Durk Pearson Sandy Shaw, American Preventive Medical Association Citizens for Health National Health Federation v. Food and Drug Administration Secretary of Health & Human Services United States of America

65 F.3d 175, 1995 U.S. App. LEXIS 30711

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 1995
• Docket: 94-70091
• Status: Unpublished

Opinion

65 F.3d 175

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Durk PEARSON; Sandy Shaw, American Preventive Medical
Association; Citizens for Health; National
Health Federation, Petitioners,
v.
FOOD AND DRUG ADMINISTRATION; Secretary of Health & Human
Services; United States of America, Respondents.

Nos. 94-70091, 94-70092, 94-70093.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 15, 1995.*
Decided Aug. 21, 1995.

Before: FLETCHER, POOLE and O'SCANNLAIN, Circuit Judges.

ORDER

Petitioners challenge three regulations adopted by the United States Food and Drug Administration that govern the content of health claims on labels for dietary supplements. 59 Fed.Reg. 433 (1994) (codified at 21 C.F.R. Sec. 101); 59 Fed.Reg. 436 (1994) (codified at 21 C.F.R. Sec. 101); 59 Fed.Reg. 395 (1994) (codified at 21 C.F.R. Secs. 20, 101). The regulations were adopted pursuant to the Nutrition Labeling and Education Act of 1990, ("NLEA"), Pub.L. No. 101-535, 104 Stat. 2353 (Supp. V 1993) (amending 21 U.S.C. Sec. 301 et seq. (1988)).

We lack jurisdiction to review regulations enacted pursuant to section 403(r) of the NLEA. See Mineral Resources Int'l v. Shalala, 53 F.3d 305 (10th Cir.1995); Wellife Products v. Shalala, 52 F.2d 357 (D.C.Cir.1995). This case is transferred to the District Court for the District of Columbia, pursuant to 28 U.S.C. Sec. 1631, which states:

Whenever a civil action is filed in a court as defined in section 610 or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed....

28 U.S.C. Sec. 1631. Because the petition is far from frivolous and the filing in the wrong court appears to have been made in good faith, we find it in the interests of justice to transfer it to the District Court for the District of Columbia, where it could have been brought at the time that it was filed.

SO ORDERED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4