Animal Legal Defense Fund, Inc. v. Glickman , 130 F.3d 464 ( 1997 )

Opinion for the court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge WALD.

SENTELLE, Circuit Judge:

An animal welfare group and four individuals sued the United States Department of Agriculture and some of its officials (collectively, “USDA” or “the Department”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. (1988). These plaintiffs argued that a USDA regulation concerning the treatment of primates failed to comply with the requirements of the governing statute, the Animal Welfare Act (“AWA” or “the Act”), and asked the district court to set the regulation aside. After concluding that the plaintiffs had standing to sue, the district court entered judgment invalidating the challenged regulation and ordered USDA to promulgate a new regulation in compliance with the Act. See Animal Legal Defense Fund, Inc. v. Glickman, 943 F.Supp. 44 (D.D.C.1996). USDA appealed.

After reviewing the record, we conclude that all of the plaintiffs (now appellees) lack constitutional standing to pursue their claims. Accordingly, we vacate the judgment of the district court and remand with instructions to dismiss the case for want of jurisdiction.

I.

This appeal is but the latest chapter in the ongoing saga of Animal Legal Defense Fund, Inc.’s (“ALDF”) effort to enlist the courts in its campaign to influence USDA’s administration of the Animal Welfare Act, 7 U.S.C. § 2131 et seq. Congress enacted the Act in 1966 to ensure the humane care and treatment of various animals used in research or for exhibition or kept as pets. 7 U.S.C. § 2131. Pursuant to a 1985 amendment, the Act requires the Secretary of USDA (“Secretary”) to “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). Such standards must include “minimum requirements ... for a physical environment adequate to promote the psychological well-being of primates.” 7 U.S.C. § 2143(a)(2)(B).

In 1991, pursuant to section 2143(a), the Secretary promulgated rules on the handling, care and treatment of primates. See 9 C.F.R. § 3.75 et seq. The rule at issue in this appeal requires regulated entities to “develop, document, and follow an appropriate plan for environment enhancement adequate to promote the psychological well-being of nonhuman primates.” 9 C.F.R. § 3.81. According to that rule, such a plan “must be in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian,” and must address several specified topics, including “[sjoeial grouping” and “[ejnvi-ronmental enrichment.” Id.

In 1991, ALDF, along with three individuals and two other organizations, filed a lawsuit challenging several USDA regulations promulgated under the AWA, including section 3.81. The plaintiffs’ principal argument was that, by permitting the regulated entities to develop their own environmental enhancement plans, the regulations.failed to include “minimum requirements” as mandated by the AWA, see 7 U.S.C. § 2143(a)(2), and instead impermissibly delegated promulgation of these requirements to the regulated entities. The district court ruled for the plaintiffs, and set aside the challenged regulations. See Animal Legal Defense Fund v. Secretary of Agriculture, 813 F.Supp. 882 (D.D.C.1993). We reversed, holding that all of the plaintiffs lacked standing to challenge the regulations. Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 722 (D.C.Cir.1994) (“ALDF II”).¹

ALDF mounted a second challenge to section 3.81 in 1996. This time, it was joined by a different group of individual co-plaintiffs: Roseann Circelli, Mary Eagan, Marc Jur-nove, and Audrey Rahn. Ruling on the plaintiffs’ motion for summary judgment, the district court again invalidated section 3.81, and ordered the Secretary to promulgate a new regulation in compliance with the “minimum requirements” mandate of the AWA.

II.

Under Article III of the Constitution, the “judicial power” of the United States is restricted to the resolution of “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. In order to limit the docket of federal courts to “disputes ... which are traditionally thought to be capable of resolution through the judicial process” and to restrict federal courts “to a role consistent with a system of separated powers,” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968)) (internal quotation marks omitted), our Article III jurisprudence has identified a cluster of doctrines, “ ‘standing[,j mootness, ripeness, political question, and the like,’ by which we test the fitness of controversies for judicial resolution.” Louisiana Environmental Action Network v. Browner, 87 F.3d 1379, 1382 (D.C.Cir.1996) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)) (additional citations and internal punctuation omitted).

In furtherance of the limitations of Article III, the standing doctrine requires would-be federal litigants to demonstrate an (1) injury in fact; (2) which is caused by, or is fairly traceable to, the alleged unlawful conduct; and (3) which is likely to be redressed by a favorable decision of the court. Valley Forge, 454 U.S. at 471-72, 102 S.Ct. at 757-59; see also Bennett v. Spear, — U.S. -, -, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). The party invoking federal jurisdiction bears the burden of establishing these elements, FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990), and may not pursue its claims before the federal judiciary if it fails to demonstrate any one of them. Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 662-63 (D.C.Cir.1996) (in banc). Neither the individual appellees nor the Animal Legal Defense Fund have successfully borne that burden. We consider first the individual appellees Circelli, Jurnove and Eagan.² We assume their factual allegations to be true for purposes of this appeal. See Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2136-37.

A.

Roseann Circelli, Marc Jurnove and Mary Eagan have viewed primates housed in isolation at local zoos. Circelli saw an orangutan who could neither see nor hear other primates, and who sat quietly by himself in a corner. Circelli Affidavit ¶ 8. Jurnove saw a large male chimpanzee who was kept in isolation from other primates, and whose hands and feet were covered with scars and cuts. Jurnove Affidavit ¶ 8. Eagan has seen primates housed in isolation as well, “including one baby baboon and another primate named Charlie.” Eagan Affidavit ¶ 4.

These appellees, all of whom enjoy visiting animals in captivity, say they have suffered aesthetic and recreational injuries resulting from their observation of these primates. Under some circumstances, interference with the observation and study of animals may constitute injury in fact for standing purposes.³ Humane Soc’y of the U.S. v. Babbitt, 46 F.3d 93, 97 (D.C.Cir.1995). It is not apparent, however, that these appellees have met their burden of demonstrating a cognizable injury in fact. “[G]eneral emotional ‘harm,’ no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes.” Id. at 98. It is part of the price of living in society, perhaps especially in a free society, that an individual will observe conduct that he or she dislikes. “[T]he psychological consequence presumably produced by observation of conduct with which one disagrees ... is not an injury sufficient to confer standing under Art. Ill.... ” Valley Forge, 454 U.S. at 485, 102 S.Ct. at 765. Even assuming that appellees have suffered sufficient injury, we conclude that they nonetheless lack constitutional standing because their claimed injuries are not “fairly traeea-ble” to the Secretary’s alleged failure to promulgate “minimum requirements” as mandated by the AWA, and because such injuries are not likely to be redressed by the relief sought in this case. See Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136-37; Florida Audubon Soc’y, 94 F.3d at 663-64.

B.

In analyzing the “causation” element of constitutional standing, we ask whether it is “substantially probable” that the challenged acts of the defendant — as opposed to the acts of an independent third party — caused a plaintiffs particularized injury. Florida Audubon Soc’y, 94 F.3d at 663 (citations omitted). Our “redressability” inquiry asks whether the relief sought by a plaintiff is likely to alleviate the plaintiffs injury. Id. at 663-64. Causation, then, focuses on whether a particular party is appropriately before the court; redressability focuses on whether the court is the appropriate forum for the parties’ dispute. Id. at 664.

When a plaintiff asserts injuries attributed to “ ‘the government’s allegedly unlawful regulation (or lack of regulation) of someone else,’ ” the causation and redressa-bility elements of standing analysis “require more exacting scrutiny.” Freedom Republicans, Inc. v. Federal Election Comm’n, 13 F.3d 412, 416 (D.C.Cir.1994) (Wald, J.) (emphasis in original) (quoting Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. at 2137). Under these circumstances, standing is not necessarily precluded, but the “indirectness of injury ‘may make it substantially more difficult to meet the minimum requirements of Art. Ill: to establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.’ ” Id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 44-45, 96 S.Ct. 1917, 1927-28, 48 L.Ed.2d 450 (1976)). A plaintiff who claims to have been injured by the government’s regulation of a third party must “adduce facts showing that the unfettered choices made by independent actors have been or will be made in such manner as to produce causation and permit redressability of injury.” Id. at 417 (quoting Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. at 2137) (internal quotation marks and brackets omitted).

In this case, the zoos at which the primates were housed acted independently; no laws or regulations compelled them to keep the primates in the conditions witnessed by appellees. Granted, when the government takes action that has a “determinative or coercive effect” on a third party, the government may be said to have “caused” injuries which are directly attributable to the third party. Bennett, — U.S. at -, 117 S.Ct. at 1164. But we are aware of no cases — and appellees have provided us with none — in which the government was said to have caused a constitutional injury by failing to issue regulations that would have forbidden third parties from engaging in conduct that caused a plaintiff’s injury. The attenuated connection between appellees’ claimed injuries and the government’s alleged failure to promulgate “minimum requirements” does not present a sufficient “ ‘causal nexus between the agency action and the asserted injury ” to establish causation. Humane Soc’y, 46 F.3d at 100 (quoting Freedom Republicans, 13 F.3d at 418).

Our dissenting colleague is convinced that Jurnove’s affidavit establishes standing because it alleges that the inhumane conditions at the Long Island Game Farm are permitted by USDA regulations. Dissent at 474. We disagree, first of all, that a regulation which permits third parties to engage in offensive behavior, but does not require them to do so, may fairly be said to cause an injury resulting from the behavior of the third parties; such a regulation would not have the “determinative or coercive effect” on the third parties which would render the alleged injuries fairly traceable to governmental action. See Bennett, — U.S. at -, 117 S.Ct. at 1164.

Furthermore, we disagree with the dissent’s interpretation of Jurnove’s affidavit. To be sure, as the dissent emphasizes, the affidavit states that USDA inspectors found the Long Island Game Farm to.be in compliance with existing regulations on several occasions. See Dissent at 474-75. However, the gravamen of Jurnove’s affidavit is that USDA failed to enforce existing regulations, not that the offensive behavior was permitted by them. Jurnove states this conclusion explicitly: he says that the USDA inspection report finding the Game Farm to be “in compliance with all standards” was “incorrect,” Jurnove Affidavit ¶¶ 18-19, and adds that “[he] knew [that the appalling conditions in which the animals were housed] violated the minimum requirements of the Animal Welfare Act.” Id. ¶ 17. The dissent ignores these allegations, which we are bound to accept as true. See Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2136-37.

We turn now to redressability. Our conclusion that appellees’ alleged injuries are not “fairly traceable” to the Seeretarys actions leads us to the related conclusion that appellees’ injuries are not likely to be redressed by compelling the Secretary to promulgate new regulations. See National Wildlife Fed’n v. Hodel, 839 F.2d 694, 705 (D.C.Cir.1988) (“causation” and “redressability” tend to merge in cases where plaintiffs seek cessation of allegedly illegal conduct). Appellees have not shown that it is “likely” that the relief they want (compelling the Secretary to promulgate new regulations) will alleviate their claimed aesthetic and recreational injuries. See Florida Audubon Soc’y, 94 F.3d at 663-64. In any event, appellees were not entirely clear as to how any such alleviation would be accomplished. For example, our review of their affidavits reveals that all of the appellees claim to suffer persisting, painful memories of animal mistreatment. See Jurnove Affidavit ¶ 43 (“I continue to think about [the animals I have witnessed at the Long Island Game Farm], and experience the assault on my senses from remembering their plight.”); Circelli Affidavit ¶ 17 (“I continue to think about the animals I observed at the Scotch Plains Zoo in May, 1995, and I continue to be haunted by the horrible conditions in which I saw them living.”); Eagan Affidavit ¶ 4 (“I ... continue to carry the memories of these inhumanely treated animals with me every day, which depresses me and causes me distress.”). Appellees do not claim, much less demonstrate, that their painful memories are likely to be obliterated by compelling the Secretary to promulgate new legal regulations.

Appellees’ claims of redressability are further undercut, given that the district court, whether directly or through appellants, has no power to compel the exhibitors to continue maintaining primates at all, let alone in a manner aesthetically pleasing to appellees. By way of comparison, in Fulani v. Brady, 935 F.2d 1324 (D.C.Cir.1991), we rejected the claimed standing of a would-be competitor in the presidential debates who challenged the tax-exempt status of the sponsoring organization. We did so noting that if we ordered the Treasury to revoke that status, the sponsoring committee might decline to hold the debates at all, a possibility that would not enable the plaintiff to participate as she sought. Id at 1329. Similarly, if a court ordered the Department to issue different regulations concerning primates, for all we know, the exhibitors might cease keeping primates.

We hold that appellees Jurnove, Circelli and Eagan have failed to carry their burden of alleging facts that would demonstrate that the choices of the animal exhibitors “have been or will be made in such manner as to produce causation and permit redressability of injury.” Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. at 2137. Thus, these appellees lack constitutional standing to raise then-claims, and we lack power to resolve them.

III.

Having determined that the individual appellees have no standing to bring the present action, we must consider the standing of the Animal Legal Defense Fund. Organizational plaintiffs may assert standing of two sorts. First, an organization may have standing on its own behalf when its rights and immunities as an entity have suffered recognizable injury, redressable in the action at bar. Second, “under proper conditions,” it may “sue on behalf of its members asserting the members’ individual rights.” Common Cause v. Federal Election Comm’n, 108 F.3d 413, 417 (D.C.Cir.1997) (citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211-12, 45 L.Ed.2d 343 (1975)). Either way, an organizational plaintiff still must meet the constitutional standing requirements set forth above.

In the present action, ALDF claims standing for injury to its own rights, rather than standing derived from its members. Its claimed injury is an alleged violation of its procedural rights in USDA’s adoption of section 3.81 governing the “plans” for psychological enrichment of primates. Under the final version of the rule, the regulated keepers of primates need not file such plans with USDA, where they would be subject to disclosure under the Freedom of Information Act, 5 U.S.C. § 552, but only must maintain such plans on their own premises, making them available to USDA “upon request.” ALDF, noting that the “upon request” language appeared for the first time in the final rule, complains that neither it nor any other party had the opportunity to submit comments on the language to USDA before its adoption. ALDF argues that the Secretary’s failure to provide public notice of the “upon request” language constitutes a violation of the notice and comment procedures of the Administrative Procedure Act. See 5 U.S.C. § 553. According to ALDF, this violation gave rise to a purely procedural injury: the inability to participate in rulemaking as provided by the APA. Indeed, ALDF specifically disclaims any informational injury resulting from a violation of the Animal Welfare Act; it insists instead that its injury “is caused by the agency’s violation of the APA.”

Both we and the Supreme Court have had recent occasion to analyze the standing requirements applicable to an assertion of procedural injury. We concluded that “a plaintiff may have standing to challenge the failure of an agency to abide by a procedural requirement only if that requirement was ‘designed to protect some threatened concrete interest’ of the plaintiff.” Florida Audubon Soc’y, 94 F.3d at 664 (quoting Defenders of Wildlife, 504 U.S. at 573 n. 8, 112 S.Ct. at 2143, n. 8). Therefore, “[t]he mere violation- of a procedural requirement ... does not permit any and all persons to sue to enforce the requirement.” Id. Rather, a party claiming to be injured by a procedural violation must show that the violation is likely to harm the party in a specific and individualized way. Id.; see also Defenders of Wildlife, 504 U.S. at 573 n. 8, 112 S.Ct. at 2143, n. 8 (holding that a plaintiff may enforce procedural rights “so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing”).

Here, ALDF claims that the Secretary has failed to comply with the notice and comment procedures of the APA. This abstract, generalized “injury” is not sufficient to afford standing. ALDF may have been deprived of the opportunity to submit comments on the “upon request” language of section 3.81. But this predicament is shared by many others, indeed by the world at large. ALDF has failed to make the case that it has suffered a concrete injury as distinguished from the abstract procedural right to submit comments to USDA. Its articulated “injury” amounts to no more than a “ ‘general interest [in the alleged procedural violation] common to all members of the public.’ ” Florida Audubon Soc’y, 94 F.3d at 664 (quoting Ex Parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1 (1937)). Thus, it lacks constitutional standing to pursue the asserted violation in federal court.

IV.

We conclude that none of the appellees have standing to challenge section 3.81. Accordingly, we vacate the judgment of the district court, and remand the case with directions to dismiss for want of jurisdiction.

There are two additional appeals before us: (i) ALDF’s appeal of the district court’s order permitting the National Association of Biomedical Research (“NABR”) to intervene in the case for purposes of appealing the district court’s invalidation of section 3.81; and (2) NABR’s appeal from the ruling of the district court that invalidated section 3.81. Given our decision to vacate the judgment of the district court, we order these separate appeals dismissed as moot.

1 . We shall refer to this case as ALDF II to distinguish it from an earlier case with the same name, which involved a challenge to a different USDA regulation. See Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496 (D.C.Cir.1994) (“ALDF I").

2 . The district court did not rule that plaintiff Audrey Rahn had standing to challenge section 3.81. See Animal Legal Defense Fund, Inc., 943 F.Supp. at 54-57. Thus, we shall not address her claims here.

3 . As our dissenting colleague acknowledges, see Dissent at 473 n.l, all of the Supreme Court cases recognizing such an injury have done so when the challenged conduct threatens to diminish the overall supply of an animal species available for observation or study. Since this case does not involve allegations of such conduct, none of the cases cited by the dissent compels the conclusion that the individual appellees have articulated a cognizable constitutional injury.