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Home    |   Currents   |   Levine v. Vilsack: When “Likely” Actually Means “Definitely”

Levine v. Vilsack: When “Likely” Actually Means “Definitely”

Mar 08, 2010

Bruce Wagman & Lisa McCurdy

Animal LawHealthPractitioner Tips

Bruce Wagman & Lisa McCurdy*

Sometimes procedural rulings allow courts to avoid important
decisions that would otherwise make social and ethical declarations about the
duality of American values with respect to animals. Stark evidence of that
comes with the recent Ninth Circuit opinion in Levine v. Vilsack.[1]
The Ninth Circuit ruled only that plaintiffs had no standing to sue because
they did not meet the “redressability” requirement of standing under Article
III, Section 2 of the U.S. Constitution.[2] With
this holding, the opinion may signal a new hurdle for plaintiffs to clear. The
opinion also leaves in place a federal policy that has mandated the humane
treatment of animals
before they are slaughtered for food for over fifty years,
but applies it to only one out of every ten animals who reach the
slaughterhouse. The opinion thus delivers two unfortunate messages. As a
nation, we care about animals—but not 90 percent of them. And if you are
working to protect animals in the courts, that work could become more

In 1958, Congress passed the Humane
Methods of Slaughter Act (HMSA) that declares it is
“the policy of the United States that the slaughtering of livestock and the
handling of livestock in connection with slaughter shall be carried out only by
humane methods.”[3]
This policy extends to “cattle, calves, horses, mules, sheep, swine, and other
.”[4] The Levine
plaintiffs challenged a determination by the United States Department of Agriculture
(USDA) that the term “livestock” in the HMSA does not include chickens,
turkeys, and other birds, which the USDA classifies as “poultry,” not
livestock. This construction guts the statute’s reach, because the vast
majority of animals killed for food are birds—roughly twenty-five million are
slaughtered every day in America, for a total of over nine billion each

The Levine case was originally filed in 2005 by a
group of animal protection advocates, consumers, and poultry workers. The plaintiffs
alleged that the USDA exceeded its authority by issuing an interpretation of
the HMSA that violated the statute. The USDA stated that the HMSA does not
cover “the handling and slaughter of poultry.”[6] The
plaintiffs sought a judicial pronouncement that the slaughter of birds for food
was covered by the HMSA, which mandates humane slaughter methods for certain
specified animals and “other livestock.”


In the published district court opinion granting summary
judgment and dismissing the action, Judge Marilyn Hall Patel held that the
Congressional intent behind the word “livestock” was clear and consistent with
the interpretation adopted by the USDA, namely, that “there is no specific
federal humane handling and slaughter statute for poultry.”[7]
The Ninth Circuit vacated the district court opinion not on the merits, but
solely because it found plaintiffs never had standing to bring the action in
the first place.[8] The
case was remanded for dismissal.

By focusing on the plaintiffs’ standing (which Judge Patel had
found viable), the Ninth Circuit thus avoided the central question underlying
the case and exposed the problem with the very notion of “humane slaughter”
that does not cover nine out of ten animals killed for food. Some sectors may
criticize the methods of slaughter and whether there is anything humane about
the transport, forced march, and ultimate death of animals who become our food.
The fact that 90 percent of the animals killed for us are actually excluded
from the HMSA’s coverage suggests that humane slaughter is sacrificed where it
is inconvenient—that is, with all birds. It certainly makes federal oversight and
industry practices involving most slaughter much easier when they are exempted
from the coverage of a law like the HMSA.

The Levine court focused on redressability, the
least-often considered of the three constitutional standing requirements, which
also include injury in fact and causation. Plaintiffs alleged aesthetic injury
as well as an increased risk of illness from consumption of inhumanely
slaughtered animals. The Ninth Circuit held those injuries were not “likely” to
be redressed by a favorable decision.[9] In so
reasoning, the court adopted a very narrow interpretation of what a “likely”
outcome really is, one that further limits the ability to challenge government
conduct. In terms of the current case, the ruling means that “humane slaughter”
does not even get lip service for most of the animals killed for our food.

The Laws and Regulations at Issue

The HMSA directs the Secretary of Agriculture to designate
humane methods of slaughter for each species of livestock, but defines neither
“livestock” nor “other livestock.”[10]
According to the Levine opinion, the legislative history provided no
guidance regarding whether “other livestock” should include birds.

One complication for the Levine plaintiffs was that
after adopting the HMSA, Congress subsequently enacted and amended a number of
laws that interrelated with the HMSA and its protections. In 1978, without
repealing the HMSA, Congress introduced new legislation also titled Humane
Methods of Slaughter Act (HMSA of 1978).[11] That
law repealed the only enforcement provision contained in the 1958 HMSA, which
prohibited federal government purchases of inhumanely slaughtered livestock. Simultaneously,
Congress incorporated humane slaughter requirements for “cattle, sheep, swine,
goats, horses, mules, and other equines” into the Federal Meat Inspection Act
(FMIA).[12] The USDA
has enforcement authority for violations of the FMIA.[13]

The USDA issued regulations under the 1978 HMSA enactments covering
only those animals listed in the FMIA, even though the original, still-valid HMSA
kept its broader reference to “livestock” and “other livestock.”[14]
In 2005, Congress deleted the FMIA’s specific list of protected animals and
substituted the term “amenable species,” which included FMIA’s previous list
and “any additional species of livestock that the Secretary considers
appropriate.”[15] The
USDA thus had the discretion to include birds in the HMSA’s scope, if it wished
to follow the unchanged national policy of utilizing “humane methods of

The Ninth Circuit Defines “Likely” to Mean Something Akin to “Certain”

The Ninth Circuit held that a favorable decision for the Levine
plaintiffs would not necessarily remedy their stated injuries because further
independent action by the Secretary would be necessary—action over which the
court had no authority. Courts have interpreted Article III to require, in
order to establish standing, that (1) plaintiffs have suffered an injury in
fact that is concrete and particularized, and actual or imminent; (2) the
injury is fairly traceable to the challenged conduct; and (3) the injury was
likely to be redressed by a favorable court decision.[16]
According to the court, plaintiffs did not meet the final requirement.

The court cited the statutory entanglement described
above in support of its redressability holding, asserting that one of the
plaintiffs’ problems was that they sought a decision that the “other livestock”
language of the 1958 HMSA—not the phrase “amenable species” under the
FMIA—included birds.[17] The
appellate panel found that even if it ruled that “other livestock” under the
1958 law included birds, the USDA would still have unfettered discretion to
determine that the term “amenable species” did not include them within the
meaning of the FMIA.[18] As the
court saw it, the relief that the plaintiffs sought would not directly bind the
USDA to issue regulations under the FMIA, and the FMIA is the only statute
offering an enforcement mechanism for humane slaughter requirements.[19]

Because the enforcement provisions are under the FMIA, the
court found the relief was “outside of the scope of [the] lawsuit.”[20]
The court also found redressability unlikely because the Secretary would then
need to issue regulations and those regulations would have to be followed by
slaughterers and processors.[21] As a
practical matter, the Ninth Circuit held that plaintiffs’ requested relief—a
declaration that nine billion birds each year were entitled to a modicum of
humane treatment on their way to the table—would require the USDA to act
consistently with the notion that birds should be treated humanely.[22]
It would compel the USDA to act in compliance with the federal policy, stated
fifty-two years ago, that animals deserve to be treated kindly on their way to
death. This was too far a stretch for the Ninth Circuit.

Photo courtesy of Farm Sanctuary.

The Ninth Circuit partially relied in its opinion on an
extra hurdle thrown in the way of environmental and animal-protection
plaintiffs by Justice Scalia’s opinion in Lujan v. Defenders of
.[23] That
case effectively raised the standing bar where “third
parties not before the court must change their behavior in order for any injury
suffered to be redressed.”[24]
In reality, that is often the case; however, neither Lujan nor Levine
(nor any other case) provide clarity on just what or how much more plaintiffs
must allege or prove when third parties are involved. The doctrine is thus open
for courts to impose their own interpretation of this crucial issue on

The court’s decision rests on an interpretation of what
“likely” means under the judicial precedent interpreting the “case or
controversy” language of Article III. Tightening the reins on federal standing,
the Ninth Circuit now defines a “likely” outcome as one that is mandated and a
virtual certainty and that cannot be circumvented by a violation of law.[25]
The court crafted this new definition by relying on language and sentiments from
Lujan and Fernandez v. Brock.[26] The
Ninth Circuit determined it was mere speculation that the USDA would follow the
federal policy of humane slaughter, and found no redressability because “the
Supreme Court rejected speculation [about the likelihood of a remedy], even
when it took the form of ‘confiden[t]’ speculation.”[27]
But Lujan and Fernandez involved neither an agency presumably
operating in accord with a half-century of Congressional policy, nor of course
the slaughter of billions of animals.

Redressability—the Least-Defined Standing Requirement

The Ninth Circuit’s decision in Levine is complicated
by the interplay among the FMIA, the first HMSA, and the HMSA of 1978. But the
opinion glosses over a continuing question about the true meaning of the redressability
requirement and creates a potentially rocky road for plaintiffs in future

In most cases, including certain animal protection cases,
redressability folds easily into causation for Article III standing purposes. In
a hypothetical example, assume the federal government determines that certain
breeds of dog must be killed, and your companion animal is a member of that
breed. You sue to enjoin the operation of the statute. For purposes of federal
standing, your potential injury in fact is clear, the federal action is
certainly the cause of your injury, and if the action is halted your injury
would be redressed. In that case the remedy—saving your dog—is concrete and
identifiable. In many environmental and animal protection cases, however,
plaintiffs claim “aesthetic injury” and allege the government’s wrongful
conduct harms them in terms of their ability to appreciate an identified
resource, such as the ability to view animals, or to see them treated humanely,
as opposed to inhumanely.[28] When
aesthetic injury enters the picture, redressability becomes a harder concept,
and one that demands a flexibility that not all courts embrace.

Animal Legal Defense Fund v. Glickman, perhaps the
leading case on standing for animal-protection plaintiffs, provides a good
real-life example of this dilemma and the active dispute (judicial as well as
academic) over redressability.[29] The Glickman
plaintiffs were distressed at the treatment of animals in a roadside zoo and
alleged that the USDA’s failure to adopt appropriate regulations under the
Animal Welfare Act permitted dealers and exhibitors like the zoo to keep
animals in inhumane conditions.[30] The
individual plaintiffs alleged aesthetic injury based on their experiences
viewing animals that they believed were being treated inhumanely.[31]
The majority held that the plaintiffs had standing.[32]
With respect to redressability, the court rejected the notion that the
redressability requirement was not met because the agency might not enact
regulations that met the plaintiffs’ subjective standards for humane treatment.[33]
The Glickman court did not require certainty that the plaintiffs’
aesthetic injury would be eliminated—only that there would be a “likely”
potential for redress.[34]

The virulent dissent by Judge David Sentelle in Glickman demonstrates
the wild card that is redressability.[35] The
dissent asserted that questions of humane treatment were virtually immune from
judicial review. “[W]hen . . . a plaintiff asserts that a regulation has
injured an unquantifiable interest (the plaintiff’s own taste), it seems to me
nearly impossible to redress such an injury by a general court order . . . .”[36]
According to Judge Sentelle, redressability cannot be satisfied in virtually
any animal welfare case, because the courts can never be sure if a plaintiff
with aesthetic injuries would be happy.[37]

The Glickman dissent and the Levine opinion
threaten to turn the redressability prong into a bar to any animal-protection
plaintiff who cannot prove that the relief she seeks will definitely come to pass.
But prior jurisprudence and practical application of the standing doctrine
suggest that this cannot and should not be the standard for redressability. The
question for courts should simply be: if the plaintiffs prevail, is it likely
that their injuries will be redressed? And in terms of viewing those injuries,
the focus should not be solely on actual subjective injury––to personal taste,
in aesthetic injury cases. The redressability question should also focus on the
legal injury that is the basis for the causes of action in the case. For
example, in Glickman the injury would be the failure to enact
regulations required by the intent and spirit of the Animal Welfare Act and the
remedy would be their enactment. In Levine, the injury would be the
failure to provide for humane slaughter for birds as required by the HSMA, and
the remedy would be the correction of that failure.

Farm Sanctuary_turkey production
Photo courtesy of Farm Sanctuary.

Levine’s Redressability—the Judicial Equivalent of the Old West

In Levine, the court decided that even if it found
that federal law and longstanding policy require that all animals be humanely
slaughtered, the USDA was likely to ignore that ruling and refuse to apply FMIA
inspection requirements to all animals protected from inhumane slaughter by the
HMSA. Levine makes the initial, faulty assumption that the USDA would
ignore both the legislative intent behind the HMSA and any judicial holding
that the HMSA does apply to birds who become food. Thus the court includes in
its redressability analysis the possibility of blatant disregard of the law by
the agency tasked with carrying out the law.

If that potential for lawlessness is sufficient to negate
the redressability prong of Article III standing, virtually all injuries are
unredressable. If the HMSA requires that birds be slaughtered humanely, and the
FMIA requires inspections to ensure that “amenable” species are slaughtered
humanely, is it not likely that the USDA would conclude that bird slaughter
methods be inspected for compliance with federal law? It is the court’s own
faulty reasoning, not the statutory scheme nor the language relating to humane
slaughter laws, that renders redressability “unlikely” in Levine.


Bruce Wagman is a partner in the San Francisco office
of Schiff Hardin. His practice focuses on animal law litigation, consultation,
and education. He has litigated multiple state and federal cases involving a
wide range of animal law issues, including animal hoarding, cruelty,
entertainment, biomedical research, farm animals, animal injury, attacks,
ownership, veterinary malpractice, and pet custody. He is the author of the
first casebook used in law schools on the subject—Animal Law: Cases and
— now in its fourth edition. He is the Chief Outside Litigation
Counsel of the Animal Legal Defense Fund and teaches at Berkeley Law and other
law schools.
Ms. McCurdy, an associate at Schiff Hardin, practices in
the areas of intellectual property, antitrust and trade litigation. She also
works in animal protection law, where she litigates cases, works to improve
legislation, and educates the community in an effort to improve the status and
treatment of animals.

[1] Levine
v. Vilsack, 587 F.3d 986 (9th Cir. 2009).

[2] Id.
at 988, 991–97.

[3] 7 U.S.C. § 1901 (2006).

[4] Id.
§ 1902.

[5] U.S. Dep’t of Agric., Nat’l Agric. Statistics Serv., Poultry-Production and Value: Summary of 2001 (2002).

[6] Treatment
of Live Poultry before Slaughter, 70 Fed. Reg. 56,624, 56,624–25 (Dep’t of
Agric. Sept. 28, 2005).

[7] Levine
v. Conner, 540 F. Supp. 2d 1113, 1114 (N.D. Cal. 2008) (citing Treatment of
Live Poultry before Slaughter, 70 Fed. Reg. at 56,625).

[8] Levine
v. Vilsack, 587 F.3d 986 (9th Cir. 2009).

[9] Id.
at 994.

[10] 7 U.S.C. §§ 1901–1902 (2006).

[11] See 44 Fed. Reg.
37,954 (June 29, 1979) (to be codified in
7 U.S.C. § 1901).

[12] 21
U.S.C. § 603(a).

[13] 21
U.S.C. §§ 603(b), 604, 676.

[14] Levine,
587 F.3d at 990 (citing 44 Fed. Reg. at 37,954).

[15] 21
U.S.C. § 601(w).

[16] Levine,
587 F.3d at 991–92.

[17] Id.
at 994.

[18] Id.

[19] Id.
at 993–94.

[20] Id.
at 993.

[21] Id.
at 994.

[22] Id.
at 990 (citing Treatment of Live Poultry before Slaughter, 70 Fed. Reg. 56,624,
56,625 (Dep’t of Agric. Sept. 28, 2005)).

[23] Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992).

[24] Levine, 587 F.3d at

[25] Id.
at 993–94.

[26] Fernandez v. Brock, 840 F.2d 622 (9th Cir. 1988).
The Fernandez plaintiffs were migrant farmworkers seeking increased
coverage under federal pension laws. They requested an order requiring federal
agencies to draft regulations that would entitle them to that relief. The court
found that plaintiffs could only get the increased benefits if a number of
third parties and the plaintiffs themselves acted independently. Because the
court had no jurisdiction to mandate the outcome of those independent acts, it
held plaintiffs’ likelihood of getting their remedy was too speculative, and
that therefore they could not satisfy the standing redressability requirement.

[27] Levine,
587 F.3d at 993 (quoting Lujan, 504 U.S. at 569–70).

[28] See,
e.g., Lujan, 504 U.S. at 562–64 (plaintiffs alleged limitation on
coverage of Endangered Species Act would impair their ability to view
crocodiles, elephants and leopards); Animal Legal Defense Fund v.
Glickman, 154 F.3d 426 (D.C. Cir. 1988) (plaintiffs alleged violation of Animal
Welfare Act caused their injuries when they viewed animals suffering in roadside
zoo); Humane Society of the United States v. Hodel, 840 F.2d 45 (D.C. Cir.
1988) (plaintiffs alleged improper allowance of hunting on federal wildlife
refuges would cause them aesthetic injury when they witnessed decreased numbers
of animals, and injured animals).

[29] Glickman,
154 F.3d 426.

[30] Id.
at 428.

[31] Id.

[32] Id.
at 429.

[33] Id.
at 443–44.

[34] Id.
at 454.

[35] Id.
(The majority and dissent could not even agree on the spelling of the
word, with the majority choosing “redressibility” and the dissent “redressability.”).

[36] Id.
(Sentelle, J., dissenting).

[37] Id.
at 453–54.

Copyright 2010 Bruce Wagman and Lisa McCurdy. All rights reserved.

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