414 F.Supp.3d 61
D.D.C.2019Background
- VoteVets Action Fund sued the Department of Veterans Affairs and the VA Secretary under the Federal Advisory Committee Act (FACA), alleging a three-person group (Ike Perlmutter, Bruce Moskowitz, Marc Sherman — the "Mar-a-Lago Council") collectively advised the VA starting in early 2017 and that the VA failed to satisfy FACA's disclosure and transparency requirements.
- The complaint relies on FOIA-obtained emails and a public statement, alleging ~30 communications and involvement in projects (e.g., a mobile platform with Apple, EHR work), recruiting assistance, and NDAs.
- Defendants moved to dismiss for lack of standing and for failure to state a FACA claim, arguing VoteVets did not plausibly allege the three were a FACA "advisory committee."
- The Court treated the standing question separately (assuming for standing purposes that the group was an advisory committee) and found VoteVets had informational standing based on alleged denial of statutorily required disclosures.
- On the merits, the Court held VoteVets failed to plausibly allege that the three men were either "established" (formed/selected by the government) or "utilized" (subject to agency management/control) as required by FACA and controlling precedent, and therefore dismissed the complaint for failure to state a claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (informational injury) | VoteVets was deprived of FACA-required disclosures and thus suffered an informational injury. | If the trio is not a FACA committee, VoteVets suffered no cognizable informational injury. | Court: VoteVets has standing; for standing analysis the court assumes the committee exists. |
| Whether the group was "established" by the President/agency | The President named Perlmutter (and allegedly the others) and VA officials met with them, showing formation. | Off-the-cuff press remarks and meetings do not show formal government formation/selection required by FACA. | Court: Plaintiff failed to plausibly allege the government "established" the group. |
| Whether the group was "utilized" (agency control/management) | Repeated contacts, project involvement, NDAs, and VA solicitation of advice show utilization. | Influence over the agency is not the test — agency must exercise actual management or control over the group. | Court: Plaintiff failed to plausibly allege the VA "utilized" the group (no allegations of strict management/control). |
| Sufficiency of contacts/influence allegations | Volume of meetings, emails, and examples of influence show a FACA-covered committee. | Number of contacts or influence is insufficient absent evidence of government formation or control. | Court: Frequency/influence allegations insufficient; influence by the group over the agency undermines inference of agency control. |
Key Cases Cited
- Public Citizen v. Dep't of Justice, 491 U.S. 440 (1989) (narrow reading of "utilized" to avoid covering all informal advice to gov't)
- Byrd v. U.S. E.P.A., 174 F.3d 239 (D.C. Cir. 1999) (distinguishes "established" vs "utilized" and requires government formation or control)
- Judicial Watch, Inc. v. U.S. Dep't of Commerce, 583 F.3d 871 (D.C. Cir. 2009) (for standing analysis, courts assume alleged committee exists)
- Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (government control, form, and selection are key in FACA analysis)
- Wash. Legal Found. v. U.S. Sentencing Comm'n, 17 F.3d 1446 (D.C. Cir. 1994) (significant influence by the group is insufficient to show agency "utilized" it)
- Animal Legal Def. Fund, Inc. v. Shalala, 104 F.3d 424 (D.C. Cir. 1997) (agency must exercise actual management or control to trigger FACA)
- Food & Water Watch v. Trump, 357 F. Supp. 3d 1 (D.D.C. 2018) (discusses FACA disclosure obligations and probative value of meeting counts)