Enforceable Right to Challenge Agency Data Asserted in Lawsuit Heard by Ninth Circuit

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By Robert Iafolla

March 18 — A federal appeals court is considering a case with the potential to open up a new avenue for legal attacks against the science used by agencies to justify environmental, health and safety rules, regulatory scholars told Bloomberg BNA.

Should the U.S. Court of Appeals for the Ninth Circuit rule that the Information Quality Act—a measure designed to guarantee the integrity of information issued by agencies—creates judicially enforceable rights, then it could allow opponents of new regulationsto interrupt an ongoing rulemaking process with subsidiary legal challenges, some scholars said.

“They want to use it as an anti-regulatory tool,” Sidney Shapiro, an administrative law professor at Wake Forest University, told Bloomberg BNA March 17. “What they want to do is say to the agency, ‘You disseminated data in a notice of proposed rulemaking, and it’s wrong and you need to correct it.’ ”

The Information Quality Act, also known as the Data Quality Act, first emerged as a two-paragraph rider in an appropriations bill in 2001. The act calls on the White House Office of Management and Budget to require agencies to set up a process to ensure the quality of information they disseminate. The issue of whether the Information Quality Act carries some private right of action has been rejected by a number of courts, including the U.S. Court of Appeals for the Fourth Circuit (Salt Institute v. Leavitt, 440 F.3d 156 (2006)).

Ninth Circuit Arguments.

The Ninth Circuit case arises out of former drug company executive W. Scott Harkonen’s lawsuit challenging the accuracy of a 2009 Justice Department press release describing the conduct that led to his conviction for wire fraud (Harkonen v. Justice Department, 9th Cir., No. 13-15197, oral arguments 3/9/15).

During March 9 oral arguments before the Ninth Circuit panel, Harkonen’s attorney said the Information Quality Act creates a judicially enforceable right. Thus, if an agency rejects a petitioner’s bid to correct information, the petitioner could sue under the Administrative Procedure Act to enforce the right to quality information, Mark E. Haddad, a partner with Sidley Austin LLP, told the panel.

The judges didn’t signal any appetite to make the act subject to judicial review or extensively explore the consequences that could have on agency rulemaking. However, Judge William A. Fletcher expressed sympathy for the victim of a hypothetical government press release that may be blatantly false and defamatory. He followed his sympathy with skepticism after a Justice Department attorney claimed that defaming people is “not what the government does.”

“So you’re saying, ‘We’re from the government, trust us,’ ” Fletcher said.

Government's Position.

The government’s position is that the OMB polices agencies’ administrative review procedures dealing with requests to correct information, Justice Department attorney Melissa Patterson told the judges.

A Ninth Circuit ruling that Information Quality Act decisions are judicially reviewable would conflict with the Fourth Circuit’s holding in Salt Institute, making the issue ripe for U.S. Supreme Court review.

But even if the Ninth Circuit rules the other way, petitioners will continue to attempt to raise the issue in the U.S. Court of Appeals for the District of Columbia Circuit, because that court is the venue for much administrative law, Thomas McGarity, an administrative law professor at the University of Texas, told Bloomberg BNA March 18.

Lawsuits Could Be ‘Disrupting.'

A ruling that made the quality of all information issued by the government subject to judicial review may pave the way for court-clogging mischief that could be a tremendous drain on agency resources, McGarity said. Moreover, lawsuits challenging information supporting proposed rules that come during the rulemaking process would be “terribly disrupting,” McGarity said.

The potential for judicial review of government information could open up individual statements and comments included in a regulation's preamble to legal challenge, said Jeffrey Lubbers, an administrative law professor at American University Washington College of Law.

“I don’t think anyone is complaining that there’s not enough judicial review,” Lubbers told Bloomberg BNA March 17. “To have separate independent judicial review for statements in the course of rulemaking seems to be duplicative and problematic.”

Possible ‘Hugh Step Forward.'

But the Information Quality Act hasn’t successfully ensured the integrity of agency information used in rulemaking, said Richard Williams, vice president for policy research at the Mercatus Center at George Mason University. Williams told Bloomberg BNA March 17 that the act is “toothless,” and administrative challenges are almost always resolved in the agency’s favor.

Making decisions under the act judicially reviewable would be a good thing because it would give impartial judges a role in maintaining the quality of the science and risk assessments that go into rulemaking, Williams said. He pointed out that the Regulatory Accountability Act (H.R. 185), which the House passed in January, would allow for such judicial review.

“The agencies are experts, but they’re not unbiased,” Williams said. “The goal is to have as much unbiased, objective information as possible. If [judicial review of the act] does that, it would be a huge step forward.”