Trudeau v. Federal Trade Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2006 Decided July 28, 2006

No. 05-5363

KEVIN TRUDEAU,
APPELLANT

v.

FEDERAL TRADE COMMISSION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 05cv00400)

David J. Bradford argued the cause for appellant. With him
on the briefs were Daniel J. Hurtado and Daniel Mach.

Lewis Yelin, Attorney, U.S. Department of Justice, argued
the cause for appellee. With him on the brief were Peter D.
Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.
Attorney, and Douglas N. Letter, Litigation Counsel.

Before: HENDERSON and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge GARLAND.
 2

GARLAND, Circuit Judge: Plaintiff Kevin Trudeau
challenges a Federal Trade Commission (FTC) press release that
reported the settlement of a case the agency brought against him
for false and misleading advertising. Trudeau alleges that the
press release is itself false and misleading, and that, in issuing
it, the FTC exceeded its statutory authority and violated his First
Amendment rights. The district court held that it lacked
jurisdiction to review Trudeau’s claims and, in the alternative,
that Trudeau failed to state a claim upon which relief can be
granted.

This case raises a host of complicated questions regarding
the jurisdiction and authority of federal courts. In the end,
however, it comes down to whether Trudeau has the right to take
a red pencil to the language of the FTC’s press release. He does
not. Consequently, although we disagree with the district
court’s jurisdictional holding, we affirm its dismissal for failure
to state a claim.

I

Plaintiff Trudeau is a best-selling author and producer of
radio and television information-commercials (“infomercials”).
He has used his books and infomercials to promote a wide
variety of products as cures for medical conditions ranging from
cancer and multiple sclerosis to hair loss and obesity. He has
also been an outspoken critic of the FTC.

In 2001 and 2002, Trudeau began marketing two new
products in nationally-televised infomercials. He billed the first,
a calcium supplement called “Coral Calcium Supreme,” as an
effective treatment for cancer, multiple sclerosis, lupus, heart
disease, and high blood pressure. He marketed the second, a
product called “Biotape” that consists of adhesive strips
resembling electrical tape, as a “space age mylar” that “connects
 3

the broken circuits” in the body. Trudeau v. FTC, 384 F. Supp.
2d 281, 284 (D.D.C. 2005) (internal quotation marks omitted).
Trudeau claimed that Biotape could provide permanent relief
from debilitating back pain, as well as pain due to arthritis,
sciatica, and migraine headaches.

In June 2003, the FTC filed a complaint against Trudeau in
the United States District Court for the Northern District of
Illinois, alleging that Trudeau’s marketing of Coral Calcium
Supreme and Biotape was false and misleading, in violation of
the Federal Trade Commission Act, 15 U.S.C. § 41 et seq. The
Commission also filed a motion for an order to show cause why
Trudeau should not be held in contempt for violating a 1998
court order that, among other things, prohibited him from
making unsubstantiated claims about consumer products. On
July 1, 2003, the parties agreed to, and the court entered, a
stipulated preliminary injunction barring Trudeau from making
the challenged representations about Coral Calcium Supreme
and Biotape. Eleven months later, after Trudeau had once again
started advertising Coral Calcium Supreme, the FTC asked the
court to hold Trudeau in contempt for violating the preliminary
injunction. On June 29, 2004, the court granted the
Commission’s motion, held Trudeau in contempt, and ordered
him to halt all advertising of Coral Calcium Supreme. See
Trudeau, 384 F. Supp. 2d at 284.

On September 2, 2004, the parties agreed to, and the court
entered, a Stipulated Final Order for Permanent Injunction and
Final Judgment (“2004 Final Order”) that resolved all pending
FTC complaints against Trudeau. The 2004 Final Order
“permanently enjoin[s] and restrain[s]” Trudeau from
“producing, disseminating, [or] making . . . any representation
in an infomercial aired or played on any television or radio
media.” 2004 Final Order at 8. The order contains an exception
permitting Trudeau to make representations in “the television or
 4

radio media” in connection with “any book, newsletter or other
informational publication,” provided that the publication does
not refer to a product or service that Trudeau is promoting, is not
an advertisement for any product or service, and is not sold,
promoted, or marketed in conjunction with any product or
service that is related to the content of the publication. Id. at 9.
This exception is limited to infomercials that do not
“misrepresent the content of the book, newsletter or
informational publication.” Id. The order further bars Trudeau
from marketing “any product containing coral calcium” and
from making representations regarding the benefits of any
product unless the representations are true and not misleading.
Id. at 9-11.

The 2004 Final Order also enters “[j]udgment” against
Trudeau for “equitable monetary relief in the amount of two
million dollars,” id. at 16, but states that “[n]o portion of any
payments under the judgment herein shall be deemed a payment
of any fine, penalty or punitive assessment,” id. at 17-18. In
addition, the order states that Trudeau “expressly den[ies] any
wrongdoing or liability for any . . . matters,” and that “[t]here
have been no findings or admissions of wrongdoing or liability
. . . other than the finding against Kevin Trudeau for contempt”
for violating the July 2003 stipulated preliminary injunction. Id.
¶ 8.

On September 7, 2004, five days after entry of the 2004
Final Order, the FTC posted on its website a press release
entitled “Kevin Trudeau Banned from Infomercials,” and
subtitled “Trudeau Settles Claims in Connection with Coral
Calcium Supreme and Biotape.” App. 51. The press release is
the central focus of Trudeau’s suit against the Commission.
 5

The first two paragraphs of the release describe the general
contours of the settlement incorporated in the 2004 Final Order.
The first sentence states:

A Federal Trade Commission settlement with Kevin
Trudeau -- a prolific marketer who has either appeared
in or produced hundreds of infomercials -- broadly
bans him from appearing in, producing, or
disseminating future infomercials that advertise any
type of product, service, or program to the public,
except for truthful infomercials for informational
publications.

Id. After further describing the terms of the settlement, the first
paragraph ends with this statement: “Trudeau agreed to these
prohibitions and to pay the FTC $2 million to settle charges that
he falsely claimed that a coral calcium product can cure cancer
and other serious diseases and that a purported analgesic called
Biotape can permanently cure or relieve severe pain.” Id.

The second paragraph details the settlement’s financial
terms. It states that “Trudeau is paying $500,000 in cash and
transferring residential property located in Ojai, California, and
a luxury vehicle to the Commission to satisfy the $2 million
monetary judgment against him.” Id.

The pertinent remaining portions of the press release are the
third and sixth paragraphs, and a disclaimer at the end of the
text. The third paragraph contains a quotation from Lydia
Parnes, Acting Director of the FTC’s Bureau of Consumer
Protection, which states:

“This ban is meant to shut down an infomercial empire
that has misled American consumers for years. . . .
 6

Other habitual false advertisers should take a lesson;
mend your ways or face serious consequences.”

Id. The sixth paragraph contains additional details about the
terms of the 2004 Final Order. It states that the

settlement announced today permanently bans Trudeau
. . . from appearing in, producing, or disseminating
infomercials that advertise any product, service, or
program and, regardless of the advertising medium
used to make the claim, from making representations
that any product, program, or service can cure, treat, or
prevent any disease or provide health benefits.

Id. The paragraph also explains that “[t]he order’s ban on future
infomercials exempts infomercials for books, newsletters, and
other informational publications.” Id. Finally, the release
concludes with the following disclaimer:

Note: This stipulated final order is for settlement
purposes only and does not constitute an admission by
the defendants of a law violation. A stipulated final
order has the force of law when signed by the judge.

Id. at 52 (bolded in original).

The press release remains on the FTC’s website to this day.1
At the top-right corner, it prominently features a link to “Related
Documents,” one of which is a copy of the 2004 Final Order.
Five months after the press release was posted, Trudeau asked

1
FTC, Kevin Trudeau Banned from Infomercials: Trudeau
Settles Claims in Connection with Coral Calcium Supreme and
Biotape (Sept. 7, 2004), available at http://www.ftc.gov/opa/2004/09/
trudeaucoral.htm.
 7

the FTC to edit and/or remove the webpage. The FTC refused,
and this suit followed.

On February 28, 2005, Trudeau filed a complaint against
the FTC in the United States District Court for the District of
Columbia, seeking only declaratory and injunctive relief. The
complaint charged that the FTC had “retaliat[ed] against
Trudeau” for his criticism of the agency by “issuing a press
release that falsely characterize[d],” Compl. ¶ 48, and
“intentionally and deliberately misrepresented,” id. ¶ 49, the
2004 Final Order. That conduct, Trudeau asserted, “exceeded
the FTC’s authority under 15 U.S.C. § 46(f) [and] violated the
First Amendment.” Compl. ¶ 50. The FTC responded with a
motion to dismiss the complaint for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and
for failure to state a claim for which relief can be granted under
Rule 12(b)(6).

The district court granted the FTC’s motion to dismiss.
First, the court concluded that it lacked subject-matter
jurisdiction because the press release was not “a ‘final agency
action’” under “section 704 of the [Administrative Procedure
Act],” 5 U.S.C. § 704. Trudeau, 384 F. Supp. 2d at 289.
Second, the court held, “in the alternative, that [Trudeau’s]
claims failed to state a viable cause of action as a matter of law.”
Id. at 288.2

2
Trudeau also filed a motion for a preliminary injunction, which
the district court denied. In light of its decision to grant the FTC’s
motion to dismiss, the court concluded, inter alia, that Trudeau had no
likelihood of success on the merits. Because we affirm the district
court’s grant of the FTC’s Rule 12(b)(6) motion, we affirm the denial
of the preliminary injunction as well. See Michigan State v. Miller,
103 F.3d 1240, 1249 (6th Cir. 1997) (holding that a court may not
issue a preliminary injunction where the plaintiff has no likelihood of
 8

Trudeau now appeals. We review the district court’s
dismissal for lack of subject-matter jurisdiction de novo. See
Mwani v. Bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). We apply
the same de novo standard to the dismissal for failure to state a
claim. See Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001).
“In determining whether a complaint fails to state a claim, we
may consider only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint
and matters of which we may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir.
1997). In this case, both the FTC’s press release and the 2004
Final Order were attached as exhibits to Trudeau’s complaint.
See Compl. ¶¶ 18, 19.

II

We begin with the district court’s dismissal of the complaint
on the ground that the court lacked jurisdiction to hear the
matter. The dismissal implicates two different jurisdictional
questions, which we address below.

A

The district court concluded that it lacked subject-matter
jurisdiction over Trudeau’s claims because the FTC’s press
release was not final agency action under § 704 of the APA, 5

success on the merits); Transohio Sav. Bank v. Dir., Office of Thrift
Supervision, 967 F.2d 598, 614 (D.C. Cir. 1992) (affirming denial of
preliminary injunction where the district court properly concluded that
the plaintiff had “no likelihood of success on the merits”).
 9

U.S.C. § 704.3 Trudeau, 384 F. Supp. 2d at 288-89, 294 & n.13.
Although the FTC pressed this jurisdictional position below, it
did not brief it on appeal and declined to make it at oral
argument. See Oral Arg. Tape 23:03-28:15. Nonetheless,
because the district court determined that § 704’s final agency
action requirement was jurisdictional and granted the FTC’s
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1), we must address the question. See LoBue v.
Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996) (“We must,
of course, examine not only our own jurisdiction but also that of
the court below, regardless of whether the parties have neglected
the issue, addressed it only obliquely, or even tried to waive
it.”).

Section 704 of the APA states, inter alia, that “[a]gency
action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are subject
to judicial review.” 5 U.S.C. § 704. The district court
interpreted this provision to mean that “the presence of final
agency action is a jurisdictional issue.” Trudeau, 384 F. Supp.
2d at 294 n.13. The APA, however, is not a jurisdiction-
conferring statute. As the Supreme Court held in Califano v.
Sanders, “the APA does not afford an implied grant of subject-
matter jurisdiction permitting federal judicial review of agency
action.” 430 U.S. 99, 107 (1977).4 Because § 704’s declaration
that final agency action is “subject to judicial review” is not a
grant of jurisdiction, even if we were to infer by negative

3
The district court and the parties refer to § 10(c) of the APA,
codified at 5 U.S.C. § 704, as “§ 704 of the APA.” We adopt that
convention as well.
4
See Air Courier Conference v. Am. Postal Workers Union, 498
U.S. 517, 523 n.3 (1991) (“The judicial review provisions of the APA
are not jurisdictional.”).
 10

implication that agency conduct not amounting to final agency
action is not “reviewable,”5 that inference would not deprive a
federal court of any jurisdiction it otherwise has.

It is true that some of our opinions have loosely referred to
the final agency action requirement as “jurisdictional.”6 That is
hardly surprising, as “‘[j]urisdiction . . . is a word of many, too
many, meanings.’” Arbaugh v. Y & H Corp., 126 S.Ct. 1235,
1242 (2006) (quoting Steel Co. v. Citizens for Better
Environment, 523 U.S. 83, 90 (1998)).7 Or, as Judge Friendly

5
But see infra Part III (noting that the negative implication is
limited to precluding a cause of action under the APA).
6
See, e.g., Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 13
(D.C. Cir. 2005); Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d
588, 594 (D.C. Cir. 2001); DRG Funding Corp. v. Sec’y of HUD, 76
F.3d 1212, 1214 (D.C. Cir. 1996); Public Citizen v. Office of the U.S.
Trade Rep., 970 F.2d 916, 918 (D.C. Cir. 1992). None of these
opinions considered or applied Sanders, 430 U.S. at 107, or Air
Courier Conference, 498 U.S. at 523 n.3. See supra note 4 and
accompanying text. Nor did any have the benefit of the “bright line”
that the Court recently drew between jurisdictional and
nonjurisdictional requirements in Arbaugh v. Y & H Corp., 126 S. Ct.
1235, 1245 (2006). See infra note 7.
7
In Arbaugh, the Court unanimously held that the number-of-
employees requirement for application of Title VII, 42 U.S.C. §
2000e(b), is not jurisdictional, but rather “relates to the substantive
adequacy of [a plaintiff’s] Title VII claim.” 126 S. Ct. at 1238-39.
Noting that the distinction between “‘subject-matter’ jurisdiction over
a controversy[] and the essential ingredients of a federal claim for
relief” are “sometimes confused or conflated,” id. at 1238, the Court
established a “readily administrable bright line” to separate the two:

If the Legislature clearly states that a threshold limitation on
a statute’s scope shall count as jurisdictional, then courts
 11

and Justice Frankfurter put it more poetically, the word is “‘a
verbal coat of too many colors.’” In re Beck Industries, Inc.,
725 F.2d 880, 881 (2d Cir. 1984) (Friendly, J.) (quoting United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 39 (1952)
(Frankfurter, J., dissenting)). In Reliable Automatic Sprinkler
Co. v. Consumer Prod. Safety Comm’n, however, we made clear
that, where “judicial review is sought under the APA rather than
a particular statute prescribing judicial review, the requirement
of final agency action is not jurisdictional.” 324 F.3d 726, 731
(D.C. Cir. 2003) (emphasis added). And in a case decided just
last month, we followed Reliable, reaffirming that the APA’s
final agency action requirement is not jurisdictional. See Center
for Auto Safety v. NHTSA, No. 04-5402, 2006 WL 1715358, at
*7 (D.C. Cir. June 23, 2006) (citing Reliable, 324 F.3d. at 731).8

and litigants will be duly instructed and will not be left to
wrestle with the issue. But when Congress does not rank a
statutory limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in character.

Id. at 1245 (internal citations omitted). Because Congress did not
clearly state that the final agency action requirement of APA § 704 is
jurisdictional, it falls on the nonjurisdictional side of the line the Court
has drawn.
8
Final agency action requirements can be jurisdictional in other
statutes that, unlike the APA, confer jurisdiction on federal courts.
See, e.g., Weinberger v. Salfi, 422 U.S. 749, 766 (1975) (holding that
the “final decision” requirement of a section of the Social Security Act
that confers subject-matter jurisdiction on district courts is a
“statutorily specified jurisdictional prerequisite”); North Am. Catholic
Educ. Programming Found. v. FCC, 437 F.3d 1206, 1209 (D.C. Cir.
2006) (stating that the “absence of finality is sufficient to preclude our
jurisdiction” under the Communications Act of 1934); Indep. Equip.
Dealers Ass’n v. EPA, 372 F.3d 420, 426 (D.C. Cir. 2004) (dismissing
a case for lack of jurisdiction because an EPA letter was not “‘final
action’ within the meaning of the judicial review provision” of the
 12

Although the APA does not confer jurisdiction, what its
judicial review provisions, 5 U.S.C. §§ 701-06, do provide is a
limited cause of action for parties adversely affected by agency
action. See Center for Auto Safety, 2006 WL 1715358, at *7.9
Accordingly, we will need to address the “final agency action”
limitation of § 704 in Part III, where we consider whether
Trudeau has a valid cause of action for his claims against the
FTC. See Reliable, 324 F.3d at 731 (“If there was no final
agency action . . . , there is no doubt that appellant would lack
a cause of action under the APA.”).

Finally, because the APA neither confers nor restricts
jurisdiction, we must still determine whether some other statute
provides it. For that, we are assisted by Trudeau’s complaint,
see Compl. ¶ 7, which draws our attention to the general federal-
question statute, 28 U.S.C. § 1331. Section 1331 gives the
district courts “original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. As we discuss in Part III, Trudeau asserts that
three different causes of action are applicable to his claims: (1)

Clean Air Act); Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir.
1999) (same under the Resource Conservation and Recovery Act).
9
See Bennett v. Spear, 520 U.S. 154, 175 (1997) (stating that §
704 provides a cause of action for all “final agency action for which
there is no other adequate remedy in a court”); Japan Whaling Ass’n
v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986) (holding that a
“right of action” is “expressly created” by § 704 of the APA “absent
some clear and convincing evidence of legislative intention to
preclude review”); Md. Dep’t of Human Res. v. Dep’t of Health &
Human Servs., 763 F.2d 1441, 1445 n.1 (D.C. Cir. 1985) (“The
Supreme Court has clearly indicated that the Administrative Procedure
Act itself, although it does not create subject-matter jurisdiction, does
supply a generic cause of action in favor of persons aggrieved by
agency action.”).
 13

the APA; (2) a “nonstatutory action, independent of the APA,”
Appellant’s Br. 29; and (3) the First Amendment directly.
Section 1331 is an appropriate source of jurisdiction for all
three.10

B

A second jurisdictional question at issue in this case is
whether the United States has waived its sovereign immunity, so
that Trudeau may bring his claims against the FTC. See FDIC
v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is
jurisdictional in nature.”). The FTC raised sovereign immunity
as a bar before the district court but, once again, did not mention
immunity in its appellate briefs and declined to discuss it at oral
argument. See Oral Arg. Tape 23:03-28:15.

The district court suggested, see Trudeau, 384 F. Supp. 2d
at 288-89, 294, and Trudeau maintains, that Congress provided
the necessary waiver of immunity in the second sentence of
APA § 702, which reads:

An action in a court of the United States seeking relief
other than money damages and stating a claim that an
agency . . . acted or failed to act . . . shall not be
dismissed nor relief therein be denied on the ground
that it is against the United States or that the United
States is an indispensable party.

10
See Hill v. Norton, 275 F.3d 98, 103 (D.C. Cir. 2001) (APA);
Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316,
1319 (D.C. Cir. 2000) (APA); Five Flags Pipe Line Co. v. DOT, 854
F.2d 1438, 1439 (D.C. Cir. 1988) (nonstatutory actions); R.I. Dep’t of
Envtl. Mgmt. v. United States, 304 F.3d 31, 42 (1st Cir. 2002)
(nonstatutory actions); Hubbard v. EPA, 949 F.2d 453, 461-62 (D.C.
Cir. 1991) (First Amendment).
 14

5 U.S.C. § 702. Trudeau has limited the relief he seeks to a
declaratory judgment and an injunction, and there is no doubt
that § 702 “waives the Government’s immunity from actions
seeking relief ‘other than money damages.’” Dep’t of Army v.
Blue Fox, Inc., 525 U.S. 255, 260-61 (1999); see Hubbard v.
EPA, 809 F.2d 1, 11 (D.C. Cir. 1987); Dronenburg v. Zech, 741
F.2d 1388, 1390-91 (D.C. Cir. 1984). Nonetheless, the FTC
argued in the district court that § 702’s waiver was limited in
two additional respects. According to the FTC: (1) the waiver
applies only to actions arising under the APA; and (2) since
review under APA § 704 is limited to “final agency action,” the
waiver of sovereign immunity is similarly restricted to conduct
that falls within that compass.

We have previously, and repeatedly, rejected the FTC’s first
argument, expressly holding that the “APA’s waiver of
sovereign immunity applies to any suit whether under the APA
or not.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1328
(D.C. Cir. 1996).11 There is nothing in the language of the
second sentence of § 702 that restricts its waiver to suits brought
under the APA. The sentence waives sovereign immunity for

11
See, e.g., Hubbard, 949 F.2d at 466 (holding, in a non-APA
case brought directly under the First Amendment, that “[s]ection 702
of the APA waives [sovereign] immunity for all suits seeking
[equitable] relief” (emphasis added)); Hubbard, 809 F.2d at 11 (same);
Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984)
(“[T]he 1976 amendments to § 702 of the Administrative Procedure
Act, 5 U.S.C. § 702, eliminated the sovereign immunity defense in
virtually all actions for non-monetary relief against a U.S. agency or
officer acting in an official capacity.” (emphasis added)); Sea-Land
Serv., Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C. Cir. 1981)
(holding that § 702 “eliminat[es] [the] sovereign immunity defense in
all actions for specific, nonmonetary relief against a United States
agency,” including a suit under the Sherman Act (emphasis in
original)).
 15

“[a]n action in a court of the United States seeking relief other
than money damages,” not for an action brought under the APA.

Our previous examination of the legislative history of this
sentence confirms that conclusion. Congress added the sentence
to § 702 when it amended the section in 1976. See Pub. L.
94-574, 90 Stat. 2721, 94th Cong., 2d Sess. (1976). As we have
explained, “[t]he Judiciary Committees of both Houses, in their
reports on the 1976 amendment, identified as the measure’s
clear purpose ‘elimina(tion of) the sovereign immunity defense
in all equitable actions for specific relief against a Federal
agency or officer acting in an official capacity.’” Sea-Land
Serv., Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C. Cir.
1981) (emphasis in original) (quoting S. REP. NO. 94-996, at 8
(1976) and H.R. REP. NO. 94-1656, at 9 (1976)).12 Moreover, the
Senate Report plainly indicated that Congress expected the
waiver to apply to nonstatutory actions, and thus not only to
actions under the APA. “The committee does not believe,” the
Report stated, that the amendment’s “partial elimination of
sovereign immunity, as a barrier to nonstatutory review of
Federal administrative action, will create undue interference
with administrative action.” S. REP. NO. 94-996, at 8 (emphasis
added).

12
See Dronenburg, 741 F.2d at 1390 (noting that the Senate
Report “expressly stated that ‘the time [has] now come to eliminate
the sovereign immunity defense in all equitable actions for specific
relief against a Federal agency or officer acting in an official
capacity’” (quoting Schnapper v. Foley, 667 F.2d 102, 108 (D.C. Cir.
1981) (quoting S. REP. NO. 94-996, at 7-8 (1976)))). In Schnapper, we
added that “[w]e may also doubt whether, even in the absence of
section 702,” courts would be unable to “award[] equitable relief on
the basis of . . . constitutional claims.” 667 F.2d at 108 n.2.
 16

Although we have never directly considered the contention
that the “final agency action” requirement of § 704 restricts §
702’s waiver of sovereign immunity, our holding that the waiver
is not limited to APA cases -- and hence that it applies
regardless of whether the elements of an APA cause of action
are satisfied -- removes the linchpin of the FTC’s argument.
Moreover, the language of the waiver sentence again provides
no support for the FTC’s contention. While the sentence does
refer to a claim against an “agency” and hence waives immunity
only when the defendant falls within that category,13 it does not
use either the term “final agency action” or the term “agency
action.”14 Nor does the legislative history refer to either
limitation. To the contrary, the House and Senate Reports’
repeated declarations that Congress intended to waive immunity
for “any,” H.R. REP. NO. 94-1656, at 3, and “all,” id. at 9; S.
REP. NO. 94-996, at 8, actions for equitable relief against an
agency make clear that no such limitations were intended.

13
See S. REP. NO. 94-996, at 10 (stating that the amendment “will
be applicable only to functions falling within the definition of
‘agency’ in 5 U.S.C. section 701”); Clark, 750 F.2d at 102 (holding
that plaintiff “may not take advantage of [§ 702’s] waiver of sovereign
immunity since [defendant] Library of Congress is not ‘an agency’ as
defined under” the APA, but further holding that plaintiff’s “claims for
non-monetary, specific relief are not barred by sovereign immunity
[because it] is well-established that sovereign immunity does not bar
suits for specific relief against government officials where the
challenged actions . . . are alleged to be unconstitutional or beyond
statutory authority”).
14
The APA defines both “agency,” 5 U.S.C. § 551(1), and
“agency action,” id. § 551(13).
 17

In sum, we hold that APA § 702’s waiver of sovereign
immunity permits not only Trudeau’s APA cause of action, but
his nonstatutory and First Amendment actions as well. We also
hold that the waiver applies regardless of whether the FTC’s
press release constitutes “final agency action.” Accord
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,
525 (9th Cir. 1989) (holding that the government’s “attempt to
restrict the waiver of sovereign immunity to actions challenging
‘agency action’ as technically defined in § 551(13) offends the
plain meaning of the amendment”); Red Lake Band of Chippewa
Indians v. Barlow, 846 F.2d 474, 476 (8th Cir. 1988) (rejecting
the contention that the waiver in § 702 “exists only to allow
review of a final agency decision,” and holding that “[t]he
waiver of sovereign immunity contained in section 702 is not
dependent on application of the . . . review standards of the
APA”). The district court therefore had subject-matter
jurisdiction to hear Trudeau’s suit under 28 U.S.C. § 1331, and
its dismissal of the complaint for lack of jurisdiction pursuant to
Rule 12(b)(1) was erroneous.

III

Having concluded that there is jurisdiction, we now turn to
whether Trudeau has stated a claim upon which relief can be
granted. “Although the district court erroneously dismissed the
action pursuant to Rule 12(b)(1), we could nonetheless affirm
the dismissal if dismissal were otherwise proper based on failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
St. Francis Xavier Parochial Sch., 117 F.3d at 624; see Reliable,
324 F.3d at 731.

Trudeau’s complaint asserts two claims against the FTC.
First, he contends that the FTC exceeded its statutory authority
under 15 U.S.C. § 46(f) when it issued the press release. Section
46(f) provides that the FTC “shall . . . have power” to “make
 18

public from time to time such portions of the information
obtained by it . . . as are in the public interest.” 15 U.S.C. §
46(f). Trudeau argues that, by “intentionally and deliberately
misrepresent[ing] the nature of the Stipulated Order in its press
release,” Compl. ¶ 49, the agency acted contrary to the “public
interest” and therefore in excess of its authority under § 46(f).
Second, Trudeau claims that issuance of the press release
violated his First Amendment rights. He contends that the
Commission intended to retaliate against him “for expressing his
negative opinions about the FTC” by “issuing a press release
that falsely characterize[d] the Stipulated Order as containing a
finding of wrongdoing or liability on [his] part.” Compl. ¶ 48.

Whether these are claims “upon which relief can be
granted” depends in part on whether there is a cause of action
that permits Trudeau to invoke the power of the court to redress
the violations of law that he claims the FTC has committed. See
generally Davis v. Passman, 442 U.S. 228, 239-40 & n.18
(1979). It also depends on whether the allegations of Trudeau’s
complaint are legally sufficient to state the violations he claims.
We consider the cause of action question in this Part, and the
sufficiency of Trudeau’s claims in Part IV.15

15
As Justice Cardozo observed, a “‘cause of action’ may mean
one thing for one purpose and something different for another.”
United States v. Memphis Cotton Oil Co., 288 U.S. 62-67-68 (1933).
Courts often use the terms “cause of action” and “claim”
interchangeably; sometimes it is said that a “cause of action is a
necessary element of [a litigant’s] ‘claim.’” Davis v. Passman, 441
U.S. at 239. Here, we refer to a “cause of action” as the legal
authority (e.g., the APA) that permits the court to provide redress for
a particular kind of “claim” (e.g., that issuance of the press release
violated § 46(f)).
 19

As we have noted, Trudeau identifies three causes of action
that he asserts authorize his suit: (1) the APA; (2) a nonstatutory
action; and (3) the First Amendment directly.16 Each involves
certain complexities of analysis.

First, it is clear that the APA “suppl[ies] a generic cause of
action in favor of persons aggrieved by agency action.” Md.
Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763
F.2d 1441, 1445 n.1 (D.C. Cir. 1985); see supra note 9.
Moreover, the APA’s “scope of review” provision permits us to
grant Trudeau’s request to hold the press release unlawful if we
find it “contrary to constitutional right” because of the asserted
First Amendment violation, or “in excess of statutory . . .
authority” because it exceeded the FTC’s powers under § 46(f).
5 U.S.C. § 706(2)(B), (C).17 The problem with relying on the
APA, however, is that Ҥ 704 limits causes of action under the
APA” to “final agency action.” Center for Auto Safety, 2006
WL 1715358, at *7. Thus, although the absence of final agency
action would not cost federal courts their jurisdiction, see supra
Part II, it would cost Trudeau his APA cause of action.

16
Trudeau does not suggest that the Federal Trade Commission
Act itself provides a cause of action permitting a private party to
challenge a press release as in excess of the authority granted by §
46(f) of the Act.
17
APA § 706, entitled “Scope of Review,” states in pertinent part:

The reviewing court shall . . . (2) hold unlawful and set
aside agency action . . . found to be . . . (B) contrary to
constitutional right, power, privilege, or immunity; [or] (C)
in excess of statutory jurisdiction, authority, or limitations
....

5 U.S.C. § 706.
 20

As the district court noted, we have never found a press
release of the kind at issue here to constitute “final agency
action” under the APA. See Trudeau, 384 F. Supp. 2d at 289.
We first considered this question nearly sixty years ago in
Hearst Radio v. FCC, 167 F.2d 225 (D.C. Cir. 1948), in which
a plaintiff alleged that the FCC had issued a defamatory
publication that it knew to be false. The difficulty with the
plaintiff’s challenge, we said, was that suits under the APA are
limited to “agency action,” and that the FCC publication did not
come within the definition of that term. Id. at 227. The APA
defines “agency action” as “includ[ing] the whole or part of an
agency rule, order, license, sanction, relief, or the equivalent or
denial thereof, or failure to act.” 5 U.S.C. § 551(13). In Hearst
Radio, we concluded that, “[a]mong these words, the only one
approaching applicability to the publication . . . is the word
‘sanction,’” and that the definition of that word “does not cover
an act such as” the FCC publication. 167 F.2d at 227; see
Invention Submission Corp. v. Rogan, 357 F.3d 452, 459 (4th
Cir. 2004) (following Hearst Radio).18

18
The APA defines “sanction” as including:

the whole or a part of an agency -- (A) prohibition,
requirement, limitation, or other condition affecting the
freedom of a person; (B) withholding of relief; (C)
imposition of penalty or fine; (D) destruction, taking,
seizure, or withholding of property; (E) assessment of
damages, reimbursement, restitution, compensation, costs,
charges, or fees; (F) requirement, revocation, or suspension
of a license; or (G) taking other compulsory or restrictive
action.

5 U.S.C. § 551(10).
 21

We have twice questioned “the continued validity of the
Hearst Radio decision.” Impro Products, Inc. v. Block, 722 F.2d
845, 849 (D.C. Cir. 1983); see Indus. Safety Equip. Ass’n, Inc.
v. EPA, 837 F.2d 1115, 1118 (D.C. Cir. 1988). In Industrial
Safety Equipment Ass’n, Inc. v. EPA, for example, we said that
“an agency intent on penalizing a party through adverse
publicity, especially false or unauthorized publicity, might well
merit a review of its action” as a sanction. 837 F.2d. at 1119.19
But we have never had the need either to reconsider Hearst
Radio, or to consider whether it is distinguishable. See Indus.
Safety Equip. Ass’n, 837 F.2d at 1119 (resolving case on the
ground that, because plaintiffs offered no evidence that the
publication was false or intended to penalize plaintiffs, it could
not qualify as a sanction); Impro Products, 722 F.2d at 849
(resolving case on statute of limitations grounds). And the FTC
insists that we are bound by Hearst Radio to conclude that its
press release is not subject to APA review because it does not
constitute agency action.20

Second, Trudeau argues that he may maintain his case as a
nonstatutory action. As we held in Chamber of Commerce v.
Reich, “[i]f a plaintiff is unable to bring his case predicated on
either a specific or general statutory review provision, he may
still be able to institute a non-statutory review action.” 74 F.3d
at 1327. Because “[j]udicial review is favored when an agency
is charged with acting beyond its authority,” Dart v. United

19
See Impro Products, 722 F.2d at 849 (“[W]e find it troubling
that literal adherence to the Hearst Radio rule in a case like this one
would preclude judicial review under the APA of an agency’s
dissemination of information that is concededly false and, therefore,
completely inconsistent with [its] statutory purpose.”).
20
The FTC further argues that, even if the press release is “agency
action,” it is not “final” agency action. Appellee’s Br. 20-21.
 22

States, 848 F.2d 217, 221 (D.C. Cir. 1988), “[e]ven where
Congress is understood generally to have precluded review, the
Supreme Court has found an implicit but narrow exception,
closely paralleling the historic origins of judicial review for
agency actions in excess of jurisdiction.” Griffith v. FLRA, 842
F.2d 487, 492 (D.C. Cir. 1988). Pursuant to this case law,
“judicial review is available when an agency acts ultra vires,”
even if a statutory cause of action is lacking. Aid Ass’n for
Lutherans v. United States Postal Serv., 321 F.3d 1166, 1173
(D.C. Cir. 2003).21

Trudeau contends that his § 46(f) claim falls within the core
of the doctrine of nonstatutory review because the issuance of a
false and misleading press release exceeds the FTC’s authority
to disseminate information “in the public interest.” 15 U.S.C. §
46(f). The FTC counters that nonstatutory review is available
only when an agency “violate[s] a ‘clear and mandatory’
statutory prohibition [or] a ‘specific and unambiguous statutory
command,’” and that § 46(f) does not fit that bill. Appellee’s
Br. 27 (quoting Griffith, 842 F.2d at 493). There certainly is no
question that nonstatutory review “is intended to be of extremely
limited scope,” Griffith, 842 F.2d at 493, and hence represents
a more difficult course for Trudeau than would review under the
APA (assuming final agency action) for acts “in excess of
statutory . . . authority,” 5 U.S.C. § 706(2)(C).

21
Ironically, in light of the allegations in this case, the font of the
nonstatutory review doctrine is American School of Magnetic Healing
v. McAnnulty, 187 U.S. 94 (1902). That case held that a court had
power to grant relief to a plaintiff who challenged the Postmaster
General’s statutory authority to prevent him “from advertising,
fraudulently in the Postmaster General’s view, that he could cure
disease by the ‘proper exercise of the faculty of the brain and mind.’”
Reich, 74 F.3d at 1327 (quoting McAnnulty, 187 U.S. at 96).
 23

Third, Trudeau asserts that he has a direct cause of action
under the First Amendment. We have inferred such a cause
before,22 and the FTC concedes that it is available to Trudeau,
see Oral Arg. Tape at 29:54-30:04. Such a cause would,
however, be limited to Trudeau’s claim of unconstitutional
retaliation, and would not also cover -- as would the APA -- his
claim that the press release exceeds the FTC’s statutory
authority.

In sum, but for APA § 704’s requirement of “final agency
action,” the cause of action provided by the APA offers Trudeau
the more inclusive (covering both his § 46(f) and constitutional
claims) and more expansive (as compared to the narrow scope
of nonstatutory review) vehicle for asserting his claims. By the
same token, if Trudeau’s claims would fail review under the
APA even assuming the press release satisfied the requirement
of § 704, they could not succeed under any other vehicle. As we
explain in the next Part, we have concluded that Trudeau’s
claims would indeed fail, even with the benefit of that
assumption. We are permitted to proceed in this manner
because “[w]hether a cause of action exists is not a question of

22
See Hubbard v. EPA, 809 F.2d at 11 n.15 (holding that the
plaintiff could sue the EPA for violating the First Amendment because
“the court’s power to enjoin unconstitutional acts by the government
. . . is inherent in the Constitution itself”); see also Hartman v. Moore,
126 S. Ct. 1695, 1701 (2006) (holding that “[o]fficial reprisal for
protected speech ‘offends the Constitution [because] it threatens to
inhibit exercise of the protected right’” (quoting Crawford-El v.
Britton, 523 U.S. 574, 588 n.10 (1998))); Beedle v. Wilson, 422 F.3d
1059, 1066 (10th Cir. 2005) (“[A] governmental lawsuit brought with
the intent to retaliate against a citizen for the exercise of his First
Amendment rights is itself a violation of the First Amendment.”); cf.
Passman, 442 U.S. at 242 (confirming that “a cause of action may be
implied directly under the equal protection component of the Due
Process Clause of the Fifth Amendment”).
 24

jurisdiction, and may be assumed without being decided.” Air
Courier Conference v. Am. Postal Workers Union, 498 U.S. 517,
523 n.3 (1991) (citing Burks v. Lasker, 441 U.S. 471, 476 n.5
(1979)); see Impro Products, 722 F.2d at 846 (assuming that an
allegedly false and misleading press release constituted “final
agency action,” but holding that relief was nonetheless barred by
the statute of limitations).

IV

Having found that there is jurisdiction to consider
Trudeau’s claims, and having assumed that there is a cause of
action available to assert them, we now discuss why the
allegations of Trudeau’s complaint are nonetheless legally
insufficient to state claims upon which relief can be granted. In
subpart A, we identify an essential element of both of Trudeau’s
claims; in subpart B, we explain why the existence of that
element may be resolved on a motion to dismiss; and in subpart
C, we conclude that Trudeau has failed to establish that element
as a matter of law.

A

An essential element common to both of Trudeau’s claims
is the contention that the FTC’s press release is false or
misleading.23 Trudeau’s complaint charges that the FTC

23
Because we conclude that Trudeau cannot establish this element
as a matter of law, see infra Part IV.C, we do not address the other
elements of his claims. See, e.g., Hartman, 126 S. Ct. at 1704 (stating
that the elements of a First Amendment retaliation claim include
“retaliatory animus,” “cause,” and “injury”); Hoover v. Radabaugh,
307 F.3d 460, 466 (6th Cir. 2002) (holding that a retaliatory adverse
action “must constitute an injury that would likely chill a person of
ordinary firmness from engaging in the protected [First Amendment]
 25

retaliated against him by issuing a press release that “falsely
characterize[d],” Compl. ¶ 48, and intentionally
“misrepresented,” id. ¶ 49, the 2004 Final Order. That conduct,
the complaint asserts, both “exceeded the FTC’s authority under
15 U.S.C. § 46(f) [and] violated the First Amendment.” Compl.
¶ 50. Similarly, Trudeau’s appellate briefs charge that “the FTC
exceeded the authority granted by [15 U.S.C. § 46(f)] by
releasing a materially false and misleading news release,”
Appellant’s Br. 39 (citing Compl. ¶¶ 19-25),24 and violated the
First Amendment “by disseminating false information about the
Stipulated Order” in retaliation for Trudeau’s protected activity,
id. at 37 (citing Compl. ¶ 49).25

The district court suggested that, to succeed on his claims,
Trudeau would have to establish that the press release was
“obviously false.” Trudeau v. FTC, 384 F. Supp. 2d at 296. As
that stricter standard is unnecessary to resolve the case, we do
not address it. That said, we do believe that Trudeau must show
that his allegations are sufficient to establish that the press
release was at least false or misleading. Our insistence on that
standard is justified because those are the claims that Trudeau

activity,” and that it must be “motivated at least in part as a response
to the exercise of the plaintiff’s constitutional rights”).
24
See also Appellant’s Br. 39 (“Trudeau’s allegations that the
news release was misleading . . . suffice to state a claim that the
agency has exceeded its authority under §46(f).”).
25
See also Appellant’s Br. 37 (“Trudeau alleges that he publicly
criticized the FTC -- clearly a protected exercise of First Amendment
rights -- and that the FTC, in retaliation, attempted to injure him by
releasing false information. Nothing more is necessary.”).
 26

made in the district court and in his appellate briefs,26 and
because he cites no case that would support a lesser standard.27

That standard is also justified by the interests that are at
stake here. As we said in FTC v. Cinderella Career & Finishing
Schools, Inc., in the course of holding that § 46(f) authorizes the
FTC to issue factual press releases concerning pending
adjudicatory proceedings:

If the unsophisticated consumer is to be protected in
any measure from deceptive or unfair practices, it is
essential that he be informed in some manner as to the
identity of those most likely to prey upon him utilizing
such prohibited conduct. Certainly advice through
news media as to actions being taken by a government
agency in his behalf constitutes a prophylactic step

26
At oral argument, Trudeau suggested a standard at once more
lenient and more vague, contending that even a true statement would
be sufficient if it caused the plaintiff to suffer a “palpable injury.”
Oral Arg. Tape at 6:29. For the reasons stated in the following
paragraph, we are doubtful that such a standard has any application to
the circumstances of this case. In any event, oral argument is too late
to raise a matter for appellate consideration. See Robertson v. Am.
Airlines, Inc., 401 F.3d 499, 504 n.2 (D.C. Cir. 2005); Ark Las Vegas
Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003); C.J.
Krehbiel Co. v. NLRB, 844 F.2d 880, 883 n.1 (D.C. Cir. 1988).
27
Trudeau concedes that no court has ever decided in a plaintiff’s
favor the kind of claims he advances here. See Oral Arg. Tape at
17:42-18:33, 19:11-19:15. The closest case appears to be B.C. Morton
International Corp. v. FDIC, in which the court recognized a non-
monetary cause of action in tort for “the issuance by [an] agency of a
press release deliberately misrepresenting the application of federal
law for the specific purpose of destroying plaintiff’s business.” 305
F.2d 692, 693 (1st Cir. 1962) (emphasis added).
 27

addressed ultimately to the elimination of the conduct
prohibited by the statute. The Commission, in
attempting to bring its action relative to what it has
reason to believe is unlawful conduct to the attention of
the widely spread public by the issuance of factual
press releases, is, we conclude, acting within its
authority as defined by the statute.

404 F.2d 1308, 1314 (D.C. Cir. 1968).28 Although there are
important interests on the other side of the balance as well, they
do not arise in a case involving the dissemination of information
that concerns a public-record document regarding a commercial
matter (e.g., the 2004 Final Order),29 and that is neither false nor
misleading.30

28
See Indus. Safety Equip., 837 F.2d at 1118 (declaring that
agency publications serve an essential role in “promoting Congress’
clear mandate that government information, particularly from
consumer-oriented agencies, reach the public,” and that an agency’s
ability to warn the public “would be crippled were [it] not permitted
to use the quick and cheap instrument of publicity”).
29
Compare Bloch v. Ribar, 156 F.3d 673, 676 (6th Cir. 1998)
(holding that the plaintiff’s allegation that the defendant sheriff
released “confidential and highly personal details” about the plaintiff
in retaliation for her criticism of him was sufficient to state a cause of
action under the First Amendment).
30
See Indus. Safety Equip., 837 F.2d at 1118 (noting “two separate
goals of fair administrative process: protecting parties from false or
unauthorized agency news releases and promoting Congress’ clear
mandate that government information, particularly from consumer-
oriented agencies, reach the public”); Cinderella, 404 F.2d at 1313-14
(holding that, although a press release may result “in a substantial
tarnishing of the name, reputation, and status of the named respondent
. . . , [i]f the unsophisticated consumer is to be protected in any
measure from deceptive or unfair practices, it is essential that he be
 28

B

Trudeau insists that whether the FTC’s press release is false
or misleading is a question of fact that cannot be determined on
a motion to dismiss under Rule 12(b)(6).

It is true that “the Federal Rules of Civil Procedure do not
require a claimant to set out in detail the facts upon which he
bases his claim,” and that “a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 46-
47 (1957); see Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002). It is thus possible that, had Trudeau’s complaint simply
alleged that the FTC issued a false press release about him that
was retaliatory and beyond the FTC’s authority, his complaint
might have survived a motion to dismiss. See Sparrow v. United
Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000). (Of
course, the text at issue would eventually have been flushed out
by a motion for summary judgment under Federal Rule of Civil
Procedure 56.) But it also “is possible for a plaintiff to plead too
much: that is, to plead himself out of court by alleging facts that
render success on the merits impossible.” Id.31 Here, Trudeau’s
complaint makes quite clear which text he regards as false
(specified sentences in the press release), and why he regards it
as false (because of specified inconsistencies with the 2004
Final Order). And because he has attached all of the relevant

informed in some manner as to the identity of those most likely to prey
upon him utilizing such prohibited conduct”).
31
See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)
(stating that “Rule 12(b)(6) dismissal is appropriate where the
allegations contradict the claim asserted”); see also Bennett v.
Schmidt, 153 F.3d 516, 519 (7th Cir. 1998).
 29

text to the complaint, see Compl. Ex. A (2004 Final Order); id.
Ex. B (press release), it is appropriate for a court to examine that
material in ruling under Rule 12(b)(6). See St. Francis Xavier
Parochial Sch., 117 F.3d at 624-25; see also Kaempe v. Myers,
367 F.3d 958, 965 (D.C. Cir. 2004); Hoffman-Pugh v. Ramsey,
312 F.3d 1222, 1225 (11th Cir. 2002); Durning v. First Boston
Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

Moreover, although “[i]n considering the claims dismissed
pursuant to Rule 12(b)(6), we must treat the complaint’s factual
allegations as true [and] must grant plaintiff the benefit of all
reasonable inferences from the facts alleged,” Sparrow, 216
F.3d at 1114, “we are not bound to accept as true a legal
conclusion couched as a factual allegation,” Papasan v. Allain,
478 U.S. 265, 286 (1986), or to “accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts set out
in the complaint,” Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994); see Papasan, 478 U.S. at 286.
Trudeau contends that whether a statement is false is always a
factual matter and never a legal conclusion. We do not agree
that the truth or falsity of a statement can never be decided as a
matter of law.

Moldea v. New York Times Co., for example, involved an
analogous situation: a district court’s grant of summary
judgment to a defamation defendant on the pleadings and
without discovery. 15 F.3d 1137 (D.C. Cir.), modified on reh’g,
22 F.3d 310 (D.C. Cir. 1994). Based solely on a comparison of
the plaintiff’s book and the book review that allegedly
mischaracterized it, the district court concluded that defamatory
statements in the review were not actionable as a matter of law
because “no reasonable juror could find them to be false.” 15
F.3d at 1139. On appeal, we agreed with the district court as to
 30

two of the statements in the review. Id. at 1148-49; see Moldea,
22 F.3d at 312-13.32

We have also applied this “no reasonable juror” (or “no
reasonable person”) test to a motion to dismiss. See Browning
v. Clinton, 292 F.3d 235, 247-48 (D.C. Cir. 2002) (affirming the
dismissal of a defamation claim under Rule 12(b)(6) because
“no reasonable person would be able to infer that [the defendant]
was accusing [the plaintiff] of deceitfulness”).33 So have other

32
Our initial opinion in Moldea reversed the district court’s grant
of summary judgment on the ground that two other statements could
not be deemed true “as a matter of law” because “a reasonable juror
could conclude that [they were] false.” 15 F.3d at 1146-47. On
reconsideration, we held that while “[s]uch a standard might be
appropriate in the case of an ordinary libel,” it was “an inappropriate
measure of an interpretation of a book.” 22 F.3d at 317. For book
reviews, we concluded that a “supportable interpretation” standard
was appropriate, held that a “reasonable person could find that the
review’s characterizations were supportable interpretations of the
book,” and therefore affirmed the grant of summary judgment in favor
of the defendant. Id. (emphasis omitted). The “supportable
interpretation” standard is, of course, substantially more favorable to
the FTC than the “no reasonable juror” standard we apply in this case.
33
In Trudeau’s case, the district court could also have converted
the plaintiff’s motion to dismiss into a motion for summary judgment
pursuant to Rule 12(b). FOP Dep't of Corr. Labor Comm. v. Williams,
375 F.3d 1141, 1144 (D.C. Cir. 2004). Similarly, this court could
characterize “the district court’s dismissal as a grant of summary
judgment under Rule 56(c).” Id.
 31

circuits.34 We will do so here as well.35

C

Trudeau alleges that the FTC’s press release falsely and
misleadingly characterizes the 2004 Final Order in four respects:
it “[1] falsely stat[es] that Trudeau had been banned entirely
from infomercials, [2] erroneously impl[ies] that the settlement
was a judicial finding that Trudeau was a habitual false
advertiser, [3] falsely impl[ies] that the $2 million was a fine,
and [4] conspicuously omit[s] the fact that there has been no
finding of false advertising.” Appellant’s Br. 1-2. We consider
each of these allegedly “false and misleading assertions and
implications,” id. at 6, below.

34
See Hoffman-Pugh, 312 F.3d at 1227 (affirming the dismissal
of a defamation complaint under Rule 12(b)(6) because, “construing
the [allegedly defamatory] book as a whole,” the book could not
reasonably be read as accusing the plaintiff of murder); cf. Karedes v.
Ackerley Group, Inc., 423 F.3d 107, 118 (2d Cir. 2005) (reversing a
district court’s dismissal of a defamation claim because, “on this
record,” a “reasonable jury could conclude that the [news article] was
false”); Durning, 815 F.2d at 1269 (reversing the Rule 12(b)(6)
dismissal of a claim that a securities offering was misleading because,
upon examining the offering, the court could not conclude that “no
reasonable investor” could read the offering as the defendant
suggested).
35
In his reply brief, Trudeau contends that he is entitled to
introduce empirical evidence of how an average consumer would
likely perceive the release. See Reply Br. 24. The cases he cites for
this proposition, however, rely on the elements of statutory causes of
action that Trudeau does not (and cannot) assert here. See Clorox Co.
v. Proctor & Gamble Commer. Co., 228 F.3d 24, 36-37 (1st Cir. 2000)
(Lanham Act); Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057,
1060-61 (7th Cir. 1999) (Fair Debt Collection Practices Act).
 32

1. “First and foremost,” Trudeau objects to the press
release’s repeated use of the word “ban” to describe the 2004
Final Order. Appellant’s Br. 6. For example, the headline of the
release states: “Kevin Trudeau Banned from Infomercials.”
App. 51. Similarly, Acting Director Parnes is quoted as stating:
“This ban is meant to shut down the infomercial empire that has
misled American consumers for years.” Id. at ¶ 3. Trudeau
contends that the use of the term “ban” or “banned” is
“inaccurate and misleading” in two respects. Appellant’s Br. 7.

Trudeau argues that the word “ban” is misleading because
the order did not “completely bar Trudeau from infomercials; .
. . the agreement expressly permits Trudeau to produce and
appear in infomercials for books and other publications.” Id.
But the release does not say that Trudeau is completely barred
from infomercials. To the contrary, the very first sentence of the
release notes the precise caveat to which Trudeau avers: “A
Federal Trade Commission settlement with Kevin Trudeau . . .
broadly bans him from . . . disseminating future infomercials
that advertise any type of product . . . , except for truthful
infomericals for informational publications.” App. 51 at ¶ 1
(emphasis added). And the sixth paragraph states that “[t]he
order’s ban on future infomercials exempts infomercials for
books, newsletters, and other informational publications.” Id. at
¶ 6.

Trudeau also insists that “the term ‘banned’ is inapposite”
because he “agreed, as part of the Stipulated Order, not to
produce certain types of infomercials; the sort of coercion
implied by the term ‘banned’ never figured into the settlement.”
Appellant’s Br. 7 (emphasis in original). Trudeau did agree, and
the first paragraph of the release makes that quite clear to the
reader, stating that “Trudeau agreed to these prohibitions . . . to
settle” the FTC’s charges. App. 51 at ¶ 1. But Trudeau’s
agreement to the order’s terms does not render the word “ban”
 33

inapposite. The dictionary defines “ban” as “to prohibit
esp[ecially] by legal means the . . . dissemination . . . of,”
WEBSTER’S NEW INTERNATIONAL DICTIONARY 169 (Philip
Babcock Gove ed., 1993) (emphasis added), and that is exactly
what the 2004 Final Order did, see 2004 Final Order at 7 (listing
“prohibited business activities” (emphasis added)); id. at 30
(declaring that “[t]his Part II prohibits the making of any
representations for” specified products (emphasis added)).36
Moreover, because the 2004 Final Order was entered by the
district court, it surely is coercive: Trudeau may disregard the
Order only upon pain of punishment for contempt, a penalty he
has previously received. See 2004 Final Order ¶ 8 (noting that
the district court had previously found Trudeau in contempt for
violating the July 2003 stipulated preliminary injunction); see
also id. ¶ 7 (declaring that “the provisions of this Order are
binding upon Defendants”); id. at 29 (providing that the district
court “shall retain jurisdiction over this matter for purposes of
. . . enforcement of this Order”).

2. Trudeau’s second contention is that the press release
erroneously implies that the settlement represents a judicial
finding that Trudeau was a habitual false advertiser. In
particular, he focuses on the release’s third paragraph:

“This ban is meant to shut down an infomercial empire
that has misled American consumers for years,” said
Lydia Parnes, Acting Director of the FTC’s Bureau of
Consumer Protection. “Other habitual false advertisers
should take a lesson; mend your ways or face serious
consequences.”

36
Compare 2004 Final Order at 8 (declaring that Trudeau is
permanently “enjoined” from disseminating specified representations
in infomercials), with WEBSTER’S NEW INTERNATIONAL DICTIONARY
754 (defining “enjoin” as “to prohibit . . . by judicial order”).
 34

App. 51 at ¶ 3. Trudeau does not contend that the FTC or its
officials acted improperly by asserting their own views. His
contention is that “a reader could reach no conclusion other than
that the court had found Trudeau to have engaged in false
advertising, and had imposed a ‘ban’ as punishment.”
Appellant’s Br. 9 (emphasis added).

That contention is wrong. By its use of quotation marks,
the paragraph makes clear that the statement is that of Acting
Director Parnes -- not that of the district court. Moreover, by the
time a reader gets to that quotation, he or she has already read
the italicized subtitle of the release, which states: “Trudeau
Settles Claims with Coral Calcium Supreme and Biotape”
(underlining added), as well as the release’s first paragraph,
which states that Trudeau “agreed” to the provisions of the
Order to “settle” the FTC’s charges. App. 51 at ¶ 1. And before
concluding the release, the reader will also see the bolded note
stating: “Note: This stipulated final order is for settlement
purposes only and does not constitute an admission by the
defendants of a law violation.” Id. at 52 (italics added). Given
this context, no reasonable reader could conclude that the Acting
Director’s Parnes’ assertions reflected a “judicial finding.”
Appellant’s Br. 6.

3. Trudeau next contends that the press release inaccurately
characterizes the $2 million that he must pay under the order.
Here, he focuses on paragraph two of the release, which states:

Trudeau is paying $500,000 in cash and transferring
residential property . . . and a luxury automobile to the
Commission to satisfy the $2 million monetary
judgment against him[.]

Appellant’s Br. 9 (quoting App. 51 at ¶ 2) (emphasis added by
Appellant). According to Trudeau: “[T]he fund was part of a
 35

voluntary settlement agreement and not a ‘judgment’ at all.
Nevertheless, the news release overtly characterizes it as a fine,
and thus misleads readers into the belief that it was imposed by
the court as a punishment for false advertising.” Appellant’s Br.
9-10.

Trudeau’s contention suffers from three fatal defects.
Contrary to his premise, the $2 million fund is in fact part of a
“judgment” against him, as the 2004 Final Order expressly
states. See 2004 Final Order at 16 (entering “Judgment for
equitable monetary relief in the amount of two million dollars”).
Contrary to his assertion, the news release nowhere, overtly or
otherwise, characterizes the $2 million as a “fine.” And contrary
to his implication, the press release makes clear, repeatedly, that
the fund was part of a voluntary settlement agreement. See, e.g.,
App. 51 at subtitle (“Trudeau Settles Claims”); id. at ¶ 1
(announcing an FTC “settlement with Kevin Trudeau”); id.
(stating that “Trudeau agreed . . . to pay the FTC $2 million to
settle charges”).

4. Finally, Trudeau asserts that the press release is
misleading because it fails to expressly state, as the 2004 Final
Order did, that there had been “no findings or admissions of
wrongdoing or liability” with respect to Trudeau. 2004 Final
Order ¶ 8. As we said above, we do not believe that a
reasonable reader could construe the press release as suggesting
that there had been such a finding; accordingly, an express
disavowal was unnecessary to prevent such a reader from being
misled. In any event, the online version of the release -- which
is the version upon which Trudeau focuses his attention37 --

37
See, e.g., Appellant’s Br. 7, 44 (complaining of assertedly false
information on the FTC’s “informational web page”).
 36

contains a link to the 2004 Final Order, prominently displayed
in bold at the top-right corner of the webpage. The link permits
any interested reader to compare the release with the order itself,
including its disavowal of a judicial finding. See 2004 Final
Order ¶ 8. With the terms of the order just two mouseclicks
away, any potential misreading of the release can easily be
averted.

D

The district court found that “the differences between the
press release and the stipulated order are minor or illusory.”
Trudeau v. FTC, 384 F. Supp. 2d at 296. We agree. Contrary
to Trudeau’s contention, this is not a case in which only “a
highly skilled jurist or an FTC staff member, carefully parsing
the language of the publication,” would not be misled. Reply
Br. 22. Rather, this is a case in which no reasonable person
could misinterpret the press release in the ways that Trudeau
suggests. Accordingly, Trudeau’s complaint is legally
insufficient to state a claim.

V

For the foregoing reasons, we affirm the judgment of the
district court dismissing Trudeau’s complaint for failure to state
a claim upon which relief can be granted.

Affirmed.