On Motion to Dismiss
Alternative Research and Development Foundation filed a petition for rulemaking requesting that the Secretary of Agriculture amend the definition of “animal” in regulations promulgated pursuant to the Animal Welfare Act (“Act”) to remove the current exclusion of birds, mice, and rats bred for use in research. Under the Act, the Secretary of Agriculture is authorized to promulgate standards and other requirements to govern the handling, care, and treatment of animals by dealers, research facilities, and exhibitors. 7 U.S.C. s 2143(a)(1). On January 28, 1999, the United States Department of Agriculture (“USDA”) published the petition and requested comments. See 64 Fed. Reg. 4356 (1999). While its agency petition was pending, Alternative Research and Development Foundation, as well as In Vitro International, and Kristine Gausz (collectively, “Alternative Research”) filed a complaint for declaratory and injunctive relief in the district court, alleging that the USDA’s exclusion of birds, rats, and mice from the definition of “animal” in 9 C.F.R. s 1.1 violates the Act. It sought an order enjoining the exclusion and directing USDA to amend the regulation by eliminating the exclusion.
After the district court denied a motion to dismiss filed by USDA, see Alternative Research v. Glickman, 101 F. Supp. 2d 7, 11-14 (D.D.C. 2000), the National Association for Biomedical Research (“NABR”), an association engaged in research using birds, rats, and mice, sought intervention as of right or, alternatively, permissive intervention. Subsequently, Alternative Research and USDA entered into a stipulation of dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(1). The stipulation provides, in pertinent part, that USDA will grant Alternative Research’s petition for rulemaking to amend the USDA regulation, and USDA agrees to initiate and complete a rulemaking on the regulation of birds, rats, and mice within a reasonable time. NABR then filed a motion to vacate the stipulation under Rule 60(b)(4). After a hearing, the district court filed the stipulation of dismissal and denied the motions to intervene and to vacate the stipulation under Rule 60(b), concluding that it lacked jurisdiction to decide the motions in light of the stipulated dismissal. Alternatively, the district court denied the motion to intervene as of right on the merits, concluding that NABR’s interests would not be impaired by the proposed rulemaking.
