Hyatt v. Office of Mgmt. & Budget

• Decision Date: 15 November 2018
• Docket Number: No. 17-17101,17-17101
• Parties: Gilbert P. HYATT; American Association for Equitable Treatment, Inc., Plaintiffs-Appellants, v. OFFICE OF MANAGEMENT AND BUDGET; Shaun Donovan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

908 F.3d 1165

Gilbert P. HYATT; American Association for Equitable Treatment, Inc., Plaintiffs-Appellants,

v.OFFICE OF MANAGEMENT AND BUDGET; Shaun Donovan, Defendants-Appellees.

No. 17-17101

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 12, 2018 Seattle, Washington

Filed November 15, 2018

Andrew M. Grossman (argued) and Mark W. DeLaquil, BakerHostetler LLP, Washington, D.C., for Plaintiffs-Appellants.

Jennifer L. Utrecht (argued) and Mark R. Freeman, Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; Mark R. Paoletta, General Counsel, Office of Management and Budget, Washington, D.C.; for Defendants-Appellees.

Before: N. Randy Smith and Morgan Christen, Circuit Judges, and Robert E. Payne,^* District Judge.

N.R. Smith, Circuit Judge:

The Paperwork Reduction Act ("PRA") authorizes individuals to petition the Office of Management and Budget ("OMB") for a determination of whether they must provide information requested by or for a government agency. 44 U.S.C. § 3517(b). Where such a petition does not challenge an OMB decision "to approve or not act upon a collection of information contained in an agency rule," see 44 U.S.C. § 3507(d)(6),¹ the subsequent determination is subject to judicial review under the Administrative Procedure Act ("APA"). See 5 U.S.C. § 704. Thus, the district court has jurisdiction to review the OMB's decision to deny Gilbert Hyatt's PRA petition ("Petition"). We reverse and remand.

I. BACKGROUND

In January 2013, the Patent and Trademark Office ("PTO") submitted a number of collections of information to the OMB, as required by the PRA. See 44 U.S.C. § 3507. The PTO's submission included several previously approved collections of information, which had already been issued an OMB control number pursuant to § 3507(d).² The OMB renewed these collections and their corresponding OMB control number (0651-0031).

The submission also included purported collections of information, contained in PTO rules 111, 115, and 116 ("PTO Rules"), that had not previously been approved or assigned an OMB control number.³ The OMB did not approve or disapprove these purported collections of information. Instead, on July 31, 2013, the OMB affirmatively declared that these purported collections were "not subject to the [PRA]" ("July 2013 Determination"). As a result, the OMB did not issue a control number for the purported collections.

On August 1, 2013, Hyatt filed his Petition, pursuant to 44 U.S.C. § 3517(b), asking the OMB to determine that he did not need to disclose the information sought by the PTO Rules, because the PTO had not obtained an OMB control number, as required by 44 U.S.C. § 3507(a)(3). The OMB denied the Petition on September 13, 2013. The agency referenced its July 2013 Determination, explaining that the PTO Rules did not contain any collections of information, because three regulatory exceptions to the definition of "information" applied. See 5 C.F.R. § 1320.3(h)(1), (6), (9). Consequently, the agency concluded that the PTO Rules were not subject to the PRA.

Hyatt filed a complaint with the district court on August 16, 2016, asserting two claims under the APA.⁴ He challenged both the OMB's July 2013 Determination⁵ and the OMB's denial of his Petition, which itself was based on the July 2013 Determination. On November 11, 2016, the OMB moved to dismiss the case on the grounds that the district court lacked subject matter jurisdiction to review the OMB's actions under the APA.

The district court granted the motion to dismiss. It determined that it lacked subject matter jurisdiction to hear Hyatt's asserted APA claims on three independent grounds. First, 44 U.S.C. § 3507(d)(6) precluded judicial review. Second, the challenged administrative actions did not constitute final agency actions. Third, the OMB's decision (not to provide any remedial action in response to Hyatt's Petition) was discretionary. Hyatt timely appealed.

II. STANDARD OF REVIEW

We review de novo "dismissals under Rules 12(b)(1) and 12(b)(6)." Rhoades v. Avon Prod., Inc. , 504 F.3d 1151, 1156 (9th Cir.2007). "In the context of reviewing a decision of an administrative agency, de novo review means that we ‘view the case from the same position as the district court.’ " Nev. Land Action Ass'n v. U.S. Forest Serv. , 8 F.3d 713, 716 (9th Cir.1993) (quoting Marathon Oil Co. v. United States , 807 F.2d 759, 765 (9th Cir.1986) ).

We give no deference to the OMB's interpretation of the PRA in this case, because "the question of judicial review" is "a matter within the peculiar expertise of the courts." Love v. Thomas , 858 F.2d 1347, 1352 n.9 (9th Cir.1988).

III. DISCUSSION

"The APA confers a general cause of action upon persons ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ " Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) (quoting 5 U.S.C. § 702 ). However, no cause of action under the APA exists if (1) "statutes preclude judicial review," 5 U.S.C. § 701(a)(1) ; (2) the relevant agency action is not a "final agency action for which there is no other adequate remedy in a court," 5 U.S.C. § 704 ; or (3) the "agency action is committed to agency discretion by law," 5 U.S.C. § 701(a)(2). See City of Oakland v. Lynch , 798 F.3d 1159, 1165 (9th Cir.2015).

A. Statutory Preclusion

The district court determined that Hyatt's APA claim was statutorily precluded by a provision of the PRA that declares "[t]he decision by the [OMB] to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review." 44 U.S.C. § 3507(d)(6) ; see also 5 U.S.C. § 701(a)(1) (prohibiting an APA claim where "statutes preclude judicial review"). Hyatt argues that judicial review of the denial of his Petition is not statutorily precluded, because the Petition did not involve a decision subject to the PRA's prohibition. We agree.

There is a "strong presumption that Congress intends judicial review of administrative action." Pinnacle Armor, Inc. v. United States , 648 F.3d 708, 718 (9th Cir.2011) (quoting Helgeson v. Bureau of Indian Affairs , 153 F.3d 1000, 1003 (9th Cir.1998) ). Only "a showing of ‘clear and convincing evidence of a contrary legislative intent’ " will overcome that presumption. Id. (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 140–41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). "In the context of preclusion analysis, the ‘clear and convincing evidence’ standard is not a rigid evidentiary test," and "the presumption favoring judicial review [is] overcome, whenever the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme.’ " Block , 467 U.S. at 351, 104 S.Ct. 2450 (quoting Data Processing Serv. v. Camp , 397 U.S. 150, 157, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ). "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Id. at 345, 104 S.Ct. 2450. The presumption has not been overcome in this case.

The PRA provides that agencies cannot "conduct or sponsor" a "collection of information" unless they comply with several procedural requirements. 44 U.S.C. § 3507(a). Those requirements include conducting a review of the proposed collection, providing notice of the proposed collection in the Federal Register, receiving and evaluating the public comments, submitting the proposed collection and relevant documents to the OMB, and obtaining an OMB control number "to be displayed upon the collection of information." Id. ; id. § 3506(c). When a proposed collection of information is submitted for OMB review, the OMB may either expressly approve or disapprove the proposed collection or implicitly approve it by not acting upon it. See 44 U.S.C. § 3507(c), (d). If the collection of information is approved, whether expressly or implicitly, the OMB must assign a control number to the collection. Id. § 3507(a), (c), (d) ; 5 C.F.R. § 1320.11(i).

Within this context, the PRA's bar on judicial review, 44 U.S.C. § 3507(d)(6), is demonstratively narrow in scope. For example, it does not prohibit judicial review of an OMB decision to approve collections that are not contained in an agency rule. See 44 U.S.C. § 3507(c). Nor does it foreclose judicial review of an OMB decision to disapprove collections, regardless of whether those collections are contained in an agency rule. See generally Dole v. United Steelworkers of Am. , 494 U.S. 26, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (reviewing the OMB's disapproval of three provisions in regulations established by the Department of Labor). Thus, the statute precludes judicial review only of a decision by the OMB to approve, whether through express approval or a failure to act upon, a collection within an agency rule. Any other decision remains subject to judicial review. See Silvers v. Sony Pictures Entm't, Inc. , 402 F.3d 881, 885 (9th Cir.2005) (en banc) ("The doctrine of expressio unius est exclusio alterius ‘as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.’ " (quoting Boudette v. Barnette , 923 F.2d 754, 756–57 (9th Cir.1991) ) ).

Judicial review of the denial of Hyatt's Petition is not barred in this case, because it does not implicate a review of a decision by the OMB to approve or not act upon a collection of information contained in an agency rule.⁶ The Petition was denied based on the OMB's July 2013 Determination, that the purported collections of information in the PTO Rules fell outside the PRA. That determination was not a decision to approve or not act upon a collection of information contained...