Ajay Nutrition Foods, Inc. v. Food & Drug Administration
Citation | 378 F. Supp. 210 |
Decision Date | 05 April 1974 |
Docket Number | Civ. A. No. 328-73. |
Parties | AJAY NUTRITION FOODS, INC., d/b/a Dave's Diet and Nutrition Foods, et al., Plaintiffs, v. FOOD AND DRUG ADMINISTRATION, Department of Health, Education and Welfare, et al., Defendants. |
Court | U.S. District Court — District of New Jersey |
Bass & Ullman, New York City, by David Ficksman (New York bar), Henry L. Gurshman, Metuchen, N. J., for plaintiffs.
Herbert J. Stern, U. S. Atty., Newark, N. J., by William J. Hunt, Asst. U. S. Atty., for defendants.
This is an action against the Food and Drug Administration (FDA), its Commissioner,1 and the Secretary of Health, Education and Welfare, brought as a class action2 by the corporate plaintiffs, who are engaged in the sale and distribution of health food products and who are members of the National Nutritional Foods Association. Plaintiffs sue to enjoin defendants from issuing certain press releases and public announcements that are alleged to be damaging to their businesses, and ask the Court to award damages totaling $500 million. Defendants have brought the instant motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The action centers on events contemporaneous with publication by the FDA of regulations affecting the health food "industry." The procedural history of these regulations has a bearing on this action. As summarized by Judge Gurfein in National Nutritional Foods Ass'n v. Schmidt, 367 F.Supp. 889 (S.D.N.Y. 1973):
It is not contested by any of the parties that the regulations did not at the inception of this action, and do not as yet, have the force of law.3 Petitions to review the regulations were filed in United States Courts of Appeals for three Circuits4 and are now consolidated, under 28 U.S.C. § 2112(a), before the Second Circuit. See National Nutritional Foods Ass'n v. FDA, 491 F.2d 1141 (2d Cir. 1974).
Specifically, plaintiffs state that certain "press releases, public announcements and other communications" issued by the FDA "have resulted in the deprivation of property without due process of law and the wrongful and unlawful interference with the rights of the plaintiffs and the other members of the class to carry on a business." Plaintiffs allege that the class has been referred to as "nutrition quacks," "food faddists," "health quacks," and that the products that are produced have been referred to as "shotgun mixtures." Further, plaintiffs claim that the FDA has sought to discredit certain fastly held tenets of health food enthusiasts.5 Lastly, plaintiffs allege that the FDA statements "are knowingly and maliciously false and untrue and not justified by any fair balance of competing social interests . . . they are not factual, but rather represent character attacks by the defendants."
Plaintiffs argue that Section 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. § 702, confers jurisdiction in this matter. That section provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
Defendants argue that the Administrative Procedure Act does not confer jurisdiction not otherwise existing and, in any event, this suit is in actuality one against the United States, which has not consented to be sued. Larson v. Domestic & Foreign Commerce Co., 337 U.S. 682, 688, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952); Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Whether or not the APA is jurisdiction-conferring has been an issue presented to several of the federal Circuits, and is a source of controversy among commentators.6
The first question to be confronted is whether section 10 of the APA, 5 U.S.C. § 701(a) (2) precludes judicial review of possible abuses of agency discretion as long as the agency is given general discretion in an area. The section provides:
This chapter applies . . . except to the extent that— . . . (2) agency action is committed to agency discretion by law.
On its face the language strongly limits review. The contrary argument, that the purpose of the APA as a whole would be largely defeated unless courts may scrutinize agency actions for abuse of discretion, is also very strong.7
This Court holds, after review of Zimmerman v. United States Government, 422 F.2d 326 (3d Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2200, 26 L.Ed.2d 565 (1970), that the law of this Circuit conforms to that of the Second and Fourth Circuits on this threshold issue. In that case, certain patentees, employees of the United States Government, asked a United States District Court to review a determination by the Commissioner of Patents that the Government was entitled to royalty-free licenses in patentee's inventions. In discussing the question whether any statute may "exclude all occasions of judicial intervention" in respect to actions of administrative officers, the court endorsed an observation of Professor Jaffee8— a leading proponent of the view that the APA does not, on its own terms, exclude judicial review of agency actions9 — to the effect that even a statute providing that an "administrative determination shall be `final'," "should not be interpreted to exclude judicial question of the agency's `jurisdiction'." 422 F.2d at 330. Though this language in Zimmerman is not specifically focused on the APA, 5 U.S.C. § 701(a)(2) certainly cannot be viewed as stronger than a statute providing that an administrative determination is "final." Thus, the clear implication of this language in Zimmerman is that the APA by itself does not preclude review of administrative determinations in areas under general agency discretion.10
The Zimmerman case makes it clear, however, that the APA is itself not jurisdiction-conferring. 422 F.2d at 330.11Zimmerman also states that any argument for the exercise of jurisdiction pursuant to the APA gives way to a defense of sovereign immunity:
The present action is against the United States and is a suit to which the Government has not consented. Congress has provided an exclusive and adequate remedy in the Court of Claims.
As the foregoing passage indicates, the court held in Zimmerman that the Court of Claims, under a statute specifically granting jurisdiction to it12 — and not the District Court pursuant to the APA — was the proper forum to which the Zimmerman plaintiffs could turn. It is thus clear under the doctrine of sovereign immunity. Larson v. Domestic & Foreign Commerce Co., supra; Dalehite v. United States, supra; Blackmar v. Guerre, supra, and under Zimmerman, that this Court has no jurisdiction over the FDA or the Department of Health, Education and Welfare in this action.13 In a practical sense such lack of jurisdiction is fatal to the plaintiffs' claim for monetary relief since it cannot...
To continue reading
Request your trial-
Goldhaber v. Foley
...to the agency's discretion by law, is reviewable." Mezines, Stein & Gruff, 5 Administrative Law § 44.01. See Ajay Nutrition Foods, Inc. v. FDA, 378 F.Supp. 210 (D.N. J.1974), aff'd, 513 F.2d 625 (3rd Cir. 1975). As noted above, we have found that the A.O. acted arbitrarily and capriciously ......
-
Doe v. United States Civil Serv. Com'n
...v. United States Dep't of Agriculture, 138 U.S.App.D.C. 291, 297, 427 F.2d 561, 567 (D.C.Cir.1970); Ajay Nutrition Foods, Inc. v. Food & Drug Adm., 378 F.Supp. 210, 213 (D.N.J.1974). As the Supreme Court has held, "only upon a showing of `clear and convincing evidence' of a contrary legisla......
-
Oahe Conservancy Sub-District v. Alexander
...v. United States, 455 F.2d 240 (9th Cir. 1972); Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971); Ajay Nutrition Foods, Inc. v. Food and Drug Administration, 378 F.Supp. 210 (D.N.J. 1974), aff'd, 513 F.2d 625 (3rd Cir. 1975). This standard of review is an extraordinarily limited one. A cour......
-
In-Possession, Cantrell Drug Co. v. United States (In re Cantrell Drug Co.), Case No. 4:17–bk–16012
...challenges to the FDA's statutory authority to issue press releases and other types of publicity. See Ajay Nutrition Foods, Inc. v. FDA , 378 F.Supp. 210, 217–18 (D.N.J. 1974) (ruling that a due process claim against FDA statements would require an allegation that the statements, even if tr......
-
Governance by the Backdoor: Administrative Law(lessness?) at the Fda
...opinion of the Secretary, imminent danger to health or gross deception of the consumer."); see also Ajay Nutrition Foods, inc. v. FDA, 378 F. Supp. 210, 216-19 (D.N.J. 1974) (refusing to enjoin adverse publicity issued by the FDA), affd mem., 513 F.2d 625 (3d Cir. 1975); Hoxsey Cancer Clini......