Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`UNITED STATES OF AMERICA,
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` Plaintiff,
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`v.
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`MILLER’S ORGANIC FARM and
`AMOS MILLER,
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` Defendants.
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` CIVIL ACTION
` NO. 19-CV-1435
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`ORDER TO SHOW CAUSE
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`AND NOW, this day of June, 2021, upon consideration of plaintiff United States’
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`Motion for an Order to Show Cause Why Defendants Should Not Be Held in Contempt, and the
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`supporting exhibits, it is ORDERED as follows:
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`1.
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`Defendants Amos Miller and Miller’s Organic Farm SHALL APPEAR before
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`the United States District Court for the Eastern District of Pennsylvania at the U.S. Courthouse,
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`The Holmes Building, 4th Floor, 101 Larry Holmes Drive, Easton, Pennsylvania 18042, on
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`Wednesday, June 16, 2021, at 10:00 a.m., AND SHOW CAUSE why an Order should not be
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`entered holding defendants in contempt of the Court’s November 19, 2019 Permanent Injunction
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`Order (Dkt. Entry No. 44) and April 16, 2020 Consent Decree (Dkt. Entry No. 67) in this action.
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`2.
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`Defendants’ counsel, Steven Lafuente, Esquire, shall promptly serve a copy of
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`this Order upon defendants.
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`BY THE COURT:
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`EDWARD G. SMITH, J.
`United States District Judge
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 2 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`UNITED STATES OF AMERICA,
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` Plaintiff,
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`v.
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`MILLER’S ORGANIC FARM and
`AMOS MILLER,
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` Defendants.
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` CIVIL ACTION
` NO. 19-CV-1435
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`UNITED STATES’ MOTION FOR AN ORDER TO SHOW CAUSE
`WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT
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`At the center of this action is defendant Amos Miller, a farm business owner who, by
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`virtue of his singular, historic willingness to flout democratically enacted federal food safety
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`laws of general applicability, was—until enjoined in this action, and according to some of his
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`customers—the only known United States-based source of the sorts of illegal meat and poultry
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`products that those customers have sought to purchase. Unfortunately, Mr. Miller has continued
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`to attempt to supply his customers with such illegal products.
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`Plaintiff United States of America now therefore moves the Court for an order directing
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`Mr. Miller (who is the alter ego of co-defendant Miller’s Organic Farm) to appear before this
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`Court on June 16, 2021, at 10:00 a.m. (which is the date that the parties agreed to during a status
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`call with the Court on June 2, 2021) and then and there to show cause, if there be any, why his
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`farm and he should not be held in contempt and sanctioned for failing and refusing to comply
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`with the Court’s Permanent Injunction Order (Docket Entry No. 44) and April 16, 2020 Consent
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`Decree (Docket Entry No. 67). The United States further moves the Court for a judgment for all
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`of its reasonable costs, expenses, and attorneys’ fees incurred in bringing this motion.
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 3 of 17
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`GROUNDS FOR RELIEF
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`In support of this motion, the United States avers as follows:
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`1.
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`Exactly five years ago, in June 2016 in EDPA Civil Action No. 16-cv-2732 (“the
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`subpoena enforcement action”), this Court enforced a subpoena of the U.S. Department of
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`Agriculture’s Food Safety and Inspection Service (“FSIS”) and ordered defendants Amos Miller
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`and Miller’s Organic Farm (“Miller’s) to cease denying FSIS inspection access to Miller’s meat-
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`and-poultry-related facilities and records.
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`2.
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`In two 2017 letters, FSIS warned these defendants that they were violating
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`federal inspection, labeling, and FSIS right-of-access requirements in the Federal Meat
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`Inspection Act, 21 U.S.C. § 601, et seq. (“FMIA” or “the Meat Act”), and the Poultry Products
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`Inspection Act, 21 U.S.C. § 451, et seq. (“PPIA” or “the Poultry Act”) (collectively, “the Acts”).
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`3.
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`In April 2019, the United States, on behalf of FSIS, filed a Complaint against
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`these defendants in this action (EDPA No. 19-cv-1435) (“the permanent injunction action”)
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`seeking permanent injunctive relief under the Acts (Dkt. Entry No. 1).
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`The Permanent Injunction Order (Nov. 19, 2019)
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`4.
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`On November 19, 2019 in this action, the Court granted summary judgment in
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`favor of the United States and entered the requested permanent injunctive relief, enjoining
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`defendants from committing continuing violations of the Acts (Dkt. Entry No. 44) (“Injunction
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`Order”).
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`5.
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`In the Injunction Order, and at summary judgment, Mr. Miller and his farm
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`conceded facts that are now established in this action, and the Court made several findings, all of
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`which now bind the parties. See generally, e.g., United States v. Amabile, No. 11-cv-6591, 2012
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 4 of 17
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`WL 2421481, at *5 (E.D. Pa. June 26, 2012) (“A contempt proceeding does not open to
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`reconsideration the legal or factual basis of the order alleged to have been disobeyed[.]”). These
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`established facts include that:
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`• Mr. Miller and his wife solely own Miller’s Organic Farm, which is Mr. Miller’s
`alter ego and files its tax returns under Mr. Miller’s name. Compare USA’s
`Statement of Undisputed Material Facts in Support of Summary Judgment
`(SUMF), Dkt. Entry No. 35-1, at ¶¶ 3 and 4, with Defendants[’] Response to
`[SUMF], Dkt. Entry No. 36-1, at ¶¶ 3 and 4 (conceding these facts). See also
`Injunction Order at p. 1 ¶ 3.
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`• Miller’s “private membership association” is a buyer’s club: (1) whose members
`do not share in the farm’s profits or have voting rights in decisions about the
`farm’s business; (2) that has a decision-making “board” comprising only Mr.
`Miller and his wife; (3) that conditions membership solely on an individual’s
`signing a membership contract and paying a small one-time fee; and (4) that does
`not screen members based on their views or beliefs. Compare SUMF ¶ 5 with
`Defendants’ Response to SUMF, at ¶ 5.
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`• As of late 2019 before entry of the Injunction Order, Miller’s owned the livestock
`and poultry that it slaughtered and processed at its farm location, with the only
`exception being limited poultry that five or fewer neighbors took to Miller’s each
`year for slaughtering and processing using Miller’s equipment. Compare SUMF
`¶ 8 with Defendants’ Response to SUMF, at ¶ 8. Moreover, at its farm site as of
`late 2019, before the Injunction Order, Miller’s prepared, stored, and distributed
`such Miller’s-slaughtered/processed livestock and poultry. Injunction Order at p.
`2 ¶ 5.
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`• At least until the Injunction Order, Miller’s sold its meat and poultry products
`only to Miller’s private membership association members, including to food Co-
`operatives that participated or were otherwise members in Miller’s private
`membership association. Miller’s fulfilled telephone, email, and internet orders by
`itself transporting, or by arranging delivery services to transport, purchased
`products. Compare SUMF ¶ 13 with Defendants’ Response to SUMF, at ¶ 13.
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`• At least until the Injunction Order, Miller’s sold its meat and poultry products that
`are subject to the Acts (known as “amenable products”) for commercial purposes
`and for human consumption to consumers in Pennsylvania and throughout the
`United States. Injunction Order at p. 2 ¶ 5.
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`• Federal inspection is required at an establishment that slaughters livestock or
`poultry, and then prepares or processes amenable meat, meat food products, or
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 5 of 17
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`poultry products that are capable of use as human food for interstate or foreign
`commerce, unless the establishment qualifies for an exemption from federal
`inspection. Id. at p. 2 ¶ 6.
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`• By as early as June 2019 Amos Miller had written to Miller’s members and
`presented them with his views on why providing federally inspected products was
`not in Miller’s or its members’ interests. Compare SUMF ¶ 11 with Defendants’
`Response to SUMF, at ¶ 11 (conceding these facts).
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`• As of the date of the injunction order, Miller’s was operating its meat and poultry
`business without a USDA-FSIS Federal Grant of Inspection and (with rare
`exception) without taking its livestock and poultry for slaughter and processing to
`any federally inspected facility. Injunction Order at p. 2 ¶ 7.
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`• As of the date of the injunction order, the defendants had not changed Miller’s
`business model to attempt to qualify for an exemption from federal inspection
`under the [Meat and Poultry] Acts for any part of their operations. Id. at p. 2 ¶ 8.
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`• For meat, meat food products, and poultry products that it had sold to consumers
`until the date of the Injunction Order, Miller’s had included only the following
`labeling language, apart from the product name, “packed on” date, weight, and
`price: (i) “Miller’s Organic Farm/Private Membership Association”; (ii) “NOT
`FOR PUBLIC SALE”; and/or (iii) “NOT FOR PUBLIC SALE/Private
`Membership Association.” Id. at pp. 2 ¶ 9.
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`• As of the Injunction Order date, Amos Miller and Miller’s Organic Farm “ha[d]
`been engaging in conduct . . . that violates both the [Meat Act] and the [Poultry
`Act],” including: (a) “through slaughtering, preparing, processing, offering for
`sale, selling, offering for transport, and/or transporting, in commerce, meat, meat
`food products, and poultry products that the Acts require be federally inspected
`but that have not been federally inspected”; (b) “through selling, transporting,
`offering for sale or transportation, or receiving for transportation, in commerce,
`meat, meat food products, and poultry products that are capable of use as human
`food but that are misbranded”; and (c) “through refusing to provide FSIS’
`authorized representatives with necessary access to Miller’s meat-and-poultry-
`related facilities, inventory, and records[.]” Id. at p. 3 ¶ 4.
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`• “The United States’ and the public’s interests in food safety (as expressed in
`congressional findings and the Acts) will be irreparably injured absent permanent
`injunctive relief, and the defendants’ interests do not countervail those interests.”
`Id. at p. 4 ¶ 5.
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 6 of 17
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`• “There is a cognizable danger that, based on [Amos Miller’s and Miller’s Organic
`Farm’s] past and continuing conduct, they will, unless restrained by order of this
`court, continue to violate the Acts.” Id. at p. 4 ¶ 6 (interpolation added).
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`In granting permanent injunctive relief against defendants Miller’s Organic Farm
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`6.
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`and Amos Miller on November 19, 2019, the Court ordered, in part, that:
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`• Defendants “are permanently enjoined . . . from slaughtering livestock or
`poultry, and then preparing, processing, selling, transporting, and/or offering
`for sale or transport any meat, meat food products, or poultry products that are
`required to be USDA-inspected and USDA-passed unless they have been so
`inspected and passed,” see Injunction Order, at p. 4 ¶ 7(a) and at p. 5 ¶ 8
`(“[defendants] will not slaughter livestock or poultry, and then prepare or process
`meat, meat food products, or poultry products, until FSIS issues a Federal Grant
`of Inspection”) (bold added);
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`• Defendants “are permanently enjoined . . . affirmatively to keep such records
`as will fully and correctly disclose all of defendants’ meat-and-poultry-related
`business transactions as may be necessary for USDA FSIS to enforce the Acts
`effectively and as required under 21 U.S.C. §§ 460b) and 642 and 9 C.F.R.
`§§ 320.1 and 381.175,” see Injunction Order at p. 4 ¶ 7(b) and p. 10 ¶ 11 (such
`records were to include those showing: “(a) the names and addresses of persons
`and entities to whom products are sold or distributed; (b) the dates of sale or
`distribution; (c) the product types; and (d) the amounts or quantities,” as well as at
`least one copy of “(a) all label(s) affixed to the products; (b) all labeling affixed to
`shipping containers; and (c) all labeling, brochures, website pages, and other
`materials used to promote, describe, or refer to the products”) (bold added);
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`• Defendants are “permanently enjoined . . . from failing: (i) upon request of any
`authorized representative of the Secretary of Agriculture, and at all reasonable
`times, to afford to representatives of USDA FSIS full and immediate access to
`Miller’s meat and/or poultry-related facilities, inventory, and records, including
`to allow such representatives to copy such records and to take reasonable samples
`of defendants’ inventory upon payment of fair market value; (ii) to cooperate and
`not interfere with that access; and (iii) to refrain from harassing or intimidating
`FSIS representatives conducting reviews as required by 21 U.S.C. § § 460(b),
`461(c), 642, and 675,” see Injunction Order at p. 4 ¶ 7(c) and pp. 10-11 ¶ 12 (bold
`added);
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`• Defendants are “permanently enjoined . . . from failing to comply with all
`requirements of the FMIA, PPIA, and their implementing regulations that apply to
`slaughtering livestock or poultry, and/or then preparing, processing, selling,
`transporting, or distributing meat, meat food products, or poultry production.
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 7 of 17
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`These implementing regulations include, but are not limited to, those imposing
`requirements for: (i) inspection; (ii) labeling; (iii) sanitation (including sanitation
`performance standards and standard operating procedures); (iv) Hazard Analysis
`and Critical Control Point (HACCP) systems; and (v) Listeria monocytogenes
`and/or other pathogen sampling, testing, and other program obligations, as
`provided under 9 C.F.R. § 302.1 and 9 C.F.R. Parts 310, 317, 381, 412, 416, 417,
`418, and 430,” see Injunction Order at p. 5 ¶ 7(d).
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`• Defendants must not conduct any slaughter, processing, or preparation under a
`“custom” exemption without first obtaining USDA FSIS and/or judicial approval
`of an “Exempt Plan” for such operations, see Injunction Order at pp. 6-10 ¶ 10;
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`• Only if defendants were to take all of Miller’s amenable livestock and poultry that
`are intended for human consumption and not otherwise exempt to a federally
`inspected facility or facilities for slaughter and processing would defendants be
`permitted to forgo applying for a USDA Federal Grant of Inspection, but even if
`such a federally inspected facility were to slaughter and process all such livestock
`and poultry, any further processing by defendants of such federally inspected
`products must be done “as an exempt retail store in accordance with 9 C.F.R.
`§§ 303.1(d) or 381.10(d),” which include the requirement, among others, that
`Miller’s be subject to Commonwealth of Pennsylvania and local licensing
`requirements and applicable food codes, see Injunction Order at pp. 5-6, ¶ 9; and
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`• USDA FSIS may (in accordance with law) detain and seek judicial seizure of any
`non-federally-inspected, adulterated, misbranded, or not-exempt-from-inspection
`meat, meat food product, or poultry product observed at Miller’s that is in
`violation of the Acts, see Injunction Order at p. 11 ¶ 13.
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`The Injunction Order provided the following penalties, costs, and expenses for
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`7.
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`non-compliance:
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`• Penalties for sale, transport, etc. of non-federally-inspected product: “[I]f the
`defendants sell, transport, or offer for sale or transport any non-federally-
`inspected meat, meat food product, or poultry product in violation of [the
`Injunction] Order, . . . the defendants shall, upon the first occasion of such
`violation, pay to the United States the sum of five hundred dollars for each
`pound, or portion thereof, of non-federally-inspected, misbranded meat,
`meat food product, or poultry product. For any subsequent violations, the
`defendants shall pay to the United States the sum of one thousand dollars for
`each pound, or portion thereof, of non-federally-inspected, misbranded meat,
`meat food product, or poultry product,” see Injunction Order at p. 12 ¶ 16 (bold
`added);
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 8 of 17
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`• Penalties for recordkeeping violations: “If the defendants, in violation of [the
`Injunction] Order, fail to keep such records as will fully and correctly disclose the
`purchase, receipt, offer for sale, sale, transport, and/or any other transaction
`regarding non-federally-inspected, adulterated, or misbranded meat, meat food
`product, or poultry product involved in their business, the defendants shall upon
`the first occasion of such violation pay to the United States . . . the sum of five
`hundred dollars for each pound, or portion thereof, of adulterated or
`misbranded meat, meat food product, or poultry product for which no
`record or an inadequate record was maintained. For any subsequent
`violations, the defendants shall pay to the United States the sum of one thousand
`dollars for each pound, or portion thereof, of non-federally-inspected meat,
`meat food product, or poultry product for which no record or an inadequate record
`was maintained,” see Injunction Order at pp. 12-13 ¶ 17 (bold added);
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`• Penalties for restricting access: “If the defendants in violation of [the
`Injunction] Order[] fail to provide USDA FSIS with access to their meat or
`poultry facilities, inventory, or records that USDA FSIS requires to assess
`compliance, the defendants shall, upon the first occasion of such violation, pay to
`the United States . . . the sum of two thousand, five hundred dollars for such
`violation. For each subsequent violation, the defendants shall pay . . . the sum of
`five thousand dollars,” see Injunction Order at p. 13 ¶ 18 (bold added);
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`• Costs and expenses related to enforcement: “Should enforcement proceedings
`beyond [the Injunction] Order be necessary, the defendants agree that the United
`States shall be entitled to recover from the defendants all court costs and expenses
`incurred by FSIS in such proceedings, including investigation and preparation
`time and attorneys’ fees for the USDA and the United States Attorney’s Office,”
`see Injunction Order, at p. 13 ¶ 19 and p. 14 ¶ 20 (providing that FSIS’ expenses
`“include . . . investigation and preparation time, at the rate of $45.00 per hour per
`USDA employee”).
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`8.
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`The Court also ordered that: “In accordance with Federal Rule of Civil Procedure
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`65(d)(2), this [Injunction] Order binds the parties and Amos Miller’s and Miller’s Organic
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`Farm’s officers, agents, servants, and employees, as well as other persons who are in active
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`concert or participation with them.” See Injunction Order at p. 16 ¶ 25.
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`9.
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`In granting permanent injunctive relief, the Court retained jurisdiction to issue
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`further decrees and orders that might be necessary to construe, carry out, modify, or enforce
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`compliance with the Injunction Order. See Injunction Order at p. 16 ¶ 32.
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`10.
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`On information and belief, defendants, at all relevant times, even after entry of the
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`Injunction Order, have sold their farm’s meat and poultry products that are intended for human
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`consumption only to members of their nationwide buyers’ club.
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`The Consent Decree (April 16, 2020) and the Condemnation Action
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`11.
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`The following post-Injunction-Order facts are also established by way of the
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`parties’ recitals in their April 16, 2020 Consent Decree:
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`• “FSIS investigators visited Miller’s in December 2019 and January 2020 and
`found the following (and other) material violations of the Injunction Order:
`(1) twice, Amos Miller hindered and denied FSIS access to his facilities and
`records; (2) in December [2019], Miller’s slaughtered and processed ‘amenable’
`animals without federal inspection (Miller’s disposed of the resulting parts after
`FSIS ‘detained’ them—that is, after FSIS had applied a ‘U.S. Detained’ tag to
`them); [and] (3) in January [2020], Miller’s slaughtered additional beef animals
`without federal inspection (resulting in approximately 2,100 pounds of beef
`carcasses), and custom-slaughtered a hog without a required custom-exempt plan
`(FSIS detained the resulting beef and hog carcasses, but later released the hog
`carcass for the owner’s personal use),” see Consent Decree, Dkt. No. 67, at pp. 4-
`5;
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`• “More specifically, on January 22, 2020, when FSIS investigators went to
`Miller’s to determine whether defendants were complying with the Injunction
`Order, the investigators observed approximately 2,100 pounds of refrigerated,
`freshly-cut-up beef carcasses that were initially unlabeled, were capable of use as
`human food, were slaughtered or prepared without required USDA FSIS federal
`inspection, and which, the investigators believed, were being offered or intended
`for sale, so the investigators detained the articles and affixed U.S. Detained tags to
`them,” id. at p. 5;
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`• “On February 10, 2020, the United States filed United States of America v. 2,100
`Pounds, More or Less, of Meat Carcasses, Parts of Carcasses, and Meat Food
`Products, and 34,062 Pounds, More or Less, of Meat Food Products and Poultry
`Products, an in rem civil action docketed at EDPA No. 20-757 (the
`“Condemnation Action”),” see id. at p. 6;
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`• “In the Condemnation Action, on February 20, 2020, the U.S. Marshals Service
`arrested/seized the defendant articles,” including “approximately 2,100 pounds of
`meat carcasses and parts that FSIS investigators observed and detained at Miller’s
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`in January 2020,” “but left the articles in place (frozen and stored) at Miller’s
`pending a condemnation hearing,” see id. at p. 6;
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`12.
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`• “In the Condemnation Action, the United States allege[d] that the defendant meat
`and poultry articles were subject to the Acts, were capable of use as human food,
`were slaughtered, processed, and/or prepared in violation of the Acts because
`without federal inspection, and were therefore prohibited from sale, offer for sale
`or transportation, or receipt for transportation in commerce,” see id.
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`The April 16, 2020 Consent Decree ordered, adjudged, and decreed in part
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`that:
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`• Defendants had “engaged in conduct” as stated in the parties’ recitals “that
`violates the Acts and the Injunction Order,” see Consent Decree at p. 8 ¶ 2;
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`• Defendants were required to pay $2,500 to the United States for failing to provide
`access to Miller’s facilities, inventory, and records on January 24, 2020,” see id.
`at p. 8 ¶ 3;
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`• Defendants were required to “cease and desist all meat-and-poultry-related
`slaughtering, processing, custom-exempt operations, and retail-exempt
`operations (including retail-exempt operations conducted under 9 C.F.R.
`§§ 303.1(d) and 381.10(d)) unless and until defendants can demonstrate to
`FSIS compliance with applicable federal and State laws, including
`Commonwealth of Pennsylvania licensing requirements, as required by the
`Injunction Order,” see id. at p. 8 ¶ 4 (bold added);
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`• “Defendants must and shall remove from their websites and from their agents’
`websites (including but not limited to Miller’s Facebook page, the Amos Miller
`Organic Farm website, and the Miller’s Organic Farm website) all references to
`the availability of ‘fresh’ or ‘non-frozen’ meat, meat food products, poultry, and
`poultry products, until such time, and except to the extent, that Miller’s is in
`compliance with applicable federal and State laws, including Commonwealth of
`Pennsylvania retail licensing requirements,” see id. at p. 8 ¶ 5.
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`Paragraph 7 of the Consent Decree allowed defendants a period to dispose of the
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`13.
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`2,100 pounds of beef carcasses that defendants slaughtered on or about January 22, 2020, in
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`violation of the Injunction Order. See Consent Decree at p. 12 ¶ 7. Those products were later, by
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`August 2020, distributed or disposed of under USDA-FSIS’ oversight and with the consent of
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 11 of 17
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`the interested parties, thereby mooting the need for a condemnation hearing and further
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`proceedings in the Condemnation Action. See Order, Docket Entry No. 12 in the Condemnation
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`Action, at p. 4.
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`Denial of Miller’s Food Coalition, U.A.’s Intervention Motion (April 28, 2020)
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`14. Meanwhile, on April 28, 2020, the Court denied the motion of Miller’s Food
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`Coalition U.A.—an unincorporated Wisconsin nonprofit association whose “members access
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`food from [Miller’s Organic Farm], either directly or through private buying clubs”—seeking to
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`intervene in this permanent injunction action. See Docket Entry No. 69. In so ruling, the Court
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`noted that “[t]he Coalition seems to be arguing for a nebulous right to access and consume illegal
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`food products produced by the Farm. However, no such food access rights exist under federal
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`law, let alone as a cognizable legal interest. Such an interest in illegal food products is not
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`protectable under law[.]” Id. at p. 3 n.1 (citation omitted).
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`The Consent Order (Sept. 28, 2020)
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`15.
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`In a September 28, 2020 Consent Order in this action (Docket Entry No. 80), the
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`Court emphasized: “The Court expects defendants Amos Miller and Miller’s Organic Farm to
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`cooperate fully with USDA-FSIS in its enforcement of the Court’s Orders in this case, including
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`this Order.” See Consent Order at p. 4 ¶ 1.
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`October 15, 2020 Notice of Warning
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`16.
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`On October 15, 2020, FSIS sent a Notice of Warning to Mr. Miller relating to
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`FSIS’ findings of violations at Miller’s between June 2020 and September 2020. See Declaration
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`of Paul Flanagan (“Flanagan Decl.”), Exhibit “1” hereto at ¶ 7 and Exhibit “B” thereto (Oct.
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`2020 notice of warning).
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 12 of 17
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`February 16, 2021 Notice of Warning
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`17.
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`During a November 17, 2020 visit to Miller’s, FSIS investigators detained
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`approximately 123 pounds of non-federally-inspected pork and beef hot dog products from an
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`unknown outside source that Miller’s apparently intended to resell to its customers. FSIS closed
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`its related detention action on November 25, 2020 after FSIS Investigators approved and
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`observed Miller’s disposition of the products. See Flanagan Decl., ¶ 8.
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`18.
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`In a related February 16, 2021 Notice of Warning, FSIS warned Mr. Miller that:
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`a.
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`Miller’s offering of uninspected, improperly labeled meat products for
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`sale to consumers on November 17, 2020 and on other dates violated the FMIA and Paragraphs 7
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`and 9 of the Injunction Order, see Flanagan Declaration at ¶ 9 and Exhibit “C” thereto (Feb.
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`2021 Notice of Warning) at p. 2;
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`b.
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`Miller’s had “failed to maintain records that fully and correctly disclose
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`transactions involving the meat products in question, including, but not limited to, maintaining
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`the name and address of individual(s) who made/supplied the products, receiving papers, and
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`bills of sale, in violation of 21 U.S.C. 642, 9 C.F.R. 320.1, and Paragraphs 7, 9, and 11 of the
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`Injunction Order,” see id.; and
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`c.
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`“Future violations could result in regulatory action, detention or judicial
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`seizure of violative product, referral to the U.S. Attorney’s Office for initiation of criminal or
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`civil enforcement action or contempt proceedings, or other legal action, including imposition of
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`substantial monetary penalties for violations of the Injunction Order.” Id. (Notice of Warning) at
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`pp. 2-3.
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 13 of 17
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`The May and June 2021 Continuing Violations
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`19.
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`Defendants’ violations of the Injunction Order, the Consent Decree, and the Acts
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`have nonetheless continued.
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`20.
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`As of May 2021, defendants have ceased taking their livestock and poultry to a
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`federally inspected facility for slaughter. See Flanagan Decl. at ¶¶ 10-11, 13, 30.
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`21.
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`On May 25, 2021, Amos Miller acknowledged to FSIS investigators that he has
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`been slaughtering livestock and poultry at Miller’s and that his employees were in the process of
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`slaughtering chickens, which the investigators then observed. Id. at ¶¶ 14, 18, 21 (noting that
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`Miller’s continued to slaughter hundreds of chickens for an additional seven hours after the
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`investigators arrived on May 25, despite an investigator’s warning that Mr. Miller was in
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`violation of the Court’s orders).
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`22.
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`On that occasion, FSIS investigators observed and placed under U.S. detention
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`(by affixing U.S. Detained Tag Numbers 129054 through 129062, and 530783) the following
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`products that appeared recently slaughtered and that were void of any USDA inspection legend:
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`(a) approximately 1,851 pounds of poultry carcasses (394 whole chickens), feet, heads, livers,
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`gizzards, and trimmings; (b) approximately 650 pounds of beef carcasses and beef heads; and
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`(c) approximately 600 pounds of whole hog carcasses. Id. at ¶¶ 18, 19, 25, 26.
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`23.
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`None of those observed products had any tags attached to them identifying the
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`animals’ owners or indicating that the carcasses were “not for sale.” Id. at ¶ 19.
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`24.
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`During the FSIS investigators’ May 25, 2021 visit, Mr. Miller warned one of
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`them: “I would not want to be you”; and “you need to be careful.” When the investigator asked
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`Mr. Miller to clarify what he meant, he stated: “I am telling my members to call you, and they
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 14 of 17
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`are not going to be happy when I tell them you are taking their food away from them.” Mr.
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`Miller also stated that his “members are not happy that the USDA is preventing them from
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`getting their food,” and “this food is their medicine and you will be responsible if they become
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`sick.” Flanagan Decl. at ¶¶ 23, 28.
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`25.
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`Also on May 25, 2021, Mr. Miller told the FSIS investigators that: (a) he did not
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`have any records related to purchase of the livestock and poultry that FSIS detained that day;
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`(b) he did not have any records (including any sales invoices) relating to the purchase or sale of
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`Miller’s livestock and poultry products more generally; and (c) the beef carcass belonging to a
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`detained beef head had “probably” been further processed, cut up, and sold to his customers. See
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`id. at ¶ 27.
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`26. When on that occasion an FSIS investigator asked Mr. Miller if he would be
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`continuing to slaughter livestock and poultry at Miller’s the following day without a Federal
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`Grant of Inspection or an approved custom slaughter plan, he responded: “I will continue to
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`slaughter if I am allowed or if it is what my members want. It is up to my members.” See id. at
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`¶ 29.
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`27.
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`During a follow-up FSIS visit to Miller’s on June 4, 2021, Mr. Miller stated that
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`he did not know the whereabouts of certain materials from the beef livestock whose heads FSIS
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`had detained, or the whereabouts of related records, even though if a meat food product intended
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`for human consumption contains those “Specified Risk Materials” (SRMs), it is adulterated and
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`cannot be sold, transported, offered for sale or transportation, or received for transportation in
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`commerce. See id. at ¶¶ 32-38, 40.
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`Case 5:19-cv-01435-EGS Document 89 Filed 06/07/21 Page 15 of 17
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`28. Mr. Miller further stated on June 4, 2021 that he did not believe that there were
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`any available records related to the birth dates, vaccination dates, castration dates, or any official
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`health certificates, for the cattle associated with the beef head. See Flanagan Decl. at ¶ 37.
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`29.
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`In conflict with his statements to FSIS investigators on May 25, 2021, Mr. Miller
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`stated, on June 4, 2021, that one of the carcasses associated with one of the detained beef heads
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`had been ground into pet food that was located in his freezer. When asked whether there was any
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`way to identify the pet food as coming from the missing beef carcass, he stated: “there is no way
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`to tell where it came from.” See id. at ¶ 39.
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`REQUEST FOR A SHOW CAUSE HEARING
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`30.
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