Center for Food Safety v. Perdue

Background

The plaintiffs were Food & Water Watch, the Center for Food Safety, the Humane Farming Association, and Robin Mangini. They challenged the U.S. Department of Agriculture’s Modernization of Swine Slaughter Inspection Rule, which created a voluntary New Swine Inspection System for market-hog slaughter establishments. The rule permits plant employees to sort animals and carcasses before federal inspectors perform their inspections and also changed the allocation of federal inspection resources.

Plaintiffs claimed that the rule violated the Federal Meat Inspection Act because it transferred inspection duties from federal inspectors to plant employees. They also claimed that the agency violated the Administrative Procedure Act by arbitrarily and capriciously departing from earlier inspection practices, relying on an inadequate HIMP pilot program and data analysis, and relying on a risk assessment without providing enough opportunity for public comment on its revisions. The court had previously granted plaintiffs’ request to voluntarily dismiss their fourth and fifth claims for relief with prejudice.

Standing and evidentiary issues

The court rejected defendants’ renewed challenge to Article III standing. Plaintiffs submitted declarations from former federal public-health veterinarians and members who regularly consumed pork. The court concluded that plaintiffs had provided sufficient evidence of an injury involving exposure to pork products from establishments using the new system. The court stated that defendants’ arguments about whether the new system actually created a higher risk were intertwined with the merits and could not be resolved against plaintiffs at the standing stage.

Plaintiffs also submitted counsel’s analysis of data concerning inspections and food-safety violations. The court held that the analysis was not a summary of voluminous evidence admissible under Federal Rule of Evidence 1006. However, it considered the analysis of post-2013 data under an exception allowing review of material outside the administrative record when needed to determine whether the agency considered relevant factors and adequately explained its decision. The court did not consider counsel’s calculations challenging the agency’s analysis of earlier data as merely a more understandable presentation of the record.

Federal Meat Inspection Act

The court held that the rule did not violate Section 603(a), which requires federal inspection of animals before slaughter and separate slaughter of animals showing symptoms of disease. Under the new system, plant employees sort animals into “Normal” and “Subject” pens, but federal inspectors inspect all animals classified as normal at rest and inspect a portion of them in motion. A federal public-health veterinarian examines animals in the Subject and U.S. Suspect pens and decides whether they should be condemned, slaughtered, or slaughtered separately. The court concluded that the plant employees’ sorting did not replace the required federal inspection.

The court also held that Section 603(a) did not require federal inspectors to observe every animal both at rest and in motion. The statute required inspection of all swine, and the new system allowed inspectors to examine a larger percentage in motion when they considered that necessary.

The court rejected plaintiffs’ challenges under Section 604, which requires federal post-mortem inspection of carcasses and parts. The court held that the statute did not specifically require federal inspectors to incise and palpate every lymph node. Visual inspection by federal inspectors of every head, viscera, and carcass satisfied the statute. The court also found that plant employees’ sorting and trimming did not prevent federal inspectors from inspecting each carcass and part, because federal officials supervised the process and public-health veterinarians examined suspect or retained carcasses and parts.

The court further held that Section 604 did not impose a specific inspection speed limit. Although the rule reduced the number of online inspectors and allowed faster line speeds, the agency relied on the HIMP pilot program and authorized public-health veterinarians to regulate line speeds when necessary to ensure adequate inspection.

Administrative Procedure Act

The court concluded that the agency adequately explained its departure from the traditional inspection system. The final rule acknowledged that it created a new, optional inspection system, explained its features, and gave reasons including improving inspection effectiveness, making better use of agency resources, and allowing industry innovation. The court found that the new system was permissible under the Federal Meat Inspection Act and that the agency had explained why it believed the system would provide public-health protection at least equivalent to the existing system.

The court rejected plaintiffs’ challenges to the HIMP report’s sample size and data. Although the report evaluated five large, high-volume establishments and did not include small high-volume establishments, the court found that plaintiffs had not shown the agency acted arbitrarily and capriciously by relying on the five establishments. The court also found that plaintiffs had not shown that the report’s seven-year data period or its use of performance-standard data from later years made the agency’s reliance unreasonable.

The court considered Food & Water Watch’s analysis of data from 2014 through 2017 but concluded that the agency’s failure to separately address that submission did not make the rule arbitrary and capricious. The court found that the agency had addressed the core issue in an earlier response concerning inspection-verification data and had explained why it relied on the 2006-through-2013 data.

The court also rejected challenges to the agency’s adjustments to food-safety violation rates, evidence concerning plant-employee performance, and the risk assessment. Although the agency should have disclosed one assumption in the specific table at issue, the court could understand the agency’s reasoning from disclosures elsewhere in the report. The court found that the agency had considered peer reviewers’ concerns and that the failure to allow comments on the revised risk assessment did not make the rule arbitrary and capricious because the final rule’s conclusion about the expected reduction in illness remained unchanged.

Finally, the court rejected plaintiffs’ arguments that the rule undermined the Federal Meat Inspection Act’s purpose or impermissibly delegated inspection duties to plant employees. The court concluded that federal inspectors continued to perform the duties required by the statute.

Disposition

The court DENIED Plaintiffs’ motion for summary judgment and GRANTED Defendants’ cross-motion for summary judgment. It ordered that a separate judgment issue and directed the clerk to close the file.