PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. UNITED STATES DEPARTMENT OF AGRICULTURE

Filing 19

MEMORANDUM OPINION AND ORDER granting 12 Defendant's motion to dismiss for lack of jurisdiction and dismissing, without prejudice, 1 Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Signed by Judge Christopher R. Cooper on 7/15/2016. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY,
Plaintiff,
v.

Case No. 15-cv-02023 (CRC)

UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant.
MEMORANDUM OPINION AND ORDER
On May 10, 2013, the United States Department of Agriculture (“USDA”) issued an
internal regulation establishing a Scientific Integrity Policy (“SIP” or “the Policy”) for the
Department. The SIP directs Department scientists to limit their statements on policy-related
issues to their own scientific findings and to avoid making public comments that could be
construed as judgments or recommendations on federal policy itself. Plaintiff Public Employees
for Environmental Responsibility (“PEER”), a nonprofit organization that advocates on behalf of
government employees in the environmental field, objects to the Policy on First Amendment
grounds: The Policy, it contends, prevents USDA scientists from speaking or writing publicly—
even in their capacities as private citizens—on matters of public concern. PEER has not shown,
however, that any of its members is likely to be affected by the Policy in the future. PEER thus
lacks standing to challenge it, and the Court will dismiss PEER’s complaint for lack of subjectmatter jurisdiction as a result.

I.

Background

In an effort to bolster public trust in the science and scientific process informing publicpolicy decisions, President Obama issued a memorandum directing executive departments and
agencies to take steps to promote principles of scientific integrity in their work. 74 Fed. Reg.
10,671 (Mar. 11, 2009), available at https://www.whitehouse.gov/the-press-office/memorandumheads-executive-departments-and-agencies-3-9-09; see also id. (“Each agency should have
appropriate rules and procedures to ensure the integrity of the scientific process within the
agency.”). As part of this effort, USDA subsequently adopted a departmental regulation
establishing its own Scientific Integrity Policy and “provid[ing] instruction and guidance to
Departmental leadership, employees, and contractors to ensure the highest level of integrity in all
aspects of the executive branch’s involvement with scientific and technological processes and
analysis.” Departmental Regulation 1074-001: Scientific Integrity (May 10, 2013) (“SIP”) § 1,
available at http://www.ocio.usda.gov/sites/default/files/docs/2012/DR%201074-001_0.pdf. At
issue in this case is one specific requirement in the Policy:
[S]cientists should refrain from making statements that could be construed as being
judgments of or recommendations on USDA or any other federal government
policy, either intentionally or inadvertently. Communications on such matters
should remain within the bounds of their scientific findings. Such scientific and
technical communications for non-USDA media . . . should follow agency level
technical review procedures . . . .
Id. § 5(e)(2).
Dr. Jonathan Lundgren, a PEER member and a research entomologist formerly employed
at USDA—and who is not himself a plaintiff in this case—claims that this requirement has
burdened his free-speech rights in the past. Compl. ¶ 15. For instance, according to Lundgren,
“USDA leadership specifically cited § 5(e)(2) on September 15, 2014 in forbidding [him] . . . to
submit an article to non-USDA scientific journals.” Id. ¶ 22. Agency leadership also forbade

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Dr. Lundgren in March 2014 from speaking publicly about an article he had co-authored and in
May 2014 from discussing his research on pesticides at an international conference. Id. ¶ 23.
Dr. Lundgren resigned from his position at USDA nearly two years later and now directs a
nonprofit research organization, Decl. Jonathan Lundgren ¶ 4, where he “fully intend[s] to
regularly apply for USDA grants, cooperation agreements, partnerships, and/or contracts related
to [his] ongoing scientific research activities,” id. ¶ 6.
In response to instances like these, which it viewed as suppression of scientific discourse
by agency management, PEER petitioned USDA under 5 U.S.C. § 553(e) to change the Policy
and eliminate the requirement at issue. Compl. ¶ 24. PEER’s petition, filed in March 2015, also
asked USDA to adopt certain “best practices” included in other agencies’ scientific integrity
policies. Id. ¶ 25. USDA replied three months later, denying PEER’s petition on the ground that
the SIP involves “matters of agency management” and “personnel policy,” which are exempt
from the rulemaking provision of the Administrative Procedure Act (“APA”). Pl.’s Opp’n Mot.
Dismiss Ex. 2 (citing 5 U.S.C. § 553(a)(2)). PEER then brought suit in this Court, contending
that USDA’s denial of its petition was arbitrary, capricious, and an abuse of discretion (Count
One); that Subsection 5(e)(2) of the SIP violates the First Amendment of the U.S. Constitution
(Count Two); and that USDA unlawfully failed to provide for public notice and comment before
issuing its SIP (Count Three). USDA has moved to dismiss PEER’s complaint under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6)
for failure to state a claim.
II.

Standard of Review

Federal courts are courts of limited jurisdiction. On a Rule 12(b)(1) motion to dismiss,
the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court may examine materials
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outside the pleadings as it deems appropriate in order to resolve the question of its jurisdiction.
See Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), aff’d, 2001
WL 135857 (D.C. Cir. Jan. 18, 2001) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992)).
A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted if
the allegations in a complaint do not “contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the Court must
accept the facts pleaded as true, legal assertions devoid of factual support are not entitled to this
assumption. See Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
III.

Analysis

In order for the Court to have subject-matter jurisdiction over this challenge to agency
action, the plaintiff must have standing to sue. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987) (“The defect of standing is a defect in subject matter jurisdiction.”). An association such
as PEER has
standing to sue on behalf of its members if: “(1) at least one of its members would
have standing to sue in his own right, (2) the interests the association seeks to
protect are germane to its purpose, and (3) neither the claim asserted nor the relief
requested requires that an individual member of the association participate in the
lawsuit.”
Chamber of Commerce of U.S. v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Sierra Club
v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)). “When a [plaintiff] claims associational standing,
it is not enough to aver that unidentified members have been injured. Rather, the [plaintiff] must
specifically ‘identify members who have suffered the requisite harm.’” Id. (quoting Summers v.
Earth Island Inst., 555 U.S. 488, 499 (2009)). PEER claims that it “has associational standing to
sue through its members whom [USDA’s] decision impacts,” specifically Dr. Lundgren. Compl.
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¶ 15. Even considering the declaration of Dr. Lundgren, however, the Court finds that PEER has
not shown that any of its members is likely to suffer an injury in the future as a result of USDA’s
Scientific Integrity Policy—and thus that any of its members would have standing to sue. And
without making that showing, PEER lacks standing to seek to have the Policy set aside or to
force USDA to reissue the Policy pursuant to notice-and-comment procedures. Accordingly, the
Court will dismiss PEER’s complaint under Rule 12(b)(1) for lack of subject-matter jurisdiction
and decline to address its merits at this time.
A.

Standing

Dr. Lundgren, the only PEER member identified in the complaint, is no longer employed
at USDA. See Lundgren Decl. ¶ 4. However, he “fully intends to regularly apply for USDA
grants, cooperation agreements, partnerships, and/or contracts related to his ongoing scientific
research activities, and . . . already has several grants pending decision and is developing
proposals for others.” Pl.’s Opp’n Mot. Dismiss 4 (citing Lundgren Decl. ¶ 6). PEER contends
that these facts suffice to demonstrate future injury to Dr. Lundgren because “the Policy applies
to USDA contractors, cooperators, partners, permittees, lessees, and grantees,” in addition to
USDA employees. Id. According to PEER, Dr. Lundgren will be required to comply with
Subsection 5(e)(2) of the SIP in his capacity as a USDA grantee and will therefore suffer an
injury from its continued enforcement against him.
PEER’s argument fails in two regards. First, Dr. Lundgren is not currently a recipient of
any USDA grant, and his assertion that he will receive a USDA grant in the near future is only
speculative. Second, even if Dr. Lundgren were to receive a USDA grant, the Court finds that he
would not necessarily or even likely be bound by the terms of Subsection 5(e)(2) of the SIP. The
Court will address both points in turn.

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1.

Dr. Lundgren’s Status as a Potential USDA Grantee

Because Dr. Lundgren is no longer employed by USDA, the only other way he could
conceivably be subject to the requirements of the Department’s SIP is as a grantee or through
some similar linkage to USDA. The Court understands that he “intend[s]” to apply for grants at
some point in the future and that he has “several grants pending decision.” Lundgren Decl. ¶ 6.
And Dr. Lundgren may personally “have no reason to believe that [he] or [his] organization will
not receive them.” Id. At present, however, the Court could only speculate that Dr. Lundgren
will receive a grant in the future from USDA. Furthermore, neither the Court—nor Dr.
Lundgren for that matter—can currently predict what the terms of any such grant might be,
including whether by its terms it would require him to comply with Subsection 5(e)(2) of the
SIP.1 Thus, although Dr. Lundgren “claims to have been harmed in the past by an agency
policy,” PEER has yet to “make a ‘showing of [a] real or immediate threat that [he] will be
wronged again’ by that policy.” Tipograph v. U.S. Dep’t of Justice, No. 1:13-CV-00239 (CRC),
2015 WL 7566660, at *3 (D.D.C. Nov. 24, 2015) (first alteration in original).

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In fact, the only clue to the terms of any grant agreement USDA might make with Dr.
Lundgren points in the opposite direction: USDA has identified standard terms and conditions
for USDA grants, put in place after the SIP took effect. See Def.’s Reply 8 (citing National
Institute of Food and Agriculture, U.S. Department of Agriculture, Research Terms and
Conditions, Agency-Specific Terms and Conditions (Oct. 2014), available at
https://www.nsf.gov/pubs/policydocs/rtc/agencyspecifics/nifa_1014.pdf (last visited July 15,
2016); National Institute of Food and Agriculture, U.S. Department of Agriculture, Terms and
Conditions, Small Business Innovation Research Grants Program (Apr. 2015), available at
https://nifa.usda.gov/sites/default/files/resource/SBIR2015%20APRIL%20FINAL.pdf (last
visited July 15, 2016)). None of the standard terms indicates that grantees are subject to the
requirements of the SIP. Relatedly, none provides any enforcement mechanism for violating the
SIP.
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2.

Grantees’ Obligations Under the SIP

PEER also contends that the SIP—of its own force—requires Dr. Lundgren to comply
with Subsection 5(e)(2).2 PEER’s argument, however, is based on a misreading of the Policy.
Subsection 5(e)(2) simply requires scientists employed by USDA to abide by certain restrictions
in speaking on matters of federal policy; it does not, on its own, limit any speech by Department
grantees who also happen to be scientists.
PEER’s argument that Subsection 5(e)(2) directly imposes requirements on USDA
grantees stems from two main observations about the Policy: First, the Policy states that it
“applies” not just to employees, but also to “[a]ll contractors, cooperators, partners, permittees,
lessees, and grantees that assist with developing or applying the results of scientific and technical
activities on behalf of USDA”; second, Subsection 5(e)(2) speaks of “scientists” without

qualification.
PEER is no doubt correct that the Policy has a broad scope and is intended to guide the
behavior of a wide swath of USDA stakeholders. Yet that does not mean that every provision of
the policy is equally applicable to those who are employed by the Department and to those who
are not, or that the responsibilities of all those individuals are the same. Despite general
language indicating that the SIP “applies” in some fashion to many individuals connected to but
not employed by USDA, see SIP § 6(a), the background section explains with more specificity
that the Policy primarily “directs [USDA] employees, political and career, on both the proper use
of scientific findings and the principles of conducting scientific activities consistent with the
Presidential Memorandum on Scientific Integrity.” Id. § 2 (emphasis added). In addition, the

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This argument is premised, of course, on the assumption that Dr. Lundgren will in fact
be awarded a USDA grant.
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Policy lays out the particular responsibilities of employees at USDA as compared to those of
mere contractors, cooperators, partners, permittees, lessees, or grantees: USDA employees “are
responsible for . . . complying with the policy and any additional agency/office-specific
guidance.” SIP § 6(i) (emphasis added). By contrast, those other classes of individuals “are
responsible for abiding by the principles contained in th[e] policy regarding the integrity of the
Department’s scientific and scholarly activities,” and even then, only “as specified in written
agreements or statements of work.” Id. § 6(f) (emphasis added). The entire Policy thus
“applies” very differently to USDA employees than to USDA contractors, cooperators, partners,
permittees, lessees, and grantees.
It is also clear in context that Section 5(e) as a whole—the larger section at issue in this
case—directly binds only USDA scientists. That conclusion follows from Section 5(e)’s
repeated use of the term “USDA scientists,” followed by the word “scientists” for short. For
instance, the first subsection within Section 5(e) states that USDA’s policy is to “[e]ncourage,
but not require, USDA scientists to participate in communications with the media regarding their
scientific findings. Scientists are expected to coordinate with their immediate supervisors and
public affairs office in accordance with the policies of their specific agencies [within USDA].”
Id. § 5(e)(1) (emphasis added). The term “USDA scientists” then makes another brief
appearance, and the next subsection continues by explaining how “scientists may communicate
their findings” and cautioning that “scientists should refrain from making statements that could
be construed as judgments of or recommendations on USDA or any other federal government
policy.” Id. § 5(e)(2).
PEER reads much into the distinction between these two terms: Had USDA intended the
requirement at issue to bind only USDA scientists, the argument goes, it would have said so
explicitly. See Pl.’s Sur-reply 2. PEER emphasizes that Subsection 5(e)(1) at one point refers to
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“USDA scientists” whereas Subsection 5(e)(2) refers only to “scientists.” See id. Yet the
entirety of Section 5(e) demonstrates that it uses the terms “scientists” and “USDA scientists”
interchangeably. Moreover, it would be remarkable if USDA—through its internal policy—
intended to bind persons outside the agency by implication and without saying so expressly.
When Subsection 5(e)(2) speaks of scientists, then, it simply refers back to the term “USDA
scientists” in the first sentence of the prior subsection.
Finally, as USDA observes, “[t]he policy contains no mechanism by which any of its
terms could be enforced against individuals who are not employees of the agency.” Def.’s
Reply 1. USDA obviously has the ability to enforce the terms of the SIP against its own
employees. However, if USDA meant to enforce the Policy against individuals outside the
agency, it presumably would have included some mechanism by which it could sanction or
penalize those who violate it. Perhaps unsurprisingly, there is no indication that USDA has ever
attempted to enforce the overall Policy, or Subsection 5(e)(2) specifically, against non-USDA
employees or that it has ever tried to penalize an individual outside the agency for violating it.
These facts further support USDA’s unequivocal representation that Subsection 5(e)(2) of the
Policy does not bind non-USDA scientists and that it could not (and would not) act to enforce the
Policy against those individuals, at least absent a separate contractual agreement specifically
allowing it to do so. See id.
IV.

Conclusion

At a minimum, what PEER must show is that at least one of its members is a USDA
employee, subject to the Policy, who is suffering or will in the near future suffer some injury as a
result of the Policy. Because Dr. Lundgren would not currently have standing to bring this
action against USDA, PEER is left with “nothing more than sheer speculation to support the
suggestion that its members will . . . face ‘real and immediate threat[s]’ of harm, sufficient to
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establish the association’s standing to pursue [its] claim.” Munsell v. U.S. Dep’t of Agric., 509
F.3d 572, 584 (D.C. Cir. 2007) (first alteration in original) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 105 (1983)). While PEER may of course amend its complaint to allege
additional facts, identify other individuals, and provide evidence in support of the standing of its
members (and thus its own standing), the current complaint and corresponding affidavit are
fatally lacking. Therefore, it is hereby
ORDERED that [12] Defendant’s motion to dismiss for lack of jurisdiction be
GRANTED. It is further
ORDERED that [1] Plaintiff’s complaint be DISMISSED, without prejudice, pursuant
to Federal Rule of Civil Procedure 12(b)(1).
SO ORDERED.

CHRISTOPHER R. COOPER
United States District Judge
Date:

July 15, 2016

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