Wednesday, March 21, 2012

Supreme Court Allows Redress Against Agency Intimidation

A Note to Health & Food Freedom & Justice advocates:

Today witnessed another Supreme Court unanimous victory for the individual's right to petition for redress when Federal agencies merely threaten enforcement action. The application of this case to various matters regarding health & food freedom & justice issues is very significant.

Standing to sue has been the key issue in cases such as the CoMeD mercury cases, the Ear Candlers Case and the "stop the shot" vax mandates cases.

Here is what the high Court said earlier today:

"The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal District Court, contending that the compliance order was “arbitrary[and] capricious” under the Administrative Procedure Act (APA), 5U. S. C. §706(2)(A), and that it deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre-enforcement judicial review of compliance orders and that such preclusion did not violate due process.

"Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order. Pp. 4–10. ...

"The APA creates a “presumption favoring judicial review of administrative action.” Block v. Community Nutrition Institute, 467 U. S. 340, 349.

In this case, the circumstances are similar to what happened to the Ear Candlers, who all received "cease and desist" orders from FDA declaring that ear candles were "unapproved medical devices..." that had "no medical use" and could therefore never be approved. The District Court denied the Ear Candlers relief because the FDA only threatened enforcement but did not actually enforce (this, despite the FDA's own web site claiming it was enforcing and had forced companies to stop selling).

Here is what happened to the Sacketts:

"The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but thatrequest was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment.

"The District Court dismissed the claims for want of subject matter jurisdiction, and the United States Court of Appeals for the Ninth Circuit affirmed, 622 F. 3d 1139(2010). It concluded that the Act “preclude[s] pre-enforcement judicial review of compliance orders,” id., at 1144, and that such preclusion does not violate the Fifth Amendment’s due process guarantee, id., at 1147. ...

"We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."

In recent years the FDA has responded to strong citizen "push back" by backing off some of its most extreme assertions of power. For example, when Natural Solutions Foundation led over a half million people to object to the FDA 'CAM' Guidance in 2007, that draconian regulation was never finalized. When we pushed hard against the Swine Flu Vax, the mandates collapsed. When we pushed against the recent New Dietary Ingredient Guidance, the comment period was extended. When the Raw Milk Freedom Riders publicly disobeyed the FDA interstate raw milk prohibition, the FDA backed off its claimed power to stop such shipments when for personal use, at least.

BUT, but, but... while backing off, the agency continues to act as though it had adopted these onerous rules. The Ear Candler Case shows that they are enforcing their illegal 'CAM' category (never adopted by Congress) anyway. The banning of a certain form of B-6 shows how they intend to enforce the NDI regulation.

Through intimidation and innuendo...

But now, with the Sackett case, it is clear the potential victims of agency-less-than-final-enforcement can have their day in court; they have standing to sue, to seek redress of grievances, when threatened by the consequences of enforcement even when the agency plays sly and tries to intimidate instead of directly enforce.

Ralph Fucetola JD
Natural Solutions Foundation

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