                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 09 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RANCHERS CATTLEMEN ACTION                        No.   17-35669
LEGAL FUND UNITED
STOCKGROWERS OF AMERICA, a                       D.C. No. 4:16-cv-00041-BMM
Montana Corporation,

              Plaintiff-Appellee,                MEMORANDUM*

 v.

SONNY PERDUE, in his Official
Capacity as Secretary of Agriculture and
UNITED STATES DEPARTMENT OF
AGRICULTURE,

              Defendants-Appellants.


                    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




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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.
                                            2
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




                                           3
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)).
                                           4
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.




                                           5
                                                                         FILED
R-CALF USA v. Perdue, 17-35669                                            APR 9 2018

HURWITZ, Circuit Judge, dissenting:                                  MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


      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
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.
