United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2016 Decided June 3, 2016

No. 15-5070

FRIENDS OF ANIMALS,

APPELLANT

v.

SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF 

INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00357)

Michael Ray Harris argued the cause for appellant. With 

him on the briefs was Jennifer E. Barnes.

Robert H. Oakley, Attorney, U.S. Department of Justice, 

argued the cause for federal appellees. With him on the brief 

were John C. Cruden, Assistant Attorney General, and 

Andrew C. Mergen and Matthew Littleton, Attorneys. Nina C. 

Robertson, Attorney, entered an appearance.

Anna M. Seidman, Douglas S. Burdin, and Jeremy E. 

Clare were on the brief for defendant-intervenor-appellee 

Safari Club International.
2

Before: KAVANAUGH, Circuit Judge, and EDWARDS and 

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge 

EDWARDS.

Concurring opinion filed by Senior Circuit Judge

SENTELLE.

EDWARDS, Senior Circuit Judge: Section 9 of the 

Endangered Species Act of 1973 (“Act” or “ESA”), 16 U.S.C. 

§ 1531 et seq., makes it unlawful “for any person subject to 

the jurisdiction of the United States to,” inter alia, “take” any 

endangered species within the United States or “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). Under the Act, “take” means

“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 

or collect, or to attempt to engage in any such conduct.” Id.

§ 1532(19). Section 10 of the Act authorizes the Secretary of 

the Interior, who has delegated his authority to the Fish and 

Wildlife Service (“FWS” or “Service”), to, inter alia, “permit 

. . . any act otherwise prohibited by [Section 9] for scientific 

purposes or to enhance the propagation or survival of the 

affected species.” Id. § 1539(a)(1)(A). Section 10 also 

requires the Secretary to publish notices in the Federal 

Register of all permit applications and make available to the 

public information received as part of any such applications. 

Id. § 1539(c).

In 2005, the Fish and Wildlife Service listed three 

antelope species – the scimitar-horned oryx (Oryx dammah), 

addax (Addax nasomaculatus), and dama gazelle (Gazella 

dama) – as endangered. See Final Rule to List the ScimitarHorned Oryx, Addax, and Dama Gazelle as Endangered 
3

(“Listing Rule”), 70 Fed. Reg. 52,319, 52,319 (Sept. 2, 2005).

On the same day that the Service designated the antelope 

species as endangered, it issued a blanket exemption for 

qualifying domestic entities and individuals – including some 

sport hunting programs – that breed the antelope species in 

captivity. See Exclusion of U.S. Captive-Bred ScimitarHorned Oryx, Addax, and Dama Gazelle from Certain 

Prohibitions (“Captive-Bred Exemption”), 70 Fed. Reg. 

52,310, 52,311, 52,317 (Sept. 2, 2005). Under the CaptiveBred Exemption, the FWS allowed qualified owners of 

domestic, captive-bred antelope to engage in activities 

otherwise prohibited by Section 9 of the ESA without 

applying for individual permits on a case-by-case basis. Id. at 

52,317.

In 2009, the District Court, in an action preceding this 

case, determined that the Captive-Bred Exemption violated 

Section 10(c) of the Act. Friends of Animals v. Salazar

(Antelope I), 626 F. Supp. 2d 102, 115 (D.D.C. 2009). The 

court found “that the text, context, purpose and legislative 

history of the statute make clear that Congress intended 

permits for the enhancement of propagation or survival of an 

endangered species to be issued on a case-by-case basis 

following an application and public consideration of that 

application,” not pursuant to blanket exemptions. Id.

Following this decision, FWS revoked the Captive-Bred 

Exemption. See Removal of the Regulation That Excludes 

U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama 

Gazelle from Certain Prohibitions (“Removal Rule”), 77 Fed. 

Reg. 431, 431 (Jan. 5, 2012).

On January 17, 2014, President Obama signed into law 

the Consolidated Appropriations Act, 2014 (“Appropriations 

Act”). Division G, Title I, Section 127 of the Appropriations 

Act (“Section 127”) provides:
4

Before the end of the 60-day period beginning on the 

date of enactment of this Act, the Secretary of the Interior 

shall reissue the final rule published on September 2, 

2005 (70 Fed. Reg. 52310 et seq.) without regard to any 

other provision of statute or regulation that applies to 

issuance of such rule.

Pub. L. No. 113-76, div. G, tit. I, § 127, 128 Stat. 5, 315-16 

(2014). On March 19, 2014, the Service complied with 

Section 127 and reinstated the Captive-Bred Exemption. See

Reinstatement of the Regulation That Excludes U.S. CaptiveBred Scimitar-Horned Oryx, Addax, and Dama Gazelle from 

Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg. 

15,250, 15,250 (Mar. 19, 2014) (codified at 50 C.F.R. § 

17.21(h)). 

On March 5, 2014, Friends of Animals, an animal 

advocacy organization, brought suit against FWS and the 

Department of the Interior (“Federal Appellees”), alleging 

that the Reinstatement Rule violates the Act and the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and 

that Section 127 violates the United States Constitution. See

Friends of Animals v. Jewell, 82 F. Supp. 3d 265, 267 (D.D.C. 

2015). Safari Club International intervened as a defendant in 

the suit (together with the Federal Appellees, “Appellees”). 

See id. at 270. 

On cross-motions for summary judgment, the District 

Court granted Appellees’ motions for summary judgment and 

denied Friends of Animals’ motion for summary judgment. 

Id. at 279. The District Court found that the Reinstatement 

Rule was not arbitrary or capricious under the APA, id. at 

278-79; that Friends of Animals did not have Article III 

standing to challenge the constitutionality of Section 127, id. 
5

at 278; and that even if Friends of Animals had standing, 

Section 127 is not unconstitutional, id. at 278 n.9. Friends of 

Animals now appeals.

Under FEC v. Akins, 524 U.S. 11 (1998), Friends of 

Animals has informational standing to pursue its claims, so 

there is no jurisdictional impediment to this lawsuit. We reject 

Friends of Animals’ claims on the merits, however. Congress 

acted within constitutional bounds when it passed Section 

127. Therefore, there can be no doubt that the Service was 

fully authorized to reinstate the Captive-Bred Exemption. 

I. BACKGROUND

A. Statutory Background

The stated purpose of the Endangered Species Act is “to 

provide a means whereby the ecosystems upon which 

endangered species and threatened species depend may be 

conserved, to provide a program for the conservation of such 

endangered species and threatened species, and to take such 

steps as may be appropriate to achieve the purposes of the 

treaties and conventions set forth in subsection (a) of this 

section.” 16 U.S.C. § 1531(b). Section 4 of the Act directs the 

Secretary of the Interior, who has delegated his authority to 

FWS, to list species that he determines are “threatened” or 

“endangered” under specified criteria. Id. § 1533. “When a 

species . . . is listed as either ‘threatened’ or ‘endangered’

under the Act, it is then subject to a host of protective 

measures designed to conserve the species.” In re Polar Bear 

Endangered Species Act Listing & Section 4(d) Rule Litig.—

MDL No. 1993, 709 F.3d 1, 2 (D.C. Cir. 2013).

As noted above, Section 9 of the Act makes it unlawful 

“for any person subject to the jurisdiction of the United States
6

to,” inter alia, “take” any endangered species within the 

United States or “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 “harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, or collect, or to attempt 

to engage in any such conduct.” Id. § 1532(19). While the Act

contains specific guidelines when it comes to determining 

whether a species should be listed as endangered, FWS has 

flexibility under the Act in assessing how to conserve a 

species after it has been listed as endangered. Most relevant to 

this case, Section 10 of the Act authorizes the Service to, inter 

alia, “permit . . . any act otherwise prohibited by [Section 9] 

for scientific purposes or to enhance the propagation or 

survival of the affected species.” Id. § 1539(a)(1)(A). 

Section 10(c) of the Act specifies that

[t]he Secretary shall publish notice in the Federal 

Register of each application for an exemption or permit 

which is made under this section. Each notice shall invite 

the submission from interested parties, within thirty days 

after the date of the notice, of written data, views, or 

arguments with respect to the application; except that 

such thirty-day period may be waived by the Secretary in 

an emergency situation where the health or life of an 

endangered animal is threatened and no reasonable

alternative is available to the applicant, but notice of any 

such waiver shall be published by the Secretary in the 

Federal Register within ten days following the issuance 

of the exemption or permit. 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.
7

Id. § 1539(c). Section 10(d) further provides that the 

Secretary may only grant a Section 10 permit if he finds and 

publishes in the Federal Register that the permit was applied 

for in good faith, will not operate to the disadvantage of the 

endangered species, and will be consistent with the purposes 

and policy of the Act. Id. § 1539(d). 

B. Factual and Procedural Background

This case concerns three antelope species – the scimitarhorned oryx (Oryx dammah), addax (Addax nasomaculatus), 

and dama gazelle (Gazella dama) – whose herds have 

dwindled, if not disappeared, from their native environments 

in northern Africa. As of June 2013, “[t]he oryx is believed to 

be extirpated in the wild, the addax numbers fewer than 300, 

and the dama gazelle numbers fewer than 500.” 12-Month 

Findings on Petitions to Delist U.S. Captive Populations of 

the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed. 

Reg. 33,790, 33,791 (June 5, 2013). Despite dwindling wild 

populations, captive populations of the three antelope species 

exist in the United States and other parts of the world. As of 

2013, the Fish and Wildlife Service estimated that there were 

“approximately 4,000 to 5,000 scimitar-horned oryx, 1,500 

addax, and 750 dama gazelle in captivity worldwide.” Id.

FWS has spent more than two decades considering the 

antelope species with input from both commercial and nonprofit groups interested in conserving the species for different 

ends. A detailed account of this regulatory history is set forth 

in Safari Club International v. Jewell, 960 F. Supp. 2d 17, 33-

41 (D.D.C. 2013). Here we provide only a summary of the 

agency’s regulatory efforts that are relevant to the present 

dispute. 
8

In 2005, the Service listed the scimitar-horned oryx, 

addax, and dama gazelle as endangered throughout the world. 

See Listing Rule, 70 Fed. Reg. at 52,319. At the same time, 

the Service issued the Captive-Bred Exemption, which 

authorized activities with respect to these species that were 

otherwise prohibited under Section 9 without individual 

permits. 70 Fed. Reg. at 52,310, 52,317. In other words, with 

respect to U.S. captive-bred herds of the three antelope 

species, the Captive-Bred Exemption provided a blanket 

exemption from these proscriptions of Section 9. The rule 

required persons claiming the benefit of the exemption to 

maintain accurate written records of activities, including 

births, deaths, and transfer of specimens, and to make those 

records accessible to the Fish and Wildlife Service for 

inspection. Captive-Bred Exemption, 70 Fed. Reg. at 52,317.

In 2009, shortly after the Captive-Bred Exemption was 

promulgated, two sets of plaintiffs, including Friends of 

Animals, filed lawsuits against FWS challenging the rule in 

the United States District Court for the Northern District of 

California and in the United States District Court for the 

District of Columbia. The lawsuits were then consolidated to 

be heard in United States District Court for the District of 

Columbia. See Antelope I, 626 F. Supp. 2d 102. After 

reviewing the parties’ competing motions for summary 

judgment, the District Court granted partial summary 

judgment in favor of the plaintiffs. Id. at 120. In finding that 

the Captive-Bred Exemption violated Section 10(c) of the 

Act, the court pointed to the words of the statute that say that

“[t]he Secretary shall publish notice in the Federal Register of 

each application for an exemption or permit which is made 

under this section.” Id. at 115 (alteration in original) (quoting 

16 U.S.C. § 1539(c)). The court then concluded that, “[a]fter 

examining the text, context, purpose and legislative history of 

section 10,” it was clear that “subsection 10(c) requires case-
9

by-case consideration before the FWS may permit otherwise 

prohibited acts to enhance the propagation or survival of 

endangered species.” Id. at 116.

On July 7, 2011, following the court’s decision in 

Antelope I, the Service published a proposed rule to withdraw 

in full the Captive-Bred Exemption. On January 5, 2012, 

FWS issued a final rule removing the Captive-Bred 

Exemption. The rule explained: 

This change to the regulations is in response to a court 

order that found that the rule for these three species

violated section 10(c) of the Act. These three antelope 

species remain listed as endangered under the Act, and a 

person will need to qualify for an exemption or obtain an 

authorization under the current statutory and regulatory 

requirements to conduct any prohibited activities.

Removal Rule, 77 Fed. Reg. at 431.

After FWS issued the proposed rule, but before issuance 

of the final Removal Rule, Safari Club International filed a 

suit in District Court alleging that the Service had violated the 

Act and the APA by including U.S. captive-bred herds of the 

three antelope species in its 2005 Listing Rule. See Safari 

Club Int’l v. Jewell (Antelope II), 960 F. Supp. 2d 17, 23

(D.D.C. 2013). Thereafter, the Exotic Wildlife Association 

filed suit to invalidate and set aside the Removal Rule. See id.

at 23-24. Following consolidation of these actions, the District 

Court upheld the Listing Rule and upheld the Removal Rule 

as a “rational response” to the court’s 2009 decision in 

Antelope I. Id. at 61, 84. The plaintiffs’ appeal to this court in 

Antelope II is being held in abeyance pending resolution of 

the present dispute. 
10

On October 16, 2013, Friends of Animals filed an action 

in the District Court challenging the Service’s administration 

of Section 10(a)(1)(A) permitting for the antelope species, 

and also seeking to invalidate four Section 10 permits 

allowing takes of those species. See Complaint at 30-31, 

Friends of Animals v. Ashe (Antelope III), No. 13-CV-01580 

(D.D.C. Oct. 16, 2013). This case has also been held in 

abeyance pending resolution of the present dispute.

On January 16, 2014, Congress passed – and on January 

17, 2014, President Obama signed into law – Section 127, 

which provides: 

Before the end of the 60-day period beginning on the 

date of enactment of this Act, the Secretary of the Interior 

shall reissue the final rule published on September 2, 

2005 (70 Fed. Reg. 52310 et seq.) without regard to any 

other provision of statute or regulation that applies to 

issuance of such rule.

Pub. L. No. 113-76, div. G, tit. I, § 127, 128 Stat. 5, 315-16 

(2014). On March 19, 2014, the Service complied with 

Section 127 and reinstated the Captive-Bred Exemption. See

Reinstatement Rule, 50 C.F.R. § 17.21(h). Friends of Animals 

filed this action on March 5, 2014, alleging that Section 127 

was an unconstitutional violation of the separation of powers 

between the legislative and judicial branches. See Friends of 

Animals v. Jewell, 82 F. Supp. 3d 265, 273 (D.D.C. 2015). 

After the Service issued the Reinstatement Rule, Friends of 

Animals amended its complaint to add a claim that the 

Reinstatement Rule was invalid under the APA because it 

violated Section 10(c) of the Act. See id. at 267 & n.1.

The District Court resolved the case on cross-motions for 

summary judgment, denying Friends of Animals’ motion and 
11

granting judgment for Appellees. Id. at 279. The court 

followed the holding of Antelope I that Section 10(c) of the 

Act grants Friends of Animals a right to information the 

deprivation of which confers Article III standing for its APA 

claim. Id. at 271-73. However, the court ruled that Friends of 

Animals lacked standing to challenge the constitutionality of 

Section 127 because its “informational rights are not 

implicated by its constitutional challenge.” Id. at 273.

On the merits, the District Court found no merit in

Friends of Animals’ APA claim that the Service’s 

Reinstatement Rule violated Section 10(c) of the Act. Id. at 

278-79. The court held that, as a consequence of Section 127, 

“Section 10(c) does not apply to the Reinstatement Rule and 

the FWS’s actions in promulgating the rule were compelled 

by the statute [and] consistent with congressional intent.” Id.

at 279. The District Court further noted that, even if Friends 

of Animals had standing to challenge the constitutionality of 

Section 127, that claim would fail because Section 127 had 

amended existing law prospectively and had not retroactively 

changed the result in any particular case. Id. at 278 n.9 

(“Section 127 does not establish what the law was at a prior 

time or require its application to a case already adjudicated. 

Rather, Section 127 directs the FWS to issue the 

Reinstatement Rule, thus establishing what the law will be 

prospectively.”). This appeal followed.

II. ANALYSIS

We review the District Court’s decision on standing de 

novo. In re Endangered Species Act Section 4 Deadline 

Litig.—MDL No. 2165, 704 F.3d 972, 976 (D.C. Cir. 2013). 

Likewise, we review the District Court’s grant of Appellees’ 

motions for summary judgment and denial of Friends of 
12

Animals’ motion for summary judgment de novo. Defs. of 

Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).

A. Standing 

Friends of Animals is “a membership organization that 

seeks to free animals from cruelty and exploitation around the 

world, and to promote a respectful view of non-human, free 

living and domestic animals.” Appellant’s Br. at 1. Friends of 

Animals “engages in a variety of advocacy programs in 

support of these goals,” and informs its members of its 

advocacy work through its magazine, website, and other 

published reports. Id. In addition, Friends of Animals 

regularly participates in the Act’s Section 10 permitting 

process in order to protect threatened and endangered species 

under the Act, including the three antelope species. Id. On the 

record before us, and under controlling precedent, it is clear 

that Friends of Animals has standing to pursue both its 

statutory and constitutional claims.

“[T]he requirement that a claimant have ‘standing is an 

essential and unchanging part of the case-or-controversy 

requirement of Article III.’” Davis v. FEC, 554 U.S. 724, 733 

(2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 

(1992)). The “irreducible constitutional minimum of standing 

contains three elements.” Lujan, 504 U.S. at 560. First, the 

claimant must have suffered an “injury in fact” – that is, an 

invasion of a legally protected interest which is “concrete and 

particularized” and “actual or imminent.” Id. (citations

omitted). Second, there must be a causal connection between 

the claimant’s injury and the subject of his complaint such 

that the injury is “fairly traceable to the challenged action of 

the defendant.” Id. (alterations and citation omitted). Third, it 

must be “likely” that the injury will be “redressed by a 

favorable decision.” Id. at 561 (citation omitted). “The party 
13

invoking federal jurisdiction bears the burden of establishing 

these elements.” Id.

The Supreme Court explained in FEC v. Akins 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 

Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 

(1989) (holding 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, this circuit has 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); 

see also Am. Soc’y for Prevention of Cruelty to Animals v. 

Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011)

(explaining that “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”). 

Friends of Animals contends that Section 10(c) of the Act 

requires the Secretary of the Interior to disclose information 

about permitted takes of captive members of the three 

antelope species. According to Friends of Animals, Section 

127 and the Reinstatement Rule deny Friends of Animals this 

information, which Friends of Animals otherwise has a 

statutory right to obtain. Friends of Animals thus maintains 

that it has informational standing to pursue both its 

constitutional and statutory claims. We agree. 
14

In pertinent part, Section 10(c) of the Act provides:

The Secretary shall publish notice in the Federal 

Register of each application for an exemption or permit

which is made under this section. Each notice shall invite 

the submission from interested parties, within thirty days 

after the date of the notice, of written data, views, or 

arguments with respect to the application . . . . 

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.

16 U.S.C. § 1539(c) (emphases added). Under the language of 

Section 10(c), the Secretary of the Interior must disclose 

information it receives in connection with any Section 10 

permit. See id.; see also Gerber v. Norton, 294 F.3d 173, 179

(D.C. Cir. 2002) (finding that the Fish and Wildlife Service 

violated Section 10(c) of the Act by failing to make public 

information it had received as part of a permit application). 

Thus, Section 10(c) clearly creates a right to information upon 

which a claim of informational standing may be predicated. 

In enacting Section 127, Congress compelled FWS to 

issue the Reinstatement Rule, which eliminates the 

applicability of individual Section 10 permitting requirements 

that would otherwise have been necessary to engage in 

prohibited activities that enhance the propagation or survival 

of the three antelope species. As a result, Friends of Animals 

is denied information relating to permitted takes of U.S. 

captive-bred herds of the three antelope species. Friends of 

Animals regularly participates in and requests such

information as part of the Section 10 permitting process, and 

was in the process of doing so when Section 127 was enacted. 

Friends of Animals claims that the information provided by 

Section 10(c) helps it meaningfully participate in the Act’s 
15

permitting process, as well as engage in related advocacy 

efforts to protect the three antelope species. Given Friends of 

Animals’ goals and organizational activities, there is no 

reason to doubt Friends of Animals’ standing here.

Citing this court’s decision in Feld Entertainment, 

Appellees argue that Section 10(c) cannot provide Friends of 

Animals with a basis for informational standing. In Feld 

Entertainment, we rejected the plaintiff’s attempt to claim 

informational standing to bring suit under the Act’s citizen 

suit provision against Feld Entertainment, Inc., which 

operates the Ringling Brothers and Barnum & Bailey Circus,

for allegedly “taking” circus elephants in violation of Section 

9 of the Act. 659 F.3d at 17, 22-24. Importantly, we noted that 

even if the plaintiff’s underlying claim was correct – i.e., that 

the defendant’s conduct constituted a prohibited “taking” 

under Section 9 of the Act – “nothing in section 9, even under 

[the plaintiff’s] view, would entitle plaintiffs to any 

information.” Id. at 23. We acknowledged that if the 

defendant sought to pursue the disputed conduct, “it would 

have to seek a section 10 permit from the Fish and Wildlife 

Service, and section 10(c) would then entitle [the plaintiffs] to 

obtain the information received by the Service as part of [the 

defendant’s] permit application.” Id. But because Section 9, 

the statutory basis for the plaintiff’s suit, provided the plaintiff 

with no right to information, we found informational standing 

lacking. Id. at 22-24.

The present case is clearly distinguishable from Feld 

Entertainment. Friends of Animals’ statutory and 

constitutional claims directly implicate Section 10’s 

disclosure requirement, which as explained, provides Friends 

of Animals with a right to information. Having been denied 

such information, Friends of Animals has suffered a concrete 

and particularized “injury in fact” under Akins. Because 
16

Friends of Animals’ injury is “fairly traceable to the 

challenged action” of the Federal Appellees, and the alleged

injury will be “redressed by a favorable decision” by this 

court, Lujan, 504 U.S. at 560-61 (alterations and citations 

omitted), Friends of Animals has standing to pursue its 

claims.

B. Friends of Animals’ Constitutional Claim

The United States Constitution “enumerates and 

separates the powers of the three branches of Government in 

Articles I, II, and III, and it is this ‘very structure’ of the 

Constitution that exemplifies the concept of separation of 

powers.” Miller v. French, 530 U.S. 327, 341 (2000) (quoting 

INS v. Chadha, 462 U.S. 919, 946 (1983)). “Article III of the 

Constitution establishes an independent Judiciary, a Third 

Branch of Government with the ‘province and duty . . . to say 

what the law is’ in particular cases and controversies.” Bank 

Markazi v. Peterson, 136 S. Ct. 1310, 1322 (2016) (ellipsis in 

original) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 

137, 177 (1803). “While the boundaries between the three 

branches are not ‘“hermetically” sealed,’ the Constitution 

prohibits one branch from encroaching on the central 

prerogatives of another.” Miller, 530 U.S. at 341-42 (citations 

omitted). Friends of Animals argues that Section 127 is 

unconstitutional because it infringes upon the judicial power 

of Article III courts in violation of the separation of powers 

doctrine. In support of its claim, Friends of Animals relies on 

two decisions of the Supreme Court: Plaut v. Spendthrift 

Farm, Inc., 514 U.S. 211 (1995), and United States v. Klein, 

80 U.S. (13 Wall.) 128 (1871).

In Plaut, several shareholders filed a securities fraud 

action seeking damages for alleged violations that occurred in 

1983 and 1984. Plaut, 514 U.S. at 213. While the lawsuit was 
17

pending, however, the Supreme Court held in Lampf, Pleva, 

Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 

(1991), that such action had to be commenced within one year 

after the discovery of the facts constituting the violation and 

within three years after the violation. Lampf, 501 U.S. at 364. 

Applying the statute of limitations announced in Lampf, the 

district court in Plaut dismissed the shareholders’ complaint 

with prejudice as untimely filed, and the court’s judgment 

became final 30 days later. Plaut, 514 U.S. at 214.

Responding to Lampf, and after the dismissal order in Plaut

became final, Congress enacted a statute purporting to 

reinstate lawsuits dismissed under the statute of limitations 

announced in Lampf that would have been timely under the 

prior limitations period. See id. at 214-15. 

The Supreme Court in Plaut held that Congress’ revival 

of the dismissed actions was an unconstitutional intrusion into 

matters within the authority of the judicial branch. Id. at 225. 

The Court explained that the legislation at issue was 

“retroactive legislation, that is, legislation that prescribes what 

the law was at an earlier time, when the act whose effect is 

controlled by the legislation occurred . . . . When retroactive 

legislation requires its own application in a case already 

finally adjudicated, it does no more and no less than ‘reverse a 

determination once made, in a particular case.’ Our decisions

. . . have uniformly provided fair warning that such an act 

exceeds the powers of Congress.” Id. (citations omitted).

Because a “judicial decision becomes the last word of the 

judicial department with regard to a particular case or 

controversy, . . . Congress may not declare by retroactive 

legislation that the law applicable to that very case was 

something other than what the courts said it was.” Id. at 227. 

Friends of Animals contends that Section 127 “simply 

reverses [the court’s] final judgment in Antelope I and must 
18

be found unconstitutional” under Plaut. Appellant’s Br. at 33. 

We disagree. Section 127 is not retroactive legislation 

because it does not establish what the law was at an earlier 

time. Likewise, Section 127 does not apply to a case already 

decided and does not overturn the court’s determination in 

Antelope I – it simply alters the prospective effect of Section 

10 of the Act by exempting U.S. captive-bred herds of the 

three antelope species from the Act’s Section 9 prohibitions 

going forward. 

Congress undoubtedly may change the precedential value 

of a decision by passing prospective legislation, which is what 

Congress chose to do when it enacted Section 127. Cf.

Bellsouth Corp. v. FCC, 162 F.3d 678, 692 (D.C. Cir. 1998) 

(explaining that in Plaut, the Supreme Court drew a 

distinction between “final judgments without prospective 

effects, which could not be constitutionally revised through 

legislation, and final judgments with prospective effects, 

whose effects could constitutionally be so revised” (citation 

omitted)). Indeed, Friends of Animals concedes that, if 

Congress was “unhappy with the result in Antelope I, 

Congress could . . . cho[o]se to amend Section 10 to allow for 

the promulgation of a new rule that might allow for a broad 

take exemption.” Appellant’s Br. at 35. By directing FWS to 

reissue the Captive-Bred Exemption “without regard to any 

other provision of statute or regulation,” Appropriations Act, 

div. G, tit. I, § 127, that is what Congress did here. 

In Klein, the plaintiff sued the Government for the 

proceeds of property sold during the Civil War. The suit was 

filed under a statute granting such a cause of action to 

noncombatant confederate landowners who could show proof 

of loyalty to the federal government. 80 U.S. (13 Wall.) at

136, 139. The Supreme Court, in an earlier case, had decided 

that receipt of a Presidential pardon was sufficient proof of 
19

“loyalty” under this law. United States v. Padelford, 76 U.S. 

(9 Wall.) 531, 543 (1869). The Court of Claims in Klein

followed that decision and awarded recovery to the plaintiff.

Klein, 80 U.S. (13 Wall.) at 143. While the Government’s 

appeal was pending, Congress passed a statute providing that 

no pardon could be admitted as proof of loyalty to the federal 

government and that acceptance of a pardon, under most 

circumstances, was conclusive evidence of disloyalty. Id. at 

142-44. The statute at issue in Klein thus directed the Court of 

Claims and Supreme Court to find that a claimant who had 

accepted a presidential pardon was in fact disloyal and, 

therefore, not entitled to land sale proceeds. Id. The newly 

enacted statute further directed that on proof of such a pardon 

or its acceptance, the Court of Claims and Supreme Court 

should dismiss the suit for want of jurisdiction. Id.

On review, the Supreme Court in Klein struck down the 

statute, explaining that Congress had no authority to “impair[] 

the effect of a pardon,” for the Constitution entrusted the 

pardon power “[t]o the executive alone.” Id. at 147. Lacking 

authority to impair the pardon power of the Executive, 

Congress could not “direct[] the court to be instrumental to 

that end.” Id. at 148. In other words, the statute in Klein

infringed on the judicial power because it attempted to direct 

the result without altering the legal standards governing the 

effect of a pardon – standards Congress was powerless to 

prescribe. See id. at 146-48. 

In striking down the statute in Klein, the Supreme Court 

also expressed doubt about Congress’ authority to “prescribe 

rules of decisions to the Judicial Department of the 

government in cases pending before it.” Id. at 146. The Court 

noted:
20

It is evident . . . that the denial of jurisdiction to this 

court, as well as to the Court of Claims, is founded solely 

on the application of a rule of decision, in causes 

pending, prescribed by Congress. The court has 

jurisdiction of the cause to a given point; but when it 

ascertains that a certain state of things exists, its 

jurisdiction is to cease and it is required to dismiss the 

cause for want of jurisdiction. 

It seems to us that this is not an exercise of the 

acknowledged power of Congress to make exceptions 

and prescribe regulations to the appellate power.

Id.

Friends of Animals argues that under Klein, “Section 127 

. . . unconstitutionally interferes in two pending cases before 

Article III courts, seeking to direct the outcomes in those 

cases by ensuring that they are deemed moot.” Appellant’s 

Br. at 35 (referring to Antelope II and Antelope III). 

According to Friends of Animals, Klein “stand[s] for the 

proposition that Congress cannot direct the outcome of a 

particular pending case by instructing the courts how to 

interpret and apply the existing law to the specific pending 

claims.” Id. at 37.

This court has noted that “Klein’s exact meaning is far 

from clear.” Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d 

1092, 1096 (D.C. Cir. 2001). Similarly, the Supreme Court 

has observed that “Klein has been called ‘a deeply puzzling 

decision.’” Bank Markazi, 136 S. Ct. at 1323 (citation 

omitted). The Supreme Court has explained, however, that 

“[w]hatever the precise scope of Klein, . . . later decisions 

have made clear that its prohibition does not take hold when 

Congress ‘amend[s] applicable law.’” Plaut, 514 U.S. at 218
21

(second alteration in original) (quoting Robertson v. Seattle 

Audubon Soc’y, 503 U.S. 429, 441 (1992)). Friends of 

Animals acknowledges, as it must, this limitation on the reach 

of Klein. See Appellant’s Br. at 37. Indeed, in Bank Markazi 

v. Peterson, the Supreme Court, just this term, reaffirmed that 

Klein is so limited. See Bank Markazi, 136 S. Ct. at 1323 

(“More recent decisions, however, have made it clear that 

Klein does not inhibit Congress from ‘amend[ing] applicable 

law.’” (alteration in original) (quoting Robertson, 503 U.S. at 

441)). 

On the record before us, we have no trouble in 

concluding that Section 127 amended the applicable law and 

thus does not run afoul of Klein. Section 127 directed the 

Secretary of the Interior to reissue the Captive-Bred 

Exemption “without regard to any other provision of statute 

or regulation that applies to issuance of such rule.”

Appropriations Act, div. G, tit. I, § 127. By issuing this 

legislative directive, Congress made it clear that, with respect 

to U.S. captive-bred herds of the three antelope species, 

individual permits are no longer required to engage in 

activities otherwise prohibited by Section 9 of the Act.

Although the three antelope species remain endangered and 

subject to certain requirements under the Act, Congress acted 

within its constitutional authority in amending the scope of 

Section 10. See Nat’l Coal. to Save Our Mall, 269 F.3d at 

1094, 1097 (statute at issue, which applied “[n]otwithstanding 

any other provision of law,” did not violate Klein because it 

“amend[ed] the applicable substantive law”); see also All. for 

the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 (9th Cir. 

2012) (dismissing the appellants’ challenge under Klein

where Congress had amended the law by “direct[ing] the 

agency to issue the rule ‘without regard to any other provision 

of statute or regulation that applies to issuance of such rule’”). 
22

Seeking to avoid this conclusion, Friends of Animals 

argues that “Section 127 makes no change, not even the most 

minor addition or subtraction, to the ESA or to the legal status 

of the Three Antelope Species under the ESA.” Appellant’s 

Br. at 39. Friends of Animals maintains that “the take 

prohibitions of Section 9, and the requirements in Section 10 

that must be met to obtain a limited exemption from the take 

prohibition remain exactly as they were before Section 127 

was enacted.” Id. (emphasis omitted). These contentions are 

meritless, for Section 127 obviously changes the reach of 

Sections 9 and 10 of the Act. Following the passage of 

Section 127 and issuance of the Reinstatement Rule, the 

requirements in Section 10 that otherwise must be met to 

obtain an exemption from Section 9’s take prohibitions no 

longer apply to U.S. Captive-Bred herds of the three antelope 

species, even though they apply to other endangered species. 

The Congressional enactment easily passes muster under 

established law.

C. Friends of Animals’ Statutory Claims

Finally, Friends of Animals contends that the 

Reinstatement Rule should be set aside under the APA

because it violates Section 10(c) of the Act for the reasons 

articulated by the United States District Court for the District 

of Columbia in Antelope I. Appellant’s Br. at 49. This 

argument is nothing more than a variation on Friends of 

Animals’ claim that Section 127 did not amend the applicable 

law. As we have already discussed, Section 127 did amend 

the applicable law by directing the Secretary of the Interior to 

reissue the Captive-Bred Exemption “without regard to any 

other provision of statute or regulation that applies to issuance 

of such rule.” Appropriations Act, div. G, tit. I, § 127. The 

Secretary fulfilled Congress’ directive by issuing the 
23

Reinstatement Rule, which is in compliance with the Act and 

does not violate the APA. 

III. CONCLUSION

For the foregoing reasons, the judgment of the District 

Court is affirmed.

So ordered.
SENTELLE, Senior Circuit Judge, concurring: I write

separately not because I have any deep disagreement with the

majority—indeed, I wholly embrace the majority’s conclusion

and nearly all of its language—but only to express a single

misgiving. As the majority makes plain, “the requirement that

a claimant have ‘standing is an essential and unchanging part of

the case-or-controversy requirement of Article III.’” Maj. Op. at

12 (quoting Davis v. FEC, 554 U.S. 724, 733 (2008) (other

citations and internal quotation marks omitted). I am not

convinced that appellant has carried that burden with respect to

its constitutional, separation-of-powers claim. Rather, as the

district court reasoned, the breach of right for which the Friends

of Animals seek redress is informational. See Friends of

Animals v. Jewell, 82 F. Supp. 3d 265, 273 (D.D.C. 2015). The

alleged constitutional violation does not cause that breach. I

therefore would prefer that we affirmed the district court as to

the constitutional claim on the basis relied upon by that court. 

That is, that plaintiffs have not established standing. Plaintiffs

have not alleged that the unconstitutional act caused them harm

or that its redress can be had in this lawsuit.

That said, nonetheless I join entirely the disposition of the

majority. I agree that the majority’s analysis of the

constitutional claim is legally correct. I concur entirely with

everything else in the majority’s opinion.