People for the Ethical Treatment of Animals, Inc. v. National Institute of Mental Health et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS, INC., *
*
Plaintiff, *
*
v. * Civil Action No. 8:25-cv-00736-PX
*
*
NATIONAL INSTITUTE OF MENTAL
HEALTH et al., *
*
Defendants.
******
MEMORANDUM OPINION
Pending is Defendants National Institute of Mental Health (“NIMH”), National Institutes
of Health (“NIH”), Acting Director of NIMH Andrea Beckel Mitchener and Acting Director of
NIH Jayanta Bhattacharya (collectively, “Defendants”)’ motion to dismiss Plaintiff People for the
Ethical Treatment of Animals, Inc. (“PETA”)’s Complaint. ECF No. 21.1 The Court finds no
need for a hearing. See D. Md. Loc. R. 105.6. For the following reasons, the Court GRANTS the
motion.
I. Background
According to PETA, the Elisabeth Murray lab, under the aegis of Defendants, conducts
“torturous and useless” experiments on rhesus macaques (“macaques”) related to improving
human mental health treatments. ECF No. 1 ¶¶ 29–53. This suit, however, does not challenge
Defendants’ treatment of the macaques. Despite the Complaint’s broadside attack on animal
1 Defendants Andrea Beckel Mitchener and Jayanta Bhattacharya are automatically substituted as parties to this action,
replacing Defendants Shelli Avenoli and Matthew J. Memoli, respectively. See Fed. R. Civ. P. 25(d).
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research generally, PETA brings a narrow claim that Defendants have denied PETA’s August 2024
request for installation of a 24-7 audio visual live feed (the “live feed”) of the macaques who are
currently housed at the laboratory, in violation of PETA’s First and Fifth Amendment rights. Id.
¶ 8; ECF No. 1-2 at 3. PETA’s August 2024 request demanded that the live feed “contain audio
to hear the macaques’ vocalizations and clear video sufficient to see the macaques’ body postures,
gestures, facial expressions, and other observable communications while in their cages, in the
presence of laboratory staff, when being collected and prepared for experimentation, and while
being experimented on.” ECF No. 1-2 at 3. PETA’s singular justification for demanding the live
feed is its purported First Amendment right to “listen” to the macaques’ “speech” and
“communications.” ECF No. 1 ¶¶ 8, 103–18.
Defendants denied PETA’s live feed request, explaining that a live feed does not exist in
the laboratory, and any video that does exist is “closed-circuit television, which is not capable of
being transmitted to third parties.” ECF No. 1-3 at 2–3. Defendants also acknowledged that they
gather experiment-related footage limited to “active observational experimentation” for note-
taking purposes, and that the laboratory usually does not retain the footage for future use. Id. at 3.
Defendants thus suggested that PETA submit a Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 et seq., request for any existing audiovisual recordings of the macaques. Id.
PETA now maintains that FOIA will not “satisfy PETA’s First Amendment right to receive
communications directly” from the macaques, whom PETA avers are “willing speakers” through
the macaques’ various communicative behaviors. ECF No. 1 ¶ 62. From this, PETA contends
that it maintains a First Amendment right as a “listener” of the macaques to a live feed, id. ¶¶ 103–
110, and companion Fifth Amendment “liberty and property interests” in the same “open channel
of communication” between it and the macaques, id. ¶¶ 111–115. PETA asks this Court to declare
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Defendants’ denial of the live feed a constitutional violation of the First and Fifth Amendments,
to order Defendants to produce such footage, and to enjoin Defendants from violating PETA’s
constitutional rights in the future. Id. at 35–36.
Defendants move to dismiss the Complaint on jurisdictional and sufficiency grounds
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 21. Because the
Court dismisses the claims for lack of jurisdiction, as more fully detailed below, it cannot reach
the merits of the claims. Thus, the Court confines its analysis to why this Court cannot reach the
claims for want of jurisdiction.
II. Standard of Review
Jurisdictional challenges must be resolved in advance of any merits analysis. See Fed. R.
Civ. P. 12(b)(1); United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009); Jones
v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). The party who asserts jurisdiction
bears the burden of establishing its existence. See Robb Evans & Assocs., LLC v. Holibaugh, 609
F.3d 359, 362 (4th Cir. 2010); accord Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). The
Court considers the complaint facts, viewed most favorably to the plaintiff, see Lovern, 190 F.3d
at 654; Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005), and may consider extrinsic
evidence to ascertain whether it has jurisdiction to hear the case. Richmond, Fredericksburg &
Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
III. Analysis
Defendants make two jurisdictional arguments: first, that PETA lacks Article III standing
because it has not suffered an injury from the denial of the live feed; and second, that Defendants,
as federal agencies, enjoy sovereign immunity from suit. ECF No. 21 at 15–25. Because “both of
the infirmities identified . . . go to the question of jurisdiction[,] . . . this court can turn to either
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issue alone to resolve this case.” City of New York v. United States Dep’t of Def., 913 F.3d 423,
430 (4th Cir. 2019). The Court first addresses whether sovereign immunity protects Defendants
from suit.
A. Sovereign Immunity
The United States and its agencies enjoy sovereign immunity from suit absent consent to
be sued. Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005). It may give such consent, or
waive its immunity, through enacting legislation. See Kerns v. United States, 585 F.3d 187, 193–
94 (4th Cir. 2009). Waiver is “strictly construed” in favor of the United States. Lane v. Pena, 518
U.S. 187, 192 (1996). Accordingly, Defendants, as federal agencies, enjoy “a presumption of
immunity from the present lawsuit.” Robinson v. United States Dep’t of Educ., 917 F.3d 799, 801
(4th Cir. 2019). See also Food Town Stores, Inc. v. E.E.O.C., 708 F.2d 920, 922 (4th Cir. 1983).
The same immunity also extends to agency officers when suit is “nominally against an officer is
in fact against the sovereign if the decree would operate against the latter.” State of Hawaii v.
Gordon, 373 U.S. 57, 58 (1963) (per curiam).
Defendants make the straightforward argument that PETA has failed to demonstrate any
waiver of immunity arising from the alleged First and Fifth Amendment violations. ECF No. 21
at 15–18. PETA singularly responds that even though it has not brought a formal claim under the
Administrative Procedure Act (“APA”), the Court may nonetheless construe congressional waiver
of suit for any challenges to final agency action as waiving immunity for the constitutional claims
here. ECF No. 23 at 29 & 33. See 5 U.S.C. § 702.
The Court assumes the validity of PETA’s contention that Congress can waive immunity
for constitutional challenges even if not expressly brought as APA violations. Standage v.
Braithwaite, 526 F. Supp. 3d 56, 86 (D. Md. 2021) (citing Michigan v. U.S. Army Corps of Eng’rs,
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667 F.3d 765, 775 (7th Cir. 2011)) (Section 702 applies to non-APA constitutional challenges)
(collecting cases). See also Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1329 (D.C.
Cir. 1996). For PETA to “benefit from the waiver” as articulated in § 702 of the APA, PETA must
demonstrate that the claims are judicially reviewable under § 704. Standage, 526 F. Supp. 3d at
86. Section 704 allows judicial review of “final agency action for which there is no other adequate
remedy in a court.” 5 U.S.C. § 704. See also U.S. Army Corps. of Eng’rs v. Hawkes Co., 578 U.S.
590, 597 (2016); Maryland v. Corp. for Nat’l & Cmty. Serv., 785 F. Supp. 3d 68, 90 (D. Md. 2025)
(citing Jake’s Fireworks Inc. v. U.S. Consumer Prod. Safety Comm’n, 105 F.4th 627, 631 (4th Cir.
2024)).
PETA’s claims are not reviewable under § 704 unless they meet three criteria. City of New
York, 913 F.3d at 431. First, the challenged agency action must be “specific” and “discrete,” rather
than a “broad programmatic attack,” on government policies or procedures. Norton v. Southern
Utah Wilderness Alliance (SUWA), 542 U.S. 55, 64 (2004). This requirement safeguards against
judicial encroachment into agency functions were the court to adjudicate “generalized grievances
asking to improve an agency’s performance or operations.” City of New York, 913 F.3d at 431.
Second, the challenged agency action must be “final” in that the action “determin[ed] rights
and obligations,” of others, id. (quoting Clear Sky Car Wash LLC v. City of Chesapeake, Va., 743
F.3d 438, 445 (4th Cir. 2014)), or from which “legal consequences will flow,” Bennett v. Spear,
520 U.S. 154, 177–78 (1997) (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 71 (1970)). See also Food Town Stores, Inc., 708 F.2d at 923 (noting
finality from a deprivation of a “statutory right” and explaining “the focus should be on the nature
of the consequence accruing from the [agency’s] action, not on what stage in the proceedings the
action occurred”). The determination of rights and obligations stemming from the agency’s action
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must have “an immediate and practical impact . . . or alter the legal regime in which it operates.”
City of New York, 913 F.3d at 431 (quoting Golden & Zimmerman LLC v. Domenech, 599 F.3d
426, 433 (4th Cir. 2010) and Bennett, 520 U.S. at 178) (internal quotation marks omitted).
Third, where, as here, the plaintiff seeks to “compel agency action,” the claim may proceed
only if such action has been “unlawfully withheld or unreasonably delayed.” City of New York,
913 F.3d at 429 (quoting 5 U.S.C. § 706(1)). Plaintiffs must identify the agency action as one that
is “legally required.” Id. (quoting Norton, 542 U.S. at 63).
In short, judicial review is available “only when acts are discrete in character, required by
law, and bear on a party’s rights and obligations.” Id. at 432. Because the challenged agency
action—namely Defendants’ denial of PETA’s request for a live feed—satisfies none of the
necessary preconditions for judicial intervention, dismissal is compelled.
First, the challenged action is not discrete or specific. ECF No. 1-2 at 2–3. PETA attempts
to cast the agency action as a singular denial of a simple request. It is not. As Defendants explained
in their denial letter, the request runs counter to the established protocol of recording the macaques
in various settings, to include during active experimentation. ECF No. 1-3. Defendants further
explained that the lab uses closed circuit-video to monitor the macaques, but the technology “is
not capable of being transmitted to third parties.” Id. To accommodate PETA’s request,
Defendants would have to retool both their programmatic aims for recording and their audio-visual
capabilities. In this important respect, the challenged agency action is neither discrete nor specific,
but rather cuts to the very kind of programmatic decisions that would require reconciling needs of
the experimenters with the public’s video access of the same. “Solving” this problem “likely
require[s] expertise” across several disciplines, to include information technology, the
communications of the monkeys, and the needs of the experimenters to maintain integrity in their
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experimentations. City of New York, 913 F.3d at 433. This is “exactly the sort of ‘broad
programmatic’ undertaking for which the APA has foreclosed judicial review.” Id.
Second, PETA has not shown that Defendants’ denial of PETA’s request has determined
PETA’s “rights” or “obligations.” City of New York, 913 F.3d at 431. PETA contends, with no
support, that it maintains a First Amendment right to “receive” the “communications” of the
macaques and a Fifth Amendment right to be heard on its request for an “open channel of
communication.” ECF No. 1 ¶¶ 1, 11–18. But it cites neither binding nor persuasive authority
that animal communications implicate any such rights, certainly not PETA’s rights as “listener.”
Cf. Lamont v. Postmaster Gen. of U.S., 381 U.S. 301 (1965) (right to receive communist
propaganda mail); Kleindienst v. Mandel, 408 U.S. 753 (1972) (right to hear noncitizen’s speech);
Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n, 475 U.S. 1 (1986) (right to hear commercial speech
about wildlife conservation). Nor does PETA have a “life, liberty, or property” interest in the
asserted “open channel of communications.” Thus, the denial of such request could not have
altered any “rights” of PETA’s. Mallette v. Arlington Cnty. Emps. Supplemental Ret. Sys. II, 91
F.3d 630, 634 (4th Cir. 1996) (explaining that to adequately allege a Fifth Amendment procedural
due process claim, a plaintiff must show that she was deprived of “something that fits into one of
the three protected categories: life, liberty, or property”); Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972) (“To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it.”).
But more to the point, the upshot of PETA’s argument requires this Court to credit that
PETA retains some entitlement to unfettered access to information that is within the control of a
governmental entity. ECF No. 23 at 31. PETA does not. Rather, the demand for open access to
laboratories “in the manner sought” by PETA remains “a question of policy which a legislative
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body might appropriately resolve one way or the other.” Houchins v. KQED, 438 U.S. 1, 12
(1978). The Constitution is plainly “[not] a Freedom of Information Act.” Id. at 14.
Third, PETA has not persuaded the Court that Defendants are “required by law” to broaden
the scope of their current practices of documenting the macaques.2 So when Defendants denied
PETA’s request, they were not acting contrary to that which they were “legally required” to
provide. Thus, for these reasons, the challenged agency action is simply not cognizable under the
APA as a “final agency action.” Defendants enjoy sovereign immunity from suit and the claims
must be dismissed for lack of jurisdiction.
B. No Article III Standing
Alternatively, the Court dismisses the claims for lack of standing. The Court retains the
power to hear only live cases and controversies. U.S. Const. art. III, § 2. See also Beyond Sys.,
Inc. v. Kraft Foods, Inc., 777 F.3d 712, 715 (4th Cir. 2015). For a party to maintain constitutional
standing to sue, it must demonstrate as much. Davis v. FEC, 554 U.S. 724, 733 (2008) (citations
omitted). Standing at the dismissal stage requires the Court to “accept as true all material
allegations of the complaint and construe the complaint in favor of the complaining party.” David
v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). The plaintiff must marshal sufficient facts to make
plausible three basic requirements. See Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017).
First, that plaintiff has suffered an injury in fact, that is “concrete and particularized,” and actual
or imminent, not conjectural or hypothetical. Second, that the injury is “fairly traceable” to the
2 PETA also seems to suggest that this Court retains separate jurisdiction under the Mandamus Act, 28 U.S.C. § 1361.
ECF No. 1 ¶ 10. But like the APA, the Court may compel agency action under the Mandamus Act only where “an
agency has a clear duty to act.” Lovo v. Miller, 107 F.4th 199, 216 (4th Cir. 2024) (citing Murray Energy Corp. v.
Adm’r of Env’t Prot. Agency, 861 F.3d 529, 537 n.4 (4th Cir. 2017)). See also Sleeth v. Dairy Prods. Co. of Uniontown,
228 F.2d 165, 167 (4th Cir. 1955) (To obtain mandamus relief, the plaintiff must show that “there is a clear legal right
to the performance of a particular act or duty[.]”). PETA has failed to make plausible any agency “duty” to outfit its
facilities so that Defendants could give PETA a live feed. Thus, for the same reason, the Court lacks mandamus
jurisdiction.
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challenged action. And third, that the injury can 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).
PETA asserts that its injury lies in its inability to receive “communications” from the
macaques—the “willing speakers who regularly communicate with anyone who listens”—because
of Defendants’ refusal to set up the live feed. ECF No. 23 at 34 (claiming injury due to “restriction
of PETA’s receipt of those macaques’ communications). “To establish injury in fact, a plaintiff
must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins,
578 U.S. 330, 339 (2016), as revised (May 24, 2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992)). A “legally protected interest” is one that “aris[es] from constitutional, statutory,
or common law.” Pender v. Bank of Am. Corp., 788 F.3d 354, 366 (4th Cir. 2015) (citing Lujan,
504 U.S. at 578). “Thus, standing is gauged by the specific common-law, statutory or
constitutional claims that a party presents.” Id. (quoting Int’l Primate Prot. League v. Adm’rs of
Tulane Educ. Fund, 500 U.S. 72, 77 (1991)).
PETA’s claimed injury to its First Amendment right to “listen” is not, as pleaded, a legally
protected interest sufficient to confer standing.3 Although the First Amendment “protects both a
speaker’s right to communicate information and ideas to a broad audience and the intended
recipients’ right to receive that information and those ideas,” Rossignol v. Voorhaar, 316 F.3d 516,
522 (4th Cir. 2003), the narrower claimed right to “receive speech” requires the plaintiff “show
that there exists a speaker willing to convey the information to her,” Stephens v. Cnty. Of
3 Likewise, PETA has also failed to plead a legally protected Fifth Amendment right in open channels of
communications with the macaques sufficient to confer standing. PETA does not have a “legitimate claim of
entitlement” to the communications and cites to no authority that suggests otherwise. Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 577 (1972). Rather, PETA merely has a “unilateral expectation” of such communications,
which is insufficient to establish a legally protected interest under the Fifth Amendment. Id.
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Albemarle, VA, 524 F.3d 485, 492 (4th Cir. 2008) (emphasis added), and that “the listener”
maintains “a concrete, specific connection to the speaker,” Murthy v. Missouri, 603 U.S. 43, 75
(2024). Nowhere does PETA establish any authority whatsoever for the extraordinary proposition
that the macaques’ sounds and movements constitute protected speech to which a companion right-
to-listen exists. Rather, PETA relies on a legion of inapposite law concentrating on the public’s
right to receive human speech. See Lamont v. Postmaster Gen. of U. S., 381 U.S. 301 (1965) (right
to access foreign publication); Kleindienst v. Mandel, 408 U.S. 753 (1972) (right to hear the speech
of Belgian journalist and Marxian theoretician); Va. State Bd. Of Pharmacy v. Va. Citizens
Consumer Council, Inc. 425 U.S. 748 (1976) (rights of consumers of prescription drugs to receive
the communications of licensed pharmacists regarding drug prices). But PETA gives the Court
nothing that comes close to establishing a constitutional right to receive “non-human primate”
sounds or behaviors.
Nevertheless, PETA argues that the macaques can “communicate” their sufferings in
complex ways. ECF No. 1 ¶¶ 17–46. But PETA does not explain how it has a “specific
connection” to the macaques, as speakers, beyond the general averments that the macaques have
the capability of communicating to humans. Thus, even if the Court hypothetically accepts that
macaques are “willing to convey” information to PETA with a form of constitutionally recognized
speech, PETA has failed to articulate a “concrete” and “specific connection” to the macaques such
that PETA has suffered a legally protected interest in listening to the macaques sufficient to confer
standing. Murthy, 603 U.S. at 75.
PETA contends that the Supreme Court’s decision in Murthy v. Missouri, 603 U.S. 43
(2024) reaffirms its “right to listen” theory. ECF No. 23 at 33–34. But Murthy hurts PETA’s
cause more than it helps. There, social media users brought a claim against Executive Branch
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agencies for the Government’s alleged social media censorship during the COVID-19 pandemic.
Id. at 50–51. The social media users pressed a “right to listen” to the “content of other speakers
on social media.” Id. at 74–75. Thus, said the plaintiffs, their injury arose from the restrictions
imposed on “countless other social-media users.” Id. at 75. The Supreme Court rejected the
contention as “startingly broad,” and which, if adopted, “would grant all social-media users the
right to sue over someone else’s censorship,” so long as the plaintiff-users claim an interest in such
speech. Id. (emphasis original). In so concluding, the Court emphasized that it has “never accepted
such a boundless theory of standing.” Id. (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 99
(2013)).
Like the plaintiffs in Murthy, PETA relies on a “boundless” theory of the “right to listen”
to animal sounds and behavior. As in Murthy, the scope of this theory is breathtaking; it would
confer standing to sue on anyone who claims interest in the sounds and movements that animals
use to communicate with each other. This is the very kind of overly broad articulation of “injury”
that the Murthy Court eschewed. PETA, therefore, has not pointed to any legal authority which
supports a constitutionally protected interest in receiving communications from the macaques.4
Thus, PETA lacks standing.
4 To the extent the Court can discern a cognizable injury, it would be based on a “right of access” theory, which PETA
does not allege, due to PETA’s inability to access the non-existent live feed of the macaques. See, e.g., Houchins v.
KQED, Inc., 438 U.S. 1, 14 (1978) (rejecting a First Amendment “right of access” to interview and record inmates);
Am. C.L. Union Found. of S.C. v. Stirling, 123 F.4th 170, 176–77 (4th Cir. 2024) (same). But the Supreme Court has
made clear that “[t]here is no discernible basis for a constitutional duty to disclose, or for standards governing
disclosure of or access to information,” nor is there a “constitutional right to have access to particular government
information, or to require openness from the bureaucracy.” Houchins, 438 U.S. at 14. Thus, a claim based on PETA’s
unfettered entitlement to live-feed access of a government laboratory, too, would fail.
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IV. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion and dismisses the
Complaint without prejudice for lack of subject matter jurisdiction. Because the Court lacks
jurisdiction, it cannot reach the sufficiency of the claims. A separate Order follows.
2/13/26 /s/
Date PAULA XINIS
United States District Judge
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