I. INTRODUCTION
This case involves a dispute over the public transparency obligations of the Drone Advisory Committee ("DAC"), an advisory committee created by the Federal Aviation Administration ("FAA") to address the challenges associated with the integration of drones in the National Airspace System ("NAS"). Plaintiff the Electronic Privacy Information Center ("EPIC") has a particular interest in the privacy concerns posed by drones, and has engaged the FAA on that issue on multiple occasions in the past few years. In this case, EPIC alleges that the DAC, its subcommittee (the DAC Subcommittee, or "DACSC"), and three DAC task groups active between 2017 and 2018 violated the public record requirements of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2, by failing to make available records of their activities pursuant to the Act. EPIC also alleges that the DACSC and DAC task groups failed to comply with FACA's open meeting requirements, by engaging in secret meetings closed to the public.
EPIC initially brought claims against the FAA, the Department of Transportation
II. BACKGROUND
A. Advisory Committee Transparency Obligations Under FACA
Enacted in 1972, the Federal Advisory Committee Act, Pub. L. No. 92-463,
With respect to the open meeting requirement, FACA provides that "[e]ach advisory committee meeting shall be open to the public,"
B. Creation of the DAC
Drone availability and use in the United States has steadily increased over the past few years. U.S. drone sales more than doubled between 2016 and 2017, with commercial drones representing a growing share of the drone market. Compl. ¶ 20, ECF No. 1. In response to this rapidly expanding drone use, the FAA announced the formation of the DAC in May 2016.
The FAA issued Terms of Reference to guide the operation of the DAC. See
C. Operation of the DAC Between 2016 and 2018
The DAC officially met six times between September 2016 and March 2018. See generally Compl. ¶¶ 54-92. Each meeting of the DAC was announced in advance and held open to the public. See generally
1. September 16, 2016 to January 31, 2017
At the first meeting of the DAC on September 16, 2016, the Committee discussed a number of administrative matters, including regulatory issues and procedures it would follow going forward. See generally Sept. 16, 2016 DAC Meeting Minutes, Compl. Ex. 4. The DAC identified several action items at the end of the meeting, including to "[e]stablish a standing DAC Subcommittee (DACSC) ... [and] task the DACSC to establish a ranked set of priorities among the remaining drone integration issues the DAC identified at its inaugural meeting," and to "[e]stablish a task group to develop a minimum set of requirements ... that operators can follow to gain access to airspace."
Following the meeting, the FAA published detailed Terms of Reference for the DACSC on October 28, 2016. DACSC Terms of Reference, Compl. Ex. 6. The DACSC Terms of Reference explained that the DACSC's purpose was to "support the DAC in developing consensus-based recommendations to the FAA on issues related to the integration of UAS into the nation's airspace."
The DACSC Terms of Reference also identified the DACSC's role in monitoring the activities of the various task groups to be set up by the DAC. The DACSC was to "provide guidance and oversight to the Task Groups," which the Terms of Reference defined as "shorter-lived groups established to forge consensus-based recommendations in response to specific taskings
Between its first meeting on September 16, 2016 and its second meeting on January 31, 2017, the DAC also established its first two task groups, Task Group 1 and Task Group 2. Compl. ¶ 59. Task Group 1 was set up as the "Roles and Responsibilities" task group, charged with evaluating the relative roles and responsibilities of federal, state, and local government actors in regulating drones. See January 31, 2017 DAC Meeting Minutes at 3, Compl. Ex. 5. Task Group 2, the "Access to Airspace" task group, was charged with evaluating access to airspace requirements for drones. See
2. January 31, 2017 to May 3, 2017
On January 31, 2017, the DAC held its second official meeting.
Following the January 31, 2017 meeting, the FAA issued final tasking statements for Task Group 1 and Task Group 2 on February 10, 2017. See Task Group 1 Tasking Statement, Compl. Ex. 7; Task Group 2 Tasking Statement, Compl. Ex. 8. Task Group 1 was asked to evaluate the relative role and responsibilities of the federal, state, and local governments in regulating drone operations in low-altitude airspace. Task Group 1 Tasking Statement at 1. The tasking statement suggested particular issues the task group could address, and sets of recommendations the task group could develop in response to its task. See
Between the January 31, 2017 and May 3, 2017 meetings of the DAC, both the DACSC and task groups 1, 2, and 3 conducted meetings and engaged in official committee business. Compl. ¶ 65. None of the meetings were publicly noticed or announced.
3. May 3, 2017 to April 11, 2018
Between May 3, 2017 and the filing of the Complaint on April 11, 2018, the DAC met another four times.
As with the prior meetings of the DAC, both the DACSC and the three DAC task groups conducted meetings and engaged in official committee business between May 3, 2017 and April 11, 2018. And while the DACSC and DAC task group reports provided at each public DAC meeting gave some insight into the work conducted by each, the DACSC and DAC task group meetings remained unannounced and closed to the public during that time. Compl. ¶¶ 71-72, 79-80, 89-90.
D. Procedural History
On March 20, 2018, EPIC sent the FAA, DOT, DAC, and RTCA a request for all records of the DAC and DAC subcomponents required to be made available to the public under 5 U.S.C. App. 2 § 10(b).
III. LEGAL STANDARD
A. Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and it is generally presumed that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. ,
It is the plaintiff's burden to establish that the court has subject matter jurisdiction over his or her claims. Lujan v. Defs. of Wildlife ,
B. Failure to State a Claim
The Federal Rules of Civil Procedure require that a complaint contain a "short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), that "give[s] the defendant fair notice of what the ... claim is and the grounds upon which it rests," Erickson v. Pardus,
Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
IV. ANALYSIS
Defendants move to dismiss EPIC's claims for lack of subject matter jurisdiction and failure to state a claim. See Defs.' Mot. Dismiss at 1. The Court first reviews Defendants' arguments that it lacks subject matter jurisdiction to consider EPIC's FACA claims, DJA claim, APA open meeting claims, and APA claims against the DAC, before reviewing Defendants' argument that the Complaint fails to state a claim as to the remaining APA claims. The Court ultimately agrees with Defendants' arguments on subject matter jurisdiction, but disagrees that EPIC fails to state a claim as to all of its remaining APA claims. The Court accordingly grants in part and denies in part the motion to dismiss.
A. Subject Matter Jurisdiction
First, Defendants move to dismiss EPIC's FACA claims, DJA claim, and APA claims premised upon the DACSC and DAC task groups' alleged failure to comply with FACA's open meeting requirements for lack of subject matter jurisdiction. See Defs.' Mem. Supp. Mot. Dismiss at 2, ECF No. 16-2. Defendants also argue that EPIC cannot bring claims against the DAC under the APA because the APA only provides for judicial review of "agency action."
1. FACA Claims
EPIC brings two claims for violation of FACA: Count I, for failure to open meetings
In Alexander v. Sandoval ,
Defendants argue in their motion to dismiss that courts to have addressed the issue since Sandoval have "consistently held that 'FACA does not provide a cause of action.' " Defs.' Mem. Supp. at 19 (quoting Ctr. for Biological Diversity v. Tidwell ,
As Defendants point out in their reply brief, courts to have addressed the availability of a private right of action under FACA after Sandoval was decided have consistently found the statute not to create such a right. Defs.' Reply at 23; see, e.g., Ctr. for Biological Diversity ,
2. DJA Claim
Count VII of the Complaint is a claim pursuant to the DJA. Compl. ¶¶ 138-39. Defendants argue that this DJA claim should be dismissed because the Declaratory Judgment Act does not provide a private right of action, but rather provides a judicial remedy premised on another judicially remediable right. Defs.' Mem. Supp. at 18. The Court agrees.
The Declaratory Judgment Act does not provide an independent source of federal jurisdiction. Ali v. Rumsfeld ,
Defendants argue that EPIC's DJA claim should be dismissed for lack of subject matter jurisdiction because the DJA does not confer a private right of action. Defs.' Mem. Supp. at 18. EPIC retorts that it is "still entitled to seek [declaratory] relief on the basis of its remaining claims." Pl.'s Mem. Opp'n at 34. While that is true, such relief may be sought in EPIC's prayer for relief rather than as a separate claim. The Court accordingly dismisses Count VII of the Complaint and will simply construe EPIC's request for a declaratory judgment as a portion of its prayer for relief.
3. APA Open Meeting Claims
Next, EPIC brings two APA claims for violations of FACA's open meeting requirements, Counts II and III. Compl. ¶¶ 107-17. Defendants argue that EPIC does not have standing to bring those claims because EPIC did not formally request to attend, or otherwise attempt to attend, any meetings of the DACSC or DAC task groups. Defs.' Mem. Supp. at 17. EPIC argues that it has established informational standing to pursue its open meeting claims. Pl.'s Opp'n at 31. The Court is not entirely convinced by Defendants' arguments,
The Court begins with the familiar requirements to establish Article III standing. Standing is a "threshold question in every federal case" that asks "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction." Warth v. Seldin ,
As the D.C. Circuit explained in Friends of Animals , what the plaintiff must show to establish that it suffers the type of harm Congress sought to prevent "may depend on the nature of the statutory disclosure provision at issue."
Here, Defendants do not contest that EPIC has established standing as to its APA claims for failure to release records under FACA. However, Defendants argue that EPIC does not have standing on its open meeting claims because "EPIC did not 'seek' to attend any meetings or otherwise attempt to enforce FACA's open meeting provisions; therefore, EPIC was not 'denied' information available at the
At this juncture, the Court need not conclusively rule on the issue because it finds that, as currently pled, EPIC has not sought to attend the DACSC and task group meetings even under its broader theory of standing. EPIC argues that it sought to enforce the open meeting provisions when it sent its request for records to the FAA and RTCA. Pl.'s Mem. Opp'n at 31. But that request was made in March 2018, after the meetings EPIC identifies in its complaint and alleges should have been made open to the public. Compl. ¶ 95. The Complaint also makes clear that the request was specifically one for records, with EPIC "advis[ing] the FAA, DAC, and RTCA of its records disclosure obligations under the FACA." Id. ¶ 98. By contrast, the Complaint does not allege that EPIC has tried to attend any DACSC or task group meetings, or even that EPIC, before it sent its letter, wanted to attend any such meetings but was prevented from doing so by the lack of information regarding them. See generally Compl.
Finally, Defendants move to dismiss all claims against the DAC itself, which they argue is not capable of "agency action" under the APA. Defs' Mem. Supp. at 27 (quoting
B. Failure to State a Claim
The Court next addresses Defendants' motion to dismiss for failure to state a claim Counts V and VI of the Complaint, EPIC's remaining APA claims tied to the DAC, DACSC, and DAC task groups' alleged failure to comply with FACA's public records requirements. Compl. ¶¶ 124-37. Defendants first argue that the DACSC and task groups are not advisory committees, and thus not subject to FACA's public records requirement. Defs.' Mem. Supp. at 21. Defendants next argue that the DAC itself has complied with FACA's public records requirements, withholding only those "preparatory" and "administrative" records that FACA does not require to be disclosed. Id. at 26. The Court addresses each argument in turn. The Court agrees that EPIC has not plausibly alleged that the DACSC and DAC task groups are advisory committees subject to FACA's public records requirements. However, the Complaint plausibly suggests that not all DAC records required to be made public have been produced, and the Court accordingly finds that EPIC has brought sufficiently plausible APA claims for violation of FACA. The Court accordingly denies the motion to dismiss Counts V and VI.
1. Records of the DACSC and DAC Task Groups
Defendants argue that the DACSC and DAC task groups are not advisory committees under FACA, and therefore are not subject to FACA's recordkeeping requirements. Defs.' Mem. Supp. at 21. EPIC makes two separate arguments in response: first, EPIC contends that all subcommittee records are records of their parent advisory committee under FACA, and therefore that it is entitled to all DACSC and DAC task group records because they are subgroups of the DAC, which Defendants agree is an advisory committee. Pl.'s Mem. Opp'n at 18. Second, EPIC argues that the DACSC and DAC task groups are themselves advisory committees, because they were established or utilized by the FAA and directly issued recommendations to the agency. Id. at 21. The Court first addresses, and rejects, EPIC's broader FACA argument, before reviewing whether the DACSC and DAC task groups are advisory committees under FACA. The Court concludes that they are not, and consequently that FACA does not require disclosure of DACSC and DAC task group records.
a. Subcommittee Records as Component of Parent Committee Records
EPIC argues that because the DACSC and DAC task groups are subgroups-or
FACA defines an advisory committee as "any committee, ... or any subcommittee or other subgroup thereof, which is ... established or utilized by one or more agencies, in the interest of obtaining advice or recommendations." 5 U.S.C. app. 2 § 3(2). And while FACA only mandates that advisory committee meetings be open to the public, id. § 10(a)(1), the Act requires the availability for public inspection of "the records ... or other documents which were made available to or prepared for or by each advisory committee, id. § 10(b) (emphasis added). Interpretive regulations by GSA note that "[i]n general, the requirements of [FACA] ... do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency."
EPIC's argument is based primarily on a textual interpretation of the statute. If the DACSC and DAC task groups are subgroups of the DAC, then, EPIC contends, any record belonging to such subgroup necessarily belongs to the parent group. Pl.'s Mem. Opp'n at 18 (citing Subgroup , Collins English Dictionary (2018) ). And a record "made available to or prepared for or by" a subgroup is thus necessarily "made available to or prepared for or by" the DAC itself.
First, the statutory text itself does not support EPIC's conclusion. "In construing a statute, we look first for the plain meaning of the text." United States v. Barnes ,
Second, both EPIC and Defendants spend a significant portion of their briefs discussing various executive documents and regulations regarding the applicability of FACA to subcommittees. Relying on
On the balance, the Court finds that the supplementary authority discussed by the parties supports the government's interpretation of the statute. The Court initially notes that it need not defer to interpretative regulations of a statute that were not promulgated pursuant to express statutory authority. Judicial Watch, Inc. v. U.S. Dep't of Commerce ,
b. Whether the DACSC and DAC Task Groups Are Advisory Committees
Next, EPIC argues that DACSC and DAC task group records must be made available to the public even if they are not automatically included as records of the DAC because the DACSC and DAC task groups are themselves advisory committees subject to FACA's public records requirements. Defendants argue the Complaint does not show that the DACSC and DAC task groups were established or utilized by the FAA, or that they were intended to provide advice or recommendations directly to the FAA. Defs.' Mem. Supp. at 21-26. EPIC, on the other hand, contends that it has shown that the DACSC and DAC task groups were established or utilized by the FAA and issued recommendations directly to the FAA. Pl.'s Mem. Opp'n at 21-30. The Court finds that, regardless of whether they were "established" or "utilized" by the FAA, the
Pursuant to FACA, a committee (or subcommittee) becomes an advisory committee only when it is, inter alia , "established or utilized ... in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. app. 2 § 3(2). The GSA's interpretive regulations regarding FACA recognize this distinction, and note that FACA generally does not apply to "subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency."
Two cases in this Circuit have addressed the issue. In Nat'l Anti-Hunger Coalition v. Exec. Comm. ,
In Ass'n of Am. Physicians & Surgeons v. Clinton ,
Defendants argue that "[t]he complaint contains no allegation that the FAA intended the DAC subgroups to operate as FACA advisory groups, [ ]that the DAC subgroups directly advised the FAA," Defs.' Mem. Supp. at 23, or that the subgroups' "recommendations would be adopted by the DAC without further deliberations," id. at 25. In their reply, Defendants further argue that, pursuant to Anti-Hunger , FACA should not apply to subcommittees like the DACSC and DAC task groups that only "provided information and recommendations for consideration to a parent committee." Defs.' Reply at 14 (citing Anti-Hunger ,
With respect to the DACSC, the Complaint alleges that the FAA has briefed, educated, and provided guidance and assistance to the DACSC, id. ¶ 32, while an FAA Designated Federal Officer ("DFO") is "required by both the RTCA Charter and the FACA to be intimately involved in the proceedings of the DACSC," including calling and adjourning meetings, approving DACSC agendas, and chairing meetings when directed to do so by the FAA Administrator, id. ¶ 33. But as Defendants point out, see Defs.' Reply at 17, GSA regulations require that agencies designate a DFO to call and adjourn meetings, approve agendas, and chair meetings as requested, for every advisory committee and subcommittee.
Here, EPIC has not alleged any fact that suggests the DACSC was established or utilized directly for the purpose of obtaining advice or recommendations for the FAA. Like the task forces in Anti-Hunger , the DACSC was set up specifically to conduct staff work for the DAC, with a clearly established hierarchical structure mandating for all recommendations to be approved by the DAC. And unlike the working group in Ass'n of Am. Physicians , the
The facts alleged with respect to the DAC task groups dictate the same conclusion. EPIC alleges that the FAA issued detailed tasking statements for each task group, including fact-finding assignments, topics each task group should advise on, and deadlines to deliver recommendations and reports. Compl. ¶ 39. And it also alleges that because the task groups were subcommittees of the DAC, the designated FAA DFO had the same powers over them as over the DACSC. Id. ¶ 41. As discussed above, GSA regulations require agencies to designate a DFO with such authority over the meetings of every subcommittee of an advisory committee. See
Even more so than with the DACSC, these facts point to the conclusion that the DAC task groups did not provide advice or recommendations directly to the FAA and are therefore not advisory committees under FACA. As in Anti-Hunger, the task forces were subordinate to two layers of advisory committees. The D.C. Circuit's suggestion that there is "less reason to focus on subordinate advisers or consultants who [were] presumably under the control of the superior groups," American Ass'n of Physicians,
2. Records of the DAC
In their motion to dismiss, Defendants do not address EPIC's claims as they relate to records of the DAC. See generally Defs.' Mem. Supp. EPIC argues in its opposition that it has plausibly stated a claim with respect to DAC records, Pl.'s Mem. Opp'n at 14, while Defendants contend in their reply that the limited references to records of the DAC (as opposed to the DACSC and DAC task groups) in the Complaint are insufficient to state a claim, Defs' Reply at 3-9. The Court finds that EPIC has sufficiently pled its remaining APA claims as to the DAC for the claims to survive the motion to dismiss.
The Complaint contains only sparse reference to records of the DAC itself. EPIC asks for "[a]ccess to the[ ] nonpublic ... records" of the DAC in the Complaint, Compl. ¶ 3, and contends that "the vast majority of DAC records ... remain closed to the public," id. ¶ 23. EPIC mentions that it requested DAC records from Defendants on March 20, 2018, and never received a reply. Id. ¶¶ 95-99. And in its recitation of Counts IV, V, and VI, EPIC states that Defendants have failed to make available records of the DAC, "including but not limited to records arising out of the DACSC and DAC Task Groups." E.g. id. ¶ 125. In its opposition, EPIC also points to multiple records of the DAC referenced in exhibits to the Complaint, which it alleges have not been made available to the public. Pl.'s Mem. Opp'n at 16-18. These records include documents shared in an online workspace the DAC made available to its members "to facilitate the consensus process of the committee," id. at 16, a legal fact sheet prepared by the FAA, id. at 17, RTCA SC-228 briefing materials, id. , and records of "listening sessions" meetings organized by Task Group 3 and attended by DAC members, id.
In their reply, Defendants argue that the limited reference to the records of the DAC in the Complaint is insufficient to support EPIC's claims, because the allegations referencing the DAC are merely conclusory statements and "bald allegations" of a "conclusory nature." Defs.' Reply at 5 (quoting Iqbal,
Second, the Court does not find persuasive Defendants' argument that it "would be entirely consistent with FACA" for them not to release the documents EPIC identified as improperly withheld from the public in its opposition. Defs.' Reply at 7.
Because EPIC has sufficiently pled its APA claims relating to Defendants' failure to release DAC records, the Court denies the motion to dismiss as to counts V and VI.
V. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 16) is GRANTED IN PART AND DENIED IN PART . The Court dismisses Counts I, II, III, IV, and VII of the Complaint, and dismisses all claims against the Drone Advisory Committee. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Notes
In the motion to dismiss, the government purports to also represent the RTCA and asks for dismissal of all claims against the RTCA. Defs. Mot. Dismiss at 1. However, EPIC having voluntarily dismissed its claims against the RTCA on June 25, 2018, the committee was no longer a defendant at the time of the filing of the motion to dismiss. The Court does not address any arguments made with respect to the RTCA.
In its recital of Counts II and III, EPIC does state that by failing to open DACSC and DAC Task Group meetings to the public, Defendants "have frustrated Plaintiff's longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government's efforts ... to protect the public from drone surveillance." Compl. ¶¶ 110, 122. But this general statement about Defendants frustrating EPIC's mission, which is duplicated in Counts I and IV-VII, is not sufficient to establish the particularized injury needed to create standing.
The Court recognizes that EPIC may be able to sufficiently establish standing by amending the Complaint. However, as discussed below in Part IV.B., the Court separately finds that the DACSC and task groups 1, 2, and 3 are not advisory committees, and thus are not subject to FACA's open meeting requirements. Accordingly, even if EPIC had standing to bring its APA open meeting claims, the Court would still dismiss them for failure to state a claim.
Defendants devote a substantial portion of their motion, and EPIC of its opposition, to discussing whether the DACSC and DAC task groups were "established" or "utilized" by the FAA. See generally Defs.' Mem. Supp. at 21-26, Pl.'s Mem. Opp'n at 21-28. The Court does not address the issue.
In its Notice of Supplemental Authority, EPIC points to a section of the FAA Reauthorization Act of 2018, Pub. L. No. 115-254,
Defendants separately argue that the FAA legal fact sheet identified by EPIC in its opposition is already publicly available on the FAA's website, and provide a link to that fact sheet. See Defs.' Reply at 6 n.2. The Court notes that the link is currently nonfunctional. See Page Not Found, FAA, https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf. Regardless, this is an argument better made on a full record at the motion for summary judgment stage.