Americans for Safe Access v. Department of Health & Human Services; Food and Drug Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICANS FOR SAFE ACCESS,
Plaintiff - Appellant,
v.
DEPARTMENT OF HEALTH &
HUMAN SERVICES; FOOD AND
DRUG ADMINISTRATION,
Defendants - Appellees.
No. 07-17388
D.C. No. CV-07-01049-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted April 14, 2009
San Francisco, California
Before: D.W. NELSON, BERZON and CLIFTON, Circuit Judges.
Americans for Safe Access (“Safe Access”) petitioned the Department of
Health and Human Services (“HHS”) for correction under the Information Quality
Act (“IQA”), 44 U.S.C. § 3516, of statements the Department had made
FILED
OCT 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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concerning the efficacy of marijuana for medicinal purposes. HHS declined to
provide the correction, deferring consideration of the request until it completed its
comprehensive review of marijuana’s medical uses in conjunction with a petition
for rescheduling of the drug filed with the Drug Enforcement Administration
(“DEA”). Because HHS’s response to the organization’s IQA petition did not
constitute final agency action, the district court had no jurisdiction under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., and neither do we.
We therefore affirm the district court’s dismissal of the case.
Finality is a jurisdictional requirement for review under APA. See Or.
Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006)
(citing Ukiah Valley Med. Ctr. v. Fed. Trade Comm’n, 911 F.2d 261, 264 n.1 (9th
Cir. 1990)). Bennett v. Spear, 520 U.S. 154, 177–78 (1997), established the two-
part test for determining finality: first, “the action must mark the ‘consummation’
of the agency’s decisionmaking process – it must not be of a merely tentative or
interlocutory nature” and second, “the action must be one by which ‘rights or
obligations have been determined,’ or from which ‘legal consequences will flow.’”
Id. (internal citations omitted). The district court concluded that the first Bennett
criteria – that “the action must mark the ‘consummation’ of the agency’s
decisionmaking process” – is not met. Id. We agree.

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In this regard, HHS’s decision to defer its determination differs from the1
FCC’s denial of a petition to initiate a rulemaking in Fox Television Stations, Inc.
v. FCC, 280 F.3d 1027, 1037-38 (D.C. Cir. 2002), modified on reh’g, 293 F.3d
539. In Fox, although the FCC argued that its determination was not final because
it intended to continue considering the matter, the Commission had no ongoing
administrative procedure to which it referred petitioners. Here, HHS is already
reconsidering the medical efficacy of marijuana as part of the DEA rescheduling
proceedings.
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In its response, HHS explained that Safe Access’s petition implicates HHS’s
responsibilities under the Controlled Substances Act and further stated, correctly,
that both its guidelines and the OMB guidelines permit it to “use existing processes
that are in place to address correction requests from the public.” The agency then
explained that, because it is conducting a comprehensive review of marijuana’s
medical uses in conjunction with a petition for rescheduling filed with the DEA,
Safe Access will be relegated to that process to seek the “correction” it desires.
HHS went on to note that addressing “whether or not marijuana has a currently
accepted medical use in the United States prior to completing our comprehensive
review would prejudge the outcome of this process.”
Thus, HHS made an “interlocutory” decision to defer its determination of
whether marijuana has a currently accepted medical use to an existing
administrative procedure. See Bennett, 520 U.S. at 178. The decision did not1

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mark the “consummation of the agency’s decisionmaking process” on the
substance of the matter. See id. at 177-78 (internal quotation marks omitted).
We note, in this connection, that the allegedly inaccurate statement by HHS
is inherently time-bound. Specifically, HHS stated, in 2001, that marijuana “has
no currently accepted medical use in treatment in the United States.” (emphasis
added). The statements for which Safe Access seeks correction are simply later
republications of the earlier statements and do not purport to apply to current
circumstances, as opposed to those in 2001. As a result, nothing in the statements
for which correction is sought is inconsistent with a finding that marijuana may
now, or at some point in the future, have an accepted medical use. Were HHS to
replace the statements with new statements finding the opposite to be true based on
current research, which is what Safe Access seeks, such a “correction” would not
address whether its original statement, made in 2001, was true at the time first
made. Thus, new statements by HHS concerning the medical efficacy of marijuana
that arise out of the DEA rescheduling proceedings will be equivalent to the new
statements from HHS sought by Safe Access’s IQA petition.
HHS’s letter to Safe Access referring the organization to the already pending
DEA rescheduling proceeding would only constitute final agency action if we
looked at the IQA in isolation. However, both the Office of Management and

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Budget (“OMB”) and HHS guidelines, which Safe Access does not challenge,
contemplate that under the IQA, HHS can use other administrative processes
outside the procedure enacted pursuant to the IQA to address correction requests.
Because HHS properly deferred its decision on Safe Access’s petition to an already
pending alternative procedure, rather than reaching the merits of the petition, its
decision is not reviewable final agency action.
AFFIRMED.

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