807 F. Supp. 2d 28
D.D.C.2011Background
- Freedom Watch sues the President and an alleged advisory committee connected to ACA health reform efforts under FACA, seeking access to meetings/minutes and participant list.
- The defendants move to dismiss for lack of jurisdiction and failure to state a claim, arguing FACA has no private right of action and the committee isn’t a FACA advisory committee.
- The court may consider mandamus relief under 28 U.S.C. § 1361 because mandamus can remedy statutory duties even without a private remedy, and the President may be subject to mandamus.
- The committee’s purpose is to gather information and negotiate health reform, with alleged participation by non-federal employees, suggesting some formality and structure.
- The court must determine whether the committee qualifies as a FACA advisory committee and whether mandamus against the President is appropriate, while considering potential mootness if the committee ceases meetings.
- The court ultimately grants the motion to dismiss the FACA and APA claims but denies dismissal as to mandamus against the President, with supplemental briefs later ordered on mootness questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Private right of action under FACA | Freedom Watch contends FACA creates a private remedy. | Defendants contend FACA lacks a private right of action. | FACA does not create a private right of action. |
| APA jurisdiction for FACA claims | APA may authorize judicial review for FACA violations. | APA does not provide jurisdiction because the committee is not an agency under APA. | APA does not provide jurisdiction for the FACA claim. |
| Mandamus viability against the President | Mandamus may compel performance of a statutory duty. | No clear statutory duty or entitlement shown. | Mandamus review may proceed; dismissal on jurisdictional grounds premature. |
| Whether the committee is a FACA advisory committee | Non-federal participants and structured participation suggest advisory committee. | Lack of sufficient structure could negate advisory status; evidence is insufficient at pleading stage. | Complaint plausibly alleges advisory committee status; motion to dismiss denied on this ground. |
Key Cases Cited
- Cannon v. Univ. of Chi., 441 U.S. 677 (U.S. 1979) (private right of action must be created by Congress)
- Alexander v. Sandoval, 532 U.S. 275 (U.S. 2001) (private rights of action require Congressional intent to create a private remedy)
- Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (U.S. 1989) (separation of powers concerns in FACA applications)
- Clinton v. Jones, 520 U.S. 681 (U.S. 1997) (presidential confidentiality and separation of powers considerations)
- Cheney v. U.S. Dept. of Justice, 406 F.3d 723 (D.C. Cir. 2005) (advisory committees vs. agencies; formality/structure analysis)
- AAPS v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (criteria for determining advisory committee status under FACA)