United States Court of Appeals, District of Columbia Circuit
Humane Society of the United States, et al., Appellees/Cross-Appellants
Sonny Perdue, Secretary of the United States Department of Agriculture, Appellant/Cross-Appellee National Pork Producers Council, Appellant/Cross-Appellee
May 9, 2019
Appeals from the United States District Court for the
District of Columbia (No. 1:12-cv-01582)
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.
Katsas, Circuit Judge.
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.
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).
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.
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.
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.
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 ...