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Alternatives Research and Development Foundation v. Vilsack

United States District Court, E.D. Pennsylvania

March 30, 2017



          John R. Padova, J.

         Alternatives Research and Development Foundation (“ARDF”) commenced this breach of contract action pursuant to the Little Tucker Act, 28 U.S.C. § 1346(a)(2), against Defendants Tom Vilsack, the Secretary of the United States Department of Agriculture (the “USDA”), and Chester Gipson, the Deputy Administrator of Animal Care with the USDA's Animal and Plant Health Inspection Service. ARDF seeks a remedy for USDA's alleged breach of the terms of a litigation settlement agreement pursuant to which the USDA agreed to enact regulations concerning the use of birds in research, product testing and education. Specifically, ARDF asks for less than $10, 000 in monetary damages, as well as an order remanding the case to the USDA “for relief that is incident of and collateral to the money judgment, ” i.e., an order requiring USDA to enact bird-specific regulations.

         Defendants have filed a Motion to Dismiss ARDF's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6). We held oral argument on the Motion on March 3, 2017, and thereafter permitted the parties to submit supplemental briefing. For the following reasons, we grant Defendants' Motion insofar as it seeks dismissal pursuant to Rule 12(b)(1), and we dismiss ARDF's Complaint for lack of subject matter jurisdiction.


         The Complaint alleges that ARDF is a non-profit organization, whose “mission is to advance animal welfare by advocating for and supporting the development, validation, and adoption of non-animal methods in biomedical research, product testing and education.” (Compl. ¶ 8.) For more than seventeen years, ARDF has been involved in efforts to protect birds. (Id. ¶ 11.) Among its efforts have been those to gain protection for birds pursuant to the Animal Welfare Act (the “AWA”), 7 U.S.C. § 2131 et seq., a federal statute that was enacted to “‘to insure that animals intended for use in research facilities or for exhibition purposes . . . are provided humane care and treatment.'” (Id. ¶¶ 11, 15 (quoting 7 U.S.C. § 2131).) To accomplish the AWA's purpose, the USDA is directed to “‘promulgate standards to govern the humane handling, care, treatment and transportation of animals'” covered by the AWA. Id. ¶ 17 (quoting 7 U.S.C. § 2143(a).)

         Through the mid-1990s, the AWA protected dogs, cats, monkeys, guinea pigs, hamsters, and rabbits, but did not protect birds, rats, and mice. (See Compl. ¶¶ 23-26.) It also, however, defined covered “animals” to include “‘such other warmblooded animal, as the Secretary may determine is being used, or is intended to use, for . . . exhibition purposes.'” (Id. ¶ 23 (quoting 7 U.S.C. § 2132(g) (1970).) On April 29, 1998, ARDF and others filed a Petition for Rulemaking, requesting that the USDA amend its definition of “animal” in the federal regulations to include birds, rats and mice (all warm-blooded animals), and they subsequently filed a federal action in the District of Columbia, challenging the exclusion of such animals from AWA protection and seeking declaratory and injunctive relief. (Id. ¶¶ 26-27); see Alternatives Research & Dev. Found. v. Glickman, 101 F.Supp.2d 7 (D.D.C. 1999). On September 25, 2000, the parties to the lawsuit entered into a “Stipulation of Dismissal” pursuant to Fed.R.Civ.P. 41(a)(1), in which Defendants agreed “to initiate and complete rulemaking on the regulation of birds, rats[, ] and mice within a reasonable time in accordance with the Administrative Procedure Act.” (Compl. ¶ 28 (alteration in original); Stip. of Dismissal, attached as Ex. A to Compl., ¶ 2.)

         In 2002, Congress explicitly amended the AWA's statutory definition of covered animals to “‘exclude[] . . . birds, rats . . ., and mice . . ., bred for use in research, '” thereby permitting coverage for birds, rats and mice not bred for use in research. (Compl. ¶¶ 33-34 (quoting 7 U.S.C. § 2132(g)).) In 2004, the USDA amended its regulations “‘by narrowing the scope of the exclusion for birds to only those birds bred for use in research.'” (Id. ¶ 35 (quoting 69 Fed. Reg. 31, 513).) Thereafter, the USDA stated that it intended to promulgate bird-specific standards, recognizing that the general regulatory standards that it used for other animals would not be “appropriate or adequate to provide for the humane handling, care, treatment, and transportation of birds.” (Id. ¶¶ 38, 40 (quoting 69 Fed. Reg. 31, 539).) To date, however, the USDA has not proposed, much less enacted, bird-specific regulations. (Id. ¶ 42.)

         ARDF's Complaint asserts a single cause of action for breach of contract under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). It essentially alleges that Defendants breached the Stipulation of Dismissal by failing to promulgate bird-specific regulations. The Complaint seeks less than $10, 000 in money damages as well as a “remand to . . . the USDA for relief that is incident of and collateral to the money judgment” and “with such direction as it may deem proper and just.” (Id. at 18 ¶¶ 2-3 (citing 28 U.S.C. § 1491(a)(2)).) Alternatively, it asserts that it “seeks a court order directing immediate compliance with the [Stipulation of Dismissal].” (Id. at 2 ¶ 5, and 18 ¶ 2.)


         A motion to dismiss for lack of subject matter jurisdiction brought pursuant to Rule 12(b)(1) “may be treated as either a facial or factual challenge to the court's subject matter jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Here, Defendants bring a facial attack. “A facial attack, as the adjective indicates, is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court . . . .” Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). “Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint.” Id. (citing Mortensen, 549 F.2d at 889-92). As such, “a facial attack ‘contests the sufficiency of the pleadings.'” Id. (quoting In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)).

         “In reviewing a facial attack, ‘the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.'” Id. (quoting In re Schering Plough Corp., 678 F.3d at 243). “Thus, a facial attack calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.” Id. (citing In re Schering Plough Corp., 678 F.3d at 243).


         Defendants move to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). They argue, inter alia, that we lack jurisdiction under the Little Tucker Act, reasoning that the Act does not waive the government's sovereign immunity with respect to ARDF's claim for breach of the Stipulation of Dismissal, because the Stipulation is a contract that the government entered into in its sovereign capacity and that does not unmistakably provide for monetary damages upon breach.

         Under principles of sovereign immunity, the federal government is immune from suit except insofar as it consents to be sued. Komlo v. United States, 657 F. App'x 85, 87 (3d Cir. 2016) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)). Consequently, “federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to ...

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