Opposition Brief — National Academy of Sciences v. Animal Legal Defense Fund

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Supreme Gourt, U.S.

No. 97-208

Serre

In the Supreme Court of the Amited States

OCTOBER TERM, 1996

NATIONAL ACADEMY OF SCIENCES, PETITIONER

ANIMAL LEGAL DEFENSE FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

SETH P. WAXMAN

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

MARK B. STERN

ANNE M. LOBELL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a committee established by the National

Academy of Sciences was “utilized” by a federal

agency, within the meaning of the Federal Advisory

Committee Act, 5 U.S.C. App. § 1 et seq.

(I)

TABLE OF CONTENTS

Page

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TE EE ey ce ee ee Oa 1

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REESE SATE a AEN OOORSE S CeeS O aeeT aeSe 7

8 EER TEENIE Et ae Er WC EP 28 EP 16

TABLE OF AUTHORITIES

Cases:

Alabama-Tombigbee Rivers Coalition v. Department

of Interior, 26 F.3d 1103 (11th Cir. 1994) 0... 15

American Petroleum Inst. v. Costle, 665 F.2d

1176 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034

SEPT aiishiineceiiilliiseiabsicbinlindstinanukahandiiinantinsisssesihanmustienaeneene 14

Animal Legal Defense Fund v. Shalala, 53 F.3d

I I cis sciasettibabsemabtbenanainenes 6

California Forestry Ass’n v. Forest Service, 102

A GE BID ics ccesensveksocscnsssrsevceonesers 14

Center for Auto Safety v. Tiemann, 414 F. Supp.

215 (D.D.C. 1976), aff’d in part and remanded in

part, 580 F.2d 689 (D.C. Cir. 1978) ................c eee 14

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

I iaiiieiiethic ite itchechcchestdienittinlidaniicecinbtinddedaikanasinewecees 13

Food Chemical News v. Young, 900 F.2d 328

(D.C. Cir.), cert. denied, 498 U.S. 846 (1990) ..... 8, 12, 13

Forsham v. Harris, 445 U.S. 169 (1980) ............... 12

Henke v. Department of Commerce, 83 F.3d 1445

SEARLE RC mn ev Coe ae 12

Idaho Farm Bureau Federation v. Babbitt, 900

F’. Supp. 1349 (D. Idaho 1996) .............cccccscccsseee000. 15

Lombardo v. Handler, 397 F. Supp. 792 (D.D.C.

1975), aff’d mem., 546 F.2d 1043 (D.C. Cir. 1976),

cert. denied, 431 U.S. 982 (1977) ...............cccceseceeee 4,10

(III)

Cases—Continued: Page

Metcalf v. National Petrolewm Council, 553 F.2d

SO GEG CR Ree ntarinnncnabicactnntivivnsibetbnininiainntdeien 14

National Nutritional Foods Ass’n v. Califano, 603

FG Ge GR Gs FTO sctrcrrssstcctsssnssassnvnescecnvvesenivs 14

Natural Resources Defense Council, Inc. v. Curtis,

No. 97-0308 (PLF) (D.D.C. Aug. 6, 1997) .............. 14

Northwest Forest Resource Council v. Espy,

846 F. Supp. 1009 (D.D.C. 1994) ...............cccscsseseees 14-15

Physicians’ Educ. Network, Inc. v. Department of

Health, Educ. & Welfare, 653 F.2d 621 (D.C. Cir.

ROGE) |x insiciscisccinsetingeniemstssteeseavapibinonaiaalianatin 14

Public Citizen v. Department of Justice, 491 U.S.

GD CAGED dinttansnieriatncnitensituedincecsdiaans 6, 7, 8, 9, 10, 11, 13

Taylor v. Freeland & Kronz, 503 U.S. 638

CMOS scsiivbnssstnninstsicdicentnvsinciibdeiegeetaeasiaaaiagseraabiainents 13

Washington Legal Found. v. United States Sen-

tencing Comm’n, 17 F.3d 1446 (D.C. Cir. 1994) ..... 13

Statutes and regulations:

Animal Welfare Act, 7 U.S.C. 2131 et seq. ............6+ 3

F TEE Be iacaachctiaceeahecacitidniditeennnwintsiiiens

Federal Advisory Committee Act, 5 U.S.C.

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AL, a Re eebeisdaeinctntvniieinavsacievediowein

BAAR, Fa Be tectttnettesndntinnnnstidsinnesionapenane

Freedom of Information Act, 5 U.S.C. 552 ..............

Government in the Sunshine Act, 5 U.S.C. 552b(c) .

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Statutes and regulations—Continued: Page

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bet? § FR LE © | TES eR Ree AS reenE ERIN 1: 3

41 C.F.R. 101-6.1001 to 101-6.1035 .0.......cccccccccccceeeeese 3

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48 C.F.R.:

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Exec. Order No. 11,007, 3 C.F.R. 573 (1959-1963) .... fe)

Miscellaneous:

rie I I I in i 3

H.R. Conf. Rep. No. 1403, 92d Cong., 2d Sess.

CP ORE aihdctne Dacieesncvbckiiesnaiel can eID atta a sn 10

H.R. Rep. No. 1731, 91st Cong., 2d Sess. (1970) ....... 9

S. Rep. No. 1098, 92d Cong., 2d Sess. (1972) ............ 10

In the Supreme Court of the Gnited States

OCTORER TERM, 1996

No. 97-208

NATIONAL ACADEMY OF SCIENCES, PETITIONER

ANIMAL LEGAL DEFENSE FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

14a) is reported at 104 F.3d 424. The opinions on de-

nial of rehearing en banc (Pet. App. 37a-4la) are

reported at 114 F.3d 1209. The opinion and order of

the district court (Pet. App. 15a-36a) are unreported.

The prior decision of the court of appeals is reported

at 53 F.3d 363.

JURISDICTION

The court of appeals entered its judgment on

January 10, 1997. A petition for rehearing was denied

on May 6, 1997. Pet. App. 37a. The National Academy

(1)

of Sciences filed a petition for a writ of certiorari on

August 4, 1997. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

1. The Federal Advisory Committee Act (FACA),

5 U.S.C. App. § 1 et seqg., regulates committees pro-

viding group advice to the Executive Branch. FACA

defines an “advisory committee,” in part, as:

any committee, board, commission, council, con-

ference, panel, task force, or other similar group,

or any subcommittee or other subgroup thereof

* * *) which is —

(A) established by statute or reorganization

plan, or

(B) established or utilized by the President,

agencies,

in the interest of obtaining advice or recommen-

dations for the President or one or more agencies

or officers of the Federal Government * * *.

5 U.S.C. App. § 3(2).

If an agency “establishe[s] or utilize[s]” an ad-.

visory committee, the agency must file a charter set-

ting forth the committee’s objectives and the scope of

its activities. 5 U.S.C. App. § 9(c). In addition, the

agency must provide advance notice in the Federal

each meeting, and make committee records avail-

able to the public in accordance with the Freedom

of Information Act, 5 U.S.C. 552. 5 U.S.C. App.

§ 10(a)(2), (b) and (c). Committee meetings must be

open to the public, unless one of the exceptions

enumerated in the Government in the Sunshine Act,

5 U.S.C. 552b(c), applies. 5 U.S.C. App. § 10(a)(1) and

(d). A federal officer must preside over or attend

every committee meeting. 5 U.S.C. App. § 10(e).

Prior to any meeting, the federal officer must approve

the scheduling and agenda of the meeting. 5 U.S.C.

App. § 10(f). See generally 41 C.F.R. 101-6.1001 to

101-6.1035.

2. Pursuant to the Animal Welfare Act, 7 U.S.C.

2131 et seq., the Department of Agriculture promul-

gates nationwide standards for the treatment of ani-

mals in all research facilities. The regulations prom-

ulgated by the Department of Agriculture establish

the minimum requirements for laboratory animal

welfare. See 7 U.S.C. 2148(a)(2); 9 C.F.R. 1.1 to 4.11.

Those regulations refer to some of the recommenda-

tions of the National Academy of Science’s “Guide for

the Care and Use of Laboratory Animals” (Guide).

See Pet. App. 2a; 56 Fed. Reg. 6428 (1991).

Although the Department of Health and Human

Services (HHS) does not administer the Animal Wel-

fare Act, HHS does provide federal funding, through

contracts and grants, for biomedical and behavioral

research. 42 U.S.C. 284, 287, 287a. HHS requires all

research facilities receiving HHS funding to abide by

both the Department of Agriculture’s Animal Wel-

fare Act regulations and additional HHS guide-

lines regarding the treatment of laboratory animals.

42 U.S.C. 289d; 48 C.F.R. PHS 352.280-2, 380.201 to

380.206. HHS has adopted the Guide as a major com-

ponent of its animal welfare regulations. See, e.g., 48

C.F.R. PHS 380.205(a)(1) and (c); see also Pet. App. 2a.

The Interagency Research Animal Committee,

which is composed of representatives from each fed-

eral agency that uses animals in research, issues a

government-wide publication known as the Principles

for the Utilization and Care of Vertebrate Animals

Used in Testing, Research and Training. Pet. App.

2a. That publication also refers readers to the Guide

as an “aid to the interpretation and execution of the

Principles.” Ibid.

3. The National Academy of Sciences was char-

tered by Congress in 1863. See 36 U.S.C. 251, 1101.

The federal government has no seats on the Acad-

emy’s governing board and has no voice in choosing

the Academy’s officers or in appointing the members

of its committees. Academy officers and employees

are not persons holding employment or appointment

by the United States.

According to its charter, the Academy “shall,

whenever called upon by any department of the Gov-

ernment, investigate, examine, experiment, and

report upon any subject of science or art.” 36 U.S.C.

253. Pursuant to that provision, the Academy is fre-

quently called upon by federal agencies to perform

studies and investigations. Pet. 1-2; Pet. App. 32a

(Academy receives approximately 65% of its funds

from projects funded by the federal government). The

Academy receives no federal funding or compensation

beyond payments for its services pursuant to govern-

ment procurement contracts, grants, or cooperative

agreements. See 36 U.S.C. 253; C.A. App. 181. In ad-

dition to its substantial work for the federal govern-

ment, the Academy does some studies for state gov-

ernmental agencies and private entities and under-

takes projects on its own initiative. Lombardo v.

Handler, 397 F. Supp. 792, 794-795 (D.D.C. 1975), aff’d,

546 F.2d 1048 (D.C. Cir. 1976) (Table), cert. denied, 431

U.S. 932 (1977).

The Academy’s principal operating arm is the

National Research Council (Research Council). One

subcomponent of the Research Council is the Insti-

tute of Laboratory Animal Resources (Institute).

The Academy’s Research Council and the Institute

produce the “Guide for the Care and Use of Labora-

tory Animals.” Pet. App. 2a.

4. The Academy’s efforts to revise the Guide un-

derlie the present litigation. In 1991, the Institute

first considered revising the Guide. The Academy

eonvened a meeting at which Academy members,

scientists, and representatives of six federal agencies

unanimously agreed that the Guide should be revised.

Pet. App. 3a, 16a-17a. The Academy subsequently

submitted a grant application to HHS seeking funding

for a revision of the Guide. The proposal indicated

that a committee would be formed to revise the Guide

(Revision Committee). HHS subsequently authorized

the grant, and the Academy selected a group of fifteen

people to serve on the committee. Jd. at 17a.

5. In May 1994, the Animal Legal Defense Fund,

Psychologists for the Ethical Treatment of Animals,

and the Association of Veterinarians for Animal

Rights (collectively, the Fund) filed suit against HHS

alleging that the Academy’s Revision Committee is

an “advisory committee” subject to FACA. Pet. App.

17a-18a. The Academy subsequently intervened in

the action as a co-defendant. Jd. at 18a. The Fund’s

motion for a preliminary injunction to halt the Revi-

sion Committee’s meetings was denied by the district

1 One individual, Kathryn Bayne, D.V.M., Ph.D., was in-

vited by the Academy to serve on the Revision Committee

while she was an employee of HHS. Dr. Bayne left federal em-

ployment in May 1994. C.A. App. 326-327.

court. The court of appeals dismissed the Fund’s

appeal of the denial of a preliminary injunction as

moot after the Revision Committee concluded its last

meeting. Jd. at 3a; Animal Legal Defense Fund v.

Shalala, 53 F.3d 363 (D.C. Cir. 1995).?

The district court granted summary judgment

in favor of the federal agencies and the Academy,

holding that the agencies neither “established” nor

“utilized” the Revision Committee, within the mean-

ing of FACA. Pet. App. 15a-36a. The court of appeals

reversed. Jd. at la-14a. The court of appeals held

that, when a committee is established by a “quasi-

public” entity and receives federal funds, and when an

agency uses the committee’s work product, it is sub-

ject to FACA regardless of whether the agency re-

quested committee advice or managed and controlled

the committee /d. at 7a-14a. The court of appeals re-

lied heavily on this Court’s decision in Pubiic Citizen

v. Department of Justice, 491 U.S. 440 (1989).

Both the Academy and the federal agencies filed

petitions for rehearing and suggestions of rehearing

en banc, which the court of appeals denied. Pet. App.

37a-39a. The author of the panel opinion, Judge

Silberman, explained in an opinion concurring in the

denial of rehearing en banc that some of the Acad-

emy’s concerns about FACA’s requirements (such as

the duty to ensure that committee membership is

fairly balanced) were misplaced, because not all of

FACA’s obligations apply to committees “utilized,”

but not “established,” by a federal agericy. Jd. at 41a

2 Upon remand, the Department of Agriculture was added

as a defendant. Gov’t C.A. Br. 21 n.6 (quoting 10/25/94 Tr. 46

(C.A. App. 318)).

n.l. Judge Wald and Judge Tatel dissented from the

denial ef rehearing en banc. Jd. at 41a.

ARGUMENT

The federal respondents disagree with the court of

appeals’ decision in this case and share many of peti-

tioner’s objections to the court’s reasoning. Never-

theless, because (i) the court of appeals’ decision was

guided by its understanding of this Court’s state-

ments regarding the Academy’s status in Public Citi-

zen Vv. Department of Justice, 491 U.S. 440 (1989), (ii)

the facts of this case do not present the most typical

interaction of Academy committees with federal

agencies, and (iii) the implications of the court of

appeals’ ruling for the federal government’s and the

Academy’s operations cannot yet be fully assessed,

review by this Court is not warranted at this time.

1. The federal respondents, like petitioner, believe

that the decision of the court of appeals is erroneous.

In Public Citizen, this Court held that the President

and the Justice Department did not “utilize” the

American Bar Association’s Standing Committee on

the Federal Judiciary (ABA Committee), within the

meaning of FACA, in making judicial appointments.

See 491 U.S. at 452-467. The Court concluded that a

literal interpretation of the term “utilized” would

extend FACA far beyond the scope intended by Con-

gress, and thus rejected the argument that an agency

“utilizes” a committee whenever it “makes use of” its

work or recommendations. Id. at 452. Instead, the

Court looked to whether the committee had been

formed “at the Federal Government’s prompting,”

received federal funds, and was “amenable to strict

management by agency officials.” Jd. at 457-458.

In this case, the Revision Committee of the Na-

tional Academy of Sciences was not formed “at the

Federal Government’s prompting.” Public Citizen,

491 U.S. at 457. To the contrary, the Academy inde-

pendently and of its own initiative chose to revise the

Guide through use of a committee process. See Pet.

App. 3a, 16a-17a, 23a. Nor was the Revision Commit-

tee subjected to “strict management by agency

officials.” Jd. at 5a (“It is indisputable that no govern-

ment agency could be thought to exercise that degree

of influence over the Guide Committee.”). Finally,

the only federal funding provided the Revision Com-

mittee came in the form of a grant to the National

Academy of Sciences. Jd. at 3a. FACA, however, does

not apply to advice provided pursuant to a government

contract. See Food Chemical News v. Young, 900

F.2d 328 (D.C. Cir.) (FACA does not apply to private

government contractor), cert. denied, 498 U.S. 846

(1990).

2. Notwithstanding the considerations just dis-

cussed that weigh against a holding that federal

agencies “utilized” the Revision Committee, we do

not urge the Court to grant review.

a. The court of appeals considered itself bound by

this Court’s prior statements regarding the Acad-

emy’s status in Public Citizen. See Pet. App. 5a-7a,

8a (“[W]e are in no position, hierarchically, to reject

the [Supreme] Court’s approach.”), 10a. In Public

Citizen, this Court repeatedly contrasted the ABA

Committee with committees created by the Academy,

which the Court characterized as the “paradigmatic

example of a committee ‘utilized’ by an agency.” 491

USS. at 460.2 The Court noted that such committees,

unlike the ABA Committee, were “established by a

quasi-public organization ‘in receipt of public funds.”

Ibid. The Court then quoted a passage from a House

Report that was prepared prior to the Congress in

which FACA was enacted, which stated that “Tal

great number” of Academy committees “possibly

should be added to” the list of then-existing advisory

committees because “the [Academy] committees fall

within the intent and literal definition of advisory

committees under Executive Order 11007.” Id. at 460

n.11 (quoting H.R. Rep. No. 1731, 91st Cong., 2d Sess.

15 (1970)). Executive Order No. 11,007 (3 C.F.R. 573

(1959-1963)), to which the House Report referred,

governed the operation of advisory committees prior

to FACA’s enactment and served as the lodestar in

the Court’s opinion for articulating when an agency

“utilizes” a committee within the meaning of FACA.

See, e.g., Public Citizen, 491 U.S. at 457.4

3 The Academy, however, was not a party to the Public

Citizen case, and the Court’s statements were made without the

benefit of full briefing on the Academy’s status.

* As the earlier House Report observed, most Academy

committees were not reported by federal agencies as advisory

committees under Executive Order No. 11,007. See 491 U.S. at

460 n.11 (quoting H.R. Rep. No. 1731, supra, at 15). To the

extent that the definition of an advisory committee in FACA

was intended to incorporate the scope of Executive Order No.

11,007 (see 491 U.S. at 457, 460, 462-463), the practice under

that Order cuts against finding that Academy committees are

covered by FACA.

Public Citizen also noted that the Senate Report on the

Senate version of the FACA bill described the committees that

would have been covered, beyond those established by an

agency, as “groups organized by, or closely tied to, the Federal

Government, and thus enjoying quasi-public status,” such as

Public Citizen also discussed the lack of evidence

in the Conference Report that private groups should

be swept within FACA’s terms, in contrast to com-

mittees “formed * * * by quasi-public organizations

whose opinions the Federal Government sometimes

solicits.” Public Citizen, 491 U.S. at 462. The Court

then concluded that

[t]he phrase “or utilized” therefore appears to

have been added simply to clarify that FACA

applies to advisory committees established by the

Federal Government in a generous sense of that

term, encompassing groups formed indirectly by

quasi-public organizations such as the [Academy]

“for” public agencies as well as “by” such

agencies themselves.

Ibid.; see also id. at 462-463. That construction of

“utilized,” the Court continued, would comport with

what it found to be the legislative intention to include

committees “whether those groups were established

by the Executive Branch or by statute or whether

they were the offspring of some organization created

or permeated by the Federal Government.” Jd. at 463.

The Court determined, however, that the ABA

Committee was not “utilized” because it was not

formed by an agency “or by some semiprivate entity

“committees of the national academies where they are utilized

and officially recognized as advisory to the President, to an

agency, ortoa Government official.” 491 U.S. at 461 (quoting

S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972)). The Senate de-

finition was rejected, however, in favor of the House version,

which, inter alia, was not intended to apply to organizations

having a contractual relationship with an agency. H.R. Conf.

Rep. No. 1403, 92d Cong., 2d Sess. 9-10 (1972); see generally

Lombardo, 397 F. Supp. at 797-800.

the Federal Government helped bring into being.”

Ibid.’

A grant of a writ of certiorari is thus not warranted

in this case on the ground that the court of appeals

disregarded or failed to apply this Court’s precedents.

At the same time, we do not believe that the court’s

discussion of the legislative materials in Public Citi-

zen must be read to embrace as broad a group of

Academy committees as the court of appeals’ decision

apparently does. Nevertheless, if this Court contin-

ues to believe, in accord with the statements in Pub-

lic Citizen, that a significant number of Academy

committees are “utilized” by federal agencies within

the meaning of FACA, then review by this Court is

unnecessary. Only if this Court were prepared funda-

mentally to reconsider its statements about the Acad-

emy, based on a more complete presentation of the

issue than was before the Court in Public Citizen,

would review be warranted.

b. In a number of ways, moreover, this case is not

representative of how federal agencies most com-

monly interact with the Academy. For that reason, it

might not provide the most appropriate vehicle for a

full-scale reconsideration of Public Citizen’s state-

ments regarding the status of Academy committees

under FACA. First, in this case, no agency sought

® The concurring Justices (Justice Kennedy, joined by the

Chief Justice and Justice O’Connor) did not dispute the

majority’s view that the term “utilized” embraced committees

“formed indirectly by quasi-public organizations such as the

National Academy of Sciences,” but would have endorsed a

more expansive construction of the term that would have

reached the ABA Committee. Public Citizen, 491 U.S. at 482.

The concurring Justices ultimately agreed with the judgment

on constitutional grounds. Jd. at 482-489.

out the Academy’s advice. To the contrary, the Acad-

emy approached HHS and the Department of Agricul-

ture with an unsolicited request for a grant to cover

the costs of the Revision Committee’s work. Pet.

App. 17a, 21a-23a. As the Academy’s petition notes

(Pet. 2, 7-8), the more common practice is for federal

agencies affirmatively to call upon the Academy for

advice and reports. While the fact that the govern-

ment agencies did not initiate or seek out the commit-

tee’s advice in this particular case underscores the

erroneousness of the court of appeals’ ruling, those

circumstances do not arise with sufficient frequency

to merit review in their own right.

Petition. also contends (Pet. 11-13) that Congress

did not intend for the term “utilized” to embrace

government contracts. We agree with that reading of

FACA. See also Food Chemical News v. Young,

supra. This case, however, involves a grant agree-

ment, not a government procurement contract. Com-

pare 31 U.S.C. 6303(1) (agency enters into a procure-

‘ ment contract when the “principal purpose” of the

funding is to acquire research services “for the direct

benefit or use of the United States Government”)

with 31 U.S.C. 6304(1)-(2) (agency provides a grant

when the “principal purpose” of the research is to

benefit the general public interest and when “sub-

stantial involvement is not expected between the

executive agency and the * * * recipient when

carrying out the [grant] activity”); see also Forsham

v. Harris, 445 U.S. 169, 180 (1980). Although procure-

ment contracts and grant agreements are similar in

many respects and receive similar treatment under

some federal laws (see, e.g., Henke v. Department of

Commerce, 88 F.3d 1445, 1449-1453 (D.C. Cir. 1996)),

the rules and regulations governing the administra-

SS aE

tion of grants and procurement contracts are dis-

tinct.®

c. There is no conflict in the courts of appeals on

the standard to be applied in determining generally

whether a federal agency has “utilized” a committee

within the meaning of FACA. The standard that the

D.C. Circuit has applied to identify “utilized” commit-

tees, outside the context of Academy committees, is

correct and consistent with Public Citizen, and has

proved workable. See Washington Legal Found. v.

United States Sentencing Comm’n, 17 F.3d 1446

(D.C. Cir. 1994); Food Chemical News, supra. Nor is

there a circuit conflict on whether a committee

established by a federally chartered corporation or

“quasi-public” entity is subject to FACA. The deci-

sion below is the only court of appeals ruling on that

issue thus far. Because the vast majority of FACA

litigation and litigation against the Academy arises

within the D.C. Circuit, however, the lack of a circuit

conflict does not weigh strongly against further

review. '

6 See generally 48 C.F.R. Parts 3, 9, 24, 35, 303, 309, 324

(regulating government contractors); 45 C.F.R. Part 74 (regu-

lating grant recipients).

7 Unlike Public Citizen, 491 U.S. at 465-467, this case pre-

sents no important constitutional question that would inde-

pendently merit this Court’s consideration, even in the absence

of a circuit conflict. The Academy asserts a potential First

Amendment right of association in its petition. Pet. 11 n.4.

That argument was not raised below and was not addressed by

the court of appeals. Ordinarily, “[i]t is this Court’s practice to

decline to review those issues neither pressed nor passed upon

below.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224

(1990) (plurality opinion); see also Taylor v. Freeland & Kronz,

503 U.S. 638, 645-646 (1992).

d. Finally, review by this Court would be prema-

ture because the implications of the court of appeals’

decision for agency operations have not yet fully

crystallized. In response to the government’s and the

Academy’s petitions for rehearing, Judge Silberman

indicated that some of FACA’s provisions would not

apply to Academy committees. See Pet. App. 41a n.1.

Further clarification of whether and how FACA’s

provisions apply to various Academy committees may

thus mitigate some of the operational concerns voiced

in the Academy’s petition (e.g., Pet. 6). For example,

petitioner correctly notes (Pet. 21) that, in light of

the court of appeals’ decision in this case, one district

court has enjoined a federal agency from relying upon

the work product of an Academy committee. Natural

Resources Defense Council, Inc. v. Curtis, No. 97-

0308 (PLF) (D.D.C. Aug. 6, 1997). The government is

currently appealing that injunction, however, because

it is inconsistent with FACA’s language, legislative

history, and purpose, and is in conflict with the

rulings of almost every court that has addressed the

question, including prior decisions of the D.C. Cir-

cuit.* The practical effects of the court of appeals’

8 See, e.g., National Nutritional Foods Ass’n v. Califano,

603 F.2d 327, 336 (2d Cir. 1979); Northwest Forest Resource

Council v. Espy, 846 F.Supp. 1009, 1014-1015 (D.D.C. 1994);

Center for Auto Safety v. Tiemann, 414 F. Supp. 215, 226

(D.D.C. 1976), aff’d in part and remanded in part, 580 F.2d 689

(D.C. Cir. 1978); see also California Forestry Ass’n v. Forest

Service, 102 F.3d 609, 614 (D.C. Cir. 1996); American Petroleum

Inst. v. Costle, 665 F.2d 1176, 1189-1190 (D.C. Cir. 1981), cert.

denied, 455 U.S. 1034 (1982); Metcalf v. National Petroleum

Council, 553 F.2d 176, 181 n.53 (D.C. Cir. 1977); ef. Physicians’

Educ. Network, Inc. v. Department of Health, Educ. & Wel-

fare, 653 F.2d 621, 623-624, 626-627 (D.C. Cir. 1981); Idaho

Farm Bureau Federation v. Babbitt, 900 F. Supp. 1349, 1364-

decision thus can be ascertained only as the Academy

and federal agencies assess their operating proce-

dures in light of that decision, and as the court of

appeals is given the opportunity to clarify the scope

and impact of its ruling.

We appreciate and share the Academy’s interest in

ensuring separation and independence between the

Academy and federal agencies and in preserving the

integrity of its processes. We do not, however, concur

in the Academy’s assertion (e.g., Pet. 6-7) that the

presence of a government employee at meetings must

compromise the quality, independence, or objectivity

of the Academy’s work. Government scientists and

other experts have frequently offered distinguished

service to Academy committees, with none of the

untoward consequences that the Academy predicts.

Indeed, as initially constituted, the committee in this

case included an HHS employee. See note 1, supra.

The Academy also invited six federal agency officials

to its first meeting. Pet. App. 17a; see also id. at 25a-

26a. Petitioner’s concerns about the prospective

impact of interaction with federal employees on its

operations are thus premature.

1367 (D. Idaho 1995). But see Alabama-Tombigbee Rivers Coali-

tion v. Department of Interior, 26 F.3d 1108 (11th Cir. 1994),

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.