cannot simply send its own opinions to the agency. It can either send the panel's opinions or it can send no opinions and breach its contract with the FDA. Therefore, if the agency is to utilize anybody's opinions, it will be the opinions of the Expert Panel, not the opinions of FASEB.
Again, Lombardo is not to the contrary on the question of whether the Expert Panel is being "utilized by" the FDA. First, the Lombardo court was heavily influenced by legislative history specifically addressing the special role of the National Academy of Sciences. See Lombardo, 397 F. Supp. at 798-800. Second, the legislative history upon which the Lombardo court relied to divine a legislative intent to exclude from FACA "groups providing advice to federal agencies pursuant to a contractual relationship" is ambiguous and is not reflected in any statutory provision. Had Congress intended to exclude from FACA all committees formed by government contractors, it could easily have so provided in the statute. But it did not.
Finally, the Lombardo court noted that the Department of Justice in 1973 concluded, in spite of the legislative history cited in Lombardo, that the mere existence of a contractual relationship could not automatically remove a committee from the coverage of FACA. Rather, the Department of Justice identified the "substance of the relationship" between the agency and the contractor -- focusing specifically on the review procedures by which the contractor did or did not exercise control over the committee's report -- as the critical element in determining whether a committee formed by a contractor was being utilized by the agency. See id. at 800 n.22. Although the Lombardo court did not similarly refer to this factor as "controlling," it did consider the relationship between the contractor and the committee. Concluding that the final report would be a report of the National Academy of Sciences rather than a report of the Academy's committee, the court held that the agency was, therefore, utilizing the Academy, not the Academy's committee. See id. at 800.
In contrast, as has been discussed supra, FASEB's review procedures are such that the final report will, in all material respects, be a report of the Expert Panel, not of FASEB. In Lombardo, the National Academy of Sciences was utilizing a committee to assist it in providing its advice to the Environmental Protection Agency. In this case, however, FASEB will not be presenting its advice to the FDA; it can only present the Expert Panel's advice. See supra slip op. at 9. Because even the Lombardo court recognized that the legislative history upon which it was relying was ambiguous and heavily influenced by the special role of the National Academy of Sciences, see Lombardo, 397 F. Supp. at 800, and because the only remaining factor considered by the Lombardo court -- the nature of the relationship between the contractor and the committee -- indicates that the substance of the report submitted to the FDA will come exclusively from the committee rather than from the contractor, the FDA must be found to be utilizing the Expert Panel.
Because the material facts not in dispute indicate that the Expert Panel is an advisory committee within the meaning of FACA, the accompanying Order will grant plaintiffs' motion for summary judgment and declare that the Expert Panel is subject to the provisions of FACA. Assuming that federal defendant will comply fully and in good faith with the law here declared, no injunction is necessary at this time. Nevertheless, plaintiffs retain the ability to apply for injunctive relief if the Court's confidence in federal defendant should prove to be misplaced.
DATE: March 8, 1989
ORDER - March 9, 1989
For the reasons stated in the accompanying Memorandum, it is this 8th day of March, 1989, hereby
ORDERED: that defendant Federation of American Societies for Experimental Biology's motion to dismiss should be, and is hereby, GRANTED; and it is further
ORDERED: that federal defendant's motion to dismiss and motion for summary judgment should be, and are hereby, DENIED; and it is further
ORDERED: that plaintiffs' motion for summary judgment should be, and is hereby, GRANTED; and it is further
ORDERED: that plaintiffs' motion for a preliminary injunction should be, and is hereby, DENIED as moot; and it is further
DECLARED: that the Expert Panel on Emerging Issues in Food Safety and Quality During the Next Decade ("Expert Panel") is an "advisory committee" subject to the requirements of the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended ; and it is further
DECLARED: that plaintiffs are entitled to an award of reasonable attorneys' fees and costs in this action pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
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