John Doe 1 v. Veneman

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