USCA4 Appeal: 24-1458 Doc: 51 Filed: 07/22/2025 Pg: 1 of 25
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1458
RISE FOR ANIMALS; ANIMAL LEGAL DEFENSE FUND,
Plaintiffs - Appellants,
v.
GARY WASHINGTON, Acting Secretary of the United States Department of Agriculture; SARAH HELMING, Deputy Administrator of Animal Care,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Julie R. Rubin, District Judge. (8:22-cv-00810-JRR)
Argued: May 7, 2025 Decided: July 22, 2025
Before THACKER, HARRIS, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Andrew Erselius, ANIMAL LEGAL DEFENSE FUND, Washington, D.C., for Appellants. Brian James Springer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Daniel H. Waltz, ANIMAL LEGAL DEFENSE FUND, Washington, D.C., for Appellants. Brian M. Boynton, Principal Deputy Assistant Attorney General, Daniel Tenny, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. USCA4 Appeal: 24-1458 Doc: 51 Filed: 07/22/2025 Pg: 2 of 25
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rise for Animals1 and Animal Legal Defense Fund2 (“Appellants”) sued the United
States Department of Agriculture (“USDA”) pursuant to the Administrative Procedure Act
(“APA”) for an alleged violation of the Animal Welfare Act (“AWA”). Because we
conclude that Appellants lack standing, we affirm the district court’s grant of the USDA’s
motion to dismiss.
I.
In order to carry out their missions, Appellants rely on inspection reports produced
by the USDA to ensure animals being used for research purposes are treated humanely in
compliance with the AWA. The AWA requires the USDA to conduct inspections;
memorialize the findings of those inspections in inspection reports; and maintain a publicly
available database of those inspection reports. In this litigation, Appellants claim an
informational injury because the published inspection reports, to which they have access,
do not detail every instance of AWA noncompliance.
1 According to their website, Rise for Animals “is a national animal rights organization on a mission to end nonhuman animal experimentation in our lifetimes. . . [by] advocat[ing] for the abolition of nonhuman animal experimentation, including the liberation of nonhuman animals.” About Us, Rise for Animals, (July 3, 2025), https://perma.cc/5JWQ-WL8X. 2 Animal Legal Defense Fund describes itself as an organization which seeks to “protect the lives and advance the interests of animals through the legal system.” Animal Legal Defense Fund, About Us, (July 3, 2025), https://perma.cc/CX97-25MY.
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A.
In 1966, Congress passed the AWA “to ensure that animals intended for use in
research facilities or for exhibition purposes . . . are provided humane care and treatment.”
7 U.S.C. § 2131. Congress charged the Secretary of the USDA (“Secretary”), or the
Secretary’s delegated representative, with enforcement of the AWA. Id. at § 2146. The
Secretary has delegated this enforcement authority to the Animal Plant and Health
Inspection Service (“APHIS”). 7 C.F.R. § 2.80(a)(6). In this capacity, APHIS “shall
promulgate standards to govern the humane handling, care, treatment and transportation of
animals by dealers, research facilities, and exhibitors.” 7 U.S.C. § 2143(a)(1). These
standards “include minimum requirements for handling, housing, feeding, watering,
sanitation, ventilation, shelter[,] . . . [and] adequate veterinary care . . . necessary for [the]
humane handling, care, or treatment of animals.” Id. at § 2143(a)(2)(A).
1.
To ensure these minimum requirements are being maintained, the AWA requires
APHIS to “make such investigations or inspections as [it] deems necessary to determine
whether any [covered entity] . . . has violated or is violating any provision of [the AWA]
or any regulation.” 7 U.S.C. § 2146(a). The AWA imposes additional requirements for
animals housed in “research facilities.” Id. at § 2136. A research facility is defined as any
organization that “uses or intends to use live animals in research, tests, or experiments and
that (1) purchases or transports live animals in commerce, or (2) receives funds” from the
federal government for research purposes. Id. at § 2132(e). The AWA requires APHIS to
inspect research facilities “at least once a year.” Id. at § 2146(a). If any deficiencies or
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deviations from the AWA standards are identified, APHIS is required to “conduct such
follow-up inspections as may be necessary until all deficiencies or deviations from such
standards are corrected.” Id. We refer to this annual inspection requirement contained in
§ 2146(a) as the “Inspection Provision.”
Despite the Inspection Provision, the AWA does not define “inspect” or
“inspection.” But the USDA publishes an “Animal Welfare Inspection Guide” in order to
“provide an aid for APHIS Animal Care Personnel when inspecting USDA licensed and
registered facilities.” Rise for Animals v. Vilsack, 8:22-cv-00810-JRR, ECF No. 38 (D.
Md. Oct. 16, 2023). The Animal Care unit of APHIS “has the responsibility of inspecting
all facilities covered under the AWA and following up on complaints of abuse and
noncompliance.” Id. Importantly, “the Inspection Guide is not a regulation and does not
rise to the level of policy,” but is a “tool to improve the quality and uniformity of
inspections, documentation, and enforcement of the Animal Care Program.” Id.
The Inspection Guide details two different types of inspections conducted by
APHIS: routine or focused. A routine inspection is a “normal periodic, unannounced
inspection including [a] complete inspection of the facility.” Id. A focused inspection is
far less intensive, involving an “unannounced inspection covering a localized area of a
facility.” Id. These localized areas can include either re-inspection in connection with
previously identified instances of noncompliance, a “partial inspection of the facility, such
as animals or records only”, or “a partial inspection to follow up on a public complaint
concerning animal welfare.” Id. “Thus, in general, a ‘focused’ inspection requires less
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time and resources to conduct than a ‘routine’ inspection.” J.A. 104.3 Prior to February
2019, APHIS maintained sole responsibility for fulfilling the Inspection Provision’s
requirement and, up until that time, only a routine inspection was sufficient to satisfy the
Inspection Provision.
2.
In addition to the Inspection Provision, the AWA requires APHIS to memorialize
the findings of the required inspections in publicly available inspection reports (“the
Database Provision”). 7 U.S.C. § 2146a(b)(1). The Database Provision requires APHIS
to “make publicly available via searchable database, in their entirety, without redactions
all final [AWA] inspection reports, including all reports documenting all [AWA] violations
and non-compliances observed by USDA officials.” Id. APHIS must make public “all
reports or other materials documenting any violations and non-compliances observed by
USDA officials for the current year and the preceding three years.” Id. at (b)(3).
B.
In January 2018, the USDA and APHIS solicited public comment on a proposed
inspection policy change. Specifically, notice and comment was solicited on the issue of
whether “a reduction in the frequency of APHIS inspections [would] be a sufficient
incentive for regulated facilities to use third-party programs to support compliance under
the AWA.” J.A. 115. APHIS was seeking to determine if third party inspection and
certification programs could meaningfully substitute for APHIS inspections, thereby
3 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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lightening the APHIS workload without increasing noncompliance with the AWA. APHIS
highlighted the Association for Assessment and Accreditation of Laboratory Animal Care
(“AAALAC”) as one of the third-party inspection and certification programs to which
APHIS was considering deferring.
The AAALAC is a private, nonprofit organization that promotes the humane
treatment of animals in science through a voluntary accreditation program. The AAALAC
provides accreditation to research facilities and consists of “entities invested in the use of
animals in experimentation.” J.A. 149. To obtain AAALAC accreditation, a research
facility must submit an application fee and a description of its animal testing and use
practices. Then, AAALAC representatives conduct a site visit and prepare a report based
on standards derived from an internal AAALAC guidebook recommending an
accreditation status. Once accredited, an organization must pay AAALAC an annual fee
in order to maintain accreditation.
In response to the USDA and APHIS’ comment solicitation on the proposed
inspection policy change, the “vast majority” of “stakeholders on all sides of the issue
expressed strong interest in [APHIS] maintaining full responsibility for inspections and
AWA compliance,” rather than outsourcing that responsibility to third parties. J.A. 191.
Specifically, commentors advised APHIS not to rely on AAALAC accreditation because
of the potential for conflicts of interest due to the AAALAC funding and membership
structures. AAALAC’s membership body, and most of the funding for the organization,
comes from entities engaged in the very animal research which AAALAC regulates. In
response to these comments, APHIS released a public statement, on May 25, 2018,
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“announcing that it [would] not establish new criteria for recognizing third-party inspection
and certification programs when determining the [APHIS’] own inspection frequency
under the Animal Welfare Act.” Id. at 189.
C.
Despite this public announcement, in February 2019, APHIS proceeded to adopt an
inspection policy which relied on AAALAC accreditation to determine the frequency, and
depth of inspections (“Focused Inspection Policy”). The rationale provided for the Focused
Inspection Policy was “to make efficient use of [APHIS’] finite resources.” Appellee’s
Opening Br. at 4. Pursuant to the Focused Inspection Policy, APHIS instructed its
inspectors that only focused inspections should be performed at AAALAC accredited
facilities. To communicate this change in policy to APHIS Animal Care staff, APHIS
disseminated Focused Inspection Frequently Asked Questions (“FAQ”). The FAQ
explained that AAALAC accreditation constituted a dispositive factor in determining
whether an inspection should be focused or routine. J.A. 195 (“If a facility is not AAALAC
accredited, is it eligible for a focused inspection? No.”). In contrast, per the Focused
Inspection Policy, inspectors at AAALAC accredited facilities were ordered to inspect
either animals, facilities, or paperwork on an annual rotating basis rather than inspecting
all three annually. See id. at 200 (“You must rotate your focus for each visit (i.e., the focus
could be on records one year and animals or facilities the next.)”).
After February 2019, per this Focused Inspection Policy, APHIS instructed its
inspectors that they must convert a focused inspection into a routine inspection if certain
levels of noncompliance are found during a focused inspection, even if the facility in
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question meets other criteria relevant under the policy, including AAALAC accreditation.
And for the first time, the USDA allowed the focused inspections to count as the statutorily
required annual inspection of research facilities. Per an email disseminating the FAQ,
APHIS referred to this new inspection practice as “Focused Annual Research Inspections
for AAALAC Accredited Facilities” and told inspectors that the adoption of this new policy
was not to be announced publicly. See id. at 203 (“We are using a low-key approach. There
will be no stakeholder announcement.”); see also id. (“[T]he [FAQ] document is for official
use, internal only.”); id. (“This FAQ will not be in the Inspection Guide.”).
D.
On April 5, 2022, Appellants filed suit against the USDA and APHIS alleging that
the Focused Inspection Policy violated the AWA. In this suit, Appellants highlighted what
they viewed as the secretive manner in which APHIS adopted the Focused Inspection
Policy despite publicly announcing that third party accreditation would not impact
inspection frequency. See J.A. 20 (“[D]espite . . . the agency’s own pronouncement that it
had decided not to implement any such policy, the USDA had nevertheless implemented a
new Inspection Policy under which the agency no longer conducted full inspections of all
facets of research labs that are accredited by AAALAC.” emphasis in original)).
Appellants explained that they only became aware of the existence of the Focused
Inspection Policy as a result of a previous lawsuit Appellants filed against the USDA.
Specifically, in October 2020, Appellants filed suit against the USDA for the failure to
timely comply with a Freedom of Information Act (“FOIA”) request. In response to the
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FOIA lawsuit, the USDA produced responsive records which revealed APHIS’ adoption
of the Focused Inspection Policy.
In the current lawsuit against the USDA and APHIS, Appellants assert that APHIS
“evade[d] its statutory obligation to conduct full annual inspections of research facilities as
required under the [AWA] . . . without providing a reasoned basis for doing so in violation
of the [APA].” J.A. 7 ¶ 1. Accordingly, Appellants allege that the “[Focused] Inspection
Policy is ‘not in accordance with law’ within the meaning of the APA.” J.A. 24 ¶ 69.
Appellants also allege that the adoption of the Focused Inspection Policy was arbitrary and
capricious within the meaning of the APA “in light of all of the limitations that attend
AAALAC accreditation and the fact that AAALAC-accredited facilities have a higher rate
of AWA violations than non-AAALAC facilities.” J.A. 24 ¶ 70 (emphasis in original). As
a result, Appellants request that the Focused Inspection Policy be declared unlawful and
set aside.
The USDA and APHIS moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1), arguing that Appellants lack standing to challenge the adoption
of the Focused Inspection Policy. In the alternative, the USDA and APHIS assert that:
Appellants’ claims are barred by the statute of limitations pursuant to 28 U.S.C. § 2401(a);
Appellants failed to challenge final agency action; the challenged agency conduct is
committed to agency discretion by law; and the complaint fails to state a claim on which
relief can be granted.
In response to the motion to dismiss, Appellants assert that they possess Article III
standing pursuant to an informational standing theory. Appellants claim that the AWA’s
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Database Provision entitles them to inspection reports detailing every instance of AWA
noncompliance. Because the Focused Inspection Policy prevented routine inspections at
AAALAC facilities, Appellants argue APHIS investigators necessarily missed instances of
AWA noncompliance. Therefore, the Focused Inspection Policy prevented Appellants
from receiving the fulsome inspection reports to which they claim entitlement.
On March 21, 2024, the district court granted the motion to dismiss based on
Appellant’s lack of subject matter jurisdiction concluding that Appellants lacked Article
III standing because Appellants’ reading of the AWA was implausible. See J.A. 637
(“[Appellants] argue that they would receive additional information under the statute if the
[Focused] Inspection Policy were not in place, and that the court must accept their view.
The court disagrees that it is so bound.”). The court also dismissed the complaint on the
alternative ground that the adoption of the Focused Inspection Policy did not constitute
final agency action.
Appellants timely appealed.
II.
We review a district court’s dismissal for lack of jurisdiction due to the lack of
Article III standing de novo. City of New York v. U.S. Dep’t of Def., 913 F.3d 423, 429–
430 (4th Cir. 2019).
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III.
To establish standing, a plaintiff must demonstrate: (1) an injury in fact; (2) a
sufficient causal connection between the injury and the conduct complained of; and (3) a
likelihood that the injury will be redressed by a favorable decision. Wikimedia Found. v.
NSA, 857 F.3d 193, 207 (4th Cir. 2017). A plaintiff can establish all three of these elements
based on an informational injury. See Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 166
(4th Cir. 2023) (“[A]n informational injury is sufficiently concrete, particularized, and
actual to qualify for Article III standing to sue.”). An informational injury arises when a
plaintiff is deprived of information which is statutorily required to be disclosed to them.
In this context, “a plaintiff suffers [a] 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[,] and (2) it
suffers, by being denied access to that information, the type of harm Congress sought to
prevent by requiring disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C.
Cir. 2016); see also Dreher v. Experian Info. Solutions Inc., 856 F.3d 337, 345 (4th Cir.
2017) (“[A] constitutionally cognizable informational injury requires that a person lack
access to information to which he is legally entitled and that the denial of that information
creates a ‘real’ harm with an adverse effect.” emphasis in original)).
It is well established that “when assessing a question of standing to sue, we are not
concerned with the merits of the plaintiff’s claim.” Nanni v. Aberdeen Marketplace, Inc.,
878 F.3d 447, 454 (4th Cir. 2017) (citing White Tail Park, Inc. v. Stroube, 413 F.3d 451,
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460 (4th Cir. 2005)). However, the plaintiffs proffered reading of the statute, which they
claim entitles them to information, must be, at minimum, plausible. See Humane Soc’y of
the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015) (evaluating whether the plaintiff has
“made out a plausible claim to Article III standing”); see also Warth v. Seldin, 422 U.S.
490, 500 (1975) (“[T]he standing question in such cases is whether the constitutional or
statutory provision on which the claim rests properly can be understood as granting persons
in the plaintiff’s position a right to judicial relief.” (internal citation omitted)); Laws.
Comm. for 9/11 Inquiry, Inc. v. Wray, 848 F.App’x 428, 430 (D.C. Cir. 2021) (“The
plaintiff’s reading of a statute for informational standing purposes must at least be
plausible.”). Therefore, to establish standing in an informational injury context, a plaintiff
must demonstrate a plausible interpretation of a statute that entitles them to the specific
information they seek. See Friends of Animals, 828 F.3d at 992 (informational injury not
sufficiently alleged where statutory provision could not be read to require disclosure
plaintiffs sought); see also Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 619
(D.C. Cir. 2006) (informational injury sufficiently alleged where plaintiff offered “at the
least a colorable reading of the statute” which entitled them to sought after information).
Further, it is not enough for a plaintiff to establish that a statute contains a broad disclosure
provision or requires the disclosure of some information generally. Instead, a plaintiff must
demonstrate “a legal right to the information in question,” meaning a plausible statutory
entitlement to the specific information they seek. Salt Inst. v. Leavitt, 440 F.3d 156, 159
(4th Cir. 2006).
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The crux of the current dispute, then, is whether Appellants have plausibly
demonstrated that the AWA entitles them to inspection reports detailing every instance of
AWA noncompliance. Because the Database Provision of the AWA does not plausibly
dictate the substance of the publicly required inspection reports, Appellants have failed to
demonstrate a legal right to the specific information they seek.
Appellants argue that the AWA entitles them to inspection reports detailing every
single instance of AWA noncompliance. To assert a statutory entitlement to these
comprehensive inspection reports, Appellants rely on two separate provisions of the AWA,
read in tandem. First, Appellants rely on the Database Provision of 7 U.S.C. § 2146a(b)(1),
which reads:
The Animal and Plant Health Inspection Service shall, notwithstanding any other provision of law:
(b) hereafter, make publicly available via searchable database, in their entirety without redactions except signatures, the following records:
(1) all final Animal Welfare Act inspection reports, including all reports documenting all Animal Welfare Act violations and non- compliances observed by USDA officials and all animal inventories for the current year and the preceding three years (emphasis supplied);
Second, Appellants rely on the Inspection Provision § 2146(a), which reads in relevant
part:
The Secretary shall make such investigations or inspections as he deems necessary to determine whether any [covered entity] has violated or is violating any provision of this chapter or any regulation
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or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale.
The Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviations from the standards promulgated under this chapter, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected.
Appellants’ conception of these statutes is that the Inspection Provision requires
APHIS to conduct annual investigations in order to uncover every instance of AWA
noncompliance. See Appellants’ Opening Br. at 19 (“The AWA envisions those annual
inspections would capture all AWA noncompliances.”). Therefore, Appellants argue that
any inspection policy which fails to identify all AWA noncompliance violates the
Inspection Provision. Next, Appellants read the Database Provision’s language that
inspection reports must document “all [AWA] violations observed by USDA officials” to
require inspection reports that document every AWA violation observed by investigators.
7 U.S.C. § 2146a(b)(1). And then Appellants claim that because APHIS investigators must
observe all AWA violations, their resulting inspection reports must likewise document all
AWA violations, which must then be disclosed. Therefore, according to Appellants, any
inspection policy that results in the failure to document every single instance of AWA
noncompliance violates not only the Inspection Provision but also the Database Provision.
Here, because the Focused Inspection Policy prevents APHIS from conducting
routine inspections annually, Appellants argue that investigators must be missing instances
of AWA noncompliance. “Thus, [Appellants] allege the [Focused] Inspection Policy—
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and its allowance of the USDA to avoid documentation of all AWA noncompliances and
animals at the facility, . . . deprives [Appellants] of information required to be made
public.” Appellants’ Opening Br. at 19.
The USDA responds that Appellants’ view of the AWA is implausible. The USDA
argues that no conception of either the Inspection Provision or the Database Provision
could plausibly require every single instance of AWA noncompliance to be observed and
documented. Pursuant to the USDA’s view of the Database Provision, Appellants are not
statutorily entitled to inspection reports detailing all violations of the AWA. Instead, the
USDA argues, the Database Provision imposes only a requirement that APHIS maintain a
publicly available database of inspection reports but says nothing about the content of those
reports.
The USDA argues that Appellants seek to enforce the substantive requirements of
the Inspection Provision by bootstrapping them to their expansive reading of the
information entitlement of the Database Provision. But, the USDA argues, even if the
Inspection Provision does require inspectors to observe every AWA noncompliance, that
provision cannot be read to impose a substantive requirement as to the content of the
inspection reports in the separate Database Provision.
Appellants’ interpretation of the AWA as requiring publicly available inspection
reports which detail every single instance of AWA noncompliance is implausible. To
determine if Appellants have alleged a plausible statutory entitlement to the specific
information they seek, we look to the Database Provision to see what exactly it requires to
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be disclosed. See Dreher v. Experian Info. Solutions Inc., 856 F.3d 337, 345 (4th Cir.
2017) (evaluating which “sources of information” the Fair Credit Reporting Act required
to be disclosed to determine the presence of informational injury). Here, the Database
Provision requires APHIS to make public “all final AWA inspection reports” and “all
animal inventories for the current year and the preceding three years.” 7 U.S.C.
§ 2146a(b)(1). These reports must be “publicly available via searchable database” and be
published “in their entirety” and “without redactions.” Id. at (b). The statute also requires
“all reports or other materials documenting any violations and non-compliances observed
by USDA officials” and “all final [AWA] research facility annual reports” to be made
public. Id. at (b)(3)–(4). Importantly, the Database Provision says nothing about the
content of the publicly available inspection reports.
Appellants do not allege that the USDA and APHIS are failing to compose or
publish final inspection reports publicly. Instead, Appellants merely wish for different,
more thorough, inspection reports to be prepared and published. However, nothing in the
Database Provision, which is the only provision which entitles Appellants to any
information, imposes that requirement.
In an attempt to avoid this reality, Appellants rely on the requirements imposed by
the Inspection Provision.
The District of Columbia Circuit considered, and rejected, this same theory in Am.
Soc’y for Prevention of Cruelty to Animals v. Feld Entertainment Inc., 659 F.3d 13 (D.C.
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Cir. 2011).4 There, the Animal Protection Institute (“API”) sued Feld Entertainment Inc.
(“Feld”), which owned the largest collection of endangered Asian elephants, alleging that
Feld’s practice of using bull hooks and tethering to control its elephants violated Section 9
of the Endangered Species Act (“ESA”).5 Section 9 makes it unlawful to “take” any
endangered species within the United States. The ESA defines to “take” as “to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or an attempt to engage in
any such conduct.” 16 U.S.C. § 1532(19). However, pursuant to ESA section 10, the
Secretary of Agriculture may issue a permit for a take otherwise prohibited provided he
first gives public notice and an opportunity to comment on the permit application. 16
U.S.C. § 1538(a)(1)(B), (D).
Feld argued that API lacked standing to challenge whether its treatment of elephants
constituted a “take” pursuant to section 9. In response, API asserted informational
standing, not under section 9, but pursuant to the public disclosure provision, section 10(c),
of the ESA. Section 10(c) requires public disclosure of information contained in permit
4 See also Bensman v. U.S. Forest Serv., 408 F.3d 945, 957 (7th Cir. 2005) (rejecting the appellants theory that the Appeals Reform Act’s procedural rights imbued them with an informational right when violated because it was “too attenuated.”); Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1259 (9th Cir. 2010) (“The Appeals Reform Act grants the public a right to process and participation. Even though these rights necessarily, involve the dissemination of information, they are not thereby tantamount to a right to information per se.” (cleaned up) (emphasis in original)). 5 A bullhook is a “two- to three-foot rod with a metal point and hook mounted on one end” used to guide and control the elephants. Feld Ent., 659 F.3d at 17. Tethering refers to the practice of “tethering the Asian elephants with chains when they are not performing and when they are traveling by train.” Id. (cleaned up).
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applications for a permissible “take.” Specifically, a party who applies for a permit must
provide specified information to the Fish and Wildlife Service which must make that
information available to the public. Recognizing that section 9 did not impose any public
disclosure requirements, API sought to tie its challenge to Feld’s treatment of elephants to
the only ESA provision which entitled them to information -- the public disclosure
requirement of section 10(c).
In Feld, API argued that sections 9 and 10(c) were so interrelated that section 9
controlled the public disclosure provision of section 10(c), despite not explicitly
authorizing the disclosure of information. According to API, because Feld’s treatment of
elephants constituted a “take” prohibited by section 9, the company could not lawfully
engage in bullhooking and tethering the elephants without first applying for, and obtaining,
a permit pursuant to section 10. This permit application would then be subject to public
disclosure. Therefore, because Feld had not filed a permit application, which API theorized
they were required to do, API argued it was being denied information to which it was
entitled pursuant to its understanding of the ESA.
The Feld court rejected API’s informational standing theory, explaining that API’s
principal disagreement stemmed from a dispute about section 9 in the first instance -
- whether Feld’s treatment of the elephants constituted a “take” -- rather than about a lack
of information which Feld was required to disclose. The court explained that API would
only have standing to bring an informational injury suit pursuant to section 10 if “Feld
refused to disclose information in its permit application that API believed the statute
required [to be disclosed], or if the Fish and Wildlife Service refused to make public the
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information it received.” Id. The Feld court further noted that API’s requested remedy
was a ceasing of the alleged abusive practices, rather than the dissemination of the sought
after information. Therefore, because nothing in section 9 entitled API to any information,
the court held that the plaintiffs failed to establish informational standing.
Similarly, in Friends of Animals v. Jewell, the District of Columbia Circuit again
rejected an effort to bootstrap a substantive disagreement with agency policy to a purported
informational harm. 828 F.3d 989 (D.C. Cir. 2016). In that case, Friends of Animals, an
animal rights organization, sued the USDA pursuant to the ESA alleging that the Secretary
had violated section 4 of the ESA. Section 4 of the ESA empowers the Secretary of the
Interior (“Interior Secretary”) to designate certain species as endangered. The ESA also
contains a provision allowing “any interested person to petition the Secretary to add a
species or remove it from the endangered or threatened species list.” Id. at 990. Any
petition to list or de-list a species then triggers two mandatory deadlines. The first deadline
requires the Interior Secretary to make a finding as to the petition’s validity within 90 days
of initial receipt of the petition. Second, if the Interior Secretary finds the petition valid,
then within 12 months of initial receipt of the petition, the Interior Secretary 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. The
Interior Secretary is then required to post the 12 month finding in the Federal Register.
Importantly, the ESA also permits “any person to bring suit against the [Interior] Secretary
alleging that he has failed to perform a non-discretionary act or duty required by section
4.” Id. at 991.
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On September 27, 2013, Friends of Animals filed two listing petitions requesting
that the Interior Secretary list the spider tortoise and the flat-tailed tortoise as either
threatened or endangered. This filing triggered the 90 day validity determination.
However, the Interior Secretary did not make the validity finding within the required 90
day period. Twelve months after the filing of the initial listing petition, in September 2014,
the Interior Secretary had still not made a finding as to the listing action. Therefore, Friends
of Animals filed an intent to sue letter. In December 2014, the Secretary sent Friends of
Animals a letter stating that it did not plan to issue the required 12 month finding for both
listing petitions until fiscal year 2017. Friends of Animals then filed a complaint in district
court, alleging that the Secretary had violated Section 4 of the ESA by not timely issuing
findings within 12 months in response to the listing petitions.
To demonstrate harm, Friends of Animals asserted that it had suffered an
informational injury and therefore possessed Article III standing. To support this theory,
Friends of Animals asserted that the Interior Secretary’s failure to comply with the 12
month deadline deprived them of the information they otherwise would have obtained from
the ESA’s disclosure provision. Significantly, however, that disclosure provision required
the disclosure of information in the Federal Register only after the Secretary had released
the 12 month finding.
The District of Columbia Circuit Court explained that the 12 month listing provision
deadline of section 4 did not entitle Friends of Animals to the requested information. The
court explained, “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
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deadline provision that by its terms does not require the public disclosure of information.”
Friends of Animals, 828 F.3d at 992. Therefore, because the Friends of Animals complaint
sought to have the court order compliance with the deadline requirement and not the
disclosure requirement of the ESA, the court held that an informational injury had not been
alleged. This was true despite the alleged interconnectedness of the provisions and the
downstream consequences of disclosure that would result from compliance with the
deadline provision. Therefore, “because Friends of Animals [sought] to enforce a deadline
requirement that does not obligate the Secretary to disclose information” they did not
sufficiently establish Article III standing. Id. at 994–95.
E.
Here, we likewise reject Appellants’ attempt to recast a dispute in connection with
the Focused Inspection Policy as an informational harm. Appellants are receiving the
inspection reports to which the AWA’s Database Provision entitles them. They are not
entitled to more.
Appellants contend that, absent the Focused Inspection Policy, APHIS “would
necessarily be collecting more information that would have to be reported to the public
about whether research facilities are complying with all AWA standards—precisely the
kind of injury the Supreme Court upheld in Federal Election Commission v. Akins, 524
U.S. 11 (1998).” Appellants’ Opening Br. at 21. In Akins, a group of voters sued the
Federal Election Commission (“FEC”) over its determination that the American Israel
Public Affairs Committee (“AIPAC”) was not a “political committee” as defined by the
Federal Election Campaign Act of 1971 (“FECA”). 524 U.S. at 16. The FECA “imposes
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extensive recordkeeping and disclosure requirements upon groups that fall within the
[FECA’s] designation of a political committee.” Id. at 14 (internal quotation marks
omitted). Because AIPAC was not designated a political committee, it was not required to
make these disclosures. The FECA provided that “any person who believes a violation of
this Act has occurred, may file a complaint with the [FEC].” Id. at 19. The FECA further
provided that “any party aggrieved by an order of the [FEC] dismissing a complaint filed
by such party may file a petition in district court seeking review of that dismissal.” Id. In
Akins, the respondents, a group of voters, filed an administrative complaint based on the
failure of the FEC to designate AIPAC as a political committee and sought review of that
complaint’s dismissal in district court.
The respondents alleged that pursuant to the FECA, AIPAC was a political
committee and should be designated as such. The respondents alleged that this incorrect
designation caused an informational injury because they could not obtain the disclosure
information from AIPAC that would otherwise result from a political committee
designation. The FEC argued that respondents lacked standing to challenge the FEC’s
political committee designation because the respondents alleged only a generalized
grievance in the designation. The Supreme Court disagreed, holding that the FECA’s
designation challenge provisions explicitly sought to address “the failure to obtain relevant
information” from a designation decision. Akins, 524 U.S. at 20. The Court explained,
“the ‘injury in fact’ that respondents have suffered consists of their inability to obtain
information . . . that on respondents’ view of the law, the statute requires that AIPAC make
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public.” Id. at 21. Therefore, the respondents’ injury was sufficiently concrete and
particular to meet the requirements of Article III standing.
Appellants attempt to analogize Akins to the case at hand arguing that Akins
demonstrates a viable injury exists in the “conveyance of less accurate or fulsome
information.” Appellants’ Opening Br. at 21. But, “in relying on Akins, Appellants
confuse two distinct standing inquiries: the concreteness of the alleged injury and the status
of the claimed right.” Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006). The question
in Akins was whether the respondents’ challenge to AIPAC’s political designation was too
generalized to confer informational standing. The Akins court concluded that it was not,
holding that an informational injury could be “sufficiently concrete and specific” to confer
standing. Akins did not address whether the FECA granted a right to the information at
issue. And that makes all the difference because that is the question we face here.
Significantly, this case deals with “the antecedent question [of] whether Congress
has granted a legal right to the information in question.” Salt Inst., 440 F.3d at 159. And
Akins is of no moment in determining whether Appellants have plausibly alleged a statutory
entitlement to the information they seek. Here, Appellants must demonstrate that the AWA
Database Provision plausibly entitles them to inspection reports detailing every instance of
AWA noncompliance. Appellants have not done so. Appellants have not plausibly alleged
that the Database Provision requires the inspection reports to contain any specific content,
let alone that it requires a detailing of every instance of AWA noncompliance. Therefore,
Appellants have not plausibly demonstrated a denial of any information to which they are
statutorily entitled. Thus, the Database Provision does not provide Appellants with a
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vehicle to challenge APHIS’ substantive inspection practice, and they have not
demonstrated an informational injury sufficient to confer standing.
IV.
For the foregoing reasons, the district court’s dismissal for lack of subject matter
jurisdiction is
AFFIRMED.