Doris Day Animal, et al v. Veneman, Ann, et al, No. 01-5351 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2002 Decided January 14, 2003

No. 01-5351

Doris Day Animal League, et al.,

Appellees

v.

Ann M. Veneman, in her official capacity as

Secretary, United States Department of Agriculture, et al.,

Appellants

Appeal from the United States District Court

for the District of Columbia

(00cv01057)

John S. Koppel, Attorney, U.S. Department of Justice,

argued the cause for appellants. With him on the briefs were

Roscoe C. Howard, Jr., U.S. Attorney, and Michael Jay

Singer, Attorney, U. S. Department of Justice.

Christine M. Cooper was on the brief for amicus curiae

American Kennel Club, Inc., in support of appellants.

 Andrew C. Kimbrell, pro hac vice, argued the cause for

appellees. Joseph Mendelson III was on the brief.

Before: Randolph and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Hundreds of thousands of dog

breeders throughout the United States raise and sell puppies

from their homes. The Animal Welfare Act requires certain

animal "dealers" to be licensed and to submit to inspections.

The Act, which is administered by the Department of Agricul-

ture, exempts "retail pet stores" from these requirements.

The Secretary defines "retail pet store" as "any outlet where

only the following animals are sold or offered for sale, at

retail for use as pets: Dogs, cats, rabbits, guinea pigs,

hamsters, gerbils, rats, mice, gophers, chinchilla, domestic

ferrets, domestic farm animals, birds, and coldblooded spe-

cies." 9 C.F.R. s 1.1. The effect of this regulation is to

exempt breeders who sell dogs as pets from their residences.

The issue is whether the regulation is valid.

Doris Day Animal League, a membership organization,

filed a rulemaking petition with the Agriculture Department,

urging a change in the regulatory definition of "retail pet

store" so that residential operations would not be exempted.

The Secretary published the petition in the Federal Register

(62 Fed. Reg. 14,044 (Mar. 25, 1997)) and received more than

36,000 comments. When the Secretary announced that he

would retain the definition, and stated the reasons why, 64

Fed. Reg. 38,546 (July 19, 1999), Doris Day Animal League

and other organizations and individuals concerned about the

mistreatment of dogs brought this action for judicial review.

The Animal Welfare Act, 7 U.S.C. s 2131 et seq., seeks to

insure the humane treatment of dogs (and other animals)

raised and sold at wholesale and retail for research, for

exhibitions, for hunting, to serve as guard dogs, and to be

pets. Id. s 2131(1). Animal dealers must obtain licenses,

they must comply with standards governing the handling,

care, treatment, and transportation of the animals, and their

facilities may be inspected for compliance. See id. ss 2133,

2143, 2146(a). The Act defines "dealer" to exclude "a retail

pet store except such store which sells any animals to a

research facility, an exhibitor, or a dealer." Id. s 2132(f)(i).

The Act does not define "retail pet store." Pursuant to

rulemaking authority in 7 U.S.C. s 2151, the Secretary pro-

mulgated the regulation, quoted above, defining "retail pet

store." The regulation's basic definition of "retail pet store"

to mean "any outlet," without distinguishing homes from

traditional business locations, dates back to 1971. See 36

Fed. Reg. 24,919 (Dec. 24, 1971) (s 1.1(t) of the regulations:

" 'Retail pet store' means any retail outlet where animals are

sold only as pets at retail.").

The district court viewed the meaning of "retail pet store"

as plainly not including one who sells dogs for use as pets

from his residence, and therefore held the regulation invalid.

Doris Day Animal League v. Veneman, No. 00-1057, mem.

op. at 15 (D.D.C. July 30, 2001). The court relied on the

specific exemptions in the definition of "dealer" in 7 U.S.C.

s 2132(f) and the licensing exemption of s 2133.

There is no need to repeat the standards for reviewing an

agency's interpretation of a statute it alone administers. See

Envirocare of Utah, Inc. v. Nuclear Regulatory Comm'n, 194 F.3d 72, 75-77 (D.C. Cir. 1999). The question is what "retail

pet store" in s 2132(f)(i) means, or more precisely, what

Congress intended it to mean. Those who sell dogs as pets to

consumers from their residences are selling pets at retail.

But is a residence a "store"? One usually thinks of a store as

a business open to the public and engaged in the sale of

goods. But not all stores are open to the public and not all

stores are located in shopping malls or other typical business

locations. If a homeowner raised dogs; set up a separate

place on his property - say, for instance, a small building;

installed a counter and a cash register; displayed leashes,

collars, and other dog paraphernalia for sale; and advertised

the sale of puppies at his address, it would not be much of a

stretch to view this too as a store. The local zoning authority

might also view the matter that way.

 The government cites a dictionary to show that treating

residences as "retail pet stores" is possible. One definition of

"store" is "a business establishment where goods are kept for

retail sale." Webster's Third New International Dictionary

2252 (1986). But what is a "business" and what is an

"establishment"? A "business" is a "commercial or mercan-

tile activity customarily engaged in as a means of livelihood,"

id. at 302, and an "establishment" is a "more or less fixed and

usu. sizable place of business or residence together with all

the things that are an essential part of it." Id. at 778.

Webster's lexicographers thus might say that because a

residence can be a "business establishment," a residence can

be viewed as a "retail pet store" if dogs are sold there.

Those at Black's Law Dictionary (7th ed. 1999), would get to

the same conclusion by a more direct route. Black's defines

"store" as a "place where goods are deposited to be pur-

chased or sold." Id. at 1432. Residences are of course places

and dogs can be considered "goods." Still, we do not pretend

these dictionaries, or any others, provide a complete refuta-

tion of plaintiffs' contention that the so-called plain meaning

of "retail pet store" excludes residences, or that the opposite

is what Congress clearly had in mind. Whatever the printed

dictionaries say, we cannot be sure what was in the mental

dictionaries of the members of Congress. And so we will

move on.

Both sides rely on statements from the legislative history

of the Animal Welfare Act. The government and amicus

American Kennel Club, Inc., say the legislative history re-

veals that the emphasis of the Act was on regulation of

wholesale, not retail, sellers of animals. Plaintiffs point to

other statements suggesting that the exemption for retail pet

stores should be construed narrowly. In the end we can find

no solid evidence showing that Congress came to any conclu-

sion about the issue we face, one way or the other.

Plaintiffs' more serious claim, one that convinced the dis-

trict court, rests on the structure of 7 U.S.C. s 2132(f), the

provision defining "dealer." The definition of "dealer" has

two exceptions. The first we have already mentioned: it

provides that "dealer" does not include a "retail pet store"

(unless the animals are sold to a research facility, exhibitor,

or dealer). Id. s 2132(f)(i). The second excludes from the

definition of dealer "any person who does not sell, or negoti-

ate the purchase or sale of any wild animal, dog, or cat, and

who derives no more than $500 gross income from the sale of

other animals during any calendar year." Id. s 2132(f)(ii).

One of plaintiffs' arguments is that by not giving sellers of

dogs a de minimis ($500) exemption in subsection (ii), Con-

gress meant to make sure that those who sold dogs from their

homes remained covered by the Act no matter how much

income they generated. But the argument begs the question.

If subsection (i) already gave an exemption to residential

sellers of dogs as pets (because they were "retail pet stores"),

there was no need to give them a de minimis exemption in

subsection (ii). Plaintiffs also point out that if Congress had

wanted to exempt individuals selling dogs from their homes,

it could easily have written subsection (i) to cover "any

person" rather than "retail pet store," as it did in subsection

(ii). The argument is weak. It may be countered by arguing

that if Congress wanted to exclude residential sellers from

the definition of retail pet store it easily could have said as

much. The argument is, in any event, one that can be made

in any case in which there is a fair dispute about the meaning

of a statute. Often it is put this way: Congress knows how to

say thus and so, and would have written thus and so if that is

what it really intended. This proves very little. Congress

almost always could write a provision in a way more clearly

favoring one side - or the other - in a dispute over the

interpretation of a statute. Its failure to speak with clarity

signifies only that there is room for disagreement about the

statute's meaning.

Plaintiffs also direct us to the licensing exemption con-

tained in s 2133. The relevant portion reads:

any retail pet store or other person who derives less

than a substantial portion of his income (as deter-

mined by the Secretary) from the breeding and

raising of dogs or cats on his own premises and sells



 any such dog or cat to a dealer or research facility

shall not be required to obtain a license as a deal-

er....



The argument is that s 2133 reflects two separate and dis-

tinct licensing exemptions for dog sellers: "retail pet stores"

and "other persons." The second category, plaintiffs contin-

ue, "does not apply to persons who sell dogs or cats to

consumers for use as pets from their own premises." There-

fore Congress intended to keep the categories separate, while

the regulatory definition of "retail pet store" lumps them

together.

We will assume that the "other person" clause applies only

to those persons who are selling dogs and cats to dealers and

research facilities, rather than to consumers who want the

animals for pets. Even so, we cannot see how this helps

plaintiffs' contention that the plain meaning of "retail pet

store" does not include residences. Plaintiffs read the qualifi-

cation - breeding and raising dogs and cats, on the person's

premises, as a result of which he does not derive a substantial

part of his income, and selling to dealers and research

facilities - to refer only to "other person," not to "retail pet

store." Because of the disjunctive "or" in the passage, Dep't

of Hous. & Urban Dev. v. Rucker, 122 S. Ct. 1230, 1234

(2002), supports their interpretation. But even if plaintiffs

are correct about what s 2133 means, which we need not

decide, those "other" persons are not within the Secretary's

definition of "retail pet store" for the obvious reason that they

are not selling at retail. Under the regulation, residential

retail sellers, like traditional pet stores, are exempt from

licensing regardless of whether they make a substantial part

of their income from this activity. If the Secretary's inter-

pretation of "retail pet store" is correct, it would have been

senseless for Congress to add retail residential sellers in the

"other person" clause of s 2133; that would have created a

redundancy, or an overlap between the two classes exempt

from licensing. Given the regulation, a residential seller may

sell an unlimited number of dogs to the public as pets, but he

may sell outside of retail channels only if his sales of dogs are

less than a substantial portion of his income. The regulation

thus preserves both parts of s 2133, allowing each to operate

in its sphere.

While the regulation's definition of "retail pet store" does

not exactly leap from the page, there is enough play in the

language of the Act to preclude us from saying that Congress

has spoken to the issue with clarity. From what we can

make out, Congress has paid little attention to the question

posed in this case. Still, it is true that in the years since

passage of the Act and the Secretary's adoption of the

regulation, Congress has not altered the regulatory definition

of "retail pet store" although it has amended the act three

times. One line of Supreme Court cases holds that "when

Congress revisits a statute giving rise to a longstanding

administrative interpretation without pertinent change, the

'congressional failure to revise or repeal the agency's inter-

pretation is persuasive evidence that the interpretation is the

one intended by Congress.' " Commodity Futures Trading

Comm'n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v.

Bell Aerospace Co., 416 U.S. 267, 275 (1974)). The quotation

fits this case perfectly. Compare Alexander v. Sandoval, 532 U.S. 275, 292 (2001), refusing to find that Congress, through

silence, had endorsed a judicial interpretation of a statute.

But see Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Curran, 456 U.S. 353, 381-82 (1982).

This leaves the argument that the Secretary's resolution of

the meaning of "retail pet store" is not a reasonable one. In

our judgment the Secretary's decision and policy statement

declining to modify the regulation is supported with reasoning

that is persuasive and faithful to the Act's purpose of protect-

ing animal welfare. See generally Licensing Requirements

for Dogs and Cats, 64 Fed. Reg. 38,546 (July 19, 1999).

The Secretary spelled out several policy considerations

thus:

Second, we have determined that retail dealers,

especially those who sell from their homes, are

already subject to a degree of self-regulation and

oversight by persons who purchase animals from the

retailers' homes, as well as by breed and registry



 organizations. Breed and registry organizations,

such as kennel clubs, require their registrants to

meet certain guidelines related to the health and

genetic makeup of animals bred and to the education

of the registrants. These organizations also monitor

the conditions under which animals are bred and

raised. Wholesale dealers typically do not have this

type of oversight from the public.



....



Fourth, retail outlets are not unregulated. There

are already many State and local laws and ordi-

nances in place to monitor and respond to allega-

tions of inhumane treatment of and inadequate hous-

ing for animals owned by private retail dealers. If

we were to regulate these dealers along with State

and local officials, it would clearly not be the most

efficient use of our resources.



Id. at 38,547. While plaintiffs are unhappy about the degree

of self-regulation and the amount of oversight from local

humane societies, kennel clubs, and state agencies, the Secre-

tary, applying his expertise, was entitled to rely on these

factors in making his judgment about the need for federal

regulation. And he was entitled also to differentiate retail

sales from wholesale sales of dogs on the basis that "whole-

sale dealers typically do not have this type of oversight from

the public." Id.

The Secretary also declined to amend the definition on the

ground that the best interest of animal welfare is supported

by allowing the Department to "concentrate [its] resources on

those facilities that present the greatest risk of noncompli-

ance with the regulations." Id. The Department has decided

to focus on wholesale dealers, where its resources are likely

to yield the greatest benefit. This is a reasonable choice,

keeping in mind the purpose of the Act to promote animal

welfare. See Envirocare, 194 F.3d at 77-78. It was also

within the authority delegated to him by Congress for the

Secretary to decline to amend the definition in light of the

potential invasions of privacy that would result if federal

inspectors began enforcing "cleaning, sanitation, handling,

and other regulatory requirements in private homes." 64

Fed. Reg. at 38,547.

Taken together, the Secretary's decision to retain the regu-

latory definition of "retail pet store" reflects the judgment of

the agency entrusted with administering the Animal Welfare

Act to fulfill the purpose of the Act as effectively as possible.

For the reasons given, the regulation is a permissible con-

struction of the statutory term "retail pet store."

The order of the district court granting partial summary

judgment to the plaintiffs and declaring the regulation invalid

is therefore

Reversed.