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LOMBARDO v. HANDLER

July 28, 1975

Louis LOMBARDO et al., Plaintiffs,
v.
Philip B. HANDLER et al., Defendants



The opinion of the court was delivered by: SIRICA

 SIRICA, District Judge.

 This matter comes before the Court on the parties' cross-motions for summary judgment. The motions were argued on April 21, 1975, at which time the Court took the matter under advisement.

 The plaintiffs in this action are the Public Interest Campaign, a non-profit educational and charitable association with a special interest in the subject of air pollution, and the President of the Campaign, Louis Lombardo. They brought this suit to compel the defendants, the National Academy of Sciences, its Committee on Motor Vehicle Emissions (hereinafter C.M.V.E.), and several of the organizations' officials, to comply with the Federal Advisory Committee Act (hereinafter F.A.C.A.), 5 U.S.C. App. I (1975), and the Freedom of Information Act (hereinafter F.O.I.A.), 5 U.S.C. § 552 (1974). Plaintiffs contend that the closed-door deliberations of the Academy's C.M.V.E. are being conducted in violation of the law. On several occasions plaintiff Lombardo has sought unsuccessfully to gain access to the deliberations of the C.M.V.E. and its working papers. The defendants have taken the position that they are not subject to the Freedom of Information Act or the Advisory Committee Act and, thus, they claim the right to keep the plaintiffs from attending their meetings, etc. The plaintiffs squarely challenge the defendants' claimed exclusion from the coverage of the statutes and ask the Court to declare that the Academy is an "agency" as that term is used in the statutes, and that the C.M.V.E. is an "advisory committee" within the meaning of the Advisory Committee Act. The parties concede and the Court agrees that there is no genuine issue of material fact to be litigated in this matter.

 I. IS THE ACADEMY AN "AGENCY" UNDER THE F.A.C.A.?

 The plaintiffs' principal assertion is that the Academy is an "agency" as that term is used in the F.A.C.A. *fn1" and that the C.M.V.E. is an "advisory committee" of that "agency." The issue turns on whether the Academy is an "agency" within the meaning of section 3(3) of the F.A.C.A. That section provides that "agency" shall have the same meaning as under Section 2(a) of the Administrative Procedure Act (hereinafter A.P.A.), 5 U.S.C. § 551(1). There "agency" is defined (with exceptions not here relevant) to mean: "each authority of the Government of the United States, whether or not it is within or subject to review by another agency."

 The plaintiffs have emphasized the numerous government connections of the Academy in arguing that it comes within the scope of that definition. Indicia of the "agency" status suggested by the plaintiffs include the fact that the Academy was established by Act of Congress. *fn2" It reports to Congress. *fn3" It is obligated to perform investigations, etc. for the departments of the federal government when so requested. *fn4" In 1914 Congress provided that "The Congress may any time limit the amount of real estate which may be acquired and the length of time the same may be held by said National Academy of Sciences." *fn5" The principal operating arm of the Academy, the National Research Council, was the subject of two Executive Orders; Executive Order 2859 of May 11, 1918, which requested the Academy to perpetuate the Council, and Executive Order 10,668 of May 10, 1956, 3 C.F.R. 1954-1958 Comp., p. 323, in which the President apparently ordered certain general functions for the Council and decreed that government representatives on the Council should be appointed by department and agency heads. *fn6" The Academy is mentioned in several Acts of Congress which give some legal significance to reports or recommendations of the Academy. *fn7" Of particular relevance to this action is section 5 of the Clean Air Act Amendments of 1970 which requires the Administrator of the Environmental Protection Agency (E.P.A.) to undertake to enter into appropriate arrangements with the Academy to conduct studies regarding the feasibility of meeting certain emission standards, *fn8" and which provides that the 1975 auto emission standards cannot be suspended by the Administrator unless, inter alia, the Academy finds that it is not technically feasible to meet them. *fn9" And a very substantial portion of the Academy's income is derived from the federal government. *fn10"

 The defendants respond with their own list of characteristics which distinguish the Academy from federal agencies. It is noted that prior to the Act of May 5, 1870, (Ch. 80 § 3, 16 Stat. 101 et seq.) Congress exercised exclusive authorization over all acts of incorporation in the District of Columbia. The Academy possesses none of the characteristic functions of an "agency"; i.e., rulemaking, adjudication, licensing, etc. The Academy does not receive (indeed is prohibited from receiving) government appropriations. *fn11" Rather, its relations with the government are of a contractual nature. *fn12" The Academy has no vested regulatory authority, has no power to implement its own advice, and lacks authority to impose any sanctions. The Academy also performs many functions for non-federal institutions, contracting with private foundations and with state and local governments to perform various studies, etc. It is not subject to Civil Service employment controls, O.M.B. management controls, or G.A.O. accounting controls. It has never had free mailing privileges and does not have the right to publish materials in the Federal Register. In past years the Academy has been regarded by various cabinet officers and government officials as a private corporation, and not a part of the government. *fn13"

 Whether, on balance, these characteristics give the Academy the status of an "agency" depends on the statutory description of "agency." The definition of "agency" given in the A.P.A. has been criticized as being "not very satisfactory." *fn14" However, reference to the legislative history has shown that:

 
The theme runs through the legislative history of section 2 is that an administrative agency is a part of government which is "generally independent in the exercise of [its] functions" and which "by law has authority to take final and binding action" affecting the rights and obligations of individuals, particularly by the characteristic procedures of rule-making and adjudication. Freedman, Administrative Procedure and the Control of Foreign Direct Investment 119 U.Pa.L.Rev. 1, 9 (1970). *fn15"

 This definition has met with notable acceptance in the Courts. See, e.g., Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1073 (1971); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 157 U.S.App.D.C. 121, 482 F.2d 710, 714, 715 (1973) (both cases emphasizing the "substantial independent authority" of the agency involved). Nevertheless, as recently noted in Washington Research Project, Inc. v. Department of H.E.W., 164 U.S. App. D.C. 169, 504 F.2d 238 (D.C.Cir. 1974):

 
Recent cases have made it clear that any general definition [of agency] can be of only limited utility . . . . The unavoidable fact is that each new arrangement must be examined anew and in its own context. Id. at 245, 246.

 The Court of Appeals also noted in that case that:

 
Employing consultants to improve the quality of the work that is done cannot elevate the consultants to the status of the agency for which they work unless they become the functional equivalent of the agency, making its decisions for it. Id. at 247, 248.

 Starting at that point, this Court notes that the Academy cannot be said to be making decisions for the E.P.A. with regard to the Clean Air Act. The E.P.A. has clearly felt free to make its own decisions irrespective of the Academy's advice. See Int'l Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 624-628, 649 (1973). Nor can it be said that the Academy exercises substantial independent governmental authority. Indeed, the authority which the Academy does possess appears to rest on a respect for the qualifications of the members of the Academy rather than on any delegation of federal authority. The shadow of federal authority which may appear to cover the Academy while it works on government contracts cannot be said to be "independent authority" in any event. Rather, the Academy appears to rely on cooperating federal agencies for authority and assistance, as in the publication of notices by the Federal Register. Since the Federal Register only publishes for Federal agencies, the E.P.A. has sponsored the publication of notices for the Academy regarding the Clean Air Act Amendment study.

 II. IS THE C.M.V.E. AN "ADVISORY COMMITTEE"?

 The plaintiffs have alternatively argued that the C.M.V.E. is an "advisory committee" under one of three other possible applications of the F.A.C.A. The term "advisory committee" is defined to mean:

 
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is --
 
(A) established by statute or reorganization plan, 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 . . . . 5 U.S.C. App. I, § 3 (2).

 Plaintiffs argue that (1) the C.M.V.E. is a committee "established by statute," or (2) "established . . . by one or more agencies" (to wit, the E.P.A.), or (3) "utilized by ...


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