United States District Court, E.D. Pennsylvania
R. Padova, J.
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.
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.
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).)
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.)
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.)
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 ¶
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.
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).
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.
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 ...