Rushforth v. Council of Economic Advisors

• Citation: 762 F.2d 1038
• Decision Date: 24 May 1985
• Docket Number: No. 84-5428,84-5428
• Parties: , 53 USLW 2603, 11 Media L. Rep. 2075 Brent N. RUSHFORTH, Appellant, v. COUNCIL OF ECONOMIC ADVISERS, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1038

762 F.2d 1038

246 U.S.App.D.C. 59, 53 USLW 2603, 11

Media L. Rep. 2075

Brent N. RUSHFORTH, Appellant, v. COUNCIL OF ECONOMIC ADVISERS, et al.

No. 84-5428.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 7, 1985.

Decided May 24, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-02632).

Nicholas C. Yost, Washington, D.C., for appellant.

Andrea Newmark, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees.

Before WRIGHT, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge.

This action was brought under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982), and the Government in the Sunshine Act, 5 U.S.C. Sec. 552b (1982), seeking relief from the failure of the Council of Economic Advisers ("CEA" or "Council") to comply with those two statutes. The District Court dismissed the Freedom of Information Act ("FOIA") claim, but also opined that summary judgment for CEA would be warranted in any event. In addition, the trial court granted summary judgment in favor of the CEA on the Government in the Sunshine Act ("Sunshine Act") claim. We affirm.

I

Brent Rushforth, a Washington, D.C. attorney, submitted an FOIA request to CEA for copies of the Council's regulations implementing both FOIA and the Sunshine Act. In its response to Mr. Rushforth's inquiry, the CEA advanced the position that the Council is not an "agency" for purposes of FOIA and is thus not required to comply with the Act. Appellant thereupon brought suit in the United States District Court for the District of Columbia, seeking "declaratory, mandatory, and injunctive relief from CEA's total failure to comply with either the Government in the Sunshine Act ... or with [FOIA]." Complaint at 1, reprinted in Joint Appendix at 6, 6. Specifically, appellant asked the District Court to declare CEA in violation of both statutes, to require CEA to adopt regulations implementing both Acts, to enjoin future violations of either Act, and to "issue such other and further relief as may be appropriate." Complaint at 7-8, Joint Appendix at 12-13. Appellant moved for summary judgment; CEA moved for dismissal or, alternatively, for summary judgment.

After the cross-motions for summary judgment were filed, Mr. Rushforth submitted to CEA a second FOIA request. He requested all documents falling into any of eight categories. When no response was received within ten working days, ¹ appellant filed a "Supplemental Complaint" in the already pending litigation. In that pleading, appellant averred that he had requested information with respect to studies, reports, and other documents from CEA and had received no response from the Council within ten working days. He also attached a copy of the FOIA request. When CEA eventually did respond through administrative channels, the Council again maintained that its records were not agency records subject to FOIA; while turning over voluntarily certain materials to appellant, ² the CEA withheld some of the requested documents.

Defendants moved to dismiss the supplemental complaint or, alternatively, for summary judgment. The District Court in due course entered an order and memorandum opinion dismissing appellant's FOIA claim and granting summary judgment in favor of CEA on the Government in the Sunshine Act claim. With regard to the FOIA claim, the court held, first, that plaintiff lacked standing. In the court's view, Mr. Rushforth had not in the first instance requested a disclosure of existing documents, and the court lacked authority under FOIA to order the CEA to adopt and then release implementing regulations. The court went on to hold, moreover, that even if plaintiff had standing in light of his second FOIA request, CEA would be entitled to summary judgment inasmuch as the Council is not an "agency" within the meaning of FOIA. As to the Sunshine Act claim, the court held that the Act did not apply to CEA inasmuch as the Council is not a collegial body. ³ This appeal followed.

II

The first issue before us is whether the CEA is an "agency" within the meaning of FOIA. The operative statutory provision sets forth the following definition of that term: "For purposes of this section, the term agency ... 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(e). Plaintiff's argument is simple and straightforward: since the CEA is an establishment in the Executive Office of the President, it is subject to FOIA. But the issue is not so easily resolved. As the Supreme Court has made clear, " 'Executive Office' does not include the Office of the President ... [, and] 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President' are not included within the term 'agency' under the FOIA." Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Rep. No. 1380, 93d Cong., 2d Sess. 8 (1974)).

While not all units within the Executive Office of the President are subject to FOIA, appellant seeks to buttress his position by repairing to the legislative history, specifically the House Report on the 1974 amendments to FOIA. That Report states that the definition of "agency" was being expanded from that which previously obtained. ⁴ The Report further states that "[t]he term 'establishment in the Executive Office of the President,' as used in this amendment, means such functional entities as ... the Council of Economic Advisers...." H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6267, 6274. It is thus clear, as appellant argues, that the House version of the 1974 amendments contemplated that the CEA would be subject to FOIA.

But the House report does not stand alone. The subsequent Conference Report directly undercuts the House Report's otherwise clear expression; while observing that "[t]he conference substitute follows the House bill," the Report goes on to say: "[W]ith respect to the meaning of the term 'Executive Office of the President' the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 (C.A.D.C.1971). The term is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." H.R.Rep. No. 1380, 93d Cong., 2d Sess. 14-15 (1974); see also S.Rep. No. 1200, 93d Cong., 2d Sess. 15 (1974) (identical language), U.S.Code Cong. & Admin.News 1974, 6293. Thus, the Conference Report speaks to the precise issue of the meaning of the phrase "Executive Office of the President" and specifically states an intent to follow the result in Soucie, namely determining whether the sole function of the entity within the Executive Office is to advise and assist the President. Where, as here, the specific mention of the CEA in the House Report was dropped and a specific, judicially formulated test was adopted by the Conference Committee for determining the FOIA status of such entities, the House Report is entitled to little weight in this respect. Manifestly, the Conference elected to embrace a test to be substituted for a listing of the entities to be included; the outcome of the case before us should, accordingly turn on an examination of Soucie and the sole-function test enunciated in that case.

In Soucie, the issue was whether the Office of Science and Technology ("OST"), an entity in the Executive Office of the President, was an agency within the meaning of FOIA. Concluding that OST was indeed a FOIA-covered agency, the Soucie court began by observing OST's genesis as the creature of an Executive Branch reorganization plan. That plan transferred the functions of the National Science Foundation ("NSF" or "the Foundation") to the OST, an "administrative unit outside the White House, but in the Executive Office of the President on roughly the same basis as ... the Council of Economic Advisers...." Soucie, supra, 448 F.2d at 1074. However, while this reorganization resulted in an administrative unit located, hierarchically, in the same position as CEA, there is no indication that the functional roles of CEA and OST were the same; and, critically, it was the functional role of the agency on which Soucie turned.

In Soucie, the court concluded that "[b]y virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act." Id. at 1075. The court reached this conclusion only after expressly taking into account the fact that OST had assumed the functions of the National Science Foundation; moreover, the court observed that OST was specifically authorized to evaluate the scientific research programs of federal agencies. The court stated: "If the OST's sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency." It was, rather, the existence of the NSF functions, now vested in OST pursuant to the reorganization, that turned the tide. Those functions included the initiation and support of research, awarding scholarships, fostering the interchange of information and evaluating the status of the sciences in correlating the research and education programs undertaken by the Foundation. See 42 U.S.C. Sec. 1482 (1982). Those functions clearly go beyond advice and assistance. In a word, OST could take direct action...