United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 4, 2004
_____________________ Charles R. Fulbruge III
Clerk
No. 03-50288
No. 03-50919
_____________________
JOHN DOE #1, for and on behalf of themselves
and a Class of Others Similarly Situated;
JOHN DOE #2, for and on behalf themselves and
a Class of Others Similarly Situated;
TEXAS FARM BUREAU; THE AMERICAN FARM BUREAU FEDERATION;
JOHN DOE #3,
Plaintiffs - Appellees,
versus
ANN M. VENEMAN, in her official capacity as
Secretary of the United States Department of Agriculture;
WILDLIFE SERVICES; ANIMAL AND PLANT HEALTH INSPECTION SERVICE;
UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendants - Appellants,
versus
ANIMAL PROTECTION INSTITUTE,
Intervenor Defendant - Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before DeMOSS, STEWART and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge.
These appeals arose from a lawsuit in which a group of
farmers and ranchers sought to prevent the United States
Department of Agriculture (USDA) from releasing certain
1
government records to the Animal Protection Institute (API) in
response to API’s Freedom of Information Act (FOIA) request. The
district court entered an injunction preventing release of
certain information, and the USDA and the API appealed.
History of the Lawsuit
The lawsuit underlying these appeals is a "reverse-FOIA"
action. In a reverse-FOIA action, a plaintiff seeks to prevent a
governmental agency from releasing information to a third party
in response to the third party’s request for information under
FOIA.1 In this lawsuit, a group of farmers and ranchers sought
to prevent the release of information sought by API through a
FOIA request.
In November 1997, the API, an animal advocacy group,
submitted a FOIA request to the USDA for certain documents
maintained by a USDA agency, the Animal and Plant Health
Inspection Service (APHIS). The API sought copies of a form
entitled “Application Data Report (Livestock Protection Collars)”
from every state in which the Livestock Protection Collar (LPC)
has been used.
Livestock owners use the LPC to protect sheep and goats in
fenced pastures from coyotes who frequently attack by biting an
animal’s neck. The LPC consists of a bladder containing a toxic,
restricted-use pesticide that is attached to an animal’s neck
1
See AM. JUR. 2D Freedom of Info. Acts § 609 (2004).
2
with a velcro strap. If a coyote bites the animal’s neck and
punctures the bladder, the coyote will be poisoned.
Employees of a USDA agency, Wildlife Services (WS), apply
LPCs to animals as a service to farmers and ranchers. Livestock
owners using this service enter into Cooperative Agreements with
WS under which they share the cost of the LPCs and allow WS to
enter their properties to apply the collars. As a result, the
participants in the LPC program are called “Cooperators.”
Cooperators may be individuals, businesses, or governmental
entities.
A Cooperative Agreement contains the Cooperator’s name,
address, telephone number, ranch or farm name, the property
owner’s name and address, the land class and size, and a
Cooperative Agreement number. The form sought by API contains
only the name and location of the ranch or farm where the collars
have been applied and the Cooperative Agreement number.
In response to API’s request for these forms, APHIS released
LPC records for the six states where the LPCs have been used, but
redacted the names and locations of the ranches and farms where
the collars have been applied, citing Exemption 6 of FOIA. Under
Exemption 6, federal agencies may withhold from disclosure any
“personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
3
privacy.”2 Dissatisfied with the redacted records, API sought an
administrative appeal on June 24, 1999. In August 1999, when the
appeal was still unresolved, API filed a FOIA lawsuit against WS
in federal court in the District of Columbia. In a FOIA lawsuit,
a plaintiff who has unsuccessfully sought information through a
FOIA request seeks to force the disclosure of the requested
information. After API filed its lawsuit, the Office of General
Counsel of the USDA determined the records could be released
without redaction.
Before a release occurred, the appellees, three John Doe
plaintiffs and two associations representing farmers and ranchers
(the Doe plaintiffs), sued the USDA, APHIS and WS (collectively,
the government), on November 1, 1999, in the Western District of
Texas. The Doe plaintiffs sought to prevent the release of
information that could identify them as participants in the LPC
program. The district court immediately granted a temporary
restraining order (TRO) enjoining APHIS from releasing the
personal information of individuals, entities, and applicators3
using LPCs or enrolled in the Livestock Protection Program. The
2
5 U.S.C. § 552(b)(6).
3
An individual who is authorized to use a restricted-use
pesticide, such as the pesticide used in the LPC collar, is
referred to as an applicator. To use a restricted-use pesticide,
an individual must be certified through an Environmental
Protection Agency approved program. See 7 U.S.C § 136(e); 7
U.S.C. § 136i.
4
TRO was converted to a preliminary injunction on November 15,
1999.
The government moved to transfer the Doe case to the D.C.
district court where API’s lawsuit was pending, or alternatively
to stay the Doe action. The district court denied the motion in
January 2000, but the D.C. district court stayed API’s lawsuit in
June 2000 pending disposition of the Doe lawsuit. API then moved
to intervene in the Doe lawsuit.
Before the Doe plaintiffs filed their lawsuit, a third
litigation began that served as the basis for an amendment to the
Doe complaint. In January 1999, an environmental group called
Forest Guardians submitted a FOIA request to APHIS for a computer
diskette copy of the management information system (MIS) database
used as the basis for all WS annual reports for 16 states. The
MIS database contains information about the LPC program and
similar agreements for participants of other USDA wildlife
control programs, including Cooperator names and addresses,
agreement numbers, and county and acreage information about
Cooperator property. Because of the prohibitive cost and the
disruption the requested download would cause, APHIS attempted to
persuade Forest Guardians to narrow its request. Dissatisfied
with this response, Forest Guardians sued APHIS in March 1999 in
the District of New Mexico. APHIS and Forest Guardians quickly
began settlement negotiations.
5
In the process of reaching a settlement, APHIS began to
release partial sets of reports generated from the MIS database.
In the first two releases, in October 1999 before the Doe suit
was filed, APHIS redacted the names and addresses of private
Cooperators, citing Exemption 6. APHIS made a third release in
November 1999. That release consisted of reports using data from
states that did not participate in the LPC program. The names
and farm or ranch addresses of private Cooperators were not
redacted. APHIS’s third release was based on guidance from
USDA’s Office of General Counsel that the names and addresses of
persons or entities dealing with the government in a business
capacity should generally not be withheld under Exemption 6.
In December 1999, Forest Guardians agreed to settle its
lawsuit and to forgo MIS reports from states participating in the
LPC program. In exchange, APHIS agreed not to withhold
information from remaining records under Exemption 6. When the
Doe plaintiffs learned of the pending settlement, they amended
their complaint. Through the amendment, filed on January 11,
2000, the Doe plaintiffs sought to prevent release of personal
Cooperator information in response to Forest Guardians’ FOIA
request, and any other FOIA requests seeking personal Cooperator
information. Because the amendment sought to prevent disclosure
of all personal Cooperator information, not just the information
in LPC application records, the amendment considerably broadened
6
the relief API originally sought.
In response to the amendment and a second request for a TRO,
the district court in the Doe case issued a new TRO on January
11, 2000 and expanded the previous preliminary injunction on
February 9, 2000. The expanded injunction prohibited the
government from disclosing any information that would allow the
recipient to obtain or deduce the identity of Cooperators. On
August 8, 2000, the district court certified a plaintiff class
consisting of all individuals or entities who have been
Cooperators4 since January 1, 1990.
Forest Guardians also finalized its settlement negotiations
with APHIS in August 2000. To settle on terms that would not
violate the expanded preliminary injunction, Forest Guardians
agreed to settle for release of only one type of report from the
MIS database – county summary reports – with Cooperator
identifying information redacted. Under the settlement, the
government agreed to cooperate in the release of further non-
exempt information in the county summary reports if and when the
expanded preliminary injunction in the Doe case was lifted. On
February 27, 2001, Forest Guardians’ claims in the New Mexico
4
Neither the order certifying the class, nor the Doe
plaintiffs’ motion for class certification, defined “Cooperator.”
The plaintiffs’ complaint, however, describes Cooperators as
“ranchers and others who have requested assistance from, or
entered into Cooperative Agreements with, WS to control
predators.”
7
lawsuit were dismissed with prejudice under the settlement.
On September 30, 2002, the district court granted the
government’s motion to dismiss the Doe plaintiffs’ constitutional
claims and the claims based on other pending FOIA requests. The
district court then granted the Doe plaintiffs’ motion for
summary judgment, holding that personal identifying information
about Cooperators was exempted from disclosure under Exemptions
35 and 6 of FOIA, and protected from disclosure by the Privacy
Act.6
The district court entered a permanent injunction on
February 14, 2003. The injunction enjoins the government
from releasing Personal Information [of a Cooperator]
contained in: (a) records regarding the Defendants’
livestock protection collar program, including but not
limited to the following: Pre-Application Inspection
Reports, Application Data Reports, LPC Project
Summaries, LPC Project Data Reports, Records of 1080
Toxic Collar Use, LPC Quarterly Reports; (b) records
regarding the location where restricted use pesticides
have been, or will be, applied in connection with the
Defendants’ activities; and (c) the MIS database or the
records from which information in the MIS database
derives, including written agreements by which
Plaintiff Cooperators authorize the government
Defendants to enter their property.
The injunction defined Personal Information as
information that reveals, directly or in combination
with other information, the identity of a Plaintiff
5
Exemption 3 provides that FOIA does not apply to matters
specifically exempted by statute. See 5 U.S.C. § 552(b)(3).
This exemption is discussed in more detail later in the opinion.
6
See 5 U.S.C. § 552a(g).
8
Cooperator. “Personal Information” includes but is not
limited to, the following: names, addresses, the county
in which a Plaintiff Cooperator is located, the acreage
of the Plaintiff Cooperator’s property, the name of a
Plaintiff Cooperator’s ranch or farm, telephone
numbers, agreement numbers and agreement types.
“Personal Information” includes any type of identifying
information which will allow the recipient of the
information to ascertain the name, address, ranch, or
location of a Plaintiff Cooperator.
In response to this language, API filed a notice of appeal. The
government moved to alter or amend the injunction.
In its motion, the government argued that the permanent
injunction is vague and overbroad. Because it maintained the
injunction prevented coordination among governmental agencies and
cooperation in criminal investigations, the government asked the
court to amend the injunction to avoid unintended consequences.
The district court denied the motion.
The district court then granted a request by the Doe
plaintiffs for attorney’s fees. In awarding attorney’s fees, the
district judge relied on APHIS’s November 1999 release of
information to Forest Guardians. The district court found the
release was a willful and intentional violation of the Privacy
Act that caused mental anguish and emotional injury to the
plaintiffs. The government then filed a notice of appeal.
Together, the appellants challenge all aspects of the injunction
and the award of attorney’s fees.
Whether the District Court Exceeded Its Jurisdiction
In their first issue, the appellants maintain the district
9
court lacked jurisdiction to enjoin the release of personal
information in the MIS database because the Doe plaintiffs’ claim
regarding Forest Guardians’ FOIA request was moot when the
injunction was entered. The appellants contend that the only
request for disclosure properly before the district court was
API’s FOIA request. As a result, the appellants argue that the
district court exceeded its jurisdiction.
In Chrysler Corporation v. Brown, the United States Supreme
Court discussed the circumstances in which a private party may
seek an order enjoining release of government records in response
to a FOIA request.7 The Court explained that because FOIA is
exclusively a disclosure statute, FOIA does not provide a private
right of action to enjoin a governmental agency’s disclosure in
response to a request for information under FOIA.8 Although FOIA
does not permit a private party to enjoin disclosure, the Court
explained that a party seeking to prevent disclosure in response
to a FOIA request may seek judicial review of an agency’s
decision to release information under the Administrative
Procedures Act (APA).9 Under the APA,10 a court can set aside an
agency’s determination if it is “arbitrary, capricious, an abuse
7
Chrysler Corp. v. Brown, 441 U.S. 281 (1979).
8
See Chrysler Corp., 441 U.S. at 292-93.
9
See Chrysler Corp., 441 U.S. at 318.
10
See 5 U.S.C. § 706(2)(A).
10
of discretion, or otherwise not in accordance with law.”11 Thus,
a district court may review an agency decision to release
information under FOIA and set aside that decision if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.”12
Under basic Article III principles, this court can uphold a
district court’s order setting aside an agency determination only
to the extent there was a live controversy before the district
court.13 The exercise of judicial power under Article III of the
United States Constitution depends upon the existence of a case
or controversy.14 Without an actual case or controversy, a
federal court has no jurisdiction.15 Under Article III,
a federal court has neither the power to render
advisory opinions nor “to decide questions that cannot
affect the rights of litigants in the case before
them.” Its judgments must resolve "a real and
substantial controversy admitting of specific relief
through a decree of a conclusive character, as
distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.”16
The usual rule in federal cases is that an actual controversy
11
5 U.S.C. § 706(2)(A).
12
Id.
13
See U.S. CONST. art. III, § 2 (“judicial Power shall extend
to all Cases...and...to controversies”).
14
See Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
15
See Baccus v. Parish, 45 F.3d 958, 961 (5th Cir. 1995).
16
Preiser, 422 U.S. at 401 (citations omitted).
11
must exist at all stages of litigation, not merely at the time
the complaint is filed.17 Where a controversy no longer exists,
a claim based on that controversy is moot.
“In general, a matter is moot for Article III purposes if
the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.”18 To have a legally
cognizable interest in the outcome, a plaintiff must demonstrate
an injury traceable to the defendant that is susceptible to some
judicial remedy.19 “Generally settlement of a dispute between
two parties renders moot any case between them growing out of
that dispute.”20
In the instant case, the issue of the release of personal
information in the MIS database became moot when Forest Guardians
agreed to settle its lawsuit for the release of redacted county
summary reports. Although the Doe plaintiffs were not part of
the settlement, they had no injury traceable to the government
17
See Roe v. Wade, 410 U.S. 113, 124-25 (1973).
18
Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir.
1998).
19
See Baccus, 45 F.3d at 961.
20
ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 (5th
Cir. 1981) (action for declaratory and injunctive relief against
EPA based on claim EPA was exceeding statutory authority in
promulgating and enforcing list of violating facilities was moot,
where suit brought by United States against plaintiff had been
settled and dismissed and EPA had removed plaintiff from its
list).
12
that was susceptible to a judicial remedy because APHIS decided
not to release personal information. A reverse-FOIA suit simply
does not provide the Doe plaintiffs with the remedy they seek.
A plaintiff seeking to prevent disclosure under FOIA may
seek judicial review of an agency’s decision to release
information in response to a FOIA request,21 but a plaintiff has
no remedy until the agency determines it will release requested
information.22 In this case, APHIS did not decide to release the
MIS database or personal Cooperator information contained within
the MIS database. Under the terms of the settlement agreement,
APHIS agreed to release only redacted county summary reports –
that is, reports without personal identifying information. Thus,
APHIS never decided to release the personal information that
forms the basis of the Doe plaintiffs’ amended claims.23
Consequently, the only relevant agency decision was the decision
not to release personal Cooperator information.
Even though APHIS decided not to release personal Cooperator
information, the district court enjoined the release of personal
information contained in the MIS database. By doing so, the
district court acted without an actual controversy and exceeded
21
See 5 U.S.C. § 706(2)(A).
22
See Chrysler Corp., 441 U.S. at 318.
23
APHIS released some personal information, but that
information related to non-LPC states, information not relevant
to the Doe plaintiffs’ claims about API’s FOIA request.
13
the legal basis for review under the APA. As a result, the
district court exceeded its jurisdiction by enjoining the
government from releasing personal information in the MIS
database.
The Doe plaintiffs argue on appeal that their claim about
personal information in the MIS database was not moot because
they also challenged the USDA policy which would have permitted
release of the information requested by Forest Guardians. The
second amended complaint does not support that argument. The
second amended complaint specifically complains about Forest
Guardians’ request for the MIS database information and
identifies “the Forest Guardian Suit and Other Pending FOIA
Requests” as the fifth and sixth claims for relief. Although the
amended complaint also refers to a change in the government’s
interpretation of Exemption 6, the references cannot be
reasonably interpreted as asserting a challenge to the policy.
Instead, the references constitute factual allegations that
support the Doe plaintiffs’ request for the district court’s
review of APHIS’s decision to release information to Forest
Guardians. These factual allegations did not create a
controversy for the district court to resolve.
The Doe plaintiffs also contend their claims about personal
information in the MIS database are not moot because the
settlement agreement included a promise that APHIS would release
14
further non-exempt information in the county summary reports if
and when the expanded preliminary injunction in the Doe case is
lifted. Because they maintain APHIS has not made full disclosure
under the settlement agreement, the Doe plaintiffs contend the
claim was not moot.
Although the Doe plaintiffs maintain the government has not
fully complied with the settlement agreement, the promise in the
settlement agreement does not preserve a live issue for
resolution by the district court. Under the settlement, APHIS
promised
to cooperate with [Forest Guardians] to produce within
a reasonable time given the amount of review and
redaction any additional non-exempt information
withheld from county summary reports . . . if and when
the injunction issued by the Texas District Court is
lifted or vacated, in accordance with the requirements
of any court order lifting or vacating that injunction.
Rather than serving as a self-executing commitment to release
information upon the lifting of the injunction, this language
represents a promise to cooperate with future FOIA requests for
non-exempt information. Any releases of MIS material to Forest
Guardians will depend on Forest Guardians’ renewed expression of
interest and a determination of releasability at that time. If
Forest Guardians expresses that interest, and the government
decides to release additional information, the Doe plaintiffs
will then have a basis for a reverse-FOIA lawsuit concerning the
release.
15
Whether Exemption 3 Applies to API’s FOIA Request
In addition to enjoining the government from disclosing
personal information in the MIS database, the district court
enjoined WS from releasing Cooperators’ personal information
contained in records regarding the LPC program. The district
court determined such information is exempted from disclosure
under Exemption 3 of FOIA. Although the government maintained
below that Exemption 3 does not apply to API’s FOIA request, it
now agrees the exemption applies. API, however, challenges this
finding on appeal.
Exemption 3 provides that FOIA
does not apply to matters that are . . . specifically
exempted from disclosure by statute . . ., provided
that such statute (A) requires that the matters be
withheld from the public in such a manner as to leave
no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to
particular types of matters to be withheld.24
The district court found that the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA)25 prohibits disclosure of the
information API sought.
FIFRA establishes a comprehensive scheme for registering and
regulating pesticides in order “to provide for the protection of
man and his environment.”26 As part of the registration scheme,
24
5 U.S.C. § 552(b)(3) (emphasis added).
25
7 U.S.C. §§ 136-136y.
26
S. REP. No. 92-838 (1972), reprinted in 1972 U.S.C.C.A.N.
3993, 3995.
16
the Administrator of the Environmental Protection Agency (EPA)
classifies pesticides as being for general or restricted use.27
When the Administrator determines that a pesticide may generally
cause “unreasonable adverse effects on the environment,” the
Administrator classifies the pesticide for restricted use.28 The
Administrator’s classification of pesticides as restricted-use is
codified in title 40 of the Code of Federal Regulations.29
The restricted-use pesticide used in LPCs – sodium
fluoroacetate – is classified as a restricted-use pesticide under
title 40.30 To use a restricted-use pesticide like sodium
fluoroacetate, an individual must be certified through an EPA
approved program.31 Individuals who are authorized to use or
supervise the use of restricted-use pesticides are referred to as
certified applicators.32
Section 136i-1 of FIFRA requires certified applicators of
restricted-use pesticides to maintain certain application
records.33 Although these records are available to federal and
27
See 7 U.S.C § 136a(d).
28
See 7 U.S.C. § 136a(d).
29
See 40 C.F.R. § 152.175 (2004).
30
See 40 C.F.R. § 152-175 (2004).
31
See 7 U.S.C. §§ 136(e), 136i.
32
See 7 U.S.C. § 136(e).
33
See 7 U.S.C. § 136i-1(a)(1).
17
state agencies dealing with pesticide use or any health or
environmental issue related to the use of pesticides, FIFRA
prohibits those agencies from releasing data, “including the
location from which the data was derived, that would directly or
indirectly reveal the identity of individual producers.”34
Consequently, FIFRA prohibits the government from releasing data,
including the location from which the data was derived, that
would directly or indirectly reveal the identity of Cooperators
using the LPC because the LPC uses sodium fluoroacetate.35
Because FIFRA prohibits disclosure, the personal information in
the LPC application forms is exempted from disclosure under
Exemption 3 of FOIA.
API, however, maintains Exemption 3 does not apply to its
request because FIFRA’s prohibition applies only to federal
agencies that have accessed applicator records under subsection
(b) of FIFRA’s record-keeping provision.36 That provision states
that:
Records maintained under subsection (a) of this section
shall be made available to any Federal or State agency
that deals with pesticide use or any health or
environmental issue related to the use of pesticides,
on the request of such agency. Each such Federal agency
shall conduct surveys and record the data from
individual applicators to facilitate statistical
analysis for environmental and agronomic purposes, but
34
7 U.S.C. § 136i-1.
35
See 7 U.S.C. § 136i-1.
36
See 7 U.S.C. § 136i-1.
18
in no case may a government agency release data,
including the location from which the data was derived,
that would directly or indirectly reveal the identity
of individual producers. In the case of Federal
agencies, such access to records maintained under
subsection (a) of this section shall be through the
Secretary of Agriculture, or the Secretary's designee.
State agency requests for access to records maintained
under subsection (a) of this section shall be through
the lead State agency so designated by the State.37
Because it maintains that the LPC documents are not records that
WS accesses under this language, API contends FIFRA’s prohibition
against release does not apply to the information it requested
from WS.
API’s interpretation of this language, however, is
illogical. Under API’s interpretation, FIFRA would permit WS to
directly release the application records it maintains as a
certified applicator of a restricted-use pesticide and reveal the
identities of individual agricultural producers, but protect
release if WS forwarded the information to another component of
USDA - the Secretary of Agriculture — which would then forward it
to another federal agency. Not only is this illogical, this
interpretation contradicts the act’s legislative history. The
legislative history indicates that Congress was concerned about
protecting the privacy of farmers who use restricted-use
pesticides.38 Because FIFRA prohibits the government from
37
7 U.S.C § 136i-1(b) (emphasis added).
38
See S. Rep. No. 101-357 (1990), reprinted in 1990
U.S.C.C.A.N. 4656, 4881 (indicating on July 6, 1990 that
“[r]ecords may not be disclosed to anyone other than the
19
releasing data that would reveal the identity of individuals
using the LPC because the LPC uses a restricted-use pesticide,
the district court properly concluded that Exemption 3 precludes
release of the personal information of Cooperators in the LPC
application forms.39
Whether the Injunction Is Vague and Overbroad
The appellants also contend the injunction is vague and
overbroad. Specifically, the appellants complain that the order
enjoins the government from releasing personal information in
“records regarding the Defendants’ livestock protection collar
program;” “records regarding the location where restricted use
employees of the agencies involved”); 136 Cong. Rec. S10902-03,
S10933, 1990 WL 14872 (complaining on July 27, 1990 that proposed
amendment does not adequately protect the privacy of farmers
because it allows persons other than government officials to
access pesticide-use records and exposes farmers to mischief by
activist groups); H.R. Conf. Rep. No. 101-916, at § 145, subtitle
H (1990), reprinted in 1990 U.S.C.C.A.N. 5286, 5459 (advising on
October 22, 1990 that information will be restricted from
disclosure, except to employees of federal and state agencies
that deal with pesticide use or any health or environmental
issues related to the use of such pesticides).
39
The district court also found that Exemption 6 of FOIA and
the Privacy Act protect the personal information of Cooperators
from disclosure. API challenges these determinations in its
appeal. API’s appeal, however, can be resolved without
considering Exemption 6 or the Privacy Act.
Because the district court lacked jurisdiction to enjoin
release of personal information contained in the MIS database,
and because Exemption 3 applies to the personal information in
LPC application forms, this court need not consider API’s
arguments about Exemption 6 or the Privacy Act. Regardless of
whether Exemption 6 applies to personal information in LPC
application forms, or whether the Privacy Act protects the
information, the result would be the same in this case because
Exemption 3 protects the information from disclosure.
20
pesticides have been, or will be, applied;” and “the MIS database
or the records from which information in the MIS database
derives.” The appellants maintain this language is overbroad
because it addresses matters that were not properly before the
district court.
The appellants also complain that the injunction defines
“personal information” as “information that reveals, directly or
in combination with other information, the identity of a
Plaintiff Cooperator.” They further complain that the definition
includes “identifying information which will allow the recipient
of the information to ascertain the name, address, ranch, or
location of a Plaintiff Cooperator.” The appellants argue that
the language defining personal information is vague because the
government has no way of determining what information might allow
a recipient to determine Cooperator identities and locations, and
overbroad because it prohibits the release of the county where
Cooperator property is located.
Rule 65 of the Federal Rules of Civil Procedure requires an
injunction to be “specific in terms; [and] describe in reasonable
detail, and not by reference to the complaint or other document,
the act or acts sought to be restrained.”40 “[T]he scope of
injunctive relief is dictated by the extent of the violation
40
FED. R. CIV. P. 65(d).
21
established. . . .”41 The district court must narrowly tailor an
injunction to remedy the specific action which gives rise to the
order.42 An injunction fails to meet these standards when it is
overbroad or vague.43
[T]he broadness of an injunction refers to the range of
proscribed activity, while vagueness refers [to] the
particularity with which the proscribed activity is
described. “Vagueness” is a question of notice, i.e.,
procedural due process, and “broadness” is a matter of
substantive law.44
In the instant case, the injunction is overbroad because it
covers personal information in the MIS database or records from
which information in the MIS database derives. The release of
personal information in the MIS database was not properly before
the district court when it entered the injunction. As a result,
the district court exceeded the scope of judicial review
permitted under the APA. Where a court enters an injunction that
exceeds the scope of available judicial review, an injunction is
necessarily overbroad because it exceeds the extent of the
violation established.45
41
Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
42
See Valley v. Rapides Parish Sch. Bd., 646 F.2d 925, 942
(5th Cir. 1981).
43
U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d
1236, 1246 (5th Cir. 1975).
44
U.S. Steel Corp., 519 F.2d at 1246 n.19.
45
See Califano, 442 U.S. at 702 (scope of injunctive relief
is dictated by extent of the violation established).
22
The injunction is also overbroad because it covers the
release of personal information in records regarding the location
where restricted-use pesticides have been, or will be, applied.
In their second amended complaint, the Doe plaintiffs complained
about two FOIA requests – API’s request for particular LPC
records and Forest Guardians’ request for the MIS database. The
complaint does not challenge an agency decision to release the
locations where restricted-use pesticides have been, or will be,
applied. Expanding injunctive relief to cover the locations
where restricted-use pesticides have been, or will be, applied,
exceeded the legal basis for judicial review under the APA.
Without an agency decision to release personal information in
“records regarding the location where restricted use pesticides
have been, or will be, applied,” an injunction enjoining such a
release constitutes an impermissible advisory opinion.46
The injunction is also overbroad because it covers all LPC
records. In their second amended complaint, the Doe plaintiffs
sought declaratory judgment that “disclosure of personal
information of the type sought by API in the API Suit” would be
“arbitrary, capricious, and an abuse of discretion, or otherwise
not in accordance with the law.” API sought only LPC application
forms. Where a plaintiff seeks review pursuant to the APA, an
46
See Preiser, 422 U.S. at 401 (federal courts have no power
to render advisory opinions).
23
injunction that enjoins an agency from disclosing more than has
been requested or more than the agency has determined to release
is overbroad because it exceeds the legal basis for the lawsuit.47
Even though the Doe plaintiffs seek declaratory judgment in
regard to the type of information API sought, the APA limits the
Doe plaintiffs to the information API requested – that is, the
request for specific LPC application forms. The district court’s
injunction order is overbroad because it includes all LPC records
rather than the particular LPC application forms API requested.
Additionally, the injunction is overbroad because it can be
reasonably read to enjoin the government from releasing
information to anyone, not to just API. Because the Doe
plaintiffs were limited under the APA to WS’s decision to release
information to API, the injunction is overbroad because it
applies to requests that were not before the district court.
Finally, the injunction’s definition of Personal Information
is overbroad because it includes the county in which a plaintiff
Cooperator is located. The record indicates no basis for
concluding that such information would identify a Cooperator. As
a result, that portion of the definition is overbroad because it
covers more than the violation established.48
47
See U.S. Steel Corp., 519 F.2d at 1246 n.19 (explaining
that broadness of an injunction refers to the range of proscribed
activity).
48
See Califano, 442 U.S. at 702.
24
In addition to being overbroad, the injunction uses vague
language. Although the definition of personal information
includes “reasonable detail,”49 it is not specific in its terms50
because it encumbers the federal defendants with determining what
combination of information might enable API, or others for that
matter, to determine the name, address, ranch, or location of a
Cooperator.
The Award for Attorney’s Fees and Costs
The district court awarded the Doe plaintiffs attorney’s
fees and costs under the Privacy Act. In its order, the district
court stated that even if the award was not recoverable under the
Privacy Act, it would still award attorney’s fees as a sanction
based on the government’s willful violation of the court’s
injunction, and alternatively, under the Equal Access to Justice
Act (EAJA).51 The government challenges this award on appeal.
The Privacy Act provides for a private cause of action
whenever a governmental agency fails to comply with the
requirements of the act in a way that has an adverse effect on an
49
The order states that “personal information” includes
“names, addresses, the county in which a Plaintiff Cooperator is
located, the acreage of the Plaintiff Cooperator’s property, the
name of a Plaintiff Cooperator’s ranch or farm, telephone
numbers, agreement numbers and agreement types.”
50
See FED. R. CIV. P. 65(d).
51
See 28 U.S.C. § 2412.
25
individual.52 Where a court finds an agency “acted in a manner
which was intentional or willful,” the Privacy Act authorizes the
court to award attorney’s fees and costs.53 Although the Doe
plaintiffs maintain their lawsuit was, at least in part, a
Privacy Act lawsuit, the second amended complaint does not
support that position.
Instead of reflecting a cause of action under the Privacy
Act, the second amended complaint reflects a request for
declaratory judgment. The Doe plaintiffs did not allege the
federal defendants failed to comply with a provision of the
Privacy Act in a way that adversely harmed them; rather they
sought a declaration “pursuant to 28 U.S.C. § 2201 [the
Declaratory Judgments Act] that disclosure of personal
information of the type sought by API in the API Suit would be
arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with the law.” Thus, the Doe plaintiffs did not
establish the prerequisite for attorney’s fees under the Privacy
Act – that is, a lawsuit under the Privacy Act.
Moreover, no basis exists for a finding that the government
acted with intentional or willful noncompliance with the act.
The district court found the federal defendants acted willfully
because they “released personal information about approximately
52
See 5 U.S.C. § 552a(g)(1).
53
See 5 U.S.C. § 552a(g)(4).
26
170 individuals in New Mexico.”54 This disclosure consisted of
unredacted MIS reports from non-LPC states to Forest Guardians on
November 29, 1999 in response to the New Mexico lawsuit. The
release disclosed MIS reports from North Dakota, Kansas,
Oklahoma, and Arizona. Although the district court’s summary
judgment order states the release occurred after it entered a TRO
in this case, the TRO could not have applied to the release
because the Doe plaintiffs did not amend their complaint to
include Forest Guardians’ FOIA request until January 11, 2000.
Until that time, the district court had only API’s FOIA request
for specific LPC application forms before it. As a result, the
November 1999 disclosure to Forest Guardians provides no basis
for attorney’s fees and costs.
In addition, the release provides no basis for sanctioning
the federal defendants. First, unless the government has
expressly waived its immunity, sovereign immunity bars
sanctions.55 The district court’s order does not specify a waiver
that would permit a sanction. Second, there is no factual basis
54
Although the district court’s order stated that the
disclosure “released personal information about 170 individuals
in New Mexico,” the disclosure did not release personal
information about individuals in New Mexico. The order is more
reasonably read as: released personal information about 170
individuals in the New Mexico lawsuit.
55
See United States v. Idaho Dep’t of Water Res., 508 U.S.
1, 8-9 (1993) (a specific waiver of sovereign immunity is
required before the United States may be held liable for monetary
exactions).
27
for a sanction. The government cannot be sanctioned for a
release of non-LPC records based on a TRO or preliminary
injunction that prohibits release of LPC records.
Finally, the EAJA does not provide a basis for an award of
attorney’s fees and costs in this case. The Doe plaintiffs did
not plead for attorney’s fees and costs under the EAJA. But even
if the plaintiffs had asked for attorney’s fees and costs under
the EAJA, the district court’s order shows that the district
court never considered whether the government’s position was
“substantially justified” as required for a recovery under the
EAJA.56
Conclusion
The district court erred in three regards. The district
court exceeded its jurisdiction by enjoining the release of the
MIS database. The court used overbroad and vague language in the
injunction order. The district court erred by awarding the
plaintiffs attorney’s fees and costs. As a result, this court
REVERSES the portion of the injunction order that enjoins release
of the MIS database, REVERSES those portions of the injunction
discussed in this opinion as overbroad and vague, REVERSES the
award of attorney’s fees, and REMANDS this case to the district
court for modification of the injunction order. The court
AFFIRMS the injunction order in all other respects.
56
See 28 U.S.C. § 2412(d)(1)(B).
28
AFFIRMED IN PART; REVERSED and REMANDED IN PART.
29