UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PHYSICIANS COMMITTEE FOR )
RESPONSIBLE MEDICINE, )
)
Plaintiff, )
) Civil Case No. 11-38 (RJL)
v. )
)
TOM VILSACK, in his official )
capacity, ) F I L E D
)
and ) nEc 1 1 2011
) . .
KATHLEEN SEBELH)S, in her ofhcial ) é§'§§‘§; §‘<;?11.‘§`§1';?§§ §?'€;'?.’.ll§l,la
capacity, )
)
Defendants. )
-{-'\_
MEMORANDUM OPINION

(December |_'L_, 2011) [#10]

Plaintiff Physicians Committee for Responsible Medicine ("plaintiff") brought an
action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b), seeking
injunctive relief against defendants Tom Vilsack, Secretary of the United States
Department of Agriculture ("USDA") and Kathleen Sebelius, Secretary of the
Department of Health and Human Services ("DHHS") (collectively, "defendants"),
which would require defendants (l) to provide a response to a petition that plaintiff had
previously submitted and (2) to withdraw those portions of defendants’ most recent
dietary guidelines that are vague or ambiguous. In its petition, plaintiff requested that
defendants withdraw the current "l\/IyPyramid" food diagram and dietary guidelines, and

adopt plaintiffs proposed "Power Plate” food diagram and dietary guidelines After

careful consideration of the law and pleadings, defendants’ Motion to Dismiss is
GRANTED.
BACKGROUND

Plaintiff is a national non-profit public health organization that advocates for
preventative medicine through proper nutrition. Amended Complaint ("Compl.") ll 3.
Plaintiff represents more than l0,000 physicians and 100,000 other medical professions,
scientists, and lay persons. ]d.

ln 20()5, USDA and DHHS promulgated the most recent food diagram:
l\/lyPyramid. Id. ll 5. On March l l, 201(), plaintiff submitted to defendants a petition
requesting they exercise their joint authority under the National Nutrition Monitoring &
Related Research Act ("Nutrition Act"), 7 U.S.C. § 5341, to withdraw the current
MyPyramid food diagram and associated dietary guidelines, and adopt plaintiffs
proposed Power Plate food diagram and dietary guidelines. Compl. ll 6. Neither agency
responded to plaintiffs request. Ia’. ll 9.

On January 3l, 2()11, defendants jointly issued new dietary guidelines~the
Dz`etary Guz`delinesfor Amerl`cans, 2010 ("Dietary Guicz'elz`nes"). Id. ll l l. Defendants
did not, however, issue a new food diagram. Id. In part. the Dz`elary Guicz'elz'nes
acknowledges the value of plant-based diets, which plaintiff alleges properly reflects the
preponderance of current scientific and medical knowledge. Ia’. Plaintiff, however, also
alleges that other portions of the Dz`etary Guidelines do not reflect the preponderance of

current scientific and medical knowledge. Id. ll 12. Sp'ecifically, plaintiff alleges that

while the guidelines specify foods to eat more frequently (e.g. fruits and vegetables), they
do not identify foods to eat less often (e.g. meat and cheese). Icz'. ll 13.

On January 5, 2011, plaintiff filed this lawsuit. See Docket Entry l. On February
15, 2011, plaintiff filed an amended complaint. See Docket Entry 9. On March 21, 2011,
defendants filed a motion to dismiss. See Docket Entry l0.

STANDARD OF REVIEW

A court may dismiss a comp1aint, or any portion of it, that does not fall within the
court’s subject-matter jurisdiction. Fed. R. Civ. P. l2(b)(l). Where a motion to dismiss
under Rule 12(b)(1) makes a facial attack on the complaint, the reviewing court "must
accept as true all material allegations on the complaint, and must construe the complaint
in favor of the complaining party." Ora’ v. Distrz'ct of Columbz'a, 587 F.3d ll36, 1140
(D.C. Circuit 2009) (internal citation and quotation marks omitted). "Under Rule
l2(b)(l), the plaintiff bears the burden of establishing that the court has jurisdiction."
Grand Lodge of Fraterrzal Ora’er of Polz`ce v. Ashcrofl, 185 F. Supp. 2d 9, 13 (D.D.C.
2001).

A court may also dismiss a complaint_, or any portion of it, for failure to state a
claim upon which relief may be granted. Fed. R. Civ. P. l2(b)(6). A court considering a
motion to dismiss, however, may only consider "the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice." E.E.O.C. v. St. Francz`s Xavz`er Parochz'al Sch., 117 F.3d
621, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a complaint must "plead [ ]

factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged." Ashcroft v. Iqbal, --.-U.S.---, 129 S. Ct. 1937, 1949
(2009). In evaluating a Rule l2(b)(6) motion, the court construes the complaint "in favor
of the plaintiff, who must be granted the benefit of all inferences that can be derived from
the facts alleged." Schuler v. United Stales, 617 F.2d 605, 608 (D.C. Cir. 1979) (intemal
quotation marks omitted). However, factual allegations, even though assumed to be true,
must still "be enough to raise a right to relief above the speculative level." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the court "need not accept inferences
drawn by plaintiff[] if such inferences are unsupported by the facts set out in the
complaint. Nor must the court accept legal conclusions cast in the form of factual
allegations." Kowal v. MC1 Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
LEGAL ANALYSIS
1. Subject-Matz‘er Jurz'sdz`ction
Defendants contend plaintiffs claims-(l) failure to timely respond to plaintiffs

petition, in violation of 5 U.S.C. § 555(b); and (2) arbitrary and capricious agency action
because some portions of the Dietary Guz'delz`nes do not reflect the preponderance of
current scientific and medical knowledge_should be dismissed because plaintiff has
failed to demonstrate the necessary standing under Article 111 of the U.S. Constitution and
the APA to establish that this Court has subject-matter jurisdiction over the claims.

Defs.’ Mem. in Supp. of Mot. to Dismiss ("Defs.’ Mot.”), Mar. 21, 2011 at 10. "Because
Article 111 limits the constitutional role of the federal judiciary to resolving cases and
controversies, a showing of standing is an essential and unchanging predicate to any

exercise our jurisdiction." Fla. Audubon S0c y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir.

4

1996) (internal citation and quotation marks omitted). Standing, therefore, "must be
resolved as a threshold matter." Raytheon C0. v. Ashborn Agencies, Lta’., 372 F.3d 451,
453 (D.C. Cir. 2004). To satisfy the "irreducible constitutional minimum of standing," a
plaintiff must demonstrate that it has suffered a concrete and particularized injury that is:
"l) actual or imminent, 2) caused by, or fairly traceable to, an act that [plaintiff]
challenges in the instant litigation, and 3) redressable by the court." Bentsen, 94 F.3d at
663 (internal citation and quotation marks omitted). There is no standing where "a court
would have to accept a number of very speculative inferences and assumptions," as
courts "are powerless to confer standing when the casual link is too tenuous."'
Winpisz'nger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980).

With respect to the first claim, plaintiff has failed to demonstrate in its complaint
that it, or its members, have suffered a concrete and particularized injury that is actual or
imminent. lndeed, any injury alleged is based on conjecture and speculation, which this
Court is prohibited from considering. See z`a’. at 139. 1n its opposition memorandum,
plaintiff, citing to FEC v. Atkz'ns, 524 U.S. 1 1 (1998) for support, contends that it has

suffered an injury through defendants’ failure to provide information as required by the

Nutrition Act. Pl.’s Opp., Mar. 30, 2011, at 3. Atkz'ns, however, is easily distinguishable.

1 Additionally, associations have standing to pursue litigation "on behalf of its members
when its members would have standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the claim asserted nor the relief
requested requires members’ participation in the lawsuit." Consumer Fea’ ’n of Am. V.
Fea’. Commc’n Comm ’n, 348 F.3d 1009, 1011 (D.C. Cir. 2003) (internal quotation marks
omitted). Further, when suing under the APA, the plaintiff must show that the alleged
injury falls within the zone of interests "sought to be protected by the statutory provision
whose violation forms the legal basis for his complaint." Lujan v. Nat’l Wz'ldy”zre Fea’ ’n,
497 U.S. 871, 883 (1990).

ln Atkz`ns, a group of voters were denied all requested information, which was required to
be publicly disclosed under the Federal Election Campaign Act. 524 U.S. at 20, Here,
however, defendants have not failed to provide information that must be publicly
disclosed. The Nutrition Act requires defendants to publish a report of nutritional and
dietary information and guidelines every five years. See 7 U.S.C. § 5341(a)(1).
Defendants complied with the Act’s mandate by publishing such a report. See Compl. ll
ll. Therefore, with respect to the first claim, plaintiff has failed to demonstrate any
injury-in-fact.

Similarly, plaintiff has failed to demonstrate an injury-in-fact with respect to its
second claim. Plaintiff, which recommends a plant-based diet, contends that defendants’
failure to reflect the preponderance of current scientific and medical knowledge by
promoting meat and dairy products "interfere[s] with the efforts of [Plaintiff] . . . to
improve the health and well-being of Americans and combat the epidemics of obesity,
cardiovascular disease, diabetes, and other conditions related to food choices." Compl. ll
36. Plaintiff fails to provide any support, however, for this alleged injury, which is based
in whole on conjecture and speculation. lndeed, plaintiffs own founder concedes that its
staff is "skilled at ejj’ectivelj) conveying information regarding health and diet to the
public." Decl. ofNeal D. Bamard, M.D. in Supp. ofPls.’ Opp’n, Mar. 30, 201l, Dkt.l2-
l, ll 3 (emphasis added).

Therefore, because plaintiff has failed to demonstrate standing, defendants’

Motion to Dismiss must be GRANTED.

II. Fczz`lure to State a Claz`m

With respect to its first claim, plaintiff contends that defendants have failed to
provide a timely response to its petition, as required under 5 U.S.C. § 555(b). Section
555(b) provides: "With due regard for the convenience and necessity of the parties or
their representatives and within a reasonable time. each agency shall proceed to conclude
a matter presented to it." On March l1, 20l0, plaintiff submitted to defendants its
petition requesting they withdraw and replace the then-existing dietary guidelines and
food pyramid. Compl. ll 6. On January 31, 2011, defendants issued new dietary
guidelines, which, in part, were not objectionable to plaintiff. Ia’. llll 10~12. Defendants
contend that by publishing the Dietary Guz`delz'nes in final form, they "did effectively
‘conclude the matter’ as presented by plaintiff." Defs.’ Reply, Apr. 13, 2011 at 13.
Because plaintiff has failed to allege facts sufficient to show how defendants failed "to
conclude a matter presented to it," plaintiff has failed to state a claim under Section
555(b).

With respect to its second claim (that the Dietary Guidelines are arbitrary and
capricious), plaintiff contends that the Dz`ezary Guidelz`nes is entitled to judicial review
under 5 U.S.C. §§ 702, 704. Section 702 provides that 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." Section 704 provides
that "final agency action for which there is no other adequate remedy in a court [is]
subject to judicial review." Under the APA, "‘agency action’ includes the whole or a part

of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or

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failure to act." 5 U.S.C. § 551(13). In turn, "‘rule’ means the whole or a part of an
agency statement of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the organization
procedure or practice requirements of an agency."’ Ia’. § 551(4) (emphasis added).
Plaintiff contends that the latter category includes the Dietary Guz'delz`nes. Pl.’s Opp’n at
10. The Dz'etary Guidelz'nes, however, is not an agency statement describing the USDA
or DHHS organizations or the agencies’ procedures or practice requirements. lt is, in
sum, a report containing "nutritional and dietary information and guidelines for the
general public." 7 U.S.C. § 534l(a)(l). As the Nutrition Act makes clear, such dietary
guidance "does not include any rule or regulation issued by a Federal agency," and thus,
does not constitute an "agency action." Ia’. § 5341(b)(3). Therefore, because plaintiff has
not established that the Dz`etary Guz'delines is actually subject to judicial review under the
APA, it has failed to state a claim upon which relief can be granted.
CONCLUSION
Thus, for all of the foregoing reasons, Defendants’ Motion to Dismiss is

GRANTED. An appropriate Order will accompany this memorandum opinion.

A

warsaw

mCHARDQg)oN
United States District Judge

