Heine et al v. Vilsack et al

Filing 61

STIPULATION and ORDER for Dismissal of Action, signed by District Judge Anthony W. Ishii on 5/28/15. CASE CLOSED. (Verduzco, M)

1 BENJAMIN B. WAGNER
United States Attorney
2 BENJAMIN E. HALL
Assistant United States Attorney
3 2500 Tulare Street, Suite 4401
Fresno, CA 93721
4 Telephone: [phone]
Facsimile: [phone]
5
6 Attorneys for Defendants
7

8
9

IN THE UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
Case No. 1:12-cv-01992-AWI-SMS

12 David Shayne Heine, California Veal Tech, Inc.
a California corporation,
13
Plaintiffs,
14
v.
15
Tim Vilsack in His Official Capacity as United
16 States Secretary of Agriculture, United States
Department of Agriculture, United States
17 Department of Agriculture Food Safety and
Inspections Service, Yudhbir Sharma, DVM,
18 USDA Employee Known Only as “Dr. Pannu,”
USDA Employee Known only as “Ken,”USDA
19 Employee Known only as “Dr. Redding,”
USDA Employee Known Only as “Dr.
20 Henley,” Dr. Amy Lieder, Penny Patrali and
DOES 1-100 inclusive,
21
Defendants.
22
23

STIPULATION AND ORDER FOR
DISMISSAL OF ACTION

The parties to this action, by and through their undersigned attorneys of record, hereby

24 stipulate and agree as follows:
25
26

RECITALS
A.

Plaintiff David Shayne Heine (“Heine”) is owner of a sole-proprietorship business

27 entity alternately called “Shayne’s Custom Calves” and “Cal Veal” and through these entities he
28 purchases unwanted calves from dairies in California and transports said calves to federally1

1 inspected meat slaughter and processing facilities in California. The calves are to be slaughtered and
2 processed to provide food for human consumption.
3

B.

The Food Safety and Inspection Service (“FSIS”) is the agency of the United States

4 Department of Agriculture (“USDA”) charged with the responsibility of enforcing the requirements
5 of the Federal Meat Inspection Act. Pursuant to this authority, FSIS administers the food safety
6 inspection programs at federally-inspected slaughter and processing facilities which slaughter and
7 process veal calves in the United States, including the State of California. As part of this inspection

8 program, FSIS inspection program personnel conduct in-plant screening tests of meat samples at
9 such facilities when they suspect an animal presented for slaughter may have violative levels of
10 antimicrobial drug residues.
11

C.

A dispute has arisen between Heine and USDA regarding the application of FSIS’s

12 meat inspection regulations to calves delivered by Heine to federally-inspected meat processing
13 facilities. Plaintiff Heine contends that FSIS, through its employees, has treated calves delivered by
14 Heine to federally-inspected slaughter and processing facilities differently than calves delivered for

15 slaughter and processing by other persons. Defendants deny that contention and deny that Plaintiffs
16 are entitled to any relief under the claims alleged in the Third Amended Complaint filed in this
17 action. In order to clarify the federal regulatory requirements for the slaughter and processing of
18 veal calves at federally-inspected facilities at issue in this litigation, resolve this action, and avoid the
19 expense and uncertainty of further litigation without any admission of fault or liability, the parties
20 stipulate as follows:
STIPULATION

21
22

1.

The parties stipulate and agree that the slaughter and processing of veal calves

23 intended for human consumption is regulated by the Federal Meat Inspection Act (21 U.S.C. §§601
24 et seq., as amended) and the regulations promulgated by FSIS pursuant to the authority of the FMIA,
25 i.e., Title 9 of the Code of Federal Regulations, Sections 300-end, including without limitation 9
26 CFR Sections 310.21, 309.13 and 309.16. A true and correct copy of the current version of 9 CFR §
27 310.21 (“Carcasses suspected of containing sulfa and antibiotic residues; sampling frequency;
28 disposition of affected carcasses and parts”) is attached to this Stipulation as Exhibit A and
2

1 incorporated herein by reference. A true and correct copy of the current version of 9 CFR § 309.13
2 (“Disposition of condemned livestock”) is attached to this Stipulation as Exhibit B and incorporated
3 herein. A true and correct copy of the current version of 9 C.F.R. § 309.16 (“Livestock suspected of
4 having biological residues”) is attached as Exhibit C and incorporated herein. FSIS inspection
5 program personnel have an obligation to conduct inspection activities in accordance with the FSIS
6 regulations.
7

2.

FSIS Directive 10,800.1, Rev. 1, provides instructions to FSIS inspection program

8 personnel (IPP) on selecting animals and performing chemical residue sample collection and testing
9 procedures, including veal calves. Directives are instructions written to FSIS employees to
10 implement FSIS policies and procedures under the authority of the FMIA. Directives remain in
11 effect for an indefinite period of time and are primarily administrative in nature. Directives may be
12 revised without notice and are not subject to notice and comment rulemaking. A true and correct
13 copy of FSIS Directive 10,800.1, Rev. 1 (“Residue Sampling, Testing and Other Verification
14 Procedures under the National Residue Program for Meat and Poultry Products”), which is currently

15 in effect, is attached to this Stipulation as Exhibit D and incorporated herein by reference. FSIS
16 inspection program personnel have a responsibility to follow the procedures contained in this
17 directive until revised.
18

3.

Nothing in this Stipulation and Order creates any obligations or responsibilities that

19 do not already exist under current law.
20

4.

The parties stipulate and agree that the above-captioned action should be dismissed

21 without prejudice as to all parties and causes of action, each party to bear its own attorneys’ fees and
22 costs.
23 Dated: May 27, 2015

BENJAMIN B. WAGNER
United States Attorney

24
25

By:

/s/ Benjamin E. Hall
BENJAMIN E. HALL
Assistant United States Attorney

26
27
28
3

1
2 Dated: May 27, 2015

/s/ Scott C. Safian
SCOTT C. SAFIAN
Director, Enforcement and Litigation Division
Office of Investigation, Enforcement and Audit
Food Safety and Inspection Service

3
4
5
6 Dated: May 26, 2015

THE ZUMWALT LAW FIRM, APC.

7

8

By:

/s/ Graham S. Lopez
GRAHAM S. LOPEZ
Attorneys for Plaintiffs

9
10
11
12 Dated: May 26, 2015

/s/ David Shayne Heine
DAVID SHAYNE HEINE
Plaintiff

13
14

15

ORDER
IT IS SO ORDERED. This action is hereby DISMISSED without prejudice, and the case

16 shall be administratively closed.
17
18 IT IS SO ORDERED.
19
20

Dated: May 28, 2015
SENIOR DISTRICT JUDGE

21
22
23
24
25
26
27
28
4