Export
Search for
Go
Subject Matter
Title
<<
<
Page 1  of  19
>
>>
Page Size
Go
Subject Matter Title Text Type FACASections
  Carpenter v. Morton, 424 F.Supp. 603 (D.Nev. 1976). The court addressed whether the Secretary of Interior was obligated to recharter the advisory boards created by the Taylor Grazing Act (“TGA”),43 U.S.C. § 315, et seq., and terminated by Section 14 of the Federal Advisory Committee Act (“FACA”),5 U.S.C. app. II, § §. 1 - 15, et seq. In 1939, Congress amended the TGA to establish boards of grazing district advisors in the several districts. “Pursuant to the TGA, the Dep’t of the Interior promulgated a regulation relating to the appointment, term of office and removal of members of grazing district boards.” 43 CFR Section 4114.1-3. Plaintiffs were members of grazing boards until January 1995. The board members asserted that the boards established under the TGA were exempt from any effect of the FACA because to allow termination of the boards under the FACA would necessarily involve an implied repeal of the TGA. The court agreed that implied repeals were not favored but disagreed with the basic assertion of the board members. The court noted that the purpose of FACA, “as it relates to this controversy, is to provide a means by which advisory committees which had been established by Congress, the President and various agencies could be reviewed so that those no longer furthering the purpose for which they were established could be terminated.” Carpenter, 424 F. Supp. at 604; 5 U.S.C. app. 2 II, § 2. “Section 14(a)(1) of the FACA provides that each advisory committee existing at the time of the effective date of the Act shall terminate within two years unless, among other things, the advisory is one established by an act of Congress and for which Congress has provided a longer duration period. Section 14(b)(1) contemplates that an advisory committee which had been terminated may be renewed.” Carpenter, 424 F. Supp. at 604, 605; 5 U.S.C. app. II, § 14. The court concluded that when Congress enacted the FACA, it was concerned with the proliferation of advisory committees that had outlived their usefulness and that, to remedy this, Congress chose to terminate all advisory committees. Further, the court also concluded, however, that Congress contemplated that the FACA would affect provisions of existing substantive laws and that, if later decided the advisory boards were necessary, Congress could enact the necessary legislation to recharter them. Thus, the court found that the Secretary had no obligation or authority to recharter the advisory boards originally established under the TGA. Case Law 2;14(a)(1);14(b)(1)
  Center for the Defense of Free Enterprise v. President's Comm'n on Americans Outdoors, No. C87 32C (W.D. Wash. Mar. 31, 1987) (order granting motion to intervene, and defendants’ and intervenors’ motion to dismiss). On January 28, 1985, President Reagan established an advisory commission, the President’s Commission on American Outdoors (“Commission”), to study outdoor recreation resources. After preparing its report, the Commission disbanded on January 31, 1987. Plaintiff, the Center for the Defense of Free Enterprise (“Center”), sought injunctive relief to prevent defendant from printing and disseminating the Commission’s report. This request was based on alleged violations of the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § § 1 – 15, et seq. Specifically, the Plaintiffs asserted “that the Commission held closed meetings in violation of FACA by failing to publish notice of each meeting in the Federal Register (5 U.S.C. app. II, § 10(a)(2)), failing to appoint a federal officer or employee to chair or attend each committee meeting (5 U.S.C. app. II, § 10(c)), and failing to keep minutes of meetings (5 U.S.C. app. II, § 10(c)).” Center, No. C87-32C at 2. Further, Plaintiff asserted that the FACA violations dated back to December 12, 1985. The court granted the joint motion by the National Parks and Conservation Association (“NPCA”), the National Resources Defense Council (“NRDC”), Paul C. Pritchard, and Nathaniel P. Reed, to intervene as a group. NPCA and NRDC are non-profit organizations with large memberships. Paul Pritchard, president of the NPCA, and Nathaniel Reed, a NRDC trustee, were senior advisors to the Commission. The intervenors asserted that the Plaintiff could not demonstrate that it suffered actual prejudice from any failure to comply with FACA’s technical requirements. Accordingly, the court noted that “the Ninth Circuit has adopted a harmless error doctrine which states that a federal agency’s procedural errors are not per se prejudicial.” Del Norte County v. U.S., 732 F.2d 1462, 1466 (9th Cir. 1984). Plaintiff’s members asserted that it had “inadequate access to the Commission decision-making process and could not make their opinions heard.” Center, No. C87-32C at 8. In response to this allegation, the court stated that “if the plaintiff’s members had opportunities to inform the Commission of their position on the subjects that the Commissions was required to study, then any violations of FACA constitutes harmless error.” Center, No. C87-32C at 8. The court also concluded that the Plaintiff’s requested remedy, injunctive relief, is inappropriate because the Commission only made recommendations. Moreover, the Commission did not promulgate specific regulations. Accordingly, in National Nutritional Foods v. Califano, 603 F.2d 327 (2d Cir. 1979), the court found that even though an advisory commission established by the Food and Drug Administration violated FACA, “the regulations that had been promulgated pursuant to the recommendations of the commission should not be invalidated because rulemaking procedures provided ample opportunity to remedy any infirmities which resulted from the FACA violations. This case presents even weaker facts to support invalidation of the Commission’s Report. . . . Therefore, the Plaintiff has even more opportunity than did the plaintiffs in Califano to remedy any bias it might perceive in the Commission’s report and the complaint should be dismissed on the grounds that any alleged violations constituted harmless error.” Center, No. C87-32C at 9, 10. Case Law 10(a)(2);10(C)
  Federal Advisory Committee Act - Duration of Veterans Administration Advisory Committees, 3 Op. O.L.C. 170 (1979). The Attorney General requested the Office of Legal Counsel (“OLC”) to reply to the Veterans Affairs’ Administrator’s letter to him, concerning the duration under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § § 1- 15 et seq., of four statutorily created Veterans Administration (“VA”) advisory committees. The OLC noted, “None of the acts establishing these advisory committees specifies whether the committee it creates shall exist for a certain term or indefinitely.” Section 14(a)(1)(B) of FACA states the following: “Each advisory committee which is in existence on the effective date of this Act shall terminate not later than the expiration of the two-year period following such effective date unless – (B) in the case of an advisory committee established by an Act of Congress, its duration is otherwise provided for by law.” Section 14(a)(2)(B) of FACA states the following: “Each advisory committee established after such effective date shall terminate not later than the expiration of the two–year period beginning on the date of its establishment unless – (B) in the case of an advisory committee established by an Act of Congress, its duration is otherwise provided for by law.” The OLC stated, “As the Administrator of Veterans Affairs suggested, because the statutes that created the four VA committees do not specify their terms of existence, they are governed by the automatic cutoff provisions quoted above unless their duration is, by implication, otherwise provided by law.” Since the enactment of FACA, the OLC “has been frequently called upon by executive agencies to construe section 14(a) as applied to particular advisory committees. Because the offices responsible for promulgating guidelines for the management of Federal advisory committees have themselves issued no interpretation of the phrase ‘duration is otherwise provided for by law,’ the OLC has consistently applied an interpretation of the FACA that the OLC reached in 1973 (in consultation with the Office of Management and Budget) based on the manifest intent and legislative history of the FACA.” In the OLC’s view, “the duration of a statutorily created advisory committee may be otherwise provided for by law either expressly or by implication. Such duration is provided for by implication if the statute that creates or assigns functions to an advisory committee provides for it a specific function that is continuing in nature and is an integral part of the implementation of a statutory scheme. The statutory assignment to a committee of some regular and well-defined participation in an agency’s administrative process would be sufficient to overcome the rebuttable presumption that, unless the statute that creates a committee deals expressly with termination, the committee is to terminate automatically in 2 years. Such an assignment must be more specific than the rendering of general advice to an agency with regard to some program area, which is the general function of most advisory committees.” The OLC concluded that “the duration of advisory committees may be determined by implication from the particular statute involved, and thus be ‘otherwise provided for by law,’ within the meaning of the FACA. This would permit such committees to survive the FACA’s 2-year cutoff provisions, 5 U.S.C. app. II, § 14(a)(1)(B) and (2)(B), notwithstanding the absence of any statute providing expressly for their termination. Under the above standards, Congress has so provided by law for the continuing duration of two VA advisory committees and for the extended duration of two other VA advisory committees for limited purposes only.” Office of Legal Counsel Opinions 14(a)(1)(B);14(a)(2)(B)
Applicability of FACA Advisory Committees - Application of the Russell Amendment (31 U.S.C. § 696), 3 Op. O.L.C. 263 (1979). Counsel to the President requested an opinion concerning a proposed Executive order reconstituting the National Advisory Committee for Women. The issue was whether the Office of Legal Counsel (“OLC”) concurred in the general view taken by the Office of Management and Budget (“OMB”) that the so–called “Russell Amendment" (31 U.S.C. § 696) did not limit the use of Government funds to pay the expenses of an advisory committee if (1) the funds are otherwise available for use in the procurement of advice of the kind that the committee provides, and (2) the committee has no non-advisory functions. The Office of Legal Counsel concurred in OMB’s view. The Russell Amendment states that no funds may be used to pay the expenses of any agency or instrumentality if (1) the agency or instrumentality has been in existence for more than one year and (2) Congress has not appropriated “any money specifically for such agency or instrumentality or specifically authorized the expenditure of funds by it.” 31 U.S.C. § 696. The Russell Amendment, however, did not preclude the Government from paying the expenses of purely advisory committees. The OLC concluded that the Russell Amendment was not intended to prevent constitutional or statutory officers from using funds to procure advice on matters within their jurisdictions, i.e. advisory committees, if the funds were otherwise available for that purpose. Advisory committees become agencies under the Russell Amendment only if the officer to whom they report vests an advisory committee with actual authority to take substantive action for the government. Thus, if an agency or instrumentality performs functions that are indeed authorized by statute, and the law or appropriation makes funds available for the support of such functions, the Russell Amendment does not propose additional specific authorization requirements merely because the entity has been in existence for more than one year. Office of Legal Counsel Opinions  
Applicability of FACA Applicability of the Federal Advisory Committee Act to Law Enforcement Coordinating Committees, 5 Op. O.L.C. 283 (1981). The Acting Director of the Executive Office for United States Attorneys requested advice about the Federal Advisory Act (“FACA”), 5 U.S.C. app. II, § § 1 – 15, et seq, for the United States Attorneys who are charged with establishing Law Enforcement Coordinating Committees (“LECCs”). “The central issue was whether the LECCs are advisory committees and thus subject to the FACA’s procedural requirements.” The Office of Legal Counsel (“OLC”) concluded, “So long as the actual operations of LECCs conform to the limitations stated in the Associated Attorney General’s memorandum providing instructions about their establishment and functions, we conclude that the FACA will not apply to them.” However, to the extent that a LECC performs advisory functions by giving advice and recommendations to federal officials, it would be subject to the FACA’s requirements when performing those functions. The OLC noted that section 3(2) of FACA broadly defines an advisory committee as “any committee, board, commission, council, conference, panel, task force, or other similar group, as well as any subgroup or subcommittee thereof, that is either established or utilized by a federal agency or the President in the interest of obtaining advice or recommendations.” The OLC stated, “The LECCs are clearly established as committees, for they are to have a definite membership, regular meetings, agendas, a subcommittee structure, and other attributes of formal committee organizations. Also, the FACA’s specific exemptions from coverage do not apply to the LECCs. Accordingly, the only basis for concluding that the LECCs are not advisory committees is that they may not be established or utilized by federal officials in the interest of obtaining advice in particular from the state and local officials who are to be members. In specific terms, the functions of the LECCs may not be advisory at all but rather may be oriented toward (1) the exchange of information and/or (2) the performance of operational responsibilities.” The OLC noted, “With respect to the LECCs, the Associate Attorney General’s memorandum states at several points that certain of a committee’s or a subcommittee’s function are to be limited to the exchange of information. So long as that is the case, the FACA will not apply with respect to those functions. If in practice the committee’s functions differ from those stipulated in the Associate Attorney General’s memorandum, the FACA’s applicability should be examined.” “In several places the Associate Attorney General’s memorandum provides that the functions of certain subcommittees involve the performance of operational responsibilities. These could include, for instance, making decisions about how to proceed in particular cases, of formulating operational procedures for handling a set of related cases or law enforcement problems. To the extent that the responsibilities of a subcommittee or a full committee are limited to such operational matters, the FACA would not apply.” Office of Legal Counsel Opinions 3(2);6(c);10(C)
Applicability of FACA Applicability of the Federal Advisory Committee Act to the Nat’l Endowment for the Humanities, 4 Op. O.L.C. (Vol. B) 743 (1980). The National Endowment for the Humanities’ (“NEH”) General Counsel requested an opinion concerning two issues: “first, whether the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § § 1 – 15, et seq., requires that the names of members of NEH advisory committees and their subgroups be made available to the public, and if so, at what time; and second, whether the meetings of such committees could, in appropriate circumstances, be closed to the public in order to protect the privacy interests of applicants for financial assistance.” “The NEH has two advisory committees. The first is the National Council on the Humanities, created pursuant to section 8 of the National Foundation on the Arts and Humanities, Pub. L. No. 89-209, 79 Stat. 845 (1965), as codified at 20 U.S.C. § 957. The National Council advises the chairman regarding the Endowment’s policies and procedures and regarding applications for financial assistance. The second advisory committee is the Humanities Panel, created by NEH and composed of hundreds of scholars and experts in various fields who meet in subgroups or panels to review and make recommendations regarding applications for financial assistance.” The Office of Legal Counsel (“OLC”) advised NEH’s General Counsel that “the FACA requires that the names of members of the Humanities Panel of the NEH be made available to the public by subgroup, but does not require that such disclosure occur until after the particular subgroup's work has been completed.” The OLC noted that section 3(2) of the FACA expressly defines an advisory committee to include not only any committee, board, commission, council, conference, panel, task force, or other similar group, but also “any subcommittee or other subgroup thereof . . .”, that otherwise meets the tests of an advisory body. “Accordingly, subgroups of the Humanities Panel are advisory committees in their own right.” “The OLC also noted that section 10(c) of the FACA, the only provision of the FACA that speaks specifically about identifying the members of advisory committees (aside from section 6(c) which requires the President annually to report to Congress on the activities and status of advisory committees) concerns the required contents of the minutes of advisory committee meetings, which are, of their very nature, only made available to the public, if at all, after the work of the committees has been completed.” The OLC also advised NEH’s General Counsel that “the privacy exemption to the open meeting requirement of the Government in the Sunshine Act, 5 U.S.C. § 552b(c)(6), made applicable to federal advisory committees by the 1976 amendments to FACA, may permit closing some portions of meetings of subgroups of the Humanities Panel at which individual grant applications are discussed; however, the NEH has the responsibility to determine in advance what portions of subgroup meetings will not fall within an exemption to FACA’s openness requirement, and to assure that those portions are closed to the public.” The OLC noted, “The privacy exemption to the open meeting requirement calls for an assessment of whether the topic of discussion is of a personal or private nature and, second, whether in the particular case the topic is so personal that its disclosure would be a clearly unwarranted invasion of an individual's privacy interest. The latter determination requires a weighing of the interests in privacy against the interests in disclosure.” See H.R. Rep. No. 880, Pt. I, 94th Cong., 2d Sess. 11 (1976). Office of Legal Counsel Opinions 3(2)
Applicability of FACA Applicability of the Federal Advisory Committee Act to the Native Hawaiians Study Commission, 6 Op. O.L.C. 39 (1982). The Chairman of the Native Hawaiians Study Commission (“Commission”) requested an opinion whether the Commission was subject to the requirements of the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § § 1 – 15 et seq., or the Government in the Sunshine Act, 5 U.S.C. § 552(b). The Office of Legal Counsel (“OLC”) concluded “that the Commission was established to advise Congress, not the President or agencies in the Executive Branch, and was thus not subject to the FACA.” The OLC noted that “the Commission could become subject to the FACA if it were utilized to advise the President or agencies.” “The FACA imposes certain requirements on advisory committees to the President or to federal agencies. The definition of an ‘advisory committee’ includes, in relevant part, any commission that is established by the President, an agency, or Congress in the interest of obtaining advice or recommendations for the President or one more agencies or officers of the Federal government.” 5 U.S.C. §3(2). The OLC stated, “The definition does not cover commissions that are established solely to advise Congress. Whether the Commission was established to advise the President or federal agencies or solely to advise Congress must be determined by reference to the Commission’s authorizing act – the Native Hawaiians Study Commission Act (“NHSCA”).” The OLC noted, “The text of the NHSCA does not indicate that Congress established the Commission to obtain advice or recommendations for the President or federal agencies. The Commission’s relationship with the President, however, is sufficiently ambiguous to require a review of the NHSCA’s legislative history.” “There is no indication whatever, in the text or in the legislative history, that the NHSCA established the Commission to advise federal agencies. The fact that the Commission sends a draft report to appropriate federal agencies for written comments suggests that it has the opposite relationship – that it is required to obtain the agencies’ advice, rather than to advise agencies.” The OLC stated, “The language of the NHSCA does not support the conclusion that Congress established the Commission to obtain advice or recommendations for the President. Moreover, the moderate open meeting provision and the manner of funding seem to suggest that the Commission was closely tied to Congress and intended to be subject to the FACA. These indications are not necessarily conclusive, however, because the President is to receive a copy of the Commission’s final report. Because this might indicate the existence of a reporting relationship with the President, we turn to a review of the NHSCA’s legislative history.” “Three aspects of the NHSCA’s legislative history strongly support the conclusion that Congress did not establish the Commission to advise the President. These include:: (1) comments by the sponsors of the NHSCA that the Commission was to advise Congress; (2) the existence of two predecessor bills seeking to establish an advisory commission to Congress; and (3) the circumstances in which a Senate committee first added to a predecessor bill the requirement that the President should receive a copy of the Commission’s report.” The OLC also concluded that “the Commission was not subject to the GSA because the Commission was not an administrative agency, since it was created to undertake studies and not to exercise independent authority.” “The Government in the Sunshine Act requires that certain meetings of agencies that fall within its coverage be open to public observation. The Government in the Sunshine Act applies, absent special exemptions, to any agency, as defined in section 552(e) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(e), headed by a collegial body composed of two or more individual members, a majority of whom are appointed by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency. 5 U.S.C. 552b(a)(1).” The OLC concluded that the Commission was not subject to the GSA for two reasons. “First, none of its members were appointed to the Commission with the advice and consent of the Senate. The NHSCA only provides that members be appointed by the President. Second, the Commission was not an agency as that term has been used under the FOIA, 5.U.S.C. § 552(e), whose definition the GSA expressly incorporates. The FOIA defines ‘agency’ as follows: ‘For purposes of this section, the term ‘agency’ as defined in section 551(1) of the Administrative Procedure Act, 5 U.S.C. § 551, includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. § 552(e).” Office of Legal Counsel Opinions 3(2)
Applicability of FACA Application of the Federal Advisory Committee Act to Board of Department of Justice Journal, 14 Op. O.L.C. 53 (1990). The Executive Assistant to the Attorney General requested an opinion whether an outside advisory or editorial board for a new publication of the U.S. Department of Justice (“Department”) would be subject to the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § § 1 – 15, et seq. The Office of Legal Counsel (“OLC”) concluded that the board would be subject to FACA if it deliberated as a body in order to formulate recommendations, but would not be the subject to FACA if each individual member received submissions to the journal and gave his own opinion about publication. The OLC stated that it believed “that the FACA would not reach an advisory board if the Department sought only the views of individuals rather than the views of the board as a whole.” The OLC noted that the term “‘advisory committee’ connotes a body that deliberates together to provide advice.” The OLC concluded “that FACA does not apply to a group which simply acts as a forum to collect individual views rather than to bring a collective judgment to bear.” The OLC stated that the “General Services Administration ‘s regulations confirm the commonsense notion of what differentiates a committee from a collection of individuals.” “The regulations state that FACA does not cover: Any meeting initiated by a Federal official with more than one individual for the purpose of obtaining the advice of individual attendees and not for the purpose of utilizing the group to obtain consensus advice or recommendations. However, agencies should be aware that such a group would be covered by the Act when an agency accepts the group’s deliberations as a source of consensus advice or recommendations . . .” 41 C.F.R. § 101-6.1004(i). The OLC concluded, “Although this provision is not entirely clear, it appears to mean that FACA does not cover a collection of individuals who do not perform a collegial and deliberative function and whose views are considered individually rather than as a part of a sense of the committee.” Further, the OLC noted, “The clearest example of such a collection of individuals would be a group of experts, each of whom reviews submissions in his own area of expertise. Nevertheless, even if each member of the editorial board reviews every article and sends his comments to the Department, the arrangement would still appear to fall outside FACA, because a collective judgment would not be sought. Indeed, since the regulation permits a meeting at which individual views are offered, it would, permit the solicitation of individual views of board members who are not at a meeting. The board members would merely be acting in the same way as individual contractors who offer consulting services to the government.” The OLC cautioned that “the regulation has not been directly tested in the courts.” Finally, the OLC concluded, “If the editorial or advisory board is set up as a vehicle for the presentation of individual views, it may be prudent to leave the board without any formal structure, such as offices or staff. If the editorial or advisory board is set up as a vehicle for the presentation of individual views, it may be prudent to leave the board without any formal structure, such as officers or staff.” Office of Legal Counsel Opinions 3(2)
Applicability of FACA Ass’n of American Physicians and Surgeons, Inc. et al. v. Clinton, 187 F.3d 655 (D.C. Cir. 1999). Appellants, First Lady Hillary Rodham Clinton, and officials of the Executive Branch of the U.S. Government, including presidential advisor Ira C. Magaziner, challenged the district court’s award of attorney fees to the appellees, Association of American Physicians and Surgeons, American Council for Health Care Reform and National Legal & Policy Center (collectively, “AAPS”). The appellate court stated that the district court “awarded fees under the common law on the ground that the government litigated in bad faith and under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, on the ground that the government’s litigating position was not substantially justified.” AAPS, 187 F.3d at 657. The appellate court reversed the attorney’s fee award, and held that the district court’s findings of bad faith were without clear and convincing evidentiary support, and remanded for further consideration. AAPS filed this action February 24, 1993, alleging that the government had violated the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. II, § §. 1 - 15, et seq., by not filing an advisory committee charter for the President’s Task Force on National Health Care Reform (“Task Force”). AAPS also claimed that the government violated FACA by denying access to meetings of both the Task Force and an interdepartmental working group overseen by Task Force member, Ira Magaziner. In opposition to AAPS’s motion for preliminary injunction, the government filed a declaration by Magaziner stating that only federal government employees serve as members of the interdepartmental working group. The working group included approximately 300 “full-time permanent employees, who work for the Executive office of the President, for federal agencies, for members of Congress, or for Senate or House committees,”and 40 “special government employees” who “have been employed by an agency or the Executive Office of the President for less than 130 days in a 365-day period, either with or without compensation.” AAPS, 187 F.3d 657.In addition, the declaration also stated that the working group had “retained a wide range of consultants, who attend working group meetings on an intermittent basis, either with or without compensation.” AAPS, 187 F.3d 657. On March 10, 1993, the district court granted AAPS’s preliminary injunction, and found that the Task Force was an advisory committee within the meaning of FACA. The court held that the Task Force did not come within FACA’s exemption for a “committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government,” 5 U.S.C. app. II, § 3(2)(iii), because First Lady Hillary Rodham Clinton, who chaired the Task Force, was not a federal employee. However, the court found that the working group was not a FACA committee because it reported to the Task Force, and did not directly advise the President. The Court of Appeals reversed and remanded. In regard to the Task Force’s FACA status, the court said “[t]he question whether the President’s spouse is ‘a full-time officer or employee’ of the government is close enough for us properly to construe FACA not to apply to the Task Force merely because Mrs. Clinton is a member.” AAPS v. Clinton, 997 F.2d 898, 910-11 (D.C. Cir. 1993). The court found that the record was insufficient to determine whether the working group constituted a FACA committee or whether all of its members were full-time Federal employees. On April 11, 1994, AAPS filed a motion for summary judgment with a list of persons who it claimed were members of the working group, but who did not satisfy the requirements of FACA’s federal employee exemption. The Government filed a cross-motion, and argued that the working group was not an advisory committee for purposes of FACA because it lacked “‘an organized structure, a fixed membership, and a specific purpose’” and it was not operated “with ‘formality.’” AAPS v. Clinton, 997 F.2d at 914. The government noted that it was not arguing that the working group should be exempted from FACA under the federal employee exemption, but that FACA was completely inapplicable because the working group lacked the requisite features for being considered an advisory committee. On May 16, 1994, AAPS moved to hold Magaziner in contempt for having made false and misleading statements in his Declaration, and for sanctions against the Government for “defending the case by asserting facts they knew not to be true” (namely “that only full-time employees of the federal government . . . were participants on the Task Force working groups.”). AAPS, 187 F.3d at 659. Finally in July, 1994, the Government made the then defunct working group’s documents available for inspection. The court then issued an order declaring the merits and the matter of civil contempt, moot. In 1997, the district court found the government’s conduct was sanctionable. The court awarded AAPS’ attorney’s fees and costs of $285,865 under both the common law’s exception to the “American rule” against attorney’s fees where the losing party has acted in ‘bad faith’, and under the Equal Access to Justice Act (“EAJA”). The EAJA provides for an award of attorney’s fees where a position taken by the United States was not substantially justified. 28 U.S.C. § 2412(d)(1)(A). The government challenged the fee award and the findings of bad faith. On appeal, the court reversed, and found an inadequate basis for the district court’s finding that the government acted in bad faith by not “timely advis[ing]” the court that “it was not making the ‘all-employee’argument attributed to the Government by the . . . plaintiffs” when the Government informed the court in 1994. AAPS, 187 F.3d at 661. The court reasoned that the Government was under no “clear” duty to disavow that it was not claiming the federal employee exemption for the working group. The Government’s silence “d[id] not amount to bad faith.” AAPS, 187 F.3d at 661. The appellate court found no bad faith in the Government’s failure “to correct or change” the Magaziner Declaration’s representation that all members of the working group were federal employees. AAPS, 187 F.3d at 661. It stated, “[g]iven that the Government did not press the federal employee exemption, the representation, if false, was not material and therefore cannot be characterized as made in bad faith.” AAPS, 187 F.3d at 661. “Further, this finding cannot stand because the district court’s subsidiary findings of bad faith in drafting the Magaziner Declaration, on which the court rested the finding, are not supported by clear and convincing evidence.” AAPS, 187 F.3d at 661. Thus, the court concluded that the attorney’s fee award could not be upheld insofar as it rested on bad faith, and remanded for further consideration. Case Law 3(2)
Applicability of FACA Ass’n of American Physicians and Surgeons, Inc. et al. v. Clinton, et al. 879 F.Supp. 106 (D.D.C. 1994). Plaintiff Association of American Physicians and Surgeons, Inc. (“AAPS”) brought this action against defendants, seeking to compel the production of certain documents in defendants’ possession as participants in an interdepartmental working group of the President’s Task Force on National Health Care Reform. Rather than continuing to withhold documents defendants had submitted for an in camera, ex parte review, all of the documents were made public. Subsequently, “defendants confirmed (without objection by plaintiffs) that the documents were available for public inspection at the National Archives, along with the computer disks that had not previously been made public.” AAPS, 879 F.Supp. at 107. “The only remaining issue raised in the district court’s Memorandum and Order of December 1, 1994, was whether any further search for additional documents should be required.” AAPS, 879 F.Supp. at 107. The district court concluded that the “defendants had met their burden of establishing that no further search was required.” AAPS, 879 F.Supp. at 107. “All working groups participants were advised, before the working group’s termination, that any documents they created or reviewed were White House records, and that they should be provided to the White House.” AAPS, 879 F.Supp. at 107. “Extensive follow-up efforts produced yet more documents, but plaintiffs have not cited a single instance to the court where any participant still has any White House records that have not now been made public.” AAPS, 879 F.Supp. at 107. “Plaintiffs were given an opportunity to take discovery before the court ruled on defendants’ motion to dismiss, and the court is now satisfied that defendants are legally entitled to dismissal based on the record before the court.” AAPS, 879 F.Supp. at 107. This district court dismissed this action as moot. The remaining question was whether defendant Ira Magaziner, Senior Advisor to the President for Policy Development, was in criminal contempt for perjury to the United States Attorney for the District of Columbia and to the Attorney General of the United States. “On March 3, 1993, Mr. Magaziner signed a declaration, under penalty of perjury, in which he stated that only federal government employees serve as members of the interdepartmental working group.” AAPS, 879 F.Supp. at 107. The court stated that Mr. Magaziner must be proven to have been intentionally untruthful at the time he signed the document before he can be found guilty of a criminal offense.” AAPS, 879 F.Supp. at 108. The court noted that criminal contempt must be based on “evidence of deliberate willful misrepresentations.” AAPS, 879 F.Supp. at 108. “Defendants urged the court to find that Mr. Magaziner had no such intent.” AAPS, 879 F.Supp. at 109. The court stated that it couldn’t do so at this time. The record was “insufficient as to what Mr. Magaziner knew and when he knew it.” AAPS, 879 F.Supp. at 109. Case Law  
  

Visitor     

 This site is brought to you by GSA and 80/20 Data Company 
  Support Email  Support Team Members

General Services Administration

Security and Privacy Notice