Slocum v. U.S., 75-1242
| Decision Date | 16 June 1975 |
| Docket Number | No. 75-1242,75-1242 |
| Citation | 515 F.2d 237 |
| Parties | B. R. SLOCUM d/b/a Animal World, Plaintiff-Appellee, v. UNITED STATES of America and Earl Butz, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert W. Rust, U. S. Atty., Lawrence B. Craig, III, Asst. U. S. Atty., Miami, Fla., Neil Koslowe, App. Section, Robert E. Kopp, Dept. of Justice, Washington, D. C., for defendants-appellants.
L. Alton Denslow, Washington, D. C., amicus curiae, for Poultry & Egg Inst. of America.
Vandroff, Mandell & Freshman, Lawrence N. Freshman, Richard J. Mandell, Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before GODBOLD, Circuit Judge, SKELTON, Associate Judge, * and GEE, Circuit Judge.
This case, somewhat less than run-of-the-mill, concerns mynah birds, African grey parrots, a variety of other exotic species to the retail value of half a million dollars and Velogenic Viscerotropic Newcastle Disease (VVND), a deadly, communicable avian disease. 1
Appellee B. R. Slocum, an importer of exotic birds, brought these birds into the country and, as required, quarantined them at two of his facilities in Florida. United States Department of Agriculture specialists inspected the birds, took tissue samples, and by established laboratory techniques isolated VVND virus from one group of the birds, the African grey parrots quarantined at Slocum's Station No. 1. On receipt of this report, Slocum disposed of these birds.
In the meantime, fate closed in on the other group of birds quarantined at Slocum's No. 2 Station; VVND virus was isolated from it as well. After taking special measures to verify this and consulting outside experts, the Department of Agriculture (Department) ordered Slocum to dispose of these also. This time Slocum, facing heavy financial loss and perhaps disaster, fought back. An expert virologist whom he retained was able to advise the Department that though, in his opinion, the second flock "were exposed to VVND" they were not infected. The Department, however, refused to grant his request to test the birds in his own laboratory or to reconsider its order that Slocum dispose of them. With this, Slocum went to law. 2
Proceeding on an expedited hearing schedule, the district court took evidence on Slocum's complaint, which sought declaratory relief or relief "in the nature of mandamus," commencing within two weeks after its filing. Slocum's witnesses, including experts, pointed to the absence of proof that the birds were actually diseased and to the slender basis upon which the presence of virus, let alone disease, rested two samples. The Department presentation, on the other hand, stressed the enormous risk to the poultry business posed, the dearth of knowledge about VVND's clinical course and manifestations in such birds as Slocum's, and that the presence of the virus among the birds had been established by the only sure test known to science. At the close of the hearing, the court determined that the Department's disposal order rested on substantial evidence and, though reluctantly, denied Slocum any relief.
Slocum then applied to the court for permission to conduct his own test by use of "sentinel chicks," sterile poultry to be placed in the cages, and the Department sought a warrant to seize the birds. The court refused the warrant and permitted the new test, which was generally negative. After another hearing, at which the test results were introduced and a highly qualified expert testified for the Department to his fears of intermediate transmission by healthy but infectious carrier birds, the court remanded the matter to the Department for reconsideration. The Department took further consultation with a panel of experts, reviewed the evidence de novo, and reported to the court, in pertinent part, as follows:
1. VVND was isolated from tissue samples taken from birds in Slocum # 2;
2. The surviving birds in Slocum # 2 are exposed to VVND;
3. There are no definitive tests presently available, short of sacrificing every single bird, to determine whether the birds in Slocum # 2 are free of VVND;
4. The birds in Slocum # 2 are likely to introduce or disseminate VVND into the United States, and
5. In order to protect the poultry of the United States and to prevent such introduction or dissemination of VVND into the United States, the birds in Slocum # 2 cannot be allowed to enter commercial channels and must be refused entry into the United States.
This conclusion is in accordance with the applicable regulations in Part 92, Title 9, Code of Federal Regulation, which were promulgated pursuant to suggestions from, and with the active participation of, the commercial bird importing industry, including the Plaintiff B. R. Slocum. It is further within the authority vested in the Secretary of section 2 of the Act of February 2, 1903, as amended (21 U.S.C. 111), which states in applicable part:
The Secretary of Agriculture shall have authority to make such regulations and take such measures as he may deem proper to prevent the introduction or dissemination of the contagion of any contagious, infectious, or communicable disease of animals and/or live poultry from a foreign country into the United States . . .;
and by section 4 of the Act of July 2, 1962 (21 U.S.C. 134c) which states:
The Secretary is authorized to promulgate regulations prohibiting or regulating the movement into the United States of any animals which are or have been affected with or exposed to any communicable animal disease, or which have been vaccinated or otherwise treated for any such disease, or which he finds would otherwise be likely to introduce or disseminate any such disease, when he determines that such action is necessary to protect the livestock or poultry of the United States.
On these considerations, the Department reaffirmed its order that the birds be disposed of.
After a final hearing, however, the court determined otherwise. Concluding that the regulations required the actual existence of disease for refusal of entry, that there was no reliable evidence showing this, and that the isolation of virus alone was insufficient to do so, the court found the Department's disposal order to lack a rational basis in fact and ordered the birds' admission. 3
Pursuant to 21 U.S.C. § 134c, quoted in pertinent part above in the Department's order on reconsideration, 4 the Department has promulgated regulations governing the importation, inter alia, of such birds as these. 9 C.F.R. Part 92 (1974). The regulations especially pertinent here (and the validity of which is conceded) are set out in the margin. 5
As applied to the case at hand, these may be summarized as requiring quarantine of such birds as Slocum's following which they are to be admitted if found "free of evidence of any communicable disease of poultry" but if found "to be infected with or exposed to" such a disease, they may be refused entry, further quarantined until found free of such evidence, or otherwise disposed of as directed by the Department. A special regulation for Newcastle disease permits use of sentinel birds and mandates destruction or refusal of entry if "frank or clinical" disease appears in bird or sentinel. Thus, the validity and general application of these regulations being undisputed, the narrow task of the trial court was to apply them to Slocum's birds. It concluded that only evidence of actual Newcastle disease in the birds could serve as the basis of an exclusion order, that no such evidence was forthcoming, and that therefore the order wanted a basis in fact. Though the matter is difficult and troubling, we are unable to agree.
In selecting its "law" to apply, the court below focused exclusively on the regulation, 6 set out at footnote 5 above, which mandates disposal of birds in quarantine when they (or introduced sentinels) develop frank or clinical Newcastle disease. Presumably, though the court does not say so, this was in...
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