UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) SINGLE STICK, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1077 (RWR) ) MICHAEL JOHANNS, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Single Stick, Inc. brought this action against the

Secretary of Agriculture, and the United States Department of

Agriculture (collectively “USDA”) challenging the USDA’s

interpretation of The Fair and Equitable Tobacco Reform Act

(“Tobacco Reform Act”),

-519a, and alleging that

the USDA violated the Information Quality Act (“IQA”),

note. The USDA has moved under Federal Rule of Civil

Procedure 12(b)(6) to dismiss for failure to state a claim and

Single Stick has moved under Rule 56 for summary judgment.

Because the USDA’s interpretation of the Tobacco Reform Act

comports with congressional intent and is entitled to deference,

and because the IQA does not create any individual right to the

production or correction of information, the USDA’s motion to

dismiss, treated in part as a motion for summary judgment, will

be granted and Single Stick’s motion for summary judgment will be

denied as moot. -2-

BACKGROUND

Single Stick manufactures and sells “small” cigars –- those

that weigh less than three pounds per thousand cigars. (See

Compl. ¶ 5.) Under the Tobacco Reform Act, Single Stick, as a

tobacco manufacturer, must pay assessments to the Tobacco

Transition Payment Program (“Payment Program”). The funds

obtained through the Payment Program are used to subsidize

domestic tobacco farmers. (See

.) The Tobacco

Reform Act identifies six classes of tobacco products, including

cigarettes, cigars, snuff, roll-your-own tobacco, chewing

tobacco, and pipe tobacco. See 7 U.S.C. § 518d(c)(1). The

Commodity Credit Corporation (“CCC”), an agency within the USDA,

determines the annual assessments for which each class of tobacco

product will be responsible. See 7 U.S.C. § 518d(c)(1).

The Tobacco Reform Act sets forth how assessments are to be

calculated. “The assessment for each class of tobacco product

. . . shall be allocated on a pro rata basis among manufacturers

and importers based on each manufacturer’s or importer’s share of

gross domestic volume.”1 7 U.S.C. § 518d(e)(1). “The amount of

the assessment for each class of tobacco product . . . to be paid

1 Gross domestic volume is determined by “the volume of tobacco products . . . removed[.]” 7 U.S.C. § 518d(a)(2)(A). Removed tobacco consists of “the removal of tobacco products . . . from internal revenue bond . . . and shall also include the smuggling or other unlawful importation of such articles into the United States.”

(j). -3-

by each manufacturer or importer of that class of tobacco product

shall be determined . . . by multiplying –- (1) the market share

of the manufacturer or importer . . .; by (2) the total amount of

the assessment . . . for the class of tobacco product.” 7 U.S.C.

§ 518d(f). “The term ‘market share’ means the share of each

manufacturer or importer of a class of tobacco product . . . of

the total volume of domestic sales of the class of tobacco

product[.]” 7 U.S.C. § 518d(a)(3). For cigars, a manufacturer’s

or importer’s “volume[] of domestic sales shall be measured by

. . . the number of . . . cigars” it places into the domestic

market. 7 U.S.C. § 518d(g)(3). Implementing these rules, the

CCC derives the total number of cigars placed in the domestic

market from excise tax reports provided to the CCC by

manufacturers and importers. (Defs.’ Mem. in Opp’n to Summ. J.

(“Defs.’ Opp’n”) at 3.) See 7 U.S.C. § 518d(h);

. The CCC then determines an individual manufacturer or

importer’s pro rata share “by dividing the number of cigars from

[the] particular manufacturer or importer by the total number of

cigars [placed] in the domestic market [(“per-stick method”)].”

(Defs.’ Opp’n at 3.)

Using the per-stick method, the CCC assessed Single Stick

$339,719 for the period of October to December 2004 based on a

market share of 4.81 percent, $455,373 for the period of January

to March 2005 based on a market share of 6.45 percent, and -4-

$1,152,530 for the period of April to June 2005 based on a market

share of 7.78 percent.2 (See Compl. ¶ 20.) Single Stick timely

appealed these assessments, alleging that the USDA “substantially

overstated [its] ‘stick count’ market share and improperly

inflated [its] Payment Program obligation” because the per-stick

method resulted in an assessment “far in excess of Single Stick’s

pro rata share of the removed volume of cigar tobacco.” (Id.

¶¶ 21, 23-24.) Single Stick also filed a Freedom of Information

Act (“FOIA”) request seeking the CCC’s primary data sources

underlying the CCC’s calculations and an IQA petition seeking

both data source disclosure and information correction. (Id.

¶¶ 26-27.) The USDA denied Single Stick’s FOIA request3 and did

not respond to the IQA petition.4 (Id.)

Single Stick filed this action challenging the calculation

methods used by the USDA to determine Single Stick’s Payment

2 On administrative appeal, the USDA determined that Single Stick was paying more than its proportional share because of “the CCC’s admitted failure to meet [the Tobacco] Reform Act requirements when it issued an initial round of assessments.” (Compl. ¶ 35.) The USDA has since recalculated Single Stick’s assessments, and, as a result, raised Single Stick’s October to December 2004 assessment to $351,007.23 based on a market share of 5.32 percent, raised its January to March 2005 assessment to $472,017.47 based on a market share of 7.15 percent, and reduced its April to June 2005 assessment to $1,135,353.46 based on a market share of 7.78 percent. (See

.) 3 Single Stick does not challenge the FOIA request denial in this action. 4 Single Stick also filed an IQA Request for Reconsideration that went unanswered. -5-

Program assessments. Specifically, Single Stick argues that the

USDA violated the Tobacco Reform Act by assessing Single Stick in

excess of its pro rata share of removed tobacco product, by

assessing Single Stick without regard to its share of gross

domestic volume, by calculating market share without regard to

tobacco that was smuggled or unlawfully imported, and by

calculating Single Stick’s volume of domestic sales on a per-

stick basis. (See

(a).) As a result, Single Stick

contends that the USDA over-estimated Single Stick’s market

share. (See

(b).) Single Stick also alleges that the

USDA violated the IQA by “refus[ing] to respond or otherwise

acknowledge Single Stick’s IQA Petition and Request for

Reconsideration” and “by failing to correct influential

information [publicly] disseminated . . . and/or to make

available data and data sources Single Stick needed and requested

to test and reproduce the [USDA’s] estimate of market share.”

(Id. ¶¶ 44(c)-(d).) Finally, Single Stick contends that, because

the USDA failed to disclose the data underlying its market share

calculations, Single Stick’s due process right to a full and fair

administrative hearing was denied. (Id. ¶¶ 29, 44(e).)

The USDA has moved under Rule 12(b)(6) to dismiss Single

Stick’s claims, arguing that the USDA’s method of calculating

assessments was permitted under the Tobacco Reform Act, the IQA

did not create a right to production or correction of data, and -6-

the APA does not provide a remedy because “IQA production and

correction of data is ‘committed to agency discretion.’”5 (See

Defs.’ Mem. in Support of Its Mot. to Dismiss (“Defs.’ Mem.”) at

2-3 (citing

(a)(2) and Heckler v. Chaney,

(1985)).) Single Stick has moved for summary judgment

in its favor under Rule 56. In its opposition to Single Stick’s

summary judgment motion, the USDA suggests without opposition

that its motion to dismiss be converted to a motion for summary

judgment. (Defs.’ Opp’n at 2 n.1.)

DISCUSSION

I. TOBACCO REFORM ACT

Summary judgment may be granted only where “the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The relevant inquiry “is the

threshold inquiry of determining whether there is a need for a

trial -- whether, in other words, there are any genuine factual

issues that properly can be resolved only by a finder of fact

5 The USDA also argued that the USDA was statutorily prohibited from releasing the information that Single Stick requested. However, the USDA withdrew this argument in light of a recent Federal Register notice, see Tobacco Transition Payment Program; Release of Records,

(Apr. 29, 2008), explaining that the market share information reported to the CCC by manufacturers and importers is not confidential tax information. (Defs.’ Notice of Withdrawal of Argument at 2.) -7-

because they may reasonably be resolved in favor of either

party.” Anderson v. Liberty Lobby, Inc.,

(1986). In considering a motion for summary judgment, all

evidence and inferences to be drawn from the underlying facts

must be viewed in the light most favorable to the party opposing

the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986).

“When a court reviews an agency’s construction of the

statute which it administers, it is confronted with two

questions.” Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc.,

(1985). The first question is “whether

Congress has directly spoken to the precise question at issue.”

If it has, “the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.”

. However, “if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute.”

. In these

circumstances, a court “‘must defer to the agency’s

interpretation of the ambiguous statutory term if it represents a

reasonable accommodation of the conflicting policies that were

committed to the agency’s care by statute.’” Back Country

Horsemen of Am. v. Johanns,

(D.D.C. 2006)

(quoting New York v. EPA,

(D.C. Cir. 2005) -8-

(internal quotation marks omitted)). The agency’s construction

of the statute is given deference when “there is an express

delegation of authority to the agency to elucidate a specific

provision of the statute by regulation.” Chevron,

.

Congress expressly delegated authority under the Tobacco

Reform Act to the Secretary of the USDA to “promulgate such

regulations as are necessary to implement” the statute. 7 U.S.C.

§ 519a(a). Single Stick’s claims that the USDA’s implementation

of the Tobacco Reform Act is impermissible amount to assertions

that: (1) the USDA was not authorized to assess Single Stick on a

per-stick basis, but rather was required by the statute to

consider “the disparity in gross domestic volume between small

and large cigars,” and (2) the USDA should have accounted for

smuggled or unlawfully imported tobacco in calculating market

share. (See Compl. ¶ 44(a)(iii)-(iv).)

A. Per-stick method of calculating assessments

The USDA contends that the Tobacco Reform Act “dictates that

. . . assessments are based on the number of cigars, and not on

the weight of tobacco in the cigars.” (Defs.’ Mem. at 13.) They

ground their argument in support of a per-stick measurement of a

manufacturer’s volume of domestic sales in the plain language of

the Tobacco Reform Act, which provides that “volumes of domestic

sales shall be measured by -- in the case of cigarettes and -9-

cigars, the number of cigarettes and cigars[.]” 7 U.S.C.

§ 518d(g)(3)(A). Single Stick contends that such a reading of

the Tobacco Reform Act fails to take into account the requirement

that volume of domestic sales be measured by gross domestic

volume, see 7 U.S.C. § 518d(g)(2), which considers the amount of

tobacco products removed, see 7 U.S.C. § 518d(a)(2)(A), and that

each manufacturer is to be assessed its pro rata share of gross

domestic volume. See 7 U.S.C. § 518d(e)(1). Even if ambiguity

exists as to whether the Tobacco Reform Act requires a per-stick

calculation method, the USDA’s method is a permissible

construction of that Act given the clear support for it in the

directive of 7 U.S.C. § 518d(g)(3)(A).

The USDA further maintains that by using a per-stick

calculation method, Single Stick is not being assessed in excess

of its pro rata share of gross domestic volume. (See Defs.’ Mem.

at 13-14.) Instead, the USDA argues that Single Stick’s pro rata

share of gross domestic volume is determined by calculating

Single Stick’s volume of domestic sales, and that such a

calculation, utilizing the per-stick method, is warranted under

the Tobacco Reform Act. (See id.) The Tobacco Reform Act

requires that each class of tobacco product be assessed under the

Payment Program. See 7 U.S.C. § 518d(c)(1). The statute does

not differentiate between small and large cigars, but groups all

cigars into a class of tobacco product from which assessments are -10-

to be obtained. See 7 U.S.C. § 518d(c)(1)(B). With respect to

individual manufacturers, the Tobacco Reform Act specifies that

assessments are to be made based in part on that manufacturer’s

market share, see 7 U.S.C. § 518d(f), which is measured using the

manufacturer’s volume of domestic sales. See 7 U.S.C.

§ 518d(a)(3). The statute explains that volume of domestic sales

for cigar manufacturers is measured by the number of cigars. See

7 U.S.C. § 518d(g)(3)(A). Additional support for the per-stick

method of calculating cigar manufacturer’s assessments is found

in the language of the Tobacco Reform Act that separates cigars

and cigarettes from other classes of tobacco products whose

volume of domestic sales is measured “in terms of pounds[.]” 7

U.S.C. § 518d(g)(3)(B). Thus, the USDA’s interpretation of the

Tobacco Reform Act to allow for a per-stick calculation method is

not contrary to clear congressional intent, but is a permissible

construction of the statute and will be accorded deference.

B. Smuggled or unlawfully imported tobacco

Single Stick alleges that the USDA violated the Tobacco

Reform Act by calculating volume of domestic sales based solely

on information submitted to the agency, and not taking into

consideration cigars smuggled or unlawfully imported. (See

Compl. ¶ 44(a)(iii).) In response, the USDA argues that the

Tobacco Reform Act does not require that smuggled or unlawfully -11-

imported cigars be considered in calculating market share. (See

Defs.’ Mem. at 14-15.)

Although Single Stick cites the definition of gross domestic

volume in support of its contention that the Tobacco Reform Act

dictated that smuggled and unlawfully imported cigars be included

in the USDA’s calculation of market share (see Pl.’s Opp’n at

14), market share is not measured by gross domestic volume, but

by the volume of domestic sales. See 7 U.S.C. § 518d(a)(3). The

Tobacco Reform Act provides that “the calculation of the volume

of domestic sales . . . shall be . . . based on information

provided by the manufacturers and importers . . ., as well as any

other relevant information provided to or obtained by the

Secretary.” 7 U.S.C. § 518d(g)(1). Tobacco manufacturers and

importers are asked to submit information relating to “the

removal of tobacco products into domestic commerce,” 7 U.S.C.

§ 518d(h)(2), which includes “the removal of tobacco products

. . . from internal revenue bond . . . and shall also include the

smuggling or unlawful importation of such articles into the

United States.”

(j). The Tobacco Reform Act

does not specify whether the Secretary is required to

affirmatively seek information about smuggled or unlawfully

imported tobacco products in determining the volume of domestic

sales, or whether the Secretary is simply required to incorporate

this information if it is available. The Tobacco Reform Act’s -12-

implementing guidelines state that the calculation is to be based

on “reports filed by domestic manufacturers and importers of

tobacco with the Department of Treasury and the Department of

Homeland Security and shall correspond to the quantity of the

tobacco product that is removed into domestic commerce by each

such entity[.]”

(b). As such, the USDA’s

decision to calculate market share based on information submitted

does not contradict clear congressional intent.

The plain language of the Tobacco Reform Act and its

implementing guidelines support the reasonableness of the USDA’s

interpretation that the statute did not require incorporation of

smuggled or unlawfully imported cigars in the USDA’s calculation

of volume of domestic sales where that information had not been

provided by manufacturers or importers. While an interpretation

of the Tobacco Reform Act to require a calculation based on

amount of removed tobacco volume -- both reported and smuggled or

unlawfully imported -- may also be reasonable, the USDA need not

prove that the “agency construction was the only one it

permissibly could have adopted [for a court] to uphold the

construction, or even the reading the court would have reached if

the question initially had arisen in judicial proceeding.”

Chevron,

n.11. Thus, the USDA’s interpretation

of the Tobacco Reform Act as not requiring inclusion of all

smuggled or unlawfully imported cigars in calculating volume of -13-

domestic sales constitutes a permissible construction of the

statute and will be given deference.

C. Administrative hearing

Single Stick claims that its “due process right[] to a full

and fair hearing” was impaired by the USDA’s failure to disclose

the market share data underlying its assessments. (Compl. ¶ 9.)

This claim must fail because Single Stick has not shown any

prejudice resulting from the USDA’s lack of disclosure. See

Throckmorton v. Nat’l Transp. Safety Bd.,

(D.C.

Cir. 1992) (finding no due process violation where plaintiff

failed to show prejudice caused by alleged errors in the

administrative proceeding). To the extent Single Stick

challenged the CCC’s calculation methodology, access to the

market share data for the per-stick method was irrelevant and,

for the reasons already stated, the administrative law judge

correctly concluded that the CCC’s per-stick calculation method

was a permissible interpretation of the Tobacco Reform Act.

Single Stick advanced on appeal two other arguments that,

under the per-stick method, CCC’s assessments were incorrect.

The first argument was the CCC did not include tobacco companies

that failed to report production data to the CCC in the total

market calculation, but such companies’ excise tax information

was available and should have been used. (Pl.’s Mot. for Summ.

J., Ex. 7 at 4-6.) However, the CCC conceded that it should -14-

have used unreported but accessible data and recalculated its

assessments. (Id. at 5-6.) The second argument was the CCC

unlawfully exempted small manufacturers and importers with a

market share of .000049 or less. (Id. at 7-8.) The Tobacco

Reform Act states that market share must be “expressed as a

decimal to the fourth place.” 7 U.S.C. § 518d(a)(3). The

statute does not discuss when or how the CCC may round

calculation figures to reach the market share figure. The CCC’s

practice at the time of the challenged assessments was to round

up fractional digits of 50 or more after the fourth decimal place

by adding one to the fourth decimal place and dropping fractional

digits of 49 or less beyond the required four decimal places to

result in the exclusion of manufacturers and importers with

market shares of .000049 or less. (Pl.’s Ex. 7 at 8.) Because

the statute does not instruct the CCC how to reach the final

four-decimal market share figure and the CCC’s rounding rule is a

permissible interpretation, it will be accorded deference. As

Single Stick has not alleged that access to the market share data

information would have altered the outcome of its administrative

claim, there is no showing of any prejudice caused by the USDA’s

failure to disclose its data. Thus, Single Stick has neither

alleged nor shown a due process violation. -15-

II. IQA

Under Rule 12(b)(6), a party may move to dismiss a complaint

for failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6). “On review of a 12(b)(6) motion a

court ‘must treat the complaint's factual allegations as true

. . . and must grant plaintiff the benefit of all inferences that

can be derived from the facts alleged.’” Holy Land Found. for

Relief & Dev. v. Ashcroft,

(D.C. Cir. 2003)

(quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)). “While a complaint attacked by a Rule

12(b)(6) motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of

his entitle[ment] to relief requires more than labels and

conclusions . . . .” Bell Atl. Corp. v. Twombly,

,

555 (2007) (citations and internal quotations omitted). “Factual

allegations must be enough to raise a right to relief above the

speculative level . . . on the assumption that all of the

allegations in the complaint are true . . . .”

Single Stick alleges that the USDA violated the IQA by

failing to correct or disclose its data sources underlying its

market share calculations and by failing to respond to Single

Stick’s petition and request for reconsideration. To allow a

plaintiff to seek review of an agency’s violation of a statute,

the court must examine “whether or not Congress intended to -16-

confer individual rights upon a class of beneficiaries” in

enacting the statute. Gonzaga Univ. v. Doe,

(2002). “The question is not simply who would benefit from the

Act, but whether Congress intended to confer federal rights upon

those beneficiaries.” California v. Sierra Club,

(1981). To make this determination, a court should focus on

whether the statute contains “rights-creating language,” see

Gonzaga Univ.,

, which is language that emphasizes

the individuals protected rather than simply dictating the

actions an agency should take. See Alexander v. Sandoval,

(2001) (holding that “[s]tatutes that focus on the

person regulated rather than the individuals protected create ‘no

implication of an intent to confer rights on a particular class

of persons’” (quoting Sierra Club,

)).

The IQA “creates no legal rights in any third party,” and

“does not create a legal right to access to information or to

correctness.” Salt Inst. v. Leavitt,

, 159 (4th Cir.

2006). Both the actual text of the statute and its implementing

guidelines dictate the actions that agencies must take and do not

contain “individually focused terminology.” Gonzaga Univ.,

; see

note (“The Director [of the

Office of Management and Budget (“OMB”)] shall . . . issue

guidelines . . . that provide policy and procedural guidance to

Federal agencies . . . ”); see also Guidelines for Ensuring and -17-

Maximizing the Quality, Objectivity, Utility, and Integrity of

Information Disseminated by Federal Agencies,

,

8458 (Feb. 22, 2002) (republication) (ordering that agencies

should “[i]ssue their own information quality guidelines[,] . . .

[e]stablish administrative mechanisms[, and] . . . report to the

Director of OMB the number and nature of complaints”). The focus

of the IQA is the communication between agencies and the

development of internal procedures for ensuring quality of

information. While the statute obligates agencies to establish a

process by which individuals can alert an agency to a need for

information correction to improve information quality, the

statute does contain any indication that individuals choosing to

participate in such a process have a right to seek or correct

information. See 67 Fed. Reg. at 8458-59. Because the IQA lacks

any rights-creating language, Single Stick has no right under

that statute to seek review of the USDA’s actions.

In addition, Single Stick’s challenge under the APA to the

USDA’s failure to respond to its IQA petition and request for

reconsideration cannot stand because there was no final agency

action. An agency action is reviewable under the APA only if the

action is a final agency action. Norton v. S. Utah Wilderness

Alliance,

(2004). A final agency action is

one where “‘rights or obligations have been determined,’ or from

which ‘legal consequences will flow[.]’” Bennett v. Spear, 520 -18-

U.S. 154, 178 (1997) (quoting Port of Boston Marine Terminal

Ass’n v. Rederiaktiebolaget Transatlantic,

(1970)). Because the IQA does not vest any party with a right to

information or to correction of information, see Salt Inst., 440

F.3d at 159, the USDA’s actions under the IQA did not determine

Single Stick’s rights or cause any legal consequence. See Ams.

for Safe Access v. HHS, No. C 07-01049 WHA,

, at

*4 (N.D. Cal. July 24, 2007) (holding that because the IQA does

not grant any legal rights, there was no legal consequence

flowing from the defendant’s response to the plaintiff’s IQA

petition). Accordingly, the USDA’s lack of response was not a

final agency action and cannot be reviewed under the APA. See

CONCLUSION

The USDA’s interpretations of the Tobacco Reform Act are

entitled to Chevron deference and the USDA’s failure to provide

the market share data underlying its assessments did not alter

the outcome of Single Stick’s administrative action. Since no

material facts are in dispute regarding Single Stick’s claims

under the Tobacco Reform Act and the USDA is entitled to

judgment, the defendants’ motion to dismiss this claim, treated

as a motion for summary judgment, will be granted. Because the

IQA does not confer any rights to individuals, the defendants’ -19-

motion to dismiss plaintiff’s IQA claims will be granted. Single

Stick’s motion for summary judgment will be denied as moot.

A final, appealable Order accompanies this Memorandum

Opinion.

SIGNED this 10th day of March, 2009.

________/s/_________________ RICHARD W. ROBERTS United States District Judge