                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



AMERICANS FOR SAFE ACCESS,                       No. 07-17388

              Plaintiff - Appellant,             D.C. No. CV-07-01049-WHA

  v.
                                                 MEMORANDUM *
DEPARTMENT OF HEALTH &
HUMAN SERVICES; FOOD AND
DRUG ADMINISTRATION,

              Defendants - Appellees.



                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.


                                           2
      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.1 See Bennett, 520 U.S. at 178. The decision did not




      1
        In this regard, HHS’s decision to defer its determination differs from the
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.

                                           3
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


                                          4
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.




                                            5
