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Animal Legal Defense Fund v. United States Department of Agriculture

ELR Citation: 45 ELR 20232
Nos. 13-55868, (9th Cir., 12/07/2015)

The Ninth Circuit, in an unpublished opinion, reversed and remanded a lower court decision dismissing an animal rights group's lawsuit concerning foie gras produced from the livers of force-fed poultry. The group had petitioned USDA's Food Safety and Inspection Service (FSIS) to ban such foie gras. FSIS denied the petition, and the groups filed suit under the APA seeking to set aside the denial as arbitrary, capricious, and an abuse of discretion. The lower court dismissed the case sua sponte, finding FSIS' denial of the petition to be substantively equivalent to an agency decision not to take an enforcement action and, therefore, unreviewable under the APA. But the appellate court disagreed. As opposed to enforcement actions, which are typically focused on past breaches of existing laws and regulations, the requested foie gras rules would have only future effect. The decision whether to promulgate a new rule turns in significant part on the agency's interpretation of a statutory term—here, the term “adulterated” as used in the Poultry Products Inspection Act (PPIA). FSIS' denial was therefore premised on questions of statutory construction, which are a quintessential subject of judicial review. Nothing in the PPIA suggests that the purpose of the statute would be frustrated were a court to evaluate FSIS' decision. To the contrary, the statute authorizes FSIS to promulgate regulations to “protect the health and welfare of consumers,” which is what the petition purports to accomplish. The court, therefore, reversed the lower court's ruling on this point. But because the lower court did not consider standing, the case was remanded to evaluate those arguments in the first instance.