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Writing for a panel of judges on the U.S. Court of Appeals for the Fourth Circuit, Judge Michael Luttig--once on the short list of President Bush's Supreme Court nominees--upheld a lower court's ruling, denying the reviewability of the data quality challenge.
The ruling was a definitive statement in the debate over whether DQA enables judicial review. The opinion of the court found the plaintiffs failed to establish "an invasion of a legal right" and thus an injury and concluded that "[t]he judgment of the district court dismissing the case for lack of jurisdiction is affirmed."
This case, set up as a test of DQA's authority, has been watched closely by both sides of the DQA debate. The initial challenge with the NHLBI, the division of the National Institute of Health charged with fighting diseases of the heart, blood, and lungs, was rejected under the Freedom of Information Act (FOIA) because the challenge sought only to obtain underlying survey data. The institute rejected the FOIA request because the data was collected by a federal grantee, not the government, and non-governmental entities are generally not subject to FOIA. The Salt Institute and the Chamber of Commerce appealed the agency decision, making clear their challenge was under the Data Quality Act, not FOIA, and alleging that they had suffered harm from the study. Once NHLBI rejected that appeal, the industry associations pursued legal recourse.
Soon after the court decision, talk turned to pursuing other DQA cases in the courts and amending DQA to allow for judicial review. Rep. Candice Miller (R-MI) stated that she will consider introducing legislation to establish judicial review of DQA and may include it in a Paperwork Reduction Act reauthorization bill. The Center for Regulatory Effectiveness appears to be seeking another data quality challenge in the courts, in order to establish a counter precedent where a court finds DQA reviewable.
The Chamber of Commerce and the Salt Institute have three options for moving forward with the case. First, they can petition for a rehearing before the same three-judge panel. Second, they can submit an en banc petition, requesting a hearing before the entire Fourth Circuit. Finally, they can petition the Supreme Court to issue a writ of certiorari.