American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2011 Decided October 28, 2011

No. 10-7007

AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS, ET AL.,
APPELLANTS

v.

FELD ENTERTAINMENT, INC.,
APPELLEE

Consolidated with 10-7021

Appeals from the United States District Court
for the District of Columbia
(No. 1:03-CV-02006)

Carter G. Phillips argued the cause for appellants/cross-
appellees. With him on the briefs were Paul J. Zidlicky, Eric
D. McArthur, and Bryson L. Bachman. Katherine A. Meyer,
Howard M. Crystal, and Eric R. Glitzenstein entered
appearances.

John M. Simpson argued the cause for appellee/cross-
appellant. With him on the briefs were Jonathan S. Franklin,
 2
Michelle C. Pardo, and Mark Emery. Joseph T. Small Jr.
entered an appearance.

Before: TATEL, GARLAND, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Feld Entertainment, Inc., owns the
country’s largest collection of endangered Asian elephants,
some of whom travel and perform with its famed Ringling
Brothers and Barnum & Bailey Circus. In this case, a former
barn helper with Ringling Brothers and an organization
dedicated to fighting exploitation of animals allege that not all
is well under the big top. Specifically, they claim that Feld’s
use of two techniques for controlling the elephants—
bullhooks and chains—harms the animals in violation of the
Endangered Species Act. But the district court never reached
the merits of this claim because, following a lengthy bench
trial, it found that plaintiffs had failed to establish Article III
standing. For the reasons set forth in this opinion, we agree.

I.
The Endangered Species Act of 1973 (ESA) requires the
Secretary of the Interior to identify species that are
“endangered” or “threatened.” 16 U.S.C. § 1533(a)(1).
Section 9 makes it unlawful to “take” any endangered species
within the United States, or to “possess, sell, deliver, carry,
transport, or ship, by any means whatsoever” any endangered
species “taken” in violation of the Act. 16 U.S.C.
§ 1538(a)(1)(B), (D). The Act defines “take” to mean “to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” 16
U.S.C. § 1532(19). Pursuant to ESA section 10, the Secretary
may issue a permit for a take otherwise prohibited by section
9, provided that he first gives public notice and an opportunity
 3
to comment on the permit application, as well as makes
certain findings regarding the impact of the permitted
activities. 16 U.S.C. § 1539.

This case involves two techniques Feld uses to handle its
Asian elephants. First, its handlers guide and control the
elephants with an instrument known as a bullhook, a two- to
three-foot rod with a metal point and hook mounted on one
end. Second, Feld tethers its Asian elephants with chains
when the animals are not performing and when they are
traveling by train. Plaintiffs maintain that these two practices
“harm,” “wound,” and “harass” the elephants within the
meaning of ESA section 9, and therefore qualify as a “take”
which Feld cannot continue without obtaining a section 10
permit.

One of the plaintiffs, Tom Rider, witnessed Feld’s use of
the challenged practices over two years, from June 1997 to
November 1999, when working as a “barn helper” and “barn
man” on one of Feld’s traveling circus units. His
responsibilities included cleaning up after the elephants,
giving them food and water, and generally watching over
them. Rider claims that during his employment with Feld, he
developed a “strong, personal attachment” to the elephants
with whom he worked, and that he left his employment with
Feld because he could no longer stand to see the elephants
mistreated. Compl. ¶¶ 18, 21.

In 2000, Rider and several other individuals and
organizations filed suit against Feld, alleging that its use of
bullhooks and tethering violated ESA’s “take” provision.
Concluding that neither Rider nor any other plaintiff had
standing to bring suit under ESA’s citizen-suit provision, 16
U.S.C. § 1540(g), the district court dismissed the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1).
 4
Performing Animal Welfare Soc’y v. Ringling Bros. &
Barnum & Bailey Circus, No. 00-cv-01641 (D.D.C. June 29,
2001).

We reversed. Am. Soc’y for Prevention of Cruelty to
Animals v. Ringling Bros. & Barnum & Bailey Circus, 317
F.3d 334 (D.C. Cir. 2003) (“ASPCA”). Noting that Rider
presented the “strongest case for standing,” we began with his
allegations. Id. at 335. In the complaint, we observed, Rider
alleged that during his employment at Feld, he formed a
“strong, personal attachment” to the elephants; that he
witnessed the elephants exhibiting stress-related,
“stereotypic” behavior in response to the use of bullhooks and
chains by Feld handlers; and that he ultimately left his job
because of this mistreatment. Id. (internal quotation marks
omitted). Although claiming that he would like to visit the
elephants again, Rider alleged that he was unwilling to do so
“because he would suffer ‘aesthetic and emotional injury’
from seeing the animals unless they are placed in a different
setting or are no longer mistreated.” Id.

We found these allegations sufficient to survive Feld’s
Rule 12(b)(1) motion to dismiss. Relying on our decision in
Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426
(D.C. Cir. 1998) (en banc), we explained that “an injury in
fact can be found when a defendant adversely affects a
plaintiff’s enjoyment of flora or fauna, which the plaintiff
wishes to enjoy again upon the cessation of the defendant’s
actions,” and concluded that “the injury Rider allegedly
suffers from the mistreatment of the elephants to which he
became emotionally attached” could constitute such an injury
to his “aesthetic” sense. ASPCA, 317 F.3d at 336.
Emphasizing the lesser showing required at the pleading
stage, we found that Rider’s allegations of emotional
attachment, coupled with his desire to visit the elephants and
 5
his ability to recognize the effects of mistreatment, were
sufficient to establish injury in fact. Causation was never in
question—Feld clearly caused the alleged mistreatment—and
we reasoned that Rider’s injury could be adequately redressed
through the lawsuit, assuming the elephants were likely to
cease exhibiting signs of stress once the alleged mistreatment
ended.

After our decision, Rider and the other plaintiffs
dismissed the original action without prejudice and filed a
new complaint against Feld. They subsequently filed a
supplemental complaint adding another plaintiff, Animal
Protection Institute (API), appellant herein, which has
advocated against Feld’s allegedly abusive treatment of
animals since at least 1998. Following rulings on a number of
motions not relevant here, the district court held a six-week
bench trial, heard testimony from approximately thirty
witnesses, reviewed hundreds of documents entered into the
evidentiary record, and concluded that both Rider and API
had failed to establish standing. Although acknowledging
that, pursuant to our ASPCA decision, Rider’s allegations, if
proven, would be sufficient to establish Article III standing,
the district court found that Rider was “essentially a paid
plaintiff and fact witness” whose trial testimony, and
particularly his claim that he had developed an attachment to
the elephants, lacked credibility. Am. Soc’y for the Prevention
of Cruelty to Animals v. Feld, 677 F. Supp. 2d 55, 67 (D.D.C.
2009) (“ASPCA”). Based on Rider’s lack of credibility and
the totality of the evidence presented, the district court
concluded that Rider failed to prove the allegations that we
had relied upon in finding standing at the pleading stage. Id.
at 93–94.

The district court also rejected API’s two theories of
standing. First, API alleged “informational” standing, arguing
 6
that Feld’s refusal to seek a permit for activities prohibited by
ESA deprived API of information to which it would be
entitled in the course of a permit proceeding. The district
court rejected this theory on a number of grounds, including
that: (1) the statutory basis for API’s suit, ESA section 9,
imposes no duty on Feld to provide information; (2) even if
Feld’s practices were deemed a “taking,” Feld might decide
not to seek a permit, and if it did, the flow of information to
API would be controlled by the agency, not Feld; and (3) API
already had all of the information it would obtain through the
permit process. Id. at 97–101.

Second, API argued that it suffered an injury in fact
because it had to expend resources to combat Feld’s treatment
of elephants. The district court rejected this alternative theory
of injury because API had failed to present any evidence that
it would spend fewer resources on captive animal issues if the
use of bullhooks and tethering were declared to be a taking.
Id. at 101. Because the remaining plaintiffs had abandoned
any claim to independent standing, id. at 96, the district court
entered judgment in favor of Feld, id. at 101.

Rider and API appeal. We review the district court’s
standing determination de novo, Nat’l Wrestling Coaches
Ass’n v. Dep’t of Educ., 366 F.3d 930, 937 (D.C. Cir. 2004),
and its underlying factual findings for clear error, Armstrong
v. Geithner, 608 F.3d 854, 857 (D.C. Cir. 2010); Fed. R. Civ.
P. 52(a)(6).

II.
ESA’s citizen-suit provision permits “any person” to
commence a civil suit to enjoin alleged violations of the Act
or regulations issued under its authority. 16 U.S.C.
§ 1540(g)(1). Described as “an authorization of remarkable
breadth,” the citizen-suit provision expands standing to the
 7
full extent permitted under Article III of the Constitution and
eliminates any prudential standing requirements. Bennett v.
Spear, 520 U.S. 154, 164–66 (1997); ASPCA, 317 F.3d at
336. To establish standing, then, Rider and API need only
satisfy the “irreducible constitutional minimum of standing.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
That is, they must show (1) an injury in fact that is “concrete
and particularized” and “actual or imminent”; (2) that the
injury is fairly traceable to the defendant’s challenged
conduct; and (3) that the injury is likely to be redressed by a
favorable decision. Id. at 560–61 (internal quotation marks
omitted).

Because the elements of standing are “not mere pleading
requirements but rather an indispensable part of the plaintiff’s
case,” plaintiffs must support each element of Article III
standing “with the manner and degree of evidence required at
the successive stages of the litigation.” Id. at 561. Although at
the pleading stage general factual allegations may suffice to
establish standing, “[i]n response to a summary judgment
motion . . . the plaintiff can no longer rest on such mere
allegations, but must set forth by affidavit or other evidence
specific facts.” Id. (internal quotation marks omitted). Where,
as here, standing remains an issue at trial, the plaintiff’s
burden is higher still: the facts establishing standing must be
“supported adequately by the evidence adduced at trial.” Id.
(quotation omitted). In reviewing a district court’s standing
determination, “the court must be careful not to decide the
questions on the merits for or against the plaintiff.” Defenders
of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008)
(quotation omitted). For purposes of this appeal, therefore, we
shall assume that the use of bullhooks and tethering amounts
to a “take” prohibited by ESA section 9.
 8
With this background in mind, we consider plaintiffs’
three theories of standing.

Tom Rider
In our prior decision, we held that the allegations in
Rider’s complaint, if proven, were sufficient to establish
standing. Then, following a six-week bench trial, the district
court found that Rider failed to credibly prove “the allegations
the Court of Appeals had to accept as true at the pleading
stage to support Rider’s Article III standing to sue.” ASPCA,
677 F. Supp. 2d at 67.

The district court based its conclusion on extensive
findings of fact, as well as its “observations of Mr. Rider on
the witness stand over the course of two days.” Id. at 94. In
particular, the district court determined that Rider was
“essentially a paid plaintiff and fact witness who is not
credible.” Id. at 67. In support of this finding, the district
court observed that Rider complained publicly about the
elephants’ mistreatment only after he was paid by activists to
do so. It is undisputed that between March 2000 and
December 2008, Rider received at least $190,000 from the
organizational plaintiffs in this lawsuit, as well as from an
organization run by plaintiffs’ attorneys. Although
acknowledging that Rider performed some media and
educational outreach work for the organizations during this
time, the district court found that the primary purpose for the
payments was to keep Rider involved with the litigation. The
district court also noted that although these payments
constituted Rider’s sole income since March 2000, Rider had,
in his answers to interrogatories, falsely denied receiving any
compensation from the organizational plaintiffs and their
counsel. In its detailed memorandum opinion, the district
court also found that Rider had referred to one of the
elephants as a “bitch” and “killer elephant” who “hated” him;
 9
that he struggled to recall the names of the elephants in two
separate depositions; that he had failed to take advantage of
multiple opportunities to visit the elephants outside of the
circus; and that he was unable to identify the individual
elephants on videotape, including one who had the
“distinctive and unusual (for an Asian elephant) characteristic
of a swayed back.” Id. at 83–87 (internal quotation marks
omitted). The district court observed further that after leaving
his employment with Feld, Rider had used a bullhook on
elephants at a circus in Europe, casting doubt on his claim that
he left the Ringling Brothers circus because he was unable to
witness further mistreatment of Asian elephants. Finding that
these facts, along with other inconsistencies in Rider’s
testimony, undermined his credibility, the district court
concluded that Rider failed to prove that he had a “personal
and emotional attachment” to the seven elephants with whom
he worked sufficient to establish injury in fact. Id. at 89.

On appeal, Rider seeks to overcome the district court’s
detailed factual findings and credibility determination by
arguing that the district court applied a more stringent legal
standard than required by our decisions. Specifically, he
argues that the district court required him to prove a “single-
minded, all-consuming obsession” with the elephants,
Appellants’ Br. 46, whereas our case law calls on him to show
only that he developed a “personal attachment” to the
elephants, ASPCA, 317 F.3d at 337, and that he suffered an
injury “in a personal and individual way,” Glickman, 154 F.3d
at 433. According to Rider, he satisfied this burden by
convincing the district court that he worked closely with
Feld’s elephants for two-and-a-half years, that he complained
to his direct supervisor and elephant handlers about the
mistreatment, and that he saw some of the elephants ten to
fifteen times per year when he visited the circus as part of his
media work. The district court erred, he argues, by going on
 10
to find that if, as Rider testified, he quit his prior circus
employment due to elephant abuse, he likely would not have
remained in his subsequent employment with Feld for two-
and-a-half years; that he failed to complain about the
mistreatment to anyone in Feld’s management; that he
forewent opportunities to visit the elephants outside of the
circus; and that it was unlikely that he would have undertaken
his media and advocacy efforts had he not been paid to do so
by the organizational plaintiffs.

As discussed above, however, the district court’s
conclusion that Rider failed to credibly prove an emotional
attachment to any particular elephant rested on extensive
factual findings, including Rider’s difficulty recalling the
elephants’ names, his use of the bullhook in Europe, his lack
of forthrightness about payments he received from the
organizational plaintiffs, and various inconsistencies in his
testimony. The district court prefaced its findings with an
accurate discussion of our decision in ASPCA and clearly
recognized that “an emotional attachment to a particular
animal can form the predicate for an aesthetic injury.”
ASPCA, 677 F. Supp. 2d at 89. That the district court relied on
facts such as Rider’s failure to complain to management
hardly suggests that the court believed proof of such facts was
required to establish a cognizable injury. Rather, the district
court simply found that those facts, taken in the context of the
record as a whole, further undermined Rider’s credibility and
called into question his “personal attachment” to Feld’s
elephants.

Moreover, no case supports Rider’s claim that the district
court’s findings that he worked with Feld’s elephants for two-
and-a-half years, made occasional complaints during that
time, and subsequently witnessed the elephants performing in
the circus are, by themselves, sufficient to establish injury in
 11
fact. Rider cites our decision in Glickman, claiming that it
holds that a “plaintiff’s repeated visits to view animals
maintained under inhumane conditions, if true, established the
personal injury necessary to support Article III standing.”
Appellants’ Br. 44. But it was not the visits alone that
established the injury in Glickman, but rather the visits
together with the plaintiff’s claim, accepted as true at that
stage of the proceeding, that the inhumane conditions injured
his aesthetic sense. 154 F.3d at 431–32. As to this element of
standing, the district court disbelieved Rider and found, as a
matter of fact, that Rider did not have the personal attachment
he claimed and did not, as he claimed, suffer from the
elephants’ mistreatment. Nothing in these findings reflects an
erroneous application of our case law.

Because Rider has failed to show that the district court
applied an erroneous legal standard, we are left to review the
district court’s fact-findings and credibility determination for
clear error. See Armstrong, 608 F.3d at 857. Under this
standard, we may not set aside findings of fact “simply
because [we are] convinced that [we] would have decided the
case differently.” Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985). Instead, to find clear error, we must be “left
with the definite and firm conviction that a mistake has been
committed.” Id. (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)).

Rider points to only one purportedly clear error in the
district court’s injury analysis—its statement that “[a]fter Mr.
Rider left his employment with [Feld] in November 1999, he
did not complain to the USDA or to any other animal control
authority about the treatment of [Feld’s] elephants,” ASPCA,
677 F. Supp. 2d at 70. According to Rider, this statement
constitutes clear error because the record shows that Rider
complained to USDA in July 2000. Read in context, however,
 12
the district court’s statement is far from clearly erroneous.
The court made the challenged statement in the course of a
chronological recitation of Rider’s history in various circuses,
and the statement describes Rider’s actions immediately
following his departure from Feld and preceding his
employment in Europe in December 1999. Rider has never
claimed that he contacted USDA during that period.
Moreover, as Feld points out, the district court’s finding
tracks Rider’s trial testimony exactly. See Trial Tr. at 46 (Feb.
12, 2009 PM) (“Q: And after you left Ringling Brothers, you
didn’t take any of your concerns about elephant treatment to
the USDA, did you? A: No sir.”). Given this, we see no basis
for finding clear error.

API—Informational Standing
In FEC v. Akins, the Supreme Court explained that a
plaintiff “suffers an ‘injury in fact’ when the plaintiff fails to
obtain information which must be publicly disclosed pursuant
to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998); see also
Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449
(1989) (finding that failure to obtain information subject to
disclosure under Federal Advisory Committee Act
“constitutes a sufficiently distinct injury to provide standing
to sue”). Following Akins, we have recognized that “a denial
of access to information can work an ‘injury in fact’ for
standing purposes, at least where a statute (on the claimants’
reading) requires that the information ‘be publicly disclosed’
and there ‘is no reason to doubt their claim that the
information would help them.’ ” Ethyl Corp. v. EPA, 306 F.3d
1144, 1148 (D.C. Cir. 2002) (quoting Akins, 524 U.S. at 21).

Although API brought this suit under the “take”
provision of ESA section 9, its claim to informational
standing rests on section 10(c), which requires public
disclosure of information contained in permit applications.
 13
Specifically, a party who applies for a permit must provide
specified information to the Fish and Wildlife Service, and the
Service, in turn, must make that information available to the
public. See 16 U.S.C. § 1539(c) (“The Secretary shall publish
notice in the Federal Register of each application for an
exemption or permit which is made under this section. . . .
Information received by the Secretary as a part of any
application shall be available to the public as a matter of
public record at every stage of the proceeding.”). According
to API, because, under its view, Feld’s treatment of elephants
constitutes a “take” prohibited by section 9, the company
cannot lawfully engage in these practices without first
applying for and obtaining a permit pursuant to section 10, in
which case it will have to submit the information required by
that section, information which will then be available to API.
This, API argues, gives it informational standing to bring this
case. We disagree.

For purposes of informational standing, a plaintiff “is
injured-in-fact . . . because he did not get what the statute
entitled him to receive.” Zivotofsky v. Sec’y of State, 444 F.3d
614, 618 (D.C. Cir. 2006); see also Shays v. FEC, 528 F.3d
914, 923 (D.C. Cir. 2008) (“Shays’s injury in fact is the denial
of information he believes the law entitles him to.”). To
establish such an injury, a plaintiff must espouse a view of the
law under which the defendant (or an entity it regulates) is
obligated to disclose certain information that the plaintiff has
a right to obtain. In Akins, for example, the plaintiffs
challenged the Federal Election Commission’s determination
that the American Israel Public Affairs Committee (AIPAC)
was not a “political committee” as defined by the Federal
Election Campaign Act (FECA) and therefore not subject to
FECA’s disclosure requirements. Akins, 524 U.S. at 13.
Under plaintiffs’ contrary view of the law—that AIPAC’s
activities rendered it a “political committee”—AIPAC would
 14
be required to disclose information about its donors and
contributions, information that plaintiffs would have a right to
obtain. See id. at 21 (“The ‘injury in fact’ that respondents
have suffered consists of their inability to obtain
information—lists of AIPAC donors . . . and campaign-
related contributions and expenditures—that, on respondents’
view of the law, the statute requires that AIPAC make
public.”). Because of this, the Supreme Court held, plaintiffs
had informational standing to challenge the agency’s decision.
Were plaintiffs to prevail, AIPAC would have to disclose the
information they sought. Similarly, in Judicial Watch, Inc. v.
U.S. Department of Commerce, the plaintiff alleged that the
Department violated the Federal Advisory Committee Act
(FACA) reporting requirements by failing to disclose
information about its meetings with the North American
Competitiveness Council. 583 F.3d 871, 872–73 (D.C. Cir.
2009). Much as in Akins, under the plaintiff’s view of the
law—that the North American Competitiveness Council and
its subgroups qualified as “advisory committees” under
FACA—the Department would be “subject to an array of
FACA obligations” to disclose information about its
meetings. Id. at 873. Because plaintiff would have a right to
this information, we held that it had standing to sue the
Department for reporting violations.

This case is very different. As the district court pointed
out, unlike the statutes under which plaintiffs sued in Akins
and Judicial Watch, nothing in section 9 gives API a right to
any information. If API is correct about section 9—that Feld’s
use of bullhooks and chains constitutes a prohibited take—
then Feld would be obligated to cease those practices, but
nothing in section 9, even under API’s view, would entitle
plaintiffs to any information. True, if Feld wished to
recommence the use of bullhooks and chains, it would have to
seek a section 10 permit from the Fish and Wildlife Service,
 15
and section 10(c) would then entitle API to obtain the
information received by the Service as part of Feld’s permit
application. See 16 U.S.C. § 1539(c). If at that point Feld
refused to disclose information in its permit application that
API believed the statute required, or if the Fish and Wildlife
Service refused to make public the information it received,
then API might have informational standing to bring suit for
violations of section 10. Compare Found. on Econ. Trends v.
Lyng, 943 F.2d 79, 84–85 (D.C. Cir. 1991) (noting, without
deciding the informational standing question, that “[t]he
proposition that an organization’s desire to supply
environmental information to its members, and the
consequent ‘injury’ it suffers when the information is not
forthcoming in an [environmental] impact statement,
establishes standing without more also encounters the obstacle
of Sierra Club v. Morton, 405 U.S. 727 (1972)”), with
Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 111
(D.D.C. 2009) (finding informational standing where
plaintiffs alleged that the Fish and Wildlife Service violated
section 10(c) by promulgating a rule that eliminated permit
requirements for takings of certain antelope). But here API
seeks only to enforce section 9; indeed, a suit under section 10
would be entirely premature.

Attempting to plead around this problem, API
characterizes Feld’s unlawful conduct as the “ ‘taking’ of
elephants without permission from the Fish and Wildlife
Service pursuant to the process created by section 10 of the
Endangered Species Act.” Suppl. Compl. ¶ 6. But ESA
proscribes the “take” itself, not the failure to seek a permit,
and nothing in the Act entitles the public to information every
time a circus or zoo “takes” an endangered animal. In this
sense, ESA is quite different from the statutes at issue in both
Akins and Judicial Watch. FECA “imposes extensive
recordkeeping and disclosure requirements” in order “to
 16
remedy any actual or perceived corruption of the political
process.” Akins, 524 U.S. at 14. Likewise, FACA “ensure[s]
. . . that Congress and the public remain apprised of [advisory
committees’] existence, activities, and cost.” Public Citizen,
491 U.S. at 446. By contrast, ESA’s primary purpose is to
conserve endangered and threatened species. 16 U.S.C.
§ 1531(b). It achieves this not by imposing extensive
reporting requirements on persons who “take” endangered
animals, but rather by prohibiting such “takings.” 16 U.S.C.
§ 1538(a)(1). Section 10’s disclosure requirements are
secondary to this prohibition, triggered only in the context of
an ongoing permit proceeding and intended, not to provide a
broad right to information about the activities of any person
engaged in a taking, but to allow interested parties to
comment on and assist the Secretary’s evaluation of permit
applications. See 16 U.S.C. § 1539(c) (requiring the Secretary
to “invite the submission from interested parties . . . of written
data, views, or arguments with respect to the [permit]
application”). Given the differences between FECA and
FACA, on the one hand, and ESA, on the other, we see
nothing in Akins that would authorize us to extend
informational standing to a situation where, as here, the
plaintiff’s view of the statute would not directly entitle it to
the information it seeks.

API—Havens Standing
An organization may assert standing on its own behalf or
on behalf of its members. Equal Rights Ctr. v. Post Props.,
Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, API claims
standing only on its own behalf, in which case it must make
the same showing required of individuals: an actual or
threatened injury in fact that is fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be
redressed by a favorable court decision. Spann v. Colonial
Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990). As the Supreme
 17
Court held in Sierra Club, an 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.” Sierra Club v.
Morton, 405 U.S. 727, 739 (1972). This is because “an
organization’s abstract concern with a subject that could be
affected by an adjudication does not substitute for the
concrete injury required by Art. III.” Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 40 (1976). Accordingly,
organizations “who seek to do no more than vindicate their
own value preferences through the judicial process” generally
cannot establish standing. Sierra Club, 405 U.S. at 740; see
also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
(1982).

In Havens Realty Corp. v. Coleman, however, the
Supreme Court held that an organization may establish Article
III standing if it can show that the defendant’s actions cause a
“concrete and demonstrable injury to the organization’s
activities” that is “more than simply a setback to the
organization’s abstract social interests.” 455 U.S. at 379. In
Havens, the organizational plaintiff, a nonprofit seeking to
promote equal opportunity in housing, alleged that Havens
Realty Corporation engaged in “ ‘racial steering’ ” in
violation of the Fair Housing Act. Id. at 366. The organization
argued that it had standing to sue in its own right because
Havens’s racial steering practices frustrated its efforts “ ‘to
assist equal access to housing through counseling and other
referral services’ ” and caused the organization to devote
resources to identifying and counteracting the unlawful
practices. Id. at 379 (quoting complaint). Taking these
allegations as true, the Supreme Court held that if the
organization could show that the steering practices
“perceptibly impaired [its] ability to provide counseling and
referral services for low- and moderate-income homeseekers,”
 18
such impairment would constitute an injury in fact sufficient
to support standing. Id. Because “[s]uch concrete and
demonstrable injury to the 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,” id., the Court distinguished the case from
Sierra Club, where the organizational plaintiff had alleged
nothing more than a “mere interest in a problem,” Sierra
Club, 405 U.S. at 739 (internal quotation marks omitted).

For our part, we “ha[ve] applied Havens Realty to justify
organizational standing in a wide range of circumstances.”
Abigail Alliance for Better Access to Developmental Drugs v.
Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006). Our case
law, however, establishes two important limitations on the
scope of standing under Havens. See id. First, an organization
seeking to establish Havens standing must show a “direct
conflict between the defendant’s conduct and the
organization’s mission.” Nat’l Treasury Emps. Union v.
United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996). If the
challenged conduct affects an organization’s activities, but is
neutral with respect to its substantive mission, we have found
it “entirely speculative” whether the challenged practice will
actually impair the organization’s activities. Id. Second, an
organization may not “manufacture the injury necessary to
maintain a suit from its expenditure of resources on that very
suit.” Spann, 899 F.2d at 27. Under our case law, 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. Equal Rights Ctr., 633 F.3d at
1139–40.

As explained in Equal Rights Center, we begin an inquiry
into Havens standing by asking whether the defendant’s
 19
allegedly unlawful activities injured the plaintiff’s interest in
promoting its mission. Id. at 1140. If the answer is yes, we
then ask whether the plaintiff used its resources to counteract
that injury. See id. (“Instead of focusing entirely on the
voluntariness of the ERC’s diversion of resources, therefore,
the district court should have asked, first, whether Post’s
alleged discriminatory conduct injured the ERC’s interest in
promoting fair housing and, second, whether the ERC used its
resources to counteract that harm.”).

Claiming Havens standing, API contends that Feld’s
unlawful conduct undermines its advocacy and public
education efforts—“the entire point of which is to put an end
to the injury [bullhooks and chains] inflict on the
elephants”—by “contributing to the public misimpression,
particularly in young children, that bullhooks and chains are
lawful and humane practices.” Appellants’ Br. 27. According
to API, it must spend resources on public education, and in
gathering and disseminating information about Feld’s
practices, in order to “counter the misimpression resulting
from [Feld’s] mistreatment of the elephants.” Id. at 28. Citing
trial testimony of its Senior Vice President and General
Counsel, Nicole Paquette, API claims that it spends,
independent of the instant litigation, approximately $98,000
per year on circus animal advocacy. API’s circus animal
advocacy activities include public education through fliers,
public-service announcements, and billboards; education and
outreach to its members through quarterly letters, “action
alerts,” and articles in its magazine; drafting legislation and
lobbying for measures prohibiting the mistreatment of
animals in circuses; and monitoring regulatory processes for
information and opportunities to comment on issues relating
to circus animals. Paquette testified that most of API’s circus
animal advocacy efforts are focused on Feld’s practices and
that it would no longer need to spend “the bulk” of these
 20
resources if Feld no longer had elephants. Trial Tr. at 38 (Feb.
19, 2009 PM).

Feld urges us to reject API’s position, arguing that injury
to an organization’s “advocacy,” as opposed to its provision
of concrete services or programs, is insufficient to support
Havens standing. Relying heavily on our decision in Center
for Law & Education v. Department of Education, 396 F.3d
1152 (D.C. Cir. 2005), Feld argues that “ ‘to hold that a
lobbyist/advocacy group had standing . . . with no injury other
than injury to its advocacy would eviscerate standing
doctrine’s actual injury requirement,’ ” Appellee’s Br. 16
(emphasis omitted) (quoting Ctr. for Law & Educ., 396 F.3d
at 1162 n.4), and contends that API lacks standing because
“ ‘the only service’ ” alleged to be impaired by Feld’s
practices is “ ‘pure issue-advocacy,’ ” Appellee’s Br. 21
(quoting Ctr. for Law & Educ., 396 F.3d at 1162). Feld thus
draws a sharp distinction between advocacy and other
activities, arguing that this case falls on the wrong side of the
line.

We are unpersuaded that Center for Law & Education so
easily ends the inquiry. Although that opinion does contain
broad language, it relies on our decision in National Treasury
Employees Union v. United States, which held only that an
effect on an organization’s lobbying efforts, absent direct
conflict with the organization’s mission, was insufficient to
establish standing. 101 F.3d at 1430. Much like the plaintiff in
National Treasury Employees Union, the plaintiffs in Center
for Law & Education never “challenge[d] the substance” of
the federal regulations at issue, 396 F.3d at 1155, arguing
instead that the regulations injured them by “forc[ing] them to
change their lobbying strategies” to a more expensive, state-
by-state approach, id. at 1161. In other words, in Center for
Law & Education, as in National Treasury Employees Union
 21
on which it relies, standing failed for lack of a conflict
between the challenged conduct and the plaintiffs’ stated
mission. Center for Law & Education says nothing about the
situation we face here, where the defendant’s conduct is both
clearly “at loggerheads” with the organization’s mission,
Nat’l Treasury Employees Union, 101 F.3d at 1429 (quotation
omitted), and allegedly injures the organization’s advocacy
activities.

Moreover, many of our cases finding Havens standing
involved activities that could just as easily be characterized as
advocacy—and, indeed, sometimes are. In Equal Rights
Center, for instance, we spoke of an injury to the
organizational plaintiff’s “interest in promoting fair housing.”
633 F.3d at 1140. And in Abigail Alliance, although
recognizing a distinction “between organizations that allege
that their activities have been impeded from those that merely
allege that their mission has been compromised,” we found
that the Alliance had “met this threshold by alleging that it
actively engages in counseling, referral, advocacy, and
educational services.” 469 F.3d at 133 (emphasis added)
(internal quotation marks omitted). Indeed, API’s claims
closely mirror those we found sufficient to support standing in
Spann. There, we concluded that a fair housing organization
had standing to sue a condominium owner over
discriminatory advertisements, reasoning that the organization
might have to expend additional resources on public
education to “rebut any public impression the advertisements
might generate that racial discrimination in housing is
permissible.” Spann, 899 F.2d at 29. Here, similarly, API
claims that it must expend additional resources on public
education to rebut the misimpression, allegedly caused by
Feld’s practices, that the use of bullhooks and chains is
permissible.
 22
Ultimately, whether injury to an organization’s advocacy
supports Havens standing remains an open question that we
have no need to resolve here. For even assuming API can
establish injury in fact, its claim to Havens standing falters on
causation grounds. Central to API’s standing is its allegation
that Feld’s unlawful practices injure its advocacy and public
education efforts because use of bullhooks and chains by the
well-known circus creates a public impression, particularly
among children, that bullhooks and chains are not harmful to
the elephants. This impression, in turn, makes it more
difficult—and therefore more expensive—for API to educate
the public about the harm inflicted by chains and bullhooks.
At oral argument, API maintained that we can draw a “logical
inference” that Feld’s use of bullhooks and chains creates a
public impression that those practices are humane and lawful.
Oral Arg. Tr. at 6:20-23. But at this stage of the proceedings,
logic is insufficient to establish standing.

As the party invoking federal jurisdiction, API bears the
burden of establishing each element of standing “with the
manner and degree of evidence required at the successive
stages of the litigation.” Lujan, 504 U.S. at 561; see also
Equal Rights Ctr., 633 F.3d at 1141 n.3 (noting that although
“the burden imposed on a plaintiff at the pleading stage is not
onerous,” that burden “increases . . . as the case proceeds”).
Having gone to trial, API bore the burden of proving
causation, not through logic, but through “specific facts”
supported adequately by testimony or other evidence. Lujan,
504 U.S. at 561. To be sure, record evidence establishes not
only that API expends resources advocating for the better
treatment of elephants, but also that at least some of Feld’s
advertising budget is used to portray its Asian elephants as
healthy and content. But nothing in the record supports the
key link in API’s standing argument, namely, that Feld’s use
of bullhooks and chains fosters a public impression that these
 23
practices are harmless. Although Paquette testified
extensively about API’s advocacy and expenditures, she never
mentioned API’s efforts to counteract that public impression.
And although API put on numerous experts, it failed to
provide any expert testimony regarding the effect of Feld’s
use of bullhooks and chains upon the public’s impression of
those practices.

Indeed, the only evidence arguably on point comes from
Tom Rider, who testified that Feld takes steps to conceal the
chains and bullhooks from public view. Specifically, he
testified that when Feld exhibits the elephants during an
“open house,” its employees “pile all the hay on top of the
chains” so that the public cannot see them, Trial Tr. at 38
(Feb. 12, 2009 AM), and that when its handlers use bullhooks
in circus performances, they “wrap black tape around the
hook at the top” so that members of the audience are unable to
see it. Id. at 46. Contrary to API’s claim that Feld’s treatment
of elephants gives the public the impression that the use of
bullhooks and chains is humane, Rider’s testimony suggests
that the public may in fact have little awareness of these two
techniques. True, as counsel pointed out at oral argument,
even a limited awareness could lead the public to think that
the elephants are happy and content despite the use of
bullhooks and chains, but the point—and the one that is fatal
to API’s standing—is that it has failed to demonstrate that
Feld’s treatment of elephants “contribut[es] to the public
misimpression, particularly in young children, that bullhooks
and chains are lawful and humane practices.” Appellants’ Br.
27.
 24
III.
For the foregoing reasons, API and Rider lack Article III
standing to maintain this action. We therefore affirm.

So ordered.