A Summary of a Recent
Judicial Development in
Food Safety

U.S. Court of Appeals, District of Columbia
Circuit Upholds USDA's Revised
Meat Inspection Proposals

Harrison M. Pittman
Staff Attorney

In an action brought under the Poultry Products Inspection Act ("PPIA"), 21 U.S.C. Sec. 455, and the Federal Meat Inspection Act ("FMIA"), 21 U.S.C. Sec. 604, the United States Court of Appeals for the District of Columbia Circuit upheld a district court decision ruling that the USDA's implementation of a modified carcass inspection model did not violate either the PPIA or the FMIA. American Fed'n of Gov't Employees v. Veneman, 284 F.3d 125 (2002) ("AFGE II"). The action was brought by federal meat and poultry inspectors to enjoin the Secretary of Agriculture from "authorizing anything other than carcass-by-carcass postmortem inspection by federal inspectors." Id. The inspectors were joined by their union and a public interest organization. Id.

The case was before the D.C. Circuit after proceedings on remand from American Fed'n of Gov't Employees v. Glickman, 215 F.3d 7 (D.C. Cir. 2000) ("AFGE I"). Id. at 126. The inspection method challenged in AFGE I gave industry personnel, not federal inspectors, the responsibility of separating normal carcasses and parts from abnormal carcasses and parts. Id. at 127. Under this particular method of inspection, federal meat inspectors performed their duties either as "oversight" inspectors or "verification" inspectors. Id. "Oversight" inspectors would observe the industry personnel as they removed unacceptable products from production. Id. "Verification" inspectors randomly tested carcass samples to determine if the production facility was in compliance with the proper performance standards. Id. (citing AFGE I, 215 F.3d at 10).

The district court granted summary judgment in favor of the USDA, ruling that the PPIA and the FMIA permitted federal inspectors to carry out their duties in this manner. Id. The D.C. Circuit disagreed with the district court, finding that the model program in question, as implemented, violated the FMIA and the PPIA because it required inspection of "people and not carcasses." Id. at 127-128 (citing AFGE I, 215 F.3d at 11). The Court of Appeals reversed and remanded the district court decision. Id. at 126-127. While the matter was on remand to the district court, the USDA modified its carcass inspection model that was at issue in AFGE I. Id. at 126. This modified carcass inspection model was at issue in AFGE II. Id.

The modified plan requires poultry establishments to position "carcass inspectors" at the end of each slaughter line. Id. at 128. These inspectors are to "examine each poultry carcass for adulteration after the carcasses are eviscerated, sorted, washed, and trimmed by establishment employees but before the carcasses are put into the chiller." Id. The modified plan also requires "verification inspectors" to supervise the inspection efforts of the poultry establishment. Id.

The modified plan requires hog plants to have federal inspectors located "where the carcass and head are separated, where the carcass and viscera are separated, and at the pre-wash verification location." Id. These particular inspectors examine the carcass, head, and viscera of each hog. Id. The plan also requires another set of inspectors to "verify the effectiveness of the plant's process control systems." Id.

Acknowledging that the modified carcass inspection method remedied the previous deficiency of "inspecting people and not carcasses," the issue before the Court of Appeals in AFGE II was whether the modified plan allowed federal inspectors to "properly perform 'inspections'" as required by the PPIA and the FMIA. Id. at 129. In other words, both the FMIA and the PPIA state "what must be inspected and by whom, but neither statute tells the reader exactly what an 'inspection' entails." Id. (citing AFGE I, 215 F.3d at 10-11). Thus, the central question in AFGE II involved determining what the meaning of "inspection" was pursuant to the PPIA and the FMIA. The district court relied on Chevron, U.S.A. Inc. v. Natural Res. Defense Council, 467 U.S. 837 (1984), to determine that the USDA's modified program was a reasonable interpretation of the PPIA and the FMIA requirements for "inspection," and therefore not in violation of either statute. Id. at 128-129.

The Court of Appeals expressly refused to apply Chevron deference to the USDA's modified inspection methods. Id. at 129. The court stated that Chevron deference applied only when "'Congress delegated authority to the agency generally to make rules carry the force of law, and . . . the agency interpretation claiming deference was promulgated in the exercise of that authority.'" Id. (quoting United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)). The court highlighted the fact that the modified plan was created and implemented without any type of formal rule-making process. Id. The court specifically noted that the only "comprehensive written description of the modification" was put forth in a declaration by the project manager of the FSIS inspection program. Id. As such, the written description of the modified program provided by the FSIS project manager did not derive from any congressionally delegated rule-making authority. Id.

The court also noted that the USDA did not create the modified program with a "'lawmaking pretense in mind.'" Id. (quoting Mead, 533 U.S. at 233). The modified program was to be temporary in nature, with formal rule-making procedures to take place some time in the future. Id. The court reasoned that because the USDA had no intention to act "with the force of law" when it modified the inspection program, the modified program had "no more status than opinion letters, policy statements, agency manuals, and enforcement guidelines," and was therefore not entitled to Chevron deference. Id. (citing Christensen v. Harris County, 529 U.S. 576, 587 (2000) and Mead, 533 U.S. at 234). Ultimately, the court reasoned that the USDA's judgment about the proper scope of inspection required by the PPIA and the FMIA was derived from "'a body of experience and informed judgment to which we may properly resort for guidance." Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134 (1944)).

nother argument raised by the plaintiffs was that the modified plan violated specific PPIA language requiring federal inspectors to undertake a "'post mortem inspection of the carcass of each bird processed,'" and that the inspectors condemn all adulterated carcasses and parts. Id. (quoting 21 U.S.C. Sec. 455(b), (c)). The plaintiffs questioned how they could effectively condemn adulterated "parts" if they were only allowed to inspect poultry "carcasses." Id. The court disagreed with the plaintiffs, reasoning that it was unnecessary to inspect "parts" for adulteration since all generalized poultry diseases could be discovered by examination of the carcass alone. Id. The court added that the only disease undiscoverable by carcass examination alone, avian visceral leukosis, would be discovered when the federal inspector examines viscera "from the initial 300 birds slaughtered from each flock," as required by the modified plan. Id.

The plaintiffs' final argument was that the line speeds at hog and poultry facilities moved too rapidly for federal inspectors to conduct an effective examination of each carcass. Id. The court disagreed with this contention, reasoning that because the modified plan required industry personnel to separate adulterated carcasses from the production line prior to the carcasses reaching the inspectors, a smaller number of adulterated carcasses would be presented for inspection to federal inspectors. Id. The court added, "Neither the PPIA or the FMIA prohibits establishment employees from paring down the overall number of carcasses by removing some adulterated carcasses before they get to FSIS inspectors." Id.

This case summary was prepared May, 2002