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Citizens for Responsibility and Ethics in Washington v. Leavitt

September 22, 2008


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Citizens for Responsibility and Ethics in Washington brings this action pursuant to the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2 §§ 1 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, against the Department of Health and Human Services ("HHS") and its Secretary, Michael Leavitt. Plaintiff alleges that two meetings organized by the agency in March 2008 with a group of private individuals regarding the Office of Head Start's ("OHS") performance standards were subject to FACA. Based on this allegation, plaintiff seeks a declaratory judgment that defendants violated FACA, copies of all documents made available to or prepared for or by the group, and an injunction enjoining defendants from utilizing, consulting, or obtaining information or advice from the group until they comply with FACA. This matter is before the Court on defendants' motion for summary judgment. For the reasons set forth below, the Court will grant the motion.


Plaintiff is a non-profit corporation "committed to protecting the right of citizens to be informed about the activities of government officials and to ensuring the integrity of government officials through transparency in government processes." (Compl. ¶ 4.) Defendant HHS administers the Head Start program by funding and exercising oversight of approximately 1,600 local community organizations that provide Head Start services to low-income children and families in their community. (Declaration of Patricia E. Brown, Acting Director of the Office of Head Start ["Brown Decl."] ¶ 6 (attached to Defs.' Statement of Material Facts).) The Head Start program promotes school readiness of low-income children by enhancing their cognitive, social, and emotional development through the provision of educational, health, nutritional, social and other services to enrolled children and families. (Id. ¶ 3.)

This action involves two meetings that were organized by OHS within HHS. The meetings were held on March 4-5, 2008 and March 25-26, 2008, at the Hotel Palomar in Arlington, Virginia, and included OHS staff and experts in various fields pertinent to the Head Start program.*fn1 (Id. ¶ 9.) The purpose of the meetings was to permit OHS staff to fulfill a statutory mandate to consult with experts in relevant fields prior to proposing changes to Head Start's performance standards for its agencies and grantees. (Id. ¶ 10.) The Improving Head Start for School Readiness Act of 2007 directed HHS to modify, as necessary, Head Start program performance standards. See 42 U.S.C. § 9836a(a)(1). In light of the Act, OHS commenced work on proposed modifications to performance standards, which will ultimately be subject to notice and comment rulemaking procedures. (Id. ¶ 23.) In developing these modifications, however, the Act required HHS to first "consult with experts in the fields of child development, early childhood education, child health care, family services (including linguistically and culturally appropriate services to non-English speaking children and their families), administration, and financial management, and with persons with experience in the operation of Head Start programs . . . ." 42 U.S.C. § 9836a(a)(2)(A). The experts who attended the March 2008 performance standards meetings were experienced in the fields identified in the statute, with those attending the latter meeting having experience in these fields and their specific applications to tribal areas. (Brown Decl. ¶ 9.)

OHS invited approximately 50 experts to attend the meetings in order to "help inform the Federal staff of the 'state of the art' in areas relevant to Head Start." (Id. ¶¶ 13-14, Ex. A.) Conference attendees were informed that the agency was interested in hearing their answers to such questions as:

What are the most significant advances in your field?

What do you consider to be best practices in your field?

If you were developing or amending standards in your field, what would they look like?

Where has Head Start excelled in delivering services to children and families and where could we do better?

How can the current standards be improved to allow for more clarity, to improve collaboration, and to best support services to children and families?

(Id. ¶ 14, Ex. A.) OHS agreed to pay the travel costs of attendees who resided more than 50 miles outside of downtown Washington, D.C., as well as hotel charges, a per diem for meals, and a $200 per day honorarium to all attendees. (Id. ¶ 16, Ex. B.)

According to the meeting agendas, which were essentially identical, each meeting lasted for two full days and consisted of a brief welcome and overview of the meeting, overview of Head Start reauthorization changes and current program performance standards, and large and small group discussions. (See id. Exs. C, D.) During the group discussions, the expert attendees shared their personal views on questions regarding issues applicable to Head Start, including the appropriate quality and outcome measures in the areas of education, health services, nutrition, and assessment; the attendant costs to Head Start grantees of imposing rigorous standards; and whether standards should be tied to what is customary and usual in state licensing, health, and other requirements. (Id. ¶ 18, Exs. C, D.) The meeting agenda provided the only structure or organization to the meetings. (Id. ¶ 18.) Moreover, the meetings constitute the only occasion on which these two groups of experts were ever convened. (Id.) No reports or other documents were generated as a result of the meetings other than participants' notes. (Id. ¶ 21.)

On February 28, 2008, plaintiff sent a letter to Patricia Brown, Acting Director of OHS, stating that it had been advised that OHS planned to "hold a meeting next week at which it will seek the advice and recommendations of a group of private individuals concerning a massive revision of the Head Start performance standards." (Compl. ΒΆ 17, Ex. A.) Plaintiff contended that the group was an advisory committee under FACA and, as such, sought information about the meeting and a copy of the charter for the group as required by FACA. (Id.) In response, Brown sent a letter in which she claimed that the meeting was not covered by ...

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