Animal Legal Defense Fund, Inc. v. Thomas J. Vilsack , Secretary, United States Department of Agriculture , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2023 Decided August 9, 2024
No. 23-5009
ANIMAL LEGAL DEFENSE FUND, I NC.,
APPELLANT
v.
THOMAS J. VILSACK , SECRETARY, U NITED STATES
DEPARTMENT OF AGRICULTURE , ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-01539)
Daniel H. Waltz argued the cause and filed the briefs for
appellant.
Graham W. White, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Gerard J. Sinzdak, Attorney.
Before: SRINIVASAN , Chief Judge, PILLARD and KATSAS ,
Circuit Judges.

-- 1 of 21 --

2
Opinion for the Court filed by Chief Judge SRINIVASAN .
Concurring opinion filed by Circuit Judge KATSAS .
SRINIVASAN , Chief Judge: The Poultry Products
Inspection Act authorizes the Department of Agriculture to
prohibit the use of false or misleading labels on poultry
products. Certain product labels—including those bearing
claims about the conditions in which animals are raised—must
be approved by the Department before hitting grocery store
shelves.
This case concerns the Department’s approval of labels for
Perdue’s “Fresh Line” chicken and turkey products. Although
Fresh Line chickens and turkeys, according to allegations we
accept as true, were raised strictly indoors, the approved
product labels depict birds freely roaming outside a barn. The
Animal Legal Defense Fund asked the Department to reject any
Perdue labels containing that kind of imagery. ALDF claimed
that the imagery misleads consumers into thinking the birds
were raised in pastures, when they in fact spent the entirety of
their lives in overcrowded warehouses. The Department
declined ALDF’s request to disapprove the labels.
ALDF then sued, claiming that the Department violated
the Poultry Products Inspection Act and the Administrative
Procedure Act by approving the Fresh Line labels and by
purportedly adopting a policy of evaluating only the text—not
any graphics—on poultry-product labels. The district court
concluded that ALDF failed to establish standing to challenge
the Department’s actions. We agree.

-- 2 of 21 --

3
I.
A.
Congress enacted the Poultry Products Inspection Act
(PPIA) to ensure that poultry products are “wholesome, not
adulterated, and properly marked, labeled, and packaged.” 21
U.S.C. § 451. The PPIA makes it unlawful to sell poultry
products with “false or misleading” labeling, id. §§ 453(h)(1),
457(c), 458(a)(2), and empowers the Department of
Agriculture to prevent the “use” of “any marking or labeling”
it “has reason to believe . . . is false or misleading in any
particular,” id. § 457(d). The statute defines “labeling” to
include any “written, printed, or graphic matter” on a product’s
“container[] or wrapper[].” Id. § 453(s).
The Department has delegated enforcement of the PPIA’s
labeling requirements to the Food Safety and Inspection
Service (FSIS). By regulation, FSIS must approve certain
labels before a company can use them in the market. 9 C.F.R.
§ 412.1(a). Among the labels requiring pre-market approval
are those including “special statements and claims,” a category
encompassing “claims regarding the raising of animals.” Id.
§ 412.1(c)(3), (e)(1)(iii). To get such a label approved, a
company must submit to FSIS an application that can include
a “sketch” label—that is, a “concept of a label . . . that clearly
reflect[s] and project[s] the final version of the label” that will
appear on grocery shelves. Id. § 412.1(a), (d).
B.
Because the government “challenge[s] standing at the
pleading stage without disputing the facts alleged in the
complaint, ‘we accept the well-pleaded factual allegations as
true and draw all reasonable inferences from those allegations
in the plaintiff’s favor.’” In re U.S. Off. of Pers. Mgmt. Data

-- 3 of 21 --

4
Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (per
curiam) (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015)). Those allegations are as follows.
On several occasions in 2018 and 2019, Perdue
submitted—and FSIS approved—sketch labels for Perdue’s
Fresh Line chicken and turkey products. Each of those labels
contained essentially identical graphics: a cartoon depiction of
chickens or turkeys outside a barn, beneath a full yellow sun,
surrounded by corn and other plants. On some labels—such as
the one below, included in Perdue’s application for Fresh Line
chicken breasts—the birds appear to be pecking away amid the
leafy vegetation, and the label advertises the chickens as having
been “raised cage free.” See Am. Compl. 14 (J.A. 66). FSIS
approved all Fresh Line labels without mandating any changes
to the graphics depicting birds roaming outside a barn. See id.
¶¶ 71–72, 78, 97–98 (J.A. 67, 69, 73).
In January 2020, after FSIS had approved Fresh Line
labels for both chicken and turkey products, the Animal Legal

-- 4 of 21 --

5
Defense Fund (ALDF) asked FSIS to “decline to approve any
Perdue label applications that contain the same or similar
imagery.” Id. ¶¶ 88–90 (J.A. 71). ALDF is a national animal
advocacy organization, and its request to FSIS was part of its
mission to combat the “animal cruelty” and “societal ills
caused by factory farming.” Id. ¶¶ 15–16 (J.A. 56). ALDF
contended that the imagery on Fresh Line labels depicting birds
outside is fundamentally “misleading and contrary to how the
animals were raised.” Id. ¶ 88 (J.A. 71). According to ALDF,
the “bucolic scene” on the labels falsely suggests that the birds
have “access to the outdoors,” when they in reality spend the
entirety of their “short lives” inside what amounts to a
“crowded warehouse.” Id. ¶¶ 63, 79 (J.A. 66, 69).
FSIS rejected ALDF’s request. In a March 2020 letter,
FSIS explained that the labels’ imagery did not “violat[e]”
FSIS’s “labeling requirements” because the “photos, colors,
and graphics used on packaging are not considered labeling
claims and do not make the product label false or misleading.”
Id. ¶¶ 91–93 (J.A. 72). ALDF inferred from FSIS’s letter that
FSIS does not evaluate imagery depicting birds’ living
conditions on any label—from Perdue or any another
company—as part of its pre-market review process. See id.
¶ 94 (J.A. 72). Later that year, Perdue submitted, and FSIS
again approved, labels for more Fresh Line products, each of
which bore essentially identical graphics to those ALDF had
urged FSIS to find misleading.
C.
In June 2021, ALDF sued the Secretary of Agriculture, the
Department, and FSIS. ALDF asserts two claims. First, it
alleges that FSIS’s approvals of Perdue’s Fresh Line labels
violated the PPIA and the APA. Second, ALDF claims that
FSIS has a “pattern and practice” of not reviewing the “graphic

-- 5 of 21 --

6
matter or imagery” on poultry-product labels, including
imagery that “show[s] animals in natural, outdoor settings,”
thereby again ostensibly violating the PPIA and APA. Am.
Compl. ¶¶ 109–18 (J.A. 74–75). The complaint seeks
declaratory and injunctive relief.
The government moved to dismiss both claims on the
ground that ALDF lacks standing to pursue them. Animal
Legal Def. Fund v. Vilsack, 640 F. Supp. 3d 134, 144 (D.D.C.
2022). The district court agreed, finding that ALDF lacks
standing to sue on its own behalf (organizational standing) or
on behalf of its members (associational standing). Id. at 144–
51.
ALDF appeals only the district court’s decision on
associational standing. The court held that ALDF failed to
demonstrate associational standing because the member whom
ALDF asserts was injured—whose name is Marie Mastracco—
does not herself have standing. Id. at 149–51. As the district
court saw it, ALDF’s amended complaint fails to show that
Mastracco suffers a sufficiently concrete injury resulting from
FSIS’s alleged failure to review the graphics on Fresh Line (or
any other) labels. See id. at 150–51. The court dismissed the
complaint without prejudice.
II.
We review the district court’s decision on standing de
novo. Sierra Club v. Jewell, 764 F.3d 1, 4 (D.C. Cir. 2014). A
membership organization like ALDF has associational
standing if “(1) at least one of its members would have
standing to sue in [her] own right, (2) the interests the
association seeks to protect are germane to its purpose, and (3)
neither the claim asserted nor the relief requested requires that
an individual member of the association participate in the
lawsuit.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.

-- 6 of 21 --

7
2002). Here, ALDF’s allegations are plainly germane to its
purpose: one of the group’s “signature focus areas” is
“expos[ing] and reform[ing] factory farming” by “curbing the
misleading labeling and advertising of animal products.” Am.
Compl. ¶ 19 (J.A. 57). And neither ALDF’s claims nor the
relief it seeks requires Mastracco’s personal participation. Our
inquiry thus focuses on the first prong: individual-member
standing.
Mastracco would have standing to sue in her own right if
she suffers (a) an injury-in-fact that is both (b) “fairly traceable
to the challenged action of the defendant” and (c) “likely, as
opposed to merely speculative,” to be “redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 180–81 (2000). The parties dispute
whether ALDF can demonstrate an injury-in-fact. To do so,
ALDF must show that the asserted injury to Mastracco is both
“concrete and particularized” and “actual or imminent, not
conjectural or hypothetical.” Id. at 180.
As the party invoking federal jurisdiction, ALDF bears the
burden of establishing standing. Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014). And because “standing is
not dispensed in gross,” ALDF “must demonstrate standing for
each claim that [it] press[es] and for each form of relief that [it]
seek[s].” TransUnion LLC v. Ramirez, 594 U.S. 413, 431
(2021). ALDF “may seek to make the requisite showing
through affidavits from members,” Food & Water Watch v.
FERC, 28 F.4th 277, 283 (D.C. Cir. 2022), but the group has
not offered an affidavit from Mastracco. As a result, we rely
on the facts asserted in ALDF’s complaint.
A.
We start by summarizing ALDF’s theory of standing and
the facts alleged in support of it. ALDF contends that

-- 7 of 21 --

8
Mastracco was injured after purchasing Fresh Line chicken
breasts and will continue to suffer cognizable injuries as long
as FSIS permits misleading imagery to appear on Fresh Line
and other poultry-product labels. Mastracco purchased Fresh
Line chicken breasts after “relying” on the labels’ “false and
misleading . . . graphic imagery.” Am. Compl. ¶ 30 (J.A. 60).
Before discovering that those labels were, in her view,
misleading, Mastracco had “regularly purchased” Fresh Line
chicken breasts for her “sick and elderly dog.” Id. ¶ 31 (J.A.
60). In deciding which chicken breasts to purchase, Mastracco
“considered factors such as whether the chickens raised for the
meat were healthy, given any chemicals or hormones, and
treated humanely.” Id. (J.A. 60). And she “relied on the
products’ labels to provide information about these [three]
factors.” Id. (J.A. 60). Mastracco “was influenced to
purchase” Fresh Line products by the label’s “claims about
[containing] no antibiotics.” Id. ¶ 32 (J.A. 60). And, “seeing
the graphic imagery, coupled with Perdue’s use of the term
‘cage free,’” she “interpreted the label to mean that the
chickens raised for the products roamed freely on pasture,
under a shining sun.” Id. (J.A. 60). When she “learn[ed]” that
was not the case, she was “surprised and upset.” Id. (J.A. 60).
“FSIS’s unlawful approvals” of the Fresh Line labels, claims
ALDF, caused Mastracco to suffer “consumer harm.” Id. ¶ 33
(J.A. 61).
That consumer harm is allegedly ongoing and imminent
because Mastracco “feels compelled to continue purchasing
whole chicken breasts” for her dog; but as long as FSIS
continues allowing Fresh Line labels to remain on grocery
shelves (claim 1) and maintains its purported policy of not
vetting the imagery on poultry-product labels in its pre-market
approval process (claim 2), Mastracco allegedly “will continue
to suffer a lack of confidence in whether any chicken labels

-- 8 of 21 --

9
convey accurate descriptions of the product’s animal raising
conditions.” Id. ¶ 34 (J.A. 61).
The complaint contends that vacating FSIS’s approvals of
the Fresh Line labels (claim 1) would remedy Mastracco’s
“consumer injur[y]” because it “would remove” the labels from
the grocery shelves, “eliminating the chance that” she “would
continue to purchase chicken products [she] mistakenly
believe[s] come from chickens raised in outdoor, bucolic
conditions.” Id. ¶ 35 (J.A. 61). And requiring FSIS to review
graphic imagery on all poultry-product labels (claim 2) would
remedy Mastracco’s consumer injury by “allow[ing]” her “to
purchase” chicken products “with greater confidence in
knowing how the animals were raised.” Id. ¶ 36 (J.A. 61).
B.
We now turn to assessing whether ALDF has standing to
pursue its first claim, challenging FSIS’s approval of Fresh
Line labels. We hold that the harm Mastracco suffered when
she purchased Fresh Line chicken breasts is sufficiently
concrete and particularized, but ALDF fails to show that the
harm is ongoing or substantially likely to recur.
1.
“Article III standing requires a concrete injury even in the
context of a statutory violation.” Spokeo, Inc. v. Robins, 578
U.S. 330, 341 (2016). As a result, although ALDF alleges that
FSIS has violated the PPIA, the group must still establish that
the injury Mastracco suffers is sufficiently concrete to qualify
as injury-in-fact. “A ‘concrete’ injury must be ‘de facto’; that
is, it must actually exist.” Id. at 340. And the “concrete, de
facto” injury must be a “legally cognizable” one. See id. at 341
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992)).

-- 9 of 21 --

10
ALDF “must demonstrate standing ‘with the manner and
degree of evidence required at the successive stages of the
litigation.’” TransUnion, 594 U.S. at 431 (quoting Lujan, 504
U.S. at 561). At this point in the proceedings, “[o]n review of
a district court’s dismissal of a complaint for lack of subject
matter jurisdiction, . . . [w]e assume the truth of all material
factual allegations in the complaint and ‘construe the complaint
liberally, granting [the] plaintiff the benefit of all inferences
that can be derived from the facts alleged.’” Am. Nat’l Ins. Co.
v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
Applying that standard, we conclude that ALDF’s
complaint sufficiently alleges facts showing that Mastracco
suffered a concrete injury. We read the complaint to allege that
Mastracco’s purchase of Fresh Line products was at least
partially motivated by a desire to buy humanely raised chicken,
and that the label’s graphic depiction of the birds roaming
outside was one reason she chose Fresh Line. In its complaint,
ALDF explains that when making purchasing decisions,
Mastracco “considered . . . whether the chickens raised for the
meat were healthy, given any chemicals or hormones, and
treated humanely,” and she “relied on the products’ labels to
provide information about” all those factors. See Am. Compl.
¶ 31 (J.A. 60). The complaint then goes on to say: “Mastracco
was influenced to purchase Perdue’s Fresh Line chicken
products by label claims about no antibiotics. And seeing the
graphic imagery, coupled with Perdue’s use of the term ‘cage
free,’ [she] interpreted the label to mean that the chickens
raised for the products roamed freely on pasture, under a
shining sun.” Id. ¶ 32 (J.A. 60).
We understand those sentences to describe Mastracco’s
pre-purchase decisionmaking process. And we infer from the
allegations that Mastracco made the decision to purchase Fresh

-- 10 of 21 --

11
Line chicken at least in part because of the label’s graphic
representation of the birds’ living conditions. As a result,
ALDF adequately alleges that Mastracco sought to buy
humanely raised chicken, that she chose Fresh Line in part
because she thought the graphics represented that the chickens
were humanely raised, and that the imagery on the package
thus misled her into making a purchase. That monetary injury
is sufficiently concrete and particularized for purposes of
standing. See TransUnion, 594 U.S. at 425.
2.
While ALDF therefore has established that Mastracco was
once harmed in a concrete and particularized way by FSIS’s
approval of Fresh Line labels, the complaint fails to show that
the harm is ongoing or imminent.
Because ALDF seeks declaratory and injunctive relief—
not damages—“past injuries alone are insufficient to establish
standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir.
2011). Rather, ALDF must show either that Mastracco is
“suffering an ongoing injury” (actual) or that she “faces an
immediate threat of injury” (imminent). Id. To show an
imminent injury, she “must show a ‘substantial probability of
injury’ or ‘a substantial risk that the harm will occur.’” Nat’l
Ass’n of Broadcasters v. FCC, 789 F.3d 165, 181 (D.C. Cir.
2015) (first quoting Sierra Club v. Jewell, 764 F.3d at 7; and
then quoting Susan B. Anthony List, 573 U.S. at 158); see
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409–10, 414 n.5
(2013). Importantly, the alleged future injury cannot be a “self-
inflicted harm” or one “largely of [one’s] own making”—
neither of those “amount[s] to an ‘injury’ cognizable under
Article III.” Nat’l Fam. Plan. & Reprod. Health Ass’n, Inc. v.
Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006).

-- 11 of 21 --

12
ALDF fails to thread that needle. Our analysis of a
plaintiff’s standing “ordinarily depends on the facts as they
exist when the complaint is filed.” Lujan, 504 U.S. at 569 n.4
(emphasis omitted) (quoting Newman-Green, Inc. v. Alfonzo-
Larrain, 490 U.S. 826, 830 (1989)). Here, the entire premise
of the complaint is that Mastracco now knows that Fresh Line
chicken, regardless of the imagery on the label, is raised
indoors. And ALDF fails to explain why it is substantially
likely that Mastracco will continue to purchase Fresh Line
chicken—and rely on the label’s graphics when doing so—now
that she knows that the chickens were raised in a way that “is
anathema to her ethical views.” ALDF Br. 19. Nor does ALDF
explain why Mastracco’s reliance on labels she knows to have
been misleading could be something other than a self-inflicted
injury.
In arguing that it has established a sufficiently imminent,
non-self-inflicted injury, ALDF relies on Davidson v.
Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018). In
Davidson, the Ninth Circuit held that there are certain
circumstances in which “a previously deceived consumer may
have standing to seek an injunction” based on future purchases
of the same product “even though the consumer now knows or
suspects that the advertising was false at the time of the original
purchase.” Id. at 969. The court reasoned in relevant part: “the
threat of future harm may be the consumer’s plausible
allegations that she might purchase the product in the future,
despite the fact it was once marred by false advertising or
labeling, as she may reasonably, but incorrectly, assume the
product was improved.” Id. at 970. Here, ALDF contends that
Mastracco will continue to purchase Fresh Line chicken even
though, last she knew, the chickens were raised indoors and the
labels’ graphics are misleading. See Am. Compl. ¶ 35 (J.A.
61); accord ALDF Reply Br. 6.

-- 12 of 21 --

13
Even if we assume for purposes of argument that a plaintiff
could allege a cognizable injury in the way Davidson lays out,
ALDF fails to do so. To fit within that theory, a previously
deceived plaintiff would need to show that it is likely she will
purchase the product in the future; that her purchase is once
again motivated by the message conveyed by the product’s
label; and that it would be reasonable to assume the labeling
has been cured of its defects. See Davidson, 889 F.3d at 969–
70. But nowhere does ALDF explain why Mastracco would
continue to rely on Fresh Line labels’ graphics to purchase that
product, or why it could be reasonable for her to do so. Instead,
ALDF asserts that, because Mastracco cannot trust any
chicken-product labels in the market, “there are other reasons
why Mastracco may want to purchase Perdue Fresh Line
products again, such as price, convenience, or availability at
her local grocery store.” ALDF Reply Br. 6 (emphasis added).
It would not be enough for purposes of standing, though, if
Mastracco were to purchase Fresh Line chicken for reasons
other than that she reasonably interpreted the labels’ graphics
to mean that the product contains humanely raised chickens: if
she were to buy Fresh Line because it was inexpensive, not
because she wanted humanely raised chicken and believed the
labels’ imagery to so promise, she would not suffer the injury
she complains of.
In sum, ALDF has not shown any substantial likelihood
that Mastracco will suffer non-self-imposed future harm due to
FSIS’s approval of Fresh Line labels. Even if ALDF could do
so pursuant to a different theory of injury, the group has not
advanced one. ALDF thus fails to establish standing to pursue
the first of its two claims.

-- 13 of 21 --

14
C.
We also conclude that ALDF lacks standing to pursue its
second claim, challenging FSIS’s ostensible policy of
declining to evaluate the graphics on any poultry-product
labels. ALDF again stumbles on the actual-or-imminent prong
of the injury-in-fact requirement.
1.
ALDF claims that Mastracco is injured by FSIS’s alleged
policy of not reviewing the imagery on poultry-product labels.
ALDF’s theory is that, while Mastracco is “compelled” to
continue purchasing chicken breasts for her dog, she, as a result
of FSIS’s alleged policy, “suffer[s] a lack of confidence in
whether any chicken labels” are accurate. Am. Compl. ¶ 34
(J.A. 61). That is, because of FSIS’s ostensible policy,
Mastracco cannot purchase chicken and “know[]” with
“confidence . . . how the animals were raised.” See id. ¶ 36
(J.A. 61).
The district court found that injury insufficiently concrete.
Animal Legal Def. Fund, 640 F. Supp. 3d at 150–51. The court
believed that the sole injury supported by the complaint’s
allegations is a psychic harm from disagreement with FSIS’s
alleged policy. See id. We, however, understand the complaint
to allege more than just that narrow type of harm.
ALDF contends that FSIS’s asserted failure to review
graphics on poultry labels prevents her from acting in accord
with her sincerely held ethical beliefs: Mastracco must
continue buying chicken for her dog, but FSIS’s allegedly
unlawful policy prevents her from confidently making
purchasing decisions that she believes are ethical. See Am.
Compl. ¶¶ 34, 36 (J.A. 61). She thus desires information with
which she can make an informed purchasing decision, and the

-- 14 of 21 --

15
“information deficit” created by FSIS’s policy “hinder[s] [her]
ability” to do so. TransUnion, 594 U.S. at 442. That is the sort
of “downstream consequence[]” that can establish Article III
standing. See id. (quoting Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 1004 (11th Cir. 2020)).
Nor would relying on the graphics of non-Fresh Line
products result in a self-inflicted injury. True, a premise of
ALDF’s complaint is that the graphics on all poultry-product
labels are unreliable insofar as they are unreviewed by FSIS.
But ALDF does not allege that Mastracco thus knows all such
graphics are necessarily inaccurate, and there is no cause to so
assume. For all she knows, companies other than Perdue might
accurately portray birds’ living conditions in graphics on
product labels. She accordingly may reasonably believe some
non-Fresh Line graphics are accurate, but she cannot know for
sure because, according to ALDF, FSIS fails to review them as
required. So, while Mastracco’s future reliance on the Fresh
Line labels she knows to be inaccurate would comprise a self-
inflicted injury, see supra Section II.B.2, her reliance on other
unreviewed—but potentially accurate—graphics would not.
The government, though, argues that Mastracco’s reliance
on such graphics would amount to a self-inflicted injury
because she can disregard graphics and instead consult a label’s
written statements. We disagree. It might be reasonable in
some circumstances to expect consumers to “grasp an easy
means for alleviating [their] alleged uncertainty.” See
Gonzales, 468 F.3d at 831. But see Williams v. Gerber Prods.
Co., 552 F.3d 934, 939–40 (9th Cir. 2008); Spann v. Colonial
Vill., Inc., 899 F.2d 24, 28–29 (D.C. Cir. 1990). Here,
however, it is not evident that a label’s written representations
constitute an “easy means” for Mastracco to gain the
information she desires. We do not know the extent to which
poultry-product labels will contain written claims that speak to

-- 15 of 21 --

16
Mastracco’s ethical concerns (and potentially override any
graphic-caused confusion) by addressing whether the birds
were “humanely raised.” A seemingly relevant written claim,
moreover, would not necessarily clarify things for her. Indeed,
the complaint indicates that the words “cage free” on Fresh
Line labels furthered her misperception that the birds “roamed
freely on pasture.” Am. Compl. ¶ 32 (J.A. 60). So even
assuming it might be reasonable to expect a consumer like
Mastracco to turn away from graphic illustrations and look
instead at written statements, we cannot say that her doing so
would “alleviat[e] [her] alleged uncertainty” about the birds’
living conditions. Gonzales, 468 F.3d at 831.
2.
While ALDF alleges a concrete injury, it fails to show that
the injury is ongoing or imminent. For Mastracco to be injured
by FSIS’s failure to review the graphics on poultry-product
labels, she must encounter labels that graphically represent
birds’ living conditions. And because, as we have explained,
ALDF has not shown how Mastracco could be harmed again
by the labels for Fresh Line chicken, the labels causing her
future injury must be ones for competing products. But the
complaint contains no allegation that Perdue or any competitor
currently markets or will market any chicken product bearing
graphics depicting chickens’ living conditions. We then must
accept the possibility that there are no such products. And
because ALDF’s failure to allege the existence of even a single
non-Fresh Line product capable of harming Mastracco means
that any prospective injury is necessarily hypothetical, we need
not decide just how prevalent such non-Fresh Line products
would have to be for Mastracco to face an imminent—that is,
a substantially probable—injury. See Sierra Club v. Jewell,
764 F.3d at 7.

-- 16 of 21 --

17
ALDF errs in contending that its complaint does allege the
existence of non-Fresh Line products that graphically depict
chickens’ living conditions. ALDF focuses on its allegation
that Mastracco “will continue to suffer a lack of confidence in
whether any chicken labels convey accurate descriptions of the
product’s animal raising conditions.” Am. Compl. ¶ 34 (J.A.
61). According to ALDF, “[t]he word ‘any’ includes both
Perdue Fresh Line products and all other chicken products on
the market.” ALDF Reply Br. 6. We are unconvinced. That
sentence of the complaint asserts only that if there are non-
Fresh Line labels that graphically depict birds’ living
conditions, Mastracco would distrust them, just as she distrusts
Fresh Line labels. The sentence does not allege that such non-
Fresh Line labels actually exist in the first place.
ALDF also asserts that “a walk down the meat aisle at any
grocery store shows that brands other than Perdue use imagery
depicting chickens on their chicken breast labels.” Id. at 7.
That may be the case, but to matter, the imagery would need to
make a representation about the birds’ living conditions. And
regardless, it is not enough for ALDF to contend as much in its
briefing in our court: for purposes of establishing standing, we
cannot “credit an assertion in a brief as if it were alleged in a
pleading.” Arpaio v. Obama, 797 F.3d at 21.
Based on the facts ALDF has pleaded in the complaint, we
do not doubt that Mastracco will find herself in the meat section
of her grocer because she needs to purchase chicken breasts for
her dog. Nor do we doubt that she will seek out a humanely
raised product and, if presented with a non-Fresh Line label
that graphically depicts birds’ living conditions, might rely on
that imagery to inform her choice. But the complaint gives no
reason to infer that such a label even exists. In that light, we
cannot say it is possible—much less substantially likely—that

-- 17 of 21 --

18
Mastracco will be injured by FSIS’s ostensible policy. ALDF
thus fails to demonstrate standing for its second claim.
* * * * *
For the foregoing reasons, we affirm the district court’s
dismissal without prejudice of ALDF’s complaint.
So ordered.

-- 18 of 21 --

KATSAS , Circuit Judge, concurring: The claims in this
case target two different actions by the Department of
Agriculture: (1) its approval of an allegedly misleading label
for Perdue Fresh Line poultry products; and (2) its alleged
policy of refusing to review graphics on the labels of all other
poultry products. As the Court explains, the standing of the
Animal Legal Defense Fund to raise these claims depends on
the standing of its member Marie Mastracco. As to the first
claim, her alleged injury to support prospective relief is self-
inflicted; she knows that Fresh Line birds are not raised
outdoors so, going forward, she cannot rely on any contrary
suggestion from the label. As to the second claim, Mastracco’s
alleged injury is speculative; ALDF has not alleged that any
poultry products besides Fresh Line contain graphic images
making factual assertions about the birds’ living conditions.
On these points, the Court’s analysis is spot-on.
I also agree that Mastracco’s alleged injury for the second
claim is concrete enough to support her Article III standing,
though that strikes me as a close question. In my view, a
plaintiff suffers no concrete injury from receiving misleading
information that fails to mislead her. See Trichell v. Midland
Credit Mgmt., Inc., 964 F.3d 990, 1005 (11th Cir. 2020). From
that premise, it would be a small step to conclude that a plaintiff
likewise suffers no concrete injury from receiving unreliable
information on which she does not rely. Nonetheless, I am
ultimately persuaded by the Court’s concreteness analysis.
Mastracco alleges an entitlement to receive from the
government certain information that it has failed to provide—
a stamp of approval for graphic images that the government
deems to be not misleading. And Mastracco further alleges that
this information, if provided, would assist her in deciding
which poultry products to buy for her dog. This seems enough
to establish a concrete informational injury under TransUnion
LLC v. Ramirez, 594 U.S. 413, 441–42 (2021), and Trichell,
964 F.3d at 1004.

-- 19 of 21 --

2
Nonetheless, I remain skeptical about the second claim
even apart from Mastracco’s failure to show imminence. First,
if her alleged injury is an “information deficit” about how birds
are treated, see TransUnion, 594 U.S. at 442; ante at 14–15,
establishing redressability would require an alleged affirmative
entitlement to receive this information, as opposed to just an
entitlement to be free from any misleading information, see 21
U.S.C. § 457(c). And if there were no such affirmative
entitlement, the claim would fail on the merits.
Second, it seems to me doubtful that cartoons like the one
at issue, see ante at 4, make any representation about how birds
are raised. But for standing purposes, what matters is how
Mastracco reacts to these cartoons, and the complaint does
allege that she understands them to make factual
representations. In reviewing a jurisdictional dismissal based
on asserted shortcomings in the complaint itself, we must
assume the truth of that allegation. See Am. Nat’l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). And we must
assume that such cartoons are also misleading to reasonable
viewers—a question that goes only to the merits.
Third, I think Mastracco’s injury would be self-inflicted if
she credited a cartoon over specific factual information on the
label about how birds are raised. See Nat’l Family Planning &
Reprod. Health Ass’n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir.
2006). But the governing statute does not require labels to
include such information. See 21 U.S.C. §§ 453(h), 457. The
complaint does not allege that sellers of poultry products
routinely include it. Nor does the government seriously
contend as much. For these reasons, I agree with the Court that
we cannot, at this stage of the case, deem Mastracco’s alleged
injury to be self-inflicted. Ante at 15–16.

-- 20 of 21 --

3
Fourth, ALDF seeks to challenge USDA’s alleged pattern
of not reviewing any graphic images on the packaging of any
poultry products besides those sold under the Fresh Line brand.
But the Administrative Procedure Act requires plaintiffs to
focus their claims on “discrete” as opposed to “programmatic”
agency actions. Norton v. S. Utah Wilderness All., 542 U.S.
55, 64 (2004); see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
891–94 (1990); Am. Forest Res. Council v. United States, 77
F.4th 787, 804–05 (D.C. Cir. 2023). Here, ALDF’s pattern
claim seems to fall on the programmatic side of that line. But
the government did not raise this objection, which goes to the
APA’s non-jurisdictional requirement of reviewable “agency
action” within the meaning of 5 U.S.C. § 704.
Because I do not regard these observations as inconsistent
with the Court’s opinion, I join it in full.

-- 21 of 21 --