People for the Ethical Treatment Animals v. U.S. Dep't of Agric., 14–5157.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation797 F.3d 1087
Docket NumberNo. 14–5157.,14–5157.
PartiesPEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Appellant. v. UNITED STATES DEPARTMENT OF AGRICULTURE and Thomas J. Vilsack, in his OFficial Capacity as Secretary of the United States Department of Agriculture, Appellees.
Decision Date11 August 2015

797 F.3d 1087

UNITED STATES DEPARTMENT OF AGRICULTURE and Thomas J. Vilsack, in his OFficial Capacity as Secretary of the United States Department of Agriculture, Appellees.

No. 14–5157.

United States Court of Appeals, District of Columbia Circuit.

Argued May 14, 2015.
Decided Aug. 11, 2015.

Matthew D. Strugar argued the cause for the appellant. Jeffrey S. Kerr and Delcianna Winders were with him on brief.

William E. Havemann, Attorney, United States Department of Justice, argued the cause for the appellees. Ronald C. Machen, United States Attorney at the time brief was filed, and Michael J. Singer, Attorney, were with him on brief.

Before: GARLAND, Chief Judge, and HENDERSON and MILLETT, Circuit Judges.


Opinion for the Court filed by Circuit Judge HENDERSON.

Dubitante opinion filed by Circuit Judge MILLETT.


In 2004, the United States Department of Agriculture (USDA or Agency) announced that, for the first time, it intended to apply the protections of the Animal Welfare Act (AWA or Act), 7 U.S.C. §§ 2131 et seq., to birds. Although the Agency has taken steps to craft avian-specific animal welfare regulations, it has yet to complete its task after more than ten years and, during the intervening time, it has allegedly not applied the Act's general animal welfare regulations to birds. Frustrated with the delay, People for the Ethical Treatment of Animals (PETA) sued the USDA, arguing that its inaction amounted to agency action “unlawfully withheld,” in violation of section 706(1) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(1). The district court granted the USDA's motion to dismiss, concluding that the USDA's enforcement decisions are committed by law to its discretion. See id. § 701(a)(2). For the reasons set forth below, we affirm on different grounds.


In 1966, the Congress enacted the AWA to, inter alia, “insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment” and

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“to assure the humane treatment of animals during transportation in commerce.” 7 U.S.C. § 2131(1) -(2). To effect these goals, the Congress instructed the USDA to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.” Id. § 2143(a)(1). For some animals, the USDA is required by statute to promulgate species-specific regulations, see id. § 2143(a)(2)(B) (dogs and primates), and it retains the discretion to promulgate species-specific regulations for other covered animals, see id. § 2151. It has done so for, inter alia, hamsters, guinea pigs, rabbits and marine mammals. See 9 C.F.R. §§ 3.25 –3.28 ; 3.50–3.53; 3.100–3.104. All other animals benefit from the protection of the AWA's general animal welfare regulations, which establish “minimum requirements” for “handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species.” 7 U.S.C. § 2143(a)(2)(A) ; see 9 C.F.R. §§ 3.125 –3.128.

Compliance with the Act and with the USDA's implementing regulations is accomplished through the Act's licensure, inspection and investigation requirements. Its predicate licensure requirement provides that animal “dealer [s]” and “exhibitor[s]” must “obtain[ ] a license” from the USDA before they “buy, sell, offer to buy or sell, transport or offer for transportation” any “animal.” 7 U.S.C. § 2134. Upon receiving an application for licensure from a dealer or exhibitor, the USDA issues a license “in such form and manner as [it] may prescribe.” Id. § 2133. The Act also allows the USDA to unearth violations of the Act by “mak[ing] such investigations or inspections as [it] deems necessary.Id. § 2146(a) (emphasis added). It has promulgated regulations providing that, before obtaining a license, “[e]ach applicant must demonstrate that his or her premises and any animals, facilities, vehicles, equipment, or other premises used or intended for use in the business comply with the regulations and standards” set by the USDA and “must make his or her animals, premises, facilities, vehicles, equipment, other premises, and records available for inspection ... to ascertain the applicant's compliance with the standards and regulations.” 9 C.F.R. § 2.3(a).

Although seemingly broad, the Act's scope turns on the USDA's definition of “animal.” 7 U.S.C. § 2132(g). When first enacted, the AWA protected only “dogs, cats, monkeys (nonhuman primate mammals), guinea pigs, hamsters, and rabbits.” See Pub.L. No. 89–544, § 2(h), 80 Stat. 350, 351 (1966). For years, the USDA excluded birds from the Act's protection. See USDA, Miscellaneous Amendments to Chapter, 36 Fed.Reg. 24,917, 24,919 (Dec. 24, 1971).

Their status changed in 2002, when the Congress amended the AWA's definition of “animal” to exclude “birds ... bred for use in research.” 7 U.S.C. § 2132(g). Interpreting the Congress's exclusion of research avians to mean the inclusion of all other birds, the USDA updated its regulations on June 4, 2004, to make explicit that birds would thenceforth benefit from the Act's protections. Animal Welfare; Definition of Animal, 69 Fed.Reg. 31,513, 31,513 (June 4, 2004) ; see also 9 C.F.R. § 1.1. On the same day it announced that it would apply the Act to birds not bred for use in research, however, the USDA announced that it “d[id] not believe that the general standards” under the AWA, which were promulgated with an eye toward mammalian care, were appropriate for birds. See Animal Welfare; Regulations and Standards for Birds, Rats, and Mice, 69 Fed.Reg. 31,537, 31,539 (June 4, 2004). The USDA issued an Advance Notice of

797 F.3d 1091

Proposed Rulemaking (ANPR) for avian-specific animal welfare regulations. Id.

In the ensuing notice-and-comment period, the USDA received over 7,000 comments from a wide range of sources. Based on the comments, the USDA consulted with veterinarians, economists, industry members, related government agencies and others to develop a set of avian-specific regulations. It also assigned the Animal and Plant Health Inspection Service (APHIS)—the USDA sub-agency that administers the AWA—to assist with the process. The APHIS then hired an avian health-and-welfare expert to help it accomplish its task.

Despite these efforts, the USDA “has repeatedly set, missed, and then rescheduled deadlines for the publication of proposed bird-specific regulations.” PETA v. USDA (PETA I), 7 F.Supp.3d 1, 6 (D.D.C.2013). During this time, the USDA has allegedly not applied the AWA's licensure and inspection provisions or the general animal welfare regulations to birds, although it has informally visited facilities accused of avian mistreatment. There is apparently some confusion at the Agency about whether the AWA applies to birds at all. Despite its regulatory pronouncement that birds are AWA-regulated animals, see Animal Welfare; Definition of Animal, 69 Fed.Reg. at 31,513, the USDA has responded to some bird-related complaints by insisting that birds are not regulated under the AWA and do not fall within the jurisdiction of the USDA. Indeed, the USDA responded to a Freedom of Information Act request by stating that “[a]gency employees conducted a thorough search of their files and advised our office that birds are not being regulated.” PETA I, 7 F.Supp.3d at 6.

Frustrated by these representations and by reports of bird-related abuse and neglect, PETA sued the USDA on June 27, 2013, invoking section 706(1) of the APA and requesting the district court to compel the USDA to take two actions it has allegedly “unlawfully withheld,” 5 U.S.C. § 706(1). PETA asked the court to “compel[ ] the USDA to ... publish for public comment in the Federal Register, by a Court-ordered deadline, proposed rule(s) specific to birds” and then “promulgate, by a Court-ordered deadline, standards specific to birds.” Compl. 7. Second, PETA requested the court to order the USDA to “immediately extend enforcement of the AWA to birds covered by the AWA, by enforcing the general AWA standards that presently exist.”1 The USDA responded with a motion to dismiss (or in the alternative, for summary judgment), arguing, first, that PETA lacked standing and, second, that PETA failed to state a claim because the AWA leaves enforcement decisions to the USDA's non-justiciable discretion.

The district court rejected the USDA's standing argument. Recognizing that “an organizational plaintiff such as PETA [can] sue in its own right,” PETA I, 7 F.Supp.3d at 7, the district court found that PETA suffered two cognizable injuries. First, unless the USDA applied the AWA's protections to birds, PETA could not redress bird mistreatment by filing complaints with the USDA and, as a result, PETA had to expend resources to seek relief through other, less efficient and effective means. Second, the USDA's failure to protect birds meant, ipso facto, that the USDA was not creating bird-related inspection reports that PETA could use to raise public awareness. Finding that

797 F.3d 1092

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