Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, AFL- )
CIO, et al. , )
)
Plaintiffs, )
) v. ) Civil Action No. 14-cv-1753 (KBJ) )
THOMAS J. VILSACK, et al. , )
)
)
Defendants. )
) MEMORANDUM OPINION
Plaintiff Charles Stanley Painter is a federal poultry inspector who has joined with his labor union, the American Federation of Government Employees AFL-CIO (“AFGE”), to challenge the federal government’s recent adoption of a new National Poultry Inspection System (the “NPIS”). 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). Plaintiffs have filed the instant complaint against the Secretary of Agriculture, the Administrator of the Food Safety and Inspection Service (“FSIS”), and the United States Department of Agriculture (“USDA”) because, in Plaintiffs’ view, the NPIS makes substantial and potentially detrimental changes to the manner in which federal inspectors like Painter and other AFGE members inspect poultry at slaughter establishments. ( See Compl., ECF No. 1, ¶¶ 19–20, 23–25, 60.) Specifically, although federal poultry inspectors will continue to “conduct post-mortem inspections of poultry *2 carcasses and perform other official functions . . . for the purpose of preventing the sale of adulterated poultry and poultry products” ( id. ¶ 12), there will be fewer federal inspectors pоsted on the slaughter line, faster line speeds, and more substantial involvement by employees of the poultry establishments in the federal inspection process under the NPIS, see 79 Fed. Reg. 49,567. Plaintiffs assert that the NPIS thus effectively “prevents the inspection by inspectors” of the viscera and carcass of each bird processed (Compl . ¶¶ 84, 90), and it also eliminates federal inspector supervision of “the reprocessing of all adulterated carcasses” ( id . ¶¶ 91–92). Plaintiffs maintain that, as a result, “the Rule increases the risk that AFGE’s employees, members, and prospective members will become ill after consuming poultry or poultry products” ( id. ¶ 17), and they have asked this Court to “[e]njoin[] the defendants from implementing the Rule insofar as it permits anything less than post-mortem inspections of the carcass and all parts thereof of each bird slaughtered” and stop Defendants “from permitting anyone other than a government inspector from exercising the statutory authority to conduct post-mortem poultry inspections” ( id . at 19). [1]
This Court recently addressed a substantially similar challenge to the NPIS in the context of a case in which a consumer advocacy organization and several of its individual members sought a preliminary injunction to prevent implementation of the NPIS. See Food & Water Watch, Inc. v. Vilsack (“ FWW ”), No. 14-cv-1547, 2015 WL 514389, at *1 (D.D.C. Feb. 9, 2015). The plaintiffs in argued that “the revised processing procedures are inconsistent with [federal law] and will ultimately result in the production of unsafe poultry products[,]” and the defendants moved to dismiss the *3 complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. Id. This Court sustained the defendants’ contention, holding that the рlaintiffs had failed to prove that they had suffered (or imminently would suffer) “an injury-in-fact that is traceable to the actions of the Defendants and that relief from this Court can address[,]” id. at *2, as was necessary for the Court to assure itself that it had jurisdiction to proceed on the request for a preliminary injunction.
Before this Court at present is Defendants’ motion to dismiss the complaint in the instant case—a motion that makes substantially the same standing arguments as those the Court addressed in FWW . However, this Court finds that the legal analysis in this case differs from FWW in one significant respect—the plaintiffs here have not sought a preliminary injunction, and thus the injury allegations in the instant complaint must be accepted as true under the standards that apply to ordinary motions to dismiss, as explained below. That said, it is well established that because the regulation at issue here is a rule that pertains to third-party conduct and does not govern Plaintiffs directly, Plaintiffs must provide proof of the causation and redressability aspects of the standing requirement even at this early stage of the litigation. This Court finds that Plаintiffs have not done so, for the reasons explained below; therefore, Defendants’ motion to dismiss will be GRANTED . A separate order consistent with this opinion will follow.
I. BACKGROUND
This Court’s opinion in
FWW
describes at length the origin and contours of the
NPIS,
see
,
The NPIS changes the traditional poultry inspection process, largely because it permits the employees of slaughter establishments to conduct the preliminary screening of poultry carcasses, and it allows them to remove adulterated carcasses from the slaughter line without first presenting them to a federal inspector. See 79 Fed. Reg. 49,567. In addition, those birds that are presented to federal inspectors are met with a visual-only inspection rather than an organoleptic inspection. See id . Consequently, the NPIS requires fewer federal inspectors to be stationed along the slaughter lines than was the case under the traditional system, and it permits a faster rate of inspection by federal inspectors. See id . [2]
Plaintiffs dislike the NPIS and seek to stop its imрlementation. ( See Compl. ¶ 8.) On the merits, Plaintiffs argue that the Court should invalidate the NPIS because *5 the rule is inconsistent with the Poultry Products Inspection Act (“PPIA”) ( see id . ¶¶ 89–93), and, as a threshold matter, Plaintiffs argue that they have Article III standing to challenge the NPIS because the NPIS will “increase the risk that adulterated poultry products will be sold to and consumed by the public[,]” including AFGE members like Painter. ( Id. ¶ 5; see also id. ¶¶ 21–22 (claiming that, as a consumer of poultry products, “Painter’s health and welfare are likely to be adversely affected” due to the increased risk caused by the Rule); Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”), ECF No. 14, at 17 (“Plaintiffs are consumers of poultry and are injured by FSIS’s abdication of its statutory responsibility to inspect the carcass of each bird processed because FSIS’s adoption of the [R]ule creates a substantial probability that plaintiffs will be harmed by consuming unwholesome and adulterated poultry.”).) [3] Defendants’ motion to dismiss for lack of subject matter jurisdiction seizes on the fact that, like the plaintiffs in FWW , Painter and AFGE have not offered any concrete evidence to support their contentiоn that the NPIS will increase the risk that Painter and other AFGE members will consume adulterated poultry products, maintaining that establishes that Plaintiffs do not have Article III standing because their “amorphous, unsubstantiated assertions about increased risk are . . . too speculative to establish the necessary concrete, particularized, and imminent ‘injury-in-fact[.]’” (Defs.’ Mem. in 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[.]”) (internal quotation marks, citation, and alterations omitted)).
[3] In this same vein, Plaintiffs also assert that AFGE employees and members might become ill after consuming adulterated chicken “at an AFGE-sponsored event[,]” and as a result, AFGE is likely to face an “increased risk of litigation.” (Compl. ¶ 18). Because this alleged injury-in-fact necessarily relies on people becoming ill from consuming adulterated poultry, it is an extension of the same type of injury alleged elsewhere in the complaint, and the Court does not distinguish between these allegations for the purpose of its standing analysis.
Supp. of Defs.’ Mot. to Dismiss, ECF No. 12-1, at 11; see also Defs.’ Reply in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. 16, at 2.)
For the reasons that follow, this Court concludes that Defendants’ legal reasoning misses the mark in this context, but that Plaintiffs’ complaint must nevertheless be dismissed for lack of Article III standing, because Plaintiffs have failed to prove causation and redressability, as is required in this case.
II. ANALYSIS
A. Applicable Standing Standards
The requirement that a plaintiff have standing to sue is rooted in the
Constitution’s “Cases” and “Controversies” limitation, U.S. Const. art. III, § 2, cl. 1,
which restricts federal courts to answering questions that are presented “in an adversary
context and in a form historically viewed as capable of resolution through the judicial
process” in order “to assure that the federal courts will not intrude into areas committed
to the other branches of government.”
FWW
,
It is well established that Article III standing has three basic elements: injury-in-
fact, causation, and redressability.
See Defenders of Wildlife
,
Significantly for present purposes, “each element [of standing] must be
supported in the same way as any other matter on which the plaintiff bears the burden
of proof,
i.e.
, with the manner and degree of evidence required at the successive stages
of the litigation.”
Id.
at 561. Thus, at the pleading stage, “‘general factual allegations
of injury resulting from the defendant’s conduct may suffice,’ and the court ‘presum[es]
that general allegations embrace the specific facts that are necessary to support the
claim.’”
Renal Physicians Ass’n v. U.S. Dep’t of Health and Human Servs.
, 489 F.3d
1267, 1273 (D.C. Cir. 2007) (quoting
Sierra Club v. Envtl Protection Agency
, 292 F.2d
895, 898 (D.C. Cir. 2002)) (
see also Defenders of Wildlife
,
B. Plaintiffs Need Not Prove That They Have Suffered, Or Will Imminently Suffer, The Alleged Injury-In-Fact At This Stage Of The Instant Litigation
Defendants insist that “[i]n light of
FWW
, and its disсussion of the law of
standing in this Circuit as it relates to speculative allegations about generalized harms
from the operation of the NPIS, the present case must be dismissed.” (Defs.’ Reply at
2.) Defendants’ contention is understandable, given that the instant complaint
challenges the same government action (the NPIS) and makes substantially the same
allegations of injury. However, Defendants have seemingly overlooked one significant
distinction between the instant case and the circumstances in
FWW
: in
FWW
, this Court
stressed that the plaintiffs needed to meet the evidentiary burden required to establish
standing at the summary judgment stage because the plaintiffs sought a preliminary
injunction.
See FWW
,
C. Because The Actions Of A Regulated Third Party Are At Issue,
Plaintiffs Must Prove Causation And Redressibility In Order To
Establish Standing, And They Have Failed To Do So
Despite the fact that Plaintiffs’ allegations regarding their purported injury-in-
fact as a result of the challenged rule must be accepted as true for the purpose of
Defendants’ motion to dismiss, this Court finds that Plaintiffs nevertheless bear the
burden of prоving causation and redressability in order to establish that they have
standing to bring this case.
See Defenders of Wildlife
,
Put another way, case law makes clear that when “[t]he existence of one or more
of the essential elements of standing ‘depends on the unfettered choices made by
independent actors not before the courts and whose exercise of broad and legitimate
discretion the courts cannot presume either to control or to predict,’ the plaintiff must
‘adduce facts showing that those choices have been or will be made in such manner as
to produce сausation and permit redressability of injury.’” ,
This all means that the causation and redressability aspects of the Article III
standing inquiry are “substantially more difficult to establish” if a third party who is not
before the court is the direct cause of the рlaintiff’s alleged injury.
Defenders of
Wildlife
,
Plaintiffs here suggest that the instant case fits into this “otherwise illegal”
category of cases because, “[a]bsent the [NPIS] Rule, it would be unlawful for poultry
establishments to distribute poultry that was not subject to carcass-by-carcass fеderal
inspection[.]” (Pls.’ Opp’n at 23.) But this contention is a conclusion of law (so this
Court need not accept it,
see Arpaio v. Obama
,
The second category of third-party regulation cases in which standing is said to exist is “where the record present[s] substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Nat’l Wrestling Coaches Ass’n. , 366 F.3d at 940. A plaintiff has standing in this second category of cases only if he or she can show “formidable evidence” making “causation so clear that redressability inexorably follows.” Id. at 942. And this Court has little doubt that Plaintiffs have failed to mount the “formidable evidence” hurdle here. Painter and AFGE have offered two affidavits—one from Plaintiff Painter and the other from AFGE president David Cox— and in these testaments, the declarants state only that Painter and Cox consume poultry , and that, in their experience, “federal inspection of the carcass, including viscera, of *14 each bird processed is vital to protecting the health and welfare of both [themselves] and poultry consumers.” (Decl. of Charles Stanley Painter, ECF No. 14-2, ¶ 11); the affidavits do not speak to the likelihood that the NPIS will increase the risk that adulterated poultry will be produced. For example, Plaintiffs not have provided evidence that the increase in the maximum slaughter line speed will make it too difficult for federal inspеctors to conduct an adequate visual inspection of poultry destined for consumption by Plaintiffs, such that more adulterated poultry will enter the stream of commerce. Nor do Plaintiffs’ affidavits show that poultry establishment employees are worse than federal inspectors at determining when poultry is adulterated, or that the reduction in the number of federal inspectors will increase the likelihood that adulterated poultry will leave the slaughterhouse en route to Plaintiffs’ neighborhood fast food restaurant.
Indeed, fаr from establishing a close causal connection between the NPIS and the
entry of adulterated poultry products into the marketplace, Plaintiffs have presented
only wholly unsubstantiated speculation, such as the bald assertion that the NPIS
“threatens the health and safety of [AFGE] members . . . because it prevents
government inspectors from inspecting the carcass of each bird processed by private
poultry establishments.” (Decl. of David J. Cox, Sr., ECF No. 14-1, ¶ 9;
see also
Compl. ¶ 17.) Not only do such contentions seemingly conflict with the actual
experience of the FSIS during the pilot project that the agency conducted prior to its
promulgation of the NPIS rule,
see FWW
,
In short, Plaintiffs have provided no concrete evidence—much less substantial evidence—that the NPIS rule will actually cause more adulterated poultry to be released into the marketplace than would otherwise be the case. Consequently, Pl aintiffs have failed to meet their burden of proof with respect to the causation and redressability elements of the Article III standing requirement, and this Court lacks jurisdiction to proceed to the merits of Plaintiffs’ complaint.
III. CONCLUSION
Although Defendants argue fervently that this Court should rely on to dismiss the instant action for lack of subjеct matter jurisdiction, Painter and AFGE have alleged facts that, if accepted as true, would likely satisfy the injury-in-fact requirement for Article III standing. ( See, e.g. , Compl. ¶ 17 (“the [NPIS] Rule increases the risk that AFGE’s employees, members, and prospective members will become ill after *16 consuming poultry or poultry products.”).) However, Plaintiffs have not offered substantial evidence demonstrating the causation and redressability components of Article III standing with respect to their theory of injury, and it is clear beyond cavil that they must do so because they are seeking to challenge a rule that regulates third- party conduct. Having failed to demonstrate any causal connection whatsoever between the new NPIS rule and an increased likelihood that poultry slaughter establishments will produce adulterated poultry that could ultimately sicken Plaintiffs, Plaintiffs here do not have Article III standing to challenge the rule in federal court, and this Court lacks subject matter jurisdiction over the instant action. Accordingly, as set forth in the accompanying order, Defendants’ motion to dismiss is GRANTED . [5] Ketanji Brown Jаckson DATE: July 31, 2015 KETANJI BROWN JACKSON
United States District Judge
Notes
[1] Citations to the documents that the parties have filed refer to the page numbers that the Court’s electronic filing system assigns.
[2] As this Court explained in , the USDA maintains that its adoption of the NPIS was part of an
intentional “shift of federal inspection resources away from
post
-processing organoleptic review of
poultry carcasses—which . . . 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—and tоward stricter
pre
-
processing controls, which . . . are more important than ever in detecting the kind of microbial
contamination that causes food borne human illness today.”
FWW
,
[4] The
FWW
plaintiffs had asserted that they were afraid that slaughterhouses operating under the NPIS
would produce adulterated poultry, which might then enter the stream of commerce, and might
ultimately be purchased and consumed by plaintiffs and sicken them.
S ee
,
[5] This Court need not consider whether some
other
theory of injury exists that would have provided
Plaintiffs with a more straightforward opportunity to establish causation and redressability, and thus
standing to sue.
See, e.g.,
,