FACA

The Federal Advisory Committee Act (FACA) is a federal law requiring a high degree of transparency for governmental committees that include non-government workers, if they advise agencies or the president.

Enacted in 1972, FACA supposedly ensures that advice by such committees be objective and transparent to the public. FACA created the Committee Management Secretariat to oversee compliance, and in 1976, Executive Order 12024 delegated from the president to the administrator of GSA all presidential responsibilities for FACA implementation.

In addition to the requirement of prior notice of public meetings, FACA further mandates that every FACA committee has:

"(1) contain a clearly defined purpose for the advisory committee," 5 U.S.C. app. § 5(b)(1);
"(2) require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee," 5 U.S.C. app. § 5(b)(2);
"(3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment," 5 U.S.C. app. § 5(b)(3);
"(4) contain provisions dealing with authorization of appropriations, the date for submission of reports (if any), the duration of the advisory committee, and the publication of reports and other materials, to the extent that the standing committee determines the provisions of section 10 of this Act to be inadequate," 5 U.S.C. app. § 5(b)(4); and
"(5) contain provisions which will assure that the advisory committee will have adequate staff (either supplied by an agency or employed by it), will be provided adequate quarters, and will have funds available to meet its other necessary expenses," 5 U.S.C. app. § 5(b)(5).

A total of 308 reported decisions -- 300 of which are in federal rather than state court -- discussed FACA as of May 20, 2022. Only two U.S. Supreme Court decisions have addressed FACA: Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989) (FACA not apply to ABA committee advising on nominations by the president to the federal judiciary) and Cheney v. United States Dist. Court, 542 U.S. 367, 385 (2004) (even if "FACA's statutory objectives would be to some extent frustrated, it does not follow that a court's Article III authority or Congress' central Article I powers would be impaired"). A total of 73 of the FACA decisions have been by a federal court of appeals, 46 of which have been by the D.C. Circuit.

Fair balance and no inappropriate influence

Balance is a FACA requirement, in addition to transparency requirements of open meetings and published minutes:

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FACA requires (among other things) that "the membership of the [ITACs] ... be fairly balanced in terms of the points of view represented and the functions to be performed[.]" 5 U.S.C. App. 1 § 5(b)(2) (emphasis added). FACA does not define what constitutes a "fairly balanced" committee -- in terms of points of view represented or functionality -- or how that balance is to be determined. FACA makes clear that "[t]o the extent they are applicable, the guidelines set out in subsection (b) of this section shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee." 5 U.S.C. App. 1 § 5(c) (emphasis added).

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Ctr. for Policy Analysis on Trade & Health v. Office of the United States Trade Representative, 540 F.3d 940, 943 (9th Cir. 2008).

"FACA clearly requires agency heads at least to consider whether new restraints on committee membership might inappropriately enhance special interest influence and to eschew such restraints when they do so." Union of Concerned Scientists v. Wheeler, 954 F.3d 11, 19 (1st Cir. 2020). However, FACA does not establish a private cause of action:

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FACA clearly requires agency heads at least to consider whether new restraints on committee membership might inappropriately enhance special interest influence and to eschew such restraints when they do so.

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Union of Concerned Scientists v. Wheeler, 954 F.3d 11, 19 (1st Cir. 2020).

In that First Circuit decision, Appellants asserted that an EPA "directive violates FACA's fair balance provision (Count III); the directive violates FACA's inappropriate influence provision (Count IV); and the EPA offered no rational explanation for adopting the directive, especially given that it changed prior policy (Count I)." Id. at 17.

Challenging FACA violations using the APA

The Administrative Procedure Act (APA) can be invoked to challenge FACA violations, as explained by the federal District Court for the District of Columbia:

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Thus, the question before this Court is whether collective decisions by such a group, including several agency heads, to hold meetings that allegedly violated the FACA requirements and to establish and control Task Force Sub-Groups, can be considered first, agency action, and second, final agency action pursuant to the APA. Defendants argue, "in the context of advisory committees, the agency that charters a committee and to which a committee reports can engage in final agency action, but individual members of an advisory committee cannot." Defs.' Reply of 4/26/02 at 12. Defendants' primary justification for why the actions of the agency heads cannot be considered agency action is that these individuals acted only as participants in a policy-making group, and were not making decisions on behalf of their agencies. According to § 10 of the APA, 5 U.S.C. § 701(b)(2), "agency action" has the meaning given to it by 5 U.S.C. § 551. That definition of "'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). That section further defines "order" as "the whole or a part of a final disposition ? of an agency in a matter other than rule making…." 5 U.S.C. § 551(6). According to the legislative history of the APA: The term 'agency action' brings together previously defined terms in order to simplify the language of the judicial-review provisions of section 10 and to assure the complete coverage of every form of agency power, proceeding, action, or inaction. In that respect the term includes the supporting procedures, findings, conclusions, or statements or reasons or basis for the action or inaction." S. Doc. No. 248, 79th Cong., 2d Sess., 255 (1946). As the D.C. Circuit has explained, "the Act defines agency action as 'the whole or a part of an agency rule, order, license, sanction, relief, of the equivalent or denial thereof, or failure to act.' …. Id. § 551(13). These categories are imprecise, and courts have made the threshold determination of reviewable agency action on a case-by-case basis." Industrial Safety Equipment v. EPA, 267 U.S. App. D.C. 112, 837 F.2d 1115, 1118 (D.C. Cir. 1988). The type of actions and inaction challenged here, creating sub-groups of the Task Force, holding meetings, refusing to disclose documents, failure to comply with FACA's other procedural requirements, certainly fall within the broad category of "agency power" Congress intended to include in this definition of agency action. S. Doc. No. 248, 79th Cong., 2d Sess., 255 (1946) ("to assure the complete coverage of every form of agency power, proceeding, action, or inaction."). The government can not seriously challenge the type of action taken here as not the type of action covered by this definition. Whether that action can be ascribed to an agency, and whether that action is sufficiently final, are two more difficult questions.

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Judicial Watch v. Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 37-38 (D.D.C. 2002).

In other words, a plaintiff can allege that a decision "to create and supervise Task Force Sub-Groups, to hold meetings closed to the public and without complying with the various procedural requirements of FACA" is a final agency action that can be challenged under the Administrative Procedure Act (APA). Id..' at 40.

Non-Government Employee Requirement

FACA defines an advisory committee as follows:

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(2)The term “advisory committee” means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as “committee”), which is— (A)established by statute or reorganization plan, or (B)established or utilized by the President, or (C)established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government, and (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration.

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