Sunday, October 11, 2009

D.C. Circuit: Judicial Watch Has Standing to Sue Commerce Over NACC

The D.C. Circuit ruled on Friday that Judicial Watch has standing to sue the U.S. Department of Commerce for declaratory and injunctive relief for alleged violations of the Federal Advisory Committee Act ("FACA") by the North American Competitiveness Council ("NACC").  Judicial Watch at one time sought to participate in NACC meetings (the request was denied) and sought NACC records under FOIA.  This suit, alleging that NACC is a federal "advisory committee," sought access to records under FACA and more generally to bring NACC into compliance with the FACA.

NACC was established by the U.S., Canadian, and Mexican governments to provide policy advice to the three governments.  It consists of private sector business leaders, it has at least one working group comprised exclusively of U.S.-based delegates, and Commerce has met with NACC and this working group "periodically."

Judge Urbina (D.D.C.) last year ruled that Judicial Watch lacked standing and granted Commerce's motion to dismiss.  Urbina wrote that Commerce didn't control NACC; or, in standing parlance: Judicial Watch's injuries weren't traceable to Commerce, and its requested relief wouldn't remedy its alleged injuries.

The D.C. Circuit reversed, holding that Commerce does, indeed, have some obligations to its advisory committees, like NACC, under FACA, and that there was sufficient connection between Commerce and NACC to meet standing requirements:

[If, as the plaintiff alleges, NACC is an "advisory committee" under FACA], Commerce is subject to an array of FACA obligations concerning the Council and its sub-groups that are entirely within its power to discharge.  These include Commerce's duty under 5 U.S.C. App. Sec. 10(b) [that portion fo FACA that sets out advisory committee and agency obligations] to make available for public inspection transcripts or minutes of meetings of the Council or its U.S. sub-groups.  Commerce attended some of these in the past, and could therefore itself generate minutes if the Council refused to cooperate or if extant minutes were incomplete.  Looking to the future, the court could order that Commerce conduct any prospective encounters between itself and the Council--including those alleged to take place "two to three times per year"--in compliance with FACA's requirements.

Opinion at 3-4 (citations omitted).


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