Cummock, M. Victoria v. Gore, Albert

180 F.3d 282, 336 U.S. App. D.C. 347, 1999 U.S. App. LEXIS 13605, 1999 WL 397417
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 18, 1999
Docket98-5427
StatusPublished
Cited by43 cases

This text of 180 F.3d 282 (Cummock, M. Victoria v. Gore, Albert) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummock, M. Victoria v. Gore, Albert, 180 F.3d 282, 336 U.S. App. D.C. 347, 1999 U.S. App. LEXIS 13605, 1999 WL 397417 (D.C. Cir. 1999).

Opinions

Opinion for the Court filed by Chief Judge EDWARDS.

Concurring opinion filed by Circuit Judge ROGERS.

EDWARDS, Chief Judge:

On August 22, 1996, in the aftermath of the TWA Flight 800 air disaster, President Clinton established the White House Commission on Aviation Safety and Security (“Commission”). The Commission was chaired by Vice President Gore and included among its members appellant M. Victoria Cummock, who was widowed in the 1988 Pan Am Flight 103 crash and has been an active advocate for improved safety and security measures ever since. Cummock dissented from the Commission’s final report, which was delivered to the President on February 12, 1997. Subsequently, she filed this lawsuit, seeking declaratory and injunctive relief against the Government for a host of Federal Advisory Committee Act (“FACA”) and Administrative Procedure Act (“APA”) violations. Cummock alleged that, due to various procedural irregularities beginning before the Commission’s official inception and lasting through its disbandment six months later, she was excluded from meaningful participation in the Commission’s deliberations.

The District Court dismissed Cum-mock’s lawsuit in its entirety, finding that she lacked either an enforceable right or standing with respect to each of her claims. On appeal, we find that Cummock raises only one claim warranting our consideration: her allegation that the Commission violated FACA by denying her access to certain documents and information, and thereby compromised her ability to participate in Commission proceedings and prepare a fully informed dissent. We reject the Government’s contention that Cummock, as a committee member, possessed only those rights enjoyed under FACA by members of the general public. Like members of the public, Cummock has an enforceable right to obtain information pursuant' to § 10(b) of FACA. However, Cummock also has a right to fully participate in the deliberations of the Commission. To hold otherwise would completely undermine the stated purposes of FACA. On the record at hand, we find that Cummock was unlawfully denied the opportunity to review documents that were prepared for or relied upon by the Commission in formulating its recommendations, and to amend her dissent if necessary to reflect this information. Accordingly, we reverse the decision of the District Court and remand for further proceedings consistent with this opinion.

I. BacKground

A. Federal Advisory Committee Act

Congress passed FACA, 5 U.S.C. app. 2 §§ 1-16, in 1972 to address whether and to what extent committees, boards, and councils should be maintained to advise Executive Branch officers and agencies. See 5 U.S.C. app. 2 § 2(a); Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 445-46, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). “FACA was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals.... ” Id. at 453, 109 S.Ct. 2558; accord Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1026 (D.C.Cir.1998) (“NRDC”). Congress recognized that advisory committees “are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government.” 5 U.S.C. app. 2 § 2(a). However, Congress also feared the proliferation of costly committees, which were often dominated by representatives of industry and other special interests seeking to advance their own agendas. See H.R.Rep. No. 92-1017 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 3496 (“One of the great dangers in the unregulated use of advisory committees is that special interest [285]*285groups may use their membership on such bodies to promote their private concerns.”); see also Public Citizen, 491 U.S. at 453, 109 S.Ct. 2558; Food Chem. News v. Department of Health and Human Servs., 980 F.2d 1468, 1472 (D.C.Cir.1992); Richard O. Levine, Comment, The Federal Advisory Committee Act, 10 Harv. J. on Legis. 217, 219, 225 (1973).

In enacting FACA, Congress struck a balance between these concerns, by preserving the advisory committee mechanism for informing policy decisions, while ensuring

that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature.

Public Citizen, 491 U.S. at 446, 109 S.Ct. 2558 (citing 5 U.S.C. app. 2 § 2(b)). Congress aimed, in short, “ ‘to control the advisory committee process and to open to public scrutiny the manner in which government agencies obtain advice from private individuals.’ ” National Anti-Hunger Coalition v. Executive Comm. of the President’s Private Sector Survey on Cost Control, 711 F.2d 1071, 1072 (D.C.Cir.1983) (quoting Food Chem. News, Inc. v. Davis, 378 F.Supp. 1048, 1051 (D.D.C.1974)); accord Public Citizen, 491 U.S. at 459, 109 S.Ct. 2558; Animal Legal Defense Fund, Inc. v. Shalala, 104 F.3d 424, 426 (D.C.Cir.1997).

In order to achieve these objectives, Congress enacted in FACA a series of requirements governing the creation and operation of bodies falling within the Act’s definition of “advisory committee.” See 5 U.S.C. app. 2 § 3(2). For instance, FACA bars the initiation of new advisory committees absent express authorization by statute or the President, or a formal determination by an agency that such establishment wo.uld be in the public interest. See id. § 9(a). In addition, FACA mandates that advisory committee membership be “fairly balanced in terms of the points of view represented and the functions to be performed,” and that a committee’s advice reflect its “independent judgment” without improper influences from the appointing authority or special interests. Id. § 5(b)(2), (3). Moreover, FACA provides that, once established, an advisory committee must conform its operations to various procedural requirements by, inter alia, filing a charter before beginning its operations, see id. § 9(c), opening its meetings to the public, see id. § 10(a)(1), publishing advance notice of its meetings, see id. § 10(a)(2), keeping detailed minutes of its meetings, see id. § 10(c), and making available to the public records, drafts, studies, and other documents that were made available to or prepared by or for the committee, see id. § 10(b). The Act also charges the General Services Administration (“GSA”) with prescribing regulatory guidelines and management controls applicable to advisory committees, and providing such committees with advice and assistance to improve their performance. See id. § 7(c).

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180 F.3d 282, 336 U.S. App. D.C. 347, 1999 U.S. App. LEXIS 13605, 1999 WL 397417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummock-m-victoria-v-gore-albert-cadc-1999.