Animal Legal Defense Fund v. Glickman, 97-5031

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
PartiesAnimal Legal Defense Fund, Inc., et al.,Appellees v. Daniel R. Glickman, In his official capacity as Secretary, United States Department of Agriculture, et al.,Appellants National Association for Biomedical Research, AppelleeConsolidated withUnited States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decision Date01 February 2000
Docket Number97-5031

Animal Legal Defense Fund, Inc., et al.,Appellees
v.
Daniel R. Glickman, In his official capacity as Secretary, United States Department of Agriculture, et al.,Appellants
National Association for Biomedical Research, Appellee

No. 97-5031 Consolidated with Nos. 97-5009 and 97-5074

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 29, 1999

Decided February 1, 2000

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

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellants in Glickman, et al. in 97-5031. With him on the briefs were David W. Ogden, Acting Assis-

tant Attorney General, Michael Jay Singer, Attorney, and Wilma A. Lewis, U.S. Attorney.

Harris Weinstein argued the cause for appellant National Association for Biomedical Research in No. 97-5009. Michael G. Michaelson was with him on the brief. Sheldon E. Steinbach, Robert H. Loeffler and Stephen S. Dunham were on the brief for amici curiae The Association of American Medical Colleges, The American Council on Education and The Pharmaceutical Research and Manufacturers Association of America.

Katherine A. Meyer and Valerie J. Stanley filed the briefs for appellants in No. 97-5074.

Katherine A. Meyer argued the cause for appellees in No. 97-5009. With her on the brief was Valerie J. Stanley.

Harris Weinstein and Michael G. Michaelson were on the brief for the National Association for Biomedical Research as appellee in No. 97-5074.

Leslie G. Landau was on the brief for amicus curiae The Jane Goodall Institute for Wildlife Research, Education and Conservation.

Before: Williams, Sentelle, Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Williams.

Williams, Circuit Judge:

In Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (en banc), we held that plaintiff Marc Jurnove has standing to challenge regulations promulgated by the Secretary of Agriculture in 1991 that purport to set "minimum requirements ... for a physical environment adequate to promote the psychological well-being of primates." 7 U.S.C. s 2143(a)(1)-(2). The en banc court left untouched the panel's decision that Animal Legal Defense Fund lacked standing. 154 F.3d at 428-29 n.3.The court referred the merits--the question whether the Secretary's regulations satisfy that statutory mandate and the Administrative Procedure Act--to a future panel. Id. at 429, 445. Finding that the regulations do meet the statutory and APA tests, we reverse the district court's decision to the contrary.

* * *

In 1985 Congress passed the Improved Standards for Laboratory Animals Act, Pub. L. No. 99-198, 99 Stat. 1645, amending the Animal Welfare Act of 1966. See 7 U.S.C. s 2131 et seq. The 1985 amendments directed the Secretary of Agriculture to promulgate "standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." Id. s 2143(a)(1). The Act specified that among these must be "minimum requirements ... for a physical environment adequate to promote the psychological well-being of primates."Id. s 2143(a)(1)-(2).

There are over 240 species of non-human primates, ranging from marmosets of South America that are a foot tall and weigh less than half a pound to gorillas of western Africa standing six feet tall and weighing up to 500 pounds. It proved no simple task to design regulations to promote the psychological well-being of such varied species as they are kept and handled for exhibition and research. Notice of intent to issue regulations was first published in the Federal Register in 1986, 51 Fed. Reg. 7950 (1986), but the Secretary did not publish proposed regulations until 1989. 54 Fed. Reg. 10897 (1989). After receiving a flood of comments (10,686 timely ones, to be precise), the Secretary reconsidered the regulations and published new proposed regulations in 1990.55 Fed. Reg. 33448 (1990). After receiving another 11,392 comments, he adopted final regulations in 1991. 56 Fed. Reg. 6426 (1991); 9 CFR s 3.81.

The final regulations consist of two separate modes of regulation, typically known as engineering standards and performance standards. The former dictate the required means to achieve a result; the latter state the desired outcomes, leaving to the facility the choice of means. See 56 Fed. Reg. at 6427 (discussing engineering and performance standards generally). The Secretary identifies five guidelines that he considers engineering standards, which in substance require as follows: (1) restraints are generally prohibited subject to certain exceptions as determined by the attending veterinarian or the research proposal, 9 CFR s 3.81(d); (2) primary enclosures must be "enriched" so that primates may exhibit their typical behavior, such as swinging or foraging, id. s 3.81(b); (3) certain types of primates must be given special attention, including infants, young juveniles, individually housed primates, and great apes over 110 pounds, again in accord with "the instructions of the attending veterinarian," id. s 3.81(c); (4) facilities must "address the social...

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