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WASHINGTON LEGAL FOUND. v. UNITED STATES DOJ

August 4, 1988

WASHINGTON LEGAL FOUNDATION, Plaintiff, and PUBLIC CITIZEN, Plaintiff-Intervenor,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE.

 Plaintiff Washington Legal Foundation and plaintiff-intervenor Public Citizen *fn1" bring this action against the United States Department of Justice ("DOJ") *fn2" seeking declaratory relief that the agency's use of the American Bar Association Standing Committee on Federal Judiciary ("ABA Committee" or "Committee") for evaluations of the qualifications of nominees for federal judgeships violates the Federal Advisory Committee Act ("FACA" or "Act"), 5 U.S.C. App. II. *fn3" Plaintiffs request that, should DOJ continue to solicit advice from the ABA Committee, the agency be enjoined to comply with the Act's requirements, *fn4" such as filing an advisory committee charter, 5 U.S.C. App. II, § 9(c), providing advance public notice of Committee meetings, id. § 10(a)(2), opening meetings to the public, id. § 10(a)(1), assigning a federal official to attend all meetings, id. § 10(e), maintaining and providing public access to the Committee's records, id. §§ 8(b), 10(b), and having a "fairly balanced" membership in terms of points of view represented and functions to be performed. *fn5" The matter now comes before the Court on the parties' motions for summary judgment. *fn6"

 The primary questions presented by this case are two-fold: (1) is the ABA Committee an advisory committee under FACA? and (2) would application of FACA to the ABA Committee violate the constitutional principle of separation of powers? For the reasons set forth below, the Court finds that the ABA Committee is an advisory committee "utilized" by DOJ within the meaning of FACA, 5 U.S.C. App. II, § 3(2), but that FACA cannot constitutionally be applied to the ABA Committee because to do so would violate the express separation of nomination and consent powers set forth in Article II of the Constitution and because no overriding congressional interest in applying FACA to the ABA Committee has been demonstrated.

 I. Factual Background

 In selecting individuals to nominate for federal judgeships, the President considers numerous sources of information and advice, including that of private citizens, public officials, and government agencies. *fn7" At issue in this case is the information provided to the President by the fourteen-member ABA Standing Committee on Federal Judiciary, *fn8" one of the several working committees of the 328,000-member American Bar Association and a private entity not financially supported by any federal agency. *fn9" The ABA Committee submits its evaluation and rating of nominees to the Attorney General, who in conjunction with the President's federal judicial selection committee, *fn10" gathers information and makes recommendations to the President concerning the qualifications of individuals who may be considered for nomination and appointment. *fn11"

 At the direction of the President's federal judicial selection committee, DOJ commences the review process by requesting the ABA Committee to investigate and evaluate potential candidates' professional qualifications and to provide a formal report to the Assistant Attorney General. *fn12" DOJ does not provide the names of potential nominees to any other non-governmental entities for evaluation. *fn13" DOJ notifies candidates of their selection for possible nomination, requests candidates to complete a Personal Data Questionnaire designed by the ABA, *fn14" and directs them to provide the information requested on that questionnaire to the Chair of the ABA Committee, to the Committee's representative for the relevant federal circuit, and to the Assistant Attorney General, Office of Legal Policy. *fn15" The Committee's 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. *fn16"

 Upon completion of the investigation, a report is prepared and circulated to the full ABA Committee, which then together determines a final qualifications rating -- either "exceptionally well qualified," "well qualified," "qualified," or "not qualified." *fn17" This one- or two-sentence rating *fn18" is forwarded to DOJ, accompanied by an indication of whether it is supported by a majority or substantial majority of the Committee, or unanimously. *fn19" The rating and the report remain confidential. *fn20"

 The Committee's rating, along with other information such as the Federal Bureau of Investigation reports, the candidate's financial declaration, and medical background, is then considered by the Attorney General in making a recommendation to the President. *fn21"

 After the President announces the nomination, the ABA Committee rating is publicly disclosed during the confirmation hearings conducted by the Senate Judiciary Committee. *fn22"

 II. Discussion

 A. Is the ABA Committee an Advisory Committee under FACA ?

 In determining whether the ABA Standing Committee on Federal Judiciary is an advisory committee under FACA, the Court first turns to the plain language of the statute. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); Kosak v. United States, 465 U.S. 848, 853, 79 L. Ed. 2d 860, 104 S. Ct. 1519 (1984). FACA defines an "advisory committee" as

 
any committee, board, commission, council, conference, panel, task force, or other similar group . . . which is . . .
 
(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. II, § 3(2) (emphasis added). Since there is no contention here that the ABA Committee was "established" by the President or a federal agency, the Court proceeds to examine whether DOJ has "utilized" the ABA Committee within the meaning of Section 3(2).

 Interpreting the term "utilized" is not as complicated a task as defendant suggests. The common-sense meaning of "utilized" is "to make use of." Webster's Third New International Dictionary (1963). The facts as outlined above and discussed further below easily support the conclusion that DOJ "makes use of" the ABA Committee by directly and preferentially soliciting its assistance and recommendation on judicial nominees. Although reliance on the plain language of FACA alone is not entirely satisfactory because FACA "contains a very broad, imprecise definition, and in this respect is not a model of draftsmanship," Nader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975); see also Center for Auto Safety v. Tiemann, 414 F. Supp. 215, 223 (D.D.C. 1976), remanded on other grounds, 188 U.S. App. D.C. 426, 580 F.2d 689 (D.C. Cir. 1978), the statute's legislative history, while not greatly illuminating, Consumers Union of the United States, Inc. v. Department of Health, Education, and Welfare, 409 F. Supp. 473, 475 (D.D.C. 1976), aff'd, 179 U.S. App. D.C. 280, 551 F.2d 466 (D.C. Cir. 1977), also supports a liberal interpretation of the term "utilized." Lombardo v. Handler, 397 F. Supp. 792, 797-800 (D.C. Cir. 1975), aff'd, 178 U.S. App. D.C. 277, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932, 53 L. Ed. 2d 248, 97 S. Ct. 2639 (1977); Center for Auto Safety, 414 F. Supp. at 223 (citing S. Rep. No. 92-1098, 92d Cong., 2d Sess. 8 (1972) ("the words 'established' and 'organized' should be interpreted in their most liberal sense'") and H.R. Rep. No. 92-1017, 92d Cong., 2d Sess. 4 (1972)).

 The regulations promulgated under FACA by the General Services Administration ("GSA"), 5 U.S.C. App. II, § 7(c), further support the conclusion that DOJ has "utilized" the ABA Committee as an advisory committee. ...


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