Food & Water Watch, Inc. v. Vilsack

• Decision Date: 22 December 2015
• Docket Number: No. 15–5037.,15–5037.
• Parties: FOOD & WATER WATCH, INC., et al., Appellants v. Thomas J. VILSACK, in his Official Capacity as the U.S. Secretary of Agriculture, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

808 F.3d 905

FOOD & WATER WATCH, INC., et al., Appellants

v.Thomas J. VILSACK, in his Official Capacity as the U.S. Secretary of Agriculture, et al., Appellees.

No. 15–5037.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 22, 2015.

Decided Dec. 22, 2015.

Zachary B. Corrigan argued the cause and filed the briefs for appellants.

Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent H. Cohen Jr., Acting U.S. Attorney, and Mark B. Stern, Attorney. Adam C. Jed, Attorney, entered an appearance.

Before: HENDERSON, MILLETT and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS. Opinion concurring in the judgment filed by Circuit Judge HENDERSON. Concurring opinion filed by Circuit Judge MILLETT.

WILKINS, Circuit Judge:

Margaret Sowerwine and Jane Foran, individual consumers of poultry, and Food & Water Watch, Inc. ("FWW"), their organizational advocate, fear that new regulations promulgated by the United States Department of Agriculture ("USDA") may result in an increase in foodborne illness from contaminated poultry. To prevent the regulations from going into effect, Plaintiffs sought declaratory and injunctive relief. The District Court concluded that Plaintiffs failed to demonstrate an injury in fact and dismissed Plaintiffs' claims for lack of standing.

On appeal, Plaintiffs argue that the District Court applied an incorrect standard in finding that they lacked standing. According to Plaintiffs, once the appropriate standard is applied, their complaint and evidence show: (1) the Individual Plaintiffs, Margaret Sowerwine and Jane Foran, and FWW members have shown an increase in the risk of harm sufficient to establish an injury in fact; (2) FWW has shown an injury to its interest and expenditures made in response to that injury sufficient to establish an injury in fact; and (3) Plaintiffs have suffered a procedural injury sufficient to establish an injury in fact for purposes of standing. Although the District Court applied the incorrect standard to evaluate Plaintiffs' standing, the District Court nonetheless correctly ruled that Plaintiffs have not alleged a sufficient injury to establish standing under the appropriate standard. Accordingly, we affirm.

I.

The Poultry Products Inspection Act ("PPIA"), 21 U.S.C. §§ 451 –472, was born out of a Congressional interest in protecting consumer health and welfare by enabling the Secretary of Agriculture ("Secretary") to ensure that poultry products were "wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. § 451. The PPIA accomplishes this goal, in part, by requiring the Secretary to ensure that inspectors¹ conduct a post-mortem inspection of all poultry processed for human consumption. Id. § 455(b). The PPIA also requires condemnation and destruction for human food purposes of all poultry that is found to be adulterated, unless the poultry can be reprocessed under an inspector's supervision so that it is found to be not adulterated. Id. § 455(c). The PPIA defines "adulterated" to include various conditions, including containing, among other things, "any poisonous or deleterious substance which may render it injurious to health"; various additives that are unfit for human consumption; consisting in whole or in part of any "filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food"; or packaging in conditions where it "may have been rendered injurious to health." Id. § 453(g). Carcasses that pass inspection receive an official legend indicating that it was inspected by the USDA. Id. § 453(h)(12); 9 C.F.R. § 381.96.

The Food Safety and Inspection Service ("FSIS") administers the PPIA. See 7 C.F.R. §§ 2.18(a)(1)(ii)(A), 2.53(a)(2)(i). Historically, FSIS has permitted chicken and turkey—the poultry products of concern to Plaintiffs—to be inspected under one of four inspection systems: the Streamlined Inspection System, the New Line Speed Inspection System, the New Turkey Inspection System, and traditional inspection (collectively, "the existing inspection systems"). Modernization of Poultry Slaughter Inspection, 77 Fed.Reg. 4408, 4410 (proposed Jan. 27, 2012). Under the existing inspection systems, FSIS inspectors perform either an online or offline role. See id. Offline inspectors ensure compliance with food safety regulations, verify sanitation procedures, and collect samples for pathogen testing. See id. One or more online FSIS inspectors inspect each poultry carcass with its viscera² immediately following the separation of the viscera from the carcass. See id. Under the existing inspection systems, the inspectors conduct an "organoleptic" inspection, using sight, touch, and smell to evaluate the carcasses. See Brief for Appellees, Food & Water Watch, Inc. v. Vilsack, No. 15–5037 (D.C. Cir.), Doc. No. 1553589, at 3; see also 77 Fed.Reg. at 4410 (noting that inspectors "examine each eviscerated carcass for visual defects"). Poultry establishment personnel do not conduct any sorting or evaluation of carcasses; the poultry establishments provide a "helper" who takes action only upon an FSIS inspector's direction. 77 Fed.Reg. at 4410.

The inspection method at issue in this case, the New Poultry Inspection System ("NPIS"), alters the responsibilities of the FSIS inspectors and the establishment personnel. The NPIS rules institutionalize the shift from inspector-based sorting and evaluation to establishment-based sorting and evaluation. Under the NPIS, poultry establishment personnel sort the poultry carcasses and take corrective action prior to an FSIS inspection. See id. at 4421.

The NPIS grew out of FSIS's concern that agency resources were not being used in the most effective way to ensure food safety. See id. at 4410. In an effort to develop new methods to more effectively inspect poultry, in 1996 FSIS promulgated the "Pathogen Reduction/Hazard Analysis and Critical Control Points" ("HACCP") rule. Id. at 4413 ; Pathogen Reduction; Hazard Analysis and Critical Control Points, 61 Fed.Reg. 38806 (July 25, 1996). HACCP required poultry establishments to develop controls to ensure product safety and empowered the establishments to make their own determinations about how to meet the FSIS regulatory requirements. 77 Fed.Reg. at 4413. FSIS subsequently announced an HACCP-based inspection models project ("HIMP") that would allow FSIS to test and develop new inspection models. HACCP–Based Meat and Poultry Inspection Concepts, 62 Fed.Reg. 31553 (June 10, 1997). The pilot HIMP method made poultry establishment personnel "responsible for identifying and removing normal from abnormal carcasses and parts." 77 Fed.Reg. at 4413.

The HIMP pilot was challenged as a violation of the PPIA because FSIS inspectors did not inspect poultry carcasses themselves, leaving all inspection to establishment personnel with FSIS oversight. Am. Fed'n of Gov't Empls., AFL–CIO v. Glickman (AFGE I ), 215 F.3d 7, 9–10 (D.C.Cir.2000). This Court held that such delegation violated the PPIA. Id. at 11. In response to AFGE I, "FSIS modified HIMP to position one inspector at a fixed location near the end of the slaughter line in each poultry slaughter establishment" who was responsible for evaluating each carcass after establishment personnel had sorted and processed it. 77 Fed.Reg. at 4413. The modified HIMP program was also challenged, and this Court held that the program did not violate the PPIA. Am. Fed'n of Gov't Empls., AFL–CIO v. Veneman, 284 F.3d 125, 130–31 (D.C.Cir.2002). However, we cautioned that "[i]f the USDA undertakes a rulemaking to adopt as a permanent change something along the lines of the modified program, experience with the program's operation and its effectiveness will doubtless play a significant role" and warned that our opinion "may not necessarily foreshadow the outcome of judicial review of such future regulations." Id. at 130–31.

Twenty young chicken and five turkey establishments participated in HIMP, and FSIS collected and analyzed the data from these establishments. 77 Fed.Reg. at 4414. Using this data, FSIS concluded that the HIMP procedures "improved performance related to food safety and non-food-safety standards ... especially in reducing pathogen levels" and proposed the NPIS to replace the existing inspection systems, excluding the traditional inspection system. Id. at 4421. Under the proposed NPIS rule, "establishments [would] be required to sort carcasses, to dispose of carcasses that must be condemned, and to conduct any necessary trimming or reprocessing activities before carcasses are presented to the online FSIS carcass inspector." Id. The carcasses would pass along a production line for the online inspector at a speed of 175 birds per minute for young chickens, and 55 birds per minute for turkeys. Id. at 4423. While establishment personnel sort carcasses, FSIS inspectors would reallocate their time by increasing offline inspection activities. Id. at 4420, 4422. FSIS projected that 99.9% of young chickens and poultry would be produced under the NPIS. Id. at 4436. After a notice and comment period, FSIS adopted a final NPIS rule with a number of modifications, which included making adoption of the NPIS optional, and lowering the birds per minute speed of young chickens to 140 birds per minute.

Modernization of Poultry Slaughter Inspection, 79 Fed.Reg. 49566, 49570 (Aug. 21, 2014).

On September 11, 2014, Plaintiffs filed their complaint in this case, claiming that the NPIS constitutes "an unprecedented elimination of inspection resources for a secret set of young chicken and turkey slaughterhouses." Compl. ¶ 1, J.A. 9. In this spirit, Plaintiffs alleged eight claims against Defendants: (1) violation of 21 U.S.C. § 455(c) by allowing condemnation of young chicken and turkey carcasses by NPIS...