We voted to rehear this case en banc to reconsider our circuit precedent on the standard of review applicable to summary judgment decisions in cases brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. We agree with the three-judge panel that the appropriate standard of review is de novo.
We adopt and reiterate the reasoning set forth by the three-judge panel in its concurrence. Under our usual practice, "[w]e review the district court's grant or denial of motions for summary judgment de novo." Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 908 (9th Cir. 2016) (citing Besinga v. United States, 14 F.3d 1356, 1359 (9th Cir. 1994)). Thus, on appellate review, we employ the same standard used by the trial court under Federal Rule of
Most FOIA cases are resolved by the district court on summary judgment, with the district court entering judgment as a matter of law. See Wickwire Gavin, P.C. v. U. S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004). But some FOIA cases require resolution of disputed facts. See, e.g., GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1110 (9th Cir. 1994) (requiring a factual determination of substantial competitive harm). In those cases, we have employed a different summary judgment standard, as we described in Yonemoto v. Department of Veterans Affairs:
686 F.3d 681, 688 (9th Cir. 2012) (footnote and citations omitted).
This "two-step test," Lion Raisins Inc. v. U.S. Dep't of Agric., 354 F.3d 1072, 1078 (9th Cir. 2004), began with Church of Scientology of California v. U.S. Department of the Army, 611 F.2d 738 (9th Cir. 1979), in which we borrowed the "clearly erroneous" standard from the D.C. Circuit, id. at 743 (citing Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 n. 13 (D.C. Cir. 1977)). However, the D.C. Circuit has long since abandoned this standard and, instead, now reviews summary judgment decisions in FOIA cases de novo, as in all other cases. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992). The First, Second, Sixth, Eighth, and Tenth Circuits also apply de novo review to district court FOIA summary judgment decisions.
In reviewing our precedents, as well as those of our sister circuits, we conclude there is no principled distinction to be drawn between our usual summary judgment standard and the standard to be applied in FOIA cases. We have noted the oddity of this analytic difference: "By definition, summary judgment may be granted only when there are no disputed issues of
In short, there is "no compelling reason to depart from a pure de novo standard," Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999), when reviewing FOIA summary judgment decisions. We agree with the Second Circuit that de novo review fits better with the policy and purpose of FOIA:
Accordingly, we adopt a de novo standard of review for summary judgment decisions in FOIA cases. Church of Scientology, 611 F.2d at 743, and our other decisions to the contrary are overruled.
Consistent with our usual procedure, if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing. Resolution of factual disputes should be through the usual crucible of bench trial or hearing, with evidence subject to scrutiny and witnesses subject to cross-examination. The district court must issue findings of fact and conclusions of law. Fed. R. Civ. P. 52(a)(1). Our review remains the same as in all civil cases: we review the findings of fact for clear error and the conclusions of law de novo. See OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1096 (9th Cir. 2011).
We confine our en banc consideration to the question of controlling circuit precedent. We decline as an en banc court to reach any other issue presented by the parties. The three-judge panel that heard the appeal was bound by the standard articulated in Church of Scientology and issued its opinion based on that assumption. In issuing our order granting rehearing en banc, we declared that the three-judge panel opinion should not be cited as precedent by or to any court of the Ninth Circuit. Animal Legal Def. Fund v. FDA, 835 F.3d 891, No. 13-17131, 2016 WL 4120696 (9th Cir. Aug. 3, 2016). With this correction of our precedent, en banc proceedings with respect to this case are terminated, and we return control of the case to the three-judge panel. The panel will resolve the merits issues in this case and will issue a new or an amended opinion.