Katherine Anne MEYER v. George BUSH, Chairman, Task Force on Regulatory Relief, et al., Appellants.
No. 92-5029.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 18, 1992. Decided Jan. 8, 1993.
981 F.2d 1288
Even if we were to regard the “hardship” issue before the court and Board as essentially the same, however, we would have cause to doubt whether, under the regime of the NLRA, a district court finding in a section 10(j) auxiliary proceeding would later bind the NLRB when ruling, definitively, on the unfair labor practice charge and the remedy appropriate thereto. As counsel for Coronet acknowledged at oral argument, case law under the NLRA appears to include no instance of the Board having been bound in the manner Coronet urges. We note, in this regard, that section 10(f) of the NLRA,
B. Abuse of Discretion. Coronet, we stress, bears the burden of production and persuasion on the hardship defense it asserts. See, e.g., Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 957-58 (D.C.Cir.1988) (where a closing has been found retaliatory, the Board generally may order restoration unless “the Company [can] show that compliance with the order is unduly economically burdensome“) (emphasis added), cert. denied, 490 U.S. 1065, 109 S.Ct. 2063, 104 L.Ed.2d 628 (1989). Coronet utterly failed to carry that burden. Even if Coronet could be excused for failing initially to produce hardship evidence before the ALJ, the ALJ‘s decision alerted Coronet to the need for proof in the administrative record. Nevertheless, the company failed to petition the Board to reopen the record. Moreover, as the Board observed, Coronet still has an opportunity to show current hardship as cause for modification of the remedy at the compliance stage. In short, it was no abuse of discretion for the Board to decline to assume itself a proof burden properly assigned to the company, and Coronet is not without means to achieve relief if its hardship plea remains genuine.
For the reasons stated, we deny Coronet‘s petition for review and enforce the Board‘s order in full.
It is so ordered.
Douglas Letter, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Matthew M. Collette, Atty., Dept. of Justice, Washington, DC, were on the brief, for appellants.
Theresa A. Amato, with whom Alan B. Morrison and David C. Vladeck, Washington, DC, were on the brief, for appellee.
Before: WALD, SILBERMAN, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Dissenting opinion filed by Circuit Judge WALD.
SILBERMAN, Circuit Judge:
The district court, at the behest of the government, certified to us on interlocutory appeal the question whether President Reagan‘s Task Force on Regulatory Relief, headed by then-Vice President Bush and composed of certain cabinet members, is an “agency” for purposes of the Freedom of Information Act,
Soon after his inauguration in 1981, President Reagan embarked on an effort to reduce regulatory burdens on the economy. As part of that program, the President established a cabinet-level Task Force on Regulatory Relief which included the Vice President, the Attorney General, the Secretaries of the Treasury, Commerce and Labor Departments, the Director of the Office of Management and Budget (OMB), the Chairman of the Council of Economic Advisers, and the President‘s Assistant for Policy Planning. President Reagan directed the Task Force to “review pending regulations, study past regulations with an eye towards revising them and recommend appropriate legislative remedies.” As head of the Task Force, Vice President Bush named the Administrator for OMB‘s Office of Information and Regulatory Affairs (OIRA) as the Executive Director of the Task Force and a Special Assistant to the President as the Associate Director. Using staff from OMB, the Task Force operated from the Office of the Vice President.
President Reagan followed up the creation of the Task Force with Executive Order 12,291, which details the procedures for developing regulations and requires agencies to use cost/benefit analysis when making decisions. See Exec. Order No. 12,291, 46 Fed.Reg. 13,193 (1981). Agencies must issue a Regulatory Impact Analysis (RIA) for any regulations that have a significant effect on the economy—defined as “major rules” in the Executive Order. Subject to the direction of the Task Force, the OMB Director has the authority to review RIAs and to issue guidelines both for filing the RIAs and for identifying major rules. The Order also gives the OMB Director—subject to the Task Force‘s guidance—the authority, among other things: (1) to designate regulations as major rules; (2) to require agencies to seek additional information in connection with a regulation; (3) to require interagency consultation designed to reduce conflicting regulations; (4) to develop procedures for estimating the annual social costs and benefits of regulations; and (5) to prepare recommendations to the President for changes in agency statutes. Exec. Order No. 12,291, § 6. If any disagreements arise between an agency and OMB, the Task Force “shall resolve any issues raised under this Order or ensure that they are presented to the President.” Id. § 3(e)(1).
Thus, the Order authorized OMB, under Task Force guidance, to provide policy advice, to require agencies to seek interagency coordination, and even to delay regulatory proposals. But it did not confer any power to prevent an agency from carrying out its legal duty. The Order cautioned that the agencies must follow its provisions only “to the extent permitted by law.” Id. § 2. And § 8 exempts “[a]ny regulation for which consideration or re
The Task Force was in operation for two periods during the Reagan Administration. From 1981 to its initial termination in 1983, the Task Force reviewed and assessed regulations. In its “final report,” the Task Force stated that it had “designated a total of 119 of the most questionable [existing] rules and regulatory programs for high-priority agency reconsideration,” 76 of which the Administration took final action “to revise or eliminate,” and 27 of which received “partial action or formal proposals for change.” Under the Executive Order, OMB had reviewed 6,701 proposed and final regulations, including 89 final, and 53 proposed, “major” regulations. After a hiatus of three years, President Reagan reactivated the Task Force on December 15, 1986, and gave it much the same mission it had before. The Task Force was phased out after the transition to the Bush Administration.
On June 29, 1988, appellee submitted her FOIA request for documents held by “the Task Force on Regulatory Relief, Vice President George Bush, who Chairs the Task Force, or any other member of the Task Force.” Appellee sought three types of documents: “(1) [a]ll reports, which have been issued since February, 1981, concerning the accomplishments of the Task Force; (2) [a]ll reports, which have been issued since February, 1981, which list or identify the regulations that the Task Force has reviewed; and (3) all reports, memoranda, correspondence, or other written documents transmitted to or from the Task Force or any of its members since January 1, 1985, concerning the Task Force‘s review of or involvement in regulations that were or still are under consideration by the Environmental Protection Agency, the Food and Drug Administration, or the Occupational Safety and Health Administration.” After denying appellee‘s request, attorneys of the Vice President‘s office referred her to the OIRA Administrator, who also served as Executive Director of the Task Force.
Upon receiving appellee‘s renewed request, OMB officials conducted a search of publicly available reports and press releases, copies of Task Force documents located at OMB, and OMB‘s own files for records related to the Task Force. OMB did not conduct a search of the Vice President‘s files, which the government claimed were exempt from FOIA. In response to appellee‘s first two requests, OMB released only publicly available documents in its files. OMB identified eight “documents” covered by appellee‘s third request, but declined to provide them to appellee. The first seven documents are pages from briefing books prepared for the Vice President and other members of the Task Force (in 1987-88) for use during Task Force deliberations. They discuss agency regulations, the Task Force‘s staff analysis of those regulations, and policy recommendations to the Task Force. Copies of the briefing books were kept in “Task Force files” in the office of the OIRA Administrator, who, as it will be recalled, was also Executive Director of the Task Force. Although located at OMB, the files were segregated from OMB files. The government declined to produce these documents on the grounds that neither the Vice President nor the Task Force are “agencies” under FOIA.
The eighth document, a letter sent by the OIRA Administrator to Health and Human Services Secretary Bowen, contains “recommendations and guidance to be incorporated in future administrative and legislative proposals to improve the [FDA‘s investigational new drug] approval process,” according to OMB officials. OMB withheld the letter under exemption 5 of FOIA,
Appellee brought suit in the district court challenging the adequacy of the document search, the government‘s specific refusal to search the Vice President‘s files, and the withholding of the eight documents. On a motion for summary judgment, the government claimed that the first seven documents were not “agency” documents, that the eighth was exempt, and that the search was adequate. Denying the motion, the district court held that the documents were Task Force documents, not the Vice President‘s, and that the Task Force was an agency under FOIA. See Meyer v. Bush, Civil Action No. 88-3122, Mem. Op., 1991 WL 212215 (D.D.C. Sept. 30, 1991). According to the court, “the Task Force was not formed simply to advise and assist the President,” but rather “had substantial, independent, directorial authority.” Id. The court did not decide whether the government was obliged to search the Vice President‘s files, and, upon the government‘s motion, certified as appropriate for an interlocutory appeal the question whether the Task Force is an agency under FOIA.
II.
The district court applied the correct governing law in determining whether a body within the Executive Office of the President is a FOIA “agency.” As amended in 1974, the Act defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”
As clearly shown by the legislative history, however, Congress intended to codify our earlier decision (interpreting more general predecessor language) in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971).1 In
Shortly after Kissinger, in Pacific Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980), we decided that the Council on Environmental Quality (CEQ), an entity within the Executive Office of the President, was a FOIA agency. But subsequently in Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985), we distinguished the Council of Economic Advisers (CEA) from the CEQ and exempted it from FOIA. We did so even though the House Report (on which the dissent relies, dissent at 1298) explicitly listed the CEA as an agency under FOIA. We concluded that the subsequent Conference Report‘s adoption of the Soucie test directly had undercut the House Report. We conceded that “the statutes organizing CEA and CEQ are, for all practical purposes, identical.” Id. at 1041. Both organizations, moreover, performed duties, enumerated by statute, directed at providing advice and assistance to the President. CEQ differed, however, because several executive orders had given it the power to coordinate federal environmental programs and to issue guidelines to federal agencies for preparing environmental impact statements. Id. CEQ also had the authority to promulgate regulations—legally binding on the agencies—implementing the procedural provisions of the National Environmental Policy Act, 83 Stat. 852 (1970).2 See also Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 584-85 (D.C.Cir.1990). CEA had no similar power to issue formal, legally authoritative commands to entities or persons within or outside the executive branch. As we observed: “CEA is directed to appraise federal programs relative to a particular statutory policy and make recommendations to the President in that regard.” Rushforth, 762 F.2d at 1043. But the “CEA has no regulatory power under [its] statute. It cannot fund projects based on [its] appraisal, as OST might, nor can it issue regulations for procedures based on the appraisals, as CEQ might.” Id.
Appellee argues that the Task Force bore a closer resemblance to the CEQ than the CEA because it evaluated agency regulatory efforts and had authority to provide some direction over agency rulemaking. In other words, appellee focuses not on the
The core of the dispute between the parties, then, turns on the degree of independence from the President the Task Force exercised in its relations with the rest of the executive branch. Was the Task Force, in Soucie‘s words, “substantially independent,” or was its function “solely to advise and assist” the President? The latter phrase is not easy to apply literally. Every action taken by any executive branch official can be described as “assisting” the President. On the other hand, the line cannot be drawn to include all those who direct others in the executive branch because, contrary to the legislative history and Kissinger, under that approach the White House staff would be an agency. We can assume, however, that Congress
Thus, when we apply Soucie to those who help the President supervise others in the executive branch, we think it is necessary to focus on three interrelated factors. We must ask how close operationally the group is to the President, what the nature of its delegation from the President is, and whether it has a self-contained structure. Proximity to the President, in the sense of continuing interaction, is surely in part what Congress had in mind when it exempted the President‘s “immediate personal staff” without requiring a careful examination of its function.3 See H.R.REP. NO. 1380, 93d Cong., 2d Sess. 14 (1974). Therefore, the other units in the Executive Office, which are exempted because they “advise and assist the President,” would be those whose characteristics are similar to the White House staff—one of which is proximity to the President.4
Closely related to the proximity factor is the nature of the delegation. The greater the scope of the delegation—which also usually implies less continuing interaction with the President—the more independence an entity will exercise. Thus, Rushforth held that the CEA was not an agency because, unlike CEQ, CEA did not possess any delegated regulatory authority to supervise agencies. Similarly, we recently determined that the White House Counsel‘s Office is not a FOIA agency. National Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990). Unquestionably, the Chairman and members of the CEA and the White House counsel, like other senior White House officials close to the President, often give ad hoc directions to executive branch person
In this case, appellee contends that the Task Force exercised regulatory authority over executive branch agencies. That is not accurate. Executive Order 12,291 did not authorize either the Vice President or the Task Force, qua Task Force, to give directions to the executive branch. Instead, the OMB Director took up that responsibility under the Executive Order. For example, the Order says the Director of OMB shall have the authority to designate major rules “subject to the direction of the Task Force.” Exec. Order No. 12,291, § 3(b). The Director‘s other powers of review are only “subject to the direction of the Task Force.” Id. § 3(e)(1), § (3)(i), § 5(b), § 6(a), § 6(b). The Associate Director of OMB for OIRA also served as Executive Director of the Task Force, but the government does not even claim that his (or the Director‘s), written policy instructions to the agencies were “Task Force” documents. As the government concedes, those documents, like document eight, are OMB records subject to FOIA. Insofar as appellee is correct in arguing that the body which provided direction to the executive branch is an agency under FOIA, that body is OMB, not the Task Force.
A careful reading of the Executive Order—which, of course, is the most important indication of the Task Force‘s role—reveals that whatever significant authority the President delegated he gave to the Director of OMB. Although the appellee and the dissent blend together the responsibilities of both OMB and the Task Force, they are analytically quite distinct. The dissent‘s list of the “Task Force‘s” responsibilities, dissent at 1294, is, therefore—like Homer‘s catalogue of ships—exhaustive but quite beside the point. Also irrelevant, at least to this case, is the dissent‘s concern that OMB‘s directives implementing the Executive Order should be exposed, see
It remains to be determined, however, whether the Task Force‘s role, vis-a-vis the OMB Director and cabinet or agency heads, made the Task Force a FOIA agency. The Executive Order did give the Task Force the responsibility for providing “guidance” and “direction” to the OMB Director, and the authority to resolve disputes between agencies and OMB “or [to] ensure that they are presented to the President.” Exec.Order No. 12,291, § 3(e)(1). In that respect, however, the Task Force theoretically was positioned between the OMB Director and the President, placing the Task Force only a hair‘s breadth from the President. After all, the OMB Director, whose duties include aiding the President in managing the entire executive branch, is (as the dissent recognizes at 1307) the cabinet officer functionally, if not actually, closest to the President. The cabinet members serving on the Task Force, therefore, were acting not so much as the heads of their departments, but rather as the functional equivalents of assistants to the President (“immediate personal staff” are, it will be recalled, exempt from FOIA coverage). Furthermore, notwithstanding appellee‘s proffer of press releases—which is not reliable evidence—we see no indication that the Task Force, qua Task Force, directed anyone, including OMB, to do anything.5 When the Task Force wished directions given to the executive branch, it found it necessary to advise the President to put such instructions in another Executive Order. (See Exec. Order No. 12,498 § 1(d)). If the Task Force exercised all the powers which the dissent attributes to it, we would expect the Task Force to have generated more than only the seven documents that fell within appellee‘s FOIA request.
Nor does the dispute resolution mechanism of the Executive Order indicate that
Appellee suggests, however, that the Vice President‘s chairmanship of the Task Force gave the Task Force added clout and independent authority. The government responds that the Vice President‘s role made the Task Force even less plausible an agency under FOIA. Because of his constitutional position, according to the government, we must treat the Vice President and his staff in the same manner as the President and his staff. Indeed, appellee conceded at oral argument that if the Vice President alone held the exact duties of the Task Force, the Vice President would not be an agency for purposes of FOIA. See Armstrong v. Bush, 924 F.2d 282, 286 n. 2 (D.C.Cir.1991) (President and Vice President subject only to Presidential Records Act, not Federal Records Act).7
In any event, despite the Vice President‘s rank, we do not believe his status as Chairman lent the Task Force any authority independent of the President. The Vice President is the only senior official in the executive branch totally protected from the President‘s removal power. See Bowsher v. Synar, 478 U.S. 714, 721-27, 106 S.Ct. 3181, 3185-88, 92 L.Ed.2d 583 (1986) (presidential power to remove executive branch officials crucial to presidential control). Presidents are, for that reason, reluctant to delegate real supervisory authority over the executive branch to the Vice President. As Professor Rossiter has observed, it is dangerous for the President to give the Vice President administrative responsibilities “because the Vice President is not subject to removal” and so could become “a dagger aimed constantly at the precious unity of the executive power.” C. ROSSITER, THE AMERICAN PRESIDENCY 140 (2d ed. 1960); see also REPORT OF THE TASK FORCE IN A HEARTBEAT AWAY: REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON THE VICE PRESIDENCY 64-66 (1988). No matter how close the personal and functional relationship between a Vice President and President, the former, mindful of traditional presidential concerns, presumably will not express direction to others in the executive branch unless his view is shared by the President. The Vice President‘s chairman
The Task Force‘s lack of a separate staff further indicates the absence of independent authority. In Soucie, we implied that structure and function, for purposes of defining agency, are interrelated. “If the OST‘s sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President‘s staff and not a separate agency.” Soucie, 448 F.2d at 1075 (emphasis added). FOIA, by declaring that only “establishments in the executive branch” are covered,
It could be said that, in one sense, the President “established” the Task Force, albeit by informal presidential direction, and then later delegated to it certain functions under Executive Order 12,291. But the Task Force was simply a partial cabinet group. The President does not create an “establishment” subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem. Furthermore, the Task Force operated out of the Vice President‘s office without a separate staff, borrowing OMB personnel as needed. We doubt that any individual or group, within the Office of the President, without a separate staff, can be regarded as an “establishment” with independent authority. Veterans of bureaucratic wars will insist that the typical officer in
The dissent at 1312 n. 24 suggests that the Executive Order might distinguish this case from one in which the President merely instructs several cabinet officers, or a group of White House assistants (or perhaps the Chief of Staff), to perform the same duties. But that distinction appears inconsistent with the dissent‘s insistence that the crucial factor is the function performed by the entity in question. As we understand our colleague‘s reasoning, if the President had set up this exact structure by memorandum, or even by oral direction, the Task Force would still be a FOIA agency. So the Executive Order is, according to the dissent‘s logic, mere surplusage. See dissent at 1303 n. 9; see also dissent at 1301.
We do not think much should turn on whether the President delegates authority to a White House group by memorandum or by Executive Order.8 Otherwise, of course, a future President could avoid creating an agency under FOIA by informally delegating authority to an “establishment” in the Executive Office. As we have indicated, however, the structure of the group is important in determining its relative independence from the President. Function is crucial, but, like the architect
The dissent acknowledges that the President has a constitutional duty to see that the laws are faithfully executed, and, therefore, a duty to oversee the regulatory policies produced by the departments and agencies. See Sierra Club v. Costle, 657 F.2d 298, 406 (D.C.Cir.1981); Public Citizen v. Burke, 843 F.2d 1473, 1477-78 (D.C.Cir.1988). Nonetheless, the dissent insists that the choice the President makes between various techniques to perform this task can have enormous consequences under FOIA. If he performs this role alone, meeting with his cabinet officers and agency heads “face to face,” as our colleague puts it, he may keep the discussion entirely confidential (so long as the agency rule is justified by the record), Sierra Club, 657 F.2d at 407. But should he use a group of cabinet officers and perhaps White House staff in some sort of committee like the Task Force to screen the regulatory issues, he risks creating a FOIA agency. That approach empties the word “assist” in the Soucie test of all meaning.
The dissent does not dispute, however, dissent at 1311-12 & n. 23, that if the President used only White House staff in this manner, he would avoid FOIA altogether. In other words, if the President had set up this exact Task Force structure (including OMB‘s role) in this exact fashion (by Executive Order), but used senior White House staff personnel as his Task Force members, FOIA would not apply. If, on the other hand, a President employed his entire cabinet as his Task Force, the dissent insists that FOIA would apply. To be sure, the dissent does doubt that a President would ever delegate true independent authority to his cabinet.9 In light of that sound observation, however, it is difficult to understand why the dissent strains to construe the Executive Order as granting “substantial independent” authority to a partial cabinet group. And the dissent‘s
The dissent appears to recognize that the structure employed at least bears on the question whether the President has delegated independent authority. Dissent at 1311 n. 22. It would appear, then, that the line the dissent draws in this case is governed more by fortuitous history than by a logical principle. The dissent asserts over and over that in this case—structure aside—the Task Force was given “substantial independent” authority. But it is unclear just what factors distinguish this case from a multitude of similar arrangements that a President could use to accomplish the exact same ends—arrangements that the dissent is unwilling to categorize as covered by FOIA or not. See dissent at 1311 n. 23. As for our dissenting colleague‘s concerns about the President‘s ability to “shroud [the Task Force‘s] actions in absolute secrecy,” dissent at 1313, it is worth noting that when a President openly discloses exactly how he will review regulations—as, for example, by a Task Force mechanism—it might well be thought more forthright than the behind the scenes ad hoc approach sanctioned in Sierra Club.
In sum, the Task Force was not a body with “substantial independent authority” to direct executive branch officials. The various cabinet members of the Task Force were unquestionably officers who wielded great authority as heads of their departments. But there is no indication that when acting as the Task Force they were to exercise substantial independent authority, nor in fact, did they do so. Put another way, the whole does not appear to equal the sum of its parts. The cabinet officers were acting, in truth, just as would senior White House staffers. We think the dissent‘s characterization, moreover, of the Task Force as the “people” behind the scenes [or curtain?] “who call the shots” is
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Accordingly, for the reasons stated, we conclude that the Task Force was not an agency under FOIA. Having decided the issue certified to us, we remand the case to the district court.
It is so ordered.
WALD, Circuit Judge, dissenting:
A close examination of the Freedom of Information Act (“FOIA” or “the Act“) and its legislative history, the governing FOIA precedent, and the record of the Task Force‘s creation and functions demonstrates that the Task Force falls within the Act‘s definition of an “agency.” The majority opinion does not give due weight either to the applicable law or to the actual role the Task Force played in the President‘s regulatory reform program. Accordingly, I dissent.
I. BACKGROUND
A. Legislative History
Congress in 1974 amended the Freedom of Information Act to broaden the definition of “agency” to encompass more entities “which perform governmental functions and control information of interest to the public,” H.R.REP. NO. 876, 93d Cong., 2d Sess. 8 (1974),
Most significantly, Congress contemplated that “agency” would encompass entities, like the Task Force, which are created solely by executive order. The statutory language expanding the definition of an agency originated in the House bill, H.R. 12471. In its report accompanying that legislation, the House Committee on Government Operations stated:
For the purposes of this section, the definition of “agency” has been expanded to include those entities which may not be considered agencies under [the APA,
5 U.S.C. § 551(1) ], but which perform governmental functions and control information of interest to the public. The bill expands the definition of agency for purposes of [FOIA]....The term “establishment in the Executive Office of the President,” as used in the amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress through statute or by Executive order.
Additionally, the legislative history indicates that in focusing on “functional entities” within the Executive Office of the President, Congress intended to exclude from the FOIA the President‘s own records. An exchange during the floor debate on H.R. 12471 between Representative Moorhead, chair of the Foreign Operations and Government Information Subcommittee of the House Committee on Government Operations, and Representative Erlenborn, the ranking minority member of that committee, illustrates this:
Rep. Erlenborn: The question has been asked by Members on this side of the aisle as to the meaning of two definitions of agencies to include the Executive Office of the President.
I want to ask the gentleman if it is not correct, as it states in the report of the committee, that the term “establishment in the Executive Office of the President” as it is contained in this bill means functional entities, such as the Office of Telecommunications Policy, the Office of Manager of [sic] the Budget, the Council of Economic Advisers and so forth; that it does not mean the public has a right to run through the private papers of the President himself?
Rep. Moorhead: No, definitely not. I think the report is crystal clear on that. I thank the gentleman for bringing it up. 120 CONG. REC. 6806 (1974), reprinted in FOIA SOURCE BOOK at 241 (emphasis added).
From the foregoing, we can surmise congressional intent on the definition of an agency to the following extent: It includes establishments within the Executive Office of the President, excepting only the President‘s “immediate personal staff” or units whose “sole function” is to advise and assist the President.2 It encompasses entities created by executive orders, with no requirement that the entity receive direct congressional approval or appropriations. And it shields the President‘s own records.
B. Precedent
In the oft-cited case of Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), this court interpreted the APA and the FOIA to confer agency status “on any administrative unit with substantial independent authority in the exercise of specific functions.” Id. at 1073 (emphasis added). We determined that the Office of Science and Technology (“OST“) satisfied this test “[b]y virtue of its independent function of evaluating federal programs....” Id. at 1075.
This court has applied the Soucie “sole function” test three times to entities within the Executive Office of the President; two of the three entities were found to be
In 1980, this court applied the Soucie test to determine that the Council on Environmental Quality (“CEQ“), a unit within the Executive Office of the President, was an “agency” for purposes of the Government in the Sunshine Act,
The only entity within the Executive Office of the President that this court has found not to be an agency under the “sole function” test is the President‘s Council of Economic Advisors (“CEA“). Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985). The CEA was created by statute, housed in the Executive Office of the President, and authorized to, among other things, advise and assist the President in formulating his economic policies; gather information concerning economic developments and trends; and appraise federal programs and activities in light of
This court most recently applied the Soucie test not to an entity within the Executive Office of the President, but to the Defense Nuclear Facilities Safety Board, an “independent establishment in the executive branch.”
These cases teach us that whether an establishment is an “agency” for FOIA purposes hinges primarily on its functions. See, e.g., Rushforth, 762 F.2d at 1043 n. 7 (“it is, at bottom, its function that determines an entity‘s status for FOIA purposes“); see also Ryan v. Department of Justice, 617 F.2d 781, 788 (D.C.Cir.1980) (agency status depends on “general nature and functions” of a particular unit). Specifically, agency status does not depend on where within the Executive Office of the President (but outside the Office of the President, see infra 1309-10, 1311 n. 23) the establishment is located, see Rushforth, 762 F.2d at 1041 (while the CEA and the OST were “located, hierarchically, in the same position ..., there [was] no indication that [their] functional roles ... were the same; and critically, it was the functional role of the agency on which Soucie turned“) (emphasis added), nor on congressionally granted authority, see id. (CEA and CEQ had virtually identical authorizing statutes). Thus, determining whether the Task Force is an agency requires a careful examination of both its authorized and actual functions.
II. APPLICATION OF THE LAW TO THE TASK FORCE
Turning now to the Task Force, it is obvious that both its structure and its authorized and actual functions satisfy all statutory and case law requirements of an agency under the FOIA.
A. The Task Force as an Establishment
First, the Task Force was an “establishment” within the Executive Office of the President. The legislative history of the FOIA‘s expanded definition of “agency” makes clear that entities created by executive order are sufficiently “established” to fall within its ambit. H.R.REP. NO. 876, 93d Cong., 2d Sess. 8 (1974),
No less novel or puzzling is the majority‘s requirement that a FOIA agency have a “self-contained structure.” Maj. op. at 1293. Does this suggest that no interagency task force, even if created by statute, heavily staffed, and armed with significant independent authority, could ever be a FOIA agency? Or is it intended to exclude any entity that relies on another body for staff or other support services? Whatever the majority intends, this requirement appears incompatible both with the legislative intent to expand the definition of agency and with this court‘s heretofore largely functional inquiry under Soucie.
Perhaps most curious is the majority‘s analogy to the structure of the White House Office, or the President‘s “immediate personal staff.” The majority first observes that the President‘s “immediate personal staff,” which has been exempt from FOIA, lacks a “definite structure.” (I‘ll assume for purposes of argument that this is true.) It then suggests that, because the White
The majority also expresses its “doubt that any individual or group, within the Office of the President, without a separate staff can be regarded as an ‘establishment’ with independent authority.” Maj. op. at 1296. This new “requirement” of the majority that an agency have a separate staff is at odds with our precedent focusing on how an entity functions, not where it gets the resources to perform those functions. See Rushforth, 762 F.2d at 1041 (“critically, it was the functional role of the agency on which Soucie turned“); id. at 1043 n. 7 (Senate confirmation of CEA members not given great weight, as “the nature of the appointment” did not “speak[] to the function of the CEA“). Nor does this staff “requirement” appear anywhere in the FOIA‘s language or legislative history. Indeed, when Congress indicated that an entity created by an executive order could be a FOIA agency, it had to have contemplated that the President might exercise his broad powers to structure the Executive Office of the President to staff the new entity as he saw fit, whether by transferring staff to it or by designating personnel of other Executive Offices to provide needed support. It
Even in case law under the APA, whose definition of “agency” is less expansive than the FOIA‘s, there is no such “separate staff” requirement. Instead, the APA inquiry into agency status is much like the FOIA inquiry: focused on the functions of the entity, and flexible enough to encompass the “myriad organizational arrangements for getting the business of government done.” Washington Research Proj., Inc. v. HEW, 504 F.2d 238, 246 (D.C.Cir. 1974) (citations omitted), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). See also Lee Constr. Co. v. Fed. Reserve Bank of Richmond, 558 F.Supp. 165, 173 (D.Md.1982) (“‘The authority to act with the sanction of government behind it determines whether or not a governmental agency exists.‘“) (quoting Lassiter v. Guy F. Atkinson Co., 176 F.2d 984, 991 (9th Cir.1949)).
Staff capabilities may, of course, be relevant indicia of an entity‘s ability to take substantial independent action, see Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 482 F.2d 710, 715 (D.C.Cir. 1973), rev‘d on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), but ready access to staff support or, as in the case of the Task Force, direct delegation of authority effectively to direct OMB staff is the functional equivalent of a separate staff, as this case illustrates. In any event, it is clear, the majority‘s claims aside, that the Task Force was not “virtually powerless” without a separate staff. Maj. op. at 1296. Through its authority to direct the OMB Director and through the service of the OIRA Administrator as Executive Director of the Task Force (reinforced by the political suasion of its high-powered membership), the Task Force had the staff of a powerful and effective agency at its disposal.11
B. The Task Force‘s Functions
Turning to the second part of our inquiry, the Task Force clearly had functions beyond “advising and assisting the President,” as this term has been construed in our case law. As the majority acknowledges, Executive Order No. 12,291 “is the most important indication of the Task Force‘s role....” Maj. op. at 1294. This Executive Order gave the Task Force “substantial independent authority,” Soucie, 448 F.2d at 1073, charging it with the “direction” of a far-reaching regulatory reform program. The Task Force‘s directions were to be carried out by the Director of the OMB. Exec. Order No. 12,291 §§ 3(b), 3(e)(1), 3(i), 5(b), 6(a), 6(b), 7(c), 7(g) and 8(b). The Task Force was to “direct” the OMB Director in performing the following functions: reviewing preliminary and final Regulatory Impact Analyses (“RIAs“), notices of proposed rulemaking, or final rules based on the requirements of the order, § 3(e)(1); monitoring agency compliance with the order, § 6(a)(8); designating a proposed or currently effective rule as a “major” rule subject to additional review and reporting requirements, §§ 3(b), 6(a), 7(c)(2); requiring reconsideration of major rules, § 7(c)(1); identifying duplicative, overlapping and conflicting rules and requiring interagency consultation to eliminate such duplication, overlap or conflict, § 6(a)(5); preparing and promulgating uniform standards for the identification of major rules and the development of RIAs, § 6(a)(2); establishing schedules for re
Additional evidence in the record reveals that the President intended, and the Task Force provided, an active and independent force for regulatory reform. The President instructed the Chair of the Task Force to “take clear, constructive, and decisive action to restrain Federal regulation and to improve the regulatory process.” Memorandum for the Heads of Executive Departments and Agencies, Office of the Vice President, Mar. 25, 1981; Press Release, Office of the Vice President‘s Press Secretary, Mar. 25, 1981 (Task Force “was instructed by the President to take action, not write reports“). By the Administration‘s own accounts, the Task Force exercised its powers to the fullest, undertaking the final review of regulations of “truly major consequence,” Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the White House Press Secretary, Feb. 18, 1981; “direct[ing]” federal agencies to propose new rules, Press Release, Office of the Press Secretary to the Vice President, Mar. 10, 1987; Press Release, Office of the Press Secretary to the Vice President, Jan. 29, 1988; “recom-mend[ing]” that federal agencies propose certain rules, Press Release, Office of the Vice President, July 14, 1987; “conven[ing]
The Task Force was directly involved not only with other executive agencies but with Congress and with the public. It “work[ed] actively with those in the Congress to achieve legislative change in the regulatory area,” Press Release, Office of the Vice President‘s Press Secretary, June 13, 1981. It also “formally request[ed]” private sector comments to itself and to the agencies, Press Release, Office of the Vice President, March 25, 1981, and its counsel advised business leaders: “If you go to the agency first, don‘t be too pessimistic if they can‘t solve the problem there. If they don‘t, that is what the Task Force is for.” C. Boyden Gray, Remarks at Transcription of Hall of Flags Regulatory Reform Briefing (Apr. 10, 1981), reprinted in Role of OMB in Regulation: Hearings of the Oversight and Investigations Subcomm. of the House Comm. on Energy & Commerce, 97th Cong., 1st Sess. 92 (1981), cited in Erik D. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291,
These functions equal or surpass those of every entity determined to date to be a FOIA agency and satisfy every judicial articulation of the Soucie “sole function”
Like the Defense Nuclear Facilities Board, see Energy Research Foundation, 917 F.2d at 585, the Task Force imposed reporting requirements on federal agencies. Under Executive Order No. 12,291 the Task Force could direct the head of the OMB to require agencies to provide additional information in connection with their regulations or regulatory agendas; determine the standards for and the form in which agencies filed their RIAs and agendas; and, by designating rules as major rules, sharply increase the reporting requirements incident to the rules. The Task Force also satisfies Rushforth‘s requirement of ability to take “direct action.” Rushforth, 762 F.2d at 1041. The President instructed the Task Force to “take action,” Press Release, Office of the Vice President, Mar. 25, 1981, and the Task Force claimed to have followed those instructions. It announced that, after formally requesting private sector comments about governmental regulation directed to itself and to the agencies, it made “decisions” and took “actions” to address these submissions. For example, the Task Force announced the EPA‘s “bubble” rule as one of the “actions taken” by the Task Force.
Finally, the Task Force exercised two of the three functions—coordinating regulatory programs, issuing guidelines and promulgating regulations—by which this court distinguished the CEA, which was not an agency, from the CEQ, which was. Rushforth, 762 F.2d at 1041. While the CEQ coordinated only environmental regulatory policy, the Task Force was “in charge of the President‘s overall regulatory reform program.” The Task Force issued guidelines for all regulatory agencies on the preparation of the mandatory RIAs. And while it may not have published regulations in the Federal Register, its guidelines were, nonetheless, binding on federal regulatory agencies. See Exec. Order No. 12,498, § 1(d), 3 C.F.R. § 323 (1986), reprinted in
In assessing the Task Force‘s functions, the majority makes three fundamental errors. The first goes to the scope of the delegation of authority to the Task Force. The majority asserts that Executive Order No. 12,291 did not authorize “the Task Force, qua Task Force, to give directions to the executive branch.” Maj. op. at 1293. To the contrary, the Executive Order expressly authorized the Task Force to give effective direction to the OMB,13 and through the OMB, to other executive agencies. In so doing, the Task Force directed what is “often called the most powerful agency in the United States Government.” J. PARRIS, CONGRESSIONAL RESEARCH SERVICE, THE OFFICE OF MANAGEMENT AND BUDGET: BACKGROUND, RESPONSIBILITIES, RECENT ISSUES i (1978), cited in Olson, supra, at 5. The Task Force‘s authority to direct other executive agencies was only fortified by Executive Order No. 12,498, which made the Task Force‘s regulatory policy guidelines binding on the agencies. See Exec. Order No. 12,498, § 1(d), reprinted at
The majority‘s description of the scope of the President‘s delegation to the Task Force comes not from the terms of the
For example, the majority cavalierly dismisses, Maj. op. at 1294, the President‘s explicit delegation to the Task Force of the authority either to resolve disputes arising under the order or to determine when a dispute required the President‘s personal attention. The President‘s delegation to the Task Force of the authority to keep an issue from even reaching his desk is a clear indication of the Task Force‘s significant authority to deal independently with regulatory issues. The majority‘s statement that it “seems implicit” that the Task Force would not on its own resolve disputes without presenting them to the President is directly contradicted by the express language of the Executive Order, and by the Vice President‘s own assertion that the Task Force presented disputes to the President only “if necessary,” see Press Release, Office of the Vice President, Feb. 17, 1981 (the “most sensitive questions” arising under Executive Order No. 12,291 “will be brought in timely fashion to the Presidential Task Force (and, if necessary to the President himself)“; “regulations of truly major consequence are brought before the Presidential Task Force (and the President, if necessary) for final review“).17 The ma
The majority‘s resort to a thirty-year-old treatise about the presidency, Maj. op. at 1296, “maxims” about staff capture, Maj. op. at 1296, and the supposed beliefs of “veterans of bureaucratic wars,” Maj. op. at 1296, to determine how the Task Force actually functioned, and its dismissal of the Task Force‘s Executive Order authority as “beside the point,” Maj. op. at 1294, is troubling, to say the least.18 It discredits the two best and most reliable indications of the Task Force‘s role: the authority granted by the express terms of the Execu
The majority‘s second fundamental error is in creating and applying an “operational proximity” test that represents a strained reading of the legislative history and runs directly counter to our precedent. The majority asserts—without citing any support from the legislative history or case law—that operational proximity in the sense of “continuing interaction” is, in part, what Congress contemplated when it exempted the President‘s “immediate personal staff” from the definition of an “agency.” Maj. op. at 1293. Even assuming that “operational proximity” was a consideration in exempting the President‘s “immediate personal staff,”19 it should be confined to this exemption. The majority‘s error is in confusing the “immediate personal staff” exemption, which is not at issue here, with the “sole function” exemption, which is a separate inquiry.
This is not only an illogical reading of the two tests established in the legislative his
Furthermore, by the majority‘s broad definition of “proximity,” virtually every person or entity within the Executive Office of the President would be excluded from the FOIA, contrary to the statute‘s express inclusion of the Executive Office of the President in its definition of agency. For example, under the majority‘s “operational proximity” test, the Director of the OMB, determined by the majority to be the cabinet officer “functionally ... closest to the President,” Maj. op. at 1294, would, on the basis of that proximity, be a shoo-in for exclusion from the FOIA, but no one disputes that the OMB, along with its director, is subject to the FOIA.
The OMB‘s recognized operational proximity to the President, see Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking,
Finally, on the question of proximity to the President, it is important to note that the plaintiff does not seek records of the President, of the Vice President, nor yet of the Office of the Vice President.21 Instead, she seeks the records of a separate functional entity operating partly out of the Office of the Vice President and partly out of the Office of Management and Budget.
The majority‘s third fundamental error in assessing the Task Force‘s agency status is
Although the majority professes to subscribe to the view that “form follows func
The majority‘s focus on the composition of the Task Force is particularly puzzling in light of the majority‘s own identification of the three factors relevant under Soucie to determine whether entities like the Task Force are agencies: operational proximity, a self-contained structure (including an independent staff), and the scope and nature of the delegation from the President. Maj. op. at 1293, 1296. Although I disagree with the majority about the first two—which are entirely creatures of the majority‘s own making—the scope and nature of the President‘s delegation of authority is certainly the primary relevant inquiry. The majority, however, departs from its own inquiry into what the President delegated, that is, the degree of independent authority he gave the entity, and asks instead to whom he delegated this authority, that is, what other roles the members of the entity happen to play in the Administration. This inquiry is clearly inconsistent with the functional inquiry this court has applied in FOIA cases for twenty years.
III. CONCLUSION
This case does not question the President‘s authority to supervise the oversight
The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House staff advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered. The executive power under the Constitution, after all, is not shared—it rests exclusively with the President.
Sierra Club v. Costle, 657 F.2d 298, 405 (D.C.Cir.1981); see also In re Permanent Surface Mining Reg. Litigation, 13 ENV‘T REP. CAS. (BNA) 1586, 1597 (D.D.C.1979) (consultation between the President‘s advisers and other entities in the executive branch permissible). To exercise that power, the President and his close advisers must be able to communicate freely, and, in some cases, without public scrutiny. See Sierra Club, 657 F.2d at 406 (“Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive.“). This case, however, unlike Sierra Club, does not involve face-to-face strategy sessions be
Nor does this case question the President‘s authority to establish any kind of high-level structure—or no structure—within the Executive Office of the President to direct the regulatory reform effort. The President can choose to accomplish his regulatory objectives through his own actions, through an establishment created pursuant to his executive order authority, through an entity created through a congressionally-approved reorganization plan, or simply through rump sessions with his cabinet members. But the President must live with the consequences of his choice, one of which may be the requirements of the FOIA. We recognized this indisputable fact in Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C.Cir.1980): “In many different areas the President has a choice between using his staff to perform a func
Instead of addressing the Task Force‘s authority to direct the President‘s regulatory reform efforts, this case questions its authority to shroud its actions in absolute secrecy.26 Similarly tasked entities within
Given the Realpolitik of the workings of the Executive Office of the President, it is candidly hard to see how disclosure of the same genre of communications by and to the Task Force, which worked hand-in-glove with the OMB, sharing its staff, records, and responsibilities under Executive Order No. 12,291, would pose any significant potential for disruption of the President‘s valid oversight functions. In fact, it would seem that the objectives of the OIRA disclosure procedures—and FOIA itself—would be thwarted if comments sent to the OMB or the OIRA are subject to public access, while similar comments on the very same matter directed to the Task Force are never revealed.27
The majority‘s approach thus creates two tracks: The Task Force, which is charged with the “overall direction” of the President‘s regulatory reform program, is shielded from disclosure laws, while the
Subjecting the Task Force, as well as the OMB, to the FOIA would not compromise either the President‘s legitimate oversight authority or his undisputed need for confidential policy deliberations, as the FOIA‘s exemption 5 expressly provides for a deliberative process privilege. In fact, the Administration invoked this privilege to shield certain documents requested by the plaintiff in this case. To the extent that the President or his close advisers need to protect sensitive policy discussions, they can more appropriately do so through the FOIA exemption, which protects particular records from disclosure, rather than through the FOIA agency determination, which bars all records from disclosure. See Pacific Legal Foundation, 636 F.2d at 1265 (where concern was protecting confidential advice to the President, court was unwilling to close all meetings, rather than those meetings in which such confidential advice was to be deliberated).
It is not enough to say, as the majority does, that the Task Force or its Chair is a “hair‘s breadth” or a “heartbeat” away from the President. This court has previously declined to exempt the President‘s closest advisers, his Cabinet members, from the FOIA: “Many Cabinet officers, like the Attorney General or the Office of
Instead, the proper inquiry, as the district court noted, must center on the “functions and responsibilities of the Task Force, not the title of its Chairman or his other office,” and on the evidence that the Task Force was not formed simply to advise and assist the President, but rather had “substantial, independent, directorial authority.” The majority recognizes, as it must, that the district court “applied the correct governing law....” Maj. op. at 1291. As the extensive prior discussion demonstrates, and as the district court found as well, such an inquiry leads ineluctably to a recognition that the Task Force is an “agency” under the FOIA test. Accordingly, I would affirm the district court‘s judgment, and dissent from my colleagues’ contrary conclusion.