VoteVets Action Fund v. U.S. Dep't of Veterans Affairs

414 F.Supp.3d 61

VOTEVETS ACTION FUND, Plaintiff,

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS et al., Defendants.

Civil Action No. 18-1925 (TJK)

United States District Court, District of Columbia.

Signed September 30, 2019

Benjamin M. Seel, Karianne Melissa Jones, Pro Hac Vice, Democracy Forward Foundation, Adam Anderson Grogg, U.S. House of Representatives Office of General Counsel, Washington, DC, for Plaintiff.

Serena Maya Schulz Orloff, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge The Federal Advisory Committee Act imposes transparency and disclosure requirements on agencies with respect to so-called advisory committees, provisional bodies that provide them with advice or recommendations. VoteVets Action Fund, a nonprofit veterans-affairs advocacy group, alleges that the Department of Veterans Affairs has ignored these requirements as they relate to a purported advisory committee comprised of three men VoteVets dubs the "Mar-a-Lago Council." Defendants have moved to dismiss the operative complaint on two grounds, both premised on their contention that VoteVets has not plausibly alleged that the three men were an advisory committee under the statute. First, they argue, VoteVets lacks standing because if statute does not apply VoteVets has not suffered a legally cognizable injury. Second, they argue that VoteVets has failed to state a claim on which relief can be granted. For the reasons discussed below, the Court holds that VoteVets has standing, but that the complaint must be dismissed for failure to state a claim. Accordingly, the Court will grant Defendants' motion.

I. Background

A. The Federal Advisory Committee Act

The Federal Advisory Committee Act (FACA), Pub. L. No. 92–463, 86 Stat. 770 (1972) (codified as amended at 5 U.S.C. app. 2 §§ 1 – 16 ), governs the formation and operation of advisory committees. As relevant here, FACA defines "advisory committee" broadly to cover any group "established or utilized" by either the President or an executive agency "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. app. 2 § 3. In enacting FACA, Congress sought to ensure that both it "and the public remain apprised of [an advisory committee's] existence, activities, and cost; and that their work be exclusively advisory in nature." Public Citizen v. Dep't of Justice , 491 U.S. 440, 446, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989).

To that end, "FACA mandates that every advisory committee ‘file a charter before meeting or taking any action, hold its meetings open to the public, publish timely notice of each such meeting in the Federal Register, keep minutes and other records of its meetings, and allow interested persons ... to attend, appear before, or file statements with the committee.’ " Food & Water Watch v. Trump , 357 F. Supp. 3d 1, 9–10 (D.D.C. 2018) (citations omitted). FACA also requires advisory committees to "make available for public inspection and copying the various records, reports, meeting minutes, and any other documents ‘which were made available to or prepared for and by’ the advisory committee." Id. And to guard against potential bias, FACA requires an advisory committee's "membership to be fairly balanced in terms of the points of view represented," and that the committee take steps to avoid being "inappropriately influenced ... by any special interest." 5 U.S.C. app. 2 § 5(b)(2)–(3).¹

B. Plaintiff's Lawsuit

In August 2018, VoteVets Action Fund ("VoteVets") sued the Department of Veterans Affairs (the "Department") and Robert Wilkie in his official capacity as Secretary of Veterans Affairs (collectively, "Defendants"). ECF No. 1. A few months later, VoteVets amended its complaint. ECF No. 10 ("Am. Compl."). In its amended complaint, VoteVets alleges that, since January 2017, the Department "has repeatedly sought the advice of, and acted on the basis of collective recommendations from, Ike Perlmutter, Bruce Moskowitz, and Marc Sherman," three men VoteVets calls the "Mar-a-Lago Council" (the "Council") Id. ¶ 2. VoteVets alleges that the three men are an advisory committee subject to FACA. Id. VoteVets further alleges that Perlmutter, the "Chief Executive Officer for the entertainment and production company Marvel Entertainment," id. at ¶ 30, Moskowitz, "a doctor practicing in West Palm Beach, Florida, and the founder of Biomedical Research and Education Foundation," id. , and Sherman, "a managing director who specializes in financial fraud and white-collar investigations with the consulting firm Alvarez & Marsal," id. , do not "have notable experience with issues facing veterans," id. ¶ 31.

VoteVets alleges that the Council was formed either in January 2017 when then President-elect Trump "named" Perlmutter its leader and Moskowitz and Sherman its other members, id. ¶¶ 28–29, or on February 7, 2017, when then Secretary of Veterans Affairs David Shulkin attended a meeting with them at the Mar-a-Lago Club in Florida, id. ¶ 36(c). Since that time, VoteVets alleges, and through "frequent phone calls and meetings with top officials at the Department, ... the Council's views [have been] solicited, its advice considered, and its recommendations followed on a broad range of policy and personnel matters concerning veterans." Id. ¶ 4.

According to the amended complaint, the three men have provided advice on at least ten policy or personnel-related subjects, id. ¶¶ 39–73, and they have conducted at least 30 meetings, email exchanges, or phone calls with Department officials, id. ¶ 36. For example, VoteVets alleges that the three men "sought to influence the [Department's] hiring process for an Under Secretary post" when "Moskowitz emailed ... the acting Secretary, to introduce him to a candidate over email and to ‘make sure his application [was] received.’ " Id. ¶ 44 (quoting FOIA-obtained information).²

VoteVets also alleges that the three men have provided recommendations about the Department's ongoing projects and policy priorities. Id. ¶ 39. For example, VoteVets pleads that the three men recommended that the Department develop a "a mobile accessible, digital platform that would allow veterans to, among other things, find nearby medical services and easily access health records." Id. ¶ 46. The three allegedly "facilitated a series of calls with senior executives from the [Department] and Apple to implement the Council's recommendations" about the platform, id. , and remained involved in its development, id. ¶ 47–60. And the amended complaint cites other examples, including the three men's alleged involvement in the Department's efforts to update its electronic records system. Id. ¶ 64. In that case, the Department purportedly asked them "to sign non-disclosure agreements so that they could ‘lend an extra set of outside eyes on the [relevant] contract.’ " Id. ¶ 67 (quoting FOIA-obtained information). The amended complaint also cites a July 2018 statement the three men issued describing their interactions with the Department. Id. ¶ 74(o). According to VoteVets, their "use of collective pronouns (e.g., ‘we,’ ‘our’), without exception, and [their] descriptions of how the Council set about its business," reflect their status as an advisory committee. Id.

The heart of VoteVets' amended complaint is its allegation that Defendants have not complied with FACA's transparency and disclosure requirements with respect to the three men's activities. VoteVets alleges that Defendants have failed to (1) provide notice in the Federal Register of their "meetings," (2) make "available any material" they have "generated or received in connection with [their] meetings or with [their] work more generally," and (3) "[keep] or [publish] minutes" of their meetings. Id. ¶ 37. According to VoteVets, Defendants' failure to make these disclosures has prevented it from accessing information to which it is entitled, id. ¶¶ 77, 79, and has precluded it from participating in the three men's meetings, id. ¶¶ 38, 76, 79. As a result, VoteVets alleges Defendants have "unlawfully withheld or unreasonably delayed agency action" and "acted contrary to the law" under 5 U.S.C. §§ 706(1) and 706(2)(A). Id. ¶¶ 82–85.

Defendants moved to dismiss the amended complaint. See ECF No. 11-1 ("MTD Br.") at 7–21. VoteVets opposed the motion, ECF No. 13 ("Opp'n"), and Defendants replied, ECF No. 16 ("Reply").

II. Legal Standard

Under Rule 12(b)(1), a defendant may move to dismiss a claim for lack of standing. "The federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds." Tuck v. Pan Am. Health Org. , 668 F.2d 547, 549 (D.C. Cir. 1981). Standing is essential to that jurisdiction; "[a] defect of standing is a defect in subject matter jurisdiction." Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987). Thus, "[w]hen a defendant challenges a plaintiff's standing to bring a lawsuit, the defendant's motion is properly understood as a motion to dismiss for lack of subject matter jurisdiction under [Rule] 12(b)(1)." Fox v. McCormick , 20 F. Supp. 3d 133, 139 (D.D.C. 2013). When evaluating a motion to dismiss under Rule 12(b)(1), the Court may consider "undisputed facts [evidenced in the record] plus the court's resolution of disputed facts," including by looking outside the pleadings. Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003). And "[p]laintiffs' factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion." D.C. Ret. Bd. v. United States , 657 F. Supp. 428, 431 (D.D.C. 1987) (citation omitted).

Additionally, under Rule 12(b)(6), a defendant may move to dismiss a claim because the plaintiff has failed to state a claim upon which relief can be granted. To withstand dismissal, "a court must first ‘tak[e] note of the...