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,

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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

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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).

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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

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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

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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

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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.

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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;

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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

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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

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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,

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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.

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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

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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,

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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

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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

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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,”

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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

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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

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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

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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.

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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

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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.

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III.

For the foregoing reasons, API and Rider lack Article III

standing to maintain this action. We therefore affirm.

So ordered.