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We continue our look at various money managers' portfolios with Bruce Berkowitz of the Fairholme Fund. Notable changes include the following:
Fairholme continues its thematic investing, opening or adding to bullish positions in defense and health insurers. New investments include Humana (NYSE:HUM) and General Dynamics (NYSE:GD), which complement existing stakes in Boeing (NYSE:BA), Northrup Grumman (NYSE:NOC), Spirit Aerosystems (NYSE:SPR), Wellpoint (WLP) and Wellcare (NYSE:WCG).
In a continuing theme among the value investors I track, Berkowitz is sticking a toe into financials/asset managers with new positions in American Express (NYSE:AXP), Jefferies Group (JEF) and Winthrop Realty Trust (NYSE:FUR). As the economic and credit crisis drags on, money managers are starting to sift through the rubble. Time will tell if they're early yet.
Notable divestments included Mohawk Industries (NYSE:MHK), Berkshire Hathaway (NYSE:BRK.A) and Dish Network (NASDAQ:DISH). Berkowitz's admiration for Warren Buffett is well-known so his sell-off of Berkshire probably isn't any indication of his stance on the stock. Mohawk is a company that's been on my watchlist for some time, though I am more interested in the 9% YTM bonds than the stock.
After adding no new positions in Q4 2008, Mohnish Pabrai's portfolio added eight new positions this quarter. In his most recent partners' letter, Pabrai announced a change in his investment strategy, lowering his targeted stake sizes in hopes of lowering the massive volatility he's experienced the last two years.
Pabrai's new positions can be summed up as a bunch of commodities with a hint of financials. New mining stakes include Horsehead Holding Corp (ZINC), Teck Cominco (NYSE:TCK) and indirectly, Leucadia National (NYSE:LUK). He also moved into the agriculture space with Potash (NYSE:POT) and Cresud SA (NASDAQ:CRESY). He also added a good-sized position in Goldman Sachs (NYSE:GS), which received a well-publicized capital boost from Pabrai's acknowledged idol, Warren Buffett. Pabrai completely divested his WCG position and massively reduced stakes in Buffett's Berkshire, Cryptologic (NASDAQ:CRYP), CompuCredit (CCRT) and Fairfax Financial (FFH).
Bob Rodriguez from FPA has been garnering some favorable publicity due to his market-beating performance last year with FPA New Income Fund. Because FPA's filing encompasses several funds' holdings, it is probably best for readers to look at the spreadsheet view. I made the following observations:
FPA's new holdings seemed weighted toward the energy sector, with stakes in North American land drillers BJ Services (BJS) and Helmerich Payne (NYSE:HP), offshore drillers Transocean (NYSE:RIG) and Pride International (NYSE:PDE) and exploration companies like French major Total (NYSE:TOT) and Newfield Exploration (NYSE:NFX).
Keep in mind that Rodriguez's market outperformance last year pertained to his fixed-income portfolio. The equity fund was down roughly in-line with the broader market.
Bruce Berkowitz Q4 2008 13F Holdings Spreadsheet
Robert Rodriguez Q4 2008 13F Holdings Spreadsheet
Mohnish Pabrai Q4 2008 13F Holdings Spreadsheet
You can also find other Q4 13F filing spreadsheets here.
Keep in mind that I use a perl script to parse these filings into the spreadsheet format and some information may be misrepresented or otherwise incomplete.
Disclosure: no positions


text:
Glorious gardens
Throughout the summer, Norfolk's gardens erupt into colour and are ready to be enjoyed in all their splendour, as Uniquely Away magazine discovered.
Set at the edge of the Norfolk Broads, for example, Hoveton Hall Gardens is a delightful 15-acre garden, mixing both formal and informal planting across the seasons, while in the village of Bradenham, near Dereham, gardens at Bradenham Hall feature exquisite hedges and an impressive arboretum.
In Norwich, the beautiful Plantation Garden offers three acres of hidden attraction. As well as mature trees and seasonal colour, visitors will also find an array of Gothic architectural features.
And at Mannington Hall, near Wolterton, the gardens also look splendid at this time of year. Here there are thousands of roses in areas with designs reflecting their date of origin, from the 15th century to the present day.
There is also a knot garden, with scented plants, and on the south lawn visitors will find the recently planted sensory garden.
Look out as well for the special open garden events held across Norfolk throughout the summer. On Sunday 30 June, for example, nine beautiful gardens around the idyllic village of Swannington will be open to the public.
Between 11am and 5pm, enjoy the fabulous variety of gardens, from the Manor with its 400 year-old yew hedge, which is thought to be unique in the country, to the contemporary landscape design of Heath Farmhouse.
Info: Hoveton Hall, Bradenham Hall, Mannington Gardens, Plantation Gardens.

subset: commoncrawl


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|Making Buttermilk Raisin Bran Muffins.
Those of you who live in college towns with good basketball teams know what March Madness is all about. Here in Lawrence it seems the entire town stops everything and organizes viewing parties. This year our church is even having a gathering to pick brackets. I could do just as well throwing a dart at the team list to decide who will win. Of course, everyone around here has to pick KU to win.
- Pineapple Not Upside Down Muffins - We love pineapple in all forms. Muffins taste great with pineapple.
- Pumpkin Pie Muffins - These are amazing and we got the recipe from a Weight Watchers cookbook!
- Buttermilk Raisin Bran Muffins - Makes a massive batch but they last 6 weeks in the fridge. Ours have never been around that long.
- Bacon, Egg & Cheese Muffins - A perfect breakfast on-the-go muffin. These are great warmed up in the microwave.
- Tiny Grape Upside-Down Muffins - A fun recipe from Rachael Ray. My girls love grapes.


text:
Our 'Ideal' Client & Some Recent Clients
On this page you will find a snapshot of clients that we have worked with over the years. You will notice there are a diverse range of businesses, some household names, but many not. Our mission isn't to land 'big-name' clients just to tick a prestige box. Rather, we seek to work alongside well-established Australian businesses that understand their website is a tool to generate leads for their business. Historically these have made for our most successful engagements.
If you are unsure as to whether your organisation would be a good fit for us the best way to determine this is to give us a call. We'll happily discuss in an open and frank manner whether our two organisations are likely to generate mutually beneficially outcomes.
Here are a few of the clients we have helped since 2007
Our Values - How We Treat Our Clients
Outlined below are values that we hold dear. These values were developed 100% internally and guide the way we treat each other, but importantly, how we treat our clients:
We value fairness, respect, and honesty. Whether you're the newest member of our team, one of our founders, or our most important client, we know these are crucial ingredients in doing a great job and enjoying ourselves along the way.
We're not the sort of company who hires 'cool' people just to look the part. Equally, we don't jump on the bandwagon of the latest technology for the sake of it. What rocks our world are great people, proven technologies and generating effective change for our clients.
Gone are the days when a single person holds all the answers. As a company we actively promote collaboration and team work. Not just in the work we do, but also in creating an environment that team members and clients love being part of.
We get a buzz out of seeing our team members grow their skills and experience. We're committed to helping grow the businesses of our clients. Finally, we're always looking for new and exciting ways to grow the products and services we offer. Treading water is boring!
Our number one resource is our people. Everything else is just carefully arranged one's and zero's. The best people, the one's we love being surrounded by, are the self-starters who take ownership of their work and the challenges the digital world throws at them.
What we do is challenging. It requires dedication, creativity and constant evolution. Loving what you do makes life easier and a lot more rewarding. It's also infectious and has a funny knack of making things a success.
Maybe one day we'll see your business on this page...
If you feel that your website isn't generating the quantity or quality of leads that it should, then please contact us. We'll happily give you an overview of how we might be able, talk jargon-free and cut through the clutter.


text: I hear the sound of little feet, As they run past blossom trees near the end of my street. Out of curiosity I take a look, A page opens in a fairytale book. All else fades away, And I become a character in this fairytale play. She doesn`t think I hear or see, But I don`t mistake the sound of my little bee. I finally see her soft sandy hair, And hearing her laugh I lose all care. She gives me a cuddle and a little kiss, This surprise I`ll always miss. She`s the hot summer days and the flowers on that tree, The endlesness where the sky meets the sea. She`s the creatures that start to move just on dark, She`s the rose bushes where I`d sit in the park. Frilly dress, winter (careless I know), But I took her to church and put her on show. How could someone as beautiful as her, Be wrapped up and hidden in jumpers and fur? She`s the sunshine, full moon, stars in the sky, Big open spaces where birds love to fly. She`s the Willy Wagtail on a moonlit night, Chirping away, what a gorgeous sight. Wagging her tail, standing her ground, It`s only in special places she`ll be found. She`s the wind through the curtains, piano keys, Incense and old wares, she`s all of these. Matilda loved her when she came to stay, She knew she was special in her own doggy way. Time has changed, things have passed, But how could memories like these never last? Seen a Willy Wagtail just the other day, A sign that things will never go away. She was with me back then as she`s with me now, She follows me as only an Angel would know how. The sun, the moon, the stars are still here, Lets me know she`s always near. Possums, Frangipanis all so new, All these things still remind me of you. Soon the full moon will glow on the water, Another reminder of my love for you my daughter. I love you Sarah


text:
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|Head Size: 93in˛/600cm˛
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|Composition: Graphite/Graphene
|Racket Colours:Black/Red/White
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Mains skip: 8T,8H
|String Tension: 48-57 pounds / 22-26kg
Head Elite 9R Supercombi Bag Red
2 rackets plus Head Elite 9R Supercombi Bag Red is 399,70 €.
Savings: 49,98 €
Tecnifibre TFight 315 ATP 18X20 Ltd Racket
Price for 2: 159,90 € each
Sale This maneuverable racket offers an impressive combination of control, spin and feel. Great for the intermediate or advanced player looking for a lighter player's racket. String Pattern: 18x20. Swingweight: 309 (RDC). Headsize: 630cm².
Volkl Super G 10 (295g) Racket
Price for 2: 169,90 € each
Mobility, control and comfort! Perfect for the player who wants the precision of a player's racquet without the heavy weight. String Pattern: 16x19. Headsize: 630cm². Standard Length


text:
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April 13, 2007
THE HUMANE SOCIETY OF THE UNITED STATES, ET AL., PLAINTIFFS,v.MIKE JOHANNS, ET AL., DEFENDANTS.
In Claim Three of Plaintiffs' Amended Complaint, Plaintiffs had alleged that, "by creating a fee-for-service ante-mortem horse slaughter inspection system without first conducting any environmental review under the National Environmental Policy Act [(NEPA)], 42 U.S.C. § 4321, et seq., [United States Department of Agriculture (USDA)] has violated NEPA and the [Council on Environmental Quality's (CEQ's)] implementing regulations, abused its discretion, and acted arbitrarily and capriciously in violation of the Administrative Procedure Act [(APA)], 5 U.S.C. § 706(2)." Am. Compl. ¶ 98. On March 28, 2007, the Court issued an [67] Order and accompanying [68] Memorandum Opinion with respect to Claim Three, granting [39] Plaintiffs' Motion for Summary Judgment, denying [37] Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment, and denying [38, 40] Defendant-Intervenors' Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs' First Amended Complaint. In its Order, the Court declared the Interim Final Rule at issue to be in violation of the APA and NEPA, vacated the Interim Final Rule, permanently enjoined the Food Safety and Inspection Service (FSIS) from implementing the Interim Final Rule, and dismissed this case in its entirety.
Presently before the Court is Defendant-Intervenor Cavel International, Inc's [69] Emergency Motion for a Stay of the Court's March 28, 2007 Order. On April 3, 2007, the Federal Defendants indicated that while they "support[ed]" Cavel's motion, they would "not file a brief as the Federal Defendants' previous filings comprehensively present the Federal Defendants' position." See dkt. entry April 3, 2007. On April 6, 2007, Plaintiffs filed an Opposition. Defendant-Intervenor Cavel (hereinafter, "Cavel") indicated that it will not file a Reply. See dkt. entry [71] at 1. Based on a review of the Parties' filings, the relevant statutes and case law, and the history of the case (including the Court's prior orders and memorandum opinions in this case), the Court shall DENY [69] Defendant-Intervenor Cavel's Emergency Motion for a Stay of the Court's March 28, 2007 Order.
A. Factual History*fn1
At the time Plaintiffs filed their Complaint, horses were slaughtered at three different foreign-owned facilities in the United States to provide horse meat for human consumption abroad and for use in zoos and research facilities domestically. The instant case pertains to the web of legislation and regulations pertaining to the inspection of such horses prior to slaughter. The Court notes that as of the Court's March 28, 2007 Order and Memorandum Opinion, Cavel was the only facility still in operation processing horsemeat for human consumption, seeCavel's Mem. to Stay Order at 2-3, as a recent ruling of the United States Court of Appeals for the Fifth Circuit held that the other two Intervenors could be prosecuted for violating a Texas law that "on its face prohibits the processing, sale or transfer of horsemeat for human consumption." Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 329 (5th Cir. 2007).
On November 10, 2005, Section 794 of the FY 2006 Agricultural Appropriations Act was signed into law. Introduced by members of Congress as an amendment to the FY 2006 Agricultural Appropriations Act, the Amendment provides:
Effective 120 days after the date of enactment of this Act, none of the funds made available in this Act may be used to pay the salaries or expenses of personnel to inspect horses under section 3 of the Federal Meat Inspection Act (21 U.S.C. Sec. 603) or under the guidelines issued under section 903 of the Federal Agriculture Improvement and Reform Act of 1996.
See Pub. L. 109-97, § 794, 119 Stat. 2120, 2164 (A.R. 51). The provision of the Federal Meat Inspection Act ("FMIA"), 21 U.S.C. § 603, pertaining to the inspection of horses provides: "For the purpose of preventing the use in commerce of meat and meat food products which are adulterated, the Secretary shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all amenable species [including cattle, sheep, swine, goats, horses, mules, and other equines] before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered and the meat and meat food products thereof are to be used in commerce . . . ." 21 U.S.C. § 603(a). See also 21 U.S.C. § 601(w)(1). The provision of section 903 of the Federal Agriculture Improvement and Reform (FAIR) Act of 1996 pertaining to the inspection of horses relates to inspections during the transport of horses, which is not at issue in the instant case. Plaintiffs understand the FY 2006 Amendment to in effect prohibit the slaughter of horses for human consumption. Pls.' Mot. for Prelim. Inj. at 10.
On November 23, 2005, Beltex Corporation, Dallas Crown, Inc., and Cavel (collectively the "Slaughter Facility Operators") filed a petition for "emergency rulemaking" with the USDA to create a "fee-for-service" inspection program with respect to ante-mortem horse inspections and transportation-related horse inspections. Pls.' Mot. for Prelim. Inj., Ex. 10 (Petition) at 1. On February 8, 2006, FSIS published in the Federal Register an amendment to 9 C.F.R. Pt. 352, "amending the Federal meat inspection regulations to provide for a voluntary fee-for-service program under which official establishments that slaughter horses will be able to apply for and pay for ante-mortem inspection." 71 Fed. Reg. 6337, 6337 (Feb. 8, 2006). The "interim final rule" was given an effective date of March 10, 2006; additionally, FSIS provided a shortened comment period "because it is issuing an interim final rule and finds that it is in the public interest for [FSIS] to receive comments on an expedited basis" before March 10, 2006, the date on which the 2006 Amendment to the Agricultural Appropriations Act would take effect. Id. at 6337, 6340. Elaborating on the need for immediate action, FSIS states:
[w]ith the passage of the FY 2006 Appropriations Act, if FSIS does not establish a means for official establishments that slaughter horses to obtain anti-mortem inspection, these establishments will not be able to operate and presumably will be forced out of business. This interim final rule is necessary to avoid disruption of operations at official establishments that slaughter horses. Therefore, the Administrator has determined that prior notice and opportunity for public comment are impracticable and contrary to the public interest under 5 U.S.C. 553(b), and that there is good cause under 5 U.S.C. 553(d) for making the action effective as specified herein.
Id. at 6340. FSIS further specified that it is "establishing this fee-for-service program under the Agricultural Marketing Act (AMA)." Id. at 6337.
B. Procedural History
In Plaintiffs' [3] First Amended Complaint, filed on February 21, 2006, Plaintiffs made three claims for relief. First, Plaintiffs claimed that the fee-for-service inspection system was created in violation of the APA, 5 U.S.C. § 553, because advance public notice and opportunity to comment was not provided. Am. Compl. ¶¶ 94, 95. Second, Plaintiffs claimed that Defendants violated the APA, 5 U.S.C. § 706, principally by acting arbitrarily and capriciously in violation of both the 2006 Agricultural Appropriations Act Amendment and the FMIA. Am. Compl. ¶¶ 96, 97. Finally, Plaintiffs claimed that Defendants violated NEPA and its implementing regulations by acting arbitrarily and capriciously in violation of the APA, 5 U.S.C. § 706. Am. Compl. ¶¶ 98, 99.
Shortly after filing their First Amended Complaint, Plaintiffs filed [4] Plaintiffs' Motion for a Temporary Restraining Order and for a Preliminary Injunction, and Request for a Hearing ("Motion for Preliminary Injunction") on February 22, 2006. In their Motion, Plaintiffs reiterated the grounds for relief stated in their First Amended Complaint and furthermore requested that the Court preliminarily enjoin and declare unlawful the fee-for-service ante-mortem inspection program that would become effective on March 10, 2006 on the grounds that Plaintiffs had demonstrated likelihood of success on the merits, irreparable harm, lack of harm to Defendants, and public interest factors necessary to obtain injunctive relief. Pls.' Mot. for Prelim. Inj. at 1-2. On February 24, 2006, Beltex Corporation, Cavel, and Dallas Crown, Inc. filed an unopposed [7] Motion to Intervene as of right as Defendants, which was granted by the Court on March 1, 2006. On March 14, 2006, the Court issued an [21] Order and [22] Memorandum Opinion denying Plaintiffs' request for a preliminary injunction and dismissing Claims One and Two of Plaintiffs' Amended Complaint. The Court also noted that unclear briefing and incomplete documentation by both sides with respect to Plaintiffs' NEPA claim precluded the Court from making a determination on the merits based on the record before it.
Following the Court's March 14, 2006 ruling, the Parties submitted Motions for Summary Judgment with respect to Claim Three of the Amended Complaint. On May 1, 2006, Defendants filed [37] Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment; Defendant-Intervenors filed [38, 40] Defendant-Intervenors' Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs' First Amended Complaint; and Plaintiffs filed [39] Plaintiffs' Motion for Summary Judgment.
On March 24, 2006, Plaintiffs also filed [23] Plaintiffs' Motion Under Fed. R. Civ. P. 54(b) for Reconsideration of the Court's Sua Sponte Dismissal of Claims One and Two or, In the Alternative, for Certification of Those Claims for Immediate Appellate Review, and Request for an Expedited Hearing. Therein, Plaintiffs asked the Court to reconsider its dismissal of Claims One and Two, which had been made on the Court's finding that Plaintiffs lacked prudential standing to pursue the claims set forth in these two claims. Pls.' Mot. Reconsider at 1. Plaintiffs further requested that in the alternative, the Court certify Claims One and Two for immediate appellate review. Id. Finally, Plaintiffs requested a hearing related to their Motion to Reconsider. Id.
On August 28, 2006, the Court issued an [53] Order and [54] Memorandum Opinion granting Plaintiffs' [23] Motion to Reconsider with respect to the Court's dismissal of Claim One of the Amended Complaint, but denying Plaintiffs' Motion with respect to Claim Two of the Amended Complaint. Furthermore, the Court denied Plaintiffs' request for certification for immediate appellate review with respect to Claim Two and denied Plaintiffs' request for a hearing as unnecessary and counter to the interests of judicial economy. The Court also provided a briefing schedule with respect to Claim One, and indicated that the Court would address Plaintiffs' NEPA claim (Claim Three) at the same time it addressed briefing with respect to Claim One. Following the Court's August 28, 2006 ruling, the Parties (Plaintiffs, Defendants, and Defendant-Intervenors) submitted Motions for Summary Judgment with respect to Claim One.
Finally, on March 28, 2007, the Court issued an [67] Order and an accompanying 49-page [68] Memorandum Opinion with respect to Claim Three, granting [39] Plaintiffs' Motion for Summary Judgment; denying [37] Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment; and denying [38, 40] Defendant-Intervenors' Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs' First Amended Complaint. Based on the Court's finding of a NEPA violation, the Court declared the Interim Final Rule to be in violation of the APA and NEPA, vacated the Interim Final Rule, permanently enjoined the FSIS from implementing the Interim Final Rule, and dismissed this case. (The Court also determined that it need not reach the issue of whether the Notice and Comment provisions of the APA were violated in the promulgation of the Interim Final Rule at issue, accordingly denying as moot [55] Plaintiffs' Motion for Summary Judgment on Claim One; [58] Defendant-Intervenors' Cross-Motion for Summary Judgment on Claim One of Plaintiffs' First Amended Complaint; and Defendants' [60] Motion for Summary Judgment on Claim One and Defendants' Motion to Dismiss, or Alternatively for Summary Judgment on this Claim.)
On April 2, 2007, Cavel, which operates in DeKalb, Illinois, filed an [69] Emergency Motion for a Stay of the Court's March 28, 2007 Order. The Court notes that the other two Intervenors--Beltex Corporation and Dallas Crown, Inc.--did not join Cavel in filing its Emergency Motion. On April 3, 2007, the Federal Defendants indicated that while they "support[ed]" Cavel's motion, they would "not file a brief as the Federal Defendants' previous filings comprehensively present the Federal Defendants' position." See dkt. entry April 3, 2007. On April 6, 2007, Plaintiffs filed an Opposition. Cavel indicated that it will not file a Reply. See dkt. entry [71] at 1. Accordingly, Cavel's motion is now ripe for adjudication.
The following factors are to be considered when determining whether a stay pending appeal is warranted:
(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. To justify the granting of a stay, a movant need not always establish a high probability of success on the merits. Probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa.
Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985) (internal citation omitted); Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958).
Importantly, it is "the movant's obligation to justify the court's exercise of such an extraordinary remedy." Cuomo, 772 F.2d at 978; see also Twelve John Does v. District of Columbia, Civ. No. 80--2136, 1988 WL 90106 at *1 (D.D.C. Aug. 4, 1988) ("An indefinite stay pending appeal is an extraordinary remedy, and is to be granted only after careful deliberation has persuaded the Court of the necessity of the relief.") (citing Va. Petroleum Jobbers, 259 F.2d at 925). "This Circuit has recently reiterated that a moving party must satisfy 'stringent standards required for a stay pending appeal.'" Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 230 F. Supp. 2d 12, 14 (D.D.C. 2002) (quoting Summers v. Howard Univ., Civ. No. 02-7069, 2002 WL 31269623 (D.C. Cir. Oct. 10, 2002)). Where a moving party fails to establish a substantial case on the merits, and further fails to "demonstrate that the balance of equities or the public interest strongly favor the granting of a stay," a motion for stay is properly denied. Cuomo, 772 F.2d at 978. In the instant case, Cavel has not satisfied the "stringent standards required for a stay pending appeal," as the Court will discuss below.
A. Cavel has not Demonstrated a Likelihood of Success on the Merits
"The first, and most important, hurdle which the petitione[r for a stay] must overcome is the requirement that [it] present a strong likelihood of prevailing on the merits of [its] appeal." Am. Cetacean Soc'y v. Baldrige, 604 F. Supp. 1411, 1414 (D.D.C. 1985). See also Shays v. FEC, 340 F. Supp. 2d 39, 45 (D.D.C. 2004), aff'd, 414 F.3d 76 (D.C. Cir. 2005). "Without such a substantial indication of probable success, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review." Va. Petroleum Jobbers, 259 F.2d at 925. "Even should the petitioner show irreparable harm would result without the imposition of [a] stay, if the requirement of a strong likelihood of success is not met, the petition will be denied." Am. Cetacean Soc'y, 604 F. Supp. at 1414 (citing Blankenship v. Boyle, 447 F.2d 1280 (D.C. Cir. 1971)). This does not mean that the applicant's chances of success on appeal must appear as a "mathematical probability," but that the trial court, in the exercise of its discretion, must weigh the probability of success on appeal in a "balance of equities" with the three other factors. Holiday Tours, 559 F.2d at 844.
Cavel argues that it has a substantial likelihood of prevailing on the merits of its appeal based on three grounds, which the Court will address in turn:*fn2
(1) Cavel argues that the Court "failed to give 'controlling weight' to FSIS's interpretation of its own categorical exclusion regulations and appropriate deference to FSIS's determination of no 'extraordinary circumstances[.]'" Cavel's Mem. to Stay Order at 16-19. However, the Court dealt at length with this argument in the Court's [68] Memorandum Opinion, and hereby incorporates its reasoning therein as set forth below:
An agency cannot invoke a categorical exclusion for the first time in legal briefings when no such invocation exists in the record. See Fund for Animals, Inc. v. Espy, 814 F. Supp. 142 (D.D.C. 1993) ("Dispositive here, however, is the virtual admission of counsel for the defendant that neither defendant nor any authorized subordinate made any contemporaneous determination as to whether the study falls within or without a categorical exclusion under 7 C.F.R. § 1b.3, or that either an EIS or an EA (one or the other of which is required in the absence of a categorical exclusion) should be prepared. Invocation of the categorical exclusion for the first time by counsel after the complaint was filed in this case appears to be a post hoc rationalization, and is inadequate as a basis for review."). "Although the Court of Appeals has not addressed this particular issue, both judges of this Court that have considered the issue have found that a post hoc invocation of a categorical exclusion during litigation cannot justify a failure to prepare an EA or EIS. See Anacostia Watershed Soc'y v. Babbitt, 871 F. Supp. 475, 481 (D.D.C. 1994); Fund for Animals v. Espy, 814 F. Supp. 142, 149-51 (D.D.C. 1993)." Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 18 (D.D.C. 1999). While Defendants in this case relied in their legal filings on the categorical exclusion of FSIS as an agency as set forth in 7 C.F.R. § 1b.4, rather than the action-based categorical exclusions set forth in 7 C.F.R. § 1b.3, Defendants have pointed to no case law suggesting that FSIS is exempted from contemporaneously invoking its categorical exclusion with respect to each action it undertakes in light of the "extraordinary circumstances" caveat in 7 C.F.R. § 1b.4 itself. See Pls.' Mem. for Summ. J. at 34. However, the Court need not reach the issue of precisely what process is required of FSIS pursuant to 7 C.F.R. § 1b.4. Cf. California v. Norton, 311 F.3d 1162, 1176 (9th Cir. 2002) ("In many instances, a brief statement that a categorical exclusion is being invoked will suffice."). What is clear is that in this case, Defendants' failure to give any consideration as to whether or not the Interim Final Rule invoked "extraordinary circumstances" such that it "may have a significant environmental effect," violated 7 C.F.R. § 1b.4 and NEPA's implementing regulations. Concretely, 7 C.F.R. § 1b.4 does not permit FSIS to avoid any consideration of whether extraordinary circumstances apply, and Defendants' interpretation to this effect is arbitrary and capricious.
Pursuant to USDA regulations, "[a]ctions of [the FSIS] are categorically excluded from the preparation of an EA or EIS unless the agency head determines that an action may have a significant environmental effect." 7 C.F.R. § 1b.4. However, this regulation does not exist in a vacuum. It is qualified by another USDA regulation--7 C.F.R. § 1b.3(c)--as follows: "[n]otwithstanding the exclusions listed in paragraphs (a) of this section and § 1b.4, or identified in agency procedures, agency heads may determine that circumstances dictate the need for preparation of an EA or EIS for a particular action. Agencies shall continue to scrutinize their activities to determine continued eligibility for categorical exclusion." 7 C.F.R. § 1b.3(c) (emphasis added). Defendants' interpretation of 7 C.F.R. § 1b.4 would exempt the FSIS from any duty to scrutinize its activities in violation of 7 C.F.R. § 1b.3(c).
Furthermore, pursuant to 7 C.F.R. § 1b.2, "[e]ach USDA agency is responsible for compliance with this part, the regulations of CEQ, and NEPA." 7 C.F.R. § 1b.2(b). CEQ regulations require that "[a]ny procedures [invoked by an agency] under this [categorical exclusion] section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect." 40 C.F.R. § 1508.4 (emphasis added). Defendants' interpretation of 7 C.F.R. § 1b.4 as having required only a determination over twenty years ago that all "FSIS activities have no significant environmental impact," see Defs.' Reply at 5, belies any compliance with FSIS's obligation to "provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect."
Ultimately, the Court agrees that "any notion that USDA may avoid NEPA review simply by failing even to consider whether a normally excluded action may have a significant environmental impact flies in the face of the CEQ regulations," Pls.' Mem. for Summ. J. at 36, as well as USDA's own NEPA regulations.
[68] Mem. Op. at 39-41. While Cavel argues that the Interim Final Rule was categorically excluded from NEPA review pursuant to both 7 C.F.R. § 1b.3 and 7 C.F.R. § 1b.4, see Cavel's Mem. to Stay Order at 17-18, Cavel ignores Federal Defendants' failure to invoke either exclusion in the record with respect to the promulgation of the Interim Final Rule. While Cavel further argues that "the district court decisions followed by this Court in support of its March 28, 2007 summary judgment ruling involved substantial questions concerning whether or not the agency action at issue fell within the scope of the agency's categorical exclusion or else a complete lack of any reference to the exclusion in the record," Cavel's Mem. to Stay Order at 18 n.10, Cavel cannot differentiate the instant case via its legally and factually unsupported argument that "the comprehensive breadth of the FSIS's categorical exclusion under 7 C.F.R. § 1b.4 " somehow exempts Defendants from actually invoking a categorical exclusion. See Cavel's Mem. to Stay Order at 21-22. Cavel's reliance on Back Country Horsemen of America v. Johanns for this argument is misplaced, as the court therein acknowledged that "the [USDA] does not argue that NEPA does not apply to actions undertaken by the Forest Service," whereas the Federal Defendants make precisely that argument in this case. Back Country Horsemen of Am. v. Johanns, 424 F. Supp. 2d 89, 98 (D.D.C. 2006). See also Int'l Ctr. for Tech. Assessment v. Johanns, 473 F. Supp. 2d 9 (D.D.C. 2007) ("Even where [the agency] has determined that an action falls under one of the enumerated exemptions, it must nonetheless determine whether an exception to the exemptions applies.").
(2) Cavel further argues that "FSIS did in fact determine that there were no 'extraordinary circumstances' in which the Interim Final Rule 'may have a significant environmental impact,' and this was clearly reflected in the Administrative Record[.]" Cavel's Mem. to Stay Order at 16, 19-22. Again, the Court squarely dealt with this issue, briefed by all of the Parties, in its [68] Memorandum Opinion, and hereby incorporates its reasoning therein as set forth below:
The administrative record does not contradict Plaintiffs' assessment that "there is no evidence whatsoever that the 'agency head'--or any USDA official--even contemplated whether the rule 'may have a significant environmental effect' that should be considered in an EA or EIS, 7 C.F.R. § 1b.4, let alone made an affirmative contemporaneous determination that this exception to the general categorical exclusion for all FSIS programs should not apply here." Pls.' Mem. for Summ. J. at 32-33. See also id. at 36 ("[T]he Record contains no hint that USDA ever even considered whether the 'extraordinary circumstances' criteria applied to its decision.").
Initially, Defendant-Intervenors' attempted to interpret the Administrative Record as including documentation of Defendants' active invocation of the categorical exclusion via its Regulatory Review Workplan. See Def-Intervs.' Opp'n at 2. Specifically, Defendant-Intervenors expressed their interpretation of USDA-FSIS Regulatory Review Workplan #05-007 (Nov. 23, 2005), A.R. at 202-206, as follows:
[T]wo documents in the Administrative Record--FSIS Directive No. 1232.4 and FSIS Regulatory Review Workplan No. 05-007--[] conclusively demonstrate that the FSIS considers the applicability of NEPA in every rulemaking action, including its promulgation of the Interim Final Rule. See FSIS Directive 1232.4, "Regulations Development and Clearance (Nov. 20, 2001) ("FSIS Directive," AR 0192-AR0201), at pp. 9-10 (AR0200-0201); USDA-FSIS Regulatory Review Workplan #05-007 (Nov. 23, 2005) ("Workplan," AR0202-0206). Moreover, the Administrative Record readily confirms that the FSIS specifically determined that further NEPA review was not required in conjunction with the agency's promulgation of the Interim Final Rule. SeeWorkplan at p. 4 (AR0205).
Def-Intervs.' Opp'n at 5. Furthermore, Defendant-Intervenors argued that "[t]he Regulatory Review Workplan provides a specific mechanism by which the FSIS indicates for each rulemaking action whether an 'Environmental Impact Assessment' is required under NEPA. If further review is required, the agency checks a corresponding box in the "Required Analysis" section to indicate such an affirmative determination. Here, the box is notably unchecked. The FSIS agency head and USDA Under/Assistant Secretary confirmed the determination that no further NEPA analysis was required by approving the Regulatory Review Workplan without comment." Def-Intervs.' Opp'n at 12 (internal citations omitted). See also Def-Intervs.' Mem. for Summ. J. at 3-4.
However, Defendant-Intervenors' theory about what the Regulatory Review Workplan actually demonstrates is belied both by Federal Defendants' deafening silence with respect to this assessment as well as Defendant-Intervenors' eliminating this argument in their Reply. Notwithstanding Defendants' statement that "[c]onsistent with 7 C.F.R. § 1b.4 and FSIS's regulatory clearance directive, 'Environmental Impact Assessment' is not checked on the Workplan for the Interim Final Rule at issue thus indicating that neither an EA nor its EIS is required," Defs.' Mem. for Summ. J. at 11-12, it is clear, both from Defendants' legal position and statements that the box remained empty as a product of a wholesale approach to exclusion by FSIS, that neither the Secretary nor any proxy thereto every considered whether or not an "Environmental Impact Assessment" would be appropriate with respect to the Interim Final Rule. See Defs.' Mem. for Summ. J. at 12 ("Requiring the USDA to take any additional steps absent a finding of a significant environmental impact by the agency head would be redundant and superfluous . . . .").
In Plaintiffs' Motion for Summary Judgment, Plaintiffs state that the Administrative Record submitted by Defendants "contained no NEPA documentation in connection with the rule or petition, nor any indication that any USDA official had ever given any consideration to whether an EIS or EA should be prepared." Pls.' Mem. for Summ. J. at 13. Defendants do not refute this. Accordingly, for the legal reasons set forth in Section III(B)(2) of this Opinion, and based on the factual findings above that FSIS never environmentally assessed the Interim Final Rule in any manner whatsoever, the Court concludes that Defendants have violated NEPA and its implementing regulations.
[68] Mem. Op. at 42-44. Despite Cavel's already-negated argument that "the agency head made . . . a negative determination concerning the need for an 'Environmental Impact Assessment' by leaving its box unchecked and then signing the Workplan," Cavel's Mem. to Stay Order at 20, the record and Federal Defendants' lack of support for this theory more than clarify that Cavel's interpretation of the Workplan is wrong. See Pls.' Opp'n to Cavel's Mot. to Stay Order at 11-12.
(3) Finally, Cavel argues that "Plaintiffs utterly failed to meet their burden of proving that the Interim Final Rule 'may have a significant environmental impact' sufficient to support a determination that FSIS's determination of no 'extraordinary circumstances' was arbitrary and capricious." Cavel's Mem. to Stay Order at 16, 22-25. However, Cavel's argument assumes that Defendants actually made a finding of no extraordinary circumstances,*fn3 which as painstakingly detailed in the Court's March 28, 2007 [68] Memorandum Opinion as well as the section above, never occurred. Accordingly, Plaintiffs do not shoulder the burden of proving that Defendants should have determined that extraordinary circumstances existed when it is clear from the record (and Federal Defendants' failure to support Cavel's interpretation thereof) that no environmental consideration of any kind was undertaken with respect to the Interim Final Rule. While the Court could ostensibly make a preliminary finding of significant environmental impact*fn4 based on the numerous unrefuted statements and declarations proffered by Plaintiffs, see [39] Pls.' Mem. for Summ. J. at 18-23; Pls.' Opp'n to Cavel's Mot. to Stay Order at 14-15, it would be inappropriate for the Court to do so at this juncture, as FSIS never assessed the environmental effects of the Interim Final Rule in the first instance.
In sum, Cavel has not demonstrated a likelihood, let alone a substantial likelihood, of success on the merits in its request for a stay of the Court's March 28, 2007 Order.
B. Cavel has not Demonstrated that It will Suffer Irreparable Harm in the Absence of a Stay
"Under this Circuit's precedent, the harms to each party are tested for 'substantiality, likelihood of occurrence, and adequacy of proof.'" Judicial Watch, 230 F. Supp. 2d at 15 (quoting Cuomo, 772 F.2d at 976-77). As the D.C. Circuit has outlined, the moving party must establish (1) that "the injury must be both certain and great; it must be actual and not theoretical," Wisconsin Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 674 (D.C. Cir. 1985); (2) that "'[t]he injury complained of [is] of such imminence that there is a "clear and present" need for equitable relief to prevent irreparable harm,'" Id. (quoting Ashland Oil, Inc. v. Fed. Trade Comm'n, 409 F. Supp. 297, 307 (D.D.C. 1976), aff'd, 548 F.2d 977 (D.C. Cir. 1976)) (emphasis in original); and (3) substantial unrecoverable economic harm, given the fact that "economic loss does not, in and of itself, constitute irreparable harm"; rather, "'[t]he possibility that adequate compensatory or other corrective relief will be available at a later date . . . weighs heavily against a claim of irreparable harm,'" id. (quoting Va. Petroleum Jobbers, 259 F. 2d at 925).
At the outset, the Court rejects Cavel's reliance on the Court's March 14, 2006 [22] Memorandum Opinion on Plaintiffs' Motion for a Preliminary Injunction as the basis for its irreparable harm argument or other arguments, see, e.g., Def.'s Mem. for Stay at 7, 11, 12, as the Court clearly indicated in that Opinion that insurmountable gaps in the information before it precluded any definitive assessment on the merits of Claim Three at that time. The Court fully and finally (as opposed to preliminarily) addressed Plaintiffs' Claim Three in its recent March 28, 2007 [67] Order and [68] Memorandum Opinion, concluding that Defendants violated NEPA in promulgating the Interim Final Rule.
Cavel argues that the harm it suffers is certain and great because "[t]he March 28 Order forced Cavel to cease its operations immediately upon issuance of the Order[,]" threatening Cavel's business:
Cavel suffers not a mere economic or monetary loss for which it can be easily compensated. The company operates a multi-million dollar facility,*fn5 which is profitable but also expensive to maintain, particularly when the company has been forced to shut down. Moreover, long-standing Cavel customers in Europe . . . will now turn to other North American suppliers for their meat. It will be very difficult . . . for Cavel to ever regain its customers from its Canadian competitors. Likewise, Cavel will lose long-term, qualified employees . . . .
Finally, Cavel has no other avenue to even temporarily ensure the continued operation of the slaughterhouse or employment of its workers.
Cavel's Mem. to Stay Order at 8-9 (internal citations omitted). Cavel relies on Holiday Tours and Wisconsin Gas Co. for its argument that "[c]essation of a business is clearly an 'irreparable harm.'" Id. at 8 (citing Wisconsin Gas. Co., 758 F.2d at 674; Holiday Tours, 559 F.2d at 843 n.2).*fn6
However, "[i]t is . . . well settled that economic loss does not, in and of itself, constitute irreparable harm." Wisconsin Gas Co., 758 F.2d at 674. "The key word in this consideration is irreparable," and "[r]ecoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant's business." Id. (internal quotation omitted). See also Holiday Tours, 559 F.2d at 843. As Plaintiffs point out:
Cavel cannot meet the irreparable harm standard because, among other issues, it has not established that the Court's order threatens the "very existence" of its business. Wisconsin Gas Co., 758 F.2d at 674. Neither of the declarations filed by Cavel even allege, much less prove, that Cavel will go out of business, or cease to exist, if Cavel cannot operate its plant during the pendency of the appeal, or during the USDA's compliance with NEPA. At most, Cavel's declarations identify potential economic losses from temporary cessation of the DeKalb plant's operations . . . which is per se inadequate to establish irreparable harm under Circuit precedent.
Pls.' Opp'n to Cavel's Mot. to Stay Order at 18. In fact, Cavel previously ceased all operations for a period of two years due to a fire and managed to resume operations. Id. at 19; Cavel's Mot. to Stay Order, Ex. 1 ¶ 9 (Declaration of Luc Van Damme, President of Cavel International, Inc.). Furthermore, Cavel is a subsidiary of a larger corporate entity, Velda NV, and Cavel has made no claim that a closure of its plant will threaten this entity as a whole. Pls.' Opp'n to Cavel's Mot. to Stay Order at 19, Ex. 2 ¶ 4 (Fearing Decl.). See Sandoz, Inc. v. Food & Drug Admin., 439 F. Supp. 2d 26, 32 (D.D.C. 2006). Cavel has not established that its losses are great relative to the size of the business. See Lightfoot v. District of Columbia, Civ. No. 01-1484, 2006 WL 175222 at *7, 8 (D.D.C. Jan. 24, 2006). Additionally, many of the "losses" alleged by Cavel can in fact be mitigated, for example, by the sale of supplies and/or the termination of rent payments (as the owner of the facility is Cavel President Van Damme himself). Pls.' Opp'n to Cavel's Mot. to Stay Order at 19, Ex. 2 ¶ 10 (Fearing Decl.); Cavel's Mot. to Stay Order, Ex. 2 ¶¶ 12, 13 (Declaration of James Tucker, General Manager of Cavel International, Inc.). Finally, the loss of "$2 million" in gross sales and supposed "extreme difficulty" regaining customers in the future alleged by Mr. Van Damme, see Van Damme Decl. ¶¶ 8, 10, are respectively insufficient (in light of mitigating measures that can be taken and the reach of Cavel's parent company) and speculative. See Lightfoot, 2006 WL 175222 at *8 ("relatively modest losses are insufficient to meet the standards required for 'irreparable injury'"); Bristol-Myers Squibb Co. v. Shalala, 923 F. Supp. 212, 220-21 (D.D.C. 1996) (finding no irreparable harm where movant would lose $80 million dollars, less than 1% of its total sales); Mylan Pharma., Inc. v. Shalala, 81 F. Supp. 2d 30, 42-43 (D.D.C. 2000) ("Courts within this Circuit have generally been hesitant to award injunctive relief based on assertions about lost opportunities and market share."). In sum, Cavel has not demonstrated irreparable injury warranting a stay of the Court's March 28, 2007 Order.
C. Harm to Plaintiffs
As with irreparable harm to the movant, harms to other parties interested in this action are tested for "substantiality, likelihood of occurrence, and adequacy of proof." Judicial Watch, 230 F. Supp. 2d at 15 (quoting Cuomo, 772 F.2d at 976, 977). "Relief saving one claimant from irreparable injury, at the expense of similar harm caused another, might not qualify as the equitable judgment that a stay represents." Del. River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 924 (3d Cir. 1974) (quoting Va. Petroleum Jobbers, 259 F.2d at 925).
Cavel argues that Plaintiffs will not be harmed by a stay of the Court's Order because "any potential harm to Plaintiffs is merely theoretical." Cavel's Mem. to Stay Order at 10. Cavel defines Plaintiffs' alleged injuries as 1) "caused by the USDA's failure to comply with the APA and NEPA, which has allegedly affected the animal advocacy organizations' ability to engage in education, legislative, and advocacy activities," and 2) individual Plaintiffs' aesthetic injuries. Id. at 10. Cavel argues that because it will ostensibly prevail on the merits of its NEPA claim on appeal and because the alleged harms to individual Plaintiffs cannot be "irreparable" because of Cavel's duty to comply with environmental, sanitary and animal protection laws, the Court should discount such alleged harms to Plaintiffs. Id. at 10-11.
The Court has already rejected the first of Cavel's arguments (that it will allegedly prevail on the merits) in Section III(A) of this Opinion, but notes nonetheless that Cavel's argument does not address any actual harm to Plaintiffs. As to Cavel's second argument, even assuming arguendo that Cavel had actually complied with environmental, sanitary, and protection laws as it alleges, such compliance would not belie the environmental and aesthetic harms alleged by individual Plaintiffs as attached to the Amended Complaint and reiterated in attachments to Plaintiff's Opposition to Cavel's Emergency Motion to Stay the Court's March 28, 2007 Order. See generally Pls.' Opp'n to Cavel's Mot. to Stay Order, Exs. 1, 3, 4, 6, 7, 8. "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 1404, 94 L.Ed. 2d 542 (1987).
D. The Public Interest does not Favor a Stay of the Court's Order Requiring a Federal Agency to Comply with NEPA
"The public interest is a uniquely important consideration in evaluating a request for [interim relief]." Am. Cetacean Soc'y, 604 F. Supp. at 1416 (quoting Nat'l Ass'n of Farmworkers Orgs. v. Marshall, 628 F.2d 604, 616 (D.C. Cir. 1980)). In its March 28, 2007 Memorandum Opinion, in considering whether the Court should vacate the Interim Final Rule or allow it to remain in place on remand to the agency, the Court noted:
Pursuant to the case law in this Circuit, vacating a rule or action promulgated in violation of NEPA is the standard remedy. See Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001) ("If an appellant has standing-which is undeniable here-and prevails on its APA claim, it is entitled to relief under that statute, which normally will be a vacatur of the agency's order."). See also Greater Yellowstone Coal. v. Bosworth, 209 F. Supp. 2d 156, 163 (D.D.C. 2002) ("As a general matter, an agency action that violates the APA must be set aside. As this Circuit explained in American Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001), if a plaintiff 'prevails on its APA claim, it is entitled to relief under that statute, which normally will be a vacatur of the agency's order.' Id. at 1084. Based on this authority, I shall vacate the permit, with the understanding that the Service can reissue another permit if and when the NEPA record of decision so allows."); Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) ("We have made clear that when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated . . . ." (internal quotation omitted)). ...
Neither Defendants nor Defendant-Intervenors have pointed to either a compelling reason, environmental or otherwise, to leave the Interim Final Rule in place pending NEPA review, nor that doing so would preserve NEPA-contemplated opportunities for FSIS. . . . Accordingly, the Court shall vacate the Interim Final Rule, which was promulgated in violation of NEPA-mandated procedures and in violation of the law.
[68] Mem. Op. at 46-48.
The effect of the Court's Order is to vacate an illegally promulgated agency rule. See FCC v. Nextwave Personal Commc'ns, 537 U.S. 293, 300, 123 S.Ct. 832, 154 L.Ed. 2d 863 (2003) (The APA "requires federal courts to set aside federal agency action that is 'not in accordance with law,' . . . which means of course any law . . . ."); Nev. v. Dep't of Energy, 457 F.3d 78, 85 (D.C. Cir. 2006) ("The APA requires that we set aside agency action that is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" (internal citation omitted)). Cavel, on the other hand, has not demonstrated why a stay of this Order would be in the public interest. The Court has already addressed Cavel's argument that the public interest would favor a stay which in turn would save the jobs of Cavel's employees, none of whom has provided a supporting affidavit or declaration on his or her own behalf. See infra at 17 n.6. Cavel's other two arguments fare no better. Cavel argues that "the public has an interest in federal agencies' enforcement of Congressional will[,]" and that "the conference report accompanying the Appropriations Act explained that '[i]t is the understanding of the conferees that the Department is obliged under existing statutes to provide for the inspection of meat intended for human consumption (domestic and exported).'" Cavel's Mem. to Stay Order at 25-26. For Cavel, who has throughout the course of this litigation argued that the FY 2006 Amendment "effects only a change in the source of funding for the ante-mortem inspection of horses conducted by the FSIS," [38] Def.-Intervs' Mem. to Dismiss or for Summ J. at 4, to argue that the Court should infer that this section of the conference report for an appropriations bill eliminating funding for inspection services actually evinces an intention to provide such services presses the boundaries of good faith. Second, Cavel's statement that "this is not a case where the agency regulating Defendant-Intervenor's operations or any court has ruled that 'the service performed by [Cavel] is contrary to the public interest[,]" Cavel's Mem. for Stay at 26, is unpersuasive, as Cavel cannot argue that continuity of its operations is in the public interest by stating that such continuity would not be against the public interest.
The Court finds that a stay of its March 28, 2007 Order would not be in the public interest, and particularly in light of Cavel's failure to demonstrate a likelihood of success on the merits and adequately demonstrate irreparable injury, the Court finds that a balancing of the factors enumerated above supports denying Cavel's request for a stay.
Based on the aforementioned reasoning, the Court shall DENY Defendant-Intervenor Cavel's [69] Emergency Motion for a Stay of the Court's March 28, 2007 Order. An Order accompanies this Memorandum Opinion.
Date: April 13, 2007
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Composition for LIBOCALMChlordiazepoxide(1 mg),Trifluoperazine(10 mg)
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"Door" is a very clever flip book style animation from Pascal Campion about a man and a door.
There's not much more that can be said, so click through for a very entertaining piece of Flash.
[Pascal Campion – Door]
[Via: NOTCOT]
© 2016 Didn't You Hear.... All Rights Reserved.


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"University of belgrade" Belgrade Favorite Tip by elsebeth
Belgrade General: 225 reviews and 248 photos
Favorite thing: I was at the university for about a year attending a language course. I met lots of very nice people, from countries all over the world.
I went to some lectures i didnt understand much off but it was just nice being there observing how university lectures work in Belgrade, and they are much different from my universityin Denmark.
For instance are the students writing everything the professor says down, and we never do that in Denmark. Dont know if that mean we are lazy or dumber but it is a very interesting observation.
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Restaurants (1)Amazing view!
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"Do or do not- there is no try! Yoda"
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July Workout Challenge
July workout - arms, buns & ab challenge Leg lifts: - like on back and either rotate legs up to bent knee then straight leg, or straight up.
Squats challenge.. weight loss
3000 squats and 1000 push ups 30-day challenge. On day 19! Christina and I still going strong!
7065.30_2D00_day_2D00_ab_2D00_challenge_2D00_tcb_2D00_portrait.png 2,480×5,000 pixels
At Home 30-Day Cardio Challenge #fit2014 #workoutroutine #30daychallenge
30 Day Beach Body Workout Challenge
This 30 day crunch workout challenge has been designed as a great way to learn how to do the crunch exercise and get super strong abs.
<b>Learn how to do a proper squat — a staple of any effective workout routine — and build the fitness to do 100 in a single day.</b>
Going to do this, my abs need more of a challenge since they are genetically strong to begin with.
Disney 30 Day Challenge- Ok so I'm redoing the challenge again! And I'm actually going to stick to it this time! Ended up picking this one


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Hand Eye Coordination
Awhile back my boyfriend brought me to visit the Cambridge Antique Mall. A beautiful orange Lucite bracelet caught my eye amidst infinity vintage baubles and I thought, "This is very now and must have." And then I thought about how I must have gas in my car and had so many bills that were due very now. So I put it back. I am here to report I have non-buyer's remorse.
As it turns out, bracelets are having a moment right now. They were all over Paris. My remorse took a turn for the worse when I saw the Balenciaga show and none other than orange Lucite-looking bracelets were all over those bitches' wrists.
There are two morals to this story. First and foremost: trust your eye. Your style has instincts, just like any other highly developed sense. Secondly: bracelets. In fact, they have been a secondary accessory to me, not in small part because I have tattoos on both arms. I've seen bracelets be old lady or overstyled. However, for right now they are the exact right thing to bring zeal to long sleeves and intrigue to solids. My specific interest is Lucite and Bakelite vintage styles: solid, shapely, smooth, and sizeable. Put it on me!
Balenciaga wasn't the only label with wrist action. Hermès really hammered home how important it is for me to go grocery shopping instead of eating out all the time so I can buy on-trend accessories before everyone else. The show featured big stacks of bangles in wood and orange. The arms were better than most of the outfits.
Balmain had bracelets too. These are beautiful:
There were a few too many bracelets at Giambattista Valli. Her forearm looks like a sales rack. Well actually, it is. But you get my point. Bracelets.
I'm drawn to Balenciaga-like vintage-looking lucite bracelets because I think they will bring feminine flare to winter's buttoned up blouses and color to the season's darker palette. I suggest orange, cream, goldenrod, fuschia, light blue. Here are some choice examples from Etsy:


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USPS warns customers about newest scam
Postal employees should be aware that customers are receiving bogus e-mails about a package delivery. The e-mails contain a link that, when opened, installs a malicious virus capable of stealing personal information from computers.
Postal Inspectors say customers should not click on the link. Like most viruses sent by e-mail, clicking on the link will activate a virus that can steal information--such as user names, passwords and financial account information.
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Tata Coffee - Plantation Trails Bungalows: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Pollibetta, India.
Tata Coffee - Plantation Trails Bungalows offers 3.5-star accommodation in Pollibetta. It also features parking.
Hotel description
Bungalows at the property are comfortable and offer cable/satellite channels.
Guests can wake up to breakfast served each morning at Tata Coffee - Plantation Trails Bungalows before heading off to discover the local area.
Those with a car can visit Siddapura and Ponnampet, both within easy driving distance of the property.
Hotel features
Cable / Satellite TV, TV
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Users who viewed Tata Coffee - Plantation Trails Bungalows also viewed these 3 stars Pollibetta hotels:
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Hanchikad, Pollibetta
Hanchikad, Pollibetta
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- Tank Side Estate
3.2 km
- The Porcupine Castle
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- Palm Valley Resort Ponnampet
4.1 km


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- $274,000
- 1 Beds
- 1 Baths
- Questions?
Lot 18 Hatheume Lake Resort Road
Misc. Listing for sale in Central Okanagan J
Built in 2005, this high end construction chalet has never been in any rental pool, and used by the owners exclusively. Located within a resort providing water, electricity, propane, management, septic (no outhouse!) and rental opportunities (not mandatory). Full bathroom (hot showers), full kitchen, bedroom plus loft with 2 queen beds. Full width deck on front with lake and mountain views. Here is the kicker. Not only do you have your own chalet, but also joint freehold (no lease here) ownership in 15 acres with over 1000 ft frontage on Hatheume Lake. Private shared docks and boat launch, joint ownership in the main lodge with use of common room for gatherings; joint ownership in the commercial operation that shows a return to the owners. In addition there is year round onsite managers who run the commercial operation, handle rentals (if you wish) and make sure all aspects of the operation of the resort and services are maintained and fully operational. Most important of all you have on site security and can rest assured your chalet and possessions are looked after. All you have to do is arrive and unpack and start to enjoy life. The chalet comes fully equipped and includes a boat with motor. Hatheume is a trophy rainbow trout fishery, and there are numerous lakes and trails in the surrounding area. 1 hour easy drive to Kelowna with West Kelowna shopping and services even closer.
- Taxes Info not provided
- Fronting Info not provided
- Poss. Date Info not provided
- Lot Size Info not provided
- Age 11 years
- Parking Spaces Info not provided
- Basement Info not provided
- Type Recreational
- Style Other
This is an MLS®-listed Misc. Listing for sale located at in Central Okanagan J It's listed for $274,000 and has been on the market for 145 days. The house is 750 square feet and has 1 beds and 1 baths. Estimated monthly mortgage costs are $* per month.
Main level Level
Living room( 3' 3'' x 6' 7'' )
KitchenInfo not provided
Master bedroomInfo not provided
Dining room( 22' 12'' x 26' 3'' )
Full bathroomInfo not provided
Other RoomInfo not provided
Second level Level
LoftInfo not provided
- Gas Info not provided
- Sewers Septic System
- Hydro Info not provided
- Water & Water Supply Info not provided
- Heat Electric, Propane
- Cable TV Info not provided
- Energy certified Info not provided
- Cert. Level Info not provided
- Green info Info not provided
- CAC: Info not provided
- Broker: B.C. Realty Match
TheRedPin offers the latest data on schools in your neighbourhood.
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$1,028 cash back from commission on this property*
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- Worldwide Rank #85,464,852
- Follower/Following Ratio 33
- Daily New Followers 0
りむってください Twitter Stats
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@0124Saho2525 has posted 1,943 tweets in the last 12 days, which translates to an average of 161.9 tweets per day.
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@0124Saho2525 has 33 followers on Twitter.
This account is #85,464,852 in the worldwide rank of the most popular Twitter users.
りむってください Following on Twitter
@0124Saho2525 is following 1 Twitter accounts.
Last month this account stopped following 58 users.
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@0124Saho2525 will hit 7 followers in the next 3 months, and -74 in one year.
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Twitter Counter is the #1 Twitter stats site powered by Twitter. It all started in June 12, 2008 and we grew rather rapidly because of our Twitter Counter badge. The button is a nice small image that shows your visitors how many followers you have on Twitter. Within a year the button was on many many blogs around the world and we displayed more than 100 million buttons in one month. We track follower stats for over 180 million users now.


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Ann Coulter, Sarah Palin Already Mad at Donald Trump: 'Big...
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Family and friends of Oakland fire victims take to social media
Monthly Archive for July, 2013
Grateful Dead and the 710 Ashbury St. drug bust of 1967
We have quite a few blind spots in the Chronicle photo morgue, and one of the biggest ones is the music files. The newspaper didn't cover rock music very much to begin with in the 1960s, and at some …
What Charley and Humphrey can teach KTVU about the Asiana blunder …
Even for this KTVU defender, the fallout from the station's Asiana Flight 214 fiasco has been two weeks of frustration. I've long thought that KTVU is the most reputable local TV station in the …
Cineprep: Six things to do before seeing "Pacific Rim"
I've long believed that movie-going is heavily influenced by outside stimuli. There's a pack mentality — if everyone else in a theater is laughing at a lowbrow comedy, you're more likely to laugh …
The Pong goodbye: Arcade photos from the 1970s and 1980s
Today's edition of Let's Go to the Morgue! is a subject close to my heart: Arcades of the Bay Area in the 1970s and 1980s. Please read this post while listening to Rush's "Subdivisions" while …
There's a "Fruitvale Station" movie poster at Fruitvale Station
I'm a 10-year regular at BART's Fruitvale Station, and this morning noticed a movie poster for "Fruitvale Station" near the turnstiles inside the station — not far from the tragic events that …
ILM's Hal Hickel on "Pacific Rim," and his 1978 letter to Lucasfilm
I like hearing the origin stories of Bay Area special effects veterans. Talk to a visual effects artist between the ages of 40 and 65, and there's usually an awkward tale of hero worship that shaped …
The Japan Air Lines miracle water landing of 1968 (reprinted)
Ed. note: Today's crash of a Boeing 777 likely reminded Bay Area residents of a similar 1968 incident, where a DC-8 fell short of the runway (with far less tragic results). My Chronicle colleagues …
My all-time favorite Herb Caen photo …
I wrote a piece in today's San Francisco Chronicle celebrating the 75th anniversary of Herb Caen's first column in the newspaper, which appeared July 5, 1938. You'll have to check out the newspaper to …
Happy 40th birthday Sutro Tower!
As a San Francisco landmark, Sutro Tower has always gotten screwed. It opened in 1973 to a flood of negative coverage, has an overachieving sister landmark that hogs all the accolades, is virtually …
BART strike winners and losers: Cute kids dressed as BART trains
Yesterday's "BART strike winners and losers, Day 1" received a nice response, although several commenters mistook my attempt to honor local traffic reporters as a referendum on the entire U.S. history …


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Mar 08, 2005
ABU DHABI [MENL] -- The United Arab Emirates has been examining an offer ofadvanced artillery munitions.
Jun 28, 2004
WASHINGTON [MENL] -- Congress has questioned a Defense Department contractfor the purchase of Israeli ammunition that could end up with U.S. soldiersin Iraq.
Jun 04, 2004
WASHINGTON [MENL] -- The Bush administration has approved an Israeli requestfor precision-guided munitions to Israel.
Apr 30, 2004
WASHINGTON [MENL] -- Israel and the United States have launched full-scaleproduction of the Arrow-2 missile interceptor.


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APPEAL from the Circuit Court of Du Page County; the Hon.
ROBERT A. COX, Judge, presiding.
The State appeals from an order of the trial court which dismissed a renewed criminal complaint for reckless driving (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-503), brought against the defendant after an original criminal complaint for the same offense was nol-prossed by the State.
The defendant was originally charged by a criminal complaint, sworn to on December 20, 1977, with having committed the offense of reckless driving on the 19th of December, 1977. The defendant was arrested on January 3, 1978, and was released on a $1000 bond. After various motions, the State's Attorney nol-prossed the original complaint on March 20, 1978. On March 22, 1978, a new complaint for the same offense was sworn out, and the defendant was again arrested on March 22 by an arrest warrant and again was released upon a $1000 bond. On March 27 the defendant thereupon filed a motion to dismiss the complaint on the alleged applicability of the case of People v. Nelson (1974), 18 Ill. App.3d 628, 310 N.E.2d 174. The trial court, relying on Nelson, dismissed the complaint on May 15, 1978, and the State has appealed.
Both the defendant and the State in their pleadings herein have argued the applicability of the Supreme Court Rules on trial court proceedings in traffic court and conservation proceedings. (Ill. Rev. Stat. 1977, ch. 110A, pars. 504, 505.) In pertinent part those rules are set forth as follows:
"Rule 504. Appearance Date The date set by the arresting officer for an accused's appearance in court shall not be less than 10 days but within 45 days after the date of the arrest, whenever practicable. It is the policy of this court that an accused who appears and pleads `not guilty' to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting officer's failure to appear on that date, in and of itself, shall not normally be considered good cause for a continuance.
Rule 505. Notice to Accused When issuing a Uniform Citation and Complaint, a conservation ticket or a Notice to Appear in lieu of either, in counties other than Cook, the officer shall also issue a written notice to the accused in substantially the following form:
The remainder of Supreme Court Rule 505 then sets forth the procedure to be followed by the accused upon a plea of not guilty or upon a demand for a trial by jury.
We note that the trial court dismissed the renewed criminal complaint, based upon People v. Nelson, holding that Supreme Court Rules 504 and 505 were applicable. In Nelson the court stated:
"As indicated, the objective of the Supreme Court Rules was to implement the policy of the court to the effect that the accused who appears and pleads not guilty to an alleged traffic or conservation offense should be granted a `trial on the merits' on the appearance or trial date set. If we were to construe such Rules in the manner contended for by the State, then the Rules would become meaningless, since a dismissal for failure of the State to proceed at the time hearing is set, would simply mean that the State could refile the same charge repeatedly and force a defendant to come into court again and again on each occasion when the charge is refiled, until finally the cause is disposed of through trial. This was obviously not the objective of the Rules, * * * As a caveat, we specify that this procedure would not be applicable to causes other than those specifically provided for in the Supreme Court Rules, and that the application of this particular construction is limited to traffic and conservation cases as noted in the Rules." (18 Ill. App.3d 628, 631-32, 310 N.E.2d 174, 178.)
Both the State and the defendant in this cause have misconstrued the applicability of Nelson. Additionally, they have labored under the impression that the instant case comes within the purview of Supreme Court Rules 504 and 505. That is not the case before us.
1, 2 In People v. Claeys (1976), 44 Ill. App.3d 83, 357 N.E.2d 886, a most similar situation was presented to the appellate court. In that case a defendant was charged with the offense of reckless driving (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-503), by a criminal complaint which was signed by a private citizen. The defendant was arrested and served with a copy of the complaint the following day. The court in Claeys discussed the applicability of People v. Nelson, and pointed out that:
"Nelson involved a fact situation squarely within the contemplation of Rule 504, namely, a uniform traffic violation where the police officer is the State's chief witness." (44 Ill. App.3d 83, 85, 357 N.E.2d 886, 887.)
The only difference between Claeys and the case before us is that in Claeys a private citizen signed the complaint whereas in this case the complaint was signed by a police officer. Nonetheless, the instant proceeding was commenced by the filing of a criminal complaint, not by the issuance of a traffic citation, which would be within the purview of Supreme Court Rules 504 and 505. The defendant was charged with the offense on the 20th of December and arrested with a criminal warrant on the 3d of January. The Uniform Citation and Complaint is not the only method of prosecuting a traffic violation. Reckless driving can be commenced by an indictment, information or complaint, pursuant to section 111-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-1). In the case of prosecution of traffic offenses by indictment, information or complaint, the usual procedure for a criminal charge would apply and Rules 504 and 505 would not be applicable. And, that is the situation before us.
3 The other issue involved, and not argued, by counsel for either the State or the People, is the right of the State to nol-pros and refile a complaint for the same offense. This issue was passed upon in People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265. When nolle prosequi is entered before jeopardy has attached, it does not operate as an acquittal so as to prevent a subsequent prosecution for the same offense but leaves the matter in the same condition as before the prosecution. See also People v. Garcia (1972), 7 Ill. App.3d 742, 288 N.E.2d 637.
A somewhat similar situation was found in People v. Kenney (1976), 39 Ill. App.3d 941, 351 N.E.2d 574. In that case this court considered an appeal which dismissed a renewed charge of reckless driving, as herein, after a prior dismissal for want of prosecution. The trial court in that case dismissed the cause because the State's Attorney failed to appear. We considered People v. Nelson in that case and reversed the judgment of the trial court, which denied the State's refiling of the charge.
4 We therefore find that Supreme Court Rules 504 and 505, applicable to traffic citations, do not apply to a formal written complaint resulting in the arrest of the defendant by a criminal warrant. We therefore reverse the judgment of the trial court and remand the cause for trial, consistent with this opinion.
Reversed and remanded.
SEIDENFELD and NASH, JJ., concur.
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Flutter sleeve gown
By Miriam
from undisclosed
See all my reviews
Comments about Adrianna Papell Flutter Sleeve Mesh Gown:
Dress is regal looking but fit too snug. I am returning it!
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Really pretty formal dress
By Martha
I love it! Very elegant, comfortable, very flattering, beautiful color, I received lots of complements. I wored it for a formal celebration. Only cons its that it was to long for me and I had to fixe it.


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Premier Inn Coventry City Centre: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Coventry, United Kingdom.
Premier Inn is situated in Coventry and is close to local attractions, including Coventry Cross. It is ideally located for those wanting to visit local attractions.
Hotel description
This 3-star hotel offers a 24-hour reception, a lift and luggage storage.
There are 119 rooms at Premier Inn Coventry City Centre, each offering all the essentials to ensure a comfortable stay. There are also several rooms designed for families.
A satisfying breakfast is available every morning at Premier Inn City Centre Coventry, and there are numerous cafés and eateries close by. Drinks can be enjoyed at the in-house bar.
Local tourist attractions near Premier Inn include Coventry Cathedral, Coventry University and the Herbert Art Gallery and Museum. It is within a 20-minute walk of Pool Meadow Bus Station and Coventry Railway Station, which allows for convenient access in and around Coventry.
Hotel features
Restaurant, Air Conditioned, Vending Machines
Elevator / Lift, 24 Hour Reception, ATM / Cash Machine, Luggage Storage
Availability and Prices
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Users who viewed Premier Inn Coventry City Centre also viewed these 3 stars Coventry hotels:
Highcroft Guest House Coventry
65 Barras Lane, Coventry
65 Barras Lane, Coventry
Premier Inn Coventry City Earlsdon Park
Earlsdon Park, 53 Butt Road, Coventry
Earlsdon Park, 53 Butt Road, Coventry
Corus Chace Hotel
London Road, Toll Bar End, Coventry
London Road, Toll Bar End, Coventry
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Nearest hotels
- ABC Motels
0.1 miles
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0.2 miles
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The typical asking rate per listing is in the $10's per square foot per year. The Baldwin County submarket is seeing a a boost in rates. In the last 3 months, the median rate went up $1 per sqft per year. That's a 9% rise in rent.
In the last 90 days, 39 listings have been made available, which means listings are probably leasing quickly. You'll want to be prepared to tour spaces as quick as possible. About 8% of the office spaces in the Baldwin County are subleases, so you will probably need to consider the implications of signing a direct lease with the building. There aren't many listings below 2,000 square feet on the market, so finding a space for a small business might be tough.
The standard measurement for office space in this area is around 1,900 sqft. Most properties in this area are approximately 1 stories. Most buildings in this region were built in 1999 and are Class A.
Trends and status of the commercial real estate market in Baldwin County.
Market Report
Real time and historical data on commercial real estate listings in Baldwin County.


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On the doorstep of my hotel there is the weekend night market, great place to look for bargains.. I was able to buy the 2 handmade embroidered bags for only 90,000 dong. Of course its after a long bargaining as initial price is 120,000 for the 2.
The seller are an old couple, they dont have their own booth, only on a cloth placed on the streets, with their bags and they dont speak English, since I dont speak Vietnamese either, we bargain with calculator , LOTS OF SMILES and a lot of facial expression. :-)
Its one of the best deals that Ive got, as on some of the stalls at the night market, one bag is selling at 100,000 each, goodness how I wish I bought more. :-)
Night market / local market is always a great introduction to the local culture...
Dress Code hide your camera, as its a testament that you are a tourist, and almost automatically increase the price by X times.
street smarts, there are some petty crimes, pick pockets since lots of people..
So much of local specialities in the night market that you really need a bigger belly to stomach them.....
Cheap and tasty is how i describe the snacks and small eats in the night market. Don't worry, non of us had any stomach upset after consuming them.
To go with your beer have a snack freshly cooked at your stool by one of the many street vendors. They carry around a small pot of burning charcoal and a basket of thinly sliced dried meat and fish. When you ask for something - I had the fish (I think) - they fan up the charcoal and put the meat directly on it for a couple of minutes and serve it with a small bowl of spicy dip.


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Blue topaz, peridot, pink tourmaline and citrine nuggets set among cultured freshwater pearls. The earrings are pink tourmaline (9mm, 2.5 cts each) or peridot (7mm, 2.4 cts each) cushion cabochons set into 18k yellow gold with French clip posts for pierced ears. 7⁄8"w x 7⁄8"h.
Item #: MZ13754PT-E
Catalog HotKey: P1175
Herend porcelain from Hungary, handmade and handpainted with 24K gold accents.
1" x 2 ¼" x 3 ¼" h.
Elegant citrine necklace set in 18k yellow gold with diamond accents.
Measures ¾" w x 16 ½" l x ⅝" h.
Ebonized and parcel gilt chairs. Turned and carved overscrolled top rail centered by gilt and painted pierced splat in the form of two interlacing ovals within another oval. Caned seat with silk cushion embroidered with coronets. Based on a Regency original circa 1815.
Pure cashmere throws are unmistakable for their softness, comfort and color. Generously sized for extra warmth on a bed, sofa or chair, or in the car. Handmade and handfinished in Biella, Italy.
Measures 70" x 55".
Gien's Sologne pattern is named for the Sologne region of central France, renowned for its abundant game. It is a beautiful place to quietly observe the inhabitants of the forests and lakes. Handmade in France.
Measures 9" d.
Holiday shopping made easy with gifts for everyone on your list.