Animal Legal Defense Fund, Inc. v. Glickman

• Citation: 154 F.3d 426
• Decision Date: 01 September 1998
• Docket Number: Nos. 97-5009,97-5031 and 97-5074,s. 97-5009
• Parties: , 29 Envtl. L. Rep. 20,202 ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellees, v. Daniel R. GLICKMAN, Secretary of Agriculture, et al., and National Association for Biomedical Research, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 426

154 F.3d 426

332 U.S.App.D.C. 104, 29 Envtl. L. Rep. 20,202

ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellees, v. Daniel R. GLICKMAN, Secretary of Agriculture, et al., and National Association for Biomedical Research, Appellants.

Nos. 97-5009, 97-5031 and 97-5074

United States Court of Appeals, District of Columbia Circuit.

Argued in banc May 13, 1998.

Decided Sept. 1, 1998.

Appeals from the United States District Court for the District of Columbia (No. 96cv00408).

Stephen W. Preston, Deputy Assistant Attorney General, United States Department of Justice, argued the cause for appellants Daniel R. Glickman, et al., with whom Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, United States Attorney, Eric H. Holder, Jr., United States Attorney at the time the briefs were filed, Michael Jay Singer and John S. Koppel, Attorneys, were on the briefs.

Harris Weinstein argued the cause for appellant National Association for Biomedical Research, with whom Michael G. Michaelson and Gail H. Javitt were on the briefs.

Katherine A. Meyer argued the cause for appellees, with whom Valerie J. Stanley was on the briefs.

Andrew L. Frey was on the briefs for amicus curiae Pharmaceutical Research and Manufacturers of America.

Leslie G. Landau, Susan Hoffman and Tiffany R. Hedgpeth were on the briefs for amicus curiae The Jane Goodall Institute for Wildlife Research, Education and Conservation.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting Opinion filed by Circuit Judge SENTELLE, with whom SILBERMAN, GINSBURG and KAREN LeCRAFT HENDERSON, Circuit Judges, join.

WALD, Circuit Judge:

The 1985 amendments to the Animal Welfare Act ("AWA") direct the Secretary of Agriculture to "promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." Pub.L. No. 99-198, § 1752, 99 Stat. 1354, 1645 (1985) (codified at 7 U.S.C. § 2143(a) (1994)). They further provide that such standards "shall include minimum requirements" for, inter alia, "a physical environment adequate to promote the psychological well-being of primates." Id. Pursuant to this authority, the United States Department of Agriculture ("USDA") issued regulations for primate dealers, exhibitors, and research facilities that included a small number of mandatory requirements and also required the regulated parties to "develop, document, and follow an appropriate plan for environment enhancement adequate to promote the psychological well-being of nonhuman primates. The plan must be in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian." 9 C.F.R. § 3.81 (1997). Although these plans must be made available to the USDA, the regulated parties are not obligated to make them available to members of the public. See id.

The individual plaintiffs, Roseann Circelli, Mary Eagan, and Marc Jurnove, ¹ challenge these regulations on the ground that they violate the USDA's statutory mandate under the AWA and permit dealers, exhibitors, and research facilities to keep primates under inhumane conditions. The individual plaintiffs allege that they suffered aesthetic injury during their regular visits to animal exhibitions when they observed primates living under such conditions. ² A divided panel of this court held that all of the plaintiffs lacked constitutional standing to pursue their claims. See Animal Legal Defense Fund, Inc. v. Glickman, 130 F.3d 464, 466 (D.C.Cir.1997). This court subsequently vacated that judgment and granted rehearing in banc.

We hold that Mr. Jurnove, one of the individual plaintiffs, has standing to sue. Accordingly, we need not pass on the standing of the other individual plaintiffs. See Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.Cir.1996) ("For each claim, if constitutional and prudential standing can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim."). We leave consideration of the merits of the individual plaintiffs' case to a future panel of this court to be selected by the usual means.

I. BACKGROUND

A. Marc Jurnove's Affidavit

Mr. Jurnove's affidavit is an uncontested statement of the injuries that he has suffered to his aesthetic interest in observing animals living under humane conditions. See Animal Legal Defense Fund, Inc. v. Glickman, 943 F.Supp. 44, 49 (D.D.C.1996) (granting summary judgment to plaintiffs on all legal claims except one that plaintiffs have not appealed; defendants did not allege any genuine disputes of material fact, but instead moved only to dismiss for lack of standing).

For his entire adult life, Mr. Jurnove has "been employed and/or worked as a volunteer for various human and animal relief and rescue organizations." Jurnove Affidavit p 3. "By virtue of [his] training in wildlife rehabilitation and [his] experience in investigating complaints about the treatment of wildlife, [he is] very familiar with the needs of and proper treatment of wildlife." Id. p 6. "Because of [his] familiarity with and love of exotic animals, as well as for recreational and educational purposes and because [he] appreciate[s] these animals' beauty, [he] enjoy[s] seeing them in various zoos and other parks near [his] home." Id. p 7.

Between May 1995 and June 1996, when he filed his affidavit, Mr. Jurnove visited the Long Island Game Farm Park and Zoo ("Game Farm") at least nine times. Throughout this period, and since as far back as 1992, the USDA has not questioned the adequacy of this facility's plan for the psychological well-being of primates.

Mr. Jurnove's first visit to the Game Farm, in May 1995, lasted approximately six hours. See id. While there, Mr. Jurnove saw many animals living under inhumane conditions. For instance, the Game Farm housed one primate, a Japanese Snow Macaque, in a cage "that was a distance from and not in view of the other primate cages." Id. p 14. "The only cage enrichment device this animal had was an unused swing." Id. Similarly, Mr. Jurnove "saw a large male chimpanzee named Barney in a holding area by himself. He could not see or hear any other primate." Id. p 8. Mr. Jurnove "kn[e]w that chimpanzees are very social animals and it upset [him] very much to see [Barney] in isolation from other primates." Id. The Game Farm also placed adult bears next to squirrel monkeys, although Jurnove saw evidence that the arrangement made the monkeys frightened and extremely agitated. See id. p 11.

The day after this visit, Mr. Jurnove began to contact government agencies, including the USDA, in order to secure help for these animals. Based on Mr. Jurnove's complaint, the USDA inspected the Game Farm on May 3, 1995. According to Mr. Jurnove's uncontested affidavit, however, the agency's resulting inspection report "states that [the USDA inspectors] found the facility in compliance with all the standards." Id. p 18. Mr. Jurnove returned to the Game Farm on eight more occasions to observe these officially legal conditions.

On July 17, 18, and 19, 1995, he found "virtually the same conditions" that allegedly caused him aesthetic injury during his first visit to the Game Farm in May. Id. p 20. For instance, Barney, the chimpanzee, and Samantha, the Japanese Snow Macaque, were still alone in their cages. See id. This time, Mr. Jurnove documented these conditions with photographs and sent them to the USDA. See id. pp 19-20. Nevertheless, the responding USDA inspectors found only a few violations at the Game Farm; they reported "nothing" about many of the conditions that concerned Mr. Jurnove and that he had told the agency about, such as "the fact that numerous primates were being housed alone" and the lack of adequate stimulation in their cages. Id. p 21.

Mr. Jurnove devoted two trips in August and one in September to "videotaping the conditions that the inspection missed," and on each trip he found that the inhumane conditions persisted. Id. pp 22-28. At the end of September, the USDA sent three inspectors to the Game Farm in response to Mr. Jurnove's continued complaints and reportage; they found violations, however, only with regard to the facility's fencing. See id. p 29.

Mr. Jurnove returned to the Game Farm once more on October 1, 1995. Indeed, he only stopped his frequent visits when he became ill and required major surgery. See id. p 30. After his health returned, Mr. Jurnove visited the Game Farm in April 1996, hoping to see improvements in the conditions that he had repeatedly brought to the USDA's attention. He was disappointed again; "the animals [were] in literally the same conditions as [he] had seen them over the summer of 1995." Id. p 33. Mr. Jurnove's resulting complaints prompted the USDA to inspect the Game Farm in late May 1996. For the fourth time, the agency found the facility largely in compliance, with a few exceptions not relevant to the plaintiffs' main challenge in this case. See id. p 42. In June 1996, Mr. Jurnove filed the affidavit that is the basis of his claim here. He concluded this affidavit by stating his intent to "return to the Farm in the next several weeks" and to "continue visiting the Farm to see the animals there." Id. p 43.

B. The Plaintiffs' Complaint

The plaintiffs' complaint elaborates a two-part legal theory based on the factual allegations in the individual plaintiffs' affidavits. First, the plaintiffs allege that the AWA requires the USDA to adopt specific, minimum standards to protect primates' psychological well-being, and the agency has failed to do so. See, e.g., First Amended Complaint p 97 ("In issuing final Part 3 regulations, USDA violated its statutory obligation [under 7 U.S.C. § 2143(a)(2)(B) ] to set...