Judicial Watch, Inc. v. U.S. Dept. of Commerce

• Decision Date: 07 September 2010
• Docket Number: Civil Action No.: 07-1446 (RMU)
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

736 F.Supp.2d 24

JUDICIAL WATCH, INC., Plaintiff,

v.UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

Civil Action No.: 07-1446 (RMU).

United States District Court,

District of Columbia.

Sept. 7, 2010.

James F. Peterson, Meredith Leigh Di Liberto, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

James C. Luh, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Granting the Defendants' Renewed Motion to Dismiss

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter is before the court on the defendants' renewed motion to dismiss. The plaintiff, Judicial Watch, Inc. ("Judicial Watch") seeks declaratory and injunctive relief against the U.S. Department of Commerce ("DOC") and DOC Secretary Gary Locke ¹ (collectively, the "defendants") based on their alleged noncompliance with the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. 2. Because the plaintiff has failed to plead a facially plausible claim for which relief can be granted, the court grants the defendants' motion to dismiss.

II. BACKGROUND ²

A. The North American Competitiveness Council

In March 2005, leaders from the United States, Canada and Mexico held a summit during which the three nations created the Security and Prosperity Partnership of North America ("SPP") to address matters of mutual concern, such as trade, energy and environmental issues. Compl. ¶ 9. In March 2006, former DOC Secretary Gutierrez and his counterparts from Canada and Mexico met with senior business leaders from the three countries to identify priorities for the SPP and to solicit policy recommendations for improving North American economic competitiveness. Id. ¶ 10.

During this meeting, the participants also discussed the creation of the North American Competitiveness Council and its U.S. component subgroups (collectively, the "NACC"). Id. Subsequently, Secretary Gutierrez and his counterparts agreed upon a framework for the NACC, which would provide policy recommendations to the three governments for subsequent action through the SPP. Id. ¶ 11. This framework envisioned the NACC functioning as a conduit between the defendants, their Canadian and Mexican counterparts and the North American business community. Id.

The proposed structure of the NACC was again discussed during a later meeting held in March 2006, between officials from each government and private sector representatives. Id. ¶ 12. Following this meeting, DOC officials met with the Council of the Americas and the U.S. Chamber of Commerce to "formalize the NACC by facilitating interaction between representatives from the three governments and the private sector." Id. ¶ 13. Secretary Gutierrez met with his Canadian and Mexican counterparts in June 2006 to officially launch the NACC. Id. ¶ 14.

The NACC is composed of thirty-five members of the North American business community. Id. ¶ 15. Canada and Mexico each hold ten NACC seats reserved for representatives from their respective countries, while the United States holds fifteen seats. Id. ¶¶ 17-18. Each country separately determines the selection process for appointing its representatives to the NACC and designates organizations to serve as "Secretariats." Id. ¶¶ 15, 20. For the U.S. delegation, the DOC selected two "business groups," the Council of the Americas and the U.S. Chamber of Commerce to serve jointly as the U.S. NACC Secretariat. Id. ¶ 20. The U.S. NACC Secretariat in turn selects the business organizations that hold seats on the NACC. Pl.'s Opp'n to Defs.' Renewed Mot. to Dismiss ("Pl.'s Opp'n") at 16.

The U.S. component of the NACC consists of an Executive Committee and an Advisory Committee. Compl. ¶ 22. The Executive Committee is comprised of the fifteen U.S. representatives to the NACC, each of which is a large corporation. Id. The Advisory Committee consists of over 200 businesses, associations and chambers of commerce that provide advice and policy recommendations to the Executive Committee. Id. ¶ 23. The NACC meets with the defendants and their Canadian and Mexican counterparts multiple times each year to propose and discuss policy recommendationson issues such as facilitating border-crossing, regulatory cooperation and energy integration. Id. ¶¶ 21, 26.

B. Statutory Framework

The FACA's purpose is "to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures" that result only in "worthless committee meetings and biased proposals." Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 453, 459, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). Congress intended the FACA to "ensure that new advisory committees be established only when essential[;] ... that their creation, operation, and duration be subject to uniform standards and procedures; that ... the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature." Id. at 446, 109 S.Ct. 2558. The FACA places obligations on the conduct of advisory committees falling within its ambit. Id. at 446-47, 109 S.Ct. 2558. For example, the FACA requires, inter alia, that advisory committees file a charter, keep minutes of their meetings and file public notices of their meetings. 5 U.S.C. app. 2 §§ 9(c), 10(a)(2), 10(c). Advisory committees subject to FACA must also open their meetings to the public and make their minutes, records and reports publicly available, subject only to certain narrow statutory exceptions not relevant here. Id. § 10(a)(3), 10(b), 10(d).

The central dispute between the parties in this case is whether the NACC is an advisory committee subject to the FACA, as defined by the statute and case law. Defs.' Mot. at 9-15; Pl.'s Opp'n at 11-18. The FACA defines advisory committees, in pertinent part, as "any committee ... established or utilized by one or more [U.S. government] agencies." 5 U.S.C. app. 2 § 3(2). The plaintiff asserts that the DOC established and continues to utilize the NACC, subjecting the NACC to FACA regulations. Compl. ¶¶ 35-47.

C. Factual & Procedural History

The plaintiff is a non-profit public interest corporation that monitors the actions of government entities and officials at the federal, state and local levels. Compl. ¶ 1. The plaintiff's mission is to promote governmental integrity, transparency, accountability and fidelity to the rule of law. Id. To that end, the plaintiff has been investigating the NACC since July 2006. Id. ¶ 28. The alleged relationship between the NACC and the DOC underlies the plaintiff's claims of FACA violations. Id. ¶¶ 35-47.

The plaintiff began seeking information about the NACC in July 2006 by submitting Freedom of Information Act requests to various federal agencies, including the DOC. Id. ¶ 28. Through these requests, the plaintiff sought access to records related to the NACC's creation, activities and meetings. Id. The plaintiff also requested permission from the U.S. NACC Secretariat to participate in all future NACC meetings, but in April 2007, the U.S. Chamber of Commerce denied this request. Id. ¶¶ 29-30. The plaintiff then sent a letter to the defendants in July 2007 asking them to acknowledge that the FACA applies to the NACC, and that, as a result, public access should be provided to all NACC meetings and records. Id. ¶ 31. The defendants had not replied to this letter by August 10, 2007, when the plaintiff commenced this suit seeking declaratory and injunctive relief related to the defendants' alleged violations of the FACA. Id. ¶ 32.

This court granted the defendants' initial motion to dismiss on September 19, 2008, holding that the plaintiff had not demonstrated standing. Mem. Op., 576 F.Supp.2d 172 (D.D.C.2008). On appeal, the Circuit reversed and remanded, holding that, for the purposes of deciding a motion to dismiss, the plaintiff had madesufficient factual allegations to assert standing. Judicial Watch, Inc. v. U.S. Dep't of Commerce, 583 F.3d 871, 873-74 (D.C.Cir.2009). Upon remand, the defendants filed this renewed motion to dismiss, which is now fully briefed. See generally Defs.' Renewed Mot. to Dismiss ("Defs.' Mot.").

III. ANALYSIS

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

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citing Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48, 78 S.Ct. 99 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted).

Yet, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, 78 S.Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [ ] would entitle him to...