The decision looks vulnerable to overrule, particularly if the losing plaintiff petitions the court to rehear the case en banc. This is not the best case for assessing the enforceability of FACA, because the committee being challenged -- a special committee created by Sens. Feinstein and Boxer and a Republican to generate names of Californian attorneys with a decent likelihood of being acceptable to both the White House and the Senate as judicial and U.S. Attorney nominees -- probably does not fall within the scope of FACA in the first instance. You still can't say that these are bad facts making bad law, because the 9th Circuit panel didn't even get to the underlying facts themselves (as indeed they could not under 12(b)(6) motions to dismiss) but instead addressed the abstract question of FACA's private enforceability.

This case notably does not address the appropriateness of using the APA for litigating FACA issues, and the question of using the Mandamus Act for vindicating FACA issues (a precariously positioned element of the Cheney task force case) is likewised unaddressed in this case.

Posted by Robert Shull, 07:53:49 PM