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03/23/76 Hal Haviland, v. Earl L. Butz


March 23, 1976





Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 474-73).


Leventhal and Robinson, Circuit Judges, and Jack R. Miller,* Judge, United States Court of Customs and Patent Appeals.


Hal Haviland owns and operates a professional animal act in which dogs and ponies are featured. *fn1 The act is presented to paying audiences in a number of states *fn2 and has occasionally appeared on commercial television. *fn3 In the view that Haviland was an "exhibitor" as defined by the Animal Welfare Act of 1970, *fn4 the Department of Agriculture gave notice that he was in violation of its licensing provisions *fn5 and that proceedings might be instituted to compel compliance. *fn6

To avoid the risk of possible penalties, *fn7 Haviland obtained an exhibitor's license. *fn8 He then brought suit in the District Court against the Secretary of Agriculture for a judgment declaring that he was not subject to regulation under the Act. *fn9 The court granted summary judgment in favor of the Secretary *fn10 and Haviland now appeals.

Reversal is urged on several grounds. Haviland asserts that the Act, properly construed, does not extend to his dog and pony show, and that inclusion of animal acts in the Secretary's implementing regulations is an unconstitutional usurpation of legislative power. *fn11 He further contends that the Act exceeds congressional power under the Commerce Clause *fn12 and discriminates invidiously in contravention of the Fifth Amendment's Due Process Clause. *fn13 We affirm. I

In 1966, Congress enacted the Federal Laboratory Animal Welfare Act *fn14 "to deal with the abuses that have developed as a result of the Nation's vast program of medical research," *fn15 particularly research involving experimentation with animals. *fn16 The Animal Welfare Act of 1970 expanded the coverage of the 1966 statute to enlarge the class of protected animals and to regulate their use for exhibition purposes or as pets as well as their use for research purposes. *fn17

The Secretary claims that Haviland is subject to the Animal Welfare Act as an "exhibitor," defined by the Act as

any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country [sic] fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary. *fn18 The Secretary's regulations augment the statutory definition by inserting the words "animal acts" between "circuses" and "zoos." *fn19

Haviland contends that this addition is unauthorized -- that the Act, as written and intended, does not embrace animal performances -- and that the Secretary could not expand its coverage. *fn20 We think, however, that exhibitions utilizing animals to which the Act extends its protections *fn21 were fairly comprehended among its objects. *fn22 The Act itself declares that one of its goals is "to insure that certain animals intended for use . . . for exhibition purposes . . . are provided humane care and treatment. . . ." *fn23 The statutory specification is that "the term 'exhibitor' . . . includes carnivals, circuses, and zoos exhibiting such animals," *fn24 and not that other essentially similar enterprises are excluded. In like vein, the accompanying report of the House Committee on Agriculture *fn25 states that a prime objective was to "bring into the regulatory framework of the Act for the first time exhibitors (such as circuses, zoos, carnivals and road shows) . . .." *fn26 The words "includes" and "such as" point convincingly to the conclusion that the listing of types of exhibitions in the statutory text was intended to be but partial and illustrative.

Moreover, courts are duty bound to follow "the construction of a statute by those charged with its execution . . . unless there are compelling indications that it is wrong." *fn27 This "deference . . . is heightened when," as here, "the case involves the construction of a new statute by its implementing agency." *fn28 We see nothing suggesting persuasively that the Secretary's interpretation of "exhibitor" is incorrect. Certainly we discern no difference between animal acts on the one hand and circuses and carnivals on the other that is significant enough to warrant an upset of the Secretary's construction as a departure from the intent of Congress. *fn29

We are thus constrained to reject Haviland's contention that the statutory listing of covered enterprises is exhaustive, and to sustain the Secretary's interpretative regulation. The Secretary is empowered "to promulgate such rules, regulations, and orders as he may deem necessary in order to effect the purposes of" the statutory scheme. *fn30 It has long been recognized that delegations of this kind are necessary to enable Congress to exert its legislative powers effectively. *fn31 We find nothing in this delegation to justify the extraordinary step of declaring it void. *fn32 We hold that Haviland is within the regulatory compass of the Act. II

We now address Haviland's constitutional contentions, first his argument that multistate presentations of his dog and pony show are not activity affecting interstate commerce, and for that reason are beyond the legislative authority conferred by the Commerce Clause. *fn33 Characterizing his animal performances as local exhibitions analogous to baseball games, Haviland relies primarily on three Supreme Court decisions *fn34 for the proposition that his productions, like professional baseball contests, are not appropriate subjects for federal regulation. This position does not withstand analysis of the precedents cited, nor does Haviland's claim of immunity for his own operation survive the impact of relevant decisions during the past generation. *fn35

In 1922, the Supreme Court held in Federal Baseball Club v. National League *fn36 that the business of staging baseball games, though in a multistate circuit, is not interstate commerce. *fn37 This view was adhered to in 1953 in Toolson v. New York Yankees, Inc.,38 "without re-examination of the underlying issues."39 In Flood v. Kuhn,40 decided in 1972, however, the Court denominated the rule of Federal Baseball and Toolson "an aberration confined to baseball."41 Despite the local quality of individual contests, professional baseball, the Court said, was indeed an interstate enterprise;42 only on grounds of stare decisis was there justification for the gross inconsistency of Federal Baseball and Toolson with orthodox doctrine defining the commerce power.43 Even more significantly, the Court stated specifically that virtually all other professional sports are to be treated as operations in interstate commerce and amenable to federal legislation.44

Our mandate is thus clear -- the principle enunciated in Federal Baseball and Toolson is not to be extended to other businesses. Moreover, that is the clear course of judicial decision.45 We hold that Haviland's animal act, traveling from state to state to render performances and sometimes even utilizing the facilities of interstate communication to reach its audiences,46 is subject to regulation by Congress in the exercise of the commerce power.47

Lastly, Haviland argues that the classification effected by the Act's definition of "exhibitor"48 infringes the equal protection guaranty of the Fifth Amendment's Due Process Clause.49 The term is to include "carnivals, circuses, and zoos" -- and, as we have held, animal acts -- but is to exclude "retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary."50 But notwithstanding the number and breadth of the exclusions, the "legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest."51 We believe that clearly it is.

Among the expressly articulated purposes of the Act, we repeat, is assurance that designated species of animals used in the types of exhibitions covered will receive humane care and treatment.52 The coverage clause of the definition of "exhibitor" directly implements this legislative objective. Haviland wisely does not contest the propriety of the definition overall; rather, he asserts that there is no rational basis for distinguishing some other kinds of exhibitions, particularly rodeos.53

In essence, Haviland's thesis is that Congress recognized a problem of inhumanity to animals but attacked only a part of it. He insists that the requirements imposed by the Act upon producers of animal acts and other performances, but not upon operators of rodeos and other enterprises, is unjustly discriminatory. We note initially that the fact "that a statute treats different persons contrastingly does not, without more, signify that equal protection is wanting,"54 and that neither "is the showing made by the additional circumstance that in actuality the law does not apply to all to whom it conceivably could."55 And we give heed to the Supreme Court's teaching that "[a] statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce."56 For "evils in the same field may be of different dimensions and proportions, requiring different remedies";57 "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind."58 "The legislature" thus, the Court informs, "may select one phase of one field and apply a remedy there, neglecting the others";59 in sum, the constitutional call for equality of treatment "does not require [a choice] between attacking every aspect of a problem or not attacking the problem at all."60

Haviland's equal protection contention flies in the face of these established principles. It is constitutionally unimportant that Congress has not seen fit to regulate all interstate transportation, purchasing or selling of animals in one fell swoop. As the evolution of the Animal Welfare Act manifests,61 Congress has chosen a cautious approach to regulation in this area, increasing governmental intervention as the national interest seemed to warrant. As the House Committee on Agriculture put it, the Animal Welfare Act "represents a continuing commitment by Congress to the ethic of kindness to dumb animals."62 From the small beginning in 1966 -- confined to a few animals, and only when they were devoted to research purposes -- the present legislation further, though still modestly, "[implements] a statutory mandate that small helpless creatures deserve the care and protection of a strong and enlightened public."63 We perceive nothing in the Constitution outlawing this commendable "effort to demonstrate America's humanity to lesser creatures."64

The judgment appealed from is





* Sitting by designation pursuant to 28 U.S.C. ยง 293(a) (1970).

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