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Judicial Watch, Inc. v. U.S. Department of Commerce

September 19, 2008

JUDICIAL WATCH, INC., PLAINTIFF,
v.
U.S. DEPARTMENT OF COMMERCE, AND CARLOS GUTIERREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF COMMERCE, DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No.: 12

MEMORANDUM OPINION GRANTING THE DEFENDANTS'MOTION TO DISMISS

I. INTRODUCTION

The plaintiff asks that the court declare that the North American Competitiveness Council ("NACC") and its U.S. component subcommittees are advisory committees subject to and in violation of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. §§ 1-16. The plaintiff also seeks a writ of mandamus compelling the defendants (collectively the "Commerce Department") to comply with the requirements of FACA in relation to the NACC. This matter is before the court on the defendants' motion to dismiss, which the court grants because the plaintiff fails to demonstrate that it has standing to bring its claims.

II. BACKGROUND

A. Factual History

The plaintiff, in its quest to promote government transparency and accountability, has investigated the activities of the Security and Prosperity Partnership of North America ("SPP") and the NACC since approximately July 2006. Compl. ¶¶ 3, 28. In March 2005, President George W. Bush, then-Mexican President Vincente Fox and then-Canadian Prime Minister Paul Martin created the SPP as part of a cooperative effort to address areas of mutual concern to their countries. Id. ¶ 9. In March 2006, the Commerce Department and representatives of the other two governments met with business leaders for input into the SPP's function and discussed the possible creation of the NACC, a council of "high level business leaders from each country" to meet annually with government representatives and "provide recommendations and priorities on promoting North American competitiveness globally." Id. ¶¶ 10, 14.

On June 15, 2006, the Commerce Department and representatives from the other governments met in Washington, D.C. to officially launch the NACC. Id. ¶¶ 11, 14. The NACC is a thirty-five member council from the three countries, and each country selects its members through its own membership selection process. Id. ¶ 15. The defendants designated the Council of Americas and the U.S. Chamber of Commerce to select the NACC's U.S. membership. Id. ¶ 20.

Because it believes that the NACC is governed by FACA, the plaintiff argues that the NACC's meetings must be public and its records and reports must be made available through Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests. Id. ¶¶ 36-37. The plaintiff has sought access to records regarding the NACC via multiple FOIA requests to various federal agencies, including the defendants. Id. ¶ 28. On March 23, 2007, the plaintiff submitted a request to the U.S. Chamber of Commerce to participate in NACC meetings. Id. ¶ 29. The Chamber of Commerce denied that request, stating that NACC meetings are only open to invited officials and members of the Executive Committee of the NACC. Id. ¶ 30. On July 26, 2007, the plaintiff submitted a request to the defendants asking that they acknowledge that the NACC and its U.S. component subcommittees are advisory committees under FACA and demanding that the defendants bring the NACC and its U.S. component subcommittees into compliance with all appropriate laws and regulations. Id. ¶ 31. As of August 10, 2007, the defendants had not responded to the plaintiff's request. Id. ¶ 32. The Department of Commerce allegedly released some responsive documents to the plaintiff on August 28, 2007, and is currently processing the request pursuant to the provisions of FOIA. Defs.' Mot. at 14-15.

B. Procedural History

Dissatisfied with the defendants' response and believing that the defendants' actions violated FACA, on August 10, 2007, the plaintiff brought this suit and a motion for a temporary restraining order ("TRO") or preliminary injunction compelling the Commerce Department to admit the plaintiff to a meeting held ten days later in Montebello, Canada. See generally Judicial Watch, Inc. v. Dep't of Commerce, 501 F. Supp. 2d 83 (D.D.C. 2007). Denying the plaintiff's motion for a TRO on August 16, 2007, the court concluded that the plaintiff had failed to establish either a likelihood of success on the merits or irreparable injury. Id. at 87.

In the complaint, the plaintiff seeks (1) a declaratory judgment stating that the NACC, the 15 member companies that serve as the U.S. component of the NACC and the advisory council established by the U.S. NACC Secretariat are subject to FACA and that the defendants have violated FACA; (2) an injunction barring the defendants from continuing the alleged noncompliance with FACA; (3) mandamus relief ordering the defendants to perform "all nondiscretionary duties required by FACA with respect to the operation of the three groups"; and (4) a permanent injunction requiring the defendants to provide all records and other materials made available to or prepared by or for one of the three groups, including all records that would be exempt from disclosure under certain provisions of FOIA. Compl. ¶¶ 12-14. The defendants move to dismiss for lack of subject-matter jurisdiction on the belief that the plaintiff's allegations do not present a live case or controversy that can be resolved in a federal court. Defs.' Mot. at 1. The court now turns to resolve these issues.

III. ANALYSIS

A. Legal Standard for ...


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