Center for Auto Safety v. Cox, 76-1922

Decision Date14 June 1978
Docket NumberNo. 76-1922,76-1922
Citation188 U.S.App.D.C. 426,580 F.2d 689
PartiesCENTER FOR AUTO SAFETY et al. v. William M. COX, Individually, and as Federal Highway Administrator, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia. (D.C.Civil 74-1662).

Judith S. Feigin, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Rex E. Lee, Asst. Atty. Gen., Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., was on brief, for appellants.

L. Irene Bowen, Washington, D. C., for appellee. Mark Steinbach and Clarence M. Ditlow, III, Washington, D. C., were on brief for appellees.

Charles A. Miller, Washington, D. C., filed a brief on behalf of A.A.S.H.T.O., amicus curiae urging the order of the District Court be vacated. George D. Busbee, and David R. Trippe, Atlanta, Ga., filed a brief on behalf of National Governors Conference, amicus curiae urging that the order of the District Court be set aside.

Before WRIGHT, Chief Judge, and BAZELON and ROBB, Circuit Judges.

Opinion for the Court filed by ROBB, Circuit Judge.

ROBB, Circuit Judge.

In this action, begun in the District Court by Center for Auto Safety, the court held that the American Association of State Highway and Transportation Officials (AASHTO) is an advisory committee to the Federal Highway Administration (FHWA) within the meaning of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I. Center for Auto Safety v. Tiemann, 414 F.Supp. 215 (D.D.C.1976). The Federal Highway Administrator appeals.

AASHTO is an organization of state and federal transportation officials, established in 1914, to foster the development of a nationwide integrated transportation system. The active membership consists of the heads of the various state transportation departments. Officials of the Department of Transportation, generally from the FHWA, sit on AASHTO committees in non-voting capacities. The Secretary of Transportation, or his designee, is a non-voting Ex officio member of the Executive Committee, the governing body of AASHTO. AASHTO is financed by annual dues payments of its members. Dues assessments in 1976 were $318,016.10 including $5,319.00 paid by the Federal Department of Transportation. Center for Auto Safety is a non-profit corporation interested in transportation issues.

The controversy arose out of the 1973 amendments to the Federal-aid Highway Act, 23 U.S.C. § 101 Et seq. The Act provides that states may receive federal financial assistance for highway construction, subject to supervision by the Secretary of Transportation to ensure that minimum safety standards are met. In 1973 Congress amended the Act to provide an alternative procedure whereby the Secretary may discharge his responsibility for the safety of highways built by the states with federal funds: instead of requiring federal inspectors to review each project, the Secretary may accept certification by the state that the projects "will be carried out in accordance with State laws . . . and standards which will accomplish the policies and objectives contained in or issued pursuant to this title." 23 U.S.C. § 117(a) (1976). This alternative procedure is known as "Certification Acceptance."

Shortly after the passage of the amendments, representatives of the FHWA circulated drafts of proposed regulations on Certification Acceptance to state and local governments, to the Advisory Commission on Intergovernmental Relations, and to AASHTO. Representatives of the FHWA met with AASHTO's Executive Director to discuss the proposed regulations and as a result of the meeting, forwarded "review packages" of materials on the proposed Certificate Acceptance regulations to the members of the FHWA-AASHTO Joint Committee on Directives Review, for comment. After comments were received a second draft of the regulations was prepared and FHWA officials discussed these with the Executive Director of AASHTO in April 1974. The regulations were promulgated, effective immediately, 1 on May 8, 1974.

In April 1974 the State of Georgia submitted to the Secretary a proposed Certification Acceptance plan for Georgia. In August Center for Auto Safety submitted comments on the Georgia plan, as well as on the Certification Acceptance regulations. In September the Secretary responded by letter to the comments on the Georgia plan, and at about the same time he approved that plan, the first such state plan approved. Thereafter, Center for Auto Safety learned that AASHTO had participated in the promulgation of the Certification Acceptance regulations and, pursuant to the FACA, requested transcripts of the meetings between FHWA and AASHTO officials. When the request was denied the Center filed this suit.

Center for Auto Safety alleged that the Secretary had violated the rulemaking requirements of the APA in promulgating the Certification Acceptance regulations and in approving the Georgia plan; that the FHWA consultation with AASHTO concerning the proposed regulations had violated the Federal Advisory Committee Act; and finally that the approval of the Georgia plan had violated the requirements of the Federal-aid Highway Act.

Holding that the Federal-aid highway program is a grant program exempt from the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. § 553(a)(2), the District Court dismissed the counts of the complaint alleging violations of the APA. On the claim under the Advisory Committee Act, the District Court granted summary judgment in favor of the Center for Auto Safety and enjoined further meetings between representatives of the Federal-aid highway program and AASHTO without compliance with "all of the requirements of the Federal Advisory Committee Act." The court deferred judgment on the claim that the approval of the Georgia plan violated the requirements of the Federal-Aid Highway Act, pending the filing of the administrative record. The Administrator appeals from the ruling on the Federal Advisory Committee Act claim. See Fed.R.Civ.P. 54(b).

Because we conclude that the FHWA utilized AASHTO as an advisory committee during the development of the Certification Acceptance regulations, we affirm. We agree with the Administrator, however, that the District Court's order is too broad. Accordingly, the injunction must be modified to apply the Federal Advisory Committee Act only to consultation between the FHWA and AASHTO on matters concerning proposed regulations.

I.

The Federal Advisory Committee Act sets out a comprehensive scheme to control the creation and operation of advisory committees in the executive branch of the federal government. The Act broadly defines an advisory committee as

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 . . .

5 U.S.C. App. I § 3(2) (emphasis added).

The District Court held that AASHTO had been "utilized by" the FHWA as an advisory committee because FHWA officials met on several occasions with AASHTO officials to discuss the proposed Certification Acceptance regulations and because a "review package" of the proposal was sent to members of AASHTO's Directives Review Committee for comment.

The Administrator contends that the District Court erred in failing to give effect to two exceptions in the Act limiting the definition of an advisory committee. The first exception exempts "any committee which is composed wholly of full-time officers or employees of the Federal Government," 5 U.S.C. App. I § 3(2)(iii) and the second exempts "any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies," Id. § 4(c). The Administrator argues that taken together sections 3(2)(iii) and 4(c) indicate a clear congressional intent to exclude from FACA all groups of government employees. Therefore, the argument goes, "(i)t makes no sense to hold that AASHTO a hybrid composed of both state and federal employees . . . is somehow, because of this mixture, within the Act's coverage." (Brief at 19) But we think it makes even less sense to infer that if Congress intended to exclude all groups of government employees it would choose such a convoluted route as sections 3(2)(iii) and 4(c) to express that intent. More important, as will be seen, section 4(c) does not exclude all groups of state officials.

To qualify for exemption under section 4(c) AASHTO must meet two conditions: it must be a state or local committee and it must be established to advise or make recommendations to state or local agencies. We doubt whether a nationally oriented organization like AASHTO could meet the first requirement, but assuming it could, there is no doubt that it does not meet the second.

The Administrator asserts that AASHTO is simply a clearinghouse for the transmission of views and ideas between the states and the federal government. We think this characterization is too modest. AASHTO's constitution states its purpose to foster the development of a nationwide, integrated transportation system; its by-laws charge its policy committee with preparing official positions on legislative proposals. AASHTO representatives testify regularly before Congress on matters affecting transportation. The list of FHWA design standards for Federal-aid highways reads like an index to AASHTO publications. 23 C.F.R. Part 625 (1977). A former AASHTO member who became the Federal...

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