No. 02-2769
_______________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________________________
LIVESTOCK MARKETING ASSOCIATION, et al.,
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, et al.,
Defendants-Appellants,
NEBRASKA CATTLEMEN, INC., et al.,
Intervenors-Appellants.
_______________________________
On Appeal from the United States District Court
for the District of South Dakota (Civ. 00-1032)
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INTERVENORS-APPELLANTS’ RESPONSE TO THE
GOVERNMENT’S EMERGENCY MOTION FOR A STAY PENDING APPEAL
________________________________
Pursuant to Fed. R. App. P. 27 and Cir. R. 27, intervenorsappellants Nebraska Cattlemen, Inc., Gary Sharp, and Ralph Jones
submit this response in support of the Government’s Emergency
Motion For (1) A Stay Pending Appeal, Or (2) An Administrative
Stay Pending Consideration Of The Stay Pending Appeal, And (3)
Expedited Briefing and Oral Argument of the District Court’s June
21, 2002 Order striking down as unconstitutional the Beef
Promotion and Research Act (“Beef Act”), 7 U.S.C. §§ 2901 et
seq., and the Beef Order promulgated thereunder.
Nebraska
Cattlemen, Inc. (“NCI”) -- an association representing over 5,000
cattle breeders, ranchers, and feeders, as well as more than 50
county and local cattlemen’s associations -- serves as the
spokesperson for the State of Nebraska’s beef industry.
Gary
Sharp and Ralph Jones are cattle producers who support the beef
checkoffs.
NCI, Sharp, and Jones intervened in the District
Court to defend the Beef Act, and have appealed the District
Court’s order and judgment striking down the Act.
They support
the Government’s request for a stay pending appeal.
1.
Like all federal legislation, the Beef Act enjoys a
“time-honored presumption” of constitutionality.
Reno v. Condon,
528 U.S. 141, 148 (2000).
See, e.g., United States v. Morrison,
529 U.S. 598, 607 (2000).
This Court should be reluctant to
permit a ruling that the Beef Act is unconstitutional to go into
effect based on the opinion of a single judge.
See Bowen v.
Kendrick, 483 U.S. 1304 (1987) (Rehnquist, C.J., in chambers)
(noting general practice of Supreme Court to grant Government
requests to stay declarations by a single district judge that an
Act of Congress is unconstitutional). 1/
The presumption of
constitutionality should also be considered in evaluating the
individual factors used to determine whether a stay should be
1/
Indeed, district courts have applied the presumption of
constitutionality to stay their own orders to give a reviewing
court the opportunity to act. Hechinger v. Metropolitan
Washington Airports Auth., 845 F. Supp. 902, 910 (D.D.C. 1994)
(“It is, of course, difficult for the Court to conclude that
defendants are likely to succeed on appeal. Nonetheless,
recognizing the presumption of constitutionality of congressional
action and that the other factors weigh in defendants’ favor, a
limited stay will be granted.”).
2
granted.
Bowen v. Kendrick, 483 U.S. at 1304 (“ ‘The presumption
of constitutionality which attaches to every Act of Congress is
not merely a factor to be considered in evaluating success on the
merits, but an equity to be considered in favor of applicants in
balancing hardships.’ ”) (quoting Walters v. National Ass’n of
Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J.,
in chambers)).
2.
Every circuit court to have addressed the
constitutionality of the Beef Act under the First Amendment has
concluded that the statute withstands scrutiny.
In United States
v. Frame, 885 F.2d 1119, 1113-37 (3d Cir. 1989), cert. denied,
493 U.S. 1094 (1990), the Third Circuit held that the statute
passes muster under the Central Hudson test for evaluating
commercial speech.
Likewise, in Goetz v. Glickman, 149 F.3d
1131, 1138-39 (10th Cir. 1998), cert. denied, 525 U.S. 1102
(1999), the Tenth Circuit upheld the Act under the Supreme
Court’s decision in Glickman v . Wileman Bros. & Elliott, Inc.,
521 U.S. 457 (1997).
Now the claim is made that the Act violates the First
Amendment under yet another analysis, that set forth in United
States v. United Foods, Inc., 533 U.S. 405 (2001).
While it is
certainly true that there has been some ebb and flow in the
Supreme Court’s jurisprudence in this area, the fact that the Act
has been upheld in face of First Amendment challenge by two
sister circuits should lend additional weight to the presumption
of constitutionality, and lead this Court to stay the ruling
below until it has had the opportunity to conduct its own review.
3
3.
The District Court’s rejection of the argument that the
generic advertising conducted under the Beef Act is government
speech was based on its fundamental misapprehension of the
government speech doctrine.
First, the court seemed to doubt the
existence of the doctrine at all.
See Op. at 13.
The Supreme
Court, however, has explained that the Government may spend
“funds raised * * * for speech and other expression to advocate
and defend its own policies” without implicating concerns under
the First Amendment.
Board of Regents of the Univ. of Wis. Sys.
v. Southworth, 529 U.S. 217, 229 (2000).
See also Legal Servs.
Corp. v. Velazquez, 531 U.S. 533, 541 (“We have said that
viewpoint-based funding decisions can be sustained in instances
in which the government is itself the speaker, or instances * * *
in which the government used private speakers to transmit
specific information pertaining to its own program.”) (citations
and quotation omitted); Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 833 (1995) (“when the government
appropriates public funds to promote a particular policy of its
own it is entitled to say what it wishes”); Keller v. State Bar
of Cal., 496 U.S. 1, 12-13 (1990) (“With countless advocates
outside of the government seeking to influence its policy, it
would be ironic if those charged with making government decisions
were not free to speak for themselves in the process.”).
Indeed, the Court specifically recognized the doctrine in
United Foods, declining in that case to address the argument that
the generic advertising at issue was government speech because it
had not been raised below.
See 533 U.S. at 416-417; see also id.
4
at 428 (Breyer, J., dissenting) (noting that majority’s failure
to address issue left “uncertainty as to how much governmental
involvement will produce a form of immunity under the ‘government
speech’ doctrine”); see also Wileman, 521 U.S. at 483 n.2
(Souter, J., dissenting) (noting that the “Secretary of
Agriculture does not argue that the advertisements at issue
represent so-called ‘government speech’ ”).
In light of these
pronouncements, the District Court’s attempt to draw significance
from the omission of government speech from the “laundry list”
cited in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1399
(2002), see Op. at 14, was particularly misguided.
Second, the court rejected the probative value of Lebron v.
National R.R. Passenger Corp., 513 U.S. 374 (1995), see Op. at
14-16, because Lebron was not a government speech case.
But
Lebron involved the issue whether a particular entity “is part of
the Government for purposes of the First Amendment,” 513 U.S. at
400, and therefore is directly pertinent in considering whether
the extent of governmental involvement in the speech at issue
triggers the government speech doctrine.
Third, the District Court found it significant that the Beef
Board’s activities are not funded by general tax revenues, but
rather by special assessments.
See Op. at 16.
But the focus of
the government speech inquiry is -- and should be -- on the
entity that conveys a particular message and on the process
through which that message has been formulated, not on whether or
to what extent that message might be ascribed to an individual as
a result of some connection between that message and the
5
individual.
See Rosenberger, 515 U.S. at 833 (government may use
“private entities to convey a governmental message,” or “to
transmit specific information pertaining to its own program”).
The constitutional analysis should be no different simply because
Congress decided, rather than using general tax revenues, to
impose what amounts to a modest user fee on those “who most
directly reap the benefits of the program[].”
§ 7401(b)(2).
7 U.S.C.
See Southworth, 529 U.S. at 229 ( “The government,
as a general rule, may support valid programs and policies by
taxes or other exactions binding on protesting parties.”)
(emphasis added).
Fourth, the District Court failed to apprehend the nature of
the Federal Government’s role in the Beef Act’s programs.
The
court concluded that the Government’s role was merely pro forma,
see Op. at 17, but as the Government explains in its motion (pp.
14-16), the record reveals that USDA in fact exercises
substantial oversight and control over the Beef Board’s
activities.
The District Court’s conclusion to the contrary is
based on a single statement purportedly made by a USDA official,
see Op. at 17, for which the Government has been unable to locate
any support in the record.
See Gov’t Mot. at 15.
In fact, that
official made clear that USDA’s role in the beef program is
anything but “ministerial.”
4.
Tr. Tran. 388 (Gov’t Add. I).
The District Court also erred in concluding that this
case is controlled by United Foods, instead of Wileman.
at 12.
See Op.
The critical distinction between Wileman and United Foods
is that in Wileman the promotional activities were viewed by the
6
Supreme Court as being part of a broader regulatory scheme -- and
thus germane to the furtherance of valid economic regulation -whereas in United Foods they were not.
469; United Foods, 533 U.S. at 411-412.
See Wileman, 521 U.S. at
This case is closer to
Wileman in that the Beef Act is part of a comprehensive
regulatory framework governing the marketing of beef, and thus
“the logical concomitant of a valid scheme of economic
regulation.”
United Foods, 533 U.S. at 412.
Numerous statutes
regulate the manner in which beef can be sold.
The Packers and
Stockyards Act, 7 U.S.C. §§ 181 et seq., for instance, gives the
Secretary of Agriculture, in certain instances, the authority to
“prescribe the rate, charge, regulation, or practice” with
respect to buying, selling, or marketing livestock.
§ 212.
See 7 U.S.C.
The Livestock Mandatory Reporting Act, 7 U.S.C. §§ 1635
et seq., seeks to encourage competition in the beef market by
requiring packer processing plants to report detailed price
information to the Secretary at least twice daily and requires
the Secretary to make such information available to the public at
least three times daily.
See 7 U.S.C. § 1635e.
Pursuant to the
Agricultural Marketing Act, 7 U.S.C. §§ 1621 et seq., the
Secretary has established an extensive beef grading program.
7 U.S.C. § 1622(h).
See
The Beef Act -- enacted to secure the
“maintenance and expansion of existing markets for beef and beef
products,” 7 U.S.C. § 2901(a) -- is properly viewed as ancillary
to this pervasive regulatory scheme.
In United Foods, the Supreme Court dealt with a situation in
which “ ‘the mushroom growing business is * * * unregulated,
7
except for the enforcement of a regional mushroom advertising
program.’ ”
533 U.S. at 413 (quoting court of appeals).
The
beef industry is perhaps not as heavily regulated as the
California tree fruit market at issue in Wileman, but it is also
not as free from regulation as the mushroom business at issue in
United Foods.
Given the uncertainty concerning where the
constitutional balance tips along the Wileman/United Foods
spectrum, the Beef Act should not be struck down on the basis of
a single judge’s determination.
5.
The District Court’s order was overbroad.
This Court
should at least amend the injunction to remedy only the harm
complained of by plaintiffs.
The District Court’s unnecessary
nationwide injunction violates the well-settled principle that
“[i]njunctive relief should be no more burdensome to the
defendant than necessary to provide complete relief to the
plaintiffs.”
a.
Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
The order sweeps away statutory provisions that are
undeniably constitutional.
The constitutional violation found by
the District Court pertained solely to the funding of advertising
activities.
See Op. at 12 (“The beef checkoff is
unconstitutional * * * because it requires plaintiffs to pay, in
part, for speech to which the plaintiffs object.”).
In addition
to beef promotion, however, the Beef Act uses checkoff funds for
research and consumer information activities that the District
Court acknowledged were “unobjectionable.”
at 18.
8
7 U.S.C. § 2904; Op.
The statute’s constitutionally innocuous provisions should
be presumed severable and valid unless it is clear that Congress
would have intended otherwise.
Young v. Crystal Evangelical Free
Church, 141 F.3d 854, 859 (8th Cir. 1998).
“A court should
refrain from invalidating more of the statute than is necessary.
Whenever an act of Congress contains unobjectionable provisions
separable from those found to be unconstitutional, it is the duty
of this court to so declare, and to maintain the act in so far as
it is valid.”
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684
(1987) (quotations and alterations omitted); cf. United Foods,
Inc. v. United States, 197 F.3d 221, 225 (6th Cir. 1999) (“the
effort by the Department of Agriculture to force payments from
plaintiff for advertising is invalid under the First Amendment.
The portions of the Mushroom Act of 1990 which authorize such
coerced payments for advertising are likewise unconstitutional.”)
(emphases added), aff’d, 533 U.S. 405 (2001).
b.
Providing plaintiffs with a remedy does not demand a
broad injunction.
hardly novel.
Plaintiffs’ claims, whatever their merits, are
Courts have long experience in fashioning remedies
for the forced subsidization of objectionable speech.
See, e.g.,
Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990) (noting
existence of procedures that allow organizations to meet their
obligations under Abood v. Detroit Bd. of Educ., 431 U.S. 209
(1977)); Ellis v. Brotherhood of Ry., Airline & Steamship Clerks,
466 U.S. 435, 444 (1984); Abood, 431 U.S. at 240 (discussing
possible decrees including “reduc[ing] future exactions by the
same proportion” of funds spent on political activities).
9
The District Court’s refusal to fashion a remedy that would
provide plaintiffs with relief while preserving the
unobjectionable provisions of the Beef Act was an abuse of
discretion.
The Seventh Circuit’s treatment of a similar failure
is instructive.
In Southworth v. Grebe, 151 F.3d 717 (7th Cir.
1998), rev’d on other grounds sub. nom., Board of Regents of
Univ. of Wisc. v. Southworth, 529 U.S. 217 (2000), the district
court ruled that the University of Wisconsin’s method of funding
campus groups with student funds violated the rights of students
who did not wish to associate themselves with the viewpoints of
the funded groups.
Though upholding the district court’s
constitutional analysis -- later reversed by the Supreme Court -the Seventh Circuit determined that the court’s injunction
against the program swept too broadly.
The district court
enjoined the university from “ ‘funding private groups that
engage in ideological or political advocacy’ ” and required that
the school use such funds only “ ‘for activities reasonably
intended to promote its educational mission by providing
opportunities for the free expression of diverse viewpoints.’ ”
Id. at 733-734.
This was error because it “fail[ed] to limit
itself to those fees paid by the objecting students.”
Just so here.
Id.
Nothing prevented the District Court from
curing the purported constitutional violation by permitting
plaintiffs to refrain from paying their assessments or,
alternatively, paying a prorated portion of their assessments to
reflect the percentage of checkoff funds used for advertising
activities.
10
Even if this Court were ultimately to agree with the
District Court that exempting plaintiffs from the assessments -or a portion thereof -- would “rewrite the Act,” such an
exemption would be a proper form of interim relief pending this
Court’s review of the constitutional question.
At the very
least, the District Court should have stayed those portions of
its injunction unrelated to the purported harms suffered by
plaintiffs until this Court could review them.
c.
Enjoining the Board from collecting any checkoffs after
July 15 places an excessive burden upon the Government.
As the
Government explains in its motion (pp. 17-19), the order works a
major disruption of the Beef Act’s programs.
Those programs --
widely popular among beef producers -- have been in effect for
more than 15 years.
There is little harm to plaintiffs or anyone
else in allowing the Beef Act to remain in effect during the few
months necessary to dispose of an appeal.
At a minimum, because
the District Court’s sweeping injunction is unnecessary to
provide the plaintiffs relief, it should be stayed insofar as it
affects the Board’s rights vis-à-vis non-parties to this action.
Virginia Soc’y for Human Life, Inc. v. Federal Election Comm’n,
263 F.3d 379, 393 (4th Cir. 2001) (amending permanent injunction
against unconstitutional regulation to protect only the plaintiff
from prosecution under regulation); Meinhold v. United States
Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994) (limiting
relief for discharged serviceman to reinstatement and injunction
against the challenged policy’s application to him).
11
The District Court’s stated concern that a limited holding
would encourage suits “in this and other federal jurisdictions,”
Op. at 19 (emphasis added), is untenable.
By seeking to control
the Government’s conduct on a nationwide basis, the court’s order
treads upon the authority of other federal circuits to reach
their own conclusions on the constitutionality of the Beef Act.
Virginia Society for Human Life addressed a similar order.
Although the Fourth Circuit affirmed a district court’s
conclusion that an FEC regulation was unconstitutional, it
vacated the court’s nationwide injunction against enforcement.
263 F.3d at 393.
On remand, the district court was directed to
limit the injunction to protect only the plaintiff.
Id.
The
Fourth Circuit explained that curtailing the injunction was
necessary to prevent other courts of appeals from being bound by
the decision of a single circuit.
“A contrary policy would
‘substantially thwart the development of important questions of
law by freezing the first final decision rendered on a particular
legal issue.’
It would also deprive the Supreme Court of the
benefit of decisions from several courts of appeals.”
Id.
(quoting United States v. Mendoza, 464 U.S. 154, 160 (1984))
(citations omitted).
For the same reason, the scope of the
District Court’s injunction should be limited to the payments
made by plaintiffs here.
12
CONCLUSION
For the foregoing reasons, and those stated in the
Government’s motion, NCI, Sharp, and Jones support the
Government’s request to stay the District Court’s June 21, 2002
Order and judgment pending appeal.
Respectfully submitted,
John G. Roberts, Jr.
Lorane F. Hebert
Michael R. Grynberg
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5810
Attorneys for IntervenorsAppellants Nebraska Cattlemen,
Inc., Gary Sharp, and Ralph
Jones
Dated:
July 10, 2002
13
CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of July, 2002, I
served the foregoing Intervenors-Appellants’ Response to the
Government’s Emergency Motion for a Stay Pending Appeal by
messenger on:
Douglas N. Letter
Howard S. Scher
Attorneys, Appellate Staff
Civil Division
Department of Justice
601 D Street, N.W., Room 9104
Washington, D.C. 20530-0001
Philip C. Olsson
Ryan Stroschein
Olsson, Frank & Weeda, P.C.
1400 Sixteenth Street, N.W.
Suite 400
Washington, D.C. 20036-2220
I further certify that on this 10th day of July, 2002, I
served the foregoing Intervenors-Appellants’ Response to the
Government’s Emergency Motion for a Stay Pending Appeal by
facsimile and Federal Express on:
Scott Heidepriem
Ronald A. Parsons
Johnson, Heidepriem, Miner,
Marlow & Janklow L.L.P.
431 N. Phillips Avenue
Suite 400
Sioux Falls, SD 57104-5933
______________________________
John G. Roberts, Jr.