Food & Water Watch, Inc. v. Thomas Vilsack

any positive initial determina- had issued WATCH, FOOD & WATER

tions. Because Friends of Animals did not INC., al., Appellants et positive until after issuance of the wait the days’ initial provide determinations final allegedly notice of the overdue deter- VILSACK, Thomas J. in his Official

minations, seeking compel its suit Capacity Secretary as the U.S. final determinations is barred.2 Agriculture, al., Appellees. et clear, To be the deadlines set forth in No. 15-5037. 1533(b) § mandatory. are If 12 months petition have from the of the passed date United Appeals, States Court of filing and the Service has not made an District of Columbia Circuit. determination, initial ordinarily court may order the Service to make an initial Argued Sept. requested determination if to do so Decided Dec.

party standing, assuming party with given days’ has notice to the Service.3

If 12 passed months have from the date of petition filing and the Service has positive

made a initial determination but determination,

not a final a court ordinari-

ly may order the Service to make a final

determination, assuming party giv- has days’

en 60 notice to the after Service

positive initial determination was made. judgment

We affirm the of the District

Court.

So ordered. private party try 2. Because we conclude that Friends of Ani 3. A of course can sue to comply mals failed to with the Act's notice compel an initial determination even before requirement, we need not address the Ser expiration period the 12-month argument vice’s that Friends of Animals lacks that, petition filing. the date of the But to do See Sinochem International Co. party must show that the Service failed to Malaysia Shipping Corp., Ltd. v. International make the determination the maxi- "[t]o initial 422, 430-35, 549 U.S. 127 S.Ct. practicable, days mum within 90 after extent (2007); L.Ed.2d 15 Public v. U.S. Dis Citizen receiving petition.” 16 U.S.C. Columbia, trict Court the District 1533(b)(3)(A). § F.3d 1345-49 (“USDA”) Department Agriculture may result in an increase in foodborne illness poultry. from contaminated prevent To regulations going effect, into sought declaratory Plaintiffs injunctive relief. The District Court concluded that Plaintiffs failed to demonstrate an in fact and dismissed Plaintiffs’ claims for lack of appeal, argue

On Plaintiffs that the Dis- applied trict Court an incorrect standard finding lacked standing. Ac- Plaintiffs, cording to appropriate once the standard applied, complaint their (1) evidence show: the Individual Plain- tiffs, Margaret Sowerwine and Jane For- an, and FWW members have shown an increase in the -risk of harm sufficient to (2) fact; injury establish an in FWW has shown an injury to its interest expen- and Zachary Corrigan argued B. the cause response ditures made in injury to that appellants. and filed the briefs for fact; sufficient to injury establish an in (3) and Plaintiffs have a procedur- suffered Tenny, Attorney,

Daniel Depart- U.S. injury al sufficient to Justice, injury establish an in argued ment of the ap- cause for purposes fact for pellees. standing. Although himWith on the brief were Ben- Mizer, jamin the Principal Deputy applied C. District Court the incorrect Assistant General, Attorney Jr., Vincent H. Cohen standard to evaluate Plaintiffs’ standing, Stern, Acting Attorney, U.S. and Mark B. the District Court correctly nonetheless Jed, Attorney. Attorney, Adam C. en- ruled that Plaintiffs have not appearance. tered an sufficient to establish un- der the appropriate According- standard. HENDERSON, Before: MILLETT and ly, we affirm. WILKINS, Judges. Circuit Opinion by for the Court filed Circuit I. Judge Opinion WILKINS. concurring in Poultry Inspection The Products Act judgment by Judge filed Circuit (“PPIA”), 451^472, §§ 21 U.S.C. was born Concurring opinion HENDERSON. filed Congressional out of a in protect- interest by Judge Circuit MILLETT. ing by consumer health and welfare en- WILKINS, Judge: Circuit (“Sec- abling Secretary Agriculture retary”) poultry to ensure that products Foran,

Margaret Sowerwine and Jane “wholesome, adulterated, were poultry, individual consumers and Food marked, labeled, Watch, (“FWW”), properly packaged.” & Water Inc. their or- advocate, ganizational § that 451. The PPIA regu- accomplishes fear new U.S.C. by lations promulgated goal, part, by requiring the United States this in the Secre- 2012). (proposed Un inspectors1 conduct Jan. tary to ensure pro- inspection poultry existing inspection systems, of all FSIS post-mortem der the Id. consumption. human cessed for or off inspectors perform either an online 455(b). con- requires PPIA also § The en inspectors role. See id. line Offline for human food and destruction demnation safety regula compliance sure with food poultry all that is found be purposes of tions, verify procedures, sanitation adulterated, can be re- poultry unless the samples pathogen testing. collect inspector’s supervision an processed under inspectors or more id. One online FSIS it found to be not adulterated. so that poultry with its visc inspect each carcass- 455(c). § The PPIA defines “adulter- Id. immediately following separation era conditions, includ- ated” to include various See id. of the viscera the carcass. “any containing, things, other ing among existing systems, inspection Under which or deleterious substance poisonous in conduct inspectors “organoleptic” health”; may injurious it various render sight, touch, spection, using and smell that are unfit for human con- additives Ap Brief for evaluate carcasses. See part in whole or sumption; consisting Watch, Food & Inc. v. Vil pellees, Water decomposed sub- any “filthy, putrid, or sack, (D.C. Cir.), No. 15-5037 Doc. No. unsound, any reason or is other stance 3; Fed.Reg. see also unhealthful, unwholesome, or otherwise each (noting inspectors “examine food”; packaging human or unfit for defects”). eviscerated carcass for visual “may it have been ren- conditions where Poultry personnel establishment do not § injurious 453(g). dered health.” any sorting evaluation of car conduct pass receive an Carcasses casses; provide establishments it was in- legend indicating official “helper” only upon who takes action 45300(12); § spected USDA. Id. inspector’s Fed.Reg. FSIS direction. § 381.96. C.F.R. at 4410. Safety Inspection The Food and Service inspection at in this The method issue (“FSIS”) 7 the PPIA. See administers case, Inspection System the New 2.53(a)(2)®. Poultry 2.18(a)(l)(ii)(A), §§ C.F.R. (“NPIS”), responsibilities alters the of the chicken Historically, permitted FSIS has inspectors the establishment FSIS and turkey of con- poultry products and —the personnel. The rules institutional- NPIS inspected to Plaintiffs —to under cern be sorting inspector-based ize the shift from inspection systems: four one of evaluation to and establishment-based Inspection System, the New Streamlined NPIS, sorting and evaluation. Under Inspection System, the New Speed Line poultry sort the Turkey Inspection personnel and traditional establishment System, in- carcasses take corrective ac- inspection (collectively, existing poultry “the and to an See id. spection systems”). prior inspection. Modernization tion FSIS Poultry Slaughter Fed.Reg. 77 at 4421. Inspection, "(1) chap inspector poultry products authority

1. The PPIA defines an under of this 453(k). § employee or official States Gov ter.” 21 U.S.C. of the United Secretary by ernment authorized to in spect poultry poultry products and under the prin- 2. are of the "[t]he Viscera soft contents (2) authority any employee chapter, of this cipal body” or cavities of the which includes government any of the State or together or Official entrails or with the "the bowels heart, liver, English territory lungs, or the of Columbia author District etc.” Oxford Dic- ed.2007). tionary (3d Secretary inspect poultry and ized to man, out of grew The NPIS FSIS’s concern 130-31 However, agency being resources were not used we cautioned that “[i]f the way in the most effective to ensure food rulemaking USDA undertakes a to adopt safety. id. at 4410. In an effort to permanent change as a something along effectively to more develop new methods the lines of the modified program, experi- inspect poultry, promulgated 1996 FSIS program’s ence with the operation and its “Pathogen Analysis Reduction/Hazard play signifi- effectiveness will doubtless (“HACCP”) and Critical Control Points” cant role” and warned that our opinion 4413; Reduction; Pathogen rule. Id. at “may necessarily foreshadow the out- Analysis Hazard and Critical Control judicial come of reg- review of such future 1996). Points, Fed.Reg. (July ulations.” Id. at 130-31. required poultry HACCP establishments Twenty young chicken turkey and five develop product controls ensure safe- HIMP, participated establishments and ty empowered the establishments to analyzed FSIS collected and the data from make their own determinations about how these Fed.Reg. establishments. at regulatory requirements. to meet the FSIS data, Using this FSIS concluded Fed.Reg. at subsequently 4413. FSIS that the HIMP procedures “improved per- inspection announced HACCP-based formance safety related food and non- (“HIMP”) project models that would allow food-safety ... especially standards in re- develop inspection FSIS to test and new ducing pathogen proposed levels” and Poultry models. HACCP-Based Meat and replace NPIS to the existing inspection Inspection Concepts, Fed.Reg. systems, (June excluding inspec- the traditional 1997). pilot The HIMP method 4421., system. tion at pro- Under the made personnel establishment “re- rule, posed NPIS “establishments [would] sponsible identifying removing carcasses, required to dispose normal be sort from abnormal carcasses condemned, parts.” Fed.Reg. carcasses that must be and to any necessary trimming conduct repro- pilot The HIMP challenged was as a cessing activities pre- before carcasses are violation of PPIA in- FSIS sented to the inspec- online FSIS carcass spectors inspect poultry did not carcasses tor.” pass along Id. The carcasses would themselves, leaving all to estab- production inspector line the online personnel lishment with oversight. FSIS a speed per young of 175 birds minute for Am. Empls., Fed’n Gov’t AFL-CIO chickens, per and 55 minute for tur- birds (AFGE I), 7, Glickman 9-10 keys. at Id. 4423. establishment While (D.C.Cir.2000). This Court held that such carcasses, personnel inspectors sort FSIS delegation PPIA. violated the Id. at 11. In by increasing would their reallocate time I, response to AFGE “FSIS modified 4420, inspection offline activities. Id. at HIMP position inspector to one at a fixed projected young FSIS 99.9% of location near the slaughter end of the line produced chickens and would be in poultry slaughter each establishment” under the NPIS. Id. at 4436. After a who was responsible evaluating each period, adopted notice and comment FSIS personnel carcass after establishment had a final NPIS rule with a number of modifi- processed Fed.Reg. sorted and it. 77 at cations, making adoption which included of program 4413. The modified HIMP was challenged, optional, lowering also and the NPIS and the birds this Court held that program per speed young did not violate the PPIA. Am. minute of chickens to 140 Empls., per Fed’n Gov’t v. minute. Modernization of Poul- AFL-CIO Vene- birds of 912 Watch, Fed.Reg.. 79 as moot. Food & Slaughter Inspection, motions Water

try 2014). 21, Vilsack, 174, 49566, v. 79 206 (Aug. F.Supp.3d 49570 Inc. (D.D.C.2015). respect With to the Individ- 2014, 11, Plaintiffs filed September On Plaintiffs, ual the District Court found case, complaint claiming in this their injury in fact in did not suffer unprecedented “an the NPIS constitutes order at 190-95. to establish Id. elimination of resources for The also found that FWW District Court turkey of chicken and young secret set standing organization, lacked as an and ¶ 1, Compl. In slaughterhouses.” J.A. 9. procedural did not Plaintiffs suffer alleged eight claims spirit, this Plaintiffs standing.3 to establish sufficient (1) 21 violation of against Defendants: appeal Plaintiffs the dismissal 455(c) § by allowing condemnation U.S.C. grounds. on these young turkey by of chicken and carcasses (2) personnel; NPIS establishment viola- 455(c) by § 21 re- allowing

tion of U.S.C. II. turkeys chickens processing young and considering the merits of Plain- Before personnel NPIS establishment without first standing arguments, tiffs’ we must (3) supervision; 21 inspector violation of appropriate under determine standard 455(b) § each chick- young U.S.C. which evaluate claims. we should Plaintiffs’ turkey en and carcass will not receive a moved preliminary Because Plaintiffs for a in post-mortem inspection NPIS establish- injunction, the District Court evaluated (4) ments; of the violation PPIA’s brand- bring Plaintiffs’ their claims (5) ing requirements; violation under heightened standard for evaluat- 455(b) § § U.S.C. and C.F.R. 381.1 be- summary ing judgment. motion for turkey cause each and will chicken viscera Watch, 79 F.Supp.3d Food & Water (6) federally inspected; not be violation of Fed’n, (citing Lujan v. Nat’l Wildlife 463(c) § provide for failure to U.S.C. 8, 3177, n. U.S. S.Ct. views; opportunity presentation for oral (1990) (Blackmun, J., dissent- L.Ed.2d 695 (7) violation of the Administrative Proce- ing)). was approach This correct for de- (“APA”) by failing Act provide dure termining grant whether adequate opportunity for notice com- injunction, motion but it preliminary ment; (8) violation of APA be- was determining incorrect for whether arbitrary cause the rules are final NPIS dismiss entirety. the case its capricious. sought Plaintiffs declara- injunctive tory and relief. On the same “each It is well-established that day they complaint, filed the Plaintiffs III standing element of Article ‘must be injunction preliminary moved for a on supported any other way the same 1, 2, 6, and 7. The Claims District Court plaintiff matter bears the on which heard motion on October i.e., proof, burden with the manner and degree required of evidence at the succes February On the District Court ” litigation.’ stages sive of the Bennett subject dismissed case for lack of mat- 154, Spear, 167-68, 117 jurisdiction ter 520 U.S. S.Ct. because Plaintiffs lacked (1997) 1154, Lu standing, pre- (quoting and denied the motion for 137 L.Ed.2d 281 555, 561, liminary injunction jan Wildlife, and all v. 504 pending other U.S. of Defs. Watch, rulings. 3. The held & District Court also that the Indi- those See Food Water 79 196-99, vidual Plaintiffs and FWW lacked informa- F.Supp.3d at standing, appeal tional do but Plaintiffs not

913 (1992)). 2130, 112 S.Ct. 119 L.Ed.2d 351 Because what we have before us is the injunction, preliminary In order to obtain a dismissal' of complaint, Plaintiffs’ we must show, party among things, a must other “a evaluate whether have established substantial likelihood of success on the standing under the standard applicable Columbia, v. merits.” Mills District of pursuant to Federal Rule of Civil Proce- (D.C.Cir.2009) (inter 1304, 571 F.3d 1308 12(b)(1). dure omitted). nal “In quotation marks this context, plaintiff the ‘merits’ on which standing, To establish Plaintiffs must show a likelihood of success encom plausible “must state a claim that [they pass only substantive theories but also injury suffered an fairly have] fact jurisdiction.” establishment Obama traceable to the actions of the defendant (D.C.Cir.2015) 559, Klayman, 800 F.3d likely that is by be redressed a favor J.). (Williams, juris In order to establish able decision on the merits.” Humane diction, plaintiff must establish Vilsack, 4, Soc’y the U.S. v. 797 F.3d .See, B. e.g., Anthony Susan List v. Drie (D.C.Cir.2015). factual allega: “[G]eneral —haus, 2334, U.S. -, 2342, 134 S.Ct. tions of resulting from the defen (2014) (“The party 189 L.Ed.2d 246 invok suffice, may dant’s conduct for on a motion jurisdiction ing federal bears the burden of presum[e] general dismiss we alle (citation establishing standing.” and inter gations specific embrace those facts omitted)). nal quotation According marks necessary are support the claim.” Ben ly, injunc a party who seeks a preliminary nett, (inter U.S. 117 S.Ct. 1154 tion “must show a ‘substantial likelihood’ omitted). However, nal quotation marks of standing.” Klayman, 800 F.3d at 568 “we do not legal assume the truth of con J.). (Williams, A party who fails to show a clusions, accept nor do we inferences that standing “substantial likelihood” of is not unsupported by are facts set out preliminary injunction. entitled to a Id. Obama, complaint.” Arpaio v. 797 F.3d However, inability to establish (D.C.Cir.2015) (citations 11, 19 and inter standing substantial likelihood of re omitted). quotation nal marks Further quires preliminary denial of the motion for “ more, considering any chain ‘[w]hen injunction, not dismissal of the case. See allegations standing purposes, may we (Brown, J.); (Williams, id. at 562 id. reject overly speculative those links J.). party’s claim requires Whether dis (es predictions which are of future events inability missal because of an to establish pecially future actions to be taken third standing depends stage on the of the liti ” parties).’ (quoting at 21 Id. United Bennett, 167-68, gation. 520 U.S. at ICC, Transp. Union v. 891 F.2d Here, S.Ct. Plaintiffs filed their (D.C.Cir.1989)). In determining standing, complaint preliminary and moved for a may we consider materials outside of the injunction contemporaneously. When complaint. Underground See Coal. case, District Court dismissed the Defen Mineta, Expansion v. 333 F.3d answer, yet dants had not filed an and no (D.C.Cir.2003). discovery Accordingly, had occurred.

litigation proceeded past had not standard, Applying this we review

pleadings stage, standing .evalu —for Equal Rights de novo. Ctr. v. ating propriety with proceeding Inc., Props., Post case at all—should have been evaluated under the motion dismiss standard.

914 remote, conjectural, hypo- or

III. speculative, at 1293. thetical.” Id. that the Individu contend Plaintiffs first Foran, have Plaintiffs, and Sowerwine al Here, injury their Plaintiffs claim also in fact. Plaintiffs injury an of foodborne in fact is an increased risk have associational would submit that FWW unwholesome, adulterated illness See, members. behalf of its standing on the Defendants’ resulting from 995, v. e.g., Sierra Club EPA cases (D.C.Cir.2014) Inereased-risk-of-harm regulation.4 that association (explaining organization to requires injury standing requirement al implicate the show, things, that “at least among other all imminent because “[w]ere be actual or members would organization’s] one of [the increased risks deemed purely speculative sue”). the anal Because have actual requirement of injurious, the entire Plaintiffs and the Individual yses for both would be rendered injury or imminent identical, id., we are see members FWW’s moot, all nonimmi hypothesized, because jointly here. address them in up as injuries nent could be dressed injury.” Id. at 1294 risk of future Individual Plaintiffs or creased For the (NRDC II), to establish individual members EPA FWW’s NRDC v. (quoting (i) they have (internal must show standing, (D.C.Cir.2006)) 1, quota F.3d in particularized and a concrete “suffered omitted). Furthermore, “[t]he tion marks (ii) fact, by or is that was caused jury in held that repeatedly has Supreme Court the defen to the actions of fairly traceable about future events where disputes (iii) dant, of resolution and capable is any given harm to individual possibility of by judicial decision.” likely to be redressed properly are left speculative is remote and Visa, 797 F.3d v. Osborn Branches, not the Ar policymaking to the (internal (D.C.Cir.2015) quotation marks result, III courts.” Id. at 1295. As ticle omitted). Here, Plaintiffs are not jurisdiction limited its over this Court has regulation they directly subjected to the increased- alleging possibility cases ‘substantially more “standing is challenge, plaintiff where the risk-of-harm to those ” Citizen, Public Inc. difficult to establish.’ (i) in substantially can show “both Safety Admin. Highway v. Nat’l Traffic (ii) a substantial creased risk of harm and (Public I), 489 F.3d Citizen that increase tak probability of harm with (D.C.Cir.2007) Wildlife, 504 (citing Defs. of (emphasis into account.”' Id. at 1295 en 2130). In order U.S. at S.Ct. List, Anthony B. original); accord Susan fact, injury in Plaintiffs have suffered an (“An of future allegation at 2341 134 S.Ct. “(1) injury that is have suffered an must injury injury may suffice if the threatened (3) .(2) concrete, actual particularized, there is a ‘certainly impending,’ or at 1292. A concrete imminent.” Id. or “ ” harm will oc risk’ ‘substantial “direct, real, palpable —not ” Amnesty Int'l (quoting Clapper cur.’ injury is particularized Id. A abstract.” — U.S. -, USA, 133 S.Ct. individual, distinct, and differen “personal, (2013))). 5, 1150, “The L.Ed.2d 264 n. generalized or undifferentiat tiated —not poses ques of course word ‘substantial’ injury is An actual or imminent ed.” Id. fully far from degree, questions and immediate —not tions of “certainly impending standing, we address injuries argue their increased sufficient 4. Because Plaintiffs harm, alternatively, injuries separately. that the costs risk of those avoiding with that risk constitute associated Corp. resolved.” Comm’n v. motion preliminary injunction Va. State suffi- FERC, ciently establish that the NPIS substan- tially increases the of harm risk that will Although may Plaintiffs establish consuming unwholesome, arise from adul- standing by demonstrating an increased poultry. terated Defendants submit that harm, applying risk of the ‘substan “[i]n Plaintiffs have failed to demonstrate a sub- standard, tial’ ... we are mindful stantially increased risk of harm. requirement constitutional of imminence ... necessarily compels very a strict un We find that complaint, Plaintiffs’ derstanding of what increases risk and well as their various in sup- submissions overall risk levels can count as ‘substan port of their injunc- motion for preliminary ” I, tial.’ Public Citizen 489 F.3d at 1296. tion, fails to plausibly allege that the NPIS Accordingly, proper way analyze “the to taken as a substantially whole increases increased-risk-of-harm claim is to consider the risk of foodborne illness as a result of death, alleged ultimate harm —such as unwholesome, First, adulterated poultry. physical injury, property damage ...— a careful examination of allega- Plaintiffs’ as the concrete and particularized injury tions they demonstrates that have not and then to in determine whether plausibly alleged that the NPIS substan- creased risk of such harm makes to tially increases the risk of foodborne ill- sufficiently individual citizen ‘imminent’ compared ness to the existing inspection purposes.” Id. at 1298. systems. sure, To be Plaintiffs’ submis- The Individual Plaintiffs’ and FWW sions contained allegations detailed about members’ harm is the foodborne HIMP, extension, how NPIS, and consuming illness would result from differs from the existing poultry inspection adulterated, pro- unwholesome chicken ¶¶ systems. 31-77, Compl. See J.A. 16-25. duced under In the NPIS. order to have The complaint replete with what Plain- therefore, standing, at least need Plaintiffs argue tiffs are the inadequacies. NPIS’s plausibly allege that the NPIS substan- ¶¶ 78-126, Compl. See J.A. 25-29. The tially increases the risk of foodborne ill- complaint also outlines what per- when Plaintiffs compared existing ness to the in- spection ceive Accordingly, methods. are the with the HIMP order flaws studies ¶¶ satisfy two-part analysis,' 148-61, this Court’s analyses. Compl. J.A. demonstrate, the Plaintiffs must under However, these differences and (1) standard, relevant that the NPIS sub- perceived flaws do not demonstrate sub- stantially increases the risk of contracting stantial increase in the risk of foodborne foodborne compared existing illness to the illness compared under the NPIS to the (2) methods, a substantial existing inspection systems. probability that the Individual Plaintiffs To presence the extent that the of adul- and FWW members will contract food- terated, give unwholesome could given borne illness increase of risk. resulting rise to an inference of foodborne A failure to satisfy either of these prongs illness, allegations these still fall short be- deprive jurisdiction would this Court of allege cause fail to the NPIS as I, hear Plaintiffs’ case. See Public Citizen whole will produce significantly more adul- 489 F.3d at 1295.

terated, compared unwholesome chicken A. existing inspection systems. Plaintiffs’ allegations focus on certain. argue Plaintiffs their com discrete as- plaint in support pects submissions of their of the NPIS: the reduced number of allegations Notably, these inspectors, speed poultry. ated federal

online allege must that results are worse inspectors do not these the online federal which carcasses, plants existing inspec- do of than what under and the substitution evaluate Thus, they plausibly fail to inspec- systems. tion personnel for federal establishment ¶¶ substantially 78-121, allege regulations that Compl. J.A. tors. See of illness. However, contains increase the risk foodborne complaint Plaintiffs’ single that references only allegation support in of Plaintiffs’ submissions key aspect the reallo- another the NPIS: preliminary injunction for suf- their motion inspection. resources for offline cation of affi- the same The sworn fer from defect. ¶ NPIS, 183, J.A. Compl. 39. Under existing inspectors go davits from USDA inspectors offline verification additional be- great detail about the differences into proto- inspection to see to that will check in- existing poultry tween the NPIS and being patho- conduct cols are followed and spection systems. inspector explained One 4422. Fed.Reg. at gen testing. See 77 systems, existing inspection that under the allegation no complaint Plaintiffs’ makes line, they “would have 3 on each inspectors impact increased offline regarding the of them, per split among 90 birds minute with of inspectors presence on the verification inspector looking at 30 so that each was adulterated, Al- poultry. unwholesome HIMP, per minute” one birds but under for fail- though Plaintiffs fault Defendants birds, looks “at inspector up to in online to account a reduction ing more, minute.”5 Another per J.A. 298. assessment, in risk inspectors Defendants’ claimed, inspector “I know I cannot detect in- failure for the Plaintiffs’ to account Safety all of the carcasses with Food de- at- in offline and their inspections crease fects, that and it is reasonable to assume pre- impact poultry production on tendant out J.A. going public.” some are to the NPIS as a inferring us from vents said, inspector A third “I know the substantially the risk of whole increases unwholesome, mutilated, of and dis- kinds illness. foodborne processed eased chickens that are impor- for sale I it complaint shipped reveal out and feel allegations Other in the this con- problem. example, the com- tant to share information with the same For taxpayers” the HIMP personnel’s outlines HIMP sumers and plaint system having “is tantamount failure to catch disease-related conditions (“An ¶ henhouse, proverbial watch the but poultry. Compl. on J.A. wolves could analysis they 14 HIMP chickens are real and the data for these FWW hurt [Noncompli- very likely that or kill someone.” J.A. plants found out of 229 August inspector previ- filed Another who worked Reports] ance from March (90 company ously fecal for a chicken percent) production were for visible currently inspector by compa- and serves as a USDA contamination was missed poultry Although allega- pressures these outlined the various ny employees.”). tions, best, to increase give production personnel to the inference are under rise shipped as are out will not be the number birds that personnel that establishment Although J.A. 32124. identifying poultry, adulterated to consumers. effective alarming, even allege may as these statements be they do not how NPIS true, they there allege impact will the amount of adulter- taken do a whole rule, high. claim this number remains too higher number is than the final Plaintiffs 5. This 92-99, ¶¶ speed young Chickens to Compl. which limits J.A. 27. Fed.Reg. per 140 birds minute. 79 substantially is a increased risk of food- also submitted selections from an FSIS allege report borne illness because do not scenarios, found under some “a unwholesome, 0.2% proportion that the risk of increase samples adulterated testing Campylobacter higher positive,” under the but NPIS as page same report this existing than the concluded that inspection systems. whole scenarios, under projected most the sam- Plaintiffs could perhaps overcome this ples testing positive for Salmonella or deficiency by providing the Court with an Campylobacter would decrease. J.A. 430. alternative basis from which to infer that Plaintiffs also that 0.1% of Campy- inspection NPIS results in a substantially lobacter illnesses would be attributable to unwholesome, increased risk of adulterat- the NPIS “under some scenarios.” Here, if poultry. plau- ed Plaintiffs could ¶ 180, Compl. J.A. 39. Plaintiffs likewise sibly allege through their use of statistics relied on Defendants’ risk assessment as- poultry that NPIS a creates substantial sumption that annual Salmonella illness, increase in the risk of foodborne Campylobacter illness “attributable] allege a would sufficient 174,686 poultry 169,005, are about re- have, standing. in past, We refused to spectively.” J.A. 430. plucked Plaintiffs require a quantitative analysis in order to these statistics from Defendants’ studies in establish increased-risk-of- provide but allegations no from which we cases, II, harm see NRDC 464 F.3d at can infer that the statistics reflect a sub- and we likewise to hold that statis- refuse stantial increase the risk of harm. In- required However, tics are for such cases. deed, Defendants’ risk assessment con- “[determining we remain mindful cluded under most scenarios that annual complaint plausible whether a states a illnesses from Salmonella and Campylo- claim injury] context-specific, requir- [of bacter unchanged would remain or would ing reviewing court to draw on its decrease under the NPIS. J.A. 430-31. experience and common sense.” Ashcroft Even complaint Plaintiffs’ acknowledges 662, 663-64, Iqbal, 556 U.S. 129 S.Ct. Campylobacter risk of increase is (2009). 173 L.Ed.2d 868 According- ¶ “ambiguous.” Compl. J.A. An ly, plaintiffs where a allegations incorpo- ambiguous increase in hardly risk is rate plaintiff statistics and the contends substantial increase risk. that the statistics demonstrate substan- Plaintiffs’ statistics suffer from addition- harm, tial increase in the risk of plain- First, problems. al predate these studies tiff allege something must from which the the final Although rule’s amendments. Court can Using expe- infer risk. our itself, necessarily problem by the rule’s sense, rience and common we cannot make specifically amendments lowered the line this inference from Plaintiffs’ statistics. (one criticisms) speeds of Plaintiffs’ chief A review of Plaintiffs’ statistics demon- and made the transition to inspec- NPIS plausibly strates their failure to allege a voluntary. tion allega- Plaintiffs make no substantial increase in the harm. risk of impact changes tions about the of these on point Plaintiffs to isolated statistics where Furthermore, their statistical claims. Defendants found Salmonella rates to be Plaintiffs fail account for how increased “higher” in chicken processed in HIMP inspections allocations in offline im- would establishments than in context, non-HIMP estab- pact the risk. In this Plaintiffs’ lishments, complaint spec- but the does not plausibly allege statistics do not that NPIS ify higher how much substantially rates were. See as a whole increas- ¶¶ 162-164, Compl. J.A. 35-36. es poultry Plaintiffs the risk that will be contaminat- cost, that such making clear increased Campylobacter or ed with Salmonella sys- existing inspection incurred due to their fear to the would be compared costs failed to Plaintiffs have Because poultry pro- tems.6 illness from contaminated that, substantial- the NPIS plausibly allege Foran ex- the NPIS. Jane duced under unwhole- producing the risk of ly increases may poultry concern NPIS pressed to the some, compared poultry adulterated family and [her] [her] “cause harm to they do not systems, existing inspection health,” eating chicken leading “stop her to standing.7 have and to “look for farmers’ in restaurants” ¶¶ 11, 13, co-ops.” Foran Decl. markets or B. explained Margaret Sowerwine J.A. that their avoid- Plaintiffs also contend that there will be that she was “concerned alternatively the poultry, NPIS ance of lower-quality poul- contaminated and moré seeking out cost of increased product try” may “purchas[e] and that she sources, injury in fact other constitutes make sick.” Sowerwine [her] that could argue Plaintiffs to establish ¶¶ result, 7, 9, As a she Decl. J.A. 53-54. po- to avoid steps taken these they have farmer” for her to “find a local planned NPIS-produced poul- injury from tential in increased resulting poultry purchases, that complaint alleges try. Plaintiffs’ completely if she avoiding poultry costs or who wish to continue FWW “[m]embers ¶ 10, Wendy afford it. Id. J.A. 54. cannot additional spend chicken will have eat purchasing Davis feared that she “will be purchase poultry to seek out resources [her] that could make product [her] NPIS, if adopted that have not plants from Decl. or even die.” Davis husband sick members that possible. is even FWW this ¶ 8, “con- 59. Alina Pittman was J.A. inspec- in all confidence USDA’s have lost NPIS rules will cerned USDA’s simply eating avoid chick- legend tion will turkey chicken and that is allow for more ¶ 6, altogether.” Compl. J.A. en unwholesome,” will which not safe support of their Plaintiffs’ declarations for farmers’ markets” cause her to “look injunction contain preliminary motion for a considerably.” go up will and where her “costs allegations more detailed avoidance approach to increased-risk-of- do 628. Baur's 6. Our conclusion that Plaintiffs' statistics plausibly allege controversy. a substantial increase without not harm cases is not does mean that a the risk of harm here (noting Corp., 468 F.3d at 848 Va. State allege plaintiff plausibly never such an could among circuits about what in- conflict through the use of statistics culled increase support crease in risk must be shown to government-conducted studies that from I), (NRDC standing); 440 F.3d NRDC v. ERA contrary plaintiff's to the reach conclusions 476, (D.C.Cir.2006), by rh’g vacated en 484 Rather, that, allegations. to the it means banc, II, (noting poten- 464 F.3d 1 NRDC plaintiff extent a relies on statistics to show reasoning). “expansiveness” tial of Baur's harm, a increase in the risk of substantial However, any controver- we need not resolve allege plaintiff cannot a bare statistic without Although passing refer- sy here. Baur makes alleging plausibly how the statistic reflects "a increase in the risk of ence to moderate increase in the risk of harm. substantial disease,” 637, Circuit’s rea- id. at the Second plain- soning probability focused on the us to follow the Second Cir- 7. Plaintiffs ask harm, id.; I, suffering NRDC see see also tiff approach to increased-risk-of-foodborne cuit’s (describing Baur in the con- 440 F.3d 483 Veneman, in Baur v. 352 F.3d illness outlined harm). probability Be- text of increased Baur, (2d Cir.2003). In the Second Cir- standing on the cause we resolve Plaintiffs’ exposure to an enhanced risk cuit held "that analysis, I prong the Public first may qualify injuiy- Citizen of disease transmission analysis impact here. Baur does not our ... Id. at in-fact in consumer food suits.” ¶¶ 10, 14, Davis Decl. J.A. 65. Plain- that impart does not standing.” Nat’l Union, argue Taxpayers tiffs these avoidance costs are States, Inc. v. United injuries (D.C.Cir.1995). not self-inflicted and are sufficient F.3d “The to establish court distinguished has between organiza- allege tions that that their activities have In Clapper, Supreme Court impeded been from those merely al- explained plaintiffs “cannot manufac lege that their mission has been compro- standing merely by ture inflicting harm on Abigail mised.” All. Better Access to themselves hypo based on their fears of Developmental Eschenbach, Drugs v. thetical future harm that is not certainly F.3d Accordingly, impending” injuries because such “are not for FWW to establish in its own fairly traceable” to the creating conduct right, it must have “suffered a concrete that fear. 133 S.Ct. 1151. “[Other demonstrable activities.” [its] wise, an enterprising plaintiff would be USDA, PETA v. able to secure lower standard for Article (D.C.Cir.2015) (internal quotation marks standing by III making expenditure omitted). Making this determination is a a nonparanoid based on fear.” Id. As two-part ask, first, inquiry whether —“we explained III.A, in Section Plaintiffs have agency’s action or omission to act in- not plausibly alleged face a sub jured [organization’s] and, interest sec- stantial increase in the of harm risk ond, organization whether the used its re- NPIS-produced poultry. Just as the re sources to counteract that harm.” Id. at spondents in Clapper repackage could not (internal omitted). quotation marks theory their “first failed of standing” as a We need not prong address the second of id., costs, theory of Plaintiffs here cannot inquiry this it because is clear that FWW standing by establish incurring costs that sufficiently has not alleged injury an to its simply product “are the of their fear of’ interest. poultry, NPIS at Accordingly, id. injuries Plaintiffs’ “self-inflicted are not allege To injury an to its inter fairly NPIS, traceable” to the “and their est, “an organization allege must subjective fear ... give does not rise to perceptibly defendant’s conduct impaired standing.” at Id. 1152-53. organization’s ability provide to ser vices in order to injury establish in fact.”

IV. FERC, Irrigation Turlock Dist. v. (D.C.Cir.2015) (internal argues 18, FWW that it has stand F.3d quota omitted). ing pursue to its claims on its own behalf. tion organization’s marks An may FWW ability assert on its own be provide to services has been percep half, organizational standing requires but tibly impaired when the defendant’s con FWW, plaintiff, “like an individual to show duct an organiza causes “inhibition of [the actual injury or threatened in fact that daily operations.” tion’s] 797 F.3d PETA fairly alleged illegal traceable to the (quoting action at 1094 Action All. Senior Citi of likely Heckler, to be redressed a favorable zens Greater Phila. v. 789 F.2d Ctr., (D.C.Cir.1986)). court Equal Rights decision.” precedent Our (internal F.3d at quotation organization’s marks makes clear that an use of omitted). organization An allege litigation, must resources for investigation an more than a purpose frustration of its ticipation litigation, advocacy is not organization’s because frustration of an give ob sufficient to to an III rise Article jectives type 1093-94; “is the of abstract concern injury. Irrigation Id. at Turlock

Dist., Furthermore, increase the amount of that will F.3d at 24. “FWW encouraging it its injury spends in resources does not suffer an organization to continue eat members wish to resources to edu- who “expend[s] fact it where from such poultry compa- chicken to avoid doing others” unless cate members and its at farmers’ purchase poultry to nies” and “to organization “operation- subjects so normally producers.” markets or direct from Id. expended.” beyond al those costs ¶ Inc., Union, J.A. 71. 68 F.3d Taxpayers Nat’l 1434; Ass’n Home Build- also Nat’l see make clear that Lovera’s statements (D.C.Cir.2011) EPA, 6, 12 ers v. 667 F.3d has no more than an ab- FWW (organization’s expenditures must be interests. Our recent stract to its “ normally beyond those ‘operational costs PETA instructive. In decision in mis- expended’ carry advocacy out its to PETA, organization an animal-welfare Union, Taxpayers sion” Nat’l (quoting failure to challenged apply the USDA’s 1434)). F.3d at statutory welfare general require- animal Lovera, ments birds. 1089-91.

According to Patricia the Assis- FWW, Ordinarily, applied one of FWW’s when USDA tant Director requirements, animal welfare outside “primary public is to educate the purposes safe, organization PETA could re- systems guarantee like seek about food by filing dress for mistreatment a com- produced food a sustainable wholesome ¶ 4,8 with Because the plaint Decl. As a the USDA. USDA Lovera J.A. 68. manner.” requirements refused those result, apply concerned that NPIS will FWW is birds, trained PETA could not seek redress for inadequately inspect allow staff to through safety will be- mistreatment of birds food that food suffer complaint procedures. to USDA’s Id. at will be turned over cause ¶¶ personnel. Additionally, 8- USDA Id. establishment 69-70, requirements applying was not Lovera contends J.A. birds, the in- go generating NPIS to into effect USDA was allowing the organization organization’s spection reports will “all of the time cause used to members. The spent advocating against educate its resources ¶ 10, agency injured organization wasted.” Id. inaction been] NPIS have [to suffered a organization also claims that “FWW because the “deni- J.A. 70. Lovera ... al of to increase the access to bird-related informa- would have resources general including, particular, investigatory tion in spends educating public it on information, by do and a means which to and its members NPIS rules seek for bird abuse” Id. at 1095. not allow for the redress ¶ 11, injuries to product by the We found these be “concrete prescribed PPIA.” Id. specific in which Additionally, spend J.A. “FWW will to the work” the or- (quoting Id. Ac- money increasing ganization engaged. time on its efforts to was 938). All., just tion The denial of public members of the 789 F.2d educate access to for redress and denial poultry product has a USDA an avenue impaired it inspection legend “perceptibly [the does not mean that information bring organization’s] ability to both [statu- and is Id. adulterated wholesome.” ¶ 12, Finally, tory] to the attention of the Lovera states violations J.A. paragraphs. erroneously refers to of those contains two the second The declaration paragraphs numbered as This citation "4." agency charged preventing with avian Biological sue.” Ctr. Diversity v. U.S. cruelty Interior, and continue to pub- Dep’t educate the 563 F.3d (internal (D.C.Cir.2009). lic.” quotation marks omit- “[DJeprivation proce- of a ted). right dural without some concrete interest by is affected the deprivation pro-—a case, In present taking all right cedural in vacuo—is insufficient to allegations of FWW’s and Lovera’s state create Article III standing.” Summers v. true, alleged ments as FWW has nothing Inst., 488, 496, Earth Island 555 U.S. injury more than an abstract to its inter (2009). S.Ct. 173 L.Ed.2d 1 As ex- ests that is insufficient to support stand plained in the foregoing, Plaintiffs have ing. allege FWW does not that the NPIS failed to that they establish will any suffer ability limits its to seek redress for a cognizable injury. Because Plaintiffs “have violation of law. allege Nor does FWW they failed to establish that likely will suf- that the USDA’s action restricts the flow fer a substantive injury, their claimed pro- of information that FWW uses to educate injury cedural ... necessarily fails.” Sier- Although its members. alleges Lovera EPA, ra Club v. spend will educating FWW resources its members public and the about inspection legend, NPIS and USDA noth VI.

ing Lovera’s declaration indicates that organizational FWW’s activities have been reasons, For the foregoing we hold that perceptibly impaired in any way.9 Accord Plaintiffs have any failed to show cogniza- ingly, has injury FWW not ble sufficient to establish standing. its to give organizational interest rise to Accordingly, we affirm the District Court. So ordered. V. HENDERSON, KAREN LECRAFT Plaintiffs’ final standing argument Judge, concurring Circuit judgment: on the basis of procedural injury easily they resolved. Plaintiffs claim that Although agree have I my colleagues with procedural suffered a injury sufficient to that organizational the individual and establish plaintiffs because Defendants vio standing, do not have I so con- However, procedural lated their rights. for a Regarding clude different reason. procedural requirement “the omission of a plaintiffs, the two individual I believe we not, itself, give party does standing to need not assess whether face a “sub- 9. The concurrence organization’s contends that FWW has fendant's conduct and the mis prong organizational met the necessary though first of the sion is not alone suffi — because, standing analysis taking standing.” Treasury FWW's alle- cient —to establish Nat'l true, gations States, 1423, complaint Emps. as the has Union v. United 101 F.3d (D.C.Cir.1996); "direct conflict” between the Soc’y NPIS and 1430 see also Am. for Op. FWW’s mission. Cruelty Cone. at 924-25 n. 5 Prevention to Animals v. Feld of (Henderson, J.). However, Entm’t, Inc., 13, (D.C.Cir.2011) even FWW if 659 F.3d 25 conflict,” ("If allege were to a "direct challenged organi an issue on the conduct affects an activities, express opinion, which we no respect FWW would zation’s but is neutral with mission, allege injury still need to to its interest. to its substantive we have found it organization alleg- those 'entirely speculative’ challenged "[I]n cases where an whether the that a practice actually impair organiza es defendant’s conduct has made the will the difficult, organization’s (quoting Treasury activities more the tion's activities.” Nat’l Union, 1430)). presence Emps. of a direct conflict between the de- 101 F.3d at

922 establish “reasonably] price[d]” not to of harm and ... stantially increased risk Foreman, harm” from con 631 probability standing. Public Citizen v. substantial (NPIS (D.C.Cir.1980). poultry 969, n. 12 And suming NPIS-inspected F.2d High they v. Nat'l only see Citizen poultry), plaintiffs Public assert because Admin., 1279, 489 F.3d way Safety from local “seek chicken [both] out Traffic farm (D.C.Cir.2007) in original), (emphases grocerfs],” Foran ers’ market[s] [and] clear, because, make ¶ declarations added), their they 3, (emphasis Decl. J.A. consuming alternative they have the out access have failed to do so.1 To rule by purchasing poultry e.g., non-NPIS prong, under to alternative the first — they from a farmers’ market —and poultry to obtain.” alternative must be “difficult to that the alternative is allege have failed Mercury-Free Drugs, See Coal. for readily at reasonable “not available omitted). It is not (emphasis F.3d at 1281 Mercury-Free Drugs See price.” Coal. some, for enough, example, allege for (D.C.Cir. Sebelius, F.3d it. many, suppliers provide not or even do 2012) original). For this rea (emphasis prong, id. See at 1282. Under the second son, consuming any injury they suffer allege than “the plaintiffs must more injury that NPIS is a self-inflicted differential,” id.; price mere of a existence Article III would not establish instead, they product must claim that the & Regarding plaintiff Food Water Watch reasonably priced. id. at 1282- See (FWW), reject organizational I its would Notwithstanding neither assertion standing argument only expen its Foreman, “overly burdensome,” 631 F.2d “pure are made for issue-advoca ditures 12; Mercury-Free at 974 n. see Coal. for support cy,” an insufficient stand Drugs, dif (price 671 F.3d Ctr. ing under our See Law precedent. “little ef ferential must have more than Educ., Educ. v. Dep’t & “affordability fect” on alternative’s average person”), plaintiffs’ failure allege they plaintiffs The individual un affirmatively allege unavailability or the poultry cannot determine whether inquiry. cost should end our reasonable they buy at stores is grocery NPIS-in- Wildlife, 504 U.S. Lujan See v. Defs. of time, and, at same that NPIS spected 555, 561, 112 119 L.Ed.2d 351 S.Ct. for 99.9% of available poultry accounts (1992) (“[t]he juris party invoking federal ¶ Compl. See 34. If the poultry. plaintiffs establishing” diction bears the burden of purchasing poultry in fact limited to were standing). stores, likely I grocery too would most Granted, plaintiffs’ the two individual increase sub- conduct “substantial vague are the cost and declarations about my probability” inquiry stantial colleagues accessibility farmers’ but markets Maj. Op. But undertake. are their plainly insufficient to sustain is not our prece- the case. Under ¶ 6, my Decl. dent, view. See Foran plaintiff if a has access an alterna- unable farmers’ product (plaintiff claims J.A. 48 to find tive of he causes his residences); family also injury, he market near see must show alternative (1) (2) Decl, 1; readily supra FWW is either “not available” Sowerwine n. cf. ¶ 10, ("If go have rules into effect.... I would 1. See also Sowerwine Decl. J.A. 54 USDA's markets”). Critically, go ... the the USDA’s into I will have to look for farmers’ rules effect plaintiffs allege at farmers’ from sold to find local farmer whom I trust "slaughtered sanitary purchase turkey.”); condi- chicken and FWW markets is cf. 3, ¶ 10, ¶ ("If e.g., J.A. 48. J.A. See Foran Decl. Member Decl. 64 tions.” Pittman ¶ (“tur- 10, Pittman Deel. they member J.A. incurred to avoid surveillance were key always year is not available a cognizable injury, themselves concluding —round” market). at preferred farmers’ But [sic] that “allowing respondents bring this allege plaintiffs supporting no facts action based on they costs incurred in that poultry notion from farmers’ markets response speculative to a threat would be unreasonably is either unavailable or tantamount to accepting repackaged ver best, priced.2 allegations ag- At their are sion of respondents’ first theory failed of proximity, inventory nostic about the and standing.” Id. at Clapper subse markets, is, me, pricing nearby which quently respondents’ dubbed the “avoid insufficient to conclude that non-NPIS injury ance” “self-inflicted.” Id. at 1152. poultry is either “difficult to obtain” or I take from holding this attend price differential is sufficient to ant on the avoidance an uncognizable “affordability average affect for the per- injury is itself insufficient for standing be Coal, Mercury-Free son.” Drugs, 671 for cause, for one it thing, self-imposed. omitted). 1281,1283 (emphasis F.3d Here, plaintiffs’ individual professed plaintiffs The individual op- have two injury from eschewing poultry altogether They purchase/consume tions. can either similarly self-imposed therefore in —and (ie., the source of their alleged injury sufficient for standing they are —because poultry) NPIS or can avoid it. Avoid- purchase/consume free to poultry that is presents ance then possibilities. They two neither “difficult to obtain” nor “unreason stay away can poultry altogether ably priced.” Coal. Mercury-Free for they can purchase/consume non-NPIS 1281, Drugs, 671 F.3d at (emphasis poultry. Clapper In v. Amnesty Int’l omitted).3 —USA, -, 1138, U.S. 133 S.Ct. I believe this case is on all fours with (2013), L.Ed.2d 264 Supreme Court Coalition Mercury-Free Drugs. respondents’ concluded that the in- for There, plaintiffs challenged the Food jury telephone their —likelihood (FDA) Drug approval Administration’s email intercept- communications would be thimerosal, of the was, mercury-based ed use of domestic for surveillance — reasons, many speculative preservative, too certain support vaccines. Coal.for standing, rejected Mercury-Free Drugs, id. at 1147-50. It then 671 F.3d at 1276-77. respondents’ argument plaintiffs that the costs The alleged a “fear of future Granted, alleges 2. FWW Clapper member Pittman that “costs decided at the was sum markets, go up considerably” will at farmers’ 1146, mary judgment stage, 133 S.Ct. at "ground turkey per $12 where alone is we here review dismissal. & Food Water ¶ pound.” Pittman Decl. J.A. 64. I find Vilsack, F.Supp.3d Watch v. inadequate her assertion for two reasons. (D.D.C.2015); Maj. Op. Although First, price she does not mention the showing necessary standing to establish var ground turkey grocery.store (presum- at her stage litigation, Abigail ies at each of the see Second, ably selling turkey). assuming NPIS Developmental Alliance Better Access to "turkey that her reference to bacon and deli Eschenbach, Drugs v. 469 F.3d costing per pound” grocery "$9 meat” at her (D.C.Cir.2006), plainly nonetheless we can store, ¶ 3, per id. J.A. $3 results in a uphold dismissal of claims for lack stand pound price ground turkey increase in ing, including lack of based on self- markets, farmers’ I cannot conclude that this injury. e.g., Emp't inflicted Fair Council price threadbare differential recital suffices to Inc., Washington, Marketing Greater v. BMC “affordability average establish that for the of Corp., Coal, 1268, 1271, (D.C.Cir. person” Mercury-Free is affected. 1994). Drugs, 671 F.3d at 1283. And, con accordingly, we it mercury,” claiming that self-inflicted. to exposure autism, standing. and “miscarriages, plaintiffs lacked cause cluded that the could Id. developmental disorders.” other See id.4 But the 1278, original). (emphasis FWW, organiza- our plaintiff Regarding thimerosal allege that did not plaintiffs jurisprudence applies a standing tional readily available at vaccines were

free whether an or- test to determine two-part Id. the 1282. “On price. a reasonable injury. alleged cognizable has a ganization “they that recognized, contrary,” sa[id] we Inc., Props., v. Post Equal Rights Ctr. thimerosal-preserved refuse they w[ould] (D.C.Cir.2011). Litigation 633 F.3d Id. at 1280. Given the exis vaccines.” against gov- a brought by organization reasonably readily available and of a tence ask, first, requires that we entity ernment alternative —the priced thimerosal-free action or omission to agency’s the whether [having] claim[ed] “declarations plaintiffs’ interest “injured [organization’s] the act there was some differential price only that and, second, [organization] whether outlets,” id. at 1283 at a few individual that to counteract used its resources added) any injury expo (emphasis — Id. at 1140 marks (quotation would be harm.”5 thimerosal-based vaccines sure to Foreman, hand, organization's mis- inapposite. conduct and the is fendant’s on the other omitted)); There, (quotations See also PETA v. challenged ap- plaintiffs the FDA’s sion.” 1087, nitrites, USDA, (D.C.Cir.2015) probable whose 797 F.3d proval of the use of (“[W]e undisputed, emphasized as a ba- direct carcinogenic effect was the need for a have 631 F.2d. at 973-74. Be- preservative. con defendant's conduct and conflict between the pre- bacon plaintiffs organization’s (quotations cause the omit- mission.” readily Alliance, nitrites was “not ted)); without served Abigail 469 F.3d at 133 price,” id. at 974 n. at a reasonable ("[T]here available ... be a direct conflict be- must added), (emphasis we concluded organ- and the tween the defendant’s conduct plaintiffs had mission.”). my colleagues, I Unlike ization’s distinguish- similarly v. Veneman is Baur prong. Its mission believe FWW satisfies this Cir.2003). (2d There the able. 352 F.3d 625 “maintaining strong inspec- federal includes challenged Depart- plaintiffs United States "working] promote poultry” tion of (USDA) Agriculture's failure to "ban ment policies will practices and result livestock as food for hu- the use of downed systems.” Lov- sustainable and secure food consumption.” The court Id. at 628. man ¶ 4, (reference paragraph era Deck J.A. 68 any plaintiffs had whether the did not discuss "4”). paragraphs numbered 4 is to second of way that did not come from to obtain meat alleges "threaten[s] And FWW that the NPIS however, Here, plain- downed livestock. unwholesome public introduces] health and posit markets from farmers' tiffs Compl. poultry into interstate commerce.” injury allegedly expose them to the does not 1, course, ¶ purposes ruling "[f]or J.A. 9. Of resulting poultry. Deck from NPIS See Foran standing, dismiss for want of on a motion to ¶ 3, Although Baur did not discuss J.A. 48. reviewing ac- courts must both the trial alternative, safe, allegedly the absence allegations cept all material of the as true approving- suppliers, meat the Second Circuit Seldin, complaint.” Worth v. 422 U.S. that, proposition if an ly for the cited Foreman (1975). It 45 L.Ed.2d 343 95 S.Ct. available, allege plaintiff must alternative is spent on only FWW's resources are readily available at a reasonable is "not it infra, issue-advocacy,” explained "pure price.” at 634. lacking. My colleagues, standing I that its believe, erroneously injected prong- have view, requires only my prong the first In i.e., spent what FWW has two plaintiff organiza- consideration — "direct conflict” with prong-one in- money combat—into the its Soc'y. Prevention Am. tion's mission. "directly Entm’t, quiry the NPIS conflicts” whether Cruelty to Animals v. Feld distinguish They PETA (D.C.Cir.2011) ("First, mission. organization with FWW's highlighting the prong by simply under one seeking [organizational] establish Maj. Op. In agency's omissions. between the de- show a direct conflict must

925 omitted). FERC, prong, cacy.” Irrigation second we Turlock Dist. v. Under the “pure for is- expenditures have held that 24 786 F.3d FWW’s for sue-advocacy” are insufficient it allegation expendi sole has made Educ., 396 F.3d at 1162 See Ctr. Law & challenged tures based on the NPIS re for (D.C.Cir.2005) (“Here, only the ‘service’ gime educating is tied to its members and issue-advocacy.... In impaired pure public.6 essence, the In FWW seeks to sum, fail to Appellants demonstrate stand- regarding dangers sound an alarm the Morton, ...”); v. ing. Sierra Club cf. poultry. “pure NPIS This is issue-advoca 727, 739, L.Ed.2d U.S. S.Ct. Educ., cy.” & Ctr. Law 396 F.3d at for (1972) (“[A] in prob- mere ‘interest 1162. ... by lem’ is not sufficient itself to render Moreover, I believe our decision in ‘adversely organization the affected’.... There, distinguishable. PETA is PETA ‘special subject in were [a] interest’ [I]f fill expenditures made to a void left the enough [plaintiff] to entitle the to com- when, PETA, according USDA to litigation, appear mence this there would unlawfully apply pro- USDA failed to objective upon to be no basis which to Act, tections of the Animal Welfare by any disallow a suit other bona fide §§ seq., U.S.C. 2131 et to birds. Id. at ”). In ‘special organization.... interest’ “meant, 1091. ipso facto, Its failure words, organization’s other an “ex- creating the USDA was not bird-related resources to educate its penditure of] inspection reports that PETA could use to regarding” govern- members and others Thus, public raise awareness.” PETA present ment action or inaction “does not “required expend was resources to ob- in fact.” e.g., Taxpay- an Nat’l tain information .the about conditions of States, Union, ers Inc. United ..., including through investigations, birds (D.C.Cir.1995) (non-profit tax- state public research and and local records qua organization had payer organization PETA requests.” Id. suffered a standing only expenditures no where its injury-in-fact cognizable spent because it gift federal estate and tax rates contest remedy alleged governmental resources to public challenge were made to educate nonfeasance, deprived which PETA of in- Educ., legislation); Law & Ctr. for allegedly formation to which it was enti- (organization F.3d 1161-62 lacked act, But failure to tled. USDA’s standing govern- where unlawful “PETA not need to undertake” would lobbying only). ment action costs increased id., basis, efforts, and, Instead, those on that we organizational plaintiff must expenditures that PETA’s con- “allege impairment ability provide of its concluded services, only cognizable injury. of its advo- stituted a Id. at 1097. impairment [not] stopping point, they complete general public and members that the NPIS at that do not its is, prong-one analysis, that whether or not poul- allow rules do not or, PETA, agency what the in fails to does— try product prescribed by [Poultry Prod- organiza- do—is in direct conflict with the Act],” Inspection ucts "educate members tion’s mission. public just poultry product hand, organization can— On the other inspection legend mean has a USDA does not here, necessary does—show the direct that it not adulterated” and "increase the expend but nonetheless resources on conflict encourag- spends amount of resources that it support standing, matters we have said do not ing who wish to continue to' eat its members Otherwise, e.g., advocacy. issue our two- compa- avoid such chicken to pronged merges prong. inquiry into one nies”). ¶ 11-13, (ex- Decl. J.A. 70-71 See Lovera plaining plans that FWW "educat[e] about my continuing concerns

Granted, organizational reiterate found we have doc litigation organizational-standing on the this Court’s private-party to educate the it disparity made unwarranted expenditures trine and the basis Spann v. Colonial example, For public. between individu spawned seems to have Inc., Housing Council of the Fair Village, ability bring suit. organizations’ als’ and Metropolitan Washington and Greater the Ethical Treatment People for Planning Housing & Associa- Washington Agricul Dep’t States Animals v. United racially-motivat- challenged allegedly tion (D.C.Cir. ture, 1099-1106 by placed ed real estate advertisements 2015) dubitante). (Millett, J., Because the advertisers, claiming the ads realtors majority opinion properly applies prec our Act Housing of 1968. the Fair violated keep jurisprudential a bad situa edent to We F.2d 25-26 worse, I But I concur. getting tion from standing had organizations held organizational to believe that our continue funds on “endeavors spent be revisited in an standing doctrine should buy- ... black home designed to educate case. appropriate area real renters D.C. [and] ers and industry public that racial estate illegal.” housing is indeed

preference made clear that Spann at 27. But also bright-line be- circuit has drawn

our and “suits suits private-party tween America, Appellee STATES of UNITED compel against government take, taking, from certain state to or desist “implicate at 30. The latter action.” Id. BELL, Gregory also known as separation powers, acutely the most Boy-Boy, also known as instructs, which, Court is the Supreme Bunga, Appellant. the Article III idea’ on which ‘single basic 08-3037, The requirement is built.” Id. standing Nos. contrast,

former, grist by are “traditional Appeals, Court of United States Thus, if judicial mill.” Id. for the an.or- District of Columbia Circuit. litigation pursue ganization’s premised only against government Dec. to ed- injury flowing expenditures on McLeese, III, At- Roy Esquire, U.S. W. public, the suit amounts to no ucate the Office, DC, Washington, Ap- torney’s generalized “assertion] [of] more than an pellee. about the conduct of Govern- grievances omitted),

ment,” (quotation at 27 marks id. Becker, Robert Law Offices of Robert S. lacking. organizational standing Becker, DC, Washington, Appellant. S. reasons, I concur in foregoing For the GARLAND, Judge; Before: Chief judgment. TATEL,

HENDERSON, ROGERS, MILLETT, Judge, concurring: Circuit *, BROWN, GRIFFITH, KAVANAUGH PILLARD, SRINIVASAN, **, MILLETT for the join Judge opinion I Wilkins’ WILKINS, Judges. only to and Circuit separately Court in full. I write * 08-3037, is attached. Judge Kavanaugh, con- Bell in No. A statement Circuit lant curring petition appel- in the denial of the

Case Details

Case Name: Food & Water Watch, Inc. v. Thomas Vilsack

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 22, 2015

Citation: 808 F.3d 905

Docket Number: 15-5037

Court Abbreviation: D.C. Cir.