907 WHITEHEAD STREET, INC., d.b.a. Ernest Hemingway Home and Museum v. SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE, DR. CHESTER A. GIPSON, Deputy Administrator of Animal Care for the Animal and Plant Health Inspection Services, United States Department of Agriculture
No. 11-14217
United States Court of Appeals, Eleventh Circuit
December 7, 2012
[PUBLISH] D. C. Docket No. 4:09-cv-10050-JEM
(December 7, 2012)
Before DUBINA, Chief Judge, PRYOR and HILL, Circuit Judges.
DUBINA, Chief Judge:
I.
Ernest Hemingway lived at 907 Whitehead Street in Key West, Florida, from 1931 to 1938. During that time, Hemingway‘s friend, Captain Stanley Dexter, gave Hemingway a polydactyl cat named Snowball.1 Since Hemingway‘s time at 907 Whitehead Street, Snowball‘s polydactyl progeny (the “Hemingway cats“) have thrived and populated the property. In 1961, Bernice Dixon (“Dixon“) purchased 907 Whitehead Street from Hemingway‘s estate. The Hemingway cats
The Museum has always kept, fed, and provided weekly veterinary care for the Hemingway cats. The cats live and roam freely on the grounds that are enclosed by a brick fence at the property‘s perimeter. To prevent population beyond the historical norm of 50–60 cats, the majority of the cats are spayed or neutered so that only a couple of cats of each sex are reproductive. At the time of the district court‘s bench trial, the Museum had 44 Hemingway cats.
No Hemingway cat has ever been bought or sold, although some cats have been given away at various times.2 However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats. Approximately 250,000 visitors from within and beyond Florida visit the Museum annually. The Museum‘s gift shop sells cat-related merchandise online and at its physical location. The Museum‘s website offers a secondary page
At some point several years ago, a Museum visitor complained to the USDA about the Museum‘s care of the cats.3 USDA inspectors responded by visiting and corresponding with the Museum. In October 2003, Dr. Elizabeth Goldentyer, a USDA regional director for animal care, determined that the Museum was an animal exhibitor subject to USDA regulation under the AWA because (1) the Museum exhibited the cats for the cost of an admission fee, and (2) the cats were used in promotional advertising. Two USDA policy manuals supporting Goldentyer‘s conclusion, Animal Care Resource Inspector Guide and Licensing and Registration Under the Animal Welfare Act, define exhibited animals as animals that are displayed for some form of compensation.
From the outset of the USDA‘s intervention, the Museum has resisted the federal government‘s attempts to interfere with the Museum‘s care for the Hemingway cats. The Museum protests the USDA officials’ alleged demands that
The Museum filed the instant complaint in October 2009 against the Secretary of Agriculture and Dr. Gipson, requesting a declaratory judgment that: (1) the Museum is not an “exhibitor” under the AWA and is not under the USDA‘s animal care jurisdiction; (2) the Hemingway cats do not have an effect on interstate commerce sufficient to subject the Museum to AWA regulation; (3) Congress passed the AWA only to protect animals physically moving in interstate
II.
Following a bench trial, we review the district court‘s findings of fact for clear error and its conclusions of law de novo. Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008). We also review de novo the interpretation and application of a statute. Dawson v. Scott, 50 F.3d 884, 886 (11th Cir. 1995). When a statute is silent or ambiguous, we afford deference to an administrative agency‘s interpretation of the statute as long as it is reasonable and not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 886–87 (internal quotation marks omitted).
III.
The Museum argues that it is not an “exhibitor” of animals as defined in the AWA and, even if it is, the AWA is unconstitutional as applied to the Museum and its Hemingway cats. Consistent with the principle that “a federal court should refuse to decide a constitutional issue unless a constitutional decision is strictly
The AWA somewhat obscurely defines an “exhibitor” 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.”
Because most animal-related exhibitions contain animals that have been purchased and transported in commerce, very few courts have been presented with an occasion to interpret the AWA‘s use of the term “distribution.” The Museum points out dicta in Haviland v. Butz where the D.C. Circuit stated that the term “distribution” is synonymous with “transportation.” 543 F.2d 169, 173 n.22 (D.C. Cir. 1976) (upholding applicability of the AWA to a traveling, interstate dog-and-pony show). Of course, this comment is advantageous to the Museum because the Hemingway cats have never been transported anywhere.
The Secretary‘s reasonable and consistent interpretation of “exhibitor” as articulated in Good is entitled to Chevron deference. See Dawson, 50 F.3d at 886–87. Pursuant to Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984), a court must first “give effect to the unambiguously expressed intent of Congress.” Id. at 842–43, 104 S. Ct. at 2781. But when “the statute is silent or ambiguous with respect to the specific issue,” and an administrating agency has interpreted the statute, courts are bound to show deference to the agency‘s reasonable interpretation, so long as it is not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 843–44, 104 S. Ct. at 2782. The statute is ambiguous on the question whether “distribution” includes the display of animals by a fixed-site commercial enterprise. And, given Congress‘s
Based on this reasonable interpretation to which we accord deference, the district court correctly found that the Museum qualifies as an animal exhibitor under the AWA. Without explicitly acknowledging the most obvious means of exhibiting the Hemingway cats (i.e., displaying them to the public for compensation), the district court found that the animals were “distributed” in these two ways: (1) when Dixon, and later, Morawski, gave cats away, and (2) when the Museum broadcasted images of the Hemingway cats online and used them to attract visitors through promotional advertising materials. [See R. 74 at 10–11, ¶¶ 39, 42.] Perhaps because of the district court‘s conclusions on the promotional advertising, the Museum focuses all of its energy in this appeal toward convincing us that the application of the AWA cannot be based merely upon the Museum‘s use of the cats’ images in promotional media. The Museum posits that, without any “distribution” via promotional photographic or video advertising featuring the Hemingway cats, the Museum would no longer be subject to the AWA. The
We must now address whether the regulation of the Museum and its Hemingway cats exceeds Congress‘s authority under its power “[t]o regulate Commerce . . . among the several States.”
We conclude that the Museum‘s exhibition of the cats substantially affects interstate commerce. The Museum argues that its activities are of a purely local nature because the Hemingway cats spend their entire lives at the Museum—the
IV.
Notwithstanding our holding, we appreciate the Museum‘s somewhat unique situation, and we sympathize with its frustration. Nevertheless, it is not the court‘s role to evaluate the wisdom of federal regulations implemented according to the powers constitutionally vested in Congress. See Sebelius, ___ U.S. at ___, 132 S. Ct. at 2600. Therefore, we affirm the judgment of the district court in favor of the USDA.
AFFIRMED.