Harkonen v. United States Department of Justice
2015 U.S. App. LEXIS 15926
| 9th Cir. | 2015Background
- DOJ issued a 2009 press release announcing the conviction of W. Scott Harkonen for wire fraud based on allegedly false statements in a 2002 InterMune press release about a clinical trial.
- Harkonen filed administrative requests under the Information Quality Act (IQA) seeking correction/retraction of two DOJ press-release statements; DOJ denied them, citing agency and OMB IQA guidelines that exclude press releases from the IQA’s definition of "dissemination."
- Harkonen sought reconsideration administratively; DOJ again denied relief. He then sued under the Administrative Procedure Act (APA) claiming DOJ’s denials were arbitrary and contrary to law and that the exclusion of press releases from IQA guidelines was unlawful.
- The district court dismissed under Rule 12(b)(6); Harkonen appealed to the Ninth Circuit.
- The Ninth Circuit considered whether the IQA / OMB and DOJ guidelines unambiguously include press releases, whether agencies permissibly excluded them, and whether that exclusion foreclosed APA review of DOJ’s refusals to correct the press release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IQA unambiguously requires that press releases be covered as "disseminated" information | Harkonen: "Disseminated" plainly includes press releases, so DOJ must correct them and APA review is available | Government: IQA is ambiguous; OMB and DOJ excluded press releases in guidelines, so IQA correction mechanisms do not apply | Court: "Disseminated" ambiguous; Chevron step one fails — not unambiguous |
| Whether OMB and DOJ permissibly excluded press releases from IQA coverage | Harkonen: Agencies exceeded their authority by excluding press releases | Government: Agencies reasonably balanced costs and benefits and had discretion to define "dissemination" to exclude press releases | Court: Under Chevron step two, OMB/DOJ exclusion is a permissible construction and not arbitrary or capricious; exclusion upheld |
| Whether DOJ properly applied its own guidelines to exclude this specific DOJ press release | Harkonen: Even if exclusion were allowed generally, DOJ misapplied it or should have corrected the content | Government: DOJ reasonably concluded the release fit the exclusion for press releases and therefore the IQA correction process did not apply | Court: Auer deference applies; DOJ’s interpretation of its guideline is not plainly erroneous or inconsistent and is entitled to deference |
| Whether APA provides a basis for judicial review of DOJ’s refusal to correct the press release under the IQA | Harkonen: He invoked APA review of agency action denying correction requests under IQA | Government: No judicial right to force correction of allegedly incorrect/defamatory agency information when IQA exclusion applies | Court: Because press releases are excluded and agencies permissibly so interpreted the IQA, Harkonen has no right to APA review here; claim dismissed |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (agency deference two-step framework)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its own regulations)
- Prime Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010) (upholding OMB discretion to define "dissemination" under IQA)
- Salt Inst. v. Leavitt, 440 F.3d 156 (4th Cir. 2006) (no general common-law right to informational correctness)
- Barber v. Widnall, 78 F.3d 1419 (9th Cir. 1996) (distinguished—statutory military-record correction right was within scope of statute)