The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
The plaintiffs, two animal welfare groups and two individuals, allege that the defendants, the United States Department of Agriculture ("USDA"), the Secretary of USDA ("Secretary"), and the Administrator of the Animal Plant Health Inspection Service, have violated the mandate of the Federal Laboratory Animal Welfare Act ("FLAWA" or "Act"), 7 U.S.C. §§ 2131 et seq., by promulgating regulations which fail to include birds, rats, and mice as "animals" within the meaning of the Act. The defendants have filed a motion to dismiss the plaintiff's amended complaint for lack of standing and for failure to state a claim upon which relief can be granted.
Congress enacted the Federal Laboratory Animal Welfare Act, 7 U.S.C. §§ 2131 et seq., to insure, inter alia, "that animals intended for use in research facilities . . . are provided humane care and treatment." 7 U.S.C. § 2131(1). Therefore, the Secretary was charged with promulgating regulations prescribing standards for the proper treatment of animals. § 2143(a)(1).
To facilitate enforcement of these standards, the Secretary requires regulated owners or users of animals covered by the Act to submit annual reports concerning their compliance with the appropriate standards. 9 C.F.R. § 2.36. These reports are then summarized in the Secretary's annual report to Congress, as required by 7 U.S.C. § 2155.
"Animals" are defined in the Act to mean
any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes horses not used for research purposes and other farm animals . . . .
§ 2132(g). The regulations implementing this section further refine the definition of animal by explicitly excluding rats, mice, and birds.
9 C.F.R. § 1.1(n). The exclusion of rats, mice, and birds dates from the first regulations implementing the Act, promulgated in 1971. See 36 Fed. Reg. 24,919 (1971). After a 1985 amendment of the Act, individuals and groups concerned about the welfare of these fauna suggested that the exclusion of rats, mice and birds be dropped. The USDA refused to make this change, see 54 Fed. Reg. 10,823-24 (1989), and two animal welfare organizations filed a petition with the USDA for a rulemaking to amend the regulation. When the USDA denied the petition in June 1990, the plaintiffs filed this suit. The plaintiffs are the two animal welfare advocacy organizations, and an individual member of each organization.
A court may grant a motion to dismiss only when the moving party has shown "beyond doubt that the plaintiffs can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Moreover, "the complaint must be 'liberally construed in favor of the plaintiffs,' who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 199 U.S. App. D.C. 23, 617 F.2d 605, 608 (1979) (quoting Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969)).