ALDF, ET AL v. VENEMAN, ET AL
The Ninth Circuit Court of Appeals today released an opinion in ALDF, ET AL v. VENEMAN, ET AL, No. 04-15788, an appeal in a civil action against the United States. The panel consisted of Alex Kozinski and William A. Fletcher, Circuit Judges, and H. Russel Holland, District Judge.
W. FLETCHER, Circuit Judge:
Plaintiffs, who include the Animal Legal Defense Fund (”ALDF”), the Animal Welfare Institute (”AWI”), and three individuals, challenge the United States Department of Agriculture’s (”USDA”) decision not to adopt a Draft Policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act (”AWA”). Plaintiffs challenge the decision not to adopt the Draft Policy under the Administrative Procedure Act (”APA”) as arbitrary and capricious. The district court did not reach the merits of plaintiffs’ suit because it determined that the USDA’s decision did not constitute reviewable final agency action. We disagree. We hold that at least one of the plaintiffs has standing under Article III of the Constitution, and we conclude that the district court has authority under the APA to review the USDA’s decision not to adopt the Draft Policy. I. Background A. Statutory and Regulatory Backdrop Congress enacted the AWA in 1966 “to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment . . . .” 7 U.S.C. § 2131(1). As originally enacted, the AWA left research facilities largely unregulated. See, e.g., 7 U.S.C. § 2143(a) (repealed 1985). In 1985, Congress amended the AWA by enacting the Improved Standards for Laboratory Animals Act, Pub. L. No. 99-198, 99 Stat. 1645. This amendment to the AWA instructed the USDA to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.” 7 U.S.C. § 2143(a)(1). These stan. . .
KOZINSKI, Circuit Judge, dissenting:
In holding that we can review withdrawal of proposed regulations an agency had no duty to adopt, my colleagues overlook the sea-change in administrative law wrought by Heckler v. Chaney, 470 U.S. 821, 831-32 (1985), which held that we have no authority to review an agency’s discretionary decision not to act. See The Supreme Court–Leading Cases: Judicial Review of Agency Inaction, 99 Harv. L. Rev. 264, 269 (1985) (hereafter “Judicial Review of Agency Inaction“) (”Chaney represents a significant departure from the trend of recent administrative law.”). Failure to appreciate the fundamental distinction between agency action and inaction permeates every aspect of the majority’s analysis, starting with the threshold question of standing. Standing 1. The majority wastes much toner trying to show that USDA’s Draft Policy at issue here would, if adopted, ameliorate the conditions plaintiffs complain about. Maj. op. at 18754-57. Even if this were true, which it is not, see pp. . . .