ALDF v. FDA
Filed per curiam opinion (SIDNEY R. THOMAS, STEPHEN REINHARDT, ALEX KOZINSKI, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JAY S. BYBEE, MILAN D. SMITH, JR., MORGAN B. CHRISTEN, JACQUELINE H. NGUYEN and JOHN B. OWENS)We confine our en banc consideration to the question of controlling circuit precedent. We decline as an en banc court to reach any other issue presented by the parties. The threejudge panel that heard the appeal was bound by the standard articulated in Church of Scientology and issued its opinion based on that assumption. In issuing our order granting rehearing en banc, we declared that the three-judge panel opinion should not be cited as precedent by or to any court of the Ninth Circuit. Animal Legal Def. Fund v. FDA, F.3d , No. 13-17131, 2016 WL 4120696 (9th Cir. Aug. 3, 2016). With this correction of our precedent, en banc proceedings with respect to this case are terminated, and we return control of the case to the three-judge panel. The panel will resolve the merits issues in this case and will issue a new or an amended opinion.3 REMANDED. 
Case: 13-17131, 09/02/2016, ID: 10110912, DktEntry: 75, Page 1 of 7
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANIMAL LEGAL DEFENSE FUND,
U.S. FOOD & DRUG
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Submitted En Banc August 26, 2016*
San Francisco, California
Filed September 2, 2016
Before: Sidney R. Thomas, Chief Judge, and Stephen
Reinhardt, Alex Kozinski, Ronald M. Gould, Richard A.
Paez, Richard C. Tallman, Jay S. Bybee, Milan D. Smith,
Jr., Morgan Christen, Jacqueline H. Nguyen and John B.
Owens, Circuit Judges.
Per Curiam Opinion
The en banc court unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
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ALDF V. USFDA
Freedom of Information Act
The en banc court adopted a de novo standard of review
for summary judgment decisions in Freedom of Information
Act cases, overruled other decisions to the contrary, and
remanded the case to the three-judge panel to resolve the
Monte M.F. Cooper, Derek F. Knerr, and Scott Lindlaw,
Orrick, Herrington & Sutcliffe LLP, Menlo Park, California,
Dara S. Smith and Michael S. Raab, Attorneys, Appellate
Staff; Victoria R. Carradero, Assistant United States
Attorney; Civil Division, Department of Justice, Washington,
D.C.; for Defendant-Appellee.
Caitlin Zittkowski and Cristina R. Stella, San Francisco,
California, as and for Amicus Curiae Center for Food Safety.
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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ALDF V. USFDA
We voted to rehear this case en banc to reconsider our
circuit precedent on the standard of review applicable to
summary judgment decisions in cases brought pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We
agree with the three-judge panel that the appropriate standard
of review is de novo.
We adopt and reiterate the reasoning set forth by the
three-judge panel in its concurrence. Under our usual
practice, “[w]e review the district court’s grant or denial of
motions for summary judgment de novo.” Ariz. Dream Act
Coal. v. Brewer, 818 F.3d 901, 908 (9th Cir. 2016) (citing
Besinga v. United States, 14 F.3d 1356, 1359 (9th Cir. 1994)).
Thus, on appellate review, we employ the same standard used
by the trial court under Federal Rule of Civil Procedure 56(c).
See Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d
1110, 1131 (9th Cir. 2003). As required by that standard, we
view the evidence in the light most favorable to the
nonmoving party, determine whether there are any genuine
issues of material fact, and decide whether the district court
correctly applied the relevant substantive law. See Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
Most FOIA cases are resolved by the district court on
summary judgment, with the district court entering judgment
as a matter of law. See Wickwire Gavin, P.C. v. U. S. Postal
Serv., 356 F.3d 588, 591 (4th Cir. 2004). But some FOIA
cases require resolution of disputed facts. See, e.g., GC
Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1110
(9th Cir. 1994) (requiring a factual determination of
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ALDF V. USFDA
substantial competitive harm). In those cases, we have
employed a different summary judgment standard, as we
described in Yonemoto v. Department of Veterans Affairs:
[I]n essence, we treat the judgment as if it
were a bench trial: We first determine, de
novo, “whether an adequate factual basis
exists to support the district court’s
decisions.” If not, we must remand for further
development of the record. If such a basis
does exist, “then the district court’s
conclusions of fact are reviewed for clear
error”—which is the way in which the
proceeding is treated like a bench
trial—“while legal rulings, including its
decision that a particular exemption applies,
are reviewed de novo.”
686 F.3d 681, 688 (9th Cir. 2012) (footnote and citations
This “two-step test,” Lion Raisins Inc. v. U.S. Dep’t of
Agric., 354 F.3d 1072, 1078 (9th Cir. 2004), began with
Church of Scientology of California v. U.S. Department of the
Army, 611 F.2d 738 (9th Cir. 1979), in which we borrowed
the “clearly erroneous” standard from the D.C. Circuit, id. at
743 (citing Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,
566 F.2d 242, 251 n. 13 (D.C. Cir. 1977)). However, the
D.C. Circuit has long since abandoned this standard and,
If “the parties do not dispute that the court had an adequate basis for
its decision, we review de novo the court’s conclusion” that the documents
are exempt from disclosure. Lissner v. U.S. Customs Serv., 241 F.3d
1220, 1222 (9th Cir. 2001) (emphasis added) (citation omitted).
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ALDF V. USFDA
instead, now reviews summary judgment decisions in FOIA
cases de novo, as in all other cases. See Petroleum Info.
Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992). The First, Second, Sixth, Eighth, and Tenth
Circuits also apply de novo review to district court FOIA
summary judgment decisions.2
In reviewing our precedents, as well as those of our sister
circuits, we conclude there is no principled distinction to be
drawn between our usual summary judgment standard and the
standard to be applied in FOIA cases. We have noted the
oddity of this analytic difference: “By definition, summary
judgment may be granted only when there are no disputed
issues of material fact, and thus no factfinding by the district
court.” Yonemoto, 686 F.3d at 688 n.5 (citing Fed. R. Civ. P.
56(c)). Thus, where the district court has made a factual
determination, summary judgment cannot be appropriate.
In short, there is “no compelling reason to depart from a
pure de novo standard,” Halpern v. FBI, 181 F.3d 279, 287
(2d Cir. 1999), when reviewing FOIA summary judgment
decisions. We agree with the Second Circuit that de novo
review fits better with the policy and purpose of FOIA:
See Church of Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224,
228 (1st Cir. 1994); Halpern v. FBI, 181 F.3d 279, 287–88 (2d Cir. 1999);
Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1078 (6th Cir.
1998); Missouri ex rel. Garstang v. U.S. Dep’t of Interior, 297 F.3d 745,
749 (8th Cir. 2002); Sheet Metal Workers Int’l Ass’n, Local No. 9 v. U.S.
Air Force, 63 F.3d 994, 997 (10th Cir. 1995). The Third, Fourth, Fifth,
Seventh, and Eleventh Circuits appear to use the same “clearly erroneous”
standard that we have. See Lame v. U.S. Dep’t of Justice, 767 F.2d 66, 70
(3d Cir. 1985); Willard v. IRS, 776 F.2d 100, 104 (4th Cir. 1985);
Stephenson v. IRS, 629 F.2d 1140, 1144 (5th Cir. 1980); Antonelli v. DEA,
739 F.2d 302, 303 (7th Cir. 1984) (per curiam); Chilivis v. SEC, 673 F.2d
1205, 1210 (11th Cir. 1982).
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ALDF V. USFDA
In striking a balance between the incompatible
notions of disclosure and privacy when it
enacted FOIA in 1966, Congress
established—in the absence of one of that
law’s clearly delineated exemptions—a
general, firm philosophy of full agency
disclosure, and provided de novo review by
federal courts so that citizens and the press
could obtain agency information wrongfully
withheld. De novo review was deemed
essential to prevent courts reviewing agency
action from issuing a meaningless judicial
imprimatur on agency discretion.
Accordingly, we adopt a de novo standard of review for
summary judgment decisions in FOIA cases. Church of
Scientology, 611 F.2d at 743, and our other decisions to the
contrary are overruled.
Consistent with our usual procedure, if there are genuine
issues of material fact in a FOIA case, the district court
should proceed to a bench trial or adversary hearing.
Resolution of factual disputes should be through the usual
crucible of bench trial or hearing, with evidence subject to
scrutiny and witnesses subject to cross-examination. The
district court must issue findings of fact and conclusions of
law. Fed. R. Civ. P. 52(a)(1). Our review remains the same
as in all civil cases: we review the findings of fact for clear
error and the conclusions of law de novo. See OneBeacon
Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1096 (9th Cir.
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ALDF V. USFDA
We confine our en banc consideration to the question of
controlling circuit precedent. We decline as an en banc court
to reach any other issue presented by the parties. The threejudge panel that heard the appeal was bound by the standard
articulated in Church of Scientology and issued its opinion
based on that assumption. In issuing our order granting
rehearing en banc, we declared that the three-judge panel
opinion should not be cited as precedent by or to any court of
the Ninth Circuit. Animal Legal Def. Fund v. FDA, — F.3d
—, No. 13-17131, 2016 WL 4120696 (9th Cir. Aug. 3, 2016).
With this correction of our precedent, en banc proceedings
with respect to this case are terminated, and we return control
of the case to the three-judge panel. The panel will resolve
the merits issues in this case and will issue a new or an
All pending motions are DENIED as moot, without prejudice to
renewal before the three-judge panel.
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