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 D.C. No.

CENTER; MISSISSIPPI POULTRY  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
Opinion by Judge Wu

15442 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 Francisco, California, for the appellants.

Gregory G. Katsas, Jonathan F. Cohn, Michael S. Raab and

Henry C. Whitaker, Civil Division, U.S. Department of Justice, 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

15444 LEVINE v. VILSACK
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 subsequent to the enactment) term the “Humane Methods of

Slaughter Act of 1958” (“HMSA of 1958”).1See 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 September 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 District 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.

1As 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. 

LEVINE v. VILSACK 15445
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 handling of livestock in connection with slaughter shall be carried

out only by humane methods.” 7 U.S.C. § 1901. It also authorized and directed the Secretary to designate “humane” methods 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 religious 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 enforcement provision, but only in the form of generally prohibiting

2A 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). 

15446 LEVINE v. VILSACK
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 identified 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 favoring 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 provision (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 connection 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 connection with slaughter livestock by any methods other than methods designated and approved by the Secretary of Agriculture . . . .

4The 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)). 

LEVINE v. VILSACK 15447
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 livestock 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 regulations, 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

15448 LEVINE v. VILSACK
the FMIA. See 44 Fed. Reg. 37,954 (June 29, 1979). Nevertheless, 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 Administration, 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 catfish 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). 

LEVINE v. VILSACK 15449
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 slaughtering requirements covered chickens following the 1978 amendments.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”) entitled “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 provisions 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 practices, 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 “inhumane 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. 

15450 LEVINE v. VILSACK
acted arbitrarily and capriciously in violation of the Administrative Procedure Act (“APA”). In the SAC’s “Request for

Relief,” Levine sought an order: (1) “declaring USDA’s decision 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 Register 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 dismissing 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 determination 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); Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d

668, 678 (9th Cir. 2007). Where standing is raised in connecLEVINE v. VILSACK 15451
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 suffered 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 redressability determination. Here, a key to assessing the redressability 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

15452 LEVINE v. VILSACK
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 judgment 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 preventing 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 regulation (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 government 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 plaintiff is not himself the object of the government

action or inaction he challenges, standing is not preLEVINE v. VILSACK 15453
cluded, but it is ordinarily “substantially more difficult” 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 element 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 concluded that redressability was likely because of the availability 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 redressability here, the Secretary’s actions under the FMIA are

15454 LEVINE v. VILSACK
equally outside the scope of this lawsuit (which seeks declaratory/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 matter, 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 promulgate 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 eligibility for retirement benefits. However, because any

increase in the benefits for which plaintiffs would be

eligible was entirely contingent upon the actual content 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

LEVINE v. VILSACK 15455
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 notentirely-dissimilar set of speculative steps would have to

occur here. First, the Secretary would have to make the independent policy determination (taking into consideration the

ruling in this case or not) that he should deem chickens, turkeys 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 processors/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 otherwise 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

7The 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 “enforcement responsibilities” would have remained applicable even if a

plaintiff victory would have precluded state enforcement), and the decisions addressed therein. This case is also plainly distinguishable from Federal 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 disburse any funds to the plaintiffs should they prevail in the action. 

8Because the substance of the regulations the Secretary would or would

not eventually issue in response to a victory for Levine in this litigation

15456 LEVINE v. VILSACK
bird processors would then have to abide by those regulations, 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 assumption 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 regulations would resolve the particular harms — physical, economic or aesthetic — 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 inhumanely 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 producing 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,” “microbiological contamination,” “zoonotic diseases,” and “decomposition.” Id.

at § 417.2(a)(3). One of the “processing categories” which is to be analyzed 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 poultry, 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 “amenable species.” 

LEVINE v. VILSACK 15457
[5] In other words, using Bennett’s terminology, the “determinative 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 species” status under the 2005 amendments to the FMIA. However, that decision is not at issue in this lawsuit. Further, that

decision may be subject to a number of political and legal factors 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 Services, 271 F.3d 301 (D.C. Cir. 2001), where the D.C. Circuit

9Though 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 Congress had not done something “clear and definitive”: 

Certainly, I know my clients have talked to Congress about clarifying 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 Congressional 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). 

15458 LEVINE v. VILSACK
found no problem with Article III standing. In Tozzi, the Secretary 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 seemingly 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 cancer 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, seemingly by itself, would have provided redressability for “at

LEVINE v. VILSACK 15459
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 decisions 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 regulations 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 Regulation 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 contractor’s] performance“ under a contract which merely calls

for the provision or delivery of poultry products to the Government. Levine also has not pointed to or alleged the existence 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

10In 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 plaintiffs’ 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 thirdparty standing before the district court. If it did not, it has waived the argument 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 consider all possible arguments supporting a plaintiff’s standing, whether or

not plaintiff has made them); Sherman v. SEC (In re Sherman), 491 F.3d

15460 LEVINE v. VILSACK
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 connection 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 considering 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 complaint, and must construe the complaint in favor of the complaining party”).11 But see Am. Fed’n of Gov’t. Employees

948, 957 (9th Cir. 2007) (reciting — in the context of a challenge to standing — the familiar rule that the issue of Article III standing must be considered on appeal regardless of whether it was raised below); Smith v.

Arthur Andersen LLP, 421 F.3d 989, 999 (9th Cir. 2005) (permitting parties to “bolster” their defense to opposing party’s challenge to standing by

way of particular standing argument not raised below). 

11Warth 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). 

LEVINE v. VILSACK 15461
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 Secretary of Agriculture would act to include chickens, turkeys and

other birds as “amenable species” under the FMIA. See Fernandez, 840 F.2d at 625-26 (reviewing the standing issue by

accepting as true all material allegations of the complaint notwithstanding 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.

12Because 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). 

15462 LEVINE v. VILSACK