Ray et al v. Vilsack et al

Filing 75

ORDER DENYING 63 Plaintiffs' Motion for Summary Judgment, GRANTING 64 Defendants' Motion for Summary Judgment, and DENYING AS MOOT 70 Motion for Leave to File Sur-Reply. Judgment shall be entered and this matter shall be closed. Signed by US District Judge Terrence W. Boyle on 7/23/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 5:12-CV-212-BO

COLONEL HOSEA M. RAY, et al.,
Plaintiffs,
v.

THOMAS VILSACK, et al.,
Defendants.

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ORDER

This matter is before the Court on the parties' cross motions for summary judgment [DE
63 and 64] and plaintiffs' motion for leave to file surreply [DE 70]. A hearing was held on these
matters on July 21, 2014 in Elizabeth City, North Carolina at 2:00p.m. For the reasons stated
herein, plaintiffs' motion for summary judgment is DENIED, defendants' motion for summary
judgment is GRANTED, and plaintiffs' motion for leave to file is DENIED AS MOOT.

BACKGROUND
On April 19, 2012, plaintiffs filed a complaint challenging the defendants' decision to
issue Animal Welfare Act ("A WA") licenses to roadside zoo and animal dealer Jambbas Ranch
Tours, Inc. ("Jambbas") in contravention of the AWA 7 U.S.C. § 2133. Plaintiffs contend that
because Jambbas could not demonstrate that it was in compliance with the AWA before
defendant renewed Jambbas's license that the agency's licensing decision was not in accordance
with the plain language of the AWA and therefore must be set aside under the Administrative
Procedure Act ("APA") 5 U.S.C. 706(2)(A). On July 23, 2012, plaintiffs filed a first amended
complaint. On July 25, 2012, defendants filed a motion to dismiss. On January 22, 2013, the

Court denied the motion to dismiss. Defendants filed the administrative record ("AR") 1 on
March 15, 2013 and supplemented the record on March 29 and April 12, 2013. On October 8,
2013, the Court ordered the defendants to supplement the AR and allowed plaintiffs to file a
supplemental complaint against all defendants. On January 7, 2014, a consent decision was filed
in defendants' administrative enforcement proceeding against Jambbas. [See DE 74]. The
consent decision suspended Jambbas's license for a period of four months and continuing
thereafter until Jambbas can demonstrate that it is in compliance with the A WA and the United
States Department of Agriculture ("USDA") regulations and standards. As of July 18, 2014,
Jambbas had not requested the USDA to perform the required inspection to demonstrate
compliance and therefore its license was still suspended as of that date.
DISCUSSION

I.

CROSS MOTIONS FOR SUMMARY JUDGMENT.
A. Standing

In order to establish Article III standing, a plaintiff must show "( 1) it has suffered an
injury in fact; (2) there exists a causal connection between the injury and conduct complained of;
and (3) a favorable judicial ruling will likely redress the injury." Virginia ex rel. Cuccinelli v.
Sebelius, 656 F.3d 253, 268 (4th Cir. 2011) (quotation omitted).

Defendants challenge only the redressability prong of the standing requirements. As this
Court earlier held, "[i]t suffices for redressability purposes that a favorable ruling will result in
the plaintiffs' injuries 'hav[ing] less probability of occurring." [DE 52 at 4] (quoting Pye v.
United States, 269 F.3d 459, 471 (4th Cir. 2001)). Plaintiffs have sufficiently established that

their injuries are likely to be redressed by a favorable ruling as the animals would be less likely

1

The Administrative Record is found on the electronic docket under separate case number 5: 13-MC-76-BO.

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to be treated in a manner that is in violation of the AWA. Accordingly, they have standing as of
the time this suit was initiated.
B. Mootness.

Article III of the United States Constitution limits federal court jurisdiction to actual
"cases" and "controversies" and requires that a dispute remains "live" and that litigants maintain
a "personal stake" in the outcome throughout the course oflitigation. US. Parole Comm 'n v.
Geraghty, 445 U.S. 388, 395-96 (1980). "The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue throughout its existence (mootness)."
!d. at 397 (quotation omitted). It is well-settled that "[i]ffull relief is accorded by another

tribunal -whether judicial administrative, arbitral, or a combination- a proceeding seeking the
same relief is moot. Mootness also results if another tribunal affords relief greater than that
sought in the pending action." 13B Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction§ 3533.2.1 (3d ed. 2013) (collecting cases).
1.

The matter before the Court is moot.

Defendants raise the issue of mootness in their motion for summary judgment. Colonel
Ray and Rikki Harrison, both named plaintiffs in this case, were also parties to a state court
action which concluded in August 2012 with a permanent injunction by consent directing the
transfer of owenership and possession of "Ben the Bear" from Jambbas to the Performing
Animal Welfare Society. [AR 49-71]. Concerns about "Ben the Bear" were a centerpiece of the
plaintiffs' allegations of standing and injury in fact, and the state judgment they obtained moots
that aspect of their claim.
The government also argues that the administrative action brought by the USDA against
Jambbas moots the remainder of plaintiffs' claims. Jambbas and the USDA entered into a

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consent order in this action and, although plaintiffs were not a party to the action, the defendants
argue that this consent order, obtained through the USDA's enforcement powers, accomplishes
more than any relief plaintiffs could obtain through a favorable judgment in this case. The
consent order suspends Jambbas's license for a period of at least four\ months "and continuing
thereafter until [Jambbas] can demonstrate to [USDA's Animal and Plant Health Inspection
Service ("APHIS")] that it is in compliance with the [AWA], regulations and standards." [DE
65-1

at~

5].

The consent order effectively provides the same relief plaintiffs would obtain by the nonrenewal of Jambbas's license. Jambbas will not be able to operate as a dealer or exhibitor for the
entire duration of the license suspension, the same as if the license were not renewed. See 9
C.F.R. § 2.1 0( c). Further, the license suspension will not be lifted until at least four months have
passed and Jambbas thereafter passes an inspection demonstrating full compliance with the
AW A. [DE 65-1]. Even assuming that Jambbas's license were not to be renewed, Jambbas
would have to meet this same demonstration of compliance in order to obtain reinstatement of its
license, see 9 C.F.R. § 2.3(b), but there would be no requirement that it wait four months or any
set period of time before applying for reinstatement. See 9 C.F.R. § 2.5(c).
Additionally, the consent order provides much more relief that plaintiffs would be able to
obtain from this Court. The consent order affirmatively requires that Jambbas cease and desist
from further violations of the AWA, including without limitation (i) failing to maintain an
adequate program of veterinary care; (ii) failing to remove excreta from animal enclosures and
sanitize the rabbit cages at least once every 30 days; (iii) failing to keep clean and sanitized food
and water receptacles; and (iv) failing to provide shelter adequate to environmental conditions or
to maintain its facilities in good repair. [DE 65-1 at ~ 1]. The consent order also levies monetary

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penalties and imposes suspended penalties that could be owed if Jambbas is found to have
violated the regulations at any time within the next two years including additional civil penalties
under 7 U.S.C. § 2149(c) for knowingly disobeying the consent decision's cease and desist order.
Finally, the consent order prohibits Jambbas from owning or acquiring any inherently dangerous
animals or primates, or from exhibiting more than 30 animals of any other species at any given
time. [DE 65-1

at~

2-3]. Thus Jambbas has had to divest itself of many of the animal species

that plaintiffs would like to see relocated to a better environment and reduce its animal inventory
to a more manageable level that should positively correspond to an increase in the level of care
provided to the remaining animals. 2 Jamb bas is also no longer in possession of the more exotic
and difficult to keep species listed in plaintiffs' complaint, including bear, alligator, raccoon, fox,
elk, and pheasant. 3
In response to defendants' argument that this matter is now moot, plaintiffs argue that
defendants have not met their "heavy burden" to persuade the Court that the "challenged conduct
cannot reasonably be expected to start up again." Friends of the Earth, Inc. v. Laidlaw Envt 'l

Servs. (TOC), INC, 528 U.S. 167, 189 (2000) (citation omitted). Plaintiffs contend that the
voluntary conduct of the defendants by entering into a consent order in their administrative
action against Jambbas cannot moot the claims before this Court because defendants have not
and cannot show that the challenged conduct cannot "reasonably be expected to recur." !d.
Plaintiffs are correct that the USDA intends to continue its policy of rubberstamping
AWA license renewal applications. However, the connection between all of the steps Jambbas
must take before reactivation of its license is too tenuous to conclude that the USDA will, in the

2

In May 2011, Jambbas had 138 animals in its inventory, as of February 2014, Jambass had reduced its inventory to
76 animals. [DE 65-2].
3
Jambbas's animal inventory as of February 2014 consisted of 23 goats, 18 sheep, 11 cows, 6 bison, 6 rabbits, 5
dogs, 2 blackbuck, 2 deer, 2 pigs, and 1 cavy. [DE 65-2].

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future, rubberstamp Jambbas's license renewal despite its being in violation of the AWA, and
regulations and standards.
First, plaintiffs' assertion relies on the presumption that Jambbas will apply to have its
license restored and will successfully demonstrate the compliance necessary to reactivate its
license. Jambbas is a third-party to this suit and has its own decisions to make regarding the
expense of compliance, the risk it takes in the chance of increased penalties should it later fail to
comply, and its normal business operation decisions that will impact whether or not it seeks to
reactivate its license. Although plaintiffs suggest that Jambbas's past revenue streams practically
ensure that it will attempt to have its license reinstated, the Court is not convinced. Indeed,
Jambbas has allowed two months to pass after the expiration of its four month suspension under
the consent order without attempting to have APHIS perform the prerequisite inspection in order
to reactivate its license. [DE 74]. Ostensibly a four month time period would have allowed
Jambbas to make the necessary corrections in order to pass an inspection and reactivate its
license. Thus it is not clear that Jambbas will ever reapply for its license, and, if it fails to apply
for reinstatement, the possibility of the USDA rubberstamping Jambbas's renewal application in
the future is eliminated. 4
Second, even if J ambbas were to get its license reinstated, it now has significant financial
incentive to comply with the AWA, and the USDA's regulations and standards. Third, by
prohibiting Jambbas from obtaining some of the more difficult animal species to care for, the
consent order further reduces the likelihood that Jambbas will fail to comply in the future.
4

Although offered in the context of standing, the Supreme Court's discussion of standing when plaintiffs challenge
the legality of the governments regulation or lack of regulation of someone else in Lujan v. Defenders of Wildlife,
504 U.S. 555, 561--62 (1992), is instructive. In such a circumstance, as here, "[t]he existence of one or more of the
essential elements of standing depends on the unfettered choices made by independent actors not before the courts
and whose exercise of broad and legitimate discretion the courts cannot presume either to control or predict." !d. at
562. Although it might have been reasonable to assume that absent the consent order, Jambbas would have
continued to operate and apply for license renewals, the consent order has disrupted the calculus here as to render
entirely unpredictable Jambbas's future actions.

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Fourth, by limiting the number of animals it can exhibit, the consent order further supports the
likelihood that Jambbas will be able to properly care for the animals that it does exhibit. In short,
defendants have met their burden of showing that the challenged conduct cannot be reasonably
expected to recur and, in doing so, have convinced this Court that the matter before it is now
moot.
n.

The matter before the Court does not fall under the exception to
mootness for actions that are capable of repetition yet evading
review.

Plaintiffs contend that if the Court finds their claims moot, as it has, the case falls within
the exception to mootness for actions that are capable of repetition yet evading review. This
exception "applies when ( 1) the challenged action is in its duration too short to be fully litigated
prior to cessation or expiration; and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again." Lux v. Judd, 651 F.3d 396, 401 (4th
Cir. 2011) (quotation omitted).
However, plaintiffs mischaracterize the nature of the action that moots their claim.
Plaintiffs are correct in that the challenge to license renewals would not be mooted by the
expiration of a year's passage and subsequent renewal or denial of the renewal of the license. See
Kramer v. Mosbacher, 878 F.2d 134, 136-37 (4th Cir. 1989) (challenge to yearly catch limits
was not mooted by the conclusion of the fishing year because the yearly reevaluation of catch
limits presented circumstances which were too short to be fully litigated prior to their cessation
or expiration). This is not the case here. What has rendered plaintiffs' claims moot is the consent
order entered in the administrative action brought by the USDA against Jambbas. Indeed, this
case has progressed for several years without a mootness problem up until the present time. The
entry of a consent order in this discreet instance does not mean that the USDA's policy of

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rubberstamping license renewals under the A WA is capable of repetition yet evading review.
Instead it means that this case can no longer be the vehicle for such a challenge as the immediate
goals of plaintiffs have been achieved here. Jambbas's license has been suspended and it cannot
reactivate the license until it has demonstrated, through inspection, that it is in compliance with
the A WA. Further its ability to keep certain types of animals has been eliminated and the overall
number of animals it can exhibit, and therefore must care for, has been reduced. As explained
supra Part I.B.i, there is not a reasonable expectation that the complaining party will be subject

to the same action again as applied to the license renewal of Jambbas.
Accordingly, this case does not fall under the mootness exception and this Court lacks
jurisdiction to consider the merits. Therefore the Court must grant defendants' motion for
summary judgment and dismiss the case without reaching the merits of plaintiffs' claims.
II.

MOTION FOR LEAVE TO FILE SURREPL Y.

As the Court has not reached the merits of this action and plaintiffs' proposed surreply
addresses the merits determination of another district court, this Court has no need to consider
the surreply in its decision. Accordingly plaintiffs' motion for leave to file surreply is denied as
moot.

CONCLUSION

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For the foregoing reasons, defendants' motion for summary judgment is GRANTED and
plaintiffs' motion for summary judgment is DENIED. The matter before the Court is MOOT and
the Court lacks jurisdiction to consider the merits of this action. Accordingly, this matter is
DISMISSED AS MOOT. Plaintiffs' motion for leave to file surreply is DENIED AS MOOT.
The Clerk is directed to enter judgment accordingly and to close the file.

SO ORDERED.
This the

a:J_ day of July, 2014.

~L.J·¥
UNITED STATES DISTRICT JUDGE

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