The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Freedom Watch brings this action against the President of the United States, an entity styled in the complaint as the Obama Health Reform De Facto Advisory Committee, and the unknown non-federal employee members of the committee, alleging that the committee was subject to and failed to comply with the requirements of the Federal Advisory Committee Act ("FACA"), codified at 5 U.S.C. app. 2. The defendants have moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted.*fn1
Although the FACA does not provide a private right of action to enforce its provisions, and Freedom Watch cannot proceed under the Administrative Procedure Act ("APA"), Freedom Watch has alleged sufficiently that the committee at issue qualifies under the FACA as an advisory committee and may be entitled to mandamus relief. The defendants' motion to dismiss therefore will be granted with respect to the Freedom Watch's FACA and APA claims and denied with respect to Freedom Watch's claim for mandamus review against the President.
Freedom Watch alleges that the President established a committee to gather information and negotiate agreements in support of proposed health reform legislation enacted in 2010 as the Patient Protection and Affordable Care Act, Pub. L. 111-148, and the Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152 ("ACA" collectively). (Compl. ¶ 7.) Freedom Watch seeks access to the minutes and decisions of the committee and a listing of all individuals who attended or participated in any committee meetings. Additionally, Freedom Watch seeks 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" to the committee.*fn2 (Id. ¶¶ 10, 13--14.) The defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim, arguing that the FACA does not provide a private right of action, and arguing under Rule 12(b)(6) that the committee is not an advisory committee as defined by the FACA. (Defs.' Mem. of Law in Supp. of Defs.' Mot. to Dismiss Count I of the Compl. ("Defs.' Mem.") at 3, 4 n.2, 7.) The defendants also argue that applying the FACA here would unconstitutionally burden the President's ability to communicate confidentially with his advisors. (Id. at 11-12.)
"On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction." Larsen v. U.S. Navy, 486 F. Supp. 2d 11, 18 (D.D.C. 2007); see also Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). "A Rule 12(b)(6) motion tests the legal sufficiency of a complaint[.]" Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff, id., and "the court must assume the truth of all well-pleaded allegations." Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
I. PRIVATE RIGHT OF ACTION
The mere "fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979). Rather, "private rights of action to enforce federal law must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286 (2001). For a cause of action to exist, a plaintiff must demonstrate that the statute under which it is attempting to proceed reflects Congressional intent to create a private remedy. See id. It is irrelevant that a private right of action may be desirable as a policy matter or compatible with the statute. See id. at 287. The "judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. at 286. Judicial creation of a private right of action conflicts with "'the authority of Congress under Art. III to set the limits of federal jurisdiction.'" Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 165 (2008) (quoting Cannon, 441 U.S. at 747 (Powell, J., dissenting)).
In the wake of Sandoval, several courts in this district have determined that the FACA does not create a private right of action because there is no evidence of Congressional intent to confer a private remedy for FACA violations. See Judicial Watch, Inc. v. U.S. Dep't of Commerce, 736 F. Supp. 2d 24, 30 (D.D.C. 2010) ("Because the FACA does not explicitly confer a private remedy, . . . and because this fact alone is 'determinative,' the court holds that the FACA does not provide the plaintiff with a private right of action." (internal citation omitted)); Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 33 (D.D.C. 2002) (stating that "[n]othing in the language of FACA evidences any intent" to create a private remedy). Freedom Watch has pointed to no authority that could provide a basis for concluding that Congress did, in fact, intend to confer in the FACA a private right of action. Accordingly, Freedom Watch cannot proceed here under the FACA alone.*fn3
Freedom Watch argues that it is alternatively "entitled to enforce FACA's substantive requirements through the judicial review provisions of the APA." (Pl.'s Opp'n to Defs.' Mot. to Dismiss Count One of Pl.'s Compl. at 3.) Plaintiffs alleging violations of the FACA may proceed under the jurisdictional grant in the APA, 5 U.S.C. § 704, which subjects "final agency action for which there is no other adequate remedy" to judicial review. See Judicial Watch, Inc. v. U.S. Dep't of Commerce, 736 F. Supp. 2d at 30-31 (surveying other cases and noting that "a number of courts have allowed plaintiffs to proceed with APA actions based on alleged FACA violations"); Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d at 36-40. The APA provides "a limited cause of action for parties adversely affected by agency action."*fn4
Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006).
An entity cannot be at once both an advisory committee and an agency, however. See Heartwood, Inc. v. U.S. Forrest Serv., 431 F. Supp. 2d 28, 36 (D.D.C. 2006) (noting that an "'advisory committee cannot have a double identity as an agency'" (internal quotation marks omitted) (quoting Wolfe v. Weinberger, 403 F. Supp. 238, 242 (D.D.C. 1975))); Gates v. Schlesinger, 366 F. Supp. 797, 798-99 (D.D.C. 1973) ("The [FACA] utilizes the definition of agency contained in the [APA] . . . . It is significant that the [FACA] contains a separate and distinct definition of an 'advisory committee,' thus supporting the proposition that an advisory committee is not an 'agency.'" (footnote omitted)). Because Freedom Watch argues that the committee at issue is an advisory committee subject to the requirements of the FACA, the committee cannot also qualify as an agency for the purposes of APA review. Thus, the APA does not provide a jurisdictional grant for Freedom Watch's FACA claim against the committee or its members, and the defendants' motion to dismiss will be granted with respect to Freedom Watch's APA claim.
However, Freedom Watch also seeks in its complaint mandamus relief under 28 U.S.C. § 1361. This provision creates subject-matter jurisdiction over an action "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. "[T]he mandamus statute may provide an avenue to remedy violations of statutory duties even when the statute that creates the duty does not contain a private cause of action." Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d at 41-42 (citing Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (if "a plaintiff is unable to bring his case predicated on either a specific or a general statutory review provision, he may still be able to institute a non-statutory review action")). If a federal official ---- including the President ---- has a clear obligation to perform a duty, Nat'l Wildlife Fed'n v. United States, 626 F.2d 917, 923 (D.C. Cir. 1980), the plaintiff has a clear right to relief, and there is no other adequate remedy available to the plaintiff, a court may grant mandamus relief. Council of and for the Blind of Del. Cnty. Valley, Inc. v. Reagan, 709 F.2d 1521, 1533 (D.C. Cir. 1983). "[I]f ...