Animal Legal Defense Fund, Inc. v. Espy, Nos. 93-5127 and 93-5140

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtKAREN LeCRAFT HENDERSON; MIKVA
PartiesANIMAL LEGAL DEFENSE FUND, INC., et al., Appellees, v. Mike ESPY, Secretary, United States Department of Agriculture, et al., Appellants.
Decision Date22 July 1994
Docket NumberNos. 93-5127 and 93-5140

Page 720

29 F.3d 720
308 U.S.App.D.C. 74
ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellees,
v.
Mike ESPY, Secretary, United States Department of
Agriculture, et al., Appellants.
Nos. 93-5127 and 93-5140.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 12, 1994.
Decided July 22, 1994.

Page 721

On Appeal from the United States District Court for the District of Columbia (Civil Action No. 91-1328).

Robert V. Zener, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for the appellants in No. 93-5127. On brief were Frank W. Hunger, Asst. Atty. Gen., U.S. Dept. of Justice, and Eric H. Holder, Jr., U.S. Atty., Washington, DC. Thomas W. Millet and Henry D. Gabriel, Attys., U.S. Dept. of Justice, Washington, DC, entered an appearance.

Harris Weinstein, Washington, DC, argued the cause for the appellants in No. 93-5140. On brief was Michael P. Socarras, Washington, DC.

Valerie J. Stanley, Rockville, MD, argued the cause for the appellees in Nos. 93-5127 and 93-5140.

On the brief were Robert H. Loeffler, Ellen E. Deason, Washington, DC, Stephen S. Dunham, Roxanne Jensen, Denver, CO, and Sheldon E. Steinbach, Washington, DC, for amici curiae urging the district court order should be vacated for lack of jurisdiction.

Before MIKVA, Chief Judge; WILLIAMS and HENDERSON, Circuit Judges.

Page 722

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Concurring opinion filed by Chief Judge MIKVA.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellants, various government agencies and officials sued below and intervenor National Association for Biomedical Research, seek reversal of a district court decision setting aside United States Department of Agriculture (USDA) regulations promulgated under the Federal Laboratory Animal Welfare Act, 7 U.S.C. Secs. 2131 et seq., (Act). 813 F.Supp. 882. Because we conclude the appellees lack standing to challenge the regulations, we vacate the judgment of the district court and remand with directions to dismiss the action.

The primary purpose of the Act is to ensure the humane care and treatment of various animals used in research or for exhibition or kept as pets. 7 U.S.C. Sec. 2131. To this end, the Act requires, inter alia, that the Secretary of Agriculture "promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." Id. Sec. 2143(a)(1). Those standards are to

include minimum requirements--

(A) for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species where the Secretary finds necessary for humane handling, care, or treatment of animals; and

(B) for exercise of dogs, as determined by an attending veterinarian in accordance with general standards promulgated by the Secretary, and for a physical environment adequate to promote the psychological well-being of primates.

Id. Sec. 2143(a)(2). To enforce the regulations the Act requires the chief executive officer of every "research facility" to appoint an oversight committee of at least three individuals who "possess sufficient ability to assess animal care, treatment, and practices in experimental research as determined by the needs of the research facility and shall represent society's concerns regarding the welfare of animal subjects used at such facility." Id. Sec. 2143(b)(1). Each committee must include one doctor of veterinary medicine and one member unaffiliated with the facility who is "to provide representation for general community interests in the proper care and treatment of animals." Id. "[T]o ensure compliance with the provisions [of the Act] to minimize pain and distress to animals," each committee is required to inspect its facility semiannually, reviewing "practices involving pain to animals" and "the condition of animals." Id. Sec. 2143(b)(3). After each inspection, the committee must file "an inspection certification report" which documents "reports of any violation of the standards promulgated, or assurances required, by the Secretary, including any deficient conditions of animal care or treatment, any deviations of research practices from originally approved proposals that adversely affect animal welfare, any notification to the facility regarding such conditions, and any corrections made thereafter." Id. Sec. 2143(b)(4).

The appellees here challenged regulations promulgated under Sec. 2143 which leave it to each individual research facility to (1) adopt "written standard procedures" specifying the "frequency, method, and duration" for exercising confined dogs, see 9 C.F.R. Sec. 3.8, (2) develop its own plans for housing nonhuman primates, see 9 C.F.R. Secs. 3.80, 3.81, and (3) determine whether dogs, cats and primates may be confined in "innovative" enclosures that do not squarely meet the regulations' required dimensions but provide "sufficient volume of space and the opportunity to express species-typical behavior," see 9 C.F.R. Secs. 3.6(d), 3.80(c). In each case, the appellees objected on the ground that the regulations failed to include the statutorily mandated "minimum requirements" and instead impermissibly delegated promulgation of those standards to the individual research facilities. On cross-motions for summary judgment, the district court held that each of the challenged regulations was defective as alleged, issued a declaratory judgment to that effect and ordered a remand to the USDA for promulgation of new regulations in accordance with

Page 723

the Administrative Procedure Act (APA). 1 Without reaching the merits of the appellees' challenges or the district court's resolution of them, we conclude the action should have been dismissed below for lack of standing. We reach this conclusion relying in large part on the court's recent opinion in Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 498 (D.C.Cir.1994), (ALDF ), in which some of the same parties challenged another USDA regulation promulgated under the Act.

As ALDF made clear, the standing inquiry entails two separate components, one constitutional, under article III of the United States Constitution, and one prudential, under the APA:

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).

Id. at 498; see also Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 281-82 (D.C.Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989). The regulations here were challenged by six parties: (1) William Strauss, Esq., the "community interest" member of the oversight committee for the Health Science...

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34 practice notes
  • Phelps v. Powers, No. 1:13–cv–00011.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • December 3, 2014
    ...constitutional or prudential, is a jurisdictional issue which cannot be waived or conceded.” See Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) ; see also Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (stating that the question of st......
  • Am. for Safe Access v. Drug Enforcement Admin., No. 11–1265.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 11, 2013
    ...whether a party has established standing is for the court—not the parties—to decide. See, e.g., Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) (“Standing ... is a jurisdictional issue which cannot be waived or conceded.”); cf. Am. Library Ass'n, 401 F.3d at 49......
  • UPS Worldwide Forwarding, Inc. v. U.S. Postal Service, No. 94-7423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 15, 1995
    ...in this context might give careless parties power to override congressional intent."); Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) ("Standing, whether constitutional or prudential, is a jurisdictional issue which cannot be waived or conceded."); Thompson v.......
  • Lewis v. Alexander, No. 11–3439.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 20, 2012
    ...Cmty. First Bank v. Nat'l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir.1994) (not waivable); Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) (not waivable); and Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir.1994) (not waivable) with Bd. of Miss. L......
  • Request a trial to view additional results
34 cases
  • Phelps v. Powers, No. 1:13–cv–00011.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • December 3, 2014
    ...constitutional or prudential, is a jurisdictional issue which cannot be waived or conceded.” See Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) ; see also Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (stating that the question of st......
  • Am. for Safe Access v. Drug Enforcement Admin., No. 11–1265.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 11, 2013
    ...whether a party has established standing is for the court—not the parties—to decide. See, e.g., Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) (“Standing ... is a jurisdictional issue which cannot be waived or conceded.”); cf. Am. Library Ass'n, 401 F.3d at 49......
  • UPS Worldwide Forwarding, Inc. v. U.S. Postal Service, No. 94-7423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 15, 1995
    ...in this context might give careless parties power to override congressional intent."); Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) ("Standing, whether constitutional or prudential, is a jurisdictional issue which cannot be waived or conceded."); Thompson v.......
  • Lewis v. Alexander, No. 11–3439.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 20, 2012
    ...Cmty. First Bank v. Nat'l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir.1994) (not waivable); Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n. 2 (D.C.Cir.1994) (not waivable); and Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir.1994) (not waivable) with Bd. of Miss. L......
  • Request a trial to view additional results

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