                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
FREEDOM WATCH, INC.,          )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 09-2398 (RWR)
                              )
BARACK OBAMA et al.,          )
                              )
          Defendants.         )
______________________________)


                  MEMORANDUM OPINION AND ORDER

     Plaintiff Freedom Watch brings this action against the

President of the United States, an entity styled in the complaint

as the Obama Health Reform De Facto Advisory Committee, and the

unknown non-federal employee members of the committee, alleging

that the committee was subject to and failed to comply with the

requirements of the Federal Advisory Committee Act (“FACA”),

codified at 5 U.S.C. app. 2.   The defendants have moved to

dismiss the complaint for lack of subject-matter jurisdiction and

for failure to state a claim upon which relief can be granted.1

Although the FACA does not provide a private right of action to

enforce its provisions, and Freedom Watch cannot proceed under

the Administrative Procedure Act (“APA”), Freedom Watch has

alleged sufficiently that the committee at issue qualifies under



     1
       The defendants’ motion to dismiss Freedom Watch’s Freedom
of Information Act claim previously was granted as conceded.
                                - 2 -

the FACA as an advisory committee and may be entitled to mandamus

relief.   The defendants’ motion to dismiss therefore will be

granted with respect to the Freedom Watch’s FACA and APA claims

and denied with respect to Freedom Watch’s claim for mandamus

review against the President.

                            BACKGROUND

     Freedom Watch alleges that the President established a

committee to gather information and negotiate agreements in

support of proposed health reform legislation enacted in 2010 as

the Patient Protection and Affordable Care Act, Pub. L. 111-148,

and the Health Care and Education Reconciliation Act of 2010,

Pub. L. 111-152 (“ACA” collectively).    (Compl. ¶ 7.)   Freedom

Watch seeks access to the minutes and decisions of the committee

and a listing of all individuals who attended or participated in

any committee meetings.   Additionally, Freedom Watch seeks

advance notice of, and the ability to participate in, any future

meetings and the appointment of “at least one person with a

different point of view” to the committee.2   (Id. ¶¶ 10, 13-


     2
       If the committee has stopped meeting in the wake of
Congress passing and the President signing the ACA, Freedom
Watch’s claims for access to meetings and a change in the
composition of the committee may be moot. See United States v.
Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009)
(noting that a case becomes moot if it is “‘impossible for the
court to grant any effectual relief whatever to the prevailing
party’” because “‘there is no reasonable expectation that the
wrong will be repeated’” (quoting City of Erie v. Pap’s A.M., 529
U.S. 277, 287 (2000))). The parties will be ordered to brief the
issue of whether the alleged committee has ceased all meetings
                                - 3 -

14.)   The defendants have moved to dismiss under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction

and under Rule 12(b)(6) for failure to state a claim, arguing

that the FACA does not provide a private right of action, and

arguing under Rule 12(b)(6) that the committee is not an advisory

committee as defined by the FACA.   (Defs.’ Mem. of Law in Supp.

of Defs.’ Mot. to Dismiss Count I of the Compl. (“Defs.’ Mem.”)

at 3, 4 n.2, 7.)   The defendants also argue that applying the

FACA here would unconstitutionally burden the President’s ability

to communicate confidentially with his advisors.     (Id. at 11-12.)

                             DISCUSSION

       “On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

burden of establishing that the court has subject-matter

jurisdiction.”   Larsen v. U.S. Navy, 486 F. Supp. 2d 11, 18

(D.D.C. 2007); see also Moms Against Mercury v. FDA, 483 F.3d

824, 828 (D.C. Cir. 2007).   “A Rule 12(b)(6) motion tests the

legal sufficiency of a complaint[.]”      Browning v. Clinton, 292

F.3d 235, 242 (D.C. Cir. 2002).   In considering a motion to

dismiss for failure to state a claim under Rule 12(b)(6), a court



relating to the ACA and Freedom Watch’s claims are moot.
See Ctr. for Arms Control and Non-Proliferation v. Redd, Civil
Action No. 05-682 (RMC), 2005 WL 3447891, at *5 (D.D.C. Dec. 15,
2005) (finding claim under the FACA moot where the commission
from which the plaintiff sought records no longer existed and did
not maintain control over the records sought).
                               - 4 -

must construe the complaint in the light most favorable to the

plaintiff, id., and “the court must assume the truth of all well-

pleaded allegations.”   Warren v. Dist. of Columbia, 353 F.3d 36,

39 (D.C. Cir. 2004).

I.   PRIVATE RIGHT OF ACTION

     The mere “fact that a federal statute has been violated and

some person harmed does not automatically give rise to a private

cause of action in favor of that person.”    Cannon v. Univ. of

Chi., 441 U.S. 677, 688 (1979).     Rather, “private rights of

action to enforce federal law must be created by Congress.”

Alexander v. Sandoval, 532 U.S. 275, 286 (2001).     For a cause of

action to exist, a plaintiff must demonstrate that the statute

under which it is attempting to proceed reflects Congressional

intent to create a private remedy.     See id.   It is irrelevant

that a private right of action may be desirable as a policy

matter or compatible with the statute.    See id. at 287.    The

“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.”    Id. at 286.    Judicial

creation of a private right of action conflicts with “‘the

authority of Congress under Art. III to set the limits of federal

jurisdiction.’”   Stoneridge Inv. Partners, LLC v. Scientific-

Atlanta, Inc., 552 U.S. 148, 165 (2008) (quoting Cannon, 441 U.S.

at 747 (Powell, J., dissenting)).
                                 - 5 -

     In the wake of Sandoval, several courts in this district

have determined that the FACA does not create a private right of

action because there is no evidence of Congressional intent to

confer a private remedy for FACA violations.    See Judicial Watch,

Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24, 30 (D.D.C.

2010) (“Because the FACA does not explicitly confer a private

remedy, . . . and because this fact alone is ‘determinative,’ the

court holds that the FACA does not provide the plaintiff with a

private right of action.” (internal citation omitted)); Judicial

Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20,

33 (D.D.C. 2002) (stating that “[n]othing in the language of FACA

evidences any intent” to create a private remedy).    Freedom Watch

has pointed to no authority that could provide a basis for

concluding that Congress did, in fact, intend to confer in the

FACA a private right of action.    Accordingly, Freedom Watch

cannot proceed here under the FACA alone.3

     Freedom Watch argues that it is alternatively “entitled to

enforce FACA’s substantive requirements through the judicial

review provisions of the APA.”    (Pl.’s Opp’n to Defs.’ Mot. to

Dismiss Count One of Pl.’s Compl. at 3.)     Plaintiffs alleging

violations of the FACA may proceed under the jurisdictional grant



     3
       Whether the question addresses the power of the court to
adjudicate a private action brought under the FACA, or the
availability of any relief under the FACA for such a claim, the
result is the same.
                               - 6 -

in the APA, 5 U.S.C. § 704, which subjects “final agency action

for which there is no other adequate remedy” to judicial review.

See Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 736 F. Supp.

2d at 30-31 (surveying other cases and noting that “a number of

courts have allowed plaintiffs to proceed with APA actions based

on alleged FACA violations”); Nat’l Energy Policy Dev. Grp., 219

F. Supp. 2d at 36-40.   The APA provides “a limited cause of

action for parties adversely affected by agency action.”4

Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006).

     An entity cannot be at once both an advisory committee and

an agency, however.   See Heartwood, Inc. v. U.S. Forrest Serv.,

431 F. Supp. 2d 28, 36 (D.D.C. 2006) (noting that an “‘advisory

committee cannot have a double identity as an agency’” (internal

quotation marks omitted) (quoting Wolfe v. Weinberger, 403 F.

Supp. 238, 242 (D.D.C. 1975))); Gates v. Schlesinger, 366 F.

Supp. 797, 798-99 (D.D.C. 1973) (“The [FACA] utilizes the

definition of agency contained in the [APA] . . . .   It is



     4
       However, that does not sanction proceeding here under the
APA against the President. While the APA’s definition of agency
does not explicitly exclude the President, 5 U.S.C. § 701(b)(1),
in the face of such “textual silence[,]” “respect for the
separation of powers and the unique constitutional position of
the President” warrants exempting the President from the
provisions of the APA. Franklin v. Massachusetts, 505 U.S. 788,
800 (1992); see also Natural Res. Def. Council, Inc. v. U.S.
Dep’t of State, 658 F. Supp. 2d 105, 109 (D.D.C. 2009) (“Because
the President is not an ‘agency’ for purposes of the APA,
presidential action is not subject to judicial review under that
statute.”).
                                 - 7 -

significant that the [FACA] contains a separate and distinct

definition of an ‘advisory committee,’ thus supporting the

proposition that an advisory committee is not an ‘agency.’”

(footnote omitted)).   Because Freedom Watch argues that the

committee at issue is an advisory committee subject to the

requirements of the FACA, the committee cannot also qualify as an

agency for the purposes of APA review.     Thus, the APA does not

provide a jurisdictional grant for Freedom Watch’s FACA claim

against the committee or its members, and the defendants’ motion

to dismiss will be granted with respect to Freedom Watch’s APA

claim.

     However, Freedom Watch also seeks in its complaint mandamus

relief under 28 U.S.C. § 1361.    This provision creates subject-

matter jurisdiction over an action “to compel an officer or

employee of the United States or any agency thereof to perform a

duty owed to the plaintiff.”   28 U.S.C. § 1361.    “[T]he mandamus

statute may provide an avenue to remedy violations of statutory

duties even when the statute that creates the duty does not

contain a private cause of action.”      Nat’l Energy Policy Dev.

Grp., 219 F. Supp. 2d at 41-42 (citing Chamber of Commerce v.

Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (if “a plaintiff is

unable to bring his case predicated on either a specific or a

general statutory review provision, he may still be able to

institute a non-statutory review action”)).     If a federal
                                - 8 -

official –– including the President –– has a clear obligation to

perform a duty, Nat’l Wildlife Fed’n v. United States, 626 F.2d

917, 923 (D.C. Cir. 1980), the plaintiff has a clear right to

relief, and there is no other adequate remedy available to the

plaintiff, a court may grant mandamus relief.   Council of and for

the Blind of Del. Cnty. Valley, Inc. v. Reagan, 709 F.2d 1521,

1533 (D.C. Cir. 1983).    “[I]f there is no clear and compelling

duty under the statute as interpreted, the district court must

dismiss the action.   To this extent, mandamus jurisdiction under

§ 1361 merges with the merits[,]” In re Cheney, 406 F.3d 723, 729

(D.C. Cir. 2005), and will be assessed by whether the claim is

sufficiently pled.

II.   SUFFICIENCY OF CLAIM

      The defendants address the merits of Freedom Watch’s claim

for mandamus review by arguing that Freedom Watch has not alleged

sufficient facts from which to conclude that the committee at

issue here qualifies as an advisory committee under the FACA.

(Defs.’ Mem. at 9.)   As relevant to the claim at issue here, the

FACA defines an advisory committee as “any committee, board,

commission, council, conference, panel, task force, or other

similar group, or any subcommittee or other subgroup thereof

. . . which is . . . established or utilized by the President[.]”

5 U.S.C. app. 2 § 3(2).   Although the FACA’s definition of an

advisory committee covers many groups, it does not extend to
                               - 9 -

“every formal and informal consultation between the President

. . . and a group rendering advice.”    Pub. Citizen v. U.S. Dep’t

of Justice, 491 U.S. 440, 453 (1989).    Because “a group is a FACA

advisory committee when it is asked to render advice or

recommendations, as a group, and not as a collection of

individuals[,]” “an important factor in determining the presence

of an advisory committee [is] the formality and structure of the

group.”   Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997

F.2d 898, 913-14 (D.C. Cir. 1993) (“AAPS”).    Criteria relevant to

determining if a group has sufficient formality and structure to

qualify under the FACA as an advisory committee include whether

the group has 1) an organized structure, 2) a fixed membership,

and 3) a specific purpose.   Id. at 914.   However, groups vary

widely with respect to these features, falling on a continuum:

     At one end one can visualize a formal group of a
     limited number of private citizens who are brought
     together to give publicized advice as a group. That
     model would seem covered by the statute regardless of
     other fortuities such as whether the members are called
     “consultants.” At the other end of the continuum is 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.
     That model . . . does not trigger FACA.

Id. at 915.   Additionally, by definition, an advisory committee

cannot be “composed wholly of full-time, or permanent part-time,

officers or employees of the Federal Government[.]”   5 U.S.C.

app. 2 § 3(2).   “[A] committee is composed wholly of federal

officials if the President has given no one other than a federal
                              - 10 -

official a vote in or, if the committee acts by consensus, a veto

over the committee’s decisions.”   Cheney, 406 F.3d at 728.

     The complaint alleges that the committee exists to “gather[]

information and negotiat[e] agreements that will lead to the

passage of President Obama’s proposed Health Reform legislation”

(Compl. ¶ 7), suggesting that the committee has a specific

purpose.   Freedom Watch claims that “non-federal employees,

including lobbyists from the private pharmaceutical industry

(i.e. Pharma), Planned Parenthood, the U.S. Chamber of Commerce,

the American Association of Retired Persons (AARP), the American

Medical Association (AMA), and other private lobbyists . . .

regularly attended and fully participated” in committee meetings.

(Compl. ¶ 8.)   This description suggests that the committee has a

fixed membership.   While the complaint does not describe the

committee’s structure, the defendants cite no authority for the

proposition that a complaint pleading a cause of action under the

FACA must detail each of the three factors enumerated in AAPS in

order to state a claim for relief.5    Rather, Rule 8 does not


     5
       Each of the cases that the defendants cite in support of
their argument that Freedom Watch’s allegations are insufficient
to establish that the committee has the requisite formality and
structure to qualify as an advisory committee under the FACA
considered the issue on a motion for summary judgment, where the
defendants provided evidence that the challenged committees did
not satisfy the requirements. See Citizens for Responsibility &
Ethics in Wash. v. Leavitt, 577 F. Supp. 2d 427, 432-33 (D.D.C.
2008) (considering declaration on motion for summary judgment to
conclude that the committee in question did not qualify as an
advisory committee); Am. Soc’y of Dermatology v. Shalala, 962 F.
                              - 11 -

require a plaintiff to plead in the complaint all facts that are

needed to prove its claims, and Freedom Watch has plausibly

alleged the existence of an advisory committee that may be

subject to the requirements of the FACA.   See Rouse v. Berry, 680

F. Supp. 2d 233, 236 (D.D.C. 2010) (“[A] complaint needs to plead

‘only enough facts to [nudge] a claim to relief . . . across the

line from conceivable to plausible[.]’” (alterations in original)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))).

     The defendants also argue, citing Cheney, 406 F.3d at 728,

that Freedom Watch has not pled facts that establish that any

non-government employees were members of the committee.    (Defs.’

Mem. at 11.)   However, the complaint alleges that individuals not

employed by the federal government fully participated in and were

members of the committee (Compl. ¶ 8), and Cheney noted that an

identical allegation could be viewed “as alleging that non-

federal employees had the right to vote on, or to veto,”

decisions during committee meetings.   406 F.3d at 729.   While

Cheney ultimately concluded that the committee at issue did not

qualify as an advisory committee, it did so on the basis of a

statement the plaintiff attached to the complaint that listed as



Supp. 141, 148 (D.D.C. 1996) (same); Nader v. Baroody, 396 F.
Supp. 1231, 1234 (D.D.C. 1975) (same). The defendants have not
provided any evidence with their motion –– in the form of
declarations or otherwise –– from which to conclude that the
entity at issue here lacks the requisite structure or formality
to qualify as an advisory committee.
                               - 12 -

members of the committee only federal employees.   Id. at 729-30.

There is no comparable basis for concluding that the members of

the entity at issue here all were federal employees –– Freedom

Watch alleges that multiple non-federal employees are members of

the committee, and the government has provided no evidence that

only federal employees served on the committee.    Thus, the

defendants’ motion to dismiss will be denied with respect to

Freedom Watch’s claim for mandamus review against the President.

III. SEPARATION OF POWERS

     Finally, the defendants argue that applying the FACA to a

task force set up by the President to solicit advice would raise

separation of powers concerns by infringing on the President’s

ability to receive confidential counsel.   (Defs.’ Mem. at 12.)

Although “the lines between the powers of the three branches [of

government] are not always neatly defined[,]” the Constitution

safeguards against the “‘encroachment or aggrandizement of one

branch at the expense of the other.’”   Clinton v. Jones, 520 U.S.

681, 699-701 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 122

(1976)).   In determining whether the FACA “disrupts the proper

balance between the coordinate branches, the proper inquiry

focuses on the extent to which [a statute] prevents the Executive

Branch from accomplishing its constitutionally assigned

functions.”   Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443

(1977).    If the defendants could demonstrate that applying the
                              - 13 -

FACA would disrupt Executive Branch functions, the inquiry would

then turn to whether “that impact is justified by an overriding

need to promote objectives within the constitutional authority of

Congress.”   Id.

     “While no clause of Article II expressly grants the

President the power to acquire information or receive advice in

confidence, the necessity of receiving confidential advice

appears to flow from Article II.”   Nat’l Energy Policy Dev. Grp.,

219 F. Supp. 2d at 50.   Additionally, the Supreme Court and D.C.

Circuit have both suggested that applying the FACA to allow a

plaintiff to obtain communications between the President and his

advisors may be unconstitutional.   See Public Citizen, 491 U.S.

at 466 (noting the “formidable constitutional difficult[y]” posed

by the possibility that the FACA “violated the doctrine of

separation of powers”; AAPS, 997 F.2d at 909 (suggesting that the

FACA may interfere with the President’s Article II “ability to

consult with his advisers confidentially[,]” and “to organize his

advisers and seek advice from them as he wishes”).

     However, a court should avoid reaching constitutional issues

that are not strictly necessary to decide a case.    See Burton v.

United States, 196 U.S. 283, 295 (1905); see also Clinton, 520

U.S. at 690 (noting that “the importance of avoiding the

premature adjudication of constitutional questions . . . is

applicable to the entire Federal Judiciary”).   Here, Freedom
                              - 14 -

Watch’s entitlement to any of the committee’s communications

turns on whether, beyond this pleading stage, Freedom Watch can

present evidence sufficient to demonstrate that the committee

qualifies under the FACA as an advisory committee.   If the

government presents evidence demonstrating that the committee at

issue does not qualify under the FACA as an advisory committee,

the case can be resolved on that statutory ground without

reaching the constitutional question.    See Nat’l Energy Policy

Dev. Grp., 219 F. Supp. 2d at 54-55.

                            CONCLUSION

     The FACA creates no private right of action and the APA

provides none under which the plaintiff may bring a FACA claim on

the facts alleged here.   However, Freedom Watch has alleged

sufficiently in its complaint that the committee here was an

advisory committee under the FACA, Freedom Watch may be entitled

to mandamus review against the President, and dismissing the

complaint on separation of powers grounds would be premature.

Accordingly, it is hereby

     ORDERED that the defendants’ motion [7] to dismiss be, and

hereby is, GRANTED with respect to the plaintiff’s FACA and APA

claims, and DENIED with respect to the plaintiff’s claim for

mandamus review against the President.   It is further

     ORDERED that the parties file by September 26, 2011

supplemental memoranda addressing the issue of whether Freedom
                              - 15 -

Watch’s claims for access to meetings and to change the

composition of the committee are moot.

     SIGNED this 12th day of August, 2011.



                              __________/s/_______________
                              RICHARD W. ROBERTS
                              United States District Judge
