Kollman v. Vilsack et al

Filing 59

ORDER granting 39 --motion for summary judgment; directing the clerk to ENTER A JUDGMENT for the defendants and against Kollman, to TERMINATE any pending motion and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/8/2016. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LANCELOT KOLLMAN,
Plaintiff,
v.

CASE NO. 8:14-cv-1123-T-23TGW

THOMAS J. VILSACK, et al.,
Defendants.
____________________________________/

ORDER
Lancelot Kollman, an exotic-animal trainer, sues (Doc. 34) Thomas J. Vilsack,
the United States Secretary of Agriculture, and Chester A. Gipson, a “deputy
administrator of animal care” for the Animal and Plant Health Inspection Service
(APHIS).1 Under the Secretary of Agriculture’s regulations implementing the
Animal Welfare Act (AWA), Kollman sues for a declaration that, at a circus
maintained by his employer, Hawthorn Corporation, he may publicly perform —
with a tiger — a “tiger act.” The defendants move (Doc. 39) for summary judgment.

BACKGROUND
1. Statutory and Regulatory Framework
The AWA (7 U.S.C. §§ 2131–2159) regulates the housing, sale, transport,
treatment, and exhibition of animals. Captured at Section 2131, Congress’s purpose

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APHIS is an agency within the United States Department of Agriculture (USDA). This
order denominates APHIS and the USDA collectively as the USDA.

for enacting the AWA includes ensuring that animals intended “for exhibition . . .
are provided humane care and treatment” and ensuring that animals are treated
humanely “during transportation in commerce.” Section 2134 requires that an
exhibitor of an animal possess a license. Section 2132(h) defines “exhibitor” as a
“person (public or private) exhibiting any animals, which were purchased in
commerce or the intended distribution of which affects commerce, or will affect
commerce, to the public for compensation.” Section 2132(a) defines “person” as an
“individual, partnership, firm, joint stock company, corporation, association, trust,
estate, or other legal entity.”
Section 2143 directs the Secretary to enforce minimum requirements for “the
humane handling, care, treatment, and transportation of animals” by an exhibitor. If
an exhibitor violates the AWA or the implementing regulations, Section 2149
authorizes the Secretary to fine the exhibitor, to suspend the exhibitor’s license, and
after notice and opportunity for a hearing to revoke the exhibitor’s license.
Section 2151 authorizes the Secretary to promulgate regulations (9 C.F.R.
§§ 2.1–2.153) implementing the AWA. Section 2.10(c) states that a “person whose
license has been suspended or revoked shall not buy, sell, transport, exhibit, or
deliver for transportation, any animal during the period of suspension or revocation.”
Similar to the statute, the regulations include a definitions section (9 C.F.R. § 1.1).
The definitions for “exhibitor” and “person” in Section 1.1 are identical to the

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definitions in the AWA.2 Similar to the statute, the regulations contain no definition
for the verb “exhibit.” However, Section 1.1 provides that “[w]ords undefined in
[Section 1.1] shall have the meaning attributed to them in general usage as reflected
by definitions in a standard dictionary.”
2. Factual Background
Before 2009, the Secretary licensed Kollman as an exhibitor under the AWA.
(Doc. 34 ¶ 10) After the death of two lions and after Kollman failed to contest
charges against him, the Secretary revoked Kollman’s license. See Kollman Ramos v.
USDA, 322 Fed. Appx. 814, 818 (11th Cir. 2009) (Cohill, J.) (describing the events in
detail and upholding the revocation).
After the Secretary revoked Kollman’s license, Hawthorn, a company that
holds an exhibitor license, hired Kollman to train a “tiger act” for performance at
circuses throughout the United States. (Doc. 34 ¶ 21) Hawthorn originally intended
that Kollman would train the tigers and that another Hawthorn employee would
perform the tiger act at the circuses. (Doc. 49 at 2) But, because Hawthorn “was
unable to find” another employee, Hawthorn asked Kollman to travel with the tigers
and perform the tiger act. (Doc. 49 at 3) In March 2012, Kollman began to perform
the tiger act on behalf of Hawthorn. (Doc. 49 at 3)

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Although the statutory definition and the regulatory definition of “exhibitor” are identical,
the definitions include an illustrative list of examples that qualify as an “exhibitor” and an illustrative
list of examples that fail to qualify as an “exhibitor.” A comparison reveals that the regulatory
definition adds examples not included in statutory definition.

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In October 2012, Hawthorn contracted to perform the tiger act at the
“Universoul Circus.” (Doc. 49 at 4) Around this time, a director of People for the
Ethical Treatment of Animals (PETA) observed Hawthorn’s tiger act. (Doc. 49 at 4)
Upset about Kollman’s participation in the tiger act, the PETA director sent Robert
Gibbens, a “western regional director” in the USDA, an e-mail insisting that the
USDA “shut down this illegal exhibit immediately and immediately suspend
Hawthorn’s license.” (Doc. 42 at 49)
In response to the e-mail from the PETA director, Gibbens opened an
investigation into Kollman’s participation in Hawthorn’s tiger act. In October 2012,
Gibbens believed that the AWA and the Secretary’s regulations permitted Kollman
to exhibit tigers as a Hawthorn employee. (Doc. 42 at 11) Gibbens explained to the
PETA director that “having his license revoked doesn’t prevent [Kollman] from
being a bona fide employee of another licensee.” (Doc. 42 at 51) In December 2012,
after a USDA investigator confirmed Kollman’s employment with Hawthorn,
Gibbens sent to other USDA employees an e-mail concluding that “the matter can be
closed with no further action at this time.” (Doc. 42 at 124)
Despite Gibbens’ e-mail, the USDA continued to receive complaints about
Kollman and Hawthorn.3 After receiving the additional complaints, the USDA
re-opened the investigation into Kollman’s participation in Hawthorn’s tiger act. As

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The USDA received complaints from PETA; from In Defense of Animals; and from
others. A PETA “legal fellow” sent the USDA an e-mail asserting that, while he performed the tiger
act on behalf of Hawthorn, Kollman beat two tigers. (Doc. 44 at 158)

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a result of this investigation, the USDA determined that the Secretary’s regulations
prohibit Kollman from exhibiting animals as an employee of Hawthorn.
In a January 2013 letter to Kollman and Hawthorn, Gipson explained that the
“exhibition of . . . animals by a person whose license has been revoked would
constitute a violation of section 2.10(c).” (Doc. 43 at 40) Gipson warned that a
licensed exhibitor employing Kollman to engage in actions prohibited by
Section 2.10(c) “risks being subject to an administrative action to terminate his or her
Animal Welfare Act license.” (Doc. 43 at 40)

DISCUSSION
The complaint seeks a declaration that under Section 2.10(c) Kollman may
present the tiger act as an employee of Hawthorn, a licensed exhibitor. (Doc. 34
¶¶ 50–62) Specifically, Kollman argues that Section 2.10(c) does not apply to him
because he is not an exhibitor.
1. Kollman is barred from presenting animals on behalf of Hawthorn.
The parties agree that an employee who exhibits an animal on behalf of an
employer that is a licensed exhibitor is not an exhibitor under the statute and the
regulations. (Doc. 34 ¶ 52; Doc. 39 at 11) Pragmatic reasons support this
conclusion. As noted by the defendants, the statute and the regulations (1) require
that an exhibitor of an animal possess a license (See 7 U.S.C. §§ 2133, 2134) and
(2) subject the exhibitor to burdens, including requirements for record creation and
retention (See, e.g., 7 U.S.C. § 2140), which “are not designed to fall on a . . .
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contracted employee.” (Doc. 39 at 13) Therefore, although a company that
contracts to exhibit a tiger act at a circus is an exhibitor, the company’s employee
who performs the tiger act at the circus is not an exhibitor and needs no license under
the statute and the regulations.4
Kollman argues that, because as a general matter an employee of a licensed
exhibitor may exhibit an animal on behalf of his employer, Kollman may exhibit the
tiger act on behalf of Hawthorn. (Doc. 49 at 15) Kollman’s argument fails because a
more restrictive regulation, Section 2.10, applies to “[l]icensees whose licenses have
been suspended or revoked.” Under Section 2.10(c), “any person whose license has
been suspended or revoked” may not “buy, sell, transport, exhibit, or deliver for
transportation, any animal during the period of suspension or revocation.”
Section 2.10(c) expressly applies not only to an exhibitor with a revoked license but,
more broadly, to “[a]ny person” with a revoked license. The statute and the
regulations define “person” as an “individual, partnership, firm, joint stock company,
corporation, association, trust, estate, or other legal entity.” Regardless of his status

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Although the defendants agree that this employee exception exists, the defendants fail to
identify in the text of the AWA or the regulations a basis for the exception. In contrast, Kollman
asserts that the employee exception is found in the definition of “exhibitor.” (Doc. 49 at 13–15) The
statute and the regulations define “exhibitor” as a person who exhibits to “the public for
compensation” an animal that is “purchased in commerce.” Kollman asserts that he is not an
exhibitor because he neither owns the tigers in the tiger act (Hawthorn owns the tigers) nor receives
for exhibiting the tiger act payment directly from “the public” (Hawthorn pays Kollman). (Doc. 34
¶¶ 51–52) Stated differently, under Kollman’s interpretation, the definition of exhibitor contains two
implied elements — the exhibitor (i) must exhibit his own animal and (ii) must receive from the
public compensation for exhibiting.

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as a Hawthorn employee, Section 2.10(c) clearly prohibits Kollman, an individual
with a revoked license, from exhibiting an animal.
Attempting to avoid Section 2.10(c), Kollman invents a distinction between the
verb “exhibit,” which is included in Section 2.10(c), and the verb “present,” which is
not included in the relevant sections of the statute or the regulations. (See Doc. 49
at 13–14) Kollman argues that “exhibit,” which the statute and the regulations leave
undefined, incorporates the definition of “exhibitor.” Thus, according to Kollman,
to exhibit an animal, a person (1) must own the animal and (2) must receive
compensation directly from the public in return for exhibiting the animal. (Doc. 32
¶¶ 51–56; Doc. 49 at 13–14) Kollman argues that, if either element is absent, the
statute and regulations identify the person’s conduct not as exhibiting but rather as
presenting, an act not prohibited by Section 2.10(c).
Kollman’s argument fails because no basis for Kollman’s distinction appears in
the statute or the regulations. Rather, Section 2.10(c) states that a person — an
“individual” — with a revoked license may not exhibit an animal. Although the
regulations fail to define the verb “exhibit,” Section 1.1 provides that an undefined
word retains “the meaning attributed to [the word] in general usage as reflected by
definitions in a standard dictionary.” According to the American Heritage Dictionary
(5th ed. 2016), “exhibit” means “to present for others to see.” Thus, under
Section 2.10(c), if an “individual,” including an employee of a licensed exhibitor, has
a revoked license, the person may not “present for others to see” an animal “during

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the period of . . . revocation.” Accordingly, Kollman may not “present” the tiger act
at circuses on Hawthorn’s behalf. In other words, the statute and the regulations
define “exhibitor” as a person who exhibits to “the public for compensation” an
animal that is “purchased in commerce.” The statutory and regulatory definition of
“exhibitor” is narrower than the dictionary definition of “exhibit.” As a result, every
person who is an exhibitor exhibits but not every person who exhibits is an exhibitor.
Kollman incorrectly argues that “interpreting [Section 2.10(c)] to allow
[Kollman] to train and handle animals behind the scenes while preventing him from
showing them to crowds of people” is “inconsistent with the purpose of the AWA.”
(Doc. 34 ¶ 59; Doc. 49 at 14) Section 2.10(c) includes nothing about “training” an
animal or “handling” an animal, and Kollman fails to explain why Section 2.10(c) or
the other regulations must prohibit a person with a revoked license from engaging in
those actions. Instead, Section 2.10(c) prohibits a person with a revoked license from
buying, selling, transporting, delivering for transportation, and exhibiting an animal.
Prohibiting a person with a revoked license from these actions is consistent with the
AWA’s directive to the Secretary to promulgate regulations enforcing the statute and
with the AWA’s stated purpose of ensuring the “humane treatment” of an animal
that is “intended for exhibition” and in ensuring the “humane treatment” of an
animal “during transportation in commerce.” See 7 U.S.C. §§ 2131, 2149, 2151.

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2. Agency deference is unnecessary.
As a general rule, an agency’s interpretation of the agency’s regulation is
entitled to deference unless the interpretation is “plainly erroneous or inconsistent
with the regulation.” Zhou Hua Zhu v. U.S. Atty. Gen., 703 F.3d 1303, 1309 (11th Cir.
2013) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). Kollman argues that the
Secretary’s interpretation of Section 2.10(c) is entitled to no deference because,
between December 2012 and January 2013, the Secretary’s interpretation changed as
a result of pressure from PETA and other interest groups. (Doc. 49 at 11) However,
deference to an agency’s interpretation of the agency’s regulation is necessary “only
when the language of the regulation is ambiguous.” Zhou Hua Zhu, 703 F.3d at 1309;
accord Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292, 1303 n.12 (11th Cir. 2001).
Section 2.10(c) presents neither an ambiguity nor, consequently, an occasion to
resolve whether the Secretary’s interpretation of Section 2.10(c) warrants deference.

CONCLUSION
Accordingly, the defendants’ motion (Doc. 39) for summary judgment is
GRANTED. The clerk is directed (1) to enter a judgment for the defendants and
against Kollman, (2) to terminate any pending motion, and (3) to close the case
ORDERED in Tampa, Florida, on September 8, 2016.

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