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November 26, 1986

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY, Robert B. Fiske, Jr., Ralph L. Lancaster, Jr., Robert MacCrate, Jerome J. Shestack, James A. Howard, Sr., Gene W. Lafitte, John C. Elam, Joan M. Hall, James W. Hewitt, John Gavin, Samuel L. Williams, James A. Clark, M. Roland Nachman, Jr., John D. Lane, American Bar Association, William W. Falsgraf, Defendants

The opinion of the court was delivered by: GREEN


 In its complaint, the plaintiff, Washington Legal Foundation ("WLF"), has alleged that the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. II, and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, apply to defendants. For the reasons set forth below, defendants' motion to dismiss is granted.

 I. Background

 WLF is a non-profit public interest law center incorporated under the laws of the District of Columbia. It contends that it "has engaged in activities designed to improve the judiciary and wishes to participate in the federal judicial selection process." Id. The defendants, members of the American Bar Association Standing Committee on the Federal Judiciary ("ABA Standing Committee" or "Committee"), are an incorporated association established under the bylaws of the American Bar Association. The ABA Standing Committee consists of fourteen members; two members are selected from the Ninth Circuit, one member from each of the other eleven judicial circuits, and one member selected at large. The Committee is a private entity which does not receive funds or financial support from any government agency. Other defendants are the American Bar Association, an unincorporated association, its President, William W. Falsgraf, and unidentified John Doe(s) who are alleged to have acted on behalf of the Committee in the same capacity as one of its members, but was not then a member of the Committee.

 Since 1948 the ABA Standing Committee has reviewed the professional qualifications of individuals "identified by the President, through the United States Department of Justice, as possible nominees" for a federal judgeship. Defendants' Motion to Dismiss at 5. See also Appendix B at 1, attached to Defendants' Motion to Dismiss. The review process has traditionally involved confidential interviews with lawyers, judges, and professors in the nominee's community, close scrutiny of the nominee's legal writings, and talks between Committee members and the nominee over the nominee's qualifications. All details of the review process and the identity of those asked to discuss a nominee's qualifications are kept confidential by the ABA.

 The use to which this review is put lies at the heart of this lawsuit. *fn1" At the conclusion of the "information gathering" stage of the process a confidential final report is submitted to the Committee chairman accompanied by one of four recommended ratings: "exceptionally well qualified," "well qualified," "qualified," or "not qualified." Each member of the Committee must then vote on a "final" rating to be given the nominee. The results of the Committee's decision are thereafter disclosed to the Department of Justice. Only the rating is revealed. The contents of the report remain confidential.

 The plaintiff contends that because the ABA Standing Committee's recommendations are utilized by the Department of Justice, the Committee constitutes an "advisory committee" as defined by FACA. As such, the plaintiff argues, the Committee is required (1) to "provide reasonable advance public notice of [its] meetings," (2) "open [its] meetings to the public," (3) "provide [the] plaintiff and the public [with] access to its [the Committee's] records," and (4) provide "a fairly balanced membership of the . . . Standing Committee . . . in terms of points of view represented and functions to be performed." Complaint para. 1.

 Characterizing defendants as an advisory committee, WLF contends that the Committee's investigations "have been conducted and are continuing to be conducted in such a way as to penalize or discredit candidates who hold or profess conservative principles or ideology, and to delay or prevent their nomination by the President." Complaint para. 26. WLF further argues that it has requested reports and minutes of meetings conducted by the Committee in its capacity as an "advisory committee" to the Department of Justice, see id. P 36, and has been denied that information, id. P 39; and that it has requested and has been denied permission to "participate in the [ABA's] judicial selection process . . . to ensure the fairness of the proceedings." Complaint paras. 35, 39. The plaintiff asserts that because the defendant ABA Standing Committee constitutes an advisory committee within the meaning of FACA, WLF is now entitled to injunctive relief enjoining defendants from conducting any further meetings or otherwise evaluating any candidates for judicial office until they comply with all the provisions of the FACA by (1) providing reasonable advance public notice of all future meetings; (2) opening their meetings to the public; (3) recomposing the membership of the Committee so that it is fairly balanced in terms of points of view represented; (4) filing an advisory committee charter with the Director of the Office of Management and Budget and Department of Justice; (5) designating a federal officer or employee to attend and call for or approve of all meetings of the Committee; (6) keeping detailed minutes of each meeting as required by FACA; and (7) making their records available to the public.

 In response to the plaintiff's contentions the defendants have filed two motions to dismiss. In the first they argue that the Standing Committee is not an entity capable of being sued, and that the Committee's individual members do not fall within the scope of FACA. By agreement of the parties, resolution of that motion has been appropriately deferred pending determination of the second motion to dismiss. It is the latter motion that is now before the Court.

 II. Analysis

 The defendants assert essentially three arguments in support of their position. First, they argue that the plaintiff lacks standing to raise "key allegations" in its complaint. Motion to Dismiss at 10. Specifically, the defendants contend that the plaintiff's alleged interest in a "more balanced" ABA Standing Committee and a "more balanced federal judiciary" is too "speculative" and "attenuated" to confer standing under § 5 of FACA. Motion to Dismiss at 13, 14. Second, the defendants argue that the plaintiff's construction of FACA sweeps far too broadly. The defendants take the position that FACA does not apply to them because (1) the Act does not create a cause of action against a private organization, (2) the defendants do not constitute an "advisory committee" within the meaning of FACA, and (3) the documents sought are unavailable under certain FOIA exemptions incorporated into FACA. Third and finally, the defendants raise two constitutional arguments in support of dismissal: that application of FACA in this instance violates both the separation of powers doctrine and the defendants' first amendment rights of speech and association because it interferes with the President's appointment power and requires the Court to "determine by judicial decree the persons with whom members of the Committee may associate [and] . . . what the Committee [shall] say[]." Motion to Dismiss at 23.

 There can be but little question that the defendants have raised serious questions about the constitutionality of the plaintiff's proposed application of FACA. In those instances where a "serious doubt of constitutionality" has been raised concerning a statute, a court must "first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." International Ass'n of Machinists v. Street, 367 U.S. 740, 749-50, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961).

 The analysis begins, therefore, by addressing the defendants' standing and statutory construction arguments. Resolution of these threshold issues may obviate the need for determination ...

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