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Reichley v. Pennsylvania Dep't of Agriculture

November 2, 2005

GALEN REICHLEY, T/D/B/A REICHLEY BROTHERS FARM; ALLEN REICHLEY, T/D/B/A REICHLEY BROTHERS FARM; CURTIS STROUP
v.
PENNSYLVANIA DEPARTMENT OF AGRICULTURE; PENN AG INDUSTRIES; LONGENECKER'S HATCHERY, INC.; KREAMER FEED, INC.; DENNIS C. WOLFF; SAMUEL E. HAYES, AS SECRETARY OF THE PA DEPARTMENT OF AGRICULTURE GALEN REICHLEY, ALLEN REICHLEY T/D/B/A/ REICHLEY BROTHERS FARM AND CURTIS STROUP, APPELLANTS



On Appeal from the United States District Court for the Middle District of Pennsylvania District No. 03-cv-00009 District Judge: Honorable Malcolm Muir.

The opinion of the court was delivered by: McKee, Circuit Judge

PRECEDENTIAL

Argued: July 11, 2005

Before: Sloviter, McKee, Circuit Judges, and Fullam, District Judge*fn1

OPINION

We are asked to review the District Court's grant of summary judgement in favor of the Secretary of Agriculture for the Commonwealth of Pennsylvania and Penn Ag Industries in this civil rights action brought pursuant to 42 U.S.C. § 1983. Appellants allege that certain actions defendants took in response to an outbreak of avian influenza deprived them of their property "without procedural or substantive due process in violation of the Fourteenth Amendment of the Constitution of the United States." Appellants' Br. at 39. For the reasons that follow, we will affirm.

I. BACKGROUND

A. Statutory and Regulatory Underpinnings

In enacting Pennsylvania's Domestic Animal Law (Act of July 11, 1996, P.L. 561. No. 100, as amended), 3 Pa. CS. §§ 2301-2389, Pennsylvania's General Assembly declared animal health to be of major economic interest in Pennsylvania, and it proclaimed that "it is the . . . policy of the Commonwealth to assure the health and welfare of animals kept in captivity, to prevent and control diseases and dangerous substances that may threaten the safety of animals and humans, and to provide for desirable management practices for the production . . . of domestic animals." 3 Pa.C.S. § 2302.*fn2 The Pennsylvania Department of Agriculture (the "PDA"), and more specifically, the Secretary of Agriculture, has authority to implement that policy.

Accordingly, the PDA has the power under the Domestic Animal Law to quarantine animals it reasonably suspects have been exposed to a dangerous, transmittable disease. 3 Pa.C.S. § 2329 (a). The PDA also has the authority to, "condemn and seize or cause to be destroyed, any quarantined domestic animal . . . that has been determined by the Department as having been exposed to a dangerous transmittable disease or hazardous substance such that destruction of the domestic animal. . . is necessary to prevent the spread of such disease or contamination." 3 Pa.C.S. § 2330.

B. Avian Influenza

As the District Court explained, "Avian influenza is caused by a type A virus with symptoms that . . . vary from a mild disease with little or no mortality to a highly fatal disease depending on various factors." App. at 9. The viruses are classified into "low pathogenic and highly pathogenic forms based on the severity of the illnesses they cause. Although both demonstrate differing clinical signs in affected birds, both forms . . . are highly contagious and have a potentially devastating effect on the poultry industry[,]" id., due to the viruses' ability to rapidly spread from flock to flock. App. at 1331

According to the Declaration of Dr. John Enck, V.M.C., Bureau Director for Animal Health and Diagnostic Services of the Pennsylvania Department of Agriculture, low pathogenic avian influenza:

typically causes little or no clinical signs of illness in infected birds. However, some low pathogenic virus strains are capable of mutating into high pathogenic virus strain [sic] that causes severe clinical signs and high mortality rates in flocks. Therefore, low pathogenic avian influenza is taken very seriously and steps need to be taken to contain the spread of the disease quickly.

App. at 1331.

At his deposition, Dr. Enck described an outbreak of avian influenza that struck the Commonwealth in 1983. He explained that "everyone" wanted to prevent a reoccurrence.

[T]here were about seven and a half million birds lost. The infection went to high path avian influenza and indemnities paid during that period . . . were close to $63 million, and I guess the total cost to the industry was like $84 million. . . . [I]n other words, it was a very big outbreak.

App. at 1273. He characterized the 1983 outbreak as "catastrophic." Id. Although he did not know for a fact that the outbreak began as a "low path" outbreak that mutated to a "high path" one, he stated, "that has happened in many of the outbreaks around the world. . . and it is always the biggest fear. . . ". Id.

According to a report of the Center for Disease Control and Prevention, avian influenza occurs naturally in the intestines of wild birds, and it can be highly contagious and potentially fatal in domesticated animals such as chickens, ducks, and turkeys. Centers for Disease Control and Prevention, Information about Avian Influenza (Bird Flu) and Avian Influenza A (H5N1) Virus (May 24, 2005), available at http://www.cdc.gov/flu/avian/gen-info/pdf/avianflufacts.pdf.*fn3 Although the virus does not usually infect humans, it has that potential and does infect humans occasionally.

In order to control the spread of diseases such as avian influenza, the PDA sometimes finds it necessary to "depopulate" diseased poultry.*fn4 Owners of flocks that the PDA orders depopulated under the Domestic Animal Law are entitled to compensation pursuant to that statute. 3 Pa.C.S. § 2331. Owners of flocks can also be compensated for agreeing to depopulate suspicious flocks in the absence of a formal order from the PDA if there is evidence that the virus is present. This is known as "friendly condemnation." App. at 1273.

The PDA has established procedures for combating and containing an outbreak of avian influenza. App. at 1518-1525. The protocols in place at the time of the outbreak at issue in this appeal may be summarized as follows: (1) once a presumptive diagnosis of avian influenza was made, the PDA was required to order an immediate quarantine, app. at 1518; (2) additional testing would then establish whether or not the preliminary diagnosis was accurate, and whether authorities were really confronted with avian influenza or a similar contagious disease; (3) when certain conditions existed and avian influenza was "confirmed," the flock would be depopulated, and the owner thereby would become eligible to receive compensation in the amount of 67% of the appraised value of the flock, plus compensation for the cost of cleanup and disposal; (4) compensation paid under the Domestic Animal law had to be approved by the PDA.

A diagnosis of avian influenza was deemed confirmed, and the flock was therefore subject to depopulation if tests confirmed:

Signs suggestive of [avian influenza] and one of the following positive virus isolation or sero-positivity and supporting epidemiological evidence, or

[was] positive for any test on surveillance and positive on follow-up virus isolation in samples ...


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