Animal Legal Defense Fund, Inc. v. Shalala, 96-5011

• Decision Date: 10 January 1997
• Docket Number: No. 96-5011,96-5011
• Citation: 104 F.3d 424
• Parties: , 65 USLW 2485 ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellants, v. Donna E. SHALALA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 424

104 F.3d 424

322 U.S.App.D.C. 381, 65 USLW 2485

ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellants, v. Donna E. SHALALA, et al., Appellees.

No. 96-5011.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 2, 1996.

Decided Jan. 10, 1997.

Appeal from the United States District Court for the District of Columbia (94cv01003).

Eric R. Glitzenstein, Washington, DC, argued the cause for appellants, with whom Katherine A. Meyer, Washington, DC, and Valerie J. Stanley, Rockville, MD, were on the briefs.

Alisa B. Klein, Attorney, United States Department of Justice, Washington, DC, argued the cause for appellees Donna Shalala et al., with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Mark B. Stern, Attorney, United States Department of Justice, were on the brief. Patricia A. Millett, Attorney, Los Angeles, CA, entered an appearance.

Richard A. Meserve, Washington, DC, argued the cause for appellee National Academy of Sciences, with whom Elliott Schulder, James R. Wright and Audrey Byrd Mosley were on the brief. John F. Duffy, Fresno, CA, entered an appearance.

Before: SILBERMAN, GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellants challenge the district court's determination that a National Academy of Sciences committee, which promulgates and revises a guide on the care and use of laboratory animals for government agencies, is not subject to the Federal Advisory Committee Act because it is not "utilized" within the meaning of the statute. We reverse.

I.

The National Academy of Sciences (NAS), Appellee-Intervenor, was chartered by Congress in 1863 and has a duty to, "whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art." 36 U.S.C. § 253 (1994). The Academy's principal operating arm is the National Research Council, which includes as one of its subcomponents the Institute for Laboratory Animal Resources. For over four decades, the Research Council and the Institute have produced for the federal government the Guide for the Care and Use of Laboratory Animals, a scientific manual which includes guidelines for handling and monitoring the treatment of laboratory animals.

Although the Guide is distributed and referenced throughout the world, some of its primary users are federal agencies that have statutory duties to ensure that research laboratory animals are treated properly. Health and Human Services regulations, for instance, actually require that institutions funded by the National Institute of Health follow the most recent version of the Guide in adopting programs involving laboratory animals. See 48 C.F.R. § 380.205(a)(1) (1995). The United States Department of Agriculture has also incorporated the Guide's recommendations into regulations. See 56 Fed.Reg. 6,428 (Feb. 15, 1991). The Interagency Research Animal Committee, which consists of representatives from each federal agency that uses animals in research, refers readers of its government-wide Principles for the Utilization and Care of Vertebrate Animals Used in Testing, Research and Training to the Guide as an aid to the interpretation and execution of the Principles.

The most recent revision of the Guide--the 7th edition--is again being produced by a committee of the Research Council and the Institute (the "Guide Committee"). The Institute selected 16 individuals to serve on the Committee based on the recommendations of academics, industry scientists, toxicologists, veterinarians, members of the Academy, and others. A majority of the members are scientists of national stature who use animals in research and possess expertise in various areas of science, ethics, veterinary medicine, and animal welfare. The Institute had decided to revise the Guide at a workshop it convened in 1991, so it submitted a grant proposal to the NIH, which approved the grant in 1993. Representatives of the NIH and other federal agencies attended the Committee's first meeting and recommended new issues to be addressed by the updated Guide, but no federal agency further involved itself in the Committee's deliberative process. The Academy's rules on confidentiality prevented Committee members from discussing the substance of the Guide with representatives of the sponsoring agencies. The NAS informed the public of the Guide Committee's appointment and held public forums, but the Committee denied public access to its deliberative meetings.

Appellants, the Animal Legal Defense Fund, Psychologists for the Ethical Treatment of Animals, and the Association of Veterinarians for Animal Rights, sought access to those meetings and to any minutes, transcripts, or records of the Committee under the Federal Advisory Committee Act, 5 U.S.C.App. §§ 1-15 (1994) (FACA). Appellants named as defendants, individually and collectively, HHS, the Public Health Service, and NIH (collectively, "the government"). The NAS subsequently intervened as a co-defendant. The district court denied appellants' motion for a preliminary injunction to attend the meetings, and their appeal from that order was dismissed as moot when four days before oral argument the Committee conducted its final meeting, leaving nothing to enjoin. Animal Legal Defense Fund v. Shalala, 53 F.3d 363 (D.C.Cir.1995). On remand, the district court granted the defendants' motion for summary judgment, concluding that the Guide Committee was not an "advisory committee" subject to FACA because it was not "established or utilized by one or more agencies." Federal Deposit Insurance Act, § 3(2)(C), 5 U.S.C.A.App. 2.

II.

Congress enacted FACA in 1972 to control the establishment of advisory committees to the federal government and to allow the public to monitor their existence, activities, and cost. See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). The statute states:

For the purpose of this Act--

* * * * * *

(2) 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 except that such term excludes (i) the Advisory Commission on Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government.

5 U.S.C.App. § 3 (emphasis added). It is quite obvious that the Committee was and is used by HHS, but the term "utilized" was given a very narrow interpretation by the Supreme Court in Public Citizen. In so doing, however, the Court indicated quite explicitly in an extensive discussion, which appellants emphasize, that advisory committees formed by the NAS were precisely the sort of advisory committees that would be covered by the Act. See Public Citizen, 491 U.S. at 462-63, 109 S.Ct. at 2570-71. The government and the NAS respond that the Supreme Court's discussion regarding the NAS in that opinion was only dictum; the status of the NAS committee was not really in issue in that case, and therefore this case is governed by subsequent opinions of our court, particularly Washington Legal Found. v. United States Sentencing Comm'n, 17 F.3d 1446 (D.C.Cir.1994), and Food Chem. News v. Young, 900 F.2d 328 (D.C.Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 99 (1990), both of which applied Public Citizen and adopted a "management and control" test to determine whether a committee not established by a government agency is nevertheless "utilized." It is indisputable that no government agency could be thought to exercise that degree of influence over the Guide Committee.

The case before us, then, turns on a careful reading of these three previous cases. We start naturally with Public Citizen. The issue before the Supreme Court was whether FACA covered the ABA's Standing Committee, which although not "established" by the government, had been for many years formally consulted by the Justice Department, on behalf of the President, as to the relative qualifications of individuals whom the Administration intended to nominate for federal judgeships. Since the Standing Committee solicited views of lawyers, judges, and others on a confidential basis, and its deliberations were also supposed to be confidential, it was argued that the application of FACA to it would be its death knell. FACA requires that committees file charters, notify the public in advance of meetings, open the doors to those meetings to all comers, keep detailed minutes, and perhaps most onerous, make documents available for public inspection subject to Freedom of Information Act limitations. 5 U.S.C.App. §§ 9(c), 10(a)-(c). An application of those requirements allegedly would have made it impossible for the Standing Committee to continue to operate.

Justice Brennan, writing for the majority, observed that the statute "[r]ead unqualifiedly ... would extend FACA's requirements to any group of two or more persons, or at least any formal organization, from which the President or an executive agency seeks advice." 491 U.S. at 452, 109 S.Ct. at 2566. It should be noted that the "definition" in the statute never fully explains what is an advisory committee; this is why the majority (and the dissenters) in Public Citizen thought that determining whether a private group consulted by the executive branch was a FACA advisory committee--thus triggering all the requirements of the statute--depended...