The opinion of the court was delivered by: URBINA
Denying Defendant's Motion to Dismiss and Granting Plaintiffs' Motion to Amend their Complaint and Motion for Summary Judgment
This matter comes before the court upon defendant Acting United States Trade Representative Charlene Barshefsky's motion to dismiss and plaintiffs Public Citizen and Sierra Club's motion for summary judgment. Upon consideration of the parties' submissions and the entire record herein, the court, in the accompanying Order, denies defendant's motion to dismiss
and grants plaintiffs' motion for summary judgment.
Pursuant to 19 U.S.C. § 2155(c)(1) & (2), the President of the United States and the United States Trade Representative ("USTR") have established 21 private sector Industry Policy, Sectoral, and Functional Advisory Committees (collectively, the "advisory committees") to aid in the development of United States trade policy. The advisory committees perform various consultative and review functions pursuant to the Trade Act of 1974, 19 U.S.C. § 2155. The USTR has primary responsibility for the administration and composition of the advisory committees. See 19 U.S.C. § 2155(c)(1) & (2).
On May 23, 1994, the USTR published a notice in the Federal Register closing to the public all meetings of the advisory committees from March 1, 1994 to March 1, 1996, pursuant to 19 U.S.C. § 2155(f)(2).
See 59 Fed. Reg. 26,686 (1994). The notice states that the USTR had determined that "these meetings will be concerned with matters the disclosure of which would seriously compromise the Government's negotiation objectives or bargaining positions." Id. The USTR has closed all advisory committee meetings for this reason in two-year intervals since at least 1980.
The plaintiffs filed this action against the USTR seeking declaratory and injunctive relief from the USTR's closure of the advisory committee meetings from March 1, 1994 to March 1, 1996. In particular, plaintiffs argue that the USTR's "blanket closure" of all advisory committee meetings violates 19 U.S.C. § 2155(f) (Trade Act of 1974), 5 U.S.C. § 706(2)(A) (Administrative Procedure Act), and 5 U.S.C. App. 2 § 10(a)(1), (a)(2) & (d) (Federal Advisory Committee Act).
On March 1, 1996, the USTR's blanket closure order expired. Since initiation of this action, the USTR has published an identical notice closing all meetings of the advisory committees from March 1, 1996 to March 1, 1998. See 61 Fed. Reg. 25,720 (1996).
On August 20, 1996, plaintiffs filed an unopposed motion for leave to amend their complaint. Plaintiffs' amended complaint seeks injunctive and declaratory relief from the USTR's closure of the advisory committee meetings from March 1, 1996 to March 1, 1998, and substitutes Acting USTR Charlene Barshefsky for former USTR Michael Kantor as the defendant in this action. As there are no substantive changes to the legal claims of the parties, there is no need to duplicate the motions, evidence, and legal arguments that have been presented to the court thus far in this action. The court grants plaintiffs' motion to amend their complaint, and proceeds to the dispositive motions of the parties.
A. Summary Judgment Standard
Summary judgment "shall be rendered forthwith if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). As there are no material facts in dispute, the instant case shall be resolved on summary judgment.
Four statutes are involved in this case: the Federal Advisory Committee Act, 5 U.S.C. App. 2 ("FACA"); the Trade Act of 1974, 19 U.S.C. §§ 2101 et seq. ("Trade Act"); the Government in the Sunshine Act, 5 U.S.C. § 552b ("Sunshine Act"); and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA").
disclose matters specifically exempted from disclosure by statute (other than section 552 of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for ...