Common Cause v. Nuclear Regulatory Com'n
| Decision Date | 26 February 1982 |
| Docket Number | 81-2002 and 81-2147,Nos. 81-1975,s. 81-1975 |
| Citation | 674 F.2d 921 |
| Parties | , 8 Media L. Rep. 1190 COMMON CAUSE, et al. v. NUCLEAR REGULATORY COMMISSION, et al., Appellants. COMMON CAUSE and David Cohen v. NUCLEAR REGULATORY COMMISSION and John F. Ahearne, Chairman, Appellants. COMMON CAUSE, et al. v. NUCLEAR REGULATORY COMMISSION, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-02347).
Jason D. Kogan, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, Washington, D. C., Kenneth M. Raisler and Royce C. Lamberth, Asst. U. S. Attys., James Fitzgerald, Acting Sol., Nuclear Regulatory Commission, and Harvey Shulman and C. Sebastian Aloot, Attys., Nuclear Regulatory Commission, Washington, D. C., were on the brief, for appellants.
Donald J. Simon, with whom Ellen G. Block, Washington, D. C., was on the brief, for appellees.
Before WRIGHT, WILKEY and GINSBURG, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
The Government in the Sunshine Act, 5 U.S.C. § 552b (1976), requires that meetings of multi-member federal agencies shall be open to the public, with the exception of discussions in ten narrowly defined areas. 1 In these cases we must decide an important unresolved issue: whether any of the statutory exemptions from the Sunshine Act apply to agency budget deliberations. Interpreting the statutory language in light of the legislative history and underlying policies of the Act, we conclude that there is no blanket exemption for agency meetings at any stage of the budget preparation process. The availability of exemptions for specific portions of budgetary discussions must be determined upon the facts of each case.
In the proceedings before us the Nuclear Regulatory Commission (Commission) has failed to bear its burden of proving that its budget meetings of July 25, 1981 and October 15, 1981 were lawfully closed or that it may continue to withhold the transcripts of those meetings. We therefore order the Commission to release the transcripts to the public. We find, however, that the District Court's injunction of July 2, 1981, ordering the Commission to hold some of its future meetings in public, fails to satisfy the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure. We vacate the injunction, 522 F.Supp. 457, and the District Court's order, 522 F.Supp. 608, holding the Commission in contempt for violating the injunction.
Three interrelated cases have been consolidated in this appeal. Each case turns on the lawfulness of a decision by the Nuclear Regulatory Commission to close a meeting to discuss the agency's budget proposals. In each case the District Court ruled against the Commission. In No. 81-1975 the District Court held that the agency had acted unlawfully in closing a meeting on July 18, 1980, and ordered the Commission to refrain in the future from closing all meetings "similar in nature." Subsequently, in No. 81-2002, the court ruled that the Commission had violated the injunction by closing a meeting on July 25, 1981, and adjudged the Commission in civil contempt, which it could purge by releasing the transcript of the meeting. Finally, in No. 81-2147 the court held that the Commission had acted without statutory authorization when it closed a meeting on October 15, 1981, and ordered release of the transcript. The orders in Nos. 81-2002 and 81-2147 have been stayed pending the determination of this appeal.
In July 1980 the Commission scheduled a series of meetings to discuss preparation of the agency's annual budget request for fiscal year 1982, and announced that the sessions would be open to the public. 2 Before the first of the meetings on July 18, 1980, however, the three Commissioners who were present voted unanimously to close all of the budget meetings scheduled to be held within the next 30 days. Joint Appendix (JA) 19. The Commission relied solely on Exemption 9(B) of the Sunshine Act, which permits closing of meetings if premature disclosure of the discussion would be "likely to significantly frustrate implementation of a proposed agency action." 5 U.S.C. § 552b(c)(9) (B) (1976). A representative of appellee Common Cause, who wished to attend the July 18, 1980 meeting, was excluded. 3 At that meeting the Commissioners received a preliminary briefing from the staff concerning the Commission's budgetary needs and the relationship of each office's budget requests to agency and Office of Management and Budget (OMB) guidelines and previous appropriation levels. 4
Common Cause filed suit in the District Court on September 15, 1980, seeking a declaratory judgment that closure of the July 18, 1980 meeting had violated the Sunshine Act, an injunction ordering release of the transcript of that meeting, and an order to the Commission to permit Common Cause to attend future Commission meetings "that are similar in nature to the July 18, 1980 meeting (.)" JA 5-8. 5 The parties filed cross-motions for summary judgment. The Commission asserted that Exemption 9(B) permitted closing of the meeting and allowed the transcript to be withheld from the public until the President submitted his budget to Congress in early 1981. 6
In a memorandum opinion and order issued on July 2, 1981, JA 69-72, the District Court granted summary judgment for Common Cause. The court ruled that the Commission had unlawfully closed its July 18, 1980 meeting, which it described as a discussion of "the general proposed budget requests of the NRC and the general relationship between those requests and various budgetary documents." JA 70. On the basis of its inspection of the transcript the court decided that the Commission had "failed to establish a reasonable likelihood of any harm to future agency actions by opening budget discussion meetings." JA 71. It therefore found that Exemption 9(B) was inapplicable, and it enjoined the Commission permanently "from closing future meetings of a similar nature." JA 72. It did not specify the characteristics of the July 18, 1980 meeting which it considered material, nor did it describe with any particularity the future meetings which it ordered to be held in public. 7
In July 1981 the Commission scheduled a series of meetings to discuss its budget request for fiscal year 1983. On the advice of its General Counsel it divided these meetings into two categories: preliminary staff briefings, designed to provide Commission members with background information and staff advice; and meetings in which the Commissioners would decide on specific funding levels for the agency's budget proposals to OMB (markup), and would also consider intra-agency appeals from initial markup decisions (reclama). It voted to hold the preliminary staff briefings, which it believed to be "similar in nature" to the July 18, 1980 meeting, in public. 8 However, it decided to close the markup/reclama meeting, originally scheduled for July 23, which eventually took place on July 27. It relied on Exemptions 2 and 6 as well as Exemption 9(B). Common Cause was notified of this decision on July 17, 1981. JA 81-82.
On July 21, 1981 Common Cause sought an order from the District Court enforcing the July 2, 1981 injunction by requiring the scheduled markup/reclama meeting to be held in open session. JA 73-80. 9 The court did not act immediately on the Common Cause motion. On July 27, 1981 the Commission held its markup/reclama meeting in closed session. The meeting discussed the Commission's final budget figures for submission to OMB, evaluated a number of regulatory programs, determined budgetary priorities, and selected strategies to maximize the budgetary resources that OMB might approve.
After reviewing the transcript of the closed meeting in camera, the District Court, at a hearing on August 25, 1981, ordered the Commission to release the transcript to the public. On September 9, 1981 the court issued a written order holding the Commission in contempt of court for closing the July 27, 1981 meeting. The memorandum accompanying the order gave a broad construction to the court's earlier injunction of July 2, 1981. The court explained that its order had been "made in a wider context than just resolving the legality of closing the prior year's July 18, 1980, budget discussion meeting." In their motions for summary judgment in that proceeding, the court wrote, both parties had argued the application of the Sunshine Act to "the entire budget development process." JA 259. Without referring specifically to any of the claimed Sunshine Act exemptions, the court found that the July 27 meeting was "similar in nature" to the July 18, 1980 meeting illegally closed by the Commission, JA 260, and that the Commission was guilty of civil contempt. The order allowed the Commission to purge its contempt by releasing the transcript within ten days; if it failed to do so its members were required to appear before the court for sentencing on September 28, 1981. JA 262.
On an emergency motion for stay pending appeal this court granted a stay of the September 9 contempt order of the District Court. It also advised the Commission to seek the approval of the District Court if, during the pendency of the appeal, it wished to close any meeting concerning the budget or similar matters. JA 265-266.
The Commission submitted its budget request to OMB in September 1981. OMB proposed substantial reductions in the Commission's budget, but gave the agency an opportunity to appeal (reclama) the cutbacks on or before October 19, 1981. The...
To continue reading
Request your trial
-
Cobell v. Norton
...(D.C.Cir.1981). At the same time, however, because "[t]he judicial contempt power is a potent weapon," see Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921, 927 (D.C.Cir.1982), courts should be prudent in exercising that power. Joshi v. Professional Health Services, Inc., 817 F.2d 87......
-
Keyes v. School Dist. No. 1, Denver, Colo.
...difficult subject matter. Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir.1987); Common Cause v. NRC, 674 F.2d 921, 927 (D.C.Cir.1982). Should contempt proceedings ever be necessary, of course, any ambiguity in the injunction will inhere to the district's ......
-
U.S. v. Philip Morris Usa Inc.
...similar" conduct without further specification in a case that provided no examples of what is "similar"); Common Cause v. NRC, 674 F.2d 921, 926-27 (D.C.Cir.1982) (order enjoined conduct "similar in nature" without further specification in a case that provided no examples of what is "simila......
-
Tivo Inc. v. Echostar Corp..
...inadequate to meet the mandate of Rule 65, similar to the one in International Longshoremen. See, e.g., Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921, 926–27 (D.C.Cir.1982); H.K. Porter Co., Inc. v. Nat'l Friction Prods. Corp., 568 F.2d 24, 27 (7th Cir.1977). Moreover, most of the......
-
Federal Transparency Laws Beyond FOIA
...persons by mail. 24 On the other hand, some agencies do the 19. Id . §552b(c)(1)-(7). 20. Common Cause v. Nuclear Regulatory Comm’n, 674 F.2d 921, 929 (D.C. Cir. 1981). 21. We the People Inc. of the U.S. v. Nuclear Regulatory Comm’n, 746 F. Supp. 213, 217 (D.D.C. 1990). 22. 5 U.S.C. §552b(e......
-
Disclosure's Effects: WikiLeaks and Transparency
...that engage in unethical acts, and thereby help establish “good government and a 1. See, e.g. , Common Cause v. Nuclear Regulatory Comm’n, 674 F.2d 921, 928 (D.C. Cir. 1982) (explaining that Congress’s intent in enacting the Government in the Sunshine Act, 5 U.S.C. § 552b (2006), requiring ......
-
Disclosure's Effects: WikiLeaks and Transparency
...that engage in unethical acts, and thereby help establish “good government and a 1. See, e.g. , Common Cause v. Nuclear Regulatory Comm’n, 674 F.2d 921, 928 (D.C. Cir. 1982) (explaining that Congress’s intent in enacting the Government in the Sunshine Act, 5 U.S.C. § 552b (2006), requiring ......