Case 1:18-cv-10874-DPW Document 43 Filed 09/13/19 Page 1 of 37

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,
Case No. 1:18-cv-10874-DPW

v.
U.S. DEPARTMENT OF JUSTICE, U.S.
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.

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS THE AMENDED COMPLAINT

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TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
BACKGROUND ........................................................................................................................... 2
I.

Factual Background ............................................................................................... 2

II.

The Information Quality Act ................................................................................. 5

III.

Procedural History ................................................................................................. 7

ARGUMENT ................................................................................................................................. 8
I.

Pleading Standard .................................................................................................. 8

II.

Plaintiffs Have Standing to Pursue This Action .................................................... 9
A.

III.

Plaintiffs Have Adequately Alleged Informational Standing .................... 9
1.

Plaintiffs have standing to challenge the Agencies’ refusal
to disclose information in violation of a statutory right ................ 9

2.

Plaintiffs have suffered the type of harm Congress sought
to prevent by requiring disclosure ............................................... 11

3.

These injuries are not a generalized grievance ........................... 13

B.

Plaintiffs Have Adequately Alleged Procedural Standing ....................... 14

C.

Causation and Redressability ................................................................... 15

The APA Provides for Judicial Review of the Agencies’ Denial of
Plaintiffs’ Petition ................................................................................................ 16
A.

The Denial of the Petition Is Final Agency Action.................................. 17

B.

The IQA Does Not Frustrate This Court’s Review ................................. 19
1.

The IQA does not impliedly preclude review here ....................... 20

2.

Judicially manageable standards are available to review
IQA decisions ............................................................................... 21

CONCLUSION ............................................................................................................................ 27

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TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) .................................................................................................................. 19
Adams v. Watson,
10 F.3d 915 (1st Cir. 1993) ....................................................................................................... 13
Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n,
389 F.3d 536 (6th Cir. 2004) ................................................................................................ 9, 14
Am. for Safe Access v. HHS,
2007 WL 2141289 (N.D. Cal. July 24, 2007)........................................................................... 18
Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys.,
745 F.2d 677 (D.C. Cir. 1984) .................................................................................................. 24
Augat, Inc. v. Tabor,
719 F. Supp. 1158 (D. Mass. 1989) .......................................................................................... 24
Barlow v. Collins,
397 U.S. 159 (1970) .................................................................................................................. 25
Becker v. FEC,
112 F. Supp. 2d 172 (D. Mass. 2000) aff’d 230 F.3d 381 (1st Cir. 2000) ................................ 10
Bennett v. Spear,
520 U.S. 154 (1997) ...................................................................................................... 17, 18–19
Block v. Community Nutrition Institute,
467 U.S. 340 (1984) ............................................................................................................ 20–21
Cal. Communities Against Toxics v. EPA,
__ F.3d __ , 2019 WL 3917540 (D.C. Cir. Aug. 20, 2019) ...................................................... 19
Centro Presente v. DHS,
332 F. Supp. 3d 393 (D. Mass. 2018) ....................................................................................... 20
Citizens for Responsibility & Ethics in Washington v. Trump, __ F.3d __, 2019 WL
4383205 (2d Cir. Sept. 13, 2019) ............................................................................................. 11
Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium,
836 F. Supp. 45 (D. Mass. 1993) .............................................................................................. 12

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TABLE OF AUTHORITIES
(continued)
Page(s)
City of Sausalito v. O’Neill,
386 F.3d 1186 (9th Cir. 2004) .................................................................................................. 20
Collins v. Mnuchin,
__ F.3d __, 2019 WL 4233612 (5th Cir. Sept. 6, 2019) ........................................................... 16
Common Cause Ind. v. Lawson,
__ F.3d __, 2019 WL 4022177 (7th Cir. Aug. 27, 2019) ........................................................ 13
Conservation Law Found., Inc. v. Jackson,
964 F. Supp. 2d 152 (D. Mass. 2013) ....................................................................................... 18
Cousins v. Sec’y of the U.S. Dep’t of Transp.,
880 F.2d 603 (1st Cir. 1989) ............................................................................................... 18, 20
Craker v. DEA,
714 F.3d 17 (1st Cir. 2013) ................................................................................................. 23, 24
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) ............................................................................................ 16, 21, 25–26
Dep’t of Transp. & Dev. of La. v. Beaird-Poulan, Inc.,
449 U.S. 971 (1980) .................................................................................................................. 20
Doe v. Tenenbaum,
127 F. Supp. 3d 426 (D. Md. 2012) .................................................................................... 17–18
Dugan v. Ramsay,
727 F.2d 192 (1st Cir. 1984) ..................................................................................................... 25
Family Farm Alliance v. Salazar,
749 F. Supp. 2d 1083 (E.D. Cal. 2010) .............................................................................. 11, 21
Fed. Election Comm’n v. Akins,
524 U.S. 11 (1998) .......................................................................................................... 9, 10, 12
Friends of Animals v. Jewell,
824 F.3d 1033 (D.C. Cir. 2016) ("Friends of Animals I") ........................................................ 13
Friends of Animals v. Jewell,
828 F.3d 989 (D.C. Cir. 2016) ("Friends of Animals II") ............................................. 10, 11–12
Guedes v. ATF,
920 F.3d 1 (D.C. Cir. 2019) cert. pet. docketed No. 19-296 (Sept. 4, 2019)............................ 19

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TABLE OF AUTHORITIES
(continued)
Page(s)
Gustavsen v. Alcon Labs., Inc.,
903 F.3d 1 (1st Cir. 2018) ........................................................................................................... 9
Harkonen v. DOJ,
800 F.3d 1143 (9th Cir. 2015) .................................................................................................. 19
Hauod v. Ashcroft,
350 F.3d 201 (1st Cir. 2003) ..................................................................................................... 22
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) .............................................................................................................. 9, 13
High Country Citizens All. v. Clarke,
454 F.3d 1177 (10th Cir. 2006) ................................................................................................ 20
Hill v. Norton,
275 F.3d 98 (D.C. Cir. 2001) .................................................................................................... 20
House v. Dep’t of Commerce,
11 F. Supp. 2d 76 (D.D.C. 1998), appeal dismissed 525 U.S. 316 (1999) ............................... 10
Hyatt v. Office of Mgmt. & Budget,
908 F.3d 1165 (9th Cir. 2018) .................................................................................................. 17
Int’l Fabricare Inst. v. EPA,
972 F.2d 384 (D.C. Cir. 1992) .................................................................................................. 24
Jordan Hosp., Inc. v. Shalala,
276 F.3d 72 (1st Cir. 2002) ....................................................................................................... 20
King v. Office for Civil Rights of U.S. Dep’t of Health & Human Servs.,
573 F. Supp. 2d 425 (D. Mass. 2008) ....................................................................................... 22
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .................................................................................................................. 11
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ........................................................................................................ 9, 15, 16
Mach Mining, LLC v. E.E.O.C.,
135 S. Ct. 1645 (2015) ........................................................................................................ 19, 26
Marshall Cty. Health Care Auth. v. Shalala,
988 F.2d 1221 (D.C. Cir. 1993) ................................................................................................ 25

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TABLE OF AUTHORITIES
(continued)
Page(s)
Massachusetts v. E.P.A.,
549 U.S. 497 (2007) .................................................................................................................. 16
Munoz-Mendoza v. Pierce,
711 F.2d 421 (1st Cir. 1983) ..................................................................................................... 15
Muslim Advocates v. DOJ ,
2019 WL 3254230 (N.D. Cal. July 19, 2019)............................................................... 19, 21, 25
NAACP v. Sec’y of Hous. & Urban Dev.,
817 F.2d 149 (1st Cir. 1987) ......................................................................................... 21, 23, 27
Nat’l Women’s Law Ctr. v. OMB,
358 F. Supp. 3d 66 (D.D.C. 2019) ............................................................................................ 13
Nulankeyutmonen Nkihtaqmikon v. Impson,
503 F.3d 18 (1st Cir. 2007) ....................................................................................................... 15
Nw. Bypass Grp. v. U.S. Army Corps of Eng’rs,
470 F. Supp. 2d 30 (D.N.H. 2007) ............................................................................................ 23
Padula v. Webster,
822 F.2d 97 (D.C. Cir. 1987) .................................................................................................... 22
People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric.,
797 F.3d 1087 (D.C. Cir. 2015) ................................................................................................ 13
People To End Homelessness, Inc. v. Develco Singles Apartments Assocs.,
339 F.3d 1 (1st Cir. 2003) ....................................................................................................... 8–9
Prime Time Int’l Co. v. Vilsack,
599 F.3d 678 (D.C. Cir. 2010) .................................................................................................. 19
Pub. Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 (1989) .................................................................................................. 9, 12–13, 14
Salt Inst. v. Leavitt,
440 F.3d 156 (4th Cir. 2006) .............................................................................................. 11, 18
Scanwell Labs., Inc. v. Schaffer,
424 F.2d 859 (D.C. Cir. 1970) .................................................................................................. 11
Sierra Club v. Peterson,
705 F.2d 1475 (9th Cir. 1983) .................................................................................................. 20

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TABLE OF AUTHORITIES
(continued)
Page(s)
Sig Sauer, Inc. v. Brandon,
826 F.3d 598 (1st Cir. 2016) .............................................................................................. 19, 23
Sig Sauer, Inc. v. Jones,
133 F. Supp. 3d 364 (D.N.H. 2015) .......................................................................................... 19
Single Stick, Inc. v. Johanns,
601 F. Supp. 2d 307 (D.D.C. 2009) .......................................................................................... 18
Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) .............................................................................................................. 12
State of Iowa ex rel. Miller v. Block,
771 F.2d 347 (8th Cir. 1985) .................................................................................................... 25
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) .................................................................................................... 26
United States v. AVX Corp.,
962 F.2d 108 (1st Cir. 1992) ............................................................................................... 13–14
United States v. Welden,
377 U.S. 95 (1964) ...................................................................................................................... 6
United to Protect Democracy v. Presidential Advisory Comm’n on Election Integrity,
288 F. Supp. 3d 99 (D.D.C. 2017) ...................................................................................... 12, 14
Van Patten v. Vertical Fitness Grp., LLC,
847 F.3d 1037 (9th Cir. 2017) .................................................................................................. 15
Ward v. Skinner,
943 F.2d 157 (1st Cir. 1991) ..................................................................................................... 25
Watervale Marine Co. v. DHS,
55 F. Supp. 3d 124 (D.D.C. 2014), aff’d 807 F.3d 325 (D.C. Cir. 2015) ................................. 22
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,
139 S. Ct. 361 (2018) ................................................................................................................ 24
Statutes
5 U.S.C. § 701 ............................................................................................................................... 20
5 U.S.C. § 704 ............................................................................................................................... 17

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TABLE OF AUTHORITIES
(continued)
Page(s)
5 U.S.C. § 706 ................................................................................................................... 16, 23, 26
13 U.S.C. § 41 ............................................................................................................................... 24
15 U.S.C. § 313 ............................................................................................................................. 24
18 U.S.C. § 2331(1) ........................................................................................................................ 4
29 U.S.C. § 2 ................................................................................................................................. 24
29 U.S.C. § 49l-2 .......................................................................................................................... 24
34 U.S.C. § 10132 ......................................................................................................................... 24
Paperwork Reduction Act of 1995, Pub. L. 104-13, 109 Stat. 163 (Mar 22, 1995),
codified at 44 U.S.C. § 3501 ....................................................................................................... 6
Pub. L. 106-554 § 515, 114 Stat. 2763A-153–54 (Dec. 21, 2000), codified at 44 U.S.C.
§ 3516 note......................................................................................................................... passim
Other Authorities
DHS Information Quality Guidelines (Mar. 18, 2011),
https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf ............ 7, 10
DOJ Information Quality Guidelines (updated Aug. 6, 2019),
https://www.justice.gov/iqpr/information-quality ................................................................ 7, 10
Jarrod Shobe, Enacted Legislative Findings and Purposes,
86 U. Chi. L. Rev. 1 (2019) ........................................................................................................ 6
John D. Graham, Office of Information and Regulatory Affairs Administrator, OMB’s
Role in Overseeing Information Quality, Remarks to Public Workshop on InformationQuality Guideline (Mar. 21, 2002),
https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/infoquality_march21.pdf ................................................................................................................. 26
Russell T. Vought, Improving Implementation of the Information Quality Act M-19-15
(Apr. 24, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-1915.pdf ........................................................................................................................ 7, 23, 24–25

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TABLE OF AUTHORITIES
(continued)
Page(s)
Regulations
Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Disseminated by Federal Agencies; Republication, 67 Fed. Reg. 8,452
(Feb. 22, 2002) ................................................................................................................... passim
Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry into the
United States, 82 Fed. Reg. 8,977 (Jan. 27, 2017); ................................................................... 2
Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the
United States, 82 Fed. Reg. 13,209 (Mar. 6, 2017) .................................................................... 3

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INTRODUCTION
Congress has rightly decided that a functioning democracy requires the federal
bureaucracy to be truthful when it speaks to the public. Defendants—the Department of Justice
(“DOJ”) and the Department of Homeland Security (“DHS”) (together, the “Agencies”)—left
truth by the wayside when they published Executive Order 13780: Protecting the Nation from
Foreign Terrorist Entry into the United States, Initial Section 11 Report (the “Report”). The
Report purports to soberly deliver factual and statistical information about foreign nationals
convicted of certain crimes in the United States. In reality, the Report falsely portrays
immigrants as the primary perpetrators of terrorism and other crimes. As a communication of
factual information, the Report implicates the congressionally-mandated requirements of the
Information Quality Act (“IQA”)—and fails them completely.
The Agencies ignored internal warnings about the doubtful quality of their sources in
preparing the Report, and the result is rife with distortions and outright inaccuracies. Analysis
by the nonpartisan Government Accountability Office (“GAO”) has revealed that the Report
inflates the incidence of terrorism committed by those not born in the United States by a factor of
three, even before accounting for the fact (ignored in the Report) that most incidents of terrorism
in the United States have been committed by citizens of this country. The Report is so
egregiously misleading, in fact, that in the face of Plaintiffs’ challenge the Agencies took the rare
step of admitting error.
The Report remains publicly available on the Agencies’ websites, however—uncorrected.
Instead of bringing the Report into compliance with the congressionally-mandated information
quality standards of “quality, objectivity, utility, and integrity,” Pub. L. 106-554 § 515(a), (b),
114 Stat. 2763A-153–54 (Dec. 21, 2000), codified at 44 U.S.C. § 3516 note, the Agencies have
merely offered vague promises to do better in the future. The IQA requires more: the Act
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imposes procedural standards as well as substantive ones, and demands that the Agencies resolve
Plaintiffs’ request for correction in a manner “appropriate for the nature and timeliness of the
information involved.” 67 Fed. Reg. 8,458 (Feb. 22, 2002). The refusal to correct a false and
misleading Report being used in a live policy debate does not meet that standard.
The Agencies’ actions under the IQA are, like any other agency action, subject to judicial
review under the APA. It is therefore a non sequitur for the Agencies to argue, as they do, that
the IQA does not itself create a private right of action. Section 706 ordains judicial review in the
usual way. Here, that means the Court should evaluate under § 706(2) whether the Agencies
acted improperly in determining that the Report complies with the IQA and does not warrant
correction. The Agencies are equally wrong in asserting that Plaintiffs lack standing to bring this
APA claim. Plaintiffs are indisputably “affected persons” under the IQA, with a legal right to
“obtain correction,” who have been denied the procedural remedy afforded by statute. Plaintiffs
have adequately pleaded both informational and procedural standing.
The Report is propaganda masquerading as fact. To paraphrase the well-known adage,
agencies are entitled to their own opinions (and policy preferences), but not to their own facts.
Congress codified this common-sense principle in the IQA, and courts may enforce it through
the APA. This Court should respect Congress’s instructions and deny the motion to dismiss.
BACKGROUND
I.

Factual Background
A week after taking office, President Donald Trump promulgated Executive Order

13769, Protecting the Nation from Foreign Terrorist Entry into the United States (“EO-1”),
which followed through on a campaign promise by imposing an immediate temporary ban on
entry by nationals of several overwhelmingly Muslim countries and all refugees. See generally
82 Fed. Reg. 8,977 (Jan. 27, 2017); Amended Complaint ¶ 40 (Dkt. 36) (“AC”). Courts quickly
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enjoined EO-1; rather than defend it, the President tried again, issuing Executive Order 13780,
similarly called Protecting the Nation from Foreign Terrorist Entry into the United States, 82
Fed. Reg. 13,209 (Mar. 6, 2017) (“EO-2”). AC ¶ 49. EO-2 made minor changes to the
immigration provisions of EO-1 while continuing its bans on entry. EO-2 § 2.
In a purported attempt to be “more transparent with the American people,” and to “more
effectively implement policies and practices that serve the national interest,” Section 11 of EO-2
required DHS, in consultation with DOJ, to “make publicly available” several categories of data:
i.

“foreign nationals in the United States” charged, convicted of, or removed from
the United States based on “terrorism-related offenses”;

ii.

“foreign nationals in the United States radicalized after entry” who either
engaged in terrorism or provided material support for terrorist organizations;

iii.

“acts of gender-based violence against women, including honor killings”; and

iv.

“any other information relevant to public safety and security,” including the
immigration status of foreign nationals “charged with major offenses.”

AC ¶¶ 42, 49; EO-2 § 11.
At the time, the FBI had already collected some of this data by comparing its own
investigation files with a list prepared by DOJ concerning certain international terrorism-related
offenses between September 11, 2001 and December 31, 2016. AC ¶¶ 44-47. The FBI
concluded that 392 or 393 of the 553 persons on DOJ’s list were born abroad. Id. ¶¶ 44, 46.
President Trump seemingly referenced this work when asserting in an address to Congress that,
per DOJ data, “the vast majority of individuals convicted of terrorism and terrorism-related
offenses since 9/11 came here from outside of our country.” Id. ¶ 47.
On its face, the President’s statement to Congress was false: the majority of terrorist acts

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(and convictions) in the United States are acts of domestic terrorism committed by persons born
in the United States. See AC ¶ 75. But even if the President meant to reference international
terrorism—viz., terrorism that “transcend[s] national boundaries,” 18 U.S.C. § 2331(1)—his
statement still was badly misleading. DOJ’s National Security Division included a preambular
warning that the DOJ list included anyone charged with a terrorism-related offense “regardless
of the offense of conviction,” and that it also included dozens of individuals prosecuted in
investigations following 9/11 “regardless of whether investigators developed or identified
evidence that they had any connection to international terrorism.” Id. ¶ 44. And per the thenChief of Staff to the FBI Director, the FBI’s own list “likely contains gaps or errors” because
“database checks are limited in their ability to accurately identify a date/place of birth.” Id. ¶ 46.
EO-2’s September 12, 2017 deadline for the Section 11 report came and went with no
publication. AC ¶ 52; see also EO-2 §§ 11, 14. Media reports suggest that around that time and
behind the scenes, a senior DOJ official rejected an FBI report finding that refugees did not
present a significant threat to the United States on the basis that the Attorney General “doesn’t
agree with the conclusions.” AC ¶ 51. Eventually, however, as the Administration renewed
efforts to pass stricter immigration laws, Defendants published the Report, on January 16, 2018.
See AC Ex. 1. The Report purports to supply the data for the canard that immigrants are
primarily responsible for terrorism in the United States.
The Report’s principal conclusion is that 402 of 549 people (roughly 73%) convicted of
international terrorism-related charges from September 11, 2001 through December 31, 2016
were “foreign-born.” AC ¶ 53. Report at 2. Of those 402 “foreign-born” individuals, the Report
asserts, 148 were naturalized U.S. citizens and 254 were foreign nationals. Id. The Report
provides detailed, supposedly “illustrative” descriptions of eight of the 402 individuals. Id. The

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Report also estimates that 23 to 27 “honor killings” and 1,500 “forced marriages” occurred every
year in the United States between September 11, 2001 and December 31, 2016. Id. Based on an
outside study, it surmises that 91% of these honor killings occurred because the victim was
perceived as “too Westernized.” Id.
The Report’s flaws are obvious. The Agencies cherry-pick information, present that
information in a biased manner, and include outright substantive errors—advancing the
Administration’s predetermined narrative that immigration is a threat to national security. The
Report inflates the proportion of individuals in focus by excluding domestic terrorism
convictions and reporting convictions of “foreign-born” individuals (instead of the “foreign
nationals” called for by EO-2). (When the GAO did a similar analysis, it concluded that just
28% of those convicted of a terrorism-related offense were foreign nationals. AC ¶ 78.) The
Report fails to provide the requisite context for the figures provided by omitting DOJ’s own
caveats and by failing to release the underlying data. Id. ¶¶ 75, 84. The “illustrative examples”
in the Report are not representative at all, but are instead handpicked to further the narrative that
refugees are dangerous and to demonize certain pathways to immigration that are disfavored by
this administration (i.e., family-based immigration and the visa lottery). Id. And the Report’s
gender-based violence statistics are wrong, drawn from a “study” commissioned by an antiMuslim critic that was described by its own author as “not terribly scientific.” Id. Because of
these and other errors, the Report fails to provide the truthful and objective information that
readers expect when the government publishes facts. Id.
II.

The Information Quality Act
EO-2 required that the Report’s dissemination of information comply with all “applicable

laws.” EO-2 § 11. One such law is the IQA, which Congress passed in 2000 as the last in a

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series of expansions to the Paperwork Reduction Act (“PRA”).1 See Pub. L. 106-554 § 515(a),
114 Stat. 2763, 2763A-72 (Dec. 21, 2000) codified at 44 U.S.C. § 3516 note.
In the latest iteration of the PRA, Congress explained its intent to improve the “quality”
of information government agencies were disseminating, as well as its “public benefit” and
“utility.” See Pub. L. 104-13 § 2, 109 Stat. 163, 163–64 (May 22, 1995) codified at 44 U.S.C.
§ 3501. Congress wanted agencies “responsib[le] and accountab[le] . . . to . . . the public for
implementing the . . . information resources management . . . and related policies and guidelines
established under” the PRA. Id. Congress built on this framework in the IQA. That Act directs
OMB to exercise its rulemaking authority under the PRA to promulgate guidelines that “ensur[e]
and maximiz[e] the quality, objectivity, utility, and integrity of information (including statistical
information) disseminated by Federal agencies.” See Pub. L. 106-554 § 515(a). These
guidelines “shall apply to the sharing by Federal agencies of . . . information disseminated by
Federal agencies.” Id. And federal agencies must permit “affected persons to seek and obtain
correction” of information “maintained and disseminated by the agency” that does not comply
with OMB’s guidelines. Pub. L. 106-554 § 515(b)(1), (b)(2)(B).
OMB promulgated the requisite IQA guidelines, after notice and comment, on February
22, 2002. See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by Federal Agencies; Republication, 67 Fed. Reg. 8,452
(Feb. 22, 2002) (“OMB Guidelines”). The OMB Guidelines require that agencies examine any
publicly disseminated information for compliance with the following three requirements:
1

The Agencies characterize the IQA as a “note to the Consolidated Appropriations Act of 2001.” Mot. at 3. It is in
fact section 515 of that Act. It is only a note in the United States Code—and codification decisions are made by the
unelected Office of the Law Revision Counsel (ORLC), not Congress. See United States v. Welden, 377 U.S. 95, 98
n.4 (1964) (“Where, as here, the ‘change of arrangement’ [of a law] was made by a codifier without the approval of
Congress, it should be given no weight.”). As one commentator recently noted, “the OLRC regularly hides away in
notes some of the most important text that Congress enacts.” Jarrod Shobe, Enacted Legislative Findings and
Purposes, 86 U. Chi. L. Rev. 1, 24 (2019).

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a. Objectivity - examining (i) whether the information’s presentation is “accurate,
clear, complete, and unbiased,” with appropriate context, and (ii) whether the
substance of the information is “accurate, reliable, and unbiased,” including any
statistics’ underlying data. Id. at 8459.
b. Utility - examining “uses of the information not only from the perspective of the
agency but also from the perspective of the public.” Id.
c. Integrity - protecting access to information in order to ensure that it “is not
compromised through corruption or falsification.” Id. at 8460.
The Agencies, too, published their own IQA guidelines, which provided for agency adjudications
of IQA petitions. DOJ Information Quality Guidelines (updated Aug. 6, 2019)2; DHS
Information Quality Guidelines (Mar. 18, 2011).3
Earlier this year, OMB issued a memorandum chastising agencies for “fail[ing] to
respond fully” to IQA challenges. See Russell T. Vought, Improving Implementation of the
Information Quality Act M-19-15 (Apr. 24, 2019), at 1, 10 (“2019 OMB Memo”).4 Reaffirming
the principles in the Guidelines, OMB required agencies to update their IQA policies and
clarified that IQA petition responses must “mak[e] clear . . . the data underlying the challenged
information, the methodologies the agency used to analyze the data, the reasons for use of such
methodologies, and any peer reviews addressing the agency’s analysis.” Id. at 10.
III.

Procedural History
On February 8, 2018, Plaintiffs filed identical administrative petitions with DOJ and DHS

under the Agencies’ IQA guidelines (the “Petition”) detailing how the Report fails to fulfill the

2

https://www.justice.gov/iqpr/information-quality.
https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf.
4
https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf
3

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IQA’s objectivity, utility, and integrity standards under OMB’s Guidelines. Plaintiffs requested
that the Agencies either retract the Report or make several specific corrections, including
providing additional context. AC ¶¶ 69, 75-77.
The Agencies did not respond to the Petition, and so Plaintiffs filed this action seeking to
enforce the Agencies’ legal obligation to respond. See Dkt. 1. On June 19, 2018—71 days after
the Agencies’ deadline for responding—the Agencies informed Plaintiffs that they needed
additional time to resolve the Petition. AC ¶¶ 79-80. The Agencies ultimately denied the
Petition days before moving to dismiss this action. Id. ¶ 81. The Court stayed the case while
Plaintiffs filed identical administrative appeals with each agency. Id. ¶ 83; Dkts. 19, 24, 27.
The Agencies denied Plaintiffs’ appeals in separate letters dated December 21, 2018, and
February 14, 2019. AC ¶¶ 91, 93. The Agencies rejected some of Plaintiffs’ contentions and
failed to respond to others, but made several notable concessions. The Agencies admitted
outright that their gender-based violence data was wrong and promised that in future reports they
would release the data underlying the Report’s key terrorism claims. They also promised that
future reports would provide some of the requested context surrounding the conviction data and
more varied “illustrative” examples. Id. ¶¶ 94-97. Despite these rare admissions, the Agencies
affirmed their denial of the Petition and declined to change one word of the Report. Id. ¶ 95.
Plaintiffs filed an Amended Complaint challenging the Agencies’ denial of their Petition
on March 29, 2019, Dkt. 36, and the Agencies moved to dismiss on July 12, 2019, Dkts. 38, 40
(“Mot.”).
ARGUMENT
I.

Pleading Standard
When considering a motion to dismiss under Rule 12(b)(6), courts “accept as true the

well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the
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plaintiff's favor and determine whether the complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” People To End Homelessness, Inc. v. Develco Singles
Apartments Assocs., 339 F.3d 1, 5 (1st Cir. 2003). The same is true for a motion to dismiss for
lack of standing. See Gustavsen v. Alcon Labs., Inc., 903 F.3d 1, 7 (1st Cir. 2018) (discussing
“same plausibility standard”).
II.

Plaintiffs Have Standing to Pursue This Action
Standing is “part of the case-or-controversy requirement of Article III.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs have adequately alleged all three
constitutional requirements—injury in fact, causation, and redressability, see id. at 560–61—
under both informational and procedural standing theories.
A.

Plaintiffs Have Adequately Alleged Informational Standing

Under the doctrine of informational standing, a plaintiff “suffers an ‘injury in fact’ when
the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.”
Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998); see also Pub. Citizen v. U.S. Dep’t of
Justice, 491 U.S. 440, 449 (1989) (holding that failure to obtain information subject to disclosure
“constitutes a sufficiently distinct injury to provide standing to sue”); Havens Realty Corp. v.
Coleman, 455 U.S. 363, 374 (1982) (informational standing to enforce the Federal Housing Act);
Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542 (6th Cir.
2004) (same under Clean Water Act). Because the IQA imposes an explicit disclosure
requirement on the Agencies in response to petitions for correction, Plaintiffs have standing to
challenge the Agencies’ refusal to comply with that obligation.
1.

Plaintiffs have standing to challenge the Agencies’ refusal to disclose
information in violation of a statutory right

The IQA grants “affected persons” the statutory right to, in an administrative proceeding,
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“seek and obtain correction of information . . . disseminated by the agency that does not comply
with” its standards. See Pub. L. 106-554 § 515(b)(2)(B) (emphasis added). The Agencies do not
dispute that Plaintiffs are “affected persons” under the Agencies’ broad construction of the term,
which includes anyone who “may use, benefit, or be harmed” by the Report. See DOJ
Information Quality Guidelines; DHS Information Quality Guidelines at 9. Plaintiffs write about
criminal justice, national security, terrorism, and/or immigration, all of which are impacted by
the false claims in the Report. See AC ¶¶ 71-72, 74. The Brennan Center and Mr. Wittes have
written about the Report specifically, meaning they unquestionably have “used” it. See id.
Despite the fact that Plaintiffs duly filed their Petition, the Agencies have withheld the
“correct[ed] . . . information” sought. Plaintiffs have thus “fail[ed] to obtain information which
must be publicly disclosed pursuant to” the IQA. Akins, 524 U.S. at 21; see also Friends of
Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (courts find standing where a plaintiff has
been “deprived of information that, on its interpretation, a statute requires the government or a
third party to disclose to it”); Becker v. FEC, 112 F. Supp. 2d 172, 180 (D. Mass. 2000) aff’d 230
F.3d 381 (1st Cir. 2000) (“[T]he injury-in-fact the Court found in Akins hinged on the denial of
information which the statute required be made public.”). To be sure, Plaintiffs have received
some information from the Agencies. But critically, Plaintiffs have not received a Report that
meets the Agencies’ IQA obligations to make “appropriate” corrections or that includes the
additional information Plaintiffs have requested about the Report. See AC ¶ 77a, b, d, f; 67 Fed.
Reg. 8,459 (requiring appropriate context); see also House v. Dep’t of Commerce, 11 F. Supp. 2d
76, 85 (D.D.C. 1998), appeal dismissed 525 U.S. 316 (1999) (“receipt of the wrong information
is no less of an injury than failure to receive any information at all”).
The Agencies contend that Plaintiffs lack “any legal right to information or [the Report’s]

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correctness” based on the IQA. Mot. at 13 (quoting Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th
Cir. 2006) and citing Family Farm Alliance v. Salazar, 749 F. Supp. 2d 1083, 1103 (E.D. Cal.
2010)). The argument is both wrong and irrelevant. It is wrong because, at the very least, the
IQA requires agencies to adjudicate the rights of “affected persons” to “obtain[] . . . correction”
and enforce the OMB Guidelines. Id. It is irrelevant because Plaintiffs have a legal right to
bring their claims under the APA, as they do (AC ¶¶ 99-122), whatever the IQA provides: the
APA allows suits for violations of law whether or not that law would independently grant the
plaintiff a freestanding legal right to sue. See, e.g., Scanwell Labs., Inc. v. Schaffer, 424 F.2d
859, 866–67 (D.C. Cir. 1970) (plaintiff “adversely affected by [an] asserted misinterpretation of
a statute” by an agency had standing to sue under the APA even though the violated statute was
intended “for the protection of the government” and vested no independent legal right in
plaintiff); see also, e.g., Citizens for Responsibility & Ethics in Washington v. Trump, __ F.3d
__, 2019 WL 4383205, at *13 (2d Cir. Sept. 13, 2019) (whether a substantive provision of law
was meant to benefit persons like the plaintiffs is “not relevant to whether the Plaintiffs have met
the three elements that form the ‘irreducible constitutional minimum of standing’”).5 The Salt
Institute case on which the government principally relies is thus inapposite because the court
examined solely whether the IQA alone granted legal rights to the plaintiffs (not to mention a
challenge to studies conducted by a third party, not the agency-defendant). 440 F.3d at 157.
2.

Plaintiffs have suffered the type of harm Congress sought to prevent by
requiring disclosure

Some courts have observed that “[i]n some instances . . . a plaintiff may need to allege

5
It is undisputed that Plaintiffs fall within the IQA’s zone of interests, but if the government did dispute
that question it would bear only on Plaintiffs’ ability to bring an APA action, not their standing. See Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 & n.4 (2014) (question whether plaintiff “falls within the
class of plaintiffs whom Congress authorized to sue” concerns whether plaintiffs have a “cause of action,” not their
standing); Mot. at 14 n.4 (asserting that these are “two separate questions”).

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that nondisclosure has caused it to suffer the kind of harm from which Congress, in mandating
disclosure, sought to protect individuals or organizations like it.” Friends of Animals II, 828
F.3d at 992. As the Supreme Court has instructed, it is sufficient that the agency has deprived
the plaintiff of information whose disclosure is mandated by statute. See id.; Akins, 524 U.S. at
21–22. But if a heightened showing of “harm” were necessary Plaintiffs have made it.6
As discussed, the IQA was passed to guard against the harm caused by the dissemination
of dubious information by federal agencies and, conversely, to improve the responsibility and
accountability of federal agencies to the public. Supra at 5–6; see United to Protect Democracy
v. Presidential Advisory Comm’n on Election Integrity, 288 F. Supp. 3d 99, 107 (D.D.C. 2017)
(PRA was intended to allow “the public [to] . . . hold the government to account”). Plaintiffs are
harmed by the receipt of inaccurate information that, if corrected, they would use to hold the
government accountable and educate the public. In United to Protect Democracy, the court
concluded that one of the plaintiffs suing here had informational standing under the PRA because
it would have altered its advocacy strategies and used the requested information to “educate the
public on [its] implications.” Id. The same is true here. See AC ¶ 72.
Moreover, the Agencies’ failure to comply with the IQA and OMB’s guidance has
impaired Protect Democracy’s and the Brennan Center’s “missions to prevent the spread of
disinformation, especially in the national security context,” and required them to “undertake
material efforts to educate the public on the implications of the Report and to publicly correct its
falsehoods and misstatements.” AC ¶ 72. See Public Citizens, 491 U.S. at 449 (standing to allow

6
In Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium, the court concluded
that “informational harm alone is insufficient to establish standing.” 836 F. Supp. 45, 56 (D. Mass. 1993). But the
Supreme Court subsequently clarified that a “Plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain
information which must be publicly disclosed pursuant to a statute,” Akins, 524 U.S. at 21–22, a holding the
Supreme Court has recently reaffirmed, see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549–50 (2016) (in cases like
Akins, “a plaintiff . . . need not allege any additional harm beyond the one Congress has identified”).

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public interest group “to monitor its workings and participate more effectively in the judicial
selection process” adequate in the informational standing context); Friends of Animals v. Jewell,
824 F.3d 1033, 1042 (D.C. Cir. 2016) (“Friends of Animals I”) (organization has standing to
seek disclosure of information when information would allow it to “engage in related advocacy
efforts”); People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087,
1095 (D.C. Cir. 2015).
These efforts, as well as the “considerable resources” Protect Democracy and Brennan
Center spent “investigating the Report’s claims in an attempt to understand the full breadth of its
inaccuracy,” have collectively “drained resources that Protect Democracy and Brennan Center
could have dedicated to their other advocacy efforts.” See AC ¶ 72. This expenditure to
counteract the Agencies’ failure independently supports standing. Havens Realty Corp., 455
U.S. 363 at 379 (“drain on the organization’s resources” sufficient to support informational
standing); Common Cause Ind. v. Lawson, __ F.3d __, 2019 WL 4022177, at *5–6 (7th Cir. Aug.
27, 2019) (organization dedicated resources to combat resulting “voter confusion”); Nat’l
Women’s Law Ctr. v. OMB, 358 F. Supp. 3d 66, 80 (D.D.C. 2019) (public interest group “us[ing]
their resources to counteract the harm” of failure to disclose information).
3.

These injuries are not a generalized grievance

The Agencies’ final argument against standing is that Plaintiffs have no “direct stake in
the outcome of the litigation” and merely assert a “generalized grievance held by other members
of the public.” Mot. at 13–14. That is wrong, as discussed above. The Agencies base this
argument on only two cases that do not involve informational standing, one of which affirmed
standing. See Adams v. Watson, 10 F.3d 915, 922 (1st Cir. 1993) (plaintiffs pleaded “competitor
standing” based on future economic harm); United States v. AVX Corp., 962 F.2d 108, 117 (1st
Cir. 1992) (vague and conclusory allegations of environmental harm to the plaintiff’s members
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insufficient to support standing). In fact, courts routinely reject this style of objection in the
context of informational standing: any other result would render meaningless most, if not all,
statutory disclosure requirements, including FOIA and the Federal Advisory Committees Act.
See Public Citizen, 491 U.S. at 449 (“Our decisions interpreting the Freedom of Information Act
have never suggested that those requesting information under it need show more than that they
sought and were denied specific agency records.”). As the Sixth Circuit has explained, a demand
for information “might be a ‘generalized grievance’ in the sense that up to the point they request
it, the plaintiffs have an interest in the information shared by every other person, but it is not an
abstract grievance in the sense condemned in Akins: the injury alleged is not that the defendants
are merely failing to obey the law, it is that they are disobeying the law in failing to provide
information that the plaintiffs desire and allegedly need.” Am. Canoe Ass’n, 389 F.3d at 545–47.
This is all the more true in the context of the IQA, which already confines claimants to “affected
persons.” See supra at 10.
The IQA did not require the Agencies to publish the Report—but once they did, they
triggered their substantive obligations under the IQA as well as their obligation to supply an
appropriate response to requests for correction. Pub. L. 106-554 § 515(b)(2); United to Protect
Democracy, 288 F. Supp. 3d at 106 (statutory requirement that agencies publish an analysis of
any proposed information collection before instituting one sufficient to support informational
standing). The Agencies’ failure to produce the corrected and additional information requested in
the Petition establishes Plaintiffs’ standing.
B.

Plaintiffs Have Adequately Alleged Procedural Standing

Plaintiffs have standing for the independent reason that the Agencies have violated their
statutory right to “seek and obtain” a correction to the Agencies’ Section 11 Report. In order to
allege procedural standing, a Plaintiff must demonstrate both a procedural right as well as an
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injury. See Munoz-Mendoza v. Pierce, 711 F.2d 421, 425–26 (1st Cir. 1983) (Breyer, J.).
Nevertheless, the usual Article III requirement that the concrete harm be “immediate” is relaxed,
and so all Plaintiffs must show is that the violated procedure was “designed to protect some
threatened concrete interest personal to Plaintiffs.” See Nulankeyutmonen Nkihtaqmikon v.
Impson, 503 F.3d 18, 26–27 (1st Cir. 2007) (quoting Lujan, 504 U.S. at 572–73 nn.7–8).
Plaintiffs have alleged that Agencies have violated Plaintiffs’ procedural right to
correction of the Report. The IQA requires that information disseminated by federal agencies
satisfy the standards of objectivity, utility, and integrity promulgated by OMB, and that agencies
establish administrative mechanisms allowing “affected persons” to “seek and obtain correction
of information maintained and disseminated by the agency that does not comply with” those
Guidelines. See Pub. L. 106-554 § 515(b)(2)(B) (emphasis added). Again, the Agencies do not
dispute that Plaintiffs are “affected persons” who followed the appropriate administrative
procedures. AC ¶ 70. By refusing to correct the Report, the Agencies have limited Plaintiffs’
procedural right to not only “seek,” but also to “obtain” correction.
Plaintiffs have suffered concrete harm from the Agencies’ unilateral denial of a
congressionally-mandated remedy to an “affected persons” who filed a proper administrative
proceeding and therefore had a right to obtain relief. Supra at 9–11; Pub. L. 106-554
§ 515(b)(2)(B); see Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1042–43 (9th Cir.
2017) (recognizing courts partially defer to Congress’ judgment in light of its “role in elevating
concrete, de facto injuries previously inadequate in law “to the status of legally cognizable
injuries”). In the absence of correction by the Agencies, Plaintiffs must now expend their own
resources to correct the public record as best as they possibly can. See supra at 11–13.
C.

Causation and Redressability

The Agencies briefly suggest that Plaintiffs have not shown redressability or traceability.
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Mot. at 13; but cf. Lujan, 504 U.S. at 572 n.7 (a plaintiff “who has been accorded a procedural
right to protect his concrete interests can assert that right without meeting all the normal
standards for redressability”). But as explained supra, Plaintiffs’ injuries stem entirely from the
Agencies’ failure to correct their false Report. With a corrected Report, Plaintiffs would no
longer need to educate the public on its falsity or expend resources to analyze its flaws.
Plaintiffs’ injury is plainly traceable to the Agencies’ denial of the Petition and therefore
redressable by a court order vacating that denial and remanding the case back to the Agencies to
reconsider an appropriate response. See Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007)
(redressability is “some possibility that the requested relief will prompt the injury-causing party
to reconsider the decision that allegedly harmed the litigant”); Collins v. Mnuchin, __ F.3d __,
2019 WL 4233612, at *12 (5th Cir. Sept. 6, 2019) (en banc) (finding causation and redressability
even if the agency’s decision would have been the same but for the claimed violation).
III.

The APA Provides for Judicial Review of the Agencies’ Denial of Plaintiffs’ Petition
“The Administrative Procedure Act embodies a basic presumption of judicial review, and

instructs reviewing courts to set aside agency action that is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Dep’t of Commerce v. New York, 139 S.
Ct. 2551, 2567 (2019) (internal citation omitted) (quoting 5 U.S.C. § 706(2)(A)). The APA
requires the Court to set aside the Agencies’ denial of Plaintiffs’ Petition.
The Agencies do not argue otherwise. Indeed, the Agencies only weakly protest the
allegations that the Report contains false information, doubling down on their claimed distinction
between “false” information and mere “editorial errors.” Mot. at 11 n.3 (“Defendants openly
admitted . . . that certain statistics regarding gender-based violence were due to editorial errors.
Nowhere, however, do Defendants admit that the information was misleading and false.”).
Plaintiffs are at a loss to understand how something can be both an “error”—editorial or
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otherwise—and true. Nothing in the IQA statute or guidance suggests that agencies can only
intentionally violate the IQA. Tellingly, the Agencies do not actually defend this excuse under
the IQA standards, and for good reason; even inadvertent error (whether from sloppy editing,
lackadaisical factual investigation, or honest misunderstanding) is obviously not “accurate,”
“reliable,” or “useful.” See 67 Fed. Reg. 8,459–60. Instead, the Agencies argue that the Court
can never even ask if their actions were lawful because (i) their adjudication of the Petition is not
“final agency action”, and (ii) the IQA itself prevents the Court’s review. Both arguments fail.
A.

The Denial of the Petition Is Final Agency Action.

The APA permits judicial review of “final agency action.” 5 U.S.C. § 704. To evaluate
whether an agency has taken action within the meaning of this language, courts look to whether
the agency has “determined” a party’s “rights or obligations,” or otherwise made a decision
“from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997).
Here, the IQA gives Plaintiffs the right to “seek and obtain” correction when an agency
disseminates information that violates the OMB Guidelines. The Agencies’ denial was an
adjudication of Plaintiffs’ right to obtain that information and forever extinguishes their ability to
obtain it. Hyatt v. Office of Mgmt. & Budget, 908 F.3d 1165, 1172 (9th Cir. 2018) (denial of
plaintiff’s petition under the PRA for a declaration that plaintiff was not obligated to provide
certain information to OMB was final agency action). It is therefore final agency action and
appropriate for adjudication under the APA.
At the very least, the Agencies have determined their own obligations under the APA,
which is enough to qualify as final agency action. In Doe v. Tenenbaum, the court rejected the
argument that an agency’s decision to publish a report must determine the plaintiffs’ legal rights
in order to constitute agency action; where the agency was legally bound to adjudicate whether a
report contained a material inaccuracy, it was sufficient that the decision determined the
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agency’s obligations with respect to publication. 127 F. Supp. 3d 426, 461 (D. Md. 2012). The
test, properly understood, captures any action “by which rights or obligations have been
determined.” Id. In Doe, as here, the agency published a report “mark[ing] the consummation of
an adversarial process,” and the agency made a “determination” that the report satisfied the
specified legal requirements. Id. at 462. Because the agency’s adjudication “determined the
[agency’s] right to prevent publication of . . . misleading and detrimental data,” it was final
agency action. Id. at 463; accord Conservation Law Found., Inc. v. Jackson, 964 F. Supp. 2d
152, 161 (D. Mass. 2013) (final agency action when adjudication determined agency could not
provide funding to plaintiff).
The Agencies’ argument that the denial of an IQA petition does not affect Plaintiffs’ legal
rights recycles the contention that the IQA “does not create any legal right to information or its
correctness.” Mot. at 21 (quoting Salt Institute, 440 F.3d at 159). The Agencies cite several
cases finding that because the IQA vests no legal rights in a petitioner, no “legal consequences
flow” from a denial of the petition. Mot. at 21 (citing Single Stick, Inc. v. Johanns, 601 F. Supp.
2d 307, 317 (D.D.C. 2009) and Am. for Safe Access v. HHS, 2007 WL 2141289, at *4 (N.D. Cal.
July 24, 2007)). This conclusion is no more correct here than in the standing context.
First, the Agencies’ argument again improperly conditions an APA action on the
independent enforceability of a statute. See supra at 11; see Cousins v. Sec’y of the U.S. Dep’t of
Transp., 880 F.2d 603, 606 (1st Cir. 1989) (“The general provisions for judicial review of agency
action, as embodied in the APA” mean “when a plaintiff seeks to enforce a federal statute against
a federal regulatory agency, there is normally no need for an implied private right of action.”).
Courts routinely allow plaintiffs to enforce statutes for which there is no independent judicial
review provision. See, e.g., Bennett, 520 U.S. at 176 (plaintiffs could sue under the APA to

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enforce Endangered Species Act provision when that Act’s own judicial review provision did not
apply).
Second, neither the Agencies nor any case on which the Agencies rely has analyzed
whether the outcome of the adjudication affects the Agencies’ legal rights or obligations. See
supra at 17–18. A Court may review whether the Agencies appropriately determined their own
legal obligations under the IQA and OMB Guidelines, including determination that they are not
obliged to issue a corrected Report. See Sig Sauer, Inc. v. Jones, 133 F. Supp. 3d 364, 369 n.6
(D.N.H. 2015), aff’d sub nom. Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 600 n.1 (1st Cir. 2016)
(“Informal adjudication can qualify as final agency action if the agency has completed its
decision making and no other adequate judicial remedy exists.”).7
B.

The IQA Does Not Frustrate This Court’s Review

It is well-settled that “Congress rarely intends to prevent courts from enforcing its
directives to federal agencies” and that courts “appl[y] a strong presumption’ favoring judicial
review of administrative action.” Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1651 (2015);
accord Abbott Labs. v. Gardner, 387 U.S. 136, 140–41 (1967) (“The APA’s generous review
provisions, must be given a ‘hospitable’ interpretation.”). The Agencies nevertheless argue that
the IQA does not allow for review under the APA because (i) the IQA itself omits provisions for

7

Plaintiffs recognize that in Muslim Advocates v. DOJ, the Magistrate Judge considered the Agencies’ denial of a
different IQA petition involving the Report and found a lack of final agency action. 2019 WL 3254230, at *11
(N.D. Cal. July 19, 2019). There, however, the court did not evaluate whether the Agencies’ adjudication
determined the Agencies’ legal rights and obligations—a sufficiently final action, as discussed in the text above.
And Plaintiffs respectfully submit that the Muslim Advocates court’s analysis of those plaintiffs’ legal rights was
incorrect. See id. at *10. Indeed, as that court itself acknowledged, no court of appeals has embraced the rationale
that an agency IQA adjudication is not final agency action; rather, reviewing courts have elected to affirm on
different grounds. Id. at *9 (citing Harkonen v. DOJ, 800 F.3d 1143, 1149–51 (9th Cir. 2015); Prime Time Int’l Co.
v. Vilsack, 599 F.3d 678, 685 (D.C. Cir. 2010)). Indeed, those courts’ application of Chevron to the OMB
Guidelines reinforces that the Guidelines have an “actual legal effect” such that agency adjudications under the
Guidelines constitute reviewable agency action. See Guedes v. ATF, 920 F.3d 1, 17–18 (D.C. Cir. 2019) cert. pet.
docketed No. 19-296 (Sept. 4, 2019) (noting whether rule is legislative “centrally informs the applicability of
Chevron”); Cal. Communities Against Toxics v. EPA, __ F.3d __ , 2019 WL 3917540 (D.C. Cir. Aug. 20, 2019)
(legislative rules necessarily final agency action).

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review, and (ii) the IQA commits agency adjudications to agency discretion.
1.

The IQA does not impliedly preclude review here

The Agencies first argue that because the IQA creates an administrative mechanism to
challenge agency publications but is silent about judicial review, their administrative
determinations are unreviewable by a court. Mot. at 16–17 (quoting 5 U.S.C. § 701(a)(1)). As
the Agencies concede, however, courts require “clear and convincing evidence” that Congress
intended to insulate agency action from judicial review. Jordan Hosp., Inc. v. Shalala, 276 F.3d
72, 76 (1st Cir. 2002); Centro Presente v. DHS, 332 F. Supp. 3d 393, 405 (D. Mass. 2018)
(requiring “reliable indicator” to preclude review in either “specific” statutory language or
legislative history or “detail of the legislative scheme”). There is no such evidence here.
Silence is not enough to extinguish judicial review. Sierra Club v. Peterson, 705 F.2d
1475, 1478–79 (9th Cir. 1983) (“Mere silence in the statute should not be read as precluding
judicial review under the APA.”); High Country Citizens All. v. Clarke, 454 F.3d 1177, 1199
(10th Cir. 2006) (similar); cf. Dep’t of Transp. & Dev. of La. v. Beaird-Poulan, Inc., 449 U.S.
971, 973 (1980) (mem.) (congressional “silence may not preclude federal judicial review of
federal agency decision”). In creating a presumption of review under the APA, Congress
ensured that it need not expressly legislate judicial review provisions each time it provides an
administrative mechanism. See Cousins, 880 F.2d at 606 (APA “supplant[ed] a variety of preexisting methods for obtaining review that . . . sometimes hindered the efforts of injured persons
to obtain relief.”). Courts accordingly review agency adjudications in cases even absent judicial
review provisions in the authorizing statute. See Hill v. Norton, 275 F.3d 98, 103 (D.C. Cir.
2001) (reviewing agency adjudication under the APA when statute did not “provide a process for
judicial review”); City of Sausalito v. O’Neill, 386 F.3d 1186, 1205 (9th Cir. 2004) (same).
The Agencies principally rely on Block v. Community Nutrition Institute, 467 U.S. 340
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(1984), which they misread to stand for the proposition that in “complex” regulatory schemes,
any time Congress “omi[ts]” an “express” judicial review provision, it insulates agency
adjudication from review. Mot. at 17. There, however, a “complex” regulatory scheme
explicitly authorized just one class of stakeholders to pursue judicial review, and the Court did
not feel free to bypass that choice through the APA. Block, 467 U.S. at 346. The Court
expressly limited its reasoning to “complex scheme[s] of this type.” Id. at 347. There is no
analogous partial provision here. The IQA broadly grants “affected persons” the right to be
involved in the agency’s process, see supra at 10, and is silent on judicial review for all parties.
The APA accordingly applies.
2.

Judicially manageable standards are available to review IQA decisions

Finally, the Agencies argue that even if the IQA does not expressly preclude review,
Congress intended to impliedly preclude judicial review because no judicially manageable
standards can be discerned.8 See Mot. at 18 n.5; see also Muslim Advocates, 2019 WL 3254230,
at *9. But cases inimical to judicial review “are few,” and “typically involve areas where the
very act of reviewing may impede the agency’s ability to carry out its statutory functions,”
NAACP v. Sec’y of Hous. & Urban Dev., 817 F.2d 149, 157 (1st Cir. 1987) (Breyer, C.J.)—the
“categories of administrative decisions that courts traditionally have regarded as ‘committed to
agency discretion.’” Dep’t of Commerce, 139 S. Ct. at 2568 (noting application in context of
decision to decline enforcement and terminate employee for national security reasons). Agencies
may have some discretion in how they ascertain and present factual information, but their
discretion is cabined by the IQA.

8

The Agencies frame their argument as though the Complaint challenged only the timeliness of their response,
rather than their substantive compliance with the IQA. See Mot. at 18 & n.5. This characterization apparently
confuses the initial Complaint for the Amended Complaint. The Agencies’ mistake makes their reliance on Family
Farm Alliance—involving timing of an IQA response, 749 F. Supp. 2d at 1103—irrelevant.

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The APA simply requires a “meaningful statutory standard . . . against which to judge the
exercise of agency discretion.” Watervale Marine Co. v. DHS, 55 F. Supp. 3d 124, 138 (D.D.C.
2014), aff’d 807 F.3d 325 (D.C. Cir. 2015). The plain text of the IQA provides this standard: an
agency’s review must “allow affected persons to seek and obtain correction of information
maintained and disseminated by the agency that does not comply with the guidelines” that OMB
promulgated to “ensur[e] and maximiz[e] the quality, objectivity, utility, and integrity of
information (including statistical information) disseminated by Federal agencies.” Pub. L. 106554 § 515(a), (b)(2)(B). The Guidelines then direct an agency to take corrective measures that
are “appropriate for the nature and timeliness of the information involved.” 67 Fed. Reg. 8,458.
The statute thus supplies a two-step test to determine an agency’s IQA compliance, in which a
court should address first the agency’s application of the IQA’s substantive standards, and
second the remedy it has provided in its IQA adjudication.
First, a court reviews, under the § 706 standard of review, the agency’s determination
that the “information maintained and disseminated by the agency . . . compl[ies] with the
guidelines issued under subsection (a)” effectuating the statutory standards of “quality,
objectivity, utility, and integrity.” Pub. L. 106-554 § 515(a), (b)(2)(B). See Hauod v. Ashcroft,
350 F.3d 201, 206 (1st Cir. 2003) (agency regulations can “provide[] more than enough ‘law’ by
which a court could review” agency’s decision); King v. Office for Civil Rights of U.S. Dep’t of
Health & Human Servs., 573 F. Supp. 2d 425, 428–29 (D. Mass. 2008) (agency regulations
requiring “prompt investigation” when a complaint is filed judicially manageable); see also
Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (“Judicially manageable standards may be
found in formal and informal policy statements and regulations as well as in statutes.”). The
guidelines define those terms in a way that “establish[es] a clear meaning so that both the agency

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and the public can readily judge whether a particular type of information to be disseminated does
or does not meet these attributes.” 67 Fed. Reg. 8,458; see supra at 7. If the OMB Guidelines
are specific enough for the agency and the public to “readily judge” whether certain information
meets the IQA’s information quality standards, they are surely enough for a judge to, as well.
See NAACP, 817 F.2d at 158 (statutory instruction to “administer” agency program “in a manner
affirmatively to further the policies” of “fair housing” judicially administrable).
The APA does not require courts to intrude on policy judgments or matters on which the
agency properly exercises its discretion. For one thing, the IQA applies only to disseminations
of factual information. See 67 Fed. Reg. 8,460 (defining “information” as “any communication
or representation of knowledge such as facts or data”); 2019 OMB Memo at 10 (noting “agencies
should not opine on . . . the agency’s policy position” in IQA response). For another, the Court
can fairly evaluate whether legal constructions adopted by the Agencies are contrary to law. See
5 U.S.C. § 706. The Court can then analyze the Agencies’ application of the IQA as it would
any other review of agency action: by asking whether their actions are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Sig Sauer, 826 F.3d at 601.
Courts have abundant competence to apply this familiar standard: “A decision is arbitrary
and capricious if the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.” Craker v. DEA, 714 F.3d
17, 26 (1st Cir. 2013). And while the APA does not authorize courts to re-weigh an agency’s
factual determinations, see Nw. Bypass Grp. v. U.S. Army Corps of Eng’rs, 470 F. Supp. 2d 30,
39 (D.N.H. 2007) (rejecting application of “substantial evidence” test to informal adjudication),

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some factual determinations are so patently unsupported or contrary to the evidence that they are
themselves arbitrary and capricious, see Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 745 F.2d 677, 684 (D.C. Cir. 1984) (Scalia, J.) (factual
judgment “arbitrary” if “supported only by evidence that is not substantial in the APA sense”).9
The Court need look no further than the specific challenges raised in this lawsuit to
conclude that reviewing the Agencies’ IQA adjudication lies in the heartland of APA review.
For example, the Amended Complaint asks this Court to review whether the Agencies’
explanations “runs counter to the evidence before” it. Craker, 714 F.3d at 26; see AC ¶ 97
(Report misstates the number of forced marriages). It asserts that the Agencies simply ignored
certain of Plaintiffs’ objections to the Report. See Int’l Fabricare Inst. v. EPA, 972 F.2d 384,
389 (D.C. Cir. 1992) (agency’s action may be vacated where it has “failed to respond to specific
challenges that are sufficiently central to its decision”); AC ¶ 97 (identifying issues to which the
Agencies failed to respond in their denial of the Petition). And it asks whether the Agencies
failed to “consider the relevant factors,” including applying an incorrect legal standard, see
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 371 (2018) (“[F]ederal courts
routinely assess . . . whether a decision was based on a consideration of the relevant factors.”);
Augat, Inc. v. Tabor, 719 F. Supp. 1158, 1160 (D. Mass. 1989) (vacating action when legal
premise was “not a correct statement of the law”); AC ¶ 68 (noting adjudication failed to account
for fact that the Report was “highly influential” under OMB Guidelines). At bare minimum, any
proper response to the Petitions must acknowledge these deficiencies. See 2019 OMB Memo at

9

The Agencies ask this Court to hold that Congress implicitly meant to completely insulate all agency information
disseminations from review even in the face of deliberate falsification, and even if the information is as essential as
the census, 13 U.S.C. § 41, employment data, 29 U.S.C. §§ 2, 49l-2, criminal justice statistics, 34 U.S.C. § 10132, or
weather forecasts, 15 U.S.C. § 313. This interpretation cannot be squared with Congress’ goals in the IQA and its
enactment of a procedure for enforcing those goals.

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10 (requiring “a point-by-point response to any data quality arguments”).
Second, the IQA requires that an agency allow an “affected person[] to seek and obtain
correction” of the noncompliant information. Pub. L. 106-554 § 515(b)(2)(B). OMB has
interpreted this mandate to allow agencies some discretion; agencies “are required to undertake
only the degree of correction that they conclude is appropriate for the nature and timeliness of
the information involved.” 67 Fed. Reg. 8,458. This, too, provides the Court with a judicially
manageable standard—the agency must account for the propriety of its decision based on the
“nature and timeliness” of the information. As then-Judge Breyer explained, “the fact that an
agency enjoys broad discretionary powers does not mean judicial review is forbidden.” Dugan v.
Ramsay, 727 F.2d 192, 195 (1st Cir. 1984). Courts have found review under laws giving
considerably more discretion to an agency judicially manageable. See Ward v. Skinner, 943 F.2d
157, 159–60 (1st Cir. 1991) (statute providing agency may grant waiver “if the Secretary
determines that such waiver is not contrary to the public interest and is consistent with the safe
operation of motor vehicles”); Barlow v. Collins, 397 U.S. 159, 165 (1970) (statute authorizing
agency to promulgate regulations it “may deem proper”); see also Marshall Cty. Health Care
Auth. v. Shalala, 988 F.2d 1221, 1223 (D.C. Cir. 1993) (statue permitting exceptions “as the
Secretary deems appropriate”); State of Iowa ex rel. Miller v. Block, 771 F.2d 347, 349 (8th Cir.
1985) (statute requiring action “if the Secretary determines” certain factual predicates).
In Muslim Advocates, the court suggested that the OMB Guidelines’ use of “discretionary
language” for the requisite correction means that the Guidelines “provide[] for complete agency
discretion” in adjudicating IQA petitions. 2019 WL 3254230, at *8. With respect, that
conclusion does not follow from the premise. It is well established that a grant of discretion does
not altogether immunize agency action from judicial review. See, e.g., Dep’t of Commerce, 139

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S. Ct. at 2577 (reviewing statute providing agency could take census “in such form and content
as [it] may determine” for compliance with statute and abuse of discretion); 5 U.S.C. § 706(2)(A)
(permitting review for “abuse of discretion”). At minimum, the Agencies must adequately
explain how the “nature and timeliness” of the relevant information makes any correction
inappropriate. See Mach Mining 135 S. Ct. at 1651 (requirement that agency “shall endeavor” to
eliminate illegality through “methods of conference, conciliation, and persuasion” provided
judicially manageable standards for review because agency could not “decline[] to make any
attempt to conciliate a claim”); Texas v. United States, 809 F.3d 134, 168 (5th Cir. 2015) (“The
mere fact that a statute grants broad discretion to an agency does not render the agency’s
decisions completely unreviewable under the ‘committed to agency discretion by law’ exception
unless the statutory scheme, taken together with other relevant materials, provides absolutely no
guidance as to how that discretion is to be exercised.”). Indeed, the official over whose signature
the OMB Guidelines were promulgated advised shortly thereafter that courts should enforce the
IQA at least in “cases of egregious agency mismanagement.” See John D. Graham, Office of
Information and Regulatory Affairs Administrator, OMB’s Role in Overseeing Information
Quality, Remarks to Public Workshop on Information-Quality Guideline (Mar. 21, 2002).10
The Petition here is, again, a case in point. The Agencies have admitted at least one
outright error, and conceded that certain of the Petition’s critiques were “well-taken” and that
other corrections would “promote the perception of objectivity” required by the IQA—but
nevertheless have denied the request for correction. See AC ¶ 94. The Agencies never bothered
to explain why correction would not be “appropriate” under OMB’s criteria or otherwise. And
here, where the Agencies are obliged to conduct and in fact undertook an informal adjudication

10

https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/info-quality_march21.pdf.

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and appeal, recognizing that a court may review that agency action within the boundaries of
§ 706 obviously would not “impede the agency’s ability to carry out its statutory functions.” See
NAACP, 817 F.2d at 157.
The Agencies flouted their responsibilities under the IQA when they issued and refused
to correct, augment, or explain a Report that misleads the public. They have rendered the right
Congress granted to petitioners to “obtain correction” illusory, and this Court is able to
determine whether that is “an abuse of discretion,” “contrary to law,” or a failure to
“observ[e] . . . procedure required by law.”
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request this Court deny in its entirety the
Agencies’ Motion to Dismiss.
Dated: September 13, 2019
/s/ Meaghan VerGow
Meaghan VerGow
O’MELVENY & MYERS LLP
Pro Hac Vice
1625 Eye Street, N.W.
Washington, DC 20006
Telephone: (202) 383-5300
Facsimile: (202) 383-5414
mvergow@omm.com

Benjamin L. Berwick
(D. Mass. Bar. No. 679207)
PROTECT DEMOCRACY PROJECT, INC.
15 Main St.
Suite 312
Watertown, Massachusetts 02472
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
ben.berwick@protectdemocracy.org

Shane A. Hunt
O’MELVENY & MYERS LLP
Pro Hac Vice
Time Square Tower
7 Times Square
Telephone: (212) 326-2000
Facsimile: (212) 326-2061
shunt@omm.com

Justin Florence
(D. Mass. Bar. No. 667129)
Jamila G. Benkato
Pro Hac Vice
PROTECT DEMOCRACY PROJECT, INC.
2020 Pennsylvania Avenue, NW, Ste 163
Washington, DC 20006
Telephone: (202) 599-0466
Facsimile: (929) 777-8428
justin.florence@protectdemocracy.org
jamila.benkato@protectdemocracy.org
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CERTIFICATE OF SERVICE
I hereby certify that this document, filed through the ECF system, will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing and
paper copies will be sent to any non-registered participants by first-class mail, postage prepaid,
on September 13, 2019.
/s/ Meaghan VerGow
Meaghan VerGow

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