National Anti-Hunger Coalition v. Executive Committee of President's Private Sector Survey on Cost Control

• Decision Date: 14 June 1983
• Docket Number: No. 83-1248,ANTI-HUNGER,83-1248
• Parties: NATIONALCOALITION, et al., Appellants, v. EXECUTIVE COMMITTEE OF the PRESIDENT'S PRIVATE SECTOR SURVEY ON COST CONTROL, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1071

711 F.2d 1071

229 U.S.App.D.C. 143

NATIONAL ANTI-HUNGER COALITION, et al., Appellants, v. EXECUTIVE COMMITTEE OF the PRESIDENT'S PRIVATE SECTOR SURVEY

ON COST CONTROL, et al.

No. 83-1248.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 5, 1983.

Decided June 14, 1983.

Eric R. Glitzenstein, Washington, D.C., with whom Alan B. Morrison, David C. Vladeck and Jack Stolier, Washington, D.C., were on the brief, for appellants.

Richard K. Willard, Deputy Asst. Atty. Gen., Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., and John F. Cordes, Atty Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before WILKEY and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This is an appeal from the dismissal of a complaint, grounded in the Federal Advisory Committee Act ("FACA" or "Act"), 5 U.S.C. app. I §§ 1-15 (1976 & Supp. V 1981), challenging the composition and procedures of the Executive Committee of the President's Private Sector Survey on Cost Control ("Survey") and three task forces established to assist the Survey in the study of domestic feeding programs for low-income persons. The appellants, the National Anti-Hunger Coalition and two low-income individuals ("Coalition"), argue that the Survey violates several requirements of the FACA. They claim, first, that the composition of the Executive Committee, consisting almost exclusively of executives of large corporations and containing no representatives of the feeding programs under consideration, cannot be squared with the "balanced membership" requirement of the Act. And they contend, second, that the Survey's task forces are themselves advisory committees whose structure and procedures contravene various provisions of the Act.

We approve the reasoning under which the District Court rejected the appellants' contentions, and we affirm its decision on the basis of the record on appeal. We note, however, that certain fundamental assumptions underlying the trial court's decision allegedly have been called into question by new evidence concerning the scope of the Survey's inquiry and the manner in which its recommendations are formulated. We therefore emphasize that nothing in this decision is intended to foreclose the possibility of further judicial consideration in light of facts not presently before the court on this record.

I

The facts underlying the District Court's decision are adequately recounted in its opinion, National Anti-Hunger Coalition v. Executive Committee of the President's Private Sector Survey on Cost Control, 557 F.Supp. 524 (D.D.C.1983), and need only be summarized briefly here. The government-wide Survey challenged in this appeal is designed to proceed in four stages. The bulk of the Survey's work to date has fallen to the thirty-six task forces organized by the nonprofit Foundation for the President's Private Sector Survey on Cost Control ("Foundation") and chaired by members of the Executive Committee. These task forces gather information, perform studies, and draft reports and recommendations. Their recommendations and reports are transmitted to the Foundation's Management Office, which reviews them, orders revisions, and submits them to the Executive Committee of the Survey, a body that was organized pursuant to the FACA. When these documents reach the Executive Committee, they are first reviewed by a thirty-member subcommittee that also is subject to the requirements of the FACA. This subcommittee is responsible for reviewing the task force reports and making detailed recommendations to the President and the affected federal agencies. Eventually, the entire Executive Committee will be convened to formulate a summary report for the President.

The final two stages of the Survey's inquiry, the Government concedes, are subject to the requirements of the FACA, but the applicability of the Act to the earlier stages is hotly disputed. Congress enacted the FACA in 1972 "to control the advisory committee process and to open to public scrutiny the manner in which government agencies obtain advice from private individuals." Food Chemical News, Inc. v. Davis, 378 F.Supp. 1048, 1051 (D.D.C.1974). By its terms, the Act applies--with several exceptions not relevant here--to "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" that is "established by statute or reorganization plan, or ... established or utilized by the President, or ... established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies...." 5 U.S.C. app. I § 3(2) (1976). All advisory committees meeting this definition are subject to open meeting requirements, and most records, reports, and other documents generated by the committees must be open to public inspection. Id. § 10. Each advisory committee's membership, moreover, must be "fairly balanced in terms of the points of view represented and the functions to be performed." Id. § 5(b)(2). Although this latter requirement is set forth in a subsection explicitly governing only those advisory committees established by statute, the Act makes it plain that, "[t]o the extent they are applicable, the guidelines set out in subsection (b) of this section shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee." Id. § 5(c). ¹

II

The District Court began its analysis of the Survey's consistency with the governing principles established by the FACA with the threshold question of standing. Relying heavily on dicta in our recent decision in Physicians' Education Network, Inc. v. HEW, 653 F.2d 621 (D.C.Cir.1981) (per curiam), the court held that the Coalition had "standing to challenge committee membership as well as to question the committee's compliance with the procedural requirements of the Act." 557 F.Supp. at 527 (footnote omitted). The standing question is a close one that we need not resolve to decide this appeal, but we are inclined to agree with the District Court's conclusion. ²

The District Court then turned to the merits of the Coalition's "balance" claim. Although it recognized that virtually every member of the Executive Committee was an executive of a major corporation and that no public interest representatives or beneficiaries of federal feeding programs had been appointed, the court rejected the challenge to the Committee's composition because "the function to be performed by the Private Sector Survey is narrow and explicit." 557 F.Supp. at 528. Since the Survey was designed to apply private sector expertise to attain cost-effective management in the federal government, the District Court held, the President legitimately could "select[] those who have experience in the fiscal management of large private organizations." Id. As a result, the court concluded, the alleged imbalances in membership are "simply irrelevant to the ability of the Executive Committee to perform its limited function fairly and impartially." Id.

On the basis of the record before it, the District Court's conclusion that the Executive Committee's members represent a fair balance of viewpoints given the functions to be performed is unimpeachable. Although the Coalition argued that the Committee had broadly interpreted its mandate and was considering substantive changes in federal policies and programs, it failed adequately to document this assertion. 557 F.Supp. at 528 n. 5. If it had, the Government conceded in the oral argument before this court, the approach to the "balance" issue adopted by the District Court may well have dictated a different result.

Since the time when the District Court rendered its decision, a considerable amount of new evidence, allegedly bearing on the scope of the Survey's inquiry, has become available. According to the appellants, this evidence, which consists primarily of the reports of several task forces, conclusively demonstrates that the advisory bodies are studying and recommending major programmatic cutbacks in federal feeding programs. As a result, the appellants claim, the District Court's reasoning now supports their contention that the Executive Committee's membership is unbalanced. The Government argues, on the other hand, that, while the line between "policy" and "management" is not always a bright one the task forces' recommendations are oriented more to management than to policy. We recognize that the task force reports, whether characterized as "newly discovered evidence" or "changed circumstances," may bear heavily on the fundamental premise underlying the District Court's decision, but we cannot conclude that they warrant reversing or vacating its judgment.

As we have previously recognized, "[a]ppellate review is ordinarily unaffected by matters not contained in the record." Goland v. CIA, 607 F.2d 339, 367, 370 (D.C.Cir.1979) (per curiam on motion to vacate and petition for rehearing) (footnote omitted), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). While altered circumstances or new evidence are sometimes "properly noticed on appeal," id. at 371, an appellate court ordinarily

has no factfinding function. It cannot receive new evidence from the parties, determine where the truth actually lies, and base its decision on that determination. Factfinding and the creation of a record are the functions of the district court; therefore, the consideration of newly-discovered evidence is a matter for the district court. The proper procedure for dealing with newly discovered evidence is for the party to move for relief from the judgment in the district court under rule 60(b) of the Federal Rules of Civil Procedure.

Id.; see Weisberg v. U.S. Department of...