[00:00:03] Speaker 00: Case number 19-5104, Decisions for Social Responsibility NL Appellant versus Andy Wheeler, Administrator, U.S. [00:00:12] Speaker 00: Environmental Protection Agency and his Official Capacity. [00:00:15] Speaker 00: Mr. Gormley for the Appellants, Mr. Sandberg for the Appellate. [00:00:24] Speaker 00: Good morning. [00:00:28] Speaker 01: Good morning. [00:00:32] Speaker 01: Neil Gormley for the appellants. [00:00:34] Speaker 01: May it please the court. [00:00:36] Speaker 01: This is a challenge to an EPA directive that prohibits scientists who receive EPA research grants from serving on EPA scientific advisory committees. [00:00:46] Speaker 02: A directive to whom? [00:00:49] Speaker 01: It's a directive really to EPA staff, but it imposes a requirement, Judge Ginsburg. [00:00:56] Speaker 01: By its plain terms, it imposes a requirement, and it directs that that requirement shall be applied [00:01:02] Speaker 01: Again, using mandatory language in the administration of EPA's scientific advisory committee. [00:01:07] Speaker 02: Right, so the administrator telling the staff what the policy is he wants them to follow. [00:01:15] Speaker 02: You always characterize it as a regulation, but it seems to me it's just an internal directive within the executive branch telling people what to do to the extent consistent with law. [00:01:28] Speaker 01: Well, Judge Ginsburg, it imposes a mandatory requirement, and although it is directed to EPA staff, EPA staff understood that they were obligated to impose this new requirement. [00:01:38] Speaker 02: I understand that, just as OMB is obligated to accept draft regulations from other agencies under an executive order. [00:01:44] Speaker 04: So how would you distinguish a regulation? [00:01:48] Speaker 01: I'm sorry, Judge Rogers? [00:01:50] Speaker 04: Well, Judge Ginsburg has posed to you this is just a policy directive to staff. [00:01:54] Speaker 04: How would you distinguish a regulation? [00:01:57] Speaker 01: A regulation imposes obligations. [00:02:00] Speaker 04: That is the... On? [00:02:04] Speaker 04: Finish your sentence? [00:02:05] Speaker 04: Well, in this case... On staff to impose on the regulated public. [00:02:11] Speaker 01: Correct? [00:02:12] Speaker 01: That's exactly right. [00:02:13] Speaker 04: All right. [00:02:14] Speaker 04: So, what did EPA do procedurally here? [00:02:22] Speaker 01: EPA procedurally adopted a directive that is binding on EPA staff, and EPA then applied that requirement as binding against the scientists on EPA's advisory committees. [00:02:36] Speaker 01: We know that these scientists were ejected from the committees for noncompliance with the requirement articulated in the directive. [00:02:45] Speaker 01: And the reason why that's unlawful, I'd like to address three reasons why that's unlawful this morning. [00:02:51] Speaker 02: The directive also says we want to have more people from state, local, and tribal governments, right? [00:02:59] Speaker 02: That's correct. [00:03:00] Speaker 02: Anything unlawful about that? [00:03:01] Speaker 01: We're not challenging the other provisions of the directive, Judge Ginsburg. [00:03:04] Speaker 02: I understand that, but it's a zero sum, right? [00:03:08] Speaker 02: Committees can be only so a bit large. [00:03:10] Speaker 02: They want to have more people from the public sector. [00:03:12] Speaker 02: They're going to have fewer from the [00:03:14] Speaker 02: from other sectors, academic and industry. [00:03:17] Speaker 01: It's certainly right that EPA has discretion in the management of its committees. [00:03:21] Speaker 01: But what EPA doesn't have discretion to do is to adopt an ethical requirement that's inconsistent with the regulations established for the entire executive branch by OGE. [00:03:31] Speaker 02: So when they want to have geographical diversity, I guess you'd say that's not an ethical regulation? [00:03:36] Speaker 01: That's correct, Judge Ginsburg. [00:03:38] Speaker 02: And this is why? [00:03:39] Speaker 01: This is an ethical regulation because it [00:03:43] Speaker 01: prohibits these individuals from holding a financial interest on the grounds that it's a conflict of interest. [00:03:49] Speaker 01: And EPA doesn't dispute that this directive was motivated by the administrator's view that these ethics, that these agency grants create a conflict of interest. [00:04:02] Speaker 01: And that's contrary to the OGE regulations, which are binding on EPA. [00:04:06] Speaker 02: And not only are the OGE regulations... What does it say that is inconsistent with the OGE regulations? [00:04:15] Speaker 01: The OGE regulations specifically address the financial interests of advisory committee members. [00:04:22] Speaker 02: I understand that. [00:04:23] Speaker 02: And they deal with what an agency can do [00:04:26] Speaker 02: by way of regulation to vary or not vary from that or work with OGE to issue a regulation, right? [00:04:33] Speaker 02: That's correct. [00:04:34] Speaker 02: This isn't a regulation. [00:04:36] Speaker 02: I'm sorry? [00:04:37] Speaker 02: This isn't a regulation. [00:04:39] Speaker 02: This is... If this isn't a regulation, then you're through, right? [00:04:46] Speaker 02: If it's not a regulation. [00:04:48] Speaker 01: No, Judge Ginsburg, review would still be available of whether this was arbitrary and capricious. [00:04:54] Speaker 01: And there are standards that this court can apply in determining whether this directive was lawful and also whether it was arbitrary and capricious. [00:05:05] Speaker 01: Both the OGE regulations and the regulations adopted by the General Services Administration under FACA direct EPA to apply the OGE regulations in the management of their committees. [00:05:18] Speaker 01: And in addition, there's other law to apply here. [00:05:22] Speaker 02: To apply OGE regulations in the management of the committee. [00:05:26] Speaker 02: And what regulation have they not applied? [00:05:31] Speaker 01: They've not applied the standards of conduct that specifically provide that this financial interest is not a disqualifying conflict. [00:05:40] Speaker 01: OGE has addressed [00:05:42] Speaker 01: the receipt of agency grants by advisory committee members and determine that they should not be disqualifying. [00:05:56] Speaker 03: is free as long as it goes through proper procedures, that's your theory, to impose either higher or lower standards, correct? [00:06:05] Speaker 01: Certainly Judge Tatel, EPA does have authority, limited authority, under the ethics regulations to adopt supplemental ethics rules, but it has to do that. [00:06:17] Speaker 03: So when you say in the brief that [00:06:26] Speaker 03: You say that EPA, quote, must prohibit what ethics rules prohibit and allow what they allow. [00:06:39] Speaker 03: That's what you say in your brief. [00:06:42] Speaker 03: But that's not right, is it? [00:06:44] Speaker 03: Because EPA, as you can see in the procedural part of your brief, EPA can change, can impose its own rules as long as it [00:06:53] Speaker 03: according to your theory, does it in coordination with the ethics office, right? [00:06:59] Speaker 01: This would be a very different case if EPA had gone through the supplemental agency regulation process. [00:07:05] Speaker 03: No, I'm just asking you about this sentence in your brief. [00:07:08] Speaker 03: You say it's contrary to law because EPA must prohibit what the ethics office rules prohibit and allow what they allow. [00:07:17] Speaker 03: And I'm asking you whether that's in fact correct. [00:07:20] Speaker 01: That's correct because that's correct Judge Tatel. [00:07:23] Speaker 01: Why? [00:07:23] Speaker 01: Because the OGE regulations provide that agency regulations must be consistent with OGE's regulations. [00:07:31] Speaker 03: Right, but it could still issue different but yet consistent regulations, right? [00:07:37] Speaker 03: I mean, for example, suppose it issued a standard which slightly refined [00:07:47] Speaker 03: what it meant by grants or what it meant by not participate. [00:07:53] Speaker 03: Suppose, for example, it felt it needed to identify a little more precisely the difference between issues on which a university scientist with an EPA grant had to recuse herself from and those she didn't know, wanted to refine that rule. [00:08:15] Speaker 03: Could do that, right? [00:08:17] Speaker 01: It could do that using the supplemental ethics process. [00:08:20] Speaker 03: That's right. [00:08:21] Speaker 03: OK. [00:08:26] Speaker 03: So then I understood your argument actually to be focused primarily on your view that the agency here never acknowledged its change in position and never explained why it was [00:08:43] Speaker 03: adopting a rule that allowed, that excluded from advisory committees individuals who could serve prior to this, right? [00:08:52] Speaker 03: Isn't that, that's your argument, right? [00:08:54] Speaker 01: We have, we have several arbitrary and capricious arguments Judge Tatel and that's one of them and I'd like to address that. [00:09:01] Speaker 01: never acknowledged that it was reversing its own prior policy, which was the opposite to the policy adopted in the directive. [00:09:10] Speaker 01: And EPA also never even considered the expert judgment of the Office of Government Ethics that these grants should not be disqualifying. [00:09:20] Speaker 01: And on both of those bases, EPA's directive is arbitrary and capricious. [00:09:26] Speaker 02: When you say the administrative didn't acknowledge that this was a change in policy, is that what you're saying? [00:09:31] Speaker 02: That's correct. [00:09:32] Speaker 02: He says he wants to improve and strengthen things, that previously this was not a disqualifying credential. [00:09:40] Speaker 02: How can that not be obviously acknowledging that he's doing something, adding new criteria? [00:09:45] Speaker 01: You're right, Judge Ginsburg, that EPA argues that it's sufficient to simply announce the new criteria, but that's not sufficient under this court's precedent. [00:09:52] Speaker 02: If they had said henceforth, would that make a difference? [00:09:55] Speaker 02: It's clear that they're doing something new, right? [00:09:58] Speaker 01: This court's precedents require an agency that's reversing course to acknowledge the conflict with the prior policy, not to gloss over it. [00:10:06] Speaker 01: And they require agencies to rationally address the conflict. [00:10:10] Speaker 04: Well, you want to improve it. [00:10:11] Speaker 04: All right. [00:10:11] Speaker 04: So then your point is, well, it didn't say why. [00:10:14] Speaker 04: What's wrong with the current policy? [00:10:17] Speaker 01: That's exactly right. [00:10:17] Speaker 04: Well, why hasn't it worked? [00:10:19] Speaker 04: That's exactly right. [00:10:20] Speaker 01: EPA failed to rationally address why the prior policy, which is in accordance with OGE's expert view, wasn't working, why it should change. [00:10:31] Speaker 01: And EPA also failed to explain why it was reversing its prior considered view, that it was important [00:10:39] Speaker 01: that these grantees be eligible to serve on EPA's advisory committees because of their expertise in the particular scientific issues that EPA has to deal with. [00:10:51] Speaker 01: That had been EPA's consistent prior position. [00:10:54] Speaker 01: And EPA continues to agree that it's important that [00:10:59] Speaker 01: its scientific committees have sufficient expertise, but EPA never addressed its prior view that excluding these grantees would be a bad idea, precisely because they have this expertise. [00:11:13] Speaker 03: I have two questions for you. [00:11:21] Speaker 03: On your procedural argument, that is that they adopted this without going through the procedures for issuing supplemental regulations or supplemental statements, what do you do with the provision of the regulation that says the violation of this part or supplemental regulations does not create any right or benefit in force of the law? [00:11:46] Speaker 03: The agency says that means we can't review this. [00:11:50] Speaker 01: Right, and that's wrong for two reasons, Judge Sadel. [00:11:52] Speaker 01: The first is that OGE does not have authority to preclude judicial review by regulation. [00:11:59] Speaker 01: This court's cases are clear, including Balbal and Brosimer and De Jesus Ramirez, are clear that in order to preclude review of a violation of law as this is, there must be clear indicia of congressional intent to preclude review, and there is no indicia [00:12:19] Speaker 01: congressional intent to empower OGE to preclude review under the APA here. [00:12:25] Speaker 01: The other reason why... Why couldn't you just read that? [00:12:27] Speaker 03: Wouldn't another response be that what this is doing is [00:12:36] Speaker 03: prohibiting, say for example, what this would do, this would prohibit, for example, an individual scientist excluded from a FACA, from an advisory committee, from suing. [00:12:50] Speaker 03: But there's nothing in it that says it precludes, setting aside your point that an agency couldn't itself preclude an APA challenge. [00:13:00] Speaker 03: It just doesn't talk about APA challenges here. [00:13:02] Speaker 03: They're not suing for their seats. [00:13:04] Speaker 03: They're arguing that the [00:13:06] Speaker 03: that the directive is arbitrary and capricious. [00:13:10] Speaker 01: That's exactly right, Judge Tatel. [00:13:13] Speaker 03: Do you know of any authority for that? [00:13:15] Speaker 03: Has any court interpreted this to suggest that it means what I say? [00:13:21] Speaker 01: The U.S. [00:13:22] Speaker 01: District Court in D.C. [00:13:23] Speaker 01: in the Laureard opinion addressed this issue, and that decision was reversed on other grounds, on standing ground. [00:13:30] Speaker 03: But they did say that this is limited to sort of individual cases brought by individuals? [00:13:34] Speaker 01: They did. [00:13:35] Speaker 01: They essentially adopted your reading, Judge Tatel. [00:13:38] Speaker 01: And we think that's the correct reading, particularly in light of the strong presumption. [00:13:42] Speaker 03: We didn't reverse that. [00:13:44] Speaker 03: We reversed it for other reasons. [00:13:46] Speaker 03: Is that what you said? [00:13:47] Speaker 01: On standing grounds, Judge. [00:13:48] Speaker 01: Oh, I see. [00:13:50] Speaker 03: So here's my second question. [00:13:52] Speaker 03: The amicus brief that the states filed, it says that academic representation fell 40% as a result of this directive, and that industry representation tripled. [00:14:06] Speaker 03: Is that reflected in the record of the case? [00:14:11] Speaker 01: We're here on a motion to dismiss Judge Seidel, so the actual impact on these committees is not really fleshed out in the record. [00:14:20] Speaker 03: Okay, but what about allegations? [00:14:22] Speaker 03: Because motion to dismiss, we have to accept allegations as true. [00:14:25] Speaker 03: Are there any allegations in either the complaint or the declarations which support this? [00:14:33] Speaker 01: not as to the exact number, but certainly as to the impact that this is going to have a serious impact on the operations of these advisory committees, that it's going to exclude a large number of individuals, and that it's going to skew the membership of these committees, and that EPA failed to consider any of those impacts, and therefore failed to rationally address its own prior policy and the consequences of the new policy that it was adopting. [00:15:03] Speaker 02: document supporting the prior policy? [00:15:06] Speaker 01: Yes, Judge Ginsburg. [00:15:07] Speaker 01: The peer review handbook that EPA, that is referenced in our complaint, expressly recites EPA's prior policy, that the receipt of agency grants was not a conflict of interest. [00:15:24] Speaker 01: Does it give a reason? [00:15:27] Speaker 01: Yes, both in addition to referencing the OGE standard, which EPA prior [00:15:35] Speaker 01: previously followed, it also says that the competitive peer review process by which EPA's grants are awarded means that the risk of a conflict of interest, that's a separate process. [00:15:48] Speaker 01: And EPA recognized that the risk of a conflict of it, that the advisory committees would have no ability to corrupt that process. [00:15:58] Speaker 01: The peer review process by which EPA grants are awarded is a separate [00:16:03] Speaker 01: is a separate process. [00:16:04] Speaker 02: So the peer review handbook, is that directed towards simply the award of grants? [00:16:13] Speaker 01: No, it also addresses whether EPA's advisory committees should welcome the participation of EPA grantees, and it says that they should. [00:16:29] Speaker 01: I'd like to reserve the remainder of my time for rebuttal. [00:16:33] Speaker 01: Thank you. [00:16:44] Speaker 06: Good morning and may it please the court. [00:16:46] Speaker 06: Jeff Sandberg for the United States. [00:16:49] Speaker 06: The district court correctly concluded that there's no legal basis to set aside EPA's policy here. [00:16:54] Speaker 06: As my opposing colleague acknowledged, the EPA has broad discretion in choosing who it wants as its advisors, and so my opposing colleague is focused on the assertion that the federal ethics regime provides a law to apply that constrains the agency's discretion here. [00:17:11] Speaker 06: And that's a fairly basic misconception. [00:17:15] Speaker 06: Federal ethics rules are a code of conduct that apply to people who have come on board to federal service, and they specify which particular matters a person can or can't participate in. [00:17:25] Speaker 06: Federal ethics laws don't tell agencies who they can or can't hire. [00:17:30] Speaker 03: The district court in this case got it most... That's not the issue here. [00:17:34] Speaker 03: They're not... I mean, in fact, reading your brief, one would think that what the plaintiffs are charging here [00:17:41] Speaker 03: they're arguing about the selection of individuals to serve on committees. [00:17:47] Speaker 03: That's the way your brief reads, but that isn't their argument. [00:17:49] Speaker 03: In fact, they abandoned that argument, as best I can tell. [00:17:52] Speaker 03: Their argument is that this directive [00:17:55] Speaker 03: conflicts with binding ethics regulations. [00:17:59] Speaker 03: That's their argument. [00:18:00] Speaker 03: It has nothing to do with picking or not picking particular persons. [00:18:05] Speaker 06: That's their argument. [00:18:07] Speaker 06: My understanding of their argument, and I hope they would agree, is that EPA, when it is choosing members, cannot have a policy of excluding people because they are in receipt of an EPA grant, because they believe that that is a violation of federal ethics law. [00:18:21] Speaker 06: And what I'm saying is federal ethics law does not speak [00:18:24] Speaker 06: to what qualifications a person has when an agency is considering them for service. [00:18:30] Speaker 06: Judge Chaito, you asked about the supplemental regulation process before. [00:18:33] Speaker 03: Before you get to that, let me just ask you. [00:18:38] Speaker 03: The regulation says, the GSA regulation says the head of each agency that establishes or utilizes an advisory committee [00:18:52] Speaker 03: quote, must assure, must assure that the interests of advisory committees are reviewed for conformance with applicable conflict of interest statutes. [00:19:05] Speaker 03: Why isn't that the law to apply? [00:19:07] Speaker 03: I mean, you still may be right that it complies with that, but isn't that the law that we apply here? [00:19:14] Speaker 06: I think that's absolutely right. [00:19:15] Speaker 06: If we were here on an allegation that EPA is allowing someone to serve on an advisory committee that has a conflict of interest, this court could absolutely say that is a law to apply. [00:19:25] Speaker 06: This person can't serve with a conflict of interest. [00:19:27] Speaker 06: But we're not talking here about [00:19:29] Speaker 06: individual people in particular matters, conflict of interest. [00:19:33] Speaker 06: We're talking about EPA's discretion to choose who it wants for its committees. [00:19:36] Speaker 03: No, I understand that, but under the ethics rules, tell me if this is not the right way to read them, the ethics rules say special employees can serve on advisory committees, so long as they don't make any judgments about their individual grants, correct? [00:19:54] Speaker 06: That's right. [00:19:55] Speaker 03: Now, EPA is saying no special employees can serve at all. [00:20:01] Speaker 06: But not as a matter of federal ethics law. [00:20:03] Speaker 06: Your Honor, you were talking before about the supplemental agency regulation. [00:20:08] Speaker 06: You know, if EPA had gone to OGE here saying we want to promulgate this as a supplemental agency regulation, it's quite... Do you have the directive there in front of you? [00:20:17] Speaker 06: I do, yes. [00:20:18] Speaker 03: Okay, it says non-governmental [00:20:21] Speaker 03: and non-tribal members into requisite of EPA grants can create the appearance, I'm reading from your own directive. [00:20:29] Speaker 03: That's right. [00:20:29] Speaker 03: Can create the appearance or reality of a conflict of interest. [00:20:34] Speaker 06: No, that's not what it says. [00:20:35] Speaker 06: It says, may create interference with their ability to independently serve. [00:20:39] Speaker 06: There's a difference between independence and conflicts of interest. [00:20:41] Speaker 03: Conflicts of interests are about... No, but I don't mean to... The ethics rule says... Now, by the way, you and I are now arguing about... We've moved on to accepting, maybe you haven't done this, accepting the idea that the GSA regulation does apply a standard. [00:21:01] Speaker 03: It does include a standard. [00:21:02] Speaker 03: Not for this case. [00:21:03] Speaker 03: Okay, but it says, it says, can create the appearance or reality to independently and objectively serve. [00:21:11] Speaker 03: That's what it says, right? [00:21:12] Speaker 03: Independently serve. [00:21:14] Speaker 03: Well, the ethics regulations that have been issued pursuant to this say that scientists with EPA grants can independently serve, so long as they don't make any decisions regarding their individual grant. [00:21:29] Speaker 06: No, what those say is that there's no conflict of interest. [00:21:33] Speaker 06: One of the documents that my opposing colleague relies on as well is an EPA OIG report from 2013 that specifically distinguishes between independence from the agency and conflicts of interest. [00:21:43] Speaker 06: Conflicts of interest generally are about people's outside, you know, financial holdings, spousal employment, things that might skew them based on their outside activities in the world. [00:21:52] Speaker 06: And, you know, we're all walking talking conflicts of interest here. [00:21:54] Speaker 06: I have a spouse, he has employment. [00:21:56] Speaker 06: I have financial holdings. [00:21:58] Speaker 06: Ethics rule doesn't say no one can serve on a committee. [00:22:01] Speaker 06: It just says once you serve, you have to recuse from things that you have conflicts on. [00:22:05] Speaker 03: Independence is a- Can you just look at the language here we're looking at? [00:22:07] Speaker 03: Yes. [00:22:08] Speaker 03: People who have grants, quote, can create the appearance and reality of potential interference with their ability to independently serve. [00:22:24] Speaker 03: that all about whether the grant from EPA affects their ability to independently serve? [00:22:30] Speaker 06: Yes, but again, independence is different than conflict of interest. [00:22:33] Speaker 03: Explain that to me. [00:22:34] Speaker 06: That I understand. [00:22:36] Speaker 06: So as plaintiffs have taken pains to emphasize, this case is about scientific peer review committees, right? [00:22:41] Speaker 06: They exist. [00:22:43] Speaker 06: EPA has put together a scientific proposal, like we're going to lower [00:22:46] Speaker 06: the standard for carbon monoxide in the air from nine parts per million over an eight hour period to some lower figure. [00:22:51] Speaker 06: And they submit this to an outside independent body to review the science and see whether they've done a good job or not. [00:22:56] Speaker 06: And so EPA's interest is in having a body that is perceived as independent from the agency to provide a check on that. [00:23:04] Speaker 06: And then that's abused to the agency where if the regulation is challenged down the road in litigation, EPA can say, look, these outside people who we normally have no dealings with have looked at the science and said, [00:23:14] Speaker 06: It's A-OK. [00:23:15] Speaker 06: Just taking a step back, generally, that's what peer review is about. [00:23:17] Speaker 06: In the academic context, the fact that someone doesn't have a financial conflict of interest doesn't mean that you should peer review if you sit next door to the person and hang out in the cafeteria with them. [00:23:26] Speaker 06: You want someone independent to provide that. [00:23:31] Speaker 03: But I still don't understand the difference between [00:23:35] Speaker 03: Suppose we have two different scientists from the same university. [00:23:40] Speaker 03: One has an EPA grant and the other doesn't, right? [00:23:45] Speaker 03: The one without it can serve, correct? [00:23:48] Speaker 06: That's right. [00:23:49] Speaker 03: But the one with it can't. [00:23:51] Speaker 03: Under this particular box. [00:23:55] Speaker 03: Isn't the concern about independence directly related to the grant? [00:24:01] Speaker 03: And that issue is what's dealt with in the ethics rules. [00:24:05] Speaker 03: The ethics rules say people with grants can serve so long as they recuse themselves. [00:24:11] Speaker 03: So I still do not understand how independence is different from [00:24:16] Speaker 06: A single fact in the world can be relevant to two different legal inquiries. [00:24:19] Speaker 06: There's a conflict of interest inquiry which is enforced through criminal sanctions if it's a statutory violation or civil penalties. [00:24:26] Speaker 06: And there's administrative remedies for violations of Part 2635. [00:24:30] Speaker 06: But what I'm asking Your Honor to do is deposit for a moment [00:24:33] Speaker 06: that there's a part of the world to which federal ethics rules apply and it is to employees who have entered federal service. [00:24:39] Speaker 06: And then there's a separate set of legal rules that apply to the decisions that agencies can make and about how to staff their committees. [00:24:46] Speaker 06: Obviously they can't do anything unconstitutional. [00:24:49] Speaker 06: There are rules about nepotism and so forth. [00:24:51] Speaker 06: We're talking about a different set of rules that apply to who an agency can appoint to its committee. [00:24:56] Speaker 06: And the agency here is focused on staffing a body that is, by design, the very purpose of it, is to be independent. [00:25:03] Speaker 06: And we can argue, we can have policy disagreements about whether this is a good or bad policy, but it's not a federal ethics rule. [00:25:09] Speaker 04: So it doesn't matter what the ethic rule says about whether I as a scientist at an academic institution hold an EPA grant. [00:25:22] Speaker 06: Well, I mean, the agency is bound by federal ethics rules. [00:25:25] Speaker 06: It absolutely matters. [00:25:26] Speaker 06: It can't allow someone to participate in a particular matter on an advisory committee if that person has a conflict of interest. [00:25:31] Speaker 06: But EPA's choice of whether they want only people with the highest degree in their field, or only people who published research recently, or only people who can commit to four years of service, or only people who aren't currently in a financial relationship with the agency, all of those things are not federal ethics concerns. [00:25:45] Speaker 04: I think you can say that. [00:25:48] Speaker 04: And we're just having trouble, as Judge Taylor uses the word, translating [00:25:52] Speaker 06: And to be fair, I think the district court had some trouble, too, because the district court said, although it ruled in our favor, look, I think that the federal ethics laws provide a floor but not a ceiling here. [00:26:02] Speaker 06: The federal ethics laws don't even really provide a floor here. [00:26:04] Speaker 06: They don't speak to who the agency can choose to serve on its committees. [00:26:07] Speaker 06: There's a different body of law that deals with that. [00:26:10] Speaker 04: But what I'm getting at is, as a general matter, a person, the president, for example, can pick who he wants to have serve in his cabinet. [00:26:23] Speaker 04: There may be certain laws on the book that say you cannot appoint a person who has previously been convicted of two felonies involving criminal sentences of more than five years. [00:26:39] Speaker 04: So it really doesn't matter. [00:26:41] Speaker 04: That person is just not in the eligible category, no matter what the president wants to do. [00:26:49] Speaker 04: And the law that says that person [00:26:53] Speaker 04: Congress has decided it's just not a suitable person. [00:26:58] Speaker 06: So if we had a statute here where Congress had said an EPA may not consider a receipt of an EPA grant in deciding who to put on the committee, then there would be a violation of that statute. [00:27:07] Speaker 06: As it happens, the EPA directive here was a response to a very different kind of legislative initiative, which was going to ban the agency from allowing anyone to serve if they had received an EPA grant currently or [00:27:17] Speaker 06: any time in the past three years. [00:27:19] Speaker 06: And FACA is principally, the staffing of advisory committees under FACA is principally a matter for congressional oversight. [00:27:25] Speaker 06: And EPA quite reasonably might have thought, rather than have my hands tied by statute, by something that's going to be much more draconian, not allow any scientists to serve if they've had an EPA grant in the past three years, I'm going to, as a matter of policy, adopt this in this policy statement here. [00:27:40] Speaker 03: I just want to go back to something you said in response to both George Rogers and my question. [00:27:45] Speaker 03: You said, correct me if I'm wrong, [00:27:48] Speaker 03: ethics standards issued by the Office of Governmental don't deal with this issue. [00:27:53] Speaker 03: Is that what you said? [00:27:54] Speaker 06: That's right. [00:27:57] Speaker 03: Can I finish my question? [00:27:58] Speaker 06: Yes. [00:27:59] Speaker 03: So under the existing Office of Governmental Ethics, individuals who have EPA, those regulations express the state [00:28:15] Speaker 03: that individuals with grants from the agency can serve on advisory committees, correct? [00:28:23] Speaker 06: The ethics rules state that it's not a conflict of interest. [00:28:26] Speaker 03: Isn't that true? [00:28:27] Speaker 03: That's what they say. [00:28:28] Speaker 03: They say special employees can serve if they have grants. [00:28:33] Speaker 03: They can serve with their grants as long as they don't participate in decisions having to do with their grants. [00:28:38] Speaker 06: I don't think the regulations speak precisely to grants, Your Honor. [00:28:40] Speaker 06: If you want to be specific about the text, we can flip to 2640-203-G, which I believe is the exception for special government employees. [00:28:52] Speaker 06: A special government employee serving on an advisory committee within the meaning of FACA may participate in any particular matter of general applicability where the disqualifying financial interests arises from his non-federal employment. [00:29:05] Speaker 06: provided that the matter will not have a special or distinct effect on the employer. [00:29:08] Speaker 03: What is the matter? [00:29:09] Speaker 03: The matter is the grant. [00:29:12] Speaker 03: That's what they're talking about. [00:29:14] Speaker 03: They're talking about the grant. [00:29:18] Speaker 03: I read all your arguments. [00:29:19] Speaker 03: It's just sort of astounding to me that you're telling me. [00:29:23] Speaker 03: I get your argument that the agency can change it. [00:29:25] Speaker 03: I get your argument about the process. [00:29:26] Speaker 03: But what I don't get is this argument that the ethics rules don't cover this subject. [00:29:33] Speaker 03: They don't. [00:29:34] Speaker 06: In fact, as I've been trying to point out to you, sorry, as I wasn't able to say before, if the agency had gone to OGE here and said, we want to promulgate a supplemental regulation about this, my understanding is that OGE would have said, this is not covered by Part 2635. [00:29:49] Speaker 06: This is about who you're appointing in the first place to your committee. [00:29:55] Speaker 06: And also, it's important to note, conflict of interest rules don't say you can or can't serve on a committee. [00:30:00] Speaker 06: They say particular matter, as a general matter, a conflict of interest is not a reason why you would eject someone from federal service. [00:30:07] Speaker 06: It is a reason why you would recuse them off a particular matter. [00:30:11] Speaker 06: And we're here talking about what are the qualifications or considerations that the agency is going to consider in putting together an independent committee. [00:30:18] Speaker 06: And again, we can [00:30:20] Speaker 06: People can reasonably fight and plaintiffs have a reasonable argument that this isn't the best policy and different administrations have taken different course. [00:30:29] Speaker 06: But that's a matter for policy debate and not a matter for judicial review. [00:30:33] Speaker 03: Let me ask you a different question. [00:30:35] Speaker 03: Just assume for a minute, this is hypothetical, that I don't agree with you. [00:30:40] Speaker 03: That I think that this directive actually [00:30:48] Speaker 03: changes existing ethics standards. [00:30:51] Speaker 03: Let's just assume that that's what I think, okay? [00:30:55] Speaker 03: Under Supreme Court and our precedent, when an agency changes its policy like that, it has to acknowledge the change and it has to explain why it's changing it. [00:31:06] Speaker 03: So when I read this directive, where do I find that in there? [00:31:12] Speaker 03: This is hypothetical, okay? [00:31:14] Speaker 03: This assumes that the [00:31:18] Speaker 03: ethical, that the regulations issued by the Office of Governmental Ethics deal with this issue and that this is different. [00:31:26] Speaker 06: So where would I find that? [00:31:31] Speaker 06: a regulation that, let me put it this way, the very fact that this document was issued, this is a gratuitous document, agencies don't have to publish policy statements about whether you appointed their committees, they usually don't, other agencies might very well have this same policy, I don't know, they don't issue, agencies just pick people for committees, they don't normally make a fuss about it, the very fact that they made this announcement here shows that they were acknowledging a change from what they had done before. [00:31:57] Speaker 03: And so how do you distinguish that from [00:32:00] Speaker 03: from CBS versus FCC, which the plaintiffs cite in their brief. [00:32:07] Speaker 06: Right. [00:32:07] Speaker 06: So I think that really illustrates how far afield they are from what this case is, because that was an adjudication of an antitrust inquiry in which an agency was going to release confidential business information within five days [00:32:23] Speaker 06: basically setting up a situation where they had to go running for mandamus, I think, to this court. [00:32:28] Speaker 06: And the agency didn't acknowledge that they had previously had a policy of protecting that information up through judicial review. [00:32:34] Speaker 06: So we're talking there about primary conduct, facts in the world, rights of private parties. [00:32:38] Speaker 06: And the agency was issuing, it wasn't speaking because it was changing its mind. [00:32:42] Speaker 03: It was speaking because it was adjudicating. [00:32:44] Speaker 03: But we said the agency there did acknowledge, I'm quoting, did acknowledge that it was breaking from precedent. [00:32:51] Speaker 03: That is the Bureau of Knowledge's departure by departing. [00:32:55] Speaker 06: Well, the argument there was that because the agency said not X rather than X, the agency had acknowledged what it was doing. [00:33:01] Speaker 06: The agency didn't say, you know, this is a change from before. [00:33:04] Speaker 06: And what I'm telling you is this policy statement, the very fact of its issuance, as Judge Ginsburg was pointing out before, is this is different than before. [00:33:12] Speaker 06: That is why the agency is speaking. [00:33:14] Speaker 03: And so the first part of your answer is, to make sure I understand it, is that [00:33:19] Speaker 03: Of course, they've acknowledged it by issuing the directive. [00:33:22] Speaker 03: That's number one, right? [00:33:24] Speaker 03: That's right. [00:33:24] Speaker 03: And number two, again, sticking with my hypothetical, where would I find in here an explanation for why people who could serve on advisory committees the day before this was issued now no longer can? [00:33:39] Speaker 06: The explanation that was provided is in the memorandum attached to the directive. [00:33:42] Speaker 06: I agree with you that it is... [00:33:46] Speaker 06: acknowledge that it is succinct, but what I think is important to note is that agencies don't have, by statute, they don't have any obligation to set forth the reasons for what policies they have for appointing people to advisory committees or what the reasons for those policies are. [00:33:59] Speaker 03: This is all gratuitous. [00:34:01] Speaker 03: You're drifting from my hypothetical, which is, it's all based on assumption, which I concede you don't agree with, but that's why I call it a hypothetical. [00:34:10] Speaker 03: that the agency is bound by the Office of Governmental Ethics regulations until it changes. [00:34:17] Speaker 03: That's my question. [00:34:19] Speaker 06: And I suppose I'm struggling because I just think that it's a fairly fundamental problem in looking at this case. [00:34:25] Speaker 03: So you don't want it. [00:34:27] Speaker 03: But you would consider, I take it then, your answer, and I'm a perfectly fine answer, which is, look, I don't have to answer that question because there's no obligation, there's no binding [00:34:38] Speaker 03: pre-existing obligation that the agency has to explain its departure from. [00:34:41] Speaker 03: That's a perfectly acceptable, if that's your answer, you should just say that's what it is. [00:34:45] Speaker 06: I think that's right. [00:34:46] Speaker 06: I think because this is not an ethics rule, and plaintiffs are then saying, I understand plaintiffs to be saying, even if it's not an ethics rule, I still think they have to explain themselves. [00:34:55] Speaker 03: You understand that with that answer, I can only speak for myself, but if I happen to disagree with you about the premise of the question, then you lose, right? [00:35:06] Speaker 06: Well, I can't point you to a detailed, you know, if what you're looking for is something that would appear in the preamble of a final rule regulating primary conduct, I can't point you to anything in the record like that. [00:35:18] Speaker 03: How about one sentence? [00:35:22] Speaker 03: Just give me a sentence or part of a sentence that explains the difference. [00:35:28] Speaker 03: One word. [00:35:30] Speaker 06: What the record reflects is that there had been significant legislative attention to EPA staffing of its committees. [00:35:36] Speaker 06: A bill had passed the House and two successive Congresses. [00:35:39] Speaker 06: Administrator Pruitt in announcing this policy thanked Congress for its leadership on this issue and said it was adopting this policy responsive to those concerns. [00:35:46] Speaker 06: The policy that was adopted was [00:35:48] Speaker 06: was as a matter of agency discretion and was more limited than what Congress would have forced by statute. [00:35:55] Speaker 04: So you don't accept the proposition then that there are a lot of things agencies don't have to do. [00:36:01] Speaker 04: But once they voluntarily decide to put on the record that they want to do something, then they assume [00:36:15] Speaker 04: an obligation to explain why. [00:36:18] Speaker 04: I mean, if it just said we don't want any redheads on our committees, yeah. [00:36:23] Speaker 06: Judge Rogers, I agree with you to the extent that they choose to speak and they say something that is unconstitutional or so irrational. [00:36:30] Speaker 04: Or contrary to an outstanding [00:36:35] Speaker 04: or contrary to statute, and I would submit that we're in none of those situations, and instead what plaintiffs are saying is I would like... No, because if you want to talk standard in terms of statute, and I'm saying there is a standard in that although I hold a grant from EPA, I am not in any way bound [00:36:59] Speaker 06: I think the problem with saying once an agency chooses to speak, it has to anticipate every possible objection and explain why. [00:37:14] Speaker 06: This document didn't need to be issued at all. [00:37:19] Speaker 06: If courts are going to hold the agency in issuing an internal policy statement like this to the standards that apply to a final rule issued through rulemaking, the result is going to be agencies aren't going to be transparent. [00:37:32] Speaker 06: This is a public good that the agency is providing by saying what its policies are. [00:37:36] Speaker 06: Again, you can disagree about whether it's a good policy or bad policy, but they're at least telling you what they're doing. [00:37:41] Speaker 06: And if the court is going to say that the APA standards apply the same way to this kind of document as to a final rule, it would really create some perverse incentives. [00:37:49] Speaker 06: And this court has anticipated that in a decision from the [00:37:53] Speaker 06: The late eighties, there's an NTEU versus Warner, an opinion written for the court by Judge Ginsburg. [00:37:58] Speaker 06: The court said, look, even when something's not committed to agency discretion by law, which we're not conceding here, but even if it's not committed to agency discretion, the scope of review still has to be tailored to the issues involved in the case. [00:38:08] Speaker 06: And all of the cases my opposing colleagues cite are [00:38:12] Speaker 06: adjudications or rule makings of primary conduct in the world. [00:38:17] Speaker 06: And this is a policy statement about how the agency is choosing its own advisors who serve at will at the pleasure of the appointing authority. [00:38:23] Speaker 06: And so there's simply no requirement for the agency to speak in fuller detail than they did here. [00:38:30] Speaker 02: All that said, you started to, I thought, suggest that there was something in the memorandum to explain the reason for the action. [00:38:38] Speaker 06: Well, yes, Your Honor, the language is what Judge Tatel and I were discussing before. [00:38:46] Speaker 06: It states, a vital part of ensuring integrity and confidence in EPA's facts comes from guaranteeing that fact members remain independent of the agency during their service. [00:38:54] Speaker 06: One of the committees that issue here, CASAC, it's actually a statutory requirement that the committee be independent, using that word. [00:39:01] Speaker 06: EPA FACT members should avoid financial entanglements with EPA to the greatest extent possible. [00:39:06] Speaker 06: Non-governmental and non-tribal members in direct receipt of EPA grants while serving on an EPA FACT can create the appearance or reality of potential interference with their ability to independently and objectively serve as a FACT member. [00:39:17] Speaker 06: FACT members should be motivated by service and committed to providing informed and independent expertise and judgment. [00:39:22] Speaker 06: I would just note that nothing I just said mentions conflicts of interest at all. [00:39:26] Speaker 06: The next paragraph goes on to say this is in addition to policies about conflicts of interest, but this policy stands separate and apart from that. [00:39:33] Speaker 02: To go back to something earlier on, where does it appear? [00:39:42] Speaker 02: a statement that no rights or benefits are being created in some program. [00:39:49] Speaker 06: So that goes to the plaintiff's procedural challenge, and that language appears in 5 CFR 2635106C. [00:39:56] Speaker 06: I think I've gotten that right. [00:40:00] Speaker 02: Okay, but what is that? [00:40:01] Speaker 02: Where did it come from? [00:40:02] Speaker 06: So the OGE promulgated regulation. [00:40:08] Speaker 02: There's a statute 2635. [00:40:10] Speaker 02: So this is something implementing that statute. [00:40:13] Speaker 02: It's a regulation, right? [00:40:15] Speaker 06: Not exactly. [00:40:16] Speaker 06: It might take a minute or two, but I think I can get this out in a way that's responsive. [00:40:20] Speaker 06: So first there was an executive order that said we need to have uniform standards of ethical conduct. [00:40:25] Speaker 06: There's also the Ethics in Government Act that provides rulemaking authority to OGE. [00:40:30] Speaker 06: OGE acting mostly at the direction of the executive order said we're going to have uniform rules and then we're going to set up a supplemental agency regulation process because we recognize, you know, for example, that EPA, people who work in the pesticides office probably shouldn't hold stock in pesticides companies. [00:40:47] Speaker 06: That's one of EPA's supplemental agency regulations, for example. [00:40:50] Speaker 06: But what OGE said in this regulation is this is an internal housekeeping matter. [00:40:54] Speaker 06: Nothing in here is intended to create an enforceable right. [00:40:57] Speaker 06: Just as when my supervisor to my left issues me a directive to do something, if he happened to publish it in the Federal Register, it's not as though someone could sue over that. [00:41:06] Speaker 06: What OGE was trying to say is this is a housekeeping matter. [00:41:08] Speaker 06: It doesn't create any rights. [00:41:10] Speaker 06: I think my opposing colleague is wrong to frame this as about a preclusion of judicial review. [00:41:15] Speaker 02: It's totally... So does it appear in the executive order first? [00:41:18] Speaker 06: It appears in the executive order first and then it's also in the regulation. [00:41:21] Speaker 06: There's no statutory requirement for a supplemental agency regulation process to exist or that an agency use it under any particular circumstance. [00:41:32] Speaker 06: So I would agree with my opposing colleague if there was a statute that said people, you know, [00:41:38] Speaker 06: There should be a supplemental agency regulation process, and people are allowed to sue over it. [00:41:41] Speaker 06: An agency can then promulgate a regulation saying, this doesn't create any rights, procedural or substantive. [00:41:46] Speaker 06: But here, everything is a creature of the agency's own housekeeping statute. [00:41:49] Speaker 06: And so it's not a preclusion of judicial review case. [00:41:52] Speaker 06: It's a, is there some right that exists at all in the world? [00:41:56] Speaker 03: Well, what do you think about the question I asked your counsel for the plaintiffs here? [00:42:04] Speaker 03: My question was, [00:42:07] Speaker 03: rights or benefits, substantive procedural, they're not suing for to get their seats back. [00:42:14] Speaker 03: This is an APA challenge. [00:42:16] Speaker 03: And so isn't that not even covered by this language? [00:42:21] Speaker 03: There's nothing in this. [00:42:22] Speaker 03: First of all, I think there's another question about whether an agency even can state in a regulation that it can't be challenged under the [00:42:36] Speaker 03: Administrative Procedures Act, which is what you're saying. [00:42:40] Speaker 03: But setting that aside, isn't this focused on a different problem? [00:42:44] Speaker 03: They don't want individuals to be suing over serving or not serving on advisory committees. [00:42:55] Speaker 06: I think the way that that, this language appears in lots of different regulations, this isn't the only one, it appears in lots of executive orders, and the intent of that isn't about, it's about saying this doesn't create rights that are- Excuse me, excuse me, executive orders are different from regulations. [00:43:11] Speaker 06: Okay, this also appears in many regulations. [00:43:14] Speaker 03: Can you give me an example? [00:43:16] Speaker 06: Agency 2e regulations usually say that the rules about how requests for an agency official to turn over documents or testify in court are teed up within the agency for resolution. [00:43:29] Speaker 06: If those internal regulations about how those questions are teed up are not obeyed, it's not something that someone can sue in court for. [00:43:34] Speaker 03: How about regulations that affect, that go beyond internal procedures but affect parties outside the agency? [00:43:44] Speaker 06: Well, I don't think this is outside the agency. [00:43:45] Speaker 06: Remember here, we're talking about advisors to the agency. [00:43:48] Speaker 06: This is not regulation of someone's primary conduct. [00:43:53] Speaker 06: I understand that the individual scientists who have served and provided great benefit to the agency are not full-time EPA employee wearing hats. [00:44:02] Speaker 06: But we're talking here about the agency's own advisors. [00:44:05] Speaker 03: The language says no rights or benefits enforceable at a law by any person. [00:44:11] Speaker 03: The prayer in the complaint here just seeks to vacate something under the Administrative Procedures Act. [00:44:17] Speaker 03: It's not enforcing anything against the United States. [00:44:21] Speaker 03: It's not like it's seeking a remedy. [00:44:24] Speaker 06: I think to the extent the plaintiff's complaint is saying you should vacate this under the APA because it's contrary to law, because you are required by the supplemental agency regulation [00:44:35] Speaker 06: to go through this supplemental process with OGE and you didn't do that here and so therefore it's contrary to law. [00:44:41] Speaker 06: That is enforcing Part 2635 and it doesn't matter whether they're suing over their particular seed or not. [00:44:46] Speaker 06: What matters is that they're saying the agency has acted contrary to Part 2635 and therefore the agency's action should be vacated. [00:44:54] Speaker 06: And that's what 2635106C is trying to do. [00:44:59] Speaker 06: address. [00:45:00] Speaker 06: It's in a regulation because OGE wants it to be easy for agencies to find this process and to use it. [00:45:06] Speaker 06: But it includes this language, as the executive order itself had done, because this is a housekeeping matter. [00:45:11] Speaker 06: It's not intended to regulate people outside the government. [00:45:17] Speaker 04: Anything further? [00:45:19] Speaker 04: All right, thank you very much. [00:45:20] Speaker 06: There are no further questions. [00:45:21] Speaker 06: We ask that the judgment be affirmed. [00:45:22] Speaker 04: Thank you very much. [00:45:29] Speaker 04: All right, Council for Appellants. [00:45:35] Speaker 01: So I'd like to begin with just a couple of citations for the court and then make a few quick points. [00:45:41] Speaker 01: First, the peer review handbook is at JA-208, Judge Ginsburg. [00:45:46] Speaker 01: And I also wanted to refer you, Judge Tatel, to paragraph 65 of our complaint, where we do allege that many grant recipients will be disqualified by the directive. [00:46:02] Speaker 01: I wanted to emphasize that the colloquy about what the ethics laws prohibit and whether EPA has authority to adopt different ethics rules and to address independence or conflicts of interest in this way underscores that there clearly is law to apply here. [00:46:23] Speaker 01: This court can do a side by side comparison. [00:46:26] Speaker 01: of the OGE regulations and the GSA regulations that bind EPA and the direct, on the one hand, and the directive on the other and determine whether they're consistent as they are required to be under the OGE regulations. [00:46:40] Speaker 01: And that's section 2638602 that requires that agency regulations be consistent with OGE's regulations. [00:46:50] Speaker 01: I also wanted to point out that, [00:46:52] Speaker 01: contrary to my opposing counsel's statement, the ethics rules clearly do apply to appointments. [00:47:02] Speaker 01: This is confirmed by the GSA regulations because the GSA regulations direct DPA to apply the ethics rules in making appointments to their committees. [00:47:12] Speaker 01: And I would direct the court to page 73 of our addendum where the GSA regulations say the agency's designated ethics official should be consulted prior to appointing members to an advisory committee in order to apply federal ethics rules properly. [00:47:27] Speaker 02: Mr. Garment, I'm not sure that you covered this earlier on. [00:47:30] Speaker 02: But now we've heard squarely from Mr. Sandberg the claim that this isn't an ethics regulation to begin with. [00:47:38] Speaker 02: The peer review handbook says conflict of interest concerns are very limited when someone is a grantee but not passing upon related grants. [00:47:56] Speaker 02: So that's very explicitly touched. [00:47:58] Speaker 02: couched in terms of conflict of interest. [00:48:00] Speaker 02: That's at 208. [00:48:02] Speaker 02: So then the government comes in and says, look, this isn't a conflict of interest concern. [00:48:07] Speaker 02: The memorandum makes it clear that at least they talk about independence. [00:48:13] Speaker 02: They never mention conflict of interest. [00:48:16] Speaker 02: So how do you respond to that? [00:48:19] Speaker 02: If it's really not a conflict of interest concern, then it really doesn't relate to OGE at all. [00:48:24] Speaker 01: Well, the question is whether it's an ethics concern and a conflict of interest concern would qualify. [00:48:30] Speaker 01: And I want to point out that in EPA's brief, EPA concedes that this directive is motivated by conflict of interest concerns. [00:48:37] Speaker 01: And that is, to date, the only rationale that EPA has given on that. [00:48:43] Speaker 01: Yes? [00:48:47] Speaker 01: We point out in our reply that EPA need that concession. [00:49:18] Speaker 01: It's towards the end of EPA's brief, Judge Ginsburg, and we cite to the page in EPA's brief where they concede that this was motivated by conflict of interest concerns in our reply. [00:49:30] Speaker 04: What page is that? [00:49:58] Speaker 01: On page 47 of EPA's brief, they say that Congress itself found the funding relationships to raise potential conflict of interest concerns. [00:50:07] Speaker 01: And I don't have the page, but EPA says close to there that it was not arbitrary. [00:50:13] Speaker 01: EPA claims it wasn't arbitrary and capricious to act on the concerns raised by Congress. [00:50:17] Speaker 01: So EPA concedes that it acted on the conflict of interest concerns raised by Congress. [00:50:22] Speaker 02: So it says Congress found the funding relationships between EPA and advisory committee members [00:50:28] Speaker 02: raise potential conflict of interest concerns. [00:50:32] Speaker 02: The official explanatory statement accompanying some appropriations act is that, quote, the agency has not yet resolved long-standing questions regarding conflict of interest among advisory committee members that have spanned multiple administrations. [00:50:53] Speaker 02: I think you're right that it implicitly looks like a concession. [00:50:56] Speaker 02: I'm trying to put it in context here, to make sure I understand the context. [00:51:01] Speaker 01: Yeah, well, Judge Ginsburg, there's another page where EPA says that they acted, that they acted on these concerns raised by Congress and uses that as a defense. [00:51:10] Speaker 01: And I can't find it right now, but we could submit a subpoena to the letter. [00:51:13] Speaker 02: That's the next paragraph, I guess. [00:51:16] Speaker 02: Ultimately, plaintiff's real grievance lies not so much in the nature of EPA's explanation, but rather in the fact that the directive [00:51:22] Speaker 02: does not strike Congress' preferred balance between assuring committee independence and maximizing the number of qualified experts able to serve. [00:51:31] Speaker 01: There's another more direct statement in EPA's brief, but I can't find it right now. [00:51:37] Speaker 01: I wanted to address EPA's claim that the ethics rules don't address grants, as my opposing counsel just said. [00:51:48] Speaker 01: And I'd like to direct the Court to page 61 of the addendum of our brief, which is the OGE regulation [00:51:57] Speaker 01: that the Council for EPA discussed, but I would like to direct the court to paragraph G and the examples under paragraph G, because it's the examples that really make crystal clear that when OGE determined that advisory committee member financial interests did not create conflicts of interest, they were including [00:52:23] Speaker 01: agency grants within that. [00:52:25] Speaker 01: Example two addresses a situation where the National Cancer Institute has established an advisory committee to evaluate a university's performance of an NCI grant. [00:52:36] Speaker 01: And it makes crystal clear that the same standards apply to grants when they're evaluated by advisory committee members and determines that the situation presented here is not a conflict of interest. [00:52:52] Speaker 01: Ultimately, it's a distinction without a difference when EPA says that, well, this directive is about independence. [00:53:01] Speaker 01: It's about the integrity of the committees. [00:53:05] Speaker 01: Those are all issues that come within the ethics rules. [00:53:10] Speaker 01: At bottom, that's a disagreement with OGE about whether these grants create a conflict of interest. [00:53:19] Speaker 02: Mr. Bellman, if the administrator [00:53:22] Speaker 02: Didn't terminate anybody's appointment, but as vacancies came up, never filled any with people who have grants. [00:53:32] Speaker 02: So it becomes apparent after a while that that's what's happening, that he's just refusing to put any grantees on committees. [00:53:39] Speaker 02: Maybe because of some experience elsewhere, not in government or what have you, early on in life where he thinks that comes to think that's a bad idea. [00:53:48] Speaker 02: Is he violating anything? [00:53:53] Speaker 01: Well, there certainly would be very difficult issues of proof in your hypothetical. [00:53:58] Speaker 01: In your hypothetical, is the administrator acting solely on the basis that these grants pose an ethical problem? [00:54:11] Speaker 02: Maybe he's not so clear that it's an ethical problem. [00:54:13] Speaker 02: He just doesn't want people who have a vested interest in EPAs making more grants. [00:54:19] Speaker 01: Well, I think that there would be difficult issues of proof, and it would be a closer question whether that action or failure to act would be reviewable or committed to discretion. [00:54:30] Speaker 01: But here, where we have the administrator not just making clear his rationale, but also adopting an across-the-board policy, as this Court's decision in the National Treasury Union employee's case, [00:54:45] Speaker 01: which you wrote Judge Ginsburg makes clear, even if challenges to individual appointment decisions might be committed to discretion, a change to the rules that govern, in that case, the civil service, is not committed to discretion and is reviewable. [00:55:02] Speaker 01: And that's more like the situation we have here. [00:55:06] Speaker 01: I'd like to... [00:55:10] Speaker 01: finish by addressing the arbitrating capricious issue. [00:55:14] Speaker 01: And I'd like to emphasize that if you read this directive, EPA gives reasons for the new policy, and it states the new policy. [00:55:24] Speaker 01: But there's no indication that EPA's prior policy took the opposite position. [00:55:30] Speaker 01: And there's no acknowledgment of that conflict. [00:55:32] Speaker 01: And that's what this court's cases require. [00:55:36] Speaker 01: And relatedly, there's no recognition. [00:55:40] Speaker 02: Is it just that it doesn't acknowledge a change that we were saying? [00:55:44] Speaker 01: It doesn't acknowledge the change and it doesn't acknowledge the conflict with the private policy, Judge Ginsburg. [00:55:51] Speaker 01: And relatedly, [00:55:54] Speaker 01: there's no indication in this directive that the expert agency in matters of ethics has taken the opposite position as to whether there's an ethics problem here. [00:56:03] Speaker 01: That the expert agency in matters of ethics has decided that these grantees should be permitted to serve. [00:56:10] Speaker 01: So even if EPA were not directly bound by the OGE regulations, which [00:56:17] Speaker 01: In fact, EPA was bound to apply the OG regulations in the appointment process. [00:56:22] Speaker 01: But even if EPA wasn't, it would be arbitrary for EPA to fail to even consider that judgment of the expert agency, as EPA failed to do here. [00:56:34] Speaker 01: If there are no further questions, I would ask the court to reverse the judgment of the district court and remand with instructions to vacate and grant other appropriate relief. [00:56:44] Speaker 04: Thank you. [00:56:45] Speaker 04: We'll take the case under advice.