United States District Court, District of Columbia
For FREEDOM WATCH, INC., Plaintiff: Larry E. Klayman, LAW OFFICE OF LARRY KLAYMAN, Washington, DC.
For BARACK HUSSEIN OBAMA, II, Honorable, President of the United States of America ; as DE FACTO Chairman of the Defendant Advisory Committee, OBAMA HEALTH REFORM DE FACTO ADVISORY COMMITTEE, Defendants: Elizabeth J. Shapiro, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC; Marcia Berman, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
For JOHN AND JANE DOE,
NOS. 1-99, Certain Unknown Non-Federal Employees, and/or Members of the Obama Health Reform DeFacto Advisory Committee, Defendant: Elizabeth J. Shapiro, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.
RICHARD W. ROBERTS, United States District Judge.
Plaintiff Freedom Watch sued the President of the United States, an entity styled in the complaint as the Obama Health Reform De Facto Advisory Committee (" OHRDFAC" ), and the unknown non-federal employee members of that committee for alleged violations of the Federal Advisory Committee Act (" FACA" ), codified at 5 U.S.C. app. 2, seeking access to information about the membership and meetings of the OHRDFAC. The defendants move for summary judgment  on Freedom Watch's claim for minutes of the committee's past meetings arguing that the OHRDFAC does not exist and that the stakeholder meetings did not create an advisory committee subject to FACA. Because the defendants have shown that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law on the claim for meeting
minutes, the defendants' motion for summary judgment will be granted.
The background of this case is set out fully in Freedom Watch, Inc. v. Obama, 807 F.Supp.2d 28 (D.D.C. 2011). Briefly, Freedom Watch alleges that the President established the OHRDFAC to gather information and negotiate agreements in support of the proposed health reform legislation enacted in 2010. Compl. ¶ 7. Freedom Watch sought access to the committee's meeting minutes and decisions, 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" than the committee. Compl. ¶ ¶ 10, 13-14. The claim for minutes of the alleged committee's meetings survived the government's motion to dismiss and an additional challenge based on mootness.  The defendants' first supplemental memorandum states that the OHRDFAC and any documents or minutes from the committee's meetings never existed. The defendants admit that President Obama and his staff held meetings with individuals and entities who were stakeholders in health care reform. Defs.' Supp. Mem. Concerning the Mootness of Count 1 at 4-6, Ex. 1, Decl. Of Kimberley Harris (" Harris Decl." ) ¶ ¶ 2-4. The parties were ordered to show cause why the defendants' supplemental memorandum should not be treated as a motion for summary judgment on the plaintiff's sole remaining claim for minutes of the committee's meetings. Freedom Watch, Inc. v. Obama, 859 F.Supp.2d 169, 176 (D.D.C. 2012). The defendant responded that the supplemental memorandum should be treated as a motion for summary judgment and Freedom Watch opposed, arguing in part that the Harris Declaration was insufficient evidence to support the defendants' claim for summary judgment. A July 13, 2012 memorandum order found the defendants' evidence to be insufficient to support granting summary judgment to the defendants. See Mem. Order entered July 13, 2012 at 2-3. The defendants were ordered to file a joint status report reflecting whether they would provide further evidentiary support or confer with Freedom Watch about discovery. Id. at 3.
In response to these deficiencies, the defendants filed a second supplemental memorandum arguing that the additional evidentiary support submitted with that memorandum would be sufficient to grant summary judgment to them on the sole remaining claim. Defs.' Mem. of Law (" Second Supp. Mem." ) at 4-9. The defendants submitted the declaration of Andrew White, a Special Assistant and Associate Counsel to the President, which provides further detail on the stakeholder meetings including a list of stakeholder meetings relating to the healthcare legislation. Id., Ex. 1, Decl. of Andrew Wright (" Wright Decl." ), Ex. A. Freedom Watch responds that the government's declarations are based on hearsay and fail to disclose important facts and that the plaintiff is entitled to discovery under Federal Rule of Civil Procedure 56(d). Pl.'s Opp'n to Defs.' Mot. for Summ. J. (" Pl.'s Opp'n" ) at 2-4.
Summary judgment is proper on a claim where " there is no genuine dispute as to any material fact and the movant is entitled to ...