UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CUMMOCK, M. VICTORIA

v.

GORE, ALBERT


98-5427a

D.C. Cir. 1999


*	*	*


Edwards, Chief Judge: On August 22, 1996, in the after- math of the TWA
Flight 800 air disaster, President Clinton  established the White
House Commission on Aviation Safety  and Security ("Commission"). The
Commission was chaired  by Vice President Gore and included among its
members  appellant M. Victoria Cummock, who was widowed in the  1988
Pan Am Flight 103 crash and has been an active  advocate for improved
safety and security measures ever  since. Cummock dissented from the
Commission's final re- port, which was delivered to the President on
February 12,  1997. Subsequently, she filed this lawsuit, seeking
declarato- ry and injunctive relief against the Government for a host
of  Federal Advisory Committee Act ("FACA") and Administra- tive
Procedure Act ("APA") violations. Cummock alleged  that, due to
various procedural irregularities beginning before  the Commission's
official inception and lasting through its  disbandment six months
later, she was excluded from mean- ingful participation in the


The District Court dismissed Cummock's lawsuit in its  entirety,
finding that she lacked either an enforceable right or  standing with
respect to each of her claims. On appeal, we  find that Cummock raises
only one claim warranting our  consideration: her allegation that the
Commission violated  FACA by denying her access to certain documents
and  information, and thereby compromised her ability to partici- pate
in Commission proceedings and prepare a fully informed  dissent. We
reject the Government's contention that Cum- mock, as a committee
member, possessed only those rights  enjoyed under FACA by members of
the general public.  Like members of the public, Cummock has an
enforceable  right to obtain information pursuant to s 10(b) of FACA. 
However, Cummock also has a right to fully participate in the 


deliberations of the Commission. To hold otherwise would  completely
undermine the stated purposes of FACA. On the  record at hand, we find
that Cummock was unlawfully denied  the opportunity to review
documents that were prepared for  or relied upon by the Commission in
formulating its recom- mendations, and to amend her dissent if
necessary to reflect  this information. Accordingly, we reverse the
decision of the  District Court and remand for further proceedings
consistent  with this opinion.


I. Background


A. Federal Advisory Committee Act


Congress passed FACA, 5 U.S.C. app. 2 ss 1-16, in 1972 to  address
whether and to what extent committees, boards, and  councils should be
maintained to advise Executive Branch  officers and agencies. See 5
U.S.C. app. 2 s 2(a); Public  Citizen v. United States Dep't of
Justice, 491 U.S. 440, 445-46  (1989). "FACA was enacted to cure
specific ills, above all the  wasteful expenditure of public funds for
worthless committee  meetings and biased proposals...." Id. at 453;
accord  Natural Resources Defense Council v. Pena, 147 F.3d 1012, 
1026 (D.C. Cir. 1998) ("NRDC"). Congress recognized that  advisory
committees "are frequently a useful and beneficial  means of
furnishing expert advice, ideas, and diverse opinions  to the Federal
Government." 5 U.S.C. app. 2 s 2(a). How- ever, Congress also feared
the proliferation of costly commit- tees, which were often dominated
by representatives of indus- try and other special interests seeking
to advance their own  agendas. See H.R. Rep. No. 92-1017 (1972),
reprinted in 1972  U.S.C.C.A.N. 3491, 3496 ("One of the great dangers
in the  unregulated use of advisory committees is that special inter-
est groups may use their membership on such bodies to  promote their
private concerns."); see also Public Citizen,  491 U.S. at 453; Food
Chem. News v. Department of Health  and Human Servs., 980 F.2d 1468,
1472 (D.C. Cir. 1993);  Richard O. Levine, Comment, The Federal
Advisory Commit- tee Act, 10 Harv. J. on Legis. 217, 219, 225


In enacting FACA, Congress struck a balance between  these concerns, by
preserving the advisory committee mecha- nism for informing policy
decisions, while ensuring


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 


Public Citizen, 491 U.S. at 446 (citing 5 U.S.C. app. 2 s 2(b)). 
Congress aimed, in short, " 'to control the advisory committee 
process and to open to public scrutiny the manner in which  government
agencies obtain advice from private individuals.' "  National
Anti-Hunger Coalition v. Executive Comm. of the  President's Private
Sector Survey on Cost Control, 711 F.2d  1071, 1072 (D.C. Cir. 1983)
(quoting Food Chem. News, Inc. v.  Davis, 378 F. Supp. 1048, 1051
(D.D.C. 1974)); accord Public  Citizen, 491 U.S. at 459; Animal Legal
Defense Fund, Inc. v.  Shalala, 104 F.3d 424, 426 (D.C. Cir. 1997).


In order to achieve these objectives, Congress enacted in  FACA a
series of requirements governing the creation and  operation of bodies
falling within the Act's definition of "advi- sory committee." See 5
U.S.C. app. 2 s 3(2). For instance,  FACA bars the initiation of new
advisory committees absent  express authorization by statute or the
President, or a formal  determination by an agency that such
establishment would be  in the public interest. See id. s 9(a). In
addition, FACA  mandates that advisory committee membership be "fairly
 balanced in terms of the points of view represented and the 
functions to be performed," and that a committee's advice  reflect its
"independent judgment" without improper influ- ences from the
appointing authority or special interests. Id.  s 5(b)(2), (3).
Moreover, FACA provides that, once estab- lished, an advisory
committee must conform its operations to  various procedural
requirements by, inter alia, filing a char- ter before beginning its


meetings to the public, see id. s 10(a)(1), publishing advance  notice
of its meetings, see id. s 10(a)(2), keeping detailed  minutes of its
meetings, see id. s 10(c), and making available  to the public
records, drafts, studies, and other documents  that were made
available to or prepared by or for the  committee, see id. s 10(b).
The Act also charges the General  Services Administration ("GSA") with
prescribing regulatory  guidelines and management controls applicable
to advisory  committees, and providing such committees with advice and
 assistance to improve their performance. See id. s 7(c).  Finally,
FACA imposes various oversight and reporting re- quirements on
congressional committees, GSA, and the Presi- dent, in order to
monitor advisory committees and ensure  their ongoing usefulness and
productivity. See id. ss 5(a),  6(c), 7(b).


Sometimes dubbed the "fifth branch" of Government, see,  e.g., Mary
Kathryn Palladino, Survey, Ensuring Coverage,  Balance, Openness and
Ethical Conduct for Advisory Com- mittee Members under the Federal
Advisory Committee Act,  5 Admin. L.J. 231, 231 (1991), advisory
committees today  remain a fixture in the Nation's Capital. In fiscal
year 1997,  a total of 36,586 individuals served on 963 committees,
see  U.S. General Accounting Office, Federal Advisory Commit- tee Act:
Advisory Committee Process Appears to Be Working,  but Some Concerns
Exist, GAO/T-GGD-98-163, at 3 (July 14,  1998) (Statement of L. Nye
Stevens), available at , addressing almost all imaginable topics, 
from national policy matters to technical or scientific issues.  See
generally U.S. General Services Administration, Federal  Advisory
Committee Act (FACA) Database, available at  (listing advisory commit-
tees by relevant agency). In other words, to this date, the 
Government continues to draw heavily upon the advisory  committee
process as a part of its political machinery.


B. White House Commission on Aviation Safety and Secu- rity


On July 25, 1996, in the wake of the TWA Flight 800  disaster,
President Clinton announced his intention to form a  committee to
study aviation safety and security issues. The  White House Commission
on Aviation Safety and Security  filed a charter on August 21, 1996,
and was officially estab- lished by Executive Order dated August 22,
1996. See Exec.  Order No. 13,015, 61 Fed. Reg. 43,937 (1996). This
order  charged the Commission with recommending a strategy to  improve
aviation safety and security, both domestically and  internationally.
See id. It provided that the Commission  would be chaired by Vice
President Gore and supported by  the Department of Transportation. See
id. It further pro- vided that the Commission would consist of no more
than  twenty-five members to be appointed by the President from  the
public and private sectors. See id. Finally, it provided  that the
Commission would terminate after six months unless  extended by the


On August 14, 1996, President Clinton invited Cummock,  the widow of a
Pan Am Flight 103 victim and an advocate for  disaster victims and
improved airline safety measures, to join  the Commission. Additional
members included the Vice  President, as noted, as well as former
Central Intelligence  Agency Director John M. Deutch, then Department
of Trans- portation Secretary Federico F. PeNa, retired Air Force 
General John Michael Loh, and other individuals with experi- ence or
expertise in aviation safety and security matters.


Once the Commission was established, it immediately be- gan its work,
which progressed quickly. On August 22, 1996,  the day after the
Commission filed its charter, five Commis- sion members held a meeting
at which Commissioner Loh  presented a document containing draft
recommendations.  The full Commission then held its first executive
session on  September 5, 1996, and on September 9, the Commission 
submitted its initial report to the President, advancing twenty 
recommendations to enhance aviation security. The Commis- sion
continued to meet for several months thereafter, and its 


final report, containing over fifty recommendations, was deliv- ered to
the President on February 12, 1997. The presenta- tion of this report
garnered extensive media attention. See,  e.g., Matthew L. Wald, Panel
to Recommend Steps for Cut- ting Air Crash Rate, N.Y. Times, Feb. 12,
1997, at A1;  Robert Davis, 53 Air-Safety Proposals Come Out Today, 
USA Today, Feb. 12, 1997, at 3A; Ralph Vartabedian &  Elizabeth
Shogren, Tougher Security, Safety Rules for Air- lines Proposed, L.A.
Times, Feb. 13, 1997, at A1; J. Lynn  Lunsford, Panel Urges Changes to
Improve Air Safety, Dal- las Morning News, Feb. 13, 1997, at 6A.
Neither the report  nor the accompanying transmittal letter indicated
the exis- tence of any dissenting views.


Cummock, alone, dissented from the final report. Her  letter of
dissent, dated February 19, 1997, was published with  the printed
version of the final report, which also included an  editor's note
stating as follows:


This edition contains as Appendix I a dissent by Commis- sioner Cummock
which was transmitted to the Commis- sion one week after the report
was voted on in public  session and presented to President Clinton.


During the public session, Commissioner Cummock dis- sented from three
recommendations. The dissent pub- lished in this document goes far
beyond those registered  in public. It presents for the first time
material and  arguments the other Commissioners did not have an 
opportunity to consider. However, many of the argu- ments made in the
dissent were considered and rejected  by the other members of the


White House Commission on Aviation Safety and Security,  Final Report
to President Clinton (Feb. 12, 1997), reprinted  in Appendix ("App.")
38. The final report included only the  narrative portion of Cummock's
dissent and excluded the  supporting materials that accompanied the
dissent. The edi- tor's note to the final report indicated that
interested persons  could obtain the supporting materials by writing
to a specified  address. See id.


C. Cummock's Lawsuit


Several months after the Commission was disbanded, Cum- mock filed suit
in District Court, naming Vice President Gore,  the Secretary of
Transportation, and the Commission as  defendants. Cummock alleged,
inter alia, that the Commis- sion failed to operate in accordance with
FACA and the APA,  thereby violating her right as a member to
participate in the  Commission's work. She claimed that, by a series
of "proce- dural irregularities," she was effectively excluded from
Com- mission proceedings. In her view, the Clinton Administration  had
formed the Commission simply to obtain rubber-stamp  endorsement of a
predetermined policy agenda, rather than  to facilitate genuine
deliberations. See Brief of Appellant at  14-15. Cummock's allegations
fall into four categories, which  we summarize briefly as follows.


First, Cummock argues that the Commission violated  FACA's charter
provision, 5 U.S.C. app. 2 s 9(c), by "tak[ing]  ... action" prior to
the filing of its charter on August 21,  1996. The Commission's
alleged "action" consisted of a trip  led by Vice President Gore to
observe aviation operations at  Dulles Airport, a presentation
regarding Commission activi- ties made by Commissioner Loh at a
meeting of the Federal  Aviation Administration Security Baseline Work
Group, the  preparation of draft recommendations, and various other 
"informational briefings, site visits, and studies" engaged in  by
Commission members before the Commission's official  inception. Brief


Second, Cummock claims that the Commission violated  FACA's notice
provision, 5 U.S.C. app. 2 s 10(a)(2), by failing  to publish timely
notice of its meetings in the Federal Regis- ter. According to
Cummock, notice was never provided fif- teen days in advance of
meetings, as required by 41 C.F.R.  s 101-6.1015(b)(1), and on one
occasion, notice did not appear  until after the meeting had


Third, Cummock contends that the Commission violated  the provision of
FACA requiring the Commission to make  available the records, reports,
and other documents made  available to it in the course of its
deliberations, 5 U.S.C. app. 


2 s 10(b). Cummock points to several instances in which she  allegedly
requested particular information to no avail. For  instance, she asked
for a copy of an inch-thick briefing paper  that she saw Commissioners
Gore and Deutch reviewing, but  subsequently received only four pages
of that document from  the Commission's Staff Director. She also
requested that she  be provided with documents submitted to or
received from  the Air Transport Association ("ATA"), but allegedly
did not  receive all such documents. In addition, when she heard 
mention of a "classified annex," she sought access to those 
materials, but never received them, despite her security  clearance.
Lastly, she requested information on the availabil- ity of protective
breathing equipment for passengers, but  received no documents and was
assured by Commission staff  that no such information was available,
only later to learn  that at least one company had submitted a letter
concerning  its equipment two weeks prior to her request.


Finally, Cummock alleges that the Commission violated the  APA, by
failing to publish her complete dissent and including  a misleading
editor's note with the final report. According to  Cummock, the
Commission did not take up her concerns until  immediately before the
final report was scheduled to be  delivered to the President, thereby
delaying her preparation  of a dissent. Thus, although Vice President
Gore allegedly  told her at a public meeting on the morning of
February 12,  1997 that the Commission would "make available a place
in  the report for the full expression of any dissenting views that 
[she] would like to contribute," Complaint p 40, reprinted in  App.
21, the report was delivered to the President later that  same day
without Cummock's dissent. Subsequently, the  Commission published
only the narrative portion of her dis- sent, without the supporting
materials that she had attached  thereto. In addition, the Commission
included a misleading  editor's note, which inaccurately suggested
that Cummock's  dissent had presented issues that the full Commission
did not  have an opportunity to consider, and had been submitted


Following the Commission's official termination, Cum- mock's attorney
wrote to the Vice President and the Commis-


sion's Staff Director, requesting information relating to the 
publication of the final report, the basis for the editor's note,  and
various aspects of Commission operations. Upon receiv- ing no
response, counsel reiterated this request in another  letter. Although
receipt of these letters was acknowledged  by the Department of
Transportation's Office of General  Counsel, no response was ever


Subsequently, on May 8, 1997, Cummock filed this lawsuit,  alleging
multiple violations of FACA and the APA. As relief,  Cummock sought an
injunction prohibiting the final report  from being published,
distributed, or used without her "com- plete dissent," requiring the
final report to be amended to  correct misstatements in the editor's
note, requiring all Com- mission documents and records to be made
available to  Cummock, requiring that Cummock be given an opportunity 
to amend her dissent, and prohibiting distribution of the final 
report as a FACA advisory committee report. See Complaint  at 27,
reprinted in App. 32. Cummock also sought a declara- tion that "the
Commission has operated in violation of FACA  and GSA implementing
regulations and that the actions taken  by the Commission to date are
ultra vires." Id. at 28,  reprinted in App. 33.


In July 1997, the Government filed a motion to dismiss  Cummock's
complaint for lack of standing or failure to state a  claim upon which
relief can be granted. According to the  Government, Cummock was
subsequently permitted to review  at least some non-classified
Commission documents, and was  given copies of most of the documents
she requested. "Those  documents not produced were determined, upon
initial re- view, to include information that might be exempt from 
disclosure under the Freedom of Information Act [FOIA]."  Brief for
the Appellees at 20-21.


On June 15, 1998, the District Court dismissed all of  Cummock's
claims. See Cummock v. Gore, Civ. No. 97-981  (D.D.C. June 15, 1998)
(Memorandum), reprinted in App. 228.  In sum, the trial court held
that Cummock lacked a judicially  enforceable right to participate in
Commission activities, that  her request for documents was untimely,
and that she lacked 


standing to challenge the Commission's notice of its meetings  as
inadequate. This appeal followed.


II. Analysis


FACA is not new legislation, having been enacted more  than a quarter
of a century ago. There has been considera- ble litigation over the
statute's meaning, so there is a wealth  of case law to guide us in
this case. For example, in recent  years, this court has considered
and decided whether a given  group constitutes an advisory committee
for the purposes of  FACA, see, e.g., Sofamor Danek Group, Inc. v.
Gaus, 61 F.3d  929 (D.C. Cir. 1995), when a member of the public has 
standing to sue under FACA, see, e.g., Byrd v. EPA, No.  98-5180, 1999
WL 252643 (D.C. Cir. April 30, 1999), and what  are the appropriate
remedies for violations of FACA, see, e.g.,  California Forestry Ass'n
v. United States Forest Serv., 102  F.3d 609 (D.C. Cir. 1996).
Although the instant case presents  a unique factual scenario, it is
clear that the issues posed here  are readily resolved by reference to
the terms of the statute,  the supporting legislative history, and
well established prece- dent.


The Government seeks to cast Cummock as essentially a  disgruntled
Commission member, who failed to convince her  fellow Commissioners of
her view and then pursued this  lawsuit as an alternative avenue of
recourse. The District  Court agreed with the Government that Cummock
had no  valid legal claims and dismissed Cummock's complaint in its 
entirety. Our review of the District Court's ruling is de novo,  see
Systems Council EM-3 v. AT&T, 159 F.3d 1376, 1378  (D.C. Cir. 1998).
We reject the Government's self-serving  characterizations. In point
of fact, Cummock has raised a  viable claim under FACA and her lawsuit
was improperly  dismissed. Accordingly, we reverse.


A.


Our first task is to explain what is truly at issue here. In  the
District Court, Cummock alleged a slew of FACA viola- tions and sought
a broad range of injunctive and declaratory 


relief. It is apparent on appeal, however, that Cummock's  position
turns principally on her lack of access to information  relied upon by
the Commission, and her concomitant inability  to prepare an informed
dissent. To be sure, Cummock  continues to argue--at least in her
briefs--that the Commis- sion violated FACA's charter and notice
provisions, as well as  the APA. See Brief of Appellant at 17-20,
35-37. However,  she has also made it quite clear that "[s]he does not
seek to  enjoin use of the report, but only a declaration that FACA 
was violated, and an opportunity to obtain relevant informa- tion and
to modify, correct, and publish her complete dis- sent." Reply Brief
of Appellant at 16. In other words, she  seeks relief solely in
connection with her claim under s 10(b)  of FACA.


Cummock's counsel conceded as much at oral argument,  stating that what
Cummock desires, in a nutshell, is the  opportunity to obtain and
review all documents relied upon by  the Commission in formulating its
recommendations, and to  amend her dissent if necessary to ensure a
complete and fully  informed expression of her objections. Under these
circum- stances, we find that the only claim before us warranting our 
attention is Cummock's assertion that the Commission denied  her
access to relevant documents, and thereby thwarted her  dissenting


Cummock's claim is rooted in s 10(b) of FACA, which  provides as
follows:


Subject to [FOIA], the records, reports, transcripts, min- utes,
appendixes, working papers, drafts, studies, agenda,  or other
documents which were made available to or  prepared for or by each
advisory committee shall be  available for public inspection and
copying at a single  location in the offices of the advisory committee
or the  agency to which the advisory committee reports until the 
advisory committee ceases to exist.


This provision "affirmatively obligates the Government to  provide
access to the identified materials." Food Chem.  News, 980 F.2d at
1472. In other words, the Government  must make such materials
available for public inspection and 


copying, even in the absence of a particular request, unless  "the
agency reasonably claims [the materials] to be exempt  from disclosure
pursuant to FOIA." Id. at 1469. According  to Cummock, the Commission
violated s 10(b) by failing to  make the required information
available to her, even when  she specifically requested it in
connection with her work on  the Commission. She identifies particular
documents to  which she was allegedly entitled (i.e., the inch-thick
briefing  paper, the ATA correspondence, the classified annex, and the
 information on protective breathing equipment), adding that  she "is
unable at this point to say how much she has not  seen." Brief of
Appellant at 22. Cummock argues, in short,  that the Commission's FACA
violations interfered with her  right and responsibility to
participate in its deliberations, and  compromised her ability to


B.


Before proceeding to the merits of Cummock's claim, we  must confirm
our jurisdiction to hear this dispute. See Steel  Co. v. Citizens for
a Better Env't, 118 S. Ct. 1003, 1010 (1998).  In particular, we must
assure ourselves of Cummock's stand- ing to sue for a violation of
FACA based on the Commission's  failure to supply her with the
information required under the  Act. The constitutional standing
requirements are familiar:  Cummock must show that she has suffered a
particularized  injury to a cognizable interest, her injury is fairly
traceable to  the Government's actions, and a favorable judicial
ruling will  likely redress her injury. See Lujan v. Defenders of
Wildlife,  504 U.S. 555, 560-61 (1992).


Cummock readily satisfies the standing requirements in  this case.
First, she suffered an injury under FACA insofar  as the Commission
denied her requests for information that it  was required to produce.
See Public Citizen, 491 U.S. at 449;  Byrd, 1999 WL 252643, at *3.
Second, her injury was  directly caused by the Commission's alleged
violation of  FACA. Finally, her injury is redressable by the relief
she  seeks--namely, access to documents to which she is entitled 
under FACA and an opportunity to amend her dissent to  reflect any
changes stemming from a review of those materi-


als. See NRDC, 147 F.3d at 1023 ("[T]he appellees plainly  have
standing to request injunctive relief directing the [agen- cy] to make
Committee documents and records available to  the full extent
permitted by FACA....").


We turn next to the question of whether Cummock possess- es an
enforceable right under FACA. In the Government's  view, Cummock
possesses no cause of action here. The  Government contends that it
does not matter that Cummock  was a Commission member, because her
claim of entitlement  to documents represents merely an "internal
dispute[ ] among  committee members," for which there are no
meaningful  standards to guide judicial review. Brief for the
Appellees at  15. Thus, the Government argues that Cummock, like any 
member of the public, had only a limited right, while the  Commission
was in existence, to obtain information pursuant  to s 10(b) of FACA.
According to the Government, even  during the course of Commission
deliberations, Cummock had  no right under FACA to obtain documents
that were exempt  from public disclosure under FOIA. Furthermore,
because  the Commission no longer exists, the Government asserts  that
Cummock must seek Commission documents via a prop- erly filed FOIA
request, which the Government "stands ready  to process." Brief for
the Appellees at 20. Under this  scenario, if the Government refuses
to release certain infor- mation, Cummock would then be required to


In short, the Government would have us adopt the broad  principle that
a duly appointed advisory committee member,  who has all necessary
security clearances, has no rights  beyond those enjoyed by the
public-at-large. Under this  view--from which Government counsel
stubbornly refused to  budge at oral argument--advisory committee
membership  accords no real right to participate in committee
proceedings.  Indeed, counsel went so far as to suggest that the
Govern- ment could, without violating FACA, appoint an individual to 
an advisory committee and then wall that individual off from  the
committee's operations, rendering membership essentially  meaningless.
The Government's position is rather astonish- ing, and we reject it.


It would be quite absurd for us to hold that a FACA  advisory
committee--a public deliberative body that is sub- ject to precise
statutory mandates designed to ensure open- ness and fair
deliberations--may simply exclude unpopular  viewpoints from
participation. Yet, according to the Govern- ment, this outcome is
reasonable, because Congress, in draft- ing FACA, said nothing about
committee members obtaining  rights of access beyond those of the
public. We are told that  sanctions short of judicial review will flow
to committees that  operate to exclude particular members: an unhappy
member  can refuse to sign the committee's report, and FACA's sun-
shine provisions will ensure that such irregularities are ex- posed to
the public. In the Government's opinion, however,  appointed committee
members possess no particular rights of  participation, and may even
be denied access to information  underscoring the committee's


We flatly reject the Government's view, for it is simply  untenable in
light of the stated purposes of FACA. In  passing this legislation,
Congress emphasized the need "to  ensure that persons or groups
directly affected by the work  of a particular advisory committee
would have some represen- tation on the committee," National
Anti-Hunger Coalition,  711 F.2d at 1074 n.2, and to protect against
"the risk that  governmental officials would be unduly influenced by
industry  leaders," Public Citizen v. National Advisory Committee on 
Microbiological Criteria for Foods, 886 F.2d 419, 437 (D.C.  Cir.
1989) (Edwards, J., concurring in part and dissenting in  part); see
also Cargill, Inc. v. United States, No. 97-31190,  1999 WL 225205, at
*2 (5th Cir. April 19, 1999) ("FACA is  designed to ensure that
advisory committees are fairly consti- tuted and properly monitored so
that they will provide sound  advice."). These concerns were expressly
embodied in the  provisions of FACA requiring that committee
membership be  fairly balanced in terms of viewpoints and functions,
and that  committees exercise independent judgment free from improp-
er influences. See 5 U.S.C. app. 2 s 5(b)(2), (3). Yet, an 
interpretation of FACA that permitted a given advisory com- mittee to
exclude a disfavored member would fly in the face  of the principle


tee might be nominally balanced, because an individual was  appointed
to represent certain views, but effectively unbal- anced, because that
individual was precluded from meaningful  participation. Moreover,
contrary to the Government's asser- tions at oral argument, FACA's
sunshine provisions, while a  central feature of the Act, are not a
substitute for the Act's  provisions requiring balance and


In Food Chemical News, we found that, in order to give  meaning to
FACA's sunshine provisions, s 10(b) must be  read to impose an
affirmative obligation on the Government  to, "whenever practicable,
[provide] access to the relevant  materials before or at the meeting
at which the materials are  used and discussed." 980 F.2d at 1472.
Likewise, in order to  give meaning to FACA's fair balance and
independent judg- ment provisions, the Act must be read to confer on a
commit- tee member the right to fully participate in the work of the 
committee to which he or she is appointed. Any other  reading would
nullify Congress's express intent.


We find the Government's position somewhat disingenuous,  moreover, as
committee membership is manifestly not mean- ingless in the "real
world" of Washington policy making.  Appointment to an advisory body
is often coveted and highly  esteemed, and the benefits flow both
ways: while the individ- ual member gains "recognition and even
prestige," the Gov- ernment obtains valuable advice and political
legitimacy with  respect to its policy decisions. Association of Amer.
Physi- cians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 914 (D.C. 
Cir. 1993); see also Jay S. Bybee, Advising the President:  Separation
of Powers and the Federal Advisory Committee  Act, 104 Yale L.J. 51,
58-59 (1994) ("The government ...  uses advisory committees to
legitimize agency viewpoints.  An agency decisionmaker may have
reached a tentative or  even a firm conclusion about a particular
matter, and may  look to an advisory committee to validate that
conclusion.  Politically, the agency's decision will not be salable
without  some outside, 'neutral' support.") (footnote omitted); id. at
59  ("[P]residential advisory committees may serve purely politi- cal
ends, as vehicles for communicating with Congress and  the people,
building support for proposals, or masking the 


government's unwillingness to act."). Thus, we have ob- served that:


When the executive branch endorses [a committee's]  advice and seeks to
promote the policy course suggested  by the committee, the executive
branch draws upon the  committee's political legitimacy. Congress'
effort to en- sure that these committees are balanced in terms of 
viewpoint recognizes their usefulness for political (and  patronage)
purposes.


Association of Amer. Physicians and Surgeons, 997 F.2d at  914. Given
these realities, it is apparent that committee  membership bestows
both rights and obligations beyond  those given to members of the
general public.


In any event, the Government does not dispute that com- mittee members
have at least the same rights under FACA  as the public. Although we
disagree with the Government's  position that the rights of a
committee member extend no  further than the rights of a non-member,
even taking only  this limited view, the Government's concession is
significant.  Because there is no question under our precedent that
mem- bers of the public possess enforceable rights to obtain infor-
mation under FACA, see Food Chem. News, 980 F.2d at 1472,  it follows
a fortiori that committee members have at least  these same rights.
And we have also made it clear that  FACA rights are enforceable even
after an advisory commit- tee has been disbanded. See, e.g., Byrd,
1999 WL 252643, at  *4 (rejecting argument that plaintiff's injury was
not redress- able where panel had already completed its work and been 


The Government's concession that committee members  have at least the
same rights under FACA as the public goes  to the heart of Cummock's
document request. Cummock  clearly possesses an enforceable right to
information under  FACA, because any member of the public possesses
such a  right. Moreover, Cummock possesses an even greater right  than
a member of the public, because, as a Commission  member, she is
entitled to fully participate in its delibera- tions. Thus, provided
that Cummock was granted the requi-


site security clearance, the Commission could not deny her  access to
information that it reviewed and relied upon in  formulating its
recommendations--even if, for instance, that  information might have
been withheld from the public pursu- ant to a FOIA exemption.


For the purposes of this case, two avenues of relief follow  from our
conclusion that Cummock has an enforceable right  under FACA. First,
to the extent that Cummock seeks  information that was made available
to the Commission dur- ing the course of its deliberative process and
without which  her ability to fully and adequately participate in that
process  was impaired, she is entitled to review such materials. On 
this score, no one seems to know precisely what Cummock  still needs.
At oral argument, Cummock's counsel was un- able to pinpoint what
documents Cummock is entitled to  receive to which the Government has
yet to provide her  access. Government counsel, while indicating that
Cummock  has received certain documents, was likewise unable to assure
 us that she has obtained everything that she might be enti- tled to
review. Therefore, on remand, the District Court  must engage in the
necessary discovery and fact finding to  determine whether any
additional materials fall within the  parameters of information to
which Cummock is entitled. Cf.  Animal Legal Defense Fund, 104 F.3d at
431 (remanding to  district court, after finding that committee was
subject to  FACA, "so that the district court may determine whether 
there are documents to which the appellants may obtain  access under
FACA and whether other injunctive relief  should issue"); California
Forestry Ass'n, 102 F.3d at 613  ("We are unable to determine the
propriety of injunctive  relief at the summary judgment stage because
the district  court has yet to make factual findings.").


Second, assuming that Cummock is entitled to review cer- tain
Commission documents to which she has heretofore been  denied access,
she must also be given an opportunity to  amend and publish a dissent
incorporating her fully enlight- ened views. We note that there is no
dispute here over  Cummock's right to have her dissent published with
the final  report. The Government gave her that right by publishing 


her dissent initially, so the question is no longer at issue.  Because
the Commission's FACA violations frustrated Cum- mock's ability to
prepare a complete and informed dissent,  the Government must allow
Cummock to revise that dissent if  she wishes to do so. Furthermore,
because the final report is  still widely available, including on the
internet, see , and may still be in use  by agency decision makers,
the Government must publish and  distribute Cummock's revised dissent
in the same places as it  originally circulated the final report and
dissent. Finally, the  District Court should consider whether, in
light of any  amendments that are made to Cummock's dissent, modifica-
tion of the editor's note would be appropriate.


III. Conclusion


For the above reasons, we reverse the decision of the  District Court
and remand the matter for further proceedings  consistent with this
opinion.


So ordered.


Rogers, Circuit Judge, concurring: I write separately to  clarify two
points.


First, notwithstanding the broad language in the court's  opinion, see
Opinion at 16-17, 19, the court is not foreclosing  the government
from showing that it would not be "practica- ble" to disclose
information to all members of a committee  established under the
Federal Advisory Committee Act. Cf.  Food Chem. News Inc. v.
Department of Health and Human  Servs., 980 F.2d 1468, 1469 (D.C. Cir.
1993). Although the  court concludes that members of a FACA committee
are  entitled to "fully participate" in committee deliberations, see 
Opinion at 19, the court has not considered, and expresses no  view
about, whether "full" participation necessarily entails an  equal
opportunity to participate at all times. For example, a  FACA
committee might plausibly claim that it may consider  classified
information even if such information cannot be  made available to all
of its members for want of a security  clearance or "need to know."
Exec. Order 12,958, s 4.2(a)(3),  60 Fed. Reg. 19,825 (1995). However,
whether denial of  access to classified or sensitive information would
constitute  an actionable denial of "full" participatory rights is not
before  the court (but may arise on remand) because the government 
has not identified any reason to treat Cummock on less-than- equal
footing with other committee members. She asserts  that she had the
necessary security clearance and the govern- ment does not contest
that assertion. See Appellee's Brief at  20 n.8. To the extent the
government maintains there is still  a "need to know" threshold
requirement before classified  information can be disclosed, see id.
(citing Exec. Order  12,958), the court's holding that Cummock has a
right to  participate fully in the committee's deliberations, which
in- cludes a cause of action to obtain the same information  provided
other members, appears to satisfy the need-to-know  requirement,
although the issue could be explored as neces- sary by the district


Second, following from the court's holding that there is a  cause of
action under FACA for a committee member to  obtain information
considered during committee delibera-


tions is the question of what a member may do with that  information,
i.e., whether FACA allows additional equitable  remedies entitling
Cummock to amend her dissent or delete  the editor's note. Broad
remedies may be available. Cf.  California Forestry Ass'n v. United
States Forest Serv., 102  F.3d 609 (D.C. Cir. 1996); see also Cort v.
Ash, 422 U.S. 66,  78 (1975), and its progeny, Transamerica Mortgage
Advisors,  Inc. v. Lewis, 444 U.S. 11, 18 (1979); Touche Ross & Co. v.
 Redington, 442 U.S. 560, 575-76 (1979). Neither party has  fully
briefed the question of remedies, the district court did  not address
it, nor has this court previously considered the  scope of remedies
available to committee members who, after  a committee has disbanded
and released its final report,  challenge the manner in which the
committee deliberated.  Still, in view of the publication of Cummock's
dissent, her  right to participate fully would be seriously diminished
were  she unable to correct her dissent in light of information 
previously wrongfully withheld from her and to have it pub- lished in
corrected form. See Opinion at 20. Given congres- sional intent to
avoid the wasteful expenditure of public  money and biased proposals,
see Public Citizen v. United  States Dept. of Justice, 491 U.S. 440,
453 (1988), in part by  requiring committee membership to be "fairly
balanced" and  the advice to be the result of the committee's
"independent  judgment," see 5 U.S.C. app. 2 s 5(b)(2), (3), the court
 reasonably concludes that such a remedy reflects congres- sional
intent. See Transamerica Mortgage Advisors, Inc.,  441 U.S. at 25.
Contrary to the government's suggestion, see  Appellee's Brief at
15-17, such relief does not represent  judicial intrusion in
intra-committee disputes; the committee  has already decided to
publish Cummock's dissent. But, in  view of the posture of the case on
appeal, the district court  retains leeway to consider the scope of
its remedial authority  in light of arguments that the parties may