[00:00:01] Speaker 00: Case number 14-5157. [00:00:03] Speaker 00: People for the Ethical Treatment of Animals Appellant versus United States Department of Agriculture and Thomas J. Vilsack and his official capacity as Secretary of the United States Department of Agriculture. [00:00:14] Speaker 00: Mr. Struger for the Appellant, Mr. Haffman for the Appellees. [00:00:43] Speaker 03: You'll please the court, Matthew Strugar, for the plaintiff appellants in this matter. [00:00:46] Speaker 03: I'd like to reserve two minutes for rebuttal. [00:00:50] Speaker 03: Your Honor, the USDA's refusal to apply the Animal Welfare Act to birds is traditionally reviewable and at the very least requires the production of the administrative record in this case. [00:00:59] Speaker 03: The district court's ruling granting the government's 12 v 6 motion is an error for at least four separate reasons. [00:01:06] Speaker 03: First, the Animal Welfare Act provides a substantive framework for the agency to apply taking this case out. [00:01:11] Speaker 02: I just want to be, I'm sorry to interrupt you, but I want to be clear on what we still have on appeal. [00:01:16] Speaker 02: So am I right that you're not appealing the judge's decision with respect to the failure or delay in issuing bird specific regulations? [00:01:29] Speaker 03: That's correct, Your Honor. [00:01:30] Speaker 03: Claims he was not appealed in this case. [00:01:31] Speaker 02: So the only issue is failure to enforce general regulations. [00:01:38] Speaker 03: Well, it's the failure to apply the act in any way. [00:01:41] Speaker 03: The statute does not, when Congress included BIRDS in the Animal Welfare Act explicitly in 2002. [00:01:46] Speaker 02: But you're not encompassing within that any failure to issue a regulation specifically with respect to BIRDS? [00:01:52] Speaker 03: That's correct. [00:01:53] Speaker 03: The framework is there, Your Honor. [00:01:55] Speaker 05: This is entirely a non-enforcement claim, a failure to enforce. [00:02:00] Speaker 03: No, it's a failure to apply the act in any way. [00:02:03] Speaker 03: I think there are three. [00:02:04] Speaker 05: What's the difference between a failure [00:02:06] Speaker 03: Well, it's not like this court's single-shot enforcement decisions like Crowley or the other cases where they're petitioning for an enforcement in a particular action. [00:02:19] Speaker 05: I understand, but they're not enforcing the law in any way. [00:02:21] Speaker 03: They're not enforcing the law in the sense that they are not inspecting regulated entities, and they are not issuing citations, and they're just claiming birds are outside their jurisdiction, are currently not regulated. [00:02:35] Speaker 03: But they're also not licensing facilities. [00:02:38] Speaker 03: In the Act, Section 2130. [00:02:40] Speaker 03: 2133 requires the agency to issue licenses. [00:02:45] Speaker 05: Issue licenses when somebody applies. [00:02:47] Speaker 05: Has anybody applied? [00:02:48] Speaker 03: Well, we don't have the administrative record. [00:02:51] Speaker 03: I think that's a merits question, Your Honor. [00:02:53] Speaker 03: We haven't been able to see if anyone's applied. [00:02:55] Speaker 03: We do have the agency declaring in their own policy guidance that one never needs a license to auction birds. [00:03:02] Speaker 03: Birds are listed in a category of never need a license. [00:03:05] Speaker 03: And our allegations are that the agency is informing exhibitors, dealers, that they do not currently need licenses despite Congress's inclusion of the birds. [00:03:15] Speaker 05: Do you mind addressing standing to start with? [00:03:18] Speaker 05: In particular, do you have a case in which this organizational standing construct has been extended to a claim that the government has failed to, use your verb, you don't like my enforced verb, has failed to [00:03:35] Speaker 05: apply the law in any manner to a third party. [00:03:39] Speaker 03: To a third party. [00:03:40] Speaker 03: Yes, Your Honor. [00:03:41] Speaker 03: I think this court's case in the Alliance of Senior Citizens of Greater Philadelphia versus Heckler, there the Alliance represented senior citizens who had standing to sue the Department of Health and Human Services over regulations that were... No, you see there the government had issued specific regulations that had sort of cut off and interfered with the way a prior general law regulations had worked. [00:04:03] Speaker 05: That wasn't [00:04:04] Speaker 05: the agency not doing anything at all. [00:04:05] Speaker 05: That was the agency doing something that changed the landscape. [00:04:10] Speaker 05: Would you agree? [00:04:11] Speaker 03: Well, the agency issued regulations that the plaintiffs believed, if enforced more in line with the statute, would have provided them the relief that they seek. [00:04:25] Speaker 03: It was the sort of under-regulation there that harmed those plaintiffs. [00:04:31] Speaker 05: I thought the regulations there had changed the information flow. [00:04:34] Speaker 05: to the plaintiffs. [00:04:36] Speaker 03: Well, sure. [00:04:37] Speaker 03: And the plaintiffs there believe that if they got the information that they sought, they wouldn't have to spend the additional money that they're doing on counseling and referral activities. [00:04:48] Speaker 03: It's analogous to our claim here that if the USDA carried out the inspections that it is required to carry out, it would issue the inspection reports that the agency generally issues after it carries out inspections. [00:05:02] Speaker 05: Is there anything in the statute that entitles [00:05:05] Speaker 05: individuals to information or obligates the government in any way to provide public information? [00:05:14] Speaker 03: I'm not sure whether the requirement of them issuing the inspection report is in the statute of honor or whether that's in the regulations or whether that's just a matter of agency practice. [00:05:23] Speaker 05: Does that not make a difference then to whether normally in informational injury cases we always require or show in that the law creates a right to information in individuals? [00:05:35] Speaker 03: Well, like the Alliance of Senior Assistance cases, this isn't simply an informational injury. [00:05:40] Speaker 03: This is that PETA typically carries out its mission. [00:05:44] Speaker 03: There's sort of this information, there's this mission [00:05:47] Speaker 03: issue of impairment of mission, and there's the diversion of resources issue. [00:05:52] Speaker 03: PETA's mission is to prevent cruelty to birds, and the way that this impairs PETA's mission is by carrying out, by cutting off some of that information that PETA would normally use. [00:06:03] Speaker 03: But also, it prevents PETA from not just getting that information, but following its normal practice of preventing cruelty to animals and exhibition. [00:06:11] Speaker 05: How do they prevent you from doing that? [00:06:13] Speaker 03: Well, they prevent us from doing that in the case of Byrd's in that we now submit complaints to the USDA and the USDA consistently... But you have no right to action on individual complaints or all of your complaints. [00:06:24] Speaker 05: You have no right to that. [00:06:25] Speaker 06: Excuse me? [00:06:26] Speaker 05: You have no right to... You would agree in the single shot theory that you don't have a right to action on any individual complaint or all of your complaints. [00:06:33] Speaker 05: I could say... [00:06:34] Speaker 03: Right the wrong way they could say no PETA complaints for action sure I think that gets back to whether there's a policy or whether this is a single-shot enforcement here Well that's a merits issue. [00:06:44] Speaker 05: I'm still trying to get on standings. [00:06:46] Speaker 05: I'm trying to understand how you're injured by the fact that they haven't acted on your Complaints well there there are two issues. [00:06:55] Speaker 03: So there's the impairment of PETA's mission and [00:06:58] Speaker 05: I'm trying to very much understand how this isn't a direct impairment. [00:07:04] Speaker 05: What they're doing to you that impairs your mission? [00:07:11] Speaker 03: PETA has a mission to prevent cruelty to birds. [00:07:15] Speaker 03: It typically carries that out through issuing, through [00:07:20] Speaker 03: making complaints to the agency and from getting information from the agency. [00:07:25] Speaker 03: The injury comes in in the resource prong and there PETA has to spend money. [00:07:31] Speaker 03: It's the spend money to [00:07:34] Speaker 03: research state and local wildlife cruelty to animals issues and pursue relief that way, which causes, you know, if the agency was carrying out the act to birds, as to birds, PETA would not have to expend those resources. [00:07:51] Speaker 03: PETA has to send its own monitors to investigate allegations of animal cruelty. [00:07:55] Speaker 03: And PETA has to find other ways to obtain information about bird cruelty that would typically be provided in these USDA complaints. [00:08:04] Speaker 05: So how would that distinguish all kinds of standing cases where the Supreme Court said no standing? [00:08:11] Speaker 05: In Clapper, for example. [00:08:14] Speaker 05: If they just said, we are an organization devoted to [00:08:17] Speaker 05: opposing governmental monitoring. [00:08:21] Speaker 05: And when it turns out, boards out that the NSA is doing X, Y, and Z, and that they're doing it for national security, we have to spend an awful lot of time saying that's not a good way of doing national security, you shouldn't do this, here are the things you should do to try to find out if the NSA is monitoring you, or don't call this person, and now we're gonna have to maybe tell our folks you should talk in person rather than phone, [00:08:47] Speaker 05: Would they have gotten standing in Clapper in that way, if they just alleged it that way? [00:08:51] Speaker 03: Well, the problem in Clapper was that there was essentially five levels of attenuation. [00:08:55] Speaker 03: The plaintiffs did not know for sure that the statute was being applied to them. [00:08:59] Speaker 03: They took action based on a speculative view. [00:09:02] Speaker 05: So you're even further away, because there's nothing being applied to you, and you want nothing applied to you. [00:09:07] Speaker 05: So you're even further removed from the folks in Clapper. [00:09:09] Speaker 05: Well, they at least thought there was a chance they were being. [00:09:12] Speaker 05: Not enough of a chance, in court, to be, but there's always a chance. [00:09:14] Speaker 05: You don't even have any chance. [00:09:16] Speaker 05: of the government doing anything to you? [00:09:19] Speaker 03: Well, but there's plenty of cases, Your Honor, and I think that the Glickman decision is the discourse en banc decision in ALDF versus Glickman gets to this. [00:09:28] Speaker 03: It's not a resource injury diversion. [00:09:30] Speaker 03: It's sort of this causation issue that I think Your Honor is getting at, where the government's failure to regulate third parties that causes an injury to the plaintiff is sufficient. [00:09:40] Speaker 03: The Glickman case compiles [00:09:43] Speaker 03: something, you know, a handful of six, seven, eight Supreme Court cases where government's failure to regulate a third entity can cause sometimes aesthetic injuries, sometimes environmental injuries. [00:09:55] Speaker 05: No, but I thought your argument was one more removed. [00:09:57] Speaker 05: Yours is that the government's failure to regulate causes injury to birds. [00:10:02] Speaker 05: And then that requires you to do things in response to the injuries to birds. [00:10:06] Speaker 03: Well, it impairs PETA's mission to prevent cruelty to birds, and it requires PETA to continue with its mission to expend these resources on monitoring, researching state and local wildlife statutes, conducting investigations, going out to these facilities ourselves to see what we can do to [00:10:26] Speaker 03: carry out PETA's mission of preventing cruelty to birds. [00:10:33] Speaker 03: I'd like to get back to the statutory command. [00:10:42] Speaker 03: Heckler's presumption of unreviewability of enforcement is inapplicable whether it's, quote, law to apply. [00:10:47] Speaker 03: And the Animal Welfare Act has that command, and it is law to apply in this case. [00:10:54] Speaker 03: As we stressed in our briefs, all application and enforcement of the Animal Welfare Act is predicated on the Act of Licensure, essentially three sections that work in concert. [00:11:04] Speaker 03: Section 2143 requires that the agency promulgate welfare standards and what topics those standards must address. [00:11:11] Speaker 03: Section 2134 mandates that dealers and exhibitors obtain those licenses. [00:11:17] Speaker 03: It requires the private entities to obtain those licenses. [00:11:20] Speaker 03: Section 2133 ties those two requirements together by stating that the agency shall issue licenses [00:11:27] Speaker 03: once someone has applied for a license and once it has shown that they are in compliance with the welfare standards. [00:11:34] Speaker 03: The 2143 mandate was fulfilled decades ago. [00:11:38] Speaker 03: There are these general standards that apply, general umbrella standards from animals as small as chipmunks to animals as large as elephants that include flying animals, including bats. [00:11:51] Speaker 03: They're the most basic standards, Your Honor. [00:11:52] Speaker 03: They require access to clean water, access to food, that waste be removed from enclosures. [00:11:56] Speaker 02: Do any of these provisions require this to be done within any time limit? [00:12:01] Speaker 03: Well, they exist. [00:12:03] Speaker 02: I know they exist, but explaining what the policy here is, [00:12:09] Speaker 02: As you've quoted, the policy on its face is we're not going to start enforcing until we get animal-specific, bird-specific regulations, correct? [00:12:19] Speaker 03: Correct. [00:12:19] Speaker 02: So it's not a... [00:12:22] Speaker 02: it uses the Supreme Court's words, abdication in general of enforcement. [00:12:26] Speaker 02: It's a decision not to enforce until there are bird-specific regulations, right? [00:12:32] Speaker 02: Is that right? [00:12:34] Speaker 03: Well, there is no requirement in the statute to promulgate bird-specific standards. [00:12:39] Speaker 02: I appreciate it, but nonetheless, their policy is not that we're never going to do this. [00:12:44] Speaker 02: Their policy is we're not going to do this until we have the regulations, right? [00:12:48] Speaker 02: Correct. [00:12:49] Speaker 02: And you are not challenging the either failure to issue those regulations or the delay, right? [00:12:55] Speaker 02: That's what you told me at the beginning. [00:12:57] Speaker 03: Correct, because the statute requires that they, the statute covers all animals who do not have species-specific standards. [00:13:04] Speaker 02: There are currently no species-specific standards. [00:13:05] Speaker 02: Right, and I'm focusing on the time frame, not on, assume for the purpose of this discussion that I agree with you, that they have an obligation at some point to issue, to enforce [00:13:18] Speaker 02: But the only policy that you're attacking is a policy of postponing the enforcement until the completion of a set of regulations. [00:13:32] Speaker 02: Why isn't this governed by the Cutler case, where that was exactly the issue and where the court [00:13:40] Speaker 02: seemingly held both that Cheney bars and that even if Cheney doesn't bar, it's not unreasonable to wait until you have specific regulations. [00:13:50] Speaker 03: I think the first answer to Your Honor's question is that Cutler v. Hazel decided on a motion for summary judgment. [00:13:57] Speaker 03: And the question of what the government is doing on bird-specific standards is a merits question. [00:14:03] Speaker 03: There's nothing in our complaint that alleges that they're working on bird-specific standards. [00:14:07] Speaker 02: The question is, what is the policy you're attacking? [00:14:11] Speaker 02: You agree that the policy you're attacking is not enforcing until you, whether or not they're working on it, until you have them, until they have them, they're not going to enforce it. [00:14:20] Speaker 02: That's what they've said. [00:14:22] Speaker 02: So whether that they're working on it, I'm somewhat befuddled about why you haven't appealed the second question. [00:14:30] Speaker 02: If you had appealed the second question, you would have an argument about their delay, their intentional decision not to issue them, whatever. [00:14:39] Speaker 02: You'd have a track-like argument, which I don't understand why you're not making. [00:14:43] Speaker 02: But you're not making any of those arguments. [00:14:45] Speaker 03: The district court found that under SUA, if the statute doesn't command a [00:14:52] Speaker 03: a timeline for them to carry out bird-specific standards, that when it's a self-imposed agency duty, that the agency can take all the time that they want. [00:15:01] Speaker 03: So below, on claim two, the agency said, claim one fails because we have self-delegated this requirement to require bird-specific standards. [00:15:12] Speaker 03: So, you know, give us time. [00:15:14] Speaker 03: We're going to get to it. [00:15:16] Speaker 03: And claim two fails because, well, it was self-delegated, so there can be no delay. [00:15:20] Speaker 03: We could wait 100 years because we gave ourselves this requirement. [00:15:24] Speaker 02: This court ruled against you on both grounds. [00:15:26] Speaker 02: So the fact that this court ruled against you on the second claim wasn't a reason not to appeal. [00:15:31] Speaker 02: There must be some tactical reason that I'm not understanding about why you're not appealing the second dismissal and are appealing the first. [00:15:40] Speaker 03: The reason is because the [00:15:42] Speaker 03: Claim one gets relief to birds immediately. [00:15:44] Speaker 03: There are general standards. [00:15:46] Speaker 03: They can be easily applicable to birds. [00:15:48] Speaker 03: They are applicable to all sorts of other animals. [00:15:51] Speaker 02: But you agree there's no statutory requirement that they act immediately or that they act before they issue bird-specific regulations. [00:16:02] Speaker 02: There's nothing in the statute that says they have to do that. [00:16:05] Speaker 03: When the Congress amended the statute to have birds specifically included as animals, it's now been 45 years that warm-blooded animals were covered under the statute. [00:16:18] Speaker 03: For decades, the agency said, even though birds are warm-blooded, we're not going to apply the act to them. [00:16:25] Speaker 03: When Congress stepped in in 2002 and said, include birds, rats, and mice under the statute, under the Act of Protection, the agency within two years for rats and mice said, we're going to apply the general standards to birds and mice while we consider whether there are species-specific standards appropriate for those two animals. [00:16:44] Speaker 03: Perhaps two years was [00:16:47] Speaker 03: an adequate amount of time for the agency to say, okay, there's a statutory change, we are going to take action. [00:16:53] Speaker 03: For birds, it has now been 13 years. [00:16:56] Speaker 03: Our position is that when Congress changed the law in 2002 to say that birds are governed under the statute, at that point, the statute applied to them. [00:17:07] Speaker 03: The general welfare standards should be applied, licenses need to be issued, private individuals need to obtain licenses, [00:17:14] Speaker 03: And we didn't bring this case back in 2002 because we understand that the agency needs probably a little bit of time to get off the ground. [00:17:23] Speaker 03: But the general standards apply in this case. [00:17:29] Speaker 03: We filed an unreasonable delay claim after there has been, initially in 2005, there was, they said, specific standards were coming in 10 months. [00:17:37] Speaker 03: They sent 12 different times. [00:17:38] Speaker 02: But that's not before us now, right? [00:17:41] Speaker 03: No, but I think it informs the fact that [00:17:44] Speaker 05: that the statute is not being applied as to the general standards and licenses are not being issued. [00:18:00] Speaker 03: Yeah, in a reasonable way, enforcing that to birds in any way. [00:18:05] Speaker 05: That argument does not encompass anything specific like a failure to promulgate regulations. [00:18:11] Speaker 03: No, it does not encompass anything like a failure to promulgate regulations. [00:18:14] Speaker 03: The regulations exist. [00:18:16] Speaker 03: The regulations are there. [00:18:18] Speaker 03: They are general standards that apply to all animals who do not have specific standards. [00:18:22] Speaker 03: There are currently no specific standards for birds. [00:18:25] Speaker 03: as with rats and mice, once Congress said include these three. [00:18:29] Speaker 05: I'm trying to understand from your reply, Brady, is your argument that it's unreasonable delay because until they get the specific ones, they should at least apply the general ones? [00:18:38] Speaker 03: Absolutely. [00:18:39] Speaker 03: Our position is that the general standards apply and that they need, the general standards exist and they need to be applied. [00:18:47] Speaker 05: So it's unreasonable to lay in not making a decision that says we'll do the general ones until... We're not asking for any decision, Your Honor. [00:18:56] Speaker 03: There are general standards that apply to all animals. [00:19:00] Speaker 05: After the prior NPRM, they'd have to make some sort of statement that says, never mind, we think the general stuff is good enough for the interim. [00:19:08] Speaker 05: Wouldn't they have to say something? [00:19:10] Speaker 03: They may have to say, yes, as they did with rats and mice, while we consider bird-specific standards, we will apply the general standards. [00:19:24] Speaker 05: I have just a fact question. [00:19:28] Speaker 05: I would think a number of animal facilities would have both birds and other animals that are covered by the AWA. [00:19:36] Speaker 05: And so what am I wrong? [00:19:38] Speaker 05: Is there a huge body of entities, potentially regulated entities, that only have birds that, in your view, need to be covered? [00:19:48] Speaker 05: Or is the problem that the government, part of the problem that the Secretary is actually enforcing the law against, you know, every part of the zoo except the aviary? [00:19:55] Speaker 03: The latter, Your Honor. [00:19:56] Speaker 03: We have, we have, there's in the record there the case of a zoo that had many different types of animals where feral dogs got in and tore apart flamingos while they were alive. [00:20:05] Speaker 05: Yeah, I saw your examples. [00:20:06] Speaker 05: Is that the bulk of what, where birds are or is there just a whole, I just don't know enough. [00:20:11] Speaker 03: I haven't gotten an administrative record yet in this case, Your Honor. [00:20:13] Speaker 05: You know, I thought as Peter you might have a sense of [00:20:16] Speaker 05: where these birds are that are being injured in this tree. [00:20:18] Speaker 03: My sense is that most of these facilities exhibit other animals already, and so that it certainly wouldn't be a great burden on the agency to not just throw up its hands and say, well, birds aren't regulated, wild dogs can come in and maul, or we can allow 500 parakeets to starve to death as the examples in our briefs. [00:20:36] Speaker 02: Any other questions? [00:20:37] Speaker 02: Thank you. [00:20:38] Speaker 03: Thank you, Your Honor. [00:20:52] Speaker 04: may it please the court, will have them in on behalf of the U.S. [00:20:54] Speaker 04: Department of Agriculture. [00:20:56] Speaker 04: As PETA acknowledges, PETA no longer alleges the agency has unreasonably delayed promulgating bird-specific regulations. [00:21:03] Speaker 04: PETA raised that argument below, the district court rejected it, and it has not pressed that argument on it. [00:21:08] Speaker 05: Can I say something about the coverage of birds, just to clarify, is it your view that Chevron step one now makes birds [00:21:15] Speaker 05: covered since the amendment by Congress that had the exception for once raised in research facilities, or is it a Chevron step to a perfectly sensible construction of that exception that in fact they are then regulated in the body of that act? [00:21:30] Speaker 04: The agency hasn't taken a formal position on that, Your Honor. [00:21:33] Speaker 04: I think that [00:21:34] Speaker 04: There could be an interpretation of the Act that would exclude birds, since it's actually an exclusion of birds not bred for use in research, rather than an inclusion of birds that are not bred for use in research. [00:21:46] Speaker 04: But the agency interprets the amendment to include birds not bred for use in research into the Act, regardless of whether it's step one or step two. [00:21:55] Speaker 04: That is the interpretation that the agency has made. [00:22:00] Speaker 04: Does that answer your question? [00:22:01] Speaker 05: Well, I guess if it was step two, then the next question would be, does that mean that you would then, because it's step two, in the course of deciding whether they're covered, you might have more discretion deciding how they're covered and differential treatment between them and other animals might be more readily justified than if it was deemed to be a mandatory coverage on the same terms as every other animal. [00:22:23] Speaker 04: I see, Your Honor. [00:22:24] Speaker 04: I think that the agency interpreted the Act, interpreted the 2002 amendments from the Act to include birds not bred for use in research. [00:22:33] Speaker 05: But... Has anyone ever applied for a license for birds? [00:22:37] Speaker 04: The record does not contain that information, Your Honor. [00:22:39] Speaker 05: I think that... The record of this case? [00:22:41] Speaker 04: The record of this case does not. [00:22:42] Speaker 05: Does your client know? [00:22:44] Speaker 04: I think that there is an informal understanding between the agency and between [00:22:49] Speaker 04: facilities that deal or licensing birds, that on a temporary basis, those facilities need not apply for licenses. [00:22:57] Speaker 05: How did that understanding come to be? [00:23:00] Speaker 04: There is an informal notice on the agency's website. [00:23:03] Speaker 05: What makes that informal rather than formal? [00:23:06] Speaker 05: If it's on the agency's website, everybody knows, you know, everybody knows, don't worry, this law doesn't apply to you for now, and that for now has stretched to a decade. [00:23:18] Speaker 04: Well, the policy on its face says that it's intended for guidance only. [00:23:22] Speaker 04: But Your Honor is right that [00:23:25] Speaker 04: there is an understanding between regulated parties and the agency, but for the time being, as the agency determines. [00:23:31] Speaker 05: Why isn't something like that evidence of a policy of non-unfortunate? [00:23:37] Speaker 04: Well, Your Honor, this Court in Crowley articulated the standard that's required to show a reviewable policy as either being something that's gone through notice of common rulemaking or something akin to a universal policy statement. [00:23:48] Speaker 04: That is a rule. [00:23:50] Speaker 05: And here, the District Court found... A formal pronouncement by the Secretary of Agriculture [00:23:55] Speaker 05: I have decided that we will not regulate birds. [00:23:58] Speaker 05: Doesn't count? [00:24:00] Speaker 04: I think that the district court is right that that does not count. [00:24:02] Speaker 04: But even if the court believes that's incorrect, even if this court thinks that that's enough to get rise to the policy. [00:24:08] Speaker 05: Why wouldn't that count? [00:24:09] Speaker 05: It sounds like a final agency action. [00:24:11] Speaker 05: It sounds like a formal statement of position. [00:24:14] Speaker 04: Well, the agency is not published in the Federal Register. [00:24:16] Speaker 04: The agency could change its mind. [00:24:18] Speaker 04: It's not sufficiently formalized, not sufficiently. [00:24:20] Speaker 05: Well, agencies can change their minds even when things are published in the Federal Register. [00:24:24] Speaker 05: I'm not sure that's much of a metric. [00:24:26] Speaker 04: Your Honor, even if you conclude that the district court is wrong, that this is sufficiently formal to qualify as a reviewable policy, you still run into the Cutler case and the Association of Irrigated Residents case, where the agency action in that case, the agency policies in those cases, were more formalized, more [00:24:44] Speaker 04: I can't imagine what's more generally accepted than we know, everybody knows, see the website. [00:24:55] Speaker 04: Well, in Cutler v. Hayes, Your Honor, page 882 of that opinion, the court said that FDA made clear that it will not presently take enforcement action [00:25:03] Speaker 04: against an over-the-counter driver. [00:25:05] Speaker 05: How long was it presently there? [00:25:06] Speaker 05: How long had presently gone on for? [00:25:08] Speaker 04: Presently it was 25 years in that case. [00:25:10] Speaker 04: The FDCA was amended in 1962, and that case was decided in 1987. [00:25:15] Speaker 05: And when did the statement come out from the agency? [00:25:17] Speaker 04: When did the statement come out? [00:25:19] Speaker 05: In that case... The presently statement that you were quoting? [00:25:23] Speaker 04: In that case, it was a policy whereby the agency was deferring bringing enforcement action against ineffective over-the-counter drugs. [00:25:32] Speaker 02: Just say again, the page site for Cutler where you were reading from. [00:25:35] Speaker 04: That's page 882 of Cutler. [00:25:42] Speaker 04: And so in that case, the agency had made clear, as the court identified in public, that it was not going to take enforcement actions against safe, but ineffective, overweight counter drugs until it had completed a comprehensive study that followed the drugs and effects. [00:25:57] Speaker 02: But I'm confusing two different things. [00:25:58] Speaker 02: I thought you were citing this for the proposition that it didn't, Cutler says this is not enough to have a policy. [00:26:04] Speaker 02: Is that what you're saying? [00:26:05] Speaker 04: I think that under this court's subsequent precedent, it talks about whether a policy is sufficiently formal and universal. [00:26:11] Speaker 02: I thought you were citing Cutler for this proposition. [00:26:13] Speaker 02: That's right. [00:26:13] Speaker 02: But Cutler takes it as a given that the FDA has a policy of postponing enforcement. [00:26:20] Speaker 04: I think that it uses the term policy, but I think that it uses the term policy in a different way. [00:26:25] Speaker 02: Where does it say that it's not concrete enough to be considered as a policy interchange? [00:26:31] Speaker 02: The point of Cutler, Your Honor, is that although there was a, although it was... I know you won in Cutler, and maybe you'll win as a result here, but I'm only on this one particular question, which I'm [00:26:44] Speaker 02: also having difficulty with an Adams versus Richardson, there was no policy of not enforcing the anti-segregation rules. [00:26:51] Speaker 02: There was no official policy. [00:26:53] Speaker 02: The court just found that the agency just wasn't doing it. [00:26:58] Speaker 02: Here it seems just like in Cutler, you have an announcement that you are not going to enforce the rules pending, you're not going to enforce anything with respect to birds pending the issuance of [00:27:12] Speaker 02: bird-specific regulations. [00:27:13] Speaker 02: That seems to be enough to have a policy. [00:27:15] Speaker 02: Now, whether it's a policy that's an exception to Cheney vs. Eckler vs. Cheney is a different matter. [00:27:20] Speaker 04: That's right, Your Honor. [00:27:21] Speaker 02: Do you agree with me, then? [00:27:22] Speaker 04: Yes, I'm with you. [00:27:23] Speaker 04: My response to Judge Millett's question was that even if this Court concludes that the District Court was wrong, [00:27:27] Speaker 04: That is, that there is something that's sufficiently concrete to qualify as a policy, you still run into the problem of Keller v. Hayes, which shows that nevertheless is subject to the Hegler v. Cheney presumption of unreviewability, because this is just a temporary decision by an agency not to bring enforcement actions as it figures out how to accommodate [00:27:48] Speaker 02: So then you agree the district court was wrong on this one point that we were starting talking about? [00:27:55] Speaker 04: I don't think that the district court was wrong. [00:27:57] Speaker 04: I think that the district court had a sound basis for concluding that this was a concrete, insufficiently universal to qualify as a policy. [00:28:05] Speaker 04: But even if this court concludes that the district court was wrong, [00:28:09] Speaker 04: it is still unrevealable under Hepler versus Cheney. [00:28:12] Speaker 02: On a universality question, sometimes the government has to give something up, and I'm trying to figure out why you're not willing to give this up. [00:28:20] Speaker 02: It is the government's policy, is it not, universally not to enforce with respect to birds until you have a bird-specific regulation. [00:28:29] Speaker 02: Until we have a bird-specific regulation. [00:28:30] Speaker 02: So that is a policy. [00:28:32] Speaker 05: And that's published in the Federal Register. [00:28:34] Speaker 02: Et cetera, right? [00:28:36] Speaker 02: It satisfies the, whatever you think there is with respect to concreteness and universality, it doesn't satisfy anything with respect to temporality, correct? [00:28:45] Speaker 02: That is time. [00:28:47] Speaker 05: Are there any limits on temporality? [00:28:51] Speaker 02: Time, temporal, temporalness, you know, whatever. [00:28:53] Speaker 05: Are there any limits on how long this can go on? [00:28:56] Speaker 04: I think that there are limits. [00:28:57] Speaker 04: I think the agency has not come close to those limits. [00:28:59] Speaker 04: In this case, I again point your honor to the other page. [00:29:01] Speaker 05: Can you give me a sense of what the limits would be? [00:29:03] Speaker 05: Pardon? [00:29:03] Speaker 05: What's your sense of what the limits would be? [00:29:05] Speaker 04: I think that it would depend on the facts of the case. [00:29:07] Speaker 05: Right, so on the facts of this case. [00:29:09] Speaker 04: In the facts of this case, I can't point your honor to a specific time that would be too long. [00:29:15] Speaker 04: I think that as long as the court is satisfied that the agency is [00:29:20] Speaker 04: working on developing bird-specific regulations. [00:29:23] Speaker 04: And it is certainly within the agency's discretion not to enforce the general regulations with respect to birds. [00:29:30] Speaker 05: Is it within their discretion not to when they have another existing set of general regulations already there, already being applied to the exact same institutions? [00:29:42] Speaker 05: Is there any [00:29:44] Speaker 05: obligation to provide reason, explanation as to why those should not be a stopgap measure? [00:29:51] Speaker 05: I don't think you dispute that harms are occurring daily. [00:29:57] Speaker 04: We don't dispute the facts in the record with respect to the specific instances of harmed birds that have been identified. [00:30:03] Speaker 04: However, there are very good reasons not to apply the general animal welfare standard to birds. [00:30:09] Speaker 04: And these are actually reasons that PETA itself noted in a comment in 2004. [00:30:13] Speaker 05: What's wrong with give them water every day? [00:30:18] Speaker 05: Leave them every day? [00:30:21] Speaker 05: Clean out the enclosure? [00:30:23] Speaker 04: In addition to those types, in addition to those regulations that you've specified, the general regulations also deal with inspections, and they deal with the manner in which... It seems to me that the agency has a list of regulations here, and if it says, all right, hard A, that's great. [00:30:41] Speaker 05: Every animal is covered. [00:30:42] Speaker 05: It should get fed, watered, and a clean place to live. [00:30:46] Speaker 05: That's the Part B, which deals with whether it's fences or other aspects that are more complicated. [00:30:52] Speaker 05: That's put aside. [00:30:53] Speaker 05: But you do have a situation here where it's not just we haven't gotten around, we need time to do complicated regulations. [00:31:00] Speaker 05: You've made a specific determination not to apply to the most basic general requirements, even though you have admitted that this statute applies to those animals. [00:31:12] Speaker 05: And this has gone on for a decade. [00:31:14] Speaker 04: There are very good reasons not to apply the general animal standards to birds. [00:31:20] Speaker 04: All of them or any of them? [00:31:21] Speaker 04: Well, it is within the agency's discretion to decide that as a blanket measure it is not going to apply any of the general standards to birds because many of them, some of them, may either just be inappropriate with respect to birds, may be unclear with how they apply to birds, and may affirmatively harm birds. [00:31:37] Speaker 04: Birds are the only animals that [00:31:40] Speaker 04: that lay eggs that are subject to the animal welfare act. [00:31:44] Speaker 04: All of the other animals that are governed by the general animal standards do not lay eggs. [00:31:52] Speaker 04: And birds may crush their eggs when they are approached by strangers. [00:31:56] Speaker 04: And this is a problem with respect to [00:32:01] Speaker 04: applying the general animal standards to birds because the general animal standards call for routine inspections. [00:32:07] Speaker 04: They call for strangers to approach eggs that may be nesting, and birds may harm their eggs as a consequence. [00:32:14] Speaker 04: Also, birds are among the only animals covered under the Act that are subject to zoonotic diseases. [00:32:20] Speaker 04: That is, diseases that can be transferred from animals to humans. [00:32:23] Speaker 04: And that also raises a complication and a potential danger of applying the general animal standards to birds. [00:32:30] Speaker 05: And given these problems... So for 10 years you can't figure out that they should at least be fed, watered, and maybe even take out clean if you don't want that fed and watered? [00:32:38] Speaker 04: It is within the agency's discretion, Your Honor, to decide not to apply the general animal standards, generally as a blanket matter, as it determines what specific standards should apply, rather than trying to determine which provisions of the general standards are to apply and which wouldn't. [00:32:54] Speaker 02: This question of whether it's within the agency's discretion goes to the question of whether the agency is arbitrary and capricious in acting, correct? [00:33:02] Speaker 02: I tell you there's no arbitrary and capricious claim in this complaint. [00:33:06] Speaker 02: The nature of the plaintiff's complaint here is agency action unlawfully withheld. [00:33:12] Speaker 04: That's right. [00:33:12] Speaker 02: Is that right? [00:33:13] Speaker 02: So the question really, if we were to get to the merits, is not whether the agency is acting reasonably or not. [00:33:20] Speaker 02: The question is whether the agency is compelled by something in the statute to do a particular act, as the Supreme Court says, a discrete act, within, in this case, a particular length of time. [00:33:33] Speaker 02: Am I at least putting the issue correctly? [00:33:36] Speaker 04: I believe, Your Honor, is putting the issue correctly. [00:33:38] Speaker 04: And this case is squarely governed by the presumption that was announced in Hecler v. Cheney that agency non-enforcement decisions are presumptively immune from judicial review. [00:33:49] Speaker 04: And so the only way that a plaintiff can overcome that presumption is if they can either show a complete abdication, which PETA cannot show here. [00:33:57] Speaker 04: or if they can point to something in the statute that requires the agency to take a specific enforcement action that constrains the agency. [00:34:04] Speaker 02: Well, we've never even held that a complete abdication would be enough and neither has the Supreme Court. [00:34:10] Speaker 02: Everyone's always said that's a possible exception. [00:34:13] Speaker 02: We've never been able to find a case where there actually was an abdication. [00:34:17] Speaker 04: That's right. [00:34:17] Speaker 04: The court has never found a case where there was an abdication. [00:34:20] Speaker 04: However, I believe that in the Drake case, this court articulated a complete abdication as an exception to... Well, we've said many times that, but we've never had the holding on the subject. [00:34:33] Speaker 02: That's correct. [00:34:33] Speaker 04: The court has never since [00:34:34] Speaker 02: What would be the difference between, from your point of view, between the question of whether [00:34:50] Speaker 02: It's barred by Heckler versus Cheney because it's committed to agency discretion or assuming that it's not barred but concluding that it's not compelled by the statute and therefore there's no cause of action. [00:35:06] Speaker 02: Well, I guess they're both cause of action questions. [00:35:11] Speaker 02: What's the difference between holding that it's committed to agency discretion and holding that even if it's not committed to agency discretion there's no [00:35:20] Speaker 04: I think that there's substantial overlap in the inquiries. [00:35:26] Speaker 04: I think that the inquiry that is contemplated by HEPA versus Cheney is quite similar to the inquiry that's contemplated under the Supreme Court's case in Southern Utah Wilderness Alliance, but I think that [00:35:37] Speaker 04: Perhaps the main difference is just in the procedure. [00:35:40] Speaker 04: This is, heckler versus cheney, is a presumption of unreviewability. [00:35:44] Speaker 04: So it does not even get into the merits of the case. [00:35:47] Speaker 04: It does not get into the production. [00:35:49] Speaker 02: But it's not, we know it's not jurisdictional. [00:35:50] Speaker 02: So we can skip that if we want to and go directly to the second question. [00:35:54] Speaker 02: I'm trying to figure out what's the difference, whether we [00:35:57] Speaker 02: address it at the reviewability stage or we address it at the unlawfully withheld stage? [00:36:03] Speaker 04: I think that either option is available to the court, and I do want to point out that although PETA in its reply brief says that the government did not raise the alternative basis for affirmance below, that is simply incorrect. [00:36:16] Speaker 04: We did argue that basis for dismissal in district court, and we cited the Southern Utah case no less than eight times in our motion to dismiss, or in the alternative summary of judgment in that case. [00:36:28] Speaker 04: But if, I know that my time is up, but if I could briefly address the standing question that Judge Millett was addressing at the outset of my question. [00:36:38] Speaker 05: say how you think you can wiggle out of Action Alliance and Happy Gale Alliance? [00:36:44] Speaker 04: Sure, Your Honor. [00:36:45] Speaker 04: I'll address those pieces first. [00:36:48] Speaker 02: I assume you don't take the premise that you'd have to wiggle. [00:36:52] Speaker 04: I will try not to wiggle, Your Honor. [00:36:56] Speaker 04: So this court's test with respect to organizational standing is a two-pronged test. [00:37:01] Speaker 04: The first prong of that test requires a plaintiff organization to show a direct and cognizable injury to its mission as a result of defendant's conduct. [00:37:10] Speaker 04: and PETA cannot show such a direct and cognizable injury. [00:37:15] Speaker 04: And although it is true that Action Alliance and the Abigail Alliance case do involve allegations of harm by organizations that flow through third parties, as Judge Millett noted, those were cases where the agency was exercising [00:37:30] Speaker 04: coercive power of the third parties. [00:37:32] Speaker 04: It was altering the third party's legal rights or obligations in such a way as to prohibit them or authorize them to do the thing that the plaintiff organization in that case complained of. [00:37:46] Speaker 04: And that is not the case here. [00:37:47] Speaker 04: These are non-enforcement decisions. [00:37:49] Speaker 04: These are decisions temporarily by the agency not to exercise its enforcement discretion. [00:37:55] Speaker 04: And therefore, any choice by third parties to harm birds or to do the things that PETA complains of is an independent choice that is not traceable to the harm that PETA or to the conduct of the agency. [00:38:08] Speaker 05: But they would say, you've agreed you need to regulate birds. [00:38:12] Speaker 05: And if you regulate birds, you would [00:38:16] Speaker 05: If you were doing the regulating you're supposed to be doing, you would be outlining these very activities that are killing birds and they're having to spend the resources cleaning up the consequences of your implicit authorization that this stuff can go on as long we know they're supposed to be regulated, we're supposed to stop this kind of stuff, but we're gonna let it keep going on until we get around to writing our regulations and they're cleaning up the mess in the interim. [00:38:38] Speaker 04: I think that that is what they would argue, and I think that that is their best argument, but I nevertheless think that it is insufficient to show the kind of direct harm that is required, and it would go further. [00:38:48] Speaker 04: This court would be going further than either of the courts. [00:38:51] Speaker 05: Please help explain this to me. [00:38:52] Speaker 05: How is it less direct than the prior cases when they say we're having to spend resources educating people, countering the message, [00:39:04] Speaker 05: advocating either with you or with other organizations for the proper treatment. [00:39:08] Speaker 05: We're having to do all the work that, at least half, not all the work that you would be doing. [00:39:13] Speaker 05: And they were spending the resources. [00:39:14] Speaker 05: How is their resource expenditure less direct? [00:39:17] Speaker 04: Well, the question of resource expenditure is part of the second element of this court's organizational standing test. [00:39:24] Speaker 04: The first part of the test, however, requires the showing of direct harm. [00:39:28] Speaker 04: And in Abigail Alliance, the direct harm that was caused by FDA to the plaintiff organization [00:39:32] Speaker 04: was the FDA was prohibiting third-party drug manufacturers from releasing the drugs that the plaintiffs wanted released. [00:39:39] Speaker 04: So there is a direct prohibition of conduct that the plaintiff organization wanted to be authorized and be legal. [00:39:47] Speaker 04: So too with the Action Alliance case. [00:39:49] Speaker 04: That was sort of an informational injury case, but that was a case where the agency explicitly authorized [00:39:54] Speaker 04: thing that the plaintiff complained of, and here there's no such explicit authorization. [00:39:59] Speaker 02: I'm not sure which, I thought in Action Alliance it was the elimination of a requirement to self-evaluate. [00:40:06] Speaker 04: That's correct, Your Honor. [00:40:06] Speaker 02: Well that's not, that is taking away, not enforcing against the third party the requirement of self-evaluation. [00:40:14] Speaker 04: The harm that was complained of in Action Alliance was an informational injury. [00:40:18] Speaker 02: Yes, but nonetheless it's information from a third party. [00:40:23] Speaker 04: information from the third party. [00:40:25] Speaker 04: But in that case, the plaintiff points to a legal requirement that they claim to apply to the government to release the information that they saw. [00:40:32] Speaker 04: And as Judge Millett pointed out here, there's no such legal requirement here. [00:40:36] Speaker 04: And I think that that is an important point. [00:40:39] Speaker 04: If PETA were an individual rather than an organization, [00:40:42] Speaker 04: Both of the harms that this report found, that is the informational harm and the sort of procedural harm that PETA can't petition the government to take inspection actions, would not be cognizable injuries under this court's precedent, because both depend on the conferral of a statutory right. [00:40:58] Speaker 04: a statutory right either to information that the plaintiff is deprived of or to the procedure that the plaintiff wants to take advantage of. [00:41:06] Speaker 04: And it cannot be that PETA can establish an article-free entry just by virtue of the fact that it happens to be an organization. [00:41:13] Speaker 05: Why is an action alliance quite similar though in the sense that you have a backdrop of regulations that creates information just like the general regulations that HHS had there? [00:41:24] Speaker 05: And then via your NPRM, you have yanked back the ability to have that type of information. [00:41:31] Speaker 05: You cut it off, you've damped it off as to, or it's just not going to exist by virtue of what you said in the NPRM, those things aren't going to apply to them. [00:41:40] Speaker 05: And so I understand it wasn't already flowing and stopped, but as soon as you said, these birds are covered by the statutory scheme, they could argue, and they're entitled to that flow, and then you said, uh-uh, no, we're cutting it off. [00:41:52] Speaker 04: But they are not entitled to that flow, and that's the key distinction factor between this case and actual life. [00:41:58] Speaker 04: In Actual Alliance, there were these regulations. [00:41:59] Speaker 05: Is there a statutory right or regulatory right to information in Actual Alliance? [00:42:04] Speaker 04: In Actual Alliance, I believe it was a regulatory right, but it nevertheless was a regulatory right, and there is no such regulatory right here. [00:42:10] Speaker 04: There's no regulatory obligation imposed on the agency to publish inspection reports. [00:42:14] Speaker 05: How is the regulatory right articulated in Actual Alliance? [00:42:17] Speaker 05: Was it that you have an obligation to make these reports and make them publicly available? [00:42:23] Speaker 04: Your Honor, I'm not familiar enough with the details of that case. [00:42:28] Speaker 04: However, I think that it was uncontested in that case that such a regulatory obligation existed, or at least that was the claim to harm that the plaintiffs alleged. [00:42:36] Speaker 04: And they said that if you were doing what you should be doing, we would, as a direct result, get the information that we wanted. [00:42:42] Speaker 04: And that was the injury that was found there. [00:42:43] Speaker 04: And there's no comparable allegation here. [00:42:45] Speaker 05: Do your general regulations require institutions to file information that would be available to them, or is it simply information you would create if you were enforcing the Act that they want? [00:42:56] Speaker 04: It is information that we would create. [00:42:57] Speaker 04: There's no obligation on the agency to publish its inspection reports. [00:43:04] Speaker 05: The entities file information with you for those inspection reports? [00:43:09] Speaker 04: They are made available online as a matter of... The entities reports are made online? [00:43:16] Speaker 05: Entities provide information to you, I assume, as part of the inspection process. [00:43:22] Speaker 05: I assume, maybe I'm wrong, and then you have your own inspection reports. [00:43:25] Speaker 05: Is it both of those that are publicly available, or is it only your actions? [00:43:28] Speaker 04: I want to be clear that there are two things at issue here. [00:43:30] Speaker 04: One is whether the ultimate inspection report [00:43:33] Speaker 04: is required to be published online or what the source of that is. [00:43:38] Speaker 04: And the ultimate inspection report that the agency produces, there's no requirement anywhere in the regulations to do so. [00:43:45] Speaker 04: However, there is a different provision of the regulations, not the statute, but the regulations that requires [00:43:53] Speaker 04: to publish a list of just licensed facilities. [00:43:56] Speaker 04: But that is not the harm that the District Court found here. [00:43:59] Speaker 04: It's not the harm that PETA complained of here. [00:44:02] Speaker 04: PETA complained of was they were deprived of the actual ultimate inspection reports. [00:44:08] Speaker 04: And so if even if [00:44:11] Speaker 04: this court agrees that there is some kind of licensing obligation, that in a sense wouldn't even redress the harm that PETA alleged because all of the harm that PETA alleged deals with these inspection reports and their ability to petition the agency to conduct inspections does not deal with a predicate of licensure. [00:44:28] Speaker 02: Why does it matter whether the agency is compelled to disclose the inspection reports or not? [00:44:36] Speaker 02: They do disclose them now with respect to non-berbs, don't they? [00:44:41] Speaker 04: That's correct. [00:44:42] Speaker 02: So why should it make any difference? [00:44:44] Speaker 04: Well, it makes a difference under this court's precedent than under the Supreme Court's precedent. [00:44:47] Speaker 02: Well, have we ever held that that is the distinction in these associational standing cases? [00:44:53] Speaker 04: In an organizational standing case in Feld, Your Honor, the court first looked to the alleged informational injury and then turned to what the court called a Havens type injury. [00:45:04] Speaker 04: And in first looking at the informational injury, or at the informational injury, the court said that the way that a plaintiff can establish an informational injury is by alleging a statutory entitlement to the information that they were deprived of. [00:45:16] Speaker 04: And that mirrors the Supreme Court's language in the Akins case. [00:45:19] Speaker 04: where they found that the plaintiff in Akins was harmed, but only because the statute had issued there the federal election and campaign act that entitled the plaintiff to the information that they complained of. [00:45:31] Speaker 04: And there's no such statutory entitlement. [00:45:32] Speaker 05: Does the statute even require, I know it requires inspections, does it require reports? [00:45:36] Speaker 04: No. [00:45:39] Speaker 04: There are no further questions. [00:45:40] Speaker 04: We ask that you either affirm or in the alternative vacate and remand the instructions to dismiss the standing. [00:45:53] Speaker 03: I'd like to bring this back to the procedural posture of this case for a moment. [00:45:57] Speaker 02: Before you do that, could you go a little further on the standing? [00:46:00] Speaker 02: Besides the informational injury, what is your other injury, havens-like injury? [00:46:07] Speaker 03: The other injury is that as a matter of policy, the USDA investigates complaints that is made to them and makes inspection reports available in response to those complaints. [00:46:19] Speaker 03: But for the policy not to regulate birds, the agency would follow up on those complaints [00:46:26] Speaker 03: address bird cruelty directly by citing the violators, demanding remedial actions. [00:46:32] Speaker 03: So PETA is also injured in the fact, its mission is injured in the sense that it cannot go through the normal policy of submitting complaints and then it must spend resources to try to find alternative means which are often inadequate, including... But you supposed to demonstrate a direct conflict between them and you. [00:46:48] Speaker 05: So in the [00:46:50] Speaker 05: it was a group that said the way elephants are treated is bad and the circus folks saying it's perfectly fine, which is simply disagreeing. [00:47:02] Speaker 05: Aquacorheads I think was the word on the issue. [00:47:05] Speaker 05: And in Havens it was [00:47:08] Speaker 05: equal access to housing, discriminatory behavior and disclosure of information about housing that's available at loggerheads. [00:47:20] Speaker 05: How are you at loggerheads? [00:47:23] Speaker 05: It's not that they're saying it's fine to mistreat animals. [00:47:26] Speaker 05: In fact, they said they're covered and we need to regulate them. [00:47:29] Speaker 05: We just don't have it yet. [00:47:32] Speaker 05: How is that, and in the meantime, you have to sort of, your argument, I take it, is, well, then we sort of have to fill in the gap. [00:47:38] Speaker 05: How is that a direct type of conflict or issue in Havens or Felder or any other precedent? [00:47:44] Speaker 03: Sure. [00:47:44] Speaker 03: Well, the question of whether the government is causing the injury to PETA is an issue of causation. [00:47:50] Speaker 03: It appears that the government's trying to read in a [00:47:53] Speaker 03: second sub-causation prong into the injury prong, but the causation issue is settled firmly by this court's unblocked decision in the LDF versus Glickman. [00:48:02] Speaker 03: There, the plaintiff said these roadside zoos should have [00:48:08] Speaker 03: Sorry, the AWA should require better protection and enrichment for the chimpanzees at these roadside zoos or at these primates at these roadside zoos. [00:48:18] Speaker 03: And if the USDA interpreted the statute in the way that I alleged that they should apply the statute, that would ameliorate the problem by these third parties. [00:48:28] Speaker 05: Haven't they authorized the conduct there? [00:48:30] Speaker 03: Excuse me? [00:48:31] Speaker 05: Have they just not done anything, or have they authorized the conduct that was at issue? [00:48:34] Speaker 03: Well, it depends on how you characterize it. [00:48:36] Speaker 05: How did the opinion characterize it? [00:48:39] Speaker 03: They had promulgated the allegations, which is what the court was looking at in the Nalembank opinion, looked at the question of [00:48:51] Speaker 03: whether the allegation was that the statute, if enforced the proper way, in the way that the plaintiff alleged. [00:48:58] Speaker 05: The way the government had done there that was wrong. [00:49:00] Speaker 05: Just not regulate at all or authorized something to happen that was harmful to animals. [00:49:06] Speaker 03: In adequate regulations as to what the statute required. [00:49:08] Speaker 03: So it could be sort of half a one or half a dozen. [00:49:10] Speaker 05: They issued regulations. [00:49:11] Speaker 05: They said, here's our regulations. [00:49:13] Speaker 05: We think this is enough. [00:49:14] Speaker 05: And in your view, they were inadequate. [00:49:16] Speaker 03: That's right. [00:49:16] Speaker 03: And here we have it. [00:49:17] Speaker 05: So they have it authorized. [00:49:19] Speaker 05: In saying they think this is enough, that's authorizing the behavior. [00:49:22] Speaker 03: Well, here they're saying we think nothing is enough. [00:49:24] Speaker 05: No, I don't think they've said that at all. [00:49:25] Speaker 05: That's the problem. [00:49:26] Speaker 05: We don't have the loggerheads. [00:49:27] Speaker 05: They haven't said nothing is enough. [00:49:29] Speaker 05: They said we need regulations. [00:49:31] Speaker 05: We just haven't gotten there yet. [00:49:33] Speaker 05: We don't have them yet. [00:49:35] Speaker 05: And you've abandoned that challenge. [00:49:38] Speaker 03: We've abandoned the challenge to the specific standards because nothing on the statute requires specific standards. [00:49:41] Speaker 05: No, you've abandoned the challenge. [00:49:43] Speaker 05: I thought you said you'd abandoned the challenge as to the failure to promulgate the regulations that they promised were coming. [00:49:50] Speaker 03: Well, the statute requires standards generally. [00:49:54] Speaker 03: The agency has a discretion to have specific standards as to some animals, and they do have specific standards as to cats, non-human primates, marine mammals, but the statute requires standards. [00:50:06] Speaker 03: Standards exist for everyone, for all the animals who do not have specific standards, the general standards apply. [00:50:11] Speaker 05: Is it your view that it's Chevron step one or two on the bird coverage? [00:50:16] Speaker 03: For one, this court in Cook said that it's unclear whether this circuit applies to Chevron in the non-enforcement context. [00:50:22] Speaker 05: But I think, no, I think... I'm just asking us this interpretive question of how words are covered. [00:50:28] Speaker 03: Sure. [00:50:28] Speaker 03: I think it's a several step one question. [00:50:30] Speaker 03: The statute says, apply licenses. [00:50:33] Speaker 03: With those licenses, make sure that before you apply the license, before you grant the licenses, ensure that the licensee is [00:50:41] Speaker 03: in compliance with the 2143 standards. [00:50:45] Speaker 03: The 2143 standards exist and they have existed for decades. [00:50:49] Speaker 03: They have existed since the act applied to all warm blooded animals in 1970 when births first should have been given these protections 45 years ago. [00:50:57] Speaker 03: But instead, the agency first says, for 30-some odd years, we don't believe birds are warm-blooded. [00:51:03] Speaker 03: And then they said, you know, we're just not going to apply the general standards to birds while we sit in our hands and deal with these bird specific standards, which, since 2013, haven't even made any sort of regulatory pronouncements. [00:51:16] Speaker 03: There's no timetables. [00:51:17] Speaker 03: Again, these are proposed regulations. [00:51:19] Speaker 03: They could still, once proposed, take years to be final. [00:51:25] Speaker 03: If I could make a quick point, Your Honor, about the procedural posture of this case. [00:51:30] Speaker 03: The government here was arguing about the record in this case and what it reflects, said that whether the delay is unreasonable would depend on the facts of the case. [00:51:37] Speaker 03: There is no record in this case, Your Honors. [00:51:39] Speaker 03: We have not gotten out of the gate. [00:51:41] Speaker 03: We have not provided the opportunity to have the administrative record to show that the delay [00:51:46] Speaker 03: is unreasonable. [00:51:47] Speaker 03: But if on remand the government on summary judgment wants to say that the delay is reasonable for these variety of reasons based on the record, we're happy to have that argument. [00:52:02] Speaker 03: A couple points about Aaron, the Association of Irritated Residents and the Cutler case. [00:52:07] Speaker 03: The Cutler case came to this court on a motion for summary judgment. [00:52:10] Speaker 03: There was an administrative record. [00:52:12] Speaker 03: They were able to show what happened. [00:52:13] Speaker 03: Eric came to this court on a petition for review of final agency action where there was also [00:52:17] Speaker 03: already an administrative record produced. [00:52:20] Speaker 03: But the question of both AIR and Cutler was whether the statute applied at all. [00:52:25] Speaker 03: In AIR it was certain environmental statutes that were triggered by the level of admissions and the agency didn't know how to measure emissions from animal feeding operations. [00:52:35] Speaker 03: So they entered into non-prosecution agreements with the feeding operations that said [00:52:39] Speaker 03: pay a small civil penalty, so there was some enforcement, pay a small civil penalty, allow us access to your facilities, and help us fund the study to figure out how we can measure these admissions. [00:52:49] Speaker 03: And this court said, while you figure out whether the statute applies, [00:52:54] Speaker 03: that you can sort of take as much time to make that predicate determination. [00:52:59] Speaker 03: Same with color. [00:53:00] Speaker 03: The question was whether the drugs were safe and effective, and the FDA was taking its time to figure out whether or not certain over-the-counter drugs were safe and effective. [00:53:08] Speaker 03: It came on a motion for summary judgment after the record had been produced. [00:53:13] Speaker 03: Here, the agency knows what a bird is. [00:53:15] Speaker 03: It knows that the statute applies. [00:53:18] Speaker 03: There's no question about the scope of the statute or to what extent the regulated entity here, birds, should be provided protection. [00:53:29] Speaker 03: These animals have waited 45 years for protections, Your Honor. [00:53:32] Speaker 03: I ask that the Court reverse and remand. [00:53:35] Speaker 03: I've got a question. [00:53:36] Speaker 03: We have a question. [00:53:37] Speaker 01: This is not on this case, but [00:53:39] Speaker 01: I know your organization has a broad portfolio, but I was listening recently to a man describe his childhood in which his father took them every summer to Mexico, captured hundreds of cockatoos, brought them back in burlap bags and sold them and so forth. [00:54:02] Speaker 01: Is that still a problem? [00:54:03] Speaker 01: I'm just thinking about the increased border security. [00:54:06] Speaker 01: I suppose now people could take the birds from further down in Central America. [00:54:14] Speaker 01: Watch that at all? [00:54:16] Speaker 03: Your Honor, when it comes to sort of important export of exotic and wild animals, PETA is heavily involved. [00:54:23] Speaker 03: As to the question of, is the problem of the birds being smuggled in from Mexico and South America still an issue, I honestly don't have an answer for you. [00:54:31] Speaker 01: Thank you. [00:54:32] Speaker 02: We'll take the matter under submission. [00:54:33] Speaker 02: Thank you. [00:54:40] Speaker 02: Give us a brief adjournment. [00:54:41] Speaker 02: Let me give us an adjournment.