Animal Legal Defense Fund, Inc. v. Espy

• Decision Date: 10 August 1994
• Docket Number: No. 92-5105,92-5105
• Citation: 23 F.3d 496,306 U.S. App. D.C. 188
• Parties: ANIMAL LEGAL DEFENSE FUND, INC., et al. v. Mike ESPY, in his Official Capacity as Secretary, United States Department of Agriculture, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 496

23 F.3d 496

306 U.S.App.D.C. 188

ANIMAL LEGAL DEFENSE FUND, INC., et al. v. Mike ESPY, in his Official Capacity as Secretary, United

States Department of Agriculture, et al., Appellants.

No. 92-5105.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 8, 1993.

Decided May 20, 1994.

Rehearing and Suggestion for

Rehearing In Banc Denied

Aug. 10, 1994.

Appeal from the United States District Court for the District of Columbia, 90cv01872.

Raymond W. Fullerton, Asst. Gen. Counsel, U.S. Dept. of Agriculture, argued the cause, for appellants. With him on the briefs was James Michael Kelly, Associate Gen. Counsel, U.S. Dept. of Agriculture.

Valerie J. Stanley, argued the cause and filed the brief for appellees. Kathleen V. Yurchak, entered an appearance, for amicus curiae Institute for Animal Rights Law, International Soc. for Animal Rights and Citizens for Animals.

Before WILLIAMS, SENTELLE, and HENDERSON, Circuit Judges.

Opinion for Court filed by Circuit Judge SENTELLE.

Opinion concurring in part and dissenting in part filed by Circuit Judge STEPHEN F. WILLIAMS.

SENTELLE, Circuit Judge:

Two individuals and two organizations jointly brought suit against the Secretary of Agriculture under the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 551 et seq. (1988). The plaintiffs alleged that one of the Secretary's regulations violates the Animal Welfare Act, 7 U.S.C. Sec. 2131 et seq. (1988), and that the Secretary's refusal to initiate a rulemaking to correct the regulation was unlawful. On the Secretary's motion to dismiss, the court held that plaintiffs had standing to sue and that the regulation was reviewable under 5 U.S.C. Sec. 706(2)(A). See Animal Legal Defense Fund v. Yeutter, 760 F.Supp. 923 (D.D.C.1991). The court later granted plaintiffs' motion for summary judgment on the merits. See Animal Legal Defense Fund v. Madigan, 781 F.Supp. 797 (D.D.C.1992). The Secretary now appeals.

After a thorough review of the record, it appears that none of the plaintiffs can demonstrate both constitutional standing to sue and a statutory right to judicial review under the APA. We therefore vacate the district court's judgment and remand the case with directions to dismiss.

I.

In 1966 Congress enacted the Animal Welfare Act ¹ to improve the treatment of certain animals. In its original form the Act protected "live dogs, cats, monkeys (nonhuman primate mammals), guinea pigs, hamsters, and rabbits." 7 U.S.C. Sec. 2132(h) (Supp. II 1965-66). Four years later, Congress expanded the reach of the Act, adding dead animals and a catch-all phrase--the subject of dispute here. The controlling definition now reads:

The term "animal" means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet....

Pub.L. No. 91-579, Sec. 3, 84 Stat. 1560, 1561 (1970) (emphasis added), codified at 7 U.S.C. Sec. 2132(g). The new legislation qualified this expansion with various exclusions, e.g., for horses not used for research, farm animals used for food, and livestock used to improve nutrition, breeding or production efficiency. Id.

After the 1970 amendments and an extensive rulemaking, the Department issued the regulation that is now contested. The Secretary defined "animal" essentially as it was defined in the statute except that the regulation expressly excluded "birds, aquatic animals, rats and mice." 36 Fed.Reg. 24,917, 24,919 (1971). ² In the late 1980s the Secretary re-examined the regulatory definition but adhered to that exclusion. 54 Fed.Reg. 10,822, 10,823-24 (1989).

In 1989 two of the plaintiff-appellees, the Animal Legal Defense Fund and the Humane Society of the United States, requested that the Secretary again conduct a rulemaking to re-examine the exclusion. The Department refused, relying, it said, on the Act, its legislative history, and considerations of "the manpower, funds, and other resources available to administer effectively our animal welfare program." Letter from James W. Glosser (June 8, 1990), Joint Appendix ("J.A.") at 46. These associations, joined by two individual members, sued to enjoin the Secretary from excluding birds, mice and rats and to set aside the denial of their rulemaking petition.

II.

To secure constitutional standing the plaintiffs must show injury in fact that is fairly traceable to the defendant's action and redressable by the relief requested. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 759-60, 70 L.Ed.2d 700 (1982). To secure judicial review under the APA, they must show that the injuries they assert fall within the "zone of interests" of the relevant statute. See Clarke v. Securities Industry Ass'n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987).

On appeal, the Secretary has elected not to challenge the District Court's rulings on justiciability. See Appellant's Br. at 9 n. 5, n. 6. That waiver cannot satisfy the constitutional standing requirements, for Article III limits federal jurisdiction and "every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it." FW/PBS, Inc., v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990) (internal quotations and citations omitted).

Nor does the Secretary's choice foreclose application of the "zone of interests" test. That judicially crafted doctrine serves the institutional obligations of the federal courts, rather than being a privilege of the parties that they may conclusively waive. The doctrine also embodies the prudential concern that federal courts should not adjudicate generalized grievances. See, e.g., National Fed'n of Fed. Employees v. Cheney, 883 F.2d 1038, 1047 (D.C.Cir.1989), cert. denied, 496 U.S. 936, 110 S.Ct. 3214, 110 L.Ed.2d 662 (1990); Hazardous Waste Treatment Council v. EPA ("HWTC II "), 861 F.2d 277, 287 (D.C.Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989); Haitian Refugee Center v. Gracey, 809 F.2d 794, 812-13 (D.C.Cir.1987). Thus we have examined legislative materials bearing on the zone of interests test even though the parties and the court below assumed the test was satisfied, see Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1010 (D.C.Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978), and have found it dispositive in a case where the parties had not briefed standing until we requested them to do so. See HWTC II, 861 F.2d at 280.

The appellees contend that Air Courier Conference v. American Postal Workers' Union, 498 U.S. 517, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991), makes the waiver conclusive. In that case the Postal Service argued in the Supreme Court that the statute that formed the basis of the complaint in fact precluded judicial review of the Service's actions. The argument had neither been raised in the lower courts nor included in the questions on which certiorari was granted. The Court declined to decide the issue, observing that "[t]he judicial review provisions of the APA are not jurisdictional, so a defense based on exemption from the APA can be waived by the Government." 498 U.S. at 523 n. 3, 111 S.Ct. at 917 n. 3 (citation omitted).

That statement refers to waiver in the routine sense that, save for "jurisdictional" questions, an appellate court may decline to consider a claim neither pressed nor passed upon below. See, e.g., Tennessee v. Dunlap, 426 U.S. 312, 316 n. 3, 96 S.Ct. 2099, 2101 n. 3, 48 L.Ed.2d 660 (1976). It does not establish that such claims may not be considered. See United States Nat. Bank of Or. v. Independent Ins. Agents of America, --- U.S. ----, ----, 113 S.Ct. 2173, 2178, 124 L.Ed.2d 402 (1993) ("a court may consider an issue antecedent to and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief"). In the present case, moreover, the constitutional and prudential requirements of standing were in fact litigated in the district court, a decision was given, and the judgment was appealed; nothing prevents this Court from reviewing the district court's authority to pass judgment in the first instance.

Appellees comprise two individual plaintiffs and two organizations. The individuals are Dr. Patricia Knowles and William Strauss; the organizations are the Animal Legal Defense Fund ("the Fund") and the Humane Society of the United States ("the Society"). We will consider their claims of standing seriatim.

A.

Knowles is a psychobiologist who worked from 1972 to 1988 in laboratories covered by the Animal Welfare Act but is not presently so employed. ³ See Knowles Affidavit, J.A. at 91-95. Knowles has used rats and mice as a researcher at various institutions registered under the Act. She alleges that the agency's failure to define rats and mice as animals rendered her "unable to effectively control the care and treatment these institutions afforded the rats and mice she used"; that "the inhumane treatment of these animals will directly impair her ability to perform her professional duties as a psychobiologist"; and that "she will be required to spend time and effort in an attempt to convince the facility of the need for humane treatment." Plaintiff's Amended Complaint ("Complaint"), J.A. at 189-91.

We need not decide whether such aesthetic and professional injuries are sufficiently concrete to create a justiciable claim, for Knowles has failed to demonstrate an additional element of constitutional standing: the requirement that the plaintiff's injury be presently suffered or imminently threatened....