United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 20, 2022 Decided July 22, 2022 No. 20-5291 HUMANE SOCIETY OF THE UNITED STATES, ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02458) Caroline A. Flynn argued the cause for appellants. With her on the briefs were Ralph E. Henry, L. Allison Herzog, Roman Martinez, and Julia A. Hatcher. H. Thomas Byron III, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Sushma Soni, Attorney. Before: TATEL ∗, MILLETT, and RAO, Circuit Judges. ∗ Judge Tatel assumed senior status after this case was argued and before the date of this opinion. 2 Opinion for the Court filed by Circuit Judge TATEL. Dissenting opinion by Circuit Judge RAO. TATEL, Circuit Judge: At the culmination of a five-month rulemaking, the Department of Agriculture announced a final rule designed to protect show horses from abuse. As required by the Federal Register Act, the agency transmitted the signed rule to the Office of the Federal Register, which made it available for public inspection. But on the day President Trump took the oath of office, his Chief of Staff directed executive agencies to withdraw all pending rules. The question in this case is whether an agency must provide notice and an opportunity for comment when withdrawing a rule that has been filed for public inspection but not yet published in the Federal Register. We hold that it must. I. The rule at issue in this case marks the latest effort in a fifty-year campaign to end the “soring” of show horses. To sore a horse means to cut, burn, or otherwise inflict pain on its legs to alter its natural gait. This form of abuse became a common method to “create[] artificially” the “distinctive ‘walk’” of Tennessee walking horses popular in exhibitions without laborious and expensive training. H.R. Rep. No. 91-1597, at 2 (1970). In 1970, Congress enacted the Horse Protection Act to bar the showing or sale of any horse subjected to a “cruel or inhumane method or device” “for the purpose of affecting its gait.” Pub. L. No. 91-540, § 2, 84 Stat. 1404. The statute sought both to ensure humane treatment of horses and to prevent unscrupulous trainers from “compet[ing] unfairly” with those who opted to train their horses rather than torment them. 3 Id. § 3. It directed the Secretary of Agriculture to conduct inspections as necessary to enforce these prohibitions. Id. § 5. The 1970 Act did little to abate mistreatment. In particular, the “limited resources available to the Department of Agriculture” allowed it to inspect horses at only a handful of the several thousand exhibitions each year. H.R. Rep. No. 94- 1174, at 5 (1976). To bolster the Department’s enforcement capabilities, Congress amended the Horse Protection Act in 1976, authorizing the agency to …
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