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PETA defends standing to block NIH funding of animal sepsis research

An animal rights group this week defended its standing to seek a court order blocking the National Institutes of Health from experimenting on rodents to find a cure for sepsis, saying the legal battle is based on its opposition to unlawful government spending and not just its animosity toward such experimentation.

People for the Ethical Treatment of Animals, or PETA, alleges Bethesda-based NIH concluded nine years ago that the experiments are futile because rodents do not experience sepsis.

However, NIH has “arbitrarily and capriciously” continued to grant $10 million annually to animal research to combat the infection-related disease that kills 270,000 Americans per year, PETA stated in its lawsuit filed in U.S. District Court in Greenbelt.

NIH denies the allegation and has moved for dismissal of the case, saying PETA lacks standing to sue because its claim is rooted in its desire to protect animals and not on a financial or other cognizable injury.

In response, PETA acknowledged its opposition to the experimentation but stated its claim for redress is based on what it called NIH’s violation of the federal Administrative Procedure Act by authorizing funding without a reasonable scientific basis.

NIH is “not focusing on the correct injury,” PETA’s attorneys wrote in papers filed Wednesday with the district court.

“PETA’s injury is not caused by animal sepsis experiments in the abstract but by defendants’ illegal funding of such experiments,” wrote Billy B. Ruhling II and Jonathan R. Mook. “Accordingly, halting the funding of such experiments exactly remedies PETA’s injury. The mere fact PETA would be pleased if its core mission advocacy succeeded in convincing private persons to refrain from animal-sepsis experiments does not affect the redressability analysis.”

Ruhling and Mook are with DiMuroGinsberg PC in Alexandria, Virginia.

The federal Centers for Disease Control and Prevention has defined sepsis as “the body’s extreme response to infection.” Each year, the disease afflicts 1.7 million Americans, including one in three patients who die in a hospital, according to the CDC.

PETA, in its lawsuit, stated that NIH has funded animal research to combat sepsis since at least 1985.

In 2013, then-NIH Director Francis Collins stated that the inability to find a cure was not because “wonder drugs designed for the mice failed in humans” but because the drugs “were, in fact, treating different conditions,” a statement PETA has interpreted as NIH’s acknowledgment that animal research for a sepsis cure is futile.

“For NIH to acknowledge this in 2013 yet continue to award grants for animal-sepsis experiments that it knows are inherently ill-suited to develop a treatment for sepsis in humans is arbitrary, capricious, an abuse of discretion, not in accordance with law, and in excess of statutory jurisdiction, authority, or limitations within the meaning of the Administrative Procedure Act,” the Norfolk, Virginia-based PETA stated in its lawsuit filed in September.

In its motion to dismiss, NIH stated in April that PETA’s opposition to animal research does not give the organization standing to sue.

“It is fundamental that a party does not have standing to challenge the federal government’s spending merely because that person or organization considers it to be a waste of taxpayer dollars,” Assistant Maryland U.S. Attorney Patrick G. Selwood wrote on behalf of NIH.

“And while there are avenues for organizational plaintiffs to establish standing, particularly where government regulation has directly hampered an organization’s mission, such avenues are not available to PETA,” Selwood added. “There is no allegation – let alone a plausible one – that (NIH’s sepsis) research grants have caused a financial strain or drain on organizational resources so severe that PETA – the ‘world’s largest animal rights organization’ – has been left perceptibly impaired and unable to accomplish its mission.”

PETA responded that NIH’s alleged violation of the Administrative Procedure Act substantially limits the group’s ability to “carry out its core organizational mission” to protect animals against harm.

“Egregious, public, systematic violations of law concerning animals force PETA to divert resources to address illegal conduct even though most human-caused animal suffering in the United States is a result of technically legal human conduct toward animals,” Ruhling and Mook wrote.

“Resources spent challenging illegal conduct are resources that cannot be used by PETA to execute its ordinary-course charitable activities targeting legal conduct,” they added. “PETA has adequately pleaded an injury-in-fact, and accordingly, the court should deny the defendant’s motion.”

U.S. District Judge Paul W. Grimm, who is presiding over the case, has not stated when he will rule on NIH’s motion to dismiss.

The case is docketed in U.S. District Court in Greenbelt as People for the Ethical Treatment of Animals Inc. v. National Institutes of Health et al., No. 8-21-cv-02413-PWG.