UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 474-73).
Leventhal and Robinson, Circuit Judges, and Jack R. Miller,* Judge, United States Court of Customs and Patent Appeals.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
Hal Haviland owns and operates a professional animal act in which dogs and ponies are featured. *fn1 The act is presented to paying audiences in a number of states *fn2 and has occasionally appeared on commercial television. *fn3 In the view that Haviland was an "exhibitor" as defined by the Animal Welfare Act of 1970, *fn4 the Department of Agriculture gave notice that he was in violation of its licensing provisions *fn5 and that proceedings might be instituted to compel compliance. *fn6
To avoid the risk of possible penalties, *fn7 Haviland obtained an exhibitor's license. *fn8 He then brought suit in the District Court against the Secretary of Agriculture for a judgment declaring that he was not subject to regulation under the Act. *fn9 The court granted summary judgment in favor of the Secretary *fn10 and Haviland now appeals.
Reversal is urged on several grounds. Haviland asserts that the Act, properly construed, does not extend to his dog and pony show, and that inclusion of animal acts in the Secretary's implementing regulations is an unconstitutional usurpation of legislative power. *fn11 He further contends that the Act exceeds congressional power under the Commerce Clause *fn12 and discriminates invidiously in contravention of the Fifth Amendment's Due Process Clause. *fn13 We affirm. I
In 1966, Congress enacted the Federal Laboratory Animal Welfare Act *fn14 "to deal with the abuses that have developed as a result of the Nation's vast program of medical research," *fn15 particularly research involving experimentation with animals. *fn16 The Animal Welfare Act of 1970 expanded the coverage of the 1966 statute to enlarge the class of protected animals and to regulate their use for exhibition purposes or as pets as well as their use for research purposes. *fn17
The Secretary claims that Haviland is subject to the Animal Welfare Act as an "exhibitor," defined by the Act as
any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country [sic] fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be ...