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People For Ethical Treatment of Animals v. United States Department of Health and Human Services

United States District Court, District of Columbia

January 5, 2017

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge.

         This cases arises from a Freedom of Information Act (“FOIA”) request submitted by Plaintiff People for the Ethical Treatment of Animals (“PETA”) to Defendant United States Department of Health and Human Services (“HHS”), Centers for Disease Control and Prevention (“CDC”), seeking records submitted by importers of nonhuman primates (“NHP”) to CDC pursuant to certain agency regulations.

         On August 18, 2016, the Court issued an order granting-in-part and denying-in-part the parties' respective motions for summary judgment. People for the Ethical Treatment of Animals v. United States Dep't of Health & Human Servs., No. 1:15-CV-309-CKK, 2016 WL 4401979 (D.D.C. Aug. 18, 2016) (“PETA”). The Court found that four categories of commercial information submitted by importers of NHPs were confidential and protected under FOIA Exemption 4. Id. at *1. However, the Court held that all of the information submitted by three NHP importers-Central State Primate (“CSP”), Dallas Zoo Management (“DZM”), and SBNL USA (“SNBL”)-was not protected because those importers had chosen not to object to the disclosure of their records. Id.

         Presently before the Court are Defendant's and Plaintiff's [49] and [52] cross-motions for relief under Federal Rule of Civil Procedure 60(b). Upon consideration of the parties' submissions, [1] the relevant legal authorities, and the record as a whole, the Court shall GRANT Defendant's motion and GRANT-IN-PART and DENY-IN-PART Plaintiff's motion. The Court grants Defendant's motion under Rule 60(b)(6) and now holds that the four categories of information the Court previously held qualified for protection pursuant to FOIA Exemption 4 with respect to the records of the seven objecting importers also qualify for such protection with respect to CSP, DZM and SNBL's records. In addition, the Court grants Plaintiff's motion under Rule 60(b)(1) in that it now holds that two categories of information-animal quantity information and crate information-are not exempt with respect to the records of two importers: Worldwide Primates, Inc. (“WWP”) and Primate Products Inc. (“PPI”). The Court denies Plaintiff's motion under Rule 60(b)(1) with respect to all other importers' records, and denies Plaintiff's motion under Rule 60(b)(3) in its entirety.

         I. BACKGROUND

         A. Procedural History

         The background of this case was discussed in detail in the Court's August 18, 2016 Memorandum Opinion and will not be repeated here, but is incorporated by reference as part of this Opinion. As relevant to the pending motions, the Court made the following findings in its August 18 Opinion:

• Four categories of information requested by PETA-the quantity of animals imported, the descriptions of crates used in shipments, the names of the companies that export the animals, and the names of the airline carriers that transport the animals-qualify for protection pursuant to FOIA Exemption 4.
• One category of information requested by PETA-the names of the species of animals imported-does not qualify for protection pursuant to FOIA Exemption 4.
• Three NHP importers-Central State Primate, Dallas Zoo Management, and SBNL USA-have chosen not to object to the disclosure of the records that they have submitted. Accordingly, Plaintiff is entitled to each of the five categories of information that it has requested in the records submitted by these three non-objecting companies.

PETA, 2016 WL 4401979, at *1. Defendant claims that “[s]hortly after the Court issued its Memorandum Opinion, CSP, DZM, and SNBL contacted the CDC and stated that they had been unaware of this case prior to receiving the Court's opinion.” Def.'s Mot. At 2. Defendant states that each of these importers “explained that, for reasons uncertain, the Notice did not reach the responsible FOIA manager or comparable official; consequently, those companies' silence was inadvertent and did not reflect a lack of commercial harm from a potential release.” Id. Defendant has submitted declarations from each of these entities in which they claim “that the release of [their] records would cause substantial commercial harm for the very reasons the Court embraced with respect to the seven companies that responded to the Notice.” Id.

         On September 15, 2016, based on these new importer-objections, Defendant moved under Federal Rule of Civil Procedure 59 to alter or amend the Court's August 18, 2016 Order. Def.'s Mot. to Alter or Amend the Judgment, ECF No. 41. Defendant requested that the Court amend its Order such that Defendant be allowed to withhold the categories of information the Court had found qualified for protection pursuant to FOIA Exemption 4 for the three previously non-objecting NHP importers. Id. at 2.

         However, Defendant did not confer with Plaintiff before filing its Motion to Alter or Amend, and Plaintiff moved to strike that Motion for failure to comply with Local Civil Rule 7(m). Pl.'s Mot. to Strike, ECF No. 45. In arguing that Defendant's Rule 59(e) motion should be stricken, Plaintiff stated that “[a]lthough courts may occasionally hear motions despite non-compliance with Local Civil Rule 7(m), out of concern that a litigant will lose its last or only opportunity to argue an issue on the merits, no such concern is present here. HHS can seek similar relief in the future pursuant to Federal Rule of Civil Procedure 60(b) if the parties are not able to resolve the issues raised in HHS's motion during their Rule 7(m) conference.” Id. at 5. The Court granted Plaintiff's motion and struck Defendant's motion to amend under Rule 59 because the Court found that Defendant's motion was nondispositive for the purposes of Local Rule 7(m) despite the fact that it was related to Defendant's motion for summary judgment. Accepting Plaintiff's argument, the Court noted that “striking Defendant's Motion to Amend does not leave Defendant without any way of obtaining the relief sought in that motion” because, by the time of the Court's order, Defendant had already sought similar relief through a motion under Federal Rule 60(b). ECF No. 50 at 2.

         That Rule 60(b) motion is now pending before the Court. Defendant's Rule 60(b) motion is brought under subsections (b)(2) and (b)(6) and seeks the same relief as Defendant's earlier Rule 59 motion-namely, that the Court extend its holding that certain categories of information were properly withheld under Exemption 4 to the three previously non-objecting importers. Def.'s Mot. at 3. Plaintiff consents to Defendant's Motion as it relates to the records of DZM. Id.

         Plaintiff opposes Defendant's motion as it relates to CSP and SNBL, however, and has also filed its own cross-motion under Rule 60(b). Plaintiff argues that under Rule 60(b)(1) the Court should reconsider its ruling with regard to two categories of information-the quantity of animals imported and the descriptions of crates used in shipment-because Defendant failed to present sufficient evidence that the release of either would cause NHP importers competitive injury. Pl.'s Opp'n and Cross-Mot. at 13-15. Plaintiff also argues that, under Rule 60(b)(3), the Court should reconsider its ruling with regard to all four categories of information due to alleged misrepresentations made by NHP importers in declarations they have filed with the Court. Id. at 15-20.

         Both parties' motions are now fully briefed and ripe for resolution.

         B. The Record

         Before addressing the merits of those motions, however, it is helpful to briefly pause and lay out the various different records and declarations relied on by the parties and reviewed by the Court throughout the stages of the briefing in this case. First, at the summary judgment stage, Defendant filed, among other things, the 1, 575 redacted records from the ten NHP importers at issue in this case that had been produced by Defendant to Plaintiff in response to Plaintiff's FOIA request. ECF No. 33. The Court reviewed all of these records before ruling on the parties' cross-motions for summary judgment. Defendant also filed declarations from two of the seven objecting NHP importers-WWP and PPI-attesting to the competitive nature of the NHP industry and the confidentiality of the redacted information. ECF Nos. 27-2, 27-3 (“Summary Judgment Declarations”).

         At the Rule 60(b) motion stage, Defendant has now filed with the Court, among other things, declarations from the three previously non-objecting importers, as well as new declarations from three of the seven originally objecting importers. ECF Nos. 48-1, 48-2, 53-1, 53-2, 56-1 (“Rule 60(b) Declarations”). In addition to explaining why the previously non-objecting importers had not objected, these declarations also attest to the confidential nature of the information redacted from the importers' records. Id. On the Court's order, Defendant also filed, ex parte for the Court's in camera review, the letters that the seven objecting NHP importers had written to Defendant requesting that certain information be redacted from their records. ECF No. 58. The Court previously held that Defendant did not need to produce these letters because Defendant claimed that the letters themselves were subject to FOIA exemptions, and the Court felt it unnecessary to review them. ECF No. 36 at 15 n.10. There were no objection letters from the three originally non-objecting importers, who apparently only objected to Defendant informally after being informed of the Court's August 18 Opinion. The Court's in camera review of those letters was focused on the letters of WWP and PPI, due to the parties' dispute regarding what categories of information those importers had requested be redacted from their records. The parties have not disputed Defendant's representation that the redactions to the other five objecting importers' records that were produced to Plaintiff align with the redactions requested by those importers. Moreover, the Court has only relied on the letters of WWP and PPI in that they informed the Court that these importers had indicated what information they wished to be redacted from their records that were being considered for release by highlighting that information on a copy of those records that they provided to Defendant.[2] The Court then ordered Defendant to file, again ex parte for the Court's in camera review, those sets of highlighted documents, which contained 105 pages. ECF No. 60. The Court has reviewed these documents as discussed further below. The Court will allow these documents to remain as lodged ex parte and under seal because they reveal the very information the Court herein orders is exempt from release under Exemption 4.

         Finally, in support of Plaintiff's cross-motion under Rule 60(b), Plaintiff attached a number of new records that are also discussed below. These included, among other things, Certificates of Veterinary Inspections and similar records, as well as Fish and Wildlife Service Law Enforcement Management Information Systems records. ECF No. 51-1. Upon being ordered by the Court to do so, Plaintiff filed a sworn declaration explaining when and how Plaintiff had acquired these records, for the purposes of the Court determining the appropriateness of their having been produced only now, in support of Plaintiff's Rule 60(b) motion. ECF No. 59.

         With this background in place, the Court moves on to addressing the merits of the parties' cross-motions.

         II. LEGAL STANDARD

         Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, a district court is permitted to “relieve a party or its legal representative from a final judgment, order, or proceeding” on one of six enumerated grounds. Fed.R.Civ.P. 60(b). Rule 60(b)(1) permits a court to relieve a party from an order based upon “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). Rule 60(b)(2) permits a court to relieve a party from an order based upon “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2). Rule 60(b)(3) provides that the Court may relieve a party from an order where there is “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(3). Finally, Rule 60(b)(6) represents a catch-all provision, permitting a court to relieve a party from an order for “any other reason that justifies relief” besides those enumerated in subsections (b)(1)-(5). Fed.R.Civ.P. 60(b)(6). The party seeking relief under Rule 60(b) bears the burden of showing that he or she is entitled to the relief, Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011), and “‘the decision to grant or deny a rule 60(b) motion is committed to the discretion of the District Court, '” Kareem v. FDIC, 811 F.Supp.2d 279, 282 (D.D.C. 2011) (quoting United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993)).

         III. ...


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