In light of the legislative history, it seems clear that AASHTO has been "utilized" by the defendants within the meaning of that term as employed in § 3(2) of the Act. The government went directly to AASHTO for specific advice on pending draft regulations. This is not a case in which the government merely provided a "sounding board" for the generalized views of an "amorphous, ad hoc group." Nader v. Baroody, 396 F. Supp. 1231, 1234 & 1233. Instead, as the government readily admits, it went directly to AASHTO, among other groups, for specific advice on pending draft regulations. In doing so, the government employed AASHTO much as advisory committees are frequently and traditionally employed. See Food Chemical News, Inc., v. Davis, 378 F. Supp. 1048 (D.D.C. 1974); Consumers Union v. HEW, 409 F. Supp. 473, (D.D.C. Mar. 12, 1976), 104 Daily Wash. Law Rep. 629, 632 (Apr. 15, 1976).
Thus, AASHTO falls within the definition of "advisory committee" found in the Advisory Committee Act. But several provisions limit the applicability of the Act. In § 3(2)(i), the Advisory Commission on Intergovernmental Relations is specifically excluded from the Act. In addition, § 4(c) provides that the Act shall not "be construed to apply to any . . . State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies." Defendants contend that each of these provisions operates to exclude AASHTO from the Act.
The first contention is quickly dismissed. The Advisory Commission on Intergovernmental Relations (ACIR) was created pursuant to 42 U.S.C. § 4271 et seq., and serves as a vehicle for intergovernmental consultations between federal, state and local governments on programs requiring intergovernmental cooperation. Under the Intergovernmental Cooperation Act of 1968, ACIR is given specific responsibilities with respect to federal grant-in-aid programs. 42 U.S.C. § 4243. The Intergovernmental Cooperation Act also provides for comments by state and local agencies on proposed federal regulations and other actions which have a significant effect on state and local governments. E.g., 42 U.S.C. § 4231(d). This purpose of the Act is implemented through OMB Circular No. A-85 (Jan. 20, 1971). Defendants in this case maintain that their consultations with AASHTO are consistent with and merely supplemental to the Intergovernmental Cooperation Act and OMB Circular No. A-85, and plaintiffs do not dispute the point. Defendants also maintain, however, that the "consultations between FHWA and AASHTO share the same unique characteristics of ACIR consultations in that they are consultations between governmental bodies at different levels; thus, these consultations should be exempt from FACA requirements." Defendants' memorandum of August 4, 1975, at 23. In this latter contention, defendants perform a leap of logic unauthorized by the Advisory Committee Act, for the Act merely excludes ACIR from its terms and does not provide a broad exclusion for all "consultations between governmental bodies at different levels." Moreover, the legislative history of the Advisory Committee Act supports the proposition that the ACIR exclusion was meant to be limited to that commission because of its "unique character." H.R. Rep. No. 92-1027, 2 U.S. Code Cong. and Admin. News at 3494 (1972). Therefore, the ACIR exclusion is unavailable to defendants to shield AASHTO from the Advisory Committee Act's requirements.
It also seems clear that AASHTO cannot benefit from § 4(c) of the Advisory Committee Act, which warns that the Act was not meant to apply to state or local committees established to advise state or local governments. At the outset, it is questionable as to whether AASHTO is a state or local committee. As noted in part I, supra, AASHTO is a nationwide association consisting of representatives of state highway and transportation departments and federal officials from the Department of Transportation. In fact, the Secretary of Transportation is a member ex officio of AASHTO's executive committee. See Art. II and III, AASHTO Constitution. But even assuming arguendo that AASHTO is a state committee, it did not, at the meetings at issue in this case, advise state or local officials or agencies. Rather, it was called upon by the federal government to advise in the formulation of regulations implementing 23 U.S.C. § 117. Nor can it be maintained that in advising the federal government AASHTO made a sharp departure from its normal activities. The organization's Constitution, the exhibits in this case, and the statements and admissions of the parties all make it clear that a significant part of AASHTO's raison d'etre is to offer advice, often solicited, to the federal government. No doubt, AASHTO also serves to advise state governments, and by the terms of the Advisory Committee Act itself such consultations are not affected by the Act. But when AASHTO acts in its capacity as solicited advisor to the federal government, the government must treat AASHTO as an advisory committee and comply with all of the requirements of the Advisory Committee Act.
The defendants argue that to treat AASHTO, an organization of government officials, as an advisory committee does not serve the purpose of the Act; for defendants contend, the Advisory Committee Act was designed to bring to the light of day consultations between representatives of private interests and the federal government, not discussions between fellow public-servants. Plaintiff replies that as representatives of the recipients of grants under the federal-aid highway program, AASHTO members speak for "special interests" as much as members of more traditional advisory committees. The truth lies somewhere between the parties' positions. AASHTO is made up of public servants. But those state employees also represent the "regulated" in the federal-aid highway program before the "regulators," the federal government. See Moss v. CAB, 430 F.2d 891, 893 (D.C. Cir. 1970). Absent a specific statutory provision excluding committees consisting of state or local officials from the operation of the Advisory Committee Act,
this Court must find that, in the present circumstances, AASHTO falls within the Act's ambit.
Plaintiffs are thus entitled to summary judgment on their Advisory Committee Act claim. But the additional question arises as to what relief should be afforded. Of course, the Court should and will issue an order setting forth the government's responsibilities under the Act with respect to AASHTO. But plaintiffs request, additionally, that the CA regulations be overturned because they were promulgated in part on the basis of advice received as a result of unlawful contacts with AASHTO. Plaintiffs ask also that the government's approval of Georgia's CA plan under the tainted regulations be set aside. The Court declines to provide such relief.
As to the regulations, the Court notes that while this case has been pending, revised CA regulations were published in draft form and public comment was invited. 41 Fed. Reg. 6914 (Feb. 13, 1976). The revised regulations were given an effective date of March 15, 1976, on an interim basis (in order to recognize "the temporary status of these provisions in light of ongoing Congressional activity in this area." Id.). In light of the fact that the original regulations are no longer in effect and that the present regulations, while similar in a number of respects to the original version, are also envisioned as temporary, it would make little sense to overturn the original regulations at this point.
As to the acceptance of Georgia's certification pursuant to the original tainted regulations, the Court makes several observations. First, it is not at all clear to the Court that the "taint" stemming from unlawful advisory committee meetings extends through the subsequently-adopted regulations to the approval of a state plan under those regulations. Plaintiff has not addressed this issue, despite the fact that, in claiming that agency action should be set aside for procedural irregularity under 5 U.S.C. § 706(2)(D), it is plaintiffs' burden to show that prejudice has resulted. E.g., NLRB v. Seine and Line Fishermen's Union, 374 F.2d 974, 981 (9th Cir. 1967). Second, the court notes that plaintiff CFAS was able, albeit through its own initiative, to comment on the Georgia CA plan while it was pending before the agency. Finally, as discussed in part IV, infra, plaintiffs are entitled to substantive judicial review in this Court of defendants' acceptance of Georgia's certification. In light of all of these factors, the Court does not deem it appropriate to invalidate Georgia's Certification Acceptance.
V. PLAINTIFFS ARE ENTITLED TO JUDICIAL REVIEW OF DEFENDANTS' DECISION TO APPROVE THE GEORGIA CA PLAN.
In Count IV of their complaint, plaintiffs seek judicial review, under the Administrative Procedure Act, 5 U.S.C. § 702, of the defendants' decision to approve Georgia's certification. Plaintiffs claim that the approval was procedurally deficient because the FHWA Administrator, defendant Tiemann, did not make a formal finding, as required by 23 U.S.C. § 117, that Georgia has safety standards at least as stringent as federal requirements and that its highway projects will be carried out in accordance with those standards. Plaintiffs also claim that defendants' decision to approve Georgia's certification was, on the merits, a clear error of judgment. Defendants have moved to dismiss Count IV on the ground that the agency action in question, approval of a state's certification plan under 23 U.S.C. § 117, "is committed to agency discretion by law," 5 U.S.C. § 701(a)(2), and therefore unreviewable.
The Supreme Court has recently reiterated that the "agency discretion" exception to judicial review is "very narrow" and is "applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). With that standard in mind, it is necessary to examine the statute in question, 23 U.S.C. § 117, to determine if it commits agency action to the agency's discretion.
The statute indicates that the Secretary "may" discharge his responsibilities under the federal-aid highway program by accepting a state's certification. To that extent, it appears to leave to the Secretary's discretion the initial decision of whether to employ the procedure in a given situation. But once he decides to employ the CA procedure, he has a mandatory duty under the act to find, before he approves a state certification, that the state in question will carry out its projects in accordance with state safety standards at least as stringent as federal standards.
Thus, while his discretionary decision not to employ CA is unreviewable, his decision to approve a state's certification is dependent upon mandatory findings and is therefore subject to judicial review. See City of Chicago v. United States, 396 U.S. 162, 24 L. Ed. 2d 340, 90 S. Ct. 309 (1969); Ferry v. Udall, 336 F.2d 706, 713 & n.13 (9th Cir. 1964).
As to formal findings, the Court finds that they are unnecessary. In this case, the Administrator's conclusion that sufficiently stringent Georgia standards exist was implicit in his official notice of certification approval sent to the Commissioner of the Georgia Department of Transportation. Formal findings are not usually required, see Overton Park, supra, 401 U.S. at 417-21, and the statute and regulations involved in the instant case do not call for such findings. The Court is confident that it can review the Administrator's actions on the basis of the record, without formal findings. Id.
It will be necessary to arrange a timetable for the submission of the agency record and memoranda in support of the parties' respective positions on review, in order that the final count of this complaint may be adjudicated. Accordingly, the Court has asked the parties to submit a timetable for said submissions in the Order, issued in accordance with the foregoing Memorandum Opinion of even date herewith.
Charles R. Richey
United States District Judge
DATE: April 28, 1976 ORDER - April 28, 1976
This case comes before the Court on defendants' motion to dismiss, or in the alternative for summary judgment, on all four counts of plaintiffs' amended complaint, and plaintiffs' motion for summary judgment on the first three counts of their complaint. In accordance with the Memorandum Opinion of this Court issued of even date herewith, it is, by the Court, this 28th day of April, 1976,
ORDERED, that defendants' motion on Counts I and III of plaintiffs' complaint be, and the same hereby is, granted, and those counts be, and the same hereby are, dismissed; and it is
FURTHER ORDERED, that plaintiffs' motion for summary judgment on Count II be, and the same hereby is, granted; and it is
ORDERED, ADJUDGED, AND DECREED, that in advising the federal government on prospective Certification Acceptance regulations, the American Association of State Highway and Transportation Officials (AASHTO) served as an "advisory committee" within the meaning of the Federal Advisory Committee Act; and it is
FURTHER ORDERED, ADJUDGED AND DECREED, that any future meetings between the Federal Highway Administration (FHWA) and AASHTO in the interest of obtaining advice or recommendations for FHWA on proposed regulations shall be subject to the following requirements of the Federal Advisory Committee Act:
(1) each meeting shall be open to the public,
(2) timely notice of each meeting shall be published in the Federal Register,
(3) interested persons shall be permitted to attend, appear before, or file statements with FHWA subject to such reasonable rules or regulations as FHWA may prescribe,
(4) subject to 5 U.S.C. § 552, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available at or prepared for such meeting shall be available for public inspection and copying at a single location in the offices of the FHWA,
(5) detailed minutes of each meeting shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued or approved at the meeting.
FURTHER ORDERED, that defendants' motion to dismiss, or in the alternative for summary judgment, on Count IV of plaintiffs' complaint be, and the same hereby is, denied; and it is
FURTHER ORDERED, that within ten (10) days of the date of this Order, attorneys for all parties herein shall confer and shall submit to the Court a proposed timetable for judicial review of agency action in approving Georgia's Certification Acceptance Plan.
Charles R. Richey
United States District Judge
April 28, 1976