Bush v. Clover Stornetta Inc.

Background

William David Bush sued Clover Stornetta, Inc., Safeway, Inc., the United States Department of Health and Human Services, and the United States Department of Food and Drug Administration. He alleged that Clover deceptively marketed milk as organic dairy milk even though it contained, in part, ultra-pasteurized dairy milk. He sought an injunction enforcing the Federal Filled Milk Act, 21 U.S.C. § 61 et seq. Bush proceeded without a lawyer.

Magistrate Judge Sallie Kim screened the complaint under 28 U.S.C. § 1915(e), which requires courts to review complaints filed by people proceeding without paying the filing fee. She found no subject-matter jurisdiction—the court’s legal power to hear the case—and gave Bush an opportunity to amend. The screening order stated that diversity jurisdiction was unavailable because Bush was alleged to be a California resident, Clover’s principal place of business was alleged to be in Petaluma, California, and the complaint did not allege more than $75,000 in controversy. It also stated that the Filled Milk Act did not create a private cause of action allowing an ordinary citizen to sue for an alleged violation.

Bush’s amended complaint invoked the Freedom of Information Act, 5 U.S.C. § 552, asserting that his contacts with the Secretary of Health and Human Services had not produced a further agency response. He later filed an objection changing the cited provision to 5 U.S.C. § 551(13), under the Administrative Procedure Act.

Analysis

The court adopted Magistrate Judge Kim’s report and recommendation after reviewing Bush’s objection. It held that the amended filing did not establish federal-question jurisdiction under the Freedom of Information Act because that statute concerns disclosure of agency information and processes, not the agency’s underlying enforcement decisions. Bush also did not claim that an agency had failed to respond to a Freedom of Information Act request.

The court likewise held that Bush had not shown jurisdiction under the Administrative Procedure Act. Such review generally requires final agency action for which there is no other adequate remedy. A claim based on an agency’s failure to act must identify a discrete action the agency was legally required to take. The court found that Bush had shown neither final agency action nor an unlawfully withheld required action. It also relied on the principle that an agency’s decision whether to prosecute or enforce is generally committed to the agency’s discretion, and noted that the Filled Milk Act authorizes the Secretary of Health and Human Services to make and enforce regulations the Secretary considers necessary.

Disposition

Judge Yvonne Rogers found that Bush had failed to demonstrate federal-question or subject-matter jurisdiction, adopted Magistrate Judge Kim’s report in every respect, and incorporated the court’s discussion of the Administrative Procedure Act claim. The court dismissed the case with prejudice for lack of subject-matter jurisdiction, terminated the case, and directed the clerk to close it.