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Judicial Watch, Inc. v. United States Dep't of Commerce

September 7, 2010

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF COMMERCE ET AL., DEFENDANTS.



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

Re Document No. 22

MEMORANDUM OPINION

GRANTING THE DEFENDANTS'RENEWED MOTION TO DISMISS

I. INTRODUCTION

This matter is before the court on the defendants' renewed motion to dismiss. The plaintiff, Judicial Watch, Inc. ("Judicial Watch") seeks declaratory and injunctive relief against the U.S. Department of Commerce ("DOC") and DOC Secretary Gary Locke*fn1 (collectively, the "defendants") based on their alleged noncompliance with the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. 2. Because the plaintiff has failed to plead a facially plausible claim for which relief can be granted, the court grants the defendants' motion to dismiss.

II. BACKGROUND*fn2

A. The North American Competitiveness Council

In March 2005, leaders from the United States, Canada and Mexico held a summit during which the three nations created the Security and Prosperity Partnership of North America ("SPP") to address matters of mutual concern, such as trade, energy and environmental issues. Compl. ¶ 9. In March 2006, former DOC Secretary Gutierrez and his counterparts from Canada and Mexico met with senior business leaders from the three countries to identify priorities for the SPP and to solicit policy recommendations for improving North American economic competitiveness. Id. ¶ 10.

During this meeting, the participants also discussed the creation of the North American Competitiveness Council and its U.S. component subgroups (collectively, the "NACC"). Id. Subsequently, Secretary Gutierrez and his counterparts agreed upon a framework for the NACC, which would provide policy recommendations to the three governments for subsequent action through the SPP. Id. ¶ 11. This framework envisioned the NACC functioning as a conduit between the defendants, their Canadian and Mexican counterparts and the North American business community. Id.

The proposed structure of the NACC was again discussed during a later meeting held in March 2006, between officials from each government and private sector representatives. Id. ¶ 12. Following this meeting, DOC officials met with the Council of the Americas and the U.S. Chamber of Commerce to "formalize the NACC by facilitating interaction between representatives from the three governments and the private sector." Id. ¶ 13. Secretary Gutierrez met with his Canadian and Mexican counterparts in June 2006 to officially launch the NACC.

Id. ¶ 14.

The NACC is composed of thirty-five members of the North American business community. Id. ¶ 15. Canada and Mexico each hold ten NACC seats reserved for representatives from their respective countries, while the United States holds fifteen seats. Id. ¶¶ 17-18. Each country separately determines the selection process for appointing its representatives to the NACC and designates organizations to serve as "Secretariats." Id. ¶¶ 15, 20. For the U.S. delegation, the DOC selected two "business groups," the Council of the Americas and the U.S. Chamber of Commerce to serve jointly as the U.S. NACC Secretariat. Id. ¶ 20. The U.S. NACC Secretariat in turn selects the business organizations that hold seats on the NACC. Pl.'s Opp'n to Defs.' Renewed Mot. to Dismiss ("Pl.'s Opp'n") at 16.

The U.S. component of the NACC consists of an Executive Committee and an Advisory Committee. Compl. ¶ 22. The Executive Committee is comprised of the fifteen U.S. representatives to the NACC, each of which is a large corporation. Id. The Advisory Committee consists of over 200 businesses, associations and chambers of commerce that provide advice and policy recommendations to the Executive Committee. Id. ¶ 23. The NACC meets with the defendants and their Canadian and Mexican counterparts multiple times each year to propose and discuss policy recommendations on issues such as facilitating border-crossing, regulatory cooperation and energy integration. Id. ¶¶ 21, 26.

B. Statutory Framework

The FACA's purpose is "to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures" that result only in "worthless committee meetings and biased proposals." Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 453, 459 (1989). Congress intended the FACA to "ensure that new advisory committees be established only when essential[;] . . . that their creation, operation, and duration be subject to uniform standards and procedures; that . . . the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature." Id. at 446. The FACA places obligations on the conduct of advisory committees falling within its ambit. Id. at 446-47. For example, the FACA requires, inter alia, that advisory committees file a charter, keep minutes of their meetings and file public notices of their meetings. 5 U.S.C. app. 2 ยงยง 9(c), 10(a)(2), 10(c). ...


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