491 U.S. 440 (1989), 88-429, Public Citizen v. United States Department of Justice

Docket Nº:No. 88-429
Citation:491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377, 57 U.S.L.W. 4793
Party Name:Public Citizen v. United States Department of Justice
Case Date:June 21, 1989
Court:United States Supreme Court

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491 U.S. 440 (1989)

109 S.Ct. 2558, 105 L.Ed.2d 377, 57 U.S.L.W. 4793

Public Citizen


United States Department of Justice

No. 88-429

United States Supreme Court

June 21, 1989

Argued April 17, 1989




To aid the President in fulfilling his constitutional duty to appoint federal judges, the Department of Justice regularly seeks advice from the Standing Committee on Federal Judiciary of the American Bar Association (ABA) regarding potential nominees for judgeships. The ABA Committee's investigations, reports, and votes on potential nominees are kept confidential, although its rating of a particular candidate is made public if he or she is in fact nominated. Appellant Washington Legal Foundation (WLF) filed suit against the Justice Department after the ABA Committee refused WLF's request for the names of potential nominees it was considering and for its reports and minutes of its meetings. The action was brought under the Federal Advisory Committee Act (FACA), which, among other things, defines an "advisory committee" as any group "established or utilized" by the President or an agency to give advice on public questions, and requires a covered group to file a charter, afford notice of its meetings, open those meetings to the public, and make its minutes, records, and reports available to the public. Joined by appellant Public Citizen, WLF asked the District Court to declare the Committee an "advisory group" subject to FACA's requirements and to enjoin the Department from utilizing the ABA Committee until it complied with those requirements. The court dismissed the complaint, holding that the Department's use of the ABA Committee is subject to FACA's strictures, but ruling that applying FACA to the ABA Committee would unconstitutionally infringe on the President's Article II power to nominate federal judges and violate the doctrine of separation of powers.


1. Appellants have standing to bring this suit. The refusal to permit them to scrutinize the ABA Committee's activities [109 S.Ct. 2560] to the extent FACA allows constitutes a sufficiently distinct injury to provide standing, and the fact that other groups or citizens might make the same complaint as appellants does not lessen that injury. Moreover, although the statute's

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disclosure exemptions might bar public access to many of the meetings appellants seek to attend and many of the documents they wish to view, the exemptions probably would not deny access to all meetings and documents, particularly discussions and documents regarding the ABA Committee's overall functioning, and would not excuse the ABA Committee's noncompliance with FACA's other provisions, such as those requiring a covered organization to file a charter and give notice of its meetings. Thus, appellants may gain significant and genuine relief if they prevail in their suit, and such potential gains are sufficient to give them standing. Pp. 448-451.

2. FACA does not apply to the Justice Department's solicitation of the ABA Committee's views on prospective judicial nominees. Pp. 451-467.

(a) Whether the ABA Committee is an "advisory committee" under FACA depends upon whether it is "utilized" by the President or the Department within the statute's meaning. Read unqualifiedly, that verb would extend FACA's coverage to the ABA Committee. However, since FACA was enacted to cure specific ills -- particularly the wasteful expenditure of public funds for worthless committee meetings and biased proposals by special interest groups -- it is unlikely that Congress intended the statute to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice. When the literal reading of a statutory term compels an odd result, this Court searches beyond the bare text for other evidence of congressional intent. Pp. 451-455.

(b) Although the question is a close one, a careful review of the regulatory scheme prior to FACA's enactment and that statute's legislative history strongly suggests that Congress did not intend that the term "utilized" apply to the Justice Department's use of the ABA Committee. FACA's regulatory predecessor, Executive Order No. 11007, applied to advisory committees formed by a governmental unit, and to those not so formed when "being utilized by [the Government] in the same manner as a Government-formed . . . committee." That the ABA Committee was never deemed to be "utilized" in the relevant sense is evidenced by the fact that no President operating under the Order or any Justice Department official ever applied the Order to the ABA Committee, despite its highly visible role in advising the Department as to potential nominees. That is not surprising, since the ABA Committee -- which was formed privately, rather than at the Government's prompting, to assist the President in performing a constitutionally specified function, and which receives no federal funds and is not amenable to the strict management by agency officials envisaged by the Order -- cannot easily be said to have been "utilized" in the same manner as a Government-formed committee. Moreover, FACA adopted many of the Order's provisions, and there is

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considerable evidence in the statute's legislative history that Congress sought only to achieve compliance with FACA's more stringent requirements by advisory committees already covered by the Order and by Presidential advisory committees, and that the statute's "or utilized" phrase was intended to clarify that FACA applies to committees "established . . . by" the Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations "for" public agencies as well as "by" such agencies themselves. Read in this way, the word "utilized" does not describe the Justice Department's use of the ABA Committee. Pp. 455-465.

(c) Construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties. Where, as here, a plausible alternative construction [109 S.Ct. 2561] exists that will allow the Court to avoid such problems, the Court will adopt that construction. See, e.g., Crowell v. Benson, 285 U.S. 22, 62. Pp. 465-467.

691 F.Supp. 483, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, p. 467. SCALIA, J., took no part in the consideration or decision of the cases.

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BRENNAN, J., lead opinion

JUSTICE BRENNAN delivered the opinion of the Court.

The Department of Justice regularly seeks advice from the American Bar Association's Standing Committee on Federal Judiciary regarding potential nominees for federal judgeships. The question before us is whether the Federal Advisory Committee Act (FACA), 86 Stat. 770, as amended, 5 U.S.C.App. § 1 et seq. (1982 ed. and Supp.V), applies to these consultations, and, if it does, whether its application interferes unconstitutionally with the President's prerogative under Article II to nominate and appoint officers of the United States; violates the doctrine of separation of powers; or unduly infringes the First Amendment right of members of the American Bar Association to freedom of association and expression. We hold that FACA does not apply to this special advisory relationship. We therefore do not reach the constitutional questions presented.



The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Supreme Court Justices and, as established by Congress, other federal judges. Art. II, § 2, cl. 2. Since 1952, the President, through the Department of Justice, has requested advice from the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee) in making such nominations.

The American Bar Association is a private voluntary professional association of approximately 343,000 attorneys. It has several working committees, among them the advisory body whose work is at issue here. The ABA Committee consists of 14 persons belonging to, and chosen by, the American Bar Association. Each of the 12 federal judicial Circuits (not including the Federal Circuit) has one representative on the ABA Committee, except for the Ninth Circuit, which has

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two; in addition, one member is chosen at large. The ABA Committee receives no federal funds. It does not recommend persons for appointment to the federal bench of its own initiative.

Prior to announcing the names of nominees for judgeships on the courts of appeals, the district courts, or the Court of International Trade, the President, acting through the Department of Justice, routinely requests a potential nominee to complete a questionnaire drawn up by the ABA Committee and to submit it to the Assistant Attorney General for the Office of Legal Policy, to the chair of the ABA Committee, and to the committee member (usually the representative of the relevant judicial Circuit) charged with investigating the nominee. See American Bar Association Standing Committee on Federal Judiciary, What It Is and How It Works (1983), reprinted in App. 43-49; Brief for Federal Appellee 2.1 The potential nominee's answers and the referral of his or her name [109 S.Ct. 2562] to the ABA Committee are kept confidential. The committee member conducting the investigation then reviews the legal writings of the potential nominee, interviews judges, legal scholars, and other attorneys regarding the potential nominee's qualifications, and discusses the matter confidentially with representatives of various professional organizations and other groups. The committee member also interviews the potential...

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