United States Court of Appeals 

For the First Circuit 

No. 19-2236 

NYDIA MERCEDES HERNÁNDEZ-GOTAY; FAUSTINO ROSARIO-RODRÍGUEZ; LUIS 

JOEL BARRETO-BARRETO; CARLOS QUIÑONES-FIGUEROA; LAURA GREEN, 

Plaintiffs, Appellants, 

CLUB GALLÍSTICO DE PUERTO RICO, INC., 

Plaintiff, 

and 

ASOCIACIÓN CULTURAL Y DEPORTIVA DEL GALLO FINO DE PELEA; ÁNGEL 

MANUEL ORTIZ-DÍAZ; JOHN J. OLIVARES-YACE; ÁNGEL LUIS NARVÁEZRODRÍGUEZ; JOSÉ MIGUEL CEDEÑO, 

Plaintiffs, 

v. 

UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY 

PERDUE, Secretary of the Department of Agriculture;* UNITED 

STATES DEPARTMENT OF JUSTICE; JEFFREY A. ROSEN, Acting Attorney 

General;** DONALD J. TRUMP, President, 

Defendants, Appellees. 

* It appears that appellants have misspelled the Secretary's 

name, an error which is reflected in their briefing and on the 

docket. The Clerk of Court shall amend the case caption to reflect 

the correct spelling as used in this opinion. 

** Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney 

General Jeffrey A. Rosen has been substituted for former Attorney 

General William P. Barr as appellee. 
No. 20-1084 

ASOCIACIÓN CULTURAL Y DEPORTIVA DEL GALLO FINO DE PELEA; ÁNGEL 

MANUEL ORTIZ-DÍAZ; JOHN J. OLIVARES-YACE; ÁNGEL LUIS NARVÁEZRODRÍGUEZ; JOSÉ MIGUEL CEDEÑO, 

Plaintiffs, Appellants, 

and 

CLUB GALLÍSTICO DE PUERTO RICO, INC.; NYDIA MERCEDES HERNÁNDEZGOTAY; FAUSTINO ROSARIO-RODRÍGUEZ; LUIS JOEL BARRETO-BARRETO; 

CARLOS QUIÑONES-FIGUEROA; LAURA GREEN, 

Plaintiffs, 

v. 

UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY 

PERDUE, Secretary of the Department of Agriculture; UNITED 

STATES DEPARTMENT OF JUSTICE; JEFFREY A. ROSEN, Acting Attorney 

General; DONALD J. TRUMP, President, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lynch and Barron, Circuit Judges. 

Edwin Prado-Galarza and María A. Domínguez, with whom Rafael 

Ojeda, Félix Román Carrasquillo, and DMRA Law LLC were on briefs, 

for appellants. 

Jeffrey Bossert Clark, Sr., with whom Ethan P. Davis, Acting 

Assistant Attorney General, W. Stephen Muldrow, United States 

Attorney, Abby C. Wright, Attorney, Appellate Staff Civil 

Division, and John S. Koppel, Attorney, Appellate Staff Civil 

Division were on brief, for appellees. 

Isaías Sánchez-Báez, Solicitor General of Puerto Rico, and 
Carlos Lugo-Fiol on brief for the Commonwealth of Puerto Rico, 

amicus curiae. 

Jorge Martínez-Luciano, Emil Rodríguez-Escudero, and M.L. & 

R.E. Law Firm on brief for the Puerto Rico Association of Mayors, 

amicus curiae. 

Ana Maria Hernandez Marti and Jessica L. Blome on brief for 

Animal Wellness Action, Animal Wellness Foundation, and the Center 

for a Humane Economy, amici curiae. 

January 14, 2021 
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LYNCH, Circuit Judge. Plaintiffs in these consolidated 

cases challenge the constitutionality of Section 12616 of the 

Agriculture Improvement Act of 2018 ("Section 12616"), which bans 

the "sponsor[ship]" and "exhibit[ion]" of cockfighting matches in 

Puerto Rico. Pub. L. No. 115-334, § 12616, 132 Stat. 4490, 5015-

16 (codified as amended at 7 U.S.C. § 2156). Plaintiffs argue 

that the law exceeds Congress's Commerce and Territorial Clause 

powers and violates their First Amendment and Due Process rights. 

We affirm the district court's decision and hold that Section 12616 

is a valid exercise of Congress's Commerce Clause power and does 

not violate plaintiffs' individual rights.1

I. Background 

On appeal from the grant of the government's motion for 

summary judgment, we read the facts in the light most favorable to 

the plaintiffs. Stamps v. Town of Framingham, 813 F.3d 27, 30 

(1st Cir. 2016). 

Cockfighting is "the sport of pitting gamecocks to fight 

and the breeding and training of them for that purpose." 

Cockfighting, Britannica, https://www.britannica.com/sports

/cockfighting (last visited Dec. 17, 2020). The birds are bred to 

1 We acknowledge and thank the amici curiae for their 

submissions in this case. The Puerto Rico Association of Mayors 

and the Commonwealth of Puerto Rico filed amicus curiae briefs in 

support of appellants. Animal Wellness Action, Animal Wellness 

Foundation, and the Center for a Humane Economy submitted an amicus 

curiae brief in support of the government. 
- 5 - 

fight, are typically armed with steel spurs, and fight until one 

of the birds dies or is so injured that it can no longer fight. 

The Cockfight: A Casebook, at vii (Alan Dundes ed., 1994). The 

fights may end in a few minutes or go on as long as half an hour. 

Id. Cockfighting was banned in Puerto Rico from 1898 to 1933, and 

has since been heavily regulated under local Puerto Rico law. See 

P.R. Laws Ann. tit. 15 §§ 301 et seq. 

In 1976, Congress amended the Animal Welfare Act ("AWA") 

to ban "animal fighting venture[s]," now defined as "any event, in 

or affecting interstate or foreign commerce, that involves a fight 

conducted . . . between at least 2 animals for purposes of sport, 

wagering, or entertainment." 7 U.S.C. § 2156(f)(1); Animal Welfare 

Act Amendments of 1976, Pub. L. No. 94-279, 90 Stat. 417, 421-22 

(codified as amended at 7 U.S.C. § 2156). Those 1976 amendments 

contained an exception allowing fights between "live birds" which 

took place in any state where such fights were allowed under state 

law. Animal Welfare Act Amendments of 1976 § 17. Puerto Rico is 

treated as a state under the AWA. 7 U.S.C. § 2156(f)(3).

Congress has amended the animal fighting venture 

prohibition several more times. As of 2018, before the passage of 

the law at issue in this case, Congress had banned attendance at 

all animal fighting ventures -- including those in Puerto Rico and 

other jurisdictions which still allowed cockfighting -- and the 

"[b]uying, selling, delivering, possessing, training, or 
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transporting" of animals for the purpose of having the animal 

participate in an animal fighting venture. 7 U.S.C. § 2156(a)(2), 

(b) (2018). 

In 2018, Congress passed Section 12616, which removed 

the remaining exception that allowed individuals to "[s]ponsor[] 

or exhibit[]" cocks in fights if allowed under local law and if 

they lacked knowledge that the cocks were moved in interstate 

commerce for purposes of cockfighting. See Section 12616(a); 7 

U.S.C. § 2156. It also closed an exception which had allowed the 

use of interstate mail or services to advertise or promote 

cockfights taking place in states which permitted cockfighting. 

See Section 12616(b); 7 U.S.C. § 2156(c); Farm Security and Rural 

Investment Act of 2002, Pub. L. No. 107-171 § 10302, 116 Stat. 

134, 492. 

The sponsors of Section 12616 explained that prohibiting 

cockfighting would "move to end the cruelty of animal fighting," 

"protect . . . communities from associated crimes such as illegal 

drug dealing and human violence," and "safeguard against the spread 

of diseases in poultry such as avian flu, since birds used in 

cockfighting are particularly vulnerable." Further, "[a]fter a 

2002 outbreak of exotic Newcastle disease in the U.S., which cost 

taxpayers nearly $200 million and the poultry industry many 

millions more, the USDA implicated cockfighting as a culprit in 

spreading the disease." 
- 7 - 

II. Procedural History 

On May 22 and August 1, 2019, plaintiffs filed two suits 

to enjoin the enforcement of Section 12616.2 The cases were 

consolidated by the district court on August 5, 2019. 

Plaintiffs asserted a number of claims, including that 

Section 12616 violated their First Amendment and Due Process 

rights, and that Congress exceeded its powers under the Commerce 

and Territorial Clauses. Club Gallístico de P.R. Inc. v. United 

States, 414 F. Supp. 3d 191, 201 (D.P.R. 2019). The plaintiffs 

lodged both facial and as-applied pre-enforcement challenges to 

the statute. Id. at 200.3

The government asserted that plaintiffs did not have 

standing to challenge the portions of the animal fighting venture 

ban that were unchanged by Section 12616.4 Id. at 203. 

2 Plaintiffs were individuals and a corporation which own 

cockfighting rings; individuals who breed, own, or invest in birds; 

individuals who work for cockfighting arenas; an artisan who crafts 

cockfighting-inspired art to be sold across state lines; and a 

cultural association dedicated to "preserving the tradition, 

culture, and economic benefits of cockfighting."

3 Any facial challenge fails because the statute has 

"plainly legitimate sweep." Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 449 (2008). Therefore, we address 

only the as-applied challenge. 

4 On appeal, plaintiffs have dropped their claims that 

Section 12616 violates the anti-commandeering doctrine, that 

Section 12616 is a Bill of Attainder, that Section 12616 is 

inapplicable to Puerto Rico under the Puerto Rico Federal Relations 

Act, that Section 12616 violates the Takings Clause, and that 

Section 12616 violates their right to travel. Club Gallístico de 

P.R. Inc., 414 F. Supp. 3d at 201. The district court rejected 
- 8 - 

The parties filed cross-motions for summary judgment. 

Id. at 201. The district court granted the government's motion 

and denied plaintiffs' motion. Id. at 202.

The district court first held that the plaintiffs had 

"standing to challenge the constitutionality of Congress' 

extension of the animal fighting prohibition to the Commonwealth 

of Puerto Rico and those provisions that have existed prior to 

Section 12616's approval." Id. at 204. 

The district court then concluded that Section 12616 was 

a valid exercise of Congress's Commerce Clause and Territorial 

Clause powers. Id. at 204-08. It next held that cockfighting is 

not expressive conduct and so is unprotected by the First 

Amendment, and that Section 12616 did not violate plaintiffs' right 

of free association because it does not actually restrict 

association. Id. at 209-10. The district court rejected the 

substantive Due Process claim because there is no fundamental right 

to cockfighting and there was a rational basis for passing Section 

12616. Id. at 211. It also rejected plaintiffs' procedural Due 

Process claim, stating that "the legislative process itself 

provides citizens with all of the process they are due." Id. 

(quoting Correa-Ruiz v. Fortuño, 573 F.3d 1, 15 (1st Cir. 2009)). 

each of these claims. Id. at 201-02, 208-09, 211-12. 

The government did not renew its argument that 

plaintiffs lacked standing. 
- 9 - 

This appeal followed.5 

III. Analysis 

We review the district court's grant of summary judgment 

de novo. Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020). 

 We first address the issue of standing, followed by the 

Commerce Clause, First Amendment, and Due Process arguments. 

A. Standing 

Federal courts have "an independent obligation to assure 

that standing exists, regardless of whether it is challenged by 

any of the parties." Summers v. Earth Island Inst., 555 U.S. 488, 

499 (2009). 

To have standing, a plaintiff must "'allege[] such a 

personal stake in the outcome of the controversy' as to warrant 

his invocation of federal-court jurisdiction." Id. at 493 (quoting 

Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). "To satisfy Article 

III's 'personal stake' requirement vis-à-vis a statutory 

challenge, the plaintiff bears the burden of demonstrating that 

(i) she has suffered an actual or threatened injury in fact, which 

is (ii) fairly traceable to the statute, and (iii) can be redressed 

by a favorable decision." Ramírez v. Sánchez Ramos, 438 F.3d 92, 

97 (1st Cir. 2006) (first citing Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560-61 (1992); and then citing Lewis v. Cont'l Bank 

5 Plaintiff Club Gallístico de Puerto Rico, Inc. withdrew 

from this appeal after the notice of appeal was filed. 
- 10 - 

Corp., 494 U.S. 472, 477 (1990)). "[A] plaintiff satisfies the 

injury-in-fact requirement where he alleges 'an intention to 

engage in a course of conduct arguably affected with a 

constitutional interest, but proscribed by a statute, and there 

exists a credible threat of prosecution thereunder.'" Susan B. 

Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt 

v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). 

We conclude that plaintiff Ángel Manuel Ortiz-Díaz, the 

owner of two cockfighting venues and a breeder and owner of more 

than 200 gamecocks, has standing to challenge Section 12616. Ortiz 

faces a credible threat of prosecution under Section 12616 because 

he regularly sponsors and exhibits cockfighting matches at his 

cockpits.6 The other standing requirements are clearly met. 

Article III's case-or-controversy requirement is satisfied if at 

least one party has standing. Bowsher v. Synar, 478 U.S. 714, 721 

(1986). 

We also hold that Ortiz's claims are ripe. Ortiz's 

business is to sponsor and exhibit cockfights, and Section 12616 

6 Although Section 12616 does not define "sponsor[ship]" 

or "exhibit[ion]," the government has stated that it would 

understand at least one of those terms to encompass Ortiz's conduct 

for purposes of enforcing the statute. 

As to the other plaintiffs, each of them is involved in 

the same class of commercial activities as Ortiz. See County of 

Los Angeles v. Davis, 440 U.S. 625, 631 (1979); United States v. 

Poulin, 631 F.3d 17, 21 (1st Cir. 2011). 
- 11 - 

bans such activity. Thus, there is a controversy with "sufficient 

immediacy and reality to warrant the issuance of a declaratory 

judgment." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 

(2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 

273 (1941)). 

B. Commerce Clause 

Plaintiffs argue that Congress exceeded its authority 

under the Commerce Clause in enacting Section 12616. 

The Commerce Clause empowers Congress to regulate 

"activities that substantially affect interstate commerce." 

United States v. Lopez, 514 U.S. 549, 559 (1995). This includes 

"purely local activities that are part of an economic 'class of 

activities' that have a substantial effect on interstate 

commerce." Gonzales v. Raich, 545 U.S. 1, 17 (2005). "In 

assessing the scope of Congress' authority under the Commerce 

Clause, . . . [w]e need not determine whether [plaintiffs'] 

activities, taken in the aggregate, substantially affect 

interstate commerce in fact, but only whether a 'rational basis' 

exists for so concluding." Id. at 22 (quoting Lopez, 514 U.S. at 

557). 

In making this inquiry, we consider four factors: 

(1) whether the statute regulates economic or 

commercial activity; (2) whether the statute 

contains an "express jurisdictional element" 

that limits the reach of its provisions; (3) 

whether Congress made findings regarding the 
- 12 - 

regulated activity's impact on interstate 

commerce; and (4) whether "the link between 

[the regulated activity] and a substantial 

effect on interstate commerce was attenuated." 

 

United States v. Morales-de Jesús, 372 F.3d 6, 10 (1st Cir. 2004) 

(alteration in original) (quoting United States v. Morrison, 529 

U.S. 598, 610-12 (2000)). 

As to the first factor, plaintiffs argue in passing that 

the statute "does not truly regulate economic or commercial 

activity." But, as explained by the Fourth Circuit, the AWA bans 

animal fights for "purposes of sport, wagering, or entertainment," 

all of which are "closely aligned in our culture with economics 

and elements of commerce." United States v. Gibert, 677 F.3d 613, 

624 (4th Cir. 2012). And here, the government does not assert 

that the jurisdictional element, which defines the regulated 

activity as that "in or affecting interstate or foreign commerce," 

7 U.S.C. § 2156(f)(1), would be satisfied were there no commercial 

aspect to a particular cockfight. Moreover, on this record, 

Ortiz's sponsorship and exhibition of cockfights for profit is 

clearly economic and commercial, as are the activities of the 

remaining plaintiffs. 

As to the second factor, the plaintiffs argue that the 

"express jurisdictional element" of the AWA -- which bans all 

cockfighting "in or affecting interstate or foreign commerce," 7 

U.S.C. § 2156(f)(1) -- is an "illusion" which does not articulate 
- 13 - 

a meaningful boundary between interstate and intrastate commerce. 

As the Supreme Court has explained, an express jurisdictional 

element "may establish that the enactment is in pursuance of 

Congress' regulation of interstate commerce," Morrison, 529 U.S. 

at 612, and can "ensure, through case-by-case inquiry, that the 

[prohibited conduct] in question affects interstate commerce," 

Lopez, 514 U.S. at 561. And, as we have noted above, the government 

does not argue that the jurisdictional element would be satisfied 

as to a cockfight lacking a commercial aspect. Thus, the 

jurisdictional element here is sufficient. See id. at 561-62. 

As to the third factor, plaintiffs argue that Congress 

made no findings regarding the 2018 amendments' impact on 

interstate commerce. Plaintiffs assert that we should not look to 

Congress's reasons for banning animal fighting ventures in 

general, because they challenge only Section 12616. We disagree. 

Section 12616 extended the existing ban to Puerto Rico rather than 

creating entirely new restrictions, so earlier findings are 

relevant and must be considered. 

Multiple congressional findings underscore the 

interstate commercial impact of cockfighting. Congress clarified 

in the AWA's "statement of policy" that the "animals and activities 

which are regulated under this chapter are either in interstate or 

foreign commerce or substantially affect such commerce or the free 

flow thereof." 7 U.S.C. § 2131. As pointed out by the Fourth 
- 14 - 

Circuit, the House Report discussing the 1976 amendments found 

that animal fighting ventures "(a) attract fighting animals and 

spectators from numerous states, (b) are or have been advertised 

in print media of nationwide circulation, and (c) often involve 

gambling and other 'questionable and criminal activities.'" 

Gibert, 677 F.3d at 625 (quoting H.R. Rep. No. 94-801, at 9 (1976), 

as reprinted in 1976 U.S.C.C.A.N 758, 761). Senator Maria Cantwell 

also noted that cockfighting can contribute to the spread of avian 

flus, a concern of particular importance given the present ongoing 

COVID-19 pandemic. See 153 Cong. Rec. S451-52 (daily ed. Jan. 11, 

2007) (Statement of Sen. Cantwell). 

As to the fourth factor, plaintiffs argue that Section 

12616's effect on interstate commerce is incidental and 

attenuated. In light of the jurisdictional hook, and the nature 

of the plaintiffs' relationship to commercial cockfighting, in 

this case the effects on interstate commerce are certainly not 

incidental. 

These factors require the conclusion that the 

prohibitions in the statute are about activities which 

substantially affect interstate commerce. We hold that Section 

12616 is a legitimate exercise of the Commerce Clause power.7

7 As the Commerce Clause power is sufficient, we need not 

reach the Territorial Clause issue. 
- 15 - 

B. First Amendment 

Plaintiffs argue that Section 12616 infringes on their 

First Amendment freedoms of speech and association. We reject 

both claims. 

The First Amendment states that "Congress shall make no 

law . . . abridging the freedom of speech." U.S. Const. amend. I. 

Conduct "sufficiently imbued with elements of communication" is 

also protected under the First Amendment. Texas v. Johnson, 491 

U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 

409 (1974)). However, conduct cannot "be labeled 'speech' whenever 

the person engaging in the conduct intends thereby to express an 

idea." United States v. O'Brien, 391 U.S. 367, 376 (1968). In 

deciding whether conduct deserves First Amendment protection, we 

ask both whether it was "intended to be communicative" and whether 

it, "in context, would reasonably be understood by the viewer to 

be communicative." Clark v. Cmty. for Creative Non-Violence, 468 

U.S. 288, 294 (1984). "It is the duty of the party seeking to 

engage in allegedly expressive conduct to demonstrate that the 

First Amendment applies to that conduct." Wine & Spirits 

Retailers, Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir. 2005). 

Plaintiffs argue that cockfighting in Puerto Rico is 

expressive conduct entitled to First Amendment protection. We 

disagree. Plaintiffs' assertion that cockfighting "express[es] 

their culture and deeply rooted sense of self-determination" is 
- 16 - 

insufficient to show that their sponsorship or exhibition of 

cockfighting "would reasonably be understood by the viewer to be 

communicative." Cmty. for Creative Non-Violence, 468 U.S. at 294; 

see also United States v. Stevens, 559 U.S. 460, 469 (2010) 

(recognizing "long history" of banning animal cruelty). By the 

same token, the O'Brien test does not apply here because plaintiffs 

have failed to identify any expressive element in the cockfighting 

activities that they engage in such that Section 12616 could be 

considered even an incidental burden on speech. See O'Brien, 391 

U.S. at 376-77. Even had plaintiffs shown that their cockfighting 

activities contained some expressive element, Section 12616 is 

plainly permissible as an incidental restraint on such speech. 

See id. at 377. 

Plaintiffs next argue that Section 12616 infringes on 

their First Amendment associational right to "peaceably . . . 

assemble." U.S. Const. amend. I. They argue that "the 

criminalization of cockfighting in Puerto Rico deters Appellants 

from assembling to discuss and express their views regarding 

cockfighting." This argument fails. Nothing in Section 12616 

curtails any discussion or expression of a person's views regarding 

cockfighting, and this section does not restrict assembly for those 

purposes at all. See Knox v. Serv. Emps. Int'l Union, Local 1000, 

567 U.S. 298, 309 (2012) (noting that under the Free Assembly 

Clause, "the ability of like-minded individuals to associate for 
- 17 - 

the purpose of expressing commonly held views may not be 

curtailed"); Holder v. Humanitarian L. Project, 561 U.S. 1, 39 

(2010) (distinguishing prior free association cases that penalize 

"mere" or "simple" association as opposed to "the act of giving 

material support" (quoting Humanitarian L. Project v. Reno, 205 

F.3d 1130, 1133 (9th Cir. 2000))). Section 12616 cannot be 

invalidated on this ground.8 

C. Due Process 

Plaintiffs next argue that the passage of Section 12616 

violated their procedural and substantive Due Process rights. 

Plaintiffs conceded at oral argument that they have no 

cognizable liberty interest at stake other than their purported 

First Amendment interest. That concession dooms the argument they 

are making. Even apart from their concession, plaintiffs have not 

shown that they have any cognizable liberty interest which is being 

infringed by these prohibitions. We reject their procedural and 

substantive Due Process challenges.9 See U.S. Const. amends. V, 

8 Plaintiffs' reference to the Universal Declaration of 

Human Rights is of no avail. "[T]he Declaration does not of its 

own force impose obligation as a matter of international law." 

Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004); see also 

Medellín v. Texas, 552 U.S. 491, 504-05 (2008) (stating that nonself-executing treaties do not create domestic law). 

9 It is still unsettled whether due process requirements 

apply to Puerto Rico by way of the Fifth or Fourteenth Amendment. 

See Tenoco Oil Co. v. Dep't of Consumer Affs., 876 F.2d 1013, 1017 

n.9 (1st Cir. 1989). This is of no matter, because "the language 

and policies of the Due Process Clauses of the Fifth and Fourteenth 

Amendments are essentially the same." United States v. Neto, 659 
- 18 - 

XIV (protecting only against the deprivation of "life, liberty, or 

property, without due process of law"); Bd. of Regents of State 

Colls. v. Roth, 408 U.S. 564, 569-70 (1972). 

IV. Conclusion 

The judgment of the district court is affirmed. 

F.3d 194, 201 n.7 (1st Cir. 2011) (internal quotation marks and 

citation omitted).