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WASHINGTON LEGAL FOUND. v. U.S. SENTENCING COMMN.

July 7, 1993

WASHINGTON LEGAL FOUNDATION, Plaintiff,
v.
U.S. SENTENCING COMMISSION, et al., Defendants.



The opinion of the court was delivered by: CHARLES R. RICHEY

 The Court has before it the Defendants' and the Plaintiff's respective Motions for Summary Judgment in the above-captioned case, in which the Plaintiff, Washington Legal Foundation, seeks access to certain private meetings and documents of the United States Sentencing Commission's Advisory Working Group on Environmental Sanctions. Based upon the Motions, the opposition thereto, the underlying record, and the applicable law, the Court must grant the Defendants' Motion and deny the Plaintiff's Motion.

 I. BACKGROUND

 As part of the Sentencing Reform Act of 1984, Congress created the United States Sentencing Commission ("the Commission"). 28 U.S.C. §§ 991 -98. The purpose of the Commission is to "establish sentencing policies and practices for the Federal criminal justice system" and to "develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing . . . ." 28 U.S.C. § 991(b). The Commission was "established as an independent commission in the judicial branch of the United States." 28 U.S.C. § 991(a) (emphasis added), and its placement therein has been upheld by the Supreme Court. See Mistretta v. United States, 488 U.S. 361, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989).

 In February, 1992, the Commission established an Advisory Working Group on Environmental Sanctions ("the Advisory Group") to advise the Commission on the development of sentencing guidelines and policy statements with respect to organizations convicted of environmental offenses. The Advisory Group did not open its meetings to members of the public. Rather, the Advisory Group worked in private, generating a draft of recommended sentencing guidelines for environmental crimes which it released on March 5, 1993. The Advisory Group accepted public comments on the draft and held a public hearing on May 10, 1993. The Advisory Group plans to continue to meet privately until it completes its tasks as directed by the Commission.

 The Plaintiff brought suit on May 12, 1993, after a number of attempts to gain access to the private meetings of the Advisory Group. The Plaintiff asserts that it is entitled to attend the meetings and to have access to the documents of the Advisory Group. The Plaintiff bases its claim on the Federal Advisory Committee Act, 5 U.S.C. App. 2, §§ 1-15, the federal common law of public records, and the scope of the Commission's powers as set forth in 28 U.S.C. §§ 991-98.

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate in cases in which:

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 In this case, the facts are undisputed surrounding the creation of the Advisory Group here involved. Therefore, the Court is only required to evaluate whether the Advisory Group is required, as a matter of law, to conduct open meetings or to make its internal documents and memoranda available to the public. Consequently, the Court may decide the case on summary judgment grounds. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 II. BECAUSE THE ADVISORY GROUP WAS NOT "ESTABLISHED OR UTILIZED" BY AN "AGENCY" IN THE EXECUTIVE BRANCH WITHIN THE MEANING OF THE FEDERAL ADVISORY COMMITTEE ACT, THE ADVISORY GROUP IS NOT SUBJECT TO THE REQUIREMENTS OF THE ACT.

 The Plaintiff claims that the Advisory Group is subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2, §§ 1-15 ("FACA"), which contains detailed requirements as to public notice of meetings, access to records used by advisory committees, and as to the open nature of advisory committee meetings. However, the Defendants correctly argue that the Advisory Group is not subject to FACA. FACA governs only those advisory committees which, inter alia, are "established or utilized by one or more agencies," 5 U.S.C., App. 2, § 3(2)(C) (emphasis added), as an "agency" is defined for purposes of the Administrative Procedure Act, 5 U.S.C. § 551(1) ("APA").

 Under the APA, an "'agency' means each authority of the Government of the United States," but does not include "the courts of the United States." 5 U.S.C. § 551(1)(B). This exemption has been construed to include not only courts in the traditional sense, but also "the entire judicial branch of the Government." In re Fidelity Mortgage Investors, 690 F.2d 35, 38 (2d Cir. 1982), cert. denied 462 U.S. 1106 (1983); Wacker v. Bisson, 348 F.2d 602, 608 n.18 (5th Cir. 1965). Thus, administrative bodies established in the judicial branch are not subject to the APA or the FACA.

 The Commission, by the very terms used in the statute creating it, is "an independent commission in the judicial branch." 28 U.S.C. § 991(a). Consequently, courts have held that the Commission is exempt from the APA, the Freedom of Information Act, and other federal statutes. See, e.g., United States v. Lopez, 291 U.S. App. D.C. 34, 938 F.2d 1293, 1297 (D.C. Cir. 1991); Andrade v. United States Sentencing Commission, 989 F.2d 308 (9th Cir. 1993); United States v. Frank, 864 F.2d 992, 1013 (3rd Cir. 1988), cert. denied, 490 U.S. 1095, 104 L. Ed. 2d 998, 109 S. Ct. 2442 (1989). Placement of the Commission within the judicial branch does not constitute a violation of the separation of powers doctrine. See Mistretta v. United States, 488 U.S. 361, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989). Thus, the Commission is not an "agency" for purposes of the FACA, and the Advisory Group is not subject to the requirements of the FACA. *fn1"

 The Plaintiff alternatively argues that, even if the Advisory Group was "established" by the Commission, as part of the judicial branch, the Advisory Group is still subject to FACA because it is "utilized" by the Department of Justice for advice and recommendations. Specifically, the Plaintiff claims that the Advisory Group is utilized by the Department of Justice because the Attorney General's representative to the Commission, Roger Pauley, has submitted comments with respect to the Advisory Group draft guidelines on ...


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