Friends of Animals v. Sally Jewell

Filing

OPINION [1624903] filed (Pages: 11) for the Court by Judge Rogers. [15-5223]

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2016

Decided July 15, 2016
No. 15-5223

FRIENDS OF ANIMALS,
APPELLANT
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF
INTERIOR, DEPARTMENT OF THE INTERIOR,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00016)

Jennifer E. Best argued the cause for appellant. With her on
the briefs was Michael R. Harris.
Matthew Littleton, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were John
C. Cruden, Assistant Attorney General, and Andrew C. Mergen
and Thekla Hansen-Young, Attorneys.
Before: ROGERS, SRINIVASAN and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.

Page 1 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

2
Rogers, Circuit Judge: This appeal presents a single
question: Does Friends of Animals have informational standing
under Article III of the Constitution to challenge the failure of
the Secretary of Interior to act in accordance with a deadline in
section 4 of the Endangered Species Act? Because this deadline
provision does not itself mandate the disclosure of any
information, Friends of Animals has not suffered an
informational injury and therefore does not have informational
standing. Essentially, Friends of Animals has invoked
informational standing prematurely. At this stage in the
administrative process, Friends of Animals is not entitled to any
information. Accordingly, we affirm the dismissal of its
complaint.
I.
Congress enacted the Endangered Species Act (“the Act”),
Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified as amended at
16 U.S.C. § 1531 et seq.), to conserve endangered and
threatened species. See 16 U.S.C. § 1531(b). Section 4
empowers the Secretaries of the Interior and Commerce to
designate species endangered or threatened and directs the
Secretary of the Interior (“the Secretary”) to list in the Federal
Register all species covered by either designation. Id. § 1533(a),
(c)(1). Once a species is listed, it becomes subject to a variety
of statutory and regulatory protections. See, e.g., id. §§ 1533(d),
1536, 1538(a).
Any “interested person” may petition the Secretary to add
a species or remove it from the endangered or threatened species
lists. Id. § 1533(b)(3)(A); see also 5 U.S.C. § 553(e); 50 C.F.R.
§ 424.14(a). A petition to list or de-list triggers two mandatory
deadlines. First, “[t]o the maximum extent practicable, within
90 days after receiving the petition,” the Secretary “shall make

Page 2 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

3
a finding as to whether the petition presents substantial scientific
or commercial information indicating that the petitioned action
may be warranted.” 16 U.S.C. § 1533(b)(3)(A). Second, if the
Secretary makes a positive 90-day finding, then — within 12
months of having received the petition — she must make one of
three findings: that the listing action requested is (1) not
warranted, (2) warranted, or (3) warranted but temporarily
“precluded” by pending proposals to list other species.
Id. § 1533(b)(3)(B)(i)–(iii); see generally Friends of Animals v.
Ashe, 808 F.3d 900, 902–03 (D.C. Cir. 2015).
Whichever of the three 12-month findings the Secretary
makes, she must publish certain information in the Federal
Register. If she makes a “not warranted” finding, she must
publish that finding. 16 U.S.C. § 1533(b)(3)(B)(i). If she makes
a “warranted” finding, she must publish a general notice and the
text of a proposed regulation implementing the listing decision.
Id. § 1533(b)(3)(B)(ii). If she makes a “warranted” but
“precluded” finding, she must publish that finding, along with
“a description and evaluation of the reasons and data on which
the finding is based.” Id. § 1533(b)(3)(B)(iii). The Secretary
has delegated the section 4 listing responsibilities in part to the
Fish and Wildlife Service (“FWS”). See 50 C.F.R. § 402.01(b);
see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 651 (2007); Ashe, 808 F.3d at 902.
The Act’s citizen-suit provision permits “any person” to
bring suit against the Secretary in federal district court alleging
that the Secretary has failed to perform a non-discretionary act
or duty required by section 4. 16 U.S.C. § 1540(g)(1)(C). The
Secretary’s duty to comply with section 4’s 12-month finding
provision — once triggered by a positive 90-day finding — is
non-discretionary and therefore falls within the citizen-suit
provision. See Ashe, 808 F.3d at 903. Before filing suit

Page 3 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

4
pursuant to subparagraph (1)(C) of the citizen-suit provision,
however, a plaintiff generally must give the Secretary 60 days’
prior notice. 16 U.S.C. § 1540(g)(2)(C).
According to the complaint, Friends of Animals is a nonprofit organization that seeks to protect animals from cruelty and
exploitation. On September 27, 2013, it submitted two listing
petitions asking the Secretary to list the spider tortoise and the
flat-tailed tortoise as either threatened or endangered. More than
eight months later, on June 9, 2014, the FWS issued positive 90day findings in response to both listing petitions. See 90-Day
Finding on Petitions To List Two Tortoises as Endangered or
Threatened and and [sic] a Sloth as Endangered, 79 Fed. Reg.
32,900, 32,902. Twelve months after it had filed its petitions,
Friends of Animals found itself still waiting for the 12-month
findings and served the Secretary with notice of its intent to sue.
In December 2014, the FWS sent Friends of Animals a letter
stating that it planned to issue 12-month findings for both listing
petitions in fiscal year 2017 (October 1, 2016 – September 30,
2017).
Subsequently, Friends of Animals filed suit in the district
court, alleging that the Secretary had violated section 4 of the
Act by not timely issuing 12-month findings in response to its
listing petitions. It principally sought declaratory and injunctive
relief, in particular a declaratory judgment that the Secretary had
violated the Act by not issuing 12-month findings in response to
the listing petitions and not listing the two tortoise species as
endangered or threatened, and an order directing the Secretary
to issue findings and rulemakings on each species within 60
days. The district court granted the Secretary’s motion to
dismiss the complaint for lack of Article III standing, ruling that
Friends of Animals had failed to satisfy the elements of any of
the three theories of standing it advanced: informational
standing, organizational standing, and associational standing.

Page 4 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

5
Friends of Animals v. Jewell, 115 F. Supp. 3d 107, 110–19
(D.D.C. 2015); FED. R. CIV. P. 12(b)(1). Friends of Animals
appeals, challenging only the district court’s ruling on
informational standing. Our review is de novo. See Friends of
Animals v. Jewell, No. 15-5070, 2016 WL 3125204, at *5 (D.C.
Cir. June 3, 2016).
II.
Under any theory, “the irreducible constitutional minimum
of standing contains three elements”: (1) the plaintiff must have
suffered an “injury in fact” that is “concrete and particularized”
and “actual or imminent, not conjectural or hypothetical”;
(2) there must exist “a causal connection between the injury and
the conduct complained of”; and (3) it must be “likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992) (internal quotation marks omitted).
The burden of establishing these elements falls on the party
invoking federal jurisdiction, and at the pleading stage, a
plaintiff must allege facts demonstrating each element. Id. at
561. As the Supreme Court recently indicated, the existence and
scope of an injury for informational standing purposes is defined
by Congress: a plaintiff seeking to demonstrate that it has
informational standing generally “need not allege any additional
harm beyond the one Congress has identified.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1549 (2016) (emphasis in original)
(citing FEC v. Akins, 524 U.S. 11, 20–25 (1998), and Pub.
Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989)). That
type of injury is the sole basis on which Friends of Animals
contends it has standing.
A plaintiff suffers sufficiently concrete and particularized
informational injury where the plaintiff alleges that: (1) it has
been deprived of information that, on its interpretation, a statute

Page 5 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

6
requires the government or a third party to disclose to it, and
(2) it suffers, by being denied access to that information, the
type of harm Congress sought to prevent by requiring disclosure.
See Akins, 524 U.S. at 21–22. The scope of the second part of
the inquiry may depend on the nature of the statutory disclosure
provision at issue. In some instances, a plaintiff suffers the type
of harm Congress sought to remedy when it simply “s[eeks] and
[is] denied specific agency records.” Pub. Citizen, 491 U.S. at
449–50. In others, a plaintiff may need to allege that nondisclosure has caused it to suffer the kind of harm from which
Congress, in mandating disclosure, sought to protect individuals
or organizations like it. Compare Akins, 524 U.S. at 21–23, and
Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008), with Nader
v. FEC, 725 F.3d 226, 230 (D.C. Cir. 2013).
Here, Friends of Animals’s contention that it has standing
fails at the first part of the inquiry, the sine qua non of
informational injury: It is seeking to enforce a statutory
deadline provision that by its terms does not require the public
disclosure of information. The disclosure requirement Friends
of Animals points to as the source of its informational injury
does not impose any obligations on the Secretary until a later
time in the listing process. To the contrary, Friends of Animals
insists, section 4 of the Act gives it a right to two categories of
information now, and it suffers informational injury because the
Secretary’s delay in issuing a 12-month finding deprives it of
this information. The first category is the information the
Secretary must publish in the Federal Register after making a
12-month finding. See 16 U.S.C. § 1533(b)(3)(B)(i)–(iii). The
second is the information that the Secretary must publish in the
Federal Register when listing an endangered or threatened
species. See id. § 1533(c)(1). But as the prayer for relief in the
complaint demonstrates, Friends of Animals does not yet have
a right to either category of information.

Page 6 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

7
Section 4(b)(3)(B) of the Act — the provision at issue here
— contains two functional components, a deadline requirement
and a disclosure requirement. The deadline requirement
mandates that the Secretary make one of three types of findings
within 12 months of receiving a listing petition: “(i) The
petitioned action is not warranted . . .”; “(ii) The petitioned
action is warranted . . .”; or “(iii) The petitioned action is
warranted, but [precluded] . . . .” 16 U.S.C. § 1533(b)(3)(B).
The disclosure requirement sets forth what information the
Secretary must publish after making a given finding. The
structure of section 4(b)(3)(B) makes clear that these
requirements arise sequentially: “Within 12 months after
receiving a petition . . . , the Secretary shall make one of the
following findings: [type of finding], in which case the Secretary
shall promptly [publish the relevant information in the Federal
Register].” See id. By adopting this sequential procedural
structure, Congress placed the Secretary under no obligation to
publish any information in the Federal Register until after
making a 12-month finding. The same is true of the requirement
that the Secretary publish certain information in the Federal
Register when listing a species, see id. § 1533(c)(1), which
mandates that the Secretary disclose information only after she
— or the Secretary of Commerce — has made a decision that a
species warrants listing.
The structure of section 4(b)(3)(B) reflects the distinct
purposes served by the deadline requirement and the disclosure
requirement. Congress, in the Endangered Species Act
Amendments of 1982, Pub. L. No. 97-304, § 2(a)(2), 96 Stat.
1411, 1412, added the 12-month decision-making deadline to
section 4 in order to “force [agency] action on listing and delisting proposals” — action that up to that point often had
proceeded at a molasses-like pace — and to hasten “the footdragging efforts of a delinquent agency.” H.R. REP. NO. 97-835,
at 20–22 (1982) (Conf. Rep.); see also S. REP. NO. 97-418, at 4,

Page 7 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

8
10–14 (1982). The disclosure requirement, on the other hand,
functions to explain the Secretary’s finding to various audiences
and to set the stage for the next steps in the listing process. For
example, the information the Secretary must publish after
making a “not warranted” or “warranted but precluded” finding
serves — among other purposes — to facilitate judicial review
of the finding. See 16 U.S.C. § 1533(b)(3)(C)(ii); see also H.R.
REP. NO. 97-835, at 21–22; S. REP. NO. 97-418, at 13–15. The
information the Secretary must publish after making a
“warranted” finding is necessary to initiate the notice-andcomment rulemaking process that will determine whether the
species at issue is ultimately listed.
See 16 U.S.C.
§ 1533(b)(3)(B)(ii); see also id. § 1533(b)(4)–(6), (b)(8).
Friends of Animals’s complaint seeks to have the court
order compliance with section 4(b)(3)(B)’s deadline
requirement, not its disclosure requirement. This is, as the
Friends of Animals president characterizes it, a “deadline suit[].”
Decl. of Priscilla Feral ¶ 12 (Apr. 29, 2015). The complaint’s
only cause of action alleges that “[t]he Secretary failed to make
a finding indicating whether the petitioned action was warranted
within twelve months after receiving the petition[s] to list” the
spider tortoise and the flat-tailed tortoise. Compl. ¶¶ 36–38.
Friends of Animals’s complaint, in other words, demonstrates
precisely why it lacks informational injury: before the Secretary
makes a 12-month finding, section 4(b)(3)(B) does not mandate
the disclosure of any information whatsoever.
Friends of Animals attempts to overcome this hurdle by
conflating the purposes of section 4(b)(3)(B)’s deadline and
disclosure requirements. Together, in Friends of Animals’s
view, those two requirements confer on it “the right to timely
information.” Pet’r’s Reply Br. 5 n.2 (emphasis omitted). Yet
nothing in the Act or its legislative history indicates that the
deadline requirement Friends of Animals seeks to enforce

Page 8 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

9
should be read to incorporate the informational purpose of
section 4(b)(3)(B)’s disclosure requirement. The deadline
requirement was meant to spur a then-laggard agency to
accelerate the pace of the listing process, which “ha[d] come to
a virtual standstill” and was, in turn, undermining the speciesprotective purpose of the Act. S. REP. NO. 97-418, at 4. It was
not meant, as Friends of Animals urges, to speed up the pace at
which the Secretary disclosed information to the public.
Our other informational standing precedents in the
Endangered Species Act context are to the same effect. In
American Society for the Prevention of Cruelty to Animals v.
Feld Entertainment, Inc., 659 F.3d 13, 22–24 (D.C. Cir. 2011),
the court held that a violation of section 9 of the Act could not
give rise to an informational injury because the relevant
provisions of section 9 did not require the release of any
information but merely prohibited defined categories of
behavior harmful to certain species protected under the Act. Id.
at 22–24; see also 16 U.S.C. §§ 1532(19), 1538. The plaintiff’s
theory of informational standing was that if the defendant’s
conduct were found to violate section 9, the defendant might
seek a permit, under section 10 of the Act, that would allow it to
persist in its conduct, and section 10(c) would then require the
Secretary to make public certain information as part of the
permitting process. Feld Entm’t, 659 F.3d at 22; see also 16
U.S.C. § 1539(a), (c). The court held that, whatever
informational rights might exist under section 10, the plaintiff
sought to enforce the prohibitions in section 9, which did not
mandate the disclosure of any information. Feld Entm’t, 659
F.3d at 23–24. A plaintiff can demonstrate informational injury,
on the other hand, where it seeks to enforce section 10(c)’s
disclosure requirements. See Jewell, 2016 WL 3125204, at
*5–7. Here, Friends of Animals seeks to enforce section
4(b)(3)(B)’s deadline requirement, not its disclosure
requirements. But section 4(b)(3)(B)’s deadline requirement,

Page 9 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

10
like the prohibitions in section 9 of the Act and unlike the
disclosure requirements in section 10(c), does not mandate the
release of information.
The same distinction undercuts Friends of Animals’s
reliance on other informational standing cases. In those cases,
the plaintiffs or petitioners had informational standing because
they sought to enforce a statutory disclosure requirement. The
plaintiffs in Akins, 524 U.S. at 21–22, 26, and Public Citizen,
491 U.S. at 445–47, 449–50, sued over whether certain
organizations were subject to disclosure requirements in the
Federal Election Campaign Act and the Federal Advisory
Committee Act, respectively. In Ethyl Corp. v. EPA, 306 F.3d
1144 (D.C. Cir. 2002), the petitioner sought to enforce a
provision of the Clean Air Act that, it maintained, required the
EPA to take actions that it had been handling behind closed
doors through public notice-and-comment rulemaking. Id. at
1146–48. Likewise unavailing is Friends of Animals’s reliance
on American Canoe Association, Inc. v. City of Louisa Water
and Sewer Commission, 389 F.3d 536, 544–47 (6th Cir. 2004).
Setting aside the Sixth Circuit’s apparent conflation of
informational and organizational standing, compare id. at
544–46, with id. at 546–47, the plaintiffs there sued to force a
municipal utility to abide by a provision of the Clean Water Act
that they contended imposed certain disclosure obligations. Id.
at 539–40. Finally, in Havens Realty Corp. v. Coleman, 455
U.S. 363, 373–75 (1982), and Zivotofsky ex. rel. Ari Z. v.
Secretary of State, 444 F.3d 614, 615–19 (D.C. Cir. 2006), the
plaintiffs sought to compel compliance with statutory provisions
that guaranteed a right to receive information in a particular
form. By contrast, Friends of Animals seeks to enforce a
deadline requirement that does not obligate the Secretary to
disclose information.

Page 10 of 11

USCA Case #15-5223

Document #1624903

Filed: 07/15/2016

11
Obviously our holding is narrow. It cannot be read broadly
to mean that a plaintiff suing to enforce the requirements of
section 4 never has informational standing. For example,
suppose the FWS were to determine that the listing petitions at
issue are warranted but precluded and yet declined to publish in
the Federal Register “a description and evaluation of the . . . data
on which the finding is based,” as required by statute. 16 U.S.C.
§ 1533(b)(3)(B)(iii). At that point, Friends of Animals may well
have informational standing to sue to compel the publication of
the relevant data — that is, to compel compliance with section
4(b)(3)(B)’s disclosure requirement. See Jewell, 2016 WL
3125204, at *5–7; cf. Feld Entm’t, 659 F.3d at 23–24.
Furthermore, none of the foregoing means that Article III leaves
a plaintiff in Friends of Animals’s position without judicial
recourse. The Secretary’s alleged failure to make a 12-month
finding within the statutorily mandated timeframe may have
caused Friends of Animals some other cognizable injury in fact.
This case, however, does not present, nor do we decide, whether
a claim of associational or organizational standing might support
a challenge to the Secretary’s failure to make the required 12month finding. We hold only that as to its “deadline suit”
Friends of Animals has failed to establish that it has
informational standing, the sole theory advanced before this
court.
Accordingly, we affirm the dismissal of the complaint.
.

Page 11 of 11