NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL No. 18-15997

DIVERSITY,

D.C. No. 4:16-cv-00527-BGM Plaintiff-Appellee,

v. MEMORANDUM*

UNITED STATES FISH AND WILDLIFE

SERVICE,

Defendant,

and

NATIONAL ASSOCIATION FOR

BIOMEDICAL RESEARCH,

Intervenor-Defendant- Appellant.

Appeal from the United States District Court for the District of Arizona Bruce G. Macdonald, Magistrate Judge, Presiding

Submitted April 16, 2020** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge.

Intervenor-Defendant-Appellant National Association for Biomedical

Research (NABR) appeals the district court’s entry of judgment in favor of

Plaintiff-Appellee Center for Biological Diversity (CBD) and against Defendant

United States Fish and Wildlife Service (Service). After judgment was entered,

NABR intervened to protect the confidentiality of its member-companies’

information regarding the importation and exportation of wildlife. The sole issue

on appeal is whether this information should be shielded from disclosure under

“Exemption 4” of the Freedom of Information Act (FOIA), which protects

“commercial or financial information obtained from a person and . . . confidential.”

5 U.S.C. § 552(b)(4). The district court, relying on the then-applicable definition

of “confidential,” determined that the disclosure of this information was not likely

to cause substantial competitive harm and so granted summary judgment to CBD

and ordered the Service to disclose the information.1

While this appeal was pending, the Supreme Court decided Food Marketing

Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), which addressed

Exemption 4. The Court rejected our definition of “confidential” and adopted a

*** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 1 Although the district court partially granted the Service summary judgment, CBD’s other claims are not at issue in this appeal.

2 new definition. Id. at 2362–66. Specifically, the Court held that Exemption 4 is

triggered at least where the commercial information “is both [1] customarily and

actually treated as private by its owner and [2] provided to the government under

an assurance of privacy.” Id. at 2366. Although it is sufficient to show both

prongs, the Court declined to address whether the second prong is necessary. Id. at

2363.2 We agree with the parties that Food Marketing alters the governing

standard for evaluating whether Exemption 4 bars disclosure. See Lambert v.

Blodgett, 393 F.3d 943, 973 n.21 (9th Cir. 2004).

We vacate the judgment as it applies to NABR and remand for further

proceedings. The district court did not have the benefit of Food Marketing in

deciding whether the disputed information is “confidential,” and we decline to

apply the new legal standard in the first instance. See Clark v. Chappell, 936 F.3d

944, 971–72 (9th Cir. 2019) (remanding where “we are without the benefit of the

district court’s analysis on the new standard” (internal quotation marks and citation

omitted)). Similarly, because the district court assumed without deciding that the

information was “commercial information,” we decline to resolve that issue. See

Shirk v. U.S. ex rel. Dep’t of Interior, 773 F.3d 999, 1007 (9th Cir. 2014) (“As a

2 Although GSA v. Benson remarked that requiring government assurance of privacy “seem[ed] correct,” its holding rested on what would later become Food Marketing’s first prong. 415 F.2d 878, 881–82 (9th Cir. 1969). Thus, Benson does not resolve the open question as to Food Marketing’s second prong.

3 federal court of appeals, we must always be mindful that we are a court of review,

not first view.” (internal quotation marks and citation omitted)).

Remand is particularly appropriate here because the factual record may

benefit from further development as to both of Food Marketing’s prongs. As to the

first prong, NABR members’ declarations imply that they “customarily and

actually” treat the commercial information as private, though they did not say how.

Likewise, the declarations do not address whether the companies designated the

information as “confidential” when they submitted the information to the Service,

which may also be relevant. As to the second prong, CBD here asks that we take

judicial notice of a document that may be relevant to whether the information at

issue in this case was “provided to the government under an assurance of privacy”

but that CBD inadvertently failed to file with the district court. On remand the

district court may, if necessary, determine how to consider the significance of this

evidence in the first instance. See Clark, 936 F.3d at 972 (remanding where

appellant submitted new evidence for the first time on appeal).3 As to both prongs,

the district court has a “variety of tools” to more fully develop the record, if

necessary. Betz v. Trainer Wortham & Co., 610 F.3d 1169, 1171 (9th Cir. 2010).

For the above reasons we vacate the order granting summary judgment to

CBD and against the Service. The district court in its discretion may allow the

3 We accordingly deny CBD’s request for judicial notice as moot.

4 parties to supplement the factual record in light of the new standard adopted in

Food Marketing.

VACATED in part and REMANDED for further proceedings. The parties

shall bear their own costs on appeal.

5