Food Chemical News v. Young
| Decision Date | 06 April 1990 |
| Docket Number | No. 89-5142,89-5142 |
| Parties | FOOD CHEMICAL NEWS, et al., Appellees, v. Frank E. YOUNG, Commissioner, Food and Drug Administration, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Marleigh D. Dover, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Douglas N. Letter, Washington, D.C., and Victoria F. Nourse, Attys., Dept. of Justice and Leslie Kux, Associate Chief Counsel for the Food and Drug Admin., were on the brief, for appellant.
Eleanor H. Smith, with whom Alan B. Morrison and David C. Vladeck, Washington, D.C., were on the brief, for appellees. Katherine A. Meyer, Washington, D.C., also entered an appearance for appellees.
Jo V. Morgan, Jr., Washington, D.C., was on the brief for amicus curiae, Federation of American Societies for Experimental Biology, urging reversal.
James R. Wright, Calvin H. Cobb, Jr., Washington, D.C., and Stewart Abercrombie Baker were on the brief, for amicus curiae, National Academy of Sciences, urging reversal.
Before RUTH BADER GINSBURG, SILBERMAN, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
This appeal requires us to decide whether the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II Sec. 1 et seq. (1982 and Supp. V), applies to a group of experts selected and managed by a private scientific organization pursuant to the organization's contract with the Food and Drug Administration (FDA) to provide counsel on food and cosmetics safety issues. The contractor, Federation of America Societies for Experimental Biology (FASEB), is a federation of major bio-medical research organizations (the American Physiological Society, the American Society for Biochemistry and Molecular Biology, the American Society for Pharmacology and Experimental Therapeutics, the American Association of Pathologists, the American Institute of Nutrition, the American Association of Immunologists, and the American Society for Cell Biology). Implementing its contract with the FDA, FASEB assembled a group of seven experts to address food safety and quality issues of concern to the FDA's Center for Food Safety and Applied Nutrition. This expert group, titled Expert Panel on Emerging Issues in Food Safety and Quality During the Next Decade, was declared by the district court an "advisory committee" subject to the requirements of FACA. Food Chemical News v. Young, 709 F.Supp. 5 (D.D.C.1989).
Just over three months after the district court's decision, the Supreme Court released a pathmarking opinion on the scope of FACA: Public Citizen v. United States Dep't of Justice, --- U.S. ----, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). Applying the analysis indicated in that controlling precedent, we conclude that the expert panel FASEB assembled pursuant to its contract with the FDA was not an "advisory committee" within the meaning of FACA. We therefore reverse the judgment of the district court.
In March 1988, the FDA solicited bids for a contract to provide "expert, objective counsel to the [FDA'S] Center for Food Safety and Applied Nutrition on general and specific issues associated with the safety of food and cosmetics." Food Chemical News, 709 F.Supp. at 6. FASEB bid on the contract, stating that performance would be effected by FASEB's Life Science Research Office, a permanent FASEB department, composed of some ten resident scientists, established to "analyze problems in the life sciences for Federal and private The contract between FASEB and the FDA provided for the periodic placement of "Task Orders" for services. This case centers on Task Order No. 3, captioned "Emerging Food Safety and Quality Issues for the Next Decade." Task Order No. 3 directed FASEB, "the contractor," to "assemble the pertinent information" on emerging issues by "describing the issue, evaluating the current knowledge, and offering expert counsel on what is needed for FDA to adequately address[ ] the issue." Consistent with FASEB's bid, Task Order No. 3 further specified:
agencies and organizations." Declaration of Kenneth D. Fisher, Director of FASEB's Life Science Research Organization, at 1. The FDA's solicitation did not refer to implementation through the appointment of expert panels. FASEB, however, proposed the use of "ad hoc groups of knowledgeable experts" to identify and address important issues, and was granted the contract in June 1988. 1
The contractor shall assemble an expert panel of scientists who have expertise in the areas of life sciences, food sciences and risk assessment or cost benefit analysis. Members of the panel should represent academia, industry, consumer, government and professional associations as appropriate. The panel will prepare a report to the contractor[.]
Next, the Task Order instructed:
The contractor shall review all comments and information prepared by the panel and prepare a report for submission for FDA.
To start the work Task Order No. 3 required, FASEB selected a group of experts and convened a first meeting of the panel January 11-13, 1989. Part of the meeting was open to the public, part was not. Just before that meeting took place, Food Chemical News, joined by Public Citizen Health Research Group and Center for Science in the Public Interest, commenced this litigation claiming that the ad hoc panel assembled pursuant to Task Order No. 3 should be subject to the public meetings and other requirements of FACA. Although plaintiffs initially sought a preliminary injunction, the parties eventually agreed that the district court should rule on the matter finally and dispositively, in response to their cross motions for summary judgment.
Enacted in 1972, FACA responded to a congressional will to assess the need for the "numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 5 U.S.C.App. II Sec. 2(a); see Public Citizen, 109 S.Ct. at 2562. Congress, through FACA, sought
to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature.
Public Citizen, 109 S.Ct. at 2562, citing 5 U.S.C.App. II Sec. 2(b).
Among the controls Congress installed, FACA requires each advisory committee to file a charter, 5 U.S.C.App. II Sec. 9(c), and to keep detailed minutes of its meetings, id. Sec. 10(c). Furthermore, a representative of the Federal Government, with authority to order adjournment, must attend advisory committee meetings. Id. Sec. 10(e). The public is entitled to advance notice of advisory committee meetings, and generally to attend them. Id. Sec. 10(a), (d). Subject to Freedom of Information Act limitations, advisory committee documents must be made available for public inspection. Id. Sec. 10(b). Advisory committee membership is to be "fairly balanced in terms of the points of view represented and the functions" the committee performs. Id. Sec. 5(b), (c).
FACA defines "advisory committee" to mean
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ..., which is--
(A) established by statute or reorganization plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes (i) the Advisory Commission on Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government.
Id. Sec. 3(2). We now turn to the dispositive question whether the Expert Panel on Emerging Issues in Food Safety and Quality During the Next Decade, the panel proposed, chosen, and convened by FASEB to work on Task Order No. 3, falls under FACA as a group or committee the FDA "established or utilized ... in the interest of obtaining advice."
We start with a key point that is not in dispute: FASEB and its Life Science Research Office do not figure in this case as an "advisory committee" subject to FACA; instead, FASEB falls under the main rule, made clear in the legislative history, that the H.R.Conf.Rep. No. 1403, 92d Cong., 2d Sess. 2, reprinted in 1972 U.S.Code Cong. & Admin.News 3508, 3509 (); see also H.R.Rep. No. 1017, 92d Cong., 2d Sess. 4, reprinted in 1972 U.S.Code Cong. & Admin.News 3491, 3494 (). Congress was no doubt mindful that government contractors, unlike the groups that prompted enactment of FACA, see supra 330, are subject to procurement regulations designed, or at least intended, to provide checks against waste and other misuses of government resources. See, e.g., 48 C.F.R. Secs. 9.500-505 ().
In the district court, plaintiffs successfully urged a distinction between FASEB, the contractor not subject to FACA, and the Task Order No. 3 expert panel. The district court...
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