               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANIMAL LEGAL DEFENSE FUND,              No. 13-17131
           Plaintiff-Appellant,
                                        D.C. No.
              v.                   3:12-cv-04376-EDL

U.S. FOOD & DRUG
ADMINISTRATION,                          OPINION
           Defendant-Appellee.


         On Remand from the En Banc Court

              Filed September 30, 2016

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

                   Per Curiam Opinion
2                        ALDF V. USFDA

                            SUMMARY*


                  Freedom of Information Act

    On remand from the en banc court, the panel reviewed de
novo the district court’s summary judgment in a Freedom of
Information Act case, concluded that there was a genuine
issue of material fact, and reversed and remanded to the
district court for further proceedings.


                             COUNSEL

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.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      ALDF V. USFDA                          3

                         OPINION

PER CURIAM:

    In Animal Legal Defense Fund v. FDA, No. 13-17131,
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, 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 of material
fact in this case and, therefore, we must reverse and remand
to the district court for further proceedings.

   REVERSED and REMANDED.
