Cpath v. Office of US Trade ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR POLICY ANALYSIS ON 
TRADE AND HEALTH (CPATH);
CALIFORNIA PUBLIC HEALTH
ASSOCIATION - NORTH; CHINESE
PROGRESSIVE ASSOCIATION;
PHYSICIANS FOR SOCIAL
RESPONSIBILITY, No. 06-16682
Plaintiffs-Appellants,
and  D.C. No.
CV-05-05177-MJJ
AMERICAN NURSES ASSOCIATION, OPINION
Plaintiff,
v.
OFFICE OF THE UNITED STATES
TRADE REPRESENTATIVE; UNITED
STATES DEPARTMENT OF COMMERCE,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
May 16, 2008—San Francisco, California
Filed August 22, 2008
Before: Procter Hug, Jr. and N. Randy Smith, Circuit Judges,
and Richard Mills,* District Judge.
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
11455
11456 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
Opinion by Judge N. Randy Smith
CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11459
COUNSEL
Martin Wagner (argued) and Sarah Burt, Earthjustice, Oak-
land, California, counsel for the plaintiffs-appellants.
Mark B. Stern (argued) and Alisa B. Klein, United States
Department of Justice, Civil Division, Washington, D.C.,
counsel for the defendants-appellees.
OPINION
N. RANDY SMITH, Circuit Judge:
The “fairly balanced” membership requirement, imposed
by the Federal Advisory Committee Act (“FACA”) and
applied to the Trade Act of 1974 (“Trade Act”), is not review-
able because those statutes provide us with no meaningful
standards to apply. The district court therefore properly dis-
missed the complaint by the Center for Policy Analysis on
Trade and Health, California Public Health Association -
North, Chinese Progressive Association, and Physicians for
Social Responsibility (collectively, “CPATH”). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
11460 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
I.
A.
The Trade Act, 19 U.S.C. § 2155, et seq., directs the United
States Trade Representative and the United States Department
of Commerce (collectively, “USTR”) to obtain policy advice
and information regarding trade issues from a series of advi-
sory committees known as Industry Trade Advisory Commit-
tees or “ITACs.” See 19 U.S.C. § 2155(c). ITACs provide
United States trade negotiators with policy advice on (1) “ne-
gotiating objectives and bargaining positions before entering
into a trade agreement,” (2) “the operation of any trade agree-
ment once entered into,” and (3) “other matters arising in con-
nection with the development, implementation, and
administration of the trade policy of the United States.” See
19 U.S.C. § 2155(a)(1)(A)-(C), (d).1
The Trade Act requires that the ITACs “shall, insofar as is
practicable, be representative of all industry, labor, agricul-
tural, or service interests (including small business interests)
in the sector or functional areas concerned.” 19 U.S.C.
§ 2155(c)(2). As expressed in the legislative history, Con-
gress’s stated purpose for this portion of the Trade Act is:
to establish the institutional framework to assure that
representative elements from the private sector have
the opportunity to make known their views to U.S.
negotiators, and to provide the latter a formal mecha-
nism through which to seek information and advice
from the private sector, with respect to U.S. negotiat-
ing objectives and bargaining positions before and
during the multilateral trade negotiations.
1
The ITACs at-issue in this litigation are ITAC-4 (Consumer Goods),
ITAC-5 (Distribution Services), ITAC-8 (Information and Communica-
tions Technologies, Services, and Electronic Commerce), ITAC-10 (Ser-
vices and Finance Industries), ITAC-14 (Customs Matters and Trade
Facilitation), and ITAC-16 (Standards and Technical Trade Barriers).
CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11461
S. Rep. No. 93-1298 (1974), reprinted in 1974 U.S.C.C.A.N.
7186, 7248. According to relevant legislative history, the
ITACs were to be “representative of the producing sectors of
our economy.” Id. at 7249.
The Trade Act also provides for the formation of two other
categories of advisory committees. One such committee must
be composed of “not more than 45 individuals and shall
include representatives of non-Federal governments, labor,
industry, agriculture, small business, service industries, retail-
ers, non-governmental environmental and conservation orga-
nizations, and consumer interests.” 19 U.S.C. § 2155(b)(1).
According to the Trade Act, this committee must be “broadly
representative of the key sectors and groups of the economy,
particularly with respect to those sectors and groups which are
affected by trade.” Id. The Trade Act also provides for the
creation of “individual general policy advisory committees for
industry, labor, agriculture, services, investment, defense, and
other interests, as appropriate, to provide general policy
advice[.]” Id. § 2155(c)(1). Committees in this category must,
“insofar as is practicable, be representative of all industry,
labor, agricultural, service, investment, defense, and other
interests, respectively, including small business interests[.]”
Id. Neither the § 2155(b)(1) committee nor the (c)(1) commit-
tees are at issue in this litigation; CPATH is instead concerned
about the ITACs formed pursuant to 19 U.S.C. § 2155(c)(2).
B.
FACA requires (among other things) that “the membership
of the [ITACs] . . . be fairly balanced in terms of the points
of view represented and the functions to be performed[.]” 5
U.S.C. App. 2 § 5(b)(2) (emphasis added). FACA does not
define what constitutes a “fairly balanced” committee — in
terms of points of view represented or functionality — or how
that balance is to be determined. FACA makes clear that “[t]o
the extent they are applicable, the guidelines set out in subsec-
tion (b) of this section shall be followed by the President,
11462 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
agency heads, or other Federal officials in creating an advi-
sory committee.” 5 U.S.C. App. 2 § 5(c) (emphasis added).
C.
CPATH contends that the ITACs do not currently have any
members representing the public health community and that,
as a result, the points of view represented on the ITACs are
not fairly balanced. Because of the perceived lack of balance,
CPATH requested that the USTR appoint a representative
from the public health community to each of the ITACs. The
USTR never responded to CPATH’s requests and has not
allowed CPATH access to the ITACs or to any of the confi-
dential trade information known by the ITACs’ members.
CPATH subsequently brought this action against the USTR to
remedy the alleged violations of FACA arising out of what it
viewed as imbalance in the points of view represented by the
ITACs’ membership.
USTR moved to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). USTR argued that dismissal
was required because CPATH lacked standing and, addition-
ally, that CPATH’s complaint was non-justiciable under the
Administrative Procedure Act (“APA”). The district court
found that CPATH had standing but nevertheless dismissed
the action, holding that FACA’s “fairly balanced” require-
ment was non-justiciable under the APA.2
II.
We review de novo the district court’s dismissal for lack of
jurisdiction and may affirm on any basis supported by the
record. Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir.
2007).
2
We do not disagree with the district court’s conclusion that CPATH
has standing. We need not discuss that issue any further here in light of
our holding that the balance of the ITACs is not reviewable under the
APA.
CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11463
III.
A.
[1] “Congress intends the executive to obey its statutory
commands and, accordingly, . . . it expects the courts to grant
relief when an executive agency violates such a command.”
Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667,
681 (1986). The APA generally provides a remedy for any
such violation. See 5 U.S.C. § 701, et seq. (outlining require-
ments). “[T]he Court has noted that the APA . . . embodies a
‘basic presumption of judicial review.’ ” Newman v. Apfel,
223 F.3d 937, 943 (9th Cir. 2000) (quoting Lincoln v. Vigil,
508 U.S. 182, 190 (1993)).
[2] Exceptions to reviewability under the APA exist only
“to the extent that (1) statutes preclude judicial review; or (2)
agency action is committed to agency discretion by law.” 5
U.S.C. § 701(a). “The legislative history of the Administrative
Procedure Act indicates that [the doctrine of non-
reviewability] is applicable in those rare instances where stat-
utes are drawn in such broad terms that in a given case there
is no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830
(1985) (citations and internal quotation marks omitted).
“[E]ven where Congress has not affirmatively precluded
review, review is not to be had if the statute is drawn so that
a court would have no meaningful standard against which to
judge the agency’s exercise of discretion.” Id.B.
[3] As noted, the first prong of the APA’s reviewability
analysis inquires whether the statute expressly precludes judi-
cial review. 5 U.S.C. § 701(a)(1). This prong is inapplicable
because neither the Trade Act nor FACA expressly precludes
judicial review. See 5 U.S.C. § 701(a)(1). Additionally, with
certain exceptions that do not apply here, the Trade Act
11464 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
expressly states that FACA applies to the ITACs. See 19
U.S.C. § 2155(f).
C.
[4] The second prong of the APA’s reviewability analysis
precludes review if “agency action is committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). We have interpreted
5 U.S.C. § 701(a)(2) as applicable in two circumstances. New-
man, 223 F.3d at 943. “The first of these circumstances is that
in which a court would have no meaningful standard against
which to judge the agency’s exercise of discretion and there
thus is no law to apply.” Id. (internal quotation marks and
citations omitted). “The second such circumstance is that in
which the agency’s action requires a complicated balancing of
a number of factors which are peculiarly within [the agency’s]
expertise, including the prioritization of agency resources,
likelihood of success in fulfilling the agency’s statutory man-
date, and compatibility with the agency’s overall policies.” Id.(internal quotation marks and citations omitted) (brackets in
original). In such cases, the decisionmaking process is abso-
lutely “committed” to the agency’s judgment. Heckler, 470
U.S. at 830. We have also emphasized that § 701(a)(2)
“stakes out a very narrow exception.” Newman, 223 F.3d at
943 (internal quotation marks and citation omitted). We must
then determine whether FACA’s “fairly balanced” require-
ment, as applied to the Trade Act, precludes judicial review
because the agency action fits either of the two circumstances
described above and is therefore committed to agency discre-
tion by law.
D.
Review of the Trade Act and FACA make clear that those
statutes provide us with no meaningful standards to apply
when considering whether USTR complied with the “fairly
balanced” requirement imposed by FACA. This is, as Judge
Silberman noted in Public Citizen v. National Advisory Com-
CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11465
mittee on Microbiological Criteria for Foods, 886 F.2d 419(D.C. Cir. 1989), a political question that is best left to the
other branches of government. See id. at 426-430 (Silberman,
J., concurring in the judgment) (stating that “[t]he relevant
points of view on issues to be considered by an advisory com-
mittee are virtually infinite and, therefore, the judgment as to
what constitutes an appropriate or ‘fair’ balance of those
views must be a political one”).
[5] The statutes at issue in this case — FACA and the
Trade Act — are devoid of standards suggesting what Con-
gress intended when it required all advisory committees to be
“fairly balanced.” As a result, determination whether a given
ITAC is in compliance with the Trade Act’s requirements is
“hopelessly manipulable” and poses, as Judge Silberman
noted, “a major political question of our time.” Id. at 427,
429. Given that context, analysis of whether the ITACs satisfy
the “fairly balanced” requirement — both in terms of function
and points of view represented — is a task “not properly
undertaken by life-tenured, unelected federal judges.” Id. at
427-28. Instead, we believe that this determination is a pro-
cess best left to the executive and legislative branches of gov-
ernment.
[6] The language of the Trade Act and FACA compel this
result. FACA does not, for example, articulate what perspec-
tives must be considered when determining if the advisory
committee is fairly balanced. See 5 U.S.C. App. 2 § 5(b)(2).
While the Trade Act states that the ITACs “shall, insofar as
is practicable, be representative of all industry, labor, agricul-
tural, or service interests (including small business interests)
in the sector or functional areas concerned[,]” 19 U.S.C.
§ 2155(c)(2), that section provides no standards to allow us to
determine when it is, or when it is not, practicable to appoint
a certain interest onto one of the ITACs. Finally, the sugges-
tion in the Trade Act’s legislative history that the ITACs
should be “representative of the producing sectors of our
economy[,]” S. Rep. No. 93-1298 (1974), reprinted in 1974
11466 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
U.S.C.C.A.N. at 7249, provides no guidance. We are in no
position to determine whether the present composition of the
ITACs are “representative” and therefore in compliance with
the Trade Act. We have no reasoned basis from which to con-
clude whether adding a public health representative to any
one of the ITACs would achieve the proper balance, or
whether it would be practicable to do so. It is not a “ ‘difficult
question’ ” that courts must answer, as CPATH argues in its
brief on appeal. See Appellant’s Op. Brief at 15 (quoting
Microbiological Criteria, 886 F.2d at 434 (Edwards, J., con-
curring in part and dissenting in part)). Instead, it is a political
question arising out of a statute that provides us with no
meaningful standards to apply. This is a question that we are
ill-suited to decide.
CPATH argues that our holding here is in direct conflict
with decisions from our sister circuits. Not so. In fact, none
of our sister circuits have specifically addressed whether the
Trade Act supplies sufficiently definite standards to allow for
judicial review of FACA’s “fairly balanced” requirement.
Other courts have addressed the “fairly balanced” requirement
in the context of other laws and have found the ‘fairly bal-
anced’ requirement specific enough to allow for judicial
review. See Nat’l Anti-Hunger Coal. v. Exec. Comm. of the
President’s Private Sector Survey on Cost Control, 711 F.2d
1071 (D.C. Cir. 1983) (upholding the district court’s applica-
tion of FACA to Executive Order No. 12369, 47 Fed. Reg.
28899 (June 30, 1982)); Cargill, Inc. v. United States, 173
F.3d 323 (5th Cir. 1999) (applying FACA to National Insti-
tute for Occupational Safety and Health); Colo. Envtl Coal. v.
Wenker, 353 F.3d 1221 (10th Cir. 2004) (considering fairly
balanced requirement in context of resource advisory councils
mandated by Bureau of Land Management regulations). But
those decisions do not lessen our obligation to determine
whether these particular statutes contain sufficiently definite
standards for us to apply to allow for judicial review. As
noted, we conclude that they do not.
CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11467
CPATH heavily relies on National Anti-Hunger Coalition
as support for the argument that FACA’s “fairly balanced”
requirement is reviewable. CPATH argues that, because the
D.C. Circuit did not expressly decide the case on the particu-
lars of the statutes before the court, those factors must not be
controlling or even important. We disagree. The National
Anti-Hunger Coalition court affirmed the district court’s hold-
ing that the at-issue committee complied with FACA’s “fairly
balanced” requirement. 711 F.2d at 1074. The district court,
however, studied the Executive Order establishing the com-
mittee and concluded that “[t]he President’s express intent in
establishing the survey was to apply to federal programs the
expertise of leaders in the private sector with ‘special abilities
to give detailed advice on cost-effective management of large
organizations.’ ” Nat’l Anti-Hunger Coal. v. Exec. Comm.,
557 F. Supp. 524, 528 (D.D.C. 1983) (internal citation ommit-
ted). The district court concluded that in light of that objec-
tive, the plaintiffs failed to identify any actionable imbalance.
Id. As noted, the D.C. Circuit affirmed the district court’s
conclusion in this regard as “unimpeachable.” See Nat’l Anti-
Hunger Coal., 711 F.2d at 1074. We decline to follow
National Anti-Hunger Coalition, because it fails to answer the
question whether FACA’s “fairly balanced” requirement, as
applied to the Trade Act, presents a situation where there is
no law to apply. See Newman, 223 F.3d at 943.
CPATH also relies on the Fifth Circuit’s decision in Car-
gill, as support for its argument that the “fairly balanced”
requirement is reviewable. See Cargill, 173 F.3d at 334-38(holding that both the functional and point-of-view balance
requirements imposed by FACA were justiciable in light of
the “weight of the caselaw” favoring judicial review and cit-
ing Microbiological Criteria, 886 F.2d at 434 (Edwards, J.,
concurring in part and dissenting in part) and 423-25 (Fried-
man, J., concurring); Nat’l Anti-Hunger Coal., 711 F.2d at1074 n.2).
We decline CPATH’s invitation to follow Cargill because,
like National Anti-Hunger Coalition, the Cargill decision
11468 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
arose in a different statutory context, with different require-
ments for the committees than those presented by this case.
See Cargill, 173 F.3d at 327-28 (considering whether
National Institute for Occupational Safety and Health violated
FACA’s fairly balanced requirement). Further, the Cargill
decision offers little explanation why FACA’s fairly balanced
requirement is justiciable. Given the statutory framework
before us, we are compelled to hold that this is a case where
there is no law to apply. See Heckler, 470 U.S. at 830.
CPATH also relies on Wenker, where the Tenth Circuit
held that FACA’s “fairly balanced” requirement is review-
able. 353 F.3d at 1233. However, the Wenker court noted that
the regulations at issue in that case provided express guidance
as to the composition of the committees. Id. at 1233-34 (con-
sidering FACA’s “fairly balanced” requirement in light of 43
C.F.R. § 1784.2-1 and § 1784.6-1 and holding that such a
requirement was justiciable). As set forth above, no such reg-
ulations exist in this case. We therefore find Wenker persua-
sive only to the extent that it suggests that additional
regulations might, in some circumstances, be sufficient to
result in a reviewable controversy under the APA.
[7] We therefore conclude that neither FACA nor the Trade
Act provide us with meaningful standards to apply when
determining whether the “fairly balanced” requirement has
been violated. In light of the complexities involved with
United States trade policies, this is an area best suited to exec-
utive or legislative determination. The USTR is better
equipped — given this statutory framework — than the courts
to succeed in the task of determining the proper balance of the
ITACs. Allowing the USTR to determine the proper balance
for the ITACs’ membership will offer the best opportunity for
the ITACs to fulfill their statutory mandate under the Trade
Act.
[8] Thus, under the plain language of FACA and the Trade
Act, CPATH’s complaint is non-reviewable, and the district
CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11469
court correctly dismissed CPATH’s complaint on that basis.
Our holding here is, however, narrow. Although we hold that
CPATH’s challenge to the ITACs is non-reviewable, we do
not suggest that FACA’s “fairly balanced” requirement is
non-reviewable in every circumstance. It remains an open
question in this circuit whether FACA’s “fairly balanced”
requirement presents a reviewable controversy in other cir-
cumstances.
AFFIRMED.