Impro Products, Inc. v. Block, No. 82-2447

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WRIGHT, WALD and EDWARDS; HARRY T. EDWARDS
Citation722 F.2d 845
PartiesIMPRO PRODUCTS, INC. v. John R. BLOCK, Secretary of Agriculture of the United States.
Decision Date16 December 1983
Docket NumberNo. 82-2447

Page 845

722 F.2d 845
232 U.S.App.D.C. 359
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.
Argued Sept. 8, 1983.
Decided Dec. 16, 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

A. 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 action" for which there is no other adequate remedy in a court. APA Sec. 10(c), 5 U.S.C. Sec. 704 (1982). For there to be "final" agency action, there must, of course, be "agency action." A threshold question therefore is whether "agency action" has occurred. The APA defines "agency action" to include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." APA Sec. 2(g), 5 U.S.C. Sec. 551(13) (1982). The District Court held that the agency's decision to release the test results, made pursuant to 7 U.S.C. Sec. 430, see note 2, supra, satisfied the statutory "agency action" language. Case law from this Circuit, however, suggests otherwise.

Thirty-five years ago, this court held, in Hearst Radio, Inc. v. FCC, 167 F.2d 225 (D.C.Cir.1948), that an agency decision to disseminate information it had gathered on its own did not amount to "agency action." In Hearst Radio, the FCC published a report entitled "Public Service Responsibility of Broadcast Licensees," known as the "Blue Book." One section of the report contained allegedly false and distorted misrepresentations directed at WBAL, one of plaintiff Hearst's broadcast stations. Plaintiff sought a declaratory judgment that it was entitled, as a matter of law, to withdrawal of the unwarranted charges and misrepresentations in the Blue Book. It argued that it had suffered a legal wrong as a result of the agency's action--the decision to publish--and therefore had a right to judicial review under the Administrative Procedure Act. The District Court dismissed the action and this court affirmed, holding that plaintiff had presented a claim of libel, but that no statutory agency action was implicated.

The court in Hearst Radio first noted that the APA "does not provide judicial review for everything done by an administrative agency," 167 F.2d at 227, and then recited the limits posed by the statutory definition of "agency action," a definition that remains substantially the same today. 4 The court concluded:

Broad as is the judicial review provided...

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73 practice notes
  • Texas v. Biden, 21-10806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2021
    ...All. of Tech. Workers v. DHS, 892 F.3d 332, 342 (D.C. Cir. 2018) (tying reopening to final agency action); Impro Prods., Inc. v. Block, 722 F.2d 845, 850-51 (D.C. Cir. 1983) (similar). In that event, the reaffirmance, rather than the original decision, starts the limitation period. See NRDC......
  • Beverly Enterprises, Inc. v. Herman, No. Civ.A. 97-2475 SSH.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 26, 1999
    ...Rather, Beverly's claim is governed by the six-year statute of limitations set forth at 28 U.S.C. § 2401. See Impro Prods., Inc. v. Block, 722 F.2d 845, 850 The parties disagree as to when Beverly's pre-enforcement challenge to the regulation accrued. The prevailing wage regulation was orig......
  • Sequoia ForestKeeper v. Tidwell, Case No. CV F 11–679 LJO DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 19, 2012
    ...Crown Coat Front Co. v. United States, 386 U.S. 503, 510–11, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967)); see also, Impro Prods., Inc. v. Block, 722 F.2d 845, 850 (D.C.Cir.1983), cert. denied,469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984). Tautologically, and as the Court concluded in Summers......
  • James Madison Ltd. by Hecht v. Ludwig, No. 95-5126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 3, 1996
    ...here, challenge the FDIC's appointment pursuant to the APA, which carries a six-year statute of limitations. Impro Prods., Inc. v. Block, 722 F.2d 845, 850 (D.C.Cir.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984) (interpreting 28 U.S.C. § 2401 to apply to claims brou......
  • Request a trial to view additional results
73 cases
  • Texas v. Biden, 21-10806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2021
    ...All. of Tech. Workers v. DHS, 892 F.3d 332, 342 (D.C. Cir. 2018) (tying reopening to final agency action); Impro Prods., Inc. v. Block, 722 F.2d 845, 850-51 (D.C. Cir. 1983) (similar). In that event, the reaffirmance, rather than the original decision, starts the limitation period. See NRDC......
  • Beverly Enterprises, Inc. v. Herman, No. Civ.A. 97-2475 SSH.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 26, 1999
    ...Rather, Beverly's claim is governed by the six-year statute of limitations set forth at 28 U.S.C. § 2401. See Impro Prods., Inc. v. Block, 722 F.2d 845, 850 The parties disagree as to when Beverly's pre-enforcement challenge to the regulation accrued. The prevailing wage regulation was orig......
  • Sequoia ForestKeeper v. Tidwell, Case No. CV F 11–679 LJO DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 19, 2012
    ...Crown Coat Front Co. v. United States, 386 U.S. 503, 510–11, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967)); see also, Impro Prods., Inc. v. Block, 722 F.2d 845, 850 (D.C.Cir.1983), cert. denied,469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984). Tautologically, and as the Court concluded in Summers......
  • James Madison Ltd. by Hecht v. Ludwig, No. 95-5126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 3, 1996
    ...here, challenge the FDIC's appointment pursuant to the APA, which carries a six-year statute of limitations. Impro Prods., Inc. v. Block, 722 F.2d 845, 850 (D.C.Cir.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984) (interpreting 28 U.S.C. § 2401 to apply to claims brou......
  • Request a trial to view additional results

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