Animal Legal Defense Fund v. U.S. Food & Drug Admin., 13-17131

839 F.3d 750 (Mem)

Animal Legal Defense Fund, Plaintiff–Appellant,

v.U.S. Food & Drug Administration, Defendant–Appellee.

No. 13-17131

United States Court of Appeals, Ninth Circuit.

Filed September 30, 2016

Monte M.F. Cooper, Derek F. Knerr, and Scott Lindlaw, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California, for Plaintiff–Appellant.

Lindsey Powell and Michael S. Raab, Attorneys, Appellate Staff, 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.

Before: Susan P. Graber, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges.

OPINION

PER CURIAM:

In Animal Legal Defense Fund v. FDA , No. 13–17131, ––– F.3d ––––, 2016 WL 4578362 (9th Cir. Sept. 2, 2016) (en banc) (per curiam), the en banc court overruled our earlier precedents on the applicable standard of review in Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, cases decided on summary judgment. The court held that the usual summary judgment standard applies, so we must review the district court's decision de novo. Accordingly, on summary judgment, “if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing.” Animal Legal Def. Fund , ––– F.3d at ––––, 2016 WL 4578362, at *2.

As we noted in our earlier opinion, Animal Legal Defense Fund v. FDA , 819 F.3d 1102, 1108–09 (9th Cir. 2016), the parties submitted competing declarations concerning the potential competitive effect of releasing egg-production information. In a per curiam concurrence, we also observed that, “if ordinary principles applied, summary judgment would not be appropriate because the record contains a disputed issue of material fact.” Id. at 1112. Following the en banc court's decision, those ordinary principles now control this case. Applying the usual summary judgment standard, we conclude that there is a genuine issue...