USDA/APHIS Lawsuit Unsuccessful; Appeal Undecided

Many of you have already heard that last week the United States District Court of the District of Columbia upheld the USDA Retail Pet Store Rule. This means the lawsuit for an injunction to block implementation of the rule was not successful. We have not yet heard from the attorneys handling the case whether an appeal would be feasible. A serious consideration is that lawsuits, however they are decided, set precedents. If we don’t have a reasonable chance of success, we do not want to set another precedent in this area.  
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The Virginia Federation of Dog Clubs and Breeders and several of our member clubs supported the lawsuit, and we are disappointed at the outcome. The alternative, however, was to do nothing, and we believe dog breeders and our various organizations have done far too much of that in the war against animal rights. We are proud to have been part of this effort and will keep you updated on news of an appeal, if any.

Here is an excellent summary of the outcome, as published on the Keepourdomesticanimals.com website. You can find all background information and progress reports there as well.

RETAIL PET STORE LAWSUIT UPDATE Nov 10, 2014

On Friday afternoon, November 7, 2014, the United States District Court for the District of Columbia upheld the USDA Retail Pet Store Rule. While we are obviously disappointed in the Court’s ruling, we are now assessing the merits of an appeal. If we decide to appeal the ruling, we must file a formal notice of appeal within 30 days of the Court’s Decision.

Our attorneys are reviewing the court’s 15 page opinion in order to determine what our strongest arguments are if we decide to appeal. Although the chances for success for any appeal are far lower when the lower court has ruled against the plaintiffs, it does not mean that there is no chance of success for an appeal. That is the virtue of the appellate process – – the court of appeals is required to take a fresh look at the arguments that we made to the district court. If we were to appeal, our legal briefs and the lower court’s opinion would be reviewed by a panel of three different judges.

All who have supported the lawsuit should take heart in knowing that a collateral benefit of the lawsuit is that it slowed the momentum of the HSUS and USDA from asking Congress for millions of dollars in extra appropriations to fund the hiring of new APHIS inspectors to accelerate the process of sweeping potentially tens of thousands of hobby breeders into the requirement to be USDA licensed. And now that we will have a more fiscally conservative congress beginning in January, Congress may be less apt to fund requests for more APHIS inspectors, especially if the rule is being challenged on appeal. Here it is noteworthy that Judge Cooper’s opinion included the following quotes:

“The conference report for the bill (February Farm Act) explains that the amendment was meant to codify APHIS’s prior de minimus exception, so that APHIS could focus its limited budget and inspection and enforcement staff on entities that pose the greatest risk to animal welfare and public safety.’ 160 Cong. Rec. H1269-01. The conference report also recommended that APHIS engage in rulemaking to further define the de minimus exception given ‘confusion among the regulated industry’ over the term ‘breeding female.’”

It is also noteworthy that to date USDA and APHIS have ignored the congressional direction for a new rulemaking for eight straight months!

We anticipate that a decision will be made as to whether to an appeal will be filed within the next two weeks.

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