Docket No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. NARUTO, by and through his Next Friend, Plaintiff-Appellant,

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1 Case: , 06/15/2018, ID: , DktEntry: 65, Page 1 of 36 Docket No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NARUTO, by and through his Next Friend, Plaintiff-Appellant, v. DAVID J. SLATER, et al., Defendants-Appellees On Appeal from the United States District Court for the Northern District of California APPELLANT S RESPONSE TO SUA SPONTE ORDER REGARDING EN BANC REVIEW David A. Schwarz Michael D. Harbour IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California Telephone: (310) Facsimile: (310) daschwarz@irell.com Attorneys for Plaintiff-Appellant Naruto by and through his Next Friend, People for the Ethical Treatment of Animals

2 Case: , 06/15/2018, ID: , DktEntry: 65, Page 2 of 36 TABLE OF CONTENTS Page INTRODUCTION... 1 BACKGROUND... 3 ARGUMENT... 9 I. THE PANEL S DENIAL OF THE PARTIES JOINT MOTION TO DISMISS AFTER SETTLEMENT WAS IN ERROR... 9 A. B. C. Under Ninth Circuit Precedent, Courts Should Dismiss An Appeal After The Parties Settle And Move To Dismiss The Panel s Speculative Conclusion That PETA Engaged In Improper Strategic Behavior Is Incorrect The Panel s Decision To Issue An Opinion Was Not Necessary To Protect Judicial Resources And Could Discourage Future Settlements II. THE COURT SHOULD NOT TAKE THIS CASE EN BANC TO RECONSIDER ITS PRIOR HOLDING THAT COURTS HAVE ARTICLE III JURISDICTION TO ADJUDICATE THE RIGHTS OF NON-HUMAN ANIMALS A. B. The Court Should Not Reconsider Its Holding In Cetacean That Animals Can Have Standing Under Article III The Court Should Not Adopt the Position that Courts Lack Jurisdiction over Next Friend Suits Brought on Behalf of Animals CONCLUSION ii -

3 Case: , 06/15/2018, ID: , DktEntry: 65, Page 3 of 36 TABLE OF AUTHORITIES Page(s) Cases Albers v. Eli Lilly & Co., 354 F.3d 644 (7th Cir. 2004) Animal Legal Def. Fund v. Veneman, 490 F.3d 725 (9th Cir. 2007) Bus. Guides, Inc. v. Chromatic Commc ns Enterprises, Inc., 498 U.S. 533 (1991) Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004)... passim Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002)... 5 Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77 (1st Cir. 2010)... 5 Ford v. Strickland, 696 F.2d 804 (11th Cir. 1983)... 12, 13 In re Greene, 223 F.3d 1064 (9th Cir. 2000) Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) Marbury v. Madison, 5 U.S. 137 (1803) Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, No , 2018 WL (N.Y. May 8, 2018)... 22, 24 Oregon v. F.E.R.C., 636 F.3d 1203 (9th Cir. 2011) iii -

4 Case: , 06/15/2018, ID: , DktEntry: 65, Page 4 of 36 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)... 27, 28 Semtek Int l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001)... 27, 29 Spokeo, Inc. v. Robins, 136 S. Ct (2016) Suntharalinkam v. Keisler, 506 F.3d 822 (9th Cir. 2007)... 11, 19 Susan B. Anthony List v. Driehaus, 134 S. Ct (2014) Turtle Island Restoration Network v. U.S. Dep t of Commerce, 672 F.3d 1160 (9th Cir. 2012) Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct (2016) U.S. Bancorp Mortg. Co. v. Bonner Mall P ship, 513 U.S. 18 (1994) United States v. McInnes, 556 F.2d 436 (9th Cir. 1977) United States v. State of Wash., Dep t of Fisheries, 573 F.2d 1117 (9th Cir. 1978)... 11, 12, 13, 20 Statutes 28 U.S.C. 2072(b) Rules Fed. R. Civ. P. 17(a) Fed. R. Civ. P 17(c)... 25, 26, 27, 28 Fed. R. Civ. P iv -

5 Case: , 06/15/2018, ID: , DktEntry: 65, Page 5 of 36 Fed. R. Civ. P. 23(b)(1)(B) Fed. R. Civ. P. 41(b) Fed. R. Civ. P. 42(b) FRAP 28(j) Other Authorities Ashley Glassman, Making Pet Trusts Instruments of Settlors and Not of Courts, 89 Or. L. Rev. 385, 389 (2010) Cass R. Sunstein, Standing for Animals (With Notes on Animal Rights ), 47 UCLA L.Rev ( Gabriel Samuels, Chimpanzees have rights, says Argentine judge as she orders Cecilia be released from zoo, Independent, November 7, Katherine A. Burke, Can We Stand For It? Amending the Endangered Species Act with an Animal Suit Provision, 75 U. Colo. L.Rev. 633 (2004) Sidney R. Thomas, Chief Judge, A Message from the Chief Judge, v -

6 Case: , 06/15/2018, ID: , DktEntry: 65, Page 6 of 36 INTRODUCTION On September 11, 2017, the parties filed a Joint Motion to Dismiss the Appeal and Vacate the Judgment because they reached a settlement (the Joint Motion ). Dkt. 52. On April 13, 2018, the panel denied the Joint Motion. Dkt. 59. On April 23, 2018 the panel issued a merits decision. Dkt. 62 (the Opinion [ Op. ]). Neither party requested rehearing or rehearing en banc. On May 25, 2018, the panel issued the following order: A judge has made a sua sponte request for a vote on whether to rehear en banc the published opinion dated April 23, Therefore... the parties are requested to file simultaneous briefs setting forth their respective positions on whether the case should be reheard en banc. Dkt. 63. People for the Ethical Treatment of Animals ( PETA ), one of the two next friends of Plaintiff-Appellant Naruto who filed this action for copyright infringement in the district court, hereby submits the following response. PETA sees three possible issues for en banc consideration, but believes only the first issue warrants rehearing. The threshold question is: Should the panel have granted the Joint Motion? PETA believes the answer is yes. There is no longer

7 Case: , 06/15/2018, ID: , DktEntry: 65, Page 7 of 36 any adversity here because of the settlement. Under Circuit precedent, courts should refrain from adjudicating abstract questions of law that no party is currently pursuing. The panel decision and the decision of the court below thus should be vacated and the case dismissed. Because there is no longer any dispute between the appellant and the appellees, en banc consideration of any other issues would be inappropriate. Nevertheless, PETA addresses below two issues that were identified in the panel decision and partial concurrence. First, both the majority and concurrence suggest that the Ninth Circuit should overrule its prior decision in Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), that non-human animals can have Article III standing to pursue claims in federal court. Second, the partial concurrence also suggests that this appeal should have been dismissed for lack of jurisdiction because the Federal Rules of Civil Procedure do not authorize next friend suits brought on behalf of non-human animals. PETA does not believe these issues warrant en banc review. None of the parties raised either of these arguments either below or on appeal. The Court should not consider them sua sponte after the

8 Case: , 06/15/2018, ID: , DktEntry: 65, Page 8 of 36 parties have settled and moved to dismiss. There is no reason to further review this case to revisit settled law that non-human animals have standing to bring suit in federal court under Article III and the Federal Rules of Civil Procedure. 1 BACKGROUND This case began when next friends of Plaintiff-Appellant Naruto, a seven-year old crested macaque living on the island Sulawesi in Indonesia, filed suit against Defendant-Appellees David Slater ( Slater ), Wildlife Personalities, LTD., and Blurb, Inc. (collectively, Defendants ) in the Northern District of California. Dkt. 18 (Appellants Excerpts of Record [ ER ]) at The two next friends for the purposes of the litigation were Antje Engelhardt, Ph.D ( Dr. Engelhardt ), a German primatologist and ethnologist who had monitored and studied Naruto since his birth, and PETA, a non-profit dedicated to promoting animal rights. ER 23. The Complaint alleged 1 Because PETA believes that this case should be dismissed, it does not address the panel s determination that Naruto lacks standing under the Copyright Act. However, this should not be construed as a concession that the panel s decision was correct. Indeed, PETA respectfully believes that it was not. If the Court nevertheless decides to rehear this case en banc for the broader purpose of considering the panel s merits holding, PETA respectfully requests the opportunity to brief the panel s copyright decision as well

9 Case: , 06/15/2018, ID: , DktEntry: 65, Page 9 of 36 that Slater and Blurb had infringed on Naruto s copyright when they published and sold pictures that Naruto had taken of himself using Slater s unattended camera equipment (the Monkey Selfies ). ER 20. The district court dismissed Naruto s complaint after concluding that non-human animals do not have standing to bring a claim for copyright infringement under the Copyright Act. ER 14. Naruto, through his next friends, appealed. Dkt. 1. While the appeal was pending, Dr. Engelhardt filed a motion to withdraw and was dismissed from the case. Dkt. 14. PETA continued to litigate on Naruto s behalf, believing that it could adequately represent Naruto even though it did not have the same historical connection to Naruto that Dr. Engelhardt did. 2 2 Though this Court has required that a next friend must have a significant relationship to the party on behalf of whom the suit is brought, it has acknowledged that this standard is necessarily flexible depending on the circumstances: Significance is a relative concept, dependent on the individual prisoner s plight. Not all detainees may have a relative, friend, or even a diplomatic delegation able or willing to act on their behalf. In such an extreme case it is plausible that a person with some relationship conveying some modicum of authority or consent, significant in comparison to the detainee s other relationships, could serve as the next friend

10 Case: , 06/15/2018, ID: , DktEntry: 65, Page 10 of 36 Moreover, if PETA had withdrawn or dismissed the appeal following Dr. Engelhardt s departure, it would have left Naruto bound by an adverse judgment that he never had the opportunity to contest on appeal. At oral argument, however, the panel questioned whether it was proper to proceed with this case given Dr. Engelhardt s withdrawal. When questioning PETA s counsel, Judge Bea expressed doubt that PETA could satisfy the next friend standing requirements and suggested that the district court decision should be vacated and the case dismissed: The only allegations in the complaint that I found [regarding next friend standing]... were the allegations of Dr. Engelhardt, who had said she had known, monitored, and studied Naruto since his birth. That might be sufficient for the district court in its discretion to find a significant relationship [to satisfy next friend standing]. But Dr. Engelhardt, for reasons unknown, is no longer an appellant no longer a next friend. PETA s allegations... have Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1162 (9th Cir. 2002). See also Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 91 (1st Cir. 2010) ( [W]here an individual has no significant relationships, a significant relationship might not be required in order to allow the person to proceed through a Next Friend. ). Here, Naruto s other next friend had abandoned his case on appeal. PETA believed in good faith that this constituted the sort of extreme case[] that warranted a more relaxed application of the significant relationship standard. Coal. of Clergy, 310 F.3d at

11 Case: , 06/15/2018, ID: , DktEntry: 65, Page 11 of 36 nothing to do with its connection or relationship with Naruto other than the ideological expressions of dedication and commitment... which were found to be insufficient. So why shouldn t we vacate this decision and remand it to the district court with instructions to enter a dismissal with prejudice because you have stipulated [below] that you will not amend your complaint? Dkt. 46 (oral argument recording) at 2:15-3:27 (emphasis added). 3 (As explained further below, the parties structured their settlement based on the panel s suggestion that the decision should be vacated and the case dismissed.) Roughly two weeks after oral argument, PETA was approached by counsel for Slater who raised the possibility of settlement. To facilitate these discussions, the parties promptly asked the Court roughly one week later to stay the appeal so that they could negotiate settlement terms. Dkt. 48. The Court granted the Parties request for a stay one week after the parties request. Dkt. 49. Slater s suggestion of settlement discussions presented an opportunity for PETA to negotiate a resolution that would provide immediate benefits for Naruto. Given the panel s expressed doubts about PETA s next friend standing after the departure of Dr. 3 This recording is available at

12 Case: , 06/15/2018, ID: , DktEntry: 65, Page 12 of 36 Engelhardt, it appeared unlikely that the panel would reverse the dismissal of the action. Moreover, PETA s next friend status was a collateral issue that had nothing to do with the reasons why it had initially brought this case, which were solely to protect Naruto s rights under the Copyright Act, not to litigate PETA s fitness to serve as Naruto s next friend. The parties were ultimately able to reach a resolution in which Slater agreed to give a quarter of the proceeds from the Monkey Selfies to charities that benefit Naruto and his fellow macaques and help preserve their habitat in Indonesia. Op. at 8., n.3. These funds will go to protecting Naruto and other crested macaques from threats such as deforestation, human encroachment, and being hunted for bush meat. To PETA s knowledge, this is the first time a non-human animal has received compensation for a creative work. Because PETA s ability to represent Naruto as a next friend was in dispute at the time of the settlement, the settlement was between PETA and Defendants only. Naruto was not a party to the agreement. To address this, the parties agreed to jointly move to dismiss the appeal

13 Case: , 06/15/2018, ID: , DktEntry: 65, Page 13 of 36 and vacate the judgment against Naruto below. 4 Dkt. 52. Dismissal with vacatur would ensure that Naruto could benefit from the settlement without being saddled with an adverse judgment below. Indeed, as noted above, the Joint Motion was consistent with and based upon the panel s own suggestion that the appeal should be dismissed and the decision below vacated given the departure of one of Naruto s next friend representatives while this case was pending on appeal. Dkt. 46 at 3:13-3:28. ( So why shouldn t we vacate this decision and remand to the district court with instructions to enter a dismissal with prejudice...? ). Seven months after the Joint Motion was filed, the Court denied it in a written order. Dkt.59 (the Order ). It then issued an opinion affirming the district court s dismissal. The majority opinion agreed with the district court s conclusion that non-human animals do not have standing under the Copyright Act. Op. at Judge Smith concurred in part. Id. at 19. He would have dismissed this appeal for 4 Neither the settlement nor the motion to dismiss was conditioned on the request for vacatur. In their motion, the parties asked for the court, in the alternative, to remand to the district court for it to consider the parties request for vacatur if the panel concluded that it could not vacate the judgment below. Dkt. 52 at

14 Case: , 06/15/2018, ID: , DktEntry: 65, Page 14 of 36 lack of jurisdiction because, in his view, PETA lacked next friend standing. Id. There were no requests by the parties (who, after all, had settled) to rehear the case. PETA continues to believe the proceedings should have ended with a grant of the Joint Motion. ARGUMENT I. THE PANEL S DENIAL OF THE PARTIES JOINT MOTION TO DISMISS AFTER SETTLEMENT WAS IN ERROR The panel erred by denying the parties Joint Motion to dismiss this appeal. The panel concluded that denial was justified because it believed that PETA was attempting to engage in improper strategic behavior to avoid an adverse judgment on the merits. Order at 3-4. The panel suggested that, by settling, PETA had failed to live up to the mantel of next friend by abandoning Naruto in favor of its own ideological goals. But it also concluded that it could consider the merits of this appeal because PETA had adequately represented Naruto s interests prior to the settlement. PETA respectfully submits that the panel s decision was procedurally incorrect and based on inaccurate factual assumptions. 5 5 Rather than having been abandoned by PETA, as the panel s Opinion incorrectly concluded, Naruto is the beneficiary of the

15 Case: , 06/15/2018, ID: , DktEntry: 65, Page 15 of 36 A. Under Ninth Circuit Precedent, Courts Should Dismiss An Appeal After The Parties Settle And Move To Dismiss It is a bedrock principle of Article III that appellate courts do not adjudicate any case that has lost its character as a present, live controversy... to avoid advisory opinions on abstract propositions of law. Oregon v. F.E.R.C., 636 F.3d 1203, 1206 (9th Cir. 2011) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)). Accordingly, when a case settles during the pendency of an appeal, the appeal becomes moot and the [c]ourt may not consider its merits. See U.S. Bancorp Mortg. Co. v. Bonner Mall P ship, 513 U.S. 18, 21 (1994). Even if this case is not technically moot because, for reasons explained above, Naruto is not a party to the settlement, the same Article III considerations apply. There is no longer any live controversy before the Court, as there is currently no representative who is pursuing Naruto s substantive claims on his behalf. See Op. at 8, n.3. As Justice Kennedy explained when he was a judge on this Circuit, [w]e are reluctant to determine an issue presented in the abstract, and settlement agreement, which is designed to protect him, his fellow macaques, and his habitat from varied threats, and which PETA negotiated on his behalf, as detailed throughout this brief

16 Case: , 06/15/2018, ID: , DktEntry: 65, Page 16 of 36 we should be especially cautious of doing so when it appears that one of the parties is not willing to fully contest the issue. United States v. State of Wash., Dep t of Fisheries, 573 F.2d 1117, 1118 (9th Cir. 1978). Consistent with this rule, it is common practice in this Circuit to dismiss an appeal upon the request of one of the parties (even when another party objects, which is not the case here). See id. (dismissing appeal over opposing party s objection); see also Fed. R. Civ. P. 42(b) ( An appeal may be dismissed on the appellant s motion on terms agreed to by the parties or fixed by the court. ). This Court has adhered to this practice even where the motion for dismissal was made after oral argument. See, e.g., Suntharalinkam v. Keisler, 506 F.3d 822, 823 (9th Cir. 2007); Animal Legal Def. Fund v. Veneman, 490 F.3d 725, 726 (9th Cir. 2007) (dismissing appeal that was pending en banc and vacating three-judge panel s opinion). In Suntharalinkam, this Court granted a motion to dismiss even though the case had been taken en banc, and the appellant filed the motion almost a month after [the] case was argued and submitted to the en banc panel. Suntharalinkam, 506 F.3d at 823 (Kozinski, J., dissenting). This Circuit has explained that courts should only decline to dismiss an appeal in exceptional circumstances,

17 Case: , 06/15/2018, ID: , DktEntry: 65, Page 17 of 36 such as where it appear[s] that an appellant [seeks] dismissal for the purpose of evading appellate determination of certain questions in order to frustrate court orders in the continuing litigation. Wash., Dep t of Fisheries, 573 F.2d at (Kennedy, J.) (emphasis added). Here, the settlement was not an attempt to frustrate orders in [a] continuing litigation. Id. To the contrary, the parties settlement and Joint Motion were designed to resolve this dispute in a manner that would, among other things, benefit Naruto. The panel denied the motion relying on Judge Kozinski s dissent in Suntharalinkamn and inapposite out-of-circuit authority. Order at It then went on to 6 The out-of-circuit cases cited by the panel are distinguishable. First, in Albers v. Eli Lilly & Co., 354 F.3d 644 (7th Cir. 2004), the Seventh Circuit refused to grant a party s request for dismissal where the other party did not consent, and the attorney had essentially conced[ed] on the record that he wanted to dismiss the appeal so he could try again, with a different client. Id. at 646. Here, the parties agreed to jointly dismiss the case, and PETA cannot bring suit against Defendants again due to the settlement. See id. (noting that dismissal is discretionary [w]hen the parties do not agree on terms ). Second, in Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004), the Second Circuit refused to dismiss an appeal based on a settlement that was conditioned on vacating the judgment below. Id. at 161. Here, though the parties requested that the judgment below be vacated (consistent with the panel s suggestion at oral argument), their settlement was in no way conditioned on a grant of vacatur (indeed, the settlement is still in effect). Finally, in Ford v. Strickland, 696 F.2d 804, 807 (11th Cir. 1983), the Eleventh Circuit declined a unilateral motion to dismiss

18 Case: , 06/15/2018, ID: , DktEntry: 65, Page 18 of 36 resolve this case on the merits to address what it considered to be important legal issues, not because there was a live dispute before it. Order at 2. This was contrary to circuit precedent. See Wash., Dep t of Fisheries, 573 F.2d at (Kennedy, J.). The panel justified its decision to reach the merits despite the parties settlement and dismissal based on the fact that it had already spent resources considering the merits of the appeal and PETA had engaged in strategic behavior. Order at 3-4. In its subsequent Opinion, the panel elaborated that PETA had abandoned Naruto s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA s institutional interests. Op. at 8, n.3. The panel went on to criticize PETA for allegedly fail[ing] to pursue [Naruto s] interests before its own and using him as an unwitting pawn in its ideological goals. Id. As discussed more fully below, PETA never abandoned Naruto in favor of its own interests. But logically if the panel believed that PETA had failed to live up to its obligations as Naruto s next friend, then it made at the eleventh hour after the court had engaged in several months of deliberation. Id. at 807. Here, the parties promptly asked for a stay and then later asked for a dismissal while this appeal was still stayed

19 Case: , 06/15/2018, ID: , DktEntry: 65, Page 19 of 36 should not have decided the appeal against Naruto on the merits. After all, according to the panel, the entire point of the next friend standing requirements is to protect the rights and interests of parties who are incapable of representing themselves and may be prejudiced by an adverse ruling. Op. at 8, n.3 (citing Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979)). stating: When the panel turned to the merits, however, it changed course, [W]e find that this case was briefed and argued by competent counsel who represented the legal interests of the incompetent party, but not a person, Naruto. Thus, his interests up to submission of the case following oral argument were adequately protected, notwithstanding any deficiencies in PETA s Next Friend relationship. Op. at 10, n.4. In sum, the panel concluded that, for purposes of denying the parties Joint Motion, PETA was an inadequate representative of Naruto who had abandoned him in favor of pursuing its ideological goals. Id. at 8, n.3. But for purposes of considering the merits of Naruto s claims, the panel concluded that PETA had adequately protected his interests. Op. at 10, n.4. PETA respectfully contends that the stated reasons for the denial

20 Case: , 06/15/2018, ID: , DktEntry: 65, Page 20 of 36 of the Joint Motion cannot be squared with the stated reasons as to why it was appropriate to decide the appeal on the merits. B. The Panel s Speculative Conclusion That PETA Engaged In Improper Strategic Behavior Is Incorrect The panel s speculative conclusion that PETA engaged in improper strategic behavior is incorrect. The panel states that PETA abandoned the appeal to protect its institutional interest after the proverbial writing was on the wall following oral argument. Op. at 7, n.3. The writing on the wall, so to speak, was the panel s skepticism that PETA, now proceeding without the primatologist, could meet the requirements to be Naruto s next friend for the purposes of the appeal. But PETA did not settle the appeal to avoid an adverse ruling on that or any other issue (and nothing in the record suggests otherwise). To the contrary, the settlement and Joint Motion were structured in accordance with the panel s suggestion that Naruto now lacked a next friend under the significant relationship standard, and therefore the case should be dismissed and the order below vacated. PETA also never abandoned Naruto. Indeed, after oral argument, PETA continued to litigate this case by filing a Rule 28(j) Letter addressing some of the issues the panel had raised at the hearing. Dkt

21 Case: , 06/15/2018, ID: , DktEntry: 65, Page 21 of 36 It was Slater, not PETA, who initiated settlement discussions by suggesting that the parties might be able to reach an acceptable resolution. 7 Once it became apparent that the parties might be able to reach a satisfactory settlement that would provide tangible benefits to Naruto, PETA listened to and negotiated with Defendants. These discussions ultimately resulted in Slater agreeing to pay a quarter of his earnings from the [Monkey Selfies] to charities that protect the habitat of Naruto and other crested macaques in Indonesia. Op. at 8, n.3. The panel s conclusion that PETA somehow abandoned Naruto in a ploy to avoid a ruling that was adverse to its institutional interests is incorrect. To the contrary, PETA acted reasonably and responsibly in considering the observations made at oral argument and welcoming Slater s desire to find common ground with PETA. Indeed, it would have been improper for PETA to pursue its own ideological goals by refusing to consider a settlement offer that could provide real benefits 7 When the parties requested that the panel stay the appeal so they could engage in settlement discussions, the panel granted the stay. Dkt. 49. There was no suggestion that these post-argument discussions were somehow improper

22 Case: , 06/15/2018, ID: , DktEntry: 65, Page 22 of 36 for Naruto and his community just so PETA could obtain a ruling on appeal. C. The Panel s Decision To Issue An Opinion Was Not Necessary To Protect Judicial Resources And Could Discourage Future Settlements The panel also stated that denying the parties Joint Motion was warranted based on the significant resources that the panel had already invested in this case. Order at 1, 3. However, the parties dismissal, as with most settlements, was intended to preserve court resources. The panel s Order denying the Joint Motion states that the parties filed their motion to dismiss nearly two months after the court heard oral argument in this matter. Order at 1. But the parties had promptly requested that the panel stay this appeal just three weeks after oral argument so that they could pursue settlement discussions. Dkt. 48. The panel granted this request one week later. Dkt. 49. Though it took the parties a few more weeks to reach an agreement and hammer out the details of a settlement, Dkt. 52, the parties consistently updated the panel regarding their progress, Dkts. 50 and 51. Post-oral argument settlements should be permitted and, indeed, encouraged where the parties work in good faith to reach an acceptable

23 Case: , 06/15/2018, ID: , DktEntry: 65, Page 23 of 36 resolution. See Turtle Island Restoration Network v. U.S. Dep t of Commerce, 672 F.3d 1160, 1167 (9th Cir. 2012) ( Settlement is to be encouraged. ). [T]here is an overriding public interest in settling and quieting litigation. United States v. McInnes, 556 F.2d 436, 441 (9th Cir. 1977). 8 The panel s Order here, however, could frustrate this public interest by discouraging parties from engaging post-oral argument settlement discussions in the future. PETA understands that this Court puts significant effort and resources into preparing cases for oral argument. And PETA is appreciative of the effort that the panel put into this matter here. However, these resources are inevitably expended any time a case is heard on oral argument, yet this Court has consistently granted motions to dismiss in such cases, even after a case has been re-briefed and re-heard en banc. See, e.g., Suntharalinkam, 506 F.3d at This policy in favor of settlement is reflected in the Court s mediation program. See Sidney R. Thomas, Chief Judge, A Message from the Chief Judge, The court offers [mediation] service[s], at no cost, because it helps resolve disputes quickly and efficiently and can often provide a more satisfactory result than can be achieved through continued litigation. Id. (emphasis added). The mediation program is designed to foster settlement even in cases involving important issues of public policy. Id

24 Case: , 06/15/2018, ID: , DktEntry: 65, Page 24 of 36 PETA respectfully believes that the panel should have done the same here. II. THE COURT SHOULD NOT TAKE THIS CASE EN BANC TO RECONSIDER ITS PRIOR HOLDING THAT COURTS HAVE ARTICLE III JURISDICTION TO ADJUDICATE THE RIGHTS OF NON-HUMAN ANIMALS The panel majority explained that, under Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004), injuries suffered by animals can be cognizable under Article III. Opp. at 12 (citing Cetacean, 386 F.3d at 1175). Nonetheless, both the majority and Judge Smith s partial concurrence suggest that this holding warrants en banc reconsideration. 9 Neither of the Defendants argued that courts categorically lack jurisdiction over suits brought by or on behalf of non-human animals, nor did the parties request en banc rehearing on this issue. In fact, Slater has made it clear in his response to the Court s order requesting briefing that he disagrees with this proposition. In this respect, PETA and Slater are in agreement. The Court should not reach out to address abstract legal disputes that no party wishes to pursue after a case has settled. See State of Wash., Dep t of Fisheries, 573 F.2d at See, e.g., Op. at 12, n. 5; id., at 14, n.7; id., at 34, n

25 Case: , 06/15/2018, ID: , DktEntry: 65, Page 25 of 36 Further, this Court s previous holding that Article III does not prohibit courts from hearing cases brought on or behalf of animals is correct. There is no cause to disturb it. A. The Court Should Not Reconsider Its Holding In Cetacean That Animals Can Have Standing Under Article III To establish an Article III injury, 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, 136 S. Ct. 1540, 1548 (2016). Nothing prevents non-human animal from making this showing. Setting aside that Naruto is a crested macaque, this case presents a straightforward copyright dispute. Naruto claims that defendants published a photograph of which he is the rightful author. Ownership disputes are the type of injury that federal courts adjudicate every day. The mere fact that Naruto is not a human does not change this standing analysis. The standing requirement of Article III is meant to preserve separation of powers by preventing courts from issuing opinions on theoretical legal questions when there is no current case or controversy before them. Susan B. Anthony List v. Driehaus, 134 S

26 Case: , 06/15/2018, ID: , DktEntry: 65, Page 26 of 36 Ct. 2334, 2341 (2014) ( The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. ). It does not limit the types of individuals or entities who can bring suit. As this Court explained in Cetacean: [W]e see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents. 386 F.3d at It would not usurp the powers of the political branches for courts to adjudicate disputes brought on or behalf of non-human animals (any more than it usurps their authority to adjudicate suits brought on behalf of ships). See Susan B. Anthony List, 134 S. Ct. at To the contrary, reading Article III to prohibit such suits would profoundly impede Congress s legislative powers. Even if one agrees with the panel s conclusion that the Copyright Act does not grant non-humans the right to sue for infringement, Congress should not be prevented from ever granting them this right. Non-human animals are the next frontier of civil rights. The question of whether they should be able to enjoy some of the same

27 Case: , 06/15/2018, ID: , DktEntry: 65, Page 27 of 36 fundamental right[s] as humans is profound and far-reaching. Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, No , 2018 WL , at *2 (N.Y. May 8, 2018) (Fahey, J., concurring). It speaks to our relationship with all the life around us. Id. Even if it is arguable that non-human animals are not persons, narrowly construed, this does not mean they are categorically incapable of possessing rights. See id. Courts traditionally did not recognize trusts with non-human beneficiaries; now almost every state has enacted laws empowering the creation of such trusts. Ashley Glassman, Making Pet Trusts Instruments of Settlors and Not of Courts, 89 Or. L. Rev. 385, 389 (2010) ( Statutory pet trusts exist in forty-four states and were created to allow trusts with a nonhuman beneficiaries. ). Prominent legal scholars have advocated in favor of giving non-human animals statutory standing to protect their interests, 10 and, in jurisdictions outside the United States, courts have granted relief in suits brought on behalf of 10 See, e.g., Cass R. Sunstein, Standing for Animals (With Notes on Animal Rights ), 47 UCLA L.Rev (2000); Katherine A. Burke, Can We Stand For It? Amending the Endangered Species Act with an Animal Suit Provision, 75 U. Colo. L.Rev. 633 (2004)

28 Case: , 06/15/2018, ID: , DktEntry: 65, Page 28 of 36 animals. 11 It would be a mistake to hold that Article III forever deprives Congress of the ability to empower non-human animals to bring suit in the United States. The panel identifies a series of policy reasons why affording nonhuman animals standing to bring suit would result in a parade of horribles: For example, if animals may sue, who may represent their interests? If animals have property rights, do they also have corresponding duties? How do we prevent people (or organizations, like PETA) from using animals to advance their human agendas? Op. at 12, n.5. But there is no reason why affording animals standing would create greater difficulties than affording standing to, for example, infants, entities, or objects. See Cetacean, 386 F.3d at Each of these legal persons gives rise to representational questions that have been addressed by statutory and common law doctrines. See, e.g., Nonhuman Rights Project, Inc., 2018 WL , at *1 (Fahey, J., concurring) ( Even if it is correct... that nonhuman animals cannot 11 Gabriel Samuels, Chimpanzees have rights, says Argentine judge as she orders Cecilia be released from zoo, Independent, November 7, 2016 available at

29 Case: , 06/15/2018, ID: , DktEntry: 65, Page 29 of 36 bear duties, the same is true of human infants or comatose human adults. ) Legislatures are capable of tackling these difficulties. Yet the panel suggests that they should be constitutionally prohibited from doing so. PETA argues above that there is no longer any real controversy here given the settlement and, therefore, the proceedings should conclude. It would be an odd result for there to be an en banc proceeding about Article III standing in a case where there are no longer any live disputes. The Court should thus decline to take up this issue en banc. B. The Court Should Not Adopt the Position that Courts Lack Jurisdiction over Next Friend Suits Brought on Behalf of Animals In his partial concurrence, Judge Smith asserts that the panel lacked jurisdiction over this case because Next-friend standing can never apply to animals. The Court should not take this case en banc to consider Judge Smith s position. No party raised this argument on appeal or sought en banc review of this question. Moreover, PETA and Slater are again in agreement that this conclusion is incorrect

30 Case: , 06/15/2018, ID: , DktEntry: 65, Page 30 of 36 Judge Smith reasons: the Federal Rules only authorize Next Friend suits on behalf of a minor or an incompetent person. Fed. R. Civ. P 17(c) (emphasis added). Per the text, this can only apply to human persons, not any minor or incompetent corporations or animals. Op. at 27. Thus Judge Smith contends that the panel erred by addressing whether Naruto has statutory standing to bring a copyright claim because neither Rule 17(c) nor any other procedural provision provides the court with jurisdiction over that dispute. In other words, in Judge Smith s view, even if there was no dispute that Congress gave non-human animals standing under the Copyright Act to protect creative works, there would be no procedural mechanism by which non-human animals could litigate their claims in federal court. This is not correct. If the Copyright Act gave Naruto standing to sue for copyright infringement, then Rule 17(c) cannot be read so as to preclude him from vindicating that right. It is a settled and invariable principle, that every right, when withheld, must have a remedy

31 Case: , 06/15/2018, ID: , DktEntry: 65, Page 31 of 36 Marbury v. Madison, 5 U.S. 137, 147 (1803). Moreover, such a reading would clearly violate the Rules Enabling Act. 12 The Rules Enabling Act empowers the Judiciary to promulgate general rules of practice and procedure, but such rules cannot abridge, enlarge or modify any substantive right. 28 U.S.C. 2072(a) and (b). This limitation is grounded in principles of federalism and separation of powers. It is meant to prevent [t]he judicial frustration of [legislative] intent under the guise of regulating procedure, or legislation masked as mere judicial housekeeping. In re Greene, 223 F.3d 1064, 1071 (9th Cir. 2000); see also Bus. Guides, Inc. v. Chromatic Commc ns Enterprises, Inc., 498 U.S. 533, 565 (1991) (Kennedy, J., Dissenting) ( The grant of authority to regulate procedure and the denial of authority to alter substantive rights expresses proper concern for federalism and separation of powers. ) (citing 19 C. Wright, A. 12 The majority also concluded that next friend suits can never be brought on behalf of animals under Rule 17(c). Op. at 9. However, unlike Judge Smith, the majority concluded that this doesn t prevent courts from hearing their claims because animals may bring suit under Rule 17 even where they have no Next Friend. Id. While PETA believes that the majority adopted an unreasonably narrow interpretation of Rule 17(c) Next Friend standing, its decision does not violate the Rules Enabling Act because it does not preclude animals from vindicating their rights in federal court

32 Case: , 06/15/2018, ID: , DktEntry: 65, Page 32 of 36 Miller, & E. Cooper, Federal Practice and Procedure 4509 (1982)). The Rules Enabling Act and the constitutional principles that underpin it thus prohibit courts from interpreting procedural rules so as to impede upon, or totally eviscerate, a party s substantive rights. See also Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999) (adopting a limiting construction of Fed. R. Civ. P. 23(b)(1)(B) in order to minimiz[e] potential conflict with the Rules Enabling Act and avoid[] serious constitutional concerns ). 13 In order to apply this interpretative rule, however, one must first determine what these substances rights are. Thus, in the present case, the question of whether non-human animals may invoke the procedural mechanism of the federal judiciary to seek redress for a copyright violation depends on whether the Copyright Act grants them this right, not on whether the Rule 17(c) specifically mentions non-human animals as opposed to persons. 13 The Supreme Court has consistently rejected interpretations of federal rules that would limit a party s substantive rights. See, e.g., Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2016) (reading Rule 23 to prohibit use of representative evidence... would ignore the Rules Enabling Act s pellucid instruction that federal rules cannot abridge... any substantive right ) (quoting 28 U.S.C. 2072(b)); Semtek Int l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503, (2001) (rejecting an interpretation of Fed. R. Civ. P. 41(b) that would arguably violate the jurisdictional limitation of the Rules Enabling Act );

33 Case: , 06/15/2018, ID: , DktEntry: 65, Page 33 of 36 This is because, if non-human animals do indeed have rights under the Copyright Act, then it would be unreasonable to interpret the term person in the Federal Rules narrowly to exclude them as Judge Smith suggests. See Ortiz, 527 U.S. at 842. Procedural rules must yield to substantive rights, not the other way around. For example, as noted above, the vast majority of states authorize trusts created for the benefit of non-human animals. But there is no Federal Rule that expressly authorizes trustees of animal trust to bring suit. Indeed, the text of Rule 17(a), which expressly deals with suits brought by trustees, expressly mentions persons, just like Rule 17(c). Fed. R. Civ. P. 17(a) ( The following may sue in their own names without joining the person for whose benefit the action is brought ) (emphasis added). Thus, according to Judge Smith s reasoning, a federal court would likely lack jurisdiction over a suit brought on behalf of an animal trust even in a straightforward diversity case to protect trust assets (such as a breach of contract dispute). The Rules Enabling Act, however, prohibits interpreting the Federal Rules so as to limit jurisdiction over state law claims in this manner. See Semtek Int l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001)

34 Case: , 06/15/2018, ID: , DktEntry: 65, Page 34 of 36 In sum, to the extent that it has been suggested that the Court rehear this case to address Judge Smith s position, the Court should decline the invitation. CONCLUSION PETA respectfully submits that the Court should take this matter en banc for the limited purpose of granting the parties Joint Motion to dismiss this appeal and vacate the judgment below, or, in the alternative, dismiss and remand to the district court to consider the issue of vacatur. Dated: June 15, 2018 IRELL & MANELLA LLP By: /s/ David A. Schwarz David A. Schwarz Attorneys for Plaintiff/Appellant Naruto by and through his Next Friend, People for the Ethical Treatment of Animals

35 Case: , 06/15/2018, ID: , DktEntry: 65, Page 35 of 36 and attached to the end of the brief. check appropriate option (Rev.12/1/16)

36 Case: , 06/15/2018, ID: , DktEntry: 65, Page 36 of 36 9th Circuit Case Number(s) NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator). ********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date). Jun 15, 2018 I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) /s/ Michael D. Harbour ********************************************************************************* CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date). Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-cm/ecf participants: Signature (use "s/" format)