WASHINGTON, Aug. 3, 2016 – A federal appeals court will hear arguments for a second time on whether FDA should release detailed information on egg production in Texas. And this time around, the result could be different.

The 9th Circuit Court of Appeals decided today to grant the Animal Legal Defense Fund’s petition for rehearing en banc, which means that a panel of 11 judges – not the usual three – will hear the case.

In April, the appeals court ruled that Magistrate Judge Elizabeth Laporte’s August 2013 decision in favor of FDA was the correct one. Laporte found that ALDF had no right under the Freedom of Information Act (FOIA) to know the total hen population in Texas, the number of hen houses and additional details, because public release of that information would place egg producers at risk of underbidding by competitors.

FDA had redacted – essentially, crossed out – information on 277 of the 398 pages it released to ALDF. Laporte ordered FDA to disclose the number of hens per cage but upheld the agency’s decision to keep other information under wraps, including the number of floors per hen house, the number of cage rows per house and the number of cage tiers per house.

But even as they affirmed Laporte’s opinion, the three appellate judges also included an unusual addendum, urging the 9th Circuit to consider the case en banc.

The reason? They felt it was time for the 9th Circuit to review its legal standard for reviewing FOIA decisions made by district courts. The court’s current standard requires it to find “clear error” in the lower court’s reasoning in order to reverse a decision – an extremely deferential standard.

“That peculiar standard means that a dispute of material fact does not necessarily defeat summary judgment,” 9th Circuit Judges Susan P. Graber, Kim McLane Wardlaw and Mary H. Murguia said in their concurrence.

In general, the 9th Circuit reviews district court decisions de novo, meaning that it is taking a new look at the evidence without deferring to the lower court’s judgment on the facts.

“Even if we assume that the sensitive nature of documents withheld under a FOIA exemption calls for deference in some contexts, why we defer to the district court in cases such as

this one . . . remains unclear,” 9th Circuit Judges Susan P. Graber, Kim McLane Wardlaw and Mary H. Murguia said in their concurrence.

In this case, “the factual inquiry on which the summary judgment turns  . . . does not depend on a review of withheld information,” they said, but on the effect that release of the data would have.

“De novo review would be consistent with our usual summary judgment standards,” the judges said in their concurrence.

“The Animal Legal Defense Fund is optimistic we’re on the right side of the argument and the 9th Circuit will recognize we’re on the right side,” said ALDF staff attorney Christopher Berry.

“Fundamentally, I think the case is about the right of citizens to contest government redaction of information under FOIA,” he said.

ALDF contends that release of the hen numbers won’t harm egg producers, because the information is already available from other sources. Laporte, Berry said, gave more weight to declarations submitted by the government’s experts than she did to the ones submitted by ALDF.


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