357 F. Supp. 3d 1
D.C. Cir.2018Background
- Food & Water Watch sued President Trump (official capacity) and DOT alleging a "de facto" advisory committee (the "Infrastructure Council") violated the Federal Advisory Committee Act (FACA) by advising the White House/DOT without FACA procedures.
- Plaintiff relied on public statements by Trump, Sec. Chao, and purported members (LeFrak, Roth, Harris, Ford) and an Executive Order (EO 13805) creating a Presidential Advisory Council on Infrastructure; EO 13805 was later revoked by EO 13811.
- Defendants submitted declarations stating only preliminary discussions occurred and no charter, appointments, or committee meetings producing group recommendations took place; defendants moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim.
- The Court authorized narrowly tailored jurisdictional discovery (eight interrogatories) focused on whether group meetings occurred that produced or solicited collective recommendations, and defendants answered identifying 13 preliminary discussions (emails, calls, two in-person meetings) but no group recommendations, votes, or drafts.
- The Court weighed the record under FACA's narrow construction (concern for separation of powers) and precedent requiring group advice (not merely multiple individual advisors) and a non-government member's vote/veto or drafting to establish de facto membership.
- The Court concluded plaintiff failed to show a de facto advisory committee and thus lacked Article III informational standing; it granted defendants' motion to dismiss and denied plaintiff's alternative motion to compel further discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a de facto FACA advisory committee existed | The Infrastructure Council functioned as a group advising the administration and thus was a FACA committee | Only preliminary planning communications occurred; no group was established or utilized to render collective recommendations | No de facto committee existed; FACA not triggered |
| Whether plaintiff has Article III informational standing under FACA | Plaintiff was denied information it is entitled to because a FACA committee existed or was utilized | No FACA obligations arose because no committee rendered group advice, so no informational injury occurred | Plaintiff lacks standing because no actionable FACA violation was shown |
| Adequacy of defendants' jurisdictional discovery responses | Responses were incomplete and the verification insufficient; further discovery should be compelled | Responses reasonably answered the narrow interrogatories; verification explained the search and is adequate | Responses were adequate; motion to compel denied |
| Scope of FACA application to pre-charter/planning contacts | Group planning that produced ideas or informed policy should trigger FACA | Initial logistical and scope-setting discussions are exempt and do not equate to collective advisory activity | FACA does not reach preliminary planning communications absent group advice/recommendations |
Key Cases Cited
- Public Citizen v. Department of Justice, 491 U.S. 440 (Sup. Ct.) (FACA protects the public's right to scrutinize advisory committee activities)
- Association of American Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (FACA applies when advice is sought or given as a group)
- In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) (de facto member doctrine requires substantive participation such as voting/drafting; narrow FACA application due to separation-of-powers concerns)
- Byrd v. EPA, 174 F.3d 239 (D.C. Cir. 1999) (defining "established or utilized" and management/control test)
- Freedom Watch, Inc. v. Obama, 930 F. Supp. 2d 98 (D.D.C. 2013) (stakeholder meetings that solicited individual views did not create a de facto FACA committee)
- Judicial Watch, Inc. v. Clinton, 76 F.3d 1232 (D.C. Cir. 1996) (FACA does not apply to every informal group of advisors)