The Ninth Circuit Court of Appeals has ruled that the Animal Legal Defense Fund (ALDF) can sue the U.S. Department of Agriculture (USDA) for its Food Safety and Inspection Service’s denial of a petition for rulemaking on prohibiting force-fed foie gras. Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 13-55868 (9th Cir., order entered December 7, 2015). The district court had dismissed the action sua sponte after determining the denial was equivalent to a non-enforcement decision and thus not reviewable by the court.

The appeals court described two exceptions that limit when an individual can challenge a final agency decision in court under the Administrative Procedure Act (APA), finding the district court had erred in determining the foie gras denial fell into one of the exceptions. The court distinguished “agency decisions not to take enforcement actions,” which cannot be subjected to judicial review and involve past breaches of existing laws, and “agency decisions not to initiate rulemaking,” which can and involve future effects.

The discretion at issue in the former situation shields decisions from judicial review because of the technical conclusions required, but the denial to issue a rulemaking here only requires an evaluation of the APA and the Poultry Products Inspection Act, which the court can complete without additional technical knowledge. Accordingly, the Ninth Circuit reversed the district court decision and remanded the case for further consideration.

ALDF filed an additional lawsuit against USDA in November 2015 asserting APA violations for a refusal to respond to a 2011 petition requesting mandatory labeling on force-fed foie gras. Additional details appear in Issue 584 of this Update.