A federal appeals court has ruled that the Federal Advisory Committee Act (FACA), an open government statute designed to guarantee that committees advising federal agencies are not biased, does not create a private right of action. The Ninth Circuit Court of Appeals ruled on Mar. 17 in Manshardt v. Federal Judicial Qualifications Committee, No. 03-55683, that an attorney seeking appointment as a U.S. Attorney could not use FACA to challenge the validity of a committee created by California Sens. Diane Feinstein (D) and Barbara Boxer (D) to recommend names to the White House for federal district court nominees and U.S. Attorneys in California. The court held that FACA, which has no express right of action, creates no implied right of action for private enforcement in the courts. Legal Context There are essentially three ways that private citizens can litigate to enforce statutory law.

1. The easiest case is an express right of action, meaning that the statute explicitly allows for litigation. The Freedom of Information Act, for example, has an express right of action for citizens to sue when their FOIA requests are unjustly denied. See 5 U.S.C. § 552(a)(4)(B).
2. An implied right of action exists when a statute does not explicitly create a right of action but its text is written in such a way that a private right of action is implied by the statutory language. For example, Title IX (which promotes gender equity in higher education) does not expressly create a right of action, but it does include a command that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” — language that indicates Congress’s intent to confer a specific benefit, private enforcement of which would not frustrate the purposes of the statute. See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).
3. The third way is to use some other statutory right of action as a vehicle to enforce unrelated commands. The two most used are 42 U.S.C. § 1983, which is a vehicle for vindicating rights arising under federal constitutional or statutory law, and the Administrative Procedure Act, which confers a right to force federal agencies to conduct the regulatory process appropriately.

Although many courts, including the Supreme Court, have assumed that FACA creates an implied right of action to challenge advisory committees that are biased or conduct their proceedings in secret, see, e.g., Public Citizen v. United States, 491 U.S. 440 (1989), the Supreme Court has not directly addressed the question. When faced with FACA most recently in the dispute over its applicability to the National Energy Policy Development Group, commonly called the Cheney Energy Task Force, the Court concentrated on separation-of-powers questions and the proper scope of discovery against the vice president, again assuming without addressing the private enforceability of FACA. See Cheney v. United States Dist. Ct., 124 S. Ct. 2576 (2004). The Manshardt court attacked the private enforceability of FACA based on two recent Supreme Court decisions addressing the enforceability of other statutes. In Alexander v. Sandoval, 532 U.S. 275 (2001), the Court held that the disparate impact regulations promulgated under section 601 of Title VI of the Civil Rights Act of 1964 did not create private rights of action. Section 601 of Title VI confers an implied right of action to vindicate intentional discrimination, and section 602 authorizes agencies to promulgate regulations enforcing the antidiscrimination principles of the act. The regulations have barred not only intentional discrimination but also practices with an adverse effect on minorities. The Supreme Court had ruled in a 1974 case that the statute likewise proscribed disparate impact discrimination, but many subsequent decisions narrowed the ruling until section 601 itself appeared to bar only intentional discrimination. The Sandoval plaintiffs attempted to pursue a disparate impact claim on the basis of the regulations enforcing section 601, but the Supreme Court destroyed that argument by noting that the regulations did not merely interpret the statute but instead regulated conduct beyond the specific terms of the statute. The more recent case of Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), harmonized the standards for enforcing statutory rights through section 1983 with the standards for finding implied rights of action. The Gonzaga Court rejected a claim that a university violated a student’s right to privacy of educational records under the Buckley Amendment, arguing that the statutory clause cited was not written with the sort of “right-creating language” that unambiguously created rights that could be vindicated under section 1983. The opinion, authored by Chief Justice Rehnquist, was not a model of jurisprudential scholarship; it seemed, in fact, to rely on an antiquated Langdellian ontology of legal entities, in this case “rights.” (Moreover, it is not clear why there should be any merger of the doctrine of implied rights of action and the standards for finding statutory rights that can be pursued under section 1983; the combination of an implied right of action and the Ex parte Young doctrine would make section 1983 superfluous as a vehicle for litigating rights arising under federal statutory law.) Because the statute was written only to mandate that “[n]o funds shall be made available” to any school with a “policy or practice” of failing to guard student privacy, the Court held that the language was “two steps removed from the interests of individual students and parents” and thus failed to phrase the claimed right in terms of an individual entitlement, in contrast with the Title IX guarantee of gender equity in higher education that the Court approved in Cannon. About This Decision The Manshardt decision follows the trend of narrowing rights from Sandoval and Gonzaga without carefully applying the rules of those precedents, much less other Supreme Court precedents such as Cannon. The opinion is only a cursory eight-page treatment that does not even bother to quote specific language from FACA or identify the basis for applying Sandoval. The Manshardt court is in fact so hostile to private enforcement of FACA that it appears to be on the verge of holding that there can never be any implied rights of action at all: Sandoval requires more than mere congressional intent to create a private right; a private right of enforcement exists only if the statute also reveals congressional intent to create a private remedy. Our examination of the text and structure of FACA reveals nothing to indicate Congress intended a private remedy. FACA contains no express private right of action, nor does it include any provision for judicial review. Indeed, FACA is entirely silent as to the appropriate remedy for violation of its requirements. Slip op. at 3339. Here, the court teeters on the brink of rejecting any possibility of implied rights of action. The very basis of implied-right-of-action jurisprudence is that there are some statutes, such as higher education’s Title IX and Title VI of the Civil Rights Act, that grant rights but do not expressly provide for judicial review and citizen suits. If Congress explicitly creates judicial review provisions, it thereby creates express rights of action; there would be no need at all for any doctrine of implied rights of action. The Gonzaga Court did not require express rights of action across the board; it only held that both rights enforced by section 1983 and claims pursued under implied rights of action are created by statutory language drafted in terms that, like Title IX, create a clear mandate to protect specific beneficiaries. Moreover, there can be no right without a remedy; they are one and the same. Congress can use the language of rights in a merely precatory manner, as with the patient’s “bill of rights” in the Developmentally Disabled Assistance and Bill of Rights Act, see Pennhurst State Sch. & Hosp. v. Haldeman, 451 U.S. 1 (1981), but this inquiry — in which there is no real right, and thus no remedy at law — is completely separate from the doctrine of implied rights of action. The Manshardt court also completely ignores the binding precedent of Cannon by arguing that FACA cannot create a private right of action because “FACA . . . appears to contemplate that monitoring and oversight of compliance with its requirements will be achieved, not through private enforcement, but rather by governmental regulation.” Slip op. at 3339. Again, the opinion verges on rejecting implied rights of action altogether, because statutes from which rights of action may be implied invariably provide for some sort of regulatory oversight but do not specifically mention private suits. Moreover, the Supreme Court in Cannon found an implied right of action in Title IX even though the statute directly contemplated only regulation. In many ways, the decision directly steps into not only the narrowing doctrines of private enforcement of statutes but also the larger questions of litigating against the government in the era of the modern administrative state. Similar questions splintered the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in which Justices Kennedy, Souter, and O’Connor disagreed in various ways with Justices Scalia and Thomas and Chief Justice Rehnquist over standing to pursue claims of procedural insufficiency in the regulatory process. Private enforcement of FACA, as with private enforcement of any statute, converts the citizenry into private attorneys general, holding the government itself accountable to its own laws. In times of one-party dominance, private enforcement is particularly important if the law will mean anything. As this administration has shown time and again with its biased advisory panels, private enforcement of FACA is more important now than ever. The decision — authored by a Reagan appointee and joined by a Reagan and a Clinton appointee — could still be subject to a petition for rehearing and, ultimately, Supreme Court review.