United States v. 2005-03-16 | 03-55683 | Manshardt Vfederal Judicial Qualifications Committee |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 PATRICK J. MANSHARDT,
Plaintiff-Appellant, No. 03-55683
v. D.C. No.
 FEDERAL JUDICIAL QUALIFICATIONS CV-02-04484-FMC
COMMITTEE; GERALD PARSKY; OPINION
DIANNE FEINSTEIN; BARBARA BOXER,
Defendants-Appellees. 
Appeal from the United States District Court
for the Central District of California
Florence Marie Cooper, District Judge, Presiding
Argued and Submitted
February 11, 2005—Pasadena, California
Filed March 17, 2005
Before: John T. Noonan, David R. Thompson, and
Michael Daly Hawkins, Circuit Judges
Opinion by Judge Thompson
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COUNSEL
Patrick J. Manshardt, Los Angeles, California, plaintiff-
appellant pro se.
Joseph S. Klapach, Los Angeles, California, and Grant R.
Vinik, Washington, D.C., for the defendants-appellees.
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OPINION
THOMPSON, Senior Circuit Judge:
Patrick J. Manshardt appeals the dismissal of his complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Proce-
dure for failure to state a justiciable claim. In his complaint,
Manshardt alleged that the Federal Judicial Qualifications
Committee, a committee formed by private citizen Gerald
Parsky and United States Senators Diane Feinstein and Bar-
bara Boxer to recommend nominees to the President to fill
federal district court and United States Attorney vacancies in
California, had been meeting in private and without a charter
in violation of the Federal Advisory Committee Act (FACA),
5 U.S.C. App. §§ 1 through 14.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
conclude that a private right of action is not available under
FACA, and therefore we affirm the district court’s dismissal
of Manshardt’s complaint.
I. FACTS AND PROCEEDINGS
The Federal Judicial Qualifications Committee was formed
in March 2001 by Democratic Party Senators Diane Feinstein
and Barbara Boxer, in conjunction with Gerald Parsky, a pri-
vate businessman and member of the Republican Party. The
Committee, which is responsible for recommending to the
President nominations for federal district court judges and
United States Attorneys in California,1 was established pursu-
1The parties dispute the precise role played by the Committee in the
screening and recommendation of candidates for United States Attorney.
Manshardt alleges general involvement by the Committee in this process,
while the Senators contend the screening of candidates for United States
Attorney is conducted by Parsky and his twelve subcommittee appointees,
without any involvement by the Senators’ subcommittee appointees.
Because this case comes to us on review of the district court’s judgment
of dismissal, we take Manshardt’s allegations as true. See, e.g., Burgert v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000).
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ant to a voluntary agreement between Parsky and Senators
Feinstein and Boxer to develop a list of candidates for
appointment likely to meet with the approval of both the Pres-
ident and the Senate.
The Committee is comprised of four six-member commit-
tees, one for each judicial district in California. Each subcom-
mittee includes one member selected by Senator Feinstein,
one member selected by Senator Boxer, one member jointly
selected by both Senators, and three members selected by Par-
sky. Parsky chairs the full Committee and serves as the
appointed chair of each subcommittee. Each subcommittee is
charged with naming three to five possible nominees for dis-
trict court and United States Attorney vacancies within the
relevant judicial district. Following review of each candidate
under consideration, the subcommittees select potential nomi-
nees among those candidates by majority vote. Parsky
reviews the subcommittees’ recommendations and forwards
them to the President to be considered for nomination.
Manshardt, an attorney who practices in various federal
courts within California and a recent applicant for the post of
United States Attorney for the Central District of California,
challenged the validity of the Committee and its procedures
by filing the complaint underlying the instant appeal. In his
complaint, Manshardt alleged the Committee’s activities vio-
late FACA, 5 U.S.C. App. §§ 1 through 14.2 Specifically,
Manshardt alleged the Committee had failed to file a charter
with the Administrator of General Services as required by
section 9 of FACA, and had failed to hold meetings open to
the public after notice published in the Federal Register as
required by section 10.
2Manshardt’s complaint also alleged violations of Article II, § 2, clause
2 of the Constitution (Presidential Appointment of Federal Officers), and
the Government in the Sunshine Act, 5 U.S.C. § 552b. Manshardt has
abandoned these claims.
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The district court dismissed the complaint in its entirety on
the ground that it presented a nonjusticiable political question.
The district court held that judicial review of the propriety of
the Committee’s role in the nomination of federal district
court judges and United States Attorneys would compel the
court to “interject itself into the nomination process,” an act
that would violate constitutional separation of powers princi-
ples. The district court declined to address the various alterna-
tive bases for dismissal advanced by the defendants, including
the absence of a private right of action to enforce FACA.
II. STANDARD OF REVIEW
We review de novo the district court’s order dismissing the
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, taking all well-pleaded allegations of material fact
as true and construing them in the light most favorable to the
plaintiff. Gomper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir.
2002). Dismissal is proper under Rule 12(b)(6) if it appears
beyond doubt that the plaintiff can prove no set of facts to
support his claims. Adams v. Johnson, 355 F.3d 1179, 1183
(9th Cir. 2004). We may affirm a Rule 12(b)(6) dismissal on
any basis fairly supported by the record. Id.
III. DISCUSSION
Parsky, joined by Senators Feinstein and Boxer, contends
the district court properly dismissed Manshardt’s FACA
claims because FACA does not create a private right of
action. Manshardt argues that although FACA does not con-
tain an express provision for private rights of action, a private
right may be implied. In support of this contention, Manshardt
notes the Supreme Court has previously assumed the exis-
tence of a private right of action to enforce FACA. See Public
Citizen v. United States, 491 U.S. 440 (1989); see also Judi-
cial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F.
Supp. 2d 20, 33-34 (D.D.C. 2002), (collecting cases in which
courts have assumed the existence of a private right of action
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under FACA without examining whether Congress intended
to create one), rev’d on other grounds, Cheney v. United
States Dist. Court, 334 F.3d 1096 (D.C. Cir. 2003), vacated
on other grounds by Cheney v. United States Dist. Court, 124
S. Ct. 2576 (2004).3 Indeed, we have previously assumed the
existence of a private right of action to enforce FACA. See
Aluminum Co. of Am. (ALCOA) v. Nat’l Marine Fisheries
Serv., 92 F.3d 902 (9th Cir. 1996). In light of more recent pre-
cedent, which clarifies that private rights of action are not
lightly to be implied, we decline to rely on the interstices of
Public Citizen and instead independently evaluate the exis-
tence of a private right of action under FACA.
[1] In Alexander v. Sandoval, 532 U.S. 275, 286-87,
(2001), the Supreme Court made clear that in the absence of
clearly expressed Congressional intent to create a private right
of action, no such action may be implied. It is irrelevant that
a private right of action may be “ ‘necessary to make effective
the congressional purpose,’ ” or may be desirable as a matter
of public policy; private rights of action to enforce federal
law, like substantive federal law itself, must be created by
Congress. Id. at 287 (citing J.I. Case Co. v. Borak, 377 U.S.
426, 433 (1964)).
[2] The judicial inquiry into congressional intent, the Court
made clear in Sandoval, is two-pronged: a private cause of
action arises only when a statute “displays an intent to create
not just a private right but also a private remedy.” Id. at 286.4
3The district court in Judicial Watch, 219 F. Supp. 2d at 34-42, recog-
nized that FACA’s requirements might be capable of private enforcement
through claims based on the Administrative Procedure Act, 5 U.S.C.
§ 706, and under the federal mandamus statute, 28 U.S.C. § 1361. Because
Manshardt’s claims are based exclusively on FACA, we need not consider
whether judicial review of an advisory committee’s compliance with
FACA may be prompted by other statutory provisions.
4The Supreme Court has not abandoned, nor have we, consideration of
the factors expressed in Cort v. Ash, 422 U.S. 66, 78 (1975), for evaluating
whether a statute contains an implied private right of action. See Walls v.
Wells Fargo Bank, 276 F.3d 502, 508 (9th Cir. 2002). We have, however,
recognized that “the critical inquiry” is Congressional intent, and so direct
our inquiry. See id.
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Stated differently, even if a statute contains the requisite
“rights-creating language” sufficient to confer “individual
entitlement” to its benefits, see Gonzaga Univ. v. Doe, 536
U.S. 273, 287 (2002), a private right of action will not be
implied without an indication of congressional intent that such
a right be privately enforceable. Id. at 284; see also Price v.
City of Stockton, 390 F.3d 1105, 1109 n.3 (9th Cir. 2004) (dis-
tinguishing an implied cause of action from rights enforceable
under 42 U.S.C. § 1983).
[3] It may well be that some of the FACA requirements
Manshardt alleges were violated were intended by Congress
to create private rights. Courts have extended recognition to
FACA’s rights-creating language in the past. See Judicial
Watch, 219 F. Supp. 2d at 33 (citing Cummock v. Gore, 180
F.3d 282 (D.C. Cir. 1999)); Byrd v. EPA, 174 F.3d 239 (D.C.
Cir. 1999) (recognizing that FACA grants a private right of
access by the public to specified advisory committee materi-
als). However, Sandoval requires more than mere congressio-
nal intent to create a private right; a private right of
enforcement exists only if the statute also reveals congressio-
nal intent to create a private remedy. Our examination of the
text and structure of FACA reveals nothing to indicate Con-
gress 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.
[4] FACA instead appears to contemplate that monitoring
and oversight of compliance with its requirements will be
achieved, not through private enforcement, but rather by gov-
ernmental regulation. The Act requires Congress to conduct a
continuing review of the activities and responsibilities of
existing advisory committees, 5 U.S.C. App. § 5(a), and to
this end requires the President to submit to Congress an
annual report on all advisory committees. Id. § 6(c). FACA
obligates the Administrator of General Services to conduct a
comprehensive annual review of the continuing usefulness of
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existing advisory committees, and it requires both the GSA
and the controlling federal agency to prescribe guidelines and
management controls for advisory committees. Id. § 7(a)-(c).
Finally, FACA grants authority to the Comptroller General to
audit the financial records of any advisory committee. Id.
§ 12(a). While these provisions do not specify a comprehen-
sive scheme of public enforcement of the type provided in
Title VI, we are nonetheless mindful of the Court’s admoni-
tion in Sandoval that “[t]he express provision of one method
of enforcing a substantive rule suggests that Congress
intended to preclude others.” Sandoval, 532 U.S. at 290.
FACA’s express provisions for governmental oversight but-
tress our conclusion that a private right of action may not be
implied. See id. at 290-91.
The district court’s dismissal of Manshardt’s complaint is
AFFIRMED.
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