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PUBLIC CITIZEN v. COMMISSION ON THE BICENTENNIAL O

November 19, 1985

PUBLIC CITIZEN, Plaintiff,
v.
COMMISSION ON THE BICENTENNIAL OF THE UNITED STATES CONSTITUTION, Defendant



The opinion of the court was delivered by: OBERDORFER

OBERDORFER, Judge:

 MEMORANDUM

 I.

 Plaintiff in this action is Public Citizen, a non-profit public interest organization. Defendant is the Commission on the Bicentennial of the United States Constitution (Commission), created by Congress in 1983 to facilitate the celebration of the 200th anniversary of the United States Constitution. Pub. L. 98-101, 97 Stat. 719 (1983). Its authority expires on December 31, 1989. Pub. L. 98-101 at § 7.

 Plaintiff charges that the Commission has violated, and intends at its meeting on November 24-25, 1985, to violate, the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I (1982). The FACA requires that an advisory committee hold open meetings and give reasonable advance notice of its meetings. 5 U.S.C. App. I, § 10(a)(1), (2); 41 C.F.R. §§ 101-6.1002(d) (1985). It is undisputed that the Commission has not complied with the FACA requirements and does not feel itself to be bound by the FACA provisions. Defendant urges that the Commission is privileged to conduct its business in public or behind closed doors and has chosen the latter. The sole issue for judicial resolution is whether the Commission is an advisory committee within the meaning of the FACA which would require the Commission to open its meetings. *fn1"

 The matter is before the Court on plaintiff's motion for a preliminary injunction and defendant's motion to dismiss or for summary judgment. Plaintiff suggests that the Court treat the motions as dispositive cross-motions for summary judgment. The issues presented are purely legal issues and no material facts are in dispute. Accordingly, an accompanying order will resolve the controversy by granting defendant's motion and dismissing the complaint.

 The case involves the intersection of two federal statutes. One, the FACA, imposes restrictions on advisory committees, among other things, requiring them to hold open meetings. Under the FACA, an advisory committee is defined as:

 
any committee, board, commission, council, conference, panel, task force, or other similar group, . . . 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.

 5 U.S.C. App. I § 3(2). The other statute is Public Law 98-101 by which Congress created the Commission. The Commission is composed of twenty-three members. Three members are designated by the statute: the Chief Justice of the United States, the President pro tempore of the Senate, and the Speaker of the House, or their designees. The President appoints the remaining twenty members and designates the Chairman. The members designated by the President include senators, congressmen, and federal judges, as well as private citizens.

 II.

 A.

 Plaintiff argues that "the Commission is clearly an advisory committee covered by FACA." Memorandum In Support of Plaintiff's Motion For a Preliminary Injunction (Plaintiff's Mem.) at 6 (filed October 23, 1985). Plaintiff relies on the statutory requirement that:

 
Within two years after the date of enactment of this Act, the Commission shall submit to the President and each House of the Congress and the Judicial Conference of the United States a comprehensive report incorporating specific recommendations of the Commission for commemoration and coordination of the bicentennial and related activities. Such report shall include recommendations for publications, scholarly projects, conferences, programs, films, libraries, exhibits, ceremonies, and other projects, competitions and awards, and a calendar of major activities and events planned to commemorate specific historical dates. Each year after such comprehensive report, the Commission shall submit an annual report to the President, each House of the Congress, and the Judicial Conference until such Commission terminates.

 Pub. L. 98-101 at § 6(e). According to plaintiff, the report to the President would necessarily involve advice to him and to government agencies. Plaintiff also relies on the President's statement as he signed the Act into law:

 
I welcome the participation of the Chief Justice, the President pro tempore of the Senate, and the Speaker of the House of Representatives in the activities of the Commission. However, because of the constitutional impediments contained in the doctrine of separation of powers, I understand that they will be able to participate only in ceremonial or advisory functions of the Commission, and not in matters involving the administration of the act. Also, in view of the incompatibility clause of the Constitution, ...

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