Washington Legal Foundation v. U.S. Sentencing Com'n, 93-5216

Decision Date25 February 1994
Docket NumberNo. 93-5216,93-5216
Citation17 F.3d 1446
Parties, 22 Media L. Rep. 1338 WASHINGTON LEGAL FOUNDATION, Appellant, v. UNITED STATES SENTENCING COMMISSION, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia D.C.Civ. No. 93-986.

Paul D. Kamenar argued the cause for appellant. Also appearing on the briefs were Daniel J. Popeo, Daniel A. Rezneck, and Edward H. Sisson.

Malcolm L. Stewart, Attorney, United States Department of Justice, argued the cause for appellees. Also appearing on the brief were J. Ramsey Johnson, United States Attorney, and Mark B. Stern, Attorney, United States Department of Justice.

Before: MIKVA, Chief Judge, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

Appellant Washington Legal Foundation ("WLF") seeks access to the deliberations and documents of a committee advising the United States Sentencing Commission. WLF claims a statutory entitlement under the Federal Advisory Committee Act ("FACA" or "Act"), which requires advisory committees to open their meetings and many of their records to the public. WLF also claims an independent common law right of access to the committee's documents. We find that the committee at issue in this case is exempt from FACA, but we remand to the district court for fuller consideration of the common law claim.

I. Background

The United States Sentencing Commission ("Sentencing Commission" or "Commission") is an independent agency in the judicial branch, created by Congress to formulate and revise Sentencing Guidelines for the federal courts. 28 U.S.C. Sec. 991, et seq. In deciding whether to revise the Guidelines for environmental crimes, the Commission established an Advisory Working Group on Environmental Sanctions ("Advisory Group"). The Advisory Group consists of sixteen government employees and private citizens with expertise in environmental law; it is chaired by two members of the Sentencing Commission. Two of the sixteen committee members are employees of the Department of Justice ("DOJ"). In addition, DOJ's representative to the Sentencing Commission, Roger Pauley, has submitted comments on the Advisory Group's draft guidelines on behalf of DOJ.

The Federal Advisory Committee Act, 5 U.S.C.App. 2, requires, among other things, that the meetings of "advisory committees" be open to the public, id. Sec. 10(a)(1), and that "advisory committees" make their documents available for public inspection. Id. Sec. 10(b). But not every government-related advisory group is an "advisory committee" under the statute. FACA Sec. 3(2) states:

The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee"), which is--

(A) established by statute or reorganization plan, or

(B) established or utilized by the President, or

(C) established or utilized by one or more agencies,

in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government....

Id. Sec. 3(2) (emphasis added). "Agency" is defined by reference to the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 551(1). 5 U.S.C.App. 2 Sec. 3(3). Under the APA, " 'agency' means each authority of the Government of the United States," 5 U.S.C. Sec. 551(1), but does not include "the courts of the United States." 5 U.S.C. Sec. 551(1)(B).

WLF brought suit in the district court for equitable relief, seeking an order that the Advisory Group open its meetings and make its documents available to the public. 826 F.Supp. 10. WLF argued that FACA's commands apply to the Advisory Group for two independent reasons: first, because the Advisory Group is "established" by the Sentencing Commission, and because the Commission is an "agency" and not a "court of the United States"; and second, because the Advisory Group is "utilized" by the DOJ, which is also an "agency." Apart from its statutory claims, WLF also argued that the common law right of access to public documents requires the Advisory Group to release certain records of its deliberations for public scrutiny. (WLF also presented another claim, not at issue on this appeal, that the Commission lacked the authority to establish the Advisory Group. The district court dismissed this claim and WLF does not appeal the dismissal.)

The district court rejected all of WLF's arguments and granted summary judgment to the Commission on July 7, 1993. The court held that the Advisory Group is exempt from FACA and that the common law right of access does not extend to the Advisory Group's internal documents. WLF appeals the district court's ruling. This Court has granted WLF's motion for expedited appeal on the ground that the Advisory Group was likely to finish its work before oral argument, thus rendering this appeal moot; but we have denied injunctive relief pending appeal. As of oral argument, the Advisory Group continued to hold closed meetings and continued to maintain, but to deny public access to, the documents requested by WLF. Accordingly, this remains a live controversy, and we proceed to its merits.

II. Discussion
A. FACA Claims

The Commission concedes that, given the Advisory Group's composition and activities, it would be an "advisory committee" under FACA if it were "established or utilized by one or more agencies." 5 U.S.C.App. 2 Sec. 3(2)(C). WLF claims that the Advisory Group satisfies this provision for two independent reasons. First, it argues that the Advisory Group is "established" by an "agency"--the Sentencing Commission. The success of this argument depends upon the scope of the statutory exemption for "the courts of the United States" from the definition of "agency." Second, WLF claims that the Advisory Group is "utilized" by a different "agency"--the Department of Justice. Although DOJ is undoubtedly an "agency," the issue here is whether it "utilizes" the Advisory Group within the meaning of the Act.

1. Is the Sentencing Commission an "Agency?"

The first question is whether the Commission is entitled to the exception from FACA's (that is, the APA's) definition of "agency" for "the courts of the United States." The district court held that the "courts" exemption includes the entire judicial branch, of which the Commission is a part. Therefore, because the Advisory Group is "established" solely by the Commission, it is not "established" by an "agency" and it need not comply with FACA.

WLF argues that the district court's interpretation is contrary to the plain meaning of the statute. If Congress had meant to exclude the entire judicial branch, WLF contends, it would have said "the judicial branch of the United States," instead of "the courts of the United States." See Goldhaber v. Foley, 519 F.Supp. 466, 480-81 (E.D.Pa.1981). WLF then refers us to the oft-invoked canon that when the statutory language is plain, a court should look no further. E.g., Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993).

But the district court did look further. Despite WLF's contention that the plain language of the statute makes all else irrelevant, the court relied upon precedent to grant summary judgment to the Commission. Instead of finding a "plain meaning," then, the court relied upon countervailing stare decisis principles disfavoring judicial reinterpretations of statutory provisions. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 2370-71, 105 L.Ed.2d 132 (1989); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 629-30 n. 7, 107 S.Ct. 1442, 1450-51 n. 7, 94 L.Ed.2d 615 (1987); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 2070, 52 L.Ed.2d 707 (1977).

Over the years, virtually every case interpreting the APA exemption for "the courts of the United States" has held that the exemption applies to the entire judicial branch--at least to entities within the judicial branch that perform functions that would otherwise be performed by courts. See, e.g., In re Fidelity Mortgage Investors, 690 F.2d 35, 38-39 (2d Cir.1982), cert. denied sub nom. Lifetime Communities, Inc. v. Administrative Office of U.S. Courts, 462 U.S. 1106, 103 S.Ct. 2453, 77 L.Ed.2d 1333 (1983); United States v. Frank, 864 F.2d 992, 1013-14 (3d Cir.1988), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989); Pickus v. United States Bd. of Parole, 507 F.2d 1107, 1112 (D.C.Cir.1974); Wacker v. Bisson, 348 F.2d 602, 608 n. 18 (5th Cir.1965). Contra Goldhaber, 519 F.Supp. at 480-81. These decisions rely primarily upon the legislative history of the APA. That history indicates that the term "agency" was supposed to have substantially the same meaning in the APA as in two preexisting statutes: the Federal Reports Act of 1942, ch. 811, 56 Stat. 1079, and the Federal Register Act, ch. 417, 49 Stat. 500 (1935). The Federal Reports Act defined "Federal Agency" as including only entities "in the executive branch," while the Federal Register Act explicitly exempted entities in "the legislative and judicial branches of the Government." Both definitions, then, defined "agency" in terms of the branch of government in which the entity was (or was not) located--neither limited its exemption to "the courts," or any other unit smaller than one of the three branches. Fidelity Mortgage Investors, 690 F.2d at 38 (citing Administrative Procedure Act, Legislative History 79th Cong., 1944-46, S.Doc. No. 248, 79th Cong., 2d Sess. (1946)). In addition, the APA's Senate Committee report states that "the word 'agency' is defined in the Act 'by excluding legislative, judicial, and territorial authorities.' " Id. (quoting S.Rep. No. 752, 79th Cong., 1st...

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