930 F. Supp. 2d 98

D.D.C.

2013

FREEDOM WATCH, INC., Plaintiff, v. Barack OBAMA, et al., Defendants.

Civil Action No. 09-2398 (RWR).

United States District Court, District of Columbia.

March 15, 2013.

RICHARD W. ROBERTS, District Judge.

A separate Order accompanies this Memorandum Opinion.

Larry E. Klayman, Law Office of Larry Klayman, Washington, DC, for Plaintiff.

Elizabeth J. Shapiro, Marcia Berman, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Plaintiff Freedom Watch sued the President of the United States, an entity styled in the complaint as the Obama Health Reform De Facto Advisory Committee (“OHRDFAC“), and the unknown non-federal employee members of that committee for alleged violations of the Federal Advisory Committee Act (“FACA“), codified at 5 U.S.C. app. 2, seeking access to information about the membership and meetings of the OHRDFAC. The defendants move for summary judgment¹ on Freedom Watch‘s claim for minutes of the committee‘s past meetings arguing that the OHRDFAC does not exist and that the stakeholder meetings did not create an advisory committee subject to FACA. Because the defendants have shown that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law on the claim for meeting minutes, the defendants’ motion for summary judgment will be granted.

BACKGROUND

The background of this case is set out fully in Freedom Watch, Inc. v. Obama, 807 F.Supp.2d 28 (D.D.C.2011). Briefly, Freedom Watch alleges that the President established the OHRDFAC to gather information and negotiate agreements in support of the proposed health reform legislation enacted in 2010. Compl. ¶ 7. Freedom Watch sought access to the committee‘s meeting minutes and decisions, a listing of all individuals who attended or participated in any committee meetings, advance notice of, and the ability to participate in, any future meetings, and the appointment of “at least one person with a different point of view” than the committee. Compl. ¶¶ 10, 13-14. The claim for minutes of the alleged committee‘s meetings survived the government‘s motion to dismiss and an additional challenge based on mootness.² The defendants’ first supplemental memorandum states that the OHRDFAC and any documents or minutes from the committee‘s meetings never existed. The defendants admit that President Obama and his staff held meetings with individuals and entities who were stakeholders in health care reform. Defs.’ Supp. Mem. Concerning the Mootness of Count 1 at 4-6, Ex. 1, Decl. Of Kimberley Harris (“Harris Decl.“) ¶¶ 2-4. The parties were ordered to show cause why the defendants’ supplemental memorandum should not be treated as a motion for summary judgment on the plaintiff‘s sole remaining claim for minutes of the committee‘s meetings. Freedom Watch, Inc. v. Obama, 859 F.Supp.2d 169, 176 (D.D.C. 2012). The defendant responded that the supplemental memorandum should be treated as a motion for summary judgment and Freedom Watch opposed, arguing in part that the Harris Declaration was insufficient evidence to support the defendants’ claim for summary judgment. A July 13, 2012 memorandum order found the defendants’ evidence to be insufficient to support granting summary judgment to the defendants. See Mem. Order entered July 13, 2012 at 2-3. The defendants were ordered to file a joint status report reflecting whether they would provide further evidentiary support or confer with Freedom Watch about discovery. Id. at 3.

In response to these deficiencies, the defendants filed a second supplemental memorandum arguing that the additional evidentiary support submitted with that memorandum would be sufficient to grant summary judgment to them on the sole remaining claim. Defs.’ Mem. of Law (“Second Supp. Mem.“) at 4-9. The defendants submitted the declaration of Andrew White, a Special Assistant and Associate Counsel to the President, which provides further detail on the stakeholder meetings including a list of stakeholder meetings relating to the healthcare legislation. Id., Ex. 1, Decl. of Andrew Wright (“Wright Decl.“), Ex. A. Freedom Watch responds that the government‘s declarations are based on hearsay and fail to disclose important facts and that the plaintiff is entitled to discovery under Federal Rule of Civil Procedure 56(d). Pl.‘s Opp‘n to Defs.’ Mot. for Summ. J. (“Pl.‘s Opp’ n“) at 2-4.

DISCUSSION

Summary judgment is proper on a claim where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). At the summary judgment stage, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Feirson v. District of Columbia, 506 F.3d 1063, 1066 (D.C.Cir.2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[a] party may not rely merely upon denials in pleadings to show a genuine dispute, but must come forward with specific evidence that reveals a genuine factual dispute.” Henok v. Chase Home Fin., LLC, Civil Action No. 12-292(RWR), 925 F.Supp.2d 46, 49, 2013 WL 718771, at *2 (D.D.C. Feb. 26, 2013).

FACA defines an advisory committee as “any committee, board, commission, council, conference, panel, task force, or other similar group, ... which is ... established or utilized by the President[.]” 5 U.S.C. app. 2 § 3(2). For the purposes of FACA, “[a]n advisory panel is established when it has been formed by a government agency, and utilized if it is ‘amenable to ... strict management by agency officials.‘” Heartwood, Inc. v. U.S. Forest Serv., 431 F.Supp.2d 28, 34 (D.D.C.2006) (quoting Pub. Citizen v. U.S. Dep‘t of Justice, 491 U.S. 440, 457-58 (1989)). Because “a group is a FACA advisory committee when it is asked to render advice or recommendations, as a group, and not as a collection of individuals[,]” “an important factor in determining the presence of an advisory committee [is] the formality and structure of the group.” Ass‘n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 913-14 (D.C.Cir.1993). Criteria relevant to determining if a group has sufficient formality and structure to qualify as a FACA advisory committee include whether the group has 1) “an organized structure,” 2) “a fixed membership,” and 3) “a specific purpose.” Id. at 914. The D.C. Circuit has recognized that groups generally fall on a continuum:

At one end one can visualize a formal group of a limited number of private citizens who are brought together to give publicized advice as a group. That model would seem covered by the statute regardless of other fortuities such as whether the members are called “consultants.” At the other end of the continuum is an unstructured arrangement in which the government seeks advice from what is only a collection of individuals who do not significantly interact with each other. That model ... does not trigger FACA.

Id. at 915; see also Heartwood, 431 F.Supp.2d at 35 (stating that where “the President or an agency seeks to ‘provide[] a mechanism and sounding board to test the pulse of the country by conferring directly or indirectly with ... widely disparate special interest groups’ and encourage an ‘exchange of views,’ the resulting meetings are not subjected to the requirements of the FACA” (quoting Nader v. Baroody, 396 F.Supp. 1231, 1234 (D.D.C. 1975))).

The defendants’ initial memorandum furnished insufficient information to warrant summary judgment for the defendants. In particular, the defendants’ evidence did not “present any reasonably full list of the names of the participants [in the stakeholder meetings],” “provide enough detail to determine the number and formality of meetings or whether the same individuals and entities attended the meetings with regularity[,]” or “provide enough details to permit an assessment of whether the individuals who participated in the health care reform discussions were asked to render collective advice or produce any other type of collaborative work product.” Mem. Order entered July 13, 2012 at 2-3. The defendants now provide further evidence that the stakeholder meetings do 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.” Second Supp. Mem., Ex. 1, Wright Decl. ¶¶ 8, 11. The government proffers the Wright declaration which includes details about the healthcare stakeholder meetings, a report from the White House Forum on Health Reform, and an appendix which provides the dates and descriptions of meetings that then-Director of the White House Office of Health Reform Nancy-Ann DeParle held with stakeholders regarding health reform. See id., Ex. 1, Wright Decl. ¶¶ 3-11, Exs. A, B.

In response, Freedom Watch argues that the defendants have not disclosed the specific information which the court ordered. Pl.‘s Opp‘n at 2. However, the government‘s evidence provided the names of the individuals who attended the White House Forum on Health Reform as well as a list of the individuals who attended meetings with the Office of Health Reform from March 2009 to March 2010. See Second Supp. Mem., Ex. 1, Wright Decl., Exs. A, B. These documents also reflect both the number of meetings and the individuals and entities who attended the meetings. See id. Wright‘s declaration, submitted under penalty of perjury, states that the purpose of the stakeholder meetings was not to “obtain[] consensus advice or recommendations from group deliberation[.]” Instead, the participants were only to provide “individual views[,]” and “were not asked to, and did not, provide advice or recommendations as a group.” Id., Ex. 1, Wright Decl. ¶¶ 8, 11. Wright‘s “review of White House documents, ... consultation with White House staff present at many of the meetings[,] ... and [knowledge of] materials reviewed for submission to Congress[,]” id. ¶ 2, provide a sufficient basis to support his declaration.³ Finally, the defendants’ submissions reflect that the individuals attending these meetings varied significantly and there is no evidence that the defendants had the goals of attaining collective advice or collaborative work product from the stakeholder meetings. The defendants have provided sufficient evidence to support their claim that the alleged committee does not fall within the scope of FACA.

Freedom Watch proffers no specific evidence to rebut the defendants’ claims but only requests discovery under Rule 56(d). Rule 56(d) provides that

[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

Fed.R.Civ.P. 56(d). The decision to grant or deny relief under Rule 56(d) is within the discretion of the district court. Seed Co., Ltd. v. Westerman, 840 F.Supp.2d 116, 121 (D.D.C.2012) (citing Stella v. Mineta, 284 F.3d 135, 147 (D.C.Cir.2002)). A Rule 56(d) affidavit “cannot be a generalized, speculative request to conduct discovery but must demonstrate that further specified discovery will defeat a summary judgment motion, ... and show what facts [the nonmoving party] intend[s] to discover that would create a triable issue and why he could not produce them in opposition to the motion.” Butler v. Schapiro, 839 F.Supp.2d 252, 258 (D.D.C.2012) (internal citations and quotation marks omitted); see also Seed Co., 840 F.Supp.2d at 121 (stating that the nonmovant “‘must state by affidavit the reasons why he is unable to present the necessary opposing material‘” (quoting Cloverleaf Standardbred Owners Ass‘n, Inc. v. Nat‘l Bank of Wash., 699 F.2d 1274, 1278 n. 6 (D.C.Cir.1983))). Under Rule 56(d), “[c]onclusory allegations without any supporting facts are not sufficient to justify additional discovery.” Butler, 839 F.Supp.2d at 258 (internal quotation marks omitted). Further, “[w]here ... plaintiff offers no reason to doubt [the declarants‘] veracity, discovery under Rule 56(f) may not be used to test [their] credibility.”⁴ Citizens for Responsibility and Ethics in Wash. v. Leavitt, 577 F.Supp.2d 427, 434 (D.D.C.2008) (analyzing a request for discovery under the earlier version of Rule 56).

Here, Freedom Watch seeks discovery of documents and materials relating to the alleged “advisory committee meetings” and depositions of persons who attended the meetings. Pl.‘s Opp‘n, Ex. 1, FRCP Rule 56(d) Aff. of Larry Klayman in Supp. of Pl.‘s Opp‘n to Defs.’ Mot. for Summ. J. ¶¶ 2-4. Freedom Watch fails to meet the requirements of Rule 56(d). Freedom Watch has not specified what facts it intends to discover to rebut the government‘s evidence. Instead, Freedom Watch simply states that the defendants “are in sole custody” of the relevant information. Id. ¶ 4. The plaintiff‘s request for discovery is unsupported by any facts and includes only the type of conclusory allegations which are insufficient for gaining relief under Rule 56(d).

CONCLUSION

The defendants have offered facts, unrebutted by any contrary factual showings, sufficient to satisfy their burden to establish that they are entitled to judgment as a matter of law. The plaintiff has not shown any justification for discovery under Rule 56(d). Therefore, the defendants’ motion for summary judgment on the plaintiff‘s claim for meeting minutes will be granted. An appropriate Order accompanies this memorandum opinion.

RICHARD W. ROBERTS

District Judge

Notes

On September 26, 2011 and August 29, 2012, the defendants filed memoranda relating to Freedom Watch‘s claim for copies of meeting minutes. The defendants’ memoranda were ordered to be “treated as a motion for summary judgment on the sole remaining claim for copies of certain meeting minutes.” December 20, 2012 Minute Order.

Freedom Watch‘s other claims were dismissed as moot. .

The plaintiff states that the Wright and Harris declarations are “untimely hearsay” and overly general, and were submitted in bad faith. Pl.‘s Opp‘n at 3 & n. 1. Whatever “untimely” may mean, it presents no factually-based challenge to the accuracy of the information provided in the supplements that was gleaned in part from doubtlessly admissible business records, and the declarations collectively are far from overly general. Further, the plaintiff has provided no factual basis for finding under Rule 56(h) that the declarations were submitted in bad faith.

Freedom Watch alleges, with no factual support, that the defendants’ declarations are “false and misleading[.]” Pl.‘s Opp‘n at 3.

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