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Center for Food Safety v. Hamburg

United States District Court, Ninth Circuit

October 21, 2013

CENTER FOR FOOD SAFETY, et al., Plaintiffs,


PHYLLIS J. HAMILTON, District Judge.

Now before the court is the motion of defendant Margaret A. Hamburg, M.D., for a stay pending appeal. Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the court hereby DENIES defendant's motion for the following reasons.


On August 29, 2012, plaintiffs Center for Food Safety and Center for Environmental Health brought an action against defendant Margaret Hamburg, M.D., Commissioner of the U.S. Food and Drug Administration ("FDA"). Plaintiffs' action concerns the Food Safety and Modernization Act of 2010 (FSMA), which directs the FDA to promulgate specific food safety rules by certain deadlines. After the FDA missed the deadlines for seven of these rules, including the July 4, 2012 deadline for an intentional adulteration rule, plaintiffs sought declaratory and injunctive relief.

In the course of litigation, the parties submitted cross-motions for summary judgment. On April 22, 2013, the court granted plaintiffs' motion and denied the FDA's motion. The court found that the FDA had violated the FSMA and the Administrative Procedures Act ("APA") by failing to promulgate the rules by their statutory deadlines. The court reserved the issue of the scope of injunctive relief for a later date.

The court fleshed out the injunctive relief in an order filed on June 21, 2013. In that order, the court required the FDA to (1) publish a notice of proposed rulemaking (NPRM) for each of the rules by November 30, 2013; (2) close the post-NPRM comment periods by March 31, 2014; and (3) issue final regulations by June 30, 2015.

On July 19, 2013, the FDA filed a motion seeking reconsideration or stay of this timeline as applied to two of the rules - the sanitary transport and intentional adulteration rules. On August 13, 2013, the court granted the motion in part and denied it in part. The court permitted the FDA sixty additional days to issue an NPRM for the sanitary transport rule, and the court pushed back the deadline to close the comment period for that rule sixty days as well. But the court left intact the original timeline for the intentional adulteration rule.

On September 12, 2013, the FDA filed a notice of appeal of the June 21 and August 13 orders. The next day, on September 13, 2013, the FDA moved for a stay pending appeal of the requirement in these orders that it issue the intentional adulteration rule's NPRM by November 30, 2013.


A. Legal Standard

A court may stay previously awarded injunctive relief if that injunctive relief is pending appeal. Fed. R. Civ P. 62(c). Granting a stay is "an exercise of judicial discretion." Virginia Ry. Co. v. United States , 272 U.S. 658, 672 (1926). The party requesting a stay bears the burden of convincing a court to exercise that discretion. Nken v. Holder , 556 U.S. 418, 433-34 (2009). The court's discretion is guided by four factors: (1) whether the movant has made a strong showing that it is likely to succeed on the merits; (2) whether the movant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill , 481 U.S. 770, 776 (1987).

"The first two factors of [this] standard are the most critical." Nken , 556 U.S. at 434. As for the first factor, a "strong showing" does not require showing success is more likely than not, but rather that there is a "reasonable probability" or "a substantial case for relief on the merits." Lair v. Bullock , 697 F.3d 1200, 1204 (9th Cir. 2012). In contrast, the second factor has a higher burden in that there must be a probable or anticipated irreparable injury to the applicant if the injunction is kept in place but found erroneous on appeal. Id. at 1215. "Irreparable injury" means an injury that cannot be adequately measured or compensated by money. Amoco Prod. Co. v. Village of Gambell, AK , 480 U.S. 531, 545 (1987).

B. The FDA's Motion for Stay Pending Appeal

The FDA requests a stay as to one facet of the court's order granting injunctive relief: the November 30, 2013 deadline for an NPRM on intentional adulteration. Absent a stay, however, this ...

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