Case 1:18-cv-10874-DPW Document 37-1 Filed 07/12/19 Page 1 of 22

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PROTECT DEMOCRACY PROJECT, INC.;
BRENNAN CENTER FOR JUSTICE AT
NEW YORK UNIVERSITY SCHOOL OF LAW;
MICHAEL F. CROWLEY; and
BENJAMIN WITTES,
Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE;
DEPARTMENT OF HOMELAND SECURITY;
WILLIAM PELHAM BARR in his Official
Capacity as Attorney General of the United
States; and KEVIN K. McALEENAN,
in His Official Capacity as Acting Secretary of
the Department of Homeland Security,

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C.A. No. 18-10874-DPW

Defendants.
DEFENDANTS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION TO DISMISS
Defendants, U.S. Department of Justice, Department of Homeland Security, William
Pelham Barr, in his official capacity as Attorney General of the United States, and Kevin K.
McAleenan, in his official capacity as Acting Secretary of the Department of Homeland Security
(“Defendants”), 1 by their attorney, Andrew E. Lelling, United States Attorney for the District of
Massachusetts, pursuant to Rule 12(b)(1) and, in the alternative, Rule 12(b)(6), of the Federal
Rules of Civil Procedure, have moved the Court for an order dismissing Plaintiffs’ complaint
against them. This Memorandum of Law is submitted in support of the Motion.

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Secretary of
U.S. Department of Homeland Security Kevin K. McAleenan has been substituted automatically
for former Secretary Kirstjen Nielsen.

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I
INTRODUCTION
Every court to have considered a claim alleging a violation of the Information Quality
Act (“IQA”), whether brought directly under the IQA or framed as a challenge under the
Administrative Procedure Act (“APA”), has rejected it, reasoning that third parties have no basis
to enforce legal rights under the IQA. Undeterred by this weight of authority, Plaintiffs, Protect
Democracy Project, Inc. (“Protect Democracy”), Brennan Center for Justice at New York
University School of Law (“Brennan Center”), Michael F. Crowley (“Crowley”) and Benjamin
Wittes (“Wittes”) (collectively “Plaintiffs”), ask this Court to become the first to reach the merits
of an IQA claim. That request should be rejected for a number of reasons. The report issued by
the Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”) in
response to Executive Order 13780 violates neither the APA, the IQA, nor the agencies’ IQA
Guidelines, and there is no basis for this Court to review the agencies’ responses to Plaintiffs’
petition for correction and request for reconsideration. Thus, no basis exists for this Court to
declare that the report violates the IQA, its implementing guidelines, and the APA, let alone to
order DOJ and DHS to withdraw or correct the report. The established case law instead compels
dismissal of Plaintiffs’ claims.
Plaintiffs’ claims are not justiciable because Plaintiffs cannot establish an injury in fact
that is fairly traceable to the agency conduct being challenged here, nor are Plaintiffs’ claims
likely to be redressed by a favorable judicial decision. As such, Plaintiffs lack standing to pursue
this action. In addition, courts dismissing IQA lawsuits have found that agencies’ IQA decisions
are committed to their discretion by law, and agency responses to IQA petitions do not constitute
“final agency action” reviewable under the APA. Finally, even were the Court to find Plaintiffs’
2

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IQA claim justiciable, Plaintiffs failed to plead allegations sufficient to state a claim for relief
under the APA. For these reasons, as more fully explained below, this action should be
dismissed.
II
A.

The Statutory Background and Agency Guidelines
1.

The Information Quality Act

Congress enacted the Information Quality Act (“IQA”) in a note to the Consolidated
Appropriations Act of 2001, Pub. L. No. 106-554, § 515, 114 Stat. 2763 (2000) (codified at 44
U.S.C. § 3516 note). The IQA directed the Office of Management and Budget (“OMB”) to draft
guidelines “that provide policy and procedural guidance to Federal agencies for ensuring and
maximizing the quality, objectivity, utility, and integrity of information (including statistical
information) disseminated by Federal agencies in fulfillment of the purposes and provisions” of
the Paperwork Reduction Act. Id. § 515(a). The IQA also directed OMB to include specific
requirements for federal agencies in its guidelines, including requiring that agencies develop
their own information quality guidelines within one year of the issuance of OMB’s Guidelines,
establish administrative procedures for affected persons to seek and obtain correction of
information not in compliance with guidelines, and report periodically to OMB on the number
and nature of complaints that they receive regarding the accuracy of the information they
disseminate. See id. § 515(b)(2). Congress did not provide in the IQA for judicial review of the
information disseminated by agencies. Instead, Congress directed OMB to “establish
administrative mechanisms allowing affected persons to seek and obtain correction of
information maintained and disseminated by the agency that does not comply with the guidelines
issued.” Id.

3

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2.

The OMB Guidelines

OMB published its IQA guidelines in February 2002. See Guidelines for Ensuring and
Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by
Federal Agencies; Republication, 67 Fed. Reg. 8451, 8458-59 (Feb. 22, 2002) (“OMB
Guidelines”). The OMB Guidelines direct agencies to undertake four primary responsibilities:
(1) adopt specific standards of quality, including objectivity, utility, and integrity, for various
categories of disseminated information; (2) develop processes for reviewing the quality of
information before dissemination; (3) adopt administrative mechanisms that are “flexible” and
“appropriate to the nature and timeliness of the disseminated information” to allow affected
persons to seek and obtain, where appropriate, timely correction of disseminated information that
does not comply with OMB or agency guidelines; and (4) provide OMB with reports regarding
the agencies’ information quality guidelines and any information quality complaints they
received. Id. The OMB Guidelines state that “agencies must apply these standards flexibly,” “in
a common-sense and workable manner,” and that “[i]t is important that these guidelines do not
impose unnecessary administrative burdens that would inhibit agencies from continuing to take
advantage of the Internet and other technologies to disseminate information that can be of great
benefit and value to the public.” Id. at 8453. The determination of whether to correct
information is left to the agencies, and agencies “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 8458.
3.

The DOJ Guidelines

In October 2002, DOJ issued its own Information Quality Guidelines. See Information
Quality: DOJ Information Quality Guidelines, U.S. Department of Justice,

4

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https://www.justice.gov/iqpr/iqpr.html (last updated October 31, 2018) (“DOJ Guidelines”). The
DOJ Guidelines adhere to the final OMB Guidelines, and focus on the basic standard of quality
of information, the process for reviewing the quality of information, and the establishment of
administrative mechanisms to allow affected persons to seek and obtain, where appropriate,
timely correction of information maintained and disseminated by the agency that does not
comply with OMB or agency guidelines. Id. When DOJ finds it necessary to respond to a
request for correction of information, it will “normally” do so within 60 calendar days of receipt,
but will inform the requestor if the request requires more time before it can be resolved. Id. Any
corrective action that DOJ may take in response to an IQA request “will be determined by the
nature and timeliness of the information involved and such factors as the significance of the error
on the use of the information and the magnitude of the error,” but “DOJ is not required to
change, or in any way alter, the content or status of information simply based on the receipt of a
request for correction.” Id. A requestor who disagrees with DOJ’s denial of a request, or with
the corrective action DOJ intends to take, “may file a request for reconsideration with the
disseminating DOJ component.” Id. Reconsideration requests that are not filed “45 calendar
days after” transmission of the initial DOJ decision are to be denied as untimely. Id.
The DOJ Guidelines specifically state that they “provide[] guidance to component staff
and inform[] the public of the agency’s policies and procedures. These guidelines are not a
regulation. They are not legally enforceable and do not create any legal rights or impose any
legally binding requirements or obligations on the agency or the public.” Id.
4.

The DHS Guidelines

Based on the OMB Guidelines, DHS issued its own Information Quality Guidelines to
provide transparency into the processes DHS and its components use to ensure the quality of

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disseminated information and to outline a process by which affected persons may seek or obtain
correction of disseminated information. See Information Quality Guidelines, U.S. Dep’t of
Homeland Sec., https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelinesfy2011.pdf (last visited July 5, 2019) (“DHS Guidelines”). DHS has also issued directives
concerning the processes and mechanisms for receiving, reviewing, and responding to
information requests. See Information Quality Guidelines, DHS Directives System Instruction
Number 129-02-001 (issued Oct. 14, 2014). DHS provides for an administrative correction
process, by which “affected persons can seek, and obtain, where appropriate, timely correction of
information that does not comply with OMB Guidelines, DHS Guidelines, or [DHS] Component
standards.” DHS Guidelines at 6. Under the DHS Guidelines, components should respond to
requests for correction within 60 days of receipt, and should notify the petitioner if the request
for correction requires an extended period of time to process. The DHS Guidelines further
provide that “[c]omponents need undertake only the degree of correction that they conclude is
appropriate for the nature and timeliness of the information involved.” Id. A petitioner may
appeal a decision on a request for correction. Id. The DHS Guidelines require that the
administrative appeal process include a final judgment by an official independent from the initial
response, specifically “someone who can offer objectivity (i.e., was not involved in making the
decision on the original request for correction or in producing the underlying information) and
who has a reasonable knowledge of the subject matter.” Id. at 8.
The DHS Guidelines expressly disclaim any legal enforceability:
The guidelines are not intended to be, and should not be construed as, legally
binding regulations or mandates. These guidelines are intended only to improve
the internal management of DHS and, therefore, are not legally enforceable and
do not create any legal rights or impose any legally binding requirements or
obligations on the agency or the public. Nothing in these guidelines affects any
available judicial review of agency action.
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Id. at 1.
B.

Executive Order 13780 and Initial Section 11 Report
In March 2017, the President signed Executive Order 13780, Protecting the Nation from

Foreign Terrorist Entry into the United States. 82 Fed. Reg. 13209 (Mar. 9, 2017). Executive
Order 13780 imposed restrictions on entry, with case-by-case waivers, into the United States by
individuals from six countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen. See Trump v.
Hawaii, 138 S. Ct. 2392, 2404 (2018). Section 11 of Executive Order 13780 directed the
Secretary of Homeland Security, in consultation with the Attorney General, to collect and make
publicly available the following categories of information “[t]o be more transparent with the
American people and to implement more effectively policies and practices that serve the national
interest”:
(i) information regarding the number of foreign nationals in the United States who
have been charged with terrorism-related offenses while in the United States;
convicted of terrorism-related offenses while in the United States; or removed
from the United States based on terrorism-related activity, affiliation with or
provision of material support to a terrorism-related organization, or any other
national-security-related reasons;
(ii) information regarding the number of foreign nationals in the United
States who have been radicalized after entry into the United States and
who have engaged in terrorism-related acts, or who have provided
material support to terrorism-related organizations in countries that pose a
threat to the United States;
(iii) information regarding the number and types of acts of gender-based
violence against women, including so-called “honor killings,” in the
United States by foreign nationals; and
(iv) any other information relevant to public safety and security as
determined by the Secretary of Homeland Security or the Attorney
General, including information on the immigration status of foreign
nationals charged with major offenses.
Exec. Order 13780, § 11(a), 82 Fed. Reg. at 13217.
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Subsequent to the issuance of Executive Order 13780, DHS and DOJ worked
collaboratively to provide information responsive to the requirements of Section 11. On January
16, 2018, DHS and DOJ released a report titled “Executive Order 13780: Protecting the Nation
From Foreign Terrorist Entry Into the United States Initial Section 11 Report” (“Initial Section
11 Report” or “Report”), which contained information responsive to the categories of
information that were required to be made publicly available under Section 11 for the period
from September 11, 2001 until the date of issuance. See Am. Compl. Ex. 1, ECF No. 36-1. The
Initial Section 11 Report noted that “because of previous information collection and reporting
practices of DHS and DOJ, some of the information provided in this initial report does not
capture the full spectrum of statistics envisioned by Executive Order 13780.” Am. Compl. Ex. 1,
at 1, ECF 36-1. The Report further stated that “DHS and DOJ will endeavor to provide
additional information in future reports issued pursuant to the requirements of Executive Order
13780.” Id.
C.

Plaintiffs’ IQA Request and DOJ’s and DHS’s Responses
1.

The IQA Request

By letter dated February 8, 2018, Plaintiffs (and one other individual, Nora Ellingsen,
who is not a party to this litigation) submitted a request to DOJ and DHS under both agencies’
IQA Guidelines seeking correction of information in the Initial Section 11 Report, or retraction.
See Am. Compl. Ex. 2, ECF No. 36-2. Plaintiffs raised several issues regarding the information
contained in the Initial Section 11 Report. They requested the agencies to either retract the
Report or correct it, based upon Plaintiffs’ interpretation of the data. Id. Plaintiffs raised
numerous objections to the information provided in the Report regarding the number of foreign
nationals charged, convicted, or removed from the United States in connection with terrorism-

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related offenses.
First, Plaintiffs alleged that because the Report excluded domestic terrorism, it “leaves
the reader with the impression that foreign-born individuals are the primary perpetrators of acts
of terrorism more generally.” Id. at 7, ¶ 1. Second, Plaintiffs alleged that the Report used
distorted information relating to extraditions and capture and is “inconsistent with the
requirement that information be presented in an ‘accurate, clear, complete, and unbiased manner’
and put ‘in a proper context.’” Id. ¶ 2 (citation omitted). Third, Plaintiffs alleged that the Report
failed to provide important information about the underlying data, and thereby “omitt[ed]
important context about the underlying data.” Id. at 8, ¶ 3. Fourth, Plaintiffs alleged that the
Report manufactured distinctions between U.S. citizens because it distinguished between “those
who are U.S. citizens by birth and those who are naturalized citizens. Id. ¶ 4. Fifth, Plaintiffs
claimed that the Report cherry-picked unrepresentative examples when it provided eight
illustrative examples of individuals convicted of international terrorism-related charges. Id. ¶ 5.
Sixth, Plaintiffs complained that the Report failed to provide underlying information and context
about terrorist watchlist claims. Id. at 9, ¶ 6. Seventh, Plaintiffs alleged that the Report’s
“section on violence against women repeatedly misrepresent[ed] or fail[ed] to put into proper
context the sources on which it relies” Id. ¶ 7. Eighth, they alleged that the Report’s discussion
on honor killings and forced marriages was “similarly flawed.” Id. ¶ 8. Finally, Plaintiffs
claimed that the Report “suffer[ed] from a general lack of transparency about the underlying data
on which it relie[d].” Id. at 10, ¶ 9.

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2.

DHS and DOJ Responses

On July 31, 2018, DOJ issued its response to Plaintiffs’ IQA request (“DOJ July 31
Response”). Am. Compl. Ex. 5, ECF No. 36-5. 2 The DOJ response explained that the Initial
Section 11 Report was consistent with the requirement of the IQA Guidelines to ensure the
quality, objectivity, utility, and integrity of information disseminated, and that the Report
outlined the scope and source of the data utilized and, where applicable, provided appropriate
caveats. Id. The DOJ response concluded that neither retraction or correct of information, which
Plaintiffs requested, was required.
On August 1, 2018, DHS issued a further response to Plaintiffs’ IQA request (DHS
August 1 Response”). Am. Compl. Ex. 6, ECF No. 36-6. The DHS response also addressed the
issues raised by Plaintiffs, as well as outlined DHS’ appeal rights.
3.

Plaintiffs’ Appeal and Agencies’ Responses

Plaintiffs requested that the agencies reconsider the denial of Plaintiffs’ Request for
Correction. Am. Compl. Ex. 7, ECF No. 36-7. On December 21, 2018, DOJ issued its response.
Am. Compl. Ex. 8, ECF No. 36-8. In it, DOJ acknowledged that, consistent with Plaintiffs’
concerns, the Report “could be criticized by some readers” but also recognized that it could not
“control the way in which information in the Report is used or interpreted.” Id. It continued by
providing specific responses to each of Plaintiffs’ issues (which were similar to the issues raised
in Plaintiffs’ February 8, 2018, request, described above) and concluded that the “Report
identified the origins and limitations of the information contained within it,” such that it “was

2

DOJ previously had issued an interim response on June 19, 2018, in which it stated it
required additional time to resolve Plaintiffs’ request, given the number and complexity of issues
raised therein. On the same day, DHS provided an interim response stating that it required
additional time to review Plaintiffs’ request and provide its response.
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sufficiently transparent and consistent with the IQA and implementing guidance.” Id. It
reaffirmed its prior decision not to retract or correct the Report.
Similarly, DHS’ response, issued on February 14, 2019, acknowledged it will take
Plaintiffs’ points into consideration in future Section 11 Reports, but concluded those points did
not require it to correct or withdraw the Report. Am. Compl. Ex. 9, ECF No. 36-9. It
determined that the Report was sufficiently transparent in its presentation of the information and
met the IQA guidelines. 3
III
ARGUMENT
A.

Plaintiffs Lack Standing to Pursue This Action
A plaintiff who seeks to invoke federal jurisdiction bears the burden of establishing “the

‘irreducible constitutional minimum’” of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Standing to sue “is part of
the common understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 101 (1998) (citation omitted). To satisfy the elements of standing,
the plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.
Spokeo, 136 S. Ct. 1547 (citing Lujan, 504 U.S. at 560-61). Injury in fact is the “[f]irst and
foremost” of standing’s three elements. Steel Co., 523 U.S. at 103. “[T]he plaintiff must have
suffered an ‘injury in fact’—an invasion of a legally protected interest” that is concrete,

3

Plaintiffs allege that the “the report includes factual claims that [DOJ and DHS] have
since admitted are not just misleading, but false.” Amended Compl. ¶ 3. This is not true.
Defendants openly admitted that the information in the Report was subject to interpretation,
criticism, and that certain statistics regarding gender-based violence were due to editorial errors.
Nowhere, however, do Defendants admit that the information was misleading and false.
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particularized, and actual or imminent, rather than conjectural or hypothetical. Lujan, 504 U.S.
at 560 (citation omitted). The plaintiff’s injury must also be “fairly traceable to the challenged
conduct of the defendant,” as well as “likely to be redressed by a favorable judicial decision.”
Spokeo, 136 S. Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. at 560–561). The
redressability element requires a showing that “it [is] likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Nulankeyutmonen Nkihtaqmikon v.
Impson, 503 F.3d. 18, 26 (1st Cir. 2007) (alteration in original) (quoting Lujan, 504 U.S. at 560–
61); Animal Welfare Inst. v. Martin, 623 F.3d 19, 25 (1st Cir. 2010) (quoting Lujan, 504 U.S. at
560–61).
At the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each
element of the standing inquiry. Spokeo, 136 S. Ct. at 1547 (alteration in original) (internal
quotation marks omitted) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). Plaintiffs’
allegations fall short and are insufficient to confer standing. They complain that Plaintiffs
Brennan Center and Mr. Wittes have written public analyses based on the data and claims in the
Report, but have been unable to rely on the allegedly false and misleading information in the
Report. Am. Compl. ¶ 71. They state that that “Protect Democracy and Brennan Center both
have an interest in advancing their missions to prevent the spread of disinformation, especially in
the national security context” and claim that they “had to undertake material efforts to educate
the public on the implications of the Report and to publicly correct” the information contained
therein. Am. Compl. ¶ 72. Plaintiff Wittes has an “interest in the accuracy of data about
terrorism.” Am. Compl. ¶ 74. Plaintiff Crowley, meanwhile, asserts merely a “professional
interest in the accurate, fair, and unbiased presentation of data” based on his past federal
positions. Am. Compl. ¶ 73. At most, each of the Plaintiffs’ allegations of interest asserts no

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more than a generalized grievance held by other members of the public. See United States v.
AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992) (“While the requisite injury may be common to
many, it may not be shared by all . . . [N]o matter how charged with public import the event [is,
it] will not substitute for an actual injury.”) (citing Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 216-27 (1974)). As the First Circuit has explained, “[t]he injury-in-fact
inquiry ‘serves to distinguish a person with a direct stake in the outcome of a litigation—even
though small—from a person with a mere interest in the problem.’” Adams v. Watson, 10 F.3d
915, 918 (1st Cir. 1993) (quoting United States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 690 n.14 (1973)). Here, Plaintiffs have articulated an interest in a
perceived problem, but they have failed to show an actual injury in fact.
Plaintiffs also do not show how their claim is traceable to the challenged conduct of
Defendants, nor how they would likely be redressed by a favorable judicial decision. Spokeo,
136 S. Ct. at 1547. The gravamen of Plaintiffs’ complaint is that the agency report did not
satisfy the informational standards of the IQA. However, while courts have recognized standing
for some informational harms where the statute creates a legal right to that information, see Fed.
Election Comm'n v. Akins, 524 U.S. 11, 12 (1998) (finding an informational injury under the
Federal Election Campaign Act), courts have held “[t]he IQA, by contrast, does not create any
legal right to information or its correctness,” Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir.
2006) (holding that the court did not need to decide whether the plaintiffs’ alleged “informational
injuries” were sufficient to establish standing, because the IQA did not grant this kind of right);
see also Family Farm Alliance v. Salazar, 749 F. Supp. 2d 1083, 1103 (E.D. Cal. 2010) (“The
IQA creates no enforceable legal rights at all . . . . There is no standing.”).
Accordingly, because Plaintiffs have not pled facts sufficient to show any injury in fact

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traceable to the Defendants that is likely to be redressed favorably by the Court, they lack Article
III standing to pursue this action. 4
B.

Plaintiffs’ Claims Are Not Subject to Judicial Review Under the APA

1.

Plaintiffs Do Not Have a Right of Action Under the IQA

Plaintiffs’ amended complaint alleges violations of the DOJ and DHS IQA Guidelines in
connection with the Section 11 Report.
However, the IQA does not confer any legal rights on private parties to compel the
correction or retraction of allegedly inaccurate information. Significantly, Congress did not
include in the IQA any provisions permitting judicial review of the information disseminated by
agencies, but instead directed the OMB to promulgate policies about information quality,
including guidelines to “establish administrative mechanisms allowing affected persons to seek
and obtain correction of information maintained and disseminated by the agency that does not
comply with the guidelines issued.” IQA § 515(b)(2). This plainly reflects a congressional
intent to preclude review through any avenue other than through administrative channels.
For this reason, while neither the Court of Appeals for the First Circuit nor the district
courts in the First Circuit have addressed the issue, other courts that have reviewed claims
alleging violations of the IQA “have uniformly found that it ‘does not create any legal right to
information or its correctness.’” Harkonen v. U.S. Dep’t of Justice, No. C 12-629 CW, 2012 WL
6019571, at *11 (N.D. Cal. Dec. 3, 2012) (quoting Salt Inst. v. Leavitt, 440 F.3d at 159), aff’d on

4

Whether a plaintiff has standing and a private right of action under a particular statute
are two separate questions. See Rhode Island Med. Soc. v. Whitehouse, 66 F. Supp. 2d 288, 301
(D.R.I. 1999), aff’d, 239 F.3d 104 (1st Cir. 2001) (An analysis of a plaintiff’s standing focuses
not on the claim itself, but on the party bringing the challenge; whether a plaintiff’s complaint
could survive on its merits is irrelevant[. . . .]”); Dudley v. Hannaford Bros. Co., 333 F.3d 299,
305 (1st Cir. 2003).
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other grounds, 800 F.3d 1143 (9th Cir. 2015). Indeed, in every case to come before the federal
courts since the IQA was enacted, courts have concluded that Congress has precluded judicial
review of alleged IQA violations. See, e.g., Family Farm Alliance, 749 F. Supp. 2d at 1090 (“It
is undisputed that the IQA provides no private right of action.”); Americans for Safe Access v.
U.S. Dep’t of Health & Human Servs., No. C 07-01049 WHA, 2007 WL 2141289, *3 (N.D. Cal.
July 24, 2007) (“[T]he IQA does not subject agency IQA decisions to judicial review.”); see also
Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 316 (D.D.C. 2009) (holding that “[b]ecause
the IQA lacks any rights-creating language, [plaintiff] has no right under that statute to seek
review of the USDA’s actions”), aff’d in pertinent part sub nom. Prime Time Int’l Co. v. Vilsack,
599 F.3d 678, 686 (D.C. Cir. 2010); Haas v. Gutierrez, No. 07 CV 3623 (GBD), 2008 WL
2566634, at *6 (S.D.N.Y. June 26, 2008) (“The Information Quality Act does not create any
legal rights, enforceable by unrelated third parties, to information or its correctness.”); Morgan
ex rel. U.S. v. Science Applications Int’l Corp., No. 07 CV 4612 (GBD), 2008 WL 2566747, at
*6 (S.D.N.Y. Jun. 26, 2008) (same); Wood ex rel. U.S. v. Applied Research Assocs., Inc., No. 07
CV 3314 (GBD), 2008 WL 2566728, at *6 (S.D.N.Y. June 26, 2008) (same), aff’d, 328 Fed.
Appx. 744 (2d Cir. 2009); In re Operation of the Missouri River Sys. Litig., 363 F. Supp. 2d
1145, 1174 (D. Minn. 2004) (holding that “the language of the IQA indicates that the Court may
not review an agency’s decision to deny a party’s information quality complaint” and “[t]he IQA
does not provide for a private cause of action”), aff’d in part and vacated in part on other
grounds, 421 F.3d 618 (8th Cir. 2005); Salt Inst. v. Thompson, 345 F. Supp. 2d 589, 601 (E.D.
Va. 2004) (holding that “[t]he language of the IQA reflects Congress’s intent that any challenges
to the quality of information disseminated by federal agencies should take place in administrative
proceedings before federal agencies and not in the courts”), aff’d sub. nom. Salt Inst. v. Leavitt,

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440 F.3d 156, 159 (4th Cir. 2006).
2.

Neither the IQA nor the APA Allow for Judicial Review in This Case

Plaintiffs attempt to overcome the settled case law disallowing any private right of action
or right to obtain correction under the IQA by framing their claim as an APA challenge, but such
efforts, too, have been previously rejected by the courts. See Habitat for Horses v. Salazar, No.
10 Civ. 7684 (WHP), 2011 WL 4343306, at *7 (citing the absence of “any authority supporting
Plaintiffs’ contention that they may bring [an IQA] claim under the APA” and “declin[ing] to
fashion a new remedy”); Wood ex rel. United States, 2008 WL 2566728, at *6 (holding that
“[n]either the Information Quality Act, nor the Administrative Procedure Act, create a private
right of action upon which plaintiff may independently pursue this litigation”).
By its very terms, the APA does not apply when “statutes preclude judicial review,” 5
U.S.C. § 701(a)(1), and the IQA is a statute that precludes judicial review. The APA also does
not apply where “agency action is committed to agency discretion by law.” Id. § 701(a)(2).
Through the IQA, Congress prescribed no standard for an agency to apply in considering a
correction request, and agency regulations grant broad discretion on this issue. Finally, even
were Plaintiffs able to overcome both of these exceptions to judicial review of agency action, the
APA subjects to review only “[a]gency action made reviewable by statute” and “final agency
action for which there is no other adequate remedy in a court.” Id. § 704. DOJ’s and DHS’s
responses to Plaintiffs’ IQA Request and Request for Reconsideration do not constitute “final
agency action” that is reviewable under the APA.
A.

The IQA Precludes Judicial Review

Section 701(a) of the APA specifically states “that [the APA] applies, . . . except to the
extent that—(1) statutes preclude judicial review” Id. § 701(a)(1) (emphasis added). Although

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courts only preclude review in the presence of “clear and convincing evidence of congressional
intent” to do so, Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984), the Supreme Court has
found this kind of intent where the “statutory scheme” implies that review is precluded, id. at
346. In Block v. Community Nutrition Institute, the Court noted that “[n]owhere in the Act” was
there any “express provision” allowing consumers to attain judicial review. Id. at 347. The Court
concluded that, “[i]n a complex scheme of this type, the omission of such a provision is
sufficient reason to believe that Congress intended to foreclose consumer participation in the
regulatory process.” Id. The IQA contains this same kind of carefully constructed administrative
scheme that precludes judicial review. As discussed above, the IQA sets forth an alternative
review procedure by which agencies are required to establish administrative mechanisms to
allow affected persons to seek and obtain correction of disseminated information that allegedly
does not comply with an agency’s IQA guidelines. See 44 U.S.C. § 3516 note. As the Court in
Harkonen explained, “the IQA creates an administrative system designed to permit federal
agencies and OMB to monitor and improve the information used and disseminated by federal
agencies.” Harkonen, 800 F.3d at 1148. The availability of administrative review thus reflects
the Congressional intent that “any challenges to the quality of information disseminated by
federal agencies should take place in administrative proceedings before federal agencies and not
in the courts.” Salt Inst., 345 F. Supp. 2d at 601.
B.

Agency IQA Decisions Are Committed to Agency Discretion

Judicial review of IQA claims is also unavailable under the APA because agencies’ IQA
decisions are “matters ‘committed to agency discretion by law.’” Salt Inst., 345 F. Supp. 2d at
602 (quoting 5 U.S.C. § 701(a)(2)). Agency action is committed to an agency’s discretion by
law if “a court would have no meaningful standard against which to judge the agency’s exercise

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of discretion,” Heckler v. Chaney, 470 U.S. 821, 830 (1985), such as “where statutes are drawn
in such broad terms that in a given case there is no law to apply.” Id. (internal quotation marks
and citations omitted) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1977); see also Massachusetts Pub. Interest Research Grp., Inc. v. U.S. Nuclear Regulatory
Comm'n, 852 F.2d 9, 15 (1st Cir. 1988) (applying Heckler v. Chaney and holding that a
nonenforcement decision by the National Regulatory Commission was committed to agency
discretion and not reviewable). The IQA required the OMB to provide policy and procedural
guidance to federal agencies about information quality, but did not set forth any limitations
restricting an agency’s discretion in responding to IQA requests for correction. As the court in
Family Farm Alliance concluded, “the IQA itself contains absolutely no substantive standards,
let alone any standards relevant to the claims brought in this case” concerning the timing of
responses to IQA petitions and the request that the agency conduct an adequate peer review of its
biological opinion. Family Farm Alliance, 749 F. Supp. 2d at 1092. The district court in
Harkonen similarly found that “the IQA is silent on the standards by which an affected person’s
request for correction should be judged” and “[t]he OMB Guidelines provide that agencies ‘are
required to undertake only the degree of correction that they conclude is appropriate for the
nature and timeliness of the information involved,’ which is akin to saying that the decision is
committed to the agency’s discretion.” Harkonen, 2012 WL 6019571, at *16.
As with the IQA, DOJ’s and DHS’s IQA Guidelines do not contain any meaningful
standards governing the agency actions that Plaintiffs challenge (the timing of the agencies’
response to Plaintiffs’ IQA request). 5 Under the DOJ Guidelines, DOJ will “normally” respond

5

Insofar as Plaintiffs intended to challenge the Report as non-compliant with the IQA (a
claim not squarely alleged in the Amended Complaint), there is also no meaningful standard for
judicial review. Consistent with the IQA’s broad guidance, the DOJ and DHS IQA Guidelines
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to requests for correction of information within 60 calendar days of receipt, but will inform the
requestor if the request requires more time before it can be resolved. DOJ Guidelines. The DOJ
Guidelines further provide that“[a]ny corrective action will be determined by the nature and
timelines of the information involved” and “DOJ is not required to change, or in any way alter,
the content or status of information simply based on the receipt of a request for correction.” Id.
Similarly, DHS Guidelines provide that DHS components “should” respond to requests for
correction within 60 days of receipt, but direct the component to “notify the petitioner” if “the
request for correction requires an extended period of time for processing.” DHS Guidelines.
The DHS Guidelines leave it to the component’s discretion to “undertake only the degree of
correction that they conclude is appropriate for the nature and timeliness of the information
involved.” Id.
By their plain terms, both agencies’ Guidelines “consign[ ] all matters related to
application of those Guidelines, including the timing of responses, to the discretion” of the
agency. Family Farm Alliance, 749 F. Supp. 2d at 1093. The agencies’ IQA 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.” Salt Inst., 345 F. Supp. 2d at 602 (alteration in original) (emphasis
added) (quoting OMB Guidelines); see also Family Farm Alliance, 749 F. Supp. 2d at 1095
(concluding that “[t]he IQA itself contains no standards concerning peer review, committing

do not contain mandates to which Plaintiffs can point that either are enforceable through a civil
action nor have been violated. The agencies’ Guidelines in fact make clear that determining
whether an information quality issue exists, and in turn deciding what, if any, corrective action to
take is a matter committed to each respective agency.
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such matters to agency discretion”). On this basis, courts have found that judicial review of
agencies’ discretionary decisions is not available under the APA where the guidelines at issue
“insulate the agency’s determinations of when correction of information contained in informal
agency statements is warranted.” Salt Inst., 345 F. Supp. 2d at 603; see also Styrene Information
& Research Ctr., Inc. v. Sebelius, 944 F. Supp. 2d 71, 82 (D.D.C. 2013) (concluding that “the
IQA and OMB guidelines do not provide judicially manageable standards”).
Accordingly, because the IQA is a statute that precludes judicial review and the actions
taken by DOJ and DHS in responding to an IQA petition are committed to agency discretion by
law, Plaintiff cannot seek judicial review under the APA.
C.

The Challenged Actions Do Not Constitute Final Agency Action.

APA review is unavailable for yet another reason: because neither DOJ nor DHS has
taken any “final agency action.” The APA allows judicial review of “final agency action for
which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Two conditions must be
met for there to be a final agency action: (1) “the action must mark the consummation of the
agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature,”
and (2) “the action must be one by which rights or obligations have been determined, or from
which legal consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct.
1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)); see also Berkshire
Envtl. Action Team, Inc. v. Tennessee Gas Pipeline Co., LLC, 851 F.3d 105, 111 (1st Cir. 2017)
(“An agency action is ‘final’ only where it ‘represents the culmination of the agency’s
decisionmaking process and conclusively determines the rights and obligations of the parties
with respect to the matters at issue.’” (quoting Rhode Island v. EPA, 378 F.3d 19, 23 (1st Cir.
2004)). Plaintiffs failed to allege that the agencies’ responses to its IQA petition are actions

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from which legal consequences will flow.
As courts have explained, “[a]gency dissemination of advisory information that has no
legal impact has consistently been found inadequate to constitute final agency action and thus is
unreviewable by federal courts under the APA.” Salt Inst., 345 F. Supp. 2d at 602. That is,
because the IQA “does not vest any party with a right to information or to correction of
information,” DOJ’s and DHS’s actions under the IQA did not determine any of Plaintiffs’ rights
or result in any legal consequences for Plaintiff. Single Stick, 601 F. Supp.2d at 316 (citing Salt
Inst., 440 F.3d at 159); see also Americans for Safe Access, 2007 WL 2141289, at *4 (dismissing
complaint where plaintiff failed to allege any facts suggesting that the defendant agency’s failure
to correct their allegedly erroneous statement had any legal consequences or determined any
rights or obligations). Here, Plaintiffs have not alleged, nor could they, that the agencies’
responses to its IQA petition are actions from which legal consequences will flow.
In sum, the IQA itself does not provide a cause of action, and the DOJ and DHS IQA
Guidelines explicitly do not create any enforceable right, claim, or cause of action. Moreover,
the APA does not provide an alternate path by which Plaintiff can obtain judicial review of its
claims. Not only does the APA not provide an alternative cause of action, but the application of
Sections 701(a) and 704 of the APA forecloses judicial review of Plaintiffs’ IQA claim. The
Court should therefore dismiss Plaintiffs’ Amended Complaint.

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IV
CONCLUSION
Based upon the foregoing, Defendants request the Court grant their motion and dismiss
Plaintiffs’ Amended Complaint in its entirety.

Respectfully submitted,
ANDREW E. LELLING,
United States Attorney
By:

/s/ Susan M. Poswistilo
Susan M. Poswistilo (BBO #565581)
Assistant U.S. Attorney
U.S. Attorney’s Office
John J. Moakley U.S. Courthouse
1 Courthouse Way, Suite 9200
Boston, MA 02210
(617) 748-3103
susan.poswistilo@usdoj.gov

CERTIFICATE OF SERVICE
I hereby certify that service of the foregoing filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing.

/s/ Susan M. Poswistilo
Susan M. Poswistilo
Dated: July 12, 2019

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