Reichley v. Pennsylvania Department of Agriculture ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-2-2005
Reichley v. PA Dept Agriculture
Precedential or Non-Precedential: Precedential
Docket No. 04-3253
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-3253
GALEN REICHLEY, t/d/b/a Reichley Brothers Farm;
ALLEN REICHLEY, t/d/b/a Reichley Brothers Farm;
CURTIS STROUP
v.
PENNSYLVANIA DEPARTMENT OF AGRICULTURE;
PENN AG INDUSTRIES; LONGENECKER’S
HATCHERY, INC.; KREAMER FEED, INC.; DENNIS C.
WOLFF; SAMUEL E. HAYES, as Secretary of the PA
Department of Agriculture
Galen Reichley, Allen Reichley t/d/b/a/
Reichley Brothers Farm and Curtis Stroup,
Appellants
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District No. 03-cv-00009
District Judge: Honorable Malcolm Muir
Argued: July 11, 2005
1
Before: Sloviter, McKee, Circuit Judges, and Fullam, District
Judge *
(Opinion Filed: November 2, 2005)
Alexander H. Lindsay, Jr. (Argued)
128 South Main Street
Butler, PA 16001
Attorney for Appellants
Linda S. Lloyd (Argued)
15 th Floor
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Attorney for Appellees Pa Dept. Agriculture, Secretary
PA. Department of Agriculture and Dennis C. Wolff
Gregory S. Hirtzel
Post & Schell
1857 William Penn Way
P.O. Box 10248
Lancaster, PA 17605
Attorney for Appellee Penn Ag Ind
Sheila A. Haren (Argued)
*
Honorable John P. Fullam, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
2
Post & Schell
1600 JFK Boulevard
Four Penn Center, 13 th Floor
Philadelphia, PA 19103
Attorney for Appellee Penn Ag Ind
OPINION
McKee, Circuit Judge
We are asked to review the District Court’s grant of
summary judgement in favor of the Secretary of Agriculture for
the Commonwealth of Pennsylvania and Penn Ag Industries in
this civil rights action brought pursuant to 42 U.S.C. § 1983.
Appellants allege that certain actions defendants took in
response to an outbreak of avian influenza deprived them of
their property “without procedural or substantive due process in
violation of the Fourteenth Amendment of the Constitution of
the United States.” Appellants’ Br. at 39. For the reasons that
follow, we will affirm.
I. BACKGROUND.
A. Statutory and Regulatory Underpinnings.
In enacting Pennsylvania’s Domestic Animal Law (Act
of July 11, 1996, P.L. 561. No. 100, as amended), 3 Pa. CS. §§
2301-2389, Pennsylvania’s General Assembly declared animal
health to be of major economic interest in Pennsylvania, and it
proclaimed that “it is the . . . policy of the Commonwealth to
assure the health and welfare of animals kept in captivity, to
prevent and control diseases and dangerous substances that may
3
threaten the safety of animals and humans, and to provide for
desirable management practices for the production . . . of
domestic animals.” 3 Pa.C.S. § 2302.1 The Pennsylvania
Department of Agriculture (the “PDA”), and more specifically,
the Secretary of Agriculture, has authority to implement that
policy.
Accordingly, the PDA has the power under the Domestic
Animal Law to quarantine animals it reasonably suspects have
been exposed to a dangerous, transmittable disease. 3 Pa.C.S. §
2329 (a). The PDA also has the authority to, “condemn and
seize or cause to be destroyed, any quarantined domestic animal
. . . that has been determined by the Department as having been
exposed to a dangerous transmittable disease or hazardous
substance such that destruction of the domestic animal. . . is
necessary to prevent the spread of such disease or
contamination.” 3 Pa.C.S. § 2330.
B. Avian Influenza.
As the District Court explained, “Avian influenza is
caused by a type A virus with symptoms that . . . vary from a
mild disease with little or no mortality to a highly fatal disease
depending on various factors.” App. at 9. The viruses are
classified into “low pathogenic and highly pathogenic forms
based on the severity of the illnesses they cause. Although both
demonstrate differing clinical signs in affected birds, both forms
1
“Domestic animals” is broadly defined to include any
“animal maintained in captivity.” 3 Pa. C.S. § 2303.
4
. . . are highly contagious and have a potentially devastating
effect on the poultry industry[,]” id., due to the viruses’ ability
to rapidly spread from flock to flock. App. at 1331
According to the Declaration of Dr. John Enck, V.M.C.,
Bureau Director for Animal Health and Diagnostic Services of
the Pennsylvania Department of Agriculture, low pathogenic
avian influenza:
typically causes little or no clinical signs of illness
in infected birds. However, some low pathogenic
virus strains are capable of mutating into high
pathogenic virus strain [sic] that causes severe
clinical signs and high mortality rates in flocks.
Therefore, low pathogenic avian influenza is
taken very seriously and steps need to be taken to
contain the spread of the disease quickly.
App. at 1331.
At his deposition, Dr. Enck described an outbreak of
avian influenza that struck the Commonwealth in 1983. He
explained that “everyone” wanted to prevent a reoccurrence.
[T]here were about seven and a half million birds
lost. The infection went to high path avian
influenza and indemnities paid during that period
. . . were close to $63 million, and I guess the total
cost to the industry was like $84 million. . . . [I]n
other words, it was a very big outbreak.
5
App. at 1273. He characterized the 1983 outbreak as
“catastrophic.” Id. Although he did not know for a fact that the
outbreak began as a “low path” outbreak that mutated to a “high
path” one, he stated, “that has happened in many of the
outbreaks around the world. . . and it is always the biggest fear.
. . ”. Id.
According to a report of the Center for Disease Control
and Prevention, avian influenza occurs naturally in the intestines
of wild birds, and it can be highly contagious and potentially
fatal in domesticated animals such as chickens, ducks, and
turkeys. Centers for Disease Control and Prevention,
Information about Avian Influenza (Bird Flu) and Avian
Influenza A (H5N1) Virus (May 24, 2005), available at
http://www.cdc.gov/flu/avian/gen-info/pdf/avianflufacts.pdf.2
Although the virus does not usually infect humans, it has that
potential and does infect humans occasionally.
In order to control the spread of diseases such as avian
influenza, the PDA sometimes finds it necessary to “depopulate”
diseased poultry.3 Owners of flocks that the PDA orders
depopulated under the Domestic Animal Law are entitled to
2
Last viewed on August 30, 2005.
3
“Depopulation” appears to be industry jargon for killing
or euthanizing a flock. The District Court explained that the
term “include[s] quarantining and destroying . . . flocks known
to be, or suspected of being, infected with the virus.” App. at 10.
6
compensation pursuant to that statute. 3 Pa.C.S. § 2331. Owners
of flocks can also be compensated for agreeing to depopulate
suspicious flocks in the absence of a formal order from the PDA
if there is evidence that the virus is present. This is known as
“friendly condemnation.” App. at 1273.
The PDA has established procedures for combating and
containing an outbreak of avian influenza. App. at 1518-1525.
The protocols in place at the time of the outbreak at issue in this
appeal may be summarized as follows: (1) once a presumptive
diagnosis of avian influenza was made, the PDA was required
to order an immediate quarantine, app. at 1518; (2) additional
testing would then establish whether or not the preliminary
diagnosis was accurate, and whether authorities were really
confronted with avian influenza or a similar contagious disease;
(3) when certain conditions existed and avian influenza was
“confirmed,” the flock would be depopulated, and the owner
thereby would become eligible to receive compensation in the
amount of 67% of the appraised value of the flock, plus
compensation for the cost of cleanup and disposal; (4)
compensation paid under the Domestic Animal law had to be
approved by the PDA.
A diagnosis of avian influenza was deemed confirmed,
and the flock was therefore subject to depopulation if tests
confirmed:
Signs suggestive of [avian influenza] and one of
the following
7
positive virus isolation or sero-positivity and
supporting epidemiological evidence, or
[was] positive for any test on surveillance and
positive on follow-up virus isolation in samples
collected by PDA, PSU or NBC, or
Positive for virus isolation on surveillance and
sero-positive on follow-up samples collected by
PDA, PSU or NBC.
App. at 1523.
Under the PDA’s protocol, a flock could be quarantined
if it:
[tested] [p]ositive for any test on surveillance, or
[s]howed [s]igns suggestive of [avian influenza]
and [there was] supporting epidemiological
evidence, or
[was] sero-positive . . . or
[had] Likely exposure to a confirmed positive
flock.
Id.
The quarantine would be removed if further testing
confirmed that the virus had run its natural course, or if
8
additional testing established that the flock was not actually
infected despite preliminary indications to the contrary. Id.
Additional testing of the contaminated flock to confirm a
preliminary indication of avian influenza began only after a four
week period, and in large flocks of over 300 birds testing could
last several weeks. In the meantime, of course, the owners
could not sell the suspicious flock or ship any birds from that
flock.
In combating communicable diseases such as avian
influenza, the PDA works closely with “stakeholders” in the
affected industry “to ensure that the industry will cooperate with
the Department to stop the spread of the disease.” App. at 1332.4
This communication and coordination with affected individuals
“serves to alert the poultry industry that a threatening virus is
prevalent in the Commonwealth; and it encourages biosecurity.”
Id. Dr. Enck testified without contradiction at his deposition
that “without industry support, there’s no way you can control
an infection.” App. at 1274. Accordingly, the PDA seeks and
requests “logistical support” in imposing quarantines and
ordering depopulation. Id. The PDA thus solicits the opinion of
stakeholders when combating an outbreak such as avian
4
Dr. Enck defined “stakeholders” as “people that have
birds in the industry that are affected, that could be affected, by
the disease itself.” App. at 1268. He defines “‘poultry industry’
to include any individual, business or other entity who
participates in the growing, production, sale, transport or
processing of poultry in Pennsylvania.” Id.
9
influenza, however, Dr. Enck, as the Commonwealth’s
veterinarian makes the “final decision.” 5
C. The Reichley Brothers Farm, and the 2001 Outbreak.
Appellants Galen and Allen Reichley, doing business as
“Reichley Brothers Farm,” produce poultry (particularly chicken
broilers) for human consumption. Reichley Brothers Farm
acquires much of the poultry it sells by contracting with various
poultry farmers who are in the business of raising poultry for
sale. Reichley Brothers also sells poultry for distribution via the
New York Live Bird Market (“NYLBM”) through distributors
such as Anthony Campanelli.6
5
Although Dr. Enck testified that he makes the “final
decision,” it is clear from his testimony that he is actually
charged with making the final recommendation to the Secretary
of Agriculture, “and then the decision is made.” App. at 1269.
However, the “stakeholders,” (here, Penn Ag Industries) tell Dr.
Enck “what they think [his] step should be.” Id.
6
Customers who shop at the NYLBM are able to observe
poultry, select a particular bird, and have it killed, plucked, and
eviscerated before purchasing it for consumption. The market
relies primarily upon sales to ethnic groups whose members
either prefer or require poultry to be killed and prepared in a
particular manner before being eaten. According to the District
Court, the NYLBM had grown from one main wholesaler
twenty-five years ago, to seventy-six registered retailers at the
time this suit was filed. App. at 8.
10
Appellants allege specific injuries with respect to four
flocks of chickens that had been raised by poultry farmers under
contract to Reichley Farms. Although we will briefly set forth
the underlying facts as to each of those four chicken flocks, we
must begin our discussion with the Ephrata Pennsylvania duck
flock since the circumstances surrounding that flock are very
relevant to appellants’ allegations.
Penn Ag Industries is a trade association that includes
farmers and growers involved in the poultry business.7
In early December, 2001, the PDA was alerted to the
presence of avian influenza in central Pennsylvania on two area
farms. A week or two later, James Shirk, Assistant Vice
President of Penn Ag Industries, called two meetings of various
persons in the poultry industry to discuss options for handling
the virus and strategies for handling a contaminated duck flock
in Ephrata, Pennsylvania.
7
Penn Ag Industries includes a Poultry Council. It is not
clear from the record whether the Poultry Council is a division
or subgroup within Penn Ag Industries or if it is comprised of
the entire membership of Penn Ag Industries. In their brief,
appellants argue that Penn Ag Industries is “involved in
lobbying and making political contributions through a political
action committee to further the aims of ‘agribusiness.’”
Appellants’ Br. at 15.
Both sides agree that Penn Ag Industries as a trade
association that represents stakeholders in the poultry industry.
11
It is uncontested that Galen Reichley attended the
December 18, 2001, meeting that Shirk called to discuss
concerns about an outbreak of avian influenza. Penn Ag
Industries had been informed that a duck flock in Ephrata had
been quarantined after testing positive for avian influenza, but
that the owner was refusing to voluntarily depopulate the flock.
The PDA had not issued any order to depopulate; therefore, the
PDA could not depopulate the flock without the owner’s
consent. Since the owner would not consent, Penn Ag Industries
offered to purchase the flock from the owner using money from
an emergency fund it maintained for that purpose, and then
depopulate the flock itself rather than risk waiting for the PDA
to act. However, the owner refused. The organization therefore
could not take any further action with regard to that flock.
Accordingly, the flock was never depopulated, and the
quarantine remained in effect until the virus passed and test
results of the flock came back negative.
1. The Rakered Flock.
In order to ship poultry in interstate commerce to get it to
a market or a distributor, Reichley Farms had to test blood
samples from their flocks on a weekly basis. The samples were
submitted to the Penn State Laboratory for analysis.
Deanna Rackered was a poultry grower who raised
poultry under contract with Reichley Farms. On December 19,
2001, the day after Galen Reichley attended the Penn Ag
Industries meeting and learned that the owner of a quarantined
duck flock in Ephrata was refusing to voluntarily depopulate his
flock, a report from one of the samples taken from the Reichley
12
flock showed that flock was “suspicious for Avian Influenza
virus . . . .” 8 App. at 1350.
The next day, the PDA quarantined the Rackered flock
and Dr. David Henzler, a PDA veterinarian and epidemiologist
for the Commonwealth of Pennsylvania, collected further blood
and tissue samples. The quarantine came at an unfortunate time
for Reichley Brothers because the Rackered chickens were
raised specifically for Christmas and New Years Eve
celebrations and were to be sold at the NYLBM. They were
larger than ordinary broilers, and were steadily advancing
towards “the end of their projected lifespan in any event.”
Appellants’ Br. 22. These birds had, in fact, been kept longer
than poultry is normally kept so that they would attain the larger
size that is desirable for chickens that are sold at Christmas and
New Years at the NYLBM. Appellants’ Br. at 22.
A meeting of Penn Ag Industries was called (apparently
at James Shirk’s request). Those who attended the meeting
reached a consensus to depopulate the Rackered flock.
Although Galen Reichley attended this meeting, he did not voice
an objection to the consensus of the group. He testified that he
did not realize that he could refuse to comply with the decision.
8
In their brief, appellants note that the tests that returned
these results are used for preliminary screening and “are the
least reliable indicators for Avian Influenza.” Appellants’ Br. at
21.
13
On December 21, 2001, Galen Reichley received a call
from James Shirk and Dr. Bruce Schmucker of the PDA. They
informed Reichley that subsequent testing had established that
the Rackerd flock was not infected with avian influenza after all.
However, since the quarantine had not been lifted, the birds still
could not be shipped. According to appellants, “there was no
protocol for lifting a quarantine under these circumstances.”
Appellants’ Br. at 22. Moreover, Dr. Schmucker could not tell
Reichley when the quarantine would be lifted, saying only that
it was “a legal issue.”
Since they had no way of knowing if they would be able
to ship the flock in time to get it to the NYLBM for the holidays,
and since the birds were at the end of their normal lifespan in
any event, Reichley Brothers proceeded with the depopulation,
and the PDA paid 66 1/3% of the value of the flock
($24,332.62) as well as $2,876 to cover the cost of depopulation
and the resulting clean up.
2. The Zimmerman Flock and Stroup Flock 1
On January 3, 2002, Galen Reichley took blood samples
from flocks on the Zimmerman farm and from a flock on one of
Curtis Stroup’s farms (this Stroup flock is referred to as “Stroup
1”). Stroup 1 consisted of 13,322 birds and the Zimmerman
flock consisted of 7,900 birds. App. at 863. Preliminary tests
for both flocks came back positive for avian influenza on
January 7, 2002. Almost immediately, the PDA quarantined
both farms, and on January 8, 2002, James Shirk called a
meeting to discuss the status of both flocks. Once again, a
consensus was reached to depopulate the flocks and although
14
Galen Reichley attended, he again claims that he did not realize
he could refuse to depopulate the flocks despite the decision of
Penn Ag Industries.
On January 11, 2002, Reichley Brothers destroyed the
Stroup 1 and Zimmerman flocks under the supervision of PDA
representatives. The PDA again indemnified Reichley Brothers
66 1/3% of the value of the Zimmerman flocks plus
compensation for the cost of depopulation and clean up. The
PDA also compensated Reichley Brothers in the same amount
for the Stroup 1 Flock. On March 29, 2002, the PDA lifted the
quarantine of the Zimmerman farm, and on April 19, 2002, the
PDA lifted the quarantine of the Stroup 1 Farm.
According to Galen Reichley’s declaration, a
representative of the United States Department of Agriculture
was present when the Stroup 1 and Zimmerman flocks were
destroyed and voiced concerns because the flocks looked
healthy. Based upon observations of the flock then, the
representative purportedly thought that depopulation was not
justified. Appellants also claim that a representative of Penn
State thought that further testing should be conducted and that
depopulation was neither indicated nor justified. Appellants’ Br.
at 27. However, since the U.S. Department of Agriculture could
not “overstep the Pennsylvania Department of Agriculture,”
Appellants’ Br. at 27, and because the birds had already been
significantly weakened from having feed and water withdrawn
to facilitate depopulation, the depopulation proceeded, and the
entire flock was destroyed.
15
After the flock was destroyed, Galen Reichley received
a call from Dr. David Henzler, epidemiologist for the PDA, who
informed Reichley that subsequent blood tests of both the
Zimmerman and Stroup 1 flocks confirmed that they were
actually negative for avian influenza.
3. Stroup 2 Flock
At the January 8, 2002, meeting, Penn Ag Industries also
offered to purchase Curtis Stroup’s second flock (“Stroup 2")
consisting of 20,000 chickens for $15,000. App. 863, 1156.
The PDA would not depopulate that flock because none of the
testing indicated that avian influenza was present, and the
Commonwealth could not expend funds without any indication
that the expenditure of public funds was required. In addition,
absent evidence of avian influenza infestation, the PDA would
not quarantine the farm housing the Stroup 2 flock.
Nevertheless, the members of Penn Ag Industries who
attended were quite concerned about the potential for an
outbreak in that flock because it shared a common caretaker
with Stroup 1. Thus, the members at the meeting thought that
there was a significant risk that the supposed infection from
Stroup 1 would eventually spread to Stroup 2. App. at 1516.
Accordingly, a roll call vote was taken, and those in attendance
decided to purchase Stroup 2 and then destroy it. 9 Galen
9
Penn Ag Industry members who were competitors of
Reichley Farms were present at this meeting, but abstained from
voting.
16
Reichley and Dr. Enck were both present at this meeting.
Reichley once again did not object because he felt “backed into
a corner.” Accordingly, Reichley Farm sold the flock to Penn
Ag Industries for the statutorily defined level of compensation.
The flock was thereafter destroyed on January 11, 2001.
II. DISTRICT COURT PROCEEDINGS.
Thereafter, Reichley Brothers and Curtis Stroup initiated
the instant litigation in the United States District Court for the
Middle District of Pennsylvania. In their amended complaint
they alleged that the PDA improperly delegated its authority
under the Domestic Animal Law to Penn Ag Industries and that
Penn Ag Industries therefore acted under color of state law to
unconstitutionally deprive them of their property. Amended
Compl. ¶153-56. The plaintiffs also charged Dennis C. Wolfe,
the Secretary of Agriculture of Pennsylvania, in his official
capacity. Plaintiffs alleged a violation of procedural and
substantive due process and sought prospective injunctive relief.
Plaintiffs had initially named the Commonwealth of
Pennsylvania, and Samuel Hayes, former Secretary of
Agriculture, as defendants. However, the District Court
dismissed the Commonwealth pursuant to the Eleventh
Amendment. The court also dismissed plaintiffs’ claims against
Hayes, concluding that they were either barred by the Eleventh
Amendment or that he enjoyed qualified immunity.10
10
Appellants’ original complaint also included claims
against other defendants, including feed suppliers, as well as
other federal and state claims. However, appellants do not
17
Thereafter, the District Court granted summary judgment in
favor of Dennis C. Wolff and Penn Ag Industries, and this
appeal followed.
III. DISCUSSION.
Our review of a District Court’s grant of summary
judgment is plenary. Anderson v. Consol. Rail Corp., 297 F.3d
242, 246 (3d Cir. 2002). In reviewing the grant of summary
judgement we must view the facts in the light most favorable to
the appellants and affirm only when there is no genuine issue as
to any material fact so that appellees are entitled to judgment as
a matter of law. Id. at 247.
The plaintiffs have the burden of establishing liability
under § 1983 by a preponderance of the evidence. Section 1983
provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and law, shall be liable to the party
appeal the dismissal of those claims or the claims against those
other defendants.
18
injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983.
Accordingly, there can be no cause of action under §
1983 absent violation of a right secured by the Constitution or
the laws of the United States. The defendant must also act
under color of official authority. West v. Atkins, 487 U.S. 42, 48
(1988).
A. Penn Ag Industries Did Not Act Under Color of Law.
Here, even assuming that appellants could somehow
establish an unconstitutional taking, the record would still not
establish that Penn Ag Industries acted under color of state law.
It is undisputed that Reichley Brothers received no written order
from the Department of Agriculture directing condemnation of
its flocks, nor is there any evidence that the PDA somehow
instructed Penn Ag Industries to purchase Stroup 2, or that it
instructed the Secretary of Agriculture to impose a quarantine.
Rather, the heart of appellants’ attempt to find state action lies
in their allegation that the challenged actions “were done with
the full knowledge and complicity of representatives of the
Pennsylvania Department of Agriculture . . .”. Appellants’ Br.
at 7. Appellants also claim that the PDA delegated authority to
Penn Ag Industries in lieu of establishing adequate protocols to
address an outbreak of avian influenza. As we noted earlier, the
Commonwealth does have certain protocols in place for when
a potential outbreak of avian influenza arises; however, those
protocols did not include procedures for determining when to
19
lift a quarantine, or how to expeditiously respond when
preliminary test results are subsequently shown to be incorrect
or “false positives.” 11
Appellants’ 1983 claim therefore rests upon their
contention that the state delegated those governmental decisions
to Penn Ag Industries and thereby transformed the actions of
that private trade association into the actions of the state for
purposes of § 1983. See Biener v. Calio, 361 F.3d 206, 216 (3d
Cir. 2004) (explaining that the Fourteenth Amendment protects
individuals only against government action, unless the state has
delegated authority to a private party, thereby making the actor
a state actor and implicating the Due Process Clause). However,
the District Court correctly determined that the record belies
11
Appellants’ concern over the lack of specific direction
for lifting a quarantine clearly has some legitimacy given the
destruction of flocks that were subsequently proven to not have
been infected with avian influenza. However, the inadequacy of
protocols for responding to infectious disease does not, without
more, establish the proverbial “federal case” under § 1983.
Moreover, Dr. Enck testified that the Secretary of Agriculture
took the position that “subsequent testing doesn’t have anything
to do with the control of the infection of a highly contagious
disease.” App. at 1271. “[I]f we had positive avian influenza or
suspect cases, we were to depopulate.” Id.
Nevertheless, defendants state in their brief that, “in light
of lessons learned during the 2001-2002 outbreak . . . several of
the protocols and procedures have been improved.” Appellees’
Br. at 13.
20
appellants’ attempts to weave state action from the thread of
industry involveme nt a n d c o o p e r a tio n w ith the
Commonwealth’s efforts to contain and combat this highly
infectious disease.
It is undisputed that Penn Ag Industries played a
significant role here. As noted above, defendants concede that
participation of persons involved in the poultry industry is
crucial to controlling outbreaks such as avian influenza.
Defendants also concede that industry participation has
historically been a basic tenet of the operation of the PDA.
However, participation of the stakeholders does not mean that
the PDA delegated state authority to them. The Secretary of
Agriculture, and only the Secretary of Agriculture, had authority
to impose a quarantine or order depopulation. It is clear that,
despite his outreach to Penn Ag Industries and the stakeholders
it represented, the final decision about quarantine and
depopulation rested solely with the Secretary of Agriculture who
exercised that authority after considering the recommendation
of Dr. Enck, the Commonwealth’s veterinarian. As we have
noted above, Dr. Enck clearly did seek out Penn Ag Industries’
advice and participation, but this record does not support a
conclusion that the communication and cooperation is
tantamount to a delegation of official authority.
Dr. Enck stated during his deposition, “[w]hatever [Penn
Ag Industries] decides, it still winds up that PDA is the end
voice that says ‘yes, this is what we are going to do.’” App. at
1270. That statement is consistent with the other evidence on
this record despite appellants’ contentions.
21
Appellants’ claim of a constitutional deprivation is
further undermined by the fact that Galen Reichley consented to
the challenged actions here. Notwithstanding hyperbolic
pronouncements that the consent was the product of a “mob
atmosphere” and coercion,12 Galen Reichley clearly knew about
12
Galen Reichley stated:
I went to this meeting . . . with 40 people with a
noose around our neck. And, you know, do I kick
when the bucket’s kicked out from under my feet?
I don’t know. All I . . . said is you guys are going
to put me out of business. And they all smiled at
each other and walked out of the room.
App. at 1660. The record places Reichley’s characterization
of the “mob” in its context. Reichley’s explanation of this
“mob” and the pressure that drove him to depopulate the
Zimmerman flock further undermines his attempt to find state
action. Reichley explained that one of the people at the meeting
was John Martin, whose chicken farm was next to Reichley’s.
Reichley testified:
John put pressure on me alone to get rid of these
birds, . . . John knew I had a house right next to
his house, and he was concerned. And I have no
qualms about John being concerned. I probably
would have been concerned too. . . . [H]e was
concerned for the safety of his birds. And he just
kept saying, when are you going to gt rid of these
22
the situation involving the Ephrata duck flock. That situation
demonstrated that, absent official action by the PDA, Penn Ag
Industries could do nothing without the owner’s consent. This
only confirms that it is the Secretary of Agriculture acting on
behalf of the Commonwealth that has the authority to
depopulate a flock unless the owner agrees; just as Dr. Enck
testified.
Galen Reichley clearly knew that he could wait for the
results of more definitive tests for his flocks, but nevertheless
agreed to depopulate them in the absence of a formal order from
the PDA to do so. He was compensated for all of the birds that
were destroyed as well as for costs of depopulation and clean
up, and he does not make a serious effort to argue that the
compensation was so deficient so as to constitute an
unconstitutional taking.
Reichley admitted that he never asked “what will happen
if I don’t put my birds down,” app. at 1660, and a reasonable
fact finder could only conclude that he, in fact, knew the answer
to that question, despite his assertions to the contrary. It is clear
that appellants had a viable option and that they knew as much.
Moreover, even assuming that the pressure at the meetings of
birds. . . I want that house empty in a week’s time.
. . He said just do it as fast as you can get it
emptied. . . I don’t want no exposure at all. . . . I
said, yeah, I’m going to kill them today, John.
You know, it was that type of conversation.
Id. at 1661 (emphasis added).
23
Penn Ag Industries was so great that it somehow negated
Reichley’s consent, there would still be precious little on this
record, other than appellants’ allegations, to establish that Penn
Ag Industries was a state actor. That is clearly not enough to
withstand summary judgment.13 See Fair Housing Council of
Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d
71, 76 (3d Cir. 1998) (“something more than . . . naked
allegations [are] required at the summary judgment stage.”).
B.
Appellants devote a substantial part of their brief to
arguing that the District Court erred in relying upon the
Declaration of Samuel Hayes, the former Secretary of
Agriculture. Appellants’ Br. at 42 to 46. Appellants did not
originally depose Hayes because he was not a defendant during
the initial discovery. It was not until the amended complaint
was filed that Hayes and Wolff were included in this action.
Appellants’ Br. at 42. In granting summary judgment to the
defendants, the District Court stated that it, “expressly
eschew[ed] reliance upon the Declaration of Samuel Hayes, Jr.
13
We do not, of course, ignore that the PDA did
communicate with Penn Ag Industries and seek its input into
crucial decisions. As we explain above, defendants admit that
such industry involvement plays a crucial role in responding to
outbreaks such as avian influenza. However, as we also
explained above, the record simply does not support appellants’
attempt to “spin” the cooperation and communication into a
delegation of state authority.
24
This does not prejudice appellants’ claim in any way.”
Nevertheless, the District Court at times quoted verbatim from
portions of Hayes’ Declaration. However, any error in doing so
was harmless because, even absent Hayes’ declaration, it is clear
that the PDA did not delegate its authority to Penn Ag
Industries, the private trade association was not a state actor, and
that appellants agreed to the actions they now challenge.
D. The Due Process Claim
Appellants’ due process claim fares no better. A
procedural due process claim requires us to consider three
factors: (1) the private interest affected by the official action; (2)
the risk that the plaintiff will suffer an erroneous deprivation
through the procedure used and the probable value if any of
additional procedural safeguards; and (3) the government’s
interest. Mathews v. Eldrige, 424 U.S. 319, 334-35 (1976).
“[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Id. at 334. It is
not disputed that avian influenza endangers the health of poultry
sold for human consumption, or that it threatens public health.
Nor can it be seriously contended that an outbreak does not
require prompt action that includes quarantining suspected
flocks to prevent further contamination. To the extent that
appellants are insisting upon notice and an opportunity for a
hearing before depopulation, the District Court readily and
correctly rejected that claim. Due process does not require pre-
deprivation notice and hearing where there is an adequate
scheme to compensate the property owner for the deprivation.
25
See Parratt v. Taylor, 451 U.S. 527, 543 (1981) (overruled on
other grounds by Daniels v. Williams, 474 U.S. 327 (1986)); see
also Zinermon v. Birch, 494 U.S. 113, 115 (1990).14
We noted at the outset that appellants also mention a
substantive due process claim in their brief. It is not at all
apparent that this brief mention is sufficient to raise the issue,
nor is it apparent that appellants seriously intended to press that
claim. Nevertheless, assuming that appellants are adequately
raising a substantive due process claim, it can quickly be
disposed of. In United Artists Theater v. Township of
Warrington, 316 F.3d 392, 399 (3d Cir. 2002) we explained:
14
Appellants have not raised an issue of the adequacy of
the compensation in the District Court, and they have only
casually mentioned the issue here. See Appellant Reply Br. 7.
While that claim is included in their amended complaint, that is
not sufficient to preserve the issue for appeal. “[P]articularly
where important and complex issues of law are presented, a far
more detailed exposition of argument is required to preserve an
issue.” Frank v. Colt Industries, Inc., 910 F.2d 90, 100 (3d Cir.
1990); see also Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993) (“it is also well settled, however, that casual mention of
an issue in a brief is cursory treatment insufficient to preserve an
issue for appeal”). If appellants seriously believed that they had
a cause of action based upon the amount of the compensation
they received, they had an obligation to raise the issue in an
appropriate manner to allow the District Court to address it. See
Queen City Pizza, Inc. v. Dominos Pizza, Inc., 124 F.3d 430,
444 (3d Cir. 1997).
26
In County of Sacramento v. Lewis, the Supreme
Court explained the standard that applies when a
plaintiff alleges that an action taken by an
executive branch official violated substantive due
process. The Court observed that the core of the
concept of due process is protection against
arbitrary action and that only the most egregious
official conduct can be said to be arbitrary in the
constitutional sense.
(internal quotation marks and citations omitted). That is so
clearly not the situation here that further discussion of the point
is not necessary.
IV. CONCLUSION.
Accordingly, for the foregoing reasons, we will affirm
the District Court’s grant of summary judgment in favor of
Dennis Wolff and Penn Ag Industries.
27