
    CENTER FOR FOOD SAFETY; Center for Biological Diversity; Sierra Club; Humane Society of the United States; Animal Legal Defense Fund; United Farm Workers of America, Plaintiffs-Appellants, v. Margaret A. HAMBURG, Commissioner, United States Food and Drug Administration; U.S. Food & Drug Administration, Defendants-Appellees, Elanco US Inc., Intervenor-Defendant-Appellee.
    No. 15-17510
    United States Court of Appeals, Ninth Circuit.
    Argued’ and Submitted April 17, 2017 San Francisco, California
    Filed August 22, 2017
    Cristina R. Stella, Animal Legal Defense Fund, Cotati, CA, Paige Tomaselli, Staff Attorney, Center for Food Safety, San Francisco, CA, for Plaintiffs-Appellants Center for Food Safety, Sierra Club
    Cristina R. Stella, Animal Legal Defense Fund, Cotati, CA, Paige Tomaselli, Staff Attorney, Center for Food Safety, San Francisco, CA, Hannah Mary Margaret Connor, Center for Biological Diversity, Washington, DC, for Plaintiff-Appellant Center for Biological Diversity
    Jonathan R. Loworn, Chief Counsel, Peter Alfred Brandt, Attorney, Laura Fox, Esquire, The Humane Society of the United States, Washington, DC, Mario G. Martinez, Esquire, Attorney, Martinez Aguilasocho & Lynch, Bakersfield, CA, for Plaintiff-Appellant Humane Society of the United States
    Jonathan R. Loworn, Chief Counsel, Peter Alfred Brandt, Attorney, The Humane Society of the United States, Washington, DC, Mario G. Martinez, Esquire, Attorney, Martinez Aguilasocho & Lynch, Bakersfield, CA, for Plaintiffs-Appellants Animal Legal Defense Fund, United Farm Workers of America
    Jeffrey S. Beelaert, Attorney, DOJ— U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants-Appellees
    Bradley Keith Ervin, Mark H. Lynch, Covington & Burling LLP, Washington, DC, Emily Johnson Henn, Esquire, Cov-ington & Burling LLP, Redwood Shores, CA, for Intervenor-Defendant-Appellee
    Daniel Lutz, Georgetown University Law Center, Washington, DC, for Amicus Curiae Environmental, Administrative, and Food Law Professors
    Philip S. Goldberg, Attorney, Shook, Hardy & Bacon L.L.P., Washington, DC, for Amicus Curiae Animal Health Institute
    Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN, District Judge.
    
      
       The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation.
    
   MEMORANDUM

Appellant Center for Food Safety (CFS) appeals the district court’s dismissal of its complaint alleging that the Food and Drug Administration (FDA) approval of the use of animal drugs violated the National Environmental Policy Act. CFS contends that the district court erred in dismissing its complaint based on CFS’s failure to satisfy the Administrative Procedure Act’s exhaustion requirements.

The district court properly held that, under the facts of this case, the FDA should be afforded an opportunity to apply its expertise to assess CFS’s claims in the first instance “prior to possible judicial intervention.” Ctr. for Food Safety v. Hamburg, 142 F.Supp.3d 898, 907 (N.D. Cal. 2015). Requiring CFS to file a citizen petition “prevents[s] premature interference with agency processes so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.” Tamosaitis v. URS Inc., 781 F.3d 468, 478 (9th Cir. 2015), as amended (citation omitted).

The district court cogently proposed to stay the proceedings to allow CFS to file a citizen petition. See Ctr. for Food Safety, 142 F.Supp.3d at 910. However, the parties requested that the district court enter a final order dismissing CFS’s complaint, likely in order to ensure appellate review. The district court’s inclination to stay the action was spot on. See 21 C.F.R. § 10.25(a); see also 21 C.F.R. § 10.45(b) (providing that “[a] request that the Commissioner take or refrain from taking any form of administrative action must first be the subject of a final administrative decision based on a petition submitted under § 10.25(a) ... before any legal action is filed in a court complaining of the action or failure to act”).

Accordingly, the district court is directed to stay further proceedings to allow CFS to comply with the FDA’s citizen petition requirement. The district court retains authority to “compel agency action unlawfully withheld or unreasonably delayed” pursuant to 5 U.S.C. § 706(1) following completion of the administrative proceedings.

VACATED and REMANDED with directions. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     