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Food & Water Watch, Inc. v. Vilsack

United States District Court, D. Columbia.

February 9, 2015

FOOD & WATER WATCH, INC., et al., Plaintiffs,
THOMAS J. VILSACK, in his official capacity as the U.S. Secretary of Agriculture, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For FOOD & WATER WATCH, INC., Plaintiff: Zachary B. Corrigan, FOOD & WATER WATCH, Washington, DC.

For THOMAS J. VILSACK, In his official capacity as the U.S. Secretary of Agriculture, BRIAN RONHOLM, In his official capacity as the Deputy Under Secretary for Food Safety, U.S. Dept. of Agriculture, ALFRED V. ALMANZA, In his official capacity as the Administrator of the Food Safety Inspection Service U.S. Dept. of Agriculture, U.S. DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND INSPECTION SERVICE, Defendants: Carol Federighi, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.


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KETANJI BROWN JACKSON, United States District Judge.

The Poultry Products Inspection Act (" PPIA" ), 21 U.S.C. § § 451-472 (2012), requires the United States Department of Agriculture (" USDA" ) to protect consumer health and welfare by ensuring that poultry products are wholesome and not adulterated, and are also properly marked, labeled, and packaged. See 21 U.S.C. § § 451, 455, 457. To carry out this mission, the USDA's Food Safety and Inspection Service (" FSIS" ) has traditionally promulgated regulations that require federal inspectors to be stationed at fixed points along the slaughter lines within poultry-processing establishments and that also mandate that the federal inspectors themselves control and direct the inspection process, including using sight, touch, and smell to inspect each poultry carcass that travels down the line, with the assistance of the establishments' employees. See Modernization of Poultry Slaughter Inspection, 77 Fed.Reg. 4408, 4410 (proposed Jan. 27, 2012) (describing the traditional inspection system). As part of a recent effort to modernize the federal poultry inspection process, however, the FSIS has adopted a new inspection system that permits the employees of poultry-processing establishments to take a more active role in the inspection process. See Modernization of Poultry Slaughter Inspection, 79 Fed.Reg. 49,566 (Aug. 21, 2014) (to be codified at 9 C.F.R. pts. 381 and 500) (describing the new inspection system). Under the new National Poultry Inspection System (" NPIS" ), far fewer federal inspectors need be stationed along the

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slaughter lines, and the employees themselves can conduct a preliminary screening of the carcasses before presenting the poultry to a federal inspector for a visual-only inspection. See id. at 49567. Seeking to challenge these new inspection procedures, two individual-plaintiff poultry consumers and an organization, Food & Water Watch, Inc. (collectively, " Plaintiffs" ) have filed the instant action--accompanied by a motion for a preliminary injunction--against the USDA and its Secretary, the Deputy Under Secretary for Food Safety, the FSIS, and the Administrator of the FSIS (collectively, " Defendants" ). ( See Compl., ECF No. 1; Pls.' Mot. for Prelim. Inj. (" Pls.' Mot." ), ECF No. 3.) According to Plaintiffs, this Court should issue a preliminary and permanent injunction that prevents the USDA and FSIS from implementing the NPIS because the revised processing procedures are inconsistent with the PPIA and will ultimately result in the production of unsafe poultry products. ( See Compl. ¶ 1; Pls. Mot. at 10-13.)[1]

Before this Court at present is Plaintiffs' motion for a preliminary injunction. While this Court has no doubt about the sincerity of Plaintiffs' belief that the regulation adopting the NPIS is a bad rule that will lead to unwholesome poultry products, the Court is also fully cognizant of its limited power to address Plaintiffs' concerns under the circumstances presented here. That is, because Plaintiffs have filed this suit in a court of limited jurisdiction, they must demonstrate at the outset that they have, or will have, an injury-in-fact that is traceable to the actions of the Defendants and that relief from this Court can address. This Court concludes that Plaintiffs have failed to mount this hurdle. Whatever the merits of the allegation that the new poultry-processing regulation is a policy that the USDA should never have adopted, this Court finds that such " injury" is precisely the type of generalized grievance that Article III courts are not empowered to consider. Consequently, Plaintiffs do not have standing to bring this lawsuit and the instant case must be DISMISSED in its entirety for lack of subject matter jurisdiction, as explained below. A separate order consistent with this memorandum opinion will follow.


A. The Poultry Products Inspection Act And Its Regulations

The PPIA, which Congress enacted in 1957, establishes a scheme for federal inspection of poultry slaughterhouses. The FSIS administers the PPIA, see 7 C.F.R. § § 2.18(a)(1)(ii)(A), 2.53(a)(2)(i), and prior to the new rules that are the subject of this case, the FSIS's regulations provided for four inspection systems for poultry production, each of which required federal inspectors to be stationed within poultry-processing establishments in both an " offline" and an " online" capacity. 77 Fed.Reg. 4410.[2] Under the traditional inspection rules, offline inspectors perform activities like verifying the establishment's adherence to food safety regulations, verifying the effectiveness of the establishment's sanitation procedures, and collecting samples for pathogen testing. See id. By contrast, online inspectors stand at fixed points along the slaughter line (after the viscera have been separated from the inside of the poultry carcass) and examine every carcass, with its viscera. See id.; 9 C.F.R. § 381.76(b);

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see also 21 U.S.C. § 455(b).[3]

Notably, under the traditional poultry inspection systems, online federal inspectors conduct " organoleptic" inspections of poultry carcasses and viscera, meaning that inspectors use sight, touch, and smell to examine the poultry carcasses, see 9 C.F.R. § 381.76 (effective to Oct. 21, 2014), and this inspection technique is employed primarily for the purpose of determining whether or not the processed poultry carcasses are " adulterated," 21 U.S.C. § 455(c). The relevant statutory section provides that poultry is adulterated if it " contains any poisonous or deleterious substance" ; is " filthy, putrid, or decomposed" ; " has been prepared, packed, or held under insanitary conditions" ; " has died otherwise than by slaughter" ; or " is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food." Id. § 453(g). If a federal inspector finds that a poultry carcass is adulterated within the meaning of the statute, the inspector " condemns" the carcass ( i.e., the carcass is " destroyed for human food purposes under the supervision of an inspector" ). Id. § 455(c).[4] Conversely, if the federal inspector finds that a carcass is not adulterated, the inspector affixes an official inspection legend on the item or its container, labeling the poultry as " Inspected for wholesomeness by U.S. Department of Agriculture." See 21 U.S.C. § 457; 9 C.F.R. § 381.96. False or misleading labeling is proscribed by the PPIA. 21 U.S.C. § 457(c).

Significantly, the regulations that govern the traditional poultry inspection systems make clear that the poultry processing establishment's employees are not responsible for the " sorting" function-- i.e., " determin[ing] which eviscerated carcasses appear eligible to bear the mark of inspection, which carcasses contain removable defects correctable through trimming or reprocessing, and which carcasses must be condemned because of septicemic and toxemic animal diseases." 77 Fed.Reg. 4410. Rather, " sorting acceptable product from unacceptable product, finding defects, identifying corrective actions, and solving production control problems" is the duty of the online federal inspectors, and the poultry establishment merely provides " a helper to take such actions as directed by the online post-mortem inspector after the inspector has conducted the initial sorting activities." Id.

B. Changes In The Federal Poultry Inspection System

The new inspection system that is at issue in the instant case--referred to

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throughout this opinion as " the NPIS" --substantially alters the traditional roles that online federal inspectors play vis-à-vis establishment employees in a manner that Plaintiffs argue is both inconsistent with the statutory scheme and potentially harmful to human health. Specifically, as explained further below, the NPIS relieves federal inspectors of the duty to sort poultry carcasses--leaving that task to establishment personnel--and places only one online federal inspector at the end of the slaughter line to whom the sorted and reprocessed birds are presented for final inspection. Although Plaintiffs characterize the NPIS as " an unprecedented elimination of inspection resources" (Compl. ¶ 1), in the agency's view, the restructured inspection roles means that " FSIS [can] assign fewer inspectors to online inspection, freeing up Agency resources to conduct offline inspection activities that are more important for food safety, such as verifying compliance with sanitation and [other] requirements, or conducting Food Safety Assessments[,]" 77 Fed.Reg. 4410-11.

The final rule states that the NPIS is the culmination of decades of agency research regarding effective poultry processing systems, and that the NPIS reflects an intentional shift of federal inspection resources away from post -processing organoleptic review of poultry carcasses--which the traditional poultry inspection system relies upon and which, according to the agency, made sense at a time " when visually detectable animal diseases were more prevalent and considered to be more of a concern than they are today," id. at 4411--and toward stricter pre -processing controls, which, the agency says, are more important than ever in detecting the kind of microbial contamination that causes food borne human illness today, see id. Stated simply, since at least the 1990s, the USDA has been concerned that the traditional poultry inspections systems " obscure the proper roles of industry and inspection personnel[,]" and " require FSIS to allocate significant inspection personnel resources towards inspection activities to detect defects and conditions that present minimal food safety risks, thus limiting the resources available for more important food safety-related inspection activities." Id. at 4410; see also Pathogen Reduction; Hazard Analysis and Critical Control Points (HACCP) Systems, 60 Fed.Reg. 6774 (proposed February 3, 1995) (declaring that " there is a critical gap" in the traditional inspection program because it " does not directly target pathogenic microorganisms" or " make meat and poultry establishments legally responsible for taking systematic, preventive measures to reduce or eliminate the presence of pathogenic microorganisms in meat and poultry products" ). Thus, the FSIS has spent the better part of the past two decades developing and evaluating various alternative poultry inspection systems designed to translate this new philosophy into practice. Compare id. (proposing a new inspection system in 1995) with 79 Fed.Reg. 49,566 (announcing final rule in 2014 and describing the agency's research and development of the rule).

One of those initiatives is especially relevant here. In 1996, the FSIS promulgated a rule--entitled the " Pathogen Reduction/Hazard Analysis and Critical Control Points" (HACCP) rule--that required poultry establishments to " develop and implement a system of preventive controls to ensure that their products are safe" while permitting " FSIS [to] verif[y] the adequacy and effectiveness of establishments' HACCP systems." 77 Fed.Reg. 4413; see also Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP) Systems, 61 Fed.Reg. 38,806 (July 25, 1996). The FSIS also developed the HACCP-Based Inspection Models Project

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(" HIMP" )--a pilot project that was first implemented in a few volunteer poultry slaughter establishments. The HIMP pilot required establishment employees to perform all of the tasks related to sorting and addressing abnormal poultry carcasses, subject to mere " oversight" and " verification" by federal inspectors, and in this regard, was dramatically different than the traditional inspection systems. See Am. Fed'n of Gov't Emps., AFL-CIO v. Glickman (" AFGE I " ), 215 F.3d 7, 9, 342 U.S.App.D.C. 7 (D.C. Cir. 2000). That is, whereas under the traditional systems the federal inspectors are posted on the slaughter line to sort and inspect each carcass, under the HIMP pilot, the federal inspection role was limited to " observing establishment personnel as they process carcasses" and " randomly sampl[ing] and examin[ing] carcasses that have been passed to determine if the establishment is complying with the relevant performance standards." Id. at 10.

In the year 2000, the D.C. Circuit held that the original HIMP model was inconsistent with the PPIA, see AFGE I, 215 F.3d at 11, and the FSIS returned to the drawing board.[5] The agency then established and implemented of a modified HIMP pilot that, like the subsequent NPIS, permitted establishment employees to sort and process the carcasses but required a federal inspector to examine each bird that the employees processed. This modified HIMP pilot survived subsequent judicial review, see Am. Fed'n of Gov't Emps., AFL-CIO v. Veneman (" AFGE II " ), 284 F.3d 125, 130-31 (D.C. Cir. 2002)[6]; and the FSIS then expanded the program, implementing the modified HIMP program in twenty young chicken slaughter establishments and five young turkey slaughter establishments around the country, and collecting and analyzing data from these test programs, see 77 Fed.Reg. 4414. The agency formally presented its evaluation of this data in a 2011 report that, as relevant here, concluded that " HIMP has improved the safety of poultry products and increased overall consumer protection while

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still ensuring carcass-by-carcass inspection of each eviscerated carcass." Id.; see also USDA, Evaluation of HACCP Inspection Models Project at 7 (Aug. 2011) (hereinafter, " the 2011 HIMP Analysis" ) (explaining that " an inspection system based on the HIMP system in which establishments are responsible for sorting and identifying unacceptable carcasses and parts before an online FSIS inspector performs a visual carcass-by-carcass inspection will ensure an equivalent, if not better, level of food safety and other consumer protection" ).

Thus, it was primarily on the basis of the agency's findings from its experience with the HIMP pilot program that the FSIS issued a notice of proposed rulemaking in 2012 announcing the agency's consideration of the new " National Poultry Inspection System" that Plaintiffs challenge in the instant action. See 77 Fed.Reg. 4421 (" Based on the Agency's experience under HIMP and the improved performance related to food safety and non-food-safety standards and especially in reducing pathogen levels, FSIS is proposing . . . the New Poultry Inspection System." ). As mentioned above and as relevant here, the proposed changes to the regulations that govern poultry processing directly affected slaughter line procedures and included: (1) a requirement that establishment personnel sort carcasses and present the finished poultry to one federal inspector at the end of slaughter line, and (2) an increase in the maximum line speed to 175 birds per minute. An extended notice and comment period followed, along with meetings with consumer advocacy organizations, trade associations, and the National Advisory Committee on Meat and Poultry Inspection, see Modernization of Poultry Slaughter Inspection Proposed Rule; Extension of Comment Period, 77 Fed.Reg. 24,873 (Apr. 26, 2012); 79 Fed.Reg. 49570, and on August 21, 2014, the FSIS adopted a final NPIS-related rule, which went into effect on October 20, 2014, shortly after Plaintiffs filed the complaint and preliminary injunction in this case. See 79 Fed.Reg. 49,566. Notably, the final rule adopting the NPIS differs from the rule proposed during the notice and comment period in that the final rule increased the line speed to only 140 birds per minute, and the final rule made adoption of the NPIS system optional, insofar as it provided each establishment with an opportunity either to retain the traditional inspection system or to convert to the NPIS.[7]

C. Plaintiffs' Alleged Interest In Challenging The NPIS

As mentioned, Plaintiffs vigorously object to the FSIS's promulgation of the NPIS rules. According to the complaint, Plaintiff " FWW is a national, non-profit, public interest, consumer advocacy organization that works to ensure safe food and clean water." (Compl. ¶ 5.) A sworn declaration that Plaintiffs have submitted as an exhibit to the preliminary injunction maintains that " FWW has worked on poultry inspection issues . . . since its inception as an organization in November 2005" (Decl. Patricia Lovera--Assistant Director of FWW--(" Lovera Decl." ), Ex. 6 to Pls.' Mot., ECF No. 3-6, ¶ 4), and that " [p]art and parcel [of FWW's] mission has been advocating for strong federal inspection rules that comply with the [PPIA]" ( id. ¶ 5). Allegedly, " FWW has advocated against HIMP and NPIS," and plans to continue advocating against NPIS in the future. ( Id. ¶ ¶ 6, 10-13.)

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Margaret Sowerwine, Jane Foran, Alina Pittman, and Wendy Davis are among FWW's 70,000 members. ( See Compl. ¶ 6.) These individuals are also people who purchase and eat poultry. ( See Decl. Margaret Sowerwine (" Sowerwine Decl." ), Ex. 3 to Pls.' Mot., ECF No. 3-3, ¶ 4; Decl. Jane Foran (" Foran Decl." ), Ex. 2 to Pls.' Mot., ECF No. 3-2 ¶ 3; Decl. Alina Pittman (" Pittman Decl." ), Ex. 5 to Pls.' Mot., ECF No. 3-5, ¶ 3; Decl. Wendy Davis (" Davis Decl." ), Ex. 4 to Pls.' Mot., ECF No. 3-4 ¶ 3.) Sowerwine, Foran, Pittman, and Davis assert that the UDSA inspection label on the poultry sold in grocery stores means to them that someone in the federal government has inspected the poultry and that it meets federal standards for safety and quality. ( See Sowerwine Decl. ¶ 5; Foran Decl. ¶ 7; Pittman Decl. ¶ 5; Davis Decl. ¶ 4.) Insofar as the NPIS rules have altered the traditional post-mortem federal poultry inspection process, Sowerwine, Foran, Pittman, and Davis are now purportedly worried that the poultry products produced under NPIS rules do not meet federal safety standards and thus may make them and their family members sick. ( See Sowerwine Decl. ¶ 9; Foran Decl. ¶ 11; Pittman Decl. ¶ 9; Davis Decl. ¶ 8.) These poultry consumers also state that, in order to avoid this perceived increased risk of illness, they will change their shopping habits and may stop eating poultry altogether. ( See Sowerwine Decl. ¶ 10; Foran Decl. ¶ ¶ 12-13; Pittman Decl. ¶ 10; Davis Decl. ¶ 9.)

In addition, Sowerwine, Foran, Pittman, and Davis claim that they were not aware of the possibility that the final NPIS rules would include a line speed of 140 birds per minute and an opt-in system. ( See Sowerwine Decl. ¶ 7; Foran Decl. ¶ 14; Pittman Decl. ¶ 11; Davis Decl. ¶ 10.) These poultry consumers claim that, if they had been aware of these facts, they would have communicated their views to the agency on these points. ( See Sowerwine Decl. ¶ ¶ 11-12; Foran Decl. ¶ ¶ 14-15; Pittman Decl. ¶ ¶ 11-12; Davis Decl. ¶ ¶ 10-11.) Moreover, if USDA had set up public meetings to discuss the NPIS in their communities, these poultry consumers claim that they would have taken advantage of that opportunity to express their objections to the NPIS orally. ( See Sowerwine Decl. ¶ 13; Foran Decl. ¶ 16; Pittman Decl. ¶ 13; Davis Decl. ¶ 12.)

D. Procedural History

On September 11, 2014, Sowerwine, Foran, and FWW filed the instant complaint against Defendants to challenge implementation of the NPIS regulations. ( See generally Compl.) The gravamen of their complaint is that the NPIS is " an unprecedented elimination of inspection resources for a secret set of young chicken and turkey slaughterhouses" that will ultimately " threat[en] public health and introduc[e] unwholesome poultry into interstate commerce." ( Id. ¶ 1.) Even more specifically, Plaintiffs argue that (1) the NPIS violates the PPIA because the NPIS eliminates inspection requirements that Plaintiffs believe are mandatory under the PPIA ( see Compl. ¶ 187-209 (claims 1, 2, 3, 4, and 5)); (2) the NPIS violates the PPIA because the rules establishing the NPIS were finalized without opportunity for oral presentation of views ( see id. ¶ 210-13 (claim 6)); and (3) the NPIS violates the APA both because the rules establishing the NPIS were finalized without adequate notice and opportunity for public comment and because the rules are arbitrary and capricious ( see id. ¶ 214-20 (claims 7 and 8)). Plaintiffs not only request a permanent injunction, they also seek to enjoin all of Defendants' NPIS rules from taking effect preliminarily, while the Plaintiffs' legal action is being adjudicated. ( See generally

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Pls.' Mot.)[8] Defendants have filed an opposition to Plaintiffs' motion for a preliminary injunction, arguing inter alia that " [P]laintiffs' allegations do not establish the necessary concrete and actual or imminent injury to confer Article III jurisdiction on this Court." (Defs.' Mem. in Opp. to Pls.' Mot. for Prelim. Inj. (" Defs.' Opp." ), ECF No. 15, 11.) This Court held a hearing on Plaintiffs' motion on October 17, 2014. ( See Minute Entry dated 10/17/14.)


A party seeking a preliminary injunction " must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). " Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." 11A Charles Alan Wright, Arthur Miller, & Mary Kane, Federal Practice & Procedure § 2948.1 (3d ed.). Thus, " a movant must demonstrate at least some injury for a preliminary injunction to issue," and " [a] movant's failure to show any irreparable harm is . . . grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297, 372 U.S.App.D.C. 94 (D.C. Cir. 2006) (internal quotation marks and citation omitted).

The requirement of injury is also essential to a plaintiff's ability to sustain an action in federal court, even when no emergency or preliminary relief is being requested. This is because, as explained below, a plaintiff in a federal lawsuit must have " standing" to sue--a status that is based in part on a legally redressable injury-in-fact--and the lack of standing is a defect that relates directly to a federal court's subject matter jurisdiction.

Stepping back briefly to explain the foundations of the standing requirement, it is well established that the Constitution's " Cases" and " Controversies" limitation, U.S. Const. art. III § 2, cl. 1, has two purposes: " [i]n part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The standing doctrine is primarily ...

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