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FOOD CHEM. NEWS v. YOUNG

March 9, 1989

FOOD CHEMICAL NEWS, et al., Plaintiffs,
v.
FRANK E. YOUNG, et al., Defendants


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 On March 29, 1988, the Food and Drug Administration ("FDA") published Solicitation No. 223-88-2124, entitled "Analysis of Scientific Issues in Food and Cosmetic Safety." The solicitation sought 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." Federal Defendant's Exhibit 1A at § B.1. The solicitation stated that one factor in the FDA's contracting decision would be the bidder's ability to draw on outside expertise in relevant disciplines. See id. at § M.2.a.; Federal Defendant's Memorandum in Support of Motion to Dismiss or, in the Alternative, for Summary Judgment and in Opposition to Plaintiff's Motion for a Preliminary Injunction ("Federal Defendant's Opposition to Preliminary Injunction") at 6. The solicitation did not specifically require the appointment of an "Expert Panel" or task force. Two companies bid for the contract. Defendant Federation of American Societies for Experimental Biology ("FASEB") proposed the use of expert panels and was granted the contract in June 1988. See Federal Defendant's Statement of Material Facts as to Which There is No Genuine Issue at paras. 5, 6. The other bid did not propose the use of expert panels.

 On September 30, 1988, the FDA presented FASEB with Task Order No. 3, which stated that FASEB "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" to "prepare a report to the contractor," who would then "review all comments and information prepared by the panel and prepare a report for submission to the FDA." Plaintiffs' Exhibit C at §§ C-2, C-3. FASEB then gathered a group of seven experts, none of whom are employed on a full-time basis by the government, to work on a panel that, in FASEB's own words, "will assist FDA in identifying and categorizing the important issues that will influence FDA's responsibilities for food safety and quality in the remaining decade of this century." Plaintiffs' Exhibit D at 2. This group has already held one meeting and has another meeting scheduled for March or April.

 Plaintiffs claim that the Expert Panel should be subject to the requirements of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2, including a "balanced membership" and public meetings. Although plaintiffs originally sought a preliminary injunction, all parties have now filed motions to dismiss or for summary judgment, and plaintiffs have requested that the hearing on the preliminary injunction be consolidated with a hearing on the merits. All parties now agree that this dispute should be resolved by these motions to dismiss or for summary judgment.

 Defendant FASEB contends that plaintiffs have not stated a claim against it upon which relief can be granted because FACA "does not permit suit by a private party against another pre-existing private party," and because a suit against the government is sufficient to provide relief under FACA. Washington Legal Foundation v. American Bar Ass'n Standing Comm. on Federal Judiciary, 648 F. Supp. 1353, 1361 & n.7 (D.D.C. 1986). Plaintiffs have not contested this contention. Accordingly, the accompanying Order will grant defendant FASEB's motion to dismiss for failure to state a claim upon which relief can be granted.

 Plaintiffs and federal defendant filed cross-motions for summary judgment on the issue of whether the Expert Panel is an "advisory committee" under FACA. The Act defines an advisory committee as, inter alia,

 
any committee, board, commission, council, conference, panel, task force, or other similar group, . . . which is . . . 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 . . . any committee which is composed wholly of full-time officers or employees of the Federal Government.

 On the establishment question, plaintiffs argue that Task Order No. 3 required FASEB to set up the Expert Panel and that the mere fact that FASEB chose the panel's members does not mean that the FDA did not "establish" the panel. Federal defendant, however, argues that the original solicitation did not require an expert panel and that FDA only issued Task Order No. 3 in response to FASEB's technical proposal in its bid that suggested such a panel. Thus, federal defendant claims that it was really FASEB, not FDA, that "established" the panel. The question of whether FDA established the Expert Panel, however, is not capable of resolution by simply deciding which entity first proposed the notion of an Expert Panel. Certainly an agency can be deemed to have "established" an advisory committee even though the impetus for that establishment came from outside the agency. Thus, the real issue is whether Task Order No. 3 mandates a committee of outside experts, in which case the FDA has established that committee, or whether the task order leaves the means of obtaining expert advice solely in the hands of the contractor, in which case the FDA has not established the committee.

 Task Order No. 3 states that its objective is "to provide, through outside expert means, counsel on issues that the scientific community considers of primary importance in the upcoming years." Plaintiffs' Exhibit C at § B-2. But the task order does not leave in doubt the question of how that expert advice is to be obtained. It specifically requires the contractor to "assemble an expert panel of scientists who have expertise in the areas of life sciences, food sciences and risk assessment or cost benefit analysis" that will prepare a report to the contractor for submission to the FDA. Id. at §§ C-2, C-3. Defendant FASEB admitted as much when, in a letter to the panel members, its Life Sciences Research Office stated that it was "establishing the Panel at the request of the Food and Drug Administration (under FDA Contract No. 223-88-2124)." Plaintiffs' Exhibit D at 1. Thus, the FDA, by issuing Task Order No. 3, established the Expert Panel.

 Lombardo v. Handler, 397 F. Supp. 792 (D.D.C. 1975), aff'd, 178 U.S. App. D.C. 277, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932, 53 L. Ed. 2d 248, 97 S. Ct. 2639 (1977), which federal defendant relies on heavily, is not to the contrary. Lombardo held that a committee created by the National Academy of Sciences under a contract with the Environmental Protection Agency was not an "advisory committee" under FACA. Although the fact that the proposal to create a committee within the Academy to conduct the air pollution study at issue in that case appeared to originate with the Academy, rather than with the agency, was certainly a factor in the Lombardo court's decision, it was not a definitive factor. See id. at 797. Just as important, if not more important, was a letter from the agency to the Academy "indicat[ing] that the E.P.A. was primarily concerned about the substance, scope and focus of the scientific study rather than with the internal organizational arrangements of the contractor performing the study." Id. Significantly missing from Lombardo was any contractual requirement placed by the agency upon the contractor as to how expert advice would be obtained. Thus, in Lombardo the agency hired the National Academy of Sciences to conduct a study and left the details of how that study was to be conducted up to the Academy. In contrast, in this case the FDA specifically contracted for an expert panel, put together by FASEB, to provide expert guidance to the agency on priorities in the coming decade. Task Order No. 3 indicates more than just agency "concern" over "the internal organizational arrangements of the contractor performing the study." Rather, Task Order No. 3 expressly mandates a certain organizational arrangement, namely an expert panel. Accordingly, even the Lombardo analysis yields the conclusion that the FDA established the Expert Panel within the meaning of FACA.

 The panel is also being "utilized by" the FDA within the meaning of FACA. Although the final report to the agency will technically be from FASEB, the record makes clear that the report will be, in all material respects, a report of the Expert Panel. Even FASEB's Technical Proposal in response to Task Order No. 3 states, " The ad hoc Expert Panel will prepare a documented report that addresses these topics [ i.e., FDA priorities]." Federal Defendant's Exhibit 1E at T-3 (emphasis added). The role of the FASEB staff assigned to this contract is "to support and administer the ad hoc Expert Panel's activities," not to provide substantive input. Id. at T-4. Indeed, FASEB is only assigning three individuals to work on this project: a Project Director, an Administrative Assistant, and a Secretary. See Plaintiffs' Exhibit C at § C-5(A). FASEB is only supplying administrative assistance; the Expert Panel is supplying the expertise that will be "utilized by" the FDA. As Kenneth D. Fisher of FASEB's Life Sciences Research Office ("LSRO") stated in FASEB's response to the FDA's original solicitation, "Discussion of the participants at the ad hoc group meeting constitutes the major basis for the LSRO report to the sponsoring agency." Federal Defendant's Exhibit 1B at Enclosure T-4, para. D; accord Federal Defendant's Exhibit 1E at T-5. Indeed, a FASEB brochure presented by plaintiffs nowhere indicates that FASEB has the capacity to provide scientific expertise. Instead, the brochure advertises such services as "membership maintenance and dues billing, bookkeeping and accounting, meeting and exhibit management, . . . publication and composition, printing and data processing" and the availability of facilities including a "well-equipped print shop," a mail room, and four conference rooms. Plaintiffs' Exhibit B.

 Furthermore, the procedures to be followed in the preparation of the report to the FDA guarantee that the opinions expressed therein will be those of the Expert Panel and not those of FASEB. Although the FASEB staff will draft an initial report, that report will be based on the Expert Panel's deliberations, will be revised by the FASEB staff as directed by the panel, and must be approved by the Expert Panel before it can be submitted to the agency to fulfill FASEB's contractual obligations. See Federal Defendant's Exhibit 1B at T-8, Exhibit 1E at T-7. In addition, the FDA will be sent a draft report before any FASEB supervisory personnel ever reviews the report. See Federal Defendant's Exhibit 1E at T-7. Even when the FASEB Board does review the report, however, it will only be asked to determine if the report meets the contract's scope of work requirements, is written in a scientific, scholarly manner, and is complete and scientifically valid. See Declaration of Kenneth D. Fisher, Ph.D., Federal Defendant's Exhibit 2 at para. 4. The FASEB Board will not be asked to assess the value of or make any independent contribution to the substantive opinions contained in the report. As long as the opinions are scientifically valid -- surely a less than ...


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