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American Anti-Vivisection Society v. United States Department of Agriculture

United States District Court, District of Columbia

December 10, 2018



          TREVOR N. MCFADDEN, U.S.D.J.

         The timberdoodle-a member of the woodcock family-is the world's slowest flying bird, with a recorded speed of just five miles per hour during its aerial courtship displays. By contrast, the peregrine falcon can reach speeds of up to 240 miles per hour when stooping for prey. But even the timberdoodle seems falconesque compared with the U.S. Department of Agriculture. It announced its intent to extend the protections of the Animal Welfare Act (“AWA” or the “Act”) to birds in 2004, but fourteen years later it has yet to land on avian-specific standards. It has also declined to apply the Act's existing general regulations to birds.

         Seeking to compel action, the American Anti-Vivisection Society and the Avian Welfare Coalition (the “Plaintiffs”) sued the Department of Agriculture its Secretary, Dr. Sonny Perdue (collectively, the “Department”). Unfortunately for the Plaintiffs and their feathered friends, their flightpath has been tried and denied before. See People for the Ethical Treatment of Animals, Inc. v. United States Dep't of Agric., 7 F.Supp.3d 1 (D.D.C. 2013) (“PETA I”), aff'd, 797 F.3d 1087 (D.C. Cir. 2015) (“PETA II”). Following the precedent established by the D.C. Circuit in PETA II and the sound reasoning of PETA I, the Court will grant the Department's Motion to Dismiss.


         The AWA seeks to ensure that animals intended for use in research facilities, for exhibition purposes, or as pets are provided humane care and treatment. 7 U.S.C. § 2131(1). To this end, the Act requires the Department of Agriculture to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.” Id. § 2143(a). It also authorizes the Secretary to “make such investigations or inspections as he deems necessary” to determine whether the Department's standards have been violated. Id. § 2146(a).

         At first, the term “animal” included only “dogs, cats, monkeys (nonhuman primate mammals), guinea pigs, hamsters, and rabbits.” 7 U.S.C. § 2132(h) (1966). In 2002, Congress amended this definition to exclude birds, rats, and mice “bred for use in research.” 7 U.S.C. § 2132(g). The Department interpreted this change to mean that Congress intended to protect birds not bred for research, so it amended its regulations by “narrowing the scope of the exclusion” previously applicable to avian species. See Regulations and Standards for Birds, Rats, and Mice, 69 Fed. Reg. at 31, 537-38 (2004).

         To protect the animals covered by the Act, the Department has issued a set of general welfare standards. See 9 C.F.R. §§ 3.125 - 3.142. It has also promulgated regulations specific to dogs, cats, nonhuman primates, and other mammals. See id. §§ 3.1 - 3.118. Department personnel have suggested that they “do not believe that the general standards . . . would be appropriate or adequate to provide for the humane handling, care, treatment, and transportation of birds.” 69 Fed. Reg. at 31, 539. So in 2004, the agency announced an intent to establish “standards for birds not specifically excluded from coverage under the AWA.” Id.

         But nothing happened. Rather, the Department has repeatedly noted its intent to create bird-specific regulations, setting and missing several deadlines of these rules. See, e.g. 70 Fed. Reg. at 64, 104 (2005); 72 Fed. Reg. at 22, 266 (2007); 73 Fed. Reg. at 24, 640 (2008); 78 Fed. Reg. at 1526 (2013); Am. Compl. 17-21, ECF No. 15 (collecting citations). Without federal regulatory oversight, the Plaintiffs claim, birds at research facilities and zoos have been “denied food, water, . . . and sanitation, ” attacked and killed by feral dogs, and have died “from starvation or parasites.” Id. at 22.

         The Plaintiffs are not the first to raise this concern. A few years ago, PETA sued the Department over its failure to issue avian regulations. See PETA I, 7 F.Supp.3d at 6. The Department moved to dismiss, arguing that PETA lacked standing and that the Act did not require regulatory action. Id. at 7. Judge Boasberg concluded that PETA had standing to sue, but it had failed to state an APA claim upon which relief can be granted for three reasons. See id. at 9-15. First, the court found that individual Department decisions not to apply the general animal welfare standards to birds were committed to agency discretion by law. Id. at 11-15. Second, PETA had identified no concrete statement by the Department of a general policy not to regulate birds under the AWA. Id. And third, the text of the AWA did not require the Department to adopt bird-specific regulations. Id.

         PETA's arguments did not fly with the appellate court either. PETA II, 797 F.3d at 1089. The D.C. Circuit agreed that PETA had standing because the organization had “adequately shown that the [Department's] inaction injured its interests and, consequently, PETA has expended resources to counteract those injuries.” Id. at 1094. The circuit court also agreed with the district court that PETA had failed to state a claim, but for slightly different reasons. It found that “nothing in the AWA requires the [Department] to apply the general animal welfare standards to birds . . . before it has promulgated more appropriate bird-specific regulations.” Id. at 1098. It also determined that the Department had not failed to take any action that it was required by law to take. Id. at 1099. Thus, the D.C. Circuit concluded that “PETA failed to plausibly allege that the [Department's] decade-long inaction constitutes agency action unlawfully withheld” as required to establish an APA § 706(1) claim. Id. at 1098.

         Here, the Plaintiffs are animal welfare organizations that provide education and training on the humane treatment of animals, support animal sanctuaries, and create reports on the conditions of animals in regulated facilities. Id. at 3-12. They contend that the Department's failure to promulgate bird-specific regulations is unreasonable, unlawful, and arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). Thus, they seek court-ordered deadlines by which the Department must propose and finalize such rules. Id. at 25.

         As in the PETA litigation, the Department has moved to dismiss the Plaintiffs' claims. It argues that the Plaintiffs lack standing to sue, that it is not required by law to promulgate the regulations sought, and that it has not taken a final action reviewable by the Court. See Defs.' Mem. in Supp. of Mot. to Dismiss, ECF No. 16-1 (“Defs.' Mem.”).

         In short, the Plaintiffs believe that they are like PETA in that they have standing but unlike the organization in that their claims should survive a motion to dismiss. The Department, on the other hand, contends that this case is distinguishable from PETA II on standing ...

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