Center for Arms Control and Non-Proliferation v. Pray

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.

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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.,

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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

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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.’”

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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).

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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

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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

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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

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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.