[Ip-health] CT TO DECIDE USTR SUIT

[Flynn, Sean M.]

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Inside US Trade - April 28, 2006

A lawsuit brought by a coalition of public health groups to have their view=
s represented on six international trade advisory committees is heading for=
 a critical hearing next month before the U.S. District Court for the North=
ern District of California.

On May 23, the court will consider two key arguments by the Bush Administra=
tion for why it should dismiss the case. The court will also weigh a counte=
rargument by the public health activists led by the Center for Policy Analy=
sis on Trade and Health on why their case should be allowed to proceed.

The first argument outlined in the Feb. 14 motion to dismiss the case is th=
at the plaintiffs have failed to establish their right to bring the case be=
cause they did not claim they suffered direct injury from the agencies' dec=
ision not to name their nominees or other public health advocates to the ad=
visory committees. In addition, the government argued a court decision in f=
avor of the plaintiffs would not likely redress claimed injury.

But the plaintiffs argued in a March 31 countermotion that they did claim i=
njury by being denied representation on the advisory committees and the res=
ulting denial of receiving confidential information and issuing confidentia=
l policy advice. They also said a favorable decision will likely redress th=
e injury they have suffered by not being named to the committees.

Their countermotion also cites the fact that an earlier court decision in N=
orthwest Ecosystem Alliance v. USTR (1999) held that the request for repres=
entation satisfied the threshold for standing. That case was effectively id=
entical to the lawsuit by the public health groups, according to the counte=
rmotion.

The second major Bush Administration argument to dismiss the case is that t=
he court does not have jurisdiction to review decisions regarding membershi=
p on the advisory committees because the decisions are subject to agency di=
scretion. Under the Administrative Procedure Act, decisions left to agency =
discretion by law cannot be subject to a court review, the Bush Administrat=
ion argued.

The plaintiffs' countermotion argued the APA contains only a narrow excepti=
on to judicial review, with a strong presumption of reviewability. A lawyer=
 for the plaintiffs said a Supreme Court opinion held Congress expects cour=
ts to grant relief when an executive agency breaks statutory law.

In advance of the May 23 hearing, the U.S. government is expected to file a=
 reply brief defending the motion to dismiss the case.

The public health groups' lawsuit substantively charges the agencies have f=
ailed to appoint members to the committees that would represent a balanced =
point of view as required under the Federal Advisory Committee Act ( Inside=
 U.S. Trade, Dec. 19, 2005, p. 11).

Plaintiffs charge that industry representatives on the advisory committees =
now deliver advice on trade issues that runs contrary to the public health =
groups' stances on matters of health of individuals, communities and popula=
tions, as well as equitable access to affordable medical goods and services=
.