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PUBLIC CITIZEN v. NATIONAL ADVISORY COMM. ON MICRO

October 24, 1988

PUBLIC CITIZEN, et al., Plaintiffs,
v.
NATIONAL ADVISORY COMMITTEE ON MICROBIOLOGICAL CRITERIA FOR FOODS, et al., Defendants



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE.

 This case comes before the Court on plaintiffs' motion for a preliminary injunction. *fn1" Argument on the motion was heard on September 22, 1988. After careful consideration of the motion, the arguments of the parties, and the record in this case, the Court concludes that the preliminary injunction must be denied and the case dismissed.

 I

 On March 18, 1988, the Secretary of Agriculture established the National Advisory Committee on Microbiological Criteria for Foods (the Committee). The purpose of the Committee as evidenced by its Charter is to provide advice and recommendations on the development of microbiological criteria for foods. Charter of the Committee at 1(b). The Operating Procedures for the Committee (Operating Procedures) provide that membership on the Committee shall consist of appropriate personnel selected from the primary federal agencies having responsibility for assuring foods are safe and of acceptable quality, state and/or municipal food regulatory agencies, the food industry and academia. See Operating Procedures. Further the Operating Procedures indicate that the "Committee shall address the selection of foods and food ingredients on the basis of need for microbiological criteria that can effectively supplement and be incorporated into food protection programs of Federal, state and municipal food regulatory agencies; and development of criteria for each food for which it is determined that microbiological criteria would serve a useful purpose." Id. Additionally, "during its deliberations, the Committee shall address the continuing need for research to better understand the effects of current and emerging processing and distribution practices that may affect microbial safety and quality; and, the need to improve and develop methods for the detection and enumeration of microorganisms and their toxic agents that are important to the safety and quality of food." Id.

 When this suit was filed the Committee consisted of nineteen members. *fn2" In terms of area of expertise the Committee is composed 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 in various capacities by relevant federal agencies, six persons employed by private food companies and one individual employed by a food processors' organization. The Committee has met twice, on April 5 and 6 and on June 22 and 23, 1988. The Committee was scheduled to meet on October 20 and 21, 1988.

 II

 In their complaint, plaintiffs maintain that the purpose of the Committee is to provide advice on the types of biological contaminants that present the gravest risks to consumers, the kinds of foods on which USDA and HHS should focus their attention, and the nature of the regulatory scheme, if any, the federal government should devise to respond to the health threats posed by microorganisms. It is argued that in spite of the overriding significance of these issues, the USDA has refused to appoint even a single "consumer representative or advocate to the Committee". *fn3" They contend that over half of the members of the Committee are employees, consultants, or contractors of the food industry, which has a direct economic stake in the kind and scope of any federal regulation of microbiological contaminants. Public Citizen argues that the Committee has violated FACA which requires that all federal advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed" and that they must not be "inappropriately influenced . . . by any special interest group. . . ." 5 U.S.C. App. 1, § 5(b) (2)-(3). *fn4" A preliminary injunction is sought to prevent the Committee from proceeding with its work unless and until it meets the balanced membership requirements of FACA.

 In support of these assertions plaintiffs state that while there may be "conceptual and practical difficulties" in applying the "fairly balanced" requirement of FACA to some kinds of advisory committees relying on National Treasury Employees Union v. Reagan, Civ. No. 88-186 (D.D.C. February 25, 1988) (hereinafter NTEU), that these difficulties are not present in this case. Plaintiffs contend that where agency officials create an advisory committee to obtain guidance in performing a specific, discrete regulatory function, the agency cannot then allow the committee to be dominated by representatives of the regulated industry, "while entirely excluding representatives of consumers, *fn5" whose health may be directly affected by the work of the committee". Plaintiffs' Memorandum in Support of its' Motion for Preliminary Injunction at 23. Plaintiffs insist that the absence of consumer representation on the Committee is sufficient to condemn the Committee to a finding of illegal composition. Id. at 20. Public Citizen adds that because of the overwhelming involvement of the food industry there can be no serious debate as to whether the Commission is in compliance with the Congressional mandate of FACA. Id.

 In response defendants state that plaintiffs' motion must be denied on four grounds. First, plaintiffs have failed to demonstrate any likelihood of success on the merits since the requested relief is unwarranted because the Committee membership as presently constituted is balanced in terms of the scope of its efforts and functions it is to perform. Defendants argue that this fair balance prevents plaintiffs from showing that the Committee is inappropriately influenced by any special interest group. Second, plaintiffs have completely failed to demonstrate irreparable injury to them if the incumbent Committee continues to function. Additionally, plaintiffs have neither any legal entitlement to their own representative on the Committee nor have they demonstrated that their interests are not already represented on the Committee. Third, defendants submit that there has been no suggestion that plaintiffs have been unable to present their view to the Committee since the meetings are open to the public, therefore defendants conclude that any alleged injury is speculative and remote. Finally, defendants submit that since this field is largely unregulated, there is a substantial public interest in the development of microbiological criteria for foods to prevent death and illness from impure or contaminated foods. Defendants submit that the public interest strongly favors permitting the work of the Committee, charged with recommending regulations intended to protect the health of food consumer, to continue.

 III

 In order to warrant the issuance of a preliminary injunction, plaintiffs have the burden of demonstrating: 1) that they have a strong likelihood of success on the merits of their claim; 2) that they will be irreparably harmed if an injunction is not granted; 3) that the issuance of an injunction will not harm others; and 4) that the public interest will best be served by the injunction. Washington Metropolitan Area Transit Commission v. Holiday Tours Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977). Even in the FACA context, the extraordinary nature of a preliminary injunction demands that the requesting party carry the burden of demonstrating irreparable harm and inadequacy of legal remedies as a basis for such relief. National Association of People with Aids v. President Reagan, No. 87-2777, slip op. at 8 (D.D.C. Dec. 16, 1987). After applying these stringent legal rules to the facts of this case, the Court is constrained to conclude that plaintiffs have failed to carry the required burden for injunctive relief and in view of the absence of any factual dispute plaintiffs are not entitled to the relief requested as a matter of law.

 Since the term "balance" is not defined in the FACA, judicial inquiry in this area has turned on whether the "Committee's members represent a fair balance of viewpoints given the function to be performed." See National Anti-Hunger Coalition v. Executive Committee of the President's Private Sector Survey on Cost Control, 229 U.S. App. D.C. 143, 711 F.2d 1071, 1074 (D.C.Cir.), aff'g 557 F. Supp. 524 (D.D.C.), modified, 566 F. Supp. 1515 (D.D.C. 1983) (motion for relief from judgment granted). In National Anti-Hunger Coalition, the composition of the Executive Committee was challenged because it was almost exclusively comprised of executives of large corporations. Id. at 1072. The District Court held that since the Committee was designed to apply private sector expertise to attain cost-effective management in federal government, the President could legitimately select those with experience in fiscal management of large private organizations. National Anti-Hunger Coalition, 557 ...


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