United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 1999 Decided June 18, 1999
No. 98-5427
M. Victoria Cummock,
Appellant
v.
Albert Gore, Jr., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00981)
Herbert L. Fenster argued the cause for appellant. With
him on the briefs were Michael J. Haungs and Todd A. Suko.
Michael S. Raab, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
David W. Ogden, Acting Assistant Attorney General, Wilma
A. Lewis, U.S. Attorney, Mark B. Stern, Attorney, U.S.
Department of Justice, Nancy E. McFadden, General Coun-
sel, U.S. Department of Transportation, Paul M. Geier, As-
sistant General Counsel, and Peter J. Plocki, Senior Trial
Attorney.
Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.
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 after-
math 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 re-
port, which was delivered to the President on February 12,
1997. Subsequently, she filed this lawsuit, seeking declarato-
ry and injunctive relief against the Government for a host of
Federal Advisory Committee Act ("FACA") and Administra-
tive 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 mean-
ingful participation in the Commission's deliberations.
The District Court dismissed Cummock'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 partici-
pate in Commission proceedings and prepare a fully informed
dissent. We reject the Government's contention that Cum-
mock, 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 s 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 recom-
mendations, 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 ss 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 s 2(a); Public
Citizen v. United States Dep't of Justice, 491 U.S. 440, 445-46
(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; 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 s 2(a). How-
ever, Congress also feared the proliferation of costly commit-
tees, which were often dominated by representatives of indus-
try 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 inter-
est groups may use their membership on such bodies to
promote their private concerns."); see also Public Citizen,
491 U.S. at 453; Food Chem. News v. Department of Health
and Human Servs., 980 F.2d 1468, 1472 (D.C. Cir. 1993);
Richard O. Levine, Comment, The Federal Advisory Commit-
tee 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 mecha-
nism 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 (citing 5 U.S.C. app. 2 s 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; 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 "advi-
sory committee." See 5 U.S.C. app. 2 s 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 would be
in the public interest. See id. s 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 influ-
ences from the appointing authority or special interests. Id.
s 5(b)(2), (3). Moreover, FACA provides that, once estab-
lished, an advisory committee must conform its operations to
various procedural requirements by, inter alia, filing a char-
ter before beginning its operations, see id. s 9(c), opening its
meetings to the public, see id. s 10(a)(1), publishing advance
notice of its meetings, see id. s 10(a)(2), keeping detailed
minutes of its meetings, see id. s 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. s 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. s 7(c).
Finally, FACA imposes various oversight and reporting re-
quirements on congressional committees, GSA, and the Presi-
dent, in order to monitor advisory committees and ensure
their ongoing usefulness and productivity. See id. ss 5(a),
6(c), 7(b).
Sometimes dubbed the "fifth branch" of Government, see,
e.g., Mary Kathryn Palladino, Survey, Ensuring Coverage,
Balance, Openness and Ethical Conduct for Advisory Com-
mittee Members under the Federal Advisory Committee Act,
5 Admin. L.J. 231, 231 (1991), advisory committees today
remain a fixture in the Nation's Capital. In fiscal year 1997,
a total of 36,586 individuals served on 963 committees, see
U.S. General Accounting Office, Federal Advisory Commit-
tee Act: Advisory Committee Process Appears to Be Working,
but Some Concerns Exist, GAO/T-GGD-98-163, at 3 (July 14,
1998) (Statement of L. Nye Stevens), available at , addressing almost all imaginable topics,
from national policy matters to technical or scientific issues.
See generally U.S. General Services Administration, Federal
Advisory Committee Act (FACA) Database, available at
(listing advisory commit-
tees by relevant agency). In other words, to this date, the
Government continues to draw heavily upon the advisory
committee process as a part of its political machinery.
B. White House Commission on Aviation Safety and Secu-
rity
On July 25, 1996, in the wake of the TWA Flight 800
disaster, President Clinton announced his intention to form a
committee to study aviation safety and security issues. The
White House Commission on Aviation Safety and Security
filed a charter on August 21, 1996, and was officially estab-
lished by Executive Order dated August 22, 1996. See Exec.
Order No. 13,015, 61 Fed. Reg. 43,937 (1996). This order
charged the Commission with recommending a strategy to
improve aviation safety and security, both domestically and
internationally. See id. It provided that the Commission
would be chaired by Vice President Gore and supported by
the Department of Transportation. See id. It further pro-
vided that the Commission would consist of no more than
twenty-five members to be appointed by the President from
the public and private sectors. See id. Finally, it provided
that the Commission would terminate after six months unless
extended by the President. See id.
On August 14, 1996, President Clinton invited Cummock,
the widow of a Pan Am Flight 103 victim and an advocate for
disaster victims and improved airline safety measures, to join
the Commission. Additional members included the Vice
President, as noted, as well as former Central Intelligence
Agency Director John M. Deutch, then Department of Trans-
portation Secretary Federico F. PeNa, retired Air Force
General John Michael Loh, and other individuals with experi-
ence or expertise in aviation safety and security matters.
Once the Commission was established, it immediately be-
gan its work, which progressed quickly. On August 22, 1996,
the day after the Commission filed its charter, five Commis-
sion members held a meeting at which Commissioner Loh
presented a document containing draft recommendations.
The full Commission then held its first executive session on
September 5, 1996, and on September 9, the Commission
submitted its initial report to the President, advancing twenty
recommendations to enhance aviation security. The Commis-
sion continued to meet for several months thereafter, and its
final report, containing over fifty recommendations, was deliv-
ered to the President on February 12, 1997. The presenta-
tion of this report garnered extensive media attention. See,
e.g., Matthew L. Wald, Panel to Recommend Steps for Cut-
ting Air Crash Rate, N.Y. Times, Feb. 12, 1997, at A1;
Robert Davis, 53 Air-Safety Proposals Come Out Today,
USA Today, Feb. 12, 1997, at 3A; Ralph Vartabedian &
Elizabeth Shogren, Tougher Security, Safety Rules for Air-
lines Proposed, L.A. Times, Feb. 13, 1997, at A1; J. Lynn
Lunsford, Panel Urges Changes to Improve Air Safety, Dal-
las Morning News, Feb. 13, 1997, at 6A. Neither the report
nor the accompanying transmittal letter indicated the exis-
tence of any dissenting views.
Cummock, alone, dissented from the final report. Her
letter of dissent, dated February 19, 1997, was published with
the printed version of the final report, which also included an
editor's note stating as follows:
This edition contains as Appendix I a dissent by Commis-
sioner Cummock which was transmitted to the Commis-
sion one week after the report was voted on in public
session and presented to President Clinton.
During the public session, Commissioner Cummock dis-
sented from three recommendations. The dissent pub-
lished in this document goes far beyond those registered
in public. It presents for the first time material and
arguments the other Commissioners did not have an
opportunity to consider. However, many of the argu-
ments made in the dissent were considered and rejected
by the other members of the Commission.
White House Commission on Aviation Safety and Security,
Final Report to President Clinton (Feb. 12, 1997), reprinted
in Appendix ("App.") 38. The final report included only the
narrative portion of Cummock's dissent and excluded the
supporting materials that accompanied the dissent. The edi-
tor's note to the final report indicated that interested persons
could obtain the supporting materials by writing to a specified
address. See id.
C. Cummock's Lawsuit
Several months after the Commission was disbanded, Cum-
mock filed suit in District Court, naming Vice President Gore,
the Secretary of Transportation, and the Commission as
defendants. Cummock alleged, inter alia, that the Commis-
sion failed to operate in accordance with FACA and the APA,
thereby violating her right as a member to participate in the
Commission's work. She claimed that, by a series of "proce-
dural irregularities," she was effectively excluded from Com-
mission proceedings. In her view, the Clinton Administration
had formed the Commission simply to obtain rubber-stamp
endorsement of a predetermined policy agenda, rather than
to facilitate genuine deliberations. See Brief of Appellant at
14-15. Cummock's allegations fall into four categories, which
we summarize briefly as follows.
First, Cummock argues that the Commission violated
FACA's charter provision, 5 U.S.C. app. 2 s 9(c), by "tak[ing]
... action" prior to the filing of its charter on August 21,
1996. The Commission's alleged "action" consisted of a trip
led by Vice President Gore to observe aviation operations at
Dulles Airport, a presentation regarding Commission activi-
ties made by Commissioner Loh at a meeting of the Federal
Aviation Administration Security Baseline Work Group, the
preparation of draft recommendations, and various other
"informational briefings, site visits, and studies" engaged in
by Commission members before the Commission's official
inception. Brief of Appellant at 5-6.
Second, Cummock claims that the Commission violated
FACA's notice provision, 5 U.S.C. app. 2 s 10(a)(2), by failing
to publish timely notice of its meetings in the Federal Regis-
ter. According to Cummock, notice was never provided fif-
teen days in advance of meetings, as required by 41 C.F.R.
s 101-6.1015(b)(1), and on one occasion, notice did not appear
until after the meeting had occurred.
Third, Cummock contends that the Commission violated
the provision of FACA requiring the Commission to make
available the records, reports, and other documents made
available to it in the course of its deliberations, 5 U.S.C. app.
2 s 10(b). Cummock points to several instances in which she
allegedly requested particular information to no avail. For
instance, she asked for a copy of an inch-thick briefing paper
that she saw Commissioners Gore and Deutch reviewing, but
subsequently received only four pages of that document from
the Commission's Staff Director. She also requested that she
be provided with documents submitted to or received from
the Air Transport Association ("ATA"), but allegedly did not
receive all such documents. In addition, when she heard
mention of a "classified annex," she sought access to those
materials, but never received them, despite her security
clearance. Lastly, she requested information on the availabil-
ity of protective breathing equipment for passengers, but
received no documents and was assured by Commission staff
that no such information was available, only later to learn
that at least one company had submitted a letter concerning
its equipment two weeks prior to her request.
Finally, Cummock alleges that the Commission violated the
APA, by failing to publish her complete dissent and including
a misleading editor's note with the final report. According to
Cummock, the Commission did not take up her concerns until
immediately before the final report was scheduled to be
delivered to the President, thereby delaying her preparation
of a dissent. Thus, although Vice President Gore allegedly
told her at a public meeting on the morning of February 12,
1997 that the Commission would "make available a place in
the report for the full expression of any dissenting views that
[she] would like to contribute," Complaint p 40, reprinted in
App. 21, the report was delivered to the President later that
same day without Cummock's dissent. Subsequently, the
Commission published only the narrative portion of her dis-
sent, without the supporting materials that she had attached
thereto. In addition, the Commission included a misleading
editor's note, which inaccurately suggested that Cummock's
dissent had presented issues that the full Commission did not
have an opportunity to consider, and had been submitted late.
Following the Commission's official termination, Cum-
mock's attorney wrote to the Vice President and the Commis-
sion's Staff Director, requesting information relating to the
publication of the final report, the basis for the editor's note,
and various aspects of Commission operations. Upon receiv-
ing no response, counsel reiterated this request in another
letter. Although receipt of these letters was acknowledged
by the Department of Transportation's Office of General
Counsel, no response was ever received.
Subsequently, on May 8, 1997, Cummock filed this lawsuit,
alleging multiple violations of FACA and the APA. As relief,
Cummock sought an injunction prohibiting the final report
from being published, distributed, or used without her "com-
plete dissent," requiring the final report to be amended to
correct misstatements in the editor's note, requiring all Com-
mission documents and records to be made available to
Cummock, requiring that Cummock be given an opportunity
to amend her dissent, and prohibiting distribution of the final
report as a FACA advisory committee report. See Complaint
at 27, reprinted in App. 32. Cummock also sought a declara-
tion that "the Commission has operated in violation of FACA
and GSA implementing regulations and that the actions taken
by the Commission to date are ultra vires." Id. at 28,
reprinted in App. 33.
In July 1997, the Government filed a motion to dismiss
Cummock's complaint for lack of standing or failure to state a
claim upon which relief can be granted. According to the
Government, Cummock was subsequently permitted to review
at least some non-classified Commission documents, and was
given copies of most of the documents she requested. "Those
documents not produced were determined, upon initial re-
view, to include information that might be exempt from
disclosure under the Freedom of Information Act [FOIA]."
Brief for the Appellees at 20-21.
On June 15, 1998, the District Court dismissed all of
Cummock's claims. See Cummock v. Gore, Civ. No. 97-981
(D.D.C. June 15, 1998) (Memorandum), reprinted in App. 228.
In sum, the trial court held that Cummock lacked a judicially
enforceable right to participate in Commission activities, that
her request for documents was untimely, and that she lacked
standing to challenge the Commission's notice of its meetings
as inadequate. This appeal followed.
II. Analysis
FACA is not new legislation, having been enacted more
than a quarter of a century ago. There has been considera-
ble litigation over the statute's meaning, so there is a wealth
of case law to guide us in this case. For example, in recent
years, this court has considered and decided whether a given
group constitutes an advisory committee for the purposes of
FACA, see, e.g., Sofamor Danek Group, Inc. v. Gaus, 61 F.3d
929 (D.C. Cir. 1995), when a member of the public has
standing to sue under FACA, see, e.g., Byrd v. EPA, No.
98-5180, 1999 WL 252643 (D.C. Cir. April 30, 1999), and what
are the appropriate remedies for violations of FACA, see, e.g.,
California Forestry Ass'n v. United States Forest Serv., 102
F.3d 609 (D.C. Cir. 1996). Although the instant case presents
a unique factual scenario, it is clear that the issues posed here
are readily resolved by reference to the terms of the statute,
the supporting legislative history, and well established prece-
dent.
The Government seeks to cast Cummock as essentially a
disgruntled Commission member, who failed to convince her
fellow Commissioners of her view and then pursued this
lawsuit as an alternative avenue of recourse. The District
Court agreed with the Government that Cummock had no
valid legal claims and dismissed Cummock's complaint in its
entirety. Our review of the District Court's ruling is de novo,
see Systems Council EM-3 v. AT&T, 159 F.3d 1376, 1378
(D.C. Cir. 1998). We reject the Government's self-serving
characterizations. In point of fact, Cummock has raised a
viable claim under FACA and her lawsuit was improperly
dismissed. Accordingly, we reverse.
A.
Our first task is to explain what is truly at issue here. In
the District Court, Cummock alleged a slew of FACA viola-
tions and sought a broad range of injunctive and declaratory
relief. It is apparent on appeal, however, that Cummock's
position turns principally on her lack of access to information
relied upon by the Commission, and her concomitant inability
to prepare an informed dissent. To be sure, Cummock
continues to argue--at least in her briefs--that the Commis-
sion violated FACA's charter and notice provisions, as well as
the APA. See Brief of Appellant at 17-20, 35-37. However,
she has also made it quite clear that "[s]he does not seek to
enjoin use of the report, but only a declaration that FACA
was violated, and an opportunity to obtain relevant informa-
tion and to modify, correct, and publish her complete dis-
sent." Reply Brief of Appellant at 16. In other words, she
seeks relief solely in connection with her claim under s 10(b)
of FACA.
Cummock's counsel conceded as much at oral argument,
stating that what Cummock desires, in a nutshell, is the
opportunity to obtain and review all documents relied upon by
the Commission in formulating its recommendations, and to
amend her dissent if necessary to ensure a complete and fully
informed expression of her objections. Under these circum-
stances, we find that the only claim before us warranting our
attention is Cummock's assertion that the Commission denied
her access to relevant documents, and thereby thwarted her
dissenting voice.
Cummock's claim is rooted in s 10(b) of FACA, which
provides as follows:
Subject to [FOIA], the records, reports, transcripts, min-
utes, appendixes, working papers, drafts, studies, agenda,
or other documents which were made available to or
prepared for or by each advisory committee shall be
available for public inspection and copying at a single
location in the offices of the advisory committee or the
agency to which the advisory committee reports until the
advisory committee ceases to exist.
This provision "affirmatively obligates the Government to
provide access to the identified materials." Food Chem.
News, 980 F.2d at 1472. In other words, the Government
must make such materials available for public inspection and
copying, even in the absence of a particular request, unless
"the agency reasonably claims [the materials] to be exempt
from disclosure pursuant to FOIA." Id. at 1469. According
to Cummock, the Commission violated s 10(b) by failing to
make the required information available to her, even when
she specifically requested it in connection with her work on
the Commission. She identifies particular documents to
which she was allegedly entitled (i.e., the inch-thick briefing
paper, the ATA correspondence, the classified annex, and the
information on protective breathing equipment), adding that
she "is unable at this point to say how much she has not
seen." Brief of Appellant at 22. Cummock argues, in short,
that the Commission's FACA violations interfered with her
right and responsibility to participate in its deliberations, and
compromised her ability to prepare a fully informed dissent.
B.
Before proceeding to the merits of Cummock's claim, we
must confirm our jurisdiction to hear this dispute. See Steel
Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1010 (1998).
In particular, we must assure ourselves of Cummock's stand-
ing to sue for a violation of FACA based on the Commission's
failure to supply her with the information required under the
Act. The constitutional standing requirements are familiar:
Cummock must show that she has suffered a particularized
injury to a cognizable interest, her injury is fairly traceable to
the Government's actions, and a favorable judicial ruling will
likely redress her injury. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992).
Cummock readily satisfies the standing requirements in
this case. First, she suffered an injury under FACA insofar
as the Commission denied her requests for information that it
was required to produce. See Public Citizen, 491 U.S. at 449;
Byrd, 1999 WL 252643, at *3. Second, her injury was
directly caused by the Commission's alleged violation of
FACA. Finally, her injury is redressable by the relief she
seeks--namely, access to documents to which she is entitled
under FACA and an opportunity to amend her dissent to
reflect any changes stemming from a review of those materi-
als. See NRDC, 147 F.3d at 1023 ("[T]he appellees plainly
have standing to request injunctive relief directing the [agen-
cy] to make Committee documents and records available to
the full extent permitted by FACA....").
We turn next to the question of whether Cummock possess-
es an enforceable right under FACA. In the Government's
view, Cummock possesses no cause of action here. The
Government contends that it does not matter that Cummock
was a Commission member, because her claim of entitlement
to documents represents merely an "internal dispute[ ] among
committee members," for which there are no meaningful
standards to guide judicial review. Brief for the Appellees at
15. Thus, the Government argues that Cummock, like any
member of the public, had only a limited right, while the
Commission was in existence, to obtain information pursuant
to s 10(b) of FACA. According to the Government, even
during the course of Commission deliberations, Cummock had
no right under FACA to obtain documents that were exempt
from public disclosure under FOIA. Furthermore, because
the Commission no longer exists, the Government asserts
that Cummock must seek Commission documents via a prop-
erly filed FOIA request, which the Government "stands ready
to process." Brief for the Appellees at 20. Under this
scenario, if the Government refuses to release certain infor-
mation, Cummock would then be required to file suit under
FOIA, challenging that decision.
In short, the Government would have us adopt the broad
principle that a duly appointed advisory committee member,
who has all necessary security clearances, has no rights
beyond those enjoyed by the public-at-large. Under this
view--from which Government counsel stubbornly refused to
budge at oral argument--advisory committee membership
accords no real right to participate in committee proceedings.
Indeed, counsel went so far as to suggest that the Govern-
ment could, without violating FACA, appoint an individual to
an advisory committee and then wall that individual off from
the committee's operations, rendering membership essentially
meaningless. The Government's position is rather astonish-
ing, and we reject it.
It would be quite absurd for us to hold that a FACA
advisory committee--a public deliberative body that is sub-
ject to precise statutory mandates designed to ensure open-
ness and fair deliberations--may simply exclude unpopular
viewpoints from participation. Yet, according to the Govern-
ment, this outcome is reasonable, because Congress, in draft-
ing FACA, said nothing about committee members obtaining
rights of access beyond those of the public. We are told that
sanctions short of judicial review will flow to committees that
operate to exclude particular members: an unhappy member
can refuse to sign the committee's report, and FACA's sun-
shine provisions will ensure that such irregularities are ex-
posed to the public. In the Government's opinion, however,
appointed committee members possess no particular rights of
participation, and may even be denied access to information
underscoring the committee's recommendations.
We flatly reject the Government's view, for it is simply
untenable in light of the stated purposes of FACA. In
passing this legislation, Congress emphasized the need "to
ensure that persons or groups directly affected by the work
of a particular advisory committee would have some represen-
tation on the committee," National Anti-Hunger Coalition,
711 F.2d at 1074 n.2, and to protect against "the risk that
governmental officials would be unduly influenced by industry
leaders," Public Citizen v. National Advisory Committee on
Microbiological Criteria for Foods, 886 F.2d 419, 437 (D.C.
Cir. 1989) (Edwards, J., concurring in part and dissenting in
part); see also Cargill, Inc. v. United States, No. 97-31190,
1999 WL 225205, at *2 (5th Cir. April 19, 1999) ("FACA is
designed to ensure that advisory committees are fairly consti-
tuted and properly monitored so that they will provide sound
advice."). These concerns were expressly embodied in the
provisions of FACA requiring that committee membership be
fairly balanced in terms of viewpoints and functions, and that
committees exercise independent judgment free from improp-
er influences. See 5 U.S.C. app. 2 s 5(b)(2), (3). Yet, an
interpretation of FACA that permitted a given advisory com-
mittee to exclude a disfavored member would fly in the face
of the principle established by these requirements: a commit-
tee might be nominally balanced, because an individual was
appointed to represent certain views, but effectively unbal-
anced, because that individual was precluded from meaningful
participation. Moreover, contrary to the Government's asser-
tions at oral argument, FACA's sunshine provisions, while a
central feature of the Act, are not a substitute for the Act's
provisions requiring balance and independence.
In Food Chemical News, we found that, in order to give
meaning to FACA's sunshine provisions, s 10(b) must be
read to impose an affirmative obligation on the Government
to, "whenever practicable, [provide] access to the relevant
materials before or at the meeting at which the materials are
used and discussed." 980 F.2d at 1472. Likewise, in order to
give meaning to FACA's fair balance and independent judg-
ment provisions, the Act must be read to confer on a commit-
tee member the right to fully participate in the work of the
committee to which he or she is appointed. Any other
reading would nullify Congress's express intent.
We find the Government's position somewhat disingenuous,
moreover, as committee membership is manifestly not mean-
ingless in the "real world" of Washington policy making.
Appointment to an advisory body is often coveted and highly
esteemed, and the benefits flow both ways: while the individ-
ual member gains "recognition and even prestige," the Gov-
ernment obtains valuable advice and political legitimacy with
respect to its policy decisions. Association of Amer. Physi-
cians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 914 (D.C.
Cir. 1993); see also Jay S. Bybee, Advising the President:
Separation of Powers and the Federal Advisory Committee
Act, 104 Yale L.J. 51, 58-59 (1994) ("The government ...
uses advisory committees to legitimize agency viewpoints.
An agency decisionmaker may have reached a tentative or
even a firm conclusion about a particular matter, and may
look to an advisory committee to validate that conclusion.
Politically, the agency's decision will not be salable without
some outside, 'neutral' support.") (footnote omitted); id. at 59
("[P]residential advisory committees may serve purely politi-
cal ends, as vehicles for communicating with Congress and
the people, building support for proposals, or masking the
government's unwillingness to act."). Thus, we have ob-
served that:
When the executive branch endorses [a committee's]
advice and seeks to promote the policy course suggested
by the committee, the executive branch draws upon the
committee's political legitimacy. Congress' effort to en-
sure that these committees are balanced in terms of
viewpoint recognizes their usefulness for political (and
patronage) purposes.
Association of Amer. Physicians and Surgeons, 997 F.2d at
914. Given these realities, it is apparent that committee
membership bestows both rights and obligations beyond
those given to members of the general public.
In any event, the Government does not dispute that com-
mittee members have at least the same rights under FACA
as the public. Although we disagree with the Government's
position that the rights of a committee member extend no
further than the rights of a non-member, even taking only
this limited view, the Government's concession is significant.
Because there is no question under our precedent that mem-
bers of the public possess enforceable rights to obtain infor-
mation under FACA, see Food Chem. News, 980 F.2d at 1472,
it follows a fortiori that committee members have at least
these same rights. And we have also made it clear that
FACA rights are enforceable even after an advisory commit-
tee has been disbanded. See, e.g., Byrd, 1999 WL 252643, at
*4 (rejecting argument that plaintiff's injury was not redress-
able where panel had already completed its work and been
disbanded).
The Government's concession that committee members
have at least the same rights under FACA as the public goes
to the heart of Cummock's document request. Cummock
clearly possesses an enforceable right to information under
FACA, because any member of the public possesses such a
right. Moreover, Cummock possesses an even greater right
than a member of the public, because, as a Commission
member, she is entitled to fully participate in its delibera-
tions. Thus, provided that Cummock was granted the requi-
site security clearance, the Commission could not deny her
access to information that it reviewed and relied upon in
formulating its recommendations--even if, for instance, that
information might have been withheld from the public pursu-
ant to a FOIA exemption.
For the purposes of this case, two avenues of relief follow
from our conclusion that Cummock has an enforceable right
under FACA. First, to the extent that Cummock seeks
information that was made available to the Commission dur-
ing the course of its deliberative process and without which
her ability to fully and adequately participate in that process
was impaired, she is entitled to review such materials. On
this score, no one seems to know precisely what Cummock
still needs. At oral argument, Cummock's counsel was un-
able to pinpoint what documents Cummock is entitled to
receive to which the Government has yet to provide her
access. Government counsel, while indicating that Cummock
has received certain documents, was likewise unable to assure
us that she has obtained everything that she might be enti-
tled to review. Therefore, on remand, the District Court
must engage in the necessary discovery and fact finding to
determine whether any additional materials fall within the
parameters of information to which Cummock is entitled. Cf.
Animal Legal Defense Fund, 104 F.3d at 431 (remanding to
district court, after finding that committee was subject to
FACA, "so that the district court may determine whether
there are documents to which the appellants may obtain
access under FACA and whether other injunctive relief
should issue"); California Forestry Ass'n, 102 F.3d at 613
("We are unable to determine the propriety of injunctive
relief at the summary judgment stage because the district
court has yet to make factual findings.").
Second, assuming that Cummock is entitled to review cer-
tain Commission documents to which she has heretofore been
denied access, she must also be given an opportunity to
amend and publish a dissent incorporating her fully enlight-
ened views. We note that there is no dispute here over
Cummock's right to have her dissent published with the final
report. The Government gave her that right by publishing
her dissent initially, so the question is no longer at issue.
Because the Commission's FACA violations frustrated Cum-
mock's ability to prepare a complete and informed dissent,
the Government must allow Cummock to revise that dissent if
she wishes to do so. Furthermore, because the final report is
still widely available, including on the internet, see , and may still be in use
by agency decision makers, the Government must publish and
distribute Cummock's revised dissent in the same places as it
originally circulated the final report and dissent. Finally, the
District Court should consider whether, in light of any
amendments that are made to Cummock's dissent, modifica-
tion of the editor's note would be appropriate.
III. Conclusion
For the above reasons, we reverse the decision of the
District Court and remand the matter for further proceedings
consistent with this opinion.
So ordered.
Rogers, Circuit Judge, concurring: I write separately to
clarify two points.
First, notwithstanding the broad language in the court's
opinion, see Opinion at 16-17, 19, the court is not foreclosing
the government from showing that it would not be "practica-
ble" to disclose information to all members of a committee
established under the Federal Advisory Committee Act. Cf.
Food Chem. News Inc. v. Department of Health and Human
Servs., 980 F.2d 1468, 1469 (D.C. Cir. 1993). Although the
court concludes that members of a FACA committee are
entitled to "fully participate" in committee deliberations, see
Opinion at 19, the court has not considered, and expresses no
view about, whether "full" participation necessarily entails an
equal opportunity to participate at all times. For example, a
FACA committee might plausibly claim that it may consider
classified information even if such information cannot be
made available to all of its members for want of a security
clearance or "need to know." Exec. Order 12,958, s 4.2(a)(3),
60 Fed. Reg. 19,825 (1995). However, whether denial of
access to classified or sensitive information would constitute
an actionable denial of "full" participatory rights is not before
the court (but may arise on remand) because the government
has not identified any reason to treat Cummock on less-than-
equal footing with other committee members. She asserts
that she had the necessary security clearance and the govern-
ment does not contest that assertion. See Appellee's Brief at
20 n.8. To the extent the government maintains there is still
a "need to know" threshold requirement before classified
information can be disclosed, see id. (citing Exec. Order
12,958), the court's holding that Cummock has a right to
participate fully in the committee's deliberations, which in-
cludes a cause of action to obtain the same information
provided other members, appears to satisfy the need-to-know
requirement, although the issue could be explored as neces-
sary by the district court on remand.
Second, following from the court's holding that there is a
cause of action under FACA for a committee member to
obtain information considered during committee delibera-
tions is the question of what a member may do with that
information, i.e., whether FACA allows additional equitable
remedies entitling Cummock to amend her dissent or delete
the editor's note. Broad remedies may be available. Cf.
California Forestry Ass'n v. United States Forest Serv., 102
F.3d 609 (D.C. Cir. 1996); see also Cort v. Ash, 422 U.S. 66,
78 (1975), and its progeny, Transamerica Mortgage Advisors,
Inc. v. Lewis, 444 U.S. 11, 18 (1979); Touche Ross & Co. v.
Redington, 442 U.S. 560, 575-76 (1979). Neither party has
fully briefed the question of remedies, the district court did
not address it, nor has this court previously considered the
scope of remedies available to committee members who, after
a committee has disbanded and released its final report,
challenge the manner in which the committee deliberated.
Still, in view of the publication of Cummock's dissent, her
right to participate fully would be seriously diminished were
she unable to correct her dissent in light of information
previously wrongfully withheld from her and to have it pub-
lished in corrected form. See Opinion at 20. Given congres-
sional intent to avoid the wasteful expenditure of public
money and biased proposals, see Public Citizen v. United
States Dept. of Justice, 491 U.S. 440, 453 (1988), in part by
requiring committee membership to be "fairly balanced" and
the advice to be the result of the committee's "independent
judgment," see 5 U.S.C. app. 2 s 5(b)(2), (3), the court
reasonably concludes that such a remedy reflects congres-
sional intent. See Transamerica Mortgage Advisors, Inc.,
441 U.S. at 25. Contrary to the government's suggestion, see
Appellee's Brief at 15-17, such relief does not represent
judicial intrusion in intra-committee disputes; the committee
has already decided to publish Cummock's dissent. But, in
view of the posture of the case on appeal, the district court
retains leeway to consider the scope of its remedial authority
in light of arguments that the parties may advance on re-
mand. See, e.g., Opinion at 20.