United States District Court, N.D. California, Oakland Division
February 25, 2014
CENTER FOR FOOD SAFETY, et al., Plaintiffs,
MARGARET A. HAMBURG, M.D., Defendant.
GEORGE A. KIMBRELL, (Pro Hac Vice) PAIGE M. TOMASELLI, RACHEL A. ZUBATY, San Francisco, CA, Center for Food Safety Counsel for Plaintiffs.
STUART F. DELERY, Assistant Attorney General, MAAME EWUSI-MENSAH FRIMPONG, Deputy Assistant Attorney General, MICHAEL S. BLUME, Director, Consumer Protection Branch, GERALD C. KELL, Senior Trial Counsel Consumer Protection Branch U.S. Department of Justice, Washington, DC, Counsel for Defendant.
FEE STIPULATION AND ORDER
PHYLLIS J. HAMILTON, Judge.
IT IS HEREBY STIPULATED AND AGREED by and between the Plaintiffs on the one hand (the Center for Food Safety and the Center for Environmental Health) and the Defendant on the other (Dr. Margaret A. Hamburg, Commissioner, U.S. Food and Drug Administration); and
IT IS HEREBY ORDERED, by this Honorable Court, that the Center for Food Safety, as counsel for Plaintiffs, having received an assignment from all the Plaintiffs in this action of their respective rights to seek or recover fees, expenses, and costs in this action, is to be awarded the sum of $340, 000 in attorneys' fees, expenses, and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
Within sixty (60) days after the Court endorses and "so orders" this Stipulation, the U.S. Food and Drug Administration (FDA) and/or the Department of Health and Human Services (HHS) shall remit the amount of $338, 847.70 to the Center for Food Safety in full satisfaction of Plaintiffs' fees and expenses. Such amount shall be remitted by Electronic Funds Transfer to an account to be specified by counsel for the Plaintiffs, and said counsel shall provide to counsel for the Defendant, within five business days after the Court endorses and "so orders" this Stipulation, all information necessary for the agency to effectuate the Electronic Funds Transfer.
In addition, within ten days after the Court endorses and "so orders" this Stipulation, the Department of Justice will submit a request to the Judgment Fund for immediate payment of $1, 152.30 to the Plaintiffs in full satisfaction of Plaintiffs' claim for costs incurred in this matter. Assuming that the United States Treasury officials who administer the Judgment Fund determine that payment of the settled costs is properly made from the Judgment Fund, payment will be made either by a United States Treasury check, payable to the Center for Food Safety, or by an Electronic Funds Transfer.
The payments described in the preceding paragraphs shall be the full and final settlement of any and all claims that any of the Plaintiffs, or any of their current or former attorneys, or any of their respective heirs, executors, successors, and assigns, may now have or may hereafter acquire against the Defendant or against FDA, HHS, or the United States of America, pursuant to any statute or rule or regulation, for attorneys' fees, expenses, or costs incurred in connection with this action, with the exception of any future action brought to enforce the consent decree entered by the Court. Other than what is specifically set forth in this Stipulation, the Plaintiffs and their counsel expressly waive and release the Defendant, FDA, HHS, and the United States of America from all claims and liability for attorneys' fees, expenses, and costs that Plaintiffs or their current or former counsel may now have or may hereafter acquire in connection with any and all claims and causes of action that were or have been asserted in this action, or concerning any of the matters alleged in this action, with the exception of any future action brought to enforce the Consent Decree entered by the Court. "Future action[s] brought to enforce the Consent Decree" includes but is not limited to Plaintiffs' right to seek further EAJA reimbursement in the event that: (1) Defendant moves the Court for an extension of time for one or more of the FSMA rulemaking deadlines established by the Consent Decree; (2) Plaintiffs disagree that such an extension is warranted and file an opposition to Defendant's motion; and (3) the Court denies Defendant's motion.
This Stipulation shall not be construed to include a finding or concession that the position of the Defendant or her counsel in this litigation was not substantially justified, or that the Defendant is liable as a matter of law for the payment of any attorneys' fees, expenses, or costs. The provision for attorneys' fees, expenses, and costs in this Stipulation is solely by agreement of the parties and shall not serve as precedent in any other case.