In 2002 Congress made clear that the Animal Welfare Act ("AWA") protects birds, but the USDA has not issued bird-specific Animal Welfare Act regulations in the ensuing 18 years, much to the chagrin of animal rights groups. But their luck may be changing.
Starting with People for the Ethical Treatment of Animals ("PETA") in 2013, animal rights groups have tried and failed in bringing lawsuits against the USDA to compel it to promulgate bird-specific regulations. See People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 1091-92 (D.C. Cir. 2015). More recently, as we blogged about here, two other animal rights groups–the American Anti-Vivisection Society and Avian Welfare Coalition–tried again, arguing that USDA's failure to promulgate bird-specific regulations violated the Administrative Procedure Act ("APA").
The district court dismissed their claims, but recently a panel of the D.C. Circuit reversed, breathing potential life into the case. Am. Anti-Vivisection Soc'y & Avian Welfare Coalition v. USDA, No. 19-5015 (D.C. Cir. Jan. 10, 2020). The APA allows courts to address flawed agency action (or lack thereof) in various ways, including by setting aside agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), and by compelling agency action "unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), both of which the American Anti-Vivisection Society plaintiffs argued. The D.C. Circuit panel agreed with the district court that the plaintiffs' "arbitrary and capricious" claim failed, because such claims only apply to final agency action, and the USDA's decision-making process about bird regulations has not been finalized (i.e., it has not actually issued the regulations).
But the D.C. Circuit panel disagreed with the district court that the plaintiffs' "unreasonably delayed" claim also failed. As the panel explained, to bring an "unreasonably delayed" claim, the groups must "assert that [USDA] failed to take a discrete agency action that it is required to take." Am. Anti-Vivisection Soc'y & Avian Welfare Coalition v. USDA, No. 19-5015 (D.C. Cir. Jan. 10, 2020) (slip. op. at 8) (citing Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 64 (2004)). The panel found that the groups successfully made such an assertion–that the AWA requires USDA to issue standards governing the humane treatment of birds, and the USDA has conceded that its general, catch-all AWA regulations are inadequate for birds–therefore USDA has failed to take the "discrete action" that it is "required to take": issuing standards to protect birds. Id. at 9. Whether the plaintiffs' claim ultimately survives, however, turns on whether the issuance of bird regulations has been "unreasonably delayed." Id. at 10. Because that issue was not briefed to the D.C. Circuit, the panel remanded to the district court to consider the issue in the first instance. Id.
Plaintiffs and potential plaintiffs often want to argue that an agency has violated the APA by moving too slowly–by "unreasonably delaying" action. The D.C. courts' previous decisions dismissing animal rights groups' challenges to the USDA's failure to promulgate bird-specific regulations have been a hurdle to such cases. If USDA inaction for 18 years is not "unreasonably delayed," then it is difficult to argue that a shorter time frame of inaction is "unreasonable." Ultimately, it will be up to the American Anti-Vivisection Society plaintiffs to convince the courts that the USDA's inaction on bird regulations has been "unreasonable," but the D.C. Circuit panel has opened the door to that possibility.
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