Administrative Law - Standing - District Court Allows Increased Risk Suit without Addressing Standing

Harvard Law Review, March 2014 | Go to article overview

Administrative Law - Standing - District Court Allows Increased Risk Suit without Addressing Standing


Administrative Law--Standing--District Court Allows Increased-Risk Suit Without Addressing Standing.--Center for Food Safety v. Hamburg, No. C 12-4529 PJH, 2013 WL 1741816 (N.D. Cal. Apr. 22, 2013).

The Constitution limits the jurisdiction of federal courts to hearing "Cases" or "Controversies." (1) The Supreme Court has interpreted this requirement to mean that a plaintiff wishing to sue in federal court must show an injury in fact that has been caused by the behavior complained of and that is likely redressable by a judgment in favor of the plaintiff. (2) The Court has also instituted a number of "prudential" limits, such as the rule barring generalized grievances more appropriate for resolution through the political process. (3) In light of standing's role as a jurisdictional bar, the plaintiff bears the burden of establishing standing, and courts must raise Article iii standing concerns sua sponte if the parties fail to do so. (4) Recently, in Center for Food Safety v. Hamburg, (5) the United States District Court for the Northern District of California allowed suit for declaratory and injunctive relief by the Center for Food Safety (CFS), a public interest group, against the Food and Drug Administration (FDA) for failure to promulgate a number of food safety rules by a congressionally mandated deadline. in an opinion granting the requested relief and ordering the FDA and CFS to agree to a new judicially acceptable deadline, (6) the court never engaged in a standing analysis, implicitly accepting CFS's reliance on probabilistic harms to establish a concrete injury. While the FDA did not challenge CFS's standing in its motions, the district court's failure to analyze standing sua sponte led the court to ignore problematic questions of causation, redressability, and generalized harms, and to tacitly accept a view of probabilistic harms as injury in fact, which appears to contravene the Supreme Court's stance, as clarified recently in Clapper v. Amnesty International USA. (7)

In 2011, Congress passed the FDA Food Safety Modernization Act (8) (FSMA) to modernize the nation's food safety laws by "mandating science-based standards and controls," by giving the FDA greater prophylactic "inspection and enforcement powers" to prevent food safety hazards, and by "improving coordination among federal, state, and foreign food safety agencies." (9) To ensure the rapid realization of this goal, Congress required the FDA to publish seven new food safety regulations within eighteen months of the FSMA's effective date. (10) Because of the complexity and novelty of the regulations--equiring the FDA both to create a new international regulatory system and to coordinate this new system with other federal, state, and foreign officials, all while continuing to oversee over $400 billion worth of food and hundreds of thousands of facilities--the FDA found Congress's "aggressive timeline[]" to be "unachievable." (11) Finding it impossible to simultaneously develop and promulgate seven distinct rules, the FDA prioritized by first developing four "foundational" rules with the greatest public health benefits, to be followed later by the remaining three rules. (12) At the time of the suit, the first four rules were undergoing review by the office of Management and Budget, while the latter three rules were at different stages of development within the FDA. (13)

in August 2012, just over eighteen months after the FSMA was enacted, CFS filed suit under the Administrative Procedure Act (14) (APA), alleging that the FDA had failed to promulgate the rules by their statutorily mandated deadline. (15) CFS sought a declaratory judgment that the FDA violated the FSMA and the APA by failing to issue the rules, as well as an injunction ordering the FDA to issue the regulations as soon as possible. (16) CFS alleged that the FDA's delay injured CFS and its members by increasing the risk that they might contract a foodborne illness. (17) To demonstrate the concreteness of the injury complained of, numerous CFS members filed declarations alleging personal harms as a result of the FDA's inaction. …

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