The Cornucopia Institute et al v. United States Department of Agriculture et alBrief in Support of 12 Motion to DismissW.D. Wis.August 15, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ) THE CORNUCOPIA INSTITUTE, et al., ) ) Plaintiffs, ) v. ) CIVIL ACTION NO. 16-CV-246 UNITED STATES DEPARTMENT OF ) AGRICULTURE, et al., ) ) Defendants. ) ) MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOHN W. VAUDREUIL United States Attorney RICHARD J. HUMPHREY Assistant United States Attorney ELIZABETH J. SHAPIRO LISA A. OLSON U.S. Department of Justice Civil Division 20 Mass. Ave., N.W., Room 7300 Washington, DC 20530 Telephone: (202) 514-5633 Telefacsimile: (202) 616-8470 Email: lisa.olson@usdoj.gov Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 1 of 40 i TABLE OF CONTENTS PAGE INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2 I. THE FEDERAL ADVISORY COMMITTEE ACT ...........................................................2 II. THE NATIONAL ORGANIC STANDARDS BOARD .....................................................4 III. PLAINTIFFS' CHALLENGE TO THE APPOINTMENT OF TWO BOARD MEMBERS ..........................................................................................................................5 IV. THE ALLEGATIONS OF THE COMPLAINT ..................................................................8 ARGUMENT .................................................................................................................................10 I. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF SUBJECT- MATTER JURISDICTION ...............................................................................................10 A. FACA Does Not Provide For A Private Right Of Action .....................................10 B. Plaintiffs Lack Article III Standing........................................................................12 1. Plaintiffs Fail to Show a Procedural Right Sufficient for Procedural Standing ...................................................................................13 2. Plaintiffs' Alleged Injuries Are Speculative ...............................................16 3. Plaintiffs' Claimed Injury Is Not "Fairly Traceable" To The Alleged FACA Violation ...........................................................................19 4. Plaintiffs' Alleged "Fair Balance" Injury Cannot Be Redressed By Judicial Relief .....................................................................22 II. THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE PLAINTIFFS' "FAIR BALANCE" AND "INAPPROPRIATE INFLUENCE" CLAIMS ARE NONJUSTICIABLE ........................................................23 A. Plaintiffs' "Fair Balance" Challenge Fails Because The Board Complies With The Composition Requirements Of The Organic Foods Production Act, And There Is No Meaningful Standard To Apply .........................................23 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 2 of 40 ii B. Plaintiffs' "Inappropriate Influence" Challenge Fails Because There Is No Meaningful Standard To Apply ...................................................................28 CONCLUSION ..............................................................................................................................31 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 3 of 40 iii TABLE OF AUTHORITIES CASES PAGE(S) Alexander v. Sandoval, 532 U.S. 275 (2001) ................................................................................................................. 11 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................. 12 Ass'n of Am. Physicians and Surgeons, Inc. v. Koskinen, No. 13-C-1214, 2014 WL 1056495 (E.D. Wisc. 2014), aff'd, 768 F.3d 640 (7th Cir. 2014) ................................................................................... passim Ass'n of Am. Physicians and Surgeons, Inc. v. U.S. Dep't of Health and Human Servs., Civ. Action No. 06-0319 (ESH), 2006 WL 2882707 (D.D.C. 2006) ..................... 14, 15, 18, 22 Baggett v. First Nat'l Bank of Gainsville, 117 F.3d 1342 (11th Cir. 1997) ................................................................................................ 11 Bensman v. U.S. Forest Serv., 408 F.3d 945 (7th Cir. 2005) ................................................................................................... 14 Center for Food Safety v. Vilsack, No. 3:15-cv-01590-HSG (N.D. Cal. filed April 7, 2015) ........................................................ 12 Center for Law and Educ. v. Dep't of Educ, 315 F. Supp. 2d 15 (D.D.C. 2004), aff’d, 396 F.3d 1152 (D.C. Cir. 2005) ............................................................................................................ 14, 19, 21 Center for Policy Analysis on Trade and Health v. Office of the U.S. Trade Representative, 540 F.3d 940 (9th Cir. 2008) .................................................................................................... 29 Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367 (2004) ............................................................................................................. 2, 11 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ................................................................................................................. 24 Clapper v. Amnesty Int'l USA, __ U.S. __, 133 S. Ct. 1138 (2013) .................................................................................... 16, 21 Colo. Envtl. Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004) ................................................................................... 11, 28, 29 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 4 of 40 iv Credit Union Nat'l Ass'n, Inc. v. Am. Inst. of Certified Pub. Accountants, Inc., 832 F.2d 104 (7th Cir. 1987) ................................................................................................... 20 DeLuca v. Lariva, 586 Fed. Appx. 239 (Mem.)..................................................................................................... 23 Diamond v. Charles, 476 U.S. 54 (1986) ................................................................................................................... 19 Doe v. Shalala, 862 F. Supp. 1421 (D. Md. 1994) ...................................................................................... 26, 28 In Re Endangered Species Act Section 4 Deadline Litigation - MDL No. 2165, 704 F.3d 972 (D.C. Cir. 2013) ........................................................................................ 14 Fertilizer Inst. v. EPA, 938 F. Supp. 52 (D.D.C. 1996) .......................................................................................... 26, 27 Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28 (D.D.C. 2011) ........................................................................................... 11 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ................................................................................................................. 18 Grafton Corp. v. Hausermann, 602 F.2d 781 (7th Cir. 1979) ................................................................................................... 10 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................................................................................................. 18 Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................................................... 23, 24, 26, 28 Hunt v. Wash. State Apple Advertising Comm'n., 432 U.S. 333 (1977) ................................................................................................................. 13 Int'l Brominated Solvents Ass'n v. Am. Conf. of Gov'tal Indus. Hygienists, 393 F. Supp. 2d 1362 (M.D. Ga. 2005) .............................................................................. 11, 12 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ................................................................................................................. 10 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................... 12, 13, 14, 21 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 5 of 40 v Metcalf v. Nat’l Petroleum Council , 553 F.2d 176 (D.C. Cir. 1977) ..................................................................................... 16, 17, 27 Mulqueeny v. Nat'l Comm'n on the Observance of Int'l Women's Year, 549 F.2d 1115 (7th Cir. 1977) .......................................................................................... passim N.J. Physicians, Inc. v. President of the U.S., 653 F.3d 234 (3rd Cir. 2011) ................................................................................................... 18 Nat'l Parks Conservation Ass'n v. U.S. Dep't of Interior, No. 2:11-CV-578-FTM-29, 2012 WL 3589804 (M.D. Fla. Apr. 12, 2012) ............................ 27 Nat'l Anti-Hunger Coalition v. Exec. Com. of the President's Private Sector Survey on Cost Control, 557 F. Supp. 524 (D.D.C. 1983) ............................................................................................... 25 Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985) .................................................................................................... 11 Perry v. Sheahan, 222 F.3d 309 (7th Cir. 2000) ................................................................................................... 22 Public Citizen v. Dep't of Health and Human Servs., 795 F. Supp. 1212 (D.D.C. 1992) ...................................................................................... 26, 28 Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 886 F.2d 419 (D.C. Cir. 1989) .......................................................................................... passim R.J. Reynolds Tobacco Co. v. FDA, 810 F.3d 827, 830 (D.C. Cir. 2016) ................................................................................... 18, 21 Raines v. Byrd, 521 U.S. 811 (1997) ................................................................................................................. 12 Reid v. Ill. State Bd. of Educ., 358 F.3d 511 (7th Cir. 2004) ................................................................................................... 17 Sanchez v. Pena, 17 F. Supp. 2d 1235 (D.N.M. 1998) ...................................................................... 15, 18, 24, 27 Schirmer v. Nagoda, 621 F.3d 581 (7th Cir. 2010) ................................................................................................... 13 Shakeman v. Dunne, 829 F.2d 1387 (7th Cir. 1987) ................................................................................................. 20 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 6 of 40 vi Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) ................................................................................................ 10 Sierra Club v. Morton, 404 U.S. 727 (1972) .................................................................................................................. 19 Simon v. Eastern Ky.Welfare Rights Org., 426 U.S. 26 (1976) ............................................................................................................. 12, 13 Singh v. Moyer, 867 F.2d 1035 (7th Cir. 1989) ........................................................................................... 12, 24 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) ............................................................................................................. 13, 22 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ........................................................................................................... 14, 19 Susan B. Anthony List v. Driehaus, __ U.S. __, 134 S. Ct. 2334 (2014) .......................................................................................... 13 Turlock Irrigation Dist. v. F.E.R.C., 786 F.3d 18 (D.C. Cir. 2015) ............................................................................................. 18, 19 Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010) ................................................................................................... 23 Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992) ................................................................................................. 11 Vt. Agency of Natural Res. v. United States, 529 U.S. 765 (2000) ................................................................................................................. 13 Warth v. Seldin, 422 U.S. 490 (1975) ........................................................................................................... 19, 22 Webster v. Doe, 486 U.S. 592 (1988) ................................................................................................................. 24 STATUTES 5 U.S.C. App. 2 ...................................................................................................................... passim 5 U.S.C. App. 2 § 2(b) .................................................................................................................... 2 5 U.S.C. App. 2 § 5(b) .............................................................................................................. 9, 23 5 U.S.C. App. 2 § 5(b)(1).............................................................................................................. 25 5 U.S.C. App. 2 § 5(b)(2)................................................................................................................ 3 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 7 of 40 vii 5 U.S.C. App. 2 § 5(b)(3)................................................................................................................ 9 5 U.S.C. App. 2 § 5(c) .................................................................................................................... 9 5 U.S.C. App. 2 § 8 ....................................................................................................................... 14 5 U.S.C. App. 2 § 9(c) .................................................................................................................... 3 5 U.S.C. § 552 ................................................................................................................................. 3 5 U.S.C. § 701(a)(2) ...................................................................................................................... 24 5 U.S.C. § 702 ............................................................................................................................... 12 5 U.S.C. §§ 551 ....................................................................................................................... 12, 24 7 U.S.C § 6517(c)(1)-(2) ................................................................................................................. 7 7 U.S.C. App. 2 ............................................................................................................................. 26 7 U.S.C. § 6515 ............................................................................................................................... 5 7 U.S.C. § 6517(a) .......................................................................................................................... 6 7 U.S.C. § 6517(e) .......................................................................................................................... 8 7 U.S.C. § 6518(a) .............................................................................................................. 5, 16, 30 7 U.S.C. § 6518(b) .............................................................................................................. 5, 23, 30 7 U.S.C. § 6518(b)(1) ..................................................................................................... 6, 9, 24, 27 7 U.S.C. § 6518(c) .................................................................................................................. 14, 30 7 U.S.C. § 6518(i) ........................................................................................................... 7, 8, 20, 30 7 U.S.C. § 6518(k)(1) ............................................................................................................... 5, 20 7 U.S.C. §§ 6504 ............................................................................................................................. 4 7 U.S.C. §§ 6518(k)(2), 6518(l) ...................................................................................................... 7 Pub. L. No. 101-624, 104 Stat. 3935 (1990) ................................................................................... 4 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 8(a)(2) ................................................................................................................... 12 Fed. R. Civ. P. 12(b)(1)........................................................................................................... 10, 23 Fed. R. Civ. P. 12(b)(6)................................................................................................................. 23 RULES AND REGULATIONS 7 C.F.R. Part 205........................................................................................................................... 30 7 C.F.R. § 205.607(a)...................................................................................................................... 7 7 C.F.R. §§ 205.601-205.606 ...................................................................................................... 6, 7 41 C.F.R. Part 102-3 ..................................................................................................................... 29 41 C.F.R. § 102-3.35 ..................................................................................................................... 16 70 Fed. Reg. 35,177 (June 17, 2005) .............................................................................................. 7 72 Fed. Reg. 2,167 (Jan. 18, 2007) ................................................................................................. 7 77 Fed. Reg. 37,374 (June 21, 2012) .............................................................................................. 5 78 Fed. Reg. 56,811 (Sep. 16, 2013) .............................................................................................. 7 79 Fed. Reg. 13,982 (March 12, 2014) ........................................................................................... 5 80 Fed. Reg. 19,059 (April 9, 2015) ............................................................................................... 5 LEGISLATIVE MATERIALS S. 2064, 92d Cong. 1st Sess. 16 (1971), reprinted in 117 Cong. Rec. 19,805 (1971) ................. 11 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 8 of 40 viii S. 1637, 92d Cong. 1st Sess. 11 (1971), reprinted in 117 Cong. Rec. 11,444 (1971) ................. 11 H.R. Rep. No. 91-1731 (1970) ...................................................................................................... 25 H.R. Rep. No. 92-1403 (1972) ...................................................................................................... 25 S. Rep. No. 92-1098 (1972) ......................................................................................................... 25 S. Rep. No. 752 (1945) ................................................................................................................ 24 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 9 of 40 1 INTRODUCTION Based on their alleged interest in the integrity of organic food standards, plaintiffs ask the Court to alter the composition and practices of a federal advisory committee, the National Organic Standards Board ("Board" or NOSB"), so that, in plaintiffs' view, the Board will be more "fairly balanced" and not "inappropriately influenced" by the United States Department of Agriculture ("USDA"). The Secretary of USDA ("Secretary") established the Board in accordance with the Federal Advisory Committee Act ("FACA") to advise USDA about the implementation of the Organic Foods Production Act of 1990 ("Act" or "OFPA"). The complaint alleges that the two individual plaintiffs should have been appointed to the Board, and that USDA inappropriately influenced the Board by changing certain of its practices. See Complaint for Declaratory and Injunctive Relief ("Complaint"). Consequently, the fifteen- member Board has allegedly voted to make recommendations that plaintiffs disagree with, ultimately lowering the perceived integrity of organic foods, and thereby harming plaintiff Cornucopia's reputation and causing consumers to purchase less organically certified food from plaintiffs' members. However, FACA contains no provision for judicial review, and for that reason alone, this case should be dismissed for lack of subject matter jurisdiction. But the Court also lacks jurisdiction because plaintiff lack standing to bring their claims. As an initial matter, plaintiffs cannot establish the sort of concrete, particularized injury-in-fact required for Article III standing through their speculative contentions that their reputation might be impaired or that their members might suffer economic injury. Nor can plaintiff Cornucopia show injury simply because the Board's recommendations might produce a setback to Cornucopia's self-proclaimed mission of monitoring USDA's organic food standards. Plaintiffs lack standing for additional Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 10 of 40 2 reasons as well: they cannot establish that their alleged injuries were caused by the FACA violations of which they complain, and they cannot show that a favorable decision would redress the harms they purportedly have suffered. Plaintiffs also have no right to any appointment to the Board and therefore cannot assert procedural injury sufficient to confer standing. In addition, consistent with well-established principles of Administrative Procedure Act ("APA") adjudication, plaintiffs' claims are nonjusticiable because the Court has no meaningful standard against which to measure whether the Board is "fairly balanced" or has been "inappropriately influenced." Ultimately, plaintiffs take issue with the Board's recommendations and defendants' discretionary judgment about how best to design the advisory committee on which defendants rely. Federal courts, however, are ill-suited to substitute their judgment -- or to allow plaintiffs to do so -- for the considered policy choices of agency administrators. Accordingly, the Complaint should also be dismissed for failure to state a claim upon which relief can be granted. BACKGROUND I. THE FEDERAL ADVISORY COMMITTEE ACT Congress enacted FACA, 5 U.S.C. App. 2, "to monitor the numerous committees, boards, commissions, councils, and similar groups [that] have been established to advise officers and agencies in the executive branch of the Federal Government . . . and to prevent the wasteful expenditure of public funds that may result from their proliferation." Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 373 (2004). The statute seeks to eliminate committees that have outgrown their usefulness and impose uniform procedures on those that are indispensable. See 5 U.S.C. App. 2 § 2(b). FACA defines an "advisory committee" as "any committee, board, commission, council, conference, panel, task force, or other similar Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 11 of 40 3 group, or any subcommittee or other subgroup thereof" that is "established" by statute, or "established or utilized" by the President or by one or more agency, "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." Id. § 3(2). FACA imposes procedural requirements on the creation and operation of advisory committees. An advisory committee cannot meet or take any action until a detailed charter is filed with the head of the agency to which it reports and with the House and Senate committees having legislative jurisdiction over the agency. 5 U.S.C. App. 2 § 9(c).1 Every advisory committee must give advance notice in the Federal Register of any meetings, id. § 10(a)(2); hold all meetings open to the public, id. §§ 10(a)(1) & (d); keep detailed minutes of each meeting and copies of all reports received, issued, or approved by the advisory committee, id. § 10(c); and make its records available to the public for inspection and copying at a single location in accordance with the Freedom of Information Act, 5 U.S.C. § 552, 5 U.S.C. App. 2, § 10(b). Most pertinent here, advisory committees must be "fairly balanced in terms of the points of view represented and functions to be performed," 5 U.S.C. App. 2, § 5(b)(2), and the constituting agency must put in place "appropriate 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, but will instead be the result of the advisory 1 The charter must contain such information as "the committee's official designation," 5 U.S.C. App. 2, § 9(c)(A), the period of time necessary for the committee to carry out its purposes," id. § 9(c)(C), "a description of the duties for which the committee is responsible, and, if such duties are not solely advisory, a specification of the authority for such functions," id. § 9(c)(F), "the estimated annual operating costs in dollars and man-years for such committee," id. § 9(c)(G), "the estimated number and frequency of committee meetings," id. § 9(c)(H), and "the committee's termination date, if less than two years from the date of the committee's establishment," id. § 9(c)(I). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 12 of 40 4 committee's independent judgment." Id. § 5(b)(3). II. THE NATIONAL ORGANIC STANDARDS BOARD The advisory committee at issue in this case, the National Organic Standards Board was established pursuant to the Organic Foods Production Act of 1990, which was enacted by Congress in part to establish national standards governing the marketing of certain agricultural products as organically produced products. See Pub. L. No. 101-624, 104 Stat. 3935 (1990) (codified as amended at 7 U.S.C. §§ 6501-22). In order to be sold or labeled as "organic," a product must be produced and handled without the use of synthetic substances, except as otherwise provided in the Act. 7 U.S.C. §§ 6504, 6505, 6510, 6517. The Act authorizes the creation of the National Organic Program within USDA. Id. § 6503. The National Organic Program, which is administered by the Agricultural Marketing Service of USDA, is responsible for setting the national standards called for by the Act, see id. § 6504, and also oversees the certification process for organic production and handling, see id. § 6503(d). The Act directs the Secretary to "establish a National Organic Standards Board (in accordance with the Federal Advisory Committee Act) to assist in the development of standards for substances to be used in organic production and to advise the Secretary on any other aspects of the implementation" of the Act. 7 U.S.C. § 6518(a). The Board is composed of fifteen members appointed by the Secretary. 7 U.S.C. § 6518(b), (c). Of those fifteen members, (1) four shall be individuals who own or operate an organic farming operation; (2) two shall be individuals who own or operate an organic handling operation; (3) one shall be an individual who owns or operates a retail establishment with significant trade in organic products; Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 13 of 40 5 (4) three shall be individuals with expertise in areas of environmental protection and resource conservation; (5) three shall be individuals who represent public interest or consumer interest groups; (6) one shall be an individual with expertise in the fields of toxicology, ecology, or biochemistry; and (7) one shall be an individual who is a certifying agent as identified under . . . [7 U.S.C. § 6515]. Id. § 6518(b). The Secretary must make the appointments "from nominations received from organic certifying organizations, States, and other interested persons and organizations." Id. § 6518(c). Members of the Board serve staggered five-year terms, id. § 6518(d), without compensation, id. § 6518(f), and the Board selects its Chairperson, id. § 6518(g). "The Board shall provide recommendations to the Secretary regarding the implementation of [the Act]." 7 U.S.C. § 6518(k)(1). USDA sought nominees for the current Board through notices that describe the selection criteria and the purpose of the Board. See, e.g., "National Organic Standards Board (NOSB): Call for Nominations," 80 Fed. Reg. 19,059 (April 9, 2015); "National Organic Standards Board (NOSB): Notice of Intent to Renew Charter and Call for Nominations," 79 Fed. Reg. 13,982 (March 12, 2014); "Nominations for Members of the National Organic Standards Board," 77 Fed. Reg. 37,374 (June 21, 2012). III. PLAINTIFFS' CHALLENGE TO THE APPOINTMENT OF TWO BOARD MEMBERS The Complaint focuses on two Board members that plaintiffs find objectionable. The two members were appointed to fill two of the four positions reserved for "individuals who own or operate an organic farming operation." Complaint ¶¶ 76, 82; 7 U.S.C. § 6518(b)(1). Plaintiffs allege that the first, Carmela Beck, works as the National Organic Program Supervisor Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 14 of 40 6 and Organic Certification Grower Liaison for Driscoll's, a conventional and organic berry producer. Complaint ¶ 77. Plaintiffs contested Ms. Beck's appointment to the Board on grounds that Ms. Beck's work with Driscoll's was insufficient to qualify her as an owner or operator of an organic farming operation. Id. ¶ 80. Plaintiffs also challenge the appointment to the Board of Ashley Swaffar, who they allege had various responsibilities as an employee of the Arkansas Egg Company, a conventional and organic egg production company, and is currently employed by Vital Farms, a company that primarily contracts with independent farmers for production and markets both conventional and organic eggs. Id. ¶ 83. Plaintiffs contested Ms. Swaffar's appointment to the Board. Id. ¶ 85. Plaintiffs' objections to the appointment of Ms. Beck and Ms. Swaffar relate to their votes to recommend the retention of certain substances on the "National List," which the Secretary is required to establish pursuant to the Act. 7 U.S.C. § 6517(a); see also 7 C.F.R. §§ 205.601-205.606. The National List contains, inter alia, specific substances that are either (1) synthetic but permitted to be used in the production of organic products; or (2) non-synthetic (i.e., natural) but prohibited from use in organic products. 7 U.S.C. § 6517(a); see also 7 U.S.C § 6517(c)(1)-(2). For example, due to their presence on the National List, the synthetic substance ethanol may currently be used as an algicide in organic crop production, while strychnine, a non-synthetic substance, may not be used in organic crop production. 7 C.F.R. §§ 205.601(a)(1)(i), 205.602(h). The Act tasks the Board with "develop[ing] the proposed National List or proposed amendments to the National List for submission to the Secretary." 7 U.S.C. §§ 6518(k)(2), 6518(l). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 15 of 40 7 To remain on the National List, any exempted (synthetic) substance or prohibited (natural) substance must be, within five years of its initial adoption or subsequent review, both (1) reviewed by the Board, and (2) renewed by the Secretary. This requirement is set forth in the "Sunset provision," which provides that: No exemption or prohibition contained in the National List shall be valid unless the National Organic Standards Board has reviewed such exemption or prohibition as provided in this section within 5 years of such exemption or prohibition being adopted or reviewed and the Secretary has renewed such exemption or prohibition. Id. § 6517(e). A motion to remove a substance from the National List must receive two-thirds of the votes cast in order to pass.2 7 U.S.C. § 6518(i). Based on the Board's recommendation, USDA then may elect to renew substances that have undergone Sunset review, or remove them from the National List. 7 U.S.C. § 6517(e); see 78 Fed. Reg. at 56,814-15. 2 The Sunset Review process was changed in 2013. See National Organic Program-Sunset Process, 78 Fed. Reg. 56,811 (Sep. 16, 2013) ("Sunset Notice"). The renewal process set forth in the Sunset Notice superseded the preexisting renewal process. See National Organic Program, Sunset Review, 70 Fed. Reg. 35,177 (June 17, 2005). Under the preexisting renewal process, a synthetic substance lost its exemption (and thereby became automatically prohibited) after five years unless two thirds of the Board voted to recommend its retention on the List (and the Secretary chose to renew the exemption). Under the current Sunset Review process, a synthetic substance automatically retains its exemption (and thereby is automatically allowed to continue being used in an organic farming or handling operation) unless two thirds of the Board votes to recommend its removal from the List (and the Secretary chooses to adopt the recommendation). The current Sunset Review process was put into place in order to achieve consistency with the National List Petition Process, see "Notification of Sunset Process," 78 Fed. Reg. 56,811, 56,815 (Sept. 16, 2013), through which any individual or organization may petition the Board to have a substance "evaluated by the Board for recommendation to the Secretary for inclusion on or deletion from National List in accordance with the Act." 7 C.F.R. § 205.607(a); see also "Notice of Guidelines on Procedures for Submitting National List Petitions," 72 Fed. Reg. 2,167 (Jan. 18, 2007). A successful petition to remove a synthetic substance from the List would require a two-thirds vote of the Board. See 7 U.S.C. § 6518(i). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 16 of 40 8 Plaintiffs allege that during her term, Ms. Beck voted 177 times to retain a substance on the National List, when the other Board members representing owners and operators of organic farming operations voted to remove it. Complaint ¶ 79. Plaintiffs also allege that Ms. Swaffar voted 165 times to retain a substance on the National List when the other Board members representing owners and operators of organic farming operations voted to remove it. Id. ¶ 84. IV. THE ALLEGATIONS OF THE COMPLAINT Plaintiff Cornucopia is allegedly a public interest organization that "engages in research and education on agriculture and food issues," "focuses on assessing the integrity of organic food and agriculture," and "seeks to educate farmers, consumers, and the media about issues affecting the integrity of organic food standards." Complaint § 32. Plaintiffs Dominic Marchese and Rebecca Goodman are allegedly "family-scale certified organic farmer[s]" who each applied for and were denied an appointment to positions on the Board designated for individuals who own or operate an organic farming operation, whereas two allegedly "unqualified" applicants, Carmela Beck and Ashley Swaffar, were appointed. Id. §§ 46, 50. Plaintiffs allege that plaintiff Cornucopia has a "strong interest in the integrity of organic food standards, consumer confidence in those standards, and the interstate commerce of organic produce," and an "interest in ensuring that the NOSB remains fairly balanced and free of inappropriate influence." Id. ¶¶ 55, 56. Plaintiffs claim that defendants violated FACA in the following respects. First, they claim that as a result of the appointments of Ms. Beck and Ms. Swaffar, the Board was not fairly balanced in terms of membership and viewpoint, in violation of FACA, 5 U.S.C. App. 2 § 5(b)(2). Complaint ¶¶ 119, 123. Second, plaintiffs claim that defendants violated FACA's requirement that advisory committees be free from the inappropriate influence of the appointing Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 17 of 40 9 authority, 5 U.S.C. App. 2 § 5(b)(3), because, allegedly, (1) the deputy administrator of USDA's National Organic Program appointed himself co-chairperson of the Board, Complaint ¶¶ 17, 128; (2) USDA disbanded the Board's Policy Development Subcommittee ("Subcommittee"), thereby removing the mechanism by which the Board could independently and transparently develop the best practices to guide its activities, id. ¶¶ 16, 129; (3) USDA removed the Board's ability to develop its own work plan, undermining the Subcommittee's independence, id. ¶¶ 18, 130; and (4) USDA altered the Sunset Review rules without notice and comment, making it more difficult for chemicals to be removed from the National List or reviewed by the Board, id. ¶¶ 26, 131. Third, plaintiffs claim that through all of these actions, defendants violated FACA, 5 U.S.C. App. 2 § 5(c), by failing to comply with the guidelines established in 5 U.S.C. App. 2 § 5(b). Complaint ¶ 137. Plaintiffs also allege a violation of the Organic Foods Production Act. Specifically, plaintiffs claim that by appointing Ms. Beck and Ms. Swaffar to positions on the Board that are reserved for owners or operators of organic farming operations, USDA violated 7 U.S.C. § 6518(b)(1), because Ms. Beck and Ms. Swaffar allegedly did not own or operate an organic farming operation. Complaint ¶¶ 114, 117. Plaintiffs' claims of injury consist of the allegation that Cornucopia's board and farmer members suffer a "reputational harm" from USDA's actions "because the organic certification label becomes less trustworthy in the eyes of consumers and stakeholders due to actions by USDA that are perceived to be weakening organic integrity." Complaint ¶ 54. Cornucopia's members allegedly "suffer an economic harm because consumers seeking organic produce are less likely to purchase organically certified food when that organic label's integrity has been compromised." Id. ¶ 55. And Cornucopia's resources are allegedly drained from having to Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 18 of 40 10 review, in pursuit of its mission, a greater number of substances that now remain on the National List. Id. ¶¶ 26, 41. Finally, Cornucopia's members are allegedly harmed from having been denied the right to a fair process for appointment to the Board under the Organic Foods Production Act. Id. ¶ 45. Plaintiffs seek a declaration from the Court that USDA violated the Organic Foods Production Act by appointing unqualified persons to the Board; that it must appoint Board members who meet statutory requirements; and that USDA violated FACA by appointing unqualified persons, disbanding the Subcommittee, removing the Board's ability to develop its own work plan, and modifying the Sunset Review rules. Complaint, Prayer for Relief. Plaintiffs also ask the Court to vacate the appointments of Ms. Beck and Ms. Swaffar to the Board, and to order the removal of substances from the National List that have remained on the List since the modification of the Sunset Review rules, but that would have allegedly been removed under the old rules based on the votes they received. Id. ARGUMENT I. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF SUBJECT- MATTER JURISDICTION3 A. FACA Does Not Provide For A Private Right Of Action4 3 The party invoking the court's jurisdiction bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The "district court is not bound to accept as true the allegations of the complaint which tend to establish jurisdiction where a party properly raises a factual question concerning the jurisdiction of the district court to proceed with the action," such as "by moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), F.R.C.P." Grafton Corp. v. Hausermann, 602 F.2d 781, 783, and n.3 (7th Cir. 1979). 4 "[T]he existence of a private right of action . . . goes to the subject matter jurisdiction of the court." Sierra Club v. Hodel, 848 F.2d 1068, 1076 n.6 (10th Cir. 1988), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992); see also Baggett v. First Nat'l Bank of Gainsville, 117 F.3d 1342, 1345 (11th Cir. 1997) (noting that a private right of action is a jurisdictional prerequisite); see also Oldfield v. Athletic Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 19 of 40 11 The Complaint alleges that defendants violated FACA, but FACA does not provide for a private right of action, and hence the Complaint should be dismissed. A statute creates a private right of action only when it "displays an intent to create not just a private right but also a private remedy." Alexander v. Sandoval, 532 U.S. 275, 286 (2001). "Without [statutory intent], a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute." Id. at 286-87. As this Circuit has observed, Congress considered, but declined to include in FACA, a private right of action or provision for judicial review. See Mulqueeny v. Nat'l Comm'n on the Observance of Int'l Women's Year, 549 F.2d 1115, 1120 n.15 (7th Cir. 1977) (finding that the legislative history of FACA did not "manifest[] an intent, either express or implied, to create a right of enforcement in private citizens"); see also S. 2064, 92d Cong. 1st Sess. 16 (1971), reprinted in 117 Cong. Rec. 19,805 (1971); S. 1637, 92d Cong. 1st Sess. 11 (1971), reprinted in 117 Cong. Rec. 11,444 (1971). Other courts have agreed.5 See Colo. Envtl. Coalition v. Wenker, 353 F.3d 1221, 1234-35 (10th Cir. 2004) (noting that FACA contains no "private right of action for those seeking to enforce the procedural requirements attending the creation and operation of federal advisory committees"); Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 33 (D.D.C. 2011) (finding no basis for concluding that Congress intended "to confer in the FACA a private right Congress, 779 F.2d 505, 508 (9th Cir. 1985) (same). 5 In Cheney v. Dist. Ct. for the Dist. of Columbia, 542 U.S. at 374-75, the Court noted that "[t]he [district court] acknowledged FACA does not create a private cause of action. On this basis, it dismissed respondents' claims against the non-Government defendants." The district court's finding that FACA lacked a private right of action, and its subsequent dismissal of the private defendants, did not elicit any discussion from the Court. Though the precise issue was not before the Court, its treatment of the lower court's disposition bolsters the view that FACA does not supply a private right of action. See Int'l Brominated Solvents Ass'n v. Am. Conf. of Gov'tal Indus. Hygienists, 393 F. Supp. 2d 1362, 1377 (M.D. Ga. 2005). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 20 of 40 12 of action"); Int'l Brominated Solvents, 393 F. Supp. 2d at 1377-78 (finding that neither the text nor the structure of FACA "evinces a congressional intent to confer on private litigants a right to enforce that statute's requirements"). This Court should not read into FACA a cause of action that Congress has not expressly created, and the Complaint should be dismissed. B. Plaintiffs Lack Article III Standing Because FACA contains no provision for judicial review, the availability of judicial review (if any) for plaintiffs' FACA claims derives from the APA, 5 U.S.C. §§ 551, et seq. See Singh v. Moyer, 867 F.2d 1035, 1037 (7th Cir. 1989); Mulqueeny , 549 F.2d at 1120 & n.15. A litigant who asserts that he or she is "aggrieved by agency action" within the meaning of the APA, 5 U.S.C. § 702, see Complaint ¶ 58, must demonstrate standing to sue.6 See Mulqueeny, 549 F.2d at 1120-21; see also Raines v. Byrd, 521 U.S. 811, 818 (1997) ("No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.") (quoting Simon v. Eastern Ky.Welfare Rights Org., 426 U.S. 26, 37 (1976)); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). To establish standing, a plaintiff must make a three-part showing. Susan B. Anthony List v. Driehaus, __ U.S. __, 134 S. Ct. 2334, 2341 (2014); Lujan, 504 U.S. at 560-61; 6 Plaintiffs have not properly pled violations of the APA, see Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), although they are apparently aware of their obligation to do so: plaintiff Cornucopia is also a plaintiff in Center for Food Safety v. Vilsack, No. 3:15-cv- 01590-HSG (N.D. Cal. filed April 7, 2015), a suit alleging, inter alia, that USDA's issuance of the 2013 Sunset Notice referenced in this case, see Complaint ¶¶ 23, 131, violated the notice and comment rulemaking requirements of the APA. The complaint in Center for Food Safety was dismissed without prejudice for lack of standing, Center for Food Safety, No. 3:15-cv-01590- HSG, Order Granting Motion to Dismiss (ECF No. 49), and defendants' motion to dismiss the amended complaint is pending. The instant complaint seeks relief exclusively under FACA, so the APA rulemaking requirements are not at issue. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 21 of 40 13 Schirmer v. Nagoda, 621 F.3d 581, 585 (7th Cir. 2010). First, the plaintiff must show an "injury in fact" -- a harm that is both "'concrete and particularized and actual or imminent, not conjectural or hypothetical.'" Susan B. Anthony, 134 S. Ct. at 2341 (quoting Lujan, 504 U.S. at 560). Second, the plaintiff must establish "a sufficient 'causal connection between the injury and the conduct complained of.'" Susan B. Anthony, 134 S. Ct. at 2341 (quoting Lujan, 504 U.S. at 561). To do so, the plaintiff must show that the injury is "'fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.'" Lujan, 504 U.S. at 560 (quoting Simon, 426 U.S. at 41-42); accord Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 106 n.7 (1998). Third, the plaintiff must "demonstrate redressability - a 'substantial likelihood' that the requested relief will remedy the alleged injury in fact." Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 771 (2000) (quoting Simon, 426 U.S. at 45); see Lujan, 504 U.S. at 561.7 "The party invoking federal jurisdiction bears the burden of establishing standing." Susan B. Anthony, 134 S. Ct. at 2342. 1. Plaintiffs Fail to Show a Procedural Right Sufficient for Procedural Standing In support of their fair balance and inappropriate influence claims, plaintiffs have not demonstrated the existence of a procedural right under FACA that could support standing, such as the right to an appointment on the Board. The generalized "deprivation of a procedural right without some concrete interest that is affected by the deprivation - a procedural right in vacuo - is insufficient to create Article III standing." Summers v. Earth Island Inst., 555 U.S. 488, 7 An association may have standing to bring suit on behalf of its members, but only if the members "would otherwise have standing to sue in their own right." Hunt v. Wash. State Apple Advertising Comm'n., 432 U.S. 333, 343 (1977). Plaintiff Cornucopia's allegations of standing on behalf of its members suffer from the same fatal flaws as its allegations in its own right. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 22 of 40 14 496 (2009); Bensman v. U.S. Forest Serv., 408 F.3d 945, 952 (7th Cir. 2005) ("The Supreme Court made clear in Lujan that, unless the denial of a procedural right endangered a separate substantive right of the plaintiff, a plaintiff may not invoke the federal judicial power to vindicate the denial of that procedural right . . . ."); see also In Re Endangered Species Act Section 4 Deadline Litigation - MDL No. 2165, 704 F.3d 972, 977 (D.C. Cir. 2013) ("An individual can enforce his procedural rights so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.") (quoting Lujan, 504 U.S. at 573 n.8). The Secretary has statutory authority under FACA to establish advisory committees and appoint committee members. 5 U.S.C. Appendix 2, § 8; see also 7 U.S.C. § 6518(c) (stating that "the Secretary shall appoint the members of the Board"). Plaintiffs cannot claim a right under § 5 of FACA to a committee appointment, or to the appointment of individuals who share their particular views. See Ass'n of Am. Physicians and Surgeons, Inc. v. U.S. Dep't of Health and Human Servs., Civ. Action No. 06-0319 (ESH), 2006 WL 2882707, at *5 (D.D.C. 2006) ("While FACA provides that advisory committees are 'to be fairly balanced in terms of points of view represented and the functions to be performed by the advisory committee[,]' see 5 U.S.C. app. 2, § 5(b)(2), nothing in this requirements suggests an intent to secure the concrete interests of all groups who can assert a stake in a committee's deliberations."); see also Ctr. for Law and Educ. v. Dep't of Educ., 315 F. Supp. 2d 15, 24 n.7, 27 (D.D.C. 2004) (Neither advocacy groups nor individual had standing to challenge composition of committee because No Child Left Behind Act did not confer a "procedural right to representation on the negotiated rulemaking committee" or "an enforceable right to have the [rulemaking] committee constituted a certain way.") aff'd, 396 F.3d 1152 (D.C. Cir. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 23 of 40 15 2005); Sanchez v. Pena, 17 F. Supp. 2d 1235, 1237 (D.N.M. 1998) (finding that plaintiffs had "failed to allege a distinct and palpable legally-cognizable injury to themselves that resulted from their exclusion from [Board] membership"). Moreover, the "purely 'advisory' function of FACA committees" undermines any suggestion of a "protective design" intended to secure a concrete interest. Ass'n of Am. Physicians, 2006 WL 2882707, at *5. Similarly, FACA does not confer any procedural rights upon plaintiffs in connection with the appointment of the Board's chairperson,8 the existence of subcommittees,9 the Board's development of a work plan, or USDA's actions regarding the Sunset Review rules. See Complaint ¶¶ 128-131. Nor can plaintiffs claim any procedural rights under the Organic Foods Production Act, see Complaint ¶ 45, since it merely directs that the Secretary shall establish the Board "in accordance with the Federal Advisory Committee Act," 7 U.S.C. § 6518(a). Hence, 8 Plaintiffs claim that Miles McEvoy unilaterally appointed himself co-chair of the Board at the April 29, 2014 Board meeting. Complaint ¶¶ 17, 104. Plaintiffs are apparently referring to the fact that Mr. McEvoy, the Deputy Administrator of the National Organic Program, simply "opened" the spring 2014 Board meeting and made some introductory remarks. Transcript, April 29, 2014 Meeting of the National Organic Standards Board ("Transcript"), at 4, 17, https://www.ams.usda.gov/sites/default/files/media/transcripttx.pdf . The Chairperson of the Board was Robert "Mac" Stone. Id. at 1. As the Designated Federal Officer for the National Organic Standards Board, Mr. McEvoy was authorized to chair the meeting and open Board meetings. See National Organic Standards Board Policy and Procedures Manual, at Appendix C ("Duties of the Designated Federal Officer") (April 11, 2012) ("The Designated Federal Officer assigned to the National Organic Standards Board . . . is the National Organic Program's Program Director. The Program Director . . . [m]ust approve or call the meeting of the NOSB . . . and . . . [c]hairs the meeting when directed by the Secretary of Agriculture or the Secretary's designee."); Transcript at 8-9. Plaintiffs are aware of this fact. See http://www.cornucopia.org/wp- content/uploads/2016/04/2016_NOSBPolicyProcedures_Comments.pdf, at 102. After his introductory remarks, Mr. McEvoy turned over the meeting to Chairperson Stone. Transcript at 24 ll. 15-16. 9 FACA's implementing regulations make clear that plaintiffs have no procedural right to challenge USDA's decisions with respect to subcommittees, which are created and operated under USDA's auspices. See 41 C.F.R. § 102-3.35 (stating that "[t]he creation and operation of subcommittees must be approved by the agency establishing the parent advisory committee"). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 24 of 40 16 the procedural injury alleged by plaintiffs is not sufficient to establish standing. 2. Plaintiffs' Alleged Injuries Are Speculative Plaintiffs' alleged injuries are entirely speculative. Rather than meeting the essential standing requirement of a concrete injury, plaintiffs rest their claims on a theory that USDA's two appointments to the Board left it unbalanced, Complaint ¶¶ 11, 123, and that USDA's alleged actions in disbanding the Subcommittee, allowing the self-appointment of the Board's co-chairperson, removing the Board's ability to set its own work plan, and changing the Sunset Review rules, inappropriately influenced the Board. Id. ¶¶ 15-19, 26, 127-131. According to plaintiffs, the result has been a "perceived . . . weakening of organic integrity," which has allegedly damaged Cornucopia's reputation, and which has caused consumers to be "less likely to purchase organically certified food," thereby causing unspecified "economic harm" to Cornucopia's members. Id. ¶¶ 54-55. These types of hypothetical injury, based on a long and tenuous chain of possibilities, are insufficient to establish standing. See Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1148 (2013) (rejecting theory of standing that "relies on a highly attenuated chain of possibilities"); Ass'n of Am. Physicians and Surgeons, Inc. v. Koskinen, No. 13-C-1214, 2014 WL 1056495, at *7 (E.D. Wisc. 2014) (finding that "[e]ach link of Plaintiffs' causal chain is tenuous, and in combination, the allegations fail to establish an injury that is 'imminent' or 'certainly impending.'"), aff'd, 768 F.3d 640 (7th Cir. 2014). In an analogous situation in Metcalf v. Nat’l Petroleum Council, 553 F.2d 176 (D.C. Cir. 1977), the court rejected the standing of consumer and citizen plaintiffs to challenge under FACA the composition of the National Petroleum Council ("NPC"), a committee established to render advice on oil and gas matters. Plaintiffs claimed injury on the ground that "the challenged structure of the NPC causes it to make certain biased recommendations, which in Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 25 of 40 17 turn cause government agencies to adopt policies favoring the petroleum industry, which in turn cause [plaintiffs] to be injured as consumers and citizens." Metcalf, 553 F.2d at 185. In rejecting these claims, the court held that "the basic constitutional threshold of injury in fact has not been satisfied" because the "occurrence of the asserted harm is speculative and conjectural in the purest sense." Id. at 186 (emphasis in original). Plaintiffs' allegations do no more to establish imminent injury than did the insufficient claims of the plaintiffs in Metcalf. Here, plaintiffs claim injury on grounds that because two allegedly unqualified members were appointed to the fifteen-member Board, and because USDA disbanded a subcommittee, allowed a co-chairperson to be self-appointed, removed the Board's ability to set its own work plan, and changed the Sunset Review rules, Complaint ¶¶ 16-18, 51, 111, the Board is now voting to recommend that the Secretary allow a greater number of harmful synthetic substances to remain on the National List, id. ¶¶ 38-39.10 The alleged effect has been to "undermine[] the integrity of organic food standards," id. ¶¶ 52-53, which has in turn caused reputational and economic harm to plaintiffs, id. ¶¶ 54-55. Plaintiffs' alleged injuries are speculative and conjectural in the purest sense, and do not demonstrate injury in fact.11 See Reid v. Ill. State Bd. of Educ., 358 F.3d 511, 514 (7th Cir. 2004) (finding 10 Plaintiffs also allege that the Board consequently changed its voting procedures from a roll call to a show of hands, Complaint ¶¶ 106-107, thereby allegedly making it more difficult for Cornucopia's members to track and share voting information, id. ¶ 108. Aside from the fact that the connection between the new voting procedures and Cornucopia's alleged reputational harm or its members' alleged economic harm is indiscernible, this claim is itself questionable given that "[e]ach advisory committee meeting shall be open to the public," 5 U.S.C. App. 2, § 10(a)(1), and each committee must keep a detailed record of each meeting, id. § 10(c). 11 Simply because plaintiffs couch their claims of harm in the present tense, see Complaint ¶ 54 (alleging that Cornucopia's board and farmer members "suffer" a reputational harm); id. ¶ 55 (alleging that Cornucopia's members "suffer" an economic harm), does not prevent them from being speculative. The Court "must distinguish between allegations of fact, which are entitled to a presumption of truth, and unfounded speculation, which is not entitled to such a presumption." Koskinen, 2014 WL 1056495, at *4; see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 26 of 40 18 that claims which were "entirely speculative . . . do not demonstrate an injury in fact"); see also Turlock Irrigation Dist. v. F.E.R.C., 786 F.3d 18, 24 (D.C. Cir. 2015) ("This theory stacks speculation upon hypothetical upon speculation, which does not establish an 'actual or imminent' injury."); R.J. Reynolds Tobacco Co. v. FDA, 810 F.3d 827, 830 (D.C. Cir. 2016) ("Even if we were to assume arguendo that the FDA's selection of these committee members materially increased the risk of its adoption of a rule more adverse to plaintiffs than the rule it might otherwise have adopted . . . that would still fall short of saying that the selection rendered adoption of a more adverse rule imminent."); Sanchez v. Pena, 17 F. Supp. 2d at 1237 (holding alleged future harm arising from domination by advisory committee members who might be unwilling to raise the same issues that plaintiffs would raise was "speculative and conjectural in the purest sense"). At its core, plaintiffs' claim to standing is predicated on the allegation that "farmers and producers of organic foods have an interest in ensuring the integrity of USDA's standards," Complaint ¶ 9, and that the "American people have a right to trust" that certified organic food comports with the Act, id. ¶ 10. These allegations are far from the concrete and particularized injury required under Article III. Indeed, plaintiffs' challenge to USDA's actions alleges nothing more than a "setback to [plaintiffs'] abstract social interests" in their speculative (and unilaterally imposed) notion of an appropriate measure of organic integrity. Ass'n of Am. Physicians, 2006 WL 2882707, at *9 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). However, a "'mere interest' in the resolution of an issue, no matter how compelling, no matter how vigorously and vocally expressed, is of itself inadequate as a substitute for the Article III requirement that a litigant demonstrate personal, concrete injury." (1990) ("It is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings . . . but rather must affirmatively appear in the record."); N.J. Physicians, Inc. v. President of the U.S., 653 F.3d 234, 239 (3rd Cir. 2011) (same). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 27 of 40 19 Mulqueeny, 549 F.2d at 1121 (citing Sierra Club v. Morton, 404 U.S. 727, 739 (1972)); see also Summers, 555 U.S. at 493-94 (noting that where the challenged regulations "neither require not forbid any action" on the part of the respondents, generalized harm will not alone support standing.); Diamond v. Charles, 476 U.S. 54, 66-67 (1986) (dismissing claim on standing grounds because plaintiff had only mere interest in problem, not direct stake in outcome). Nor does the fact that Cornucopia has expended resources "in pursuit of its mission," Complaint ¶ 41, establish an injury in fact. See Turlock, 786 F.3d at 24 ("[T]he expenditure of resources on advocacy is not a cognizable Article III injury."); Center for Law and Educ., 396 F.3d 1161-62 ("[C]onflict between a defendant's conduct and an organization's mission is alone insufficient to establish Article III standing."); Center for Law and Educ., 315 F. Supp. 2d at 24 ("Without concrete and demonstrable injury to the groups' activities . . . evidence of a drain on the organization resources does not amount to an injury-in-fact for standing purposes."). Even if this speculative injury were cognizable, diminished organic integrity-assuming such a thing could be properly measured-is an undifferentiated harm to the public generally that is not specific to plaintiff or its members. See, e.g., Complaint ¶ 19 (Board was "hostile to the public interests"); id. ¶ 54 (organic certification label was "less trustworthy in the eyes of consumers"). The Supreme Court has made clear that this type of generalized harm is not adequate to establish Article III standing. Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Koskinen, 2014 WL 1056495, at *8 (same). This case must therefore be dismissed for lack of standing. 3. Plaintiffs' Claimed Injury Is Not "Fairly Traceable" To The Alleged FACA Violation. To the extent plaintiffs have suffered any injury, they have failed to establish that the Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 28 of 40 20 injury is traceable to the alleged FACA violations. Their claims presume that their reputational and economic harm would not have occurred, and would be less likely to re-occur, if only the two individual plaintiffs had been appointed to the Board instead of Ms. Beck and Ms. Swaffar, see Complaint ¶¶ 78, 84, or if only USDA had not allegedly disbanded the Subcommittee, allowed for the self-appointment of the Board's co-chairperson, removed the Board's ability to set its own work plan, or changed the Sunset Review rules, see id. ¶¶ 16-18, 26. But these claims are speculative and rely on the decisions and actions of numerous third parties. See Koskinen, 2014 WL 156495, at *8. For example, plaintiffs assume that if plaintiffs Goodman and Marchese had been appointed, (1) the fifteen-member Board would have voted so as to recommend allowing more synthetic substances be removed from the National List, see 7 U.S.C. § 6518(i); (2) the Secretary would have elected to adopt those recommendations, see 7 U.S.C. § 6518(k)(1) ("The Board shall provide recommendations to the Secretary . . . .") (emphasis added); 5 U.S.C. Appendix 2, § 9(b) ("[A]dvisory committees shall be utilized solely for advisory functions."); see Complaint ¶ 15; (3) consumers would then not have "perceived" organic integrity to be weakening, see Complaint ¶ 54; (4) plaintiffs' reputation would therefore not have been harmed, see id. ¶ 54; (5) consumers would not have been deterred from purchasing organically certified food, see id. ¶ 55; and (6) plaintiffs' members would therefore not have suffered "economic harm," see id. ¶ 55. Plaintiffs similarly assume that this chain of eventualities would have occurred if, allegedly, the Subcommittee had not been disbanded, if the Board's co-chairperson had not been self-appointed, if the Board could set its own work plan, or if the Sunset Review rules had not been changed. But "[t]he Seventh Circuit has routinely found that such speculative claims do not Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 29 of 40 21 satisfy the requirements of Article III standing." Koskinen, 2014 WL 1056495, at *7; see Shakeman v. Dunne, 829 F.2d 1387, 1397 (7th Cir. 1987) (finding the line of causation between the defendant's actions and the plaintiff's claim particularly attenuated because it depended upon "countless individual decisions" of third parties); Credit Union Nat'l Ass'n, Inc. v. Am. Inst. of Certified Pub. Accountants, Inc., 832 F.2d 104, 106-07 (7th Cir. 1987) ("There are so many links, each problematic, that it is impossible to trace concrete injury to the [defendant's actions]."); see also R.J. Reynolds, 810 F.3d at 831 ("[W]e are relatively hesitant to find standing when the asserted injury depends on the unfettered choices made by independent actors not before the courts.") (quoting Lujan, 504 U.S. at 562); Koskinen, 768 F.3d at 642 ("To allow a long, intermediated chain of effects to establish standing is to abolish the standing requirement as a practical matter . . . ."). In light of the chain of required contingencies and influences of outside forces that allegedly resulted in plaintiffs' reputational and economic harm, plaintiffs' injury is not fairly traceable to defendants' actions. To the extent plaintiff Cornucopia chooses to expend additional resources on challenging the National List, Complaint ¶ 41, their injuries are "self-inflicted" and therefore "not fairly traceable to the Government's purported activities" either. See Clapper, 133 S. Ct. at 1153. Defendants' actions do not compel Cornucopia to intensify its challenges to the National List. See id. (Plaintiffs cannot establish standing "simply by claiming that they experienced a 'chilling effect' that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part."); see also Koskinen, 2014 WL 1056495, at *7 (Actions "contributing to [plaintiffs'] own injury" do not establish standing.). It cannot reasonably be assumed that if the Board had been constituted as plaintiffs wish, or if defendants' other alleged actions had not occurred, the Board would necessarily have acted so as to remove substances on Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 30 of 40 22 the National List that plaintiffs find objectionable. See Complaint ¶¶ 91-92. The causal chain allegedly leading to an alleged drain on plaintiffs' resources because of the number of chemicals on the National List that plaintiffs have "to review and report on in pursuit of its mission," id. ¶ 41, is therefore not fairly traceable to defendants' conduct. See Center for Law and Educ., 396 F.3d at 1161-1162 (Where federal rules allegedly forced organizations "to change their lobbying strategies" to a more costly form of lobbying, the causal chain "fail[ed] to bind the challenged conduct to actual injury."). 4. Plaintiff's Alleged "Fair Balance" Injury Cannot Be Redressed By Judicial Relief Plaintiffs' claims against the Board's "balance" and USDA's "inappropriate influence" also fail the redressability prong of standing. An injury is redressable by the court only if there is "a likelihood that the injury can be redressed by a favorable decision." Perry v. Sheahan, 222 F.3d 309, 314 (7th Cir. 2000). Hence, "[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement." Steel Co., 523 U.S. at 107. While the Court could order the Secretary to replace Ms. Beck and Ms. Swaffar with Ms. Goodman and Mr. Marchese, reinstate the Subcommittee, allow the Board develop its own work plan, and change the Sunset Review rules, there is no guarantee that the Board will vote on the National List consistently with plaintiffs' wishes or that the Secretary will adopt the Board's recommendations. See Ass'n of Am. Physicians, 2006 WL 2882707, at *8 (noting that "there is no reason to believe" that a reconstituted committee purged of the allegedly inadequate members would offer different advice to the agency). Hence, it is no more than conjecture that the Court's declaratory and injunctive relief would alter the perceptions of consumers, rehabilitate Cornucopia's allegedly damaged reputation, and stimulate consumer Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 31 of 40 23 purchases of organically certified food from plaintiffs' members. Plaintiffs' "reliance on merely the remote possibility, unsubstantiated by allegations of fact, that their situation might (be) better had [defendants] acted otherwise, and might improve were the court to afford relief . . . is insufficient to assure that plaintiffs would realize a benefit from judicial intervention." Mulqueeny, 549 F.3d at 1121-22 (quoting Warth, 422 U.S. at 507). Plaintiffs' alleged injuries are therefore not redressable, and this case should be dismissed for lack of subject matter jurisdiction. II. THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE PLAINTIFFS' "FAIR BALANCE" AND "INAPPROPRIATE INFLUENCE"CLAIMS ARE NONJUSTICIABLE12 A. Plaintiffs' "Fair Balance" Challenge Fails Because The Board Complies With The Composition Requirements Of The Organic Foods Production Act, And There Is No Meaningful Standard To Apply Even if plaintiffs could establish that they have standing to assert their fair balance claim, the claim would still fail because the Board complies with Organic Foods Production Act's membership provisions, which ensure that the Board is "fairly balanced" in accordance with FACA's requirements. The Act explicitly addresses the membership composition of Board, specifying which segments of society the Board members should represent, see 7 U.S.C. § 6518(b), and it therefore satisfies the guidelines FACA imposes on all legislation establishing an advisory committee, 5 U.S.C. App. 2 § 5(b). Because the Board complies with the Act's membership requirements, it is "fairly balanced" under FACA. 12 In a challenge to an unreviewable agency decision, the issue "is not termed properly one of jurisdiction: This is not a question of whether this court has the authority to review, but rather whether the lack of any 'judicially manageable' standard, Heckler, 470 U.S. at 830 . . . makes any review within our power, as a practical matter, impossible." Vahora v. Holder, 626 F.3d 907, 917 (7th Cir. 2010). Dismissal is therefore proper under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, rather than under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction. See DeLuca v. Lariva, 586 Fed. Appx. 239, 241 (Mem.) (7th Cir. 2014). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 32 of 40 24 Moreover, Congress specified the committee's membership to include four individuals who "own or operate" an organic farming operation. 7 U.S.C. § 6518(b)(1). Ms. Beck and Ms. Swaffar fall into this category, and plaintiffs have not alleged any facts indicating otherwise. Ms. Beck is allegedly the National Organic Program Supervisor and Organic Certification Grower Liaison for a conventional and organic berry producer. Complaint ¶ 77. Ms. Swaffar allegedly worked for a conventional and organic egg production company, where she was responsible for financial planning, developing new products and customers, industry relations, growth planning, government relations and compliance, and animal welfare program development and compliance. Id. ¶ 83. She also facilitates organic system plan development and compliance, and is currently employed by another company that primarily contracts with independent farmers for production, and markets both conventional and organic eggs. Id. See Sanchez v. Pena, 17 F. Supp. 2d at 1238 (declining to take jurisdiction over the question whether advisory committee was "imbalanced" where plaintiffs had not alleged any facts indicating that currently appointed member did not meet qualification requirements). For the Court to second-guess the appointment of these individuals would require it to oversee the agency's appointment process, to question the views of individual committee members, and to develop and mandate a standard for committee balance that is undefined in the law or in the Complaint. Because FACA contains no provision for judicial review, the availability of judicial review (if any) for plaintiff's FACA claims derives from the APA, 5 U.S.C. §§ 551, et seq. See Singh v. Moyer, 867 F.2d at 1037; Mulqueeny, 549 F.2d at 1120 & n.15. The APA excludes from judicial review any "agency action [that] is committed to agency discretion by law." 5 U.S.C. § 701(a)(2); see Singh v. Moyer, 867 F.2d at 1037. The "committed to agency discretion by law" exception precludes judicial review if a Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 33 of 40 25 statute "is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830 (1985); see also Webster v. Doe, 486 U.S. 592, 599-600 (1988). That is, judicial review is not available under the APA if a statute is "'drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 752 (1945)). FACA's "fairly balanced" provision is such a statute. Congress did not define "fairly balanced," nor did it specify how a "fairly balanced" membership on an advisory committee is to be achieved, in terms of either the type of representatives or their number. Although FACA requires that the "membership of the advisory committee [ ] be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee," 5 U.S.C. App. 2 § 5(b)(1), this Court has no meaningful standard by which to measure whether that requirement has been met.13 See National Anti-Hunger Coalition v. Exec. Com. of the President's Private Sector Survey on Cost Control, 557 F. Supp. 524, 530 (D.D.C. 1983) (FACA, 13 FACA's legislative history similarly provides no guidance. The report of the House Committee on Government Operations notes why §§ 5(b)(2) and 5 (b)(3) were added to FACA, explaining its view that "[o]ne of the great dangers in the unregulated use of advisory committees is that special interest groups may use their membership on such bodies to promote their private concerns," and that "[t]estimony received at hearings before the Legal and Monetary Affairs Subcommittee pointed out the danger of allowing special interest groups to exercise undue influence upon the Government through the dominance of advisory committees which deal with matters in which they have vested interests." H.R. Rep. No. 92-1017, at 6 (1972). But the report does not supply any standard for the Court to apply to determine if an advisory committee is fairly balanced (or if a special interest has exerted improper influence on an advisory committee). Nor does an earlier House Committee on Government Operations Report, which offered that "[t]he members and staff on an advisory group need also to be free from vested interests and obligations that would impair the judgments and decisions of the committee. They must be able to examine programs in a fresh and critical way and reach conclusions that agencies might not." H.R. Rep. No. 91-1731, at 18 (1970). The Conference Report, see H.R. Rep. No. 92-1403 (1972) (Conf. Rep.), and the Senate Report, see S. Rep. No. 92-1098, at 10 (1972), say nothing at all relevant to the present topic. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 34 of 40 26 although well-intentioned, is "another example of unimpressive legislative drafting. It is obscure, imprecise, and open to interpretations so broad that in the present context . . . it would threaten to impinge unduly upon prerogatives preserved by the separation of powers doctrine . . . The Act leaves a myriad of questions unanswered, especially concerning the extent to which Congress intended to interfere with the President's formulation of policy."). As an initial matter, "even before the points of view on an advisory committee can be balanced at all - 'fairly' or otherwise - it must first be determined which points of view should be balanced." Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 886 F.2d 419, 426 (D.C. Cir. 1989) (Silberman, J., concurring).14 And there is no "principled basis for a federal court to determine which among the myriad points of view deserve representation on particular advisory committees." Id. The "relevant points of view on issues to be considered by an advisory committee are virtually infinite." Id.; Doe v. Shalala, 862 F. Supp. 1421, 1430 (D. Md. 1994) ("For the Court to become entangled in determining which viewpoints must be represented is for the Court to arbitrarily substitute its judgment for that of the agency."); Public Citizen v. Dep't of Health and Human Servs., 795 F. Supp. 1212, 1221 (D.D.C. 1992) (same). There is similarly no "principled way" to determine whether those views are fairly balanced. Microbiological, 886 F.2d at 428. Such a determination would require the court to make "arbitrary judgments" about "which organizations or individuals qualified as bona fide" representatives of particular policy views. Id. at 428-29; see also Fertilizer Inst. v. EPA, 938 F. Supp. 52, 54 (D.D.C. 1996) (finding the "fair balanced" provision nonjusticiable because it 14 As indicated below in this section, Judge Silberman's concurrence in Microbiological, 886 F.2d at 426, that "fairly balanced" claims under 7 U.S.C. App. 2, § 5(b)(2), are nonjusticiable has been widely relied upon. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 35 of 40 27 would raise "difficult questions" such as, "What qualifications must someone have in order to be deemed an adequate representative of the chemical producers? What if there is a diversity of views among different chemical producers - whose views would then represent the industry?").15 And even if Congress intended that there be judicial review of agency compliance with the "fairly balanced" requirement, such review would be constitutionally suspect since Congress may not constitutionally confer on the judiciary the power to make policy choices unguided by statutory standards. Microbiological, 886 F.2d at 430 n.6; cf. Metcalf, 553 F.2d at 190 ("[T]o supervise the membership . . . of federal advisory committees on a continual basis and to alter the composition of these committees according to our subjective determinations as to 'fair balance'" would place the court in the "[inappropriate] role as the 'continuing monitors of the wisdom and soundness of Executive action.'"). The weight of authority has likewise concluded that "fairly balanced" claims under § 5(b)(2) of FACA, 5 U.S.C. App. 2, are nonjusticiable. See Nat'l Parks Conservation Ass'n v. U.S. Dep't of Interior, No. 2:11-CV-578-FTM-29, 2012 WL 3589804, at *8-9 (M.D. Fla. Apr. 12, 2012) ("[T]here is no indication from the provisions of the Organic Act, [or] FACA, that there is a meaningful standard to apply when considering whether the Secretary complied with the 'fairly balanced' requirement imposed by FACA."); see also id. (citing Microbiological, 886 F.2d at 426-30); Sanchez v. Pena, 17 F. Supp. 2d at 1238 ("[T]he task of creating a 'fair balance' 15 While plaintiffs contend that Ms. Beck and Ms. Swaffar "lack the qualifications to duly represent the interests of organic farmers," Complaint ¶ 44, nothing in the Act defines what constitutes the "ownership" or "operation" of an organic farming operation in accordance with 7 U.S.C. § 6518(b)(1). Because "a court would have no meaningful standard against which to judge the agency's exercise of discretion," Heckler v. Chaney, 470 U.S. at 830, in determining who qualifies as an "owner" or "operator" of an organic farming operation, plaintiffs' claim that the appointment of Ms. Beck and Ms. Swaffar violates the Organic Foods Production Act, Complaint ¶¶ 113-117, is also nonjusticiable. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 36 of 40 28 in a board created pursuant to the FACA is a political one left to the discretion of the agency by statute and, under the alleged facts of this case, is not a justiciable issue."); Fertilizer Inst. v. U.S. EPA, 938 F. Supp. at 54-55 (declining to substitute the court's judgment for that of the agency with respect to the qualifications of appointee to the federal advisory committee, and stating, "For the Court to become entangled in determining what represents a 'fair balance' would require the Court to arbitrarily substitute its judgment for that of the agency. No meaningful standards are available to assist the Court in making such determinations.") (quoting Microbiological, 886 F.2d at 426); Doe v. Shalala, 862 F. Supp. at 1430 ("The balance of judicial opinion holds that, by reason of the lack of judicial standards to address alleged 'imbalances' of membership on such committees, Courts will not decide the issue; it is non-justiciable.") (citing Microbiological, 886 F.2d at 425); Public Citizen v. Dep't of Health and Human Servs., 795 F. Supp.at 1220-21 ("For the Court to become entangled in determining which viewpoints must be represented is for the Court to arbitrarily substitute its judgment for that of the agency. No meaningful standards are available to assist the Court in making such political and ideological determinations.") (citing Microbiological, 886 F.2d at 426). There are no standards here for the Court to apply concerning the appropriate "balance" of the Board. Accordingly, the issues are not justiciable. B. Plaintiffs' "Inappropriate Influence" Challenge Fails Because There Is No Meaningful Standard To Apply Plaintiffs' claim that USDA has "inappropriately influenced" the Board in violation of 5 U.S.C. App. 2, § 5(b)(3), is also not reviewable. See Complaint ¶¶ 125-133. Section 5(b)(3) requires that legislation establishing advisory committees contain 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, but will instead be the result of the advisory committee's independent judgment." 5 U.S.C. App. 2, § 5(b)(3). Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 37 of 40 29 A court must be able to determine when a special interest (or the appointing authority) has exerted "inappropriate influence." Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1231 (10th Cir. 2004) (per curiam). At issue in Wenker were federal regulations requiring the Secretary of the Interior to create Resource Advisory Councils ("RACs") to make recommendations regarding federal land use policy. Id. at 1223-24. Applying Heckler v. Chaney, 470 U.S. at 830 ("[R]eview is not to be had if the statute is drawn so a court would have no meaningful standards against which to judge the agency's exercise of discretion."), the court found no meaningful standard of review. Wenker, 353 F.3d at 1231. The court explained that "[t]he problem we have with this claim centers on the word 'inappropriate,'" given that the applicable statute and the relevant regulations had "call[ed] for various special interest groups to recommend candidates for appointment to the RACs" and that "[i]t goes without saying that the special interests will recommend nominees who agree with their point of view." Id. Consequently, the question became: "what does § 5(b)(1)-(3) mean when it prohibits only 'inappropriate' influence?" Id. The court concluded that "[t]he statute does not give us any guidance as to when the line is crossed between appropriate and inappropriate influence." Id.; see also Microbiological Criteria, 886 F.2d at 431 (asking, "[W]hat legally discernible principles could be employed to determine when a particular special interest is overly represented-when its influence is 'inappropriate?'") (Silberman, J., concurring). This Court has no meaningful standard against which to determine whether the Board has been inappropriately influenced, and FACA does not provide such a standard. See Center for Policy Analysis on Trade and Health v. Office of the U.S. Trade Representative, 540 F.3d 940, 945 (9th Cir. 2008); Wenker, 353 F.3d at 1231; see also 41 C.F.R. Part 102-3. Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 38 of 40 30 Furthermore, the Organic Foods Production Act makes no mention of any provisions that must be put in place to ensure that the Board is not inappropriately influenced by special interests, despite its otherwise detailed specifications regarding many other aspects of the Board. See, e.g., 7 U.S.C. § 6518(a) (establishment of the Board); id. § 6518(b) (composition of the Board); id. § 6518(c) (Secretary's appointment of members from nominations by interested entities); id. § 6518(d) (term of appointment); id. § 6518(e) (convening of meetings); id. § 6518(f) (compensation and expenses); id. § 6518(g) (selection of a Chairperson); id. § 6518(h) (what constitutes a quorum); id. § 6518(i) (votes needed to decide a motion); id. § 6518(j) (hiring of staff and payment of necessary expenses); id. § 6518(k) (the responsibilities of the Board); id. § 6518(l) (requirements regarding the National List); id. § 6518(m) (evaluation of substances on the National List); id. § 6518(n) (procedures for petitions regarding the National List); id. § 6518(o) (confidentiality). The Act's implementing regulations, 7 C.F.R. Part 205, are likewise silent as to how inappropriate influence is to be checked. Therefore, no standards exist for determining whether the alleged appointment of Ms. Beck and Ms. Swaffar, deputy administrator's self-appointment as co-chairperson of the Board, USDA's disbanding of a subcommittee, USDA's removal of the Board's ability to develop its own work plan, or USDA's alteration of the Sunset Review rules, see Complaint ¶¶ 12, 16-18, 26, 128-131, constitutes "inappropriate influence" over the Board. It would be of no moment if plaintiffs were able to craft a standard that they believe to be wise and reasonable. What is important is that neither statute, nor any regulations, sets forth a standard for the Court to use in answering such questions as what constitutes a special interest, when influence becomes inappropriate, and what sorts of steps must be taken to prevent special interests from exerting inappropriate influence. Resort to any other authority Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 39 of 40 31 would amount to the Court "mak[ing] a policy judgment, and an arbitrary one at that, as to the optimum character of the Advisory Committee," Microbiological, 886 F.2d at 431, which is an "uttterly nonjudicial task," id. at 427. For that reason, plaintiffs' claim that defendants have violated § 5 (b)(3) is nonjusticiable and should be dismissed. CONCLUSION For the foregoing reasons, the complaint should be dismissed. Dated: Aug. 15, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOHN W. VAUDREUIL United States Attorney RICHARD J. HUMPHREY Assistant United States Attorney /s/ Lisa A. Olson ELIZABETH J. SHAPIRO LISA A. OLSON U.S. Department of Justice Civil Division 20 Mass. Ave., N.W., Room 7300 Washington, DC 20530 Telephone: (202) 514-5633 Telefacsimile: (202) 616-8470 Email: lisa.olson@usdoj.gov Counsel for Defendants Case: 3:16-cv-00246-wmc Document #: 13 Filed: 08/15/16 Page 40 of 40
