FARM SANCTUARY v. US Department of Agriculture

• Docket Number: 6:20-CV-06081 EAW
• Decision Date: 28 March 2023
• Citation: 664 F.Supp.3d 334
• Parties: FARM SANCTUARY, Animal Legal Defense Fund, Animal Outlook, Animal Welfare Institute, Compassion in World Farming, Farm Forward, and Mercy for Animals, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Food Safety and Inspection Service, Thomas Vilsack, in his official capacity as Secretary of Agriculture, and Paul Kiecker, in his official capacity as Food Safety and Inspection Service Administrator, Defendants.
• Court: U.S. District Court — Western District of New York

664 F.Supp.3d 334

FARM SANCTUARY, Animal Legal Defense Fund, Animal Outlook, Animal Welfare Institute, Compassion in World Farming, Farm Forward, and Mercy for Animals, Inc., Plaintiffs, v.UNITED STATES DEPARTMENT OF AGRICULTURE, Food Safety and Inspection Service, Thomas Vilsack, in his official capacity as Secretary of Agriculture, and Paul Kiecker, in his official capacity as Food Safety and Inspection Service Administrator, Defendants.

6:20-CV-06081 EAW

United States District Court, W.D. New York

Signed March 28, 2023

Jessica L. Blome, Greenfire Law, PC, Berkeley, CA, for Plaintiffs Farm Sanctuary, Animal Outlook, Animal Welfare Institute, Compassion in World Farming, Farm Forward, Mercy for Animals, Inc.

Holly Bainbridge, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, Jessica L. Blome, Greenfire Law, PC, Berkeley, CA, for PlaintiffAnimal Legal Defense Fund.

Hannah M. Solomon-Strauss, U.S. Department of Justice — Civil Division, Washington, DC, Michael Andrew Zee, U.S. DOJ Civil Division, San Francisco, CA, for Defendants United States Department of Agriculture, Food Safety and Inspection Service, Thomas Vilsack, Paul Kiecker.

DECISION & ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

Plaintiffs Farm Sanctuary, Animal Legal Defense Fund, Animal Outlook, Animal Welfare Institute, Compassion in World Farming, Farm Forward, and Mercy for Animals, Inc.(hereinafter collectively "Plaintiffs") are nonprofit organizations working to protect animals, people, and environments from industrial animal agriculture, and to ensure that laws intended to regulate industrial animal agriculture are properly implemented.They challenge certain actions by defendantsUnited States Department of Agriculture("USDA"), Food Safety and Inspection Service ("FSIS"), USDA Secretary, and FSIS Inspector (hereinafter collectively "Defendants") related to the slaughtering of pigs under the Administrative Procedure Act,5 U.S.C. § 551 et seq.(the "APA").

Presently pending before the Court are the following motions: (1)Plaintiffs' First Motion for Judicial Notice(Dkt. 51); (2)Plaintiffs' Motion to Complete the Administrative Record (Dkt. 56); and (3)the parties' Cross-Motions for Summary Judgment(Dkt. 52(Plaintiffs' Motion for Summary Judgment) & Dkt. 60(Defendants' Motion for Summary Judgment)).For the reasons explained below, Plaintiffs' Motion to Complete the Administrative Record (Dkt. 56) is granted; Plaintiffs' Motion for Judicial Notice(Dkt. 51) is denied; Defendants' Motion for Summary Judgment(Dkt. 60) is granted; and Plaintiffs' Motion for Summary Judgment(Dkt. 51) is denied.

BACKGROUND AND PROCEDURAL HISTORY

On February 6, 2020, Plaintiffs sued Defendants, challenging their failure to ban the slaughter of all non-ambulatory¹ or "downed" pigs.(Dkt. 1).Plaintiffs' amended complaint alleges three causes of action: (1) failure to investigate and report to Congress on downed pigs, in violation of the Humane Methods of Slaughter Act, 7 U.S.C. § 1901 et seq.("the HMSA") and APA; (2) failure to regulate the humane treatment, handling, and disposition of downed pigs, in violation of the HMSA and APA; and (3) arbitrary and capricious denial of Plaintiffs' Petition for Rulemaking (hereinafter, the "Petition"), in violation of the APA.(SeeDkt. 13at 36-38).

Defendants filed a motion to dismiss the amended complaint for lack of jurisdiction.(Dkt. 14).On June 28, 2021, following briefing and oral argument, the Court denied Defendants' motion to dismiss.(SeeDkt. 26;Dkt. 32).Defendants answered the amended complaint (Dkt. 34), and the case was referred to United States Magistrate Judge Marian W. Payson for pretrial matters (Dkt. 35).

Defendants filed the administrative record on December 9, 2021.(Dkt. 40).On December 21, 2021, Judge Payson granted Plaintiffs' request to extend the deadline for filing any motion challenging the adequacy of the administrative record until January 12, 2022.(Dkt. 41).No such motion was filed, and Defendants filed a revised administrative record on January 12, 2022.(Dkt. 43).The parties also filed a stipulated scheduling order for the filing of cross-motions for summary judgment.(Dkt. 45;Dkt. 46).

Plaintiffs filed their Motion for Summary Judgment and Motion for Judicial Notice on March 18, 2022.(Dkt. 51;Dkt. 52).Defendants responded to Plaintiffs' Motion for Judicial Notice on April 7, 2022.(Dkt. 54).On April 18, 2022, Plaintiffs filed their Motion to Complete the Administrative Record (Dkt. 56), and Defendants responded to that motion on April 21, 2022(Dkt. 57).Defendants filed their Cross-Motion for Summary Judgment and opposition to Plaintiffs' Motion for Summary Judgment on June 7, 2022.(Dkt. 60).Plaintiffs responded to Defendants' Motion for Summary Judgment on August 8, 2022(Dkt. 61), and Defendants filed their reply papers on September 19, 2022(Dkt. 62).

The Court held oral argument on February 14, 2023(Dkt. 63;Dkt. 66), at which time it ordered the parties to submit supplemental briefing regarding the issue of standing and reserved decision.Plaintiffs filed their supplemental brief regarding standing on February 27, 2023(Dkt. 67), and Defendants filed their response thereto on March 10, 2023(Dkt. 68).

DISCUSSION

I.Motion to Complete Administrative Record (Dkt. 56)

The Court turns first to Plaintiffs' Motion to Complete the Administrative Record, filed on April 18, 2022.(Dkt. 56).Plaintiffsrequest to supplement the administrative record with four exhibits attached to a November 1, 2016 supplement letter from Mercy for Animals, which were submitted in connection with Plaintiffs' Petition and unintentionally omitted from the revised administrative record filed on January 12, 2022, so that the Court may consider these materials in evaluating the cross-motions for summary judgment.(SeeDkt. 56-1at 2).Defendants state in their response that although Plaintiffs' request to supplement the administrative record is untimely, they do not oppose the requested relief, and informed Plaintiffs that they could cite to the exhibits in their summary judgment briefing, given that these materials were considered by the USDA in responding to the Petition.(SeeDkt. 57at 1).Based upon the parties' agreement on this issue, and the fact that the materials were before the USDA when it considered the Petition, the Court grants Plaintiffs' Motion to Complete the Administrative Record.(Dkt. 56).

II.Motion for Judicial Notice(Dkt. 51)

On the same date they filed their Motion for Summary Judgment, Plaintiffs also filed a Motion for Judicial Notice, asking that the Court take judicial notice of the USDA Office of Inspector General(OIG) Audit Report 24016-0001-23: Food Safety and Inspection Service Followup on the 2007 and 2008 Audit Initiatives, dated June 2017(the "2017 OIG Report"), under Federal Rule of Evidence 201(b).(SeeDkt. 51;see alsoDkt. 51-2at 4-129).Plaintiffs contend that in the 2017 OIG Report, the OIG determined that "FSIS'[s] enforcement policies do not deter swine slaughter plants from becoming repeat violators" of the Federal Meat Inspection Act, 21 U.S.C. § 601 et seq.("FMIA") and the HMSA and, "[a]s a result, plants have repeatedly violated the same regulations with little or no consequence" and that "FSIS could not ensure humane handling of swine."(SeeDkt. 51-1at 3).Plaintiffs argue that, despite this relevant information, Defendants did not include the 2017 OIG Report in the administrative record.Plaintiffs contend that Defendants' omission demonstrates that they did not consider any of the relevant factors contained in the report as they analyzed the Petition, arguing that the Court should take judicial notice of the 2017 OIG Report, so it may consider whether Defendants abused their discretion when they failed to consider their own agency reporting regarding the need for improved regulation and oversight of humane handling of pigs, in violation of Section 706 of the APA.(Id. at 3-4).Plaintiffs further argue that, as to Federal Rule of Evidence 201, the 2017 OIG Report is on Defendants' official website and therefore "is not subject to reasonable dispute," as it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."(Id. at 4-5).

In response, Defendants argue that Plaintiffs never sought to supplement the record to include the 2017 OIG Report, and their deadline to dispute the administrative record "came and went" and therefore the request is untimely.(Dkt. 54at 5-6).Defendants further argue that courts have rejected the use of Rule 201 as an end-run around the presumption of completeness that attaches to the government's certification of an administrative record.(Id. at 4-5);seeSilver State Land, LLC v. Beaudreau,59 F. Supp. 3d 158, 172(D.D.C.2014)("Judicial notice is 'typically an inadequate mechanism' for a court to consider extra-record evidence in reviewing an agency action.").Defendants also argue that the exception for consideration of extra-record evidence does not apply because the 2017 OIG Report is not necessary to permit judicial review into whether the agency failed to consider the inhumane treatment of non-ambulatory pigs at slaughterhouses, and also because there is no dispute that the USDA did not consider the 2017 OIG Report in denying the Petition.(Id. at 6-7).Finally, Defendants contend that Plaintiffs' substantive use of the OIG report is improper, because when a court in an APA case considers extra-record evidence that was not before the agency, doing so to determine the correctness of the agency's decision is not permitted.(Id. at 7);see alsoAsarco, Inc. v. EPA,616 F.2d 1153, 1160(9th Cir.1980)("If the reviewing court finds it necessary to go outside the administrative record, it should consider evidence relevant to the substantive merits of the agency action only for background information ... or for the limited purposes of...