Judicial Watch Inc v. U.S. Department of Commerce

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., :
:
Plaintiff, : Civil Action No.: 07-1446 (RMU)
:
v. : Re Document No.: 22
:
UNITED STATES DEPARTMENT OF :
COMMERCE et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ RENEWED MOTION TO DISMISS

I. INTRODUCTION

This matter is before the court on the defendants’ renewed motion to dismiss. The

plaintiff, Judicial Watch, Inc. (“Judicial Watch”) seeks declaratory and injunctive relief against

the U.S. Department of Commerce (“DOC”) and DOC Secretary Gary Locke 1 (collectively, the

“defendants”) based on their alleged noncompliance with the Federal Advisory Committee Act

(“FACA”), 5 U.S.C. app. 2. Because the plaintiff has failed to plead a facially plausible claim

for which relief can be granted, the court grants the defendants’ motion to dismiss.

1
Pursuant to Federal Rule of Civil Procedure 25(d), the court substitutes the current DOC
Secretary, Gary Locke, for Carlos Gutierrez. FED. R. CIV. P. 25(d) (stating that an “officer’s
successor is automatically substituted as a party” and that “[l]ater proceedings should be in the
substituted party’s name”).
 II. BACKGROUND 2

A. The North American Competitiveness Council

In March 2005, leaders from the United States, Canada and Mexico held a summit during

which the three nations created the Security and Prosperity Partnership of North America

(“SPP”) to address matters of mutual concern, such as trade, energy and environmental issues.

Compl. ¶ 9. In March 2006, former DOC Secretary Gutierrez and his counterparts from Canada

and Mexico met with senior business leaders from the three countries to identify priorities for the

SPP and to solicit policy recommendations for improving North American economic

competitiveness. Id. ¶ 10.

During this meeting, the participants also discussed the creation of the North American

Competitiveness Council and its U.S. component subgroups (collectively, the “NACC”). Id.

Subsequently, Secretary Gutierrez and his counterparts agreed upon a framework for the NACC,

which would provide policy recommendations to the three governments for subsequent action

through the SPP. Id. ¶ 11. This framework envisioned the NACC functioning as a conduit

between the defendants, their Canadian and Mexican counterparts and the North American

business community. Id.

The proposed structure of the NACC was again discussed during a later meeting held in

March 2006, between officials from each government and private sector representatives. Id. ¶

12. Following this meeting, DOC officials met with the Council of the Americas and the U.S.

Chamber of Commerce to “formalize the NACC by facilitating interaction between

2
For the purposes of ruling on this motion, the court assumes the truth of the plaintiff’s allegations.
See Atherton v. D.C. Office of the Mayor, 567 F.3d 673, 681 (D.C. Cir. 2009) (observing that
“[w]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint” (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007))).
2
representatives from the three governments and the private sector.” Id. ¶ 13. Secretary Gutierrez

met with his Canadian and Mexican counterparts in June 2006 to officially launch the NACC.

Id. ¶ 14.

The NACC is composed of thirty-five members of the North American business

community. Id. ¶ 15. Canada and Mexico each hold ten NACC seats reserved for

representatives from their respective countries, while the United States holds fifteen seats. Id. ¶¶

17-18. Each country separately determines the selection process for appointing its

representatives to the NACC and designates organizations to serve as “Secretariats.” Id. ¶¶ 15,

20. For the U.S. delegation, the DOC selected two “business groups,” the Council of the

Americas and the U.S. Chamber of Commerce to serve jointly as the U.S. NACC Secretariat. Id.

¶ 20. The U.S. NACC Secretariat in turn selects the business organizations that hold seats on the

NACC. Pl.’s Opp’n to Defs.’ Renewed Mot. to Dismiss (“Pl.’s Opp’n”) at 16.

The U.S. component of the NACC consists of an Executive Committee and an Advisory

Committee. Compl. ¶ 22. The Executive Committee is comprised of the fifteen U.S.

representatives to the NACC, each of which is a large corporation. Id. The Advisory Committee

consists of over 200 businesses, associations and chambers of commerce that provide advice and

policy recommendations to the Executive Committee. Id. ¶ 23. The NACC meets with the

defendants and their Canadian and Mexican counterparts multiple times each year to propose and

discuss policy recommendations on issues such as facilitating border-crossing, regulatory

cooperation and energy integration. Id. ¶¶ 21, 26.

3
 B. Statutory Framework

The FACA’s purpose is “to enhance the public accountability of advisory committees

established by the Executive Branch and to reduce wasteful expenditures” that result only in

“worthless committee meetings and biased proposals.” Pub. Citizen v. U.S. Dep’t of Justice, 491

U.S. 440, 453, 459 (1989). Congress intended the FACA to “ensure that new advisory

committees be established only when essential[;] . . . that their creation, operation, and duration

be subject to uniform standards and procedures; that . . . the public remain apprised of their

existence, activities, and cost; and that their work be exclusively advisory in nature.” Id. at 446.

The FACA places obligations on the conduct of advisory committees falling within its ambit. Id.

at 446-47. For example, the FACA requires, inter alia, that advisory committees file a charter,

keep minutes of their meetings and file public notices of their meetings. 5 U.S.C. app. 2 §§ 9(c),

10(a)(2), 10(c). Advisory committees subject to FACA must also open their meetings to the

public and make their minutes, records and reports publicly available, subject only to certain

narrow statutory exceptions not relevant here. Id. § 10(a)(3), 10(b), 10(d).

The central dispute between the parties in this case is whether the NACC is an advisory

committee subject to the FACA, as defined by the statute and case law. Defs.’ Mot. at 9-15;

Pl.’s Opp’n at 11-18. The FACA defines advisory committees, in pertinent part, as “any

committee . . . established or utilized by one or more [U.S. government] agencies.” 5 U.S.C.

app. 2 § 3(2). The plaintiff asserts that the DOC established and continues to utilize the NACC,

subjecting the NACC to FACA regulations. Compl. ¶¶ 35-47.

4
 C. Factual & Procedural History

The plaintiff is a non-profit public interest corporation that monitors the actions of

government entities and officials at the federal, state and local levels. Compl. ¶ 1. The

plaintiff’s mission is to promote governmental integrity, transparency, accountability and fidelity

to the rule of law. Id. To that end, the plaintiff has been investigating the NACC since July

2006. Id. ¶ 28. The alleged relationship between the NACC and the DOC underlies the

plaintiff’s claims of FACA violations. Id. ¶¶ 35-47.

The plaintiff began seeking information about the NACC in July 2006 by submitting

Freedom of Information Act requests to various federal agencies, including the DOC. Id. ¶ 28.

Through these requests, the plaintiff sought access to records related to the NACC’s creation,

activities and meetings. Id. The plaintiff also requested permission from the U.S. NACC

Secretariat to participate in all future NACC meetings, but in April 2007, the U.S. Chamber of

Commerce denied this request. Id. ¶¶ 29-30. The plaintiff then sent a letter to the defendants in

July 2007 asking them to acknowledge that the FACA applies to the NACC, and that, as a result,

public access should be provided to all NACC meetings and records. Id. ¶ 31. The defendants

had not replied to this letter by August 10, 2007, when the plaintiff commenced this suit seeking

declaratory and injunctive relief related to the defendants’ alleged violations of the FACA. Id. ¶

32.

This court granted the defendants’ initial motion to dismiss on September 19, 2008,

holding that the plaintiff had not demonstrated standing. Mem. Op. (Sept. 19, 2008). On appeal,

the Circuit reversed and remanded, holding that, for the purposes of deciding a motion to

dismiss, the plaintiff had made sufficient factual allegations to assert standing. Judicial Watch,

5
Inc. v. U.S. Dep’t of Commerce, 583 F.3d 871, 873-74 (D.C. Cir. 2009). Upon remand, the

defendants filed this renewed motion to dismiss, which is now fully briefed. See generally

Defs.’ Renewed Mot. to Dismiss (“Defs.’ Mot.”).

III. ANALYSIS

A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pretrial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of

his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002),

or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d

134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56, instructing

6
courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of

facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when

the pleaded factual content “allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at

556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at

556.

In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949 (citing

Twombly, 550 U.S. at 555).

B. The Plaintiff May Bring a Cause of Action for FACA Violations Under the
Administrative Procedure Act or the Mandamus Act

As a preliminary matter, the court considers the defendants’ argument that the plaintiff’s

claim is not viable because the FACA does not directly provide for a private right of action, and

neither the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq., nor the Mandamus

Act, 28 U.S.C. § 1361, provide an alternative basis for obtaining such relief. Defs.’ Mot. at 19.

7
In opposition, the plaintiff argues both all three statues provide a basis for the relief it seeks.

Pl.’s Opp’n at 18.

1. The FACA Does Not Confer a Private Right of Action

“The judicial task is to interpret the statute Congress has passed to determine whether it

displays an intent to create not just a private right but also a private remedy.” Alexander v.

Sandoval, 532 U.S. 275, 286 (2001) (citations omitted). “Statutory intent on this latter point is

determinative.” Id. “Nothing in the language of [the] FACA evidences any intent to create such

a remedy.” Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F. Supp. 2d 20, 33-34

(D.D.C. 2002); see also Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1234 (10th Cir. 2004);

(stating, without explanation, that the FACA does not contain a private right of action); Utah

Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172, 1184 (D. Utah 2004) (holding that the FACA

does not provide for a private right of action); cf. Natural Resources Def. Council v. Abraham,

223 F. Supp. 2d 162, 176 (D.D.C. 2002) (recognizing that the FACA does not create a private

right of action and allowing the plaintiff’s case to proceed via the APA), superseded by statute, 5

U.S.C. app. 2, as recognized in Natural Resources Def. Council v. Dep’t of Energy, 353 F.3d 40,

41 (D.C. Cir. 2004) (explaining that the case is moot because the committees at issue were

statutorily exempt from the FACA). Because the FACA does not explicitly confer a private

remedy, see generally 5 U.S.C. app. 2, and because this fact alone is “determinative,” the court

holds that the FACA does not provide the plaintiff with a private right of action. Sandoval, 532

U.S. at 286.

8
 2. The Plaintiff May Bring Its Claims Pursuant to the APA

The APA grants district courts jurisdiction to review final agency actions for which there

is no other adequate remedy. 5 U.S.C. § 704. Here, the plaintiff alleges that the defendants have

denied it access to NACC meetings and documents. Compl. ¶ 31, 32. Another court in this

district, analyzing under the APA a claim to enforce the same provisions of the FACA at issue

here, has observed that “[t]he type of actions and inaction challenged here, [such as] holding

meetings, refusing to disclose documents[ and] failure to comply with FACA’s other procedural

requirements, certainly fall within the . . . definition of agency action.” Nat’l Energy Policy, 219

F. Supp. 2d at 38. The court also explained that the agency’s decisions not to comply “with the

various procedural requirements of FACA” had the effect of a final action because they “were

not tentative or interlocutory” and “had [the] legal consequence [of] den[ying] . . . the public’s

right of access to that information.” Id. at 40. As a result, the court determined that the APA

was an appropriate avenue for the plaintiffs to bring their claims alleging FACA violations. See

id. at 36-40.

Indeed, a number of courts have allowed plaintiffs to proceed with APA actions based on

alleged FACA violations. See, e.g., Idaho Wool Growers Ass’n v. Schafer, 637 F. Supp. 2d 868,

872 n.3 (D. Idaho 2009) (acknowledging that a plaintiff may bring a claim for FACA violations

under the APA); Int’l Brominated Solvents Ass’n v. Am. Conference of Governmental Indus.

Hygienists, 393 F. Supp. 2d 1362, 1378 (M.D. Ga. 2005) (stating that “[n]othing in the

applicable FACA provisions precludes judicial review under the APA”); Utah Ass’n of Counties,

316 F. Supp. 2d at 1184 (requiring that a plaintiff complaining of FACA violations do so via the

APA); Natural Resources Def. Council v. Abraham, 223 F. Supp. 2d at 193 (allowing the

9
plaintiffs to proceed on their APA claims for FACA violations). This court concurs with the

reasoning of these decisions and concludes that the plaintiff may bring its claims pursuant to the

APA.

3. The Plaintiff May Bring Its Claims Pursuant to the Mandamus Act

The Mandamus Act authorizes district courts to issue mandamus orders compelling

federal officials to perform ministerial or non-discretionary duties. 28 U.S.C. § 1361. The court

notes that nearly every provision of the FACA that explains the statutory duties of advisory

committees, like those at issue here, includes the word “shall,” see, e.g., 5 U.S.C. app. 2 §

10(a)(1) (stating “[e]ach advisory committee meeting shall be open to the public) (emphasis

added); id. § 10(b) (requiring that “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”) (emphasis added); id. §

10(c) (mandating that “[d]etailed minutes of each meeting of each advisory committee shall be

kept”) (emphasis added), indicating that “the language of [the FACA] leaves no room for

discretion,” Nat’l Energy Policy, 219 F. Supp. 2d. at 43. Therefore, such discrete, non-

discretionary duties qualify as relief in the nature of mandamus. See id. at 43. Accordingly, the

court holds that the plaintiff may bring his claim for alleged FACA violations under the

Mandamus Act. 3 Cf. Citizens for Responsibility & Ethics in Wash. v. Exec. Office of the

President, 587 F. Supp. 2d 48, 63 (2008) (denying a motion to dismiss a claim for FACA

3
As further support for their position, the defendants also cite a case in which the Circuit directed
the district court to dismiss the plaintiff’s claims under the Mandamus Act based on alleged
FACA violations. Defs.’ Mot. at 20 (citing In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)).
Cheney, however, does not address the issue of whether a plaintiff may bring a FACA claim
under the Mandamus Act. 406 F.3d at 730. Rather, the Circuit affirmed the dismissal of the
plaintiff’s FACA claims not because relief under the Mandamus Act was unavailable, but rather
because the advisory committees in question did not fall under the FACA. Id. at 730-31.
10
violations brought pursuant to the Mandamus Act on the basis that it is not duplicative of the

plaintiff’s APA claim); Ctr. for Arms Control & Non-Proliferation v. Lago, 2006 WL 3328257,

at * (D.D.C. Nov. 15, 2006) (analyzing the plaintiff’s FACA-based Mandamus Act claim on the

merits and dismissing the complaint because the committee at issue did not fall under FACA).

C. The Plaintiff Fails to Allege that the Defendants Established or Utilized
the NACC Within the Meaning of the FACA

The defendants argue that the NACC does not fall under the FACA because the DOC did

not “establish” and does not “utilize” the NACC. Defs.’ Mot. at 9-15; Defs.’ Reply in Supp. of

Defs.’ Mot. (“Defs.’ Reply”) at 1-6. The plaintiff responds that the FACA applies to the NACC

because the DOC “established” the NACC by playing a role in its creation and “utilizes” the

NACC by meeting with it regularly to discuss policy recommendations. Pl.’s Opp’n at 11-13.

The NACC is subject to FACA regulations if it was “established” or is “utilized” by the

DOC. 5 U.S.C. app. 2 § 3(2). The Supreme Court has stated that Congress did not design the

FACA to cover every formal or informal consultation between a government agency and a group

rendering advice. Pub. Citizen, 491 U.S. at 453. In the Court’s view, a straightforward

interpretation of the term “utilize” “would catch far more groups and consulting arrangements

than Congress could conceivably have intended.” Id. at 464; see also id. at 457-58 (noting that

the committee did not receive federal funding and was “not amenable to strict management by

agency officials”).

Subsequent decisions of this Circuit have further clarified the meaning of the terms

“establish” and “utilize” in the context of the FACA. Taken together, these decisions describe

three ways in which the government can “establish” or “utilize” an advisory committee so as to

subject it to FACA obligations. First, the government “establishes” an advisory committee when

11
the government directly forms it. Food Chem. News v. Young, 900 F.2d 328, 332 (D.C. Cir.

1990) (citing Pub. Citizen, 491 U.S. at 460-62). Second, the government “utilizes” a privately-

formed advisory committee when agency officials exercise actual management or control over

that committee. Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1451 (D.C. Cir.

1994). Third, even if a non-government entity forms an advisory committee, that committee will

still fall under the FACA if the organization forming it is “quasi-public.” Animal Legal Def.

Fund, Inc. v. Shalala, 104 F.3d 424, 431 (D.C. Cir. 1997). The court reviews the plaintiff’s

allegations in the context of each of these methods in turn.

1. The Plaintiff Fails to Adequately Allege That the DOC Directly Formed the NACC

This Circuit has held that the government does not directly form or “establish” an

advisory committee when the agency itself does not select the committee’s members. Byrd v.

U.S. Envtl. Prot. Agency, 174 F.3d 239, 246 (D.C. Cir. 1999) (citing Food Chem. News, 900 F.2d

at 332). The plaintiff in Byrd protested that the Environmental Protection Agency (“EPA”) had

“effectively created” the committee by “conceiving of the need for it.” Id. The Byrd plaintiff

also argued that the EPA retained some authority to select the committee members, and had even

provided a list of suggested members to the contractor forming the committee. Id. The Circuit

remained unpersuaded, however, because the EPA never actually exercised its authority to

determine who participated in the committee. Id. at 247. In the Circuit’s view, anything less

than actual selection of advisory committee members is insufficient to constitute direct formation

or government establishment within the meaning of the FACA. Id. at 246-47.

Here, the plaintiff here alleges that the defendants, working with their Mexican and

Canadian counterparts, created the “framework” for the NACC. Compl. ¶ 11. Later, the leaders

12
of the United States, Mexico and Canada held a series of meetings during which they allegedly

discussed the proposed structure of the NACC. Id. ¶ 12. Next, the plaintiff states that the

defendants worked with the Council of the Americas, the U.S. Chamber of Commerce and other

interested parties “to formalize the NACC by facilitating interaction between representatives

from the three governments and the private sector.” Id. ¶ 13. The plaintiff also asserts that

former Secretary Gutierrez met with his counterparts and North American business leaders to

“officially launch” the NACC and that each country represented in the NACC “determines its

own members and the membership selection process.” Id. ¶¶ 14, 15. Lastly, the plaintiff alleges

that the defendants designated the Council of the Americas and the U.S. Chamber of Commerce

to serve as the U.S. Secretariat with respect to the NACC, id. ¶ 20, and, in turn, the U.S.

Secretariat selects the U.S. representatives to the NACC, Pl.’s Opp’n at 16.

These allegations do not support the contention that the DOC directly formed the NACC

as the plaintiff does not allege that the DOC or any other U.S. government agency selects the

U.S. representatives to the NACC. See generally Compl.; Pl.’s Opp’n. Accordingly, the court

holds that the plaintiff has not adequately alleged that the defendants directly formed or

“established” the NACC. 4 Byrd, 174 F.3d at 246-47; see also Food Chem. News, 900 F.2d at

4
The plaintiff argues that U.S. General Services Administration (“GSA”) guidelines on when the
FACA applies lend support to its position that the DOC directly formed the NACC. Pl.’s Opp’n
at 17. The GSA is the federal agency that administers the FACA. Id. The plaintiff points to a
hypothetical scenario described in a GSA publication in which the GSA declares that the FACA
applies to a committee convened by a government administrator and made up of senior corporate
officials who confer and advise a government agency. Id.; Pl.’s Opp’n, Ex. A at 2. Although the
court may not look to documents outside of the pleadings in resolving a motion to dismiss, FED.
R. CIV. P. 12(d), the court notes that doing so here would not affect the outcome of the case
because the GSA publication also states that the FACA applies in that scenario due to the fact that
“the committee is established by an agency head.” Pl.’s Opp’n, Ex. A at 2. The GSA publication
incorporates the term “establish” from the FACA statute, id., and as already discussed, this
Circuit has defined that term in its decisions in a manner inconsistent with the plaintiff’s
allegations. See, Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d 239, 246 (D.C. Cir. 1999).
13
333 (holding that the FACA did not cover a committee whose members had not been selected by

the government) 5; People for Ethical Treatment of Animals, Inc. v. Barshefsky, 925 F. Supp. 844,

847-48 (D.D.C. 1996) (denying the plaintiff’s motion for an injunction, holding that the plaintiff

had not demonstrated a likelihood of success on the merits because fact that the government

named some of the committee members and provided the committee with partial funding “does

not rise to the level necessary . . . to conclude that the [government] ‘directly established’ the

[committee]”).

2. The Plaintiff Fails to Adequately Allege That the Defendants Exercise Actual
Management or Control Over the NACC

This Circuit has held that the government “utilizes” an advisory committee only when it

exercises “something along the lines of actual management or control” over that committee.

Wash. Legal Found., 17 F.3d at 1450; see also Food Chem. News, 900 F.2d at 332-33 (stating

that the term “utilized” “encompasses a group organized by a nongovernmental entity but

nonetheless so closely tied to an agency as to be amenable to strict management by agency

officials[]”) (internal quotations omitted). Even “significant influence” over a committee does

Moreover, even if the GSA publication did contradict Circuit’s precedent, courts need not defer to
the GSA’s interpretations of the FACA because the GSA’s “interpretive regulations [were] not
promulgated pursuant to express statutory authority” from Congress. Pub. Citizen v. U.S. Dep’t
of Justice, 491 U.S. 440, 463 n.12 (1989).
5
The plaintiff contends that the courts in both Food Chemical News and Byrd decided that the
FACA did not apply because of a statutory exception that excludes federal contractors from
obligations under the FACA. Pl.’s Opp’n at 15. This assertion, however, reflects a
misunderstanding of both cases. Although the facts underlying both cases involved federal
contractors, neither plaintiff alleged that the FACA applied to those contractors. See Food Chem.
News, 900 F.2d at 331; Byrd, 174 F.3d at 241-42. In addition, the holdings in both cases rested
on the explicit conclusion that the FACA was inapplicable because the government had not
“established” or “utilized” the disputed committees, not on the FACA exception for contractors.
See Food Chem. News, 900 F.2d at 333; Byrd, 174 F.3d at 247-48.
14
not constitute the degree of control required to qualify as utilization in the FACA context. Wash.

Legal Found., 17 F.3d at 1451.

The plaintiff in this case avers that the NACC provides policy recommendations to the

defendants and acts as a conduit between them and the business community. Compl. ¶ 11. The

plaintiff also maintains that the defendants meet frequently with the NACC at the “ministerial”

and “working group” levels to discuss policy recommendations. Id. at ¶¶ 21-24. The plaintiff

does not, however, allege that the defendants exercise any management authority or control over

the NACC. See generally Compl.; Pl.’s Opp’n. The court therefore holds that the plaintiff has

not adequately alleged that the defendants manage or control the NACC and thus do not “utilize”

it for FACA purposes. See Wash. Legal Found., 17 F.3d at 1450-51 (determining that a

committee was not subject to the FACA because the government did not exercise control over

it); see also Huron Envtl. Activist League v. U.S. Envtl. Prot. Agency, 917 F. Supp. 34, 42

(D.D.C. 1996) (holding that FACA did not apply to the committee at issue because the defendant

did not utilize it by exercising control); Am. Soc. of Dermatology v. Shalala, 962 F. Supp. 141,

147 (D.D.C. 1996) (ruling that the government did not exercise control over the committee and

therefore did not utilize it under the FACA).

3. The Plaintiff Does Not Allege That Any Quasi-Public Organization Formed the NACC

The FACA may also apply to an advisory committee created by a “quasi-public”

organization. Animal Legal Def. Fund, 104 F.3d at 431. A “quasi-public” organization is one

that, while technically private, is “created or permeated by the federal government.” Id. at 428

(citing Pub. Citizen, 491 U.S. at 463). The Circuit, in Animal Legal Defense Fund, pointed to the

National Academy of Sciences (“NAS”) as an archetypal example of a quasi-public organization,

15
because the NAS, although organized as a private corporation, was created and funded by

Congress. Id. at 429.

Here, the plaintiff makes no allegations concerning a quasi-public organization’s

involvement in creating the NACC. See generally Compl.; Pl.’s Opp’n. The plaintiff, likewise,

offers nothing to suggest that the federal government created, permeates or funds the SPP, the

NACC, the Council of the Americas or the U.S. Chamber of Commerce in a manner allowing the

court to draw comparisons with quasi-public organizations such as the court did in Animal Legal

Def. Fund. Id. Therefore, the court concludes that the plaintiff has not alleged that the NACC

was formed by a quasi-public organization. See Animal Legal Def. Fund, 104 F.3d at 431; see

also Food Chem. News, 900 F.2d at 333 (holding that the FACA did not apply to the committee

at issue partly because the organization that created it was not “quasi-public”); Wash. Toxics

Coal. v. U.S. Envtl. Prot. Agency, 357 F. Supp. 2d 1266, 1273 (W.D. Wash. 2004) (denying

plaintiff’s motion to dismiss because, among other reasons, the organization that created the

committee at issue was not quasi-public).

Although the plaintiff details how the DOC “established” and continues to “utilize” the

NACC in the familiar, colloquial sense of those terms, Compl. ¶¶ 9-27, this Circuit has rejected

such broad, literal interpretations of these words in the FACA context. See, e.g., Pub. Citizen,

491 U.S. at 463-64 (stating that “a literalistic reading [of the FACA] would catch far more

groups and consulting arrangements than Congress could conceivably have intended”); Animal

Legal Def. Fund, 104 F.3d at 428 (stating that “the definition given by the Court to [the term

‘utilized’] focuses not so much on how it is used but whether or not the character of its creating

institution can be thought to have a quasi-public status”); Wash. Legal Found., 17 F.3d at 1450

16
(holding that the “word ‘utilized’ in [the FACA context] . . . is a stringent standard, denoting

something along the lines of actual management or control of the advisory committee”); Food

Chem. News, 900 F.2d at 332-33 (stating that in the FACA context “‘established’ indicates a

Government-formed advisory committee, while ‘utilized’ encompasses [a committee] so closely

tied to an agency as to be amenable to strict management by agency officials”) (internal citations

omitted). Accordingly, because the court holds that the plaintiff has failed to allege that the

defendants “established” or “utilize” the NACC within the meaning of the FACA, the court

concludes that the plaintiff has failed to adequately plead that the FACA applies to the NACC,

and therefore the plaintiff does not state a claim for relief. 6

IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’ motion to dismiss. An Order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 7th

day of September, 2010.

RICARDO M. URBINA
United States District Judge

6
As a result, the court does not reach the merits of the defendants’ arguments that the NACC was
not created or used in the interest of obtaining advice or recommendations for the government as
required under the FACA, that the FACA does not apply to foreign proceedings, foreign
governments or foreign citizens, and that there would be no basis for an order requiring the DOC
to produce documents irrespective of the statutory Freedom of Information Act exemptions.
Defs.’ Mot. at 15-18, 22-23.
17