{"id":427,"date":"2021-06-30T15:52:26","date_gmt":"2021-06-30T19:52:26","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=427"},"modified":"2021-06-30T15:52:36","modified_gmt":"2021-06-30T19:52:36","slug":"animal-rights-group-sues-usda-over-non-enforcement-of-animal-welfare-act","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2021\/06\/30\/animal-rights-group-sues-usda-over-non-enforcement-of-animal-welfare-act\/","title":{"rendered":"Animal Rights Group Sues USDA Over \u201cNon-Enforcement\u201d of Animal Welfare Act"},"content":{"rendered":"

By Michelle C. Pardo<\/strong><\/p>\n

Earlier this month, animal rights group The American Society for the Prevention of Cruelty to Animals (ASPCA) filed a lawsuit<\/a> under the Administrative Procedure Act (APA) against the U.S. Department of Agriculture (USDA) for what it alleges to be the agency\u2019s 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.<\/em> (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.<\/p>\n

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.<\/p>\n

The core allegation in ASPCA\u2019s complaint is that the USDA has allowed dog dealers to \u201cflout the AWA\u2019s requirements with impunity.\u201d Complaint \u00b6 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 \u00b6 1. In particular, ASPCA challenges a USDA policy to address minor violations of the AWA that are deemed \u201cteachable moments\u201d and do not result in citations on a USDA Inspection Report. USDA Animal Welfare Inspection Guide \u00a7 2.4.3 (\u201cUSDA Guide\u201d). This guideline, and the agency\u2019s desire to guide and educate licensees on regulatory requirements, is what ASPCA brands as an unacceptable \u201cCustomer Service Policy\u201d that is unfounded, arbitrary, contrary to the text and structure of the AWA, and an unlawful substitute for enforcement actions. Complaint \u00b6\u00b6 3, 10. \u00a0ASPCA alleges that this policy \u201chas enabled licensed dog dealers to commit horrible abuses without repercussions.\u201d Complaint \u00b6 8.<\/p>\n

ASPCA alleges that \u201cTeachable Moments\u201d run contrary to the AWA despite the fact that the Inspection Guide excludes \u201cdirect\u201d or \u201ccritical\u201d non-compliances from Teachable Moments and reserves this label for non-compliances that do not \u201cadversely affect the health or well-being of an animal.\u201d USDA Guide \u00a7 2.4.3. By its own terms, Teachable Moments are also not<\/em> appropriate for facilities that are in the pre-license stage, have a \u201cpoor compliance record,\u201d are under investigation, or have a history of refusal of inspection or interference. USDA Guide at A-9 (Teachable Moments Checklist).<\/p>\n

The ASPCA also claims that the \u201cVeterinary Care Rule\u201d \u201cdirects inspectors not to report certain veterinary issues.\u201d Complaint \u00b6 56. According to the Inspection Guide, minor<\/em> veterinary issues with little or no discernible impact on an animal\u2019s overall health and <\/strong>that are observed in only a small number of the facility\u2019s animals and <\/strong>the issues can be rapidly addressed <\/em>is not considered to be out of compliance. USDA Guide \u00a7 6.4.2.1. Notwithstanding this guidance, ASPCA alleges that this rule \u201cprevents blatant violations of the AWA from being cited on Inspection Reports\u201d and \u201chides certain serious veterinary issues that require medical attention\u2019 from the public entirely.\u201d Complaint \u00b6 59.<\/p>\n

The ASPCA\u2019s lawsuit also challenges the practice of \u201ccourtesy visits\u201d which are mechanisms for licensed dealers to request guidance or suggestions about how to meet compliance standards, as well as the moot \u201cIncentive Program Rule,\u201d which was removed from the Guide in early 2021.<\/p>\n

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\u2019s intent.<\/p>\n

ASPCA\u2019s standing is based on its alleged diversion of \u201climited resources from other public advocacy and education programs\u201d to \u201ccounteract the actions of licensed dog dealers that have been given free passes by [the USDA].\u201d Complaint \u00b6 15. Courts have previously rejected advocacy groups\u2019 diversion of resource as a basis for standing where such resource diversions align with the group\u2019s mission, are ordinary program costs, or prompt the organization to do something that it would do anyway. See, e.g. Humane Soc\u2019y of the U.S. v. Vilsack, <\/em>19 F. Supp. 3d 24, 46 (D.D.C. 2013) (\u201cbeing prompted\u201d to do something organizations do anyway \u201ccan hardly qualify as an injury that confers . . . standing\u201d); Nat\u2019l. Consumers League v. Gen. Mills, Inc.<\/em>, 680 F. Supp. 2d 132, 136 (D.D.C. 2010) (rejecting standing where defendant\u2019s alleged conduct did not hamper plaintiff\u2019s advocacy effort; \u201cif anything it gives [plaintiff] an opportunity to carry out its mission.\u201d).<\/p>\n

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<\/em>). 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\u2019 advocacy campaigns and litigation.<\/p>\n

In 2012, the ASPCA had to divert $9.2 million of its funds<\/a> to Feld Entertainment, Inc. to settle a RICO and attorneys\u2019 fee claim related to ASPCA\u2019s unsuccessful Endangered Species Act case.\u00a0 In that case, ASCPA, other animal rights groups, and their attorneys, paid a former Ringling Bros. and Barnum & Bailey\u2122 employee to participate as a plaintiff in a case targeting the company\u2019s elephants, which the D.C. federal district judge found to be \u201cgroundless and unreasonable from its inception\u201d and that \u201cthe lawsuit was, from the beginning, frivolous and vexatious.\u201d ASPCA v. Feld Entertainment, Inc.<\/em>, 677 F. Supp. 2d 55 (D.D.C. 2009).<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s non-enforcement of the Animal Welfare Act (AWA) as it pertains … <\/p>\n

Continue reading “Animal Rights Group Sues USDA Over \u201cNon-Enforcement\u201d of Animal Welfare Act”<\/span><\/a><\/p>\n","protected":false},"author":318,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[222,44,21,107,208,109,179,776,772,777,175,752,576,37,775,113,773,774,771],"ppma_author":[698],"class_list":["post-427","post","type-post","status-publish","format-standard","hentry","category-general","tag-administrative-procedure-act","tag-animal-activist","tag-animal-rights","tag-animal-welfare-act","tag-apa","tag-aphis","tag-aspca","tag-breeder","tag-dog-breeder","tag-dog-dealer","tag-michelle-c-pardo","tag-resource-drain","tag-rico","tag-standing","tag-teachable-moments","tag-usda","tag-usda-license","tag-veterinary-care-rule","tag-vilsack"],"authors":[{"term_id":698,"user_id":318,"is_guest":0,"slug":"mcpardo","display_name":"Michelle Pardo","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/pardomichelle-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\/427","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\/318"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=427"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/427\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=427"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=427"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=427"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=427"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}