Memorandum denying Mason's request for oral
argument
DISMISSAL OF APPEAL
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
|
PAUL W. MASON,
Plaintiff-Appellant,
v.
TOMMY G. THOMPSON,1 Secretary of
Health and Human Services; BERNARD
A. SCHWETZ, D.V.M., Ph.D.,2 Acting
Principal Deputy Commissioner of the U.S.
Food and Drug Administration,
|
No. 99-16746
D.C. No. CV-97-20686-JF/PVT
MEMORANDUM3
|
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Submitted March 12, 20014
_____________________________
1 We sua sponte substitute Tommy G. Thompson for
Donna Shalala. See Fed. R. App. P. 43(c)(2).
2 We sua sponte substitute Bernard A. Schwetz for
Jane E. Henney. See Fed. R. App. P. 43(c)(2).
3 This disposition is not appropriate for
publication and may not be cited to or by the courts of this
circuit except as may be provided by 9th Cir. R. 36-3.
4 Because the panel unanimously finds this case
suitable for decision without oral argument, we deny Mason's
request for oral argument. See Fed. R. App. P.
34(a)(2).
Before: WALLACE, SILVERMAN, and W. FLETCHER, Circuit
Judges.
Paul W. Mason appeals pro se the district court's judgment for
defendants in his action alleging that the Food and Drug
Administration's ("FDA") failure to combat dietary magnesium
deficiency results in up to 150,000 deaths per year and minimal
sales of Mason's magnesium-rich spring water. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo
both summary judgment and dismissal for failure to state a claim,
see Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.
1993) (per curiam), and we affirm.
The district court properly granted summary judgment to
defendants on Mason's fifth claim for relief because the FDA
reasonably interpreted "amount customarily consumed" to mean
amount "consumed per eating occasion." See
Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517,
1525 (9th Cir. 1995).
The district court properly dismissed Mason's remaining claims
for relief because FDA decisions not to take enforcement action
are not subject to judicial review. See Hackler v.
Chaney, 470 U.S. 821, 831-32 (1985).
The record contains no evidence of bias on the part of the
district court judge. See 28 U.S.C. §§ 144,
455; United States v. Gordon, 974 F. 2d 1110, 1114 (9th Cir.
1992).
Mason's remaining contentions lack merit.
AFFIRMED.
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