Lombardo v. Handler

No. 74-431 (D.D.C. July 28, 1975)

ELR Digest

The National Academy of Sciences is not an "agency," nor is its Committee on Motor Vehicle Emissions (CMVE) an "advisory committee," within the meaning of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I (1975), and the latter body is thus not subject to the statute's open meeting requirements. Under FACA, an agency is a part of government which has authority to take final and binding action or which exercises substantial independent governmental authority, see, e.g. Washington Research Project v. Dep t of Health, Education & Welfare, 504 F.2d 238 (D.C. Cir. 1974), and the Academy does not possess either of these characteristics. This is so despite the legal significance given to Academy recommendations by several acts of Congress, including the Clean Air Act, 42 U.S.C. § 1857f-1(c), ELR 41215, and the creation of the Academy's National Research Council by Executive Order. The court rejects plaintiffs' alternative argument that the CMVE is an advisory committee after finding that the Committee was established neither by statute nor by an agency of the federal government, and is not "utilized" by EPA within the meaning of § 3(2) of FACA. An examination of the legislative history shows that Congress did not intend to include within the Act's coverage groups such as the Committee which present advice and recommendation to federal agencies under contract. The court also rules that the Academy fails to qualify as an agency under the definition of that term contained in the Freedom of Information Act Amendments of 1974, ELR 41015. Defendants' cross-motion for summary judgment is granted.

The full text of this opinion is available from ELR (21 pp. $2.65, ELR Order No. C-1007).

Counsel for Plaintiffs
William H. Rodgers
Georgetown University Law Center
600 New Jersey Ave., N.W.
Washington, D.C. 20001

Counsel for Defendants
Calvin H. Cobb
John N. Edsall
Louise A. Matthews
Steptoe & Johnson
1250 Connectiut Ave., N.W.
Washington, D.C. 20036

Sirica, J.

[OPINION OMITTED BY PUBLISHER, IN ORIGINAL SOURCE]