United States District Court, D. Maryland
RICHARD D. BURK Petitioner
FOOD AND DRUG ADMINISTRATION Respondent
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
response to the above-captioned Petition for Writ of
Mandamus, Respondent filed a Motion to Dismiss the matter as
moot because the relief sought by Petitioner has been
provided. ECF 10, see also ECF 10-1 (Response to
Citizen Petition). On April 15, 2019, this Court provided
Petitioner Richard D. Burk with notice that a Motion to
Dismiss had been filed and that his failure to oppose it
would result in dismissal of the petition. ECF 13. In
response to that notice Burk filed a Motion to Stay for 90
Days and Request for Extension of Time in which he suggests
that the parties negotiate a different result for his Citizen
Petition or in the alternative he seeks a 30 day-extension to
file a Reply to the Motion to Dismiss. ECF 14. For the
reasons stated herein, Respondent's Motion to Dismiss
shall be granted and Burk's motion denied.
sole basis of this Court's jurisdiction over Burk's
petition is found in 28 U.S.C. § 1361 which confers
original jurisdiction to the federal district courts in any
action in the nature of mandamus to compel an officer or
employee of the United States, or one of its agencies, to
perform a duty owed to a petitioner. In order to meet the
requirements for mandamus relief, a petitioner must show:
that he has the clear legal right to the relief sought; that
the respondent has a clear legal duty to do the particular
act requested; and that no other adequate remedy is
available. See In re First Fed. Savings and Loan
Ass'n of Durham, 860 F.2d 135, 138 (4th Cir. 1988);
Asare v. Ferro, 999 F.Supp. 657, 659 (D. Md. 1998).
The failure to show any of these prerequisites defeats a
district court's jurisdiction under 28 U.S.C. §
1361. See Nat'l Ass'n of Gov't Emps. v. Fed.
Labor Relations Authority, 830 F.Supp. 889, 898 (E.D.
Va. 1993). Even if the three prerequisite elements are
satisfied, the mandamus remedy lies within the discretion of
the trial court. See Or. Nat. Resource Council v.
Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995). A
ministerial act is one in which the law prescribes and
defines a duty to be performed with such precision as to
leave nothing to the exercise of discretion or judgment.
See Neal v. Regan, 587 F.Supp. 1558, 1562 (N.D. Ind.
petition, Burk sought "to compel the Food and Drug
Administration (FDA) to carry out their ministerial duties in
the Administrative Proceedings of Burk's 2014 Citizen
Petition requesting the FDA to place 'Warning Labels'
on the Baking Soda Drug Product to deter United States
Citizens ... from using the Baking Soda Drug to manufacture
and distribute the illicit drug known as 'Crack
Cocaine.'" ECF 1 at p. 1. The ministerial duty owed
to Burk was to provide a response to his Citizen Petition.
The response to Burk's Citizen Petition, providing a
lengthy explanation of why the petition was denied, was
issued on April 12, 2019. ECF 10-1. Thus, the relief sought
by Burk has been provided. As noted, this Court's
jurisdiction lies within the confines of 28 U.S.C. §
1361 and, absent a ministerial act prescribed by law and
defining a duty to be performed by Respondent which has not
yet been performed, this Court no longer has jurisdiction
over the matter.
where the relief sought by a party has been provided there is
no longer a case or controversy involved, depriving this
Court of its jurisdiction to intervene in a matter.
See U.S. Const, art. III, § 2, cl. 1. A claim
is justiciable if there is "a real, substantial
controversy between parties having adverse legal interests, a
dispute definite and concrete, not hypothetical or
abstract." Babbitt v. United Farm Workers Nat'l
Union, 442 U.S. 289, 298-99 (1979).
Motion for a 90 Day Stay, Burk requests a stay "to allow
the parties of interest  to discuss and/or negotiate
alternative solutions to the quest in acquiring deterrent(s)
against the manufacturing of crack cocaine with Sodium
Bicarbonate (AKA Baking Soda)." ECF 14 at p. 1. There is
no basis in law for this Court to facilitate such a request
in a case where the entire matter is now moot. It is clear
that Burk has received the relief sought by his Petition for
Writ of Mandamus. His desire to negotiate a different result
regarding his Citizen's Petition simply inserts a
hypothetical, abstract interest held by Burk that does not
serve to provide a live case or controversy essential to
invoke this Court's jurisdiction. His Motion for 90 Day
Stay shall therefore be denied.
objection that a federal court lacks subject-matter
jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may
be raised by a party, or by a court on its own initiative, at
any stage in the litigation, even after trial and the entry
of judgment. Rule 12(h)(3) instructs: 'Whenever it
appears by suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter, the court
shall dismiss the action.'" Arbaugh v. Y&H
Corp.,546 U.S. 500, 506-07 (2006) citing Kontrick
v. Ryan,540 U.S. 443, 455 (2004). This Court no longer
has subject-matter jurisdiction over this matter, obviating