Opinion
Nos. C 96-4486 CW, C 01-4609 CW (Consolidated).
February 3, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs the Veal Connection Corporation, d/b/a Velasam, and its owners, Simon Samson and Johanna Samson, brought this action against Defendant United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2401(b), 2671-80 (FTCA). Plaintiffs operate a meat-processing facility which is subject to inspection by the Food Safety and Inspection Service (FSIS), an agency of the United States Department of Agriculture (USDA). In their complaint, Plaintiffs assert that the United States is liable under the FTCA because FSIS officials interfered or attempted to interfere with Plaintiffs' rights, as secured by the California constitution, through threats, intimidation, or coercion. This claim was tried to the Court beginning March 3, 2003. The Court hereby enters its findings of fact and conclusions of law.
Plaintiffs also alleged that the United States was liable under the FTCA because FSIS officials acted with negligence and/or gross negligence. In an Order dated January 22, 2003, the Court dismissed those claims based on a lack of subject matter jurisdiction.
In addition to bringing an FTCA claim against the United States, Plaintiffs brought suit against several individual FSIS officials, alleging that the individual Defendants retaliated against Plaintiffs for Plaintiffs' exercise of their First Amendment rights.
In an Order dated December 12, 2001, the Court granted in part the individual Defendants' motion for summary judgment, ruling that as to certain alleged instances of retaliation Plaintiffs had failed to offer sufficient evidence to create a dispute of material fact as to whether the individual Defendants intended to retaliate against Plaintiffs. At the pre-trial conference for both actions, the Court ruled that Plaintiffs were not entitled to assert that Defendant United States was liable pursuant to the FTCA for the same incidents that the Court had previously ruled that Plaintiffs had failed to demonstrate were retaliatory. Therefore, the Court will not address such incidents in its findings of fact.
At the same time that this action was tried to the Court, Plaintiffs' claims against individual FSIS officials were tried to a jury. The jury found that Defendants Michael McGovern, Charles Riddle, and Paul Thompson conspired to violate Plaintiffs' constitutional rights and awarded Plaintiff Velasam $1,750,000 in damages. Plaintiffs' FTCA claim, however, was tried to the Court, as required by the FTCA. 28 U.S.C. § 2402 (providing that FTCA actions "shall be tried by the court without a jury). The Court is not bound by the jury's factual findings.See Matthews v. CTI Container Transport Int'l Inc., 871 F.2d 270, 279-80 (2d Cir. 1989) (considering an analogous provision of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1441(d), and concluding that a court conducting a bench trial pursuant to the provisions of the FSIA is not required to follow the verdict of the jury because the waiver of immunity that allows suit is conditioned upon trial to a Court).
FINDINGS OF FACT
I. Background
Plaintiffs Simon Samson and Johanna Samson own and operate Plaintiff the Veal Connection Corporation, d/b/a Velasam. Velasam is a meat processing facility located in Petaluma, California. Velasam primarily produces specialty veal products that it sells to high end hotels.
The FSIS is an agency of the USDA charged with ensuring that meat products are safe, wholesome, and properly labeled. The FSIS Inspection Program carries out the USDA's food safety responsibilities through intensive in-plant slaughter and processing inspection programs. FSIS inspectors who observe deficiencies at meat-processing plants document those deficiencies on a Process Deficiency Report (PDR). Meat processing facilities are required to respond to such PDRs. FSIS officials are authorized to withhold inspection from an establishment "whether the sanitary conditions are such that its products are rendered adulterated." 9 C.F.R. § 305.5(a). FSIS officials are likewise authorized to suspend inspection at an establishment when someone at the establishment "threatens to forcibly assault, or forcibly assaults, intimidates or interferes with any FSIS employee in or on account of the performance of his official duties." 9 C.F.R. § 305.5(b) 335.20. Without inspections, a plant cannot legally process meat.
II. Velasam's Record as a Meat Processing Establishment
Velasam was originally granted meat inspection in June, 1983. In October, 1993, Velasam was placed in Progressive Enforcement Action (PEA) as a result of repeated deficiencies in operational sanitation, personal hygiene practices, pest and rodent control, and product storage. Velasam was removed from PEA in January, 1994. However, Velasam was again placed in PEA from November, 1994 until March, 1995 as a result of deficiencies in the sanitation of facilities and equipment, personal hygiene practices, and the receiving and control of incoming products and materials.
III. August and September, 1995 PDRs and Withholding of Inspection
During August and September, 1995, FSIS Inspector Marlene Stewart was assigned to inspect Velasam. During that time period, she issued several PDRs to Velasam and withheld inspection for a four day period in August.
IV. Initial Complaints
Simon Samson believed that the PDRs and withholding of inspection were inappropriate and therefore complained to several of Stewart's supervisors at FSIS, on behalf of himself and Velasam, about her conduct. Dr. Paul Thompson, Director of the Western Regional Office of FSIS, became aware of his complaints on September 11, 1995, and on the same day instructed his subordinate, Dr. Michael McGovern, Area Supervisor of the Sacramento Area of the Western Region of FSIS, to respond to the complaints.
V. September or October, 1995 Meeting with McGovern
McGovern met with Samson in September or October, 1995 in an attempt to resolve his complaints regarding Stewart. Simon Samson testified that during the course of this meeting, McGovern threatened to retaliate against him if he continued to complain about Stewart's conduct. More specifically, Samson testified that McGovern told him that "it might become your problem" "if you escalate this." McGovern denied making such a threat. McGovern also denied saying anything that could reasonably be construed as such a threat. The Court finds McGovern's testimony more credible, and therefore finds that McGovern did not threaten retaliation.
VI. Operating Outside of Hours
On Saturday, October 7, 1995, FSIS Inspector Patricia Gay went to Velasam to do an odd-hours inspection. Gay was not then assigned to inspect Velasam. However, she went to Velasam because on that day she received information from an informant, who was employed at a meat processing plant that Gay was assigned to inspect and whose wife was employed at Velasam, that Velasam was processing meat without inspection. When Gay arrived at Velasam, she saw seven people working at a table cutting meat. A Velasam employee who identified herself as the person in charge told Gay that they were not cutting meat for sale, but instead were training employees. Gay told her that that was irrelevant; inspection was still required. Gay had them place the meat in a cooler, and she padlocked the cooler door and placed a "U.S. retained" tag on the door. She also told them to contact their assigned inspector, Rora Field, before resuming operations. Field withheld inspection from Velasam the next day.
VII. October, 1995 Withholding of Inspection
McGovern was informed that Velasam had been caught cutting meat outside of normal operating hours and that inspection had therefore been withheld from Velasam on the next business day, Tuesday, October 10. It was McGovern's responsibility to decide when to reinstate inspection. McGovern was unwilling to reinstate inspection without a face to face meeting with Simon Samson. McGovern wanted to have such a meeting before agreeing to reinstate inspection because it gave him the opportunity to impress on Simon Samson, the person responsible for the plant, the importance of compliance with all applicable regulations and the possibility of dire consequences for failing to comply. McGovern believed that such a meeting was particularly important because Velasam had previously been cited twice for operating outside its designated hours of operation, once in September, 1992 and once in April, 1993. After the April, 1993 incident, inspection was withheld and was not reinstated until two days later when Velasam management met with area office personnel at the area office. McGovern specifically wanted to meet with Simon Samson, because in his experience it was necessary to get Samson's agreement for anything to be accomplished at Velasam. And even with Samson's agreement, McGovern was worried that the regulations would not be followed, because FSIS had had problems in the past with Samson not honoring his commitments to the USDA.
During a phone conversation on October 10, McGovern explained that he wanted to meet with Samson personally before reinstating inspection. Over the next several days, McGovern and various representatives of Velasam, including Samson, exchanged phone calls, voice mail messages, letters, and faxes. However, McGovern was unwilling to reinstate inspection without a face to face meeting with Samson, and Samson was unwilling to meet with McGovern. This impasse was resolved when Dr. Mark Mina, Assistant Deputy Administrator of Regional Operations and Thompson's supervisor, directed McGovern to reinstate inspection at Velasam effective October 18. Mina had spoken with Johanna Samson and believed that the issue had been satisfactorily resolved. Further, Mina informed McGovern that Johanna Samson, not Simon Samson, would be the USDA's contact in the future.
The Court finds that FSIS officials did not withhold inspection until October 18, 1995 in order to interfere with or attempt to interfere with Plaintiffs' exercise of rights guaranteed to them under the California constitution. Rather, inspection was withheld until October 18, 1995 because Simon Samson was unwilling to meet with McGovern, the FSIS official responsible for deciding when to reinstate inspection, and McGovern was unwilling to reinstate inspection without such a meeting. McGovern's insistence on a face to face meeting with Samson was not motivated by a desire to interfere with or attempt to interfere with Plaintiffs' exercise of rights guaranteed to them under the California constitution, but by McGovern's legitimate concerns regarding Velasam's willingness to comply with the applicable regulations.
VIII. Further Complaints
In October and November, 1995, Simon Samson, on behalf of himself and Velasam, sent a letter and supporting documents complaining about the USDA's treatment of Velasam to several USDA officials, including the Secretary of Agriculture, as well as a number of elected government officials, including Senators Lugar and Baucus. Both of these Senators requested that FSIS officials look into Samson's complaints. FSIS did so by having its internal assessment division investigate Samson's allegations and prepare a report. This was FSIS's ordinary practice in responding to such congressional inquiries, which FSIS received relatively frequently.
IX. FSIS Officials Receive Information about Adulterated Products
In early December, Roy Thompson, an FSIS compliance officer, Raul Olivas, the officer-in-charge of Western Region's compliance program, and Neil Hasheider, a special agent with the USDA Office of Inspector General, met with a Velasam employee, who told them that Velasam had its employees put a white powder on green and stinky meats. While the employee had been told that the white powder was salt, the information that she provided caused Thompson, Olivas, and Hasheider to be concerned that the white powder contained sulfites, a substance with the ability to mask the appearance and odor of spoiled meat. To investigate their suspicion, Thompson obtained Velasam products from a retail store and a restaurant and then tested the products for the presence of sulfites using a field test known as the malachite green test. Both of these products tested negative for the presence of sulfites. However, when Thompson attempted to purchase Velasam products from three Petrini's Market locations, he was told that Velasam employees had previously retrieved all of their products from Petrini's. FSIS officials were suspicious of this unexplained withdrawal of Velasam product from the retail market. Throughout December and January, other FSIS compliance officers sampled Velasam products found at various Velasam customers' locations throughout the United States. This testing revealed approximately half a dozen products that field-tested positive for sulfites. Four samples of lamb osso bucco taken at the MGM Grand Hotel in Las Vegas, Nevada were later confirmed to contain sulfites by laboratory testing.
X. Further Complaint
Simon Samson, on behalf of himself and Velasam, again wrote to the Secretary of Agriculture to complain about the USDA's treatment of Velasam on January 15, 1996.
XI. January, 1996 Recall
On January 19, 1996, the USDA requested that Velasam engage in a voluntary nation-wide recall of all its products. The recalled meat was returned to Velasam on January 27, 29, and 30, 1996. FSIS Processing Staff Officer Charles Riddle, FSIS Compliance Officer Roy Thompson, Inspector Field, Inspector Rose Davalos, and Inspector John Cameron were present at Velasam during the recall in order to oversee and monitor the recall on behalf of FSIS.
XII. PDR for Receiving Returned Products in an Unwholesome or Insufficiently Identified Condition
On January 27, Riddle directed Field to tag the returned product and write Velasam a PDR for receiving returned products in an unwholesome or insufficiently identified condition. While this PDR appeared to hold Velasam responsible for something beyond its control, i.e., the condition of the product returned to it by its customers, Riddle believed that the issuance of such a PDR was necessary in order to document the fact that Velasam had unwholesome or insufficiently identified product in its possession. However, upon reviewing the PDR as actually written by Field, Riddle determined that the PDR was, in fact, improperly written. Therefore, he instructed Field to rescind the PDR. Further, even though Simon Samson refused to return the PDR, FSIS took no enforcement action on the basis of this PDR. Considering all these facts, the Court finds that Riddle did not direct that this PDR be issued in order to interfere with or attempt to interfere with Plaintiffs' exercise of rights guaranteed to them under the California constitution. Rather, the Court finds that Riddle directed that this PDR be issued out of a legitimate belief that a PDR was necessary to document the fact that Velasam had unwholesome or insufficiently identified meat in its possession, and that Riddle attempted to rescind this PDR once he realized that it was problematic.
XIII. PDR for Denaturing Returned Product
The product that was returned to Velasam on January 27 was placed in the back of a delivery truck, which was marked with a U.S. retained tag. When the FSIS officials left Velasam at the end of the day, the truck was padlocked shut. On January 29, Field unlocked the padlock on the truck where the returned product was being stored in order to allow the meat that had been returned that day to be placed in the truck. Velasam employees Gordon Durler and Doug Achterberg, acting according to Simon Samson's instructions, went into the truck, took the returned product out of its boxes, dumped the returned product on the floor, and poured denaturant over it. Field told Simon Samson that this was a bad idea and told Durler and Achterberg not to do it, but she was ignored. Field reported this to Riddle, who directed her to issue Velasam a PDR for denaturing returned product that was being held under government control. The Court finds that Riddle did not direct that this PDR be issued in order to interfere with or attempt to interfere with Plaintiffs' exercise of rights guaranteed to them under the California constitution. Rather, the issuance of this PDR was an appropriate regulatory response, particularly because the denaturing of the returned product prevented FSIS from testing it for the presence of sulfites.
XIV. Harassment During Recall
Durler testified that Thompson and Riddle ignored Velasam's employees' questions, crowded Simon Samson on the loading duck, deliberately delayed the progress of the recall, and treated the recall, and its negative impact on Velasam's business, as if it were a joke. Although Thompson admitted that he may have inadvertently failed to respond to questions asked by Velasam employees, both Thompson and Riddle denied engaging in any intimidating and harassing conduct. Their description of their behavior is confirmed by the testimony of other witnesses present at Velasam during the recall, including that of Jerry Oliveras, the director of a food laboratory in San Francisco who was present at Velasam at Samson's request, who testified that FSIS officials acted in a professional manner throughout the recall. For these reasons, the Court finds Durler's uncorroborated testimony not credible and thus finds that FSIS employees did not harass or intimidate Velasam employees during the recall.
However, the Court finds that Thompson and Riddle were subject to harassment and intimidation by Velasam employees. From the first day of the recall, Simon Samson created a hostile environment by hiring security guards and by instructing people hidden inside two limousines with tinted windows and covered license plates to take pictures of the proceedings. Further, on January 27, Velasam employees used confrontational and insulting language. For example, a Velasam employee accused the FSIS of using "fucking Gestapo tactics." On January 30, the third day of the recall, Velasam employees escalated the harassment by focusing their comments more directly on individual FSIS officials. When FSIS officials instructed Velasam employees to take a break, Simon Samson initially agreed, but then changed his mind, saying, "Fuck Dr. Thompson and Fuck Mickie Taylor [the head of FSIS]. We're not stopping." Durler then said, "You motherfuckers have cost me too much money already. We're not stopping." Later, Durler and Achterberg cornered Roy Thompson against the loading dock, waved their arms at him, and shouted and cursed at him, calling him "motherfucker" and "scumbag." This harassment occurred in the presence of Simon Samson, and Samson took no action to halt either the verbal abuse or the intimidating gestures being made towards Thompson by Achterberg.
XV. January, 1996 Withholding of Inspection
Inspection was withheld and then suspended from Velasam from January 31, 1996 until April 9, 1996 on the basis that Velasam employees had harassed and intimidated FSIS officials and interfered with FSIS officials in the performance of their official duties. In many instances, such incidents can be resolved at the local level, by the FSIS inspectors or by their supervisors. However, by January, 1996, in addition to being concerned that Velasam employees were harassing and intimidating FSIS officials and interfering with their performance of their duties, FSIS was concerned that Velasam was producing adulterated meat. The FSIS compliance program was investigating this possibility, as was the USDA Inspector General's Office. Because of this, it was determined that the decision regarding when and under what circumstances to reinstate inspection should be made at FSIS headquarters in Washington, D.C. by officials of the FSIS compliance program, rather than locally by the inspection operations division. Once the compliance division considered all of the information available to it, it decided that it was unwilling to reinstate inspection without greater assurance that there would be no more intimidation, harassment, and interference than could be provided by Simon Samson's written assurances. Therefore, the compliance division decided to attempt to negotiate a consent decree with Velasam that could be filed with an administrative law judge concurrently with an administrative complaint. This procedure would render the agreements made by Velasam legally enforceable in an administrative proceeding. This process in its entirety, from the date that inspection was withheld until the date inspection was reinstated, took approximately nine weeks, which is not an unusual or inordinate amount of time. For these reasons, the Court finds that the delay in reinstating inspection was the result of legitimate regulatory concerns, and not an attempt to interfere with Plaintiffs' exercise of rights guaranteed by the California constitution.
In reaching this conclusion, the Court has declined to consider the deposition testimony submitted by Plaintiffs, as well as the rebuttal deposition testimony submitted by Defendant. During the trial, the Court informed Plaintiffs that it was not inclined to consider such additional deposition testimony because it was not disclosed in the pretrial statement. However, the Court allowed Plaintiffs to submit the testimony along with a short brief explaining why the Court should consider the testimony. While Plaintiffs did submit the deposition testimony that they wished the Court to consider, they did not offer any explanation as to why the Court should consider this testimony. Therefore, the Court declines to do so.
XVI. Subcontracting
In an attempt to continue to produce product after inspection was withheld in January, 1996, Velasam contracted with Hagemann Meat Company to allow Velasam to produce its products under Hagemann's mark of inspection. While inspecting Hagemann, Cameron noticed this. He informed his supervisor, Dr. Wayne Akers, the Circuit Office supervisor for the Petaluma Circuit, and was told that the applicable regulations prohibited tenants. See 9 C.F.R. § 304.1(b). Cameron asked whether this rule also prohibited another company, C.K. Lamb, from processing meat at Hagemann and was told that it did. Cameron informed Bruce Hagemann of this. Hagemann agreed to end his subcontracting arrangement with Velasam, but refused to end his relationship with C.K. Lamb, which had been in place for a number of years. He wrote a letter to Cameron explaining his position. Cameron forwarded a copy of Hagemann's letter to Akers and received no response. Cameron assumed that Akers had decided to allow Hagemann's relationship with C.K. Lamb to continue because it was a long-standing, established arrangement. For this reason, Cameron took no further action against Hagemann.
The Court finds that FSIS officials did not refuse to allow Velasam to process meat as a tenant of Hagemann in order to interfere with or attempt to interfere with Plaintiffs' exercise of rights guaranteed to them under the California constitution. The undisputed evidence is that Akers was given Hagemann's objection to the original decision and never responded, causing Cameron to believe that Akers had decided to allow C.K. Lamb to continue to process meat at Hagemann. Akers passed away before trial. No evidence was introduced from which it would be possible to infer that it was more likely than not that Akers made the decision to treat Velasam's subcontracting relationship with Hagemann differently than C.K. Lamb's in order to interfere with or attempt to interfere with Plaintiffs' exercise of rights guaranteed to them under the California constitution. Rather, it is equally likely that Akers decided to allow C.K. Lamb to continue to process meat at Hagemann because their arrangement was long-standing, but refused to allow Velasam to begin such a relationship because it would violate the applicable regulations.
CONCLUSIONS OF LAW
I. Subject Matter Jurisdiction
The United States, as sovereign, is immune from suit except as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA enacts a limited waiver of sovereign immunity and confers subject matter jurisdiction on the federal courts to hear cases allowed by the waiver. 28 U.S.C. § 1346(b). In general, the FTCA waives sovereign immunity for causes of action for personal injury or death caused by the negligence of a federal employee while acting within the scope of employment "under circumstances where the United States, if a private person, would be liable." 28 U.S.C. § 1346(b).
One express exception to the waiver of immunity and grant of jurisdiction is for discretionary governmental functions, such as:
Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680(a). This exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Berkovitz v. United States, 486 U.S. 531, 536 (1988). Through the discretionary function exception, Congress intended to prevent judicial "second-guessing" of those governmental decisions which are "grounded in social, economic, and political policy." United States v. Gaubert, 499 U.S. 315, 323 (1991).
Applying the discretionary function exception involves a two-part test. First there must be discretion, in the sense that there must be no mandatory and specific statute, regulation, or policy prescribing a course of action for the employee or agency to follow; a governmental actor does not have discretion to violate a mandatory regulation. Gaubert, 499 U.S. at 322; see also GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173-74 (9th Cir. 2002). Second, the exercise of the discretion must be "based on considerations of public policy." Gaubert, 499 U.S. at 322-23. The second prong "requires a particularized and fact-specific inquiry to determine whether the acts or omissions in question flowed from a choice based on social, economic and political policy." Prescott v. United States, 973 F.2d 696, 700 (9th Cir. 1992). The United States bears the burden of proving the applicability of the exception. Prescott, 973 F.2d at 700.
To the extent that Plaintiffs' claims are based on the withholding or suspension of inspection, the issuance of PDRs, and the decision not to allow Plaintiffs to enter into a subcontracting relationship with another meat processing establishment, the Court concludes that Plaintiffs' claims are barred by the discretionary function exception. As to the first prong, the FSIS employees who withheld and suspended inspections at Velasam's meat processing facility, issued PDRs, and refused to allow the subcontracting arrangement had the discretion to do so. The FSIS regulations provide that FSIS employees "may" take various actions against meat processing facilities that fail to follow the applicable regulations. See 9 C.F.R. § 500. The regulations allow FSIS employees to determine what sanction, if any, is an appropriate response to a given infraction by a meat processing facility under a variety of circumstances. See id. The regulations thus grant considerable discretion to the FSIS employees.
As to the second prong, the FSIS employees who withheld and suspended inspections at Velasam's meat processing facility, issued PDRs, and refused to allow the subcontracting arrangement were exercising discretion based on considerations of public policy. Congress enacted the Federal Meat Inspection Act (FMIA) to establish a comprehensive regulatory scheme governing meat and meat food products for the purpose of protecting consumers. See 21 U.S.C. § 602. Congress delegated to the Secretary of Agriculture broad discretion to implement the provisions of the FMIA and to issue regulations necessary to protect the health and welfare of consumers who eat meat and meat food products. See 21 U.S.C. § 621. The FSIS officials were acting pursuant to this statutory framework and the discretion granted to them to enforce the statutory and regulatory requirements in order to ensure that consumers received safe meat. These are the kinds of policy-based decisions that the discretionary function exception was meant to shield. See GATX/Airlog Co., 286 F.3d at 1175-77 (holding that a regulated entity does not have a cause of action against the United States based on damages to the regulated entity caused by the actions taken by the agency in order to make the regulated entity's activities conform with standards necessary to protect the safety of the public).
The Court concludes that the discretionary function exception deprives the Court of subject matter jurisdiction over Plaintiffs' claims to the extent that those claims are based on the withholding or suspension of inspection, the issuance of PDRs, and the decision not to allow Plaintiffs to subcontract with another meat processing establishment. However, the discretionary function exception does not deprive the Court of subject matter jurisdiction over Plaintiffs' claims to the extent that those claims are based on the alleged harassment of Velasam employees by FSIS officials.
II. Section 52.1
California Civil Code § 52.1 provides that individuals may bring suit whenever "a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by . . . the Constitution or laws of this state." Cal. Civ. Code § 52.1(a). Thus, the United States is liable under section 52.1 if government officials (1) interfered or attempted to interfere (2) with rights secured by the California constitution, (3) by threats, intimidation, or coercion. See Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998).
A. Rights Secured by the California Constitution
Section 52.1 protects persons who exercise rights secured by the California constitution.
In August through October, 1995 and again in January, 1996, Plaintiff Simon Samson, on behalf of himself and Plaintiff Velasam, complained about the actions of FSIS officials. The Court concludes that Simon Samson and Velasam's complaints were speech protected by the California constitution. Cal. Const. art. I, § 2(a) ("Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.").
Johanna Samson did not herself complain about the actions of FSIS, nor can the complaints of Velasam be imputed to her on the basis that she owned shares in Velasam. While Johanna Samson now claims that it was her right to free association, protected by article I, section 3 of the California constitution, that Defendant interfered with or attempted to interfere with, the Court will not consider the validity of this contention, because it was first made in Plaintiffs' Revised Proposed Findings of Fact and Conclusions of Law, filed after the close of evidence. Therefore, the Court concludes that Johanna Samson's claims fail because she has not established that she exercised rights secured by the California constitution.
B. Threats, Intimidation, or Coercion
Section 52.1 prohibits interference with civil rights through "threats, intimidation, or coercion." The statute does not expressly define these terms, and thus the Court must give these words their usual, ordinary meaning, People v. Trevino, 26 Cal.4th 237, 240-41 (2001). However, the statute does expressly exclude speech alone from the scope of actionable threats, intimidation, or coercion, unless the "speech itself threatens violence against a specific person or group of persons." Cal. Civ. Code § 52.1(j). Therefore, giving the words at issue their ordinary meaning while including the express limitation contained in the statute, the Court concludes that a defendant violates this statute by expressing an intent to inflict violence on the plaintiff; by making the plaintiff timid or fearful, either through actions or through speech expressing an intent to inflict violence; or by restraining or dominating the plaintiff by force.
The Court concludes that withholding and suspending inspection, issuing PDRs, and refusing to allow a subcontracting relationship with another meat processing establishment constitute acts of intimidation within the meaning of section 52.1, in that they are actions that have the effect of making a plaintiff fearful of exercising rights guaranteed by the California constitution. However, the Court has found that FSIS officials did not, in fact, harass or intimidate Plaintiffs during the January, 1996 recall. Therefore, the actions of the FSIS officials during the recall cannot constitute threats, intimidation, or coercion within the meaning of section 52.1.
The Court has already concluded that Plaintiffs' claims based on these actions are barred by the discretionary function exception of the FTCA. However, in the interest of completeness, the Court will enter conclusions of law with respect to all of Plaintiffs' claims.
C. Interfered or Attempted to Interfere
Section 52.1 prohibits defendants from "interfer[ing] or attempt[ing] to interfere" with plaintiffs' exercise of their constitutional rights. This requires that the defendants made threats or engaged in acts of intimidation or coercion with the intent of discouraging plaintiffs from exercising their constitutional rights. As discussed in the findings of fact, the Court has found that the FSIS officials were not so motivated.
For these reasons, the Court concludes that the United States did not violate section 52.1.
CONCLUSION
The Court concludes that to the extent that Plaintiffs' claims are based on the withholding or suspension of inspection, the issuance of PDRs, and the decision not to allow Plaintiffs to subcontract with another establishment, those claims are barred by the discretionary function exception to the FTCA. To the extent that Plaintiffs' claims are not so barred, Plaintiff have not established by the preponderance of the evidence that Defendant violated section 52.1. Accordingly, judgment shall enter in favor of Defendant United States.
IT IS SO ORDERED.