722 F.2d 845 (D.C. Cir. 1983), 82-2447, Impro Products, Inc. v. Block

Docket Nº:82-2447.
Citation:722 F.2d 845
Party Name:IMPRO PRODUCTS, INC. v. John R. BLOCK, Secretary of Agriculture of the United States.
Case Date:December 16, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 845

722 F.2d 845 (D.C. Cir. 1983)

IMPRO PRODUCTS, INC.

v.

John R. BLOCK, Secretary of Agriculture of the United States.

No. 82-2447.

United States Court of Appeals, District of Columbia Circuit

December 16, 1983

        Argued Sept. 8, 1983.

Page 846

        Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-1284).

        Michael J. Ryan, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, John H.E. Bayly, Jr., Asst. U.S. Attys. and Raymond W. Fullerton, Asst. Gen. Counsel, and Aaron B. Kahn, Atty., Dept. of Agriculture, Washington, D.C., were on brief, for appellant.

        Harold M. Carter, with whom Philip C. Jones, Washington, D.C., was on brief, for appellee. George T. Qualley, Sioux City, Iowa, also entered an appearance for appellee.

        Before WRIGHT, WALD and EDWARDS, Circuit Judges.

        Opinion for the Court filed by Circuit Judge EDWARDS.

        HARRY T. EDWARDS, Circuit Judge:

        This appeal is the by-product of a protracted dispute between Impro Products, Inc. ("Impro") and the Department of Agriculture ("USDA"). In 1981, Impro filed suit claiming that USDA had improperly distributed reprints of an article that contained allegedly false and misleading information about an Impro product. The disputed article, published in 1970 in the American Journal of Veterinary Research, discussed a USDA study of the efficacy of a veterinary product manufactured by Impro. After hearing, the District Court enjoined USDA from releasing copies of the article and also ordered the Department to attach explanatory information to any other disseminated report on the USDA test of Impro's product.

        As a preliminary matter, there is reason to question whether there was any "final agency action" subject to judicial review under the Administrative Procedure Act ("APA"). However, even assuming that there was such agency action, we hold that review in the District Court was barred by the statute of limitations. Accordingly, we reverse the decision and order of the District Court and remand this case for further proceedings consistent with this opinion.

       I. BACKGROUND

        Almost twenty years ago, in 1965, Impro applied to USDA under the Virus, Serum and Toxin Act of 1913, 21 U.S.C. Secs. 151-158 (1976) ("VST Act"), for a license to produce, ship and sell a veterinary product later named "Whey Antibody Blend." The VST Act makes it unlawful to ship interstate any unlicensed virus, serum, toxin or "analogous product" intended for treatment of domestic animals. Id. Sec. 158. Impro claimed the product improved the health and milk production of cows if properly administered.

        Initially, the Veterinary Biologics Division of USDA issued a temporary license to Impro to market Whey Blend. The temporary license expired in September 1967 and, since that date, USDA has denied further Impro applications for a license to market Whey Blend. Impro has never sought judicial review of the denials of its license applications.

        In 1966, scientists in the USDA Agriculture Research Service ("ARS") reviewed the Impro license application, decided its supporting data were inadequate, and undertook their own study of the efficacy of Whey Blend. ARS scientists met with Impro representatives and worked out a protocol by which to test the product. Testing began in October 1966 at the Beltsville, Maryland, ARS facility, and was completed in December 1967. ARS scientists concluded

Page 847

that the Beltsville test results did not support Impro's claim of efficacy. 1 Thereafter, ARS scientists wrote an article summarizing the ineffectiveness of Whey Blend, as reflected in the test results, which was submitted to and published in the August 1970 issue of the American Journal of Veterinary Research ("AJVR"). Smith, Kiddy, Plowman, Schultze & Hooven, Whey Antibody Preparation: Effects of Prepartum Injection on Milk Production in Dairy Cows, 31 AM.J. VETERINARY RESEARCH 1485 (1970), reprinted in J.A. 83-86. Since publication, and as recently as October 15, 1981, USDA regularly has released copies of the article, often coupled with a statement that Impro has no license to sell Whey Blend in the interstate market. 2 From 1969 to the present, Impro has doggedly attacked the Beltsville test results, and has submitted materials to USDA criticizing the test and its results. USDA repeatedly responded that it believed the test was sound, most recently on May 8, 1981. See Impro Products, Inc. v. Block, No. 81-1284, slip op. at 4-5 (D.D.C. July 9, 1982) (Memorandum and Order), reprinted in J.A. 52-53.

        After receiving the May 8, 1981, correspondence, Impro filed this action. It alleged that the Beltsville test was not properly conducted and that the AJVR article contained false and misleading information about Impro's product. Impro requested District Court review of USDA actions taken pursuant to the VST Act--which authorizes USDA to license products--and of actions taken in violation of its Fifth Amendment right to due process. Specifically, Impro sought a declaratory judgment that the test was unreliable and fallacious, and an injunction proscribing USDA's distribution of, and reliance on, the Beltsville test and the AJVR article. The Government counterclaimed, arguing first, that Impro had sold its product interstate without a license, and that such sales should be declared a public nuisance and enjoined; and second, that such sales violated the VST Act and should accordingly be enjoined. The Government also entered an array of defenses, among them that neither the Beltsville test nor the subsequent publication of its results were "agency action" subject to review, and that any suit for judicial review was barred by the statute of limitations. See Impro Products, Inc. v. Block, No. 81-1284, slip op. at 5-6 (D.D.C. July 9, 1982) (Memorandum and Order), reprinted in J.A. 53-54.

        In a series of rulings, the District Court addressed each of these issues. In deciding the issues pertinent to our review, the court first held that the VST Act makes certain action illegal but provides for no civil injunctive relief. It therefore declined to imply such a remedy on behalf of the Government. Impro Products, Inc. v. Block, No. 81-1284 (D.D.C. Apr. 7, 1982) (Memorandum and Order), reprinted in J.A. 38-46. Second, the court ruled that Impro's complaint stated an actionable claim that was not time-barred. The court concluded that dissemination of the Beltsville test results was "agency action" subject to judicial review under 5 U.S.C. Sec. 702, 3 and that final agency action occurred in 1981, i.e., on the last of many occasions when USDA officials

Page 848

refused to abandon or modify the Beltsville test results. Impro Products, Inc. v. Block, No. 81-1284 (D.D.C. July 9, 1982) (Memorandum and Order), reprinted in J.A. 49-59. Third, the court found that the appropriate standard of review of the challenged agency action was whether the actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Impro Products, Inc. v. Block, No. 81-1284 (D.D.C. July 28, 1982) (Memorandum and Order), reprinted in J.A. 60-67. Fourth, the District Court concluded that the AJVR article contained false and misleading statements, that its release in its current form constituted arbitrary and capricious action and an abuse of discretion, and that dissemination in its current form should be enjoined. Impro Products, Inc. v. Block, No. 81-1284 (D.D.C. Sept. 2, 1982) (Memorandum and Order), reprinted in J.A. 68-82.

        On appeal, the Government challenges each of the rulings against it.

       II. DISCUSSION

  1. The Existence of "Agency Action"

            We begin our inquiry with a consideration of whether the agency's behavior in this matter was properly subject to judicial review. The Administrative Procedure Act subjects to judicial review "final agency...

To continue reading

FREE SIGN UP