Am. Anti-Vivisection Soc'y v. U.S. Dep't of Agric. & Sonny Perdue

946 F.3d 615

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

No. 19-5015

United States Court of Appeals, District of Columbia Circuit.

Argued October 21, 2019

Decided January 10, 2020

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

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.

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 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.

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-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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 102 S.Ct. 1114, 71 L.Ed.2d 214 (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 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...