                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 16 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

ANIMAL LEGAL DEFENSE FUND,                       No. 19-15528

              Plaintiff-Appellee,                D.C. No. 3:12-cv-04376-EDL

 v.
                                                 MEMORANDUM*
UNITED STATES FOOD & DRUG
ADMINISTRATION,

              Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                           Submitted January 13, 2020**
                              Pasadena, California

Before: GRABER, WARDLAW, and MURGUIA, Circuit Judges.

      The United States Food and Drug Administration ("FDA") timely appeals

the district court’s judgment partially in favor of Plaintiff Animal Legal Defense

Fund following a bench trial. The sole issue at trial was whether certain categories


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
of information were "confidential" under Exemption 4 of the Freedom of

Information Act. 5 U.S.C. § 552(b)(4). At issue in this appeal is the district

court’s ruling, under the then-applicable definition of "confidential," that the

disclosure of four categories of information—total number of hen houses, number

of floors per house, number of cage rows per house, and number of cage tiers per

house—is not likely to cause substantial competitive harm.1

      After entry of judgment, the Supreme Court decided Food Marketing

Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019). The Court rejected our

definition of "confidential" and issued its own definition. Id. at 2362–66. We

agree with the parties that Argus Leader controls on appeal. United States v.

Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801); Lambert v. Blodgett, 393

F.3d 943, 973 n.21 (9th Cir. 2004).

      We vacate the judgment in relevant part and remand for further proceedings.

The district court did not have the benefit of Argus Leader, and we decline to apply

the new legal standard in the first instance. See, e.g., Strategic Diversity, Inc. v.



      1
        The district court held that one category of information, total hen
population, fell within Exemption 4 and, accordingly, the court granted judgment
to the FDA in that respect. Plaintiff timely appealed but voluntarily dismissed the
appeal. We lack appellate jurisdiction over the part of the judgment that was
entered in favor of the FDA. Greenlaw v. United States, 554 U.S. 237, 244 (2008);
El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999).

                                            2
Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012) (describing our precedent as

"noting the prudence of remand in light of recent Supreme Court authority");

Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1041 (9th Cir. 2003)

("Because the district court did not have the opportunity to consider the facts of

this case in light of the standard the Supreme Court articulated in [an intervening

decision], we vacate the district court’s judgment on the [relevant] claim and

remand for reconsideration in light of [that decision].").

      We find remand particularly appropriate here because the record is

underdeveloped as to whether each egg producer customarily and actually kept

each category of information at issue confidential. For example, although

representatives from Feather Crest, Cal-Maine, and Mahard Farms testified that

they would not let the public see the information that is subject to FDA inspection,

there is insufficient evidence as to what specific steps each producer took to keep

its information confidential. Moreover, it appears that some (but not necessarily

all) producers voluntarily publically disclosed certain categories of information in

ways that undermine confidentiality. Remand would enable the district court to

choose from a "variety of tools available . . . for supplementing the record with any

necessary facts." Betz v. Trainer-Wortham & Co., 610 F.3d 1169, 1171 (9th Cir.

2010).


                                           3
      On remand, the district court shall determine whether one or more egg

producers "customarily and actually treated" the relevant information "as private."

Argus Leader, 139 S. Ct. at 2366 (emphasis added). If necessary, the court shall

decide whether the term "confidential" requires a governmental "assurance of

privacy" and, if so, whether the FDA provided the necessary assurance. Id.

      We remand on an open record. The district court has the discretion to take

further evidence, if the court determines that doing so would be helpful in

answering the foregoing questions.

      VACATED in part and REMANDED for further proceedings. The

parties shall bear their own costs on appeal.




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