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 ...