cause irreparable harm to the interests that plaintiffs purport to represent. However, "[b] are allegations of what is likely to occur are of no value since the court must decide whether the The [plaintiffs] must provide

harm will in fact occur.

proof.

indicating that the harm is certain to occur in the near future." Wisconsin Gas, 758 F.2d at 674 (emphasis in original). Speculative Or theoretical harm, no matter how irreparable if it occurs, is inadequate to justify a preliminary injunction. Id.; see National Nutritional Foods Association v. Califano, 603 F.2d 327, 333-34 (2d Cir. 1979) (inappropriate to enjoin prospective agency action since adequate remedy available if action actually taken); Metcalf v. National Petroleum Council, 553 F.2d 176, 184-85 (D.C. Cir. 1977) (speculative nature of alleged injuries precludes standing under FACA).

will

to their

Plaintiffs fear that their "viewpoints and perspectives will be shut out of the process, and [that] the Commission shape its deliberations and recommendations detriment." Plaintiffs' Memorandum at 28. The harm prophesied by plaintiffs is that the Commission "may" make recommendations adverse to plaintiffs' interests, that the President, Secretary Bowen, and others "may rely" on the Commission's report in shaping federal AIDS policy, and that the public "may" vest the Commission with the credibility of a committee that complies with FACA's balanced viewpoint requirement. Id. at 29. Further, without an injunction, the Commission will issue its preliminary report, defining its mission and scope and, plaintiffs argue,

tainting permanently the

Commission's work with the existing

imbalance of viewpoints. Id.

The plaintiffs'

characterization of the potential

results if a preliminary injunction does not issue betrays the speculative and theoretical nature of the anticipated harm. That the President or his advisors "may" rely on the Commission's report or that the public "may" attach credibility to that report is purely speculative; advice by its very nature may be heeded or rejected in the discretion of the advisee. Moreover, the contents and tenor of reports that the AIDS Commission may issue are, at best, uncertain.5/ Any harm that may flow from the Commission's recommendations can certainly be prevented at the time that those recommendations become more than guesswork.

The Court reiterates that the plaintiffs are not entitled under FACA to a Commission whose recommendations are certain to comport with the views of AIDS victims or AIDS health care providers and counselors. Consequently, a properly constituted Commission may have members whose views are "extreme." Indeed, the subjectivity of a characterization of a particular view as "extreme" bespeaks the speculation inherent in plaintiffs' complaint. Finally, it appears that the only

5/ The threat of irreparable harm is not enhanced by the recent publication of the Commission's report. Certainly, the report states that the work of the Commission will affect AIDS patients and health care providers. Plaintiffs' conclusion that a fortiori they will suffer irreparable harm simply misconstrues this element of the preliminary injunction analysis. The Court is concerned with harm that will occur, and as plaintiffs admit, the Commissions work may affect them "positively." Given that plaintiffs may not be harmed at all, the harm that they foresee as possible cannot be regarded as irreparable.-

substance left to the complaint following the appointment of commissioners Primm and Gebbie is that no AIDS victim has been

appointed a

commissioner. Given the representation of other plaintiff groups, the potential harm from this omission is at

best aleatory.

The Public Interest Is Best Served by Permitting the Commission to Continue its Work

Another "uniquely important" factor in the preliminary injunction calculus is the potential harm to the public interest from such an injunction. National Association of Farmworkers v. Marshall, 628 F.2d 604, 616 (D.C. Cir. 1980); Virginia Petroleum, 259 F.2d at 925. Both parties acknowledge the urgency of the AIDS problem, yet plaintiffs demand that the AIDS Commission be restrained from any further work on the hypothesis that its work may be biased. As noted earlier, any injury that might result from an imbalance of viewpoints, if any, on the Commission can be remedied at the time that the Commission issues its report or recommendations. Plaintiffs' apprehension, however, that the Commission's work will be impaired by the alleged imbalance and that its report will delay the development of a useful national

policy on AIDS does not warrant the grant of a preliminary injunction. Consequently, enjoining further activity by the Commission could only harm the public interest.

plaintiffs seek to enjoin any further activity by the Commission and to compel the President to appoint new commissioners who will imbue the Commission with viewpoints allegedly required under section 5(b) (2) of FACA. The extraordinary relief requested by plaintiffs would be premature. Plaintiffs are not likely to

succeed on the merits of their complaint and no irreparable harm is likely to result in the absence of a preliminary injunction. Further, if the harm presaged by plaintiffs were adequate remedy would be available at that time.

to occur, an

TESTIMONY OF PHILIP J. HARTER

BEFORE THE

SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS
CONCERNING

THE FEDERAL ADVISORY COMMITTEE ACT

1

I am Philip J. Harter, a lawyer here in Washington, who is largely responsible for the development of the concept of regulatory negotiation. It is a procedure by which an agency assembles representatives of interests that would be substantially affected by a regulation, including a senior official of the agency itself, to negotiate the terms of a rule. These committees operate under the Federal Advisory Committee Act. I have served as the mediator for a number of regulatory negotiations and as an advisor to several agencies in establishing the process. In other capacities, I have worked with statutorily created advisory I therefore have a firsthand, practical experience

committees.

with the operation of Federal advisory committees.

I am also a professor of administrative law at the University of Maryland School of Public Policy and am a former member of the Council of the Section of Administrative Law of the American Bar Association. Hence I also approach advisory committees from a broader perspective with respect to their contribution to administrative law in general. Finally, I have been a member of the Federal Bar Association's Select Committee on FACA that has exhaustively reviewed the Act and has been active in making recommendations concerning its administration.

Although I could spend a great deal of time talking about the various issues raised by the obscure Federal Advisory Committee Act, I want to make three main points:

• Advisory committees that are empaneled to address a