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American Federation of Government Employees AFL-CIO v. Vilsack

United States District Court, D. Columbia.

July 31, 2015

THOMAS J. VILSACK, et al., Defendants

Page 293


For THOMAS J. VILSACK, in his official capacity as United States Secretary of Agriculture, ALFRED V. ALMANZA, in his official capacity as Administrator of the Food Safety and Inspection Service, UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD SAFETY & 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.

Plaintiff Charles Stanley Painter is a federal poultry inspector who has joined with his labor union, the American Federation of Government Employees AFL-CIO (" AFGE" ), to challenge the federal government's recent adoption of a new National Poultry Inspection System (the " NPIS" ). 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). Plaintiffs have filed the instant complaint against the Secretary of Agriculture, the Administrator of the Food Safety and Inspection Service (" FSIS" ), and the United States Department of Agriculture (" USDA" ) because, in Plaintiffs' view, the NPIS makes substantial and potentially detrimental changes to the manner in which federal inspectors like Painter and other AFGE members inspect poultry at slaughter establishments. ( See Compl., ECF No. 1, ¶ ¶ 19-20, 23-25, 60.) Specifically, although federal poultry inspectors will continue to " conduct post-mortem inspections of poultry carcasses and perform other official functions . . . for the purpose of preventing the sale of adulterated poultry and poultry products" ( id. ¶ 12), there will be fewer federal inspectors posted on the slaughter line, faster line speeds, and more substantial involvement by employees of the poultry establishments in the federal inspection process under the NPIS, see 79 Fed.Reg. 49,567. Plaintiffs assert that the NPIS thus effectively " prevents the inspection by inspectors" of the viscera and carcass of each bird processed (Compl. ¶ ¶ 84, 90), and it also eliminates federal inspector supervision of " the reprocessing of all adulterated carcasses" ( id. ¶ ¶ 91-92). Plaintiffs maintain that, as a result, " the Rule increases the risk that AFGE's employees, members, and prospective members will become ill after consuming poultry or poultry products" ( id. ¶ 17), and they have asked this Court to " [e]njoin[] the defendants from implementing the Rule insofar as it permits anything less than post-mortem inspections of the carcass and all parts thereof of each bird slaughtered" and stop Defendants " from permitting anyone other than a government inspector from exercising the statutory authority to conduct post-mortem poultry inspections" ( id. at 19).[1]

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This Court recently addressed a substantially similar challenge to the NPIS in the context of a case in which a consumer advocacy organization and several of its individual members sought a preliminary injunction to prevent implementation of the NPIS. See Food & Water Watch, Inc. v. Vilsack (" FWW" ), No. 14-cv-1547, 79 F.Supp.3d 174, 2015 WL 514389, at *1 (D.D.C. Feb. 9, 2015). The plaintiffs in FWW argued that " the revised processing procedures are inconsistent with [federal law] and will ultimately result in the production of unsafe poultry products[,]" and the defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. Id. This Court sustained the defendants' contention, holding that the plaintiffs had failed to prove that they had suffered (or imminently would suffer) " an injury-in-fact that is traceable to the actions of the Defendants and that relief from this Court can address[,]" Id. at *2, as was necessary for the Court to assure itself that it had jurisdiction to proceed on the request for a preliminary injunction.

Before this Court at present is Defendants' motion to dismiss the complaint in the instant case--a motion that makes substantially the same standing arguments as those the Court addressed in FWW. However, this Court finds that the legal analysis in this case differs from FWW in one significant respect--the plaintiffs here have not sought a preliminary injunction, and thus the injury allegations in the instant complaint must be accepted as true under the standards that apply to ordinary motions to dismiss, as explained below. That said, it is well established that because the regulation at issue here is a rule that pertains to third-party conduct and does not govern Plaintiffs directly, Plaintiffs must provide proof of the causation and redressability aspects of the standing requirement even at this early stage of the litigation. This Court finds that Plaintiffs have not done so, for the reasons explained below; therefore, Defendants' motion to dismiss will be GRANTED. A separate order consistent with this opinion will follow.


This Court's opinion in FWW describes at length the origin and contours of the NPIS, see FWW, 2015 WL 514389, at *3-5, and that description need not be repeated here. In short, under the traditional inspection system, federal inspectors conducted " organoleptic" inspections of each poultry carcass and its viscera, see Am. Fed'n of Gov't Emps., AFL-CIO v. Glickman, 215 F.3d 7, 9, 342 U.S. App.D.C. 7 (D.C. Cir. 2000), and their duties included " sorting acceptable product from unacceptable product, finding defects, identifying corrective actions, and solving production control problems[,]" 77 Fed.Reg. 4410 (Jan. 27, 2012) (to be codified at 9 C.F.R. pts. 381 and 500). With respect to these duties, slaughter establishment employees merely served as " helper[s] to take such actions as directed by the online post-mortem inspector after the inspector ha[d] conducted the initial sorting activities[,]" FWW, 2015 WL 514389, at *3 (internal quotation marks and citation omitted).

The NPIS changes the traditional poultry inspection process, largely because it permits the employees of slaughter establishments to conduct the preliminary screening of poultry carcasses, and it allows them to remove adulterated carcasses from the slaughter line without first presenting them to a federal inspector. See 79 Fed.Reg. 49,567. In addition, those birds that are presented to federal inspectors

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are met with a visual-only inspection rather than an organoleptic inspection. See id. Consequently, the NPIS requires fewer federal inspectors to be stationed along the slaughter lines than was the case under the traditional system, and it permits ...

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