Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods ( 1989 )

Opinion for the court filed PER CURIAM.

Opinion, concurring in the judgment, filed by Circuit Judge FRIEDMAN.

Opinion, concurring in the judgment, filed by Circuit Judge SILBERMAN.

Opinion concurring in part and dissenting in part filed by Circuit Judge EDWARDS.

PER CURIAM:

This is an appeal from a judgment of the United States District Court for the District of Columbia dismissing a complaint filed by public interest organizations that challenge, as violating the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, § 5(b)(2)-(3) (1982), the composition of a federal advisory committee. Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 708 F.Supp. 359 (D.D.C.1988).

The members of the panel are divided about the correct disposition of the case. Judge Silberman concludes that the appellants do not have standing to maintain the suit and that their claims are not justicia-ble. Judge Friedman is of the view that the district court correctly rejected the challenges to the advisory committee. Judge Edwards concludes that the appellants have standing and raise justiciable claims, and that the appellants have shown that the composition of the advisory committee violates the Act. The result of these divergent views of the members of the panel is that the judgment of the district court is affirmed, with Judge Edwards concurring in part and dissenting in part.

The separate opinions of the members of the panel follow.

Opinion, concurring in the judgment, filed by Circuit Judge FRIEDMAN.

I

In November 1987, the United States Department of Agriculture (Department) announced plans to establish a National Advisory Committee on Microbiological Criteria for Foods (Committee). See 52 Fed. Reg. 43,216 (1987). The purpose of the Committee was to provide advice and recommendations to the Secretaries of Agriculture and Health and Human Services (HHS) on the development of microbiological criteria by which the safety and wholesomeness of food could be assessed.

The Committee’s mandate was primarily technical and scientific. Developing microbiological criteria for foods requires an understanding of the complex science in the area and an appropriate background and training. The types of microorganisms that can contaminate foods, the conditions under which these microorganisms grow, and the technologies available to detect, control, or eliminate such microorganisms must be evaluated.

The Committee’s charter designates the Assistant Secretary of Agriculture for Marketing and Inspection Services as Chairperson of the Committee, the Commissioner of the Food and Drug Administration (FDA) to serve as the Vice Chairperson, a representative of the Food Safety and Inspection Service to serve as Executive Secretary, and an FDA representative to act as an ex officio member for liaison. The charter further provides that the Committee is to consist of “not more than 20 [additional] individuals with expertise in food service, microbiology and other relevant disciplines.” Committee members are to be appointed by the Secretary of Agriculture after consultation with the Secretary of HHS.

The Operating Procedures for the Committee provide that membership on the Committee shall consist of “appropriate personnel” selected from the primary federal agencies having responsibility for assuring that foods are safe and of acceptable quality, state and/or municipal food regulatory agencies, the food industry, and academia.

The Secretary of Agriculture initially appointed 19 individuals to the Committee. One individual, an employee of a food processing company, resigned in September 1988. The Committee membership thus consisted of two university professors, one state agriculture department official, one state department of agriculture and consumer services official, two persons employed by food research firms, six persons employed by federal agencies, and six persons employed by private food companies.

Each of the Committee’s original members has an extensive background in food microbiology. Fourteen of the 18 members have Ph.D.’s in food microbiology or related disciplines, one is a medical doctor, and most have written extensively in the area of food science. One member, Dr. Mitchell Cohen, Deputy Director of the Centers for Disease Control, has been involved in public health issues. Another member, Dr. Martha Rhodes, is the Assistant Commissioner of the Florida Department of Agriculture and Consumer Services, a State agency charged with the protection of consumer interests. In addition to Dr. Cohen, five other members are employees of federal agencies that are charged with ensuring food safety.

The Committee held its first meeting on April 5, 1988. By letter dated May 12, 1988, the appellants requested the Secretary of Agriculture to “take immediate action to appoint consumer representatives with public health expertise to membership” on the Committee, and, further, offered to “recommend ... individuals with appropriate credentials in public health and consumer concerns." The Committee’s letter stated:

Despite the fact that the Committee’s stated function — to provide advice and recommendations regarding the “criteria by which the safety and wholesomeness of food can be assessed” — is of vital concern to the consuming public, the Committee includes absolutely no non-governmental individuals who are expert in the public health issues or who can be expected to insist that the public health concerns in avoiding contamination be balanced against industry concerns with controlling costs and processing methods ....

To compound matters, the Committee is dominated by industry representatives who have a direct financial stake in the Committee’s work. Indeed, of those members who are not federal employees ... it appears that well over 75 percent are representatives of the regulated industry.

The Assistant Secretary replied: Although the Committee is composed of scientific experts, the consumer perspective is also brought to the Committee by its membership. In particular, Dr. Martha Rhodes, Assistant Commissioner of the Florida Department of Agriculture and Consumer Services, was selected for the Committee because of her expertise in microbiology, public health, and consumer affairs, as well as her involvement with State governmental matters. If you would like to recommend others for membership on the Committee, we will be happy to review their qualifications and consider them when there is a vacancy-

The Assistant Secretary further noted: “In accordance with the provisions of the FACA, the first meeting of the Committee and the working groups was open to the public, and provisions were made for submission of public comments. It is our intention to continue this practice.”

The appellants then filed the present action in the district court seeking declaratory and injunctive relief against the government s alleged violation of the Federal Advisory Committee Act. They also sought a preliminary injunction against the Committee acting until it was “in compliance with the requirements” of the Act.

After a hearing on the preliminary injunction, which the parties agreed to treat as a trial on the merits, the district court denied the motion for a preliminary injunction and dismissed the complaint. The court held that the appellants “have failed to carry the required burden for injunctive relief,” 708 F.Supp. at 362, in that they had offered no evidence “that the Committee is unfit [to perform its advisory function],” id. at 363, “that the Committee members selected from the food industry have acted improperly or exceeded the scope of the mandate of the Committee in the work that the Committee has performed to date,” or “that [consumer] viewpoints are not adequately represented by the Committee.” Id.

II

In a supplemental brief filed after the case was argued on May 11, 1989, the government reported that on June 15, 1989, the Secretary of Agriculture appointed six new members to the Committee. One of the new members is Dr. Frank M. Calia, Vice Chairman and Director of Education for the Department of Medicine at the University of Maryland School of Medicine. Dr. Calia was one of three individuals the appellants had recommended for appointment to the Committee. According to the appellants’ letter of recommendation,

each of these individuals has extensive scientific expertise in one or more of the areas identified in the Federal Register notice, and each would bring a strong consumer and/or public health perspective to bear on the work of the Committee.

The government contends that the appointment to the Committee of Dr. Calia has made the case moot since “[w]ith the appointment of Dr. Frank M. Calia, one of Public Citizen’s own candidates ..., Public Citizen can no longer claim that ‘there are absolutely no representatives of consumer organizations’ on the Committee.” The appellants respond that despite the appointment of Dr. Calia, “the composition of the Committee and its Working Groups continues to be in violation of the balanced representation requirements of the Federal Advisory Committee Act....” The appellants further urge that the court should ignore the recent changes in the composition of the Committee and “should review the district court decision on the basis of the record properly before it and then — if the Court agrees with appellants that the district court did not correctly apply FACA’s balanced representation requirements — remand the case to the district court for an application of the correct legal standards to the present composition of the Committee and a determination of what relief is appropriate at this time.”

A. The case is not moot. The appellants’ response to the government’s contention of mootness shows that there still is an “actual controversy” between the parties, Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209,1216 n. 10, 39 L.Ed.2d 505 (1974), over the legality of the Committee’s composition, Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944), despite the addition of Dr. Calia to the Committee.

B. Although normally an appellate court decides an appeal on the basis of the record before the trial tribunal, National Anti-Hunger Coalition v. Executive Comm, of the President’s Private Sector Survey on Cost Control, 711 F.2d 1071, 1075 (D.C.Cir.1983), this does not mean that the appellate court must blind itself to events occurring after that record was closed. See Goland v. CIA, 607 F.2d 339, 367, 370 n. 7 (D.C.Cir.1979) (per curiam on motion to vacate and petition for rehearing), cert, denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). In the present case there is no dispute over Dr. Calia’s present membership on the Committee or the fact that the appellants recommended him for appointment as an appropriate “consumer representative.” There is accordingly no reason for this court to remand the case to the district court to augment the record to reflect the membership on the Committee of Dr. Calia (and the five other new members).

The appellants seek declaratory and in-junctive relief against the operation of the Committee. In determining whether the appellants are entitled to such relief, it is appropriate to consider the composition of the Committee at the time of the court’s judgment. Indeed, for the court to decide the appeal without regard to the changed facts that now exist, would be to render an advisory opinion, which this court has no authority to do. Accordingly, the validity of the Committee must be determined on the basis of its present membership.

As explained in part III below, even as originally constituted, the Committee did not violate the Act. A fortiori, a reconstituted Committee which includes one member whom the appellants themselves recommended, because he “would bring a strong consumer and/or public health perspective to bear on the work of the Committee,” satisfies the statute.

Ill

Section 5 of the Act, 5 U.S.C. App. 2, which the appellants assert the composition of the Committee violates, provides in pertinent part:

(b) ... Any such legislation [establishing an advisory committee] shall—

(2) require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee;

(3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment;....

(c) To the extent they are applicable, the guidelines set out in subsection (b) of this section shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee.

5 U.S.C. App. 2 § 5 (1988). These provisions were designed to counter “the belief that these [advisory] committees do not adequately and fairly represent the public interest [or] that they may be biased toward one point of view or interest.” S.Rep. No. 1098, 92d Cong., 2d Sess. 4-5 (1972).

A. Although the statute does not define the term “fairly balanced” in section 5(b)(2), the Senate report on the Act states that “legislation [establishing an advisory committee] shall ... require that membership of the advisory committee shall be representative of those who have a direct interest in the purpose of such committee.” S.Rep. No. 1098, 92d Cong., 2d Sess. 9 (1972). Referring to this statement, this court has noted that the Act’s “legislative history makes clear, [that] the ‘fairly balanced’ requirement was designed to ensure that persons or groups directly affected by the work of a particular advisory committee would have some representation on the committee.” National Anti-Hunger Coalition, 711 F.2d at 1074 n. 2. This does not mean, however, that “Congress intended the ‘fairly balanced’ requirement to entitle every interested party or group affected to representation on the Commission.” National Treasury Employees Union v. Reagan, 1988 WL 21700 at 3 (D.D.C. Feb. 25, 1988) (Civ. A. No. 88-186).

The appellants originally contended that because the Committee’s recommendations will directly affect the interests of consumers, the Act requires that the Committee contain representatives of consumers, and that the Committee lacks such representation because “not a single member of the Committee works for, or is associated with, a consumer or public health organization, despite the fact that there are such individuals who have expertise and backgrounds in the very issues to be scrutinized by the Committee.”

Section 5, however, “confers no cognizable personal right to an advisory committee appointment.” National Anti-Hunger Coalition, 711 F.2d at 1074 n. 2. Thus, none of the individuals the appellants have recommended is entitled to a position on the Committee. Moreover, the appellants have not pointed to any provision of the Act, and I know of none, that requires that the Committee must include individuals who work for, or are associated with, a consumer or public health organization.

The appropriate inquiry in determining whether the Committee’s membership satisfies the “fairly balanced” standard in section 5(b)(2) is whether the Committee’s members “represent a fair balance of viewpoints given the functions to be performed.” 711 F.2d at 1074. Since the Committee’s function in this ease involves highly technical and scientific studies and recommendations, a “fair balance” of viewpoints can be achieved even though the Committee does not have any members who are consumer advocates or proponents of consumer interests.

The statutory directive that membership of the Committee be “fairly balanced” does not mean that such balance can be provided only by individuals who work for, or are associated with, a consumer or public health organization. The Act does not require that “consumer organizations” be directly represented on the Committee. Section 5(b)(2) is a general provision requiring only that the membership of an advisory committee be “fairly balanced”; it does not specify how the “fairly balanced” membership is to be achieved in terms of either the type of representatives or their number. In contrast, in other statutes governing the composition of advisory committees, Congress specified precisely which groups were to be represented. For example, section 17 of the Federal Energy Administration Act of 1974, 15 U.S.C. § 776, enacted two years after the FACA, provides, in pertinent part:

(a) Whenever the Administrator shall establish or utilize any ... committee, ... not composed entirely of full-time Government employees, ... the Administrator shall endeavor to insure that each such group is reasonably representative of the various points of view and functions of the industry and users affected, including those of residential, commercial, and industrial consumers, and shall include, where appropriate, representation from both State and local governments, and from representatives of State regulatory utility commissions, selected after consultation with the respective national associations.

15 U.S.C. § 776(a) (1987).

The determination of how the “fairly balanced” membership of an advisory committee, in terms of the points of view represented and the functions the committee is to perform, is to be achieved, necessarily lies largely within the discretion of the official who appoints the committee. In my view, the membership of the Committee that the Secretary of Agriculture appointed did not violate the “fairly balanced” requirement of the Act, and the Secretary did not abuse his discretion by failing to include on the Committee direct representatives of consumer organizations.

As noted, the members of the Committee are highly trained and skilled in food microbiology. Two of the original members, Drs. Rhodes and Cohen, fairly may be viewed as representing the interests of consumers in being protected against contaminated and unwholesome food. Dr. Calia, recently appointed to the Committee, is by the appellants’ own standards an appropriate “consumer representative.”

Dr. Rhodes, the Assistant Commissioner of Agriculture of the Florida Department of Agriculture and Consumer Services, is a member of the American Public Health Association, has received awards for “Recognition of Outstanding Abilities and Competence in Administration and Enforcement of Food and Drug Law,” has served as a member of the Steering Committee of the National Conference on Food Protection, and has made numerous presentations to “Consumer and Professional Food Related Societies.” Dr. Cohen, the Deputy Director for the Division of Bacterial Diseases at the Center for Infectious Diseases, has worked for the Centers for Disease Control since 1976. He has served as a consultant for the World Health Organization, the Food and Drug Administration, and the National Institutes of Health, and has received an Outstanding Service Medal from the Public Health Service. Dr. Cohen is deeply involved in representing and furthering public health interests.

The appellants challenge the suitability of Dr. Rhodes and Cohen to represent the interests of consumers because they are government employees. They assert that “FACA’s legislative history expressly indicates that ‘consumer, or other public interest groups’ outside of government should be represented on advisory bodies, like the Microbiological Committee, that have a direct impact on the public health and safety.” They cite H.R.Rep. No. 1017, 92d Cong., 2d Sess. 6 (1972), reprinted in 1972 U.S. Code Cong. & Admin.News 3491, 3496, which states:

One of the great dangers in the unregulated use of advisory committees is that special interest groups may use their membership on such bodies to promote their private concerns. Testimony received at hearings before the Legal and Monetary Affairs Subcommittee pointed out the danger of allowing special interest groups to exercise undue influence upon the Government through the dominance of advisory committees which deal with matters in which they have vested interests.

In its report on “The Establishment of a National Industrial Wastes Inventory” this committee commented on the operations of the Advisory Council on Federal Reports, which was organized by several national business organizations at the request of the Office of Management and Budget. When Council members met with government officials to consider a proposed national industrial wastes inventory questionnaire, only representatives of industry were present. No representatives of conservation, environment, clean water, consumer, or other public interest groups were present. This lack of balanced representation of different points of view and the heavy representation of parties whose private interests could influence their recommendations would be prohibited by the provisions contained in section 4 of the bill.

That statement, however, referred to a situation where the only individuals who met with government officials were representatives of industry. The membership of the Committee in this case cannot properly be so described. This statement does not indicate that Congress intended to require that representatives of “consumer, or other public interest groups” be members of every advisory committee that deals with issues that affect the public interest.

The appellants criticize the appointment of Dr. Calia because “[wjithout providing any explanation, USDA refused to appoint either of the individuals nominated by Public Citizen who has actually worked for a consumer organization.” As noted, however, nothing in the Act requires that any member of the Committee must have “actually worked for a consumer organization.” Having recommended Dr. Calia to the Secretary an an appropriate member of the Committee, who “would bring a strong consumer and/or public health perspective to bear on the work of the Committee,” the appellants cannot now validly complain because the Secretary appointed him instead of the other two individuals the appellants also recommended.

The appellants also contend that since Dr. Calia has been assigned to one of the Committee’s two working groups, the Seafood Group, the Committee’s composition still violates the Act because “one of the two working groups formally established by the Committee — the Meat and Poultry Working Group — continues ... to lack any member who is even arguably a consumer representative.” This argument fails because, as noted, the composition of the Committee (or its working groups) does not violate the Act merely because it does not include a sufficient number of “consumer representatives” as the appellants define that term.

B. Section 5(b)(3) requires that provision be made to assure that the advisory committee’s “advice and recommendations ... not be inappropriately influenced ... by any special interest_” The requirement is designed to protect against “the danger of allowing special interest groups to exercise undue influence upon the Government through the[ir] dominance of advisory committees which deal with matters in which they have vested interests.” H.R.Rep. No. 1017, at 6, reprinted in 1972 U.S. Code Cong. & AdminNews at 3496. A Senate staff report submitted by Senator Percy stated:

Viewed in its worst light, the federal advisory committee can be a convenient nesting place for special interests seeking to change and preserve a federal policy for their own ends. Such committees stacked with giants in their respective fields can overwhelm a federal decision maker, or at least make him wary of upsetting the status quo.

118 Cong.Rec. 30,276 (1972).

The appellants contend that the Committee is being inappropriately influenced by a special interest group, the food industry. They assert that “[a]s currently constituted, a majority of the Committee’s 18 members are employees, contractors, or consultants of the food industry — i.e., six direct industry representatives, two persons who work for research companies whose clients are food companies, and two ‘academic’ representatives, both of whom have done substantial consulting work for the food industry, and one of whom admits that his program, the Food Research Institute, is funded by ‘unrestricted gifts’ from the food industry.”

The appellants have not shown that the original Committee was dominated or “inappropriately influenced” by food industry representatives. Only six of the 18 members were employed by the food industry. The appellants’ contention that four other members of the Committee — the two employees of independent food research firms and the two university professors — represent food industry interests is unconvincing. The mere fact that the individuals employed by independent food research firms have food company clients or that the professors have performed some consulting work for food companies in the past, does not demonstrate that they are a part of "special interest groups [that] may use their membership on [advisory committees] to promote their private concerns,” H.R. Rep. No. 1017, at 6, reprinted in 1972 U.S.Code Cong. & Admin.News at 3496, about which Congress was concerned.

Only one of the six additional members of the Committee is employed by the food industry: Dr. David M. Theno, Jr., Director of Technical Services at Foster Farms. As noted, Dr. Calia is connected with a medical school. Three other members also have academic affiliations: Dr. David W. Dres-sen, Associate Professor, Department of Medical Microbiology, College of Veterinary Medicine, The University of Georgia; Dr. Merle D. Pierson, Department Head and Professor, Department of Food Science and Technology at Virginia Polytechnic Institute and State University; and Dr. Ran-zell Nickelson, Adjunct Professor at Texas A & M University, and President of Applied Microbiological Services, Inc. The other new member is Dr. Catherine E. Adams, Special Assistant to the Administrator, Food Safety and Inspection Service, United States Department of Agriculture.