Rise for Animals v. Vilsack

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RISE FOR ANIMALS, et al., Plaintiffs, v. TOM VILSACK, Secretary of the United States Department of Agriculture, et al., Defendants.

No. 8:22-cv-00810-JRR

United States District Court, D. Maryland

March 21, 2024

MEMORANDUM OPINION

JULIE R. RUBIN, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Rise for Animals (“Rise”) and Animal Legal Defense Fund (“ALDF”) are nonprofit organizations focused on advancing the interests of animals. (ECF No. 1 ¶¶ 6, 12.) Specifically, Rise seeks to end the suffering of nonhuman primates used in research, and works to educate the public, lawmakers, and others to that end. Id. ¶ 6. Similarly, ALDF engages in campaigns to bring public awareness to what it views as the failures of laboratories to provide proper care for their research subject primates. Id. ¶ 12.

Rise and ALDF bring this action pursuant to the Administrative Procedure Act (“APA”) against Defendants Tom Vilsack, Secretary of the United States Department of Agriculture (“USDA”), and Elizabeth Goldentyer Acting Deputy Administrator for Animal Care at the Animal Plant and Health Inspection Service (“APHIS”).^[1]Plaintiffs seek judicial review of the Agency's policy (“Partial Inspection Policy”)^[2]under which, in Plaintiffs' view, the Agency “relies on third-party accreditation by the Association of the Assessment and Accreditation of Laboratory Animal Care (“AAALAC”), a private trade association, to evade its statutory obligation to conduct full annual inspections of research facilitates as required under the Animal Welfare Act (“AWA”), 7 U.S.C. § 2146.” (ECF No. 1 at 1.)^[3]

Pending before the court are Plaintiffs' Motion for Summary Judgment and memorandum of law in support thereof (ECF Nos. 25 and 25-1) and Defendants' Motion to Dismiss and Cross Motion for Summary Judgment and memorandum of law in support thereof. (ECF Nos. 35 and 35-1.) The court has reviewed the parties' submissions and no hearing is necessary. Local Rule 105.6 (D. Md. 2023).

II. BACKGROUND

A. Statutory and Regulatory Background

1. Animal Welfare Act of 1966

In 1966, Congress enacted the AWA to “[e]nsure that animals intended for use in research facilities . . . are provided humane care and treatment.” 7 U.S.C. § 2131(1). The AWA “authorizes the Secretary of Agriculture to promulgate standards and other requirements governing the humane handling, housing, care, treatment, and transportation of certain animals by dealers, exhibitors, and other regulated entities.” 64 Fed.Reg. 38145 (July 15, 1999). The Secretary of Agriculture delegated responsibility to APHIS to enforce the AWA. Id.

2. AWA Amendment

In 1985, Congress recognized that nonhuman primates have psychological and social needs that are critical to their well-being and acknowledged that the “[c]urrent standards leave too much room for shoddy care and inhumane treatment.” 131 Cong. Rec. 22257 (Aug. 1, 1985) (statement of Sen. Chafee). Further, Congress explained stricter standards were required to protect animals involved in research and experiments. 131 Cong. Rec. 22257 (Aug. 1, 1985).

Subsequently, in 1985, Congress passed the Improved Standards for Laboratory Animals Act (“ISLAA”), amending AWA. Pub. L. No. 99-198, 99 Stat. 1645 (1985). ISLAA amended AWA to “ensure that animals necessary for research receive fair and humane treatment, and that their discomfort is kept to an absolute minimum,” while also recognizing that “animal research is essential to the progress of efforts to protect human health.” 131 Cong. Rec. 29274 (Aug. 1, 1985) (statement of Sen. Moynihan). ISLAA requires the Secretary of the USDA to promulgate standards that “include minimum requirements . . . for a physical environment adequate to promote the psychological well-being of primates.” 7 U.S.C. § 2143(a)(2)(B). ISLAA further provides: “[t]he Secretary shall require each research facility to show upon inspection, and to report at least annually, that the provisions of this Act [7 U.S.C. § 2131, et seq.] are being followed and that professionally acceptable standards governing the care, treatment, and use of animals are being followed by the research facility during actual research or experimentation.” Id. § 2143(a)(7)(A). In complying with the standards set forth in § 2143(a)(7)(A), “research facilities shall provide . . . (i) information on procedures likely to produce pain or distress in any animal and assurances demonstrating that the principal investigator considered alternatives to those procedures; (ii) assurances satisfactory to the Secretary that such facility is adhering to the standards described in this section; and (iii) an explanation for any deviation from the standards promulgated under this section.” Id. § 2143(a)(7)(B).

With respect to investigations and inspections involving research facilities, “[t]he Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter or any regulation or standard issued thereunder ....” 7 U.S.C. § 2146(a). Further, “[t]he Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviations from the standards promulgated under this Act, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected.” Id. Finally, AWA requires that APHIS “make publicly available via searchable database . . . all final [AWA] inspection reports, including all reports documenting all [AWA] violations and non-compliances observed by USDA officials and all animal inventories for the current year and the preceding three years ....” 7 U.S.C. § 2146a(b).

3. USDA Regulation

In 1991, the USDA promulgated a regulation to implement ISLAA, which provides in relevant part:

Dealers, exhibitors, and research facilities must develop, document, and follow an appropriate plan for environment enhancement adequate to promote the psychological well-being of nonhuman primates. The plan must be in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian. This plan must be made available to APHIS [Animal and Plant Health Inspection Service] upon request, and, in the case of research facilities, to officials of any pertinent funding agency.

56 Fed.Reg. 6426 (1991), codified at 9 C.F.R. § 3.81. The regulation further requires that each plan address the following topics: (1) “the social needs of nonhuman primates of species known to exist in social groups in nature;” (2) “[e]nvironmental enrichment, [such that] [t]he physical environment in the primary enclosures must be enriched by providing means of expressing noninjurious species-typical activities;” (3) special conditions for certain types of primates, including infants and young nonhuman primates; and (4) the use of restraint devices. Id. §§ 3.81(a)-(d).

B. Procedural Background

On April 5, 2022, Plaintiffs filed the instant action seeking judicial review of the Partial Inspection Policy, pursuant to 5 U.S.C. § 706(2)(A).^[4] (ECF No. 1.) Plaintiffs request that the court: (1) declare the Partial Inspection Policy unlawful; (2) set aside the Partial Inspection Policy; (3) award them their reasonable attorneys' fees and costs; and (4) award any other relief the court deems just and proper. (ECF No. 1 at 19.)

On April 14, 2023, Plaintiffs filed the Motion for Summary Judgment at ECF No. 25; and on July 31, 2023, Defendants filed the Motion to Dismiss and Cross-Motion for Summary Judgment at ECF No. 35. Plaintiffs argue that the Partial Inspection Policy violates the plain language of the AWA, the Partial Inspection Policy is an impermissible delegation of the Agency's obligation to conduct annual inspections, and in adopting the Partial Inspection Policy, the Agency acted arbitrarily and capriciously, and abused its discretion within the meaning of the APA, 5 U.S.C. §706(2)(A). (ECF No. 25-1 at 11.) Defendants counter that this court lacks subject matter jurisdiction over the instant action because: (1) Plaintiffs lack standing; (2) the manner in which the Agency conducts inspections is committed to agency discretion; and (3) the Partial Inspection Policy does not constitute agency final action. (ECF No. 35-1 at 6-18.) Additionally, Defendants argue they are entitled to judgment as a matter of law because: (1) the Agency complies with the AWA requirements; (2) the Partial Inspection Policy does not delegate authority to any entity; and (3) the Partial Inspection Policy is distinct from the prior Agency policy that Plaintiffs contend is arbitrary and capricious. Id. at 1-2.

III. LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(1)

As set forth immediately above, Defendants move to dismiss this case pursuant to Rule 12(b)(1) arguing that the court lacks subject matter jurisdiction over Plaintiffs' APA claim because the way in which the Agency conducts inspections is committed to its discretion, there is no final agency action, and Plaintiffs lack standing. (ECF No. 35-1 at 6-18.)

“Committed to agency discretion by law” and No Final Action

“Although there is a ‘strong presumption' in favor of judicial review of agency action,” Speed Mining Inc. v. Fed. Mine Safety & Health Review Comm'n, 528 F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)), the APA bars judicial review of agency action ‘committed to agency discretion by law.'” Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d 684, 697 (4th...