FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK J. MANSHARDT, 

Plaintiff-Appellant, No. 03-55683

v. D.C. No.

FEDERAL JUDICIAL QUALIFICATIONS  CV-02-04484-FMC

COMMITTEE; GERALD PARSKY;

OPINION DIANNE FEINSTEIN; BARBARA BOXER,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Florence Marie Cooper, District Judge, Presiding

Argued and Submitted

February 11, 2005—Pasadena, California

Filed May 12, 2005

Before: John T. Noonan, David R. Thompson, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Thompson

5199
COUNSEL

Patrick J. Manshardt, Los Angeles, California, plaintiffappellant pro se. 

Joseph S. Klapach, Los Angeles, California, and Grant R.

Vinik, Washington, D.C., for the defendants-appellees. 

OPINION

THOMPSON, Senior Circuit Judge: 

Patrick J. Manshardt appeals the dismissal of his complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a justiciable claim. In his complaint,

Manshardt alleged that the Federal Judicial Qualifications

Committee, a committee formed by private citizen Gerald

Parsky and United States Senators Diane Feinstein and Barbara Boxer to recommend nominees to the President to fill

federal district court and United States Attorney vacancies in

California, had been meeting in private and without a charter

in violation of the Federal Advisory Committee Act (FACA),

5 U.S.C. App. 2 §§ 1-14 (2004). 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

conclude that the Committee is not an advisory committee

falling within the scope of FACA, and therefore we affirm the

district court’s dismissal of Manshardt’s complaint. 

MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM. 5201
I

FACTS AND PROCEEDINGS

The Federal Judicial Qualifications Committee (“the Committee”) was formed in March 2001 by Senators Diane Feinstein and Barbara Boxer, both members of the Democratic

Party, in conjunction with Gerald Parsky, a private businessman and member of the Republican Party. The Committee,

which is responsible for recommending to the President nominations for federal district court judgeships and for United

States Attorney positions in California,1 was established pursuant to a voluntary agreement between Parsky and Senators

Feinstein and Boxer to develop a list of candidates for

appointment likely to meet with the approval of both the President and, when applicable, the Senate. 

The Committee is comprised of four six-member committees, one for each judicial district in California. Each subcommittee includes one member selected by Senator Feinstein,

one member selected by Senator Boxer, one member jointly

selected by both Senators, and three members selected by Parsky. Parsky chairs the full Committee and serves as the

appointed chair of each subcommittee. Each subcommittee is

charged with naming three to five possible nominees for district court and United States Attorney vacancies within the

relevant judicial district. Following review of each candidate

under consideration, the subcommittees select by majority

1The parties dispute the precise role played by the Committee in the

screening and recommendation of candidates for the office of United

States Attorney. Manshardt alleges general involvement by the Committee

in this process, while the Senators contend the screening of candidates for

United States Attorney positions is conducted by Parsky and his twelve

subcommittee appointees, without any involvement by the Senators’ subcommittee appointees. Because this case comes to us on review of the district court’s judgment of dismissal, we take Manshardt’s allegations as

true. See, e.g., Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d

661, 663 (9th Cir. 2000). 

5202 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.
vote potential nominees from among those candidates. Parsky

reviews the subcommittees’ recommendations and forwards

them to the President to be considered for nomination. 

Manshardt, an attorney who practices in various federal

courts within California and a recent applicant for the post of

United States Attorney for the Central District of California,

challenged the validity of the Committee and its procedures

by filing the complaint underlying the instant appeal. In his

complaint, Manshardt alleged the Committee’s activities violated FACA.2

 Specifically, Manshardt alleged the Committee

had failed to file a charter with the Administrator of General

Services as required by section 9 of FACA, 5 U.S.C. App. 2

§ 9(c), and had failed to hold meetings open to the public after

notice published in the Federal Register as required by section

10 of the Act, id. at App. 2. § 10(a). 

The district court dismissed the complaint in its entirety on

the ground that it presented a nonjusticiable political question.

The district court held that judicial review of the propriety of

the Committee’s role in the nomination of federal district

court judges and United States Attorneys would compel the

court to “interject itself into the nomination process,” an act

that would violate constitutional separation of powers principles. The district court declined to address the various alternative bases for dismissal advanced by the defendants, including

their contention that the Committee is not an “advisory committee” as defined by FACA. 

2Manshardt’s complaint also alleged violations of Article II, § 2, clause

2 of the Constitution (Presidential Appointment of Federal Officers), and

the Government in the Sunshine Act, 5 U.S.C. § 552b (2004). Manshardt

has abandoned these claims. 

MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM. 5203
II

STANDARD OF REVIEW

We review de novo the district court’s order dismissing the

complaint under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, taking all well-pleaded allegations of material fact

as true and construing them in the light most favorable to the

plaintiff. Gomper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir.

2002). Dismissal is proper under Rule 12(b)(6) if it appears

beyond doubt that the plaintiff can prove no set of facts to

support his claims. Adams v. Johnson, 355 F.3d 1179, 1183

(9th Cir. 2004). We may affirm a Rule 12(b)(6) dismissal on

any basis fairly supported by the record. Id.

III

DISCUSSION

Parsky, joined by Senators Feinstein and Boxer, contends

the district court properly dismissed Manshardt’s FACA

claims because the Committee is not an “advisory committee”

falling within FACA’s scope.3 We agree. 

3Parsky urges, in the alternative, that we affirm the district court’s dismissal of Manshardt’s FACA claims because FACA does not contain an

express provision permitting a private cause of action to enforce rights

created by the Act. Whether FACA is susceptible of private enforcement,

either by its own terms or through claims based on other statutory authority, remains an open question, see Colo. Envtl. Coalition v. Wenker, 353

F.3d 1221, 1227 (10th Cir. 2004); Judicial Watch, Inc. v. Nat’l Energy

Policy Dev. Group, 219 F. Supp. 2d 20, 33-34 (D.D.C. 2002), rev’d on

other grounds, Cheney v. United States Dist. Court, 334 F.3d 1096 (D.C.

Cir. 2003), vacated on other grounds by Cheney v. United States Dist.

Court, 124 S. Ct. 2576 (2004), which we find unnecessary to consider in

this case. See, e.g., Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979) (“The

question whether a cause of action exists is not a question of jurisdiction,

and therefore may be assumed without being decided.”); Price v. City of

Stockton, 390 F.3d 1105, 1108 (9th Cir. 2004) (same); Lapidus v. Hecht,

232 F.3d 679, 681 n.4 (9th Cir. 2000) (same); see also Public Citizen v.

5204 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.
[1] FACA applies exclusively to “advisory committees,” 5

U.S.C. App. 2 § 4, which are defined as: 

any committee board, commission, council, conference panel, task force, or other similar group, or any

subcommittee or other subgroup thereof . . . which

is— 

(A) established by statute or reorganization

plan, or 

(B) established or utilized by the President,

or 

(C) established or utilized by one or more

agencies, 

in the interest of obtaining advice or recommendations for the President or one or more agencies or

officers of the Federal Government, except that such

term excludes (i) any committee that is composed

wholly of full-time, or permanent part-time, officers

or employees of the Federal Government, and (ii)

any committee that is created by the National Academy of Sciences or the National Academy of Public

Administration. 

5 U.S.C. App. 2 § 3(2). 

[2] As is plain from this language, a threshold requirement

for an entity to be an “advisory committee”—and therefore

subject to the requirements of FACA—is that it either be

U.S. Dep’t of Justice, 491 U.S. 440 (1989) (apparently assuming, without

expressly deciding, the existence of a private right of action to enforce

FACA under the extant doctrinal framework, subsequently clarified by the

Court’s opinion in Alexander v. Sandoval, 532 U.S. 275, 286-87, (2001)).

MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM. 5205
established by statute or reorganization plan, or established or

utilized by the President, or by one or more agencies. That the

Committee was not established—or even authorized—by statute or reorganization plan, by the President, or by an agency

is manifest from the allegations in the complaint. Whether the

Committee was “utilized” by the President is only somewhat

less evident, yet ultimately resolved by reference to the

Supreme Court’s decision in Public Citizen v. United States

Department of Justice, 491 U.S. 440 (1989). 

[3] In Public Citizen, the Court was called upon to decide

FACA’s application to the American Bar Association’s

Standing Committee on the Federal Judiciary, a committee

that furnished “advice or recommendations” to the President

concerning the qualifications of potential nominees for federal

judgeships. Id. at 452. Because it was clear that the ABA

Committee had not been established by statute, by the President, or by the Justice Department, FACA’s applicability

depended upon “whether [the committee was] ‘utilized’ by

the President or the Justice Department as Congress intended

that term to be understood.” Id. The Court concluded that

although the President utilized the ABA Committee in one

common sense of the term, the President’s use of the ABA

Committee was not encompassed by FACA. Id. at 467. Such

an unqualified reading of the term “utilize” as sought by the

plaintiff “would extend FACA’s requirements to any group of

two or more persons, or at least any formal organization, from

which the President or an Executive Agency seeks advice.”

Id. at 452. Particularly in the context of selecting political and

judicial nominees, it would be absurd, according to the Court,

to think that Congress intended FACA to apply so broadly. Id.

at 453. Although FACA’s reach “is extensive,” the Court

could not “believe that it was intended to cover every formal

and informal consultation between the President or an Executive agency and a group rendering advice.” Id.

[4] In the present case, the Committee, which operates at

the behest of Parsky and Senators Boxer and Feinstein to

5206 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.
enable persons to offer a local perspective on potential nominees, is no more “utilized” by the President in making nominations than was the ABA Committee at issue in Public

Citizen. Indeed, in comparison with the ABA Committee in

Public Citizen, the Committee in this case is a less likely candidate for advisory committee status. Although the Committee

was formed, at least in part, by public officials, the advice and

recommendations it provided were, according to the complaint, not solicited by the President. In contrast, the views of

the ABA Committee had been affirmatively solicited by the

Justice Department. See id. at 444. 

[5] Moreover, even if we were to conclude, as Manshardt

urges, that the quasi-public character of the Committee qualifies as an important distinction undermining the apparent

mandate of the Court’s analysis in Public Citizen, we would

nevertheless decline to apply FACA in light of the substantial

constitutional difficulties its application would present. See,

e.g., Crowell v. Benson, 285 U.S. 22, 62 (1932). On this point,

the Public Citizen opinion is unambiguous—indeed unanimous: the application of FACA to a committee charged with

suggesting or vetting federal judicial nominees, if not plainly

unconstitutional, presents formidable constitutional difficulties. Public Citizen, 491 U.S. at 466-67; see also id. at 482

(Kennedy, J., concurring in the judgment). The power to nominate federal judges, as well as United States Attorneys, is textually committed by Article II, section 2, clause 2 of the

Constitution to the President. In light of this constitutional

provision, which applies with equal, if not more, force to the

Committee in the present case than it did to the committee in

Public Citizen, we apply the same “sound sense” that counseled caution in Public Citizen and decline to read FACA as

broadly as Manshardt requests. See Public Citizen, 491 U.S.

at 467. 

The district court’s dismissal of Manshardt’s complaint is

AFFIRMED.

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