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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`CENTER FOR FOOD SAFETY, et al.,
`Plaintiffs,
`
`v.
`
`SONNY PERDUE, et al.,
`Defendants.
`
`Case No. 20-cv-00256-JSW
`
`
`ORDER DENYING MOTION TO
`DISMISS
`Re: Dkt. No. 28
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`Now before the Court for consideration is the motion to dismiss filed by Defendants Sonny
`Perdue, in his official capacity as the Secretary of the U.S. Department of Agriculture, Mindy
`Brashears in her official capacity as the Deputy Under Secretary for Food Safety, the Food Safety
`and Inspection Services (“FSIS”), and the U.S. Department of Agriculture (“USDA”)
`(collectively, “Defendants”). The Court has considered the parties’ papers, relevant legal
`authority, and the record in this case, and it finds the motion suitable for disposition without oral
`argument. See N.D. Civ. L.R. 7-1(b). The Court HEREBY DENIES Defendants’ motion.
`BACKGROUND
`Plaintiffs Center for Food Safety (“CFS”), Food & Water Watch, Inc. (“FWW”), and the
`
`Humane Farming Association (“HFA”), as well as an individual Robin Mangini (collectively,
`“Plaintiffs”) bring this action challenging the implementation of the Modernization of Swine
`Slaughter Inspection, 85 Fed. Reg. 52, 300 (Oct. 11, 2019), promulgated by the FSIS of the
`USDA, which became effective on December 2, 2019 (“Final Rule”).
`CFS is an environmental advocacy organization working to protect human health and the
`environment by curbing the use of harmful food production technologies and by promoting
`organic and other forms of sustainable agriculture. (FAC ¶ 8.) FWW is a consumer advocacy
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`United States District Court
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`organization working to ensure safe food and clean water. (Id. ¶ 9.) HFA is an animal protection
`and consumer advocacy organization working to advance the welfare of farm animals and protect
`the health of Americans consuming animal products. (Id. ¶ 10.) Plaintiff Robin Mangini is a
`member of CFS and FWW and a regular consumer of pork. (Id. ¶ 12.)
`Plaintiffs allege that the Final Rule, which implements the New Swine Inspection System
`(“NSIS”), eliminates important aspects of the inspection process in violation of the Administrative
`Procedure Act (“APA”) and the Federal Meat Inspection Act, 21 U.S.C. section 601, et seq.
`(“FMIA”). (Id. ¶ 1.) Congress passed the FMIA to ensure that meat and meat food products
`distributed to consumers are wholesome, not adulterated, and properly marked, labeled, and
`packaged. (Id. ¶ 19.) To achieve this goal, Congress authorized the Secretary of Agriculture to
`issue regulations aimed at protecting consumers from unwholesome and adulterated meat food
`products. (Id.) Regulations under the FMIA establish a scheme requiring federal government
`inspection of animals, including swine, before they are slaughtered and inspection of carcasses
`after slaughter. (Id. ¶ 20.)
`
`Plaintiffs allege that the Final Rule’s adoption of the NSIS marks a “radical
`transformation” of the federal government’s inspection of swine and swine carcasses. (Id. ¶ 21.)
`The prior inspection scheme required federal government inspectors to inspect swine before
`slaughter, tagging and separating animals indicating signs of disease from other animals. (Id. ¶¶
`21, 28-48.) After slaughter, federal inspectors appraised the carcass of each animal, condemned
`animals found to be adulterated, and supervised the disposal of the condemned animals to ensure
`they did not enter the food supply. (Id. ¶¶ 21, 49-79.)
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`Plaintiffs allege that the NSIS permits plant employees to conduct the pre- and post-
`slaughter inspections instead of federal inspectors. (Id. ¶¶ 22-23.) Plaintiffs allege that under the
`Final Rule, plant employees are not required to receive inspection training, which will increase the
`amount of adulterated or contaminated swine products entering the food market and will increase
`the risk of foodborne illness and increased prices. (Id. ¶ 23.) Plaintiffs also allege that the NSIS
`calls for increased line speeds, which will diminish the ability of inspectors to identify potentially
`diseased or adulterated carcasses. (Id. ¶ 62.) Plaintiffs allege that the Final Rule revokes E. coli
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`and salmonella testing standards and gives establishments the ability to determine microbiological
`sampling plans independently. (Id. ¶¶ 85, 181-183.) It is anticipated that plants producing ninety-
`three percent of the slaughtered swine in the United States will adopt the NSIS within five years.
`84 Fed. Reg. 52, 322.
`
`Plaintiffs allege that their interests, organizationally and through their members, are being
`and will be adversely affected by the implementation of the Final Rule. (FAC ¶ 322.) Plaintiffs
`allege that the NSIS puts the health and safety of their members in jeopardy by increasing the risk
`of contracting foodborne illness. (Id.) Plaintiffs allege that although their members would like to
`continue consuming pork, they will be unable to avoid pork produced in plants that have adopted
`the NSIS procedures outlined in the Final Rule. (Id.) Plaintiffs seek declaratory and injunctive
`relief.
`
`The Court will address additional facts as necessary in the analysis.
`ANALYSIS
`
`A.
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`Applicable Legal Standard.
`Standing is a “threshold question in every federal case, determining the power of the court
`to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Article III of the Constitution
`requires that a plaintiff have standing to assert claims in federal court. Lujan v. Defenders of
`Wildlife, 504 U.S. 555, 560 (1992). Challenges to Article III standing implicate a court’s subject
`matter jurisdiction and therefore are properly raised under Federal Rule of Civil Procedure
`12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Federal courts are courts of limited
`jurisdiction,” and “[i]t is to be presumed that a cause lies outside this limited jurisdiction” unless
`otherwise shown. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
`Where a defendant challenges plaintiff’s standing based on the allegations in the
`complaint, the challenge is known as a facial challenge. Wolfe v. Strankman, 392 F.3d 358, 362
`(9th Cir. 2004) (citations omitted).
`
`B.
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`Plaintiffs Sufficiently Allege Associational Standing.
`Defendants move to dismiss the claims of individual Plaintiff Robin Mangini and the
`organizational Plaintiffs on behalf of their members for lack of Article III standing. To establish
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`standing, a plaintiff must show it “(1) suffered injury in fact, (2) that is fairly traceable to the
`challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
`decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of
`Wildlife, 504 U.S. 555, 561 (1992)). Under the doctrine of associational standing, an association
`has standing to sue on behalf of its members when: “(1) its members would otherwise have
`standing to sue in their own right; (2) the interests it seeks to protect are germane to the
`organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the
`participation of individual members in the lawsuit.” Regents of Univ. of Cal. v. U.S. Dep’t of
`Homeland Security, 279 F. Supp. 3d 1011, 1034 (N.D. Cal. 2018).
`The parties disagree about the standard that should be applied to analyze standing in an
`increased risk of harm situation such as this. Defendants argue that the “certainly impending”
`standard set forth in Clapper v. Amnesty International USA, 568 U.S. 398 (2013) applies.
`Plaintiffs, however, argue that allegations establishing a credible threat of future harm suffices to
`establish standing in this case.
`In Clapper, the Supreme Court addressed whether plaintiffs had standing based on the risk
`that surveillance procedures authorized by the Foreign Intelligence Surveillance Act would cause
`them future harm. The plaintiffs were “attorneys and human rights, labor, legal, and media
`organizations whose work allegedly require[d] them to engage in sensitive and sometimes
`privileged telephone and e-mail communications with ... individuals located abroad,” and they
`sued to invalidate a portion of the act because there was “an objectively reasonable likelihood that
`their communications [would] be acquired […] at some point in the future.” Id. at 401. The
`Supreme Court held that the plaintiffs’ injury was too speculative to be “certainly impending”
`because no interceptions had yet occurred and because the alleged injury rested on a series of
`inferences. Id. at 410-11. Defendants argue that Plaintiffs’ injury here, like in Clapper, rests on a
`series of inferences that render it too speculative to establish Article III standing.
`In support of their argument, Defendants rely heavily on Food & Water Watch, Inc. v.
`Vilsack, 808 F.3d 905 (D.C. Cir. 2015), which addressed a rule making similar changes to the
`poultry inspection process. In that case, the D.C. Circuit found that to satisfy Article III’s standing
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`requirements, the plaintiffs had to demonstrate that the final rule at issue substantially increased
`the risk of contracting foodborne illness, which required the plaintiffs to allege both a substantially
`increased risk of harm and a substantial probability of harm with that increase taken into account.
`808 F.3d at 914.
`The Court is not persuaded that the approach applied by the D.C. Circuit and advocated by
`Defendants here is widely used in the Ninth Circuit in cases like this one. Although Defendants
`point to several Ninth Circuit decisions post-Clapper that applying the “certainly impending” and
`“substantial risk” standard, none expressly applies the two-prong approach taken in Food & Water
`Watch II. Moreover, Defendants’ cited Ninth Circuit cases are factually distinguishable from the
`present case. For example, in Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015), the Ninth Circuit
`determined that the plaintiff lacked standing to challenge a State Department policy where the
`policy was no longer in effect and the plaintiff no longer worked as a security contactor. Id. at
`409. The alleged injury would have occurred only if the plaintiff were rehired, sent to Iraq to
`perform security services, the State Department reinstated the policy, and it did so in a way that
`created a “lawless atmosphere” leading to the plaintiff’s kidnapping. Munns, 782 F.3d at 409-10.
`Here, the chain of occurrences leading to Plaintiffs’ alleged future injury is far less speculative
`than the future harms alleged in Munns.1
`Moreover, the Ninth Circuit has held that the credible threat standard is not clearly
`irreconcilable with Clapper and that a credible threat of harm is sufficient to constitute actual or
`imminent injury for standing purposes.2 In In re Zappos.com, Inc., 888 F.3d 1020 (9th Cir. 2010),
`
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`The same is true of Defendants’ other cited authorities. See, e.g., Prescription Drug
`1
`Monitoring Program v. U.S. Drug Enf't Admin., 860 F.3d 1228, 1235 (9th Cir. 2017) (finding
`injury was speculative under Clapper where intervenors challenged two DEA administrative
`subpoenas related to a prescription, but the subpoenas did not include records related to any of the
`intervenors, and the intervenors presented no evidence that the DEA would seek records related to
`them); Montana Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1189 (9th Cir. 2014) (finding
`no “substantial risk” of harm to organization’s members where alleged injury would occur only if
`a certain application was approved and finding plaintiffs had failed to allege a “substantial risk”
`that the application would be approved).
`2
`The Court acknowledges that one court in this district has held that Clapper’s “certainly
`impending” and “substantial risk” abrogated the “credible threat” standard. See Backus v. General
`Mills, Inc., 122 F. Supp. 909, 922 (N.D. Cal. 2015). However, the Court declines to follow that
`approach in light of the Ninth Circuit’s continued application of the credible threat standard since
`Clapper.
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`a data breach case, the Ninth Circuit applied the credible threat standard in analyzing standing
`based on the risk of future harm and concluded that the plaintiffs had alleged a credible threat of
`real and immediate harm sufficient to establish standing where hackers had stolen their personal
`information from the defendant's servers, thereby exposing the plaintiffs to an increased risk of
`identity theft. 888 F.3d at 1025-1027 (citing Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir.
`2010). In distinguishing Clapper, the court noted that Clapper’s standing analysis was “especially
`rigorous” due to the “sensitive national security context” and because the Supreme Court was
`being asked to “declare actions of the executive and legislative branches unconstitutional.” In re
`Zappos.com, Inc., 888 F.3d at 1026.
`The credible threat standard continues to be applied within the Ninth Circuit particularly in
`cases involving threatened environmental harm. See, e.g., Nat'l Family Farm Coal. v. U.S. Envtl.
`Prot. Agency, 966 F.3d 893, 909 (9th Cir. 2020) (finding that “a credible threat of harm is
`sufficient to constitute actual injury for standing purposes”) (citing Cent. Delta Water Agency v.
`United States, 306 F.3d 938, 950 (9th Cir. 2002); San Luis & Delta-Mendota Water Auth. v.
`Jewell, 747 F.3d 581, 645 n.49 (9th Cir. 2014) (“[A] credible threat of harm is sufficient to
`constitute actual injury for standing purposes, whether or not a statutory violation has occurred.”);
`see also Peckerar v. Gen. Motors, LLC, No. EDCV182153DMGSPX, 2020 WL 6115083, at *4
`(C.D. Cal. Aug. 17, 2020) (citing NRDC v. EPA, 735 F.3d 873, 878 (9th Cir. 2013)) (“The Ninth
`Circuit has consistently held that standing exists “where there is a ‘credible threat’ that a
`probabilistic harm will materialize.”). This is because “[t]he ability to challenge actions creating
`threatened environmental harms is particularly important because in contrast to many other types
`of harms, monetary compensation may well not adequately return plaintiffs to their original
`position,” given that “[t]he extinction of a species, the destruction of a wilderness habitat, or the
`fouling of air and water are harms that are frequently difficult or impossible to remedy.” Cent.
`Delta Water Agency, 306 F.3d at 950.
`This reasoning also applies to food safety cases such as this one. For example, in Levine v.
`Johans, No. C 05-04764 MHP, 2006 WL 8441742 (N.D. Cal. Sept. 6, 2006), the plaintiffs were
`members of the Humane Society of the United States and the East Bay Animal Advocates who
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`filed an action seeking declaratory and injunctive relief from allegedly unlawful USDA policies
`concerning the slaughter of exotic animals. 2006 WL 8441742, at *2. The plaintiffs argued that a
`new USDA policy regarding the slaughter of poultry increased their risk of becoming ill each time
`they ate poultry. Id. The Levine court found the plaintiffs’ alleged injury—the risk of contracting
`foodborne illness from meat products—was concrete and imminent enough to satisfy Article III’s
`requirements. Id. at *5. In food and drug safety cases, the court explained, “exposure to increased
`risk of harm establishes standing if the threat is ‘credible.’” Id. at *6 (citing Baur v. Veneman, 352
`F.3d 625 (2d. Cir. 2003)). “Exposure to risk, not the actual onset of disease, must be imminent.”
`Id. This is because “[l]ike threatened environmental harm, the potential harm from exposure to
`dangerous food products or drugs is by nature probabilistic, yet an unreasonable exposure to risk
`may itself cause cognizable injury.” Baur, 352 F.3d at 634 (internal citation and quotations
`omitted). Accordingly, the Court concludes that Plaintiffs can establish standing in this case if
`they “allege an increased risk of concrete injury that results from a series of credible occurrences.”
`Levine, 2006 WL 8441742, at *7.
`Here, Plaintiffs allege that the new NSIS procedures outlined in the Final Rule erode
`several important features of the traditional inspection process increasing the likelihood that
`adulterated pork products will enter the food supply and thus putting their members at risk of
`illness from consuming adulterated pork. Plaintiffs allege that under the Final Rule,
`responsibilities for ante-mortem and post-mortem inspections will fall to plant employees who are
`not required to receive specific training or certification related to inspections. Additionally, the
`Final Rule allows for line speeds at plants to increase, which will decrease the amount of time
`each inspector can devote to examining a carcass for potential disease. According to Plaintiffs, the
`data provided by Defendants shows that the NSIS plants tagged twenty-five to thirty-percent fewer
`animals than plants using the traditional inspection process. Plaintiffs also point to provisions of
`the Final Rule that rescind current testing requirements for E. coli and salmonella. Moreover,
`because approximately forty plants producing roughly ninety-three percent of the domestic pork
`supply will adopt the new NSIS rules, Plaintiffs allege that their members, who desire to continue
`to consume pork, will be unable to avoid pork from NSIS plants given the number of plants likely
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`to adopt the procedures and absence of consumer-facing labeling and disclosures regarding the
`location of the swine slaughter. (Id. ¶ 323; see also Dkt. No. 29-5, Declaration of Robin Mangini
`¶¶ 4, 9-13.) Defendants argue that this theory is too speculative because the number of plants
`adopting NSIS is not certain; however, by Defendants’ own estimate, NSIS plants will account for
`seventy-eight percent of the total pork slaughter nationwide, which is still a significant amount.
`(See Reply at 7.)
`Accordingly, accepting Plaintiffs’ allegations as true, the Court concludes there is a
`credible threat that Plaintiffs’ members face an increased risk of illness from consuming
`adulterated pork products because of the Final Rule, sufficiently establishing standing based on
`potential future harm.3
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`C.
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`Plaintiffs Sufficiently Allege Organizational Standing.
`To allege organizational standing under Article III, plaintiffs must demonstrate: “(1)
`frustration of its organizational mission; and (2) diversion of its resources to combat” defendant’s
`alleged wrongful conduct. See Smith v. Pacific Properties & Dev. Corp., 358 F.3d 1097, 1105
`(9th Cir. 2004) (citing Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). A
`frustration of mission injury in fact occurs “where a defendant’s conduct has ‘perceptibly
`impaired’ an organizational plaintiff’s ‘ability to provide [services to its clients]…’” Project
`Sentinel v. Evergreen Ridge Apartments, 40 F. Supp. 2d 1136, 1138 (N.D. Cal. 1999) (quoting
`Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)).
`“[A] diversion-of-resources injury is sufficient to establish organizational standing at the pleading
`stage, even when it is broadly alleged.” Nat'l Council of La Raza v. Cegavske, 800 F.3d 1032,
`1040 (9th Cir. 2015). In brief, plaintiffs must allege “a concrete and demonstrable injury to its
`activities, not simply a setback to the organization’s abstract social interests.” Project Sentinel, 40
`F. Supp. 2d at 1138.
`Here, Plaintiffs allege that the Final Rule has frustrated the organizations’ food-safety
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`Because the Court finds that Plaintiffs’ allegations regarding the increased risk of illness
`3
`sufficient to establish standing, it will not address the allegations and arguments related to injury
`stemming from increased pork prices.
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`missions and forced them to divert organizational resources to address the promulgation of the
`Final Rule. Plaintiffs allege that the Final Rule has forced them to take action on behalf of their
`members and consumers that would not be required but for Defendants’ alleged violation of the
`FMIA and APA. FWW has created a webpage to help the public determine which products come
`from which slaughter plants and has submitted FOIA requests in an effort to discover the plants
`that will switch over to the NSIS. CFS has shifted staff time from other efforts to focus on
`educating members about the Final Rule. Accordingly, the organizations have sufficiently alleged
`that they have altered their resource allocation to combat the Final Rule. See Nat’l Council of La
`Raza, 800 F.3d at 1039 (organizational standing established where civil rights groups “expend[ed]
`additional resources” that “they would have spent on some other aspect of their organizational
`purpose”); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (finding
`organizational standing where the plaintiffs “had to divert resources to educational programs to
`address its members’ and volunteers’ concerns about the [challenged] law’s effect”); Fair Hous.
`Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir.
`2012) (finding organizational standing where the plaintiff, in response to the defendant's
`challenged practices, “started new education and outreach campaigns targeted at discriminatory
`roommate advertising”). The Court finds these allegations sufficient to support the Plaintiff
`organizations’ standing at this stage.
`
`CONCLUSION
`For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss. The parties
`shall appear for a case management conference on April 16, 2021 at 11:00 a.m. The parties shall
`submit a joint case management statement by no later April 9, 2021.
`IT IS SO ORDERED.
`Dated: February 4, 2021
`
`______________________________________
`JEFFREY S. WHITE
`United States District Judge
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`Northern District of California
`United States District Court
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