American Anti-Vivisection Society v. AGRI, 946 F.3d 615

In 2002 Congress amended the Animal Welfare Act (AWA) to make clear that "animal" includes birds not bred for research, creating a statutory duty for USDA to promulgate standards governing humane handling and care of such birds.
USDA acknowledged birds are covered but concluded its existing general standards were inadequate for birds and repeatedly promised (via Federal Register notices) to propose bird-specific regulations; no bird-specific standards have been issued in the 18 years since the amendment.
PETA previously sued USDA over birds; the D.C. Circuit held USDA was not required to apply its general standards to birds and PETA abandoned claims for species-specific rules and an unreasonable-delay claim. People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (D.C. Cir. 2015).
The American Anti-Vivisection Society and the Avian Welfare Coalition sued under the Administrative Procedure Act, alleging (1) arbitrary and capricious agency action in violation of 5 U.S.C. § 706(2)(A) and (2) unlawfully withheld and unreasonably delayed agency action under 5 U.S.C. § 706(1).
The district court dismissed for failure to state a claim. On appeal the D.C. Circuit held the Coalition has Article III standing, affirmed that USDA’s decisionmaking is not "final" for § 706(2)(A) purposes, but concluded USDA has failed to take a discrete action it is required to take under SUWA for § 706(1), and remanded for the district court to decide whether the delay is unreasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing (organizational)	Coalition says USDA’s inaction deprived it of statutorily required standards and forced resource-draining educational work, constituting concrete injury.	USDA argued lack of Article III injury.	Coalition has standing; its operational drain and informational injury are concrete under Havens and PETA.
Final agency action for § 706(2)(A)	USDA’s long inaction is arbitrary and capricious; court can review.	USDA contended its rulemaking is ongoing and not final.	D.C. Cir. agreed with district court: no final agency action—decisionmaking not consummated—so § 706(2)(A) claim fails.
§ 706(1) unlawful withholding / unreasonable delay (discrete action)	USDA is required by the AWA to issue standards for birds (general regs inadequate), so failure to promulgate is a discrete, required action.	USDA relied on PETA and argued no discrete mandatory action exists; process ongoing.	Court held USDA has failed to take a discrete action it is required to take (issuing bird standards) and thus the § 706(1) claim is viable; remanded to decide whether the delay is unreasonable.
Preclusive effect of PETA decision	Coalition distinguishes PETA: that case abandoned species-specific and delay claims; Coalition seeks to force USDA to act on bird standards now.	USDA argued PETA foreclosed similar relief.	Court rejected USDA’s reliance on PETA as controlling here because PETA abandoned the very claims Coalition presses.

People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (D.C. Cir. 2015) (prior D.C. Cir. decision regarding USDA regulation of birds and organizational standing issues)
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) (requires agency action be final for § 706(2) review)
Bennett v. Spear, 520 U.S. 154 (1997) (two-part test for final agency action)
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (agency must have failed to take a discrete, required action for a § 706(1) claim)
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (organizational standing: concrete drain on resources suffices as injury)
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (jurisdictional issues must be decided before merits)
Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (factors for assessing whether agency delay is unreasonable)