Doris Day Animal League vs. U.S. Department of Agriculture

United States Court of Appeals


Argued November 4, 2002 Decided January 14, 2003

No. 01-5351

Doris Day Animal League, et al., Appellees


Ann M. Veneman, in her official capacity as Secretary, United States Department of Agriculture, et al., Appellants

Appeal from the United States District Court for the District of Columbia (00cv01057)

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, and Michael Jay Singer, Attorney, U. S. Department of Justice.

Christine M. Cooper was on the brief for amicus curiae American Kennel Club, Inc., in support of appellants.

Andrew C. Kimbrell, pro hac vice, argued the cause for appellees. Joseph Mendelson III was on the brief.

Before: Randolph and Rogers, Circuit Judges, and Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Hundreds of thousands of dog breeders throughout the United States raise and sell puppies from their homes. The Animal Welfare Act requires certain animal “dealers” to be licensed and to submit to inspections. The Act, which is administered by the Department of Agricul- ture, exempts “retail pet stores” from these requirements. The Secretary defines “retail pet store” as “any outlet where only the following animals are sold or offered for sale, at retail for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and coldblooded spe- cies.” 9 C.F.R. s 1.1. The effect of this regulation is to exempt breeders who sell dogs as pets from their residences. The issue is whether the regulation is valid.

Doris Day Animal League, a membership organization, filed a rulemaking petition with the Agriculture Department, urging a change in the regulatory definition of “retail pet store” so that residential operations would not be exempted. The Secretary published the petition in the Federal Register (62 Fed. Reg. 14,044 (Mar. 25, 1997)) and received more than 36,000 comments. When the Secretary announced that he would retain the definition, and stated the reasons why, 64 Fed. Reg. 38,546 (July 19, 1999), Doris Day Animal League and other organizations and individuals concerned about the mistreatment of dogs brought this action for judicial review.

The Animal Welfare Act, 7 U.S.C. s 2131 et seq., seeks to insure the humane treatment of dogs (and other animals) raised and sold at wholesale and retail for research, for exhibitions, for hunting, to serve as guard dogs, and to be pets. Id. s 2131(1). Animal dealers must obtain licenses, they must comply with standards governing the handling, care, treatment, and transportation of the animals, and their

facilities may be inspected for compliance. See id. ss 2133, 2143, 2146(a). The Act defines “dealer” to exclude “a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer.” Id. s 2132(f)(i). The Act does not define “retail pet store.” Pursuant to rulemaking authority in 7 U.S.C. s 2151, the Secretary pro- mulgated the regulation, quoted above, defining “retail pet store.” The regulation’s basic definition of “retail pet store” to mean “any outlet,” without distinguishing homes from traditional business locations, dates back to 1971. See 36 Fed. Reg. 24,919 (Dec. 24, 1971) (s 1.1(t) of the regulations: ” ‘Retail pet store’ means any retail outlet where animals are sold only as pets at retail.”).

The district court viewed the meaning of “retail pet store” as plainly not including one who sells dogs for use as pets from his residence, and therefore held the regulation invalid. Doris Day Animal League v. Veneman, No. 00-1057, mem. op. at 15 (D.D.C. July 30, 2001). The court relied on the specific exemptions in the definition of “dealer” in 7 U.S.C. s 2132(f) and the licensing exemption of s 2133.

There is no need to repeat the standards for reviewing an agency’s interpretation of a statute it alone administers. See Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 75-77 (D.C. Cir. 1999). The question is what “retail pet store” in s 2132(f)(i) means, or more precisely, what Congress intended it to mean. Those who sell dogs as pets to consumers from their residences are selling pets at retail. But is a residence a “store”? One usually thinks of a store as a business open to the public and engaged in the sale of goods. But not all stores are open to the public and not all stores are located in shopping malls or other typical business locations. If a homeowner raised dogs; set up a separate place on his property – say, for instance, a small building; installed a counter and a cash register; displayed leashes, collars, and other dog paraphernalia for sale; and advertised the sale of puppies at his address, it would not be much of a stretch to view this too as a store. The local zoning authority might also view the matter that way.

The government cites a dictionary to show that treating residences as “retail pet stores” is possible. One definition of “store” is “a business establishment where goods are kept for retail sale.” Webster’s Third New International Dictionary 2252 (1986). But what is a “business” and what is an “establishment”? A “business” is a “commercial or mercan- tile activity customarily engaged in as a means of livelihood,” id. at 302, and an “establishment” is a “more or less fixed and usu. sizable place of business or residence together with all the things that are an essential part of it.” Id. at 778. Webster’s lexicographers thus might say that because a residence can be a “business establishment,” a residence can be viewed as a “retail pet store” if dogs are sold there. Those at Black’s Law Dictionary (7th ed. 1999), would get to the same conclusion by a more direct route. Black’s defines “store” as a “place where goods are deposited to be pur- chased or sold.” Id. at 1432. Residences are of course places and dogs can be considered “goods.” Still, we do not pretend these dictionaries, or any others, provide a complete refuta- tion of plaintiffs’ contention that the so-called plain meaning of “retail pet store” excludes residences, or that the opposite is what Congress clearly had in mind. Whatever the printed dictionaries say, we cannot be sure what was in the mental dictionaries of the members of Congress. And so we will move on.

Both sides rely on statements from the legislative history of the Animal Welfare Act. The government and amicus American Kennel Club, Inc., say the legislative history re- veals that the emphasis of the Act was on regulation of wholesale, not retail, sellers of animals. Plaintiffs point to other statements suggesting that the exemption for retail pet stores should be construed narrowly. In the end we can find no solid evidence showing that Congress came to any conclu- sion about the issue we face, one way or the other.

Plaintiffs’ more serious claim, one that convinced the dis- trict court, rests on the structure of 7 U.S.C. s 2132(f), the provision defining “dealer.” The definition of “dealer” has two exceptions. The first we have already mentioned: it provides that “dealer” does not include a “retail pet store”

(unless the animals are sold to a research facility, exhibitor, or dealer). Id. s 2132(f)(i). The second excludes from the definition of dealer “any person who does not sell, or negoti- ate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year.” Id. s 2132(f)(ii). One of plaintiffs’ arguments is that by not giving sellers of dogs a de minimis ($500) exemption in subsection (ii), Con- gress meant to make sure that those who sold dogs from their homes remained covered by the Act no matter how much income they generated. But the argument begs the question. If subsection (i) already gave an exemption to residential sellers of dogs as pets (because they were “retail pet stores”), there was no need to give them a de minimis exemption in subsection (ii). Plaintiffs also point out that if Congress had wanted to exempt individuals selling dogs from their homes, it could easily have written subsection (i) to cover “any person” rather than “retail pet store,” as it did in subsection (ii). The argument is weak. It may be countered by arguing that if Congress wanted to exclude residential sellers from the definition of retail pet store it easily could have said as much. The argument is, in any event, one that can be made in any case in which there is a fair dispute about the meaning of a statute. Often it is put this way: Congress knows how to say thus and so, and would have written thus and so if that is what it really intended. This proves very little. Congress almost always could write a provision in a way more clearly favoring one side – or the other – in a dispute over the interpretation of a statute. Its failure to speak with clarity signifies only that there is room for disagreement about the statute’s meaning.

Plaintiffs also direct us to the licensing exemption con- tained in s 2133. The relevant portion reads:

any retail pet store or other person who derives less than a substantial portion of his income (as deter- mined by the Secretary) from the breeding and raising of dogs or cats on his own premises and sells

any such dog or cat to a dealer or research facility shall not be required to obtain a license as a deal- er….

The argument is that s 2133 reflects two separate and dis- tinct licensing exemptions for dog sellers: “retail pet stores” and “other persons.” The second category, plaintiffs contin- ue, “does not apply to persons who sell dogs or cats to consumers for use as pets from their own premises.” There- fore Congress intended to keep the categories separate, while the regulatory definition of “retail pet store” lumps them together.

We will assume that the “other person” clause applies only to those persons who are selling dogs and cats to dealers and research facilities, rather than to consumers who want the animals for pets. Even so, we cannot see how this helps plaintiffs’ contention that the plain meaning of “retail pet store” does not include residences. Plaintiffs read the qualifi- cation – breeding and raising dogs and cats, on the person’s premises, as a result of which he does not derive a substantial part of his income, and selling to dealers and research facilities – to refer only to “other person,” not to “retail pet store.” Because of the disjunctive “or” in the passage, Dep’t of Hous. & Urban Dev. v. Rucker, 122 S. Ct. 1230, 1234 (2002), supports their interpretation. But even if plaintiffs are correct about what s 2133 means, which we need not decide, those “other” persons are not within the Secretary’s definition of “retail pet store” for the obvious reason that they are not selling at retail. Under the regulation, residential retail sellers, like traditional pet stores, are exempt from licensing regardless of whether they make a substantial part of their income from this activity. If the Secretary’s inter- pretation of “retail pet store” is correct, it would have been senseless for Congress to add retail residential sellers in the “other person” clause of s 2133; that would have created a redundancy, or an overlap between the two classes exempt from licensing. Given the regulation, a residential seller may sell an unlimited number of dogs to the public as pets, but he may sell outside of retail channels only if his sales of dogs are less than a substantial portion of his income. The regulation

thus preserves both parts of s 2133, allowing each to operate in its sphere.

While the regulation’s definition of “retail pet store” does not exactly leap from the page, there is enough play in the language of the Act to preclude us from saying that Congress has spoken to the issue with clarity. From what we can make out, Congress has paid little attention to the question posed in this case. Still, it is true that in the years since passage of the Act and the Secretary’s adoption of the regulation, Congress has not altered the regulatory definition of “retail pet store” although it has amended the act three times. One line of Supreme Court cases holds that “when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s inter- pretation is persuasive evidence that the interpretation is the one intended by Congress.’ ” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974)). The quotation fits this case perfectly. Compare Alexander v. Sandoval, 532 U.S. 275, 292 (2001), refusing to find that Congress, through silence, had endorsed a judicial interpretation of a statute. But see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-82 (1982).

This leaves the argument that the Secretary’s resolution of the meaning of “retail pet store” is not a reasonable one. In our judgment the Secretary’s decision and policy statement declining to modify the regulation is supported with reasoning that is persuasive and faithful to the Act’s purpose of protect- ing animal welfare. See generally Licensing Requirements for Dogs and Cats, 64 Fed. Reg. 38,546 (July 19, 1999).

The Secretary spelled out several policy considerations thus:

Second, we have determined that retail dealers, especially those who sell from their homes, are already subject to a degree of self-regulation and oversight by persons who purchase animals from the retailers’ homes, as well as by breed and registry

organizations. Breed and registry organizations, such as kennel clubs, require their registrants to meet certain guidelines related to the health and genetic makeup of animals bred and to the education of the registrants. These organizations also monitor the conditions under which animals are bred and raised. Wholesale dealers typically do not have this type of oversight from the public.


Fourth, retail outlets are not unregulated. There are already many State and local laws and ordi- nances in place to monitor and respond to allega- tions of inhumane treatment of and inadequate hous- ing for animals owned by private retail dealers. If we were to regulate these dealers along with State and local officials, it would clearly not be the most efficient use of our resources.

Id. at 38,547. While plaintiffs are unhappy about the degree of self-regulation and the amount of oversight from local humane societies, kennel clubs, and state agencies, the Secre- tary, applying his expertise, was entitled to rely on these factors in making his judgment about the need for federal regulation. And he was entitled also to differentiate retail sales from wholesale sales of dogs on the basis that “whole- sale dealers typically do not have this type of oversight from the public.” Id.

The Secretary also declined to amend the definition on the ground that the best interest of animal welfare is supported by allowing the Department to “concentrate [its] resources on those facilities that present the greatest risk of noncompli- ance with the regulations.” Id. The Department has decided to focus on wholesale dealers, where its resources are likely to yield the greatest benefit. This is a reasonable choice, keeping in mind the purpose of the Act to promote animal welfare. See Envirocare, 194 F.3d at 77-78. It was also within the authority delegated to him by Congress for the Secretary to decline to amend the definition in light of the potential invasions of privacy that would result if federal inspectors began enforcing “cleaning, sanitation, handling,

and other regulatory requirements in private homes.” 64 Fed. Reg. at 38,547.

Taken together, the Secretary’s decision to retain the regu- latory definition of “retail pet store” reflects the judgment of the agency entrusted with administering the Animal Welfare Act to fulfill the purpose of the Act as effectively as possible. For the reasons given, the regulation is a permissible con- struction of the statutory term “retail pet store.”

The order of the district court granting partial summary judgment to the plaintiffs and declaring the regulation invalid is therefore


San Francisco Supervisors Vote for Pet "Owner-Guardian" Language

The San Francisco Board of Supervisors voted this week to replace the term “owner” with “-owner-guardian” in all instances where San Francisco’s municipal code mentions pets.

Attorneys for San Francisco maintain the change will have no appreciable legal effect, while critics of the proposal claim that it could lessen individual liability for the actions of pets since “guardian” implies a less delineated relationship than “owner” does.

Elliott Katz of In Defense of Animals, which has been pushing for this sort of terminology change, told the San Francisco Chronicle, “Being a guardian of an animal companion signifies a higher level of responsibility, respect and care to the animals we share our lives with.”

In Defense of Animals, meanwhile, is featuring a Bird Guardian program on its web site this month, which urges the public to never “buy” birds, but rather to “adopt” them (presumably through any number of bird adoption agencies).


Jockstrip: The world as we know it. Ellen Beck, United Press Intrenational, January 15, 2003.

Pets in California Must Be Sold with Instruction Manuals

In a new law that took effect January 1st, pet stores in California must supply buyers with instructions on the proper care of animals they sell or else face up to a $250 fine per incident.

The law was opposed by pet groups such as the Pet Industry Joint Advisory Council and supported by animal rights groups such as the Doris Day Animal League.

Pet store owners in California say they agree with the intention of the law, but are concerned that animal rights activists will push for absurd enforcement that will bog them down in extensive paperwork.

For example, pet store owner Shannon Jimenez told the Pasadena Star-News that her store stocks over 300 species of fish. Coming up with a one-size fits all set of instructions for care of fish quickly becomes impossible (since much depends on what other fish a prospective buyer already has in his or her tank). Pet store owners fear that animal rights activists will try to use the law in situations such as this to push their agenda.

Marshall Meyers of PIJAC said,

I’m sure the intention of the law was good, but it could be used as a harassment tool, if someone wanted to harass a store.

And if the animal rights movement is effective at anything, it is harassing those who disagree with them about animals.


Sate law requires care instructions. Terry Webster, Pasadena Star-News, January 1, 2003.

Wisconsin Town Considers Changing Animal "Guardian" Law

Back in March the Menomonee Falls Village Board approve a change to its ordinances that eliminated the term “owner” from animal-related ordinances and replaced it with the term “guardian.” But now, the Village Board is having second thoughts after hearing from its attorney that the change could have unforseen legal consequences.

According to the Milwaukee Journal Sentinel,

Village Attorney Michael Morse said Monday that, under current common law, an animal is property and that guardian is a legal term that refers to people.

“I couldn’t guarantee that some clever lawyer wouldn’t apply aspects of the term guardian to a situation involving pets,” he said. “I don’t believe the trustees ever intended those consequences.”

The board is apparently considering “guardian/owner” which would seem to simply further muddy up the legal waters.


Falls might change pet ‘guardian’ terminology. Kay Nolan, Milwaukee Journal Sentinel, October 22, 2002.

PETA Protests Animal Planet Show Featuring Breeders

People for the Ethical Treatment of Animals is urging animal rights activists to protest an upcoming new series on Animal Planet, “That’s My Baby.” The show will focus on baby animals and has been soliciting animal breeders in some parts of the country for stories. According to a press release,

The proposed TV series… will undoubtedly lead people to buy or breed animals, at the expense of the millions of homeless animals who are euthanized in shelters every year. Instead of glorifying irresponsible breeding, Animal Planet should discourage breeding at all levels. Please don’t let unfortunate dogs and cats die for Animal Planet’s TV ratings.

If the focus of the show is going to be on small breeders there is plenty of evidence that animals purchased from such breeders are far less likely to end up abandoned than are animals obtained in other ways (such as from a retail outlet or from a friend or neighbor trying to unload an unwanted animal).


Animal Planet Irresponsibly Promotes Breeding While Millions of Homeless Animals Die. People for the Ethical Treatment of Animals, Press Release, June 2001.

Newkirk: "I openly hope" foot and mouth epidemic hits the United States

Quite a few people e-mailed me with links to an interview with People for the Ethical Treatment of AnimalsIngrid Newkirk in which Newkirk was asked about the foot and mouth epidemic that has struck Europe. Newkirk told a reporter from Reuters,

If that hideousness came here, it wouldn’t be any more hideous for the animals — they are all bound for a ghastly death anyway. But it would wake up consumers…I openly hope that it comes here. It will bring economic harm only for those who profit from giving people heart attacks and giving animals a concentration camp-like existence. It would be good for animals, good for human health and good for the environment.

Such comments will, of course, help fuel speculation that animal rights extremists in Europe started the whole epidemic in the first place (speculation for which there is, at the moment, no evidence).

The other interesting part of the Reuters report was its description of PETA’s offices,

The PETA building looks and feels much like any corporate headquarters except for the dozens of dogs wandering around and sitting on special mattresses. Employees are encouraged to bring their pets to work. Many also take part in civil disobedience campaigns and boast long arrest records.

Odd from a group that maintains pets are a manmade abomination.


Animal rights leader hopes disease comes to U.S.. Alan Eisner, Reuters, April 2, 2001.