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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2003 Decided January 2, 2004
No. 02-5387
NATURAL RESOURCES DEFENSE COUNCIL AND
TRI–VALLEY CARES,
APPELLEES
v.
DEPARTMENT OF ENERGY AND
SPENCER ABRAHAM, SECRETARY OF ENERGY,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(00cv02431)
Alisa B. Klein, Attorney, U.S. Department of Justice,
argued the cause for appellants. With her on the briefs were
Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern,
Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard M. Crystal argued the cause for appellees. With
him on the brief was Eric R. Glitzenstein.
Before: RANDOLPH and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
PER CURIAM: This appeal presented the question whether
the Federal Advisory Committee Act (‘‘FACA’’), 5 U.S.C.
App. 2, applied to a committee the Department of Energy
formed to provide it with advice regarding the National
Ignition Facility at Lawrence Livermore National Laboratory
in California. The committee, which is known as the Novem-
ber 2001 Status Review Committee, consisted of federal em-
ployees and employees of contractors who manage and oper-
ate Department-owned laboratories. The district court held
that FACA applied to the committee (and to two other
committees not the subject of this appeal) and that the
Department had failed to comply with FACA’s requirements.
Natural Resources Defense Council v. Abraham, 223 F.
Supp. 2d 162, 194 (D.D.C. 2002). The court ordered the
Department to disclose committee documents and to include
in the committee’s reports a statement that although FACA
governed the committee, the Department had not complied
with the statute. Id. at 194–96. The court also declared that
the Department had a policy of establishing committees to
advise it on this project in violation of FACA. Id. at 195.
It is unnecessary to describe the arguments against and in
support of the district court’s judgment, most of which cen-
tered on the meaning of our decision in Food Chemical News
v. Young, 900 F.2d 328 (D.C. Cir. 1990). On November 24,
2003, after the case had been argued, the President signed
into law the National Defense Authorization Act for Fiscal
Year 2004. Section 3112, entitled ‘‘Department of Energy
Project Review Groups Not Subject to Federal Advisory
Committee Act By Reason of Inclusion of Employees of
Department of Energy Management and Operating Contrac-
tors,’’ provides:
3
An officer or employee of a management and operat-
ing contractor of the Department of Energy, when
serving as a member of a group reviewing or advis-
ing on matters related to any one or more manage-
ment and operating contracts of the Department,
shall be treated as an officer or employee of the
Department for purposes of determining whether
the group is an advisory committee within the mean-
ing of section 3 of the Federal Advisory Committee
Act (5 U.S.C. App.).
Because committees consisting entirely of federal employees
are exempt from FACA, see 5 U.S.C. App. 2 § 3, the new
legislation had the effect of exempting Department commit-
tees such as the November 2001 committee, as the Natural
Resources Defense Council (‘‘NRDC’’) concedes.
In post-argument submissions, the Department argues that
passage of § 3112 entitles it to prevail on the merits of its
appeal; NRDC urges us to dismiss the Department’s appeal
as moot in light of § 3112. We think this is a largely
meaningless dispute. Both sides agree that the district
court’s order must be set aside to the extent that it (1) finds
the November 2001 committee in violation of FACA; (2)
requires the Department to disclose documents relating to
the November 2001 committee, and to include a disclaimer in
any reports the committee issues in the future; and (3)
declares that the Department has an unlawful policy of
forming committees with contractor employees in violation of
FACA.
We therefore remand the case to the district court for the
purpose of altering its judgment to the extent indicated in the
preceding paragraph. We leave it to the district court to
decide in the first instance whether any further relief is
appropriate.
So ordered.