The opinion of the court was delivered by: James Robertson United States District Judge
The Animal Welfare Act, 7 U.S.C. § 2156, makes it unlawful to use the United States mail to advertise an animal or certain sharp instruments for use in "animal fighting ventures." The Postal Reorganization Act renders mail that is punishable under the Animal Welfare Act "nonmailable." 39 U.S.C. § 3001. Invoking those statutes, the Humane Society of the United States petitioned the United States Postal Service ("USPS") to declare nonmailable a monthly periodical entitled The Feathered Warrior. The Humane Society sought judicial review of USPS's denial of that petition, asserting that the denial was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706(2)(A).
In an order issued March 27, 2009 [dkt # 44], I denied without prejudice both the Humane Society's motion for summary judgment [dkt # 26] and USPS's cross-motion to dismiss or for summary judgment [dkt # 27], remanded the matter to the Postal Service for further consideration, and stayed proceedings in this court. The reasons for that order are set forth in this memorandum.
The Feathered Warrior to a few thousand subscribers every month,*fn1 charging a discounted periodical rate for postage. About two-thirds of the magazine's content is advertisements. The Humane Society alleges that more than ninety percent of the ads are criminal solicitations for the sale of fighting animals and weapons whose purchase is illegal under federal law and the laws of many states. There are also ads for the sale of cockfighting supplies, illegal steroids, and animal fighting venues (i.e., cockfighting clubs) in states where cockfighting is illegal; ads for illegal animal fights; and listings of champions in recent cockfights. Publications like The Feathered Warrior are recovered in seventy-five percent or more of law enforcement raids of illegal animal fights and are offered in evidence to prove criminal culpability.
The Humane Society is often called upon by law enforcement to provide care and shelter for fighting animals seized in raids of animal fighting ventures, and it expects that the calls for such service will continue. The costs to the Humane Society, for the equipment, transportation, veterinary supplies, and personnel needed to respond to such calls, usually on an emergency basis and without prior notice, run to hundreds of thousands of dollars.
The Humane Society alleges that USPS's continuing willingness to deliver The Feathered Warrior violates the Postal Reorganization Act's requirement that material in violation of the Animal Welfare Act be declared nonmailable. The Humane Society also asserts that the circulation of The Feathered Warrior violates USPS's own Domestic Mail Manual ("DMM").
The Animal Welfare Act states in relevant part that: (c) . . . It shall be unlawful for any person to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture except as performed outside the limits of the States of the United States. (d) . . . Notwithstanding the provisions of subsection (c) of this section, the activities prohibited by such subsection shall be unlawful with respect to fighting ventures involving live birds only if the fight is to take place in a State where it would be in violation of the laws thereof. (e) . . . It shall be unlawful for any person to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture.
7 U.S.C. § 2156 (as amended on June 18, 2008).*fn2 The language of the DMM closely tracks the language of the Animal Welfare act.*fn3
The Postal Reorganization Act makes "[m]atter the deposit of which in the mails is punishable under . . . section 26 of the Animal Welfare Act nonmailable." 39 U.S.C. § 3001(a) (emphasis added).
On April 26, 2006, the Humane Society petitioned USPS with the request that The Feathered Warrior be declared nonmailable and that its periodical mailing privileges be revoked. By letter dated June 5, 2006, USPS declined to take the requested action, asserting that under the Animal Welfare Act and the DMM, "bird fighting magazines are generally mailable; however, advertisements of bird fights are nonmailable if the fights are to take place in states that have outlawed the practice."
On May 3, 2007, the Animal Welfare Act was amended to expressly bar the mailing of "commercial speech for purposes of promoting or in any other manner furthering an animal fighting venture." 7 U.S.C. § 2156. On that same day, the Humane Society requested that USPS reconsider its prior decision regarding the mailability of The Feathered Warrior. On June 26, 2007, USPS again denied the Humane Society's request, declaring that the amendment to the Animal Welfare Act "did not alter its direct application to the Postal Service."
USPS's position in response to the Humane Society's suit is that its responses to the Humane Society's mailings were not final agency action or the result of judicially reviewable "proceedings"; that indeed USPS has no "proceedings" about mailability that can be initiated by anyone but a mailer unless they concern lottery matter, false advertising matter, or articles and substances, see 39 C.F.R. Parts 952-953; and that § 3001(m) of the Postal Reorganization Act, which provides that "proceedings concerning the mailability of matter . . . shall be conducted in accordance with chapters 5 and 7 of title 5" (the Administrative Procedure Act), has no application to the Humane Society's petition or to USPS's rejection of that petition.
On June 18, 2008, after this suit was filed, § 2156 was amended again, inserting an express ban on mailing "advertising" materials for fighting animals and cockfighting weapons. 7 U.S.C. § 2156.
A plaintiff bringing a claim of unlawful government action must satisfy all three of the Article ...