United States v. 2005-05-11 | 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 May 12, 2005
Before: John T. Noonan, David R. Thompson, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Thompson
5199

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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.
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. 2 §§ 1-14 (2004).
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
conclude that the Committee is not an advisory committee
falling within the scope of FACA, and therefore we affirm the
district court’s dismissal of Manshardt’s complaint.
5201 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.

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I
FACTS AND PROCEEDINGS
The Federal Judicial Qualifications Committee (“the Com-
mittee”) was formed in March 2001 by Senators Diane Fein-
stein and Barbara Boxer, both members of the Democratic
Party, in conjunction with Gerald Parsky, a private business-
man and member of the Republican Party. The Committee,
which is responsible for recommending to the President nomi-
nations for federal district court judgeships and for United
States Attorney positions in California,1 was established pur-
suant 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, when applicable, 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 by majority
1The parties dispute the precise role played by the Committee in the
screening and recommendation of candidates for the office of 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 positions is conducted by Parsky and his twelve
subcommittee appointees, without any involvement by the Senators’ sub-
committee appointees. Because this case comes to us on review of the dis-
trict 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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vote potential nominees from among those candidates. 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-
lated FACA.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, 5 U.S.C. App. 2
§ 9(c), and had failed to hold meetings open to the public after
notice published in the Federal Register as required by section
10 of the Act, id. at App. 2. § 10(a).
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
their contention that the Committee is not an “advisory com-
mittee” as defined by FACA.
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 (2004). Manshardt
has abandoned these claims.
5203 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.

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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 the Committee is not an “advisory committee”
falling within FACA’s scope.3 We agree.
3Parsky urges, in the alternative, that we affirm the district court’s dis-
missal of Manshardt’s FACA claims because FACA does not contain an
express provision permitting a private cause of action to enforce rights
created by the Act. Whether FACA is susceptible of private enforcement,
either by its own terms or through claims based on other statutory author-
ity, remains an open question, see Colo. Envtl. Coalition v. Wenker, 353
F.3d 1221, 1227 (10th Cir. 2004); Judicial Watch, Inc. v. Nat’l Energy
Policy Dev. Group, 219 F. Supp. 2d 20, 33-34 (D.D.C. 2002), 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), which we find unnecessary to consider in
this case. See, e.g., Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979) (“The
question whether a cause of action exists is not a question of jurisdiction,
and therefore may be assumed without being decided.”); Price v. City of
Stockton, 390 F.3d 1105, 1108 (9th Cir. 2004) (same); Lapidus v. Hecht,
232 F.3d 679, 681 n.4 (9th Cir. 2000) (same); see also Public Citizen v.
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[1] FACA applies exclusively to “advisory committees,” 5
U.S.C. App. 2 § 4, which are defined as:
any committee board, commission, council, confer-
ence panel, task force, or other similar group, or any
subcommittee or other subgroup thereof . . . which
is—
(A) established by statute or reorganization
plan, or
(B) established or utilized by the President,
or
(C) established or utilized by one or more
agencies,
in the interest of obtaining advice or recommenda-
tions for the President or one or more agencies or
officers of the Federal Government, except that such
term excludes (i) any committee that is composed
wholly of full-time, or permanent part-time, officers
or employees of the Federal Government, and (ii)
any committee that is created by the National Acad-
emy of Sciences or the National Academy of Public
Administration.
5 U.S.C. App. 2 § 3(2).
[2] As is plain from this language, a threshold requirement
for an entity to be an “advisory committee”—and therefore
subject to the requirements of FACA—is that it either be
U.S. Dep’t of Justice, 491 U.S. 440 (1989) (apparently assuming, without
expressly deciding, the existence of a private right of action to enforce
FACA under the extant doctrinal framework, subsequently clarified by the
Court’s opinion in Alexander v. Sandoval, 532 U.S. 275, 286-87, (2001)).
5205 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.

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established by statute or reorganization plan, or established or
utilized by the President, or by one or more agencies. That the
Committee was not established—or even authorized—by stat-
ute or reorganization plan, by the President, or by an agency
is manifest from the allegations in the complaint. Whether the
Committee was “utilized” by the President is only somewhat
less evident, yet ultimately resolved by reference to the
Supreme Court’s decision in Public Citizen v. United States
Department of Justice, 491 U.S. 440 (1989).
[3] In Public Citizen, the Court was called upon to decide
FACA’s application to the American Bar Association’s
Standing Committee on the Federal Judiciary, a committee
that furnished “advice or recommendations” to the President
concerning the qualifications of potential nominees for federal
judgeships. Id. at 452. Because it was clear that the ABA
Committee had not been established by statute, by the Presi-
dent, or by the Justice Department, FACA’s applicability
depended upon “whether [the committee was] ‘utilized’ by
the President or the Justice Department as Congress intended
that term to be understood.” Id. The Court concluded that
although the President utilized the ABA Committee in one
common sense of the term, the President’s use of the ABA
Committee was not encompassed by FACA. Id. at 467. Such
an unqualified reading of the term “utilize” as sought by the
plaintiff “would extend FACA’s requirements to any group of
two or more persons, or at least any formal organization, from
which the President or an Executive Agency seeks advice.”
Id. at 452. Particularly in the context of selecting political and
judicial nominees, it would be absurd, according to the Court,
to think that Congress intended FACA to apply so broadly. Id.
at 453. Although FACA’s reach “is extensive,” the Court
could not “believe that it was intended to cover every formal
and informal consultation between the President or an Execu-
tive agency and a group rendering advice.” Id.
[4] In the present case, the Committee, which operates at
the behest of Parsky and Senators Boxer and Feinstein to
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enable persons to offer a local perspective on potential nomi-
nees, is no more “utilized” by the President in making nomi-
nations than was the ABA Committee at issue in Public
Citizen. Indeed, in comparison with the ABA Committee in
Public Citizen, the Committee in this case is a less likely can-
didate for advisory committee status. Although the Committee
was formed, at least in part, by public officials, the advice and
recommendations it provided were, according to the com-
plaint, not solicited by the President. In contrast, the views of
the ABA Committee had been affirmatively solicited by the
Justice Department. See id. at 444.
[5] Moreover, even if we were to conclude, as Manshardt
urges, that the quasi-public character of the Committee quali-
fies as an important distinction undermining the apparent
mandate of the Court’s analysis in Public Citizen, we would
nevertheless decline to apply FACA in light of the substantial
constitutional difficulties its application would present. See,
e.g., Crowell v. Benson, 285 U.S. 22, 62 (1932). On this point,
the Public Citizen opinion is unambiguous—indeed unani-
mous: the application of FACA to a committee charged with
suggesting or vetting federal judicial nominees, if not plainly
unconstitutional, presents formidable constitutional difficul-
ties. Public Citizen, 491 U.S. at 466-67; see also id. at 482
(Kennedy, J., concurring in the judgment). The power to nom-
inate federal judges, as well as United States Attorneys, is tex-
tually committed by Article II, section 2, clause 2 of the
Constitution to the President. In light of this constitutional
provision, which applies with equal, if not more, force to the
Committee in the present case than it did to the committee in
Public Citizen, we apply the same “sound sense” that coun-
seled caution in Public Citizen and decline to read FACA as
broadly as Manshardt requests. See Public Citizen, 491 U.S.
at 467.
The district court’s dismissal of Manshardt’s complaint is
AFFIRMED.
5207 MANSHARDT v. FEDERAL JUDICIAL QUAL. COMM.

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