United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff: Delcianna J. Winders, PETA Foundation, Washington, DC.
For UNITED STATES DEPARTMENT OF AGRICULTURE, THOMAS J. VILSACK, in his official capacity as Secretary of the United States Department of Agriculture, Defendants: Hector G. Bladuell, LEAD ATTORNEY, U.S. DEPARMENT OF JUSTICE, Civil Division, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
The nation's circle of concern expanded a little wider in 2002 when Congress amended the Animal Welfare Act to include birds as creatures deserving of legal protection. The agency charged with implementing the Act - the United States Department of Agriculture - has, however, so far failed to defend the country's feathered friends, both by not enforcing the Act against bird abusers and by not promulgating regulations specific to the mistreatment of avians. People for the Ethical Treatment of Animals, Inc., a non-profit organization dedicated to preventing cruelty to animals, has brought this lawsuit against USDA and its Secretary in order to compel the agency to follow through on the 2002 amendment and put a stop to the inhumane treatment of birds. Specifically, PETA wants USDA to immediately begin enforcing the AWA against entities that mistreat birds and to publish new animal-welfare regulations specific to birds' unique needs.
Defendants now move to dismiss the Complaint. They claim that PETA lacks standing to bring this case and that the AWA commits these issues to USDA's discretion. Although PETA presents some strong arguments, the Court ultimately finds that the AWA gives USDA complete discretion on decisions here relating to enforcement and promulgation of animal-specific regulations. The Court thus must grant Defendants' Motion.
Congress enacted the Animal Welfare Act in 1966 in order " to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment" and " to assure the humane treatment of animals during transportation in commerce." 7 U.S.C. § 2131(1) & (2). The Act therefore instructs the Secretary of USDA both to " promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors," id. § 2143(a)(1), and to " make such investigations or inspections as he deems necessary to determine whether any [person or entity subject to the AWA] has violated or is violating" the AWA or its implementing regulations. Id. § 2146(a).
The AWA, however, does not protect every subject of the animal kingdom. Before 2002, the Act defined the term " animal" to include " any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warmed-blooded animal, as the Secretary may determine is being used, or is intended for use for research, teaching, testing, experimentation, or exhibition purposes, or as a pet." Animal Welfare; Definition of Animal, 69 Fed. Reg. 31,513, 31,513 (June 4, 2004) (citing 7 U.S.C. § 2132(g)). USDA therefore concluded that birds were excluded from coverage under the AWA and limited the scope of its regulations accordingly. See Animal Welfare; Regulations and Standards for Birds, Rats, and Mice, 69 Fed. Reg. 31,537, 31,537 (June 4, 2004).
In 2002, however, Congress amended the statutory definition of " animal" to specifically exclude " birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research." 7 U.S.C. § 2132(g) (emphasis added). USDA read this new language to mean that Congress intended to include within the definition of " animal" birds not bred for research, and so the agency followed suit by amending its own regulations to " narrow the scope of the exclusion for birds to only those birds bred for use in research." Regulations and Standards for Birds, Rats, and Mice, 69 Fed. Reg. at 31,537. The parties agree that non-research birds are now protected by the AWA. See Mot. at 3-4; Opp. at 4.
Pursuant to the Act, USDA has also promulgated regulations specific to certain creatures. For instance, dogs, cats, nonhuman primates, guinea pigs, hamsters, rabbits, and marine mammals are all governed by their own unique regulatory standards. See 9 C.F.R. § § 3.1-3.118. Other animals covered by the AWA - from aardvarks to zebras - are protected by a set of general standards. See id. § § 3.125-3.142. These rules ensure that the animals are treated humanely by setting minimum standards for matters such as veterinary care, potable water, housing, and lighting. See generally id.
USDA has not, so far, promulgated any regulations specific to birds. In 2004, the agency announced that it " intend[ed] to extend enforcement of the AWA to birds," but that " before [it could] begin enforcing the AWA with respect to . . . birds, [it] believe[d] it is necessary to consider what regulations and standards are appropriate for them." Regulations and Standards for Birds, Rats, and Mice, 69 Fed. Reg. at 31,538-39. The agency thus sought " comments from the public to aid in the development of appropriate standards for birds." Id. at 31,539. In response, it received over 7,000 comments on the subject, see Mot., Exh. 1 (Declaration of Johanna Briscoe), ¶ 6, and it has consulted with veterinarians, economists, industry members, related government agencies, and other stakeholders in order to develop a
proposed set of regulations specific to avians. See id., ¶ ¶ 8-11. But in the nine years since the comment period closed, no such regulations have issued. Instead, with surprising regularity, the agency has repeatedly set, missed, and then rescheduled deadlines for the publication of proposed bird-specific regulations. See Opp. at 6-7 (collecting citations).
Even without specific regulations to protect them, birds, in theory, remain covered by USDA's general animal-welfare regulations. Yet, according to PETA, USDA has failed to enforce even those general regulations with respect to birds. Despite USDA's official position that avians are protected by the AWA, USDA officials have repeatedly responded to complaints about the inhumane treatment of birds by claiming either that they are not regulated by USDA or that they do not fall under USDA jurisdiction. See Opp., Att. 2 (Declaration of Jeffrey S. Kerr), ¶ 7; see also Opp., Exhs. 1-5 (USDA documents). Indeed, USDA is not even on the same page as its own FOIA Director, who answered a request for information related to the agency's investigations into avian mistreatment by explaining that " Agency employees conducted a thorough search of their files and advised our office that birds are not being regulated." Opp., Exh. 7 (FOIA Letter).
PETA is understandably frustrated by these misrepresentations and USDA's continued inaction in regard to the inhumane treatment of birds. The group cites a number of disturbing incidents that have gone unpunished by USDA, including zoos' failure to protect flamingoes and waterfowl in their care from fatal attacks by feral dogs and pet stores' allowing hundreds of their parakeets to die from starvation and disease. See, e.g., Kerr Decl., ¶ 7(b)-(d). PETA thus filed this lawsuit, seeking to compel the agency to enforce the existing general animal-welfare regulations against bird abusers and to promulgate new regulations specific to birds. See Compl. at 7. Defendants now move to dismiss the case.
II. Legal Standard
In evaluating Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) and 12(b)(1), the Court must " treat the complaint's factual allegations as true." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App. D.C. 268 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App. D.C. 23 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App. D.C. 270 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendants' Motion under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (" [I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." ); Walker v. Jones, 733 F.2d 923, 925-26, 236 U.S.App. D.C. 92 (D.C. Cir. 1984) (same). The Court need not accept as true, however, " a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178, 193, 372 U.S.App. D.C. 335 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)).
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24, 343 U.S.App. D.C. 386 (D.C. Cir. ...