Bеfore the Court are Defendants’ Motion for Summary Judgment and Plaintiffs’ Motion for Preliminary Injunction. For the following reasons, both Motions are DENIED.
A. BACKGROUND
This litigation arises out of the formation of the Community-Based Mitigation Committee (“CBMC”), which was created to offer advice as to how the Army Corps of Engineers (“Corps”) could best mitigate the negative impact to the community of the Industrial Canal lock modernization project in New Orleans, Louisiana. The Plaintiffs, who consist of several individuals and community organizations, contend that the CBMC is an “advisory committee” within the meaning of the Federal Advisory Committee Act, 5 U.S.C.App. 2 §§ 1-15 (“FACA”), because, they argue, it was established or utilized by the Corps pursuant to Congressional directive in the interest of obtaining advice or recommendations as to the creation of a community impact mitigation plan. Accordingly, Plaintiffs bring suit tо compel the Corps to abide by FACA’s requirements. Relying primarily on two opinions from the D.C. Circuit which interpret FACA, 1 the Corps responds that it neither established nor utilized the CBMC and, therefore, that the CBMC is not a FACA advisory committee. Accordingly, the Corps opposes Plaintiffs’ motion for a preliminary injunction and moves for summary judgment.
The Inner Harbor Navigational Canal, commonly referred to as the “Industrial Canal,” serves as a vital link in the Gulf Intracoastal Waterway System, making navigation between the Mississippi River in New Orleans and the Gulf Intracoastal Waterway and Mississippi River-Gulf Outlet possible. Since at least 1960, the Corps has contemplated upgrading the connecting channel and replacing the Canal’s existing lock, which has been in operation since the 1920s and, in the Corps’ opinion, has become obsolete. The Corps has devisеd a plan to accomplish these modernization goals, which, by all accounts, will be a major undertaking that will significantly impact the communities surrounding the Canal.
Out of concern for this impact, the House and Senate Appropriations Committees recommended that the Corps involve the community in the lock modernization project. In their 1991 reports, the Committees directed the Corps to “develop a comprehensive plan to identify and mitigate to the maximum extent practicable any adverse social and cultural impacts of the project.” H.R. Rep. No. 101-536, at 28 (1991); S. Rep. No. 101-378, at 26 (1991). The Committees also directed the Corps “to implement a community participation process with affected residential, business, and governmental entities,” which “shall include involvement of representatives of еxisting community associations and business groups in the areas adjacent to the Industrial Canal as well as representatives of local government.” H.R. Rep. No. 101— 536, at 28; S. Rep. No. 101-378, at 25-26. As part of the process, the Committees directed the Corps to “designate an advisory group for the purposes of exchanging information and receiving community opinion and advising the District Engineer on various aspects of the project.” H.R. Rep. No. 101-536, at 28; S. Rep. No. 101-378, at 26.
In 1996, Congress passed legislation requiring the Corps to develop a “community impact mitigation plan.” Section 326 of the Water Resources Development Act 1996, Pub.L. No. 104-303, 110 Stat. 3658, states in part that
the Secretary shall implement a comprehensive community impact mitigation plan, as described in the evaluation report of the New Orleans District Engineer dated August 1995, that, to the maximum extent practicable, provides for mitigation or compensation, or both, for the direct and indirect social and cultural impacts that the project ... will have on the affected areas....
The District Engineer report referenced in the 1996 Act states in pertinent part:
To ensure that the mitigation plan is effectively implemented with full consideration and coordination with the neighborhoods, a neighborhood oversight committee will be established to oversee implementation of the mitigation features. Representatives of the four (4) affected neighborhoods that reside in the area will serve on the committee in an advisory capacity. In addition, specialists and/or professionals working on specific community issues will also be invited to assist the committee as advis-ors. The two city councilpersons representing each side of the canal will also be invited to participate. .This represents the framework of a process that could be used. Details of the committee will be finalized during future coordination that would continue through the design and construction phases of the project.
In the wake of these Congressional directives, the Corps decided that a “Community-Based Mitigation Committee” should be formed. How this CBMC was formed is at the epicenter of this controversy.
It is undisputed that the Corps decided to hire a private contractor to play a role in the CBMC’s formation. In a Public Notice which appeared in the New Orleans Times-Picayune on April 3, 1999 the Corps announced its intention to develop a “Community Impact Mitigation Plan.” The Notice stated that “Community involvement is required, and this Public Notice seeks proposals for a contractor(s) to carry out this feature.” According to the Notice, the successful contractor(s) “will serve the lead role in the establishment of a Community-Based Mitigation Committee (CBMC) and the development of a Partnering Agreement,” and, among other duties, will “serve as facilitator(s) for the CBMC in its proceedings, including the development of the mitigation plan recommendations and annual program reviews.”
The Corps states that it received nine proposals in response to its Public Notice and, using the “best value” method of evaluation, selected a consultant team led by Gregory C. Rigamer and Associates, Inc., which refers to itself in the lower case as “g.c.r.” The team also included Metro Source, L.L.C., the University of New Orleans and the New Orleans Area Habitat for Humanity.
On September 30, 1999 the Corps and g.c.r. signed a contract, which set forth its requirements in a series of “phases.” Phase 1 required g.c.r. to prepare a “plan of action,” consisting of g.c.r.’s “recommendations for the selection of potential CBMC members and advisors, and the preparation of a draft Partnering Agreement.” The purpose of the Partnering Agreement, which plays a central role in this litigation, was to obtain a commitment from everyone involved in creating the mitigation plan to work together in good faith for the benefit of the community, despite any opposition to the lock modernization project itself. Phase 2 required g.c.r. “to take the lead role in the establishment of the CBMC” and to work “in partnership with the [New Orleans District] to recruit committee members and advisors.” Phase 3 involved the development of the “needs assessment” and the “first three-year program.” The objective of the needs assessment, which g.e.r. was to facilitate, was for the “CBMC to update previous studies and identify current community needs in reference to project impacts and opportunities.” Contemporaneously, g.c.r. was to facilitate the CBMC’s “recommendations for the first three years of the Community Impact Mitigation Plan.” Phase 3 also required g.c.r. to provide administrative, technical and profes
According to the available evidence, in forming the CBMC, g.c.r. contacted numerous organizations, which were requested to appoint their own representative to the committee. The contract and g.e.r.’s plan of action indicate that these organizations were identified by g.c.r. and their selection was subject to the approval of the Corps. 3 Meanwhile, g.c.r. also established a public application process in order to select at-large members from the affected neighborhoods. The organizational representatives had veto power over g.c.r.’s recommendations for at-large members.
Once assembled, g.e.r. held a workshop for the CBMC on February 12, 2000. In attendance were representatives from the Holy Cross Neighborhood Association, the By-water Neighborhоod Association, the Lower Ninth Ward Neighborhood Council, the Desire/Florida Area Community Council, the St. Claude Merchants Association, the Holy Cross School and St. Bernard Parish, as well as a faith-based representative, the at-large members, and Corps personnel. The purpose of the workshop was twofold. First, the CBMC was to come to a consensus on' a “Partnering Agreement,” a draft form of which was provided by g.c.r. Second, the CBMC was to set the rules and guidelines for its proceedings.
On February 24, 2000 the Corps and the majority of the members of the CBMC entered into the first three sections of the Partnering Agreement. 4 According to the Agreement, the role of the Corps in the mitigation process includes ensuring “maximum feasible community participation in the mitigation process” and the faithful implementation of the “provisions of the Corps-approved Community Impact Mitigation Plan developed by the CBMC.” Its responsibilities include ensuring maximum feasible participation of the affected community through the CBMC process; providing technical assistance and facilitation support to the CBMC to ensure informed decision-making; attending the CBMC meetings to answer questions and provide information and otherwise participate as appropriate in the proceedings of the committee to ensure an open and continuous dialogue between the parties; carefully reviewing the CBMC recommendations for the Community Impact Mitigation Plan and quarterly updates as available to ensure consistency with Federal laws and regulations, annual funding constraints, and prudent expenditure of authorized mitigation funding; clearly communicating Corps concerns about problematic elements of the Community Impact Mitigation Plan recommendations to the CBMC and allowing for response by the committee; informing the CBMC of Corps approval of the Community Impact Mitigation plan recommendations and implementation plans and schedules; and faithfully implementing the Corps-approved Community Impact Mitigation Plan and providing progress and status reports on a regular basis to the CBMC and the impact community.
Not all of the CBMC members agreed to sign the Partnering Agreement. Three members of the CBMC, including the representatives of the Holy Cross Neighbor
On March 30, 2000, the CBMC voted to have their working meetings closed to the public. By a 10 to 1 vote, the CBMC approved a member’s motion to limit thе “working sessions” of the CBMC to its membership with “general public information meetings” scheduled on a periodic basis.
The CBMC’s decision to close its meetings provoked the first wave of lawsuits in this litigation. First, on June 13, 2000, the Holy Cross Neighborhood Association, Citizens Against Widening the Industrial Canal, Pamela Dashiell, Mary Patsy Story, and John Keoferl filed a Complaint for' Declaratory Judgment and Injunctive Relief against Col. Julich and other Army officers. In their Complaint, Plaintiffs contend that the Corps has violated FACA “by closing the meetings of the ... CBMC ... and denying them their statutory right to attend and participate at the CBMC meetings.” Plaintiffs seek a declaratory judgment that Defendants are violating FACA and request a temporary restraining order and preliminary and permanent injunctions requiring the CBMC meetings to be open to the public. On June 15, 2000, Plaintiffs’ TRO motion was denied on the grounds that Plaintiffs failed to demonstrate that the CBMC’s June 15 closed meeting would result in irreparable injury. The Court deferred ruling on Plaintiffs’ motion for a preliminary injunction.
Two additional lawsuits followed. On June 16, 2000, the Association of Community Organizations for Reform Now (“ACORN”), Octavia Turner, and David Leonard filed a Complaint for Declaratory Judgment and Injunctive Relief against the same defendants. ACORN alleges that it attempted to place an organizational representative on the CBMC but was denied. ACORN’s Complaint is substantially similar to the Holy Cross Complaint, but seeks only a declaratory judgment and permanent injunction. On June 22, 2000, All Congregations Together (“ACT”) filed a Complaint for Declaratory Judgment and Other Relief against Col. Julich and other Army officers, as well as g.c.r., Metro-Source, and the CBMC itself. Like ACORN, ACT alleges that it is not directly represented on the CBMC. In addition to challenging the CBMC’s closed meeting policy, ACT also contends that the Defendants have violated FACA and the Corps’ Congressional mandate by “failing to compose a citizens committee ... that is fairly balanced in terms of the points of view represented and the functions to be performed by the citizens committee and by failing to ensure maximum feasible public participation and representation in the committee’s project....” Because the determination of whether the CBMC is a FACA advisory committee comprises a material part of all three actions, the Holy Cross, ACORN and ACT suits were consolidated pursuant to Local Rules 3.1 and 3.1.1E.
B. LAW AND ANALYSIS
Currently before the Court are two motions, Holy Cross’ Motion for a Prelimi
1. The Federal Advisory Committee Act
Congress passed the Federal Advisory Committee Act, or FACA,
5
in 1972 to accomplish two main objectives. First, Congress wished to reduce the influence exerted by special interests on agency decision makers through advisory committees. Second, Congress wished to promote administrative efficiency and reduce costs by weeding out unnecessary or obsolete advisory committees.
See
FACA § 2 (findings and purpose);
Public Citizen v. United States Dep’t of Justice,
FACA § 3(2) defines “advisory committee” broadly as
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as “committee”), which is-
(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, except that such term excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government, and (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration. 6
Despite the potential breadth of this definition, not every agency attempt to solicit advice from the public results in the creation of a FACA “advisory committee.”
7
In
Public Citizen,
the Supreme Court rejected a plain-meaning interpretation of FACA and instead read the statute narrowly in light of its purposes and legislative history.
Here, there is little question that the CBMC was a “committee, board, commission, council, conference, panel, task force, or other similar group” formed to provide “advice or recommendations” to the Corps’ New Orleans District in developing a com
2. Was the CBMC Established by the Corps?
In two leading cases,
Food Chemical News v. Young,
In
Byrd,
the panel majority rejected the plaintiffs argument that the EPA had “еffectively created” an advisory committee by “conceiving of the need for it” and “implementing it by hiring a private consulting firm to handle the logistics.”
In the case at bar, there is no question that the Corps, like the EPA in Byrd, retained “significant potential authority” in the committee selection process. The parties disagree over whether the Corps, unlike the EPA in Byrd, actually exercised that authority. By affidavit, Gerald J. Dicharry, Jr., Senior Project Managеr for the New Orleans District, testified that although the Corps made “general comments” about potential organizational members, it “relied on the advice of gcr [sic] and exercised no veto or ratification of the proposed list of represented organizations” or with respect to the at-large members. Dicharry states that the Corps “did not exercise formal approval of gcr’s [sic] recommendations.” The Plaintiffs, however, paint a different picture, arguing that the Corps played a substantial and very real role in selecting the CBMC’s members. Most significantly, the Plaintiffs point to the letters Col. Julich sent to the Holy Cross Neighborhood Association representatives informing them that they would be removed from the CBMC if they refused to sign the Partnering Agreement. The Corps rebuts the significance of this evidence, however, by assеrting that g.c.r. requested that the Corps send these letters,, presumably on the assumption that the holdouts would give more weight to a statement from the Corps than from the consulting firm.
The Plaintiffs also argue that g.c.r. was an “agent” of the Corps. “By making g.c.r. its agent,” Holy Cross argues, “the Corps retained the right of complete control over g.c.r.’s actions in connection with the CBMC.” Plaintiffs believe this retention of “complete control” demonstrates that the Corps actually established the CBMC. Plaintiffs also point to the language in the contract which states that g.c.r. was to serve the “lead role in the establishment of the CBMC,” implying therefrom that the Corps intended to and
The Court finds Plaintiffs’ agency argument foreclosed by
Byrd.
The consulting firm in
Byrd
clearly could have been characterized as an “agent” of the EPA in implementing its call for an advisory pаnel. And, just like the consulting firm in
Byrd,
g.c.r. “received a ‘task order’ or ‘work assignment’ from the relevant agency defining the objective, the method and the scope” to be used in generating the proposed work product.
The letters from Col. Julich, however, create a genuine issue of material fact as to whether the Corps actually exercised its authority in selecting the members of the CBMC. 9 If these letters demonstrate the Corps’ actual participation in selecting the CBMC’s membership, then the Court might have to conclude that the Corps established the CBMC. Summary judgment is, therefore, improper.
3. Was the CBMC Utilized by the Corps?
The Supreme Court’s decision in Public Citizen centered primarily on the meaning of the term “utilized” within FACA. In a passage often quoted in the FACA jurisprudence, the Supreme Court observed that
“Utilize” is a wooly verb, its contours left undefined by the statute itself. Read unqualifiedly, it would extend FACA’s requirements to any group of two or more persons, or at least any formal organization, from which the President or an Executive agency seeks advice. We are convinced that Congress did not intend that result.
The phrase “or utilized” ... appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of the term, encompassing groups formed indirectly by quasi-public organizations such as the National Academy of Sciences “for” public agencies as well as “by” such agencies themselves.
Despite the Supreme Court’s use of the term “generous” in
Public Citizen,
it is quite clear that it and the lower courts have interpreted the term “utilized” quite stingily. In
Animal Legal Defense Fund, Inc. v. Shalala,
Second, a committee created by a “quasi-public institution” to provide advice to an agency is utilized by that agency.
Animal Legal Defense Fund,
Relying primarily on Food Chemical News and Byrd, the Corps argues that it has not utilized the CBMC within the meaning of FACA section 3. The Corps argues that the CBMC does not meet the first prong of the utilize test, ie. management and control, because the Corps is not formally represented on the committee and plays no part in setting its agenda or in scheduling or directing its meetings. Although Corps personnel have attended CBMC meetings, the Corps states that its personnel have been excluded from the meetings on occasion and, even when present, offer nothing more than information relevant to the CBMC’s discussions. The Corps argues that the CBMC fails to satisfy the second prong of the utilize test, i.e. establishment by a quasi-public organization, because g.c.r., a private contractor, formed the CBMC.
In shairp contrast, Plaintiffs argue that the Corps
does
exercise actual management and control over the CBMC. First, Plaintiffs argue that the Partnering Agreement establishes a direct relationship be-tweén the Corps and the CBMC that was lacking in
Byrd
and
Food Chemical News,
through which the Corps can exercise influence and control. Second, Plaintiffs contend that, unlike in
Food Chemical News
and
Byrd,
where the advisory committee provided a report to the consulting firm, which in turn modified that report and presented it to the agency, here “g.c.r. acts merely as a scribe, writing up the results, conclusions and recommendations” of the CBMC without using or changing them. In other words, Plaintiffs argue that the CBMC’s recommendations essentially pass unaltered to the Corps through g.c.r. Third, Plaintiffs argue that the Corps’ retention of the ultimate approval authority over the CBMC’s recommendаtions equates to actual control over the
Several of Plaintiffs’ arguments can be dismissed as a matter of law. For example, Washington Legal Foundation clearly states that agency presence and even a certain degree of agency participation at a committee meeting does not equal control, and the evidence here overwhelmingly indicates that the Corps attended the CBMC meetings only to provide the CBMC with information.relevant to their deliberations. Similarly, in most (if not all) of the FACA cases discussed above, the agencies were free tо accept or reject the committee’s recommendations. For example, in Food Chemical News, the expert panel was convened to identify “general and specific issues associated with the safety of food and cosmetics” for consideration by the Food and Drug Administration in promulgating future regulations. There is no indication that the FDA was bound to incorporate these issues into its regulative program— indeed, such an assumption would be unreasonable — yet, the D.C. Circuit held that the panel was not a section 3 advisory committee. Thus, it is of no moment that the Corps retains ultimate approval authority over the CBMC’s recommendations.
This said, genuine issues of material fact surround the Partnering Agreement, the report to be submitted to the Corps, and the letters from Col. Julieh. The evidence suggests that g.e.r. might alter the CBMC’s recommendаtions significantly before it presents a final report to the Corps, 10 and the Court is not at all convinced that the Partnering Agreement amounts to much more than a public relations maneuver, but the remaining ambiguities counsel1 against summary judgment.- In sum, the Court finds that a genuine issue of material fact exists as to whether the Corps exercised actual management or control over the CBMC.
As to the second prong of the utilize test, the Court has already found that a genuine issue of material fact exists as to whether the Corps established the CBMC. Assuming arguendo that it did not, .the Court would be hard pressed to find that the Corps utilized the CBMC under the second prong of the Animal Legal Defense Fund/Byrd utilize test, as there is no question that g.e.r. is a wholly private government contractor. “If indeed a necessary prerequisite for a group to be a ‘utilized’ advisory committee is that it must have ‘quasi-public stаtus’ or must be created by an entity that has ‘quasi-public status,’ a ‘semiprivate entity the Federal Government helped to bring into being,’ or an ‘organization created or permeated by the Federal Government,’ ” Steven P. Croley and William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Reg. 451, 480 (1997) (referring to various formulations of the “quasi-public” prong of the utilize test), then the CBMC clearly was not “utilized” by the Corps.
4. If the Corps Did Not Establish the CBMC, Did It Violate a Congressional Mandate?
Taking a step outside the confines of FACA, Plaintiffs argue that, if the Corps did not establish the CBMC, then it violated its Congressional mandate to “designate an advisory group for the purposes of exchanging information and receiving community opinion and advising the District Engineer on various aspects of the project.” Whether this directive amounted to a clear mandate to establish a section 3 advisory committee is hotly debated.
As a preliminary matter, the Court must correct one inaccuracy in the Plaintiffs’ argument. The 1991 Appropriations Act, Pub.L. No. 101-514, 104 Stat. 2074, is silent as to the establishment of an advisory committee. Rather, it is the House and Senate Reports to this Act which discuss the advisory group requirement.
11
The reports do not constitute binding law; nonetheless, as the Court in
Public Citizen
noted, they are persuasive authority in interpreting a particular piece of legislation.
See
Even if Congress wanted the Corps to “designate” an advisory committee, the Court is not convinced that the Corps violated that mandate by hiring a private contractor to do the technical work. The Court’s concern revolves around the word “designate.” Plaintiffs essentially argue that Congress ordered the Corps to “establish” a section 3 advisory committee, which, as discussed above, would rеquire the Corps to
directly
establish the advisory committee. Thus, they conclude, the Corps either (1) violated the law by
indirectly
establishing an advisory committee or (2) illegally delegated its authority to
directly
establish an advisory committee to a private entity. However, the Court finds it significant that the House and Senate Reports instruct the Corps to “designate,”
not
to “establish,” an advisory group. Although this may seem like a distinction without a difference, the Court presumes that Congress is aware of the technical usage of statutory terms, especially when subsequent legislation potentially implicates a particular, pre-existing statute. In other words, when the Appropriations Committees ordered the Corps to “designate” a group that certainly sounds like a section 3 advisory committee, the Court can assume that the Committees used the word “designate” to remove this group from the section 3 definition.
12
Thus, the Court finds it reasonable to assume that Congress intended to give the Corps discretion in deciding whether to create a formal FACA committee or to avoid the
In any event, even if Congress did intend for the Corps to directly establish a section 3 advisory committee, 13 the Court need not decide at this point whether the Corps violated this mandate. As noted above, the Court finds a genuine issue of material fact as to whether the Corps established the CBMC. If the Corps did establish the CBMC, then Plaintiffs’ argument is mooted.
5. Is a Preliminary Injunction Warranted?
Under Federal Rule of Civil Procedure 65, a preliminary injunction is available only where the mover shows: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunctiоn will result in irreparable injury; (3) that the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) that the injunction will not disserve the public interest.
See America’s Favorite Chicken Co. v. Kim,
Plaintiffs allege that they will suffer two forms of irreparable harm if a preliminary injunction is not granted. First, Plaintiffs contend that their FACA right to open meetings will be permanently lost unless the Court enjoins the CBMC’s practice of conducting closed meetings. See FACA § 10(a)(1). Second, Plaintiffs contend that their FACA right to “attend, appear before, or file statements” with the CBMC will be permanently lost unless the Court enjoins the closed meetings. See FACA § 10(a)(3). Plaintiffs further contend that these threatened harms outweigh the potential harm to the Corps and to the public were an injunction to issue.
The Court finds that Plaintiffs have failed to demonstrate a substantial and irreparable harm. As the Supreme Court held in
Public Citizen,
FACA is best applied in light of its underlying purposes. As noted above, one of the goals of FACA is to reduce the influence exerted by special interests on agency decision makers through advisory committees by ensuring the openness and accountability of such committees. The facts presented to the Court indicate that, despite its closed meetings, the CBMC has been operating in the open. Its minutes are transcribed almost vеrbatim and posted on a website within approximately a week. This website also indicates when the next meeting of the CBMC will be. Thus, although the
C. CONCLUSION
The case at bar poses several challenging and novel legal issues with respect to the Federal Advisory Committee Act. On the evidence before the Court, these issues are not ripe for decision, and no harm likely will come by waiting. Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment and Plaintiffs’ Motion for Preliminary Injunction are DENIED.
Notes
.
Byrd v. United States Environmental Protection Agency,
. Following Phase 3, the contract provides for three optional phases, which would entail a review of the program and recommendations for extension of the three-year plan.
. The parties dispute whether the Corps actually exercised its approval authority.
. The remainder of the Partnering Agreement, which dealt with the CBMC’s code of conduct, was finalized on March 30, 2000.
. FACA is codified at 5 U.S.C.App. 2 §§ 1-15.
. Subsequent statutes have exempted specific advisory committees from FACA's requirements. See, e.g., 29 U.S.C. § 1302(h)(8) (advisory committee to Pension Benefits Guaranty Corporation not subject to FACA).
.These committees are sometimes referred to as "section 3 advisory committees.”
. The parties do make an issue out of the manner in which the CBMC’s recommendations will be communicated to the Corps, but this issue goes to whether the CBMC is "utilized” by the Corps.
. Plaintiffs also argue that the Corps "established” the CBMC because Congress required it to do so. This argument is a non-sequitur. Nonetheless, the Court finds Plaintiffs’ argument that Congress mandated the establishment of an advisory committee significant and discusses it below.
. Indeed, in light of the seemingly substantial "teсhnical assistance” g.e.r. provides to the CBMC, it might be a stretch to argue, as Plaintiffs do, that g.e.r. acts "merely as a scribe” in communicating the CBMC's opinions to the Corps.
. In fairness, it is the Holy Cross Plaintiffs who have made this error. The ACORN Plaintiffs expressly acknowledge that we are dealing with the report', not the Act itself.
. The reports in question were submitted approximately one year after the Supreme Court interpreted the terms "establish” and "utilize” in Public Citizen.
. If Congress did intend for the Corps to establish a section 3 advisory committee, this does not necessarily mean that it was unlawful for the Corps to employ the technical expertise of a private entity to carry out that directive. Supposing that the Corps could enlist a government contractor to establish an advisory committee on its behalf leads to an interesting question: under these сircumstances, could the resulting advisory committee be considered "utilized” by the Corps within section 3? Clearly, an affirmative answer would add a third prong to the utilize test where now there exist only two, but such a result is not without its theoretical justifications. For example, Professors Croley and Funk note that if the "quasi-public” test is "viewed as just one factor in deciding whether a private group is 'utilized' within the meaning of the FACA, then the term niay serve the purpose of preventing agencies from evading the FACA merely by having a private entity create a group which otherwise would be controlled by the agency.”
. The CBMC might want to consider steps to "open” their meetings without risking disruption, such as broadcasting their meetings over closed circuit television in the next room.