1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 WILLIAM DAVID BUSH, 7 Case No. 21-cv-06055-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE 9 UNITED STATES DEPARTMENT OF 10 HEALTH AND HUMAN SERVICES, et al., 11 Defendants. 12

13

14 I. INTRODUCTION 15 Having granted Plaintiff’s request to proceed in forma pauperis under

1915(a)(1), the Court is required to review Plaintiff’s complaint under

(e)(2)(B) 17 to determine whether any claims are subject to dismissal on the basis that they: (1) are frivolous 18 or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief 19 from a defendant who is immune from such relief.

(e)(2)(B); see Marks v. 20 Solcum,

(9th Cir. 1996). Because Plaintiff has declined consent to magistrate 21 jurisdiction pursuant to

(c), the undersigned intends to reassign this case to a 22 district judge with a report and recommendation addressing the adequacy of Plaintiff’s claims. 23 For the reasons set forth below, the Court finds that Plaintiff’s claims are insufficiently pled. 24 Therefore, Plaintiff is ORDERED TO SHOW CAUSE why this case should not be dismissed. 25 II. THE COMPLAINT 26 Plaintiff brings this action against the Department of Health and Human Services (“HHS”) 27 and the Secretary of HHS, Xavier Becerra, seeking declaratory injunctive relief under the 1 milk,” that is, “any milk, cream, or skimmed milk . . . to which has been added, or which has been 2 blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in 3 imitation or semblance of milk, cream, or skimmed milk[.]” Complaint ¶ 3. According to 4 Plaintiff, the “Filled Milk Act, promulgated by Congress in 1923, prohibits the manufacturing . . . 5 [of] any filled milk products” for sale in interstate commerce and the constitutionality of the Act 6 has been upheld, yet HHS is failing to enforce it “as it pertains to statutory Organic Dairy Milk 7 protocols.”

at ECF p. 5. 8 Plaintiff alleges that “Many Milk processing companies are filling Milk in violation of the 9 Federal Statutes” because “FDA guidelines on optional vitamin fortification are unspecified on 10 what ‘Carriers’ may be utilized -- leading milk processors to use oils other than that allowable 11 under the law.”

Thus, he alleges, “Milk Processors are substituting dairy milk fats and oils 12 with vegetable alternatives, which are added under the guise of a vitamin A & D ‘carrier’ in the 13 products they advertise to be Grade A Organic Dairy Milk.”

at ECF pp. 5, 7. He further 14 alleges that “The Milk Processors imitation milk product marketing is indistinctive and 15 deceptively marketed as Organic Dairy Milk, swindling the public into the belief that the blended 16 vegetable oil semblance containing in part pasteurized non fat or low fat dairy milk, is organic 17 dairy milk.”

at ECF p. 7. Plaintiff asserts a single claim under the APA based on “Agency 18 inaction not in accordance with law.”

He asks the Court to order Defendants to enforce the 19 Filled Milk Act. 20 III. ANALYSIS 21 A. Legal Standards Under

and Rule 12(b)(6) 22 Where a plaintiff is found to be indigent under

(a)(1) and is granted leave 23 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 24 (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 25 monetary relief from a defendant who is immune from such relief.

(e)(2)(B); see 26 Marks v. Solcum,

(9th Cir. 1996). 27 To state a claim for relief, a plaintiff must make “a short and plain statement of the claim 1 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); 2 see also Diaz v. Int’l Longshore and Warehouse Union, Local 13,

(9th Cir. 3 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of 4 material fact in the complaint as true and construe[s] them in the light most favorable to the non- 5 moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S.,

, 975 6 (9th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as true is 7 inapplicable to legal conclusions [and] mere conclusory statements,” Ashcroft v. Iqbal,

(2009) (citing Bell Atl. Corp. v. Twombly,

(2007)), and courts “do not 9 necessarily assume the truth of legal conclusions merely because they are cast in the form of 10 factual allegations.” Coto Settlement v. Eisenberg,

(9th Cir. 2010) (internal 11 quotation marks omitted). The complaint need not contain “detailed factual allegations,” but must 12 allege facts sufficient to “state a claim to relief that is plausible on its face.”

at 678 (citing 13 Twombly,

). 14 Where the complaint has been filed by a pro se plaintiff, courts must “construe the 15 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler,

338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 17 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 18 amendment.” Noll v. Carlson,

(9th Cir. 1987), superseded on other grounds 19 by statute, as recognized in Lopez v. Smith,

(9th Cir. 2000) (en banc). Further, 20 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 21 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 22 litigant uses the opportunity to amend effectively.”

(quoting Ferdik v. Bonzelet,

(9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant 24 will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t,

(9th 25 Cir. 1988) (quoting Noll v. Carlson,

(9th Cir. 1987)). 26 B. The APA 27 The APA affords a right to seek judicial review of agency action to a person who suffers a 1 relevant statute.”

. “To the extent necessary to decision and when presented… 2 [t]he reviewing court shall . . . (1) compel agency action unlawfully withheld or unreasonably 3 delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be . 4 . . (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

6 C. Standing 7 Under the “case” or “controversy” provisions of Article III of the U.S. Constitution, a 8 plaintiff is required to have standing to pursue a claim in federal court. Bennett v. Spear,

154, 167 (1997). “Th[e] ‘irreducible constitutional minimum’ of standing requires: (1) that the 10 plaintiff have suffered an ‘injury in fact’—an invasion of a judicially cognizable interest which is 11 (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that 12 there be a causal connection between the injury and the conduct complained of—the injury must 13 be fairly traceable to the challenged action of the defendant, and not the result of the independent 14 action of some third party not before the court; and (3) that it be likely, as opposed to merely 15 speculative, that the injury will be redressed by a favorable decision.” Id. (quoting Lujan v. Defs. 16 of Wildlife,

(1992)). 17 Further, “a person suing under the APA must satisfy not only Article III’s standing 18 requirements, but an additional test: The interest he asserts must be ‘arguably within the zone of 19 interests to be protected or regulated by the statute’ that he says was violated.” Match-E-Be- 20 Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

(2012) (quoting 21 Association of Data Processing Service Organizations, Inc. v. Camp,

(1970)). 22 This prudential standing test “ ‘is not meant to be especially demanding.’ ”

(quoting Clarke v. 23 Securities Industry Assn.,

(1987)). Rather, the test is applied “in keeping with 24 Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively 25 reviewable.’ ”

(quoting Clarke,

). 26 Plaintiff has alleged no facts showing that he has been injured by Defendants’ inaction. 27 Thus, he has not established Article III standing or prudential standing to assert his APA claim. 1 D. Subject Matter Jurisdiction 2 The Supreme Court has held, as a matter of subject matter jurisdiction, that a claim based 3 || on agency inaction under

(1) “can proceed only where a plaintiff asserts that an 4 || agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah 5 Wilderness All.,

(2004) (“SUWA”) (emphasis in original). Thus, Section 706(1) 6 || does not permit “broad programmatic attack[s].”

The Court in SUWA explained the reason for 7 these limitations: 8 If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be 9 empowered, as well, to determine whether compliance was achieved—which would mean that it would ultimately become the 10 task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into 11 day-to-day agency management. 12

. Plaintiff has not identified any discrete action HHS is required to take but instead 13 brings the sort of a broad programmatic challenge the Supreme Court has found is not permitted 14 under the APA. Therefore, the Court lacks subject matter jurisdiction over Plaintiffs claim. 15 IV. CONCLUSION 16 Accordingly, no later than October 12, 2021, Plaintiff must either file an amended 17

complaint curing the deficiencies identified herein or file a response to this Order addressing why Z 18 his APA claim is sufficiently alleged. If Plaintiff does not respond to this Order by October 12, 19 2021, the case will be reassigned to a United States district judge with a recommendation that the 20 case be dismissed. The case management conference previously set for October 29, 2021 at 2:00 21 p.m. is continued to December 3, 2021 at 2:00 p.m. 22 IT IS SO ORDERED. 23 24 Dated: September 4, 2021 25 □□ 26 JQSEPH C. SPERO ief Magistrate Judge 27 28