Animal Legal Defense Fund v. U.S. Department of Agriculture , 789 F.3d 1206 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12260
________________________
D.C. Docket No. 1:13-cv-20076-JAL
ANIMAL LEGAL DEFENSE FUND,
ORCA NETWORK,
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,
HOWARD GARRETT,
SHELBY PROIE,
PATRICIA SYKES,
KAREN MUNRO,
Plaintiffs – Appellants,
SHELBY PROIE,
PATRICIA SYKES,
Plaintiffs,
versus
U.S. DEPARTMENT OF AGRICULTURE,
SECRETARY, U.S. DEPARTMENT OF AGRICULTURE,
ELIZABETH GOLDENTYER,
in her official capacity as Eastern Regional Director of the
United States of Agriculture Animal and Plant Health Inspection Service,
MARINE EXHIBITION CORPORATION,
d/b/a/ Miami Seaquarium,
Defendants – Appellees.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 15, 2015)
Before HULL, BLACK and MELLOY, * Circuit Judges.
BLACK, Circuit Judge:
The Animal Legal Defense Fund, Orca Network, People for the Ethical
Treatment of Animals, Inc., Howard Garrett, and Karen Munro (collectively,
ALDF) 1 appeal the district court’s grant of summary judgment in favor of the
United States Department of Agriculture; Tom Vilsack, in his official capacity as
Secretary of the United States Department of Agriculture; and Elizabeth
Goldentyer, in her official capacity as Eastern Regional Director of the United
States Department of Agriculture Animal and Plant Health Inspection Service
(collectively, USDA). ALDF argues the district court erred in ruling USDA’s
decision to renew Marine Exhibition Corporation d/b/a Miami Seaquarium’s
(Seaquarium) license did not violate the Animal Welfare Act (AWA), 7 U.S.C.
§§ 2131–59. According to ALDF, USDA may not renew a license when USDA
*
The Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
1
Pursuant to Federal Rule of Appellate Procedure 42(b), Appellants moved to dismiss
the appeal as to Shelby Proie and Patricia Sykes, on the basis that Proie’s current employment
prohibits her from being involved in the litigation and Sykes is now deceased. This Court
granted the motion to dismiss the appeal without prejudice as to Proie and dismissed the appeal
of Sykes as moot. Proie and Sykes are therefore no longer parties to this appeal.
2
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knows an exhibitor is noncompliant with any animal welfare standards on the
anniversary of the day USDA originally issued the license.2
Congress has prescribed what an exhibitor must do to obtain issuance of a
license in the first instance, but Congress has not spoken precisely to the question
of license renewal under the AWA. USDA in turn has adopted comprehensive
renewal regulations. USDA’s renewal scheme requires Seaquarium to submit a
form summarily certifying its regulatory compliance, a fee, and an annual report
setting forth the number of exhibited animals. No annual inspection occurs. Given
the thousands of exhibitors across the country and its limited resources, USDA
conducts license renewal through a purely administrative procedure.
USDA has adopted a different mechanism to achieve substantive compliance
with animal welfare standards. The USDA regulations provide for random,
unannounced inspections to verify substantive compliance with the AWA. When
violations are discovered, either through inspections or third-party complaints, the
USDA can charge Seaquarium and seek to suspend or revoke its license after
2
There is some confusion arising from USDA’s characterization of ALDF’s argument.
USDA believes ALDF has argued the license renewal scheme is unlawful “because the
regulations do not require a demonstration of compliance with the AWA prior to renewal.”
(USDA Response Brief at 2.) In its reply brief, though, ALDF clarifies that it “make[s] no such
argument,” and does not seek annual inspections of exhibitor facilities. (ALDF Reply Brief at
1.) Rather, ALDF “challenge[s] the USDA’s specific decision to renew the license of
Seaquarium despite evidence that the facility is in violation of several Welfare Act standards.”
(Id.) (emphasis removed). For the purposes of this appeal, we assume, without deciding, that
USDA renewed the license despite knowing there was evidence Seaquarium was violating
several AWA standards.
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requisite due process. USDA must provide notice to Seaquarium by filing a
complaint before an administrative law judge (ALJ) who conducts a hearing in
accordance with detailed rules of administrative practice. The ALJ’s decision is
then subject to judicial review exclusively in the United States Court of Appeals.
USDA’s licensing regulations constitute a reasonable policy choice
balancing the conflicting congressional aims of due process and animal welfare,
and the AWA licensing scheme is entitled to deference by this court. We therefore
affirm. As explained below, assuming Seaquarium violated a substantive AWA
standard, the remedy in this case lies not in the administrative license renewal
scheme, but in USDA’s power to initiate an enforcement proceeding. USDA has
the discretionary enforcement authority to revoke a license due to noncompliance.
Only Congress, not this Court, possesses the power to limit the agency’s discretion
and demand annual, substantive compliance with animal welfare standards.
I. BACKGROUND 3
A. Lolita
Lolita is a 20-feet long, 7000 pound Orcinus orca 4 held in captivity at
Seaquarium. In 1970, Ted Griffin, the first person to swim with an orca in a public
3
We recount the facts in the light most favorable to USDA.
4
The Orcinus orca is colloquially known by the misnomer “killer whale.” The creature
is not actually a whale; rather, it is the world’s largest member of the dolphin family called
Delphinidae. Both whales and dolphins are members of an entirely aquatic group of mammals
known as cetaceans. For the sake of scientific accuracy, we refer to Lolita as an orca.
4
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exhibition, captured Lolita in Whidbey Island’s Penn Cove, off the coast of
Washington State. Lolita was approximately three to six years old and a member
of the Southern Resident L Pod. Seaquarium purchased Lolita, and she has lived
there since September 24, 1970. Lolita performs each day in an event called the
“Killer Whale and Dolphin Show.”
Lolita lives in a tank which is surrounded by stadium seating. The stadium
covering leaves Lolita exposed to ultraviolet radiation as she floats along the
water’s surface. As sunscreen, Seaquarium applies a black-colored zinc oxide on
Lolita’s skin. The effect of this sunscreen on Lolita’s physiology is unknown.
ALDF alleges Seaquarium’s failure to provide Lolita with adequate sun cover
violates 9 C.F.R. § 3.103(b)’s requirement to afford adequate protection from the
weather or direct sunlight to marine animals kept outdoors.
Lolita’s tank is oblong-shaped with a 5 feet 2 inches wide, crescent-shaped
concrete platform that extends from the bottom of the tank through the surface of
the water. Lolita’s trainers stand on this platform during her performances. Her
tank measures 80 feet by 60 feet. The concrete platform leaves an unobstructed
circular pool of 80 feet by 35 feet. ALDF alleges Lolita’s tank is smaller than the
48 feet minimum horizontal standard permitted by agency regulation. See id. §
3.104(b) (providing cetaceans in captivity must be given a pool of water with a
minimum horizontal dimension of at least “two times the average adult length” of
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the species).
Orcas are primarily social in the wild and travel in large groups. Lolita has
not interacted with another orca since Hugo, who was also captured off the coast of
Washington State, died in March 1980. Lolita instead shares her tank with Pacific
white-sided dolphins. ALDF alleges these dolphins are not “biologically related”
to her, as prescribed by 9 C.F.R. § 3.109.
B. Renewal of Seaquarium’s License
Seaquarium received an AWA license from USDA. Each April since the
issuance of the license, USDA has renewed Seaquarium’s license before its one-
year expiration date. On February 16, 2012, before the expiration of Seaquarium’s
license in April 2012, ALDF sent a letter to USDA alleging Seaquarium exhibited
Lolita in violation of 9 C.F.R. §§ 3.103(b), 3104(b), and 3.109. ALDF stated
Lolita’s living conditions were inhumane and the renewal of Seaquarium’s license
would be unlawful. In a March 28, 2012 letter, Goldentyer responded to ALDF’s
letter, stating USDA intended to renew Seaquarium’s exhibitor license because it
found Seaquarium was in “compliance with the regulations and standards, and
none of the other criteria for license denial under Section 2.11 or 2.12 are
applicable.” USDA renewed Seaquarium’s license on April 21, 2012.
C. License Renewal Regulations
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The AWA prohibits exhibitors 5 from exhibiting any animals unless they
“have obtained a license from the Secretary and such license shall not have been
suspended or revoked.” 7 U.S.C. § 2134. “[N]o such license shall be issued” until
the exhibitor “shall have demonstrated that his facilities comply with the standards
promulgated by the Secretary.” Id. § 2133. In addition to this statutory command,
the AWA vests USDA with the authority to “promulgate such rules, regulations,
and orders as he may deem necessary in order effectuate the purposes” of the
statute. 7 U.S.C. § 2151. Pursuant to this section, USDA has adopted
comprehensive renewal regulations that combine purely administrative
requirements, random inspections, and discretionary enforcement proceedings.
On or before the expiration date of his or her one-year license, an exhibitor
must submit a completed application form to the appropriate USDA regional office
fulfilling three, purely administrative criteria. See 9 C.F.R. § 2.1(d). First, the
exhibitor certifies by signing the application form that, to the best of her
knowledge or belief, she is compliant and will continue to comply with all AWA
animal wildlife standards. Id. § 2.2(b). Second, the exhibitor pays an annual fee
calculated according to USDA’s fee schedule that varies according to the number
of animals owned, held, or exhibited. Id. § 2.6. Third, the exhibitor submits an
5
The AWA defines an “exhibitor” as “any person . . . exhibiting any animals, which
were purchased in commerce or the intended distribution of which affects commerce, or will
affect commerce, to the public for compensation.” 7 U.S.C. § 2132(h).
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annual report detailing the number of animals owned, held, or exhibited. Id.
§ 2.7(d). So long as an exhibitor meets these three criteria, even if her facility fails
to comply with animal wildlife standards on the license expiration date, USDA
must grant her a renewal. See id. § 2.2(b) (stating “[USDA] will issue a license”
after applicant fulfills administrative requirements). Otherwise, the license
automatically terminates due to expiration. Id. § 2.5(b).
Unlike the purely administrative procedure for renewing a license, USDA’s
mechanism for suspending or terminating licenses due to animal welfare violations
depends on random inspections and enforcement proceedings. Each applicant for
renewal is obligated to make her “animals, premises, facilities, vehicles,
equipment, other premises, and records available for inspection . . . to ascertain the
applicant’s compliance with the standards and regulations.” Id. § 2.3(a). USDA’s
administrative renewal scheme facilitates these inspections by requiring a licensee
to “promptly notify [USDA] by certified mail of any change in the name, address,
management, or substantial control or ownership of his business or operation, or of
any additional sites, within 10 days of any change.” Id. § 2.8. In addition to
random inspections, any interested person may submit information to USDA
regarding alleged violations by a licensee. 7 C.F.R. § 1.133(a)(1); see also 9
C.F.R. § 4.1 (applying USDA’s Uniform Rules of Practice for adjudicatory
proceedings to section 19 of the AWA (codified at 7 U.S.C. § 2149)). In response,
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USDA can choose to investigate the submission if, in the opinion of the agency,
such an investigation is “justified by the facts.” 7 C.F.R. § 1.133(a)(3).6
Under the AWA’s supplemental rules of procedure, USDA may suspend a
license temporarily for 21 days upon written notification before an opportunity for
notice and hearing if USDA has reason to believe a licensee has violated or is
violating the AWA. 9 C.F.R. § 4.10. If, on the basis of inspections or the receipt
of third-party information, USDA chooses to suspend a license for more than 21
days, impose a civil penalty, or terminate a license, USDA must afford notice and a
hearing in an enforcement proceeding. Id. § 2.12 (stating “license may be
terminated during the license renewal process . . . after a hearing in accordance
with the applicable rules of practice”). An interested person who submits a third-
party complaint to the agency “shall not be a party to any proceeding which may
be instituted as a result thereof.” 7 C.F.R. § 1.133(a)(4).
USDA initiates the enforcement proceeding by filing a complaint with the
USDA Hearing Clerk, id. § 1.133(b)(1), who assigns the case to an ALJ that
conducts the proceeding according to formal rules of evidence and procedure, see
id. § 1.133–51. Unless a licensee subject to an ALJ’s adverse decision appeals to a
Judicial Officer appointed by the Secretary of Agriculture, that decision becomes a
final order. Id. § 1.145(i). Finally, the licensee may appeal an order that is final
6
It is during this time period, when USDA discovers evidence of AWA violations, that
USDA undertakes the cooperative enforcement measures described infra at Section III(B)(2)(b).
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for the purposes of judicial review to the United States Court of Appeals of the
circuit in which she resides or has her principal office, or in the District of
Columbia Circuit. 7 U.S.C. § 2149(c); 28 U.S.C. § 2343.
D. ALDF’s Complaint
On August 22, 2012, ALDF filed a complaint against USDA for declaratory
and injunctive relief in the United States District Court for the Northern District of
California. The complaint alleged Seaquarium houses Lolita in conditions that
violate the AWA’s standards for granting a license pursuant to 7 U.S.C. §§ 2133–
34. ALDF alleged USDA acted unlawfully by (1) renewing Seaquarium’s license
in April 2012 and (2) routinely renewing Seaquarium’s AWA license each year.
Pursuant to 5 U.S.C. § 706(2)(A), (C) of the Administrative Procedure Act (APA),
ALDF requested the district court to set aside the USDA’s April 2012 decision to
renew Seaquarium’s license, award reasonable attorneys’ fees and costs, and grant
any further relief deemed just and proper. The Northern District of California
granted Seaquarium’s motion to intervene and USDA’s 28 U.S.C. § 1404(a)
motion to transfer the case to the Southern District of Florida.
E. Motion for Summary Judgment
USDA moved for summary judgment. USDA argued ALDF confused the
issuance of a license with the annual renewal of a license. While 7 U.S.C. § 2133
requires a demonstration of compliance with the Secretary’s standards before
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“such license shall be issued,” USDA asserted the AWA is silent as to any
requirements for renewal of a license already issued. Since the AWA did not
explicitly address renewal, USDA promulgated administrative renewal regulations
to fill this statutory gap. USDA argued these regulations are a permissible
construction of the AWA.
In response, ALDF asserted the AWA’s animal welfare compliance
requirement unambiguously applies to initial licenses and license renewals;
therefore, USDA violated § 2133 when it renewed the license despite
Seaquarium’s alleged failure to comply with applicable AWA standards. Further,
USDA’s distinction between an issuance and a renewal was simply a post hoc
litigation strategy not entitled to deference. ALDF also claimed USDA’s
interpretation was an unreasonable construction of the statute because it would
render the entire licensing scheme “virtually meaningless.” Exhibitors like
Seaquarium could keep receiving licenses even if USDA knows they are blatantly
violating AWA standards.
F. District Court Order
The district court granted summary judgment to USDA. The district court
did not request or examine the administrative record because the material facts
were not in dispute and the only contested issue was a pure question of law.
Applying the two-step framework of Chevron U.S.A., Inc. v. Natural Resources
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Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984), the district court
ruled Congress had not spoken to the precise question of license renewal under the
AWA because the text and legislative history were silent as to the requirements
and procedure for renewal. Accordingly, USDA was free to implement its own
administrative renewal scheme.
Under Chevron Step Two, the district court concluded USDA’s renewal
process was a permissible construction of the statute. USDA had adopted a purely
administrative renewal scheme requiring a licensee to submit a certification of
regulatory compliance, payment of an annual fee, and submission of an annual
report detailing the number of animals owned, held, or exhibited during the prior
year. This administrative scheme was coupled with a random, unannounced
inspection program that, according to USDA, secured AWA compliance more
efficiently than an annual inspection program. Accordingly, the district court held
USDA’s decision to renew Seaquarium’s license despite alleged noncompliance
with animal welfare standards did not violate 7 U.S.C. § 2133. ALDF filed a
timely notice of appeal.
II. STANDARD OF REVIEW
“We review questions of subject matter jurisdiction de novo.” Yunker v.
Allianceone Receivables Mgmt., Inc., 701 F.3d 369, 372 n.2 (11th Cir. 2012)
(italics omitted). “We review a summary judgment ruling de novo, applying the
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same legal standards used by the district court.” See Johnson v. Bd. of Regents of
Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). In conducting this
examination, we view the materials presented and all factual inferences in the light
most favorable to the nonmoving party. See Adickes v. S. H. Kress & Co., 398
U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970). Summary judgment is appropriate
where “there is no genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
A. Judicial Reviewability
Before discussing the merits of the district court’s summary judgment
motion, we address a threshold issue regarding this Court’s subject matter
jurisdiction over the present controversy. See Scarfo v. Ginsberg, 175 F.3d 957,
960 (11th Cir. 1999) (“[P]arties cannot waive subject matter jurisdiction, and we
may consider subject matter jurisdiction claims at any time during litigation.”).
ALDF brings this suit for judicial review of USDA’s agency action pursuant
to 5 U.S.C. § 702. Section 702 provides that any “person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial review thereof.” Id.
This provision is inapplicable, however, to the extent “agency action is committed
to agency discretion by law.” Id. § 701(a)(2). Whether an agency action is
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reviewable under § 701(a)(2) is a matter of subject matter jurisdiction. See Lenis v.
U.S. Attorney Gen., 525 F.3d 1291, 1293–94 (11th Cir. 2008); but see Sierra Club
v. Jackson, 648 F.3d 848, 853–54 (D.C. Cir. 2011) (holding agency decisions
excluded from judicial review by § 701(a)(2) are not justiciable because relief
cannot be granted, but courts still retain subject matter jurisdiction over such
controversies).
The Supreme Court has held § 701(a)(2) precludes APA review whenever
the statute under which the agency acts “is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise of discretion”—
that is, where a court would have “no law to apply.” Heckler v. Chaney, 470 U.S.
821, 830–31, 105 S. Ct. 1649, 1655 (1985) (internal quotation marks omitted).
Due to the general unsuitability for judicial review of agency decisions to refuse
enforcement, a presumption arises that such decisions are committed to agency
discretion by law and thus unreviewable. Id. at 832, 105 S. Ct. at 1656 (holding
“an agency’s decision not to take enforcement action should be presumed immune
from judicial review under § 701(a)(2)”); see also Conservancy of Sw. Fla. v. U.S.
Fish & Wildlife Serv., 677 F.3d 1073, 1084 (11th Cir. 2012) (same).
The presumption of unreviewability does not apply to this case. ALDF does
not seek an injunction requiring USDA to initiate enforcement proceedings against
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Seaquarium. 7 Instead, ALDF seeks a judicial order setting aside USDA’s
affirmative decision to renew Seaquarium’s license in April 2012. This case is
about an “affirmative act of approval under a statute,” Heckler, 470 U.S. at 831,
105 S. Ct. at 1655, in particular, USDA’s affirmative decision to renew
Seaquarium’s license in April 2012. See id. at 832, 105 S. Ct. at 1656 (stating an
agency’s refusal to act “does not infringe upon areas that courts often are called
upon to protect,” as opposed to affirmative agency action that “itself provides a
focus for judicial review, inasmuch as the agency must have exercised its power in
some manner”).
USDA’s decision was not committed to agency discretion by law so as to
render it unreviewable. The AWA provides “meaningful standard[s]” against
which to judge USDA’s exercise of discretion. See id. at 821, 105 S. Ct. at 1655
We accordingly hold USDA’s renewal of Seaquarium’s April 2012 license is a
final agency action subject to judicial review under § 706(2).
B. AWA Requirements for License Renewal
To determine whether USDA’s decision to renew Seaquarium’s license in
April 2012 must be set aside as unlawful under 5 U.S.C. § 706(2), we evaluate the
merits of USDA’s interpretation of the AWA’s licensing requirements. In doing
7
Both parties acknowledge that if ALDF sought an injunction requiring the agency to
initiate an enforcement proceeding against Seaquarium, this Court would lack subject matter
jurisdiction.
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so, we apply the two-step framework formulated in Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).
Under Chevron, we afford deference to certain agency interpretations because “[i]f
Congress has explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific provision of the statute
by regulation.” Id. at 843–44, 104 S. Ct. at 2782. Unlike courts, who “are not
experts in the field, and are not part of either political branch of the Government,”
agencies possess invaluable technical expertise and, by virtue of their
accountability to the President, are a proper forum to make policy choices based on
unresolved “competing interests.” Id. at 865–66, 104 S. Ct. at 2793.
1. Chevron Step One
When reviewing an agency’s construction of a statute it administers, we first
decide whether Congress has directly spoken to the question at issue. Id. at
842, 104 S. Ct. at 2781. “If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842–43, 104 S. Ct. at 2781.
To decide if the intent of Congress is clear, we employ traditional tools of
statutory construction. See id. at 843 n.9, 104 S. Ct. at 2781 n.9. These include
“examination of the text of the statute, its structure, and its stated purpose.”
Miami–Dade Cnty. v. EPA, 529 F.3d 1049, 1063 (11th Cir. 2008). “As with any
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question of statutory interpretation, we begin by examining the text of the statute to
determine whether its meaning is clear.” Harry v. Marchant, 291 F.3d 767, 770
(11th Cir. 2002) (en banc). This is because “we presume that Congress said what it
meant and meant what it said.” Id. (quotation omitted).
a. Statutory language
The precise question before us is whether USDA may renew a license even
if it knows an exhibitor is not compliant with AWA standards governing “the
humane handling, care, treatment, and transportation of animals,” 7 U.S.C.
§ 2143(a)(1), on the anniversary of the date USDA originally issued the license.
For example, if USDA issues a license on January 1, 2010, and USDA knows an
exhibitor is violating an AWA standard when the clock strikes 12:01am on January
1, 2011, may USDA still renew the license? To answer whether Congress has
directly spoken to this question, we turn to the plain language of 7 U.S.C. § 2133,
which provides:
The Secretary shall issue licenses to dealers and exhibitors upon
application therefor in such form and manner as he may prescribe and
upon payment of such fee established pursuant to 2153 of this title:
Provided, That no such license shall be issued until the dealer or
exhibitor shall have demonstrated that his facilities comply with the
standards promulgated by the Secretary pursuant to section 2143 of
this title . . . .
The parties dispute whether the word “issue” unambiguously encompasses the
word “renew.”
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“Issue” is not defined in the AWA. In the absence of a statutory definition,
“we look to the common usage of words for their meaning.” Consol. Bank, N.A.,
Hialeah, Fla. v. U.S. Dep’t of Treasury, Office of Comptroller of Currency, 118
F.3d 1461, 1464 (11th Cir. 1997). “Issue” is defined, in the sense linguistically
relevant to the circumstances here, as “to come out, go out,” “to proceed or come
forth from a usually specified source,” or “to cause to appear or become available
by officially putting forth or distributing or granting or proclaiming or
promulgating.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1201 (3d ed.
1976). 8
The word “renew” is also not defined in the AWA, nor does it even appear
anywhere in the statute. “Renew” means “to make new again,” “to restore to
fullness or sufficiency,” or “to grant or obtain an extension of.” Id. at 1922.
Comparing these two definitions, we conclude the plain meaning of “issue”
does not necessarily include “renew.” Rather than make a license “come out” or
“go out,” one could “restore to fullness” a license that has already “come out” or
“gone out.” In fact, that is precisely the type of licensing regime USDA has
established under the AWA. USDA makes a license “go out” once an applicant
has met the requirements for an issuance. After USDA makes the license go out, it
8
We have chosen to use a 1976 dictionary because it is more contemporaneous to the
1966 enactment of the AWA than a modern edition. See Taniguchi v. Kan Pac. Saipan, Ltd.,
___ U.S. ___, 132 S. Ct. 1997, 2003 n.2 (2012) (using “contemporaneous dictionaries” to
elucidate meaning of statutory term).
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remains “valid and effective” unless the licensee fails to comply with the
administrative renewal process. See 9 C.F.R. § 2.5(a) (stating a “license issued
under this part shall be valid and effective” unless “revoked or suspended pursuant
to section 19 of the Act”). No license is given out during the renewal process;
instead, the exhibitor maintains the same license number. Based on our analysis of
§ 2133 standing alone, we cannot conclude Congress has spoken to the precise
question at issue.
Whether a statutory term is unambiguous, however, does not turn solely on
dictionary definitions of its component words. Rather, “[t]he plainness or
ambiguity of statutory language is determined by reference to the language itself,
the specific context in which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843,
846 (1997). “In expounding a statute, we must not be guided by a single sentence
or member of a sentence, but look to the provisions of the whole law, and to its
object and policy.” United States v. Heirs of Boisdoré, 49 U.S. (8 How.) 113, 122
(1850). Examination of the whole AWA statute strengthens USDA’s argument
that Congress did not unambiguously require compliance with animal welfare
standards on the date of license renewal.
In particular, Congress’s enactment of the AWA’s § 2149 enforcement
provision severely undermines the assertion Congress conditioned license renewal
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on an exhibitor’s compliance with AWA standards on the anniversary of the date
USDA originally issued the license. The heading of § 2149 is “Violations by
licensees.” See Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S. Ct.
1219, 1226 (1998) (“[T]he title of a statute and the heading of a section are tools
available for the resolution of a doubt about the meaning of a statute.” (internal
quotation marks omitted)). As the heading suggests, § 2149 spells out the
adjudicative process for punishing a licensee, i.e., one who already holds a license,
see WEBSTER’S NEW INTERNATIONAL DICTIONARY 1304 (3d ed. 1976) (defining
licensee as “a licensed person”). Section 2149(a) says:
If the Secretary has reason to believe that any person licensed as a
dealer, exhibitor, or operator of an auction sale subject to section
2142 of this title, has violated or is violating any provision of this
chapter, or any of the rules or regulations or standards promulgated by
the Secretary hereunder, he may suspend such person’s license
temporarily, but not to exceed 21 days, and after notice and
opportunity for hearing, may suspend for such additional period as he
may specify, or revoke such license, if such violation is determined to
have occurred.
Subsection (c) authorizes judicial review of final USDA enforcement orders
exclusively in the United States Courts of Appeals.
If § 2133 mandated the revocation of a license whenever USDA thinks the
exhibitor has failed to demonstrate compliance on an anniversary date, the due
process protections afforded to licensees in § 2149 would be mere surplusage. See
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 698, 115
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S. Ct. 2407, 2413 (1995) (“A reluctance to treat statutory terms as surplusage
supports the reasonableness of the Secretary’s interpretation.”). To revoke a
license, USDA would not need to bring an enforcement proceeding against a
licensee; the agency could patiently bide its time until the license anniversary
rolled around, then immediately revoke the license for failure to demonstrate
compliance. The exhibitor would have no right to a hearing, nor would she have a
right to appeal the denial of her renewal application. In light of the protracted time
often necessary to litigate a final agency decision through an appeal, USDA would
have no reason to initiate any enforcement proceedings against licensees. Surely
Congress did not enact § 2149 to lull licensees into relying on due process
protections that do not actually exist.
Moving beyond the AWA itself, a survey of § 2133’s relationship to the
whole United States Code shows issuing a license is not unambiguously the same
as renewing one. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528, 109
S. Ct. 1981, 1994 (1989) (Scalia, J., concurring) (remarking a statute should be
understood in a manner “most compatible with the surrounding body of law into
which the provision must be integrated—a compatibility which, by a benign
fiction, we assume Congress always has in mind”). Whereas Congress did not
explicitly address renewal in the AWA, Congress has demonstrated an ability to
address renewal when it intends to do so. See, e.g., 7 U.S.C. § 85 (stating
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Secretary “may refuse to renew . . . any license”); 12 U.S.C. § 5105(a) (discussing
“minimum standards for license renewal”); 16 U.S.C. § 808 (setting forth detailed
renewal process); 46 U.S.C. § 7106(a) (stating “license issued” may be “renewed
for additional 5-year periods”); 47 U.S.C. § 1421(b)(2) (describing “renewal” of
“initial license”).
“Where Congress knows how to say something but chooses not to, its
silence is controlling.” In re Haas, 48 F.3d 1153, 1156 (11th Cir. 1995),
abrogated on other grounds by In re Griffith, 206 F.3d 1389 (11th Cir. 2000).
Congress could have unequivocally conditioned license renewal upon
demonstrated compliance with AWA standards on the anniversary of license
issuance, but chose instead to limit § 2133’s language to issuance alone. On this
question, “more important than what Congress said” in § 2133 “is what Congress
left unsaid.” See Gonzalez v. Reno, 212 F.3d 1338, 1348 (11th Cir. 2000). Since
the AWA does not mandate a renewal procedure at all, much less prescribe the
“particulars of that procedure,” id., Congress has conferred USDA the discretion to
implement an administrative renewal scheme for AWA licenses.
In sum, the plain language of the statute shows Congress has not directly
spoken to whether USDA can renew a license despite knowing that an exhibitor is
noncompliant with animal welfare standards on the anniversary of the day USDA
originally issued the license. The terms “issue” and “renew” have distinct
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meanings; § 2149’s due process protections would be meaningless if we adopted
ALDF’s interpretation; and Congress’s silence regarding renewal is controlling.
b. Legislative history
When, as here, the words of Congress are clear, “we need not resort to
legislative history, and we certainly should not do so to undermine the plain
meaning of the statutory language.” Harris v. Garner, 216 F.3d 970, 976 (11th
Cir. 2000) (en banc). We nonetheless examine the AWA’s legislative history
because it is consistent with our conclusion that Congress has not spoken directly
to the question of license renewal. See id. at 977 (discussing legislative history
consistent with plain meaning); United States v. Fields, 500 F.3d 1327, 1330 (11th
Cir.2007) (“[W]e look to the legislative history of the statute to determine whether
Congress provided any guidance concerning its intent.”). Like the statutory
language itself, the most striking feature of the AWA’s legislative history is its
almost total silence regarding renewal.
As with the current statute, none of the prior versions of the AWA mention
license renewal. Congress enacted the AWA in 1966. See Laboratory Animal
Welfare Act, PUB. L. NO. 89-544, 80 STAT. 350 (1966). Section 3 stated the
“Secretary shall issue licenses to dealers upon application therefor in such form
and manner as he may prescribe,” provided that “no such license shall be issued
until the dealer shall have demonstrated that his facilities comply with the
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standards promulgated by the Secretary pursuant to section 13 of this Act.” Id. § 3,
80 Stat. at 351. Also like the current version of the AWA, Congress authorized
USDA to suspend a license through enforcement proceedings safeguarded by
notice, hearing, and appeal. Id. § 19, 80 Stat. at 352. The word renewal is
conspicuously absent, and the topic is omitted from the bill’s congressional reports.
See generally H.R. REP. NO. 89-1848 (1966) (Conf. Rep.); S. REP. NO. 89-1281
(1966).
Subsequent amendments never discussed license renewal or fundamentally
altered the scheme for revoking licenses. See Animal Welfare Act of 1970, PUB. L.
NO. 91-579, 80 STAT. 1560; Animal Welfare Act Amendments of 1976, PUB. L.
NO. 94-279, 90 STAT. 417; Food Security Act of 1985, PUB. L. NO. 99-198,
§§ 1751– 59, 99 STAT. 1354, 1645–50; Food, Agriculture, Conservation, and Trade
Act of 1990, PUB. L. NO. 101-624, § 2503, 104 STAT. 3359, 4066–68; Farm
Security and Rural Investments Acts of 2002, PUB. L. NO. 107-171, §§ 10301–05,
116 STAT. 134, 491–94. In sum, Congress has never squarely addressed the
precise question at issue.
The parties’ and our independent research have revealed only two
exceptions to this legislative silence. The first exception appears in H.R. 3556,
87th Cong. § 10–11 (as reported by S. Comm. on Interstate and Foreign
Commerce, Sept. 28–29, 1962), an unenacted bill sponsored by Rep. Morgan M.
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Moulder of Missouri in 1962. This unenacted bill would have required persons
conducting animal research to obtain a “letter of qualification,” id. § 10, similar to
a “license” under the current statute. Interestingly, the letter would be “valid for
no more than one year,” but would “be renewed by the Commissioner if renewal is
requested, subject to the requirements for an original letter of qualification.” Id.
§ 11. Thus, Rep. Moulder’s bill contemplated a renewal procedure as to individual
letters of qualification conditioned upon annual compliance. By contrast, with
regard to the “certificate of compliance” issued to the laboratory itself, the bill
established no separate compliance requirement for renewal. Id. § 7–9, 12.
Section 15 instead established a method for suspending or revoking a certificate of
compliance through notice via mail and publication in the Federal Register. Id. §
15.
Considered alone, the bill’s text lends credence to USDA’s argument that
Congress considered whether to condition license renewal upon annual compliance
with animal welfare standards but declined to do so when enacting the AWA.
Under these particular circumstances, however, we decline to infer any such
conclusion when (1) neither the bill nor a subsequent version were enacted into
law, (2) the bill was proposed in the 87th rather than 89th Congress, (3) and Rep.
Moulder did not hold office after the 87th Congress, see MOULDER, Morgan
Moore, BIOGRAPHIC DIRECTORY OF THE U.S. CONGRESS,
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http://bioguide.congress.gov/scripts/biodisplay.pl?index=M001045 (last visited
March 28, 2015). The connection between Rep. Moulder’s bill introduced in
subcommittee and the AWA’s passage in 1966 is simply too attenuated to divine
Congress’s intent.
The second exception to the legislative silence regarding AWA license
renewal appears in Rep. George E. Brown, Jr. of California’s remarks inserted into
the Congressional Record on June 13, 1995. See 141 CONG. REC. E1239–40
(1995) (statement of Rep. George E. Brown, Jr.). According to Rep. Brown, who
was “intimately involved in the 1985 amendments to the Animal Welfare Act,”
It was clearly the intent of Congress that facilities should come
into compliance before being issued the initial registrations, and that
license renewals should be withheld where licenses have been
suspended or revoked or in instances where facilities are not in
compliance with the provisions of the act.
Id. ALDF argues Rep. Brown’s statement shows Congress unambiguously
intended to withhold any license—whether an issuance or renewal—from an out-
of-compliance applicant.
Rep. Brown’s statement lacks persuasive force. Though the Congressman
may have assisted in crafting the 1985 amendments to the AWA, those
amendments made no alterations to the AWA’s licensing provisions. Furthermore,
Congress passed the 1985 amendments 19 years after 1966—the year Congress
enacted the AWA language relevant to this appeal. Rep. Brown’s opinion provides
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negligible insight into Congress’s intent. See Chrysler Corp. v. Brown, 441 U.S.
281, 311, 99 S. Ct. 1705, 1722 (1979) (“The remarks of a single legislator . . . are
not controlling in analyzing legislative history.”).
In addition to legislative silence, USDA’s regulatory actions since the
AWA’s passage in 1966, combined with Congress’s inaction, further suggest
Congress has not spoken directly to the precise question under consideration.
“Ordinarily, and quite appropriately, courts are slow to attribute significance” to
legislative acquiescence. See Bob Jones Univ. v. United States, 461 U.S. 574, 600,
103 S. Ct. 2017, 2032 (1983). Here, however, one can draw an inference of
ambiguity, however minimal, from Congress’s inaction.
USDA has drawn a lengthy and unerring distinction between AWA license
issuance versus renewal. USDA promulgated its first regulations interpreting the
AWA on February 24, 1967. See Laboratory Animal Welfare, 32 Fed. Reg. 3270
(Feb. 24, 1967). Section 2.4 was titled “Issuance of licenses,” and USDA could
not “issue[]” a license absent a prior demonstration of compliance. Id. at 3271. By
contrast, § 2.8 was titled “Renewal and termination.” Id. In order to renew a
license and avoid automatic termination, a licensee had to fulfill two purely
administrative annual requirements: (1) file a form documenting specified dollar
receipts and (2) pay a renewal fee. Id.
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The significance of the contrast between § 2.4 (issuance) and § 2.8 (renewal)
is highlighted by § 2.5, titled “Duration of license.” Id. Section 2.5 laid out three,
independent methods by which a license may be terminated. Id. First, under
subsection (a), a license could be “revoked or suspended” for failure to comply
with AWA standards after notice, hearing, and appeal. Id. Second, under
subsection (b), a license could be “automatically terminated” pursuant to § 2.8,
which governs renewal. Id. Third, under subsection (c), a license could be
“voluntarily terminated” upon the licensee’s request. Id. It has thus been clear
since 1967 that USDA regulations do not authorize automatic termination for
failure to comply with animal welfare standards. Automatic termination occurs
only if a licensee fails to meet its purely administrative obligations.
Subsequent versions of the regulations have maintained this distinction. See,
e.g., Animal Welfare, 54 Fed. Reg. 36123-01 (Aug. 31, 1989); Animal Welfare,
Licensing and Records, 60 Fed. Reg. 13893-01 (Mar. 15, 1995); Animal Welfare,
Inspection, Licensing, and Procurement of Animals, 69 Fed. Reg. 42089-01 (July
14, 2004). Despite this nearly half-century old interpretation, the legislative
history does not disclose any serious attempt to overturn USDA’s 1967
rulemaking. Congress’s legislative acquiescence adds weight to USDA’s
proposition that 7 U.S.C. § 2133 is ambiguous as to license renewal.
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After applying the traditional canons of statutory interpretation to both the
relevant text and legislative history, we find Congress has not spoken directly to
whether the AWA prohibits USDA from renewing a license when USDA knows
an exhibitor has failed to comply with the standards governing the humane
handling, care, treatment and transportation of animals on the anniversary date of
his or her license. Accordingly, we proceed to Chevron Step Two.
2. Chevron Step Two
Under Chevron Step Two, the question for this Court is “whether the
agency’s answer is based on a permissible construction of the statute.” Chevron,
467 U.S. at 843, 104 S. Ct. at 2782. Because Congress has expressly delegated
authority to USDA to elucidate the meaning of 7 U.S.C. § 2133 through regulation,
those regulations “are given controlling weight unless arbitrary, capricious, or
manifestly contrary to the statute.” Id. at 843–44, 104 S. Ct. at 2782. If USDA’s
construction of the statute is reasonable in light of the policies committed to its
care by the AWA, this Court may not substitute its own construction of the
statutory provision. Id. at 845, 104 S. Ct. at 2783. Our duty is to decide whether
USDA’s construction is a reasonable one in light of the statutory scheme. Id.
a. Post hoc rationalization
We initially address ALDF’s assertion that USDA’s license renewal scheme
is not entitled to Chevron deference because USDA’s view is merely a litigation
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position and not a reasoned interpretation of the AWA. “An after-the-fact
rationalization of agency action—an explanation developed for the sole purpose of
defending in court the agency’s acts”—is not entitled to deference. Gonzalez, 212
F.3d at 1350; see also Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168, 83 S. Ct. 239, 246 (1962) (“The courts may not accept appellate counsel’s
post hoc rationalizations for agency action.”). ALDF raises two reasons why
USDA’s interpretation is merely a post hoc rationalization. We address each in
turn.
First, ALDF argues Goldentyer’s March 28, 2012 letter demonstrates
USDA, prior to this litigation, considered demonstrated compliance a statutory
prerequisite for AWA license renewal.9 The letter says USDA intended to renew
9
Though ALDF mentioned Goldentyer’s letter in its complaint and briefing before the
district court, ALDF never submitted the letter itself into this Court’s record. ALDF filed a
motion with this Court to supplement the record with the letter from Goldentyer. ALDF asks us
to admit the letter pursuant to Federal Rule of Appellate Procedure 10(e)(2) or, in the alternative,
this Court’s equitable powers.
We deny the motion to supplement pursuant to Rule 10(e)(2). The Rule states “[i]f
anything material to either party is omitted from or misstated in the record by error or accident,
the omission or misstatement may be corrected” by the court of appeals. Supplementation under
Rule 10(e)(2) is not warranted because the parties never presented the letter to the district court,
nor did they inadvertently omit the letter from the record. See Ross v. Kemp, 785 F.2d 1467,
1474 (11th Cir. 1986) (“Because the information in the affidavits was not before the district court
in any form, and because neither of the parties relied on the evidence at an earlier point in the
proceedings, Fed. R. App. P. 10(e) is inapplicable . . . .”).
We also decline to admit the letter pursuant to our equitable powers because its admission
would not establish beyond any doubt the proper resolution of the pending issues. See CSX
Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1330 (11th Cir. 2000) (“A primary factor
which we consider in deciding a motion to supplement the record is whether acceptance of the
proffered material into the record would establish beyond any doubt the proper resolution of the
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Seaquarium’s exhibitor license because it found Seaquarium was in “compliance
with the regulations and standards, and none of the other criteria for license denial
under Section 2.11 or 2.12 are applicable.” Contrary to ALDF’s protestations, the
letter does not prove USDA’s interpretation of 7 U.S.C. § 2133 is a post hoc
litigation position. 10
As discussed above, USDA first articulated its license renewal policy not
during this litigation, but in 1967. See Laboratory Animal Welfare, 32 Fed. Reg.
3720, 3721, §§ 2.4–2.5 (Feb. 24, 1967) (setting independent requirements for
license issuance versus renewal). While Goldentyer’s letter “may not harmonize
perfectly” with earlier USDA interpretations, Gonzalez, 212 F.3d at 1350, this is
not a case where the agency’s position is “wholly unsupported by regulations,
rulings, or administrative practice,” Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 212, 109 S. Ct. 468, 473–74 (1988). Put another way, one paragraph, from
one letter, from one regional administrator, does not outweigh an agency’s
pending issues.”). With regard to the post hoc litigation argument explained infra, this letter
alone does not outweigh the USDA’s statutory interpretation embodied in notice-and-comment
rulemaking for nearly fifty years. With regard to the administrative record issue explained infra
in footnote 13, the district court did not err in disregarding the administrative record because
examining the record would have been pointless. Supplementing the record with the letter would
thus not substantially aid the resolution of the issues on appeal.
10
Although we deny the motion to supplement the record, we still take notice and
consider those portions of the letter quoted in ALDF’s complaint. Again, we assume, without
deciding, that USDA renewed the license despite knowing there was evidence Seaquarium was
violating several AWA standards. See supra footnote 2.
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statutory interpretation embodied in notice-and-comment rulemaking for nearly
fifty years.
Second, ALDF contends USDA’s interpretation is inconsistent with its own
regulations. ALDF trains its attention on two regulations: 9 C.F.R. § 2.1(c)(2) and
§ 2.3(a).
Under § 2.1(c)(2), a license will be issued when the “applicant has paid the
application fee of $10 and the annual license fee indicated in § 2.6 to the
appropriate Animal Care regional office for an initial license, and, in the case of a
license renewal, the annual license fee has been received by the appropriate
Animal Care regional office on or before the expiration date of the license.”
ALDF argues the regulation says a “license renewal” is “issued,” thus
contradicting USDA’s interpretation that “issue” in 7 U.S.C. § 2133 does not apply
to renewal.
The other allegedly inconsistent regulation is § 2.3(a). According to §
2.3(a), “[e]ach applicant” shall demonstrate his or her compliance with the AWA
standards, and “[e]ach applicant for an initial license or license renewal” shall
make itself available for inspection. ALDF argues this subsection establishes that
renewal applicants, just like initial applicants, are required to comply with AWA
standards before USDA makes any licensing decision.
ALDF reads too much significance into these two (and the USDA admits)
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poorly drafted regulatory subsections. Under well-established administrative law,
courts defer to an agency’s consistent interpretation of its own regulation, “which
becomes of controlling weight unless it is plainly erroneous or inconsistent with
the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65
S. Ct. 1215, 1217 (1945). Such deference is due particularly when the agency “has
made a written interpretation of the regulation or has maintained a longstanding
policy on the subject.” McKee v. Sullivan, 903 F.2d 1436, 1438 n.3 (11th Cir.
1990). The regulations issued in 1967 establish USDA has long adhered to the
interpretation that issuance and renewal are separate processes, and compliance
with AWA standards is not a prerequisite to renewal. See Laboratory Animal
Welfare, 32 Fed. Reg. 3720 (Feb. 24, 1967) (differentiating between issuance and
renewal of licenses). USDA is therefore entitled to significant deference in
interpreting the meaning of §§ 2.1(c)(2) and 2.3(a) within the AWA regulatory
framework.
As USDA explains, § 2.1(c)(2) is a payment timing provision; the regulation
specifies the moment in time at which an applicant satisfies the licensing
requirements after submitting his or her fee. Prior to 2004, § 2.1(c)(2) did not
mention renewal and required the application fee to “clear[] normal banking
procedures.” See Animal Welfare, 54 Fed. Reg. 36123-01, 36148 (Aug. 31, 1989).
Responding to comments from the public, in 2004 USDA eliminated the
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requirement for bank clearance and instead imposed a penalty for bounced checks.
Animal Welfare, Inspection, Licensing, and Procurement of Animals, 69 Fed. Reg.
42089-01, 42091 (July 14, 2004). To accomplish this objective, USDA added a
new clause mentioning “license renewal” to clarify the bank clearance requirement
no longer applied to either initial or renewal licenses. See id. Viewed this way,
USDA’s interpretation of § 2.1(c)(2) is reasonable. This is especially so when
there is no indication in the rulemaking record USDA intended, through this minor
amendment, to reverse its four-decade long policy of distinguishing between
license issuance and renewal. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468, 121 S. Ct. 903, 909–10 (2001) (a lawmaking entity “does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in mouseholes”).
Additionally, USDA proffers that § 2.3(a) does not condition license
renewal on demonstrated compliance with AWA standards. Rather, § 2.3(a)
affirms that initial and renewal applicants have an ongoing legal duty to maintain
compliance and submit to random inspections. Violation of this duty can result in
enforcement proceedings. We find this to be a plausible interpretation of § 2.3(a).
Subsection (b), unlike subsection (a), applies only to initial applicants and requires
a demonstration of compliance “before [USDA] will issue a license.” USDA’s
credible interpretation of § 2.3(a) is supported by the rulemaking record. During
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its 1989 notice-and-comment rulemaking, USDA deleted the phrase “before a
license will be issued” from a proposed 1987 rule to illuminate that renewal is not
conditioned on prior demonstrated compliance. See Animal Welfare Regulations,
54 Fed. Reg. 10835-01, 10840 (proposed Mar. 15, 1989).
While USDA deserves no plaudits for its regulatory draftsmanship, the two
regulatory subsections cited by ALDF fail to render USDA’s license renewal
interpretation “plainly erroneous or inconsistent,” Bowles, 35 U.S. at 414, 65 S. Ct.
at 1217. USDA’s explanations of these provisions’ intended meaning and
relationship to the whole regulatory framework are imminently reasonable. These
regulations thus do not render USDA’s interpretation of 7 U.S.C. § 2133 a mere
post hoc litigation position.
b. Reasonableness of agency interpretation
Having found USDA’s interpretation of the AWA license renewal scheme is
entitled to deference, we turn to whether that interpretation is reasonable under
Chevron Step Two. We conclude USDA’s interpretation—which does not
condition renewal on compliance with animal welfare standards on the anniversary
of the license issuance date—is a reasonable one. The USDA’s renewal scheme is
a sensible policy choice that balances the competing demands of due process and
animal welfare.
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USDA’s administrative renewal process requires a licensee to submit an
application fulfilling three requirements: (1) a certification “that, to the best of
applicant’s knowledge and belief, he or she is in compliance with the regulations
and standards and agrees to continue to comply with the regulations and
standards,” 9 C.F.R. § 2.2(b); (2) payment of an annual fee, id. § 2.6(c); and
(3) submission of an annual report, id. § 2.7(d). 11 See Rules and Regulations,
Department of Agriculture, Animal Welfare; Licensing and Records, 60 Fed. Reg.
13893-01, 13894 (Mar. 15, 1995) (creating three renewal requirements).
Compliance with AWA standards is not a condition precedent for renewal.
Compare 9 C.F.R. § 2.2(b) (stating USDA “will renew” a license after fulfilling
administrative requirements), with id. § 2.3(b) (stating applicant for “initial
license” shall “demonstrate compliance with regulations and standards . . . before
[USDA] will issue a license”). After obtaining an initial license, licensees are
subject to random inspections, id. § 2.3, and USDA may bring enforcement
proceedings to suspend or revoke a license, id. § 2.5; 7 U.S.C. § 2149.
USDA’s construction of the AWA’s license renewal process was “a
reasonable policy choice for the agency to make.” Chevron, 467 U.S. at 845, 104
S. Ct. at 2783. USDA’s administrative renewal scheme furthers the AWA’s
11
As an exhibitor, Seaquarium’s annual reports must “set forth in his or her license
renewal application and annual report the number of animals owned, held, or exhibited by him or
her, including those which are leased, during the previous year or at the time he signs and dates
the report, whichever is greater.” 9 C.F.R. § 2.7(d).
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competing goals of promoting animal welfare and affording due process to
licensees. Purely administrative renewal keeps USDA’s records up-to-date, and
then allows the agency to protect animal welfare through random, unannounced
inspections. Given its limited resources, USDA could not annually inspect the
facilities of every zoo, aquarium or other exhibitor across the country, 12 or initiate
license termination proceedings for every violation, no matter how minor. USDA
has exercised its “broad discretion to choose how best to marshal its limited
resources and personnel to carry out its delegated responsibilities.” See
Massachusetts v. EPA, 549 U.S. 497, 527, 127 S. Ct. 1438, 1459 (2007). At the
same time, the exclusive use of enforcement proceedings to suspend or revoke
licenses for noncompliance fosters Congress’s intent to protect licensees from
arbitrary agency action, as codified at 7 U.S.C. § 2149. USDA’s interpretation
restrains the agency from using the renewal process as a means to bypass
licensees’ right to notice, a hearing, and an appeal.
ALDF also claims the renewal process is unreasonable because, according to
the agency’s regulations, USDA is obligated to renew a license even if USDA
knows the licensee is failing to comply with the AWA standards. USDA’s
“rubber-stamping” licensing scheme thus allegedly sanctions animal abuse in
12
As of 2004, USDA regulated over 2,500 exhibitors possessing AWA licenses. Animal
Welfare, Inspection, Licensing, and Procurement of Animals, 69 Fed. Reg. 42089-01, 42099
(July 14, 2004).
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direct contravention of congressional intent.
ALDF overlooks that, after granting a license renewal, USDA retains the
authority under its regulations to suspend or revoke a license for noncompliance.
Indeed, according to USDA’s experience administering the AWA, revoking a
license for a minor infraction does not always promote maximum animal welfare.
Animal Welfare, Inspection, Licensing, and Procurement of Animals, 69 Fed. Reg.
42089-01, 42094 (July 14, 2004). Due to the threat of USDA enforcement and the
imposition of sanctions less severe than revocation, exhibitors are incentivized to
rectify violations within a short time window. See id. According to the USDA,
this brand of cooperative enforcement “has been more effective than enforcement
actions for each citation.” Id. Since USDA issues numerous citations to exhibitors
for minor violations that do not directly or immediately impact animal welfare, it is
“unrealistic and counterproductive” to risk the stressful release or transfer or
animals by making license renewal contingent on demonstrated compliance. See
id.
The AWA licensing regulations embody a reasonable accommodation of the
conflicting policy interests Congress has delegated to the USDA. The regulations
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are entitled to Chevron deference, and USDA therefore did not act arbitrarily or
capriciously by renewing Seaquarium’s license. 13
IV. CONCLUSION
Administration of the AWA standards involves a subject matter that is
“technical, complex, and dynamic.” Nat’l Cable & Telecomms. Ass’n v. Gulf
13
ALDF raises one additional issue. ALDF argues the district court erred in failing to
require production of the administrative record to determine whether USDA’s decision to renew
the April 2012 license was “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C.
§ 706(2)(A). ALDF contends Goldentyer’s letter shows USDA granted the April 2012 license
renewal because it found Seaquarium’s facilities complied with AWA standards. Assuming the
agency was not required to ensure Seaquarium’s compliance with AWA standards before
renewing the license, USDA’s finding that Seaquarium was in compliance should, ALDF urges,
still be reviewed upon remand to the district court. Under the Chenery doctrine, “[w]hen an
administrative decision is based on inadequate or improper grounds, a reviewing court may not
presume that the [agency] would have made the same decision on other, valid grounds.” Am.
Pub. Transit Ass’n v. Lewis, 655 F.2d 1272, 1278 (D.C. Cir. 1981); see SEC v. Chenery Corp.
(II), 332 U.S. 194, 196, 67 S. Ct. 1575, 1577 (1947); SEC v. Chenery Corp. (I), 318 U.S. 80, 88,
63 S. Ct. 454, 459 (1943).
There is no need to remand this case to the district court for additional fact finding
because the agency’s alleged error was harmless. An agency decision is harmless “when a
mistake of the administrative body is one that clearly had no bearing on the procedure used or
the substance of decision reached.” U.S. Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979)
(quotation omitted) (binding authority because in Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to close of business on September 30, 1981); see 5
U.S.C. § 706 (when reviewing agency action “due account shall be taken of the rule of
prejudicial error”).
ALDF has conceded Seaquarium fulfilled the only three licensing renewal criteria
required by law: (1) filing a certification of compliance, (2) paying a fee, (3) and submitting an
annual report. Because there is no factual dispute about whether USDA correctly found
Seaquarium satisfied all licensing requirements, the district court had no reason to examine the
administrative record. Directing the district court to scrutinize the administrative record to
evaluate whether USDA complied with a fictitious legal requirement would be the height of
pointlessness. Salt River Project Agric. Improvement & Power Dist. v. United States, 762 F.2d
1053, 1060, n.8 (D.C. Cir. 1985) (“When it is clear that based on the valid findings the agency
would have reached the same ultimate result, we do not improperly invade the administrative
province by affirming.”).
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Case: 14-12260 Date Filed: 06/15/2015 Page: 40 of 40
Power Co., 534 U.S. 327, 339, 122 S. Ct. 782, 789 (2002). Tasked by Congress to
perform the difficult job of reconciling the inherently conflicting interests of due
process and animal welfare, USDA has exercised its expertise to craft a reasonable
license renewal scheme based on a permissible construction of the AWA. USDA
has acted within the bounds of Congress’s delegated authority.
As long as USDA refuses to initiate a discretionary enforcement proceeding,
the remedy ALDF and Lolita’s legion of supporters seek lies not in the federal
courts, but in the halls of Congress. Our democratically elected leaders alone have
the authority to limit USDA’s license-renewal discretion in this matter and to
demand annual, substantive compliance with animal welfare standards. While we
are sensitive to the plight of Lolita and other animals exhibited across this country,
we cannot say USDA violated the AWA by renewing Seaquarium’s license
through its purely administrative scheme. For the foregoing reasons, we must
affirm the district court’s grant of summary judgment to USDA.
AFFIRMED.
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