*1 Floor, Courtroom, Eighth United Appeals’ KENNEY, Plaintiff/Appellant, Avenue, Courthouse, Kan- Delores J. 811 Grand
States Missouri, panel, of the before this City, sas Behrens; Hans; Rosemary Carol court. Nichols; Meyer; David Madeline Newton, Plaintiffs, Wayne (including chief of this The clerk absence) ap- in the clerk’s deputy clerk Numrich; Fox; Skip Timmer Gerald Irvin cases, manager for these as the case pointed Willrett; Larry Martin; man; James briefing sched- power to establish with full Scott; Ringling; Richard H.T. James ules, lengths, to order brief Houck; Perry; Bell; Robert Gar Jan pаrties as their joint by two or more briefs Dahl; Haverhale; Jack John land initially align appear, Judy; Knirk; Long; interests Mike Russ Bill according Horne, inter- parties Dodge, Jr.; to their realign the Phil Van Plain ests, any tiffs/Appellants, neces- to take and all actions of the merits sary expedite the submission Plaintiff, Rebholtz, Robert ready they cases so that will be of these January 1997 St. Louis calen- Adamson; inclusion Miller; Paul Gen Bub Scott panel Keller; Reeves; above. ho; the same listed Mark dar before Earnie Jim Armentrout, Plaintiffs/Appellants, Pending thе court the resolution v. stay, IT pending motions for IS ORDERED GLICKMAN, Secretary Daniel Com- effective date of the Federal Defendant/Appellee. Agriculture, Report First munications Commission’s No. 95-2371. August Implementation Order of Competition in the Provisions the Local Appeals, United States Court Docket Act CC Telecommunications Eighth Circuit. 96-98, hereby tempo- be and the same is No. Dec. 1995. Submitted resolving the rarily stayed until the order Sept. Decided stay motions is filed.
1H9 claim, holding actions state a Agriculture by appellants subject The poultry review. consumers have appealed that determination. *3 Appellants challenge certain actions and Agriculture Secretary inactions the of re- processing the The garding of Sec- retary responsible implementing for both Poultry Inspection the Products Act MD, Kefauver, Rockville, argued M. James seq., (“PPIA”), 451 et § 21 U.S.C. and the (Alan Rockville, MD, Sternstein, and B. (“FMIA”), Inspection Federal Meat Act LA, Wythe Willey, Rapids, on the Cedar seq. 601 et objectives The stated brief), appellant. for bases of the are identical: and two Acts Sharrin, Justice, Dept, of Andrea M. health protect the and welfare of consumers DC, for Washington, appellee. and to eliminate on the burdens interstate commerce that result the distribution from of BEAM, MeMILLIAN and Circuit Before unwholesome, adulterated or mislabeled PERRY,* Judge. Judges, and District respect products. With the of con- health sumers, parties provided both statistics PERRY, Judge. District garding large the of number contaminated poultry processed meat and carcasses each Kenney con- рoultry Delores and fellow year negative consequences and the resulting from appeal sumers the district court’s order consumption human from of the contaminat- dismissing this action for failure to state a light goals ed carcasses. of the identical claim. Because we find the Acts, appellants allege of the two the Secretary actions and inactions of the of Secretary contradictory has reviewable, require- issued Agriculture are we reverse and inspection cleaning ments fоr the of to the district for a and meat remand determina- Secretary poultry, Secretary im- tion of whether the abused has his properly discretion. allowed pro- water absorbed
cessing to remain in poultry. I. processing poultry begins The of meat and n parts with the removal of certain plaintiffs, original poultry The consumers parts carcasses. carcasses and are then producers, brought and red meat an action processed either sold or further. Because Glickman, against appellee Secretary Daniel poultry by weight, both meat and sold are Agriculture,1 aspects of challenging certain of any moisture dining processing added in- Department Agriculture’s regulatory of Similarly, creases the value of the carcass. governing poultry process-
scheme meat any trimming of during process- the carcass ing. poultry The district court held that the ing to remove contaminants reduces the val- challenge standing consumers had the Sec- actions, ue of the carcass. retary’s producers but To further the the red meat FMIA, PPIA and standing. pro- regulations require did not have meat The red post-mortem appeal part inspections ducers did not ante- and district respect poultry poultry court’s order. With to the processed livestock for human consumers, granted terms, the district court In technical purpose food. Secretary’s motion inspections to dismiss for failure to tois ensure carcasses * PERRY, Glickman, brought The HONORABLE CATHERINE D. this action. Daniel current Judge United States District for the Eastern Dis- Agriculture, replaсed Espy Missouri, sitting by designation. trict of party to this action. Espy, 1. Defendant below was Mike who was Agriculture appellants at the time quire processors or “misbranded.” meat to trim or are not “adulterated” otherwise nearly actually tissue, of those two terms are remove contaminated definitions regulations poultry pro- under the two Acts. while the allow identical cessors to “water wash” the contaminated poultry meat and carcasses are Individual portion of the carcass. during processing, inspected and carriers E. coli pathogens other removed. are Appellants challenge deci- carry pa- The well-known contaminants (1) sions with the “zero tolerance” feces, If thogens ingesta and milk. con- poultry defects meat but not are found on an individual meat or taminants regulations allowing pro- carcass, pro- require cessors to water wash rather con- than trim cessors to remove the contaminants. The Appellants taminants. contend that *4 refer to regulations this as “zero tolerance” Secretary reg- should either issue the same to individual After respect carcasses. ulations for and meat a poultry provide inspected the carcasses have been individual legally sufficient reason for treating meat necessary, inspector reprocessed and differently. poultry sample reinspeets carcasses selected from Finally, appellants challenge certain water- lot to determine there the entire whether regulations retention governing pоultry. “process a defect” that caused was have regulations governing The water absorbed to exist on in that contaminants carcasses during processing differ between meat particular regu- lot. March Before poultry. meat prohibit pro- The slightly lations established tolerance above adding cessors from water sub- and other respect process zero with defects both during processing. stances to a meat carcass words, poultry In if and meat. other carcasses, Poultry hand, may on the other sample number of defects discovered on the absorb an average eight per- and retain level, was than carcasses less the tolerance weight cent over increase of the carcass proceed. lot could the entire If the defects washing. Appellants challenge before final level, the tolerance lot exceeded the entire regulation grounds. First, on this two irre- required. failed and corrective action was spective regulations, appellants of the meat Secretary In di- March issued allege violated operators inspectors of rectives to beef Poultry prohibitions against Act’s “adulterat- plants.2 slaughter The af- directives —which by allowing ed” and “misbranded” carcasses poultry not fected meat but —lowered Second, poultry. appel- water retention process tolerance level for to zero. defects allege lants has acted did not The directives affect the tolerance arbitrarily capriciously by re- allowing carcasses, ie., for individual toler- level in poultry tention of water but not meat. for on carcasses ance contaminants individual poultry. zero for both remains meat and II. process The level for tolerance poultry slightly In remains above zero. oth- The district court held that of the none words, er a certain level of contaminants Secretary’s challenged actions or inactions poultry during process discovered in- respect are reviewable. With to the zero spection acceptable and not is the lot will tolerance and contaminant removal stan- reprocessing. for returned dards, introductory looked the court to the language to the addition different standards and held that “that defects, broadly tolerance the methods statute has been drawn so that there approved by judging contaminant removal the Secre- is no standard available for how tary differ between also meat and when the should exercise its discre- Likewise, regulations governing inspections tion.” the cоurt held that deci- guidelines replaced changes. interim December stantive sub- the March directives with no relevant Chaney. Appellants unreviewable under water retention of regarding sions regula- of these the characterization completely to the contest “left processing thereof) (or as enforcement deci- tions lack Secretary.” review the We discretion sions, they are reviewable. and claim Thomas W. de novo. decision district court’s Louis, to the decision F.2d With
Garland, City St. Inc. v. appellee absorption poultry, into (8th Cir.), allow water cert. 784, 787 dispute not that the action apparently does 208, L.Ed.2d 135 reviewable, argues that and instead is (APA) Act Procedure The Administrative arbitrary Secretary’s actions were of re- point for a discussion starting is capricious. APA agency action. viewability of an “adversely affected any person provides III. agency action for by a “final aggrieved” remedy” adequate no other there is
which Appellee contends that the Secre judicial reviеw. generally entitled reject tary’s a zero tolerance excep are two 704.3 There poultry process defects and to standard for reviewability: general rule of to the tions contaminants allow water explicitly precludes statute where the type of enforcement decisions are the *5 review, “agency action is com where presumptively Supreme Court declared by law.” Id. agency discretion mitted to Chaney, 470 in Heckler v. U.S. unreviewable 701(a). § In to Preserve Overton Citizens (1985). 1649, 821, 84 714 105 S.Ct. L.Ed.2d 402, Park, 91 S.Ct. Volpе, 401 U.S. Inc. v. argument, appellee support In of his states (1971), 814, Supreme 28 L.Ed.2d poultry inspection process that the meat and exception was the second Court noted same, Secretary and that the has es are the applicable “it is “very and that narrow” merely agency made a decision to use re are instances where ‘statutes rare those inspection pro the meat sources to enforce given that in a broad terms drawn such vigorously part cessing regulations more as ” 410, apply.’ Id. аt is no law to case there “high priority” prevent pathogens of a omitted) (footnote (quoting at 821 91 S.Ct. supply. meat the nations’s 752, Cong., 79th 1st Sess. 26 S.Rep. No. (1945)). again discussed the sec The Court reject appellee’s We characterization reviewability in Heckler v. exception to ond washing policies water as zero tolerance and 1649, Chaney, 105 S.Ct. 470 U.S. decisions; Chaney enforcement we find (1985). Chaney, In the Court L.Ed.2d 714 presumption a of unre- does not establish that “an presumption a rebuttable created viewability case. In Heckler v. Cha this enforce, prosecute agency’s decision not to ney, Drug that the Food and the Court held process, criminal is through civil or whether Administration’s decision not to take enforce agen to an generally a decision committed prevent ment actions to the use of lethal 701(a)(2) of cy’s discretion” under absolute subject injections not to review. Id. was 831, 105 Chaney, 470 at S.Ct. the APA Court, According to the a decision not to at 1655. complicated enforce “often involves a balanс ing pecu which of a number of factors case, party neither contends this liarly agency’s] expertise.” within Id. at [the any three actions are ex- 831, 105 at 1655. The Court stated the S.Ct. judicial by plicitly precluded from review following general for the unsuitabili reasons statute, exception to and therefore the first ty judicial of enforcement review actions: reviewability apply. Appellee not con- does agency only not regulations regarding zero tol- must assess whether [T]he tends that its occurred, agen- contaminant removal are en- a violation has but whether erance and cy spent on this viola- presumptively that are resources are best forcement decisions Cir.1985), Block, (8th provisions apply equal 771 F.2d review Miller v. The APA ce agency ly agency rt. 478 U.S. action and inaction. 551(13), 706(1); L.Ed.2d 725 also Iowa ex rel. see
H23 another, agency case-by-case tion whether is determinations of when to en- acts, likely existing regulations to succeed if it whether the force perma- rather than particular requested рolicies enforcement action nent or standards. An example and, agency’s policies, highlights best fits the overall A prosecutor distinction: indeed, agency enough whether has fuses to proceedings institute when he or she the action at all. prosecute resources undertake decides not to an pos- individual agency generally against An cannot act sessing marijuana; one ounce of Congress each technical violation of the it is statute would not be characterized “refusing charged enforcing. agency is far proceedings” institute Chaney under if it equipped better than the courts to deal drug amended the laws to simple exclude many with the variables involved in the possession of marijuana one ounce or less of proper ordering priorities. of its as a crime. 831-32, 105
Id. at
S.Ct. at 1656.
sum,
we do not believe the Court in
Chaney intended its definition of “enforce
regarding
zero
ment action” to
interpretation
include an
Chaney-
tolerance and water
an
the statute’s
type
could be
enforсement actions. The
by adopting
met
permanent
certain
stand
has
decided “whether a violation has
See,
Shalala,
ard.4
occurred,”
e.g., Arent v.
has not decided whether
70 F.3d
he will
(D.C.Cir.1995)
acts,
(“Chaney
“succeed” if he
is of no
and has not determined
[agency]
assistance to the
which “technical
this
against.
violations” to act
case be
Rather,
[agency’s]
cause the
adopted general
promulgation
of a stan
policies
dard for
stating
compliance’
‘substantial
the tolerance level оf
under the
process
slightly
represent
does not
[Act]
above
an enforcement ac
tion.”);
EPA,
zero while the tolerance level of
de-
Edison Elec. Institute v. U.S.
*6
zero,
326,
(D.C.Cir.1993) (“Petitioners
fects meat is
996 F.2d
that
con-
333
taminants can be
challenging
water washed rather than
the manner in which the
trimmed while meat
[agency]
contaminants must be
has chosen to exercise its enforce
policies
trimmed. Those
are
Instead,
the standards ment discretion ...
petitioners are
acceptable
deems
to im-
challenging
[agency’s]
interpretation of
plement
of
PPIA
and FMIA.
implementing regulations
[the Act] and its
Clearly,
interpretation
...
this
has to do
Likewise, this is not a case where the
requirements
law;
with the substantive
of the
proceed-
has refused to institute
type
it is not
discretionary judgment
ings.
In support
presumption
of the
of unre-
concerning the allocation of enforcement re
viewability,
Chaney
the Court in
stated:
sources that
judicial
Heckler shields from
Finally,
recognize
agency’s
we
that an
review.”);
Treasury
National
Employees
fusal
proceedings
to institute
shares to
Horner,
(D.C.Cir.
490,
Union v.
854 F.2d
496
some extent the
characteristics
the deci- 1988) (“[The agency’s]
develop
decision to
prosecutor
sion of a
in the Executive
competitive
some but not other
examinations
Branch not to indict —a decision which has
major policy decision,
...
is a
quite different
long
regarded
been
special province
as the
day-to-day agency
from
nonenforcement de
of the Executive Branch ...
”).
poultry policies
cisions ...
allowing
832,
at
greater
Id.
105
at
language
S.Ct.
1656. This
than
zero tolerance of
de
suggests
Chaney
individual,
applies to
fects and water
of contaminants are
case,
Chaney recognized
4. The Court
Secretary's
that it was not
In this
zero tolerance and
addressing
justifi-
the situation "where it could
contaminant
removal standards are conscious
ably
be
'consciously
express general policies.
found that the
Although appel-
expressly adopted general policy’
argued
that is so
lants have not
that this case involves an
poliсy
extreme as to amount to an abdication of its
extreme
is an
of the
"abdication”
statutory responsibilities,”
Secretary’s responsibilities,
and therefore ex-
we find that
pressed
opinion
no
as to whether such
Chaney
decisions
Court's distinction in footnote four of
701(a)(2).
general policies
would be unreviewable under
Cha-
between
and enforcement ac-
4,
ney, 470
at
supports
U.S.
833 n.
pоlicy
poultry pro-
policies
govern
water wash
goal
light
the PPIA
terpretation
cessing.
court must examine
The district
risks.
from health
consumers
protect
adopting
policies
Secretary’s
reasons
goals of the PPIA and the
light
IV.
of “adulterated”
definition
Secretary’s action or inaction
whether
the Secre
Having determined
an
arbitrary
capricious
abuse
was
washing poli
and water
tary’s zero tolerance
discretion.
enforcement
qualify
poultry do
cies for
actions,
the Secre
to review
addition,
Secretary’s regula
we continue
under the rele
challenged inactions
tary’s
regarding meat that were
policies
tions and
provide
pursuant
the APA. The
to the FMIA
provisions
implemented
vant
pre
apply.
PPIA and FMIA are
law to
parallel in
respects,
no law to
identical
several
unless there is
sumed reviewable
history
legislative
respects. The
most other
Park v.
Preserve Overton
apply.
Citizens
subsequent amendments
Acts and
the two
814,
402,
28 L.Ed.2d
Volpe,
91 S.Ct.
401 U.S.
congressional intent
to construe
indicate a
(1971).
strong
general,
there is a
136
consistently.
the FMIA
Congress
intends
presumption
Butz,
v.
Public Health Ass’n
American
Abbott Lab.
action.
review of administrative
(D.C.Cir.1974);
331,
see also
F.2d
136, 140,
1507,
Gardner,
87 S.Ct.
387 U.S.
v.
Cong., 2d
H.R.Rep. No.
90th
Sess.
“Judicial re
L.Ed.2d 681
(1968), reprinted in 1968 U.S.C.C.A.N. 3426.
agency action will not be cut
a final
view of
that,
general,
similar
Courts have also held
persuasive
is a
reason
unless there
off
interpreted
parallel
statutes should
purpose of
Con
that such was
believe
See,
consistently
possible.
e.g.,
whenever
gress.” Id.
Massachusetts,
v.
Greenwood Trust Co.
(1st
Cir.1992),
818, 827
cert.
F.2d
apply”
that “law tо
have found
Courts
H25
Likewise,
Y.
the
definition
“misbrand
provides
apply,
ed”
law to
by
as evidenced
Appellants
challenged
also
have
Secre
reviewing
numerous
tary’s regulations allowing up to
to
8% water
agency
action and inaction
as vio
poultry
It
during
processing.
is
absorbed
be
prohibition against
lations of the
misbranded
regulations
undisputed
these
See,
poultry products.
e.g., American Meat
under Heckler v. Cha
“enforcement actions”
USDA,
(4th
Institute v.
whereas lied on the “reasonable variation” and “ex any the retention of water other substance emptions language ... be established” 301.2(e)(8) during processing, see C.F.R. 453(h)(5) §in contained to conclude all interpretations of the term “misbranded” PPIA, poultry product by Congress Under wеre committed dis “any if substance been This conclusion too “adulterated” has- cretion. affords much *8 merely packed weight provisions part mixed or added thereto or therewith to of “misbranded,” weight, ap as to bulk or reduce of and that so increase its or definition quality strength, pear only very or appear apply its make it narrow situations. Becker, greater generally Packing or of value than it Rath Co. v. better is.” See Cir.1975), (9th 1295, 1298-1301, § 453(g)(8). provides This definition 530 F.2d 1308-12 apply. 'd, law to district court can review 430 U.S. 97 S.Ct. aff (1977); propеrly 9 C.F.R. whether the excluded L.Ed.2d 604 see also 317.2, (defining scope processing from the 317.19 of water absorbed variations”). prohibited nothing by of class substances “reasonable There addition, being In of that indicates from added the definition “misbranded” complete Secretary’s poul- Congress intended to discre compare can afford try agency regarding decisions such and meat tion to the arbitrarily absorption provisions challenged whether the has acted as the water capriciously appellеe abused Because has not over his discretion this case. reviewability treating differently. presumption meat and come the poultry regulations that allow respect to absorbed, II will to be Count be
some water court for review of to the district remanded Secretary’s actions. VI. conclusion, we reverse and remand this district court on both Counts I to the action Secretary’s actions. II for a review the McMILLIAN, Judge, dissenting Circuit part. I part. dissent would respectfully
I
appel
dismissal of
the district court’s
affirm
complaint.
I
claim in Count of the
lants’
my opinion, the
for
enforce a zero tolerance standard
allow water
poultry contaminants are nonreviewable
Heckler v. Cha
enforcement decisions under
821, 831-32,
ney,
470 U.S.
(1985). However,
1655-56,
dismissal absorp complaint (concerning the water reversed, and regulations) should tion claim remanded review. CALDERON, Warden, Petitioner, Arthur
v. DISTRICT COURT UNITED STATES the EASTERN FOR DISTRICT OF CALIFORNIA, Respondent,
Anthony Bean, Cornell Real-
Party-In-Interest.
No. 96-70585. Appeals, States United Court of Ninth Circuit. *9 Sept. Submitted 1996.* Sept. 30, Filed * 34(a), panel unanimously argument. R.App. finds this case suitable for oral Fed. P. Ninth Cir- submission on the briefs and without cuit R. 34-4. record and