Bush v. United States Department of Health and Human Services

Background

The court had granted William David Bush permission to proceed without paying the filing fee and therefore screened his complaint under 28 U.S.C. § 1915. Bush sued the United States Department of Health and Human Services and Secretary Xavier Becerra. He asserted one claim under the Administrative Procedure Act, alleging that the agency had failed to enforce the Filled Milk Act as it related to organic dairy milk protocols.

Bush alleged that milk processors were using vegetable oils as carriers for added vitamins and marketing products containing those oils as Grade A organic dairy milk. He sought declaratory and injunctive relief requiring the defendants to enforce the Filled Milk Act.

Court’s Analysis

The court concluded that the complaint was insufficiently pleaded. It explained that a plaintiff suing under the Administrative Procedure Act must have standing, meaning an actual or imminent injury connected to the defendant’s conduct that a court order would likely remedy. The court found that Bush alleged no facts showing that the defendants’ inaction injured him. It therefore concluded that he had not established either constitutional standing or the additional standing requirement applicable to Administrative Procedure Act claims.

The court also addressed the limits on claims challenging agency inaction. Under 5 U.S.C. § 706(1), a court may compel only a specific agency action that the agency is legally required to take. The court found that Bush had not identified such a specific action. Instead, it characterized his claim as a broad challenge to the agency’s enforcement program, which the court held was not permitted under the Administrative Procedure Act. The court therefore stated that it lacked subject-matter jurisdiction over the claim.

Order

The court issued an order to show cause rather than dismissing the case immediately. It ordered Bush, by October 12, 2021, either to file an amended complaint correcting the identified deficiencies or to respond by explaining why his claim was sufficiently alleged. The court stated that if Bush did not respond, the case would be reassigned to a United States district judge with a recommendation that the case be dismissed. The court also continued the case-management conference from October 29 to December 3, 2021. The opinion states that Bush had declined consent to magistrate-judge jurisdiction and that reassignment was intended; the signed order is by Joseph C. Spero, Chief Magistrate Judge.