United States Court of Appeals FOR THE DISTRICT OF COLUMBIA
CIRCUIT Argued May 14, 2015Decided August 11, 2015 No. 14-5157
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, APPELLANT v. UNITED
STATES DEPARTMENT OF AGRICULTURE ANDTHOMAS J . VILSACK, IN HIS
OFFICIAL CAPACITY ASSECRETARY OF THE UNITED STATES DEPARTMENT OF
AGRICULTURE, APPELLEES Appeal from the United States District Court
for the District of Columbia (No. 1:13-cv-00976) MatthewD.Strugar
argued the cause for the
appellant.JeffreyS.KerrandDelciannaWinderswerewithhimon brief.
WilliamE.Havemann,Attorney,UnitedStates DepartmentofJ
ustice,arguedthecausefortheappellees.RonaldC.Machen, United States
Attorney at the time brief was filed, and Michael J. Singer,
Attorney, were with him on brief. 2
Before:GARLAND,ChiefJudge,andHENDERSONand MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON. Dubitante
opinion filed by Circuit Judge MILLETT. KARENLECRAFTHENDERSON,
CircuitJudge: In 2004,
theUnitedStatesDepartmentofAgriculture(USDAor
Agency)announcedthat,forthefirsttime,itintendedto
applytheprotectionsoftheAnimalWelfareAct(AWAor Act), 7 U.S.C. 2131
et seq., to birds.Although the Agency
hastakenstepstocraftavian-specificanimalwelfare regulations, it has
yet to complete its task after more than ten
yearsand,duringtheinterveningtime,ithasallegedlynot applied the
Acts general animal welfare regulations to birds.Frustrated with
the delay, People for the Ethical Treatment of
Animals(PETA)suedtheUSDA,arguingthatitsinaction
amountedtoagencyactionunlawfullywithheld,in
violationofsection706(1)oftheAdministrativeProcedure Act (APA), 5
U.S.C. 706(1).The district court granted the
USDAsmotiontodismiss,concludingthattheUSDAs enforcement decisions
are committed by law to its discretion.See id. 701(a)(2).For the
reasons set forth below, we affirm on different
grounds.I.BACKGROUND In1966,theCongressenactedtheAWAto,interalia,
insure that animals intended for use in research facilities or for
exhibition purposes or for use as pets are provided humane care and
treatment and to assure the humane treatment of
animalsduringtransportationincommerce.7U.S.C. 2131(1)(2).To effect
these goals, the Congress instructed
theUSDAtopromulgatestandardstogovernthehumane
handling,care,treatment,andtransportationofanimalsby 3 dealers,
research facilities, and exhibitors.Id.
2143(a)(1).Forsomeanimals,theUSDAisrequiredbystatuteto
promulgatespecies-specificregulations,seeid.
2143(a)(2)(B)(dogsandprimates),anditretainsthe discretion to
promulgate species-specific regulations for other covered animals,
see id. 2151.It has done so for, inter alia, hamsters, guinea pigs,
rabbits and marine mammals.See9 C.F.R.
3.253.28;3.503.53;3.1003.104.Allother
animalsbenefitfromtheprotectionoftheAWAsgeneral
animalwelfareregulations,whichestablishminimum
requirementsforhandling,housing,feeding,watering, sanitation,
ventilation, shelter from extremes of weather and
temperatures,adequateveterinarycare,andseparationby species.7
U.S.C. 2143(a)(2)(A); see9 C.F.R. 3.1253.128.
CompliancewiththeActandwiththeUSDAs implementing regulations is
accomplished through the Acts
licensure,inspectionandinvestigationrequirements.Its
predicatelicensurerequirementprovidesthatanimal dealer[s] and
exhibitor[s] must obtain[] a license from
theUSDAbeforetheybuy,sell,offertobuyorsell, transport or offer for
transportation any animal.7 U.S.C. 2134.Upon receiving an
application for licensure from a dealer or exhibitor, the USDA
issues a license in such form and manner as [it] may prescribe.Id.
2133.The Act also allowstheUSDAtounearthviolationsoftheActby
mak[ing]suchinvestigationsorinspectionsas[it]deems necessary.Id.
2146(a)(emphasisadded).Ithas
promulgatedregulationsprovidingthat,beforeobtaininga
license,[e]achapplicantmustdemonstratethathisorher premises and any
animals, facilities, vehicles, equipment, or
otherpremisesusedorintendedforuseinthebusiness comply with the
regulations and standards set by the USDA
andmustmakehisorheranimals,premises,facilities, 4 vehicles,
equipment, other premises, and records available for inspection . .
. to ascertain the applicants compliance with the standards and
regulations.9 C.F.R. 2.3(a). Although seemingly broad, the Acts
scope turns on the USDAs definition of animal.7 U.S.C. 2132(g).When
first enacted, the AWA protected only dogs, cats, monkeys
(nonhumanprimatemammals),guineapigs,hamsters,and rabbits.See Pub.
L. No. 89-544, 2(h), 80 Stat. 350, 351 (1966).For years, the USDA
excluded birds from the Acts
protection.SeeUSDA,MiscellaneousAmendmentsto Chapter, 36 Fed. Reg.
24,917, 24,919 (Dec. 24, 1971).
Theirstatuschangedin2002,whentheCongress amended the AWAs
definition of animal to exclude birds . .
.bredforuseinresearch.7U.S.C.2132(g).InterpretingtheCongresssexclusionofresearchaviansto
mean the inclusion of all other birds, the USDA updated its
regulations on J une 4, 2004, to make explicit that birds would
thenceforthbenefitfromtheActsprotections.Animal Welfare; Definition
of Animal, 69 Fed. Reg. 31,513, 31,513 (J une 4, 2004); seealso9
C.F.R. 1.1.On the same day it announced that it would apply the Act
to birds not bred for use in research, however, the USDA announced
that it d[id] not believe that the general standards under the AWA,
which were promulgated with an eye toward mammalian care, were
appropriate for birds.SeeAnimal Welfare; Regulations and
StandardsforBirds,Rats,andMice,69Fed.Reg.31,537, 31,539 (J une 4,
2004).The USDA issued an Advance Notice
ofProposedRulemaking(ANPR)foravian-specificanimal welfare
regulations.Id. Intheensuingnotice-and-commentperiod,theUSDA
received over 7,000 comments from a wide range of
sources.Basedonthecomments,theUSDAconsultedwith 5
veterinarians,economists,industrymembers,related
governmentagenciesandotherstodevelopasetofavian-specificregulations.ItalsoassignedtheAnimalandPlant
HealthInspectionService(APHIS)theUSDAsub-agency that administers
the AWAto assist with the process.The APHIS then hired an avian
health-and-welfare expert to help it accomplish its task.
Despitetheseefforts,theUSDAhasrepeatedlyset, missed, and then
rescheduled deadlines for the publication of proposed bird-specific
regulations.PETAv.USDA(PETA I), 7 F. Supp. 3d 1, 6 (D.D.C.
2013).During this time, the
USDAhasallegedlynotappliedtheAWAslicensureand
inspectionprovisionsorthegeneralanimalwelfare
regulationstobirds,althoughithasinformallyvisited facilities
accused of avian mistreatment.There is apparently
someconfusionattheAgencyaboutwhethertheAWA applies to birds at
all.Despite its regulatory pronouncement that birds are
AWA-regulated animals, seeAnimal Welfare; Definition of Animal, 69
Fed. Reg. at 31,513, the USDA has
respondedtosomebird-relatedcomplaintsbyinsistingthat birds are not
regulated under the AWA and do not fall within the jurisdiction of
the USDA.Indeed, the USDA responded
toaFreedomofInformationActrequestbystatingthat
[a]gencyemployeesconductedathoroughsearchoftheir
filesandadvisedourofficethatbirdsarenotbeing regulated.PETA I, 7 F.
Supp. 3d at 6. Frustrated by these representations and by reports
of bird-related abuse and neglect, PETA sued the USDA on J une 27,
2013, invoking section 706(1) of the APA and requesting the
district court to compel the USDA to take two actions it has
allegedlyunlawfullywithheld,5U.S.C. 706(1).PETA
askedthecourttocompel[]theUSDAto. . .publishfor public comment in
the Federal Register, by a Court-ordered 6
deadline,proposedrule(s)specifictobirdsandthen promulgate, by a
Court-ordered deadline, standards specific to birds.Compl.
7.Second, PETA requested the court to order the USDA to immediately
extend enforcement of the AWA to birds covered by the AWA, by
enforcing the general AWA standards that presently exist.1The USDA
responded with a motion to dismiss (or in the alternative, for
summary judgment),arguing,first,thatPETAlackedstandingand, second,
that PETA failed to state a claim because the AWA leaves
enforcement decisions to the USDAs non-justiciable discretion.
ThedistrictcourtrejectedtheUSDAsstanding argument.Recognizing that
an organizational plaintiff such as PETA [can] sue in its own
right, PETA I, 7 F. Supp. 3d at 7, the district court found that
PETA suffered two cognizable
injuries.First,unlesstheUSDAappliedtheAWAs
protectionstobirds,PETAcouldnotredressbird mistreatment by filing
complaints with the USDA and, as a result, PETA had to expend
resources to seek relief through other, less efficient and
effective means.Second, the USDAs failure to protect birds meant,
ipso facto, that the USDA was not creating bird-related inspection
reports that PETA could use to raise public awareness.Finding that
[t]hese are real, concrete obstacles to PETAs work, id., the
district court also concludedthatPETAhaddemonstratedtherequisite
causation and redressability, id. at 9.
1ThedistrictcourtdeniedPETAsrequestedmandatory
injunctivereliefrequiringtheUSDAtopromulgatebird-specific AWA
regulations.See PETA I, 7 F. Supp. 3d at 1315.PETA has abandoned
that argument on appeal. 7
ThedistrictcourtnonethelessdismissedPETAssuit,
concludingthatPETAfailedtostateaclaimbecause individual decisions
by USDA not to enforce the AWA with respect to particular avian
incidents . . . are unreviewable [as] committed to agency
discretion by law. Id. at 13 (quoting 5 U.S.C. 701(a)(2)).It
rejected PETAs arguments that the AWA sufficiently constrained the
USDAs discretion to make
itsenforcementdecisionsjusticiableandthattheUSDAs
allegedpolicyofnon-enforcement,underD.C.Circuitlaw, could be
challenged in court.Regarding the former, the court reasoned that
the AWA gave the USDA broad discretion to
conductinvestigationsorinspectionsas[it]deems necessary.Id. at 11
(emphasis in original).On the latter, the
courtfaultedPETAsfailuretoidentifyanyconcrete
statementfromUSDAannouncingageneralpolicynotto
regulatebirdsundertheAWAandcreditedtheUSDAs expressed. . .
officialpositiononthematterinits regulations bringing birds under
the scope of the AWA.Id. at12(quotationmarksomitted).2PETAmovedfor
reconsideration or, in the alternative, to amend its complaint,
both of which motions the district court denied.PETA then filed a
timely notice of appeal. II.ANALYSIS
Wereviewthedistrictcourtsdismissaldenovo, treat[ing] the complaints
factual allegations as true and . . .
grant[ing][PETA]thebenefitofallinferencesthatcanbe 2The district
court did, however, comment that the USDA would . . . be well
advised to educate its officials on the agencys
policyregardingbirdsnamely,thatbirdsareregulatedbythe AWA and do
fall under the agencys enforcement jurisdictionand to ensure that
they break their bad habit of misinforming the public on this
matter.PETA I, 7 F. Supp. 3d at 12 (emphases in original). 8
derivedfromthefactsalleged.RallsCorp.v.Comm.on ForeignInv.inU.S.,
758 F.3d 296, 31415 (D.C. Cir. 2014) (some alteration in
original).We need not, however, accept
thetruthofalegalconclusioncouchedasafactual
allegation.Trudeauv.FTC, 456 F.3d 178, 193 (D.C. Cir.
2006).Toavoiddismissal,PETAmustpleadsufficient factual matter . . .
to state a claim to relief that is plausible on itsface.
Ashcroftv.Iqbal,556U.S.662,678(2009)
(quotingBellAtl.Corp.v.Twombly,550U.S.544,570 (2007)). PETA has not
alleged that the USDAs delay in enforcing the AWA with regard to
birds is arbitrary and capricious, in violation of 5 U.S.C.
706(2)(A).See Compl. 67.And on appeal, PETA has abandoned its
effort to require the USDA
topromulgatebird-specificregulations,seeAppellants Br.
25;OralArg.Recording14:2215:50,anddoesnot
pursuetheallegationmadeinitscomplaintthattheUSDA
unreasonablydelayedenforcementofitsgeneralanimal
welfareregulationswithregardtobirds,inviolationof section 706(1) of
the APA, seeReply Br. 3233.The only question before us, then, is
whether PETAs complaint states a claim that the USDAs alleged
policy of not enforcing the general regulations with respect to
birdswithout regard to
thereasonablenessvelnonofthedelayinenforcementconstitutes agency
action unlawfully withheld, in violation of section 706(1) of the
APA.Before reaching that question, however, we must first address
PETAs standing to press its
claim.SeeCTSCorp.v.EPA,759F.3d52,57(D.C.Cir. 2014) (as a matter of
constitutional duty, court must assure itself of its jurisdiction
to act in every case). 9 A.STANDING
Asanorganization,PETAcanassertstandingonits own behalf, on behalf
of its members or both.Equal Rights
Ctr.v.PostProps.,Inc.,633F.3d1136,1138(D.C.Cir.
2011).Here,PETAassertsorganizationalstandingonly, which requires
it, like an individual plaintiff, to show actual
orthreatenedinjuryinfactthatisfairlytraceabletothe alleged illegal
action and likely to be redressed by a favorable court decision.
Id.(quoting Spannv.ColonialVill.,Inc.,
899F.2d24,27(D.C.Cir.1990));seealsoHavensRealty
Corp.v.Coleman,455U.S.363,37879(1982)(in
organizational-standingcase,courtsconductthesame
inquiryasinthecaseofanindividual:Hastheplaintiff
allegedsuchapersonalstakeintheoutcomeofthe
controversyastowarranthisinvocationoffederal-court
jurisdiction?(quotationmarksomitted)).Thekeyissueis
whetherPETAhassufferedaconcreteanddemonstrable injury to [its]
activities, mindful that, under our precedent, a
meresetbackto[PETAs]abstractsocialinterestsisnot
sufficient.EqualRightsCtr., 633 F.3d at 1138 (quotation marks
omitted); see also Am. Legal Found. v. FCC, 808 F.2d 84, 92 (D.C.
Cir. 1987) (The organization must allege that
discreteprogrammaticconcernsarebeingdirectlyand adversely affected
by the defendants actions.).3 3On appeal, the USDA does not argue
that PETA failed to
demonstratethecausationandredressabilityprongsofstanding.Because we
have an independent obligation to satisfy ourselves that
PETAhasArticleIIIstanding,wemustconsidercausationand
redressabilitysuasponteand,havingdoneso,agreewiththe district court
that the injuries complained ofUSDAs refusal to
takeenforcementactioninresponsetoPETAscomplaintsand USDAs failure
to compile the information PETA wants to use in
itseducationalmaterialsarecausedbytheagencyandthe 10 The United
States Supreme Court has made plain that a
concreteanddemonstrableinjuryto[an]organizations
activitieswiththeconsequentdrainontheorganizations
resourcesconstitutes far more than simply a setback to the
organizations abstract social interests and thus suffices for
standing.Havens Realty Corp., 455 U.S. at 379.We, in turn, have
elaborated as to when an organizations purported injury
isnotsufficientlyconcreteanddemonstrabletoinvokeour
jurisdiction.Forexample,anorganizationsdiversionof
resourcestolitigationortoinvestigationinanticipationof litigation
is considered a self-inflicted budgetary choice that cannot qualify
as an injury in fact for purposes of standing.Am. Soc. for
Prevention of Cruelty to Animals v. Feld Entmt,
Inc.,659F.3d13,25(D.C.Cir.2011);seealsoNatl
TaxpayersUnion,Inc.v.UnitedStates, 68 F.3d 1428, 1434
(D.C.Cir.1995)(Anorganizationcannot,ofcourse, manufacture the
injury necessary to maintain a suit from its expenditure of
resources on that very suit.).Nor is standing
foundwhentheonlyinjuryarisesfromtheeffectofthe
regulationsontheorganizationslobbyingactivities,Ams.
forSafeAccessv.DEA,706F.3d438,457(D.C.Cir.)
(quotationmarksomitted),cert.denied,134S. Ct.267 (2013), and cert.
denied sub nom. Olsen v. Drug Enforcement Admin.,134S.
Ct.673(2013),orwhenthe service
impairedispureissue-advocacy,Ctr.forLaw&Educ.v. DeptofEduc.,
396 F.3d 1152, 1162 (D.C. Cir. 2005).4To remedies soughtan order
compelling USDA to enforce the AWA with respect to birds . . .would
redress those injuries.PETA I, 7 F. Supp. 3d at
9.4ButseeAm.Soc.forPreventionofCruelty toAnimals, 659 F.3d at 27
([M]any of our cases finding Havens standing involved activities
that could just as easily be characterized as advocacyand, indeed,
sometimes are.). 11 determine whether an organizations injury is
concrete and demonstrableormerelyasetbacktoitsabstractsocial
interests, Havens Realty Corp., 455 U.S. at 379, we ask, first,
whether the agencysaction or omission to act injured the
[organizations]interestand,second,whetherthe
organizationuseditsresourcestocounteractthatharm.Equal Rights Ctr.,
633 F.3d at 1140. PETAsmissionistopreventcrueltyandinhumane
treatment of animals.Compl. 5.It accomplishes this goal
throughpubliceducation,crueltyinvestigations,research,
animalrescue,legislation,specialevents,celebrity
involvement,andprotestcampaigns.Id.Oneofthe primary ways in which
PETA accomplishes its mission is
educatingthepublicbyprovidinginformationaboutthe conditions of
animals held by particular exhibitors.J effrey S.KerrDecl.
16(KerrDecl.).Asthedistrictcourt
explained,theUSDAsrefusaltoapplytheAWAtobirds
perceptiblyimpairedPETAsmissionintworespects:it
precludedPETAfrompreventingcrueltytoandinhumane
treatmentoftheseanimalsthroughitsnormalprocessof submitting USDA
complaints and it deprived PETA of key information that it relies
on to educate the public.PETA I, 7 F. Supp. 3d at 8 (alterations
omitted). WeagreethatPETAhas,atthedismissalstage,5
adequatelyshownthattheUSDAsinactioninjuredits interests and,
consequently, PETA has expended resources to counteract those
injuries.Indeed, PETAs alleged injuries are
5SeeAbigailAllianceforBetterAccesstoDevelopmental
Drugsv.Eschenbach,469F.3d129,132(D.C.Cir.2006)(At each stage of
trial, the party invoking the courts jurisdiction must establish
the predicates for standing with the manner and degree of evidence
required at that stage of trial. (quotation marks omitted)). 12
materiallyindistinguishablefromthoseallegedbythe organizations in
Action Alliance of Senior Citizens of Greater
Philadelphiav.Heckler, 789 F.2d 931 (D.C. Cir. 1986).In
thatcase,fourorganizationsthatendeavor[ed],through
informational,counseling,referral,andotherservices,to improve the
lives of elderly citizens sued the Secretary of the
UnitedStatesDepartmentofHealthandHumanServices (HHS) because it
had, interalia, promulgated HHS-specific
regulationsthatwereallegedlyinconsistentwith
government-wideregulationsthatafford[ed]interested individuals and
organizations a generous flow of information
regardingservicesavailabletotheelderly.Id.at93537.According to the
organizations, the HHS-specific regulations . .
.significantlyrestrict[ed]thatflow.Id.at937.We
reversedthedistrictcourtsdismissalforlackofstanding, concluding
that the plaintiffs had pleaded the same type of
injuryastheplaintiffsinHavensRealty:thechallenged regulations
den[ied] the [plaintiffs] access to information and
avenuesofredresstheywishtouseintheirroutine
information-dispensing,counseling,andreferralactivities.Id. at
93738.We held that, [u]nlike the mere interest in a problem or [an]
ideological injury, the plaintiffs had alleged
inhibitionoftheirdailyoperations,aninjurybothconcrete and specific
to the work in which they are engaged.Id.at 938 (quotation marks
and citations omitted). So too here.Because PETAs alleged
injuriesdenial of accesstobird-relatedAWAinformationincluding,in
particular, investigatory information, and a means by which to seek
redress for bird abuseare concrete and specific to the work in
which they are engaged, id., we find that PETA has alleged a
cognizable injury sufficient to support standing.In other words,
the USDAs allegedly unlawful failure to apply
theAWAsgeneralanimalwelfareregulationstobirdshas perceptibly
impaired [PETAs] ability to both bring AWA 13
violationstotheattentionoftheagencychargedwith preventing avian
cruelty and continue to educate the
public.SeeAm.Soc.forPreventionofCrueltytoAnimals, 659 F.3d
at25.BecausePETAhasexpendedresourcestocounter
theseinjuries,ithasestablishedArticleIIIorganizational standing.
TheUSDAmakestworesponses,neitherofwhichwe find persuasive.First, it
argues that it is not at loggerheads
withPETAsmissionofpreventingcrueltytoanimals.Appellees Br. 1718.It
so contends because the USDA does not in fact mistreat animals nor
do its actions directly result in
themistreatmentofanimals.TheUSDA,however, misconstrues PETAs
alleged harms; they do not result from the mistreatment of birds by
third parties but rather from a lack of redress for its complaints
and a lack of information for
itsmembership,bothofwhich,PETAasserts,theUSDA would provide if it
complied with its legal obligations.See
PETAI,7F.Supp.3dat9.Moreover,althoughwehave
emphasizedtheneedforadirectconflictbetweenthe defendants conduct
and the organizations mission, Abigail
Alliance,469F.3dat133,theUSDAsallegedlyunlawful
conductdoeshamperanddirectlyconflictswithPETAs stated mission of
preventing cruelty and inhumane treatment
ofanimalsthrough,interalia,publiceducationand cruelty
investigations.Compl. 5.Finally, it bears noting that our at
loggerheads requirement exists because, [i]f the challenged conduct
affects an organizations activities, but is
neutralwithrespecttoitssubstantivemission,thenitis
entirelyspeculativewhetherthechallengedpracticewill
actuallyimpairtheorganizationsactivities.Am.Soc.for Prevention of
Cruelty to Animals, 659 F.3d at 25, 27 (quoting Natl Treasury Emps.
Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)).Here,
however, it is conceded that, if
theUSDAappliestheAWAsgeneralwelfarestandardsto 14 birds, it will
employ the same inspection reports and redress mechanisms for birds
that it currently uses for other
species.Accordingly,theUSDAschallengednon-actionplainly
impairsPETAsactivitiesinanon-speculativemannerby
requir[ing]PETAtodivertandredirectitslimited
resourcestocounteractandoffsetDefendantsunlawful
conductandomissions.Compl. 6.Forexample,PETA has alleged
that:[It]hassubmittednumerousformalAWA
complaintstotheUSDAregardingbirds.Kerr Decl. 7. When it submits
complaints to the USDA regarding
AWA-coveredanimalmistreatment,theUSDA
generallydispatchesaninspectortothefacilityat
issuetodetermineifanyAWAviolationsare occurring, and the resulting
USDA inspection reports are made available in an online
database.Id. 6.The USDA, however, has consistently refused [to]
takeactiononthesecomplaints,assertingthatit lacks jurisdiction and
that it does not regulate birds.Id. 7.
Consequently,PETAhasexpendedfinancial
resourcestoinvestigateandrespondtocomplaints about birds subjected
to inhumane treatment, and/or
toobtainappropriateandnecessaryreliefforthese animals,Compl.
6,byalternativemeans, includingresearchingthelabyrinthoflocaland
statecruelty-to-animalsandwildlifestatutes, regulations, and
policies, as well as federal animal-related laws other than the
AWA, Kerr Decl. 9.15 PETA is also forced to expend time and
resources preparing and submitting complaints to the pertinent
local,state,and/orfederalagencies. . .,which
wouldbeunnecessaryiftheUSDAwasproperly
regulatingbirdsusedforexhibitionunderthe AWA.Id. 10; see also id.
11 (describing twelve complaints PETA has been required to research
and prepare as a result of the USDAs failure to regulate birds
under the AWA). PETA would not have needed to expend (or expend
tothesameextent)theseresourcesabsent[the USDAs] failures to comply
with its mandates under theAWA.Compl. 6;seealsoKerrDecl. 13 (But
for the USDAs failure to regulate birds under
theAWA[,]PETAwouldnotneedtoundertake these extensive efforts and
expend the resources to do so.).
Ifitprevailsinthisaction,PETAwillnolonger
havetoexpendasmanyresourcespursuingother avenues . . . .Kerr Decl.
14. Additionally: One of the primary ways in which PETA works to
preventcrueltytoandinhumanetreatmentof
animalsusedforentertainmentisbyeducatingthe
public,especiallythroughinformationalservices.Id. 16; see also id.
(describing variety of means by which PETA disseminates
information). TheUSDAsAWAinspectionreportsarethe primary source of
information relied upon by PETA in preparing these educational
materials.Id. 17.16 [T]heUSDAsfailuretoregulatebirdsunderthe AWA .
. . deprives PETA of information on which it
routinelyreliesinitseffortstoeducatethepublic . . . .Id. 15.
Thisembargooninformationregardingthe
conditionsofbirdsusedforexhibitiondirectly conflicts with PETAs
mission to prevent cruelty to and inhumane treatment of animals and
frustrates its public education efforts.Id. 18.As a result of the
USDAs failure to regulate birds undertheAWA,PETAisrequiredtoexpend
resources to obtain information about the conditions ofbirds. . .
,includingthroughinvestigations,
research,andstateandlocalpublicrecords requests.Id. 19.But for the
USDAs failure to regulate birds under
theAWA,PETAwouldnotneedtoundertake. . . extensive efforts . . .
.Id. 20. Andfinally,PETAestimatesthat,asadirectresultofthe USDAs
failure to regulate birds . . . , it has been forced to expend more
than $10,000 on staff attorney time not related
tothislitigationandrelatedexpensesanditexpectsto continue expending
more than $3,000 per year on the same unless and until the court
grants thereliefrequested in this case.Id.
TheUSDAssecondargumentthatPETAsalleged injuries are self-inflicted
and thus non-cognizablefares no better.Granted, we have held that a
particular harm is
self-inflictedifitresultsnotfromanyactionstakenby[the agency], but
rather from the [organizations] own budgetary 17 choices.Fair Empt
Council of Greater Wash., Inc. v. BMC Mktg.Corp., 28 F.3d 1268,
1276 (D.C. Cir. 1994).That an organizationvoluntarily,orwillfully.
. .divertsits resources,however,doesnotautomaticallymeanthatit
cannot suffer an injury sufficient to confer standing.Equal Rights
Ctr., 633 F.3d at 1140 (alteration and citation
omitted).Wethenaskwhethertheorganizationundertookthe expenditures
in response to, and to counteract, the effects of
thedefendantsallegedunlawfulactsratherthanin
anticipationoflitigation.Id.Asalreadynoted,PETA
redirecteditsresourcesinresponsetoUSDAsallegedly unlawful failure
to provide the means by which PETA would
otherwiseadvanceitsmissionfilingcomplaintswiththe
USDAandusingtheUSDAsinformationforitsadvocacy purposes.Contrary to
the USDAs assertion, PETA did not bootstrap its way into court by
alleging that agency inaction renders its advocacy efforts more
expensive.Appellees Br. 21.
Insum,precedentmakesplainthat,ifanorganization
expendsresourcesinresponseto,andtocounteract,the
effectsofthedefendantsalleged[unlawfulconduct]rather than in
anticipation of litigation, Equal Rights Ctr., 633 F.3d at 1140, it
has suffered a concrete and demonstrable injury that suffices for
purposes of standing, HavensRealtyCorp., 455 U.S. at 379.PETA has
expendedand must continue to
expendresourcesduetotheUSDAsallegedlyunlawful failure to apply the
AWAs protections to birds and its alleged
injuriesfitcomfortablywithinourorganizational-standing
jurisprudence. B.FAILURE TO STATE A CLAIM Having won the standing
battle, PETA nonetheless loses
thewar.Asnoted,thesolenon-jurisdictionalquestionis 18
whethertheUSDAhasapolicyofnon-enforcementthat constitutes agency
action unlawfully withheld, in violation of
section706(1)oftheAPAregardlesswhetherthenon-enforcementhasgoneonforareasonableorunreasonable
lengthoftime.Thedistrictcourtfound,seePETAI,7F. Supp. 3d at 13,
and, on PETAs motion for reconsideration, iterated, see PETA v.
USDA (PETA II), 60 F. Supp. 3d 14, 18
(D.D.C.2014),thattheUSDAsenforcementdecisionsare
unreviewablebecausetheyarecommittedtoagency discretion by law.
PETAI, 7 F.Supp. 3d at 13(quoting 5 U.S.C.
701(a)(2));seealsoPETAII, 60 F. Supp. 3d at 1619 (same).PETA
maintains that the district court erred in two
ways.PETAfirstarguesthattheCongresstookawaythe
USDAsenforcementdiscretionbecause[t]heclear implication of the AWA
is that all entities wishing to sell or exhibit animals must first
obtain a license from the USDAand the agency may not, consistent
with the regime, announce
totheworldthatnosuchlicensewillberequiredtoany
facilitythatsellsorexhibitsanentireclassofanimals.Appellants Br. 31
(quotation marks and emphasis omitted).PETA further contends that
the USDAs failure to apply the general AWA standards is a
judicially reviewable wholesale abdication of enforcement as to an
entire biological class over the course of a dozen years.Id. at 29
(emphasis omitted). [A] party must first clear the hurdle of
[section] 701(a), which prohibits judicial review of agency action
to the extent that . . . agency action is committed to agency
discretion by law.Hecklerv.Chaney,470U.S.821,828(1985) (quotation
marks omitted).Section 701(a)(2) of the APA is not, however, a
jurisdictional bar.SeeOryszakv.Sullivan,
576F.3d522,52425&n.2(D.C.Cir.2009).Forthat
reason,weneednotdecidewhethertheUSDAhasinfact
adoptedageneralpolicyofnon-enforcementthatcouldbe 19
subjecttoreviewundertheAPA.6Instead,weaffirmthe
districtcourtonthealternativegroundthatPETAfailedto
plausiblyallegethattheUSDAsdecade-longinaction constitutes agency
action unlawfully withheld.See Munsell v. USDA, 509 F.3d 572, 59293
(D.C. Cir. 2007) (concluding requirement was non-jurisdictional but
affirming dismissal on alternative ground supported by record). In
Norton v. Southern Utah Wilderness Alliance (SUWA), the Supreme
Court set out the limits the APA places upon judicial review of
agency inaction.542 U.S. 55, 61
(2004).Relevanthere,theCourtheldthataclaimunder[section]
706(1)canproceedonlywhereaplaintiffassertsthatan
agencyfailedtotakeadiscreteagencyactionthatitis required to take,
id. at 64 (emphases in original), and cannot be used to enter
general orders compelling compliance with
broadstatutorymandates,id.at66.Itexplainedthatthe
discreteagencyactionlimitationprecludes. . .broad
programmaticattack[s]andtherequiredagencyaction limitation rules
out judicial direction of even discrete agency
actionthatisnotdemandedbylaw.Id.(emphasisin original).If, for
example, an agency is compelled by law to act within a certain time
period, but the manner of its action is left to the agencys
discretion, a court can compel the agency to act, but has no power
to specify what the action must be.Id. at 65. The USDA argues that
PETA cannot satisfy the SUWA
test.Weagree.PETAinsiststhattheUSDAmust promulgate[] standards that
apply to allanimals covered by the AWA, 7 U.S.C. 2143(a)(1), and
apply those standards
6Similarly,weneednotdecidewhetherthedistrictcourt imposed a
heightened pleading standard on PETAs allegation of agency
policy.Appellants Br. 45. 20 throughthelicensuresystem,id.
2133.ReplyBr.33 (emphasis in original).But even if the USDA has
adopted an interimpolicyofnon-enforcementpendingtheadoptionof
bird-specificregulations,asPETAalleges,nothinginthe AWA requires
the USDA to apply the general animal welfare
standardstobirds(whichstandardsitviews,atbest,as ineffective and,
at worst, as hazardous to avians, seeAnimal
Welfare;RegulationsandStandardsforBirds,Rats,and Mice, 69 Fed. Reg.
at 31,538397) before it has promulgated
moreappropriatebird-specificregulations.Cf.Cutlerv.
Hayes,818F.2d879,89293(D.C.Cir.1987)(upholding FDA policy of
postponing enforcement of the [Food, Drug,
andCosmetic]Actsefficacyrequirement. . .untilthe
completionof[theagencys]OTCdrugreviewprogram because Congress has
not given FDA an inflexible mandate to bring enforcement actions
against all violators of the Act (footnote omitted)).Therefore,
even assuming that the USDA is compelled by law to act, SUWA, 542
U.S. at 65, we have no power to say that it must do so before
finalizing its bird-specific regulations, at least in light of
PETAs abandonment ofitsargumentthattheUSDAunreasonablydelayed
enforcement,seeReplyBr.3233.Moreover,theAWAs mandatory licensure
requirement is directed to dealer[s] and
exhibitor[s]ofanimals,nottotheUSDA.See7U.S.C. 2134.While section
2133 of the AWA provides that the USDA shall issue licenses to
dealer[s] and exhibitor[s] upon
applicationthereforinsuchformandmanneras[it]may prescribe,id.
2133,thiscongressionaldirectivedoesnot mean that the USDA must
demand licensure in all instances.Thus, we cannot say that the USDA
has failed to take action it 7Seealso,e.g.,J ohannaBriscoeDecl.
17(APHISalso recognizes that breeding requirements for certain
species preclude
dailycleaningandhumaninterference(i.e.nestingbirdsmay purposely
crush their eggs if a stranger enters the vicinity.)).21 was
requiredtotake.SUWA, 542 U.S.at 64 (emphasis in original). For the
foregoing reasons, we affirm the district courts judgment of
dismissal. So ordered. MILLETT, CircuitJudge, dubitante:
Iftheslatewere
clean,Iwouldfeelobligatedtodissentfromthemajoritysstandingdecision.ButIamafraidthat
theslatehasbeen writtenupon, andthiscourtsorganizationalstanding
precedent will not let me extricate this case from its grasp.Orat
least not without making fine distinctions that would just skate
around the heart of the problem.The majority opinionholds that
standing exists because the governments inactioninjured PETAs
interest in having the Animal Welfare Act enforcedagainstcertain
thirdparties, andbecausePETA chose
todevoteitsownresourcestomakeupforthe
governmentsenforcementomission. Maj. Op.11 (emphases added).That
ruling is in grave tension with Article III precedent
andprinciples,suchastheprinciplethatanindividuals interest in
having the law properly enforced against others is not, without
more, a cognizable Article III injury. See, e.g.,Linda R.S. v.
Richard D., 410 U.S. 614, 619(1973); Sargeant v.Dixon, 130 F.3d
1067, 1068 (D.C. Cir. 1997). It is also hardtoreconcilewiththe
generalrulethataplaintiffs voluntaryexpenditure
ofresourcestocounteract governmental action that only indirectly
affects the plaintiffdoes not support standing. See Clapper v.
Amnesty Intl USA,133 S. Ct. 1138, 11481151 (2013).At bottom, PETA
thinks the government should do more
toenforcethelawagainstbirdexhibitors,andsohas voluntarily taken
steps to protect birds itself. That may be
laudable,butitisnotanArticleIIIredressableinjury.Ifcircuitprecedenthasbroughtus
tothepointwhere organizations get standing on terms that the
Supreme Court hassaidindividualscannot, thenitmaybetime,inan
appropriatecase,torevisitthepropermetesandboundsof organizational
standing.2I should note, at the outset, that my views do not in any
way question the sincerity of PETAs concern for neglected and
abused birds or its desire to better their conditions.Nor
canIcriticizethemajorityforitsdecision.Themajority opinion hews
faithfullyto precedential lines, as we must at this procedural
juncture. See GeneralComm.ofAdjustment, GO-386 v. Burlington
Northern & Santa Fe Ry. Co., 295 F.3d
1337,1340(D.C.Cir.2002)(circuitprecedentbindsus,
unlessanduntiloverturnedbythecourtenbancorby [h]igher [a]uthority)
(internal quotation marks
omitted).Organizationalstandingstartedfromthecommon-sense
determinationthatorganizations,likeindividuals,cansufferdirectandconcreteinjuriesforArticleIIIpurposes.See,
e.g., Warth v. Seldin, 422 U.S. 490, 511 (1974). At least
intheformseenhere, thedoctrine traces itsoriginstothe
SupremeCourtsdecisioninHavensRealtyCorp.v. Coleman,455
U.S.363(1982).Inthat case, Housing Opportunities Made Equal (HOME),
a group dedicated to achieving equal housing opportunity, and
individual plaintiffs brought a FairHousingActchallengetothe
raciallydiscriminatoryhousingpracticesofanapartmentcomplex
owner.See id. at 367369.The Fair Housing Act conferred
onallpersonsalegalrighttotruthfulinformationabout housing, id. at
373, by making it unlawful to represent to
anypersonbecauseofrace,color,religion,sex,handicap,familialstatus,ornationaloriginthatanydwellingisnot
available for inspection, sale, or rental when such dwelling is in
fact so available, 42 U.S.C.
3604(d).Afterfirstholdingthatanindividualplaintiffhad standing,
Havens, 455 U.S. at 374, the Supreme Court went on to rule that
HOME had standing as well, id. at 379. That is
unsurprisingbecausetheFairHousingActspecifically defines the
persons entitled to truthful housing information 3to include
associations as well as one or more individuals.42U.S.C.
3602(d).HOMEhadalsoidentifiedhowthe
discriminatorymisinformationitwasgivenabouthousing
opportunitiesdirectlyfrustratedandunraveleditseffortsto
matchindividualswith
availablehousing.Inparticular,HOMEallegedthatthechallenged
racialsteering practices frustrated * * * its efforts to assist
equal access to housing through counseling and other referral
services, and forced
ittodevotesignificantresourcestoidentifyandcounteract the unlawful
conduct targeted at it. Havens, 455 U.S. at
379.TheSupremeCourtconcludedthat, because theallegedpracticeshad
perceptiblyimpaired[thegroups] abilityto
providecounselingandreferralservices, theorganizationhad plainly
suffered an injury in fact. Id. That concrete and
demonstrableinjurytotheorganizationsactivities andconsequent drain
on the organizations resources, the Court stressed, represented far
more than simply a setback to the organizations abstract social
interests, which could not have conferredstanding.Id.Havens
recognition of HOMEs organizational standing makessense.Federal law
vested HOME with a specific legal right to truthful,
non-discriminatory housing information, and
HavensRealtysraciallydisparatemisinformationtargeted HOME
alongwiththeindividualsitwasaiding.The apartment owners violations
unraveled again and again the
workandresourcesthatHOMEhadputintoproviding housing and equal
housing opportunities for its clients.Put simply, what HOME used
its own resources, information, and client base to build up, Havens
Realtys racist lies tore down.That is the type of direct, concrete,
and immediate injury that Article III recognizes. See Fair
Elections Ohio v. Husted,
770F.3d456,460n.1(6thCir.2014)(Havensinvolveda
statutoryentitlementtotruthfulinformation, and[t]he misinformation
provided bytheHavensdefendants, i.e.[,] a
4lietoldtoblackrenters,includingamemberofthe
organization,thatnorentalunitswereavailable,directly
interferedwiththeorganizationsabilitytoprovidetruthful counseling
and referral services.); seealsoAmericanCanoe
Assn,Inc.v.CityofLouisaWater&SewerCommn,389 F.3d 536, 550
(6thCir. 2003) (Kennedy, J ., concurring in part
anddissentinginpart) (HOMEsinjurywasspecific,
cognizable,andparticularbecausethegroupencountered
significantdifficultyhelpingindividualplaintiffscounteract
discrimination directed at them in a localized area); 13A C.Wright,
A. Miller, & E. Cooper, Federal Practice & Procedure
3531.2,at100(3ded.2008) (HOME wasengagedin specific efforts to aid
particular people who in fact had been injured by housing
discrimination).TheproblemisnotHavens ortheconceptof organizational
standing.The problem is what our precedent hasdonewithHavens.
Asthiscaseillustrates,our organizational standing precedents now
hold that the required Article III injury need not bewhat the
defendant has done to the plaintiff; it can also be what the
defendant has not done to a third party.And the manifestation of
that injury is not that the defendant has torn down, undone,
devalued, or otherwise countermanded the organizations own
activities or deprived
itofastatutorilyconferredright.Itisinsteadafailureto facilitate or
subsidize through governmental enforcement the organizations
vindication of its own parallel interests. See Maj. Op.1113,17;
ActionAllianceofSeniorCitizensof Greater Philadelphia v. Heckler,
789 F.2d 931, 937 (D.C. Cir.
1986)(seniorcitizensgroupsprogrammaticconcerns
hamperedbyagencyregulationsthat(i)limitedthe
informationtheagencyhadpreviouslyprovided inother contexts, and
(ii) made raising certain challenges within the agency more
difficult); id. at 937938 (by pleading denial of
accesstoinformationandavenuesofredresstheywishto
5useintheirroutineinformation-dispensing,counselingand referral
activities, organizations have alleged inhibition of their daily
operations sufficient for standing purposes).1That takes standing
principles toand I think overthe
brink.Tobeclear,PETAdoesnotclaimhere thatthe Department of
Agriculture directly contributesto the unlawful mistreatment of
birds that PETA aims to halt, or has denied PETA information to
which any law or regulation entitles
it.NordoesPETAclaimthatthegovernmenthasdismantled,affirmativelyundermined,orengagedinacampaignof
misinformation that has damaged PETAs independent efforts
toprotectbirds.Instead,asthemajorityopinionexplains, PETAs asserted
Article III injuries are: PETA has filed complaints on which the
Department has not acted; PETA then chose to expend resources
pursuing alternative means of protecting birds; if it prevails,
PETAwillnothavetoexpendasmany
resourcespursuingothertypesofbirdprotection.Maj. Op. 1415 (quoting
Kerr Decl. 9, 14).1See
alsoASPCAv.FeldEntertainment,Inc.,659F.3d13,27
(D.C.Cir.2011)(reservingthequestionwhetheranorganizationhas
standing based on expend[ing] additional resources on public
educationtorebutthemisimpression,allegedlycausedby[the defendants]
practices); comparealso CenterforLaw&Educ.v.
DepartmentofEduc.,396F.3d1152,1162(D.C.Cir.2005)
(rejectingorganizationalstandingwheretheonlyservice
impairedispureissue-advocacy),with FeldEntertainment,659 F.3d at
2628 (impairment of a groups ability to provide advocacy services
mayqualify as injury where a defendants conduct is at loggerheads
with the groups mission) (quoting National Treasury Employees Union
v. United States, 101 F.3d 1423, 1429(D.C. Cir.1996)).6
PETAisnotreceiving inspectionreportsforbirds
thattheDepartmenthasvoluntarilyproduced after enforcement efforts
involving other animals, and the
absenceofsuchreportsmeansthatPETAexpends
resourcescompilingitsowninformationto
educatethepublic;ifsuccessful,PETAwouldrelyonthe
governmentsreportingandundertakeless extensiveeffortsofitsown. Maj.
Op.1516(quoting Kerr Decl.
20).Neitherofthoseshouldcountasjudiciallyredressableunder Article
III.Inaction on PETA ComplaintsThe Departments
failuretoactonPETAscomplaintsshould bea complete non-starter for
Article III purposes. The cases are legion holding that PETA has
nolegally protected or
judiciallycognizableinterestintheenforcementoftheAnimalWelfareActagainstthirdparties
foritsownsake.See, e.g., Simon v. Eastern Kentucky Welfare Rights
Org., 426 U.S. 26, 37 (1976) (It is settled doctrine that the
exercise of prosecutorial discretion cannot be challenged by one
who is himself neither prosecuted nor threatenedwith
prosecution.);Linda R.S., 410 U.S. at 619([I]n American
jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.).22SeealsoLujanv.DefendersofWildlife, 504 U.S. 555, 574578
(1992) (no standing based on generalized objection to insufficient
enforcement of the law); HighPlainsWireless,L.P.v.FCC, 276
F.3d599,606(D.C.Cir.2002)(nostandingtoobjecttothe agencys refusal
to sanction a third party); Sargeant, 130 F.3d at 1069
([T]heinterestsMohwishproffersintheprosecutionof 7Nor does PETAs
sincere and deep interest (Maj. Op. 11) in promoting the humane
treatment of birds get it across the Article III threshold. See
Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (Article III does
not permit any group with a bona fide special interest in the laws
enforcement to bring suit.); Gettmanv.DEA, 290 F.3d 430, 433 (D.C.
Cir. 2002) (Petitioners seem to believe that their commitment to
their cause and the alleged importance of their cause is enough to
confer Article III standing.It is
not.).3Sincethosegeneralinterestsinthelawandits
enforcementwillnotsuffice,PETAneededtoidentifya specific and
concretelegally protected interest of its ownthat has been injured
by thegovernments non-enforcementpractices. Lujan, 504 U.S. at 560.
But neither PETA nor the
majorityopinionhasdoneso.UnlikeHOMEsspecific
informationalrightundertheFairHousingAct,absolutely
nothingintheAnimalWelfareActinvestsPETAwithany
righttohaveitscomplaintsacteduponoritsresource-allocations
eased.That the Department of Agriculture accepts such private
complaints without any apparent statutory requirement to do
government officials and in seeing that the laws are enforcedare
not legally cognizable within the framework of Article III.).3See
also Valley Forge Christian College v. Americans United for
SeparationofChurch&State,Inc.,454U.S.464,486
(1982)([S]tandingisnotmeasuredbytheintensityofthelitigantsinterest
or the fervor of his advocacy.); FeldEntertainment, 659 F.3d at 24
([A]n organizations abstract interest in a problem is insufficient
to establish standing, no matter how longstanding the
interestandnomatterhowqualifiedtheorganizationisin evaluating the
problem.) (quotingSierra Club, 405 U.S. at 739).8so
isnotenough.Thedeprivationofaproceduralright
withoutsomeconcreteinterestthatisaffectedbythe
deprivationaproceduralrightinvacuoisinsufficientto
createArticleIIIstanding. Summersv.EarthIsland Institute, 555 U.S.
488, 496 (2009).Thus, absent the ability
todemonstrateadiscreteinjuryflowingfromthealleged violation,
PETAcannotestablishstandingmerelyby asserting that the [agency]
failed to process its complaint in accordance with law. Common
Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997).If PETA is not
injured in any legally relevant sense by the governments failure to
act on its complaints, how can its
decisiontoincuradditionalexpensesinthewakeofthat failure be
anything other than a self-chosen consequence of
anygovernmentalnon-enforcementdecision? Icannot
imaginethatSimonwouldhavecomeoutdifferentlyifthe Eastern Kentucky
Welfare Rights Organization had just added an allegation that it
had chosen to expend its own resources to shine a light on
hospitals mistreatment of the indigent that
theInternalRevenueServicestax decisionsallegedly tolerated.Nor, I
presume, could Linda R.S. have gotten into court if she had just
added to her complaint an allegationthat,
absentprosecution,shewouldhavetoexpendherown resources hiring a
private investigator or asking the employerofherchildsfather
togarnishhiswages.ArticleIIIs requirement of aconcrete injury to a
legally protected interest demands more than just creative
pleading.Underscoring the point, the Supreme Court recently held
that, where concerns about governmental action that was not
targetedattheplaintiffsdidnotconstituteanArticleIII injury,the
costsvoluntarilyincurredinresponseto those concerns could not fill
in the gap either. See Clapper, 133 S. Ct. at 1152. Surely that
case would not have been decided 9differently if Amnesty
International had simply alleged that it hadto divert its resources
to educatethe public about how to protect themselves against
government
surveillance.Finally,PETAscontentionthatitsresourceswillbe better
allocated if its complaints are acted upon runs into a fierce
separation-of-powersheadwind.Theclaimofinjury here is simply that,
given the Executive Branchs chosen level of enforcement under the
Animal Welfare Act,PETA mustexpendmore
resourcesthanitwouldotherwisehavetoin pursuit of its parallel
goals.SeeMaj. Op. 15 (if the suit is
successful,PETAwillnolongerhavetoexpendasmanyresources pursuing
other avenues) (emphasis added) (quoting Kerr Decl. 14).While this
case alleges non-enforcement, if standing exists here, then there
is no meaningful reason why suit could not be brought every time an
organization believes
thatthegovernmentisnotenforcingthelawasmuch,as
often,orasvigorouslyasitwouldlike.Andmaybea
differentgroupcouldsueifitbelievesthelawisbeing
enforcedtoomuchandsochoosestouseitsresourcesto advise the public
about the harms of over-enforcement.ArticleIIIsstandingrequirement
is meanttohelp[] preservetheConstitutionsseparationofpowersand
demarcatestheproperandproperlylimitedroleofthe courts in a
democratic society. Coalition for Mercury-Free
Drugsv.Sebelius,671F.3d1275,12781279(D.C.Cir. 2012) (quoting Warth,
422 U.S. at 498).Yet hinging judicial
superintendenceofExecutiveenforcementdecisionsonnothing more than a
groups unadorned interest in the laws purposes,
combinedwithjustadashofvolitionalcounter-expenditures,wouldmakethecourtsvirtuallycontinuing
monitors of the wisdom and soundness of Executive
action.Lujan,504U.S.at577(quotingAllenv.Wright,468U.S. 737,
760(1984)).10Failure to Produce Enforcement
ReportsPETAsclaimofinformationalinjuryshouldnotopen
theArticleIIIdooreither,foronesimplereason:Evenas alleged by PETA,
there is no suggestion that anything in the Animal Welfare Act or
any regulation gives PETA any legalright to such information or
reports.PETA thus may claim
thatitsresource-allocationdecisionsareinjuredbythe absence of such
reports from the agency; but that injury is not
evencolorablytiedtoalegallyprotectedinterest in obtaining that
information, as Lujan requires, 504 U.S. at 560. To be sure, the
majority opinions contrary determination
justwalksthepaththatcircuitprecedent hastrodden.In
ActionAlliance,thiscourtheldthatagrouppromotingthe
interestsoftheelderly hadorganizationalstandingbecause the
Secretary of Health and Human Services failed to apply to
herDepartmentthesameagediscriminationregulations applied to other
federal agencies.This court reasoned that, if the Department had
followedthe same information-disclosure
regulationsasotheragencies,thenit wouldhaveproduced more
information, which the plaintiff group could then use to refer its
members to services or to provide age-discrimination
counseling.Action Alliance, 789 F.2dat 935, 937.Action Alliance was
perhaps justifiable on its facts.Asin Havens itself, the
information sought was arguably required to be disclosed at least
by regulation, and was being put to a specific use by the
plaintiffs seeking to protect the legal rights of the elderly
individuals they served.See Cass R. Sunstein,Informational
Regulation and Informational Standing:Akinsand Beyond, 147 U. PA.
L. REV. 613, 664 (1999).Butin subsequentcases,wehavereliedonAction
Alliance for the proposition that organizational standing may exist
more broadly whenever information is essential to the 11injured
organizationsactivities,andwherethelackofthe
informationwillrenderthoseactivitiesinfeasible.Competitive
Enterprise Institute v. NHTSA, 901 F.2d 107, 122 (D.C. Cir. 1990);
see also Animal Legal Defense Fund, Inc. v.
Espy(EspyII),29F.3d720,724(D.C.Cir.1994)(extending a similar rule
to the Animal Welfare Act); Animal LegalDefenseFund,Inc.v.Espy
(EspyI),23F.3d496, 501502 (D.C. Cir. 1994) (same).4This case,
however, goes even further. At least in earlier cases, there was
something somewhere in the law that at least required the agency to
generate the reports in the first instance(even assuming that would
be enough to create a private right to such information). In our
Animal Welfare Act cases, for
example,theSecretarywasrequiredtoincludethe
informationatissueinanannualreportsubmittedto Congress. SeeEspyI,
23 F.3d at 501.5In this case, PETA points to nothing that requires
the Department to generate the enforcement reports that it finds so
helpful, let alone a legal 4We have also concluded, in the cases
brought under the Animal WelfareAct,
thattheorganizationalleginginformationalinjury failed to establish
that the zone-of-interests test had been
met.SeeEspyII,29F.3dat724;EspyI,23F.3dat502504.Butthe government
has not raised that challenge to PETAs suit here. That would not in
any event affect the jurisdictional analysis, because the Supreme
Court has since made clear that the zone-of-interests
analysisisnotastandinginquiryrequiredbyArticleIII.
SeeLexmarkIntl,Inc.v.StaticControlComponents,Inc., 134 S. Ct. 1377,
1388 & n.4(2014).5That requirement has since been
eliminated.See Federal Reports Elimination and Sunset Act of 1995,
Pub. L. No. 104-66, 3003,109 Stat. 707; see also 7 U.S.C. 2155
codifications
note.12basisforassertinganenforceableprivaterighttosuch
information. NordoesPETAclaimtobeusingthe information to educate
other individuals who are protected by the statute about their
legal rights.Thatpressestheconceptofinformationalstandingfarbeyond
anything the Supreme Court itself has recognized. InFECv.Akins,
524U.S.11(1998), theSupremeCourt recognized a claim of
informational injury when:(i) on the plaintiffs view of the law,
thegovernment ora third partywasrequired bystatute tomakepublic
theinformationat issue, id. at21,and(ii)theplaintiffsinterestinthe
informationwas directlyrelatedtotheexerciseofthe
personsownindividualrighttovote,themostbasicof political rights,
id. at 2425.We have thus recognized that [o]nly if the statute
grants a plaintiff a concrete interest in the information sought
will he be able to assert an injury in fact.Naderv.FEC, 725 F.3d
226, 229 (D.C. Cir. 2013).Absent such a statutory basis, we have
held that the claim of informational standingfails.6At least we had
until today.Furthermore, unlikeAkins where the claim was premised
on a desiretohave informationabouta groupsroleinan
electioninwhichtheplaintiffintendedtovote, PETAhas identified no
concrete pieceofinformation intheagencys possession thatit
isseeking,letalonethatithasanylegal rightto.
Theagencywouldnotevenacquirethedesired information unless it were
first to enforce the law as PETA 6See Feld Entertainment, 659 F.3d
at 2324; see also Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C.
Cir. 2002) (standing available at least where statute requires
information to be publicly disclosed and plaintiff plausibly claims
that the information would help it).13desires.But if PETA lacks
Article III standing to require the
agencytoenforcethelawagainstthirdparties,itsurely cannot get
standing through the back-door route of claiming injury by
theabsence of post-enforcement reports.To be sure, the Supreme
Courts decision in Akins did not
specificallydisplaceourprecedentfindingorganizational standing when
the failure to provide information impinge[d] on the plaintiffs
daily operations or [made] normal operations
infeasible.Akinsv.FEC,101F.3d731,735(D.C.Cir.
1996),vacatedby524U.S.at29;CompetitiveEnterprise Institute, 901
F.2d at 122(similar). But as this case makes all
tooclear,thebroadreachofourcaselawisgetting
increasinglyhardtosquare withSupremeCourtprecedent handed down
since Action Alliance.First, the notion that an organizations
desire to supply * * * information to its members and the injury it
suffers when the information is not forthcoming are without
moresufficienttoestablishstandingrunsheadlongintothe obstacle of
Sierra Club v. Morton.Foundation of EconomicTrends v. Lyng, 943
F.2d 79, 8485 (D.C. Cir. 1991).Sierra Club held that a groups mere
interest in a problem could not suffice for standing purposes, 405
U.S. at 739, and [i]t is
notapparentwhyanorganizationsdesireforinformation aboutthesame***
problemshouldrestonadifferent footing, Foundation of Economic
Trends, 943 F.2dat 85; see Akins, 101 F.3d at 746 (Sentelle, J .,
dissenting) (arguing that Action Alliance was inconsistent with
Sierra Club).To the extent, then, that PETA has organized one of
its many operations around disseminatinginformation to which it
does not have a legal entitlement, I can see no sound basis for
elevatingthegovernmentsfailuretofacilitatethose operations to the
level of an Article III injury. Doing so just 14confuses an
inconvenience withaninjuryinfacttoa legally protected interest,
Lujan, 504 U.S. at 560.Second, PETA does not seek information that
is in anywayconnectedtotheexerciseofarightconferredbythe Animal
Welfare Act, akinto the linkage between information andvoting
inAkin. PETAs purposeinseekingthis information appears to besimply
to have the information for its own educational and promotional
materials, so that it can conserveor redirect its own resources.
But [t]o hold that a plaintiff can establish injury in fact merely
by alleging that he has been deprived of the knowledge as to
whether a violation ofthelawhasoccurredwhateverthepersonaluseit
intends to make of that knowledgewould be tantamount to
recognizingajusticiableinterestintheenforcementofthe law.Common
Cause, 108 F.3d at 418.Finally, itishardtoseehowthedoctrinewehave
embracedcan practicallybecabined.[I]nformational
injury,initsbroadestsense,existsdayinanddayout,
wheneverfederalagenciesarenotcreatinginformationa member of the
public would like to have. Foundationof
EconomicTrends,943F.2dat85.IfPETAspositionis
correct,anyorganizationcould,aspartofitsmissionto
advanceenforcementofagivenlaw,begindisseminating information an
agency chooses to publish, and thereby
gainalegallyprotectedinterestinpreservingthatflowof information
throughsomeformofinformationaladverse possession. Could an
organizationdisseminate reports based on a
U.S.AttorneysOfficespublicpressreleasesand consequently claim a
justiciable interest in the enforcement of thefederalcriminalcode
becauseitwouldgeneratemore press releases? Surely not.And why
should the group status matteratall? SeeCommonCause, 108F.3dat417
([S]tandingrequirementsapplywithnolessforcetosuits 15brought by
organizational plaintiffs.). The same principles
thatpreventanyindividualcapedcrusaderfromusingthe
courtstovindicatehisorherviewsastotheproper enforcement of the laws
should preclude the same gambit by a group of likeminded
individuals.As for Batman or Wonder Woman, so too for the J ustice
League.* * *At bottom, standing in this case is grounded on a
claimed (i) protection from making voluntary resource choices when
responding tothegovernmentsfailuretoenforcethelaw
againstthirdparties,and(ii)informationgeneratedasa byproduct of the
governments enforcement activities withoutany alleged statutory
obligation to make it at all, let alone to makeit public.Ifind it
mightydifficulttoseeany real daylightbetweenthat
claimofstandingandthegrantofa justiciable interest in the
enforcement of the law that we have long said Article III does not
permit.