                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      DEC 7 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 ANIMAL LEGAL DEFENSE FUND, a                     No. 13-55868
 non-profit corporation; et al.,
                                                  D.C. No. 2:12-cv-04028-ODW-
              Plaintiffs - Appellants,            PJW

    v.
                                                  MEMORANDUM *
 UNITED STATES DEPARTMENT OF
 AGRICULTURE; et al.,

              Defendants - Appellees.

                     Appeal from the United States District Court
                        for the Central District of California
                     Otis D. Wright II, District Judge, Presiding

                       Argued and Submitted November 4, 2015
                        University of California, Los Angeles

Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA,**
District Judge.

         This appeal arises from the United States Food Safety and Inspection

Service’s (“FSIS”) denial of a petition for rulemaking aimed at banning foie gras


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Vince G. Chhabria, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
produced from the livers of force-fed poultry. After the petition for rulemaking

was denied, several nonprofit organizations and individual consumers

(collectively, “Plaintiffs”), three of whom had authored the administrative petition,

filed suit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A),

seeking to set aside the denial as arbitrary, capricious, and an abuse of discretion.

The district court dismissed the action sua sponte upon finding FSIS’s denial of the

petition to be substantively equivalent to a non-enforcement decision committed to

the agency’s discretion by law and therefore unreviewable under 5 U.S.C.

§ 701(a)(2).

      We review de novo the district court’s decision to dismiss Plaintiffs’

complaint for lack of subject-matter jurisdiction under Federal Rule of Civil

Procedure 12(h)(3), Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082,

1086 (9th Cir. 2014), and we reverse and remand for further proceedings.

      Individuals aggrieved by final agency action are entitled to judicial review

thereof under the APA, absent two “narrow circumstances[:]” (1) where a statute

precludes judicial review, 5 U.S.C. § 701(a)(1), and (2) where “agency action is

committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). Pinnacle Armor,

Inc. v. United States, 648 F.3d 708, 718-19 (9th Cir. 2011). The Supreme Court

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has interpreted the second of these exceptions to encompass only those unusual

circumstances in which a statute is so broadly drawn that there is functionally no

law for a reviewing court to apply in assessing the propriety of the agency’s

decision. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971),

abrogated in part on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

Agency decisions not to take enforcement actions constitute one category of

agency actions that fall within this narrow exception. Heckler v. Chaney, 470

U.S. 821, 828-32 (1985). By contrast, agency decisions not to initiate rulemaking

retain the ordinary presumption of reviewability. Massachusetts v. EPA, 549 U.S.

497, 527-28 (2007).

      The district court erred in determining that FSIS’s denial was substantively

akin to an agency decision not to take an enforcement action. As opposed to

enforcement actions, which are typically focused on past breaches of existing laws

and regulations, the requested foie gras rules would have only future effect. See 5

U.S.C. § 551(4) (defining a “rule” as an “agency statement of general or particular

applicability and future effect”) (emphasis added). As in Massachusetts v. EPA,

the decision whether to promulgate a new rule turned in significant part on the

agency’s interpretation of a statutory term—here, the term “adulterated” as used in

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the Poultry Products Inspection Act (“PPIA”), 21 U.S.C. §§ 451-472. See

Massachusetts, 549 U.S. at 527. FSIS’s denial was therefore premised on

questions of statutory construction, which are a quintessential subject of judicial

review. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

843 n.9 (1984) (“The judiciary is the final authority on issues of statutory

construction.”). FSIS’s denial was not based on its evaluation of resource

constraints or institutional priorities, which are the hallmark of Heckler-type

enforcement decisions. Cf. Heckler, 470 U.S. at 831-32.

      As a general matter, FSIS’s decision does not implicate the concerns

underlying § 701(a)(2)’s preclusion of judicial review for wholly discretionary

decisions. In determining whether judicial review is precluded because there is no

law to apply, this court considers “the language of the statute and whether the

general purposes of the statute would be endangered by judicial review.”

Pinnacle Armor, 648 F.3d at 719 (quoting Cty. of Esmerelda v. Dep’t of Energy,

925 F.2d 1216, 1218 (9th Cir. 1991)). Here, nothing in the PPIA suggests that the

purpose of the statute would be frustrated were a court to evaluate FSIS’s decision.

To the contrary, the statute specially authorizes FSIS to promulgate regulations to

“protect the health and welfare of consumers,” 21 U.S.C. § 451, which is what the

                                          4
petition purports to accomplish. Further, the statute itself provides the standard

against which FSIS can and did evaluate the petitioners’ request—a standard that

proscribes commerce in “adulterated” poultry products. See 21 U.S.C. §§ 452,

453(g)(3), 460(d). Where, as here, there are judicially manageable standards, the

discretion granted to the agency to render technical conclusions does not shield its

decisions from judicial review; rather, it informs the highly deferential standard of

review that ultimately applies to evaluating the agency’s decision on the merits.

See Heckler, 470 U.S. at 830 (explaining that the construction of § 701(a)(2) to

preclude review only where “no judicially manageable standards are available”

“avoids conflict with the ‘abuse of discretion’ standard of review in § 706”); N.

Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir.

2011) (“A court generally must be ‘at its most deferential’ when reviewing

scientific judgments and technical analyses within the agency’s expertise.”)

(quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103

(1983)).

      Because we determine that the district court erred in finding FSIS’s denial of

the petition to be unreviewable, we reverse its decision dismissing the action under

Heckler. Rather than defend the district court’s dismissal on Heckler grounds,

                                          5
Defendants contend that all Plaintiffs lack Article III standing. The district court

did not consider standing, so we remand to the district court to evaluate those

arguments in the first instance. Given that the parties have already filed summary

judgment motions, the standing inquiry on remand will likely require considering

the evidentiary support for Plaintiffs’ standing allegations. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992).

      Defendants additionally argue that the organizational Plaintiffs lack

prudential standing because they fall outside the zone of interests of the PPIA.

After briefing in this case was completed, the Supreme Court in Lexmark

International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386-88

(2014), clarified that the zone-of-interests test is not a jurisdictional inquiry. See

id. at 1387 (clarifying that “‘prudential standing is a misnomer’ as applied to the

zone-of-interests analysis,” which asks the statutory question whether “a

legislatively conferred cause of action encompasses a particular plaintiff’s claim”)

(quoting Ass’n of Battery Recyclers v. EPA, 716 F.3d 667, 675-76 (D.C. Cir. 2013)

(Silberman, J., concurring)); Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d

1147, 1156 (9th Cir. 2015). As such, the zone-of-interests question, which goes to

the merits of the organizational Plaintiffs’ claim, cannot be addressed unless the

                                           6
court is satisfied that those Plaintiffs have Article III standing. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94-102 (1998).

      This panel retains jurisdiction over any future appeal in this matter.

      REVERSED and REMANDED.




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                                                                          FILED
                                                                            DEC 7 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


Animal Legal Defense Fund v. U.S. Department of Agriculture, No. 13-55868


CHHABRIA, District Judge, concurring:


      I concur in the majority’s disposition. I write separately to say a few words

about the organizational plaintiffs’ burden to establish Article III standing on

remand.

      The plaintiffs seem to be under the impression that circuit precedent allows

an organization to establish injury, for purposes of Article III standing, whenever

the organization has made a choice to spend money to counteract challenged

conduct germane to its mission – money that the organization would otherwise

choose to spend in other ways. Perhaps the plaintiffs are right that the law is so

lenient. On the other hand, perhaps circuit precedent could be interpreted to

require an organizational plaintiff to show that the organization itself “would have

suffered some other injury if it had not diverted resources to counteracting the

problem.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013). In

other words, even under current precedent it might not be enough merely to choose

to divert resources: current precedent might be understood to require the

organization to show that it was “forced” to divert resources to avoid or counteract

                                          1
an injury to its own ability to function. See Comite de Jornaleros de Redondo

Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en banc).

Moreover, even if current law regarding organizational standing is as lenient as the

plaintiffs seem to think, it may be necessary to revisit the law. See People for the

Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1099-1106

(D.C. Cir. 2015) (Millett, J., dubitante). The organizational plaintiffs may

therefore wish to consider, on remand, whether they can present evidence of injury

beyond the fact that they have chosen to spend money opposing foie gras rather

than spending that money on some other issue.




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