People for the Ethical Treatment of Animals, Inc. v. TabakPeople for the Ethical Treatment of Animals, Inc. v. Tabak
MEMORANDUM OPINION
Pending before the Court is the motion to dismiss filed by Defendants Lawrence Tabak, in his official capacity as Director of the National Institutes of Health; the National Institutes of Health (“NIH“); Xavier Becerra, in his official capacity as Secretary of the United States Department of Health and Human Services; and the United States Department of Health and Human Services (“HHS“). ECF No. 36.1 The motion is fully briefed, and no hearing is necessary. See
I. Background2
Plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA“) is a non-profit organization “dedicated to protecting animals from abuse, neglect, and cruelty.” ECF No. 1 ¶ 12. PETA‘s mission includes reducing the number of animals harmed in clinical research. Id. ¶ 13. PETA carries out this mission through public education, investigations, protest campaigns, and direct advocacy to government agencies and private researchers. Id. ¶¶ 12-13, 19-24.
For several decades, NIH has funded animal-involved research designed to study the disease pathway of human sepsis, a bacterial infection that kills roughly 270,000 Americans each year. ECF No. 1 ¶¶ 48, 53. Many research studies involve injecting live mice with toxins by puncturing their abdomens, causing the animals great pain and suffering. Id. ¶¶ 55-57. The efficacy of these sepsis studies, however, has been seriously called into question. Over the last 18 years, at least fifteen peer-reviewed studies have taught that mice are a poor substitute for human pathophysiology of sepsis. Id. ¶ 67. One study, published in 2013, concluded that sepsis treatments developed for mice universally failed when administered to humans. Id. ¶ 60. In 2019, an NIH working group tasked with considering the broader applicability of mice studies determined that such studies raised “substantial doubt in the broader scientific community” because the human disease progression for sepsis differs fundamentally from other animals, rendering animal-based studies of limited applicability. Id. ¶¶ 67-68. Despite this, NIH continues to fund sepsis research using mice. Id. ¶ 71, 77-95.
Prior to this lawsuit, PETA challenged NIH‘s funding of animal-based sepsis studies in several ways. For example, PETA has created and disseminated public education materials designed to explain how NIH‘s experiments harm the animal subjects with no utility to humans. Id. ¶¶ 23, 25. PETA has also engaged in direct advocacy, pressing NIH to discontinue funding sepsis studies that harm mice. Id. ¶ 23. In one letter, authored on October 23, 2019, PETA laid out recent research that called into question the efficacy of these experiments. Id. ¶ 72. Three weeks later, on November 14, 2019, NIH responded that it would take PETA‘s position under “further advisement,” but, at present, it viewed the mice-involved experiments as valuable for what the studies might “teach us.” Id. ¶ 73. Since that exchange, NIH has funded at least five specific mice-involved sepsis studies. Id. ¶¶ 77-94.
On September 20, 2021, PETA filed suit challenging NIH‘s decisions to continue funding animal-involved sepsis studies as arbitrary and capricious final agency actions, in violation of the Administrative Procedure Act (“APA“),
On April 21, 2022, Defendants moved to dismiss the action pursuant to
II. Standing
A. Standard of Review
A motion to dismiss for lack of standing implicates this Court‘s subject matter jurisdiction. Beyond Sys., Inc. v. Kraft Foods, Inc., 777 F.3d 712, 715 (4th Cir. 2015). The plaintiff bears the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). If “a claim fails to allege facts upon which the court may base jurisdiction,” the court must dismiss the action. Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005).
In determining whether jurisdiction exists, “the court may look beyond the pleadings and the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue . . . .” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003) (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)) (internal quotation marks omitted). Where the defendant contends that the complaint “simply fails to allege facts upon which subject matter jurisdiction can be based,” the Court construes the complaint facts as true and most favorably to the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Whether the Court retains subject matter jurisdiction must be decided before reaching the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999).
B. Analysis
Defendants first contend that the Complaint must be dismissed because PETA has not suffered a concrete and particularized injury sufficient to confer standing to sue in this Court. ECF No. 39-1 at 17.3 Pursuant to
When an organization sues on its own behalf, as PETA does here, it may establish an injury in fact by showing that defendants’ actions caused “concrete and demonstrable injury to the organization‘s activities,” with a “consequent drain on the organization‘s resources.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). An organization cannot meet the injury-in-fact requirement simply because it chose to divert resources to educate its members or challenge an unlawful action in litigation, as such efforts result “not from any actions taken by the defendant, but rather from the organization‘s own budgetary choices.” Lane v. Holder, 703 F.3d 668, 675 (4th Cir. 2012) (internal quotations and alterations omitted); see also Nat‘l Fed‘n of the Blind, Inc. v. Wal-Mart Assocs., Inc., 566 F. Supp. 3d 383, 395 (D. Md. 2021) (Plaintiffs’ injury was insufficient because it stemmed “exclusively from the costs associated with the instant lawsuit.“). However, where “defendant‘s actions impede [an organization‘s] efforts to carry out its mission” and the organization must divert resources to counteract that harm, the organization has standing to sue. Lane, 703 F.3d at 675; see also Havens Realty, 455 U.S. at 379.
Applying well established precedent in Havens Realty and Lane, the Fourth Circuit recently held that PETA satisfied the injury-in-fact requirement necessary to sue a roadside zoo for violations of the Endangered Species Act. See PETA v. Tri-State Zoological Park of W. Md., Inc., 843 F. App‘x 493, 496 (4th Cir. 2021). In Tri-State, PETA alleged that the defendant zoo had so mistreated the protected species as to constitute a “take” under the statute, and that such unlawful mistreatment frustrated PETA‘s mission to protect animals from abuse. Id. PETA averred in the complaint, and demonstrated at trial, that it had to divert its resources to combat the public misperception that the zoo had taken appropriate care of the animals. Id. PETA also used its resources to complain to the relevant government agencies regarding the zoo‘s poor practices, and to investigate and monitor the zoo‘s misconduct. Id. Collectively these efforts frustrated PETA‘s “ability to engage in mission-related campaigns against other zoos.” Id.
This Court concluded in Tri-State that PETA had established sufficient injury in fact to confer organizational standing, PETA v. Tri-State Zoological Park of W. Md., Inc., 424 F. Supp. 3d 404, 430 (D. Md. 2019), and the Fourth Circuit agreed, Tri-State, 843 F. App‘x at 496. Critically, the Fourth Circuit reasoned that PETA‘s claimed injury did not stem solely from litigation costs. Id. at 497 (citing Lane, 703 F.3d at 675). Rather, PETA sued to redress the ongoing injury caused by Defendants’ frustration of its mission and the consequent diversion of resources that it had suffered apart from litigation. Id.
The Complaint plausibly avers a similar injury here. Contrary to Defendants’ assertions, PETA has made plausible that Defendants’ funding of animal-involved sepsis research without regard to the applicable PHSA regulations frustrates PETA‘s overall mission by subjecting more animals to needless pain and suffering. PETA has necessarily expended resources in an effort to convince the agency to cease funding such studies and adhere to the applicable regulatory criteria. ECF No. 1 ¶¶ 23-26. PETA specifically has organized public pressure campaigns against NIH, written letters to NIH officials
Defendants’ efforts to distinguish Tri-State from this case are unavailing. Defendants maintain that in Tri-State, the defendants had been directly harming animals, whereas here Defendants are merely funding third parties whose experiments allegedly harm the animals. ECF No. 57 at 11. This distinction does not alter the injury-in-fact analysis. Defendants and the grant recipients are partners in causation—the researchers conduct the experiments made possible because of Defendants’ funding. That PETA chooses only to sue Defendants for alleged violations of the APA does not undermine that PETA has diverted significant resources to thwart NIH‘s frustration of its mission to protect animals. This is sufficient to satisfy organizational standing.
Defendants alternatively claim the Complaint fails make plausible how the alleged wrongdoing is both traceable to PETA‘s alleged injury and redressable through this litigation. ECF No. 39-1 at 22. Traceability and redressability “rise or fall together,” and thus are best addressed jointly. Friends for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 323 n. 1 (4th Cir. 2002). Traceability requires a plaintiff to make plausible that the alleged injury “was caused by the challenged conduct of the defendant, and not by the independent actions of third parties not before the court.” Id. at 320. To establish redressability, Plaintiff must allege that it is “likely, and not merely speculative” that the requested relief will redress its injuries. Id.
Here, the alleged injury is directly traceable to Defendants’ approval of the grants because NIH funding enables the research that causes harm to animals. Accordingly, if PETA prevails in this case and obtains an injunction that restricts NIH funding of animal sepsis experiments, PETA‘s injury would be redressed. That PETA‘s success in this lawsuit may not halt all animal-involved sepsis experiments is beside the point: PETA‘s alleged injury does not stem from experimentation on animals in general, but rather from Defendants’ decision to fund animal-involved sepsis research. ECF No. 39-1 at 24; see Massachusetts v. EPA, 549 U.S. 497, 525 (2007) (Plaintiff “need not show that a favorable decision will relieve his every injury.“). Thus, viewing the Complaint in the light most favorable to PETA, the Court concludes that PETA has alleged sufficient facts to establish organizational standing. Defendants’ motion to dismiss for lack of subject matter jurisdiction is denied.4
III. Failure to State a Claim
A. Standard of Review
A motion to dismiss under
B. Analysis
Defendants first maintain that the Complaint fails to identify any “final agency action,” as needed to state a valid APA claim. The APA provides a right to judicial review of any “final agency action for which there is no other adequate remedy in a court.”
Defendants’ argument misses the mark. The APA defines the “grant of money” as agency action.
Apart from the five named grants, however, the Complaint allegations sweep too broadly. Count One also challenges any “approvals of grants to conduct sepsis experiments on animals since October 23, 2019.” ECF No. 1 ¶ 96. Similarly in Count Two, the Complaint alleges as an APA violation “NIH‘s ongoing policy, pattern and practice,” as reflected in the agency‘s written response to PETA‘s October 23, 2019 letter. ECF No. 1 ¶ 98. But as a matter of law, the Court cannot construe a generalized description of a potential course of conduct as a final agency action. “‘Agency action’ not only has a limited meaning, but it also must be ‘circumscribed [and] discrete,’ as those characteristics are inherent in the APA‘s enumeration of the categories of agency action subject to judicial review . . . .” Vill. of Bald Head Island v. U.S. Army Corps of Eng‘rs, 714 F.3d 186, 194 (4th Cir. 2013) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004)). By contrast, where the challenged conduct is so broad as to encompass the agency‘s day-to-day decisions, it invites the type of roving judicial review that “the Supreme Court has explicitly held the APA does not authorize.” Id.
To the extent PETA intends in Count One to pursue a “catch all” claim for any possible animal-involved sepsis research grants apart from the five specific grants, the claim fails as a matter of law. Similarly, the generalized allegation in Count Two for a “pattern and practice” claim premised on NIH‘s commitment only to take PETA‘s concerns “under advisement” is so vague and nonspecific that it cannot survive challenge. These averments, devoid of particularity, would impermissibly invite this Court to sit in review on all grant decisions for sepsis-related research involving animals. Id. Accordingly, the claims challenging grantmaking generally, without more, will be dismissed for failure to plausibly identify a sufficiently circumscribed and discrete final agency action.
Defendants separately contend that NIH grant approvals are unreviewable because they are “committed to agency discretion by law.”
Defendants maintain that the PHSA and its implementing regulations are simply too broad and vague to provide the Court meaningful guidance. ECF No. 39-1 at 27. The Court disagrees. The PHSA requires that NIH‘s grant approval process include “appropriate technical and scientific peer review,” as defined by regulation.
Defendants lastly argue that as to the five enumerated grants, no facts make plausible that NIH‘s funding decisions were “arbitrary and capricious.” ECF No. 39-1 at 30-31.5 To survive challenge at the motion to dismiss stage, the Complaint must make plausible that NIH‘s funding decisions fell outside “the bounds of reasoned decisionmaking.” Balt. Gas and Elec. Co. v. NRDC, 462 U.S. 87, 104 (1983). That is, PETA must allege sufficient facts that the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Viewing the Complaint facts as true and most favorably to PETA, the claim survives challenge. The Complaint avers that NIH arbitrarily disregarded no fewer than fifteen peer reviewed studies published over eighteen years which demonstrate how sepsis in humans fundamentally differs from sepsis in other animals. ECF No. 1 ¶ 67. Indeed, according to NIH‘s own working group on the subject, the growing body of literature has called into question whether using mice in sepsis related studies is still a “best practice” because mice are a poor proxy for humans in this context. Id. PETA thus makes plausible that NIH‘s continued funding of such experiments runs “counter to the evidence” or reflects the agency‘s failure to consider an “important aspect of the problem.” State Farm, 463 U.S. at 43. These facts also call into question whether NIH is subjecting the proposed studies to “appropriate technical and scientific peer review” in advance of issuing the awards.
Defendants, in response, press that NIH did in fact follow its own “well-established” review process and subjected the grant applications to “appropriate” peer review. ECF No. 39-1 at 31. This amounts to a mere “not so” argument to sufficiently pleaded allegations. Cf. City of Columbus v. Trump, 453 F. Supp. 3d 770, 795 (D. Md. 2020). At the motion to dismiss stage, without the benefit of the administrative record, the Court must take the Complaint facts as true and not wade into the merits of the APA claim based solely on Defendants’ denial and a “partial and truncated record.” Id. (quoting Banner Health v. Sebelius, 797 F. Supp. 2d 97, 112-13 (D.D.C. 2011)) (internal quotations omitted). Defendants’ motion to dismiss Count One for failure to state a claim is denied.
IV. Conclusion
Based on the foregoing, the Court grants in part and denies in part Defendants’ motion to dismiss. Count Two of the Complaint is dismissed. Defendants are directed to answer the remaining allegations in the Complaint within 21 days. A separate Order follows.
3/21/2023
Date
/S/
Paula Xinis
United States District Judge