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Erik O. Autor, et al v. Rebecca Blank

September 26, 2012


The opinion of the court was delivered by: Amy Berman Jackson United States District Judge


The Department of Commerce ("DOC") and United States Trade Representative ("USTR") have implemented a policy barring federally registered lobbyists from serving on Industry Trade Advisory Committees ("ITACs") -- commissions that provide advice on trade policy to the President through the USTR and the Secretary of Commerce. Plaintiffs are six individuals who previously served or are interested in applying to serve on ITACs, and who were or will be denied membership because they engage in activities that trigger the registration requirements contained in the Lobbying Disclosure Act of 1995 ("LDA"). Compl. [Dkt. # 1] ¶¶ 7--12.

Plaintiffs contend that the policy violates the First and Fifth Amendments of the Constitution of the United States. Id. ¶ 1. They assert that the policy deprives them of a valuable governmental benefit on the grounds that they have exercised their First Amendment right to petition the government for a redress of grievances. Id. ¶¶ 42--49. Therefore, they say, the policy both burdens that right and employs an unconstitutional classification that penalizes those who invoke it. Id.

Defendants have moved to dismiss for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defs.' Mot. to Dismiss ("Defs.' Mot.") [Dkt. # 8] at 2--3. Although the Court finds that at least some of plaintiffs have standing to bring their claims, it will grant defendants' motion to dismiss the action because plaintiffs have failed to state a claim that the policy unconstitutionally infringes upon the right to petition the government or that it employs an unlawful classification.

In the Court's view, the plaintiffs have not supplied the necessary predicate for their First Amendment argument because the allegations in the complaint do not establish that service on an ITAC is a valuable government benefit that an individual committee member could receive. But even if it is, plaintiffs have not been denied that benefit on a basis that infringes upon their constitutionally protected rights and they have not been penalized for or inhibited in the exercise of their rights. As the complaint specifically reveals, the challenged policy does not condition the receipt of the alleged benefit upon relinquishing the right to petition the government -- either as an individual or on behalf of others -- and there is no allegation that the opportunity for committee service has been withdrawn in retaliation for any constitutionally protected activity. Therefore, plaintiffs' action will be dismissed.


The Trade Act of 1974 ("Act"), 19 U.S.C. § 2155, directs the President to "seek information and advice from representative elements of the private sector and the non-Federal sector" with respect to certain aspects of the trade policy of the United States. Id. § 2155(a). It sets out three tiers of advisory committees to provide this advice. The first two tiers of committees respectively provide "overall policy advice" and "general policy advice" on trade issues. Id. § 2155(b), (c)(1). ITACs fall within the third-tier, consisting of "sectoral or functional advisory committees." Id. § 2155(c)(2); Request for Nominations for the Industry Trade Advisory Committees (ITACs), 75 Fed. Reg. 24584, 24585 (May 5, 2010) ("Nomination Request"). Accordingly, ITACS are structured to include a broad range of industry perspectives. Nomination Request at 24585. In other words, the members serve solely in a representative capacity. Id.

The committees are organized by the United States Trade Representative and the secretary of the appropriate executive department; in this case, the Secretary of Commerce. 19 U.S.C. § 2155(c)(2); Compl. ¶ 30. They meet at the request of the USTR and other designated executive officials to provide "policy advice, technical advice and information, and advice on other factors" relevant to the trade matters described in the statute. 19 U.S.C. § 2155(d). In addition, each committee meets at the conclusion of negotiations for certain trade agreements to provide the President, Congress, and the USTR with a report on the agreement. Id. § 2155(e). It is the responsibility of the USTR, in conjunction with the appropriate executive department secretary, to adopt the procedures for consulting with and obtaining information and advice from the ITACs. Id. § 2155(i). The USTR is not bound by the advice or recommendations of the ITACs, but must inform them of significant departures from their advice or recommendations. Id.

On September 23, 2009, Deputy Counsel to the President announced on the White House's Open Government Initiative website that "[t]he White House has informed executive agencies and departments that it is our aspiration that federally-registered lobbyists not be appointed to agency boards and commissions." Compl. ¶ 32. In accordance with that announcement, plaintiffs allege, the DOC and USTR now require individuals applying for ITAC membership to provide a statement affirming both that: (a) the applicant is not a federally registered lobbyist, and (b) if appointed, the applicant will not be able to continue serving as an ITAC member if he or she should become a federally registered lobbyist. Id. ¶ 34. Furthermore, a recent published announcement for ITAC nominations stated that "the applicant must not be a federally-registered lobbyist." Id. ¶ 35.

What is a "federally-registered lobbyist?" The LDA requires registration for any individual who is (1) "employed or retained by a client," (2) "for financial or other compensation," (3) "for services that include more than one lobbying contact," (4) unless the individual's lobbying activities "constitute less than twenty percent of the time engaged in the services provided by such individual to that client over a three-month period." 2 U.S.C. § 1602(10). With some exceptions, a "lobbying contact" is any oral or written communication to a covered executive or legislative branch official on behalf of a client with regard to particular facets of federal legislation, rules, regulations, executive orders, programs, policies, positions, nominations, and confirmations. Id. § 1602(8).

The complaint alleges that five of the six plaintiffs in this case formerly represented members of the private sector on ITACs but were not reappointed because they were federally registered lobbyists. Compl. ¶¶ 7--12. The sixth plaintiff, William Reinsch, is allegedly "interested in applying to represent the National Foreign Trade Council ("NFTC") on an ITAC," but given the DOC and USTR policy, "it is clear that Reinsch's application will not be accepted." Id. ¶ 11.

Plaintiffs filed the complaint in this case on September 2, 2011. The First Cause of Action alleges that the exclusion of federally registered lobbyists from ITACs violates the First Amendment by "denying the benefit of committee service to individuals whose exercise of the right to petition triggers the LDA's registration requirement, while also interfering with the ability of the entities that seek the services of these lobbyists to communicate their views to the government." Compl. ¶¶ 42--49. The Second Cause of Action alleges that the policy violates the Equal Protection clause of the Fifth Amendment because it "draws an unconstitutional distinction between those who exercise their right to petition the government and those who do not." Id. ¶¶ 50--57.


In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (citations omitted).

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court with limited jurisdiction, we begin, and end, with examination of our jurisdiction."). Because "subject-matter jurisdiction is an 'Art[icle] III as well as a statutory requirement, . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II. Failure to State a Claim

"To survive a [Rule 12(b)(6)] motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, citing Twombly, 550 U.S. at 556. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 556. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' 'that the pleader is entitled to relief.'" Id. at 679, quoting Fed. R. Civ. Pro. 8(a)(2).

A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. at 678, quoting Twombly, 550 U.S. at 555, and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. In ruling upon a motion to dismiss, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).*fn1 In evaluating a motion to dismiss a constitutional challenge, the Court must first determine the appropriate level of scrutiny for examining the policy in question. Classifications made by the government are generally valid "if they bear a rational relation to a legitimate governmental purpose." Regan v. Taxation with Representation of Wash., 461 U.S. 540, 547 (1983). However, if they interfere with the exercise of a fundamental right, such as the First Amendment right to petition, or if they employ a suspect classification, they are subjected to a higher level of scrutiny. Id. Therefore, as part of its analysis, the Court must determine the threshold question of whether the DOC and USTR policy interferes with plaintiffs' right to petition or employs a classification that impinges upon plaintiffs' First Amendment rights.


I. Plaintiffs have standing to challenge the policy.

A lack of standing is a defect in subject-matter jurisdiction. Haase v. Session, 835 F.2d 902, 906 (D.C. Cir. 1987). In order to establish constitutional standing, a plaintiff must demonstrate that a case or controversy exists by showing that (1) he has suffered an "injury in fact"; (2) that the injury is "fairly traceable" to the conduct of the defendant; and (3) that it is likely that the injury will be redressed by a favorable decision. George v. Napolitano, 693 F. Supp. 2d. 125, 129--30 (D.D.C. 2010), quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180--81 (2000). Defendants here argue that plaintiffs lack standing because they have not suffered an injury in fact. Defs.' Mot. at 15.

For standing purposes, an injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). The Supreme Court has long recognized that injury in fact exists when a plaintiff alleges that the government has directly impacted the exercise of his First Amendment rights or where he has shown a threat of specific future harm. See Laird v. Tatum, 408 U.S. 1, 13--14 (1972), citing Ex parte Levitt, 302 U.S. 633, 634 (1937). Defendants point out that four of the five plaintiffs chose to remain registered lobbyists despite the consequence that they would not be given positions on the ITACs. Defs.' Mot. at 34. Similarly, with regard to the final plaintiff, the complaint alleges that "it is clear that Reinsch's application [to represent the National Foreign Trade Council on an ITAC] will not be accepted," Compl. ¶ 11, not that Reinsch will deregister as a federal lobbyist. So the defense takes the position that plaintiffs do not allege that the government has directly impacted their First Amendment rights. Defs.' Mot. at 33--34. But the complaint as written does allege that the plaintiffs' rights have been burdened by being forced to make the choice.

Moreover, the Supreme Court has also found injury in fact where the government threatens to cause an individual a cognizable injury as a consequence of his exercise of a constitutional right. In Meese v. Keene, 481 U.S. 465 (1987), the Supreme Court considered the plaintiff's motion for preliminary injunction challenging the Foreign Agents Registration Act of 1938, which would have required three Canadian films that the plaintiff wished to publicly show to be labeled "foreign political propaganda." Id. at 467--68. The defendants argued that the plaintiff lacked standing because he had not shown a direct impact to the exercise of his First Amendment right to free speech. The Supreme Court disagreed. It found that plaintiff -- an attorney and member of the California State Senate -- had standing because the law threated to cause him "cognizable injury" for choosing to exercise his constitutionally protected rights. Id. at 473 (finding appellee alleged "more than a 'subjective chill'" because the consequence of exercising his right to free speech threatened to cause him cognizable injury.). It found cognizable injury because detailed uncontradicted affidavits that plaintiff had ...

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