Kenney v. Glickman

• Decision Date: 30 September 1996
• Docket Number: No. 95-2371,95-2371
• Parties: Delores J. KENNEY, Plaintiff/Appellant, Rosemary Behrens; Carol Hans; Madeline Meyer; David Nichols; Wayne Newton, Plaintiffs, Irvin Fox; Skip Numrich; Gerald Timmerman; Larry Martin; James Willrett; James Scott; H.T. Ringling; Richard Bell; Jan Houck; Robert Perry; Garland Dahl; John Haverhale; Jack Knirk; Bill Long; Mike Judy; Russ Dodge, Jr.; Phil Van Horne, Plaintiffs/Appellants, Robert Rebholtz, Plaintiff, Bub Miller; Scott Adamson; Paul Genho; Jim Keller; Earnie Reeves; Mark Armentrout, Plaintiffs/Appellants, v. Daniel GLICKMAN, Secretary of Agriculture, Defendant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1118

96 F.3d 1118

Delores J. KENNEY, Plaintiff/Appellant Rosemary Behrens; Carol Hans; Madeline Meyer; David Nichols; Wayne Newton, Plaintiffs Irvin Fox; Skip Numrich; Gerald Timmerman; Larry Martin James Willrett; James Scott; H.T. Ringling; Richard Bell Jan Houck; Robert Perry; Garland Dahl; John Haverhale; Jack Knirk; Bill Long; Mike Judy; Russ Dodge, Jr.; Phil Van Horne, Plaintiffs/Appellants, Robert Rebholtz, Plaintiff, Bub Miller; Scott Adamson; Paul Genho; Jim Keller; Earnie Reeves; Mark Armentrout, Plaintiffs/Appellants, v. Daniel GLICKMAN, Secretary of Agriculture, Defendant/Appellee.

No. 95-2371.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1995.

Decided Sept. 30, 1996.

James M. Kefauver, Rockville, MD, argued (Alan B. Sternstein, Rockville, MD, and Wythe Willey, Cedar Rapids, IA, on the brief), for appellant.

Andrea M. Sharrin, Dept. of Justice, Washington, DC, for appellee.

Before McMILLIAN and BEAM, Circuit Judges, and PERRY, ^* District Judge.

PERRY, District Judge.

Delores Kenney and fellow poultry consumers appeal from the district court's order dismissing this action for failure to state a claim. Because we find that the challenged actions and inactions of the Secretary of Agriculture are reviewable, we reverse and remand to the district court for a determination of whether the Secretary abused his discretion.

I.

The original plaintiffs, poultry consumers and red meat producers, brought an action against appellee Daniel Glickman, Secretary of Agriculture, ¹ challenging certain aspects of the Department of Agriculture's regulatory scheme governing meat and poultry processing. The district court held that the poultry consumers had standing to challenge the Secretary's actions, but the red meat producers did not have standing. The red meat producers did not appeal that part of the district court's order. With respect to the poultry consumers, the district court granted the Secretary's motion to dismiss for failure to state a claim, holding that the actions and decisions of the Secretary of Agriculture challenged by appellants are not subject to judicial review. The poultry consumers have appealed that determination.

Appellants challenge certain actions and inactions by the Secretary of Agriculture regarding the processing of poultry. The Secretary is responsible for implementing both the Poultry Products Inspection Act ("PPIA"), 21 U.S.C. § 451 et seq., and the Federal Meat Inspection Act ("FMIA"), 21 U.S.C. § 601 et seq. The stated objectives and bases of the two Acts are identical: to protect the health and welfare of consumers and to eliminate the burdens on interstate commerce that result from the distribution of unwholesome, adulterated or mislabeled products. With respect to the health of consumers, both parties provided statistics regarding the large number of contaminated meat and poultry carcasses processed each year and the negative consequences resulting from human consumption of the contaminated carcasses. In light of the identical goals of the two Acts, appellants allege that the Secretary has issued contradictory requirements for the inspection and cleaning of meat and poultry, and that the Secretary has improperly allowed water absorbed during processing to remain in poultry.

The processing of meat and poultry begins with the removal of certain parts of the carcasses. The carcasses and parts are then either sold or processed further. Because both meat and poultry are sold by weight, any moisture added during processing increases the value of the carcass. Similarly, any trimming of the carcass during processing to remove contaminants reduces the value of the carcass. To further the goals of the PPIA and FMIA, the regulations require ante- and post-mortem inspections of the livestock and poultry processed for human food. In technical terms, the purpose of the inspections is to ensure that the carcasses are not "adulterated" or "misbranded." The definitions of those two terms are nearly identical under the two Acts.

Individual meat and poultry carcasses are inspected during processing, and carriers of E. coli and other pathogens are removed. The well-known contaminants that carry pathogens are feces, ingesta and milk. If contaminants are found on an individual meat or poultry carcass, the regulations require processors to remove the contaminants. The regulations refer to this as "zero tolerance" with respect to individual carcasses. After the individual carcasses have been inspected and reprocessed as necessary, the inspector reinspects sample carcasses selected from the entire lot to determine whether there was a "process defect" that may have caused contaminants to exist on carcasses in that particular lot. Before March 1993, the regulations established a tolerance slightly above zero with respect to process defects in both poultry and meat. In other words, if the number of defects discovered on the sample carcasses was less than the tolerance level, the entire lot could proceed. If the defects exceeded the tolerance level, the entire lot failed and corrective action was required.

In March 1993, the Secretary issued directives to operators and inspectors of beef slaughter plants. ² The directives--which affected meat but not poultry--lowered the tolerance level for process defects to zero. The directives did not affect the tolerance level for individual carcasses, i.e., the tolerance for contaminants on individual carcasses remains zero for both meat and poultry. The tolerance level for process defects in poultry remains slightly above zero. In other words, a certain level of contaminants discovered in poultry during the process inspection is acceptable and the lot will not be returned for reprocessing.

In addition to the different standards of tolerance for process defects, the methods of contaminant removal approved by the Secretary also differ between meat and poultry. The regulations governing inspections require meat processors to trim or otherwise actually remove the contaminated tissue, while the regulations allow poultry processors to "water wash" the contaminated portion of the carcass.

Appellants challenge the Secretary's decisions with respect to (1) the "zero tolerance" for process defects in meat but not poultry and (2) the regulations allowing poultry processors to water wash rather than trim contaminants. Appellants contend that the Secretary should either issue the same regulations for poultry and meat or provide a legally sufficient reason for treating meat and poultry differently.

Finally, appellants challenge certain water-retention regulations governing poultry. The regulations governing water absorbed during processing differ between meat and poultry. The meat regulations prohibit processors from adding water and other substances to a meat carcass during processing. Poultry carcasses, on the other hand, may absorb and retain an average of eight percent increase over the weight of the carcass before final washing. Appellants challenge this regulation on two grounds. First, irrespective of the meat regulations, appellants allege that the Secretary has violated the Poultry Act's prohibitions against "adulterated" and "misbranded" carcasses by allowing water retention in poultry. Second, appellants allege that the Secretary has acted arbitrarily and capriciously by allowing retention of water in poultry but not in meat.

II.

The district court held that none of the Secretary's challenged actions or inactions are reviewable. With respect to the zero tolerance and contaminant removal standards, the court looked to the introductory language of the PPIA and held that "that statute has been drawn so broadly that there is no standard available for judging how and when the agency should exercise its discretion." Likewise, the court held that decisions regarding retention of water during poultry processing are "left completely to the discretion of the Secretary." We review the district court's decision de novo. Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979).

The Administrative Procedure Act (APA) is the starting point for a discussion of reviewability of an agency action. The APA provides that any person "adversely affected or aggrieved" by a "final agency action for which there is no other adequate remedy" is generally entitled to judicial review. 5 U.S.C. §§ 702, 704. ³ There are two exceptions to the general rule of reviewability: (1) where the statute explicitly precludes judicial review, and (2) where "agency action is committed to agency discretion by law." Id. § 701(a). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court noted that the second exception was "very narrow" and that "it is applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' " Id. at 410, 91 S.Ct. at 821 (footnote omitted) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). The Court again discussed the second exception to reviewability in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). In Chaney, the Court created a rebuttable presumption that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion" under § 701(a)(2) of the APA. Chaney, 470 U.S. at 831, 105 S.Ct. at 1655.

In this case, neither party contends that any of the three challenged actions are explicitly precluded from judicial review by statute, and therefore the first exception to reviewability does not apply. Appellee contends that its regulations regarding zero tolerance and contaminant removal are enforcement decisions that are presumptively unreviewable under Chaney. Appellants contest the characterization of...