United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2008 Decided June 27, 2008
No. 07-5023
CENTER FOR ARMS CONTROL AND NON-PROLIFERATION,
APPELLANT
v.
JOHN I. PRAY, JR., DEPUTY EXECUTIVE SECRETARY OF THE
NATIONAL SECURITY COUNCIL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00682)
Jules Zacher argued the cause and filed the briefs for
appellant.
Alisa B. Klein, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Jeffrey A. Taylor, U.S. Attorney, Jonathan F. Cohn, Deputy
Assistant Attorney General, and Mark B. Stern, Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: GINSBURG, HENDERSON, and RANDOLPH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: The Center for Arms Control
and Non-Proliferation claims the Commission on the
Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction violated the Federal Advisory
Committee Act (FACA), Pub. L. No. 92-463, 86 Stat. 770
(1972) (codified at 5 U.S.C. app.), by refusing to make certain
records publicly available. The district court dismissed the
case on the ground that the Commission is exempt from the
FACA. We agree and therefore affirm the judgment.
I. Background
President George W. Bush established the Commission
in 2004 “for the purpose of advising the President ... in order
to ensure the most effective counterproliferation capabilities
of the United States and response to the September 11, 2001,
terrorist attacks and the ongoing threat of terrorist activity.”
Exec. Order No. 13,328 §§ 1, 2(a), 69 Fed. Reg. 6901, 6901
(Feb. 6, 2004). Chaired by Judge Laurence Silberman and
former Senator Charles Robb, the Commission comprised a
number of experts from the public and private sectors.
Commission on the Intelligence Capabilities, Commissioners,
at http://www.wmd.gov/commissioners.html. After
conducting a study, the Commission was to “submit to the
President ... a report of [its] findings ... and its specific
recommendations.” Exec. Order No. 13,328 § 2(d), 69 Fed.
Reg. at 6902. The President also instructed the Central
Intelligence Agency and “other components of the
Intelligence Community” to “utilize the Commission and its
resulting report.” Exec. Order No. 13,328 § 2(d), 69 Fed.
Reg. at 6902.
Concerned about disclosing sensitive information, the
Commission closed its meetings to the public, see, e.g.,
3
Notice of Meeting of the Commission on the Intelligence
Capabilities, 69 Fed. Reg. 31,820 (June 7, 2004), but made
some efforts to inform the public of its activities. For
example, after a meeting the Commission would release a
public statement identifying some of the participants in the
meeting and summarizing the issues discussed. See, e.g.,
Joint Statement of the Co-Chairmen of the Commission on
the Intelligence Capabilities, at
http://www.wmd.gov/20040716.html (July 15, 2004). The
Commission also maintained a public reading room, where it
made available meeting agendas and summaries. On March
31, 2005 the Commission duly submitted to the President its
report, the bulk of which was made publicly available. See
Comm’n on the Intelligence Capabilities of the U.S.
Regarding Weapons of Mass Destruction, Report to the
President of the United States, xi (2005), available at
http://www.wmd.gov/report/wmd_report.pdf.
Dissatisfied with the extent of the Commission’s
disclosures, the Center asked the Commission for the minutes
of its meetings and for other records. Then, having received
no response, the Center sued the Commission and its
Executive Director, Vice Admiral (Ret.) John Scott Redd.
The Center sought a declaration that the Commission and
Redd had violated §§ 10(b), 10(c) and 11(a) of the FACA and
a writ of mandamus compelling them to “publicly releas[e] ...
all unclassified materials which are covered by” those
sections of the Act.
While the case was pending, the Commission wound up
its business, transferred legal custody of its records to the
National Security Council (NSC), transferred physical
custody of those records to the National Archives and
Records Administration, and dissolved. Because the
Commission no longer existed and Redd “no longer ha[d]
authority or control over Commission documents,” the district
4
court dismissed as moot the Center’s claims against the
Commission and Redd.
Shortly before that ruling, however, the Center,
presumably in order to avert its looming mootness problem,
joined as a defendant Stephen Hadley, the Assistant to the
President for National Security Affairs, commonly referred to
as the National Security Advisor. The Government moved to
dismiss the claims against Hadley (for whom John I. Pray, Jr.,
Deputy Executive Secretary of the NSC, has since been
substituted) on various grounds, two of which are relevant
here. First, the Government contended the Commission came
within the exemption from the FACA as provided in
§ 4(b)(1), for advisory committees “utilized by the Central
Intelligence Agency.” Second, the Government argued that,
even if the Commission were not exempt, mandamus relief
would not lie because “neither ... [Pray] nor the NSC has a
duty to plaintiff under any of the three provisions of FACA
on which plaintiff relies – let alone a ‘clear and indisputable’
and ‘clear and compelling’ duty that is ‘free from doubt’ – to
make publicly available the former Commission’s
documents.” See, e.g., Heckler v. Ringer, 466 U.S. 602, 616
(1984) (writ of mandamus available “only if the defendant
owes [plaintiff] a clear nondiscretionary duty”).
The district court first determined that, unless the
Commission was exempt from the FACA, mandamus relief
would be appropriate because “[t]he issue is not the continued
existence of the Commission; it is the continued existence of
the documents.” The court then granted the Government’s
motion to dismiss on the ground that the Commission was
exempt from the FACA because it was “utilized by” the CIA.
The court “read[] the word ‘utilize’ in FACA § 4(b) in
accordance with its ordinary meaning: ‘to put to use.’”
5
II. Analysis
The Center contends the Commission is not exempt from
the FACA. The Government, defending the district court’s
ruling, argues the Commission was exempt because it was
“utilized by” the CIA. In the alternative, the Government
argues, much as it did before the district court, that the Center
is not entitled to mandamus relief because “the NSC had no ...
specific and nondiscretionary duty to revisit the
Commission’s determinations as to which materials could
properly be released.”
We hold the Commission was exempt from the FACA.
Accordingly, we do not address whether mandamus relief
would otherwise be available.*
A. The FACA
The Congress enacted the FACA in order “to control the
establishment of advisory committees to the federal
government and to allow the public to monitor their existence,
*
The Government also asserts that the case is moot because
the Center is not entitled to a writ of mandamus and “there is no
proper defendant against whom declaratory relief can be awarded.”
We must, of course, determine the case is not moot and we have
Article III jurisdiction before proceeding to the merits. Steel Co. v.
Citizens for Better Env’t, 523 U.S. 83, 94 (1998). Even if the
Center’s claims against the Commission and its executive director
became moot when the Commission relinquished custody of its
records and ceased to exist, this case is not moot because,
regardless whether mandamus relief is available, a declaration of
the Center’s legal right to the materials could form the basis of an
injunction against the NSC, which would redress the Center’s
claimed injury. See Cummock v. Gore, 180 F.3d 282, 289-90, 292
(D.C. Cir. 1999); Byrd v. EPA, 174 F.3d 239, 243-45 (D.C. Cir.
1999).
6
activities, and cost.” Animal Legal Defense Fund v. Shalala,
104 F.3d 424, 426 (1997); see FACA § 2. To those ends, the
FACA requires the President, the relevant standing
committees of the Congress, the relevant agency heads, and
the Administrator of General Services to review the activities
and finances of each advisory committee, and requires that
the membership of each advisory committee “be fairly
balanced in terms of point of view represented.” FACA §§ 5-
8; see In re Cheney, 406 F.3d 723, 727 (D.C. Cir. 2005) (en
banc); Nat’l Anti-Hunger Coal. v. Exec. Comm. of the
President’s Private Sector Survey of Cost Control, 711 F.2d
1071, 1073 & n.1 (D.C. Cir. 1983) (“reject[ing] the ...
contention that the ‘fairly balanced’ requirement ... is not
binding on the President”).
The FACA also imposes upon advisory committees a
number of disclosure obligations, three of which the Center
claims the Commission violated. Every advisory committee
is required, under § 10(c) of the Act, to keep “[d]etailed
minutes of each meeting,” and, under § 11(a), to “make
available to any person ... copies of transcripts of [its]
meetings.” In addition, § 10(b) provides
the records, reports, transcripts, minutes, 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.
Pursuant to § 3(2) of the FACA, “any committee, board,
commission,” etc., qualifies as an “advisory committee” if it
was
(A) established by statute ..., (B) established or utilized
by the President, or (C) established or utilized by one or
more agencies, in the interest of obtaining advice or
7
recommendations for the President or one or more
agencies or officers of the Federal Government.
We have on several occasions addressed the meaning of the
term “utilized” in § 3(2) to determine whether a committee
was subject to the requirements of the FACA. Although this
case concerns the meaning of “utilized” in the provision of
§ 4 exempting from the FACA advisory committees “utilized
by” the CIA, prior judicial interpretations of that term as used
in § 3 bear upon our analysis of the exemption in § 4.
B. “Utilized” in § 3
The seminal decision on the meaning of “utilized” in § 3
is Public Citizen v. United States Department of Justice, in
which the Supreme Court held the Standing Committee on the
Federal Judiciary of the American Bar Association was not
“utilized” by the Department of Justice or by the President in
the course of screening potential nominees for federal
judgeships. 491 U.S. 440 (1989). The Court acknowledged
that the Executive “utilized” the ABA Committee in the
“common sense” meaning of the word, that is, to “make[] use
of.” Id. at 452. The Court was nonetheless reluctant to adopt
the “unqualified[]” meaning of such a “woolly verb” as
“utilized” because even a
nodding acquaintance with FACA’s purposes, as
manifested by its legislative history and as recited in § 2
of the Act, reveals that it cannot have been Congress’
intention ... to cover every formal and informal
consultation between the President or an Executive
agency and a group rendering advice.
Id. at 452-53. “Tip[ping] the balance decisively against”
applying the FACA to the ABA Committee was the concern
that doing so “would present formidable constitutional
8
difficulties,” not the least of which would be “infring[ing]
unduly on the President’s Article II power to nominate federal
judges and [thus] violat[ing] the doctrine of separation of
powers.” Id. at 465-66; see also U.S. CONST. art. II, § 2, cl. 2.
The Court’s opinion was itself somewhat fuzzy when it
came to the exact meaning of “utilized” in § 3 of the FACA.
Subsequently, in Animal Legal Defense Fund, we determined,
after examining Public Citizen and several of our own
decisions made in such light as it shed, that a committee is
“utilized” by the Executive for purposes of § 3 only if it is
“amenable to ... strict management by” the Executive. Public
Citizen, 491 U.S. at 457-58; see Animal Legal Defense Fund,
104 F.3d at 430-31 (discussing Food Chem. News v. Young,
900 F.2d 328, 333 (1990), and Wash. Legal Found. v. U.S.
Sentencing Comm’n, 17 F.3d 1446, 1450-51 (D.C. Cir.
1994)). We stressed that “the utilized test is a stringent
standard, denoting something along the lines of actual
management or control.” Animal Legal Defense Fund, 104
F.3d at 430-31. (quotation marks and emphasis omitted); see
also Byrd v. EPA, 174 F.3d 239, 245-48 (1999)
(“participation by an agency or even an agency’s significant
influence over a committee’s deliberations does not qualify as
management and control such that the committee is utilized
by the agency under FACA”) (quotation marks omitted).
C. “Utilized” in § 4
Section 4 of the FACA exempts from the Act “any
advisory committee established or utilized ... by the Central
Intelligence Agency.” FACA § 4(b)(1). When it comes to
this exemptive provision, the interpretive shoe is on the other
foot: The broader the meaning of “utilized,” the fewer the
committees subject to the FACA. In reading § 4, therefore,
the Government contends we should give “utilized” its
“plain,” that is, its broad meaning – “put to use” or, as the
9
Court put it in Public Citizen, “made use of.” For its part, the
Center contends “utilized” in § 4 must have a narrow
meaning, along the lines of that adopted in Public Citizen
(and elaborated in our subsequent decisions) for purposes of
§ 3. The Center, however, never proposes a specific
definition or standard for determining whether a committee
was “utilized,” leaving it open for the Government to suggest
the Center is claiming an advisory committee is exempt under
§ 4 only if it is under the “actual management or control” of
the CIA.
In our view, neither the Government’s broad
interpretation of “utilized” nor the narrow interpretation it
attributes to the Center is quite right for purposes of § 4. In
the end, however, we agree with the Government that the
Commission was “utilized by” the CIA and hence was
exempt from the FACA.
Our analysis begins but cannot end with competing
canons of statutory interpretation. In the Government’s
corner is the rule that “where ... the words of the statute are
unambiguous, the judicial inquiry is complete.” Desert
Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (quotation
marks omitted). That can hardly be dispositive in view of the
Supreme Court’s having told us the term “utilized” in § 3 is
not unambiguous but “woolly” and means something less
encompassing than “made use of.” Public Citizen, 491 U.S.
at 452.
On the Center’s side is the “natural presumption that
identical words used in different parts of the same act are
intended to have the same meaning,” Envtl. Def. v. Duke
Energy Corp., 127 S. Ct. 1423, 1432 (2007) (quotation marks
omitted), so that “utilized” in § 4 is no broader than the same
term in § 3. That presumption, however, “readily yields
whenever there is such variation in the connection in which
10
the words are used as reasonably to warrant the conclusion
that they were employed in different parts of the act with
different intent.” Id. (quotation marks omitted). This is just
such a case: The Court’s reasons for interpreting “utilized”
narrowly in Public Citizen have no bearing upon the purpose
of the CIA exemption in § 4. The Court interpreted “utilized”
as it did in order to keep the FACA from interfering with the
President’s constitutional power to nominate federal judges.
491 U.S. at 465-67. There is simply no evident risk that
interpreting “utilized” broadly for purposes of the CIA
exemption in § 4 would interfere with the exercise of any
power constitutionally assigned to the President; indeed, the
Center suggests none.
The Congress obviously intended the exemption for
advisory committees utilized by the CIA to ensure the FACA
would not threaten the continued secrecy of the CIA’s
intelligence sources and methods, organization, or personnel,
all of which the CIA is charged by law with protecting from
disclosure. See, e.g., 50 U.S.C. §§ 403-1(i), 403g. But for the
exemption, the CIA’s need for and statutory duty to ensure
secrecy could preclude its using advisory committees
altogether. The Congress obviously did not intend that result.
The meaning of “utilized” propounded by the
Government is somewhat broader than necessary to fulfill the
purpose of the exemption, so understood. As we said in
Sofamor Danek Group v. Gaus, the Supreme Court in Public
Citizen “made clear that mere subsequent and optional use of
the work product of a committee by a federal entity does not
involve utilization under [§ 3 of the] FACA,” 61 F.3d 929,
933-37 (D.C. Cir. 1995); neither should it cloak that
committee with the secrecy afforded by the exemption in
§ 4(b)(1). On the other hand, we agree with the Government
that “the concerns that animated the CIA exemption” will not
be adequately addressed if that exemption reaches only those
11
advisory committees over which “the CIA exercises actual
management and control.” Being under the CIA’s
management or control is surely a sufficient condition, but
just as surely not a necessary condition, to bring an advisory
committee within the exemption.
In fact, the Commission on the Intelligence Capabilities
well illustrates why the exemption must reach some advisory
committees that are not under the management or control of
the CIA. The President charged the Commission with
assessing whether the Intelligence Community, including the
CIA, see Exec. Order No. 13,328 § 6(h), 69 Fed. Reg. at
6903; 50 U.S.C. § 401a(4)(B), is ready and able to identify
and respond to the proliferation of weapons of mass
destruction. Exec. Order No. 13,328 § 2(a), 69 Fed. Reg. at
6901. To that end, the Commission was to “examine the
capabilities and challenges of the Intelligence Community to
collect, process, analyze, produce, and disseminate
information concerning” the proliferation and use of weapons
of mass destruction. Exec. Order No. 13,328 § 2(a), 69 Fed.
Reg. at 6901. The President “specifically” instructed the
Commission to examine “intelligence” relating to Iraq, Libya,
and Afghanistan, and to “evaluate the challenges of obtaining
information” about the proliferation and use of weapons of
mass destruction “in closed societies.” Exec. Order No.
13,328 § 2(b)-(c), 69 Fed. Reg. at 6901-02. Not surprisingly,
the Director of Central Intelligence was ordered to ensure
Commission members obtained the necessary security
clearances and the Commission adopted “security rules and
procedures ... [that are] consistent with the national security
and [that] protect against unauthorized disclosure of
information.” Exec. Order No. 13,328 § 5, 69 Fed. Reg. at
6902. In sum, the Commission’s charge included reviewing
the CIA’s intelligence methods and organization, and possibly
also its sources and personnel. The Commission, therefore, is
12
exactly the kind of advisory committee the Congress intended
to exempt from the FACA.
The Center wonders whether exempting the Commission
“mean[s] any[]time the CIA is mentioned in a Presidential
order establishing a Presidential Commission that the FACA
will not apply.” We need not now fix the outer boundaries of
the exemption because the Commission on the Intelligence
Capabilities so clearly lies at its center: It was created by the
President, who is primarily responsible for intelligence and
national security matters, for the explicit purpose of
examining and furnishing advice to the President, the CIA,
and others in the Intelligence Community on issues relating to
intelligence and national security.
Finally, our conclusion that the Commission was exempt
from the FACA is supported by the rule that “where a statute
is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is to adopt the
latter.” Jones v. United States, 526 U.S. 227, 239 (1999)
(quotation marks omitted). The Government contends that if
the Commission is not exempt, then the FACA may interfere
with “the President’s prerogatives to receive confidential
advice.” The Center responds, “It is difficult to see how
turning over even one ... document [requested pursuant to
FACA §§ 10(b)-(c) and 11(a)] is such an onerous burden on
the executive branch as to call into question a separation of
powers issue.”
When the Legislature purports to affect the prerogatives
of the President or his subordinates, we must ask whether it
“impermissibly undermines the powers of the Executive
Branch, or disrupts the proper balance between the coordinate
branches by preventing the Executive Branch from
accomplishing its constitutionally assigned functions.”
13
Morrison v. Olson, 487 U.S. 654, 685 (1988) (quotation
marks, alterations, and citation omitted). To answer that
question, we compare the degree of interference in the
Executive’s function with the Congress’s “need to promote
objectives within [its] constitutional authority.” Nixon v.
Admin. of Gen. Servs., 433 U.S. 425, 443 (1977); see also
Assoc. of Am. Physicians & Surgeons, Inc. v. Clinton (AAPS),
997 F.2d 898, 910 (D.C. Cir. 1993).
We have recognized that the FACA, at least as applied to
“Presidential advisory committees,” FACA § 3(4), could
interfere with the President’s need, “[i]n making decisions on
personnel and policy, and in formulating legislative
proposals, ... to seek confidential information from many
sources, both inside the government and outside.” Cheney,
406 F.3d at 728; see also United States v. Nixon, 418 U.S.
683, 705-06 (1974) (“the protection of the confidentiality of
Presidential communications” “flow[s] from the nature of
enumerated powers”); AAPS, 997 F.2d at 909. The “FACA
was enacted to cure specific ills, above all the wasteful
expenditure of public funds for worthless committee meetings
and biased proposals.” Public Citizen, 491 U.S. at 453; see
FACA § 2. Whatever the weight of the Congress’s interest in
regulating advisory committees generally, however, we
strongly doubt the FACA could be applied to the Commission
on the Intelligence Capabilities consistent with the
constitutional separation of powers. See Cheney, 406 F.3d at
728 (“In light of the severe separation-of-powers problems in
applying FACA on the basis that private parties participated
in, or influenced, or were otherwise involved with a
committee in the Executive Office of the President, we must
construe the statute strictly”); AAPS, 997 F.2d at 910 (“A
statute interfering with a President’s ability to seek advice
directly from private citizens as a group, intermixed, or not,
with government officials, ... raises Article II concerns”).
14
The risk of impermissible interference is sharpened by
the Commission’s mandate to “advis[e] the President in the
discharge of his constitutional authority under Article II of the
Constitution to conduct foreign relations, protect national
security, and command the Armed Forces of the United
States.” Exec. Order No. 13,328 § 2(a), 69 Fed. Reg. at 6901;
see also U.S. CONST. art. II § 2, cl. 1-2 & § 3, cl.3; Schneider
v. Kissinger, 412 F.3d 190, 195 (D.C. Cir. 2005); Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396, 414-15 (2003); Haig v.
Agee, 453 U.S. 280, 291-92 (1981). As the Supreme Court
has observed, “[t]he President, both as Commander-in-Chief
and as the Nation’s organ for foreign affairs, has available
intelligence services whose reports are not and ought not to be
published to the world.” Nixon, 418 U.S. at 710 (quotation
marks omitted).
Subjecting the Commission on the Intelligence
Capabilities to the requirements of the FACA would certainly
interfere to some substantial degree with the President’s
exercise of these specific and important powers, and therefore
raise grave and doubtful questions about the constitutionality
of the statute, regardless whether it would require the
disclosure of one document or many. Accordingly, our duty
to favor the statutory interpretation that averts a constitutional
collision between the Legislative and Executive Branches
“solidifies” our conclusion that the Commission was
“utilized” by the CIA and was therefore exempt from the
FACA pursuant to § 4 of that Act. Public Citizen, 491 U.S. at
467.
III. Conclusion
In sum, we hold the Commission was exempt from the
FACA because it was “utilized by” the CIA within the
meaning of that term in § 4(b)(1) of the statute. The
15
judgment of the district court dismissing the Center’s case is
therefore
Affirmed.