Center for Arms Control and Non-Proliferation v. Pray

• Decision Date: 27 June 2008
• Docket Number: No. 07-5023.,07-5023.
• Citation: 531 F.3d 836
• Parties: CENTER FOR ARMS CONTROL AND NON-PROLIFERATION, Appellant v. John I. PRAY, Jr., Deputy Executive Secretary of the National Security Council, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

531 F.3d 836

CENTER FOR ARMS CONTROL AND NON-PROLIFERATION, Appellant v. John I. PRAY, Jr., Deputy Executive Secretary of the National Security Council, Appellee.

No. 07-5023.

United States Court of Appeals, District of Columbia Circuit.

Argued March 11, 2008.

Decided June 27, 2008.

Appeal from the United States District Court for the District of Columbia (No. 05cv00682).

Jules Zacher argued the cause and filed the briefs for appellant.

Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, Jonathan F. Cohn, Deputy Assistant Attorney General, and Mark B. Stern, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

The Center for Arms Control and Non-Proliferation claims the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction violated the Federal Advisory Committee Act (FACA), Pub.L. No. 92-463, 86 Stat. 770 (1972) (codified at 5 U.S.C. app.), by refusing to make certain records publicly available. The district court dismissed the case on the ground that the Commission is exempt from the FACA. We agree and therefore affirm the judgment.

I. Background

President George W. Bush established the Commission in 2004 "for the purpose of advising the President ... in order to ensure the most effective counterproliferation capabilities of the United States and response to the September 11, 2001, terrorist attacks and the ongoing threat of terrorist activity." Exec. Order No. 13,328 §§ 1, 2(a), 69 Fed.Reg. 6901, 6901 (Feb. 6, 2004). Chaired by Judge Laurence Silberman and former Senator Charles Robb, the Commission comprised a number of experts from the public and private sectors. Commission on the Intelligence Capabilities, Commissioners, at http://www. wmd.gov/commissioners.html. After conducting a study, the Commission was to "submit to the President ... a report of [its] findings ... and its specific recommendations." Exec. Order No. 13,328 § 2(d), 69 Fed.Reg. at 6902. The President also instructed the Central Intelligence Agency and "other components of the Intelligence Community" to "utilize the Commission and its resulting report." Exec. Order No. 13,328 § 2(d), 69 Fed. Reg. at 6902.

Concerned about disclosing sensitive information, the Commission closed its meetings to the public, see, e.g., Notice of Meeting of the Commission on the Intelligence Capabilities, 69 Fed.Reg. 31,820 (June 7, 2004), but made some efforts to inform the public of its activities. For example, after a meeting the Commission would release a public statement identifying some of the participants in the meeting and summarizing the issues discussed. See, e.g., Joint Statement of the Co-Chairmen of the Commission on the Intelligence Capabilities, at http://www.wmd.gov/20040716.html (July 15, 2004). The Commission also maintained a public reading room, where it made available meeting agendas and summaries. On March 31, 2005 the Commission duly submitted to the President its report, the bulk of which was made publicly available. See Comm'n on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction, Report to the President of the United States, xi (2005), available at http://www.wmd.gov/ report/wmd—report.pdf.

Dissatisfied with the extent of the Commission's disclosures, the Center asked the Commission for the minutes of its meetings and for other records. Then, having received no response, the Center sued the Commission and its Executive Director, Vice Admiral (Ret.) John Scott Redd. The Center sought a declaration that the Commission and Redd had violated §§ 10(b), 10(c) and 11(a) of the FACA and a writ of mandamus compelling them to "publicly releas[e] ... all unclassified materials which are covered by" those sections of the Act.

While the case was pending, the Commission wound up its business, transferred legal custody of its records to the National Security Council (NSC), transferred physical custody of those records to the National Archives and Records Administration, and dissolved. Because the Commission no longer existed and Redd "no longer ha[d] authority or control over Commission documents," the district court dismissed as moot the Center's claims against the Commission and Redd.

Shortly before that ruling, however, the Center, presumably in order to avert its looming mootness problem, joined as a defendant Stephen Hadley, the Assistant to the President for National Security Affairs, commonly referred to as the National Security Advisor. The Government moved to dismiss the claims against Hadley (for whom John I. Pray, Jr., Deputy Executive Secretary of the NSC, has since been substituted) on various grounds, two of which are relevant here. First, the Government contended the Commission came within the exemption from the FACA as provided in § 4(b)(1), for advisory committees "utilized by the Central Intelligence Agency." Second, the Government argued that, even if the Commission were not exempt, mandamus relief would not lie because "neither ... [Pray] nor the NSC has a duty to plaintiff under any of the three provisions of FACA on which plaintiff relies—let alone a `clear and indisputable' and `clear and compelling' duty that is `free from doubt'—to make publicly available the former Commission's documents." See, e.g., Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (writ of mandamus available "only if the defendant owes [plaintiff] a clear nondiscretionary duty").

The district court first determined that, unless the Commission was exempt from the FACA, mandamus relief would be appropriate because "[t]he issue is not the continued existence of the Commission; it is the continued existence of the documents." The court then granted the Government's motion to dismiss on the ground that the Commission was exempt from the FACA because it was "utilized by" the CIA. The court "read[] the word `utilize' in FACA § 4(b) in accordance with its ordinary meaning: `to put to use.'"

II. Analysis

The Center contends the Commission is not exempt from the FACA. The Government, defending the district court's ruling, argues the Commission was exempt because it was "utilized by" the CIA. In the alternative, the Government argues, much as it did before the district court, that the Center is not entitled to mandamus relief because "the NSC had no ... specific and nondiscretionary duty to revisit the Commission's determinations as to which materials could properly be released."

We hold the Commission was exempt from the FACA. Accordingly, we do not address whether mandamus relief would otherwise be available.^*

A. The FACA

The Congress enacted the FACA in order "to control the establishment of advisory committees to the federal government and to allow the public to monitor their existence, activities, and cost." Animal Legal Defense Fund v. Shalala, 104 F.3d 424, 426 (1997); see FACA § 2. To those ends, the FACA requires the President, the relevant standing committees of the Congress, the relevant agency heads, and the Administrator of General Services to review the activities and finances of each advisory committee, and requires that the membership of each advisory committee "be fairly balanced in terms of point of view represented." FACA §§ 5-8; see In re Cheney, 406 F.3d 723, 727 (D.C.Cir. 2005) (en banc); Nat'l Anti-Hunger Coal. v. Exec. Comm. of the President's Private Sector Survey of Cost Control, 711 F.2d 1071, 1073 & n. 1 (D.C.Cir.1983) ("reject[ing] the ... contention that the `fairly balanced' requirement ... is not binding on the President").

The FACA also imposes upon advisory committees a number of disclosure obligations, three of which the Center claims the Commission violated. Every advisory committee is required, under § 10(c) of the Act, to keep "[d]etailed minutes of each meeting," and, under § 11(a), to "make available to any person ... copies of transcripts of [its] meetings." In addition, § 10(b) provides

the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection.

Pursuant to § 3(2) of the FACA, "any committee, board, commission," etc., qualifies as an "advisory committee" if it was

(A) established by statute ..., (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.

We have on several occasions addressed the meaning of the term "utilized" in § 3(2) to determine whether a committee was subject to the requirements of the FACA. Although this case concerns the meaning of "utilized" in the provision of § 4 exempting from the FACA advisory committees "utilized by" the CIA, prior judicial interpretations of that term as used in § 3 bear upon our analysis of the exemption in § 4.

B. "Utilized" in § 3

The seminal decision on the meaning of "utilized" in § 3 is Public Citizen v. United States Department of Justice, in which the Supreme Court held the Standing Committee on the Federal Judiciary of the American Bar Association was not "utilized" by the Department of Justice or by the President in the course of screening potential nominees for federal judgeships. 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). The Court acknowledged that the Executive "utilized" the ABA Committee in the "common sense" meaning of the word, that is, to "make[] use of." Id. at 452, 109 S.Ct. 2558. The Court was nonetheless reluctant to adopt the "unqualified[]" meaning of such a...