Naacp Legal Def. & Educational Fund, Inc. v. Barr, Civil Action No. 20-1132 (JDB)

Decision Date01 October 2020
Docket NumberCivil Action No. 20-1132 (JDB)
Parties NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., Plaintiff, v. William P. BARR, in his official capacity as Attorney General of the United States, et al., Defendants.
CourtU.S. District Court — District of Columbia

Samuel Spital, Ashok Chandran, Pro Hac Vice, Natasha Merle, Pro Hac Vice, Steven C. Lance, Jr., Pro Hac Vice, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Plaintiff.

Bradley P. Humphreys, Elizabeth J. Shapiro, U.S. Department of Justice, Washington, DC, for Defendants.


JOHN D. BATES, Senior United States District Judge

This case involves the confluence of the federal government's statutory obligations to ensure transparency and "fairly balanced" membership in forming advisory committees and the vital subject of policing in America during this time of great turmoil over racial injustice and allegations of police misconduct. The Court concludes that the government has not satisfied those obligations in forming and conducting a commission in 2020 to examine the sensitive and important issues affecting American law enforcement and the communities they serve.

In October 2019, President Trump directed the Attorney General to establish the Presidential Commission on Law Enforcement and the Administration of Justice ("Commission") to study a broad range of issues regarding law enforcement and the criminal justice system. After studying the issues, the Commission was to make recommendations to the Attorney General for ultimate submission to the President on actions to address crime, increase respect for the law, and assist victims. See Exec. Order No. 13,896, 84 Fed. Reg. 58,595 (Oct. 28, 2019). The Attorney General, in turn, created that Commission in January 2020 in order to "conduct a modern fresh evaluation of the salient issues affecting American law enforcement and the communities they protect" by focusing on issues that will enable law enforcement "to safeguard the public and maintain a positive relationship with their communities." See Implementation Memorandum for Heads of Department Components ("Implementation Memo") [ECF No. 25-5] at 1. Working groups addressing a wide range of fifteen subjects, including "social problems impacting public safety" and "respect for law enforcement," were to assist in the Commission's efforts. Id. at 4–6.

The Attorney General stressed the need to hear from "[a] diversity of backgrounds and perspectives" such as "community organizations, civic leadership, civil rights and victim's rights organizations, criminal defense attorneys, academia, social service organizations, and other entities that regularly interact with American law enforcement." Id. at 2. Despite these stated goals, however, the Commission's membership consists entirely of current and former law enforcement officials. No Commissioner has a criminal defense, civil rights, or community organization background. And Commission proceedings have been far from transparent. Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today.

But that is not the role of this Court. Here, the NAACP Legal Defense and Education Fund ("LDF") has challenged the composition and operation of the Commission under the Federal Advisory Committee Act ("FACA"). Passed in 1972, FACA requires, among other things, that covered federal advisory committees be "fairly balanced" in the viewpoints represented, that meetings be open and publicly noticed, that a charter be prepared and filed, and that a designated federal officer be appointed to ensure compliance with FACA. See 5 U.S.C. app. 2 §§ 1 – 16.

LDF has now moved for summary judgment, arguing that the Commission has violated multiple provisions of FACA. In the face of LDF's challenges, the government does not really defend the composition of the Commission as "fairly balanced" or contest the other transparency and oversight failures. Instead, the government argues that FACA does not apply to the Commission and that the case should be dismissed on standing or justiciability grounds. The Court disagrees. LDF has standing, the case is justiciable, and the exemption from FACA that the government relies upon is not applicable to the Commission.

Hence, the Court will grant summary judgment in favor of LDF on several of its claims and order that Commission proceedings be halted—and no work product released—until the requirements of FACA are satisfied.

I. Federal Advisory Committee Act

FACA, enacted in 1972, was "born of a desire to assess the need for the ‘numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government.’ " Pub. Citizen v. Dep't of Justice, 491 U.S. 440, 445–46, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (quoting 5 U.S.C. app. 2 § 2(a) ). "Its purpose was to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature." Id. at 446, 109 S.Ct. 2558. FACA, therefore, would "cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals." Id. at 453, 109 S.Ct. 2558.

To achieve these ends, FACA imposes several requirements on "advisory committees." See 5 U.S.C. app. 2 §§ 1 – 16. An "advisory committee" is "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" that is "established" by statute, or "established or utilized" by the President or by one or more federal agencies, "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." Id. § 3(2). While the definition of "advisory committee" is broad, it excludes "any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government" or that is "created by the National Academy of Sciences or the National Academy of Public Administration." Id. In addition, the Unfunded Mandates Reform Act ("UMRA"), enacted in 1995, provides an exemption from FACA for "the exchange of official views regarding the implementation of public laws requiring shared intergovernmental responsibilities or administration." H.R. Rep. No. 104-76, at 40 (1995) (Conf. Rep.). This limited UMRA exemption—invoked by the government here—applies only if (1) "meetings are held exclusively between Federal officials and elected officers of State, local, and tribal governments (or their designated employees with authority to act on their behalf) acting in their official capacities"; and (2) "such meetings are solely for the purpose of exchanging views, information, or advice relating to the management or implementation of Federal programs established pursuant to public law that explicitly or inherently share intergovernmental responsibilities or administration." 2 U.S.C. § 1534(b).

Among other requirements, an advisory committee subject to FACA cannot meet until a "charter has been filed" with the head of the agency to which it reports and with the House and Senate committees having legislative jurisdiction over that agency. 5 U.S.C. app. 2 § 9(c). The charter must also be filed with the Library of Congress and the Committee Management Secretariat of the General Services Administration ("GSA").1 41 C.F.R. § 102-3.70(a)(3)(4). Each committee must also have a "designated [ ] officer or employee of the Federal Government to chair or attend each meeting." 5 U.S.C. app. 2 § 10(e). The designated federal officer serves as the primary contact for members of the public who seek more information about the advisory committee's meetings and hearings. 41 C.F.R. § 102-3.150(a)(5). Moreover, advisory committees must give notice of any meetings in the Federal Register at least fifteen days before the meeting is held. 5 U.S.C. app. 2 § 10(a)(2) ; 41 C.F.R. § 102-3.150(a). Meetings must be open to the public, 5 U.S.C. app. 2 § 10(a)(1), and each committee must make its records and drafts publicly available, id. § 10(b)(c).

As for composition, "the membership of [an] advisory committee [must] be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee." Id. § 5(b)(2). Relatedly, the directive establishing an advisory committee must "contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment." Id. § 5(b)(3).

II. Presidential Commission on Law Enforcement and the Administration of Justice

On October 28, 2019, President Trump signed Executive Order 13,896 directing Attorney General Barr to establish the Presidential Commission on Law Enforcement and the Administration of Justice. Exec. Order No. 13,896, 84 Fed. Reg. at 58,595, § 2(a). The Commission's function would be to "study issues related to law enforcement and the administration of justice and to make recommendations to the Attorney General, who shall submit a report and recommendations to the President, on actions that can be taken to prevent, reduce, and control crime, increase respect for the law, and assist victims." Id. § 3(a)....

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