Monday, July 19, 2004

Industry Brief Seeks To Limit Precedent In Recent Data Quality Ruling

A newly filed industry brief in an ongoing data quality suit is seeking to curtail the effect of a recent ruling in a separate federal district court suit that limited private parties’ ability to challenge EPA and other government agencies over the data they use in making their decisions.

The July 16 industry brief charges that the recent ruling, In re: Operation of the Missouri River System Litigation, did not properly consider a key Supreme Court test for determining whether private parties have a right to judicial review and did not provide sufficient analysis to justify its decision.

Industry officials have said that they plan to use the current case, Salt Institute and Chamber of Commerce of the United States v. Thompson, to overturn the precedent set by the Missouri River case. The current case seeks release of a federal study supporting a 2002 directive by the Department of Health and Human Services urging consumers to restrict sodium intake by salt consumption in order to limit high blood pressure.

The Justice Department did not cite the Missouri River case in its June 25 brief but argued that federal courts do not have jurisdiction to review agencies’ data quality decisions.

Oral arguments in this case are scheduled for Aug. 13.

At issue is whether federal courts can review agency decisions on private parties petitions seeking correction of data EPA and other agencies rely on in making their decisions. The Information Quality Act (IQA) created a process for private parties to petition agencies to correct data and required the White House Office of Management and Budget (OMB) to issue guidelines to agencies on ensuring the “quality, objectivity, utility and integrity” of its data.

Since President Clinton signed the act into law in 2000, industry attorneys have argued that agency decisions on their petitions are “final agency actions” subject to federal court review.

However, the precedent-setting ruling in the Missouri River case said the law did not provide courts with jurisdiction over agency decision on private party petitions. The ruling says that because Congress failed to adequately define key terms about the data quality law’s scope and requirements, it intended to provide agencies with discretion to determine whether to respond to requests to release data. The ruling says courts are not entitled to review agency actions under the Administrative Procedure Act (APA) if the agency action is discretionary.

However, the ruling may have left the door open to future industry arguments that agencies’ failure to follow OMB guidelines implementing the law could create a right to sue under the APA in the future, environmentalists and industry observers say.

In their July 16 brief, lawyers for the Salt Institute and the Chamber of Commerce argue the Missouri River ruling lacks analysis supporting its decision, calling the decision a “throw in” claim during the final stages of that case. The brief says the data quality issue was never properly before the court because none of the parties involved raised that issue.

The industry brief also says the Missouri River ruling does not properly consider the four-part test set by the Supreme Court in a 1975 case, Cort. v. Ash, to determine if a party had a private right of action if one was not explicitly authorized. The test is whether: the plaintiff is of the class for whose benefit the statute was enacted; there is any indication of legislative intent either to create a remedy or deny one; a private cause of action is consistent with the underlying purposes of the legislation; and the cause of action is traditionally relegated to state law.

Industry attorneys argue that the plaintiffs qualify for judicial review under this four-part test.

In their brief in the case, DOJ lawyers argue that courts cannot review the industry case under the APA because dissemination of the study does not constitute “final agency action” that is necessary for APA review. DOJ adds that even if the warnings about salt intake were found to be final agency action, courts would still not be able to review the issue because correcting agency data is subject to agency discretion and is not subject to judicial review.

DOJ also argues that the court does not have jurisdiction to review this case because industry has not demonstrated how warnings about sodium intake injures them -- a prerequisite to demonstrate standing under Article III of the Constitution.

Date: July 19, 2004

© Inside Washington Publishers