United States Court of Appeals, District of Columbia Circuit
April 4, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-01462)
Stefanie Wilson argued the cause and filed the briefs for
appellants. Katherine A. Meyer entered an appearance.
Delcianna J. Winders was on the brief for amicus curiae
Delcianna J. Winders in support of plaintiffs-appellants.
E. Frostic was on the brief for amici curiae The Humane
Society of the United States and The Fund for Animals in
support of plaintiffs-appellants.
S. Simon, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief was R. Craig Lawrence,
Assistant U.S. Attorney.
Before: Garland, Chief Judge, Griffith, Circuit Judge, and
Edwards, Senior Circuit Judge.
EDWARDS, SENIOR CIRCUIT JUDGE.
Animal Welfare Act ("AWA" or "Act")
charges the United States Department of Agriculture
("USDA") with administering a licensing scheme for
animal exhibitors, including zoos. 7 U.S.C. § 2133
(2012). The Act directs the Secretary of Agriculture
("Secretary") to promulgate regulations governing
minimum animal housing and care standards, id.
§ 2143, and also to issue licenses to entities and
individuals seeking to engage in exhibition activities,
id. § 2133. Although the Act leaves many
regulatory details to the agency's discretion, it
specifies that "no license shall be issued until the
dealer or exhibitor shall have demonstrated that his
facilities comply with the standards promulgated by the
has bifurcated its approach to licensing: For initial license
applications, an applicant must agree to comply with the
agency's prescribed standards and regulations, pay an
application fee, keep its facilities available for agency
inspection, and pass an agency compliance inspection of its
facilities before the license may be issued. 9 C.F.R.
§§ 2.1-2.12. For license renewals, an applicant
must submit an annual report, pay the appropriate application
fee, certify compliance and agree to continue to comply with
agency standards and regulations, id., and agree to
keep its facilities available for inspection by the agency
"to ascertain the applicant's compliance with the
standards and regulations, " id. § 2.3(a).
The agency treats the renewal procedure as administrative -
that is, if the requirements are met, the agency will issue a
license renewal. Id. § 2.2(b). Separately, USDA
conducts random inspections of licensed facilities as part of
its enforcement regime. See id. § 2.126.
Violations discovered during these inspections may lead to
license revocation or suspension, following notice and an
opportunity for a hearing. Id. § 2.12; 7 U.S.C.
Pamela Sellner own and operate the Cricket Hollow Zoo in
Manchester, Iowa. USDA granted their initial license
application in 1994, and it has renewed their license each
year since. Appellants Tracey and Lisa Kuehl, along with the
Animal Legal Defense Fund ("ALDF"), a non-profit
animal rights organization, brought suit against the agency
challenging its most recent renewal of the Sellners'
license. Appellants alleged that, at the time of the renewal,
the agency was aware that Cricket Hollow was in violation of
numerous animal welfare requirements under the Act and its
implementing regulations. Accordingly, they argued, the
agency's decision to renew the Sellners' license was
contrary to AWA's requirement that "no . . . license
shall be issued until the . . . exhibitor shall have
demonstrated that his facilities comply with the standards
promulgated by the Secretary." 7 U.S.C. § 2133.
They also asserted that the agency's reliance on the
Sellners' self-certification of compliance as part of its
renewal determination, despite having knowledge that the
certification was false, was arbitrary and capricious in
violation of the Administrative Procedure Act
District Court dismissed the case, concluding that USDA's
license renewal regulations constituted a permissible
interpretation of the Act. ALDF v. Vilsack, 169
F.Supp.3d 6 (D.D.C. 2016). Finding that the challenged
license renewal was issued in accordance with those
regulations, the court held that none of the challenges in
the complaint could succeed. Id. at 20. The Kuehls
and ALDF appealed the District Court's decision to this
court. We find that AWA's compliance demonstration
requirement does not unambiguously preclude USDA's
license renewal scheme and that the scheme is not facially
unreasonable. Accordingly, for the reasons set forth below,
we affirm the judgment of the District Court on the statutory
claim. However, we vacate the District Court's order
granting the Government's motion to dismiss
Appellants' arbitrary and capricious claim, and remand
the case to the District Court with instructions to remand
the record to the agency for further proceedings consistent
with this opinion.
Statutory and Regulatory Background
enacted the Animal Welfare Act in 1966 to ensure the humane
treatment of animals used in medical research. Pub. L.
89-544, 80 Stat. 350 (Aug. 24, 1966); see also 7
U.S.C. § 2131. In 1970, Congress amended the Act to
cover animal "exhibitors, " a category that
includes zoos. Pub. L. 91-579, 84 Stat. 1560-61 (Dec. 24,
1970); see also 7 U.S.C. § 2132(h). The Act
authorizes the Secretary of Agriculture to "promulgate
standards to govern the humane handling, care, treatment, and
transportation of animals by . . . exhibitors, "
including minimum standards addressing the animals'
"handling, housing, feeding, watering, sanitation,
ventilation, shelter . . ., adequate veterinary care, . . .
[and] for a physical environment adequate to promote the
psychological well-being of primates." 7 U.S.C. §
order to ensure compliance with those standards, the Act
prohibits an individual from exhibiting animals "unless
and until" he or she has "obtained a license from
the Secretary and such license shall not have been suspended
or revoked." Id. § 2134. The Act delegates
to the Secretary authority to prescribe the "form and
manner" by which an exhibitor must apply for a license,
"[p]rovided [t]hat no such license shall be issued
until the . . . exhibitor shall have demonstrated that his
facilities comply with the standards promulgated by the
Secretary pursuant to section 2143 of [the AWA]."
Id. § 2133 (emphasis omitted).
also grants the agency enforcement authority. "If the
Secretary has reason to believe that any person licensed as
a[n] . . . exhibitor . . . has violated or is violating any
provision of [the Act], or any of the rules or regulations or
standards promulgated by the Secretary [t]hereunder, he may
suspend such person's license temporarily . . . ."
Id. § 2149(a). "[A]fter notice and
opportunity for hearing, " the Secretary "may
suspend for such additional period as he may specify, or
revoke such license, if such violation is determined to have
occurred." Id. The Secretary may also impose
civil and criminal penalties. Id. § 2149(b),
the Secretary may "promulgate such rules, regulations,
and orders as he may deem necessary in order to effectuate
the purposes of [the statute]." Id. §
Secretary has delegated his responsibilities under the Act to
the Administrator of the Animal and Plant Health Inspection
Service ("APHIS"). See Animal Welfare;
Inspection, Licensing, and Procurement of Animals, 69 Fed.
Reg. 42089, 42089 (July 14, 2004) (to be codified at 9 C.F.R.
pts. 1, 2). Pursuant to that authority, APHIS has adopted a
comprehensive scheme of animal welfare requirements
applicable to licensees. See 9 C.F.R. §§
3.1-3.142 (2017). These include general and species-specific
requirements, such as providing potable water daily,
id. § 3.55, keeping enclosures reasonably free
of waste and regularly sanitized, id. § 3.1,
removing feces and food waste daily, id. §
3.11, and addressing social needs of primates to
"promote [their] psychological well-being, "
id. § 3.81.
agency has also promulgated a series of regulations governing
the granting, renewal, and revocation of animal exhibition
licenses. Since 1989, the implementing regulations have
distinguished between applications for an initial license and
those for annual license renewal. In their present form, the
regulations direct that an applicant for an initial license
must (1) "acknowledge receipt of the regulations and
standards and agree to comply with them by signing the
application form, " id. § 2.2(a); (2)
submit the appropriate fee, id. § 2.6; and (3)
"be inspected by APHIS and demonstrate compliance with
the regulations and standards . . . before APHIS will issue a
license, " id. § 2.3(b). By contrast, an
applicant for a license renewal must (1) pay the annual fee
before expiration of the license, id. §
2.1(d)(1); (2) self-certify "b y signing the application
form that to the best of the applicant's knowledge and
belief, he or she is in compliance with the regulations and
standards and agrees to continue to comply with [the same],
" id. § 2.2(b); and (3) submit an annual
report detailing the number of animals owned, held, or
exhibited at his or her facility, id. § 2.7.
Both types of applicants "must make his or her animals,
premises, facilities, vehicles, equipment, other premises,
and records available for inspection during business hours
and at other times mutually agreeable to the applicant and
APHIS." Id. § 2.3(a). "A license will
be issued to any applicant" that has met the relevant
regulatory requirements and has paid the application and
license fees. Id. § 2.1(c).
Factual and Procedural Background
Pamela Sellner first applied for an animal exhibition license
over twenty years ago. At the time, the couple operated a
small "mobile zoo" that included only a few
animals. See Kuehl v. Sellner, 161 F.Supp.3d 678,
690 (N.D. Iowa 2016). USDA granted the application and issued
a license for Cricket Hollow Zoo on May 27, 1994.
Appellees' Br. 16. The Sellners have since complied with
the administrative license renewal requirements at every
anniversary of the license's issuance. USDA has, in turn,
granted their renewal applications each year. Id.
The Sellners' 2015 license renewal application indicates
that the Zoo now houses approximately 193 animals. 2015
License Renewal Application, reprinted in Appendix
Tracey and Lisa Kuehl are Iowa residents. Supplemental
Complaint ("Supp. Compl.") ¶¶ 13-14, 24,
reprinted in App. 46, 50. They allege that they
visited Cricket Hollow Zoo on several occasions between 2012
and 2013. Id. ¶¶ 13-30, App. 46-51. Both
sisters claim that they experienced distress and anguish as a
result of witnessing animals in what they felt were inhumane
and harmful conditions. Id. Tracey Kuehl asserts
that she observed animals in enclosures that had
"standing water and accumulating excrement, " and
that "a lion was repeatedly ramming itself against the
cage wall, " which she interpreted as a sign of obvious
psychological distress. Id. ¶ 15, App. 47. She
later learned that three Meishan piglets had died in their
enclosure and that their bodies had not been removed before
the facility was opened to the public. Id.
¶¶ 18-19, App. 48. Lisa Kuehl similarly alleges
that she witnessed animals in isolated confinement and in
cages that lacked drinking water. Id. ¶¶
25-28, App. 50-51. She asserts that she observed "lions
and wolves covered with flies . . . [which] filled up the
interior of the animals' ears, " as well as a baby
baboon who was "separated from the other animals and
being continuously handled by humans." Id.
¶¶ 25, 27, App. 50.
Kuehls met with several state public officials and
organizations to share their concerns about the Zoo.
Id. ¶¶ 19-20, 26, App. 48-50. Tracey Kuehl
repeatedly wrote to USDA about the conditions of the
animals' enclosures. Id. In 2014, she wrote a
letter asking that the agency "carefully review the
consistent poor record of compliance [with AWA standards] and
not renew [the Zoo's] license to exhibit the animals to
the public." Id. ¶ 20, App. 49.
Kuehls also assert that USDA officials had knowledge, apart
from their letters, of Cricket Hollow's failure to comply
with certain AWA regulations and standards. Appellants'
Br. 3-5; see also Appellees' Br. 16-17.
Appellants allege that agency inspectors have repeatedly
reported that the animals lacked adequate veterinary care,
and that "[t]here are not enough employees to clean [the
Zoo] to meet appropriate husbandry standards . . . [or]
provide for the health and well-being of the animals."
Supp. Compl. ¶¶ 99-129, App. 63-68. They assert
that USDA has sent official warnings to the Sellners for
these "numerous non-compliances, " id.
¶ 117, App. 66, and the USDA regional director has
concluded that "it is clear that there is a chronic
management problem" at the Zoo, id. ¶ 108,
App. 64. Nonetheless, the agency granted the Sellners'
license renewal application in May of 2014. Id.
¶ 81, App. 59.
learning of the agency's 2014 renewal decision, the
Kuehls and ALDF filed this action against the Secretary in
the District Court on August 25, 2014. The original complaint
alleged that USDA's decision to renew the Zoo's
license in 2014 violated the Act because the Sellners had not
"demonstrated that [their] facilities comply" with
the requisite animal welfare provisions of the Act or its
regulations, which Appellants claim AWA § 2133 requires
before a renewal may be issued. Complaint ¶¶
123-28, ALDF, 169 F.Supp.3d 6 (D.D.C. 2016) (Dkt.
No. 1). In the alternative, the complaint asserted that the
agency's reliance on the Sellners' self-certification
of compliance in connection with the renewal decision was
arbitrary and capricious in violation of the Administrative
Procedure Act ("APA"), 5 U.S.C. § 706(2)(A).
2015, USDA again renewed the Zoo's license, and
Appellants filed a supplemental complaint on July 17, 2015,
challenging the 2015 renewal and the Zoo's "pattern
and practice" of renewing Cricket Hollow Zoo's
license despite knowing that the Zoo is not in compliance
with AWA regulations and standards. Supp. Compl. ¶¶
131-36, App. 68-69.
28, 2015, USDA moved to dismiss the suit under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim.
Appellants opposed that motion.
USDA produced its administrative record to the District
Court, it included only the Sellners' renewal
application, annual report, and evidence of payment of the
renewal fee. While the Government's motion to dismiss was
pending, Appellants moved for the court to compel inclusion
of additional administrative documents related to the Cricket
Hollow Zoo which they alleged were in the agency's
records, including inspection reports indicating that the Zoo
was out of compliance with AWA standards. The agency opposed
the motion, claiming that it did not rely on those records in
making its renewal decision and that they were ...