United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2000 Decided July 14, 2000
No. 99-1383
Natural Resources Defense Council, Inc., et al.,
Petitioners
v.
Nuclear Regulatory Commission and
United States of America,
Respondents
On Petition for Review of a Regulation of the
Nuclear Regulatory Commission
David E. Adelman argued the cause for petitioners. With
him on the briefs were Eric R. Glitzenstein and Howard
Crystal.
Wendy M. Keats, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief
were David W. Ogden, Acting Assistant Attorney General,
Leonard Schaitman, Attorney, and John F. Cordes, Solicitor,
U.S. Nuclear Regulatory Commission.
Before: Edwards, Chief Judge, Randolph and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: The National Resources Defense
Council, Inc. (NRDC)1 asks us to vacate a regulation, promul-
gated by the Nuclear Regulatory Commission, that defines
the term "meeting" for purposes of the Government in the
Sunshine Act, 5 U.S.C. s 552b. The Sunshine Act requires
that gatherings of members of certain agencies be open to the
public if they constitute "meetings" under the Act. NRDC
argues that the Commission's regulation is inconsistent with
the text and legislative history of the statute. It further
contends that the regulation is improper because it fails to
provide procedural safeguards necessary to facilitate effective
relief in the event that a meeting is improperly closed to the
public.
We deny the petition for review. We are unable to accept
NRDC's first argument because the Commission has done
nothing more than adopt, verbatim, the Supreme Court's own
interpretation of the meaning of "meeting" under the Act, as
set forth in FCC v. ITT World Communications, Inc., 466
U.S. 463 (1984). We are unable to accept the second argu-
ment because it conflicts with the Court's injunction against
imposing non-statutory procedural requirements on agency
decisionmaking, as set forth in Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519 (1978).
I
The Sunshine Act provides, with ten specified exemptions,
that "every portion of every meeting of an agency shall be
open to public observation." 5 U.S.C. s 552b(b) (emphasis
__________
1 NRDC is joined by a number of other public interest groups.
For ease of reference, this opinion will refer to these parties
collectively as "NRDC" or "petitioner."
added). It imposes procedural requirements to ensure, inter
alia, that advance notice is given to the public before agency
meetings take place. See id. s 552b(e). It also imposes
procedural requirements an agency must follow before deter-
mining that one of the ten exemptions from the openness
requirement applies. See id. s 552b(d), (f). However, nei-
ther the openness requirement, nor the related procedural
requirements, are triggered unless the governmental entity at
issue is an "agency," and unless the gathering in question is a
"meeting" of that agency.
For purposes of the Act, "agency" is defined as an execu-
tive branch authority or independent regulatory agency
"headed by a collegial body composed of two or more individ-
ual members, a majority of whom are appointed to such
position by the President with the advice and consent of the
Senate." Id. s 552b(a)(1) (cross-referencing 5 U.S.C.
s 552(e), subsequently redesignated s 552(f)). In addition, as
will become relevant in our later discussion of the ITT case,
the definition of "agency" extends to "any subdivision thereof
authorized to act on behalf of the agency." Id. s 552b(a)(1).
The Nuclear Regulatory Commission is an agency covered by
the Act. See Philadelphia Newspapers, Inc. v. NRC, 727
F.2d 1195, 1199-1200 (D.C. Cir. 1984).2
The Sunshine Act defines the term "meeting" as "the
deliberations of at least the number of individual agency
members required to take action on behalf of the agency
where such deliberations determine or result in the joint
conduct or disposition of official agency business...." 5
U.S.C. s 552b(a)(2). The Commission's original Sunshine Act
regulation, adopted in 1977, merely reproduced the language
of the statutory definition. See 42 Fed. Reg. 12,875, 12,877
(1977).3 It also clarified the kinds of communications not
subject to the Act, explicitly excepting only social gatherings,
__________
2 The Nuclear Regulatory Commission is composed of five
members appointed by the President and confirmed by the Senate.
See 42 U.S.C. s 5841.
3 The Sunshine Act requires each covered agency to promul-
gate implementing regulations. See 5 U.S.C. s 552b(g).
and briefings of the Commission by outsiders where discus-
sion was informational and without specific reference to pend-
ing Commission matters. See id. Under the 1977 regulation,
the Commission "treated every discussion of agency business
by three or more Commissioners, no matter how informal or
preliminary it might be, as a 'meeting' for Sunshine Act
purposes." 64 Fed. Reg. 24,936, 24,937 (1999).
In 1984, the Supreme Court decided ITT. In the course of
its opinion, the Court said the following about the term
"meeting" under the Act:
This statutory language contemplates discussions that
effectively predetermine official actions. Such discus-
sions must be sufficiently focused on discrete proposals
or issues as to cause or to be likely to cause the individu-
al participating members to form reasonably firm posi-
tions regarding matters pending or likely to arise before
the agency.
466 U.S. at 471 (citations and quotation marks omitted). In
1985, noting the decision in ITT, the Commission issued an
"interim" rule that revised the definition of "meeting" by
appending the Supreme Court's definition, verbatim, to the
language of the prior regulation. See 50 Fed. Reg. 20,889
(1985). The 1985 rule stated:
"Meeting" means the deliberations of at least a quorum
of Commissioners where such deliberations determine or
result in the joint conduct or disposition of official Com-
mission business, that is, where discussions are suffi-
ciently focused on discrete proposals or issues as to
cause or to be likely to cause the individual participat-
ing members to form reasonably firm positions regard-
ing matters pending or likely to arise before the agency.
Id. at 20,891 (codified at 10 C.F.R. s 9.101(c)) (new language
in italics).
The 1985 rule was controversial. In response to criticism,
the Commission announced that it would not conduct non-
Sunshine Act discussions until it put into place procedures to
govern such discussions. Before the Commission completed
those procedures, the American Bar Association's Administra-
tive Law Section announced its intention to consider the
issue, and the Commission decided to defer implementation of
the 1985 rule pending receipt of the ABA's views. See 64
Fed. Reg. at 24,938. In 1987, the ABA issued its recommen-
dations, which urged federal agencies and courts to interpret
the term "meeting" as the Commission had proposed in
1985--by using the Supreme Court's language in ITT. See
ABA Section of Administrative Law, Report to House of
Delegates (J.A. at 460).4 Despite the ABA's recommenda-
tions, the Commission took no further action. Although the
"interim" rule of 1985 remained on the books, the agency
continued to apply its pre-1985 regulation.
In May 1999, the Commission published, for notice and
comment in the Federal Register, its intention to implement
the 1985 rule's definition of "meeting." The Commission
stated that its purpose was "to bring the NRC's Sunshine Act
regulations, and the way they are applied by NRC, into closer
conformity with Congressional intent, as set forth in the
legislative history of the Sunshine Act and as clarified in
[ITT]." 64 Fed. Reg. at 24,936. In the Commission's view,
Congress had "carefully weighed the competing consider-
ations involved: the public's right of access to significant
information, on the one hand, and the agencies' need to be
able to function in an efficient and collegial manner on the
other." Id. at 24,939. "Congress," the Commission said, had
"struck a balance: it did not legislate openness to the maxi-
mum extent possible, nor did it provide unfettered discretion
to agencies to offer only as much public access as they might
choose." Id. The notice listed a number of examples of
topics that might be the subject of non-Sunshine Act discus-
sions under the new rule, "so long as the discussion will not
effectively predetermine final agency action." Id. at 24,941.
The topics included: "How well is the agency functioning,
what are our successes and failures, what do we see as major
__________
4 The Administrative Law Section issued its recommendations
in 1986; the ABA adopted them in February 1987. See 64 Fed.
Reg. at 24,938.
challenges in the next five and ten years, what is the state of
our relations with the public, industry, Congress, the press?"
Id. at 24,941-42.5 A final order implementing the rule be-
came effective on August 23, 1999. 64 Fed. Reg. 39,393
(1999).
II
This court has authority to set aside agency regulations
that are "not in accord with" the requirements of the Sun-
shine Act. 5 U.S.C. s 552b(g). That, NRDC contends, is
how the Commission's definition of "meeting" should be char-
acterized. We consider this contention below.
A
In petitioner's view, the agency's definition of "meeting" is
fundamentally inconsistent with both the language and legis-
lative history of the Act. NRDC's argument concerning the
statutory language cannot be easily dismissed. The Act
states that the term "meeting" means the deliberations of a
quorum of an agency, "where such deliberations determine or
result in the joint conduct or disposition of official agency
business." 5 U.S.C. s 552b(a)(2) (emphasis added). Select-
ing from the "or" clauses, the statutory definition of "meet-
ing" would appear to include any deliberations that "result in
the joint conduct ... of official agency business," even if they
do not "determine" either the joint conduct or disposition of
that business. The Commission's definition, on the other
hand, is limited to deliberations that are "likely to cause the
individual participating members to form reasonably firm
positions regarding" the matter--that is, to deliberations that
"effectively predetermine final agency action." 64 Fed. Reg.
at 24,941. Indeed, the Commission's examples of what it
regards as outside the scope of "meetings" demonstrate the
potential divergence between its definition and the literal
__________
5 The Commission subsequently advised Congress and this
court that discussions focused on specific pending matters, such as
licensing and restart authorizations, will not take place except in
"meetings" covered by the Sunshine Act. See NRC Br. at 36; see
also J.A. at 240, 245, 357 (letters to members of Congress).
statutory language. As NRDC argues, surely formal agency
discussions of "how well" the agency is functioning, of its
"successes and failures," of its "major challenges in the next
five and ten years," and of the state of its "relations with the
public, industry, Congress, [or] the press" qualify as the
"joint conduct of official agency business," even if they do not
predetermine agency decisions.6
Nor are NRDC's arguments concerning legislative intent
frivolous. As petitioner points out, the Act begins with a
declaration of policy that "the public is entitled to the fullest
practicable information regarding the decisionmaking pro-
cesses of the Federal Government." Pub. L. No. 94-409, s 2,
90 Stat. 1241, 1241 (1976).7 In our own decision below in ITT,
we made the same point. See 699 F.2d 1219, 1243 (D.C. Cir.
1983) ("[T]he Act's presumption of openness requires that all
doubts be resolved against closure."), rev'd, 466 U.S. 463
(1984). NRDC also notes that in an opinion issued prior to
the Supreme Court's decision in ITT, this court pointed out
that the Sunshine Act, unlike the Freedom of Information Act
(FOIA), 5 U.S.C. s 552, lacks an express exemption for
predecisional matters. See Common Cause v. NRC, 674 F.2d
921, 929 (D.C. Cir. 1982); see also ITT, 699 F.2d at 1241
("The broad sweep of the Sunshine Act does not support a
distinction between an agency's predecisional actions and its
postdecisional efforts to implement, interpret, and promote
__________
6 Even on a literal reading, however, it is not enough that
discussions constitute joint conduct of official business; to come
with the term "meeting," such discussions must be "deliberations"
that "result in" such joint conduct. 5 U.S.C. s 552b(a)(2).
7 See also H.R. Rep. No. 94-880, pt. 1, at 2 (1976) ("Absent
special circumstances, there is no reason why the public should not
have the right to observe the agency decisionmaking process first
hand."). The Commission notes, however, that the Act's declaration
of policy goes on to state that "the purpose of this Act [is] to
provide the public with such information while protecting the rights
of individuals and the ability of the Government to carry out its
responsibilities." Pub. L. No. 94-409, s 2, 90 Stat. at 1241.
its policies.").8 And NRDC emphasizes, as we did in the
decision reviewed by the Supreme Court in ITT, that the
examples the legislative history provides of discussions ex-
cluded from the Act are largely limited to "passing references
to agency business at social gatherings, casual background
conversations in offices and corridors, banter at the golf
course, and breakfast or luncheon discussions among mem-
bers about the day's business." 699 F.2d at 1243 (footnotes
omitted).9 All of this, petitioner argues, supports the notion
that Congress intended to except only "casual" conversation
from the definition of "meeting"--not formal discussions
about the agency's business, even if such discussions are not
likely to be predeterminative.
NRDC acknowledges that the Senate Report on the Sun-
shine Act declares that "... the agency must be careful not
to cross over the line and engage in discussions which effec-
tively predetermine official actions." S. Rep. No. 94-354, at
19 (1975). But petitioner contends that the Commission cites
this sentence out of context, as it comes from a passage that
discusses the particular problems of three-member agencies,
__________
8 The Commission argues that "predecisional" is not necessarily
synonymous with "predeterminative," the adjective it uses for draw-
ing the line between meetings and nonmeetings. According to the
agency, under its definition " 'predecisional' matters fall on both
sides of the Sunshine Act divide." NRC Br. at 38 n.18; see also
Common Cause, 674 F.2d at 930 (" 'The meetings opened by [the
Act] are not intended to be merely reruns staged for the public
after agency members have discussed the issue in private and
predetermined their views.' ") (quoting S. Rep. No. 94-354, at 18
(1975)) (emphasis added). Common Cause did not address the
definition of "meeting" under the Act, but rather whether any of the
Act's express exemptions authorized the closure of budget discus-
sions that were conceded to be meetings. See 674 F.2d at 926.
9 See also S. Rep. No. 94-354, at 18 ("[B]rief references to
agency business where the Commission members do not give seri-
ous attention to the matter do not constitute a meeting."); 122
Cong. Rec. 28,474 (Aug. 31, 1976) (remarks of Rep. Fascell) (stating
that the definition of "meeting" "is intended to permit casual
discussions between agency members that might invoke the bill's
requirements under the less formal 'concern' standard").
in which any two members would necessarily constitute a
quorum.10 Indeed, the full sentence begins with the words,
"When two members constitute a quorum," which fill the
space indicated by the ellipses above. NRDC argues that
Congress did not intend the sentence to apply outside the
three-member agency context, and that it therefore has no
application to the five-member Nuclear Regulatory Commis-
sion. But see infra note 12.
In short, were we authorized to decide the validity of the
Commission's definition of "meeting" de novo, NRDC's argu-
ments would give us some pause. NRDC contends that we
are in fact so authorized, because courts do not accord
deference to an agency's statutory interpretation where the
statute at issue, like the Sunshine Act, "impose[s] general
obligations on [many] governmental agencies." NRDC v.
Defense Nuclear Facilities Safety Bd., 969 F.2d 1248, 1250-51
(D.C. Cir. 1992).11 But while we may not have to defer to the
__________
10 The passage reads as follows:
In three-member agencies, two members will constitute a
quorum.... It is not the intent of the bill to prevent any two
agency members, regardless of agency size, from engaging in
informal background discussions which clarify issues and ex-
pose varying views. When two members are less than a
quorum, such discussions would not in any event come under
the section's open meeting requirements. When two members
constitute a quorum, however, the agency must be careful not
to cross over the line and engage in discussions which effective-
ly predetermine official actions.
S. Rep. No. 94-354, at 19.
11 See Reporters' Comm. v. Dep't of Justice, 816 F.2d 730, 734
(D.C. Cir. 1987) (applying de novo review to agency interpretation
of FOIA), rev'd on other grounds, 489 U.S. 749 (1989); see also
Salleh v. Christopher, 85 F.3d 689, 692 (D.C. Cir. 1996) (declining to
accord deference where multiple agencies were granted authority to
interpret same statute). The customary deference mandated by
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), would not apply
here in any event because, as discussed below, the Supreme Court
has already determined the meaning of the term "meeting" under
the Act. See Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116,
views of the Nuclear Regulatory Commission, the views of the
Supreme Court are another matter. Because the Commis-
sion's definition is taken in haec verba from the Court's
unanimous opinion in ITT, we now turn to an examination of
that case.
B
The question before the Court in ITT was whether the
Sunshine Act applied to informal international conferences
attended by members of the Federal Communications Com-
mission (FCC). The conferences, referred to as the Consul-
tative Process, were intended to facilitate joint planning of
telecommunications facilities. In the hope of persuading
European nations to cooperate with its policy of encouraging
competition in overseas telecommunications services, the
FCC added the topic of new carriers and services to the
agenda. See 466 U.S. at 465. ITT, which opposed the entry
of new competitors, contended that the Consultative Process
sessions constituted "meetings" of the FCC and that the
Sunshine Act therefore required that they be held in public.
See id. at 465-66. This circuit agreed. See ITT, 699 F.2d at
1246-50. The Supreme Court, however, reversed, holding
that "the participation by FCC members in these sessions
constitutes neither a 'meeting' as defined by s 552b(a)(2) nor
a meeting 'of the agency' as provided by s 552b(b)." ITT,
466 U.S. at 469.
Writing for the Court, Justice Powell undertook an exami-
nation of the Sunshine Act's legislative history in order to
determine the appropriate definition of the word "meeting."
As the Nuclear Regulatory Commission does here, he empha-
sized those portions of the history suggesting an intent to
balance the interest in openness with administrative concerns.
"[I]n drafting the Act's definition of 'meeting,' " the Court
said, Congress "recognized that the administrative process
__________
131 (1990) ("Once we have determined a statute's clear meaning, we
adhere to that determination under the doctrine of stare decisis,
and we judge an agency's later interpretation of the statute against
our prior determination of the statute's meaning.").
cannot be conducted entirely in the public eye." 466 U.S. at
469. Quoting the Senate Report, the Court continued:
" '[I]nformal background discussions [that] clarify issues and
expose views' are a necessary part of an agency's work." Id.
(quoting S. Rep. No. 94-354, at 19). Because it believed that
applying the Act in such contexts "would prevent such discus-
sions and thereby impair normal agency operations," the
Court concluded that the Act's definition did not encompass
them. Id.
In a footnote, Justice Powell examined the evolution of the
statutory language defining the term "meeting." That evolu-
tion, he said, "reflects the congressional intent precisely to
define the limited scope of the statute's requirements." Id. at
470 n.7. In particular, he noted that "the Senate substituted
the term 'deliberations' for the previously proposed terms--
'assembly or simultaneous communication' or 'gathering'--in
order to 'exclude many discussions which are informal in
nature.' S. Rep. No. 94-354, at 10." Id. (other citations
omitted). Justice Powell also noted that although "earlier
versions of the Act had applied to any agency discussions that
'concer[n] the joint conduct or disposition of agency busi-
ness,' " the final version applied "only to deliberations that
'determine or result in' the conduct of 'official agency busi-
ness.' " Id. (citations omitted). "The intent of the revision,"
he inferred, "clearly was to permit preliminary discussion
among agency members." Id. (citations omitted).
Finally, the Court turned to the same passage of the
Senate Report that we referred to at the end of Part II.A
above--the passage NRDC contends applies only to three-
member agencies. Relying on that language, the Court con-
cluded that the statutory definition of "meeting" "contem-
plates discussions that 'effectively predetermine official ac-
tions.' " Id. at 471 (quoting S. Rep. No. 94-354, at 19). This
conclusion was stated without qualification--without any sug-
gestion that it was limited to three-member agencies. To the
contrary, the Court went on to endorse a definition of "meet-
ings" recommended for all agencies in the Interpretive Guide
published by the Office of the Chairman of the Administrative
Conference of the United States (ACUS):
Such discussions must be "sufficiently focused on dis-
crete proposals or issues as to cause or to be likely to
cause the individual participating members to form rea-
sonably firm positions regarding matters pending or
likely to arise before the agency." R. Berg & S. Klitz-
man, An Interpretive Guide to the Government in the
Sunshine Act 9 (1978).
Id.12 This is the definition that the Nuclear Regulatory
Commission subsequently adopted as its own definition of
"meeting," and that NRDC now challenges as unlawful.
Having settled upon a definition of "meeting," ITT then
applied it to the Consultative Process sessions at issue in the
case. The Court noted that the three FCC commissioners
who attended those sessions constituted a quorum of the
FCC's Telecommunications Committee, to which the Commis-
sion had delegated the power to approve applications for
common carrier certification. The Committee was therefore
a " 'subdivision ... authorized to act on behalf of the agen-
cy' " with respect to such applications, and hence was itself an
"agency" within the Sunshine Act's definition. 466 U.S. at
470-71 (quoting 5 U.S.C. s 552b(a)(1)). But while the Court
found the Committee to be covered by the Act, it concluded
that the members had not engaged in discussions that effec-
tively predetermined official actions. The Court noted that
ITT had "alleged neither that the Committee formally acted
upon applications for certification at the Consultative Process
sessions nor that those sessions resulted in firm positions on
__________
12 The Supreme Court noted that "the Office of the Chairman
of the Administrative Conference of the United States prepared the
Interpretive Guide at Congress' request, s 552b(g), and after exten-
sive consultation with the affected agencies." 466 U.S. at 471 n.10.
The ACUS guide expressly rejected the suggestion that the quota-
tion from the Senate Report was limited to three-member agencies:
"[T]he passage necessarily has broader application, since there is
nothing in the statute which supports a special definition of 'meet-
ing' for agencies where two members make up a quorum." Inter-
pretive Guide at 6. We agreed with that view in our opinion below
in ITT. See 699 F.2d at 1243 n.163 (quoting Interpretive Guide at
6).
particular matters pending or likely to arise before the Com-
mittee." Id. at 471. Rather, the Court said, "the sessions
provided general background information" and permitted the
commissioners to engage in an exchange of views with their
foreign counterparts "by which decisions already reached by
the Commission could be implemented." Id. at 472.
Justice Powell did note that this court had reached a
contrary result. He observed, however, that we had done so
not by finding that the commissioners were deliberating
"upon matters within their formally delegated authority"--
i.e., applications for certification--but rather upon matters
within some "undisclosed authority, not formally delegated, to
engage in discussions on behalf of the Commission." Id. at
472. Such deliberations, the Supreme Court said, are not
covered by the Sunshine Act at all. Again quoting the
definition of "agency" rather than "meeting," the Court noted
that the only covered deliberations are those by a " 'subdivi-
sion ... authorized to act on behalf of the agency.' " Id. at
472 (quoting, without citation, s 552b(a)(1)). The Act only
applies, the Court said, "where a subdivision of the agency
deliberates upon matters that are within that subdivision's
formally delegated authority to take official action for the
agency." Id. Because "the Telecommunications Committee
at the Consultative Process sessions did not consider applica-
tions for common carrier certification--its only formally dele-
gated authority-- ... the sessions were not 'meetings' within
the meaning of the Sunshine Act." Id. at 473.
C
On its face, the Supreme Court's decision in ITT would
appear to end this appeal, as the definition of "meeting"
adopted by the Nuclear Regulatory Commission is the same
as that endorsed and applied by the Court in that case.
NRDC contends, however, that for a number of reasons ITT
is a much narrower opinion than the Commission believes it
to be, and that the decision's definition of "meeting" is at best
unauthoritative dictum--unnecessary to its holding and non-
binding upon this court.
NRDC argues, first, that ITT involved only the limited
question of whether the Sunshine Act applies where fewer
than a quorum of the agency's members attend international
conferences, and where those members have not been "for-
mally delegated authority to take official action for the agen-
cy." NRDC Br. at 25 (quoting ITT, 466 U.S. at 472). The
Supreme Court's "central rationale," petitioner contends, was
that the Act "applies only where a subdivision of the agency
deliberates upon matters that are within that subdivision's
formally delegated authority." Id. (quoting ITT, 466 U.S. at
472-73). Because the Telecommunications Committee lacked
delegated authority to deliberate on the business discussed at
the conferences, the Act did not apply. The Court's other
language, petitioner suggests, was simply dictum.
As our description of ITT makes clear, however, this was
not the central--or even a sufficient--rationale for the
Court's decision. Before considering the Committee's discus-
sions on subjects as to which it did not have delegated
authority, the Court first addressed those as to which it did:
namely, applications for common carrier certification. As to
any discussions on that subject, the Court concluded that the
Committee had not participated in "meetings" because--in
the words of the Interpretive Guide and now of the Commis-
sion's rule--such discussions were not "likely to cause the
individual participating members to form reasonably firm
positions regarding matters pending or likely to arise before
the agency." 466 U.S. at 471. It was only when the Court
went on to examine the rationale of this court below that it
considered the Committee's discussions on subjects as to
which it did not have delegated authority, and found those
discussions to be outside the Act. Because that finding could
not have sufficed to resolve whether discussions as to which
the committee did have authority constituted meetings, the
definition the Court relied upon to decide that question
cannot be characterized as dictum.
NRDC also contends that in applying its definition of
"meeting," the Court faced only the narrow question of
whether discussions on topics that the Commission had al-
ready decided were included. Petitioner is correct that the
discussions in ITT did involve an "exchange of views by which
decisions already reached by the Commission could be imple-
mented." Id. at 472. But the Court only relied on that fact
to conclude that the discussions did not "result[ ] in firm
positions on particular matters pending or likely to arise
before the Committee"--i.e., that the discussions necessarily
could not have "predetermined" official decisions because the
decisions had already been made. Id. at 471. The Court
gave no hint that its opinion was limited to this unique
situation, and nothing in the Court's definition of "meeting,"
or in the Interpretive Guide upon which it was based, sup-
ports such a reading. Although ITT may be factually distin-
guished from the instant case on this ground, we are not free
to turn every factual distinction into a reason for ignoring the
Supreme Court's considered guidance.
NRDC does correctly point out that there was a second,
truly independent ground for the Court's decision in ITT--
one to which we have averred, but not yet described. In a
single paragraph at the end of the opinion, the Court conclud-
ed that not only were the Consultative Process sessions not
"meetings" within the meaning of the Sunshine Act, they
were also not meetings of an "agency." The international
sessions were not meetings of an "agency," the Court said,
because the FCC did not convene them and could not unilat-
erally control their procedures. Id. at 473.
There is no question that this rationale was an independent
basis for the Supreme Court's decision: to come within the
Sunshine Act, discussions must be both "meetings" and meet-
ings of an "agency," and the Court concluded that the Consul-
tative Process sessions were neither. See id. at 469. None-
theless, "where there are two grounds, upon either of which
an appellate court may rest its decision, and it adopts both,
'the ruling on neither is obiter [dictum], but each is the
judgment of the court, and of equal validity with the other.' "
Dooling v. Overholser, 243 F.2d 825, 828 (D.C. Cir. 1957)
(quoting United States v. Title Ins. & Trust Co., 265 U.S. 472,
486 (1924)); see Woods v. Interstate Realty Co., 337 U.S. 535,
536 (1948) ("Where a decision rests on two or more grounds,
none can be relegated to the category of obiter dictum.").
Moreover, even if the Court's reliance on two independent
grounds rendered each dictum, we would still be bound by its
interpretation of the term "meeting," since " '[c]arefully con-
sidered language of the Supreme Court, even if technically
dictum, generally must be treated as authoritative.' " United
States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (quoting
Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 861
n.3 (1st Cir. 1993)); see also Bangor Hydro-Elec. Co. v.
FERC, 78 F.3d 659, 662 (D.C. Cir. 1996). As our above
recitation of ITT makes clear, the Supreme Court's language
was carefully considered, following as it did the Court's
detailed review of the Act's legislative history and its adoption
of the formulation in ACUS' own detailed guide.
Finally, NRDC contends that the Commission's definition
will undermine the purposes of the Act. Petitioner argues
that the Commission's definition should be vacated because it
eliminates an "objective" rule and replaces it with a "vague,
wholly subjective standard" that, if permitted to stand, "will
fatally undermine the Sunshine Act" and "make abuse inevit-
able." NRDC Br. at 11, 23. It is impossible to conceive,
NRDC argues, that the kinds of discussions the Commission
describes as non-meetings could occur without at least one
commissioner formulating a reasonably firm position on a
matter before the agency. Thus, petitioner urges, the Com-
mission's rule "is contrary to the Act." Id. at 24.
In many ways, NRDC's argument echoes points made by
this court in its decision below in ITT. See 699 F.2d at 1244.
In its own decision, however, the Supreme Court instructed
that the definition now adopted by the Commission is the one
that Congress itself intended. Because the Commission's
definition is therefore that of the Act itself, it neither can be
contrary to the Act nor can it fatally undermine it.13
__________
13 For like reasons, we reject NRDC's suggestion that we
vacate the Commission's definition because "there is no prospect
that it will solve the NRC's purported 'collegiality' deficit, which is
the ostensible rationale for the rulemaking." NRDC Br. at 28.
III
In the alternative, NRDC argues that even if the Commis-
sion's rule is consistent with the statutory definition, we
should "find it illegal for the NRC to implement the rule
without minimal procedural safeguards," such as maintaining
complete records of all closed, non-Sunshine Act discussions.
NRDC Br. at 13. Such procedures are necessary, petitioner
maintains, because the Commission cannot be trusted "to
determine unilaterally when they are starting to form 'rea-
sonably firm positions'--and hence when public access is
required." Id. Without a contemporaneous written record,
judicial review of whether the agency is improperly closing
meetings will assertedly not be possible.
NRDC does not argue that its proposed procedures are
required by the Sunshine Act itself, and they plainly are not.
As the Senate Report made clear: "Any meeting falling
outside the definition [in s 552b(a)] is not subject to any of
the other provisions of the bill." S. Rep. No. 94-354, at 19.
This dooms petitioner's challenge because, under the Su-
preme Court's decision in Vermont Yankee, " 'absent constitu-
tional constraints or extremely compelling circumstances'
courts are never free to impose on the NRC (or any other
agency) a procedural requirement not provided for by Con-
gress." Union of Concerned Scientists v. NRC, 920 F.2d 50,
53 (D.C. Cir. 1990) (quoting Vermont Yankee, 435 U.S. at
543); see also Envirocare of Utah, Inc. v. NRC, 194 F.3d 72,
78 (D.C. Cir. 1999). The Commission is, of course, at liberty
to adopt additional procedures in the exercise of its discre-
tion, see Vermont Yankee, 435 U.S. at 524, and in this case it
has done so: The agency has undertaken to keep a record of
the date, subject, and participants for any scheduled non-
Sunshine Act discussions among a quorum of commissioners
for an initial six month period, and has stated that it will not
discontinue this practice without advance notice to the public.
See 64 Fed. Reg. at 39,395; see also 64 Fed. Reg. at 24,942.
We, however, are without authority to impose such procedur-
al requirements against the Commission's will.
In response to the obstacle posed by Vermont Yankee,
NRDC makes two arguments based on analogies to litigation
under FOIA. First, it notes that when an agency claims that
documents are not covered by FOIA, a court may conduct an
in camera review to assess the validity of the agency's claims.
See, e.g., Spirko v. United States Postal Serv., 147 F.3d 992,
996 (D.C. Cir. 1998). The distinctions between in camera
review and the procedures requested by NRDC, however, are
plain. In camera review is expressly authorized by FOIA,
see 5 U.S.C. s 552(a)(4)(B),14 as it is by the Sunshine Act, see
id. s 552b(h)(1). Moreover, in camera review of an agency's
records does not require the agency to add any administrative
procedures or create any new documents; requiring the
Commission to keep minutes of its non-Sunshine Act discus-
sions would do both.
Second, NRDC points out that in FOIA litigation, this
circuit requires an agency to provide a plaintiff with a
"Vaughn index," a description of and detailed justification for
the non-disclosure of each withheld document. See Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973); see also Spirko, 147
F.3d at 997-98. But while this judicial rule does require an
agency to create a document (the index) that would not
otherwise exist, it is a rule that governs litigation in court and
not proceedings before the agency. In particular, it is a rule
the circuit imposed because FOIA itself places the burden on
the agency to sustain the lawfulness of specific withholdings
in litigation. See Vaughn, 484 F.2d at 825-26, 828; see also 5
U.S.C. s 552(a)(4)(B). The Sunshine Act likewise imposes
the burden of justifying specific closures on the agency, and
expressly authorizes the court to "take such additional evi-
dence as it deems necessary" to decide such cases. 5 U.S.C.
__________
14 The express authorization was not added to FOIA until 1974.
See Pub. L. No. 93-502, s B(2), 88 Stat. 1561, 1561-62 (1974)
(codified in relevant part at 5 U.S.C. s 552(a)(4)(B)). Previously,
trial courts conducted such reviews on the rationale noted in the
text below: i.e., in their role as triers of fact endeavoring to
determine whether the government had met its burden of justifying
specific nondisclosures. See Vaughn v. Rosen, 484 F.2d 820, 825
(D.C. Cir. 1973).
s 552b(h)(1). But this authorization, like the analogous one
in FOIA, applies only to suits charging violations of the Act
with respect to specific agency meetings15--not to petitions
like this one, which challenge an agency's implementing regu-
lations on their face.16 Neither Vaughn, nor the Sunshine
Act, authorizes this court to impose additional procedures on
the conduct of administrative rather than judicial proceed-
ings.
IV
Because the Supreme Court's decision in ITT renders
petitioner's challenge to the Commission's definition of "meet-
ing" unavailing, and because the Court's decision in Vermont
Yankee bars us from imposing the additional procedural
requirements NRDC seeks, the petition for review is denied.
__________
15 Section 552b(h)(1) grants district courts jurisdiction over
actions "to enforce the requirements" of the Act. "Such actions
may be brought by any person against an agency prior to, or within
sixty days after, the meeting out of which the violation of this
section arises...." 5 U.S.C. s 552b(h)(1). In such cases, the
"burden is on the defendant to sustain his action," and the court
may make in camera examinations "and may take such additional
evidence as it deems necessary." Id.
16 See 5 U.S.C. s 552b(g). This section authorizes any person
to "bring a proceeding in the United States Court of Appeals for
the District of Columbia to set aside agency regulations" promulgat-
ed to implement the requirements of the Act.