text:
    AMERICAN FARM BUREAU FEDERATION; National Pork Producers Council, Plaintiffs-Appellants, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, Administrator of the U.S. Environmental Protection Agency, Defendants-Appellees, Food & Water Watch; Environmental Integrity Project; Iowa Citizens for Community Improvement, Intervenor Defendants-Appellees, National Federation of Independent Business Small Business Legal Center, Amicus on Behalf of Appellant(s).
    No. 15-1234
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 22, 2015
    Filed: September 9, 2016

      Counsel who presented argument on behalf of the appellants was Michael B. Kimberly, of Washington, DC. In addition to Mr. Kimberly, the following attorney(s) appeared on the appellants’ brief; Ellen Steen, Danielle Quist, Michael C. Formica, Timothy S. Bishop, all of Washington, DC. and Gary M. Koch, and Matthew C. Berger of New Ulm, MN.
    The following attorney(s) appeared on the amicus brief of National Federation of Independent Business Small Business Legal Center in support of appellants; Jarod M. Bona .and Aaron R. Gott of La Jolla, CA and Luke A. Wake of Sacramento, CA.
    Counsel who presented argument on behalf of the appellees — Iowa Citizens for Community Improvement, Food & Water Watch and Environmental Integrity Project was Tarah Elizabeth Heinzen, of Washington, DC. The following attorney(s) appeared on the appellees — Iowa Citizens for Community Improvement, Food & Water Watch, et al.; Tarah Heinzen of Washington, DC.
    Counsel who presented' argument on behalf of appellees — EPA and Gina McCarthy was Pamela A. Marentette, AUSA, of Minneapolis, MN. The following attorney(s) appeared on the appellees brief; Pamela A. Marentette, AUSA, of Minneapolis, MN.
    Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
   COLLOTON, Circuit Judge.

The American Farm Bureau Federation and the National Pork Producers Council appeal the district court’s ruling that they lack Article III standing to bring a “reverse” Freedom of Information Act (“FOIA”) suit, see 5 U.S.C. §§ 552, 706(2)(A), challenging the Environmental Protection Agency’s disclosure of certain information about concentrated animal feeding operations. The associations contend that this disclosure is an unlawful release of their members’ personal information. Assuming, for purposes of standing analysis, that their claim would be successful on the merits, the associations have established a concrete and particularized injury in fact traceable to the EPA’s action and redressable by judicial relief. We therefore conclude the district court erred in dismissing this case for lack of standing. We further determine that the EPA abused its discretion in deciding that the information at issue was not exempt from mandatory disclosure under Exemption 6 of FOIA. Id. § 552(b)(6). Accordingly, we reverse and remand for the district court to consider the associations’ request for injunctive relief.

I.

The Clean Water Act prohibits the discharge of pollutants into waters of the United States, except as authorized under the Act. 33 U.S.C. §§ 1311(a), 1342, 1362(7), (12), (16). The Act regulates numerous sources of potential water pollution, including concentrated animal feeding operations (“CAFOs”). Id. § 1362(14). A CAFO is any area where a certain number of animals are “stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period” and where “[c]rops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season.” 40 C.F.R. § 122.23(b)(1), (2), (4), (6). A CAFO may not discharge pollutants into the waters of the United States unless it obtains a National Pollutant Discharge Elimination System permit from the EPA or an authorized state agency. See 33 U.S.C. §§ 1311(a), (e), 1342, 1362(14); 40 C.F.R. § 122.23(d), (f).

A person seeking a system permit for a CAFO from either the EPA or an authorized state agency goes through the same application process. 40 C.F.R. §§ 122.21(f), 123.25(a)(4). An applicant submits an array of information, including the name of the owner or operator of the facility, the facility location and mailing address, a topographic map of the geographic area where the feeding operation is located, and the estimated amounts of manure, litter, and process wastewater generated per year. Id. § 122.21(i); see id. § 122.23(d). The Act requires that permit applications and issued permits must be available to the public. 33 U.S.C. § 1342(b)(3), (j).

In 2008, the Government Accountability Office issued a report stating that the EPA’s information about CAFOs that received system permits from authorized state agencies was inconsistent and inaccurate. This report recommended that the agency compile a national inventory of CA-FOs with system permits. U.S. Gov’t Accountability .Office, GAO-08-944, Concentrated Animal Feeding Operations: EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality from Pollutants of Concern, at 48 (2008). At that time, a CAFO was required to obtain a system permit only if the operation actually discharged pollutants. The EPA expanded its system-permit requirement to include any CAFO that was designed, constructed, operated, and maintained in a manner that the CAFO would discharge, but the Fifth Circuit vacated the revised regulations as exceeding the agency’s statutory authority. Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 746, 756 (5th Cir.2011).

In addition to issuing these revised regulations, the EPA agreed — as part of a settlement agreement with environmental organizations — to propose a separate rule requiring all CAFOs to submit information to the EPA, whether or not the operations had a system permit. The proposed rule required certain information from all CA-FOs: the contact information of the CAFO owner, the location of the operation’s production area, and whether the operation had applied for a system permit. National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 76 Fed. Reg. 65,431, 65,437 (proposed Oct. 21, 2011). Comments from industry observers and States, however, suggested.that much of the information to be collected under the proposed rule was already available from sources other than the owners. The EPA consequently withdrew its proposed reporting rule and decided to collect the relevant information from federal, state, and local government sources. National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 77 Fed. Reg. 42,679, 42,681 (July 20, 2012).

Although the GAO had criticized the EPA’s internal data systems as incomplete, the agency did retrieve what information was available about system permits for CAFOs before issuing the proposed reporting rule. Much of the information from the agency’s internal data systems is available to the public in a different format on a public website. Enforcement and Compliance History Online, Env’tl Protection Agency, https://echo.epa.gov/ (last visited Aug. 25, 2016). The website’s publicly available information includes “facility names, locations, permit information, inspections, violations, enforcement actions (completed actions only), and penalties.”

After withdrawing the proposed reporting rule, the EPA obtained information about CAFOs for its national inventory from several sources. The agency has collected information from thirty-five States: twenty-seven States provided publicly accessible information at the EPA’s request, two States referred the agency to the federal data systems for their CAFO information, and the agency retrieved CAFO information from eight States’ websites (including two States that provided information at the EPA’s request). The EPA also gathered information about six States from its regional offices. While most of the information received from the States related to CAFOs, some States also gave the EPA information about other facilities.

While the agency was in the process of collecting this information, three organizations — Earthjustice, the Pew Charitable Trusts, and the Natural Resources Defense Council — submitted FOIA requests for the EPA’s records with information about CAFOs. Some of the requested information included the legal name of the owner of the CAFO and the owner’s mailing address, e-mail address, and primary telephone number. In response, the EPA released to the requesters information gathered from twenty-eight States and from the EPA’s data systems. The EPA did not release information obtained from the remaining seven States, because the agency gathered those data after the FOIA requests. After the agency notified agricultural stakeholders, including the Farm Bureau and the Producers Council, of the release, the stakeholders raised concerns. The EPA agreed to investigate whether it had disclosed information that was not readily available to the public and that could trigger privacy concerns under FOIA.

In a letter dated April 4, 2013, the EPA informed the agricultural stakeholders of the agency’s view that information concerning CAFOs from nineteen States did not implicate privacy interests that made the records eligible for withholding under Exemption 6 of FOIA. 5 U.S.C. § 552(b)(6). Exemption 6 excludes from mandatory disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. The EPA determined that Exemption 6 did not apply because the information from the nineteen States was accessible on a public website or available to the public on request, and that the release of that information thus did not implicate a substantial privacy interest. Even assuming a privacy interest, the agency determined that the weight of the public interest rendered any invasion of privacy not “clearly unwarranted.”

On the same day as the April 4 letter, the EPA provided an amended response to the FOIA requesters after completing its review. The agency disclosed all information regarding CAFOs in nineteen States. The agency did not disclose some of the information obtained from several other States, however, because that information pertained to facilities without system permits or facilities not subject to federal or state mandatory permitting disclosure requirements. The EPA reasoned that the latter subset of information — which contained individual names, phone numbers, mailing addresses, and e-mail addresses— implicated a substantial privacy interest that outweighed the public interest in disclosure. At the close of the response, the EPA asked the FOIA requesters to return the agency’s initial response, and all of the requesters acceded to the request.

The EPA currently has information regarding CAFOs in seven additional States that was obtained after the initial FOIA requests at issue here. The agency has not yet released that information to the FOIA requesters. Since its amended response to. the original FOIA requests, the agency has received seven more information requests seeking the same or similar information as the original requests; some requests also seek the information from the seven States that had not been released previously. The agency deferred those requests pending resolution of this litigation.

The Farm Bureau and the Producers Council brought this “reverse” FOIA action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). They sought an order preventing the EPA from making additional disclosures of personal information that it collects from the States and requiring the agency to recall the personal information that it released. The Farm Bureau and the Producers Council argued that 5 U.S.C. § 552(b)(6), known as Exemption 6 of FOIA, protected the information from mandatory disclosure, and that the agency abused its discretion and acted arbitrarily and capriciously or contrary to law by not withholding the information. Several environmental organizations — Food & Water Watch, Environmental Integrity Project, and Iowa Citizens for Community Improvement — intervened in support of disclosure of the information.

The parties filed cross-motions for summary judgment. The district court granted summary judgment for the EPA and the Intervenors, concluding that the Farm Bureau and the Producers Council lacked standing under Article III of the Constitution. The Farm Bureau and the Producers Council appeal.

II.

Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const, art. Ill, § 2. “[Standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A plaintiff establishes standing by showing that he has suffered an injury in fact that is fairly traceable to the challenged conduct of the defendant and that will likely be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130. “The standing inquiry is not, however, an assessment of the merits of a plaintiffs claim.” Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th Cir.2012); see Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir.2009). In assessing a plaintiffs Article III standing, we must “assume that on the merits the plaintiffs would be successful in their claims.” Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C.Cir.2008).

Associations like the Farm Bureau and the Producers Council have standing to bring suit on behalf of their members, provided that the “members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The EPA admits that the latter two elements are satisfied; the only dispute is whether any members of the organizations would have standing to sue in their own right.

The district court accepted the EPA’s argument that the Farm Bureau and the Producers Council lack standing because the personal information of their members is already publicly available. The Farm Bureau and the Producers Council argue that the court’s analysis conflates the requirements of standing with the merits of their claims under the APA.

Injury in fact means an actual or imminent invasion of a concrete and particularized, legally protected interest. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. A party’s injury in fact is distinct from its potential causes of action. Carlsen v. GameStop, Inc., No. 15-2453, 2016 WL 4363162, at *3 (8th Cir. Aug. 16, 2016); Braden, 588 F.3d at 591, 593. Accordingly, a plaintiff need not prove an unlawful action to have standing, because “whether a statute has been violated ‘is a question that goes to the merits ... and not to constitutional standing.’ ” Muir, 529 F.3d at 1105-06 (quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C.Cir.1998)); see Red River Freethinkers, 679 F.3d at 1023.

The EPA reasons that because the disputed information was publicly available on the Internet or available for public review, further distribution of the information could not establish any injury. That conclusion, however, assesses the merits of the asserted privacy interest under FOIA rather than whether the associations’ members had a legally cognizable interest in preventing the agency’s release of their personal information. It was undisputed on the motions for summary judgment that the agency has released or will release personal information of association members without their consent as part of its response to the FOIA requests. That is sufficient to establish a concrete and particularized injury in fact: the nonconsensual dissemination of personal information. Whether the release of this information “would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6), is a separate inquiry into the merits of the claim.

The EPA also contends that the plaintiffs cannot show causation or redressability. The agency asserts that the disputed information is already publicly available through the States, and the court cannot prevent further distribution and use of that information by third parties. This argument, however, rests on the agency’s flawed understanding of the plaintiffs’ alleged injury in fact. The asserted injury is the noneonsensual disclosure of personal information by the EPA. That injury was caused by EPA’s disclosures and threatened disclosures, and it can be redressed by an order requiring EPA to refrain from future disclosures and to recall information previously disclosed.

The Intervenors argue that the claims of the Farm Bureau and the Producers Council are moot because the EPA has already produced the information requested, and the information will remain in the public domain. The case is still live, however, because EPA has proposed to disclose more information from seven States, including Minnesota, and because EPA has the capacity-to request the return of information that it already disclosed.

The Intervenors further contend that a dispute over the unreleased information from seven States is not ripe for review because the EPA has not made a final decision about whether to disclose it. See 5 U.S.C. § 704. The agency’s decision letter of April 4, however, is a “final agency, action” under § 704, because the letter marks “the consummation of the agency’s decisionmaking process ... from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotations omitted). Based on its analysis in the April letter, the agency committed to release data that it had gathered about CAFOs. The agency agreed to delay releasing information gathered from certain States only until the conclusion of this litigation. The agency’s decision letter is therefore is a final, reviewable action under the APA. For essentially the same reasons, the decision is ripe for review. See Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, 1002 n.2 (8th Cir.2015).

In sum, members of the Farm Bureau and Producers Council allege that the EPA’s disclosure of their personal information was based on a misapplication of a FOIA exemption designed to protect personal privacy. That allegation and the undisputed evidence of noneonsensual disclosures or impending disclosures by the EPA suffice to establish an injury in fact that was caused by the agency and is redressable by the court. The associations therefore have standing to challenge the agency’s action.

III.

Although the district court ruled that the plaintiffs lacked standing to sue, the court’s decision in substance addressed the merits of whether the EPA’s disclosure constituted a clearly unwarranted invasion of personal privacy subject to Exemption 6 of FOIA. As the district court’s decision on that question is foreordained, there is no point in remanding for the court to address the merits of the agency’s action on Exemption 6. The parties have fully briefed the issue, and neither party identifies a question of fact that must be resolved by the district court. We thus proceed to consider whether the EPA’s decision concerning Exemption 6 was an abuse of discretion, arbitrary and capricious, or contrary to law.

As a general matter, FOIA requires that the government provide information requested under FOIA to a requester. 5 U.S.C. § 552(a); see In re Dep’t of Justice, 999 F.2d 1302, 1305 (8th. Cir.1993) (en banc). The Act, however, includes nine categories of information that are exempt from mandatory disclosure. 5 U.S.C. § 552(b). If requested information is exempt from mandatory disclosure, the agency normally may still elect to disclose the information, “unless something independent of FOIA prohibits disclosure.” Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1185 (8th Cir.2000).

Exemption 6 of FOIA states that an agency is not required to disclose “personnel and medical files and similar files” if such disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). An agency’s review under Exemption 6 involves three steps. First, the agency must determine whether the request seeks personnel, medical, or similar files. The parties do not dispute that the information here involves “similar files.”

The agency must then determine whether disclosure would compromise a “substantial” privacy interest. See Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228-29 (D.C.Cir.2008); accord Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 175-76 (2d Cir.2014). If the agency determines that there is a substantial ' privacy interest in the information, the agency must then “balance the privacy interest of the individual against the public interest in disclosure” to determine whether the exemption applies. Campaign for Family Farms, 200 F.3d at 1185; see Multi Ag Media, 515 F.3d at 1229-31.

As a disclosure statute, FOIA provides only a cause of action to compel disclosure; it does not provide a means of preventing disclosure. See 5 U.S.C. § 552(a)(4)(B); Chrysler Corp. v. Brown, 441 U.S. 281, 290-94, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). A party aggrieved by an actual or impending disclosure, however, may bring a “reverse” FOIA action under the APA and obtain relief if the agency’s decision to disclose the information is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a); see Campaign for Family Farms, 200 F.3d at 1184. A reviewing court cannot substitute its judgment for a permissible judgment of the disclosing agency, but the agency must examine the relevant factors and articulate a satisfactory explanation for its action. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

The associations dispute the agency’s conclusion that disclosure of the information would not compromise a “substantial” privacy interest. See Cook, 758 F.3d at 175-76; accord Multi Ag Media, 515 F.3d at 1229. In this analysis, “[a] substantial privacy interest is anything greater than a de minimis privacy interest.” Multi Ag Media, 515 F.3d at 1229-30. While Exemption 6 speaks only of “personal privacy,” we have never employed an “overly technical distinction between individuals acting in a purely private capacity and those acting in an entrepreneurial capacity.” Campaign for Family Farms, 200 F.3d at 1189; see Multi Ag Media, 515 F.3d at 1228. Rather, we construe Exemption 6 broadly “as a general exemption that excludes ‘those kinds of files the disclosure of which might harm the individual.’ ” Campaign for Family Farms, 200 F.3d at 1188-89 (quoting U.S. Dept. of State v. Wash. Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982)). A CAFO owner thus may have a substantial individual privacy interest in the disclosure of the operations’ records if the disclosure of those files would harm the owner personally. Id.

The information requested here includes personal information about CAFO owners, including names, home addresses, telephone numbers, GPS coordinates of homes, and information from which financial information could be gleaned. Declar-ant David Rydberg, for example, avers that his home address is the same as the address of his facility, that his family lives at that address, and that the global positioning coordinates that he provided to the State of Iowa match the location of his home. The EPA, however, has released that information over Rydberg’s objection. The Farm Bureau and the Producers Council provide similar affidavits from several Minnesota farmers opposed to the impending release of their personal information by the agency.

The disclosure of names, addresses, telephone numbers, GPS coordinates, and financial statuses can implicate substantial privacy interests. See U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 500, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994); Campaign for Family Farms, 200 F.3d at 1188-89; Multi Ag Media, 515 F.3d at 1230. In this context, the disclosure of such information would constitute a substantial invasion of privacy, because it would facilitate unwanted contact with CAFO owners by FOIA requesters and their associates, and even potential harassment of CAFO owners and their families. See U.S. Dep’t of State v. Ray, 502 U.S. 164, 176 n.12, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1026 (9th Cir.2008) (“The avoidance of harassment is a cognizable privacy interest under Exemption 6.”). One member of Food & Water Watch, for example, admits to having “participated in aerial and ground investigations of poultry facilities” and avers that “to protect our waterway under the Act, it is important to know the name and proper contact information for these facilities and their owners and operators.” Declarant Rick Grommersch of Minnesota provided details of an incident during which members of an environmental organization entered his property and told him that they were going to post pictures of his property online. The agency itself acknowledged in its proposed reporting rule “that providing ■latitude and longitude information might raise security or privacy concerns.” National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 76 Fed. Reg. at 65,438.

The EPA’s decision letter nonetheless concluded that Exemption 6 did not apply because the requested information was “well known or widely available within the public domain.” The agency emphasizes that much of the disputed information is accessible on federal or state websites or otherwise available in the public record.

The agency’s conclusion on this point was contrary to law. “An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.” FLRA, 510 U.S. at 500, 114 S.Ct. 1006. The EPA here is more than simply a second source for identical, publicly available information. The agency has aggregated vast collections of data from the majority of States — much of it obtained through state-specific information requests — and provided it to requesters in a single response.

In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 757, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), news organizations sought the release of criminal “rap sheets” • compiled by the United States Department of Justice. These rap sheets compiled publicly-available information from local, state, and federal law enforcement agencies into a single report of subjects’ personal information and criminal history. Id. at 752, 109 S.Ct. 1468. The Supreme Court upheld the Justice Department’s refusal to release the rap sheets, and rejected the requesters’ argument that there was no exemption from FOIA disclosure because the information was publicly available. The Court noted the “vast difference” between public records that might be found after a diligent search through various administrative files and “a computerized summary located in a single clearinghouse of information.” Id. at 764, 109 S.Ct. 1468. Reporters Committee considered a privacy interest under Exemption 7 of FOIA rather than Exemption 6, but the decision provides important guidance in assessing a privacy interest under Exemption 6. See FLRA, 510 U.S. at 496 n.6, 114 S.Ct. 1006.

Like the requesters in Reporters Committee, the requesters here seek access to “a single clearinghouse of information” compiled by a government agency. While the advent of the Internet has made some of the information at issue here more easily accessible than the information in Reporters Committee, CAFO owners still have a privacy interest in preventing the mass aggregation and release of their personal information by the government. The agency’s own extensive collection efforts and advocacy groups’ multi-year effort to obtain the data show that the EPA has consolidated information that would otherwise exist in considerably greater obscurity. See Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468.

That information about a particular owner might be obtained through publicly-available sources likewise does not preclude a substantial privacy interest. There is an important distinction “between the mere ability to access information and the likelihood of actual public focus on that information.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927, 933 (D.C.Cir.2014). Although a requester might be able to find the information he seeks on a website or in a State’s publicly available files, the agency’s comprehensive listing of CAFOs substantially increases the public visibility and accessibility of that information. The agency’s release of the complete set of data on a silver platter, so to speak, eliminates the need for reques-ters and others to scour different websites and to pursue public records requests to create a comprehensive database of their own. If the information were so easily accessible, then it is passing strange that the parties would engage in protracted and expensive litigation to secure it through the Freedom of Information Act. See Reporters Comm., 489 U.S. at 764, 109 S.Ct. 1468. We conclude that the organizations’ members have a substantial privacy interest in the personal information at issue.

As to some of the disclosures, the agency concluded alternatively that even if there were a substantial privacy interest in the number, size, and location of animal livestock operations, that privacy interest was outweighed by the public’s interest in disclosure. In assessing that conclusion, “the only relevant public interest” is “the extent to which disclosure of the information sought would shed light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to.” Bibles v. Or. Nat. Desert Ass’n, 519 U.S. 355, 355-56, 117 S.Ct. 795, 136 L.Ed.2d 825 (1997) (per curiam) (quotations and brackets omitted). FOIA’s purpose “is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468; see FLRA, 510 U.S. at 495-96, 114 S.Ct. 1006.

The EPA asserts that there is a public interest in disclosing the collected CAFO information because it provides the public with information about the agency’s efforts to implement the Clean Water Act. But the disclosure of names, addresses, phone numbers, e-mail addresses, and GPS coordinates does not directly shed light on the agency’s performance of its statutory duties. See 489 U.S. at 773, 109 S.Ct. 1468. The EPA argues instead that the disclosures will indirectly promote this public interest by showing that the agency followed through on its commitment to gather CAFO information from existing sources and demonstrating that the agency is succeeding in its efforts to create a comprehensive inventory of information about CAFOs.

The EPA’s contention is unconvincing, because other records responsive to the FOIA requests address those two public interests without invading personal privacy. The EPA’s 2012 memorandum of understanding with the Association of Clean Water Administrators details the agency’s collaborative effort with the Association to focus on “identifying CAFOs and obtaining pertinent information about CAFOs on a state by state basis for use” by the EPA. The memorandum explains the agency’s “plan to take the following steps to achieve” the listed objectives, including that the EPA would “[u]se best efforts to facilitate the collection and transfer of CAFO information currently maintained by states” to the agency. Another internal document sets forth an “Implementation Workplan” that outlines “specific tasks” to meet the agency’s “action items” and establishes a time frame for collecting the CAFO data.

The records also show that the agency followed through on its plan. An e-mail from an EPA employee in November 2012 explained to a Florida state official that the agency had completed forty-two telephone calls with state officials to collect CAFO information. The e-mail attached a standard agenda used for those calls, which included discussions about the “[ajmount and format of state permitting records for CAFO data elements,” along with the “[ejxchange of information” between the respective State and the EPA. There is a presumption of regularity accorded to the EPA’s collection efforts, and the agency records described above largely address the public interest in knowing how the agency proceeded to collect CAFO information in the wake of the GAO report. See Ray, 502 U.S. at 179, 112 S.Ct. 541.

The disputed spreadsheets themselves could be disclosed in redacted form and still inform the public about the agency’s collection efforts. See id. at 174, 177-79, 112 S.Ct. 541. If information implicating a substantial privacy interest were redacted, the spreadsheets with columns reflecting only system permit status, city, county, and zip code would reflect the scope and comprehensiveness of the EPA’s collection efforts without intruding on the personal privacy of CAFO owners. The marginal public interest in disclosing personal information such as names, street addresses, phone numbers, e-mail addresses, and GPS coordinates is de minimis. To recognize a public interest in disclosure of private information merely to verify that it has been collected would swallow the rule that Exemption 6 protects against clearly unwarranted invasions of personal privacy.

The EPA suggests that Congress, having required public disclosure of permits and permit applications, placed a premium on citizen involvement in the regulatory process under the Clean Water Act. Therefore, the agency argues, there must be a public interest in releasing personal information about CAFO owners to the requesters. The Clean Water Act, however, did not amend the public interests that are relevant under FOIA — i.e., shedding light on an agency’s performance of its statutory duties. That the requesters may seek to vindicate policies underlying the Clean Water Act does not affect the FOIA analysis under Exemption 6. See FLRA, 510 U.S. at 499, 114 S.Ct. 1006.

All told, we conclude that the EPA’s disclosure of spreadsheets containing personal information about owners of CAFOs would invade a substantial privacy interest of the owners while furthering little in the way of public interest that is cognizable under FOIA. Under those circumstances, disclosure “would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6); see FLRA, 510 U.S. at 500-02, 114 S.Ct. 1006, and it was an abuse of discretion for the agency to conclude otherwise. Accordingly, the agency records at issue were exempt from mandatory disclosure. Campaign for Family Farms, 200 F.3d at 1189.

The Farm Bureau and the Producers Council urge this court to go further and direct the entry of injunctive relief that would prevent the EPA in its discretion from disclosing the records. We explained in Campaign for Family Farms that normally, “an agency has discretion to disclose information within a FOIA exemption, unless something independent of FOIA prohibits disclosure.” Id. at 1185. The associations contend that the Privacy Act is a source of law independent of FOIA that forbids disclosure. They rely on a provision of the Privacy Act that prevents an agency from disclosing any record which is contained in a system of records without the prior written consent of the individual to whom the record pertains, unless disclosure of the record would be required under FOIA. 5 U.S.C. § 552a(b)(2). The associations also contend that it would be arbitrary and capricious under the APA for the EPA to release information contrary to ah internal agency policy that allegedly requires categorical withholding of information subject to Exemption 6. The EPA responds that the cited provision of the Privacy Act does not apply to the records at issue in this case, and that the agency has no internal policy in place' that would have prohibited disclosure if the agency had applied Exemption 6. The record was not developed, however, concerning any internal agency policy,, and the district court — having dismissed the case for lack of standing — did not address whether injunctive relief was appropriate on either ground asserted by the associations. We therefore remand the case for further proceedings on this question.

For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: LOKEN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Elfred William PETRUK, Defendant-Appellant
    No. 15-2547
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 31, 2016
    Filed: September 9, 2016

      Counsel who represented the appellant was Katherine M. Menendez, AFPD, of Minneapolis, MN.
    Counsel who represented the appellee was Thomas More Hollenhorst, AUSA, of Minneapolis, MN.
    Before LOKEN, MURPHY, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

In June 2012, Elfred Petruk stole Travis Behning’s pickup truck. After Behning tracked Petruk down in a different vehicle, the two had an altercation, and Petruk assaulted Behning with a hammer. A jury convicted Petruk of one count of carjacking in violation of 18 U.S.C. § 2119(1) and two counts of corruptly attempting to obstruct an official proceeding in violation of 18 U.S.C. § 1512(c)(2). Petruk appealed; we reversed the convictions for carjacking and one obstruction count and remanded for resentencing on the remaining obstruction count. United States v. Petruk, 781 F.3d 438 (8th Cir. 2015). On remand, the district court determined that Petruk’s advisory guidelines sentencing range was 41 to 51 months and sentenced him to 46 months in prison. Petruk appeals the sentence, arguing the district court committed procedural errors by applying a two-level enhancement for an obstruction offense that was “extensive in scope, planning, or preparation,” U.S.S.G. § 2J1.2(b)(3)(C), and by denying a two-level reduction for acceptance of responsibility under § 3E1.1. We affirm.

I. The Section 2J1.2(b)(3)(C) Enhancement.

In December 2012, Petruk was in jail facing state court charges arising out of his altercation with Behning. He attempted to solicit his former girlfriend, Sara Jean Peterson, to help him secure false alibi witnesses. This was the basis for the first obstruction count. We reversed that conviction because Petruk did not attempt to obstruct a federal “official proceeding,” as § 1512(c)(2) requires. 781 F.3d at 444-46.

In June 2013, Petruk was charged with the federal carjacking offense. In October, while incarcerated, he mailed a letter to Peterson, asking her to find a person to play the part of “Sam,” a fictitious person who would speak with Petruk in a recorded prison telephone call and falsely confess to the carjacking. The letter included a detailed script for a conversation between Petruk and Sam. Petruk wrote that he would call Peterson in the future and that “the code words to tell me your ready on your end is — I am at the store call me back in 15 minute’s.” He used the name of a fellow inmate on the envelope to conceal his authorship. One week later, Petruk wrote a second letter providing a longer and more detailed script. He wrote to Peterson, “We pull this off, I am home free With any jury ... if anyone ever come at you about this sam, you only got to say you’ve met him twice.”

Petruk called Peterson on November 3 and asked her in the recorded call if she was “gonna go to the store?” Peterson responded, “I’m not goin’ to the store tonight.” Peterson turned the letters over to an ATF agent that month and testified for the government at trial. Though a longtime friend of Petruk, she testified that she made no attempt to execute his “ridiculous” plan to recruit a person to play a fictional character, Sam, who would provide a false confession to the assault of Behning in a phone conversation that jail officials would overhear and record.

At resentencing, the district court imposed a two-level enhancement under § 2J1.2(b)(3)(C) because his obstruction offense was “extensive in scope, planning, or preparation.” On appeal, Petruk argues the district court erred because his efforts to obstruct justice were “limited, unsophisticated and utterly unsuccessful.” The parties’ appeal briefs recite our frequently-stated standard of review of sentencing guidelines decisions — we review the district court’s factual findings for clear error and its application or interpretation of guidelines provisions de novo. See, e.g., United States v. Bakhtiari, 714 F.3d 1057, 1062 (8th Cir. 2013). But the parties unwisely fail to address whether “extensive in scope, planning, or preparation” is an issue of fact or law. They simply argue the district court did, or did not, “err.” We have found no prior case addressing this issue, which is not free from doubt.

The district court carefully explained why it found (or concluded) that Petruk’s obstruction offense was “extensive in scope, planning, or preparation” within the meaning of § 2J1.2(b)(3)(C):

Mr. Petruk, in an effort to, frankly, subvert justice following a rather brutal assault of his victim concocted a rather elaborate plan to manufacture evidence of a false confession. I would agree it was an ill-fated strategy, but it was nonetheless fairly complicated. He enlisted the support of a friend to record a statement from a fictitious person named Sam to falsely confess to the carjacking offense on the prison phone, hoping that authorities would hear the confession while monitoring the prison phone system. He drafted multiple scripts of this confession. This took several days, involved multiple phone calls and mailed correspondence.
He even raised a concern in his second letter with a revised script for Sam that whoever played Sam would have to act like he wasn’t reading from a script. And he even thought to write a different inmate’s name on the return address of the mailed correspondence so as to not connect it to him. I would agree it was poorly conceived, I would agree it was ill-fated, but that’s not the question. The question is whether it was extensive in scope, planning, or preparation under this enhancement, and the Court finds that it was and that the enhancement is appropriate.

There is no commentary from the Sentencing Commission and a dearth of caselaw interpreting the operative term in § 2J1.2(b)(3)(C). Petruk argues that his obstructive activity was less extensive than the conduct that warranted this enhancement in three appellate decisions that applied § 2J1.2(b)(3)(C), Bakhtiari, 714 F.3d at 1061-62; United States v. Rodriguez, 499 Fed.Appx. 904, 907-09 (11th Cir. 2012), cert. denied, — U.S. —, 133 S.Ct. 1844, 185 L.Ed.2d 849 (2013); and United States v. Jensen, 248 Fed.Appx. 849, 850-52 (10th Cir. 2007). The comparisons are instructive, but not controlling, because in each case the court of appeals affirmed a district court’s application of § 2J1.2(b)(3)(C) to specific facts. We are inclined to agree with Petruk that his attempt to corrupt this federal prosecution was not “extensive in scope.” It was quite unlike the “extreme and repetitive misconduct” that undermined the integrity of a correctional institution in Jensen. Id. at 851 (quotation omitted). But we agree with the district court that Petruk’s elaborate and complicated scheme to corrupt a prosecution with false evidence was “extensive in planning [and] preparation,” like the “gathering together of lies and misrepresentations” in Rodriguez, 499 Fed.Appx. at 909 (quotation omitted), and the “extensive planning” undertaken to intimidate an opposing lawyer and his family in Bakhtiari, 714 F.3d at 1062. Accordingly, we conclude the district court did not err in imposing the § 2J1.2(b)(3)(C) enhancement.

II. The § 3E1.1 Reduction.

Section 3E1.1 provides for a two-level reduction if the defendant “clearly demonstrates acceptance of responsibility for his offense.” Petruk argues the district court erred in denying the reduction because he “clearly demonstrated that he accepted] responsibility for his attempt to obstruct an official proceeding.” “[A] determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.” U.S.S.G. § 3E1.1, comment, (n.2). It is a “rare situation” where a defendant who contests his guilt at trial can meet his burden to clearly demonstrate acceptance of responsibility. United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.), cert. denied, 552 U.S. 1054, 128 S.Ct. 687, 169 L.Ed.2d 537 (2007). “This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a ... challenge to the applicability of a statute to his conduct).” U.S.S.G. § 3E1.1, comment, (n.2).

Petruk was “not the rare defendant who goes to trial to assert and preserve issues that do not relate to factual guilt.” United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015) (quotations omitted). He argued to the district court that he went to trial primarily to challenge (successfully) the government’s interpretation of the federal carjacking statute. The district court rejected this contention, finding that his “reason for going to trial was not solely to preserve some legal issue, at least that wasn’t articulated to the Court.” The court explained:

There is simply no evidence, pretrial, of any clear acceptance of responsibility .... He could have pled guilty to [the obstruction] offense; but at a minimum, he could have acted in a way which didn’t put the Government to proof of the facts of this offense by stipulating to those facts, by not cross-examining witnesses. That’s not what happened here. The Government had to prove the facts of this offense. And again, [the obstruction] offense was not one that the Defense was seeking to preserve a legal defense about. And finally, there is no evidence pretrial, as there was in Spur-lock, of any remorse or acceptance of the wrongful conduct.

On appeal, Petruk argues that he nevertheless clearly accepted responsibility in a post-conviction letter to the district court, which acknowledged guilt. However, the acceptance-of-responsibility “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment, (n.2).

“A district court’s factual determination about whether the defendant accepted responsibility is entitled to great deference, and we will reverse it only if it is so clearly erroneous as to be without foundation.” Spurlock, 495 F.3d at 1014. Here, there was no clear error.

The judgment of the district court is affirmed.

      . The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota.

      . Petruk's suggestion that § 2J1.2(b)(3)(C) should be limited to "significant large-scale white collar obstructionist behavior” because 18 U.S.C. § 1512(c)(2) was enacted in the Sarbanes-Oxley Act, Pub. L.-107-204 (2002), is without merit. On their face, § 1512(c)(2) and § 2Jl.2(b)(3)(C) apply to conduct that corruptly obstructs any federal "official proceeding.”


text:
    Zackary Lee STEWART, Plaintiff-Appellee v. Karl WAGNER, Matt Selby, Defendants-Appellants
    No. 15-2394
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 9, 2016
    Filed: September 12, 2016

      John R. Lightner, Baird Lightner Mill-sap, P.C., Springfield, MO, argued ( Patrick R. Baird, on the brief), for appellants.
    Steve B. Garner, Strong-Garner-Bauer, P.C., Springfield, MO, argued ( Grant S. Rahmeyer, Strong-Garner-Bauer, P.C., Springfield, MÓ, Brian F. McCallister, The McCallister Law Firm, Kansas City, MO, Scott R. Pettit, Pettit Law Office, P.C., Aurora, MO, on the brief), for appellee.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

In 2008, a Missouri jury convicted Zack-ary Stewart of murdering David Dulin. On appeal, Stewart argued the trial court erred in denying his motion for new trial based on newly-discovered evidence. The Supreme Court of Missouri agreed, reversed the conviction, and remanded for a new trial. State v. Stewart, 313 S.W.3d 661 (Mo. banc 2010). The charges were dropped when another person confessed to the murder. Stewart then filed this civil damage action against five individuals and Stone County, Missouri, asserting various claims under 42 U.S.C. § 1983 and Missouri state law. Defendants moved for summary judgment. The district court granted summary judgment and dismissed Stone County, the County Sheriff, and the Sheriffs criminal investigation supervisor. The court denied the motions of Stone County Prosecutor Matt Selby, lead investigator Karl Wagner, and investigator Orville Choate, who has not appealed, rejecting their claims of absolute, qualified, and official immunity. Selby and Wagner appeal. We reverse in part and remand.

I. Jurisdiction and the Issues on Appeal.

“An interlocutory order denying qualified immunity is immediately appeal-able to the extent that it turns on an issue of law. If the order turns on issues of fact, rather than an abstract issue of law, we lack jurisdiction over the appeal because the decision is not a final order immediately appealable under the collateral order doctrine.” Aaron v. Shelley, 624 F.3d 882, 883-84 (8th Cir. 2010) (citation and quotations omitted). We also lack jurisdiction over pendent interlocutory claims under state and federal law unless those claims are “inextricably intertwined with the collateral order that is properly appealed, or where review [is] necessary to ensure meaningful review of the properly appealed issue.” Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996).

Here, Selby properly appeals the denial of qualified immunity and absolute prosecutorial immunity from Stewart’s § 1983 due process claim based on the alleged fabrication of false testimony by a witness at Stewart’s preliminary hearing. Selby and Wagner properly appeal the denial of qualified immunity from Stewart’s § 1983 Sixth Amendment claims for actions that resulted in testimony by jailhouse informants at his criminal trial. However, we decline Selby’s further invitation to review the district court’s denial of (i) § 1983 claims that Selby has not briefed, such as Stewart’s § 1983 conspiracy claim; and (ii) Stewart’s state law claims. This opinion should not be construed as expressing our view on any of these other claims, with the following exception:

Stewart claims that investigators Wagner and Choate violated his right to due process as defined in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when they caused the prosecution not to disclose evidence that would have been favorable to the defense at Stewart’s trial. The summary judgment record is replete with material fact disputes regarding these claims, and Wagner has not appealed the denial of qualified immunity. However, we note that, while a prosecutor’s duty to disclose is absolute, to recover damages from other law enforcement officials for a Brady violation, a § 1983 plaintiff must prove the requisite mens rea. In denying investigators Wagner and Choate summary judgment on this claim, the district court adopted the amorphous “bad faith” mens rea standard set forth in White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008), rather than the more precise standard adopted in our earlier, and therefore controlling, opinion in Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) — “Brady ensures that the defendant will obtain relief from a convictipn tainted by the State’s nondisclosure of materially favorable evidence, regardless of fault, but the recovery of § 1983 damages requires proof that a law enforcement officer other than the prosecutor intended to ' deprive the defendant of a fair trial.” (Emphasis added.) The district court must apply this controlling standard when the issue again arises on remand, whether before, during, or after trial.

II. The “Fabricated Evidence” Claim.

On November 29, 2006, Dulin called 911 from his home in Stone County and reported that he had been shot with his own .22 caliber handgun by two men in their twenties or thirties, and that one identified himself as the boyfriend of an “Eby girl from Hurley.” Dulin died at the scene. The Stone County Sheriffs Office assigned Wagner as lead detective in the homicide investigation.

The investigation focused on Dulin’s statement that the boyfriend of an “Eby girl from Hurley” was involved. Stewart, then eighteen years old, was the son of Paula Eby of Hurley. His sisters were Candy Seaman, married to but separated from Tim Seaman, and Christy Pethoud, then living with her boyfriend, Leo Con-nelly. Though Pethoud’s last name was not “Eby,” the investigation treated her as an “Eby girl.” Interviewed on December '1, Stewart told investigators that he spent the night in question at the home of Peth-oud and Connelly, and that Tim Seaman was married to his sister, Candy Seaman.

On March 15, 2007, Alicia Kimberling arrived at the Stone County Judicial Center for a probation appointment. Wagner learned that Kimberling had said Leo Con-nelly was involved in the homicide. He arrested her for an unresolved probation violation and interviewed her. Kimberling identified Connelly and Pethoud as Dulin’s killers but did not claim Stewart was involved. Wagner told her Stewart was a suspect and Stewart and Connelly were together that night. She agreed to assist the investigation after learning about potential rewards for cooperating. Wagner provided Kimberling with devices to record conversations with Connelly, Candy Seaman, and Stewart on March 16, 17, and 20. The recordings provided no incriminating evidence.

On March 27, after Selby had discussed a plea agreement with Kimberling’s attorney, Selby and Wagner interviewed Kim-berling. She incriminated Stewart for the first time, claiming that she saw Stewart, Connelly, and Pethoud in a car shortly after the homicide; that Connelly was covered in blood; that Stewart was in the back of the car; and that she saw a gun. At this point in the recorded interview, Kimber-ling stopped answering questions and said: “I’m scared.... I’m so scared to talk to you guys.” Selby responded:

You know, Alicia, you’re not — I don’t think by talking you’re increasing anything that you have to be scared of, you know what I’m saying? I mean, the things that you’ve already talked about would put you in the position of being a witness. Okay? So to tell everything you know is not going to make things any worse, but if it’s more helpful to us, it’s going to be more helpful to you.

Also on March 27, Wagner questioned Stewart about the Dulin homicide; Stewart denied involvement or knowledge. On March 29, Wagner completed an affidavit or statement of probable cause, reciting what Kimberling said to implicate Stewart at the March 27 interview. The statement did not report that she had implicated Pethoud and Connelly, but not Stewart, at the initial interview. That day, Selby filed murder charges against Stewart and Con-nelly based on the probable cause statement; Stewart, in the middle of serving a two-week jail sentence for DWI, was detained on the murder charge. Some weeks later, Kimberling testified at the preliminary hearing. She did not testify at Stewart’s trial.

Count I of Stewart’s Second Amended Complaint included the § 1983 claim that Prosecutor Selby and Detective Wagner procured Kimberling’s fabricated statements to create probable cause when none existed. Stewart’s Suggestions in Opposition to defendants’ summary judgment motions argued this part of his claims in Count I as a violation of his right to substantive due process. In denying defendants’ motions for summary judgment, the district court concluded that “Wagner’s reliance on the portions of Alicia Kimber-ling’s statements that corroborated the theory of the case that Zack Stewart committed the murder, but ignored her contradictory statements without further investigation violated [Stewart’s] due process rights.” On appeal, Selby argues the court erred in denying his motion for summary judgment on this claim. ‘Whether a substantive due process right exists is a question of law.” Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (en banc).

Because the Supreme Court is “reluctant to expand the concept of substantive due process,” it has held “that where a particular Amendment provides an explicit textual source of constitutional protections against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing those claims.” County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citations and quotation omitted). Therefore, a § 1983 plaintiffs claim that he was arrested or prosecuted without probable cause, even if labeled a claim of malicious prosecution, “must be judged” under the Fourth Amendment, not substantive due process. Albright v. Oliver, 510 U.S. 266, 270-71 & n.4, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion joined by seven Justices on this issue). We recognized in Moran that additional considerations in a particular case may trigger substantive due process protection, like the impact of “falsely-created evidence and other defamatory actions” on a public employee plaintiffs career, and the equal protection interest in not being investigated or punished on account of race, that were present in that case. 296 F.3d at 645. But here, Stewart was not a public employee; race was not an issue, and the alleged fabricated evidence was only used in a probable cause statement. Thus, the general rule in Oliver applies, and the district court committed an error of law in not judging the actions of Selby and Wagner under the Fourth Amendment.

Stewart’s Suggestions in Opposition to summary judgment made only a cursory reference to one Fourth Amendment precedent, Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). He made no showing that the Fourth Amendment required Wagner to disclose all of Kimberling’s statements in a probable cause statement, and no showing that Wagner and Selby did not have arguable probable cause to arrest, the governing Fourth amendment standard. See New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015). “The evaluation of evidence to determine if probable cause exists is not an exact sci ence.” Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.). cert. denied, 519 U.S. 867, 117 S.Ct. 179, 136 L.Ed.2d 119 (1996). Qualified immunity “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quotations omitted). We note that the preliminary hearing at which Kimberling testified was nearly two months after charges were filed based on Wagner’s probable cause statement. Stewart did not gain pretrial release or dismissal of the charges at that hearing, which strongly suggests that the presence of arguable probable cause was overwhelming.

On this record, we conclude it was error to deny Prosecutor Selby qualified immunity on this claim because Stewart failed to present sufficient evidence that Wagner and Selby violated “clearly established [Fourth Amendment] rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); cf. Morris v. Lanpher, 563 F.3d 399, 403 (8th Cir.), cert. denied, 558 U.S. 970, 130 S.Ct. 472, 175 L.Ed.2d 309 (2009). Given this conclusion, we need not consider Selby’s alternative argument that he is entitled to absolute immunity from this claim.

III. The Sixth Amendment Claims.

On the afternoon of March 30, Victor Parker and Coty Pollard, Stewart’s cell mates, told Wagner they had information on the Dulin homicide but said they wanted their lawyer present when they disclosed the information and a benefit in exchange for providing it. Parker told Sel-by at a second interview on April 3 that Wagner told him to “find out anything you can.” After being approached by Parker and Pollard, Wagner questioned Stewart about his statements to his cellmates. Stewart said, “I didn’t tell em nothin, I don’t know nothin. I need to speak with an attorney.” Wagner then asked Selby if he could arrange for Parker and Pollard’s lawyer to be present while they were questioned; Parker and Pollard were returned to their cell with Stewart. Between March 30 and April 3, Parker repeatedly questioned Stewart about the Dulin. homicide and encouraged Stewart to implicate himself in the murder, despite Stewart’s insistence he was not involved.

On April 3, Wagner and Selby interviewed Parker. During this interview, Parker offered to question Stewart about the murder. Wagner said, “we can’t really ask you to go back there and dig for anything, I would say if you do happen to hear anything, I would really like to hear about it but I can’t ask you to go back there and ask questions specifically.” Selby added, “if you do anything on law enforcement’s behalf, [it’s] just as if the law enforcement was doing it themselves.... [0]n the other hand, I don’t think there’s any obligation that just because he’s talking to you that we have to move you out of there.” Selby told Parker he did not need to “put [his] pillow over [his] ears if [Stewart] starts talking or anything.” Parker and Pollard testified at Stewart’s trial and were, in Selby’s words, the “key witnesses.” See Stewart, 313 S.W.3d at 665-66. Stewart’s only trial witness was his sister, Pethoud, who testified that Stewart stayed overnight at her house on the night of the murder. Id. at 664.

Once the adversary judicial process has been initiated, the Sixth amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings, including interrogation by the State. See United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); Massiah v. United States, 377 U.S. 201, 204-05, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the Supreme Court stated the applicable standard when the issue is whether trial testimony of a jailhouse informant should be suppressed for violation of this principle:

Since the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached, a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

(Quotations and citation omitted.) Applying this principle, we have held that, to establish a Sixth Amendment violation warranting suppression of statements made to a jailhouse informant, defendant must show (1) “his right to counsel had attached,” (2) the informant “was a government agent,” and (8) the informant “deliberately elicited incriminating statements from him.” Moore v. United States, 178 F.3d 994, 999 (8th Cir.), cert. denied, 528 U.S. 943, 120 S.Ct. 356, 145 L.Ed.2d 278 (1999).

Stewart claims Wagner and Selby violated his Sixth and Fourteenth Amendment right to counsel when they obtained a false confession “through the use of jailhouse snitches Pollard and Parker as [their] agents.” The district court denied Wagner and Selby qualified immunity from this claim because there exists “genuine issues of material fact as to whether [they] violated Stewart’s Sixth Amendment right to counsel by directing Parker to glean additional information from Stewart after he had invoked his right to counsel, and by sending Parker and Pollard back into the same cell with Stewart after he had invoked his right to counsel, thereby creating a ‘situation likely to induce’ [Stewart] to make incriminating statements.”

If this were an appeal from the denial of a motion to suppress or exclude the testimony of Parker and Pollard, or from the denial of a properly preserved federal ha-beas claim, we might well agree there is sufficient evidence of a Sixth Amendment violation under Kuhlmann to warrant a full trial of this claim. But this is the appeal from the denial of qualified immunity from a § 1983 claim. Neither the district court nor Stewart cited, and we have not found, a reported federal decision discussing the elements of a § 1983 Sixth Amendment claim based on use of a jailhouse informant’s testimony at trial, and the proper application of qualified immunity principles to such a claim. The absence of such precedent is not dispositive but is clearly relevant.

Because qualified immunity protects all but the incompetent, and knowing violators, “[w]e do not require a case directly on point before concluding [the § 1983 defendant violated] clearly established [law], but existing precedent must have placed the statutory or constitutional question beyond debate.” Stanton v. Sims, — U.S. —, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013), quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). Here, the Supreme Court and Eighth Circuit cases most directly on point, Kuhlmann and Moore, require Stewart to prove that Wagner and Selby took action “that was designed deliberately to elicit incriminating remarks,” not merely listening, thereby making Pollard and Parker government agents. “An informant becomes a government agent for purposes of [the Sixth Amendment’s protection against deliberate government elicitation] only when the informant has been instructed by the [government] to get information about the particular defendant.” Moore, 178 F.3d at 999 (quotation omitted). Here, according to Parker, Wagner told him to “find out anything you can” a few hours after Selby filed charges against Stewart — which started the “adversary judicial process” for purposes of Massiah — but before Stewart invoked his right to counsel for the first time after cooperating with investigators for some four months.

The following facts are undisputed: (i) Parker and Pollard came to Wagner the afternoon of the day Stewart was first charged, offering to provide information that Stewart had volunteered the night before, which turned out to be a confession that he participated in the murder but lacking details; (ii) before that, Stewart had repeatedly talked to Wagner about the murder without invoking his right to counsel; (iii) according to Parker, Wagner told ' him to “find out anything you can” from Stewart; (iv) Wagner immediately told Stewart that his cell mates said he had confessed; and Stewart invoked his right to counsel; (v) when Wagner and Selby met with Parker and Pollard a few days later, they instructed the informants to continue listening but not to elicit statements from Stewart, because that would be “just as if the law enforcement was doing it themselves;” (vi) they then put Pollard and Parker back in Stewart’s cell.

Wagner and Selby testified they were aware of and believed their actions at the April 3 interview did not violate Stewart’s Sixth Amendment rights. Even if Wagner had encouraged Parker to be more than a “listening post” at the March 30 meeting (a disputed issue of fact), Wagner immediately told Stewart that his cell mates were reporting what he said, fair warning not to talk to them if he was invoking his right to counsel. The judgment of Wagner and Sel-by on this issue may have been wrong, but Kuhlmann and the earlier cases it applied create a very indistinct line between aggressive use of jailhouse informants that does and does not violate the Sixth Amendment rights of a defendant who has just been charged and invokes his right to counsel. And there were no § 1983 precedents giving these defendants “fair and clear warning of what the Constitution requires,” al-Kidd, 131 S.Ct. at 2086-87 (quotations omitted), and therefore no “existing precedent [that] placed the statutory or constitutional question beyond debate,” Stanton, 134 S.Ct. at 5. In such circumstances, suppression, not § 1983 damage liability, is the appropriate remedy. Cf. Hannon v. Sanner, 441 F.3d 635, 638 (8th Cir. 2006).

There is another fundamental reason why Wagner and Selby deserve qualified immunity from this § 1983 damage claim. Stewart failed to put in the summary judgment record evidence of whether defense counsel at trial moved to suppress or exclude testimony by Parker and Pollard because it was obtained in violation of the Sixth Amendment; if so, how the trial court ruled; and whether the issue was then pursued on direct appeal. If the motion was made and denied, that would at least establish there was no clearly established violation of the Sixth Amendment. If the motion was made and granted, the ruling would only have excluded testimony by Parker and Pollard after they were effectively functioning as government agents; any “confession” they heard before then would not be excluded, leaving Stewart unable to prove § 1983 injury causation. If the motion was not made at all, then any injury to Stewart from the trial testimony of Parker and Pollard was caused by the supervening ineffective assistance of trial and/or appellate counsel. There is no constitutional tort without injury. Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir. 1994).

For these reasons, we conclude the district court erred in denying Wagner and Selby qualified immunity from this Sixth Amendment damage claim, and we need not consider Selby’s alternative absolute immunity contention.

The order of the district court dated June 12, 2015, is reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion.

      . Selby argues that he is entitled to official immunity under Missouri law for his performance of discretionary acts as a prosecutor. But he cites no authority, as he must, establishing that interlocutory denials of official immunity under state law are collateral orders within our limited appellate jurisdiction. In addition, Missouri’s official immunity doctrine shields only negligent acts. Davis v. Lambert-St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). The district court found genuine issues of material fact as to whether Stewart could prove intentional misconduct, not merely negligent acts.


author: PER CURIAM:

text:
    ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant, v. U.S. FOOD & DRUG ADMINISTRATION, Defendant-Appellee.
    No. 13-17131
    United States Court of Appeals, Ninth Circuit.
    Submitted En Banc August 26, 2016  San Francisco, California
    Filed September 2, 2016

      Monte M.F. Cooper, Derek F. Knerr, and Scott Lindlaw, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California, for Plaintiff-Appellant.
    Dara S. Smith and Michael S. Raab, Attorneys, Appellate Staff; Victoria R. Carradero, Assistant United States Attorney; Civil Division, Department of Justice, Washington, D.C.; for Defendant-Appel-lee.
    Caitlin Zittkowski and Cristina R. Stella, San Francisco, California, as and for Ami-cus Curiae Center for Food Safety.
    Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT, ALEX KOZINSKI, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JAY S. BYBEE, MILAN D. SMITH, Jr., MORGAN CHRISTEN, JACQUELINE H. NGUYEN and JOHN B. OWENS, Circuit Judges.

       The en banc court unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

   OPINION

PER CURIAM:

We voted to rehear this case en banc to reconsider our circuit precedent on the standard of review applicable to summary judgment decisions in cases brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We agree with the three-judge panel that the appropriate standard of review is de novo.

We adopt and reiterate the reasoning set' forth by the three-judge panel in its concurrence. Under our usual practice, “[w]e review the district court’s grant or denial of motions for summary judgment de novo.” Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 908 (9th Cir. 2016) (citing Besinga v. United States, 14 F.3d 1356, 1359 (9th Cir. 1994)). Thus, on appellate review, we employ the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). See Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). As required by that standard, we view the evidence in the light most favorable to the nonmoving party, determine whether there are any genuine issues of material fact, and decide whether the district court correctly applied the relevant substantive law. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

Most FOIA cases are resolved by the district court on summary judgment, with the district court entering judgment as a matter of law. See Wickwire Gavin, P.C. v. U. S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004). But some FOIA cases require resolution of disputed facts. See, e.g., GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1110 (9th Cir. 1994) (requiring a factual determination of substantial competitive harm). In those cases, we have employed a different summary judgment standard, as we described in Yonemoto v. Department of Veterans Affairs:

[I]n essence, we treat the-judgment as if it were a bench trial: We first determine, de novo, “whether an adequate factual basis exists to support the district court’s decisions.” If not, we must remand for further development of the record. If such a basis does exist, “then the district court’s conclusions of fact are reviewed for clear error” — which is the way in which the proceeding is treated like a bench trial — “while legal rulings, including its decision that a particular exemption applies, are reviewed de novo.”

686 F.3d 681, 688 (9th Cir. 2012) (footnote and citations omitted).

This “two-step test,” Lion Raisins Inc. v. U.S, Dep’t of Agric., 354 F.3d 1072, 1078 (9th Cir. 2004), began with Church of Scientology of California v. U.S. Department of the Army, 611 F.2d 738 (9th Cir. 1979), in which we borrowed the “clearly erroneous” standard from the D.C. Circuit, id. at 743 (citing Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 n. 13 (D.C. Cir. 1977)). However, the D.C. Circuit has long since abandoned this standard and, instead, now reviews summary judgment decisions in FOIA cases de novo, as in all other cases. See Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992). The First, Second, Sixth, Eighth, and Tenth Circuits also apply de novo review to district court FOIA summary judgment decisions.

In reviewing our precedents, as well as those of our sister circuits, we conclude there is no principled distinction to be drawn between our usual summary judgment standard and the standard to be applied in FOIA cases. We have noted the oddity of this analytic difference: “By definition, summary judgment may be granted only when there are no disputed issues of material fact, and thus no factfinding by the district court.” Yonemoto, 686 F.3d at 688 n.5 (citing Fed. R. Civ. P. 56(c)). Thus, where the district court has made a factual determination, summary judgment cannot be appropriate.

In short, there is “no compelling reason to depart from a pure de novo standard,” Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999), when reviewing FOIA summary judgment decisions. We agree with the Second Circuit that de novo review fits better with the policy and purpose of FOIA:

In striking a balance between the incompatible notions of disclosure and privacy when it enacted FOIA in 1966, Congress established — in the absence of one of that law’s clearly delineated exemptions — a general, firm philosophy of full agency disclosure, and provided de novo review by federal courts so that citizens and the press could obtain agency information wrongfully withheld. De novo review was deemed essential to prevent courts reviewing agency action from issuing a meaningless judicial imprimatur on agency discretion.

Id.

Accordingly, we adopt a de novo standard of review for summary judgment decisions in FOIA cases. Church of Scientology, 611 F.2d at 743, and our other decisions to the contrary are overruled.

Consistent with our usual procedure, if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing. Resolution of factual disputes should be through the usual crucible of bench trial or hearing, with evidence subject to scrutiny and witnesses subject to cross-examination. The district court must issue findings of fact and conclusions of law. Fed. R. Civ. P. 52(a)(1). Our review remains the same as in all civil cases: we review the findings of fact for clear error and the conclusions of law de novo. See OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1096 (9th Cir. 2011).

We confine our en banc consideration to the question of controlling circuit precedent. We decline as an 'en banc court to reach any other issue presented by the parties. The three-judge panel that heard the appeal was bound by the standard articulated in Church of Scientology and issued its opinion based on that assumption. In issuing our order granting rehearing en banc, we declared that the three-judge panel opinion should not be cited as precedent by or to any court of the Ninth Circuit. Animal Legal Def. Fund v. FDA, 835 F.3d 891, No. 13-17131, 2016 WL 4120696 (9th Cir. Aug. 3, 2016). With this correction of our precedent, en banc proceedings with respect to this case are terminated, and we return control of the case to the three-judge panel. The panel will resolve the merits issues in this ease and will issue a new or an amended opinion.

REMANDED.

      . If "the parties do not dispute that the court had an adequate basis for its decision, we review de novo the court's conclusion” that the documents are exempt from disclosure. Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1222 (9th Cir. 2001) (emphasis added) (citation omitted).

      . See Church of Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir. 1994); Halpern v. FBI, 181 F.3d 279, 287-88 (2d Cir. 1999); Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1078 (6th Cir. 1998); Missouri ex rel. Garstang v. U.S. Dep’t of Interior, 297 F.3d 745, 749 (8th Cir. 2002); Sheet Metal Workers Int’l Ass'n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 997 (10th Cir. 1995). The Third, Fourth, Fifth, Seventh, and Eleventh Circuits appear to use the same "clearly erroneous” standard that we have. See Lame v. U.S. Dep’t of Justice, 767 F.2d 66, 70 (3d Cir. 1985); Willard v. IRS, 776 F.2d 100, 104 (4th Cir. 1985); Stephenson v. IRS, 629 F.2d 1140, 1144 (5th Cir. 1980); Antonelli v. DEA, 739 F.2d 302, 303 (7th Cir. 1984) (per curiam); Chilivis v. SEC, 673 F.2d 1205, 1210 (11th Cir. 1982).

      . All pending motions are DENIED as moot, without prejudice to renewal before the three-judge panel,