United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
Center for Biological Diversity has brought suit under the
Federal Advisory Committee Act (“FAC A ”) and the
Administrative Procedures Act (“A PA ”) against
Defendants United States Department of Agriculture
(“USDA”); United States Forest Service, an agency
of the USDA; and Thomas Tidwell, the Chief of the Forest
Service. Plaintiff claims that Defendants violated FACA and
the APA by convening an advisory committee to develop a
conservation strategy for the California spotted owl without
following certain procedural requirements that FACA imposes
on such committees. Defendants have moved to dismiss the
Complaint, ECF No. 1, for lack of subject-matter jurisdiction
and for failure to state a claim.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court GRANTS IN
PART AND DENIES IN PART Defendants'  Motion to
Dismiss. Plaintiff's claims survive only to the extent
they seek relief under the APA for Defendants' alleged
failure to comply with FACA's document disclosure
provision, 5 U.S.C. app. 2 § 10(b). Accordingly,
Plaintiff's other claims are DISMISSED WITHOUT PREJUDCE.
imposes a number of procedural requirements on
“advisory committees, ” which are defined as
“any committee . . . which is . . . established or
utilized by one or more [federal] agencies, in the interest
of obtaining advice or recommendations for . . . one or more
agencies or officers of the Federal Government . . . .”
5 U.S.C. app. 2 § 3(2). The statute exempts “any
committee that is composed wholly of full-time, or permanent
part-time, officers or employees of the Federal Government .
. . .” Id. FA C A was enacted out of
a desire to assess the need for the numerous committees,
boards, commissions, councils, and similar groups which have
been established to advise officers and agencies in the
executive branch of the Federal Government. . . . Its purpose
was to ensure that new advisory committees be established
only when essential and that their number be minimized; that
they be terminated when they have outlived their usefulness;
that their creation, operation, and duration be subject to
uniform standards and procedures; that Congress and the
public remain apprised of their existence, activities, and
cost; and that their work be exclusively advisory in nature.
Pub. Citizen v. U.S. Dep't of Justice, 491 U.S.
440, 445-46 (1989) (internal quotation marks and citations
omitted). To achieve that purpose, FACA requires that
advisory committees, inter alia, file a charter,
give advance notice of any meeting, hold all meetings open to
the public, and keep minutes and other records of those
meetings. See 5 U.S.C. app. 2 §§ 9(c),
10(a), 10(c). FACA also mandates that, unless an exception
applies under the Freedom of Information Act
(“FOIA”), “the records, reports,
transcripts, minutes, appendixes, working papers, drafts,
studies, agenda, or other documents which were made available
to or prepared for or by each advisory committee shall be
available for public inspection and copying . . . .”
Id. § 10(b). Finally, FACA requires that each
advisory committee be “fairly balanced in terms of the
points of view represented and the functions to be performed,
” id. § 5(b)(2), and “not be
inappropriately influenced by the appointing authority or by
any special interest, ” id. § 5(b)(3).
case involves an advisory committee established to create a
conservation strategy for the California spotted owl-“a
small and declining genetically-distinct subspecies found
primarily in California's Sierra Nevada Region and the
mountains of southern California.” Opp'n Mem. at 2.
As part of a settlement agreement in 2014, the Forest Service
agreed to create a spotted owl conservation strategy, but
retained the discretion to select experts and to determine
the scope of the strategy. Id. at 2-3. On September
25, 2015, the Forest Service announced via an
“initiation letter” that it was convening
“a team of experienced managers and scientific
advisors” to develop the conservation strategy (the
“Strategy Team”). Id. at 3 (quotation
marks and citations omitted); Compl. ¶ 24; Rosen Decl.
¶ 5. The Strategy Team met only once before this case
was filed, for a two-day period spanning November 12-13,
2015. Compl. ¶ 29; Rosen Decl. ¶ 27.
time it was formed, the Strategy Team included at least four
non-federal scientists, and at least 17 members altogether,
but included no experts that had been previously recommended
by Plaintiff in a July 2015 letter to the Forest Service.
Compl. ¶ 25. Plaintiff sent another letter to the Forest
Service after the Strategy Team was convened, requesting that
additional experts be included to ensure that the Strategy
Team was “fairly balanced, ” and warning that the
team as composed was “not conducive to spotted owl
conservation, ” and that the team was violative of
FACA. Plaintiff sent a third letter to the same effect in
November 2015. With no response forthcoming from the Forest
Service, Plaintiff filed the Complaint on December 15, 2015.
Opp'n Mem. at 3-4; Compl. ¶¶ 27- 29.
days after the Complaint was filed, but before it was served,
on December 18, 2015, the Forest Service issued a
“revised initiation letter, ” which relayed that
the four non-federal team members would no longer participate
in the Strategy Team, meaning that the Strategy Team was then
composed entirely of federal employees. Defs.' Mem. at 4.
This action was taken “due to the FACA concerns raised
by the Center for Biological Diversity . . . .” Rosen
Decl. ¶ 10. The four non-federal scientists, however,
were not completely separated from the workings of the
Strategy Team. Rather, the Forest Service represented that
“their input [would] be sought on an individual basis .
. ., ” but added that the non-federal scientists
“ [would] not be included in any group emails,
conference calls, or working group meetings that are managed
or controlled by the Forest Service.” Id.
¶ 11. Finally, on May 27, 2016, Defendants also publicly
disclosed a variety of materials associated with the Strategy
Team's November 2015 meeting. Sawyer Decl. at 1-2.
Motion to Dismiss for Lack of Subject-Matter Jurisdiction To
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), Plaintiff bears the burden of
establishing that the Court has subject-matter jurisdiction
over its claims. Moms Against Mercury v. FDA, 483
F.3d 824, 828 (D.C. Cir. 2007); Ctr. for Arms Control
& Non-Proliferation v. Redd, No. CIV.A. 05-682
(RMC), 2005 WL 3447891, at *3 (D.D.C. Dec. 15, 2005).
Although the Court's decision regarding its
“subject-matter jurisdiction necessarily precedes a
ruling on the merits, the same principle does not dictate a
sequencing of jurisdictional issues.” Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584 (1999). In other
words, the Court may dismiss Plaintiff's claims because
they are moot without deciding whether Plaintiff had standing
to bring those claims. Arizonans for Official English v.
Arizona, 520 U.S. 43, 66-67 (1997) (“We m a y
resolve the question whether there remains a live case or
controversy . . . without first determining . . . standing .
. . because the former question, like the latter, goes to the
Article III jurisdiction of this Court and the courts below,
not to the merits of the case.”).
determining whether there is jurisdiction, the Court may
“consider the complaint supplemented by undisputed
facts evidenced in the record, or the complaint supplemented
by undisputed facts plus the court's resolution of
disputed facts.” Coal. for Underground Expansion v.
Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal
quotation marks omitted); see also Charles Alan
Wright & Arthur R. Miller, 5B Federal Practice &
Procedure § 1350 (3d ed. 2017) (noting the “wide
array of cases from the four corners of the federal judicial
system involving the district court's broad discretion to
consider relevant and competent evidence on a motion to
dismiss for lack of subject matter jurisdiction to resolve
factual issues”). “Although a court must accept
as true all factual allegations contained in the complaint
when reviewing a motion to dismiss pursuant to Rule 12(b)(1),
” the factual allegations in the complaint “will
bear closer scrutiny in resolving a 12(b)(1) motion than in
resolving a 12(b)(6) motion for failure to state a
claim.” Wright v. Foreign Serv. Grievance Bd.,
503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal quotation
Motion to Dismiss for Failure to State a Claim
also move to dismiss the Complaint for “failure to
state a claim upon which relief can be granted”
pursuant to Federal Rule of Civil Procedure 12(b)(6).
“[A] complaint [does not] suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint
must contain sufficient factual allegations that, if accepted
as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
deciding a Rule 12(b)(6) motion, a court may consider
“the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint,
” or “documents upon which the plaintiff's
complaint necessarily relies even if the document is produced
not by the plaintiff in the complaint but by the defendant in
a motion to dismiss.” Ward v. District of Columbia
Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119
(D.D.C. 2011) (internal quotation marks omitted). The court
may also consider documents in the public record of which the
court may take judicial notice. Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.
Cir. 2007). Apart from these two exceptions, however,
“in evaluating a motion for failure to state a claim
under Rule 12(b)(6), the Court cannot rely on the same set of
materials as in evaluating a motion under Rule 12(b)(1) for
lack of jurisdiction” without converting the motion to
dismiss into a motion for summary judgment as provided for in
Federal Rule of Civil Procedure 12(c). Hagan v. United
States, 197 F.Supp.3d 30, 35 (D.D.C. 2016)
(Kollar-Kotelly, J.). Whether to convert a motion to dismiss
to a motion for summary judgment is a decision
“committed to the sound discretion of the trial
court.” Flynn v. Tiede-Zoeller, Inc., 412
F.Supp.2d 46, 50 (D.D.C. 2006). Generally, district courts
exercise that discretion based on their “determination
of whether or not the proffered material, and the resulting
conversion . . . is likely to facilitate the disposition of
the action.” 5C Wright et al., supra, §