Most Recent: William Kelly former GC of CRE on judicial review of the DQA and the Prime Time decision.
Editor’s Note: In the foreward to the attached article Jim Tozzi states that Mr. Kogan laid to rest the myth that there were no hearings on the DQA. That said, the final copy of the Kogan report, which is published below, omitted that passage and is being reproduced at the end of this post. The omitted section is of particular significance because it demonstrates that both the Congress and the Administration were more than well aware of the ramifications of the DQA and therefore establishes the basis for the Judiciary not to abuse Article III standing by a judicial intervention based upon Prudential Standing as set forth below.
Lawrence Kogan has written an article published by the Washington Legal Foundation which addresses the cornerstone of the debate as to whether the Data Quality Act is judicially reviewable, REVITALIZING THE INFORMATION QUALITY ACT AS A PROCEDURAL CURE FOR UNSOUND REGULATORY SCIENCE: A GREENHOUSE GAS RULEMAKING CASE STUDY, see here.
A literal reading of the APA (Administrative Procedure Act) leads one to conclude that the DQA confers a right of judicial review since the APA makes clear that the denial of a petition is reviewable. In addition the statute says the public has a right to “seek and obtain” a correction to inaccurate information disseminated by a federal agency; what could be clearer? Arguably the DQA does not create a private right of review but it most certainly creates an implied right of review on steroids.
However courts are not bound by a literal reading of the APA because of the doctrine of Prudential Standing which states that “even when Article III constitutional standing rules have been satisfied, the Court has held that principles of prudence may counsel the judiciary to refuse to adjudicate some claims” or in other words Article III Standing Light.
Some conservative members of the Judiciary tend to oppose the DQA because it shares some of the attributes of “private attorney general” statutes which in their view interfere with the powers of the Executive Branch; some liberal members of the Judiciary who generally favor “private attorney general” statutes, tend to dislike the DQA because they feel it opens up Executive Branch decision-making to unwarranted challenges.
Mr. Kogan provides a rationale for walking through the eggshells– grant judicial review of transactions related solely to those affairs of the regulatory state which are addressed in the Data Quality Act.
If Mr. Kogan’s strategy is not adopted then it might be the time for the Congress to pass legislation which declares that the DQA (IQA) to be judicially reviewable; however prior to initiating such an action maximum effort should be made to exploit the advances made possible through the Prime Time decision.
Omitted Sections Dealing with Congressional Hearings on the Data Quality Act
Lawrence Kogan concludes:
“The historical record clearly shows that a failed six-year effort[i] to induce the Clinton administration to implement the directives[ii] contained in the 1995 PRA amendments.[iii] compelled Congress to enact the IQA. Amid repeated but ignored congressional calls for compliance, the House OMB Appropriations Subcommittee, during late March 2000, convened a hearing to question former OMB Director Jacob Lew about why OMB had not yet issued rules “with regard to data quality.”[iv] In testimony delivered before the committee, the former OMB Director responded that he had been reluctant to implement the 1995 PRA amendments’ out of concern that their call for federal agency establishment of administrative review mechanisms enabling stakeholders to contest incorrect agency information “would create rights of action where there [weren’t any] consequences” (emphasis added).[v] However, it has since been surmised that OMB’s recalcitrance had more likely been motivated by the Clinton Administration’s deeper concern that the imposition of high standards of scientific quality on the scientific and statistical data underlying scientific assessments would curtail regulators’ future ability to issue new environmental, health and safety regulations.[vi]”
[i]Senate Report 104-8 accompanying the PRA of 1995 confirms that Congress’ unanimous passage of the 1995 amendments to the PRA 1980 and their subsequent enactment into law were the culmination of a six-year “effort to adopt legislation to [reaffirm and] strengthen the Paperwork Reduction Act [of 1980] and reauthorize appropriations for [the Office of Information and Regulatory Policy].” See United States Senate, Paperwork Reduction Action of 1995, Report of the Committee on Governmental Affairs, [Together with Additional Views to Accompany S. 244], 104th Cong., 1st Sess., Rept. 104–8 (Feb. 14, 1995), available at: http://www.gpo.gov/fdsys/pkg/CRPT-104srpt8/pdf/CRPT-104srpt8.pdf.
[ii]Various provisions of the PRA of 1995 had obliged OMB to undertake the following actions, which the Clinton administration had apparently failed to do. For example, Section 3504(a) of the PRA of 1995 provided as follows: “Section 3504 […] Subsec. (d) […] This new subsection requires OMB to develop government-wide policies and guidelines to guide agency dissemination of public information, and promote public access to public information” (underlined emphasis added; italicized emphasis in original). See U.S. House of Representatives, Paperwork Reduction Act of 1995 – Committee on Government Reform and Oversight Report Together With Additional Views [To accompany H.R. 830], 104th Cong. 1st Sess., Rept. 104–37 (Feb. 15, 1995), supra note ?? at 40.
[iii]OMB had ignored Congress’ subsequent directive set forth in a 1998 House Appropriations Committee Report (H.R. Rept. No. 105-592) accompanying the 1999 Treasury and General Government Appropriations Act (H.R. 4104). See U.S. House of Representatives, Treasury, Postal Service and General Government Appropriations Bill, 1999 – Report Together With Additional Views [To accompany H.R. 4104], 105th Cong., 2d Sess., Rept. 105–592 (June 22, 1998), at 49, available at: http://www.gpo.gov/fdsys/pkg/CRPT-105hrpt592/pdf/CRPT-105hrpt592.pdf (“The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules” (emphasis added).
[iv]The Center for Regulatory Effectiveness (CRE) documented how the Clinton Administration OMB ignored Congress’ explicit directions, even after Representative Jo Ann Emerson sent a letter to former OMB Office of Information and Regulatory Affairs (“OIRA”) Administrator John Spotila in March 2000. Former Congressional Representatives Thomas Bliley (R-VA)and Jo Ann Emerson (R-MO) subsequently dispatched two letters to former OMB Director Jacob Lew in May 2009. See Letter from Congress Member Bliley to OMB Director, The Honorable Jacob Lew (May 20, 1999), The Center for Regulatory Effectiveness website, available at http://www.thecre.com/quality/letter-bliley-lew.html;Letter from Congress Member Emerson to OMB Director, The Honorable Jacob Lew (May 6, 2009), The Center for Regulatory Effectiveness website, available at: http://www.thecre.com/quality/letter-emerson-lew.html; Letter from Congress Member Emerson to John Spotila, Administrator, Office of Information and Regulatory Affairs (Mar. 29, 2000), The Center for Regulatory Affairs website, available at: http://www.thecre.com/quality/EmersonLetter20000320.html.
[v]See TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2001, Part 3, “Executive Office of the President and Funds Appropriated to the President”, Hearings Before the SUBCOMMITTEE ON THE TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS, OF THE COMMITTEE ON APPROPRIATIONS, U.S. HOUSE OF REPRESENTATIVES, 106th Cong. 477-479, 509-517, 558 (Mar. 28, 2000), available at: http://www.gpo.gov/fdsys/pkg/CHRG-106hhrg64690/html/CHRG-106hhrg64690.htm.
[vi]A report the U.S. Senate Republican Policy Committee subsequently issued in 2005 was unable to ascribe specific reasons to Clinton Administration officials’ determined refusal to comply with Congress’ data quality mandates. However, it generally surmised “regulatory officials [had likely] recognized that the law could hinder their ability to issue new regulations (including environmental regulations) because of high standards of scientific quality that then would be imposed on the scientific and statistical data supporting those regulations” (emphasis added). See also United States Senate, Republican Policy Committee, RPC Backgrounder: The Data Quality Act: History and Purpose (Jan. 18, 2005), supra note ?? at 2-3
Editor’s Note: The single most important event which lead to the passage of the DQA was the total rejection by OMB of the aforementioned statutory language directing it to issue regulations dealing with the dissemination of data and its subsequent notification of the Congress that it was not going to comply with the statute, see this letter http://thecre.com/quality/20041012_letter.htm
The second most significant event leading to the passage of the DQA: The Director of OMB in public testimony before the House Appropriations Committee stated:
“We are concerned about a change of policy that would create rights of action where there aren’t consequences. That is a tremendous expansion of potential litigation. It is the kind of issue we have worked with the Congress on over the years when we discussed regulatory reform generally, and it is a very, very serious matter”.
http://www.gpo.gov/fdsys/pkg/CHRG-106hhrg64690/html/CHRG-106hhrg64690.htm
Other “Insider” documents which are difficult to locate:
Emerson to Lew http://www.thecre.com/quality/letter-emerson-lew.html
Lew to Emerson http://www.thecre.com/quality/letter-lew-emerson.htmlLew to Emerson
Ranking Members to EPA www.thecre.com/pdf/20020607_tauzin-gillmor-letter.pdf
How OMB Data Quality Regulations Will Help Resolve Disputes Over Global Warming http://www.thecre.com/quality/global.html
The Mead decision was first referenced in Tozzi v. HHS http://www.thecre.com/cre-litigation/20010723_mead.html
From a policy perspective ,” Tozzi is an important recognition that agency action short of actual regulation can have ramifications sufficient to justify judicial review”; see http://www.thecre.com/pdf/LegalBackgounder012502.pdf The Tozzi decision exposed the strengths and weaknesses of existing law and led to the decision that then existing law (pre-1995 PRA) supplemented by the law set forth in the 1995 Paperwork Reduction Act would address the constraints emanating from the Tozzi decision.
The basic objective of the DQA was to address what the authors envisioned some fifteen years ago; namely that agency websites would become a backdoor Federal Register and that stakeholders had to have a mechanism for challenging agency reports which may or may not be standalone documents contained or referenced in a rulemaking.Had OMB complied with the mandates in the PRA no additional action would have been needed. CRE approached the Appropriations Committee because OMB refused to implement existing law [as demonstrated above] and because once a law is passed it is within the jurisdiction of the Appropriation Committee to take the necessary steps, including providing resources, to ensure that agencies implement existing law. Therefore critics who claim the matter should have been addressed by legislative committees need to study the jurisdictional authorities of the various Congressional committees.
Some Actions Supporting Judicial Review of the Data Quality Act
ABA Section on Administrative Law
“…the most important is the D.C. Circuit’s implicit ruling that an agency’s decision under the IQA is final agency action and is justiciable.”
Reinforced at
Prime-Time-Master
and http://www.thecre.com/cre-litigation/20010723_mead.html
Court may have opened door to judicial review of Data Quality Act challenges
http://www.lexology.com/library/detail.aspx?g=6d6cc8c1-e3fb-495b-9462-e06190663ccd
DC Circuit
http://thecre.com/pdf/20100603_Government_DQA_Appeal_to_Court.abrev.pdf
Director of OMB
“We are concerned about a change of policy that would create rights of action where there aren’t consequences. That is a tremendous expansion of potential litigation. It is the kind of issue we have worked with the Congress on over the years when we discussed regulatory reform generally, and it is a very, very serious matter”.
Americans for Safe Access
http://www.safeaccessnow.org/data_quality_act
Harkonen Amicus
http://thecre.com/pdf/20130609_Harkonen_Armicus.pdf
Kogan Information Quality Act
here.
Conrad DQA
Center for Regulatory Effectiveness
During Congressional deliberations on the DQA CRE was asked repeatedly whether or not the Congress should make an explicit statement that the DQA was reviewable in the courts. CRE responded with an empathetic “no”. CRE was under the impression that the APA made clear that the denial of a petition was reviewable, see for example Levy and Duncan 55 Geo. Wash. L. Rev. 596 who state:
The court of appeals held that in the absence of “‘clear and convincing legislative intent to negate review,'” an agency’s denial of a rulemaking petition is reviewable.
Therefore in the mind of CRE an agency denial of a Request for Correction was clearly reviewable. Much to our surprise a number of administrative law scholars whose fulltime job is to opine on such matters disagree with CRE— not to mention several judges! Nonetheless we are comforted by the fact that the aforementioned individuals, whose credentials are beyond question, agree with CRE
CRE believes that part of the hesitancy of a select number of judges to conclude that the DQA is reviewable is based upon their concern that the Congress was not fully aware of the implications of the DQA; hopefully the material disclosed herein will close that gap.
CRE Letter to EPA on CCS http://www.thecre.com/forum10/?p=198
National Academy of Science Data Quality Workshop
http://www.thecre.com/quality/20020325_exec.html#start
ABA Adm Law Monthly News
Years ago a writer concluded:
CRE to OMB July 2005
http://www.thecre.com/quality/2005/20050620_regweek.html
Agency Deference
http://www.thecre.com/oira/?p=4214
Tag Information Quality Act
