Food & Water Watch, Inc. v. Thomas Vilsack

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2015 Decided December 22, 2015
No. 15-5037
FOOD & WATER WATCH, INC., ET AL.,
APPELLANTS
v.
THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS THE U.S.
SECRETARY OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01547)
Zachary B. Corrigan argued the cause and filed the briefs
for appellants.
Daniel Tenny, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Vincent H. Cohen Jr., Acting U.S. Attorney, and
Mark B. Stern, Attorney. Adam C. Jed, Attorney, entered an
appearance.
Before: HENDERSON, MILLETT and WILKINS, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge WILKINS.
Opinion concurring in the judgment filed by Circuit
Judge HENDERSON.
Concurring opinion filed by Circuit Judge MILLETT.
WILKINS, Circuit Judge: Margaret Sowerwine and Jane
Foran, individual consumers of poultry, and Food & Water
Watch, Inc. (“FWW”), their organizational advocate, fear that
new regulations promulgated by the United States Department
of Agriculture (“USDA”) may result in an increase in
foodborne illness from contaminated poultry. To prevent the
regulations from going into effect, Plaintiffs sought
declaratory and injunctive relief. The District Court
concluded that Plaintiffs failed to demonstrate an injury in
fact and dismissed Plaintiffs’ claims for lack of standing.
On appeal, Plaintiffs argue that the District Court applied
an incorrect standard in finding that they lacked standing.
According to Plaintiffs, once the appropriate standard is
applied, their complaint and evidence show: (1) the Individual
Plaintiffs, Margaret Sowerwine and Jane Foran, and FWW
members have shown an increase in the risk of harm
sufficient to establish an injury in fact; (2) FWW has shown
an injury to its interest and expenditures made in response to
that injury sufficient to establish an injury in fact; and (3)
Plaintiffs have suffered a procedural injury sufficient to
establish an injury in fact for purposes of standing. Although
the District Court applied the incorrect standard to evaluate
Plaintiffs’ standing, the District Court nonetheless correctly
ruled that Plaintiffs have not alleged a sufficient injury to
establish standing under the appropriate standard.
Accordingly, we affirm.
3
I.
The Poultry Products Inspection Act (“PPIA”), 21 U.S.C.
§§ 451-472, was born out of a Congressional interest in
protecting consumer health and welfare by enabling the
Secretary of Agriculture (“Secretary”) to ensure that poultry
products were “wholesome, not adulterated, and properly
marked, labeled, and packaged.” 21 U.S.C. § 451. The PPIA
accomplishes this goal, in part, by requiring the Secretary to
ensure that inspectors 1 conduct a post-mortem inspection of
all poultry processed for human consumption. Id. § 455(b).
The PPIA also requires condemnation and destruction for
human food purposes of all poultry that is found to be
adulterated, unless the poultry can be reprocessed under an
inspector’s supervision so that it is found to be not
adulterated. Id. § 455(c). The PPIA defines “adulterated” to
include various conditions, including containing, among other
things, “any poisonous or deleterious substance which may
render it injurious to health”; various additives that are unfit
for human consumption; consisting in whole or in part of any
“filthy, putrid, or decomposed substance or is for any other
reason unsound, unhealthful, unwholesome, or otherwise unfit
for human food”; or packaging in conditions where it “may
have been rendered injurious to health.” Id. § 453(g).
Carcasses that pass inspection receive an official legend
indicating that it was inspected by the USDA. Id.
§ 453(h)(12); 9 C.F.R. § 381.96.
1
The PPIA defines an inspector as “(1) an employee or official of
the United States Government authorized by the Secretary to
inspect poultry and poultry products under the authority of this
chapter, or (2) any employee or official of the government of any
State or territory or the District of Columbia authorized by the
Secretary to inspect poultry and poultry products under authority of
this chapter.” 21 U.S.C. § 453(k).
4
The Food Safety and Inspection Service (“FSIS”)
administers the PPIA. See 7 C.F.R. §§ 2.18(a)(1)(ii)(A),
2.53(a)(2)(i). Historically, FSIS has permitted chicken and
turkey – the poultry products of concern to Plaintiffs – to be
inspected under one of four inspection systems: the
Streamlined Inspection System, the New Line Speed
Inspection System, the New Turkey Inspection System, and
traditional inspection (collectively, “the existing inspection
systems”). Modernization of Poultry Slaughter Inspection, 77
Fed. Reg. 4408, 4410 (proposed Jan. 27, 2012). Under the
existing inspection systems, FSIS inspectors perform either an
online or offline role. See id. Offline inspectors ensure
compliance with food safety regulations, verify sanitation
procedures, and collect samples for pathogen testing. See id.One or more online FSIS inspectors inspect each poultry
carcass with its viscera 2 immediately following the separation
of the viscera from the carcass. See id. Under the existing
inspection systems, the inspectors conduct an “organoleptic”
inspection, using sight, touch, and smell to evaluate the
carcasses. See Brief for Appellees, Food & Water Watch, Inc.
v. Vilsack, No. 15-5037 (D.C. Cir.), Doc. No. 1553589, at 3;
see also 77 Fed. Reg. at 4410 (noting that inspectors
“examine each eviscerated carcass for visual defects”).
Poultry establishment personnel do not conduct any sorting or
evaluation of carcasses; the poultry establishments provide a
“helper” who takes action only upon an FSIS inspector’s
direction. 77 Fed. Reg. at 4410.
2
Viscera are “[t]he soft contents of the principal cavities of the
body” which includes “the entrails or bowels together with the
heart, liver, lungs, etc.” OXFORD ENGLISH DICTIONARY (3d ed.
2007).
5
The inspection method at issue in this case, the New
Poultry Inspection System (“NPIS”), alters the responsibilities
of the FSIS inspectors and the establishment personnel. The
NPIS rules institutionalize the shift from inspector-based
sorting and evaluation to establishment-based sorting and
evaluation. Under the NPIS, poultry establishment personnel
sort the poultry carcasses and take corrective action prior to
an FSIS inspection. See id. at 4421.
The NPIS grew out of FSIS’s concern that agency
resources were not being used in the most effective way to
ensure food safety. See id. at 4410. In an effort to develop
new methods to more effectively inspect poultry, in 1996
FSIS promulgated the “Pathogen Reduction/Hazard Analysis
and Critical Control Points” (“HACCP”) rule. Id. at 4413;
Pathogen Reduction; Hazard Analysis and Critical Control
Points, 61 Fed. Reg. 38806 (July 25, 1996). HACCP required
poultry establishments to develop controls to ensure product
safety and empowered the establishments to make their own
determinations about how to meet the FSIS regulatory
requirements. 77 Fed. Reg. at 4413. FSIS subsequently
announced an HACCP-based inspection models project
(“HIMP”) that would allow FSIS to test and develop new
inspection models. HACCP-Based Meat and Poultry
Inspection Concepts, 62 Fed. Reg. 31553 (June 10, 1997).
The pilot HIMP method made poultry establishment
personnel “responsible for identifying and removing normal
from abnormal carcasses and parts.” 77 Fed. Reg. at 4413.
The HIMP pilot was challenged as a violation of the
PPIA because FSIS inspectors did not inspect poultry
carcasses themselves, leaving all inspection to establishment
personnel with FSIS oversight. Am. Fed’n of Gov’t Empls.,
AFL-CIO v. Glickman (AFGE I), 215 F.3d 7, 9-10 (D.C. Cir.
2000). This Court held that such delegation violated the
6
PPIA. Id. at 11. In response to AFGE I, “FSIS modified
HIMP to position one inspector at a fixed location near the
end of the slaughter line in each poultry slaughter
establishment” who was responsible for evaluating each
carcass after establishment personnel had sorted and
processed it. 77 Fed. Reg. at 4413. The modified HIMP
program was also challenged, and this Court held that the
program did not violate the PPIA. Am. Fed’n of Gov’t
Empls., AFL-CIO v. Veneman, 284 F.3d 125, 130-31 (D.C.
Cir. 2002). However, we cautioned that “[i]f the USDA
undertakes a rulemaking to adopt as a permanent change
something along the lines of the modified program,
experience with the program’s operation and its effectiveness
will doubtless play a significant role” and warned that our
opinion “may not necessarily foreshadow the outcome of
judicial review of such future regulations.” Id. at 130-31.
Twenty young chicken and five turkey establishments
participated in HIMP, and FSIS collected and analyzed the
data from these establishments. 77 Fed. Reg. at 4414. Using
this data, FSIS concluded that the HIMP procedures
“improved performance related to food safety and non-food-
safety standards . . . especially in reducing pathogen levels”
and proposed the NPIS to replace the existing inspection
systems, excluding the traditional inspection system. Id. at
4421. Under the proposed NPIS rule, “establishments
[would] be required to sort carcasses, to dispose of carcasses
that must be condemned, and to conduct any necessary
trimming or reprocessing activities before carcasses are
presented to the online FSIS carcass inspector.” Id. The
carcasses would pass along a production line for the online
inspector at a speed of 175 birds per minute for young
chickens, and 55 birds per minute for turkeys. Id. at 4423.
While establishment personnel sort carcasses, FSIS inspectors
would reallocate their time by increasing offline inspection
7
activities. Id. at 4420, 4422. FSIS projected that 99.9% of
young chickens and poultry would be produced under the
NPIS. Id. at 4436. After a notice and comment period, FSIS
adopted a final NPIS rule with a number of modifications,
which included making adoption of the NPIS optional, and
lowering the birds per minute speed of young chickens to 140
birds per minute. Modernization of Poultry Slaughter
Inspection, 79 Fed. Reg. 49566, 49570 (Aug. 21, 2014).
On September 11, 2014, Plaintiffs filed their complaint in
this case, claiming that the NPIS constitutes “an
unprecedented elimination of inspection resources for a secret
set of young chicken and turkey slaughterhouses.” Compl.
¶ 1, J.A. 9. In this spirit, Plaintiffs alleged eight claims
against Defendants: (1) violation of 21 U.S.C. § 455(c) by
allowing condemnation of young chicken and turkey
carcasses by NPIS establishment personnel; (2) violation of
21 U.S.C. § 455(c) by allowing reprocessing of young
chickens and turkeys by NPIS establishment personnel
without inspector supervision; (3) violation of 21 U.S.C.
§ 455(b) because each young chicken and turkey carcass will
not receive a post-mortem inspection in NPIS establishments;
(4) violation of the PPIA’s branding requirements; (5)
violation of 21 U.S.C. § 455(b) and 9 C.F.R. § 381.1 because
each chicken and turkey viscera will not be federally
inspected; (6) violation of 21 U.S.C. § 463(c) for failure to
provide an opportunity for oral presentation of views; (7)
violation of the Administrative Procedure Act (“APA”) by
failing to provide adequate opportunity for notice and
comment; and (8) violation of the APA because the final
NPIS rules are arbitrary and capricious. Plaintiffs sought
declaratory and injunctive relief. On the same day they filed
the complaint, Plaintiffs moved for a preliminary injunction
on Claims 1, 2, 6, and 7. The District Court heard the motion
on October 17, 2014.
8
On February 9, 2015, the District Court dismissed the
case for lack of subject matter jurisdiction because Plaintiffs
lacked standing, and denied the motion for preliminary
injunction and all other pending motions as moot. Food &
Water Watch, Inc. v. Vilsack, 79 F. Supp. 3d 174, 206 (D.D.C.
2015). With respect to the Individual Plaintiffs, the District
Court found that they did not suffer an injury in fact in order
to establish standing. Id. at 190-95. The District Court also
found that FWW lacked standing as an organization, and that
Plaintiffs did not suffer a procedural injury sufficient to
establish standing. 3 Id. at 199-206. Plaintiffs appeal the
dismissal on these grounds.
II.
Before considering the merits of Plaintiffs’ standing
arguments, we must first determine the appropriate standard
under which we should evaluate Plaintiffs’ claims. Because
Plaintiffs moved for a preliminary injunction, the District
Court evaluated Plaintiffs’ standing to bring their claims
under the heightened standard for evaluating a motion for
summary judgment. See Food & Water Watch, 79 F. Supp.
3d at 186 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
907 n.8 (1990) (Blackmun, J., dissenting)). This approach
was correct for determining whether or not to grant the
motion for preliminary injunction, but it was incorrect for
determining whether to dismiss the case in its entirety.
3
The District Court also held that the Individual Plaintiffs and
FWW lacked informational standing, but Plaintiffs do not appeal
those rulings. See Food & Water Watch, 79 F. Supp. 3d at 196-99,
203-04.
9
It is well-established that “each element of Article III
standing ‘must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the
successive stages of the litigation.” Bennett v. Spear, 520
U.S. 154, 167-68 (1997) (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)). In order to obtain a preliminary
injunction, a party must show, among other things, “a
substantial likelihood of success on the merits.” Mills v.
District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009)
(internal quotation marks omitted). “In this context, the
‘merits’ on which plaintiff must show a likelihood of success
encompass not only substantive theories but also
establishment of jurisdiction.” Obama v. Klayman, 800 F.3d
559, 565 (D.C. Cir. 2015) (Williams, J.). In order to establish
jurisdiction, a plaintiff must establish standing. See, e.g.,
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342
(2014) (“The party invoking federal jurisdiction bears the
burden of establishing standing.” (citation and internal
quotation marks omitted)). Accordingly, a party who seeks a
preliminary injunction “must show a ‘substantial likelihood’
of standing.” Klayman, 800 F.3d at 568 (Williams, J.). A
party who fails to show a “substantial likelihood” of standing
is not entitled to a preliminary injunction. Id.
However, an inability to establish a substantial likelihood
of standing requires denial of the motion for preliminary
injunction, not dismissal of the case. See id. at 562 (Brown,
J.); id. at 568 (Williams, J.). Whether a party’s claim requires
dismissal because of an inability to establish standing depends
on the stage of the litigation. Bennett, 520 U.S. at 167-68.
Here, Plaintiffs filed their complaint and moved for a
preliminary injunction contemporaneously. When the District
Court dismissed the case, Defendants had not yet filed an
answer, and no discovery had occurred. Accordingly, the
10
litigation had not proceeded past the pleadings stage, and
standing – for evaluating the propriety of proceeding with the
case at all – should have been evaluated under the motion to
dismiss standard. Id. Because what we have before us is the
dismissal of Plaintiffs’ complaint, we must evaluate whether
they have established standing under the standard applicable
pursuant to Federal Rule of Civil Procedure 12(b)(1).
To establish standing, Plaintiffs “must state a plausible
claim that [they have] suffered an injury in fact fairly
traceable to the actions of the defendant that is likely to be
redressed by a favorable decision on the merits.” Humane
Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015).
“[G]eneral factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss
we presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.” Bennett, 520
U.S. at 168 (internal quotation marks omitted). However,
“we do not assume the truth of legal conclusions, nor do we
accept inferences that are unsupported by the facts set out in
the complaint.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015) (citations and internal quotation marks omitted).
Furthermore, “‘[w]hen considering any chain of allegations
for standing purposes, we may reject as overly speculative
those links which are predictions of future events (especially
future actions to be taken by third parties).’” Id. at 21(quoting United Transp. Union v. ICC, 891 F.2d 908, 913
(D.C. Cir. 1989)). In determining standing, we may consider
materials outside of the complaint. See Coal. for
Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.
Cir. 2003).
Applying this standard, we review standing de novo.
Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138
(D.C. Cir. 2011).
11
III.
Plaintiffs first contend that the Individual Plaintiffs,
Sowerwine and Foran, have alleged an injury in fact.
Plaintiffs also submit that FWW would have associational
standing on behalf of its members. See, e.g., Sierra Club v.
EPA, 754 F.3d 995, 999 (D.C. Cir. 2014) (explaining that
associational standing requires an organization to show,
among other things, that “at least one of [the organization’s]
members would have standing to sue”). Because the analyses
for both the Individual Plaintiffs and FWW’s members are
identical, see id., we address them jointly here.
For the Individual Plaintiffs or FWW’s individual
members to establish standing, they must show (i) they have
“suffered a concrete and particularized injury in fact, (ii) that
was caused by or is fairly traceable to the actions of the
defendant, and (iii) is capable of resolution and likely to be
redressed by judicial decision.” Osborn v. Visa, 797 F.3d
1057, 1063 (D.C. Cir. 2015) (internal quotation marks
omitted). Here, because Plaintiffs are not directly subjected
to the regulation they challenge, “standing is ‘substantially
more difficult to establish.’” Public Citizen, Inc. v. Nat’l
Highway Traffic Safety Admin. (Public Citizen I), 489 F.3d
1279, 1289 (D.C. Cir. 2007) (citing Defs. of Wildlife, 504 U.S.
at 562). In order to have suffered an injury in fact, Plaintiffs
must have suffered an injury that is “(1) concrete, (2)
particularized, and (3) actual or imminent.” Id. at 1292. A
concrete injury is “direct, real, and palpable—not abstract.”
Id. A particularized injury is “personal, individual, distinct,
and differentiated—not generalized or undifferentiated.” Id.
An actual or imminent injury is “certainly impending and
immediate—not remote, speculative, conjectural, or
hypothetical.” Id. at 1293.
12
Here, Plaintiffs claim their injury in fact is an increased
risk of foodborne illness from unwholesome, adulterated
poultry resulting from the Defendants’ regulation. 4
Increased-risk-of-harm cases implicate the requirement that
an injury be actual or imminent because “[w]ere all purely
speculative increased risks deemed injurious, the entire
requirement of actual or imminent injury would be rendered
moot, because all hypothesized, nonimminent injuries could
be dressed up as increased risk of future injury.” Id. at 1294
(quoting NRDC v. EPA (NRDC II), 464 F.3d 1, 6 (D.C. Cir.
2006)) (internal quotation marks omitted). Furthermore,
“[t]he Supreme Court has repeatedly held that disputes about
future events where the possibility of harm to any given
individual is remote and speculative are properly left to the
policymaking Branches, not the Article III courts.” Id. at
1295. As a result, this Court has limited its jurisdiction over
cases alleging the possibility of increased-risk-of-harm to
those where the plaintiff can show “both (i) a substantially
increased risk of harm and (ii) a substantial probability of
harm with that increase taken into account.” Id. at 1295(emphasis in original); accord Susan B. Anthony List, 134 S.
Ct. at 2341 (“An allegation of future injury may suffice if the
threatened injury is ‘certainly impending,’ or there is a
‘“substantial risk” that the harm will occur.’” (quoting
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 n.5,
1150 (2013))). “The word ‘substantial’ of course poses
questions of degree, questions far from fully resolved.” Va.
State Corp. Comm’n v. FERC, 468 F.3d 845, 848 (D.C. Cir.
2006).
4
Because Plaintiffs argue that their increased risk of harm, or
alternatively, that the costs associated with avoiding that risk
constitute injuries sufficient for standing, we address those injuries
separately.
13
Although Plaintiffs may establish standing by
demonstrating an increased risk of harm, “[i]n applying the
‘substantial’ standard, we are mindful . . . that the
constitutional requirement of imminence . . . necessarily
compels a very strict understanding of what increases in risk
and overall risk levels can count as ‘substantial.’” Public
Citizen I, 489 F.3d at 1296. Accordingly, “the proper way to
analyze an increased-risk-of-harm claim is to consider the
ultimate alleged harm – such as death, physical injury, or
property damage . . . – as the concrete and particularized
injury and then to determine whether the increased risk of
such harm makes injury to an individual citizen sufficiently
‘imminent’ for standing purposes.” Id. at 1298.
The Individual Plaintiffs’ and FWW members’ alleged
harm is the foodborne illness that would result from
consuming adulterated, unwholesome chicken produced under
the NPIS. In order to have standing, therefore, Plaintiffs at
least need to plausibly allege that the NPIS substantially
increases the risk of foodborne illness when compared to the
existing inspection methods. Accordingly, in order to satisfy
this Court’s two-part analysis, the Plaintiffs must
demonstrate, under the relevant standard, (1) that the NPIS
substantially increases the risk of contracting foodborne
illness compared to the existing inspection methods, and (2) a
substantial probability that the Individual Plaintiffs and FWW
members will contract a foodborne illness given that increase
of risk. A failure to satisfy either of these prongs would
deprive this Court of jurisdiction to hear Plaintiffs’ case. See
Public Citizen I, 489 F.3d at 1295.
14
A.
Plaintiffs argue that their complaint and submissions in
support of their motion for preliminary injunction sufficiently
establish that the NPIS substantially increases the risk of harm
that will arise from consuming unwholesome, adulterated
poultry. Defendants submit that Plaintiffs have failed to
demonstrate a substantially increased risk of harm.
We find that Plaintiffs’ complaint, as well as their various
submissions in support of their motion for preliminary
injunction, fails to plausibly allege that the NPIS taken as a
whole substantially increases the risk of foodborne illness as a
result of unwholesome, adulterated poultry. First, a careful
examination of Plaintiffs’ allegations demonstrates that they
have not plausibly alleged that the NPIS substantially
increases the risk of foodborne illness compared to the
existing inspection systems. To be sure, Plaintiffs’
submissions contained detailed allegations about how HIMP,
and by extension, the NPIS, differs from the existing poultry
inspection systems. See Compl. ¶¶ 31-77, J.A. 16-25. The
complaint is replete with what Plaintiffs argue are the NPIS’s
inadequacies. See Compl. ¶¶ 78-126, J.A. 25-29. The
complaint also outlines what Plaintiffs perceive are the flaws
with the HIMP studies and analyses. See Compl. ¶¶ 148-61,
J.A. 33-35. However, these differences and perceived flaws
do not demonstrate a substantial increase in the risk of
foodborne illness under the NPIS compared to the existing
inspection systems.
To the extent that the presence of adulterated,
unwholesome poultry could give rise to an inference of
resulting foodborne illness, these allegations still fall short
because they fail to allege that the NPIS as a whole will
15
produce significantly more adulterated, unwholesome chicken
compared to the existing inspection systems. Plaintiffs’
allegations focus on certain discrete aspects of the NPIS: the
reduced number of online federal inspectors, the speed at
which the online federal inspectors must evaluate carcasses,
and the substitution of establishment personnel for federal
inspectors. See Compl. ¶¶ 78-121, J.A. 25-29. However,
Plaintiffs’ complaint contains only a single allegation that
references another key aspect the NPIS: the reallocation of
resources for offline inspection. Compl. ¶ 183, J.A. 39.
Under the NPIS, additional offline verification inspectors will
check to see to that inspection protocols are being followed
and conduct pathogen testing. See 77 Fed. Reg. at 4422.
Plaintiffs’ complaint makes no allegation regarding the
impact of increased offline verification inspectors on the
presence of adulterated, unwholesome poultry. Although
Plaintiffs fault Defendants for failing to account for a
reduction in online inspectors in Defendants’ risk assessment,
Plaintiffs’ failure to account for the increase in offline
inspections and their attendant impact on poultry production
prevents us from inferring that the NPIS as a whole
substantially increases the risk of foodborne illness.
Other allegations in the complaint reveal the same
problem. For example, the complaint outlines HIMP
personnel’s alleged failure to catch disease-related conditions
on poultry. See Compl. ¶ 177, J.A. 38 (“An FWW analysis of
the data for 14 HIMP plants found that out of 229
[Noncompliance Reports] filed from March to August 2011,
208 (90 percent) were for visible fecal contamination that was
missed by company employees.”). Although these
allegations, at best, give rise to the inference that
establishment personnel will not be as effective in identifying
adulterated poultry, they do not allege how NPIS inspection
as a whole will impact the amount of adulterated poultry.
16
Notably, these allegations do not allege that these results are
worse than what plants do under existing inspection systems.
Thus, they fail to plausibly allege that the regulations
substantially increase the risk of foodborne illness.
Plaintiffs’ submissions in support of their motion for
preliminary injunction suffer from the same defect. The
sworn affidavits from existing USDA inspectors go into great
detail about the differences between the NPIS and existing
poultry inspection systems. One inspector explained that
under the existing inspection systems, they “would have 3
inspectors on each line, with 90 birds per minute split among
them, so that each inspector was looking at 30 birds per
minute” but under HIMP, one inspector looks “at up to 200
birds, or more, per minute.” 5 J.A. 298. Another inspector
claimed, “I know I cannot detect all of the carcasses with
Food Safety defects, and it is reasonable to assume that some
are going out to the public.” J.A. 306. A third inspector said,
“I know the kinds of unwholesome, mutilated, and diseased
chickens that are processed and shipped out for sale and I feel
it is important to share this information with consumers and
taxpayers” because the HIMP system “is tantamount to
having the wolves watch the proverbial henhouse, but these
chickens are real and they could very likely hurt or kill
someone.” J.A. 317. Another inspector who worked
previously for a chicken production company and serves
currently as a USDA inspector outlined the various pressures
that poultry production personnel are under to increase the
number of birds that are shipped out to consumers. J.A. 321-
24. Although these statements may be alarming, even taken
5
This number is higher than the final rule, which limits the speed
for young chickens to 140 birds per minute. 79 Fed. Reg. at 49570,
Plaintiffs claim this number remains too high. Compl. ¶¶ 92-99,
J.A. 27.
17
as true, they do not allege that there is a substantially
increased risk of foodborne illness because they do not allege
that the risk of unwholesome, adulterated poultry is higher
under the NPIS as a whole than the existing inspection
systems.
Plaintiffs could perhaps overcome this deficiency by
providing the Court with an alternative basis from which to
infer that NPIS inspection results in a substantially increased
risk of unwholesome, adulterated poultry. Here, if Plaintiffs
could plausibly allege through their use of statistics that NPIS
poultry creates a substantial increase in the risk of foodborne
illness, they would allege a sufficient injury for standing. We
have, in the past, refused to require a quantitative analysis in
order to establish standing in increased-risk-of-harm cases,
see NRDC II, 464 F.3d at 7, and we likewise refuse to hold
that statistics are required for such cases. However, we
remain mindful that “[d]etermining whether a complaint
states a plausible claim [of injury] is context-specific,
requiring the reviewing court to draw on its experience and
common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 663-64
(2009). Accordingly, where a plaintiff’s allegations
incorporate statistics and the plaintiff contends that the
statistics demonstrate a substantial increase in the risk of
harm, the plaintiff must allege something from which the
Court can infer that risk. Using our experience and common
sense, we cannot make this inference from Plaintiffs’
statistics.
A review of Plaintiffs’ statistics demonstrates their
failure to plausibly allege a substantial increase in the risk of
harm. Plaintiffs point to isolated statistics where Defendants
found Salmonella rates to be “higher” in chicken processed in
HIMP establishments than in non-HIMP establishments, but
the complaint does not specify how much higher the rates
18
were. See Compl. ¶¶ 162-164, J.A. 35-36. Plaintiffs also
submitted selections from an FSIS report that found under
some scenarios, “a 0.2% increase in the proportion of samples
testing Campylobacter positive,” but the same page of this
report concluded that under most projected scenarios, the
samples testing positive for Salmonella or Campylobacter
would decrease. J.A. 430. Plaintiffs also alleged that 0.1% of
Campylobacter illnesses would be attributable to the NPIS
“under some scenarios.” Compl. ¶ 180, J.A. 39. Plaintiffs
likewise relied on Defendants’ risk assessment assumption
that annual Salmonella and Campylobacter illness
“attribut[able] to poultry are about 174,686 and 169,005,
respectively.” J.A. 430. Plaintiffs plucked these statistics
from Defendants’ studies but provide no allegations from
which we can infer that the statistics reflect a substantial
increase in the risk of harm. Indeed, Defendants’ risk
assessment concluded under most scenarios that annual
illnesses from Salmonella and Campylobacter would remain
unchanged or would decrease under the NPIS. J.A. 430-31.
Even Plaintiffs’ complaint acknowledges that the risk of
Campylobacter increase is “ambiguous.” Compl. ¶ 180, J.A.
39. An ambiguous increase in risk is hardly a substantial
increase in risk.
Plaintiffs’ statistics suffer from additional problems.
First, these studies predate the final rule’s amendments.
Although not necessarily a problem by itself, the rule’s
amendments specifically lowered the line speeds (one of
Plaintiffs’ chief criticisms) and made the transition to NPIS
inspection voluntary. Plaintiffs make no allegations about the
impact of these changes on their statistical claims.
Furthermore, Plaintiffs fail to account for how increased
allocations in offline inspections would impact the risk. In
this context, Plaintiffs’ statistics do not plausibly allege that
NPIS inspection as a whole substantially increases the risk
19
that poultry will be contaminated with Salmonella or
Campylobacter compared to the existing inspection systems. 6
Because Plaintiffs have failed to plausibly allege that the
NPIS substantially increases the risk of producing
unwholesome, adulterated poultry compared to the existing
inspection systems, they do not have standing. 7
6
Our conclusion that Plaintiffs’ statistics do not plausibly allege a
substantial increase in the risk of harm here does not mean that a
plaintiff could never plausibly allege such an increase through the
use of statistics culled from government-conducted studies that
reach conclusions contrary to the plaintiff’s allegations. Rather, it
means that, to the extent a plaintiff relies on statistics to show a
substantial increase in the risk of harm, a plaintiff cannot allege a
bare statistic without plausibly alleging how the statistic reflects a
substantial increase in the risk of harm.
7
Plaintiffs ask us to follow the Second Circuit’s approach to
increased-risk-of-foodborne illness outlined in Baur v. Veneman,
352 F.3d 625 (2d Cir. 2003). In Baur, the Second Circuit held “that
exposure to an enhanced risk of disease transmission may qualify as
injury-in-fact in consumer food . . . suits.” Id. at 628. Baur’s
approach to increased-risk-of-harm cases is not without
controversy. See Va. State Corp., 468 F.3d at 848 (noting the
conflict among the circuits about what increase in risk must be
shown to support standing); NRDC v. EPA (NRDC I), 440 F.3d
476, 484 (D.C. Cir. 2006), vacated by rh’g en banc, NRDC II, 464
F.3d 1 (noting the potential “expansiveness” of Baur’s reasoning).
However, we need not resolve any controversy here. Although
Baur makes passing reference to “a moderate increase in the risk of
disease,” id. at 637, the Second Circuit’s reasoning focused on the
probability of the plaintiff suffering harm, see id.; see also NRDC I,
440 F.3d at 483 (describing Baur in the context of increased
probability of harm). Because we resolve Plaintiffs’ standing on
the first prong of the Public Citizen I analysis, Baur does not
impact our analysis here.
20
B.
Plaintiffs also contend that their avoidance of NPIS
poultry, or alternatively the increased cost of seeking out
poultry from other sources, constitutes an injury in fact to
establish standing. Plaintiffs argue that they have taken these
steps to avoid potential injury from NPIS-produced poultry.
Plaintiffs’ complaint alleges that FWW “[m]embers who wish
to continue to eat chicken will have to spend additional
resources to seek out and purchase poultry from plants that
have not adopted NPIS, if this is even possible. FWW
members that have lost all confidence in USDA’s inspection
legend will simply avoid eating chicken altogether.” Compl.
¶ 6, J.A. 11-12. Plaintiffs’ declarations in support of their
motion for a preliminary injunction contain more detailed
allegations of avoidance and increased cost, making clear that
such costs would be incurred due to their fear of illness from
contaminated poultry produced under the NPIS. Jane Foran
expressed concern that NPIS poultry may “cause harm to
[her] family and [her] health,” leading her to “stop eating
chicken in restaurants” and to “look for farmers’ markets or
co-ops.” Foran Decl. ¶¶ 11, 13, J.A. 49. Margaret
Sowerwine explained that she was “concerned that there will
be more contaminated and lower-quality poultry” and that she
may “purchas[e] product that could make [her] sick.”
Sowerwine Decl. ¶¶ 7, 9, J.A. 53-54. As a result, she planned
to “find a local farmer” for her poultry purchases, resulting in
increased costs or avoiding poultry completely if she cannot
afford it. Id. ¶ 10, J.A. 54. Wendy Davis feared that she “will
be purchasing product that could make [her] or [her] husband
sick or even die.” Davis Decl. ¶ 8, J.A. 59. Alina Pittman
was “concerned that the USDA’s NPIS rules will allow for
more chicken and turkey that is not safe and unwholesome,”
which will cause her to “look for farmers’ markets” where her
21
“costs will go up considerably.” Davis Decl. ¶¶ 10, 14, J.A.
64, 65. Plaintiffs argue that these avoidance costs are not
self-inflicted injuries and are sufficient to establish standing.
In Clapper, the Supreme Court explained that plaintiffs
“cannot manufacture standing merely by inflicting harm on
themselves based on their fears of hypothetical future harm
that is not certainly impending” because such injuries “are not
fairly traceable” to the conduct creating that fear. 133 S. Ct.
at 1151. “[O]therwise, an enterprising plaintiff would be able
to secure a lower standard for Article III standing by making
an expenditure based on a nonparanoid fear.” Id. As
explained in Section III.A, Plaintiffs have not plausibly
alleged that they face a substantial increase in the risk of harm
from NPIS-produced poultry. Just as the respondents in
Clapper could not repackage their “first failed theory of
standing” as a theory of costs, id., Plaintiffs here cannot
establish standing by incurring costs that “are simply the
product of their fear of” NPIS poultry, id. at 1152.
Accordingly, Plaintiffs’ “self-inflicted injuries are not fairly
traceable” to the NPIS, “and their subjective fear . . . does not
give rise to standing.” Id. at 1152-53.
IV.
FWW argues that it has standing to pursue its claims on
its own behalf. FWW may assert standing on its own behalf,
but organizational standing requires FWW, “like an individual
plaintiff, to show actual or threatened injury in fact that is
fairly traceable to the alleged illegal action and likely to be
redressed by a favorable court decision.” Equal Rights Ctr.,
633 F.3d at 1138 (internal quotation marks omitted). An
organization must allege more than a frustration of its purpose
because frustration of an organization’s objectives “is the type
of abstract concern that does not impart standing.” Nat’l
22
Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433
(D.C. Cir. 1995). “The court has distinguished between
organizations that allege that their activities have been
impeded from those that merely allege that their mission has
been compromised.” Abigail All. for Better Access to
Developmental Drugs v. Eschenbach, 469 F.3d 129, 133
(D.C. Cir. 2006). Accordingly, for FWW to establish
standing in its own right, it must have “suffered a concrete
and demonstrable injury to [its] activities.” PETA v. USDA,
797 F.3d 1087, 1093 (D.C. Cir. 2015) (internal quotation
marks omitted). Making this determination is a two-part
inquiry – “we ask, first, whether the agency’s action or
omission to act injured the [organization’s] interest and,
second, whether the organization used its resources to
counteract that harm.” Id. at 1094 (internal quotation marks
omitted). We need not address the second prong of this
inquiry because it is clear that FWW has not sufficiently
alleged an injury to its interest.
To allege an injury to its interest, “an organization must
allege that the defendant’s conduct perceptibly impaired the
organization’s ability to provide services in order to establish
injury in fact.” Turlock Irrigation Dist. v. FERC, 786 F.3d
18, 24 (D.C. Cir. 2015) (internal quotation marks omitted).
An organization’s ability to provide services has been
perceptibly impaired when the defendant’s conduct causes an
“inhibition of [the organization’s] daily operations.” PETA,
797 F.3d at 1094 (quoting Action All. of Senior Citizens of
Greater Phila. v. Heckler, 789 F.2d 931, 938 (D.C. Cir.
1986)). Our precedent makes clear that an organization’s use
of resources for litigation, investigation in anticipation of
litigation, or advocacy is not sufficient to give rise to an
Article III injury. Id. at 1093-94; Turlock Irrigation Dist.,
786 F.3d at 24. Furthermore, an organization does not suffer
an injury in fact where it “expend[s] resources to educate its
23
members and others” unless doing so subjects the
organization to “operational costs beyond those normally
expended.” Nat’l Taxpayers Union, Inc., 68 F.3d at 1434; see
also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12
(D.C. Cir. 2011) (organization’s expenditures must be for
“‘operational costs beyond those normally expended’ to carry
out its advocacy mission” (quoting Nat’l Taxpayers Union, 68
F.3d at 1434)).
According to Patricia Lovera, the Assistant Director of
FWW, one of FWW’s “primary purposes is to educate the
public about food systems that guarantee safe, wholesome
food produced in a sustainable manner.” Lovera Decl. ¶ 4, 8
J.A. 68. As a result, FWW is concerned that NPIS will allow
inadequately trained staff to inspect food and that food safety
will suffer because inspection will be turned over to poultry
establishment personnel. Id. ¶¶ 8-9, 21, J.A. 69-70, 72-73.
Lovera contends that allowing the NPIS to go into effect will
cause “all of the organization’s time and resources spent
advocating against NPIS [to have been] wasted.” Id. ¶ 10,
J.A. 70. Lovera also claims that “FWW would have to
increase the resources that it spends on educating the general
public and its members that the NPIS rules do not allow for
the inspection of poultry product prescribed by the PPIA.” Id.
¶ 11, J.A. 70. Additionally, “FWW will spend time and
money on increasing its efforts to educate members of the
public that just because a poultry product has a USDA
inspection legend does not mean that it is not adulterated and
is wholesome.” Id. ¶ 12, J.A. 70-71. Finally, Lovera states
that “FWW will increase the amount of resources that it
spends encouraging its members who wish to continue to eat
chicken to avoid poultry from such companies” and “to
8
The declaration erroneously contains two paragraphs numbered as
“4.” This citation refers to the second of those paragraphs.
24
purchase poultry at farmers’ markets or direct from
producers.” Id. ¶ 13, J.A. 71.
Lovera’s statements make clear that FWW has alleged no
more than an abstract injury to its interests. Our recent
decision in PETA is instructive. In PETA, an animal-welfare
organization challenged the USDA’s failure to apply statutory
general animal welfare requirements to birds. 797 F.3d at
1089-91. Ordinarily, when the USDA applied the animal
welfare requirements, an outside organization like PETA
could seek redress for mistreatment by filing a complaint with
the USDA. Because the USDA refused to apply those
requirements to birds, PETA could not seek redress for
mistreatment of birds through the USDA’s complaint
procedures. Id. at 1091. Additionally, because the USDA
was not applying the requirements to birds, the USDA was
not generating inspection reports that the organization used to
educate its members. Id. The agency inaction injured the
organization because the organization suffered a “denial of
access to bird-related . . . information including, in particular,
investigatory information, and a means by which to seek
redress for bird abuse” Id. at 1095. We found these injuries to
be “concrete and specific to the work” in which the
organization was engaged. Id. (quoting Action All., 789 F.2d
at 938). The denial of access to an avenue for redress and
denial of information “perceptibly impaired [the
organization’s] ability to both bring [statutory] violations to
the attention of the agency charged with preventing avian
cruelty and continue to educate the public.” Id. (internal
quotation marks omitted).
In the present case, taking all of FWW’s allegations and
Lovera’s statements as true, FWW has alleged nothing more
than an abstract injury to its interests that is insufficient to
support standing. FWW does not allege that the NPIS limits
25
its ability to seek redress for a violation of law. Nor does
FWW allege that the USDA’s action restricts the flow of
information that FWW uses to educate its members.
Although Lovera alleges that FWW will spend resources
educating its members and the public about the NPIS and
USDA inspection legend, nothing in Lovera’s declaration
indicates that FWW’s organizational activities have been
perceptibly impaired in any way. 9 Accordingly, FWW has
not alleged an injury to its interest to give rise to
organizational standing.
V.
Plaintiffs’ final standing argument on the basis of
procedural injury is easily resolved. Plaintiffs claim that they
have suffered a procedural injury sufficient to establish
standing because Defendants violated their procedural rights.
9
The concurrence contends that FWW has met the first prong of
the organizational standing analysis because, taking FWW’s
allegations as true, the complaint has alleged a “direct conflict”
between the NPIS and FWW’s mission. Conc. Op. at 6 n.5
(Henderson, J.). However, even if FWW were to allege a “direct
conflict,” an issue on which we express no opinion, FWW would
still need to allege an injury to its interest. “[I]n those cases where
an organization alleges that a defendant’s conduct has made the
organization’s activities more difficult, the presence of a direct
conflict between the defendant’s conduct and the organization’s
mission is necessary – though not alone sufficient – to establish
standing.” Nat’l Treasury Emps. Union v. United States, 101 F.3d
1423, 1430 (D.C. Cir. 1996); see also Am. Soc’y for Prevention of
Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir.
2011) (“If the challenged conduct affects an organization’s
activities, but is neutral with respect to its substantive mission, we
have found it ‘entirely speculative’ whether the challenged practice
will actually impair the organization’s activities.” (quoting Nat’l
Treasury Emps. Union, 101 F.3d at 1430)).
26
However, “the omission of a procedural requirement does not,
by itself, give a party standing to sue.” Ctr. for Biological
Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 479 (D.C.
Cir. 2009). “[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation – a
procedural right in vacuo – is insufficient to create Article III
standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496
(2009). As explained in the foregoing, Plaintiffs have failed
to establish that they will suffer any cognizable injury.
Because Plaintiffs “have failed to establish that they will
likely suffer a substantive injury, their claimed procedural
injury . . . necessarily fails.” Sierra Club v. EPA, 754 F.3d
995, 1002 (D.C. Cir. 2014).
VI.
For the foregoing reasons, we hold that Plaintiffs have
failed to show any cognizable injury sufficient to establish
standing. Accordingly, we affirm the District Court.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: Although I agree with my colleagues that
the individual and organizational plaintiffs do not have
standing, I so conclude for a different reason. Regarding the
two individual plaintiffs, I believe we need not assess whether
they face a “substantially increased risk of harm
and . . . substantial probability of harm” from consuming
NPIS-inspected poultry (NPIS poultry), see Public Citizen v.
Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1295
(D.C. Cir. 2007) (emphases in original), because, as their
declarations make clear, they have the alternative of
consuming non-NPIS poultry—e.g., by purchasing poultry
from a farmers’ market—and they have failed to allege that
the alternative is “not readily available at a reasonable
price.” See Coal. for Mercury-Free Drugs v. Sebelius, 671
F.3d 1275, 1281 (D.C. Cir. 2012) (emphasis in original). For
this reason, any injury they suffer from consuming NPIS
poultry is a self-inflicted injury that would not establish
Article III standing. Regarding plaintiff Food & Water Watch
(FWW), I would reject its organizational standing argument
because its only expenditures are made for “pure issue-
advocacy,” an insufficient injury to support standing under
our precedent. See Ctr. for Law & Educ. v. Dep’t of Educ.,
396 F.3d 1152, 1162 (D.C. Cir. 2005).
The individual plaintiffs allege that they cannot
determine whether the poultry they buy at grocery stores is
NPIS-inspected and, at the same time, that NPIS poultry
accounts for 99.9% of available poultry. See Compl. ¶ 34. If
the plaintiffs were in fact limited to purchasing poultry at
grocery stores, I too would most likely conduct the
“substantial increase and substantial probability” inquiry my
colleagues undertake. See Maj. Op. 13–18. But that is not the
case. Under our precedent, if a plaintiff has access to an
alternative of the product he claims causes his injury, he must
show that the alternative is either (1) “not readily available”
or (2) not “reasonabl[y] price[d]” to establish standing.
2
Public Citizen v. Foreman, 631 F.2d 969, 974 n.12 (D.C. Cir.
1980). And because the plaintiffs assert only that they “seek
out chicken from [both] local farmers’ market[s] [and]
grocer[s],” Foran Decl. ¶ 3, J.A. 47 (emphasis added), they
have failed to do so.1 To rule out access to an alternative
under the first prong, the alternative must be “difficult to
obtain.” See Coal. for Mercury-Free Drugs, 671 F.3d at 1281(emphasis omitted). It is not enough, for example, to allege
that some, or even many, suppliers do not provide it. See id.
at 1282. Under the second prong, the plaintiffs must allege
more than “the mere existence of a price differential,” id.;
instead, they must claim that the product is not reasonably
priced. See id. at 1282–83. Notwithstanding neither assertion
is “overly burdensome,” Foreman, 631 F.2d at 974 n.12; see
Coal. for Mercury-Free Drugs, 671 F.3d at 1281, 1283 (price
differential must have more than “little effect” on alternative’s
“affordability for the average person”), the plaintiffs’ failure
to affirmatively allege unavailability or unreasonable cost
should end our inquiry. See Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992) (“[t]he party invoking federal
jurisdiction bears the burden of establishing” standing).
Granted, the two individual plaintiffs’ declarations are
vague about the cost and accessibility of farmers’ markets but
they are plainly insufficient to sustain their standing in my
view. See Foran Decl. ¶ 6, J.A. 48 (plaintiff unable to find
farmers’ market near family residences); see also Sowerwine
Decl, supra n.1; cf. FWW member Pittman Decl. ¶ 10, J.A. 64
1
See also Sowerwine Decl. ¶ 10, J.A. 54 (“If the USDA’s
rules go into effect . . . I will have to find a local farmer from whom
I trust to purchase chicken and turkey.”); cf. FWW Member Pittman
Decl. ¶ 10, J.A. 64 (“If the USDA’s rules go into effect . . . . I
would have to look for farmers’ markets”). Critically, the plaintiffs
allege that poultry sold at farmers’ markets is “slaughtered in
sanitary conditions.” See e.g., Foran Decl. ¶ 3, J.A. 48.
3
(“turkey is not always available year –round” [sic] at
preferred farmers’ market). But the plaintiffs allege no facts
supporting the notion that poultry from farmers’ markets is
either unavailable or unreasonably priced.2 At best, their
allegations are agnostic about the proximity, inventory and
pricing of nearby markets, which is, to me, insufficient to
conclude that non-NPIS poultry is either “difficult to obtain”
or that the price differential is sufficient to affect
“affordability for the average person.” Coal. for Mercury-
Free Drugs, 671 F.3d at 1281, 1283 (emphasis omitted).
The individual plaintiffs have two options. They can
either purchase/consume the source of their alleged injury
(i.e., NPIS poultry) or they can avoid it. Avoidance then
presents two possibilities. They can stay away from poultry
altogether or they can purchase/consume non-NPIS poultry.
In Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), the
Supreme Court concluded that the respondents’ alleged
injury—likelihood that their telephone and email
communications would be intercepted by domestic
surveillance—was, for many reasons, too speculative to
support standing, id. at 1147–50. It then rejected the
respondents’ argument that the costs they incurred to avoid
2
FWW member Pittman alleges that “costs will go up
considerably” at farmers’ markets, where “ground turkey alone is
$12 per pound.” Pittman Decl. ¶ 10, J.A. 64. I find her assertion
inadequate for two reasons. First, she does not mention the price of
ground turkey at her grocery store (presumably selling NPIS
turkey). Second, assuming that her reference to “turkey bacon and
deli meat” costing “$9 per pound” at her grocery store, id. ¶ 3, J.A.
62, results in a $3 per pound price increase in ground turkey at
farmers’ markets, I cannot conclude that this threadbare price
differential recital suffices to establish that “affordability for the
average person” is affected. Coal. for Mercury-Free Drugs, 671
F.3d at 1283.
4
surveillance were themselves a cognizable injury, concluding
that “allowing respondents to bring this action based on costs
they incurred in response to a speculative threat would be
tantamount to accepting a repackaged version of respondents'
first failed theory of standing.” Id. at 1151. Clapper
subsequently dubbed the respondents’ “avoidance” injury
“self-inflicted.” Id. at 1152. I take from this holding that
injury attendant on the avoidance of an uncognizable injury is
itself insufficient for standing because, for one thing, it is self-
imposed. Here, the individual plaintiffs’ professed injury
from eschewing poultry altogether is similarly self-imposed—
and therefore insufficient for standing—because they are free
to purchase/consume poultry that is neither “difficult to
obtain” nor “unreasonably priced.” Coal. for Mercury-Free
Drugs, 671 F.3d at 1281, 1283 (emphasis omitted).3
I believe this case is on all fours with Coalition for
Mercury-Free Drugs. There, the plaintiffs challenged the
Food and Drug Administration’s (FDA) approval of the use of
thimerosal, a mercury-based preservative, in certain vaccines.
Coal. for Mercury-Free Drugs, 671 F.3d at 1276–77. The
plaintiffs alleged a “fear of future exposure to mercury,”
claiming that it could cause “miscarriages, autism, and other
developmental disorders.” Id. at 1278, 1280 (emphasis in
3
Granted, Clapper was decided at the summary judgment
stage, 133 S. Ct. at 1146, and here we review dismissal. Food &
Water Watch v. Vilsack, 79 F.Supp.3d 174, 179 (D.D.C. 2015);
Maj. Op. 8–10. Although the showing necessary to establish
standing varies at each stage of the litigation, see Abigail Alliance
for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d
129, 132 (D.C. Cir. 2006), nonetheless we can plainly uphold
dismissal of claims for lack of standing, including lack of standing
based on self-inflicted injury. See e.g., Fair Emp’t Council of
Greater Washington, Inc., v. BMC Marketing Corp., 28 F.3d 1268,
1271, 1276 (D.C. Cir. 1994).
5
original). But the plaintiffs did not allege that thimerosal-free
vaccines were not readily available at a reasonable price. Id.
at 1282. “On the contrary,” we recognized, “they sa[id] that
they w[ould] refuse thimerosal-preserved vaccines.” Id. at
1280. Given the existence of a readily available and
reasonably priced thimerosal-free alternative—the plaintiffs’
“declarations [having] claim[ed] only that there was some
price differential at a few individual outlets,” id. at 1283(emphasis added)—any injury from exposure to thimerosal-
based vaccines would be self-inflicted. And, accordingly, we
concluded that the plaintiffs lacked standing. See id.4
Regarding plaintiff FWW, our organizational standing
jurisprudence applies a two-part test to determine whether an
organization has alleged a cognizable injury. See Equal
4
Foreman, on the other hand, is inapposite. There, the
plaintiffs challenged the FDA’s approval of the use of nitrites,
whose probable carcinogenic effect was undisputed, as a bacon
preservative. 631 F.2d. at 973–74. Because the plaintiffs alleged
that bacon preserved without nitrites was “not readily available at a
reasonable price,” id. at 974 n.12 (emphasis added), we concluded
the plaintiffs had standing.
Baur v. Veneman is similarly distinguishable. 352 F.3d 625(2d Cir. 2003). There the plaintiffs challenged the United States
Department of Agriculture’s (USDA) failure to “ban the use of
downed livestock as food for human consumption.” Id. at 628.
The court did not discuss whether the plaintiffs had any way to
obtain meat that did not come from downed livestock. Here,
however, the plaintiffs posit that poultry from farmers’ markets
does not expose them to the injury allegedly resulting from NPIS
poultry. See Foran Decl. ¶ 3, J.A. 48. Although Baur did not
discuss the absence of alternative, and allegedly safe, meat
suppliers, the Second Circuit approvingly cited Foreman for the
proposition that, if an alternative is available, a plaintiff must allege
that it is “not readily available at a reasonable price.” Id. at 634.
6
Rights Ctr. v. Post Props., Inc., 633 F.3d 1136 (D.C. Cir.
2011). Litigation brought by an organization against a
government entity requires that we ask, first, whether the
agency’s action or omission to act “injured the
[organization’s] interest and, second, whether the
[organization] used its resources to counteract that harm.”5
5
In my view, the first prong requires only a “direct conflict”
with the plaintiff organization’s mission. Am. Soc’y. for Prevention
of Cruelty to Animals v. Feld Entm’t, 659 F.3d 13, 25 (D.C. Cir.
2011) (“First, an organization seeking to establish [organizational]
standing must show a direct conflict between the defendant’s
conduct and the organization’s mission.” (quotations omitted)); See
also PETA v. USDA, 797 F.3d 1087, 1095 (D.C. Cir. 2015) (“[W]e
have emphasized the need for a direct conflict between the
defendant’s conduct and the organization’s mission.” (quotations
omitted)); Abigail Alliance, 469 F.3d at 133 (“[T]here must . . . be a
direct conflict between the defendant’s conduct and the
organization’s mission.”). Unlike my colleagues, I believe FWW
satisfies this prong. Its mission includes “maintaining strong
federal inspection of poultry” and “work[ing] to promote the
practices and policies that will result in sustainable and secure food
systems.” Lovera Decl. ¶ 4, J.A. 68 (reference to paragraph 4 is to
second of paragraphs numbered “4”). And FWW alleges that the
NPIS “threaten[s] public health and introduc[es] unwholesome
poultry into interstate commerce.” Compl. ¶ 1, J.A. 9. Of course,
“[f]or purposes of ruling on a motion to dismiss for want of
standing, both the trial and reviewing courts must accept as true all
material allegations of the complaint.” Warth v. Seldin, 422 U.S.
490, 501 (1975). It is only because FWW’s resources are spent on
“pure issue-advocacy,” as explained infra, that its standing is
lacking. My colleagues, I believe, have erroneously injected a
prong-two consideration—i.e., what FWW has spent its money to
combat—into the prong-one inquiry whether the NPIS “directly
conflicts” with FWW’s mission. They distinguish PETA under
prong one by simply highlighting the agency’s omissions. Maj. Op.
24. In stopping at that point, they do not complete the prong-one
analysis, that is, whether or not what the agency does—or, as in
7
Id. at 1140 (quotation marks omitted). Under the second
prong, we have held that expenditures for “pure issue-
advocacy” are insufficient for standing. See Ctr. for Law &
Educ., 396 F.3d at 1162 (D.C. Cir. 2005) (“Here, the only
‘service’ impaired is pure issue-advocacy . . . . In sum,
Appellants fail to demonstrate standing . . . . ”); cf. Sierra
Club v. Morton, 405 U.S. 727, 739 (1972) (“[A] mere
‘interest in a problem’ . . . is not sufficient by itself to render
the organization ‘adversely affected’ . . . . [I]f a ‘special
interest’ in [a] subject were enough to entitle the [plaintiff] to
commence this litigation, there would appear to be no
objective basis upon which to disallow a suit by any other
bona fide ‘special interest’ organization . . . .”). In other
words, an organization’s “expend[iture of] resources to
educate its members and others regarding” government action
or inaction “does not present an injury in fact.” See e.g., Nat’l
Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434
(D.C. Cir. 1995) (non-profit taxpayer organization qua
organization had no standing where its only expenditures to
contest federal estate and gift tax rates were made to educate
public and challenge legislation); Ctr. for Law & Educ., 396
F.3d at 1161–62 (organization lacked standing where alleged
unlawful government action increased lobbying costs only).
Instead, an organizational plaintiff must “allege impairment of
its ability to provide services, [not] only impairment of its
advocacy.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24
(D.C. Cir. 2015). FWW’s sole allegation that it has made
expenditures based on the challenged NPIS regime is tied to
PETA, fails to do—is in direct conflict with the organization’s
mission.
On the other hand, an organization can—and here, does—
show the necessary direct conflict but nonetheless expend resources
on matters we have said do not support standing, e.g., issue
advocacy. Otherwise, our two-pronged inquiry merges into one
prong.
8
educating its members and the public.6 In essence, FWW
seeks to sound an alarm regarding the dangers of NPIS
poultry. This is “pure issue-advocacy.” Ctr. for Law &
Educ., 396 F.3d at 1162.
Moreover, I believe our decision in PETA is
distinguishable. There, PETA made expenditures to fill a
void left by the USDA when, according to PETA, the USDA
unlawfully failed to apply the protections of the Animal
Welfare Act, 7 U.S.C. §§ 2131 et seq., to birds. Id. at 1091.
Its failure “meant, ipso facto, that the USDA was not creating
bird-related inspection reports that PETA could use to raise
public awareness.” Id. Thus, PETA was “required to expend
resources to obtain information about the conditions of
birds . . . , including through investigations, research and state
and local public records requests.” Id. at 1096. PETA
suffered a cognizable injury-in-fact because it spent resources
to remedy alleged governmental nonfeasance, which deprived
PETA of information to which it was allegedly entitled. But
for the USDA’s failure to act, “PETA would not need to
undertake” those efforts, id., and, on that basis, we concluded
that PETA’s expenditures constituted a cognizable injury. Id.
at 1097.
Granted, we have found organizational standing in
private-party litigation on the basis of expenditures made to
6
See Lovera Decl. ¶ 11–13, J.A. 70–71 (explaining that FWW
plans to “educat[e] the general public and its members that the
NPIS rules do not allow for the inspection of poultry product
prescribed by the [Poultry Products Inspection Act],” “educate
members of the public that just because a poultry product has a
USDA inspection legend does not mean that it is not adulterated”
and “increase the amount of resources that it spends encouraging its
members who wish to continue to eat chicken to avoid poultry from
such companies”).
9
educate the public. For example, in Spann v. Colonial
Village, Inc., the Fair Housing Council of Greater Washington
and the Metropolitan Washington Planning & Housing
Association challenged allegedly racially-motivated real
estate advertisements placed by realtors and advertisers,
claiming the ads violated the Fair Housing Act of 1968. 899
F.2d 24, 25–26 (D.C. Cir. 1990). We held that the
organizations had standing because they spent funds on
“endeavors designed to educate . . . black home buyers and
renters [and] the D.C. area real estate industry and the public
that racial preference in housing is indeed illegal.” Id. at 27.
But Spann also made clear that our circuit has drawn a bright-
line between private-party suits and “suits against the
government to compel the state to take, or desist from taking,
certain action.” Id. at 30. The latter “implicate most acutely
the separation of powers, which, the Supreme Court instructs,
is the ‘single basic idea’ on which the Article III standing
requirement is built.” Id. The former, by contrast, are
“traditional grist for the judicial mill.” Id. Thus, if an
organization’s standing to pursue litigation against the
government is premised only on injury flowing from
expenditures to educate the public, the suit amounts to no
more than an “assert[ion] [of] generalized grievances about
the conduct of Government,” id. at 27 (quotation marks
omitted), and organizational standing is lacking.
For the foregoing reasons, I concur in the judgment.
MILLETT, Circuit Judge, concurring: I join Judge
Wilkins’ opinion for the Court in full. I write separately only
to reiterate my continuing concerns about this Court’s
organizational-standing doctrine and the unwarranted
disparity it seems to have spawned between individuals’ and
organizations’ ability to bring suit. See People for the Ethical
Treatment of Animals v. United States Dep’t of Agriculture,
797 F.3d 1087, 1099–1106 (D.C. Cir. 2015) (Millett, J.,
dubitante). Because the majority opinion properly applies our
precedent to keep a bad jurisprudential situation from getting
worse, I concur. But I continue to believe that our
organizational standing doctrine should be revisited in an
appropriate case.