377 F. Supp. 3d 34
D.D.C.2019Background
- EPA Administrator issued a 2017 directive barring current EPA grant recipients (as PI or co-PI) from serving on EPA federal advisory committees (FACs) to "strengthen member independence."
- FACs (e.g., SAB, BSC, CASAC) advise EPA on scientific and policy matters; membership traditionally includes university and non-profit scientists, some of whom receive EPA grants.
- Dr. Elizabeth Sheppard, a CASAC member, relinquished her role as co-investigator on a $3 million EPA grant to continue serving on CASAC and alleges the directive caused concrete, ongoing injury.
- Plaintiffs (Sheppard and Union of Concerned Scientists) sued under the Administrative Procedure Act (APA), alleging the directive is arbitrary and capricious and exceeds statutory authority, and that it violates Federal Advisory Committee Act (FACA) provisions requiring committees to be "fairly balanced" and free from "inappropriate influence."
- Defendants moved to dismiss for lack of subject-matter jurisdiction (standing, finality, ripeness, nonjusticiability) and for failure to state a claim. The court denied dismissal for lack of standing and ripeness as to Sheppard but granted dismissal on justiciability and failure-to-state grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Sheppard lost grant role and faces imminent inability to seek future grants; UCS represents members harmed | Directive is policy guidance without concrete injury | Sheppard has Article III standing; court assumes UCS has associational standing for present motion |
| Final agency action / Ripeness | Directive uses mandatory language and has been applied to Sheppard; controversy is concrete and fit for review | Directive is non-final policy statement and claims are unripe | Directive is final as applied and claims are ripe (Sheppard already suffered harm) |
| APA arbitrary-and-capricious (Count 1) / conflict with ethics statutes & OGE regs | Directive imposes blanket ban conflicting with §208 and OGE rules that require individualized review | Ethics regs and §208 do not provide a private right to challenge appointment discretion; regs preclude judicial enforcement; agency has broad appointment discretion | Claims nonjusticiable and fail to state a claim; OGE procedural rules preclude private enforcement and §208/OGE provide no meaningful standard to invalidate discretionary appointment policy |
| FACA challenges (Counts 2–4: exceed authority; unfairly balanced; inappropriate influence) | Directive conflicts with GSA/FACA requirements and undermines FACA duties to ensure "fairly balanced" and not "inappropriately influenced" committees | FACA and implementing regs set a minimum ethical floor; they do not dictate whom the Administrator must appoint; statutory terms lack a judicially manageable standard | Counts dismissed as nonjusticiable and for failure to state a claim: FACA's "fairly balanced" and "inappropriate influence" standards offer no meaningful, administrable judicial standard; directive does not exceed agency authority |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (Sup. Ct.) (standing and causation requirements for APA review)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct.) (injury-in-fact and prudential standing principles)
- Webster v. Doe, 486 U.S. 592 (Sup. Ct.) (§701(a)(2) nonreviewability where no law to apply)
- Heckler v. Chaney, 470 U.S. 821 (Sup. Ct.) (agency decisions committed to discretion are presumptively nonreviewable)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (Sup. Ct.) (arbitrary-and-capricious review framework)
- Physicians for Social Responsibility v. Wheeler, 359 F. Supp. 3d 27 (D.D.C. 2019) (D.D.C. decision rejecting similar challenge; adopted by this court)
- Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 886 F.2d 419 (D.C. Cir.) (discussing FACA's "fairly balanced" language)