                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 ANIMAL LEGAL DEFENSE FUND, INC.,

                        Plaintiff,

                        v.                         Case No. 17-cv-2252 (CRC)

 SONNY PERDUE, Secretary of
 Agriculture, and UNITED STATES
 DEPARTMENT OF AGRICULTURE,

                        Defendants.

                                     MEMORANDUM OPINION

       This Court is asked to adjudicate for the second time whether the Department of

Agriculture (“USDA”) properly denied a request by the Animal Legal Defense Fund (“ALDF”)

to intervene in administrative proceedings against the Cricket Hollow Zoo. Last year, after

ALDF challenged the first denial, the Court found that USDA’s Judicial Officer had incorrectly

applied the relevant law, vacated his decision, and remanded the case to the agency for

reconsideration. See ALDF v. Vilsack, 237 F. Supp. 3d 15 (D.D.C. 2017). Upon

reconsideration, the Judicial Officer once again denied ALDF’s request to intervene, prompting

this related case in which ALDF contends that he again acted arbitrarily, capriciously, and

contrary to law.

       ALDF now moves for summary judgment and asks the Court to order the Judicial Officer

to permit its intervention. USDA, for its part, moves to dismiss the case as moot or, in the

alternative, seeks summary judgment in its favor. The Court concludes that because it could

grant ALDF an effective remedy, the case is not moot. Accordingly, the Court will deny

USDA’s motion to dismiss. But the Court also finds that the Judicial Officer’s denial of ALDF’s
intervention applied the correct legal standards and did so in a reasonable way. Therefore, the

Court will grant USDA’s motion for summary judgment and deny ALDF’s.

 I.    Background

       The Court’s decision in the earlier iteration of this dispute details many of the relevant

facts underlying USDA’s enforcement action and ALDF’s desired intervention. See Vilsack,

237 F. Supp. 3d at 19–20. The Court summarizes here.

       The Animal Welfare Act of 1966 (“AWA”), 7 U.S.C. § 2131 et seq., and its

implementing regulations establish minimum standards of care and treatment for animals

exhibited to the public. The Animal and Plant Health Inspection Service (“APHIS”), a

component of USDA, licenses animal exhibitors under the Act and enforces its care and

treatment standards.

       Pursuant to that authority, APHIS initiated an administrative enforcement action against

Cricket Hollow Zoo, a family-owned menagerie in Manchester, Iowa with a history of non-

compliance with the AWA’s care and treatment standards. ALDF, which had previously sued

Cricket Hollow directly and had sued USDA for its continued renewal of Cricket Hollow’s

license, sought to intervene in the enforcement proceeding to advocate for revocation of the

license and humane relocation of Cricket Hollow’s animals (“relocation remedy”). The

presiding administrative law judge (“ALJ”) denied ALDF’s motion and the Judicial Officer

upheld that decision on appeal.

       ALDF sued and this Court found that the Judicial Officer had acted arbitrarily and

capriciously in denying intervention under § 555(b) of the Administrative Procedure Act

(“APA”), which entitles “an interested person” to appear before an agency proceeding “[s]o far

as the orderly conduct of public business permits[.]” 5 U.S.C. § 555(b). The Court held that the



                                                 2
Judicial Officer had failed to properly consider ALDF’s stated interests in intervention and

remanded the case to the Judicial Officer to reconsider ALDF’s request. Vilsack, 237 F. Supp.

3d at 24. In so doing, the Court noted that courts “have for the most part permitted denials [of

intervention] . . . when, for example, other parties to the proceeding adequately represent the

would-be intervenor’s viewpoint or intervention would broaden unduly the issues considered,

obstruct or overburden the proceedings, or fail to assist the agency’s decisionmaking.” Id. at 22

(alteration in original) (quoting Nichols v. Bd. of Trustees of Asbestos Workers Local 24

Pension Plan, 835 F. 2d 881, 897 (D.C. Cir. 1987)).

       On remand, the Judicial Officer again denied ALDF’s intervention, in part because he

concluded that its arguments for a relocation remedy would not be relevant or useful to the ALJ.

Administrative Record (“A.R.”) 696–705. ALDF again sued, contending that this determination

failed to properly consider the ways in which the ALJ’s enforcement powers could yield the

relocation remedy. In the interim, the ALJ issued his decision, documenting significant AWA

violations by Cricket Hollow, revoking its license, and imposing a civil monetary penalty. Id. at

708–887. Cricket Hollow administratively appealed that decision, and the appeal is pending. Id.

at 894–95.

 II.   Legal Standards

       A. Motion to Dismiss

       “Federal courts lack jurisdiction to decide moot cases because their constitutional

authority extends only to actual cases or controversies.” Conservation Force, Inc. v. Jewell, 733

F. 3d 1200, 1204 (D.C. Cir. 2013) (quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70

(1983)). A case becomes moot “when the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome.” Larsen v. U.S. Navy, 525 F.3d 1, 3–4 (D.C. Cir.



                                                 3
2008) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). A party may lack a

legally cognizable interest in the outcome “when, among other things, the court can provide no

effective remedy because a party has already obtained all the relief it has sought,” Jewell, 733

F.3d at 1204 (internal quotation marks and punctuation omitted), or “when intervening events

make it impossible to grant the prevailing party effective relief,” Lemon v. Geren, 514 F.3d

1312, 1315 (D.C. Cir. 2008) (internal quotation marks omitted).

       Because mootness deprives the court of subject-matter jurisdiction, a motion to dismiss

for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1). See DL v.

District of Columbia, 187 F. Supp. 3d 1, 5 (D.D.C. 2016). In assessing a 12(b)(1) motion, the

Court must “treat the complaint’s factual allegations as true and afford the plaintiff the benefit of

all inferences that can be derived from the facts alleged.” Jeong Seon Han v. Lynch, 223 F.

Supp. 3d 95, 103 (D.D.C. 2016) (internal quotation marks omitted). Moreover, “the Court ‘may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

of jurisdiction.’” Delta Air Lines, Inc. v. Export-Import Bank, 85 F. Supp. 3d 250, 259 (D.D.C.

2015) (quoting Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)).

       B. Summary Judgment

       Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Summary judgment is the proper stage for determining whether, as a matter of law, an

agency action complies with the APA and is supported by the administrative record. Richards v.

INS, 554 F.2d 1173, 1177 (D.C. Cir. 1977). The APA provides that “[t]he reviewing court shall

. . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the law[.]” 5 U.S.C. §



                                                  4
706(2)(A). Arbitrary and capricious review is “narrow,” Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971), and precludes the Court from “substitut[ing] its judgment

for that of the agency,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). Rather, the Court must determine whether the agency “examine[d]

the relevant data and articulate[d] a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.” Id. (internal quotation marks

omitted). Even if the agency did not fully explain its decision, the Court may uphold it “if the

agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight

System, Inc., 419 U.S. 281, 286 (1974). The Court’s review is limited to the administrative

record, Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003),

and the party challenging an agency’s action bears the burden of proof, City of Olmsted Falls v.

FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).

 III. Analysis

       A. USDA’s Motion to Dismiss

       USDA moves to dismiss the case as moot on the theory that APHIS has already obtained

all relief to which ALDF would be legally entitled in the enforcement action. See Defs.’ Mot.

Dismiss or Mot. Summ. J. (“Defs.’ Mot.”) at 10–13. ALDF sought to intervene to achieve two

goals: revocation of Cricket Hollow Zoo’s license and relocation of its animals. A.R. 588–89.

USDA notes that the ALJ ordered the revocation—a decision currently on administrative appeal.

USDA contends that, notwithstanding ALDF’s desire to advocate for the relocation remedy, the

Judicial Officer concluded correctly that the AWA does not allow for such a remedy and thus,

there is no additional legally authorized relief that ALDF could seek upon intervention.




                                                  5
       USDA’s motion to dismiss conflates what ALDF asks of this Court with what ALDF

hopes to achieve in the underlying enforcement action. The crux of ALDF’s claim here is not

that it was impermissibly denied the relocation remedy, but that it was impermissibly denied the

opportunity to advocate for that remedy. Its request of this Court is to restore that opportunity,

so that ALDF can “participate in future hearings, motion practice, appeals, and settlement

process with the right to petition to reopen the proceedings in the USDA’s administrative

proceeding against Cricket Hollow[.]” Compl. at 15. In short, ALDF interprets the AWA

differently than USDA does, and it seeks to advance that interpretation in the administrative

proceedings.

       Because what ALDF seeks is the chance to advance its understanding of the law, the

Court could order an effective remedy. If the Court were to order the Judicial Officer to permit

intervention, ALDF would immediately have the right to partake in the proceedings and make its

case regarding the AWA. For example, ALDF could appeal those aspects of the ALJ’s

enforcement order with which it disagrees, see 7 C.F.R. § 1.145, presumably focusing on the

remedial measures that it believes are appropriate. That argument may well be futile, as USDA

contends. But as the Court explained in its previous decision, § 555(b) is generally protective of

that type of opportunity so long as it does not burden the proceedings. See Vilsack, 237 F. Supp.

3d at 22 (“Because nearly every agency decision—including those made by the agency in

individual adjudications—implicates public policy, broad participation in agency proceedings

. . . is often necessary.”). Moreover, ALDF has indicated its desire to introduce evidence that it

might use to support an independent request for confiscation of the animals, see Pl.’s Mot.

Summ. J. at 21, which intervention might enable it to do, see 7 C.F.R. § 1.146; Compl. at 15.




                                                 6
       Moreover, even if ALDF’s relocation arguments are as futile as USDA contends, there is

still the possibility that its other stated goal in intervention—the revocation of Cricket Hollow’s

license—is reversed on appeal. A Court order that ALDF be allowed to intervene would ensure

its ability to protect that remedy on appeal or seek it again on potential remand. Cf. Alternative

Research & Dev. Found. v. Veneman 262 F.3d 406, 410 (D.C. Cir. 2001) (appellate review of

denied intervention-by-right is not mooted by stipulated dismissal of underlying case); see also

Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1511 n. 3 (11th Cir. 1996) (appeal from denial

of intervention not mooted by entry of judgment in underlying case). This remains a “live” case

in which the Court can grant an effective remedy. It will therefore deny USDA’s motion to

dismiss.

       B. The Parties’ Motions for Summary Judgment

       The parties have filed cross-motions for summary judgment. ALDF contends that the

Judicial Officer acted arbitrarily and capriciously in denying its intervention under § 555(b). Its

claim rests largely on its objection to the Judicial Officer’s conclusion that the ALJ lacked power

to grant a relocation remedy. See Pl.’s Mot. Summ. J. at 17–21. USDA counters that the

Judicial Officer’s denial of intervention survives scrutiny because he rationally interpreted the

ALJ’s enforcement powers. See Defs.’ Mot. 13–21. Because the parties’ dispute regarding

denial of intervention centers on the Judicial Officer’s interpretation of the ALJ’s powers, review

of the former requires an inquiry into the latter. The Court will first evaluate the Judicial

Officer’s interpretation of the law to inform its assessment of his denial under § 555(b).

               1. Scope of Enforcement Powers

       The Judicial Officer concluded that the AWA provides no basis for USDA, as part of an

enforcement proceeding, “to seize and relocate animals or to close a facility for violations.”



                                                  7
A.R. 702. The Court reviews with deference this interpretation of the ALJ’s statutory and

regulatory authority. Chevron USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984); Long Island Care

at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007); see also supra, Section II.B.

       The enforcement proceeding was conducted pursuant to 7 U.S.C. § 2149. A.R. 702. The

Judicial Officer interpreted § 2149 as authorizing the ALJ to impose only certain specified

sanctions—“limited to revocation or suspension of an [AWA] license, assessment of a civil

monetary penalty, and issuance of an order to cease and desist from future violations of the

[AWA] and the Regulations.” Id. On its face, the Judicial Officer’s depiction of the ALJ’s

authority appears rational: section 2149 does indeed enumerate license revocation, license

suspension, civil monetary assessment, and cease-and-desist orders as the penalties that USDA

may impose. 7 U.S.C. § 2149.

       ALDF insists, however, that the Judicial Officer interpreted the ALJ’s authority too

narrowly for two reasons. First, it contends that the ALJ has confiscation authority pursuant to §

2146(a), the AWA provision that authorizes USDA to investigate or inspect AWA licensees for

compliance. See Pl.’s Mot. Summ. J. at 18–19. That provision directs USDA to promulgate

regulations as “necessary to permit inspectors to confiscate . . . any animal found to be suffering”

due to violations of the AWA. 7 U.S.C. § 2146(a). The regulations, in turn, authorize an APHIS

official to confiscate and permanently relocate animals if temporary care provisions are

insufficient. 1 9 C.F.R. § 2.129. Responding to USDA’s rebuttal that § 2146(a) authority is

inapposite in a § 2149 enforcement proceeding, ALDF notes that: (1) § 2146(a) is a broad grant

of regulatory discretion that does not foreclose the delegation of confiscation authority to the




       1
         USDA disputes that an ALJ would qualify as an APHIS official in any event. See
Defs.’ Reply at 6.

                                                 8
ALJ; (2) in the Final Rule promulgating confiscation practices, USDA cited the full AWA—

rather than just § 2146(a)—as the relevant statutory authority; and (3) past § 2149 enforcement

proceedings have resulted in orders to cease and desist § 2146(a) violations. See Pl.’s Reply at

6–8.

       But these arguments are unavailing in the face of the deference to which the Judicial

Officer is entitled. At most, the first two arguments amount to the point that the Judicial Officer

could have reasonably interpreted the statute and regulations to authorize an ALJ to order a

relocation. Had the Judicial Officer reached that conclusion, ALDF’s arguments about the

breadth of the underlying statutory and regulatory provisions might sustain that decision. But an

argument that the statute or regulations do not foreclose one legal interpretation is not

tantamount to an argument that they require that interpretation. And ALDF’s third point—that

ALJs have, pursuant to § 2149, ordered licensees to cease and desist from § 2146(a) violations—

does not undermine the Judicial Officer’s interpretation. ALDF cites an order requiring a

licensee to cease and desist from preventing inspections as required by § 2146(a). Pl.’s Reply at

7–8. But it does not explain why that order to stop illegally preventing inspections—plainly

encompassed by § 2149’s authorized penalty of “an order that [a licensee found to have violated

the law] shall cease and desist from continuing such violation,” 7 U.S.C. § 2149—indicates that

USDA may exercise § 2146’s confiscation authority in § 2149 proceedings.

       ALDF also contends that § 2149’s cease-and-desist authority encompasses a relocation

remedy. 2 ALDF analogizes this authority to courts’ injunctive power, insisting that each

power’s scope is sufficiently broad to match whichever underlying violations it addresses. Pl.’s




       2
        USDA contends that ALDF failed to raise this argument at the administrative level, see
Defs.’ Mot. at 18, but the record indicates that it did, see, e.g., A.R. 187.

                                                 9
Mot. Summ. J. at 19–20. Accordingly, ALDF insists that when “a facility is systematically

unable and unwilling to provide adequate care to its animals, an ALJ can use this cease and

desist authority to order a facility to relocate animals to a facility that can provide adequate

care.” Id. at 20. But, while ALDF highlights language from cases to support its analogy, id. at

19–20, the cases themselves do not indicate that cease-and-desist power is as capacious as ALDF

argues. In NLRB v. Express Publishing Co., the Supreme Court limited the scope of the agency-

issued order and concluded that “[a]n appropriate order . . . would go no further than to restrain

respondent from any refusal to bargain and from any other acts . . . interfering” with the

collective-bargaining rights of respondents’ employees—in other words, a standard order to

cease and desist from future violations of law. 312 U.S. 426, 438 (1941). ALDF also cites

Federal Trade Commission v. Ruberoid Co., but that case noted the “special competence” and

discretion Congress afforded the Federal Trade Commission “to deal with problems in the

general sphere of competitive practices.” 343 U.S. 470, 473 (1952). Here, by contrast, ALDF

cites no authority to suggest equivalently broad powers for ALJs in USDA enforcement

proceedings. Cf. Brendsel v. Office of Fed. Hous. Enter. Oversight, 339 F. Supp. 2d 52, 64

(D.D.C. 2004) (“It is axiomatic that ‘administrative agencies are vested only with the authority

given to them by Congress.’” (quoting Gibas v. Saginaw Min. Co., 748 F.2d 1112, 1117 (6th Cir.

1984))).

       Passing references to some flexibility in cease-and-desist authority do not support the

idea that § 2149 cease-and-desist authority encompasses a relocation remedy, and they certainly

do not render arbitrary or capricious an interpretation that it does not. Again, ALDF’s arguments

about the scope of § 2149 power at best support the conclusion that an alternative interpretation




                                                  10
of the ALJ’s power would be reasonable, not that the Judicial Officer’s interpretation was

unreasonable. Because his decision was rational, it is entitled deference from the Court.

               2. Denial of Intervention

       Having concluded that the Judicial Officer rationally interpreted the ALJ’s powers, the

Court now assesses his denial of ALDF’s intervention request. In denying ALDF’s intervention,

the Judicial Officer considered the following factors, identified in the Court’s remand of his

initial decision, as relevant to the § 555(b) inquiry:

       (1) the nature of the contested issues in the agency proceeding; (2) the prospective
       intervenor’s precise interest in the agency proceeding; (3) the adequacy of
       representation of the prospective intervenor’s interest provided by existing parties
       to the agency proceeding; (4) the ability of the prospective intervenor to present
       relevant evidence and argument in the agency proceeding; (5) the extent to which
       the prospective intervenor would assist in agency decision making; (6) the burden
       that intervention would place on the agency proceeding; and (7) the effect of
       intervention on the agency’s mandate.

A.R. 698 (citing Vilsack, 237 F. Supp. 3d at 23.)

       The Judicial Officer concluded that neither party to the proceeding represented ALDF’s

interest and its intervention would not impair the agency’s mandate. Id. at 704. But he

nevertheless denied intervention because:

       (1) due to the limited nature of the proceeding and contested issues, ALDF’s
       appearance would not be useful; (2) ALDF is not able to present relevant
       evidence and argument; (3) ALDF is not able to assist the decision maker; and (4)
       ALDF’s intervention would delay the final disposition of [the] proceeding and
       increase the cost of [the] proceeding.

Id.

       ALDF’s objects to the Judicial Officer’s conclusion that its “input regarding humane

disposition of Cricket Hollow’s animals was ‘not relevant’ and ‘would not assist the decision

maker.’” Pl.’s Mot. Summ. J. at 17 (quoting A.R. 702–03). ALDF makes four arguments to this

effect. Its first two contend that the decision was “based on an erroneous interpretation of law”


                                                  11
because a relocation remedy is possible under either APHIS’s confiscation regulation or the

ALJ’s cease-and-desist authority pursuant to § 2149. Id. For the reasons discussed, supra

Section III.A, the Judicial Officer rationally interpreted the AWA and his decision is entitled

deference. And while ALDF objects to what it perceives as insufficient attention to some of its

theories regarding the ALJ’s enforcement powers, the Judicial Officer addressed and rejected in

sufficient detail its core claim that the law countenances a relocation remedy. Cf. Buckingham v.

Mabus, 772 F. Supp. 2d 295, 301 (D.D.C. 2011) (agency reasoning was sufficient under the APA

when it “adequately addressed the substance of the argument . . . , even though it did not in the

process enumerate every point made by [plaintiff] in support of that argument”).

       ALDF’s next two arguments amount to an insistence that, even if the Judicial Officer’s

interpretation of the ALJ’s formal powers were correct, his decision was nevertheless erroneous

because there are other avenues through which ALDF could have argued for the humane

disposition of animals. First, ALDF says, the ALJ “could at a bare minimum make specific

findings pertinent to the disposition of the animals” to justify an independent request for

confiscation. Pl.’s Mot. Summ. J. at 20–21. This contention goes less to ALDF’s ability to

present relevant argument and more to its ability to present relevant evidence that would form

the basis of these findings. And the Judicial Officer addressed that issue. He concluded that the

evidence ALDF could introduce would be either irrelevant or redundant to what was already in

the record. A.R. 700–01. Further, the Judicial Officer concluded that “the hearing would have

to be reopened if ALDF were to be allowed to present the evidence it seeks to introduce,”

thereby “increas[ing] the time necessary for the final disposition of th[e] proceeding and

increas[ing] [its] cost[.]” Id. at 704. These assessments are plainly supported by the record.

ALDF sought to introduce deposition testimony regarding Cricket Hollow’s ability to care for



                                                12
the animals in the future, while the proceeding dealt with past violations. Id. at 700. ALDF also

sought to introduce veterinary records and animal death certificates, but APHIS had already

introduced extensive veterinary-record evidence indicating AWA violations and the death

certificates themselves did not demonstrate additional failures to comply with the AWA,

inasmuch as an animal death is not necessarily an AWA violation. Id. at 701.

       Finally, ALDF maintains that the Judicial Officer erred in concluding that ALDF could

not provide relevant argument to assist the ALJ because of the possibility of a settlement. See

Pl.’s Mot. Summ. J. at 21–22. Specifically, it insists that intervention would enable it to

advocate for relocation of the animals during any potential settlement negotiations and reject any

proposed settlement that excluded relocation. Pl.’s Mot. Summ. J. at 21, 29–30. But the

possibility of settlement does not render the Judicial Officer’s decision arbitrary or capricious.

The operative question for the Judicial Officer was whether ALDF would assist in the ALJ’s

decisionmaking through relevant arguments. See Vilsack, 237 F. Supp. 3d at 24. To be sure, an

ALJ plays some role in the settlement process, see 7 C.F.R. § 1.138, but as ALDF itself notes,

under USDA’s Rules of Practice, an ALJ is generally obligated to approve a consent decision.

See id.; Pl.’s Mot. Summ. J. at 30. Accepting ALDF’s argument would dilute the “relevant

argument” inquiry beyond recognition. A prospective intervener will likely have something to

say about a potential settlement by virtue of being an “an interested person.” 5 U.S.C. § 555(b).

But that alone cannot satisfy the relevant-argument considerations of the distinct question of

whether an interested person’s intervention would impede “the orderly conduct of public

business.” Id. That question is tethered to the nature of the proceeding. Were it otherwise,

intervention rules applicable to targeted agency actions would be indistinguishable from those




                                                 13
governing rulemakings or licensing proceedings. As the Court has explained, that is not the case.

See Vilsack, 237 F. Supp. 3d at 23–24.

       In its Reply, ALDF contends that it “only need[ed] to show that its arguments promoting

humane disposition [were] colorable to prevail on its intervention request,” Pl.’s Reply at 6,

because a “proposed intervenor is not required to submit or prevail on full remedies briefing as

part of the motion to intervene,” id. at 3. Simply put, ALDF maintains that the Judicial Officer

approached this matter incorrectly by deciding that the ALJ lacked power to issue a relocation

remedy when the pertinent question was whether ALDF could, upon intervention, make a

colorable argument about the relocation remedy. But this elides that the Judicial Officer’s denial

was based on the conclusion that ALDF’s arguments were not colorable. In its attempts to

intervene, ALDF made clear its view that § 2146(a) authorizes ALJs to order relocation remedies

and highlighted this view as a basis for intervention. See, e.g., A.R. 589, 622, 691. It also

referenced cease-and-desist authority as another basis for this remedy. See, e.g., id. at 187. And

APHIS responded, devoting extensive space to rebutting ALDF’s views. Id. at 655. In other

words, ALDF had ample opportunity to preview the substance of its desired merits briefing and

did in fact signal its arguments. Nothing in § 555(b) prevents the Judicial Officer from denying

ALDF’s full merits participation once he concluded that the arguments presaged in ALDF’s

Motion to Intervene would not be useful because they were irrelevant to the proceeding. As

explained supra, the Judicial Officer’s interpretation of the ALJ’s powers was rational and must

be afforded deference. Once he made that rational determination, it was rational for him to

conclude that ALDF would not be able to provide relevant arguments to assist the decision-

making and thus was not entitled to a full round of briefings attempting to do so.




                                                14
       ALDF also maintains that the Judicial Officer erred in his assessment of the nature of the

contested issues because he concluded that “[t]he proceeding is targeted and has no broad [ ]

policy implications that affects a wide range of animal rights[,] advocates[,] humane societies[,]

zoos or other persons.” Pl.’s Mot. Summ. J. at 25 (alterations in original) (quoting A.R. 699–

700). Rather, ALDF explains that while USDA frequently prevails in enforcement proceedings

for violations of the AWA’s care standards, it rarely attends to the fate of the animals, which

raises broader policy implications. See id. at 25–26. But that purported pattern alone does not

render the Judicial Officer’s decision arbitrary or capricious. Of course, any agency action might

have some consequences for public policy, but as the Court noted in its previous opinion,

       an individualized enforcement action against a single respondent . . . is more
       targeted in nature than, say, a formal rulemaking or licensing proceeding that
       affects a wide range of consumers and competitors . . . . [T]he purpose of such
       proceedings is simply to determine whether the respondent violated the law and,
       if so, what remedy should follow.

Vilsack, 237 F. Supp. 3d at 23. The Court explained in this context that there “may be occasions

where a third party can offer relevant evidence as to liability or expertise with respect to

appropriate remedies” in enforcement proceedings, id. at 23–24, but, as discussed, the Judicial

Officer rationally concluded that this was not such a case because ALDF’s proposed remedies

were unavailable.

       Finally, ALDF contends that the Judicial Officer’s decision was arbitrary and capricious

because it ignored the possibility of a limited intervention. See Pl.’s Mot. Summ. J. at 28–30.

Contrary to ALDF’s assertion, the Judicial Officer did consider such a possibility, specifically

disagreeing with APHIS’s contention that intervention would require a new hearing. A.R. 703–

04. To be sure, the Judicial Officer’s assessment omitted a detailed assessment of other types of

tailored intervention. But “an agency’s decision [need not] be a model of analytic precision to



                                                 15
survive a challenge. A reviewing court will ‘uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned.’” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir.

1997) (alteration in original) (quoting Dickson v. Secretary of Defense, 68 F.3d 1396, 1404

(D.C. Cir. 1995). Here, in light of the Judicial Officer’s rational conclusions that ALDF could

present no relevant, non-cumulative evidence and no arguments relevant to aiding the decision

maker, the basis for his denial of limited intervention was discernable and sufficient under the

APA.

       Naturally, the parties’ briefing debates a few particular aspects of the Judicial Officer’s

decision to which ALDF objects, but the Court must assess the totality of that decision. Overall,

the Judicial Officer fulfilled his obligations on remand. He considered each of the factors that

the Court identified in its initial decision, concluding that some cut in favor of intervention while

others cut against it. He denied intervention based on an accurate understanding of the limited

issues to be addressed in the proceeding. Further, he rationally interpreted the AWA and its

implementing regulations as precluding the remedy for which ALDF sought to advocate.

Balancing these findings against the costs of an intervention that would either require the re-

opening of the evidentiary record or briefing arguments that were not useful to the agency’s

decision-making (or both), the Judicial Officer concluded that this was not an instance in which

intervention would comport with § 555(b)’s principle that intervention should be permitted only

“so far as the orderly conduct of public business permits[.]” Based on the record before him, the

Judicial Officer made a rational decision that was neither arbitrary, capricious, nor contrary to

the law.




                                                 16
 IV. Conclusion

      For the foregoing reasons, the Court will deny Defendants’ Motion to Dismiss, grant

Defendants’ Motion for Summary Judgment, and deny Plaintiff’s Motion for Summary

Judgment. A separate Order shall accompany this memorandum opinion.




                                                         CHRISTOPHER R. COOPER
                                                         United States District Judge

Date: October 11, 2018




                                             17
