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Defendant's Attorney: Robert W. Ferguson, Attorney General of Washington, and Kelly
T. Wood, Assistant Attorney General, Washington State Attorney
General's Office

Description:

Boston, MA - Federal Advisory Committee Act lawyer represented Plaintiffs, Appellants with arguing that a directive issued by the EPA that prohibits EPA grant recipients -- who are mostly employed by universities and other nonprofit institutions -- from sitting on the EPA's twenty-two scientific advisory committees.

At the time the complaint was filed, the EPA had twentytwo advisory committees, nine of which are established by statute.
Those nine include the Clean Air Scientific Advisory Committee
("CASAC"), see 42 U.S.C. § 7409(d)(2)(A), and the Science Advisory
Board ("SAB"), see 42 U.S.C. § 4365. The other thirteen are
created by presidential directive or by the EPA under its
discretionary authority. See 5 U.S.C. app. 2 § 3(2). The general
purpose of such advisory committees is to provide "expert advice,
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ideas, and diverse opinions" to the agency. 5 U.S.C. app. 2
§ 2(a).
Committee membership decisions are largely left to
agency discretion, see 41 C.F.R. § 102-3.130(a), and agencies have
considerable latitude to establish committees' "administrative
guidelines and management controls," 5 U.S.C. app. 2 § 8(a). Some
EPA committees are subject to more explicit statutory dictates as
to their membership. For example, CASAC is required to have "at
least one member of the National Academy of Sciences, one
physician, and one person representing State air pollution control
agencies." 42 U.S.C. § 7409(d)(2)(A). SAB's members "shall be
qualified by education, training, and experience to evaluate
scientific and technical information on matters referred to the
Board." Id. § 4365. Advisory committee members are usually
appointed for two- or three-year terms and are frequently
reappointed.
The EPA's advisory committees have historically been
subject to overlapping schemes of ethics checks. See Office of
the Inspector General, U.S. EPA, Report No. 13-P-0387, EPA Can Better
Document Resolution of Ethics and Partiality Concerns in Managing
Clean Air Federal Advisory Committees, at 8–10 (Sept. 11, 2013)
[hereinafter "OIG Report"], http://epa.gov/sites/production/files
/2015-09/documents/20130911-13-p-0387.pdf. Generally, advisorycommittee members, who are considered "special government
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employees," see 18 U.S.C. § 202(a), are subject to regulations set
out by the U.S. Office of Government Ethics ("OGE"). The
regulations make clear that each committee member is:
prohibited by criminal statute from
participating personally and substantially in
an official capacity in any particular matter
in which, to his knowledge, he or any person
whose interests are imputed to him under [the]
statute has a financial interest, if the
particular matter will have a direct and
predictable effect on that interest.
5 C.F.R. § 2635.402(a) (citing 18 U.S.C. 208(a)); see also OIG
Report, supra, at 8. Some waivers are possible, and there are
exemptions. OIG Report, supra, at 8–9. For example, a committee
member "may participate in any particular matter of general
applicability where the disqualifying financial interest arises
from his non-Federal employment . . . provided that the matter
will not have a special or distinct effect on the employee or
employees other than as part of a class." 5 C.F.R. § 2640.203(g).
Agencies may add additional ethics rules with OGE's "concurrence."
Id. § 2635.105(a).
The EPA has additional conflict-of-interests rules of
its own, including internal policies for identifying potential
financial conflicts of interest. OIG Report, supra, at 9. Active
committee members must complete a conflicts form annually, which
requires them to supply information on paid work, assets, funding,
and other activities. Id. The forms are reviewed by an ethics
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officer, and if potential problems are identified the member may
be required to "take action to mitigate the concern." Id.1
The EPA administers several grant programs to fund
scientific research, ultimately awarding over $4 billion in grants
every year. EPA, EPA Grants Overview for Applicants and
Recipients, https://www.epa.gov/grants/epa-grants-overviewapplicants-and-recipients; see, e.g., 42 U.S.C. § 7403(b)(3)
(Clean Air Act provision authorizing the EPA administrator to make
grants); 33 U.S.C. § 1254(b)(3) (Clean Water Act provision
authorizing the EPA administrator to make grants). Advisory
committees do not participate in the EPA's grant-making decisions.
Traditionally, EPA grant recipients have been permitted to serve
on advisory committees while they are receiving EPA grants. The
EPA's Inspector General explained in 2013 that "[t]he EPA does not
consider a prospective or current member's receipt of an agency or
other federal research grant to create the basis for a financial
conflict of interest." OIG Report, supra, at 9.
1 The OIG Report analyzed whether the EPA had properly managed
potential conflicts of interest on CASAC and one other committee
(the Advisory Council on Clean Air Compliance Analysis). OIG
Report, supra, at 1. The report determined that the EPA had proper
procedures for conflicts of interest but that they were not always
clearly followed. Id. at 19 ("The SAB Staff Office has adequate
procedures for identifying independence and impartiality
concerns."). It recommended that the Science Advisory Board Staff
Office, which "manages the CASAC and Council," id. at 5, develop
better procedures for documenting investigations on conflicts of
interest, id. at 14–17, 19–20.
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So stood matters until October 2017, when the EPA's
former director, E. Scott Pruitt, issued a directive called
"Strengthening and Improving Membership on EPA Federal Advisory
Committees." The directive sets out four principles. The
principle labeled "Strengthen Member Independence" is the one to
which the plaintiffs object. It reads as follows:
Members shall be independent from EPA, which
shall include a requirement that no member of
an EPA federal advisory committee be currently
in receipt of EPA grants, either as principal
investigator or co-investigator, or in a
position that otherwise would reap substantial
direct benefit from an EPA grant. This
principle shall not apply to state, tribal or
local government agency recipients of EPA
grants.
The directive is accompanied by a five-page explanatory memo, of
which approximately half a page is dedicated to the objected-to
principle. It states in pertinent part:
A vital part of ensuring integrity and
confidence in EPA's [advisory committees]
comes from guaranteeing that [advisory
committee] members remain independent of the
Agency during their service. EPA [advisory
committee] members should avoid financial
entanglements with the EPA to the greatest
extent possible.
Non-governmental and non-tribal members
in direct receipt of EPA grants while serving
on an EPA [advisory committee] can create the
appearance or reality of potential
interference with their ability to
independently and objectively serve as a[n
advisory committee] member. [Advisory
committee] members should be motivated by
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service and committed to providing informed
and independent expertise and judgment.
The memo then otherwise largely repeats the language of the
principle on strengthening member independence.
The complaint alleges that the new directive
disqualifies "thousands of scientists affiliated with academic and
not-for-profit institutions." And precisely because those
scientists who receive EPA grants tend to be leaders in their
fields, the directive is said to target many of the most
knowledgeable scientists who are not affiliated with industry.
Some of the scientists have responded by surrendering grants in
order to continue serving their country. But, the plaintiffs
explain, many cannot make this sacrifice. As a result, the
plaintiffs allege that the directive has quickly and materially
increased the participation of industry-affiliated scientists on
EPA committees. On the SAB, for example, the number of industryaffiliated scientists has tripled.
One of the scientists forced to step off an EPA grant in
order to remain a CASAC member was plaintiff Elizabeth Anne
Sheppard. Dr. Sheppard teaches environmental health science and
biostatistics at the University of Washington. Until the directive
issued, she served as co-lead investigator on a $3 million EPA
grant for researching health effects of air pollution. She and
the Union of Concerned Scientists, a nonprofit organization that
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describes itself as representing the scientific community,
commenced this suit in January 2018. They seek both a declaration
that the directive's bar on grant-recipient advisory committee
members was unlawful and an injunction against it. The complaint
included four counts. Count I of the complaint alleges that the
directive violates the APA's reasoned decision-making standard,
Count II alleges that the directive conflicts with directives
issued by the General Services Administration and regulations of
the Office of Governmental Ethics, and Counts III and IV allege
violations of FACA's requirements for advisory committees.
The district court dismissed all the counts, finding
that they raised questions unreviewable under the APA and,
alternatively, that the first and second counts failed to state a
claim on the merits. Union of Concerned Scientists v. Wheeler,
377 F. Supp. 3d 34, 43–49 (D. Mass. 2017). The plaintiffs now
appeal the district court's dismissal of Counts I, III, and IV.
II.
This court reviews a grant of a motion to dismiss, see
Fed. R. Civ. P. 12(b)(6), de novo, assuming that all pleaded facts
and reasonable inferences drawn from them are true, Breiding v.
Eversource Energy, 939 F.3d 47, 49, 52 (1st Cir. 2019). We also
review de novo the question of whether a claim is justiciable under
the APA. See Massachusetts v. U.S. Nuclear Regulatory Comm'n, 708
- 10 -
F.3d 63, 73 (1st Cir. 2013) ("Errors of law are reviewed de
novo.").
A.
Congress enacted FACA in substantial part to "provide
uniform standards for the creation, operation, and management of
[advisory] committees." S. Rep. No. 92-1098, at 1 (1972)
(statement of purpose). The Act followed on the heels of a
disclosure that "the [Office of Management and Budget], without
statutory authority, had established close liaison with an
Advisory Council on Federal Reports (ACFR) composed entirely of
business officials from each of the major industries" but not
"consumer, labor, []or small business representatives." Id. at 2.
The statute itself requires a committee's implementing legislation
to "require the membership of [any] advisory committee to 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)(2) ("fair balance provision"). It also requires
that such legislation "contain appropriate provisions to assure
that the [committee's] advice and recommendations . . . 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." Id. § 5(b)(3)
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("inappropriate influence provision").2 Agency heads "shall"
follow these guidelines in creating an advisory committee. Id.
§ 5(c). The EPA suggests that § 5(b) applies only to legislation,
and thus provides no restraint on the agency's own selection of
advisory committee members. But § 5(c) extends those same
requirements to "the President, agency heads, or other federal
officials in creating an advisory committee" "[t]o the extent they
are applicable." FACA thus effectively reduces agencies' formerly
absolute discretion over advisory committees for the "principal
purpose" of "enhanc[ing] [their] public accountability." Pub.
Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 459 (1989).3 In
accordance with that purpose, the statute uses the word "shall,"
which generally signals that compliance is mandatory. 5 U.S.C.
app. 2 § 5(b)–(c); see Murphy v. Smith, 138 S. Ct. 784, 787 (2018)
("[T]he word 'shall' usually creates a mandate, not a
liberty. . . ."); Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26, 35 (1998) ("[T]he mandatory 'shall' . . .
2 Deciding this appeal does not require that we consider how
or whether one statute may dictate the terms of a subsequent
statute.
3 Legislative history suggests that Congress found these two
provisions of FACA to be "[p]articularly important." H.R. Rep.
No. 92-1017, at 5 (1972), reprinted in 1972 U.S.C.C.A.N. 3491,
3495–96. Congress was particularly concerned about the potential
for "special interest groups [to] use their membership on such
bodies to promote their private concerns." Id.
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normally creates an obligation impervious to judicial
discretion.").
Each of the three counts that plaintiffs press on appeal
describes the EPA's issuance of the Directive as "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law." Collectively, they offer three reasons why this is so:
the directive violates FACA's fair balance provision (Count III);
the directive violates FACA's inappropriate influence provision
(Count IV); and the EPA offered no rational explanation for
adopting the directive, especially given that it changed prior
policy (Count I). We address first Counts III and IV, the APA
claims predicated on violations of FACA.
1.
FACA contains no private right of action. The APA,
however, generally provides a vehicle for reviewing agency
decisions that are alleged to violate federal law. See Cowels v.
Fed. Bureau of Investigation, 936 F.3d 62, 66 (1st Cir. 2019) ("The
[APA] waives federal sovereign immunity for suits alleging injury
by agency action.") (citing 5 U.S.C. § 702). There is a "strong
presumption" of judicial review under the APA. Mach Mining, LLC
v. EEOC, 575 U.S. 480, 486 (2015); see also NAACP v. Sec'y of
Housing & Urban Dev., 817 F.2d 149, 152 (1st Cir. 1987) ("[F]ederal
action is nearly always reviewable for conformity with statutory
obligations . . . .").
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Notwithstanding that strong presumption, agency actions
can evade judicial review under the APA if they are "committed to
agency discretion by law." 5 U.S.C. § 701(a)(2).4 Such a
commitment exists when the agency action is of a kind
"traditionally regarded as committed to agency discretion,"
Lincoln v. Vigil, 508 U.S. 182, 192 (1993), or when the relevant
statute "is drawn so that a court would have no meaningful standard
against which to judge the agency's exercise of discretion," id.
at 191 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)).
Two months after the district court issued its judgment
in this case, the Supreme Court issued an opinion emphasizing that
the § 701(a)(2) exception to the presumption of reviewability is
"quite narrow[]." Dep't of Commerce v. New York, 139 S. Ct. 2551,
2568 (2019). In New York, the Court explained that the Census
Bureau's decision to include a question about citizenship on the
2020 census was reviewable for its compliance with the Census Act.
Id. at 2567–69. The Court explained that "the taking of the census
is not one of those areas traditionally committed to agency
discretion." Id. at 2568. As examples of such areas, the court
pointed only to "decision[s] not to institute enforcement
proceedings" and "a decision by an intelligence agency to terminate
4 Review of an agency action is also unavailable where
"statutes preclude judicial review." 5 U.S.C. § 701(a)(1).
Neither party argues that this exception applies here.
- 14 -
an employee in the interests of national security." Id. (citing
Chaney, 470 U.S. at 831–82; Webster v. Doe, 486 U.S. 592, 600–01
(1988)); see also Weyerhauser Co. v. U.S. Fish and Wildlife Serv.,
139 S. Ct. 361, 370 (2018) ("The few cases in which we have applied
the § 701(a)(2) exception involved agency decisions that courts
have traditionally regarded as unreviewable, such as the
allocation of funds from a lump-sum allocation, or a decision not
to reconsider a final action." (internal citations omitted)).
The Court also determined that the Census Act was not
"drawn so that it furnishe[d] no meaningful standard" to apply.
New York, 139 S. Ct. at 2568–69. Despite the fact that the Act
"confer[red] broad authority on the Secretary," including
"instruct[ing] him to take 'a decennial census of population' in
'such form and content as he may determine,'" it also set out
standards to guide the content of the Census (including "the extent
to which . . . statistical sampling" could be used and methods of
collecting information). Id.
We apply the teaching of New York to the case before us.
First, as to whether the make-up of agency advisory committees is
an area traditionally left to agency discretion, the EPA has
pointed us to nary a case that would suggest as much. It simply
argues that advisory committee policies involve "the 'complicated
balancing of a number of factors which are peculiarly within [the
agency's] expertise,'" quoting Vigil, 508 U.S. at 191. But that
- 15 -
description applies to most things that the EPA does, including
mandated non-discretionary activities. Moreover, while agency
discretion in handling advisory committees may have been
unfettered prior to 1972, FACA itself was the result of Congress's
determination that some fetters were needed. Congress mandated
that "[t]o the extent they are applicable, the guidelines set out
in subsection (b) [of FACA] . . . shall be followed by . . . agency
heads." 5 U.S.C. app. 2 § 5(c). This is not the type of language
Congress employs to create or preserve an area so traditionally
left to agency discretion as to constitute an exception to the
normal rule of justiciability.5
Second, as to whether FACA furnishes any meaningful
standards that a reviewing court can apply, we train our attention
on FACA'S fair balance and inappropriate influence standards. The
EPA claims that neither standard is "[j]udicially [m]anageable,"
because, according to the EPA, neither offers a "meaningful
standard against which to judge the agency's exercise of
discretion," quoting Chaney, 470 U.S. at 830.
We disagree with the EPA that courts are not well
equipped to enforce at least the outer boundaries of ranges of
5 To the extent the EPA is arguing that these are essentially
hiring decisions committed to agency discretion, the argument
fails. These are clearly not individual hiring decisions committed
to discretion, but an agency-wide policy addressed to special
function committees.
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this type. See, e.g. New York, 139 S. Ct. at 2568–69 (relying on
the secretary's "duty to conduct a census that is accurate and
that fairly accounts for the crucial representational rights that
depend on the census and the apportionment" (emphasis added));
Weyerhauser, 139 S. Ct. at 371 (relying on law that "requires the
[s]ecretary to consider economic impact and relative benefits").
Nor does the fact that the statute leaves a great deal of
discretion to the agency, see 5 U.S.C. app. 2 § 8(a), make actions
taken pursuant to it unreviewable. See Weyerhauser, 139 S. Ct. at
370 ("A court could never determine that an agency abused its
discretion if all matters committed to agency discretion were
unreviewable."); Chaney, 470 U.S. at 829–30 (clarifying that a
contrary approach would render APA review meaningless); Dugan v.
Ramsay, 727 F.2d 192, 195 (1st Cir. 1984) (explaining that the
"fact that an agency enjoys broad discretionary powers does not
mean judicial review is forbidden"). Here, for example, if the
agency announced that only persons paid by a regulated interested
business could serve on a committee, we would expect that FACA's
fair balance and inappropriate influence standards would supply a
meaningful tool for reviewing such a new policy. See H.R. Rep. No.
92-1017, at 6 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 4596
(identifying "representatives of industry" as parties whose
"private interests" could be affected by the agency's work as
special interests). To rule otherwise would be to conclude that FACA
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failed to put an enforceable end to one of the very types of advisory
relationships that prompted Congress to enact it in the first place.
There are certainly many different points of view that
the EPA might take into account in forming its committees and
different balances that can be struck in a committee's membership.
Nevertheless, FACA clearly requires agency heads at least to
consider whether new restraints on committee membership might
inappropriately enhance special interest influence and to eschew
such restraints when they do so. That requirement is at least as
manageable as the requirements set out in the Census Act. See New
York, 139 S. Ct. at 2568-69. The concepts of fairness, balance,
and influence are not foreign to courts, and we are certainly
capable of reviewing agency actions with reference to those
concepts in at least some factual scenarios.
The EPA's position also ignores the important point that
the APA provides for judicial review of both procedure and
substance. See 5 U.S.C. § 706(2)(A) (prohibiting both actions
that are "arbitrary" or "capricious" and actions "otherwise not in
accordance with law"); Moss, 708 F.3d at 73 ("An agency's decision
is not arbitrary and capricious if that decision was based on
consideration of the relevant factors, and if the agency did not
commit a clear error of judgment."); H.R. Rep. No. 1980, at 276
(1946) (explaining that in order to prevail under § 706 a
complainant "must show that the action is contrary to law in either
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substance or procedure" (emphasis added)); see also Bennett v.
Spear, 520 U.S. 154, 172 (1997) ("It is rudimentary administrative
law that discretion as to the substance of the ultimate decision
does not confer discretion to ignore the required procedures of
decision[-]making."). The EPA points out that the proper balance
of viewpoints will likely differ between committees simply by
virtue of the fact that the "functions to be performed" by each
committee, 5 U.S.C. app. 2 § 5(b)(2) -- which the agency is
instructed to consider in balancing committee membership -- are
different. But that is hardly a sufficient response to a
congressional command that each of the committees be fairly
balanced. Further, we see no reason why a court could not consider
the functions assigned to each individual committee in evaluating
whether its balance is fair.
Here, the EPA has admittedly changed a long-standing
practice. And it has done so in a manner that the complaint
plausibly describes as altering the balance and the role of special
interest influence on EPA advisory committees. Plaintiffs also
contend that the agency's justification for increasing the
relative role of special interests is itself irrational and refuted
by the agency's targeting of only EPA grant recipients who are not
affiliated with states, local governments, or tribes. In this
context, FACA's standards tell us what Congress intended the EPA
to consider, and the APA's reasoned decision-making standards tell
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us how the EPA is to go about making and explaining that
consideration. As a result, sufficient standards exist for
meaningful review of the decision-making process at issue here --
even if the standards themselves preserve wide agency discretion.
We acknowledge that there is some dispute among our
sister circuits on this question of whether FACA's fair balance
and inappropriate influence provisions are reviewable under the
APA. Our approach here accords with the majority view.6 And in
any case, the contrary decisions were made before the Supreme
6 See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1231–34
(10th Cir. 2004) (finding the fair membership balance requirement
set out in FACA's implementing regulations justiciable, 43 C.F.R.
§ 1784.2–1(a) (roughly echoing FACA § 5(b)(2)), but that FACA's
inappropriate influence provision did not provide a meaningful
standard to apply); Cargill, Inc. v. United States, 173 F.3d 323,
334–41 (5th Cir. 1999) (finding that FACA's fair balance and
inappropriate influence provisions were reviewable); Ala.-
Tombigbee Rivers Coal. v. Dep't of Interior, 26 F.3d 1103, 1106–
07 (11th Cir. 1994) (conducting review under FACA's fair balance
provision, though not expressly addressing a challenge to its
reviewability); Pub. Citizen v. Nat'l Advisory Comm. on
Microbiological Criteria for Foods, 886 F.2d 419, 426, 432–34 (D.C.
Cir. 1989) (Edwards, J., concurring) (finding the fair balance and
inappropriate influence provisions reviewable); see also id. at
420–26 (Friedman, J., concurring) (reaching the merits as to
whether the challenged action violated FACA). But see Ctr. for
Policy Analysis on Trade and Health v. U.S. Trade Rep., 540 F.3d
940, 943–45 (9th Cir. 2008) (finding FACA's fair balance
requirement not reviewable in the particular scenario complained
of because it provided "no meaningful standards to apply" nor
"articulate[d] what perspectives must be considered"); Pub.
Citizen, 886 F.2d at 426, 430–31 (Silberman, J., concurring)
(finding the fair balance and inappropriate influence requirements
not reviewable because there was no "meaningful standard . . .
susceptible of judicial application").
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Court's decision in New York, which, as we have described above,
provides more clarity on this issue.
In sum, FACA requires the EPA to maintain a fair balance
on its committees and to avoid inappropriate influences by both
the appointing authority and any special interest. Plaintiffs
allege that the directive skewed the composition of EPA committees
in favor of regulated industries. They further allege that the
EPA offered no rational reason for finding that any benefits of
the policy justified the alteration of balance and influence on
the committees. Indeed, the allegation is that the EPA did not
even acknowledge that the directive had such an effect. These
allegations plausibly state claims for judicial review under the
APA. So we remand this case to the district court for further
proceedings on Counts III and IV.7
2.
Unlike Counts III and IV, Count I alleges violations of
only the APA itself. It specifically relies on 5 U.S.C.
§ 706(2)(A), which prohibits agency decisions that are "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law." We have previously explained that
An agency decision fails to pass this test if
the administrative record reveals that "the
7 We anticipate that further proceedings on Counts III and IV
will include the compiling and certification of the administrative
record, customarily "[t]he focal point of APA review." Atieh v.
Riordan, 727 F.3d 73, 76 (1st Cir. 2013).
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agency relied on improper factors, failed to
consider pertinent aspects of the problem,
offered a rationale contradicting the evidence
before it, or reached a conclusion so
implausible that it cannot be attributed to a
difference of opinion or the application of
agency expertise."
Atieh v. Riordan, 727 F.3d 73, 75–76 (1st Cir. 2013) (quoting
Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st
Cir. 1997)); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Claims
under § 706(2)(A) are subject to the same limits on reviewability
set forth at § 701(a), see Chaney, 470 U.S. at 828, and the EPA
argues that Count I is not reviewable for largely the same reasons
as Counts III and IV.
The principal difference between Count I and Counts III
and IV is that Count I alleges a violation of the reasoned
decision-making standards of the APA alone. The EPA thus argues
that § 706(2)(A) does not itself provide the "meaningful standard"
required for review under Chaney, 470 U.S. at 830. See Lunney v.
United States, 319 F.3d 550, 559 n.5 (2d Cir. 2003) ("We . . .
note that the APA's 'arbitrary and capricious' standard, see 5
U.S.C. § 706(2)(A), cannot be sufficient by itself to provide the
requisite 'meaningful standard' for courts to apply in evaluating
the legality of agency action. See Chaney, 470 U.S. at 829–30.
If agency actions could be challenged as 'arbitrary and
capricious,' without reference to any other standard, then
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§ 701(a)(2)'s limitation on APA review would amount to no
limitation at all . . . ." (emphasis in original)).
The plaintiffs counter that they can rely wholly on
§ 706(2)(A) to provide a standard for review, citing Robbins v.
Reagan, 780 F.2d 37 (D.C. Cir. 1985). Even Robbins, however,
relied on external standards:
While the absence of clear statutory
guidelines might at times hamper a court's
ability to deem agency action contrary to law,
it need not always do so. Even where there
are no clear statutory guidelines, courts
often are still able to discern from the
statutory scheme a congressional intention to
pursue a general goal.
Id. at 45.
We are unable to locate any case in which we have decided
a claim under § 706(A)(2) without the benefit of an additional set
of statutory or regulatory requirements to guide us in assessing
the propriety of an agency's procedures in a matter. While we
have not clearly defined the outer limits of the types of "law"
that may furnish meaningful standards for deciding claims under
§ 706(2)(A), see Cowels, 936 F.3d at 66–67 (declining to decide
whether the FBI's National DNA Index System Manual was sufficient
to provide law to apply), statutes constraining or guiding the
relevant agency's discretion surely qualify if they create
"judicially manageable standards," as required by § 701(a)(2),
Chaney, 470 U.S. at 830; see, e.g. City of Taunton v. EPA, 895
- 23 -
F.3d 120, 124–29 (1st Cir. 2018), cert. denied, 139 S. Ct. 1240
(2019) (relying on the Clean Water Act to guide a claim under
§ 706(A)(2)).
Whether a court could entertain a so-called "pure APA"
action without reference to another substantive statute is a
question we need not and do not decide. The thrust of plaintiffs'
claim is that the challenged EPA action was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with the
law precisely because the EPA failed to rationally consider and
explain the effects of the directive under FACA's standards. The
plaintiffs do cite as background other statutes and regulations
erecting committees and setting out a baseline ethics regime,
including 18 U.S.C. § 208 and OGE's regulations, described above.
But they make no claim that this background plays any role distinct
from the role it plays under Counts III and IV. That is, these
statutes and regulations may certainly provide context for the
agency's actions as they are evaluated under Counts III and IV,
but nothing in the complaint points to any noncompliance with them.
Ultimately, the outcome of this litigation will turn on
the resolution of APA review under Counts III and IV, which
incorporate the plaintiffs' complaints about the EPA's decisionmaking process. That is, Counts III and IV are APA claims and
plaintiffs point us to no fact or theory that could be considered
under Count I but not Counts III and IV. Cf. Cousins v. Sec'y of
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the U.S. Dep't of Transp., 880 F.2d 603, 605–07 (1st Cir. 1989)
(en banc) (explaining that the plaintiff's claim based on a federal
Department of Transportation rule was more properly conceived as
an APA challenge, and did not justify an analysis of whether a
private right of action should be implied under the Rehabilitation
Act, given that "[t]he APA was intended to provide . . . a single
uniform method for review of federal agency action"). In the end,
plaintiffs made clear in their reply and at oral argument that
Count I should be read as relying on FACA, at least unless we find
FACA insufficient to provide a justiciable standard. And since we
agree with plaintiffs that FACA does provide justiciable
standards, we will treat Count I as subsumed in Counts III and IV.
As a result we affirm the district court's dismissal of Count I as
a free-standing claim and direct the District Court to apply the
standards set forth in § 706(2)(A) to its analysis of Counts III
and IV.
B.
The EPA also argues that the plaintiffs' claims are not
ripe because the plaintiffs have not shown that the directive has
actually excluded scientists affiliated with academic and nonprofit institutions in a way that has caused or will cause
imbalance on the committees. The EPA acknowledged at oral
argument, however, that after the directive went into effect,
committee members including plaintiff Sheppard had to choose
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between their EPA grants and committee memberships immediately,
and some individuals left their committees for that reason. That
is to say, "[r]esolution of the actual claim[s] here . . . hinges
on an assessment of events that have already occurred." Town of
Barnstable v. O'Connor, 786 F.3d 130, 143 (1st Cir. 2015).
The EPA seems also to make a mootness argument along the
lines that, now that Sheppard's term of service on the CASAC has
ended, she no longer faces the choice created by the directive.
But the plaintiffs have argued that historically committee members
have served multiple terms of service. And in any case, the
plaintiffs seek declaratory judgment. If they are successful and
the EPA is forced to abandon the directive, grant recipients will
again be permitted to sit on the EPA's committees. So long as
there is some "concrete interest, however small, in the
outcome . . ., the case is not moot." Id. at 142 (quoting Knox v.
Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307–08 (2012)).
To the extent the EPA makes a mootness argument, it too fails.

Outcome: For the foregoing reasons, we reverse the district
court's decision on Counts III and IV, and remand for further
proceedings consistent with our decision, which should include the
dismissal of Count I without prejudice to further proceedings on
Counts III and IV.

Plaintiff's Experts:

Defendant's Experts:

Comments: