United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
plaintiff Jeffrey Schirripa claims to have developed a
dietary supplement containing "neuroprotecting
antioxidants" derived from cannabis. Compl., ECF No. 1,
¶ 9. The product, which can be administered through a
rectal suppository, purports to "protect neurological
health." Pl.'s Mot. Judicial Notice Ex. D, ECF No.
21 (sealed), at 11.
September 2015, Schirripa filed a citizen's petition,
under 21 CFR § 10.30, urging the Food and Drug
Administration ("FDA") to "protect and
utilize" U.S. Patent No. 6630507-a patent held by the
Department of Health and Human Services ("HHS")
covering potential therapeutic uses of non-psychoactive
"cannabinoids." Def's Mem. Supp. Mot. Dismiss
("MTD") Ex. 1, ECF No. 14-1 (sealed), at 3.
Schirripa explained that the requested action was necessary
to enable private industry to develop treatments for "a
long list of devastating (and previously untreatable)
neurological diseases and injuries." Id. at 7.
Simultaneously, Schirripa filed a Premarket Notification of
New Dietary Ingredient, under 21 CFR § 190.6, advising
the FDA of his intention to manufacture his supposedly
breakthrough supplement. Compl. ¶ 9.
waiting over a year for a response to his citizen's
petition and a related settlement proposal that would have
given him rights under the patent, see Def.'s MTD Ex. 2,
ECF No. 14-2 (sealed), at 4, Schirripa filed this lawsuit in
May 2017. The complaint alleges that the agency's failure
to respond to his petition within 180 days violated the
Administrative Procedures Act ("APA"), 5 U.S.C.
§ 500 et seq. Compl. ¶¶ 1-2. The FDA
responded to the petition two months later. See MTD
Ex. 3, ECF No. 14-3 (sealed). As relevant here, the agency
ruled that it lacked authority to undertake the actions
Schirripa sought and declined his settlement proposal. Li at
2-7. In September 2017, Schirripa filed a petition for
reconsideration, which has not been acted upon. See MTD Ex.
4, ECF No. 14-4 (sealed), at 4; MTD Ex. 5, ECF No. 14-5
(sealed), at 2. Schirripa included a sample of his supplement
with the reconsideration petition as a "gift" to
the FDA Commissioner. MTD Ex. 4 at 6; Pl.'s Mot. Leave to
File First Am. Compl Ex. 1 ("Prop. First Am.
Compl."), ECF No. 32-1 (sealed), ¶ 13.
answered Schirripa's petition, the FDA moved to dismiss
his complaint as moot under Federal Rule of Civil Procedure
12(b)(1). See MTD, ECF No. 12, at 7-8. A case becomes moot
when "the court can provide no effective remedy because
a party has already obtained all the relief that it has
sought." Conservation Force, Inc. v. Jewell,
733 F.3d 1200, 1204 (D.C. Cir. 2013) (internal quotations,
citation, and alteration omitted). Schirripa concedes that
"the Original Complaint became moot when Defendant
responded to Plaintiff s Citizen Petition on July 27,
2017." Pl.'s Opp'n MTD, ECF No. 19, at 1. And
while he also seeks an order declaring that the FDA
unreasonably delayed in responding to his petition, see
Compl. at 4, a request for declaratory relief cannot
resuscitate an otherwise moot claim. See PETA v. U.S.
Fish & Wildlife Serv., 59 F.Supp.3d 91, 96 (D.D.C.
2014) ("[M]ootness of claim against a specific agency
action also moots claims for declaratory relief over those
specific agency actions."). The Court will, accordingly,
grant the FDA's motion to dismiss Schirripa's
story does not end there, however. Realizing that the
FDA's response to his citizen petition rendered his
complaint moot, Schirippa sought leave to file a supplemental
complaint under Federal Rule of Civil Procedure 15(d).
See Pl.'s Mot. Leave File Suppl. Compl. Ex. 1
("Prop. Suppl. Compl."), ECF No. 7-1. That rule
permits a plaintiff, with the Court's permission,
"to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the
date of the pleading to be supplemented." Fed.R.Civ.P.
15(d). While a motion to supplement is generally "freely
granted," BEG Invs., LLC v. Alberti, 85
F.Supp.3d 13, 23-24 (D.D.C. 2015), it should be denied
"as futile if the proposed claim would not survive a
motion to dismiss," Id. at 24 (quoting
Hettinga v. United States, 677 F.3d 471, 480 (D.C.
Cir. 2012)). In analyzing whether a proposed supplement would
be futile, the Court assesses the proposed change under the
same standard applied to a Rule 12(b)(6) motion to dismiss.
proposed supplemental complaint seeks to add a claim stemming
from an alleged "threat of prosecution" by the
Department of Justice several years ago. Prop. Suppl. Compl.
¶ 6-7. Schirippa explains that he previously sent a
sample of his nutritional supplement to the Attorney General
of the United States. Id. ¶ 5. In subsequent
litigation in the Court of Federal Claims, a Department of
Justice attorney observed in a footnote to a reply brief that
the mailing "could be construed as a violation of 21
U.S.C. Â§ 844a [penalties for simple possession of controlled
substances] and/or 18 U.S.C. Â§ 1718 [mailing of injurious
articles]." Id. ¶ 6; see also
Pl.'s Mot. Judicial Notice Ex. B at 7. Schirippa
characterizes this observation as a "threat" and
claims that his recent provision of another sample to the FDA
Commissioner again places him in jeopardy of prosecution.
Prop. Suppl. Compl. ¶¶ 5, 7. He thus seeks to the
prevent the federal government from commencing a hypothetical
future criminal proceeding against him.
urges the Court to reject Schirippa's supplemental
complaint as futile. MTD at 7-8. The Court agrees:
Schirippa's proposed claim is meritless and would not
survive a motion to dismiss. First, he fails to identify any
cause of action that would support a threat-of-prosecution
claim. Second, even assuming such a tort exists and the Court
had jurisdiction over it, he has not plausibly alleged any
imminent threat of criminal prosecution stemming from DOJ
counsel's observation, let alone a threat by the FDA.
Finally, it is "well settled" that the remedy
Schrippa seeks-an injunction barring future prosecution-is
beyond this Court's power to grant. See Miranda v.
Gonzales, 173 Fed.Appx. 840, 841 (D.C. Cir. 2006)
("[A] court will not act to restrain a criminal
prosecution if the moving party has an adequate remedy at
law," such as challenging the indictment itself,
"and will not suffer irreparable injury if denied
the Court will deny Schirripa's motions to supplement
and/or amend the complaint based on the alleged threat of
leaves one final matter. Schirripa has filed a number of
motions related to his threat-of-prosecution claim. Two such
motions are titled "Motion for Judicial Notice."
See ECF Nos. 17 (sealed) & 21 (sealed). However
titled, these motions do not contain material properly
subject to judicial notice; instead, they function as further
responses to the FDA's opposition to Schirripa's
motion to supplement the complaint. Construing these pro se
filings as motions to supplement his responses, the Court
will grant the motions and deny as unnecessary
Schirripa's request for a hearing on the motions for
judicial notice. See Pl.'s Mot. Hearing, ECF No.
29. The Court will also grant Schirrpa's Motion for Leave
to File Attachment, see ECF No. 34, which likewise appears to
operate as a response to the FDA's opposition. Finally,
because the standard of review for a motion for judgment on
the pleadings under Rule 12(c) is "virtually
identical" to the standard under Rule 12(b)(6), see
Baumann v. District of Columbia, 744 F.Supp.2d 216,
221 (D.D.C. 2010), the Court will also deny Schirripa's
motions for judgment on the pleadings. See ECF Nos. 24 &
foregoing reasons, the Court grants Defendant's Motion to
Dismiss and denies Plaintiff s three motions to supplement
and/or amend the complaint, motion for judgment on the
pleadings, supplemental sealed motion for partial judgment on
the pleadings, and request for a hearing on the motions for
judicial notice. The Court grants Plaintiffs two sealed
motions for judicial notice (as construed above) and motion
for leave to file an additional exhibit. A separate Order
shall accompany this Memorandum Opinion.
 Schirripa explains the
supplement's efficacy thusly: "the more Marijuana
you stick up your a** = the more antioxidants that can/will