|
IN THE UNITED STATES DISTRICT COURT
Civ. Action No. 00-0173 JIM J. TOZZI, President, Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. --------------------------------------------------------------------
PLAINTIFFS' OPPOSITION TO DEFENDANTS' Plaintiffs, through their undersigned counsel, hereby oppose the April 14, 2000 motion of Defendants to dismiss the First Cause of Action, which relates to Defendants' violations of the Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3520 ("PRA"). Contrary to Defendants' assertions, the Court does have jurisdiction to review Plaintiffs' PRA claims. Defendants' motion to dismiss cannot shield them from liability for these violations, and the Court should therefore deny Defendants' motion. INTRODUCTION On October 29, 1999, Defendant EPA published a final rule on Persistent Bioaccumulative Toxic Chemicals ("final rule"). See 64 Fed. Reg. 58,665 (Oct. 29, 1999). The final rule imposes new reporting requirements for dioxins and furans under the Toxic Release Inventory Program ("TRI"). See 42 U.S.C. § 11023 (Emergency Planning and Community Right to Know Act, § 313). Although the final rule established a reporting threshold for the dioxins and furans -- a numerical threshold of 0.1 gram for identifying who must report -- the final rule did not specify the specific the contents of the reporting requirement, i.e., what releases the affected respondents are required to report. Likewise, the final rule did not provide a methodology explaining how the volume of such reportable releases would be calculated. According to EPA, this missing additional information is to be made public in a forthcoming agency "guidance". See 64 Fed. Reg. at 58672 (2d col.) ("EPA is providing additional guidance on the level of precision at which facilities should report their releases"). The purposes of the PRA are, inter alia, to minimize the paperwork burden on individuals, small businesses and other persons resulting from federal government collection of information, and to improve the accountability of OMB and the federal agencies to the public. 44 U.S.C. § 3501(1), (11). The statute affords the public an opportunity to review and comment on an agency's proposed collection of information before the collection request is submitted to OMB for approval. See 44 U.S.C. §§ 3506(c)(2)(A), 3506(c)(3), 3507; 5 C.F.R. §§ 1320.3(l), 1320.8. As set forth in the Amended Complaint at pp. 8-10, the information collection request ("ICR") that EPA submitted to OMB in connection with the final rule was legally deficient in key respects and thus deprived the public and Plaintiffs of an opportunity to comment meaningfully on the proposed information collection. Plaintiffs had no way to calculate and comment on the burden of the new reporting requirements, for example, in the absence of an explanation of how EPA intended to define a reportable "release". Plaintiffs therefore seek relief for having been denied an opportunity to participate in the administrative process to the extent provided under the Paperwork Reduction Act. In their motion to dismiss, Defendants incorrectly assert that the Court lacks jurisdiction over Plaintiffs' Paperwork Reduction Act claims because (1) sovereign immunity bars the claims, (2) there is no private right of action, and (3) there has been no final agency action. None of these arguments is sound. In particular, Defendants have misconstrued the narrow judicial preclusion provision contained in PRA section 3507(d)(6). As discussed below, this provision does not apply to the present lawsuit. STANDARD OF REVIEW In ruling on Defendants' motion to dismiss under Federal Rule 12(b)(1), the Court should restrict itself to the face of the pleadings, and Plaintiffs should receive the same protections that they would receive in defending a motion under Rule 12(b)(6). Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953 (1980); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977); 5A Wright & Miller, Federal Practice & Procedure: Civil 2d § 1361 at 456 (2d ed. 1990). The Court must accept all of the complaint's well-pleaded factual allegations as true and draw all inferences from those allegations in Plaintiffs' favor. 5A Wright & Miller, supra, § 1363 at 456; see Croixland Properties Ltd. Partnership v. Corcoran, 174 F.3d 213, 215 (D.C. Cir.) (explaining that these standards govern Rule 12(b)(6) motions), cert. denied, ___ U.S. ___, 120 S.Ct. 531 (1999).1 ARGUMENT I. The APA Strongly Favors Judicial Review. Contrary to Defendants' implications, the judicial review procedures of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"), are to be widely construed. The APA "embodies the basic presumption of judicial review to one 'suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967). The Supreme Court has recognized a "strong presumption that Congress intends judicial review of administrative action," so that "judicial review will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986) (quoting Abbott Labs., supra, 387 U.S. at 140) (emphasis added). Where there is substantial doubt about congressional intent to preclude judicial review, the general presumption favoring review is controlling. Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984). The D.C. Circuit follows the Supreme Court in favoring reviewability under the APA. See City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979). As that court has stated, "The generous review provisions of [the APA] must be given a hospitable interpretation." Phillips Petroleum Co. v. Brenner, 383 F.2d 514, 516-17 n. 8 (D.C. Cir. 1967) ("only on a showing of clear and convincing evidence of a contrary legislative intention should the courts restrict access to judicial review") cert. denied, 389 U.S. 1042 (1968). II. Section 3507(d)(6)2 Does Not Bar Plaintiffs' First Cause of Action. Defendants first assert (Def. Mem. at 7) that 44 U.S.C. § 3507(d)(6) expressly bars Plaintiffs' PRA claims. Section 3507(d)(6) provides: The decision by the Director to approve or not act upon a collection of information contained in an agency rule shall not be subject to review. 44 U.S.C. § 3507(d)(6). As discussed below, this judicial review preclusion provision does not apply to the facts of this case. A. Defendants Concede that the Judicial Preclusion Provision Applies Only to ICR Approvals under Section 3507(a)(2), Not to the Violations Plaintiffs Allege Here. The gravamen of the Amended Complaint is that EPA violated its statutory duties under the PRA to send OMB a complete ICR and to provide notice and an opportunity to comment on a complete ICR. See, e.g., Amended Complaint ¶¶ 14(a), 16, 25-27, 29-30. By its express terms, the PRA's provision precluding judicial review does not apply to these claims. Section 3507(d)(6) bars review only of OMB's decision to approve or take no action on EPA's proposed information collection. Plaintiffs' EPA claims allege agency violations of mandatory statutory requirements that are separate and distinct from OMB's approval decision. Section 3507(a) of the PRA mandates the completion of three separate regulatory steps before EPA can "conduct or sponsor the collection of information" required by EPA's final rule. First, EPA must comply with the very specific and detailed requirements of Section 3507(a)(1). These requirements include submitting a complete ICR to OMB and publishing a Federal Register notice affording the public a meaningful opportunity to submit comments to EPA and OMB on the proposed collection of information. 44 U.S.C. § 3507(a)(1). Second, EPA may not collect the information unless OMB approves the ICR or "approval has been inferred." 44 U.S.C. § 3507(a)(2). OMB cannot approve the ICR unless and until EPA has first complied with its duties under section 3507(a)(1). Id. Third, EPA cannot act on the information collection unless and until the agency has obtained from OMB "a control number to be displayed upon the collection of information." 44 U.S.C. § 3507(a)(3). Defendants concede in their brief that the PRA preclusion provision, section 3507(d)(6), only "bars judicial review of OMB's 'approval,' not the issuance of the control number, which is a separate regulatory step...." Def. Mem. at 10 n.3. By the same correct reasoning, section 3507(d)(6) does not bar judicial review of EPA's compliance with its section 3507(a)(1) duties, which is also a separate regulatory step. This conclusion -- conceded by Defendants -- is also compelled by the language of section 3507(d)(6) itself. The provision bars judicial review only of "[t]he decision by the Director to approve or not act upon a collection of information contained in an agency rule...." 44 U.S.C. § 3507(d)(6). By its express terms, section 3507(d)(6) is limited to the second step above, i.e., the OMB approval step in a trifurcated regulatory process. The provision does not bar judicial review of Plaintiffs' claims that EPA violated the agency's first step duties under section 3507(a)(1). If Congress had intended to bar judicial review of EPA's alleged violation of its duties under section 3507(a)(1), it would have done so expressly. Defendants apparently argue that section 3507(d)(6) bars any private cause of action for alleged violations of the PRA. This argument ignores the fact that both the Supreme Court and the D.C. Circuit have reviewed private party claims challenging OMB and agency action under the PRA. See, e.g., Dole v. United Steelworkers of Am., 494 U.S. 26 (1990)3 ; Action Alliance of Senior Citizens of Greater Philadelphia v. Sullivan, 930 F.2d 77 (D.C. Cir.), cert. denied, 502 U.S. 938 (1991).4 The Supreme Court and D.C. Circuit could not have reviewed these private parties' PRA claims if, as Defendants here claim, section 3507(d)(6) bars all judicial review and if there were no private party right of action for any violation of the PRA. 5 Section 3507(d)(6) is quite clearly limited in scope. It bars judicial review of only OMB's actual decision approving EPA's proposed information request. Moreover, by its express terms, the provision does not bar any claims against EPA. In addition to their claims against EPA, Plaintiffs also claim that OMB violated the PRA's public notice and comment requirements. Amended Complaint 14(a), 20, 22, 25-27, 29-30. These claims do not challenge OMB's approval of EPA's ICR. Instead, they challenge OMB's violation of its non-discretionary duty to provide public notice of, and an opportunity to comment on, a complete ICR, which EPA was required to -- but never did -- submit. Like the Plaintiffs' EPA claims, section 3507(d)(6) does not bar review of their OMB claims because the provision applies only to OMB's actual decision to approve or take no action on EPA's proposed information collection. By its express terms, section 3507(d)(6) does not apply to Plaintiffs' claims alleging material and substantial procedural violations that are separate from and predate the actual OMB approval decision. 6 B. Defendants Never Satisfied the Jurisdictional Prerequisites for Substantive OMB Review of the Information Collection Request. Section 3507(d)(6) was designed to prevent judicial scrutiny of OMB's substantive decision on the merits of a given information collection. This section does not shield the Defendants from judicial intervention to prevent OMB from exercising discretion before it has jurisdiction or authority to do so. Administrative law recognizes a fundamental distinction between challenging an agency's jurisdiction to exercise discretion and challenging the way in which the agency exercises discretion. In the latter case there may not be judicial review where Congress clearly intended for the agency to make discretionary, policy-like decisions. However, in the former case - i.e., where the agency exceeds the scope of its authority to exercise discretion - judicial review is always available under the APA. See, e.g., Bowen v. Michigan Academy of Family Physicians, supra, 476 U.S. at 675 (statutory scheme "simply does not speak to challenges mounted against the method by which such amounts are to be determined rather than the determinations themselves"); COMSAT Corp. v. FCC, 114 F.3d 223, 2247 (D.C. Cir. 1997) ("there is no preclusion of judicial review where, as here, the Commission has acted outside the scope of its authority under § 159(b)(3)"). 7 Applying this principle to the present case, the Court should conclude that OMB did not have jurisdiction to pass on the merits of EPA's proposed information collection because EPA did not comply with the statutorily mandated procedures that are conditions precedent to OMB's exercise of jurisdiction over an ICR clearance package. The Paperwork Reduction Act makes clear that OMB could not consider a clearance package until certain procedural events occurred. Because these events did not occur, OMB never arrived at the stage where it could lawfully exercise its discretion to approve or disapprove EPA's proposal. 1. EPA's Federal Register Notice and the Clearance Package Submitted to OMB Were Incomplete. Under the Paperwork Reduction Act, OMB is not authorized to consider the merits of a clearance package unless and until the following conditions precedent, among others, have occurred. First, the sponsoring agency must have, in fact, established a "collection of information." Second, the agency's Federal Register notice must afford members of the public (and, in particular, prospective respondents such as Plaintiffs) an adequate opportunity to address the "need" for and "practical utility" of the proposed information collection. See 5 C.F.R. § 1320.8(d)(1)(i) (incorporated by reference into § 1320.11(a)). Third, both the Federal Register notice and the "Supporting Statement" in the clearance package submitted to OMB must contain an accurate estimate of the total reporting and recordkeeping burden that will result from implementation of the "collection of information" so the prospective respondents can comment on their accuracy and appropriateness in light of the "practical utility" test. See id. § 1320.8(d)(1)(ii), (iv). To the extent that these three conditions did not occur, OMB lacked the authority to "exercise discretion" (i.e., to consider the merits) with respect to EPA's request for clearance. EPA has failed to comply with all three of these requirements. With respect to the first requirement, EPA has yet to disclose, either to OMB or to the public, the full substance of the "information collection" it intends to implement. A collection of information is defined as a "requirement...for persons to...report... information." 5 C.F.R. §1320.3(c). To date, EPA has announced that respondents will be required to utilize unspecified data, and to apply that data to an unspecified methodology in order to arrive at some unspecified final "release" calculation. In other words, EPA has yet to disclose the real substance of the "information collection" to either OMB or the public. Second, because EPA has not yet disclosed the data and methodology to be used to perform release calculations, it is impossible for EPA, respondents or OMB to assess the substantive issues enumerated in the PRA (e.g., need, "practical utility", accuracy of burden estimates and appropriateness of burden estimates). See discussion at pp. 19-20, infra. Finally, with respect to the third requirement, it is impossible for EPA to have arrived at real and accurate estimates of the burden on respondents resulting from compliance with an undisclosed release calculation methodology. Therefore, by definition, the estimates that EPA published in its Federal Register notice are baseless. EPA has thus failed to comply with section 3507(a)(1), which is a precondition to the effective submission of a clearance package to OMB.8 2. EPA's Attempt to Evade Public and OMB Scrutiny By Submitting an Incomplete Clearance Package Is Contrary to the Primary Purpose of the PRA's OMB Review Requirement. EPA has explained that it intends to inform the public of the substance of the information collection requirement through informal guidance, i.e., by availing itself of an unlawful process that does not involve public or OMB scrutiny. Plaintiffs submit that EPA has thus sought formal clearance of a mere shell of an information collection in order to avoid public and OMB review of the substance of the information collection as required by the Paperwork Reduction Act. This violates both the letter and the spirit of the PRA. The Paperwork Reduction Act was enacted based on Congress's recognition that federal recordkeeping and reporting requirements impose significant economic burdens on individuals, businesses and society as a whole. The broad purpose of the PRA is to reign in such paperwork requirements by ensuring that OMB reviews the propriety of each new or renewed "information collection" based on objective, uniform criteria. The statute prescribes a specific procedure to ensure that: (i) respondents have an opportunity to address the substantive issues; and (ii) all of the substantive issues are presented to OMB before OMB considers the merits of a clearance package. Because EPA has not disclosed the substance of the reporting requirement at issue in this lawsuit, the public has been deprived of its opportunity to comment on -- and OMB has not been able to consider -- the following substantive issues: (i) "Necessity" of the proposed information collection to EPA's functions; (ii) "Practical utility," i.e., whether EPA will be able to use the information once collected, taking into account, for example, factors affecting scientific or statistical validity; (iii) Accuracy of EPA's estimates of the burdens to be imposed on respondents; (iv) Appropriateness of the burden on respondents, i.e., weighing the time and resources necessary to respond against the importance of the information to EPA's functions; and (v) Whether the information collection could be modified to make it less burdensome while still achieving the objectives of the collection. See 5 C.F.R. §§ 1320.3(b)(1); 1320.3(l). In sum, EPA committed a legal violation by submitting a materially incomplete and inaccurate clearance package to OMB and by not affording the Plaintiffs and public their full statutory and procedural rights. OMB then exceeded its authority by accepting the defective clearance package for consideration. C. The Information Collection Was Not "Contained" in an Agency Rule. By its terms, the statutory provision precluding judicial review of OMB decisions to approve or not act upon a collection of information is limited to those information collections "contained in an agency rule". 44 U.S.C. § 3507(d)(6). In this case, the critical elements of the information collection will be "contained" not within the final rule, but rather within some future agency "guidance". EPA, in effect, has merely announced who the respondents will be but not what information the respondents will have to report. As discussed above, the final rule does not explain what data respondents will have to gather to determine releases, or the methodology that respondents will have to apply to manipulate the data to arrive at the final release amount. Yet these missing links are the essence of the information collection. Without these missing elements, EPA has failed to disclose for evaluation, either to OMB or to the public, its real information collection. EPA's failure to disclose these missing links goes to the heart of the review process under the Paperwork Reduction Act. The key issue to be determined by OMB, and on which the public is entitled to comment, is whether the agency's proposed information collection would have "practical utility." It is impossible to assess this key issue, however, without knowing what data must be gathered, how they are to be gathered, and how the data will be manipulated to arrive at final release calculations.9 None of this important detail was set forth in the final rule. Instead, EPA plans to slip these requirements into effect through some future guidance. Because the proposed rule does not "contain" the true collection of information at issue, section 3507(d)(6) does not apply, and judicial review by this Court is authorized to correct this violation of statutory procedure under the APA. D. Courts Find Statutory Provisions Precluding Judicial Review Inapplicable Under the Circumstances Present Here. Even where Congress clearly intended to preclude judicial review of an agency's substantive or factual determinations, judicial review is nevertheless required when one or more of the following circumstances is present: (1) Where the agency violates procedural or statutory rights of affected parties in making its substantive determination; (2) Where plaintiffs challenge the mechanism by which the agency makes its substantive determination; (3) Where no other adequate judicial-type remedy is available to address plaintiffs' grievance; or (4) Where the agency acts in excess of its statutory authority. As discussed below, all four of these exceptions apply here. The Court should therefore allow judicial review regardless of whether it finds that Congress intended to preclude judicial review of OMB's substantive determination on the merits of the information collection. 1. Defendants Violated Plaintiffs' Procedural and Statutory Rights. Where an agency violates procedural or statutory rights in making an individualized determination that would otherwise be shielded from judicial review, "collateral" judicial review remains available to correct the procedural or statutory violations. As early as 1958, the Supreme Court recognized this rule in Leedom v. Kyne, 358 U.S. 184 (1958). In Leedom, the National Labor Relations Board certified a bargaining unit that included both professional and non-professional employees, despite the fact that the National Labor Relations Act prohibited such "mixed" units. The Court held that, while a "decision of the Board made within its jurisdiction" might not be subject to judicial review, [the Board's] attempted exercise of power that had been specifically withheld...deprived the professional employees of a "right" assured to them by Congress. Surely, in these circumstances, a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right so given. 358 U.S. at 188. Similarly, in Spawr Optical Research, Inc. v. Baldrige, 649 F. Supp. 1366, 1368-69 (D.D.C. 1986), this Court held that, although a decision of the Commerce Department under the Export Administration Act denying export privileges is normally final under the preclusion provision in that statute, judicial review was nevertheless appropriate where the lawsuit alleged violations of the exporter's procedural rights (i.e., unlawful adoption of factual determinations from a prior criminal proceeding and failure to provide a new evidentiary hearing). 10 In the present lawsuit, EPA and OMB have deprived plaintiffs of their statutory and procedural rights under the Paperwork Reduction Act to notice of, and an opportunity to comment on, a proposed information collection that will have a significant impact on Plaintiffs' business operations. EPA also violated OMB's implementing regulation by not providing Federal Register notice and opportunity for public comment. According to EPA, the purpose of the proposed information collection is for respondent facilities to report on the amounts of dioxin released into the environment. Yet the final rule does not disclose: (i) what specific records facilities will have to use to calculate releases; or (ii) what methodology will be used to arrive at final release calculations for reporting to EPA. These two missing elements are the real substance of the information collection. EPA's evasive approach of supplying the missing elements only in the form of "guidance," violates the PRA's implementing regulation, which requires that the Federal Register notice provide respondents with enough information to allow them to address four key issues in their comments. The regulation requires that, when an information collection is contained in a proposed rule, the agency notice must provide the public with an opportunity to comment on the following aspects of the proposed information collection: (i) Whether the information collection would have "practical utility" - In this case, assessing practical utility requires taking into account the data that would be used as the basis for release calculations and the methodology that would be applied to the data to arrive at the final calculation. Because EPA has not disclosed the data that will be used to calculate releases, or the methodology that will be applied to the data, respondents have been denied their opportunity to comment on this question. See 5 C.F.R. § 1320.8(d)(1)(i). (ii) Accuracy of the agency's estimate of burden -- Because EPA has not disclosed the data that will be used, or the methodology that will be applied, respondents have been denied their opportunity to comment on this question. More fundamentally, it is impossible for EPA yet to have developed accurate burden estimates in light of the fact that EPA has not yet determined with "precision" what respondents will have to do. OMB's practice in these situations where the burden estimates are deficient is to return the clearance package (and not to assume jurisdiction over the merits of the proposal) and to require the agency to resubmit a corrected clearance package with accurate burden estimates. See 5 C.F.R. § 1320.8(d)(1)(ii). (iii) Ways to enhance the quality and utility of the release calculations --Respondents have been denied their opportunity to comment on this issue due to the lack of disclosure with respect to constituent data and methodology for arriving at the final calculation. See 5 C.F.R. § 1320.8(d)(1)(iii). (iv) Minimization of burden on respondents -- Respondents have been denied any meaningful opportunity to address this issue for the reasons discussed above. See 5 C.F.R. § 1320.8(d)(1)(iv); see also 5 C.F.R. § 1320.11(a), incorporating by reference § 1320.8(d)(1) and (d)(3). 2. Plaintiffs Are Challenging the Mechanism by Which an Agency Makes Substantive Determinations. Where regulations, written guidelines, or unwritten policies by which an agency makes its otherwise nonreviewable substantive determinations are challenged, judicial review is available because the agency is not the final arbiter of the legality of its own procedures. See Traynor v. Turnage, 485 U.S. 535, 543-545 (1988) (holding statute precluding judicial review of decisions of fact and law in connection with veterans benefits determinations did not prevent judicial review of the validity of a regulation governing certain determinations); ParkView Med. Assocs. v. Shalala, 1997 WL 470107 (D.D.C. 1997) (holding that HHS substantive determination governing reclassification of providers was not subject to judicial review, but challenge to the methodology for arriving at the determination was reviewable), aff'd, 158 F.3d 146 (D.C. Cir. 1998).11 Plaintiffs' allegations in this case can be fairly characterized as a challenge to EPA's and OMB's "mechanism" or "policy" for making determinations under the Paperwork Reduction Act. These agencies have effectively carved out, without any legal justification, a new procedure whereby a sponsoring agency such as EPA may evade all meaningful review by submitting a "shell" information collection request to OMB and may obtain clearance of the same without providing prospective respondents and the public notice or opportunity to comment. The Court should not sanction this kind of evasive tactic, which would deprive the PRA of any real effect. 3. Plaintiffs Lack Alternative Remedies. Where there is no other opportunity for a full and fair hearing on the merits before an independent decision maker, courts will grant judicial review despite a preclusion provision that would otherwise apply. Thus, in Samaritan Health Ctr. v. Heckler, 636 F. Supp. 503 (D.D.C. 1985), hospitals providing Medicare services in low income areas sued the Department of Health and Human Services to compel the agency to comply with Congress's directive to promulgate adjustments to the Medicare reimbursement schedule to increase the proportionate reimbursement of institutions providing medical care to underserved populations. In response to HHS's argument that "the Medicare administrative review process is the exclusive remedy available" to challenge HHS's noncompliance, 636 F. Supp. at 510, and despite the fact that the Medicare statute precluded judicial review of benefits or claims determinations, id., this Court held that, because the hospitals' grievance was not cognizable by HHS's administrative review process, judicial review was the only available remedy. Id. at 511 ("section 405(h) does not 'preclude judicial review of claims for which no alternative form of judicial review [is] available'") (quoting National Ass'n of Home Health Agencies v. Schweiker, 690 F.2d 932, 938 (D.C. Cir. 1982), cert. denied, 459 U.S. 1205 (1983)).12 The exception to preclusion established by these precedents applies to the facts of the present lawsuit. Original jurisdiction of this Court is the only available option for independent review of Plaintiffs' allegations that OMB and EPA have violated Plaintiffs' rights under the Paperwork Reduction Act. 4. Defendants' Actions Are in Excess of Their Statutory Authority. Under this exception, a judicial review preclusion provision will not apply to a claim that the Executive Branch has exceeded its authority. This is because preclusion provisions are usually premised on Congress's judgment that, in certain instances, the agency is in the best position to apply a discrete body of law to a limited set of disputes, and that permitting unfettered judicial review would congest the judicial system. When the Executive Branch exceeds its authority by going beyond its limited decisionmaking powers, however, judicial intervention becomes necessary. Thus, in U.S. Chamber of Commerce v. Reich, 74 F.3d 1322, 1324, 1327-28 (D.C. Cir. 1996), the President issued an executive order barring federal contracting with employers who hired permanent replacements during a lawful strike. An association representing employers challenged the executive order on the ground that it violated a provision of the National Labor Relations Act expressly granting employers the right to hire replacement workers. The D.C. Circuit held that even though the federal Procurement Act vests broad discretion in the President to prescribe policies and directives (so that there was an "implied preclusion of judicial review" under the Procurement Act), "non-statutory" judicial review was nevertheless available to challenge the executive order to the extent it violated a provision of another statute. It is noteworthy that in Reich, the government conceded that an exercise of discretion by the Executive Branch is shielded from judicial review only to the extent that such exercise does not violate a statute or the Constitution. 74 F.3d at 1329 ("At oral argument counsel [for the government] relied instead on the more limited notion...that the Procurement Act delegated wide discretion to the President and we were not authorized to review his exercise of that discretion so long as he did not violate a direct prohibition of another statute (or the Constitution)") (emphasis added).13
III. Plaintiffs Have a Private Right of Action to Bring this Suit. Defendants assert that this lawsuit should be dismissed due to the supposed absence of a private right of action under the Paperwork Reduction Act. Plaintiffs, however, do not assert that the PRA supplies a private right of action. Rather, the APA provides Plaintiffs, as aggrieved parties, both a sovereign immunity waiver and a private right of action unless such action is precluded by statute or is not final. 5 U.S.C. §§ 701(a)(1), 702, 704. As discussed in Section II, supra, the present action is not barred by statute; Defendants' actions are also final, as discussed in Section IV, infra. Plaintiffs therefore have a valid private right of action under the APA. Although the existence vel non of a private right of action under the PRA itself has not been considered on the merits by virtually any court, 14 the question is irrelevant to the present lawsuit, because Plaintiffs possess a right of action under the APA. Well settled federal law holds that a suit against a federal agency may be premised upon either: (i) a private right of action expressly or implied conferred by the underlying statute that is the subject matter of the dispute or (ii) the express right of action provided by Congress in the APA. If a right of action exists under either of the two, then the lawsuit may go forward. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 316-17 (1979) (holding that APA provided right of action under which government contractor could seek to enjoin unlawful disclosure by government of certain data, despite absence of a private right of action under the Trade Secrets Act); Harrison v. Bowen, 815 F.2d 1505, 1512 (D.C. Cir. 1987) ("[f]or the district court to have jurisdiction of her...claims, [plaintiff] must rely either upon an implied right of action under the [Civil Service Reform Act] or upon the review provisions of the APA"); Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986) (judicial review potentially available under APA despite lack of a private right of action under the Immigration and Naturalization Act). The "public protection" provision of the PRA, 44 U.S.C. § 3512, which Defendants cite (Def. Mem. at 7-8) is inapplicable here. That provision shields a respondent from enforcement liability for failing to provide data where the requesting agency's form does not display a valid OMB control number. The PRA's notice-and-comment provisions, however, apply to a larger class of individuals -- prospective commenters -- regardless of whether such individuals are respondents. 15 B. The Cases Defendants Cite Are Inapposite. The PRA cases Defendants cite merely address a provision not relevant to this lawsuit, the "public protection" provision of section 3512. None of Defendants' cases holds that the private right of action conferred by the APA is vitiated by PRA section 3507(d)(6) where an agency or OMB has violated the PRA's notice-and-comment or other procedural requirements. In fact, none of the cases even addresses this issue. In Council on Regulatory Info. Management, Inc. v. Department of Labor, 1993 WL 544303 (D.D.C. 1993), the court denied plaintiff's motion for a preliminary injunction, stating,"plaintiff thus far has offered no argument that overcomes defendant's" argument that section 3512 is the only remedial provision in the PRA itself and that section 3512 only provides a defense not a private right of action. Plaintiffs in the instant case, however, do not argue that they have a private right of action under Section 3512 or any other section of the PRA. Instead, Plaintiffs' right of action for EPA's and OMB's violations of the PRA arises under the APA itself. The Council on Regulatory Info. Management court never addressed this argument, nor did it ever address the impact of PRA section 3507(d)(6) on the plaintiffs' APA cause of action. The court ultimately dismissed the plaintiff's claims on standing grounds, without addressing the PRA judicial review issues. Council on Regulatory Info. Management, Inc. v. Department of Labor, D.C. Civ. No. 93-2362 (Mem. Order, Feb. 25, 1994) (Def. Mem. Att. 1). Most importantly, neither this unpublished decision nor the 1993 preliminary injunction opinion reflected a decision on the merits, and the Council case therefore does not create a rule of law with any precedential value. Likewise, in Kennecott Utah Copper Corp. v. Department of Interior, 88 F.3d 1191 (D.C. Cir. 1996), the D.C. Circuit never mentioned the PRA. The court held merely that the Freedom of Information Act did not provide the right of action and relief sought by the plaintiffs. The court declined to rule on the plaintiffs' arguments that the APA and the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, provided the right of action and relief they sought. Id., 88 F.3d at 1203. 16 IV. Defendants' Arguments Regarding Final Agency Action Do Not Support Dismissal. Defendants' argument that there has been no final agency action in this case (Def. Mem. at 11-13) falls flat and should be disregarded. As an initial matter, Plaintiffs' first cause of action, which Defendants ask the Court to dismiss in its entirety, applies to both Defendant agencies. If the Court holds that either agency's action is final, then judicial review under the APA may go forward. As discussed above, both EPA, in its submission of an incomplete ICR to OMB, and OMB, in its assertion of jurisdiction over the ICR and in its issuance of a control number, have taken final action in violation of the PRA and its regulations. With respect to the finality of EPA's action, EPA has given no indication that it intends to resubmit any additional materials for public comment in support of its information collection request. EPA's actions -- and inaction -- with respect to the PRA are therefore final, and Plaintiffs have been harmed by EPA's violation of the PRA procedures. They are now faced with having to comply with a final rule promulgated in violation of the PRA. They have also been denied their statutory right to notice of and comment on a complete ICR. With respect to the finality of OMB's actions, Defendants do not even attempt to explain how OMB's exercise of jurisdiction over the ICR and its issuance of a control number is not final action under the APA .17 No such arguments are apparent. Certainly with respect to its issuance of a control number, at least, OMB's action is the "consummation of the agency's decisionmaking process" and is an action "by which rights or obligations have been determined or from which legal consequences will flow". Bennet v. Spear, 520 U.S. 154, 178 (1997) (as quoted by Defendants, Def. Mem. at 12). OMB's unauthorized assertion of jurisdiction, an interim action taken en route to issuance of the control number, is also final and reviewable. Because OMB's action is final, the APA also explicitly makes the EPA action reviewable, whether the EPA action is termed final or intermediate. Amazingly, at page 12 of their memorandum, Defendants quote the very APA provision that defeats their own argument: 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. Defendants also argue that there is no reviewable action under section 704 because Plaintiffs will have an "adequate remedy in court" "if they are subjected to penalties in the future". Def. Mem. at 12. However, this argument is made only in connection with Defendants' argument over the reviewability of EPA's actions. Moreover, the PRA approval clearly subjects Plaintiffs to a new rule and new administrative burdens and puts them in jeopardy of defending against enforcement action for noncompliance. Finally, the cases Defendants cite (at Def. Mem. 12) do not support their finality argument. Defendants devote considerable discussion, for example, to Greater N.Y. Hosp. Ass'n v. United States, 1999 WL 1021561 (S.D.N.Y. 1999). In that case, a New York district court concluded, "Too much conjecture is required for the court to conclude that [plaintiffs] will suffer injury" as a result of simply being audited by the HHS Office of Inspector General. Id. at *6. The violation of Plaintiffs' rights under the PRA, by contrast, is complete, final, and is not in any way "conjecture".18 Thus, EPA's submission of the incomplete ICR for approval, OMB's assertion of jurisdiction over the incomplete ICR and issuance of a control number, and the denial of Plaintiffs' procedural rights under the PRA are final action, reviewable by this Court. Defendants' finality argument should therefore be disregarded in its entirety. 19 CONCLUSION For the foregoing reasons. Defendants' motion to dismiss should be denied. Respectfully submitted,
___________________________
Attorneys for Plaintiffs Dated: May 25, 2000 OF COUNSEL:
W. Caffey Norman ___________________________________ OF COUNSEL:
LAUREL CELESTE Dated: April 14, 2000 1 If the Court does look beyond the face of the pleadings, then Defendants' 12(b)(1) motion should be reviewed under the same standards as a Rule 56 summary judgment motion. Where a court looks beyond the face of the pleadings to decide a Rule 12(b)(1) motion, the ultimate test is whether a reasonable fact finder could, on the basis of the pleadings submitted by both sides, find that there is jurisdiction. In re Swine Flu Immunization Products Liability Litigation, 880 F.2d 1439 (D.C. Cir. 1989). In making this determination, a court must weigh all the evidence and draw all inferences in a light most favorable to the non-moving party. Center for Nat'l Sec. Studies v. CIA, 711 F.2d 409, 413 (D.C. Cir. 1983). 2 Defendants mistakenly cite to subsection (d)(5). Def. Mem. at 4, 7. 3 In Dole, the Supreme Court upheld the Third Circuit's decision in United Steelworkers of Am. v. Pendergrass, 855 F.2d 108 (3d Cir. 1988), in which the Third Circuit reviewed a claim that OMB had acted in excess of its authority by reviewing a regulatory requirement that did not constitute a "collection of information" within the meaning of the PRA. The Supreme Court affirmed, holding that OMB did not have authority under the PRA to review and countermand agency regulations mandating disclosure to third parties. Dole, supra, 494 U.S. at 32-40. The Dole decision was legislatively overruled on this substantive issue but not on the issue of whether courts could review a private party's challenge to an OMB disapproval under the PRA. The legislative history of the PRA amendments overruling Dole contains no suggestion that Congress believed the Supreme Court's review of this issue was improper or barred. See H.R. CONF. REP. NO. 104-99, 104th Cong., 1st Sess., p. 29 (April 3, 1995). 4 In Action Alliance, the D.C. Circuit reviewed private party claims regarding the scope of OMB's authority under the PRA. There was some question in Action Alliance as to whether the private plaintiffs' claims were based on the PRA or its predecessor statute, the Federal Reports Act of 1942. The D.C. Circuit decided "to sidestep all this" by addressing the private parties' claims under the PRA, while also noting "the congruence of the superseded Records Act." Id. at 79. 5 The cases Defendants cite (Def. Mem. at 10) do not support their sovereign immunity action analysis. Heckler v. Chaney, 470 U.S. 821 (1985), involved an agency's decision not to pursue an enforcement action, a situation bearing no relationship to the facts of this case. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092-93 (D.C. Cir. 1996), actually recognized the availability of APA review -- in the face of a preclusion provision -- where plaintiffs alleged that a receiver of a failed national bank had been improperly appointed. 6 Defendants' reference to the statement of Senator Danforth during a floor debate on the 1980 predecessor PRA (Def. Mem. at 8) does not support their judicial preclusion argument. See Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) ("[t]he remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history."). Moreover, Senator Danforth did not even state his individual opinion that the PRA bars the type of claims asserted by Plaintiffs in this case. 7 See also Anthony v. OPM, 58 F.3d 620 (Fed. Cir. 1995) (statute precluding judicial review of agency's "factual findings and conclusions regarding the medical evidence" did not preclude review of whether there had been "a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination"); see also K. Davis, 3 Administrative Law Treatise § 17.4, p. 116 (3d ed. 1994) ("Courts also assist the politically accountable branches in their efforts to limit administrative discretion by enforcing procedural policy decisions that are made through statutory enactment."). 8 The structure of section 3507(a) makes clear that public comment on these issues, as well as other procedural requirements under subsection (a)(1), must occur before OMB considers the merits of a clearance package under subsection (a)(2), which in turn must occur before a control number is issued under subsection (a)(3). 9 A provision in a proposed regulation cannot constitute a "collection of information" unless it contains requirements that would call for a specific group of respondents to maintain records or to report data to a federal agency or a third party. This concept is inherent in the statutory and regulatory definitions, under which a "collection of information" must impose a legal duty to maintain records or report information. See 44 U.S.C. § 3502(3); 5 C.F.R. § 1320.3(c). 10 See also McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494, 497 (1991) (provision in the Immigration and Nationality Act expressly precluding judicial review of individual amnesty determinations by INS did not apply to broad "pattern and practice challenges" to the manner in which the INS made those otherwise nonreviewable determinations); National Comm. to Preserve Social Sec. v. Bowen, 735 F. Supp. 1069, 1073 (D.D.C. 1990) (holding that provision in Social Security Act precluding judicial review of benefits decisions inapplicable to declaratory and injunctive challenge to agency's procedure for determining individual benefits); Esch v. Yuetter, 876 F.2d 976, 991 (D.C. Cir. 1989) (holding that provision in the Agricultural Act of 1949 precluding judicial review of Department of Agriculture's price support determinations with respect to individual farms applied only to determinations made "in conformity with the applicable regulations," so that allegations of procedural irregularities remained subject to APA review). 11 See also Universal Health Servs. of McAllen, Inc. v. Sullivan, 770 F. Supp. 704, 710 (D.D.C. 1991) (recognizing distinction between individual determinations under Medicare Act Part B, which were not subject to judicial review, and "collateral challenges" to regulatory guidelines governing the determination process, for which judicial review remained available), aff'd, 978 F.2d 745 (D.C. Cir. 1992); Sierra-Nevada Memorial Miners Hosps., Inc. v. HHS, 1993 WL 841091 at 12 (D.D.C. 1991) (applying the McAllen rule to "unpublished and unwritten polic[ies]"). 12 See also Leedom v. Kyne, supra, 358 U.S. at 190 ("[h]ere,... 'absence of jurisdiction of the federal courts' would mean 'a sacrifice or obliteration of a right which Congress has given professional employees, for there is no other means within their control...to protect and enforce that right"); McNary, supra, 498 U.S. at 496, (allowing judicial review of challenges to the manner in which INS made deportation and exclusion determinations based in part on reasoning that, absent judicial review, there would be no means to challenge the INS's allegedly unlawful practices); National Ass'n of Patients on Hemodialysis & Transplantation, Inc. v. Heckler, 588 F. Supp. 1108, 1117-18 (D.D.C. 1984) (holding preclusion provision in the Social Security Act did not bar challenge to regulation where no other form of review was available). 13 See also Leedom v. Kyne, supra, 358 U.S. at 188-89 (reviewability of "attempted exercise of power [by the agency] that had been specifically withheld [by Congress]"); COMSAT Corp., supra, 114 F.3d at 224 (no preclusion where agency "has acted outside the scope of its authority"); James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1093 (D.C. Cir. 1996) ("[w]e thus read section 1821(j) to prevent courts from interfering with the FDIC only when the agency acts within the scope of its authorized powers") (cited by Defendants, Def. Mem. at 10). 14 See section III.B., infra, for discussion of cases Defendants cite in this regard. 15 Defendants half-heartedly raise standing as a possible defense in two footnotes of their brief. (Def. Mem. at pp. 8-9 n. 1, 11 n. 4). Plaintiffs here satisfy both constitutional and prudential standing requirements because they are (1) TRI respondents faced with increased monitoring, recordkeeping and other administrative costs as a result of the new EPA dioxins and furans reporting rule, and (2) persons directly affected by agency action who have been denied their statutory rights to participate in the administrative process. 16 The other cases Defendants cite are also unavailing. In Saco River Cellular, Inc. v. FCC, 133 F.3d 25 (D.C. Cir.), cert. denied, Northeast Cellular Tel. Co. v. FCC, 525 U.S. 813 (1998), the FCC had rejected an application to provide cellular telephone service due to the applicant's failure to comply with a reporting requirement in the application that lacked a control number. When the Paperwork Reduction Act violation was brought to FCC's attention, FCC reversed itself and allowed the application to go forward. Saco River simply does not address the question of judicial review preclusion. 17 Indeed, the heading for this section of Defendants' supporting memorandum reads, "EPA's Submission of the ICR to OMB Is Not Final Agency Action Subject to Review under the APA." Def. Mem. at 11. 18 Defendants' other case authority offers little support for their finality arguments. In Franklin v. Massachusetts, 505 U.S. 788, 797 (1992), appeal dismissed, Massachusetts v. Franklin, 505 U.S. 1215 (1992), the Court explained that an action is final, "when an agency completes its decision making process and the result of that process is one that will directly affect the parties." Here, the decision of EPA to submit an incomplete ICR, OMB's decision to act on that submission without first obtaining jurisdiction, and OMB's issuance of a control number all "directly affected" Plaintiffs' ability to participate in the administrative process as provided under the PRA. 19 Both OMB's unauthorized assertion of jurisdiction over the ICR and its issuance of a control number are final actions and defeat Defendants' finality argument with respect to OMB. Under Defendants' own interpretation of the judicial preclusion provision, both of these actions are judicially reviewable. See Section II.A., supra. In addition, OMB's approval of the ICR is also final agency action and is itself reviewable for the reasons discussed in Section II. |