Ass'n Des Eleveurs De Canards Et D'Oies Du Quebec v. Harris, 12–56822.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PREGERSON
• Citation: 729 F.3d 937
• Parties: ASSOCIATION DES ELEVEURS DE CANARDS ET D'OIES DU QUEBEC, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hots Restaurant Group. Inc., a California corporation, Plaintiffs–Appellants, and Gauge Outfitters, Inc., Plaintiff, v. Kamala D. HARRIS, Attorney General; Edmund G. Brown, in his official capacity as Governor of California; the State of California, Defendants–Appellees.
• Docket Number: No. 12–56822.,12–56822.
• Decision Date: 30 August 2013

729 F.3d 937

ASSOCIATION DES ELEVEURS DE CANARDS ET D'OIES DU QUEBEC, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hots Restaurant Group. Inc., a California corporation, Plaintiffs–Appellants,
and
Gauge Outfitters, Inc., Plaintiff,
v.
Kamala D. HARRIS, Attorney General; Edmund G. Brown, in his official capacity as Governor of California; the State of California, Defendants–Appellees.

No. 12–56822.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted May 8, 2013.
Filed Aug. 30, 2013.

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Michael Tenenbaum (argued), The Tenenbaum Law Firm, Santa Monica, California, for Plaintiffs–Appellants.

Stephanie F. Zook (argued), Deputy Attorney General; Constance L. LeLouis, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, Sacramento, California, for Defendants–Appellees.

Melissa Grant, (argued) and Arnab Banerjee, Capstone Law APC, Los Angeles, California; Tiffany Hedgpeth, Jeremy Esterkin, and Bryce Woolley, Bingham McCutchen LLP, Los Angeles, California, for Amici Curiae.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding.
Before: HARRY PREGERSON and RAYMOND C. FISHER, Circuit Judges, and WILEY Y. DANIEL, Senior District Judge.^*

OPINION
PREGERSON, Circuit Judge:

Plaintiffs produce and sell foie gras, a delicacy made from fattened duck liver. To produce their foie gras, Plaintiffs feed their ducks through a tube inserted directly in the ducks' esophagi. In July 2012, California Health & Safety Code § 25982

[729 F.3d 942]

came into effect. The statute bans the sale of products that are the result of force feeding birds to enlarge their livers beyond normal size. We are called upon to review the district court's denial of Plaintiffs' motion to preliminarily enjoin the State from enforcing § 25982. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

FACTUAL BACKGROUND

Appellants Association des Éleveurs de Canards et d'Oies du Québec (the “Canadian Farmers”) and HVFG LLC (“Hudson Valley”) are non-California entities that raise ducks for slaughter and are producers and sellers of foie gras. Appellant Hot's Restaurant Group, Inc. (“Hot's Kitchen”) is a restaurant in California that sold foie gras before § 25982 came into effect (collectively, “Plaintiffs”).

Hudson Valley and the Canadian Farmers raise Moulard ducks. Moulard ducks are a hybrid of Muscovy male ducks and Pekin female ducks. They are bred for their capacity of ingestion and fat storage in their livers. In addition to foie gras, Hudson Valley and the Canadian Farmers produce and sell breasts, legs, fat, bones, offal, and feathers from their Moulard ducks.

Generally, Moulard ducks are raised for foie gras through the following process. The Canadian Farmers and Hudson Valley take one-day-old ducks from the hatchery to breeding farms. There, the ducks are raised until they are fully grown, a process that generally takes eleven to thirteen weeks. For the first four weeks of their lives, the ducks eat pellets from feeding pans that are available to them twenty-four hours a day. In the next stage, which lasts one to two months, the ducks eat different pellets from feeding pans that are available to them twenty-four hours a day. For the next two weeks, the ducks continue to eat pellets from feeding pans that are available to them at only certain times during the day. In the final stage, called gavage, which lasts between ten to thirteen days, the ducks are hand-fed by feeders who use “a tube to deliver the feed to the crop sac at the base of the duck's esophagus.”

STATUTORY BACKGROUND

The statutory provision Plaintiffs seek to enjoin, § 25982, is within the statute entitled “Force Fed Birds.” Cal. Health & Safety Code §§ 25980 et seq.Section 25982 states: “A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.” Id. § 25982. Section 25981 further provides: “A person may not force feed a bird for the purpose of enlarging the bird's liver beyond normal size, or hire another person to do so.” Id. § 25981.¹

Sections 25981 and 25982 became operative on July 1, 2012. The California Legislature delayed the effective date of the statutes from January 1, 2005 to July 1, 2012 “to allow a seven and one-half year period for persons or entities engaged in agricultural practices that include raising and selling force fed birds to modify their business practices.” Id. § 25984(c).

PROCEDURAL BACKGROUND

The day after § 25982 came into effect, Plaintiffs filed a lawsuit to enjoin Defendants–Appellees Attorney General Kamala Harris, Governor Edmund Brown, and the

[729 F.3d 943]

State of California (collectively, the “State”) from enforcing the statute. Plaintiffs argue that § 25982 is unconstitutional because it violates the Due Process Clause and the Commerce Clause of the United States Constitution.

Plaintiffs applied ex parte for a temporary restraining order and an order to show cause why a preliminary injunction should not issue. The district court denied the motion. Plaintiffs then filed a motion for preliminary injunction. The district court denied the motion, and Plaintiffs timely appealed.

DISCUSSION I. Eleventh Amendment Immunity

The district court determined that the Attorney General is not entitled to Eleventh Amendment immunity and did not address the State of California's or the Governor's immunity claims. We must resolve an Eleventh Amendment immunity claim before reaching the merits. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir.2012). We review a denial of immunity de novo. Id.

“States are protected by the Eleventh Amendment from suits brought by citizens in federal court.” Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812, 817,amended by,271 F.3d 910 (9th Cir.2001). Plaintiffs are plainly barred by the Eleventh Amendment from suing the State of California in federal court.

An exception under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, allows citizens to sue state officers in their official capacities “for prospective declaratory or injunctive relief ... for their alleged violations of federal law.” Coal. to Defend Affirmative Action, 674 F.3d at 1134. The state official “ ‘must have some connection with the enforcement of the act.’ ” Id. (quoting Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441). That connection “must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.” Id. (quoting L.A. Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992)).

Here, Governor Brown is entitled to Eleventh Amendment immunity because his only connection to § 25982 is his general duty to enforce California law. See, e.g., Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 846–47,opinion amended on denial of reh'g,312 F.3d 416 (9th Cir.2002).

We may affirm the district court's determination that the Attorney General is not entitled to Eleventh Amendment immunity on any sufficient ground. See Papa v. United States, 281 F.3d 1004, 1009 (9th Cir.2002). Section 25983 expressly authorizes enforcement of the statute by district attorneys and city attorneys. Cal. Health & Safety Code § 25983(c) (stating that “[a] person or entity that violates this chapter [Force–Fed Birds] may be prosecuted by the district attorney of the county in which the violation occurred, or by the city attorney of the city in which the violation occurred”).

Pursuant to Article V, § 13 of the California Constitution, the Attorney General not only has “direct supervision over every district attorney,” but also has the duty “to prosecute any violations of law ... [and] shall have all the powers of a district attorney,” whenever she believes that the law is not being adequately enforced. Cal. Const. art. V, § 13. The combination of § 25983, which gives district attorneys the authority to prosecute violations of § 25982, and the Attorney General's duty to prosecute as a district

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attorney establishes sufficient enforcement power for Ex Parte Young. See Coal. to Defend Affirmative Action, 674 F.3d at 1132–35 (affirming the denial of Eleventh Amendment to the President of the University of California because he was “duty-bound” to enforce the challenged statute, which precluded “using race as a criterion in admission decisions”); Nat'l Audubon Soc'y, Inc., 307 F.3d at 842, 847 (affirming the denial of Eleventh Amendment immunity to state official with “direct authority over and principal responsibility for enforcing Proposition 4,” a law “to protect wildlife and domestic pets”).

The Attorney General's argument that she is entitled to Eleventh Amendment immunity because she has not shown she intends to enforce § 25982 is foreclosed by our decision in National Audubon Society, Inc. v. Davis., 307 F.3d at 846. There, we held that a plaintiff need not show that a “present threat of enforcement” exists before invoking the Ex Parte Young exception. Id. Instead, a state official who contends that he or she will not enforce the law may challenge plaintiff's Article III standing based on “an unripe controversy.” Id. at 847. The State makes no such challenge.

We affirm the district court's denial of Eleventh Amendment immunity to the Attorney General. We dismiss the State of California and Governor Brown from this lawsuit because they are immune from suit.

II. Denial of Plaintiffs' Preliminary Injunction A. Standard of Review & Legal Standards

A plaintiff seeking a preliminary injunction must establish that: (1) he is “likely to succeed on the merits”; (2) he is “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “an injunction...