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Food and Water Watch, Inc. v. Trump

United States District Court, District of Columbia

December 10, 2018

FOOD & WATER WATCH, Plaintiff,
v.
DONALD J. TRUMP, in his official capacity as PRESIDENT OF THE UNITED STATES, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge

         Plaintiff Food & Water Watch (“FFW”) has sued Donald J. Trump in his official capacity as President of the United States and the U.S. Department of Transportation (“DOT”) for establishing a de facto advisory committee to provide the White House and DOT with advice on infrastructure policy, in violation of the Federal Advisory Committee Act, 5 U.S.C. app. 2 §§ 1-16 (“FACA”). Defendants have moved to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). The Court permitted limited discovery to resolve issues of fact related to subject-matter jurisdiction. Based on the record before the Court, it concludes that it does not have subject-matter jurisdiction, and therefore the motion to dismiss will be granted. The Court also will deny plaintiff's alternative motion to compel further discovery, finding that defendants' discovery responses are sufficient.

         BACKGROUND

         I. PLAINTIFF'S ALLEGATIONS

         Plaintiff initiated this action on July 25, 2017 (Compl., ECF No. 1) and subsequently amended its complaint on November 20, 2017. (Am. Compl., ECF No. 11.) Plaintiff alleges that President Trump “established an Infrastructure Council” in January 2017 “to advise himself and DOT on matters related to infrastructure policy.” (Id. ¶ 2.) According to plaintiff, the Infrastructure Council was “created to monitor spending on the [Administration's] $1 trillion Infrastructure Plan, ” and the council “has reviewed incoming project proposals and advised Defendants on which projects to fund.” (Id. ¶ 21.) Plaintiff alleges that the council was an advisory committee subject to FACA and thus its private activities and membership comprised only of the President's “business associates and friends” violated the law's membership and transparency requirements. (Id. ¶ 1.)

         Plaintiff points to public statements by the President, Secretary of Transportation Elaine Chao, and alleged committee members Richard LeFrak and Steven Roth to support its allegation that the council met with and advised the Administration on infrastructure policy beginning in January 2017. (See Id. ¶¶ 32-33, 35.) Before taking office, then-President-elect Trump announced that LeFrak and Roth, both New York City real estate developers, had “already agreed” to oversee an infrastructure committee. (Id. ¶ 22 (quoting Peter Grant & Ted Mann, Donald Trump Asks Richard LeFrak, Steven Roth to Monitor Infrastructure Plan's Costs, Wall St. J. (Jan. 16, 2017)).) According to the complaint, “[a] spokesman for LeFrak confirmed that President Trump had made such a request; Roth later described himself as an ‘advisor' for the Infrastructure Council.” (Id. (quoting Christian B. Bautisa, Vornado's Roth: ‘Board has a robust succession plan if I get hit by a bus,' Real Estate Wkly. (Feb. 15, 2017)).) At an event in April 2017, “President Trump said that the Infrastructure Council, headed by his ‘two friends' LeFrak and Roth[, ] would be working with Department of Transportation Secretary Chao to ‘cut a lot of red tape.'” (Id. ¶ 28(c) (quoting Remarks by President Trump & Vice President Pence at CEO Town Hall on Unleashing American Business, The White House (April 4, 2017)).)

         In February 2017, LeFrak stated that “[p]art of our assignment is to advise him [President Trump] as best we can on the merits of these different things” (i.e., infrastructure spending). (Id. ¶ 28(a) (quoting Sarah Mulholland & Mark Niquette, Trump Ties to Infrastructure Advisers Roth, LeFrak Run Deep, Bloomberg News (Feb. 15, 2017)).) Around the same time, Roth told his company's shareholders:

I'm honored that [President Trump] has asked me together with Richard LeFrak to be an advisor to him and the administration with respect to infrastructure matters. . . . I'm an advisor. I'm not a line executive. I'm not in any way an employee of the government. . . . I know this President means business, and I would hope that I and Richard LeFrak can make a difference.

(Id. ¶ 28(b) (quoting Transcript of Vornado Realty Trust's CEO Steven Roth on Q4 2016 Results Earnings Call (Feb. 14, 2017)).) In March 2017, LeFrak characterized the council as a group of “gentlemen on the little unofficial advisory council.” (Id. ¶ 27 (quoting Richard LeFrak, Mornings with Maria, Fixing U.S. Infrastructure, Fox Bus. Network (Mar. 13, 2017)).)

         Plaintiff alleges that Joshua Harris and William E. Ford, both private equity executives, later joined the Infrastructure Council. (Id. ¶ 25 (citing E.B. Solomont, New York Eyes Outsized Share of $1 Trillion Prize, The Real Deal (March 1, 2017)).) In May 2017, Secretary Chao publicly discussed the council during an on-air interview with LeFrak:

I want to compliment the infrastructure council, you know, because these are leading thought leaders in our country. Richard and others, Steve Roth, Josh Harris, Bill Ford. They are volunteers. They have given up their time and their life's experience and finding the best way to build our infrastructure for the future.

(Id. ¶ 29 (quoting Interview with Elaine Chao & Richard LeFrak, Rebuilding America with Transportation Secretary Chao & Richard LeFrak, CNBC (May 1, 2017)).)

         On July 19, 2017, the President issued Executive Order No. 13805 (“EO 13805”), announcing the establishment of a “Presidential Advisory Council on Infrastructure.” (Am. Compl. ¶ 39.) EO 13805 defined the council's “mission”:

The Council shall study the scope and effectiveness of, and make findings and recommendations to the President regarding, Federal Government funding, support, and delivery of infrastructure projects in several sectors, including surface transportation, aviation, ports and waterways, water resources, renewable energy generation, electricity transmission, broadband, pipelines, and other such sectors as determined by the Council.

         Exec. Order 13805 § 4, 82 Fed. Reg. 34383, 34383 (July 19, 2017). However, shortly thereafter, in August 2017, the White House announced that plans for the council (as well as other councils) would not move forward, and on September 29, 2017, President Trump signed Executive Order No. 13811, revoking EO 13805. (See Am. Compl. ¶¶ 40-41; Exec. Order 13811 § 3, 82 Fed. Reg. 46363, 46365 (Sept. 29, 2017).)

         Notwithstanding the ultimate dissolution of the planned committee, plaintiff claims that the Administration “formally adopted a variety of policy recommendations” made by the Infrastructure Council (see Am. Compl. ¶ 3) and developed a non-public 70-page memorandum on the Administration's plans for infrastructure policy. (See Id. ¶ 38 (citing Steven Overly, Cordish: White House Talking with Musk, Prepping Infrastructure Plan, PoliticoPro, Nov. 13, 2017)).) And, although plaintiff initially claimed that the council was an advisory committee within the meaning of FACA, plaintiff amended its complaint after EO 13805 was revoked to claim that the Infrastructure Council was a “de facto” FACA committee.

         II. DEFENDANTS' MOTION TO DISMISS AND SUPPLEMENTAL BRIEFING

         Defendants have moved to dismiss the amended complaint for lack of subject-matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Defs.' Mot. to Dismiss, Jan. 17, 2018, ECF No. 14.) Defendants' primary argument is that plaintiff cannot establish standing because no FACA committee ever existed, and the Court therefore lacks subject-matter jurisdiction over plaintiff's claims. (See Defs.' Mem. in Support of Mot. to Dismiss (“Mot.”), Jan. 17, 2018, ECF No. 14-1.) Defendants appended to their first motion to dismiss a declaration by Reed S. Cordish, then-Assistant to the President for Intergovernmental and Technology Initiatives, stating that only “preliminary discussions” took place regarding the Infrastructure Council. (See Decl. of Reed S. Cordish (“Cordish Decl.”), ECF No. 8-2 ¶ 5.) Thus, while defendants acknowledge that the President “was interested in establishing a new infrastructure advisory council, ” they argue that the initial activities of various private individuals and government officials did not constitute FACA meetings because no group policy recommendations were solicited or rendered. (Mot. at 3 (citing Cordish Decl. ¶ 4).) According to Cordish, “White House staff, together with the four identified potential council members and Department of Commerce staff, had some preliminary discussions regarding the anticipated infrastructure advisory council, including discussions of how such a council would operate and what the mission of such a council would be.” (Cordish Decl. ¶ 5.)

         These discussions led to the issuance of EO 13805, “authorizing the establishment of a Presidential Advisory Council on Infrastructure in the Department of Commerce.” (Mot. at 3 (citing EO 13805 § 2, 82 Fed. Reg. 34383).) Prior to the issuance of EO 13805, the Administration anticipated that “a charter would be executed that would describe the anticipated council's operation and the responsibilities of its members in greater detail . . . before any members were appointed to the anticipated council and before it began operating as an advisory council.” (Cordish Decl. ¶ 6.) According to Cordish, this process of drafting a charter began in April 2017 and was abandoned before a charter was finalized and before any members were officially appointed. (Id. ¶¶ 6, 8; see also Declaration of James W. Uthmeier ¶ 8, (“Uthmeier Decl.”) ECF No. 8-3.)

         In opposition, plaintiff argued that the Court should not consider the Cordish Declaration without permitting limited jurisdictional discovery to determine whether a FACA committee had existed. (See Pl.'s Mem. in Opp'n to Defs.' Mot. to Dismiss (“Opp'n”), Feb. 14, 2018, ECF No. 16 at 16-18.) The Court subsequently ordered plaintiff to supplement its brief and address whether it had “at least a good faith belief that [jurisdictional] discovery will enable it to show that the court enjoys jurisdiction over the suit” and to “make a detailed showing of what discovery it wishes to conduct [and] what results it thinks such discovery would produce.” (Order, May 7, 2018, ECF No. 19 at 1 (quoting Judicial Watch, Inc. v. Tillerson, 293 F.Supp.3d 33, 47 (D.D.C. 2017) (quoting GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1352 (D.C. Cir. 2000))).)

         After reviewing the parties' pleadings, the Court determined that limited jurisdictional discovery was appropriate and ordered plaintiff to submit proposed interrogatories that were narrowly tailored, consistent with Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367 (2004). (See Order, May 23, 2018, ECF No. 23 at 1.) The Court also instructed plaintiff to bear in mind the D.C. Circuit's subsequent en banc ruling in In re Cheney, which stressed the narrow application of FACA:

Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.

406 F.3d 723, 728 (D.C. Cir. 2005).

         Plaintiff proposed an extensive list of interrogatories (Pl.'s 1st Set of Interrogatories Related to Jurisdictional Discovery to Defs., May 29, 2018, ECF No. 24), to which defendants objected. (Notice of Objections to Pl.'s Proposed Interrogatories, June 4, 2018, ECF No. 25). The Court held a hearing at which it rejected plaintiff's proposed interrogatories as amounting to “unbounded” discovery in violation of the Supreme Court's holding in Cheney, but instead, it proposed more limited interrogatories targeted to resolving the issue of whether “a FACA committee existed de facto or otherwise.” (Tr. of Hearing, June 6, 2018, ECF No. 29 at 2-3; see also Cheney, 542 U.S. at 397.) The interrogatories, which were edited and agreed to by the parties (see Tr. of Hearing at 3 et seq.), were as follows:

1. Between January and August 2017, did any meeting occur involving nongovernment individuals[1] and government employees or only nongovernment individuals, in which recommendations or advice regarding infrastructure policy was proposed by, or on behalf of, a group or solicited from a group including two or more non-government individuals for the President, Secretary Chao, the Deputy Transportation Secretary, or persons from the White House, the Office of American ...

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