Food and Water Watch, Inc. v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FOOD & WATER WATCH,

Plaintiff,

v. Civil Action No. 17-1485 (ESH)

DONALD J. TRUMP, in his official capacity as
PRESIDENT OF THE UNITED STATES, et al.,

Defendants.

MEMORANDUM OPINION

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

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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)).)

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 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”:

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 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

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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

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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

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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 non-
government individuals 1 and government employees or only non-
government 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 Innovation, or the
Department of Transportation’s political appointees, including acting
officials, and their staff?

2. If so, identify the dates of those meetings and all non-government
participants.

3. If so, did any non-government individual have the right to vote or veto any
drafted or proposed recommendation, advice, or report?

4. If so, did any non-government individual in fact vote on or veto any
recommendation or draft any portion of a final or preliminary committee
report?

5. Was any recommendation, advice, or report regarding infrastructure policy
drafted, proposed, or issued by, or on behalf of, the group as a result of
these meetings?

6. Explain what the “preliminary discussions” that Reed Cordish referred to
in ¶ 5 of his declaration involved. Did they consist of meetings,
conference calls, or some other form of communication? State the dates
of any discussions, identify any non-government individual who
participated, and summarize what was discussed during these “preliminary
discussions.”

7. Was any recommendation, advice, or report regarding infrastructure policy
drafted, proposed, or issued by, or on behalf of, the group as a result of
these “preliminary discussions”?

8. Did any non-government individual have the right to vote on or veto any
recommendation, advice, or report associated with these “preliminary
discussions”?

(Order, June 6, 2018, ECF No. 26 at 1-2.)

1
“Non-government individuals” is defined as Richard LeFrak, Steven Roth, Joshua Harris,
and/or Bill Ford.
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 Defendants filed a supplemental brief and responded to the interrogatories. (Defs.’ Supp.

Brief in Support of Defs.’ Mot. to Dismiss (“Defs.’ Supp. Brief”), July 23, 2018, ECF No. 28;

Defs.’ Responses to Interrogatories Set Forth in Court’s Order of June 6, 2018 (“Defs.’ Resp. to

Interrog.”), ECF No. 28-1.) Citing separation-of-powers concerns and the presidential

communications privilege, defendants objected to various aspects of the jurisdictional discovery,

especially “any discovery directed to the President of the United States or other senior

Government officials who advise him.” (Defs.’ Supp. Brief at 1.) Defendants nonetheless

responded to each of the interrogatories, based on a “review of calendar records and e-mail of the

individuals . . . other than the President himself, who have been identified by Defendants as

likely to have had meetings with any of the non-government individuals in connection with an

infrastructure council, and consultation with those individuals to the extent feasible.” (Defs.’

Resp. to Interrog. at 9.) As part of this review, Cordish and D.J. Gribbin, both former White

House Office employees involved in planning the committee and who no longer work at the

White House, were contacted. (See id. at 16.)

In response to Interrogatories 1-5, defendants stated that they had “identified no meeting

that meets the criteria described,” i.e., no meeting involving LeFrak, Roth, Harris, and/or Ford

“in which recommendations or advice regarding infrastructure policy was proposed by, on or

behalf of, a group or solicited from a group” including two or more non-government individuals.

(Id. at 9-11.) In response to Interrogatory 6, which asked about the “preliminary discussions”

referenced in the Cordish Declaration, defendants explained that the discussions involved

identification of LeFrak and Roth as the leaders of the planned council and identification of

potential members; discussion of how the anticipated council would be formed and would

operate; focus on administrative issues and logistical matters, including FACA compliance and

council-member vetting; and discussion of “specific infrastructure policy issues” in order to

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determine “what the council’s mission would be” and “what the end product of the council’s

work would be.” (Id. at 12-13.) The response identified thirteen such “preliminary discussions”

involving one or more of the alleged council members, including in-person meetings, emails, and

phone calls. (Id. at 13-14.) Only one was an in-person meeting including all four alleged

members, held on March 22, 2017. (See id. at 13). One other in-person meeting, involving

Harris and Ford and White House personnel, occurred on April 19, 2017. (Id.) The remaining

eleven contacts were conference calls, emails, email exchanges, or “communications.” (Id. at

13-14.) Defendants also asserted in response to Interrogatories 7 and 8 that “[n]o draft, proposal,

or issuance of any group recommendation, advice, or report regarding infrastructure policy as a

result of these ‘preliminary discussions’ has been identified,” and thus no non-government

individual had a “vote on or veto in” any group recommendations. (Id.)

Defendants qualified their responses by stating that, because both Cordish and Gribbin no

longer worked at the White House Office, their availability was limited. (Id. at 13.) Similarly, in

a Verification appended to the responses, White House Information Technology Director Charles

C. Herndon stated that the “complete accuracy” of the responses could not be guaranteed

because Cordish and Gribbin “no longer work for the government and are outside the White

House’s control”; however, Herndon verified “that officials from the White House Office

undertook a process to ensure the accuracy of these interrogatory responses to the best of their

ability,” including by “consulting with” Gribbin and Cordish. (Id. at 16.)

In its opposition, plaintiff argues that the complaint and the interrogatory responses

support a finding that a de facto advisory committee existed. (See Pl.’s Supp. Opp’n to Defs.’

Mot. to Dismiss or, in the Alternative, Mot. to Compel (“Pl.’s Supp. Opp’n”), Aug. 31, 2018,

ECF No. 31.) Plaintiff also contends that defendants’ responses to the interrogatories are

insufficient, and asks, as an alternative to granting defendants’ motion to dismiss, that defendants

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be compelled to provide further jurisdictional discovery. (See id.) Defendants filed a reply in

support of their supplemental briefing and opposed the motion to compel. (See Defs.’ Supp.

Reply in Support of Defs.’ Mot. to Dismiss & Mem. in Opp’n to Pl.’s Alternative Mot. to

Compel (“Defs.’ Supp. Reply”), Sept. 28, 2018, ECF No. 33.)

The question now to be decided is whether plaintiff has sustained its burden to proffer

sufficient evidence of a de facto advisory committee within the meaning of FACA so that the

Court may exercise subject-matter jurisdiction.

LEGAL STANDARDS

I. STANDING AND JURISDICTION

To establish Article III standing, a plaintiff must demonstrate that (1) they have suffered

an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3)

the injury is likely to be redressed by a favorable decision. See NB ex rel. Peacock v. Dist. of

Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)). A plaintiff may establish an injury-in-fact under a theory of “informational

injury” by showing that he or she was not able “to obtain information which must be publicly

disclosed pursuant to a statute.” Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998); see

also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C.

Cir. 2011) (recognizing this theory of “informational standing”). Failure to comply with the

requirements of FACA gives rise to such an injury. See Pub. Citizen v. DOJ, 491 U.S. 440, 449

(1989) (“[R]efusal to permit appellants to scrutinize [the committee’s] activities to the extent

FACA allows constitutes a sufficiently distinct injury to provide standing to sue.”); Byrd v. EPA,

174 F.3d 239, 243 (D.C. Cir. 1999) (“According to the Supreme Court, a refusal to provide

information to which one is entitled under FACA constitutes a cognizable injury sufficient to

establish Article III standing.”).

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 On a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), “the

court may consider the complaint supplemented by undisputed facts evidenced in the record, or

. . . 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) (quoting Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Ctr. for Biol. Diversity v. Tidwell, 239 F.

Supp. 3d 213, 219 (D.D.C. 2017) (“[T]he 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.”) (internal quotation marks and citation omitted). Where a defendant’s motion to dismiss

attacks “the factual basis of the court’s jurisdiction,” jurisdictional discovery is appropriate to

assist the Court in resolving issues of fact relevant to standing. Phx. Consulting, Inc. v. Rep. of

Angola, 216 F.3d 36, 40 (D.C. Cir. 2000).

II. FEDERAL ADVISORY COMMITTEE ACT

FACA was enacted in 1972 “to ensure that new advisory committees be established only

when essential and . . . that their creation, operation, and duration be subject to uniform standards

and procedures; that Congress and the public remain appraised of their existence, activities, and

cost; and that their work be exclusively advisory in nature.” Pub. Citizen, 491 U.S. at 446 (citing

5 U.S.C. app. 2 § 2(b)). To achieve this goal, 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.” Am. Civil Liberties Union v. Trump (“ACLU”), 266 F. Supp. 3d 133, 135 (D.D.C.

2017) (citing 5 U.S.C. app. 2 §§ 9(c), 10(a)(1), 10(a)(2), 10(a)(3), 10(c)). Advisory committees

must also 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

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advisory committee. 5 U.S.C. app. 2 § 10(b). Additionally, an advisory committee must “be

‘fairly balanced in terms of the points of view represented and the functions to be performed,’

and ‘not be inappropriately influenced by the appointing authority or by any special interest.’”

ACLU, 266 F. Supp. 3d at 135 (quoting 5 U.S.C. app. 2 §§ 5(b)(2)-(3)).

Given the serious separation-of-powers concerns inherent in legislation that imposes

requirements on executive decision-making, courts interpret FACA narrowly. The executive

may, of course, consult with private advisors or stakeholders without triggering FACA. The

Supreme Court has therefore admonished that “FACA was enacted to cure specific ills . . . ;

although its reach is extensive, we cannot believe that it was intended to cover every formal or

informal consultation between the President or an Executive agency and a group rendering

advice.” Pub. Citizen, 491 U.S. at 453 & n.8. The key question is whether group advice, as

opposed to individual advice, is sought or rendered. See, e.g., Ass’n of American Physicians &

Surgeons, Inc. v. Clinton (“AAPS”), 997 F.2d 898, 913-14 (D.C. Cir. 1993).

ANALYSIS

I. DEFENDANTS’ MOTION TO DISMISS

A. What Is a FACA Advisory Committee?

To determine if FACA applies, it must be determined whether a de facto advisory

committee existed before the President revoked EO 13805. FACA defines an advisory

committees as “any committee . . . established or utilized by the President, or . . . by one or more

[federal] agencies, 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(2). Despite

this “imprecise definition,” courts narrowly construe FACA’s reach. Nader v. Baroody, 396 F.

Supp. 1231, 1233 (D.D.C. 1975); see also Pub. Citizen, 491 U.S. at 452-53, 463-4 (rejecting a

“literalistic reading” of the terms “establish” and “utilize” because Congress could not have

12
intended FACA to apply “to any group of two or more persons, or at least any formal

organization, from which the President or an Executive agency seeks advice”). The question of

whether a group has been “established or utilized” by the executive is thus subject to “narrow

interpretation”; a committee is deemed to be “established” when it has been “actually formed” by

the executive or a government agency (and not by some other entity), and it is deemed to be

“utilized” if the executive exercises “management and control” over the group’s membership and

mission. Byrd, 174 F.3d at 245-48.

“It is a rare case when a court holds that a particular group is a FACA advisory

committee over the objection of the executive branch.” AAPS, 997 F.2d at 914. Although courts

on occasion have found FACA liability despite arguments by the executive that the law did not

apply, see, e.g., Nw. Forest Res. Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994) (holding that

a group of “technicians who supply decisionmakers with data” was an advisory committee

subject to FACA); it is far more often that the government prevails in such cases. See, e.g.,

Judicial Watch, Inc. v. Clinton, 76 F.3d 1232, 1233-34 (D.C. Cir. 1996) (holding that a

“Presidential Legal Expense Trust” was not subject to FACA); Ctr. for Biol. Diversity, 239 F.

Supp. 3d at 224-25 (holding that non-government scientists were not de facto advisory

committee members); Freedom Watch, Inc. v. Obama, 930 F. Supp. 2d 98, 102 (D.D.C. 2013)

(holding that health policy “stakeholder” meetings did not create a de facto FACA advisory

committee). Thus, although a de facto advisory committee may be a viable theory, at a

minimum, it is difficult to prove. 2

2
But see In re Cheney, 334 F.3d 1096, 1117-18 (D.C. Cir. 2003) (Randolph, J., dissenting)
(arguing that “the de facto member doctrine” should be “cast aside,” and emphasizing the
“constitutional difficulties” posed by the de facto FACA committee theory), vacated by Cheney,
542 U.S. 367.
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 To determine whether a de facto FACA advisory committee exists, courts look to

whether the purported committee has been “asked to render advice or recommendations, as a

group, and not as a collection of individuals.” AAPS, 997 F.2d at 913. The collective judgment

of the group is essential to the inquiry:

The group’s activities are expected to, and appear to, benefit from the interaction
among the members both internally and externally. Advisory committees not
only provide ideas to the government, they also often bestow political legitimacy
on that advice. . . . Advisory committees are not just mechanisms for transmitting
policy advice on a particular subject matter to the government. These committees
also possess a kind of political legitimacy as representative bodies.

Id. at 913-14.

Plaintiff argues that the Infrastructure Council is subject to FACA because it had an

organized structure, a fixed membership, and a specific purpose. It is true that these

characteristics, among others, can aid courts in determining whether FACA applies. See AAPS,

997 F.2d at 914 (“In order to implicate FACA, the President, or his subordinates, must create an

advisory group that has, in large measure, an organized structure, a fixed membership, and a

specific purpose.”); Nader, 396 F. Supp. at 1233 n.4 (suggesting that FACA may apply where a

group was initiated by a federal official, meets regularly, and has a fixed membership, defined or

specific purpose “of providing advice regarding a particular subject,” and “organizational

structure (e.g., officers) and a staff”) (quoting OMB Memorandum ¶ 4(a)(1), 38 Fed. Reg. 2306,

2307 (Jan. 23, 1973) (setting forth standards for FACA implementation)). However, these

factors, while potentially useful, are not sufficient for determining the existence of a FACA

advisory committee. Rather, they are only tools that a court may use to analyze the

determinative question of whether a group was in a position to render collective advice on issues

of public policy.

What is clear from the case law is that, for an individual to be considered a FACA

committee member, he or she must have a “vote in, or if the committee acts by consensus, a veto

14
over the committee’s decisions.” In re Cheney, 406 F.3d at 728; see also Cheney, 542 U.S. at

393 (Stevens, J., concurring) (noting that “only substantive participation” evidenced by “whether

any non-Government employees voted on [committee] recommendations or drafted portions of

the committee’s report” would support a finding that non-government individuals were de facto

committee members). This principle of a “vote” or “veto” in committee recommendations or

decisions is premised on the notion that the committee is expected to make substantive group

recommendations or decisions, and that it does so at the behest of the executive. Absent any

indication that such a structure exists, there can be no FACA obligation.

B. Plaintiff’s Arguments

Applying these legal principles, the Court concludes that plaintiff’s argument that the

Infrastructure Council existed as a de facto advisory committee fails. Plaintiff is correct that four

non-government individuals were designated for participation in the Infrastructure Council. In

addition, as defendants’ interrogatory responses confirm, there were ongoing discussions

between non-government individuals and White House employees in January through July 2017.

But, these discussions are not enough to support a finding of a de facto FACA committee, for

there is no evidence that the discussions ever matured to the point that there were group

discussions regarding infrastructure policy for the purpose of making group recommendations to

the executive.

Plaintiff emphasizes the sheer number of meetings and other communications identified

in defendants’ interrogatory responses—thirteen over the course of five months. (See Pl.’s Supp.

Opp’n at 3.) But the number of meetings is not dispositive, or even particularly probative,

especially where, as here, many of these “meetings” were not meetings at all but simply email

exchanges or phone calls, which apparently did not take place according to a regular schedule.

See, e.g., Nader, 396 F. Supp. at 1232, 1234 (holding that FACA did not “apply to all

15
amorphous, ad hoc group meetings”). Plaintiff notes that at least four of the meetings or

communications identified by defendants included all four purported members or their staffs: a

“meeting” on March 22, 2017; “communications” in May 2017; “email communication” with

staff of all four men on July 6, 2017; and an email from Gribbin to all four men on July 20, 2017.

(See Pl.’s Supp. Opp’n at 4; Defs.’ Resp. to Interrog. at 13-14.) Again, this overstates the nature

of the discussions. Only one of these four encounters was an in-person meeting of the entire

group. (See Defs.’ Resp. to Interrog. at 13 (identifying the March 22, 2017 meeting).) Most of

the thirteen contacts appear to have been informal exchanges, arranged on an ad-hoc basis, often

including only one or two of the purported council members or their staffs. (See, e.g., id. at 14

(identifying a “series of emails” in May 2017 between “staff assistants” of LeFrak and Harris

and White House Office employees).)

More importantly, plaintiff cannot prevail because the Infrastructure Council did not

develop to the point that it was “asked to render advice or recommendations, as a group.” AAPS,

997 F.2d at 913-14. The issue of group advice has stymied FACA plaintiffs before. In Freedom

Watch, another judge on this Court held that “stakeholder meetings” at which the executive

solicited input on healthcare policy did not give rise to a de facto FACA committee. 930 F.

Supp. 2d at 101-02 (granting summary judgment to the government). Relying on declarations

submitted by defendants, the court found that “the stakeholder meetings [did] not meet the

qualifications of FACA because they solicited ‘individual views’ and a broad range of ‘unique

perspectives and experiences’ and the members ‘were not asked to, and did not, provide advice

or recommendations as a group.’” Id. at 101-02 (quoting a government declaration); see also

AAPS, 997 F.2d at 102; Ctr. for Biol. Diversity, 239 F. Supp. 3d at 224-25 (concluding that non-

federal scientists were not de facto FACA committee members because their input had been

sought on an individual basis).

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 Similarly, in this case the Infrastructure Council was never in a position to provide group

policy recommendations. Rather, the group engaged in “preliminary discussions” regarding

“how such a council would operate and what the mission of such a council would be.” (Cordish

Decl. ¶ 5.) These discussions included topics such as:

what sectors of infrastructure would be represented in the council’s membership;
what the council’s mission would be, particularly given that the White House was
engaged in its own efforts in the area of infrastructure policy; whether the White
House would provide financial support to the council; whether the council would
have a dedicated staff; what federal entity would provide administrative support
to the council; what the end product of the council’s work would be.

(Defs.’ Supp. Br. at 3-4 (quoting Defs.’ Resp. to Interrog. at 11-12).) Any group decisions or

recommendations pertained to planning the anticipated committee. (See Defs.’ Resp. to Interrog.

at 12 (“Discussions in the period prior to July 19, 2017, when the President issued Executive

Order 13805, focused on many of the administrative issues that ultimately were addressed in the

Executive Order. . . .”); see also EO 13805 § 4, 82 Fed. Reg. at 34383 (describing the planned

council’s mission and focus areas). 3) The next step was anticipated to be the drafting of a formal

charter, which would describe the committee’s “operation and the responsibilities of its members

in greater detail,” but this step was not finalized because EO 13805 was revoked. (Cordish Decl.

¶¶ 6, 8.) Defendants also indicate that their review identified “no meeting at which a group

recommendation or group advice regarding infrastructure policy was proposed by or on behalf

of, or solicited from, a group including two or more of” the alleged committee members. (Defs.’

Resp. to Interrog. at 10.)

3
See id. (“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.”).
17
 Plaintiff has retreated from the argument it made prior to the revocation of EO 13805,

and now it contends that the council’s purpose was to advise on what the mission and scope of

the planned committee should be. Plaintiff, however, is incorrect that such discussions are

sufficient to trigger FACA. Plaintiff cites no authority for its assertion that logistical discussions,

including discussions of how to meet the statutory requirement that a committee charter be

executed and filed before FACA meetings may be held, see 5 U.S.C. app. 2 § 9(c), should have

taken place “within the government before initiating the FACA process,” rather than

“outsource[ing] all the critical analysis and decision-making regarding the existence, work, and

scope of the Council.” (Pl.’s Supp. Opp’n at 6.) But, as defendants note in reply, the General

Services Administration, which implements FACA, follows regulations that include an

exemption for meetings “convened solely to gather information, conduct research, or analyze

relevant issues and facts in preparation for a meeting of the advisory committee, or to draft

position papers for deliberation by the advisory committee. . . .” (Defs.’ Supp. Reply at 6 n.5

(quoting 41 C.F.R. 102-3.160(a)).)

The most reasonable reading of FACA permits initial meetings—including meetings with

non-government individuals—to determine the scope and mission of an advisory council before

FACA applies. Thus, the language of EO 13805, which broadly identifies the would-be

committee’s planned areas of focus, reflects the planning communications that had taken place.

See 82 Fed. Reg. at 34383; Defs.’ Resp. to Interrog. at 12-13 (“While some preliminary

discussions identified specific infrastructure policy issues, such discussion was for the purpose of

identifying topics that would be listed as areas of focus in the description of the council’s

mission that would be included in the Executive Order.”).

Plaintiff also incorrectly argues that two communications that occurred after the issuance

of EO 13805—an email from Mr. Gribbin to the four alleged committee members on July 20,

18
2017, and a conference call on July 27, 2017—conclusively prove that the group’s

communications went beyond “preliminary discussions.” (See Pl.’s Supp. Opp’n at 7 (citing

Defs.’ Resp. to Interrog. at 14).) These communications “addressed what would be entailed in

complying with FACA; who should be invited to join the council and how potential members

would be vetted; how the members of the council, once it was formed, would address potential

conflicts of interest; and what should be included in the council’s charter.” (Defs.’ Resp. to

Interrog. at 13.) There is thus no indication that either communication was anything but

preliminary in nature.

Plaintiff mounts various other arguments in an effort to work around the fact that the

Infrastructure Council never was actually in a position to develop or render group policy advice.

Chief among these arguments is the theory that FACA “applies to the provision of group advice

of all kinds, not just policy advice.” (Pl.’s Supp. Opp’n at 6.) This gloss on the relevant case

law is overbroad. Courts have held that FACA can apply to “narrative summaries of scientific

information” rather than strictly “policy recommendations.” Heartwood v. U.S. Forest Serv.,

431 F. Supp. 2d 28, 34-35 (D.D.C. 2006); see also Nw. Forest Res. Council, 846 F. Supp. at

1013 (finding that FACA applied to a group of “technicians” brought together to “supply

decisionmakers with data”). However, the cases cited by plaintiff involved the provision, as a

group, of information intended to directly inform executive policymaking. 4 Despite plaintiff’s

protestations, there can be no FACA obligation without some nexus between the group’s purpose

and the executive’s policymaking goals. See Judicial Watch, Inc. v. Clinton, 76 F.3d at 1234

(holding that FACA did not apply to a group formed to advise the President on the permissibility

4
See Heartwood, 431 F. Supp. 2d at 35 (noting that the committee’s “drafts and . . . assessment
provide the framework, context and information that the [agency] will rely on in making policy
decisions”); Nw. Forest Res. Council, 846 F. Supp. at 1013 (noting that the committee at issue
did render policy advice to the executive, although that fact was not dispositive).
19
of “methods to solicit funds for his legal expenses,” because the group did not render “public

policy advice.”). The purpose of any group discussions that did occur never progressed from the

preliminary work of establishing a FACA committee to the actual work of such a committee, for

EO 13805 was revoked before the group was ever in a position to “render collective advice or

produce any other type of collaborative work product.” Freedom Watch, 930 F. Supp. 2d at 101.

For the same reasons, plaintiff’s reliance on a case from another jurisdiction for the

proposition that FACA relief is “appropriate before an advisory committee has completed its

function,” is inapposite. (See Supp. Opp’n at 6 (citing Seattle Audubon Soc’y v. Lyons, 871 F.

Supp. 1291, 1309 (W.D. Wash. 1994), aff’d sub nom. Seattle Audubon Soc’y v. Moseley, 80 F.3d

1401 (9th Cir. 1996)).) In Seattle Audubon, the plaintiff had asked the court to order FACA

compliance, via injunctive relief, after a committee’s report, which made policy

recommendations, had been reviewed and acted upon by the executive. See id. at 1309-10. The

court noted that it may be appropriate to order FACA compliance while an advisory committee is

still active, but “once a committee has served its purpose, courts generally have not invalidated

the agency action even if there were earlier FACA violations.” Id. at 1309. This principle does

nothing to solve plaintiff’s central problem, which is that the Infrastructure Council never

became operational as a FACA advisory committee.

Plaintiff also argues that the Administration made policy decisions and took actions that

“mirror” suggestions made by members of the Infrastructure Council. (See Am. Compl. ¶ 36

(discussing, for example, a White House “fact sheet detailing ways it intended to reduce project

permitting time from ten years to two years,” Executive Orders aimed at reducing permitting

times for infrastructure projects, and the revocation of the Federal Flood Risk Management

Standard).) To the extent that the Administration’s actions reflect advice allegedly received from

LeFrak or others, there is no evidence that the Administration’s policy course was influenced by

20
group recommendations from the Infrastructure Council. Even assuming arguendo that the facts

suggest a causal relationship, there is no reason to believe that any recommendations were made

as a group, rather than by LeFrak or others as individuals. See, e.g., AAPS, 997 F.2d at 915

(explaining that FACA does not “cover every instance when the President (or an agency)

informally seeks advice from two or more private citizens”).

Plaintiff’s allegations detail other purported Infrastructure Council meetings not among

the thirteen “preliminary discussions” identified in defendants’ responses. Plaintiff alleges,

based on contemporaneous news reports, that at least three other “encounters and meetings

occurred,” including (1) a February 18, 2017 meeting between LeFrak and President Trump to

discuss construction of a wall on the Mexican border; (2) a March 8, 2017 meeting on

infrastructure at the White House, with LeFrak, Roth, Harris, Ford, Secretary Chao, and possibly

Jared Kushner; and (3) a June 7, 2017 speech by President Trump on infrastructure in Cincinnati,

attended by LeFrak, Gribbin, and Cabinet members. (Am. Compl. ¶ 33.) These additional

events do not give rise to FACA obligations because they did not involve solicitation or

provision of group advice on infrastructure policy. The February 18 meeting was between the

President and Mr. LeFrak in his individual capacity, and the March 8 meeting involved

individuals with no connection to the Infrastructure Council (such as Elon Musk and Lynn

Scarlett) and “involved the president hearing views of individuals, not the group advice of an

infrastructure advisory council.” (Defs.’ Supp. Reply at 9.) Mr. LeFrak’s attendance at a speech

by the President is also of no import; the allegations do not indicate that any advice was solicited,

but even if it had been, it would have been from LeFrak on an individual basis. (See id.) On the

record before the Court it is clear that any recommendations by LeFrak or others are not, as

plaintiff argued before the Court ordered jurisdictional discovery, “more . . . plausibly construed

21
as recommendations made on behalf of the Council.” (Opp’n at 14.) Rather, the record supports

the inference that no group advice was expected or rendered at these encounters.

Finally, plaintiff points to contemporaneous press accounts, prior to the issuance of EO

13805, which suggest that Infrastructure Council members considered themselves to be advisory

committee members. 5 The statements do not demonstrate that a FACA committee was

operational. Rather, they are consistent with the evidence in the record that the group had been

convened for preliminary planning activities, and at most the designated individuals gave advice

on infrastructure policy not as a group, but as individuals. Indeed, some of plaintiff’s own

sources strongly suggest that it was mutually understood that the FACA advisory committee had

not yet been established. One account, for example, quotes LeFrak stating that the group’s

“assignment is to advise” the President on infrastructure spending, but immediately goes on to

state that “LeFrak isn’t discussing the council further because it hasn’t been formed yet, said his

spokesman, Steve Solomon.” (Mulholland & Niquette, Trump Ties to Infrastructure Advisers

Roth, LeFrak Run Deep, Bloomberg News (Feb. 15, 2017) (emphasis added).)

These contemporaneous accounts thus lend support to the Court’s finding that no FACA

committee was established or utilized, and, as a result, the Court lacks subject-matter jurisdiction

over plaintiff’s claims. 6

5
See, e.g., Am. Compl. ¶ 28(c) (LeFrak describing himself as an “advisor”); id. ¶ 28(a) (LeFrak
stating in February 2017 that “[p]art of our assignment is to advise him [President Trump] as best
we can on the merits of these different things”); id. ¶ 28(b) (Roth stating in February 2017 that
he and LeFrak had been asked “to be an advisor to him and the administration with respect to
infrastructure matters”); id. ¶ 29 (Secretary Chao describing the four men as “volunteers . . .
finding the best way to build our infrastructure for the future”).
6
Plaintiff’s amended complaint asks the Court to grant relief pursuant to the Administrative
Procedure Act and mandamus relief pursuant to 28 U.S.C. § 1361, both on the basis of alleged
FACA violations. Because the Court has concluded that the Infrastructure Council was not a de
facto FACA committee, plaintiff does not have informational standing to bring these claims.
Nor can plaintiff have organizational injury, as it argues it does, where no FACA obligation
existed and thus no legal injury occurred. See League of Women Voters of U.S. v. Newby, 838
22
II. PLAINTIFF’S MOTION TO COMPEL

Plaintiff also argues that, if the Court determines there is insufficient evidence to find that

a de facto advisory council existed, the Court should refrain from granting defendants’ motion to

dismiss but, instead, it should compel further discovery. “The district court retains ‘considerable

latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,’

but it must give the plaintiff ‘ample opportunity to secure and present evidence relevant to the

existence of jurisdiction.’” Phx. Consulting Inc., 216 F.3d at 40 (quoting Prakash v. Am. Univ.,

727 F.2d 1174, 1179-80 (D.C. Cir. 1984). “In order to avoid burdening a sovereign that proves

to be immune from suit, however, jurisdictional discovery should be carefully controlled and

limited. . . .” Id. (citing Foremost-McKesson, Inc. v. Islamic Repub. of Iran, 905 F.2d 438, 449

(D.C. Cir. 1990)).

Plaintiff contends that the interrogatory responses are insufficient because (1) the

government fails to demonstrate that it undertook sufficient efforts to fully respond to the

interrogatories and (2) the responses fail to comport with Federal Rule of Civil Procedure 33,

which requires that “[t]he person who makes the answers [to interrogatories] must sign them,”

Fed. R. Civ. P. 33(b)(5), and in doing so must “have a basis for signing the responses and for

thereby stating on behalf of the [party] that the responses are accurate.” (Pl.’s Supp. Opp’n at 17

(quoting Shepherd v. Am. Broadcasting Cos., Inc., 62 F.3d 1469, 1482 (D.C. Cir. 1995)).)

F.3d 1, 8 (D.C. Cir. 2016) (providing that an organization can have “organizational standing”
based on injury caused by actions that impaired the organization’s activities).
Defendants also argue that their motion to dismiss should be granted under several
additional theories—plaintiff’s claims are unripe or moot, plaintiff fails to establish the Court’s
jurisdiction over their mandamus claims against the President, and plaintiff fails to state a claim
under the APA upon which relief can be granted. (See Mot. at 24-30.) Because the Court grants
defendants’ motion to dismiss for lack of subject-matter jurisdiction, the Court need not address
these additional arguments.
23
 After the Court ordered defendants to respond to limited interrogatories for purposes of

jurisdictional discovery, defendants conducted a “review of calendar records and e-mail of the

individuals within the White House Office and Department of Transportation, other than the

President himself, who have been identified by Defendants as likely to have had meetings with

any of the [alleged council members].” (Defs.’ Resp. to Interrog. at 9.) Defendants also

“consult[ed] with those individuals to the extent feasible,” including by reaching out to Gribbin

and Cordish, who no longer work at the White House. (Id.) Plaintiff contends that these

descriptions do not provide sufficient details (e.g., about the method used to search email and

calendar records) to establish that the search was reasonable.

Given the Court’s “latitude” in overseeing jurisdictional discovery, Phx. Consulting, 216

F.3d at 40, and the general mandate to “control[] and limit[]” jurisdictional discovery against the

executive, id., the Court finds defendants’ responses to be adequate. They answer the questions

posed by the Court; notably, they clarify the nature of the “preliminary discussions” at the heart

of the jurisdictional question under review. Defendants were not required to explain every detail

of their search process; rather, the adequacy of their response is held to a reasonableness

standard. See, e.g., Prasad v. George Washington Univ., 323 F.R.D. 88, 93 (D.D.C. 2017)

(quoting Fed. R. Civ. P. 26(g) committee note) (noting that what constitutes a “reasonable”

discovery response “is a matter for the court to decide on the totality of the circumstances”)); see

also Freedom Watch, 930 F. Supp. 2d at 103 (denying request for additional discovery pursuant

to Fed. R. Civ. P. 56(d) because plaintiff failed to “specif[y] what facts it intends to discover to

rebut the government’s evidence”).

Plaintiff also argues that the Verification appended to the responses, signed by White

House Information Technology Director Herndon, is deficient because it explicitly states that the

“White House Office cannot warrant the complete accuracy of these interrogatory responses

24
based on personal knowledge because [Cordish and Gribbin] no longer work for the government

and are outside the White House’s control.” (Defs.’ Resp. to Interrog. at 16.) Plaintiff also

contends that Herndon’s assertion that White House Office staff “undertook a process to ensure

the accuracy . . . to the best of their ability” by consulting with Cordish and Gribbin and

“searching and reviewing” records, including calendar entries and emails, is insufficient because

under Rule 33 Herndon must verify the accuracy of the government’s response, not merely

verify that a “process” was undertaken. Rule 33(b)(5) requires that the person giving

interrogatory responses must sign them, and Herndon did so. He also has “a basis for signing”

them and for stating that they are accurate, Shepherd, 62 F.3d at 1482, as he describes the

reasonable efforts that were made to satisfactorily answer the Court’s interrogatories. The

government thereby has adequately satisfied the basic requirements of Rule 33.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss, ECF No. 14, will be granted.

Plaintiff’s motion in the alternative to compel, ECF No. 31, will be denied.

_______________________

ELLEN SEGAL HUVELLE
United States District Judge
Date: December 10, 2018

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