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.[1]

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.

## Contents

* 1 "fairly balanced" and no inappropriate influence
* 1.1 "fairly balanced"
* 2 Challenging FACA violations using the APA
* 3 Non-Government Employee Requirement
* 4 Not covered by FACA
* 5 Subcommittees
* 6 Tenth Circuit
* 7 References

## "fairly balanced" and no inappropriate influence[edit]

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

“  |  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:

“  |  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.

“  |  FACA requires that the membership of an advisory committee be "fairly balanced in terms of point of view represented and the functions to be performed by the advisory committee." Id. § 5(b)(2); see id. § 5(b)(3).  |  ”

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Nw. Ecosystem All. v. Office of the United States Trade Representative, NO. C99-1165R, 1999 U.S. Dist. LEXIS 21689, at *3 (W.D. Wash. Nov. 8, 1999)

The Fifth Circuit has held that the issue of "fairly balanced" is justiciable. Cargill, Inc. v. United States, 173 F.3d 323, 334-36 (5th Cir. 1999).

A federal court in the State of Washington found that a FACA committee was not fairly balanced, and ordered the committee to add an individual having a new interest:

“  |  The court finds that the forest product ISACs are not "fairly balanced" within the meaning of FACA, 5 U.S.C. app. 2 § 5(b)(2). The court, therefore, DENIES defendants' motion to dismiss [docket 11-1], GRANTS summary judgment in favor of plaintiffs, and GRANTS plaintiffs' motion for an injunction [docket 3-1], modified as follows: defendants shall make a good faith effort to expedite the appointment of at least one properly qualified environmental representative to ISAC-10 and at least one properly qualified environmental representative to ISAC-12 as soon as possible.  |  ”

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Nw. Ecosystem All. v. Office of the United States Trade Representative, NO. C99-1165R, 1999 U.S. Dist. LEXIS 21689, at *29-30 (W.D. Wash. Nov. 8, 1999).

### "fairly balanced"[edit]

Twenty (20) federal court decisions discuss the "fairly balanced" requirement, a prominent one being a lawsuit brought by the NAACP that blocked Attorney General Bill Bar from releasing conclusions by a commission created in January 2020 pursuant to Exec. Order No. 13,896, 84 Fed. Reg. 58,595 (Oct. 28, 2019) concerning law enforcement. NAACP Legal Def. & Educ. Fund, Inc. v. Barr, 496 F. Supp. 3d 116, 121 (D.D.C. 2020). The district court of D.C. held that:

“  |  FACA requires an advisory committee's membership 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. 2 § 5(b)(2). In selecting committee members, the appointing authority should "consider a cross-section of those directly affected, interested, and qualified, as appropriate to the nature and functions of the advisory committee." 41 C.F.R. § 102-3.60(b)(3). Among other factors, the appointing authority should consider the advisory committee's mission, the ethnic, social, and economic impact of the committee's recommendations, the "types of specific perspectives required," and the "need to obtain divergent points of view on the issues before the advisory committee." 41 C.F.R. § 102-3, subpt. B, app. A.  |  ”

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NAACP Legal Def. & Educ. Fund, Inc. v. Barr, 496 F. Supp. 3d 116, 143-44 (D.D.C. 2020).

## Challenging FACA violations using the APA[edit]

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

“  |  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[edit]

FACA defines an advisory committee as follows:

“  |  (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.[2]

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## Not covered by FACA[edit]

41 C.F.R. § 102-3.40. What types of committees or groups are not covered by the Act and this part?

The following are examples of committees or groups that are not covered by the Act or this Federal Advisory Committee Management part:

(a) Committees created by the National Academy of Sciences (NAS) or the National Academy of Public Administration (NAPA). Any committee created by NAS or NAPA in accordance with section 15 of the Act, except as otherwise covered by subpart E of this part;

(b) Advisory committees of the Central Intelligence Agency and the Federal Reserve System. Any advisory committee established or utilized by the Central Intelligence Agency or the Federal Reserve System;

(c) Committees exempted by statute. Any committee specifically exempted from the Act by law;

(d) Committees not actually managed or controlled by the executive branch. Any committee or group created by non-Federal entities (such as a contractor or private organization), provided that these committees or groups are not actually managed or controlled by the executive branch;

(e) Groups assembled to provide individual advice. Any group that meets with a Federal official(s), including a public meeting, where advice is sought from the attendees on an individual basis and not from the group as a whole;

(f) Groups assembled to exchange facts or information. Any group that meets with a Federal official(s) for the purpose of exchanging facts or information;

(g) Intergovernmental committees. Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government and elected officers of State, local and tribal governments (or their designated employees with authority to act on their behalf), acting in their official capacities. However, the purpose of such a committee must be solely to exchange views, information, or advice relating to the management or implementation of Federal programs established pursuant to statute, that explicitly or inherently share intergovernmental responsibilities or administration (see guidelines issued by the Office of Management and Budget (OMB) on section 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), OMB Memorandum M-95-20, dated September 21, 1995, available from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW., Washington, DC 20405-0002);

(h) Intragovernmental committees. Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government;

(i) Local civic groups. Any local civic group whose primary function is that of rendering a public service with respect to a Federal program;

(j) Groups established to advise State or local officials. Any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies; and

(k) Operational committees. Any committee established to perform primarily operational as opposed to advisory functions. Operational functions are those specifically authorized by statute or Presidential directive, such as making or implementing Government decisions or policy. A committee designated operational may be covered by the Act if it becomes primarily advisory in nature. It is the responsibility of the administering agency to determine whether a committee is primarily operational. If so, it does not fall under the requirements of the Act and this part.

41 C.F.R. § 102-3.40.

## Subcommittees[edit]

> 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.

> 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.

> 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.

> 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.

> 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.

> 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.

Elec. Privacy Info. Ctr. v. Drone Advisory Comm., 452 U.S. App. D.C. 106, 112-13, 995 F.3d 993, 999 (2021).

> For that reason, in Nat'l Anti-Hunger Coal. v. Exec. Comm. of President's Priv. Sector Surv. on Cost Control, task forces subordinate to two advisory committees that were "intimately involved in the gathering of information about federal programs and the formulation of possible recommendations for consideration" were nevertheless outside the scope of FACA because they did "not provide advice directly to the President or any agency, but rather are utilized by and provide advice to only the Executive Committee, which then provides advice to the President or agency." 557 F. Supp. 524, 529 (D.D.C. 1983), aff'd, 711 F.2d 1071, 229 U.S. App. D.C. 143 (D.C. Cir. 1983); see also Elec. Priv. Info. Ctr. v. Drone Advisory Comm., 369 F. Supp. 3d 27, 46 (D.D.C. 2019), aff'd, 995 F.3d 993, 452 U.S. App. D.C. 106 (D.C. Cir. 2021) (holding that subcommittee task groups that "did not provide advice or recommendations directly to the [agency]" were not advisory committees for FACA purposes). Here, however, the E-Bike Group consisted partially of federal officials and agency members themselves and was not subordinate to any other formalized decision-making body. It does not matter what "level" of policymakers participated in the E-bike group, because the E-bike Group was the direct "point of contact between the public and the government." Ass'n of Am. Physicians & Surgeons, Inc., 997 F.2d at 913. Considering all these elements together, the Court believes that the E-bike Group was an advisory committee within the meaning of FACA. That does not mean, however, that Plaintiffs are entitled to the relief that they seek.

Pub. Emps. for Env't Responsibility v. Nat'l Park Serv., Civil Action No. 19-3629 (RC), 2022 U.S. Dist. LEXIS 93204, at *51-52 (D.D.C. May 24, 2022).

## Tenth Circuit[edit]

There is no private cause of action for FACA within the Tenth Circuit:

“  |  R-CALF's reliance on Association of American Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 302 U.S. App. D.C. 208 (D.C. Cir. 1993), for the proposition that it can be afforded discovery is unpersuasive. At best, the Clinton case appears to assume that FACA provides a private cause of action. More importantly, though, Clinton precedes Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) wherein the Supreme Court provided clear direction for courts on whether Congress created a private remedy. Id. at 286 (the "judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.... Statutory intent on this latter point is determinative"). The Tenth Circuit's position on this point is clear - FACA did not create a private cause of action. Thus, the out-of-circuit and dated Clinton case provides no basis for a remedy outside the APA or for discovery.  |  ”

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Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. USDA, No. 19-CV-205-F, 2020 U.S. Dist. LEXIS 259057, at *8-9 (D. Wyo. Nov. 16, 2020).

## References[edit]

1. ↑ https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-act-faca-management-overview
2. ↑ https://www.law.cornell.edu/uscode/text/5a/compiledact-92-463/section-3