ANIMAL LEGAL DEFENSE FUND, INC., еt al., Appellees, v. Mike ESPY, Secretary, United States Department of Agriculture, et al., Appellants.
Nos. 93-5127 and 93-5140
United States Court of Appeals, District of Columbia Circuit.
Decided July 22, 1994
Argued May 12, 1994.
29 F.3d 720
So ordered.
Harris Weinstein, Washington, DC, argued the cause for the appellants in No. 93-5140. On brief was Michael P. Socarras, Washington, DC.
Valerie J. Stanley, Rockville, MD, argued the cause for the appellees in Nos. 93-5127 and 93-5140.
On the brief were Robert H. Loeffler, Ellen E. Deason, Washington, DC, Stephen S. Dunham, Roxanne Jensen, Denver, CO, and Sheldon E. Steinbach, Washington, DC, for amici curiae urging the district court order should be vacated for lack of jurisdiction.
Before MIKVA, Chief Judge; WILLIAMS and HENDERSON, Circuit Judges.
Concurring opinion filed by Chief Judge MIKVA.
KAREN LECRAFT HENDERSON, Circuit Judge:
The appellants, various government agencies and officials sued below and intervenor National Association for Biomedical Research, seek reversal of a district court decision setting aside United States Department of Agriculture (USDA) regulations promulgated under the Fеderal Laboratory Animal Welfare Act,
The primary purpose of the Act is to ensure the humane care and treatment of various animals used in research or for exhibition оr kept as pets.
(A) for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species where the Secretary finds necessary for humane handling, care, or treatment of animals; and
(B) for exercise of dogs, as determined by an attending veterinarian in accordance with general standards promulgated by the Secretary, and for a physical environment adequate to promote the psychological well-being of primates.
The appellees here challenged regulations promulgated under
As ALDF made clear, the standing inquiry entails two separate components, one constitutional, under article III of the United States Constitution, and one prudential, under the APA:
To secure constitutional standing the plaintiffs must show injury in fact that is fairly traceable to the defendant‘s action and redressable by the relief requested. See Allen v. Wright, 468 U.S. 737 [104 S.Ct. 3315, 82 L.Ed.2d 556] (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 [102 S.Ct. 752, 759-60, 70 L.Ed.2d 700] (1982). To secure judicial review under the APA, they must show that the injuries they assert fall within the “zone of interests” of the relevant statute. See Clarke v. Securities Industry Ass‘n, 479 U.S. 388 [107 S.Ct. 750, 93 L.Ed.2d 757] (1987).
Id. at 498; see also Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 281-82 (D.C.Cir.1988), cert. denied, 490 U.S. 1106 (1989). The regulations here were challenged by six parties: (1) William Strauss, Esq., the “community interest” member of the oversight committee for the Health Science Center at Brooklyn; (2) Dr. Roger Fouts, Director of the Chimpanzee and Human Communication Institute at Central Washington University; (3) Primate Polе Housing, Inc. (PPH), a manufacturer of “pole housing” systems for nonhuman primates; (4) Dr. Bernard Migler, the president of PPH; (5) the Animal Legal Defense Fund, Inc., a nonprofit organization devoted primarily “to protect[ing] animals through the enforcement of statutes, ordinances and regulations” and “to provid[ing] information to its members and other persons who wish to protect animals and enhance their welfare,” Affidavit of Joyce Tischler at 1; and (6) the Society for Animal Protective Legislation, a nonprofit organization devoted to “obtain[ing] enactment of laws, inter alia, for the protection of animals used in laboratories,” Affidavit of Christine Stevens at 1. For the following reasons we hold that none of these parties satisfies both the constitutional and prudential standing components.2
First, our decision in ALDF conclusively precludes standing for Strauss and the two non-profit organizations. Strauss claims standing here, as he did in ALDF, based on his status as an oversight committee member, asserting that the lack of “specific regulations that tell us how to improve conditions for primate psychological well-being and increase exercise for dogs” prevents him from influencing other committee members to improve conditions at the facility and generally fulfilling his role as the committee‘s community interest member. Affidavit of William S. Strauss. In ALDF, Strauss claimed standing on substantially the same ground, alleging that he was unable to carry out his statutory duties “without guidance in the form of specific, detailed regulations.” 23 F.3d at 501. Noting that Strauss “simply maintains that the Secretary has impeded his attempts to enforce the provisions of the statute, in his role as representative of ‘general community interests,‘” the ALDF court concluded that Strauss‘s challenge “amount[ed] to nothing more than an at-
As for the two organizational appellees, their standing claims rest on their аlleged inability, without sufficiently detailed regulations, to monitor compliance with the Act and to disseminate information about compliance to their members. The organizations’ first claim is no more particularized or concrete than Strauss‘s and like his falls short of the article III injury threshold. Their claim of “informational” injury, on the other hand, satisfies the minimum standing requirements of article III but, like the similar claim urged by the organizations in ALDF,3 “does not fall within the ‘zone of interests’ protected or regulated by the Animal Welfare Act.” ALDF, at 501-02. The ALDF court explained that “to come within the zone of interests of the statute under which suit is brought, an organization must show more than a general corporate purpose to promote the interests to which the statute is addressеd“; it must also “show a congressional intent to benefit the organization or some indication that the organization is ‘a peculiarly suitable challenger of administrative neglect.‘” Id. at 503 (quoting Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 283 (D.C.Cir.1988)). The court then concluded that “[t]he Animal Welfare Act precludes any such showing” because “the general informational and educative interests in animal welfare upon which the orgаnizations base their suit are, by the terms of the Act, the province of a different institution altogether,” namely the oversight committees whose members “represent society‘s concerns regarding the welfare of animal subjects used at such facility,”
Next, wе conclude that appellees Migler and Primate Pole Housing, Inc. also fall outside the Act‘s zone of interests. Migler and PPH claim injury from their inability to sell their primate housing systems which, they contend, is the result of the regulations’ failure to require, as it ought, that primates be housed in pairs or groups. This failure, they maintain, permits research facilities to continue using the same cоnventional cages they have in the past and provides no incentive to purchase PPH‘s innovative systems. Whether or not the regulations should require multiple housing of primates, Migler and PPH are not the proper parties to challenge the lack of such a mandate. The Act‘s purpose is to promote the humane treatment of animals, not the sale of any particular housing systems.
Finally, we conclude that Dr. Fouts lacks standing because he has not alleged injury sufficient to satisfy article III requirements. The injury Fouts claims is that the regulatiоns’ “vagueness” prevents him from establishing a plan for his research institute, and in particular for a chimpanzee housing facility now under construction, that he can be certain will pass USDA muster. The harm alleged is insufficient for two reasons.
First, Fouts has not asserted a “distinct and palpable injury to himself,” a standing prerequisite. Warth v. Seldin, 422 U.S. 490, 501 (1975) (emphasis added). Under the Act, it is not individual researchers suсh as Fouts that are subject to regulation, see
Second, even assuming Fouts faced some personal harm from possible noncompliance with the Act or regulations, such a prospect does not satisfy “the requirement that thе plaintiff‘s injury be presently suffered or imminently threatened.” ALDF, at 500. As the Supreme Court has observed, the concept of imminence “has been stretched beyond the breaking point when ... the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff‘s own control.” Lujan, at 564 n. 2. That is the case here. As alleged, Fouts‘s injury is remote and speculative, couched in language of uncertainty and futurity. He asserts, for example, that “because of the vagueness, even though our ‘plan’ may satisfy the present USDA inspector there is no guarantee it will satisfy another one” and that “[t]his could potentially lead to arbitrary decisions that could have a negative effect on the chimpanzees and research.” Affidavit of Dr. Roger S. Fouts ¶ 15 (emphasis added). Regarding the chimpanzee housing facility now under construction, he complains “we are in the position of not being sure if we comply or will comply in the future with the stated regulations for great apes over 110 pounds.” Id. ¶ 7 (emphasis added). Further, the al-
For the preceding reasons we conclude the appellees all lack standing to challenge the USDA‘s regulations. Accordingly, the decision of the district court is vacated and the case remanded with directions to dismiss.
So ordered.
MIKVA, Chief Judge, concurring:
I concur in the majority‘s analysis. I write separately only to emphasize what appellees (plaintiffs below) did not allege as a basis for standing. Had the public interest organizations and individuals challenging the Secretary‘s regulations alleged an interest in protecting the well-being of specific laboratory animals (an interest predating this litigation), I think appellees would have had standing to challenge those regulations for providing insufficient protection to the animals. Such allegations would satisfy the requirements for constitutional standing, as enumerated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). This claim would also place appellees within the “zone of interests” of the Animal Welfare Act: the Act, too, aspires to protect laboratory animals. See Clarke v. Securities Industry Ass‘n, 479 U.S. 388, 394-403 (1987). But appellees never made this claim, and they had the burden of demonstrating the specific basis оf their standing. Lujan, at 2136-37. I therefore concur in the dismissal of their suit.