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Scott Brancheau; Marion v. Seaworld Parks & Entertainment

January 18, 2012

SCOTT BRANCHEAU; MARION LOVERDE; CHARLES LOVERDE; AND DEBORAH FROGAMENI, PLAINTIFFS,
v.
SEAWORLD PARKS & ENTERTAINMENT, LLC, INTERVENOR PLAINTIFF, SECRETARY OF LABOR; ASSISTANT SECRETARY OF LABOR; OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; AND UNITED STATES DEPARTMENT OF LABOR, DEFENDANTS,



ORDER

This matter comes before the Court without a hearing on the Motion for Summary Judgment and Motion to Dismiss (Doc. 27) filed by the Defendants, the response in opposition (Doc. 38) filed by the Plaintiffs, and the Defendants' reply (Doc. 42).

I. Background

This case arises out of the February 2010 death at Sea World of animal trainer Dawn Brancheau ("Brancheau") as the result of an attack by a killer whale during a performance. Brancheau's death and the circumstances surrounding it were investigated by a number of entities, including OSHA and the Orange County Sheriff's Office. During its investigation, OSHA obtained from the Sheriff's Office a copy of an underwater video (henceforth, the "Performance Video"), which was shot by Intervenor Sea World Parks & Entertainment, LLC during the performance. According to written summaries reviewed by the Court, the pertinent seven-minute-long portion of the Performance Video shows glimpses of Brancheau and the killer whale during the attack. In early 2011, OSHA released copies of its accident investigation file. Included in the file was an unredacted, one-paragraph writen summary of the Performance Video.

The Plaintiffs are members of Brancheau's family. They seek to prevent OSHA from releasing the Performance Video. The Plaintiffs also seek to block the release of similar items, such as photographs depicting the attack or the efforts to rescue Brancheau and to recover her body. The Plaintiffs refer to the videotape and similar items as "Death Scene Materials". However, OSHA contends that the Performance Video is the only item in its possession that would fall into this category. Accordingly, for simplicity's sake, throughout this order the Court refers only to the Performance Video.*fn1

Originally, the Plaintiffs attempted to block the release of the Performance Video under the provisions of the Freedom of Information Act ("FOIA"), the Privacy Act, and the Declaratory Judgment Act. However, on October 11, 2011, the Plaintiffs filed an amended complaint (Doc. 23) in which they characterize this action as a "reverse" FOIA suit, brought pursuant to the provisions of the Administrative Procedure Act ("APA").

II. Legal Standards

A. Summary Judgment

A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986) (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the nonmoving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("conclusory allegations without specific supporting facts have no probative value").

The Court must consider all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolve all reasonable doubts against the moving party. Anderson, 477 U.S. at 255. The Court is not, however, required to accept all of the non-movant's factual characterizations and legal arguments. Beal v. Paramount Pictures Corp.,20 F.3d 454, 458-59 (11th Cir 1994).

B. The Administrative Procedures Act

The APA provides this Court with jurisdiction to review "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. "The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or found to be] without observance of procedure required by law." 5 U.S.C. § 706(2). This standard is "exceedingly deferential." Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996). The court's role is to ensure that the agency came to a rational conclusion, "not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Preserve Endangered Areas of Cobb's History, Inc. (" PEACH") v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996).

The APA defines "agency action" as including "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act". 5 U.S.C. ยง 551(13). In addition, the APA requires that to achieve standing to obtain judicial review of agency action, a party must be "adversely affected or ...


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