Humane Soc'y of the United States v. Perdue ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2019 Decided August 23, 2019
No. 18-5188
HUMANE SOCIETY OF THE UNITED STATES, ET AL.,
APPELLEES/CROSS-APPELLANTS
v.
SONNY PERDUE, SECRETARY OF THE UNITED STATES
DEPARTMENT OF AGRICULTURE,
APPELLANT/CROSS-APPELLEE
NATIONAL PORK PRODUCERS COUNCIL,
APPELLANT/CROSS-APPELLEE
Consolidated with 18-5197, 18-5201
Appeals from the United States District Court
for the District of Columbia
(No. 1:12-cv-01582)
Lewis S. Yelin, Attorney, U.S. Department of Justice,
argued the cause for appellant/cross-appellee Sonny Perdue.
With him on the briefs were Scott R. McIntosh, Attorney, and
Stephen A. Vaden, General Counsel, U.S. Department of
Agriculture.
2
Rebecca E. Bazan argued the cause for appellant/cross-
appellee National Pork Producers Council. With her on the
briefs was John M. Simpson. Michelle C. Pardo entered an
appearance.
Matthew E. Penzer argued the cause and filed the briefs
for appellees/cross-appellants. Ralph E. Henry and Peter A.
Brandt entered appearances.
Before: GRIFFITH, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: In this case, a pork farmer
contends that the government unlawfully has permitted funds
for promoting the pork industry to be used instead for lobbying
on the industry’s behalf. We consider whether, on summary
judgment, the farmer has proven his constitutional standing to
maintain this lawsuit.
I
The Pork Promotion, Research, and Consumer
Information Act requires the federal government to promote
the American pork industry. The Act authorizes the
government to collect assessments (often called “checkoffs”)
from pork producers to finance efforts to “strengthen the
position of the pork industry in the marketplace,” 7 U.S.C.
§ 4801(b)(1)(A), and “maintain, develop, and expand markets
for pork and pork products,” id. § 4801(b)(1)(B). These
assessments are paid to the National Pork Board, an entity
established to “develop … proposals for promotion, research,
and consumer information plans and projects.” Id.
§ 4808(b)(1)(A). The Department of Agriculture must approve
the Board’s promotional efforts and its annual expenses. Id.
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§ 4808(b)(1)–(3). The Board may contract with private entities
to carry out those efforts, again with USDA’s approval. Id.
§ 4808(b)(4)(A). The Act prohibits using checkoff funds “for
the purpose of influencing legislation.” Id. § 4809(e).
In 2006, the Board purchased four trademarks from the
National Pork Producers Council, a private lobbying
organization for the pork industry. The trademarks were
associated with the slogan “Pork: The Other White Meat.” The
agreement required the Board to pay $3 million per year for
twenty years, but permitted the Board, with advance notice, to
cancel the contract for any reason. In 2011, the Board adopted
a new marketing campaign and stopped using three of the four
trademarks, but it declined to end the contract and continued to
make the annual payments.
In 2012, the Humane Society of the United States, Iowa
Citizens for Community Improvement, and Harvey Dillenburg
filed this lawsuit against the Secretary of Agriculture. The
Humane Society is an animal-protection organization; Iowa
Citizens is an organization of farmers; and Dillenburg is an
individual pork farmer. They sought to challenge both
USDA’s initial approval of the contract and its later approvals
of the annual payments. They contend that the contract
impermissibly funds the Council’s lobbying activities, which
has become more apparent as the Board continues to pay for
trademarks that it no longer uses. The complaint alleges that
this misuse of checkoff funds “diminishes the resources
available for promotions or other legitimate programs” under
the Act, thus “diminishing Mr. Dillenburg’s return on his
compelled checkoff investment.” J.A. 51. The complaint
further alleges that Dillenburg is harmed by the payment of
funds to the Council, “a lobbying organization that pushes for
policies” he opposes. Id.
4
On a motion to dismiss, the district court held that none of
the plaintiffs adequately alleged standing. Humane Soc’y v.
Vilsack, 19 F. Supp. 3d 24 (D.D.C. 2013) (Humane Society I).
In part, the court reasoned that Dillenburg’s “claimed reduced
return on investment” was “unsupported by facts,” because
studies showed that the checkoff program yielded increasing
returns to farmers over the periods at issue. Id. at 35–36.
This Court reversed. Humane Soc’y v. Vilsack, 797 F.3d
4 (D.C. Cir. 2015) (Humane Society II). We held that
Dillenburg’s first alleged injury—reduced “return on his
investment” from the misuse of checkoff funds—described a
“classic form of concrete and particularized harm: actual
economic loss.” Id. at 8–9. We credited allegations that the
Board was paying too much for the trademarks and that other
advertising would have better propped up demand for pork.
See id. We therefore assumed that “the price at which pork
producers can sell their hogs is lower than it would be if the
Board were spending those funds on legitimate promotions.”
Id. at 9. After concluding that Dillenburg thus adequately had
alleged standing, we declined to consider whether the Humane
Society or Iowa Citizens had done so. Id. at 10.
On remand, the parties entered a joint stipulation. USDA
agreed, in deciding whether to approve the 2016 and future
contract payments, to re-value the trademarks and to consider
evidence submitted by the plaintiffs. At the same time, the
plaintiffs agreed to dismiss their claims for recoupment of
funds already spent. The Council intervened as a defendant
shortly thereafter. After completing its review, USDA decided
to authorize future contract payments.
The parties then filed cross-motions for summary
judgment. In support of standing, Dillenburg submitted a
declaration stating that the contested payments prevented
5
checkoff funds “from being used for promotions and other
legitimate demand-enhancement activities” required by the
Pork Act, thus depriving him “of the direct economic benefit
of the lawful and effective promotions to which [he is] entitled
as a statutory beneficiary.” J.A. 147. Dillenburg further stated
that he opposed using checkoff funds to lobby for “policy
activities that [he] believe[s] are harmful to [him].” Id. Neither
the Humane Society nor Iowa Citizens filed standing affidavits.
The district court held that Dillenburg adequately proved
standing. Humane Soc’y v. Perdue, 290 F. Supp. 3d 5, 15–18
(D.D.C. 2018) (Humane Society III). The court reasoned that
Dillenburg, as a pork farmer, “is affected by the market price
for pork.” Id. at 16. Moreover, it concluded that the alleged
diversion of “millions of checkoff dollars” from legitimate
pork promotion was enough to show “economic loss.” Id. at
17. After finding standing, the court rejected challenges to
approvals made by USDA before 2016 as either untimely or
moot, but it held that the 2016 decision to continue paying for
the trademarks was arbitrary and capricious. See id. at 18–30.
All parties have appealed. Our review is de novo. Trudel
v. SunTrust Bank, 924 F.3d 1281, 1285 (D.C. Cir. 2019).
II
The Constitution limits the “judicial Power of the United
States” to “Cases” or “Controversies.” U.S. Const. art. III,
§§ 1–2. “To state a case or controversy under Article III, a
plaintiff must establish standing.” Ariz. Christian Sch. Tuition
Org. v. Winn, 563 U.S. 125, 133 (2011). The test for standing
is settled: a plaintiff must have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016).
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In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the
Supreme Court addressed the plaintiff’s burden to prove
standing. The Court explained that “each element must be
supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the
litigation.” Id. at 561. Thus, at the pleading stage, the
complaint must “‘state a plausible claim’ that each element of
standing is satisfied.” Hancock v. Urban Outfitters, Inc., 830
F.3d 511, 513 (D.C. Cir. 2016) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678–79 (2009)). But on summary judgment, “the
plaintiff can no longer rest on such mere allegations.” Defs. of
Wildlife, 504 U.S. at 561 (quotation marks omitted); see
Chamber of Commerce v. EPA, 642 F.3d 192, 201–02 (D.C.
Cir. 2011). Parties must support factual assertions by “citing
to particular parts of materials in the record.” Fed. R. Civ. P.
56(c)(1)(A). So the plaintiff “must set forth by affidavit or
other evidence specific facts” that prove standing. Defs. of
Wildlife, 504 U.S. at 561 (quotation marks omitted); see Scenic
Am., Inc. v. DOT, 836 F.3d 42, 49 n.3 (D.C. Cir. 2016) (“the
plaintiff has the burden to establish the evidentiary basis for its
standing at the summary judgment stage”).
The prior appeal in this case arose from USDA’s motion
to dismiss. In that context, we held that Dillenburg “alleged a
plausible claim to Article III standing” because injury to his
“bottom line” constituted a sufficient injury in fact, and
allegations that we were bound to credit “plausibly” showed
such an injury. Humane Society II, 797 F.3d at 8–10.
Now, on summary judgment, the plaintiffs must prove
injury in fact with “specific facts” in the record. Defs. of
Wildlife, 504 U.S. at 561. But while the plaintiffs’ burden has
grown, their allegations have shrunk. Dillenburg’s declaration
nowhere asserts a diminished return on investment, a reduced
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bottom line, or any similar economic injury. Nor does it
provide evidence that the Board’s alleged misadventures have
reduced the price of pork. Rather, Dillenburg declares that the
misuse of checkoff funds robs him of the “direct economic
benefit of the lawful and effective promotions to which [he is]
entitled as a statutory beneficiary.” J.A. 147. The briefing
doubles down on this point, in contending that a bottom-line,
pocketbook injury is unnecessary: “All that is needed to
establish standing here is evidence that Mr. Dillenburg is a
paying member of the checkoff program, who is therefore
entitled to the statutorily required promotional benefit for his
contributions.” Humane Soc’y Br. at 30; see also id. at 31
(“Unlawful uses of checkoff funds cause injury to …
assessment-paying producers by denying them lawful
promotional programming.”). The plaintiffs also pressed this
theory of injury during oral argument. See, e.g., Oral Arg. at
49:42–47 (“he’s not getting the effective promotional services
that the law requires”), 52:41–48 (“producers … are not getting
the lawful and effective promotional services”).
Dillenburg’s declaration does not prove an injury in fact.
Rather than show harm to his bottom line, Dillenburg instead
complains that he has been deprived of a statutory entitlement
to lawful promotions. But “Article III standing requires a
concrete injury even in the context of a statutory violation.”
Spokeo, 136 S. Ct. at 1549. The plaintiffs must show that the
statute protected “a right to be free of a harm capable of
satisfying Article III.” Jeffries v. Volume Servs. Am., Inc., 928
F.3d 1059, 1064 (D.C. Cir. 2019). On that score, Dillenburg’s
declaration says little. Without elaboration, it speaks of a
“direct economic benefit” that other promotions would have
provided. J.A. 147. But on summary judgment, a party cannot
establish standing with “conclusory allegations of an affidavit.”
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). For
that reason, in Swanson Group Manufacturing LLC v. Jewell,
8
790 F.3d 235 (D.C. Cir. 2015), we held that a declaration
asserting only “economic loss and hardship,” which “told
nothing about the nature” of the loss, was insufficient to defeat
a motion for summary judgment. Id. at 242–43 (quotation
marks omitted). The same is true here—Dillenburg fails to
elaborate on the “direct economic benefit” that he allegedly has
lost because of the Board’s misdeeds.
In concluding that Dillenburg proved standing, the district
court reasoned that Dillenburg, as a pork producer, “is affected
by the market price for pork.” Humane Society III, 290 F.
Supp. 3d at 16. Perhaps so, but Dillenburg’s declaration lacks
any indication that the “price for pork” was “affected” by the
alleged misuse of checkoff funds. The court assumed this
critical fact based on Carpenters Industrial Council v. Zinke,
854 F.3d 1 (D.C. Cir. 2017). See Humane Society III, 290 F.
Supp. 3d at 16–17. Yet Carpenters did not displace settled law
that courts cannot “presume the missing facts necessary to
establish an element of standing.” Swanson, 790 F.3d at 240
(cleaned up). To the contrary, our decision carefully combed
“the complaint and declarations to assess whether the
plaintiff’s assertions suffice to show the elements of standing.”
Carpenters, 854 F.3d at 5. We explained that the declarations
in that case identified specific “harms ranging from lost sales
and diminished production to closures and layoffs.” Id. at 9.
As discussed above, Dillenburg’s one-page declaration makes
no similar showing.
The declaration suggests a second injury: Dillenburg
“oppose[s] the misuse of checkoff funds … for the purpose of
influencing legislation,” because he “believe[s]” those efforts
are “harmful to [him] and other independent farmers.” J.A.
147. This theory of injury also falls short. Plaintiffs cannot
predicate Article III standing on a “mere interest in a problem
or an ideological injury.” PETA v. USDA, 797 F.3d 1087, 1094
9
(D.C. Cir. 2015) (cleaned up). An “interest in the proper
administration of the laws” is canonically “nonconcrete.”
Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009)
(quotation marks omitted). Here, Dillenburg does not explain
how his pork business is harmed by lobbying to promote the
pork industry, let alone identify a specific lobbying activity that
causes him a concrete injury. Instead, Dillenburg highlights
his general opposition to the Council’s lobbying and the
government’s funding of it. This declares “only a generally
available grievance about government,” which “does not state
an Article III case or controversy.” Defs. of Wildlife, 504 U.S.
at 573–74.
Finally, the plaintiffs cannot salvage this case based on the
possible standing of the Humane Society or Iowa Citizens. On
summary judgment, neither organization filed any standing
declarations or affidavits. And now in this Court, the plaintiffs
do not assert the standing of these organizations as an
alternative ground for reaching the merits. The plaintiffs thus
have twice forfeited any claim that these organizations have
standing. See Scenic Am., 836 F.3d at 53 n.4 (“Although a
party cannot forfeit a claim that we lack jurisdiction, it can
forfeit a claim that we possess jurisdiction.”).
* * * *
Because the plaintiffs offer no evidence that the Board’s
alleged misuse of checkoff funds caused them to suffer an
injury in fact, we vacate the district court’s order and remand
with instructions to dismiss the case for lack of standing.
So ordered.