Haviland v. Butz, 74-1322

• Decision Date: 23 March 1976
• Docket Number: No. 74-1322,74-1322
• Citation: 177 U.S. App. D.C. 22,543 F.2d 169
• Parties: , 177 U.S.App.D.C. 22 Hal HAVILAND, Appellant, v. Earl L. BUTZ, Secretary of Agriculture.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 169

543 F.2d 169

36 A.L.R.Fed. 615, 177 U.S.App.D.C. 22

Hal HAVILAND, Appellant, v. Earl L. BUTZ, Secretary of Agriculture.

No. 74-1322.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 25, 1975.

Decided March 23, 1976.

Carl L. Shipley, Washington, D. C., for appellant.

Justin D. Simon, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Thomas G. Corcoran, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before LEVENTHAL and ROBINSON, Circuit Judges, and JACK R. MILLER, ^* Judge, United States Court of Customs and Patent Appeals.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Hal Haviland owns and operates a professional animal act in which dogs and ponies are featured. ¹ The act is presented to paying audiences in a number of states ² and has occasionally appeared on commercial television. ³ In the view that Haviland was an "exhibitor" as defined by the Animal Welfare Act of 1970, ⁴ the Department of Agriculture gave notice that he was in violation of its licensing provisions ⁵ and that proceedings might be instituted to compel compliance. ⁶

To avoid the risk of possible penalties, ⁷ Haviland obtained an exhibitor's license. ⁸ He then brought suit in the District Court against the Secretary of Agriculture for a judgment declaring that he was not subject to regulation under the Act. ⁹ The court granted summary judgment in favor of the Secretary ¹⁰ and Haviland now appeals.

Reversal is urged on several grounds. Haviland asserts that the Act, properly construed, does not extend to his dog and pony show, and that inclusion of animal acts in the Secretary's implementing regulations is an unconstitutional usurpation of legislative power. ¹¹ He further contends that the Act exceeds congressional power under the Commerce Clause ¹² and discriminates invidiously in contravention of the Fifth Amendment's Due Process Clause. ¹³ We affirm.

I

In 1966, Congress enacted the Federal Laboratory Animal Welfare Act ¹⁴ "to deal with the abuses that have developed as a result of the Nation's vast program of medical research," ¹⁵ particularly research involving experimentation with animals. ¹⁶ The Animal Welfare Act of 1970 expanded the coverage of the 1966 statute to enlarge the class of protected animals and to regulate their use for exhibition purposes or as pets as well as their use for research purposes. ¹⁷

The Secretary claims that Haviland is subject to the Animal Welfare Act as an "exhibitor," defined by the Act as

any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country (sic ) fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary. ¹⁸ The Secretary's regulations augment the statutory definition by inserting the words "animal acts" between "circuses" and "zoos." ¹⁹

Haviland contends that this addition is unauthorized that the Act, as written and intended, does not embrace animal performances and that the Secretary could not expand its coverage. ²⁰ We think, however, that exhibitions utilizing animals to which the Act extends its protections ²¹ were fairly comprehended among its objects. ²² The Act itself declares that one of its goals is "to insure that certain animals intended for use . . . for exhibition purposes . . . are provided humane care and treatment. . . ." ²³ The statutory specification is that "(t)he term 'exhibitor' . . . includes carnivals, circuses, and zoos exhibiting such animals," ²⁴ and not that other essentially similar enterprises are excluded. In like vein, the accompanying report of the House Committee on Agriculture ²⁵ states that a prime objective was to "bring into the regulatory framework of the Act for the first time exhibitors (such as circuses, zoos, carnivals and road shows) . . . ." ²⁶ The words "includes" and "such as" point convincingly to the conclusion that the listing of types of exhibitions in the statutory text was intended to be but partial and illustrative.

Moreover, courts are duty bound to follow "the construction of a statute by those charged with its execution . . . unless there are compelling indications that it is wrong." ²⁷ This "deference . . . is heightened when," as here, "the case involves the construction of a new statute by its implementing agency." ²⁸ We see nothing suggesting persuasively that the Secretary's interpretation of "exhibitor" is incorrect. Certainly we discern no difference between animal acts on the one hand and circuses and carnivals on the other that is significant enough to warrant an upset of the Secretary's construction as a departure from the intent of Congress. ²⁹

We are thus constrained to reject Haviland's contention that the statutory listing of covered enterprises is exhaustive, and to sustain the Secretary's interpretative regulation. The Secretary is empowered "to promulgate such rules, regulations, and orders as he may deem necessary in order to effect the purposes of" the statutory scheme. ³⁰ It has long been recognized that delegations of this kind are necessary to enable Congress to exert its legislative powers effectively. ³¹ We find nothing in this delegation to justify the extraordinary step of declaring it void. ³² We hold that Haviland is within the regulatory compass of the Act.

II

We now address Haviland's constitutional contentions, first his argument that multistate presentations of his dog and pony show are not activity affecting interstate commerce, and for that reason are beyond the legislative authority conferred by the Commerce Clause. ³³ Characterizing his animal performances as local exhibitions analogous to baseball games, Haviland relies primarily on three Supreme Court decisions ³⁴ for the proposition that his productions, like professional baseball contests, are not appropriate subjects for federal regulation. This position does not withstand analysis of the precedents cited, nor does Haviland's claim of immunity for his own operation survive the impact of relevant decisions during the past generation. ³⁵

In 1922, the Supreme Court held in Federal Baseball Club v. National League ³⁶ that the business of staging baseball games, though in a multistate circuit, is not interstate commerce. ³⁷ This view was adhered to in 1953 in Toolson v. New York Yankees, Inc., ³⁸ "(w)ithout reexamination of the underlying issues." ³⁹ In Flood v. Kuhn, ⁴⁰ decided in 1972, however, the Court denominated the rule of Federal Baseball and Toolson "an aberration confined to baseball." ⁴¹ Despite the local quality of individual contests, professional baseball, the Court said, was indeed an interstate enterprise; ⁴² only on grounds of stare decisis was there justification for the gross inconsistency of Federal Baseball and Toolson with orthodox doctrine defining the commerce power. ⁴³ Even more significantly, the Court stated specifically that virtually all other professional sports are to be treated as operations in interstate commerce and amenable to federal legislation. ⁴⁴

Our mandate is thus clear the principle enunciated in Federal Baseball and Toolson is not to be extended to other businesses. Moreover, that is the clear course of judicial decision. ⁴⁵ We hold that Haviland's animal act, traveling from state to state to render performances and sometimes even utilizing the facilities of interstate communication to reach its audiences, ⁴⁶ is subject to regulation by Congress in the exercise of the commerce power. ⁴⁷

Lastly, Haviland argues that the classification effected by the Act's definition of "exhibitor" ⁴⁸ infringes the equal protection guaranty of the Fifth Amendment's Due Process Clause. ⁴⁹ The term is to include "carnivals, circuses, and zoos" and, as we have held, animal acts but is to exclude "retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary." ⁵⁰ But notwithstanding the number and breadth of the exclusions, the "legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest." ⁵¹ We believe that clearly it is.

Among the expressly articulated purposes of the Act, we repeat, is assurance that designated species of animals used in the types of exhibitions covered will receive humane care and treatment. ⁵² The coverage clause of the definition of "exhibitor" directly implements this legislative objective. Haviland wisely does not contest the propriety of the definition overall; rather, he asserts that there is no rational basis for distinguishing some other kinds of exhibitions, particularly rodeos. ⁵³

In essence, Haviland's thesis is that Congress recognized a problem of inhumanity to animals but attacked only a part of it. He insists that the requirements imposed by the Act upon producers of animal acts and other performances, but not upon operators of rodeos and other enterprises, is unjustly discriminatory. We note initially that the fact "(t)hat a statute treats different persons contrastingly does not, without more, signify that equal protection is wanting," ⁵⁴ and that neither "is the showing made by the additional circumstance that in actuality the law does not apply to all to whom it conceivably could." ⁵⁵ And we give heed to the Supreme Court's teaching that "(a) statute is not...