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Case number 15-5037, Food and Water Watch Inc.

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at Elle Appellants vs. Thomas J. Vilsack in his official capacity as the U.S.

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Secretary of Agriculture at Elle.

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Mr. Corrigan for the appellants, Mr. Tenney for the appellees.

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Mr. Corrigan, good morning.

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Good morning.

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Good morning, Your Honors.

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May it please the Court.

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The issue before this court is whether plaintiffs have standing to pursue their claims, but I'd like to provide the court with a little context of the underlying dispute.

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Nearly 60 years ago, Congress passed the Poultry Products Inspection Act, a law that placed federal inspectors on poultry company slaughter lines to inspect each and every carcass, a requirement that Congress specifically designed to protect consumers from adulterated

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and unwholesome poultry.

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The government's challenged new poultry inspection system rules rewrite and roll back this requirement by pulling inspectors from slaughter lines and giving poultry company employees the unfettered ability to rework carcasses and hide fecal matter and other signs of adulteration

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while allowing line speeds to ramp up nearly four times faster so that government inspectors are tasked with inspecting 2.3 birds per second in literally the blink of an eye.

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Plaintiffs, Food and Water Watch.

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Is this program in effect now since there's no preliminary injunction?

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Is it in effect now?

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That is correct.

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The government has been moving forward on approving facilities for the new program.

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Do we have any information about how many facilities are now participating in the program?

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We have an estimate right now, although it's informal, that about 50, I believe, have moved forward or been accepted for this program.

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I'm not aware at this point where they are in the process, however.

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Have they started processing the food?

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Is the food being processed, pursuant to this program?

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Well, it should be remembered also that part of this rulemaking was based on pilot project of 20 facilities, and those facilities have continued in operation under the new rules and are producing poultry even today.

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Do we have any sense then of what the current percentage of poultry

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is this coming out that's produced through this program?

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No, and I think it's important for your honors to understand that we have what the government estimates will be the amount of poultry, and that's 99.9 percent of all domestic poultry will be produced by rules operating under this system.

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I'm trying to figure out what the, because there's a lot of talk about standing based on future risk, and I'm trying to figure out what the present

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risk is if this program is in effect?

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We haven't seen any number on that.

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No, we don't have any estimate of the present risk of poultry under these facilities, although we do know that there are facilities that are moving into doing this.

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The government hasn't challenged that, and frankly, the government has not challenged

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its own estimate that there's 99.9% of domestic poultry that will be produced by plants under the rules, except.

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How long does that process take?

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They estimate that about 12 plants will be adopted per month.

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And so if you have 219 facilities that are estimated that will be adopting this program, do the math, a matter of years before all facilities, but the smallest will switch over to the new system.

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Thank you.

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Let me ask about risk.

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And the risk that there will be, I guess, a higher incidence of poultry coming off the line that may have some sort of foodborne bacteria in it is one thing.

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That's separate and apart from the risk that that bacteria will actually cause an injury in a consumer.

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What have you alleged or what evidence have you placed before us that helps translate any increased incidence of bacteria in poultry into real harm to human health?

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Well, I think that the government alleges that these rules, and we contest this allegation that they contend, we contest this contention that actually their rules will increase public health.

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We have demonstrated, in fact, evidence suggesting that these rules will not increase public health.

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So the premise behind this entire rulemaking is that

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there will be increased or decreased public health.

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I also turn the court to the attention of Sierra Club and Louisiana Environmental Action Network case where the court announced that the standard was whether there were adverse local conditions

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that may harm public health in an environmental dispute.

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And so where you have 99.9% of all domestic poultry that will be produced by plants operating under this system, you have this adverse impact.

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And then the plaintiff's allegations of injury are not only this increased risk from the poultry plants, but also that they have to go spend

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their declarations that plaintiffs' members have provided that indicate that not only are they concerned about the increased risk, but also that they would go to great lengths and spend additional costs to avoid this injury, which is more than reasonable given the risks of harm from the product, from the rules, as well as the ubiquitous nature of this tainted product.

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Well, I think that that's not really answering my question.

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I'm sorry.

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If you look at how we looked at injury in public citizen, we said that the injury isn't the increased likelihood that there may be a tire low out.

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The injury is the increased likelihood of actual physical injury, property damage or death.

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So we have to look at whether the regulation at issue is going to cause property damage, physical injury, death.

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I haven't seen anything in your complaint that translates into any kind of concrete estimate or even guesstimate

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as to how this will translate into increased physical injury.

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Your Honor, talk about the evidence that we've brought forward that demonstrates this substantial increased risk of harm under the new rules.

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And I think it's important to remember kind of the context of the data that's before the court.

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The government put forward a pilot project.

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They described it akin to a drug trial.

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They took a group of plants, subjected them to a treatment like a drug trial.

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In this case, pulling government inspectors from the slaughter lines and allowing them to increase speeds and see what results.

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And some of the data from this analysis, a very small slice of this data, is in their 2011 report.

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But plaintiffs obtained on their own data showing that over the course of 10 years, a vast majority of plants, 14 out of 20 plants,

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had a higher rate of salmonella

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than when they were in the pilot than when they weren't in the pilot.

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This, along with the other evidence that plaintiffs have brought forward, shows that there's more than a hypothetical threat from these new rules.

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And that's the burden to demonstrate standing at this case, is whether there's sufficient... It's not, though.

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The burden is showing that there's a risk of injury, showing that there's more salmonella.

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I mean, what if

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50% of the chickens process have salmonella in them.

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And because of the new regime, 51% have salmonella in them.

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That doesn't really tell us that more people are going to get sick.

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I think that you have to look at this court's decision in mountain states, which is where the court based the evidence on the record to show that there was increased risk.

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Public citizen case is a very different case.

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Very different from the facts here and the court required more Statistical evidence given the fact that plaintiffs did not simpler petitioners in that case didn't simply assert that they would suffer greater harm because under the The standard that was enunciated by the agent that was adopted by the agency rather in that case there the standard was

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PSI or 25 percent below the placard level and plaintiffs alleged or petitioners alleged that they suffered injury because that was not as good as their own preferred alternative which was the tire and rim associate administration standard.

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So given that this evidence clearly would not be in the record the public citizen court required more statistical evidence but that doesn't mean necessarily that all cases need to have

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such statistical evidence.

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And if you look at mountain states, the court relied on the increased risk of harm based on the evidence that was in the record.

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And in this case, plaintiffs have brought forward this statistical evidence that 14 out of 20 plants had higher rates of salmonella, and the government has not even challenged this data.

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So this is more than the amount of evidence needed to demonstrate that the risk of harm is more than hypothetical in this case, and that this is just a different case than public citizen, where it was an allegation that the adopted standard wasn't as good as the one that the petitioners had hoped for.

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Public Citizen was a summary judgment case, and this is 12b6.

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And so what is your view of what showing must be made within the complaint to demonstrate the type of risk that Judge Wilkins is referring to?

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Yes, that's absolutely right, Your Honor.

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The test, because of undismissal, is whether there are plausible facts alleged to demonstrate injury.

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And in this case, it would bring the risk of adulterated poultry out of the realm of the hypothetical.

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And the Court can only... I think, if I'm... I don't mean to misspeak, but I think Judge Logan's looking for a comparator.

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What was the risk under the old program, the program that you think, the inspection scheme that you think shouldn't have been altered, and what happens here?

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Where is the relative measurement?

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Right, well, I think that the baseline is that under the old program, facilities were producing a certain amount of salmonella poultry.

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I don't have that statistical data off the top of my head, but those plants entered into the pilot project, which is supposed to mimic the rules, and a vast majority had higher rates of salmonella.

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They were roughly between, well, there was 8% versus 7.2% all plants.

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I'm sorry, so it was 7.2 for non-pilot and 8 for pilot?

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Yes, that is absolutely right.

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And plaintiffs brought forward that evidence, put that into the record, and the government doesn't challenge

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This is a good difference between this case and the public citizen case which was brought on summary judgment.

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In that case the defendants challenged the statistical evidence and the court looked very deeply at whether plaintiffs had brought forward sufficient allegations both given the statistical evidence that was presented as well as given the fact that it was on summary judgment.

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In this case the

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The court doesn't, or the government, does not even challenge the legal validity, the validity of this.

[00:13:28] Speaker 01:
But here's, I guess, what I'm trying to drill down into, is what I don't know is, is if a chicken carcass comes off of a line and it's positive for salmonella,

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Is it a one in a million chance that a consumer will actually get sick?

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Is it a one in a billion chance that a consumer will actually get sick because of the food handling and cooking, et cetera, that the consumer actually undertakes before they consume that chicken or turkey?

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Or is it a one in a hundred chance?

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I don't know.

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You haven't alleged it.

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You don't have any expert data.

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If it's a one in a billion chance, and you're telling me that even if I accept this true, that it's 8% versus 7.2%,

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How does that translate into a real appreciable risk of human harm, of physical injury?

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Right.

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And Your Honor, what I'm saying is that this detailed risk analysis that you would like is just simply not necessary under this court's precedence in order to obtain standard.

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In mountain states, for example.

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Our president and the Supreme Court's president says that you have to show actual injury.

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Absolutely, Your Honor.

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And we have showed them.

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And injury isn't just that there's a dirty chicken.

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Injury is that I got sick.

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Absolutely.

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And nobody can test that salmonella in poultry is a serious health problem.

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And nobody can test that plants had higher rates of salmonella when they entered this pilot.

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The salmonella in poultry might be a health problem for the chicken, although the chicken's already got a health problem because he's dead.

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But it's not, it's not, I mean, you're not getting my point, are you?

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I'm getting your point, Your Honor.

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I'm saying, I'm contesting that, in fact, you would need this sort of detailed statistical analysis.

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And again, turn the court's attention to mountain states, where the court-based

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its assessment that plaintiffs had standing based on the risks presented in the administrative record that there was a higher retention rate of fuel and therefore that there was a higher risk of

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forest fire and higher risk of lightning given lightning strikes that sort of analysis the court has never overturned and I also want to turn the court's attention to the the Bauer case because this is out of the Second Circuit and there the court found that there was a

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standing for the plaintiffs who had challenged the government's policy that allowed downed cattle into the food supply despite the risk of bovine spongiform and sapathy.

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In that case, it was the government's data that showed that there was an increased risk

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In this case, it's the government's data showing that the pilot plants had higher rates of salmonella that demonstrate that there's a sufficiently higher risk to bring it out of the realm of hypothetical at this stage in the case where all allegations must be taken as true.

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I also want to turn the court's attention to the easy inference that can be drawn from this case and the statutory violation

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of injury and that did not exist in the public citizen case.

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The lower court ignored any inference of harm that could be drawn from the alleged statutory violation.

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The defendants go to great lengths not to discuss

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plaintiff's claims, going so far as to misconstrue plaintiff's claims and say that plaintiffs are simply challenging the new rules for not being better than the former system.

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They simply have no argument that under 21 USC 455 C, Congress specifically provided that inspectors were to condemn, quote, all carcasses and parts found to be adulterated, unquote, and supervise the reprocessing of poultry that is salvageable.

[00:17:54] Speaker 01:
I don't see how that helps you with your standing argument, though.

[00:17:57] Speaker 06:
Because the test is whether there's a substantial increased risk of harm.

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In this case, Congress specifically indicated that there were risks of not having inspectors on slaughter lines doing these condemnation determinations.

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So at least there's an inference that can be raised, and this is akin to the Supreme Court's decision in Laidlaw, where the plaintiffs simply needed to demonstrate that they had standing based on the alleged statutory violation of the Clean Water Act permit.

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They didn't have to show, in fact, that there was a chance of environmental harm, like the defendant's head

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argued that they should have, and that decision was not overturned by the Supreme Court's decision in Clapper.

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In fact, it cited to that decision and simply distinguished it on its facts.

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I think this shows that there's a lesser burden for standing when plaintiffs have alleged a clear statutory violation.

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And the First Circuit and the recent Tite law, Karen versus Tite-Flack's decision, in fact, indicate as much, saying that it is easier to demonstrate standing.

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when linked to a statute or standard of conduct that allegedly has been or will soon be violated, in part because the legislature and the executive agencies, the branches tasked with evaluating the risk and developing safety standards, have already identified the risks as injurious.

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I think that you can't ignore the risks that Congress itself defined in setting out this procedure, and here are the government's rules

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pulling government inspectors off the lines shows at least there's a plausible inference of risk.

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But I should also say plaintiffs brought forward not only the statistical evidence of increased risk of harm, the 14 plants out of 20 that had higher salmonella rates, but also a plethora of other evidence, statistical and qualitative evidence, that shows in fact that there was an increased risk of injury.

[00:20:08] Speaker 01:
Again, your evidence shows at best an increased risk that we don't know how to quantify it.

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But some increased risk, if we take it and give you the benefit of every inference, that more chickens come off the line with salmonella.

[00:20:31] Speaker 01:
I still don't see where your complaint or any of your evidence translates that into an increased risk of actual injury to human beings, and more specifically to your clients.

[00:20:48] Speaker 06:
Right, and just to be clear, because I don't want to be

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seen as dodging the question.

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We do not have a statistical analysis like in public citizen that translated it down to the member of the increased risk.

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But I also want the court to remember where we are procedurally.

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This is a case where plaintiffs brought its case and brought a motion for a preliminary injunction.

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and the court's suesponte dismissed all of plaintiff's claims based on this motion simply because they had brought a preliminary injunction motion.

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This did not apply the right task for dismissing on standing.

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which is whether there are plausible inferences that can be raised.

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I think there are plausible inferences of injury given the fact that you have a program that Congress specifically designed to prevent consumers from having adulterated poultry that the government

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presented a program to try to eliminate these risks, that it's rolling back this program, that it's undisputed that their attempts to supposedly increase the public safety actually was a pilot program that resulted in higher risk of injury, and that these rules

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would create product or produce product that would produce 99% of all domestic poultry, a ubiquitous harm in the environment.

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This demonstrates sufficient allegations, when taken as true, that there is an increased risk, bringing it out of the realm of hypothetical, under Bauer,

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Certainly under mountain states, plaintiffs have met their burden at this stage of the case to demonstrate their standing.

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All right, if there are no more questions, we'll give you some time in reply.

[00:22:57] Speaker 03:
Thank you.

[00:22:58] Speaker 03:
Mr. Tenney?

[00:23:07] Speaker 05:
May it please the Court, I want to start with the Salmonella numbers, because that's where attention seems to be focused here.

[00:23:15] Speaker 05:
Plaintiffs point to a statement that 14 out of 20 plants, based on their analysis, had an increase.

[00:23:23] Speaker 05:
There was a question about how much the increase was, and that sort of underscores the nature of the statistic that they've picked out among all of the

[00:23:32] Speaker 05:
all of the studies that have been done that have – upon which they're premising their claim.

[00:23:38] Speaker 05:
They just sort of went plant by plant.

[00:23:39] Speaker 05:
They didn't do an analysis of any statistical significance.

[00:23:42] Speaker 05:
In one case, I think it was 3.5 percent under one regime and 3.6 percent under the other scheme.

[00:23:49] Speaker 05:
That counts just as much as if it was a 25-point increase.

[00:23:54] Speaker 05:
What they're challenging, though, is a rule that concluded that they've emphasized the part of the rule that said government inspectors won't be going carcass by carcass, taking the first cut at sorting them to make sure that they physically appear to be suitable for human consumption.

[00:24:15] Speaker 05:
What they're ignoring is what those inspectors are doing instead, which is doing other types of activities, including

[00:24:23] Speaker 04:
That's an awful lot like a merits argument to me.

[00:24:28] Speaker 04:
We have to at this point take all allegations of fact in the light most favorable to the plaintiffs, including their allegations about, you know, if there's a dispute about you don't like their statistics and they don't like yours, for now we credit them and any reasonable inferences that could be drawn from them, right?

[00:24:44] Speaker 04:
You don't dispute that's the standard because they have not appealed the PI.

[00:24:48] Speaker 05:
Well, if you look at it, I mean, just taking that.

[00:24:50] Speaker 04:
Is that the standard?

[00:24:51] Speaker 05:
I think that the district court, in the context of a standing dismissal, does have some ability to look at all the materials that are in the record on a 12b1 or equivalent motion.

[00:25:03] Speaker 04:
You can look at all the materials on the record, but it has to take all that evidence in the light most favorable to the plaintiff and all reasonable inferences that can be drawn from it.

[00:25:11] Speaker 04:
And so if it's your statistician versus their statistician, we're going to have to, at this point, assume, unless it's on the face of the complaint and the face of the evidence without further inquiry, that they're going to win that debate.

[00:25:26] Speaker 05:
Well, that might be true if they had a statistician.

[00:25:28] Speaker 05:
But if you look at their complaint.

[00:25:30] Speaker 04:
What court has held that you have to have a statistician at the 12b6 stage?

[00:25:35] Speaker 05:
I'm not saying they have to have a statistician.

[00:25:37] Speaker 05:
But if you look at the allegations of their complaint, if you look at the joint appendix starting at page 33, and you look at what they're actually alleging, I mean, first of all, they don't even have an allegation in the complaint, a bare allegation.

[00:25:48] Speaker 05:
I'm not saying this would be sufficient.

[00:25:49] Speaker 05:
But there's not even a bare allegation that there would be a substantial increase in risk.

[00:25:53] Speaker 05:
What they have is they say the government did this study, then they talk about what the government found, much of which is favorable to the government's position and unfavorable to their claim of standing.

[00:26:06] Speaker 05:
And then they walk through and they have specific critiques.

[00:26:09] Speaker 05:
And they say, we think we have this 14 out of 20 number that we came up with.

[00:26:14] Speaker 05:
We're not saying that that's wrong.

[00:26:15] Speaker 05:
We're not saying they're not going to come up with facts at trial to prove that that's true.

[00:26:18] Speaker 05:
We're just saying that on its face taken as true, it is true,

[00:26:22] Speaker 05:
isn't good enough, especially when you look at the other things which are alleged in the complaint, the documents that are referenced specifically in their own complaint.

[00:26:31] Speaker 04:
Can you add on the fact that you've got a GAO report that's got problems with your project?

[00:26:36] Speaker 04:
They've got declarations from people, poultry inspectors.

[00:26:40] Speaker 04:
and employees talking about risks that are created by this project.

[00:26:45] Speaker 04:
They might be completely wrong.

[00:26:46] Speaker 04:
I don't know if they're right or wrong.

[00:26:48] Speaker 04:
But we don't at this point get into a, they have this, you have this, they said this, I don't like this about your evidence.

[00:26:56] Speaker 04:
Don't we just have to say, isn't that enough?

[00:26:58] Speaker 04:
That seems far beyond what we ordinarily require from anybody in a complaint of the 12b6 stage.

[00:27:04] Speaker 05:
Well, ordinarily, I mean, again, this is a standing case.

[00:27:09] Speaker 05:
And this court's precedents have established that courts have discretion to look at the materials that are in the record.

[00:27:14] Speaker 05:
But also, even in a regular 12b6 context, what the plaintiffs have basically come forward saying is, the government has not adequately proved that this will be better for public safety.

[00:27:25] Speaker 05:
That's really, if you look at the allegations, if you start at page 33, which is where this really begins in their complaint, they try to poke holes in the government study.

[00:27:32] Speaker 05:
They say the government was arbitrary and capricious.

[00:27:34] Speaker 05:
They say the government hasn't, you know, that there are these problems.

[00:27:37] Speaker 04:
The very material... Of course, that's what an APA complaint always says, right?

[00:27:41] Speaker 04:
There's nothing wrong with that.

[00:27:42] Speaker 04:
The question is, for purposes of injury, have they alleged, and I'm looking at the whole record, I'm not just looking at the complaint, but have they alleged

[00:27:50] Speaker 04:
And between the combination of the complaint and the other materials that they have, have they alleged a substantial risk of injury?

[00:27:58] Speaker 05:
Right, and I can't, I read over their complaint and I read over their affidavits and I haven't found that allegation at all.

[00:28:07] Speaker 05:
And I certainly haven't found material, like a basis, because this is a prediction of a future injury.

[00:28:12] Speaker 05:
This is harder to establish than if they were saying there was a fact in the world.

[00:28:15] Speaker 04:
But isn't it also a present injury now?

[00:28:16] Speaker 04:
It's not really a future injury if this is happening right now.

[00:28:21] Speaker 04:
Well, there may not be up to 99% yet, but there's certainly... Were they wrong to say that poultry is being manufactured right now under your scheme?

[00:28:32] Speaker 05:
They're not wrong to say that.

[00:28:33] Speaker 04:
They are wrong about the 99%, which I can get to, but... Okay, but we've got a present risk as well as a future risk, and it's a present risk that's expected to increase.

[00:28:44] Speaker 04:
Maybe not to 99%, but it certainly, I assume you expect increase in people joining this new program.

[00:28:51] Speaker 05:
Would you expect more?

[00:28:52] Speaker 05:
We don't expect the risk to increase.

[00:28:54] Speaker 05:
We expect the risk to decrease.

[00:28:55] Speaker 05:
And that's what we're here arguing about.

[00:28:56] Speaker 04:
Well, it's not a decrease if people don't join it, right?

[00:28:58] Speaker 04:
If you think your program actually reduces the risk of injury to the public, then I'm not quite sure why you can say, but it's fine to keep going with the old program with whatever that risk of injury was.

[00:29:11] Speaker 04:
Don't you want people to join this because you think it reduces the risk of injury?

[00:29:14] Speaker 05:
They're not challenging the fact that we made it voluntary.

[00:29:17] Speaker 05:
One reason to make it voluntary is that it's possible that one of the reasons that the program works well is that the plants have to comply with it and the plants that have agreed to take this on are maybe better situated to do these tasks.

[00:29:32] Speaker 04:
But I just want to clarify one thing.

[00:29:33] Speaker 04:
Do you think that there will be

[00:29:35] Speaker 04:
Less risk of injury, if more plans come with this program?

[00:29:40] Speaker 05:
Yes.

[00:29:40] Speaker 04:
Do you believe this program decreases the risk of injury?

[00:29:43] Speaker 04:
Yes.

[00:29:43] Speaker 04:
So you want the more people, the merrier in this program?

[00:29:46] Speaker 04:
Yes.

[00:29:47] Speaker 04:
You're saying the old scheme will have a higher risk of injury, is your position?

[00:29:51] Speaker 05:
I mean, we would encourage – I mean, the agency made this available to plants.

[00:29:56] Speaker 05:
It recognizes that some plants, you know, might be situated in a way that they wouldn't want to take this on, but they think that having plants and supporting them in doing this will decrease the risk of injury, yes.

[00:30:06] Speaker 04:
So is your hope – is your hope, your prospect that a large percentage will join this program?

[00:30:13] Speaker 05:
I don't know that the agency has quantified – Really?

[00:30:16] Speaker 05:
I mean, they do want to make it available.

[00:30:17] Speaker 05:
They want plants to do it.

[00:30:18] Speaker 05:
I don't think they've said, we want to have all of them, or we want to have most of them.

[00:30:22] Speaker 05:
I'm not sure there's something in the record on that point.

[00:30:23] Speaker 04:
I guess I just don't understand why, if they think this decreases the risk to the public, they wouldn't want and expect people to come on.

[00:30:31] Speaker 05:
They do want there to be a good take-up rate.

[00:30:33] Speaker 05:
And I think, I just don't want it.

[00:30:34] Speaker 05:
What's a good take-up rate?

[00:30:36] Speaker 05:
I don't think they've expressed that.

[00:30:37] Speaker 05:
I don't want to, from the podium, try to opine on what the agency is saying.

[00:30:40] Speaker 05:
I can tell you what the agency has said.

[00:30:42] Speaker 05:
In the proposed rule, they proposed making it mandatory.

[00:30:44] Speaker 05:
That's where plaintiff is getting them.

[00:30:46] Speaker 05:
We know it's going to be 99%.

[00:30:47] Speaker 05:
In the final rule, they said, we expect that this will be beneficial for plants and that plants will want to do this.

[00:30:52] Speaker 05:
And we think that the plants that take it up will have

[00:30:56] Speaker 05:
you know, a decrease in the risk and that they'll want to do this.

[00:30:59] Speaker 05:
But there's uncertainty.

[00:31:01] Speaker 05:
We're not sure how many are going to want to do it.

[00:31:02] Speaker 05:
We're presenting a range of estimates.

[00:31:05] Speaker 05:
We're not saying that any of these is the most likely or the least likely.

[00:31:08] Speaker 05:
That goes to plaintiffs' claim that we know that it's going to be 99%.

[00:31:11] Speaker 05:
That's just not what the agency said.

[00:31:12] Speaker 04:
Can I just be clear on one thing?

[00:31:14] Speaker 04:
Is the uncertainty as to how many will come on, or is there uncertainty as to how much of a change in the risk of

[00:31:21] Speaker 04:
injury will come between the two, the old and the new program?

[00:31:24] Speaker 05:
Well what I was just talking about was the uncertainty about how many plants would come on.

[00:31:28] Speaker 05:
Obviously these are statistical estimates.

[00:31:30] Speaker 05:
There is uncertainty about the nature and the magnitude of the change in risk.

[00:31:36] Speaker 05:
But just to go back to the point that we were discussing earlier,

[00:31:39] Speaker 05:
The plaintiffs have tried to poke holes in the government's assertion that this is actually going to make things safer.

[00:31:46] Speaker 05:
That's what they're trying to do.

[00:31:48] Speaker 05:
And we think that on their face, their allegations don't suffice even to do that.

[00:31:54] Speaker 05:
But even if you give them that, they still haven't gotten all the way to showing that there is a substantial increase in the risk to consumers of eating contaminated poultry.

[00:32:04] Speaker 05:
If you look through their allegations, their allegations are all about the government study was inadequate,

[00:32:09] Speaker 05:
We've got, you know, and then you could look at their numbers, you know, they're basically trying to rest on these numbers that they've picked out and, you know, they're ignoring, they're looking at the, they're trying to look at the evidence that the government has put forward and picking out the few things that they think are the best for their case.

[00:32:25] Speaker 01:
What's your response to the citation of mountain states?

[00:32:31] Speaker 01:
And that the injury here is akin to the injury that we recognize as being sufficient in mountain states?

[00:32:38] Speaker 05:
I mean, in mountain states, I think what we were talking about was the – I mean, I understand if you'd be talking about the portion of mountain states that talks about that there's a risk that people are going to die because of what's happened.

[00:32:49] Speaker 05:
And we think that if they could establish a substantial increase in the likelihood that people would eat contaminated chicken and get sick, we're not disputing that that would be the kind of injury that would be recognized.

[00:33:00] Speaker 05:
And I don't think there's any dispute between the parties

[00:33:03] Speaker 05:
especially after public citizen, that the standard is that you have to show a substantial increase in the risk of injury in order to have standing.

[00:33:11] Speaker 05:
The dispute here is whether they've really put anything forward in their complaint or anywhere else that suffices to make that showing which this court emphasized needed to be stringent.

[00:33:21] Speaker 01:
This court said in public... Well, I think your friend on the other side said that

[00:33:27] Speaker 01:
that risk of injury is proven if we show increased risk of the presence of salmonella in chicken coming off the production model.

[00:33:38] Speaker 01:
That suffices to show risk and injury.

[00:33:41] Speaker 01:
We don't have to show that that translates into an increased risk that somebody will actually get sick.

[00:33:50] Speaker 01:
Do you agree with that proposition or not?

[00:33:52] Speaker 05:
I mean, I don't think I agree legally with that proposition.

[00:33:57] Speaker 05:
I think it's true that if you had a substantial enough increase in the prevalence of salmonella coming off of the line, then that would translate.

[00:34:08] Speaker 05:
I agree that you would have to then discount that for the fact that sometimes salmonella contaminates something and nothing happens to anybody.

[00:34:15] Speaker 05:
And we haven't even sort of gotten to that point where they would have

[00:34:19] Speaker 05:
I agree that it makes their showing even harder, and I agree that there's nothing in the record that tries to make that additional step of logic.

[00:34:27] Speaker 05:
The problem is, it's a little bit hard for me to stand here and say how you would assess it, because in our view, they haven't even shown, in the district court's view properly, they haven't even shown that there's any risk of increased salmonella at all.

[00:34:40] Speaker 05:
But I agree that that's an additional problem.

[00:34:42] Speaker 05:
I think I heard counsel say that they didn't have anything, and I think that's right.

[00:34:46] Speaker 04:
That would demonstrate that next step.

[00:34:49] Speaker 04:
I'm not very scientific, but if X percent of birds come off the line with salmonella in them, the chance that...

[00:34:59] Speaker 04:
What happens after the bird comes off the line?

[00:35:01] Speaker 04:
The chance of someone getting sick is static between the two programs.

[00:35:07] Speaker 04:
There isn't some change in how people cook, how they buy, where they buy.

[00:35:11] Speaker 04:
That's a static number.

[00:35:13] Speaker 04:
The risk of anyone contracting illness from salmonella-infected chicken

[00:35:22] Speaker 04:
isn't affected out in the real world once it comes off the line isn't affected by this rule.

[00:35:26] Speaker 04:
The only question is if people will cook it or they won't cook it right.

[00:35:30] Speaker 04:
The only thing, the question is you've got that static number but then if you start increasing the amount of salmonella coming off the line then necessarily

[00:35:38] Speaker 04:
this number increases.

[00:35:39] Speaker 04:
Some people will cook, some people won't.

[00:35:41] Speaker 04:
That's going to probably remain the same.

[00:35:43] Speaker 04:
And that's not what they're here to fight about.

[00:35:45] Speaker 04:
But they're saying, as soon as you start increasing the number of bad stuff coming off the line, then necessarily the increase of risk to human beings increases as well.

[00:35:55] Speaker 04:
Is that not my point?

[00:35:57] Speaker 05:
I mean, I think the logic of that is right.

[00:35:58] Speaker 05:
And if it was true that all you needed to show was a bare risk

[00:36:05] Speaker 05:
a bare increase in the risk of injury, then that might have some force here.

[00:36:10] Speaker 05:
The problem is that even if you have a static number, if you need to show a substantial increase in the risk of injury, for example, if you said, and this is, as you know, in our view, counterfactual, but if you said there's a 1% increase in the number of chickens with salmonella, and then you had this static number, and if the static number was every time a chicken comes off a salmonella, someone gets sick, that might be closer to being a substantial risk

[00:36:35] Speaker 05:
substantial increase in the risk of injury, if that static number is one in a million, that even if it has salmonella, only one in a million people get sick, then you wouldn't say that's a substantial increase in the risk of injury.

[00:36:47] Speaker 05:
So it's true that you need evidence on this point as well, and that is another shortcoming with their analysis.

[00:36:52] Speaker 04:
I agree, it has to certainly demonstrate substantiality.

[00:36:56] Speaker 04:
Do we factor into substantiality the consequences, the seriousness of the consequences?

[00:37:02] Speaker 04:
Imagine if

[00:37:04] Speaker 04:
If a chicken comes off the line with salmonella, and it's not cooked right and not handled right, there is virtual certainty of death.

[00:37:13] Speaker 04:
Just assuming.

[00:37:15] Speaker 04:
Just making this up.

[00:37:16] Speaker 04:
Virtual certainty of death.

[00:37:19] Speaker 04:
But there's only a very tiny amount that comes off the line like that.

[00:37:24] Speaker 04:
Is that a substantial risk?

[00:37:25] Speaker 04:
Because people are going to

[00:37:28] Speaker 04:
I'm pretty worried about that, right?

[00:37:30] Speaker 04:
Not many people are going to get it, but the five that do will die.

[00:37:33] Speaker 05:
Well, in answer to the beginning of your question, in mountain states, this court did take into account the severity of the risk in figuring out what's substantial.

[00:37:41] Speaker 05:
I don't think it's true that even a tiny, tiny

[00:37:44] Speaker 05:
increase in risk if the consequences are catastrophic would suffice, public citizen itself can attest to that.

[00:37:51] Speaker 04:
What we were talking about there was... That was summary judgment again, so I'm talking about at the 12th to 6th stage.

[00:37:55] Speaker 04:
If they allege, imagine the government had, not this government, some sinister government takes over and they decide we're going to, we know through this production process,

[00:38:07] Speaker 04:
that every other week one drop of cyanide falls into this and whoever of all the millions of people in this country needed that one person will certainly die.

[00:38:17] Speaker 04:
Nobody can challenge that.

[00:38:19] Speaker 04:
We don't care.

[00:38:20] Speaker 05:
I don't think the procedural posture of public citizen really affects this part of the analysis because the question there was at the end of the day what a plaintiff needs in order to have standing.

[00:38:30] Speaker 05:
Now you can debate and I'll hear

[00:38:34] Speaker 04:
If the government knows there's going to be death, but it's going to be one in a hundred million, but the new program will increase death, there's going to be one more death out of a hundred million, is that substantial or not?

[00:38:47] Speaker 04:
Because it's death, but it's still only one in a million or a hundred million.

[00:38:51] Speaker 05:
I mean, I don't think this court's precedent suggests that something that, like to any given individual, that the risk, I mean, another way of putting that is, is the risk to a given plaintiff is one in a hundred million that they're gonna suffer an injury.

[00:39:05] Speaker 05:
I don't, I don't.

[00:39:06] Speaker 04:
I mean, but it's almost like this Russian roulette, right?

[00:39:08] Speaker 04:
The government can have a program that they know is going to, and again, I'm not suggesting any merits here, but they know is going to

[00:39:15] Speaker 04:
severely harm or kill a small percentage of people, and you say no one can challenge that because it's not a substantial risk as to any given individual.

[00:39:25] Speaker 04:
Is that right?

[00:39:27] Speaker 05:
I mean, obviously, as you say, that's far from what we have here, and I think if there were such a government program, you know, there would be other mechanisms to try to ferret it out and eliminate it.

[00:39:37] Speaker 04:
Well, I'm not sure what those would be.

[00:39:38] Speaker 04:
So you're saying, I guess if there's other mechanisms, you're saying an APA lawsuit would not be one of those mechanisms.

[00:39:43] Speaker 05:
I think if an individual, ordinarily, individuals have to show likelihood of harm to them personally.

[00:39:50] Speaker 05:
And if you had a sufficiently slow and small harm, and you could dispute how small it would need to be, given the big consequences.

[00:39:59] Speaker 05:
But I understand the hypothetical to be deliberately selecting a number that's incredibly tiny.

[00:40:05] Speaker 05:
The Article 3 jurisprudence of this court and the Supreme Court suggests that a plaintiff just needs to come forward with more than that.

[00:40:12] Speaker 05:
Obviously, in this case, we don't need to go nearly that far because they haven't come forward with evidence of a substantial... This is not a program designed to kill people, obviously.

[00:40:24] Speaker 05:
This is a program designed to help people, and they haven't come forward with evidence to show that it's actually going to have the opposite effect.

[00:40:30] Speaker 05:
In public citizen itself, I would just like to note in response to the comment about the statutory allegation, public citizen discourse absolutely said we have to assume that they are right, that the statute requires more.

[00:40:42] Speaker 05:
That's on page 1296 of the second public citizen opinion.

[00:40:46] Speaker 05:
We have to assume that they are correct, that the statute requires a more stringent standard.

[00:40:52] Speaker 05:
So that's exactly the same situation that we have here.

[00:40:55] Speaker 05:
We think this court's precedent suggests that they're wrong about the statutory claim, but our submission here isn't really dependent on whether they're right or wrong, that the agency was arbitrary and capricious, whether they're right or wrong, that the statute requires something different from what the agency has done.

[00:41:10] Speaker 05:
Our submission here relates to the fact

[00:41:11] Speaker 05:
that their allegations, if you take all of them, particularly, I think it's fair and I think in 12b6 even and certainly in 12b1, you would also take those allegations in context and if you have a report, for example, they cite the report that says, you know, there's selection, you know, people have criticized us for saying there's selection bias in the study and then the next sentence says, however, we don't think that

[00:41:35] Speaker 05:
You know, because these are geographically dispersed and because they're all different types of plants, we don't think you could plausibly say that there is any geographic or plant selection bias in this study.

[00:41:46] Speaker 05:
And they cite the first sentence and they say you have to take that as true.

[00:41:49] Speaker 05:
I don't think even in the 12b6 context anyone would suggest that if somebody takes a quotation like that and then, but if you read the whole paragraph, it's clear that what the government was concluding was the opposite of what they're saying, that you have to ignore the rest of it.

[00:42:02] Speaker 05:
And the same with the Salmonella.

[00:42:03] Speaker 05:
They're saying, here, we've picked out some statistics, or they have another example with, they say, you know, under certain, you know, certain, there were certain problems that were heightened.

[00:42:12] Speaker 05:
And it turns out, if you look at the underlying materials, they were, they don't specify which those are, and there were more problems that got better.

[00:42:18] Speaker 04:
I guess what I'm really trying to think, so, you know, if you take a clause out of a sentence out of context, that's one thing, but they've got declarations and, I mean, I'm really struggling with where the line is between, I'm sorry, I said 12-by-6, because you're right, 12-by-1, where the line is between determining that they've alleged enough at this very preliminary stage to raise a plausible allegation of increased risk of injury without blending into

[00:42:47] Speaker 04:
the merits of the analysis of who really has the better argument.

[00:42:51] Speaker 04:
And I'm very much at seeing as to how deep we're supposed to go.

[00:42:54] Speaker 04:
And I don't think public citizens are guideposts there, because that was summary judgment.

[00:42:58] Speaker 04:
We're necessarily going further.

[00:43:00] Speaker 04:
So we can't go that far.

[00:43:01] Speaker 04:
So how far do we go at this stage?

[00:43:03] Speaker 05:
Well, I mean, I think there's a useful way to look at this, I think, is to think about

[00:43:08] Speaker 05:
There are two separate questions.

[00:43:11] Speaker 05:
One is sort of what, at the end of the day, they're going to need to show in order to have standing.

[00:43:15] Speaker 05:
And at that point, we think public citizen really is the guidepost.

[00:43:18] Speaker 05:
And the second question is, does the fact that this didn't go forward to summary judgment but instead was dismissed in an earlier state of litigation, how do we address that?

[00:43:27] Speaker 05:
And on that point, the second point, the question really is,

[00:43:31] Speaker 05:
is a question of, because in 12V1 as opposed to 12V6, district courts do have some more discretion to look at everything that's in the record.

[00:43:40] Speaker 05:
So the question really is a question.

[00:43:41] Speaker 04:
But what we're looking for is different than what we're looking for at summary judgment, correct?

[00:43:46] Speaker 04:
We're just looking for plausible allegations of a substantial risk.

[00:43:50] Speaker 05:
Well, I mean, I guess two ways of getting at sort of the same point.

[00:43:53] Speaker 05:
One is to say, if you take the actual statements in their complaint,

[00:43:58] Speaker 05:
you can assume that they're all true.

[00:43:59] Speaker 05:
They say the government study said this.

[00:44:03] Speaker 05:
There are 14 out of 20 plants that say that.

[00:44:06] Speaker 05:
We're not saying we're going to come forward with evidence on summary judgment and say that their math is wrong and they've added incorrectly or that the government study was misquoted or something like that.

[00:44:15] Speaker 05:
But the question is, if you look at the stuff that they've alleged in the context in which it was stated,

[00:44:23] Speaker 05:
And you look at those allegations, you take them on their face, you're not saying we're going to say there's a failure of proof that, you know, paragraph 149 of the complaint we deny and then we say that it's, you know, we disprove it with evidence.

[00:44:36] Speaker 05:
And even if you read their complaint that way, and starting at page 33, you can read through their allegations and see if you say, all right,

[00:44:43] Speaker 05:
All that stuff is true.

[00:44:45] Speaker 05:
I'm going to take it in the context in which the statements were made.

[00:44:48] Speaker 05:
I'm going to take it against the backdrop of the very studies that they're citing in the complaint, which are incorporated by reference in some sense into the complaint, and figure out whether that whole picture, not saying the government has this other stuff that we're bringing in saying that that's wrong, but if that whole picture, if you read it and you say, no, this isn't enough, even if they could establish all of these things, they wouldn't have standing.

[00:45:07] Speaker 05:
That would be one way to look at it.

[00:45:09] Speaker 05:
Another way to look at it, which is sort of similar, is to say, OK, well, what's the prejudice here?

[00:45:15] Speaker 05:
What happened was they filed comments to the rule.

[00:45:18] Speaker 05:
Then they filed a complaint.

[00:45:20] Speaker 05:
Then they sought a preliminary injunction where they would have to show irreparable harm in addition to showing standing.

[00:45:26] Speaker 05:
Then the government opposed the preliminary injunction on the ground that there was

[00:45:31] Speaker 05:
that they didn't have standing, so then they got an opportunity to respond to that.

[00:45:35] Speaker 05:
And so if their argument is, well, there's prejudice because there's this other stuff that we really need to get in the record, but we haven't done it yet.

[00:45:42] Speaker 05:
I mean, they certainly haven't told us what that is going to be.

[00:45:45] Speaker 05:
It's pretty clear from the complaint, from the face of the complaint, and from all of their submissions that what they're saying is the statistics or quasi-statistics, numbers picked out, that we've come forward with

[00:45:56] Speaker 05:
We think that's good enough to establish standard.

[00:45:59] Speaker 04:
Wait a minute, you're talking about another procedural injury, the oral presentation?

[00:46:02] Speaker 04:
No, no, no.

[00:46:03] Speaker 05:
No, I'm talking about basically if the district court had said, all right, I can't do this on motion to dismiss, I'm going forward to summary judgment, which is I gather what the plaintiffs want.

[00:46:15] Speaker 05:
then the district court would then say, OK, everybody give me your summary judgment submissions, and then I'll figure out if there's a genuine issue of material fact as to standing.

[00:46:24] Speaker 05:
I think that if I'm understanding them correctly, that's what they think is supposed to happen.

[00:46:28] Speaker 05:
And so in the 12b1 context, sometimes district courts can sort of say, all right, I'm looking at the evidence and the record.

[00:46:36] Speaker 05:
And then if they had a case here and they were saying,

[00:46:39] Speaker 05:
Look, there are these allegations in our complaint, but we haven't had a chance to prove them yet with evidence.

[00:46:43] Speaker 05:
And so it's unfair to me to say, OK, I'm just looking at the whole record and saying you don't have standing.

[00:46:48] Speaker 05:
Because I've got all this stuff that I haven't had a chance to put in.

[00:46:50] Speaker 05:
I'm talking about the procedure of the litigation, not the procedure of the administrative proceedings.

[00:46:55] Speaker 05:
That's just not the claim that they brought here, that their complaint doesn't say, and we will prove at trial with evidence this or that.

[00:47:03] Speaker 04:
Who filed the motion here?

[00:47:05] Speaker 05:
The motion for preliminary injunction?

[00:47:07] Speaker 04:
Yes, but then the, and then did you guys file a motion to dismiss?

[00:47:11] Speaker 04:
No.

[00:47:11] Speaker 04:
Or was it just all done on the PI?

[00:47:12] Speaker 04:
Okay.

[00:47:13] Speaker 05:
No, the district court concluded based on looking at the record.

[00:47:16] Speaker 04:
But then the district court, I assume you concede, aired when it applied that preliminary injunction standard across the board and then dismissed the case rather than just deny the preliminary injunction, dismissed all the claims including those for which it was not seeking a preliminary injunction based on the failure to meet the preliminary injunction standing standard.

[00:47:35] Speaker 05:
Well, I mean, that's not the way that we would have put it.

[00:47:37] Speaker 05:
But we don't think that what the district court did was wrong.

[00:47:40] Speaker 05:
Because what the district court looked at, basically, what the district court had before it is a preliminary injunction motion and a complaint.

[00:47:47] Speaker 05:
And they said, I've looked at all of this, all the party submissions in which they've disputed standing and the merits.

[00:47:53] Speaker 05:
And I've looked at the allegations of the complaint.

[00:47:56] Speaker 05:
I've looked at the materials put forward in support of the preliminary injunction.

[00:47:59] Speaker 05:
I don't think they have standing.

[00:48:00] Speaker 05:
OK, so at least you can deny the preliminary injunction on that ground.

[00:48:04] Speaker 05:
And the district court said, not only do I think they don't have a likelihood of success in establishing standing, which would be enough for the preliminary injunction, it's clear from the record that's before me now they're never going to be able to establish that they have standing.

[00:48:18] Speaker 05:
And so in order to say that let's have it.

[00:48:20] Speaker 04:
But she has to say that it's not plausible.

[00:48:23] Speaker 04:
And I didn't see her applying that standard.

[00:48:26] Speaker 05:
Well, I mean, once you're looking at the record evidence, and again, the delta between the evidence and the record and the allegations of the complaint, there isn't that much difference.

[00:48:37] Speaker 05:
They've got their declaration.

[00:48:38] Speaker 05:
She took account of their declarations.

[00:48:40] Speaker 05:
But if you look at what they're saying in the complaint, basically they're saying, if you look at all of these studies that the government did and our critiques of them, we think that that adds up to enough for standing.

[00:48:49] Speaker 05:
And so the two ways I think that they could prevail in this court would either be to say, no, that's wrong.

[00:48:55] Speaker 05:
We think that if you look at all of that stuff, there is enough for standing.

[00:48:58] Speaker 05:
That would just be forgetting the procedural posture, the merits question.

[00:49:02] Speaker 05:
And we think that that

[00:49:05] Speaker 05:
you know, what they put in so far just isn't good enough for standing, and that's what the district court found.

[00:49:09] Speaker 05:
And you can't find a procedural error with that.

[00:49:12] Speaker 05:
And for that, you can look at public citizen, and you can look at the standard, and that's just on the sort of substance of the matter.

[00:49:18] Speaker 05:
Or they could come in and say, well, no, the problem is that it was unfair, because at this preliminary stage, we didn't get a chance to establish these other things.

[00:49:27] Speaker 05:
I mean, I'm not sure why one would withhold evidence of standing or of harm at a preliminary injunction stage, but if they thought that they had done that and they had been prejudiced by the district courts,

[00:49:38] Speaker 05:
conclusion that the litigation could be wrapped up at this stage, then they could come to this court and say, no, no, no.

[00:49:46] Speaker 05:
We're not just relying on the government studies.

[00:49:48] Speaker 05:
We're not just relying on our comments to the rule that we already put in.

[00:49:51] Speaker 05:
We're not just relying on the materials that we submitted in support of the preliminary injunction.

[00:49:54] Speaker 05:
The district court should have known that in addition, we had all of this other stuff that would be probative of the standing question that's before this court.

[00:50:02] Speaker 05:
They certainly haven't mentioned what

[00:50:05] Speaker 05:
what that would be in any way that would suggest that it would change the outcome here.

[00:50:08] Speaker 01:
I suppose the government's position is that if we can affirm on whatever grounds we find appropriate, if it's consistent with the lower court's judgment, and then if we were to find that the allegations don't meet the 12b1 standard, then we should defer.

[00:50:30] Speaker 05:
Right.

[00:50:32] Speaker 05:
I mean, we think that's one basis on which this court could affirm.

[00:50:35] Speaker 05:
We think that that would be correct.

[00:50:41] Speaker 03:
All right.

[00:50:42] Speaker 03:
Thank you.

[00:50:44] Speaker 03:
Mr. Corgan, why don't you take two minutes?

[00:50:51] Speaker 04:
Can you start by answering where he left off?

[00:50:53] Speaker 04:
Is there anything more you would show?

[00:50:55] Speaker 04:
If we could go back and go to summary.

[00:50:58] Speaker 04:
You had plausible allegations, but we didn't think you had enough to meet the public citizen test.

[00:51:05] Speaker 04:
Is there any point to sending it back?

[00:51:07] Speaker 06:
Well, two points, Your Honor.

[00:51:10] Speaker 06:
First of all, if I could just take a step back and just say, I didn't hear once the government refute plaintiff's evidence that 14 out of 20 plants had higher salmonella rates when they were part of this pilot than when they weren't.

[00:51:24] Speaker 06:
They seemed to throw up their arms and say,

[00:51:26] Speaker 06:
anecdotal or it's not good enough, but they don't say why.

[00:51:31] Speaker 06:
They don't say what's the problem with the evidence.

[00:51:34] Speaker 06:
It's uncontroverted evidence that certainly at this stage, but arguably even on a summary judgment standard,

[00:51:43] Speaker 06:
would be enough to demonstrate injury.

[00:51:46] Speaker 06:
If this was brought at summary judgment, if we brought a motion for summary judgment, we had brought forward this evidence and said 14 out of 20, this was not data that was the government's, I mean it was government's data, they did not put it into any of their reports.

[00:51:59] Speaker 06:
When we brought this forward to them, they did not respond to it in the response to comments.

[00:52:08] Speaker 06:
If we had brought forward this evidence and said this is enough for summary judgment,

[00:52:11] Speaker 06:
The other side would say, no, it's not.

[00:52:15] Speaker 06:
And you would say, you haven't even brought forward a tribal issue of fact to get past summary judgment.

[00:52:20] Speaker 06:
No less met your burden to demonstrate that plaintiffs hadn't met their burden to demonstrate standing.

[00:52:28] Speaker 06:
So they haven't.

[00:52:30] Speaker 06:
Even on a summer judgment standard, the defendants have not demonstrated why plaintiffs have not met their burden to demonstrate standing.

[00:52:42] Speaker 06:
No, Your Honor.

[00:52:45] Speaker 06:
First of all, there would be an administrative record produced, presumed.

[00:52:49] Speaker 06:
And there is evidence that we could hope to rely on in the administrative record.

[00:52:55] Speaker 06:
And a good example of what we expect will be in the administrative record is based on the government's assessment of benefits of this rule.

[00:53:06] Speaker 06:
Government assesses that there's going to be great benefits of this rule based on their risk assessment, and they say, well by pulling inspectors from the slaughter lines, we're going to have them do a whole bunch of unscheduled inspection tasks that will really protect public health.

[00:53:21] Speaker 06:
That is the presumption of the risk assessment.

[00:53:25] Speaker 06:
But in their analysis, they never presented

[00:53:29] Speaker 06:
the rates of unscheduled inspection tasks.

[00:53:31] Speaker 06:
They don't put it forward in their 2011 reports.

[00:53:35] Speaker 06:
Presumably it's there.

[00:53:36] Speaker 06:
They have the ability to determine when they did unscheduled inspection tasks.

[00:53:42] Speaker 06:
They just didn't analyze it as part of their 2011 report.

[00:53:47] Speaker 06:
We expect the administrative record would seriously undermine their analysis of benefits.

[00:53:54] Speaker 06:
And this is the sort of evidence that we could bring forward on summary judgment.

[00:53:59] Speaker 01:
In your complaint, you talk about the human health risk of salmonella and how many people get sick from it per year and how many people die from it per year, etc.

[00:54:11] Speaker 01:
And you cite to join appendix page 251.

[00:54:15] Speaker 01:
I've got that page up and looking at it, it doesn't distinguish between salmonella caused by poultry or caused by broccoli or peanuts or any other sort of food product from which you can contract salmonella.

[00:54:33] Speaker 01:
Am I wrong about that?

[00:54:35] Speaker 06:
That particular page, I believe, was just overall reports on incidences of salmonella.

[00:54:44] Speaker 01:
Did you put anything in the record that showed what the human health risk of salmonella is from chicken?

[00:54:52] Speaker 01:
How many people get salmonella from chicken?

[00:54:54] Speaker 06:
There's evidence in the record about the risks from Salmonella.

[00:54:59] Speaker 06:
In fact, the government could have done its own risk assessment without demonstrating.

[00:55:04] Speaker 01:
I'm asking what you put in the record in your complaint about chicken in Salmonella.

[00:55:10] Speaker 06:
I don't have that on the top of my head.

[00:55:12] Speaker 06:
I don't want to at this point.

[00:55:15] Speaker 06:
I know there are a million or so people generally in the U.S.

[00:55:20] Speaker 06:
population that suffer from salmonella.

[00:55:23] Speaker 06:
I believe that about 14, again, I don't want to speak out of turn.

[00:55:29] Speaker 06:
It's not jumping to the top of my head.

[00:55:31] Speaker 06:
There is evidence in the record the government could not have done its own assessment of the benefits of its rulemaking, which we challenge, without defining the risks

[00:55:43] Speaker 06:
of Salmonella.

[00:55:45] Speaker 01:
But here's my point, sir, is that you've got the burden to establish stand.

[00:55:50] Speaker 01:
Okay, we're talking here about poultry and you're talking about increased risk of Salmonella, other bacteria and poultry.

[00:56:00] Speaker 01:
But I haven't seen in your complaint and you can't tell me standing here today.

[00:56:05] Speaker 01:
how many people just in general get salmonella from poultry.

[00:56:11] Speaker 01:
You got some data in general how many people in the US get sick every year or die every year from salmonella.

[00:56:24] Speaker 01:
But that isn't even zeroed in on salmonella from poultry contamination, as opposed to other contamination.

[00:56:33] Speaker 06:
Right.

[00:56:33] Speaker 06:
Judge Wilkins, I understand your point.

[00:56:35] Speaker 06:
But as Judge Millett pointed out, it's going to be static.

[00:56:39] Speaker 06:
The question for this test is not whether the plaintiff's attorney can, off the top of his head, recall what the injury of the- I'm not asking you off the top of your head, sir.

[00:56:49] Speaker 01:
I'm asking what is in your complaint.

[00:56:51] Speaker 01:
Right.

[00:56:52] Speaker 01:
Right.

[00:56:53] Speaker 01:
and it's static as one a year from chicken and the other 99 cases are from broccoli, then that's relevant.

[00:57:04] Speaker 01:
I think.

[00:57:05] Speaker 01:
You don't think that's relevant?

[00:57:06] Speaker 06:
I think that it is relevant if the court were to require a detailed statistical analysis in terms of the increased risk, but in fact that's not needed in this case because what plaintiffs have alleged is that

[00:57:24] Speaker 06:
The rules will increase this risk.

[00:57:27] Speaker 06:
It could be one in a billion.

[00:57:29] Speaker 06:
It could be one in a million.

[00:57:30] Speaker 06:
And these rules increase that risk.

[00:57:35] Speaker 06:
And as Judge Mollett pointed out in mountain states, when there's a severe injury,

[00:57:39] Speaker 06:
all the court is required is a modest increment of increased risk.

[00:57:45] Speaker 06:
Public citizens certainly required more evidence of injury, but there the plaintiffs had contended their injuries were from the government's

[00:57:55] Speaker 06:
failure to adopt as good of a standard as the plaintiffs had hoped, petitioners had hoped for, not whether it was worse than status quo.

[00:58:04] Speaker 06:
And the court, because of the very specific nature of the risk, required a detailed statistical analysis.

[00:58:11] Speaker 01:
It simply is not needed in this case.

[00:58:12] Speaker 01:
But haven't we said very recently in Osborne case and also in other administrative cases,

[00:58:22] Speaker 01:
We're not even just administrative cases.

[00:58:24] Speaker 01:
That when we look at what we have to treat as true for the purposes of pleading, it's facts.

[00:58:34] Speaker 01:
Things that are susceptible of determining whether it's true or false.

[00:58:38] Speaker 01:
Demonstrable evidence.

[00:58:39] Speaker 01:
Not risks.

[00:58:41] Speaker 01:
That when you make allegations as to risk, we don't have to accept those as true.

[00:58:49] Speaker 06:
Right.

[00:58:49] Speaker 01:
And our position, Your Honor... And you're asking us to assume that all of your allegations as to risk are true, right?

[00:58:56] Speaker 06:
No, Your Honor.

[00:58:57] Speaker 06:
We have brought forward demonstrable evidence.

[00:59:00] Speaker 06:
14 out of 20 plants had higher salmonella rates when they were part of the pilot project than when they weren't.

[00:59:08] Speaker 06:
This is a present argument.

[00:59:09] Speaker 06:
How much higher?

[00:59:10] Speaker 06:
like the government doesn't admit that it's too low they have no response to this data and that's they have it's 7.2 versus 8.8 the government doesn't even say oh that's too small they did not even respond to this data point when it was presented to them in

[00:59:30] Speaker 06:
in the comment period.

[00:59:32] Speaker 06:
They have no answer.

[00:59:34] Speaker 06:
They say it's just anecdotal.

[00:59:36] Speaker 06:
I think the government's position essentially is if the data isn't on USDA letterhead or doesn't support why this rule is great, then the court should just ignore it.

[00:59:45] Speaker 06:
And certainly the lower court did precisely that.

[00:59:47] Speaker 06:
It weighed the evidence before it and completely discounted plaintiff's facts as true without even assessing why that this evidence, this demonstrable evidence,

[00:59:59] Speaker 06:
doesn't show a substantial increase risk of harm.

[01:00:02] Speaker 06:
They just have no answer to this besides waving their hands and saying that it's not good enough.

[01:00:09] Speaker 06:
I'd like to also just talk a little bit about the context, because I think that might help, Your Honor, in terms of assessing the overall risk.

[01:00:19] Speaker 03:
Try to do it in a minute, because we're way over our time.

[01:00:22] Speaker 06:
Sorry, Your Honor.

[01:00:24] Speaker 06:
Let me make two points.

[01:00:27] Speaker 06:
The first is to just present this evidence in context, because it's not simply that plaintiffs brought forward this increased risk based on their, by the

[01:00:39] Speaker 06:
the increased salmonella rates of 14 plants that had higher rates of salmonella compared to those, and the fact that the government doesn't respond to this.

[01:00:47] Speaker 06:
But also, plaintiffs brought forward a GAO study in 2001 that showed that there was danger of self-selection bias in this experiment, because only volunteer facilities participated.

[01:00:58] Speaker 06:
So you had the potentially best performing plants put on display, and they still had

[01:01:04] Speaker 06:
increased risk of salmonella.

[01:01:06] Speaker 06:
And this is like the Second Circuit's court in Bauer, where the court found that there was standing because of a GAO study that challenged the effectiveness of the government's ability to screen tainted product.

[01:01:20] Speaker 06:
Same here.

[01:01:21] Speaker 06:
They might say that their rules will be great because they'll be able to move inspectors off the slaughter lines and have them do other things, but their own data shows that this is absolutely not true, and even amongst the potentially best performing plants.

[01:01:39] Speaker 06:
I just want to wrap up by just pointing to the government.

[01:01:42] Speaker 06:
The plaintiffs have alleged both procedural injury as well as an organizational basis for standing.

[01:01:49] Speaker 06:
The government does not challenge that the lower court erred in dismissing plaintiffs' claims for lack of standing based on those bases for standing.

[01:02:00] Speaker 06:
The only thing they can tend is whether, in fact, there's substantial enough risk of the underlying harm.

[01:02:08] Speaker 06:
So plaintiffs simply ask that the court determine those bases of standing based on the briefs before it.

[01:02:16] Speaker 06:
There are no further questions.

[01:02:18] Speaker 06:
Thank you.