MEMORANDUM OPINION
TREVOR
N. MCFADDEN, U.S.D.J.
The
U.S. Environmental Protection Agency recently issued a
directive announcing new membership priorities for its
federal advisory committees (the “Directive”).
The Directive requires, in part, “that no member of an
EPA federal advisory committee be currently in receipt of EPA
grants.” The Plaintiffs complain that this requirement
is arbitrary and capricious, conflicts with several statutes
and regulations governing advisory committees, and is a shift
in policy that EPA failed to explain.
EPA's
Acting Administrator, [1] however, has moved to dismiss the suit
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
At the outset, EPA alleges that the Plaintiffs lack standing
and their claims are unripe. It also argues that because the
Directive is an appointment policy, it is a matter reserved
to agency discretion and the Plaintiffs largely rely on
statutes that are either inapposite or offer no meaningful
standard for review. And even if the Plaintiffs have
identified applicable statutes, EPA argues that the
Plaintiffs have failed to allege a violation of any specific
statutory provision. For the reasons stated below, EPA's
motion to dismiss will be granted.
I.
BACKGROUND
EPA's
mission is to protect human health and the environment.
See EPA, Returning EPA to its Core Mission,
https://www.epa.gov/home/returning-epa-its-core-mission (last
visited Feb. 11, 2019). Besides developing and enforcing
environmental regulations, EPA accomplishes its mission by
awarding grants to state environmental programs, non-profits,
and others to conduct research and implement environmental
projects. Indeed, many statutes that EPA administers
authorize grant programs that fund environmental research.
See, e.g., 42 U.S.C. § 7403(b)(3) (Clean Air
Act); 33 U.S.C. § 1254(b)(3) (Clean Water Act).
EPA
relies on 22 federal advisory committees for guidance on
various environmental and health issues to ensure effective
regulation. Advisory committees can be established by statute
or by the President or an agency head. Eight of EPA's
advisory committees are established by statute.[2] EPA's
advisory committees are subject to the Federal Advisory
Committee Act (“FACA”), 5 U.S.C. App. 2
§§ 1-15, which regulates the operations of federal
advisory committees.
Agency
heads have broad discretion over the composition of advisory
committees. Under the General Services Administration
regulations implementing FACA, “[u]nless otherwise
provided by statute, Presidential directive, or other
establishment authority, advisory committee members serve at
the pleasure of the appointing or inviting authority.
Membership terms are at the sole discretion of the appointing
or inviting authority.” 41 C.F.R. § 102-3.130(a).
FACA
imposes no specific constraints or requirements on who may
serve on advisory committees. But agencies must ensure that
membership is “fairly balanced in terms of points of
view represented and the functions to be performed by the
advisory committee.” 5 U.S.C. App. 2 § 5(b)(2).
And there must be provisions “to assure that the advice
and recommendations of the advisory committee will not be
inappropriately influenced by the appointing authority or by
any special interest.” Id. § 5(b)(3).
The
statutes establishing particular EPA advisory committees do,
however, impose some qualification requirements for committee
membership. Some qualification requirements are specific-
e.g., the CASAC must have “at least one member
of the National Academy of Sciences, one physician, and one
person representing State air pollution agencies.” 42
U.S.C. § 7409(d)(2)(A). Others are
general-e.g., the SAB's members “shall be
qualified by education, training, and experience to evaluate
scientific and technical information on matters referred to
the Board” by statute. 42 U.S.C. § 4365(b).
Members of EPA advisory committees are often scientists,
academics, medical professionals, or experts in areas
relevant to EPA's mission. While serving, some committee
members are classified as “special government
employees.”[3]
The
Directive announced four “principles and
procedures” that EPA would apply “when
establishing the membership of [advisory] committees, ”
in order to “strengthen and improve the independence,
diversity and breadth of participation on EPA federal
advisory committees.” Am. Compl., Ex. A
(“Dir.”), ECF No. 20-2. This suit relates to the
Directive's first principle. It requires that
“[m]embers shall be independent from EPA . . .
includ[ing] a requirement that no member of an EPA federal
advisory committee be currently in receipt of EPA
grants.” Id. ¶ 1. The principle, however,
does “not apply to state, tribal or local government
agency recipients of EPA grants.” Id. In an
accompanying memorandum, EPA explained that it sought to
avoid “creat[ing] the appearance or reality of
potential interference with [committee members'] ability
to independently and objectively serve” EPA. Am.
Compl., Ex. B (“Mem.”) at 3, ECF No. 20-3.
Previously, EPA allowed scientists and experts to serve on
advisory committees while receiving EPA grants.
The
Directive's three other principles are not at issue, but
they provide context. The Directive requires that
“committee balance should reflect prominent
participation from state, tribal and local governments,
” and “[s]uch participation should be appropriate
for the committee's purpose and function.” Dir.
¶ 2. To enhance geographic diversity, the Directive
requires that “membership should be balanced with
individuals from different states and EPA regions, ”
and emphasis “should be given to individuals from
historically unrepresented or underrepresented states and
regions.” Id. ¶ 3. Finally, “[t]o
encourage and promote the inclusion of new candidates with
fresh perspectives and to avoid prolonged and continuous
service, ” the Directive requires that
“membership should be rotated regularly.”
Id. ¶ 4.
The
Plaintiffs in this case-Physicians for Social Responsibility,
the National Hispanic Medical Association, the International
Society for Children's Health and the Environment
(ISCHE), Joe Arvai, Edward Avol, and Robyn Wilson
(collectively, “Physicians”)-are individuals and
organizations representing individuals, who are serving, have
served, or hope to serve on EPA advisory committees. After
EPA issued the Directive, it removed Dr. Wilson from the SAB
because she was receiving EPA grant funding. See Am.
Compl. ¶¶ 12, 57, ECF No. 20. And EPA told ISCHE
member Dr. Rob McConnell that, because of the Directive, he
must choose between continued service on the CASAC
Particulate Matter Review Panel and his EPA-funded research.
See Id. ¶¶ 62-63.
Physicians'
Amended Complaint brings four counts. In Count I, Physicians
allege that the Directive clashes with the conflict of
interest statute, 18 U.S.C. § 208, and ethics
regulations promulgated by the Office of Government Ethics
(“OGE”) because it bars activity that those rules
allow, see 5 C.F.R. § 2340.203(g). And they
allege that the Directive is a shift in EPA's policy that
the agency failed adequately to explain. They allege in Count
II that EPA did not comply with OGE procedural requirements
for supplementing the federal ethics rules. Physicians allege
in Count III that the Directive eliminates FACA's
requirements that committees be “fairly balanced”
and not “inappropriately influenced, ”
see 5 U.S.C. App. 2, § 5(b)(2), (3). Finally,
Physicians allege in Count IV that the Directive violates the
statutes establishing EPA advisory committees by removing
otherwise qualified scientists from consideration for
committee membership.
EPA,
however, asks that Physicians' claims be dismissed under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). EPA
first argues that Physicians lack standing and their claims
are not ripe. EPA also claims that Physicians are outside the
zone of interests protected by the conflict of interest
statute and OGE regulations, and those authorities do not
apply because the Directive is an appointment policy, not an
ethics rule. So EPA argues that the conflict of interest
statute and regulations provide no meaningful standard
against which to judge EPA's exercise of its discretion,
making Counts I and II unreviewable. Count III is
nonjusticiable, EPA asserts, because Sections 5(b)(2) and
5(b)(3) of FACA provide no meaningful standard for judicial
review. Finally, EPA maintains that Count IV fails under Rule
12(b)(6), because Physicians have failed to allege a
violation of any specific statutory requirement for
membership on EPA advisory committees.
II.
LEGAL STANDARDS
A
motion for dismissal under Rule 12(b)(1) “presents a
threshold challenge to the court's jurisdiction.”
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987). To survive a motion to dismiss under Rule 12(b)(1),
plaintiffs bear the burden of showing jurisdiction by a
preponderance of the evidence. See Lujan v. Def. of
Wildlife, 504 U.S. 555, 561 (1992). The court must
accept as true all factual allegations in the complaint and
draw all reasonable inferences in favor of the plaintiff, but
it need not “accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual
allegations.” Rann v. Chao, 154 F.Supp. 2d.
61, 64 (D.D.C. 2001). “Because Rule 12(b)(1) concerns a
court's ability to hear a claim, the court must
scrutinize the plaintiff's allegations more closely when
considering a motion to dismiss pursuant to Rule 12(b)(1)
than it would under a motion to dismiss pursuant to
12(b)(6).” Schmidt v. U.S. Capitol Police Bd.,
826 F.Supp.2d 59, 65 (D.D.C. 2011). If the court determines
that it lacks jurisdiction, it must dismiss the claim or the
action. Fed.R.Civ.P. 12(h)(3).
Rule
12(b)(6) allows a court to dismiss any count of a complaint
that fails “to state a claim upon which relief can be
granted.” The court still must treat the
complaint's factual allegations as true and must grant
the plaintiff the benefit of all inferences that can be
derived from the facts alleged. See Trudeau v. FTC,
456 F.3d 178, 193 (D.C. Cir. 2006). But it need not accept as
true a legal conclusion couched as a factual allegation.
See id.
To
survive a motion to dismiss under Rule 12(b)(6), a complaint
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citation omitted). “The standard does
not amount to a ‘probability requirement,' but it
does require more than a ‘sheer possibility that a
defendant has acted unlawfully.'” Thomas v.
Wash. Met. Area Transit Auth., 305 F.Supp.3d 77, 81
(D.D.C. 2018) (quoting Iqbal, 556 U.S. at 678). So a
plaintiff must put forth “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. In evaluating a 12(b)(6) motion, the court
may consider “the facts alleged in the complaint, any
documents either attached to or incorporated in the
complaint[, ] and matters of which [the court] may take
judicial notice.” EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
III.
ANALYSIS
A.
Physicians have established standing for the motion to
dismiss stage.
“[T]he
‘irreducible constitutional minimum' of standing
consists of three elements.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547-48 (2016) (citing
Lujan, 504 U.S. at 560). “The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Id. “Where, as here, a case
is at the pleading stage, the plaintiff must clearly allege
facts demonstrating each element.” Id.
(cleaned up). So to establish standing at the motion to
dismiss stage, Physicians “need only ‘state a
plausible claim that [they have] suffered an injury in fact
fairly traceable to the actions of the defendant that is
likely to be redressed by a favorable decision on the
merits.'” Bread for the City, Inc. v. U.S.
Dep't of Ag., 211 F.Supp.3d 327, 330 (D.D.C. 2016)
(quoting Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 913 (D.C. Cir. 2015)).
Dr.
Wilson and ISCHE, through its member Dr. McConnell, have
alleged facts establishing each element of standing to
survive the dismissal stage. First, they have alleged an
injury in fact. Physicians' Amended Complaint alleges
that EPA removed Dr. Wilson from the SAB, denying her a
“coveted and highly esteemed” position and the
benefits that flow from it, e.g., “recognition
and even prestige, ” see Cummock v. Gore, 180
F.3d 282, 292 (D.C. Cir. 1999). Am. Compl. ¶ 57.
Physicians also allege that Dr. McConnell faces imminent
removal from the CASAC Particulate Matter Review Panel or the
loss of his EPA grant funding. Id. ¶¶
62-63. Whatever choice Dr. McConnell makes, he will lose a
significant benefit. Thus, at this stage of the proceedings,
Physicians have sufficiently alleged that Drs. Wilson and
McConnell have suffered “‘an invasion of a
legally protected interest' that is ‘concrete and
particularized' and ‘actual or imminent, not
conjectural or hypothetical, '” Spokeo,
Inc., 136 S.Ct. at 1548 (quoting Lujan, 504
U.S. at 560).
Second,
Dr. Wilson's and Dr. McConnell's injuries are fairly
traceable to EPA's action. Dr. Wilson “received an
email notifying her that she had been removed from the SAB
due to the Directive.” See Am. Compl. ¶
57. And “an EPA staff person . . . confirmed that Dr.
McConnell must choose between his EPA-funded research and his
service on the CASAC Particulate Matter Review Panel, because
of the Directive.” Id. ¶ 63. Indeed, EPA
conceded at the hearing on the motion to dismiss that Dr.
Wilson and ISCHE had established injuries traceable to the
Directive. See Tr. at 41, ECF No. 42.
Finally,
Physicians have sufficiently alleged redressability. If the
Court invalidates the Directive, then Dr. Wilson may serve
again on the SAB without sacrificing her EPA funding. And Dr.
McConnell will not need to choose between EPA grant funding
and service on an advisory panel.
EPA
objects that the Plaintiffs other than Dr. Wilson and ISCHE
have not independently established standing. It also argues
that Dr. Wilson and ISCHE's standing does not extend to
Counts III and IV, if those counts relate to violations of
statutory requirements for committees other than the SAB and
the CASAC Particulate Matter Review Panel. But EPA's
arguments are not persuasive.
First,
Counts III and IV do not allege that particular advisory
committees violate their animating statutes or FACA. Instead,
Count III alleges that the Directive frustrates FACA's
“fair balance” and “inappropriate
influence” provisions, applicable to all EPA advisory
committees. And Count IV alleges that the EPA advisory
committees established by statute have a “statutory
direction to recruit the most qualified scientists for
service on EPA advisory committees, ” which the
Directive frustrates. Am. Compl. ¶¶ 157-59. Whether
the Directive preempts or frustrates these statutory
provisions is a legal question that is not necessarily
contingent on the ultimate composition of any particular
committee. Thus, because vacatur of the Directive based on
any defect in its promulgation, including those alleged in
Counts III and IV, would address Dr. Wilson's and
ISCHE's injuries, they have standing to bring all four
counts. See Sierra Club v. FERC, 867 F.3d 1357, 1366
& n. 3 (D.C. Cir. 2017).
Second,
having established Dr. Wilson's and ISCHE's standing,
the Court need not consider the other Plaintiffs'
standing independently. Physicians advance the same arguments
challenging the Directive, and “if one party has
standing in an action, a court need not reach the issue of
the standing of other parties when it makes no difference to
the merits of the case.” Ry. Labor Execs.'
Ass'n v. United States, 987 F.2d 806, 810 (D.C. Cir.
1993).
B.
Physicians' claims are ripe for review.
When
evaluating whether a claim is ripe for review, courts
consider “(1) whether delayed review would cause
hardship to plaintiffs; (2) whether judicial intervention
would inappropriately interfere with further administrative
action; and (3) whether the courts would benefit from further
factual development of the issues presented.” Ohio
Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733
(1998). Here the hardship to Physicians from delaying review
is obvious. Physicians allege that Dr. Wilson has already
suffered an injury because of the Directive, and Dr.
McConnell faces an imminent threat of harm. Moreover, review
of Physicians' claims would not inappropriately interfere
with further administrative action. Finally, the Court would
not benefit from further factual development. The crux of
Physicians' complaint is that the Directive is arbitrary
and capricious under the Administrative Procedure Act
(“APA”) and violates statutes governing
membership of federal advisory committees. This case is fit
for review “because it presents a clear-cut legal
question, i.e., whether the [agency's] policy is
inconsistent with the [governing statutes] or the APA.”
See Venetian Casino Resort, LLC v. EEOC, 409 F.3d
359, 364-65 (D.C. Cir. 2005).
C.
Physicians' alleged injuries are within the zone of
interests protected by the conflict of interest statute and
OGE regulations.
“The
‘zone of interest' test is a guide for deciding
whether, in view of Congress' evident intent to make
agency action presumptively reviewable, a particular
plaintiff should be heard to complain of a particular agency
decision.” Clarke v. Sec. Indus. Ass'n,
479 U.S. 388, 399 (1987). “The essential inquiry is
whether Congress intended for a particular class of
plaintiffs to be relied upon to challenge agency disregard of
the law.” Id. (cleaned up). “The test is
not meant to be especially demanding.” Id. So
a person suing under the APA need only assert an interest
that is “arguably within the zone of interest
to be protected or regulated by the statute” allegedly
violated. See Ass'n of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 153 (1970) (emphasis added).
“The test forecloses suit only when a plaintiff's
‘interests are so marginally related to or inconsistent
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