We’ve been on a bit of a standing-to-sue kick in this space lately (here, and here, for instance) and in Washington Legal Foundation’s publishing program (here and here). Article III’s standing requirement, the U.S. Supreme Court has explained, is “built on separation-of-powers principles” and “serves to prevent the judicial process from being used to usurp the powers of the political branches.” From a more practical vantage, a predictable body of law that confines courts’ jurisdiction to lawsuits alleging actual, redressable harms helps to limit defendants’—especially business defendants’—litigation costs by facilitating early dismissal of questionable claims.
Two WLF publications referenced above criticize the U.S. Court of Appeals for the Ninth Circuit for issuing decisions that significantly relax the standing requirement of “injury in fact.” While reaching the right result, another recent Ninth Circuit decision, in the famed “monkey selfie” copyright case, exemplifies how truly off course the court’s standing jurisprudence has wandered.
The facts of the case are now well known (and so compelling that Condé Nast has purchased the movie rights). In 2011, photographer David Slater left his camera on the ground in a Sulawesi, Indonesia animal reserve where he was shooting. Slater discovered later that Naruto, a crested macaque, had grabbed the camera and taken several photos of himself. The photographer (Slater, not Naruto) published the photos in a book.
Outraged that a human was profiting from an animal-taken photo, People for the Ethical Treatment of Animals (PETA) swooped in and filed suit against Slater and his publisher for allegedly infringing the macaque’s rights under the Copyright Act. PETA asserted “next friend” standing to sue on Naruto’s behalf. Courts have allowed such standing only if the allegedly injured party cannot litigate his own cause due to mental incapacity or other disability, and if the next friend has some significant relationship with the party.
When the district court dismissed Naruto’s suit on the grounds that an animal cannot establish statutory standing under the Copyright Act, PETA appealed. Unlike the trial court, the Ninth Circuit panel first addressed the threshold question of general, Article III standing.
Judge Carlos Bea, who wrote for the panel, kicked off the opinion’s Article III analysis with a deserved broadside against PETA’s next-friend-status claim. Not only was PETA’s relationship with Naruto no more “significant that its relationship with any other animal,” but the group’s maneuvers during appeal were decidedly counter to his interest. After oral argument revealed the profound weaknesses in its case, PETA asked the appeals-court panel to dismiss Naruto’s appeal and vacate the district court ruling, asserting that PETA and Slater had reached a settlement.
The court blasted PETA for “abandon[ing] Naruto’s substantive claims” and seemingly “employ[ing] Naruto as an unwitting pawn in its ideological goals.” The opinion continued:
Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.
Because PETA was clearly no friend to Naruto, and also because Congress has never authorized next-friend standing for animals, the court rejected PETA’s standing. That conclusion should have ended the case. But it didn’t.
Judge Bea and one of his fellow panelists (Judge Robreno of the Eastern District of Pennsylvania) concluded that under a 2004 Ninth Circuit ruling, Cetacean Cmty. v. Bush, a non-human represented by competent counsel could maintain Article III standing without a next friend if the non-human suffered an injury in fact. In Cetacean, a self-appointed attorney sought to enjoin the Navy’s use of sonar, which allegedly harmed cetaceans. The court found the cetaceans had general Article III standing, though it affirmed the lower court’s ruling that the sea animals lacked specific standing to sue under federal environmental laws.
The panel’s third member, Judge N. Randy Smith, strongly disagreed with his colleagues’ conclusion that lack of next-friend standing did not dispose of Naruto’s suit. In his partial dissent, he stressed that the plaintiffs’ lawyer in Cetacean did not claim next-friend standing, and the Ninth Circuit did not address it in the ruling. Judge Smith also cited numerous Ninth Circuit decisions that found a lack of next-friend standing as dispositive. He chided the majority opinion for relying upon Cetacean‘s “implied holding” as support for Naruto’s claim of injury.
Judge Bea’s opinion ultimately concluded that though Naruto could assert a redressable harm under Article III, he lacked statutory standing, and thus his claim was ultimately dismissed. One might conclude, therefore, that because the court reached the correct conclusion, Judge Smith was needlessly quarreling over semantics. But as Judge Smith explains in a footnote that consumes his opinion’s final two-and-a-half pages, a decision that endorses Article III standing for a non-human in the absence of a next friend will inspire more abusive lawsuits such as PETA’s, in which the suit’s sponsor advances only a cause and not the interests of an actual client.
The most important point arising from PETA, on which all three judges agreed, is that the Ninth Circuit incorrectly decided Cetacean, so the decision must be reconsidered and overturned. Judge Bea goes so far as to criticize the Cetacean court’s grammar in one lengthy footnote, and then details in another page-long footnote the profound flaws in that panel’s legal reasoning. The very existence of Cetacean essentially guarantees that another opportunity will arise for the circuit to look anew at Article III standing for non-humans.
From a broader perspective, neither the trial nor appellate judges in the Ninth Circuits should welcome the inevitable outcome of a permissive standing jurisprudence: the attraction of more civil litigation than their dockets can bear. Without a course correction on standing, some of those overburdened judges might become anxious to grab their cameras and join that shutterbug macaque, Naruto, on picturesque Sulawesi.
Also published by Forbes.com on WLF’s contributor page.