Standing on Their Own Four Legs: The Future of Animal Welfare Litigation after Animal Legal Defense Fund, Inc. V. Glickman

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I. INTRODUCTION

Marc Jurnove could not believe what he saw at the Long Island Game Park Farm and Zoo. Having spent the majority of his adult life working for various human and animal relief and rescue organizations,(1) Mr. Jurnove knew inhumane treatment when he saw it. This was certainly inhumane treatment. Primates, inherently social creatures, were kept in cages isolated from other primates, often not in view of the other cages.(2) Squirrel monkeys were kept in a cage next to adult bears, causing the monkeys fright and agitation.(3) Deprived of their psychological needs, the twenty-two primates(4) housed at the Game Farm were in need of assistance.

Because of his familiarity with and love for exotic animals,(5) Mr. Jurnove was deeply affected by his observations. After the first of his nine visits to the Game Farm, Mr. Jurnove contacted the United States Department of Agriculture (USDA) to secure help for these animals, but help never came. On repeated occasions, USDA failed to find any violations of the Animal Welfare Act (AWA)(6) at the Game Farm,(7) prompting Mr. Jurnove and three other individuals to seek legal action against USDA.

In 1996, in Animal Legal Defense Fund, Inc. v. Glickman (ALDF v. Glickman),(8) the Animal Legal Defense Fund (ALDF) successfully sued USDA on behalf of Mr. Jurnove for failing to adopt minimum standards for a physical environment adequate to promote the psychological well-being of animals at research facilities and roadside zoos.(9) However, the victory was short lived. There was still something keeping the primates from getting the help they needed--a legal fiction known as standing.

"Standing involves only one question: Who can obtain judicial review of an otherwise reviewable government action? Yet, standing law suffers from inconsistency, unreliability, and inordinate complexity."(10) In the first appellate review of ALDF v. Glickman,(11) a three judge panel of the United States Court of Appeals for the District of Columbia returned the type of decision that was known all too well by animal welfare activists and their attorneys. Without reaching the merits of the case, Judge David Sentelle, writing for the majority of the panel, held that the plaintiffs lacked the constitutional standing needed to challenge USDA's regulations.(12) Framing the issue as "the latest chapter in the ongoing saga of [ALDF's] effort to enlist the courts in its campaign to influence USDA's administration of the [AWA],"(13) the majority found that Marc Jurnove failed to meet two of the three requirements of standing under Article III of the United States Constitution--causation and redressability.(14) The decision was different from previous holdings, however. In a scathing dissent,(15) Judge Patricia Wald laid the groundwork for a rehearing en banc(16) that ultimately reversed the panel's ruling. In a seven to four decision, the court found Mr. Jurnove had proven that he suffered direct harm when he witnessed the living conditions of the primates at the Game Farm,(17) thereby opening a door to judicial review previously closed to animal welfare plaintiffs.

This Note examines the future of animal rights litigation after this groundbreaking decision. ALDF v. Glickman represents more than the first time individual plaintiffs were able to challenge USDA regulations for primate dealers, exhibitors, and research facilities. The ALDF v. Glickman case is important because it lays a foundation for animal welfare litigation to follow. A primary reason for the ineffectiveness of the AWA has been the inability of animal welfare plaintiffs and organizations to litigate under the statute. This does not result from deficient claims, but rather from jurisdictional challenges to third-party standing. By documenting the facts necessary to achieve standing, ALDF v. Glickman will enable other third-party plaintiffs to clear a once insurmountable hurdle. Further, the decision will result in renewed political pressure to improve enforcement of the AWA by adding a citizen suit provision to afford concerned citizens such as Mr. Jurnove additional opportunities to help animals living under inhumane conditions.(18)

This Note is divided into six parts. Part II discusses the evolution of the standing doctrine over the last two decades that led to the final decision in ALDF v. Glickman. Part III discusses and analyzes the majority and dissenting opinions of this landmark decision. Part IV addresses the implications that the decision will have on future animal welfare cases and presents the proper litigation strategy for animal welfare plaintiffs to follow to satisfy the elements of standing. Part V considers the ramifications of the decision outside of the litigation process, in particular, the potential for the creation of a citizen suit provision in the AWA. This Note concludes in Part VI that ALDF v. Glickman is neither a radical departure from previous standing cases nor a mere aberration. Rather, it represents the culmination of years of struggle to achieve standing on behalf of animals and fashions a precedent that will allow just that. It further concludes that ALDF v. Glickman's vindication of the animal welfare movement will spark a legal and political revolution in animal law.

II. AN INSURMOUNTABLE HURDLE? THE EVOLUTION OF THE

STANDING DOCTRINE

The passage of the AWA represents recognition by policy makers that animals must be afforded protection. The purpose of the Act is clear: "To insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment."(19) Even though the statute's original scope and purpose was expanded with later amendments,(20) the AWA's objectives remain unfulfilled. A primary reason for this failure lies in the inability of animal welfare activists and organizations "to litigate claims successfully against the federal government and individual violators under the statute."(21) Meritless claims are not the downfall of animal welfare plaintiffs; rather, "[i]t is in the doctrine of standing that animal rights activists have found their greatest obstacle to the extension of legal rights to animals."(22)

A. The Elements of Standing

"Standing is an essential, `threshold determinant of the propriety of judicial intervention."(23) There are two required types of standing--constitutional and prudential. Although these elements were developed by the courts, their application is often "tortured and overly technical."(24) The constitutional considerations are grounded in the "Cases" and "Controversies" requirement of the United States Constitution.(25) Three elements determine whether the courts can resolve the disputed issue--injury in fact, causation, and redressability.(26)

Once the constitutional elements of standing are met, the plaintiffs must also satisfy prudential concerns. Prudential concerns arise because third-party plaintiffs must enforce animal laws such as the AWA; animals have no standing to sue on their own behalf. Established through the Administrative Procedure Act (APA),(27) prudential elements require plaintiffs to demonstrate they are within the "zone of interests" Congress sought to protect by the section of the statute under which the action is brought.(28) Although the initial goal of the standing doctrine was to ensure parties before the court were truly adversarial and had personal stakes in the outcome,(29) the doctrine has become a judicial barrier to environmental plaintiffs who seek access to the courts.(30)

B. Standing Doctrine in Flux

The most troubling aspect of standing for animal welfare plaintiffs is the injury in fact requirement that, at a bare minimum, focuses the relevant inquiry on the interests and injuries suffered by humans, rather than injuries to the animals.(31) Despite Congress's continued interest in protecting the environment, the Supreme Court and D.C. Circuit have used standing analysis to limit the availability of judicial review in applying the standing doctrine to environmental plaintiffs.(32) Two decisions illustrating the height of judicial restraint are Lujan v. National Wildlife Federation(33) and Lujan v. Defenders of Wildlife.(34) Defenders of Wildlife, while closing the door on the particular plaintiffs in the suit, did open a window of opportunity for future litigants. Writing for the majority, Justice Scalia found that the plaintiffs had failed to establish a concrete, particularized injury in fact.(35) In describing why the Defenders of Wildlife plaintiffs did not satisfy the first element of standing, he described what it would take to confer standing: "It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm."(36) Subsequently, injury to a particular animal, rather than an animal species, became a well-established interest sufficient to establish injury in fact.

Whether the majority's analysis in Defenders of Wildlife is flawed,(37) there was no challenge to the additional limits placed on the type of injury that could satisfy the injury in fact requirement(38) until five years later when the Supreme Court granted certiorari in Bennett v. Spear.(39) Although Bennett deals with more expansive issues than Article III standing,(40) the Court's holding in this area significantly affects animal welfare plaintiffs. Again authoring the majority opinion, Justice Scalia changed injury in fact analysis by finding that 1) only minimal evidence is required at the pleading stage to demonstrate injury in fact, and 2) general allegations of the injury are sufficient to satisfy the first prong of constitutional standing.(41) Departing from earlier decisions by lessening the standing burden, Bennett represents a profound change in judicial attitudes towards the doctrine. Perhaps recognizing an error in his previous analysis, Justice Scalia ushered in a new era of standing doctrine by writing the first Supreme Court decision that relaxed standing requirements.

Whereas the early 1990s wielded standing as a weapon against environmental plaintiffs,(42) lower court decisions leading up to and in the wake of Bennett illustrate that the trend is reversing.(43) As a result of this paradigm shift in standing analysis and the district court's decision in ALDF v. Glickman, animal welfare plaintiffs finally believed that "the courts ha[d] carved out a standing niche for organizational and individual plaintiffs."(44) The niche was not as encompassing as they might have hoped, however, when the government's appeal of the district court's decision was decided in 1997.

C. The Panel's Decision

1. Judge Sentelle's Opinion

The animosity directed toward the plaintiffs in the first ALDF v. Glickman appeal was evident from the opening lines of the three-judge panel's majority opinion. Describing the case as the "latest chapter in the ongoing saga of [ALDF's] effort to enlist the courts in its campaign to influence USDA's administration of the [AWA],"(45) it is not difficult to surmise what Judge Sentelle would conclude: Marc Jurnove and the other plaintiffs lacked standing to sue.(46) Rejecting the district court's analysis that had found standing for the individual plaintiffs and associational standing for ALDF, Judge Sentelle held that the plaintiffs had failed to satisfy the rigors of constitutional standing.(47)

a. Injury in Fact

Addressing injury in fact, the majority found that the plaintiffs had suffered a general injury.(48) Judge Sentelle's opinion of the case was evident; describing the effects of seeing primates living under inhuman conditions, the decision states that it may be "part of the price of living in society, perhaps especially in a free society, that an individual will observe conduct that he or she dislikes."(49) Quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.(50)--where the Court held that a psychological injury caused by observing conduct that is disagreeable is not sufficient for standing--the majority belittled the concerns of the plaintiffs.(51) The analogy between the two situations is insulting.(52) Mr. Jurnove's injury is more akin to the environmental aesthetic injury found sufficient in National Wildlife Federation than the injurious effects of observing disagreeable religious conduct. The harm done to a person observing a primate living under inhumane conditions surpasses the injury caused by reading about conduct that offends one's concept of the Establishment Clause.

Nonetheless, focusing on the psychological distress element of Mr. Jurnove's injury claim,(53) the majority expressed doubt that the individual plaintiffs had demonstrated a cognizable injury in fact.(54) The majority, however, "assum[ed]" the plaintiffs had demonstrated an injury in fact for the purposes of Article III.(55)

b. Causation

In "`a breathtaking attack on the legitimacy of virtually all judicial review of agency action,'"(56) the majority of the panel denied standing based on Mr. Jurnove's inability to allege causation and redressability. Beginning with causation, the majority concluded that the plaintiffs' claims were not fairly traceable to USDA's failure to promulgate the minimum standards required by the AWA.(57) Noting that no case law supported the causal nexus between agency inaction and the asserted injury, the court found that the alleged connection was "attenuated" and insufficient.(58) The court disagreed "that a regulation which permits third parties to engage in offensive behavior, but does not require them to do so, may fairly be said to cause an injury resulting from the behavior of the third parties."(59) The permissive regulation does not have the "`determinative or coercive effect' on the third parties which would render the alleged injuries fairly traceable to governmental action."(60) Rejecting causation in this manner, the majority effectively eliminated third-party challenges to federal agencies. Limiting causation to agency action that directly compels offensive behavior in a regulated entity, Judge Sentelle made an error in judgment that would lead to the grant of rehearing.(61)

c. Redressability

Addressing redressability, the court concluded that the plaintiffs had failed to meet their burden of showing it is "likely" the relief they sought will alleviate the alleged injury.(62) Discrediting their claim, the court found that the plaintiffs "were not entirely clear as to how any such alleviation would be accomplished."(63) The majority also noted that no judicial action could "obliterate[]" Mr. Jurnove's "painful memories" of seeing the primates in inhumane conditions.(64) However, the majority opinion mischaracterizes Mr. Jurnove's asserted injury and the requested relief.(65) Mr. Jurnove wants to study and observe the primates under humane conditions; he would be able to do so (and therefore receive redress) if he prevailed on the merits. Although Mr. Jurnove recounted how he is "haunted" by the memory of the events at the Game Farm,(66) he never asserts this as his injury. Rather, Mr. Jurnove's uncontested affidavit states that his injury resulted from his inability to "observe, study, and enjoy [the] animals in humane conditions."(67) Mr. Jurnove's claims were thereby dismissed through mischaracterization(68) and because he could not prove the impossible.

The majority opinion also denied ALDF's alleged associational standing for its notice and comment claim, finding that the organization's "predicament is shared by many others, indeed by the world at large."(69) Ignoring the fact that ALDF qualifies as an "interested person[]" for the sake of the APA,(70) the majority undermined the remedial purposes of the statute by denying persons to whom Congress granted a legal right an opportunity to remedy a violation of that right. Rather, the majority reasoned that ALDF failed to show that there was any particularized effect of the general injury caused to them by USDA's failure to promulgate adequate standards for primates in roadside zoos.(71)

The concept that standing doctrine was evolving to allow third-party plaintiffs entrance to court seemed but an illusion. However, this time there was a difference. Set against this restrictive interpretation of standing law,(72) Judge Wald dissented from the majority of the panel and wrote a dissent that would bring animal welfare groups one step closer to an unprecedented legal victory.(73)

2. Judge Wald's Dissent

In an artfully scripted, legally compelling dissent, Judge Wald recalled the words of Justice Douglas, who argued that

   IT]he critical question of "standing" [in environmental cases] would be
   simplified and also put neatly in focus if we fashioned a federal rule that
   allowed environmental issues to be litigated before federal agencies or
   federal courts in the name of the inanimate object about to be despoiled,
   defaced, or invaded.(74)

Recognizing the validity of this theory and realizing that ALDF v. Glickman did not require a holding as drastic as granting animals themselves standing (as Justice Douglas seemed to be alluding to), Judge Wald found that Mr. Jurnove "more than met the requirements for standing."(75)

The difference for Judge Wald lies more in her approach to the issue rather than a different interpretation of the facts. Explaining the majority's causation and redressability analysis, the dissent states that "the majority opinion has strayed from a reasonable interpretation of standing requirements under Supreme Court and our circuit's law."(76) Using cases the majority ignored,(77) Judge Wald found injury in fact met by Mr. Jurnove's affidavit that "describes in great detail how conditions at the Game Farm directly impair his well-established and lifelong aesthetic interest in ... seeing these animals in a humane environment."(78)

The dissent concludes that Mr. Jurnove also alleged causation and redressability, recognizing the "Catch-22" that the majority opinion imposes.(79) First, the dissent rejects the restricted reading of causation espoused by the majority.(80) With a more expansive view of causation, Judge Wald found that the affidavit "makes clear" that the conditions at the Game Farm persisted precisely because USDA failed to enact sufficiently stringent regulations.(81) Second, the dissent questions the majority's rejection of redressability.(82) Calling the requirement a "Catch-22," Judge Wald explained that the majority opinion asked for the impossible.(83) Mr. Jurnove cannot get access to the Game Farm plan explaining how they have implemented USDA regulations.(84) Therefore, he cannot know if they are in violation.(85) Following an established line of precedent,(86) the dissent concludes that redressability was met because Mr. Jurnove stated in his affidavit that he planned to return to the Game Farm in the future.(87) Finally, discussing the prudential element of standing--not discussed by the majority--Judge Wald concluded that, based on "logic, legislative history, and the structure of the AWA," Mr. Jurnove fell within the zone of interests protected under the AWA's provisions on animal exhibitions.(88)

3. The Petition for Rehearing

How is it possible that the same affidavit can be found sufficient for standing at the district court and then be interpreted two different ways on appeal? The answer lies not in the facts alleged or even the cases offered for support, but rather on the philosophy of the judges. The tone of the majority and dissenting opinion in the ALDF v. Glickman panel decision makes this point aptly. It was not the specificity of the affidavits that made the difference, but rather the judges' competing concepts of the standing doctrine.(89) As Judge Wald concluded, "it is …