1:17-cv-01485
D.D.C.Dec 10, 2018Background
- Food & Water Watch sued the President (in his official capacity) and DOT alleging a de facto advisory committee—the "Infrastructure Council"—violated the Federal Advisory Committee Act (FACA).
- Plaintiff relied on public statements and press reports identifying four private individuals (LeFrak, Roth, Harris, Ford) as intended participants and on communications between them and White House/DOT officials in early–mid 2017.
- The White House issued EO 13805 on July 19, 2017, announcing a Presidential Advisory Council on Infrastructure; the EO was revoked on Sept. 29, 2017, before a charter or official appointments were finalized.
- The Court authorized limited jurisdictional discovery narrowly tailored to whether group advice was sought or rendered (interrogatories about meetings, drafts, votes, and the nature of "preliminary discussions").
- Defendants searched calendars, e-mails, and consulted former staff; they identified ~13 preliminary contacts (emails, calls, one full in‑person meeting) but asserted no group recommendations, votes, or drafts resulted.
- The Court found defendants’ discovery responses adequate, concluded no de facto FACA committee existed, and dismissed for lack of subject‑matter jurisdiction; plaintiff’s motion to compel further discovery was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a de facto advisory committee existed under FACA | The identified private participants met with officials and provided/collectively shaped advice; thus FACA applies | Meetings were preliminary logistics/planning; no group advice, vote, veto, or draft report occurred | No de facto committee; jurisdiction lacking |
| Whether plaintiff has informational/organizational standing under FACA | Plaintiff claims informational injury from denial of FACA disclosures and organizational harm | No FACA obligation existed, so no cognizable informational or organizational injury | No standing; dismissal for lack of subject‑matter jurisdiction |
| Adequacy of limited jurisdictional discovery responses | Responses insufficient; requester seeks more detailed searches and verifications | Government conducted reasonable searches and verified responses; separation‑of‑powers limits broad discovery | Responses adequate; further discovery denied |
| Whether preliminary planning communications trigger FACA | Plaintiff: planning can amount to group advice and trigger FACA | Defendants: planning about forming a committee is exempt and distinct from rendering group policy advice | Planning communications alone do not trigger FACA; need evidence of collective advice/vote/draft |
Key Cases Cited
- Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) (refusal to disclose FACA materials causes informational injury)
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (separation‑of‑powers concerns limit intrusive discovery into presidential deliberations)
- In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) (de facto committee membership requires substantive participation such as vote or veto)
- Ass’n of American Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (FACA applies only when group, not individual, advice is sought or rendered)
- Byrd v. EPA, 174 F.3d 239 (D.C. Cir. 1999) (committee is "established" when actually formed and "utilized" when the executive exerts management and control)