Open meetings provision of law does not allow citizen lawsuits

• Citizens may not sue the government under the Federal Advisory Committee Act to enforce their right to open executive advisory committee meetings, a federal appeals court ruled last week in dismissing a lawsuit.

March 23, 2005 — A committee which recommends federal judicial nominees and other presidential appointees is immune from lawsuits by private citizens seeking to force compliance with the open meetings provisions of the Federal Advisory Committee Act, the U.S. Court of Appeals (9th Cir.) ruled March 17.

In affirming a trial court ruling, the Ninth Circuit dismissed a citizen’s suit, saying Congress never meant to give private citizens the individual right to enforce FACA in court.

Writing for a unanimous court, Judge David R. Thompson conceded that many courts — the U.S. Supreme Court among them — had ruled for individual plaintiffs in similar FACA cases. But he said the federal appellate court could not rule similarly because in 2001 the Supreme Court held in Alexander v. Sandoval that courts cannot assume individuals may sue if Congress has not clearly expressed that such a remedy exists.

At issue in case was whether Patrick J. Manshardt, a California attorney who previously applied to be a federal prosecutor, could attend meetings of the Federal Judicial Qualifications Committee. The group, created in March 2001 to recommend judicial and U.S. attorney appointees to President Bush, consists of people selected by Republican businessman and Bush family confidant Gerald Parsky and California’s two Democratic senators, Barbara Boxer and Dianne Feinstein, among others.

Manshardt said that the novel advisory committee “was created to assure that [the White House] had judicial nominees for district courts in California that would pass Senate scrutiny.” Out of 21 federal district court appointments made since the committee’s creation, Manshardt believed that every single name had come from the committee.

He sued in 2002 arguing that the committee meetings should be open under FACA. He was particularly troubled by the process because he felt that Feinstein and Boxer did not deserve to participate in the selection process for federal district judges when they actively worked to block confirmation of some of the Bush administration’s federal appellate nominees.

The trial court dismissed his case, claiming that it would violate separation of powers to “interject itself into the nomination process.” Manshardt appealed.

The three-judge panel pointed out that although FACA does not allow individuals to sue over openness issues, it explicitly established “monitoring and oversight of compliance with its requirements” by Congress, the General Services Administration, and the comptroller general. Such explicit oversight “suggests that Congress intended to preclude others,” the court said.

The court’s ruling left the public’s right to open meetings under FACA unprotected, Manshardt said. “There was some specious comment that [the public’s right to open meetings] could be enforceable under the Administrative Procedures Act, but the APA applies to regulatory agencies, and I think there is a big difference between a regulatory agency and an advisory committee,” he said.

He has not yet decided whether he will appeal the Ninth Circuit’s ruling.

(Manshardt v. Federal Judicial Qualifications Committee; Media Counsel: Patrick J. Manshardt; Los Angeles, Calif.) — RL

© 2005 The Reporters Committee for Freedom of the Press

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