here<\/a>, 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”).<\/p>\nThe district court dismissed their claims, but recently a panel of the D.C. Circuit reversed, breathing potential life into the case.\u00a0 Am. Anti-Vivisection Soc’y & Avian Welfare Coalition v. USDA<\/em>, No. 19-5015 (D.C. Cir. Jan. 10, 2020).\u00a0 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. \u00a7 706(2)(A), and by compelling agency action “unlawfully withheld or unreasonably delayed,”\u00a05 U.S.C. \u00a7 706(1), both of which the American Anti-Vivisection Society plaintiffs argued.\u00a0 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).<\/p>\nBut the D.C. Circuit panel disagreed with the district court that the plaintiffs’ “unreasonably delayed” claim also failed.\u00a0 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.”\u00a0 Am. Anti-Vivisection Soc’y & Avian Welfare Coalition v. USDA<\/em>, No. 19-5015 (D.C. Cir. Jan. 10, 2020) (slip. op. at 8) (citing Norton v. Southern Utah Wilderness Alliance (SUWA)<\/em>, 542 U.S. 55, 64 (2004)).\u00a0 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.\u00a0 Id<\/em>. at 9.\u00a0 Whether the plaintiffs’ claim ultimately survives, however, turns on whether the issuance of bird regulations has been “unreasonably delayed.”\u00a0 Id. <\/em>at 10.\u00a0 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.\u00a0 Id.<\/em><\/p>\nPlaintiffs and potential plaintiffs often want to argue that an agency has violated the APA by moving too slowly–by “unreasonably delaying” action.\u00a0 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.\u00a0 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.”\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"
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.\u00a0\u00a0But their luck may be changing.<\/p>\n","protected":false},"author":319,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[222,107,513,45,514],"ppma_author":[699],"class_list":["post-289","post","type-post","status-publish","format-standard","hentry","category-general","tag-administrative-procedure-act","tag-animal-welfare-act","tag-birds","tag-peta","tag-rebecca-e-bazan"],"authors":[{"term_id":699,"user_id":319,"is_guest":0,"slug":"rebazan","display_name":"Rebecca E. Bazan","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/bazanrebecca-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/289","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/319"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=289"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/289\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=289"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=289"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=289"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=289"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}