UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER FED GOVT EMPL

v.

GLICKMAN, DANIEL R.


99-5320a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: The Federal Meat Inspection  Act ("FMIA"), 21
U.S.C. s 604, and the Poultry Products  Inspection Act ("PPIA"), 21
U.S.C. s 455, require inspectors  appointed by the Department of
Agriculture ("USDA") to  perform a "post-mortem inspection" of the
carcasses and  parts of all livestock and birds processed for human
consump- tion. The question in this appeal from the judgment of the 
district court is whether the statutes permit federal inspec- tors to
step back from the processing lines and perform their  inspection
duties by overseeing inspections conducted by  plant employees.


I


Inspectors from the USDA's Food Safety and Inspection  Service ("FSIS")
generally conduct post-mortem inspections  while stationed at fixed
points along the slaughter processing  line. Using organoleptic
methods, that is, relying on sight,  touch and smell, the inspectors
examine the head, viscera, and  exterior of each carcass for signs of
adulteration, such as  tumors, inflammation, parasites, and other
diseases. See 9  C.F.R. pts. 310-11, ss 381.76-94. If the inspector
detects no  signs of adulteration, the carcass is passed and marked
with  the USDA legend. See 9 C.F.R. ss 310.8, 381.79. Under the  FMIA,
if the inspector finds any lesion or other condition  "that might
render the meat or any part unfit for food  purposes, or otherwise
adulterated," the carcass (and its  parts) must be retained for
veterinary disposition. 9 C.F.R.  s 310.3. A carcass or part found to
"be unsound, unhealthful,  unwholesome, or otherwise adulterated" is
condemned and  marked as such. Id. s 310.5. Similar procedures apply
to  inspections under the PPIA. See id. ss 381.81-89.


The method of inspection just described had remained  unchanged for
decades. Then, in the mid-1990s, FSIS em- barked on a comprehensive
food safety initiative targeting the  agency's resources at what it
perceived as a serious health  risk--foodborne pathogens, such as
salmonella and E. coli,  which cannot be detected by organoleptic
inspection. At the  same time it determined to make changes in the
current  inspection process to combat these microbial causes of food-
borne illness, FSIS addressed what it considered to be anoth- er
failure of the present regulatory system--that it provides  processing
plants with little incentive to detect and eliminate  unacceptable
carcasses before presenting them for inspection.  For these reasons,
FSIS decided to require "industry to  assume responsibility for
producing safe products, reducing  foodborne pathogens, and ... to
shift Agency inspection  resources to those areas which present the
greatest public  health risk." John W. McCutcheon Decl. at p 10.


In July 1996, FSIS took the first step in implementing its  new
initiative by promulgating the Pathogen Reduction/  Hazard Analysis
and Critical Control Points ("HACCP") final  rule. See 61 Fed. Reg.
38,806 (1996). The rule "requires  plants to implement science-based
process control systems as  a means of preventing food safety hazards,
sets certain food  safety performance standards, and establishes
testing pro- grams to ensure those standards are met." Food Safety and
 Inspection Service, HACCP-Based Inspection Models 1  (1998). It
provides the industry with complete control over  production decisions
and execution, subject only to the perfor- mance standards set by
FSIS. FSIS believes that heighten- ing the industry's responsibility
for safe meat and poultry  products will increase "the incentives and
flexibility establish- ments need to innovate and improve food
safety." HACCP  Final Rule, 61 Fed. Reg. 38,808.


Such advances, according to FSIS, cannot be achieved  without
substantial changes to its approach to inspection. As  the agency put
it, the roles of establishments and federal  inspectors need to be
"realigned to accord with the HACCP  philosophy." Id. To design and
test new inspection models,  FSIS initiated the Inspection Models
Development Project 


(the "Models Project"). Under the regulatory framework  proposed in the
Models Project, the task of separating normal  from abnormal carcasses
and parts will be carried out solely  by industry personnel. Federal
inspectors will be responsible  for monitoring the plant's performance
in sorting and for  verifying its compliance with performance
standards and  regulatory requirements. Under the new model, a finding
 that a product is not adulterated will be based on FSIS's 
determination that the establishment's food safety and sanita- tion
control systems are preventing adulteration.1


Under the new inspection models, FSIS has said that  "slaughter process
control will be an industry responsibility  subject to FSIS oversight
and verification." HACCP-Based  Meat and Poultry Inspection Concepts:
In-Plant Slaughter  Inspection Models Study Plan, 63 Fed. Reg. 40,381,
40,381  (1998). It explained, "[e]stablishment employees will conduct 
anatomical and pathological examinations of carcasses, and  FSIS
inspectors will oversee, evaluate, and verify the effec- tiveness and
reliability of the establishments' slaughter pro- cess controls." Id.
FSIS plans the transition to industry- based inspection to occur in
stages. At the outset, establish- ment employees will only be
responsible for identifying and  removing trimmable defects. They will
later assume respon- sibility for generalized condemnable conditions.
And at the  final stage, employees will perform "all tasks related to 
slaughter control," with the inspectors' role limited to over- sight
and verification. Food Safety and Inspection Service,  HACCP-Based
Inspection Models Project In-Plant Slaugh- ter 10 (1998).


Draft guidance put out by FSIS gives some indication of  what oversight
and verification entails. Though the descrip-




__________

n 1 The Models Project encompasses several phases. The first  phase
involves collecting baseline data of current performance  under
federal inspection in order to ensure that the new system  achieves
similar standards. This is followed by a period of testing  the new
inspection models at certain volunteer plants. Testing  began in three
such plants in September 1999, and FSIS has set  tentative start-up
dates for eighteen others.


tions vary slightly depending on the class of animals, over- sight
amounts to inspectors observing establishment person- nel as they
process carcasses and remove unacceptable  products from the food
supply. By verification, FSIS means  that inspectors will randomly
sample and examine carcasses  that have been passed to determine if
the establishment is  complying with the relevant performance


The appellants are a group of federal meat and poultry  inspectors,
their union, and the Community Nutrition Insti- tute. They brought
this suit to enjoin the Secretary from  "authorizing anything other
than the carcass-by-carcass post- mortem inspection by a federal
government inspector." Brief  for Appellants at 5. Following
cross-motions for summary  judgment, the district court ruled in the
government's favor  on the basis that the word "inspection" did not
clearly require  an organoleptic inspection. See American Fed'n of
Gov't  Employees, AFL-CIO v. Glickman, No. 98-0893, Memoran- dum and
Order (D.D.C. Sept. 23, 1999).


II


The statutory language with which we are concerned, the  language
supposedly allowing FSIS's oversight and verifica- tion regime, is as
follows. For meat, s 604 of the FMIA  provides: "the Secretary shall
cause to be made by inspectors  appointed for that purpose a
post-mortem examination and  inspection of the carcasses and parts
thereof of all [livestock]  to be prepared at any slaughtering, ... or
similar establish- ment...." 21 U.S.C. s 604 (emphasis added). For
poultry,  s 455(b) of the PPIA states: "[t]he Secretary, whenever 
processing operations are being conducted, shall cause to be  made by
inspectors post mortem inspection of the carcass of  each bird
processed...." 21 U.S.C. s 455(b) (emphasis add- ed).


The government does not deny that in the ninety or so  years since
passage of the FMIA in 1907, "inspection" has  been taken to mean an
organoleptic examination of the car- cass, an inspection, that is,
using the senses. Now the  government has discovered another meaning.
A "federal 


employee has performed an inspection of a carcass," the  government
tells us, "when he has watched a plant employee  conduct the kind of
examination, organoleptic or otherwise,  that is necessary to
determine whether the carcass is fit for  human consumption. And in
making these observations, the  oversight inspector will observe all
of the carcasses that pass  along the slaughter line." Brief for the
Appellees at 29.


In other words, the government believes that federal em- ployees
fulfill their statutory duty to inspect by watching  others perform
the task. One might as well say that umpires  are pitchers because
they carefully watch others throw base- balls. The government thinks
it can arrive at its position on  the basis that the word "inspection"
is undefined in the  statutes. But the lack of a statutory definition
does not  render a term ambiguous. See Bass v. Stolper, Koritzinsky, 
Brewster & Neider, S.C., 111 F.3d 1322, 1325 (7th Cir. 1997).  It
simply leads us to give the term its ordinary, common  meaning. See
Perrin v. United States, 444 U.S. 37, 42 (1979);  Johnson v. SEC, 87
F.3d 484, 487 (D.C. Cir. 1996). And when  we treat the word
"inspection" in that manner, it is easy to  see why there is nothing
to the government's point that "an  oversight inspector will
necessarily observe all carcasses and  parts that pass along the
slaughter line." See John W.  McCutcheon Decl. at p 21. Every
inspection entails an obser- vation, but not every observation amounts
to an inspection.  One may observe something without paying close
attention to  it, and without giving it a critical appraisal, although
that is  what these statutes demand. The military commander may 
observe his troops without inspecting them. The foreman of  an


Both statutes clearly contemplate that when inspections are  done, it
will be federal inspectors--rather than private em- ployees--who will
make the critical determination whether a  product is adulterated or
unadulterated.2 To the extent  federal employees are doing any
systematic inspecting under 




__________

n 2 "The term 'inspector' means: (1) an employee or official of the 
United States Government ..., or (2) any employee or official of the 
government of any State...." 21 U.S.C. s 453(k).


the Models Project, they are inspecting people not carcasses. 
Delegating the task of inspecting carcasses to plant employ- ees
violates the clear mandates of the FMIA and PPIA. See  Chevron USA,
Inc. v. Natural Resources Defense Council,  Inc., 467 U.S. 837, 842-43
(1984). For that reason, we  reverse the grant of summary judgment and
remand to the  district court for further proceedings consistent with
this  opinion.


So ordered.