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June 21, 2000


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 mice.

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 status quo.


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.

7 U.S.C. § 2132 (g).

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 Defense 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 to dismiss.


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 dismiss.


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 ...

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