United Food & Commercial Workers Union v. U.S. Dep't of Agric., Case No. 19-cv-2660 (JNE/TNL)

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: JOAN N. ERICKSEN, United States District Judge
• Citation: 451 F.Supp.3d 1040
• Parties: UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 663, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
• Decision Date: 01 April 2020
• Docket Number: Case No. 19-cv-2660 (JNE/TNL)

451 F.Supp.3d 1040

UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 663, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

Case No. 19-cv-2660 (JNE/TNL)

United States District Court, D. Minnesota.

Signed April 1, 2020

451 F.Supp.3d 1044

Adam R. Pulver, Pro Hac Vice, Public Citizen Litigation Group, Sarai King, Pro Hac Vice, United Food and Commercial Workers (UFCW), Nandan M. Joshi, Pro Hac Vice, Litigation Group, Washington, DC, Timothy J. Louris, Miller O'Brien Jensen, P.A., Minneapolis, MN, for Plaintiffs.

David W. Fuller, United States Attorney's Office, Minneapolis, MN, Joseph DeMott, Pro Hac Vice, Leslie Cooper Vigen, Pro Hac Vice, DOJ, Washington, DC, for Defendant.

ORDER

JOAN N. ERICKSEN, United States District Judge

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Four labor unions filed this lawsuit against the United States Department of Agriculture ("USDA") to challenge a Food Safety and Inspection Service ("FSIS") rule that establishes a New Swine Slaughter Inspection System ("NSIS"). The rule reduces the number of FSIS inspectors on the production line and eliminates line speed limits in swine slaughterhouses. Alleging that these changes will harm slaughterhouse employees, Plaintiffs filed this action under the Administrative Procedure Act ("APA"). They argue that the rule is arbitrary and capricious and violates the statute authorizing FSIS's oversight of slaughterhouses. USDA moved to dismiss for lack of Article III standing and failure to state a claim under the APA.

For the reasons stated below, Plaintiffs lack Article III standing to challenge the rule based on the reduction in FSIS inspectors. Plaintiffs have standing to challenge the rule for its elimination of line speeds and have stated a claim under the APA on that basis. Therefore, Defendant's motion is denied with respect to the line speed claim and granted with respect to the remaining claims.

BACKGROUND

The Federal Meat Inspection Act ("FMIA"), 21 U.S.C. §§ 601 – 94, requires the FSIS, a subdivision of USDA, to inspect all animals that will become meat products. FSIS inspectors must first assess all animals prior to slaughter. 21 U.S.C. § 603(a) ; Modernization of Swine Slaughter Inspection, 83 Fed. Reg. 4780, 4783 (Feb. 1, 2018) ("Proposed Rule"). Most slaughterhouses voluntarily segregate animals that appear obviously unfit for consumption, which allows FSIS to inspect only the animals the facility has deemed appropriate for slaughter. 21 U.S.C. § 604 ; Proposed Rule, at 4783. After slaughter, FSIS inspectors assess swine before and after they are sent along the production line. Id. The production line moves carcasses on chains past workers who trim meat off the animals. Pl. Mem., at 8.

After slaughter but before swine are placed on the line, slaughterhouse workers do not typically assess the animals to identify and remove correctable defects or to flag carcasses that should be condemned. Id. FSIS inspectors must conduct this time-intensive sorting, which slows down inspection and leaves less time to inspect apparently healthy carcasses for invisible defects. Id. at 4784–85. Inspectors conduct a visual inspection to identify signs of condemnable diseases or conditions of the head, viscera, and carcass of each swine. Id. ; Compl. ¶ 23.¹ For animals found fit for consumption, FSIS inspectors conduct an examination that includes testing for foodborne pathogens, like salmonella. Proposed Rule, at 4783–84.

In 1996, FSIS adopted a new framework of inspection to ensure slaughterhouses

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produced safe meat products: the Hazard Analysis and Critical Control Point System ("HACCP"). Id. at 4780. FSIS then launched a pilot program, the HACCP-Based Inspection Models Project ("HIMP"), that sought to improve problems in meat and poultry slaughterhouses. Id. HIMP tried to make inspection more efficient by empowering slaughterhouses to sort swine post-slaughter, giving FSIS inspectors more time to locate foodborne pathogens instead of identifying obviously defective carcasses. Id. at 4780–81.

The first HIMP model FSIS proposed did not involve an examination of each animal carcass by FSIS inspectors, which the D.C. Circuit found violated the FMIA. See Am. Fed'n of Gov't Emps., AFL-CIO v. Glickman (AFGE I), 215 F.3d 7, 11 (D.C. Cir. 2000). FSIS then modified HIMP to ensure an inspection of each carcass by federal agents, which the court found complied with the FMIA. Am. Fed'n of Gov't Emps., AFL-CIO v. Glickman (AFGE II), 284 F.3d 125, 130–31 (D.C. Cir. 2002).

In 2013, the USDA Office of Inspector General ("OIG") audited HIMP and concluded that FSIS had not adequately overseen the program, potentially increasing food safety risks. See Proposed Rule, at 4788 n.5 (citing OIG, USDA, Inspection and Enforcement Activities at Swine Slaughter Plants (2013), https://www.usda.gov/oig/webdocs/24601-0001-41.pdf ("OIG Report")). It also found that three of the five HIMP plants had the highest noncompliance records in the industry. See OIG Report, at 19. The Government Accountability Office ("GAO") similarly reviewed HIMP, finding that FSIS had not adequately evaluated it and that it led to faster line speeds, creating food and worker safety concerns. See Proposed Rule, at 4788 n.4 (citing GAO, More Disclosure and Data Needed to Clarify Impact of Changes to Poultry and Hog Inspections (2013), https://www.gao.gov/assets/gao-13-775.pdf ("GAO Report")). In response, USDA evaluated the HIMP program but did not address worker safety concerns raised in the GAO report. See Proposed Rule, at 4788–89.

In February 2018, USDA published a notice of proposed rulemaking ("NPRM") that proposed an optional program, the NSIS, that would replicate three features tested in the HIMP pilot: (1) requiring slaughterhouses to conduct ante- and post-mortem sorting to remove defective or contaminated animals; (2) reducing the number of FSIS line inspectors, which would allow FSIS to increase offline inspections; and (3) revoking line speed limits and allowing slaughterhouses to set their own speeds. Proposed Rule, at 4781. FSIS sought comments on these features, but also requested comment on the effects the program may have on worker safety. Id. at 4796. In the NPRM, FSIS claimed that HIMP facilities had lower worker injury rates but did not release the underlying data that supported this conclusion. Id.

On October 1, 2019, FSIS issued a final rule adopting the regulations proposed in the NPRM. Modernization of Swine Slaughter Inspection, 84 Fed. Reg. 52,300 (Oct. 1, 2019) ("Final Rule"). In the preamble to the Final Rule, FSIS addressed concerns raised by labor and public health organizations related to the reduction of line FSIS inspectors. Final Rule, at 52,312. These commenters had noted that by reducing line inspectors, FSIS would not be able to adequately conduct a "critical appraisal" of all carcasses, as required by the FMIA. Id. ; see AFGE I , 215 F.3d at 11. FSIS responded to these comments by affirming that it would still inspect all animals sold for consumption. Final Rule, at 52,312. It emphasized that it would meet this obligation with fewer inspectors because

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slaughterhouses would conduct pre-inspection sorting and remove some carcasses from the line, reducing the number of animals needing inspection. Id. at 52,312. Additionally, it noted that FSIS would be able to more effectively conduct offline inspections for pathogens because fewer of its agents would be required on the line. Id.

Several commenters also addressed the elimination of maximum line speeds. Citing Bureau of Labor Statistics data and studies by the Occupational Safety and Health Administration ("OSHA") and GAO, commenters noted that eliminating the line speed limits would be harmful to workers, increase injury rates, and reduce the quality of meat products. Id. FSIS responded by asserting that it had "neither the authority nor the expertise to regulate issues related to establishment worker safety" under the FMIA or the Egg Products Inspection Act, 21 U.S.C. §§ 1301 et seq. See id. at 52,315. Instead, FSIS noted that OSHA has the statutory authority to regulate worker safety in slaughterhouses. Id. While FSIS agreed that worker safety is important, it stated that it was compelled by law to only regulate food safety, not establishment worker safety. Id. Despite this assertion, the Final Rule requires NSIS establishments to submit an annual attestation to the local FSIS safety committee confirming that they have a worker safety program. Id. FSIS will forward these attestations to OSHA and work with OSHA to improve worker safety, following the terms of an agreement between the agencies. See OSHA, Memorandum of Understanding Between OSHA and FSIS (Feb. 2, 1994), https://www.osha.gov/laws-regs/mou/1994-02-04.

Three local labor unions and one international union representing swine slaughterhouse workers filed this lawsuit under the APA challenging the reduction in FSIS line inspectors and the elimination of line speed limits. See 5 U.S.C. § 706. The local unions represent workers at four swine processing plants in Minnesota, Iowa, Missouri, and Oklahoma. Id. ¶¶ 10–12. Each plant is one FSIS identified as likely to increase its line...