By Michelle C. Pardo
Earlier this month, animal rights group The American Society for the Prevention of Cruelty to Animals (ASPCA) filed a lawsuit under the Administrative Procedure Act (APA) against the U.S. Department of Agriculture (USDA) for what it alleges to be the agency’s non-enforcement of the Animal Welfare Act (AWA) as it pertains to commercially bred dogs. ASPCA v. Animal and Plant Health Inspection Service, et al. (1:21-cv-01600) (D.D.C.).The federal AWA, which was enacted in 1966, regulates the treatment of animals in research, exhibition, transport and by dealers. The AWA is enforced by the USDA, Animal and Plant Health Inspection Service (APHIS). The Animal Care program unit is responsible for promoting and enforcing animal welfare standards, providing guidance and leadership on issues involving regulated animals, and serving as a federal resource on animal welfare issues.
A USDA license is required for anyone who (for compensation or profit) buys, sells or negotiates he sale of dogs for research, exhibition, or use as a pet, or for hunting, breeding or security purposes at the wholesale level. (USDA Tech Note, April 2018). Licensees are subjected to unannounced inspections (typically annually) as well as inspections initiated by complaints received by Animal Care. Violations of the AWA can result in a number of penalties including fines, license suspension, revocation, or enforcement proceedings.
The core allegation in ASPCA’s complaint is that the USDA has allowed dog dealers to “flout the AWA’s requirements with impunity.” Complaint ¶ 1. ASPCA claims that the USDA has abdicated its duties to enforce the AWA and instead chosen to let violations go unreported and unpunished, claiming that the agency has not imposed a penalty against a dog dealer since 2017. Complaint ¶ 1. In particular, ASPCA challenges a USDA policy to address minor violations of the AWA that are deemed “teachable moments” and do not result in citations on a USDA Inspection Report. USDA Animal Welfare Inspection Guide § 2.4.3 (“USDA Guide”). This guideline, and the agency’s desire to guide and educate licensees on regulatory requirements, is what ASPCA brands as an unacceptable “Customer Service Policy” that is unfounded, arbitrary, contrary to the text and structure of the AWA, and an unlawful substitute for enforcement actions. Complaint ¶¶ 3, 10. ASPCA alleges that this policy “has enabled licensed dog dealers to commit horrible abuses without repercussions.” Complaint ¶ 8.
ASPCA alleges that “Teachable Moments” run contrary to the AWA despite the fact that the Inspection Guide excludes “direct” or “critical” non-compliances from Teachable Moments and reserves this label for non-compliances that do not “adversely affect the health or well-being of an animal.” USDA Guide § 2.4.3. By its own terms, Teachable Moments are also not appropriate for facilities that are in the pre-license stage, have a “poor compliance record,” are under investigation, or have a history of refusal of inspection or interference. USDA Guide at A-9 (Teachable Moments Checklist).
The ASPCA also claims that the “Veterinary Care Rule” “directs inspectors not to report certain veterinary issues.” Complaint ¶ 56. According to the Inspection Guide, minor veterinary issues with little or no discernible impact on an animal’s overall health and that are observed in only a small number of the facility’s animals and the issues can be rapidly addressed is not considered to be out of compliance. USDA Guide § 126.96.36.199. Notwithstanding this guidance, ASPCA alleges that this rule “prevents blatant violations of the AWA from being cited on Inspection Reports” and “hides certain serious veterinary issues that require medical attention’ from the public entirely.” Complaint ¶ 59.
The ASPCA’s lawsuit also challenges the practice of “courtesy visits” which are mechanisms for licensed dealers to request guidance or suggestions about how to meet compliance standards, as well as the moot “Incentive Program Rule,” which was removed from the Guide in early 2021.
Throughout its complaint, ASPCA takes issue with USDA policy that emphasizes the importance of treating its licensed dealers like customers and criticizes it for trying to foster cooperative relationships with the regulated entities, all of which it claims is contrary to the AWA’s intent.
ASPCA’s standing is based on its alleged diversion of “limited resources from other public advocacy and education programs” to “counteract the actions of licensed dog dealers that have been given free passes by [the USDA].” Complaint ¶ 15. Courts have previously rejected advocacy groups’ diversion of resource as a basis for standing where such resource diversions align with the group’s mission, are ordinary program costs, or prompt the organization to do something that it would do anyway. See, e.g. Humane Soc’y of the U.S. v. Vilsack, 19 F. Supp. 3d 24, 46 (D.D.C. 2013) (“being prompted” to do something organizations do anyway “can hardly qualify as an injury that confers . . . standing”); Nat’l. Consumers League v. Gen. Mills, Inc., 680 F. Supp. 2d 132, 136 (D.D.C. 2010) (rejecting standing where defendant’s alleged conduct did not hamper plaintiff’s advocacy effort; “if anything it gives [plaintiff] an opportunity to carry out its mission.”).
ASPCA is being represented by Cooley LLP. It is not uncommon for ASPCA, PETA and other animal rights groups to be represented by Am Law 100 law firms (often pro bono). Curiously, some of these law firms represent the animal rights groups while also representing businesses and organizations that utilize animals, such as clothing manufacturers, food and agriculture, drug testing companies and exhibitors like zoos and aquariums, which typically are targeted by animal rights’ advocacy campaigns and litigation.
In 2012, the ASPCA had to divert $9.2 million of its funds to Feld Entertainment, Inc. to settle a RICO and attorneys’ fee claim related to ASPCA’s unsuccessful Endangered Species Act case. In that case, ASCPA, other animal rights groups, and their attorneys, paid a former Ringling Bros. and Barnum & Bailey™ employee to participate as a plaintiff in a case targeting the company’s elephants, which the D.C. federal district judge found to be “groundless and unreasonable from its inception” and that “the lawsuit was, from the beginning, frivolous and vexatious.” ASPCA v. Feld Entertainment, Inc., 677 F. Supp. 2d 55 (D.D.C. 2009).