The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Freedom Watch alleges that 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 that committee, violated the Federal Advisory Committee Act ("FACA"), codified at 5 U.S.C. app. 2, by failing to make publicly available certain records related to the committee. An August 12, 2011 opinion granted the defendants' motion to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a claim with respect to Freedom Watch's FACA and APA claims and denied it with respect to Freedom Watch's claim for mandamus review against the President.*fn1
The opinion also ordered the parties to brief the issue of whether the
alleged committee had ceased meeting following the
enactment of health care reform legislation and whether certain
of Freedom Watch's claims are moot. Because Freedom Watch's claims for
access to meetings and a change in the composition of the committee
are no longer redressable, they will be dismissed as moot. With regard
to Freedom Watch's claim for minutes of the committee's meetings,
which is not moot, the parties will be ordered to show cause why the
government's supplemental memorandum should not be treated as a motion
for summary judgment on that claim.
The background of this case is set out fully in Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28 (D.D.C. 2011) (the "2011 opinion"). Briefly, in a complaint filed in 2009, Freedom Watch alleges that the President established a committee, described as the Obama Health Reform De Facto Advisory Committee ("OHRDFAC"), to gather information and negotiate agreements in support of the proposed health reform legislation enacted in 2010. (Compl. ¶ 7.) Freedom Watch seeks access to the minutes and decisions of the committee, 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" to the committee. (Id. ¶¶ 10, 13-14.) The defendants 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.
The 2011 opinion granted in part and denied in part the defendants' motion to dismiss. As is relevant here, the opinion held that Freedom Watch had alleged sufficiently that the committee qualifies under FACA as an advisory committee and that Freedom Watch might be entitled to mandamus relief against the President. The parties were ordered to brief the issue of whether the alleged committee had ceased meeting in the wake of Congress passing and the President signing the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) and the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) ("ACA" collectively), and, if so, whether Freedom Watch's claims for access to meetings and for a change in the composition of the committee were moot.
The defendants filed a supplemental memorandum maintaining that the alleged committee did not and does not now exist and arguing that the case is therefore moot. (Defs.' Supp. Mem. Concerning the Mootness of Count I ("Defs.' Supp. Mem." at 4-6.) The defendants appended to their memorandum a declaration of Kimberley Harris, a deputy assistant and deputy counsel to the President in the Office of the White House Counsel, who represented that she had reviewed the complaint. (Defs.' Supp. Mem., Declaration of Kimberley Harris ("Harris Decl.") ¶ 1.)
Ms. Harris states upon personal knowledge that various individuals and entities "attended meetings at the White House, at times in groups, to express their views of health care reform," but that the entity described by Freedom Watch as the OHRDFAC in the complaint "does not exist and has never existed." (Id. ¶¶ 1-3.) The declaration also indicates that the meetings at issue were part of discussions held at the White House, videos of which were made publicly available online. (Id. ¶ 2.)
Freedom Watch filed a response to the defendants' supplemental memorandum in which it argues that the declaration is not credible and requests discovery in the form of a deposition of Ms. Harris. (Pl.'s Resp. to Defs.' Supp. Mem. ("Pl.'s Resp.") at 2-4.) Plaintiff appended to its response two press articles on the topic of citizens' distrust of government. Freedom Watch subsequently moved for an order to show cause why defendants should not be held in contempt, arguing that the defendants' memorandum failed to respond to the question on which supplemental briefing was ordered. (Pl.'s Mot. for Order to Show Cause.)
Jurisdiction in the federal courts is limited under Article III of the Constitution to the adjudication of actual, ongoing cases or controversies. Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C. Cir. 2011). If a case is moot, it must be dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1).
Fed. R. Civ. P. 12(b)(1); Sierra Club, 648 F.3d at 852 ("It has long been settled that a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.") (internal quotations omitted). "A case is moot when 'the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated' in circumstances where 'it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.'" United States v. Phillip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009) (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)). "[T]he 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). In determining whether jurisdiction exists, not only the allegations in the complaint but also materials outside the pleadings may be considered. EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 n.3 (D.C. Cir. 1997); 5B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and Procedure § 1350 (3d ed. 2011).
The requirement of a live case or controversy exists throughout the litigation. "If events outrun the controversy such that the court can grant no meaningful relief, the case must be dismissed as moot." McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001). Thus, even assuming that Freedom Watch's FACA claims could have been redressed at the time the complaint was filed, Freedom Watch is entitled to maintain this action only if it demonstrates that the relief it seeks is still available. While the 2011 opinion held that Freedom Watch had alleged sufficiently that the committee at issue qualifies under the FACA as an advisory committee, it did not finally resolve the existence of the committee or the alleged committee's current status.
The allegations in Freedom Watch's complaint themselves support a finding that the alleged de facto committee no longer meets. The complaint proposed that "the goal" of the committee allegedly established by President Obama was "gathering information and negotiating agreements that will lead to the passage of President Obama's proposed Health Reform legislation." (Compl. ¶ 7.) The complaint did not posit any mandate or tasks that the committee possessed that would outlast the passage of the relevant legislation, which occurred in 2010. Although Freedom Watch contends that "ongoing meetings and/or communications must still be taking place, since implementation of what has become known as 'Obamacare' involves thousands of regulations, and there is much at stake concerning the implementation of 'Obamacare'" (Pl.'s Resp. at 1), "[i]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss." Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Srvc., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (citing Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000)). Nevertheless, Freedom Watch's briefing fails to make clear that any "ongoing meetings and/or communications" (Pl.'s Resp. at 1) take place in a committee with the same organized structure and fixed membership as the OHRDFAC allegedly has. Moreover, Freedom Watch has not demonstrated that the change in specific purpose -- from ensuring passage of to implementing regulations associated with health care ...