Harkonen v. United States Department of Justice et al, No. 4:2012cv00629 - Document 32 (N.D. Cal. 2012)

Court Description: ORDER GRANTING DEFENDANTS 8 MOTION TO DISMISS AND DENYING PLAINTIFFS 21 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 12/3/2012. (ndr, COURT STAFF) (Filed on 12/3/2012)
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Harkonen v. United States Department of Justice et al Doc. 32 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 W. SCOTT HARKONEN, M.D., 5 Plaintiff, 6 7 8 v. UNITED STATES DEPARTMENT OF JUSTICE; and UNITED STATES OFFICE OF MANAGEMENT AND BUDGET, 9 United States District Court For the Northern District of California 10 No. C 12-629 CW ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Docket No. 8) AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Docket No. 21) Defendants. ________________________________/ 11 This case arises out of Defendant United States Department of 12 Justice (DOJ)’s denial of Plaintiff W. Scott Harkonen’s multiple 13 requests for correction of a press release that DOJ disseminated 14 announcing Plaintiff’s criminal conviction for wire fraud. 15 Plaintiff seeks review of these denials and brings facial and as- 16 applied challenges to the information quality guidelines 17 promulgated by DOJ and co-Defendant United States Office of 18 Management and Budget (OMB). 19 Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 20 12(b)(6). 21 Having considered the papers filed by the parties and their 22 arguments at the hearing, the Court GRANTS Defendants’ motion to 23 dismiss and DENIES Plaintiff’s motion for summary judgment. 24 25 Defendants move to dismiss Plaintiff opposes and cross-moves for summary judgment. BACKGROUND I. Statutory and Administrative Framework 26 A. The Information Quality Act (IQA) 27 The IQA, which was enacted in 2000, provides in full: 28 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (a) In general. The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act. (b) Content of guidelines. subsection (a) shall-- The guidelines under (1) apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and (2) require that each Federal agency to which the guidelines apply-(A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency, by not later than 1 year after the date of issuance of the guidelines under subsection (a); (B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and (C) report periodically to the Director-(i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and (ii) how such complaints were handled by the agency. 44 U.S.C. § 3516, note. 25 Title 44 U.S.C. § 3504(d)(1), in turn, provides, “With 26 respect to information dissemination, the Director [of the OMB] 27 shall develop and oversee the implementation of policies, 28 2 1 principles, standards, and guidelines to . . . apply to Federal 2 agency dissemination of public information, regardless of the form 3 or format in which such information is disseminated.” 4 B. OMB Guidelines 5 On June 28, 2001, the OMB issued proposed guidelines 6 implementing the IQA and requesting public comment. 7 34489. 8 9 66 Fed. Reg. On September 28, 2001, the OMB issued final guidelines implementing the IQA. 66 Fed. Reg. 49718. At that time, the OMB United States District Court For the Northern District of California 10 requested additional comments on a provision not relevant to the 11 case at hand and, after receiving further comments, issued updated 12 final guidelines on February 22, 2002. 13 (hereinafter, the OMB guidelines). 14 See 67 Fed. Reg. 8452 The OMB guidelines require agencies to “adopt a basic 15 standard of quality (including objectivity, utility, and 16 integrity) as a performance goal,” including “specific standards 17 of quality that are appropriate for the various categories of 18 information they disseminate.” 19 to be ensured and established at levels appropriate to the nature 20 and timeliness of the information to be disseminated.” 21 8458. 22 being presented in an accurate, clear, complete, and unbiased 23 manner.” 24 “develop a process to review the quality . . . of information 25 before it is disseminated,” and “administrative mechanisms 26 allowing affected persons to seek and obtain, where appropriate, 27 timely correction of information maintained and disseminated by 28 the agency that does not comply with OMB or agency guidelines.” 67 Fed. Reg. 8458-59. “Quality is Id. at “‘Objectivity’ includes whether disseminated information is Id. at 8460. The guidelines also require agencies to 3 1 Id. at 8459. 2 providing the agency’s information quality guidelines and 3 information regarding the number and nature of the complaints 4 received by the agency and how they were resolved. 5 Finally, agencies are required to prepare reports Id. By their terms, the OMB guidelines apply to “information” 6 that is “disseminated by Federal agencies.” 7 guidelines define information to mean “any communication or 8 representation of knowledge such as facts or data, in any medium 9 or form,” including “information that an agency disseminates from Id. at 8458. The United States District Court For the Northern District of California 10 a web page,” but not “opinions, where the agency’s presentation 11 makes it clear that what is being offered is someone’s opinion 12 rather than fact or the agency’s views.” 13 guidelines define dissemination as “agency initiated or sponsored 14 distribution of information to the public,” but states that this 15 definition “does not include distribution limited to 16 correspondence with individuals or persons, press releases, 17 archival records, public filings, subpoenas or adjudicative 18 processes.” 19 Id. at 8460. The Id. The guidelines direct that the administrative correction 20 process “shall be flexible” and “appropriate to the nature and 21 timeliness of the disseminated information.” 22 OMB commentary provided when the guidelines were published states 23 that it “does not envision administrative mechanisms that would 24 burden agencies with frivolous claims,” and that “[a]gencies, in 25 making their determination of whether or not to correct 26 information, may reject claims made in bad faith or without 27 justification, and are required to undertake only the degree of 28 correction that they conclude is appropriate for the nature and 4 Id. at 8459. The 1 timeliness of the information involved.” 2 that “an objective process will ensure that the office that 3 originally disseminates the information does not have 4 responsibility for both the initial response and resolution of a 5 disagreement.” Id. at 8458. It notes Id. 6 C. DOJ Guidelines 7 On May 14, 2002, DOJ published notice in the Federal Register 8 that its draft guidelines had been posted to its public web site 9 and requested public comments. 67 Fed. Reg. 34475. On October 4, United States District Court For the Northern District of California 10 2002, DOJ published notice in the Federal Register that its final 11 guidelines were available on its public website. 12 6266. 13 http://www.justice.gov/iqpr/iqpr.html. 14 (hereinafter, the DOJ guidelines). 15 67 Fed. Reg. The final guidelines are currently available at See also Pl.’s Ex. E The introduction to the DOJ guidelines notes that the DOJ 16 produces “a variety of information which is provided to the 17 public,” including “Departmental briefs in major cases, 18 regulations, business review letters, memoranda, press releases, 19 opinions, research, statistical and special reports, newsletters, 20 and general publications,” although “[n]ot all of this information 21 falls within these guidelines.” 22 guidelines focus on three areas: (1) the basic standard of 23 quality, including objectivity, utility and integrity; (2) the 24 process for reviewing the quality of information; and (3) the 25 process for citizen complaint. 26 guidelines state that “DOJ components will ensure disseminated 27 information, as a matter of substance and presentation, is 28 accurate, reliable, and unbiased.” DOJ guidelines. Id. 5 The DOJ As to objectivity, the Id. As to objectivity, the 1 guidelines provide that “DOJ components will ensure disseminated 2 information, as a matter of substance and presentation, is 3 accurate, reliable, and unbiased.” Id. 4 The guidelines provide that “DOJ will correct information 5 that does not meet its guidelines or those of OMB based on the 6 significance and impact of the correction.” 7 state, “Except for those categories of information that are 8 specifically exempt from coverage . . ., these guidelines apply to 9 all information disseminated by DOJ,” including “information that Id. They further United States District Court For the Northern District of California 10 an agency disseminates from a web page.” 11 exceptions include “information disseminated in the following 12 contexts: . . . press releases, fact sheets, press conferences or 13 similar communications (in any medium) that announce, support or 14 give public notice of information in DOJ.” Id. The stated Id. 15 As required by the IQA and OMB guidelines, the DOJ guidelines 16 set forth procedures for submitting requests for correction of DOJ 17 information. 18 requests for correction of information within 60 calendar days of 19 receipt.” 20 to change, or in any way alter, the content or status of 21 information simply based on the receipt of a request for 22 correction,” and that “[a]ny corrective action will be determined 23 by the nature and timeliness of the information involved and such 24 factors as the significance of the error on the use of the 25 information and the magnitude of the error.” 26 the guidelines, DOJ “need not respond substantively to frivolous 27 or repetitive requests for correction,” or “to requests that Under the guidelines, “DOJ will normally respond to Id. The guidelines provide that “DOJ is not required 28 6 Id. Further, under 1 concern information not covered by the guidelines or from a person 2 whom the information does not affect.” Id. 3 “If the requestor disagrees with DOJ’s denial of the request 4 or with the corrective action the Department intends to take, the 5 requestor may file a request for reconsideration with the 6 disseminating DOJ component” within forty-five days of DOJ’s 7 decision on the original request for correction. 8 generally provide that the official conducting the second level 9 review is not the same official that responded to the initial Id. United States District Court For the Northern District of California 10 request.” 11 reconsideration within 45 calendar days of receipt.” 12 Id. DOJ “should “DOJ will respond to all requests for Id. The DOJ guidelines also specify, “These guidelines are not a 13 regulation. 14 any legal rights or impose any legally binding requirements or 15 obligations on the agency or the public. 16 guidelines affects any otherwise available judicial review of 17 agency action.” 18 II. They are not legally enforceable and do not create Nothing in these Id. The Underlying Criminal Case 19 In March 2008, Plaintiff was indicted for wire fraud in 20 violation of 18 U.S.C. § 1343 and felony misbranding of a drug in 21 violation of 21 U.S.C. §§ 331(k), 333(a)(2) and 352(a). 22 No. 1, United States v. Harkonen, Case No. 08-CR-164 (N.D. Cal.) 23 (Patel, J.).1 Docket 24 25 1 26 27 28 The Court takes judicial notice of the allegations made in the indictment but not the truth of these allegations. The Court provides these allegations as context to understand the factual background presented by the parties, particularly by Plaintiff, but notes that these allegations were not relevant to the determination of the instant motions. 7 1 In relevant part, the indictment made the following 2 allegations: Plaintiff was the Chief Executive Officer of 3 InterMune, Inc. from February 1998 through at least June 30, 2003 4 and was a member of its Board of Directors from February 1998 5 through September 2003. 6 drugs, including a drug sold under the brand name Actimmune. 7 Actimmune was approved by the FDA to treat two rare disorders that 8 primarily affect children, chronic granulomatous disease and 9 severe, malignant osteopetrosis. InterMune developed, marketed and sold It was not approved by the FDA United States District Court For the Northern District of California 10 to treat idiopathic pulmonary fibrosis (IPF), a fatal lung disease 11 that mainly affects middle-aged people. 12 In October 2000, InterMune began a Phase III clinical trial, 13 named the GIPF-001 trial, to determine whether treating IPF 14 patients with Actimmune was effective. 15 In August 2002, data from that clinical trial failed to show 16 that Actimmune was effective in treating IPF. 17 the results of the trial with his staff at InterMune and directed 18 them to conduct additional analyses on subgroups of patients. 19 This after-the-fact analysis suggested a survival trend for 20 patients whose IPF was described by InterMune as “mild to 21 moderate.” 22 Plaintiff discussed On August 27, 2002, Plaintiff and some InterMune employees 23 spoke with the FDA about the results of the GIPF-001 Phase III 24 trial and additional subgroup analyses of patient deaths. 25 medical reviewer staff advised Plaintiff that the trial data were 26 not sufficient to gain FDA approval for Actimmune to treat IPF and 27 that further clinical testing would be required to determine 28 whether Actimmune could delay death for IPF patients. 8 The FDA 1 On August 28, 2002, InterMune issued a nationwide press 2 release publicly announcing the results of the GIPF-001 Phase III 3 clinical trial. 4 controlled the content of the entire press release. 5 caused the press release to be posted on InterMune’s website and 6 to be sent to a wire service for release to news outlets 7 nationwide. 8 Data Demonstrating Survival Benefit of Actimmune in IPF,” with the 9 subheading “Reduces Mortality by 70% in Patients With Mild to United States District Court For the Northern District of California 10 11 Plaintiff wrote the headline and subheading and Plaintiff The headline stated, “InterMune Announces Phase III Moderate Disease.” This press release, which is attached to Plaintiff’s 12 complaint in the instant case and was offered by him as evidence 13 in support of his motion for summary judgment, also stated: 14 InterMune, Inc. (Nasdaq: ITMN) announced today that preliminary data from its Phase III clinical trial of Actimmune® (Interferon gamma-1b) injection for the treatment of idiopathic pulmonary fibrosis (IPF), a debilitating and usually fatal disease for which there are no effective treatment options, demonstrate a significant survival benefit in patients with mild to moderate disease randomly assigned to Actimmune versus control treatment (p = 0.004). . . . 15 16 17 18 19 20 21 22 23 Importantly, Actimmune also demonstrated a strong positive trend in increased survival in the overall patient population, and a statistically significant survival benefit in patients with mild to moderate IPF. . . . Haddad Decl. ¶ 3, Compl., Ex. 2. The wire fraud count alleged that the press release 24 “contained materially false and misleading information regarding 25 Actimmune and falsely portrayed the results of a GIPF-001 Phase 26 III trial as establishing that Actimmune reduces mortality in 27 patients with IPF.” 28 9 1 At a pretrial conference in the criminal case, the prosecutor 2 acknowledged that the allegations in the indictment were not that 3 the data in the study were “transposed or changed in any way,” but 4 rather challenged the interpretation and presentation of the data. 5 See Haddad Decl. ¶ 4, Compl., Ex. 3G, 28. 6 During closing arguments, when discussing the press release, 7 the prosecutor stated, “I don’t need to spend any time on the 8 numbers in there. 9 3698:20-21. United States District Court For the Northern District of California 10 We all know the numbers are correct.” Id. at On September 29, 2009, the jury convicted Plaintiff of wire 11 fraud and acquitted him of felony misbranding. 12 United States v. Harkonen, No. 08-CR-164. Docket No. 240, 13 On November 17, 2010, at the first sentencing hearing, the 14 prosecutor stated, “The Government has always agreed that there 15 was no falsification of data here, so that fact is not in dispute, 16 and there’s no need to have anyone testify on that. 17 to whether there was a falsification of the conclusions that could 18 be drawn from the data, that was what the trial was all about. 19 That was the central issue in the trial . . .” 20 Compl., Ex. 7; see also Docket No. 301, 9:1-8, United States v. 21 Harkonen, No. 08-CR-164. 22 With respect Haddad Decl. ¶ 8, Similar statements were made at the second sentencing hearing 23 on April 13, 2011. 24 there, that the data that’s actually referred to in the press 25 release is accurately reflected? 26 ¶ 9, Compl., Ex. 8; Docket No. 373, 12:1-3, United States v. 27 Harkonen, No. 08-CR-164. 28 The government says the conclusions were inaccurate” and “were The court stated that “there’s no dispute, is Is that correct?” Haddad Decl. The prosecutor responded, “No dispute. 10 1 false.” 2 interpretation thereof, et cetera. 3 at 12:9-10. Id. at 12:4-8. The court replied, “It’s the Is that correct? Okay.” Id. 4 At the April 13, 2011 hearing, Judge Patel declined to impose 5 a sentence enhancement based on proof that an actual loss had been 6 suffered by victims, stating: 7 8 9 United States District Court For the Northern District of California 10 11 12 The Court finds . . . that whichever burden of proof the Court would use, that it is unable to determine with a sufficient degree of accuracy that . . . there is a loss as a result of the conduct reflected in the wire fraud count . . . there just isn’t enough evidence in the record under either burden of proof to satisfy the Court that there is a loss as a result of the press release. Id. at 116:14-25. Plaintiff’s appeal from the criminal conviction and the 13 government’s cross-appeal of his sentence are currently pending 14 before the Ninth Circuit. 15 Nos. 11-10209 & 11-10242 (9th Cir.). 16 III. The DOJ Press Release and Requests for Correction See United States v. Harkonen, Case 17 On September 29, 2009, the same day that the jury returned 18 the verdict in the criminal trial, the United States Attorney’s 19 Office in this district issued a press release announcing the 20 verdict. 21 are the following two paragraphs of the press release, and 22 particularly the underlined sections: 23 24 25 26 27 28 Haddad Decl. ¶ 2, Compl., Ex. 1. At issue in this case “Mr. Harkonen lied to the public about the results of a clinical trial and offered false hope to people stricken with a deadly disease. Manipulating scientific research and falsifying test results damages the foundation of the clinical trial process and undermines public trust in our system for drug approval,” said FBI Special Agent in Charge Stephanie Douglas. Douglas J. Carver, Special Agent in Charge of the U.S. Department of Veterans Affairs, Office of Inspector General, Western Field Office, stated “today’s verdict, 11 1 2 3 4 5 which resulted from a complex and labor-intensive investigation and trial, demonstrates our commitment to work with our law enforcement partners to aggressively pursue all individuals that would jeopardize the integrity and safety of the VA’s health care system. The actions of this defendant served to divert precious financial resources from the VA’s critical mission of providing healthcare to this nation’s military veterans. . . .” Id. at 2 (emphasis added). 6 On February 11, 2010, Plaintiff submitted his first request 7 for correction of the press release to the United States 8 Attorney’s Office, under the DOJ guidelines. Haddad Decl. ¶ 4, 9 Compl., Ex. 3. Plaintiff requested that the government correct 10 United States District Court For the Northern District of California its description of the charges against him, and stated, “The 11 Government's assertion in the DOJ press release that Dr. Harkonen 12 ‘falsif[ied] test results’ thus misrepresents what the Government 13 sought to prove in the case and misleads the public as to what the 14 jury actually found, and as to why Dr. Harkonen was convicted.” 15 Id. at 1-3. 16 On March 15, 2010, H. Marshall Jarrett, Director of the DOJ’s 17 Executive Office for United States Attorneys sent Plaintiff a 18 letter denying his request on two bases. Haddad Decl. ¶ 5, 19 Compl., Ex. 4. First, he stated that, because the complained-of 20 statement was disseminated in a press release, it was not covered 21 by the OMB or DOJ guidelines, which expressly exclude press 22 releases from their coverage. Id. at 1. Second, he asserted, 23 “Even if the guidelines applied, no retraction is necessary 24 because the statement at issue is correct.” Id. He explained, 25 26 27 28 While we agree that Mr. Harkonen did not change the data, he nevertheless used it to support his false and misleading conclusions. Because data alone is meaningless without analysis and conclusions, Mr. Harkonen’s false statements regarding the data’s meaning 12 1 2 3 were part and parcel of the results. Thus, it was accurate to say that he falsified the results. Id. at 2. On April 20, 2010, Plaintiff submitted a request for 4 reconsideration. 5 request, he argued that the DOJ guidelines did apply to the press 6 release, because it was posted on a web page and because it did 7 not “announce, support or give public notice of information in 8 DOJ,” but rather “announced the verdict of a criminal trial in 9 federal court.” Haddad Decl. ¶ 6, Compl., Ex. 5. Id. at 2-3. In the He further contended that, when an United States District Court For the Northern District of California 10 agency’s “guidelines address an issue that is treated only more 11 generally in the OMB guidelines, the agency’s own, more specific 12 guidelines control,” and thus that the OMB guidelines could not be 13 used to limit coverage under the DOJ guidelines. 14 also argued that the press release did fall within the OMB 15 guidelines, in part because a 2003 U.S. Attorneys’ Manual stated, 16 “The use of a press release . . . is the usual method to release 17 public information to the media by Department of Justice 18 components and investigative agencies.” 19 maintained that the DOJ’s defense of the merits of the statement 20 was “nonsensical” and “ignores the well-recognized distinction 21 between scientific data and scientific analysis.” 22 (emphasis in original). 23 Id. at 3. Id. at 3-4. He Finally, he Id. at 4-5 On July 2, 2010, Jarrett responded, rejecting Plaintiff’s 24 request for reconsideration. 25 stated that “a press release that announces a successful 26 prosecution is clearly public information in the Department of 27 Justice,” and thus that the press release falls within the 28 exception. Id. at 1. Haddad Decl. ¶ 7, Compl., Ex. 6. He He also stated that the “guidelines make no 13 1 distinction between a press release that is posted on the Internet 2 and one that is issued any other way (e.g., fax or mail),” and 3 that “the very fact that the information is contained in a press 4 release . . . exempts it from the guidelines.” 5 address directly Plaintiff’s argument on the merits of the 6 statement, but noted, “Because the guidelines do not apply to 7 press releases, the Department was not required to respond 8 substantively to your initial request for a retraction.” 9 Id. He did not Id. On June 8, 2011, Plaintiff submitted to the United States United States District Court For the Northern District of California 10 Attorney’s Office his second request for correction of the press 11 release. 12 argued that the statement in the press release that his actions 13 “served to divert precious financial resources from the VA’s 14 critical mission of providing healthcare to this nation’s military 15 veterans” was inaccurate and violated the DOJ and OMB guidelines, 16 because the government had been unable to prove during the 17 sentencing phase of his criminal case that the Actimmune press 18 release had caused a loss to any victim, including to the VA. 19 at 1-3. 20 the applicability of the DOJ and OMB guidelines to press releases. 21 Haddad Decl. ¶ 10, Compl., Ex. 9. In this request, he Id. He also repeated many of his earlier arguments regarding On August 4, 2011, Jarrett rejected Plaintiff’s second 22 request for two reasons. 23 again stated that the press release was not covered by either the 24 OMB or DOJ guidelines. 25 the guidelines applied, no retraction is necessary because the 26 statement accurately described the government’s position.” 27 2. Haddad Decl. ¶ 11, Compl., Ex. 10. Id. at 1-2. He explained, 28 14 He He also asserted, “Even if Id. at As you know, the government has consistently maintained that Dr. Harkonen’s false and misleading press release fraudulently caused patients to seek and doctors to prescribe Actimmune as a treatment for idiopathic pulmonary fibrosis, thereby leading to increased sales of Actimmune. Although the district court found that the government did not meet its burden of proving actual loss for purposes of Dr. Harkonen’s sentencing, this does not mean the press release did not have any effect on Actimmune’s sales. The district court simply held that it was not possible to determine with the degree of certainty necessary for Dr. Harkonen’s sentencing, the role the press release played in the increased sales of Actimmune that followed after the press release over eight years ago. 1 2 3 4 5 6 7 8 Moreover, the statement that Dr. Harkonen’s actions “served to divert precious financial resources from the VA’s critical mission of providing health care to this nation’s military veterans” can reasonably be interpreted to mean that Dr. Harkonen’s wrongdoing necessitated an investigation into the matter by the Veterans Administration. As the investigation into this matter was comprehensive, it was accurate to say that it diverted precious financial resources from the VA’s primary mission. 9 United States District Court For the Northern District of California 10 11 12 13 14 Id. at 2. 15 On August 22, 2011, Plaintiff submitted a request for 16 reconsideration of the August 4 decision. 17 Compl., Ex. 10. 18 someone other than Jarrett. 19 release was covered by the OMB and DOJ guidelines, that this 20 statement did not concern “information in DOJ” and that the 21 government was unable to provide any evidence in support of the 22 assertion that the VA had lost money that would have been devoted 23 to health care for veterans. 24 that the argument that the VA investigation used financial 25 resources that could otherwise have been devoted to the VA’s 26 central mission of health care for veterans was incorrect. 27 6. 28 chose to allocate funds that already were designated for the Haddad Decl. ¶ 11, Plaintiff asked that his request be reviewed by Plaintiff argued again that the press Id. at 1-5. He further contended Id. at He argued that “a reasonable reader would assume that the VA 15 1 investigation of potential health care fraud to the investigation 2 of this case” because the VA’s Office of Inspector General “is 3 ‘independent" from the VA and is considered ‘a separate Federal 4 agency with annual budgetary submission requirements.’” 5 (quoting VA 2010 Organizational Briefing Book 42). 6 Id. On October 7, 2011, Jarrett sent a response, stating that the 7 second request for reconsideration would “not be accommodated.” 8 Haddad Decl. ¶ 13, Compl., Ex. 12, 1. 9 As we have previously explained, the Guidelines do not apply to press releases. Moreover, because the Guidelines do not apply to press releases, the Department was not required to respond substantively to your June 8, 2011 request for a retraction and, similarly, is not required to respond substantively to your most recent request for reconsideration. The Guidelines provide that “[t]he Department need not respond substantively . . . to repetitive requests for correction . . . [nor to] requests that concern information not covered by the guidelines. United States District Court For the Northern District of California 10 11 12 13 14 15 He explained, Id. 16 On February 8, 2012, Plaintiff initiated the instant case 17 against DOJ and the OMB under the IQA and the Administrative 18 Procedure Act (APA), 5 U.S.C. § 701, et seq. 19 the first count, asserted against DOJ only, Plaintiff asserts that 20 DOJ’s denial of his first and second requests for correction was 21 arbitrary and capricious, an abuse of discretion and contrary to 22 law. 23 Plaintiff asserts that the exclusion of press releases from the 24 DOJ guidelines is arbitrary and capricious, an abuse of 25 discretion, and contrary to law. 26 against the OMB only, Plaintiff asserts that the exclusion of 27 press releases from the OMB guidelines is arbitrary and 28 capricious, an abuse of discretion, and contrary to law. Docket No. 1. In In the second count, also asserted against DOJ only, In the third count, asserted 16 1 2 On April 9, 2012, the government filed this motion to dismiss. 3 Docket No. 8. On July 2, 2012, Plaintiff filed his cross-motion for summary 4 judgment and opposition to the government’s motion to dismiss. 5 Docket No. 21. 6 7 DISCUSSION I. Defendants’ Motion to Dismiss Defendants argue that Plaintiff’s complaint should be 9 dismissed because there is no private right of action under the 10 United States District Court For the Northern District of California 8 IQA and his claims are not subject to judicial review under the 11 APA. 12 of action under the IQA and seeks review under the APA only. 13 contends that the APA does provide for judicial review of the 14 DOJ’s denial of his requests for correction. Plaintiff responds that he has not asserted a private right He 15 A. Legal Standard 16 A complaint must contain a “short and plain statement of the 17 claim showing that the pleader is entitled to relief.” 18 Civ. P. 8(a). 19 state a claim, dismissal is appropriate only when the complaint 20 does not give the defendant fair notice of a legally cognizable 21 claim and the grounds on which it rests. 22 Twombly, 550 U.S. 544, 555 (2007). 23 complaint is sufficient to state a claim, the court will take all 24 material allegations as true and construe them in the light most 25 favorable to the plaintiff. 26 896, 898 (9th Cir. 1986). 27 to legal conclusions; “threadbare recitals of the elements of a 28 cause of action, supported by mere conclusory statements,” are not Fed. R. On a motion under Rule 12(b)(6) for failure to Bell Atl. Corp. v. In considering whether the NL Indus., Inc. v. Kaplan, 792 F.2d However, this principle is inapplicable 17 1 taken as true. 2 (citing Twombly, 550 U.S. at 555). 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) When granting a motion to dismiss, the court is generally 4 required to grant the plaintiff leave to amend, even if no request 5 to amend the pleading was made, unless amendment would be futile. 6 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 7 F.2d 242, 246-47 (9th Cir. 1990). 8 amendment would be futile, the court examines whether the 9 complaint could be amended to cure the defect requiring dismissal In determining whether United States District Court For the Northern District of California 10 “without contradicting any of the allegations of [the] original 11 complaint.” 12 Cir. 1990). 13 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Although the court is generally confined to consideration of 14 the allegations in the pleadings, when the complaint is 15 accompanied by attached documents, such documents are deemed part 16 of the complaint and may be considered in evaluating the merits of 17 a Rule 12(b)(6) motion. 18 1265, 1267 (9th Cir. 1987). 19 B. Final Agency Action 20 The APA provides judicial review for “final agency action for Durning v. First Boston Corp., 815 F.2d 21 which there is no other adequate remedy in a court.” 22 § 704. 23 be ‘final’: First, the action must mark the ‘consummation’ of the 24 agency’s decisionmaking process, . . . 25 must be one by which ‘rights or obligations have been determined,’ 26 or from which ‘legal consequences will flow.’” 27 520 U.S. 154, 177-78 (1997) (internal citations omitted). 28 Supreme Court has stated, ‘[t]he core question is whether the 5 U.S.C. “[T]wo conditions must be satisfied for agency action to 18 And second, the action Bennett v. Spear, “As the 1 agency has completed its decisionmaking process, and whether the 2 result of that process is one that will directly affect the 3 parties.’” 4 Admin., 408 F.3d 638, 646 (9th Cir. 2005) (quoting Franklin v. 5 Massachusetts, 505 U.S. 788, 797 (1992)). 6 dispute that the first requirement is met. 7 centers on the second requirement. 8 9 Indus. Customers of Nw. Utilities v. Bonneville Power Defendants do not Instead, their dispute Defendants argue that the IQA does not create any right to correct information and thus that there was no right affected by, United States District Court For the Northern District of California 10 and no legal consequence to, the denial of Plaintiff’s requests 11 for correction. 12 confers legal rights on persons who are affected by an agency’s 13 dissemination of incorrect information and that the denial of his 14 requests for correction interferes with these rights. Plaintiff responds that the text of the statute 15 “The general rule is that administrative orders are not final 16 and reviewable ‘unless and until they impose an obligation, deny a 17 right, or fix some legal relationship as a consummation of the 18 administrative process.’” 19 261, 264 (9th Cir. 1990) (quoting Chicago & S. Air Lines, Inc. v. 20 Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). 21 is not a ‘definitive’ statement of the” agency’s “position and 22 does not have a ‘direct and immediate . . . effect on the day-to- 23 day business’ of the subject party, it is not ‘final.’” 24 (quoting FTC v. Standard Oil Co., 449 U.S. 232, 239 (1980)). 25 “Other relevant factors include whether the order has the status 26 of law or comparable legal force, and whether immediate compliance 27 with its terms is expected.” Ukiah Valley Med. Ctr. v. FTC, 911 F.2d Id. 28 19 “When an action Id. 1 Courts that have reviewed the IQA have uniformly found that it “does not create any legal right to information or its 3 correctness.” 4 2006); see also Habitat for Horses v. Salazar, 2011 WL 4343306, at 5 *7 (S.D.N.Y.); Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 6 317 (D.D.C. 2009), rev’d in part on other grounds sub nom. Prime 7 Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010); Wood ex 8 rel. U.S. v. Applied Research Associates, Inc., 2008 WL 2566728, 9 at *6 (S.D.N.Y.); Haas v. Gutierrez, 2008 U.S. Dist. LEXIS 48762, 10 United States District Court For the Northern District of California 2 at *25 (S.D.N.Y.); Ams. for Safe Access v. U.S. Dept. of Health & 11 Human Services, 2007 WL 2141289, at *4 (N.D. Cal.), aff’d on other 12 grounds, 399 F. App’x 314 (9th Cir. 2010). 13 courts have held that, as a result, the agencies’ actions did not 14 determine the plaintiff’s rights or cause any legal consequence, 15 and thus that there was no final agency action. 16 F. Supp. 2d at 317 (“Because the IQA does not vest any party with 17 a right to information or to correction of information, . . . the 18 USDA’s actions under the IQA did not determine Single Stick’s 19 rights or cause any legal consequence.”); Salt Inst. v. Thompson, 20 345 F. Supp. 2d 589, 602 (E.D. Va. 2004) (“Agency dissemination of 21 advisory information that has no legal impact has consistently 22 been found inadequate to constitute final agency action and thus 23 is unreviewable by federal courts under the APA.”), aff’d on 24 alternate grounds sub nom., Salt Inst. v. Leavitt, 440 F.3d 156 25 (4th Cir. 2006); see also Ams. for Safe Access, 2007 WL 2141289, 26 at *4 (rejecting plaintiff’s argument that “the legal consequence 27 of HHS’s final decision denying ASA’s [p]etition and appeal is 28 that ASA has been deprived of its right under the IQA to seek and Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir. 20 Several district Single Stick, 601 1 obtain the timely correction of incorrect information” because 2 plaintiff “failed to plead that the IQA grants any legal right to 3 the correction of information”).2 4 Plaintiff offers no cases in which a court has held to the 5 contrary. 6 the district court cases by pointing out that, on appeal, the 7 appellate courts did not directly address this issue and affirmed 8 the decisions on other grounds. 9 Safe Access, the district court granted the plaintiff leave to Instead, Plaintiff seeks to diminish the importance of For example, in Americans for United States District Court For the Northern District of California 10 amend to “proceed on a theory that defendants unlawfully withheld 11 or delayed agency action by not giving a substantive response to 12 plaintiff’s petition.” 13 plaintiff amended its complaint and the defendants moved again for 14 dismissal, the district court dismissed the case, finding that the 15 IQA and OMB guidelines did not create a duty for agencies to 16 perform actions that are legally required. 17 v. U.S. Dept. of Health & Human Services, 2007 WL 4168511, at *1-4 18 (N.D. Cal.). 19 court’s dismissal of the action on the basis that the agency had 20 made only an “interlocutory decision” on the IQA petition at issue 21 and deferred its final decision; thus, there had been no 2007 WL 2141289, at *5. After the Ams. for Safe Access On appeal, the Ninth Circuit affirmed the district 22 23 24 25 26 27 28 2 On December 2, 2011, the House of Representatives passed H.R. 3010, which would, among other things, amend 5 U.S.C. § 704 of the APA to specify, “Denial by an agency of a correction request or, where administrative appeal is provided for, denial of an appeal, under an administrative mechanism described in subsection (b)(2)(B) of the Information Quality Act, or the failure of an agency within 90 days to grant or deny such request or appeal, shall be final action for purposes of this section.” On December 5, 2011, the Senate referred the bill to the Committee on Homeland Security and Governmental Affairs; since then, no further action has been taken. 2011 H.R. 3010. 21 “consummation of the agency’s decision making process,” as 2 required by the first Bennett criterion. 3 Dept. of Health & Human Services, 399 F. App’x 314, 315-16 (9th 4 Cir. 2010) (internal quotation marks omitted). 5 reach the second Bennett criterion and thus did not address 6 whether the action was one by which rights or obligations were 7 determined or from which legal consequences flowed. 8 Time, the D.C. Circuit upheld the OMB’s decision to exclude 9 documents prepared and distributed in the context of adjudicative 10 United States District Court For the Northern District of California 1 proceedings as a reasonable interpretation of the IQA, worthy of 11 deference. 12 appellate court directly question the district court’s holding 13 that the agency action did not determine the plaintiff’s rights or 14 cause any legal consequence. 15 599 F.3d at 685-86. Ams. for Safe Access v. The court did not In Prime In neither decision did the Plaintiff suggests that, because the D.C. Circuit reached the 16 merits of the IQA claim in Prime Time--the only case to do so--a 17 contrary finding was implicit, because the court had to find first 18 that it had jurisdiction under the APA to review the merits of the 19 IQA claim before it could proceed to do so. 20 court specifically concluded the underlying agency action--USDA’s 21 determination of manufacturer’s assessments under the Fair and 22 Equitable Tobacco Reform Act (‘FETRA’)--was an adjudicatory 23 proceeding subject to judicial review directly under FETRA” and 24 thus there was no need to, and the appellate court did not, 25 consider whether judicial review was also available under the APA. 26 Family Farm Alliance v. Salazar, 749 F. Supp. 2d 1083, 1096-1100 27 (E.D. Cal. 2010); see Prime Time, 599 F.3d at 686 (“USDA's 28 determination of Prime Time’s assessments for three quarters of FY 22 However, “the appeals 1 2005 was an adjudication, attendant to which Prime Time had rights 2 to an administrative appeal and judicial review” under 7 U.S.C. 3 § 518d(i), (j)). 4 reaching the substantive question, the court found there was a 5 right to review under the APA. 6 Thus, Prime Time does not support that, by Plaintiff also tries to distinguish Salt Institute because 7 the plaintiffs in that case sought the release of information, not 8 correction of it, and the appellate court held that the plaintiffs 9 lacked standing, instead of addressing the APA requirements. United States District Court For the Northern District of California 10 Pl.’s Cross-Mot. for Summ. J. and Opp. to Defs.’ Mot. to Dismiss 11 (Pl.’s Cross-Mot.), 15. 12 limited; in it, the court discussed the IQA in detail and broadly 13 stated that “this statute creates no legal rights in any third 14 parties” and “does not create any legal right to information or 15 its correctness.” However, the appellate decision is not so Salt Inst. v. Leavitt, 440 F.3d at 158-59. 16 Further, this result is concordant with the IQA. 17 does not, as Plaintiff contends, state that the guidelines 18 “‘shall’ give ‘affected persons’ such as Dr. Harkonen an 19 opportunity ‘to seek and obtain correction of information 20 maintaining and disseminated by the agency . . .’” 21 Mot. at 13. 22 guidelines about information quality within a certain time frame 23 and sets forth particular requirements about the content of those 24 guidelines, including that the guidelines address the 25 establishment of administrative mechanisms for requests for 26 correction. 27 correct information. 28 correction did not deny him a legal right. The IQA Pl.’s Cross- Instead, the IQA requires that the OMB draft It does not provide that individuals have a right to Thus, the denial of Plaintiff’s request for 23 1 Plaintiff also contends that DOJ’s denials of his requests 2 for correction “have the ‘legal consequence’ that [he] did not 3 obtain the press release corrections that he sought under the DOJ 4 Guidelines.” 5 practical consequence that Plaintiff has not obtained what he 6 wanted, it does not have any legal consequence for him. 7 example, DOJ’s denial has no direct or immediate effect on his 8 day-to-day activities, nor is he required to take any action 9 because of it. Pl.’s Cross-Mot. at 13. Although this may have the For United States District Court For the Northern District of California 10 Plaintiff cites several cases that he states establish, “When 11 a statute gives a person the right to request an agency to take an 12 action, the agency’s decision not to take the requested action is 13 ‘final agency action,’ regardless of whether the agency had 14 discretion to deny the request.” 15 here does not give Plaintiff the right to request that DOJ correct 16 information nor the right to obtain a correction; instead, it 17 requires the OMB to promulgate guidelines by which agencies must 18 create procedures for such requests. 19 Id. at 14. However, the statute Further, the cases that Plaintiff cites on this point are 20 inapposite. 21 v. FCC, 280 F.3d 1027, 1037 (D.C. Cir. 2002), for the “general 22 proposition” that “‘an agency’s denial of a petition to initiate a 23 rulemaking for the repeal or modification of a rule is a final 24 agency action subject to judicial review.’” 25 However, the present case does not deal with Defendants’ refusal 26 to embark on formal rulemaking; instead, Plaintiff seeks to 27 address DOJ’s refusal to change a press release. 28 Transp. Co. v. United States, 737 F.2d 103 (D.C. Cir. 1984), the Plaintiff states that he cites Fox TV Stations, Inc. 24 Pl.’s Reply, 7. In Intercity 1 Interstate Commerce Commission refused to institute a declaratory 2 order proceeding, which the D.C. Circuit found had legal 3 consequence because it “had the potential of infringing upon 4 petitioners’ statutory right to a reasoned agency disposition of 5 its request,” as provided under a separate section of the APA, 5 6 U.S.C. § 554(e), which is inapplicable here. 7 separate legal right that Defendants’ refusal has infringed, as 8 discussed above. 9 regarding the statute under which members of the Armed Forces can Here, there is no Finally, the cases that Plaintiff offers United States District Court For the Northern District of California 10 seek correction of their records are inapplicable. 11 motion, Plaintiff cites Barber v. Widnall, 78 F.3d 1419 (9th Cir. 12 1996), but this decision does not address final agency action or 13 whether an action is reviewable under the APA. 14 Plaintiff cites Clinton v. Goldsmith, 526 U.S. 529 (1999); in 15 Clinton, the Court collects cases to support the proposition that 16 a servicemember can challenge an agency’s decision to drop him 17 from the rolls, or otherwise dismiss him, as final agency action. 18 Id. at 539. 19 the case at hand but fails to explain why. 20 is dropped from the rolls, he forfeits his military pay.” 21 532 n.1. 22 legal rights. 23 24 In his cross- In his reply, Plaintiff argues that these are “clearly parallel” to “When a servicemember Id. at This, unlike the denial in the case at hand, affects Accordingly, the Court holds that there has been no final agency action in the case at hand. 25 C. Committed to Agency Discretion by Law 26 Under 5 U.S.C. § 701(a)(2), judicial review is foreclosed 27 when the challenged “agency action is committed to agency 28 discretion by law.” One instance in which agency action is exempt 25 1 from judicial review under this provision is when “‘a court would 2 have no meaningful standard against which to judge the agency’s 3 exercise of discretion’ and there thus ‘is no law to apply.’” 4 Newman v. Apfel, 223 F.3d 937, 943 (9th Cir. 2000) (quoting 5 Heckler v. Chaney, 470 U.S. 821, 830 (1985)). 6 has emphasized that this “is a very narrow exception” and 7 “applicable in those rare instances where statutes are drawn in 8 such broad terms that in a given case there is no law to apply.” 9 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, The Supreme Court United States District Court For the Northern District of California 10 410 (1971) (internal quotation marks and citations omitted), 11 overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105 12 (1977). 13 Defendants contend that both agencies’ decisions to exclude 14 press releases from their IQA guidelines and DOJ’s decision not to 15 issue a correction were committed to their discretion by law. 16 “In determining whether judicial review is precluded on 17 § 701(a)(2) grounds,” the Ninth Circuit considers “‘the language 18 of the statute and whether the general purposes of the statute 19 would be endangered by judicial review.’” 20 United States, 648 F.3d 708, 719 (9th Cir. 2011) (quoting Cnty. of 21 Esmeralda v. Dep’t of Energy, 925 F.2d 1216, 1218 (9th Cir. 22 1991)). 23 discretionary language does not make agency action unreviewable.’” 24 Id. (quoting Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994)). 25 In addition to the relevant statute, courts also look to 26 “regulations, established agency policies, or judicial decisions” 27 for a meaningful standard against which to review the agency’s 28 exercise of discretion. Pinnacle Armor, Inc. v. “Therefore, ‘the mere fact that a statute contains Id. (citing Mendez-Gutierrez v. Ashcroft, 26 1 340 F.3d 865, 868 (9th Cir. 2003)); see also Padula v. Webster, 2 822 F.2d 97, 100 (9th Cir. 1987) (“Judicially manageable standards 3 may be found in formal and informal policy statements and 4 regulations as well as in statutes, but if a court examines all 5 these possible sources and concludes that there is, in fact, no 6 law to apply, judicial review will be precluded.”) (internal 7 quotation marks and citations omitted). 8 9 Several courts have considered whether the judicial review of various agency decisions under the IQA is prohibited on United States District Court For the Northern District of California 10 § 701(a)(2) grounds. 11 System Litigation, 363 F. Supp. 2d 1145, 1174 (D. Minn. 2004), the 12 plaintiffs challenged the defendants’ failure to comply with their 13 request for “information and science” regarding proposed flow 14 plans for the Missouri River. 15 meaningful standard against which to evaluate the agency’s 16 decision to deny the information quality request. 17 conclusion because, “[a]lthough the IQA directs the [OMB] to issue 18 guidelines that provide policy and procedural guidance to Federal 19 agencies for ensuring and maximizing the quality, objectivity, 20 utility, and integrity of information disseminated by the agency, 21 the plain language of the legislation fails to define these 22 terms,” and “the history of the legislation fails to provide any 23 indication as to the scope of these terms.” 24 In In re Operation of the Missouri River The court found that there was no It reached this Id. at 1174-75. In Salt Institute, the plaintiffs challenged the National 25 Heart, Lung and Blood Institute (NHLBI)’s denial of their request 26 for disclosure of all data and methods connected with a clinical 27 trial. 28 NHLBI’s decisions was not available under the APA “because the IQA The district court held that judicial review of the 27 1 and OMB guidelines at issue insulate the agency’s determinations 2 of when correction of information contained in informal agency 3 statements is warranted.” 4 holding, it stated, 5 7 8 9 United States District Court For the Northern District of California 10 11 12 14 In so Neither the IQA nor the OMB Guidelines provide judicially manageable standards that would allow meaningful judicial review to determine whether an agency properly exercised its discretion in deciding a request to correct a prior communication. In fact, the guidelines provide that “agencies, in making their determination of whether or not to correct information, may reject claims made in bad faith or without justification, and are required to undertake only the degree of correction that they conclude is appropriate for the nature and timeliness of the information involved.” 67 Fed. Reg. at 8458. Courts have determined that regulations containing similar language granted sufficient discretion to agencies to preclude judicial review under the APA. 6 13 345 F. Supp. 2d at 602-03. Id. In Family Farm Alliance, a court of the Eastern District of 15 California considered whether the IQA and its implementing 16 guidelines committed to agency discretion the agency actions that 17 the plaintiff challenged, which were the timing of the Fish and 18 Wildlife Service (FWS)’s responses to requests for correction and 19 appeals and the makeup of peer review panels. 20 address the agency’s regulations in relation to each of these, the 21 court noted that “the IQA itself contains absolutely no 22 substantive standards, let alone any standards relevant to the 23 claims brought in this case . . . .” 24 also concluded that the OMB and FWS guidelines did preserve the 25 agency’s discretion regarding these matters. 26 Before going on to Id. at 1092. The court then Id. at 1093-1100. Here, in his second and third claims, Plaintiff challenges 27 the decisions of the OMB and DOJ to exempt from their guidelines 28 information disseminated in a press release. 28 The IQA mandates 1 that the OMB “issue guidelines . . . that provide policy and 2 procedural guidance to Federal agencies for ensuring and 3 maximizing the quality, objectivity, utility, and integrity of 4 information . . . disseminated by Federal agencies.” 5 § 3516, note. 6 provide that the agencies also shall “issue guidelines ensuring 7 and maximizing the quality, objectivity, utility, and integrity of 8 information . . . disseminated by the agency.” 9 the District of Minnesota held in Missouri River, the plain 44 U.S.C. It further requires that the OMB’s guidelines Id. However, as United States District Court For the Northern District of California 10 language of the IQA does not define these terms, and its history 11 does not provide any indication as to their scope. 12 terms in fact direct the OMB itself to establish policy to guide 13 the agencies. 14 The IQA’s Plaintiff argues that the direction that the OMB’s 15 regulations provide guidance to agencies to maximize the quality, 16 objectivity, utility, and integrity of information disseminated is 17 a sufficiently meaningful standard by which to review the contents 18 of the regulations of the OMB and DOJ. 19 which the Ninth Circuit has found that regulations and statutes 20 are sufficiently meaningful for review and argues that the 21 standards in the IQA have more content than the ones addressed in 22 those cases. 23 He points to cases in However, Plaintiff is incorrect; the statute and regulations 24 examined in those cases provide significantly more meaningful 25 standards for review than the IQA does. 26 208 F.3d 838 (9th Cir. 2000), the Ninth Circuit found that the 27 Board of Immigration Appeal (BIA)’s regulations, which provided 28 that it could reopen proceedings sua sponte “in exceptional 29 In Socop-Gonzalez v. INS, situations,” provided a meaningful standard for review of agency 2 actions where the “exceptional situations” standard is used 3 throughout federal immigration law and courts routinely decide 4 challenges to the BIA’s exercise of discretion under that 5 standard. 6 the statute allowing the Secretary of Health and Human Services to 7 waive certain federal laws related to California’s Medicaid plain 8 provided “a meaningful standard by which to judge the Secretary’s 9 waiver,” where it allowed “waivers only for the period and extent 10 United States District Court For the Northern District of California 1 necessary to implement experimental projects which are ‘likely to 11 assist in promoting the objectives’ of the AFDC program,” 12 objectives that were set out with specificity elsewhere in federal 13 law. 14 F.2d 611 (9th Cir. 1980), the Ninth Circuit considered a statute 15 that provided that the Federal Aviation Administration (FAA) 16 administrator “may grant exemptions” to pilots excusing compliance 17 with certain regulations “if he finds that such action would be in 18 the public interest.” 19 ‘public interest’ standard provides law to be applied by the 20 administrator sufficient to permit judicial review.” 21 Id. at 844-45. 30 F.3d at 1067. In Beno, the Ninth Circuit found that In Keating v. Federal Aviation Admin., 610 Id. at 612. The court held “that the Id. Here, as noted, the IQA requires the OMB to issue guidelines 22 that “provide policy and procedural guidance” on “ensuring and 23 maximizing the quality, objectivity, utility, and integrity of 24 information” disseminated by agencies. 25 However, it provides no standard by which the content of the 26 guidelines is to be measured. 27 the court in Missouri River, that the IQA provides no substantive 28 standards by which to evaluate whether the OMB and DOJ regulations 44 U.S.C. § 3516, note. Accordingly, the Court holds, like 30 1 could exclude press releases from the covered dissemination of 2 information. 3 Further, the IQA and agency guidelines do not create a 4 meaningful standard by which to review DOJ’s denial of Plaintiff’s 5 requests for correction. 6 which an affected person’s request for correction should be 7 judged. 8 undertake only the degree of correction that they conclude is 9 appropriate for the nature and timeliness of the information The IQA is silent on the standards by The OMB guidelines provide that agencies “are required to United States District Court For the Northern District of California 10 involved,” which is akin to saying that the decision is committed 11 to the agency’s discretion. 12 the agency wide discretion in how to respond to a request for 13 correction and repeats language similar to the OMB guidelines. 14 also provides that DOJ “is not required to change, or in any way 15 alter, the content or status of information simply based on the 16 receipt of a request for correction.” 17 district court in Salt Institute, this Court holds that the IQA 18 and agency guidelines grant sufficient discretion to the DOJ to 19 preclude judicial review under the APA. 20 The DOJ guidelines also reserve to It Accordingly, like the Thus, because there was no final agency action and the denial 21 was committed to agency discretion by law, the Court GRANTS 22 Defendants’ motion to dismiss in its entirety.3 23 would be futile, the Court does not grant Plaintiff leave to 24 amend. Because amendment 25 26 27 28 3 Because the Court grants Defendants’ motion in full on other grounds, it does not reach their implied preclusion argument, in which they contend that the IQA’s statutory scheme demonstrates that Congress intended to preclude judicial review through its creation of an alternative review procedure. 31 1 2 II. Plaintiff’s Motion for Summary Judgment Because the Court grants Defendants’ motion to dismiss, 3 Plaintiff’s cross-motion for summary judgment is moot. 4 because the parties have briefed the issues extensively, the 5 Court briefly remarks on several arguments made by the parties 6 and notes that, had it reached the merits of Plaintiff’s motion, 7 it would have denied it. However, 8 A. Legal Standard 9 Summary judgment is properly granted when no genuine and United States District Court For the Northern District of California 10 disputed issues of material fact remain, and when, viewing the 11 evidence most favorably to the non-moving party, the movant is 12 clearly entitled to prevail as a matter of law. 13 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 14 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 15 1987). 16 Fed. R. Civ. P. The moving party bears the burden of showing that there is no 17 material factual dispute. 18 true the opposing party’s evidence, if supported by affidavits or 19 other evidentiary material. 20 815 F.2d at 1289. 21 in favor of the party against whom summary judgment is sought. 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 23 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 24 F.2d 1551, 1558 (9th Cir. 1991). Therefore, the court must regard as Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences 25 B. Statute of Limitations 26 Defendants contend that Plaintiff’s motion for summary 27 judgment on his second and third claims, facial challenges to the 28 lawfulness of the OMB and DOJ guidelines, must be denied because 32 1 they are time-barred. 2 motion to dismiss. 3 This argument was not raised in their The Ninth Circuit has held that, if a “person wishes to bring 4 a policy-based facial challenge” to a government decision, the 5 challenge “must be brought within six years of the decision.” 6 Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th 7 Cir. 1991) (holding that the general six-year statute of 8 limitations for civil actions brought against the United States, 9 28 U.S.C. § 2401(a), applies to actions for judicial review United States District Court For the Northern District of California 10 brought under the APA). 11 substance of an agency decision as exceeding constitutional or 12 statutory authority, the challenger may do so later than six years 13 following the decision by filing a complaint for review of the 14 adverse application of the decision to the particular challenger.” 15 Id. 16 “If, however, a challenger contests the The OMB and DOJ guidelines were both issued in 2002, more 17 than nine years before Plaintiff initiated this suit. 18 conceded at oral argument that his second and third claims are 19 time-barred. 20 which presents an as-applied challenge based on the denial of his 21 requests for correction, is timely because the denials took place 22 in 2010 and 2011, less than six years before he initiated this 23 action. Plaintiff The parties agree that Plaintiff’s first claim, 24 C. Accuracy of the Press Release 25 Plaintiff claims that DOJ “abandoned” its reliance on the 26 accuracy of the press release when Jarrett denied his requests for 27 reconsideration. 28 the requests for reconsideration, Jarrett did not explicitly The Court finds it did not. 33 In the responses to 1 repudiate the position that the challenged statements in the press 2 release were accurate. 3 for reconsideration had not persuaded him to change the 4 determination that the information was not covered by the 5 guidelines and the guidelines did not require any substantive 6 response to such requests, even though he had provided one. 7 he did not repeat the reasons that he determined that the press 8 release was accurate did not mean that DOJ abandoned the 9 reasoning. Instead, he explained that the requests That United States District Court For the Northern District of California 10 Under the APA, DOJ’s denial of the petitions for correction 11 “may be set aside only if it is ‘arbitrary, capricious, an abuse 12 of discretion, or otherwise not in accordance with law.’” 13 the Peaks Coal. v. United States Forest Serv., 669 F.3d 1025, 1035 14 (2012) (quoting Se. Alaska Conservation Council v. Fed. Highway 15 Admin., 649 F.3d 1050, 1056 (9th Cir. 2011)). 16 arbitrary and capricious standard is narrow, and we do not 17 substitute our judgment for the agency’s judgment.” 18 (citations omitted). 19 Save “Review under the Id. In the first request for correction, Plaintiff attacked what 20 he believed to be a suggestion in the press release that he 21 “falsif[ied] test results,” arguing that the government had always 22 conceded that he had not falsified the data from the study. 23 DOJ’s response to the request for correction, it explained that, 24 although it agreed that he did not change the data, the press 25 release did not say that he falsified the data, but rather the 26 results. 27 data’s meaning and the conclusions to be drawn from the data “were 28 part and parcel of the results,” and thus it was accurate to say In It explained that Plaintiff’s false statements about the 34 1 that he falsified the results. 2 guidelines had encompassed press releases, Plaintiff has not 3 established that DOJ’s conclusion that this statement was accurate 4 and did not warrant correction was arbitrary, capricious, an abuse 5 of discretion, or otherwise not in accordance with law. 6 Thus, even if the agency In the second request for correction, Plaintiff challenged 7 the statement that his conduct “served to divert precious 8 financial resources from the VA’s critical mission of providing 9 healthcare to this nation’s military veterans.” DOJ denied this United States District Court For the Northern District of California 10 request, noting that this “accurately described the government’s 11 position.” 12 court subsequently found, more than a year and a half after the 13 challenged press release was issued, that the prosecution had not 14 introduced evidence sufficient to meet its burden to prove for 15 sentencing enhancement purposes that an actual loss had occurred, 16 this does not mean that no financial resources were diverted. 17 Plaintiff points to no authority that requires the government to 18 establish the truth of anything that it puts into a press release 19 at the same standard at which it must prove sentencing 20 enhancements in court. 21 encompassed press releases, Plaintiff has not established that the 22 denial of his second request for correction was an abuse of 23 discretion, arbitrary, capricious or contrary to the law. Haddad Decl. ¶ 11, Compl., Ex. 10, 2. Although the Accordingly, even if the agency guidelines 24 25 26 27 28 35 1 2 CONCLUSION For the reasons set forth above, the Court GRANTS Defendants’ 3 motion to dismiss (Docket No. 8) and DENIES as moot Plaintiff’s 4 motion for summary judgment (Docket No. 21). 5 6 7 The Clerk shall enter judgment and close the file. Defendants shall recover their costs from Plaintiff. IT IS SO ORDERED. 8 9 United States District Court For the Northern District of California 10 Dated: 12/3/2012 CLAUDIA WILKEN United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36