United States District Court, D. Columbia.
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.
MEMORANDUM OPINION AND ORDER
JAMES E. BOASBERG, United States District Judge.
On December 16, 2013, this Court issued an Opinion that dismissed a lawsuit brought by People for the Ethical Treatment of Animals alleging that the United States Department of Agriculture had unlawfully failed to implement the Animal Welfare Act with respect to birds. The Court found that the actions PETA sought to compel USDA to take -- promulgating bird-specific regulations and enforcing the AWA against bird abusers -- were committed
to the agency's discretion by law. On January 13, 2014, PETA moved for reconsideration of the second part of that decision. PETA also asked, in the alternative, for leave to amend its Complaint. The government opposed both requests. Because the Court stands by its initial conclusions, and because leave to amend is not allowed at this juncture, it will deny PETA's Motion.
The background of this case is set forth fully in People for the Ethical Treatment of Animals v. United States Department of Agriculture, No. 13-976, 7 F.Supp.3d 1, 2013 WL 6571845 (D.D.C. Dec. 16, 2013). To recap briefly, in 2002, Congress amended the AWA to include birds as creatures deserving of legal protection. See Id. at *1. Since that time, however, USDA has not promulgated any animal-welfare regulations specific to birds -- as it has for, say, dogs, cats, and guinea pigs -- instead relying solely on the general regulations applicable to all covered animals. See Id. at *2. Nor has USDA enforced even those general regulations against bird abusers, with a few officials responding to complaints about the inhumane treatment of birds by claiming (incorrectly) that avians either are not regulated by USDA or do not fall under USDA jurisdiction. See id. Frustrated by USDA's continued inaction in promulgating bird-specific regulations and in enforcing the general regulations with respect to birds, PETA filed suit under the APA, asking the Court to compel these " agency action[s] unlawfully withheld." 5 U.S.C. § 706(1).
The Court dismissed both of PETA's claims. For the regulation-related claim, the Court explained that PETA could only compel USDA to take action that was required by law.
See PETA, 2013 WL 6571845, at *8. The AWA, however, left to USDA's discretion whether to promulgate specific standards for each covered animal or to instead rely on the general animal-welfare standards. See id. PETA has not asked the Court to reconsider this part of its decision.
For the enforcement-related claim, the Court noted that Section 701(a) of the APA barred judicial review of actions committed to agency discretion. See Id. at *5. In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court held that the quintessential example of such an action is the decision not to bring an enforcement action, and that such decisions should be considered " presumptively unreviewable" under the APA. Id. at 832. To overcome that presumption, a plaintiff must show that " the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 833.
PETA could not overcome that presumption in this case, but it did invoke an exception to the Chaney rule, previously articulated by the D.C. Circuit in Crowley Caribbean Transp. v. Pena, 37 F.3d 671, 308 U.S.App.D.C. 374 (D.C. Cir. 1994). There, the Court of Appeals held that while an agency's decision not to bring a specific enforcement action was presumably unreviewable, a plaintiff could challenge an agency's general policy of non-enforcement. See id. at 676-77. PETA claimed, accordingly, that USDA had a general policy not to enforce the AWA with respect to birds, and that its
claim was therefore judicially reviewable. See PETA, 2013 WL ...