992 F.3d 1097
D.C. Cir.2021Background:
- VoteVets sued under the Federal Advisory Committee Act (FACA), alleging a so‑called “Mar‑a‑Lago Council” (Ike Perlmutter, Bruce Moskowitz, Marc Sherman) advised the Department of Veterans Affairs (VA) for ~1.5 years.
- Plaintiff alleges President‑elect Trump announced forming a group to help VA and identified Perlmutter as involved; the trio thereafter met with VA officials and advised on projects (suicide prevention campaign, mobile app, device registry, EHR contract, privatization, etc.).
- Council meetings were not publicly announced or open, no minutes or documents were disclosed, and no FACA charter or public records were produced—alleged violations of FACA disclosure and openness requirements.
- The district court dismissed for failure to state a claim, concluding the complaint did not plausibly allege the group had the structure of a FACA advisory committee nor that the federal government “established” or “utilized” it.
- The D.C. Circuit, accepting the complaint’s allegations as true at the pleading stage, held VoteVets plausibly alleged the Council had an organized structure, fixed membership, and specific purpose, and plausibly alleged it was "established" by the President (sufficient to invoke FACA).
- The court reversed and remanded for further proceedings; it did not decide the separate "utilized" question (left for discovery/record development).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the group had the structural attributes of a FACA "advisory committee" (organized structure, fixed membership, specific purpose) | The three met and acted as a unit, called themselves a team, gave joint recommendations on VA policy and projects | The group lacked formality and was just three individuals offering advice; not a structured committee | Court: Plausibly alleged—sufficient at pleading stage that the trio formed an advisory committee |
| Whether the group was "established" by the federal government | President‑elect’s public statement and subsequent meetings with VA officials show the President/VA established the group and selected members | President’s remarks were general; members organized themselves and were not formally selected by government | Court: Plausibly alleged—circumstantial evidence suffices at pleading stage that the President established the group |
| Whether the group was "utilized" (subject to government management or control) | Council exercised influence over VA decisions and thus was utilized by the government | The agency did not exercise control over the Council; the Council may have controlled the agency instead | Court: Not decided—finding of establishment made resolution of utilization unnecessary and left for later proceedings |
| Standing to sue under FACA (informational injury) | VoteVets alleges FACA disclosure harms (lack of records/minutes/charter) | Defendants argued lack of standing | Court: VoteVets has standing to bring the FACA claim |
Key Cases Cited
- Pub. Citizen v. Dep't of Justice, 491 U.S. 440 (explains FACA’s purposes and that it does not reach all executive consultations)
- Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (defines advisory committee structure: organized, fixed membership, specific purpose)
- Byrd v. EPA, 174 F.3d 239 (D.C. Cir. 1999) (explains when a committee is "established" by the government)
- Wash. Legal Found. v. U.S. Sentencing Comm'n, 17 F.3d 1446 (D.C. Cir. 1994) (defines "utilized" as subject to government management or control)
- Food Chem. News v. Young, 900 F.2d 328 (D.C. Cir. 1990) (committee not "established" where private actors selected members)
- Ashcroft v. Iqbal, 556 U.S. 662 (articulates pleading standard for plausible claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (standard for plausibility at motion to dismiss)