Appeal from the United States District Court for the District of Columbia (94cv01003)
Before: Silberman, Ginsburg, and Sentelle, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Silberman.
Appellants challenge the district court's determination that a National Academy of Sciences committee, which promulgates and revises a guide on the care and use of laboratory animals for government agencies, is not subject to the Federal Advisory Committee Act because it is not "utilized" within the meaning of the statute. We reverse.
The National Academy of Sciences (NAS), Appellee-Intervenor, was chartered by Congress in 1863 and has a duty to, "whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art." 36 U.S.C. Section(s) 253 (1994). The Academy's principal operating arm is the National Research Council, which includes as one of its subcomponents the Institute for Laboratory Animal Resources. For over four decades, the Research Council and the Institute have produced for the federal government the Guide for the Care and Use of Laboratory Animals, a scientific manual which includes guidelines for handling and monitoring the treatment of laboratory animals.
Although the Guide is distributed and referenced throughout the world, some of its primary users are federal agencies that have statutory duties to ensure that research laboratory animals are treated properly. Health and Human Services regulations, for instance, actually require that institutions funded by the National Institute of Health follow the most recent version of the Guide in adopting programs involving laboratory animals. See 48 C.F.R. Section(s) 380.205(a)(1) (1995). The United States Department of Agriculture has also incorporated the Guide's recommendations into regulations. See 56 Fed. Reg. 6,428 (Feb. 15, 1991). The Interagency Research Animal Committee, which consists of representatives from each federal agency that uses animals in research, refers readers of its government-wide Principles for the Utilization and Care of Vertebrate Animals Used in Testing, Research and Training to the Guide as an aid to the interpretation and execution of the Principles. The most recent revision of the Guide-the 7th edition-is again being produced by a committee of the Research Council and the Institute (the "Guide Committee"). The Institute selected 16 individuals to serve on the Committee based on the recommendations of academics, industry scientists, toxicologists, veterinarians, members of the Academy, and others. A majority of the members are scientists of national stature who use animals in research and possess expertise in various areas of science, ethics, veterinary medicine, and animal welfare. The Institute had decided to revise the Guide at a workshop it convened in 1991, so it submitted a grant proposal to the NIH, which approved the grant in 1993. Representatives of the NIH and other federal agencies attended the Committee's first meeting and recommended new issues to be addressed by the updated Guide, but no federal agency further involved itself in the Committee's deliberative process. The Academy's rules on confidentiality prevented Committee members from discussing the substance of the Guide with representatives of the sponsoring agencies. The NAS informed the public of the Guide Committee's appointment and held public forums, but the Committee denied public access to its deliberative meetings.
Appellants, the Animal Legal Defense Fund, Psychologists for the Ethical Treatment of Animals, and the Association of Veterinarians for Animal Rights, sought access to those meetings and to any minutes, transcripts, or records of the Committee under the Federal Advisory Committee Act, 5 U.S.C. App. Section(s) 1-15 (1994) (FACA). Appellants named as defendants, individually and collectively, HHS, the Public Health Service, and NIH (collectively, "the government"). The NAS subsequently intervened as a co-defendant. The district court denied appellants' motion for a preliminary injunction to attend the meetings, and their appeal from that order was dismissed as moot when four days before oral argument the Committee conducted its final meeting, leaving nothing to enjoin. Animal Legal Defense Fund v. Shalala, 53 F.3d 363 (D.C. Cir. 1995). On remand, the district court granted the defendants' motion for summary judgment, concluding that the Guide Committee was not an "advisory committee" subject to FACA because it was not "established or utilized by one or more agencies." 5 U.S.C. App. Section(s) 3(2)(C).
Congress enacted FACA in 1972 to control the establishment of advisory committees to the federal government and to allow the public to monitor their existence, activities, and cost. See Public Citizen v. United States ...