Food & Water Watch, Inc. v. Vilsack

Citation79 F.Supp.3d 174
Decision Date09 February 2015
Docket NumberCivil Action No. 14–cv–1547KBJ
PartiesFood & Water Watch, Inc., et al., Plaintiffs, v. Thomas J. Vilsack, in his official capacity as the U.S. Secretary of Agriculture, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Zachary B. Corrigan, Food & Water Watch, Jeffery Sawyer Gulley, Government Accountability Project, Washington, DC, for Plaintiffs.

Carol Federighi, U.S. Department of Justice, Washington, DC, for Defendants.


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 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) ; 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 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...

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