ANIMAL LEGAL DEFENSE FUND v. VILSACKANIMAL LEGAL DEFENSE FUND v. VILSACK
Under the Poultry Products Inspection Act,
BACKGROUND
A. Regulatory Background
The Poultry Products Inspection Act prohibits the sale or transportation of misbranded poultry products.
The Inspection Act gives the Department of Agriculture various tools to ensure that poultry products comply with the statutory requirements. For example, the Department has the authority to cooperate with and review the operations of the States, conduct inspections, promulgate regulations for the operations of facilities
The Department has implemented § 457(d) by requiring all final labels to be submitted for approval to the Department‘s Food Safety and Inspection Service (FSIS). See
B. Perdue‘s Fresh Line Label
Perdue is a nationwide poultry-production company. Compl. ¶ 56. It is vertically integrated, meaning it controls the production of chickens and turkey at every stage of their birth, growth, slaughter, and processing. See
On May 24, 2018, Perdue submitted its first label application to FSIS for Whole Chicken and Chicken Parts Blanket in its Fresh Line.
Perdue submitted a ‘blanket’ application for Fresh Line turkey products label that contained nearly identical imagery to the Fresh Line chicken products label.
C. The Animal Legal Defense Fund and Marie Mastracco
The Animal Legal Defense Fund, or ALDF, is a nationwide animal-advocacy nonprofit based in California.
A signature focus area[] of ALDF‘s work is curbing the misleading labeling and advertising of animal products.
One of ALDF‘s members is Marie Mastracco. See
Because of her dog‘s health condition, Ms. Mastracco feels compelled to continue purchasing whole chicken breasts.
D. ALDF‘s Response to the Perdue Fresh Line Label
On January 3, 2020, ALDF submitted a package of information to FSIS, explaining that label imagery like Perdue‘s, showing chickens and turkeys outside of a barn, under the sun, and surrounded by vegetation . . . is misleading and contrary to how the animals were raised.
ALDF thus requested that FSIS decline to approve any Perdue label applications that contain the same or similar imagery.
FSIS disagreed. See
Thus, when in September 2020, Perdue again applied for sketch label approval of some different Fresh Line products, FSIS approved them. See
E. ALDF‘s Allegations
ALDF alleges here that the approval of the Perdue Fresh Line label applications violated both the Administrative Procedure Act and the Poultry Products Inspection Act. See
ALDF claims that the Department has a pattern and practice of insufficiently reviewing premarket labels, again in violation of the Administrative Procedure Act and the Inspection Act. See
As for its injury, ALDF asserts that the Department‘s decision to approve Perdue‘s Fresh Line Label, specifically, without reviewing its graphic matter to ensure that it was not misleading[,] frustrates ALDF‘s mission and impedes its work to empower consumers with truthful information about animal products.
- [I]nvestigating the treatment of the chickens and turkeys raised for Perdue products;
- [C]onducting consumer surveys and research concerning the messages the Fresh Line labels are conveying;
- [A]lerting FSIS to the facts of Perdue‘s production methods and the results of the consumer surveys, and urging the agency to enforce the [Inspection Act‘s] requirements to prevent such deceptive labeling; and
- [D]rafting outreach and educational pieces to alert the public to how animals are raised for Perdue‘s products.
ALDF further alleges that its campaign to end intensive confinement of animals used for food and increase transparency in the labeling of animal products is also hindered by [the Department‘s] arbitrary and capricious and unlawful decision-making.
All of this, ALDF claims, has impede[d] and frustrate[d] ALDF‘s mission-driven activities to curtail the inhumane, large-scale confinement of these birds.
ALDF also alleges that [a]s a result of [the Department‘s] unlawful decision to ignore graphic matter in reviewing and approving poultry product labeling applications, ALDF must divert resources away from other projects to protect animals . . . in order to combat [the Department‘s] misunderstanding and misapplication of the [Inspection Act].
LEGAL STANDARDS
A. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under
The government moves to dismiss all of ALDF‘s claims for lack of subject-matter jurisdiction. See Mot. at 7–24.
B. Motion to Dismiss under Rule 12(b)(6)
A
The government moves to dismiss only Count II of the Amended Complaint—the pattern and practice claim—for failure to state a claim. See Mot. at 24-28.
I. ALDF LACKS STANDING
A plaintiff must demonstrate that it has Article III standing. See, e.g., Public Citizen, Inc. v. Nat‘l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007). That requires, of course, that the plaintiff must show injury in fact that was caused by the conduct of the defendants and that can be redressed by judicial relief. Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). When, as here, the parties invoking federal jurisdiction are not ‘the object of the government action or inaction’ they challenge, standing is ‘substantially more difficult to establish.’ Id. (quoting Lujan, 504 U.S. at 562).
ALDF advances two standing theories. It argues first that it has organizational standing. See Pl.‘s Resp. at 4–15, ECF No. 17. Second, and independently, it argues that it has associational standing through Mastracco. See
A. ALDF Lacks Organizational Standing
For an organization or association to have standing, it must show that,
To determine if ALDF has organizational standing, the Court must engage in a two-part inquiry. See id. First, the Court must ask whether the Department‘s action (or failure to act) injured ALDF‘s interests. Id. (quoting PETA, 797 F.3d at 1094). Second, the Court must determine whether ALDF used its resources to counteract that harm. Id. (quoting PETA, 797 F.3d at 1094).
But lurking in the caselaw behind this seemingly straightforward test lies some nuance, particularly at the first prong. For example, to allege an injury to its interest, an organization like ALDF must allege that the defendant‘s conduct perceptibly impaired the organization‘s ability to provide services in order to establish injury in fact. Turlock Irrigation Dist. v. Fed. Energy Regul. Comm‘n, 786 F.3d 18, 24 (D.C. Cir. 2015) (quotations omitted) (emphasis added). That would occur, for example, when the defendant‘s conduct causes an ‘inhibition of [the organization‘s] daily operations.’ Food & Water Watch, 808 F.3d at 919 (quoting PETA, 797 F.3d at 1094) (alteration in original). But an organization‘s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury. Id. (emphasis added). Similarly, an organization does not suffer an injury in fact where it ‘expend[s] resources to educate its members and others’ unless doing so subjects the organization to ‘operational costs beyond those normally expended.’ Id. at 920 (quoting Nat‘l Taxpayers Union, 68 F.3d at 1434) (alteration in original) (emphasis added); accord Nat‘l Taxpayers Union, 68 F.3d at 1434 (explaining that an organization‘s self-serving observation that it has expended resources to educate its members and others regarding [the contested government action] does not present an injury in fact). All of this makes good sense: If an organization cannot provide its services because of some action—if its day-to-day operations are severely impacted—then it has suffered an injury in fact. But if an action merely goes against an organization‘s values—thus leading the organization to engage in investigation, litigation, or other advocacy—that is not by itself sufficient. In those circumstances, the organization itself has not been harmed, at least not in the sense required by Article III.
These allegations fall short of establishing that ALDF‘s organizational interests were harmed by the Department‘s actions. Take ALDF‘s first argument—that its ability to provide effective consumer education and empowerment services has been impaired because the Department allows companies like Perdue to mislead consumers and hide the inhumane indoor
confinement the chickens and turkeys raised for the products endure.
ALDF relies on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), in which an organization called HOME challenged the alleged racial steering of Havens Realty Corp.,
ALDF‘s claimed injury falls short of HOME‘s. ALDF alleges that the Department‘s decision to approve Perdue‘s Fresh Line Label . . . without reviewing its graphic matter to ensure it was not misleading frustrates ALDF‘s mission and impedes its work to empower consumers with truthful information about animal products. Compl. ¶ 24. But this is a setback to the organization‘s abstract social interests, Havens Realty Corp., 455 U.S. at 379, not a claim that the Department‘s actions perceptibly impaired ALDF‘s ability to provide its services, id.2
So too with ALDF‘s second claim of injury in fact: that the Department‘s challenged conduct also impedes ALDF‘s legislative efforts aimed at ending the inhumane, large-scale confinement of birds, because such initiatives are dependent upon the public being aware of the conditions these animals suffer inside factory farms and being motivated to advocate against them. Pl.‘s Resp. at 7 (citing Compl. ¶¶ 26–27). As alleged in the Amended Complaint, the complained-of decisions hindered ALDF‘s campaigns, Compl. ¶ 26, limited the effectiveness of ALDF‘s advocacy to educate consumers,
2005). And it does not exist when, as here, the service impaired is pure issue-advocacy. Id. at 1162.
ALDF‘s third alleged injury—that the Department‘s actions preclude ALDF from preventing harms to animals through its regularly used process of submitting agency complaints, Pl.‘s Resp. at 7 (citing Compl. ¶ 26)—is also inadequate. ALDF does not allege that it has been prevented
In sum, conflict between a defendant‘s conduct and an organization‘s mission is alone insufficient to establish Article III standing. Frustration of an organization‘s objectives ‘is the type of abstract concern that does not impart standing.’ Nat‘l Treasury Emps. Union v. United States, 101 F.3d 1423, 1429 (D.C. Cir. 1996) (quoting Nat‘l Taxpayers Union, 68 F.3d at 1433).4 That this standard is difficult for lobbying or advocacy organizations to meet, see, e.g., Pl.‘s Resp. at 14–15, is not an argument against the standard, but rather a recognition that lobbying organizations are rarely injured by government action in a way that imparts Article III standing.
B. ALDF Lacks Associational Standing
An organization can also assert standing on behalf of one of its members. See Equal Rights Ctr., 633 F.3d at 1138. To have associational standing, an organization must show that it has a member who would otherwise have standing to sue in his or her own right; that the interests the organization seeks to protect are germane to its purpose; and that neither the claim asserted nor the relief requested requires the participation of the individual member in the lawsuit. WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013) (quoting Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 343 (1977)). The dispute here focuses on the first prong alone.
countervailing evidence, the Court must treat that factual allegation, supported by the declaration of Mark Walden, as true at this stage.
In any event, as the Court of Appeals has explained, an organization that has no members in the traditional sense may nonetheless assert associational standing if the organization is the functional equivalent of a traditional membership organization. Fund Democracy, LLC v. Sec. & Exch. Comm‘n, 278 F.3d 21, 25 (D.C. Cir. 2002) (citing Hunt, 432 U.S. at 342–45). Hunt had looked to three indicia of membership: whether the individuals played a role in selecting the organization‘s leadership, in guiding the organization‘s activities, and in financing the organization‘s activities. Flyers Rights Educ. Fund, Inc. v. U.S. Dep‘t of Transp., 957 F.3d 1359, 1361 (D.C. Cir. 2020) (citing Hunt, 432 U.S. at 344–45). Thus, readers of a magazine are not members of the magazine for associational-standing purposes, news watchers are not members of a media watchdog group, and individual investors who had done some past work with Fund Democracy were not members of that organization. See id. at 1361–62 (citing Fund Democracy, 278 F.3d at 25-26).
ALDF is nothing like these examples. As the government itself notes, membership in ALDF requires a payment, which at least helps finance the organization‘s activities. See Mot. at 19 n.4; see also Pl.‘s Resp. at 16 (ALDF‘s membership consists of individuals . . . who have donated within the past five years.; id. at 17 (Individual member financial contributions annually account for around 80 percent of ALDF‘s income stream.). Additionally, ALDF‘s members play a role in driving organizational activities and policies through its National Leadership Counsel, solicitation of membership input, and participating in ALDF‘s activities of submitting complaints and signing petitions. See Pl.‘s Resp. at 17 (quoting Walden Decl. at ¶¶ 26-27). The Court finds these allegations sufficient to establish this threshold requirement of associational standing.
The government‘s second argument focuses on whether Mastracco has standing. ALDF must, of course, allege sufficient facts to show that Mastracco herself suffered an injury in fact, that there is a causal connection between the injury and the conduct complained of, and that it is likely—not merely speculative—that the injury could be redressed by a favorable decision. Lujan, 504 U.S. at 560–61; see also The Wilderness Soc‘y v. Norton, 434 F.3d 584, 589 (D.C. Cir. 2006) (In order to establish standing, [an organization] must demonstrate, as to each of its claims, that at least one member meets the requirements of Lujan.). It has failed to do so.
To recap the Amended Complaint, ALDF alleges that Mastracco has regularly purchased Perdue‘s Fresh Line chicken breasts for the last several months to feed her sick and elderly dog, Ozzie. Compl. ¶ 31. In deciding which chicken breasts to purchase, Ms. Mastracco considered factors such as whether the chickens raised for the meat were healthy, given any chemical hormones, and treated humanely. She relied on the products’ labels to provide information about these factors.
To be sure, ALDF does allege that Mastracco considered the imagery on the package. [S]eeing the graphic imagery, coupled with Perdue‘s use of the term ‘cage free,’ ALDF alleges, Ms. Mastracco interpreted the label to mean that the chickens raised for the products roamed freely on pasture, under a shining sun.
continue purchasing whole chicken breasts.
ALDF has failed to allege sufficient facts showing that Mastracco is suffering an injury in fact. A concrete injury is direct, real, and palpable—not abstract. Food & Water Watch, 808 F.3d at 914 (quotations omitted). Mere disappointment that a cartoon depiction of chickens in the field does not match reality, without more, is insufficient. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (A ‘concrete’ injury must be ‘de facto‘; that is, it must actually exist.). This might, perhaps, be a different case if purchasing free-roaming chicken was Mastracco‘s aim—if that was the factor that drew her to purchase Perdue‘s Fresh Line products in the first place—and she was now paralyzed from purchasing future poultry products through lack of faith in the accuracy of their labels. But that is not this case. Ms. Mastracco was influenced to purchase Perdue‘s Fresh Line chicken products by label claims about no antibiotics. Compl. ¶ 32.
Nor is it enough to allege that Mastracco has continued (and presumably will continue) to purchase Perdue Fresh Line chicken. As the Amended Complaint makes clear, Mastracco has been disabused altogether of any notion that the cartoon chickens represent reality. See
never relied on the label‘s imagery to make her purchasing decision in the first place, she certainly cannot be harmed by relying on it in the future, given the knowledge she now has.
ALDF does allege that Mastracco now lacks confidence in the accuracy of all chicken labels. And concrete is not necessarily synonymous with tangible, as the Supreme Court has explained, which gives some background appeal to this observation. Spokeo, 136 S. Ct. at 1549. But none of the allegations suffices to show a concrete harm to Mastracco. As the Eleventh Circuit has recently explained, while a concrete injury needn‘t
ALDF primarily relies on two cases to argue to the contrary: Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018) and Richardson v. L‘Oreal USA, Inc., 991 F. Supp. 2d 181 (D.D.C. 2013). See Pl.‘s Resp. at 22-32.
Davidson, of course, is not binding here. In any event, and whether or not it correctly interprets Article III‘s demands, its holding is inapplicable. Davidson held that a consumer had standing because she will be unable to rely on the product‘s advertising or labeling in the future, and so will not purchase the product although she would like to; and she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was improved. Davidson, 889 F.3d at 969–70.
Here, in contrast, ALDF alleges that Mastracco will likely purchase chicken in the future, and does not allege that that she will do so under the assumption that the product has improved.5
As for Richardson, which is also not binding, that decision dealt with a proposed class-action settlement regarding the allegedly misleading nature of certain L‘Oréal products, which said salon-only although they were not only sold in salons. Richardson, 991 F. Supp. 2d at 187–188. The court conclude[d] that plaintiffs have standing despite their knowledge of the ‘salon-only’ misrepresentation because of the likelihood of future harm, as even consumers with such knowledge will be harmed—without an injunction—by not being able to rely on the ‘salon-only’ label with any confidence. Id. at 194. Again, this case is distinguishable. Unlike in Richardson, where the salon-only label had deceived and misled the plaintiffs, see id. at 191 (quotation omitted), Mastracco was never misled in the first place. Not once did she purchase the poultry products at issue because she relied on the cartoon chickens or turkeys on the package. And now that she knows they are not accurate, she will not rely on them going forward.
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Access to federal courts is limited to parties who were actually injured by the challenged government action. Neither ALDF nor Mastracco have shown that to be the case. The Court will thus grant the government‘s Motion to Dismiss the Amended Complaint, ECF No. 15, and deny as moot the government‘s original Motion to Dismiss the Complaint, ECF No. 10. And because
ALDF lacks standing, the Court need not address the argument that Count II of the Amended Complaint
DATE: November 14, 2022
CARL J. NICHOLS
United States District Judge