The second federal court to address judicial reviewability of the Data Quality Act (DQA) and its subsequent guidelines has found that neither the DQA nor the Administrative Procedure Act permits judicial review. The court also found that plaintiffs, the Salt Institute and the U.S. Chamber of Commerce, who filed the lawsuit against the National Heart, Lung and Blood Institute (NHLBI) over statements about the health benefits from lower sodium diets, lacked any legal standing. Based on these findings, the court dismissed the case on Nov. 15. Although this case is the second to reject judicial reviewability of the DQA, the first case to do so issued only a cursory opinion on that question. Although that court did address whether the APA permits suit, it conflated the legal standard for APA suits with the standards for private rights of action. This decision, by contrast, offers the first sustained and careful reasoning of these questions. About the Case The Salt Institute and U.S. Chamber of Commerce had originally filed a May 2003 petition under the DQA to "correct" information in statements issued by NHLBI that declared reducing the amount of salt consumed would be healthy for everyone. The organizations contended that the statements violated the objectivity, transparency, and reproducibility requirements of DQA because publicly released studies did not support such conclusions for "all" individuals. To read OMB Watch's analysis of the challenge, click here. The petitioners requested that the agency respond by providing additional information from a key study. NHLBI denied the petition since no "correction" of information was actually sought. The agency also asserted that ,even if a specific correction were requested, the agency would still not grant the petition because the challenged documents were rigorously and independently peer reviewed in addition to meeting NHLBI’s publications procedures. The agency redirected the request for additional data to its Freedom of Information office. The organizations appealed NHLBI's rejection of the data quality challenge, which was again denied by the agency and resulted in the petitioners filing suit. About the Decision Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia dismissed the case for three basic reasons: No Private Right of Action The court held that the DQA provides neither express nor implied right of action. Looking primarily to the Supreme Court's controversial decision in Alexander v. Sandoval, 532 U.S. 275 (2001) (rejecting private enforceability of disparate impact regulations under Title VI), and relying in part on the analysis from the earlier DQA court decision, the court held that the DQA lacks the "rights-creating language" and necessary reference to individual claimants that create priavte rights of action. Instead, the court held, the language of the statute reflected Congress's intent that disputes be handled administratively and not before the courts. No APA Reviewability Unlike the first court to address APA judicial review provisions and the DQA, this court rigorously applied the legal standards for determining whether the APA covers the DQA actions sufficiently to allow review. The court ruled that the APA did not grant judicial review of this matter because the APA only allows court review if a final agency action has occurred and if the agency does not, by law, have discretion in the matter. The court ruled that neither requirement was met in this case. The NHLBI's statements do not represent a final agency action because such a final action is legally defined as an action from which rights are determined or legal consequences will follow. The decision also explained that agencies are considered to have legal discretion when courts have no meaningful standard against which to measure the agencies' actions. The court ruled that neither the DQA nor the resulting guidelines provide any "judicially manageable standards that would allow meaningful judicial review to determine if an agency properly exercised its discretion." In fact, the court found that guidelines contained language that grants agencies sufficient discretion on DQA matters to preclude court review. No Standing to Litigate the DQA The two grounds above would have been sufficient bases for dismissing the case, but the court actually spent the bulk of the opinion on standing doctrine. Standing is a mix of constitutional and prudential requirements designed to ensure that courts do not issue advisory opinions but only address "cases and controversies" between litigants who have personal stakes in a dispute. The decision explains that the plaintiffs fail each portion of a three part test to establish legal standing.

• Part one requires that one prove that the plaintiff has suffered a specific injury and does not present merely a "generalized grievance" that all taxpayers or citizens share alike. The plaintiffs did not even attempt to explain an "injury" such as reduced sales.
• Part two of the standing test requires that the injury be directly traceable to the specific action being challenged--in this case, the low sodium statements by the NHLBI. The agency's statements on the health benefits of reducing salt consumption are not unique; many studies and organization have advanced this conclusion. Therefore, even if an injury were suffered, it could not be traced back to agency because so many other possible causes exist.
• Part three of the test requires that the injury will be redressed, or fixed, if the court renders a favorable decision. Again, since the plaintiffs did not establish any injury, this requirement cannot be met. Judge Lee notes that even if an injury existed because of the multitude of similar conclusions and recommendations on lower sodium, a favorable decision to withdraw NHLBI's statements would not significantly change or repair any damage the industry faces.

The standing decision is of particular interest because the federal government subtly reversed its position in a summary judgment brief. Although the federal government's position has from the beginning been that the DQA completely precludes judicial review, footnote 21 of its summary judgment brief actually contemplated the possibility that government information subject to the DQA could, in some instances, cause litigable harm. Also of Interest In the lawsuit the plaintiffs also asserted that NHLBI had violated the Shelby amendment because the agency had not provided them with all of the underlying data, even though the information had been developed with government funds. The Shelby amendment requires that "all data" produced under a government grant be subject to the "procedures established under the FOIA." However, Judge Lee astutely noted that the rules for the Shelby amendment restrict it only to studies fully funded under competitive contracts after April 2000, and only to data that supports an agency action that has the "force of law," such as a rule or regulation. The grant for the contested study was awarded in 1997, and clearly health advice to the U.S. public does not have the "force of law." For these reasons Judge Lee dismissed the charges that NHLBI violated the Shelby amendment.