Gilbert Hyatt v. Office of Mgt. and Budget
908 F.3d 1165
9th Cir.2018Background
- In Jan 2013 the Patent and Trademark Office (PTO) submitted several collections of information to OMB, including previously unapproved collections embodied in PTO Rules 1.111, 1.115, and 1.116.
- On July 31, 2013 OMB issued a Determination that those purported collections were "not subject to the PRA," and did not assign an OMB control number.
- Hyatt filed a PRA petition (44 U.S.C. § 3517(b)) asking OMB to rule he was not required to provide information under those PTO Rules; OMB denied the petition on Sept. 13, 2013 relying on its July 2013 Determination.
- Hyatt sued under the Administrative Procedure Act (APA) seeking review of OMB’s denial; the district court dismissed for lack of subject-matter jurisdiction on three independent grounds.
- The Ninth Circuit reversed: it held (1) the PRA’s narrow bar on judicial review did not preclude Hyatt’s APA claim, (2) OMB’s denial was a final agency action, and (3) OMB’s threshold determination whether the PRA applies is non‑discretionary and reviewable, though selection of remedial measures is committed to agency discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory preclusion under 44 U.S.C. § 3507(d)(6) | Hyatt: OMB’s denial of his §3517(b) petition is not the kind of OMB decision barred from review because OMB did not "approve or not act upon" a collection in a rule. | OMB: §3507(d)(6) bars judicial review of OMB decisions about collections in agency rules. | Court: The PRA bar is narrow; it covers OMB approval or failure to act that results in issuance of a control number. OMB’s July 2013 Determination did not do that, so review is not precluded. |
| Final agency action (5 U.S.C. §704) | Hyatt: OMB’s denial determined his legal obligation to provide info and consummated process, so it is final. | OMB/District Ct: Denial is not final and thus not reviewable. | Court: Denial is final— it determined rights/obligations and consummated decisionmaking; there is no adequate alternative remedy. |
| Whether OMB’s action was discretionary (committed to agency discretion) | Hyatt: OMB’s initial determination whether PRA applies is mandatory and subject to judicial review. | OMB/District Ct: OMB’s choice to provide (or not) remedial relief is discretionary and not reviewable. | Court: Two-step: (1) threshold determination whether PRA applies is non‑discretionary and reviewable; (2) choice of remedial action is discretionary and not reviewable. |
| Scope of PRA’s "not act upon" language | Hyatt: "Not act upon" cannot be read to swallow all denials; reading must align with statutory scheme. | OMB: Broad reading would preclude many challenges. | Court: Statutory structure and consequences of "not act upon" (which issues a control number) require a narrow reading; OMB’s Determination did not issue a control number, so §3507(d)(6) does not apply. |
Key Cases Cited
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) (presumption of judicial review unless Congress clearly intended preclusion)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action requires consummation of decisionmaking and legal consequences)
- Dole v. United Steelworkers of Am., 494 U.S. 26 (1990) (review of OMB disapproval of regulatory provisions not barred)
- Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (ripeness and presumption favoring pre-enforcement review)
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (interpretation of mandatory "shall")
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency refusals to act generally unreviewable when committed to discretion)
- Hinck v. United States, 550 U.S. 501 (2007) (factors for assessing adequacy of alternative remedies)
- City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) (discussion of when APA review is precluded)
- Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999) (PRA does not create a private right of action)