Should poultry inspectors for the U.S. Department of Agriculture be able to challenge a new federal rule that makes big changes in efforts to protect consumers from disease? One inspector and his union sued the agency, but a federal court in D.C. found the suit wouldn’t fly.

Despite finding that the union showed an injury-in-fact based on the possibility of foodborne illness, the court said it didn’t have enough evidence that the rule will actually cause more bad birds to go to market. American Federation of Government Employees v. Vilsack 203 LRRM 3654, 2015 BL 246085 (D.D.C. 2015). The case shows how hard it is for government employees and unions to establish standing in suits over rules that regulate third parties.

An adulterated chicken walks into commerce…

The suit, brought by a poultry inspector and the American Federation of Government Employees against the Secretary of Agriculture, alleged that the agency’s new National Poultry Inspection System makes big and maybe bad changes to the way federal inspectors do their jobs at slaughter houses.

The union said the new rule means there will be fewer federal inspectors posted on slaughter lines, faster line speeds and more involvement by employees of the slaughter houses in the federal inspection process.

Fox guarding the hen house?

According to the court, the new rule changes the “traditional” poultry inspection process by permitting employees of slaughter houses to do the preliminary screening of slaughtered birds, and it allows those employees to remove adulterated carcasses from the slaughter line without all the fuss of having a federal inspector take a look.

Birds that are presented to a federal inspector will also get only a visual inspection, not the more thorough “organoleptic” inspection that was required before.

And why waste all that time looking at dead chickens? Pretty depressing, right? With modernization, inspection can happen more quickly, and fewer federal inspectors will be needed along slaughter lines too!

Sitting ducks?

Sensing their jobs might be at stake, plaintiffs filed suit. According to the union, the new rule effectively “prevents the inspection by inspectors” of slaughtered birds and eliminates inspectors’ supervision of the “reprocessing” of bad birds. The plaintiffs argued that the rule thus increases the risk that the union’s members will get sick after eating poultry or poultry products.

The union asked the court to prevent the rule from going into effect to the extent that it permits anything less than inspection of every slaughtered bird and all its parts. The union also wanted the court to stop the agency from permitting anybody other than a government inspector to do the inspections required by the federal Poultry Products Inspection Act.

Court pecks away at complaint

Looking to the first element of the test for constitutional standing, the court found that the union showed an injury-in-fact because its argument about foodborne illness was at least plausible.

When it came to whether the new rule would clearly cause that injury and whether something could be done about it, the complaint ruffled the court’s feathers. Because the case involved regulation of third parties, the court found that plaintiffs had to show “formidable evidence” making “causation so clear that redressability inexorably follows.”

Not such a rare bird

The court noted that the plaintiffs offered affidavits stating that they eat poultry and that the federal inspection of carcasses is vital to the health and welfare of poultry consumers.

But this just wasn’t enough. The court said the union didn’t show that the increase in the maximum slaughter line speed will make it too difficult for federal inspectors to conduct adequate visual inspections. Nor did the union show that reducing the number of inspectors will make it more likely that bad stuff ends up in their bucket of wings. The union didn’t even present evidence to convince the court that employees of the slaughter houses are worse than federal meat inspectors at inspecting meat.

The plaintiffs, the court found, provided no concrete evidence that the new rule will actually cause more adulterated poultry to be released into the marketplace than would otherwise happen. It remains for the agency to see whether and when the chickens come home to roost.

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