FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR POLICY ANALYSIS ON 

TRADE AND HEALTH (CPATH);

CALIFORNIA PUBLIC HEALTH

ASSOCIATION - NORTH; CHINESE

PROGRESSIVE ASSOCIATION;

PHYSICIANS FOR SOCIAL

RESPONSIBILITY, No. 06-16682

Plaintiffs-Appellants,

D.C. No.

and  CV-05-05177-MJJ

AMERICAN NURSES ASSOCIATION, OPINION

Plaintiff,

v.

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE; UNITED

STATES DEPARTMENT OF COMMERCE,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

May 16, 2008—San Francisco, California

Filed August 22, 2008

Before: Procter Hug, Jr. and N. Randy Smith, Circuit Judges,

and Richard Mills,* District Judge.

*The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation. 

11455
Opinion by Judge N. Randy Smith

11456 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
COUNSEL

Martin Wagner (argued) and Sarah Burt, Earthjustice, Oakland, California, counsel for the plaintiffs-appellants. 

Mark B. Stern (argued) and Alisa B. Klein, United States

Department of Justice, Civil Division, Washington, D.C.,

counsel for the defendants-appellees. 

OPINION

N. RANDY SMITH, Circuit Judge: 

The “fairly balanced” membership requirement, imposed

by the Federal Advisory Committee Act (“FACA”) and

applied to the Trade Act of 1974 (“Trade Act”), is not reviewable because those statutes provide us with no meaningful

standards to apply. The district court therefore properly dismissed the complaint by the Center for Policy Analysis on

Trade and Health, California Public Health Association -

North, Chinese Progressive Association, and Physicians for

Social Responsibility (collectively, “CPATH”). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11459
I.

A.

The Trade Act, 19 U.S.C. § 2155, et seq., directs the United

States Trade Representative and the United States Department

of Commerce (collectively, “USTR”) to obtain policy advice

and information regarding trade issues from a series of advisory committees known as Industry Trade Advisory Committees or “ITACs.” See 19 U.S.C. § 2155(c). ITACs provide

United States trade negotiators with policy advice on (1) “negotiating objectives and bargaining positions before entering

into a trade agreement,” (2) “the operation of any trade agreement once entered into,” and (3) “other matters arising in connection with the development, implementation, and

administration of the trade policy of the United States.” See

19 U.S.C. § 2155(a)(1)(A)-(C), (d).1

The Trade Act requires that the ITACs “shall, insofar as is

practicable, be representative of all industry, labor, agricultural, or service interests (including small business interests)

in the sector or functional areas concerned.” 19 U.S.C.

§ 2155(c)(2). As expressed in the legislative history, Congress’s stated purpose for this portion of the Trade Act is:

to establish the institutional framework to assure that

representative elements from the private sector have

the opportunity to make known their views to U.S.

negotiators, and to provide the latter a formal mechanism through which to seek information and advice

from the private sector, with respect to U.S. negotiating objectives and bargaining positions before and

during the multilateral trade negotiations. 

1The ITACs at-issue in this litigation are ITAC-4 (Consumer Goods),

ITAC-5 (Distribution Services), ITAC-8 (Information and Communications Technologies, Services, and Electronic Commerce), ITAC-10 (Services and Finance Industries), ITAC-14 (Customs Matters and Trade

Facilitation), and ITAC-16 (Standards and Technical Trade Barriers). 

11460 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
S. Rep. No. 93-1298 (1974), reprinted in 1974 U.S.C.C.A.N.

7186, 7248. According to relevant legislative history, the

ITACs were to be “representative of the producing sectors of

our economy.” Id. at 7249. 

The Trade Act also provides for the formation of two other

categories of advisory committees. One such committee must

be composed of “not more than 45 individuals and shall

include representatives of non-Federal governments, labor,

industry, agriculture, small business, service industries, retailers, non-governmental environmental and conservation organizations, and consumer interests.” 19 U.S.C. § 2155(b)(1).

According to the Trade Act, this committee must be “broadly

representative of the key sectors and groups of the economy,

particularly with respect to those sectors and groups which are

affected by trade.” Id. The Trade Act also provides for the

creation of “individual general policy advisory committees for

industry, labor, agriculture, services, investment, defense, and

other interests, as appropriate, to provide general policy

advice[.]” Id. § 2155(c)(1). Committees in this category must,

“insofar as is practicable, be representative of all industry,

labor, agricultural, service, investment, defense, and other

interests, respectively, including small business interests[.]”

Id. Neither the § 2155(b)(1) committee nor the (c)(1) committees are at issue in this litigation; CPATH is instead concerned

about the ITACs formed pursuant to 19 U.S.C. § 2155(c)(2).

B.

FACA requires (among other things) that “the membership

of the [ITACs] . . . be fairly balanced in terms of the points

of view represented and the functions to be performed[.]” 5

U.S.C. App. 2 § 5(b)(2) (emphasis added). FACA does not

define what constitutes a “fairly balanced” committee — in

terms of points of view represented or functionality — or how

that balance is to be determined. FACA makes clear that “[t]o

the extent they are applicable, the guidelines set out in subsection (b) of this section shall be followed by the President,

CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11461
agency heads, or other Federal officials in creating an advisory committee.” 5 U.S.C. App. 2 § 5(c) (emphasis added). 

C.

CPATH contends that the ITACs do not currently have any

members representing the public health community and that,

as a result, the points of view represented on the ITACs are

not fairly balanced. Because of the perceived lack of balance,

CPATH requested that the USTR appoint a representative

from the public health community to each of the ITACs. The

USTR never responded to CPATH’s requests and has not

allowed CPATH access to the ITACs or to any of the confidential trade information known by the ITACs’ members.

CPATH subsequently brought this action against the USTR to

remedy the alleged violations of FACA arising out of what it

viewed as imbalance in the points of view represented by the

ITACs’ membership. 

USTR moved to dismiss pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). USTR argued that dismissal

was required because CPATH lacked standing and, additionally, that CPATH’s complaint was non-justiciable under the

Administrative Procedure Act (“APA”). The district court

found that CPATH had standing but nevertheless dismissed

the action, holding that FACA’s “fairly balanced” requirement was non-justiciable under the APA.2

II.

We review de novo the district court’s dismissal for lack of

jurisdiction and may affirm on any basis supported by the

record. Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir.

2007). 

2We do not disagree with the district court’s conclusion that CPATH

has standing. We need not discuss that issue any further here in light of

our holding that the balance of the ITACs is not reviewable under the

APA. 

11462 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
III.

A.

[1] “Congress intends the executive to obey its statutory

commands and, accordingly, . . . it expects the courts to grant

relief when an executive agency violates such a command.”

Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667,

681 (1986). The APA generally provides a remedy for any

such violation. See 5 U.S.C. § 701, et seq. (outlining requirements). “[T]he Court has noted that the APA . . . embodies a

‘basic presumption of judicial review.’ ” Newman v. Apfel,

223 F.3d 937, 943 (9th Cir. 2000) (quoting Lincoln v. Vigil,

508 U.S. 182, 190 (1993)). 

[2] Exceptions to reviewability under the APA exist only

“to the extent that (1) statutes preclude judicial review; or (2)

agency action is committed to agency discretion by law.” 5

U.S.C. § 701(a). “The legislative history of the Administrative

Procedure Act indicates that [the doctrine of nonreviewability] is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there

is no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830

(1985) (citations and internal quotation marks omitted).

“[E]ven where Congress has not affirmatively precluded

review, review is not to be had if the statute is drawn so that

a court would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Id.

B.

[3] As noted, the first prong of the APA’s reviewability

analysis inquires whether the statute expressly precludes judicial review. 5 U.S.C. § 701(a)(1). This prong is inapplicable

because neither the Trade Act nor FACA expressly precludes

judicial review. See 5 U.S.C. § 701(a)(1). Additionally, with

certain exceptions that do not apply here, the Trade Act

CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11463
expressly states that FACA applies to the ITACs. See 19

U.S.C. § 2155(f). 

C.

[4] The second prong of the APA’s reviewability analysis

precludes review if “agency action is committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). We have interpreted

5 U.S.C. § 701(a)(2) as applicable in two circumstances. Newman, 223 F.3d at 943. “The first of these circumstances is that

in which a court would have no meaningful standard against

which to judge the agency’s exercise of discretion and there

thus is no law to apply.” Id. (internal quotation marks and

citations omitted). “The second such circumstance is that in

which the agency’s action requires a complicated balancing of

a number of factors which are peculiarly within [the agency’s]

expertise, including the prioritization of agency resources,

likelihood of success in fulfilling the agency’s statutory mandate, and compatibility with the agency’s overall policies.” Id.

(internal quotation marks and citations omitted) (brackets in

original). In such cases, the decisionmaking process is absolutely “committed” to the agency’s judgment. Heckler, 470

U.S. at 830. We have also emphasized that § 701(a)(2)

“stakes out a very narrow exception.” Newman, 223 F.3d at

943 (internal quotation marks and citation omitted). We must

then determine whether FACA’s “fairly balanced” requirement, as applied to the Trade Act, precludes judicial review

because the agency action fits either of the two circumstances

described above and is therefore committed to agency discretion by law. 

D.

Review of the Trade Act and FACA make clear that those

statutes provide us with no meaningful standards to apply

when considering whether USTR complied with the “fairly

balanced” requirement imposed by FACA. This is, as Judge

Silberman noted in Public Citizen v. National Advisory Com11464 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
mittee on Microbiological Criteria for Foods, 886 F.2d 419

(D.C. Cir. 1989), a political question that is best left to the

other branches of government. See id. at 426-430 (Silberman,

J., concurring in the judgment) (stating that “[t]he relevant

points of view on issues to be considered by an advisory committee are virtually infinite and, therefore, the judgment as to

what constitutes an appropriate or ‘fair’ balance of those

views must be a political one”). 

[5] The statutes at issue in this case — FACA and the

Trade Act — are devoid of standards suggesting what Congress intended when it required all advisory committees to be

“fairly balanced.” As a result, determination whether a given

ITAC is in compliance with the Trade Act’s requirements is

“hopelessly manipulable” and poses, as Judge Silberman

noted, “a major political question of our time.” Id. at 427,

429. Given that context, analysis of whether the ITACs satisfy

the “fairly balanced” requirement — both in terms of function

and points of view represented — is a task “not properly

undertaken by life-tenured, unelected federal judges.” Id. at

427-28. Instead, we believe that this determination is a process best left to the executive and legislative branches of government. 

[6] The language of the Trade Act and FACA compel this

result. FACA does not, for example, articulate what perspectives must be considered when determining if the advisory

committee is fairly balanced. See 5 U.S.C. App. 2 § 5(b)(2).

While the Trade Act states that the ITACs “shall, insofar as

is practicable, be representative of all industry, labor, agricultural, or service interests (including small business interests)

in the sector or functional areas concerned[,]” 19 U.S.C.

§ 2155(c)(2), that section provides no standards to allow us to

determine when it is, or when it is not, practicable to appoint

a certain interest onto one of the ITACs. Finally, the suggestion in the Trade Act’s legislative history that the ITACs

should be “representative of the producing sectors of our

economy[,]” S. Rep. No. 93-1298 (1974), reprinted in 1974

CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11465
U.S.C.C.A.N. at 7249, provides no guidance. We are in no

position to determine whether the present composition of the

ITACs are “representative” and therefore in compliance with

the Trade Act. We have no reasoned basis from which to conclude whether adding a public health representative to any

one of the ITACs would achieve the proper balance, or

whether it would be practicable to do so. It is not a “ ‘difficult

question’ ” that courts must answer, as CPATH argues in its

brief on appeal. See Appellant’s Op. Brief at 15 (quoting

Microbiological Criteria, 886 F.2d at 434 (Edwards, J., concurring in part and dissenting in part)). Instead, it is a political

question arising out of a statute that provides us with no

meaningful standards to apply. This is a question that we are

ill-suited to decide. 

CPATH argues that our holding here is in direct conflict

with decisions from our sister circuits. Not so. In fact, none

of our sister circuits have specifically addressed whether the

Trade Act supplies sufficiently definite standards to allow for

judicial review of FACA’s “fairly balanced” requirement.

Other courts have addressed the “fairly balanced” requirement

in the context of other laws and have found the ‘fairly balanced’ requirement specific enough to allow for judicial

review. See Nat’l Anti-Hunger Coal. v. Exec. Comm. of the

President’s Private Sector Survey on Cost Control, 711 F.2d

1071 (D.C. Cir. 1983) (upholding the district court’s application of FACA to Executive Order No. 12369, 47 Fed. Reg.

28899 (June 30, 1982)); Cargill, Inc. v. United States, 173

F.3d 323 (5th Cir. 1999) (applying FACA to National Institute for Occupational Safety and Health); Colo. Envtl Coal. v.

Wenker, 353 F.3d 1221 (10th Cir. 2004) (considering fairly

balanced requirement in context of resource advisory councils

mandated by Bureau of Land Management regulations). But

those decisions do not lessen our obligation to determine

whether these particular statutes contain sufficiently definite

standards for us to apply to allow for judicial review. As

noted, we conclude that they do not. 

11466 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
CPATH heavily relies on National Anti-Hunger Coalition

as support for the argument that FACA’s “fairly balanced”

requirement is reviewable. CPATH argues that, because the

D.C. Circuit did not expressly decide the case on the particulars of the statutes before the court, those factors must not be

controlling or even important. We disagree. The National

Anti-Hunger Coalition court affirmed the district court’s holding that the at-issue committee complied with FACA’s “fairly

balanced” requirement. 711 F.2d at 1074. The district court,

however, studied the Executive Order establishing the committee and concluded that “[t]he President’s express intent in

establishing the survey was to apply to federal programs the

expertise of leaders in the private sector with ‘special abilities

to give detailed advice on cost-effective management of large

organizations.’ ” Nat’l Anti-Hunger Coal. v. Exec. Comm.,

557 F. Supp. 524, 528 (D.D.C. 1983) (internal citation ommitted). The district court concluded that in light of that objective, the plaintiffs failed to identify any actionable imbalance.

Id. As noted, the D.C. Circuit affirmed the district court’s

conclusion in this regard as “unimpeachable.” See Nat’l AntiHunger Coal., 711 F.2d at 1074. We decline to follow

National Anti-Hunger Coalition, because it fails to answer the

question whether FACA’s “fairly balanced” requirement, as

applied to the Trade Act, presents a situation where there is

no law to apply. See Newman, 223 F.3d at 943. 

CPATH also relies on the Fifth Circuit’s decision in Cargill, as support for its argument that the “fairly balanced”

requirement is reviewable. See Cargill, 173 F.3d at 334-38

(holding that both the functional and point-of-view balance

requirements imposed by FACA were justiciable in light of

the “weight of the caselaw” favoring judicial review and citing Microbiological Criteria, 886 F.2d at 434 (Edwards, J.,

concurring in part and dissenting in part) and 423-25 (Friedman, J., concurring); Nat’l Anti-Hunger Coal., 711 F.2d at

1074 n.2). 

We decline CPATH’s invitation to follow Cargill because,

like National Anti-Hunger Coalition, the Cargill decision

CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11467
arose in a different statutory context, with different requirements for the committees than those presented by this case.

See Cargill, 173 F.3d at 327-28 (considering whether

National Institute for Occupational Safety and Health violated

FACA’s fairly balanced requirement). Further, the Cargill

decision offers little explanation why FACA’s fairly balanced

requirement is justiciable. Given the statutory framework

before us, we are compelled to hold that this is a case where

there is no law to apply. See Heckler, 470 U.S. at 830. 

CPATH also relies on Wenker, where the Tenth Circuit

held that FACA’s “fairly balanced” requirement is reviewable. 353 F.3d at 1233. However, the Wenker court noted that

the regulations at issue in that case provided express guidance

as to the composition of the committees. Id. at 1233-34 (considering FACA’s “fairly balanced” requirement in light of 43

C.F.R. § 1784.2-1 and § 1784.6-1 and holding that such a

requirement was justiciable). As set forth above, no such regulations exist in this case. We therefore find Wenker persuasive only to the extent that it suggests that additional

regulations might, in some circumstances, be sufficient to

result in a reviewable controversy under the APA. 

[7] We therefore conclude that neither FACA nor the Trade

Act provide us with meaningful standards to apply when

determining whether the “fairly balanced” requirement has

been violated. In light of the complexities involved with

United States trade policies, this is an area best suited to executive or legislative determination. The USTR is better

equipped — given this statutory framework — than the courts

to succeed in the task of determining the proper balance of the

ITACs. Allowing the USTR to determine the proper balance

for the ITACs’ membership will offer the best opportunity for

the ITACs to fulfill their statutory mandate under the Trade

Act. 

[8] Thus, under the plain language of FACA and the Trade

Act, CPATH’s complaint is non-reviewable, and the district

11468 CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE
court correctly dismissed CPATH’s complaint on that basis.

Our holding here is, however, narrow. Although we hold that

CPATH’s challenge to the ITACs is non-reviewable, we do

not suggest that FACA’s “fairly balanced” requirement is

non-reviewable in every circumstance. It remains an open

question in this circuit whether FACA’s “fairly balanced”

requirement presents a reviewable controversy in other circumstances. 

AFFIRMED.

CENTER FOR POLICY ANALYSIS v. OFFICE U.S. TRADE 11469