in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
The USTR concedes that the extent of her authority to close advisory committee meetings under the Trade Act is subject to judicial review. See Defendant's Reply at 13. The USTR argues, however, that (1) her interpretation of the Trade Act as allowing a blanket closure of advisory committee meetings is a plausible one that deserves deference from the court; and (2) Congress's intent to permit such closures is manifest from Congress's long-standing acquiescence to such closures.
1. Deferring to the USTR's Interpretation of § 2155(f) is inappropriate
Courts must defer to an agency's permissible construction of the statute which it administers if the intent of Congress is not clearly expressed through the plain language or legislative history of the statute. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). The Chevron doctrine requires the court to undertake a two-step analysis. First, the court must determine whether Congress has directly spoken to the precise question at issue. If Congress has not addressed the precise issue, the court must proceed to step two, the court "defer[s] to the Agency's interpretation of the statute if it is reasonable and consistent with the statute's purpose." National Medical Enters., Inc. v. Shalala, 310 U.S. App. D.C. 40, 43 F.3d 691, 695 (D.C. Cir. 1995) (quoting Chemical Mfrs. Ass'n v. EPA, 287 U.S. App. D.C. 49, 919 F.2d 158, 162-63 (D.C. Cir. 1990)).
The Trade Act is ambiguous as to whether the USTR may close all advisory committee meetings with a single blanket closure order. Section 2155(f)(2) merely states that advisory committee meetings may be closed "whenever and to the extent it is determined . . . that such meetings" will be concerned with certain confidential matters. The USTR relies on the legislative history of the Trade Act to support her interpretation. In particular, the USTR reads the following language in the Senate Finance Committee Report on the Trade Act as authorizing blanket closures of advisory committee meetings: "It is anticipated that, as the advisory committees begin discussion of U.S. negotiating positions, one determination [by the USTR] could be issued [to close] all future meetings on that subject." S. Rep. No. 1298, 93d Cong., 2d Sess. 103 (1974), reprinted in 1974 U.S.C.C.A.N. 7186, 7250.
Plaintiffs read this same language to mean that once an initial determination has been made that a certain issue is confidential under § 2155(f)(2), that determination need not be revisited every time a meeting is scheduled to discuss that same confidential issue. Under plaintiffs' interpretation, the USTR must know that a meeting will concern previously-determined confidential issues before she may "piggyback on a prior determination of harm." Plaintiffs' Opposition Memorandum at 19.
Because both parties' readings of the legislative history are plausible, and because Congress has not directly spoken to the precise issue raised by this action, the court proceeds to step two of its Chevron analysis. The court must defer to the USTR's interpretation of her authority to close advisory committee meetings provided that her interpretation is reasonable and consistent with the purpose of § 2155(f)(2). National Medical Enters., Inc., 43 F.3d at 695. Because the blanket closure is inconsistent with the purpose of § 2155(f)(2), the court declines to defer to the USTR's interpretation of § 2155(f)(2) and concludes that the USTR's blanket closure of the advisory committee meetings violates the Trade Act. Furthermore, because the court can discern no reasonable basis for the USTR's blanket closure order, the court concludes that the order violates the APA.
a. Violation of the Trade Act
The Trade Act provides that the advisory committees consult the President concerning a broad range of issues affecting United States trade policy.
Congress clearly determined that some, but not all, of the issues to be discussed by the advisory committees would be confidential. Thus, Congress established a presumption that the advisory committee meetings would be open to the public, with an exception for "such meetings" as the President or his designee determines will concern specified confidential matters. See 19 U.S.C. § 2155(f).
The USTR premised her blanket closure on her determination that the advisory committee meetings from March 1, 1996 to March 1, 1998, "will be concerned with matters the disclosure of which would seriously compromise the Government's negotiating objectives or bargaining positions." 61 Fed. Reg. 25,720 (1996). The USTR offered no evidence that each meeting of 21 advisory committees over the next two years will concern confidential matters as defined in § 2155(f)(2). The USTR's blanket closure amounts to a declaration that the advisory committees discuss only those matters that are considered confidential under § 2155(f)(2). Such a contention runs counter to the advisory committees' broad statutory mandate, reverses the presumption of open meetings established in § 2155(f), and is not supported by any evidence offered by the USTR. Therefore, the court concludes that the USTR's blanket closure of the advisory committee meetings is not authorized by § 2155(f) of the Trade Act.
b. Violation of the APA
The APA requires the court to set aside agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In assessing an agency decision under the APA, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). "When an agency merely parrots the language of a statute without providing an account of how it reached its results, it has not adequately explained the basis for its decision." Dickson v. Secretary of Defense, 314 U.S. App. D.C. 345, 68 F.3d 1396, 1405 (D.C. Cir. 1995).
As discussed above, the USTR has failed to provide any reasoned basis for her blanket closure of the advisory committee meetings, save a curt repetition of the authorizing language of § 2155(f)(2). As Dickson makes clear, such an "explanation" is no explanation at all. Dickson, 68 F.3d at 1405. Therefore, the USTR has violated the APA by failing to provide an adequate explanation for her closure order and has exceeded her closure authority under the Trade Act.
Because the USTR's blanket closure of the advisory committee meetings violates the Trade Act and the APA, the court vacates the USTR's closure order published at 61 Fed. Reg. 25,720 (1996).
2. Inferring Congressional Ratification of the USTR's Blanket Closure Authority is Inappropriate
The USTR urges the court to infer congressional ratification of her interpretation of § 2155(f) based on Congress's failure to modify the USTR's long-standing blanket closure policy despite numerous opportunities to do so. The USTR has closed all advisory committee meetings since at least 1980. See supra, note 3. Despite having amended § 2155 four times since its enactment, Congress has failed to specifically prohibit the USTR's blanket closure policy.
The cases that the USTR cites to support her argument variously refer to congressional silence as providing "persuasive evidence," "a presumption," and "some persuasive weight" for the conclusion that Congress has impliedly ratified an agency's statutory interpretation.
Instructively, none of the courts referenced by the USTR relied solely on Congress's silence to infer congressional ratification. In fact, nearly all of the cases cited by the USTR inferred congressional ratification only where the administrative interpretation of the statute at issue was "shown clearly to have been brought to the attention of Congress and not changed by it." Kay v. FCC, 143 U.S. App. D.C. 223, 443 F.2d 638, 646-47 (D.C. Cir. 1970).
In the instant case, the USTR provides no evidence that Congress was specifically aware of the USTR's blanket closure orders yet failed to amend § 2155(f) to overturn the USTR's interpretation of her closure authority.
The Supreme Court has cautioned courts to be "extremely hesitant to presume general congressional awareness of [an agency's] construction [of a statute] based only upon a few isolated statements in the thousands of pages of legislative documents." SEC v. Sloan, 436 U.S. 103, 121, 56 L. Ed. 2d 148, 98 S. Ct. 1702 (1978). In Sloan, the Court declined to presume general congressional acquiescence in a 34-year-old practice of the Securities and Exchange Commission, despite the fact that the Senate committee having jurisdiction over the SEC's activities had long expressed approval of the practice. The Court was persuaded not to infer congressional ratification because the practice at issue "not only [was] at odds with the language of the section in question and the pattern of the statute taken as a whole, but also [was] extremely far reaching in terms of the virtually untrammeled and unreviewable power it would vest in a regulatory agency." Id.
The court finds the reasoning of SEC persuasive. Implying congressional ratification of the USTR's blanket closure authority is inappropriate in the instant case because it is not clear that the biannual notices published by the USTR in the Federal Register actually made Congress aware of the USTR's interpretation of § 2155(f). Furthermore, the USTR's interpretation of § 2155(f) is inconsistent with the structure of the Trade Act and would effectively place her closure determinations beyond public scrutiny and judicial review.
For the reasons stated above, the court, in the accompanying Order, denies defendant's motion to dismiss and grants plaintiffs' motion for summary judgment. The court vacates the USTR's closure order published at 61 Fed. Reg. 25,720 (1996).
Ricardo M. Urbina
United States District Judge
Denying Defendant's Motion to Dismiss and Granting Plaintiffs' Motion to Amend their Complaint and Motion for Summary Judgment
For the reasons stated in the accompanying Memorandum Opinion, it is, on this 19 day of September 1996,
ORDERED that defendant's motion to dismiss be and hereby is denied ; and it is
FURTHER ORDERED that plaintiffs' motion for summary judgment be and hereby is granted ; and it is
ORDERED that the USTR's order closing all Industry Policy, Sectoral, and Functional Advisory Committees' meetings from March 1, 1996, to March 1, 1998, published at 61 Fed. Reg. 25,720 (1996), be and hereby is vacated.
Ricardo M. Urbina
United States District Judge