“Eggshell Plaintiffs” Meet Administrative Deference: Ninth Circuit Affirms Dismissal of Proposed Chicken Shed Rule

Some lawyers old enough to remember carbon paper may also remember, in their archaic law school teaching, the “eggshell plaintiff” rule, accurately described as “a maxim that a tort defendant takes his victim as he finds him.” Also referred to as the “eggshell skull rule,” the principle is named after “an imaginary person who has an extremely thin skull that is as fragile as an eggshell.”  When this imaginary person is hit in the head with a blow that would have only bruised a normal person, he dies. The eggshell plaintiff rule holds “that the person who hit the eggshell-skulled person is responsible for the much greater harm caused by the death, not just the amount of harm that a normal person would have suffered.” Id.

A different type of eggshell plaintiff (or, more precisely, a “shell egg” plaintiff) brought a case to try to get various federal agencies to create regulatory rules requiring distributors of fresh eggs to label their cartons with information about the chickens’ shed conditions: required disclosure would specify whether the eggs were from “free-range” hens, from “cage-free” hens, or “from caged hens.” (The author of this blogpost uses the term “shed” advisedly, stretching to support the blogpost subtitle.) Lead plaintiff Compassion Over Killing (a nonprofit organization) tried to get FDA, FTC, Agricultural Marketing Service, or Food Safety and Information Service to require this kind of labeling. None of the agencies complied.

Plaintiffs sued. District Court rejected suit. Ninth Circuit affirmed. Plaintiffs maintained that FDA’s rejection of their proposed rule was arbitrary and capricious, because, they said, “scientific evidence” shows that “egg-laying hens’ living conditions increase the risk of Salmonella-contamination and negatively affect the nutritional value of the eggs.” In commonplace deference to administrative agencies, the Court decided not to “second guess the FDA’s conclusion that these studies were insufficiently reliable.” The Court also held that the “FDA’s explanation for denying Plaintiffs; rulemaking petition barely meets” the “low burden” for administrative agencies rejecting rule-making proposals in these circumstances: the agency “must, at a minimum, clearly indicate that it has considered the potential problem identified in the petition and provide a ‘reasonable explanation as to why it cannot or will not exercise its discretion’ to initiate rulemaking.”

Omelet you review the decision yourself to see eggsactly the other reasons that the case was dismissed.