Hernandez-Gotay v. United States ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2236
NYDIA MERCEDES HERNÁNDEZ-GOTAY; FAUSTINO ROSARIO-RODRÍGUEZ; LUIS
JOEL BARRETO-BARRETO; CARLOS QUIÑONES-FIGUEROA; LAURA GREEN,
Plaintiffs, Appellants,
CLUB GALLÍSTICO DE PUERTO RICO, INC.,
Plaintiff,
and
ASOCIACIÓN CULTURAL Y DEPORTIVA DEL GALLO FINO DE PELEA; ÁNGEL
MANUEL ORTIZ-DÍAZ; JOHN J. OLIVARES-YACE; ÁNGEL LUIS NARVÁEZ-
RODRÍGUEZ; JOSÉ MIGUEL CEDEÑO,
Plaintiffs,
v.
UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY
PERDUE, Secretary of the Department of Agriculture;* UNITED
STATES DEPARTMENT OF JUSTICE; JEFFREY A. ROSEN, Acting Attorney
General;** DONALD J. TRUMP, President,
Defendants, Appellees.
* It appears that appellants have misspelled the Secretary's
name, an error which is reflected in their briefing and on the
docket. The Clerk of Court shall amend the case caption to reflect
the correct spelling as used in this opinion.
** Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Jeffrey A. Rosen has been substituted for former Attorney
General William P. Barr as appellee.
No. 20-1084
ASOCIACIÓN CULTURAL Y DEPORTIVA DEL GALLO FINO DE PELEA; ÁNGEL
MANUEL ORTIZ-DÍAZ; JOHN J. OLIVARES-YACE; ÁNGEL LUIS NARVÁEZ-
RODRÍGUEZ; JOSÉ MIGUEL CEDEÑO,
Plaintiffs, Appellants,
and
CLUB GALLÍSTICO DE PUERTO RICO, INC.; NYDIA MERCEDES HERNÁNDEZ-
GOTAY; FAUSTINO ROSARIO-RODRÍGUEZ; LUIS JOEL BARRETO-BARRETO;
CARLOS QUIÑONES-FIGUEROA; LAURA GREEN,
Plaintiffs,
v.
UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY
PERDUE, Secretary of the Department of Agriculture; UNITED
STATES DEPARTMENT OF JUSTICE; JEFFREY A. ROSEN, Acting Attorney
General; DONALD J. TRUMP, President,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Edwin Prado-Galarza and María A. Domínguez, with whom Rafael
Ojeda, Félix Román Carrasquillo, and DMRA Law LLC were on briefs,
for appellants.
Jeffrey Bossert Clark, Sr., with whom Ethan P. Davis, Acting
Assistant Attorney General, W. Stephen Muldrow, United States
Attorney, Abby C. Wright, Attorney, Appellate Staff Civil
Division, and John S. Koppel, Attorney, Appellate Staff Civil
Division were on brief, for appellees.
Isaías Sánchez-Báez, Solicitor General of Puerto Rico, and
Carlos Lugo-Fiol on brief for the Commonwealth of Puerto Rico,
amicus curiae.
Jorge Martínez-Luciano, Emil Rodríguez-Escudero, and M.L. &
R.E. Law Firm on brief for the Puerto Rico Association of Mayors,
amicus curiae.
Ana Maria Hernandez Marti and Jessica L. Blome on brief for
Animal Wellness Action, Animal Wellness Foundation, and the Center
for a Humane Economy, amici curiae.
January 14, 2021
LYNCH, Circuit Judge. Plaintiffs in these consolidated
cases challenge the constitutionality of Section 12616 of the
Agriculture Improvement Act of 2018 ("Section 12616"), which bans
the "sponsor[ship]" and "exhibit[ion]" of cockfighting matches in
Puerto Rico. Pub. L. No. 115-334, § 12616, 132 Stat. 4490, 5015-
16 (codified as amended at 7 U.S.C. § 2156). Plaintiffs argue
that the law exceeds Congress's Commerce and Territorial Clause
powers and violates their First Amendment and Due Process rights.
We affirm the district court's decision and hold that Section 12616
is a valid exercise of Congress's Commerce Clause power and does
not violate plaintiffs' individual rights.1
I. Background
On appeal from the grant of the government's motion for
summary judgment, we read the facts in the light most favorable to
the plaintiffs. Stamps v. Town of Framingham, 813 F.3d 27, 30
(1st Cir. 2016).
Cockfighting is "the sport of pitting gamecocks to fight
and the breeding and training of them for that purpose."
Cockfighting, Britannica, https://www.britannica.com/sports
/cockfighting (last visited Dec. 17, 2020). The birds are bred to
1 We acknowledge and thank the amici curiae for their
submissions in this case. The Puerto Rico Association of Mayors
and the Commonwealth of Puerto Rico filed amicus curiae briefs in
support of appellants. Animal Wellness Action, Animal Wellness
Foundation, and the Center for a Humane Economy submitted an amicus
curiae brief in support of the government.
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fight, are typically armed with steel spurs, and fight until one
of the birds dies or is so injured that it can no longer fight.
The Cockfight: A Casebook, at vii (Alan Dundes ed., 1994). The
fights may end in a few minutes or go on as long as half an hour.
Id. Cockfighting was banned in Puerto Rico from 1898 to 1933, and
has since been heavily regulated under local Puerto Rico law. See
P.R. Laws Ann. tit. 15 §§ 301 et seq.
In 1976, Congress amended the Animal Welfare Act ("AWA")
to ban "animal fighting venture[s]," now defined as "any event, in
or affecting interstate or foreign commerce, that involves a fight
conducted . . . between at least 2 animals for purposes of sport,
wagering, or entertainment." 7 U.S.C. § 2156(f)(1); Animal Welfare
Act Amendments of 1976, Pub. L. No. 94-279, 90 Stat. 417, 421-22
(codified as amended at 7 U.S.C. § 2156). Those 1976 amendments
contained an exception allowing fights between "live birds" which
took place in any state where such fights were allowed under state
law. Animal Welfare Act Amendments of 1976 § 17. Puerto Rico is
treated as a state under the AWA. 7 U.S.C. § 2156(f)(3).
Congress has amended the animal fighting venture
prohibition several more times. As of 2018, before the passage of
the law at issue in this case, Congress had banned attendance at
all animal fighting ventures -- including those in Puerto Rico and
other jurisdictions which still allowed cockfighting -- and the
"[b]uying, selling, delivering, possessing, training, or
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transporting" of animals for the purpose of having the animal
participate in an animal fighting venture. 7 U.S.C. § 2156(a)(2),
(b) (2018).
In 2018, Congress passed Section 12616, which removed
the remaining exception that allowed individuals to "[s]ponsor[]
or exhibit[]" cocks in fights if allowed under local law and if
they lacked knowledge that the cocks were moved in interstate
commerce for purposes of cockfighting. See Section 12616(a); 7
U.S.C. § 2156. It also closed an exception which had allowed the
use of interstate mail or services to advertise or promote
cockfights taking place in states which permitted cockfighting.
See Section 12616(b); 7 U.S.C. § 2156(c); Farm Security and Rural
Investment Act of 2002, Pub. L. No. 107-171 § 10302, 116 Stat.
134, 492.
The sponsors of Section 12616 explained that prohibiting
cockfighting would "move to end the cruelty of animal fighting,"
"protect . . . communities from associated crimes such as illegal
drug dealing and human violence," and "safeguard against the spread
of diseases in poultry such as avian flu, since birds used in
cockfighting are particularly vulnerable." Further, "[a]fter a
2002 outbreak of exotic Newcastle disease in the U.S., which cost
taxpayers nearly $200 million and the poultry industry many
millions more, the USDA implicated cockfighting as a culprit in
spreading the disease."
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II. Procedural History
On May 22 and August 1, 2019, plaintiffs filed two suits
to enjoin the enforcement of Section 12616.2 The cases were
consolidated by the district court on August 5, 2019.
Plaintiffs asserted a number of claims, including that
Section 12616 violated their First Amendment and Due Process
rights, and that Congress exceeded its powers under the Commerce
and Territorial Clauses. Club Gallístico de P.R. Inc. v. United
States, 414 F. Supp. 3d 191, 201 (D.P.R. 2019). The plaintiffs
lodged both facial and as-applied pre-enforcement challenges to
the statute. Id. at 200.3
The government asserted that plaintiffs did not have
standing to challenge the portions of the animal fighting venture
ban that were unchanged by Section 12616.4 Id. at 203.
2 Plaintiffs were individuals and a corporation which own
cockfighting rings; individuals who breed, own, or invest in birds;
individuals who work for cockfighting arenas; an artisan who crafts
cockfighting-inspired art to be sold across state lines; and a
cultural association dedicated to "preserving the tradition,
culture, and economic benefits of cockfighting."
3 Any facial challenge fails because the statute has
"plainly legitimate sweep." Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008). Therefore, we address
only the as-applied challenge.
4 On appeal, plaintiffs have dropped their claims that
Section 12616 violates the anti-commandeering doctrine, that
Section 12616 is a Bill of Attainder, that Section 12616 is
inapplicable to Puerto Rico under the Puerto Rico Federal Relations
Act, that Section 12616 violates the Takings Clause, and that
Section 12616 violates their right to travel. Club Gallístico de
P.R. Inc., 414 F. Supp. 3d at 201. The district court rejected
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The parties filed cross-motions for summary judgment.
Id. at 201. The district court granted the government's motion
and denied plaintiffs' motion. Id. at 202.
The district court first held that the plaintiffs had
"standing to challenge the constitutionality of Congress'
extension of the animal fighting prohibition to the Commonwealth
of Puerto Rico and those provisions that have existed prior to
Section 12616's approval." Id. at 204.
The district court then concluded that Section 12616 was
a valid exercise of Congress's Commerce Clause and Territorial
Clause powers. Id. at 204-08. It next held that cockfighting is
not expressive conduct and so is unprotected by the First
Amendment, and that Section 12616 did not violate plaintiffs' right
of free association because it does not actually restrict
association. Id. at 209-10. The district court rejected the
substantive Due Process claim because there is no fundamental right
to cockfighting and there was a rational basis for passing Section
12616. Id. at 211. It also rejected plaintiffs' procedural Due
Process claim, stating that "the legislative process itself
provides citizens with all of the process they are due." Id.
(quoting Correa-Ruiz v. Fortuño, 573 F.3d 1, 15 (1st Cir. 2009)).
each of these claims. Id. at 201-02, 208-09, 211-12.
The government did not renew its argument that
plaintiffs lacked standing.
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This appeal followed.5
III. Analysis
We review the district court's grant of summary judgment
de novo. Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020).
We first address the issue of standing, followed by the
Commerce Clause, First Amendment, and Due Process arguments.
A. Standing
Federal courts have "an independent obligation to assure
that standing exists, regardless of whether it is challenged by
any of the parties." Summers v. Earth Island Inst., 555 U.S. 488,
499 (2009).
To have standing, a plaintiff must "'allege[] such a
personal stake in the outcome of the controversy' as to warrant
his invocation of federal-court jurisdiction." Id. at 493 (quoting
Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). "To satisfy Article
III's 'personal stake' requirement vis-à-vis a statutory
challenge, the plaintiff bears the burden of demonstrating that
(i) she has suffered an actual or threatened injury in fact, which
is (ii) fairly traceable to the statute, and (iii) can be redressed
by a favorable decision." Ramírez v. Sánchez Ramos, 438 F.3d 92,
97 (1st Cir. 2006) (first citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992); and then citing Lewis v. Cont'l Bank
5 Plaintiff Club Gallístico de Puerto Rico, Inc. withdrew
from this appeal after the notice of appeal was filed.
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Corp., 494 U.S. 472, 477 (1990)). "[A] plaintiff satisfies the
injury-in-fact requirement where he alleges 'an intention to
engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.'" Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt
v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
We conclude that plaintiff Ángel Manuel Ortiz-Díaz, the
owner of two cockfighting venues and a breeder and owner of more
than 200 gamecocks, has standing to challenge Section 12616. Ortiz
faces a credible threat of prosecution under Section 12616 because
he regularly sponsors and exhibits cockfighting matches at his
cockpits.6 The other standing requirements are clearly met.
Article III's case-or-controversy requirement is satisfied if at
least one party has standing. Bowsher v. Synar, 478 U.S. 714, 721
(1986).
We also hold that Ortiz's claims are ripe. Ortiz's
business is to sponsor and exhibit cockfights, and Section 12616
6 Although Section 12616 does not define "sponsor[ship]"
or "exhibit[ion]," the government has stated that it would
understand at least one of those terms to encompass Ortiz's conduct
for purposes of enforcing the statute.
As to the other plaintiffs, each of them is involved in
the same class of commercial activities as Ortiz. See County of
Los Angeles v. Davis, 440 U.S. 625, 631 (1979); United States v.
Poulin, 631 F.3d 17, 21 (1st Cir. 2011).
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bans such activity. Thus, there is a controversy with "sufficient
immediacy and reality to warrant the issuance of a declaratory
judgment." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,
273 (1941)).
B. Commerce Clause
Plaintiffs argue that Congress exceeded its authority
under the Commerce Clause in enacting Section 12616.
The Commerce Clause empowers Congress to regulate
"activities that substantially affect interstate commerce."
United States v. Lopez, 514 U.S. 549, 559 (1995). This includes
"purely local activities that are part of an economic 'class of
activities' that have a substantial effect on interstate
commerce." Gonzales v. Raich, 545 U.S. 1, 17 (2005). "In
assessing the scope of Congress' authority under the Commerce
Clause, . . . [w]e need not determine whether [plaintiffs']
activities, taken in the aggregate, substantially affect
interstate commerce in fact, but only whether a 'rational basis'
exists for so concluding." Id. at 22 (quoting Lopez, 514 U.S. at
557).
In making this inquiry, we consider four factors:
(1) whether the statute regulates economic or
commercial activity; (2) whether the statute
contains an "express jurisdictional element"
that limits the reach of its provisions; (3)
whether Congress made findings regarding the
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regulated activity's impact on interstate
commerce; and (4) whether "the link between
[the regulated activity] and a substantial
effect on interstate commerce was attenuated."
United States v. Morales-de Jesús, 372 F.3d 6, 10 (1st Cir. 2004)
(alteration in original) (quoting United States v. Morrison, 529
U.S. 598, 610-12 (2000)).
As to the first factor, plaintiffs argue in passing that
the statute "does not truly regulate economic or commercial
activity." But, as explained by the Fourth Circuit, the AWA bans
animal fights for "purposes of sport, wagering, or entertainment,"
all of which are "closely aligned in our culture with economics
and elements of commerce." United States v. Gibert, 677 F.3d 613,
624 (4th Cir. 2012). And here, the government does not assert
that the jurisdictional element, which defines the regulated
activity as that "in or affecting interstate or foreign commerce,"
7 U.S.C. § 2156(f)(1), would be satisfied were there no commercial
aspect to a particular cockfight. Moreover, on this record,
Ortiz's sponsorship and exhibition of cockfights for profit is
clearly economic and commercial, as are the activities of the
remaining plaintiffs.
As to the second factor, the plaintiffs argue that the
"express jurisdictional element" of the AWA -- which bans all
cockfighting "in or affecting interstate or foreign commerce," 7
U.S.C. § 2156(f)(1) -- is an "illusion" which does not articulate
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a meaningful boundary between interstate and intrastate commerce.
As the Supreme Court has explained, an express jurisdictional
element "may establish that the enactment is in pursuance of
Congress' regulation of interstate commerce," Morrison, 529 U.S.
at 612, and can "ensure, through case-by-case inquiry, that the
[prohibited conduct] in question affects interstate commerce,"
Lopez, 514 U.S. at 561. And, as we have noted above, the government
does not argue that the jurisdictional element would be satisfied
as to a cockfight lacking a commercial aspect. Thus, the
jurisdictional element here is sufficient. See id. at 561-62.
As to the third factor, plaintiffs argue that Congress
made no findings regarding the 2018 amendments' impact on
interstate commerce. Plaintiffs assert that we should not look to
Congress's reasons for banning animal fighting ventures in
general, because they challenge only Section 12616. We disagree.
Section 12616 extended the existing ban to Puerto Rico rather than
creating entirely new restrictions, so earlier findings are
relevant and must be considered.
Multiple congressional findings underscore the
interstate commercial impact of cockfighting. Congress clarified
in the AWA's "statement of policy" that the "animals and activities
which are regulated under this chapter are either in interstate or
foreign commerce or substantially affect such commerce or the free
flow thereof." 7 U.S.C. § 2131. As pointed out by the Fourth
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Circuit, the House Report discussing the 1976 amendments found
that animal fighting ventures "(a) attract fighting animals and
spectators from numerous states, (b) are or have been advertised
in print media of nationwide circulation, and (c) often involve
gambling and other 'questionable and criminal activities.'"
Gibert, 677 F.3d at 625 (quoting H.R. Rep. No. 94-801, at 9 (1976),
as reprinted in 1976 U.S.C.C.A.N 758, 761). Senator Maria Cantwell
also noted that cockfighting can contribute to the spread of avian
flus, a concern of particular importance given the present ongoing
COVID-19 pandemic. See 153 Cong. Rec. S451-52 (daily ed. Jan. 11,
2007) (Statement of Sen. Cantwell).
As to the fourth factor, plaintiffs argue that Section
12616's effect on interstate commerce is incidental and
attenuated. In light of the jurisdictional hook, and the nature
of the plaintiffs' relationship to commercial cockfighting, in
this case the effects on interstate commerce are certainly not
incidental.
These factors require the conclusion that the
prohibitions in the statute are about activities which
substantially affect interstate commerce. We hold that Section
12616 is a legitimate exercise of the Commerce Clause power.7
7 As the Commerce Clause power is sufficient, we need not
reach the Territorial Clause issue.
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B. First Amendment
Plaintiffs argue that Section 12616 infringes on their
First Amendment freedoms of speech and association. We reject
both claims.
The First Amendment states that "Congress shall make no
law . . . abridging the freedom of speech." U.S. Const. amend. I.
Conduct "sufficiently imbued with elements of communication" is
also protected under the First Amendment. Texas v. Johnson, 491
U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405,
409 (1974)). However, conduct cannot "be labeled 'speech' whenever
the person engaging in the conduct intends thereby to express an
idea." United States v. O'Brien, 391 U.S. 367, 376 (1968). In
deciding whether conduct deserves First Amendment protection, we
ask both whether it was "intended to be communicative" and whether
it, "in context, would reasonably be understood by the viewer to
be communicative." Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 294 (1984). "It is the duty of the party seeking to
engage in allegedly expressive conduct to demonstrate that the
First Amendment applies to that conduct." Wine & Spirits
Retailers, Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir. 2005).
Plaintiffs argue that cockfighting in Puerto Rico is
expressive conduct entitled to First Amendment protection. We
disagree. Plaintiffs' assertion that cockfighting "express[es]
their culture and deeply rooted sense of self-determination" is
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insufficient to show that their sponsorship or exhibition of
cockfighting "would reasonably be understood by the viewer to be
communicative." Cmty. for Creative Non-Violence, 468 U.S. at 294;
see also United States v. Stevens, 559 U.S. 460, 469 (2010)
(recognizing "long history" of banning animal cruelty). By the
same token, the O'Brien test does not apply here because plaintiffs
have failed to identify any expressive element in the cockfighting
activities that they engage in such that Section 12616 could be
considered even an incidental burden on speech. See O'Brien, 391
U.S. at 376-77. Even had plaintiffs shown that their cockfighting
activities contained some expressive element, Section 12616 is
plainly permissible as an incidental restraint on such speech.
See id. at 377.
Plaintiffs next argue that Section 12616 infringes on
their First Amendment associational right to "peaceably . . .
assemble." U.S. Const. amend. I. They argue that "the
criminalization of cockfighting in Puerto Rico deters Appellants
from assembling to discuss and express their views regarding
cockfighting." This argument fails. Nothing in Section 12616
curtails any discussion or expression of a person's views regarding
cockfighting, and this section does not restrict assembly for those
purposes at all. See Knox v. Serv. Emps. Int'l Union, Local 1000,
567 U.S. 298, 309 (2012) (noting that under the Free Assembly
Clause, "the ability of like-minded individuals to associate for
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the purpose of expressing commonly held views may not be
curtailed"); Holder v. Humanitarian L. Project, 561 U.S. 1, 39
(2010) (distinguishing prior free association cases that penalize
"mere" or "simple" association as opposed to "the act of giving
material support" (quoting Humanitarian L. Project v. Reno, 205
F.3d 1130, 1133 (9th Cir. 2000))). Section 12616 cannot be
invalidated on this ground.8
C. Due Process
Plaintiffs next argue that the passage of Section 12616
violated their procedural and substantive Due Process rights.
Plaintiffs conceded at oral argument that they have no
cognizable liberty interest at stake other than their purported
First Amendment interest. That concession dooms the argument they
are making. Even apart from their concession, plaintiffs have not
shown that they have any cognizable liberty interest which is being
infringed by these prohibitions. We reject their procedural and
substantive Due Process challenges.9 See U.S. Const. amends. V,
8 Plaintiffs' reference to the Universal Declaration of
Human Rights is of no avail. "[T]he Declaration does not of its
own force impose obligation as a matter of international law."
Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004); see also
Medellín v. Texas, 552 U.S. 491, 504-05 (2008) (stating that non-
self-executing treaties do not create domestic law).
9 It is still unsettled whether due process requirements
apply to Puerto Rico by way of the Fifth or Fourteenth Amendment.
See Tenoco Oil Co. v. Dep't of Consumer Affs., 876 F.2d 1013, 1017
n.9 (1st Cir. 1989). This is of no matter, because "the language
and policies of the Due Process Clauses of the Fifth and Fourteenth
Amendments are essentially the same." United States v. Neto, 659
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XIV (protecting only against the deprivation of "life, liberty, or
property, without due process of law"); Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 569-70 (1972).
IV. Conclusion
The judgment of the district court is affirmed.
F.3d 194, 201 n.7 (1st Cir. 2011) (internal quotation marks and
citation omitted).
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