PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, APPELLANT v. UNITED STATES DEPARTMENT OF AGRICULTURE AND THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, APPELLEES
No. 14-5157
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 2015 Decided August 11, 2015
Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-00976)
William E. Havemann, Attorney, United States Department of Justice, argued the cause for the appellees. Ronald C. Machen, United States Attorney at the time brief was filed, and Michael J. Singer, Attorney, were with him on brief.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dubitante opinion filed by Circuit Judge MILLETT.
KAREN LECRAFT HENDERSON, Circuit Judge: In 2004, the United States Department of Agriculture (USDA or Agency) announced that, for the first time, it intended to apply the protections of the Animal Welfare Act (AWA or Act),
I. BACKGROUND
In 1966, the Congress enacted the AWA to, inter alia, “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 animals during transportation in commerce.”
Compliance with the Act and with the USDA‘s implementing regulations is accomplished through the Act‘s licensure, inspection and investigation requirements. Its predicate licensure requirement provides that animal “dealer[s]” and “exhibitor[s]” must “obtain[] a license” from the USDA before they “buy, sell, offer to buy or sell, transport or offer for transportation” any “animal.”
Although seemingly broad, the Act‘s scope turns on the USDA‘s definition of “animal.”
Their status changed in 2002, when the Congress amended the AWA‘s definition of “animal” to exclude “birds . . . bred for use in research.”
In the ensuing notice-and-comment period, the USDA received over 7,000 comments from a wide range of sources. Based on the comments, the USDA consulted with
Despite these efforts, the USDA “has repeatedly set, missed, and then rescheduled deadlines for the publication of proposed bird-specific regulations.” PETA v. USDA (PETA I), 7 F. Supp. 3d 1, 6 (D.D.C. 2013). During this time, the USDA has allegedly not applied the AWA‘s licensure and inspection provisions or the general animal welfare regulations to birds, although it has informally visited facilities accused of avian mistreatment. There is apparently some confusion at the Agency about whether the AWA applies to birds at all. Despite its regulatory pronouncement that birds are AWA-regulated animals, see Animal Welfare; Definition of Animal, 69 Fed. Reg. at 31,513, the USDA has responded to some bird-related complaints by insisting that birds are not regulated under the AWA and do not fall within the jurisdiction of the USDA. Indeed, the USDA responded to a Freedom of Information Act request by stating that “[a]gency employees conducted a thorough search of their files and advised our office that birds are not being 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 June 27, 2013, invoking section 706(1) of the APA and requesting the district court to compel the USDA to take two actions it has allegedly “unlawfully withheld,”
The district court rejected the USDA‘s standing 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, unless the USDA applied the AWA‘s protections to birds, PETA could not redress bird 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 USDA‘s 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 PETA‘s work,” id., the district court also concluded that PETA had demonstrated the requisite causation and redressability, id. at 9.
II. ANALYSIS
We review the district court‘s dismissal de novo, “treat[ing] the complaint‘s factual allegations as true and . . . grant[ing] [PETA] the benefit of all inferences that can be
PETA has not alleged that the USDA‘s delay in enforcing the AWA with regard to birds is arbitrary and capricious, in violation of
As an organization, PETA “can assert standing on its own behalf, on behalf of its members or both.” Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, PETA asserts “organizational standing” only, “which requires it, like an individual plaintiff, to show ‘actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.’ ” Id. (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982) (in organizational-standing case, courts “conduct the same inquiry as in the case of an individual: Has the plaintiff alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction?” (quotation marks omitted)). The key issue is whether PETA has suffered a “concrete and demonstrable injury to [its] activities,” mindful that, under our precedent, “a mere setback to [PETA‘s] abstract social interests is not sufficient.” Equal Rights Ctr., 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 discrete programmatic concerns are being directly and adversely affected by the defendant‘s actions.“).3
The United States Supreme Court has made plain that a “concrete and demonstrable injury to [an] organization‘s activities—with the consequent drain on the organization‘s resources—constitutes far more than simply a setback to the organization‘s 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 organization‘s purported injury is not sufficiently concrete and demonstrable to invoke our jurisdiction. For example, “an organization‘s diversion of resources to litigation or to investigation in anticipation of 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 Entm‘t, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011); see also Nat‘l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.“). “Nor is standing found when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities,” Ams. for Safe Access v. DEA, 706 F.3d 438, 457 (D.C. Cir.) (quotation marks omitted), cert. denied, 134 S. Ct. 267 (2013), and cert. denied sub nom. Olsen v. Drug Enforcement Admin., 134 S. Ct. 673 (2013), or when the ” ‘service’ impaired is pure issue-advocacy,” Ctr. for Law & Educ. v. Dep‘t of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005).4 To
PETA‘s mission is to prevent “cruelty and inhumane treatment of animals.” Compl. ¶ 5. It accomplishes this goal through “public education, cruelty investigations, research, animal rescue, legislation, special events, celebrity involvement, and protest campaigns.” Id. One of the “primary” ways in which PETA accomplishes its mission is “educating the public” by providing “information about the conditions of animals held by particular exhibitors.” Jeffrey S. Kerr Decl. ¶ 16 (Kerr Decl.). As the district court explained, the USDA‘s refusal to apply the AWA to birds “perceptibly impaired” PETA‘s mission in two respects: it “precluded PETA from preventing cruelty to and inhumane treatment of these animals through its normal process of 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).
We agree that PETA has, at the dismissal stage,5 adequately shown that the USDA‘s inaction injured its interests and, consequently, PETA has expended resources to counteract those injuries. Indeed, PETA‘s alleged injuries are
So too here. Because PETA‘s alleged injuries—denial of access to bird-related AWA information including, in particular, investigatory information, and a means by which to seek redress for bird abuse—are “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 USDA‘s allegedly unlawful failure to apply the AWA‘s general animal welfare regulations to birds has “perceptibly impaired [PETA‘s] ability” to both bring AWA
The USDA makes two responses, neither of which we find persuasive. First, it argues that it is not “at loggerheads” with PETA‘s mission of preventing cruelty to animals. Appellee‘s Br. 17-18. It so contends because the USDA does not in fact mistreat animals nor do its actions directly result in the mistreatment of animals. The USDA, however, misconstrues PETA‘s 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 its membership,” both of which, PETA asserts, the USDA would provide if it complied with its legal obligations. See PETA I, 7 F. Supp. 3d at 9. Moreover, although we have emphasized the need for “a direct conflict between the defendant‘s conduct and the organization‘s mission,” Abigail Alliance, 469 F.3d at 133, the USDA‘s allegedly unlawful conduct does hamper and directly conflicts with PETA‘s stated mission of preventing “cruelty and inhumane treatment of animals” through, inter alia, “public education” and “cruelty investigations.” Compl. ¶ 5. Finally, it bears noting that our “at loggerheads” requirement exists because, “[i]f the challenged conduct affects an organization‘s activities, but is neutral with respect to its substantive mission,” then it is ” ‘entirely speculative’ whether the challenged practice will actually impair the organization‘s activities.” Am. Soc. for Prevention of Cruelty to Animals, 659 F.3d at 25, 27 (quoting Nat‘l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). Here, however, it is conceded that, if the USDA applies the AWA‘s general welfare standards to
- “[It] has submitted numerous formal AWA complaints to the USDA regarding birds.” Kerr Decl. ¶ 7.
- When it submits complaints to the USDA regarding AWA-covered animal mistreatment, the “USDA generally dispatches an inspector to the facility at issue to determine if any AWA violations are occurring, and the resulting USDA inspection reports are made available in an online database.” Id. ¶ 6.
- The USDA, however, “has consistently refused [to] take action on these complaints, asserting that it lacks jurisdiction and that it does not regulate birds.” Id. ¶ 7.
- Consequently, PETA “has expended financial resources to investigate and respond to complaints about birds subjected to inhumane treatment, and/or to obtain appropriate and necessary relief for these animals,” Compl. ¶ 6, by alternative means, including “researching the labyrinth of local and state cruelty-to-animals and wildlife statutes, regulations, and policies, as well as federal animal-related laws other than the AWA,” Kerr Decl. ¶ 9.
“PETA is also forced to expend time and resources preparing and submitting complaints to the pertinent local, state, and/or federal agencies . . . , which would be unnecessary if the USDA was properly regulating birds used for exhibition under the AWA.” Id. ¶ 10; see also id. ¶ 11 (describing twelve “complaints PETA has been required to research and prepare as a result of the USDA‘s failure to regulate birds under the AWA“). - PETA “would not have needed to expend (or expend to the same extent) these resources absent [the USDA‘s] failures to comply with its mandates under the AWA.” Compl. ¶ 6; see also Kerr Decl. ¶ 13 (“But for the USDA‘s failure to regulate birds under the AWA[,] PETA would not need to undertake these extensive efforts and expend the resources to do so.“).
- “If it prevails in this action, PETA will no longer have to expend as many resources pursuing other avenues . . . .” Kerr Decl. ¶ 14.
Additionally:
- “One of the primary ways in which PETA works to prevent cruelty to and inhumane treatment of animals used for entertainment is by educating the public, especially through informational services.” Id. ¶ 16; see also id. (describing variety of means by which PETA disseminates information).
- “The USDA‘s AWA inspection reports are the primary source of information relied upon by PETA in preparing these educational materials.” Id. ¶ 17.
“[T]he USDA‘s failure to regulate birds under the AWA . . . deprives PETA of information on which it routinely relies in its efforts to educate the public . . . .” Id. ¶ 15. - “This embargo on information regarding the conditions of birds used for exhibition directly conflicts with PETA‘s mission to prevent cruelty to and inhumane treatment of animals and frustrates its public education efforts.” Id. ¶ 18.
- “As a result of the USDA‘s failure to regulate birds under the AWA, PETA is required to expend resources to obtain information about the conditions of birds . . . , including through investigations, research, and state and local public records requests.” Id. ¶ 19.
- “But for the USDA‘s failure to regulate birds under the AWA, PETA would not need to undertake . . . extensive efforts . . . .” Id. ¶ 20.
And finally, “PETA estimates that, as a direct result of the USDA‘s failure to regulate birds . . . , it has been forced to expend more than $10,000 on staff attorney time not related to this litigation and related expenses” and it expects to “continue expending more than $3,000 per year on the same unless and until the court grants the relief requested in this case.” Id.
The USDA‘s second argument—that PETA‘s alleged injuries are self-inflicted and thus non-cognizable—fares no better. Granted, we have held that a “particular harm is self-inflicted” if “it results not from any actions taken by [the agency], but rather from the [organization‘s] own budgetary
In sum, precedent makes plain that, if an organization expends resources “in response to, and to counteract, the effects of the defendants’ alleged [unlawful conduct] 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, Havens Realty Corp., 455 U.S. at 379. PETA has expended—and must continue to expend—resources due to the USDA‘s allegedly unlawful failure to apply the AWA‘s protections to birds and its alleged injuries fit comfortably within our organizational-standing jurisprudence.
B. FAILURE TO STATE A CLAIM
Having won the standing battle, PETA nonetheless loses the war. As noted, the sole non-jurisdictional question is
“[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.” Heckler v. Chaney, 470 U.S. 821, 828 (1985) (quotation marks omitted). Section 701(a)(2) of the APA is not, however, a jurisdictional bar. See Oryszak v. Sullivan, 576 F.3d 522, 524-25 & n.2 (D.C. Cir. 2009). For that reason, we need not decide whether the USDA has in fact adopted a general policy of non-enforcement that could be
In Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55 (2004), the Supreme Court set out the “limits the APA places upon judicial review of agency inaction.” Id. at 61. Relevant here, the Court held that “a claim under [section] 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take,” id. at 64 (emphases in original), and cannot be used “to enter general orders compelling compliance with broad statutory mandates,” id. at 66. It explained that the “discrete agency action” limitation “precludes . . . broad programmatic attack[s]” and the “required agency action” limitation “rules out judicial direction of even discrete agency action that is not demanded by law.” Id. (emphasis in 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 agency‘s 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. We agree. PETA insists that the USDA must “promulgate[] standards that apply to all animals covered by the AWA,
For the foregoing reasons, we affirm the district court‘s judgment of dismissal.
So ordered.
That ruling is in grave tension with Article III precedent and principles, such as the principle that an individual‘s 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 hard to reconcile with the general rule that a plaintiff‘s voluntary expenditure of resources to counteract governmental action that only indirectly affects the plaintiff does not support standing. See Clapper v. Amnesty Int‘l USA, 133 S. Ct. 1138, 1148-1151 (2013).
At bottom, PETA thinks the government should do more to enforce the law against bird exhibitors, and so has voluntarily taken steps to protect birds itself. That may be laudable, but it is not an Article III redressable injury. If circuit precedent has brought us to the point where organizations get standing on terms that the Supreme Court has said individuals cannot, then it may be time, in an appropriate case, to revisit the proper metes and bounds of “organizational standing.”
“Organizational standing” started from the common-sense determination that organizations, like individuals, can suffer direct and concrete injuries for Article III purposes. See, e.g., Warth v. Seldin, 422 U.S. 490, 511 (1974). At least in the form seen here, the doctrine traces its origins to the Supreme Court‘s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In that case, Housing Opportunities Made Equal (“HOME“), a group dedicated to achieving equal housing opportunity, and individual plaintiffs brought a
After first holding that an individual plaintiff had 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 unsurprising because the
Havens’ recognition of HOME‘s organizational standing makes sense. Federal law vested HOME with a specific legal right to truthful, non-discriminatory housing information, and Havens Realty‘s racially disparate misinformation targeted HOME along with the individuals it was aiding. The apartment owner‘s violations unraveled again and again the work and resources that HOME had put into providing housing and equal housing opportunities for its clients. Put simply, what HOME used its own resources, information, and client base to build up, Havens Realty‘s racist lies tore down. That is the type of direct, concrete, and immediate injury that Article III recognizes. See Fair Elections Ohio v. Husted, 770 F.3d 456, 460 n.1 (6th Cir. 2014) (Havens involved a statutory entitlement to truthful information, and “[t]he misinformation provided by the Havens defendants, i.e.[,] a
The problem is not Havens or the concept of organizational standing. The problem is what our precedent has done with Havens. As this case illustrates, our organizational standing precedents now hold that the required Article III injury need not be what 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 organization‘s own activities or deprived it of a statutorily conferred right. It is instead a failure to facilitate or subsidize through governmental enforcement the organization‘s vindication of its own parallel interests. See Maj. Op. 11-13, 17; Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 937 (D.C. Cir. 1986) (senior citizens group‘s “programmatic concerns” hampered by agency regulations that (i) limited the information the agency had previously provided in other contexts, and (ii) made raising certain challenges within the agency more difficult); id. at 937-938 (by pleading denial of “access to information and avenues of redress they wish to
That takes standing principles to—and I think over—the brink. To be clear, PETA does not claim here that the Department of Agriculture directly contributes to the unlawful mistreatment of birds that PETA aims to halt, or has denied PETA information to which any law or regulation entitles it. Nor does PETA claim that the government has dismantled, affirmatively undermined, or engaged in a campaign of misinformation that has damaged PETA‘s independent efforts to protect birds. Instead, as the majority opinion explains, PETA‘s 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, PETA will not have to expend “as many resources” pursuing other types of bird protection. Maj. Op. 14-15 (quoting Kerr Decl. ¶¶ 9, 14).
PETA is not receiving inspection reports for birds that the Department has voluntarily produced after enforcement efforts involving other animals, and the absence of such reports means that PETA expends resources compiling its own information to educate the public; if successful, PETA would rely on the government‘s reporting and undertake less “extensive” efforts of its own. Maj. Op. 15-16 (quoting Kerr Decl. ¶ 20).
Neither of those should count as judicially redressable under Article III.
Inaction on PETA Complaints
The Department‘s failure to act on PETA‘s complaints should be a complete non-starter for Article III purposes. The cases are legion holding that PETA has no legally protected or judicially cognizable interest in the enforcement of the
Nor does PETA‘s 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 law‘s enforcement to bring suit.); Gettman v. 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.“).3
Since those general interests in the law and its enforcement will not suffice, PETA needed to identify a specific and concrete “legally protected interest” of its own that has been injured by the government‘s non-enforcement practices. Lujan, 504 U.S. at 560. But neither PETA nor the majority opinion has done so. Unlike HOME‘s specific informational right under the
That the Department of Agriculture accepts such private complaints without any apparent statutory requirement to do
If PETA is not injured in any legally relevant sense by the government‘s failure to act on its complaints, how can its decision to incur additional expenses in the wake of that failure be anything other than a self-chosen consequence of any governmental non-enforcement decision? I cannot imagine that Simon would have come out differently if the 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 the Internal Revenue Service‘s tax decisions allegedly tolerated. Nor, I presume, could Linda R.S. have gotten into court if she had just added to her complaint an allegation that, absent prosecution, she would have to expend her own resources hiring a private investigator or asking the employer of her child‘s father to garnish his wages. Article III‘s requirement of a concrete 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 targeted at the plaintiffs did not constitute an Article III injury, the costs voluntarily incurred in response to those concerns could not fill in the gap either. See Clapper, 133 S. Ct. at 1152. Surely that case would not have been decided
Finally, PETA‘s contention that its resources will be better allocated if its complaints are acted upon runs into a fierce separation-of-powers headwind. The claim of injury here is simply that, given the Executive Branch‘s chosen level of enforcement under the
Article III‘s standing requirement is meant to “help[] preserve the Constitution‘s separation of powers and demarcates ‘the proper—and properly limited—role of the courts in a democratic society.‘” Coalition for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1278-1279 (D.C. Cir. 2012) (quoting Warth, 422 U.S. at 498). Yet hinging judicial superintendence of Executive enforcement decisions on nothing more than a group‘s unadorned interest in the law‘s purposes, combined with just a dash of volitional counter-expenditures, would make the courts “virtually continuing monitors of the wisdom and soundness of Executive action.” Lujan, 504 U.S. at 577 (quoting Allen v. Wright, 468 U.S. 737, 760 (1984)).
PETA‘s claim of informational injury should not open the Article III door either, for one simple reason: Even as alleged by PETA, there is no suggestion that anything in the
To be sure, the majority opinion‘s contrary determination just walks the path that circuit precedent has trodden. In Action Alliance, this court held that a group promoting the interests of the elderly had organizational standing because the Secretary of Health and Human Services failed to apply to her Department the same age discrimination regulations applied to other federal agencies. This court reasoned that, if the Department had followed the same information-disclosure regulations as other agencies, then it would have produced 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.2d at 935, 937.
Action Alliance was perhaps justifiable on its facts. As in 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: Akins and Beyond, 147 U. PA. L. REV. 613, 664 (1999).
But in subsequent cases, we have relied on Action Alliance for the proposition that organizational standing may exist more broadly whenever “information is essential to the
This 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
That presses the concept of informational standing far beyond anything the Supreme Court itself has recognized. In FEC v. Akins, 524 U.S. 11 (1998), the Supreme Court recognized a claim of informational injury when: (i) on the plaintiff‘s view of the law, the government or a third party was required by statute to make public the information at issue, id. at 21, and (ii) the plaintiff‘s interest in the information was “directly related” to the exercise of the person‘s own individual right to vote, “the most basic of political rights,” id. at 24-25.
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.” Nader v. FEC, 725 F.3d 226, 229 (D.C. Cir. 2013). Absent such a statutory basis, we have held that the claim of informational standing fails.6 At least we had until today.
Furthermore, unlike Akins where the claim was premised on a desire to have information about a group‘s role in an election in which the plaintiff intended to vote, PETA has identified no concrete piece of information in the agency‘s possession that it is seeking, let alone that it has any legal right to. The agency would not even acquire the desired information unless it were first to enforce the law as PETA
To be sure, the Supreme Court‘s decision in Akins did not specifically displace our precedent finding organizational standing when the failure to provide information “impinge[d] on the plaintiff‘s daily operations or [made] normal operations infeasible.” Akins v. FEC, 101 F.3d 731, 735 (D.C. Cir. 1996), vacated by 524 U.S. 11 at 29; Competitive Enterprise Institute, 901 F.2d at 122 (similar). But as this case makes all too clear, the broad reach of our case law is getting increasingly hard to square with Supreme Court precedent handed down since Action Alliance.
First, the notion that an organization‘s “desire to supply * * * information to its members” and the “‘injury’ it suffers when the information is not forthcoming” are “without more” sufficient to establish standing runs headlong into “the obstacle of Sierra Club v. Morton.” Foundation of Economic Trends v. Lyng, 943 F.2d 79, 84-85 (D.C. Cir. 1991). Sierra Club held that a group‘s “mere ‘interest in a problem‘” could not suffice for standing purposes, 405 U.S. at 739, and “[i]t is not apparent why an organization‘s desire for information about the same * * * problem should rest on a different footing,” Foundation of Economic Trends, 943 F.2d at 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 disseminating information to which it does not have a legal entitlement, I can see no sound basis for elevating the government‘s failure to facilitate those operations to the level of an Article III injury. Doing so just
Second, PETA does not seek information that is in any way connected to the exercise of a right conferred by the
Finally, it is hard to see how the doctrine we have embraced can practically be cabined. “‘[I]nformational injury,’ in its broadest sense, exists day in and day out, whenever federal agencies are not creating information a member of the public would like to have.” Foundation of Economic Trends, 943 F.2d at 85. If PETA‘s position is correct, any organization could, as part of its mission to advance enforcement of a given law, begin disseminating information an agency chooses to publish, and thereby gain a legally protected interest in preserving that flow of information through some form of “informational adverse possession.” Could an organization disseminate reports based on a U.S. Attorney‘s Office‘s public press releases and consequently claim a justiciable interest in the enforcement of the federal criminal code because it would generate more press releases? Surely not. And why should the group status matter at all? See Common Cause, 108 F.3d at 417 (“[S]tanding requirements apply with no less force to suits
* * *
At bottom, standing in this case is grounded on a claimed (i) protection from making voluntary resource choices when responding to the government‘s failure to enforce the law against third parties, and (ii) information generated as a byproduct of the government‘s enforcement activities without any alleged statutory obligation to make it at all, let alone to make it public. I find it mighty difficult to see any real daylight between that claim of standing and the grant of a justiciable interest in the enforcement of the law that we have long said Article III does not permit.