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Physicians for Social Responsibility v. Wheeler

United States District Court, District of Columbia

February 12, 2019

ANDREW R. WHEELER, Acting Administrator, U.S. Environmental Protection Agency, in his official capacity Defendant.


          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, (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.


         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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