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Food Marketing Institute v. Argus Leader Media, dba Argus Leader

Paid petition · United States Court of Appeals for the Eighth Circuit, No. 17-1346 · judgment May 8, 2018

Decided · June 24, 2019
Pre-decision estimate: 5% cert probability (95% interval 3%–8%)

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, an Eighth Circuit decision below, and a dissent in the court below (flagged in the petition).

Questions presented

This Court has not yet addressed Exemption 4 of the Freedom of Information Act, which protects from disclosure all "confidential" private-sector "commercial or financial information" within the Government's possession. 5 U.S.C. § 552(b)(4). The Circuits, however, have adopted a definition of "confidential" that departs from the term's ordinary meaning, holding that this exemption applies only if disclosure is "likely * * * to cause substantial harm to the competitive position of" the source of the information. Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765,770 (D.C. Cir.1974). The D.C. Circuit fashioned this atextual test from its own sense of FOIA's purposes based on witness testimony in a legislative hearing about a predecessor bill from a prior Congress. The amorphous test has produced at least five different circuit splits as the Circuits have grappled with what constitutes a likelihood of substantial competitive harm. The questions presented are:

  1. Does the statutory term "confidential" in FOIA Exemption 4 bear its ordinary meaning, thus requiring the Government to withhold all "commercial or financial information" that is confidentially held and not publicly disseminated-regardless of whether a party establishes substantial competitive harm from disclosure-which would resolve at least five circuit splits?

  2. Alternatively, if the Court retains the substantial-competitive-harm test, is that test satisfied when the requested information could be potentially useful to a competitor (as the First and Tenth Circuits have held), or must the party opposing disclosure establish with near certainty a defined competitive harm like lost market share (as the Ninth and D.C. Circuits have held, and as the Eighth Circuit required here)?

Counsel of record

For petitioner
Gavin Robert Villareal
Baker Botts L.L.P.

For respondent
Robert Mark Loeb
Orrick, Herrington & Sutcliffe LLP

Case

Conference history
Distributed for 1 conference

Amicus briefs
4 cert-stage · 16 merits
(5 supporting pet./neither, 11 respondent)

Argument & decision

Argued April 22, 2019 — Evan A. Young · Robert M. Loeb. Audio and transcript

Decided June 24, 2019. Opinion by Gorsuch.

Proceedings

  1. Jul 26 2019
    JUDGMENT ISSUED.
  2. Jun 24 2019
    Judgment REVERSED and case REMANDED. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, and Kavanaugh, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg and Sotomayor, JJ., joined.
  3. Apr 22 2019
    Argued. For petitioner: Evan A. Young, Austin, Tex.; and Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae). For respondent: Robert M. Loeb, Washington, D. C.
  4. Apr 05 2019
    Reply of petitioner Food Marketing Institute filed. (Distributed)
  5. Apr 01 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Mar 27 2019
    Record received from the U.S.D.C. Dist. of South Dakota Southern Division. (1 Box).
  7. Mar 25 2019
    Brief amicus curiae of New Hampshire Right to Life filed. (Distributed)
  8. Mar 25 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  9. Mar 25 2019
    Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
  10. Mar 25 2019
    Brief amici curiae of Public Citizen, Center for Science in the Public Interest, Collaboration for Research Integrity filed. (Distributed)
  11. Mar 25 2019
    Brief amici curiae of Freedom of Information Act and First Amendment Scholars filed. (Distributed)
  12. Mar 25 2019
    Brief amici curiae of Reporters Committee for Freedom of the Press & 36 Media Organizations filed. (Distributed)
  13. Mar 25 2019
    Brief amici curiae of Detention Watch Network, Human Rights Defense Center and Prison Policy Initiative filed. (Distributed)
  14. Mar 25 2019
    Affidavit of Service of BioScience Advisors, Inc. not accepted for filing. (Corrected version submitted).
  15. Mar 25 2019
    Corrected Affidavit of Service filed with respect to amicus curiae brief of BioScience Advisors, Inc. (March29, 2019).
  16. Mar 25 2019
    Brief amicus curiae of BioScience Advisors, Inc. filed. (Distributed)
  17. Mar 25 2019
    Brief amici curiae of AI Now Institute at New York University, et al. filed. (Distributed)
  18. Mar 25 2019
    Brief amicus curiae of American Small Business League filed. (To be Reprinted) (Distributed)
  19. Mar 25 2019
    Brief amicus curiae of American Small Business League filed. (April 16, 2019) (Distributed)
  20. Mar 22 2019
    Brief amici curiae of Cause of Action Institute, et al. filed. (Distributed)
  21. Mar 21 2019
    Record requested from the U.S.C.A. 8th Circuit.
  22. Mar 20 2019
    CIRCULATED
  23. Mar 18 2019
    Brief of respondent Argus Leader Media, d/b/a Argus Leader filed. (Distributed)
  24. Feb 22 2019
    Brief amicus curiae of United States filed.
  25. Feb 22 2019
    Brief amicus curiae of Retail Litigation Center, Inc. filed.
  26. Feb 22 2019
    Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
  27. Feb 22 2019
    Brief amici curiae of Alliance of Marine Mammal Parks & Aquariums, et al. filed.
  28. Feb 21 2019
    Brief amici curiae of National Association of Convenience Stores, et al. filed.
  29. Feb 15 2019
    Brief of petitioner Food Marketing Institute filed.
  30. Feb 15 2019
    Joint appendix filed (2 vols).
  31. Feb 11 2019
    SET FOR ARGUMENT on Monday, April 22, 2019
  32. Jan 31 2019
    Blanket Consent filed by Petitioner, Food Marketing Institute.
  33. Jan 30 2019
    Blanket Consent filed by Respondent, Argus Leader Media, d/b/a Argus Leader.
  34. Jan 11 2019
    Petition GRANTED.
  35. Dec 26 2018
    DISTRIBUTED for Conference of 1/11/2019.
  36. Dec 24 2018
    Reply of petitioner Food Marketing Institute filed.
  37. Dec 14 2018
    Brief of respondent Argus Leader Media, d/b/a Argus Leader in opposition filed.
  38. Nov 20 2018
    Consent to change of Respondent's counsel of record of Argus Leader Media, d/b/a Argus Leader not accepted for filing. (November 27, 2018 -- Document not of the type that is to be filed electronically)
  39. Nov 14 2018
    Brief amicus curiae of Retail Litigation Center, Inc. filed.
  40. Nov 14 2018
    Brief amici curiae of Alliance of Marine Mammal Parks & Aquariums, et al. filed.
  41. Nov 14 2018
    Brief amicus curiae of Chamber of Commerce of the United States of America filed.
  42. Nov 14 2018
    Brief amici curiae of National Association of Convenience Stores, et al. filed.
  43. Oct 29 2018
    Motion to extend the time to file a response is granted and the time is extended to and including December 14, 2018.
  44. Oct 25 2018
    Motion to extend the time to file a response from November 14, 2018 to December 14, 2018, submitted to The Clerk.
  45. Oct 11 2018
    Petition for a writ of certiorari filed. (Response due November 14, 2018)
  46. Aug 29 2018
    Application (18A146) referred to the Court.
  47. Aug 29 2018
    Application (18A146) granted by the Court. The application to recall and stay the mandate, presented to Justice Gorsuch and by him referred to the Court, is granted, and the mandate of the United States Court of Appeals for the Eighth Circuit in case No. 17-1346 is recalled and stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Ginsburg, Justice Sotomayor, and Justice Kagan would deny the application.
  48. Aug 21 2018
    Reply of applicant Food Marketing Institute filed.
    ReplyProof of Service
  49. Aug 16 2018
    Response to application from respondent Argus Leader Media, D/B/A Argus Leader filed.
    Main DocumentProof of Service
  50. Aug 09 2018
    UPON CONSIDERATION of the application of counsel for the applicant, IT IS ORDERED that the mandate of the United States Court of Appeals for the Eighth Circuit, case No. 17-1346, is hereby recalled and stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, August 16, 2018, by 4 p.m. The reply, if any, is to be filed by 4 p.m., Tuesday, August 21, 2018.
  51. Aug 07 2018
    Application (18A146) to recall and stay mandate pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Gorsuch.
    Main DocumentLower Court Orders/OpinionsProof of Service