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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;
JEFFERSON BEAUREGARD SESSIONS, III,
in His Official Capacity as Attorney General of
the United States; and KIRSTJEN NIELSEN,
in Her Official Capacity as 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, Jefferson
Beauregard Sessions, III, and Kirstjen Nielsen (“Defendants”), 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), respectfully move the Court for an order dismissing Plaintiffs’
complaint against them. The grounds for this motion are set forth below.
I
BACKGROUND
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”), bring this action
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 500, et seq. They seek an

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Order compelling Defendants to respond to their petitions submitted under the Information
Quality Act challenging a Report issued by Defendants U.S. Department of Justice (“DOJ”) and
Department of Homeland Security (“DHS”) pursuant to Executive Order 13780.
Both Counts of Plaintiffs’ complaint seek relief pursuant to the APA. Count I claims that
Defendants violated section 706(1) of the APA, 5 U.S.C. § 706(1), because Defendants did not
respond to their petition within the time suggested by the DOJ and DHS Guidelines. Count II
claims that Defendants violated section 706(2)(D), because their alleged failure to respond to the
petition unlawfully withheld required agency action because they did not observe procedure
required by law.
II
STATEMENT OF FACTS
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, 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

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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.” See id.
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. at 8458-59. 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

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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, available at
https://www.justice.gov/iqpr/iqpr.html (updated Nov.1, 2016) (“DOJ Guidelines”) (last visited
July 31, 2018). 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, “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

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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
disseminated information and to outline a process by which affected persons may seek or obtain
correction of disseminated information. See United States Department of Homeland Security,
Information Quality Guidelines, available at
https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf (last visited
July 31, 2018) (“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.” See DHS
Guidelines. 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

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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.
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.”
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;
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(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, Sec. 11(a); 82 Fed. Reg. at 13217 (2017).
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 Compl. ¶ 46, Ex. 3 (ECF 04-2); Initial
Section 11 Report at 1, Exhibit A. 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.” Initial Section 11 Report at 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.

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C.

Plaintiffs’ IQA Request and DOJ’s and DHS’s Response
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.
Compl. Exhibit 4 (ECF 4-3). In their IQA request, 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. See 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-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. p. 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. 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. p. 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. p. 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
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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. ¶ 9.
2.

DHS and DOJ Responses

On June 19, 2018, DOJ provided an interim response (“DOJ June 19 Response”), stating
that it required additional time to resolve Plaintiffs’ request given the number and complexity of
issues raised in the request. Exhibit B, DOJ June 19 Response. On June 19, 2018, DHS also
provided an interim response (“DHS June 19 Response”), in which it stated that additional time
would be required to review Plaintiffs’ IQA request and provide any response. Exhibit C, DHS
June 19 Response.
On July 31, 2018, DOJ issued a further response to Plaintiffs’ IQA request (“DOJ July 31
Response”). Exhibit D, DOJ July 31 Response. In the response, DOJ responded to the issues
raised in the IQA request, and concluded that neither retraction or correct of information, which
Plaintiffs requested, was required. The response also outlined appeal rights available to
Plaintiffs. Specifically, Plaintiffs were advised they had the right to request reconsideration
within forty-five (45) calendar days from the date of the letter. The letter provided the contact
information to effectuate the appeal.
On August 1, 2018, DHS issued a further response to Plaintiffs’ IQA request (DHS
August 1 Response”). Exhibit E, DHS August 1 Response. The DHS response also addressed
the issues raised by Plaintiffs, as well as outlined DHS’ appeal rights. If Plaintiffs choose to
appeal, the appeal must be submitted within thirty (30) days of the letter. DHS provided
Plaintiffs with the contact information for the appeal.
III
ARGUMENT
A.

Plaintiffs Lack Standing To Pursue This Action
A plaintiff who seeks to invoke federal jurisdiction bears the burden of establishing “the
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irreducible constitutional minimum” of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). 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). Courts “presume that federal courts lack jurisdiction unless the contrary appears
affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991) (quotation and
citations 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, particularized, and actual or imminent, rather than
conjectural or hypothetical. Lujan, 504 U.S. at 560. 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. 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);
Animal Welfare Inst. v. Martin, 623 F.3d 19, 25 (1st Cir. 2010).
At the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each
element of the standing inquiry. Spokeo, 136 S. Ct. at 1547. Plaintiffs’ allegations fall short and
are insufficient to confer standing. The complaint states 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 that academic scholar Plaintiffs Crowley and
Wittes have an “interest in the accuracy of data about terrorism.” See Compl. ¶ 71, 73. Plaintiff

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Crowley, meanwhile, asserts merely a “professional interest in the accurate, fair, and unbiased
presentation of data” based on his past federal positions, id. ¶ 72, while Plaintiff Wittes claims
“an interest in the accuracy of data about terrorism” in his capacity as a “journalist and
academic,” id. ¶ 73. At most, each of the Plaintiffs’ allegations of interest asserts no 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 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)). Plaintiffs here have failed to show 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. Indeed, insofar as Plaintiffs claim they have a right to informational
correctness that will redress their alleged harm, courts have found that they lack subject matter
jurisdiction to hear IQA claims because the IQA “creates no enforceable legal rights at all” and
therefore IQA petitioners lack standing to pursue a federal action. See Salt Inst. v. Leavitt, 440
F.3d 156, 159 (4th Cir. 2006); Family Farm Alliance v. Salazar, 749 F. Supp. 2d 1083, 1103
(E.D. Cal. 2010).
Accordingly, because Plaintiffs have not pled facts sufficient to show any injury in fact
traceable to the Defendants that is likely to be redressed favorably by the Court, they lack Article

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III standing to pursue this action. For sake of completeness, 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).
B.

Plaintiffs’ Request That the Court Order DOJ and DHS to Respond to Their IQA
Petition Is Moot
This action should be dismissed as moot. “It has long been settled that a federal court has

no authority ‘to give opinions upon moot questions or abstract propositions, . . . which cannot
affect the matter in issue in the case before it.” Church of Scientology v. United States, 506 U.S.
9, 12 (1992); Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (“Federal courts lack
jurisdiction to decide moot cases because their constitutional authority extends only to actual
cases or controversies.”). When a claim has “lost [] its character as a present, live controversy” it
is moot. Am. Civil Liberties Union of Massachusetts v. U.S. Conference of Bishops, 705 F.3d 44,
54 (1st Cir. 2013) (citations omitted). Indeed, “[n]o matter how vehemently the parties continue
to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the
dispute ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal
rights.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Alvarez v. Smith, 558 U.S.
87, 93 (2009)). As a general matter, “a case becomes moot when ‘intervening events make it
impossible to grant the prevailing party effective relief.’” Pineiro v. Gemme, 937 F. Supp. 2d
161, 170 (D. Mass. 2013) (quoting Pine Tree Medical Assocs. v. Secretary of HHS, 127 F.3d
118, 121 (1st Cir.1997)); Family Farm Alliance, 749 F. Supp. 2d at 1090.
Here, both DOJ and DHS in fact issued their responses to Plaintiffs on July 30 and
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August 1, 2018, respectively. See Exhibit D and E. As such, Plaintiffs received the very relief
they requested and the case is moot. The complaint should therefore be dismissed in its entirety.
See Family Farm Alliance, 749 F. Supp. 2d at 1090.
C.

Plaintiffs’ Claims Are Not Subject to Judicial Review Under the APA
The alleged violations of the APA upon which Plaintiffs’ claims rely are based upon

Defendants’ alleged failure to respond to Plaintiffs’ IQA petition. See Compl. ¶¶ 90-104. They
claim that Defendants have not substantively responded to their “request for correction or
provided notice to [them] that extra time would be required,” id. ¶ 92, as they believe that they
were legally entitled to a response to their IQA petition within 60 days, and that the alleged
failure to respond constitutes final agency action. They seek an Order from the Court declaring
that the failure to respond violates the APA and that the Court require Defendants to respond.
Even if Defendants’ issuance of a response had not rendered their claims moot, Plaintiffs’ claim
could not proceed under the APA.
1.

Plaintiffs Do Not Have a Right of Action Under the IQA

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.” See 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

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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), aff’d on 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.”); 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); 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); In re Operation of
the Missouri River Sys. Litig., 363 F. Supp. 2d 1145, 1174 (D. Minn. 2004), aff’d in part and
vacated in part on other grounds, 421 F.3d 618 (8th Cir. 2005) (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”); Salt Inst. v.

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

Neither the IQA Nor The APA Allow for Judicial Review in this Case

Plaintiffs frame their IQA claim as an APA challenge, but this, too, has been 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.” 5 U.S.C. §
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.” 5 U.S.C.
§ 704. Thus, assuming, arguendo, that DOJ’s and DHS’s responses to Plaintiffs’ IQA request
had not rendered Plaintiffs’ claims moot, or if Plaintiffs were to challenge the responses
themselves, those responses would not constitute “final agency action” that is reviewable under

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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” 5 U.S.C. § 701(a)(1) (emphasis added). The
Supreme Court has applied the exception in 5 U.S.C. § 701(a)(1) to “cases in which the existence
of an alternative review procedure provided ‘clear and convincing evidence,’ . . . of a legislative
intent to preclude judicial review.” Franklin v. Massachusetts, 505 U.S. 788, 820 (1992).
Judicial review of IQA claims is not authorized under the APA because the IQA precludes it. As
discussed above, the statutes 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 IQA § 515(b)(2). 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.” See 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
of discretion, [such as] where statutes are drawn in such broad terms that in a given case there is

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no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830 (1985)(quotation marks and citations
omitted); see also Massachusetts Pub. Interest Research Grp., Inc. v. U.S. Nuclear Regulatory
Comm'n, 852 F.2d 9, 15 (1st Cir. 1988). 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. See Family Farm Alliance, 749 F. Supp. 2d at 1092 (emphasis
in original). 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).1 Under the DOJ Guidelines, DOJ will “normally” respond

1

Insofar as Plaintiffs intended to challenge the Report as non-compliant with the IQA (a
claim not squarely alleged in the Complaint), there is also no meaningful standard for judicial
review. Consistent with the IQA’s broad guidance, the DOJ and DHS IQA Guidelines 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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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. See 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.” See
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 to process.” See DHS Guidelines.
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.” See 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. See 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.” See Salt Inst., 345 F. Supp. 2d at 602 (emphasis original); Family Farm
Alliance, 749 F. Supp. 2d at 1095 (concluding that “[t]he IQA itself contains no standards
concerning peer review, committing 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

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602; 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.

Were Plaintiffs to seek to amend their complaint in an effort to challenge the agencies’
responses, APA review would also be unavailable 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)). 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.” Berkshire Envtl. Action Team, Inc. v. Tennessee Gas Pipeline Co., LLC, 851 F.3d 105,
111 (1st Cir. 2017) (referencing Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 113 (1948)). Plaintiffs failed to allege that the agencies’ responses to its IQA petition are
actions from which legal consequences will flow.
As courts have explained, “[a]gency dissemination of advisory information that has no

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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. See 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, even were they to be squarely
challenged at this juncture, DOJ’s and DHS’s responses to Plaintiffs’ IQA petitions did not mark
the consummation of the agency’s decisionmaking process, as both agencies afforded Plaintiffs
the right to an administrative appeal with an official who was not involved with the response to
the initial request. See Exhibits D and E. Moreover, Plaintiffs have not alleged, nor could they,
that the agencies’ responses to its IQA petition are actions 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 Plaintiff’s rights
or result in any legal consequences for Plaintiff. See 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).

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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. The APA does not provide an alternative cause of action, and, indeed, the application of
Sections 701(a) and 704 of the APA forecloses judicial review of Plaintiffs’ IQA claim. The
Court should therefore dismiss Plaintiffs’ complaint.
IV
CONCLUSION
Based upon the foregoing, Defendants request the Court grant their motion and dismiss
Plaintiffs’ 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: August 2, 2018

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