Association des Eleveurs de Canards et d'Oies du Quebec, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hots Restaurant Group. Inc., a California corporation, Plaintiffs-Appellants,
Kamala D. Harris, Attorney General; Edmund G. Brown, in his official capacity as Governor of California; the State of California, Defendants-Appellees. and Gauge Outfitters, Inc., Plaintiff,
Argued and Submitted May 8, 2013—Pasadena, California
Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding D.C. No. 2:12-cv-05735-SVW-RZ
Michael Tenenbaum (argued), The Tenenbaum Law Firm, Santa Monica, California, for Plaintiffs-Appellants.
Stephanie F. Zook (argued), Deputy Attorney General; Constance L. LeLouis, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, Sacramento, California, for Defendants-Appellees.
Melissa Grant, (argued) and Arnab Banerjee, Capstone Law APC, Los Angeles, California; Tiffany Hedgpeth, Jeremy Esterkin, and Bryce Woolley, Bingham McCutchen LLP, Los Angeles, California, for Amici Curiae.
Before: Harry Pregerson and Raymond C. Fisher, Circuit Judges, and Wiley Y. Daniel, Senior District Judge.[*]
The panel affirmed the district court's denial of a motion to preliminarily enjoin the State of California from enforcing California Health & Safety Code § 25982, which bans the sale of products that are the result of force feeding birds to enlarge their livers beyond normal size.
The panel affirmed the district court's denial of Eleventh Amendment immunity to the Attorney General. The panel dismissed the State of California and Governor Brown from the lawsuit because they were immune from suit.
The panel held that the only product covered by § 25982 at issue in this appeal was foie gras, a delicacy made from fattened duck liver. The panel held that the district court did not abuse its discretion when it concluded that plaintiffs failed to raise serious questions concerning their Due Process Clause challenge, which alleged that the statute's definition of force feeding was vague and failed to give persons fair notice of what conduct was prohibited. The panel further held that the district court did not abuse its discretion when it concluded that § 25982 did not discriminate against interstate commerce or directly regulate interstate commerce.
PREGERSON, Circuit Judge:
Plaintiffs produce and sell foie gras, a delicacy made from fattened duck liver. To produce their foie gras, Plaintiffs feed their ducks through a tube inserted directly in the ducks' esophagi. In July 2012, California Health & Safety Code § 25982 came into effect. The statute bans the sale of products that are the result of force feeding birds to enlarge their livers beyond normal size. We are called upon to review the district court's denial of Plaintiffs' motion to preliminarily enjoin the State from enforcing § 25982. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
Appellants Association des Éleveurs de Canards et d'Oies due Québec (the "Canadian Farmers") and HVFG LLC ("Hudson Valley") are non-California entities that raise ducks for slaughter and are producers and sellers of foie gras. Appellant Hot's Restaurant Group, Inc. ("Hot's Kitchen") is a restaurant in California that sold foie gras before § 25982 came into effect (collectively, "Plaintiffs").
Hudson Valley and the Canadian Farmers raise Moulard ducks. Moulard ducks are a hybrid of Muscovy male ducks and Pekin female ducks. They are bred for their capacity of ingestion and fat storage in their livers. In addition to foie gras, Hudson Valley and the Canadian Farmers produce and sell breasts, legs, fat, bones, offal, and feathers from their Moulard ducks.
Generally, Moulard ducks are raised for foie gras through the following process. The Canadian Farmers and Hudson Valley take one-day-old ducks from the hatchery to breeding farms. There, the ducks are raised until they are fully grown, a process that generally takes eleven to thirteen weeks. For the first four weeks of their lives, the ducks eat pellets from feeding pans that are available to them twenty-four hours a day. In the next stage, which lasts one to two months, the ducks eat different pellets from feeding pans that are available to them twenty-four hours a day. For the next two weeks, the ducks continue to eat pellets from feeding pans that are available to them at only certain times during the day. In the final stage, called gavage, which lasts between ten to thirteen days, the ducks are hand-fed by feeders who use "a tube to deliver the feed to the crop sac at the base of the duck's esophagus."
The statutory provision Plaintiffs seek to enjoin, § 25982, is within the statute entitled "Force Fed Birds." Cal. Health & Safety Code §§ 25980 et seq. Section 25982 states: "A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size." Id. § 25982. Section 25981 further provides: "A person may not force feed a bird for the purpose of enlarging the bird's liver beyond normal size, or hire another person to do so." Id. § 25981.
Sections 25981 and 25982 became operative on July 1, 2012. The California Legislature delayed the effective date of the statutes from January 1, 2005 to July 1, 2012 "to allow a seven and one-half year period for persons or entities engaged in agricultural practices that include raising and selling force fed birds to modify their business practices." Id. § 25984(c).
The day after § 25982 came into effect, Plaintiffs filed a lawsuit to enjoin Defendants-Appellees Attorney General Kamala Harris, Governor Edmund Brown, and the State of California (collectively, the "State") from enforcing the statute. Plaintiffs argue that § 25982 is unconstitutional because it violates the Due Process Clause and the Commerce Clause of the United States Constitution.
Plaintiffs applied ex parte for a temporary restraining order and an order to show cause why a preliminary injunction should not issue. The district court denied the motion. Plaintiffs then filed a motion for preliminary injunction. The district court denied the motion, and Plaintiffs timely appealed.
I. Eleventh Amendment Immunity
The district court determined that the Attorney General is not entitled to Eleventh Amendment immunity and did not address the State of California's or the Governor's immunity claims. We must resolve an Eleventh Amendment immunity claim before reaching the merits. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012). We review a denial of immunity de novo. Id.
"States are protected by the Eleventh Amendment from suits brought by citizens in federal court." Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812, 817, amended by, 271 F.3d 910 (9th Cir. 2001). Plaintiffs are plainly barred by the Eleventh Amendment from suing the State of California in federal court.
An exception under Ex Parte Young, 209 U.S. 123 (1908), however, allows citizens to sue state officers in their official capacities "for prospective declaratory or injunctive relief . . . for their alleged violations of federal law." Coal. to Defend Affirmative Action, 674 F.3d at 1134. The state official "'must have some connection with the enforcement of the act.'" Id. (quoting Ex parte Young, 209 U.S. at 157). That connection "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged ...