Friends of Animals v. Jewell

• Decision Date: 15 July 2016
• Docket Number: No. 15-5223,15-5223
• Citation: 828 F.3d 989
• Parties: Friends of Animals, Appellant v. Sally Jewell, in her official capacity as Secretary of Interior, Department of the Interior, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

828 F.3d 989

Friends of Animals, Appellant

v.Sally Jewell, in her official capacity as Secretary of Interior, Department of the Interior, Appellee.

No. 15-5223

United States Court of Appeals, District of Columbia Circuit.

Argued May 16, 2016

Decided July 15, 2016

Rehearing En Banc Denied September 8, 2016

Jennifer E. Best argued the cause for appellant. With her on the briefs was Michael R. Harris.

Matthew Littleton, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were John C. Cruden, Assistant Attorney General, and Andrew C. Mergen, Washington, DC, and Thekla Hansen–Young, Attorneys.

Before: Rogers, Srinivasa n and Millet t, Circuit Judges.

Rogers, Circuit Judge:

This appeal presents a single question: Does Friends of Animals have informational standing under Article III of the Constitution to challenge the failure of the Secretary of Interior to act in accordance with a deadline in section 4 of the Endangered Species Act? Because this deadline provision does not itself mandate the disclosure of any information, Friends of Animals has not suffered an informational injury and therefore does not have informational standing. Essentially, Friends of Animals has invoked informational standing prematurely. At this stage in the administrative process, Friends of Animals is not entitled to any information. Accordingly, we affirm the dismissal of its complaint.

I.

Congress enacted the Endangered Species Act (“the Act”), Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified as amended at 16 U.S.C. § 1531 et seq. ), to conserve endangered and threatened species. See 16 U.S.C. § 1531(b). Section 4 empowers the Secretaries of the Interior and Commerce to designate species endangered or threatened and directs the Secretary of the Interior (“the Secretary”) to list in the Federal Register all species covered by either designation. Id. § 1533(a), (c)(1). Once a species is listed, it becomes subject to a variety of statutory and regulatory protections. See, e.g. , id. §§ 1533(d), 1536, 1538(a).

Any “interested person” may petition the Secretary to add a species or remove it from the endangered or threatened species lists. Id. § 1533(b)(3)(A); see also 5 U.S.C. § 553(e) ; 50 C.F.R. § 424.14(a). A petition to list or de-list triggers two mandatory deadlines. First , “[t]o the maximum extent practicable, within 90 days after receiving the petition,” the Secretary “shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). Second , if the Secretary makes a positive 90-day finding, then—within 12 months of having received the petition—she must make one of three findings: that the listing action requested is (1) not warranted, (2) warranted, or (3) warranted but temporarily “precluded” by pending proposals to list other species. Id. § 1533(b)(3)(B)(i)–(iii) ; see generally Friends of Animals v. Ashe , 808 F.3d 900, 902–03 (D.C. Cir. 2015).

Whichever of the three 12-month findings the Secretary makes, she must publish certain information in the Federal Register. If she makes a “not warranted” finding, she must publish that finding.

16 U.S.C. § 1533(b)(3)(B)(i). If she makes a “warranted” finding, she must publish a general notice and the text of a proposed regulation implementing the listing decision. Id. § 1533(b)(3)(B)(ii). If she makes a “warranted” but “precluded” finding, she must publish that finding, along with “a description and evaluation of the reasons and data on which the finding is based.” Id. § 1533(b)(3)(B)(iii). The Secretary has delegated the section 4 listing responsibilities in part to the Fish and Wildlife Service (“FWS”). See 50 C.F.R. § 402.01(b) ; see also Nat'l Ass'n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 651, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ; Ashe , 808 F.3d at 902.

The Act's citizen-suit provision permits “any person” to bring suit against the Secretary in federal district court alleging that the Secretary has failed to perform a non-discretionary act or duty required by section 4. 16 U.S.C. § 1540(g)(1)(C). The Secretary's duty to comply with section 4's 12-month finding provision—once triggered by a positive 90-day finding—is non-discretionary and therefore falls within the citizen-suit provision. See Ashe , 808 F.3d at 903. Before filing suit pursuant to subparagraph (1)(C) of the citizen-suit provision, however, a plaintiff generally must give the Secretary 60 days' prior notice. 16 U.S.C. § 1540(g)(2)(C).

According to the complaint, Friends of Animals is a nonprofit organization that seeks to protect animals from cruelty and exploitation. On September 27, 2013, it submitted two listing petitions asking the Secretary to list the spider tortoise and the flat-tailed tortoise as either threatened or endangered. More than eight months later, on June 9, 2014, the FWS issued positive 90-day findings in response to both listing petitions. See 90-Day Finding on Petitions To List Two Tortoises as Endangered or Threatened and and [sic] a Sloth as Endangered, 79 Fed. Reg. 32,900, 32,902. Twelve months after it had filed its petitions, Friends of Animals found itself still waiting for the 12-month findings and served the Secretary with notice of its intent to sue. In December 2014, the FWS sent Friends of Animals a letter stating that it planned to issue 12-month findings for both listing petitions in fiscal year 2017 (October 1, 2016—September 30, 2017).

Subsequently, Friends of Animals filed suit in the district court, alleging that the Secretary had violated section 4 of the Act by not timely issuing 12-month findings in response to its listing petitions. It principally sought declaratory and injunctive relief, in particular a declaratory judgment that the Secretary had violated the Act by not issuing 12-month findings in response to the listing petitions and not listing the two tortoise species as endangered or threatened, and an order directing the Secretary to issue findings and rulemakings on each species within 60 days. The district court granted the Secretary's motion to dismiss the complaint for lack of Article III standing, ruling that Friends of Animals had failed to satisfy the elements of any of the three theories of standing it advanced: informational standing, organizational standing, and associational standing. Friends of Animals v. Jewell , 115 F.Supp.3d 107, 110–19 (D.D.C. 2015) ; Fed. R. Civ. P. 12(b)(1). Friends of Animals appeals, challenging only the district court's ruling on informational standing. Our review is de novo . See Friends of Animals v. Jewell , No. 15-5070, 824 F.3d 1033, 1039–40, 2016 WL 3125204, at *5 (D.C. Cir. June 3, 2016).

II.

Under any theory, “the irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered an “injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (2) there must exist “a causal connection between the injury and the conduct complained of”; and (3) it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). The burden of establishing these elements falls on the party invoking federal jurisdiction, and at the pleading stage, a plaintiff must allege facts demonstrating each element. Id. at 561, 112 S.Ct. 2130. As the Supreme Court recently indicated, the existence and scope of an injury for informational standing purposes is defined by Congress: a plaintiff seeking to demonstrate that it has informational standing generally “need not allege any additional harm beyond the one Congress has identified.” Spokeo, Inc. v. Robins , –––U.S. ––––, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016) (emphasis in original) (citing FEC v. Akins , 524 U.S. 11, 20–25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), and Pub. Citizen v. U.S. Dep't of Justice , 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) ). That type of injury is the sole basis on which Friends of Animals contends it has standing.

A plaintiff suffers sufficiently concrete and particularized informational injury where the plaintiff alleges that: (1) it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure. See Akins , 524 U.S. at 21–22, 118 S.Ct. 1777. The scope of the second part of the inquiry may depend on the nature of the statutory disclosure provision at issue. In some instances, a plaintiff suffers the type of harm Congress sought to remedy when it simply “s[eeks] and [is] denied specific agency records.” Pub. Citizen , 491 U.S. at 449–50, 109 S.Ct. 2558. In others, a plaintiff may need to allege that nondisclosure has caused it to suffer the kind of harm from which Congress, in mandating disclosure, sought to protect individuals or organizations like it. Compare Akins , 524 U.S. at 21–23, 118 S.Ct. 1777, and Shays v. FEC , 528 F.3d 914, 923 (D.C. Cir. 2008), with Nader v. FEC , 725 F.3d 226, 230 (D.C. Cir. 2013).

Here, Friends of Animals's contention that it has standing fails at the first part of the inquiry, the sine qua non of informational injury: It is seeking to enforce a statutory deadline provision that by its terms does not require the public disclosure of information. The disclosure requirement Friends of Animals points to as the source of its informational injury does not impose any obligations on the Secretary until a later time in the listing process. To the contrary, Friends of Animals insists, section 4 of the Act gives it a right to two categories of information now, and it suffers informational injury...