Application of Federal Advisory Committee Act to Editorial Board of Department of Justice Journal

Application of Federal Advisory Committee Act to
Editorial Board of Department of Justice Journal

A n o u ts id e a d v iso ry o r e d ito ria l b o a rd fo r a n e w D e p a rtm e n t o f J u stic e p u b lic a tio n w o u ld b e
s u b je c t to th e F e d e ra l A d v is o ry C o m m itte e A c t i f it d e lib e ra te d a s a b o d y in o r d e r to f o r m u ­
la te re c o m m e n d a tio n s, b u t w o u ld n o t b e su b je c t to FA C A if e a c h in d iv id u a l m e m b e r re v ie w e d
s u b m iss io n s to th e jo u r n a l an d g a v e h is o r h e r o w n o p in io n a b o u t p u b lic a tio n .

M arch 27, 1990

M em o ran d u m f o r th e E x e c u tiv e A s s is ta n t
TO TH E A TTO R N EY G EN E R A L

You have asked whether an outside advisory or editorial board for a new
publication of the Department would be subject to the Federal Advisory
Committee Act (“FACA”), 5 U.S.C. app. §§ 1-15. We believe that the board
would be subject to FACA if it deliberated as a body in order to formulate
recommendations, but would not be subject to FACA if each individual mem­
ber reviewed submissions to the journal and gave his own opinion about
publication.1

I.

The definition of “advisory committee” under FACA covers, among other
things, “any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup thereof
. . . which is . . . established or utilized by one or more agencies, in the
interest of obtaining advice or recommendations for . . . one or more agen­
cies or officers of the Federal Government.” 5 U.S.C. app. § 3(2). An
advisory board—a committee that collectively reviews drafts of articles, makes
recommendations about publication, and suggests editorial policy— would

1 We assum e th at the ed ito rial or ad visory board w ould not p erform operational functions w ith re sp ec t
to th e pub licatio n . I f the b o a rd actually m a d e the final d ecisio n s ab o u t w hat to p u blish o r h ow to ru n the
jo u rn a l, ad d itio n al legal q u estio n s w ould be raised. See, e.g., 41 C.F.R. § 101-6.1004(g); 5 U .S .C . app.
§ 9(b); Public Citizen v. Commission on the Bicentennial o f the U.S. Constitution, 622 F. Supp. 753
(D .D .C . 1985).

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 probably come within FACA. It would be “established” by the Department,
“in the interest of obtaining advice or recommendations” for the Department.
5 U.S.C. app. § 3(2). As the legislative history of FACA shows, the term
“established” is to be interpreted in its “most liberal sense, so that when an
officer brings together a group by formal or informal means, by contract or
other arrangement, and whether or not Federal money is expended, to obtain
advice and information, such group is covered by the provisions” of the Act.
S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). In view of this broad
meaning, the advisory or editorial board would come within FACA if it de­
liberated as a body.2
Furthermore, FACA would apply even though the advisory board, as we
understand, could include some members who are full-time government of­
ficers or employees. Under the statute, the definition of “advisory committee”
excludes “any committee which is composed wholly of full-time officers or
employees o f the Federal Government.” 5 U.S.C. app. § 3(2)(iii). By impli­
cation, a committee that is not “wholly” composed of government employees
or officers comes within the statute. See Center fo r Auto Safety v. Tiemann,
414 F. Supp. 215, 225 n.10 (D.D.C. 1976) (committee of state and federal
employees is covered by FACA), remanded on other grounds sub nom. Cen­
ter f o r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978); S. Rep. No. 1098
at 8 (FACA motivated by abuses involving committees “whose membership
in whole or in part” comes from outside the government).
Although some courts have put limiting constructions on the meaning of
“advisory committee,” we do not believe that such a limiting construction
could be justified here, if the editorial or advisory board deliberated as a
body in order to make its recommendations. The definition of “advisory
committee.” if read as broadly as the language permits, is expansive. See,
e.g., N ader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975), vacated as
m oot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). The language could extend to
instances where application o f FACA—with its requirements of balanced mem­
bership, open meetings, and public availability of docum ents— would
unconstitutionally intrude on the exercise o f the President’s authority. Courts
have construed the statute to avoid such outcomes. See Public Citizen v.
U nited States D e p ’t o f Justice, 491 U.S. 440 (1989) (FACA does not apply
to American Bar Association’s committee on judicial selection); N ader v.
Baroody, 396 F. Supp. at 1234-35 (FACA does not apply to casual, day-to-
day meetings by which the President gathers information and views); see

2O n o c c a sio n , in d eterm in in g w h eth er a group is an “ ad v iso ry com m ittee,” O L C has relied upon lim it­
in g d ra ft g u id e lin e s fo r F A C A that w ere published in the F ed eral R egister, 28 Fed. R eg. 2306 (1973), but
n o t a d o p te d , 39 F ed . R eg. 12,389 (1 9 7 4 ). These g u id elin es, O L C has stated, are an early a d m inistrative
in te rp re ta tio n o f FA C A an d thus e n title d to som e w eight. See M em orandum fo r Irving P. M argulies,
D e p u ty G e n e ra l C o u n se l, D epartm ent o f C om m erce, from T heodore B. O lson, A ssistant A tto rn e y G e n ­
e ra l, O ffic e o f L e g a l C o u n se l, Re: P resident’s Private Sector Survey on Cost Control at 6-7 (D ec. 15,
1982). E v e n u n d e r th ese guidelines, a g ro u p that has “all o r m ost” o f five "c h arac te ristic s” w ould p ro b ­
ab ly a p p ly to the p ro p o se d board (fix ed m em bership, estab lish m en t by federal official, d efined purpose
o f p ro v id in g a d v ic e on particular s u b jec ts, and reg u lar o r p e riodic m eetings), and the last ch aracteristic
m ig h t a lso a p p ly (an organizational stru c tu re , such as a g ro u p o f o fficers, and a staff).

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also National Anti-Hunger Coalition v. Executive Comm, o f the P residen t’s
Private Sector Survey on C ost Control, 557 F. Supp. 524, 530 (D.D.C.)
(FACA, if read broadly, could violate separation of powers), a jf'd and re­
manded, 711 F.2d 1071 (D.C. Cir.), amended, 566 F. Supp. 1515 (D.D.C.
1983). However, no constitutional issues would be raised by applying FACA
to the contemplated editorial or advisory board. The business of such a
board would not touch on any “constitutionally specified task committed to
the Executive,” Public Citizen v. United States D e p ’t o f Justice, 491 U.S. at
460, nor would regulating the board’s activities under FACA interfere with
the President’s discharge of his duties.

II.

We believe that the Act would not reach an advisory board if the Depart­
ment sought only the views of individuals rather than the views of the board
as a whole. FACA applies by its terms to “advisory committees.” “Advi­
sory committee” is a term that connotes a body that deliberates together to
provide advice. Therefore, as a matter of statutory construction, we believe
that FACA does not apply to a group which simply acts as a forum to collect
individual views rather than to bring a collective judgment to bear.
GSA regulations confirm the commonsense notion of what differentiates
a “committee” from a collection of individuals.3 The regulations state that
FACA does not cover:

Any meeting initiated by a Federal official(s) with more than
one individual for the purpose of obtaining the advice of indi­
vidual attendees and not for the purpose of utilizing the group
to obtain consensus advice or recommendations. However,
agencies should be aware that such a group would be covered
by the Act when an agency accepts the group’s deliberations
as a source of consensus advice or recommendations . . . .

41 C.F.R. § 101-6.1004(i). Although this provision is not entirely clear, it
appears to mean that FACA does not cover a collection of individuals who
do not perform a collegial and deliberative function and whose views are
considered individually rather than as part of a “sense of the committee.”

5 In Public Citizen v. United States Dep't o f Justice, the C ourt held that the G SA re g u la tio n s w ere
e n titled to “d im in ish ed d e fe re n ce " b ecau se they w ere not issued until ten years after FA C A w as passed
and because FA C A , w h ile em p o w erin g G SA to issue “ adm inistrative g uidelines and m anagem ent c o n ­
tro ls,” 5 U .S.C . app. § 7 (c), did not ex p ressly authorize G SA to fill in the defin itio n s o f th e statutory
term s. 491 U .S. at 463 n.12. But see 491 U.S. at 477-81 (K ennedy, J., concurring in the ju d g m e n t).
N evertheless, the C o u rt d id not view the regulations as w holly w ithout w eight.

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 The clearest example of such a collection of individuals would be a group
o f experts, each of whom reviews submissions in his own area of expertise.
Nevertheless, even if each member of the editorial board reviews every ar­
ticle and sends his comments to the Department, the arrangement would still
appear to fall outside FACA, because a collective judgment would not be
sought. Indeed, since the regulation permits a meeting at which individual
views are offered, it would, a fortiori, permit the solicitation of individual
views o f board members who are not at a meeting. The board members
would merely be acting in the same way as individual contractors who offer
consulting services to the government. Cf. H.R. Rep. No. 1017, 92d Cong.,
2d Sess. 4 (1972) (“The term advisory committee does not include any con­
tractor or consultant hired by an officer or agency of the government, since
such contractor would not be a ‘committee, board, commission, council . . .,
or sim ilar group . . . .” ’) (alteration in original). We caution, however, that
this regulation has not been directly tested in the courts.
W hile the regulation also permits a group to meet without having to
comply with FACA, as long as only individual views are offered, such an
arrangement would be open to legal challenge. As a practical matter, the dy­
namics of such a gathering are likely to lead to members exchanging, analyzing,
and debating the views presented, and it would be difficult to argue, in that
event, that the members were offering only discrete, individual opinions.
If the editorial or advisory board is set up as a vehicle for the presenta­
tion o f individual views, it m ay be prudent to leave the board without any
formal structure, such as officers or staff. One opinion in a case under
FACA could be read to suggest that such “indicia of formality” may be
relevant to whether the principle recognized in the GSA regulation would
apply. See N atural Resources Defense Council, Inc. v. Herrington, 637 F.
Supp. 116, 120 (D.D.C. 1986).

W ILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel

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