Animal Legal Defense Fund, Inc. v. Vilsack

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANIMAL LEGAL DEFENSE FUND, INC.,
Plaintiff,
Case No. 16-cv-00914 (CRC)
v.
THOMAS J. VILSACK, et al.,
Defendants.
MEMORANDUM OPINION
The United States Department of Agriculture (“USDA”) is in the midst of an
administrative enforcement action against a family-owned zoo in Iowa for alleged violations of
the Animal Welfare Act. The Animal Legal Defense Fund (“ALDF”), which has long criticized
the zoo’s care and handling of its animals, sought to intervene in that proceeding but was
prevented from doing so by the presiding administrative law judge. After the agency Judicial
Officer upheld the ALJ’s decision on the grounds that the ALDF’s stated interests were beyond
the scope of the proceeding, ALDF challenged the Judicial Officer’s ruling in this Court. It
principally contends that the Judicial Officer’s decision was contrary to Section 555(b) of the
Administrative Procedure Act (“APA”), which allows “interested persons” to participate in
agency proceedings “so far as the orderly conduct of public business permits.” Both sides now
move for summary judgment.
The Court finds that ALDF’s demonstrated interest in the welfare of the zoo’s animals
falls squarely within the scope of the USDA enforcement proceeding. The Judicial Officer’s
finding to the contrary was therefore arbitrary and capricious under the APA. Because the
Judicial Officer did not address whether ALDF’s participation would otherwise impede “the
orderly conduct of public business,” there is no basis in the record to uphold the denial of its
motion to intervene under APA Section 555(b). The Court will, accordingly, grant ALDF’s
motion, vacate the Judicial Officer’s ruling, and remand the case to the agency for a more
thorough consideration of ALDF’s motion in light of factors relevant to third-party participation
in agency proceedings under Section 555(b).
I. Background
The Animal Welfare Act of 1966 (“AWA”), 7 U.S.C. § 2131 et seq., establishes
minimum standards for the humane care and treatment of animals that are exhibited to the public.
The USDA, through the Animal and Plant Inspection Service (“APHIS”), licenses animal
exhibitors under the AWA and enforces compliance with the Act’s care and treatment standards.
A.R. 4.
The Cricket Hollow Zoo is a family-owned menagerie in Manchester, Iowa. The zoo has
custody of some 200 animals, including lions, tigers, and bears. A.R. 74. Since obtaining its
exhibitor license from APHIS in 1994, the zoo has had a checkered history of compliance with
the AWA. In 2004, APHIS issued an “Official Warning” to the zoo for failing to maintain
adequate shelter and wholesome food supplies for its animals. Id. at 81. The zoo subsequently
paid two separate monetary penalties to settle alleged AWA violations stemming from periodic
APHIS inspections. A.R. 5.
In 2014, ALDF brought separate lawsuits against Cricket Hollow and USDA. The
former alleged that the zoo had violated the Endangered Species Act’s prohibition on the
“taking” of protected animals. See Compl., Kuehl v. Sellner, 14-cv-2034 (N.D. Iowa June 11,
2014). The suit against USDA challenged AHPIS’s continued renewal of Cricket Hollow’s
exhibitor license in light of the zoo’s habitual non-compliance with the AWA. See Compl.,
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ALDF v. Vilsack, 14-cv-1462 (D.D.C. Aug. 25, 2014). A fellow judge of this Court ultimately
resolved that suit in USDA’s favor, holding that the agency lawfully adopted and applied a
license renewal scheme that does not condition renewal on an exhibitor’s compliance with the
AWA’s animal welfare standards. See ALDF v. Vilsack, 169 F. Supp. 3d 6, 8 (D.D.C. 2016).1
While ALDF’s suit against the Department was pending, APHIS initiated the present
enforcement action against the zoo. APHIS re-alleged many of the same violations it had
previously cited, and further accused the zoo of willfully violating AWA provisions and
associated regulations pertaining to veterinary care. A.R. 5. ALDF sought to participate in the
enforcement action by offering to provide APHIS attorneys with evidence generated from
discovery in ALDF’s Endangered Species Act litigation against the zoo. A.R. 121–22. APHIS
declined the offer, contending that it was inappropriate given ALDF’s pending lawsuit against
APHIS over its renewal of Cricket Hollow’s license.
Thus rebuffed, ALDF filed a motion to intervene in the enforcement proceeding.
A.R. 50. ALDF based its motion on Section 555(b) of the APA, which allows “interested
persons” to participate in agency proceedings “so far as the orderly conduct of public business
permits.” 5 U.S.C. § 555(b). The presiding administrative law judge denied the motion. A.R.
126–27. In a brief opinion, the ALJ noted that the authority to find violations of the AWA and
impose appropriate penalties “rests solely with the Secretary [of Agriculture].” Id. at 126.
Intervention by ALDF, the ALJ continued, “would interfere with that authority.” Id.
ALDF appealed the ALJ’s ruling to USDA’s Judicial Officer. In addition to arguing that
the ALJ erred in denying intervention under Section 555(b) of the APA, ALDF also maintained
that it was entitled to intervene under APA Section 554(c)—which permits “interested parties” to
1
That ruling is currently on appeal to the D.C. Circuit.
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intervene in formal agency adjudications—and under USDA’s Rules of Practice Governing
Formal Adjudicative Proceedings (“Rules of Practice”). A.R. 132.
The Judicial Officer denied ALDF’s administrative appeal. With respect to intervention
under Section 555(b), he ruled that, even assuming ALDF was an “interested person,” its
appearance in the proceeding would disrupt “the orderly conduct of public business.” A.R. 216.
Echoing the reasoning of the ALJ, the Judicial Officer explained that the purpose of the
enforcement proceeding was solely to determine whether the zoo violated the AWA and, if so,
what the proper sanction should be. Id. ALDF’s “stated interests,” in his view, were “beyond
the scope of this proceeding.” Id. Moving to intervention under APA § 554(c), the Judicial
Officer found that because ALDF was not “entitled as a matter of right to be admitted as a party”
to the proceeding, it had not met the APA’s definition of “party,” see APA § 551(3), and
therefore was not an “interested party” as required for the intervention under Section 554(c). Id.
at 215. Finally, the Judicial Officer concluded that USDA’s Rules of Practice “do not explicitly
provide for intervention by third parties, and the Judicial Officer has long held that [they] do not
provide for intervention by third parties.” Id. at 217. ALDF then filed suit in this Court
challenging the Judicial Officer’s rulings, and both sides now move for summary judgment.
II. Legal Standards
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is material if it is capable of affecting the outcome of litigation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the non-moving party. Id.
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Summary judgment is the proper stage for determining whether, as a matter of law, an
agency action is supported by the administrative record and is consistent with the APA.
Richards v. INS, 554 F.2d 1173, 1777 (D.C. Cir. 1977). The APA provides that “[t]he reviewing
court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law . . . .” 5
U.S.C. § 706(2)(A). Arbitrary and capricious review is “narrow.” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The Court is not to “substitute its judgment for
that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). Rather, the Court must determine whether the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Id. But even if the agency did not
fully explain its decision, the Court may uphold it “if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285–86
(1974). The Court’s review is limited to the administrative record, Holy Land Found. For Relief
and Dev. V. Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003), and the party challenging an agency’s
action bears the burden of proof, City of Olmstead Falls v. Fed. Aviation Admin., 292 F.3d 261,
271 (D.C. Cir. 2002).
III. Discussion
ALDF’s summary judgment motion challenges the Judicial Officer’s decision as arbitrary
and capricious and contrary to law under Section 706(2) of the APA. The organization advances
three primary arguments in support of its motion: First, ALDF maintains that it is an “interested
person” under APA § 555(b), and that the Judicial Officer erred in finding that its participation
under § 555(b) would disrupt the orderly conduct of public business. Second, it argues that the
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Judicial Officer incorrectly applied the APA’s definition of “party” in concluding that ALDF
could not intervene as an “interested party” under APA § 554(c). Finally, it asserts that the
Judicial Officer’s observation that it “has long held that [USDA’s] Rules of Practice do not
provide for intervention by third parties” amounted to an impermissible “categorical ban on third
party participation” in USDA proceedings. Pl.’s Mem. Supp. Mot. Summ. J. (“MSJ”) 4.
A. Section 555(b)
Section 555(b) of the APA is the provision most frequently invoked by third parties
seeking to participate in agency proceedings. See Jeffrey D. Litwack, A Guide to Federal
Agency Adjudication 73 (2d ed. 2012). It provides that “[s]o far as the orderly conduct of public
business permits, an interested person may appear before an agency or its responsible employees
for the presentation, adjustment, or determination of an issue, request, or controversy in a
proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency
function.” 5 U.S.C. § 555(b) (emphasis added). Section 555(b) applies to “all forms of agency
action.” Friends of the Bow v. Thompson, 124 F.3d 1210, 1220 (10th Cir. 1997); see also Block
v. SEC, 50 F.3d 1078, 1085 (D.C. Cir. 1995) (“[Section] 555(b) is universally understood to
establish the right of an interested person to participate in an on-going agency proceeding.”).
The APA does not define the term “interested person.” The D.C. Circuit has held that an
individual or organization with standing to seek judicial review of an agency’s decision “clearly
qualifies as an ‘interested person’ who normally may intervene in the administrative
proceeding.” Nichols v. Bd. of Trustees of Asbestos Workers Local 24 Pension Plan, 835 F.2d
881, 896 (D.C. Cir. 1987). But Article III standing is not required. “Federal agencies may, and
sometimes do, permit persons to intervene in administrative proceedings even though these
persons would not have standing to challenge the agency’s final action in federal court.”
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Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 74 (D.C. Cir. 1999); see
also id. (“Agencies, of course, are not constrained by Article III of the Constitution; nor are they
governed by judicially-created standing doctrines restricting access to federal courts. The criteria
for establishing ‘administrative standing’ therefore may permissibly be less demanding than the
criteria for ‘judicial standing.’”) (citations omitted).
A lower threshold for participation under § 555(b) comports with “the important role
played by citizens[’] groups in ensuring compliance with the statutory mandate that [agency
proceedings] serve the public interest.” Bilingual Bicultural Coalition on Mass Media, Inc. v.
FCC, 595 F.2d 621, 624 n.4 (D.C. Cir. 1978). Indeed, the D.C. Circuit has recognized that
intervenors representing the public interest “must not be treated as interlopers.” Id. (quoting
Office of Communication of the United Church of Christ v. FCC, 425 F.2d 543, 546 (D.C. Cir.
1969)). Because nearly every agency decision—including those made by the agency in
individual adjudications—implicates public policy, broad participation in agency proceedings,
and thus a more expansive interpretation of “interested person” in § 555(b), is often necessary.
See Charles H. Koch Jr., Administrative Law and Practice § 5.20 (3d ed. 2010).
The Judicial Officer assumed that ALDF was an “interested person” for purposes of his
decision, but did not make that finding explicitly. A.R. 216. ALDF refers to itself as “a national
non-profit organization dedicated to protecting animals, including animals exhibited by zoos and
menageries.” A.R. 50 (“ALDF Mot. Intervene”). The organization further contends that it “has
a longstanding interest in the problem of captive animal mistreatment at roadside zoos, generally,
and specifically at Cricket Hollow Zoo.” Id. at 55. ALDF also represents that it “has spent
extensive time, money, and other resources” on lawsuits against the Cricket Hollow Zoo and the
USDA. Id. at 55; Compl., ALDF v. Vilsack, 14-cv-1462 (D.D.C Aug. 25, 2014) (alleging that
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USDA’s renewal of the zoo’s license violated the AWA); Compl., Kuehl v. Sellner, 14-cv-2034
(N.D. Iowa June 11, 2016) (alleging that the zoo’s treatment of animals violated the Endangered
Species Act). Based on these uncontested representations, the Court easily finds that ALDF
qualifies as an “interested person” under § 555(b).
But as the preamble to § 555(b) suggests, agencies have broad discretion to limit the
participation of interested individuals and organizations in agency proceedings. Even if ALDF
qualifies as an “interested person,” it “had a right to intervene only if [its] participation in the
administrative process dovetailed with the ‘orderly conduct of public business.’” Nichols, 835
F.2d at 897 (quoting 5 U.S.C. § 555(b)). Courts have interpreted this qualifying language as
“accord[ing] agencies broad discretion in fashioning rules to govern public participation.” Id.
Indeed, many agencies have adopted rules governing third-party intervention. See, e.g., 49
C.F.R. § 1113.7 (Surface Transportation Board rule providing that “[l]eave to intervene will be
granted only when the [would-be intervenor] addresses issues reasonably pertinent to the issues
already presented and which do not unduly broaden them”). USDA, however, appears not to
have promulgated any such rules, and as the Judicial Officer noted, its Rules of Practice are
silent on intervention governing formal adjudications. A.R. 217. Thus, ALDF’s right to
participate here is governed by § 555(b) itself and cases interpreting it, rather than by agency
regulations or guidance.
When considering requests to intervene under § 555(b), courts “have for the most part
permitted denials [of intervention] . . . when, for example, other parties to the proceeding
adequately represent the would-be intervenor’s viewpoint or intervention would broaden unduly
the issues considered, obstruct or overburden the proceedings, or fail to assist the agency’s
decisionmaking.” Nichols, 835 F.3d at 897. The D.C. Circuit has cautioned, however, that “[a]s
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a general rule . . . courts will not rubberstamp a challenged denial based merely upon an assertion
of justification, especially if the agency contends simply that intervention would prove
impermissibly dilatory or burdensome.” Id. The agency must refrain from employing its
discretion “in an unreasonably overbroad or otherwise arbitrary manner.” Id.
Again, the Judicial Officer found that ALDF’s participation in the Cricket Hollow
proceeding would “disrupt the orderly conduct of public business.” A.R. 216. The sole reason
offered for that conclusion was that “[ALDF]’s stated interests . . . are beyond the scope of [the]
proceeding.” Id. That a third-party’s interests exceed the scope of the relevant proceeding is a
valid ground for denying intervention. See Nichols, 835 F.2d at 897. The question here,
however, is whether the Judicial Officer’s finding in that regard is supported by the record that
was before him. The Judicial Officer did not identify what ALDF’s “stated interests” were in the
Cricket Hollow enforcement action. But ALDF’s Motion to Intervene revealed at least three.
First, ALDF sought to intervene to compel the agency to rescind the zoo’s exhibitor
license due to its repeated violations of the AWA’s animal welfare standards. A.R. 51–53
(“Mot. Intervene”). As noted above, however, USDA maintained the position that its regulatory
scheme for renewing licenses, which does not require a zoo to comply with the AWA, was
permissible under the AWA—a view that has since been vindicated by a federal court. ALDF v.
Vilsack, 169 F. Supp. 3d 6, 17 (D.D.C. 2016). The administrative renewal of the zoo’s license
was thus indeed beyond the scope of the enforcement proceeding.
But ALDF also identified two other interests in the proceeding, namely a general interest
in animal welfare and a specific interest in the health and treatment of the animals at the Cricket
Hollow Zoo. A.R. 55 (“Mot. Intervene”). These combined interests, which the agency does not
dispute, appear to be squarely implicated by the enforcement proceeding. They would be
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impaired if APHIS failed to prove the alleged violations or negotiated a settlement that did not
provide for the adequate care of the zoo’s animals, or if the ALJ imposed a penalty that did not
sufficiently sanction the zoo’s conduct. The Judicial Officer’s failure to identify, let alone
consider, this rather obvious alignment of interests was arbitrary and capricious.
Having found that ALDF’s interests were beyond the scope of the proceeding, the
Judicial Officer had no occasion to analyze whether the organization’s participation would
otherwise impede “the orderly course of public business.” As discussed above, courts and
commentators have identified a range of factors that agencies typically consider in making that
determination, including: the nature of the contested issues; the prospective intervenor’s precise
interest; the adequacy of representation provided by the existing parties to the proceeding; the
ability of the prospective intervenor to present relevant evidence and argument; the burden that
intervention would place on the proceedings; and the effect of intervention on the agency’s
mandate. See Nichols, 835 F.2d at 897; Koch, supra, at § 5.20.
Several of these considerations appear relevant here. As an individualized enforcement
action against a single respondent, the nature of the proceeding is more targeted in nature than,
say, a formal rulemaking or licensing proceeding that affects a wide range of consumers and
competitors. As the ALJ noted, the purpose of such proceedings is simply to determine whether
the respondent violated the law and, if so, what remedy should follow. The usefulness of
appearances by third parties to weigh in on the broader economic or policy implications of the
agency’s action is limited. Yet, there may be occasions where a third party can offer relevant
evidence as to liability or expertise with respect to appropriate remedies, as ALDF claims is the
case here.
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Relatedly, agencies themselves are usually best equipped to enforce their own
regulations. When that is so, it may be that the agency can adequately represent the interests of
would-be intervenors. The Government devotes considerable attention in its briefs before this
Court trying to debunk ALDF’s contention that APHIS has failed to vigorously enforce the
AWA’s animal care standards against the zoo in the past and, therefore, cannot be trusted to do
so in the present enforcement proceeding. The Government may be correct. But the ALJ or
Judicial Officer should consider that issue in the first instance.
Finally, the agency should consider the extent to which ALDF’s participation would
assist its decision making. ALDF contends, for example, that it has helpful evidence concerning
the nature of the zoo’s handling of animals, which agency lawyers rejected, and can provide
useful input on fashioning an appropriate remedy for any violations found. ALDF’s input might
well be original and beneficial. On the other hand, it might be entirely duplicative of the
agency’s existing evidence and remedial capabilities. But it is not a priori “irrelevant” as the
ALJ found in denying ALDF’s motion to intervene. A.R. 126–27.
It bears repeating that participation in agency proceedings under Section 555(b) does not
necessarily entail full-fledged party intervention. Rather, agencies have ample “authority to
shape the manner in which intervenors will participate.” Nichols, 835 F.2d at 897 n.115. Should
the agency here find that some degree of participation by ALDF would be consistent with the
“orderly conduct of public business,” it may reasonably limit and direct the manner of that
participation in consideration of all relevant factors.
Accordingly, the Court will vacate the Judicial Officer’s ruling and remand the case to
the agency for consideration of ALDF’s motion in light of factors relevant to participation under
APA § 555(b).
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B. APA Section 554(c)
APA Section 554(c), which applies only to formal adjudications, provides:
The agency shall give all interested parties opportunity for—the submission and
consideration of facts, arguments, offers of settlement, or proposals of adjustment
when time, the nature of the proceeding, and the public interest permit; and to the
extent that the parties are unable so to determine a controversy by consent, hearing
and decision on notice and in accordance with sections 556 and 557 of this title.
5 U.S.C. § 554(c). ALDF contends in its summary judgment motion that the Judicial Officer
erred in finding that it did not qualify as an “interested party” entitled to intervene under APA §
554(c). Pl.’s MSJ 25–26. Even though APHIS enforcement proceedings have all the hallmarks
of formal adjudication, the government takes the position in its cross-motion for summary
judgment that Section 554(c) does not apply to enforcement proceedings under the AWA
because the statute does not require USDA to conduct formal adjudications. Def.’s CMSJ 16–
17.2 Accepting that proposition in its Reply brief, ALDF invites the Court to “decide the
intervention issue solely on the basis of section 555(b) and whether ALDF sufficiently qualifies
as an ‘interested person.’” Pl.’s Reply 13. Accordingly, the Court need not consider the Judicial
Officer’s determination that ALDF is not an “interested party” under Section 554(c).
C. The Judicial Officer’s Interpretation of the USDA Rules of Practice
Finally, ALDF challenges the Judicial Officer’s determination that ALDF could not
intervene under the USDA Rules of Practice. See Pl.’s MSJ 30. ALDF argues that the Judicial
Officer’s finding constitutes an unlawful blanket prohibition on third-party participation in
USDA proceedings, in violation of sections 554(c) and 555(b). Courts have indeed interpreted
these provisions to prevent an agency from imposing a “flat ban” on third-party participation in
agency proceedings. See Nichols, 835 F.2d at 898. But the Judicial Officer’s interpretation of
2
The Court takes no position on this issue, the resolution of which is not self-evident.
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the Rules of Practice does no such thing. As USDA observes, the Judicial Officer only
addressed the Rules of Practice because ALDF had argued that they provide a separate basis for
intervention, in addition to sections 554(c) and 555(b) of the APA. A.R. 148–49. The Judicial
Officer disagreed, noting that “while the Rules of Practice do not explicitly foreclose
intervention, [they] do not explicitly provide for intervention by third parties, and the Judicial
Officer has long held that [they] do not provide for intervention by third parties.” A.R. 217.
Facially, at least, this statement is not an outright ban because it was directed to ALDF’s
alternative argument that intervention was permitted under the Rules. In other words, even if the
Rules of Practice do not allow for third-party intervention, a third party can still participate under
sections 554(c) and 555(b) so long as the would-be intervenor meets the requirements of those
provisions. In this case, the Judicial Officer appears to have considered each ground for relief
separately. See A.R. 218 (“[T]he Administrative Procedure Act does not require that the Chief
ALJ allow the Animal Legal Defense Fund to intervene in this proceeding and neither the
Animal Welfare Act nor the Rules of Practice provide for intervention.”). Thus, the Court
construes the Judicial Officer’s opinion not as a flat ban on third-party participation, but rather as
an application of the relevant statutory standards to this specific case. The Court therefore holds
that this finding was not arbitrary, capricious, or contrary to law.
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IV. Conclusion
For the foregoing reasons, the Court will grant ALDF’s Motion for Summary Judgment
and deny USDA’s Cross-Motion for Summary Judgment. The Court hereby vacates the Judicial
Officer’s decision, and remands the case back to USDA for further consideration of ALDF’s
Motion to Intervene consistent with this opinion.
________________________
CHRISTOPHER R. COOPER
United States District Judge
February 15, 2017
Date: ______________________
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