Ranchers Cattlemen Action Legal Fund United Stockgrowers of America, a Montana… v. Sonny Perdue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANCHERS CATTLEMEN ACTION
LEGAL FUND UNITED
STOCKGROWERS OF AMERICA, a
Montana Corporation,
Plaintiff-Appellee,
v.
SONNY PERDUE, in his Official
Capacity as Secretary of Agriculture and
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendants-Appellants.
No. 17-35669
D.C. No. 4:16-cv-00041-BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted March 5, 2018
Portland, Oregon
FILED
APR 09 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,** District
Judge.
Sonny Perdue, Secretary of Agriculture (Secretary), appeals the district
court’s grant of Ranchers-Cattlemen Action Legal Fund United Stockgrowers of
America’s (R-CALF USA) motion for a preliminary injunction. We have
jurisdiction under 28 U.S.C. § 1292(a), and we affirm.
Under our “limited and deferential” review that “does not extend to the
underlying merits of the case,” we are unable to say the district court abused its
discretion in granting the preliminary injunction. Thalheimer v. City of San Diego,
645 F.3d 1109, 1115 (9th Cir. 2011) (citation omitted). Preliminary injunctions are
reviewed for an abuse of discretion. Paramount Land Co. v. Cal. Pistachio
Comm’n, 491 F.3d 1003, 1008 (9th Cir. 2007); Thalheimer, 645 F.3d at 1115.
“Under this standard, as long as the district court got the law right, it will not be
reversed simply because the appellate court would have arrived at a different result
if it had applied the law to the facts of the case.” Thalheimer, 645 F.3d at 1115
(alteration and citation omitted). However, “[a] trial court abuses its discretion if it
bases its decision on an erroneous legal standard or on clearly erroneous factual
** The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
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findings.” United States v. Schiff, 379 F.3d 621, 625 (9th Cir. 2004) (quotation
marks omitted).
1. The district court did not abuse its discretion by finding that the instant
assessment likely violated R-CALF USA’s First Amendment rights. The Secretary
does not denote where the district court applied an “erroneous legal standard.”
Rather, the Secretary takes issue with the district court’s conclusion. This is
insufficient to support reversal of a preliminary injunction. The district court
outlined the correct legal standards as found in Johanns v. Livestock Marketing
Association, 544 U.S. 550 (2005), Paramount, and Delano Farms Co. v. California
Table Grape Commission, 586 F.3d 1219 (9th Cir. 2009), and applied those
standards to the facts of this case. Reviewing the facts of these cases against the
instant case, we cannot say the district court incorrectly concluded it was likely R-
CALF USA would succeed on the merits. Unlike prior cases, the Secretary does
not appoint any members of the Montana Beef Council (MBC), does not have pre-
approval authority over the MBC’s advertising, and may only decertify after an
action has been taken. In addition, any oversight the Secretary might exert over the
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MBC is one, additional step further removed from the governmental oversight
analyzed in Johanns, Paramount, and Delano Farms.1
2. The district court did not abuse its discretion by finding that the
“redirection” procedures were insufficient. The district court set out the correct
1 The Secretary, through the Agricultural Marketing Service, entered into a
Memorandum of Understanding (MOU) with the MBC ten days after the
magistrate judge issued his findings and recommendations. On its face, the MOU
granted the Secretary additional authority over the MBC. The Secretary attached
the MOU in its objection to the magistrate judge’s findings and recommendations.
However, the district court’s memorandum and order did not discuss the MOU.
Nonetheless, the Secretary waived any argument that the district court’s silence
regarding the MOU was an abuse of discretion, because he failed to articulate this
argument in his opening brief. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th
Cir. 1990) (“The general rule is that appellants cannot raise a new issue for the first
time in their reply briefs.” (quotation marks and alterations omitted)); see also
Crime Justice & Am., Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017) (“Issues
raised in a brief which are not supported by argument are deemed abandoned.”
(citation omitted)). The Secretary asserted in the opening brief only that the MOU
“makes the agency’s oversight authority even more explicit” and that the district
court “did not discuss the MOU in its order.” The opening brief did not assert that
the failure to address the MOU was an independent basis to conclude that the
district court abused its discretion, nor did the Secretary refer to United States v.
Howell, 231 F.3d 615, 621-22 (9th Cir. 2000) (addressing the district court’s duty
regarding supplemental evidence provided in an objection to a magistrate’s
recommendation), or its progeny, for that proposition. Rather, in the reply brief, the
Secretary argued—for the first time—that “the district court’s failure to explain its
reasons for not considering the MOU constitutes an abuse of discretion,” and cited
the relevant case law. Accordingly, we decline to consider the MOU’s impact for
the first time on appeal. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994)
(“We review only issues which are argued specifically and distinctly in a party’s
opening brief. . . . [A] bare assertion does not preserve a claim, particularly when,
as here a host of other issues are presented for review.” (citation omitted)).
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legal standards as outlined in Knox v. Service Employees International Union, 567
U.S. 298 (2012), and applied those standards to the facts of this case. Like the
labor union political contributions disapproved of in Knox, those who wish to opt
out of assessments going to the MBC must do so every time cattle are sold. Knox,
567 U.S. at 322, 322 n.9; Soybean Promotion, Research, and Consumer
Information; Beef Promotion and Research; Amendments To Allow Redirection of
State Assessments to the National Program; Technical Amendments, 81 Fed. Reg.
45,984-01 (proposed July 15, 2016) (to be codified at 7 C.F.R. parts 1220 to 1260)
(amending regulations to require a request for a “redirection” by the “15th day of
the month following the month the cattle were sold”). The Secretary disagrees with
the district court’s reading of Knox, but neither cites additional binding authority to
contradict Knox’s reasoning, nor identifies a legal error by the district court. This is
insufficient to warrant reversing a preliminary injunction.
AFFIRMED.
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R-CALF USA v. Perdue, 17-35669
HURWITZ, Circuit Judge, dissenting:
Even given our deferential standard of review, I believe that the district court
erred in granting the preliminary injunction.
As the Supreme Court has made plain, the critical question in determining
whether speech is public or private in the precise context of this case is whether the
speech is “effectively controlled” by the government. Johanns v. Livestock Mktg.
Ass’n, 544 U.S. 550, 560 (2005). The Memorandum of Understanding between the
Secretary and the Montana Beef Council (“MBC”) plainly grants the Secretary
complete pre-approval authority over “any and all promotion, advertising, research,
and consumer information plans and projects” of the MBC. The district court failed
to even discuss the Memorandum in granting the preliminary injunction, let alone
suggest why it was not a facially enforceable agreement.
To be sure, the Memorandum was not submitted to the district court until after
the magistrate judge made his report and recommendation; “a district court has
discretion, but is not required, to consider evidence presented for the first time in a
party’s objection to a magistrate judge’s recommendation.” United States v. Howell,
231 F.3d 615, 621 (9th Cir. 2000). But, “the district court must actually exercise its
discretion” rather than simply ignore the new evidence, as it did here. Brown v. Roe,
279 F.3d 742, 744 (9th Cir. 2002) (citation omitted). Moreover, the Memorandum
FILED
APR 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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was not entered into until after the issuance of the report and recommendation—and
plainly was designed to remedy the purported deficiencies in “effective control” by
the Secretary identified in the magistrate judge’s submission. Under these
circumstances, the district court’s decision to preliminarily enjoin the operation of a
federal program as unconstitutional without at least addressing the Memorandum
was an abuse of discretion.
I find mystifying the majority’s conclusion the Secretary has waived any
argument based on the Memorandum. His opening brief repeatedly cites the
Memorandum and expressly notes the failure of the district court to address it. The
district court did not rely on Howell in failing to address the Memorandum, and I
cannot conclude that the Secretary waived any argument based on the Memorandum
simply because the majority has concluded, post-hoc, that his brief should also have
sought to distinguish Howell. A party does not waive a clearly articulated argument
by failing to anticipate the grounds on which a Court might reject it.
I respectfully dissent.

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