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05/21/76 Aviation Consumer Action v. C. Langhorne Washburn

May 21, 1976

AVIATION CONSUMER ACTION PROJECT ET AL

v.

C. LANGHORNE WASHBURN, ET AL., APPELLANTS REPORTED AT: 535 F.2D 101 AT 109. 1976.CDC.125



Bazelon, Chief Judge; Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Date Reported: Original Opinion of April 6, 1976 at: 535 F.2d 101. On Appellees' Suggestion for Rehearing En Banc.

D.C. Civil Action 1838-73.

APPELLATE PANEL:

PER CURIAM DECISION, Appellees' suggestion for rehearing en banc having been transmitted to the full Court and no Judge having requested a vote thereon, it is

ORDERED by the Court en banc that appellees' aforesaid suggestion for rehearing en banc is denied.

Per Curiam Statement of Bazelon, C.J., in which Circuit Judge Wright concurs, explaining why he voted to deny rehearing en banc:

Given the broadest possible interpretation, Exemption 5 relating to "inter-agency or intra-agency memorandums" could, as appellees predict, gut the open meeting provisions of the Federal Advisory Committee Act. *fn1 The rubric of "inter-agency or intra-agency memorandums" can conceivable be stretched to include all communications between agency and advisory committee concerning policy advice. Premising their argument on such an expansive reading, appellees argued that Exemption 5 was "inherently inconsistent" with the legislative policy behind the Act and demanded that it be judicially excised. That the panel refused to read Exemption 5 out of the statute entirely does not so misstate applicable law as to merit rehearing en banc. Cf. FAA Administrator v. Robertson, 422 U.S. 255, 45 L. Ed. 2d 164, 95 S. Ct. 2140 (1975).

On the other hand, preserving the open meeting requirements of the Federal Advisory Committee Act is indisputably a matter of "exceptional importance." F.R.A.P. 35 (a) (2). The Act is a vital first step toward opening up to public scrutiny and participation levels of agency decisionmaking where public policy begins to take shape. That promotes peer review by other experts steeped in the subject-matter as well as oversight by the public. See Ethyl Corp. v. EPA, 541 F.2d 1, 176 U.S. App. D.C. 373 (1976) (Bazelon, C.J., concurring).

The parties here did not urge, and the court did not consider, a narrowing construction of Exemption 5 in the context of the Advisory Committee Act. *fn2 The panel opinion does not, for example, foreclose the possibility that a specific, pre-existing document qualifying as an "inter-agency or intra-agency memorandum" before it is passed to the advisory committee may be necessary to trigger the exemption. See Nader v. Dunlop, 370 F. Supp. 177, 180 (D.D.C. 1973). *fn3 Nor does it decide whether a committee discussion of the same subject matter as that covered in an exempt memorandum, which discussion does not -- or need not -- involve the specific contents of the memorandum, is "concerned with matters" exempt under ยง 10(d). Finally it is not decided whether "reasonably segregable" portions of meetings concerned with non-exempt matters must remain public. Nader v. Dunlop (supra) 370 F. Supp. at 179.

As I read it, the panel merely decided that Exemption 5 must be given some effect in the context of the Federal Advisory Committee Act -- leaving open the exact confines of the ...


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