Californians for Humane Farms v. Schafer et al

Filing 29

STIPULATED SETTLEMENT AND DISMISSAL OF ACTION; Signed by Judge Marilyn Hall Patel on 10/9/2008. (awb, COURT-STAFF) (Filed on 10/10/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CALIFORNIANS FOR HUMANE FARMS 1545A Powell Street San Francisco, CA 94133 Plaintiff, v. ED SCHAFER, Secretary United States Department of Agriculture 1400 Independence Avenue, S.W. Washington, DC 20250, Defendant. Civ. No. 08-03843 (MHP) Administrative Procedure Act Case Joint Stipulation and Settlement Agreement Providing for Dismissal of Claims JOINT STIPULATION AND SETTLEMENT AGREEMENT PROVIDING FOR DISMISSAL OF CLAIMS On August 12, 2008, Plaintiff filed a lawsuit under the Administrative Procedure Act ("APA") challenging the decision of the Secretary of the United States Department of Agriculture, Ed Schafer (the "Secretary") to approve the American Egg Board's revised 2008 annual budget and authorize officials of the Egg Board to disburse funds pursuant to that budget for certain advertising and promotional purposes alleged by Plaintiff to be unlawful. The United States Department of Agriculture ("USDA") denies Plaintiff's allegations and contends that the expenditures and ads at issue in this case are lawful. On August 18, 2008 Plaintiff filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction seeking to prevent any and all expenditure of -1- JOINT STIPULATION AND SETTLEMENT AGREEMENT PROVIDING FOR DISMISSAL OF CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the funds at issue prior to the November 4, 2008 election. After considering the parties' respective briefs and oral argument, the Court entered a preliminary injunction on September 29, 2008 prohibiting the USDA, the American Egg Board, and their employees and agents from among other things, authorizing expenditures prior to November 5, 2008 to support activities specifically or substantially targeted at California, and/or activities that may affect voter opinion on the ultimate disposition of California Proposition 2. (See Order filed on September 29, 2008 for a complete description of the injunction and the activities enjoined). The parties have since reached a subsequent agreement that will, by its terms and execution, allow for the prompt dismissal after November 5, 2008 of all claims pending before the Court. Specifically, it is hereby stipulated and agreed between the parties, after full and open discussion, that the above-captioned action be settled and compromised on the following terms: 1. The Secretary shall comply with the preliminary injunction entered in the Court's Order filed on September 29, 2008, and shall not seek any appellate review of the preliminary injunction or Order. The parties each agree to bear their own costs and attorneys' fees incurred in preparing for or litigating the abovecaptioned action, and that neither party will request such costs or attorneys' fees from the Court. 2. In consideration for this Joint Stipulation and Agreement and upon the Secretary's compliance with the terms of paragraph 1, Plaintiff agrees that its counsel will execute and e-file a Stipulation of Dismissal and Proposed Order requesting that the entire above-captioned action be dismissed with prejudice consistent with the terms of this Joint Stipulation and Agreement within two (2) business days of November 5, 2008. 3. The Defendant's time for filing a responsive pleading in this action is hereby extended 60 days. -2- JOINT STIPULATION AND SETTLEMENT AGREEMENT PROVIDING FOR DISMISSAL OF CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. The parties acknowledge that neither this Joint Stipulation and Agreement, nor anything herein constitutes an admission of liability or fault on the part of the Secretary, the USDA, or any of their past and present officials, agents, employees, attorneys, or insurers. The parties enter this Joint Stipulation and Agreement for the purpose of compromising disputed claims and avoiding further litigation. 5. The Secretary represents and agrees that he controls the activities and expenditures of the American Egg Board that are at issue in this case, and that he will require the Egg Board to comply with the terms of this Joint Stipulation and Agreement. 6. Counsel for Plaintiff has been authorized by all parties to execute and file this Joint Stipulation and Agreement on behalf of all parties. Dated: October 8, 2008 Respectfully submitted, /s/ Julie A. Arbuckle ____________________________ JOSEPH P. RUSSONIELLO, United States Attorney (CABN 44332), JOANN M. SWANSON, Chief, Civil Division (CABN 88143) JULIE A. ARBUCKLE, Assistant United States Attorney (CABN 193425) 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7102 Facsimile: (415) 436-6748 Email: julie.arbuckle@usdoj.gov Attorneys for Defendant Ed Schafer, Secretary, United States Department of Agriculture /s/ Peter A. Brandt _____________________________ PETER A. BRANDT (CABN 241287) JONATHAN R. LOVVORN (CABN 187393) 2100 L Street, NW Washington, DC 20037 Telephone: (240) 388-5023 Facsimile: (202) 778-6132 Email: pbrandt@hsus.org Attorneys for Plaintiff Californians for Humane Farms -3- JOINT STIPULATION AND SETTLEMENT AGREEMENT PROVIDING FOR DISMISSAL OF CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PURSUANT TO THE ABOVE STIPULATION AND SETTLEMENT AGREEMENT, APPROVED AND SO ORDERED: 9 Dated: October ___, 2008: UNIT ED S S DISTRICT TE C TA ER N D IS T IC T R OF -4- JOINT STIPULATION AND SETTLEMENT AGREEMENT PROVIDING FOR DISMISSAL OF CLAIMS A C LI FO arilyn Judge M l H. Pate R NIA DERED SO OR District Judge IS ITUnited States RT U O NO RT H

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