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IN THE UNITED STATES DISTRICT COURT
Civ. Action No. 00-0173 JIM J. TOZZI, President, and
AMERICAN WOOD PRESERVERS INSTITUTE, and
WOOD PROTECTION PRODUCTS, INC., Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. --------------------------------------------------------------------
DEFENDANTS' MOTION TO DISMISS THE FIRST CAUSE OF ACTION In this action seeking action seeking a declaratory judgment, Plaintiffs challenge Defendants' actions with respect to the Persistent Bioaccumulative Toxic Chemicals Rule, promulgated by the U.S. Environmental Protection Agency (EPA), pursuant to section 313(d)(2) and (f)(2) of the Emergency Planning and Community Right to Know Act (EPCRA). In the First Cause of Action, Plaintiffs contend that Defendants (EPA officials) failed to comply with the procedural requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. §§ 3506-07 and that the Office of Management and Budget's (OMB) approval of the ICR was inconsistent with the PRA. For reasons more fully discussed in the accompanying memorandum, Plaintiffs' First Cause of Action in the Amended Complaint should be dismissed under Fed. R. Civ. P. 12 (b)(1) because this Court lacks jurisdiction to review the issues raised in the Plaintiffs' First Cause of Action. An Memorandum of points and authorities and a proposed order granting the relief sought are attached hereto. Respectfully submitted,
WILMA LEWIS, D.C. BAR #358637
MARK E. NAGLE, D.C. Bar #416364
LAURIE J. WEINSTEIN D.C. Bar #389511
EILEEN McDONOUGH ___________________________________ OF COUNSEL:
LAUREL CELESTE Dated: April 14, 2000 IN THE UNITED STATES DISTRICT COURT
Civ. Action No. 00-0173 JIM J. TOZZI, President, and
AMERICAN WOOD PRESERVERS INSTITUTE, and
WOOD PROTECTION PRODUCTS, INC., Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. --------------------------------------------------------------------
MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS On March 21, 2000, an amended complaint was filed by Plaintiffs Jim J. Tozzi, the American Wood Preservers Institute, and Wood Protection Products, Inc., challenging Defendants' actions with respect to the persistent Bioaccumulative Toxic Chemicals Rule. 64 Fed. Reg. 58, 667 (Oct. 29, 1999) (Final Rule). The Final Rule was promulgated by the U.S. Environmental Protection Agency (EPA), pursuant to section 313(d)(2) and (f)(2) of the Emergency Planning and Community Right to Know Act (EPCRA). 42 U.S.C. § 11023(d)(2) and (f)(2). That statute requires that owners or operators of certain facilities shall complete a "chemical release form" for each identified toxic chemical manufactured, used or otherwise processed as provided in the remainder of the statute. 42 U.S.C. § 11023 (a). In relevant part, the Final Rule added dioxin and seventeen dioxin-like compounds when processed or otherwise used under certain circumstances, or when manufactured (referred to collectively as "dioxin") to the Toxic Release Inventory (TRI), a list of toxic chemical subject to specific reporting requirements under EPCRA, Section 313. 64 Fed. Reg. at 58695, 58705, and 58750. The Final Rule also established an alternate threshold at which the reporting requirements would be triggered. id. In the First Cause of Action, Plaintiffs contend that Defendants EPA, Carol M. Browner, Administrator, EPA; Romulo L. Diaz, Jr., Assistant Administrator for Administration and Resource Management, EPA; Steven A. Herman, Administrator for Enforcement and Compliance Assurance, EPA (jointly referred to as "EPA") failed to comply with the procedural requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. §§ 3506-07, with respect to the Information Collection Request (ICR) for the reporting requirements in the Final Rule. Plaintiffs further claim that the Office of management and Budget's (OMB) approval of the ICR was inconsistent with the PRA. This Court does not have jurisdiction with regard to the claims relating to the Paperwork Reduction Act. Plaintiffs have failed to identify a waiver of sovereign immunity that authorizes their claims against EPA and OMB. The PRA charges OMB with the responsibility for deciding whether EPA complied with the PRA and bars judicial review of OMB's decision. 44 U.S.C. § 3507(d)(5). Plaintiffs cannot rely on the waiver of sovereign immunity in the Administrative Procedure Act (APA) for its claims against OMB because the APA states that it does not apply where another statute precludes review. 5 U.S.C. § 701(a)(1). Nor may EPA's actions with regard to the ICR be reviewed. The APA authorizes judicial review only of final agency action and EPA's actions at issue here do not meet the definition of "final." Therefore, EPA and OMB move to dismiss the First Cause of Action in the amended complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). As a result, this also requires dismissing OMB from the suit entirely.
BACKGROUND The 1995 PRA, which superseded the Federal Reports Act and the 1980 PRA, was enacted to minimize the paperwork burden resulting from the collection of information by or for the federal government, while maximizing the public benefit of such information. 44 U.S.C. § 3501. The PRA provides that OMB is responsible for determining whether a particular collection of information is necessary for the agency to perform its functions and will have "practical utility." id. § 3508. Under this statute, federal agencies may not conduct the collection of information unless OMB has approved the collection and issued a control number. id. § 3507(a)(2),(3). The PRA provides that the failure to display an OMB-issued control number is a complete defense in any administrative or judicial action seeking penalties for failing to comply with the collection of information. id. § 3512. The PRA imposes specific procedural requirements where a federal agency is proceeding through rulemaking. If the proposed collection of information is contained in a proposed rule, the publication of the notice of proposed rulemaking for public comment satisfies the agency's obligation to seek public comment under the PRA. id. § 3506(c)(2)(B). The agency must forward to OMB the proposed rule, as well as the ICR, and any information requested by OMB, before the notice of proposed rulemaking is published in the Federal Register. id. § 3507(d)(1)(A). OMB may file comments within 60 days that will be included in the public record for the rulemaking. id. § 3507(d)(1)(B). When the final rule is published by the agency, the agency must explain its response to any comments submitted by OMB. id. § 3507(d)(1)(A). OMB may disapprove the ICR if OMB determines that the agency's response to OMB's comments was unreasonable; the final rule substantially modified the proposed ICR; or the agency failed to provide information requested by OMB. id. § 3507(d)(4). "The decision by [OMB] to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review." id. § 3507(d)(5). Once a collection request is approved, OMB may re-open its review at any time prior to the expiration of the approval period. 5 C.F.R. § 1320.12(i). II. ADMINISTRATIVE BACKGROUND In order to implement the TRI program, EPA has promulgated regulations that are codified at 40 C.F.R. Part 372. The Final Rule added to the TRI list the chemical dioxin and seventeen related dioxin-like compounds with an activity qualifier; covered facilities must now report if they manufacture in excess of 0.1 grams of dioxin or dioxin-like compounds, or if they process or otherwise use in excess of 0.1 grams, where the dioxin and dioxin-like compounds are present as contaminants in a chemical and they were created during the manufacturing of that chemical. See 64 Fed. Reg. at 58695, 58704, and 58750. EPA began the process of complying with the PRA when the Final Rule was proposed for public comment. 64 Fed. Reg. 688 (Jan. 5, 1999). EPA stated that the Agency had submitted the ICR to OMB and explained how a copy of the submission could be obtained. EPA set forth its justification for the ICR and requested that interested parties submit comments to EPA and send a copy to OMB. On October 29, 1999, when the Final Rule was published, EPA submitted the final ICR to OMB. 64 Fed. Reg. at 58,748; see also Declaration of James Laity, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget (April 12, 2000) (submitted this date with Notice of Filing). On January 31, 2000, OMB approved the ICR and assigned the control number required by the PRA. id. ¶ 8. III. LITIGATION BACKGROUND Mr. Tozzi filed the complaint in this matter on January 31, 2000. He also filed a motion for a temporary restraining order and a preliminary injunction to prevent OMB from issuing a control number for the ICR, but subsequently withdrew that motion voluntarily. On March 21, 2000, an amended complaint was filed which added two additional plaintiffs, the American Wood Preservers Institute, and Wood Protection Products, Inc., and a third cause of action, which is not relevant to the instant motion. The allegations in the amended complaint relating to the PRA claim are set forth at Paragraphs 25-27, part of 28 and 29-30. Plaintiffs contend that EPA did not provide a sufficient opportunity for public notice and comment on the ICR before submitting the ICR to OMB for approval. Complaint ¶ 25. They allege that EPA plans to promulgate the "actual reporting requirements - in the form of additional guidance,''' id. ¶ 26, and claim that EPA acted inconsistently with the PRA by submitting to OMB an ICR that did not contain all the reporting requirements with respect to the TRI Rule. id. ¶¶ 27, 29. Plaintiffs seek a declaratory judgment that EPA's submission of the ICR and OMB's subsequent approval of the ICR were not in accordance with PRA. id., Prayer for Relief, ¶¶ a-b. STANDARD OF REVIEW The federal courts are courts of limited jurisdiction and may only exercise that jurisdiction which has been granted to them by Congress. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Plaintiff bears the burden of proving that subject matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A plaintiff must plead and, if challenged, prove the existence of the requisite jurisdictional facts. Gibbs v. Buck, 307 U.S. 66, 72 (1939). If plaintiff cannot meet this burden, the case should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
ARGUMENT As sovereign, the United States cannot be sued without its consent. FDIC v. Meyer, 510 U.S. 471, 475 (1994); Block v. North Dakota, 461 U.S. 273, 280 (1983). Waivers of sovereign immunity "must be unequivocally expressed in [the] statutory text, and will not be implied, Irwin v. Department of Veteran Affairs, 498 U.S,. 89, 95 (1990)." Lane v. Pena, 518 U.S. 187, 192 (1996) (emphasis added) further. See also United States Dep't of Energy v. Ohio, 503 U.S. 607, 615, 619-20 (1992) (holding waivers may not be inferred). Plaintiffs have not, and could not, identify a statute authorizing suit against a federal agency for claims based on the PRA. Accordingly, Plaintiff's First Cause of Action must be dismissed. A. The PRA Expressly Bars Judicial Review of OMB's Approval of the ICR As noted above, 44 U.S.C. § 3507 (d)(5) specifically prohibits judicial review of the decision by the Director of OMB to approve or not act upon an information collection request: "The decision by [OMB] to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review." id. § 3507(d)(5). This is as clear statement that Congress did not intend to waive sovereign immunity with regard to either the adequacy of the information collection requests submitted to OMB as contained in an agency rule or OMB's decisions with regard to such submissions. Furthermore, there is no other provision in the PRA that permits a plaintiff to file suit to challenge an agency action as a violation of the Act. The Act expressly limits the relief that courts may afford parties seeking judicial review to the "Public Protection" provision of 44 U.S.C. § 3512, under which a person may not be penalized by a federal agency for failing to respond to a collection of information request that does not display an OMB control number. This provision states (a) that "no person shall be subject to any penalty for failing to comply with a collection of information that . . . does not display a valid control number assigned by the Director [of the OMB] in accordance with this chapter," or that the respondent is not so informed by the agency, and (b) "[t]he protection provided by this section may be raised in the form of a complete defense, barm, or otherwise, at any time during the agency administrative process or judicial action applicable hereto." 44 U.S.C. § 3512. The public protection provision acts only as a defense or bar to an enforcement action. See, for example, Saco River Cellular, Inc. v. FCC, 133 F. 3d 25 (D.C. Cir. 1998); United States v. Hatch, 919 F. 2d 1394, 1397-98 (9th Cir. 1990); United States v. Smith, 866 F. 2d 1092, 1094. There is no provision in the Act for a private person to bring suit for an alleged violation of the Act. Compare Kennecott Utah Copper Corp. v. U.S. Department of Interior, 88 F. 3d 1191, 1202-03 (D.C. Cir. 1996) (in holding that Congress did not permit suits to enforce the requirement in 5 U.S.C. § 552 (a)(1) that agencies publish certain of their documents in the Federal Register, the Court noted that Congress in Section 552 (a)(1) had instead provided for non-publication as a defense). The legislative history of the Paperwork Reduction Act confirms that Congress intended the public protection defense to be the sole judicial remedy for PRA violations, thereby precluding injunctive relief as a remedy against alleged agency violations. In the floor debate on the predecessor Paperwork Reduction Act of 1980, Senator Danforth declared that the public protection provision of § 3512 "acts as an important limitation on the ability of any person to challenge the legitimacy of a request for information by resort to the paperwork Reduction Act." 26 Cong. Record at 30192. Courts that have directly addressed this issue have confirmed there is no private right of action under the PRA. Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 844 (9th Cir. 1999); Council on Regulatory and Information Management, Inc. v. U.S. Department of Labor, 1993 WL 544303 (D.D.C. 1993). In this District, Judge Oberdorfer noted that Defendants in Council on Regulatory and Information Management, Inc., "argue persuasively that the [Paperwork Reduction] Act assigns no private right of action to plaintiffs aggrieved by alleged violations of the Act." id. at *2. 1 id. Moreover, in Lujan, the Court set out a three-part test and stated that a plaintiff has standing if: (1) plaintiff suffered an "actual or imminent" injury; (2) there is a "causal connection between the injury and the conduct complained of;" and (3) that injury will likely be "redressed by a favorable decision." 504 U.S. at 560-61. Even if this Court could review EPA's submission of the ICR, it is not clear from the Amended Complaint that Plaintiffs have alleged an injury directly related to any deficiencies in the submission or that a declaratory judgment that the submission was unlawful would provide any redress for Plaintiffs. Plaintiffs' challenge to the Final Rule itself is the appropriate avenue for their claims, not a challenge to the information collection request. Therefore, this Court does not have jurisdiction under the PRA with regard to Plaintiffs' challenges to OMB's approval of the information collection request. B. Plaintiffs Cannot Avoid PRA Ban on Judicial Review of OMB's Approval of the ICR by Attack Under the APA Plaintiffs also rely on the APA as the basis for their complaint, including the PRA claims in their first cause of action.2 Complaint ¶¶ 1, 14 (a) and (d), 16, 20 and 33. With regard to EPA's actions in submitting the ICR and the appropriateness of their submission to OMB, Plaintiffs' arguments in this regard are an attempt to avoid the PRA's unequivocal bar of judicial review. For that reason, reliance on the APA does not establish their right for judicial review as such review has been explicitly banned by the PRA. While the APA is a general waiver of sovereign immunity for judicial review of final agency actions, the statute expressly states that it does not apply where "statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Heckler v. Chaney, 470 U.S. 821, 828 (1985) (in discussing whether judicial review under the APA was appropriate, the Court held that "before any review at all may be had, a party must first clear the hurdle of § 701(a)"); see James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996); Carlin v. McKean, 823 F.2d 620 (D.C. cir. 1987). Because the PRA contains a statutory bar to review of OMB's approval of the ICR, the APA's waiver of sovereign immunity is inapplicable here. In other words, Plaintiff cannot look behind the PRA's bar to EPA's action upon which OMB made the approval decision. The PRA states: "The decision by the Director [of OMB] to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review." 44 U.S.C. § 3507(d)(6). Plaintiffs admit that OMB has approved the ICR at issue here.3 However, they allege that OMB acted contrary to law in doing so because EPA allegedly had failed to comply with the PRA's procedural prerequisites for OMB review. Complaint ¶¶ 13, 14(d), 16, and 25. Because of the PRA's ban on judicial review of OMB's decision, however, the Court cannot address the question of whether OMB's approval was consistent with the PRA. Congress unambiguously designated OMB as the final decision-maker with respect to the consistency of an ICR with the PRA's requirements and therefore Plaintiffs cannot rely on the APA to circumvent this express statutory limit on judicial review. C. EPA's Submission of the ICR to OMB Is Not Final Agency Action Subject to Review under the APA Plaintiffs have also asked that the Court declare that EPA's submission of the ICR to OMB was unlawful due to procedural violations of the PRA. Complaint, Prayer for Relief a-b. But even if Plaintiffs could overcome the PRA's express bar to judicial review and obtain review of EPA's compliance with the procedural requirements of the PRA under the APA, this Court also lacks subject matter jurisdiction under the APA because EPA's submission of the ICR to OMB is not a final agency action under the APA. The waiver of sovereign immunity in the APA is found in Section 704, titled "Actions Reviewable." This section specifically provides: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. 5 U.S.C. § 704 (emphasis added). There are two key elements applicable to this case. First of all, has the agency action in question, the submission of an information collection request to OMB, been made reviewable by statute? As discussed supra., 6-10, the answer is no. Second, is the action a final agency action for which there is no other adequate remedy in a court? Here again, the answer must be negative.4 In evaluating whether agency action is final for purposes of the APA, the Supreme Court has stated that "the core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Franklin v. Massachusetts, 505 U.S. 788, 797 (1992). Bennett v. Spear, 520 U.S. 154, 178 (1997) ("the action must mark the consummation of the agency's decisionmaking process - it must not be merely tentative or interlocutory in nature" and it "must be one by which rights or obligations have been determined or from which legal consequences will flow."). See Darby v. Cisneros, 509 U.S. 137, 144 (1993); FTC v. Standard Oil Co., 449 U.S. 232, 241 (1980). In Greater New York Hospital Association v. United States, 1999 WL 1021561 (S.D.N.Y. 1999), the court refused to consider the decision to conduct audits of plaintiff hospitals a "final agency action" because the plaintiffs had not yet been found liable of any wrongdoing. id. at *6. In this case, Plaintiffs have not been subjected to any penalties or sanctions for their failure to provide the information required by the Final Rule. Furthermore, if they are subjected to penalties in the future, they will have the opportunity for judicial review of that decision and the lack of judicial review at this point does not foreclose the availability of any other "adequate remedy in a court" that is a prerequisite for review under the APA. 5 U.S.C. § 704. Moreover, to the extent that the plaintiffs' interest in this case is in not being penalized for failure to report under the Final Rule, they have available review of the Final Rule itself under the APA and/or judicial review subsequent to any enforcement action against them. Therefore, the submission of the ICR to OMB does not meet the criteria under 5 U.S.C. § 704 that would allow review under the APA. 5 U.S.C. § 704. EPA's submission of the ICR to OMB does not meet the requirements under Section 704; it is the start of a review process, the end of which, i.e., the decision, is controlled by OMB, not EPA. OMB may approve or disapprove the ICR, or make comments, any of which actions could result in changes to the ICR. See 44 U.S.C. § 3507(d)(4). Furthermore, OMB may re-open its review of the information collection request at any time after its approval prior to the expiration of the approval period. 5 C.F.R. § 1320.12(i). Moreover, EPA's action does not have legal consequences for plaintiffs, or if it does, those consequences can be addressed elsewhere. The PRA provides that the absence of an OMB-issued control number on an ICR is a complete defense in any administrative or judicial action seeking penalties for failing to comply with the ICR. 44 U.S.C. § 3512. However, the availability of this defense hinges on the actions of OMB, not EPA. Therefore, the actions taken by EPA in the submission of the ICR are not final action by EPA subject to review under the APA. CONCLUSION In sum, Plaintiffs' claims against EPA and OMB under the PRA fail because the United States has not waived sovereign immunity. Judicial review of OMB's approval of the ICR is specifically barred by the PRA, and the APA does not provide for review of EPA's actions in submitting the ICR which do not meet the APA criteria in Section 704 regarding reviewable actions. Therefore, this Court does not have jurisdiction to review the Plaintiffs' claims for alleged violations of the PRA and the Plaintiffs' First Cause of Action must be dismissed for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Respectfully submitted,
WILMA LEWIS, D.C. BAR #358637
MARK E. NAGLE, D.C. Bar #416364
LAURIE J. WEINSTEIN D.C. Bar #389511
EILEEN McDONOUGH ___________________________________ OF COUNSEL:
LAUREL CELESTE 1 In that case, Judge Oberdorfer finally dismissed the complaint based on lack of standing under Article III. Council on Regulatory and Information Management, Inc., v. U.S. Department of Labor, D.C. Civ. No. 93-2362 (Memorandum Order of February 25, 1994), attached as Attachment 1. For the reasons expressed therein, to the extent that Plaintiffs here are arguing (Cont.) that the injury they suffered was that they were unable to participate in a comment period, the Court found that was not a concrete injury sufficient to give standing. id. at 4-5, citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The Court in Council held that plaintiff's claim that it "has a cognizable 'substantive' interest in defendants' adherence to procedural requirements of the [PRA]" could not stand. id. The Court there also noted that the Supreme Court "explicitly rejected" the contention: that the government's violation of a certain . . . class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed). 2 The APA is a waiver of sovereign immunity, but does not provide jurisdiction for judicial review of agency action. Instead, the federal-question statute, 28 U.S.C. § 1331 (cited at Complaint ¶ 14), provides federal district court jurisdiction over APA claims. See Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 607 (D.C. Cir,. 1992). Plaintiffs also cite the Declaratory Judgment Act, Complaint ¶ 1, but that statute provides only a remedy; it does not confer jurisdiction. Riker Laboratories, Inc. v. Gist-Brocades N.V., 636 F.2d 772, 779 (D.C. 1980). 3 Although plaintiffs admit that OMB has approved the ICR, they do not address the fact that OMB has also issued a control number. Because the statute bars judicial review of OMB's "approval," not the issuance of the control number, which is a separate regulatory step, the control number is not germane to the instant motion. However, in order to avoid any possible dispute over the point, the Laity Declaration establishes that a control number was in fact issued. 4 In fact, the plaintiffs may not even have standing under this section. The only harm plaintiffs identify which could even conceivably give them standing is that they claim that the requirement to collect and provide information to EPA might entail some cost. See Declarations of Ramminger, ¶ 8 and Forwhaw, ¶ 6, attached to Complaint. The "injury" of not being able to participate in a comment period or the interest in ensuring that government functions as it should are not sufficient to support standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. See also, Aluminum Co. of America v. United States, 790 F2d 938, 942 (D.C. Cir, 1986)("[I]f the denial of a procedural right constitutes final agency action, then the doctrine of finality is indeed an empty box.") |