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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2003 Decided January 2, 2004

No. 02-5387

NATURAL RESOURCES DEFENSE COUNCIL AND

TRI–VALLEY CARES,

APPELLEES

v.

DEPARTMENT OF ENERGY AND

SPENCER ABRAHAM, SECRETARY OF ENERGY,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(00cv02431)

Alisa B. Klein, Attorney, U.S. Department of Justice,

argued the cause for appellants. With her on the briefs were

Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern,

Attorney.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Howard M. Crystal argued the cause for appellees. With

him on the brief was Eric R. Glitzenstein.

Before: RANDOLPH and ROBERTS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM: This appeal presented the question whether

the Federal Advisory Committee Act (‘‘FACA’’), 5 U.S.C.

App. 2, applied to a committee the Department of Energy

formed to provide it with advice regarding the National

Ignition Facility at Lawrence Livermore National Laboratory

in California. The committee, which is known as the November 2001 Status Review Committee, consisted of federal employees and employees of contractors who manage and operate Department-owned laboratories. The district court held

that FACA applied to the committee (and to two other

committees not the subject of this appeal) and that the

Department had failed to comply with FACA’s requirements.

Natural Resources Defense Council v. Abraham, 223 F.

Supp. 2d 162, 194 (D.D.C. 2002). The court ordered the

Department to disclose committee documents and to include

in the committee’s reports a statement that although FACA

governed the committee, the Department had not complied

with the statute. Id. at 194–96. The court also declared that

the Department had a policy of establishing committees to

advise it on this project in violation of FACA. Id. at 195.

It is unnecessary to describe the arguments against and in

support of the district court’s judgment, most of which centered on the meaning of our decision in Food Chemical News

v. Young, 900 F.2d 328 (D.C. Cir. 1990). On November 24,

2003, after the case had been argued, the President signed

into law the National Defense Authorization Act for Fiscal

Year 2004. Section 3112, entitled ‘‘Department of Energy

Project Review Groups Not Subject to Federal Advisory

Committee Act By Reason of Inclusion of Employees of

Department of Energy Management and Operating Contractors,’’ provides:
3

An officer or employee of a management and operating contractor of the Department of Energy, when

serving as a member of a group reviewing or advising on matters related to any one or more management and operating contracts of the Department,

shall be treated as an officer or employee of the

Department for purposes of determining whether

the group is an advisory committee within the meaning of section 3 of the Federal Advisory Committee

Act (5 U.S.C. App.).

Because committees consisting entirely of federal employees

are exempt from FACA, see 5 U.S.C. App. 2 § 3, the new

legislation had the effect of exempting Department committees such as the November 2001 committee, as the Natural

Resources Defense Council (‘‘NRDC’’) concedes.

In post-argument submissions, the Department argues that

passage of § 3112 entitles it to prevail on the merits of its

appeal; NRDC urges us to dismiss the Department’s appeal

as moot in light of § 3112. We think this is a largely

meaningless dispute. Both sides agree that the district

court’s order must be set aside to the extent that it (1) finds

the November 2001 committee in violation of FACA; (2)

requires the Department to disclose documents relating to

the November 2001 committee, and to include a disclaimer in

any reports the committee issues in the future; and (3)

declares that the Department has an unlawful policy of

forming committees with contractor employees in violation of

FACA.

We therefore remand the case to the district court for the

purpose of altering its judgment to the extent indicated in the

preceding paragraph. We leave it to the district court to

decide in the first instance whether any further relief is

appropriate.

So ordered.