which no longer argues that plaintiffs are likely to succeed on their APA claims. A. Judicial Review Is Unavailable Under the APA Because FOIA Provides an Adequate Remedy For Plaintiffs’ Alleged Injuries Congress did not intend the APA to “duplicate existing procedures for review of agency action” or “provide additional judicial remedies in situations where . . . Congress has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (citation omitted). Thus, the APA provides judicial review of “final agency action for which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704 (emphasis added). See also City of Oakland v. Lynch, 798 F.3d 1159, 1166-67 (9th Cir. 2015). To be deemed “adequate,” 8 Plaintiffs’ urge the Court not to follow these D.C. Circuit decisions, Pl. PI Reply 3, but they cite no case anywhere that has adopted plaintiffs’ own contrary position. In any event, the Supreme Court has long since rejected the notion – advanced by plaintiffs here – that § 552(a)(4)(B) authorizes courts to enjoin withholdings other than those in which agency records are “improperly withheld from the complainant.” See Kissinger, 445 U.S. at 150. Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 27 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and thus preclusive of APA review, an alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the “same genre.” See Garcia v. McCarthy, No. 13-cv-03939, 2014 WL 187386, at *13 (N.D. Cal. Jan. 16, 2014) (Orrick, J.) (citing Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009)). For example, a remedy will be deemed adequate “where a statute affords an opportunity for de novo district-court review” of the agency action being challenged. El Rio Santa Cruz Neighborhood Health Ctr. v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005). Relief also will be adequate “where there is a private cause of action against a third party otherwise subject to agency regulation.” Id. at 1271. In this case, FOIA clearly provides an “adequate” remedy that precludes APA review. Regardless of whether plaintiffs characterize the cause of their injury as the agency’s failure to affirmatively disclose “categories of records previously published” on the agency’s website, as in Count Two, Compl. ¶¶ 58-63, or the arbitrary and capricious “removal of enforcement records from its website[,]” as in Count Three, Compl. ¶ 72, the essential nature of that injury is the same. They claim they are being improperly deprived of access the records previously posted on the agency’s website. FOIA clearly provides an adequate remedy for that purported informational injury. Plaintiffs may submit a request for those records and, if dissatisfied with the agency’s response, seek de novo review under FOIA in district court. See 5 U.S.C. § 552(a)(4)(B). Thus, FOIA provides plaintiffs with a private right of action and an opportunity for de novo review in district court, amply demonstrating Congress’s intent to create an adequate remedy that bars APA review. See Garcia v. Vilsack, 563 F.3d at 523. Indeed, the D.C. Circuit recently reached precisely that conclusion, explaining that it had “little doubt that FOIA offers an ‘adequate remedy’” for violations of § 552(a)(2), the same provision relied on by plaintiffs here. CREW v. DOJ, 846 F.3d at 1245 (citing 5 U.S.C. § 704). The court emphasized that “in FOIA Congress established ‘a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment.’” Id. (citing Kissinger, 445 U.S. at 150). Considering the statute as a whole, the court concluded, FOIA offers plaintiff “precisely the kind of ‘special and adequate Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 28 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 review procedure[ ]’ that Congress immunized from ‘duplic[ative]’ APA review. Id. (citing Bowen, 487 U.S. at 903 (alterations in original)). Plaintiffs wrongly suggest that FOIA is inadequate because it does not entitle them to precisely the relief they seek, such as a court order requiring the agency to publish records on its website or in a particular database. But FOIA plainly offers relief of the “same genre,” and is thus adequate. See Garcia, 2014 WL 187386, at *11 (citing Garcia v. Vilsack, 563 F.3d at 522). Remedies “may be more arduous, and less effective in providing systemic relief,” but “situation- specific litigation affords an adequate, even if imperfect, remedy.” Id. (citation omitted). Consistent with that approach, the D.C. Circuit squarely rejected the suggestion – advanced by plaintiffs here – that FOIA is “inadequate” because it only authorizes courts to require production to a particular complainant, and does not authorize courts to order agencies to make records publicly available under § 552(a)(2). See CREW, 846 F.3d at 1239 (explaining that plaintiff can still get access to FOIA records it seeks through direct production, rather than publication). The same conclusion applies here. B. Plaintiffs Do Not Challenge Any Final Agency Action Subject to Judicial Review Under the APA The APA limits judicial review to final agency action. See 5 U.S.C. § 704. Finality “is a jurisdictional requirement to obtaining judicial review under the APA . . . .” Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008). To be “final,” the action must “mark[] the consummation of the agency’s decisionmaking process” and “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). The challenged action here meets neither requirement. First, removal of access to the records, whether by removing the searchable database or removing records from the website, does not reflect the consummation of any decision-making process about whether and how records should be made available on the website. The agency made clear the decisions were part of an “ongoing review process,” and that “adjustments may be made” because “access decisions were not final . . . .” See Shea Decl. ¶¶ 25-26. These are not merely “labels,” they are accurate Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 29 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 descriptions of what the agency has actually been doing. See id. ¶¶ 23-31. Plaintiffs’ own Complaint acknowledges that as of February 17, 2017, the agency began reposting records previously removed from the agency website. Compl. ¶ 40. The agency has devoted thousands of hours to this ongoing review, and has now reposted many thousands of the records that were removed. Shea Decl. ¶¶ 28-31. See also USDA, APHIS, Stakeholder Announcements dated Feb. 17, Feb. 24, Mar. 3, Mar. 10 & Apr. 21: Updates to APHIS’ Website Involving Animal Welfare Act Compliance Information. https://go.usa.gov/x5bpS (last visited May 8, 2017). APHIS is also making programming modifications to the public search tool to ensure privacy concerns are reliably addressed. Shea Decl. ¶ 24. Second, the temporary removal of records from the website does not determine any rights or obligations or result in legal consequences. If it did, every modification to the website could be said to have this effect. While the removal may mean that plaintiffs cannot (at least not at this moment) access all the records previously available on the website, that is a “practical effect” of what the agency did, not a “legal consequence.” Fairbanks N. Star, 543 F.3d at 596. For this reason, plaintiffs’ reliance on Navajo Nation v. U.S. Dep’t of Interior, 819 F.3d 1084, 1091 (9th Cir. 2016), is misplaced. Pl. PI Mot. 10-11. There, the court found the challenged decision was final not because it delayed the Navajo Nation’s access to certain items by a period of months, as plaintiffs have asserted, but because it constituted a “legal determination” of the Navajo Nation’s “property interests” in those items. Navajo Nation, 819 F.3d at 1091-92. The removal of records here does not give rise to any such legal consequences. As such, plaintiffs do not satisfy the second requirement of finality, and judicial review would be unavailable even if they had met the first requirement.9 See id. (explaining that judicial review is unavailable even when the first prong was satisfied because the second prong was not met). 9 Plaintiffs’ claims would fare no better framed as a challenge to agency action “unlawfully withheld” under the APA 5 U.S.C. § 706(1). Any such claim would fail because, inter alia, plaintiffs do not identify a “discrete agency action” that the agency is “legally required to take.” Zixiang Li v. Kerry, 710 F.3d 995, 1003 (9th Cir. 2013) (citation omitted) (noting that discrete action must be “‘legally required’ — in the sense that the agency's legal obligation is so clearly set forth that it could traditionally have been enforced through a writ of mandamus”). Certainly, plaintiffs have identified no clear, mandatory legal obligation to make all previously-posted Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 30 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Plaintiffs’ APA Claims Fail for Numerous Other Reasons Plaintiffs also assert that they are entitled to APA review (under the “arbitrary and capricious” standard) even if § 552(a)(2) does not require disclosure. Compl. ¶ 65. To the contrary, the absence of a disclosure obligation under FOIA means that plaintiffs would lack Article III standing to bring an APA claim at all. An “informational injury” can give rise to standing only if plaintiffs have been deprived of information to which they are statutorily entitled. See, e.g., Wilderness Soc’y., Inc. v. Rey, 622 F.3d 1251, 1258-59 (9th Cir. 2010). Further, the absence of a disclosure obligation under FOIA also means there is “no law to apply” under the APA, and the decision is thus “committed to agency discretion” rather than subject to judicial review. Senate of State of Cal. v. Mosbacher, 968 F.2d 974, 976 (9th Cir. 1992) (reversing preliminary injunction compelling disclosure because, absent a disclosure obligation under FOIA or other law, decision not to release information is committed to agency discretion and unreviewable under APA). Finally, even if APA review of the decision to temporarily remove the records were possible, plaintiffs could not obtain the relief sought here, namely, an order requiring the agency to make the removed records public and to continue “updat[ing]” the website and/or database with new records. Pl. PI Mot. 17. When agency action is set aside as arbitrary and capricious, the only proper course is to remand the matter to the agency for further review. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014). That, of course, is precisely what the agency is already doing in the ongoing review process. CONCLUSION Accordingly, plaintiff’s complaint should be dismissed for lack of jurisdiction. Dated: May 8, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney MARCIA BERMAN categories of records available on the website or in a searchable database on an ongoing basis. See id. (rejecting similar claim for prospective relief that would “compel Defendants to make copies of the waiting lists for visas publicly available, and to waive the fees for Plaintiffs to renew their employment authorizations while waiting for immigrant visa numbers”). Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 31 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Assistant Branch Director Civil Division /s/ Peter M. Bryce_________________ PETER M. BRYCE (IL Bar No. 6244216) Senior Counsel ANJALI MOTGI (Tex. Bar No. 24092864) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Room 7138 Washington, D.C. 20044 Tel: (202) 616-8335/Fax: (202) 616-8470 E-mail: peter.bryce@usdoj.gov COUNSEL FOR DEFENDANTS UNITED STATES DEPARTMENT OF AGRICULTURE and ANIMAL AND PLANT HEALTH INSPECTION SERVICE Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 32 of 33 Defs.’ Mot. to Dismiss Compl.; [Proposed] Order No. 3:17-cv-00949-WHO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER Having considered Defendants’ Motion to Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), and any opposition, reply, and oral argument presented, the Court finds that it lacks subject matter jurisdiction over Plaintiff’s claims and therefore IT IS HEREBY ORDERED that this action is dismissed with prejudice. IT IS SO ORDERED. Dated: __________________________ __________________________________ WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE Case 3:17-cv-00949-WHO Document 26 Filed 05/08/17 Page 33 of 33