Farm-to-Consumer Legal Defense Fund et al v. United States Department of Health and Human Services et al
Filing
84
MEMORANDUM OPINION AND ORDER denying 81 Motion to Amend Judgment. See text of order. Signed by Judge Mark W Bennett on 5/1/12. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
FARM-TO-CONSUMER LEGAL
DEFENSE FUND, LAURIE
DONNELLY, JENNIFER ALLEN, DR.
JOSEPH HECKMAN, DANE MILLER,
CYNTHEA LEE ROSE, ERIC
WAGONER, ANNE COOPER, and
MICHAEL BUCK,
No. C 10-4018-MWB
Plaintiffs,
vs.
KATHLEEN SEBELIUS, in her official
capacity as Secretary, United States
Department of Health and Human
Services, UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, MARGARET
HAMBURG, in her official capacity as
Commissioner, United States Food and
Drug Administration, and UNITED
STATES FOOD AND DRUG
ADMINISTRATION,
MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFFS’
MOTION TO AMEND JUDGMENT
Defendants.
___________________________
This matter comes before me on the April 5, 2012, Motion To Amend Judgment
(docket no. 81) by the “agent” plaintiff, Eric Wagoner, and the “producer” plaintiff,
Michael Buck. The moving plaintiffs asset that I erred when I dismissed their claims
for lack of standing in my March 30, 2012, Memorandum Opinion And Order
Regarding Defendants’ Renewed Motion To Dismiss And, In The Alternative, Motion
For Summary Judgment And Plaintiffs’ Motion For Summary Judgment (Ruling)
(docket no. 79) and the Judgment (docket no. 80) pursuant to that Ruling. The FDA
filed a Resistance (docket no. 82) on April 20, 2012, and the moving plaintiffs filed a
Reply (docket no. 83) on April 26, 2012. I do not find any “manifest errors of law or
fact” that warrant relief from the Judgment. See Hagerman v. Yukon Energy Corp.,
839 F.2d 407, 413-14 (8th Cir. 1988); see also FED. R. CIV. P. 59(e).
First, the moving plaintiffs’ contentions that I relied primarily on the FDA’s
answers to the certified questions and that the only new facts in the record are the
answers to the certified questions are both wrong. Rather, I noted, first, that the only
plaintiff who had even alleged that the FDA had applied or sought to apply the
challenged regulations to him was plaintiff Wagoner. I also concluded that Wagoner’s
allegations that the FDA, rather than the GDA, enforced the embargo and destruction
of his raw milk did not generate reasonable inferences, because they are conclusory and
speculative. See Ruling at 2-3. That conclusion was based on the parties’ statements of
fact, and accompanying appendices, which showed that Wagoner had nothing but
speculation or suspicion to support his assertion that the FDA ordered the destruction of
his raw milk. See id. at 3. I stand by that assessment of the record. Thus, none of the
plaintiffs, including Wagoner or Buck, has shown any “injury in fact” to support their
standing. See id. at 2 (citing Gray v. City of Valley Park, Mo., 567 F.3d 976, 984 (8th
Cir. 2009)).
The moving plaintiffs also assert that I erred in concluding that they had not
demonstrated a “threat of injury in fact.” See id. (again citing Gray, 567 F.3d at 984,
for the “threat of injury in fact” alternative to show standing). In so holding, I did
rely, in part, on the FDA’s answers to the certified questions as demonstrating that it
was now abundantly clear that the FDA has not and does not intend to enforce the
regulations against any of the plaintiffs, but that conclusion was ultimately based on the
entire record, not just on the FDA’s answers to the certified questions or recent public
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statements.
The mere existence of a regulation that ostensibly would prohibit the
plaintiffs’ conduct is not enough to establish a real threat of enforcement, where the
regulations have been uniformly and without exception unenforced against the conduct
in question, such that the regulations have fallen into desuetude as to such conduct. Cf.
St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 486 (8th Cir. 2006).
Certainly, none of the plaintiffs can claim that the mere existence of the regulations,
promulgated in final form in 1973 and 1987, respectively, has chilled their conduct,
notwithstanding the lack of any actual enforcement action by the FDA. Cf. id. I do not
believe that I erred, manifestly or otherwise, in concluding that the plaintiffs’
allegations of a “threat of injury in fact” were too conjectural, hypothetical, and
speculative to establish their standing. See Gray, 567 F.3d at 984.
Although the moving plaintiffs contend that I made contrary findings—that they
do have standing—in my original ruling on the FDA’s motion to dismiss for lack of
standing (docket no. 27), my earlier conclusions about standing were explicitly
identified as “preliminary.”
THEREFORE, the April 5, 2012, Motion To Amend Judgment (docket no. 81)
by the “agent” plaintiff, Eric Wagoner, and the “producer” plaintiff, Michael Buck, is
denied.
IT IS SO ORDERED.
DATED this 1st day of May, 2012.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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