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 March 17, 2005

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

Michael Daly Hawkins, Circuit Judges

Opinion by Judge Thompson

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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.

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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. §§ 1 through 14. 

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

conclude that a private right of action is not available under

FACA, and therefore we affirm the district court’s dismissal

of Manshardt’s complaint. 

I. FACTS AND PROCEEDINGS

The Federal Judicial Qualifications Committee was formed

in March 2001 by Democratic Party Senators Diane Feinstein

and Barbara Boxer, 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 judges and

United States Attorneys in California,1 was established pursu1The parties dispute the precise role played by the Committee in the

screening and recommendation of candidates for 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 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).

MANSHARDT v. FEDERAL JUDICIAL QUALIFICATIONS 3335
ant 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 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 potential nominees among those candidates by majority vote. 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 violate FACA, 5 U.S.C. App. §§ 1 through 14.2

 Specifically,

Manshardt alleged the Committee had failed to file a charter

with the Administrator of General Services as required by

section 9 of FACA, and had failed to hold meetings open to

the public after notice published in the Federal Register as

required by section 10. 

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. Manshardt has

abandoned these claims. 

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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

the absence of a private right of action to enforce FACA. 

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 FACA does not create a private right of

action. Manshardt argues that although FACA does not contain an express provision for private rights of action, a private

right may be implied. In support of this contention, Manshardt

notes the Supreme Court has previously assumed the existence of a private right of action to enforce FACA. See Public

Citizen v. United States, 491 U.S. 440 (1989); see also Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F.

Supp. 2d 20, 33-34 (D.D.C. 2002), (collecting cases in which

courts have assumed the existence of a private right of action

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under FACA without examining whether Congress intended

to create one), 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).3 Indeed, we have previously assumed the

existence of a private right of action to enforce FACA. See

Aluminum Co. of Am. (ALCOA) v. Nat’l Marine Fisheries

Serv., 92 F.3d 902 (9th Cir. 1996). In light of more recent precedent, which clarifies that private rights of action are not

lightly to be implied, we decline to rely on the interstices of

Public Citizen and instead independently evaluate the existence of a private right of action under FACA. 

[1] In Alexander v. Sandoval, 532 U.S. 275, 286-87,

(2001), the Supreme Court made clear that in the absence of

clearly expressed Congressional intent to create a private right

of action, no such action may be implied. It is irrelevant that

a private right of action may be “ ‘necessary to make effective

the congressional purpose,’ ” or may be desirable as a matter

of public policy; private rights of action to enforce federal

law, like substantive federal law itself, must be created by

Congress. Id. at 287 (citing J.I. Case Co. v. Borak, 377 U.S.

426, 433 (1964)). 

[2] The judicial inquiry into congressional intent, the Court

made clear in Sandoval, is two-pronged: a private cause of

action arises only when a statute “displays an intent to create

not just a private right but also a private remedy.” Id. at 286.4

3The district court in Judicial Watch, 219 F. Supp. 2d at 34-42, recognized that FACA’s requirements might be capable of private enforcement

through claims based on the Administrative Procedure Act, 5 U.S.C.

§ 706, and under the federal mandamus statute, 28 U.S.C. § 1361. Because

Manshardt’s claims are based exclusively on FACA, we need not consider

whether judicial review of an advisory committee’s compliance with

FACA may be prompted by other statutory provisions. 

4The Supreme Court has not abandoned, nor have we, consideration of

the factors expressed in Cort v. Ash, 422 U.S. 66, 78 (1975), for evaluating

whether a statute contains an implied private right of action. See Walls v.

Wells Fargo Bank, 276 F.3d 502, 508 (9th Cir. 2002). We have, however,

recognized that “the critical inquiry” is Congressional intent, and so direct

our inquiry. See id. 

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Stated differently, even if a statute contains the requisite

“rights-creating language” sufficient to confer “individual

entitlement” to its benefits, see Gonzaga Univ. v. Doe, 536

U.S. 273, 287 (2002), a private right of action will not be

implied without an indication of congressional intent that such

a right be privately enforceable. Id. at 284; see also Price v.

City of Stockton, 390 F.3d 1105, 1109 n.3 (9th Cir. 2004) (distinguishing an implied cause of action from rights enforceable

under 42 U.S.C. § 1983). 

[3] It may well be that some of the FACA requirements

Manshardt alleges were violated were intended by Congress

to create private rights. Courts have extended recognition to

FACA’s rights-creating language in the past. See Judicial

Watch, 219 F. Supp. 2d at 33 (citing Cummock v. Gore, 180

F.3d 282 (D.C. Cir. 1999)); Byrd v. EPA, 174 F.3d 239 (D.C.

Cir. 1999) (recognizing that FACA grants a private right of

access by the public to specified advisory committee materials). However, Sandoval requires more than mere congressional intent to create a private right; a private right of

enforcement exists only if the statute also reveals congressional intent to create a private remedy. Our examination of the

text and structure of FACA reveals nothing to indicate Congress intended a private remedy. FACA contains no express

private right of action, nor does it include any provision for

judicial review. Indeed, FACA is entirely silent as to the

appropriate remedy for violation of its requirements. 

[4] FACA instead appears to contemplate that monitoring

and oversight of compliance with its requirements will be

achieved, not through private enforcement, but rather by governmental regulation. The Act requires Congress to conduct a

continuing review of the activities and responsibilities of

existing advisory committees, 5 U.S.C. App. § 5(a), and to

this end requires the President to submit to Congress an

annual report on all advisory committees. Id. § 6(c). FACA

obligates the Administrator of General Services to conduct a

comprehensive annual review of the continuing usefulness of

MANSHARDT v. FEDERAL JUDICIAL QUALIFICATIONS 3339
existing advisory committees, and it requires both the GSA

and the controlling federal agency to prescribe guidelines and

management controls for advisory committees. Id. § 7(a)-(c).

Finally, FACA grants authority to the Comptroller General to

audit the financial records of any advisory committee. Id.

§ 12(a). While these provisions do not specify a comprehensive scheme of public enforcement of the type provided in

Title VI, we are nonetheless mindful of the Court’s admonition in Sandoval that “[t]he express provision of one method

of enforcing a substantive rule suggests that Congress

intended to preclude others.” Sandoval, 532 U.S. at 290.

FACA’s express provisions for governmental oversight buttress our conclusion that a private right of action may not be

implied. See id. at 290-91. 

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

AFFIRMED. 

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