United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2019 Decided March 15, 2019 

No. 18-5074 

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, ET AL.,

APPELLANTS

v. 

UNITED STATES DEPARTMENT OF AGRICULTURE AND ANIMAL 

AND PLANT HEALTH INSPECTION SERVICE, 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:17-cv-00269) 

Katherine Anne Meyer argued the cause for appellants. 

With her on the briefs was William N. Lawton. 

John S. Koppel, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief was Mark 

B. Stern, Attorney. Michael S. Raab and Daniel Tenny, 

Attorneys, entered appearances.

Before: GARLAND, Chief Judge, KATSAS, Circuit Judge, 

and WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 
2

WILLIAMS, Senior Circuit Judge: A coalition of animal 

rights advocates led by People for the Ethical Treatment of 

Animals (collectively “PETA”) appeals the dismissal of their 

FOIA claims seeking records relating to animal welfare laws 

and regulations from the U.S. Department of Agriculture 

(“USDA”). Plaintiffs sued after the agency had removed 

certain records posted online, explaining its action in language 

consistent with an intention to restore them except for 

redactions required by privacy interests (but without a clear 

commitment to such restorations).

The district court dismissed all claims on varying grounds: 

(1) on the merits—as to certain issues not appealed; (2) on 

mootness with regard to material restored by USDA to the 

website, and (3) as to redactions from restored materials, on the 

ground that plaintiffs’ complaint did not address them. We 

reverse on the last issue without reaching the merits, and we 

remand for further factual clarification bearing on plaintiffs’

contention that USDA’s voluntary cessation of unlawful 

activity renders mootness inapplicable. We affirm the district

court’s refusal to grant discovery against the agency.

* * * 

Plaintiffs seek documents from the Animal and Plant 

Health Inspection Service (“APHIS”), the entity within USDA 

that administers the Animal Welfare Act (“AWA”), 7 U.S.C. 

§§ 2131 et seq., and is responsible for licensing and inspecting 

animal research facilities, among other things. Plaintiffs filed 

this suit shortly after USDA took down from its website a large

swath of documents relating to AWA compliance. On 

February 3, 2017, USDA announced that, “during the past 

year,” APHIS had been “conduct[ing] a comprehensive review 

of the information it posts” online. See USDA, Stakeholder 

Announcement: Updates to APHIS’ Website Involving Animal 

Welfare Act and Horse Protection Act Compliance Information 
3

(Feb. 3, 2017) (updated Feb. 15, 2017), 

https://www.aphis.usda.gov/aphis/newsroom/stakeholder-info

/sa_by_date/sa-2017/sa-02/awa-hpa-compliance. The 

announcement stated that USDA was taking down a host of 

records with the aim of “remov[ing] certain personal 

information.” Id. In doing so, the agency was “striving to 

balance the need for transparency with rules protecting 

individual privacy.” Id. Though the announcement did not 

expressly say that the takedown was temporary or provide a 

timeline to repost records, the agency in this litigation describes 

the removal as “provisional[],” suggesting that “remov[ing] . .

. personal information” is a task temporary in nature. See 

USDA Br. 6; see also J.A. 43 (USDA’s motion to dismiss 

describing the takedown as “a temporary precaution”). The 

district court agreed, calling the removal “temporary” and 

“one-time,” People for Ethical Treatment of Animals, Inc. v. 

U.S. Dep’t of Agric. (PETA I), 285 F. Supp. 3d 307, 313 

(D.D.C. 2018), though plaintiffs do not concede the point, see 

PETA Br. 31. 

On February 13, 2017, plaintiffs filed this suit asking for 

declaratory and injunctive relief, invoking what is known as 

FOIA’s “reading room” provision, 5 U.S.C. § 552(a)(2). That 

provision requires agencies to “make available for public 

inspection in an electronic format” five categories of 

documents. The complaint focuses on four types of records (as 

grouped by the district court) that the agency had removed: (1)

research facility annual reports; (2) inspection reports; (3) lists 

of entities licensed under the AWA; and (4) regulatory 

correspondence and enforcement records that had not yet 

received final adjudication. See Compl. ¶¶ 1, 30; 285 F. Supp. 

3d at 310–11. 

Plaintiffs allege that they depend on these documents for, 

inter alia, scholarly endeavors, see Compl. ¶ 5, and wideranging advocacy work, including unearthing and correcting 
4

AWA compliance violations, Compl. ¶ 24. The records at 

issue, plaintiffs allege, were “routine[ly]” made available “[f]or 

many years,” Compl. ¶ 31, though admittedly with redactions 

in line with relevant FOIA exemptions, including for “personal 

privacy,” Compl. ¶ 21; see 5 U.S.C. § 552(b)(6). PETA alleges 

that under § 552(a)(2) USDA must disclose all removed 

records, Compl. ¶ 34, and avers that requiring plaintiffs to file 

FOIA requests for these records under § 552(a)(3) would be 

onerous, exacerbating USDA’s existing “substantial backlog” 

in processing FOIA requests. Compl. ¶ 27. 

PETA asked for an order requiring that USDA 

“immediately” “make all . . . records” described in the 

complaint available by electronic means. It also sought a 

declaration that USDA had violated FOIA by removing the 

documents, along with an injunction ordering the agency to 

“make all such records available” to plaintiffs on an ongoing 

basis. Compl. 15. 

For simplicity’s sake, we exclude two groups of 

documents from further discussion: the entirety of category (4)

above, and the portion of category (2) consisting of animal 

inventories. As to these, the district court dismissed plaintiffs’ 

complaint under Rule 12(b)(6) on the ground that it failed to 

say why they were covered by 5 U.S.C. § 552(a)(2), but 

expressly made its ruling without prejudice. Plaintiffs do not

appeal those rulings. 

In granting USDA’s motion to dismiss, the district court 

reasoned in three steps. See Table 1. First, as to categories (1)–

(3) above, it concluded that “it appears” the agency had 

reposted the requested materials, apart from animal inventories

in category (2). 285 F. Supp. 3d at 312. The court therefore 

dismissed PETA’s claims under headings (1)–(3) as moot. It 

likewise rejected the possibility that the “voluntary cessation” 

doctrine negated USDA’s claim of mootness. Id. at 313. The 
5

district court cited the temporary nature of the removals along

with statements made by USDA in its December 4, 2017, letter, 

see J.A. 235–39, responding to the district court’s Minute Order 

of November 27, 2017. The letter outlines the agency’s 

progress in reposting materials and states its plans as to future 

postings of existing and newly created records in certain 

categories of documents. In light of its ruling on mootness, the 

district court denied plaintiffs’ request for discovery against the 

agency to probe its rationales for the takedown. 285 F. Supp. 

3d at 315 n.7. 

Second, the district court addressed the agency’s 

redactions from the records taken down and then reposted. See 

USDA Br. 8, 11, 19; see also J.A. 236. Though plaintiffs 

objected to these redactions, the district court did not address 

their demands because, on its view, the complaint did not 

encompass those demands. 285 F. Supp. 3d at 313 n.3. Still, 

the court left the door open for PETA to “raise challenges to the 

redactions that now accompany these records,” id., perhaps by 

amending its complaint or bringing another suit. (Plaintiffs did 

not amend their complaint.) 
6

Table 1 

Documents Plaintiffs Seek from USDA on Appeal 

 Category 1 Category 2 Category 3 

Research 

facility 

annual 

reports 

Inspection 

reports 

(with animal 

inventories) 

Lists of entities 

licensed under 

AWA 

Reposted 

during 

litigation 

Yes Yes 

(but not animal 

inventories; new 

redactions in 

some documents) 

Yes 

(monthly list of 

active licensees, 

registrants; no 

real-time list)

Agency’s 

intent in 

Dec. 4, 

2017, 

letter, J.A. 

235–39 

“reposted 

all” records 

& “intends to 

continue 

posting,” 

J.A. 236 

“now posting all” 

reports for recent 

3-year period, 

J.A. 236 

“posting the 

monthly list of 

active (current) 

licensees,” J.A. 

237 

District 

court 

disposition 

Moot Moot 

as to all but 

redactions 

Moot 

Failure to plead 

as to new 

redactions 
7

Third, the court dealt with the items that for simplicity’s 

sake we are not addressing here, as we explained above. As to 

them, plaintiffs have now filed a new lawsuit, which is not 

before us, pressing these and other claims, including their 

objections to USDA’s latest redactions. See People for the 

Ethical Treatment of Animals, Inc., et al. v. Sonny Perdue, et 

al. (PETA II), No. 18-cv-887-CRC (D.D.C. filed Apr. 16, 

2018). 

This appeal, then, centers on reposted records—both with 

and without new redactions. We consider each in turn and 

remand for further proceedings. 

* * * 

We first address reposted records diminished by new 

redactions. The district court declined to consider PETA’s 

objections on this score because those objections were not “part 

of the complaint as filed,” which focused, in the district court’s 

view, on the “wholesale removal of the records.” 285 F. Supp. 

3d at 313 n.3. PETA contends that the district court erred. We 

agree. 

To begin with, since the new redactions post-date the filing 

of the complaint, plaintiffs could have known of them at the 

outset of litigation only in the most general way, as a possibility 

of unknown scope. Cf. PETA Br. 39. More important, we 

think the complaint can’t be reasonably read as demanding only 

that the agency be required to restore mutilated versions of 

documents previously published without redactions—at least 

without the redactions in question. It states that “records that 

for many years were easily accessible . . . are now no longer 

readily available to Plaintiffs,” Compl. ¶ 31, and requests relief 

“immediately” making “all such records that have been 

removed available to Plaintiffs,” Compl. 15 (emphasis added). 

The complaint, tellingly, is also not limited to talk of records. 
8

It repeatedly speaks of information. And, as we have long said, 

FOIA’s “focus . . . is information, not documents.” Kimberlin 

v. Dep’t of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998) (quoting 

Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 

242, 260 (D.C. Cir. 1977)). PETA alleges that “[d]efendants’ 

decision to remove from APHIS’s website the information that 

is required to be affirmatively disclosed . . . violates FOIA,”

Compl. ¶ 36 (emphasis added), and its “actions in removing 

such information . . . injure Plaintiffs by denying them 

immediate electronic access to such records,” Compl. ¶ 37 

(emphasis added). We read the complaint as demanding an 

order requiring USDA to repost documents in their original,

pre-takedown form. 

We thus remand to the district court to take up plaintiffs’ 

objections to new redactions from the reposted records on the 

merits (including examining whether plaintiffs have satisfied 

FOIA’s exhaustion requirements, 5 U.S.C. § 552(a)(6), and 

substantive provisions).

* * * 

We now turn to PETA’s argument that USDA’s reposting 

of records did not moot the case even as to materials without 

new redactions. Why so? PETA argues that USDA’s actions 

and statements, taken as a whole, do not meet the high bar set 

by the “voluntary cessation” doctrine. 

We review the district court’s dismissal for lack of subject 

matter jurisdiction on mootness grounds de novo, see, e.g., Del 

Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 

(D.C. Cir. 2009); the parties agree on that standard of review,

see PETA Br. 26–27, USDA Br. 12. Though a motion to 

dismiss is ordinarily handled on the pleadings, a defendant’s 

claim of voluntary cessation requires an evaluation of 

probabilities as to future conduct that can, as here, involve 
9

detailed inquiry beyond the pleadings that is “a matter for the

trial judge.” United States v. Concentrated Phosphate Exp. 

Ass’n, 393 U.S. 199, 204 (1968). A related inquiry takes place, 

of course, whenever a plaintiff supplements the pleadings with 

affidavits to establish a court’s jurisdiction. See Haase v. 

Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (“In 12(b)(1) 

proceedings, it has been long accepted that the judiciary may 

make ‘appropriate inquiry’ beyond the pleadings to ‘satisfy 

itself on authority to entertain the case.’” (quoting Gordon v. 

Nat’l Youth Work Alliance, 675 F.2d 356, 362–63 (D.C. Cir. 

1982) (citations omitted))). Though the inquiry into voluntary

cessation might be thought to invite a degree of deference to a

district court’s fact-finding role, our precedent appears not to 

recognize it. But cf. Comm. in Solidarity with People of El 

Salvador (CISPES) v. Sessions, 929 F.2d 742, 744–45 (D.C. 

Cir. 1991) (crediting, with limited analysis, a district court’s 

factual findings as to voluntary cessation on a motion to 

dismiss). In any event, even with a more deferential posture, 

we would remand for further proceedings in this case for the 

reasons we explain below. 

Typically, an end to offending behavior moots a case. But 

there are exceptions. As relevant here, “[m]ere voluntary 

cessation of allegedly illegal conduct does not moot a case,” for 

a defendant may be “free to return to his old ways.” 

Concentrated Phosphate, 393 U.S. at 203 (quotation marks and 

citation omitted in second phrase). But again, there is “an 

important exception to this important exception [to mootness].” 

Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 

382 F.3d 1276, 1283 (11th Cir. 2004). If a defendant can 

demonstrate that there is no reasonable expectation that the 

allegedly unlawful conduct will recur, the claim may be moot. 

“A case might become moot if subsequent events made it 

absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). In that 
10

event, the “‘heavy burden of persua[ding]’ the court that the 

challenged conduct cannot reasonably be expected to start up 

again lies with the party asserting mootness,” id. (citation 

omitted)—here, the agency. 

That general principle must be read in light of the 

“presumption of legitimacy accorded to the Government’s 

official conduct,” to which the Supreme Court has referred in 

the FOIA context. Nat’l Archives & Records Admin. v. Favish, 

541 U.S. 157, 174 (2004). A “presumption of regularity 

supports the official acts of public officers and, in the absence 

of clear evidence to the contrary, courts presume that they have 

properly discharged their official duties.” Id. (quoting United 

States v. Chemical Found. Inc., 272 U.S. 1, 14–15 (1926)). In 

analyses of “voluntary cessation,” many of our sister circuits 

have been ready to give declarations by (or on behalf of) 

government officials––public servants sworn to uphold the 

law––somewhat higher credence than statements made by 

private parties. See, e.g., Sossamon v. Lone Star State of Texas, 

560 F.3d 316, 325 (5th Cir. 2009) (“[G]overnment actors in 

their sovereign capacity and in the exercise of their official 

duties are accorded a presumption of good faith because they 

are public servants, not self-interested private parties. Without 

evidence to the contrary, we assume that formally announced 

changes to official governmental policy are not mere litigation

posturing.”), aff’d sub nom. Sossamon v. Texas, 563 U.S. 277 

(2011); accord America Cargo Transp., Inc. v. United States, 

625 F.3d 1176, 1180 (9th Cir. 2010); Troiano, 382 F.3d at 

1283; Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003); 

Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988); see 

also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 

F.3d 1096, 1116 n.15 (10th Cir. 2010) (dictum to similar 

effect); 13C Wright, Miller & Cooper, Federal Practice and 

Procedure § 3533.7 (3d ed. 2008) (similar); cf. Meeropol v. 

Meese, 790 F.2d 942, 952 (D.C. Cir. 1986) (holding that 

affidavits of government officials are entitled to a presumption 
11

of good faith in the context of locating responsive records to 

FOIA requests); Ground Saucer Watch, Inc. v. CIA, 692 F.2d 

770, 771 (D.C. Cir. 1981) (per curiam) (same). 

PETA asserts that USDA has failed to satisfy the 

“voluntary cessation” doctrine. PETA Br. 28–36. The district 

court disagreed. It underscored the temporary nature of the 

removals and, relying on statements in USDA’s letter of 

December 4, 2017, see J.A. 235–39, concluded that “there is no 

reasonable expectation the Department will remove the records 

again,” 285 F. Supp. 3d at 313. Our view diverges from that of

the parties and the district court. On the present record, we 

believe, there is not enough clarity fully to assess the agency’s 

intentions with respect to future posting of certain categories of 

records. 

The USDA letter is incomplete in key respects. It doesn’t 

express the agency’s position clearly enough to convince us 

that, as to all requested document types, it is “absolutely clear

that the allegedly wrongful behavior could not reasonably be 

expected to recur,” Laidlaw, 528 U.S. at 189 (emphasis added) 

(citation omitted)—even once we credit a presumption of 

regularity afforded to government parties. 

Before addressing USDA representations as to each 

category, we note three pertinent elements of the context. First, 

USDA’s aim in removing the records was to enhance privacy 

protections. Not only is this objective unproblematic in itself, 

but new administrations are entitled to reevaluate and modify 

agency practices, even longstanding ones. Cf. Motor Vehicle 

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 59 (1983) (Rehnquist, J., concurring in part, dissenting 

in part) (“A change in administration brought about by the 

people casting their votes is a perfectly reasonable basis for an 

executive agency’s reappraisal of the costs and benefits of its

programs and regulations.”). Second, the district court 
12

understood USDA’s announcement of February 3, 2017, as 

implying the takedowns would be temporary. See 285 F. Supp. 

3d at 313. (“[F]rom the beginning, the Department has 

indicated—and both parties have recognized—that the removal 

was a temporary measure”). USDA has lived up to this view 

by beginning to repost numerous records quite promptly. See 

id. at 311. Third, USDA did not shift its rationale after PETA 

filed suit or engage in “transitory litigation postur[ing],”

America Cargo Transp., 625 F.3d at 1180, or in the equivalent 

of what the Court has called “postcertiorari maneuvers,” Knox 

v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 307 

(2012). 

Proceeding by category, we address research facility 

annual reports, inspection reports (sans animal inventories), 

and lists of entities regulated under the AWA. 

Research Reports. Here the agency has adequately 

expressed its forward-looking plans. “APHIS intends to 

continue posting annual reports going forward consistent with 

its practice prior to February 3, 2017.” J.A. 236. 

With respect to the remaining two categories, inspection 

reports and entity lists, however, the record is less certain. 

USDA explains that it “is now posting all inspection reports for 

the most recent three-year period,” id., and says that “APHIS 

posts new inspection reports on a rolling basis,” “limited to the 

most recent three-year period,” J.A. 236–37. USDA’s 

treatment of entity lists is similarly confined to a description of 

currently ongoing practice. It explains that it “is posting the 

monthly list of active (current) licensees and registrants that are 

regulated under the AWA on the agency’s website,” but doesn’t 

broach future plans. Id. at 237.

Given the forward-looking character of the inquiry into a 

defendant’s intent, these fall short of the necessary precision. 
13

That is especially so given the agency’s view that its ongoing 

postings are discretionary. See USDA Br. 6, 12, 20. 

Put differently, the December 4, 2017 letter’s treatment of 

inspection reports and entity lists falls short of the kinds of

statements that courts have credited in the very cases the 

agency cites. See USDA Br. 18. In one instance, government 

counsel committed an agency to a “new permanent policy” that 

“agreed with” plaintiff’s position. America Cargo Transp., 625 

F.3d at 1180 (emphasis added in first quotation). In another 

context, a court found governmental “self-correction” that 

“appears genuine,” Ragsdale, 841 F.2d at 1365, based on a 

“public policy of non-enforcement” of a requirement that was 

“barred by clear Supreme Court precedent,” id. at 1365–66, and 

had “no real prospect” of repetition, id. at 1366. In a third, a 

court laid stress on “formally announced changes to official 

governmental policy.” Sossamon, 560 F.3d at 325. And in a 

fourth, the government gave exactly the “relief plaintiffs 

requested.” CISPES, 929 F.2d at 742. Neither USDA’s letter, 

nor the representations in its briefing or at oral argument, 

exhibits this level of clarity about inspection reports and entity 

lists. 

We thus remand for clarification with respect to USDA’s 

future plans to post inspection reports (apart from animal 

inventories) and lists of AWA regulated entities—and would 

have done so even had we accorded deference to factual 

findings of the district court. If the agency makes clear that it 

commits to timely posting on an ongoing basis, such a 

declaration will moot PETA’s non-redaction claims. 

In light of USDA’s seemingly unproblematic rationale for 

removing the records; the one-time nature of the takedown; the 

absence of any signs of bad faith in litigation; and a 

presumption of regularity when government officials express a 

clear intention to do as the complaint requests, we conclude that 
14

a declaration by (or on behalf of) USDA officials that the 

agency intends to post documents in the inspection reports and 

entity lists categories on an ongoing basis will moot PETA’s 

claims. This is so, we emphasize, even though USDA 

continues to assert that posting the records is a matter of 

discretion, rather than a FOIA-imposed duty (as plaintiffs 

would have it). Given our holding, we find that the district 

court did not abuse its discretion in denying plaintiffs’ request 

for discovery against the agency aimed at showing that the 

“voluntary cessation” doctrine isn’t met. See 285 F. Supp. 3d 

at 315 n.7; Citizens for Responsibility & Ethics in Washington 

v. Office of Admin., 566 F.3d 219, 221 (D.C. Cir. 2009).

* * * 

To sum up, as to reposted records featuring new 

redactions, the complaint is most plausibly read as requesting 

that USDA repost all information that those records contained 

before their takedown. The district court should thus proceed 

to the merits on remand. As to “voluntary cessation,” we affirm 

the mootness dismissal as to the research reports but remand 

for further elucidation as to the inspection reports and the entity 

lists. If the agency unambiguously commits to continued 

posting of those documents, plaintiffs’ claims should be 

dismissed as moot, without discovery, even if USDA continues 

to regard its postings as voluntary. 

 So ordered.