The Cornucopia Institute et al v. United States Department of Agriculture et al

Filing 41

Transmission of Notice of Appeal, Docketing Statement, Opinion and Order, Judgment, Transcript Information Sheet and Docket Sheet to Seventh Circuit Court of Appeals re: 38 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Opinion and Order, # 3 Judgment, # 4 Transcript Information Sheet, # 5 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
THE CORNUCOPIA INSTITUTE, DOMINIC
MARCHESE, and REBECCA GOODMAN,
Plaintiffs,

OPINION AND ORDER
16-cv-246

v.
UNITED STATES DEPARTMENT OF
AGRICULTURE and TOM VILSACK,
Defendants.
_________________________________________________________________________________
Plaintiffs The Cornucopia Institute, Dominic Marchese and Rebecca Goodman filed
this action seeks a declaratory judgment that defendants United States Department of
Agriculture (“USDA” or “the Department”) and Tom Vilsack, in his capacity as the
Department’s Secretary, violated the Organic Foods Production Act of 1990, the
Administrative Procedure Act, and the Federal Advisory Committee Act. Specifically,
plaintiffs claim that defendants violated each of these statutes in appointing two members
to the National Organic Standards Board (“NOSB”). Plaintiffs further seek injunctive
relief in the form of an order (1) vacating those appointments and (2) removing certain
substances from the Board’s “National List” of prohibited organic substances and
permitted synthetic substances for purposes of labeling a food “organic,” each of which
plaintiffs claim would have been removed under a previous procedural rule.
In response, defendants have moved to dismiss all claims for lack of subject matter
jurisdiction on the grounds that plaintiffs lack standing. Alternatively, defendants ask the
court to dismiss all claims for failure to state a claim upon which relief can be granted, on
1

the grounds that plaintiffs’ claims are nonjusticiable. Because plaintiffs lack standing to
sue, the court will grant defendants’ motion.

ALLEGATIONS
A. The Parties
The Cornucopia Institute is “a public interest organization that engages in research
and education on agriculture and food issues” and “focuses on assessing the integrity of
organic food and agriculture.” (Am. Compl. (dkt. # 17) ¶ 33.)1 Cornucopia consists of a
board in charge of directing the organization’s policy and “thousands of members,”
including “certified organic farmers, former members of the NOSB, and conservationists.”
(Id. at ¶¶ 34, 35.)
Plaintiff Dominic Marchese is a member of Cornucopia and a certified organic
farmer from Farmdale, Ohio. Marchese applied to be a member of the NOSB in 1992,
2009 and 2011, but was not selected. Plaintiff Rebecca Goodman is a certified organic
farmer from Wonewoc, Wisconsin. Goodman also applied for an appointment to the
NOSB in 2014, but was not selected.
Defendant USDA is a federal agency headquartered in Washington, D.C.,
responsible for, among many other things, administering the National Organic Production
Program, including appointments to its Board. Defendant Tom Vilsack was the Secretary
of Agriculture, responsible for the operations of the USDA, until his resignation in January
2017. Michael Young is the current Acting Secretary of Agriculture. Given the court’s

Cornucopia’s website indicates it is a 501(c)(3) corporation.
https://www.cornucopia.org/about-us/ (last visited May 11, 2017).
1

2

The Cornucopia Institute,

decision to dismiss this case, there is no need to substitute Young for Vilsack.
B. Statutory Background
The Organic Foods Production Act of 1990 (“OFPA”) provides that the Secretary
of Agriculture “shall establish a National Organic Standards Board (in accordance with the
Federal Advisory Committee Act) . . . to assist in the development of standards for
substances to be used in organic production and to advise the Secretary on any other
aspects of the implementation of this chapter.” 7 U.S.C. § 6518(a). The OFPA requires
that the NOSB be composed of 15 members, and it also specifies that set numbers of its
membership will come from certain groups of individuals. Id. § 6518(b). In particular, it
requires that: four members are “individuals who own or operate an organic farming
operation”; two are “individuals who own or operate an organic handling business”; one is
an individual who operates a retail establishment with significant trade in organics; three
are conservationists; three members represent “public interest or consumer groups”; one is
a scientific expert in certain relevant fields; and one is an organic certifying agent. 7 U.S.C.
§ 6518(b)(1)-(7).
Among its duties, the NOSB develops the National List of Allowed and Prohibited
Substances (“National List”). 7 U.S.C. § 6518(k)(2). The National List identifies certain
synthetic substances that may be used in organic production and certain natural substances
that are prohibited for use in organic production. If adopted by the Secretary, the NOSB’s
recommendations for the National List will determine what substances can be used in
production of food that is labeled “organic” under the USDA organic program. See 7 U.S.C.
§ 6517(a), (e).
3

The Federal Advisory Committee Act (“FACA”) requires that federal advisory
committees be “fairly balanced in terms of the points of view represented and the functions
to be performed[.]” 5 U.S.C. App. 2 § 5(b)(2). Moreover, any legislation establishing a
federal advisory committee must “contain appropriate provisions to assure that the advice
and recommendation of the advisory committee will not be inappropriately influenced by
the appointing authority or by any special interest[.]” Id. § 5(b)(3).
The Administrative Procedure Act (“APA”) grants judicial review of agency action
to persons “suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of the relevant statute[.]” 5 U.S.C. § 702.
More specifically, APA § 704 provides that “final agency action for which there is no other
adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. Finally, APA
§ 706 grants courts power to set aside agency actions that are “arbitrary, capricious, or
otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).
C. Defendants’ Alleged Conduct
Plaintiffs’ claims arise from two, separate courses of conduct by defendants that
plaintiffs allege violated these statutory requirements and resulted in harm to plaintiffs:
(1) the appointments of two individuals, Carmela Beck and Ashley Swaffar, to the NOSB,
both of whom plaintiffs allege are unqualified; and (2) certain changes to NOSB
procedures.
1. The Beck and Swaffar Appointments
For the term beginning January 2012, USDA appointed Beck to a position on the
NOSB reserved for an individual who “own[s] or operate[s] an organic farming operation”
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under OFPA § 6518(b)(1). Beck works as the National Organic Program Supervisor and
Organic Certification Grower Liaison for Driscoll’s, a “conventional and organic berry
producer.”

(Am. Compl. (dkt. #17) ¶ 80.)

Plaintiffs contend that this position is

insufficient to qualify Beck as an owner or operator of an organic farming operation. In
her position on the NOSB, Beck has allegedly voted 177 times to retain a substance on the
National List when the other “farmer members” have voted to remove it. (Id. at ¶ 82.)
Plaintiffs claim that: Beck’s voting record demonstrates that her interests do not align with
the interests of organic farmers; and Beck was appointed to the NOSB in a year in which
plaintiff Marchese applied for a position and was denied.
In 2014, USDA appointed Swaffar to another of the NOSB open seats reserved for
individuals who own or operate an organic farming operation. Swaffar previously worked
for Arkansas Egg Company, a “conventional and organic egg production company,” where
she had a variety of responsibilities including financial planning, product development,
industry relations and compliance. (Id. at ¶ 86.) She now works for Vital Farms, a
company that contracts with farmers and markets conventional and organic eggs. Like
Beck, Swaffar has allegedly voted 165 to retain a substance on the National List when the
other farmer members voted to remove it. As with Beck, plaintiffs claim that Swaffar’s
experience does not qualify her as an owner or operator of an organic farming operation,
and her voting record demonstrates that her interests do not align with organic farmers.
Swaffar was appointed to the NOSB the same year in which plaintiff Goodman applied for
a position and was denied.
Plaintiffs allege that these appointments violate FACA’s “fairly balance”
requirement and “undermine[] the integrity of organic foods standards” -- ultimately
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making consumers less likely to purchase organic foods and resulting in economic loss to
plaintiffs. (Id. at ¶¶ 53, 56.)
2. Changes to NOSB Procedures
Plaintiffs further allege that certain USDA actions led to increasing USDA influence
over the NOSB, “undermining the committee’s independence and power.” (Am. Compl.
(dkt. # 17) ¶ 90.) In September 2013, USDA instituted new rules governing the procedure
for removing substances from the National List without a notice and comment period.
Under the new “Sunset Review” rules, a substance remains on the National List unless twothirds of the NOSB votes to remove it.

Under the previous rules, substances were

automatically removed from the list after five years unless two-thirds of the NOSB voted to
retain it on the list. These changes, plaintiffs allege, have resulted in “an increase in the
number of harmful synthetic substances left on the National List, and . . . therefore,
acceptable for use in organic agriculture.” (Id. at ¶ 96.) The changes have also put a
financial strain on Cornucopia, which considers oversight of USDA’s administration of
organics programs “essential to [its] mission.” (Id. at ¶ 41.) Cornucopia reviews and
reports to its members on each chemical on the National List, at an expense to the
organization of approximately $600 per substance. Additional substances left on the
National List, therefore, result in additional expense to Cornucopia.
In

February

2014, USDA eliminated the

NOSB’s Policy Development

Subcommittee and its Policy and Procedures Manual. Plaintiffs allege that this move was
an effort by USDA to “set its own work plan, requiring all of the NOSB’s work to be
preapproved by USDA.” (Id. at ¶ 106.) Sometime after May 2015, the NOSB also
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switched from a roll call vote to a vote by show of hands, making it more difficult for
plaintiffs to track how individual board members voted.
According to plaintiffs, the sum effect of these actions has been excessive USDA
influence over the NOSB and an “NOSB hostile to the public interests it was created to
protect.” (Id. at ¶ 20.)

OPINION
Plaintiffs state their claims in four counts: (1) the appointments of Beck and
Swaffar violate the OFPA and the APA because they are not “owners or operators of organic
farming operations”; (2) the appointments violate FACA and the APA because they violate
the

balanced

membership

and

viewpoints

requirements;

(3)

the

Department

inappropriately influenced the NOSB in violation of FACA and the APA; and (4) the
Department’s failure to comply with FACA § (5)(b) violates FACA and the APA.
Defendants counter that plaintiffs lack standing to bring any of these claims, and that the
suit must be dismissed for lack of standing. For the reasons set forth below, the court
agrees.2
In order to satisfy Article III’s standing requirement, individual plaintiffs, Marchese
and Goodman, must prove three elements: (1) they have suffered an “injury in fact” that
is both “concrete and particular” and “actual or imminent”; (2) that injury is “fairly
traceable” to defendants’ conduct; and (3) “the injury will [likely] be redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal

As explained at the outset, defendants also contend that plaintiffs’ claims are nonjusticiable, but
the court need not reach that issue in light of plaintiffs’ lack of standing.
2

7

citations omitted).

As an organization, Cornucopia may demonstrate standing by

establishing either standing to sue in its own right or standing to sue on behalf of its
members. To demonstrate standing to sue on its own behalf, Cornucopia must show the
same three elements as an individual asserting standing. See Havens Realty Corp. v. Coleman,
455 U.S. 363, 378-79 (1982). To demonstrate associational standing to sue on behalf of
its members, an organization must show: (1) its members would have standing to sue; (2)
“the interests it seeks to protect are germane to the organization’s purpose”; and (3) its
claims do not require participation of individual members. Hunt v. Wash. State Apple Adver.
Com’n, 432 U.S. 333, 343 (1977).
“At the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice.” Lujan, 504 U.S. at 561. To withstand a challenge to
standing on a motion to dismiss, the “plaintiff must plead sufficient factual allegations,
taken as true, that ‘plausibly suggest’ each of these elements.” Berger v. Nat’l Collegiate
Athletic Ass’n, 843 F.3d 285 (7th Cir. 2016). Accordingly, this opinion will exam the
allegations of injury in the complaint under each element.
I.

Injury
Plaintiffs Marchese and Goodman maintain that they suffered an Article III “injury

in fact” requirement in two way: (1) a procedural injury when Secretary Vilsack considered
and appointed Beck and Swaffar to the NOSB; and (2) a substantive injury as organic
producers when “[d]efendants’ activities weakened the integrity of the organic program
and its standards.” (Pl.’s Br. (dkt. #25) 10.)

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A. Procedural Injury
In claiming a procedural injury, plaintiffs rely heavily on Colorado Environmental
Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004).

In Wenker, two environmental

organizations and two individuals challenged the Secretary of the Interior’s appointments
to Resource Advisory Councils (“RACs”). The Interior Secretary is required by statute to
establish RACs for the purpose of providing recommendations to the Secretary and to the
Bureau of Land Management (“BLM”) regarding federal land use policy. Id. at 1226. In
March 2001, the BLM issued a call for nominations to fill 14 vacancies on three such
Colorado RACs. Id. By the closing date for nominations, the BLM had received 50
applications, including the applications of the two individual plaintiffs in Wenker that were
accompanied by a required letter of recommendation. Id. After the close of the nomination
period, however, the Colorado Governor submitted a letter listing 13 additional nominees
to fill the RAC vacancies. Id. That letter did not include any documentation in support
of the nominations or the letters of reference required by BLM regulations. Id. Perhaps
predictably, all 13 of the Governor’s nominees and only one of the 50 outside applicants
were appointed to RACs. Id. Needless to say, neither of the Wenker plaintiffs was that
one. The Tenth Circuit found that the individual plaintiffs had demonstrated procedural
standing based “upon denial of a fair opportunity to compete for a position,” because the
process had been inappropriately dominated by one interest group (the Governor).3 Id. at
1235-36.

Notably, the Wenker court affirmed dismissal of all other claims and both organizational plaintiffs.
353 F.3d at 1224.
3

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Here, plaintiffs allege that they were denied a fair opportunity to compete for a
position on the NOSB. In particular, plaintiffs argue “governmental barriers that make it
more difficult for a certain group to obtain a benefit” give rise to a procedural injury. (Pl.’s
Br. (dkt. #25) 14.) Unlike Wenker, however, they fail to specify what governmental barrier
impeded their applications to the NOSB. Nor have they alleged any facts indicating that
the process was dominated by one interest group.
Instead, plaintiffs contend that Secretary Vilsack violated the OFPA by considering
applicants who do not meet the statutory requirement for eligibility.4

Regardless of

whether that is true, consideration of more candidates, qualified or not, does not by itself
create a procedural injury to plaintiffs. Indeed, the Secretary would have to consider all
applications as a matter of procedural fairness in order to discern who was a qualified
candidate, especially where the claim of ineligibility is as nuanced as plaintiffs claim. Even
disregarding the obvious arbitrariness of accepting every nomination of a Governor, this by
itself distinguishes plaintiffs’ claims from those in Wenker, where the qualification could
not have been any less nuanced -- recommendation letter or no recommendation letter.5

Defendants contest plaintiffs’ claim that Beck and Swaffar fall outside the statutory language of
“individuals who own or operate an organic farming operation.” 7 U.SC. § 6518(b)(1).
4

Plaintiffs’ reliance on Bakke v. Board of Regents, 438 U.S. 265 (1978), is even less availing. Bakke
considered a challenge to the University of California-Davis’s affirmative action program, which
reserved 16 out of 100 overall spots for minority candidates, brought by an unsuccessful, majority
medical school applicant. The Court found that the injury giving rise to standing was not the denial
of admission itself, but rather the denial of the ability to compete for all 100 spots based on an
applicant’s race. Id. at 280 n.14. Plaintiffs have alleged no similar impediment on their ability to
compete for positions on the NOSB. The fact that defendants here considered, and ultimately
selected, candidates to whom plaintiffs object does not amount to a procedural injury conferring
legal standing.
5

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B. “Injury in Fact” Inquiry
All three plaintiffs allege injury stemming from a weakening of “the integrity of
organic food standards,” which in turn were supposedly caused by the challenged
appointments and changes to NOSB procedure.

(Am. Compl. (dkt. #17) ¶ 28.)

Underlying this claim of injury is plaintiffs’ contention that organic farmers suffer
reputational harm when “the organic certification label becomes less trustworthy in the
eyes of consumers and stakeholders due to action by USDA,” and as a result, organic
farmers suffer economic harm because consumers “are less likely to purchase organically
certified food when that label’s integrity has been compromised.” (Id. at ¶¶ 55, 56.)
Goodman and Marchese allege these reputational and economic injuries as organic farmers
themselves, while Cornucopia alleges them both on behalf of its members and as an injury
to its mission. Unfortunately for plaintiffs, however, the links between defendants’ alleged
misconduct and their alleged injuries are too attenuated and speculative to meet the
requirement of an “injury in fact.”
As for being too attenuated, plaintiffs essentially allege that appointments of 2
members of a 15 person board, along with certain procedural changes, have led to a greater
number of harmful substances remaining on the National List and to a weakening in the
meaning of the USDA organic certification, which then led consumers to place less value
on that certification and purchase fewer organic products, leading to economic harm to
organic farmers generally and plaintiffs specifically. Maybe so, but then again maybe not,
and the Supreme Court has already rejected a theory of standing that “relies on a highly
attenuated chain of possibilities,” because it is insufficient to demonstrate that injury was
“certainly impending.” See Clapper v. Amnesty Inter. USA, 568 U.S. 398, 133 S. Ct. 1138,
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1148 (2013); see also Metcalf v. Nat’l Petroleum Council, 553 F.2d 176, 185 (D.C. Cir. 1977)
(rejecting standing in a case where “appellants claim to have been injured on the theory
that the challenged structure of the NPC causes it to make certain biased
recommendations, which in turn causes government agencies to adopt policies favoring the
petroleum industry, which in turn cause the appellants to be injured”). Like Clapper,
plaintiffs’ chain of causation here is further weakened by its reliance on third parties’
discretionary acts, linking the defendants’ conduct to the alleged harm, by claiming that
consumers will chose to purchase different products as a result of the reputational harm to
organic products. 133 S. Ct. at 1150 (“[W]e have been reluctant to endorse standing
theories that require guesswork as to how independent decisionmakers will exercise their
judgment”); Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, No. 13-C-1214, 2014 WL
1056495 (E.D. Wis. Mar. 18, 2014) (finding that plaintiffs alleging harm arising from the
ACA tax scheme failed to establish standing by relying on the potential discretionary acts
of third party employers and consumers).
As for being too speculative, the complaint alleges both “reputational” and
“economic” harm arising out of an undermining of the integrity of organic food standards,
but alleges no facts at all supporting their claim that these injuries are occurring presently.
Indeed, the plaintiff’s use of the present tense in describing impacts is odd at best, and
other allegations elsewhere in the complaint seem to indicate any claim of current injury is
suspect at best. (See Am. Compl. (dkt. #17) ¶ 7) (“demand for organic food—free of
synthetic ingredients—continues to grow”).) The wording of plaintiffs’ other allegations
in the complaint regarding injuries are equally ambiguous as to whether they assert a
present or a future harm: “Cornucopia’s . . . members suffer a reputational harm . . . because
12

the organic certification becomes less trustworthy[;]” “consumers seeking organic produce
are less likely to purchase organically certified food when that organic label’s integrity has
been compromised.” (Id. at ¶¶ 55, 56 (emphasis added).) Any theory of “future injury is
too speculative to satisfy the well-established requirement that threatened injury is
certainly impending.” Clapper, 133 S. Ct. at 1143 (citing Whitmore v. Arkansas, 495 U.S.
149 (1990)) (emphasis in original).
Plaintiffs counter that courts have recognized the weakening of organic integrity as
a cognizable injury to a party that produces or consumes organic foods. For example, in
Harvey v. Veneman, 396 F.3d 28 (1st Cir. 2005), the First Circuit found an individual who
was a producer and consumer of organic products had standing to challenge regulations
that “weaken the integrity of the organic program.” Id. at 34. In Harvey, the plaintiff was
challenging the Secretary of Agriculture’s publication of a final rule related to organic
labeling because it included “loopholes concerning nonorganic ingredients and synthetic
substances” and “exemptions for wholesalers and distributors.” Id. at 32. In Mass. Indep.
Certification, Inc. v. Johanns, 486 F. Supp. 105 (D. Mass. 2007), the court considered an
organic certifying agent’s challenge to a regulation after being denied the right to appeal
USDA organic certifications with which the agent disagreed. Based on Harvey, the court
found that this weakening in the “‘integrity’ of the organic program” was a cognizable
injury, in part because the scheme would “force [the certifying agent] to affix its
certification to products that it believes do not meet the requisite standards.” Id. at 115.
In each of these cases, the nexus between the defendants’ conduct and the plaintiffs’ injury
is immediate -- neither Harvey nor Johanns depended on an attenuated chain of speculative
events that plaintiffs present here. Rather, the alleged harm to organics in those cases arose
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directly from an agency regulation and created an imminent injury to the plaintiffs.
Finally, plaintiffs here point to Center for Food Safety v. Vilsack, No. 15-cv-01590,
2016 WL 4698901 (N.D. Cal. Sept. 8, 2016), in which organizational plaintiffs challenged
the changes to the NOSB Sunset Review provisions. Although the district court briefly
addressed and found a substantive injury arising from these changes, the bulk of the court’s
injury analysis focused on plaintiff’s perceived procedural injury by being denied the
opportunity for notice and comment prior to changes in the rule. Id. at *3-5. In the present
case, plaintiffs do not challenge a lack of notice and comment specifically, but rather the
two contested appointments and USDA’s alleged undue influence. Plaintiffs’ reliance on
Center for Food Safety again fails to address the attenuated connection between this alleged
misconduct and the claimed injury here.
Cornucopia’s claim that defendants’ behavior led to a drain on its resources fares
no better than its claims of broader economic and reputational harm. Cornucopia alleges
that it spends around $600 per National List substance it reviews, at an annual expense to
the organization of approximately $100,000. (Am. Compl. (dkt. #17) ¶ 43.) Cornucopia
does not specifically allege the amount by which this expense has changed as a result of
defendants’ conduct, simply that “the greater number of chemicals remaining on the
National List places a drain on Cornucopia’s resources by increasing the number of
chemicals Cornucopia has to review,” and “[t]he fact that unqualified persons sit on the
NOSB in seats reserved for organic farmers exacerbates the harms to Cornucopia from the
increased number of chemicals remaining on the list.” (Id. at ¶¶ 42, 44.)
Unless the harm plaintiffs seek to avoid is “certainly impending,” plaintiffs’ claim
of standing “because they incurred certain costs as a reasonable reaction to a risk of harm
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is unavailing.” Clapper, 133 S. Ct. at 1151. Cornucopia states that it considers its “ability
to review each of the substances up for review for the Board and advise its members”
essential to its mission. (Am. Compl. (dkt. #17) ¶ 41.) Even so, it appears that the
underlying harm it seeks to avoid depends on the same attenuated chain noted previously.
Because Cornucopia has not established a “certainly impending” injury, therefore, its
choice to expend more resources does not create an injury in fact.
This distinction differentiates the present case from Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982), in which the Supreme Court found that a fair housing organization
had standing to sue owners and employees of apartment complexes that had allegedly
engaged in racially discriminatory “steering” practices. In that case, the Court was satisfied
with proof that the defendants’ “steering practices have perceptibly impaired HOME’s
ability to provide counseling and referral services for low- and moderate-income
homeseekers,” which resulted in “the consequent drain on the organization’s resources[.]”
Id. at 379. This was, however, a drain on resources that results from an existing harm,
which is a cognizable injury for standing purposes, while the discretionary use of resources
in the face of a potential harm is not. See also Ctr. for Law & Educ. v. U.S. Dept. of Educ.,
315 F. Supp. 15, 24 (D.D.C. 2004) (agency policy choices that require advocacy
organizations to expend more resources in pursuit of their objectives is not an injury in fact
“without concrete and demonstrable injury to the groups’ activities”).
Because plaintiffs are only able to allege attenuated, and ultimately speculative,
injuries from defendants’ alleged misconduct, they have failed to establish legal standing
here.

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II.

Fairly Traceable
For several of the same reasons, plaintiffs’ causal chain fails to demonstrate that the

alleged injury is “fairly traceable” to the alleged misconduct. First, in Credit Union Nat’l
Ass’n, Inc. v. AICPA, Inc., 832 F.2d 104 (7th Cir. 1987), the Seventh Circuit noted that
even if no particular link in plaintiff’s chain of causation was particularly problematic, the
overall length of the chain made it “impossible to trace concrete injury to the AICPA’s
decision[.]” Id. at 106-07. Here, as discussed already, plaintiffs allege that the challenged
appointments have led to a weakening in the reputation and economic value of organic
labeling. To reach that result, the court must accept a chain of allegations and inferences:
that Swaffar’s and Beck’s two votes were decisive among thirteen others on the National
Standards Board in keeping certain chemicals on the National List; that those two votes
were different from how a typical organic farmer would have voted; that the Secretary
adopted the recommendations of the NOSB; that these additional chemicals on the
National List are detrimental to the reputation of the USDA organics programs; that
consumers are aware and disapprove of these choices; and that consumers chose to buy
fewer organic products as a result.
Plaintiffs’ claims regarding USDA’s undue influence over the NOSB suffer the same
deficiency. In order to find plaintiffs’ injuries fairly traceable to the alleged misconduct
(including the changes to the Sunset Review provision and elimination of the Policy
Development Subcommittee), the court must again accept a chain of allegations and
inferences: that the additional chemicals that remain on the National List as a result of the
changes are detrimental to the organics program; that the changes have caused the NOSB
to fail to protect the interests of organic farmers and consumers; that consumers are aware
16

and disapprove of these failings; that consumers chose to buy fewer organics products as a
result; and that therefore plaintiffs suffer economic harm. As in Credit Union National
Association, the length of plaintiffs’ causal chains makes impossible to trace plaintiffs’
injuries to defendants’ alleged conduct.
Second, plaintiffs rely on the discretionary acts of third parties to link the
defendants’ conduct to their alleged injury. More specifically, they allege that defendants’
conduct has caused significant numbers of consumers to choose to purchase fewer organics.
A plaintiffs’ causal chain is weakened where it “depends upon countless individual
decisions.” Shakman v. Dunne, 829 F.2d 1387, 1397 (7th Cir. 1987).
III.

Likely to be Redressed
The third requirement of standing is “a likelihood that the injury can be redressed

by a favorable decision.” Perry v. Sheahan, 222 F.3d 309, 314 (7th Cir. 2000). As it relates
to the Beck and Swaffar appointments, plaintiffs’ allegations do not demonstrate that their
injuries would be redressed by the relief sought. Even if the court ordered the Secretary to
remove Beck and Swaffar from the board, there would be no assurance that a differently
comprised NOSB would vote more consistently with plaintiffs’ ideals. Likewise, even if
the court ordered the previous Sunset Review rules and the Policy Development
Subcommittee reinstated, there would be no assurance that the NOSB would vote more
consistently to remove substances to which plaintiffs object. Moreover, because plaintiffs
have not shown that their alleged injuries are fairly traceable to defendants’ alleged
misconduct, the likelihood appears even more remote that their alleged injuries will be
redressed by the specific remedies sought.
17

Because they have not shown (1) a procedural injury or other injury in fact that (2)
is fairly traceable to defendants’ conduct and (3) is likely to be redressed by the relief
sought, neither Marchese, Goodman, nor Cornucopia have standing to sue on their own
behalf. In addition, because Cornucopia’s claims on behalf of other of its members would
suffer the same deficiencies, Cornucopia lacks associational standing to bring these claims
as well. Therefore, the court grants defendants’ motion to dismiss for lack of subject matter
jurisdiction.

ORDER
IT IS ORDERED that defendants’ motion to dismiss for lack of subject matter
jurisdiction (dkt. # 23) is GRANTED. The clerk of court is directed to close this case.
Entered this 23rd day of May, 2017.
BY THE COURT:
/s/
__________________________________________
WILLIAM M. CONLEY
District Judge

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