## Facts

- The Department of Justice (DOJ) confidentially consulted the American Bar Association’s Standing Committee on Federal Judiciary (ABA Committee) for evaluations of prospective federal judicial nominees before nominations were announced.
- The ABA Committee was privately created and funded by the American Bar Association; its investigations, deliberations, and internal records were kept confidential, with only a summary rating publicized after nomination.
- Washington Legal Foundation and Public Citizen requested access to the ABA Committee’s identities of potential nominees under consideration and its reports and meeting materials.
- After the ABA Committee refused, the organizations sued DOJ, alleging the ABA Committee was an “advisory committee” that DOJ “utilized” under the Federal Advisory Committee Act (FACA), triggering FACA’s chartering, public notice, open-meeting, and record-disclosure requirements.

## Issues

1. Whether plaintiffs had Article III standing based on denial of information and access they claimed FACA would provide.
2. Whether DOJ’s confidential solicitation of the ABA Committee’s views on prospective judicial nominees meant DOJ “utilized” the Committee so that it became an “advisory committee” covered by FACA.
3. Whether, if FACA applied, enforcing FACA’s openness requirements would impermissibly interfere with the President’s Article II appointment authority.

## Decision

- The Supreme Court held that plaintiffs had standing because the denial of access to information and meetings that would be available if FACA applied constituted a concrete informational injury.
- The Court held that FACA did not apply to DOJ’s consultation with the ABA Committee because the Committee was neither established by the government nor “utilized” in the limited sense intended by FACA.
- Because FACA was construed not to cover the ABA Committee, the Court did not decide the Article II constitutional question.
- A concurrence agreed with the judgment and stressed that a broader reading of FACA would raise serious separation-of-powers concerns by forcing disclosure of confidential consultations regarding judicial nominees.

## Legal Principles

- Denial of access to information and procedures that a statute would require, if applicable, can constitute a sufficiently concrete injury for Article III standing even when many persons could assert the same injury.
- FACA’s term “utilized” is not read literally to cover every private group an agency consults; it is limited to groups so closely tied to the government’s management or control that they function like government-formed advisory bodies.
- When a statute is reasonably susceptible to a construction that avoids serious constitutional questions, courts may adopt the narrower construction and decline to reach the constitutional issue.

## Conclusion

The Court recognized informational standing to sue for alleged FACA violations but interpreted FACA narrowly to exclude DOJ’s confidential reliance on the privately controlled ABA Committee for advice on prospective judicial nominees, thereby avoiding a separation-of-powers dispute over the appointments process.


Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440 (1989)