American Anti-Vivisection Society v. AGRI

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2019 Decided January 10, 2020

No. 19-5015

AMERICAN ANTI-VIVISECTION SOCIETY AND AVIAN WELFARE
COALITION ,
APPELLANTS

v.

UNITED STATES DEPARTMENT OF AGRICULTURE AND SONNY
PERDUE , IN HIS OFFICIAL CAPACITY AS UNITED STATES
SECRETARY OF AGRICULTURE,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01138)

Lyle D. Kossis argued the cause for appellants. With him
on the briefs was E. Rebecca Gantt.

John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was Mark
B. Stern, Attorney.

Before: TATEL, PILLARD, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: Eighteen years ago, Congress
amended the Animal Welfare Act to require the U.S.
Department of Agriculture (USDA) to issue standards
“govern[ing] the humane handling[] [and] care” of “birds” not
“bred for use in research.” 7 U.S.C. §§ 2143(a)(1), 2132(g).
Because USDA has yet to do so, two animal-rights groups sued
under the Administrative Procedure Act (APA), alleging that
its failure to act amounts to arbitrary and capricious action in
violation of 5 U.S.C. § 706(2)(A), as well as “unlawfully
withheld [and] unreasonably delayed” action in violation of 5
U.S.C. § 706(1). The district court granted USDA’s motion to
dismiss for failure to state a claim. For the reasons set forth
below, we reverse the order of the district court and remand for
further proceedings consistent with this opinion.

I.
Congress passed the Animal Welfare Act in 1966 “to
insure that animals intended for use in research facilities or for
exhibition purposes or for use as pets are provided humane care
and treatment.” 7 U.S.C. § 2131(1). To that end, “[t]he
Secretary [of Agriculture] shall promulgate standards to govern
the humane handling, care, treatment, and transportation of
animals,” id. § 2143(a)(1), and “shall make such investigations
or inspections as he deems necessary to” enforce the Act and
its implementing regulations, id. § 2146(a). But not all animals
are “animals” under the Act. Id. § 2132(g). Until the early
2000s, the statute defined the term “animal” as “any live or
dead dog, cat, monkey . . . , guinea pig, hamster, rabbit, or such
other warm-blooded animal . . . [that] is being used, or is
intended for use, for research, testing, experimentation, or
exhibition purposes, or as a pet.” 7 U.S.C. § 2132(g) (2001).
According to USDA, this definition “exclude[d] birds.”
Miscellaneous Amendments to Chapter, 36 Fed. Reg. 24,917,
24,919 (Dec. 24, 1971). For the animals that USDA believed
the Act did cover, it issued a series of species-specific
 3
standards, some of which were required by the statute, see 7
U.S.C. § 2143(a)(2)(B) (dogs and primates), and others that
USDA thought appropriate for certain animals, see 9 C.F.R.
pt. 3, subpts. A–E (cats, guinea pigs, hamsters, rabbits, and
marine mammals). USDA also issued general welfare
standards applicable to all other animals protected by the Act.
See id. pt. 3, subpt. F.

In 2002, however, Congress amended the Animal Welfare
Act to make clear that it did protect birds. Specifically, it
excluded from the definition of “animal” “birds, rats . . . , and
mice . . . bred for use in research.” Farm Security and Rural
Investment Act of 2002, Pub. L. No. 107–171, § 10301, 116
Stat. 134, 491. USDA then acknowledged the obvious:
“animal” now includes all birds not bred for use in research.
See Animal Welfare; Definition of Animal, 69 Fed. Reg.
31,513, 31,513 (June 4, 2004). At the same time, explaining
that its general standards “would [not] be appropriate or
adequate to provide for the humane handling, care, treatment,
and transportation of birds,” USDA published an advance
notice of proposed rulemaking, “soliciting comments from the
public to aid in the development of appropriate standards for
birds.” Animal Welfare; Regulations and Standards for Birds,
Rats, and Mice, 69 Fed. Reg. 31,537, 31,539 (June 4, 2004). In
that notice, USDA promised to “publish a proposed rule for
public comment” once it “determine[d] how to regulate . . .
birds.” Id. And over the following years, USDA reiterated time
and again its commitment to promulgate bird-appropriate
standards. See People for the Ethical Treatment of Animals,
Inc. v. USDA, 7 F. Supp. 3d 1, 14 (D.D.C. 2013) (collecting
Federal Register citations where USDA announced its
intention to regulate birds). But to date, eighteen years after
Congress amended the Act to make clear that it protects birds,
USDA has failed to issue any standards pertaining to birds.
 4
Animal-welfare groups first challenged USDA’s inaction
in 2013, when People for the Ethical Treatment of Animals
(PETA) sued under the APA to compel USDA to promulgate
regulations specific to birds and, in the meantime, to enforce
the existing general animal-welfare standards for the benefit of
birds. See People for the Ethical Treatment of Animals v.
USDA (PETA), 797 F.3d 1087, 1091 (D.C. Cir. 2015). After
losing in the district court, PETA narrowed its claim on appeal,
“abandon[ing] its effort to require the USDA to promulgate
bird-specific regulations,” and declining to “pursue the
allegation made in its complaint that the USDA ‘unreasonably
delayed’ enforcement.” Id. at 1092 (quoting 5 U.S.C.
§ 706(1)). Our court, after rejecting USDA’s argument that
PETA lacked Article III standing, addressed its sole remaining
claim, holding that “nothing in the [Animal Welfare Act]
requires the USDA to apply the general animal welfare
standards to birds,” id. at 1098.

In this case, having taken the baton from PETA, two other
animal-rights groups, the American Anti-Vivisection Society
and the Avian Welfare Coalition, sued to compel USDA either
to issue bird-specific standards—a claim PETA had abandoned
on appeal—or to apply its general standards to birds. The
groups argued that USDA’s longstanding failure to promulgate
bird-applicable standards amounted to arbitrary and capricious
agency action in violation of 5 U.S.C. § 706(2)(A), as well as
“unlawfully withheld [and] unreasonably delayed” action in
violation of 5 U.S.C. § 706(1). After finding that the two
groups had standing, the district court dismissed their
complaint for failure to state a claim. See American Anti-
Vivisection Society v. USDA, 351 F. Supp. 3d 16, 26 (D.D.C.
2018). The animal-rights groups appeal, arguing that the
district court was wrong to dismiss their APA claims.
According to the groups, USDA must fulfill its statutory
obligation to protect birds either through its general animal-
 5
welfare standards or by issuing standards specifically
applicable to birds. In response, USDA insists, as it did in the
district court, that the groups lack standing and, in any event,
that the district court properly dismissed their claims. We
begin, as we must, with standing. See Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 94–95 (1998) (requiring
jurisdictional issues to be decided first).

II.
The Avian Welfare Coalition, one of the two organizations
that brought this action, sues “in its own right to seek judicial
relief from injury to itself and to vindicate [the] rights and
immunities the [organization] itself may enjoy.” Abigail
Alliance for Better Access to Developmental Drugs v.
Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006).
Organizations can establish their own standing by “mak[ing]
the same showing required of individuals: an actual or
threatened injury in fact that is fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be
redressed by a favorable court decision.” American Society for
Prevention of Cruelty to Animals v. Feld Entertainment, Inc.,
659 F.3d 13, 24 (D.C. Cir. 2011). To demonstrate injury in fact,
an organization must allege a “concrete and demonstrable
injury to the organization’s activities” that is “more than simply
a setback to the organization’s abstract social interests.”
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

In PETA, we held that “USDA’s refusal to apply the
[Animal Welfare Act] to birds perceptibly impaired PETA’s
mission” by “depriv[ing] PETA of key information that it relies
on to educate the public.” 797 F.3d at 1094 (internal quotation
marks omitted). “One of the primary ways in which PETA
accomplishe[d] its mission,” we explained, was “educating the
public by providing information about the conditions of
animals held by particular exhibitors.” Id. (internal quotation
 6
marks omitted). To do so, PETA relied on the “inspection
reports” that USDA routinely generates for the animals whose
handling and care it regulates. Id. at 1096. But USDA never
produced any inspection reports for birds. Because USDA’s
inaction “‘den[ied] [PETA] access to information . . . [it]
wish[ed] to use in [its] routine information-dispensing . . .
activities,’” we concluded that PETA had “‘alleged inhibition
of [its] daily operations, an injury both concrete and specific to
the work in which [it] [was] engaged.’” Id. at 1094 (quoting
Action Alliance of Senior Citizens of Greater Philadelphia v.
Heckler, 789 F.2d 931, 937–38 (D.C. Cir. 1986)).

Our decision in PETA controls here. The Coalition’s
“mission is to protect and raise awareness about the plight of
captive birds, and to serve as an educational resource for the
humane community, law-makers, and the general public.” Am.
Compl. ¶ 29. The Coalition also fields and “respond[s] to
complaints [of] cruelty to birds.” Id. ¶ 33. Like PETA, the
Coalition would pursue its objectives by relying on USDA
information—in this case the federal standards themselves.
Those standards would provide the substance from which the
Coalition would “educat[e]” the “public” and “promot[e] []
humane treatment of birds,” and would be used to gauge
“cruelty to birds.” Id.; see id. ¶¶ 30–35. And according to the
Coalition, many animal shelters would on their own “seek to
comply with existing regulations and are more likely to treat
birds humanely where applicable bird welfare . . . regulations
exist.” Id. ¶ 31. But because of “USDA’s failure to enact
regulations,” the Coalition has been compelled to fill the void
by developing the “guidance on topics like handling and
restraint, feeding, housing, and stress minimization” that
federal standards would otherwise provide. Id. ¶ 34. To this
end, the Coalition has developed “How To Guides,”
“webinars,” and “informational pamphlets that are designed to
help shelters and care facilities tend to the needs of birds.” Id.
 7
¶ 34. These activities, which “were not part of [the Coalition’s]
normal annual expenditures until the efforts became necessary
due to USDA’s clear inaction,” id. ¶ 39, have caused a
“consequent drain on the organization’s resources,” Havens
Realty, 455 U.S. at 379.

As in PETA, then, USDA’s alleged inaction has
“perceptibly impaired,” id., the Coalition’s organizational
interests by depriving it “of key information that it relies on” to
fulfill its mission, PETA, 797 F.3d at 1094. Indeed, the
Coalition’s claim for standing is even stronger than was
PETA’s. Whereas PETA had standing even though it had no
legal right to the incident reports it sought, see id. at 1103
(Millett, J., dubitante), the Coalition seeks standards that it
alleges USDA is legally required to promulgate. What’s more,
the Coalition’s alleged injury flows directly from USDA’s
failure to issue bird-appropriate standards, whereas PETA’s
injury depended not just on the Department’s failure to issue
standards, but also on its subsequent failure to generate
“inspection reports.” See id. at 1095.

Because the Coalition has alleged facts sufficient to
establish Article III standing, we need not consider whether the
Anti-Vivisection Society too has standing. See Hardaway v.
D.C. Housing Authority, 843 F.3d 973, 979 (D.C. Cir. 2016)
(requiring only one party to have standing where parties seek
the same relief). Accordingly, we turn to the merits.

III.
The APA authorizes courts to set aside agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). When
review is sought “under [a] general review provision[] of the
APA,” like section 706(2)(A), “the ‘agency action’ in question
must be ‘final agency action.’” Lujan v. National Wildlife
 8
Federation, 497 U.S. 871, 882 (1990) (citing 5 U.S.C. § 704).
To be final, an action must (1) “mark[] the consummation of
the agency’s decisionmaking process” and (2) be one by which
“rights or obligations have been determined, or from which
legal consequences will flow.” Bennett v. Spear, 520 U.S. 154,
177–78 (1997) (internal quotation marks omitted). The district
court found that the Coalition failed to satisfy the first of these
two requirements and dismissed its section 706(2)(A) claim.
We agree.

Although many years have passed since USDA sought
public comment on bird-specific standards, it has repeatedly
reiterated its intention to issue such standards and, as the
district court emphasized, it has “neither taken any action nor
issued anything suggesting that it will not . . . promulgate bird-
specific regulations.” American Anti-Vivisection Society, 351
F. Supp. 3d at 26. USDA’s decisionmaking process thus
remains unconsummated. To be sure, the process has been long
delayed, but that is the core of the Coalition’s section 706(1)
“unreasonably delayed” claim—to which we now turn.

In order to bring an “unreasonably delayed” claim, the
Coalition must, as the Supreme Court explained in Norton v.
Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55
(2004), “assert[] that [USDA] failed to take a discrete agency
action that it is required to take.” Id. at 64 (emphasis omitted).
The district court dismissed the Coalition’s section 706(1)
claim because it had “failed to sufficiently allege a discrete
agency action that the Department must take.” American Anti-
Vivisection Society, 351 F. Supp. 3d at 24. This time, we
disagree.

Recall that the Animal Welfare Act, as amended eighteen
years ago, requires USDA to issue standards governing the
humane treatment, not of animals “generally,” as the
 9
Department argues, see Appellees’ Br. 13–14, but of
“animal[s]” as a defined category of creatures including “birds”
not “bred for use in research,” 7 U.S.C. § 2132(g). And recall
also that USDA has conceded that its general animal-welfare
standards are inadequate to ensure the humane treatment of
birds. See supra at 3; see also Appellees’ Br. 13 (conceding it
“has not attempted to argue that these general regulations apply
to birds”). Given this, USDA has yet to fulfill its statutory
responsibility to issue standards regarding the humane
treatment of birds: the general standards do not apply, and the
Department has issued no standards specifically applicable to
birds. Put in terms of SUWA, USDA has failed to take a
“discrete action”—issuing standards to protect birds—that the
Act “require[s] it to take.” 542 U.S. at 64 (emphasis omitted).

Contrary to USDA’s argument, nothing in PETA
forecloses the relief the Coalition seeks. Because PETA had
chosen to abandon both its pursuit of species-specific standards
and its “unreasonably delayed” claim, we considered only its
remaining claim—that by failing to enforce its general animal-
welfare standards with respect to birds, USDA had “unlawfully
withheld” agency action within the meaning of section 706(1).
Highlighting the claims PETA had dropped, we held that
“nothing in the [Act] requires the USDA to apply the general
animal welfare standards to birds . . . before finalizing its bird-
specific regulations, at least in light of PETA’s abandonment
of its argument that the USDA unreasonably delayed
enforcement.” Id. at 1098. By contrast, the Coalition contends
that USDA has “unreasonably delayed” protecting birds in any
way, whether by “formally stating that the current general
regulations . . . do apply to birds, or [by] enact[ing] bird-
specific regulations.” Appellants’ Br. 35 (emphasis added).

Given that the Coalition has adequately alleged that
USDA has failed to take a “discrete agency action” that it is
 10
“required to take,” SUWA, 542 U.S. at 64 (emphasis omitted),
the only remaining section 706(1) question is whether that
action—the issuance of standards to protect birds—has been
“unreasonably delayed,” cf. Telecommunications Research &
Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)
(outlining six factors courts consider in determining whether
agency delay was unreasonable). Because that issue is
unbriefed here, we remand to the district court to consider it in
the first instance.

So ordered.