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Center for Arms Control and Non-Proliferation v. Lago

November 15, 2006


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


The Center for Arms Control and Non-Proliferation ("Center") exists to educate Congress and the public regarding the elimination of nuclear weapons. It is intensely interested in the materials that the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction ("Commission") used in developing its report to the President. The Commission, however, promptly dissolved after submitting its report on March 31, 2005, and its documents were transferred to the National Security Council ("NSC") within the Executive Office of the President. Therefore, the Center sues V. Phillip Lago, Executive Secretary of NSC, in mandamus, alleging that the Commission violated the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. 2 (2000), during its short life span and that Mr. Lago, as custodian of Commission documents, must remedy that violation by providing access to the Commission's background materials. Mr. Lago argues that he owes no duty to the Center and asserts that the Court has no jurisdiction over the claim. For the reasons stated below, the Court does not agree with Mr. Lago's arguments. The complaint will be dismissed, however, because the Court concludes that the Commission was not covered by FACA in the first place.*fn1


President George W. Bush established the Commission by Executive Order 13328 dated February 6, 2004. Its purpose was twofold: (1) to examine the Intelligence Community's*fn2 prior assessments of weapons of mass destruction ("WMD") in Iraq, Libya, and Afghanistan; and (2) to examine the Intelligence Community's current capabilities to confront WMD and related threats of the 21st Century. The President directed the Commission to submit a report on its findings and recommendations by March 31, 2005. The President further directed that the "Central Intelligence Agency and other components of the Intelligence Community shall utilize the Commission and its resulting report." E.O. 13328 ¶ 2(d). The Commission was ordered to terminate all operations "within 60 days after submitting its report." Id. ¶ 8.

The Commission presented a 692-page classified report to the President and released a 601-page unclassified version to the public. The Commission ceased to function on May 27, 2005, and all remaining Commission personnel tendered resignations on that date. See Decl. of Arthur Jones (Ex. 1 to Dkt. # 3), ¶ 2. Also on that date, the Commission transferred, as presidential records, all documents in its possession or control to the NSC.*fn3

The Center filed its original complaint against the Commission and Vice Admiral (Ret.) John Scott Redd, the Commission's Executive Director, on April 6, 2005, seven days after the Commission submitted its report to Congress. The complaint was served almost one month later, when the Commission had barely a month before its pre-ordained dissolution. The Defendants filed a motion to dismiss in July 2005. In December 2005, the Center filed an amended complaint, adding Stephen Hadley, who is the Assistant to the President for National Security Affairs, as a third defendant in the case. This Court granted the motion to dismiss the Commission and Vice Admiral (Ret.) Redd on December 15, 2005, but declined to address the claims against Mr. Hadley.*fn4 See Ctr. for Arms Control & Non-Proliferation v. Redd, 2005 WL 3447891, No. 05-682, at *1 n.1 (D.D.C. Dec. 15, 2005). A renewed motion to dismiss has now been fully briefed.


Defendants have moved to dismiss the case under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). When faced with a facial challenge to subject matter jurisdiction under Rule 12(b)(1), the Court applies substantially the same standard of review that is used to evaluate motions under Rule 12(b)(6). See Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999). The court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the court does not need to accept as true the plaintiff's legal conclusions. See Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999). But because a Rule 12(b)(1) motion challenges the court's power to hear the claim, the court must give the plaintiff's factual allegations closer scrutiny than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. U. S., 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Moreover, the court is not limited to the allegations contained in the complaint; it may consider materials outside the pleadings to determine whether it has jurisdiction. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).


FACA was "born of a desire to assess the need for the 'numerous committees, boards, commissions, councils, and similar groups'" that advise different portions of the Executive Branch - and that cost large sums of money. Pub. Citizen v. U. S. Dep't of Justice, 491 U.S. 440, 446 (1989). Its purpose is to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature. Id. For these purposes, advisory committees subject to FACA must file a charter, keep detailed minutes of their meetings, provide advance notice of their meetings, open meetings to the public absent a determination that the meeting may be closed in accordance with the Government in the Sunshine Act, make publicly available their records and other documents, be fairly balanced in membership, operate within regulatory guidelines promulgated by the General Services Administration, and terminate no later than two years after establishment unless specifically authorized to continue. 5 U.S.C. app. §§ 9(c), 10(a)-(c), 5(b)(2), 7 and 14(a). Certain committees are expressly exempt from FACA's requirements, including committees composed wholly of officers or employees of the federal Government, id. § 3(2)(c), and committees established or utilized by the CIA, id. § 4(b)(1).


The Center complains that the Commission failed to comply with FACA § 10(c), which requires "[d]etailed minutes of each meeting of each advisory committee" to be kept. Am. Compl. ¶¶ 23-25. It also complains that the Commission failed to comply with § 10(b), which mandates that advisory committees make available for public inspection and copying "the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee . . . ." Id. Finally, the Center complains that the Commission failed to comply with § 11(a) of FACA, which requires that transcripts from agency proceedings be made available to the public. Id. Mr. Lago seeks dismissal of these claims based primarily on a theory that, for a number of reasons, the claims are not justiciable.

A. Jurisdiction, Standing, & Mootness

Mr. Lago challenges this Court's jurisdiction on a variety of bases. Specifically, he contends that he did not owe a duty to the Center under FACA and, as a result: (1) there is no jurisdiction under the Mandamus Act, 28 U.S.C. ยง 1361; (2) principles of sovereign immunity deprive the Court of subject-matter jurisdiction; (3) the Center has no standing; (4) and the Court is without jurisdiction to grant declaratory relief. See Mem. of P&A in Supp. of Def. V. Phillip Lago's Mot. to Dismiss ("Def.'s Mem.") at 3. Mr. Lago also contends that ...

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