Summary of a Recent
Judicial Development in
Food Safety

Standing and Jurisdictional Issues in
Humane Slaughter Act

Emilie H. Leibovitch
National AgLaw Center Graduate Assistant

In Levine v. Johanns, No. C 05-04764, 2006 US Dist. LEXIS 63667 (N.D. Cal. Sept. 6, 2006), the United States District Court for the Northern District of California addressed standing and jurisdictional issues in a lawsuit brought by various individual consumers and organizations over the unlawfulness of USDA policy regarding slaughter methods of poultry and exotic animals.

In 1958, Congress enacted the Human Methods of Slaughter Act (HMSA), which provided that "'cattle, calves, horses, mules, sheep, swine, and other livestock' must be slaughtered by humane methods." Levine, 2006 US Dist. LEXIS 63667 at *3. The 1978 HMSA repealed some of the 1958 HMSA provisions but retained others such as which methods of slaughter are considered humane and which species are covered by the statute. See id. *3-4. In 2005, USDA issued a notice in part noting the absence of a federal statute governing the humane slaughter of poultry. See id. at *4.

Dr. Levine and other individual consumers, the Human Society of the United States (HSUS), the East Bay Animal Advocates (EBAA), Equal Justice Center (EJC), the mission of the Western North Carolina Workers' Center (WNCWC), and poultry processing plant workers (Levine plaintiffs) filed suit claiming that the USDA notice was arbitrary and capricious because by stating that there was no federal statute governing the humane slaughter of poultry, the Notice disregarded the application of the 1958 HMSA humane slaughter requirements to "other livestock." See id. at *9.

American Bison and Reindeer, the Humane Farming Association (HFA) and other individuals (Bison plaintiffs) also filed suit claiming that USDA's interpretations of the 1958 HMSA violated that act and the APA because the interpretations "failed to apply humane slaughter requirements to 'other livestock,' specifically, bison, reindeer, elk, antelope, rabbit, and ostrich." Id. at *8. The Levine and Bison cases were consolidated and Defendant moved to dismiss on the grounds that plaintiffs did not have standing, that plaintiffs could not establish prudential standing, and that the court lacked jurisdiction under the APA. See id. at *9-10.

Standing and Jurisdiction Issues Concerning the Levine Plaintiffs' Claim

The court determined that the risk of contracting a food-borne illness was an injury-in-fact that provided the Levine plaintiffs standing. See id. at *16-31. The risk of contracting a food-borne illness from meat products was concrete "because the harm was separate from an interest in having the government abide by the law," and the fact that this risk was shared by other meat consumers and not simply the plaintiffs did not make the injury less concrete. Id. at *16.

As to the organizations' representational standing, the court stated that to have standing, besides having no members obliged to bring the action individually, the organizations must have at least one member that would have standing to bring the action himself or herself, and the interest in the lawsuit must be "germane to the organization's purpose." Id. at *34. Because EBAA's interest of preventing the cruel treatment of farm animals and HSUS's mission of protection of domestic and wild animals were not sufficient given the fact that their asserted interest in the lawsuit was the risk to consumers' health, the court dismissed their claims with leave to amend the complaint. See id.

The court then turned to the claims made by poultry plant workers and held that the physical harm the birds inflicted on them while trying to avoid being slaughtered and the emotional distress the workers suffered by seeing conscious birds suffer was enough to establish injury-in-fact. See id. at *32-33. Also, the court recognized EJC's and WNCWC's representational standing since their mission was the protection of good working conditions for low-wage workers, and their interest in the lawsuit was to reduce "the risk of physical and emotional injuries to workers in poultry plants." Id. at *39.

The court determined that it had jurisdiction to review the USDA Notice under APA § 706(2) because the Notice was a discrete and final agency action. See Id. at *52-61. The court stated the Notice was final because it "marked the consummation of the agency's decision making process" by specifically excluding poultry from the 1978 HMSA humane slaughter requirements and because it had legal consequences by specifically providing that poultry processors were under no legal obligation to slaughter poultry humanely. Id. at *58.

The court however ordered the worker plaintiffs, WNCWC and EJC, to show cause as to why their claims should not be dismissed without prejudice for improper venue, since all of the events giving them standing occurred in North Carolina and not in California. See id. at *65.

Standing and Jurisdiction Issues Regarding the Bison Plaintiffs' Claim

The court held that some of the Bison plaintiffs did not have standing and dismissed American Bison and Reindeer's claim with prejudice for lack of prudential standing to bring an action under the APA. See id. at *45. The court dismissed the claim because the private right of action under the APA is given to "persons," and animals have specifically been excluded from the definition of person. See id.

The rest of the Bison plaintiffs argued that the fact USDA failed to interpret the term "other livestock" was a failure to take a required discrete action and thus violated APA § 706(1). See id. at *46. Bison plaintiffs claimed that because USDA was required to interpret the term "other livestock" in a timely fashion and failed to do so, the court could compel the agency to act pursuant to APA § 706(1). See id. at *46-51. The court rejected both arguments, noting that USDA was never under a duty to interpret the phrase and that such interpretation was purely discretionary on the part of the agency. See id. at *48-51. Thus, the court dismissed the rest of the Bison plaintiffs' claim for lack of jurisdiction. See id. at *51.

The case was decided on September 6, 2006; this summary was posted Feb. 21, 2006.