Nat. Anti-Hunger Coalition v. Executive Committee

• Decision Date: 24 February 1983
• Docket Number: Civ. A. No. 82-3592.
• Citation: 557 F. Supp. 524
• Parties: NATIONAL ANTI-HUNGER COALITION, et al., Plaintiffs, v. EXECUTIVE COMMITTEE OF the PRESIDENT'S PRIVATE SECTOR SURVEY ON COST CONTROL, et al., Defendants.
• Court: U.S. District Court — District of Columbia

557 F. Supp. 524

NATIONAL ANTI-HUNGER COALITION, et al., Plaintiffs, v. EXECUTIVE COMMITTEE OF the PRESIDENT'S PRIVATE SECTOR SURVEY ON COST CONTROL, et al., Defendants.

Civ. A. No. 82-3592.

United States District Court, District of Columbia.

February 24, 1983.

Eric R. Glitzenstein, Alan B. Morrison, David C. Vladeck, Jack Stolier, Cynthia G. Schneider, Washington, D.C., for plaintiffs.

Richard K. Willard, Barbara L. Gordon, Surell Brady, Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

GESELL, District Judge.

This case comes before the Court on cross-motions and requires the Court to interpret the application of the Federal Advisory Committee Act, 5 U.S.C.App. I, as it impinges on an advisory committee survey now being conducted for the President at his request.

On February 18, 1982, President Reagan announced his intention to establish a "Private Sector Survey on Cost Control in the Federal Government." Its purpose was to call on the expertise of "leaders from the business, labor, and academic communities" to obtain detailed management and cost control advice with a view towards reducing runaway costs in the federal sector.¹

By Executive Order No. 12369, 47 Fed. Reg. 28899 (June 30, 1982), the President established the Executive Committee of the Private Sector Survey. The Executive Committee was to be composed of no more than 150 citizens appointed by the President from the private sector.² It was to conduct in-depth reviews of Executive branch operations and to advise the President, the Secretary of Commerce and the heads of other federal agencies.

The Executive Order also provided that "the Committee is to be funded, staffed and equipped ... by the private sector without cost to the Federal Government." Id. To implement this objective, the Foundation for the President's Private Sector Survey on Cost Control was established. The Foundation, a non-profit corporation of the District of Columbia, made an agreement with the Secretary of Commerce on July 7, 1982, under which it was to provide assistance to the Committee including facilities and staff support. The Foundation's Management Office has organized thirty-six "task forces," each co-chaired by two or more members of the Committee, to do the "preliminary work of the survey, including fact-gathering, statistical evaluations, and the formulation of preliminary reports."³ Twenty-two of the task forces are assigned to study particular agencies, and the remaining fourteen are studying cross-agency functions. Apart from the chairmen, none of the task force members are members of the Committee, nor do the task forces have any authority to make recommendations to agencies or to the President.

Plaintiffs are individual recipients of federal food assistance benefits and the National Anti-Hunger Coalition, a group whose primary objective is "alleviation of hunger and malnutrition in this country through the participation of poor persons in policy decisions which affect their lives." Plaintiffs' memorandum filed December 22, 1982, at 6. Because of their concern that the Survey's submissions to the Committee may affect benefits available under federal food assistance programs, plaintiffs first sought access under the Federal Advisory Committee Act (FACA), 5 U.S.C.App. I, § 10, to all documents being generated by three task forces reviewing federal feeding programs. That access was denied and this suit followed.

Plaintiffs allege that the Survey is in violation of the FACA because the membership of the Executive Committee is not "balanced," as required by that Act, and because the task forces are "subcommittees" covered by the Act and consequently must give plaintiffs access to their documents and permit plaintiffs to participate in task force meetings and activities being conducted to develop initial proposals for the Survey. Plaintiffs seek a preliminary injunction granting full relief and defendants in turn have filed a motion to dismiss alleging that plaintiffs lack standing under the FACA and asserting that in any case neither the Executive Committee nor the task forces are operating in violation of that Act. Depositions have been taken and affidavits and documents filed. The parties have agreed the motions should be treated as cross-motions for summary judgment and after full argument and briefs the matter is ripe for determination.

I. The Federal Advisory Committee Act

The FACA defines an "advisory committee" as follows:

The term "advisory committee" means 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).

All advisory committees meeting this definition are subject to numerous requirements. Committee meetings must be open to the public, notice of meetings must be published in the Federal Register, and all records, reports, and other documents generated by the committee must be open to public inspection. 5 U.S.C.App. I, § 10. There is also a requirement that membership of the committee be "balanced in terms of the points of view represented." 5 U.S. C.App. I, § 5(b)(2).

II. Standing

Defendants at oral argument acknowledged that, under several recent cases in this Circuit, plaintiffs have standing to challenge violations of § 10 of the FACA, which outlines required advisory committee procedures such as open meetings, access to documents and records, and so forth. The requirement of "balanced" membership, however, occurs in § 5 of the Act. Because no court has actually granted standing under that section, defendants still argue that no judicial review is available as to that section. In Physician's Education Network, Inc. v. HEW, 653 F.2d 621, 622-23 (D.C.Cir. 1981), this Circuit dealt with a plaintiff alleging unbalanced membership under § 5 of the FACA. In dicta, the court noted that a plaintiff denied actual representation on an advisory committee would have standing under the FACA. The Court's discussion of standing made no distinction between requirements under § 5 and requirements under § 10 of the Act. Nor is any distinction readily apparent to this Court. Under the circumstances of this case plaintiffs will be granted standing to challenge committee membership as well as to question the committee's compliance with the procedural requirements of the Act.⁴

III. The Executive Committee

As defendants concede, the Executive Committee is subject to the Act's requirements. Defendants allege, and plaintiffs do not dispute, that the Executive Committee has complied and will comply with the procedural requirements found in § 10 of the Act. The Executive Committee has already held an open, public meeting on February 4, 1983, in full accordance with FACA requirements. A subcommittee consisting of 30 committee members, also subject to FACA requirements, was created at that meeting to conduct a series of further public meetings commencing in March of 1983 at which the subcommittee will consider findings and recommendations drafted by task forces and cleared through the Management Office of the Foundation. Those findings and recommendations will be available to the public for written comments at least two weeks before they are considered at a meeting of the subcommittee. After reviewing the task forces' material and the public comments thereon the subcommittee will formulate recommendations to be sent to the President. The full Executive Committee will be reconvened, again in accord with the FACA, to formulate a summary recommendation which will also be sent to the President. There is no dispute that plaintiffs will be able to participate in the Executive Committee's and subcommittee's formulation of recommendations.

In addition to these procedural requirements, however, § 5 of the FACA also requires that "the membership of the advisory committee ... be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee." 5 U.S.C.App. I, § 5(b)(2). Plaintiffs contend that the Executive Committee is not, in fact, "balanced." They note that virtually all of the Committee members are executives of major corporations; one is from the labor community, and two are academics. They urge a lack of balance because there are no public interest advocates and no beneficiaries of federal food assistance programs such as the individual plaintiffs among the Committee's membership.

Nowhere in the FACA is the meaning of the term "balanced" explained. Interpreted most broadly, it would take far more than a mere 150 individuals to ensure that every point of view concerned with the financial administration of federal programs be represented. Congress implicitly recognized the unworkability of such a requirement when it described "balanced" in terms of "the functions to be performed by the advisory committee."

In this case, the function to be performed by the Private Sector Survey is narrow and explicit. The President's express intent in establishing the survey was to apply to federal programs the expertise of leaders in the private sector with "special abilities to give detailed advice on cost-effective management of large organizations." White House Press Release, supra, at 1. In order to accomplish this objective, the President of necessity gathered the Committee members not from the public at large, but from the private sector. He selected those who have experience in the fiscal management of large private organizations. Surely Congress did not intend to prohibit the President from seeking specialized advice and while one...