Electronic Privacy Information Center v. Drone Advisory Committee

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2020 Decided April 30, 2021
No. 19-5238
ELECTRONIC PRIVACY INFORMATION CENTER,
APPELLANT
v.
DRONE ADVISORY COMMITTEE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00833)
John L. Davisson argued the cause for appellant. With him
on the briefs were Marc Rotenberg and Alan Butler.
Joseph F. Busa, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was Mark
B. Stern, Attorney. Sarah Carroll, Attorney, entered an
appearance.
Before: HENDERSON, WILKINS, and KATSAS, Circuit
Judges.
Opinion of the Court filed by Circuit Judge KATSAS.
2
Opinion concurring in part and dissenting in part filed by
Circuit Judge WILKINS.
KATSAS, Circuit Judge: The Federal Advisory Committee
Act applies to any committee or subcommittee established or
utilized by a federal agency to obtain advice. Section 10(b) of
FACA requires a covered advisory committee to make publicly
available any records prepared for or made available to it.
This case involves four subgroups of the Drone Advisory
Committee (DAC), which provided advice to the Federal
Aviation Administration. The subgroups—one subcommittee
and three task groups—provided advice to the DAC, but never
directly to the FAA. The question presented is whether section
10(b) of FACA applies to records that these subgroups created
but never provided to the DAC. It turns on two subsidiary
questions: (1) whether the subgroups were themselves FACA
advisory committees; and (2) even if not, whether the
disclosure requirement nonetheless extends to the disputed
subgroup records. We answer no to both questions.
I
A
As its name suggests, FACA regulates committees that
provide advice to the federal government. As relevant here,
section 3(2) of FACA defines the term “advisory committee”
to cover “any committee, board, commission, council,
conference, panel, task force, or other similar group, or any
subcommittee or other subgroup thereof” that is “established or
utilized by” the President or a federal agency “in the interest of
obtaining advice or recommendations for” the President or the
agency. 5 U.S.C. app. 2 § 3(2). The definition excludes
committees composed entirely of federal officers or
employees. Id.
3
FACA imposes various requirements on covered advisory
committees. Each committee must have a charter specifying
its purpose, duties, budget, and timeline for completing its
work. 5 U.S.C. app. 2 § 9(c). The sponsoring agency must
designate a federal officer or employee “to chair or attend each
meeting of the advisory committee,” id. § 10(e), and the
committee may not “hold any meetings except at the call of, or
with the advance approval of,” that official, id. § 10(f).
Membership of the committee must be “fairly balanced in
terms of the points of view represented,” id. § 5(b)(2), and the
committee, in formulating “advice and recommendations” for
the agency, must exercise “independent judgment” not
“inappropriately influenced by the appointing authority or by
any special interest,” id. § 5(b)(3). The committee must open
its meetings to the public, id. § 10(a); keep detailed minutes of
each meeting, id. § 10(c); and make various of its records
available to the public, id. § 10(b). Each committee may have
“adequate staff.” Id. § 5(c).
Section 10(b) of FACA imposes the public-records
requirement. It provides that, subject to exemptions set forth
in the Freedom of Information Act,
the records, reports, transcripts, minutes, appendixes,
working papers, drafts, studies, agenda, or other
documents which were made available to or prepared
for or by each advisory committee shall be available
for public inspection and copying at a single location
in the offices of the advisory committee or the agency
to which the advisory committee reports until the
advisory committee ceases to exist.
5 U.S.C. app. 2 § 10(b).
FACA authorizes the Administrator of General Services to
prescribe “administrative guidelines and management controls
4
applicable to advisory committees.” 5 U.S.C. app. 2 § 7(c).
Under this authority, the General Services Administration has
promulgated several regulations on how FACA applies to
subcommittees. One provides: “In general, the requirements of
the Act … do not apply to subcommittees of advisory
committees that report to a parent advisory committee and not
directly to a Federal officer or agency.” 41 C.F.R. § 102-
3.35(a). Another states: “The creation and operation of
subcommittees must be approved by the agency establishing
the parent advisory committee.” Id. § 102-3.35(b). Moreover,
“for each advisory committee and its subcommittees,” the same
designated federal official must “[a]pprove or call the meeting
of the advisory committee or subcommittee” and must
“[a]ttend the meetings” of both. Id. § 102-3.120.
B
The FAA established the Drone Advisory Committee to
obtain advice on the use of drones in the national airspace. The
FAA instructed the DAC to “provide the FAA with
recommendations” and to “deliberat[e]” on any proposed
recommendations in “meetings that are open to the public.”
J.A. 72. The Deputy Administrator of the FAA became the
designated federal official for the DAC.
The FAA provided for subgroups to support the DAC’s
activities. The “terms of reference” for the DAC—its key
organic document—established a subcommittee as “Staff to
Advisory Committee.” J.A. 73. The DAC was required to
“[d]irect the work” of the subcommittee, which was required
to “[f]orward recommendations and other deliverables to the
DAC for consideration.” J.A. 72–73. The terms of reference
also authorized the DAC to establish task groups “to develop
recommendations and other documents for the Committee.”
J.A. 72. Each task group would address a “specific” aspect of
5
drone policy. Id. Task-group products would either be
presented to the subcommittee “for review and deliberation,
then forwarded to the DAC” or would be “presented directly to
the DAC.” Id.
The subcommittee had its own terms of reference. They
reiterated that its purpose was to “support the DAC” and
“provide the staff work for the DAC,” by giving “input to the
DAC” for its “development of recommendations to be
forwarded to the FAA.” J.A. 102. The terms of reference
permitted FAA personnel to “take part in” the subcommittee’s
deliberations. J.A. 105. But they specifically, repeatedly, and
emphatically forbade the subcommittee from sending any
recommendations directly to the FAA: “All must be vetted in a
public DAC meeting and transmitted to the FAA upon approval
by the DAC.” J.A. 104; see also J.A. 106 (“nor can the
[subcommittee] make recommendations directly to the FAA”).
The DAC eventually created three task groups: one to
assess government regulation of drones; one to assess access
requirements for drones; and one to assess drone funding. As
with the subcommittee, terms of reference specifically forbade
the task groups from submitting recommendations “directly to
the FAA.” J.A. 104.
The subcommittee and task groups delivered progress
reports and draft recommendations to the DAC at three of its
meetings in 2017 and 2018. After extended back-and-forth
between the DAC and its subgroups, the DAC adopted a final
set of recommendations and presented them to the FAA. On
May 29, 2018, the DAC’s charter expired and it ceased to exist.
C
In March 2018, the Electronic Privacy Information Center
(EPIC) requested records related to the DAC from various
6
agency and advisory-committee officials. EPIC sought all
documents “made available to or prepared for or by the DAC
or any DAC subcomponent.” J.A. 63 (cleaned up). After
receiving no response, EPIC sued to obtain the records. It
alleged that the government had violated section 10(b) of
FACA by failing to disclose the records.
The government moved to dismiss EPIC’s complaint, and
the district court granted the motion in part and denied it in part.
The court held that because the DAC was an “advisory
committee” within the meaning of FACA, EPIC had stated a
claim with respect to DAC documents—i.e., documents “made
available to or prepared for or by” the DAC itself. EPIC v.
Drone Advisory Comm., 369 F. Supp. 3d 27, 42, 47–49 (D.D.C.
2019) (cleaned up). But, the court held, neither the
subcommittee nor any of the task groups was itself a covered
advisory committee. Id. at 44–47. And section 10(b) applied
only to the records of the DAC itself—not to the records of the
subcommittee or the task groups. Id. at 41–43.
After the government disclosed various DAC documents,
EPIC moved for entry of final judgment. The district court
granted the motion, and EPIC appealed. We have jurisdiction
under 28 U.S.C. § 1291, and our review is de novo, Physicians
for Soc. Resp. v. Wheeler, 956 F.3d 634, 642 (D.C. Cir. 2020).
II
EPIC contends that the subcommittee and task groups
were themselves advisory committees under FACA, which
would make their respective records disclosable under section
10(b). This theory is inconsistent with the text of FACA,
governing GSA regulations, and our precedent.
7
A
Section 3(2) of FACA defines what kind of groups the
statute covers. In pertinent part, it provides: “The term
‘advisory committee’ means any committee, board,
commission, council, conference, panel, task force, or other
similar group, or any subcommittee or other subgroup thereof”
that is “established or utilized by one or more agencies, in the
interest of obtaining advice or recommendations for ... one or
more agencies.” 5 U.S.C. app. 2 § 3(2). This definition turns
on the existence of an advisor/advisee relationship between the
committee giving advice and the agency receiving it—the
agency must establish or utilize the committee to obtain advice
for the agency. FACA’s substantive requirements confirm that
advisory committees report to sponsoring agencies. For
example, the charter of an advisory committee must identify
the “agency or official to whom the committee reports,” id.
§ 9(b); the records of an advisory committee must be publicly
available at its offices or those of “the agency to which the
advisory committee reports,” id. § 10(b); and “the head of the
agency to which the advisory committee reports” may close
committee meetings under certain circumstances, id. § 10(d).
Under these provisions, a covered committee advises and
reports to the agency; one advisory committee does not simply
advise and report to another.
Section 3(2) reinforces this point in its treatment of
subcommittees. It provides that a “subcommittee” is a covered
advisory committee only if it independently satisfies the
statutory definition—the subcommittee itself must be
established or utilized by an agency to obtain advice for the
agency. Section 3(2) does not provide that if a group is a
covered advisory committee, then so too are its subgroups.
Thus, we have long recognized that the question whether a
group meets the definition of an “advisory committee” is
8
distinct from the question whether any of its subgroups meets
the definition. Metcalf v. Nat’l Petroleum Council, 553 F.2d
176, 177 n.13 (D.C. Cir. 1977). And given the textual and
structural features of FACA discussed above, FACA cannot
cover a subcommittee merely because it advises a parent
committee that in turn advises an agency. That would convert
any subcommittee into an advisory committee and collapse the
distinction between reporting to an agency and merely
reporting to a parent committee.
GSA regulations confirm that FACA coverage turns on
whether a subcommittee directly advises the agency. One
regulation provides: “In general, the requirements of the Act …
do not apply to subcommittees of advisory committees that
report to a parent advisory committee and not directly to a
Federal officer or agency.” 41 C.F.R. § 102-3.35(a). But “[i]f
a subcommittee makes recommendations directly to a Federal
officer or agency, or if its recommendations will be adopted by
the parent advisory committee without further deliberations by
the parent advisory committee, then the subcommittee’s
meetings must be conducted in accordance with all openness
requirements” of FACA. Id. § 102-3.145. Under Skidmore v.
Swift & Co., 323 U.S. 134 (1944), these regulations constitute
“a body of experience and informed judgment to which courts
and litigants may properly resort for guidance,” id. at 140.
Our precedent confirms that FACA does not apply to
subgroups that merely provide advice or recommendations
independently evaluated by a parent advisory committee. In
National Anti-Hunger Coalition v. Executive Committee of the
President’s Private Sector Survey on Cost Control, 711 F.2d
1071 (D.C. Cir. 1983), we held that task forces advising an
advisory committee, but “not providing advice directly to the
President or any agency,” were not covered advisory
committees. Id. at 1075 (cleaned up). Then, in Association of
9
American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898(D.C. Cir. 1993) (AAPS), we confirmed that FACA applies to
the group that “gives the advice to the government,” but not to
the “subordinate advisers or consultants who are presumably
under the control of the superior groups.” Id. at 913. Both
decisions are instructive.
In Anti-Hunger Coalition, the plaintiffs sought records
from three task forces reporting to two presidential advisory
committees. 711 F.2d at 1072. The district court held that
FACA does not apply to task forces or other subgroups that “do
not directly advise the President or any federal agency,” even
if they “provide information and recommendations” to
advisory committees. Nat’l Anti-Hunger Coal. v. Exec. Comm.
of the President’s Priv. Sector Survey on Cost Control, 557 F.
Supp. 524, 528–29 (D.D.C. 1983). The court described such
subgroups as merely “performing staff functions” for the parent
committee. Id. at 529. On summary judgment, the court held
that because the task forces at issue did not directly advise the
President or any agency, they were not covered advisory
committees. Id. at 529–30. In affirming, this Court explicitly
“approve[d] the reasoning under which the District Court
rejected the appellants’ contentions”—including the contention
that the “task forces [were] themselves advisory committees.”
711 F.2d at 1072. We noted that a task force or other subgroup
might itself be an advisory committee only if it transmitted
material “directly to federal decision makers” or if the parent
committee approved its recommendations “with little or no
independent consideration.” Id. at 1075. 1
1
The dissent contends that Anti-Hunger Coalition has limited
precedential value because, in its view, the only issue necessary to
our decision was whether to consider new evidence that the task
forces transmitted recommendations directly to the government or
that the parent committee rubber-stamped task force
10
In AAPS, we continued to distinguish between advisory
committees and their subordinate groups. AAPS involved a
“working group” that reported and gave advice to a “Task
Force” on healthcare reform. 997 F.2d at 901. Applying Anti-
Hunger Coalition, the district court held that because the Task
Force was an advisory committee, the working group was not.
See id. at 913. We held that the Task Force consisted entirely
of government officials and thus was exempt from FACA. Id.at 902–11. As a result, we further held that the working group
was an advisory committee because it was “the point of contact
between the public and the government.” Id. at 913. We
contrasted the working group in AAPS with the task forces in
recommendations. Post at 12–13. But before holding that the new
evidence was not properly before us, we concluded that the district
court’s “characterization of the task forces as the [Advisory]
Committee’s ‘staff’”—rather than as separate advisory
committees—was “perfectly defensible” on the record before it. See
711 F.2d at 1075–76. Moreover, the appellants in Anti-Hunger
Coalition had devoted an entire section of their brief to challenging
the directness requirement imposed in that case. See Brief of
Appellants at 25–34, Nat’l Anti-Hunger Coal., 711 F.2d 1071 (No.
83-1248), microformed on Records and Briefs of the U.S.C.A., D.C.
Circuit (BNA’s Law Reprints); id. at 30 (“FACA simply does not
distinguish between groups which render advice directly to federal
decisionmakers and those which furnish advice ‘indirectly.’”). And
our suggestion that the plaintiffs seek relief in the district court based
on the asserted new evidence, 711 F.2d at 1076, would have made
little sense if the task forces were advisory committees regardless of
whether their recommendations flowed to the government directly or
indirectly. The dissent further questions whether the task forces in
Anti-Hunger Coalition “were even providing advice.” Post at 14.
We described them as providing “reports and recommendations,”
711 F.2d at 1072, 1075—which, for FACA purposes, is
indistinguishable from providing advice, see 5 U.S.C. app. 2 § 3(2)
(by definition, advisory committees provide “advice or
recommendations”).
11
Anti-Hunger Coalition, which reported to parent advisory
committees “covered by FACA.” Id.
EPIC highlights our observation in AAPS that “the
President can establish an advisory group that he does not meet
with face-to-face.” 997 F.2d at 912. But we said that to
reinforce the point that FACA coverage turns on which entity
is the “point of contact” between the public and the
government. See id. at 912–13. Because the working group in
AAPS provided advice directly to “one or more agencies or
officers of the Federal Government,” 5 U.S.C. app. 2 § 3(2),
even if not directly to the President, it qualified as an “advisory
committee” under FACA.
Under these decisions, the subgroups here do not qualify
as advisory committees. EPIC attached to its complaint the
organic documents of the DAC and its subgroups, as well as
the minutes of each DAC meeting. Those documents show that
the subgroups gave recommendations to the DAC over the
course of three DAC meetings. They also show that members
of the DAC engaged in extensive give-and-take with the
subgroups, as well as extensive deliberations among
themselves, before adopting any recommendations and
conveying them to the FAA. Indeed, the minutes reveal that
the DAC insisted on refinements or amendments to subgroup
recommendations before adopting them. Because the
subgroups advised and reported to the DAC—not to the
FAA—they were not advisory committees. 2
2
The dissent contends that dismissal at the pleading stage is
inappropriate because EPIC has plausibly alleged that the DAC acted
as a rubber-stamp. Post at 15–17. But the DAC meeting minutes—
attached and thus incorporated into EPIC’s own complaint—
conclusively rebut that allegation. See, e.g., J.A. 141 (DAC orders
task group to “adjust” preliminary recommendation); id. (DAC
12
B
EPIC contends that the subcommittee and task groups
satisfy FACA’s definition of an advisory committee for three
principal reasons. None is persuasive.
First, EPIC highlights an FAA press release stating that the
DAC would conduct some of its business “through a
subcommittee and various task groups that would help the FAA
prioritize its activities.” J.A. 80. But whether subgroups might
indirectly help the FAA is not the relevant question; as
explained above, a subgroup must directly advise the agency in
order to be an advisory committee under FACA. And as the
organic documents and meeting minutes confirm, none of the
subgroups here did so.
Second, EPIC argues that the subgroups must have directly
advised the FAA because the DAC’s designated federal official
attended subgroup meetings and thus learned of subgroup
recommendations before the DAC could consider them. But
FACA itself required the designated official to attend each
meeting of the DAC, 5 U.S.C. app. 2 § 10(e), and the GSA
orders task group to “re-look” at issue and give it “more attention”);
J.A. 143 (DAC requests updates “to make sure [task groups] are
going in the ‘right direction’”); J.A. 148 (task group “has
incorporated guidance received from” DAC); J.A. 161–63 (DAC
deliberation over “non-consensus” task-group proposals); J.A. 164
(task group noting “iterative process” with DAC); J.A. 165–67 (DAC
votes to adopt “clarifying amendment” to task group
recommendation). The further allegation that FAA officials “worked
directly with the Subcommittee,” post at 16, also does not help EPIC.
As elaborated in the complaint, it sets forth what nobody denies—
that FAA officials briefed the subcommittee on its assignments and
attended its meetings. J.A. 51. None of this supports a plausible
inference that the subgroups secretly conveyed advice directly to the
FAA, in violation of their own organic documents.
13
regulations likewise required that same official to attend each
meeting of the subgroups, 41 C.F.R. § 102-3.120. Moreover,
the regulations codify our holding in Anti-Hunger Coalition
that FACA does “not apply to subcommittees of advisory
committees that report to a parent advisory committee and not
directly to a Federal officer or agency.” 41 C.F.R. § 102-
3.35(a); see 66 Fed. Reg. 37,728, 37,729 (July 19, 2001)
(discussing Anti-Hunger Coalition). So the mere presence of
the designated official at committee or subgroup meetings, as
required by the statute and its implementing regulations, cannot
transform a subgroup into an advisory committee.
EPIC stresses that the designated federal official for the
DAC was a high-ranking officer of FAA—at various times,
either the Deputy Administrator or the Acting Administrator.
In other contexts, the distinction between high-ranking officers
and low-ranking employees may be important. See, e.g., Lucia
v. SEC, 138 S. Ct. 2044, 2051–57 (2018) (Appointments
Clause). But FACA permits any federal “officer or employee”
to be designated as the government official who must call and
attend meetings of the advisory committee. 5 U.S.C. app. 2
§ 10(e), (f). And although the rank of the designated official
may reflect the importance of the committee’s work to the
agency, post at 9–10, what matters under Anti-Hunger
Coalition and AAPS is whether the subgroup transmits any
recommendations directly to the agency—either formally or in
substance because the parent committee acts as a rubber-stamp.
See 997 F.2d at 913; 711 F.2d at 1075–76.
Third, EPIC contends that the DAC subgroups are covered
advisory committees because the FAA established them and
exercised sufficient control to “utilize” them within the
meaning of FACA. See, e.g., Pub. Citizen v. DOJ, 491 U.S.
440, 457–59 (1989); Wash. Legal Found. v. U.S. Sentencing
Comm’n, 17 F.3d 1446, 1450–51 (D.C. Cir. 1994). But even if
14
the FAA did establish and utilize the subgroups, that would not
make them advisory committees. Again, section 3(2) covers
only those committees established or utilized “in the interest of
obtaining advice for the President or one or more agencies or
officers of the Federal Government.” 5 U.S.C. app. 2 § 3(2).
To avoid significant statutory surplusage, the latter phrase must
mean more than just that the FAA established or utilized the
subgroups. The inquiry for this further element of the
definition— distinguishing groups that make recommendations
directly to the federal government from those that merely make
recommendations to advisory committees—is spelled out in
Anti-Hunger Coalition and AAPS, not in decisions addressing
when the government establishes or utilizes the group at issue.
C
In a similar vein, the dissent argues that a subgroup whose
recommendations will “benefit” the agency is established or
utilized to obtain recommendations “for” the agency. Post at
2. Relying on California Forestry Association v. United States
Forest Service, 102 F.3d 609 (D.C. Cir. 1996)—which neither
party cited—the dissent contends that a group provides
recommendations “for” an agency if “the agency formed the
group and intended for the group’s advice to serve an essential
element of the agency’s mission.” Post at 2 (cleaned up). To
the dissent, at least if the agency creates the subgroup, all that
matters is whether the subgroup’s advice is “intended to benefit
[the] agency” directly or indirectly. Post at 9.
California Forestry does not support that view. The case
involved a committee established by the Forest Service to study
old-growth forests in the Sierra Nevada. The Service paid for
the study out of funds appropriated for “forest research.” See
102 F.3d at 610. The committee provided the study to the
Service, which used the study in many of its operations. See
15
id. at 611–12. On these facts, we had no difficulty concluding
that the committee was established and utilized to provide
advice “for” the Forest Service, despite legislative history
indicating that Congress wanted the Service to fund the study,
see id. at 610–11, and wanted to receive it, see id. at 612 n.3.
California Forestry thus involved no question whether FACA
covers subordinate groups that report to federal agencies only
through parent advisory committees. Yet if anything, the
decision makes our point: FACA covered the committee at
issue based on its direct reporting relationship to the Forest
Service. And no countervailing “intent” from the legislative
history mattered, despite even a statement in the House Report
declaring that FACA would not apply to the group conducting
the study. See id. at 612.
The dissent’s attempt to replace a directness test with an
intent test has other difficulties as well. For one thing, it would
sweep into FACA virtually all subgroups established by the
government, for it is hard to imagine why an agency would
create subgroups unless it intended to benefit from their efforts.
And an intent test would do this even where, as here, the
sponsoring agency forbade the subgroups from providing
advice directly to it and instead required them to operate at the
bottom of a carefully defined hierarchy. In any large
organization, executives make decisions supported by staff
with more specialized knowledge about one or another aspect
of the question at hand. The FAA constituted the DAC with
this reality in mind, by establishing a parent committee
“comprised of executive leaders” from key stakeholders and
supported by subgroups “comprised of members with broad
knowledge and expertise” of one or another aspect of drone
policy. J.A. 72. Yet on the dissent’s view, the price for doing
this was to trigger each of FACA’s substantial constraints—
ranging from chartering obligations to balanced-membership
requirements—for each of the specialized task groups two or
16
three levels removed from the agency itself. As shown above,
nothing in FACA compels that odd result. 3
Because the subgroups here provided no advice to the FAA
directly, and because the DAC functioned as more than a
rubber-stamp for the subgroups’ work product, the subgroups
were not advisory committees subject to FACA.
III
EPIC next contends that even if the subcommittee and task
groups were not themselves advisory committees, their records
nonetheless are DAC records covered by section 10(b) of
FACA. Again, we disagree.
Section 10(b) requires the disclosure of records “made
available to or prepared for or by each advisory committee.” 5
U.S.C. app. 2 § 10(b). It is undisputed that records created by
the subgroups and given to the DAC became DAC records that
must be disclosed. The district court ordered the government
to give those records to EPIC, see 369 F. Supp. 3d at 47–49,
and the government has complied. The present dispute thus
involves only records created by the subgroups and never given
to the DAC—for example, drafts of proposals that died before
the subgroups or minutes of subgroup meetings. Such records
3
To mitigate the practical difficulties of its approach, the
dissent posits that a federal agency could establish subgroups to
provide an advisory committee with “staffing work” but not “advice
or recommendations.” Post at 17–18. But one critical function of
staff is to advise their principals—the Chief of Staff advises the
President, Capitol Hill staffers advise Members of Congress, and
chambers staff (i.e., law clerks) advise judges. And where the sole
job of the principals is to give advice—as for members of an advisory
committee—it is particularly difficult to imagine their receiving
much help from advice-free staffing.
17
were neither “made available to” nor “prepared for or by” the
DAC. Instead, under the same line of reasoning adopted above,
we think that such records were “prepared for or by” the
subgroups themselves.
EPIC counters with the dictionary. It contends that
because a “subgroup” is a “subdivision of a group,” Subgroup,
Collins English Dictionary (2018), records belonging to a
subgroup must also belong to the group. That contention
overlooks specific usage in FACA, which defines “advisory
committee” to include some, but not all subgroups of covered
committees. 5 U.S.C. app. 2 § 3(2). Likewise, it overlooks
FACA’s elaboration of what records must be disclosed—those
made available to, prepared for, or prepared by a covered
advisory committee. Id. app. 2 § 10(b). Because FACA’s text
contemplates subgroups that are not advisory committees, as
well as documents prepared for subgroups but not for advisory
committees, ordinary usage does not help EPIC.
EPIC also invokes FACA’s implementing regulations. It
asserts that the regulations distinguish between advisory
committees and subgroups for purposes of FACA’s open-
meeting requirement, but not for purposes of its record-
disclosure requirement. The cited open-meeting regulations
simply track our analysis of when subcommittees are advisory
committees: no FACA requirements apply to subcommittees
that report only to a parent advisory committee, 41 C.F.R.
§ 102-3.35, but open-meeting requirements apply “[i]f a
subcommittee makes recommendations directly to a Federal
officer or agency, or if its recommendations will be adopted by
the parent advisory committee without further deliberations,”
id. § 102-3.145. And the record-disclosure regulation
describes section 10(b) as covering records that “provide a
meaningful opportunity to comprehend fully the work
undertaken by the advisory committee,” id. § 102-3.170, which
18
does not cover records neither generated by the committee nor
provided to it. The GSA regulations do not help EPIC. 4
EPIC highlights a schedule issued by the National
Archives and Records Administration, which requires
subcommittee records to be preserved under the Federal
Records Act. See General Records Schedule 6.2: Federal
Advisory Committee Records 131–32 (Sept. 2016). The
schedule reflects the Archivist’s view of which documents
“have sufficient administrative, legal, research, or other value
to warrant their further preservation.” 44 U.S.C. § 3303a(d).
That determination tells us nothing about which records of a
subgroup are “prepared for or by” its parent advisory
committee within the meaning of section 10(b). We have
already held that “the treatment of documents for disposal and
retention purposes under the various federal records
management statutes” does not determine the documents’
status under the Freedom of Information Act. Consumer Fed’n
of Am. v. USDA, 455 F.3d 283, 289 (D.C. Cir. 2006) (cleaned
up). Nor should it determine their status under FACA.
EPIC also analogizes to FOIA. It notes that agency
records subject to FOIA include records of agency
components; for example, records of the Civil Division are also
records of the Justice Department. According to EPIC, the
same principle should govern the respective records of parent
4
EPIC further points to a single slide from an undated GSA
“Training Course,” which announces that subcommittees must allow
public access to their records. J.A. 188. The slide further states that
subcommittees must comply with other FACA requirements such as
designating a federal officer and keeping minutes of meetings.
Whatever its origin, the slide lacks the force of law, and it plainly
contradicts the regulation confirming that many subcommittees are
not subject to FACA. See 41 C.F.R. § 102-3.35(a).
19
advisory committees and their subgroups. But the comparison
is inapt. FOIA disclosure requirements extend to the records
of any federal “agency,” which FOIA defines as “each
authority” of the federal government, including those “within
or subject to review by another agency.” 5 U.S.C. § 551(1);
see id. § 552(f)(1). In contrast, as we have shown, FACA
defines some subgroups not to be covered advisory
committees, and it limits disclosure obligations to the records
“made available to or prepared for or by” a covered advisory
committee. EPIC’s invocation of FOIA, like its invocation of
the Federal Records Act, does not advance its case.
Finally, EPIC cites Cummock v. Gore, 180 F.3d 282 (D.C.
Cir. 1999), for the proposition that section 10(b) can cover
documents not made available to the entire advisory
committee. But Cummock held only that section 10(b) gave
one member of an advisory committee the right to access
documents “reviewed and relied upon” by other members of
the committee “in formulating [their] recommendations.” Id.
at 292. It says nothing about the character of records produced
and held by an advisory committee’s distinct subgroups.
IV
For these reasons, we hold that the DAC subgroups were
not themselves advisory committees and that section 10(b) of
FACA does not extend to documents that the subgroups created
but never gave to the DAC.
Affirmed.
WILKINS, Circuit Judge, concurring in part and dissenting
in part: “Sunlight is said to be the best of disinfectants.”
Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting L. BRANDEIS,
OTHER PEOPLE’ S MONEY 62 (National Home Library
Foundation ed. 1933)). With this principle in mind, Congress
passed the Federal Advisory Committee Act, 5 U.S.C. app. 2,
et seq., out of a recognition that advisory committees “were
often dominated by representatives of industry and other
special interests seeking to advance their own agendas.”
Cummock v. Gore, 180 F.3d 282, 284 (D.C. Cir. 1999). FACA
requires, among other things, that advisory committees hold
open meetings, keep detailed minutes, and make their records
available to the public. See 5 U.S.C. app. 2 § 10; Pub. Citizen
v. U.S. Dep’t of Justice, 491 U.S. 440, 446 (1989). The
plaintiff, Electronic Privacy Information Center (“EPIC”),
alleges that the Federal Aviation Administration (“FAA”)
organized the Drone Advisory Committee (“DAC”) in a way
that evades this scrutiny, allowing industry insiders such as
Amazon, Facebook, and Chinese drone manufacturers to
deliberate and develop policy recommendations in secret
subcommittee meetings.
EPIC wants to know whether these stakeholders exercised
outsized influence over the subgroups’ deliberations. The
majority prevents that, holding that a subgroup established by
an agency for the purpose of developing advice for the agency
may shield from public view its meetings and records, so long
as the advice first passes through a FACA committee. In other
words, the subgroups need not comply with FACA, because
their chartering documents set forth a procedure by which their
recommendations are filtered through a FACA committee, and
their recommendations are not given “directly to” to the FAA.
See Maj. Op. at 8 (citing Nat’l Anti-Hunger Coal. v. Exec.
Comm. of President’s Private Sector Survey on Cost Control,
711 F.2d 1071 (D.C. Cir. 1983)). For several reasons, I
disagree.
2
First, the plain text of the statute and our precedent
applying it compel the conclusion that these subgroups are
FACA committees. Relevant here, FACA defines “advisory
committee” to include groups that are established to provide
advice “for” a government agency. 5 U.S.C. app. 2, § 3(2)).
FACA’s reach is not limited to groups that provide advice
“directly to” an agency. Instead, the word “for” in this context
mostly sensibly means that the advice must benefit the agency.
And whether a group’s advice is obtained “for” the government
cannot be untethered from the question of who established that
group and why.
Consistent with this understanding, under our precedent
we look not to the manner in which a group offers its advice,
but rather to whether the entity that established or utilized the
group (be it Congress, the President, or an agency) intended for
the group’s advice to benefit the President, an agency, or an
officer of the federal government. California Forestry
Association v. U.S. Forest Service, 102 F.3d 609, 611–12 (D.C.
Cir. 1996). Specifically, we have held that a group was
established in the interest of obtaining advice “for” an agency,
even though the group delivered its advice directly to Congress
(who was the “primary intended recipient” of the advice),
because the agency formed the group and intended for the
group’s advice to “serve an essential element of” the agency’s
mission. Id. Here, according to the enabling documents
appended to the complaint, the FAA intended for the subgroups
to provide advice that would assist it in developing airspace
policy. On that basis alone, they are FACA committees. See
id. at 611 (“We conclude that the circumstances of SNEP’s
genesis support an inference that SNEP was in fact established
‘in the interest of’ of advising an agency and therefore is
subject to FACA.”).
3
Second, the majority’s reliance on Anti-Hunger, 711 F.2d
at 1075–76, is misplaced for many reasons. Foremost among
them is that Anti-Hunger has little, if any, precedential
application here, as we merely rejected an evidentiary
challenge to the district court’s decision. Moreover, even
assuming Anti-Hunger adopted the district court’s reasoning,
that case involved subgroups that were created by the FACA
committee and performed mere “staff” functions. Id. By
contrast, the subgroups here were created by the FAA, and the
enabling documents require the subgroups to provide advice.
Finally, even assuming this case sits on all fours with Anti-
Hunger, EPIC has plausibly alleged that the subgroups
exceeded the scope of their mandates and “directly” advised
the FAA, because the DAC allegedly “rubber stamp[ed]” the
subgroups’ recommendations. Id.At the heart of this dispute is EPIC’s concern that the
DAC’s recommendations to the FAA failed to address the
privacy concerns surrounding unmanned aircraft, or “drones.”
The FAA established the DAC under FACA to “provide
advice on key unmanned aircraft integration issues.” J.A. 77.
Despite the serious and obvious privacy concerns that drones
present,1 the DAC’s membership was allegedly stacked with
industry representatives and included no representation from
groups dedicated to protecting Americans’ privacy. 2
1
Drones can observe and record all kinds of sensitive information
about Americans from thousands of feet in the air, unbeknownst to
those on the ground who are being surveilled. See J.A. 48 ¶ 19.
2
According to the complaint, eighteen DAC members “are affiliated
with corporations or organizations engaged in the design,
manufacture, operation, or management of drones,” nine “are
affiliated with traditional aircraft operators, airport authorities, or
associations of aviation professionals,” two “are university-affiliated
researchers,” and three “are public officials.” J.A. 50 ¶ 27. But “[n]o
4
Compounding this concern is the DAC’s structure, which
provides that recommendations flow from “task groups,”
which report to the DAC’s subcommittee (the “DACSC”),
which in turn reports to the DAC. Unlike the DAC, however,
the DACSC and the task groups meet in secret and do not
disclose the agendas or minutes from their meetings. Wishing
to learn how much (if at all) privacy issues animated the
subgroups’ discussions, EPIC requested their records and, after
receiving no response, filed suit. But the District Court granted
the government’s motion to dismiss EPIC’s claims against the
subgroups, concluding that they are not “advisory committees”
under FACA.
I turn now to the text.
FACA provides that some “subcommittee[s]” or “task
force[s]” are to be treated as “advisory committee[s]” subject
to FACA’s requirements. 5 U.S.C. app. 2 § 3(2). To be
considered an “advisory committee” under FACA, the
subgroup must have been:
(A) established by statute or reorganization
plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more
agencies,
in the interest of obtaining advice or
recommendations for the President or one or
more agencies or officers of the Federal
Government . . . .
privacy, consumer safety, or other general public interest groups are
represented on the DAC.” Id.
5
Id. (emphasis added).
Parsing out the relevant text, the question here is
(1) whether the FAA “established or utilized” the subgroups,
and (2) whether the FAA did so “in the interest of obtaining
advice or recommendations for” the FAA. See id. But the
second prong cannot be viewed in isolation from the first. That
is, the phrase “in the interest of obtaining advice or
recommendations for” modifies the phrase “established or
utilized.” While the first prong merely asks who established or
utilized the group, the second prong asks why the group was
established. And the second question cannot be answered
without considering who did the establishing or utilizing, and
their reason for doing so.
As to the first prong, the government has explicitly waived
any argument against it.3 This waiver is unsurprising, as no
one can seriously dispute that the subgroups were “established”
by the FAA. See Byrd v. EPA, 174 F.3d 239, 246 (D.C. Cir.
1999) (“[A]n agency ‘establishes’ a [FACA] committee only if
the agency forms the committee[.]”). The FAA specifically
called for the subgroups’ creation in the DAC’s Terms of
Reference, J.A. 72 (providing that the DAC will “be two-tiered
3
Despite EPIC’s briefing on the question below, see Pl.’s Opp’n to
Mot. to Dismiss (ECF No. 18, at 21–23), the District Court did not
address whether the subgroups were “established” by the FAA. See
J.A. 30 n.4. And even though EPIC briefed the question extensively
on appeal, the government explicitly declined to address it.
Appellee’s Br. at 16, 24. Because we review de novo a district
court’s decision on a motion to dismiss, the government has waived
any argument that the subgroups were not “established” by the FAA.
See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1181 (D.C. Cir.
2011) (“Even appellees waive arguments by failing to brief them.”
(quoting United States v. Ford, 184 F.3d 566, 578 n.3 (6th Cir.
1999))).
6
with subordinate Task Groups”), and exercised control over
their membership selection, J.A. 104 (establishing criteria for
who can serve on the DACSC); J.A. 72 (task group members
must be chosen “in consultation with” the designated federal
officer, who was either the head of the FAA or the second-in-
command).4 Nor does anyone dispute that the FAA created the
subgroups for the express purpose of formulating advice on
airspace policy. See J.A. 72 (providing that the subgroups are
“established to develop recommendations and other documents
for” the DAC) (emphasis added); J.A. 75 (providing that the
“Task Groups will reach out to individual experts and other
outside groups to assist in developing UAS integration related
recommendations”) (emphasis added); J.A. 102 (providing that
“[t]he purpose of establishing [the DACSC] is to support the
DAC in developing consensus-based recommendations to the
FAA on issues related to the integration of UAS into the
nation’s airspace”) (emphasis added).
Thus, the only question is whether the advice that the task
groups and the DACSC provide is “for” the FAA, or instead is
exclusively “for” the DAC. See 5 U.S.C. app. 2 § 3(2). Put
another way, did the FAA establish the subgroups “in the
4
Even assuming, arguendo, that the FAA did not “establish” the
subgroups, EPIC has plausibly alleged that the FAA “utilized” them.
See Animal Legal Def. Fund, Inc. v. Shalala, 104 F.3d 424, 429–30
(D.C. Cir. 1997) (explaining that a plaintiff can satisfy the “utilized”
standard in two ways: (1) if the advisory body is “purely private,”
by showing that it is “so closely tied to an agency as to be amenable
to strict management by agency officials,” or (2) if the advisory body
is “quasi-public,” by showing that the Government “formed and
funded it . . . for the explicit purpose of furnishing advice to the
Government”) (internal quotation marks omitted); see also Food
Chem. News v. Young, 900 F.2d 328, 332 (D.C. Cir. 1990);
Washington Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446,
1450 (D.C. Cir. 1994).
7
interest of” advising the FAA, or rather did the FAA establish
them “in the interest of” advising the DAC, and only the DAC?
Not content with the text in its current form, the majority
grafts onto the word “for” in section 3(2) the idea that a group
must report “directly to” the agency to be treated as a FACA
committee. Besides doing violence to the text, this approach
elevates form over function. Here, common sense tells us that
the subgroups’ advice is developed with the end goal of
assisting the FAA in designing its airspace policy. To say that
the subgroups’ advice is not “for” the agency because it’s not
delivered “directly to” the agency is a bit like saying that expert
advice or recommendations given to a congressional
committee is not “for” Congress as a whole, but rather
exclusively for the benefit of that particular committee.
Although it is sometimes appropriate to deviate from plain
statutory text when it is at odds with the statute’s purpose, this
is not a case “[w]here the literal reading of a statutory term
would compel an odd result.” Pub. Citizen, 491 U.S. at 454(internal quotation marks omitted). To the contrary, FACA
expressly contemplates that some “subcommittee[s]” or “task
force[s]” will be deemed “advisory committee[s].” 5 U.S.C.
app. 2 § 3(2). Nor are the subgroups “purely private group[s]
. . . not formed by the” government. See Pub. Citizen, 491 U.S.
at 460. Instead, these groups were formed and funded by the
FAA, for the express purpose of providing advice for the
benefit of the FAA. It seems entirely reasonable to require that
they follow the same procedures as their parent committee.
But we need not rely solely on a common sense reading of
the plain text, because our Circuit has already interpreted the
word “for” in section 3(2). We explained in California
Forestry Association v. U.S. Forest Service that this prong
focuses not on how or to whom a group’s advice is delivered,
8
but rather on whether the circumstances “support an inference
that” the advice was “intended for [agency] use.” 102 F.3d at
611–12. Nor did it matter that Congress, rather than the
agency, was the “primary intended recipient” of the group’s
advice. Id. The group was nonetheless a FACA Committee,
because it was established “in the interest of obtaining advice
or recommendations for” the Forest Service and its work would
“serve an essential element of the Forest Service’s long-term
plan for ecosystem management.” Id. at 610–11 (quoting the
district court’s opinion). Here, as in California Forestry, the
FAA may not be the “primary” intended recipient of the
advice—the DAC is—but that fact doesn’t resolve whether the
advice is developed “for” the FAA under section 3(2) of
FACA.
Instead, to determine whether a group or subgroup was
established “in interest of obtaining advice or
recommendations for” the government, we look to the intent
behind the group’s creation. In California Forestry, we
concluded that a group was a FACA committee because its
work “was intended for Forest Service use” and because the
Forest Service “directed a large amount of discretionary
funding to” the group. Id. at 610, 612. We also zeroed in on
the word “for” in a Forest Service briefing paper submitted to
Congress, which explained that the group was “part of [the
Forest Service’s] continuing effort to develop a strong
ecosystem management program and ethic for the Forest
Service.” Id. at 611. It could not be said that the Forest
Service’s use of the group’s work was “merely subsequent and
optional.” Id. at 613. Nor did we require in California Forestry
that the group report “directly to” the Forest Service; instead,
the group delivered its advice directly to Congress. See id. at
612 n.3 (noting that group’s reports “shall . . . be submitted to”
Congress).
9
The principle established in California Forestry is
straightforward: If a group or subgroup is created by the
government for the purpose of providing advice that is intended
to benefit an agency, then its advice is obtained “for” the
agency. See 5 U.S.C. app. 2 § 3(2). Based on the organic
documents alone, that standard is met here. See J.A. 72, 75,
102.
To be sure, the question in California Forestry was
whether the group’s advice was “for” Congress or rather “for”
an agency, which differs from the precise question here, which
is whether the subgroups’ advice is for the agency or
exclusively for the nominal FACA committee. But the
majority does not identify a reason that this distinction should
make any difference. If anything, the case here is even stronger
than in California Forestry, because the FAA itself (as opposed
to Congress or another federal agency) created the subgroups,
making it more likely that it intended for the subgroups’ advice
to benefit the FAA. The majority unreasonably siloes the
“established” prong from the “in the interest of obtaining
advice or recommendations for” prong, and, to boot, it applies
a “directly to” gloss onto the latter. In doing so, it undermines
FACA’s purpose and greenlights an easily abusable system,
whereby agencies may direct government-established
subgroups to deliberate in complete secrecy, so long as the
enabling documents require that the advice be filtered through
a nominal FACA committee.
The structure of the subgroups further confirms that their
advice is obtained “for” the FAA. The FAA exercised some
level of control over virtually every aspect of the subgroups’
existence, either through the enabling documents, which
established the membership criteria and operating procedures,
or through the DAC’s “designated federal officer” (“DFO”),
see 5 U.S.C. app. 2 § 10(e), who was either the FAA’s Acting
10
Administrator or its Deputy Administrator. Significantly, the
DFO maintains substantial control over the subgroups’
proceedings and membership. J.A. 175 (providing that the
DFO must “[c]all, attend, and adjourn all the
committee/subcommittee meetings,” and must approve the
agendas of the DAC and its subgroups); J.A. 72 (task group
members must be chosen “in consultation with” the DFO); J.A.
105 (providing for “[n]on-voting members” of the DACSC,
who are “selected by the DFO” and “may attend as observers
and have access to the committee’s online workspace”). The
DFO also assigns work to the task groups and controls the type
of advice they may give. J.A. 53 ¶ 39 (alleging that the DFO
issued “detailed tasking statements” for the task groups, which
included “topics that each Task Group should advise on, and
deadlines by which [they] should deliver [their]
recommendations and reports”).
Of course, the mere fact that a FACA committee’s DFO is
a high-ranking official of the agency that created the committee
and its subgroups does not, by itself, render the subgroups
FACA committees. But the FAA’s decision to appoint such a
high-ranking official as DFO is additional evidence that the
FAA intended that the subgroups develop advice “for” the
FAA.5 Indeed, the FAA itself viewed the subgroups’ purpose
as formulating advice that would assist the FAA in developing
airspace policy. In a press release, the FAA explained that the
DAC would “conduct more detailed business through a
5
I note as well that the government does not dispute that the DFO
was an “officer[] of the Federal Government.” 5 U.S.C. app. 2
§ 3(2); Oral Arg. Recording at 18:40-18:55. Under my reading, a
group established “in the interest of” advising an “officer[] of the
Federal Government” may fall within the strictures of 5 U.S.C. app.
2 § 3(2). EPIC, however, does not argue that the subgroups’ advice
was intended “for” an “officer[] of the Federal Government,” see id.,
but rather “for” the FAA.
11
subcommittee and various task groups that will help the FAA
prioritize its activities, including the development of future
regulations and policies.” J.A. 80 (emphasis added). It strains
credulity to contend that a group that “help[ed] the FAA
prioritize its activities” and “develop[] future regulations and
policies” was not “serv[ing] an essential element” of the FAA’s
drone policy. See California Forestry, 102 F.3d at 610–11.
To justify its departure from California Forestry, the
majority relies in part on a General Services Administration
regulation, which states that “[i]n general, the requirements of
[FACA] . . . do not apply to subcommittees of advisory
committees that report to a parent advisory committee and not
directly to a Federal officer or agency.” Maj. Op. at 8 (quoting
41 C.F.R. § 102-3.35(a)). But see 41 C.F.R. § 102-3.35(a)
(“However, this section does not preclude an agency from
applying any provision of the Act and this part to any
subcommittee of an advisory committee in any particular
instance.”). But we owe no deference to “an agency’s
construction of a statute interpreted by more than one agency,
. . . let alone one applicable to all agencies.” Ass’n of Am.
Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 913
(D.C. Cir. 1993). Therefore, “[f]or generic statutes like the
APA, FOIA, and FACA, the broadly sprawling applicability
undermines any basis for deference, and courts must therefore
review interpretative questions de novo.” Collins v. Nat’l
Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir. 2003).
Even if deference were warranted, the GSA regulation
expressly recognizes that FACA creates a “general” rule. 41
C.F.R. § 102-3.35(a). To the extent the majority reads § 102-
3.35(a) as creating a categorical rule or precluding FACA’s
application to the subgroups merely because the agency doesn’t
view the subgroups as FACA committees, such an
interpretation of FACA is unreasonable. FACA itself states
12
that some “subcommittee[s]” or “task force[s]” will be deemed
“advisory committee[s],” so long as they were “established” or
“utilized” by the government in the interest of providing advice
“for” the government. 5 U.S.C. app. 2 § 3(2).
Put simply, because the FAA established the DACSC and
the task groups and because their advice “was intended for
[FAA] use” and to “serve[] an essential element” of the FAA’s
drone policy decisions, EPIC has plausibly alleged that the
advice was obtained “for” the FAA under 5 U.S.C. app. 2
§ 3(2). See California Forestry, 102 F.3d at 610–11.
In affirming the District Court, the majority relies heavily
on Nat’l Anti-Hunger Coal. v. Exec. Comm. of President’s
Priv. Sector Surv. on Cost Control, 557 F. Supp. 524, 526
(D.D.C.), aff’d, 711 F.2d 1071 (D.C. Cir. 1983). As here, Anti-
Hunger concerned an allegation that a FACA committee’s
“task forces” were acting as advisory committees themselves.
Id. at 529. The Anti-Hunger district court concluded that
although the subgroups were “intimately involved in the
gathering of information . . . and the formulation of possible
recommendations for consideration of the Committee,” they
were not formed “in the interest of obtaining advice or
recommendations for” the government under section 3(2),
because they did not report “directly to” the government. Id.
In addition, the district court concluded that the task forces
were not acting as FACA committees because they were
performing mere “staff functions,” and there was “no reliable
evidence that the[y] . . . ha[d] gone beyond such functions and
ha[d] actually started advising agencies on policy
recommendations.” Id. at 529–30.
We affirmed the decision on appeal, but on narrow,
evidentiary grounds. Anti-Hunger, 711 F.2d at 1075–76.
Critically, we explained that the appellants argued the district
13
court’s decision “ha[d] been called into question by new
evidence suggesting both that task force reports [we]re [being]
transmitted directly to federal decision makers before they
[being] made publicly available,” and that the FACA
committee was “merely ‘rubber stamping’ the task forces’
recommendations with little or no independent consideration.”
Id. We explained that “[e]ither of these facts, if true, might
well have led the District Court to conclude that the task forces
themselves were subject to the requirements of the FACA,” but
that on the record before it, the district court reasonably
concluded that the task force reports “would be exhaustively
reviewed and revised by” the FACA committee. Id. Because
we were in “no position to weigh” the new evidence, we
“recommend[ed] that the appellants seek appropriate relief
from the District Court.” Id. at 1076.
Accordingly, although we affirmed the Anti-Hunger
district court’s decision, “we did not explicitly approve the
judge’s reasoning relating to the supposed staff groups; rather,
we rejected an effort to challenge his decision based on new
information not in the record.” Ass’n of Am. Physicians &
Surgeons, 997 F.2d at 912. To be sure, we said in Anti-Hunger
that we “approve[d] the reasoning” of the district court. 711
F.2d at 1072. But we did not explain which part of the district
court’s reasoning we approved or why. Instead, the appellant
argued that, even under the district court’s “directness” test,
new evidence revealed that they were entitled to relief. Id.Therefore, because the correctness of the district court’s legal
reasoning was not necessary to the decision in Anti-Hunger,
any language purporting to “approve” the district court’s
reasoning is dicta. See Lockheed Corp. v. Spink, 517 U.S. 882,
889 n.3 (1996) (discussion of questions “not at issue” is dicta).
14
Still, even assuming our decision in Anti-Hunger fully
endorsed the district court’s reasoning, Anti-Hunger differs
from this case in three key respects.
First, unlike here, the task forces in Anti-Hunger were not
established by the government—instead, they were created by
a nonprofit corporation that contracted with the government to
“provide assistance to the [FACA] Committee including
facilities and staff support.” 557 F. Supp. at 526 (noting that
the nonprofit corporation “organized thirty-six task forces”)
(internal quotation marks omitted). Here, the fact that the
FAA, as opposed to the DAC, created the subgroups makes it
more likely that their advice is intended “for” the FAA rather
than exclusively “for” the DAC. See 5 U.S.C. app. 2, § 3(2);
California Forestry, 102 F.3d at 610–12.
Second, it does not appear the task forces in Anti-Hunger
were even providing advice. Instead, they were organized as
staffing groups. Anti-Hunger, 557 F. Supp. at 526 (explaining
that the nonprofit would provide “facilities and staff support”
and that the task forces would “do the ‘preliminary work of the
survey, including fact-gathering, statistical evaluations, and the
formulation of preliminary reports’”); see also Exec. Order No.
12369, President’s Private Sector Survey on Cost Control in
the Federal Gov’t, 47 Fed. Reg. 28,899 (June 30, 1982)
(providing that the nonprofit organization could provide “staff
support” to the Committee). Because there was “no reliable
evidence that the task forces . . . ha[d] gone beyond such
functions and . . . actually started advising agencies on policy
recommendations,” the district court rejected the contention
that they were acting as FACA committees. 557 F. Supp. at529–30 (“The depositions also suggest that the agency
employees meeting with the task force members did not regard
their discussions as advisory[.]”).
15
That’s a key distinction from this case, where the organic
documents themselves specifically require the subgroups to
develop advice. See J.A. 72 (providing that the subgroups are
“established to develop recommendations”); id. at 75
(providing that the task groups will “assist in developing UAS
integration related recommendations”). It is uncontested that
the subgroups perform functions well beyond mere “fact-
gathering, statistical evaluations, and the formulation of
preliminary reports.” See Anti-Hunger, 557 F. Supp. at 526. In
fact, the government concedes that the DACSC and the task
groups provide recommendations and advice. See Appellee’s
Br. at 24 (explaining that the DACSC and the task groups
“provided advice” and “gave draft recommendations” to the
DAC). This distinction matters, because the reasoning of Anti-
Hunger hinged not only on the directness of the alleged advice,
but also on whether the subgroups were providing “advice” at
all.
Third, unlike Anti-Hunger, this case is in the pleading
stage. The Anti-Hunger district court granted summary
judgment because there was “no reliable evidence” that the task
forces were offering advice or transmitting such advice directly
to the President. Id. at 529. But this case hasn’t reached the
discovery phase, and the plaintiff’s burden to defeat a motion
to dismiss is modest. When reviewing a motion to dismiss, we
must “assume the truth of all of plaintiffs’ plausibly pleaded
allegations[] and draw all reasonable inferences in their favor.”
Agnew v. D.C., 920 F.3d 49, 53 (D.C. Cir. 2019). In Anti-
Hunger, we suggested that where a subgroup is providing
recommendations and a FACA committee is “rubber
stamping” those recommendations “with little or no
independent consideration,” the subgroup might fall within
FACA’s coverage. 711 F.2d at 1075–76. Here, EPIC has made
allegations that, if proved, could establish such a claim. See id.16
EPIC’s complaint alleges that “FAA officials have
repeatedly circumvented the full DAC and worked directly
with the Subcommittee.” J.A. 51 ¶ 31. Specifically, EPIC
asserts that “FAA officials have briefed and educated the
DACSC, . . . provided guidance and assistance to the
DAC[SC], . . . and personally participated in multiple DAC
meetings at which the [DACSC] delivered reports on its work.”
J.A. 51 ¶ 32 (cleaned up). In this respect, the fact that a high-
ranking FAA official presided over both the DAC’s and the
DACSC’s meetings is important, because it makes it more
plausible that the DAC was largely rubber-stamping the
subgroups’ recommendations, as the DFO has a great deal of
control over both the DAC and the subgroups. See 5 U.S.C.
app. 2 § 10(e); J.A. 72, 175.
In rejecting EPIC’s “rubber stamping” allegations, neither
the majority nor the District Court construed those allegations
in the light most favorable to the plaintiff, as required by our
precedent. See Agnew, 920 F.3d at 53. While some portions
of the exhibits attached to EPIC’s complaint indicate that the
DAC deliberated over DACSC recommendations, see Maj. Op.
at 11, other portions support an inference that the DACSC was
advising the FAA—most notably, a statement at the May 3,
2017 meeting from the DACSC co-chair, who “indicated he is
looking forward to giving actionable advice to the FAA.” J.A.
132; see also J.A. 142–43 (noting that the “DAC Chairman . .
. thanked the rest of the FAA executive team for their guidance
and assistance to the DAC Subcommittee (DACSC)[.]”); J.A.
159 (noting that the DAC co-chair “thanked the FAA . . . for
providing encouragement to the DACSC to bring the best
thinking forward, including alternate views so the FAA gets the
benefit of the best substantive thinking”).
Even under the “directness” test proposed by the majority,
these statements plausibly allege that the subgroups were
17
advisory committees to the FAA. We must assume the truth of
these allegations. See Agnew, 920 F.3d at 53. Perhaps EPIC
will ultimately fail to prove that the DAC was rubber-stamping
the recommendations of the subgroups. But EPIC has
plausibly alleged that the DAC was doing so, and at this stage,
EPIC should thus be allowed discovery to find out one way or
another.
Furthermore, “[t]he choice between two plausible
inferences that may be drawn from factual allegations is not a
choice to be made by the court on a Rule 12(b)(6) motion,”
Anderson News, LLC v. Am. Media, Inc., 680 F.3d 162, 185 (2d
Cir. 2012), though the majority makes that choice here, see
Maj. Op. at 11 n.2. “‘Plausibility’ in this context does not
imply that the district court should decide whose version to
believe, or which version is more likely than not. Indeed, the
Court expressly distanced itself from the latter approach in
Iqbal, ‘the plausibility standard is not akin to a probability
requirement.’” Swanson v. Citibank, N.A., 614 F.3d 400, 404
(7th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted)).
Before concluding, I note that nothing about my reading
of section 3(2) would treat every FACA committee subgroup
as a standalone FACA committee. If the government wants to
allow for subgroups to assist FACA committees without
subjecting them to FACA, there are at least two ways for this
to happen under the text. First, instead of the government
establishing the subgroups, the FACA committees may, in their
own discretion and free of government control, establish the
subgroups themselves. In that case, the subgroups are free to
provide advice or recommendations to the FACA committee,
because they have not been “established” by the government.
See 5 U.S.C. app. 2 § 3(2). Alternatively, the government may
establish the subgroups, but require that they provide only
18
staffing work—such as “gathering information, developing
work plans, [and] performing studies”—and prohibit them
from providing “advice or recommendations.” Cf. Anti-
Hunger, 557 F. Supp. at 529.
We should look with suspicion upon agency efforts to
circumvent FACA by using subgroups. See Sofamor Danek
Grp., Inc. v. Gaus, 61 F.3d 929, 937–38 (D.C. Cir. 1995)
(“[U]nlike Congress, a federal agency lacks power to exempt
advisory committees from FACA and, hence, its motive in
characterizing a committee’s goal may, depending on the
circumstances, be suspect.”). Here, EPIC alleges in its
complaint and exhibits incorporated thereto that the
recommendations of the subgroups were largely developed in
secret by multinational corporations with a direct financial
interest in drone policy. But because the FAA drafted the
enabling documents to require that the subgroups’ advice be
filtered through a nominal FACA committee, the majority
prohibits EPIC from discovering the extent to which these
allegedly self-interested members influenced the deliberations.
Surely, that’s not what Congress intended when it passed
FACA. See Pub. Citizen, 491 U.S. at 459 (“FACA’s principal
purpose was to enhance the public accountability of advisory
committees established by the Executive Branch[.]”); 5 U.S.C.
app. 2 § 5(b)(3) (in establishing any new FACA committee,
Congress must “assure that the advice and recommendations of
the advisory committee will not be inappropriately influenced
by the appointing authority or by any special interest, but will
instead be the result of the advisory committee’s independent
judgment”).
In sum, though I concur with the majority that the
“records” of a subgroup are not necessarily disclosable as the
records of the parent committee under 5 U.S.C. app. 2 § 10(b),
I respectfully dissent from its conclusion that EPIC failed to
19
plausibly allege that these particular subgroups were FACA
committees in their own right.