Dr. Ellеn Levine, Beverly Ulbrich, Krista Kielman, Gretchen Wallerich, Kanda Boykin, The Humane Society of the United States, East Bay Animal Advocates, Mississippi Poultry Workers for Equality and Respect, Western North Carolina Workers’ Center, John Doe I, and John Doe II (henceforth collectively “Levine”) appeal from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (“Secretary” or “USDA”). This case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactmеnt) term the “Humane Methods of Slaughter Act of 1958” (“HMSA of 1958”). 1 See 7 U.S.C. §§ 1901-07. In particular, the parties dispute whether poultry should *988 be considered “other livestock” as that phrase is used in that statute. Id. at § 1902(a). Levine challenged USDA’s enunciation of its position — made most recently on September 28, 2005, in a Federal Register Notice issued by USDA’s Food Safety and Inspection Service, see Treatment of Live Poultry before Slaughter, 70 Fed.Reg. 56,624 (Sept. 28, 2005) — that “there is no specific federal humane handling and slaughter statute for poultry.” Id. at 56,625.
In
Levine v. Conner,
1. BACKGROUND
A. Statutory Background
In 1958, Congress passed the HMSA of 1958. See Pub.L. No. 85-765, 72 Stat. 862 (1958) (codified as amended at 7 U.S.C. §§ 1901-07). That legislation mandated (and continues to mandate) that “the slaughtering of livestock and the handling of livestock in connection with slaughter shall be carried out only by humane methods.” 7 U.S.C. § 1901. It also authorized and directed the Secretary to designate “humane” methods of slaughter conforming “to the policy stated in this chapter” for “each species of livestock.” Id. at § 1904(b).
When enacted, section 1902 set forth “two methods of slaughtering and handling” as humane:
(a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut; or
(b) by slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain causеd by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument. [ 2 ]
Id. § 1902 (emphasis added). Congress provided an enforcement provision, but only in the form of generally prohibiting the federal government from purchasing livestock products where the animals were slaughtered by methods other than those designated and approved by the Secretary. See Pub.L. No. 85-765, 72 Stat. 862, 862-63 (codified at 7 U.S.C. § 1903 (repealed 1978)). 3 The following year, USDA pre *989 scribed humane slaughter methods for those species expressly identified in the statute in addition to goats. 4 See 24 Fed. Reg. 1549, 1551-53 (Mar. 3, 1959) (to be codified at 9 C.F.R. pt. 180).
The HMSA of 1958 did not define the terms “livestock” or “other livestock.” Cоngressional debate revealed views favoring both interpretations advanced here— one that would include chickens, turkeys and other domestic fowl within its expanse and one that would preclude such inclusiveness. See, e.g., 104 Cong. Rec. 1655, 1659 (1958). Numerous versions of the legislation were advanced, some specifically including the term “poultry” and some (including the one eventually adopted) which excluded use of that specific term. See, e.g., 104 Cong. Rec. 15,368 (1958); H.R. 3029, 85th Cong., Sec. (g)(2) (1957); H.R. 8308, 85th Cong. § 2 (1957). One provision (now repealed) of the HMSA of 1958 itself separately referred to “livestock growers” and the “poultry industry” in connection with the formation of an advisory committee designed to consult with the Secretary and USDA officials in the course of carrying out the mandates set forth elsewhere in the legislation. See Pub.L. No. 85-765, 72 Stat. 862, 863 (codified at 7 U.S.C. § 1905 (repealed 1978)). In addition, in the prior year, the same Congress had passed the Poultry Products Inspection Act (“PPIA”) (21 U.S.C. §§ 451-72) which, among other things, gave USDA authority to inspect poultry producers for compliance with health and sanitary requirements, required inspection of poultry after slaughter, established labeling requirements for poultry products, and allowed for withdrawal of inspections for noncompliance and the imposition of civil and criminal penalties for the sale of adulterated products. See 21 U.S.C. §§ 455-57, 461.
In 1978, in legislation also termed a “Humane Methods of Slaughter Act” (“HMSA of 1978”), Congress repealed (along with certain other sections) the only enforcement provision contained within the HMSA of 1958 (ie., the prohibition on federal government purchases of inhumanely slaughtered livestock products previously found in 7 U.S.C. § 1903), and, at the same time, incorporated humane slaughter provisions into the Federal Meat Inspection Act (“FMIA”) (21 U.S.C. §§ 601-95), which had originally been enacted in 1907.
See
Pub.L. No. 95-445, 92 Stat. 1069 (1978). Unlike the HMSA of 1958, however, the FMIA imposed inspection requirements only for “cattle, sheep, swine, goats, hоrses, mules, and other equines.”
Id.
§ 2,
In 2005, Congress deleted the specific list of animals from the FMIA and replaced it with the term “amenable species.” See Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006, Pub.L. No. 109-97, Title VII, § 798, 119 Stat. 2120 (2005). “Amenable species” was defined to include “those species subject to the provisions of this chapter on the day before Novеmber 10, 2005” as well as “any additional species of livestock that the Secretary considers appropriate.” 21 U.S.C. § 601(w). 5
B. History Of USDA’s Position
In the same month that Congress passed the HMSA of 1958, USDA itself gave some indication that it considered “[cjhicken eggs, commercial broilers, chickens, and turkeys” as “[ljivestock and livestock products.” See Changes in Farm Production and Efficiency, USDA Statistical Bulletin No. 233, at 4-5 & n. 5 (Aug.1958). In 1960, however, regulations were issued which defined “livestock products” for purposes of the HMSA of 1958 to mean any article intended for or capable of being used as food for either human or animals which is derived from slaughtered “cattle, calves, horses, mules, sheep, swine, or goats,” and specifying further thаt the term “do[es] not include ... poultry.” 25 Fed.Reg. 11152, 11152 (Nov. 23, 1960). USDA reiterated that position in 1979 in response to inquiries as to whether any humane slaughtering requirements covered chickens following the 1978 amendments. 6 See 44 Fed.Reg. 68,809, 68,811 (Nov. 30, 1979). On September 28, 2005, USDA’s Food Safety and Inspection Service issued a Federal Register Notice (“the Notice”) entitled “Treatment of Live Poultry Before Slaughter.” 70 Fed.Reg. 56,-624 (Sept. 28, 2005). The Notice indicated that it was in response to “considerable congressional and public interest in the humane treatment of animals, including poultry.” Id. In the Notice, the USDA announced that “[t]he HMSA of 1978 ... requires that humane methods be used for handling and slaughtering livestock but does not include comparable provisions concerning the handling and slaughter of poultry.” Id. at 56,624-25 (citation omitted). While it “reminded] all poultry slaughter establishments” that live poultry must be handled “in a manner that is consistent with good commercial practices, which means they should be treated humanely” and that compliance with the PPIA incidentally promoted humane slaughter, it also indicated that “there is no specific federal humane handling and slaughter statute for poultry.” Id. at 56,-625.
C. Procedural History
Levine filed suit on November 21, 2005, claiming that “inhumane methods” of poultry slaughter increased the risk of food- *991 borne illnesses to the plaintiff consumеrs and health and safety dangers plus “aesthetic injury” to the plaintiff poultry workers. In the operative Second Amended Complaint (“SAC”), Levine asserted that, in issuing the Notice, USDA had violated the HMSA of 1958, abused its discretion, and acted arbitrarily and capriciously in violation of the Administrative Procedure Act (“APA”). In the SAC’s “Request for Relief,” Levine sought an order: (1) “declaring USDA’s decision to exclude chickens, turkeys, and other poultry species from the protections provided by the Humane Methods of Slaughter Act of 1958 ... to be ... not in accordance with the HMSA of 1958 and the APA;” (2) “declaring unlawful and setting aside USDA’s September 28, 2005 Federal Register Notiсe containing the agency’s policy statement ... that the Humane Methods of Slaughter Act of 1958 ... does not require ‘humane handling and slaughter’ for poultry;” and (3) “enjoining USDA from excluding chickens, turkeys, and other poultry species from the protections provided by the Humane Methods of Slaughter Act of 1958....”
On September 6, 2006, the district court denied USDA’s motion to dismiss, concluding that Levine had standing because the alleged injuries were redressable, and that the Notice constituted final agency action and thus was subject to judicial review. On February 28, 2008, in connection with cross-motions for summary judgment, the district court ruled in USDA’s favor on the merits pursuant to an аnalysis under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
II. STANDARD OF REVIEW
De novo
review applies to both the district court’s grant of summary judgment and to questions of statutory interpretation under
Chevron. See J & G Sales Ltd. v. Truscott,
This court may affirm on any ground supported by the record.
See Pritikin v. Dep’t of Energy,
III. ANALYSIS
On appeal, before addressing the substantive merits of the ease, USDA resurrected its contention that Levine lacked Article III standing. USDA did not file a cross-appeal, but it need not have done so in order to argue that issue here.
See Biggs v. Best, Best & Krieger,
Levine had the burden below of establishing the three elements of Article III standing: (1) that plaintiffs had suffered an injury in fact that was concrete and particularized, and actual or imminent;
*992
(2) that the injury is fairly traceable to the challenged conduct; and (3) that the injury was likely to be redressed by a favorable court decision.
See Salmon Spawning & Recovery Alliance v. Gutierrez,
The district court relied upon the rule that a plaintiff “must show only that a favorable decision is
likely
to redress his injury, not that a favorable decision
will inevitably
redress his injury,” citing
Beno v. Shalala,
When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiffs asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inаction— and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” ... and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish.
Though it obviously recognized that the redressability element herein relied upon the actions of third parties not before the
*993
court
(ie.,
poultry processors and slaughterhouses) and that the HMSA of 1958 presently contains no statutory enforcement mechanisms, the district court nevertheless concluded that redressability was likely because of the availability of an alternative method of enforcement. The district court believed that the Secretary could — and likely would — enforce humane slaughter requirements through the FMIA and that legislation’s grant of authority to the Secretary to include whatever additional “species of livestock” he or she “eonsider[ed] appropriate” within the scope of the humane slaughter requirements sеt forth in the FMIA and the HMSA of 1958.
See
Pub.L. 109-96 § 798;
see also 21
U.S.C. § 601(w). Of course, in
Defenders of Wildlife,
the Supreme Court rejected speculation, even when it took the form of “confiden[t]” speculation.
Defenders of Wildlife,
While it is true that the proeessors/slaughterhouses would be the only technical third parties necessary for redressability here, the Secretary’s actions under the FMIA are equally outside the scope of this lawsuit (which seeks declaratory/injunctive relief solely as to the HMSA of 1958), and therefore subject to some significant measure of speculation. In this regard, the district court and the parties appear to have overlooked
Fernandez v. Brock,
In
Fernandez,
this court concluded that it was “speculative at best whether a court order compelling the Secretary [of Treasury and other federal officials and agencies] to promulgate regulations” under ERISA would enlarge farmworkers’ pension benefits and thus give the plaintiffs standing.
Id.
at 627. It reached that conclusion because of the multiple unknown questions such a course would raise: 1) whether the regulations would have eligibility thresholds meaningfully lower than the present standard; 2) whether the employer would continue to maintain a pension plan at all under such new regulations where he was not required to do so and no one could predict what the regulations might require; and 3) whether the farmworkers would meet whatever eligibility standard the employer would set in connection with such unknown regulations.
See id.
at 627-28;
see also Allen v. Wright,
In Fernandez, plaintiffs were migrant workers seeking a court order to force the Secretary of Labor to establish regulations that might affect their eligibility for retirement benefits. However, because any increase in the benefits for which plaintiffs would be eligible was entirely contingent upon the actual content of the regulаtions the Secretary would ultimately establish, as well as the actions of plaintiffs’ private employer, the court could not say with any degree of confidence that granting the plaintiffs their requested relief would benefit them.
Alaska Ctr. for the Env’t v. Browner,
Because of the repeal of the only enforcement provision that had ever been present in the HMSA of 1958, a not-entirely-dissimilar set of speculative steps would have to occur here. First, the Secretary would have to make the independent policy determination (taking into consideration the ruling in this case or not) that he should deem chickens, turkeys and birds to
*994
be “amenable species” because, without the threat of enforcement afforded by the FMIA, it is exceedingly difficult to say that any change Levine wants from the processors/slaughterhouses would be “likely.” However, a decision from this court (that the phrase “other livestock” in the HMSA of 1958 includes poultry) would not mandate or otherwise compel the Secretary to conclude that poultry should be added as an “amenable species” in the FMIA, 21 U.S.C. § 601(w).
7
Second, even if the Secretary were to add poultry as an “amenable species” to the FMIA, the Secretary would then have to issue regulations of uncertain content (if not uncertain nature).
8
Third, the chicken, turkey and domestic bird processors would then have to abide by those regulations, whatever they might be. Even if, in line with
Artichoke Joe’s v. Norton,
*995
In other words, using
Bennett’s
terminology, the “determinative or coercive effect” would not run from this court’s ruling on the meaning of “livestock” in the HMSA of 1958, but from the Secretary’s independent decision to accord chickens, turkеys and other domestic birds “amenable species” status under the 2005 amendments to the FMIA. However, that decision is not at issue in this lawsuit. Further, that decision may be subject to a number of political and legal factors quite independent from this court’s determination with respect to the meaning of the HMSA of 1958,
9
including whether the Secretary could take any such action in a way that would not be inconsistent with provisions of the PPIA. It is therefore simply impossible for the court to predict that such action “will be made” or is even “likely” within the analysis established as appropriate by
Defenders of Wildlife.
As such, Levine’s injuries are not redressable and that claim fatally suffers from a lack of Article III standing, a conclusion which this court has reached in other similar circumstances.
See, e.g., Renee v. Duncan,
Levine argues that redressability is no more speculative here than in
Tozzi v. U.S. Dep’t of Health and Human Services,
*996 The Tozzi court’s conclusion — that “at least some” of the plaintiffs’ economic injury would be redressable — is seemingly unassailable, even if all of the constituent parts of its reasoning are not. For instance, it was not at all speculative for the D.C. Circuit to conclude that an order setting aside the Secretary’s listing of dioxin as a “known” carcinogen would have the “likely” effects of 1) precluding “dioxin activists” from “pointing] to an authoritative determination by the United States government that dioxin is ‘known’ to cause cancer in humans” and 2) permitting the manufacturer to point to that same authoritative list as no longer listing dioxin as a “known” human carcinogen. See id. at 309-10. This, seemingly by itself, would have provided redressability for “at least some” of the manufacturer’s injury. This court could therefore agree with the Tozzi holding even if it disagreed with its reasoning with respect to the likely regulatory decisions of state and local governments. See id. at 310. On that latter point, Tozzi would appear to be inconsistent with this court’s opinions in Fernandez, Renee and Pntikin.
Levine also argues that at least contractors selling poultry to the federal government would have to comply with regúlations passed under the HMSA of 1958 notwithstanding the absence of an enforcement provision in that statute, because of 48 C.F.R. § 52.212 — 4(q). That Federal Acquisition Regulation provides that any such contractor “shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.” Id. Yet, Levine has not demonstrated that any humane slaughter regulation would be “applicable to [a contractor’s] performance” under a сontract which merely calls for the provision or delivery of poultry products to the Government. Levine also has not pointed to or alleged the existence of any poultry processor-government contract which actually contains or incorporates section 52.212-4(q) as a term (although they seemingly could have easily done so). 10 Even if all of those problems were taken care of, however, Levine still runs into the difficulty of not being able to demonstrate that it is likely that the content of any regulations USDA might issue and which might, therefore, be in some sense applicable through 48 C.F.R. § 52.212-4(q), would actually redress the particular harms she claims.
Finally, although the district court considered the redressability issue at the motion to dismiss stage, a court’s obligation
*997
to take a plaintiff at its word at that stage in connection with Article III standing issues is primarily directed at the injury in fact and causation issues, not redressability.
See Defenders of Wildlife,
IV. CONCLUSION
Because Levine’s alleged injuries are not redressable by way of this lawsuit, there is a lack of standing to proceed with this action. Consequently, the decision of the district court granting the USDA’s motion for summary judgment is vacated and the case is remanded with instructions to dismiss. 12
VACATED AND REMANDED.
Notes
. As discussed below, in 1978, Congress enacted pertinent legislation also termed the “Humane Methods of Slaughter Act.” See Pub.L. No. 95-445, 92 Stat. 1069 (1978). Levine brought the present litigation pursuant to the HMSA of 1958 and not the 1978 legislation.
. A 1978 amendment added "and handling in connection with such slaughtering” at the close of this sentence. See Pub.L. No. 95-445, 92 Stat. 1069 (1978).
. 7 U.S.C. § 1903 had stated in relevant part:
The public policy declared in this chapter shall be taken into consideration by all agencies of the Federal Government in connection with all procurement and price support programs and operations and after June 30, 1960, no agency or instrumentality of the United States shall contract for or procure any livestock products produced or processed by any slaughterer or processor which in any of its plants or in any plants of any slaughterer or processor with which it is affiliated slaughters or handles in connection with slaughter livestock by any meth *989 ods other than methods designated and approved by the Secretary of Agriculture....
. The HMSA of 1958 also included a provision for identifying carcasses inspected under the Meat Inspection Act (discussed further in the text below as the “Federal Meat Inspection Act”), which also covered goats, that had been slaughtered in accordance with the public policy of the HMSA of 1958. See Pub.L. No. 85-765, 72 Stat. 862, 863 (codified at 7 U.S.C. § 1904(c) (repealed 1978)).
. In 2008, section 601(w) was again amended to specifically include catfish within the definition of "amenable species.” See Food, Conservation, and Energy Act of 2008, Pub.L. No. 110-234, Title XI, § 11016(b)(l)(A)(ii), (iii), 122 Stat. 923, 1369 (2008).
. It did so once morе by analyzing the HMSA of 1978 in connection with a 1996 request that the agency issue humane slaughter regulations pursuant to the PPIA. It took similar positions in letters authored in 2004 and 2005.
. The need to invoke the application of an entirely separate statute and its enforcement provision is what principally distinguishes this case, as it relates to the question of “likely” enforcement, from
Artichoke Joe’s v. Norton,
. Because the substance of the regulations the Secretary would or would not eventually issue in response to a victory for Levine in this litigation is entirely unknown, it cannot even be determined “likely” that such regulations would resolve the particular harms — physical, economic or aesthetic — that the various plaintiffs have alleged in the SAC.
For example, Levine pled that redressability was satisfied because, if she prevailed, "the number of chickens and other birds slaughtered inhumanely will be reduced, thus decreasing her risk of contracting food-borne illness....” However, since the 1957 enactment of the PPIA, the USDA has had the authority to inspect and otherwise regulate the slaughterhouse facilities for poultry products in order to reduce the risk of poisonous or deleterious substances in or on poultry sold for consumption. See 21 U.S.C. §§ 451-71. Pursuant to the PPIA and the FMIA, the USDA has already issued regulations (see, e.g., 9 C.F.R. part 416) governing how an "establishment must be operated and maintained in a manner sufficient to prevent the creation of insanitary conditions and to ensure that product is not adulterated.” 9 C.F.R. § 416.1. Moreover, the USDA has also already promulgated regulations (see 9 C.F.R. part 417) which require meat producing establishments to have conducted "a hazard analysis to determine the food safety hazards reasonably likely to occur[at various points] in the production process and identify the preventive measures the establishment can apply to control those hazards.” 9 C.F.R. § 417.2(a)(1). Among the types of food safety issues to be considered are: "natural toxins,” "microbiological contamination,” "zoonotic diseases,” and "decomposition.” Id. at § 417.2(a)(3). One of the "processing categories” which is to be analyzed for food safety risks (and concomitant preventative measures) is the slaughter stage. Id. at § 417.2(b)(1). Given the current existing regulations covering the subject of the prevention of food-borne illnesses as to poultry, it is entirely speculative as to what (if any) new regulations would be promulgated in that area as a result of the addition of poultry as an "amenable species.”
. Though the remarks came at a time when the district court had already decided the standing issue, Levinе’s counsel effectively acknowledged this uncertainty at the summary judgment hearing when asked why Congress had not done something "clear and definitive”:
Certainly, I know my clients have talked to Congress about clarifying what the language actually says. But why Congress hasn’t acted, I’m not quite sure. We know it’s not because people aren't interested. The Notice says that 13,000 people wrote in about this particular issue. People really care about this issue.
Just as Levine’s counsel could not pinpoint the reason behind Congressional inaction, there are many factors the Secretary would have to take into consideration in determining whether to exercise his authority pursuant to section 601(w).
. In addition, it is not entirely clear from the record that Levine even raised this particular argument below.
Cf. Joint Stock Soc’y v. UDV N. Am., Inc.,
.
Warth
appears to have predated the Supreme Court's
specification
of redressability as a
separate
standing element (though, as part of the Article III standing requirement, it was assuredly always there).
See Defenders of Wildlife,
. Because we decide this case on a threshold lack of standing ground, we do not reach the other substantive issues raised on this appeal.
See Fox
v.
Smoker (In re Noblit),