Judy Shepard v. Pete Geren

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3205
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Central Platte Natural Resources *
District, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
United States Department of *
Agriculture; Farm Service Agency, *
*
Appellees. *
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Submitted: May 11, 2011
Filed: June 27, 2011
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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
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MURPHY, Circuit Judge.
Central Platte Natural Resources District (Central Platte) sought disclosure of
geospatial data from the United States Department of Agriculture and the Farm
Service Agency (collectively the USDA) under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, and the Administrative Procedure Act (APA), 5 U.S.C. §§
701 et seq. The district court dismissed Central Platte's APA claim on the ground1
The Honorable Warren K. Urbom, United States District Judge for the District1
of Nebraska.

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that it already had an adequate remedy and granted summary judgment on its FOIA
claim on the ground that the USDA was not required to disclose the requested
geospatial data. Central Platte now appeals the district court's rulings. We affirm.
I.
Central Platte is a political subdivision of the State of Nebraska which is
responsible for administering various programs related to the state's natural resources.
A Nebraska statute authorizes Central Platte to cooperate with agencies, such as the
USDA, to carry out projects for the benefit of the district. Neb. Rev. Stat. § 2-3235.
To that end Central Platte has entered into several agreements with USDA agencies.
For example, Central Platte cooperates with the USDA in its Conservation Reserve
Enhancement Program which seeks to restore wildlife habitat and protect
environmentally sensitive land.
Under a cooperative agreement with a USDA agency, Central Platte was
specifically obligated to provide the agency with a specialist to help it develop a
Geographic Information System (GIS). GIS is a computer system that assembles,
stores, manipulates, and displays geospatial information. GIS data may be used to
produce flood maps, conduct the census, and respond to natural hazards. The USDA
informally shared the GIS data with Central Platte for a period of time, but stopped
in 2005 because the data identifies individual farm owners, operators, borrowers, and
other agricultural producers.
In July 2008, Central Platte requested that the USDA release GIS data related
to farmland in eleven Nebraska counties. It brought its request under the federal
Privacy Act, which requires agencies to withhold private information about
individuals unless the data falls within a published "routine use." 5 U.S.C. § 552a.
The USDA can disclose the requested GIS data pursuant to twenty five published
routine uses. Revision to the Privacy Act System of Records Notice, 72 Fed. Reg.
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70559, 70563 (Dec. 12, 2007). Central Platte specifically cited two of the USDA's
routine use exceptions in support of its request. In August 2008, before the USDA
had responded to the Privacy Act request, Central Platte submitted a FOIA request
for the same data.
In making both requests Central Platte acknowledged that the 2008 Farm Bill,
codified at 7 U.S.C. § 8791, prohibits the disclosure of "geospatial information."
Central Platte cited an exception in the statute, which provides that an agency "may
release or disclose the information" to those "working in cooperation with the
Secretary in any Department program . . . when providing technical or financial
assistance with respect to the agricultural operation, agricultural land, or farming or
conservation practices . . . ." 7 U.S.C. § 8791(3)(A)(i). Central Platte contended that
it qualified for that exception because it cooperates with the USDA on many
endeavors.
The USDA denied Central Platte's FOIA request in a June 2009 letter. It
explained that the 2008 Farm Bill exempted the USDA from disclosing the GIS data
and that Central Platte did not qualify for the cooperator exception because it had not
"met the criteria established for certification as an organization that is working in
cooperation with the USDA on a Department program." The letter did not respond
to Central Platte's Privacy Act request.
Central Platte timely appealed the FOIA decision in July 2009. While still
awaiting a response, Central Platte sued the USDA in federal court in September
2009, alleging that the refusal to release the GIS data violated FOIA. The USDA then
denied Central Platte's appeal of the agency's FOIA determination in November 2009.
It explained that it would not release the GIS data under FOIA because Central Platte
did not need the information to fulfill its role as a cooperator. The USDA also stated
that Central Platte could not obtain the GIS data under the Privacy Act because the
cited routine uses were inapplicable. As a result Central Platte amended its
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complaint, alleging that the USDA violated the APA in refusing to release the data
under the Privacy Act's routine use exceptions.
The district court granted the USDA's motion for summary judgment on
Central Platte's FOIA claim, holding that the department was not required to disclose
the requested GIS data. The district court also dismissed Central Platte's APA claim,
finding that the claim was barred because FOIA provided Central Platte with an
adequate remedy. Central Platte appeals those rulings.
II.
We review de novo a district court's grant of summary judgment, viewing all
facts and making all reasonable inferences in the light most favorable to the
nonmoving party. Comcast of Ill. X v. Multi-Vision Elecs., Inc., 491 F.3d 938, 943
(8th Cir. 2007). Summary judgment is appropriate where no genuine issues of
material fact exist. Pendleton v. QuikTrip Corp., 567 F.3d 988, 992 (8th Cir. 2009).
FOIA generally mandates broad disclosure of government records. See 5
U.S.C. § 552; C.I.A. v. Sims, 471 U.S. 159, 166 (1985). Congress has recognized,
however, that some information must remain confidential and has created nine
exceptions to FOIA's general disclosure principles. 5 U.S.C. § 552(b). Relevant here
is FOIA exception 3 which permits nondisclosure if another statute specifically
exempts the information from disclosure and "refers to particular types of matters to
be withheld . . . ." 5 U.S.C. § 552(b)(3)(A)(ii).
When determining whether FOIA exemption 3 is applicable, the court first
decides if a statute is a withholding statute and then determines "whether the
information sought after falls within the boundaries of the non-disclosure statute."
Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 332 (D.C.
Cir. 1987) (citation omitted). If a statute qualifies for FOIA exemption 3, then the
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agency need not disclose the requested data. Id. at 333. Exemption 3 is different
from other FOIA exemptions because "its applicability depends less on the detailed
factual contents of specific documents; the sole issue for decision is the existence of
a relevant statute and the inclusion of withheld material within that statute's
coverage." Goland v. C.I.A., 607 F.2d 339, 350 (D.C. Cir. 1978).
Generally a district court reviews FOIA complaints "de novo," 5 U.S.C. §
552(a)(4)(B), but the statutory de novo standard has been modified in FOIA
exemption 3 cases. In such cases, a district court reviews de novo whether the statute
qualifies for FOIA exemption 3 and whether the requested information at least
arguably falls within the ambit of the withholding statute. Church of Scientology Int'l
v. U.S. Dep't of Justice, 30 F.3d 224, 235 (1st Cir. 1994). If the district court
determines that these two requirements are met, then "FOIA de novo review normally
ends." Id. (citation omitted).
Limiting the course of de novo review in FOIA exemption 3 cases has not been
the universal practice. For instance, the court in Long v. I.R.S.,742 F.2d 1173, 1181
(9th Cir. 1984), called it "inconceivable" that Congress intended such "an irrational
construction" in FOIA exemption 3 cases. Nevertheless, it has been limited in
circumstances where a withholding statute has given an agency discretion to disclose
information that would otherwise be withheld, as opposed to discretion to withhold
data that would otherwise be available. For example, in Ass'n of Retired Railroad
Workers, Inc., the district court only reviewed de novo whether a relevant
withholding statue existed and whether the requested data fell within that statute. 830
F.2d at 332. In finding the limited de novo review appropriate, the D.C. Circuit
specifically distinguished the Ninth Circuit's Long decision, holding that the "statute
at issue in Long stated criteria by which disclosure could be defeated . . . [and Ass'n
of Retired Railroad Workers, Inc.], by contrast turns on a provision that gives an
agency discretion to disclose." Id. at 336.
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This limited de novo review may define the entire scope of review in FOIA
exemption 3 cases. The D.C. Circuit, in Ass'n of Retired Railroad Workers, Inc.
suggested that "[n]o more was required" after a district court completed its de novo
review, 830 F.2d at 337, but also stated that it "[did] not rule" on whether that would
always complete "the requisite scope of review in Exemption 3 cases." Id. at 336.
The First Circuit has decided, however, that any additional review of an agency's
decision should be done "under more deferential, administrative law standards" which
decides only whether the agency's action was arbitrary and capricious. Aronson v.
IRS, 973 F.2d 962, 967 (1st Cir. 1992).
The district court in this case determined that the 2008 Farm Bill qualified as
a withholding statute under FOIA exemption 3 so that the USDA was not required to
disclose the requested GIS data. In making that determination, the district court
employed a "hybrid" standard of review, reviewing de novo whether the 2008 Farm
Bill qualified as a withholding statute and then reviewing for abuse of discretion the
agency's determination not to disclose the requested data. The district court further
concluded that no issues of material fact remained. Central Platte contends that the
district court erred in those determinations.
We conclude that the district court did not err in deciding that the USDA was
not required to disclose the requested GIS data. The district court first properly
determined, after de novo review, that the 2008 Farm Bill is a withholding statute for
purposes of FOIA exemption 3. The statute specifically contains a "prohibition" on
the disclose of "geospatial data . . . about agricultural land or operations . . . ." 7
U.S.C. § 8791(b)(2)(B); see also Ctr. for Biological Diversity v. USDA, 626 F.3d
1113, 1116 (9th Cir. 2010) (holding that 7 U.S.C. § 8791 satisfies the requirements
of a withholding statute under FOIA exemption 3). The parties agree that the 2008
Farm Bill is a withholding statute within the meaning of FOIA exemption 3 and that
the requested GIS data fell within it.
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The district court's de novo review then properly ended. While courts disagree
about limiting de novo review in FOIA exemption 3 cases, we conclude that the
district court's limited de novo review was appropriate here because there is no
dispute that the 2008 Farm Bill qualified for FOIA exemption 3 status or that the GIS
data fell within the statute. Furthermore, the 2008 Farm Bill, like the statute at issue
in Ass'n of Retired Railroad Workers, Inc., presumes that GIS data should not be
disclosed but then provides that the agency "may release or disclose the information"
to cooperators under limited circumstances. 7 U.S.C. § 8791(2)–(3)(A)(i). The
district court then went on to consider whether the USDA's decision not to disclose
the data under the limited cooperator exception in the 2008 Farm Bill was arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law.
Like the court in Ass'n of Retired Railroad Workers, Inc., we need not
undertake whether the district court's additional layer of review was in error because
it is clear that limited de novo review "can satisfy FOIA" in this case. 830 F.2d at
336. Congress expressly prohibited the disclosure of the GIS data in the 2008 Farm
Bill and Central Platte's request fell within that prohibition. The district court's de
novo review of these findings was all that was required, and it did not err in
concluding that the USDA was not required to disclose the GIS data.
III.
Central Platte also appeals the district court's dismissal of its APA claim. We
review de novo the district court's grant of a motion to dismiss. Blankenship v. USA
Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). In conducting our review, we accept
all facts in the complaint as true and grant all reasonable inferences in favor of the
nonmoving party. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009).
Under the APA an entity aggrieved by final agency action is entitled to judicial
review. 5 U.S.C. § 702. While a presumption exists to permit judicial review of
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agency decisions, the APA only allows review where there exists "no other adequate
remedy in a court." 5 U.S.C. § 704; Brem-Air Disposal v. Cohen, 156 F.3d 1002,
1004 (9th Cir. 1998) (holding that a court lacks jurisdiction over an APA claim where
Congress has provided an adequate alternative remedy under another statute).
FOIA specifically bars judicial review of an APA claim where the claimant
seeks "a court order" to produce the same documents under both FOIA and the APA.
Walsh v. U.S. Dep't of Veteran Affairs, 400 F.3d 535, 537–38 (7th Cir. 2005); see 5
U.S.C. § 552(a)(4)(B) (permitting a court to order the production of documents
pursuant to FOIA). In instances where a FOIA exemption prohibits disclosure, "the
Privacy Act makes such withholding mandatory upon the agency." News-Press v.
U.S. Dep't of Homeland Sec., 489 F.3d 1173, 1189 (11th Cir. 2007). A claimant may
simultaneously pursue claims under the APA and FOIA, however, if the requested
remedy under the APA includes more than disclosure of documents, such as
vindication for a First Amendment violation. Nat'l Ass'n of Waterfront Emp'rs v.
Chao, 587 F. Supp. 2d 90, 97–98 (D.D.C. 2008). A party may advance an APA claim
as well as another type of claim only if the APA claim does not duplicate "existing
procedures for review of an agency action." Radack v. U.S. Dep't of Justice, 402 F.
Supp. 2d 99, 104 (D.D.C. 2005) (citation omitted).
The district court dismissed Central Platte's APA claim because it found that
the FOIA provided an adequate alternative remedy. Central Platte argues that it can
sustain its APA claim because it stems from an alleged violation of the Privacy Act
while its FOIA claim arises out of an alleged violation of that statute. Central Platte
asserts that this case is similar to Radack, where the plaintiff could concurrently assert
claims under both the APA and the Privacy Act for improper disclosure of
information. Id. Central Platte further argues that a finding that FOIA provides an
adequate remedy would effectively make unreviewable the USDA's decision not to
disclose the GIS data under the Privacy Act's routine use exceptions.
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We disagree. Central Platte's requested relief under both FOIA and the APA
distinguishes this case from Radack. There, the claimant had requested monetary
relief under the Privacy Act and declaratory and injunctive relief under the APA. Id.
Here, by contrast, Central Platte seeks declaratory judgment and a court order
requiring the production of documents under both its APA claim and its FOIA claim.
FOIA therefore provides Central Platte with an "adequate remedy in a court." 5
U.S.C. § 704. Congress did not mean for the APA's review procedures to duplicate
existing review mechanisms. Walsh, 400 F.3d at 538. Such a duplication would
result if both Central Platte's APA and FOIA claims proceeded simultaneously
because the district court would twice determine whether the agency should be
required to disclose the same data. Moreover, Central Platte's APA claim remains
subject to the 2008 Farm Bill which, as we have already determined, did not require
the USDA to disclose the GIS data. We therefore hold that Central Platte's APA
claim is barred.
For these reasons we affirm the judgment of the district court.
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