People for the Ethical Treatment of Animals v. HHS , 901 F.3d 343 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2017 Decided August 17, 2018
No. 16-5269
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00309)
John Seber argued the cause and filed the briefs for
appellant.
Damon W. Taaffe, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Elizabeth R. Geise was on the brief for amicus curiae
American Anti-Vivisection Society in support of appellant.
Before: TATEL, GRIFFITH, and SRINIVASAN, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, People for the Ethical
Treatment of Animals (PETA) asked the Centers for Disease
Control in the U.S. Department of Health and Human Services
(collectively, HHS) for information about the importation of
nonhuman primates. The importers objected that answering
some of the requests would reveal confidential information
about their businesses. HHS agreed and redacted certain types
of information under one of FOIA’s exemptions. The district
court upheld the redactions, and we affirm.
I
A
On May 16, 2014, PETA submitted a FOIA request to
HHS for information about the importation of nonhuman
primates from May 1, 2013, until the request was processed.
PETA asked for information collected under two agency
regulations: The first requires importers to register with HHS
and submit a statement describing “the number and types of
[nonhuman primates] intended for import during the
registration period” and “the intended permitted purposes for
which the [nonhuman primates] will be imported.” 42 C.F.R.
§ 71.53(g)(1)(i), (ii). The second requires importers to provide
documentation that describes how many animals of which
species are in each shipment, the size of their crates, the
exporter shipping them, and the airline used. Id. § 71.53(n)(2).
HHS collects this information as part of its effort “to prevent
the transmission of communicable disease from nonhuman
primates . . . imported into the United States, or their offspring,
to humans.” Id. § 71.53(a); see Public Health Service Act, 42
U.S.C. § 264.
3
HHS identified relevant information collected from ten
importers and, as required by Executive Order No. 12600 and
HHS regulations, notified them of the impending release. See
Predisclosure Notification Procedures for Confidential
Commercial Information, Exec. Order No. 12600, 52 Fed. Reg.
23,781 (June 23, 1987); 45 C.F.R. § 5.42. Each notification
included the documents HHS was about to disclose from that
importer, giving the importer an opportunity to explain whether
any of the information should be withheld and to request
redactions.
Seven importers1 responded, objecting to the disclosure of
various information and requesting redactions. Three
importers2 did not respond. HHS then released 1,575 pages of
redacted documents.
B
Before HHS released the documents, PETA filed suit in
district court after waiting the requisite period prescribed by
FOIA. See 5 U.S.C. § 552(a)(6)(A), (C). Following the
disclosure, the parties filed cross-motions for summary
judgment. PETA claimed HHS had not fully answered the
inquiry because the agency improperly withheld information
that describes how many animals of which species were in each
shipment, the size of their crates, the exporter shipping them,
and the airline used. HHS argued those redactions were
justified under FOIA Exemption 4, which protects
1
Bartons West End Farms, Inc.; Buckshire Corporation;
Charles River Laboratories; Covance Research Products, Inc.;
PTLC/Primate Products, Inc.; Valley Biosystems; and Worldwide
Primates, Inc.
2
Central State Primates; Dallas Zoo Management; and SNBL
USA.
4
“confidential” commercial information when disclosure would
“cause substantial harm to the competitive position of the
person from whom the information was obtained.” McDonnell
Douglas Corp. v. NASA, 180 F.3d 303, 305 (D.C. Cir. 1999).
HHS also provided supporting declarations from the FOIA
Officer for the Centers for Disease Control and two of the
importers, Worldwide Primates, Inc. (WWP), and Primate
Products, Inc. (PPI).3
The district court granted partial summary judgment to
both parties. It began by rejecting HHS’s argument that
information about the particular species being shipped was
confidential. Although the importers had made that claim to
HHS, they had not requested redactions of that information
from many of the disclosed documents. As a result, those
documents “contain[ed] extensive disclosures of the names of
the animal species imported . . . during the twelve-month time
period at issue.” PETA v. HHS (“PETA I”), 201 F. Supp. 3d 26,
41 (D.D.C. 2016) (emphasis omitted). The district court also
noted that the importers would often advertise publicly what
species they were able to obtain. Id. The district court thus
3
HHS filed declarations from WWP and PPI as representative
of the objections to disclosure raised by the importers. HHS
explained that certain other importers claimed their predisclosure
responses to the agency contained information that was also subject
to FOIA exemptions and should not be shared, although HHS offered
to make the correspondence available for the district court to review
in camera. The district court concluded such review was unnecessary
at the summary judgment stage because HHS had already provided
sufficient evidence to justify applying Exemption 4. PETA v. HHS
(“PETA I”), 201 F. Supp. 3d 26, 38 n.10 (D.D.C. 2016). When the
parties later moved for reconsideration of the district court’s grant of
summary judgment, the district court reviewed the correspondence
and found that it provided further support for the court’s decision.
PETA v. HHS (“PETA II”), 226 F. Supp. 3d 39, 52-53 (D.D.C. 2017).
5
ordered HHS to release all information regarding the species
shipped.
Next, as to the seven importers who objected to disclosure,
the district court agreed with HHS that information about the
number of animals shipped and their crate sizes would provide
“valuable, detailed business data concerning each importer’s
capacity to import specific species and each importer’s volume
of business on a shipment-by-shipment basis.” Id. at 42. The
district court continued that “disclosure of the names of
exporters and the names of airline carriers on a shipment-by-
shipment basis . . . would enable competitors to gain an edge in
this competitive market by obtaining valuable business data
regarding the affected importer’s ‘supply chains, pattern of
importation . . . and business relationships.’” Id. (emphasis
omitted) (quoting Watkins v. U.S. Bureau of Customs & Border
Prot., 643 F.3d 1189, 1200 (9th Cir. 2011)). This information
could also be used “to reverse-engineer the company’s business
model.” Id. at 43 (quotation marks omitted). Accordingly, the
district court held that HHS justifiably redacted this
information.
But the district court reached a different conclusion
regarding the three nonresponding importers. Although HHS
had decided itself to redact their information to the same extent
as the other importers, the district court explained there was a
“reasonable assumption” that silence meant disclosure would
not cause the nonresponding importers substantial competitive
harm. Id. at 44-45. The district court ordered HHS to disclose
their information.
C
After the district court entered judgment, the three
nonresponding importers contacted HHS to explain they never
6
received notice that their information might be released. They
provided declarations to HHS, later filed with the district court,
alleging they would be harmed by the disclosure just like the
other importers. HHS moved under Federal Rule of Civil
Procedure 60(b)(6) for reconsideration of the judgment
regarding these three importers, which the district court granted
because it had mistakenly assumed their silence was
intentional. PETA v. HHS (“PETA II”), 226 F. Supp. 3d 39, 50
(D.D.C. 2017). The district court held that HHS could lawfully
redact information for these importers as well.
On appeal, PETA argues that information about the
number of nonhuman primates in each shipment, the size of
their crates, and the airline carrier used is not confidential, and
that the district court erred when granting relief to HHS under
Rule 60(b)(6).
II
The district court had subject-matter jurisdiction under
5 U.S.C. § 552(a)(4)(B). We have appellate jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s grant
of summary judgment. Multi Ag. Media LLC v. USDA, 515
F.3d 1224, 1227 (D.C. Cir. 2008). We review its Rule 60(b)(6)
determination for abuse of discretion. Twelve John Does v.
District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988).
III
FOIA “requires federal agencies to disclose information to
the public upon reasonable request unless the records at issue
fall within specifically delineated exemptions.” Judicial
Watch, Inc. v. FBI, 522 F.3d 364, 366 (D.C. Cir. 2008); see
Milner v. Dep’t of Navy, 562 U.S. 562, 564 (2011). “The strong
presumption in favor of disclosure places the burden on the
7
agency to justify the withholding of any requested documents.”
U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). HHS can
meet this burden through affidavits or declarations that
“describe the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Larson v. Dep’t of State, 565
F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730
F.2d 773, 776 (D.C. Cir. 1984)).
Exemption 4 protects from disclosure “trade secrets and
commercial or financial information obtained from a person
and privileged or confidential.” 5 U.S.C. § 552(b)(4). PETA
concedes that the requested information is “commercial” in
nature and “obtained from a person,” and HHS does not argue
the information is privileged. The only question on appeal is
whether the requested quantity, crate size, and airline carrier
information is “confidential.”
When, as here, a statute or regulation requires a person to
submit information to the government, we determine whether
that information is confidential for purposes of Exemption 4
using the two-part test from National Parks & Conservation
Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). See Critical
Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d
871, 880 (D.C. Cir. 1992) (en banc). Such information is
confidential only if disclosure would either “impair the
[g]overnment’s ability to obtain necessary information in the
future” or “cause substantial harm to the competitive position
of the person from whom the information was obtained.” Nat’l
Parks, 498 F.2d at 770; see also McDonnell Douglas, 180 F.3d
at 304-05; Critical Mass, 975 F.2d at 878-80.
8
HHS argues that disclosure of shipment-by-shipment
quantity, crate size, and airline carrier information would cause
substantial harm to the competitive position of the importers.
This requires HHS to provide “both a showing of actual
competition and a likelihood of substantial competitive injury.”
CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C. Cir.
1987); see Pub. Citizen Health Research Grp. v. FDA (“Pub.
Citizen I”), 704 F.2d 1280, 1291 (D.C. Cir. 1983); Nat’l Parks,
547 F.2d at 679. “[A] sophisticated economic analysis of the
likely effects of disclosure” is unnecessary. Pub. Citizen I, 704
F.2d at 1291.
IV
A
At the summary judgment stage, PETA conceded that the
market for nonhuman primates is competitive and thus waived
its contrary argument on appeal. See PETA II, 226 F. Supp. 3d
at 56 n.7; PETA I, 201 F. Supp. 3d at 37; Plaintiff Opp. and
Cross Mot. at 11, PETA I, 201 F. Supp. 3d 26, ECF No. 23-1
(“PETA does not challenge the existence of competition, so the
critical issue is whether substantial competitive injury would
likely result from disclosure.”). In any event, HHS established
that the domestic market has a limited number of licensed
importers who compete against each other and similar
international businesses for a limited number of suppliers,
airline carrier services, and clients interested in nonhuman
primates. See Declaration of Ira M. Block, Chief Executive
Officer of WWP (“Block Decl.”) ¶ 5, PETA I, 201 F. Supp. 3d
26, ECF No. 28-2, J.A. 110; Declaration of Thomas J. Rowell,
President and Chief Operating Officer of PPI (“Rowell Decl.”)
¶ 6, PETA I, 201 F. Supp. 3d 26, ECF No. 28-3, J.A. 114. We
would have little difficulty concluding the market for importing
9
nonhuman primates is competitive even without PETA’s
waiver.
B
Competition among the importers turns in part on their
ability to obtain nonhuman primates at low cost and in large
enough quantities to meet the demands of their clients. See
Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51
(D.C. Cir. 1981) (“[C]ompetition in business turns on the
relative costs and opportunities faced by members of the same
industry . . . .”). In other words, the supply chain, importation
pattern and capacity, and business relationships of each
importer are integral to its commercial success. See Declaration
of Katherine S. Norris, FOIA Officer for the Centers for
Disease Control (“Norris Decl.”) ¶ 29, PETA I, 201 F. Supp.
3d 26, ECF No. 17-1, J.A. 19. Courts routinely hold that
disclosing this type of information presents a likelihood of
substantial competitive injury that warrants protection under
Exemption 4.
For example, in Trans-Pacific Policing Agreement v. U.S.
Customs Service, 177 F.3d 1022, 1026 (D.C. Cir. 1999), we
held that disclosing information about the “nature, cost, profit
margin, and origin” of certain shipments would likely cause
substantial competitive injury to the importers in that case. We
explained that this information would allow competitors to
“gain a picture of an importer’s intentions, profit margin, and
other plans.” Id. (quotation marks omitted). Likewise, in
Watkins v. U.S. Bureau of Customs & Border Protection, the
Ninth Circuit applied the National Parks test and held that
disclosing “intimate aspects of an importer[’]s business such as
supply chains and fluctuations of demand for merchandise,”
including the quantity of merchandise in particular shipments,
presented a sufficient likelihood of substantial competitive
10
injury under Exemption 4. Watkins, 643 F.3d at 1195. And in
Gilda Industries, Inc. v. U.S. Customs & Border Protection
Bureau, 457 F. Supp. 2d 6, 11 (D.D.C. 2006), the district court
agreed with an agency that “pairing specific importers with the
precise products that they import during a particular three-
month period would be valuable to a competitor hoping to gain
an edge in the relevant market.” The district court credited
statements by the importers that disclosing “valuable business
data such as sources of supply, product lines, supply chains and
customers” would “enable a competitor to target those
suppliers who are of most benefit to the company by offering
slightly higher prices or otherwise disrupting supply chains
abroad.” Id. (quotation and alteration marks omitted); see
Customs & Int’l Trade Newsletter v. U.S. Customs & Border
Prot., 588 F. Supp. 2d 51, 55-58 (D.D.C. 2008) (similar). The
shipment-by-shipment information in this case is no different.
Because “[a]ny reasonably segregable portion of a record
shall be provided to any person requesting such record after
deletion of the portions which are exempt,” we discuss animal
quantity, crate size, and airline carrier information in turn. 5
U.S.C. § 552(b); see also Trans-Pac. Policing Agreement, 177
F.3d at 1026-27; see Pub. Citizen Health Research Grp. v. FDA
(“Pub. Citizen II”), 185 F.3d 898, 906-07 (D.C. Cir. 1999).
1
HHS determined that disclosing shipment-by-shipment
quantity information would harm each importer by revealing
its importation pattern and capacity to obtain nonhuman
primates. We agree that disclosing this information would
likely cause substantial competitive injury.
As WWP explained, revealing the number of each species
of animal in its shipments would “allow [its] competition to
11
determine [its] volume of business and possibly interfere with
[its] supply of such species.” Block Decl. ¶ 10, J.A. 111; see id.
¶ 5, J.A. 110 (explaining that quantity information “could
allow competitors to learn a company’s capacity to obtain,
house and transport” nonhuman primates). PPI added that
competitors with the ability to import larger numbers of certain
nonhuman primates could leverage and “promote this fact to
[buyers] and claim that they had a greater capacity to provide
this species,” thereby gaining a competitive advantage in
negotiations. Rowell Decl. ¶ 6, J.A. 114. The importers operate
in a limited market where “even relatively small increases or
decreases in the success of a particular importer can have an
outsized impact [on] competitors.” Id.
Shipment-by-shipment quantity information would also
reveal the percentage of business by volume each importer
devotes to a particular species. Block Decl. ¶ 10, J.A. 111. If a
competitor knew that a large percentage of another importer’s
business was from a particular species of nonhuman primate,
the competitor might try to drive up the other importer’s costs
or cut off its supply by offering higher prices to purchase that
species from exporters. Id.; see Gilda Indus., 457 F. Supp. 2d
at 10-11. The competitor might also choose to sell that species
at a lower price to reduce the profits of the other importer and
drive it from the market. Block Decl. ¶ 5, J.A. 110; Rowell
Decl. ¶ 6, J.A. 114. Or a competitor might use importation
patterns to predict and counter another importer’s business
plans, such as an intent to expand or contract its presence in a
particular sector of the market. See Watkins, 643 F.3d at 1195;
Trans-Pac. Policing Agreement, 177 F.3d at 1026.
PETA responds that the U.S. Department of Agriculture
(USDA) “already posts detailed inventories of the exact
number of species and quantities that each importer possesses.”
12
PETA Br. 27. If these inventory snapshots are already public,
PETA reasons, disclosure cannot cause competitive injury.
PETA is correct that information already available to the
public cannot cause competitive injury and is not protected
from disclosure by Exemption 4. See Niagara Mohawk Power
Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)
(“[I]f identical information is truly public, then enforcement of
an exemption cannot fulfill its purposes.”); CNA Fin. Corp.,
830 F.2d at 1154 (“To the extent that any data requested under
FOIA are in the public domain, the submitter is unable to make
any claim to confidentiality—a sine qua non of Exemption
4.”). That said, to prevail on this argument, the requesting party
“has the burden of showing that there is a permanent public
record of the exact portions he wishes” to obtain. Davis v. U.S.
Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992)
(emphasis added). That is where PETA’s argument fails.
We see a material difference between inventory snapshots,
posted periodically as part of inspection reports by the USDA,
and the number of nonhuman primates obtained in various
shipments. While an inventory snapshot might reveal the
ability of an importer to satisfy the immediate market demand
for nonhuman primates at the time of the inspection, it says
nothing about the ability of each importer to obtain additional
nonhuman primates and meet long-term or increased demand.
Nor does it say anything about the importer’s inventory the day
before or after the inspection. Shipment-by-shipment quantity
information is a far more accurate measure of business volume
than the inventory each importer has at given points in time,
which are often many months apart. The inventory snapshots
of a particular importer might remain steady over multiple
years regardless of whether that importer obtained 50 or 5,000
nonhuman primates for its clients between inspections.
13
Moving on, PETA points out that the two importers who
provided declarations, WWP and PPI, did not request specific
redactions of quantity information from the majority of their
documents despite saying such information was confidential.
PETA views this as a tacit admission that disclosing quantity
information will not cause these or any other importers
substantial competitive injury. Moreover, PETA argues, the
omission undermines the validity of their declarations.
Whether WWP and PPI failed to request specific
redactions of their quantity information out of inadvertence or
a subjective belief that their particular information would not
cause substantial competitive injury does not negate that such
information is objectively confidential. Indeed, those two
importers could have requested the redactions and HHS would
have been justified in withholding their quantity information.
Their failure to do so does not prevent HHS, the district court,
or us from finding their reasoning persuasive, nor does it
compromise the confidentiality interests of the other importers,
all of whom objected to release of the same information and
requested specific redactions. See Pub. Citizen Health
Research Grp. v. Nat’l Insts. of Health, 209 F. Supp. 2d 37, 50
(D.D.C. 2002) (“The evidence of those who did respond was
overwhelmingly against disclosure which tips the scales
heavily toward a conclusion that release of the information
would likely cause substantial competitive injury.”). HHS was
therefore justified in withholding shipment-by-shipment
quantity information, and summary judgment was appropriate
on this issue.4
4
In ruling on another motion, the district court actually ordered
HHS to disclose the number of animals in each shipment, along with
their crate sizes, for WWP and PPI because those two importers
failed to request redactions for much of that information. HHS does
not appeal that decision.
14
2
HHS next argues that crate sizes are tantamount to quantity
information and therefore confidential. This is so because “the
size and dimension of crates . . . reveal[] the capacity of the
crates and can provide insight into the size or type of
[nonhuman primate] imported.” Rowell Decl. ¶ 6 & n.1, J.A.
114 & n.1. PETA disputes this assertion, arguing that crates
come in all shapes and sizes and can hold any number or type
of nonhuman primates. Therefore, PETA reasons, crate sizes
cannot be used to estimate the number or type of imported
nonhuman primates.
Even a cursory review of the importation documents
reveals that crate sizes indicate corresponding quantity
information. Certain size crates are routinely used to transport
certain numbers of nonhuman primates. In fact, many of the
sizes actually include the number of individual compartments
or quantity of nonhuman primates each can accommodate, and
we have no indication that shipments contain empty crates.
PETA’s insistence that crate sizes do not reveal the number of
nonhuman primates in each shipment is unconvincing.
PETA otherwise repeats the same objections it raised
regarding quantity information, but we are persuaded that HHS
was justified in withholding crate sizes for the same reasons it
could redact quantity information over those objections.
Summary judgment was therefore appropriate on this issue and
we need not consider whether crate sizes also reveal individual
details about the nonhuman primates inside.
3
Finally, HHS explains that airline carriers willing to
transport nonhuman primates are scarce and constitute another
15
integral aspect of each importer’s supply chain. WWP asserts
that “the ability to locate airlines willing to transport research
animals [is] the single most time consuming aspect of the
logistical portion of this business which also consumes an
extensive amount of effort and expense.” Block Decl. ¶ 7, J.A.
110; see Rowell Decl. ¶ 7, J.A. 114 (“[M]uch time, expense
and effort is involved in locating airlines.”). And “when a
viable transport route is able to be established, [nonhuman
primate importers] seek to guard this information vigorously.”
Block Decl. ¶ 7, J.A. 110. Airline carriers also “signal to . . .
competition the country from where the import is being
received, thereby giving [competitors] valuable trade
information regarding species that are available, supplier
names, and means or methods of transport.” Rowell Decl. ¶ 8,
J.A. 115; see Norris Decl. ¶ 29, J.A. 19.
A competitor could easily use this information to target
and disrupt, whether by outbidding or other means, a specific
supply chain in an effort to drive an importer from the market
or steal importation capacity. See Gilda Indus., 457 F. Supp. 2d
at 11. New companies as well would be able to enter the market
without the startup costs associated with researching successful
importation means and practices. See Pub. Citizen II, 185 F.3d
at 905. Disclosing this information would provide competitors
with something of a free roadmap to the industry—a “potential
windfall” that “could easily have competitive consequences.”
Worthington Compressors, 662 F.2d at 51.
PETA argues that airlines willing to carry nonhuman
primates are commonly known and so disclosing their
identities would not cause substantial competitive injury. But,
as the district court properly noted, PETA overlooks the
essential distinction between general industry data and
particular business relationships or shipment-by-shipment
supply chain information. PETA I, 201 F. Supp. 3d at 42-43;
16
see Davis, 968 F.2d at 1280. Knowing in the abstract which
airlines transport nonhuman primates is very different than
knowing which importers have relationships with which airline
carriers, and which airline carriers are willing to transport
which species of nonhuman primate along which routes and
from which countries. Summary judgment was appropriate on
this issue as well.
* * *
We conclude this discussion by noting that the likelihood
of substantial competitive injury can increase
disproportionately as more information is released. Requiring
disclosure of multiple types of information provides a more
comprehensive picture of each importer’s supply chains,
importation patterns and capacity, and business relationships.
As the district court observed, “[T]he record evidence . . .
indicates that [nonhuman primate] importers have taken
considerable efforts to develop and protect business models
effectuating the cost-effective transport of nonhuman primates
into the United States through strategic relationships with
exporters and airlines.” PETA I, 201 F. Supp. 3d at 42; see also
Block Decl. ¶ 9, J.A. 111. The number of nonhuman primates
in each shipment, the size of their crates, and the airline carriers
used would give competitors key data on how to disrupt,
compete with, or copy those business models.
Because the market for nonhuman primates is competitive
and disclosure would likely cause substantial competitive
injury, releasing shipment-by-shipment quantity, crate size,
and airline carrier information would cause substantial harm to
the competitive position of each importer. The information is
therefore confidential and protected from disclosure by
Exemption 4.
17
V
We now turn to the district court’s decision to grant HHS’s
Rule 60(b)(6) motion. In considering a Rule 60(b) motion, the
district court “must strike a ‘delicate balance between the
sanctity of final judgments . . . and the incessant command of a
court’s conscience that justice be done in light of all the facts.’”
Twelve John Does, 841 F.2d at 1138 (quoting Good Luck
Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir.
1980)). This relief “should be only sparingly used,” Good Luck,
636 F.2d at 577, and reserved for “extraordinary
circumstances,” Ackermann v. United States, 340 U.S. 193, 199
(1950). It should not “be employed simply to rescue a litigant
from strategic choices that later turn out to be improvident. And
a party that has stipulated to certain facts or has not presented
known facts helpful to its cause when it had the chance cannot
ordinarily avail itself on [R]ule 60(b) after an adverse judgment
has been handed down.” Good Luck, 636 F.2d at 577 (citations
omitted); see Twelve John Does, 841 F.2d at 1140-42
(discussing the Rule 60(b)(6) standard).
We have held that “[w]hen a party timely presents a
previously undisclosed fact so central to the litigation that it
shows the initial judgment to have been manifestly unjust,
reconsideration under [R]ule 60(b)(6) is proper.” Good Luck,
636 F.2d at 577. In FOIA cases, relief under Rule 60(b)(6) is
all the more appropriate when “it involves not only the interests
of the [agency], but that of a third party whose . . . information
[is] expressly protected by FOIA.” Comput. Prof’ls for Soc.
Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C.
Cir.), amended (Feb. 20, 1996); see Delta Ltd. v. U.S. Customs
& Border Prot. Bureau, 393 F. Supp. 2d 15, 17 (D.D.C. 2005)
(“[I]t seems clear that injury to innocent third parties [from a
FOIA disclosure] would fall beneath the ‘manifest injustice’
umbrella.”); Changzhou Laosan Grp. v. U.S. Customs &
18
Border Prot. Bureau, 374 F. Supp. 2d 129, 131-32 (D.D.C.
2005) (similar).
The district court granted the Rule 60(b)(6) motion
because it had assumed that silence on behalf of the
nonresponding importers indicated they did not object to
disclosure of their information. The district court did not
reconsider whether the various types of information were
confidential, but instead whether the nonresponding importers
somehow conceded that disclosing their particular information
was harmless. In addition, the district court explained that
HHS’s failure to timely present this evidence was not due to
neglect, and the prejudice that would otherwise result to the
third-party importers was “inherently unfair” and weighed in
favor of reconsideration. PETA II, 226 F. Supp. 3d at 47.
We are mindful that “the district judge, who is in the best
position to discern and assess all the facts, is vested with a large
measure of discretion in deciding whether to grant a Rule 60(b)
motion.” Twelve John Does, 841 F.2d at 1138. We see no abuse
of that discretion here. And given that we have granted relief
under Rule 60(b)(6) to protect third parties when an agency had
“not presented known facts helpful to its cause when it had the
chance,” Comput. Prof’ls, 72 F.3d at 903 (emphasis added), we
see even more reason to uphold the district court’s discretion
where HHS presented previously unknown facts.
PETA argues that Exemption 4 is an objective inquiry that
should not turn on subjective assertions of competitive harm by
the importers. See Nat’l Parks, 498 F.2d at 766 (“[T]he test for
confidentiality is an objective one.”). In other words,
information is not confidential just because the importers say
so. But this argument overlooks that the district court had
already determined that shipment-by-shipment quantity, crate
size, and airline carrier information were objectively
19
confidential in this case. When the district court realized it was
mistaken to assume that silence meant disclosure would be
harmless for the nonresponding importers in particular, the
district court simply applied its objective conclusion that such
information was confidential. The district court did not allow
HHS to withhold anything just because the importers claimed
it was confidential.
In response to the Rule 60(b)(6) motion, PETA produced
new evidence to refute or undermine the alleged likelihood of
substantial competitive injury that each of the nonresponding
importers would experience from disclosure of the relevant
information. The district court refused to consider this evidence
because PETA failed to timely submit it for consideration
during the summary judgment proceeding. This was not an
abuse of discretion, either. See Good Luck, 636 F.2d at 577.
PETA was impermissibly “seek[ing] to re-litigate the merits of
the Court’s underlying decisions with regard to the
applicability of Exemption 4.” PETA II, 226 F. Supp. 3d at 50.
Moreover, PETA now tries to raise additional arguments
it did not make in connection with the Rule 60(b)(6) motion
below. Those arguments were forfeited. Keepseagle v. Perdue,
856 F.3d 1039, 1053-54 (D.C. Cir. 2017).
VI
We affirm the judgment of the district court.
So ordered.