imbalances in membership are "simply irrelevant to the ability of the Executive Committee to perform its limited function fairly and impartially." Id.
In this case, the Committee is charged with addressing the selection of foods and food ingredients on the basis of the need for microbiological criteria that can be incorporated into governmental food protection programs and to confront 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. Thus the Court must determine whether under FACA the Committee as currently constituted is balanced in accordance with its advisory function. Plaintiff has offered no evidence that the Committee is unfit for this task.
The Committee is charged with a highly technical mandate which requires extensive scientific background as well as expertise in processing and distribution practices. Each of the Committee's members have extensive professional background in various aspects of food microbiology. In sum, there is no indication that the present Committee is unable to fulfill its functions.
Additionally, plaintiffs contend that the Committee is being inappropriately influenced by a special interest group, the food industry. In NTEU, the President established a Commission on Privatization to study all activities of the federal government and report on which government programs enterprises and activities are more appropriately part of the private sector. slip op. at 2. The NTEU Commission was comprised of thirteen members selected from both the private and public sectors as well as academia, but none of the Commission members represented the federal employees. Id. at 3. Plaintiffs in NTEU charged that the Commission was violative of the fairly balanced requirement of FACA since the Commission included no representative of federal employees who have a direct interest in the committee's recommendations particularly when the Commission hosts advocates of privatization only. Id. at 6. The NTEU Court concluded that "we do not find that Congress intended the 'fairly balanced' requirement to entitle every interested party or group affected to representation on the Commission." Id. at 8 (emphasis in original). The harm asserted in NTEU is very similar to the harm alleged in this case, except that in NTEU there were clearly no representatives of the plaintiffs' interests.
There was no finding that the NTEU Commission was inappropriately influenced even though it was dominated by the private sector because the nature of the function of the Committee governs the suitability of its members for the purpose of determining whether the Committee is balanced. In this case, there is representation on the Committee by individuals outside of industry. Further given the language of the Charter, representatives from different food industries are appropriate given the Committee's directive to study current and future distribution processes. Although plaintiffs argue that the Committee is being inappropriately influenced by the food industry, they have not offered any documented evidence 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.
Finally, plaintiffs stress the fact that in their view the consumer perspective is glaringly absent from the Committee in its current form, yet plaintiffs conceded at oral argument that defendants have discretion in selecting which consumer advocate or advocates are appointed to the Committee. Presumably this accounts for plaintiffs failure to specifically state what action should be taken to provide the balance sought by plaintiffs. Notwithstanding plaintiffs' arguments in this regard, the Court of Appeals for this Circuit noted in National Anti-Hunger Coalition, that FACA confers no cognizable personal right to an advisory committee appointment. 711 F.2d at 1074 n.2. Moreover, there is no reason to believe that Congress intended to prohibit the selection of specialized advice and while different choices could have been made to accomplish the goals of the Committee, the gathering of a particular group of experts is not in itself enough to render such an advisory committee unbalanced within the meaning of FACA. National Anti-Hunger Coalition, 557 F. Supp. at 528. If the purpose of this Committee was to study the effects of a particular type of regulation of microbiological criteria on the public, then the result might be different.
In conclusion, the Court notes that while Congress passed FACA with the goal of creating some controls and standards for governance of the advisory committee process, the statute presents various obstacles to appropriate judicial interpretation. 5 U.S.C. App. 1, § 2; See National Anti-Hunger Coalition, 557 F. Supp. at 530. In National Anti-Hunger Coalition, Judge Gesell addressed the problem of judicial interpretation of FACA.
. . . It [FACA] is obscure, imprecise, and open to interpretations so broad that in the present context at least it would threaten to impinge unduly upon prerogatives preserved by the separation of powers doctrine. Not surprisingly, litigants seize on such uncertainties and may try to press statutory claims beyond statutory boundaries. Many with considerable merit on their side criticize the involvement of federal courts in matters of this kind although the fault lies primarily with congressional drafting. If more expertise were applied to such enactments to ensure that Congress states with more precision what it intends, the rules of the game would be more sharply drawn and court involvement could be less.
557 F. Supp. at 530. This case illustrates several aspects of the difficulty of applying objective legal rules to the FACA. For example, plaintiffs rely solely on inferences and speculation to taint the composition of the Committee, thus food industry employment is equated with anti-regulatory sentiments and any member who has ever worked as a consultant for industry is also classified in this manner. Notably, plaintiffs have offered no specific evidence that their viewpoints are not adequately represented by the Committee. Like other courts which have addressed similar issues, this Court is concerned that if the speculative and conjectural injuries offered by the plaintiffs in this case were judicially cognizable, the Court would then be called upon to supervise the membership of federal advisory committees on a continual basis, thereby altering the composition of these committees on a subjective determination of fair balance. NTEU, slip op at 7 n.5, quoting, Metcalf v. National Petroleum Council, 180 U.S. App. D.C. 31, 553 F.2d 176 (D.C. Cir. 1977). Accordingly, plaintiffs' motion will be denied and the case dismissed.
An appropriate Order has been filed.