good morning your honour's and may it please the court are ya nelson on behalf of the cornucopia institute dominic marquez and rebecca goodman we ask the court to reverse the district court's decision dismissing this case for lack of standing we also ask the court to determine this case prove that presents a life controversy and therefore is not meant plaintiffs are here because the u s department of agriculture appointed non farmers to seats on the national organic standards board that congress reserved for organic farmers the key issue on appeal is whether plaintiffs have alleged the injury in fact elements of standing they have plaintiffs have alleged that u a violations of the appointment procedures and the organic food production act and the federal advisory committee act like that article three injuries on plaintiffs in two ways either of which is sufficient for standing perhaps you would appointment would constitute effectual relief by declaring that the u s d a has violated the organic foods production act and the federal advisory committee act well she she now is an organic farmer  right and the other challenge board member that term has expired so it's no longer any life challenge to it your honor we disagree first of all although in our opening briefly pointed out that us news website indicates that she  i don't know if we could make it in the district court but the point that i'd like to make was that then you have mentioned you would risk problem right you are wanted to clear tory judgment lots of people want advice re opinions the whole purpose of a movie star is to prevent them so if there is a bona fide dispute about whether swofford is today organic farmer i could see he having that dispute litigation but you don't sound like there is a bona fide dispute just make i want to make sure i understand you so a couple responses to that your honor first of all part of the issue here is the process if the district court issued a declaratory judgment no your honor however we do think that as the d c circuit has said questions about whether the composition of the board is fairly balanced under the federal advisory committee act is a merits question but i mean there's no longer any question if there is no bonafide dispute you just conceded there is not there's no question about her propriety propriety as a member she meets the qualifications and the other challenge board member that term has expired so there's no question of unfair there are some kind of unfair imbalance here so you're on a part of the way i respond to back question or comment is that the issue here is a procedural injury and a problem with the process and the u s d a did not apply the mandatory statutory criteria to all applications it didn't weed out in eligible candidates that the statute determined were in alge had a quote right to be considered where does that come from so the language of the organic foods production act says that for man for organic farmers for individuals who irish that's who should be on the committee question i'm asking is why does anybody have a right to be considered suppose the department of agriculture adopted a rule that any self nominations would be thrown in the garbage what violet what statute or regulation would that viol your honor i don't know that there's a specific violation we're saying i couldn't find one either but without such a statute i don't see how anybody has a right to be considered and without a right to be considered there is no for a they violated my right to be considered a claim here you're in a comes from the administrative procedure act and other cases such as color national color environmental collection b wink or do you find that there is a claim when you're to attach a challenge appointments to federal it was your of your underlying substantive argument is that the board violated the rule that appointment the appointee should be people who  operated morgan farming operation but in order to show standing your clients have to show something that differentiates them from the whole public because under us against richardson any injury to the whole public doesn't produce standing for any i understood your theory to be why your clients were different from the whole public to be that they had applied for positions and their right to be considered was being violated and that's what led me to say did they have a right to be considered because if they didn't they're no different from every other member of the public so unless there is some statute that says that self nominees have to be considered rather than thrown into the garbage your strategy for saying my clients are not the same as every member of the public doesn't work so i wish you would address my question your honor so the injury here is that the u s d a up considered and then appointed in eligible applicants yes and if that is a problem it is a problem which all three hundred fifty million some odd residents share in common i wish you'd address my question about is there something that differentiates your clients and if the differentiating thing is they had a right to be considered please point me to what created the right to be considered your own i think it's a little bit different  whether they had a right to be considered and that these individuals have a direct interest and what the board does because this advisory committee is somewhat unique in that it actually not only does it influence the agency but it also is able to constrain the agencies decisions and these are getting farmers are interested in exactly what this board does which has already we would be you don't want to pursue that too far without creating serious problems under order to  because these people are neither nominated by the president or confirmed by the senate you know want to pursue that but i take it that your non answer to my question means that you are unaware of anything that economic harm or reputation and jury but we do allege that there are two theories a standing here and the second of which is the denial of the fair opportunity to compete for a position on the board and  indicate yes is there anything that differentiates your clients from the other three hundred fifty plus million people in the country in that respect your honor i would say that it says that they are organic farmers who applied for and were denied possession and that congress explicitly said that for our ghana farmers got a voice on this advisory committee and so therefore as organic farmers they have a specific referred by the white house or nominations referred by some association other than the court institute is there your honor i would just disagree that that would be necessary for the standing for example and national into hunger call a song let me give you another agency the federal trade commission cannot have more than three members of the same party and the historical tradition is to have three members of the president's party two members of the opposition party were sometimes one member of the opposition of one independent s'posed you have two three of the president's party two with the opponent  could somebody who wanted to be on the f t c file a lawsuit and say one of the nominal democrats is just nominal he's really a republican so they're really for republicans and i want you hypothetical there is a statute saying no more than three members of the f t c shall belong to any one party and the claim as i articulated in the hypothetical is that one of these supposed minority go ahead it would be a question of statutory interpretation for the court to answer and just as here that would be a question it would be a simple garden variety question of statutory interpretation for the court to determine whether these individuals were organic farmers or not and i just like to circle back to the issue of what declaratory relief would do in this case which is it would require the u s g a to go back and redo the appointment process this time following congress's mandate and applying the mandatory statutory criteria to all appointments and therefore screening out candidates who were the court would determine whether or not under the statute these individuals were organic farmers and the statute does feinstein who's an organic farmer and specifically defiance who is an organic handler so when you read the statutory provisions together it becomes clear who is not an organic farmer right but you said at the at the top of this argument that there is no bonafide dispute over whether the only continuing board member with with an ongoing term is an organic farmer so that by would be been litigating that in that injury there's no dispute about that she is it's analogous to a national environmental policy law case or similar cases where the injury has to do with the decision statutes as they go back to i believe the language your honor just says that it must appoint people who are owner operators of organic farms and if it's all right i'd like to reserve my last thirty six seconds for particular action that the board has taken or anything the secretary has done based on a recommendation of the border or anything along those lines so they really it is the case they have failed to identify how their circumstances different from that of the average citizen in of course it's black letter law that not sufficient to support a standing up to the extent their argument and i think the only potential concrete harm is to say you know there isn't a representative on the board who is an are going to farmer  so again they're not challenging any past action that the board has taken here so the only harm they could experience would be a future harm and if the board is comprised of all organic farmers or simply is going to harm their parents in an ongoing manner honour's what happened here was that the u s d a ignored congress's statutory mandate and appointed non farmers to teach that congress specifically reserved for ghana farmers it cut the voice of organic farmers down to a whisper and there has who can bring such a claim i mean you drop your economic injury that's correct your honor but in national environmental and winker the court made clear that you don't need to challenge a specific decision but rather the fact that there is not the mix of advice that congress mandated on this board is enough to town to have stand up for what they give there with us to say that the governor had unlawfully weighed in or them i'm not stating it very well but the his choices were given undue influence and there was a specific statutory prohibition or regulatory prohibition against that your honor i would i would argue that it's analogous because there the problem was that the the b l m went around the regulations saying who had to be appointed and that the result was these unbalanced advisory committees until the problem was an undue influence it was rather that there weren't these that they've they went around they violated the status that was clear that was what they said could be the effect of my thing decided that the the case could go ahead but that was because to kill or influence in there it wasn't here where it's just everyone i would argue that you don't need to  to prove that there was undue influence because the problem there as the winker court specified was that the agency did not follow its own regulations and it therefore short circuited the requirements  went on this board and therefore the result was unlawfully composed committees and that was the harm there and it's analogous here where you have an agency that violated the mandatory statutory criteria that congress set out