UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-1678
HUMANE SOCIETY OF THE UNITED STATES; HUMANE SOCIETY INTERNATIONAL; CENTER FOR BIOLOGICAL DIVERSITY; BORN FREE USA,
Plaintiffs - Appellants,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:18-cv-01301-LO-JFA)
Argued: October 23, 2020 Decided: December 1, 2020
Before THACKER and QUATTLEBAUM, Circuit Judges, and Stephanie A. GALLAGHER, United States District Judge for the District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Neal David Mollen, Alexandria, Virginia, for Appellants. Catherine M. Yang, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees. ON BRIEF: Anna Frostic, THE HUMANE SOCIETY OF THE UNITED STATES, Washington, D.C.; Tanya Sanerib, CENTER FOR BIOLOGICAL DIVERSITY, Seattle, Washington; Charles A. Patrizia, Scott M. Flicker, Noah N. Simmons, PAUL HASTINGS LLP, Washington, D.C., for Appellants. G. Zachary Terwilliger, United States Attorney, R. Trent McCotter, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
This case is about the alleged failure of a government agency to post information in
a public online reading room. The Humane Society of the United States, Humane Society
International, Center for Biological Diversity, and Born Free USA (collectively,
“Appellants”) filed the instant amended complaint (“Amended Complaint”) against the
United States Fish and Wildlife Service (“FWS”) and the Department of the Interior
(collectively, “Appellees”). Appellants seek to compel FWS to post permit and application
documents created pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–
44, regarding the import of trophy heads, hides, tusks, or other parts of African lions or
elephants.
The Amended Complaint is premised on three alleged shortcomings by FWS: (1)
its failure to post in an online reading room electronic copies of documents Appellants
requested; (2) its “longstanding and ongoing refusal” to comply with disclosure
requirements; and (3) its failure to properly index its ESA documents. J.A. 36. 1 Appellants
allege that these shortcomings violate the Freedom of Information Act, 5 U.S.C. § 552
(“FOIA”) and the Administrative Procedure Act, 5 U.S.C. §§ 500, et seq. (“APA”).
The district court dismissed the Amended Complaint for two reasons. First, the
district court concluded Appellants’ claims regarding failure to post materials online were
moot because Appellants’ requests for posting had been fulfilled. Second, the district court
concluded Appellants failed to state a claim with regard to the prospective posting of
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
3 materials on an ongoing basis and the proper indexing of such materials. For the reasons
that follow, we affirm the dismissal of the Amended Complaint.
I.
A.
Legal Background
1.
Freedom of Information Act
FOIA places on federal agencies “both reactive and affirmative obligations to make
information available to the public.” Citizens for Responsibility & Ethics in Washington
v. U.S. Dep’t of Justice, 846 F.3d 1235, 1240 (D.C. Cir. 2017). Agencies are compelled to
publish certain categories of materials in the Federal Register, 5 U.S.C. § 552(a)(1); to
make other types of materials “available for public inspection in an electronic format,” id.
§ 552(a)(2); and to make all other records available upon request from a member of the
public, id. § 552(a)(3). Under the more familiar provision of Section 552(a)(3), federal
agencies must release records (with certain exceptions) upon a valid and sufficiently
specific request by a member of the public. See id. § 552(a)(3)(A); Prison Legal News v.
Samuels, 787 F.3d 1142, 1146 (D.C. Cir. 2015).
In subsection (a)(2), FOIA also imposes an affirmative duty on agencies to “make
available for public inspection in an electronic format” the following five classes of
records:
(A) “final opinions, . . . as well as orders, made in the adjudication of cases,” § 552(a)(2)(A);
4 (B) “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,” § 552(a)(2)(B);
(C) “administrative staff manuals and instructions to staff that affect a member of the public,” § 552(a)(2)(C);
(D) “copies of all records, regardless of form or format” that
(i) “have been released to any person” pursuant to § 552(a)(3); and
(ii) “that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records” or “that have been requested 3 or more times,” § 552(a)(2)(D); and
(E) “a general index of the records” posted pursuant to subparagraph (D), § 552(a)(2)(E).
These provisions are known as FOIA’s “reading room” provisions and are also sometimes
collectively referred to as “eFOIA.” See, e.g., Tax Analysts v. I.R.S., 117 F.3d 607, 609
(D.C. Cir. 1997); Gov’t Accountability Project v. U.S. Dep’t of Health & Human Servs.,
568 F. Supp. 2d 55, 58 (D.D.C. 2008). “If a document does not fall within one of these
categories, then the agency has no affirmative obligation to post the document.” PETA v.
U.S. Dep’t of Agriculture, 285 F. Supp. 3d 307, 314 (D.D.C. 2018), aff’d in part, rev’d in
part on other grounds, 918 F.3d 151 (D.C. Cir. 2019).
Upon a request for records pursuant to subsections (a)(2) or (a)(3), the agency has
20 days (absent unusual circumstances) to respond. See 5 U.S.C. § 552(a)(6)(A). If the
agency decides to comply with the request, it must make the records “promptly available
to such person making such request.” Id. § 552(a)(6)(C)(i).
5 If a requester is not satisfied with the agency’s response to its requests, it may file a
complaint in “the district court of the United States in the district in which the complainant
resides . . . or in which the agency records are situated.” 5 U.S.C. § 552(a)(4)(B). In such
a case, “the burden is on the agency to sustain its action,” but “a court shall accord
substantial weight to an affidavit of an agency concerning the agency’s determination as to
technical feasibility [of disclosing the documents].” Id. The district court “has jurisdiction
to enjoin the agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant.” Id.
2.
Endangered Species Act
Generally, hunters wishing to import into the United States certain trophy animals
from Africa, including African elephants and lions, must first submit an application to, and
obtain an import permit from, FWS. The application requires information such as
demographic details about the applicant, where the animal will be hunted, which safari or
outfitting company will be used, and details about the fees that will be paid for the hunt.
Once an application is submitted, FWS makes certain determinations on a case-by-
case basis, as required by two laws and their corresponding regulations: the ESA, 16 U.S.C.
§§ 1531–44, and the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (“CITES”), Mar. 3, 1973, 27 U.S.T. 1087; see 16 U.S.C. § 1538(c)(1)
(incorporating CITES into domestic law through the ESA). These laws and their
regulations allow FWS to issue permits to import trophies of certain African elephants and
lions upon a determination that “the killing of the trophy animal will enhance the survival
6 of the species” (known as “enhancement determinations”), 50 C.F.R. § 17.40(e)(6)(i)(B),
and that trade in the species is “non-detrimental” to the species (known as “non-detriment
determinations”), id. § 23.61(a); see also 50 C.F.R. § 17.32(a) (requirements for permits
generally).
B.
Procedural History
Complaint and Amended Complaint
According to the Amended Complaint, on May 18, 2018, Appellants sent FWS a
letter requesting that FWS post in the agency’s online FOIA reading room the following:
(1) “copies of all ESA permits issued since January 1, 2016 or in the future for the import
of trophies of African elephant or threatened African lions”; (2) “all permit application
materials for such permits (prior to permit issuance or denial moving forward)”; and (3)
“all enhancement findings supporting the issuance or denial of such permits.” J.A. 56–57.
According to Appellants, “[i]n response, FWS neither posted the requested material online
nor provided any substantive explanation of its refusal to do so.” Id. at 57.
On October 18, 2018, Appellants filed the initial complaint in this case, asking for
the requested FWS documents to be posted pursuant to eFOIA’s online reading room
posting requirements, 5 U.S.C. § 552(a)(2). Appellees filed motions to dismiss that
complaint on January 4, 2019. In the motions, Appellees pointed out that some of the
records at issue were not within eFOIA’s scope because they had not been both requested
three times and actually released to anyone pursuant to § 552(a)(2)(D). See Mem. Supp.
7 Mot. Dismiss at 16, Humane Soc’y v. U.S. Fish & Wildlife Serv., No. 1:18-cv-1301 (E.D.
Va. filed Jan. 4, 2019), ECF No. 21.
According to Appellants, “[t]o forestall expensive discovery and an unnecessary
factual dispute about the breadth and number of Section 552(a)(3) requests made by
[Appellants] and others since 2016,” they responded “by serving new, gap-filling Section
552(a)(3) requests, encompassing all relevant records for the entire period from 2016 to
the present.” Appellants’ Br. 49 (footnote omitted). Appellants called this a “belt-and-
suspenders” approach to obtain posting of the requested records. Id. Appellees, in contrast,
characterize Appellants’ new requests as being made to “cover the flaws in their prior
submissions.” Appellees’ Br. 12. Either way, it is undisputed that after the initial
complaint was filed, Appellants made more FOIA requests under subsection (a)(3) in order
to invoke the provisions of eFOIA requiring that the records be “requested 3 or more times”
before they must be posted in the reading room. § 552(a)(2)(D)(ii).
After these requests were made, Appellants filed the Amended Complaint on
January 24, 2019, claiming that Appellees’ failure to post the requested permitting
materials online violates eFOIA and the APA. This claim is premised on the initial FOIA
requests, the new “belt-and-suspenders” requests, and is purportedly supported by the
following allegations:
(1) FWS exhibits an “ongoing pattern and practice of failing to comply with eFOIA by not proactively posting copies of all African elephant . . . or African lion . . . trophy import permits or associated findings issued after January 22, 2016 in their online library”;
8 (2) FWS has failed to disclose in its online library: “copies of all ESA or CITES permits issued since January 1, 2016 or proactively for the import of trophies of African elephant . . . or African lions . . .”; “all permit application materials for such permits (prior to permit issuance or denial for those not yet issued or denied)”; and “all enhancement and non-detriment findings supporting the issuance or denial of such permits.” According to Appellants, “[t]hese three categories of records have been requested far more than three times and have been released in the past pursuant to FOIA requests”; and
(3) FWS has “only posted a few relevant existing records, and the agency has failed to provide an index or guide to these records as required under eFOIA.”
J.A. 63–64. Appellants request the following relief:
• A declaration that FWS “violated FOIA by failing to post in FWS’ online reading room[] ESA and CITES permit applications and related materials pertaining to trophy imports of threatened African elephants . . . or lions . . . submitted or created on or after January 1, 2016, records of decision for such permits, and enhancement and non-detriment findings supporting the issuance or denial of such permits, and that [FWS] has otherwise failed to comply with its FOIA obligations.”;
• An injunction ordering FWS “immediately to make available via FWS’ online reading room all existing records related to ESA and CITES permit application materials pertaining to trophy imports of threatened African elephants . . . or lions . . . submitted on or after January 1, 2016, records of decision for such permits, and enhancement and non-detriment findings supporting the issuance or denial of such permits”;
• An injunction ordering FWS to make ESA and CITES records “available [on an ongoing basis] electronically and in a timely manner after the receipt or creation of such records via FWS’ online reading room, consistent with the eFOIA provision”; and
9 • An injunction ordering FWS “to provide an index or guide to the records it has posted and hereafter posts online pursuant to eFOIA.”
J.A. 65–66.
Appellants aver that FWS’s “failure to comply with eFOIA harms [Appellants’] and
their members’ interests in ensuring that the Endangered Species Act and CITES
requirements for importing threatened elephant and lion hunting trophies are strictly
implemented.” J.A. 64. Therefore, Appellants brought their claim pursuant to FOIA, 5
U.S.C. § 552(a)(4)(B). But, alternatively, Appellants claim the APA provides judicial
review of “every final agency action for which there is no other adequate remedy in a
court.” J.A. 64 (quoting 5 U.S.C. § 706). Thus, “[i]f . . . the judicial review provisions of
the FOIA are unavailable or inadequate to reach [Appellees’] violations of law fully, the
APA provides that remedial authorization.” Id.
District Court’s Dismissal
On February 22, 2019, Appellees filed two motions to dismiss the Amended
Complaint: one based on mootness pursuant to Federal Rule of Civil Procedure 12(b)(1),
and one based on failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). With its briefing, Appellees submitted two sworn declarations confirming that
FWS had performed multiple searches and that all requested records from January 1, 2016,
to February 20, 2019, had been posted online. See J.A. 84–85 (February 22, 2019
Declaration of Connie Rose, FWS FOIA officer), 216–17 (April 2, 2019 Declaration of
Cathy Willis, FWS FOIA officer).
10 On May 16, 2019, the district court granted Appellees’ motions and dismissed the
Amended Complaint. First, the district court concluded the claim based on requests for
existing records was moot and thus, it lacked jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. In this regard, the district court made a factual finding
that, after the Amended Complaint was filed, Appellees “fulfilled [Appellants’] FOIA
requests” for the permits issued from January 1, 2016, to the time of the decision. J.A. 250.
The district court also addressed Appellants’ argument that “despite the release of
the records,” Appellees’ actions “amount[ed] to voluntary cessation” that would “not moot
the case.” J.A. 252. It rejected this voluntary cessation argument, explaining Appellants
submitted the belt-and-suspenders requests for applications and permits dating back to
January 1, 2016, after litigation had begun, and Appellees “complied with [those]
requests.” Id. Thus, the doctrine of voluntary cessation does not apply because it was
Appellants’ “own doing” that “sap[ped] the controversy of vitality.” Id. (quoting City News
& Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.l (2001)).
Second, the district court dismissed the proactive posting claim for failure to state a
claim pursuant to Rule 12(b)(6). It rejected Appellants’ argument that FWS was required
to proactively post certain documents to the FWS reading room, explaining, “[Section]
552(a)(2)(D) does not require agencies to post records on a rolling basis into the future.”
J.A. 253. The district court concluded that language of the statute “indicates [the disclosure
requirement] is referring to information that already exists, not information that will be
created in the future.” Id.
11 Finally, in a footnote, the district court addressed the claim regarding FWS’s
allegedly insufficient indexing system, explaining that there was no case law on the topic,
and it deemed organizing records “by animals,” as FWS did here, a sufficient “general
index” pursuant to FOIA. J.A. 252 n.1.
The district court did not address Appellants’ APA arguments and gave no
explanation for its failure to do so.
II.
We review mootness questions de novo. See Porter v. Clarke, 852 F.3d 358, 363
(4th Cir. 2017). “We review the district court’s dismissal of [a] complaint de novo,
accepting as true all of the factual allegations contained in the complaint and drawing all
reasonable inferences in favor of the plaintiff.” Wright v. North Carolina, 787 F.3d 256,
263 (4th Cir. 2015) (internal quotation marks omitted).
III.
As mentioned, the Amended Complaint is based on three alleged shortcomings of
FWS: (1) its failure to post in an online reading room electronic copies of documents
Appellants requested; (2) its “longstanding and ongoing refusal” to comply with disclosure
requirements; and (3) its failure to properly index its ESA documents. J.A. 36. We address
each in turn.
Alleged Failure to Post Records
We first address the district court’s conclusion that the claims regarding FWS’s
failure to post certain records is now moot.
12 1.
“The doctrine of mootness constitutes a part of the constitutional limits of federal
court jurisdiction,” Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (alterations and
internal quotation marks omitted), which extends only to actual cases or controversies, U.S.
Const. art. III, § 2. When “a case or controversy ceases to exist -- either due to a change
in the facts or the law -- the litigation is moot, and the court’s subject matter jurisdiction
ceases to exist also.” Porter, 852 F.3d at 363 (internal quotation marks omitted). Put
another way, “a case is moot when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486,
496 (1969); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)
(“Mootness has been described as ‘the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).’” (quoting U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980))).
However, there is a “well-recognized exception to the mootness doctrine holding
that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.’” Porter, 852 F.3d at 363
(quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)); see also
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (“[V]oluntary cessation of
allegedly illegal conduct does not deprive the tribunal of power to hear and determine the
case, i.e., does not make the case moot.”).
13 The voluntary cessation exception “traces to the principle that a party should not be
able to evade judicial review, or to defeat a judgment, by temporarily altering questionable
behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001).
Accordingly, the exception seeks to prevent “a manipulative litigant immunizing itself
from suit indefinitely, altering its behavior long enough to secure a dismissal and then
reinstating it immediately after.” Porter, 852 F.3d at 364 (internal quotation marks
omitted); see also Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)
(“The voluntary cessation of challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resumption of the challenged conduct as
soon as the case is dismissed.”). Thus, “a defendant claiming that its voluntary compliance
moots a case bears the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.” Porter, 852 F.3d at 364
(internal quotation marks omitted).
Appellants argue a live controversy still exists, maintaining that there remains “a
factual dispute regarding FWS’s claim that it has posted to its website all of the documents
it currently has.” Appellants’ Br. 45–46. In addition, Appellants contend that “[e]ven as
to records FWS has already posted, the agency’s frenzied, post-litigation production-and-
posting effort has not mooted the case” because a “‘defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the legality
of the practice.’” Id. at 14 (quoting City of Mesquite, 455 U.S. at 289).
14 a.
Issues of Fact
Appellees contend this case is moot because Appellants “received their requested
relief: the trophy records back to 2016, organized by general index, were posted online in
FWS’s reading room” and what Appellants seek is “an advisory opinion about how to
interpret the reading-room provisions.” Appellees’ Br. 16, 17. Appellants, however,
contend the case is not moot because issues of fact remain as to whether all the records in
FWS’s possession have actually been posted. Thus, crucial to the mootness question is
whether the records Appellants requested to be posted have, in fact, been posted. This
issue can be resolved as a matter of law based on burdens and presumptions set forth in
applicable law.
“When, as here, a defendant challenges the existence of subject matter jurisdiction
in fact, the plaintiff bears the burden of proving the truth of such facts by a preponderance
of the evidence.” United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir.
2009). Coupled with Appellants’ burden is the idea that “declarations by (or on behalf of)
government officials [receive] somewhat higher credence than statements made by private
parties” in FOIA cases, lending such declarations a “presumption of legitimacy.” PETA v.
U.S. Dep’t of Agriculture, 918 F.3d 151, 157 (D.C. Cir. 2019). This presumption can only
be refuted by “clear evidence to the contrary.” Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 174 (2004). “[T]he [FOIA] requester must produce evidence that would
warrant a belief by a reasonable person that the alleged Government impropriety might
have occurred.” Id.
15 Finally, the district court made a finding that Appellees “fulfilled [Appellants’]
FOIA requests” for the permits issued from January 1, 2016, to the date of that decision.
J.A. 250. “On appeal from a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1), we review the district court’s factual findings with respect to jurisdiction for clear
error . . . .” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal
quotation marks omitted).
In short, Appellants have not overcome these burdens.
First, Appellants rely on a binder they took to the motion to dismiss hearing, “so
that the court could see for itself which records had not been posted.” Appellants’ Br. 53.
According to Appellants, the binder contained records not posted online but nonetheless
turned over to Appellants. Following is an excerpt from that hearing:
[Appellants’ Counsel:] Your Honor, I have got a binder here of 90-some documents, or 89 documents I think it is, that were produced to us in response to our FOIA requests, but were not loaded up on the Web site. We’re happy to provide them to the Court. It can do its own investigation unaided by an index, and I can tell you that it is [in]credibly time-consuming.
J.A. 225. Appellees’ counsel, in response, remarked that those documents were disclosed
“in response to another batch of requests [Appellants] submitted a few weeks ago asking
for January to March 2019 documents.” Id. at 244. As the district court was closing the
hearing, Appellants’ counsel asked, “Your honor, is there any purpose in leaving this [the
binder] with your staff?” to which the district court replied, “No, but it was not refuted by
[Appellees’ counsel] that that’s what the contents were, as you stated.” Id. at 248. But the
district court made no specific finding and no firm resolution as to the contents of the
16 binder, and this vague aside to Appellants’ counsel is insufficient grounds upon which to
find clear error, particularly given Appellees’ sworn declarations and Appellants’ burden
to establish jurisdiction in the first place.
Importantly, Appellants have not alleged (and do not argue on appeal) that the
requests they made and the documents turned over in the binder meet the requirements for
posting to the eFOIA reading room. And to the extent Appellants fault Appellees for
posting materials in dribs and drabs, they have also admitted that some of these disclosures
were in response to their own successive requests made after the filing of the initial
complaint. See, e.g., J.A. 246–47 (Appellants’ attorney: “It’s true that a great many of the
documents that were posted last night [before the motion to dismiss hearing] were
responsive to a request that we made in March. So full credit to the Government on that.”).
And in their opening brief, Appellants merely claim that they “represent[]” to the court that
as of the time of the filing of the brief, the requested records in the binder had not been
posted online. Appellants’ Br. 9 n.10. They also fall back on the inference that, if FWS
has failed to post records before, they probably failed to post records again.
But it is well established that mere speculation or inferences, without more, cannot
even create a genuine issue of material fact, see Barwick v. Celotex Corp., 736 F.2d 946,
963 (4th Cir. 1984), let alone provide grounds for finding the requisite clear error here.
Appellants therefore do not successfully challenge the district court’s conclusion that the
aspect of the Amended Complaint dealing with past actions is moot.
For these reasons, Appellants have not carried their burden to demonstrate “clear
evidence” that any of their requests were not posted in the reading room, nor have they
17 demonstrated the district court clearly erred in so finding. Favish, 541 U.S. at 174; see
Burn Pit Litig., 744 F.3d at 333. Therefore, we must accept that Appellees have posted
online all of Appellees’ requested documents, rendering any claim with regard to past
requests for online posting to be moot.
Voluntary Cessation
Appellants next contend that, even if the records have been posted, the voluntary
cessation exception to the mootness doctrine applies. Appellants contend the district
court’s decision -- that Appellants’ own actions in re-requesting the documents after the
initial complaint was filed led to mootness -- “represents a confused application of the
voluntary cessation cases.” Appellants’ Br. 50. Rather, they maintain they “have
surrendered nothing. After years of delay, FWS grudgingly produced and posted some
documents, but only because it had been sued,” and the agency “has not promised to refrain
from similar statutory violations in the future.” Id. at 51–52.
In response, Appellees rely on PETA v. United States Department of Agriculture,
which held that the voluntary cessation doctrine could be defeated “by an agency
declaration asserting an intention not to remove the relevant documents from the agency’s
web site in the future,” Appellees’ Br. 24 (citing 918 F.3d at 159), and Appellees produced
such a document, see J.A. 217 (FOIA officer declaring, “FWS has no intention of removing
the [ESA] Applications, Permits, and Findings concerning lions and elephant trophies from
its online reading room in the future”). In any event, Appellees contend, the voluntary
cessation theory “makes no sense in the FOIA context because FWS already turned over
18 the records to [Appellants] and cannot ‘cease’ that activity in the future.” Appellees’ Br.
26. In other words, there is no way Appellees can “resum[e] the challenged conduct” of
failing to post records when they have already posted the records. Id. at 27 (quoting Knox,
567 U.S. at 307).
With regard to the previously requested and posted documents, this case is an ill fit
for the voluntary cessation doctrine. For one thing, the district court was correct that
Appellants’ own actions of re-requesting documents and asking that they be posted
effectively mooted their claims. Because Appellees “complied with [those] requests,”
Appellants’ “own doing” “sap[ped] the controversy of vitality.” City News, 531 U.S. at
284 n.l.
Furthermore, the voluntary cessation exception seeks to prevent “a manipulative
litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure
a dismissal and then reinstating it immediately after.” Porter, 852 F.3d at 364 (internal
quotation marks omitted). But the challenged action here is FWS’s failure to post requested
documents, and those documents have now been posted. Theoretically, if FWS “alter[ed]
its behavior” by posting the documents and swearing that it would not remove those
documents (which FWS did), there is no way it could “reinstat[e]” that behavior afterwards.
Id. Indeed, Appellants do not contend that FWS removed or will remove records it already
posted. For these reasons, the voluntary cessation doctrine does not apply, and we affirm
the dismissal of Appellants’ claims based on FWS’s alleged failure to post material to its
reading room.
19 B.
Alleged Longstanding and Ongoing Refusal to Post
We now turn to the Amended Complaint’s requests for injunctive relief based on an
alleged “longstanding and ongoing refusal” of FWS to post documents to its reading room.
J.A. 36. Central to their requested relief is Appellants’ view that Appellees believe they
have “no obligation to post the opinions, orders, or frequently requested documents it
generates proactively [and] the lawfulness of that position must be determined.”
Appellants’ Br. 45. Appellants ask the court to order Appellees to “make the [elephant and
lion permit] records” available “on an ongoing basis” “electronically and in a timely
manner after the receipt or creation of such records.” J.A. 65 (emphasis supplied).
“[A] Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded
allegations in the plaintiff’s complaint as true and drawing all reasonable factual inferences
from those facts in the plaintiff’s favor, it appears certain that the plaintiff cannot prove
any set of facts in support of his claim entitling him to relief.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Even if a cause of action exists, a
“complaint might nevertheless be dismissed under Rule 12(b)(6) unless it can be
determined that judicial relief is available.” Davis v. Passman, 442 U.S. 228, 244 (1979).
In this case, FOIA does not entitle Appellants to the prospective relief they seek as to
documents not yet in existence. FOIA provides that the district court “has 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). As
the district court observed, the language of the statute “indicates [the disclosure
20 requirement] is referring to information that already exists, not information that will be
created in the future.” J.A. 253. Even the case relied on by Appellants for this proposition
demonstrates this point. In Animal Legal Defense Fund v. United States Department of
Agriculture, the Ninth Circuit concluded that Section 552(a)(4)(B) “cloaks district courts
with the authority to order an agency to post records in an online reading room,” and
“authorizes district courts to stop the agency from holding back records it has a duty to
make available, which includes requiring an agency to post § 552(a)(2) documents online.”
935 F.3d 858, 869 (9th Cir. 2019). However, that case dealt with existing agency records
that had been removed from online reading rooms and a representation from an agency on
appeal that “it [would] no longer post” certain of those records -- not nebulous records that
have not yet come to fruition. Id. at 864. And we have stated that courts are “woefully ill-
suited . . . to adjudicate generalized grievances asking us to improve an agency’s
performance or operations.” City of New York v. U.S. Dep’t of Def., 913 F.3d 423, 431
(4th Cir. 2019).
By our narrow decision, we do not hold that Appellants can never receive injunctive
relief pursuant to Section 552(a)(4)(B). But where all Appellants’ eFOIA requests have
been satisfied (per the district court’s finding), and the prospective relief sought is with
regard to documents not yet created, we fail to see how FOIA provides any “entitle[ment]
. . . to relief.” Edwards, 178 F.3d at 244. Therefore, we affirm the district court’s Rule
12(b)(6) dismissal.
21 C.
Allegedly Improper Indexing
Finally, Appellants’ claim that FWS improperly indexed its records suffers from the
same fatal flaw as their claim for prospective relief. There is no reasonable reading of the
remedial provision that demonstrates entitlement to relief based upon the sufficiency of a
FOIA index. In any event, the statute requires a “general index,” § 552(a)(2)(E), which it
does not define. The records in this case are delineated by species, and Appellants cite no
persuasive authority that this is somehow insufficient. Therefore, this claim fails to state a
plausible claim for relief as well.
D.
The Administrative Procedures Act
Appellants contend that if no other source of remedy exists in FOIA, then the APA
provides for review in situations “for which there is no other adequate remedy in a court.”
5 U.S.C. § 704. The district court did not address the APA in its dismissal order, but we
are compelled to affirm dismissal under that body of law as well.
In this court’s recent decision in City of New York v. United States Department of
Defense, major cities across the country filed suit against the Department of Defense
(“DOD”) for its failure to provide records in a timely and organized manner to the National
Instant Criminal Background Check System. 913 F.3d at 426. The cities asked the district
court to compel “more thorough compliance” by the DOD. See id. at 427. We affirmed
the dismissal of the claim, rejecting the notion that the “APA authorizes a recipient of
government information to initiate a private action to compel governmental conduct that
22 might improve that information’s accuracy or comprehensiveness.” Id. at 430. And “there
is simply no basis in the APA’s text for such a broad incursion into internal agency
management.” Id. In short, the city plaintiffs failed to “identify specific and discrete
governmental conduct” for review, as provided in the APA, and rather, “launch[ed] a broad
programmatic attack on the government’s operations.” Id. at 431 (internal quotation marks
omitted).
So too here. Because the records Appellants requested have been posted, Appellants
are left with a challenge to the internal management of FWS and how and when it posts
trophy records -- or even more questionable -- how they may or may not manage such
information in the future. Therefore, any claims made pursuant to the APA fall short.
IV.
For the foregoing reasons, we affirm the district court’s dismissal of the Amended
Complaint.
AFFIRMED