USDA-APHIS FEDERAL COURT HEARING

RETAIL PET STORE RULE ORAL HEARING

“OUR DAY IN COURT” by Frank Losey, Pentagon Attorney, Retired

All the details of the Oral Hearing on behalf of hobby dog breeders opposing HSUS-led over-reaching legislation.

On the morning of October 9, 2014, the Oral Hearing for our Lawsuit, that a number of “naysayers” earlier this year confidently stated would never occur…OCCURRED!

As we have previously stated, DC Federal District Judges typically do not issue their Rulings until 2-3 months after the Hearing, depending on how many other cases they have. Consequently, we may not know how Judge Cooper will decide our case until December or January, or even later. And as we have previously stated, we cannot predict with absolute certainty that we will prevail. However, based on Judge Cooper’s even-handed demeanor and the questions that he asked Phil Hecht, our Counsel of Record for the Plaintiffs, and Mr. Tim Johnson, the Department of Justice Attorney who represented the USDA and APHIS, we believe that Judge Cooper will be objective in deciding the case. In fact, Judge Cooper’s insightful questions gave us more than a faint glimmer of hope!

At the beginning of the Hearing, which lasted 70 minutes, Judge Cooper invited Phil Hecht to provide comments. Phil summarized why the Plaintiffs believed that the Rule “overreached;” why it was “arbitrary and capricious;” how the Rule failed to distinguish the difference between large breeders and hobby breeders who breed a limited number of dogs in their personal residences; why a “sight unseen” standard is unwarranted for hobby breeders; how APHIS failed to accurately calculate and underestimated the number of breeders who would be affected by the Rule by an order of magnitude of tens of thousands of breeders; how APHIS underestimated the cost of compliance for hobby breeders; and ultimately, why the Rule should be set aside.

Phil responded to Judge Cooper’s specific questions by weaving our previously submitted written arguments into his responses.

Judge Cooper then invited Mr. Johnson (DOJ attorney representing USDA and APHIS) to provide comments. Once again, Judge Cooper asked Mr. Johnson insightful questions that reflected a fair, impartial and balanced objectivity. After Mr. Johnson finished his comments, Judge Cooper invited Phil to respond, and he asked our Counsel Phil Hecht, questions that related to the responses of Mr. Johnson.

From our perspective, one of Judge Cooper’s pivotal questions was what evidence in the record supported the assertion that the USDA underestimated the cost impact of the Rule? Phil referenced the five Affidavits from breeders that were in the record.

Judge Cooper then asked Mr. Johnson (the DOJ attorney) to justify the “proportionality” of the Rule, meaning whether the scope of the Rule can be justified by the facts in the record. In his final question, Judge Cooper asked Mr. Johnson if USDA had begun the Rulemaking that was referenced in the February 2014 Farm Bill Congressional Conference Report Language. Mr. Johnson responded that it was being discussed at USDA.

Judge Cooper then asked if a date had been set for the new Rulemaking and Mr. Johnson said no. After that response, Judge Cooper adjourned the Hearing.

One other noteworthy matter is that even though two HSUS Attorneys were at the Hearing, Judge Cooper did not invite them to present oral argument and he did not ask them a single question.

Again, we cannot predict with certainty how Judge Cooper will rule in our Lawsuit, but we left the Courthouse with positive spirits.

For a running summary of the long legal battle, funded in part by The Associated Dog Clubs of New York State, the VA Federation Of Dog Clubs, and individuals who care about preserving the sport of dogs, see APHIS CHRONOLOGICAL SUMMARY.

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