Animal Legal Defense Fund v. U.S. Food & Drug Administration

*751 OPINION

In Animal Legal Defense Fund v. FDA, No. 13-17131, 836 F.3d 987 , 2016 WL 4578362 (9th Cir. Sept. 2, 2016) (en banc) (per curiam), the en banc court overruled our earlier precedents on the applicable standard of review in Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 , cases decided on summary judgment. The court held that the usual summary judgment standard applies, so we must review the district court’s decision de novo. Accordingly, on summary judgment, “if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing.” Animal Legal Def. Fund, 836 F.3d at 990 , 2016 WL 4578362, at *2 .

As we noted in our earlier opinion, Animal Legal Defense Fund v. FDA, 819 F.3d 1102, 1108-09 (9th Cir. 2016), the parties submitted competing declarations concerning the potential competitive effect of releasing egg-production information. In a per curiam concurrence, we also observed that, “if ordinary principles applied, summary judgment would not be appropriate because the record contains a disputed issue of material fact.” Id. at 1112 . Following the en banc court’s decision, those ordinary principles now…