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Animal Legal Defense Fund; Regal Vegan, Inc.; Sarah Evans; Michelle v. United States Department of Agriculture; Tom Vilsack; Food Safety and

March 22, 2013

ANIMAL LEGAL DEFENSE FUND; REGAL VEGAN, INC.; SARAH EVANS; MICHELLE SCHURIG; CAROLINE LEE; DANIEL STAHLIE; FARM SANCTUARY; COMPASSION OVER KILLING; AND AMINAL PROTECTION AND RESCUE LEAGUE, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; TOM VILSACK; FOOD SAFETY AND INSPECTION SERVICE; AND ALFRED V. ALMANZA, DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

ORDER RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT [22] AND DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS [26]

I.INTRODUCTION

Pending before the Court are Plaintiffs' Motion for Summary Judgment and Defendants' Motion for Judgment on the Pleadings with respect to subject-matter jurisdiction. (ECF Nos. 22, 26.) The Court concludes that Defendants' denial of Plaintiffs' Petition is unreviewable under 5 U.S.C. § 701(a). Thus, for the reasons discussed below, Plaintiffs' Motion for Summary Judgment is DENIED AS MOOT and Defendants' Motion for Judgment on the Pleadings is GRANTED.*fn1

II.BACKGROUND

On November 28, 2007, several of the current Plaintiffs petitioned the United States Department of Agriculture ("USDA") and Food Safety and Inspection Service ("FSIS") to promulgate regulations condemning force-fed foie gras as an adulterated food product under the Poultry Products Inspection Act ("PPIA"), 21 U.S.C. §§ 451-- 472. (Compl. ¶ 3; Ex. A.) The FSIS, an agency of the USDA, denied their petition. (Id. ¶ 3; Ex. B.) The FSIS reasoned that force-fed foie gras was not adulterated or diseased, and that its continued availability in the poultry market was not in violation of the PPIA. (Id.)

The PPIA sets standards for the USDA to regulate the production and sale of poultry in order to protect consumers from adulterated poultry products. 21 U.S.C. § 452. It requires ante mortem and post mortem inspections of poultry products to ensure that they are safe for human consumption. 21 U.S.C. § 455. Under FSIS directives, poultry inspectors are instructed to deem wholesome any poultry livers with a uniform yellow color, resulting from excessive fat deposits. (Compl. ¶ 89.) Plaintiffs contend that this policy allows force-fed foie gras livers to escape condemnation because they have a uniform yellow color as result of fatty infiltration. (Id. ¶ 91.) And Plaintiffs suggest that the USDA is inconsistent: it condemns broiler chickens with certain disease conditions, but not force-fed foie gras exhibiting the same conditions. (Id. ¶ 93.)

Plaintiffs allege that the consumption of force-fed foie gras poses risks to human health because it contains insoluble protein fragments that can cause secondary amyloidosis, especially in persons who suffer from inflammatory diseases. (Id. ¶¶ 9--12.) They also claim that the proteins may encourage the development of other amyloid-associated disorders, including Alzheimer's disease or Type II diabetes. (Id. ¶ 13.) Plaintiffs admit these proteins are common to waterfowl generally, but contend that the proteins are more prevalent in foie gras. (Id. ¶ 14.) Plaintiffs also allege that harmful bacteria including E. coli have been found in force-fed foie gras. (Id. ¶ 6.)

Plaintiffs filed this lawsuit to challenge the legality of FSIS's denial, claiming the decision was arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(a). (Compl. ¶ 4.) Plaintiffs now move for summary judgment that FSIS's denial violated the APA. (ECF No. 22.) In response, Defendants moved for judgment on the pleadings that Plaintiffs lack standing, or in the alternative, for summary judgment that FSIS's denial was proper and within its discretion. (ECF No. 26.)

III.LEGAL STANDARD

A motion for judgment on the pleadings is "functionally identical" to a Rule 12(b) motion to dismiss; the only major difference is that a Rule 12(c) motion is properly brought "after the pleadings are closed and within such time as not to delay the trial." Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106--07 (C.D. Cal. 2008) (citing Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)). Thus, the allegations of the non-moving party are accepted as true, denials of these allegations by the moving party are assumed to be false, and all inferences reasonably drawn from those facts must be construed in favor of the responding party. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). But conclusory allegations and unwarranted inferences are insufficient to defeat a motion for judgment on the pleadings. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Judgment on the pleadings is appropriate when, even if all material facts in the pleading under attack are true, the moving party is entitled to judgment as a matter of law. Hal Roach Studios, 896 F.2d at 1550.

IV.DISCUSSION

Article III of the Constitution limits federal-court jurisdiction to cases and controversies. Thus, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court must dismiss the action. Fed. R. Civ. P. 12h(3); see Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (2011).

The PPIA does not create a private right of action for citizens, so a plaintiff suing for a PPIA violation must bring suit under the APA. The APA generally entitles an aggrieved plaintiff to judicial review of an adverse agency action. 5 U.S.C. § 702. But judicial review of an agency action is unavailable if (1) a statute precludes judicial review or (2) the agency action is "committed to agency discretion by law." 5 U.S.C. § 701(a).

In this case, though the PPIA does not allow for a private action, there is also no indication that the PPIA expressly precludes judicial review; so § 701(a)(1) does not apply here. And as for as for agency actions committed to agency discretion by law under § 701(a)(2), this does not apply to agency ...


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