The opinion of the court was delivered by: CHARLES R. RICHEY
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 parties have filed cross motions for summary judgment.
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 track this language, but, in addition, explicitly exclude rats of the genus rattus, mice of the genus mus, and birds from the definition.
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. They seek, inter alia, declaratory judgment and an injunction preventing defendants from excluding birds, rats, and mice from the definition of "animal" in applying and enforcing the Act. Plaintiffs also seek an order setting aside the denial of plaintiffs' rulemaking petition and directing defendants to promulgate regulations including birds, rats and mice in the definition of animal and setting standards for their care and to reconsider the denial of the rulemaking petition. Amended Compl. at 31-33.
On April 1, 1991, this Court denied the defendants' Motion to Dismiss, holding that the plaintiffs have standing to bring this action and stated a claim for relief. See Opinion filed April 1, 1991.
Summary judgment is awarded when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where there is a properly supported motion for summary judgment, the adverse party may not rest upon the "mere allegations or denials" of its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Lujan v. National Wildlife Federation, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177, 3188-89 (1990). The moving party is also entitled to summary judgment upon a showing that there is an absence of evidence supporting an essential element of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
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). An agency's refusal to initiate enforcement proceedings is discretionary and unreviewable, unless Congress has otherwise indicated. Id. at 838. Agency refusals to institute rulemaking proceedings, on the other hand, are subject to judicial review, but the scope of that review is extremely narrow, and the agency is entitled to a great deal of deference. American Horse Protection Ass'n v. Lyng, 258 App. D.C. 397, 812 F.2d 1, 4-5 (D.C. Cir. 1987). However, the reviewing court must nonetheless determine whether the agency's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accord with the law pursuant to 5 U.S.C. § 706(a)(2). Id. at 4.
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), the Supreme Court held that when a court reviews an agency's construction of a statute it administers, it is confronted with two questions. First is whether Congress has directly spoken to the precise question at issue. In determining the plain meaning of the statute, the court must look to the particular statutory language, and the language and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct. 1811, 6 U.S.P.Q.2D (BNA) 1897 (1988). If Congressional intent is clear, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress". Chevron at 842-3.
On the other hand, if "the court finds that the statute is silent or ambiguous with respect to the specific issue, the court does not simply impose its own construction on the statute . . . Rather . . . the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843 (footnotes omitted).
B. The Secretary's Exclusion of Birds, Rats, and Mice from the Definition of Animal and Refusal to Institute Rulemaking Proceedings Are Reviewable by This Court
The defendants argue that the language of the definitional statute shows that Congress committed absolute discretion to the USDA to determine the meaning of the term "animal," contending that the Act does not direct the Secretary to exercise his discretion in any particular way. The plain language of the statute does not support this view. The provision enumerates certain animals which are defined as animals under the Act, and provides that the definition also includes "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". 7 U.S.C. § 2132(g). As will be discussed in greater detail below, this provision limits the Secretary's discretion to determining whether a warm-blooded animal is used, or intended for use for those purposes specified in the definition. These criteria constitute standards by which the Secretary's determination can be judged. The statute does not confer upon the Secretary 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.
Therefore, the doctrine of Chaney does not insulate the exclusion of birds, rats, and mice from coverage under the Act from judicial review.
C. The Secretary's Construction of the Statute to Exclude Birds, Rats, and Mice from the Definition of Animal Is Arbitrary and Capricious
As outlined above, in reviewing the agency's construction of a statute, the court must first look to see if the agency's construction violates the plain meaning of the statute and clearly expressed Congressional intent. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 at ...