in an advisory capacity. As the Court of Appeals in Center for Auto Safety stated, "when an administrator establishes or utilizes an advisory committee, he must comply with the provisions of the Act . . . ." 580 F.2d at 693 (emphasis added). The proper remedy for a violation of FACA, therefore, is an order requiring the government either to cease its undertakings with the advisory committee or to ensure that the advisory committee is brought into compliance with the Act. To the extent that an advisory committee utilized by the government is not regulated by FACA, it cannot be held to have breached FACA. Under these circumstances, remedial relief or a suit directed against the Committee would be inappropriate.
This point is best illustrated by the language of the Act itself. Section 8(b) of the Act specifies that the "head of each agency which has an advisory committee shall designate an Advisory Committee Management Officer who shall . . . assemble and maintain the reports, records, and other papers of any [advisory] committee during its existence . . . ." The provision also states that the Advisory Committee Management Officer shall carry out public information obligations "with respect to such reports, records, and other papers" under 5 U.S.C. § 552. 5 U.S.C. App. 2 § 8(b). Section 8(b) essentially places control of documents, papers, and reports used by the Committee to communicate its advice or recommendations in the control of the government. By requiring government, as opposed to committee, control of documents, it would appear that the drafters of FACA envisioned that an aggrieved party seeking recourse under the Act would "bring suit for injunction" against the government. See FACA Sourcebook, Cong. Rec. S. 2064 at 150 (remarks of Sen. Percy, suggesting that a party's only recourse under FACA would be to bring a suit for injunction.)
A similar argument can be made based on sections 7, 8, and 13 of the Act. Each of these sections sets forth actions that must be taken by government officials. Enforcement of these sections would necessarily require an injunctive order against a government official, not the Committee. Indeed, even establishment of the advisory committee in the first instance under section 9 requires specific action by a federal official. Accord Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048, 1051 (D.D.C. 1974) (where government utilizes advisory committee, government must charter and establish the committee in compliance with FACA).
The defendants' interpretation of FACA is further buttressed by an important pragmatic consideration: Were suit permitted directly against a pre-existing private group utilized by the government for advice, FACA would effectively become a vehicle for forcing private organizations to turn over files or open meetings to other private parties. Clearly, FACA was not enacted with this purpose in mind. As discussed above, the Act is designed to regulate the government's use of a private group in its capacity as an advisory committee. Thus, documents disclosed to the government as the basis for advice may fall within the purview of the statute. Nothing in the Act, however, suggests that either the government or a private party can exercise control over all aspects of a pre-existing group's activities, or that such a group subjects itself to full disclosure of all its records and meetings simply by agreeing to serve as an advisory committee.
The very fact that section 8(b) of the Act mandates the selection of an Advisory Committee Management Officer to "exercise control and supervision" over the committee and to "assemble and maintain" documents generated and disclosed by the committee in its capacity as an advisory body suggests that matters not taken under the supervision or control of the Management Officer are not covered under FACA and are thus not subject to disclosure. Conversely, those matters over which the Advisory Committee has relinquished control can potentially be obtained by suing the government directly. Accordingly, as Section 8(b) indicates, suit against the government is adequate to give a private litigant the full measure of relief permitted under FACA.
While plaintiff is correct in arguing that the courts have recognized a private right of action under the Act, in no case has a court permitted a private party to assert a cause of action against a private, pre-existing group that has not been established, appointed, and financed by the government.
See, e.g., HLI Lordship Indus., 615 F. Supp. 970; Public Citizen v. Commission on the Bicentennial of the U.S. Constitution, 622 F. Supp. 753 (D.D.C. 1985). Where a committee has been established by the government, of course, the concerns discussed above about permitting suit directly against the advisory committee are no longer applicable. To the extent that an advisory committee is not pre-existing, is created by the government, and possesses no independent charter or purpose other than its role as a government-created and sponsored advisory committee, the committee is, for all intents and purposes, an extension of the government. At that point the cautious distinctions drawn by the Court of Appeals between "regulation of a committee" and "regulation of the government's use of the committee," and the pragmatic concerns involved in the direct suit of an advisory committee are no longer relevant to the debate over whom the private litigant should be permitted to sue. If the advisory committee itself is a government entity, the distinctions necessarily blur, and it becomes less likely that material created and maintained by such a committee would not be covered under FACA. Regardless which party is sued, it is the government--the regulator -- that is effectively still the defendant.
Having "ascertain[ed] . . . [that] a construction of [FACA] is fairly possible by which the constitutional question[s] may be avoided," International Ass'n of Machinists, 367 U.S. at 749-50, the constitutional questions raised by the defendants need not be addressed.
For the reasons set forth above, the Court finds that FACA does not authorize the cause of action asserted by WLF.
Accordingly, the defendants' motion to dismiss is, this 26th day of November, 1986, hereby granted.
IT IS SO ORDERED.