Ellen Levine v. Edward T. Schafer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLEN LEVINE; BEVERLY ULBRICH; 
KRISTA KIELMAN; GRETCHEN
WALLERICH; KANDA BOYKIN;
HUMANE SOCIETY OF THE UNITED
STATES; EAST BAY ANIMAL
ADVOCATES; WESTERN NORTH No. 08-16441
CAROLINA WORKERS’ RIGHTS
CENTER; MISSISSIPPI POULTRY  D.C. No.
CV 05-04764-MHP
WORKERS FOR EQUALITY AND
RESPECT, OPINION
Plaintiffs-Appellants,
v.
THOMAS J. VILSACK,*
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Marilyn Hall Patel, District Judge, Presiding
Argued and Submitted
October 7, 2009—San Francisco, California
Filed November 20, 2009
Before: Alfred T. Goodwin and Pamela Ann Rymer,
Circuit Judges, and George H. Wu,** District Judge.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the current
United States Secretary of Agriculture Thomas J. Vilsack is substituted in
as Defendant-Appellee.
**The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
15441
15442 LEVINE v. VILSACK
Opinion by Judge Wu
15444 LEVINE v. VILSACK
COUNSEL
Sarah Uhlemann, Jonathan R. Lovvorn and Carter Dillard,
The Humane Society of the United States, Washington, D.C.;
and Corey Evans and Geneva Page, Evans & Page, San Fran-
cisco, California, for the appellants.
Gregory G. Katsas, Jonathan F. Cohn, Michael S. Raab and
Henry C. Whitaker, Civil Division, U.S. Department of Jus-
tice, Washington, D.C., for the appellee.
OPINION
WU, District Judge:
Dr. Ellen Levine, Beverly Ulbrich, Krista Kielman,
Gretchen Wallerich, Kanda Boykin, The Humane Society of
the United States, East Bay Animal Advocates, Mississippi
Poultry Workers for Equality and Respect, Western North
LEVINE v. VILSACK 15445
Carolina Workers’ Center, John Doe I, and John Doe II
(henceforth collectively “Levine”) appeal from a summary
judgment ruling in favor of the Secretary of the United States
Department of Agriculture (“Secretary” or “USDA”). This
case involves a dispute concerning whether chickens, turkeys
and other domestic fowl are excluded from the humane
slaughter provisions of what the parties (and references subse-
quent to the enactment) term the “Humane Methods of
Slaughter Act of 1958” (“HMSA of 1958”).1 See 7 U.S.C.
§§ 1901-07. In particular, the parties dispute whether poultry
should be considered “other livestock” as that phrase is used
in that statute. Id. at § 1902(a). Levine challenged USDA’s
enunciation of its position — made most recently on Septem-
ber 28, 2005, in a Federal Register Notice issued by USDA’s
Food Safety and Inspection Service, see Treatment of Live
Poultry before Slaughter, 70 Fed. Reg. 56,624 (Sept. 28,
2005) — that “there is no specific federal humane handling
and slaughter statute for poultry.” Id. at 56,625.
In Levine v. Conner, 540 F. Supp. 2d 1113 (N.D. Cal.
2008), the United States District Court for the Northern Dis-
trict of California (“district court”) determined that, while the
plain meaning of the word “livestock” as used in the HMSA
of 1958 is ambiguous, Congressional intent behind the term
was clear and consistent with the interpretation adopted by the
USDA. Because we conclude that Levine cannot satisfy the
redressability prong of Article III standing, we vacate that
decision and remand to the district court so that it can dismiss
the action.
1
As discussed below, in 1978, Congress enacted pertinent legislation
also termed the “Humane Methods of Slaughter Act.” See Pub. L. No. 95-
445, 92 Stat. 1069 (1978). Levine brought the present litigation pursuant
to the HMSA of 1958 and not the 1978 legislation.
15446 LEVINE v. VILSACK
I. BACKGROUND
A. Statutory Background
In 1958, Congress passed the HMSA of 1958. See Pub. L.
No. 85-765, 72 Stat. 862 (1958) (codified as amended at 7
U.S.C. §§ 1901-07). That legislation mandated (and continues
to mandate) that “the slaughtering of livestock and the han-
dling of livestock in connection with slaughter shall be carried
out only by humane methods.” 7 U.S.C. § 1901. It also autho-
rized and directed the Secretary to designate “humane” meth-
ods of slaughter conforming “to the policy stated in this
chapter” for “each species of livestock.” Id. at § 1904(b).
When enacted, section 1902 set forth “two methods of
slaughtering and handling” as humane:
(a) in the case of cattle, calves, horses, mules, sheep,
swine, and other livestock, all animals are rendered
insensible to pain by a single blow or gunshot or an
electrical, chemical or other means that is rapid and
effective, before being shackled, hoisted, thrown,
cast, or cut; or
(b) by slaughtering in accordance with the ritual
requirements of the Jewish faith or any other reli-
gious faith that prescribes a method of slaughter
whereby the animal suffers loss of consciousness by
anemia of the brain caused by the simultaneous and
instantaneous severance of the carotid arteries with
a sharp instrument.[2]
Id. § 1902 (emphasis added). Congress provided an enforce-
ment provision, but only in the form of generally prohibiting
2
A 1978 amendment added “and handling in connection with such
slaughtering” at the close of this sentence. See Pub. L. No. 95-445, 92
Stat. 1069 (1978).
LEVINE v. VILSACK 15447
the federal government from purchasing livestock products
where the animals were slaughtered by methods other than
those designated and approved by the Secretary. See Pub. L.
No. 85-765, 72 Stat. 862, 862-63 (codified at 7 U.S.C. § 1903(repealed 1978)).3 The following year, USDA prescribed
humane slaughter methods for those species expressly identi-
fied in the statute in addition to goats.4 See 24 Fed. Reg. 1549,
1551-53 (Mar. 3, 1959) (to be codified at 9 C.F.R. pt. 180).
The HMSA of 1958 did not define the terms “livestock” or
“other livestock.” Congressional debate revealed views favor-
ing both interpretations advanced here — one that would
include chickens, turkeys and other domestic fowl within its
expanse and one that would preclude such inclusiveness. See,
e.g., 104 Cong. Rec. 1655, 1659 (1958). Numerous versions
of the legislation were advanced, some specifically including
the term “poultry” and some (including the one eventually
adopted) which excluded use of that specific term. See, e.g.,
104 Cong. Rec. 15,368 (1958); H.R. 3029, 85th Cong., Sec.
(g)(2) (1957); H.R. 8308, 85th Cong. § 2 (1957). One provi-
sion (now repealed) of the HMSA of 1958 itself separately
referred to “livestock growers” and the “poultry industry” in
3
7 U.S.C. § 1903 had stated in relevant part:
The public policy declared in this chapter shall be taken into
consideration by all agencies of the Federal Government in con-
nection with all procurement and price support programs and
operations and after June 30, 1960, no agency or instrumentality
of the United States shall contract for or procure any livestock
products produced or processed by any slaughterer or processor
which in any of its plants or in any plants of any slaughterer or
processor with which it is affiliated slaughters or handles in con-
nection with slaughter livestock by any methods other than meth-
ods designated and approved by the Secretary of Agriculture . . . .
4
The HMSA of 1958 also included a provision for identifying carcasses
inspected under the Meat Inspection Act (discussed further in the text
below as the “Federal Meat Inspection Act”), which also covered goats,
that had been slaughtered in accordance with the public policy of the
HMSA of 1958. See Pub. L. No. 85-765, 72 Stat. 862, 863 (codified at 7
U.S.C. § 1904(c) (repealed 1978)).
15448 LEVINE v. VILSACK
connection with the formation of an advisory committee
designed to consult with the Secretary and USDA officials in
the course of carrying out the mandates set forth elsewhere in
the legislation. See Pub. L. No. 85-765, 72 Stat. 862, 863
(codified at 7 U.S.C. § 1905 (repealed 1978)). In addition, in
the prior year, the same Congress had passed the Poultry
Products Inspection Act (“PPIA”) (21 U.S.C. §§ 451-72)
which, among other things, gave USDA authority to inspect
poultry producers for compliance with health and sanitary
requirements, required inspection of poultry after slaughter,
established labeling requirements for poultry products, and
allowed for withdrawal of inspections for noncompliance and
the imposition of civil and criminal penalties for the sale of
adulterated products. See 21 U.S.C. §§ 455-57, 461.
In 1978, in legislation also termed a “Humane Methods of
Slaughter Act” (“HMSA of 1978”), Congress repealed (along
with certain other sections) the only enforcement provision
contained within the HMSA of 1958 (i.e., the prohibition on
federal government purchases of inhumanely slaughtered live-
stock products previously found in 7 U.S.C. § 1903), and, at
the same time, incorporated humane slaughter provisions into
the Federal Meat Inspection Act (“FMIA”) (21 U.S.C.
§§ 601-95), which had originally been enacted in 1907. See
Pub. L. No. 95-445, 92 Stat. 1069 (1978). Unlike the HMSA
of 1958, however, the FMIA imposed inspection requirements
only for “cattle, sheep, swine, goats, horses, mules, and other
equines.” Id. § 2, 92 Stat. at 1069; see also 21 U.S.C.
§ 603(a). As a result, if, upon inspection of the slaughtering
of those animals, the slaughtering practices were not in accord
with those established pursuant to the promulgated regula-
tions, the USDA could suspend mandatory inspection (in
effect cutting off those slaughterhouses from the commercial
marketplace and the consuming public), and could impose
criminal penalties. See 21 U.S.C. §§ 603(b), 604, 676. USDA
then issued regulations implementing the 1978 amendments,
which replaced the pre-existing regulations issued pursuant to
the HMSA of 1958 and covered only those animals listed in
LEVINE v. VILSACK 15449
the FMIA. See 44 Fed. Reg. 37,954 (June 29, 1979). Never-
theless, in enacting the HMSA of 1978, Congress did not
repeal those provisions of the HMSA of 1958 — 7 U.S.C.
§§ 1902(a), 1904(b) — which 1) set forth the specific list of
species for purposes of that earlier statute, 2) included the
terms “other livestock” and “livestock,” and 3) authorized and
directed the Secretary to designate compliant methods of
slaughter.
In 2005, Congress deleted the specific list of animals from
the FMIA and replaced it with the term “amenable species.”
See Agriculture, Rural Development, Food and Drug Admin-
istration, and Related Agencies Appropriations Act, 2006,
Pub. L. No. 109-97, Title VII, § 798, 119 Stat. 2120 (2005).
“Amenable species” was defined to include “those species
subject to the provisions of this chapter on the day before
November 10, 2005” as well as “any additional species of
livestock that the Secretary considers appropriate.” 21 U.S.C.
§ 601(w).5
B. History Of USDA’s Position
In the same month that Congress passed the HMSA of
1958, USDA itself gave some indication that it considered
“[c]hicken eggs, commercial broilers, chickens, and turkeys”
as “[l]ivestock and livestock products.” See Changes in Farm
Production and Efficiency, USDA Statistical Bulletin No.
233, at 4-5 & n.5 (Aug. 1958). In 1960, however, regulations
were issued which defined “livestock products” for purposes
of the HMSA of 1958 to mean any article intended for or
capable of being used as food for either human or animals
which is derived from slaughtered “cattle, calves, horses,
mules, sheep, swine, or goats,” and specifying further that the
5
In 2008, section 601(w) was again amended to specifically include cat-
fish within the definition of “amenable species.” See Food, Conservation,
and Energy Act of 2008, Pub. L. No. 110-234, Title XI,
§ 11016(b)(1)(A)(ii), (iii), 122 Stat. 923, 1369 (2008).
15450 LEVINE v. VILSACK
term “do[es] not include . . . poultry.” 25 Fed. Reg. 11152,
11152 (Nov. 23, 1960). USDA reiterated that position in 1979
in response to inquiries as to whether any humane slaughter-
ing requirements covered chickens following the 1978 amend-
ments.6 See 44 Fed. Reg. 68,809, 68,811 (Nov. 30, 1979). On
September 28, 2005, USDA’s Food Safety and Inspection
Service issued a Federal Register Notice (“the Notice”) enti-
tled “Treatment of Live Poultry Before Slaughter.” 70 Fed.
Reg. 56,624 (Sept. 28, 2005). The Notice indicated that it was
in response to “considerable congressional and public interest
in the humane treatment of animals, including poultry.” Id. In
the Notice, the USDA announced that “[t]he HMSA of 1978
. . . requires that humane methods be used for handling and
slaughtering livestock but does not include comparable provi-
sions concerning the handling and slaughter of poultry.” Id. at
56,624-25 (citation omitted). While it “remind[ed] all poultry
slaughter establishments” that live poultry must be handled
“in a manner that is consistent with good commercial prac-
tices, which means they should be treated humanely” and that
compliance with the PPIA incidentally promoted humane
slaughter, it also indicated that “there is no specific federal
humane handling and slaughter statute for poultry.” Id. at
56,625.
C. Procedural History
Levine filed suit on November 21, 2005, claiming that “in-
humane methods” of poultry slaughter increased the risk of
food-borne illnesses to the plaintiff consumers and health and
safety dangers plus “aesthetic injury” to the plaintiff poultry
workers. In the operative Second Amended Complaint
(“SAC”), Levine asserted that, in issuing the Notice, USDA
had violated the HMSA of 1958, abused its discretion, and
6
It did so once more by analyzing the HMSA of 1978 in connection
with a 1996 request that the agency issue humane slaughter regulations
pursuant to the PPIA. It took similar positions in letters authored in 2004
and 2005.
LEVINE v. VILSACK 15451
acted arbitrarily and capriciously in violation of the Adminis-
trative Procedure Act (“APA”). In the SAC’s “Request for
Relief,” Levine sought an order: (1) “declaring USDA’s deci-
sion to exclude chickens, turkeys, and other poultry species
from the protections provided by the Humane Methods of
Slaughter Act of 1958 . . . to be . . . not in accordance with
the HMSA of 1958 and the APA;” (2) “declaring unlawful
and setting aside USDA’s September 28, 2005 Federal Regis-
ter Notice containing the agency’s policy statement . . . that
the Humane Methods of Slaughter Act of 1958 . . . does not
require ‘humane handling and slaughter’ for poultry;” and (3)
“enjoining USDA from excluding chickens, turkeys, and
other poultry species from the protections provided by the
Humane Methods of Slaughter Act of 1958 . . . .”
On September 6, 2006, the district court denied USDA’s
motion to dismiss, concluding that Levine had standing
because the alleged injuries were redressable, and that the
Notice constituted final agency action and thus was subject to
judicial review. On February 28, 2008, in connection with
cross-motions for summary judgment, the district court ruled
in USDA’s favor on the merits pursuant to an analysis under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). The district court entered a Judgment dis-
missing the action that same day.
II. STANDARD OF REVIEW
De novo review applies to both the district court’s grant of
summary judgment and to questions of statutory interpretation
under Chevron. See J & G Sales Ltd. v. Truscott, 473 F.3d
1043, 1047 (9th Cir.), cert. denied sub nom., J & G Sales Ltd.
v. Sullivan, 552 U.S. 887 (2007). The district court’s determi-
nation on the issue of standing is also reviewed de novo,
including with respect to its redressability determination. See
Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009); North-
west Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d
668, 678 (9th Cir. 2007). Where standing is raised in connec-
15452 LEVINE v. VILSACK
tion with a motion to dismiss, the court is to “ ‘accept as true
all material allegations of the complaint, and . . . construe the
complaint in favor of the complaining party.’ ” Thomas, 572
F.3d at 760 (quoting Warth v. Seldin, 422 U.S. 490, 501
(1975)).
This court may affirm on any ground supported by the
record. See Pritikin v. Dep’t of Energy, 254 F.3d 791, 796
(9th Cir. 2001), cert. denied, 534 U.S. 1133 (2002).
III. ANALYSIS
On appeal, before addressing the substantive merits of the
case, USDA resurrected its contention that Levine lacked
Article III standing. USDA did not file a cross-appeal, but it
need not have done so in order to argue that issue here. See
Biggs v. Best, Best & Krieger, 189 F.3d 989, 998 n.7 (1999)
(“ ‘It is . . . our obligation to be sure that standing exists
. . . .’ ”) (quoting San Francisco Drydock, Inc. v. Dalton, 131
F.3d 776, 778 (9th Cir. 1997)).
[1] Levine had the burden below of establishing the three
elements of Article III standing: (1) that plaintiffs had suf-
fered an injury in fact that was concrete and particularized,
and actual or imminent; (2) that the injury is fairly traceable
to the challenged conduct; and (3) that the injury was likely
to be redressed by a favorable court decision. See Salmon
Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220,
1225 (9th Cir. 2008); see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992) (“Defenders of Wildlife“). On
appeal, USDA challenges only the district court’s redressa-
bility determination. Here, a key to assessing the redressa-
bility issue is the fact that the only enforcement mechanism
contained within the HMSA of 1958 was repealed in 1978.
[2] The district court relied upon the rule that a plaintiff
“must show only that a favorable decision is likely to redress
his injury, not that a favorable decision will inevitably redress
LEVINE v. VILSACK 15453
his injury,” citing Beno v. Shalala, 30 F.3d 1057, 1065 (9th
Cir. 1994) (emphasis in Beno). Levine also stresses that point
on appeal. The difficulty with the district court’s standing
analysis, however, is that the “likely” standard is altered
somewhat when third parties not before the court must change
their behavior in order for any injury suffered to be redressed.
As the Supreme Court put it in Defenders of Wildlife:
When the suit is one challenging the legality of
government action or inaction, the nature and extent
of facts that must be averred (at the summary judg-
ment stage) or proved (at the trial stage) in order to
establish standing depends considerably upon
whether the plaintiff is himself an object of the
action (or forgone action) at issue. If he is, there is
ordinarily little question that the action or inaction
has caused him injury, and that a judgment prevent-
ing or requiring the action will redress it. When,
however, as in this case, a plaintiff’s asserted injury
arises from the government’s allegedly unlawful reg-
ulation (or lack of regulation) of someone else, much
more is needed. In that circumstance, causation and
redressability ordinarily hinge on the response of the
regulated (or regulable) third party to the govern-
ment action or inaction — and perhaps on the
response of others as well. The existence of one or
more of the essential elements of standing “depends
on the unfettered choices made by independent
actors not before the courts and whose exercise of
broad and legitimate discretion the courts cannot
presume either to control or to predict,” . . . and it
becomes the burden of the plaintiff to adduce facts
showing that those choices have been or will be
made in such manner as to produce causation and
permit redressability of injury. Thus, when the plain-
tiff is not himself the object of the government
action or inaction he challenges, standing is not pre-
15454 LEVINE v. VILSACK
cluded, but it is ordinarily “substantially more diffi-
cult” to establish.
504 U.S. at 561-62 (internal citations omitted); see also Simon
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-43
(1976); Massachusetts v. EPA, 549 U.S. 497, 543 (2007)
(Roberts, J., dissenting); Utah v. Evans, 536 U.S. 452, 511
(2002) (Scalia, J., dissenting). Of course, as the Supreme
Court later made clear (if to that point it had been unclear),
even if “it does not suffice if the injury complained of is ‘the
result [of] the independent action of some third party not
before the court,’ that does not exclude injury produced by
determinative or coercive effect upon the action of someone
else.” Bennett v. Spear, 520 U.S. 154, 169 (1997) (emphasis
and internal citations omitted).
Though it obviously recognized that the redressability ele-
ment herein relied upon the actions of third parties not before
the court (i.e., poultry processors and slaughterhouses) and
that the HMSA of 1958 presently contains no statutory
enforcement mechanisms, the district court nevertheless con-
cluded that redressability was likely because of the availabil-
ity of an alternative method of enforcement. The district court
believed that the Secretary could — and likely would —
enforce humane slaughter requirements through the FMIA
and that legislation’s grant of authority to the Secretary to
include whatever additional “species of livestock” he or she
“consider[ed] appropriate” within the scope of the humane
slaughter requirements set forth in the FMIA and the HMSA
of 1958. See Pub. L. 109-96 § 798; see also 21 U.S.C.
§ 601(w). Of course, in Defenders of Wildlife, the Supreme
Court rejected speculation, even when it took the form of
“confiden[t]” speculation. Defenders of Wildlife, 504 U.S. at
569-70.
[3] While it is true that the processors/slaughterhouses
would be the only technical third parties necessary for redres-
sability here, the Secretary’s actions under the FMIA are
LEVINE v. VILSACK 15455
equally outside the scope of this lawsuit (which seeks declara-
tory/injunctive relief solely as to the HMSA of 1958), and
therefore subject to some significant measure of speculation.
In this regard, the district court and the parties appear to have
overlooked Fernandez v. Brock, 840 F.2d 622 (9th Cir. 1988),
a case which admittedly preceded Defenders of Wildlife by
four years. Though dealing with a quite different subject mat-
ter, that case is instructive, and arguably determinative, here.
In Fernandez, this court concluded that it was “speculative
at best whether a court order compelling the Secretary [of
Treasury and other federal officials and agencies] to promul-
gate regulations” under ERISA would enlarge farmworkers’
pension benefits and thus give the plaintiffs standing. Id. at
627. It reached that conclusion because of the multiple
unknown questions such a course would raise: 1) whether the
regulations would have eligibility thresholds meaningfully
lower than the present standard; 2) whether the employer
would continue to maintain a pension plan at all under such
new regulations where he was not required to do so and no
one could predict what the regulations might require; and 3)
whether the farmworkers would meet whatever eligibility
standard the employer would set in connection with such
unknown regulations. See id. at 627-28; see also Allen v.
Wright, 468 U.S. 737, 753 n.19 (1984); Salmon Spawning,
545 F.3d at 1228-29. This court later summarized Fernandez
in a way that makes its application to the instant situation all
but undeniable:
In Fernandez, plaintiffs were migrant workers
seeking a court order to force the Secretary of Labor
to establish regulations that might affect their eligi-
bility for retirement benefits. However, because any
increase in the benefits for which plaintiffs would be
eligible was entirely contingent upon the actual con-
tent of the regulations the Secretary would ultimately
establish, as well as the actions of plaintiffs’ private
employer, the court could not say with any degree of
15456 LEVINE v. VILSACK
confidence that granting the plaintiffs their requested
relief would benefit them.
Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981, 985 (9th
Cir. 1994).
[4] Because of the repeal of the only enforcement provision
that had ever been present in the HMSA of 1958, a not-
entirely-dissimilar set of speculative steps would have to
occur here. First, the Secretary would have to make the inde-
pendent policy determination (taking into consideration the
ruling in this case or not) that he should deem chickens, tur-
keys and birds to be “amenable species” because, without the
threat of enforcement afforded by the FMIA, it is exceedingly
difficult to say that any change Levine wants from the proces-
sors/slaughterhouses would be “likely.” However, a decision
from this court (that the phrase “other livestock” in the
HMSA of 1958 includes poultry) would not mandate or other-
wise compel the Secretary to conclude that poultry should be
added as an “amenable species” in the FMIA, 21 U.S.C.
§ 601(w).7 Second, even if the Secretary were to add poultry
as an “amenable species” to the FMIA, the Secretary would
then have to issue regulations of uncertain content (if not
uncertain nature).8 Third, the chicken, turkey and domestic
7
The need to invoke the application of an entirely separate statute and
its enforcement provision is what principally distinguishes this case, as it
relates to the question of “likely” enforcement, from Artichoke Joe’s v.
Norton, 216 F. Supp.2d 1084, 1107-09 (E.D. Cal. 2002), aff’d, 353 F.3d
712, 719 n.9 (9th Cir. 2003) (indicating that the federal government’s “en-
forcement responsibilities” would have remained applicable even if a
plaintiff victory would have precluded state enforcement), and the deci-
sions addressed therein. This case is also plainly distinguishable from Fed-
eral Election Commission v. Akins, 524 U.S. 11, 25 (1998), where the only
question was whether the agency would exercise discretion to enforce
where it unmistakably had the power to enforce, and Graham v. Fed.
Emergency Mgmt Agency, 149 F.3d 997, 1003 (9th Cir. 1998), where the
non-party was obligated under a mandatory and binding agreement to dis-
burse any funds to the plaintiffs should they prevail in the action.
8
Because the substance of the regulations the Secretary would or would
not eventually issue in response to a victory for Levine in this litigation
LEVINE v. VILSACK 15457
bird processors would then have to abide by those regula-
tions, whatever they might be. Even if, in line with Artichoke
Joe’s v. Norton, 216 F. Supp. 2d 1084, 1108 (E.D. Cal. 2002),
aff’d, 353 F.3d 712, 719 n.9 (9th Cir. 2003), this court could
be confident that the processors would comply, that assump-
tion is in truth itself little more than guess-work given the
speculation inherent in 1) concluding that the Secretary would
apply the “amenable species” designation and 2) presuming
the terms of any follow-on regulations.
is entirely unknown, it cannot even be determined “likely” that such regu-
lations would resolve the particular harms — physical, economic or aes-
thetic — that the various plaintiffs have alleged in the SAC.
For example, Levine pled that redressability was satisfied because, if
she prevailed, “the number of chickens and other birds slaughtered inhu-
manely will be reduced, thus decreasing her risk of contracting food-borne
illness . . . .” However, since the 1957 enactment of the PPIA, the USDA
has had the authority to inspect and otherwise regulate the slaughterhouse
facilities for poultry products in order to reduce the risk of poisonous or
deleterious substances in or on poultry sold for consumption. See 21
U.S.C. §§ 451-71. Pursuant to the PPIA and the FMIA, the USDA has
already issued regulations (see, e.g., 9 C.F.R. part 416) governing how an
“establishment must be operated and maintained in a manner sufficient to
prevent the creation of insanitary conditions and to ensure that product is
not adulterated.” 9 C.F.R. § 416.1. Moreover, the USDA has also already
promulgated regulations (see 9 C.F.R. part 417) which require meat pro-
ducing establishments to have conducted “a hazard analysis to determine
the food safety hazards reasonably likely to occur [at various points] in the
production process and identify the preventive measures the establishment
can apply to control those hazards.” 9 C.F.R. § 417.2(a)(1). Among the
types of food safety issues to be considered are: “natural toxins,” “micro-
biological contamination,” “zoonotic diseases,” and “decomposition.” Id.at § 417.2(a)(3). One of the “processing categories” which is to be ana-
lyzed for food safety risks (and concomitant preventative measures) is the
slaughter stage. Id. at § 417.2(b)(1). Given the current existing regulations
covering the subject of the prevention of food-borne illnesses as to poul-
try, it is entirely speculative as to what (if any) new regulations would be
promulgated in that area as a result of the addition of poultry as an “ame-
nable species.”
15458 LEVINE v. VILSACK
[5] In other words, using Bennett’s terminology, the “deter-
minative or coercive effect” would not run from this court’s
ruling on the meaning of “livestock” in the HMSA of 1958,
but from the Secretary’s independent decision to accord
chickens, turkeys and other domestic birds “amenable spe-
cies” status under the 2005 amendments to the FMIA. How-
ever, that decision is not at issue in this lawsuit. Further, that
decision may be subject to a number of political and legal fac-
tors quite independent from this court’s determination with
respect to the meaning of the HMSA of 1958,9 including
whether the Secretary could take any such action in a way that
would not be inconsistent with provisions of the PPIA. It is
therefore simply impossible for the court to predict that such
action “will be made” or is even “likely” within the analysis
established as appropriate by Defenders of Wildlife. As such,
Levine’s injuries are not redressable and that claim fatally
suffers from a lack of Article III standing, a conclusion which
this court has reached in other similar circumstances. See,
e.g., Renee v. Duncan, 573 F.3d 903, 909-12 (9th Cir. 2009);
Rubin v. City of Santa Monica, 308 F.3d 1008, 1019-20 (9th
Cir. 2002), cert. denied, 540 U.S. 875 (2003); Pritikin, 254
F.3d at 799-800; Fernandez, 840 F.2d at 627-28.
Levine argues that redressability is no more speculative
here than in Tozzi v. U.S. Dep’t of Health and Human Ser-
vices, 271 F.3d 301 (D.C. Cir. 2001), where the D.C. Circuit
9
Though the remarks came at a time when the district court had already
decided the standing issue, Levine’s counsel effectively acknowledged
this uncertainty at the summary judgment hearing when asked why Con-
gress had not done something “clear and definitive”:
Certainly, I know my clients have talked to Congress about clari-
fying what the language actually says. But why Congress hasn’t
acted, I’m not quite sure. We know it’s not because people aren’t
interested. The Notice says that 13,000 people wrote in about this
particular issue. People really care about this issue.
Just as Levine’s counsel could not pinpoint the reason behind Congressio-
nal inaction, there are many factors the Secretary would have to take into
consideration in determining whether to exercise his authority pursuant to
section 601(w).
LEVINE v. VILSACK 15459
found no problem with Article III standing. In Tozzi, the Sec-
retary of Health and Human Services, acting pursuant to a
requirement of the Public Health Service Act, upgraded
dioxin from a substance that was “reasonably anticipated to
be” carcinogenic in humans to a “known” human carcinogen.
See id. at 303. “A manufacturer of products that release dioxin
when incinerated, together with others alleged affected by the
upgrade,” filed suit. See id. The D.C. Circuit noted that,
although the listing of dioxin as a “known” human carcinogen
did not, by itself, lead to regulation of the substance by the
Department of Health and Human Services, a listing, or in
some instances, an upgrade, might trigger obligations under
other agency regulations and state regulations. See id. at 304.
In that case, the D.C. Circuit concluded that were it to set
aside the Secretary of Health and Human Service’s upgrade
decision, there would be no other determination by the United
States government on record pointing to dioxin as a “known”
human carcinogen, state and local governments would be less
likely to regulate it, and healthcare companies would in turn
be less likely to stop using plastic containing it. See id. at 309-
10. All of this would have the effect of redressing “at least
some” of the economic injury suffered by a manufacturer of
disposable plastic connectors used during open heart surgery.
See id. at 307, 310.
The Tozzi court’s conclusion — that “at least some” of the
plaintiffs’ economic injury would be redressable — is seem-
ingly unassailable, even if all of the constituent parts of its
reasoning are not. For instance, it was not at all speculative
for the D.C. Circuit to conclude that an order setting aside the
Secretary’s listing of dioxin as a “known” carcinogen would
have the “likely” effects of 1) precluding “dioxin activists”
from “point[ing] to an authoritative determination by the
United States government that dioxin is ‘known’ to cause can-
cer in humans” and 2) permitting the manufacturer to point to
that same authoritative list as no longer listing dioxin as a
“known” human carcinogen. See id. at 309-10. This, seem-
ingly by itself, would have provided redressability for “at
15460 LEVINE v. VILSACK
least some” of the manufacturer’s injury. This court could
therefore agree with the Tozzi holding even if it disagreed
with its reasoning with respect to the likely regulatory deci-
sions of state and local governments. See id. at 310. On that
latter point, Tozzi would appear to be inconsistent with this
court’s opinions in Fernandez, Renee and Pritikin.
Levine also argues that at least contractors selling poultry
to the federal government would have to comply with regula-
tions passed under the HMSA of 1958 notwithstanding the
absence of an enforcement provision in that statute, because
of 48 C.F.R. § 52.212-4(q). That Federal Acquisition Regula-
tion provides that any such contractor “shall comply with all
applicable Federal, State and local laws, executive orders,
rules and regulations applicable to its performance under this
contract.” Id. Yet, Levine has not demonstrated that any
humane slaughter regulation would be “applicable to [a con-
tractor’s] performance“ under a contract which merely calls
for the provision or delivery of poultry products to the Gov-
ernment. Levine also has not pointed to or alleged the exis-
tence of any poultry processor-government contract which
actually contains or incorporates section 52.212-4(q) as a term
(although they seemingly could have easily done so).10 Even
10
In addition, it is not entirely clear from the record that Levine even
raised this particular argument below. Cf. Joint Stock Soc’y v. UDV N.
Am., Inc., 266 F.3d 164, 178 (3d Cir. 2001) (refusing to consider plain-
tiffs’ Article III standing argument which was not raised until reply brief);
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487 n.4 (9th Cir.
1995) (“It is not at all clear that [the plaintiff] raised the issue of third-
party standing before the district court. If it did not, it has waived the argu-
ment on appeal.”); Bd. of Natural Res. v. Brown, 992 F.2d 937, 945-46
(9th Cir. 1993) (“Unlike the requirement that a litigant demonstrate an
injury in fact, the rule against third-party standing is not a jurisdictional
limitation on our review, but a prudential one.”). But see Appellants’
Excerpts of Record at 476; Thompson v. County of Franklin, 15 F.3d 245,
248-49 (2d Cir. 1994) (concluding that appellate court is required to con-
sider all possible arguments supporting a plaintiff’s standing, whether or
not plaintiff has made them); Sherman v. SEC (In re Sherman), 491 F.3d
LEVINE v. VILSACK 15461
if all of those problems were taken care of, however, Levine
still runs into the difficulty of not being able to demonstrate
that it is likely that the content of any regulations USDA
might issue and which might, therefore, be in some sense
applicable through 48 C.F.R. § 52.212-4(q), would actually
redress the particular harms they claim.
[6] Finally, although the district court considered the
redressability issue at the motion to dismiss stage, a court’s
obligation to take a plaintiff at its word at that stage in con-
nection with Article III standing issues is primarily directed
at the injury in fact and causation issues, not redressability.
See Defenders of Wildlife, 504 U.S. at 561 (“At the pleading
stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss
we ‘presume that general allegations embrace those specific
facts that are necessary to support the claim.’ ”) (emphasis
added) (quoting Lujan v. National Wildlife Federation, 497
U.S. 871, 889 (1990)); see also Warth v. Seldin, 422 U.S. 490,
501 (1975) (ruling, without specifying whether it was consid-
ering redressability, that “[f]or purposes of ruling on a motion
to dismiss for want of standing, both the trial and reviewing
courts must accept as true all material allegations of the com-
plaint, and must construe the complaint in favor of the com-
plaining party”).11 But see Am. Fed’n of Gov’t. Employees
948, 957 (9th Cir. 2007) (reciting — in the context of a challenge to stand-
ing — the familiar rule that the issue of Article III standing must be con-
sidered on appeal regardless of whether it was raised below); Smith v.
Arthur Andersen LLP, 421 F.3d 989, 999 (9th Cir. 2005) (permitting par-
ties to “bolster” their defense to opposing party’s challenge to standing by
way of particular standing argument not raised below).
11
Warth appears to have predated the Supreme Court’s specification of
redressability as a separate standing element (though, as part of the Article
III standing requirement, it was assuredly always there). See Defenders of
Wildlife, 504 U.S. at 561 (citing Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 38 (1976), for the redressability requirement). The
Warth Court, therefore, arguably did not have that element in mind when
addressing a court’s role at the motion to dismiss stage (though Simon, the
precursor to Defenders of Wildlife on this point, itself drew from Warth
for the redressability requirement).
15462 LEVINE v. VILSACK
Local 1 v. Stone, 502 F.3d 1027, 1032-33 (9th Cir. 2007);
Bernhardt v. County of Los Angeles, 279 F.3d 862, 870 (9th
Cir. 2002). Even accepting the allegations in the SAC as true,
Levine did not plead any facts demonstrating that the Secre-
tary of Agriculture would act to include chickens, turkeys and
other birds as “amenable species” under the FMIA. See Fer-
nandez, 840 F.2d at 625-26 (reviewing the standing issue by
accepting as true all material allegations of the complaint not-
withstanding that appeal was from summary judgment ruling).
Absent such factual allegations, any pleading directed at the
likely actions of third parties or of parties under separate and
independent statutory obligations would almost necessarily be
conclusory and speculative.
IV. CONCLUSION
[7] Because Levine’s alleged injuries are not redressable by
way of this lawsuit, there is a lack of standing to proceed with
this action. Consequently, the decision of the district court
granting the USDA’s motion for summary judgment is
vacated and the case is remanded with instructions to dismiss.12
VACATED AND REMANDED.
12
Because we decide this case on a threshold lack of standing ground,
we do not reach the other substantive issues raised on this appeal. See Fox
v. Smoker (In re Noblit), 72 F.3d 757, 759 (9th Cir. 1995).