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| | 41 C.F.R. § 102-3.40. | | 41 C.F.R. § 102-3.40. |
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| | + | == Subcommittees == |
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| | + | <blockquote>Section 3(2) reinforces this point in its treatment of subcommittees. It provides that a "subcommittee" is a covered advisory committee only if it independently satisfies the statutory definition—the subcommittee itself must be established or utilized by an agency to obtain advice for the agency. Section 3(2) does not provide that if a group is a covered advisory committee, then so too are its subgroups. Thus, we have long recognized that the question whether a group meets the definition of an "advisory committee" is distinct from the question whether any of its subgroups meets the definition. Metcalf v. Nat'l Petroleum Council, 553 F.2d 176, 177 n.13, 180 U.S. App. D.C. 31 (D.C. Cir. 1977). And given the textual and structural features of FACA discussed above, FACA cannot cover a subcommittee merely because it advises a parent committee that in turn advises an agency. That would convert any subcommittee into an advisory committee and collapse the distinction between reporting to an agency and merely reporting to a parent committee. |
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| | + | GSA regulations confirm that FACA coverage turns on whether a subcommittee directly advises the agency. One regulation provides: "In general, the requirements of the Act . . . do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency." 41 C.F.R. § 102-3.35(a). But "[i]f a subcommittee makes recommendations directly to a Federal officer or agency, or if its recommendations will be adopted by the parent advisory committee without further deliberations by the parent advisory committee, then the subcommittee's meetings must be conducted in accordance with all openness requirements" of FACA. Id. § 102-3.145. Under Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944), these regulations constitute "a body of experience and informed judgment to which courts and litigants may properly resort for guidance," id. at 140. |
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| | + | Our precedent confirms that FACA does not apply to subgroups that merely provide advice or recommendations independently evaluated by a parent advisory committee. In National Anti-Hunger Coalition v. Executive Committee of the President's Private Sector Survey on Cost Control, 711 F.2d 1071, 229 U.S. App. D.C. 143 (D.C. Cir. 1983), we held that task forces advising an advisory committee, but "not providing advice directly to the President or any agency," were not covered advisory committees. Id. at 1075 (cleaned up). Then, in Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 302 U.S. App. D.C. 208 (D.C. Cir. 1993) (AAPS), we confirmed that FACA applies to the group that "gives the advice to the government," but not to the "subordinate advisers or consultants who are presumably under the control of the superior groups." Id. at 913. Both decisions are instructive. |
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| | + | In Anti-Hunger Coalition, the plaintiffs sought records from three task forces reporting to two presidential advisory committees. 711 F.2d at 1072. The district court held that FACA does not apply to task forces or other subgroups that "do not directly advise the President or any federal agency," even if they "provide information and recommendations" to advisory committees. Nat'l Anti-Hunger Coal. v. Exec. Comm. of the President's Priv. Sector Survey on Cost Control, 557 F. Supp. 524, 528-29 (D.D.C. 1983). The court described such subgroups as merely "performing staff functions" for the parent committee. Id. at 529. On summary judgment, the court held that because the task forces at issue did not directly advise the President or any agency, they were not covered advisory committees. Id. at 529-30. In affirming, this Court explicitly "approve[d] the reasoning under which the District Court rejected the appellants' contentions"—including the contention that the "task forces [were] themselves advisory committees." 711 F.2d at 1072. We noted that a task force or other subgroup might itself be an advisory committee only if it transmitted material "directly to federal decision makers" or if the parent committee approved its recommendations "with little or no independent consideration." Id. at 1075.1 |
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| | + | In AAPS, we continued to distinguish between advisory committees and their subordinate groups. AAPS involved a "working group" that reported and gave advice to a "Task Force" on healthcare reform. 997 F.2d at 901. Applying Anti-Hunger Coalition, the district court held that because the Task Force was an advisory committee, the working group was not. See id. at 913. We held that the Task Force consisted entirely of government officials and thus was exempt from FACA. Id. at 902-11. As a result, we further held that the working group was an advisory committee because it was "the point of contact between the public and the government." Id. at 913. We contrasted the working group in AAPS with the task forces in Anti-Hunger Coalition, which reported to parent advisory committees "covered by FACA." Id. |
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| | + | EPIC highlights our observation in AAPS that "the President can establish an advisory group that he does not meet with face-to-face." 997 F.2d at 912. But we said that to reinforce the point that FACA coverage turns on which entity is the "point of contact" between the public and the government. See id. at 912-13. Because the working group in AAPS provided advice directly to "one or more agencies or officers of the Federal Government," 5 U.S.C. app. 2 § 3(2), even if not directly to the President, it qualified as an "advisory committee" under FACA.</blockquote> |
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| | + | ''Elec. Privacy Info. Ctr. v. Drone Advisory Comm.'', 452 U.S. App. D.C. 106, 112-13, 995 F.3d 993, 999 (2021) |
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| | == References == | | == References == |