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' REPLY TO PLAINTIFFS' OPPOSITION In this 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). 42 U.S.C. § 11023(d)(2) and (f)(2). 64 Fed. Reg. 58, 666 (Oct. 29, 1999) (Final Rule). In the First Cause of Action, Plaintiffs contend the 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 Information Collection Request (ICR) was inconsistent with the PRA. Defendants filed a motion to dismiss the claims relating to the PRA on the grounds that this Court does not have jurisdiction with regard to the claims relating to the Paperwork Reduction Act because plaintiffs failed to identify a waiver of sovereign immunity that authorizes their claims against EPA and OMB; the PRA bars judicial review of OMB's decision with regard to the Information Collection Request, the Administrative Procedure Act (APA) also does not apply where another statue precludes review; and the challenged actions of EPA are not otherwise reviewable as final agency actions. In plaintiffs' Opposition (Pl. Op.), plaintiffs argue that: 1) the APA favors review, 2) the PRA bar against review is not applicable in this case, 3) the ICR contained in the regulation at issue is not actually contained in the regulation, 4) statutory bars are not applicable in these circumstances, 5) plaintiffs lack alternative remedies, 6) EPA and OMB officials acted in excess of their authority and 7) the APA provides a private right of action. Because arguments 1,2,4,6 and 7 all relate to the interplay between the PA and APA, we will address them together.
I. THE PRA PRECLUDES JUDICIAL REVIEW OF PLAINTIFFS' CLAIMS Section 3507(d)(6) of the PRA states: "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." 44 U.S.C. § 3507(d)(6). Congress enacted this bar on judicial review twenty years ago, as part of the original Paperwork Reduction Act of 1980. See P.L. 96-511, 94 Stat. 2818 (enacting 44 U.S.C. § 3504(h)(9)). The Plaintiffs have failed to point to a single case, during the entire history of the PRA, in which a court has carried out the review that the Plaintiffs seek here: namely, the judicial review of a PRA challenge to the promulgation of collections of information that OMB has approved in an agency rule. Plaintiffs argue that section 3506(a)(1) does not bar review of either EPA's actions under section 3507(a)(1) in developing the collection, or OMB's actions in issuing the decision.1 Pl. Opp. at 7-10. Plaintiffs maintain that section 3507(d)(6) is so limited in scope that it addresses "only OMB's actual decision" and does not bar review of any claims against EPA. Id. at 9. According to plaintiffs, EPA's actions and OMB's procedures constitute regulatory steps that are separate from OMB approval. Contrary to plaintiffs' claims, the statute makes no such distinction. The OMB decision is based in part upon the EPA actions under section 3507(a)(1). In addition, section 3507(d)(4) expressly recognizes that OMB's decisionmaking process includes an evaluation of EPA'[s compliance with section 3507(a)(1). Similarly, section 3507(b) establishes a notice and comment process a component of OMB's decision. Accordingly, the questions plaintiffs raise here - whether EPA provided sufficient detail on reporting, and whether OMB considered the appropriate information in its decision, Pl. Opp. at 1 - are actually elements that are incorporated in to OMB's decision. Plaintiffs' challenge is in substance a direct challenge to OMB's decision, a result that is inconsistent with the prohibition in section 3507(d)(6).2 The two cases that plaintiffs cite to support their argument that their claim is not barred under the PRA, Dole v. United Steelworkers of America, 494 U.S. 26 (1990) and Action Alliance of Senior Citizens of Greater Philadelphia v. Bowen, 930 F.2d 77 (D.C. Cir. 1991), actually involve challenges to agency regulations in which the issue was whether the PRA provided sufficient legal authority for a particular regulatory action. In United Steelworkers, petitioners challenged the Department of Labor's withdrawal of a regulation in response to OMB's disapproval. The issue was whether OMB had authority under the PRA to disapprove provisions mandating disclosure to third parties, and, in consequence, whether DOL had a legitimate basis to withdraw the regulation. 494 U.S. at 31-32. Similarly, in Action Alliance, petitioners challenged a Department of Health and Human Services decision to remove a mandatory self-evaluation requirement from a final regulation, and the issue addressed by the court was whether OMB had authority under the PRA to disapprove these provisions, in light of the Supreme Court's United Steelworkers case. 930 F.2d at 78. In neither of these two cases were petitioners challenging an OMB approval or failure to act under the PRA. The challenges were to agency regulatory decisions, not to any action undertaken by OMB or any agency under the approval process in the PRA. In each case, the PRA issue arose because the agency itself used the PRA to explain the decision to change the regulation, and the issue was limited to whether OMB had jurisdiction under the PRA to disapprove the provision. In this case, unlike United Steelworkers and Action Alliance, there is no dispute about whether OMB has jurisdiction. Rather, plaintiffs are questioning whether OMB and EPA followed the PRA's procedures in the course of OMB's approval of an information collection request. Pl. Opp. at 11-15. This amounts to a direct challenge to the substance of OMB's approval under the PRA: the exact action which Congress has exempted from review under section 3507(d)(6). Consequently, this Court does not have jurisdiction over the subject matter under Fed. R. Civ. P. 12(b)(1) to grant the relief that plaintiff seeks. B. The PRA Bars Plaintiffs' Claims Against EPA, Not Just Those Asserted Directed Against OMB Plaintiffs' PRA claims against EPA are subsumed within their challenge to OMB's decision to approve the Final rule's collections of information, and therefore are barred by 44 U.S.C. § 3507(d)(6). To the extent, though, that EPA's PRA actions can be viewed as distinct and separate from OMB's approval, they are still not reviewable. That is because EPA's PRA actions are not "final agency action," since EPA's role under the PRA is to submit to OMB proposed collections of information, which OMB may approve or disapprove. See Defts' Memo, at 4. The PRA designates OMB, not the federal courts, as the final arbiter of the adequacy of such a submission. II. PLAINTIFFS' ARGUMENT THAT THE PRA'S BAR AGAINST JUDICIAL REVIEW SHOULD NOT APPLY UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE IS WITHOUT MERIT Plaintiffs claims that, even where Congress has precluded judicial review '''collateral' judicial review remains available to correct the procedural or statutory violations." Pltf. Opp. at 17-24. To support this argument, plaintiffs rely on Leedom v. Kyne, 358 U.S. 184 (1958), where the Court found that the National Labor Relations Board acted outside of its authority by including within one bargaining unit both professional and non-professional employees without conducting a statutorily required vote on the wishes of the professional employees. Leedom stands for the proposition that if an agency openly violates a clear mandate of a statute even a preclusion of judicial review will not bar judicial intervention. United States Dept. of Treasury v. Federal Labor Relations Authority, 43 F.3d 682, 689 (D.C. Cir. 1994). To rely on Leedom, however, a party must also establish that no meaningful opportunity for future judicial review of its claims exists. Board of Governors of Fed. Reserve Sys. V. Mcorp Financial, Inc., 502 U.S. 32, 42-44 (1991) (holding Leedom inapplicable where company had a "meaningful and adequate opportunity for judicial review" by waiting for the Federal Reserve Board to bring an enforcement action against it). The D.C. Circuit has explained the Leedom permits review of claims that an agency has acted "in access of its delegated powers and contrary to a specific [statutory] prohibition." Dart v. United States, 848 F.2d 217, 222 (D.C. Cir. 1988). "The Leedom v. Kyne test for whether an agency has acted 'in excess of its delegated powers' has been alternatively phrased as whether the agency action 'on its face' violated a statute." Id. See also McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of Judicial Conference, 83 F. Supp. 2d 135, 158-59 (D.D.C. 1999) and cases cited therein. The instant case does not present the type of extraordinary circumstances that would justify the application of Leedom. Plaintiffs do not challenge that OMB has the statutory authority to approve a collection of information contained in a rule. Their complaint is that OMB approved the particular collection of information, even though EPA submission did not comply with the requirements of the PRA. This is not a facial violation of a statute, but would require the Court to review the record in this case to determine whether OMB had properly applied the statute. Moreover, Plaintiffs have failed to show that the will have no other opportunity to present their claim to the Court. They can, and have, sought review of the final rule itself. Therefore, they have no basis for invoking Leedom. See Quivira Mining Co. v. EPA, 728 F.2d 477, 484 (10th Cir. 1984). III. THE JUDICIAL PRESUMPTION FAVORING REVIEW OF FINAL AGENCY ACTIONS IS IRRELEVANT WHEN CONGRESS HAS EXPRESSLY BARRED REVIEW Plaintiffs argue that, because the APA "strongly favors" judicial review, the Court should allow their claim to proceed. Pltf. Opp. at 5-6. The APA, however, specifically states that it does not apply to the extent that another statute "preclude[s] judicial review." 5 U.S.C. § 701(a). "The Supreme Court has cautioned that 'before any review at all may be had [under the APA], a party must first clear the hurdle of § 701(a).'" Stockman v. Federal Election Com'n, 138 F.3d 144, 152 (5th Cir. 1998) (quoting Heckler v. Chaney, 470 U.S. 821, 829 (1985). "The validity of agency action may not be tested in court if 'statutes preclude judicial review.''' Saavedra Bruno v. Albright, 197 F.3d 1153, 1157 (D.C. Cir. 1999) (citing 5 U.S.C. § 701(a)(1)). The presumption favoring judicial review is not relevant where Congress has enacted a statute which precludes review of the agency's action.3 Id. Plaintiffs cite a number of cases to support their claim that APA review should be allowed. These cases, however, are fully consistent with the conclusion that, where Congress has precluded review, the APA does not apply. Plaintiffs rely primarily on Bowen v. Michigan Academy of Family Physicians, 476 U.S. 677, 670 (1986), which they cite for the proposition that judicial review of agency action will not be cut off absent a '''persuasive reason to believe that such was the purpose of Congress.''' In Bowen, however, the Court addressed the scope of a statutory bar and concluded that the statute did not expressly apply to the action in question and that there was no basis to find an implied bar. The statute at issue specifically established that the bar was to determinations of payment amount made by the insurance carriers who were acting under regulations promulgated by the Secretary of Health and Human Services. The Court held that this bar did not apply to judicial review of medicare payment methodology. In so doing, the Court held that "matters which were not explicitly delegated to private carriers, such as challenges to the validity of the Secretary's instructions and regulations, are cognizable in courts of law." Id. at 680. The Court specifically noted that the presumption of judicial review may be overcome by "specific language or specific legislative history that is a reliable indicator of congressional intent." Bowen at 673.4 Plaintiffs also rely on James Madison Limited by Hecht v. Ludwig, 82 F. 3d 1085 (D.C. Cir. 1995), which they claim recognized the availability of APA review where a preclusion provision existed. This contention misstates the holding in Madison. The court did not permit APA review in spite of a preclusion provision, but instead found that the statutory provision, properly construed, did not directly apply to the issue before the court. Id. at 1093.5 In contrast to Madison, the action that these plaintiffs are attempting to challenge is exactly the action identified in the preclusion language of the statute. Therefore, Madison is readily distinguishable. Another case relied upon by plaintiffs is Spawr Optical Research Inc. v. Baldridge, 749 F. Supp. 1366, 1368-69 (D.D.C. 1986), which is cited for the proposition that review can be had in the face of an explicit bar is equally inapposite. Plaintiffs fail to note that in Spawr, the court specifically found that a conflicting provision of the same statute specifically provided for a hearing. Id. at 1369. Thus, the decision was based on statutory language, not Leedom. Therefore, plaintiff's discussion of cases which emphasized a presumption of judicial review, Pl. Op. at 5, do not address the explicit bar to judicial review found in the PRA. 6 Plaintiffs' efforts to distinguish the cases cited by EPA are equally unavailing. Plaintiffs attempt to distinguish Carlin v. McKean, 823 F. 2d 620, 622-23 (D.C. Cir. 1987) but fail. Pl. Op. at 9, n. 5. Carlin involves the statutory provision granting the Postal Service Board of Directors "unfettered authority to remove" the Postmaster General. In the same way, Congress in this case gave OMB "unfettered authority" as the final arbiter of EPA's compliance with the statutory requirements of information collection requests submitted to OMB. Plaintiffs also attempt to distinguish Council on Regulatory and Information Management, Inc. v. United States Dep't of Labor, D.C. Civ. No. 93-2362 (Memorandum Order of February 25, 1994), attached as Attachment 1 to Deft's Memo, by arguing that case never addressed a right of action under the APA. That case, however, never reached an APA issue because the court recognized that the statutory bar in the PRA was conclusive. CONCLUSION For these reasons and those set forth in defendants' prior memorandum, plaintiffs claims under the PRA should be dismissed. 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 Even were the underlying submission of EPA able to be reviewed, plaintiffs could not succeed. Defendants contend that they did comply in all respects with the PRA. Moreover, the specific defects plaintiffs allege-that EPA's rule failed to identify the data respondents will need to collect, or the methodologies on which respondents will need to rely to calculate releases-ignores the explicit requirements of EPCRA section 313, which specifically address the issues plaintiffs raise. See, 42 U.S.C. 11023(a), (b), and(g)(1)(C)(vi) (requiring that TRI reports include "the annual quantity entering each environmental medium"); and 11023(g)(2) (providing that facilities may rely on "readily available data," or "reasonable estimates", and that EPCRA does not require facilities to conduct any monitoring in order to report). In addition, plaintiffs' allegations rest in part on the con content of guidance documents that EPA has not yet issued. 2 Requests not acted upon by OMB within 60 days must be assigned a control number valid for one year at the request of the agency. 5 C.F.R. § 1320.12(e)(2). 3 In another effort to avoid the statutory bar against OMB's approval of EPA's ICR, plaintiffs argue that they have a "right of action" under the APA. Pl. Op. at 27. But Plaintiffs' argument in this regard relies entirely on its argument that the statutory bar in the PRA is not applicable in this case. Pl. Op. at 6-23. Because the APA does not allow review where it is precluded by statute, 5 U.S.C. § 701(a)(1), plaintiffs' argument fails. See also Deft's Memo. At 10-11. 4 To the extent that plaintiff argues that the legislative history cited by defendants is not controlling, Pl. Op. at 10, n. 6, that argument is not particularly significant given the clear and persuasive evidence of the statute itself. It is well established that in matters of statutory construction, one must first look to the language of the statute itself. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992) ("In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished") (citations omitted). 5 Madison involved the appointment of the Federal Deposition Insurance Company (FDIC) as a receiver for a national bank. Plaintiff was challenging the appointment of the FDIC. The Comptroller of the Currency/FDIC argued that a statutory provision stated that no court could take any action "to restrain or effect the exercise of powers of functions of the FDIC as a conservator or a receiver" id. at 1092, and that meant plaintiff cold not pursue the appointment itself. The court rejected this reading of the statute. 6 In addition, the Court in Bowen specifically noted that the bar with regard to the individual determinations was a legitimate congressional interest avoiding judicial review that would '''unduly ta[x]' 'the federal court system with little real value to be derived by participants in the program.''' Bowen at 675 (citations omitted). In this case, if the court found that all agency information collection requests approved by OMB could be challenged as well as the final rules, the potential for litigation would be significant and could very easily overwhelm an already busy judiciary. Moreover, such litigation would be of no real benefit because deficiencies in submissions could be easily remedied in subsequent submissions, thus achieving only a delay in the challenge to the final rule, not a different outcome. |