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ASSOCIATION OF AMERICAN PHYSICIANS & SURGS.

March 10, 1993

ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et al., Plaintiffs,
v.
HILLARY RODHAM CLINTON, et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

MEMORANDUM OPINION

 This case raises one of the most difficult issues faced by the judiciary: the separation of powers between the legislative and executive branches of government. The case comes before the court on plaintiffs' motion for a temporary restraining order and a preliminary injunction ("Plaintiffs' Motion"); defendants' motion to dismiss or, in the alternative, for summary judgment ("Defendants' Motion"), and plaintiffs' memorandum in opposition to defendants' motion and in support of plaintiffs' motion ("Plaintiffs' Reply"). The issues have been fully briefed and eloquently argued in open court. For the reasons given below, plaintiffs' motion shall be granted in part and defendants' motion shall be granted in part.

 I. INTRODUCTION AND BACKGROUND.

 President Clinton promised the American people during the recent campaign that he would address the problem of health care in this country. Although expenditures on health care are rapidly approaching $ 1 trillion a year and quickly outpacing inflation, dissatisfaction with the present system of administering medical care infects the nation.

  Thus, on January 25, 1993, President Clinton announced the creation of the President's Task Force on National Health Care Reform, an advisory body comprised of six Cabinet secretaries, several senior White House officials, and the chairperson, First Lady *fn1" Hillary Rodham Clinton. The President charged the Task Force with presenting him with a health care reform proposal he could present to Congress; the time limit was set at 100 days. At the same press conference, the President also announced the formation of an inter-departmental working group, comprised of more than 300 federal employees, which is charged with gathering and analyzing the information on which the Task Force will rely in formulating its proposal. The record indicates that the Task Force has yet to meet (with the exception of the January 25 photo opportunity), but the working group has been active, meeting with private individuals and representatives of private organizations; these meetings have not been open to the public. The Task Force's plans are to hold some, but not all, of its meetings in public.

 Plaintiffs are three not-for-profit corporations: Association of American Physicians and Surgeons, Inc., represents physicians and osteopaths; American Council for Health Care Reform represents health care consumers; and National Legal & Policy Center seeks to promote ethics in government. Each has sought to gain admittance to all meetings of the Task Force, claiming that § 10 of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2 §§ 1-15, mandates that such meetings be open to the public. Plaintiffs' claim is founded on the proposition that since the First Lady is not a federal employee, the Task Force falls within the definition of an advisory committee set forth in § 3 of FACA. See Part III.A.3., below. Each plaintiff subsequently received word from Bernard W. Nussbaum, counsel to the President, that FACA did not apply to the Task Force, but that private citizens would be allowed to take part in some of the Task Force meetings.

 Faced with exclusion from some of the meetings, the plaintiffs brought this suit. They seek a temporary restraining order and a preliminary injunction which would bar the defendants from convening a meeting of the Task Force or any subgroup or subcommittee thereof without first meeting the requirements of FACA. Defendants have opposed this suit and moved to dismiss or, in the alternative, for summary judgment. They claim (1) that FACA does not apply to the Task Force; and (2) that even if FACA does apply to the Task Force, that application would violate article II, section 3 of the Constitution. The court will address each of these questions in Part III., below.

 II. STANDARDS FOR A PRELIMINARY INJUNCTION. *fn2"

 A preliminary injunction may be granted in this circuit only when the plaintiffs demonstrate that they have met the four-part test of Washington Metro. Area Transit Comm'n v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977):

 
1. that they have a substantial likelihood of success on the merits;
 
2. that irreparable injury will result in the absence of a preliminary injunction;
 
3. that no other parties will be harmed if the injunction is entered; and
 
4. that the public interest favors entry of the injunction.

 III. LIKELIHOOD OF SUCCESS ON THE MERITS.

 A. FACA Applies to the Task Force.

 1. FACA's Definition of an Advisory Committee.

 The Federal Advisory Committee Act was passed in 1972 with two explicit goals in mind: first, to eliminate unnecessary advisory committees and ensure that future committees be properly justified; and second, to increase the accountability of advisory committees by opening their meetings to the general public and forcing disclosure of their purposes, memberships, costs, and activities. FACA § 2. To this end, Congress imposed several requirements upon the executive branch and most of its advisory committees. These include the filing of a charter (§ 9), timely publication of all advisory committee meetings (§ 10(a)(2)), public participation (§ 10(a)(3)), and disclosure of proceedings (subject to the limited exceptions of the Government in the Sunshine Act (5 U.S.C. § 552b)) (§§ 10(b), (c), and (d)). *fn4"

 Section 3(2) provides the definition of an advisory committee:

 
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . .
 
(b) established or utilized by the President
 
. . . 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. 2 § 3(2) (emphasis added). The definition section then proceeds to exclude from FACA's coverage two enumerated commissions and "(iii) any committee which is composed wholly of full-time officers or employees of the Federal Government."

 Plaintiffs argue that the First Lady is not a federal officer or employee; thus, the court should hold that FACA governs the operations of the Task Force. Defendants counter by invoking the legislative intent of Congress - limiting the pernicious influence of "outsiders" on the workings of the federal government - and suggest that the court should view Mrs. Clinton as the "functional equivalent of a federal employee." Defendants' Motion at 20.

 At issue, therefore, is the definition of the words "officer" and "employee."

 2. Avoiding the Constitutional Question.

 Defendants contend, and the court acknowledges, that plaintiffs' reading of FACA - and their literal reading of the words "officer" and "employee" - raises the constitutional issue of the power of Congress to regulate the power of the President. *fn5" Therefore, the first task of the court is to determine whether some plausible interpretation of these terms will obviate the need to examine the constitutional question. As the Supreme Court has frequently stated, "it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 76 L. Ed. 598, 52 S. Ct. 285 (1932) (footnote omitted).

 Therefore, the court's first task is to determine whether defendants' proposed definition of "officer" and "employee," although seemingly contrary to the language of Title 5 of the United States Code, is "fairly possible." If so, the Task Force would be exempted from FACA's requirements, and the constitutional question could be avoided.

 3. The Definition of "Employee."

 FACA is not a model of legislative drafting, *fn6" and the court has several models to follow in its attempt to construe the statute so as to avoid any constitutional issues. For instance, and most importantly, in Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989), the Supreme Court examined the word "utilized" in § 3 of FACA to determine whether the American Bar Association's Standing Committee on the Judiciary, which has for several decades provided the Department of Justice with a ranking on all proposed nominees for federal judgeships, qualified as an advisory committee subject to FACA's strictures. Justice Brennan, all the while acknowledging that he was rejecting "one common sense of the term [utilize]," 491 U.S. at 452, proceeded to utilize legislative history in order to find that the Department of Justice did not "utilize" the ABA Standing Committee when it "utilized" it. As the Court noted, "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." 491 U.S. at 466. In Public Citizen, the Court was successful in construing the statute in such a fashion and it thereby avoided having to address the constitutional question. *fn7" Similar techniques of statutory construction are found in National Resources Defense Council v. Herrington, 637 F. Supp. 116 (D.D.C. 1986), and Nader v. Baroody, 396 F. Supp. 1231 (D.D.C. 1975).

 Although the court believes there was little ambiguity in the word "utilize" prior to the Supreme Court's holding in Public Citizen, the court will nonetheless accept that Court's determination that "utilize is a woolly verb, its contours left undefined by the statute itself." 491 U.S. at 452. However, the terms "officer" and "employee" are shorn of all such ambiguity, and Congress has precisely determined their meanings.

 Neither "officer" nor "employee" is included in the definitions section of FACA (§ 3); in fact, in all fifteen sections of FACA, Congress gave absolutely no description or gloss as to who qualifies as "full-time officers and employees of the Federal Government." Of course, the reason for this glaring omission is evident: Congress already had provided, in §§ 2104 and 2105 of Title 5, complete definitions for both words. In relevant part, those sections provide as follows:

 Section 2104 - Officer

 
(a) For the purpose of this title [Title 5], "officer," except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is -
 
(1) required by law to be appointed in the civil service by one of the following acting in an official capacity -
 
(A) the President;
 
(B) a court of the United States;
 
(C) the head of an Executive ...

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