Hernandez-Gotay v. United States

United States Court of Appeals
For the First Circuit

No. 19-2236

NYDIA MERCEDES HERNÁNDEZ-GOTAY; FAUSTINO ROSARIO-RODRÍGUEZ; LUIS
JOEL BARRETO-BARRETO; CARLOS QUIÑONES-FIGUEROA; LAURA GREEN,

Plaintiffs, Appellants,

CLUB GALLÍSTICO DE PUERTO RICO, INC.,

Plaintiff,

and

ASOCIACIÓN CULTURAL Y DEPORTIVA DEL GALLO FINO DE PELEA; ÁNGEL
MANUEL ORTIZ-DÍAZ; JOHN J. OLIVARES-YACE; ÁNGEL LUIS NARVÁEZ-
RODRÍGUEZ; JOSÉ MIGUEL CEDEÑO,

Plaintiffs,

v.

UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY
PERDUE, Secretary of the Department of Agriculture;* UNITED
STATES DEPARTMENT OF JUSTICE; JEFFREY A. ROSEN, Acting Attorney
General;** DONALD J. TRUMP, President,

Defendants, Appellees.

* It appears that appellants have misspelled the Secretary's
name, an error which is reflected in their briefing and on the
docket. The Clerk of Court shall amend the case caption to reflect
the correct spelling as used in this opinion.
** Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Jeffrey A. Rosen has been substituted for former Attorney
General William P. Barr as appellee.
No. 20-1084

ASOCIACIÓN CULTURAL Y DEPORTIVA DEL GALLO FINO DE PELEA; ÁNGEL
MANUEL ORTIZ-DÍAZ; JOHN J. OLIVARES-YACE; ÁNGEL LUIS NARVÁEZ-
RODRÍGUEZ; JOSÉ MIGUEL CEDEÑO,

Plaintiffs, Appellants,

and

CLUB GALLÍSTICO DE PUERTO RICO, INC.; NYDIA MERCEDES HERNÁNDEZ-
GOTAY; FAUSTINO ROSARIO-RODRÍGUEZ; LUIS JOEL BARRETO-BARRETO;
CARLOS QUIÑONES-FIGUEROA; LAURA GREEN,

Plaintiffs,

v.

UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY
PERDUE, Secretary of the Department of Agriculture; UNITED
STATES DEPARTMENT OF JUSTICE; JEFFREY A. ROSEN, Acting Attorney
General; DONALD J. TRUMP, President,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Barron, Circuit Judges.

Edwin Prado-Galarza and María A. Domínguez, with whom Rafael
Ojeda, Félix Román Carrasquillo, and DMRA Law LLC were on briefs,
for appellants.
Jeffrey Bossert Clark, Sr., with whom Ethan P. Davis, Acting
Assistant Attorney General, W. Stephen Muldrow, United States
Attorney, Abby C. Wright, Attorney, Appellate Staff Civil
Division, and John S. Koppel, Attorney, Appellate Staff Civil
Division were on brief, for appellees.
Isaías Sánchez-Báez, Solicitor General of Puerto Rico, and
Carlos Lugo-Fiol on brief for the Commonwealth of Puerto Rico,
amicus curiae.
Jorge Martínez-Luciano, Emil Rodríguez-Escudero, and M.L. &
R.E. Law Firm on brief for the Puerto Rico Association of Mayors,
amicus curiae.
Ana Maria Hernandez Marti and Jessica L. Blome on brief for
Animal Wellness Action, Animal Wellness Foundation, and the Center
for a Humane Economy, amici curiae.

January 14, 2021
 LYNCH, Circuit Judge. Plaintiffs in these consolidated

cases challenge the constitutionality of Section 12616 of the

Agriculture Improvement Act of 2018 ("Section 12616"), which bans

the "sponsor[ship]" and "exhibit[ion]" of cockfighting matches in

Puerto Rico. Pub. L. No. 115-334, § 12616, 132 Stat. 4490, 5015-

16 (codified as amended at 7 U.S.C. § 2156). Plaintiffs argue

that the law exceeds Congress's Commerce and Territorial Clause

powers and violates their First Amendment and Due Process rights.

We affirm the district court's decision and hold that Section 12616

is a valid exercise of Congress's Commerce Clause power and does

not violate plaintiffs' individual rights.1

I. Background

On appeal from the grant of the government's motion for

summary judgment, we read the facts in the light most favorable to

the plaintiffs. Stamps v. Town of Framingham, 813 F.3d 27, 30

(1st Cir. 2016).

Cockfighting is "the sport of pitting gamecocks to fight

and the breeding and training of them for that purpose."

Cockfighting, Britannica, https://www.britannica.com/sports

/cockfighting (last visited Dec. 17, 2020). The birds are bred to

1 We acknowledge and thank the amici curiae for their
submissions in this case. The Puerto Rico Association of Mayors
and the Commonwealth of Puerto Rico filed amicus curiae briefs in
support of appellants. Animal Wellness Action, Animal Wellness
Foundation, and the Center for a Humane Economy submitted an amicus
curiae brief in support of the government.

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fight, are typically armed with steel spurs, and fight until one

of the birds dies or is so injured that it can no longer fight.

The Cockfight: A Casebook, at vii (Alan Dundes ed., 1994). The

fights may end in a few minutes or go on as long as half an hour.

Id. Cockfighting was banned in Puerto Rico from 1898 to 1933, and

has since been heavily regulated under local Puerto Rico law. See

P.R. Laws Ann. tit. 15 §§ 301 et seq.

In 1976, Congress amended the Animal Welfare Act ("AWA")

to ban "animal fighting venture[s]," now defined as "any event, in

or affecting interstate or foreign commerce, that involves a fight

conducted . . . between at least 2 animals for purposes of sport,

wagering, or entertainment." 7 U.S.C. § 2156(f)(1); Animal Welfare

Act Amendments of 1976, Pub. L. No. 94-279, 90 Stat. 417, 421-22

(codified as amended at 7 U.S.C. § 2156). Those 1976 amendments

contained an exception allowing fights between "live birds" which

took place in any state where such fights were allowed under state

law. Animal Welfare Act Amendments of 1976 § 17. Puerto Rico is

treated as a state under the AWA. 7 U.S.C. § 2156(f)(3).

Congress has amended the animal fighting venture

prohibition several more times. As of 2018, before the passage of

the law at issue in this case, Congress had banned attendance at

all animal fighting ventures -- including those in Puerto Rico and

other jurisdictions which still allowed cockfighting -- and the

"[b]uying, selling, delivering, possessing, training, or

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transporting" of animals for the purpose of having the animal

participate in an animal fighting venture. 7 U.S.C. § 2156(a)(2),

(b) (2018).

In 2018, Congress passed Section 12616, which removed

the remaining exception that allowed individuals to "[s]ponsor[]

or exhibit[]" cocks in fights if allowed under local law and if

they lacked knowledge that the cocks were moved in interstate

commerce for purposes of cockfighting. See Section 12616(a); 7

U.S.C. § 2156. It also closed an exception which had allowed the

use of interstate mail or services to advertise or promote

cockfights taking place in states which permitted cockfighting.

See Section 12616(b); 7 U.S.C. § 2156(c); Farm Security and Rural

Investment Act of 2002, Pub. L. No. 107-171 § 10302, 116 Stat.

134, 492.

The sponsors of Section 12616 explained that prohibiting

cockfighting would "move to end the cruelty of animal fighting,"

"protect . . . communities from associated crimes such as illegal

drug dealing and human violence," and "safeguard against the spread

of diseases in poultry such as avian flu, since birds used in

cockfighting are particularly vulnerable." Further, "[a]fter a

2002 outbreak of exotic Newcastle disease in the U.S., which cost

taxpayers nearly $200 million and the poultry industry many

millions more, the USDA implicated cockfighting as a culprit in

spreading the disease."

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 II. Procedural History

On May 22 and August 1, 2019, plaintiffs filed two suits

to enjoin the enforcement of Section 12616.2 The cases were

consolidated by the district court on August 5, 2019.

Plaintiffs asserted a number of claims, including that

Section 12616 violated their First Amendment and Due Process

rights, and that Congress exceeded its powers under the Commerce

and Territorial Clauses. Club Gallístico de P.R. Inc. v. United

States, 414 F. Supp. 3d 191, 201 (D.P.R. 2019). The plaintiffs

lodged both facial and as-applied pre-enforcement challenges to

the statute. Id. at 200.3

The government asserted that plaintiffs did not have

standing to challenge the portions of the animal fighting venture

ban that were unchanged by Section 12616.4 Id. at 203.

2 Plaintiffs were individuals and a corporation which own
cockfighting rings; individuals who breed, own, or invest in birds;
individuals who work for cockfighting arenas; an artisan who crafts
cockfighting-inspired art to be sold across state lines; and a
cultural association dedicated to "preserving the tradition,
culture, and economic benefits of cockfighting."
3 Any facial challenge fails because the statute has
"plainly legitimate sweep." Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008). Therefore, we address
only the as-applied challenge.
4 On appeal, plaintiffs have dropped their claims that
Section 12616 violates the anti-commandeering doctrine, that
Section 12616 is a Bill of Attainder, that Section 12616 is
inapplicable to Puerto Rico under the Puerto Rico Federal Relations
Act, that Section 12616 violates the Takings Clause, and that
Section 12616 violates their right to travel. Club Gallístico de
P.R. Inc., 414 F. Supp. 3d at 201. The district court rejected

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 The parties filed cross-motions for summary judgment.

Id. at 201. The district court granted the government's motion

and denied plaintiffs' motion. Id. at 202.

The district court first held that the plaintiffs had

"standing to challenge the constitutionality of Congress'

extension of the animal fighting prohibition to the Commonwealth

of Puerto Rico and those provisions that have existed prior to

Section 12616's approval." Id. at 204.

The district court then concluded that Section 12616 was

a valid exercise of Congress's Commerce Clause and Territorial

Clause powers. Id. at 204-08. It next held that cockfighting is

not expressive conduct and so is unprotected by the First

Amendment, and that Section 12616 did not violate plaintiffs' right

of free association because it does not actually restrict

association. Id. at 209-10. The district court rejected the

substantive Due Process claim because there is no fundamental right

to cockfighting and there was a rational basis for passing Section

12616. Id. at 211. It also rejected plaintiffs' procedural Due

Process claim, stating that "the legislative process itself

provides citizens with all of the process they are due." Id.

(quoting Correa-Ruiz v. Fortuño, 573 F.3d 1, 15 (1st Cir. 2009)).

each of these claims. Id. at 201-02, 208-09, 211-12.
The government did not renew its argument that
plaintiffs lacked standing.

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 This appeal followed.5

III. Analysis

We review the district court's grant of summary judgment

de novo. Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020).

We first address the issue of standing, followed by the

Commerce Clause, First Amendment, and Due Process arguments.

A. Standing

Federal courts have "an independent obligation to assure

that standing exists, regardless of whether it is challenged by

any of the parties." Summers v. Earth Island Inst., 555 U.S. 488,

499 (2009).

To have standing, a plaintiff must "'allege[] such a

personal stake in the outcome of the controversy' as to warrant

his invocation of federal-court jurisdiction." Id. at 493 (quoting

Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). "To satisfy Article

III's 'personal stake' requirement vis-à-vis a statutory

challenge, the plaintiff bears the burden of demonstrating that

(i) she has suffered an actual or threatened injury in fact, which

is (ii) fairly traceable to the statute, and (iii) can be redressed

by a favorable decision." Ramírez v. Sánchez Ramos, 438 F.3d 92,

97 (1st Cir. 2006) (first citing Lujan v. Defs. of Wildlife, 504

U.S. 555, 560-61 (1992); and then citing Lewis v. Cont'l Bank

5 Plaintiff Club Gallístico de Puerto Rico, Inc. withdrew
from this appeal after the notice of appeal was filed.

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Corp., 494 U.S. 472, 477 (1990)). "[A] plaintiff satisfies the

injury-in-fact requirement where he alleges 'an intention to

engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and there

exists a credible threat of prosecution thereunder.'" Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt

v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).

We conclude that plaintiff Ángel Manuel Ortiz-Díaz, the

owner of two cockfighting venues and a breeder and owner of more

than 200 gamecocks, has standing to challenge Section 12616. Ortiz

faces a credible threat of prosecution under Section 12616 because

he regularly sponsors and exhibits cockfighting matches at his

cockpits.6 The other standing requirements are clearly met.

Article III's case-or-controversy requirement is satisfied if at

least one party has standing. Bowsher v. Synar, 478 U.S. 714, 721

(1986).

We also hold that Ortiz's claims are ripe. Ortiz's

business is to sponsor and exhibit cockfights, and Section 12616

6 Although Section 12616 does not define "sponsor[ship]"
or "exhibit[ion]," the government has stated that it would
understand at least one of those terms to encompass Ortiz's conduct
for purposes of enforcing the statute.
As to the other plaintiffs, each of them is involved in
the same class of commercial activities as Ortiz. See County of
Los Angeles v. Davis, 440 U.S. 625, 631 (1979); United States v.
Poulin, 631 F.3d 17, 21 (1st Cir. 2011).

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bans such activity. Thus, there is a controversy with "sufficient

immediacy and reality to warrant the issuance of a declaratory

judgment." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127

(2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,

273 (1941)).

B. Commerce Clause

Plaintiffs argue that Congress exceeded its authority

under the Commerce Clause in enacting Section 12616.

The Commerce Clause empowers Congress to regulate

"activities that substantially affect interstate commerce."

United States v. Lopez, 514 U.S. 549, 559 (1995). This includes

"purely local activities that are part of an economic 'class of

activities' that have a substantial effect on interstate

commerce." Gonzales v. Raich, 545 U.S. 1, 17 (2005). "In

assessing the scope of Congress' authority under the Commerce

Clause, . . . [w]e need not determine whether [plaintiffs']

activities, taken in the aggregate, substantially affect

interstate commerce in fact, but only whether a 'rational basis'

exists for so concluding." Id. at 22 (quoting Lopez, 514 U.S. at

557).

In making this inquiry, we consider four factors:

(1) whether the statute regulates economic or
commercial activity; (2) whether the statute
contains an "express jurisdictional element"
that limits the reach of its provisions; (3)
whether Congress made findings regarding the

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 regulated activity's impact on interstate
commerce; and (4) whether "the link between
[the regulated activity] and a substantial
effect on interstate commerce was attenuated."

United States v. Morales-de Jesús, 372 F.3d 6, 10 (1st Cir. 2004)

(alteration in original) (quoting United States v. Morrison, 529

U.S. 598, 610-12 (2000)).

As to the first factor, plaintiffs argue in passing that

the statute "does not truly regulate economic or commercial

activity." But, as explained by the Fourth Circuit, the AWA bans

animal fights for "purposes of sport, wagering, or entertainment,"

all of which are "closely aligned in our culture with economics

and elements of commerce." United States v. Gibert, 677 F.3d 613,

624 (4th Cir. 2012). And here, the government does not assert

that the jurisdictional element, which defines the regulated

activity as that "in or affecting interstate or foreign commerce,"

7 U.S.C. § 2156(f)(1), would be satisfied were there no commercial

aspect to a particular cockfight. Moreover, on this record,

Ortiz's sponsorship and exhibition of cockfights for profit is

clearly economic and commercial, as are the activities of the

remaining plaintiffs.

As to the second factor, the plaintiffs argue that the

"express jurisdictional element" of the AWA -- which bans all

cockfighting "in or affecting interstate or foreign commerce," 7

U.S.C. § 2156(f)(1) -- is an "illusion" which does not articulate

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a meaningful boundary between interstate and intrastate commerce.

As the Supreme Court has explained, an express jurisdictional

element "may establish that the enactment is in pursuance of

Congress' regulation of interstate commerce," Morrison, 529 U.S.

at 612, and can "ensure, through case-by-case inquiry, that the

[prohibited conduct] in question affects interstate commerce,"

Lopez, 514 U.S. at 561. And, as we have noted above, the government

does not argue that the jurisdictional element would be satisfied

as to a cockfight lacking a commercial aspect. Thus, the

jurisdictional element here is sufficient. See id. at 561-62.

As to the third factor, plaintiffs argue that Congress

made no findings regarding the 2018 amendments' impact on

interstate commerce. Plaintiffs assert that we should not look to

Congress's reasons for banning animal fighting ventures in

general, because they challenge only Section 12616. We disagree.

Section 12616 extended the existing ban to Puerto Rico rather than

creating entirely new restrictions, so earlier findings are

relevant and must be considered.

Multiple congressional findings underscore the

interstate commercial impact of cockfighting. Congress clarified

in the AWA's "statement of policy" that the "animals and activities

which are regulated under this chapter are either in interstate or

foreign commerce or substantially affect such commerce or the free

flow thereof." 7 U.S.C. § 2131. As pointed out by the Fourth

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Circuit, the House Report discussing the 1976 amendments found

that animal fighting ventures "(a) attract fighting animals and

spectators from numerous states, (b) are or have been advertised

in print media of nationwide circulation, and (c) often involve

gambling and other 'questionable and criminal activities.'"

Gibert, 677 F.3d at 625 (quoting H.R. Rep. No. 94-801, at 9 (1976),

as reprinted in 1976 U.S.C.C.A.N 758, 761). Senator Maria Cantwell

also noted that cockfighting can contribute to the spread of avian

flus, a concern of particular importance given the present ongoing

COVID-19 pandemic. See 153 Cong. Rec. S451-52 (daily ed. Jan. 11,

2007) (Statement of Sen. Cantwell).

As to the fourth factor, plaintiffs argue that Section

12616's effect on interstate commerce is incidental and

attenuated. In light of the jurisdictional hook, and the nature

of the plaintiffs' relationship to commercial cockfighting, in

this case the effects on interstate commerce are certainly not

incidental.

These factors require the conclusion that the

prohibitions in the statute are about activities which

substantially affect interstate commerce. We hold that Section

12616 is a legitimate exercise of the Commerce Clause power.7

7 As the Commerce Clause power is sufficient, we need not
reach the Territorial Clause issue.

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B. First Amendment

Plaintiffs argue that Section 12616 infringes on their

First Amendment freedoms of speech and association. We reject

both claims.

The First Amendment states that "Congress shall make no

law . . . abridging the freedom of speech." U.S. Const. amend. I.

Conduct "sufficiently imbued with elements of communication" is

also protected under the First Amendment. Texas v. Johnson, 491

U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405,

409 (1974)). However, conduct cannot "be labeled 'speech' whenever

the person engaging in the conduct intends thereby to express an

idea." United States v. O'Brien, 391 U.S. 367, 376 (1968). In

deciding whether conduct deserves First Amendment protection, we

ask both whether it was "intended to be communicative" and whether

it, "in context, would reasonably be understood by the viewer to

be communicative." Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 294 (1984). "It is the duty of the party seeking to

engage in allegedly expressive conduct to demonstrate that the

First Amendment applies to that conduct." Wine & Spirits

Retailers, Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir. 2005).

Plaintiffs argue that cockfighting in Puerto Rico is

expressive conduct entitled to First Amendment protection. We

disagree. Plaintiffs' assertion that cockfighting "express[es]

their culture and deeply rooted sense of self-determination" is

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insufficient to show that their sponsorship or exhibition of

cockfighting "would reasonably be understood by the viewer to be

communicative." Cmty. for Creative Non-Violence, 468 U.S. at 294;

see also United States v. Stevens, 559 U.S. 460, 469 (2010)

(recognizing "long history" of banning animal cruelty). By the

same token, the O'Brien test does not apply here because plaintiffs

have failed to identify any expressive element in the cockfighting

activities that they engage in such that Section 12616 could be

considered even an incidental burden on speech. See O'Brien, 391

U.S. at 376-77. Even had plaintiffs shown that their cockfighting

activities contained some expressive element, Section 12616 is

plainly permissible as an incidental restraint on such speech.

See id. at 377.

Plaintiffs next argue that Section 12616 infringes on

their First Amendment associational right to "peaceably . . .

assemble." U.S. Const. amend. I. They argue that "the

criminalization of cockfighting in Puerto Rico deters Appellants

from assembling to discuss and express their views regarding

cockfighting." This argument fails. Nothing in Section 12616

curtails any discussion or expression of a person's views regarding

cockfighting, and this section does not restrict assembly for those

purposes at all. See Knox v. Serv. Emps. Int'l Union, Local 1000,

567 U.S. 298, 309 (2012) (noting that under the Free Assembly

Clause, "the ability of like-minded individuals to associate for

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the purpose of expressing commonly held views may not be

curtailed"); Holder v. Humanitarian L. Project, 561 U.S. 1, 39

(2010) (distinguishing prior free association cases that penalize

"mere" or "simple" association as opposed to "the act of giving

material support" (quoting Humanitarian L. Project v. Reno, 205

F.3d 1130, 1133 (9th Cir. 2000))). Section 12616 cannot be

invalidated on this ground.8

C. Due Process

Plaintiffs next argue that the passage of Section 12616

violated their procedural and substantive Due Process rights.

Plaintiffs conceded at oral argument that they have no

cognizable liberty interest at stake other than their purported

First Amendment interest. That concession dooms the argument they

are making. Even apart from their concession, plaintiffs have not

shown that they have any cognizable liberty interest which is being

infringed by these prohibitions. We reject their procedural and

substantive Due Process challenges.9 See U.S. Const. amends. V,

8 Plaintiffs' reference to the Universal Declaration of
Human Rights is of no avail. "[T]he Declaration does not of its
own force impose obligation as a matter of international law."
Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004); see also
Medellín v. Texas, 552 U.S. 491, 504-05 (2008) (stating that non-
self-executing treaties do not create domestic law).
9 It is still unsettled whether due process requirements
apply to Puerto Rico by way of the Fifth or Fourteenth Amendment.
See Tenoco Oil Co. v. Dep't of Consumer Affs., 876 F.2d 1013, 1017
n.9 (1st Cir. 1989). This is of no matter, because "the language
and policies of the Due Process Clauses of the Fifth and Fourteenth
Amendments are essentially the same." United States v. Neto, 659

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XIV (protecting only against the deprivation of "life, liberty, or

property, without due process of law"); Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 569-70 (1972).

IV. Conclusion

The judgment of the district court is affirmed.

F.3d 194, 201 n.7 (1st Cir. 2011) (internal quotation marks and
citation omitted).

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