                               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 subject-

matter jurisdiction as a result.
        I.       Background

        In an effort to bolster public trust in the science and scientific process informing public-

policy 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/memorandum-

heads-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

                                                    3
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.



                                                  5
                      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).




       1
          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




        2
        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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