995 F.3d 993
D.C. Cir.2021Background
- FAA created the Drone Advisory Committee (DAC) under FACA to develop recommendations on integrating drones into national airspace; the DAC had a designated federal official (DFO).
- The DAC had a two-tier structure: one subcommittee (DACSC) and three task groups established to develop draft recommendations, but their charters explicitly forbade sending recommendations "directly to the FAA"—all recommendations had to be vetted and approved by the DAC in public meetings.
- The subgroups produced drafts, progress reports, and internal minutes; some subgroup drafts were presented to the DAC and those materials were disclosed after litigation, but other subgroup documents were never given to the DAC (e.g., subgroup minutes, abandoned drafts).
- EPIC sued under FACA § 10(b) seeking disclosure of all documents "made available to or prepared for or by" the DAC or any DAC subcomponent; the district court held DAC documents were covered but the subgroups were not advisory committees and their unshared records were not DAC records.
- On appeal, the D.C. Circuit affirmed: (1) the subcommittee and task groups were not FACA "advisory committees" because they advised the DAC (the parent committee), not the FAA directly; and (2) § 10(b) does not require disclosure of subgroup-created records that were never given to the DAC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DAC subcommittee and task groups are "advisory committees" under FACA | Subgroups were established/ utilized by FAA to develop advice "for" the FAA; FAA control, DFO attendance, and press releases show they were intended to benefit FAA | Subgroups only advised the DAC (not FAA); charters expressly forbade direct submissions to FAA; GSA regs and precedent treat subgroups that report only to a parent committee as not covered | Subgroups are not FACA advisory committees — they advised the DAC, not the FAA directly |
| Whether subgroup records never provided to the DAC are covered by FACA § 10(b) as DAC records | Records of a subgroup should be treated as records of the parent committee (analogous to agency component records under FOIA) and thus disclosable | §10(b) covers records "made available to or prepared for or by" the covered advisory committee; documents never provided to the DAC were prepared for/by subgroups and therefore not DAC records | §10(b) does not extend to documents created by subgroups that were never given to the DAC |
| Whether EPIC plausibly alleged that the DAC "rubber-stamped" subgroup recommendations (making subgroups effectively advising FAA) | Allegations and some meeting material indicate FAA officials worked directly with subgroups and DAC may have been a rubber-stamp, so discovery is warranted | Administrative record (DAC minutes) shows iterative deliberation and amendments by the DAC; allegations do not plausibly overcome documentary evidence | Majority: district court properly dismissed these claims on the pleadings; concurrence/dissent would have allowed discovery based on plausible allegations |
Key Cases Cited
- Metcalf v. Nat’l Petroleum Council, 553 F.2d 176 (D.C. Cir. 1977) (distinguishes parent advisory committees from their subgroups for FACA coverage)
- Nat’l Anti-Hunger Coal. v. Exec. Comm. of the President’s Priv. Sector Survey on Cost Control, 711 F.2d 1071 (D.C. Cir. 1983) (task forces that do not directly advise the government are not FACA committees)
- Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (FACA covers the entity that gives advice to government, not subordinate advisers)
- California Forestry Ass’n v. U.S. Forest Serv., 102 F.3d 609 (D.C. Cir. 1996) (advice is "for" an agency where circumstances show the agency intended to use it)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency regulations merit respect under Skidmore deference)
- Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) (FACA’s purpose and requirements; agency cannot exempt advisory committees from FACA)
- Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) (individual committee members may obtain documents relied on by other members under §10(b))