Ruminations on dissemination: Limits on administrative and judicial review under the Information Quality Act

Catholic University Law Review

Volumn 55, Issue 1, 2005, Pages 59-79

  Johnson, Stephen M ^a,b  

^a Mercer University

^b VILLANOVA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 49549125434     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (119)

1. See U.S. Chamber of Commerce, Data Quality, http://www.uschamber. com/issues/index/regulatory/ataquality.htm (last visited Nov. 17, 2005).
2. THOMAS O. MCGARITY ET AL., CTR. FOR PROGRESSIVE REGULATION, PUBL'N NO. 502, TRUTH AND SCIENCE BETRAYED: THE CASES AGAINST THE INFORMATION QUALITY ACT 1 (2005), http://www.progressiveregulation.org/articles/iqa.pdf.
3. Treasury and General Government Appropriations Act, 2001, Pub. L. No. 106-554 app. C, § 515, 114 Stat. 2763A-125, 2763A-153 to 2763A-154 (codified at 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines)).
4. See MCGARITY ET AL., supra note 2, at 10-12; Thomas O. McGarity, Our Science Is Sound Science and Their Science Is Junk Science: Science-Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities, 52 U. KAN. L. REV. 897, 935 (2004);
5. Sidney A. Shapiro, The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider, 28 WILLIAM & MARY ENVTL. L. & POL'Y REV. 339, 364 (2004).
6. See John D. Echeverria & Julie B. Kaplan, Poisonous Procedural "Reform": In Defense of Environmental Right-To-Know, 12 KAN. J.L. & PUB. POL'Y 579, 602 (2003); McGarity, supra note 4, at 935; Shapiro, supra note 4, at 358-61.
7. See Echeverria & Kaplan, supra note 5, at 603-04; Shapiro, supra note 4, at 350; Wendy E. Wagner, Importing Daubert to Administrative Agencies Through the Information Quality Act, 12 J.L. & POL'Y 589, 607-12 (2004).
8. See MCGARITY ET AL., supra note 2, at 14-20; Shapiro, supra note 4, at 350-57.
9. See, e.g., Petition from Christopher C. Horner, Counsel, Competitive Enterprise Inst., to Nat'l Oceanic & Atmospheric Admin., Request for Correction of Information: Petition To Cease Dissemination of the National Assessment on Climate Change, Pursuant to the Federal Data Quality Act 6 (Feb. 19, 2003), http://www.cei.org/pdf/3374.pdf. The Competitive Enterprise Institute sent a similar request to the Environmental Protection Agency (EPA). See Petition from Christopher C. Horner, Senior Fellow, Competitive Enterprise Inst., to U.S. Envtl. Prot. Agency, Request for Response to/Renewal of Federal Data Quality Act Petition Against Further Dissemination of "Climate Action Report 2002," (Feb. 10, 2003), http://www.cei.org/gencon/027,03375.cfm.
10. See, e.g., OMB Watch, Data Quality Challenge Helps Bump Species from Consideration for Endangered List (Aug. 9, 2004), http://www.ombwatch.org/ article/articleview/2328. In March 2003 the United States Fish and Wildlife Service received a petition from an Air Force ecologist challenging the scientific data that the agency was relying on to support the proposed listing of slickspot peppergrass as an endangered plant. See id. After receiving the challenge, the agency withdrew its proposed rule that would have listed the grass as an endangered species. See Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule, 69 Fed. Reg. 3094 (Jan. 22, 2004).
11. See, e.g., Challenge of Partnership for the West Pursuant to the Information Quality Act at 1-2, P'ship for the West v. U.S. Dep't of the Interior (Dep't of the Interior Sept. 23, 2004), available at http://www.fws.gov/informationquality/topics/FY2004/SageGrouse/ Complaint23sep2004.pdf. In September 2003, the Partnership for the West filed an Information Quality Act correction request with the United States Fish and Wildlife Service to challenge the studies that the agency was relying on in proposing to list the greater sage grouse as an endangered species. See id. After the challenge, the agency determined that the sage grouse should not be listed as endangered. See OMB Watch, Sage Grouse Recommendation Follows Data Quality Act Challenge (Dec. 13, 2004), http://www.ombwatch.org/ article/articleview/2568.
12. See Request for Correction of Information Contained in the Atrazine Environmental Risk Assessment, Ctr. for Regulatory Effectiveness v. U.S. Envtl. Prot. Agency, No. OPP - 34237A (Envtl. Prot. Agency Nov. 25, 2002), available at http://www.epa.gov/quality/informationguidelines/documents/ 2807.pdf. When the EPA was considering re-registration of the herbicide, the Center for Regulatory Effectiveness filed a petition to challenge studies that the agency was relying on because some other industry-funded studies conflicted with those studies. See id. The EPA may delay action on the re-registration request while it conducts further studies in light of the petition. See MCGARITY ET AL., supra note 2, at 14-15.
13. See Petition from Ctr. for Regulatory Effectiveness & Jim J. Tozzi, to Dep't of Agriculture, Request for Correction of Information Contained in a World Health Organization Report (Sept. 8, 2003), http://www.thecre.com/ pdf/20030908_correction.pdf.
14. See MCGARITY ET AL., supra note 2, at 13.
15. See, e.g., James W. Conrad, Jr., The Information Quality Act - Antiregulatory Costs of Mythic Proportions?, 12 KAN. J.L. & PUB. POL'Y 521, 538-45 (2003); Shapiro, supra note 4, at 363-74.
16. 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines).
17. Id.
18. Id.
19. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452, 8460 (Feb. 22, 2002). Agency "initiated" information includes information that the agency prepared as well as information prepared by an outside party that the agency distributes "in a manner that reasonably suggests that the agency agrees with the information." Id. at 8454. Agency "sponsored" information includes "situations where an agency has directed a third-party to disseminate information, or where the agency has the authority to review and approve the information before release." Id.
20. See id. at 8452. Dissemination does not[, however,] include distribution limited to government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the Freedom of Information Act, the Privacy Act, the Federal Advisory Committee Act or other similar law. This definition also does not include distribution limited to correspondence with individuals or persons, press releases, archival records, public filings, subpoenas or adjudicative processes. Id. at 8460.
21. Id. at 8460.
22. Id. at 8459-60.
23. Id. at 8460.
24. Id. at 8452.
25. Id. at 8459. In the preamble to the guidelines, OMB noted that since "many agencies already have a process in place to respond to public concerns, it is not necessarily OMB's intent to require these agencies to establish a new or different process." Id. at 8458. The agency should specify, in the procedures, the time period in which corrections will be made and the agency must notify persons who seek corrections whether the agency changes the information. Id. at 8459.
26. Id. at 8459. Once again, though, the preamble to OMB guidelines suggests that preexisting procedures that agencies use to respond to public concern could serve the administrative appeal function required by the guidelines as long as affected parties could raise their data quality claims through those procedures. Id.
27. See id. at 8458.
28. See Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664, 2664 (Jan. 14, 2005). Although the Information Quality Act does not explicitly require agencies to conduct external peer review on studies used by agencies, OMB cites the Act as its authority for the peer review requirements. Id. at 2666.
29. Id. at 2667-71. The bulletin set standards for peer review of "influential scientific information," id., and more stringent standards for "highly influential scientific assessments," id. at 2671-72, 2675-76. "'Influential scientific information' means scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions." Id. at 2667. Scientific assessments are "'highly influential' if the agency or [OMB] . . . determine[] that the dissemination could have a potential impact of more than $500 million in any one year . . . or . . . is novel, controversial, or precedent-setting, or has significant interagency interest." Id. at 2671.
30. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. at 8454.
31. See Office of Mgmt. & Budget, Information Quality Guidelines - Principles and Model Language (Sept. 5, 2002), http://www.eeoc.gov/policy/ guidelines/pmcmemo.pdf. OMB guidance suggests that "[w]here existing public comment procedures - for rulemakings, adjudications, other agency actions or information products - provide well-established procedural safeguards that allow affected persons to contest information quality on a timely basis, agencies may use those procedures to respond to information quality complaints." Id. at 1.
32. Id. at 1.
33. See id.
34. See, e.g., Shapiro, supra note 4, at 364.
35. 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines).
36. Id.
37. Id.
38. See Shapiro, supra note 4, at 364 (quoting CAMBRIDGE ADVANCED LEARNER'S DICTIONARY, http://dictionary.cambridge.org).
39. Id.
40. See MCGARITY ET AL., supra note 2, at 2.
41. In addition, in interpreting the term disseminate, Professor Shapiro focuses on the fact that the dictionary that he selected defines disseminate as spreading out information to "a lot of people." See Shapiro, supra note 4, at 364. Several other dictionaries do not limit dissemination to distribution to a lot of people. See, e.g., Merriam-Webster Online Dictionary, Definition of Dissemination, http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=disseminate (last visited Nov. 19, 2005); MSN Encarta Online Dictionary, Disseminate, http://encarta.msn.com/dictionary_/disseminate.html (last visited Nov. 19, 2005). In fact, The American Heritage Dictionary defines disseminate as promulgate, a term frequently used to refer to the rulemaking process. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2000), http://www.bartleby. com/61/72/D0287200.html.
42. See Clinton v. City of New York, 524 U.S. 417, 429 (1998) (citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982)); Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892).
43. See Conrad, supra note 14, at 541.
44. See 5 U.S.C. § 553(c) (2000).
45. See id. § 702. When reviewing a rule issued by an agency, courts will apply the judicial review standards of the Administrative Procedure Act (APA). See id. §§ 701-706. Under the judicial review procedures of the APA, a court can set aside agency actions if they are arbitrary and capricious or if the agency does not follow procedures required by law. See id. § 706. Courts have interpreted the APA's requirement that agencies must provide a "concise general statement of . . . basis and purpose" of a final rule, id. § 553(c), to mean that agencies must address and rationally respond to the public comments that they receive on a proposed rule. See, e.g., Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561, 1566 (11th Cir. 1985); United States v. Nova Scotia Food Prods., 568 F.2d 240, 252-53 (2d Cir. 1977).
46. 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines).
47. Id.
48. See Shapiro, supra note 4, at 365-66.
49. Id. at 366-67.
50. E-Government Act of 2002, Pub. L. No. 107-347, 166 Stat. 2899 (codified as amended in scattered sections of 44 U.S.C).
51. See 44 U.S.C.A. § 3501 note (West Supp. 2005) (Federal Management and Promotion of Electronic Government Services). The E-Government Act of 2002 requires the federal government to establish a portal to centralize access to government information on the Internet and requires federal agencies to accept electronic submissions in rulemaking, create electronic dockets for rulemaking, and to make information that must be published in the Federal Register available on the Internet. Id. The Internet portal required by the Act was launched shortly after the Act became effective and is now accessible online. See FirstGov Homepage, http://www.firstgov.gov (last visited Nov. 19, 2005).
52. See Regulations.gov, Answers to Frequently Asked Questions, http://www.regulations.gov/fdmspublic-bld61/component/main (follow "FAQ" hyperlink) (last visited Nov. 20, 2005).
53. See 5 U.S.C. § 553(c) (2000); 44 U.S.C.A. § 3501 note (West Supp. 2005) (Federal Management and Promotion of Electronic Government Services).
54. See Conrad, supra note 14, at 542-43.
55. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Dissemination by Federal Agencies, 67 Fed. Reg. 8452, 8458 (Feb. 22, 2002).
56. See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 66 Fed. Reg. 49,718, 49,721 (Sept. 28, 2001).
57. See 5 U.S.C. § 533(c).
58. The APA authorizes courts to overturn agency actions that do not comply with "procedure required by law." See id. § 706(2)(D). If the guidelines had the force of law, courts could set aside agency action simply because the agency did not comply with the guidelines. Id.
59. See Salt Inst. v. Thompson, 345 F. Supp. 2d 589, 601 (E.D. Va. 2004); In re Operation of the Mo. River Sys. Litig., 363 F. Supp. 2d 1145, 1174-75 (D. Minn. 2004), aff'd, No. 04-2737, 2005 U.S. App. LEXIS 17224 (8th Cir. 2005); Conrad, supra note 14, at 538-39.
60. See, e.g., OFFICE OF ENVTL. INFO., U.S. ENVTL. PROT. AGENCY, EPA/260R-02-008, GUIDELINES FOR ENSURING AND MAXIMIZING THE QUALITY, OBJECTIVITY, UTILITY, AND INTEGRITY, OF INFORMATION DISSEMINATED BY THE ENVIRONMENTAL PROTECTION AGENCY 41-43 (2002), available at http://www.epa.gov/quality/informationguidelines/documents/ EPA_InfoQualityGuidelines.pdf; OFFICE OF THE CHIEF INFO. OFFICER, U.S. DEP'T OF ENERGY, 6450-01-P, FINAL REPORT IMPLEMENTING OFFICE OF MANAGEMENT AND BUDGET INFORMATION DISSEMINATION QUALITY GUIDELINES 19, available at http://cio.doe.gov/informationquality/finalinfoqualityguidelines.pdf.
61. See Complaint at 13-20, Competitive Enter. Inst. v. Bush, No. 03-CV-1670-RJL (D.D.C. Aug. 6, 2003).
62. See 5 U.S.C. § 704 (2000).
63. Id. § 701(a).
64. 28 U.S.C. § 1331 (2000). The general federal question statute provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. While this jurisdictional statute does not waive the government's sovereign immunity, the APA waives sovereign immunity for suits against the United States "seeking relief other than money damages and stating a claim that an agency or officer or employee thereof acted or failed to act in an official capacity or under color of legal authority." 5 U.S.C. § 702.
65. See 5 U.S.C §§ 701(a), 704. Plaintiffs also need to demonstrate that they have standing to sue. See U.S. CONST, art. III, § 2.
66. See infra Part III.A.
67. See 5 U.S.C. § 701(a)(2); infra Part III.B. While judicial review would be available, OMB Information Quality Guidelines and OMB Peer Review Bulletin are merely guidelines, rather than regulations, and do not have the force of law. Consequently, neither the information quality guidelines nor the peer review guidelines are entitled to Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 229 (2001); Chevron U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). Although a court might ultimately determine that an agency's decision to use or disclose information that did not meet the standards of the information quality or peer review guidelines was arbitrary and capricious or otherwise violated the Information Quality Act, noncompliance with the guidelines should not, in and of itself, constitute a basis for invalidating the agency's action.
68. See supra Part II.
69. See 5 U.S.C. § 551(13). Agency action is defined in the APA as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." Id. When an agency changes information in a report, database, information product, or as part of a rulemaking in response to an information correction request, the agency's response will likely constitute "relief" under the APA, which is defined as "the whole or a part of an agency . . . (B) recognition of a claim . . . or (C) taking of other action on the application or petition of, and beneficial to, a person," id. § 551(11), and, therefore, constitute agency action, see id. § 551(13). When an agency refuses to change information in response to an information correction request, the agency decision will normally be issued as an "order" under the APA, see id. § 551(6), and, therefore, constitute agency action, see id. § 551(13). Even if it were not issued as an order, it would likely constitute denial of "relief," which constitutes agency action. Id. § 551(13). Finally, when an agency fails to respond to an information correction request, the "failure to act" may constitute agency action under the APA. See id. The Supreme Court recently clarified that the failure to act in the APA's definition of agency action refers to a discrete action, such as a failure to issue a rule, order, license, sanction or other relief. See Norton v. S. Utah Wilderness Alliance, 124 S. Ct. 2373, 2378-79 (2004). Since OMB guidelines require agencies to establish procedures for responding to information correction requests in a timely manner, and many agency guidelines require responses within a specified time period, it is likely that a court would find that an agency's failure to respond to a correction request within the time period specified in the agency's Information Quality Act guidelines constitutes a failure to act and, therefore, is an agency action under the APA.
70. There are other actions that agencies may take, or fail to take, under the Information Quality Act that may be the subject of judicial challenges. For instance, the statute requires agencies to issue Information Quality Act guidelines and to establish correction procedures. See 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines). In addition, OMB's Information Quality Act Guidelines require agencies to establish pre-dissemination review procedures and to submit annual reports to OMB regarding compliance with the guidelines. See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452, 8458-60 (Feb. 22, 2002). Since these requirements have not generated significant judicial challenges, this Article focuses primarily on the reviewability of agency responses to information correction requests, which have sparked litigation. OMB's recent peer review guidelines, Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664, 2664 (Jan. 14, 2005), are also likely to spark litigation, but, for reasons discussed below, persons who challenge an agency's failure to comply with the peer review guidelines are likely to have a difficult time demonstrating that the agency's failure to comply with the guidelines has a sufficiently direct and immediate effect on the challenger to constitute final agency action.
71. See Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citing Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948), and Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)); Dalton v. Specter, 511 U.S. 462, 469-70 (1994); Franklin v. Massachusetts, 505 U.S. 788, 798 (1992); Abbott Labs, v. Gardner, 387 U.S. 136, 152 (1967). In Bennett, the Court held that "[f]irst, the action must mark the 'consummation' of the agency's decisionmaking process - it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'" Bennett, 520 U.S. at 177-78 (citation omitted) (quoting Port of Boston, 400 U.S. at 71).
72. See, e.g., Flue-Cured Tobacco Coop. Stabilization Corp. v. U. S. Envtl. Prot. Agency, 313 F.3d 852, 859-61 (4th Cir. 2002); Indus. Safety Equip. Ass'n v. Envtl. Prot. Agency, 837 F.2d 1115, 1119 (D.C. Cir. 1988); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm'n, 710 F.2d 1165, 1176 (6th Cir. 1983).
73. See Flue-Cured Tobacco, 313 F.3d at 860-61; Indus. Safety Equip. Ass'n, 837 F.2d at 1121. In the Flue-Cured Tobacco case, the Fourth Circuit held that an EPA report that classified environmental tobacco smoke as a carcinogen was not a final agency action, even though other agencies imposed additional restrictions on smoking because of the findings in the report, and even though the report might lead private groups to impose tobacco related restrictions. Flue-Cured Tobacco, 313 F.3d at 860-61. The court stressed that the actions of other agencies and the public were "independent responses and choices of third parties" and were not "the result of legal rights or consequences created by the report." Id. at 861. The court noted that if it "were to adopt the position that agency actions producing only pressures on third parties were reviewable under the APA, then almost any agency policy or publication issued by the government would be subject to judicial review." Id.
74. 837 F.2d 1115 (D.C. Cir. 1988).
75. Id. at 1119 (alterations in original) (quoting 5 U.S.C. § 551(10) (2000)). However, the D.C. Circuit concluded that the EPA asbestos guidance that the challengers sought to overturn in that case was not reviewable because the EPA did not intend to penalize the challengers when it issued the guidance. Id.
76. Cf. Flue-Cured Tobacco, 313 F.3d at 860-61. The challenges to information correction requests in rulemaking will not be reviewable regardless of whether the agency action is a grant, denial, or failure to respond to a request and regardless of whether the challenge is brought by the person requesting the correction or a third party. See discussion supra notes 68-69 and accompanying text.
77. See Bennett, 520 U.S. at 177-78 (determining that agency action that is tentative or interlocutory is not final agency action); Gardner, 387 U.S. at 151 (asserting that agency action is not final until the agency has concluded its decision-making process).
78. Challengers could argue that the agency's correction or failure to correct information that the agency relied upon in the rulemaking was arbitrary and capricious, 5 U.S.C. § 706(2)(A) (2000), or that the decision violated the Information Quality Act, id. § 706(2)(C).
79. See, e.g., Flue-Cured Tobacco, 313 F.3d at 859-61. In most cases, an agency's disclosure of information in a report, database, or other information product will not trigger other regulatory effects or create any rights or obligations for businesses or regulated entities. While the disclosure may encourage other agencies or third parties to take some action against businesses or regulated entities, those effects will be indirect. See supra note 72 and accompanying text.
80. See supra note 70.
81. See supra notes 71-72 and accompanying text. Although an agency's decision to correct information to suggest that products or activities are less harmful than the agency originally suggested may encourage other agencies to loosen regulatory controls over the products or activities, or may encourage enforcement officials, businesses, or the public to focus less attention on the potential harms caused by those products or activities, those actions of agencies or third parties are indirect effects of the agency's action. See supra notes 71-72 and accompanying text.
82. See infra note 84 and accompanying text.
83. See supra notes 71-72 and accompanying text.
84. 345 F. Supp. 2d 589 (E.D. Va. 2004).
85. Id. at 602. In that case, the Salt Institute also argued that the National Heart, Lung and Blood Institute violated the Information Quality Act when it failed to disclose data underlying an experiment that one of the agency's grantees conducted. Id. at 593. The court determined that the plaintiffs lacked standing to bring that challenge, but the court did not directly address whether the failure to disclose data constituted a final agency action that would be reviewable under the APA. Id. at 598-602.
86. See Indus. Safety Equip. Ass'n, Inc. v. Envtl. Prot. Agency, 837 F.2d 1115, 1119 (D.C. Cir. 1988). A court that adopts the approach of Industrial Safety Equipment Ass'n might conclude that an agency's disclosure of information regarding the health or environmental harm that could be caused by a business' products or activities constitutes a reviewable sanction if the agency intended to penalize the business and the disclosure caused "'destruction . . . of property.'" Id. (alteration in original) (quoting 5 U.S.C. § 551(10)).
87. 5 U.S.C. § 701(a) (2000).
88. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (emphasis added) (quoting S. REP. NO. 79-752, at 26 (1945)).
89. 470 U.S. 821 (1985).
90. Id. at 830.
91. See Salt Inst., 345 F. Supp. 2d at 602-03; In re Operation of the Mo. River Sys. Litig., 363 F. Supp. 2d 1145, 1174-75 (D. Minn. 2004).
92. 363 F. Supp. 2d 1145 (D. Minn. 2004).
93. Id. at 1174-75. The Flood Control Act of 1944 requires the U.S. Army Corps of Engineers to prepare and periodically revise a plan for management of the Missouri River and its reservoirs. Id. at 1150. Several businesses and business coalitions sued the Corps when the agency did not provide them with information that the businesses requested under the Information Quality Act regarding the science and data that the agency relied upon when it revised the management plan. Id. at 1174.
94. Id. at 1174-75.
95. Id.
96. Id. at 1175.
97. 345 F. Supp. 2d 589 (E.D. Va. 2004).
98. Id. at 602-03.
99. Id. at 602.
100. See id. at 602-03. The court noted that "guidelines provide that '[a]gencies, in making their determination of whether or not to correct information, may reject claims made in bad faith or without justification, and are required to undertake only the degree of correction that they conclude is appropriate for the nature and timeliness of the information involved.'" Id. at 602 (alteration in original) (quoting Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452, 8458 (Feb. 22, 2002)).
101. 314 F.3d 633 (D.C. Cir. 2003).
102. See Salt Inst., 345 F. Supp. 2d at 602 (citing Steenholdt, 314 F.3d at 638).
103. Steenholdt, 314 F.3d at 638-39 (quoting 49 U.S.C. § 44.702(d)(2) (1997)). The regulations promulgated under the Act also gave the Federal Aviation Administration (FAA) administrator unlimited discretion, in that they allowed the administrator to rescind a designation "for any reason the Administration considers appropriate." 14 C.F.R. § 183.15(d)(6) (2005). However, the regulations merely echoed the authority that the statute provided to the administrator. See 49 U.S.C. § 44,702(d)(2) (2000). Thus, the Salt Institute court misread the Steenholdt decision when the court suggested that a broad delegation of authority in regulations is sufficient to render agency action nonreviewable as committed to agency discretion. See Salt Inst., 345 F. Supp. 2d at 602 (quoting 5 U.S.C. § 701(a)(2) (2000)).
104. 401 U.S. 402 (1971).
105. Id. at 410. As the Court noted in Heckler v. Chaney, 470 U.S. 821 (1985), since the APA authorizes courts to overturn agency actions when an agency abuses its discretion, discretionary agency actions are generally reviewable. Id. at 829-30.
106. 470 U.S. 821 (1985).
107. Id. at 831-32. However, the Court held that an agency's exercise of enforcement discretion may be reviewable when a statute provides "guidelines for the agency to follow in exercising its enforcement powers." Id. at 833.
108. 486 U.S. 592 (1988).
109. Id. at 600 (quoting 50 U.S.C. § 403(c) (1982)). The Court noted that the statute allowed termination of an agency employee "whenever the Director 'shall deem such termination necessary or advisable in the interests of the United States' . . ., not simply when the dismissal is necessary or advisable to those interests." Id. (quoting 50 U.S.C. § 403(c) (1982)). The court suggested that the statutory language "exude[d] deference to the Director, and appear[ed] to us to foreclose the application of any meaningful judicial standard of review." Id.
110. See id. at 601.
111. 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines). The Act requires OMB to issue guidelines to "Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information . . . disseminated by Federal agencies in fulfillment of the purposes and provisions of . . . the Paperwork Reduction Act." Id. It also requires federal agencies to issue guidelines "ensuring and maximizing the quality, objectivity, utility, and integrity of information . . . disseminated by the agency." Id.
112. See Webster, 486 U.S. at 601.
113. The Salt Institute court incorrectly relied upon the D.C. Circuit's Steenholdt decision to suggest that an agency's action may be unreviewable when the agency is acting pursuant to regulations that give the agency virtually unlimited authority. See Salt Inst. v. Thompson, 345 F. Supp. 2d 589, 602 (E.D. Va. 2004); supra notes 101-02 and accompanying text. While agencies can limit, by regulation, authority delegated to them by Congress, they cannot expand their authority by regulation. See 5 U.S.C. § 706(2)(c) (2000). Thus, if a statute provides standards for an agency to use when making a decision, but the agency, by regulation, broadens its discretion to make that decision, a reviewing court should hold that the regulation is ultra vires, rather than holding that the agency action is unreviewable. See id.
114. See, e.g., Webster, 486 U.S. at 606-10 (Scalia, J., dissenting); Kenneth Culp Davis, "No Law To Apply," 25 SAN DIEGO L. REV. 1, 9-11 (1988); Ronald M. Levin, Understanding Unreview ability in Administrative Law, 74 MINN. L. REV. 689, 734 (1990). Like Justice Scalia, Justice O'Connor wrote separately in Webster v. Doe. See Webster, 486 U.S. at 605 (O'Connor, J., concurring in part and dissenting in part). In her concurring and dissenting opinion, Justice O'Connor joined in the Court's holding that the CIA director's employment decision was unreviewable, but she wrote that she did "not understand the Court to say that the [committed to agency discretion] exception . . . is necessarily or fully defined by reference to statutes 'drawn in such broad terms that in a given case there is no law to apply.'" Id. (quoting Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 410 (1971)). Similarly, Justice Scalia, in his dissenting opinion, wrote that "'commit[ment] to agency discretion by law' includes, but is not limited to, situations in which there is 'no law to apply.'" Id. at 607 (Scalia, J., dissenting) (alteration in original).
115. See Webster, 486 U.S. at 608-10 (Scalia, J., dissenting). In describing the approach that the Webster majority took, and other courts take, regarding the committed to agency discretion exemption, Justice Scalia suggested that "although the Court recites the test it does not really apply it. Like other opinions relying upon it, this one essentially announces the test, declares victory and moves on." Id. at 610. The Supreme Court implicitly relied upon the common law of unreviewability previously in Heckler v. Chaney, 470 U.S. 821, 832 (1985).
116. Chaney, 470 U.S. at 831. The Court stressed that agencies must balance a number of factors within their expertise when deciding whether to bring an enforcement action, including whether a violation has occurred, . . . whether agency resources are best spent on [one] violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and . . . whether the agency has enough resources to undertake the action at all. Id. The Court noted that an agency's exercise of enforcement discretion was traditionally unreviewable and that "the APA did not significantly alter the 'common law' of judicial review of agency action." Id. at 832.
117. Webster, 486 U.S. at 601. The Court stressed that "the Nation's security, depend[s] in large measure on the reliability and trustworthiness of the [CIA's] employees" and that there is an "overriding need for ensuring integrity in the Agency" that prompted Congress to give the CIA director the broad discretion to dismiss employees whenever the director deems that it is necessary or advisable in the interests of the United States. Id.
118. See Steenholdt v. Fed. Aviation Admin., 314 F.3d 633, 638-39 (D.C. Cir. 2003). The Steenholdt court simply announced the "no law to apply" test, declared victory, and moved on. Id.
119. See 44 U.S.C. § 3516 note (2000) (Policy and Procedural Guidelines); Webster, 486 U.S. at 608-09 (Scalia, J., dissenting).