                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 22 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CENTER FOR FOOD SAFETY;                          No.   15-17510
CENTER FOR BIOLOGICAL
DIVERSITY; SIERRA CLUB; HUMANE                   D.C. Nos.    4:14-cv-04932-YGR
SOCIETY OF THE UNITED STATES;                                 4:14-cv-04933-YGR
ANIMAL LEGAL DEFENSE FUND;
UNITED FARM WORKERS OF
AMERICA,                                         MEMORANDUM*

              Plaintiffs-Appellants,

 v.

MARGARET A. HAMBURG,
Commissioner, United States Food and
Drug Administration; U.S. FOOD &
DRUG ADMINISTRATION,

              Defendants-Appellees,

ELANCO US INC.,

              Intervenor-Defendant-
              Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted April 17, 2017
                             San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN,** District
Judge.

      Appellant Center for Food Safety (CFS) appeals the district court’s dismissal

of its complaint alleging that the Food and Drug Administration (FDA) approval of

the use of animal drugs violated the National Environmental Policy Act. CFS

contends that the district court erred in dismissing its complaint based on CFS’s

failure to satisfy the Administrative Procedure Act’s exhaustion requirements.

      The district court properly held that, under the facts of this case, the FDA

should be afforded an opportunity to apply its expertise to assess CFS’s claims in

the first instance “prior to possible judicial intervention.” Ctr. for Food Safety v.

Hamburg, 142 F. Supp. 3d 898, 907 (N.D. Cal. 2015). Requiring CFS to file a

citizen petition “prevents[s] premature interference with agency processes so that

the agency may function efficiently and so that it may have an opportunity to

correct its own errors, to afford the parties and the courts the benefit of its

experience and expertise, and to compile a record which is adequate for judicial




      **
             The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
                                            2
review.” Tamosaitis v. URS Inc., 781 F.3d 468, 478 (9th Cir. 2015), as amended

(citation omitted).

         The district court cogently proposed to stay the proceedings to allow CFS to

file a citizen petition. See Ctr. for Food Safety, 142 F. Supp. 3d at 910. However,

the parties requested that the district court enter a final order dismissing CFS’s

complaint, likely in order to ensure appellate review. The district court’s

inclination to stay the action was spot on. See 21 C.F.R. § 10.25(a); see also 21

C.F.R. § 10.45(b) (providing that “[a] request that the Commissioner take or

refrain from taking any form of administrative action must first be the subject of a

final administrative decision based on a petition submitted under § 10.25(a) . . .

before any legal action is filed in a court complaining of the action or failure to

act”).

         Accordingly, the district court is directed to stay further proceedings to

allow CFS to comply with the FDA’s citizen petition requirement. The district

court retains authority to “compel agency action unlawfully withheld or

unreasonably delayed” pursuant to 5 U.S.C. § 706(1) following completion of the

administrative proceedings.

         VACATED and REMANDED with directions.




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