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\par No. 95-788
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par MARY DOE, ET AL., PETITIONERS
\par 
\par v.
\par 
\par DONNA SHALALA, SECRETARY OF HEALTH AND
\par HUMAN SERVICES, ET AL.
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE FORTH CIRCUIT
\par 
\par BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par FRANK W. HUNGER
\par Assistant Attorney General
\par 
\par MARK B. STERN
\par JACOB M. LEWIS
\par Attorneys
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202) 514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par           
\par QUESTION PRESENTED
\par 
\par Whether a suit under the Federal Advisory Com  
\par mittee Act, 5 U.S.C. App., seeking to enjoin the
\par release and consideration of a government report is
\par rendered moot by the release and consideration of
\par that report.
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par      TABLE OF CONTENTS \tab                     Page
\par 
\par Opinions below  . . . . l
\par Jurisdiction . . . . 1
\par Statement . . . . 2
\par Argument  . . . .  6
\par Conclusion . . . . 13
\par 
\par      TABLE OF AUTHORITIES
\par 
\par Cases:
\par Alabama- Tombigbee Rivers Coalition v. Depart-
\par ment of the Interior, 26 F.3d 1103 (llth Cir.
\par 1994) . . . . 9
\par Animal Legal Defense Fund v. Shalala, 53 F.3d
\par 363 (D.C. Cir. 1995) . . . . 9
\par Doe v. Shalala, Application No. A-456 (Dec. 23,
\par 1994)  . . . . 5 
\par Lujan v. Defenders of Wildlife, 504 U.S. 555
\par (1992)  . . . . 10
\par National Anti-Hunger Coalition v. Executive Comm.
\par of the President's Private Sector Survey on Cost
\par Control:
\par   557 F. Supp.524 (D.D.C. 1983) . . . . 13
\par   711 F.2d 10071 (D.C. Cir. 1983) . . . . 13
\par National Nutritional Foods Ass'n v. Califano,
\par 603 F.2d 327 (2d Cir. 1979)  . . . . 8-9
\par Public Citizen v. Department of Health & Human
\par Servs., 795 F. Supp. 1212 (D.D. C. 1992)   . . . .7, 12, 13
\par Public Citizen v. National Advisory Comm. on
\par Microbiological Criteria for Foods:
\par   708 F. Supp. 359 (D.D.C. 1988)  . . . . 13
\par   886 F.2d 419 (D.C. Cir. 1989)  . . . . 12-13
\par Public Citizen v. United States Dep't of Justice,
\par 491 U. S. 440(1989) . . . . 2, 9
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IV
\par 
\par Cases-Continued:              Page
\par 
\par Roe v. Casey, 464 F. Supp. 483 (E.D. Pa. 1978),
\par aff 'd, 623 F.2d 829 (3d Cir. 1980) . . . . 11
\par Southern Pac. Terminal Co. v. ICC, 219 U.S. 498
\par (1911)  . . . .  8
\par Washington Legal Foundation v. United States
\par Sentencing Comm'n, 17 F.3d 1446 (D.C. Cir. 1994) . 8
\par Statutes and rules:
\par Federal Advisory Committee Act, Pub. L. No.
\par 92-463, 86 Stat. 770, 5 U.S.C. App. 1 et seq. . . . 2, 4
\par               \tab \tab \tab \tab 6, 8, 9, 10, 11, 12, 13
\par    2(a), 5 U.S.C. App. 2(a)  . . . .2 
\par    5(b)(2), 5 U.S.C. APP. 5(b)(2) . . . . 2, 3, 11
\par    5(c), 5 U. S.C. App. 5(c) . . . . 2
\par    9(c), 5 U.S.C. App. 9(c) . . . . 2
\par    10(a), 5 U.S.C. App. 10(a) . . . .2
\par    10(b), 5 U.S.C. APP. l0(b) . . . .2
\par 42 U.S.C. 289a-l(b)  . . . . 4,7-8
\par Fed. R. Civ, P.:
\par   Rule 17(c) . . . . 11
\par   Rule 24(a)(Z) . . . . 11
\par 
\par Miscellaneous:
\par 
\par 59 Fed. Reg. (1994):
\par   p. 2414 . . . .3
\par   p. 8996 . . . .3
\par   p. 14,173 . . . . 3
\par   p. 19,200 . . . . 3
\par   p. 28,874 . . . . 3
\par H.R. 2127, 104th Cong., 1st Sess. (1995) . . . . 5, 6
\par Nat'1 Insts. of Health, Report of the Human
\par Embryo Research Panel (Sept. 1994)  . . . . 2-3, 5
\par S. 1637, 92d Cong.,1st Sess. (1971) . . . . 9
\par S. 2064, 92d Cong., 1st Sess. (1971) . . . .9
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par                                             
\par NO. 95-788
\par 
\par MARY DOE, ET AL.,
\par PETITIONERS
\par 
\par v.
\par 
\par DONNA SHALALA, SECRETARY OF HEALTH AND
\par    HUMAN SERVICES, ET AL.
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI TO
\par THE UNITED STATES COURT OF APPEALS
\par    FOR THE FOURTH CIRCUIT
\par 
\par BRIEF FOR THE FEDERAL RESPONDENTS IN
\par       OPPOSITION
\par 
\par OPINIONS BELOW
\par 
\par The opinion of the court of appeals (Pet. App. 3a-8a)
\par is unpublished, but the judgment is noted at 57 F.3d
\par 1066 (Table). The opinion and judgment of the district
\par court (pet. App. 9a-30a) are reported at 862 F. Supp.
\par 1421.
\par 
\par JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par June 16, 1995. A petition for rehearing was denied on
\par August 18, 1995. Pet. App. la-2a. The petition for a
\par writ of certiorari was filed on November 16, 1995. The
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par  2
\par 
\par jurisdiction of this Court is invoked under 28 U.S.C.
\par 1254(1).
\par 
\par        STATEMENT
\par 
\par 1. This case was brought under the Federal
\par Advisory Committee Act (FACA), Pub. L. No. 92463,
\par 86 Stat. 770, 5 U. S. Cl. App. 1 et seq., to block issuance
\par of a report by the Human Embryo Research Panel of
\par the National Institutes of Health (NIH). The FACA
\par regulates the use of the "numerous committees,
\par boards, commissions, councils, and similar groups"
\par that advise "officers and agencies in the executive
\par branch of the Federal Government." FACA  2(a);
\par see Public Citizen v. United States Dep't of Justice,
\par 491 U.S. 440, 445-446 (1989). Among other things, the
\par statute  generally  requires  federal  advisory
\par committees to file a charter, FACA  9(c), to provide
\par advance notice of their meetings and open those
\par meetings to the public,  10(a), and to make publicly
\par available their minutes, records and reports.  10(b).
\par The statute also requires that the membership of
\par FACA committees, created by the President or other
\par federal officials "be fairly balanced in terms of the
\par points of view represented and the functions to be
\par performed by the advisory committee."  5(b)(2) and
\par (c). The Human Embryo Research Panel (the Panel)
\par was established in January 1994 to assist a separate
\par committee, the Advisory Committee to the Director
\par of NIH in addressing "various areas of research
\par involving the ex utero preimplantation human embryo
\par and to provide advice as to those areas that (1) are ac-
\par ceptable for Federal funding, (2) warrant additional
\par review, and (3) are unacceptable for Federal support."
\par Nat'l Insts. of Health, Report of the Human Embryo
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par Research Panel at ix (Sept. 1994) (Report).' In
\par addition, the Panel was asked to recommend
\par guidelines for the review and conduct of those areas of
\par research considered acceptable for federal funding.
\par Ibid. The Panel held five public meetings between
\par February and June 1994. Notice of each of those
\par meetings was published in the Federal Register, and
\par participation by  interested  individuals and
\par organizations was encouraged. See 59 Fed. Reg. 2414
\par (Jan. 14, 1994); id. at 8996 (Feb. 24, 1994); id. at 14,173
\par (Mar. 25, 1994); id. at 19,200 (Apr. 22, 1994); id. at
\par 28,874 (June 3, 1994).                                    
\par 2. Petitioners are (1) an unnamed human embryo
\par identified as "Mary Doe," (2) the International Fund
\par for Genetic Research (the Michael Fund), which
\par researches Down's Syndrome and similar chromoso-
\par mal disorders, and (3) Michael Policastro, a 24-year-
\par old man afflicted with Down's syndrome. Before the
\par Panel issued its report, petitioners brought suit
\par against the Secretary of Health and Human Services
\par (the Secretary), NIH and its director, and the Panel
\par and its members. Petitioners sought to enjoin the
\par Panel's activities on the ground that the membership
\par of the Panel was not "fairly balanced" within the
\par meaning of the FACA. See FACA  5(b)(2).
\par After hearing argument, the district court entered
\par summary judgment for the government, finding that
\par "considerations of standing and justiciability" were
\par "dispositive of the case." Pet. App. 15a-16a. The
\par court held that the claims of petitioner "Mary Doe"
\par should be dismissed because "embryos are not per-
\par sons with legally protectable interests within the
\par                                  
\par ___________________(footnotes)
\par 
\par 1 Petitioners have lodged a copy of the Panel's report with
\par the Court.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par meaning of Fed[eral] R[ule of] Civ[il] Procedure]
\par 17(c) such that appointments of guardians ad litem
\par are warranted or required." Pet. App. 17a. The court
\par determined that the other two petitioners lacked
\par standing to bring their claims, because they had not
\par shown they would be injured by the Panel's activities.
\par The court explained that, "[e]ven if, following a report
\par of the Panel,. NIH were to elect to fund fetal research
\par projects (and it is by no means certain to what extent
\par it will), there is no basis for concluding that decision
\par would diminish funding for research projects
\par involving Down's Syndrome or other genetic
\par disorders" or "for, suggesting that Plaintiff Michael
\par Policastro's life might [thereby] be at risk." Pet.
\par App. 22a. In addition, the court noted (Pet. App. 23a)
\par that the governing statute allows otherwise approved
\par embryo research to be funded unless either an ethics
\par advisory board advises the Secretary that it should
\par not go forward or the Secretary decides to overrule a
\par board recommendation in favor of such funding. See
\par 42 U.S.C. 289a-l(b); Pet. App. 13a. Thus, the court ob-
\par served, "preventing the Panel from issuing a report
\par could well have no effect whatsoever on the ultimate
\par decision of the Secretary to fund such research."
\par Pet. App. 23a. -
\par The court also held that petitioners' claim that the
\par Panel was not "fairly balanced" under the FACA was
\par nonjusticiable. Pet. App 24a-28a. The court noted
\par that the Panel's mission is "extremely broad to con-
\par sider all possible areas of research involving the
\par extracorporeal human embryo and to provide advice as
\par to each." Id. at 28a. It found `c `no principled basis'
\par upon which it could determine which among myriad
\par points of view deserve representation on the Panel,"
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par and concluded that "[meaningful standards" to do so
\par "are altogether lacking." Ibid. 2.         
\par On September 27, 1994, the day after the district
\par court issued its opinion, the Panel issued its report.
\par Among other things, the report concluded that "suf-
\par ficient arguments exist to support the permissibility
\par of certain areas of research involving the preim-
\par plantation human embryo within a framework of
\par stringent guidelines." Report, at x. The Panel's
\par report was formally presented to and discussed by the
\par Advisory Committee to the Director of NIH at a
\par public hearing on December 1-2, 1994. At "that meet-
\par ing, the Advisory Committee voted to accept the
\par Panel's report. Pet. App. 93a-101a. However, in
\par December 1994, President Clinton announced that he
\par had directed that NIH not allocate federal resources
\par to support "the creation of human embryos for re-
\par search purposes." Pet. App. 102a. The Panel's other
\par recommendations remain under consideration, and to
\par date no decision has been made by the Director of
\par NIH or the Secretary with regard to the federal
\par funding. of other forms of human embryo research. 3.
\par 
\par ___________________(footnotes)                                                
\par                                  
\par 2 After the district court denied their request for a stay and
\par injunction pending appeal, petitioners unsuccessfully sought a
\par stay and injunction pending appeal from the court of appeals.
\par Petitioners thereupon sought a stay pending appeal from this
\par Court, which was denied by the Chief Justice. Doe v. Shalala,
\par Application No. A-456 (Dec. 23, 1994).
\par 3 The House of Representatives has passed an appropr-
\par iations bill (H.R. 2127, 104th Cong., 1st Sess. (1995)) for the
\par Department of Health and Human Services, under Section 511
\par of which the Department would be prohibited from using
\par appropriated funds for the creation of human embryos for
\par research purposes, or for research in which human embryos
\par are "destroyed, discarded, or knowingly subjected to risk of
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par In an unpublished per curiam opinion, the court of
\par appeals held that the case had become moot. Pet. App.
\par 8a. The court explained that "[b]ecause the Panel has
\par concluded its meetings, has issued its report and
\par recommendations, and is apparently no longer in
\par existence, an order dissolving the Panel, or enjoining
\par it from holding further meetings or issuing its
\par recommendations, would be pointless." Pet. App. 7a.
\par In addition, the court found that it would be "a futile
\par gesture" for it to "issue an injunction preventing
\par NIH from considering the Panel's recommendations,"
\par since "the Panel's report and recommendations have
\par already been considered by NIH and indeed by the
\par President." Id. at 7a-8a. The court thus concluded
\par that it would be unable to grant the relief requested
\par by petitioners even if it were to rule in their favor.
\par Id. at 8a. The court of appeals therefore vacated the
\par district court's judgement and remanded the case with
\par instructions that the action be dismissed as moot.
\par 
\par        ARGUMENT
\par 
\par Petitioners renew their claims that "Mary Doe"
\par has standing to challenge the composition of the
\par Panel (Pet. 11-16) and that the composition of the
\par Panel presents a justifiable issue (Pet. 16-20). The
\par court of appeals, however, did not address those
\par issues, but instead held that petitioners' FACA
\par claims had been rendered moot by the release and
\par consideration of the Panel's report. That fact-bound
\par determination does not conflict with the decision of
\par any other court and is neither of general nor of
\par injury or death greater than that allowed for research on
\par fetuses in utero." Ibid. The Senate has not acted on that bill.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par continuing significance.  Review by this Court is
\par therefore unwarranted.
\par 1. As the court of appeals explained, petitioners'
\par request for an injunction against release and con-
\par sideration of the Panel's report is moot. The Panel
\par presented the report to the Advisory Committee to
\par the Director of NIH in September 1994, and the
\par report and its recommendations have been under
\par consideration by NIH since that time. Moreover, the
\par President has already taken the report into consid-
\par eration, as reflected in his directive that certain
\par human embryo research not be funded. It is obviously
\par beyond the power of a court to enjoin the release and
\par consideration of a report that has already been
\par released and considered. See Public Citizen v. De-
\par partment of Health & Human Servs., 795 F'. Supp.
\par 1212, 1222 (D.D.C. 1992) (because the "seeds" of the
\par committee's ideas have already been planted, "[t]o
\par repeal the recommendation now would be incon-
\par sequential").
\par Petitioners acknowledge (Pet. 21) that the Panel's
\par report "has already been disclosed and considered to
\par some extent by NIH and the President."  They
\par nonetheless contend (ibid.) that "appropriate in-
\par junctive relief" could "preclude Government decision-
\par makers from citing or using [the Report] in the
\par future to justify the funding of human embryo
\par research." However, preventing federal officials from
\par using or citing a publicly available report would not
\par prevent federal funding of human embryo research in
\par this case, since the government is free to fund such
\par research whether or not it may explicitly refer to the
\par Report and its recommendations. Petitioners con-
\par cede as much. Pet. 15 (citing Pet. App. 23a); see 42
\par U.S.C. 289a-l(b) (agency may fund research so long as
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par an ethics advisory board does not recommend against
\par research). Petitioners nevertheless speculate that
\par "[a]s a practical matter, the current Administration"
\par would not fund human embryo research "without
\par being able to point to this Panel's Report[] to justify
\par its decision." Pet. 22. But the applicable statute does
\par not prohibit the- government from funding such
\par research without referring to the Panel report, and
\par petitioners' speculation about what might or might
\par not be "practical" does not save their case from
\par mootness.
\par Nor are petitioners' claims "capable of repetition,
\par yet evading review." See Pet. 22 n.12 (citing South-
\par ern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)).
\par First, there is no reason to assume that petitioners
\par would raise any objections under FACA to any future
\par group that might be constituted to address similar
\par issues. Second, there is no basis to think that any
\par such group, if constituted, would take an appreciably
\par shorter time than the nine months it took the Panel
\par in this case to prepare and present its report and
\par recommendations. That period of time is ordinarily
\par sufficient to provide litigants with an opportunity to
\par obtain judicial review, particularly since the courts
\par have tools at their disposal to expedite their proceed-
\par ings.  See, e.g., Washington Legal .Foundation v.
\par United States Sentencing Comm'n, 17 F.3d 1446,
\par 1448 (D.C. Cir. 1994) (expediting appeal to avoid poten-
\par tial mootness). 4 
\par 4 It would in any event distort FACA'S disclosure goals to
\par invoke the Act to enjoin an agency from acting in reliance on
\par the conclusions and recommendations contained in an otherwise
\par publicly available report.  See National Nutritional Foods
\par Ass'n v. Califano, 603 F.2d 327, 336 (2d Cir. 1979) (refusing to
\par invalidate agency rule adopted in reliance on report prepared
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par 2. Petitioners' challenge to the composition of the
\par Panel also does not warrant this Court's review be-
\par cause, as the district court found, petitioners do not
\par have standing and their claim is not justifiable. See
\par Pet. App. 16a-24a, 24a-28a.
\par a. In the ordinary FACA case, plaintiffs assert
\par that they have been denied access to an advisory
\par committee's proceedings in violation of the FACA'S
\par public meeting requirements. See, e.g., Public Citi-
\par zen v. United States Dep't of Justice, 491 U.S. 440
\par (1989). The standing of a plaintiff to assert such a
\par claim is based on the concrete and immediate injury
\par he or she sustains in seeking and being denied access
\par to the committee's meetings and records. Id. at 449.
\par Petitioners, however, do not claim that they were
\par denied access to the Panel's meetings, which were
\par conducted in public after ample notice in the Federal
\par Register. See p.3, supra. Instead, they claim that the
\par Panel's membership was not fairly balanced. But by
\par itself, the composition of an advisory committee's
\par membership does not cause injury.  An advisory
\par committee's task is to provide advice, not to take        
\par in violation of FACA).  Indeed, at the time of FACA'S
\par enactment, Congress rejected a number of proposals that would
\par have precluded agencies from relying on or using the product
\par of committees convened in violation of the Act. See, e.g., S.
\par 2064, 92d Cong., 1st Sess.  14, (1971) (permitting injunction
\par against agency actions relying on the product of improperly
\par constituted advisory committee); S. 1637, 92d Cong., 1st Sess.
\par  11 (1971) (same).  But see Alabama-Tombigbee Rivers
\par Coalition v. Department of the Interior, 26 F.3d 1103, 1106-1107
\par (llth Cir. 1994) (enjoining agency from "publishing, employing
\par and relying upon" advisory committee report prepared in
\par violation of FACA); cf. Animal Legal Defense Fund v. Shalala,
\par 53 F.3d 363, 366 n.4 (D.C. Cir. 1995) (dictum).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par action. And it is only government action that can lead
\par to cognizable injury.
\par II-I this case, petitioners assert that they were
\par injured because the Panel's report will lead to federal
\par funding of human embryo research, and because in
\par various ways, such research would adversely affect
\par their legal rights. Pet. 15. But the Panel's report
\par does not itself lead to federal funding of any human
\par embryo research. The allocation of federal funds to
\par any particular research project, and the decision to
\par approve any particular application, is made by the
\par Director of NIH and the Secretary, not by the Panel
\par or by the Advisory Committee to which the Panel
\par presented its report. 5.
\par Petitioners contend (Pet. 15) that the Panel's
\par report is "potentially influential" to the decision
\par whether to fund human embryo research. But peti-
\par tioners' interest in "potential influences" on an
\par agency's decision are not enough to give them
\par standing to sue.  The harm they face must be "con-
\par crete and immediate" and "likely," not "speculative."
\par Lujan v. Defenders of Wildlife, 504 U.S. 655,560-561
\par [1992). At this stage, given the steps that remain in
\par the administrative process before a funding decision
\par could be made, it is impossible to know whether the
\par Panel's report will furnish any basis for a future deci-
\par 
\par ___________________(footnotes)
\par                                               
\par 5 The government has consistently taken the position that
\par the Panel was neither an ethics advisory board nor an advisory
\par committee covered-by the FACA. The district court assumed
\par arguendo that the-panel was both (Pet. App. 13a), and the
\par court of appeals held that, in light of its finding that peti-
\par tioners' claims were moot, there was no need to address those
\par issues. Pet. App. 6a n.2.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11
\par 
\par sion to provide federal funds for human embryo
\par research.6.
\par b. The FACA'S requirement that the membership
\par of federal advisory committees be "fairly balanced in
\par terms of the points of view represented and the func-
\par tions to be performed," FACA  5(b)(2), is in any event
\par nonjusticiable. Given the practical need for some size
\par limits in order to maintain the efficient operation of
\par collegial bodies, it would be impossible to accommo-
\par date every possible point of view regarding the
\par funding of human embryo research. The FACA pro-
\par vides no basis for determining which among the
\par various points of view on the issues to be considered
\par                          
\par ___________________(footnotes)
\par 
\par 6 Quite aside from the standing obstacles discussed in the
\par text, which are common to all three petitioners, there are
\par additional questions concerning the capacity of each petitioner
\par to bring this action. Petitioners apparently have abandoned
\par their claim that The Michael Fund and Michael Policastro
\par have standing to challenge the Panel's composition under the
\par FACA. As the district court found, there is "no basis" on
\par which to conclude that a decision to fund human embryo re-
\par search "would diminish funding for research projects involving
\par Down's Syndrome or other genetic disorders," or place
\par Michael Policastro's life at risk. Pet. App. 22a. Furthermore,
\par the district court concluded that Mary Doe, whom petitioners
\par assert is a representative of the 20,000 embryos stored in labora-
\par tories in the United States (Pet. 7), does not have standing
\par because she is not a "person" within the meaning of Federal
\par Rule of Civil Procedure 17(c) for whom a guardian ad litem
\par can be appointed. Pet. App. 16a-18a; see Roe. V. Casey, 464 F.                        
\par Supp. 483, 486-487 ((E.D. Pa. 1978), aff `d, 623 F.2d 829 (3d Cir.
\par 1980) (in challenge to restrictions on state-funded abortions,
\par district court denies motion to appoint guardians ad litem for
\par unborn children, holding that fetuses and embryos "are not
\par persons with a legally protectable interest within the meaning
\par of Fed. R. Civ. P. 17(c) or 24(a)(2) and, thus, the appointment
\par of guardians ad litem is neither warranted nor required").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 12
\par 
\par by a federal advisory committee must be represented
\par in order to achieve a fair balance. See Public Citizen
\par v. National Advisory Comm. on Microbiological
\par Criteria for Foods, 886 F.2d 419,426 (D.C. Cir. 1989)
\par (Silberman, J., concurring). Nor does the FACA give
\par any guidance about how much representation on a
\par committee is sufficient. For example, the Act does
\par not. say whether a member of a committee must actu-
\par ally espouse or advocate a particular view in order to
\par "represent" that. view, or whether it is sufficient that
\par the member is acquainted with the view. Nor does the
\par FACA specify whether there must be at least one
\par representative of a point of view, or more than one-
\par and if so, how many more. As to those and other
\par issues that might be imagined, the Act gives no
\par answer at all. See generally id. at 426-427 (Silber-
\par man, J., concurring).
\par Given the lack of statutory guidance, the task of
\par filling in the blanks left by Congress's failure to
\par define fair balance-to decide which among the many
\par possible viewpoints should be represented on a com-
\par mittee and to what extent they should be represented
\par -would require a court to engage in "political and
\par ideological determinations." Public Citizen v. De-
\par partment of Health and Human Servs., 795 F. Supp.
\par 1212, 1221 (D.D.C. 1992); accord Microbiological, 886
\par F.2d at 426 (Silberman, J., concurring) (concluding
\par that "the judgment as to what constitutes an
\par appropriate or `fair' balance of * * * views" is "a
\par political one"). Such judgments are for the agency to
\par make; they are not an appropriate matter for adjudica-
\par tion. Microbiological, 886 F.2d at 430 (Silberman, J.,
\par 
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\par 
\par 13
\par 
\par concurring); Public Citizen v. HHS, 795 F. Supp. at
\par 1222. 7.
\par 
\par        CONCLUSION                     
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par Respectfully submitted.
\par 
\par            DREW S. DAYS, III
\par            Solicitor General
\par 
\par            FRANK W. HUNGER
\par           Assistant Attorney General
\par 
\par           MARK B. STERN
\par           JACOB M. LEWIS
\par            Attorneys
\par 
\par JANUARY 1996
\par 
\par ___________________(footnotes)
\par 
\par 7 Petitioners assert (Pet. 18 & n.10) that "most courts" have
\par held that a fair balance inquiry would not "defy judicial
\par analysis." The cases they cite-the district court's decision in
\par Microbiological and the appeals court's decision in National
\par Anti-Hunger Coalition v. Executive Comm. of the President's
\par Private Sector Survey on Cost Control, 711 F.2d 1071 (D.C. Cir.
\par 1983)-do not bear out their contention. The district court in
\par Microbiological was careful to express its concerns that
\par examination of the committee's membership would lead to "sub-
\par jective determinations" regarding the committee's composi-
\par tion. 708 F. Supp. 359, 364 (D.D.C. 1988). Indeed, it was on
\par appeal in that case that Judge Silberman concluded that FACA
\par balance claims are nonjusticiable. See 886 F.2d at 430. As for
\par the court of appeals in National Anti-Hunger Coalition, it
\par affirmed a district court decision that had concluded that the
\par membership of the Executive Committee of the President's
\par Cost Survey was fairly balanced only after emphasizing that
\par the FACA "[n]owhere * * * explain[s]" what is meant by fair
\par balance, and observing that a requirement to represent every
\par point of view regarding federal fiscal management would be
\par "unworkab[le]." 557 F. Supp. 524, 528 (D.D.C. 1983).
\par 
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\par 
\par }