Ag Secretary Vilsack, Food Safety Deputy Eskin in court defense of new hog inspection program

On the same day that a federal judge in Minnesota issued an order slowing line speeds under the New Swine Inspection Program, attorneys for USDA in California filed a cutting 45-page answer to an amended complaint by other plaintiffs also wishing to bring down the program.

Filed in U.S District Court for the Northern District of California, USDA responded for Secretary of Agriculture Tom Vilsack and Deputy Under Secretary for Food Safety Sandra Eskin.

“At the outset, defendants object to plaintiffs’ Second Amended Complaint for failing to set forth a short and plain statement of the claims showing that plaintiffs are entitled to relief, as required by Federal Rule of Civil Procedure 8(a)(2).

“Plaintiffs have set forth 369 numbered paragraphs spanning 76 pages, which, to a large extent, do not contain allegations of fact. Rather, they set forth legal argument and rhetoric unnecessary and inappropriate for a complaint.

“Defendants are unable to admit or deny paragraphs containing such argument and rhetoric. Furthermore, defendants deny plaintiffs’ repeated characterizations of and partial quotations from statutes, regulations, and other documents, as these documents speak for themselves. Should the court desire a further response to plaintiffs’ argument, rhetoric, characterizations of documents, and partial quotations from documents, Defendants respectfully reserve the right to amend this Answer.”

The fact that the new Secretary of Agriculture and his top deputy for food safety were defending the new swine inspection program in California on the same day it was taking a hit in Minnesota is significant. Their response says the “Defendants deny any and all allegations in the Second Amended Complaint not expressly admitted herein to which a response is deemed required.”

USDA’s Food Safety and Inspection Service (FSIS) adopted the final modernization rule for swine in October 2019. The lawsuits followed in 2020. The United Food and Commercial Workers (UFCW) unions sued in the U.S. District Court for Minnesota.

Federal Judge Joan N. Ericksen, on March 31, issued an opinion limiting line speeds to 1,106 hogs per hour but leaving the remainder of the modernization program intact. She also or delayed her order by 90 days. That means it won’t become effective until around July 1.

The Center for Food Safety, the Humane Farming Association, Food and Water Watch, and pork consumer Robin Mangini are plaintiffs in the Northern California case. They sued USDA in January 2020, claiming the New Swine Inspection System (NSIS) amounts to a “radical transformation” of federal swine inspection protocols.

Parties in the Nothern California case are proceeding with a case management conference, first scheduled for April 16. They’ve agreed to the re-scheduled conference to occur no later than July 22, 2021.

Federal Judge Jeffrey S. White has set the ground rules. He believes each party will likely file one motion for summary judgment.

He said if the parties file cross-motions for summary judgment, they shall meet and confer to determine the order of filing and only admit four briefs to the court for its review:

1. Opening summary judgment motion
2. Opposition and cross-motion.
3. Reply to moton and opposition to cross-motion,
4. Reply to cross-motion (filed at least two weeks before hearing.)

White reminded the parties that they are responsible for disclosing information and management discovery disputes. At this time, the judge is not referring the matter to Alternative Dispute Resolution or ADR.

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