United Food and Commercial Workers Union, Local No. 227 v. Department of Agriculture

The United States Department of Agriculture (USDA), through its Food Safety and Inspection Service (FSIS), is responsible for inspecting poultry products at the nation’s poultry processing establishments. In 2014, FSIS adopted the “New Poultry Inspection System” (NPIS). After considering medical evidence that faster line speeds harm workers by increasing their risk of injury, FSIS retained a line-speed limit of 140 birds per minute (bpm), rejecting a proposal to increase the maximum line speed to 175 bpm.

In 2018, FSIS changed course. After considering an industry request to lift all line-speed restrictions in NPIS plants, FSIS implemented a waiver program through which individual plants could apply for a waiver of the 2014 rule to allow the plant to operate at 175 bpm. FSIS has since granted waivers to several NPIS facilities, including 10 plants at which members of the United Food and Commercial Workers Union (UFCW) work.

In July 2020, Public Citizen filed a lawsuit against USDA on behalf of UFCW and five of its locals. The suit alleges that USDA violated the Administrative Procedure Act (APA) by adopting its waiver program without undertaking notice-and-comment rulemaking procedures, by failing to consider adequately the impact of worker safety or the agency’s prior views on the connection between line speeds and worker safety, and by improperly attempting to justify its waiver program as a way to experiment with new technologies. USDA filed a motion to dismiss the lawsuit, arguing that UFCW lacked standing for failure to allege that the line speed increases would harm workers and that worker safety claims fell outside the zone of interests of the statutory scheme.  In an opinion issued in August 2021, the court rejected that argument, held that UFCW had established standing, and denied USDA’s motion. The parties will now brief cross-motions for summary judgment.