359 F. Supp. 3d 27
D.C. Cir.2019Background
- EPA issued a Directive restricting membership on its federal advisory committees, including a rule that no committee member be "currently in receipt of EPA grants," while exempting state/tribal/local grantees. EPA previously allowed grantees to serve.
- Plaintiffs (Physicians for Social Responsibility, several medical organizations, and individual scientists) challenge the Directive as arbitrary and capricious, contrary to 18 U.S.C. § 208 and OGE regulations, inconsistent with FACA, and contrary to statutes establishing EPA advisory committees; they allege removals and imminent harms to specific members.
- EPA moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing lack of standing/ ripeness for some plaintiffs, that the Directive is an appointment policy within agency discretion, that the cited statutes/regulations provide no judicially manageable standards, and that certain OGE procedural claims are unreviewable.
- The court found at the pleading stage that two plaintiffs (Dr. Wilson and ISCHE via Dr. McConnell) had standing and the claims were ripe because removals and imminent choices between grants and service were alleged.
- On the merits the court held: the Directive does not conflict with § 208 or OGE rules (those set a floor, not a ceiling); OGE concurrence rules are not judicially enforceable; FACA §5(b)(2) and §5(b)(3) supply no meaningful standards for review; and statutes creating advisory committees do not provide a reviewable requirement to select the "most qualified" scientists.
- The court concluded EPA adequately explained the policy change and dismissed all counts; agency appointment discretion and nonjusticiability doctrines were central to the result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing/ Ripeness | Plaintiffs facing removals or imminent removal have concrete injury and ripe claims | EPA contends some plaintiffs lack standing and claims are unripe | Court: Dr. Wilson and ISCHE have standing; claims ripe given present/imminent harms |
| Conflict-of-interest statute & OGE regs (18 U.S.C. § 208) | Directive unlawfully rejects persons whom § 208/OGE permit to serve; OGE regs require uniformity | EPA: § 208/OGE set minimum conduct rules; appointment policy is discretionary and may be stricter | Court: § 208/OGE create a floor, not a mandatory ceiling on appointment policy; no conflict; dismissal of that claim |
| OGE concurrence procedure (5 C.F.R. § 2635.105) | EPA had to obtain OGE concurrence before issuing Directive | EPA: Directive is an appointment policy, not a supplement to ethics regs; also reg. precludes private enforcement | Court: OGE regulation bars private enforcement and Directive is not a supplemental ethics regulation; claim unreviewable/ fails |
| FACA §5(b)(2) & §5(b)(3) and statutory qualifications | Directive frustrates FACA's "fairly balanced" and "no inappropriate influence" requirements and statutory mandates to recruit top scientists | EPA: FACA/GSA afford broad appointment discretion; statutes lack meaningful standards; policy choices committed to agency | Court: §§5(b)(2)/(3) and general statutory directives provide no judicially manageable standard; nonjusticiable; related statutory-qualification claims likewise fail |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing constitutional minimum requires concrete, particularized injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements and burden at pleading stage)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency decisions committed to discretion by law are presumptively unreviewable)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review standards for agency rule changes)
- FCC v. Fox Television Stations, 556 U.S. 502 (2009) (agency must acknowledge and reasonably explain policy change)
- Air Transp. Ass'n of Am. v. FAA, 169 F.3d 1 (D.C. Cir. 1999) (regulatory language can preclude private enforcement/judicial review)
- Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 886 F.2d 419 (D.C. Cir. 1989) (discussion of justiciability of FACA's "fairly balanced" requirement)
- Lincoln v. Vigil, 508 U.S. 182 (1993) (agency action involving complex policy balancing is committed to agency discretion)