State of New York et al v. United States Department of Agriculture et al

Filing 71

OPINION AND ORDER re: 41 MOTION to Dismiss for Lack of Jurisdiction . filed by United States Department of Agriculture Food and Nutrition Service, United States Department of Agriculture, Sonny Perdue. Plaintiff States alleged an injury in fact to their proprietary interests and thus, have established standing. Accordingly, Defendants' 12(b)(1) motion to dismiss is DENIED. (Signed by Judge Andrew L. Carter, Jr on 4/16/2020) (rj)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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STATES OF NEW YORK, CALIFORNIA,
ILLINOIS, MINNESOTA, NEW MEXICO,
and VERMONT, and THE DISTRICT OF
COLUMBIA
Plaintiff,
-against-

4/16/20
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1:19-cv-2956 (ALC)
OPINION AND ORDER

UNITED STATES DEPARTMENT OF
AGRICULTURE, UNITED STATES
DEPARTMENT OF AGRICULTURE FOOD
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AND NUTRTION SERVICE, and SONNY
PERDUE in his official capacity as Secretary
ANDREW L. CARTER, JR., United States District Judge:
of Agriculture,
Plaintiff-States of New York, California, Illinois, Minnesota, New Mexico, and
Defendants.
Vermont, and the District of Columbia brought this action against the United States
Department of Agriculture, the United States Department of Agriculture and Food and
Nutrition Service, and Sonny Perdue in his official capacity as Secretary of Agriculture
(together, “Defendants” or “USDA”), claiming that the promulgation of an Agency rule
in 2018—which provided schools flexibility in complying with certain sodium and whole
grain requirements previously adopted in a 2012 rule—violated substantive and
procedural requirements of the Administrative Procedure Act (“APA”). (ECF No. 44 or
“Am. Compl.”). Defendants now move to dismiss on jurisdictional grounds (ECF Nos.
41, 42 or “Def. Br.”). For the following reasons, that motion is DENIED.
I. Factual Background
The National School Lunch Act and the Child Nutrition Act require the
Defendants to ensure that school-served meals meet national nutritional requirements.
(Am. Compl. at ¶ 8). “As initially enacted, both Acts require USDA to prescribe

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nutritional requirements ‘on the basis of tested nutritional research.’” (Id.) (quoting 42
U.S.C §§ 1758(a)(1)(A), 1773(e)(1)(A)). Congress has consistently reinforced that
mandate, most recently in 2010, “by requiring USDA to update nutritional requirements
based on a 2009 study by the Food and Nutrition Board, which is part of the National
Academy of Sciences.” (Id. at ¶¶ 8, 49) (citing Pub. L. No. 111-296, § 201) (codified at
42 U.S.C. § 1753(b)(3)(A)).
“Federal funding for school meals is provided in the form of reimbursements for
each meal served that meets the nutritional requirements in USDA’s regulations.” (Id. at
¶ 31) (citing 7 C.F.R. §§ 210.7, 220.9). “Meals that are served free or at a reduced price
to children from lower-income families are reimbursed at higher rates.” (Id.) (citing 83
Fed. Reg. 34,105-07 (July 19, 2018); 7 C.F.R. §§ 210.4(b), 220.9(b)). Additionally,
USDA “directly purchases food for school meals (‘USDA Foods’) and provides it to
school food authorities, often through a state agency. Each school food authority receives
an annual allotment to procure USDA Foods.” (Id. at ¶ 32) (citing 7 C.F.R. § 250.56(c));
see 7 C.F.R. § 250.56(a)–(b)).
In 2012, the USDA promulgated a rule pursuant to the statutory mandates of
Congress establishing nutritional standards for school meals based on the Dietary
Guidelines for Americans and the 2009 Nutrition Board Study. (Id. at ¶¶ 50–51) (citing
77 Fed. Reg. 4088 (Jan. 26, 2012)) (codified at 7 C.F.R. §§ 210.10, 220.8) (“2012 Rule”).
“Before issuing the 2012 Rule, USDA had issued a proposed rule in 2011 and considered
133,268 public comments on the proposed rule.” (Id. at ¶ 52) (citing 77 Fed. Reg. at
4089). Of particular relevance here, the 2012 Rule restricted sodium and increased the
whole grains provided in students’ lunches. With respect to sodium, the Rule required

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schools to reduce the sodium in school meals over a ten-year period, with ultimate goals
of a roughly 25% reduction in breakfasts and a roughly 53% reduction in lunches
(Sodium Target 3). Schools had to meet two intermediate sodium targets (Sodium Target
1 and Sodium Target 2) within that ten-year period at the two- and four-to-five-year
marks. (Id. at ¶¶ 59–60); 77 Fed. Reg. at 4097–98, 4147, 4155–57.
By the 2014-2015 academic year, schools needed to decrease sodium levels by
roughly 5 to 7% in breakfasts and by roughly 10% in lunches (Sodium Target 1); 77 Fed.
Reg. at 4097–98, 4146, 4155. By the 2017-2018 academic year, schools were required to
reduce breakfast sodium levels by roughly 15 to 17% and lunch sodium levels by about
32 percent (Sodium Target 2). Id. “The compliance date for the final sodium target was
school year 2022–2023” (Sodium Target 3). (Am. Compl. at ¶ 61).
The 2012 Rule also required that for the 2012-2013 and 2013-2014 school years,
half of the grain products offered by schools at breakfast and lunch needed to be wholegrain rich, meaning comprised of at least 51% whole grains. (Am. Compl. at ¶ 66) (citing
77 Fed. Reg. at 4093, 4144–45, 4155–56). In the 2014-2015 year and beyond, schools
could serve only whole-grain rich items. (Id. at ¶ 67) (citing 77 Fed. Reg. at 4093, 4144–
45, 4156).
Beginning in late 2011, before the 2012 Rule was even finalized, Congress
provided schools with flexibility in meeting the proposed sodium and whole grain
requirements. In the Consolidated and Further Continuing Appropriations Act, Congress
prohibited the implementation of a sodium reduction greater than the parameters of the
2012 Rule’s Target I, or two-year target. See Consolidated and Further Continuing
Appropriations Act, 2012, Pub. L. 112–55, § 743(2) (Nov. 18, 2011). Congress renewed

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this prohibition multiple times, limiting the sodium reduction requirement to Target 1
throughout the 2017–2018 school year. See Consolidated and Further Continuing
Appropriations Act, 2015, Pub. L. 113–235 § 752 (Dec. 16, 2014); Consolidated and
Further Continuing Appropriations Act, § 733(b) (Dec. 18, 2015) (“2016 Act”);
Consolidated and Further Continuing Appropriations Act, 2017 Pub. L. 115-31 § 747(b)
(May 5, 2017) (“2017 Act”); Consolidated and Further Continuing Appropriations Act,
2018 Pub. L. 115-56 div. D § 101(a) (Sept. 8, 2017) (“2018 Act”). Similarly, in 2014,
Congress instructed that States could grant an exemption to the only whole grains
requirement where a school could demonstrate hardship “in procuring specific whole
grain products which are acceptable to the students and compliant with the whole-grainrich requirements,” Pub. L. 113-235 § 751. Under the exemption, half, as opposed to all
of the school’s grains products were required to be whole-grain rich. Id. The exemption
program was set to expire after the 2017-2018 school year.
In 2017, the USDA promulgated an interim final rule extending additional
deadlines present in the 2012 Rule. (Am. Compl. at ¶ 74) (citing 82 Fed. Reg. 56,703
(Nov. 30, 2017). The 2017 Interim Rule extended the Sodium Target 1 requirement
through the academic year of 2018-19, meaning schools would not be required to comply
with Target 2 until the 2019-20 school year. (Id. at ¶ 75) (citing 82 Fed. Reg. 56,704)
(codified at 7 C.F.R. §§ 210.10(f)(3), 220.8(f)(3)). The product waiver program for the
whole grain mandate was also extended through the school year 2018-2019. (Id. at ¶ 76)
(citing 82 Fed. Reg. at 56,704) (codified at 7 C.F.R. §§ 210.10(c), 220.8(c)).
The USDA did not provide the public with notice or an opportunity to comment
until after the 2017 Interim Final Rule had been issued. (Id. at ¶ 77–78).

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In 2018, the USDA issued a final rule granting schools flexibility in reducing their
sodium content and increasing whole grain availability. (Id. at ¶ 79) (citing Child
Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83
Fed. Reg. 63, 775 (Dec. 12, 2018) (codified at 7 C.F.R. § 210.10; 7 C.F.R. § 220.8) (the
“2018 Rule”). The 2018 Rule eliminated the 2012 Rule’s final sodium reduction targets,
which would have gone into effect in the 2022–2023 school year, and delayed by five
years the implementation of Sodium Target 2 requirements, which would have gone into
effect in the 2018 school year. (Id. at ¶¶ 80, 87) (citing 83 Fed. Reg. 63,776, 63-787). In
other words, schools only had to satisfy Target 1’s requirements until the beginning of
the 2024–25 academic year, when Target 2 requirements would take effect.
The 2018 Rule also relaxed significantly the 2012 Rule’s whole grains
framework. The new rule eliminated entirely the requirement that schools ultimately
serve only whole-grain-rich products, leaving in place the requirement that half of a
school’s weekly grain products be whole-grain rich. (Id. at ¶ 95) (citing 83 Fed. Reg. at
63,776). Again, under the 2012 Rule, schools were required to begin providing 100%
whole-grain-rich products beginning in the 2014-2015 academic year. (Id.)
The 2018 Rule sets minimum nutritional standards. States are free to impose
additional or stricter requirements. See 7 C.F.R. § 210.19(e).
II. Procedural Background
The Plaintiffs filed their two-count complaint against the USDA and other
Defendants on April 3, 2019. (ECF No. 1). They amended their complaint on September
16, 2019. (ECF No. 44). The amended complaint claims first, that Defendants violated
the APA because the 2018 Rule was promulgated without notice and comment, and thus,

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its provisions should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(D).
(Am. Compl. at ¶¶ 138–44). Second, Plaintiffs claim that the provisions in the 2018 Rule
eliminating the final sodium target, delaying compliance with sodium target 2, and
cutting in half the whole-grain-rich requirement, are inconsistent with the goals of the
most recent Dietary Guidelines for Americans and the Nutrition Board’s 2009
recommendations, and thus, are contrary to the School Lunch and Child Nutrition Acts
and should be held unlawful under the APA, 5 U.S.C. § 706(2)(A). (Id. at ¶¶ 145–50).
Third and finally, the States claim that the 2018 Rule is arbitrary and capricious and
should be set aside under the APA, 5 U.S.C. § 706(2)(A). (Id. at ¶¶ 151–57).
Plaintiffs brought this suit in both their parens patriae and proprietary capacities.
(Id. at ¶¶ 105–26, 127–37). On August 26, 2019, Defendants filed the instant motion to
dismiss Plaintiffs’ complaint in its entirety, arguing that the States lack standing for either
type of suit. (ECF No. 41).
III. Legal Standard
“To defeat a 12(b)(1) motion, a plaintiff must establish subject matter jurisdiction
by a preponderance of the evidence.” Vullo v. Office of the Comptroller of the Currency,
17 Civ. 3574, 2017 WL 6512245, at *5 (S.D.N.Y. Dec. 12, 2017) (citing Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). “When considering a Rule
12(b)(1) motion, the court “‘must take all uncontroverted facts in the complaint ... as true,
and draw all reasonable inferences in favor of the party asserting jurisdiction.’” Batalla
Vidal v. Duke, 295 F. Supp. 3d 127, 146 (E.D.N.Y. 2017) (quoting Tandon v. Captain's
Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)).

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IV. Analysis—Standing
Standing is one element of Article III’s case and controversy requirement. U.S.
CONST. art. III, § 2. Standing “limits the category of litigants empowered to maintain a
lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1547 (2016). When, as here, there are multiple plaintiffs, only one plaintiff
need possess the requisite standing for a suit to go forward. See Town of Chester, N.Y. v.
Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017); Massachusetts, et al. v. E.PA., 549 U.S.
497, 518 (2007).
“[T]he irreducible constitutional minimum of standing contains three elements.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing these elements for each
claim asserted.” Vullo, 2017 WL 6512245, at *7 (citing Spokeo, Inc., 136 S. Ct. at 1547).
“The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, 136 S. Ct. at 1547 (citing Lujan, 504 U.S. at 560–61). “A
plaintiff need not, however, demonstrate that the defendant was the proximate or ‘but-for’
cause of the injury-in-fact.” Batalla Vidal, 295 F. Supp. 3d at 155.
Here, where a state is a plaintiff, “the ordinary rules of standing” are modified.
See id. at 158. State Plaintiffs can have three types of interests in litigation, “proprietary,”
“sovereign,” or “quasi-sovereign” interests. See Alfred L. Snapp. & Son, Inc., et al. v.
Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982).
Proprietary interests are those the state may invoke as a private party. They are
interests like land ownership or participation in a business venture, where the state “[a]s a

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proprietor, is likely to have the same interests as other similarly proprietors…[who] may
at times need to pursue those interests in court.” Id. at 601–02.
Sovereign interests fall squarely within the state’s interest in acting like a state.
Easily identified, qualifying interests include, for example, “the exercise of sovereign
power over individuals and entities within the relevant jurisdiction…[which] involve[d]
the power to create and enforce a legal code, both civil and criminal” and “the demand
for recognition from other sovereigns…[which] involve[d] the maintenance and
recognition of borders.” Id. at 601.
Quasi-sovereign interests are characterized less easily. Quasi-sovereign interests
“consist of a set of interests that the State has in the well-being of its populace.” Id. at
602. A more specific “articulation of such interests is a matter for case-by-case
development.” Id. at 607. States may enforce their quasi-sovereign interests pursuant to
the parens patriae doctrine, “which is a judicial construct that does not lend itself to a
simple or exact definition.” Id. at 601. “In general, however, the Court has recognized
that a state has [enforceable] quasi-sovereign interests in the ‘health and well-being—
both physical and economic—of its residents in general,’ in protecting state ‘residents
from the harmful effects of discrimination,’ and in challenging the discriminatory denial
of a state’s ‘rightful status within the federal system.’” Batalla Vidal, 295 F. Supp. 3d at
161 (quoting Alfred L. Snapp & Son, Inc., 458 U.S. at 607, 609).
“There are, however, at least two notable limitations on states’ parens patriae
standing.” Id. “First, to be ‘quasi-sovereign,’ the state's interests must be sufficiently
generalized that the state is seeking to vindicate its citizens' welfare, rather than simply
pressing suit on behalf of its individual residents.” Id. (quoting Alfred L. Snapp & Son,

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458 U.S. at 607). The second limitation is more complicated but arises only when a state
brings a parens patriae suit against the federal government. In Commonwealth of
Massachusetts v. Mellon, the Supreme Court provided that Massachusetts could not sue
the United States government for enforcing a federal statute that Massachusetts claimed
was unconstitutional. 262 U.S. 447, 485 (1923) (“the citizens of Massachusetts are also
citizens of the United States. It cannot be conceded that a state, as parens patriae, may
institute judicial proceedings to protect citizens of the United States from the operation of
the statutes thereof”). In Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, the
Court reaffirmed its holding in Mellon in a footnote, citing Mellon for the proposition that
“[a] state does not have standing as parens patriae to bring an action against the Federal
Government.” 458 U.S. at 601 n. 16.
But since Mellon and Snapp, the Supreme Court has noted that “[t]he cases on the
standing of states to sue the federal government seem to depend on the kind of claim that
the state advances.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n,
135 S.Ct. 2652, 2664 n. 10 (2015) (quoting R. Fallon, J. Manning, D. Meltzer, & D.
Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 263–66 (6th ed.
2009). “[T]here is a critical difference between allowing a State ‘to protect her citizens
from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a
State to assert its rights under federal law (which it has standing to do).” Massachusetts,
549 U.S. at 520 n. 17. Regardless, circuit courts that have addressed this issue have
determined the type of suit to be irrelevant. They have held that states cannot sue the
federal government in parens patriae, period. See, e.g. Nevada v. Burford, 918 F.2d 854,
858 (9th Cir. 1990); Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179-80 (D.C. Cir.

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2019); Michigan v. EPA, 581 F.3d 524, 529 (7th Cir. 2009); State ex rel. Sullivan v.
Lujan, 969 F.2d 877, 883 (10th Cir. 1992).
Plaintiffs sued the USDA to enforce both their quasi-sovereign and proprietary
interests. Plaintiffs allege that the 2018 Rule implicated their quasi-sovereign interests by
endangering the physical well-being of resident children who eat meals in public schools.
(Am. Compl. at ¶¶ 105–27). States’ proprietary interests are implicated, Plaintiffs allege,
because their health care costs will rise in response to the 2018 Rule’s adjustment to
nutritional standards. (Am. Compl. at ¶¶ 128–32).
In their motion to dismiss, Defendants argue that Plaintiffs lack standing to bring
either a parens patriae or proprietary suit. (Defs’ Brief). First, Defendants argue that
under Mellon and Snapp, States cannot bring parens patriae suits against federal
government agencies, period. (Id. at 13–17). The District of Columbia, Defendants
contend, also lacks the requisite sovereignty to bring such a suit. (Id. at 17). Second,
Defendants argue that even if a parens patriae suit were not outright barred in this
context, Plaintiffs’ suit would still fail because they did not allege an injury in fact to
their quasi-sovereign interests. (Id. at 18–21). Third, Defendants assert that Plaintiffs
failed to allege an injury in fact related to their proprietary interests, and Plaintiffs
therefore lack standing to bring this suit against the USDA even in their individual
capacities. (Id. at 21–24).
Because I conclude the States have standing to enforce their proprietary interests,
I need not reach the question of whether a parens patriae suit against the federal
government in this context is permissible or whether Plaintiffs have alleged a quasisovereign interest sufficient to confer standing.

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A. Proprietary Standing
Plaintiffs allege that the 2018 Rule will lead to adverse health effects in children
residing in the States, which will, in turn, raise the States’ healthcare costs. (Am. Compl.
at ¶¶ 128–32). In particular, they argue that their health care costs would have decreased
if Sodium Target 2 had taken effect and that the health care costs paid by some of the
States for conditions related to low-whole-grain diets will increase as a result of Rule
2018’s lowering of the whole-grain requirement. (Am. Compl. at ¶¶ 131–132). The
USDA argues that this injury is too speculative to confer standing. I disagree.1
1. Type of 12(b) Motion
As a preliminary matter, Defendants argue that because they proffered evidence
beyond the complaint challenging Plaintiff’s alleged grounds for standing, Plaintiffs had
to come forward with evidence to contradict Defendants. (Defs. Brief at 12).
When a Rule 12(b)(1) motion is facial, i.e., based solely on the allegations of the
complaint or the complaint and exhibits attached to it (collectively the
“pleading”), the plaintiff has no evidentiary burden. The task of the district court
is to determine whether the Pleading allege[s] facts that affirmatively and
plausibly suggest that [the plaintiff] has standing to sue…Alternatively, a
defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering
evidence beyond the Pleading. In opposition to such a motion, the plaintiffs will
need to come forward with evidence of their own to controvert that presented by
the defendant if the affidavits submitted on a 12(b)(1) motion…reveal the
existence of factual problems’ in the assertion of jurisdiction. However, the
plaintiffs are entitled to rely on the allegations in the Pleading if the evidence
D.C. alleges a unique proprietary interest. “In response to the 2017 Interim Final Rule, the District of
Columbia passed the Healthy Students Amendment Act of 2018 which impose[d] the 2012 Rule’s whole
grain requirement.” (Am. Compl. at ¶ 134 (citing D.C. Law 22-240)). The new D.C. rule requires that “[a]ll
grain products…be whole grain-rich[.]” (Id. at ¶ 135). D.C. argues that it suffers an increased regulatory
burden because of the 2018 Rule. Because its new rule raises the requirements of the federal-floor, D.C.
will need to “develop and implement its own training techniques and compliance tools for schools,” (Id. at
¶ 136), and “school food authorities in the District of Columbia will have to make greater effort[s] to
procure whole grain-rich products than [they] would have if USDA had not lowered the 2012 Rule’s whole
grain requirement.” (Id. at ¶ 137). The USDA argues that this interest also does not confer standing. Again,
only one plaintiff need have standing for a suit to go forward. Because I conclude that the other Plaintiffs,
the States have standing based on their rising healthcare costs, I need not determine whether D.C.’s injury
would be sufficient on its own.
1

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proffered by the defendant is immaterial because it does not contradict plausible
allegations that are themselves sufficient to show standing.
Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56–57 (2d Cir. 2016) (internal citations
and quotation marks omitted) (alterations in original).
Defendants argue that they brought forward qualifying controverting evidence in
their motion to dismiss. In particular, Defendants emphasize that they presented several
factual problems with Plaintiffs’ injury allegations. First, the USDA argues that
Plaintiffs’ allegation that their healthcare costs would have decreased if the 2012 Rule’s
sodium target timeline had been followed is irreconcilable with Plaintiffs’ amended
complaint. The 2012 Rule called for Sodium Target 2 to take effect at the beginning of
the 2017-2018 academic year. However, Congress subsequently required only Target 1 to
be applied that year and the 2017 Interim Rule provided for the same. If Plaintiff’s
allegations are true, the USDA argues, then the States’ health care costs should have risen
in the 2017-2018 and 2018-2019 academic years. However, Plaintiffs failed to allege
specific rises in healthcare costs during these time periods or that the implementation of
Target 1 resulted in any decreased health care costs as compared to the States’ healthcare
costs prior to the implementation of any sodium reduction requirement. (Defs. Reply at
3).
The USDA raises a similar argument with respect to whole grains. First, the 2012
Rule initially required all of schools’ grain products to be whole-grain rich, but in 20172018, over 4,100 school districts were granted exemptions, under which only half of the
exempted districts’ whole-grain products needed to be whole-grain rich. The States did
not allege that health care costs were higher when schools were granted exemptions.
(Def. Reply at 3–4).

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Defendants argue that they presented evidence of a “factual problem with
Plaintiffs’ claims of increased future health care costs resulting from the 2018 Rule”—
specifically, they showed that—“similar circumstances have occurred in the past, yet
apparently did not impose greater health care costs on Plaintiffs.” (Def. Reply at 4).
According to the Defendants, this evidence converted its Rule 12(b)(1) motion into a
fact-based motion and Plaintiffs were required, but failed to offer refuting evidence.
The States disagree with this characterization of Defendants’ “evidence.” The
States argue that Defendants’ alleged evidence does not contradict the jurisdictional
allegations that States have or will incur higher health care costs under the 2018 Rule. I
agree. Defendants do not offer actual evidence, but rather point out the absence of certain
evidence in Plaintiff’s amended complaint. Although this absence may be persuasive to a
fact-finder, it is not the type of affirmative evidence sufficient to place an added
evidentiary burden on plaintiffs. To require the States to produce rebuttal evidence,
Defendants would have to submit evidence that the 2018 Rule, as opposed to Congress’s
pre-2018 Rule actions, would not impact state health care costs. See DaCorta v. AM
Retail Group, Inc., No. 16 Civ. 01748, 2018 WL 557909, at *6 (S.D.N.Y. Jan. 23, 2018)
(12(b)(1) motion not “converted” where Defendants’ evidence addressed “the extent of
Plaintiff’s injury—not whether one exists”). Defendants offered no such evidence.
Accordingly, Plaintiffs were entitled to rely on the pleadings alone.
2. Healthcare Costs
The USDA argues that the alleged increase in State healthcare costs is too
speculative an injury and not fairly traceable to the 2018 Rule. Defendants argue further
that the alleged adverse health effects are “just possible, not imminent” and rising

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healthcare costs caused by those hypothetical health effects is an even more attenuated
injury. Neither the health effects nor resulting costs, Defendants contend, are fairly
traceable to the 2018 Rule’s sodium restrictions and whole-grain-rich requirements
specifically. (Def. Brief at 21–24). Again, I disagree.
First, Plaintiffs allege a clear nexus between high sodium, lower whole-grain-rich
diets and adverse health effects in children. For example, the amended complaint
provides that the Dietary Guidelines recommend that “children and adults [] limit sodium
intake to lower the risk of chronic diseases,” (Am. Compl. at ¶ 110) (quoting 77 Fed.
Reg. at 4097) (alteration in original), and that in issuing the 2012 Rule, the USDA found
that “high-sodium diets adversely affect students’ cardiovascular health and increase the
risk of chronic cardiovascular disease.” (Id. at ¶ 109) (citing 77 Fed. Reg. at 4097–98,
4133).
Further, Plaintiffs explained why even the differences between the 2012 Rule’s and
2018 Rule’s requirements could be significant. For example, the amended complaint
explained that the 2015-2020 Dietary Guidelines “state that ‘at least half’ of the grains
consumed by children and adults ‘should be whole grains,’ which is the equivalent of
consuming 100% whole-grain rich products.” (Am. Compl. at ¶ 121). But under the 2018
Rule, a 100% whole-grain rich menu in schools is no longer a required target, let alone an
imminent one. With respect to sodium, Plaintiffs cite the USDA’s own finding that even
modest reductions in sodium intake can reduce cardiovascular events and medical costs.
See (Am. Compl. at ¶¶ 58, 118); see 77 Fed. Reg. at 4133. Additionally, the amended
complaint cited the 2009 Nutrition Board Study’s finding that “each reduction in the
sodium content of school meals will be beneficial to the nation’s children.” (Id. at ¶ 111).

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Plaintiffs’ inability to allege that school children are experiencing or definitively will
experience chronic diseases or cardiovascular symptoms, does not mean that these
injuries are not concrete or too speculative to confer standing. The alleged present risk of
harm is enough. The distinction lies in where the uncertainty exists.
In Clapper v. Amnesty International, USA, the Supreme Court rejected arguments
from Plaintiffs—human rights, labor, legal, and media organizations—that they had
standing to challenge a statute allowing for the interception of foreign communications.
568 U.S. 398 (2013). Plaintiffs asserted they had standing because there was an
“objectively reasonable likelihood that their communications with their foreign contacts
[would] be intercepted…” Id. at 410. The Court determined this injury to be speculative
because it was still unclear whether, among other things, the Government would choose
to invoke its authority under the statute, the Government’s proposed procedures would
withstand Fourth-Amendment scrutiny, or if the Plaintiffs would be parties to the
communications the Government would attempt to intercept. Id. at 410–14. In short,
Plaintiffs’ theory of standing was dependent upon a highly attenuated chain of
possibilities such that the threatened injury was not impending. Id.
In Clapper, there were multiple events that had to occur before even the risk of harm
to Plaintiffs was imminent, so the denial of standing in that case does not mean “that the
risk of real harm cannot satisfy the requirement of concreteness.” Spokeo, Inc., 136 S.Ct.
at 1549. In this case, unlike in Clapper, the risk of injury is imminent in that the 2018
Rule has been promulgated and put it into effect.
Plaintiffs also allege adequately the connection between these adverse health effects
and their healthcare costs. They explain that many of the students who participate in the

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school breakfast and lunch programs are low- and moderate-income state residents. When
school meals are high in sodium and low in whole grains they are less healthy, and less
healthy foods lead to conditions like high blood pressure, type two diabetes, and obesity.
All of these conditions lead to higher health care bills. Because States subsidize
healthcare costs for low- and moderate-income residents—the same residents consuming
these less healthy meals—they are likely to endure some of the increased healthcare costs
that will result from these conditions. (Am. Compl at ¶¶ 128–132).
Defendants argue that this proprietary injury is even more speculative than Plaintiffs’
alleged quasi-sovereign injury in the health and well being of school children and far too
attenuated. However, as Plaintiffs note, the USDA itself identified at least the link
between the school meals program and healthcare costs in promulgating its 2012 Rule.
(Am. Compl. at ¶ 128). The USDA noted “[t]he linkage between poor diets and health
problems such as child obesity” and that childhood obesity “imposes substantial
economic costs” including “an estimated $3 billion in direct medical costs.” 77 Fed. Reg.
at 4107, 4133. Additionally, the USDA continued, “obese children and adolescents are
more likely to become obese as adults” and medical spending attributed to the adult
obesity epidemic in 2008 was an estimated $147 billion. Id. The USDA acknowledged
that it could not “define a level of disease or cost reduction that is attributable to the
changes in meals expected to result from implementation of the [2012] rule” but
explained that because “the rule [was] projected to make substantial improvements in
meals served to more than half of all school-aged children on an average school day, [the
agency] judge[d] that the likelihood is reasonable that the benefits of the rule exceed[ed]
the costs[.]” Id.

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This court has found an increase in state healthcare costs to be a sufficient injury in
similarly attenuated circumstances. In New York v. United States Department of
Homeland Security, this court considered Plaintiff-States’ challenge to a rule
promulgated by the Department of Homeland Security (“DHS”), which amended the socalled public charge rule. 408 F. Supp. 3d 334 (2019), overruled on other grounds, 140
S.Ct. 599 (2020) (granting Defendants’ application to stay the District Court’s orders
granting preliminary injunction pending disposition of Government’s appeal to the
Second Circuit); see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292-01
(Aug. 14, 2019). Pursuant to The Immigration Nationality Act (“INA”), the federal
government may deny admission or adjustment of status to any noncitizen, who, in the
government’s opinion, is “likely at any time to become a public charge.” See id. at 340
(quoting 8 U.S.C. § 1182(a)(4)(A)). The new rule redefined the terms “public charge”
and “public benefit” and provided “a new framework for assessing whether a noncitizen
is likely at any time to become a public charge.” Id. at 340–42. Plaintiffs brought this
action against DHS, The United States Citizenship and Immigration Services (“USCIS”),
the Acting Secretary of DHS, the Acting Director of USCIS, and the United States of
America seeking “(1) a judgment declaring that the Rule exceeds Defendants’ statutory
authority, violates the law, and is arbitrary and capricious and an abuse of discretion; (2)
a vacatur of the Rule; and (3) an injunction enjoining DHS from implementing the Rule.”
Id. at 340. Pursuant to Fed. R. Civ. P. 65, Plaintiffs moved “for a preliminary injunction
enjoining Defendants from implementing or enforcing the Rule which [was] scheduled to
take effect” later that month, as well as “for a stay postponing the effective date of the
Rule pending adjudication of this action on the merits.” Id.

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Defendants argued, among other things, that Plaintiffs lacked standing because they
failed to allege an injury in fact. Id. at 342–43. The court disagreed, finding that Plaintiffs
adequately demonstrated that the Rule would chill participation in benefits programs like
Medicaid, “reduc[ing] Plaintiffs’ consumers and revenue…while simultaneously shifting
costs of providing emergency healthcare and shelter benefits from the federal government
to Plaintiffs, who offer subsidized healthcare services.” Id. at 343. Additionally, the
States alleged they would suffer “increased healthcare costs as noncitizen patients avoid
preventative care.” Id. The court determined these injuries sufficient for standing.2
The injury in the public charge case, as here, is a risk of fiscal harm. Defendants’
conduct here similarly imposes this risk indirectly, in that the conduct directly affects
third parties, which in turn inflicts a financial burden on the states. To the extent the
USDA is arguing that the States’ ability to go above USDA nutritional requirements
defeats standing, New York v. United States Department of Homeland Security refutes
that argument. In that context, the States, in theory, were free to take steps to alleviate the
financial effects of the new public charge rule by altering the rate at which they subsidize
health care services. Yet, this court still correctly held that standing existed. While a selfinflicted injury cannot create standing, where a defendant inflicts an injury, plaintiff’s

2
See also Massachusetts v. United States Dep’t of Health and Human Services, 923 F.3d 209, 212,
222–23 (1st Cir. 2019) (Massachusetts had standing in suit to enjoin enforcement of two federal Interim
Final Rules (“IFRs”) which “permitted employers with religious or moral objections to contraception to
obtain exemption from providing health insurance coverage to employees and their dependents
for…contraceptive care[,]” coverage which would otherwise be required by Affordable Care Act
guidelines, because Massachusetts demonstrated an imminent fiscal injury—“a substantial risk that the
rules will cause women in the Commonwealth to lose their contraceptive coverage…[a] substantial
likelihood that some of these women will obtain state-funded contraceptive services or prenatal and
postnatal care for unintended pregnancies, and this that the Commonwealth will incur costs as a result.”).

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potential ability to mitigate the damage done by the defendant does not prevent
establishment of an injury in fact.
V. Conclusion
Plaintiff States alleged an injury in fact to their proprietary interests and thus,
have established standing. Accordingly, Defendants’ 12(b)(1) motion to dismiss is
DENIED.

SO ORDERED.

Dated: April 16, 2020
New York, New York

__________________________________
ANDREW L. CARTER, JR.
United States District Judge

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