Claybrook v. Slater, 96-5189

• Decision Date: 29 April 1997
• Docket Number: No. 96-5189,96-5189
• Citation: 111 F.3d 904
• Parties: Joan B. CLAYBROOK, Appellant, v. Rodney E. SLATER, Administrator, Federal Highway Administration, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 904

111 F.3d 904

324 U.S.App.D.C. 145

Joan B. CLAYBROOK, Appellant, v. Rodney E. SLATER, Administrator, Federal Highway Administration, Appellee.

No. 96-5189.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 24, 1997.

Decided April 29, 1997.

David C. Vladeck, Washington, DC, argued the cause for the appellant. Michael E. Tankersley was on brief. Lucinda A. Sikes entered an appearance.

Jonathan T. Foot, Attorney, United States Department of Justice, argued the cause for the appellee. Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Mark B. Stern and Michael S. Raab, Attorneys, United States Department of Justice, were on brief.

Before WILLIAMS, HENDERSON and RANDOLPH, Circuit Judges.

KAREN LeCRAFT HENDERSON, Circuit Judge.

An advisory committee to the Federal Highway Administration (FHWA or agency) passed a resolution criticizing purported inaccuracies in the fund-raising literature of an organization called Citizens for Reliable and Safe Highways (CRASH). Appellant Joan Claybrook (Claybrook), who is CRASH's co-chair, sued Rodney Slater (Slater), the FHWA Administrator at that time, ¹ claiming he failed to prevent the advisory committee from taking the allegedly ultra vires action. She asserted that the committee should not have voted on the resolution because the agenda for the committee meeting at which the resolution passed did not include the resolution and, further, that Slater had a duty to prevent the vote. The district court dismissed the action on Claybrook's lack of standing. We affirm, albeit on a different ground.

I. FACTS

In 1994, Slater established the National Motor Carrier Advisory Committee (NMCAC or Committee) to provide advice on FHWA's motor carrier programs, including its highway safety efforts. JA 52-55. One of NMCAC's members was a representative of the American Trucking Association (ATA).

According to the complaint, Claybrook, as co-chair of CRASH, is an advocate for highway safety measures, including safety restrictions that apply to trucks. In connection with its lobbying efforts decrying the North American Free Trade Agreement's effect on U.S. highway safety laws, CRASH issued a fund-raising letter stating that "heavier--dangerously heavier--trucks and 'Monster Trucks' with three trailers can swarm across the Mexican and Canadian borders into the U.S." Id. at 73 (emphasis omitted). According to Claybrook, the statement is accurate because Mexico allows heavier trucks than does the United States and three-trailer trucks are authorized in Canada. Appellant's Br. 10. Three-trailer trucks, however, are not authorized in Mexico.

ATA took issue with CRASH's literature and prepared for NMCAC's consideration a resolution criticizing CRASH for making allegedly false statements. JA 137. Although the matter was not on its agenda, NMCAC voted on and approved a modified version of the resolution at its September 13, 1995 meeting. ² Id. at 80. Jill Hochman (Hochman), FHWA's representative on NMCAC, attended the meeting and was concerned that the Committee would adopt the resolution but did not adjourn the meeting or otherwise attempt to block the resolution. Id. at 114.

The Committee sent the resolution to Slater for him to take "appropriate action." Id. at 80. Slater's only action was to write to the Committee rejecting the resolution and expressing his concern that the Committee had been used as a vehicle for one private entity to criticize another. ³ Id. at 123. ATA subsequently featured the resolution prominently in an advertising campaign opposing CRASH's lobbying efforts. Id. at 149.

Claybrook brought an action alleging that Slater violated the Federal Advisory Committee Act, 5 U.S.C. App. §§ 1-15 (FACA or the Act), by allowing NMCAC to pass a resolution criticizing CRASH even though the matter was not on the Committee's agenda and was, in Claybrook's view, outside the Committee's authority. ⁴ The district court concluded that Claybrook lacked standing to bring the suit and therefore granted Slater's motion to dismiss or, in the alternative, for summary judgment.

II. DISCUSSION

A party has standing if he suffers an "injury in fact," the injury is "fairly traceable" to the defendant's challenged action and a favorable decision likely will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). An injury in fact occurs when the defendant has invaded the plaintiff's legally protected interest and the resulting injury is particularized and actual or imminent. Id. at 560, 112 S.Ct. at 2136. The primary issue in dispute is whether Claybrook possesses a legally protected interest in enforcing FACA. ⁵ In Slater's view, the FACA provisions Claybrook relies upon do not create a legal duty the non-performance of which invaded her legally protected interest. Specifically, he contends that FACA does not require an agency representative who is a member of an advisory committee to prevent the committee from acting on a non-agenda, and therefore unauthorized, item. If Hochman, FHWA's representative on the Committee, had no duty to prevent NMCAC from voting on the resolution, then Claybrook's interest in Hochman's preventing the vote is not legally protected. In that case, she has not suffered an injury in fact and thus lacks standing.

Whether a plaintiff has a legally protected interest (and thus standing) does not depend on whether he can demonstrate that he will succeed on the merits. Otherwise, every unsuccessful plaintiff will have lacked standing in the first place. Thus, for example, one can have a legal interest in receiving government benefits and consequently standing to sue because of a refusal to grant them even though the court eventually rejects the claim. See generally Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (plaintiffs had standing to bring suit under FACA although claim failed). Indeed, in Lujan the Court characterized the "legally protected interest" element of an injury in fact simply as a "cognizable interest" and, without addressing whether the claimants had a statutory right to use or observe an animal species, concluded that the desire to do so "undeniably" was a cognizable interest. Lujan, 504 U.S. at 562-63, 112 S.Ct. at 2137-38.

On the other hand, if the plaintiff's claim has no foundation in law, he has no legally protected interest and thus no standing to sue. See, e.g., Arjay Assocs. v. Bush, 891 F.2d 894, 898 (Fed.Cir.1989) ("We hold that appellants lack standing because the injury they assert is to a nonexistent right...."); ACLU v. FCC, 523 F.2d 1344, 1348 (9th Cir.1975) ("If ACLU's claim is meritorious, standing exists; if not, standing not only fails but also ceases to be relevant."); United Jewish Org. of Williamsburgh v. Wilson, 510 F.2d 512, 521 (2d Cir.1975) ("Whether our decision on this point is cast on the merits or as a matter of standing is probably immaterial."), aff'd, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). This is such a case: whether Claybrook has standing depends principally on whether FACA imposes the legal duty she says it does.

Slater argues that Claybrook lacks standing because the legal duty she claims he violated does not exist. Under Slater's reasoning, the district court should have addressed the legal underpinning of Claybrook's claim. See, e.g., ACLU, 523 F.2d at 1348 (after concluding existence of standing depended on resolution of merits, court turned to merits). Instead, the court determined that Claybrook lacked standing on the ground that ATA and its advertising campaign were intervening factors between Slater's action (or, more accurately, inaction) and Claybrook's asserted harm. Claybrook v. Slater, No. CA 95-02240 at 4 (D.D.C. May 8, 1996), reprinted, at JA 152, 155 ("The major defect in plaintiff's allegation of injury is that it is based upon the independent actions of a third party...."). The court also observed that NMCAC's resolution did not constitute final agency action. Id. at 5, reprinted, at JA 156; see also Public Citizen v. United States Trade Rep., 5 F.3d 549, 551 (D.C.Cir.1993), cert. denied, 510 U.S. 1041, 114 S.Ct. 685, 126 L.Ed.2d 652 (1994). The district court, however, said nothing about whether FACA imposes the legal duty upon which Claybrook's asserted injury depends. Without finding that the resolution constituted final agency action, we affirm the district court on another jurisdictional ground. Cf. Allnet Communication Serv., Inc. v. National Exch. Carrier Ass'n, Inc., 965 F.2d 1118, 1120 (D.C.Cir.1992) (affirming district court's dismissal of suit on alternative ground).

As Slater points out, FHWA and Hochman complied with the express requirements of FACA and the duty upon which Claybrook's claims depend is not expressly provided for in FACA. Of significance in this case, FACA requires the sponsoring agency to file a charter specifying, inter alia, the scope of an advisory committee's mission, 5 U.S.C. App. § 9(c)(B), requires the committee's meetings in general to be open to the public, id. § 10(a)(1), requires "timely notice" of each meeting to be published in the Federal Register, id. § 10(a)(2), and requires an agency representative to attend each committee meeting and approve the agenda, id. § 10(e), (f). There is no suggestion that Slater, FHWA or Hochman violated any of these duties.

Instead, Claybrook contends that the requirement to approve the agenda as well as Congress's hortatory language in section 2(b)(6) that "all matters under [an advisory committee's] consideration should be determined in accordance with law, by the official, agency, or officer" forbid an advisory committee from taking any action not approved by the agency representative and included on the committee's agenda. Assuming arguendo she is correct, it means at most that the Committee should...