Opposition Brief — Rose Acre Farms, Inc. v. Madigan

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, 1 JUL 27 1992

No. 91-1879

— _ tition {1F CLERK

Iu the Supreme Court of the Wuited States

OCTOBER TERM, 1992

ROSE ACRE FARMS, INC., PETITIONER

EDWARD MADIGAN, SECRETARY OF AGRICULTURE,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

DOUGLAS N. LETTER

JEFFREY CLAIR

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that

the Claims Court is the appropriate forum to resolve

petitioner’s claim for compensation assertedly due un-

der the Takings Clause of the Fifth Amendment and

21 U.S.C. 114a and 134a(d).

2. Whether, under the Fifth Amendment and 21

U.S.C. 114a and 134a(d), petitioner must be com-

pensated for losses allegedly incurred under regula-

tions restricting the interstate movement of eggs and

chickens linked to salmonella poisoning of humans.

(1)

TABLE OF CONTENTS

Page

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asc bcea nace netbeans sansabubianienion 10

a somiabeubistdndecanaasanansananad 18

TABLE OF AUTHORITIES

Cases:

Abboit Laboratories v. Gardner, 387 U.S. 1386

a 20a A TREO RO 12

Bowen V. Massachusetts, 487 U.S. 879 (1988)........ 12, 13,

14, 15

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) .... 15

First Lutheran Church v. Los Angeles County, 482

Teen no ci ceancandanpnseannntonion 11

Julius Goldman’s Egg City v. United States, 697

er A RR OD oc cneccnnsamnannsmnacionn 13

K Mart Corp. Vv. Cartier, Inc., 486 U.S. 281 (1988)... 11

Loftin v. United States, 6 Cl. Ct. 596 (1984),

aff’d, 765 F.2d 1117 (Fed. Cir. 1985) .....0000022.... 13

Preseault v. ICC, 494 U.S. 1 (1990) ............00000022.... 14

Ruckelshaus Vv. Monsanto, 467 U.S. 986 (1984)... 14

Zellous V. Broadhead Associates, 906 F.2d 94 (3d

ag aio cs bi pntenhicciisisindicnisndatedantind 15

Constitution, statutes, and regulations:

Ne on sscmaneansnesumnsamesonninse 8,17

eee 8,9, 10, 13, 14, 17

Administrative Procedure Act, 5 U.S.C. 701 et seq.:

shh hammannnns 12, 15

I 12, 13, 15

I Bi Be AF tits BI ccc cnececnnccnccnnecessevcesscnaceessee 12,14

no clseante 9

Sh soa ca aahisleguawtaninpkeamnaunnibioes 3, 16

I a ancien 3, 5, 8, 16, 17

(111)

TABLE OF AUTHORITIES—Continued

Statutes and regulations—Continued: Page

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Miscellaneous:

Black’s Law Dictionary (6th ed. 1990) ......00000.0..... 17

55 Fed. Reg. (1990) :

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5 aa het I eee ON A ERR EER eens AHORA 4

56 Fed. Reg. (1991)

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RSIS Siperreneepc en Comenne ene ane Carn 6, 7,17

I che tcecehahae aas et asa cachet neesegeanaaieN 4

I adele eens 5

57 Fed. Reg. (1992)

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Tg , na LOR OR RES OEE NUN Nee EEO TEAS 5

Webster’s Third New International Dictionary

PIII E vas tasGussaaciocsisdaceseadechamndstaodaeanannacain banca obeheniae 17

Iu the Suprenw Court of the United States

OCTOBER TERM, 1992

No. 91-1879

RosE ACRE FARMS, INC., PETITIONER

Vv.

EDWARD MADIGAN, SECRETARY OF AGRICULTURE,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. la-

14a, is reported at 956 F.2d 670. The opinion of the

district court, Pet. App. 15a-46a, is unreported.

JURISDICTION

The court of appeals entered judgment on Febru-

ary 10, 1992. Pet. App. la. The court of appeals

denied a petition for rehearing on February 26, 1992.

(1)

Pet. App. 50a. The petition for a writ of certiorari

was filed on May 22, 1992. This Court’s jurisdiction

is invoked pursuant to 28 U.S.C. 1254(1).

STATEMENT

Petitioner Rose Acre Farms, Ine. challenges fed-

eral regulations restricting interstate movement of

table eggs and chickens linked to salmonella poison-

ing in humans.

1. Salmonella enteritidis (salmonella) is a com-

municable disease that poses a serious threat to pub-

lic health. In healthy adults, salmonella can produce

violent illness requiring hospitalization for severe

fever, diarrhea, and vomiting. Pet. App. la. In

elderly people, children, and persons with immune

systems weakened from other diseases, it can be

fatal. Ibid.

Contaminated eggs pose a particularly significant

risk of causing salmonella in people. In theory, proper

handling and cooking of eggs can prevent disease.

In practice, that does not always happen. Some peo-

ple continue to use raw eggs in caesar salads, hol-

landaise sauce, and other dishes that are prepared in

ways that will not kill the bacteria. In other in-

stances, the eggs are simply mishandled, improperly

stored, or inadequately cooked. Pet. App. 2a.

The health risks are compounded in nursing homes,

cafeterias, hotel kitchens, -restaurants, and other

places where food is prepared in large quantities. In

these institutional settings, many eggs may be pooled

together. As salmonella multiplies rapidly, the bac-

teria from a single infected egg can contaminate the

entire dish. Pet. App. 2a. Thus, in a very literal

sense, it takes only one bad egg to make hundreds of

people seriously ill.

In recent years, there has been a sharp increase in

the incidence of salmonella food poisoning. Scientific

studies indicate that the increase may be linked to

the development of an unusually invasive strain of

salmonella that may be causing chickens to lay eggs

that are contaminated with salmonella before the

eggs shell is even formed. Pet. App. 2a. Such infec-

tions pose substantial risks for public health and the

poultry industry. If chickens are laying eggs that

are contaminated with salmonella before the shell is

even formed, more contaminated eggs will enter the

marketplace and more people will be placed at risk of

contracting salmonella. And if a more invasive strain

of salmonella is responsible for the upswing in sal-

monella outbreaks, then the spread of the bacteria

from one poultry flock to another would multiply

economic losses for the entire poultry industry.

2. Several overlapping statutory provisions vest

the Secretary of Agriculture with broad authority to

combat communicable diseases of livestock and poul-

try. The Secretary has the authority to ‘make such

regulations and take such measures as he may deem

proper to prevent the introduction or dissemination

of the contagion of any contagious, infectious, or

communicable disease of animals and/or live poultry.”

21 U.S.C. 111. He is similarly authorized to “control

and eradicate any communicable diseases of livestock

or poultry.” 21 U.S.C. 114a; see also 21 U.S.C. 120,

123, 134a.

On February 16, 1990, the Secretary invoked these

remedial powers and determined that emergency reg-

ulatory measures were necessary to identify chicken

flocks infected with salmonella and to control the

spread of the disease. 55 Fed. Reg. 5576 (1990). The

Secretary noted that salmonella infection was preva-

lent among northeastern and mid-Atlantic flocks, and

spreading to other flocks in midwestern and north-

western states. 55 Fed. Reg. 5580 (1990). Citing

public concerns about egg safety and the growing

number of salmonella outbreaks in people, the Secre-

tary stated that immediate regulatory action was

necessary to prevent harm to the poultry industry

and the public. /bid. He accordingly published in-

terim regulations, effective immediately and in ad-

vance of public comment, to identify infected flocks

and to control the spread of the disease to poultry

and people.’

The regulations establish a three-step process for

determining whether chicken flocks pose a risk of

spreading salmonella infection. State and federal in-

vestigators first determine whether eggs are the prob-

able cause of a reported outbreak of salmonella in

humans. If eggs are implicated in the outbreak, they

are then traced back through the chain of distribu-

tion to the laying flock. That flock is designated a

“study flock.”” 56 Fed. Reg. 3740 (1991).

Investigators then test for salmonella in the study

flock’s environment by analyzing samples from the

manure and egg transport machinery of each poul-

try house within the flock. If salmonella are recovered

from the samples, the flock is designated a “test”

flock and subjected to additional testing. Eggs, chick-

ens, and articles associated with the production proc-

ess (such as feed and chicken coops) may not be

freely shipped in interstate commerce while this addi-

tional testing takes place. However, eggs subject to

these restrictions may move in interstate commerce

1 After a subsequent notice and comment period, the Secre-

tary promulgated final regulations on January 30, 1991. See

56 Fed. Reg. 3730 (1991), codified at 9 C.F.R. 82.30-82.38.

)

if destined for pasteurization, hard boiling, or for-

eign export. 56 Fed. Reg. 5740-3741 (1991).

In the final stage of the testing process, blood and

internal organs are taken from a sample of chickens

within the “test” flock and analyzed for the presence

vf salmonella. If the saimonella analysis of blood

and internal organ samples is negative on two suc-

cessive occasions, the affected flock or poultry house

is released from further restrictions. If the tests are

positive for salmonella, however, then the flock or

house is designated as “infected.” The restrictions on

interstate commerce will then remain in effect until

the houses have been depopulated, cleaned, washed,

and disinfected in accordance with federal guidelines

or until further testing indicates salmonella are not

present in organ samples. To guard against reinfec-

tion, a house or flock that is released from infected

status remains subject to further testing for a period

of 18 months, unless the egg producer is participat-

ing in a voluntary program of salmonella control that

has been approved by the Secretary. 57 Fed. Reg.

776, 779 (1992).

3. The Secretary has statutory authority to pro-

vide monetary compensation to livestock and poultry

producers who incur economic losses as a result of

regulatory actions undertaken to prevent the spread

of communicable diseases. Section 114a of Title 21

provides that the Secretary’s power to control and

eradicate communicable diseases of poultry includes

authority for “the payment of claims growing out

of destruction of animals (including poultry), and

of materials, affected by or exposed to any such

disease, in accordance with such regulations as the

Secretary may prescribe.” Similarly, Section 134a(d)

of Title 21 provides that, with exceptions not rele-

vant here:

the Secretary shall compensate the owner of any

animal, carcass, product, or article destroyed

pursuant to the provisions of this section [7.e.

21 U.S.C. 134a]. Such compensation shall be

based upon the fair market value as determined

by the Secretary, of any such animal, carcass,

product, or article at the time of the destruction

thereof.

The Secretary concluded that neither provision

warranted payment of compensation to producers

whose eggs and chickens were subject to restrictions

under the salmonella regulations. 56 Fed. Reg. 3731

(1991). The Secretary noted that the applicable

statutes require payment of compensation if the

government orders des/ruction of animals or animal

products. Jbid. He also noted that the statutes and

regulations in some cases permit compensation if

owners voluntarily destroy animals or animal prod-

ucts to further a regulatory program aimed at limit-

ing communicable diseases. /bid. The Secretary de-

termined, however, that destruction of chickens was

not necessary to further the goals of the salmonella

program, /bid. He explained that salmonella bacteria

could not be eradicated by destroying affected chicken

populations, principally because the bacterial agent

is not host specific, but is, instead, found in many

other species throughout the environment. /bid.

Accordingly, the salmonella program did not seek to

eradicate the disease, but was instead intended only

to control the spread of salmonella in egg-type breed-

ing and production flocks—a goal that in the Secre-

tary’s judgment could be furthered through actions

short of ordering destruction of the affected flocks.

In addition, the Secretary explained that indemnity

payments were reserved for instances in which the

nature of the disease or the federal regulatory action

causes severe and widespread economic impact on the

affected agricultural industry. 56 Fed. Reg. 3731

(1991). The Secretary determined that such cireum-

stances were not present here because: (1) the dis-

ease does not cause severe mortality or reductions in

productivity in affected flocks; and (2) the regulatory

scheme mitigated the economic impact on producers

by permitting restricted eggs to be sold in other

markets and by limiting the restrictions to separate,

individual poultry houses within the larger flock.

Ibid.

4. Enforcement of these regulations linked peti-

titioner’s chicken farms to three outbreaks of salmo-

nella poisoning. In Chicago, 400 otherwise healthy

adults contracted salmonella while attending a con-

vention. More than 100 required hospitalization.

State and local health investigators concluded that

eggs from petitioner’s White County farm were the

probable source of the illness. Pet. App. 19a. Peti-

tioner’s eggs were also linked to a salmonella outbreak

that felled 42 wedding guests in Kentucky, and to a

third salmonella outbreak among two Tennessee

families. 7d. at 19a-20a. Poultry houses at three of

petitioner’s farms were eventually found infected

with salmonella, and a portion of petitioner’s pro-

duction was barred from the interstate table egg

market. /d. at 18a-20a.

On December 28, 1990, petitioner filed a complaint

in district court for a preliminary injunction and

for a declaratory judgment invalidating the regula-

tory scheme. The district court, after consolidating

the preliminary injunction hearing with a trial on

the merits, held that the regulations are legally de-

fective because they deny egg producers compensa-

tion for economic losses. Pet. App. 48a. The court

first rejected respondents’ contentions that the Claims

Court has exclusive jurisdiction over petitioner’s

claims that the statute and the Fifth Amendment

require monetary compensation for economic losses

caused by the regulatory scheme. /d. at 38a-39a. The

court acknowledged that petitioner provided evidence

of losses of $50,000 per day and that claims for such

compensation could be brought only in the Claims

Court. Jd. at 38a, The court reasoned, however, that

the complaint did not in fact seek money damages but

only demanded a declaratory judgment to the effect

that compensation would be required under the ap-

plicable statutes and the Takings Clause of the Fifth

Amendment. /d. at 38a-39a. The court therefore

assumed equitable jurisdiction.

On the merits, the district court held that 21 U.S.C.

114a and 134a both require payment of compensation.

The court reasoned that the regulations effect a con-

demnation of restricted eggs and chickens by destroy-

ing their economic value—a result that, in the district

court’s view, was tantamount to the destruction of

the chickens and eggs, and that therefore triggers

a statutory obligation to provide compensation for

government-ordered destruction of animals and ani-

mal products. Pet. App. 44a-46a. In addition, the

court reasoned that the administrative record and

trial testimony indicate that the salmonella regula-

tions could have a severe effect upon the poultry

industry, and that the Secretary’s decision not to

provide compensation in light of such economic in-

juries was arbitrary and capricious. /bid. The court

concluded that, in the absence of a provision for

indemnification, the regulations violate applicable

statutes and the Fifth Amendment. 7d. at 46a. It

also found that that the Secretary might not have

established the entire regulatory scheme if obligated

to provide compensation. Jd. at 45a. Consequently,

the court found that a defect in the indemnification

provisions of the regulation would be fatal to the

entire regulatory scheme. On that basis, the district

court declared the entire regulatory scheme invalid

and barred the Secretary from imposing any restric-

tions on Rose Acre’s shipment of eggs from flocks

that have previously been linked to salmonella poison-

ing of humans. /d. at 46a, 48a-49a.

5. The court of appeals reversed. Pet. App. la-

14a. It held that the district court, in invalidating

the regulatory scheme for failure to provide com-

pensation, had imposed a remedy that did not fit the

alleged violation. The court reasoned that, if perti-

nent statutes or the Constitution in fact require com-

pensation, then the appropriate remedy is to order

compensation paid—relief that in this case could only

be afforded by the Claims Court. /d. at 5a-8a.° The

court thus held that petitioner had brought its claims

concerning an asserted right to compensation in the

wrong forum. /d. at 8a. The court therefore did not

reach the merits of petitioner’s claims that the perti-

nent statutes and the Takings Clause required pay-

ment of compensation for damages caused by the

salmonella regulations. Jd. at 6a, 14a.*

“The court of appeals recognized that, under 28 U.S.C.

1346(a), district courts do have jurisdiction to award less

than $10,000 against the United States. Pet. App. 5a. It

indicated, however, that petitioner’s claims would exceed that

amount and thus could be entertained only by the Claims

Court. Jbid.

3The court of appeals also held that the Secretary has

authority to regulate animal diseases that pose a greater

health risk to humans than to the animals themselves; that

ARGUMENT

1. Petitioner principally argues that the court of

appeals erred by usurping the Secretary’s discretion

to evaluate the costs and benefits of the regulatory

scheme, Pet. 12-16, and by misapplying the law on

whether an invalid regulatory provision may be

severed from other provisions of the challenged regu-

latory scheme, Pet. 16-20. Petitioner thus asserts

that, since the current regulatory scheme was adopted

on the assumption that compensation would not be

paid to regulated producers, a reviewing court, on

determining that compensation should be paid, must

set aside the entire regulatory scheme in order to

ensure that the Secretary retains the authority to

make congressionally delegated policy and regulatory

determinations.

Those arguments rest on a fundamental misunder-

standing of the holding below and focus on issues that

are neither ripe for review nor fairly implicated by

the court of appeals’ decision. The court of appeals

ruled that petitioner’s claimed entitlement to mone-

tary compensation could be entertained only by the

Claims Court. Pet. App. 8a. The court of appeals

therefore explicitly declined to decide whether the

pertinent laws or the Takings Clause require com-

pensation. Jd. at 6a, 14a. It is therefore odd for

petitioner to claim that the decision below improperly

divests the Secretary of authority to determine

whether the salmonella regulations should remain in

force if the government must pay compensation, since

the Secretary’s regulations set forth a rational means of

addressing the health risks posed by eggs contaminated with

salmonella; and that the regulations requiring environmental

monitoring of poultry houses located on the same premises

as an infected house are lawful. Pet. App. 8a-13a. Petitioner

has not challenged those rulings in this Court.

(eee

the court of appeals did not rule that compensation

is necessary, and its holding precludes the district

court from even entertaining the question in the cir-

cumstances of this case.

The court of appeals did state in a brief dictum

that if compensation were deemed required it would

be “inappropriate to halt the regulatory program.”

Pet. App. 7a. But as no court has in fact made such

a determination, issues concerning whether the court

must invalidate the entire regulatory scheme or in-

stead sever the “no compensation” administrative

determination are not ripe for review. Consequently,

the principal issues raised by the petition for a writ

of certiorari are not implicated by the holding below

and do not merit review by this Court.‘

* While the issue is not presented by the holding below, we

note that the court of appeals was correct in stating that it

would be inappropriate to invalidate the entire regulatory

scheme if the statutes or the Constitution were found to

require compensation. This Court has held that “[o]nce a

court determines that a taking has occurred, the government

retains the whole range of options already available—amend-

ment of the regulation, withdrawal of the invalidated regula-

tion, or exercise of eminent domain.” First Lutheran Church

v. Los Angeles County, 482 U.S. 304, 321 (1987). Thus, the

court of appeals was correct in suggesting that a determina-

tion that the Constitution requires compensation would not

afford any basis for invalidating the entire regulatory scheme.

Principles governing the severability of regulatory provi-

sions direct the same result with respect to petitioner’s claim

that the salmonella regulations misconstrue statutory provi-

sions governing compensation. Regulations should ordinarily

be treated as severable unless: (1) there are affirmative indi-

cations of a contrary intent; or (2) severing the defective

provision would impair the functioning of the underlying

statute. K Mart Corp. v. Cartier Inc., 486 U.S. 281, 294

(1988). Contrary to petiticner’s contentions, the administra-

tive record does not demonstrate that the Secretary would not

2. The ruling below that petitioner’s compensation

elaims may be entertained only by the Claims Court

is consistent with Bowen v. Ilassachusetts, 487 U.S.

879 (1988). In Bowen, the Court made clear that,

under 5 U.S.C. 704, the existence of a Tucker Act

monetary remedy would, for certain claims, oust the

district courts of the equitable review powers that are

otherwise conferred by the Administrative Procedure

Aet (APA). The APA generally provides for review

of ageney action made reviewable by statute and for

review of final ageney action for which there is no

adequate remedy at law. See Abbott Laboratories vy.

Gardver, 387 US. 136, 140 (1967). To that end, the

APA specifically waives the United States’ sovereign

immunity from suits for equitable relief by providing

that:

An action in a court of the United States seek-

ing relief other than money damages and stating

a claim that an agency or an officer or employee

thereof acted or failed to act in an official capacity

or under color of legal authority shall not be

dismissed * * * on the ground that it is against

the United States [5 U.S.C. 702].

The APA, however, by its terms applies only where

“there is no other adequate remedy in a court.” 5

U.S.C. 704.

In Power, the Court held that 5 U.S.C. 704 excludes

from APA review claims based on money mandating

have undertaken this regulatory program if the government

were required to compensate egg producers for economic loss.

And even if a reviewing court were to conclude that compen-

sation is required, the “no compensation” provision could be

severed from the regulation without intruding upon the Sec-

retary’s discretion to determine, for subsequent cases, whether

the regulations should remain in force.

provisions that: (1) fall within the Claims Court’s

Tucker Act jurisdiction; (2) “provide compensation

for specific instances of past injuries or labors’: and

(3) establish rights that can be fully redressed with-

out resort to the type of injunctive and declaratory

powers that have been withheld from the Claims

Court, but that are generally vested in a district

court. 487 U.S. at 900-901 n.31. The Court concluded

that for such claims, “suits under the Tucker Act in

the Claims Court offer precisely the sort of ‘special

and adequate review procedures’ that [APA] § 704

requires to direct litigation away from the district

courts.” [hid, .

The compensation claims pressed by petitioner fall

squarely within this category, for several reasons.

First, the Tucker Act confers jurisdiction over peti-

tioner’s statutory and constitutional claims for com-

pensation. Similar claims have been routinely ad-

judicated by the Claims Court and its predecessor, the

Court of Claims. See, e.g., Julius Goldman’s Eqg City

v. United States, 697 F.2d 1051 (Fed. Cir. 19&3) ;

Loftin y. United States, 6 Cl. Ct. 596 (1984), aff'd,

765 F.2d 1117 (Fed. Cir. 1985). Second, the provi-

sions of law on which petitioner relies—the Takings

Clause and 21 U.S.C. 134a(d)—provide a right to

indemnification for a specific past injury: monetary

loss resulting from the destruction of animals or re-

lated products pursuant to an order issued under the

Secretary’s regulatory authority to control eommuni-

cable diseases. They are money-mandating provisions

that authorize compensatory relief for past injuries—

precisely the type of laws identified in Bowen as fall-

ing within 5 U.S.C. 704. See 487 U.S. at 900-901

n.31, 905-906 n.42.

Third, a monetary remedy in the Claims Court is

sufficient to afford complete redress for the compensa-

tion rights conferred by the Constitution and the laws.

Bowen suggests that, in some circumstances, the need

for prospective relief governing the relationship be-

tween the federal government and other parties would

render the Claims Court remedy inadequate. 487

U.S. at 905. But the Claims Court could provide an

adequate remedy for all petitioner’s claims for com-

pensation. The Claims Court, for example, can supply

a fully adequate remedy for petitioner’s Takings

Clause claim. In faet, this Court has held that equita-

ble relief is not available where a suit for compensa-

tion ean be brought against the government, Ruckels-

haus v. Monsanto, 467 U.S. 986 (1984), and a eom-

pensation remedy under the Tucker Act for a taking

is presumed to be available unless there are unambigu-

ous indieations to the contrary, Preseault v. ICC, 494

U.S. 1 (1990). Accordingly, an award of compensa-

tion by the Claims Court for petitioner’s takings

claim is not just an “tadequate”’ remedy, it is the onlv

remedy made available by Congress.

The Claims Court could also provide a fully ade-

quate remedy for petitioner’s statutory compensation

claims. In many respects a money judgment from the

Claims Court affords a superior remedy to the declar-

atory relief sought by petitioner. The Claims Court

has long experience and special expertise in valuing

money claims against the government, and it can

enter a money judgment disposing of the entire case.

A declaratory judgment, in contrast, leaves the criti-

cal question of the amount of compensation actually

due unresolved, thereby raising the possibility that

complete resolution of petitioner’s claims would not be

achieved until it exhausts a second, duplicative round

of judicial review.°

5 Petitioner has in fact filed a complaint in the Claims Court

seeking an award of compensation for losses allegedly in-

3. The decision below does not conflict. with the

cases cited by petitioner. Neither case involved the

laws or programs at issue here; nor do they reflect

any disagreement about the proper application of the

jurisdictional principles set forth in Bowen v. Mas-

sachusetts,

Mesch vy. Yeutter, 876 F.2d 976 (D.C. Cir. 1989),

involved the Secretary of Agriculture’s decision par-

tially to suspend a farmer’s participation in a. farm

subsidy program. The court held that suit challenging

the suspension could be brought in district court. The

court found that plaintiff’s claim was not predicated

on a statute mandating monetary compensation for

past injuries and also did not clearly fall within the

Claims Court’s jurisdiction. Jd. at 984-985. Thus,

unlike this case, Esch involved claims that could not

be adequately redressed under the Tucker Act. Zellous

v. Broadhead Associates, 906 F.2d 94 (3d Cir. 1990),

is distinguishable for similar reasons. There, the court

of appeals held that a claim for money assertedly

due under a federal housing assistance program could

not be characterized as a claim for monetary damages,

Id. at 96-100. The court held that, although the claim

sought an order directing the United States to pay out

money, district court review under 5 U.S.C. 702 was

not foreclosed by the requirement of 5 U.S.C. 704 that

there be ‘no other adequate remedy in a court.” 906

F.2d at 99.

4. Petitioner repeatedly asserts, without explana-

tion or supporting argument, that the regulatory de-

cision against paying compensation is erroneous and

unlawful and renders the regulations invalid in their

curred under the salmonella regulations. Rose Acre Farms,

Inc. Vv. United States, No. 92-335 C (Cl. Ct.) (filed May 8,

1992).

aceite ae

entirety. Pet. i, 10, 13, 16. As explained above, the

court of appeals correctly determined that this claim

must be raised in the Claims Court and accordingly

did not reach the issue. In any event, petitioner’s

claim lacks merit.

Petitioner’s assertion, Pet. 11-12, 15, that the See-

retary has a statutory duty to compensate producers

who are adversely affected by the salmonella control

program is flawed at every turn. First, petitioner

errs in asserting that 21 U.S.C. 134a affords the only

statutory authority for imposing restrictions on the

shipment of eggs or chickens that carry an infectious

disease. Congress, in 21 U.S.C. 111, 114a, and 120,

has provided the Secretary independent authority to

control and eradicate communicable diseases of poul-

try without regard to the adequacy of state disease

control measures and without ordering the physical

destruction of animals and animal products.

Second, the administrative record shows that the

Secretary had ample basis for imposing regulatory re-

strictions that stopped short of ordering the actual

physical destruction of infected eggs and chickens.

Petitioner implies that the Secretary irrationally de-

clined to direct the destruction of infected chickens

in order to avoid the mandatory compensation pro-

visions of 21 U.S.C. 134a(d). The Secretary, how-

ever, expressly determined that: (1) restrictions on

interstate shipments of potentially infected eggs and

chickens were adequate to prevent the spread of dis-

ease; (2) a program of mandatory destruction would

not provide significant additional protection in light

of the prevalence of salmonella in the environment

and the mode of disease transmission; and (3) the

economic impact on the industry would be ameliorated

by the availability of alternative markets, the rela-

tively limited scope of the regulatory restrictions, and

increased consumer confidence. 56 Fed. Reg, 373]

(1991). The salmonella regulations thus reflect a

reasoned choicetot regulatory alternatives that is well

within the Secretary’s discretion.

Finally, regulatory restrictions that permit egg

production to be sold for pasteurization, hard-boiling,

or foreign export do not “destroy” chickens and eggs

or otherwise give rise to a right to compensation un-

der the pertinent statutes. The indemnification pro-

visions at issue, 21 U.S.C. 1148 and 134a(d), ex-

plicitly make indemnification contingent on the actual

“destruction” of animals or animal products. The

ordinary meaning of the term generally is “to ruin

completely” or “[t]o ruin the structure, organic ex-

istence or condition of a thing: to demolish; to in-

jure or mutilate beyond possibility of use.” Black’s

Law Dictionary 449 (6th ed. 1990): see also Weh-

ster’s Third New International Dictionary 615

(1986). If, as petitioner implies, Congress had in-

tended to make producers whole for any economic loss

incurred in a disease control program, Congress would

have said so expressly. The plain text of the statutes.

however, authorizes compensation in far narrower

circumstances that do not apply to this case.’

°In passing, petitioner claims that the regulations violate

the Fifth Amendment. Pet. i, 13 n.10. That claim does not

warrant reivew by this Court. As an initial matter, peti-

tioner has not adequately preserved that claim. The Ques-

tions Presented do not ask the Court to review such a claim;

the petition does not discuss or even make reference to any

of this Court’s Takings Clause cases; and the assertion that

the Constitution requires compensation is unsupported by

argument or legal explanation. The court of appeals also did

not address that claim, and this Court should not do so in the

first instance.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.