NOT FOR PUBLICATION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.

* T his 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 f or the

Southern District of Texas, sitting by designation. 

# FILED

FEB 16 2018

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

The American Small Business League (the “Leagu e”) 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 r eview to “ final ”

agency action. 5 U.S.C. § 704. To be “ f inal, ” 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 prim e contract

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

federal a gencies to set individual goals, i d. § 644(g) (2)(A), and directs t he Small

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

Congress explain ing whether federa l agencies achieved these goals, i d.

§ 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 desc ription of actions planned by the applicable agency to address such failure,3

including the Administrator’s comments and recommendations on the proposed

reme diation 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

.

T he 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 [Co ngress’] 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

A lthough an agency must formulate a remediation plan if it do es not reach its goal

,

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

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

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

T he 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 ] inj ury [ .]”).