United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2009 Decided October 9, 2009
No. 08-5490
JUDICIAL WATCH, INC.,
APPELLANT
v.
U.S. DEPARTMENT OF COMMERCE ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 07cv01446)
James F. Peterson argued the cause for appellant. With
him on the brief was Paul J. Orfanedes.
Abby C. Wright, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Tony West, Assistant Attorney General, Jeffrey A. Taylor,
United States Attorney, and Mark B. Stern, Attorney, U.S.
Department of Justice.
Before: HENDERSON, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Judicial Watch, Inc., a
non-profit government watchdog organization, sued the
Department of Commerce and its Secretary over alleged
violations of the Federal Advisory Committee Act (“FACA”),
5 U.S.C.App. § 1 et seq. The complaint asserted that the
defendants had, in collaboration with counterparts from the
Canadian and Mexican governments, established an
organization called the North American Competitiveness
Council to provide the United States and its neighbors with
policy advice on certain economic matters. The parties agree
that the Council consists of private-sector business leaders
from the three countries, that it includes at least one sub-group
made up exclusively of U.S.-based delegates, and that the
Department of Commerce has “met with the [Council] and the
U.S. component periodically.” Appellees’ Br. 6-7;
Appellant’s Br. 7-9. Judicial Watch argues that the Council
and its constitutive entities are “advisory committees” within
the meaning of FACA, 5 U.S.C.App. § 3(2). By way of relief,
it sought a declaration that defendants had breached a number
of FACA’s requirements concerning past meetings of the
Council; injunctions curing some of those violations and
ensuring full FACA compliance for future meetings; and a
writ of mandamus compelling similar conduct. Compl. ¶¶ A-
E.
Commerce moved to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), arguing that Judicial Watch
lacked standing and had failed to state a claim. The district
court found a want of standing, accepting the government’s
argument that, because the Department didn’t control the
Council, Judicial Watch’s injuries were neither caused by
Commerce nor redressable in a suit solely against Commerce
and the Secretary. Judicial Watch, Inc. v. U.S. Dep’t of
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Commerce, 576 F.Supp. 2d 172, 178 (D.D.C. 2008). Judicial
Watch appealed; we reverse and remand.
* * *
To satisfy the constitutional standing requirement,
familiar doctrine requires a plaintiff to allege an injury in fact
that is fairly traceable to the challenged conduct and that will
likely be redressed by a favorable decision on the merits.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
When the district court has resolved no factual disputes in a
case, we review a dismissal for lack of standing de novo.
Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C.
Cir. 2008).
Here the injury requirement is obviously met. In the
context of a FACA claim, an agency’s refusal to disclose
information that the act requires be revealed constitutes a
sufficient injury. Public Citizen v. U.S. Dep’t of Justice, 491
U.S. 440, 449-50 (1989); Byrd v. U.S. Environmental
Protection Agency, 174 F.3d 239, 243 (D.C. Cir. 1999). The
principal dispute, then, concerns causation and redressability,
with Commerce relying, as it successfully did before the
district court, on its lack of control over the Council and its
U.S. component sub-groups. Appellees’ Br. 17.
Given the duties FACA prescribes for government
agencies, Commerce’s lack of control over others is of no
consequence. We assume, as we must at the pleading stage,
that for purposes of standing the Council and its assorted sub-
groups are, as alleged, “advisory committees” within the
meaning of FACA § 3(2). See Warth v. Seldin, 422 U.S. 490,
501 (1975); Muir, 529 F.3d at 1105. If that proves correct,
Commerce is subject to an array of FACA obligations
concerning the Council and its sub-groups that are entirely
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within its power to discharge. Cf. Public Citizen, 491 U.S. at
450-51 (finding standing requirements satisfied in a FACA
case concerning an alleged advisory committee, the American
Bar Association, wholly free of the relevant cabinet
department’s control). These include Commerce’s duty under
5 U.S.C.App. § 10(b) to make available for public inspection
transcripts or minutes of meetings of the Council or its U.S.
sub-groups. Commerce attended some of these in the past,
Appellees’ Br. 7, and could therefore itself generate minutes if
the Council refused to cooperate or if extant minutes were
incomplete. Looking to the future, the court could order that
Commerce conduct any prospective encounters between itself
and the Council—including those alleged to take place “two
to three times per year,” Compl. ¶ 21—in compliance with
FACA’s requirements.
At argument, government counsel suggested, for the first
time, that Judicial Watch’s requests for records under § 10(b)
were effectively moot because Commerce had responded to
certain of Judicial Watch’s requests under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Recording of Oral
Argument, 16:58-18:15 (Sept. 21, 2009). Even granting the
factual predicate, the legal conclusion does not follow. The
scope of FOIA’s document disclosure requirements is in a
number of respects narrower than FACA’s analogous
requirements. FOIA, for example, applies only to existing
records, Students Against Genocide v. Dep’t of State, 257 F.3d
828, 837 (D.C. Cir. 2001), and exempts materials manifesting
an agency’s deliberative processes, 5 U.S.C. § 552(b)(5);
Public Citizen, Inc. v. Dep’t of Justice, 111 F.3d 168, 170
(D.C. Cir. 1997), while FACA is not so limited, see, e.g., 5
U.S.C.App. § 10(c) (requiring the creation of minutes for
advisory committee meetings).
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As Judicial Watch has standing to pursue its FACA
claim, and the merits remain an open question, the judgment
of the district court is reversed and the case is
Remanded.