PETA v. Barshefsky

Decision Date17 May 1996
Docket NumberNo. CA-96-1013.,CA-96-1013.
Citation925 F. Supp. 844
PartiesPEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. Charlene BARSHEFSKY, Acting U.S. Trade Representative, et al., Defendants.
CourtU.S. District Court — District of Columbia

John F. Cobau, Patton Boggs, L.L.P., Washington, DC, for Plaintiff.

Eric Goulian, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

URBINA, District Judge.

This matter comes before the court upon plaintiff's motion for a preliminary injunction and defendants' opposition. The issue before the court is whether a working group composed of experts from various countries that is seeking to develop international humane trapping standards is subject to the requirements of the Federal Advisory Committee Act, 5 U.S.C.App., §§ 1-14 (FACA). The court concludes that plaintiff has not demonstrated a substantial likelihood of succeeding on its claim that the working group was established or is utilized by a federal agency. As a result, the court, for purposes of this motion, concludes that the working group is not subject to FACA. Accordingly, plaintiff's request for injunctive relief must be denied.

I. Background

On November 4, 1991, the European Union (EU) adopted Regulation No. 3254/91 which bars the use of leghold traps within the EU for certain animal species and prohibits the importation into the EU of pelts of animal species of the type caught in leghold traps unless the exporting country either prohibits the use of these traps or complies with an internationally agreed upon humane trapping standard. The EU banned the leghold traps to aid in the conservation of endangered species and to prevent the prolonged pain an animal suffers as a result of leghold traps. On January 1, 1997, the EU import ban is scheduled to become effective.

The EU regulation would, however, permit fur imports from nations which comply with an international humane trapping standard. The United States, Canada, and Russia have expressed concern over the EU regulation since no international humane trapping standard has been developed and thus exporting countries cannot hope to meet this standard in order to avoid the EU import ban. In an effort to reach some form of accommodation and to avert a serious trade dispute over the EU ban, the United States government has entered into discussions with the European Commission. As part of this engagement, the EU, Canada, and the United States decided to facilitate the formation of a working group of experts to develop an international humane trapping standard. Russia has also joined the group. The members of the working group hope that this standard will influence or help determine how the EU ban is implemented. Each nation selected its representatives to the group.

In the United States, trapping is regulated by the individual states. Consequently, the National Governors Association (NGA) selected three experts from New York, Louisiana, and Wyoming, respectively, to serve on the working group. Included among the members of the U.S. delegation are two other officials: one from the U.S. Department of Agriculture and one from the U.S. Trade Representative's Office. The working group has convened five times since its formation. It has alternated its meetings between North America and Europe. The next meeting is to be held in St. Petersburg, Russia.

Plaintiff, People for the Ethical Treatment of Animals, Inc. (PETA), a non-profit international organization dedicated to protecting animals from exploitation and cruelty, seeks to impose the procedural and substantive requirements of the Federal Advisory Committee Act on the international group of experts who constitute the working group. PETA seeks to be informed about the purpose and activities of the working group and wants to participate in its decision-making process and meetings. Specifically, plaintiff seeks a preliminary injunction to enjoin the defendants from "holding, conducting, attending, or participating in any meetings of the working group on the Development of International Humane Standards, or otherwise supporting any such meetings,"1 until the defendants comply with the requirements of the Act.

II. Analysis

In order to succeed on a motion for a preliminary injunction, a movant must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will result in the absence of the requested relief; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) that the public interest favors entry of a preliminary injunction. WMATC v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); Sea Containers, Ltd. v. Stena AB, 890 F.2d 1205, 1208 (D.C.Cir. 1989). A preliminary injunction is not granted as a matter of right. Eli Lilly and Co. v. Premo Pharmaceutical Labs., 630 F.2d 120, 136 (3d Cir.1980), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). Injunctive relief is an extraordinary remedy and must be sparingly granted. Dorfmann v. Boozer, 414 F.2d 1168 (D.C.Cir.1969).

A district court is to balance the four factors. Grigsby Brandford & Co., Inc. v. U.S., 869 F.Supp. 984, 1003 (D.D.C.1994). Consequently, although a "particularly strong likelihood of success on the merits" may entitle a movant to relief upon "a relatively slight showing of irreparable injury," some showing of irreparable injury is always required, "since `the basis for injunctive relief in the federal court has always been irreparable harm.'" CityFed Fin. Corp. v. OTS, 58 F.3d 738, 747 (D.C.Cir.1995) (quoting Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974)). Likewise, a court may accept a showing that the movant has a "substantial case on the merits" instead of the probability of success on the merits that is ordinarily required, but only when all of "the other three factors strongly favor interim relief." Holiday Tours, Inc., 559 F.2d at 843.

A. Likelihood of Success on the Merits

The Federal Advisory Committee Act (Act) was enacted in 1976 with Congress' recognition that many committees, boards, commissions, and other groups provide the executive branch with valuable expert advice, ideas and opinions. See 5 U.S.C.App. 2 § 2(a). However, Congress was also cognizant of the fact that many advisory committees were created without adequate justification. Id. 2 §§ 2(b)(1)-(3). Those committees that were necessary should be accessible to the Congress and the public. Id. 2 § 2(b)(5). The statute has two principal purposes: "to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures on them." Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 459, 109 S.Ct. 2558, 2568, 105 L.Ed.2d 377 (1989). Finally, the function of advisory committees is to be advisory in nature only; with the final decision on all matters resting with the appropriate executive branch agency or official. 5 U.S.C.App. 2 § 2(b)(6).

For purposes of the Act, an advisory committee is

... any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ... which is ... (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government ...

Id. 2 § 3(2). Therefore, in order to constitute a committee under the Act, a group must be established or utilized by the President or an executive agency for the purpose of obtaining advice or recommendations. An advisory committee which comes under the terms of the Act must comply with a number of detailed requirements. See id. 2 §§ 9-10.2

Presently, however, plaintiff has not demonstrated a substantial likelihood of succeeding on the merits of its claim that the working group at issue in this case was either established or utilized by the USTR and is thereby subject to the terms of the Act. PETA asserts that the U.S. government, through the USTR, established the working group to provide the USTR with advice on international humane trapping standards. Plaintiff bases its argument on the fact that the USTR, in its 1996 Trade Barriers Report, stated that, "at the urging of the U.S. Government and others, experts from the European Commission, Canada and the United States (later joined by Russia) launched an intensive discussion of humane trapping standards." Furthermore, plaintiff states that the USTR was responsible for naming some of the members of the working group. According to PETA, because federal and non-federal officials are members of the working group and because the U.S. government provides some of the funding for the working group, the group is an advisory committee under the terms of the Act. Finally, plaintiff maintains that the working group provides the USTR with advice on international humane trapping standards.

The USTR, for its part, contends that the working group is not an advisory committee within the meaning of the Act because the working group does not have an advisory function. Rather, it is a group of experts that is seeking to develop certain international guidelines with respect to humane trapping; not to provide advice. In addition, the defendants maintain that the Act does not apply to the working group because the group was established, not by the USTR, but through the cooperative efforts of the United States, Canada and the EU. Finally, the defendants aver that they do not utilize the working group as that term is employed by the Act.

As this juncture, the court cannot conclude that the working group was established by the USTR. In order for a committee to be established by an agency, it must be `directly established' by the agency. Lombardo v. Handler, 397 F.Supp. 792,...

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