Animal Legal Fund v.Glickman, Nos. 97-5031

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWilliams
Parties(D.C. Cir. 2000) 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
Decision Date01 February 2000
Docket NumberNos. 97-5031,97-5009 and 97-5074

Page 229

204 F.3d 229 (D.C. Cir. 2000)
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
Nos. 97-5031, 97-5009 and 97-5074
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 29, 1999
Decided February 1, 2000

Page 230

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 Assistant 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. 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

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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. 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. 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. 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 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 3.81(d); (2) primary enclosures must be "enriched" so that primates may exhibit their typical behavior, such as swinging or foraging, id. 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. 3.81(c); (4) facilities must "address the social needs of nonhuman primates ... in accordance with currently accepted professional standards ... and as directed by the attending veterinarian," but they may individually house primates under conditions further specified in the regulations, id. 3.81(a); and (5) minimum cage sizes are set according to the typical weight of different species, id. 3.80(b)(2)(i).

To implement these guidelines and to promote the psychological well-being of the primates, facilities must develop performance plans:

Dealers, exhibitors, and research facilities must 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 orreference guides, and as directed by the attending veterinarian. This plan must be made available to APHIS[Animal and Plant Health Inspection Service] upon re-quest, and, in the case of research facilities, to officials of any pertinent funding agency.

Id. 3.81.

Jurnove primarily maintains that nothing about these regulations establishes

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"minimum requirements ... for a physical environment adequate to promote the psychological well being of primates," and that the Secretary's use of performance plans and his apparent deference to on-site veterinarians amount to an impermissible delegation of his legal responsibility.

The district court agreed. Animal Legal Defense Fund v. Glickman ("ALDF"), 943 F. Supp. 44 (D.D.C. 1996). It held that the regulation "fails to set standards," by which the district court meant engineering standards, and that "the regulation completely delegates the establishment of such standards to the regulated entities" because "[a]t best, the regulation refers these entities to the direction of their attending veterinarians--who are not under the control of the agency." Id. at 59. The district court also concluded that the Secretary had a duty to require social housing of primates given a finding by the Secretary that "[i]n general, housing in groups promotes psychological well-being more assuredly than does individual housing." Id. at 60 (quoting 56 Fed. Reg. at 6473). As the court read the regulation "the agency delineates only when social grouping might not be provided," and therefore "the regulation does not contain any minimum requirement on a point recognized by the agency itself as critical to the psychological well-being of primates." Id.

* * *

Jurnove argues that the plain language of the statute--the Secretary shall establish "minimum requirements ... for a physical environment adequate to promote the psychological well-being of primates"--requires that the Secretary spell out exactly how primates may and may not be housed and handled (i.e., engineering standards), or at least spell out the "minimum requirements" in this manner. The Secretary's emphatic first response is: we did.

Jurnove consistently reads the regulations, as did the district court, as if the only "requirement" of the facilities is the production of a performance plan and that, basically, anything goes--provided the facilities honor what he views as the empty formality of finding some sort of support from "currently accepted professional standards as cited in appropriate professional journals or reference guides" and from "the attending veterinarian." 9 CFR 3.81. This reading yields an obvious parade of horribles. Facilities will find unscrupulous veterinarians to rubber-stamp outrageous practices, and fringe periodicals will be the coin of the animal realm. This, argues...

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