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APHIS RULE & AKC LEGAL STANDING
Legal rationale on why AKC must fight APHIS rule and hobby breeder legal option if AKC fails to do Due Diligence.
Oct 8, 2013 | TheDogPress Club News
Frank Losey, Pentagon Attorney, retired
Why I believe the AKC has "Legal Standing" and should file for an injunction.
BACKGROUND: I have received hundreds of E-Mails asking what can be done to stop APHIS from enforcing the "Final Rule" on "Retail Pet Stores" that was published in the Federal Register on September 18, 2013. Most of the E-Mails were sent to me by AKC Hobby Breeders, and most asked why I have stated that if the AKC took the lead and filed for an Injunction on behalf of all AKC Hobby Breeders that sought to stop APHIS from enforcing the APHIS Rule, the chances of success would be increased.
(Some) asked why I stated that the AKC had "Legal Standing - - if it decided to assert it - - to seek … a Federal Injunction, while others have stated that the AKC does not have "Legal Standing" to seek such an injunction on behalf of all AKC Hobby Breeders.
Since the effective date of the APHIS Rule is November 18, 2013 - a Monday - any effort to obtain a Federal Injunction needs to be filed NLT Friday, November 15, 2013.
To the best of my knowledge, the AKC has not explicitly stated that it would not seek an injunction, but it has never said that it would. Many AKC Hobby Breeders have received "form letter" responses to their requests (asking) AKC to seek a Federal Injunction. Further, Mr. Julian Prager, NAIA’s "Legal Analyst and Legislative Coordinator," has authored an opinion that stated that the AKC does not have "Legal Standing" to seek a Federal Injunction … because he believes that none of the AKC Hobby Breeders are "Members" of the AKC.
I respectfully disagree with Mr. Prager's assessment that the AKC does not have "Legal Standing" for the reasons as set out below. (Editors Note: for those who have not yet read Mr. Losey’s detailed legal argument, click here for ii 12 reasons why AKC has “Legal Standing” and Legal Responsibility to do so.
QUESTION 1: If the AKC decides not to file a Lawsuit that seeks an Injunction, do AKC Hobby Breeders have "Legal Standing" to file for an Injunction.
Yes. They are one of the major "Targets" of the APHIS Rule, and they will be directly affected, financially, legally and emotionally by the APHIS Rule. However, the following issues and "risks" must be considered.
ISSUE 1: As a practical matter, no single AKC Hobby Breeder has the financial wherewithal to fund the filing of such a Lawsuit. Thus, it would require a large number of Breeders to step forward to pay the expenses associated with filing a Lawsuit against the USDA - - the United States Government!
ISSUE 2: If only a few AKC Hobby Breeders were listed as Plaintiffs, the practical likelihood of success would be minimal because the Government would inevitably argue to the Court that the impact would be minimal because only a few of the 1,000s of Hobby Breeders claimed they would be adversely affected by the APHIS Rule.
RISK 1: The AKC Hobby Breeders who would be willing to have their names listed on the Lawsuit as Plaintiffs would become immediately known to Animal Rights Organizations such as the HSUS and the ASPCA, and would become potential "targets" for harassment and "anonymous" complaints that could result in Law Enforcement and Animal Control Officers entering your homes; confiscating your animals; arresting you; charging you with violating animal cruelty laws and ordinances; and if convicted, being barred for life from ever owning a dog again.
RISK 2: There is a distinct possibility that the homes of the AKC Hobby Breeders who listed themselves as Plaintiffs would go to the top of the List for APHIS Inspections.
THESE ISSUES AND RISKS FOR INDIVIDUAL AKC HOBBY BREEDERS WOULD NOT ARISE IF THE AKC FILED A LAWSUIT ON BEHALF OF ALL AKC BREEDERS (seeking) A FEDERAL INJUNCTION to BLOCK THE APHIS RULE. SUCH ACTION BY THE AKC WOULD VALIDATE ITS CLAIM TO ALL AKC HOBBY BREEDERS AND "CLUBS" THAT IT IS "WORKING TO PROTECT THE RIGHTS OF ALL DOG OWNERS" AND THAT IT WILL "FIGHT BAD DOG LAWS."
QUESTION 2: Can a Class Action Lawsuit be filed to stop the APHIS Rule?
No. Typically, a Class Action Lawsuit is filed on behalf of a large class of people who have a potential monetary claim against one or more defendants. In the case of the APHIS Rule, the intent of a Lawsuit that seeks a Federal Injunction is to stop the APHIS Rule from creating harm that may have adverse financial consequences. In short, STOP THE POTENTIAL HARM BEFORE IT OCCURS.
This Question does raise a collateral and potential issue that AKC should consider during its "due diligence" review of whether or not it should file a Lawsuit on behalf of all AKC Hobby Breeders.
"DUE DILLIGENCE" ISSUE FOR THE AKC TO CONSIDER: If the AKC rejects the requests of 1,000s of AKC Hobby Breeders to file a Lawsuit on their behalf … (AKC) will it open itself up to a potential Class Action Lawsuit being filed by a Class of AKC Hobby Breeders against the AKC for creating false expectations in the minds of AKC Hobby Breeders who relied upon its representations, and cumulatively paid Tens of Millions of Dollars each year to the AKC in the form of Registration Fees?
Legal representations that were made include:
Consequently, if a Class Action Lawsuit were filed against the AKC by disgruntled and disappointed AKC Hobby Breeders, the AKC would be forced to address the issue of why none of the Registrations Fees that it collected were used to protect the AKC Hobby Breeders from the financial, legal and emotional harm that they incurred as a result of the failure of the AKC to challenge the APHIS Rule. If the AKC were unable to refute such claims, it could result in a Judgment in the amount of Millions of Dollars being awarded to the Class of AKC Breeders who paid their Registration Fees in "Good Faith."
QUESTION 3: If the AKC decided to file a Lawsuit that sought a Federal Injunction, would you provide to AKC your Legal Analysis as to the reasons why an Injunction should be granted?
ANSWER is ABSOLUTELY YES!!!!!
USDA-APHIS Hobby Breeders Inspection (thought we stopped it...)