587 F.3d 986 (9th Cir. 2009), 08-16441, Levine v. Vilsack

Docket Nº:08-16441.
Citation:587 F.3d 986
Opinion Judge:WU, District Judge:
Party Name:Ellen LEVINE; Beverly Ulbrich; Krista Kielman; Gretchen Wallerich; Kanda Boykin; Humane Society of the United States; East Bay Animal Advocates; Western North Carolina Workers' Rights Center; Mississippi Poultry Workers for Equality and Respect, Plaintiffs-Appellants, v. Thomas J. VILSACK,[*] Defendant-Appellee.
Attorney:Sarah Uhlemann, Jonathan R. Lovvorn and Carter Dillard, The Humane Society of the United States, Washington, D.C.; and Corey Evans and Geneva Page, Evans & Page, San Francisco, CA, for the appellants. Gregory G. Katsas, Jonathan F. Cohn, Michael S. Raab and Henry C. Whitaker, Civil Division, U.S....
Judge Panel:Before: ALFRED T. GOODWIN and PAMELA ANN RYMER, Circuit Judges, and GEORGE H. WU,[**] District Judge.
Case Date:November 20, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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587 F.3d 986 (9th Cir. 2009)

Ellen LEVINE; Beverly Ulbrich; Krista Kielman; Gretchen Wallerich; Kanda Boykin; Humane Society of the United States; East Bay Animal Advocates; Western North Carolina Workers' Rights Center; Mississippi Poultry Workers for Equality and Respect, Plaintiffs-Appellants,

v.

Thomas J. VILSACK, [*] Defendant-Appellee.

No. 08-16441.

United States Court of Appeals, Ninth Circuit.

November 20, 2009

Argued and Submitted Oct. 7, 2009.

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Sarah Uhlemann, Jonathan R. Lovvorn and Carter Dillard, The Humane Society of the United States, Washington, D.C.; and Corey Evans and Geneva Page, Evans & Page, San Francisco, CA, for the appellants.

Gregory G. Katsas, Jonathan F. Cohn, Michael S. Raab and Henry C. Whitaker, Civil Division, U.S. Department of Justice, Washington, D.C., for the appellee.

Appeal from the United States District Court for the Northern District of California, Marilyn Hall Patel, District Judge, Presiding. D.C. No. CV 05-04764-MHP.

Before: ALFRED T. GOODWIN and PAMELA ANN RYMER, Circuit Judges, and GEORGE H. WU,[**] District Judge.

WU, District Judge:

Dr. Ellen Levine, Beverly Ulbrich, Krista Kielman, Gretchen Wallerich, Kanda Boykin, The Humane Society of the United States, East Bay Animal Advocates, Mississippi Poultry Workers for Equality and Respect, Western North Carolina Workers' Center, John Doe I, and John Doe II (henceforth collectively " Levine" ) appeal from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (" Secretary" or " USDA" ). This case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactment) term the " Humane Methods of Slaughter Act of 1958" (" HMSA of 1958" ).1 See 7 U.S.C. §§ 1901-07. In particular, the parties dispute whether poultry should

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be considered " other livestock" as that phrase is used in that statute. Id. at § 1902(a). Levine challenged USDA's enunciation of its position-made most recently on September 28, 2005, in a Federal Register Notice issued by USDA's Food Safety and Inspection Service, see Treatment of Live Poultry before Slaughter, 70 Fed.Reg. 56,624 (Sept. 28, 2005)-that " there is no specific federal humane handling and slaughter statute for poultry." Id. at 56, 625.

In Levine v. Conner, 540 F.Supp.2d 1113 (N.D.Cal.2008), the United States District Court for the Northern District of California (" district court" ) determined that, while the plain meaning of the word " livestock" as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA. Because we conclude that Levine cannot satisfy the redressability prong of Article III standing, we vacate that decision and remand to the district court so that it can dismiss the action.

I. BACKGROUND

A. Statutory Background

In 1958, Congress passed the HMSA of 1958. See Pub.L. No. 85-765, 72 Stat. 862 (1958) (codified as amended at 7 U.S.C. §§ 1901-07). That legislation mandated (and continues to mandate) that " the slaughtering of livestock and the handling of livestock in connection with slaughter shall be carried out only by humane methods." 7 U.S.C. § 1901. It also authorized and directed the Secretary to designate " humane" methods of slaughter conforming " to the policy stated in this chapter" for " each species of livestock." Id. at § 1904(b).

When enacted, section 1902 set forth " two methods of slaughtering and handling" as humane:

(a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut; or

(b) by slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument. 2 Id. § 1902 (emphasis added). Congress provided an enforcement provision, but only in the form of generally prohibiting the federal government from purchasing livestock products where the animals were slaughtered by methods other than those designated and approved by the Secretary. See Pub.L. No. 85-765, 72 Stat. 862, 862-63 (codified at 7 U.S.C. § 1903 (repealed 1978)).3 The following year, USDA prescribed

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humane slaughter methods for those species expressly identified in the statute in addition to goats.4 See 24 Fed.Reg. 1549, 1551-53 (Mar. 3, 1959) (to be codified at 9 C.F.R. pt. 180).

The HMSA of 1958 did not define the terms " livestock" or " other livestock." Congressional debate revealed views favoring both interpretations advanced here-one that would include chickens, turkeys and other domestic fowl within its expanse and one that would preclude such inclusiveness. See, e.g., 104 Cong. Rec. 1655, 1659 (1958). Numerous versions of the legislation were advanced, some specifically including the term " poultry" and some (including the one eventually adopted) which excluded use of that specific term. See, e.g., 104 Cong. Rec. 15,368 (1958); H.R. 3029, 85th Cong., Sec. (g)(2) (1957); H.R. 8308, 85th Cong. § 2 (1957). One provision (now repealed) of the HMSA of 1958 itself separately referred to " livestock growers" and the " poultry industry" in connection with the formation of an advisory committee designed to consult with the Secretary and USDA officials in the course of carrying out the mandates set forth elsewhere in the legislation. See Pub.L. No. 85-765, 72 Stat. 862, 863 (codified at 7 U.S.C. § 1905 (repealed 1978)). In addition, in the prior year, the same Congress had passed the Poultry Products Inspection Act (" PPIA" ) (21 U.S.C. §§ 451-72) which, among other things, gave USDA authority to inspect poultry producers for compliance with health and sanitary requirements, required inspection of poultry after slaughter, established labeling requirements for poultry products, and allowed for withdrawal of inspections for noncompliance and the imposition of civil and criminal penalties for the sale of adulterated products. See 21 U.S.C. §§ 455-57, 461.

In 1978, in legislation also termed a " Humane Methods of Slaughter Act" (" HMSA of 1978" ), Congress repealed (along with certain other sections) the only enforcement provision contained within the HMSA of 1958 ( i.e., the prohibition on federal government purchases of inhumanely slaughtered livestock products previously found in 7 U.S.C. § 1903), and, at the same time, incorporated humane slaughter provisions into the Federal Meat Inspection Act (" FMIA" ) (21 U.S.C. §§ 601-95), which had originally been enacted in 1907. See Pub.L. No. 95-445, 92 Stat. 1069 (1978). Unlike the HMSA of 1958, however, the FMIA imposed inspection requirements only for " cattle, sheep, swine, goats, horses, mules, and other equines." Id. § 2, 92 Stat. at 1069; see also 21 U.S.C. § 603(a). As a result, if, upon inspection of the slaughtering of those animals, the slaughtering practices were not in accord with those established pursuant to the promulgated regulations, the USDA could suspend mandatory inspection (in effect cutting off those slaughterhouses from the commercial marketplace and the consuming public), and could impose criminal penalties. See 21 U.S.C. §§ 603(b), 604, 676. USDA then issued regulations implementing the 1978 amendments, which replaced the pre-existing regulations issued pursuant to the HMSA of 1958 and covered only those animals listed in the FMIA. See 44 Fed.Reg. 37,954 (June 29, 1979). Nevertheless, in enacting

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the HMSA of 1978, Congress did not repeal those provisions of the HMSA of 1958-7 U.S.C. §§ 1902(a), 1904(b)-which 1) set forth the specific list of species for purposes of that earlier statute, 2) included the terms " other livestock" and " livestock," and 3) authorized and directed the Secretary to designate compliant methods of slaughter.

In 2005, Congress deleted the specific list of animals from the FMIA and replaced it with the term " amenable species." See Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006, Pub.L. No. 109-97, Title VII, § 798, 119 Stat. 2120 (2005). " Amenable species" was defined to include " those species subject to the provisions of this chapter on the day before November 10, 2005" as well as " any additional species of livestock that the Secretary considers appropriate." 21 U.S.C. § 601(w).5

B. History Of USDA's Position

In the same month that Congress passed the HMSA of 1958, USDA itself gave some indication that it considered " [c]hicken eggs, commercial broilers, chickens, and turkeys" as " [l]ivestock and livestock products." See Changes in Farm Production and Efficiency, USDA Statistical Bulletin No. 233, at 4-5 & n. 5 (Aug.1958). In 1960, however, regulations were issued which defined " livestock products" for purposes of the HMSA of 1958 to mean any article intended for or capable of being used as food for either human or animals which is derived from slaughtered " cattle, calves, horses, mules, sheep, swine, or goats," and specifying further that the term " do[es] not include ... poultry." 25 Fed.Reg. 11152, 11152 (Nov. 23, 1960). USDA reiterated that position in 1979 in response to inquiries as to whether any humane slaughtering requirements covered chickens following the 1978 amendments.6 See 44 Fed.Reg. 68,809, 68,811 (Nov. 30, 1979). On September 28, 2005, USDA's Food Safety and Inspection Service issued a Federal Register Notice (" the Notice" ) entitled " Treatment of Live Poultry Before Slaughter." 70...

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