FOOD & WATER WATCH v. DONALD J. TRUMP, in his official capacity as PRESIDENT OF THE UNITED STATES, et al.
Civil Action No. 17-1485 (ESH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
December 10, 2018
ELLEN SEGAL HUVELLE
Plaintiff Food & Water Watch (“FFW”) has sued Donald J. Trump in his official capacity as President of the United States and the U.S. Department of Transportation (“DOT”) for establishing a de facto advisory committee to provide the White House and DOT with advice on infrastructure policy, in violation of the Federal Advisory Committee Act,
BACKGROUND
I. PLAINTIFF’S ALLEGATIONS
Plaintiff initiated this action on July 25, 2017 (Compl., ECF No. 1) and subsequently amended its complaint on November 20, 2017. (Am. Compl., ECF No. 11.) Plaintiff alleges
Plaintiff points to public statements by the President, Secretary of Transportation Elaine Chao, and alleged committee members Richard LeFrak and Steven Roth to support its allegation that the council met with and advised the Administration on infrastructure policy beginning in January 2017. (See id. ¶¶ 32-33, 35.) Before taking office, then-President-elect Trump announced that LeFrak and Roth, both New York City real estate developers, had “already agreed” to oversee an infrastructure committee. (Id. ¶ 22 (quoting Peter Grant & Ted Mann, Donald Trump Asks Richard LeFrak, Steven Roth to Monitor Infrastructure Plan’s Costs, WALL ST. J. (Jan. 16, 2017)).) According to the complaint, “[a] spokesman for LeFrak confirmed that President Trump had made such a request; Roth later described himself as an ‘advisor’ for the Infrastructure Council.” (Id. (quoting Christian B. Bautisa, Vornado’s Roth: ‘Board has a robust succession plan if I get hit by a bus,’ REAL ESTATE WKLY. (Feb. 15, 2017)).) At an event in April 2017, “President Trump said that the Infrastructure Council, headed by his ‘two friends’ LeFrak and Roth[,] would be working with Department of Transportation Secretary Chao to ‘cut a lot of red tape.’” (Id. ¶ 28(c) (quoting Remarks by President Trump & Vice President Pence at CEO Town Hall on Unleashing American Business, THE WHITE HOUSE (April 4, 2017)).)
I’m honored that [President Trump] has asked me together with Richard LeFrak to be an advisor to him and the administration with respect to infrastructure matters. . . . I’m an advisor. I’m not a line executive. I’m not in any way an employee of the government. . . . I know this President means business, and I would hope that I and Richard LeFrak can make a difference.
(Id. ¶ 28(b) (quoting Transcript of Vornado Realty Trust’s CEO Steven Roth on Q4 2016 Results Earnings Call (Feb. 14, 2017)).) In March 2017, LeFrak characterized the council as a group of “gentlemen on the little unofficial advisory council.” (Id. ¶ 27 (quoting Richard LeFrak, Mornings with Maria, Fixing U.S. Infrastructure, FOX BUS. NETWORK (Mar. 13, 2017)).)
Plaintiff alleges that Joshua Harris and William E. Ford, both private equity executives, later joined the Infrastructure Council. (Id. ¶ 25 (citing E.B. Solomont, New York Eyes Outsized Share of $1 Trillion Prize, THE REAL DEAL (March 1, 2017)).) In May 2017, Secretary Chao publicly discussed the council during an on-air interview with LeFrak:
I want to compliment the infrastructure council, you know, because these are leading thought leaders in our country. Richard and others, Steve Roth, Josh Harris, Bill Ford. They are volunteers. They have given up their time and their life’s experience and finding the best way to build our infrastructure for the future.
(Id. ¶ 29 (quoting Interview with Elaine Chao & Richard LeFrak, Rebuilding America with Transportation Secretary Chao & Richard LeFrak, CNBC (May 1, 2017)).)
On July 19, 2017, the President issued Executive Order No. 13805 (“EO 13805”), announcing the establishment of a “Presidential Advisory Council on Infrastructure.” (Am. Compl. ¶ 39.) EO 13805 defined the council’s “mission”:
The Council shall study the scope and effectiveness of, and make findings and recommendations to the President regarding, Federal Government funding, support, and delivery of infrastructure projects in several sectors, including surface transportation, aviation, ports and waterways, water resources, renewable energy generation, electricity transmission, broadband, pipelines, and other such sectors as determined by the Council.
Exec. Order 13805 § 4, 82 Fed. Reg. 34383, 34383 (July 19, 2017). However, shortly thereafter, in August 2017, the White House announced that plans for the council (as well as other councils) would not move forward, and on September 29, 2017, President Trump signed Executive Order No. 13811, revoking EO 13805. (See Am. Compl. ¶¶ 40-41; Exec. Order 13811 § 3, 82 Fed. Reg. 46363, 46365 (Sept. 29, 2017).)
Notwithstanding the ultimate dissolution of the planned committee, plaintiff claims that the Administration “formally adopted a variety of policy recommendations” made by the Infrastructure Council (see Am. Compl. ¶ 3) and developed a non-public 70-page memorandum on the Administration’s plans for infrastructure policy. (See id. ¶ 38 (citing Steven Overly, Cordish: White House Talking with Musk, Prepping Infrastructure Plan, PoliticoPro, Nov. 13, 2017)).) And, although plaintiff initially claimed that the council was an advisory committee within the meaning of FACA, plaintiff amended its complaint after EO 13805 was revoked to claim that the Infrastructure Council was a “de facto” FACA committee.
II. DEFENDANTS’ MOTION TO DISMISS AND SUPPLEMENTAL BRIEFING
Defendants have moved to dismiss the amended complaint for lack of subject-matter jurisdiction and failure to state a claim pursuant to
These discussions led to the issuance of EO 13805, “authorizing the establishment of a Presidential Advisory Council on Infrastructure in the Department of Commerce.” (Mot. at 3 (citing EO 13805 § 2, 82 Fed. Reg. 34383).) Prior to the issuance of EO 13805, the Administration anticipated that “a charter would be executed that would describe the anticipated council’s operation and the responsibilities of its members in greater detail . . . before any members were appointed to the anticipated council and before it began operating as an advisory council.” (Cordish Decl. ¶ 6.) According to Cordish, this process of drafting a charter began in April 2017 and was abandoned before a charter was finalized and before any members were officially appointed. (Id. ¶¶ 6, 8; see also Declaration of James W. Uthmeier ¶ 8, (“Uthmeier Decl.”) ECF No. 8-3.)
In opposition, plaintiff argued that the Court should not consider the Cordish Declaration without permitting limited jurisdictional discovery to determine whether a FACA committee had existed. (See Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss (“Opp’n”), Feb. 14, 2018, ECF No. 16 at 16-18.) The Court subsequently ordered plaintiff to supplement its brief and address
After reviewing the parties’ pleadings, the Court determined that limited jurisdictional discovery was appropriate and ordered plaintiff to submit proposed interrogatories that were narrowly tailored, consistent with Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367 (2004). (See Order, May 23, 2018, ECF No. 23 at 1.) The Court also instructed plaintiff to bear in mind the D.C. Circuit’s subsequent en banc ruling in In re Cheney, which stressed the narrow application of FACA:
Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.
406 F.3d 723, 728 (D.C. Cir. 2005).
Plaintiff proposed an extensive list of interrogatories (Pl.’s 1st Set of Interrogatories Related to Jurisdictional Discovery to Defs., May 29, 2018, ECF No. 24), to which defendants objected. (Notice of Objections to Pl.’s Proposed Interrogatories, June 4, 2018, ECF No. 25). The Court held a hearing at which it rejected plaintiff’s proposed interrogatories as amounting to “unbounded” discovery in violation of the Supreme Court’s holding in Cheney, but instead, it proposed more limited interrogatories targeted to resolving the issue of whether “a FACA committee existed de facto or otherwise.” (Tr. of Hearing, June 6, 2018, ECF No. 29 at 2-3; see
- Between January and August 2017, did any meeting occur involving non-government individuals1 and government employees or only non-government individuals, in which recommendations or advice regarding infrastructure policy was proposed by, or on behalf of, a group or solicited from a group including two or more non-government individuals for the President, Secretary Chao, the Deputy Transportation Secretary, or persons from the White House, the Office of American Innovation, or the Department of Transportation’s political appointees, including acting officials, and their staff?
- If so, identify the dates of those meetings and all non-government participants.
- If so, did any non-government individual have the right to vote or veto any drafted or proposed recommendation, advice, or report?
- If so, did any non-government individual in fact vote on or veto any recommendation or draft any portion of a final or preliminary committee report?
- Was any recommendation, advice, or report regarding infrastructure policy drafted, proposed, or issued by, or on behalf of, the group as a result of these meetings?
- Explain what the “preliminary discussions” that Reed Cordish referred to in ¶ 5 of his declaration involved. Did they consist of meetings, conference calls, or some other form of communication? State the dates of any discussions, identify any non-government individual who participated, and summarize what was discussed during these “preliminary discussions.”
- Was any recommendation, advice, or report regarding infrastructure policy drafted, proposed, or issued by, or on behalf of, the group as a result of these “preliminary discussions”?
- Did any non-government individual have the right to vote or veto any recommendation, advice, or report associated with these “preliminary discussions”?
(Order, June 6, 2018, ECF No. 26 at 1-2.)
In response to Interrogatories 1-5, defendants stated that they had “identified no meeting that meets the criteria described,” i.e., no meeting involving LeFrak, Roth, Harris, and/or Ford “in which recommendations or advice regarding infrastructure policy was proposed by, on or behalf of, a group or solicited from a group” including two or more non-government individuals. (Id. at 9-11.) In response to Interrogatory 6, which asked about the “preliminary discussions” referenced in the Cordish Declaration, defendants explained that the discussions involved identification of LeFrak and Roth as the leaders of the planned council and identification of potential members; discussion of how the anticipated council would be formed and would operate; focus on administrative issues and logistical matters, including FACA compliance and council-member vetting; and discussion of “specific infrastructure policy issues” in order to
Defendants qualified their responses by stating that, because both Cordish and Gribbin no longer worked at the White House Office, their availability was limited. (Id. at 13.) Similarly, in a Verification appended to the responses, White House Information Technology Director Charles C. Herndon stated that the “complete accuracy” of the responses could not be guaranteed because Cordish and Gribbin “no longer work for the government and are outside the White House’s control”; however, Herndon verified “that officials from the White House Office undertook a process to ensure the accuracy of these interrogatory responses to the best of their ability,” including by “consulting with” Gribbin and Cordish. (Id. at 16.)
In its opposition, plaintiff argues that the complaint and the interrogatory responses support a finding that a de facto advisory committee existed. (See Pl.’s Supp. Opp’n to Defs.’ Mot. to Dismiss or, in the Alternative, Mot. to Compel (“Pl.’s Supp. Opp’n”), Aug. 31, 2018, ECF No. 31.) Plaintiff also contends that defendants’ responses to the interrogatories are insufficient, and asks, as an alternative to granting defendants’ motion to dismiss, that defendants
The question now to be decided is whether plaintiff has sustained its burden to proffer sufficient evidence of a de facto advisory committee within the meaning of FACA so that the Court may exercise subject-matter jurisdiction.
LEGAL STANDARDS
I. STANDING AND JURISDICTION
To establish Article III standing, a plaintiff must demonstrate that (1) they have suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision. See NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff may establish an injury-in-fact under a theory of “informational injury” by showing that he or she was not able “to obtain information which must be publicly disclosed pursuant to a statute.” Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998); see also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (recognizing this theory of “informational standing”). Failure to comply with the requirements of FACA gives rise to such an injury. See Pub. Citizen v. DOJ, 491 U.S. 440, 449 (1989) (“[R]efusal to permit appellants to scrutinize [the committee’s] activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue.”); Byrd v. EPA, 174 F.3d 239, 243 (D.C. Cir. 1999) (“According to the Supreme Court, a refusal to provide information to which one is entitled under FACA constitutes a cognizable injury sufficient to establish Article III standing.”).
II. FEDERAL ADVISORY COMMITTEE ACT
FACA was enacted in 1972 “to ensure that new advisory committees be established only when essential and . . . that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain appraised of their existence, activities, and cost; and that their work be exclusively advisory in nature.” Pub. Citizen, 491 U.S. at 446 (citing
Given the serious separation-of-powers concerns inherent in legislation that imposes requirements on executive decision-making, courts interpret FACA narrowly. The executive may, of course, consult with private advisors or stakeholders without triggering FACA. The Supreme Court has therefore admonished that “FACA was enacted to cure specific ills . . . ; although its reach is extensive, we cannot believe that it was intended to cover every formal or informal consultation between the President or an Executive agency and a group rendering advice.” Pub. Citizen, 491 U.S. at 453 & n.8. The key question is whether group advice, as opposed to individual advice, is sought or rendered. See, e.g., Ass’n of American Physicians & Surgeons, Inc. v. Clinton (“AAPS”), 997 F.2d 898, 913-14 (D.C. Cir. 1993).
ANALYSIS
I. DEFENDANTS’ MOTION TO DISMISS
A. What Is a FACA Advisory Committee?
To determine if FACA applies, it must be determined whether a de facto advisory committee existed before the President revoked EO 13805. FACA defines an advisory committees as “any committee . . . established or utilized by the President, or . . . by one or more [federal] agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.”
“It is a rare case when a court holds that a particular group is a FACA advisory committee over the objection of the executive branch.” AAPS, 997 F.2d at 914. Although courts on occasion have found FACA liability despite arguments by the executive that the law did not apply, see, e.g., Nw. Forest Res. Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994) (holding that a group of “technicians who supply decisionmakers with data” was an advisory committee subject to FACA); it is far more often that the government prevails in such cases. See, e.g., Judicial Watch, Inc. v. Clinton, 76 F.3d 1232, 1233-34 (D.C. Cir. 1996) (holding that a “Presidential Legal Expense Trust” was not subject to FACA); Ctr. for Biol. Diversity, 239 F. Supp. 3d at 224-25 (holding that non-government scientists were not de facto advisory committee members); Freedom Watch, Inc. v. Obama, 930 F. Supp. 2d 98, 102 (D.D.C. 2013) (holding that health policy “stakeholder” meetings did not create a de facto FACA advisory committee). Thus, although a de facto advisory committee may be a viable theory, at a minimum, it is difficult to prove.2
The group’s activities are expected to, and appear to, benefit from the interaction among the members both internally and externally. Advisory committees not only provide ideas to the government, they also often bestow political legitimacy on that advice. . . . Advisory committees are not just mechanisms for transmitting policy advice on a particular subject matter to the government. These committees also possess a kind of political legitimacy as representative bodies.
Plaintiff argues that the Infrastructure Council is subject to FACA because it had an organized structure, a fixed membership, and a specific purpose. It is true that these characteristics, among others, can aid courts in determining whether FACA applies. See AAPS, 997 F.2d at 914 (“In order to implicate FACA, the President, or his subordinates, must create an advisory group that has, in large measure, an organized structure, a fixed membership, and a specific purpose.”); Nader, 396 F. Supp. at 1233 n.4 (suggesting that FACA may apply where a group was initiated by a federal official, meets regularly, and has a fixed membership, defined or specific purpose “of providing advice regarding a particular subject,” and “organizational structure (e.g., officers) and a staff”) (quoting OMB Memorandum ¶ 4(a)(1), 38 Fed. Reg. 2306, 2307 (Jan. 23, 1973) (setting forth standards for FACA implementation)). However, these factors, while potentially useful, are not sufficient for determining the existence of a FACA advisory committee. Rather, they are only tools that a court may use to analyze the determinative question of whether a group was in a position to render collective advice on issues of public policy.
What is clear from the case law is that, for an individual to be considered a FACA committee member, he or she must have a “vote in, or if the committee acts by consensus, a veto
B. Plaintiff’s Arguments
Applying these legal principles, the Court concludes that plaintiff’s argument that the Infrastructure Council existed as a de facto advisory committee fails. Plaintiff is correct that four non-government individuals were designated for participation in the Infrastructure Council. In addition, as defendants’ interrogatory responses confirm, there were ongoing discussions between non-government individuals and White House employees in January through July 2017. But, these discussions are not enough to support a finding of a de facto FACA committee, for there is no evidence that the discussions ever matured to the point that there were group discussions regarding infrastructure policy for the purpose of making group recommendations to the executive.
Plaintiff emphasizes the sheer number of meetings and other communications identified in defendants’ interrogatory responses—thirteen over the course of five months. (See Pl.’s Supp. Opp’n at 3.) But the number of meetings is not dispositive, or even particularly probative, especially where, as here, many of these “meetings” were not meetings at all but simply email exchanges or phone calls, which apparently did not take place according to a regular schedule. See, e.g., Nader, 396 F. Supp. at 1232, 1234 (holding that FACA did not “apply to all
More importantly, plaintiff cannot prevail because the Infrastructure Council did not develop to the point that it was “asked to render advice or recommendations, as a group.” AAPS, 997 F.2d at 913-14. The issue of group advice has stymied FACA plaintiffs before. In Freedom Watch, another judge on this Court held that “stakeholder meetings” at which the executive solicited input on healthcare policy did not give rise to a de facto FACA committee. 930 F. Supp. 2d at 101-02 (granting summary judgment to the government). Relying on declarations submitted by defendants, the court found that “the stakeholder meetings [did] not meet the qualifications of FACA because they solicited ‘individual views’ and a broad range of ‘unique perspectives and experiences’ and the members ‘were not asked to, and did not, provide advice or recommendations as a group.’” Id. at 101-02 (quoting a government declaration); see also AAPS, 997 F.2d at 102; Ctr. for Biol. Diversity, 239 F. Supp. 3d at 224-25 (concluding that non-federal scientists were not de facto FACA committee members because their input had been sought on an individual basis).
what sectors of infrastructure would be represented in the council’s membership; what the council’s mission would be, particularly given that the White House was engaged in its own efforts in the area of infrastructure policy; whether the White House would provide financial support to the council; whether the council would have a dedicated staff; what federal entity would provide administrative support to the council; what the end product of the council’s work would be.
(Defs.’ Supp. Br. at 3-4 (quoting Defs.’ Resp. to Interrog. at 11-12).) Any group decisions or recommendations pertained to planning the anticipated committee. (See Defs.’ Resp. to Interrog. at 12 (“Discussions in the period prior to July 19, 2017, when the President issued Executive Order 13805, focused on many of the administrative issues that ultimately were addressed in the Executive Order. . . .”); see also EO 13805 § 4, 82 Fed. Reg. at 34383 (describing the planned council’s mission and focus areas).3) The next step was anticipated to be the drafting of a formal charter, which would describe the committee’s “operation and the responsibilities of its members in greater detail,” but this step was not finalized because EO 13805 was revoked. (Cordish Decl. ¶¶ 6, 8.) Defendants also indicate that their review identified “no meeting at which a group recommendation or group advice regarding infrastructure policy was proposed by or on behalf of, or solicited from, a group including two or more of” the alleged committee members. (Defs.’ Resp. to Interrog. at 10.)
The most reasonable reading of FACA permits initial meetings—including meetings with non-government individuals—to determine the scope and mission of an advisory council before FACA applies. Thus, the language of EO 13805, which broadly identifies the would-be committee’s planned areas of focus, reflects the planning communications that had taken place. See 82 Fed. Reg. at 34383; Defs.’ Resp. to Interrog. at 12-13 (“While some preliminary discussions identified specific infrastructure policy issues, such discussion was for the purpose of identifying topics that would be listed as areas of focus in the description of the council’s mission that would be included in the Executive Order.”).
Plaintiff also incorrectly argues that two communications that occurred after the issuance of EO 13805—an email from Mr. Gribbin to the four alleged committee members on July 20,
Plaintiff mounts various other arguments in an effort to work around the fact that the Infrastructure Council never was actually in a position to develop or render group policy advice. Chief among these arguments is the theory that FACA “applies to the provision of group advice of all kinds, not just policy advice.” (Pl.’s Supp. Opp’n at 6.) This gloss on the relevant case law is overbroad. Courts have held that FACA can apply to “narrative summaries of scientific information” rather than strictly “policy recommendations.” Heartwood v. U.S. Forest Serv., 431 F. Supp. 2d 28, 34-35 (D.D.C. 2006); see also Nw. Forest Res. Council, 846 F. Supp. at 1013 (finding that FACA applied to a group of “technicians” brought together to “supply decisionmakers with data”). However, the cases cited by plaintiff involved the provision, as a group, of information intended to directly inform executive policymaking.4 Despite plaintiff’s protestations, there can be no FACA obligation without some nexus between the group’s purpose and the executive’s policymaking goals. See Judicial Watch, Inc. v. Clinton, 76 F.3d at 1234 (holding that FACA did not apply to a group formed to advise the President on the permissibility
For the same reasons, plaintiff’s reliance on a case from another jurisdiction for the proposition that FACA relief is “appropriate before an advisory committee has completed its function,” is inapposite. (See Supp. Opp’n at 6 (citing Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1309 (W.D. Wash. 1994), aff’d sub nom. Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401 (9th Cir. 1996)).) In Seattle Audubon, the plaintiff had asked the court to order FACA compliance, via injunctive relief, after a committee’s report, which made policy recommendations, had been reviewed and acted upon by the executive. See id. at 1309-10. The court noted that it may be appropriate to order FACA compliance while an advisory committee is still active, but “once a committee has served its purpose, courts generally have not invalidated the agency action even if there were earlier FACA violations.” Id. at 1309. This principle does nothing to solve plaintiff’s central problem, which is that the Infrastructure Council never became operational as a FACA advisory committee.
Plaintiff also argues that the Administration made policy decisions and took actions that “mirror” suggestions made by members of the Infrastructure Council. (See Am. Compl. ¶ 36 (discussing, for example, a White House “fact sheet detailing ways it intended to reduce project permitting time from ten years to two years,” Executive Orders aimed at reducing permitting times for infrastructure projects, and the revocation of the Federal Flood Risk Management Standard).) To the extent that the Administration’s actions reflect advice allegedly received from LeFrak or others, there is no evidence that the Administration’s policy course was influenced by
Plaintiff’s allegations detail other purported Infrastructure Council meetings not among the thirteen “preliminary discussions” identified in defendants’ responses. Plaintiff alleges, based on contemporaneous news reports, that at least three other “encounters and meetings occurred,” including (1) a February 18, 2017 meeting between LeFrak and President Trump to discuss construction of a wall on the Mexican border; (2) a March 8, 2017 meeting on infrastructure at the White House, with LeFrak, Roth, Harris, Ford, Secretary Chao, and possibly Jared Kushner; and (3) a June 7, 2017 speech by President Trump on infrastructure in Cincinnati, attended by LeFrak, Gribbin, and Cabinet members. (Am. Compl. ¶ 33.) These additional events do not give rise to FACA obligations because they did not involve solicitation or provision of group advice on infrastructure policy. The February 18 meeting was between the President and Mr. LeFrak in his individual capacity, and the March 8 meeting involved individuals with no connection to the Infrastructure Council (such as Elon Musk and Lynn Scarlett) and “involved the president hearing views of individuals, not the group advice of an infrastructure advisory council.” (Defs.’ Supp. Reply at 9.) Mr. LeFrak’s attendance at a speech by the President is also of no import; the allegations do not indicate that any advice was solicited, but even if it had been, it would have been from LeFrak on an individual basis. (See id.) On the record before the Court it is clear that any recommendations by LeFrak or others are not, as plaintiff argued before the Court ordered jurisdictional discovery, “more . . . plausibly construed
Finally, plaintiff points to contemporaneous press accounts, prior to the issuance of EO 13805, which suggest that Infrastructure Council members considered themselves to be advisory committee members.5 The statements do not demonstrate that a FACA committee was operational. Rather, they are consistent with the evidence in the record that the group had been convened for preliminary planning activities, and at most the designated individuals gave advice on infrastructure policy not as a group, but as individuals. Indeed, some of plaintiff’s own sources strongly suggest that it was mutually understood that the FACA advisory committee had not yet been established. One account, for example, quotes LeFrak stating that the group’s “assignment is to advise” the President on infrastructure spending, but immediately goes on to state that “LeFrak isn’t discussing the council further because it hasn’t been formed yet, said his spokesman, Steve Solomon.” (Mulholland & Niquette, Trump Ties to Infrastructure Advisers Roth, LeFrak Run Deep, BLOOMBERG NEWS (Feb. 15, 2017) (emphasis added).)
These contemporaneous accounts thus lend support to the Court’s finding that no FACA committee was established or utilized, and, as a result, the Court lacks subject-matter jurisdiction over plaintiff’s claims.6
Plaintiff also argues that, if the Court determines there is insufficient evidence to find that a de facto advisory council existed, the Court should refrain from granting defendants’ motion to dismiss but, instead, it should compel further discovery. “The district court retains ‘considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,’ but it must give the plaintiff ‘ample opportunity to secure and present evidence relevant to the existence of jurisdiction.’” Phx. Consulting Inc., 216 F.3d at 40 (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179-80 (D.C. Cir. 1984). “In order to avoid burdening a sovereign that proves to be immune from suit, however, jurisdictional discovery should be carefully controlled and limited. . . .” Id. (citing Foremost-McKesson, Inc. v. Islamic Repub. of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990)).
Plaintiff contends that the interrogatory responses are insufficient because (1) the government fails to demonstrate that it undertook sufficient efforts to fully respond to the interrogatories and (2) the responses fail to comport with
Defendants also argue that their motion to dismiss should be granted under several additional theories—plaintiff’s claims are unripe or moot, plaintiff fails to establish the Court’s jurisdiction over their mandamus claims against the President, and plaintiff fails to state a claim under the APA upon which relief can be granted. (See Mot. at 24-30.) Because the Court grants defendants’ motion to dismiss for lack of subject-matter jurisdiction, the Court need not address these additional arguments.
Given the Court’s “latitude” in overseeing jurisdictional discovery, Phx. Consulting, 216 F.3d at 40, and the general mandate to “control[] and limit[]” jurisdictional discovery against the executive, id., the Court finds defendants’ responses to be adequate. They answer the questions posed by the Court; notably, they clarify the nature of the “preliminary discussions” at the heart of the jurisdictional question under review. Defendants were not required to explain every detail of their search process; rather, the adequacy of their response is held to a reasonableness standard. See, e.g., Prasad v. George Washington Univ., 323 F.R.D. 88, 93 (D.D.C. 2017) (quoting
Plaintiff also argues that the Verification appended to the responses, signed by White House Information Technology Director Herndon, is deficient because it explicitly states that the “White House Office cannot warrant the complete accuracy of these interrogatory responses
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss, ECF No. 14, will be granted. Plaintiff’s motion in the alternative to compel, ECF No. 31, will be denied.
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 10, 2018