PETA v. AGRI

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2015 Decided August 11, 2015

No. 14-5157

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

Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00976)

Matthew D. Strugar argued the cause for the appellant.
Jeffrey S. Kerr and Delcianna Winders were with him on
brief.

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.
 2
Before: GARLAND, Chief Judge, and HENDERSON and
MILLETT, Circuit Judges.

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), 7 U.S.C. §§ 2131 et seq., to birds. Although the Agency
has taken steps to craft avian-specific animal welfare
regulations, it has yet to complete its task after more than ten
years and, during the intervening time, it has allegedly not
applied the Act’s general animal welfare regulations to birds.
Frustrated with the delay, People for the Ethical Treatment of
Animals (PETA) sued the USDA, arguing that its inaction
amounted to agency action “unlawfully withheld,” in
violation of section 706(1) of the Administrative Procedure
Act (APA), 5 U.S.C. § 706(1). The district court granted the
USDA’s motion to dismiss, concluding that the USDA’s
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

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.” 7 U.S.C.
§ 2131(1)–(2). To effect these goals, the Congress instructed
the USDA to “promulgate standards to govern the humane
handling, care, treatment, and transportation of animals by
 3
dealers, research facilities, and exhibitors.” Id. § 2143(a)(1).
For some animals, the USDA is required by statute to
promulgate species-specific regulations, see id.
§ 2143(a)(2)(B) (dogs and primates), and it retains the
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. See 9
C.F.R. §§ 3.25–3.28; 3.50–3.53; 3.100–3.104. All other
animals benefit from the protection of the AWA’s general
animal welfare regulations, which establish “minimum
requirements” for “handling, housing, feeding, watering,
sanitation, ventilation, shelter from extremes of weather and
temperatures, adequate veterinary care, and separation by
species.” 7 U.S.C. § 2143(a)(2)(A); see 9 C.F.R. §§ 3.125–
3.128.

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.” 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
allows the USDA to unearth violations of the Act by
“mak[ing] such investigations or inspections as [it] deems
necessary.” Id. § 2146(a) (emphasis added). It has
promulgated regulations providing that, before obtaining a
license, “[e]ach applicant must demonstrate that his or her
premises and any animals, facilities, vehicles, equipment, or
other premises used or intended for use in the business
comply with the regulations and standards” set by the USDA
and “must make his or her animals, premises, facilities,
 4
vehicles, equipment, other premises, and records available for
inspection . . . to ascertain the applicant’s compliance with the
standards and regulations.” 9 C.F.R. § 2.3(a).

Although seemingly broad, the Act’s scope turns on the
USDA’s definition of “animal.” 7 U.S.C. § 2132(g). When
first enacted, the AWA protected only “dogs, cats, monkeys
(nonhuman primate mammals), guinea pigs, hamsters, and
rabbits.” See Pub. L. No. 89-544, § 2(h), 80 Stat. 350, 351
(1966). For years, the USDA excluded birds from the Act’s
protection. See USDA, Miscellaneous Amendments to
Chapter, 36 Fed. Reg. 24,917, 24,919 (Dec. 24, 1971).

Their status changed in 2002, when the Congress
amended the AWA’s definition of “animal” to exclude “birds
. . . bred for use in research.” 7 U.S.C. § 2132(g).
Interpreting the Congress’s exclusion of research avians to
mean the inclusion of all other birds, the USDA updated its
regulations on June 4, 2004, to make explicit that birds would
thenceforth benefit from the Act’s protections. Animal
Welfare; Definition of Animal, 69 Fed. Reg. 31,513, 31,513
(June 4, 2004); see also 9 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. See Animal Welfare; Regulations and
Standards for Birds, Rats, and Mice, 69 Fed. Reg. 31,537,
31,539 (June 4, 2004). The USDA issued an Advance Notice
of Proposed Rulemaking (ANPR) for avian-specific animal
welfare regulations. Id.

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
 5
veterinarians, economists, industry members, related
government agencies and others to develop a set of avian-
specific regulations. It also assigned the Animal and Plant
Health Inspection Service (APHIS)—the USDA sub-agency
that administers the AWA—to assist with the process. The
APHIS then hired an avian health-and-welfare expert to help
it accomplish its task.

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,” 5 U.S.C. § 706(1). PETA
asked the court to “compel[] the USDA to . . . publish for
public comment in the Federal Register, by a Court-ordered
 6
deadline, proposed rule(s) specific to birds” and then
“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.” 1 The USDA responded
with a motion to dismiss (or in the alternative, for summary
judgment), arguing, first, that PETA lacked standing and,
second, that PETA failed to state a claim because the AWA
leaves enforcement decisions to the USDA’s non-justiciable
discretion.

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.

1
The district court denied PETA’s requested mandatory
injunctive relief requiring the USDA to promulgate bird-specific
AWA regulations. See PETA I, 7 F. Supp. 3d at 13–15. PETA has
abandoned that argument on appeal.
 7
The district court nonetheless dismissed PETA’s suit,
concluding that PETA failed to state a claim because
“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 PETA’s arguments that the
AWA sufficiently constrained the USDA’s discretion to make
its enforcement decisions justiciable and that the USDA’s
alleged policy of non-enforcement, under D.C. Circuit law,
could be challenged in court. Regarding the former, the court
reasoned that the AWA gave the USDA broad discretion to
conduct “investigations or inspections as [it] deems
necessary.” Id. at 11 (emphasis in original). On the latter, the
court faulted PETA’s failure to “identify any concrete
statement from USDA announcing a general policy not to
regulate birds under the AWA” and credited the USDA’s
“expressed . . . official position on the matter” in its
“regulations bringing birds under the scope of the AWA.” Id.
at 12 (quotation marks omitted). 2 PETA moved for
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

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

2
The district court did, however, comment that the “USDA
would . . . be well advised to educate its officials on the agency’s
policy regarding birds—namely, that birds are regulated by the
AWA and do fall under the agency’s enforcement jurisdiction—and
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
derived from the facts alleged.” Ralls Corp. v. Comm. on
Foreign Inv. in U.S., 758 F.3d 296, 314–15 (D.C. Cir. 2014)
(some alteration in original). We need not, however, accept
the truth of “a legal conclusion couched as a factual
allegation.” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir.
2006). To avoid dismissal, PETA must plead “sufficient
factual matter . . . to ‘state a claim to relief that is plausible on
its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

PETA has not alleged that the USDA’s 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. 6–7. And on
appeal, PETA has abandoned its effort to require the USDA
to promulgate bird-specific regulations, see Appellant’s
Br. 25; Oral Arg. Recording 14:22–15:50, and does not
pursue the allegation made in its complaint that the USDA
“unreasonably delayed” enforcement of its general animal
welfare regulations with regard to birds, in violation of
section 706(1) of the APA, see Reply Br. 32–33. The only
question before us, then, is whether PETA’s complaint states
a claim that the USDA’s alleged policy of not enforcing the
general regulations with respect to birds—without regard to
the reasonableness vel non of the delay in enforcement—
constitutes agency action “unlawfully withheld,” in violation
of section 706(1) of the APA. Before reaching that question,
however, we must first address PETA’s standing to press its
claim. See CTS Corp. v. EPA, 759 F.3d 52, 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

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

3
On appeal, the USDA does not argue that PETA failed to
demonstrate the causation and redressability prongs of standing.
Because we have an independent obligation to satisfy ourselves that
PETA has Article III standing, we must consider causation and
redressability sua sponte and, having done so, agree with the
district court that “the injuries complained of—USDA’s refusal to
take enforcement action in response to PETA’s complaints and
USDA’s failure to compile the information PETA wants to use in
its educational materials—are caused by the agency” and “the
 10
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

remedies sought—an order compelling USDA to enforce the AWA
with respect to birds . . .—would redress those injuries.” PETA I, 7
F. Supp. 3d at 9.
4
But see Am. Soc. for Prevention of Cruelty to Animals, 659
F.3d at 27 (“[M]any of our cases finding Havens standing involved
activities that could just as easily be characterized as advocacy—
and, indeed, sometimes are.”).
 11
determine whether an organization’s injury is “concrete and
demonstrable” or merely a “setback” to its “abstract social
interests,” Havens Realty Corp., 455 U.S. at 379, we ask, first,
whether the agency’s action or omission to act “injured the
[organization’s] interest” and, second, whether the
organization “used its resources to counteract that harm.”
Equal Rights Ctr., 633 F.3d at 1140.

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

5
See Abigail Alliance for Better Access to Developmental
Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006) (“At
each stage of trial, the party invoking the court’s jurisdiction must
establish the predicates for standing with the manner and degree of
evidence required at that stage of trial.” (quotation marks omitted)).
 12
materially indistinguishable from those alleged by the
organizations in Action Alliance of Senior Citizens of Greater
Philadelphia v. Heckler, 789 F.2d 931 (D.C. Cir. 1986). In
that case, “four organizations that endeavor[ed], through
informational, counseling, referral, and other services, to
improve the lives of elderly citizens” sued the Secretary of the
United States Department of Health and Human Services
(HHS) because it had, inter alia, promulgated HHS-specific
regulations that were allegedly inconsistent with
“government-wide regulations” that “afford[ed] interested
individuals and organizations a generous flow of information
regarding services available to the elderly.” Id. at 935–37.
According to the organizations, “the HHS-specific regulations
. . . significantly restrict[ed] that flow.” Id. at 937. We
reversed the district court’s dismissal for lack of standing,
concluding that the plaintiffs had pleaded “the same type of
injury as the plaintiffs in Havens Realty: the challenged
regulations den[ied] the [plaintiffs] access to information and
avenues of redress they wish to use in their routine
information-dispensing, counseling, and referral activities.”
Id. at 937–38. We held that, “[u]nlike the mere interest in a
problem or [an] ideological injury,” the plaintiffs had “alleged
inhibition of their daily operations, an injury both concrete
and specific to the work in which they are engaged.” Id. at
938 (quotation marks and citations omitted).

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
 13
violations to the attention of the agency charged with
preventing avian cruelty and continue to educate the public.
See Am. Soc. for Prevention of Cruelty to Animals, 659 F.3d
at 25. Because PETA has expended resources to counter
these injuries, it has established Article III organizational
standing.

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
 14
birds, it will employ the same inspection reports and redress
mechanisms for birds that it currently uses for other species.
Accordingly, the USDA’s challenged non-action plainly
impairs PETA’s activities in a non-speculative manner by
“requir[ing]” PETA “to divert and redirect its limited
resources to counteract and offset Defendant’s unlawful
conduct and omissions.” Compl. ¶ 6. For example, PETA
has alleged that:

• “[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.
 15
• “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.
 16
• “[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
 17
choices.” Fair Emp’t Council of Greater Wash., Inc. v. BMC
Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994). That an
organization “voluntarily, or willfully . . . diverts its
resources, however, does not automatically mean that it
cannot suffer an injury sufficient to confer standing.” Equal
Rights Ctr., 633 F.3d at 1140 (alteration and citation omitted).
We then ask whether the organization “undertook the
expenditures in response to, and to counteract, the effects of
the defendants’ alleged” unlawful acts “rather than in
anticipation of litigation.” Id. As already noted, PETA
redirected its resources in response to USDA’s allegedly
unlawful failure to provide the means by which PETA would
otherwise advance its mission—filing complaints with the
USDA and using the USDA’s information for its advocacy
purposes. Contrary to the USDA’s assertion, PETA did not
“bootstrap its way into court by alleging that agency inaction
renders its advocacy efforts more expensive.” Appellee’s Br.
21.

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
 18
whether the USDA has a policy of non-enforcement that
constitutes agency action unlawfully withheld, in violation of
section 706(1) of the APA—regardless whether the non-
enforcement has gone on for a reasonable or unreasonable
length of time. The district court found, see PETA I, 7 F.
Supp. 3d at 13, and, on PETA’s motion for reconsideration,
iterated, see PETA v. USDA (PETA II), 60 F. Supp. 3d 14, 18
(D.D.C. 2014), that the USDA’s enforcement decisions are
“unreviewable because they are ‘committed to agency
discretion by law.’ ” PETA I, 7 F.Supp. 3d at 13 (quoting 5
U.S.C. § 701(a)(2)); see also PETA II, 60 F. Supp. 3d at 16–
19 (same). PETA maintains that the district court erred in two
ways. PETA first argues that the Congress took away the
USDA’s enforcement discretion because “[t]he clear
implication of the AWA is that all entities wishing to sell or
exhibit animals must first obtain a license from the USDA—
and the agency may not, consistent with the regime, announce
to the world that no such license will be required to any
facility that sells or exhibits an entire class of animals.”
Appellant’s Br. 31 (quotation marks and emphasis omitted).
PETA further contends that the USDA’s 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.” 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
 19
subject to review under the APA. 6 Instead, we affirm the
district court on the alternative ground that PETA failed to
plausibly allege that the USDA’s decade-long inaction
constitutes agency action unlawfully withheld. See Munsell v.
USDA, 509 F.3d 572, 592–93 (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).
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, 7 U.S.C. § 2143(a)(1), and apply those standards

6
Similarly, we need not decide whether the district court
imposed a “heightened pleading standard” on PETA’s allegation of
agency policy. Appellant’s Br. 45.
 20
through the licensure system, id. § 2133.” Reply Br. 33
(emphasis in original). But even if the USDA has adopted an
interim policy of non-enforcement pending the adoption of
bird-specific regulations, as PETA alleges, nothing in the
AWA requires the USDA to apply the general animal welfare
standards to birds (which standards it views, at best, as
ineffective and, at worst, as hazardous to avians, see Animal
Welfare; Regulations and Standards for Birds, Rats, and
Mice, 69 Fed. Reg. at 31,538–39 7) before it has promulgated
more appropriate bird-specific regulations. Cf. Cutler v.
Hayes, 818 F.2d 879, 892–93 (D.C. Cir. 1987) (upholding
FDA policy of “postponing enforcement of the [Food, Drug,
and Cosmetic] Act’s efficacy requirement . . . until the
completion of [the agency’s] OTC drug review program”
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 PETA’s abandonment
of its argument that the USDA “unreasonably delayed”
enforcement, see Reply Br. 32–33. Moreover, the AWA’s
mandatory licensure requirement is directed to “dealer[s]” and
“exhibitor[s]” of animals, not to the USDA. See 7 U.S.C.
§ 2134. While section 2133 of the AWA provides that the
USDA “shall issue licenses to dealer[s] and exhibitor[s] upon
application therefor in such form and manner as [it] may
prescribe,” id. § 2133, this congressional directive does not
mean that the USDA must demand licensure in all instances.
Thus, we cannot say that the USDA has failed to take action it

7
See also, e.g., Johanna Briscoe Decl. ¶ 17 (“APHIS also
recognizes that breeding requirements for certain species preclude
daily cleaning and human interference (i.e. nesting birds may
purposely crush their eggs if a stranger enters the vicinity.”)).
 21
was “required to take.” SUWA, 542 U.S. at 64 (emphasis in
original).

For the foregoing reasons, we affirm the district court’s
judgment of dismissal.

So ordered.
 MILLETT, Circuit Judge, dubitante: If the slate were
clean, I would feel obligated to dissent from the majority’s
standing decision. But I am afraid that the slate has been
written upon, and this court’s “organizational standing”
precedent will not let me extricate this case from its grasp. Or
at least not without making fine distinctions that would just
skate around the heart of the problem. The majority opinion
holds that standing exists because the government’s inaction
injured PETA’s “interest” in having the Animal Welfare Act
enforced against certain third parties, and because PETA
chose to devote its own resources to make up for the
government’s enforcement “omission.” Maj. Op. 11
(emphases added).

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.”
 2
I should note, at the outset, that my views do not in any
way question the sincerity of PETA’s concern for neglected
and abused birds or its desire to better their conditions. Nor
can I criticize the majority for its decision. The majority
opinion hews faithfully to precedential lines, as we must at
this procedural juncture. See General Comm. of Adjustment,
GO-386 v. Burlington Northern & Santa Fe Ry. Co., 295 F.3d
1337, 1340 (D.C. Cir. 2002) (circuit precedent “binds us,
unless and until overturned by the court en banc or by
[h]igher [a]uthority”) (internal quotation marks omitted).

“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 Fair Housing Act challenge to the racially
discriminatory housing practices of an apartment complex
owner. See id. at 367–369. The Fair Housing Act “conferred
on all ‘persons’ a legal right to truthful information about
housing,” id. at 373, by making it unlawful to “represent to
any person because of race, color, religion, sex, handicap,
familial status, or national origin that any dwelling is not
available for inspection, sale, or rental when such dwelling is
in fact so available,” 42 U.S.C. § 3604(d).

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 Fair Housing Act specifically
defines the “persons” entitled to truthful housing information
 3
to include “associations” as well as “one or more individuals.”
42 U.S.C. § 3602(d). HOME had also identified how the
discriminatory misinformation it was given about housing
opportunities directly frustrated and unraveled its efforts to
match individuals with available housing. In particular,
HOME alleged that the challenged racial steering practices
“frustrated * * * its efforts to assist equal access to housing
through counseling and other referral services,” and forced it
“to devote significant resources to identify and counteract”
the unlawful conduct targeted at it. Havens, 455 U.S. at 379.
The Supreme Court concluded that, because the alleged
practices had “perceptibly impaired [the group’s] ability to
provide counseling and referral services,” the organization
had plainly suffered an injury in fact. Id. That “concrete and
demonstrable injury to the organization’s activities” and
“consequent drain on the organization’s resources,” the Court
stressed, represented “far more than simply a setback to the
organization’s abstract social interests,” which could not have
conferred standing. Id.

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
 4
lie told to black renters, including a member of the
organization, that no rental units were available, directly
interfered with the organization’s ability to provide truthful
counseling and referral services.”); see also American Canoe
Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389
F.3d 536, 550 (6th Cir. 2003) (Kennedy, J., concurring in part
and dissenting in part) (HOME’s injury was “specific,
cognizable, and particular” because the group “encountered
significant difficulty helping individual plaintiffs counteract
discrimination directed at them in a localized area”); 13A C.
Wright, A. Miller, & E. Cooper, Federal Practice & Procedure
§ 3531.2, at 100 (3d ed. 2008) (HOME “was engaged in
specific efforts to aid particular people who in fact had been
injured by housing discrimination”).

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
 5
use in their routine information-dispensing, counseling and
referral activities,” organizations “have alleged inhibition of
their daily operations” sufficient for standing purposes). 1

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:

x 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).

1
See also ASPCA v. Feld Entertainment, Inc., 659 F.3d 13, 27
(D.C. Cir. 2011) (reserving the question whether an organization
has standing based on “expend[ing] additional resources on public
education to rebut the misimpression, allegedly caused by [the
defendant’s] practices”); compare also Center for Law & Educ. v.
Department of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005)
(rejecting organizational standing where “the only ‘service’
impaired is pure issue-advocacy”), with Feld Entertainment, 659
F.3d at 26–28 (impairment of a group’s ability to provide advocacy
services may qualify as injury where a defendant’s conduct is “at
loggerheads” with the group’s mission) (quoting National Treasury
Employees Union v. United States, 101 F.3d 1423, 1429 (D.C. Cir.
1996)).
 6
x 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
Animal Welfare Act against third parties for its own sake.
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 threatened with 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.”). 2

2
See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 574–578
(1992) (no standing based on generalized objection to insufficient
enforcement of the law); High Plains Wireless, L.P. v. FCC, 276
F.3d 599, 606 (D.C. Cir. 2002) (no “standing to object to the
agency’s refusal to sanction” a third party); Sargeant, 130 F.3d at
1069 (“[T]he interests Mohwish proffers—in the prosecution of
 7
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 Fair Housing Act, absolutely
nothing in the Animal Welfare Act invests PETA with any
right to have its complaints acted upon or its resource-
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 enforced—are
not legally cognizable within the framework of Article III.”).
3
See also Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 486 (1982)
(“[S]tanding is not measured by the intensity of the litigant’s
interest or the fervor of his advocacy.”); Feld Entertainment, 659
F.3d at 24 (“[A]n organization’s abstract interest in a problem is
insufficient to establish standing, ‘no matter how longstanding the
interest and no matter how qualified the organization is in
evaluating the problem.’”) (quoting Sierra Club, 405 U.S. at 739).
 8
so is not enough. The “deprivation of a procedural right
without some concrete interest that is affected by the
deprivation—a procedural right in vacuo—is insufficient to
create Article III standing.” Summers v. Earth Island
Institute, 555 U.S. 488, 496 (2009). Thus, “absent the ability
to demonstrate a ‘discrete injury’ flowing from the alleged
violation,” PETA “cannot establish standing merely by
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 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
 9
differently if Amnesty International had simply alleged that it
had to divert its resources to educate the public about how to
protect themselves against government surveillance.

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 Animal Welfare Act, PETA must
expend more resources than it would otherwise have to in
pursuit of its parallel goals. See Maj. Op. 15 (if the suit is
successful, PETA “will no longer have to expend as many
resources 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
that the government is not enforcing the law as much, as
often, or as vigorously as it would like. And maybe a
different group could sue if it believes the law is being
enforced too much and so chooses to use its resources to
advise the public about the harms of over-enforcement.

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)).
 10
Failure to Produce Enforcement Reports

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
Animal Welfare Act or any regulation gives PETA any legal
right to such information or reports. PETA thus may claim
that its resource-allocation decisions are injured by the
absence of such reports from the agency; but that injury is not
even colorably tied to a “legally protected interest” in
obtaining that information, as Lujan requires, 504 U.S. at 560.

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
 11
injured organization’s activities, and where the lack of the
information will render those activities infeasible.”
Competitive Enterprise Institute v. NHTSA, 901 F.2d 107, 122
(D.C. Cir. 1990); see also Animal Legal Defense Fund, Inc. v.
Espy (“Espy II”), 29 F.3d 720, 724 (D.C. Cir. 1994)
(extending a similar rule to the Animal Welfare Act); Animal
Legal Defense Fund, Inc. v. Espy (“Espy I”), 23 F.3d 496,
501–502 (D.C. Cir. 1994) (same). 4

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 Animal Welfare Act cases, for
example, the Secretary was required to include the
information at issue in an annual report submitted to
Congress. See Espy I, 23 F.3d at 501. 5 In this case, PETA
points to nothing that requires the Department to generate the
enforcement reports that it finds so helpful, let alone a legal

4
We have also concluded, in the cases brought under the Animal
Welfare Act, that the organization alleging informational injury
failed to establish that the zone-of-interests test had been met. See
Espy II, 29 F.3d at 724; Espy I, 23 F.3d at 502–504. But the
government has not raised that challenge to PETA’s 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
analysis is not a standing inquiry required by Article III. See
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1388 & n.4 (2014).
5
That 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.
 12
basis for asserting an enforceable private right to such
information. Nor does PETA claim to be using the
information to educate other individuals who are protected by
the statute about their legal rights.

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

6
See Feld Entertainment, 659 F.3d at 23–24; 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).
 13
desires. But if PETA lacks Article III standing to require the
agency to enforce the law against third parties, it surely
cannot get standing through the back-door route of claiming
injury by the absence of post-enforcement reports.

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. 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
 14
confuses an inconvenience with an “injury in fact” to a
“legally protected interest,” Lujan, 504 U.S. at 560.

Second, PETA does not seek information that is in any
way connected to the exercise of a right conferred by the
Animal Welfare Act, akin to the linkage between information
and voting in Akin. PETA’s purpose in seeking this
information appears to be simply to have the information for
its own educational and promotional materials, so that it can
conserve or 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
of the law has occurred”—whatever the personal use it
intends to make of that knowledge—“would be tantamount to
recognizing a justiciable interest in the enforcement of the
law.” Common Cause, 108 F.3d at 418.

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
 15
brought by organizational plaintiffs.”). The same principles
that prevent any individual caped crusader from using the
courts to vindicate his or her views as to the proper
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 Justice League.

***

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.