1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) HUMANE SOCI ETY OF THE ) UNITED STATES, et al. , ) ) Plaintiff s , ) ) v. ) Civil Act ion No. 19
- cv - 0 2458 ( ESH ) ) UN ITED STATES DEPARTMENT ) OF AGR ICULTURE , et al. , ) ) Defendant s . )

_______________

__________________________ )

M EMORANDUM OPINION
Before the Court is a Motion to Dismiss brought by defendants the United States Department of Agric ultur e ( “ USDA ” ) ; the Animal and Plant Health Insp e cti on Service ( “ APHIS ” ) ; th e Office of th e Federal Register ( “ OFR ” ) ; Sonny Perdue, in his official capacity as Secretary of Agriculture; Kevin Shea, in his official capacity as APHIS Administrator; and Oliver Potts, in his official capacity as D i recto r of the OFR (collective ly, “ defendants ” ).
De fendants argue that plaintiffs ( the Humane Society of the United States ( “ HSUS ” ) , the
Human e Society Legislative Fund ( “ HSLF ” ) , and four indiv id uals) lack standing to bring th is action and that their cl aims fail as a matter of law. F o r the reasons set for t h herein , the defendants ’ motion will be granted. BACKGROUND
I. FACTUAL BACKGROUND A. Horse Protection Act and Associated Regulations
The Hor se Protection A ct (the “ HPA ” ) , see 15 U.S.C. § 1 8 21 et seq. , passed in 1970 a nd2

amend ed in 1976, “ outlaws the pra c tice of horse soring, an inhumane practice of causing pain to a horse’s foot or leg to produce a more desirable gait

. ” ( See Mem. in Support of M ot. to Dismiss ( “ Mot. to Dismiss ” ) at 1 , ECF No. 18

- 1 .) Congress empowered the Secretary of Agriculture to is s ue r ules and reg ulations to implement the p rovisions of the Act. See 15 U.S.C. § 1 8 28. The Secretary exercised this authority soon af ter the HPA ’ s 1976 amendments and , through APHIS,

“ promulgat e d regulations governing inspections to detect the use of de v ices, equ ipment and chem ical substances that cause soring and those that attempt to mask it, and enfo rcement in the event of such detection

. ” ( See Compl. ¶ 3 (citing 9 C.F. R. § 11.1 et seq . ) , ECF No. 1 .)
U nder the regulations, “ no chain, boot, roller, c ollar, ac tion de vice, no r a ny other device, method, practice, or substance shall be used with respect to any horse at any horse show, horse exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sor e . ” 9 C.F .R. § 1 1.2(a). The regulati ons also ban certain categories of devices in all situations

. See id. § 11.2(b) (banning , inter alia , “ [c] hains weighing more than 6 ounces
each , ” and “ [c] hains with links that are not of uniform size, weight and conf i guration ” )

. F urthermore, they permit Hors e Industry Organizations ( “HIOs ”) , defined by the regulations as “o rganized group [s] of people, having a formal s tructure, who are engaged in the promotion of horses through the showing, exhibiting, sale, auction, registry, or any activity which contribute s to the advancement of the horse , ” id. § 11.1, to “ hire and license private individuals known as Design ated Qual ified Persons ( ‘ D QPs ’ ) to perform inspections and

. . . assess and enforce penalties (and administer appeals of those penalties) of any horse s oring identified by DQPs

. ” (Compl. ¶ 3.) While the HIOs carry out the licensure of DQPs, the regulations provide certain minimum requirements for the licensing process and re quire that DQPs be either Doctors of
V eterinary Med icine with equine experience or “ [f] arriers, horse trainers, and other3

knowledgeable horsemen ” with relevant experience who have been trained and license d by a n HIO. S ee 9 C.F.R. § 11. 7.
Th is regulatory system for detecting and preventing ho r se soring has been criti cized by

some, including plaintiffs, for “ a llowing the horse industry to regulate itself ” through HIOs, as well as “ fail [ing] to prohibit certai n devices, equipm ent and foreign substances that have no legitimate purpose other than t o cause horse soring

. ” ( See Compl. ¶ 3.) A 2010 report by the
USD A ’ s Office of the Inspector General ( “ OIG ” ) found that DQPs , who are hired by the HIOs to enforce the HP A, “ are reluc tant to issue violations since excluding horses from the show inconveni e nces their employers, and makes it less likely they will be hired f or other shows. ” ( See id. (citing U.S. Dep ’ t of Agriculture, Audit Report 33601

- 2

- KC (2010), https://www.usda.gov/oig/webdo c s/33601

- 02

- KC.pdf (hereinafter “ OIG R eport ” ) ).) Moreover, DQPs “ are also subject to a conflict of interest because, while they are acting as a DQP at one show, they may be an exhibitor at an oth er show, a nd the exhibitor of the horse they are examining m i ght later act as the DQP

. ” ( Id. ) As a result of this system , the individual plaintiffs allege t hat they are currently unable

“ to attend walking horse shows and participate in the wa lking hors e industry without the pain of knowing horses [are] being sored

. ” ( See, e.g., i d. ¶ 20 .) They allege that they have largely withdrawn from the walking hor se show communit y because “ it [i] s impossible for sound horses to compete in the industry , ” and as a result th ey have l os t clients due to their own refusal to sore
ho rses , or they had their own horses sored against their wishes . ( See , e.g., id. ¶ ¶ 19 , 2 0 .)
B. 2016 Rulemaking and 2017 Withdrawal As noted above, in 2010 the USDA ’ s OIG publish ed a rep ort th at conclud ed that

“ APHIS’ program for inspecting horses fo r soring is not adequate to ensure that these animals4

are not being abused

. ” See OIG Report at 1. In particular, the OIG “ found that DQPs do not always inspect horses to effect ively enforce the law an d regulations, and in some cases where they do find vi o lations, they deliberately issue tickets [ i.e. , for violations of the Act] to friends or family mem bers of responsible individuals so that the responsible person could avoid receiving a penalty for violating the Horse Protect ion Act. ” Id. The report “ re c ommend [ed] that APHIS abolish the DQP program, and instead provide independent, ac credited veterina rians to perform inspections at sanctioned shows. ” Id. at 3. During the next sever al ye ars following the releas e of the OIG R eport, p laintiff H SUS petitio n ed the USDA to amend its HP A regulations. ( See C ompl. ¶¶ 72

- 74.) I n 2016, APHIS published a pro posed rule that “ would replace the HIO

- administered scheme with USDA

licensed inspectors and would prohibit cert ain devic es, equipment a nd foreign substances with no legitimate purpose other than to cause horse soring

. ” ( See Compl. ¶ 4 ); see also 8 1 Fed. Reg. 49,112 (July 26 , 2016). T h e proposed rule would “ p rovide that [APHIS would] train and license Designated Q ualified Persons (DQPs) to inspect horses at h orse shows, exhibitions, sales, and auctions for co mpliance with the Horse Protection Act

. ” 81 Fe d. Reg. at 49,112. APHIS acknowledged the OI G Report and “ agree [d] with OIG ’ s conclusion that the current program o f HIOs training and licensing DQPs is not adequately detecting instances of soring. ” Id. at 49,115. The proposed rule also “ prohibit [ ed ] the use of pads, action devices, and substances

. ” Id. at 49,117.

“ On January 11, 2017, David Howar d, the Ac ting Deputy Und er Secretary for Marketing and Regul a tory Programs signed a document summarizing the outcome of the notice an d

comment procedures a nd explaining forthcoming changes to USDA’s HPA regulations [,]

. . . and sent the document to the OFR for publ ication as a ‘ F inal Rule

. ’ ” ( Mot. to Dismiss at 8

. ) This5

document , wh ich the Court refers to as the “ 2017 Rule , ” provided that much of it would be come effec tive on January 1, 2018

. ( See Comp l. ¶ 84.) However, two se ctions , w hich bann ed action devices and eliminat ed the HIO training program while imposi n g new inspector requirements ,

wou ld be come effective thir ty days after publication in th e Federal Register

. ( See id. ) “ OFR posted the [2017 Rule] for ‘ public inspection ’ on Thursday, January 19, 2017, and as signed a publ ication date of Tuesday, January 2 4, 2017. ” ( Id. ¶ 93.) However, the 2017 R ule was never published in the Federal Register. Aft er OFR posted the Rule for public inspection, but before it was published, President D o nald Trump was sworn into office . On Inauguration Day, January 20, 201 7 , “ President Trump’s Chief of Staff Reince Priebus issued a memorandum directed to agency heads e ntitled , ‘ Regulatory Freeze Pending Review

. ’ ” ( Id. ¶ 94.) This memorandum directed all agencies to immediately withdr aw any rule that was at the OFR but had not yet been published in the Fed eral R e gister. ( See id. (citing Memorandum from The White House to the Heads of Executive Departments and Agencies (Jan. 20, 2017), https://www.whitehouse.gov/presidential

- actions/memorandum

- heads

- executive

departments

- agencies/ ) .) As a result, on January 23, 2017, the USDA sent a letter to the OFR requesting that the 201 7 Rule be withdrawn from the public dock et and not be pu blished. ( See Mot. to Dismiss at 8 (citi ng Letter to Oliver Potts, Ex. D, ECF No . 1

- 4 ).) The 2017 Rule is now listed on the USDA ’ s list of “ inactive ” rulemakings. ( See id. at 9.) In a 2018 let ter, th e USDA explained that the rulemaking was listed as inactive while the Departm ent focused on higher

prior ity actions, namely several ru lemakings under the Animal Welfar e Act. ( See id. at 9

- 10.)
II. PROCEDURAL HIS TORY
Plaintiffs filed their complain t on Au gust 1 3 , 2019. They request declarat ory and injunctive relief, and bring five causes of action: (1) unlawful repeal of the 2017 Rule w ithout6

notice and comment , in violation of the Administrative Procedure Act ( “ APA ” ); (2) unlawful change of agency positio n , in violation of the APA; (3) mo v e ment of the 2017 R ule to “ inacti ve ” status without no tice and comment or reasoned explan ation , in violation of the AP A; (4) wit hdrawal of a rule for reasons other than erro r correction and subseq uently failing to publish it , in violation of t he APA, the F e deral Register Act ( “ FRA ” ) , and OFR regulations; and (5) repeal of t he 2017 Rule , thereby leaving the pr ior regulatory regime i n place, in violation of the APA and HPA ’ s mandate to reduce hor se soring. ( See Compl. ¶¶ 106

- 25.) Defendants filed the
instan t m otion t o dismiss on Octobe r 18, 2019, arguing that plaintiffs lack standing to bring thei r claims , and that their claims fail as a matter of law. A NALYSIS
I. LEGAL STANDARD
Defen dants move to dismiss plaintiffs ’ complaint for lack of subject matter ju r is diction , pur suant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which any relief can be granted, pursuant to Rule 12(b)(6). At this stage, a court must “ c onstrue the complaint liberally, granting plaintiff [s] the be n ef it of all inferences that can be derived from the facts alleged

. ” See Barr v. Clinton , 370 F.3d 1196, 1999 (D.C. Cir. 2004) (internal quotation marks omitted). “ However, the court need not accept inferences drawn by plaintiffs if such inferences are u n su pported by the facts set out in the complaint [, ]

. . . [ n] or must the court accept legal conclusions cast in the form of factual alle gations

. ” Kowal v. MCI Comm c ’ ns Corp. , 16 F.3d 1271, 1276 (D .C. Cir. 1994).
I I. STANDING A. Legal Framework The “ irred ucible c ons titutional minimu m of standing, ” which is “ an essential and7

unchanging part of the case

- or - controversy requirement of Article III , ” contains three elemen ts : (1) injury

- in

- fact; (2) traceability between the complained

- of action and the injury ; an d (3) li kel y redres sability by a court granting the requested relief. See Lu jan v. Defenders of Wildlife , 504 U.S. 555, 560

- 61 (1992). “ The party invoking federal jurisdiction bears the burden of establis hing these elements

. ” Id. at 561. “ At the pleadi ng stage , g eneral factual allegations of injury resulting from the defendant ’ s conduct may suffice, for on a motion to dismiss [courts]

‘ presu m[e] that general allegations embrace those specific facts that are necessary to support the

c laim

. ’ ” Id. (quotin g Lujan v. Nat ’ l Wi ldlife Fed ’ n , 497 U.S. 871, 889 (1990)).

“ An organization may assert standing on its own behalf or on behalf of its m embers. ”
Am. Soc ’ y for Prevention of C ruelty t o Animals v. Feld Ent ., Inc. , 659 F.3d 1 3, 24 (D.C. Cir. 2011). An orga niz ation asserting standing on its own behalf must allege the same three elements required of individuals. See id. “ Associatio nal standing , ” on the other hand, requires that “ (1) at least one of their members would have standing to sue; (2) the interests th ey seek to protect are germane to the organizations ’ purposes; and (3) neither the claim asserted nor the relief requested re quires the participation of individual members. ” Sierra Club v. EPA , 754 F.3d 995,
99 9 (D.C. C i r. 2014).
B. Analysis
Defendan ts challenge only the causation and redress ability prongs of plaintiffs ’ standing. 1

1 W i th the exception of plaintiffs ’ fourth ca us e of action , which is based on the FRA and OFR regulat ions, defen dants do not argue tha t plaintif fs have failed to allege an injury

- in

- fact. ( Compare Mo t. to Dismiss at 13 with id. at 25

- 2 6 .) W hile the Court cannot assume injury

- in

- fact simply because neither party has contested it, the Court conclude s t hat at least one p laintiff has alle g ed an injury

- in

- fact due to the complained

- of actions by defe ndants. See Ameren Servs. Co. v. FERC , 893 F.3 d 78 6, 791 (D.C. Cir. 201 8 ) ( “ T he presen ce of one party with standing is sufficient to satisfy Article III ’ s case - o r - controversy requirement.” (inte rnal quotation marks and brackets omitted)). For example, several of the individual plaintiffs have cease d part icipating in the showing and business of walking horses due to the failure of def endants to reduce the8

“ T ypically, redressability and traceability overlap as two sides of a causation coin ” and , as a result, are treated as “ closely related. ” Dyna lantic Corp. v. Dep ’ t of Def ens e , 115 F.3d 1012 , 1017 (D.C. Cir. 1997). Neverthe less, they are di stinct. “ [C] ausa tion focuses on the connection between th e assertedly unlawful conduct and the alle ged injury whereas redressability focuses on the connection between the alleged injury an d the judicial relief requested.” West v. Lynch , 845 F.3d 1228, 1235

- 36 (D.C. Cir. 2017). Since the assertedly un lawful con du ct (failing to publish the 2017 Rule) and the judicial relief requested (publication of the 2017 Rule) comp let ely

over lap, the two elements of st anding are even more closely intertwined here. First, defendants ar gue that “ the entirely speculative chain of causatio n t hat would be required to connect [the injuries] alleged with the withdrawal of the [2017 Rule] is insufficient to establish standing

. ” ( Mot. to D ismiss at 13.) Th ey contend that the connection between the publication and finalization o f the 2017 R ule and the redu ction or elimination of plaintiffs ’ harms relating to horse soring is “ simply too tenuous to support cau sation

. ” California ns for
Ren ewable Energy v. U.S. Dep ’ t of Energy , 860 F. Supp. 2d 44, 52 (D.D.C. 2012 ). The 2017 Rule wo uld accompli s h two primary objectives: (1) it would abolish the current system of HIO licensure and require all ho rse inspectors to be licensed by the USDA and APHIS , and (2) it would ban many more de v ices and substances often used in horse soring. T h e OIG Repor t refutes defendants ’ claim that there is no “ evidence that the new changes would actually alleviate the perceived pro blems ” in the inspector licensing regime. ( See Mot. to Dismiss at 14.) F o r example, the OIG Report reviewed APHIS records over se ver al years and “ found that DQPs are much more likely to find evidence of soring when APHIS employees are present than when t hey

are not , ” ostensib ly because of the inherent conflict of interest faced by DQPs who are trained,

prevalen ce of soring. ( See , e.g., Comp l. ¶ ¶ 18

- 21.)9

hired, and pai d by the system the y are supposed to pol ice. See OIG Report at 11. The 2017 Rule, on the other hand, would have put in place conflict

- of

- in terest requirements to prevent individuals heavily involved in the walking horse industry from also participat ing in the inspection proce ss , and would have required that ins pectors be veterinari ans, “ who would suffe r reputational damage and could lose not only th eir HPI license but even their veterinary license if they fail to enforce the HPA

. ” ( See Pls. ’ Opp. at 16 , ECF No. 23 .) Defendants are correct that

some current DQP s could also have qualified as inspect ors under the 2017 Rule, and th at the

s hows a re stil l responsible for the hir ing of

— and therefore the choice of who to hire as

— inspector s. ( S ee Mot. to Dismiss at 1 4

. ) Ho wever, the causal chain here is not ne arly as attenuated as in case s where standing was found to be lacking, such as Calif ornians for
Re newable Energy , in which the harm the plaintiffs described was “ affected by a variety of factors, not the least of which is market forces entirely ou ts ide [the de fendant ’ s] control

. ” 860 F. Supp. 2d at 52. M oreover, t he fact that the 2017 Rule wou ld not have definitively and completely addressed plaintiffs ’ injuries does not mean that causation is lacking. See Defen d ers of Wildlife v. Gutierrez , 532 F.3d 913, 925 (D.C. Cir. 2008) (concluding th at the plaintiffs had established standing even if the def end ant ’ s action only red ressed the plaintiffs ’ injur ies “ in part ” ). Defendants also c riticize plaintiffs ’ contention tha t the ban o n action devices and lubricants would affect the prevalence of soring, noting that the current regulations already ban

an y devic e or substance that causes horse s to be sore. ( See Reply at 5 , ECF No. 25 .) However, as plaintiffs point out, “ these devices ar e all high l y visible, ” meaning that if they are complet el y banned (rather than simply banned when causing soreness), enf orcemen t will be much simpler and therefore likely more effective. ( See Pls. ’ Opp. a t 20 (internal citation omitted) ; see also id.10

at 2 1 ( “ In the s e ways, the [2017 Rule ’ s] bans would eliminate the most common mechanisms for both soring and avoiding detect ion of soring, and remove much ambiguity from the inspection process by making violations readily apparent

— either an action device is there, or i t is not; either a substance is there, or it is not

. ” ). ) Plaintiffs ’ con tentions are shored up by the finding s in

t he proposed rulemaking , which stated that APHIS had found “ that a relationship exists between the use of such items [ i .e. , action devices] and soring in horses ” and that, as a result, “ to successfully and significantly reduce the number of sored hors es . . . [the Secre tary and APHIS were] proposing to prohibit the use of pads, action devices, and substances

. ” See 8 1 Fed. Reg. 49,117. Second, defendants argue that plaintiffs ’ injuries would be redressed only by the elimination of soring altogether. ( See Mo t. to Dismiss at 15 ( “ Although the precise degree of reduction is uncertain, it clearly must be significant in light of the allegations in the Complai n t. ” ). ) Defendants point to the fact t h at “ [e] very one of the named Plaintiffs alleges that
their i njurie s would only be remedied if they were able ‘ to attend walking horse shows and participate in the walking horse industry without the pain of knowing ho r ses were being sored

. ’ ” ( See id. (quoting Compl. ¶¶ 18

- 21 ) (emphasis in original ).) However, the C ourt d oes not read this, as defendants urge it to, as requiring that “ the reduction in horse soring

. . . be so significant that [plainti ffs] did no t believe that it continued to occur ” ( see id. at 16); to the contrary, as plaintiffs c lai m, the current HPA regul ations have “ created an expectation that horses w ill be sored and a reality in which it is difficult to win otherwise

. ” ( See Pls. ’ Opp. at 1 0 (emphasis in original).) Finding redress ability d oes not require the Court to predict “ future actions to b e take n by third parties

. ” A rpaio v. Obama , 797 F.3d 11, 21 (D.C. Cir. 2015) (internal quotation marks omitted ). P assage of the 2017 Ru l e would ha ve created a more rigorous inspection regime and11

an easier

- to

- enforce ban on devices and substances, which w ould l ikely have resulted in a reduced incidence of soring , where soring would no longer b e “the norm. ” ( See Pls. ’ Opp. at 11.) For ex ample, t h a t plaintiffs ’ desire to no longer “ know [] ” that horses were being sore d would be redressed by passage of the 2 017 Ru le is particularly eviden t when considering the ban on action devices

— “ a ction devices, pads and wedges are visu al markers that ind icate hor se soring has and is occurring, and would all but disappear under th e ” 2017 Ru le. ( See id. at 11, 12.) In sum , plai ntif

fs have effectively alleged that failure to pass the 2017 Rule is causing their injuries, and that their injuries would be redress ed by the p as sage of the Rule . As a result, the Court concludes that they have standing to bring their claims

. II I . APA C LAIMS
A . Failure to P ublish th e 2017 Rule Plaintiffs first argue that defendants violated the AP A by unlawfully repealing the 2017 Rule and c hangi ng their position without n otice and comment. Notice and the op portuni ty to comment is required by th e APA for all rulemakings

. S ee 5 U. S.C. § 553(b)

- ( c)

. Moreover, t he
AP A ’ s definition o f “ rulemaking ” includes the “ agency process for formulating, amen ding, or repealing a rule

. ” See i d. § 55 1 (5). Of course, this prescription applies on ly to final, le gi slat ive rules. See Co alition for Common Sense in Gov ’ t Pro curement v. U nited States , 576 F. Supp. 2d 162, 171 (D.D.C. 2008) ( “ [A] n amendment to a legis lative rule must itself be legisla tive and therefore subject to notice and comment requirements

. ” (int ernal quotation marks omitted)).
And u p until a rule ’ s fin alization, “ [a] n agency is free to adjust or abandon [its] proposals in light of public co mment s or internal agency reconsiderati on without having to start another round of rulemaking

. ” Ass ’ n of O il Pip e Lines v. FERC , 83 F.3d 1424, 1432 (D.C. Cir. 1996) (internal quotation marks omitted) ; s ee also Rowell v. Andr us , 631 F.2d 699 , 702 n.2 (1 0th Cir. 1980)12

(noting that “ [a] t the poin t of publication of the proposed rule the agency is, of course, not bound to the issuance of the rule in any exact form , ” and that it could “ scuttle the whole proposal ” if it so cho se). Th ese basic tenets of admin ist rativ e law are not at issue

— instead, the partie s ’ disagree ment centers on whe n a rule officially becomes fi nal su ch that i t cannot be withdrawn without notice and comment

. Based on statu tory considerations , see Section III.A.1, infra , and the rel evant c as e law, see Section III.A.2, the Court concludes that in a case where the agency does no t consider a rule to be fi nalized, and the rule has not been published in the Federal Register , it does not constitute a final iz ed , legislative rule. As a result, the d efendants did not viol ate the APA when they failed to pub li sh the 2017 Rule, as it was not a final rule req uiring notice and comment r ulemaking prior to its alleged repeal.

1. Statutory Fr amework As plaintiffs rightly observe, the AP A

— which a lso compris es the subsequently

- en acted Freedom of Information Act ( “ FOIA ” )

— s tates that a generalize d statement of a p r op osed rulemaking “ shall be published ” in the Federal Register, see 5 U.S.C. § 553(b), but includes no similar requirement of publication in its desc ription of the rulemak ing process for finalized rule s . O n the other hand, the APA does state that the “ req uired publication ” of a rule may not be less than 30 days before a rule ’ s effective date, see id. § 553(d), and that an agency “ shall separately

stat e and currently publis h in the Federal Register ” its legi slative rules. Id. § 552(a)(1). These relative ly bar e - bones r equirements provide little exp licit guidance on the finality of agency rules. However, a number of cases have read these provisions a s meaning that publica tion is required for the finality o f a rule. See , e.g., NRDC v. EPA , 559 F.3d 561, 5 65 (D. C. Cir. 2009) ( “ Agencies must publish substantive rules in the Federal Register to give them effect. ” )

. In fact, it is often take n for granted as a “ basic tenet of adm inistrative law, set out by13

the APA , ” that regulations do not ta ke effect until they a re published in the Federal Registe r. See
NRDC v. NHTSA , 894 F.3d 95, 106 ( 2d Cir. 2 018). If the AP A requires that a ll rules shall be published in the Federal Register, it logically follows that the statu te m ust have in tended for th e “ required publication ” to mean publication in the Federal Register

. Plaint iffs , on the other hand, argue that “ the ‘ purpose ’ of the publication requirement in FRA ‘ is to make sure that persons may find the necessary rules ’ ” (Pls. ’ Opp. at 25 (quoting United States v. Aaron s , 31 0 F.2d 341, 348 (2d Cir . 1962) ) , meaning that the statute was concerned with con stru ctive notice rather than the finality of agency rules

. However, the Court conclud es that the APA ’ s allowance for act ual n otice , rather than constructive noti ce, is more
ap tly described as “ an express exception ” to “ 552(a)(1) ’ s publication requirement

. ” See Texa s Alliance for Home Care Serv s . v. Sebeli us , 811 F . Supp. 2d 76, 103 (D.D .C. 2011) (emph as is

a dded)

. As a r esult, t he fact that the AP A allows unpubl ished rule s to be enforced aga inst individuals on notice of the rule , see A arons , 310 F.2d at 348 , does not change the Court ’ s

con clusio n that publication is required for finality

. In the cases of pre

- publication enforcement , the age ncy continues to treat the unpublishe d rule as final

. See section III.A.2 .b , infra (dis cussing pre - publication enforcement cases and how un iformly, the agency considers the rule to b e final)

. Th e law simply reflects the conclusion that enfor cement in suc h a situation is not unfair given t ha t the party tha t is the subject of the enforcement action is on notice of th e rule.
See , e.g., Aarons , 310 F. 2d at 346 (noting, i n a situation where a regulation r equire s k nowledge for c riminal l iabili ty, “ [i] t would be rather ano malous t hat although publ ication in the Federal Register wo uld not have sufficed to create criminal liability in the absence of actual know ledge, lack of publi cation should be fatal when ac tual knowledge exists. ” ). The APA requires that al l14

“ substantive rules o f general applicabi lity adopted as au thorized by law ” be published in the Federal Register

. S ee 5 U.S.C. § 552(a)(1)

. T he exemption for enforcement of unpublished rules merely gives agencies flexibility to enforce rules that all parties a dmit they knew of even if publicati on ha d not yet occurred

. See, e .g. , Aarons , 310 F.2d at 346

.

2. C ase Law

a. Ru le Withdraw al Cases
The case law concerning so - ca lled “ midnight rulemakings , ” and the validity of actions
tak en by an incoming administration to address them, is spar se. See William M . Jack, Taking
Care That Presidential Oversight of the Reg ulatory P roc ess is Fa ithfully Executed , 54 A dmin L.
Rev. 1479, 1499 (2002) (noting the “ dea rth of caselaw analyzing the val idity of rule withdrawals ” by incoming presidential administr ations ). But the one case from the Court of Appeals to address this sit uation, while not factually identical , supports the government ’ s argument that rules may be withdrawn prior to their public ation in the Federal Register. In
Ke nnecott Utah Copper Corp oration v . U ni ted States Dep artment of the In terior , 88 F.3d 1191 (D.C. Cir. 1996), the Court of Appeals concluded that the Department of the Interior ’ s choice to withdraw a rule at the OFR , and later publish a dif ferent rule, did not violate the A PA

. The rule in quest ion was at th e OFR for “ confidential processing, ” which m eans that the OFR was

r eviewing and editing the rule , but it had not yet been rel ease d to th e public. See id. at 1 205. It was then withdrawn, and a subsequent rule was later published after further notice and comment procedures

. The Court concluded that “ the 1994 Regulations did not repeal or modify the 1993
Documen t for the simple reason that the 1993 Document never became a binding rule requirin g repeal or modification

. ” Id. at 120 8. As a resul t, the withdrawal of th e earlier rule was not in violation of the AP A

.15

At least one c ase to discuss Kenne cott emphasized that th e rule was at the con fidential processing stage and had not yet been release d to the public. See NRDC v. Perry , 9 4 0 F.3d 1072 , 1077 ( 9th Cir. 2019) . In Perry , the Ninth Circuit concluded that a rule could not b e withdrawn, noting that “ the regulations at issue in K ennecott w ere never made available for public inspection with the expectation th at they would become fi nal, as the ru les were here. ” See id

. Howev er, in Perry , th e Department of Energy ’ s inability to withdraw the rule was not based on t he APA , but

on the so

- called “ error - correction ” regulation specific to DOE

. See id. at 10 80 ( “ By delaying publication of the four rule s beyond the perio d permitted under the error

- correction rule, DOE has violated the nondiscretionary du ty imposed by its own regulation. ” ). As in Ke nnecott , there is no such regulation applicable to the defendants

. See id. at 1077 ( “ [T] here could have be en no argument in K

e nnecott that the agen cy had a mandatory duty to publish the regulations due to anyth ing similar to the error - correction rule. ” ).
M oreover, t he Court sees no reason why a rule ’ s withdrawal during the co nfidential processi ng period, as opposed to during t h e period of public inspection

— which still precedes final publication

— should be reaso n enough for a different result

. Another Nin th Circuit ca se, Chen v. INS , 95 F.3d 801 ( 9th Cir. 1996), dealt with a rule that was withdra wn before its publication in the F ederal Register. According to the Ninth Circuit ’ s opinion , President George W. Bush ’ s Attorney General “ signed a final rule ” o n January 15, 1993. See id. at 804. U pon President Clin to n ’ s arrival in office, a me morand um was circulated directin g that all non

publ i shed regulations to be withdrawn. But “ [t] he January 1993 Rule was scheduled to take effect on the date of publication in the Federal Re gister

. ” Id. The Ch en c ourt concluded that in light of this fact, and a s t he rule was wi thdrawn, never published, an d neve r resubmitted, “ it has no legal effect and is not binding on this court

. ” Id. a t 805. The c ourt d id not clarify a t what16

stage the 1993 Rule was in the process ( i.e. , whether it was in confidential processin g or had been posted by the OFR for public inspection ) . But the fact that the Court acknowledged there

was a “ signe d . . . final rule, ” cit ing to an Attorney Gene ral Order, demonstrates that the rule was likely available to and known by th ose outside the Attorney Gener al ’ s O ffice

. Nevertheless, t h e

c ourt did not conclude that the rule was “ final ” merely because it had been put out by the government as such . R athe r , the rule was not final because it was not slated to take effect until publication, and it was never publ ished. See id

. (noting that a signe d d o cument ident ified as a

“ final rule ” had no binding effect when it was withdraw n prior to publication). So too here. S everal of t he 2017 R ule ’ s provi sions were not scheduled to take effect until thir ty days af

ter publication in the Federal Register. Chen wo uld counsel that by their terms, these provisions never became effective. S ee id. A nd a lth ough other provisions of the 2017
Ru le were given a date certain , January 1, 2018, for effectiven e ss , the C o urt cannot con clude that this is because the agency int ended th ose provisions to go into effect regardless of whether the
2017 Rule was published

. Instead, it is more likely that the agency recognized tha t these portions of the rule “ would require additio nal phase

- in time

. ” ( See Compl. ¶ 84.) Like in Chen , th e 2017 Rule “ was withdrawn f rom publication . . . [and] neve r subsequently published, ” 95 F.3d at 805 , and so it did not become a binding legislat ive rule requ iring further pro cess before it could be changed. See also Kennec ott , 88 F.3d at 120 8 (concluding that a ru le was not unlawfull y repeal ed by subsequent agency actions for “ the simple reason that . . . [it] never became a binding rule requirin g repeal ” ).
A s defendants point out, “ [u] nder Plainti ffs’ theory, awareness of a signed pre

publication rule would always make the rule enfor ceable

. ” ( See Def s. ’ Reply at 12 (emphasi s adde d) , ECF No. 25 .) Plaintiffs cite a press release posted by defendants “ titled, ‘ USDA17

Announces Changes Aimed at Ending the Inhumane Practice of Horse Soring, ’

. . . linking to a PDF with the complete text of the Final Rule, inc luding the label ‘ Final Rule , ’ and the authorized signature of the agency

. ” ( See Pls. ’ Opp. at 5.) While t his certainl y sounds like a co nclusion t o the agency process , imagine the following situation : the Secretary approve s a press rel ease including the so - called “ final rule, ” but later de cide s the rule require s several changes. However, despite the Secretar y ’ s conclusion that the rule needed chang es, the press rel ease was posted on the agency ’ s web site for several minutes

. A ssuming that at l east one pe rson view ed the press release, would the agency be obligated to g o forward with publishing the rule as it w as posted , merely because it had appeared on the website

—however briefly

— as “ final ” ? T h is ca nnot be what the AP A compels , n or as a matter of policy does it make sense to have such an ill

- defined, as opposed to bright

- line, test.

b
. Oth e r Case Law
The remaining c ases cited by plaintiffs do n ot change the Court ’ s conclusion that withdrawal du ring the pu blic inspection period ( like withdrawal durin g the con fidential processing period, as was ap proved in Kennecott ) is permissible. The first categor y of c ases plaintiff point to are a variety of pre - publication, actual

- notice cases. ( See Pls. ’ O pp. at 26

- 27.) In these cases, courts uniformly hold that for enfor cement purposes the unpublished rule is effective as to those in dividual s w h o have actu al notice

. See , e .g., Kessler v. FCC , 326 F.2d 673 , 690 (D.C. Cir. 1 963 ). In fact, plaintiffs state that they “ are not aware of any case in a comparable proc edural posture that was not held to be final. ” ( See id. at 27 (emphases in original) .) This is unremar kable given that, as Judg e Lam berth stated, “ § 552(a)(1) ’ s publication requirement is s ubject to an express exception for actual notice. ” Tex as Alliance for
Home Car e Servs. , 811 F. Supp. 2d at 103. In these cases, while the rule has for some reason not18

yet been publis hed, the a gency still treats it as final

. As a result , the se opinions say nothing about whether “ [ any ] thing in th e text of the FRA, APA, or FOIA suggests th at having actual knowledge of a rule means that the rule is fina l and effective if the agency does no t enfo rce it as such

. ” ( S ee Def

s. ’ Reply at 14 .) Here, not only was the 2017 Rule not published, but also the defendant s have not treat ed it as f inal. C ases where the agency itself choose s to enforce a rule cannot be used as support for the pr oposit ion that a n agency must enforc e an unpu blishe d, un

finalized rule.
A trick ier case within this cat egory is A rlington Oil Mills , Inc. v. Knebel , 543 F.2d 1092 ( 5th Cir. 1976 ), in which the Fifth Circuit concluded that the Secretary of Agricult ur e violated the AP A b y failing to provide notice and an opportunity to comment when he changed 1976 peanut supp ort differentials from the previously announced levels due to pressure from certain industry groups . See id. at 1100

. Neither the March 197 6 announcement , ruled procedurally valid by t he Court, no r the subsequent announcement in July 1976 , ruled inval id, were published in the Federal Register. The Fi fth Circ uit rejected the defendants ’ argument that this meant the
earlier announcement was no t final action requiri ng a formal repeal, s ta ting that “[ t] he lack of formal publication does not preclude the e ffectiveness of an otherwise valid agenc y action

. ” Id.

a t 1099. Because all parties knew about, and participated in, the March 1976 announceme nt ’ s promulgation, “ ne ither the Department ’ s failure to p ublish its March 19 announcement in the Federal Registe r nor its failure to publish a basis and purpose statement render the announcement ineffective as to the parties in this litigation

. ” Id. at 11 00. Of course, this i s a single , out

- of

circ uit opinion that is over forty years old. Moreover, the result in this decision appears driven primarily by the Fi fth Circuit ’ s con cern about th e Secretary of Ag riculture ’ s behavior

—

“ [d] epartment officials ’ rep eated assurances that the March 19 announceme nt would rem ain in19

force

. . . effectively prevented the plaintiffs ’ participation in the decisionmaking process either by off ering evidence supportive of its own position or in rebuttal to any contrary p osition s . ” Id. at 1099. Whi le all concerned partie s were consu lted about the March decision, the July decision was dr iven primarily by just one group of growers attempting to h ave the Secretary act in their favor. Here, on the other h and, there were no such machinat ions

. There wer e not months of discus s i ons with certain industry participants while others were kept out of the loop by the government ’ s insistence that no rule was changing. Instead, the 2017 Ru le was withdrawn only two weeks after its a nnou ncem ent and before its final publication, as part o f a new

a dmin istration ’ s reconsideration of ru lemaking priori ties throughout its executive agencies

. The situation at issue i n Arl ington Oil Mills is th us clearly dist inguish able fro m the withdraw al of the
20 17 Rule

. The next s et of cases cited by plainti ffs hav e to do with the so

- called “ rac e to the courthouse. ” See, e .g., C ity of Gallup v. FERC , 70 2 F.2d 1116 , 1118 (D.C. Cir. 19 83) ( “ The parties have given their best effor t to the race, employing walkie

- talkies, long

- distance phone line s, split

- second t iming and cautious repet ition

. ” )

. In these cases , parties attempt to file the
f irst petition for review of an a g ency action so that it may be reviewed in the court of their choice. See id. While the Cour t of Appeals recognized in these cases that pre - pu blication action may be deemed “ official action, ” see Saturn Airways, Inc. v. Civil Aeronautics Bd. , 47 6 F.2d 90 7 , 909 (D.C. Cir. 19 73) , this was in the context of de terminin g when exactly an agency order

was “ issued ” such that a challenge could properly b e init iated under 28 U.S.C. § 2112. Again, howev er, th e se are not the sort of cases where an agency h as backed away from a previous ly

a nnounced course of action. Nor was th e Court of Appeals analyzing when a rule be comes final such that i t requires a for mal repeal under the APA. The Court thus cannot conclude that the se20

“ race to the courthouse ” cases prov ide any insight in to the pro priety of a situation in which an agency has chosen to withdraw an unpublished rule. Plaintif fs next po int to what the Court refers to as “ qu orum cases. ” ( See Pls. ’ Opp . at 2 8

- 29.) In these cases , the agency r eleases a rule ( or order ) , but befor e it become s final, the agency loses the necessary qu or um for it to be valid. In Nation al Associa tion of Manufacture r s v. NLRB , 717 F.3d 947 (D.C. Cir. 2013) , overruled on other groun ds by Am. Meat Institute v.
USDA , 760 F.3d 18 , 23 (D.C. Cir . 2014) , for example, the NL RB had a valid quorum at the time
its rule was filed with t he OFR, but by the time the rule was published , the Board l acked a
quorum. S ee i d. at 952

- 53. Having question ed sua spon te whether th e lack of a valid quorum

was a jurisdictional issue, the Court of Appeals assumed, without deciding, that “ the date of filing is the relevant time for determining whethe r the Board had a valid quorum ” a nd thus there was no issue. I

d. at 953 . This was because “ [o] nce the rule was filed with the Office of the Federal Register, the Board had taken all the steps necessary to issue the rule

— there was nothing
left for the Boa rd to do. ” I d. ; see also Braniff Airways v. Civil Aer ona utic Bd. , 379 F.2d 453 , 459 (D.C. Cir. 1967) ( “ In our view it is plain that once all members have voted for an award and caused it to be issued the o rder is not nullified because of incapacity, intervening befo re the ministerial act of service, of a member needed for a quorum ”) T h e C o urt of Appeal s ’ “ nothing left for the [a gency] t o do ” language , w hich could suggest that filing with OFR i s the oper ative

mome nt for finality of a rule , does not square wit h Kennec ott ’ s allowance for with draw al during
the confi dentia l proces sing period. However , Kennecott and National Associati on of Manufa cturers look ed at “ finality ” fr om two very different perspectives. The la tter was concerned with a n action that t he agency cont inued to stand behind, but may have been without
powe r to do , depending on when the action was con s trued to have been affected

. The Court thus21

concludes that when a rule was “ issued ” for purposes of de termining jurisdiction does not determine when a pre - p ublication rule is final for purposes of the APA

. Pla intiffs ’ remaining citation fare s no better. In Co ns umer Energy Coun cil of Am. v. FERC , 673 F.2d 425 (D.C. Cir. 19 82), the Court of A p peals an al yzed a FERC rule promulgated

u nder the National Gas Policy Act of 1978, which allowed for either the House of Representatives or t he Senate to di sapprove of certain FERC rule s within thirty d ay s of their
passage . See id. at 433. In this case, FERC passed a ru le, but the House disapproved it; over industry objec tions, FERC revoked the rule with n o further notice a nd comment procedures

. See id. at 433

- 34. But the rule in q ue stion there was published, and the agency did intend for it to be
fi nal, absent congre ssional veto. The conclu sion that such a rule

— one tha t was published and considered final by the agency

— re quired notice and comment to be changed or revoked is
uncontrov ersial. There is no similarity between th e Court of Appeal s ’ conclusion there that th e AP A required a formal repeal of FERC ’ s rule and the s ituation in thi s case .

3. Conclusion
As described above, neither the statu tory framework of the APA nor any cas e s cited by the parties supports a rule that prevents agenc ies from withdrawing rules p rior to thei r publication in the Federal Register . Wh ile the APA does allow for enforcement of unpubl ished rules against individuals with actual notice, t he law does require that rules be published

. Moreover, the Court is con vince d that K ennecott control s here, d esp ite the fact that the 2017 Rule was at the public inspection stage, rather than at th e confiden tial processing stage. As was held in Chen v. INS , a signed, purportedly final rule that is withdrawn and n ever published has no legal effect , see 9 3 F.3d at 805 , and t h e C ourt sees no reason why this w ou ld not be true regardless of whether the public is aware of the rule ’ s ex istence or not. To hold otherwise22

“ improperly shifts the focus of the statutes away from the decision of the regulating agency

. . . and, instead, to the preferences of outside par ties. ” ( See Defs. ’ Reply at 12.) And , p l aintiffs
po int to no factually similar case in which a court required an agency to enf orce a n unpublished rule that the agency did not itself wish to enforce . For all the forgoi ng reasons, the Court

con cludes that the 2017 Rule never became “ fi nal ” such that the AP A required its form al repeal , and as a result, plaintiffs ’ first two causes of action must be dismissed.
B . Moving the 2 017 Rule to the “ Inactive ” Li st Plaintiffs nex t argue that defendants violated the AP A by moving the 2017 Rule to t he

“ inactive list ” without notice and comment or reasoned explanation. Defe ndants contend that moving the 2 017 Rule to the “ inactive list ” is not “ final agency action ” th at this Court ca n r eview or, alternatively, that if it does cons titu te final agency action , it did not violate the APA. Th e Court agrees. T he APA pro vides for review of “ final agency action

. ” See 5 U.S .C. § 704. For a gen cy action to be final, it must (1) “ mark the con summation of the agency ’ s decisionma king process , ” and (2) “ must be one by which rights or obligations have been determined, or from which legal consequences wil l flow

. ” Bennett v. Spear , 520 U.S. 154, 178 ( 1997 ) (internal quotation marks omitted). If ei ther p rong is lacking, the Court may not r eview. See Soundboard Ass ’ n v. FTC , 888 F.3d 1261 , 1267 (D.C. C i r. 2018) ( “ Because each prong of Bennett mu st be satis fied independently for agency action to be final, deficien cy in either is sufficient to deprive [the plaintif f] of a cause of actio n under the APA

. ” ). Defendants contend that neither requirement is

met her e . At the outset, c alling something “ inactive ” b y its very terms indicates a non

- fina l decision , particular ly when contra st ed with the other la bel that the 2017 Rule might have be en23

given

— i.e. , “ complet ed acti on . ” ( See Mot. to Dismiss at 23 ( “ If USDA ha d made a final decision to ‘ r everse ’ their position, a s Plaintiffs contend, they could have designated the 2016 Rulemaking as a ‘ Complet ed Action, ’ w hich includes rulemakings that h ave been ‘ withdrawn ’ or are otherw ise at the end of their rulemaking proces s. ” ).) P laintiffs contend that because “ USDA communic ations

. . . make clear that the Agency does not intend to remove the [2017 Rule] from the Inac tive List ” (Pls. ’ Opp. at 35), p lacing the action on the “ inactive ” list amounts to a de facto consummation of defendant s ’ decisionmaking process, even if “ inacti ve ” would not usually have such a connotation of finality. ( See id. at 3 4

- 35 (citing Friedman v. FAA , 841 F.3d 537 , 542 (D.C. C ir. 2016) ( “ [T] his Court has repeatedly noted the applicable test is not whether there are further administrative proceedings av ailable, but rather whe ther the impact of the order is sufficiently final to warrant review in the context of the particular c as e.” (internal quotation

marks omitted))).) The C ourt need not analyze d efendants ’ pu blic statements to determine whether placement of the rule on the “ inactive ” list is the consummation of the decisionmaking process , how ever, because it concludes that p utting the rule on the “ inactive ” list is not an action “ fro m which legal consequences will flow. ” See Bennett , 520 U.S. at 178 (internal quotation marks omitted) ; see also Sou ndboard Ass ’ n , 888 F.3d at 1267 ( holding that if either prong is missing,
agen cy action is not final). As concluded ab ove , see Section III.A, supra , the 2017 Rule never beca me final . And , w ithdraw al of a document that never had any legal effect canno t alt er a party ’ s rights or obligations. Cf. Kennecot t , 88 F.3d at 1207 (concludi ng that the agency ’ s

“ decision to withdraw the document did not alter substantive legal obligation s u nder prev iously published regulations ” ). 2 As a result, plaintiffs ’ third cause of action must be dismissed.

2 Similarly , e ven if the Court conclude d that putting the 2017 Rule on t he “ inactiv e ” list24

IV . REMAINING CLAIMS A. F ed eral Register Ac t C laim Plaintiffs argue that the OFR violated the APA, the FRA, and its own regulations by

“ faili ng to publis h the Final Rule after it was posted for public inspection for a reason other than

error - correction ” and “ assigning a publication date of Tuesday, Ja nu ary 24, 2017, instead of Monday, J anuary 23, 2017

. ” (Compl. ¶¶ 119, 120 .) Defendants respo nd with a var iety of challenges, ar gu ing that plaintiffs lack standing, that the Court cannot grant relief, and that OFR complied with both statutory and regul ato ry requirem ents

. First, the Co urt concludes that it lacks jurisdiction over plaintiff s ’ claim regarding 1
C .F.R. § 17 .2 , as plaintiffs have failed to allege injury ( or causation ) stemmi ng from the purported violation. 1 C.F.R. § 1 7.2 (c) prescribes the “ regula r schedule for filing for public inspecti on and public ation

. ” Assumi ng that the 2017 Rule was assigned to the “ regul a r schedule, ” it was posted for public inspection on Thursday, January 19, 2017, and should have been scheduled for publication on Mo nday, January 23, 2017 , as F riday, January 20, 2017 , was a fede ral holiday

. See id. However, for some unknown reason, OFR scheduled it for publica tion on Tuesday, January 24, 2017. Plaintiffs argue that “ [t] his rule is not ambiguous [, and] 1 C.F.R. § 17 .2 provides no ro om for agency discretion in its application , ” meaning OFR violated the regulation when it scheduled the 201 7 Rule for publication one day late r than the regulation required . ( See Pls. ’ Opp. at 39.) As defendants argu e , “ Plaintiffs’ alleg ed harm could hav e occurred regardless of the agency’s supposed error

. ” ( Mot. to Dismiss at 26.) This is b ecause

ev en if the 2017 Rule had been scheduled for publication on Monday, January 23, 2017, as the

cons titu ted a reviewable , final agency action, such an action would not be a violation of the APA. As the Court conclu d ed above, the 2017 Rule never be came final. Therefore, to shelve it inde fini tely as “ inactive ” would require no proc ess under the APA

.25

regulati o ns required, the incoming administratio n still wo uld have had time to request the rule ’ s withdraw al (as F riday, January 20, 2017 was the I nauguration Day )

. P la intif fs do not rebu t defendant s ’ assertion that they have not demonstrated standing as to this claim. Second, the Court agrees t hat p laintiffs ’ arg ument regarding 1 C.F.R. § 18.13 fails to state a cl aim. 1 C.F.R. § 18.13, which provides for withdrawal o f a rule after i t has been pos ted for public inspection, is as follows: A document that has been filed for public inspection with the O ffice of the F ederal Register but not yet publish ed, may be withdrawn from publication or corrected by the submitting age ncy. Withdrawals or minor corr ections may be made with a timely letter, signed by a duly authorized representative of the agency. Exten sive correctio ns may require agency withdrawal of the document from publication

. Id. § 18.13(a). Plaintiffs argue that d efendants violated this regula tion because “ OFR permitted USDA to withdraw the [201 7 Rule] for a reason other than error correctio n . ” (Pls. ’ Opp. at 40.)
H o wever, the text of the regu la tion belies such a n arrow reading

— the re gulation provides that rule m ay be “ withdrawn from p ublication or corrected by the submitting agency. ” 1 C.F.R. § 18.13 (a) (emphasis added). More over, it provides no limitation on what the reasons for withdrawal are . The Court cannot conclu de that by sta ting that “ [e ]xtensive corrections may require agency withdrawa l , ” id. , the regulation mean s that o nly extensive corrections provide justification for withdrawal

. Rather , the agency simply recognized that some correct ion s may be so extensive that they require withdrawal and re

- sub mi ss ion, rather than a “ timely letter ” laying

ou t the “ minor correct ions. ” See Perry , 940 F.3d at 1077 ( “ [R] egulations governing the Offi ce of the Federal Register generally permit an agency to w ithdraw a final rule even after it has been submitted to the Office for publication, so long as the rule h as not yet been published

. ” )

. Moreover, the Court concludes that such a r eading does not vi olate either the AP A or the FRA. As decided above, a rul e is generally not final under the AP A prior to its publi cation in the26

Federal Register

— as a result, with dr awal of such a rule prior to publication does not permit an agency to run a foul of APA proce dures for rep eal of finalized rules. T he FRA provides th at the
OFR “ shall transmit immediately to the Government Publishing Office for printi ng ” all rules it recei ves for publ ication. See 4 4 U.S.C. § 1503. Like the Court of Appeals in K ennecot t , however , the Court agre es with defendants that permitting agenci es to withdraw rules prior to publication “ helps assure t hat regulations appearing in the Federal Register are as correct as possible in both form and substance , ” while also “ impos [i ng] discipline on agencies and on the OFR, thereby assuring that the work of publishing the government ’ s regulations proceeds in an orderly fashion

. ” See Kennecott , 88 F.3d at 1206 . Again , the Court discerns no reason why release for p ubli c inspection sh ould change the r esult here

— while it does extend the period du ring which a gencies may withdraw, such a period is still “ relatively brief. ” See id. For example , under the regula r p ubli shing schedule, OFR regulations provide for one day between public insp ection and public ation. See 1 C.F.R. § 17.2

. This regulation thus remain s “ consistent with the statute ’ s purpose

— establishing an orderly process for filing and publishing governme nt regulations

. ” Kennecott , 88 F.3d at 1206. As a result, plaintiffs ’ fourth claim also mu st be dismissed.
B. Horse P ro tection Act Claim Lastly, pla intiffs argue that “ [ b] y repealing the [2017 Rule] and le aving in place the HPA Regulations long recognized as wholly inadequate to prevent horse soring, U SDA and APHIS are acting co ntrary to the s tatutory mandate of th e HPA to end horse soring and exceedi ng the authority granted by the HPA

. ” (Compl. ¶ 125.) T hey point to the OIG Report and the findings that accompanied the 2017 Rule, both of which concluded that “ the current r egulations have fail ed to enforce the HPA

. ” ( See Pls. ’ Opp. at 44.). Bec ause plaintiff s cannot “ seek wholesale27

improvement of [de fendants ’ ] program by court decree , ” Lu jan v. Nat ’ l Wild life Fed ’ n , 497 U.S.

at 891 (emphasis in original), this c laim must also fail. Plaint iffs argue that they are not attacking th e government ’ s HPA program in general , but have a lleged a specific agency action that has caus ed them harm

— repeal of the 2017 Rule. But as the Court concluded above, th e 2017 Rule was never finalized such that it r equired repeal. As a result , plaintif

fs ’ argument amount s to no more than the idea “ that violation of the law is rampant ” under the current HPA regulations. See id .; ( see also Def s. ’ Reply at 25 ( “ Plaintiffs’ characterization is no more than an attempt t o disguise a wholesale progr ammatic attack as something less than it is. ” )). Under Supreme Court precedent, s uch a claim fails as a m atter of law. See Lujan , 497 U.S. at 891 ( stating that a plaintiff “ c annot seek wholesale improvement of [a ] program by c ourt decree, rather than in the offices of the Department or the halls of Congress,

w here programmatic improvements are normally mad e . ” (emphasis in original)). CONCLUSION For the foregoing reasons, the Court will grant defendants’ motion to dismiss

. A separate Order accom panies this Memorandum Opinion.

_ ______________________ ELLEN S

. HUVELLE United States District J udge

Date: Jul y 27, 2020