Energy Research Foundation v. Defense Nuclear Facilities Safety Bd., 90-5096

• Decision Date: 26 October 1990
• Docket Number: No. 90-5096,90-5096
• Citation: 917 F.2d 581
• Parties: , 18 Media L. Rep. 1294 ENERGY RESEARCH FOUNDATION, et al., Appellants, v. DEFENSE NUCLEAR FACILITIES SAFETY BOARD, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 581

917 F.2d 581

286 U.S.App.D.C. 359, 18 Media L. Rep. 1294

ENERGY RESEARCH FOUNDATION, et al., Appellants, v. DEFENSE NUCLEAR FACILITIES SAFETY BOARD, Appellee.

No. 90-5096.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 14, 1990.

Decided Oct. 26, 1990.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-0530).

Eric R. Glitzenstein, with whom Dean Tousley, Washington, D.C., and Robert Guild, Jacksonville, Fla., were on the brief, for appellants.

Margaret S. Hewing, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Douglas N. Letter, Atty., Dept. of Justice, and Richard Azzaro, Atty., Defense Nuclear Facilities Safety Board, Washington, D.C., were on the brief, for appellee.

Before BUCKLEY, D.H. GINSBURG, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The Defense Nuclear Facilities Safety Board does not consider itself an "agency" subject to the Freedom of Information Act, 5 U.S.C. Sec. 552 (FOIA), or the Government in the Sunshine Act, 5 U.S.C. Sec. 552b. The Board therefore does not make its records available to the public under FOIA and it does not open its meetings pursuant to the Sunshine Act. Appellants are two organizations and an individual who wish to attend the Board's meetings and review its records. They sued for a declaratory judgment and an injunction requiring the Board to comply with these statutes. The district court ruled on summary judgment that neither FOIA nor the Sunshine Act applied to the Board because it is not an "agency." We reverse.

The Department of Energy operates plants and other facilities that produce atomic weapons and conduct research and development in the military application of atomic energy. 42 U.S.C. Sec. 2121(a)(1), (2). The mission of the Defense Nuclear Facilities Safety Board is to monitor these facilities with an eye toward promoting the public health and safety.

Congress created the Board in 1988. The Board is independent of the Energy Department and is composed of five members with expertise in nuclear safety. 42 U.S.C. Sec. 2286(a), (b)(1). Each is appointed by the President, with the advice and consent of the Senate. 42 U.S.C. Sec. 2286(b)(1). The Board has three basic duties. It must review and evaluate "standards relating to the design, construction, operation, and decommissioning of defense nuclear facilities of the Department of Energy...." 42 U.S.C. Sec. 2286a(1); see also 42 U.S.C. Sec. 2286a(4). It must investigate practices or events at such facilities that may adversely affect public health and safety. 42 U.S.C. Sec. 2286a(2); see also 42 U.S.C. Sec. 2286a(3). Finally, it must recommend measures to the Secretary of Energy that are, in the Board's view, "necessary to ensure adequate protection of public health and safety." 42 U.S.C. Sec. 2286a(5).

The Board's recommendations are subject to an elaborate procedure. After receiving a Board recommendation, the Secretary must reply in writing. 42 U.S.C. Sec. 2286d(b)(1). If the Secretary accepts the Board's recommendation, he must prepare a plan to implement it; if he rejects it, the Board must reconsider its recommendation. 42 U.S.C. Sec. 2286d(d), (e). If the Board resubmits the same or a modified recommendation and the Secretary persists in rejecting it, he must explain why and transmit his explanation to the House and Senate. 42 U.S.C. Sec. 2286d(d). The Board has no authority to enforce its recommendations. With certain exceptions, the Board's recommendations, the Secretary's responses, and the Secretary's explanations must be published in the Federal Register. 42 U.S.C. Sec. 2286d(a), (b)(2), (d).

In performing its functions, the Board may conduct hearings, compel testimony, require the production of documents, hire staff and assign them to any Energy Department nuclear facility, and obtain assistance from the Nuclear Regulatory Commission. 42 U.S.C. Sec. 2286b(a), (f), (h). The Board is also empowered to promulgate its own regulations and to require the Secretary to report to it classified information and other information protected from disclosure. 42 U.S.C. Sec. 2286b(c), (d).

As this recital indicates, the Board deals with highly sensitive information concerning matters critical to the nation's defense and to public health and safety. For this reason, the Board believes that even if it were subject to FOIA and the Sunshine Act, exceptions to these statutes would enable it to close its meetings and withhold its records. We express no opinion on the subject. If the Board is an "agency" it is covered by these statutes. That depends, not on the exemptions in FOIA or the Sunshine Act, but on the statutory meaning of the term "agency."

FOIA's definition of "agency," which the Sunshine Act adopts with a modification not here pertinent, 5 U.S.C. Sec. 552b(a)(1), is as follows:

[T]he term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

5 U.S.C. Sec. 552(f). The reference to Sec. 551(1) is to the Administrative Procedure Act's definition of "agency"--namely, "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," except Congress, the judiciary and a few other select bodies. 5 U.S.C. Sec. 551(1).

In creating the Board, Congress used the same terms contained in Sec. 552(f)'s description of "agency." The Board's statute reads: "There is hereby established an independent establishment in the executive branch, to be known as the 'Defense Nuclear Facilities Safety Board'...." 42 U.S.C. Sec. 2286(a) (emphasis added). It would be a tall piece of statutory construction for a court to say that an "establishment in the executive branch" as used in Sec. 2286(a) is not an "establishment in the executive branch" within the meaning of Sec. 552(f). See Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 224 (1967) ("when Congress employs the same word, it normally means the same thing, when it employs different words, it usually means different things").

It is of course possible that identical phrases may carry different meanings in different statutes. "Oversight," for example, could mean watchful care or inadvertent error. Context can make the difference. But here Congress added the "establishment" language to Sec. 552(f) in 1974 for the purpose of expanding FOIA's coverage. H.R.CONF.REP.NO. 1380, 93d Cong., 2d Sess. 14 (1974); see H.R.REP. NO. 876, 93d Cong., 2d Sess. 8 (1974); S.Rep. No. 854, 93d Cong., 2d Sess. 33 (1974), 1974 U.S.Code Cong. & Admin.News 6267. Through these words, Congress sought to encompass entities that might have eluded the APA's definition in Sec. 551(1), which FOIA had incorporated by reference. At the time of the amendment, several federal entities had already come into existence through statutes proclaiming, as does the Board's, that there is hereby created "an establishment in the executive branch." See, e.g., 38 U.S.C. Sec. 201 (Veterans' Administration); 39 U.S.C. Sec. 201 (United States Postal Service); 39 U.S.C. Sec. 3601(a) (Postal Rate Commission). The House Report on the 1974 FOIA amendment specifically mentioned the Postal Service as an example of an "establishment in the executive branch" which would now be included in the amended definition of "agency." H.R.Rep. No. 876, supra, at 8. Furthermore, the "establishment" language was not innovative. Before 1974, Congress had been using "establishment in the executive branch" to describe what it meant by "agency." See, e.g., 22 U.S.C. Sec. 2552(b) (Arms Control and Disarmament Act); 40 U.S.C. Sec. 472(a) (Federal Property and Administrative Services Act of 1949); 40 U.S.C. Sec. 612(4) (Public Buildings Act); 42 U.S.C. Sec. 2014(l ) (Atomic Energy Act of 1954); 50 U.S.C. Sec. 403a (CIA Act of 1949); Federal Reports Act of 1942, Pub.L. No. 77-831, Sec. 7(a), 56 Stat. 1078, 1079-80 (current version at 44 U.S.C. Sec. 3502(1)). See also 5 U.S.C. Sec. 104, defining "independent establishment" as "an establishment in the executive branch ... which is not an Executive department" for purposes of Title 5.

With respect to the Board's statute, we find nothing to indicate that Congress intended to excuse the Board from complying with FOIA or the Sunshine Act. In fact the Board's statute indirectly refers to FOIA. See 42 U.S.C. Sec. 2286d(h)(2), citing to 42 U.S.C. Sec. 2168, which authorizes the Secretary to prohibit the unauthorized dissemination of certain unclassified information so long as he does so in accordance with the FOIA exemption set forth in "section 552(b)(3) of Title 5."

The Board argues, however, that Sec. 2286d(a) renders the Sunshine Act inapplicable to it. Section 2286d(a) requires the Board, "after receipt by the Secretary of Energy of any [Board] recommendations," "promptly" to make public its recommendations. The Board thinks this forbids it from revealing recommendations in public before the Secretary sees them. Thus, the Board believes it cannot hold open meetings to decide what to recommend.

Even if we were to accept the Board's reading of Sec. 2286d(a), the Board's status as an "agency" would not be affected. The Board meets to consider matters other than recommendations to the Secretary. Its statute contemplates as much. See, e.g., 42 U.S.C. Sec. 2286b(f), (g), (j). No provision comparable to Sec. 2286d(a) applies to the subjects of such meetings. Under the Board's logic, it therefore would be an "agency" for those meetings, but not an "agency" when it met to consider recommendations. There is nothing in the Sunshine Act, and certainly...