Beatty v. U.S. Food and Drug Admin.

• Decision Date: 24 September 1997
• Docket Number: Civ. A. No. CV297-24.
• Citation: 12 F.Supp.2d 1339
• Parties: Joel BEATTY, Plaintiff, v. UNITED STATES FOOD AND DRUG ADMINISTRATION and David A. Kessler, M.D., Commissioner of Food and Drug Administration, Defendants.
• Court: U.S. District Court — Southern District of Georgia

12 F.Supp.2d 1339

Joel BEATTY, Plaintiff, v. UNITED STATES FOOD AND DRUG ADMINISTRATION and David A. Kessler, M.D., Commissioner of Food and Drug Administration, Defendants.

Civ. A. No. CV297-24.

United States District Court, S.D. Georgia, Brunswick Division.

September 24, 1997.

COPYRIGHT MATERIAL OMITTED

Joel Beatty, Waverly, GA, pro se.

Delora L. Grantham, Assistant U.S. Attorney, Savannah, GA, Gerald C. Kell, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

ALAIMO, District Judge.

Plaintiff, Joel Beatty ("Beatty") brings this action seeking declaratory and injunctive relief for actions taken by Defendants, the United States Food and Drug Administration ("FDA") and David A. Kessler, M.D., Commissioner of Food and Drug Administration ("Kessler"), which were allegedly beyond their authority. Currently before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants allege that Beatty does not have standing to bring this action. For the following reasons, Defendants' Motion to Dismiss will be GRANTED.

FACTS

Beatty filed a complaint on February 28, 1997, alleging that the FDA acted beyond its authority when it asserted jurisdiction over tobacco and tobacco products. In August 1996, FDA issued regulations designed to limit access of children and adolescents to cigarettes.¹ Beatty claims that the FDA violated the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., the Administrative Procedures Act, 5 U.S.C. § 701 et seq., and the First and Fifth Amendments to the United States Constitution when it issued the regulations.

Beatty alleges that there will be limited access to cigarettes, as well as the development of a black market because of the regulations. Beatty also contends that the price of cigarettes will increase. Finally, Beatty contends that the regulations have caused, and will continue to cause, stigmatization and humiliation of smokers and their families.

DISCUSSION

I. Motion to Dismiss based on Rule 12(b)(1)

Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, to transfer the complaint to the Middle District of North Carolina.² Rule 12(b)(1) allows a court to dismiss a complaint when the court lacks jurisdiction over its subject matter. For purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59, 65 (1984); Fortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir.1993).

Attacks on subject matter jurisdiction come in the form of a "facial attack" or a "factual attack." Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1260-61 (11th Cir. 1997). Facial attacks on the complaint require a court "merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. at 1261. Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (internal quotation omitted).

Defendants contend that Plaintiff's complaint should be dismissed for lack of standing. When evaluating a motion to dismiss under Rule 12(b)(1) for lack of standing, it is the burden of the party claiming federal jurisdiction "clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343, 366 (1975). See also Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2137, 119 L.Ed.2d at 364 (1992). The issue of standing is properly resolved by reference to the allegations found in the complaint. Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994). The general allegations of the plaintiff are presumed to include "those specific facts that are necessary to support the claim." United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635, 642 (1995).

II. Standing

Article III of the United States Constitution provides that federal courts only shall have jurisdiction over "cases" and "controversies." U.S. Const. art. III, § 2. "[T]he purpose of the [case or controversy] requirement is readily apparent — to limit the federal courts to deciding issues in an adversary framework amenable to judicial resolution and to maintain separation of powers among the three branches of government." Miller v. Federal Communications Comm'n, 66 F.3d 1140, 1145 (11th Cir.1995), cert. denied, 517 U.S. 1155, 116 S.Ct. 1543, 134 L.Ed.2d 647 (1996) (citing Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947, 958 (1968)). Standing is a jurisdictional doctrine designed to ensure that there is always a case or controversy pending before the court. Standing "is of special importance in cases where a federal court is being asked to rule on the legality of an act of the executive branch." Region 8 Forest Service Timber Purchasers v. Alcock, 993 F.2d 800, 804 (11th Cir.1993), cert. denied, 510 U.S. 1040, 114 S.Ct. 683, 126 L.Ed.2d 651 (1994). Since the concept of standing is derived from the Constitution, there are specific constitutional requirements which must be met in order for a plaintiff to establish standing.

To satisfy the `case' or `controversy' requirement of Article III, which is the `irreducible constitutional minimum' of standing, a plaintiff must, generally speaking, demonstrate that he has suffered `injury in fact,' that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1160, 137 L.Ed.2d 281, 295 (1997) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136, 119 L.Ed.2d at 364; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-72, 102 S.Ct. 752, 758, 70 L.Ed.2d 700, 708 (1982)).

See also Hays, 515 U.S. at 741, 115 S.Ct. at 2435, 132 L.Ed.2d at 643; Cuban American Bar Ass'n. v. Christopher, 43 F.3d 1412, 1423 (11th Cir.1995), cert. denied, 516 U.S. 913, 116 S.Ct. 299, 133 L.Ed.2d 205; Alcock, 993 F.2d at 806.

In addition to the above constitutional requirements, a plaintiff also must meet the prudential requirements of standing. Bennett, 520 U.S.154, 117 S.Ct. at 1160, 137 L.Ed.2d at 295 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354 (1975)). These requirements are "judicially self-imposed limits of the exercise of federal jurisdiction." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556, 569 (1984). Three prudential considerations have developed. See Alcock, 993 F.2d at 806. First, a plaintiff must assert his own rights, not the rights or interests of a third person. Warth v. Seldin, 422 U.S. 490, 500-1, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343, 355-56 (1975). The second consideration is a prohibition on "generalized grievances." Hays, 515 U.S. at 741, 115 S.Ct. at 2435, 132 L.Ed.2d at 643; Lujan, 504 U.S. at 573-74, 112 S.Ct. at 2143, 119 L.Ed.2d at 372. The third requirement is that when a challenge is made to a statutory or regulatory provision, the plaintiff must raise a claim which is within the "zone of interests" protected by the statute. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 112 S.Ct. 1311, 1328, 117 L.Ed.2d 532, 556 (1992); Church of Scientology Flag Service Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1526 (11th Cir.1993), cert. denied, 513 U.S. 807, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994).

A. Constitutional Requirements

As stated above, in order to meet the constitutional requirements of standing, the plaintiff must show: (1) an injury in fact, (2) a causal connection between the injury and the actions of the defendant, and (3) that the injury will likely be redressed by a favorable decision. See Bennett, 520 U.S. ___, 117 S.Ct. at 1160, 137 L.Ed.2d at 295; Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136, 119 L.Ed.2d at 364; Valley Forge, 454 U.S. at 471-72, 102 S.Ct. at 758, 70 L.Ed.2d at 708.

An injury in fact is the "invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, 119 L.Ed.2d at 364 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675, 684 (1983) (internal quotation marks omitted)). So long as the plaintiff alleges that an actual and particularized injury has occurred, or will occur, he has met his burden to survive a motion to dismiss. The court will presume that the details of the injury exist. In Bennett, the plaintiffs alleged that there would be decreased water available for their businesses. 520 U.S. at ___ 117 S.Ct. at 1163, 137 L.Ed.2d at 298. The Court found that allegation was an injury in fact, even though the plaintiffs did not specifically allege how the water supply would be decreased. Id.

In this case, Beatty has not alleged an injury in fact. Broadly construing the pleadings, Beatty alleges the following injuries: limited access to cigarettes (Compl. ¶¶ 4, 70), increased cost of cigarettes, (Pl.'s Opp'n Mot. Dismiss at 2), possible development of a black market, (Compl. ¶¶ 4, 70), stigmatization and humiliation, (Compl. ¶ 69) and smoking bans. (Pl.'s Opp'n Mot. Dismiss at 2-3). None of these allegations meets the requirements to be considered an injury in fact.

The challenged regulations are designed to limit the access of young persons to cigarettes. There is no allegation that Beatty's access to cigarettes...