International Primate Protection League v. Institute for Behavioral Research, Inc., 86-1508

• Decision Date: 04 September 1986
• Docket Number: No. 86-1508,86-1508
• Citation: 799 F.2d 934
• Parties: INTERNATIONAL PRIMATE PROTECTION LEAGUE, a non-profit corporation; Animal Law Enforcement Association, a corporation; People for Ethical Treatment of Animals, Inc., a corporation; Alex Hershaft; Pamela Chapman; Jo Shoesmith; Virginia Bourquardez; Peter W. Solem, Esq. and Bertha K. Solem; and Sherryl R. Thomas, for themselves and the class, Appellants, v. INSTITUTE FOR BEHAVIORAL RESEARCH, INC., a corporation or its successors in interest and as agents and officers; Richard W. Swain, Jr., Sergeant, Montgomery County Police; and National Institutes of Health; Animal Laboratory, Poolesville, Maryland, a branch of the Public Health Service, Department of Health and Human Services and their successors, Appellees. and James V. Stunkard, D.V.M., Defendant, America College of Surgeons, et al., Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 934

799 F.2d 934

INTERNATIONAL PRIMATE PROTECTION LEAGUE, a non-profit corporation; Animal Law Enforcement Association, a corporation; People for Ethical Treatment of Animals, Inc. a corporation; Alex Hershaft; Pamela Chapman; Jo Shoesmith; Virginia Bourquardez; Peter W. Solem, Esq. and Bertha K. Solem; and Sherryl R. Thomas, for themselves and the class, Appellants, v. INSTITUTE FOR BEHAVIORAL RESEARCH, INC., a corporation or its successors in interest and as agents and officers Richard W. Swain, Jr., Sergeant, Montgomery County Police and National Institutes of Health; Animal Laboratory Poolesville, Maryland, a branch of the Public Health Service, Department of Health and Human Services and their successors, Appellees. and James V. Stunkard, D.V.M., Defendant, America College of Surgeons, et al., Amici Curiae.

No. 86-1508.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1986.

Decided Sept. 4, 1986.

Edward L. Genn (Gilbert J. Genn, Rockville, Md., on brief) for appellants.

Robert B. Lanman, Legal Advisor, Nat. Institutes of Health, Dept. of Health and Human Services, and Edgar H. Brenner (Arnold & Porter, Washington, D.C., James R. Miller, Miller & Steinberg, Rockville, Md., Breckinridge L. Willcox, U.S. Atty., Charles P. Scheeler, Asst. U.S. Atty., Baltimore, Md., on brief), for appellees.

(Richard E. Verville, Peter S. Leyton, Grace Powers Monaco, Rebecca L. Burke, White, Fine & Verville, Washington, D.C., on brief), for amici curiae.

Before WIDENER, ERVIN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge.

In this case we must decide whether a group of private individuals may challenge a medical researcher's compliance with federal standards for the care of laboratory animals. Because we find that the plaintiffs lack standing to bring such a lawsuit, we affirm the judgment of the district court in its dismissal of this action.

To imply a cause of action in these plaintiffs might entail serious consequences. It might open the use of animals in biomedical research to the hazards and vicissitudes of courtroom litigation. It may draw judges into the supervision and regulation of laboratory research. It might unleash a spate of private lawsuits that would impede advances made by medical science in the alleviation of human suffering. To risk consequences of this magnitude in the absence of clear direction from the Congress would be ill-advised. In fact, we are persuaded that Congress intended that the independence of medical research be respected and that administrative enforcement govern the Animal Welfare Act.

I.

The principal complainant in this case, Alex Pacheco, first met the principal defendant, Dr. Edward Taub, in May 1981. ¹ Pacheco, an undergraduate student in the program of Environmental Studies at George Washington University in Washington, D.C., had worked frequently for the protection of animals, participating in projects of the Fund for Animals, the Friends of Animals, the Ohio Capital Area Humane Society, and the Alaska Department of Fish and Wildlife. He had founded the Ohio Animal Rights Committee and, in Washington, D.C., had founded People for the Ethical Treatment of Animals, Inc. (PETA), on which he continued to serve as director. Taub, the chief of the Behavioral Biology Center of the Institute of Behavioral Research (IBR), was studying the capacity of monkeys to learn to use a limb after nerves had been severed. Funded by the National Institutes of Health (NIH), the project amplified Taub's earlier research in this area and attempted to discover benefits for the rehabilitation of human patients suffering from a serious neurological injury such as a stroke. ²

Pacheco offered to work as a volunteer for Taub on the neurological study at an IBR facility in Silver Spring, Maryland. Taub gave Pacheco the keys to the premises and permission to enter at any time, and Pacheco came regularly to the laboratory during the summer of 1981. He concluded from his observations that IBR did not provide the monkeys with sufficient food or water, a sanitary environment, or adequate veterinary care. On several nights during the week of August 27, 1981, Pacheco brought other researchers to IBR to confirm his impressions. Collecting affidavits from these visits with his own statement and photographs of the laboratory, Pacheco asked Sgt. Richard W. Swain, Jr. of the Montgomery County Police Department to investigate IBR for violations of Article 27, Sec. 59 of the Maryland Code, which defines the criminal misdemeanor of cruelty to animals and authorizes a maximum imprisonment of ninety days and a maximum fine of $1,000 for each offense.

Swain obtained a search warrant from the Circuit Court for Montgomery County and on September 11 seized from IBR the seventeen monkeys in the experiment. Nine days later, the Assistant State's Attorney for Montgomery County filed criminal charges against Taub in the county District Court, alleging seventeen violations of the animal cruelty statute.

On October 9 the Circuit Court for Montgomery County, without opposition from IBR, instructed Sgt. Swain and Dr. James Stunkard, a veterinarian, to supervise the transfer of the monkeys to an NIH facility in Poolesville, Maryland that Swain and Stunkard had chosen as the best place for temporary care and custody. The order was to remain in effect "until further Order of this Court or the termination of the pending criminal prosecution against Dr. Taub, whichever occurs first."

Dr. Taub stood trial in November 1981 in the District Court for Montgomery County, which on December 2 entered orders of conviction on six of the seventeen counts and acquittal on the other eleven counts. Fearing that the court order on custody of the monkeys would partially expire with the acquittals, PETA acted quickly to prevent the return of any animals to IBR. Along with the International Primate Protection League, the Animal Law Enforcement Association, and several named individuals, PETA filed a bill of complaint on December 3 in the Circuit Court for Montgomery County. The complaint, in which the plaintiffs purported to speak for "their own and class interests and as next friends of seventeen (17) non-human primates," ³ alleged that a civil inquiry would show IBR violations of the Maryland animal cruelty laws which the criminal trial had not established and further alleged that IBR had violated the federal Animal Welfare Act, 7 U.S.C. Secs. 2131 et seq. Naming IBR, NIH, Swain, and Stunkard as defendants, the plaintiffs asked the equity court to verify these claims, to designate the plaintiffs as new guardians of the monkeys, and to enjoin all parties from permitting IBR to regain possession.

On December 17, NIH requested removal of the case to the U.S. District Court for the District of Maryland. The plaintiffs did not oppose removal; as the complaint had noted, the claims arising under the Animal Welfare Act supported federal jurisdiction. Within two days, IBR moved to dismiss the action because the plaintiffs lacked standing to sue and within two weeks, NIH moved to dismiss the action for improper venue or to transfer the case to the U.S. District Court for the District of Columbia for consolidation with Civil Action No. 81-2691, Humane Society of the United States v. Block, and Civil Action No. 81-2977, Fund for Animals v. Malone. The plaintiffs in the former case, including PETA, hoped to require the Secretary of Agriculture to enforce against Taub and IBR the provisions of the Animal Welfare Act. The plaintiff in the latter case sought a more general declaration of the duties of Secretary Block and NIH to control the research treatment of animals and also requested an injunction to prevent the return of the seized monkeys to Taub and IBR.

Before the federal district court in Maryland ruled on the motion to consolidate, the federal district court in Washington, D.C. dismissed Humane Society v. Block and Fund For Animals v. Malone. In an April 1982 decision the court described the enforcement authority of NIH and Department of Agriculture officials as "wholly discretionary" and held that "given the absence of any express statutory directive requiring enforcement action where certain standards of care are not met, there is no duty owed to members of these plaintiff organizations nor can such a duty be implied."

Meanwhile, the Maryland criminal prosecution also moved toward resolution. Taub appealed his six District Court convictions to the Circuit Court for Montgomery County, where a jury after a new trial returned a verdict against Taub on one count of cruelty to animals. The Court of Appeals of Maryland then granted a writ of certiorari and in August 1983 reversed the conviction, holding that Article 27, Sec. 59 of the Maryland Code did not apply to an institution conducting medical research pursuant to a federal program. Taub v. State, 296 Md. 439, 463 A.2d 819 (1983).

With the conclusion of the other federal cases and with the expiration of the October 9, 1981 order upon the termination of criminal proceedings, this suit became the only remaining litigation about the custody of the monkeys. In January 1985 a federal magistrate in the District of Maryland recommended that the district court dismiss for lack of standing the suit against IBR, NIH, and Swain. (The parties had earlier stipulated to the dismissal of Stunkard.) Three months later, the district court adopted the report and recommendation of the magistrate. When the district court refused in November to set aside the judgment, the plaintiffs appealed to this court. We affirm.

II.

In order to sue in federal court, plaintiffs must show that they "personally [have] suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). Plaintiffs argue that they would suffer both financial and...