239 F. Supp. 3d 213
D.D.C.2017Background
- The Forest Service convened a "Strategy Team" in Sept. 2015 to develop a California spotted owl conservation strategy; the Team initially included at least four non-federal scientists and ~17 members total.
- Center for Biological Diversity (CBD) sent letters objecting that the Team was not "fairly balanced" and violated FACA; CBD filed suit on Dec. 15, 2015 alleging violations of FACA and the APA.
- Three days after filing (but before service), the Forest Service removed the four non-federal scientists, representing the Team was then composed solely of federal employees and that those outside scientists would only be consulted individually.
- Defendants produced many materials from the November 2015 meeting but CBD contended additional documents (e.g., certain correspondence and draft strategy chapters) remained undisclosed under FACA § 10(b).
- Court evaluated (1) whether FACA itself creates a private cause of action, (2) mootness of non-document FACA claims after the Team was reconstituted, and (3) whether a § 10(b) disclosure claim survives dismissal and may be pursued under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FACA creates a private cause of action | FACA violations support direct FACA claims and APA review | FACA contains no express private remedy; judicial review must proceed under APA | FACA does not provide an independent private cause of action; review may proceed under the APA |
| Mootness of non-document FACA claims after removal of non-federal members | Reconstituting Team does not prevent de facto participation by outside scientists; claims remain live | Removal moots non-document claims because Team now composed solely of federal employees and falls within FACA exemption | Non-document FACA claims are moot (dismissed without prejudice); voluntary cessation satisfied defendant's burden that conduct will not reasonably recur |
| Viability of a "pattern or practice" claim to avoid mootness | Defendants engage repeatedly in similar FACA violations by relying on outside scientists | No plausible allegations or record evidence of a pattern; single alleged violation insufficient | Pattern-or-practice claim not plausibly alleged and cannot save non-document claims; dismissed |
| Availability of relief for failure to disclose materials under FACA § 10(b) | CBD seeks disclosure of documents (including draft chapters and correspondence) under § 10(b) | Defendants contend all required § 10(b) materials have been disclosed or are exempt (e.g., subgroup/staff materials) | § 10(b) disclosure claim is not moot; CBD may pursue relief under the APA for alleged nondisclosure (claim survives dismissal) |
Key Cases Cited
- Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) (describing FACA’s purpose and procedural requirements)
- Alexander v. Sandoval, 532 U.S. 275 (2001) (statutory text must show intent to create a private right and remedy)
- In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) (restrictive test for when non-federal participants defeat the §3(2) exemption)
- Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (consultant participation may render a group non-exempt if functionally indistinguishable from members)
- Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) (document-disclosure claims under FACA §10(b) survive disbanding until records are produced)
- Byrd v. U.S. EPA, 174 F.3d 239 (D.C. Cir. 1999) (timeliness of document production can preserve a claim after a committee disbands)
- Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (doctrine of mootness and voluntary cessation principles)