Veneman

Order; Concurrence by Judge BYBEE; Partial Concurrence and Partial Dissent by Judge THOMAS.

ORDER

Appellant’s motion to dismiss is GRANTED. The appeal is DISMISSED with prejudice, each party to bear its own costs. The opinion of the three-judge panel, reported at 469 F.3d 826 (9th Cir.2006), is VACATED.

with whom CALLAHAN, Circuit Judge joins, concurring:

I concur in the dismissal of the appeal pursuant to Fed. R.App. P. 42(b) and in the vacatur of the panel opinion. I write separately because I believe that this situation presents a very different set of considerations from the cases discussed in Judge Thomas’s partial dissent.

This case involves a challenge to the United States Department of Agriculture’s (“USDA”) decision not to adopt a draft policy that would have provided- guidance to various regulated entities on the treatment of nonhuman primates under the Animal Welfare Act. When USDA ultimately decided to abandon the draft policy, the Animal Legal Defense Fund (“ALDF”) filed suit alleging that USDA’s decision was arbitrary, capricious, and an abuse of discretion. The district court granted USDA’s motion to dismiss, and ALDF timely appealed. Over a vigorous dissent, a…