Am. First Legal Found. v. Cardona
| Decision Date | 22 September 2022 |
| Docket Number | 1:22-cv-1947-RCL |
| Parties | AMERICA FIRST LEGAL FOUNDATION, et al., Plaintiffs, v. MIGUEL CARDONA, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This case concerns the decision of the United States Department of Education (“the Department”) to create a group known as the National Parents and Families Engagement Council (“the Council”) earlier this year. Plaintiffs America First Legal Foundation, Fight for Schools and Families, and Parents Defending Education argue that that decision violated the Federal Advisory Committee Act (“FACA”), which sets out certain substantive and procedural requirements for the creation of advisory committees by the Executive Branch and the way those committees conduct their meetings. Defendants Secretary of Education Miguel Cardona (“the Secretary”), the Department, and the Council argue that FACA does not apply because the Council is not an “advisory committee” within the meaning of that statute.
Before the Court are the parties' cross-motions for summary judgment, ECF Nos. 20 and 22, and defendants' motion to strike plaintiffs' statement of undisputed material facts, ECF No. 23. For the following reasons, plaintiffs' motion will be DENIED, defendants' motion will be GRANTED insofar as plaintiff America First Legal Foundation lacks standing to challenge the Council's ideological balance and DENIED in all other respects, and the case will proceed to discovery.
Plaintiffs are three nonprofit groups. Plaintiff America First Legal Foundation “promotes government transparency and accountability by gathering official government information analyzing it, and disseminating it to the public through reports, press releases, media platforms including social media, and by posting government records on its website for use by the public, scholars, and others.” Compl. ¶ 13, ECF No. 1. “Plaintiff Fight for Schools and Families is a nonpartisan political action committee focused on electing common-sense candidates that commit to policies that support equal opportunity, tolerance, meritocracy, and achievement.” Id. ¶ 14. Id. ¶ 15. Plaintiffs Fight for Schools and Families and Parents Defending Education both profess to have “fundamentally different viewpoint[s] than the Council's current members.” Id. ¶¶ 50, 60.
The following factual background on the Council's inception is drawn from the Administrative Record (“AR”) in the case, which, as explained below, is quite sparse.
In March 2022, the Department sent an email to various nonprofits sharing a “draft outline for the development of a National Parents and Families Engagement Council as an opportunity for the Department to listen, learn and engage families.” AR 1. The email also sought to gauge the organizations' interest in joining the Council, as well as the organizations' input on the following matters:
Id. Several organizations provided the requested feedback. For example, the United Parent Leaders Action Network proposed that the Council should “advise on the full array of policies and programs under [the Department's] jurisdiction and . . . provide specific recommendations regarding proposed legislation, program guidance and implementation, grants and funding opportunities, and budgets.” AR 37. Importantly, however, the Administrative Record is devoid of announcement from the Department detailing the way the Council would function or the types of recommendations, if any, it would offer.
In early June 2022, the Department sent a further email to organizations with an attached document setting out standards for participating organizations, obligations of Council members, and guidelines for selecting “parent/family member/caregiver representative[s]” to join the Council. AR 48. That document stated that “[e]ach participating organization should:
Id. On June 13, 2022, the Department sent organizations another email, announcing that the Council would “launch” the next day, re-attaching the standards document, communicating signup deadlines, and stating that “the National Parents and Families Engagement Council is not a Federal Advisory Committee and therefore, does not have access to information and advice on a broad range of issues affecting federal policies and programs.” AR 60-61 (emphasis in original).
On June 14, 2022, the Department issued a press release announcing the launch of the Council. AR 64-65. The press release stated that the Council would “facilitate strong and effective relationships between schools and parents, families and caregivers,” and that “[f]amilies' voices play a critical role in how the nation's children are recovering from the pandemic.” AR 64. It quoted the Secretary as stating that “[t]he Council will help foster a collaborative environment where we can work together to serve the best interest of students and ensure they have the academic and mental health support they need to recover from the pandemic and thrive in the future.” Id. The press release also described the Council as “a channel for parents and families to constructively participate in their children's education by helping them understand the rights they have, create a feedback loop with schools to shape how American Rescue Plan (ARP) funds are deployed to meet students' needs, and identify summer learning and enrichment opportunities for children in their communities.” Id. The press release listed fourteen organizations that would be members of the Council: the Council of Parent Attorneys and Advocates, Fathers Incorporated, Generations United, Girls Inc., the League of United Latin American Citizens, Mocha Moms, the National Association for Family, School, and Community Engagement, the National Action Network, the National Military Family Association, the National Parent Teacher Association, the National Parents Union, the National Center for Parent Leadership, Advocacy, and Community Empowerment, the United Parent Leaders Action Network, and UnidosUS. Id. In the weeks following the press release, the Department added two more organizations to the Council: the National Association for the Advancement of Colored People and Jack and Jill of America. AR 83, 86. The Council's creation was never announced in the Federal Register.
The above factual background is virtually all that the Administrative Record provides. A few representations that defendants have made outside of the Administrative Record, however, bear mentioning. The first of those representations came in a July 28, 2022 declaration by Hayley Meadvin, a Senior Advisor at the Department who “was directly involved in the creation of the National Parents and Families Engagement Council.” Decl. of Hayley Meadvin (“Meadvin Decl.”) ¶¶ 1-2, Ex. A to Defs.' Opp'n Pl.'s Mot. for P.I., ECF No. 9-1. According to Meadvin, as of July 28, “[t]he department has not convened any meetings of the Council, and there is currently no set schedule of planned meetings.” Id. ¶ 11.[1] Furthermore, Meadvin states that “[t]he Department has not authorized the Council to make recommendations of any form and does not intend to solicit consensus advice or recommendations from the Council,” and that “the Department has not created or approved, nor does it intend to create or approve, any process through which the members of the Council should arrive at or vote on consensus advice or recommendations.” Id. ¶ 13. Finally, defendants represented at an August 10, 2022 hearing on plaintiffs' motion for a preliminary injunction that “the first meeting of the [C]ouncil will not take place until at least mid to late September.” Tr. of Aug. 10, 2022 Hg. ( ) at 29:9-10, Ex. A to Defs.' Cross-Mot. for S.J., ECF No. 22-2. Defendants have given no indication that they intend to open the Council's meetings to the public. As of the time of this Memorandum Opinion, the Court has not received any further updates on plans for the Council's first meeting.
Plaintiffs filed the present lawsuit on July 6, 2022, shortly after the Council's announcement. The complaint asserted a claim against the Secretary and the Department under the Administrative Procedure Act (“APA”) (Count I) claims against the Council under the Mandamus Act (Counts II-VII), and a claim seeking a declaratory judgment against all defendants under the Declaratory Judgment Act (Count VIII), all for violations of FAC A. See Compl. ¶¶ 66-131. Specifically, plaintiffs allege that the Council violates FACA's informational, open-records, and procedural requirements for meetings, and that it is comprised exclusively of organizations who generally support the Biden Administration's policies, in violation of FACA's...
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