NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN SMALL BUSINESS 

LEAGUE, 

Plaintiff-Appellant, 

 v. 

MARIA CONTRERAS-SWEET, in her 

capacity as Administrator of the United 

States Small Business Administration, 

Defendant-Appellee.

No. 16-17096 

D.C. No. 3:16-cv-02410-VC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Vince Chhabria, District Judge, Presiding

Submitted February 13, 2018**

San Francisco, California

Before: HAWKINS and TALLMAN, Circuit Judges, and JACK,*** District Judge.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without 

oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Janis Graham Jack, United States District Judge for the 

Southern District of Texas, sitting by designation.

FILED

FEB 16 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The American Small Business League (the “League”) appeals the 

jurisdictional dismissal of its complaint. We have jurisdiction under 28 U.S.C. 

§ 1291 and affirm.

When a statute does not specifically make agency action reviewable, the 

Administrative Procedure Act (“APA”) limits the right of judicial review to “final”

agency action. 5 U.S.C. § 704. To be “final,” agency action must be: (1) the 

“consummation” of the agency’s decisionmaking process, not merely a tentative or 

interlocutory decision; and (2) one by which “rights or obligations have been 

determined,” or from which “legal consequences will flow.” Bennett v. Spear, 520 

U.S. 154, 177–78 (1997) (citations omitted).

The Small Business Act directs the President to “establish Governmentwide 

goals for procurement contracts awarded to small business concerns,” which “shall 

be established at not less than 23 percent of the total value of all prime contract 

awards for each fiscal year.” 15 U.S.C. § 644(g)(1)(A), (i). The Act also requires 

federal agencies to set individual goals, id. § 644(g)(2)(A), and directs the Small 

Business Administration (“SBA”) to submit an annual report to the President and 

Congress explaining whether federal agencies achieved these goals, id. 

§ 644(h)(2)(B)–(C). If any agency’s goal is not met, the SBA Administrator must

include in the SBA’s annual report: (1) the reason the goal was not achieved; and 

(2) “a description of actions planned by the applicable agency to address such failure, 
3 

including the Administrator’s comments and recommendations on the proposed 

remediation plan.” Id. § 644(h)(2)(D). Here, the League argues that the SBA’s 

fiscal year 2015 report does not comply with the Act because the SBA represented 

that agencies met their goals based on miscalculations and, thus, did not include the 

aforementioned information in its report.

The SBA report is plainly not a final agency action and is therefore not subject 

to judicial review under the APA. See Bennett, 520 U.S. at 177–78. This “purely 

informational” report is “primarily a tool for [Congress’] own use, without 

cognizable legal consequences.” Guerrero v. Clinton, 157 F.3d 1190, 1195, 1197 

(9th Cir. 1998); see also Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012).1

Although an agency must formulate a remediation plan if it does not reach its goal, 

15 U.S.C. § 644(h)(1)(D), there is no statutory obligation to follow the formulated

plan. “Having requested the report, Congress, not the judiciary, is in the best 

position to decide whether it’s gotten what it wants.” Guerrero, 157 F.3d at 1195. 

The district court thus correctly held it lacked subject matter jurisdiction.

AFFIRMED.

 

1 For the same reason, the League lacks standing. See Guerrero, 157 F.3d at 

1194–95 (“[T]he relief requested (a better report) cannot make any legal difference 

that will redress [the alleged] injury[.]”).