A nationwide injunction from Rochester … about cows

 In a case now pending before the U.S. Supreme Court, the justices are considering the scope of birthright citizenship under the 14^th Amendment and also the power of federal district court judges to issue nationwide injunctions. Putting aside for the moment the issue of birthright citizenship, the case brings back memories for me of nearly 40 years ago when, as a young lawyer, I helped bring a lawsuit in federal court here in Rochester that resulted in a nationwide injunction.

That the case was about cows—specifically, whether the government could force dairy farmers to brand their cows on the face with a hot iron—didn’t lessen the media’s interest. When the late Judge Michael Telesca issued his injunction on April 16, 1986, the story made national news: in New York Times (“Judge Bars Branding Cows With Hot Irons as Cruel”), in the Washington Post (“Face-Branding Barred”), and the Los Angeles Times (“Judge Rules U.S. Can’t Force Farmers to Brand Cows on Face”). ABC Evening News and other broadcasters also ran with the story.         

Here’s how this unusual case came about.

To keep up the price farmers received for milk by reducing the nation’s dairy herd, U.S. Department of Agriculture Secretary Richard Lyng—an appointee of President Ronald Reagan—sought to buy up and slaughter or export about 10 percent of the national herd, or about 1. 5 million cows. The department issued a rule requiring that cows sold for the buyout program be branded on the face with a hot iron to prevent them from being sold back illegally to other farmers.

I was living in Rochester at that time, but having recently worked in Washington, D.C., as an attorney for the Humane Society of the U.S., I knew that animal advocates saw hot-iron face-branding as cruel. The question was how to stop it in the short time before the program took effect.

 Then, one morning, reading the Democrat and Chronicle, I noticed a brief letter to the editor from a dairy farmer in Alfred. He said he owned a small herd of dairy cows,  would like to participate in the federal buyout program, but didn’t want to cause his cows the pain that branding them on the face with a hot-iron would cause.

There, I thought, was a potential plaintiff—someone with a personal stake in the case who clearly would have legal standing to sue in federal court. I drove to the town in Allegany County and obtained a signed affidavit from the farmer, enlisted the Humane Society of Rochester as a co-plaintiff (humane societies in New York have police powers to enforce anti-cruelty laws), and met the late Henry Dutcher, Rochester Humane’s general counsel. Henry, in turn, introduced me to Rochester attorney Joseph H. Gordon.  Joe, far more experienced than I was in litigation, took the lead in preparing the case.

A few days later, on April 4, 1986, in response to our filing, Telesca issued a temporary restraining order that blocked the Department of Agriculture program nationally until a full hearing on the merits could be scheduled in a week or two.

As I recall, the TRO didn’t get much attention—I don’t think the issue was yet on the national media’s radar. Just as well: We had a lot to prepare for and not much time in which to do it.

The key to our case was finding an alternative way for farmers to mark their cows that would be more humane than hot-iron branding and also practical. We soon learned of one: freeze-branding. In freeze-branding, a branding iron is submerged in liquid nitrogen until it reaches a very low temperature and then is applied to the cow for about a minute, resulting in permanent hair loss. This method causes measurably less distress to a cow; the animal may react to a freeze-brand for a few seconds but then quiets as the surrounding skin becomes numb.

To prepare for the upcoming hearing, we lined up a series of expert witnesses, among them: two professors of veterinary medicine, one from Cornell and the other from Virginia Tech; the executive director, Frank Rogers, and the chief cruelty officer, Ron Storm, of the Humane Society of Rochester; the president of the A.S.C.P.A; and our dairy farmer plaintiff.  

We raised funds from five national animal protection groups to cover costs, including transportation and accommodations for witnesses.

When we returned to Telesca’s court for the hearing on the injunction, I remember feeling a bit like David and Goliath because not only were we facing the local assistant U.S. attorney but two senior lawyers from the U.S. Department of Justice who flew in from Washington, D.C.

As it happened, Henry Dutcher and Joe Gordon did an outstanding job of presenting our case.

After the two-day hearing, we didn’t have to wait long for a decision. The very next day, April 16, 1986, we were told to return to court because the judge was ready to issue his ruling. As Joe Gordon and I entered the courthouse, we happened to see Telesca in a hallway. After some 40 years I can’t be sure I’m quoting the judge correctly, but my memory is that he glanced our way and said, “You two caused me a lot of lost sleep over this case.” 

Joe and I weren’t sure if that was good news or bad news for our case, but then in the courtroom Telesca announced his ruling. “It has long been the public policy of this country to avoid unnecessary cruelty to animals,” he noted, and the government’s face-branding rule was “arbitrary and capricious” because it “entirely failed to consider” the question of animal cruelty. Further, he found that “freeze-branding is a viable alternative to hot-iron branding since it causes less pain to cows and accomplishes all of the objectives” of the government’s program. “Had (the government) truly been concerned with preventing unnecessary cruelty to animals,” he wrote “they would have at least allowed farmers the option of either method.”

In conclusion, the judge ruled that the government is “enjoined from enforcing the hot-iron facial branding provisions of the United States Department of Agriculture” rule.

You can find Telesca’s full opinion here: Humane Soc. of Rochester & Monroe Cty. v. Lyng, 633 F. Supp. 480 (W.D.N.Y. 1986).

Now, the national media paid attention. As I noted, stories about the case—often with puns about cows—were all over the news.

After all the fuss, the government chose not to appeal the injunction and instead issued a new rule allowing dairy farmers the option of marking their cows by freeze-branding.

Those who object to local federal courts issuing nationwide injunctions point to at least two problems with the practice: first, that plaintiffs often “judge shop” i.e. they look for judges sympathetic to the political aims of their case and then file the case in that judge’s district; second, for a single, unelected judge to block—even temporarily—key aspects of a political program on which a president ran and was elected, seems to thwart the democratic process.

In our cow-branding case, neither of these factors applied. We didn’t judge shop; we brought the case in Rochester, in the Western District of New York, because that’s where I happened to live and where our key plaintiff, the dairy farmer, lived. And while preventing cruelty to animals is an important issue, the aim of our case certainly wasn’t to thwart any key public policies on which Reagan ran and was elected.  

On the other hand, I’m glad we were able to win a nationwide injunction: to have prevented cruelty only to animals in Western New York and not elsewhere in the country would have been unfair, and to have been required to bring the same case in each of the country’s hundreds of district courts would have been impractical.   

So, my bottom line on whether nationwide injunctions should be allowed is: I’m not sure; it’s a hard call and one I’m glad to leave to the Supreme Court to figure out. But I’m glad, too, that the issue is in the news gain because it jogged my memory of an interesting case long ago right here in Rochester.

Peter Lovenheim is Washington correspondent for the Rochester Beacon. He is author of “In the Neighborhood” and other works. His most recent book, “Gift Shop of Gratitude,” was published in 2024. He can be reached at [email protected].

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