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9a92f39e-48f7-4204-9809-1a4eda144de4 | .13, its interpretation applies equally to the identical phrase in § 701(b)(1). See Ralpho v. Bell, 569 F.2d 607, 616 & n.54 (D.C. Cir. 1977) (citing Soucie, among other authorities, in concluding that the Micronesian Claims Commission is an “agency” under § 701(b)(1)); Flaherty v. Ross, 373 F. Supp. 3d 97, 104 & n.2 (D.D.C. 2019); see also Pl.’s Reply at 6 & n.1, ECF No. 35 | Electronic_Privacy_Information_2020-06-01.txt |
728e5db1-3400-45d7-9f5e-3b9f747e67af | . This accords with the canon that a phrase—here, “authority of the Government”—“is presumed to bear the same meaning throughout a text.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012). Thus, under Soucie, the touchstone of “agency” status under § 701(b)(1) is the exercise of “substantial independent authority | Electronic_Privacy_Information_2020-06-01.txt |
4123b495-ecd4-40e9-843e-ac886765889d | .” 8 necessarily qualify as an “authority of the Government” under § 551(1) and § 701(b)(1). See id. at 583–84. Congress thus allowed for something to be an “agency” under § 552(f)(1) but not an “agency” under § 551(1) or § 701(b)(1). In other words, because of the 1974 amendment, all APA agencies are FOIA agencies, but not vice-versa. The Commission is precisely this sort of FOIA-only agency | Electronic_Privacy_Information_2020-06-01.txt |
4f3f6487-4688-47dc-9373-e0517e752dd9 | . The Court’s previous opinion got us halfway to this conclusion, since it held that the Commission is an “agency” under § 552(f)(1). Any impression conveyed that the Commission is also an “agency” under § 551(1) and § 701(b)(1) was dicta. Energy Research was the template for the Court’s opinion | Electronic_Privacy_Information_2020-06-01.txt |
b3220903-5696-424e-9298-c6a87407d9fb | . It held that the Defense Nuclear Facilities Safety Board was an “agency” under FOIA because the Board’s organic statute called it an “establishment in the executive branch,” one of the categories in § 552(f)(1). Id. at 582–83. And there was “nothing to indicate that Congress intended to excuse the Board from complying with FOIA.” Id. at 583. That was the end of the matter | Electronic_Privacy_Information_2020-06-01.txt |
a584f08e-533c-4589-b70c-762a676a2ed3 | . For entities that fit into one of the § 552(f)(1) categories, Soucie’s functional test determines agency status only if the entity is in the White House. See id. at 584 (citing Crooker v. Office of the Pardon Attorney, 614 F.2d 825, 828 (2d Cir. 1980)). The Board was not in the White House, so the functional test was irrelevant to its status as an “agency” under § 552(f)(1). See id. at 582–84 | Electronic_Privacy_Information_2020-06-01.txt |
b5366396-5f5f-44d1-ac16-c1b7d36a1b33 | . Then in dicta, the court opined that the Board exercised “substantial independent authority” and thus was also a FOIA “agency” under Soucie’s functional test. Id. at 584–85. This Court’s previous opinion followed Energy Research’s analytical steps. As with the Board, Congress made the Commission an “establishment in the executive branch,” one of the categories in § 552(f)(1). NSCAI, 419 F. Supp | Electronic_Privacy_Information_2020-06-01.txt |
9d6e8906-e989-4122-8b5e-a73a601f4531 | . 3d at 86. Also like the Board, nothing in the Commission’s organic statute suggested that Congress intended to excuse it from FOIA. Indeed, 9 the opposite was true, since the 2019 NDAA excused a different entity from FOIA but did exempt the Commission. Id. at 86–87. And Soucie did not apply because—again like the Board—the Commission is not in the White House. Id. at 89 | Electronic_Privacy_Information_2020-06-01.txt |
4b84c242-e26d-4cde-8af5-a722d5da4e5f | . “The text of § 552(f)(1)” was therefore “dispositive” of the Commission’s status as a FOIA “agency.” Id. Then, relying on the dicta from Energy Research, the Court suggested in passing that the Commission exercises “substantial independent authority” and thus could meet Soucie’s functional test, too. Id. at 89–90. Still, the Court made clear that this functional test was “not relevant.” Id | Electronic_Privacy_Information_2020-06-01.txt |
242a3901-edd9-469c-a681-d323042ccd78 | . at 90. So, just as in Energy Research, its application of the functional test was dicta. And because this discussion relied on the dicta from Energy Research, this was dicta upon dicta. The Government is thus imprecise when it asserts as the “law of the case” that the Commission is an “agency.” Defs.’ Mem. at 16 n.2 | Electronic_Privacy_Information_2020-06-01.txt |
23415a39-53ca-4129-8e55-ccf5b916bf82 | . This assertion—without reference to specific statutory provisions—is only half correct. Under the law-of-the-case doctrine, “the same issue presented a second time in the same case should lead to the same result.” LaShawn A. v. Berry, 87 F.3d 1389, 1393 (D.C. Cir. 1996). Dicta is not part of the law of the case. Nat’l Souvenir Ctr., Inc. v. Historic Figures, Inc., 728 F.2d 503, 511 (D.C. Cir | Electronic_Privacy_Information_2020-06-01.txt |
dd3f6c05-c7fc-4506-becc-58cd5277fc3a | . 1984). By these standards, the law of this case is that the Commission is an “agency” under § 552(f)(1), because that was the dispositive point in the Court’s first opinion. But any dicta— including that the Commission also met Soucie’s functional test—is not the law of this case | Electronic_Privacy_Information_2020-06-01.txt |
03ccba90-0c4e-44e5-93a8-4cce4b88a557 | . Unlike last time, it is now necessary to decide whether the Commission is an “agency” under § 701(b)(1)—as noted, the Court’s jurisdiction over EPIC’s APA claims turns on this. The Government implicitly concedes that the Commission is an agency under § 701(b)(1), since it mistakenly reads the Court’s previous opinion as having held this. See Defs.’ Mem. at 14, 16 10 n.2 | Electronic_Privacy_Information_2020-06-01.txt |
2ac90498-3c9b-49ac-a469-5302bc858566 | . But the Court cannot simply adopt this concession. “[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). The Court thus has “an independent obligation to determine whether subject-matter jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) | Electronic_Privacy_Information_2020-06-01.txt |
000e82b3-05cf-4b5b-bf6a-6933af5ada7e | . And upon closer examination, the Court finds that the Commission is not an agency under § 551(1) or § 701(b)(1). The D.C. Circuit’s cases highlight two factors that are central to whether an entity wields “substantial independent authority”: investigative power and authority to make final and binding decisions. Consider first Soucie | Electronic_Privacy_Information_2020-06-01.txt |
ca42aa94-aad3-469c-aed3-32db18c302da | . The Circuit held that the Office of Science and Technology (“OST”) was an agency because, beyond advising the President, it had the “independent function of evaluating federal programs.” 448 F.2d at 1075. Critically, in carrying out this “independent function,” the OST wielded “portions” of Congress’s own “investigatory power.” Id. at 1075 & n.27 | Electronic_Privacy_Information_2020-06-01.txt |
16d2c82b-32cf-482b-afbc-500d1dfc280a | . In describing this power, the court cited McGrain v. Daugherty, 273 U.S. 135 (1927), which upheld the Senate’s authority to compel testimony. Id. at 180. The next decision introduced another factor: whether an entity has “formal decision- making power.” Grumman Aircraft Eng’g Corp. v. Reneg. Bd., 482 F.2d 710, 715 (D.C. Cir. 1973), rev’d on other grounds, 421 U.S. 168 (1975) | Electronic_Privacy_Information_2020-06-01.txt |
242b5de4-f743-4903-a405-0523c2fcd8dd | . In holding that “Regional Boards” were “agencies” under § 551(1), the court emphasized that “in many cases” they were “empowered to make final decisions not even reviewable by the [Renegotiation] Board.” Id. at 714–15. This “authority in law to make decisions” was the “important consideration” when the court held that “initial review groups” (“IRGs”) were not “agencies” under § 551(1). Wash | Electronic_Privacy_Information_2020-06-01.txt |
59ef8f04-9d2e-4998-835a-64cefb34ecfe | . Research Project, Inc. v. Dep’t of Health, Educ. & Welfare, 504 F.2d 238, 246, 248 (D.C. Cir. 1974). The National Institute of Mental Health (“NIMH”) used IRGs to review grant 11 applications, but the authority to make “final and binding” decisions rested with the NIMH, not the IRGs. Id. at 248 & n.15. It did not matter that the NIMH “may be greatly influenced” by an IRG’s “expert view.” Id | Electronic_Privacy_Information_2020-06-01.txt |
fa3f2840-0493-46ab-90da-46401336eeab | . at 248. Given the functions that IRGs were “empowered by law to perform,” they did not wield “substantial independent authority.” Id. at 247–48. Two months after Washington Research Project, Congress enacted the 1974 amendment that expanded FOIA’s definition of “agency.” See Pub. L. No. 93-502, § 3 (codified at 5 U.S.C. § 552(f)(1)) | Electronic_Privacy_Information_2020-06-01.txt |
4783927b-8dfe-45dd-83bf-d116b85c74db | . The expanded definition encompasses entities in “the Executive Office of the President.” Id. But a conference report suggests that FOIA applies to these entities only if they wield “substantial independent authority” under Soucie. See NSCAI, 419 F. Supp. 3d at 88 (citing H.R. Conf. Rep. No. 93-1380, at 15 (1974)) | Electronic_Privacy_Information_2020-06-01.txt |
b6a18288-504c-4da3-afca-990c6fdad423 | . This conference report has spawned a series of cases analyzing whether units in the White House exercise “substantial independent authority.”4 These cases echo the importance of decision-making authority. See, e.g., Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042–43 (D.C. Cir | Electronic_Privacy_Information_2020-06-01.txt |
a6c09472-3b5b-48a8-a4be-8869286df09f | . 1985) (holding that the Council on Economic Advisers, which has a duty “to appraise federal programs relative to a particular statutory policy and make recommendations to the President in that regard” but has no authority to “issue regulations for procedures based on the appraisals,” is not an agency under Soucie’s functional test) | Electronic_Privacy_Information_2020-06-01.txt |
0442d304-3b12-488b-b68c-c7f7e6f21064 | . To be sure, “much of the focus” in these White House cases “was on the independence aspect” of “substantial independent authority.” Dong v. Smithsonian Inst., 125 F.3d 877, 881 4 See CREW v. Office of Admin., 566 F.3d 219, 220 (D.C. Cir. 2009); Armstrong v. Exec. Office of the President, 90 F.3d 553, 558 (D.C. Cir. 1996); Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995); Meyer v | Electronic_Privacy_Information_2020-06-01.txt |
4f551fa8-a992-43b8-87e7-331ca3fc9be2 | . Bush, 981 F.2d 1288, 1297 (D.C. Cir. 1993); Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1043 (D.C. Cir. 1985); Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980); Sierra Club v. Andrus, 581 F.2d 895, 901–02 (D.C. Cir. 1978), rev’d on other grounds, 442 U.S. 347 (1979). 12 (D.C. Cir. 1997) | Electronic_Privacy_Information_2020-06-01.txt |
0c0b6116-faf5-4911-845d-9298c1416e0e | . The goal was to identify the White House units closest to the President, for imposing FOIA on them would be “a potentially serious congressional intrusion into the conduct of the President’s daily operations.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 226 (D.C. Cir. 2013); see NSCAI, 419 F. Supp. 3d at 90 | Electronic_Privacy_Information_2020-06-01.txt |
132a52b4-3506-4d67-94fa-82677cdcbdfe | . But of course, many entities not in the White House are independent of the President, so for them, the “authority” prong is the sticking point. See Dong, 125 F.3d at 881. On this, Dong is particularly instructive. Statutory delegation of “authority” is key. See id. at 882. And “the requisite type of authority” is the “final and binding” kind. Id. at 881 (citing Wash. Research Project, 504 F | Electronic_Privacy_Information_2020-06-01.txt |
985aa2ba-4569-44d6-a8b7-d3d02e9e694e | .2d at 248 n.15). More, the requirement of “substantial” authority suggests that the entity should be at the “center of gravity in the exercise of administrative power.” Id. at 882 (quoting Lombardo v. Handler, 397 F. Supp. 792, 796 (D.D.C. 1975), aff’d, 546 F.2d 1043 (D.C. Cir. 1976)) | Electronic_Privacy_Information_2020-06-01.txt |
78a8dd0e-56e8-46f0-b4b7-c9e261f81f1c | . On this basis, the National Academy of Sciences was not an agency “despite the fact that it possessed the apparent authority . . . to veto the Environmental Protection Agency’s suspension of auto emission standards.” Id. (citing Lombardo, 397 F. Supp. at 794) | Electronic_Privacy_Information_2020-06-01.txt |
d03c3e3b-8aea-4435-831d-276d8c55a260 | . Applying these principles, Dong held that the Smithsonian is not an “agency” under § 551(1) because it “does not make binding rules of general application or determine rights and duties through adjudication” and “issues no orders and performs no regulatory functions.” Id. So too here | Electronic_Privacy_Information_2020-06-01.txt |
91d767f8-808b-4e27-9cd4-77b6907671a7 | . The Commission’s statutory duties are to carry out a review and to report to the President and Congress on its findings and recommendations. Pub. L. No. 115-232, § 1051(b)–(c). Congress thus did not give the Commission the sort of “final and binding” decision-making authority that the case law contemplates. See Dong, 125 F.3d at 881; Wash. 13 Research Project, 504 F.2d at 248 & n.15 | Electronic_Privacy_Information_2020-06-01.txt |
8d9450c3-8091-4f52-9c84-650399c2b3ae | . Much less did Congress place the Commission at the “center of gravity in the exercise of administrative power.” Dong, 125 F.3d at 882. To be sure, the Commission’s “review” entails a degree of “investigation.” It has received “more than 100 briefings” from agencies and Members of Congress, covering topics like “the status of the U.S. government’s artificial intelligence strategies.” Compl | Electronic_Privacy_Information_2020-06-01.txt |
b3e92484-941f-4898-98f6-4a22e6c642f7 | . ¶, 46, 64, 68, 70. But there is no suggestion—either in the statute or in the record—that the Commission has any subpoena or contempt authority, the sort of powers incident to Congress’s “broad power of inquiry.” Soucie, 448 F.2d at 1075 & n.27; see McGrain, 273 U.S. at 168–69, 180. Given these considerations, the Commission does not exercise “substantial independent authority | Electronic_Privacy_Information_2020-06-01.txt |
e4223adc-893e-4292-b342-58f3f3b741c4 | .” Accord Flaherty v. Ross, 373 F. Supp. 3d 97, 106–10 (D.D.C. 2019).5 The upshot is that the Commission is an “agency” under § 552(f)(1) but not an “agency” under § 551(1) or § 701(b)(1), exactly the sort of entity Congress intended to capture when it expanded FOIA’s definition of “agency” in 1974. See Energy Research, 917 F | Electronic_Privacy_Information_2020-06-01.txt |
be571a8a-b1f9-4452-81b7-b3bd51d29177 | .2d at 583 (“Through [the] words [“establishment in the executive branch”], Congress sought to encompass entities that might have eluded the APA’s definition in § 551(1)[.]”). But because the Commission is not an “agency” under § 701(b)(1), the Court must dismiss EPIC’s APA claims (Counts II, III, and V) for lack of jurisdiction. See Trudeau, 456 F.3d at 187 & n.13 | Electronic_Privacy_Information_2020-06-01.txt |
b1a7f727-6902-4ca9-b1df-77e45339b37f | . 5 Dicta in Energy Research supports this conclusion. Congress authorized the Nuclear Safety Board to “conduct hearings,” “compel testimony,” and “require the production of documents.” 917 F.2d at 582. It thus “ha[d] at its disposal the full panoply of investigative powers commonly held by other agencies of government.” Id. at 584 | Electronic_Privacy_Information_2020-06-01.txt |
aae5ebde-68e5-4752-83d4-1886ce74d0cc | . The Board also had “the additional authority to impose reporting requirements on the Secretary of Energy.” Id. at 585. The Commission has no analogous powers. 14 B. That leaves Counts I and IV; EPIC labels both as “Violation of the FACA.” Compl. at 28, 31. EPIC “does not assert that it has a cause of action under” FACA. Pl.’s Mem. at 30 n.2; see, e.g., EPIC v. Drone Advisory Comm., 369 F. Supp | Electronic_Privacy_Information_2020-06-01.txt |
f8048242-69fb-44bd-9987-6ba3a95df922 | . 3d 27, 36–38 (D.D.C. 2019) (concluding that FACA does not confer a private right of action). Instead, it seeks mandamus relief based on alleged violations of FACA. See Compl. ¶, 118, 136, 139; Pl.’s Mem. at 28–30, 30 n.2. Even though sovereign immunity bars EPIC’s claims under the APA, this immunity does not bar mandamus relief. See Swan v. Clinton, 100 F.3d 973, 981 & n.4 (D.C. Cir. 1996) | Electronic_Privacy_Information_2020-06-01.txt |
786cb3db-166c-4359-bb25-49ee45446cc4 | . The mandamus statute provides that “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 | Electronic_Privacy_Information_2020-06-01.txt |
371486b0-4c1c-48b4-bfe4-1f123d0043fa | . It is settled that “[i]f a plaintiff seeks a writ of mandamus to force a public official to perform a duty imposed upon him in his official capacity . . . no separate waiver of sovereign immunity is needed.” Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996) | Electronic_Privacy_Information_2020-06-01.txt |
02a09aa2-0e01-4449-a040-03f57fc4e93e | .6 Whether this immunity exception applies “depends upon whether the Government has a duty” to comply with the “open meetings” and “public records” requirements in FACA. Id.; see Compl. ¶, 136 (citing 5 U.S.C. app. 2 § 10(a)(1)–(2), (b)). So “the question of jurisdiction” under the mandamus statute “merges with the question on the merits.” Wash. Legal Found., 89 F.3d at 902 | Electronic_Privacy_Information_2020-06-01.txt |
d842ea8a-01c1-4c4d-86f7-d480935b2278 | . And the merits question here is whether the Commission is an “advisory committee” under 5 U.S.C. app. 2 § 3(2), because if it is, then it must comply with FACA’s requirements. See 5 U.S.C. app. 2 §§ 4(a), 10. To this question the Court now turns | Electronic_Privacy_Information_2020-06-01.txt |
5d537269-56da-4761-9cfc-746a48a9f29c | . 6 The Defendants listed for Counts I and IV are the Commission and two officials—Eric Schmidt, its Chairman, and Ylli Bajraktari, its Executive Director. Compl. at 28, 31. 15 Congress enacted FACA in 1972 to provide a framework for the many boards, councils, and commissions that advise the Executive Branch. See Pub. Citizen v. DOJ, 491 U.S. 440, 445–46 (1989) | Electronic_Privacy_Information_2020-06-01.txt |
f289d524-9885-446d-958e-2c47a67c589d | . It found that these bodies are “a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government.” 5 U.S.C. app. 2 § 2(a). And it saw a need to keep the public “informed” about their “activities.” Id. § 2(b)(5). To that end, FACA calls for open meetings. A committee’s meetings “shall be open to the public.” Id. § 10(a)(1) | Electronic_Privacy_Information_2020-06-01.txt |
36395cf5-925f-4af6-8efd-44c0bfeb99f0 | . “[T]imely notice” of these meetings “shall be published in the Federal Register.” Id. § 10(a)(2). This transparency extends to records, too. “Subject to [5 U.S.C. § 552 (FOIA)],” all documents “which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying . . . until the advisory committee ceases to exist.” Id. § 10(b) | Electronic_Privacy_Information_2020-06-01.txt |
b0ff69cb-f391-4720-b4cb-61550533c99b | . Unlike FOIA, this provision looks forward. It requires committees to take affirmative steps to make their records are public, even absent a request. FACA’s definition of “advisory committee” has four parts. First, it includes “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof.” Id. § 3(2) | Electronic_Privacy_Information_2020-06-01.txt |
dbeca7bd-e003-4400-ba72-27f7c6a198fc | . Second, it must be “established by statute or reorganization plan,” “established or utilized by the President,” or “established or utilized by one or more agencies.” Id. Third, it must be “established” or “utilized” “in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” Id | Electronic_Privacy_Information_2020-06-01.txt |
684af36a-29e8-4ad7-b177-58c8803da58e | . Fourth, the definition excludes “any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.” Id. The Court agrees with EPIC that the Commission meets this definition. Start with the text of the 2019 NDAA, the Commission’s organic statute. Congress established a “Commission.” Pub. L. No. 115-232, § 1051(a)(1) | Electronic_Privacy_Information_2020-06-01.txt |
c696c15f-9ce2-4e1c-b9ea-66da6f73b399 | . Its mandate is to “consider the 16 methods and means necessary to advance the development of artificial intelligence . . . to comprehensively address the national security and defense needs of the United States.” Id. § 1051(b)(1). And it must report “to the President and Congress” its “findings” and “recommendations . . | Electronic_Privacy_Information_2020-06-01.txt |
d97ff92b-0afd-4669-b80d-e7f010e7ddda | . for action by the executive branch and Congress related to artificial intelligence.” Id. § 1051(c); see also 2020 NDAA, Pub. L. No. 116-92, § 1735(c). These words fit the definition of “advisory committee” like a glove. From a purely commonsense standpoint, is the National Security Commission on Artificial Intelligence an “advisory” commission? Of course it is. Congress created a “commission | Electronic_Privacy_Information_2020-06-01.txt |
ae2f2596-66d7-471a-8b79-248291521a90 | .” 5 U.S.C. app. 2 § 3(2). It is “established by statute” and “utilized by the President.” Id. And since it provides “findings” and “recommendations” to the President, it is “established” and “utilized” “in the interest of obtaining advice or recommendations for the President.” Id | Electronic_Privacy_Information_2020-06-01.txt |
a76772f8-1af0-476d-b748-56bded8fd465 | . More, Congress noticeably declined to exempt the Commission from FACA, even though it carved out FACA exemptions elsewhere in the same law. The 2019 NDAA creates the Cyberspace Solarium Commission but declares that “[t]he provisions of the Federal Advisory Committee Act . . . shall not apply to the activities of [this] Commission.” Pub. L. No. 115-232, § 1652(m)(1) | Electronic_Privacy_Information_2020-06-01.txt |
427b695a-91f0-420f-bb0e-2e0c26498159 | . The law also states that “[s]ubsections (a)(1), (a)(3), and (b) of section 10 and sections 11, 13, and 14 of the Federal Advisory Committee Act . . . shall not apply” to a body called “the Emerging Technology and Research Advisory Committee.” Id. § 1758(f)(5). The Court likewise found the lack of an exemption significant in concluding that the Commission is subject to FOIA. See NSCAI, 419 F | Electronic_Privacy_Information_2020-06-01.txt |
78f4f242-5da4-4c46-b764-2f2b2275efbf | . Supp. 3d at 86–87. The 2019 NDAA excuses the Cyberspace Solarium Commission from FOIA, see Pub. L. No. 115-232, § 1652(m)(2), but does not excuse the AI Commission from FOIA. So too for FACA. 17 The Government protests that “no canon of statutory construction provides that the Court should assign weight to [the] absence” of an “explicit exemption.” Defs.’ Reply at 17, ECF No. 33 | Electronic_Privacy_Information_2020-06-01.txt |
1831a06e-c62e-4836-b195-67b9d388e752 | . But here, that is wrong, since Congress elsewhere carved out exemptions. “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (cleaned up) | Electronic_Privacy_Information_2020-06-01.txt |
2770c39b-1dd2-4936-b8b3-4e47243f23a5 | . The Government also points to one example—from a different law—in which Congress made clear that FACA applies. Defs.’ Reply at 17–18; see Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (“Pandemic Act”), Pub. L. No. 116-22, § 505(d), 133 Stat. 905, 952 (“The Federal Advisory Committee Act . . | Electronic_Privacy_Information_2020-06-01.txt |
826eda26-4dde-4cb4-b946-a976cb7f7d19 | . shall apply to the activities and duties of the [Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria].”). Based on this example, the Government contends that “it is at least as telling that Congress also did not explicitly make the Commission an advisory committee.” Defs.’ Reply at 17. Not quite | Electronic_Privacy_Information_2020-06-01.txt |
db0df8c3-beaa-410e-b545-53088b6b7673 | . Congress formed the Commission using language that tracks FACA’s definition of “advisory committee.” That was enough to “make” the Commission an advisory committee. It is a fair point that Congress did not declare in so many words that “FACA shall apply” to the Commission. But a weak one. The one example the Government cites was in the Pandemic Act, not the 2019 NDAA | Electronic_Privacy_Information_2020-06-01.txt |
d8ca16b6-20b4-4774-86fe-063b9e60f868 | . The 2019 NDAA itself contains no examples of Congress saying that “FACA shall apply.” It contains only examples of Congress saying that “FACA shall not apply.” Yet the NDAA does not use this language for the Commission. This reinforces the conclusion that Congress made the Commission an “advisory committee.” See Russello, 464 U.S. at 22–23 | Electronic_Privacy_Information_2020-06-01.txt |
8bc79aca-e185-4af0-804b-a40ba982699e | . 18 EPIC also points out that Congress passed on a second chance to exempt the Commission from FACA. Pl.’s Mem. at 19–20. The 2020 NDAA extended the life of the Commission and gave it some new reporting deadlines, but it said nothing about FACA. See Pub. L. No. 116-92, § 1735. And once again, Congress exempted a different entity from FACA in the same law. See id | Electronic_Privacy_Information_2020-06-01.txt |
ec05d909-1272-4f30-bc8d-449e99d0fda9 | . § 6433(a) (“The Federal Advisory Committee Act . . . shall not apply to the [advisory board for the National Reconnaissance Office].”) | Electronic_Privacy_Information_2020-06-01.txt |
6d2ddca7-6fb9-4a8d-8f1d-128cff99391c | . The Government responds that “there was no need to include a FACA exemption” in the 2020 NDAA because (1) Congress passed it after this Court ruled that the Commission is an “agency”; (2) Congress is presumed to know extant law; and (3) extant law holds that an “agency” cannot also be an “advisory committee.” Defs.’ Reply at 18 | Electronic_Privacy_Information_2020-06-01.txt |
6e498bc5-621f-43d2-81ae-372506bbe286 | . But even assuming Congress would note an interim ruling by a district court in ongoing litigation, this third premise is wrong—under extant law, at least some agencies can be advisory committees, and the Commission is case in point. See infra Section III.B.1. In short, the language that Congress used to create the Commission matches FACA’s definition of “advisory committee | Electronic_Privacy_Information_2020-06-01.txt |
d14b7dc6-ee7b-40a4-962b-81c8a6f4edc4 | .” And Congress twice declined to excuse the Commission from FACA, even though both laws carved out FACA exemptions for other entities. The Court thus concludes that the Commission is an “advisory committee” subject to FACA. The Government resists this conclusion on two overarching grounds. 1. Its primary contention is that the Commission, as an “agency,” cannot also be an “advisory committee | Electronic_Privacy_Information_2020-06-01.txt |
b8b2e3c5-9d9c-4bec-a737-40bf4472b188 | .” Defs.’ Mem. at 8. This argument fails because the Government’s authorities do not support the categorical principle that all agencies cannot be advisory committees. At most they suggest that a § 551(1) agency cannot be an advisory committee. 19 That is significant, because the Commission is an “agency” under § 552(f)(1) but not an “agency” under § 551(1). See supra Section III.A | Electronic_Privacy_Information_2020-06-01.txt |
b66894c5-175b-4ea6-bcbc-5f82eae8727f | . The Government cites no case holding that this sort of agency cannot be an advisory committee. To the contrary, Congress has devised a statutory scheme that allows § 552(f)(1) agencies like the Commission to be advisory committees subject to FACA. The Government’s notion of a categorical principle stems mainly from a series of decisions in this District. Defs.’ Mem. at 14; Defs.’ Reply at 9 n.2 | Electronic_Privacy_Information_2020-06-01.txt |
6d58011a-bed5-4616-8324-c2c15d72e0c5 | . The first was Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973), which stated that “an advisory committee is not an ‘agency.’” Id. at 799. Gates’s first rationale for this conclusion was that FACA “utilizes the definition of agency contained in . . . 5 U.S.C. § 551(1)” and “contains a separate and distinct definition of an ‘advisory committee.’” Id. at 798–99 | Electronic_Privacy_Information_2020-06-01.txt |
d27e21cc-d756-46f0-8bc7-2b34e93a1ff6 | . It is true that FACA defines “advisory committee” in § 3(2) and separately defines “agency” in § 3(3). 5 U.S.C. app. 2 § 3(2), (3). But nothing in section 3 excludes the possibility that an “advisory committee” can fit within the definition of “agency” and vice-versa | Electronic_Privacy_Information_2020-06-01.txt |
44b42034-6af9-4ca9-b2fe-7213593a6ec4 | . And certainly, agencies are commonly “established by statute,” “utilized by the President,” or even “utilized” by other agencies “in the interest of obtaining advice or recommendations.” Id. § 3(2) (definition of “advisory committee”). Indeed, many statutes list separate definitions that are not necessarily mutually exclusive. Pl.’s Reply at 11, ECF No. 35. Take 5 U.S.C | Electronic_Privacy_Information_2020-06-01.txt |
a1dc6412-8233-4ac2-951d-0f594ec577e9 | . § 552a, which defines “individual” as “a citizen of the United States” and separately defines “Federal personnel” as “officers and employees of the Government.” 5 U.S.C. § 552a(a)(2), (a)(13). A “citizen of the United States” and “officers and employees of the Government” are of course not mutually exclusive concepts, even though they appear in separate definitions. Likewise here | Electronic_Privacy_Information_2020-06-01.txt |
f596e164-b7a6-41b0-b115-bd0c4519d8a7 | . 20 In any event, Gates is distinguishable because it says nothing about entities—like the Commission—that are agencies under § 552(f)(1) but not § 551(1). And it could not have. Gates was decided in 1973, before Congress added § 552(f)(1) in 1974. FACA defines “agency” to have “the same meaning as in section 551(1) of title 5.” 5 U.S.C. app. 2 § 3(3). And FACA does not mention § 552(f)(1) | Electronic_Privacy_Information_2020-06-01.txt |
e7575c8e-186d-4e52-91ec-baaaac6e3011 | . So even if Gates is right that FACA’s definitions of “advisory committee” and “agency” are mutually exclusive, this just means an “agency” under § 551(1) cannot be an advisory committee. Nothing in FACA or Gates prevents a § 552(f)(1) agency from also being an advisory committee. This point—that the Commission is an “agency” under § 552(f)(1) but not § 551(1)—is key for another reason | Electronic_Privacy_Information_2020-06-01.txt |
1c1e1a30-0d69-4997-8ac1-0b41bdef48aa | . Under Soucie, the touchstone of agency status under § 551(1) is “substantial independent authority.” Gates, Washington Research Project, and the DOJ’s Office of Legal Counsel (“OLC”) suggest that entities wielding “substantial independent authority” cannot be “advisory” committees | Electronic_Privacy_Information_2020-06-01.txt |
98eab6ba-5a8e-4b82-9c08-1c6d918ceb6c | . But even if true, this point is irrelevant here, since the Commission does not wield “substantial independent authority.” See supra Section III.A. Specifically, Gates cites Soucie’s holding that § 551(1) “confers agency status on any administrative unit with substantial independent authority.” 366 F. Supp. at 799 | Electronic_Privacy_Information_2020-06-01.txt |
5246e481-a6b5-4f3c-8ec0-bce58aca3d66 | . The committee in Gates was “advisory only” and “possesse[d] no ‘substantial independent authority.’” Id. This reasoning suggests that the concept of “advisory” in FACA and the concept of “substantial independent authority” in § 551(1) are mutually exclusive. The D.C | Electronic_Privacy_Information_2020-06-01.txt |
06048465-b9a9-4db5-a667-f22f68c718d6 | . Circuit echoed this suggestion when, applying Soucie’s “substantial independent authority” test, it opined that “IRGs are advisory committees . . . and are not agencies [under § 551(1)].” Wash. Research Project, 504 F.2d at 246–47 | Electronic_Privacy_Information_2020-06-01.txt |
597f41e7-2771-476f-a268-e834d9fcc35a | . This decision, like 21 Gates, came before Congress enacted § 552(f)(1), so it could not have been drawing any conclusions about entities that are agencies under § 552(f)(1) but not § 551(1).7 To be sure, the OLC has opined that entities wielding substantial independent authority— i.e., § 551(1) agencies—cannot be advisory committees. “FACA,” in its view, “is predicated on the assumption . . | Electronic_Privacy_Information_2020-06-01.txt |
30902c77-4d99-4471-81a6-d58bf3a743a6 | . that advisory committees give advice and recommendations, whereas agencies are operating arms of government characterized by ‘substantial independent authority in the exercise of specific functions.’” Disclosure of Advisory Comm. Deliberative Materials, 12 Op. O.L.C. 73, 81 (1988). This “statutory distinction,” it concludes, signifies that “advisory committees are not agencies.” Id | Electronic_Privacy_Information_2020-06-01.txt |
abd1af45-7d2e-407c-b56a-e124a0795fca | . It is not entirely clear that “advisory” and “substantial independent authority” are mutually exclusive concepts. But the Court need not resolve this, because the Commission does not wield “substantial independent authority” and is not an agency under § 551(1). See supra Section III.A | Electronic_Privacy_Information_2020-06-01.txt |
d6439bdd-50bd-429e-a417-dae49a89c402 | . The exclusive focus on § 551(1) in Gates, Washington Research Project, and the OLC opinion does not speak to whether an entity like the Commission—an “agency” only under § 552(f)(1)—can be an advisory committee. After Gates, the next decision to conclude that “an advisory committee cannot have a ‘double identity’ as an agency” was Wolfe v. Weinberger, 403 F. Supp. 238, 242 (D.D.C. 1975) | Electronic_Privacy_Information_2020-06-01.txt |
25fa4f9f-d185-4fe3-af51-d7f01929e720 | . 7 Though Washington Research Project noted that “IRGs are advisory committees,” 504 F.2d at 246, it also stated that “[w]hether the IRG is subject to the disclosure requirements of [FACA] is not a question before this court,” id. at 249 n.15. So it is not even clear that the court was distinguishing § 551(1) agencies from FACA advisory committees. See id. at 248 & n.15 | Electronic_Privacy_Information_2020-06-01.txt |
3db69b64-ec98-496a-b2c8-da6446c9d41a | . The Government also cites Forsham v. Califano, 587 F.2d 1128 (D.C. Cir. 1978), for the proposition that agencies cannot be advisory committees. Defs.’ Mem. at 21, 23; Defs.’ Reply at 12. But Forsham merely quoted the language from Washington Research Project that “the IRGs are advisory committees . . . and are not agencies,” 587 F.2d at 1135, and it nowhere mentions § 552(f)(1) | Electronic_Privacy_Information_2020-06-01.txt |
665408da-22f0-4ae5-8c61-0d80e856881f | . So it provides no more support for the Government’s position than Washington Research Project itself | Electronic_Privacy_Information_2020-06-01.txt |
38371f43-8ce9-40cf-b852-dc3fdb4afa81 | . 22 It gave another rationale: “the definition of ‘advisory committee’ in [FACA] specifically excludes ‘any committee which is composed wholly of fulltime officers or employees of the Federal Government,’ thus providing further evidence that ‘agency’ and ‘advisory committee’ were not meant by Congress to be congruent concepts.” Id. (quoting 5 U.S.C. app. 2 § 3(2) (1972)) | Electronic_Privacy_Information_2020-06-01.txt |
a98514ad-e1d3-47cb-9210-df932dc40446 | . The implicit assumption in this rationale is that all agencies are “composed wholly of fulltime officers or employees of the Federal Government.” But Wolfe gave no basis for that assumption, nor does the Government provide any. See Defs.’ Reply at 12–13. The better approach is simply to ask if an entity consists wholly of full-time federal employees | Electronic_Privacy_Information_2020-06-01.txt |
7dd6c5be-0539-4a77-8846-e3d356cc0764 | . If so, it is not an advisory committee, no matter if it is an agency. More, Wolfe is also outdated. At the time, the exclusion in § 3(2) was only for groups “composed wholly of full-time officers or employees.” Federal Advisory Committee Act, Pub. L. No. 92-463, § 3(2), 86 Stat. 770, 770 (1972) | Electronic_Privacy_Information_2020-06-01.txt |
7df4b28a-d1a3-4b9f-8fff-0324a61ad1df | . But now, the exclusion is for groups “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.” 5 U.S.C. app. 2 § 3(2) (2018) (emphasis added); see Federal Advisory Committee Act Amendments of 1997, Pub. L. 105-153, § 2(a), 111 Stat. 2689, 2689. The Government here argues that the Commission—an agency—has only “permanent part-time” employees. Defs | Electronic_Privacy_Information_2020-06-01.txt |
708020cf-4786-4106-a188-2439a25426d8 | .’ Mem. at 20. So, by the Government’s own logic, Wolfe’s assumption no longer holds—at least some agencies do not consist of full-time employees. And the Government does not try to defend a modern version of Wolfe’s assumption: that all agencies consist wholly of full-time or permanent part-time employees. See id. at 21–22; Defs.’ Reply at 9, 12–13 | Electronic_Privacy_Information_2020-06-01.txt |
f2de6b4e-34ac-4f5e-a8f9-e0e81658d044 | . So there is no basis to conclude that Congress obliquely barred dual status through FACA’s employee-based exclusion. 23 And in any event, Congress made the Commission’s employees “temporary,” not “permanent,” see infra Section III.B.2, which shows that FACA’s employee-based exclusion does not encompass all agencies | Electronic_Privacy_Information_2020-06-01.txt |
4d499055-8677-4221-83db-98968f25905e | . In sum, Wolfe does not foreclose the possibility that something can—all at once—be an “agency” solely under § 552(f)(1), consist of “temporary” federal employees, and be an “advisory committee.” Three more recent cases likewise conclude that an advisory committee cannot have a “double identity” as an agency, but they do not expand on the reasoning from Gates or Wolfe. See Drone Advisory Comm | Electronic_Privacy_Information_2020-06-01.txt |
2c77f978-61ec-4540-aa38-974c3ca476e0 | ., 369 F. Supp. 3d at 41; Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 33 (D.D.C. 2011); Heartwood, Inc. v. U.S. Forest Serv., 431 F. Supp. 2d 28, 36 (D.D.C. 2006). None of these decisions mentions § 552(f)(1) much less considers whether something that is an “agency” under § 552(f)(1) but not § 551(1) can be an “advisory committee | Electronic_Privacy_Information_2020-06-01.txt |
17e8b3fd-3724-4505-9fc5-641263ee71fe | .” So they support the Government’s position no more than Gates or Wolfe. The Government next highlights complications that could arise if FOIA and FACA apply to the same entity. Defs.’ Mem. at 14–16. It asserts that FOIA and FACA impose “independent, mutually exclusive [disclosure] obligations.” Id. at 14 | Electronic_Privacy_Information_2020-06-01.txt |
32c014aa-45bf-483b-93c2-af8109032a67 | . The Government invites the Court to accept this premise and work backward from there to conclude that Congress could not have meant what it said in the 2019 NDAA when it made the Commission subject to both statutes. The Court declines this invitation | Electronic_Privacy_Information_2020-06-01.txt |
e68259f4-8905-44da-af47-07a2aad76e26 | . Even though FOIA and FACA have different disclosure requirements, the Court sees no conflict between those requirements as the Government has framed them. And even if there were a conflict, that would not be a license to ignore what Congress said | Electronic_Privacy_Information_2020-06-01.txt |
ff333134-e09b-4274-97af-f66d39dbb486 | . Because Congress, through the 2019 NDAA, made the Commission 24 subject to both FOIA and FACA, it will be incumbent on the parties and the Court to resolve any difficulties in the application of these statutes if that time comes.8 The Government claims it is a problem that FOIA and FACA “apply to different documents.” Defs.’ Mem. at 15. There are two arguments baked in here | Electronic_Privacy_Information_2020-06-01.txt |
fd4f14ab-b6bb-4543-a7b3-c09f56c3f931 | . First, the Government suggests that records of advisory committees cannot, by definition, be records of agencies. Id.; Defs.’ Reply at 7–8, 8 n.1. It cites Judicial Watch, Inc. v. Department of Energy, 412 F.3d 125 (D.C. Cir. 2005), which dealt with the records of employees that the Department of Energy (“DOE”) had detailed to the National Energy Policy Development Group (“NEPDG”). Id. at 132 | Electronic_Privacy_Information_2020-06-01.txt |
c8166e2d-2b39-48ec-9144-ecdda7874eec | . The Government quotes the court’s statement that “the records those employees created or obtained while on detail were those of the NEPDG, not those of the DOE, and hence not ‘agency records’ within the meaning of FOIA.” Id. It takes this to mean that the NEPDG’s records were not agency records because the NEPDG was an advisory committee. See Defs.’ Reply at 8 n.1 | Electronic_Privacy_Information_2020-06-01.txt |
f381bb48-fe38-4423-935f-50aa9e2c478d | . The court could not have meant this, though, because it had concluded a month earlier that “the NEPDG was not a FACA advisory committee.” In re Cheney, 406 F.3d 723, 730 (D.C. Cir. 2005). The holding of Judicial Watch was instead much more straightforward: the NEPDG’s records were not agency records because the NEPDG was not an “agency.” 412 F.3d at 129, 132 | Electronic_Privacy_Information_2020-06-01.txt |
f5c59cec-ad34-42f0-a52a-227b663220b6 | . It did not come close to holding that advisory committee records cannot, by definition, be agency records. Judicial Watch thus does not bear the weight that the Government assigns to it. See Defs.’ Reply at 7–8. 8 Indeed, EPIC has potentially smoothed the road already | Electronic_Privacy_Information_2020-06-01.txt |
a30b5e5a-62fd-43bc-be42-90953fb6447f | . Its FOIA request sought “[a]ll records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda[s], or other documents which were made available to or prepared for or by” the Commission, a direct quotation from section 10(b) of FACA. Pl.’s Mot. Exs. at 21. EPIC agrees that its FOIA request “exactly track[s] the language of FACA § 10(b)”—i.e | Electronic_Privacy_Information_2020-06-01.txt |
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