American Oversight v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT,
Plaintiff,
V. Civil Case No. 20-00716 (RJL)
JOSEPH R. BIDEN, JR., in his official
capacity as PRESIDENT OF THE
UNITED STATES, et al.,

Defendants.

Nema Nem Nee” Nec” Nee Nee Ne Nee Ne eee ee”

-—<.

MEMORANDUM OPINION
(September 2, 2021) [Dkt. #16]

In March 2020, plaintiff American Oversight filed this action against the
Executive Office of the President as well as former President of the United States Donald
J. Trump! and Jared Kushner’ in their official capacities (collectively “defendants”)
alleging that defendants established an advisory committee to counsel then-President
Trump on the “use of his clemency power” during the previous Presidential

Administration. See Compl. ff 3, 98-127. Plaintiff contends this committee, which it

! The current President of the United States, Joseph R. Biden, Jr., is automatically substituted for Donald
J. Trump under Fed. R. Civ. P. 25(d).

* The Complaint styles its claims against Jared Kushner as against him in his official capacity as a “Senior
Advisor to the President of the United States.” See Compl. [Dkt. #1]. Plaintiff clarifies that the suit “is
properly understood” as against Mr. Kushner in his “official capacity as the Director of the Office of
American Innovation.” Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (“P1.’s Opp’n’’) [Dkt.
#17]; see also Compl. { 10. The parties do not dispute that the Office of American Innovation (“OAT”) is
no longer operational under the current Administration and therefore lacks a Director or other “successor”
to Mr. Kushner who could be substituted as a party under Federal Rule of Civil Procedure 25(d). Defs.’
Resp. to Pl.’s Supplemental Mootness Brief (“Defs.’ Supp. Br.”) [Dkt. #22] at 3; Pl.’s Reply to Defs.’
Mem. of Law on Mootness [Dkt. #26].
refers to as the “Clemency Task Force,” was subject to the Federal Advisory Committee
Act (““FACA”) and violated the statute’s requirements by, among other things, failing to
file a charter, failing to provide public notice of and access to its meetings, and failing to
provide documents related to the committee’s purported activities. Id. J§] 94-97.
Invoking FACA (Counts I-IID, the Administrative Procedure Act (Count IV), and the
Mandamus and Venue Act (Count V), plaintiff seeks an Order declaring defendants

violated FACA’s provisions and requiring compliance therewith. Jd. [¥ 98-127.

Presently before the Court is defendants’ motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and 12(b)(6). Defs.’ Mot. to Dismiss (“Defs.’ Mot.’’) [Dkt.
#16]. Defendants assert that no committee subject to FACA ever existed, plaintiff has
failed to state a claim under which relief may be granted, and this Court lacks jurisdiction
to otherwise provide the relief plaintiff seeks. Jd. at 1-3. Upon consideration of the
parties’ pleadings, the relevant law, and the entire record, I agree with defendants that
plaintiff has failed to adequately plead the existence of a committee subject to FACA and
therefore cannot sustain its action under any theory. Accordingly, defendants’ Motion to
Dismiss is GRANTED and plaintiff's Complaint is DISMISSED.

BACKGROUND

A. Legal Background

Congress enacted FACA in 1972 to oversee the creation and use of advisory
committees in the Executive Branch, Pub. T.. No. 92-463, 86 Stat. 770 (1972); see alsa

Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 445-46 (1989). The statute’s purpose
is to “ensure that new advisory committees be established only when essential and that
their number be minimized; that they be terminated when they have outlived their
usefulness; that their creation, operation, and duration be subject to uniform standards
and procedures; that Congress and the public remain apprised of their existence,
activities, and cost; and that their work be exclusively advisory.” Pub. Citizen, 491 U.S.
at 445-46.

To achieve these ends, FACA requires advisory committees to, among other
things, file a charter, make certain records publicly available, and give the public advance
notice of and access to its meetings. See 5 U.S.C. app. 2 §§ 9(c), 10(b), 10(c). As
particularly relevant here, unless an exception applies under the Freedom of Information
Act (“FOIA”), advisory committees subject to FACA must produce “records, reports,
transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other
documents which were made available to or prepared for or by [the committee].” Jd. §
10(b).

The statute defines an “advisory committee” as “any committee, board,
commission, conference, panel, task force, or other similar group... whichis...
established or utilized by the President [or one or more federal agencies] . . . in the
interest of obtaining advice or recommendations.” 5 U.S.C. app. 2 § 3(2). Committees
that are “composed wholly of full-time, or permanent part-time, officers or employees of
the Federal Government” are exempt. Id.

Although this definition is expansive, “FACA does not ‘cover every formal and

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

3
rendering advice.’” VoteVets Action Fund v. U.S. Dep’t of Veterans Affairs, 992 F.3d
1097, 1101 (D.C. Cir. 2021) (quoting Pub. Citizen, 491 U.S. at 453). In order to
implicate FACA, a committee must have “in large measure, an organized structure, a
fixed membership, and a specific purpose.” Ass’n of Am. Physicians & Surgeons, Inc. v.
Clinton, 997 F.2d 898, 914 (D.C. Cir. 1993) (hereinafter “AAPS”’). The statute does not
reach “executive consultations on policy issues with ad hoc collections of private

individuals who are not convened ‘to render advice or recommendations, as a group.’”

VoteVets, 992 F.3d at 1101 (quoting AAPS, 997 F.2d at 913).

B. The Present Dispute

Plaintiff brings this action in the wake of a Washington Post article discussing
then-President Trump’s exercise of the clemency power.’ See Compl. {§ 1-2, 58. In the
article, which was published on February 19, 2020 and discussed a series of clemency
decisions announced the day before, reporters from the Post claim, citing anonymous
sources, that then-President Trump had “assembled a team of advisers to recommend and
vet candidates for pardons.” Ex. 2 to Defs.’ Mot. [Dkt. #16-3]. According to the article,

an effort to “revamp” the clemency process in a manner that would minimize the

3 In considering a motion to dismiss, courts “may consider the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the complaint, or documents upon which the
plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the
complaint but by the defendant in a motion to dismiss.” Gumpad v. Comm’r of Soc. Sec. Admin., 19 F.
Supp. 3d 325, 328 (D.D.C. 2014) (cleaned up); accord EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997). Here, although plaintiff does not attach the Washington Post article to its
Complaint, it repeatedly references and cites the article. Compl. § 58; see also Ex. A to the Compl. [Dkt.
1-1}. Accordingly, I have considered the article, which is attached to defendants’ motion to dismiss, in
resolving the present motion.
Department of Justice’s traditional role had resulted in an “informal task force”
consisting of “at least a half-dozen presidential allies.” Jd. The article states that Jared
Kushner, a senior advisor and son-in-law to President Trump, played “a leading role,”
and mentions numerous individuals as working with the White House on clemency
issues.’ It describes this group as an “informal network of advocates providing clemency
recommendations” to the President. Jd. According to the Post, the group held meetings,
but the article is silent as to many specifics, including how often the group met, who was
in attendance, and how the purported task force functioned. Ultimately, the article
concludes that “[i]t’s not clear how the people in Trump’s informal network will select
people to recommend for clemency” going forward. Id.

Three weeks after the article’s publication, plaintiff brought suit. See generally
Compl. The Complaint’s allegations track the Post article closely. Plaintiff claims that
in or around late 2019, then-President Trump established the Clemency Task Force to
advise him on the exercise of his clemency power. Jd. §3. The committee, plaintiff
alleges, was led by Jared Kushner and included all of the individuals referenced in the
article. Id. J] 39-57. Plaintiff asserts “on information and belief’ that the Task Force
“met several times” and reviewed, discussed, and provided collective advice and
recommendations to the President regarding applications for pardons or commutations
that were submitted to the White House Office of American Innovation (“OAI”). Id. 4f

61-63. In particular, plaintiff alleges that the committee “worked together” to provide

4 Specifically, the article mentions Ja’Ron Smith, Pam Bondi, Alice Johnson, Matthew Whitaker, Van
Jones, Brett Tolman, Mark Holden, Paul Larkin, Marc Levin, and Kevin Roberts.

5
advice on a series of commutations and pardons announced on February 18, 2020. Id.
68-73. Plaintiff also alleges that the committee provided collective advice to the
President on potential reforms to the pardon and commutation process. Id. J 79.

In Counts I through II, the Complaint alleges violations of FACA’s procedural
requirements. Specifically, plaintiff alleges defendants failed to file a charter prior to the
Clemency Task Force commencing official activity in violation of 5 U.S.C. app. 2 § 9(c)
(Count I); failed to provide public notice and access to Clemency Task Force meetings in
violation of 5 U.S.C. app. 2 § 10(a) (Count II); and failed to provide access to Clemency
Task Force documents in violation of 5 U.S.C. app. 2 § 10(b) (Count III). Jd. Jf 105-16.
In Count IV, plaintiff alleges defendants violated the APA by failing to satisfy FACA’s
requirements. Jd. J 117-23. Finally, in the alternative, plaintiff seeks in Count V a writ
of mandamus compelling defendants’ compliance. Jd. {§] 124-27.

On June 12, 2020, defendants moved to dismiss, arguing, among other things, that
plaintiff failed to adequately plead the existence of a committee subject to FACA. Defs.’
Mot. at 1-2. In conjunction with their motion, defendants submitted the declaration of
Ja’Ron K. Smith, the deputy director of OAI and a deputy assistant to the President with
a portfolio covering criminal justice reform and clemency issues. Ex. 1 to Defs.’ Mot.
(“Smith Decl.”) [Dkt. #16-2]. Smith avers that while the President and his advisers
received advice on clemency issues from a variety of sources, including private
individuals and entities, “the White House never established a group containing
individuals not employed by the federal government to provide collective advice on such

issues.” Id. 12. Smith concedes that there was one meeting on November 19, 2019

6
with four members of the purported Clemency Task Force where White House officials
solicited input on clemency issues, but avers that this was a “one-off event” and that the
individuals shared only their “individual views” on clemency issues. Jd. ff] 20-21.
Smith avers no other similar meetings ever occurred including the same individuals or a
substantially similar set of individuals. Jd.

On March 12, 2021, in light of the change in Presidential Administrations, I
ordered supplemental briefing addressing whether plaintiffs claims were moot. See
Order on Supplemental Briefing [Dkt. #20]. In response, plaintiff forthrightly conceded
that the purported committee “no longer exists.” Pl.’s Supp. Mem. of Law on Mootness
(“PL.’s Supp. Br.”’) [Dkt. #21] at 1. Accordingly, plaintiff acknowledged that all of its
non-documentary claims are moot. /d.; Defs.’ Supp. Br. at 1. Specifically, Counts I and
II are moot in their entirety because “there is no longer a risk that the Clemency Task
Force will continue to operate or meet while defying the FACA requirements that it file a
charter and that it provide public notice of and access to meetings.” Pl.’s Supp. Br. at 1.
Similarly, Counts IV and V are moot to the extent those Counts are based on the alleged
charter and public notice and access violations. Id.

Plaintiff continues to press its document-related claims, however, arguing that a
claim for document disclosure survives the termination of a FACA advisory committee.
Id. at 2. Defendants, for their part, forthrightly concede that caselaw in this Circuit
supports plaintiff's position. See Defs.’ Supp. Br. at 4-5. As such, defendants urge the
Court to declare all of plaintiff's non-document-related claims moot and address solely

the merits of plaintiff's document-related claims.

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STANDARDS OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

Where a party moves to dismiss under Federal Rule of Civil Procedure 12(b)(1),
the Court must “determine whether it has subject matter jurisdiction in the first instance.”
Taylor v. Clark, 821 F. Supp. 2d 370, 372 (D.D.C. 2011) (quoting Curran v. Holder, 626
F, Supp. 2d 30, 32 (D.D.C. 2009)). Under Rule 12(b)(1), plaintiff bears the burden of
proving by a preponderance of the evidence that the Court has subject-matter jurisdiction.
Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004).
The Court must accept as true all well pleaded factual allegations and draw all reasonable
inferences in plaintiff's favor. Taylor, 821 F. Supp. 2d at 372. But “the Court may give
the plaintiff's factual allegations closer scrutiny” than it would in assessing a motion
under Rule 12(b)(6). Logan v. Dep’t of Veteran Affairs, 357 F. Supp. 2d 149, 153

(D.D.C. 2004).

B. Federal Rule of Civil Procedure 12(b)(6)

In analyzing a motion to dismiss under Rule 12(b)(6), the Court similarly accepts
the factual allegations in the complaint as true and draws all reasonable inferences in
plaintiff's favor. Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27
(D.D.C. 2006). To survive a motion to dismiss under Rule 12(b)(6), a complaint must
“state a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 552 (2007). That is, the complaint must contain sufficient factual allegations that, if

accepted as true, state a claim to relief that “is plausible on its face.” Jd. at 570.
Plaintiff's entitlement to relief must rise above mere speculation. Jd. at 555.

ANALYSIS

A. Mootness

The doctrine of mootness is rooted in the “case” or “controversy” language of
Article II, which limits this Court’s subject-matter jurisdiction. DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 351 (2006). Because “a plaintiff must establish jurisdiction for
each claim,” Triple Up Ltd. v. Youku Tudou Inc., No. 17-7033, 2018 WL 4440459, at *1
(D.C. Cir. July 17, 2018) (per curiam) (citations and quotations omitted), mootness must
be analyzed on a claim-by-claim basis. See Louie v. Dickson, 964 F.3d 50, 54 (D.C. Cir.
2020) (“proceed[ing] claim by claim” because mootness “applies to each form of relief
requested”). If during the course of litigation “‘a claim is resolved such that there is no
longer a ‘live’ dispute between the parties[,] that claim is moot, and the Court cannot
exercise jurisdiction over the claim.” Abbas v. U.S. Dep’t of Homeland Security, Civ.
Action No. 20-cv-03192, 2021 WL 3856625, at *1 (D.D.C. Aug. 29, 2021). A claim will
be rendered moot where events occur “that make[{] it impossible for the court to grant any
effectual relief whatever to a prevailing party.” Church of Scientology v. United States,
506 US. 9, 12 (1992). “[T]he availability of a partial remedy,” however, is sufficient to
prevent a claim from being dismissed as moot. Calderon v. Moore, 518 U.S. 149, 150

(1996).

Here, I agree with the parties’ candid representations regarding mootness. As
plaintiff concedes, all of its non-document-related claims have been rendered moot by the

fact that the alleged “Clemency Task Force no longer exists.” Pl.’s Supp. Br. at 1.

9
Because the purported committee is no longer operating, there is no relief this Court may
provide as to its alleged failure to file a charter or its failure to provide public notice and
access to its meetings. See Church of Scientology, 506 U.S. at 12. Accordingly, I will
dismiss as moot Counts I and II in their entirety and Counts IV and V, to the extent those
Counts are based on alleged violations of FACA’s charter and public access provisions,
see S U.S.C. app. 2 §§ 9(c), 10(a).

I will also dismiss the claims against Jared Kushner in his official capacity as
Director of the White House Office of American Innovation. Mr. Kushner no longer
holds the official position in which he was originally sued. Order on Supp. Br. [Dkt. #20]
at 2. Under the normal operation of Federal Rule of Civil Procedure 25(d), a federal
officer’s successor would be automatically substituted as a defendant, but here it is
undisputed that OAI is no longer active under the Biden Administration. See Defs.’
Supp. Br. at 3 n.2. In such situations, the claims against the official are generally no
longer justiciable. See Laudes Corp. v. United States, 84 Fed. Cl. 298, 314 (2008); see
also Skolnick v. Parsons, 397 F.2d 523, 525-26 (7th Cir. 1968) (holding district court
lacked jurisdiction to consider claim against Presidential Commission and one of its
members where Commission no longer existed and no successors to the Commission’s
members had been appointed).

Plaintiff is correct, however, that its document-related claims are not moot. As
defendants concede, case law in our Circuit supports the position that document-related
claims under 5 U.S.C. app. 2 § 10(b) may survive the termination of an advisory

committee. See Cummock v. Gore, 180 F.3d 282, 292 (D.C. Cir. 1999); Byrd v. EPA, 174

10
F.3d 239, 243-44 (D.C. Cir. 1999); see also Defs.’ Supp. Br. at 4. Such claims remain
remediable through the potential production of documents allegedly withheld, thus
maintaining a live controversy subject to judicial resolution. See Jud. Watch, Inc. v. Nat'l
Energy Pol’y Dev. Grp., 219 F. Supp. 2d 20, 30 (D.D.C. 2002). Accordingly, I still must
resolve defendants’ motion to dismiss with respect to the remaining claims—Count IT] in

its entirety and Counts IV and V to the extent those Counts relate to alleged violations of

5 U.S.C. app. 2 §10(b).

B. Plaintiff's Document Disclosure Claims

Plaintiffs document disclosure claims stem from its allegation that the purported
Clemency Task Force violated FACA’s document production requirement, 5 U.S.C. app.
2 § 10(b). Under that provision, advisory committees subject to the statute must produce
“the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies,
agenda, or other documents which were made available to or prepared for or by” the
committee.’ Plaintiff argues that whether it proceeds under FACA (Count III), the APA
(Count IV), or a mandamus theory (Count V), it is entitled “to enforce FACA” and gain
access to records prepared by or made available to members of the alleged committee.
Pl.’s Opp’n at 5-6; see also Compl. { 91, Prayer for Relief at (E). Defendants counter
that plaintiff (1) fails to state a claim directly under FACA because the statute does not

provide a private right of action, (2) fails to state a claim under the APA because none of

> This document production requirement is subject to the terms of 5 U.S.C. § 552. See 5 U.S.C. app. 2 §
10(b).

11
defendants are agencies subject its provisions, and (3) cannot succeed under a mandamus
theory because plaintiff has not adequately pled the existence of a committee subject to
FACA. See Defs.’ Mot. at 10-31. Unfortunately for plaintiff, I agree with defendants
that plaintiff cannot state a claim under FACA or the APA and has not adequately pled
this Court’s jurisdiction under a mandamus theory. How so?

1. FACA

Plaintiff first seeks relief directly under FACA. In recent years, the majority of
courts in our Circuit have held that FACA lacks a private right of action. See, e.g., Ctr.
jor Biological Diversity v. Tidwell, 239 F. Supp. 3d 213, 220-21 (D.D.C. 2017); see also
Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 32-33 (D.D.C. 2011); Judicial
Watch, Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24, 30 (D.D.C. 2010). As the
Supreme Court has instructed, when analyzing whether a statute provides a private right
of action “[t]he 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). Without the latter, “a cause of action
does not exist and courts may not create one.” Jd.

In examining the statutory text, see 5 U.S.C. app. 2 §§ 1-16, I have little difficulty
joining the consensus in our Circuit and holding that no private right of action exists
under the statute. Simply put, “nothing in the language of FACA evidences any intent to
create [a private] remedy.” Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 219 F.
Supp. 2d 20, 33 (D.D.C. 2002). Without such a remedy, there can be no private right of

action and plaintiff's claim cannot proceed. Sandoval, 532 U\S. at 286.

12
Plaintiff points to a single case going against the weight of authority in this Circuit
and argues that “[iJn the absence of controlling legal authority,” the Court should permit
plaintiff's claim directly under FACA. See Pl.’s Opp’n at 6 (citing Arms Control & Non-
Proliferation v. Lago, Civ. Action No. 05-682, 2006 WL 3328257 (D.D.C. Nov. 15,
2006) (Collyer, J.)). Even in Lago, however, the court recognized that “FACA does not
contain a provision providing a private right of action to enforce its provisions,” and, in
any event, the court in that case dismissed plaintiff's claims on other grounds. Lago,
2006 WL 3328257, at *8. Accordingly, Lago fails to present any justification for
permitting plaintiff's FACA claim to proceed.

2. APA

Next plaintiff relies on the APA. Because the APA only applies to “agencies,” 5
U.S.C. §§ 551 et seq., this requires the Court to assess whether defendants constitute
agencies subject to the statute’s provisions. Under the APA, “agency” is defined, with
certain exceptions not relevant here, as “each authority of the Government of the United
States, whether or not it is within or subject to review by another agency.” Jd. § 551(1).

Plaintiff brings its Complaint against three entities—the Executive Office of the
President, Joseph R. Biden, Jr. in his official capacity as President of the United States,
and Jared Kushner in his official capacity as Director of OAI. Under well settled law, the
President is not an agency under the APA and “his actions are not subject to its
requirements.” Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). Similarly, our
Circuit has rejected the claim that the Executive Office of the President, as such, is an

agency under the APA. United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998)

13
(“[I]t has never been thought that the whole Executive Office of the President could be
considered a discrete agency.”).°

Thus, in order for plaintiff to proceed on its APA claim, the sole remaining
defendant—Jared Kushner in his official capacity as Director of OAI—1must be an
agency subject to the statute. But, as already discussed, the claims against this defendant
are moot.’ Accordingly, without any defendant subject to the statute’s provisions,
plaintiff's APA claims must fail.

3. Mandamus and Venue Act

Lastly, plaintiff invokes this Court’s mandamus jurisdiction. See 28 U.S.C. §
1361 (“The district courts shall have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff.”). Mandamus constitutes “a drastic and
extraordinary remedy reserved for really extraordinary causes.” Dunlap v. Presidential

Advisory Comm’n on Election Integrity, 944 F.3d 945, 949 (D.C. Cir. 2019). Such relief

° Espy held that the Executive Office of the President was not an agency under FOIA. Its holding is
equally applicable to the APA because, as courts in this district have noted, FOIA incorporates and
expands on the APA’s definition of agency. See Elec. Privacy Info. Ctr. v. Nat’l Sec. Comm’n on
Artificial Intelligence, No. 19-cv-02906, 2020 WL 2838568, at *4—5 (D.D.C. June 1, 2020) (“All APA
agencies are FOIA agencies.”). Therefore, if the Executive Office of the President is not an agency for
FOIA purposes, it cannot meet the definition of an agency under the APA.

7 Even in the event the claims against the Director of the Office of American Innovation are not moot,
those claims would still not be cognizable under the APA. It is undisputed here that OAI, when
operational, was situated within the White House Office. Such entities are generally not agencies under
FOIA or the APA. Democracy Forward Found. v. White House Office of Am. Innovation, 356 F. Supp.
3d 61, 66 (D.D.C. 2019) (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,
158 (1980). Moreover, even if this Court were to apply the D.C. Circuit’s test for determining which
subcomponents of the Executive Office of the President constitute agencies subject to the APA, see
Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), OAI would still fall short because it fails to wield
sufficient authority independently of the President to constitute an agency. See Democracy Forward
Found., 356 F. Supp. 3d at 66-73. For these independent reasons, plaintiff cannot proceed on its APA
claims.

14
is “hardly ever granted” and the Court’s jurisdiction to provide such relief is “strictly
confined.” Jn re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc). To succeed,
plaintiff must show “(1) a clear and indisputable right to relief, (2) that the government
agency or official is violating a clear duty to act, and (3) that no adequate remedy exists.”
Dunlap, 944 F.3d at 949. The party seeking the issuance of the writ bears the burden of
establishing that its right to relief-is clear and indisputable. Power v. Barnhart, 292 F.3d
781, 784 (D.C. Cir. 2002).

Plaintiff here fails to carry this burden as it has not adequately pled the existence
of an advisory committee subject to FACA. The Complaint has three central
deficiencies: it fails to plausibly allege the committee provided collective
recommendations, fails to allege the existence of non-federal employee members with a
vote or veto over committee recommendations, and fails to plausibly allege the
committee possessed the requisite form and structure. Taken together, these
shortcomings preclude plaintiff from establishing a clear and indisputable right to relief.

i. Collective Advice

A group is only an advisory committee subject to FACA where it renders “advice
or recommendations, as a group, and not as a collection of individuals.” AAPS, 997 F.
2d at 913. In an attempt to satisfy this requirement, plaintiff alleges on “information and
belief. . . [that] the Clemency Task Force provided collective advice and
recommendations.” Compl. 64; id. {83 (alleging the Clemency Task Force prepared
“group recommendations to submit to the President”). Plaintiff's only support for this

characterization is a White House press release, which it argues “reveals that . . . the

15
members of the Clemency Task Force have worked together to advise the president.”
Compl. {| 68-69 (emphasis added).

This press release, however, undermines, rather than promotes, the plausibility of
plaintiff's claims. See Press Release, The White House, Statement from the Press
Secretary Regarding Executive Grants of Clemency, Feb. 18, 2020,
https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-
regarding-executive-grants-clemency-2/. The release does not mention any clemency
group working on or recommending any of the pardons at issue. Jd. Instead, it deals
almost entirely in individuals, listing notably varied and dissimilar sets of individuals as
supporting each act of clemency. Jd. These seemingly ad hoc recommendations
undermine plaintiff's argument that the Clemency Task Force worked as a group to
provide collective advice. See Freedom Watch, Inc. v. Obama, 930 F. Supp. 2d 98, 102
(D.D.C. 2013) (an “alleged committee does not fall within the scope of FACA” where
“individuals attending . .. meetings varied significantly”).

While some of the alleged Clemency Task Force members are listed in the press
release, few are listed as supporting the same act of clemency, and none of the announced
actions draw the support of all, or even most, of the alleged members of the Task Force.
Id. In fact, several of the alleged committee members, including the purported
committee’s leader, Jared Kushner, are omitted from the press release entirely. Jd. This
is hardly the recognition one would expect from a White House that was purportedly
accepting the collective advice of a formally organized group.

Far from supporting plaintiff's allegations, the press release shows the opposite to

16
be true—that each act of clemency was supported by dissimilar ad hoc groups of
unassociated individuals—the precise groups over which FACA does not apply. AAPS,
997 F.2d at 915 (FACA not implicated by an “unstructured arrangement in which the
government seeks advice from what is only a collection of individuals who do not
significantly interact with each other); Citizens for Responsibility and Ethics in
Washington v. Leavitt, 377 F. Supp. 2d 427, 431-33 (D.D.C. 2008) (holding no FACA
committee existed where meeting attendees providing individual, as opposed to
collective, advice). Accordingly, plaintiffs allegations fail to plausibly implicate FACA.
Twombly, 550 U.S. at 555 (“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable”).

Our Circuit Court’s decision in VoteVets does not dictate a different result. Unlike
the Presidential announcement in that case, which specifically referenced the creation of
a committee and named specific members, including its leader, VoteVets, 992 F.3d at
1104, the press release plaintiff relies on is silent with respect to any purported committee
or group. Moreover, in VoteVets, the complaint alleged that the purported committee
members referred to themselves as a “group” and a “team,” and that this viewpoint was
shared by those in the federal agency with which the purported committee worked. Jd.
Plaintiffs there also detailed how members of the committee worked together to consult
with each other, kept each other apprised of events that others missed, and offered their
recommendations jointly, id. at 1105—detailed allegations indicating collaboration and

the provision of collective advice that are conspicuously absent here.

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ii. Membership

The Complaint is equally deficient for failing to adequately allege committee
membership. Under FACA, committees comprised entirely of federal employees are
exempt from the statute’s requirements. 5 U.S.C. app. 2 § 3(2). For a non-federal
employee to be a member of a committee, that individual must possess a “vote or veto in
committee recommendations or decisions.” Food & Water Watch v. Trump, 357 F. Supp.
3d 1, 12 (D.D.C. 2018) (quoting Jn re Cheney, 406 F.3d at 728). Mere “participation in
committee meetings,” even if it is “influential participation,” is not enough to transform a
private attendee into a “member.” Jn re Cheney, 406 F.3d at 728. As our Circuit Court
has held, the “severe separation-of-powers problems” that result from applying FACA to
committees advising the Executive Office of the President mandate this strict
interpretation. Jn re Cheney, 406 F.3d at 728 (“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.”’).

Plaintiff alleges that certain individuals from outside the government were
members of the Clemency Task Force, Compl. | 39-59, but makes no supporting factual
allegations with respect to the nature of the alleged membership, including if and how
members engaged with the committee and whether they possessed a vote or veto over
committee recommendations. See generally Compl. Without some indication that such a
structure exists within the group, plaintiffs have failed to plausibly allege a committee
subject to FACA and the Court must dismiss the action. Food & Water Watch, 357 F.

Supp. 3d at 12; see also In re Cheney, 406 F.3d at 728.

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iii, Form and Structure

Finally, plaintiff fails to allege a sufficient form and structure. FACA does not
apply to “every formal and informal consultation between the President or an Executive
agency and a group rendering advice.” Pub. Citizen, 491 U.S. at 453. Instead, FACA is
only implicated where a purported committee has “in large measure, an organized
structure, a fixed membership, and a specific purpose.” AAPS, 997 F.2d at 914 (rejecting
a reading of the statute that would apply FACA to “every instance when the President (or
an agency) informally seeks advice from two or more private citizens”). Because form is
critical, “the government has a good deal of control over whether a group constitutes a
FACA advisory committee” and “‘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.” Jd.

Plaintiff's allegations regarding the Clemency Task Force’s form and structure are
threadbare, to say the least. The Complaint states only that the group was formed in
2019, met on an indeterminate number of occasions, reviewed applications for clemency,
and provided recommendations regarding particular pardon applications and the
clemency process generally to either the President or Jared Kushner, the group’s alleged
leader. See Compl. §{ 39-64, 81. Even taken as true, these generalized assertions fail to
plausibly allege a committee subject to FACA. See Citizens for Responsibility and Ethics
in Washington, 577 F. Supp. 2d at 432 (FACA not implicated where group had no formal
structure, there was no clear overlap in attendance between meetings, and no
collaborative work product was created).

Nor does plaintiff offer supporting details regarding the committee’s operations,

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structure, membership and attendance, or other characteristics from which the Court
could draw reasonable inferences in its favor. See Twombly, 550 U.S. at 555 (holding a
complaint must contain “more than labels and conclusions” and that “a formulaic
recitation of the elements of a cause of action will not do”). Instead, plaintiff relies on
the fact that public reporting—namely the Washington Post article—allegedly supports
its theory. Compl. 58; Pl.’s Opp’n at 21-22 n.6 (asserting that the article “discloses a
structured process for submission of clemency applications in connection with the Task
Force”).

Unfortunately for plaintiff, this too falls short. Far from supporting the allegations
in the Complaint, the article describes the alleged Clemency Task Force as an “informal
network of advocates providing clemency recommendations” to the President. Ex. 2 to
Defs.’ Mot. (emphasis added). The article generally asserts that the group held meetings,
but it offers no details on how the supposed committee functioned and ultimately
concludes that it is “not clear how the people in Trump’s informal network will select
people to recommend for clemency” going forward. Jd. Not exactly an example of old-
fashioned reporting!

To say the least, such allegations do not make out an advisory committee subject
to FACA, and the Complaint’s refashioning of the article into a legal document does not
alter that conclusion. To hold otherwise would permit almost any reporting of the
President seeking advice from private individuals to serve as the basis for seeking
discovery from the Executive Branch. Such an interpretation of FACA would not only

raise serious separation-of-powers concerns, see in re Cheney, 406 F.3d at 727, but has

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already been squarely rejected by our Circuit Court. AAPS, 997 F.2d at 915.
CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss is GRANTED and the
action is DISMISSED in its entirety. An Order consistent with this decision accompanies

this Memorandum Opinion. “

RICHARD J. LEOQ_)
United States District Judge

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