marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of Congressional purpose to benefit the would-be plaintiff." Id. Liberally construing the complaint in favor of the plaintiffs as required on a motion to dismiss, Jenkins, 395 U.S. at 421, the Court finds that the defendants have failed to demonstrate that it cannot be assumed that Congress intended to permit this lawsuit. See Action Alliance, 789 F.2d at 939 & n. 11; Animal Welfare Institute v. Kreps, 183 U.S. App. D.C. 109, 561 F.2d 1002, 1010 & n. 44 (1977).
The information that the plaintiff organizations are seeking to provide to their members is that which Congress mandated must be annually reported. § 2155. Moreover, the goal of the plaintiffs in seeking to disseminate that information is the same as that of Congress in enacting the requirement: to ensure that laboratory animals are treated in a humane manner. § 2131. This is not a case where the organizations' use of the data would be inconsistent with the purpose for which it was gathered, see Competitive Enterprise, 901 F.2d at 124, or where the plaintiffs are seeking to bypass the administrative enforcement provisions to create their own standards through the use of private lawsuits, see International Primate Protection League, 799 F.2d at 940. Here the plaintiffs are seeking to monitor the proper enforcement of the Act in accord with its purposes. Thus, plaintiffs' asserted injuries are within the zone of interests of the Act.
C. Failure to State a Claim Upon Which Relief Can Be Granted
Although agency actions generally are reviewable under section 10(a) of the APA, judicial review does not extend to actions that are within the discretionary authority of the agency. 5 U.S.C. § 701(a)(2). This grant of discretion can be in the form of a specific grant of authority from the Congress. Discretion is also committed to an agency when "the statute is so drawn that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 828, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). If, however, the agency action is an abuse of discretion, it may be set aside by a reviewing court. 5 U.S.C. § 706(2)(A). An abuse of discretion may be found if there is "no evidence to support the decision or if the decision is based on an improper understanding of the law." Jaimez-Revolla v. Bell, 194 U.S. App. D.C. 324, 598 F.2d 243 (1979). When review of an agency rulemaking is appropriate, and the action is not an abuse of discretion, review is limited to a determination of whether the agency's interpretation of the statute is reasonable. Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 n. 11, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). When the agency action is a refusal to engage in a rulemaking, the scope of judicial review is even narrower than that of normal agency actions. American Horse Protection Ass'n v. Lyng, 258 U.S. App. D.C. 397, 812 F.2d 1, 4-5 (1987). To prevail ultimately, the plaintiffs must prove that the USDA's exclusion of rats, mice and birds from the definition of "animal" and its refusal to promulgate regulations for their care was arbitrary and capricious, an abuse of discretion, or otherwise not in accord with the law. Id. at 4.
The USDA's primary argument to dismiss the plaintiffs' complaint for failure to state a claim is that the language of the definitional statute shows that Congress committed absolute discretion to the USDA to determine the meaning of the term "animal." However, the plain language of the statute does not settle this argument. While the statute provides a role for the Secretary, this role appears limited to a determination of whether a warm-blooded animal "is being used, or is intended to for use, for research, testing, experimentation, or exhibition purposes, or as a pet." 7 U.S.C. § 2132(g). Moreover, because these criteria may constitute clear standards by which the Secretary's determination can be judged, the doctrine of Chaney does not necessarily insulate this determination from judicial review. The Secretary has the authority to determine whether fauna are being used for the purposes enumerated in the statute, but does not clearly have the authority or the discretion to determine that fauna which are being used for these purposes are not "animals" within the meaning of the Act.
The Secretary unquestionably would be within his congressionally delegated discretion if he determined that rats, mice, and birds are not the subject of the Act's enumerated uses, a finding that the Secretary has not made, and does not urge here. Because the defendants have not conclusively proven that the USDA's action was "within the scope of authority delegated to the agency by the statute," Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 42-43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983), the Court cannot dismiss the complaint under Fed. R. Civ. P. 12(b)(6).
After liberally construing the complaint in favor of the plaintiffs as required under a motion to dismiss, the Court concludes that the plaintiffs are persons aggrieved by an agency action within the meaning of the relevant statute, and therefore have standing to seek judicial review. Moreover, the Court finds that the Secretary was not necessarily acting within the discretionary authority delegated by Congress when he determined that birds, mice and rats are not covered by the FLAWA. Thus, the plaintiffs have stated a claim. For the foregoing reasons, the defendants' motion to dismiss is denied.
The Court will issue an Order of even date herewith in accordance with the foregoing Opinion.
ORDER - April 1, 1991, Filed
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 29 day of March, 1991,
ORDERED that the defendant's motion to dismiss the above-captioned case for lack of standing and failure to state a claim shall be, and hereby is, DENIED.