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Humane Society of United States v. Perdue

United States Court of Appeals, District of Columbia Circuit

August 23, 2019

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

          Argued May 9, 2019

          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.

          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

          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. § 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.

         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 ...


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