1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC., 

 Plaintiff,

 v. Civil Action No. 20-1132 (JDB)

WILLIAM P. BARR, in his official capacity 

as Attorney General of the United States, 

et al., 

 Defendants.

MEMORANDUM OPINION 

This case involves the confluence of the federal government’s statutory obligations to 

ensure transparency and “fairly balanced” membership in forming advisory committees and the 

vital subject of policing in America during this time of great turmoil over racial injustice and 

allegations of police misconduct. The Court concludes that the government has not satisfied 

those obligations in forming and conducting a commission in 2020 to examine the sensitive and 

important issues affecting American law enforcement and the communities they serve. 

In October 2019, President Trump directed the Attorney General to establish the 

Presidential Commission on Law Enforcement and the Administration of Justice 

(“Commission”) to study a broad range of issues regarding law enforcement and the criminal 

justice system. After studying the issues, the Commission was to make recommendations to the 

Attorney General for ultimate submission to the President on actions to address crime, increase 

respect for the law, and assist victims. See Exec. Order No. 13,896, 84 Fed. Reg. 58,595 (Oct. 

28, 2019). The Attorney General, in turn, created that Commission in January 2020 in order to 

“conduct a modern fresh evaluation of the salient issues affecting American law enforcement and 
2 

the communities they protect” by focusing on issues that will enable law enforcement “to 

safeguard the public and maintain a positive relationship with their communities.” See 

Implementation Memorandum for Heads of Department Components (“Implementation Memo”) 

[ECF No. 25-5] at 1. Working groups addressing a wide range of fifteen subjects, including 

“social problems impacting public safety” and “respect for law enforcement,” were to assist in 

the Commission’s efforts. Id. at 4–6. 

The Attorney General stressed the need to hear from “[a] diversity of backgrounds and 

perspectives” such as “community organizations, civic leadership, civil rights and victim’s rights 

organizations, criminal defense attorneys, academia, social service organizations, and other 

entities that regularly interact with American law enforcement.” Id. at 2. Despite these stated 

goals, however, the Commission’s membership consists entirely of current and former law 

enforcement officials. No Commissioner has a criminal defense, civil rights, or community 

organization background. And Commission proceedings have been far from transparent. 

Especially in 2020, when racial justice and civil rights issues involving law enforcement have 

erupted across the nation, one may legitimately question whether it is sound policy to have a 

group with little diversity of experience examine, behind closed doors, the sensitive issues facing 

law enforcement and the criminal justice system in America today. 

But that is not the role of this Court. Here, the NAACP Legal Defense and Education 

Fund (“LDF”) has challenged the composition and operation of the Commission under the 

Federal Advisory Committee Act (“FACA”). Passed in 1972, FACA requires, among other 

things, that covered federal advisory committees be “fairly balanced” in the viewpoints 

represented, that meetings be open and publicly noticed, that a charter be prepared and filed, and 
3 

that a designated federal officer be appointed to ensure compliance with FACA. See 5 U.S.C. 

app. 2 §§ 1–16. 

LDF has now moved for summary judgment, arguing that the Commission has violated 

multiple provisions of FACA. In the face of LDF’s challenges, the government does not really 

defend the composition of the Commission as “fairly balanced” or contest the other transparency 

and oversight failures. Instead, the government argues that FACA does not apply to the 

Commission and that the case should be dismissed on standing or justiciability grounds. The 

Court disagrees. LDF has standing, the case is justiciable, and the exemption from FACA that 

the government relies upon is not applicable to the Commission. 

Hence, the Court will grant summary judgment in favor of LDF on several of its claims 

and order that Commission proceedings be halted—and no work product released—until the 

requirements of FACA are satisfied. 

BACKGROUND 

I. Federal Advisory Committee Act 

FACA, enacted in 1972, was “born of a desire to assess the need for the ‘numerous 

committees, boards, commissions, councils, and similar groups which have been established to 

advise officers and agencies in the executive branch of the Federal Government.’” Pub. Citizen 

v. Dep’t of Justice, 491 U.S. 440, 445–46 (1989) (quoting 5 U.S.C. app. 2 § 2(a)). “Its purpose 

was to ensure that new advisory committees be established only when essential and that their 

number be minimized; that they be terminated when they have outlived their usefulness; that 

their creation, operation, and duration be subject to uniform standards and procedures; that 

Congress and the public remain apprised of their existence, activities, and cost; and that their 

work be exclusively advisory in nature.” Id. at 446. FACA, therefore, would “cure specific ills, 
4 

above all the wasteful expenditure of public funds for worthless committee meetings and biased 

proposals.” Id. at 453. 

To achieve these ends, FACA imposes several requirements on “advisory committees.” 

See 5 U.S.C. app. 2 §§ 1–16. An “advisory committee” is “any committee, board, commission, 

council, conference, panel, task force, or other similar group, or any subcommittee or other 

subgroup thereof” that is “established” by statute, or “established or utilized” by the President or 

by one or more federal agencies, “in the interest of obtaining advice or recommendations for the 

President or one or more agencies or officers of the Federal Government.” Id. § 3(2). While the 

definition of “advisory committee” is broad, it excludes “any committee that is composed wholly 

of full-time, or permanent part-time, officers or employees of the Federal Government” or that is 

“created by the National Academy of Sciences or the National Academy of Public 

Administration.” Id. In addition, the Unfunded Mandates Reform Act (“UMRA”), enacted in 

1995, provides an exemption from FACA for “the exchange of official views regarding the 

implementation of public laws requiring shared intergovernmental responsibilities or 

administration.” H.R. Rep. No. 104-76, at 40 (1995) (Conf. Rep.). This limited UMRA 

exemption—invoked by the government here—applies only if (1) “meetings are held exclusively 

between Federal officials and elected officers of State, local, and tribal governments (or their 

designated employees with authority to act on their behalf) acting in their official capacities”; 

and (2) “such meetings are solely for the purpose of exchanging views, information, or advice 

relating to the management or implementation of Federal programs established pursuant to 

public law that explicitly or inherently share intergovernmental responsibilities or 

administration.” 2 U.S.C. § 1534(b). 
5 

Among other requirements, an advisory committee subject to FACA cannot meet until a 

“charter has been filed” with the head of the agency to which it reports and with the House and 

Senate committees having legislative jurisdiction over that agency. 5 U.S.C. app. 2 § 9(c). The 

charter must also be filed with the Library of Congress and the Committee Management 

Secretariat of the General Services Administration (“GSA”).1 41 C.F.R. § 102-3.70(a)(3)–(4). 

Each committee must also have a “designated [] officer or employee of the Federal Government 

to chair or attend each meeting.” 5 U.S.C. app. 2 § 10(e). The designated federal officer serves 

as the primary contact for members of the public who seek more information about the advisory 

committee’s meetings and hearings. 41 C.F.R. § 102-3.150(a)(5). Moreover, advisory 

committees must give notice of any meetings in the Federal Register at least fifteen days before 

the meeting is held. 5 U.S.C. app. 2 § 10(a)(2); 41 C.F.R. § 102-3.150(a). Meetings must be 

open to the public, 5 U.S.C. app. 2 § 10(a)(1), and each committee must make its records and 

drafts publicly available, id. § 10(b)–(c). 

As for composition, “the membership of [an] advisory committee [must] be fairly 

balanced in terms of the points of view represented and the functions to be performed by the 

advisory committee.” Id. § 5(b)(2). Relatedly, the directive establishing an advisory committee 

must “contain appropriate provisions to assure that the advice and recommendations of the 

advisory committee will not be inappropriately influenced by the appointing authority or by any 

special interest, but will instead be the result of the advisory committee’s independent 

judgment.” Id. § 5(b)(3). 

1

 Congress tasked the GSA with prescribing regulatory guidelines for advisory committees. See 5 U.S.C. 

app. 2 § 7(c); 41 C.F.R. § 102-3. 
6 

II. Presidential Commission on Law Enforcement and the Administration of Justice 

On October 28, 2019, President Trump signed Executive Order 13,896 directing Attorney 

General Barr to establish the Presidential Commission on Law Enforcement and the 

Administration of Justice. Exec. Order No. 13,896, 84 Fed. Reg. at 58,595, § 2(a). The 

Commission’s function would be to “study issues related to law enforcement and the 

administration of justice and to make recommendations to the Attorney General, who shall 

submit a report and recommendations to the President, on actions that can be taken to prevent, 

reduce, and control crime, increase respect for the law, and assist victims.” Id. § 3(a). The 

Executive Order directs that the Attorney General “shall determine the composition of and 

procedures for the functioning of the Commission.” Id. § 2(b). “Officers or employees of the 

Federal Government designated to the Commission shall be full-time, or permanent part-time, 

officers or employees of the Federal Government” and “[t]he Attorney General may, at his 

discretion, invite elected officers of State, local, and tribal governments (or their designated 

employees with authority to act on their behalf) to serve on the Commission in their official 

capacities.” Id. § 2(c)–(d). 

On January 21, 2020, Attorney General Barr established the Commission along with its 

membership and procedures. See Implementation Memo at 1. Because “diversity of 

backgrounds and perspectives” is important to the Commission’s work, Barr explained, “the 

Commission, a deliberative body tasked with improving American policing, should consist of 

law enforcement officials from a variety of backgrounds, positions, areas, and expertise.” Id. at 

2. Further, Barr wrote, the Commission should “solicit input and information from various 

sectors of society” including civil rights organizations, community organizations, and criminal 

defense attorneys. Id. Attorney General Barr appointed eighteen members to the Commission, 
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including Phil Keith as Chair and Katharine Sullivan as Vice Chair. Id. at 3-4. All the appointed 

members are either Federal officials or elected officers of State, local, and tribal governments, or 

have been designated to serve on a mayor or governor’s behalf. Id. And all members are current 

or former law enforcement professionals, including police officers, leaders of law enforcement 

agencies, and prosecutors. See Am. Compl. [ECF No. 26] ¶¶ 46–47 (citing biographical 

information published on the Commission’s website). No member has a criminal defense, civil 

rights, or community organization background. Id. ¶ 48–49 (citing same biographical 

information). 

Attorney General Barr also explained that the Commission would be “assisted in its 

deliberations” by fifteen “working groups” that provide recommendations in various subject 

areas. Implementation Memo at 4–6. These subjects include social problems impacting public 

safety, police officer health, grant programs, respect for law enforcement, business and 

community development, reduction of crime, victim services, re-entry programs and initiatives, 

and homeland security, among others. Id. “The working groups and their members do not 

constitute the Commission” and “serve exclusively in a consultative capacity.” Id. at 4. Further, 

the memorandum noted, “[t]he Commission serves exclusively to advise the Attorney General 

and the President” and “is not intended to be subject to either the Federal Advisory Committee 

Act or Administrative Procedure Act.” Id. at 7. 

Attorney General Barr ordered the Chair to submit the Commission’s report, “which shall 

consist of a summary of the Commission’s actions to investigate the issues identified, an analysis 

of the information received by the Commission, and the recommendations of the 

Commissioners,” by no later than October 28, 2020. Id. at 6. Within sixty days of receiving the 
8 

Chair’s report, “the Attorney General, following consultation with the Director of the Office of 

Management and Budget, will submit a report and recommendations to the President.” Id. 

The Commission began holding hearings on February 27, 2020. As of the filing of the 

Amended Complaint, the Commission had held subsequent hearings on 29 days throughout 

March, April, and May of 2020. See United States Dep’t of Justice, Presidential Commission on 

Law Enforcement, Hearings, https://www.justice.gov/ag/presidential-commission-lawenforcement-and-administration-justice/hearings (last accessed September 30, 2020). None of 

these hearings were noticed in the Federal Register (or otherwise) and LDF alleges they were not 

open to the public. See Decl. of Monique L. Dixon (“Dixon Decl.”) [ECF No. 25-25] ¶ 15; Am. 

Compl. ¶¶ 121–35. Many private citizens, including leaders of law enforcement advocacy 

organizations and social services organizations, academics, and private consultants, participated 

in these hearings alongside Commission members by providing testimony and asking questions. 

See Am. Compl. ¶¶ 143–54 (citing hearing transcripts and witness bios). These hearings have 

covered a wide range of topics related to the working groups’ study areas. Id. (citing hearing 

transcripts). 

In February 2020, the Commission posted a notice on its website offering interested 

members of the public the opportunity to submit comments through May 31, 2020 regarding any 

aspect of the Commission’s work. See Dixon Decl. ¶ 6. But at some point between March 13 

and March 28, the Commission shortened the comment window by two months, requiring all 

submissions by March 31, 2020, without posting notice in the Federal Register. Id. ¶ 7–8. After 

discovering the new deadline three days before it passed, LDF submitted a letter on March 31, 

2020 to Attorney General Barr, Phil Keith, and Katharine Sullivan, objecting to the 

Commission’s imbalanced membership and lack of transparency. See Corrected Comment 
9 

Letter (March 31, 2020) [ECF No. 25-28]. LDF urged the prompt appointment of “additional 

commissioners that would create the balance of viewpoints required by the Federal Advisory 

Committee Act,” such as civil rights leaders, public health experts, and academics. Id. at 2. And 

LDF noted that it and other civil rights organizations were “publicly and robustly engaged in 

addressing issues of public safety and law enforcement” and had served on President Obama’s 

Task Force on 21st Century Policing in 2014. Id. Commission leaders Keith and Sullivan 

acknowledged the letter on April 14, 2020 and said the comment window had been re-opened 

through April 30, 2020, but did not address LDF’s request to appoint new Commissioners or 

LDF’s other transparency concerns. See Corrected Response Letter (Apr. 14, 2020) [ECF No. 

25-29]. 

III. Litigation History 

On April 30, 2020, LDF brought this action against the Attorney General of the United 

States; the Department of Justice (“DOJ”); the Commission; Phil Keith, in his official capacity as 

Chair of the Commission; and Katharine Sullivan, in her official capacity as Vice Chair of the 

Commission, alleging several violations of FACA. See Compl. [ECF No. 1] at 1. LDF brought 

claims against Keith, Sullivan, and the Commission under the Mandamus Act (Counts I, II, and 

III), against Attorney General Barr and the DOJ under the Administrative Procedure Act 

(“APA”) (Count IV), and against all defendants under the Declaratory Judgment Act (Count V). 

See Compl.; Am. Compl. As amended, Count I alleges that the Commission is not fairly 

balanced, 5 U.S.C. app. 2 § 5(b)(2), or free from inappropriate influence, id. § 5(b)(3). Count II 

alleges that the Commission has failed to file a charter. Id. § 9(c). Count III alleges that the 

Commission has not made its hearings open to the public, id. § 10(a)(1), published timely notice 

of each meeting in the Federal Register, id. § 10(a)(2), or made its records available for public 
10 

inspection, id. § 10(b). Count IV incorporates LDF’s fair balance and public records claims 

against defendants Barr and DOJ, respectively, and also alleges that Barr failed to appoint a 

designated federal officer for the Commission. Id. § 10(e); 41 C.F.R. § 102-3.120. And Count 

V alleges that LDF is entitled to a declaration that all of the foregoing conduct violates FACA. 

Plaintiff has now moved for summary judgment on its claims that defendants have 

violated FACA by failing to (1) ensure fairly balanced membership of the Commission, (2) file a 

charter with the required entities, (3) appoint a designated federal officer, and (4) provide timely 

notice of meetings in the Federal Register. See Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. 

(“Pl.’s Br.”) [ECF No. 25-2]. Defendants have moved to dismiss Counts I, II, IV, and V of 

plaintiff’s Amended Complaint for lack of standing and all five counts for failure to state a 

claim. See Opp’n to Pl.’s Mot. for Summ. J. & Mem. in Supp. of Defs.’ Cross-Mot. to Dismiss 

or, in the Alternative, for Summ. J (“Defs.’ Opp’n”) [ECF. No. 33-1]. In the alternative, 

defendants have cross-moved for summary judgment. See id. In addition to challenging 

standing, defendants argue that the Commission is exempt from FACA under UMRA and that 

plaintiff’s fair balance and inappropriate influence claims are nonjusticiable. Id. at 14–26. A 

hearing was held on September 17, 2020, and those motions are now fully briefed and ripe for 

consideration.2

2

 LDF has also moved to supplement the record with twelve new documents. See Mot. to Supp. R. [ECF 

No. 40] at 2. That motion is also now fully briefed and ripe for consideration. The Court will grant LDF’s motion to 

supplement the record. The Court has broad discretion to allow parties to supplement the record. See Ramsey v. 

Moniz, 75 F. Supp. 3d 29, 47 (D.D.C. 2014). And supplementation may be proper even after summary judgment 

motions have been fully briefed if new relevant facts come to light. See James Madison Project v. Dep’t of Justice, 

330 F. Supp. 3d 192, 200–01 (D.D.C. 2018). Here, LDF obtained relevant materials through a series of public 

records requests filed shortly after the Court’s order holding discovery in abeyance. See Mot. to Supp. R. at 4. 

Defendants have not shown that they will be prejudiced by the admission of these documents. However, although 

the Court has considered these documents, they ultimately have no bearing on the Court’s resolution of the summary 

judgment motions. 
11 

LEGAL STANDARD 

Summary judgment is appropriate when the pleadings and the evidence demonstrate that 

“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247–48 (1986). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under 

governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary 

judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) 

(quoting Anderson, 477 U.S. at 248). An issue is “genuine” if the evidence is such that a 

reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 

372, 380 (2007). 

The party seeking summary judgment bears the initial responsibility of identifying 

portions of the record that demonstrate the absence of a genuine dispute of material 

fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The evidence of the non-movant 

is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 

U.S. at 255. The Court must “eschew making credibility determinations or weighing the 

evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The nonmoving party’s 

opposition “must consist of more than mere unsupported allegations or denials and must be 

supported by affidavits, declarations or other competent evidence, setting forth specific facts 

showing that there is a genuine issue for trial.” Morales v. Humphrey, 309 F.R.D. 44, 46 

(D.D.C. 2015) (citing Fed. R. Civ. P. 56(c)). If the non-movant’s evidence is “merely colorable” 

or “not significantly probative,” then summary judgment may be granted. Anderson, 477 U.S. at 

249–50. 
12 

To survive a motion to dismiss for lack of subject-matter jurisdiction under Rule 

12(b)(1), the plaintiff must establish the court’s jurisdiction by a preponderance of the 

evidence. Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 845 F. Supp. 2d 288, 294 

(D.D.C. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). “In order to 

establish jurisdiction, a plaintiff must establish standing.” Food & Water Watch, Inc. v. Vilsack, 

808 F.3d 905, 913 (D.C. Cir. 2015). “The plaintiff must demonstrate standing for each claim . . . 

and for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 

1645, 1650 (2017) (internal quotations marks and citation omitted); see also Davis v. FEC, 554 

U.S. 724, 734 (2008). “The question at this early juncture in the litigation is whether plaintiffs 

have plausibly alleged standing . . . [;] plaintiffs need not yet establish each element 

of standing by a preponderance of the evidence.” In re U.S. Office of Pers. Mgmt. Data Sec. 

Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (citing Lujan, 504 U.S. at 561). 

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a 

complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 

claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). Determining a claim’s plausibility is “a context-specific task 

that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 

679. Complaints “are to be construed with sufficient liberality to afford all possible inferences 

favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 

1106 (D.C. Cir. 2005). 
13 

ANALYSIS 

I. Standing 

As an initial matter, the government argues that LDF lacks standing to challenge the 

Commission’s allegedly imbalanced membership, failure to file a charter, and lack of a 

designated federal officer, and moves to dismiss these claims under Rule 12(b)(1). See Defs.’ 

Opp’n at 10–13. The now familiar requirements for constitutional standing are an injury in fact, 

fairly traceable to the challenged conduct, and redressable by a favorable judicial decision. 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); Lujan, 504 U.S. at 560–61. “To survive a 

motion to dismiss for lack of standing, a complaint must state a plausible claim that the plaintiff 

has suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be 

redressed by a favorable decision on the merits.” Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 

4, 8 (D.C. Cir. 2015). And in order to have suffered an injury in fact, plaintiffs must have 

suffered “an invasion of a legally protected interest that is concrete and particularized and actual 

or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (internal quotation 

marks omitted). A concrete injury is “direct, real, and palpable—not abstract.” Pub. Citizen, 

Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1292 (D.C. Cir. 2007). A 

particularized injury is “personal, individual, distinct, and differentiated—not generalized or 

undifferentiated.” Id. An actual or imminent injury is “certainly impending and immediate—not 

remote, speculative, conjectural, or hypothetical.” Id. at 1293. And the Supreme Court has 

recognized that “deprivation of a procedural right without some concrete interest that is affected 

by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.” 

Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). 
14 

The government first contends that LDF has not established injury in fact for three of its 

claims: imbalanced membership, failure to file a charter, and failure to appoint a designated 

federal officer. See Defs.’ Opp’n at 12. The Court is not persuaded. LDF has suffered injury in 

fact for all of its claims. To start, the government concedes that plaintiff has “informational” 

standing for Count III, which alleges that the Commission has not provided timely notice of or 

public access to its meetings and has not made its records available for public inspection. See id. 

at 11. Indeed, the Supreme Court held in Public Citizen v. Department of Justice, 491 U.S. 440 

(1989), that “refusal to permit appellants to scrutinize [a] Committee’s activities to the extent 

FACA allows constitutes a sufficiently distinct injury to provide standing to sue.” Id. at 449. 

And as the government conceded at oral argument, Public Citizen specifically held that a 

committee’s failure to file a charter injured interested parties. See September 17, 2020 Hr’g Tr. 

[ECF No. 43] at 31:6–13; see also Pub. Citizen, 491 U.S. at 449. Similarly, because the 

designated federal officer requirement ensures that regulators and the public can obtain 

information about committees’ operations, the Commission’s failure to employ a designated 

federal officer has injured LDF. See 41 C.F.R. § 102-3.150(a)(5). 

As for LDF’s fair balance claim, although this is the closest call, the Court concludes that 

LDF has also suffered an injury in fact because the government has denied LDF access to a 

representative voice on the Commission. LDF has an interest in and is directly impacted by the 

Commission’s function of studying policing. See Am. Compl. ¶¶ 6, 214. LDF has “worked in 

the area of policing reform since its inception” in 1940, and its staff has worked for many years 

to “develop and promote fair and accountable policing practices.” Dixon Decl. ¶¶ 3–4. And 

LDF alleges it was denied access to representation on the Commission. Because Attorney 

General Barr appointed the Commissioners at the same time as establishing the Commission, and 
15 

only selected from those with law enforcement backgrounds, it does not appear that LDF and its 

representatives had an opportunity to formally apply for Commission membership. But on 

March 31, 2020, LDF sent a letter to Barr and the Commission requesting the prompt 

appointment of “additional commissioners that would create the balance of viewpoints required 

by the Federal Advisory Committee Act,” such as civil rights leaders, public health experts, and 

academics. See Corrected Comment Letter (March 31, 2020). And LDF noted that it was 

“publicly and robustly engaged in addressing issues of public safety and law enforcement” and 

served as a witness before President Obama’s Task Force on 21st Century Policing in 2014. Id. 

Commission leaders Keith and Sullivan did not address LDF’s request to appoint new 

Commissioners. See Corrected Response Letter (Apr. 14, 2020). 

The D.C. Circuit has previously suggested that denial of access to representation on an 

advisory committee is a sufficiently concrete harm to constitute an injury in fact. See Nat’l AntiHunger Coal. v. Exec. Comm. of President’s Private Sector Survey on Cost Control, 711 F.2d 

1071, 1074 n.2 (D.C. Cir. 1983) (stating, in dictum, that the purpose of FACA is “to ensure that 

persons or groups directly affected by the work of a particular advisory committee would have 

some representation on the committee. When the requirement is ignored, therefore, persons 

having a direct interest in the committee’s purpose suffer injury-in-fact sufficient to confer 

standing to sue.”); Physician’s Educ. Network, Inc. v. Dep’t of Health, Educ. & Welfare, 653 

F.2d 621, 623 n.3 (D.C. Cir. 1981) (per curiam) (citing cases in which such allegations were 

sufficient for standing); see also Wash. Legal Found. v. Am. Bar Ass’n Standing Comm. on Fed. 

Judiciary, 648 F. Supp. 1353, 1357–58 (D.D.C. 1986) (finding standing for fair balance claim in 

factual circumstances related to those in Public Citizen). Courts in other circuits to consider 

challenges under FACA’s fair balance provision have likewise found standing. See, e.g., Nat. 
16 

Res. Def. Council v. Dep’t of Interior, 410 F. Supp. 3d 582, 601–02 (S.D.N.Y. 2019) (noting that 

“the weight of the caselaw” indicates that “if a party with a direct interest in the committee’s 

work” is “denied access” to membership, then “that party has standing to challenge the denial”); 

Ctr. for Pol’y Analysis on Trade & Health v. Office of U.S. Trade Representative, No. C05-

05177, 2006 WL 8446407, at *3 (N.D. Cal. June 29, 2006), aff’d, 540 F.3d 940, 943 n.2 (9th Cir. 

2008), as amended (Oct. 8, 2008); Nw. Ecosystem All. v. Office of U.S. Trade Representative, 

No. C99-1165, 1999 WL 33526001, at *2–3 (W.D. Wash. Nov. 9, 1999). 

The government’s primary case arguing otherwise, R.J. Reynolds Tobacco Co. v. FDA, 

810 F.3d 827 (D.C. Cir. 2016), is inapposite. There, cigarette manufacturers sued the Food and 

Drug Administration (“FDA”), alleging that three of the twelve members of an advisory 

committee on the health impacts of menthol cigarettes had conflicts of interest. Id. at 828. The 

D.C. Circuit held that the prospect of future action adverse to plaintiff’s interests based on the 

committee’s report did not suffice to establish an injury in fact for Article III standing because 

“the appointment of the challenged committee members by no means rendered the risk of 

eventual adverse FDA action substantially probable or imminent.” Id. at 830. But R.J. Reynolds 

was not a FACA case. Moreover, the manufacturers did not allege a representational injury (or 

any other similar injury). Nor did the manufacturers seek relief against the advisory committee 

itself or claim that their viewpoints were not represented by the other committee members. 

Instead, they alleged harms from the likely outcomes of the committee report or subsequent 

agency action. Id. at 829. Here, LDF does not claim its injury is that the report might eventually 

result in executive action adverse to its interests. Rather, LDF alleges a representational injury 

that has already accrued (and continues to accrue). 
17 

The government also argues that neither LDF, nor any of its representatives, have an 

individual right to be appointed to the Commission. See Def’s Opp’n at 12–13. That may be 

true, but “the harm arises not because a given individual is entitled to a seat on an advisory 

committee, but rather because she is entitled to a fair adjudication of her application for 

membership.” Nat. Res. Def. Council, 410 F. Supp. 3d at 602. 

In its reply brief, the government argues for the first time that LDF’s injuries are not 

redressable. See Defs.’ Reply in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. 

(“Defs.’ Reply”) [ECF No. 38] at 7–8. The Court disagrees and concludes that both LDF’s 

informational and representational injuries are likely to be redressed by a favorable decision on 

the merits. First, LDF’s injuries are redressable by mandamus and injunctive relief. The Court 

can—and, as explained below, will—order the Commission to file a charter and provide timely 

notice of meetings; order defendant Barr to appoint a designated federal officer and ensure the 

Commission has a fairly balanced membership; and order defendants to refrain from publishing 

any report produced by the Commission until the requirements of FACA are satisfied. This 

relief will allow LDF to scrutinize the Commission’s activities and will provide access to a 

representative voice on the Commission, redressing the asserted injuries—that defendants have 

injured LDF by denying LDF access to information, and thus limiting oversight, and that 

defendants have “limit[ed] [LDF’s] ability and right to have a representative voice on the 

Commission on an issue with which [LDF] is engaged.” See Am. Compl. ¶ 214. 

Even if LDF cannot secure complete relief, these “potential gains are undoubtedly 

sufficient to give [LDF] standing.” See Pub. Citizen, 491 U.S. at 451. In Public Citizen, for 

example, the Supreme Court rejected the argument that plaintiff’s injury was not redressable 

because the meetings and documents plaintiff sought to access might be legitimately closed to 
18 

the public. Id. at 450–51; see also, e.g., Pub. Citizen v. Nat’l Advisory Comm. on 

Microbiological Criteria for Foods, 886 F.2d 419, 435 (D.C. Cir. 1989) (“[T]here are no 

problems here with redressability. . . . The alleged injury from the lack of any consumer 

representative is easily remedied by the relief requested by Public Citizen—an injunction 

suspending operation of the Committee until consumers are represented on it. . . . [I]t does not 

matter that every one of the plaintiffs’ preferred viewpoints might not be represented on the 

Committee or that they might not be afforded the precise extent of representation sought on the 

Committee.”) (per curiam) (Edwards, J., concurring in part and dissenting in part); Elec. Privacy 

Info. Ctr. v. Nat’l Sec. Comm’n on Artificial Intelligence, No. 1:19-CV-02906 (TNM), 2020 WL 

2838568, at *18 (D.D.C. June 1, 2020) (ordering commission to begin providing timely notice of 

meetings); Nat. Res. Def. Council, 410 F. Supp. 3d at 602–03 (rejecting a redressability 

challenge because “violations of FACA’s fair balance requirement [could] be remedied by ‘good 

faith effort[s]’ to appoint a ‘properly qualified . . . representative’ from the excluded viewpoints” 

(quoting Nw. Ecosystem All., 1999 WL 33526001, at *8)). 

The Court acknowledges that the Commission may have already completed much of its 

work. But the Commission has not yet been terminated, and the report based on its work has not 

yet been submitted to the President. President Trump’s Executive Order provides that the 

“Commission shall terminate no later than 90 days after submitting its report and 

recommendations to the Attorney General, unless extended by the President.” Exec. Order No. 

13,896, 84 Fed. Reg. at 58,597, § 5. The Commission is not required to submit its report and 

recommendations to the Attorney General until October 28, 2020. See Implementation Memo at 

6. Even if the Commission has, in fact, already done so, the Commission could exist for up to 
19 

ninety days after that submission and might be extended by the President. Thus, at this juncture, 

LDF’s injuries are redressable by mandamus and injunctive relief. 

Indeed, even if the Commission were terminated today, LDF’s injuries would still be 

redressable. The D.C. Circuit has “made it clear that FACA rights are enforceable even after an 

advisory committee has been disbanded.” Cummock v. Gore, 180 F.3d 282, 292 (D.C. Cir. 

1999); see also Byrd v. EPA, 174 F.3d 239, 243–44 (D.C. Cir. 1999) (rejecting argument that 

plaintiff’s injury was not redressable where panel had already completed its work and been 

disbanded); Judicial Watch, Inc. v. Nat’l Energy Pol’y Dev. Grp., 219 F. Supp. 2d 20, 32 

(D.D.C. 2002) (noting that the proposition “that relief can exist beyond the life of the committee 

. . . is binding on this Court”). In Byrd, the D.C. Circuit held that plaintiff’s informational injury, 

stemming from the committee’s failure to release its documents on time, was redressable even 

though the panel had already been disbanded and plaintiff had already received the documents 

sought. 174 F.3d at 244. The court explained that “declaratory relief will redress Byrd’s injury 

because it will provide him with this Court’s declaration that the agency failed to comply with 

FACA; and such a declaration will give Byrd ‘ammunition for [his] attack on the Committee’s 

findings’ in subsequent agency proceedings that make use of the [report].” Id. (citation omitted); 

see also Ctr. for Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 839 n.* (D.C. Cir. 

2008) (“regardless whether mandamus relief is available, a declaration of [plaintiff’s] legal right 

to the materials could form the basis of an injunction against the [agency], which would redress 

[plaintiff’s] claimed injury.”); Physicians Comm. for Responsible Med. v. Glickman, 117 F. 

Supp. 2d 1, 5 (D.D.C. 2000) (“declaratory relief . . . will give [plaintiffs] ammunition for [their] 

attack on the Committee’s findings. How effective such ammunition will be is not for this Court 

to say.” (internal quotation marks and citation omitted)). 
20 

 Here, declaratory relief would provide LDF ammunition for any future legal attack on the 

Commission’s findings or any action taken in reliance on those findings. LDF can point to the 

Commission’s imbalance and failure to satisfy FACA’s procedural requirements in challenging 

the report or future agency actions. And while the Court will order mandamus and injunctive 

relief along with a declaratory judgment, ordering declaratory relief alone to redress LDF’s 

informational and representational injuries would not be unprecedented. In Northwest Forest 

Resource Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994), for instance, the court ordered 

declaratory relief alone to remedy a slew of FACA violations, including failure to file a charter, 

post timely notice of meetings, and ensure a fairly balanced membership. See id. at 1013–15. 

 For these reasons, the Court will not dismiss any of LDF’s claims for lack of standing. 

II. Justiciability 

The government contends that LDF’s claims that the Commission is imbalanced and 

inappropriately influenced should be dismissed as nonjusticiable because FACA’s “fair balance” 

and “inappropriate influence” requirements lack judicially manageable standards. See Defs.’ 

Opp’n at 14. The Court is not persuaded. 

Judicial review is available to challenge government action so long as there are 

“meaningful standards for defining the limits of the agency’s discretion”—in other words, “law 

to apply.” Physicians for Soc. Responsibility v. Wheeler, 956 F.3d 634, 643 (D.C. Cir. 2020) 

(brackets and internal quotation marks omitted) (quoting Heckler v. Chaney, 470 U.S. 821, 834 

(1985)). “Judicially manageable standards may be found in formal and informal policy 

statements and regulations as well as in statutes.” Steenholdt v. Fed. Aviation Admin., 314 F.3d 

633, 638 (D.C. Cir. 2003) (internal quotation marks omitted). Moreover, the “difficulty of 

defining the boundaries of a” standard does not make it nonjusticiable. Cody v. Cox, 509 F.3d 
21 

606, 610 (D.C. Cir. 2007). Indeed, the D.C. Circuit has found meaningful standards even in 

“permissive and indeterminate language.” Wheeler, 956 F.3d at 643. For example, a statute 

requiring only “high quality and cost-effective” care provided a reviewable standard. Cody, 509 

F.3d at 610. So did a statute allowing a military records board to “excuse a failure to file ... if it 

finds it to be in the interest of justice.” Dickson v. Sec’y of Def., 68 F.3d 1396, 1399, 1404 

(D.C. Cir. 1995). 

A. Fair Balance 

Important for the present case is the D.C. Circuit’s decision in Public Citizen v. National 

Advisory Committee on Microbiological Criteria for Foods (“Microbiological”), 886 F.2d 419 

(D.C. Cir. 1989) (per curiam). There, the Circuit deemed FACA’s fair balance requirement—the 

same requirement that the government now argues is nonjusticiable—justiciable. This is, 

admittedly, a difficult decision to parse, with each judge on the panel writing separate opinions. 

Nevertheless, it is clear that two of the three judges thought the fair balance requirement was 

justiciable. Judge Edwards explicitly said that it was. Id. at 433 (Edwards, J., concurring in part 

and dissenting in part). And Judge Friedman reached the merits of whether the committee was 

fairly balanced—thus necessarily deeming the requirement justiciable (because he judged it). 

See id. at 423–24 (Friedman, J., concurring in the judgment). In arguing that the requirement is 

not justiciable, the government relies almost exclusively on Judge Silberman’s lone concurrence, 

in which he opined that there is “no principled basis for a federal court to determine which 

among the myriad points of view deserve representation on particular advisory committees” or 

“which organizations or individuals qualif[y] as bona fide” representatives of those views. Id. at 

426–29 (Silberman, J., concurring); see also Defs.’ Opp’n at 15–16. But Judge Silberman’s 

views did not carry the day. 
22 

The government contends that Judge Edwards and Judge Friedman, too, “concluded that 

FACA provides no meaningful standards by which to determine whether an advisory committee 

is ‘fairly balanced’ in terms of the viewpoints represented.” See Defs.’ Reply at 10. That is 

simply wrong. True, Judge Edwards said that “Congress clearly did not intend courts to inquire 

into the specific opinions of every committee member in order to determine if a committee is 

unbalanced.” 886 F.2d at 437. But that is because Congress “accepted that a person’s 

viewpoints could be inferred from his or her background and employment status” rather than 

“professed personal opinions.” Id. (emphasis added). For example, “one can presume that 

industry representatives will tend to represent industry interests.” Id.3 Regardless, Judge 

Edwards’s statements about how to assess viewpoints are irrelevant to the threshold question of 

justiciability. He clearly thought the “fair balance” provision was justiciable, explaining that 

even if it “falls short of mathematical precision in application,” courts still “have a duty to hear 

and decide . . . cases” challenging the composition of advisory committees under the provision. 

Id. at 434. 

Similarly, Judge Friedman stated that the determination of how to attain a “fairly 

balanced” membership “necessarily lies largely within the discretion of the official who appoints 

the committee.” Id. at 424. But he did not say this determination was unreviewable. In fact, he 

reviewed it. Judge Friedman explained that the “appropriate inquiry in determining whether the 

Committee’s membership satisfies the ‘fairly balanced’ standard in section 5(b)(2) is whether the 

Committee’s members ‘represent a fair balance of viewpoints given the functions to be 

performed.’” Id. at 423 (citation omitted). Applying this standard, he concluded that because 

3

 Perhaps Judge Edwards would have rejected LDF’s argument that the Commission is not fairly balanced 

because many Commissioners have issued public statements supporting zero-tolerance law enforcement and 

skepticism of criminal justice reform efforts. See Am. Compl. ¶¶ 61–69. But LDF’s main argument is that the 

Commission is imbalanced in terms of background because all the Commissioners are current or former law 

enforcement officials. See id. ¶¶ 43–60. 
23 

the committee’s function involved “highly technical and scientific studies and recommendations, 

a ‘fair balance’ of viewpoints [could] be achieved even though the Committee d[id] not have any 

members who [were] consumer advocates.” Id. at 424. That merits determination necessarily 

rests on an underlying conclusion that the issue is justiciable. 

In the face of this precedent, a few judges in this District have nonetheless deemed 

FACA’s fair balance requirement nonjusticiable, favorably citing Judge Silberman’s opinion. 

See Physicians for Soc. Responsibility v. Wheeler, 359 F. Supp. 3d 27, 44 (D.D.C. 2019), rev’d 

on other grounds, 956 F.3d 634 (D.C. Cir. 2020)4; Fertilizer Inst. v. EPA, 938 F. Supp. 52, 54 

(D.D.C. 1996); Pub. Citizen v. Dep’t of Health & Hum. Servs., 795 F. Supp. 1212, 1213–23 

(D.D.C. 1992). But this Court will not. 

Even leaving aside Microbiological, both the statutory language in § 5(b)(2) and FACA’s 

implementing regulations establish a meaningful standard for review. First, the statutory 

language alone suggests that § 5(b)(2) is justiciable. FACA mandates that the President or 

agency head establishing a committee “shall” “require the membership of the advisory 

committee to be fairly balanced in terms of the points of view represented and the functions to be 

performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2), (c). The use of the term 

“shall” suggests the absence of discretion. See Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 

(2015) (“the word ‘shall’ admits of no discretion”). And although the term “fairly balanced” 

may be imprecise, it provides guidance at least in extreme cases. At a minimum, “this language 

would provide a standard for a reviewing court to determine whether there had been a deliberate 

4

 LDF says the D.C. Circuit “reaffirmed the justiciability of FACA’s ‘fairly balanced’ and ‘inappropriately 

influenced’ provisions earlier this year, reversing a district court’s determination that neither provision provided 

meaningful standards for judicial review.” See Pl.’s Resp. in Opp’n to Defs.’ Cross-Mot. to Dismiss or, in the 

Alternative, for Summ. J. and Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Opp’n”) [ECF No. 35] at 11 (citing 

Wheeler, 956 F.3d at 643). But while the district court held that FACA’s “fair balance” requirement was not 

justiciable, that was not the issue on appeal. The D.C. Circuit reversed on other grounds. 
24 

and explicit effort to avoid the representation of any competing viewpoints on the subject matter 

of an advisory committee.” Nat. Res. Def. Council, 410 F. Supp. 3d at 604. For instance, “it 

would clearly violate the ‘fairly balanced’ requirement if the Secretary were to announce that he 

would exclude all points of view except one.” Id. If a statute provides a meaningful standard for 

review even in extreme cases, it is justiciable. See Mach Mining, 575 U.S. at 488 (holding that 

the word “endeavor” provides a justiciable standard partly because it can be enforced if the 

agency did not make any effort whatsoever). 

But the Court need not rely on the statutory language alone because FACA’s 

implementing regulations provide further law to apply. These regulations, promulgated by the 

GSA at the direction of Congress, see 5 U.S.C. app. 2 § 7(c), explain that before establishing a 

new committee, an agency head must consult with the Committee Management Secretariat at the 

GSA. 41 C.F.R. § 102-3.60. As a part of that consultation, the agency head must submit a 

“description of the agency’s plan to attain fairly balanced membership” that ensures “the agency 

will consider a cross-section of those directly affected, interested, and qualified, as appropriate to 

the nature and functions of the advisory committee.” Id. § 102-3.60(b)(3). Moreover, 

“committees requiring technical expertise should include persons with demonstrated professional 

or personal qualifications and experience relevant to the functions and tasks to be performed.” 

Id. Finally, the regulations contain an appendix that “identifies key points and principles that 

may be applied to situations not covered elsewhere.” 41 C.F.R. § 102-3, subpt. B, app. A. The 

appendix lists factors that “should be considered in achieving a ‘balanced’ advisory committee 

membership,” which include: “(i) The advisory committee’s mission; (ii) The geographic, ethnic, 

social, economic, or scientific impact of the advisory committee’s recommendations; (iii) The 

types of specific perspectives required, for example, such as those of consumers, technical 
25 

experts, the public at-large, academia, business, or other sectors; (iv) The need to obtain 

divergent points of view on the issues before the advisory committee; and (v) The relevance of 

State, local, or tribal governments to the development of the advisory committee’s 

recommendations.” Id. These standards, while perhaps difficult to apply with mathematical 

precision, are far more precise than other standards, like “in the interest of justice,” that the D.C. 

Circuit has deemed reviewable. See Dickson, 68 F.3d at 1398. 

Congress enacted FACA to constrain executive discretion, suggesting it did not intend to 

preclude judicial review. FACA’s “principal purpose was to enhance the public accountability 

of advisory committees established by the Executive Branch and to reduce wasteful expenditures 

on them.” Public Citizen, 491 U.S. at 459. In particular, the provisions of § 5 (including the fair 

balance and inappropriate influence provisions) were “designed to counter ‘the belief that these 

[advisory] committees do not adequately and fairly represent the public interest [or] that they 

may be biased toward one point of view or interest.’” Microbiological, 886 F.2d at 423 

(Friedman, J., concurring in the judgment) (quoting S. Rep. No. 1098, 92d Cong., 2d Sess. 4–5 

(1972)). Thus, “it is implausible to conclude that Congress simultaneously passed a law 

designed to constrain executive discretion and ensure Executive Branch accountability, while 

also wholly precluding judicial review of advisory committee design decisions.” Nat. Res. Def. 

Council, 410 F. Supp. 3d at 604. 

This conclusion accords not only with the D.C. Circuit’s decision in Microbiological, but 

also with the majority view among other Circuits. For instance, the First Circuit held earlier this 

year that “FACA does provide justiciable standards” because the “concepts of fairness, balance, 

and influence are not foreign to courts, [which] are certainly capable of reviewing agency actions 

with reference to those concepts in at least some factual scenarios.” Union of Concerned 
26 

Scientists v. Wheeler, 954 F.3d 11, 19, 22 (1st Cir. 2020). The Fifth Circuit similarly held that 

“FACA’s requirements that advisory committees be fairly balanced and adequately staffed are 

justiciable.” Cargill, Inc. v. United States, 173 F.3d 323, 335 (5th Cir. 1999). The government 

misleadingly argues that Cargill determined only that the “limited question” of “whether a single 

industry representative needed to be included on the committee” was justiciable. See Defs.’ 

Reply at 11. That is false. Cargill squarely held that the entire “fair balance” requirement was 

justiciable, although it concluded that an additional representative on the committee was 

unnecessary. See 173 F.3d at 335. The Tenth Circuit, too, “adopt[ing] the reasoning of the Fifth 

and D.C. Circuits,” determined that “the fair balance requirement of § 5(b)(2) is justiciable.” 

Colo. Env’t Coal. v. Wenker, 353 F.3d 1221, 1232–33 (10th Cir. 2004). Although Wenker 

concerned a similar provision with “a more precise standard” than FACA, the court said FACA 

also provided “law to apply” even though it required “ill-defined weighing of interests.” Id. at 

1233. Finally, while the Eleventh Circuit has not directly addressed the justiciability of the “fair 

balance” requirement, it has strongly suggested that the requirement is justiciable by upholding a 

district court’s injunction imposed to remedy violations of § 5(b)(2). See Alabama-Tombigbee 

Rivers Coal. v. Dep’t of Interior, 26 F.3d 1103, 1104 (11th Cir. 1994). 

Only the Ninth Circuit, departing from its sister circuits, has found the “fair balance” 

requirement non-reviewable—but then only in particular circumstances. See Ctr. for Pol’y 

Analysis on Trade & Health v. Office of U.S. Trade Representative, 540 F.3d 940, 945–46 (9th 

Cir. 2008). Citing Judge Silberman’s concurrence in Microbiological, the Ninth Circuit held 

that, in the context of a committee created under the Trade Act of 1974, FACA is “devoid of 

standards suggesting what Congress intended when it required all advisory committees to be 

‘fairly balanced.’” Id. at 945. But that holding was decidedly “narrow” and limited to Trade Act 
27 

committees. Id. at 947. The panel emphasized that its conclusion “do[es] not suggest that 

FACA’s ‘fairly balanced’ requirement is non-reviewable in every circumstance.” Id. This Court 

does not think that such a context-specific and tentative decision, especially when read in light of 

D.C. Circuit precedent and that of every other Circuit, should dictate the conclusion here. 

Thus, consistent with the panel in Microbiological, the Court concludes that FACA’s fair 

balance provision is justiciable. 

B. Inappropriate Influence 

For similar reasons as with the fair balance provision, the Court concludes that FACA’s 

inappropriate influence provision is justiciable—though LDF does not seek summary judgment 

on this claim now. FACA requires that the directive establishing an advisory committee must 

“contain appropriate provisions to assure that the advice and recommendations of the advisory 

committee will not be inappropriately influenced by the appointing authority or by any special 

interest, but will instead be the result of the advisory committee’s independent judgment.” 

5 U.S.C. app. § 5(b)(3). The government contends this provision is nonjusticiable, again relying 

on Judge Silberman’s concurrence in Microbiological. There, Judge Silberman stated that 

FACA provides no guidance as to “when an interest is ‘special’ as opposed to ‘general[,]’” or 

“when its influence is “inappropriate[.]’” Microbiological, 886 F.2d at 430 (Silberman, J., 

concurring). Just as with the fair balance provision, the other two judges disagreed. Although 

Judge Edwards focused on the fair balance provision, he stated as a general matter that “claims 

under section 5 of FACA” are justiciable—and the inappropriate influence provision is in section 

5. Id. at 433 (Edwards, J., concurring in part and dissenting in part). And Judge Friedman, as 

with the fair balance provision, reached the merits of whether the committee was inappropriately 

influenced—thus necessarily deeming the provision justiciable (again, because he judged it). 
28 

See id. at 426 (Friedman, J., concurring in the judgment) (concluding that “appellants have not 

shown that the original Committee was dominated or ‘inappropriately influenced’ by food 

industry representatives”). 

Two of the three other Circuits to consider whether the inappropriate influence provision 

is justiciable have agreed with the Microbiological majority. The First Circuit squarely held that 

the inappropriate influence provision (along with the fair balance provision) is justiciable, 

explaining that courts can “enforce at least the outer boundaries of ranges of this type” because 

the concept of “influence” is not “foreign to courts.” Union of Concerned Scientists, 954 F.3d at 

18–19. And the Fifth Circuit in Cargill stated that it would “follow the Microbiological majority 

and hold that § 5’s inappropriate-influence prohibition is justiciable.” 173 F.3d at 339 n.30. The 

Tenth Circuit has disagreed, finding the fair balance provision justiciable, but the inappropriate 

influence requirement nonjusticiable. Wenker, 353 F.3d at 1231. 

Even leaving aside Microbiological and the weight of authority from other Circuits, the 

court concludes that the inappropriate influence provision offers a meaningful standard for 

review. Under § 5(b)(3), the directive establishing an advisory committee “shall” “contain 

appropriate provisions to assure that the advice and recommendations of the advisory committee 

will not be inappropriately influenced by the appointing authority or by any special interest.” 5 

U.S.C. app. 2 § 5(b)(3), (c). Although the terms “special interest” and “inappropriate influence” 

are imprecise, the statute’s use of “shall” suggests the provision is justiciable—just as with 

§ 5(b)(2). See Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 400 (2008) (“Congress’ use of the 

term ‘shall’ indicates an intent to ‘impose discretionless obligations.’” (quoting Lopez v. Davis, 

531 U.S. 230, 241 (2001))). At a minimum, courts can review “whether [an] agency had 

established any provisions relating to the decisional independence of an advisory committee.” 
29 

Nat. Res. Def. Council, 410 F. Supp. 3d at 607; see also Mach Mining, 135 S. Ct. at 1652. 

Moreover, courts routinely apply statutes that require “appropriate” conduct. See, e.g., Michigan 

v. EPA, 575 U.S. 743, 752–53 (2015) (recognizing that the word “appropriate” was a “classic 

broad and all-encompassing term that . . . includes consideration of all the relevant factors” and 

holding that a regulation was not “appropriate” (internal quotation marks and citation omitted)). 

Finally, as explained above, FACA’s purpose was to ensure Executive Branch accountability in 

order to prevent wasteful expenditures resulting in biased proposals. It is thus highly unlikely 

that Congress intended to wholly preclude judicial review of the requirement to guard against 

inappropriate influence. 

Therefore, the Court concludes that FACA’s inappropriate influence provision is also 

justiciable. 

III. The Commission Is Subject To FACA 

The government contends that the Commission is exempt from FACA under section 

1534(b) of UMRA, which excludes certain intergovernmental communications from FACA’s 

reach. See Defs.’ Opp’n at 18–26. It is undisputed that, absent UMRA, there would be no 

question that the Commission is subject to FACA. The Commission has sufficient structure and 

formality to constitute an advisory committee, was “established” by Attorney General Barr, and 

does not fall within FACA’s two statutory exclusions.5 See Pl.’s Br. at 8–10; Defs.’ Opp’n at 

18–19. 

The UMRA exemption is designed to facilitate “input in the development of regulatory 

proposals containing significant Federal intergovernmental mandates” by state, local, and tribal 

5

 FACA’s definition of “advisory committee” excludes “any committee that is composed wholly of fulltime, or permanent part-time, officers or employees of the Federal Government” or that is “created by the National 

Academy of Sciences or the National Academy of Public Administration.” 5 U.S.C. app. 2 § 3(2). Neither is true 

here. 
30 

governments. 2 U.S.C. § 1534. To this end, intergovernmental communications are exempt 

from FACA if (1) “meetings are held exclusively between Federal officials and elected officers 

of State, local, and tribal governments (or their designated employees with authority to act on 

their behalf) acting in their official capacities”; and (2) “such meetings are solely for the purpose 

of exchanging views, information, or advice relating to the management or implementation of 

Federal programs established pursuant to public law that explicitly or inherently share 

intergovernmental responsibilities or administration.” Id. § 1534(b). Despite the government’s 

contentions, the Court concludes that the Commission’s meetings do not satisfy either part of this 

test. 

A. The Commission’s Meetings Are Not Solely For The Purpose Of Managing 

Intergovernmental Programs 

The Commission clearly fails the second prong of the UMRA exemption. To be exempt 

from FACA, meetings must be “solely” for the purpose of exchanging “views, information, or 

advice relating to the management or implementation of” a particular category of “established” 

federal programs. Id. § 1534(b)(2). Because UMRA uses “established” as a past participle, 

those programs must already have been “established.” See id. And they must have been 

established “pursuant to public law,” meaning federal legislation “approved in each chamber [of 

Congress] and signed by the President.” Mass. Credit Union Share Ins. Corp. v. Nat’l Credit 

Union Admin., 693 F. Supp. 1225, 1231 (D.D.C. 1988). Finally, the federal programs must 

“explicitly or inherently share intergovernmental responsibilities or administration.” 2 U.S.C. 

§ 1534(b)(2). 

Here, the purpose of the Commission is not solely to exchange information about the 

management of existing federal programs established by legislation. Rather, the purpose of the 

Commission is much broader: to “study issues related to law enforcement and the administration 
31 

of justice and make recommendations to the Attorney General, who shall submit a report and 

recommendations to the President on actions that can be taken to prevent, reduce, and control 

crime, increase respect for the law, and assist victims.” Exec. Order No. 13,896, 84 Fed. Reg. at 

58,596–97, § 3(a). The Commission “sets out to conduct a modern fresh evaluation of the salient 

issues affecting American law enforcement and the communities they protect,” not just to 

manage existing programs. See Implementation Memo at 1 (emphasis added). Accordingly, the 

Commission’s working groups study a wide array of subjects from “Respect for Law 

Enforcement” to “Business & Community Development.” Id. at 5–6. And its meetings have 

included discussions unrelated to the implementation of existing federal programs, such as 

potential changes in federal and state law that could only be accomplished through legislation, 

local policy changes, and actions to be taken by the private sector.6 See Pl.’s Br. at 16 

(collecting examples). 

The government argues that the UMRA exemption is so broad that “the Commission’s 

meetings satisfy this requirement, because their purpose is specifically to exchange views on law 

enforcement and the administration of justice—which are the subject of a great number of 

Federal programs established pursuant to public law and over which Federal, State, local, and 

tribal authorities have shared responsibilities.” See Defs.’ Reply at 18. For instance, the DOJ is 

authorized to provide federal grants to state and local law enforcement through the Office of 

Justice Programs (“OJP”), and these grants support a wide range of initiatives related to crime 

reduction, policing, and public safety. See 34 U.S.C. § 10110(1). But the government does not 

claim that the sole purpose of the Commission’s meetings is to discuss the implementation and 

6

 It is not the case that “every single statement or question uttered at an intergovernmental meeting must be 

strictly on-topic in order for the UMRA exemption to apply.” See Defs.’ Opp’n at 26. But the fact that 

Commissioners engaged in many extended discussions unrelated to the management of federal programs vitiates any 

claim that the sole purpose of those meetings was managing and implementing established federal programs. 
32 

management of particular OJP grants. Rather, the government says, the “nexus between the 

purposes of the Commission and the management of Federal programs” is “more than sufficient 

to meet the requirements of § 1534(b)(2).” See Defs.’ Opp’n at 25. 

This reading of the UMRA exemption fails because it has no limiting principle. It simply 

cannot be true that all “views” on the vast subject of law enforcement and the administration of 

justice “relat[e] to” the “management or implementation of Federal programs established 

pursuant to public law that . . . share intergovernmental responsibilities” simply because law 

enforcement is the subject of some such programs. Nearly every broad area of policy is the 

subject of federal programs established by legislation over which federal, state, local, and tribal 

governments have shared responsibilities. As LDF notes, a “construction of § 1534(b)(2) broad 

enough to cover any issue with a federal nexus would apply to almost any meeting topic.” See 

Pl.’s Opp’n at 26. Not just law enforcement, but also education, health care, housing, 

transportation, agriculture, and energy would fit the bill—to name just a few. By the 

government’s logic, meetings about any facet of one of these topics would be exempt from 

FACA, regardless of whether the meetings are about management of particular federal programs. 

But these are precisely the sort of advisory groups Congress currently regulates through FACA. 

See All Agency Accounts, FACA Database, 

www.facadatabase.gov/FACA/apex/FACAPublicAgencyNavigation (listing approximately 

1,000 advisory committees on topics such as “Safe and Drug-Free Schools,” “Mental Health,” 

“Travel and Tourism Infrastructure,” and “Electricity”) (last accessed September 30, 2020). 

Thus, as LDF points out, adopting the government’s reading would “stretch the 

exemption to near-universality, carving a far larger gap in FACA’s coverage than § 1534(b)(2)’s 

text supports.” See Pl.’s Opp’n at 26. As a result, § 1534(b)(2) would do no work within the 
33 

UMRA exemption because virtually every committee that satisfied § 1534(b)(1) would be 

exempt from FACA. Thus, § 1534(b)(2) would be rendered “insignificant, if not wholly 

superfluous,” contrary to the “cardinal principle of statutory construction” that “no clause, 

sentence, or word shall be superfluous, void, or insignificant.” See Duncan v. Walker, 533 U.S. 

167, 174 (2001) (quotation omitted). 

Statutory interpretation “begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 

(2016). As the Supreme Court recently reiterated, judges may not “add to, remodel, update, or 

detract from old statutory terms inspired only by extratextual sources and [their] own 

imaginations.” Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020). Courts “cannot 

replace the actual text with speculation as to Congress’ intent.” Magwood v. Patterson, 561 U.S. 

320, 334 (2010). Thus, “when the meaning of the statute’s terms is plain,” this Court’s “job is at 

an end.” Bostock, 140 S. Ct. at 1749. 

But to defend its broad reading of § 1534(b)(2), the government looks beyond the 

statutory text. First, it cites Office of Management and Budget (“OMB”) guidelines that the 

exemption should be “construed broadly to include any meetings called for any purpose relating 

to intergovernmental responsibilities or administration,” 60 Fed. Reg. 50,651 at 50,653 (1995), 

as well as a case that relied on those guidelines to call the exemption “sweeping in scope,” 

Wyoming Sawmills, Inc. v. U.S. Forest Service, 179 F. Supp. 2d 1279, 1305 (D. Wyo. 2001). 

Wyoming Sawmills, however, wrongly accorded the OMB guidelines Chevron deference. See 

179 F. Supp. 2d at 1304–05. Because the OMB guidelines lack the force of law, they are not 

entitled to deference. See United States v. Mead Corp., 533 U.S. 218, 234 (2001); 2 U.S.C. 

§ 1534(c). Indeed, the government does not ask this Court to accord the guidelines Chevron 
34 

deference. See Defs.’ Reply at 23. As a result, the Court is not persuaded by Wyoming 

Sawmills’s broad interpretation of the exemption. 

The government next argues that the OMB guidelines’ instruction aligns with legislative 

intent because UMRA aimed to “improve[] communications with State, local, and tribal 

governments” by requiring “Federal agencies to establish effective mechanisms for soliciting and 

integrating the input of such interests into the Federal decision-making process.” H.R. Rep. No. 

104-76, at 40; see also Defs.’ Reply at 19. Certainly, UMRA aimed to facilitate 

intergovernmental communications. But that does not mean the UMRA exemption was intended 

to sweep in meetings that fall outside its statutory text, swallowing FACA almost entirely. 

Rather, the exemption merely “clarifies Congressional intent” about “the extent to which elected 

officials of State, local, and tribal governments, or their designated employees with authority to 

act on their behalf, may meet with Federal agency representatives to discuss regulatory and other 

issues involving areas of shared responsibility” without triggering FACA. H.R. Rep. No. 104-

76, at 40. 

Finally, the government contends that a broad interpretation of the UMRA exemption is 

consistent with courts’ reluctance to apply FACA liberally. See Defs.’ Reply at 19. In Public 

Citizen, the Supreme Court said that a “literalistic reading” of FACA’s requirement that a 

committee be “utilized” by the President would extend FACA “to any group of two or more 

persons, or at least any formal organization, from which the President . . . seeks advice”—and 

thus “catch far more groups and consulting arrangements than Congress could conceivably have 

intended.” 491 U.S. at 452, 464. As the Court put it, Congress could not have intended “to 

require the filing of a charter, the presence of a controlling federal official, and detailed minutes” 

whenever “the President seeks the views of the National Association for the Advancement of 
35 

Colored People (NAACP) before nominating Commissioners to the Equal Employment 

Opportunity Commission, or asks the leaders of an American Legion Post he is visiting for the 

organization’s opinion on some aspect of military policy.” Id. at 453. But Public Citizen 

predates UMRA and concerns only the meaning of the word “utilized” in FACA, not whether 

FACA, in its entirety, should be narrowly construed.7 And unlike the external organizations 

used as examples in Public Citizen and the American Bar Association committee at issue there, 

here the Commission was created by the Attorney General for the sole purpose of providing 

recommendations to the President. As the D.C. Circuit has explained, Public Citizen warned 

against “reading FACA to cover every instance when the President (or an agency) informally 

seeks advice from two or more private citizens,” Ass’n of Am. Physicians & Surgeons, Inc. v. 

Clinton, 997 F.2d 898, 915 (D.C. Cir. 1993), but certainly not against reading FACA to cover 

formal, structured commissions created by an agency—like the Commission here. 

Therefore, the Court concludes that the Commission’s meetings do not satisfy the second 

prong of the UMRA exemption, and thus the Commission is subject to FACA. 

B. The Commission’s Meetings Are Not Held Exclusively Between Covered 

Officials 

The Commission also fails the first prong of the UMRA exemption, which requires that 

“meetings are held exclusively between Federal officials and elected officers of State, local, and 

tribal governments (or their designated employees with authority to act on their behalf) acting in 

their official capacities.” See 2 U.S.C. § 1534(b)(1). It is undisputed that people who are neither 

federal officials, elected state, local, or tribal officers, nor designated employees have given 

7 Additionally, Public Citizen did not actually reject the “literalistic reading” of FACA’s utilization 

requirement, instead refusing to apply FACA on separation-of-powers grounds unique to that case. See 491 U.S. at 

465 (“Weighing the deliberately inclusive statutory language against other evidence of congressional intent, it seems 

to us a close question whether FACA should be construed to apply to the ABA Committee, although on the whole 

we are fairly confident it should not.”). 
36 

testimony, answered questions, and otherwise participated in nearly all the Commission’s 

meetings. See Pl.’s Br. at 12–14 (noting that participants included, among many others, the CEO 

of the National Association of Drug Court Professionals, the Vice President of the National 

White Collar Crime Center, a Principal of Health Management Associates, and the President of 

CityGate Network); Defs.’ Opp’n at 20. LDF argues that “these admissions alone end the 

inquiry into the UMRA’s applicability” because “exclusively between” means no one other than 

covered officials may participate in meetings. See Pl.’s Opp’n at 17–18. The government 

counters that the Commission’s “meetings were still ‘exclusively between’ officials covered by 

§ 1534(b)(1), because the Commission’s membership consists exclusively of those types of 

covered officials.”8 Defs.’ Opp’n at 20 (emphasis added). 

Both interpretations of § 1534(b)(1) are extreme. In LDF’s reading, soliciting input from 

a single third party at a single meeting would subject an otherwise exempt committee to FACA’s 

requirements—even if that committee had held many other meetings consistent with 

§ 1534(b)(1). In the government’s view, any meeting convened by a committee is “held 

exclusively between” its members, even if hundreds of invited third parties regularly provide 

lengthy testimony and engage in colloquies with committee members. The Court adopts neither 

interpretation fully, but merely concludes that, on the facts here, it is clear that the Commission’s 

meetings have not been held exclusively between covered officials. Perhaps a one-off 

presentation by a third party would be acceptable, but here more than twenty non-covered 

participants9 have given testimony at meetings, and many have asked and answered questions. 

8

 All eighteen Commissioners are either federal officials, elected state or local officials, or are explicitly 

listed as serving “[p]ursuant to designation by” a particular governor or mayor. Implementation Memo at 3–4. 

9

 Most of the non-covered participants are leaders of private businesses and non-profit organizations. See 

Am. Compl. ¶¶ 143–53. 
37 

See Am. Compl. ¶¶ 143–53. Such participation has occurred at nearly every meeting of the 

Commission. Id. 

The Court is not persuaded by the government’s argument by analogy that “a meeting of 

a congressional committee remains exclusively between its members, even if non-members are 

allowed to attend or testify,” and “a city-council meeting is still exclusively a city-council 

meeting, even if citizens are allowed to provide their input.” Defs.’ Reply at 14; see Defs.’ 

Opp’n at 20. The government has not pointed the Court to any legal source stating that such a 

meeting is “held exclusively between” the members of the congressional committee or city 

council, and indeed the Court doubts that it would be. Nor, as far as the Court is aware, do 

congressional committees or city councils have analogous laws requiring their meetings to be 

“held exclusively between” congresspeople or city councilmembers. If there were such a law, 

then third-party experts could not testify or ask questions without violating that law. Likewise 

here, the Commission may invite experts to testify at hearings, but then it is ineligible for the 

UMRA exemption and must comply with FACA. This argument, then, does nothing at all for 

the government’s position. 

The government also invokes FACA’s implementing regulations, which state that “[a]ny 

committee composed wholly of” covered officials that satisfies § 1534(b)(1) is not covered by 

FACA. See Defs.’ Opp’n at 4–5 (emphasis added) (quoting 41 C.F.R. § 102–3.40(g)). Closer 

inspection reveals that the use of “composed” there is likely the result of imprecise drafting. The 

regulation directs readers back to the OMB guidelines, which say: “This exemption applies to 

meetings between” covered officials. 60 Fed. Reg. at 50,653 (emphasis added). Regardless, this 

regulation cannot override UMRA’s statutory text. Congress could have drafted the UMRA 

exemption to depend on committee composition, as the government would have it, by copying 
38 

the language in FACA’s internal exemption for “any committee that is composed wholly of fulltime, or permanent part-time, officers or employees of the Federal Government.” See 5 U.S.C. 

app. 2 § 3(2). That “federal exclusion” turns on committee membership, not meeting 

participation. See In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005).10 But Congress did no such 

thing. The fact that Congress used different language in the UMRA exemption suggests 

“differences in meaning,” especially because “Congress passed both statutes to handle much the 

same task” of excluding some advisory committees from FACA. See Wisconsin Cent. Ltd. v. 

United States, 138 S. Ct. 2067, 2071 (2018) (quotation omitted). 

Next, the government claims that the two (out-of-circuit) decisions interpreting 

§ 1534(b)(1) focus on membership, not meeting participation. See Defs.’ Opp’n at 21–24. The 

Court does not rely on these cases, but if anything, they support LDF’s position. Idaho Wool 

Growers Assoc. v. Schafer, 637 F. Supp. 2d 868 (D. Idaho 2009), held that two committees were 

not exempt under UMRA because “it cannot be said that the state officials in attendance during 

the Committees’ meetings were either elected themselves, or designated to act on elected 

officials’ behalf,” id. at 875–76 (emphasis added).11 One of the committees was also not exempt 

due to “the inclusion of” a foreign ministry in the committee. Id. at 876. And in Miccosukee 

10 The government claims that In re Cheney supports its position because “[j]ust as an outsider’s presence 

at a meeting does not make that person a member of a committee, mere testimony solicited [] from a witness by 

committee members does not make a meeting ‘between’ the witness and the members.” See Defs.’ Reply at 15. 

The Court is not persuaded. In re Cheney held that “a committee is composed wholly of federal officials if the 

President has given no one other than a federal official a vote” because “Congress could not have meant that 

participation in committee meetings or activities ... would be enough to make someone a member.” See 406 F.3d at 

728. But the fact that committee membership turns on formal voting power instead of participation does not prove 

that whom “meetings are held exclusively between” turns on membership in the body that convened the meetings 

rather than participation in the meetings. 

11 Most of the non-elected state officials in attendance were members of the committees. However, the 

Wildlife Director of the Nez Perce Tribe was not a member, but attended the meeting of one of the committees and 

provided input. See IWGA’s Statement of Material Facts Not in Dispute [ECF No. 23-1] ¶ 3–4. In assessing 

whether the non-federal officials in attendance were covered officials, the court said, “it is undisputed that nonfederal wildlife professionals from the Oregon Department of Fish and Wildlife and the Idaho Department of Fish 

and Game, in addition to the Wildlife Director of the Nez Perce Tribe, were in attendance.” 637 F. Supp. 2d at 876 

n.8. This suggests that whom the meeting was “between” depended in part on whether a non-member meeting 

participant (the Wildlife Director of the Nez Perce Tribe) was a covered official. 
39 

Tribe of Indians of Fla. v. United States, No. 08-21747-CIV, 2008 WL 11332079 (S.D. Fla. Sept. 

26, 2008), the defendant did not “demonstrate that the UMRA exception applies, for the exact 

identities of the participants [were] not divulged.” Id. at *3 n.2 (emphasis added). But the court 

did not clarify whether the UMRA exemption hinged on meeting participants or committee 

participants, or even whether there were any non-member meeting participants in that case. 

Neither case, then, supports the government’s focus on commission composition rather than 

meeting participation, and the statutory text is of course focused on the latter. 

Finally, other federal agencies have limited non-member participation in 

intergovernmental meetings in order to come within UMRA, lending further support to LDF’s 

position. For example, in a “Frequently Asked Questions” portion of its website, the Department 

of Health and Human Services (“HHS”) states that members of the public who attend meetings 

of a federal-tribal intergovernmental committee may “not participate in any way . . . because the 

purpose of the UMRA exemption is to facilitate consultations exclusively between federal 

officials and elected tribal officials” or designees. Committee members may bring a “technical 

advisor” to provide “non-disruptive” private counsel, but technical advisors “are not allowed 

to . . . speak to other members during the meeting.”12 

Therefore, although the Court does not fully endorse either party’s reading of 2 U.S.C. 

§ 1534(b)(1), it is clear here that the Commission’s meetings have not been held exclusively 

between covered officials, and hence the Commission is subject to FACA because the first prong 

of the UMRA exemption is not satisfied. 

12 Dep’t of Health & Hum. Servs., The Federal Advisory Committee Act and the UMRA Section 204 

Exemption: Department of Health and Human Services (HHS) Frequently Asked Questions 4, 

https://www.cdc.gov/tribal/documents/tac/HHS-UMRA-FACA-EXEMPT-GROUP-FAQs-508.pdf (last updated 

Mar. 11, 2019). 
40 

IV. The Commission Violates FACA 

The government does not contest that if FACA applies, and its threshold challenges fail, 

then the Commission has violated FACA. There is no genuine dispute that the government has 

violated FACA’s transparency and public access requirements by holding closed hearings 

without timely notice in the Federal Register. See 5 U.S.C. app. 2 § 10(a)(2); Am. Compl. 

¶¶ 194–201. And there is likewise no genuine dispute that the Commission has violated FACA’s 

oversight provisions by failing to file a charter for the Commission, 5 U.S.C. app. 2 § 9(c), and 

that Attorney General Barr has violated FACA by failing to assign a designated federal officer to 

the Commission to ensure compliance with FACA, id. § 10(e). See Am. Compl. ¶¶ 186, 209–10, 

223. 

Moreover, there is no dispute that the Commission is not “fairly balanced.” The 

government does not attempt to prove or even argue it is, only that FACA’s “fair balance” 

provision is not justiciable. FACA requires an advisory committee’s membership to be “fairly 

balanced in terms of the points of view represented and the functions to be performed by the 

advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). In selecting committee members, the 

appointing authority should “consider a cross-section of those directly affected, interested, and 

qualified, as appropriate to the nature and functions of the advisory committee.” 41 C.F.R. 

§ 102-3.60(b)(3). Among other factors, the appointing authority should consider the advisory 

committee’s mission, the ethnic, social, and economic impact of the committee’s 

recommendations, the “types of specific perspectives required,” and the “need to obtain 

divergent points of view on the issues before the advisory committee.” 41 C.F.R. § 102-3, subpt. 

B, app. A. 
41 

The Commission is “a deliberative body tasked with improving American policing.” 

Implementation Memo at 2. Its function is to “study issues related to law enforcement and the 

administration of justice and make recommendations to the Attorney General, who shall submit a 

report and recommendations to the President on actions that can be taken to prevent, reduce, and 

control crime, increase respect for the law, and assist victims.” Id. at 1 (quoting Exec. Order No. 

13,896, 84 Fed. Reg. at 58,596–97, § 3(a)). The Commission studies “salient issues affecting 

American law enforcement and the communities they protect.” Id. 

LDF and other civil rights organizations are “directly affected, interested, and qualified” 

with respect to the Commission’s function of improving policing. See 41 C.F.R. § 102-

3.60(b)(3). LDF has worked in the area of policing reform for several decades. See Dixon Decl. 

¶ 3. But the Commission includes no members from civil rights groups like LDF. Nor does it 

include any criminal defense attorney, academic, civic leader, or representative of a community 

organization or social service organization. Instead, all eighteen Commissioners are current or 

former law enforcement. See Am. Compl. ¶¶ 43–60; Implementation Memo at 3–4. This is 

precisely the type of imbalance that FACA sought to prevent. In introducing the Senate debate 

on the bill, a Senator explained that “the most important provision here is the one which requires 

fair representation of different points of view upon any advisory commission, so that they will 

not all be educators on committees in the Department of Education and will not be all scientists, 

physicians, or medical men on commissions relating to the Institutes of Health.” See 

Microbiological, 886 F.2d at 437 (Edwards, J., concurring in part and dissenting in part) (quoting 

118 Cong. Rec. 16,296 (1972)). Similarly here, FACA aimed to ensure there would not be all 

law enforcement officials on a DOJ commission studying the broad subject of policing in 

America. 
42 

To be sure, “the difficulty of determining what precisely constitutes a ‘fair balance’ may 

incline courts to be deferential in reviewing the composition of advisory committees and may 

defeat a plaintiff’s claims in a given case.” Microbiological, 886 F.2d at 434 (Edwards, J., 

concurring in part and dissenting in part). But, certainly, this is not such a case. The 

Commission’s function is to improve policing, including relations between law enforcement and 

the communities they protect. Yet the Commission does not include a single member who 

represents elements of those communities, rather than law enforcement. Thus, even employing a 

deferential review, the Court concludes that the Commission’s membership is not “fairly 

balanced in terms of the points of view represented and the functions to be performed by the 

advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). Indeed, the Court is hard pressed to think of a 

starker example of non-compliance with FACA’s fair balance requirement than a commission 

charged with examining broad issues of policing in today’s America that is composed entirely of 

past and present law enforcement officials. 

V. Relief 

LDF is entitled to relief for the Commission’s FACA violations. As the government 

concedes, the APA is an appropriate vehicle for LDF’s claims against Attorney General Barr and 

the DOJ. See Defs.’ Opp’n at 27. As for LDF’s claims against non-agency defendants, 

mandamus relief is the appropriate vehicle. The party seeking mandamus has the burden of 

showing “(1) a clear and indisputable right to relief, (2) that the government agency or official is 

violating a clear duty to act, and (3) that no adequate alternative remedy exists.” Am. Hosp. 

Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). 

LDF has met all three requirements. The Commission has a duty to comply with FACA 

and has failed to do so. Mandamus is the only vehicle for LDF’s claims against defendants 
43 

Keith, Sullivan, and the Commission because an advisory committee is not an agency subject to 

the APA and FACA provides no private right of action. See Freedom Watch, Inc. v. Obama, 807 

F. Supp. 2d 28, 33, 37 (D.D.C. 2011). The government’s only argument for why LDF has not 

established a “clear and indisputable right to relief” is that most of LDF’s claims have “threshold 

defects” and “the Commission is exempt from FACA’s requirements.” See Defs.’ Reply at 21. 

Because the government’s threshold and exemption arguments fail, so does its challenge to 

mandamus relief. 

LDF is thus entitled to writs of mandamus compelling defendants Keith, Sullivan, and the 

Commission to file a charter with the necessary entities as required by 5 U.S.C. app. 2 § 9(c) and 

to provide timely notice of its meetings going forward as required by 5 U.S.C. app. 2 § 10(a)(2). 

LDF is also entitled to injunctive relief requiring defendant Barr to appoint a designated federal 

officer as required by 5 U.S.C. app. 2 § 10(e) and 41 C.F.R. § 102-3.120. Further, LDF is 

entitled to injunctive relief requiring defendant Barr to ensure the Commission has a fairly 

balanced membership. The Court will order the parties to submit briefing on proposed remedial 

orders to determine the precise content of that injunction and any other relief. In the meantime, 

the Court will order that Commission proceedings be halted and that defendants may not submit, 

publish, or rely on any report or recommendations produced by the Commission until the 

requirements of FACA are satisfied. 

The Court will not, at this time, grant LDF’s request to “permanently enjoin” the 

Commission from conducting any business and defendants Barr, DOJ, and the Commission from 

“submitting, accepting, publishing, employing, or relying upon any report or 

recommendations”—in other words, for a “use injunction.” See Am. Compl. Prayer for Relief 

¶¶ d–e. “Because of its First Amendment implications, punitive effect and likely standing 
44 

complications, a use injunction should be the remedy of last resort.” See Nat. Res. Def. Council 

v. Pena, 147 F.3d 1012, 1025 (D.C. Cir. 1998). And without the benefit of briefing on proposed 

remedial orders, the Court cannot determine that “denial of a use injunction would ‘render 

FACA a nullity.’” See id. at 1026 (quoting Cal. Forestry Ass’n v. U.S. Forest Serv., 102 F.3d 

609, 614 (D.C. Cir. 1996)). 

A use injunction might still be appropriate, but only if “FACA’s principal purposes—(1) 

avoidance of wasteful expenditures and (2) public accountability—will be served by granting a 

use injunction.” Id. at 1026. A use injunction granted when (as might be the case here) “a 

committee has completed its meetings and is in the process of wrapping up its affairs will likely 

produce waste,” but the Court must also “consider the magnitude of the waste, the value of the 

committee’s work to the sponsoring federal agency and the effect of the FACA violation on the 

committee’s findings.” Id. And the Court acknowledges that a use injunction, in some 

circumstances, could exceed the injury claimed or be inconsistent with separation-of-powers 

principles. See Nw. Forest Res. Council, 846 F. Supp. at 1015 (declining to grant a use 

injunction but granting declaratory relief); see also Nw. Ecosystem All., 1999 WL 33526001, at 

*8 (declining to grant a use injunction based on “the balance of hardships” but ordering 

defendants to “make a good faith effort to expedite the appointment of at least one properly 

qualified environmental representative” to the committee); but see, e.g., W. Org. of Res. 

Councils v. Bernhardt, 412 F. Supp. 3d 1227, 1244 (D. Mont. 2019) (“Further use of or reliance 

on the Royalty Committee’s recommendations is ENJOINED.”); Idaho Wool Growers, 637 F. 

Supp. 2d at 880 (ordering that the “Committees’ findings and/or conclusions are not to be relied 

upon by the Forest Service with respect to any future agency decisions”).13 

13 Another possibility is a limited use injunction. For instance, a judge in this District has enjoined an 

agency from using the reports of disputed committees “without a disclaimer stating that the committees had been 
45 

LDF also seeks relief under the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201. 

Am Compl. ¶ 217–26; Am. Compl. Prayer for Relief ¶¶ a–c. Under the DJA, the Court “may 

declare the rights and other legal relations of any interested party seeking such declaration.” 28 

U.S.C. § 2201(a). This statute “is not an independent source of federal jurisdiction”; rather, “the 

availability of such relief presupposes the existence of a judicially remediable right.” Schilling 

v. Rogers, 363 U.S. 666, 677 (1960). The Court independently has jurisdiction here under the 

mandamus statute, 28 U.S.C. § 1361, and the APA, 5 U.S.C. § 706, and LDF has a judicially 

remediable right to have the Commission comply with its duties under FACA. LDF is thus 

entitled to a declaratory judgment that the Commission is an advisory committee subject to the 

requirements of FACA, and that defendants have violated FACA by failing to file a charter for 

the Commission with the necessary entities, to provide timely notice of its meetings, to select a 

designated federal officer, and to ensure that the Commission’s membership is fairly balanced. 

CONCLUSION 

For these reasons, the Court will grant plaintiff’s motion for summary judgment and deny 

defendants’ cross-motion to dismiss, or in the alternative, for summary judgment. A separate 

order has been issued on this date. 

 /s/ 

 JOHN D. BATES 

 Senior United States District Judge 

Dated: October 1, 2020 

convened in violation of FACA. The effect of this relief is, in many ways, similar to that of the declaratory relief 

sought. Arguably, the disclaimer would give plaintiffs ‘ammunition’ in the arena of public opinion.” Nat. Res. Def. 

Council v. Abraham, 223 F. Supp. 2d 162, 182–83 (D.D.C. 2002), order set aside in part on other grounds sub 

nom. Nat. Res. Def. Council v. Dep’t of Energy, 353 F.3d 40 (D.C. Cir. 2004).