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Media Alerts - PETA v. U.S. Department of Agriculture - D.C. Circuit
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August 13, 2015
  PETA v. U.S. Department of Agriculture - D.C. Circuit
Headline: D.C. Circuit rules Department of Agriculture did not unlawfully withhold agency action under the Animal Welfare Act

Area of Law: Administrative Law

Issue(s) Presented: Whether a lengthy delay in developing and applying regulations constitutes unlawful withholding of agency action in violation of 706(1) of the Administrative Procedure Act.

Brief Summary: Appellant People for the Ethical Treatment of Animals ("PETA") brought suit against the U.S. Department of Agriculture ("USDA"), claiming that the more than ten year delay in the development of regulations necessary to apply the Animal Welfare ("AWA") to birds amounted to unlawful withholding of agency action in violation of section 706(1) of the Administrative Procedure Act. In 2004, USDA announced its intent to apply the AWA to birds. At the same time, it also announced that it intended to promulgate new, bird-specific regulations, as it did not believe that current standards were appropriate for birds. Notice and comment began shortly thereafter, but no proposed regulations were ever published. In June 2013, PETA sued the USDA, claiming that it had unreasonably delayed taking action on the bird regulations and, invoking section 706(1), requested the U.S. District Court for the District of Columbia to compel the USDA to complete the proposed regulations on a court-ordered schedule and to immediately extend the AWA to birds by enforcing general AWA regulations already on the books. The district court granted USDA's motion to dismiss, holding that PETA had failed to state a claim because enforcement decisions are within USDA's discretion.

The U.S. Circuit Court of Appeals for the District of Columbia Circuit affirmed the decision on alternate grounds. The court first considered whether PETA fulfilled the requirements for organizational standing. PETA argued that the delay in promulgating regulations specific to birds created a confusing regulatory landscape, in which it was not clear what regulations, if any, applied to the conditions in which birds were kept and transported. This, in turn, made it more difficult for PETA to obtain information about those conditions and to submit complaints to the USDA when warranted. PETA claimed that thwarted its organizational objectives of protecting the welfare of animals and educating the public, making its advocacy efforts more costly. The court determined that the need to expend additional resources in response to USDA's inaction constituted a concrete and demonstrable injury supporting organizational standing.

Turning to the substantive claim, the D.C. Circuit held that PETA had failed to plausibly allege that USDA's inaction constituted unlawfully withholding agency action. PETA did not pursue its unreasonable delay argument on appeal, instead claiming only that that the long delay in promulgating bird-specific regulations amounted to unlawful withholding of agency action. Relying on Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), the court held that an unlawful withholding claim can only proceed when a plaintiff asserts that an agency failed to take a discrete action that it is required to take. The court determined that, because there was no express statutory requirement to apply the AWA to birds before the bird regulations were finalized, USDA had not failed to take any required action.

Judge Millett wrote separately that she would have concluded that PETA did not have organizational standing to pursue its claim but for existing precedent on point.

For the full text of the opinion, please see

Panel (if known): Garland, Henderson, Millett

Argument Date (if known): May 14, 2015

Date of Issued Opinion: August 11, 2015

Docket Number: 14-5157

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Matthew D. Strugar, Jeffrey S. Kerr, and Delcianna Winders for Appellant.

William E. Havermann, Ronald C. Machen, and Michael J. Singer for Appellee.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/13/2015 10:39 AM     DC Circuit  

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