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Harkonen v. United States Department of Justice

United States Court of Appeals, Ninth Circuit

September 8, 2015

W. SCOTT HARKONEN, M.D., Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES OFFICE OF MANAGEMENT AND BUDGET, Defendants-Appellees

Argued and Submitted, San Francisco, California: March 9, 2015.

Appeal from the United States District Court for the Northern District of California. D.C. No. 4:12-cv-00629-CW. Claudia Wilken, Senior District Judge, Presiding.

AFFIRMED.

SUMMARY[**]

Information Quality Act

The panel affirmed the district court's Fed.R.Civ.P. 12(b)(6) dismissal of Dr. W. Scott Harkonen's action seeking the correction of statements the United States Department of Justice made about Dr. Harkonen in a 2009 press release.

The Information Quality Act required the Office of Management and Budget to draft guidelines for federal agencies that disseminate information, and required each agency to issue its own agency-specific guidelines to correct disseminated information. The DOJ issued a 2009 press release concerning Dr. Harkonen's wire fraud conviction, and Dr. Harkonen alleged that DOJ's refusal to issue a correction was arbitrary and capricious.

The panel applied Chevron analysis, and held that the Office of Management and Budget's and DOJ's exclusion of press releases from the coverage of the Information Quality Act guidelines was not arbitrary and capricious, or manifestly contrary to the Information Quality Act. The panel also held that DOJ's exclusion of press releases applied to the press release of which Dr. Harkonen sought correction.

Mark E. Haddad (argued), Sidley Austin LLP, San Francisco, California; Coleen Klasmeier and Kathleen M. Mueller, Sidley Austin LLP, Washington, D.C., for Plaintiff-Appellant.

Melissa N. Patterson (argued) and Alisa B. Klein, Appellate Staff Attorneys, Melinda Haag, United States Attorney, and Stuart F. Delery, Assistant Attorney General, United States Department of Justice, Civil Division, Washington, D.C., for Defendants-Appellees.

William G. Kelly, Jr., Multinational Legal Services, PLLC, Driggs, Idaho, for Amicus Curiae Center for Regulatory Effectiveness.

Before: John T. Noonan, William A. Fletcher, and Andre M. Davis,[*] Circuit Judges.

OPINION

NOONAN, Circuit Judge.

In this case we must decide whether the Administrative Procedure Act and the Information Quality Act confer the right to judicial review of a federal agency's refusal to correct allegedly false or misleading information published by the agency in a press release. Dr. W. Scott Harkonen argues that he has the right to obtain, and that the Department of Justice (" DOJ" ) has an obligation to provide, the correction of statements DOJ made about him in a 2009 press release. Not so, the government counters: Individuals have no such right, even if the information DOJ published was misleading, false, or even defamatory. We conclude that in the circumstances of this case the government is correct, and therefore we AFFIRM.[1]

I.

A.

The Information Quality Act (" IQA" ) was included as a brief note to the Consolidated Appropriations Act of 2001, Pub. L. No. 106-554, 114 Stat. 2763 (2000). The IQA required 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 . . . disseminated by Federal agencies in fulfillment of the purposes and provisions" of the Paperwork Reduction Act. Id. § 515(a) . The IQA further required each agency to which the guidelines applied to issue its own agency-specific guidelines and 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 . . . ." Id. § 515(b)(2). OMB published its proposed guidelines with a request for public comment on June 28, 2001, an interim set of guidelines on September 28, 2001, and its final guidelines on February 22, 2002.

In formulating its guidelines, OMB attempted to balance several often-competing concerns. OMB recognized that " the fact that the Internet enables agencies to communicate information quickly and easily to a wide audience . . . increases the potential harm that can result from the dissemination of information that does not meet basic information quality guidelines." Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication (" Final OMB Guidelines" ), 67 Fed.Reg. 8452 (Feb. 22, 2002). OMB also recognized that " information quality comes at a cost." Id. at 8453. Based on this concern, OMB instructed that " agencies should weigh the costs . . . and the benefits of higher information quality" during the formulation of their guidelines. Id. After receiving commentary from, among other sources, several federal agencies, OMB revised its definition of " dissemination" to exclude information distributed through press releases from coverage by the guidelines. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (" Interim Final OMB Guidelines" ), 66 Fed.Reg. 49,718, 49,723, 49,725. (Sept. 28, 2001). OMB's final guidelines maintained the exclusion of press releases from the definition of " dissemination." Final OMB Guidelines, 67 Fed.Reg. at 8460.

DOJ subsequently issued its own agency-specific guidelines on October 4, 2002. See Information Quality: DOJ Information Quality Guidelines, available at http://www.justice.gov/iqpr/information-quality (updated Dec. 31, 2014). These closely mirrored the OMB final guidelines. Id. Relevant here, the scope of the guidelines " does not apply to information disseminated in . . . press releases fact sheets, press conferences or similar communications (in any ...


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