The opinion of the court was delivered by: Huvelle, District Judge.
The plaintiffs, a non-profit organization, a private firm and an
individual, allege that the defendants, the Secretary of the United
States Department of Agriculture ("USDA") and the Deputy Administrator
for Animal Care, Animal Plant Health Inspection Service, have violated
the mandate of the Animal Welfare Act ("AWA"), 7 U.S.C. § 2131, et
seq., by promulgating regulations that exclude birds, mice and rats from
the definition of "animal" under the Act. Defendants move to dismiss on
the grounds that all three plaintiffs lack standing to bring suit. In the
alternative, defendants move to dismiss based on the grounds that the
Secretary's exclusion of the three species is within his Congressionally
delegated discretion and is therefore not subject to judicial review.
Even if judicial review is appropriate, defendants argue that the Court
should still dismiss the case out of deference to the USDA's reasonable
interpretation of the AWA. Finally, defendants assert that the Court, in
its discretion, should stay this lawsuit as premature on the grounds that
the agency has under its consideration a petition brought by plaintiffs
herein to amend its regulations to include protection for birds, rats and
Based on a review of the pleadings, the record and the governing case
law, this Court concludes that: (1) defendants' challenge to plaintiff
Kristine Gausz's constitutional standing must be rejected as inconsistent
with this Circuit's en banc decision in Animal Legal Defense Fund, Inc.
v. Glickman, 154 F.3d 426 (D.C.Cir. 1998) (hereinafter "ALDF III"); (2)
the AWA does not grant to the USDA unreviewable discretion to determine
which animals are covered under the AWA; (3) there is insufficient
evidence at this stage to permit a determination as to whether
defendants' exclusion of these animals is reasonable; and (4) there is no
basis to stay the lawsuit as being premature since it is purely
speculative at this time whether any future agency action will change the
Congress enacted the AWA to ensure that "animals intended for use in
research facilities . . . are provided humane care and treatment."
7 U.S.C. § 2131 (1). The Act grants authority to the Secretary of
Agriculture to promulgate regulations for the treatment of animals
consistent with the stated purpose of the Act. 7 U.S.C. § 2143
(a)(1). At issue in this case is the Secretary's definition of "animal,"
which the plaintiffs contend is unlawful in light of the statutory
language of the AWA.
The AWA defines "animal" as:
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.
The USDA regulations further refine the definition of animal by
including the six specifically identified species, but specifically
excluding "[b]irds, rats of the genus Rattus and mice of the genus Mus
bred for use in research . . ." 9 C.F.R. § 1.1 (1990).*fn1 In 1990
two animal welfare organizations and two individuals brought suit
challenging the Secretary's exclusion of birds, mice and rats. The suit
alleged, as does the present action, that the Secretary's exclusion of
birds, mice and rats was unlawful given the Congressional mandate to
regulate "other such warm blooded mammal[s]." The suit was dismissed on
appeal based on lack of standing. See Animal Legal Defense Fund v. Espy,
23 F.3d 496 (D.C.Cir. 1994) (hereinafter "ALDF I") (vacating Animal Legal
Fund v. Madigan, 781 F. Supp. 797 (D.D.C. 1992) (Richey, J.)). On April
29, 1998, plaintiffs Alternative Research & Development Foundation and In
Vitro International Inc., and others filed a petition for rulemaking
requesting that the Secretary amend the regulations to include birds,
mice and rats. On January 28, 1999, USDA published the petition and
requested comments. 64 Fed.Reg. 4356 (1999). As of yet, there has been no
final agency decision on the plaintiffs' petition.
Plaintiffs subsequently filed this lawsuit, seeking declaratory and
injunctive relief. In response, defendants have filed the instant motion
The Court grants a motion to dismiss only when the "plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). In reaching this determination, the "complaint must be liberally
construed in favor of the plaintiff[s], who must be granted the benefit
of all inferences that can be derived from the facts alleged." Schuler
v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (quoting Jenkins v.
McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969)).
The Court has jurisdiction to review the challenged regulations under
§ 10(a) of the Administrative Procedure Act (APA). This section
provides judicial recourse to a plaintiff that is "adversely affected or
aggrieved by agency action within the meaning of a relevant statute."
5 U.S.C. § 702. The plaintiffs in this case claim that they are each
adversely affected by the USDA's failure to include birds, mice and rats
in the regulation's definition of "animal."
As a threshold matter, however, the plaintiffs must show that they have
standing to bring suit in order to survive defendants' motion to
The question of standing involves both constitutional limitations on
federal court jurisdiction as well as prudential limitations on its
exercise. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281
(1997). To meet the constitutional requirement of standing, a plaintiff
must show: (1) he has suffered an injury which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) there is a causal connection between the alleged injury
and conduct that is fairly traceable to the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be
redressed by a ...