                   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 alleges that 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 that committee, violated the Federal

Advisory Committee Act (“FACA”), codified at 5 U.S.C. app. 2, by

failing to make publicly available certain records related to the

committee.   An August 12, 2011 opinion granted the defendants’

motion to dismiss the complaint for lack of subject-matter

jurisdiction and for failure to state a claim with respect to

Freedom Watch’s FACA and APA claims and denied it with respect to

Freedom Watch’s claim for mandamus review against the President.1

The opinion also ordered the parties to brief the issue of

whether the alleged committee had ceased meeting following the



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

enactment of health care reform legislation and whether certain

of Freedom Watch’s claims are moot.      Because Freedom Watch’s

claims for access to meetings and a change in the composition of

the committee are no longer redressable, they will be dismissed

as moot.    With regard to Freedom Watch’s claim for minutes of the

committee’s meetings, which is not moot, the parties will be

ordered to show cause why the government’s supplemental

memorandum should not be treated as a motion for summary judgment

on that claim.

                              BACKGROUND

        The background of this case is set out fully in Freedom

Watch, Inc. v. Obama, 807 F. Supp. 2d 28 (D.D.C. 2011) (the “2011

opinion”).    Briefly, in a complaint filed in 2009, Freedom Watch

alleges that the President established a committee, described as

the Obama Health Reform De Facto Advisory Committee (“OHRDFAC”),

to gather information and negotiate agreements in support of the

proposed health reform legislation enacted in 2010.     (Compl.

¶ 7.)    Freedom Watch seeks access to the minutes and decisions of

the committee, a listing of all individuals who attended or

participated in any committee meetings, 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.    (Id. ¶¶ 10, 13-14.)    The defendants

moved to dismiss under Federal Rule of Civil Procedure 12(b)(1)
                                 - 3 -

for lack of subject-matter jurisdiction and under Rule 12(b)(6)

for failure to state a claim.

     The 2011 opinion granted in part and denied in part the

defendants’ motion to dismiss.    As is relevant here, the opinion

held that Freedom Watch had alleged sufficiently that the

committee qualifies under FACA as an advisory committee and that

Freedom Watch might be entitled to mandamus relief against the

President.   The parties were ordered to brief the issue of

whether the alleged committee had ceased meeting in the wake of

Congress passing and the President signing the Patient Protection

and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119

(2010) and the Health Care and Education Reconciliation Act of

2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (“ACA”

collectively), and, if so, whether Freedom Watch’s claims for

access to meetings and for a change in the composition of the

committee were moot.

     The defendants filed a supplemental memorandum maintaining

that the alleged committee did not and does not now exist and

arguing that the case is therefore moot.   (Defs.’ Supp. Mem.

Concerning the Mootness of Count I (“Defs.’ Supp. Mem.” at 4-6.)

The defendants appended to their memorandum a declaration of

Kimberley Harris, a deputy assistant and deputy counsel to the

President in the Office of the White House Counsel, who

represented that she had reviewed the complaint.   (Defs.’ Supp.
                                - 4 -

Mem., Declaration of Kimberley Harris (“Harris Decl.”) ¶ 1.)

Ms. Harris states upon personal knowledge that various

individuals and entities “attended meetings at the White House,

at times in groups, to express their views of health care

reform,” but that the entity described by Freedom Watch as the

OHRDFAC in the complaint “does not exist and has never existed.”

(Id. ¶¶ 1-3.)   The declaration also indicates that the meetings

at issue were part of discussions held at the White House, videos

of which were made publicly available online.     (Id. ¶ 2.)

     Freedom Watch filed a response to the defendants’

supplemental memorandum in which it argues that the declaration

is not credible and requests discovery in the form of a

deposition of Ms. Harris.   (Pl.’s Resp. to Defs.’ Supp. Mem.

(“Pl.’s Resp.”) at 2-4.)    Plaintiff appended to its response two

press articles on the topic of citizens’ distrust of government.

Freedom Watch subsequently moved for an order to show cause why

defendants should not be held in contempt, arguing that the

defendants’ memorandum failed to respond to the question on which

supplemental briefing was ordered.      (Pl.’s Mot. for Order to Show

Cause.)

                             DISCUSSION

     Jurisdiction in the federal courts is limited under Article

III of the Constitution to the adjudication of actual, ongoing

cases or controversies.    Sierra Club v. Jackson, 648 F.3d 848,
                               - 5 -

852 (D.C. Cir. 2011).   If a case is moot, it must be dismissed

for lack of subject-matter jurisdiction under Rule 12(b)(1).

Fed. R. Civ. P. 12(b)(1); Sierra Club, 648 F.3d at 852 (“It has

long been settled that a federal court has no authority to give

opinions upon moot questions or abstract propositions, or to

declare principles or rules of law which cannot affect the matter

in issue in the case before it.”) (internal quotations omitted).

“A case is moot when ‘the challenged conduct ceases such that

there is no reasonable expectation that the wrong will be

repeated’ in circumstances where ‘it becomes impossible for the

court to grant any effectual relief whatever to the prevailing

party.’”   United States v. Phillip Morris USA Inc., 566 F.3d

1095, 1135 (D.C. Cir. 2009) (quoting City of Erie v. Pap’s A.M.,

529 U.S. 277, 287 (2000)).   “[T]he 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).     In

determining whether jurisdiction exists, not only the allegations

in the complaint but also materials outside the pleadings may be

considered.   EEOC v. St. Francis Xavier Parochial School, 117

F.3d 621, 624 n.3 (D.C. Cir. 1997); 5B Charles Alan Wright,

Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal

Practice and Procedure § 1350 (3d ed. 2011).

     The requirement of a live case or controversy exists

throughout the litigation.   “If events outrun the controversy
                                - 6 -

such that the court can grant no meaningful relief, the case must

be dismissed as moot.”   McBryde v. Comm. to Review, 264 F.3d 52,

55 (D.C. Cir. 2001).   Thus, even assuming that Freedom Watch’s

FACA claims could have been redressed at the time the complaint

was filed, Freedom Watch is entitled to maintain this action only

if it demonstrates that the relief it seeks is still available.

While the 2011 opinion held that Freedom Watch had alleged

sufficiently that the committee at issue qualifies under the FACA

as an advisory committee, it did not finally resolve the

existence of the committee or the alleged committee’s current

status.

     The allegations in Freedom Watch’s complaint themselves

support a finding that the alleged de facto committee no longer

meets.    The complaint proposed that “the goal” of the committee

allegedly established by President Obama was “gathering

information and negotiating agreements that will lead to the

passage of President Obama’s proposed Health Reform legislation.”

(Compl. ¶ 7.)   The complaint did not posit any mandate or tasks

that the committee possessed that would outlast the passage of

the relevant legislation, which occurred in 2010.   Although

Freedom Watch contends that “ongoing meetings and/or

communications must still be taking place, since implementation

of what has become known as ‘Obamacare’ involves thousands of

regulations, and there is much at stake concerning the
                                - 7 -

implementation of ‘Obamacare’” (Pl.’s Resp. at 1), “[i]t is

axiomatic that a complaint may not be amended by the briefs in

opposition to a motion to dismiss.”     Arbitraje Casa de Cambio,

S.A. de C.V. v. U.S. Postal Srvc., 297 F. Supp. 2d 165, 170

(D.D.C. 2003) (citing Coleman v. Pension Benefit Guar. Corp., 94

F. Supp. 2d 18, 24 n.8 (D.D.C. 2000)).     Nevertheless, Freedom

Watch’s briefing fails to make clear that any “ongoing meetings

and/or communications” (Pl.’s Resp. at 1) take place in a

committee with the same organized structure and fixed membership

as the OHRDFAC allegedly has.   Moreover, Freedom Watch has not

demonstrated that the change in specific purpose -- from ensuring

passage of to implementing regulations associated with health

care reform legislation -- has not changed the structure and

membership of the alleged OHRDFAC.      See Ass’n of Am. Physicians &

Surgeons, Inc. v. Clinton, 997 F.2d 898, 914 (D.C. Cir. 1993)

(“AAPS”) (describing organized structure, fixed membership, and

specific purpose as criteria relevant to determining whether a

group has sufficient formality to qualify as an advisory

committee under FACA).

     Freedom Watch further has not rebutted the government’s

evidence, in the form of the Harris Declaration made under

penalty of perjury, that no formal advisory committee on health

care reform exists.   Ms. Harris’ declaration stated that Planned

Parenthood and the U.S. Chamber of Commerce –- two entities that
                               - 8 -

Freedom Watch alleged were participants in OHRDFAC meetings

(Compl. ¶ 8) -- along with others, attended meetings at the White

House “to express their views of health care reform.”   (Harris

Decl. ¶ 2.)   The declaration thus supports the defendants’

position that the discussions that took place were in the nature

of “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,” a “model [that] does not

trigger FACA.”   AAPS, 997 F.2d at 915.   While Freedom Watch

devotes its own supplemental briefing to vigorously criticizing

the declaration, its argument that “Ms. Harris’ Declaration

effectively admits that ongoing meetings and communications are

occurring; otherwise, she would not have submitted this

disingenuous, non-responsive, and misleading, at best, sworn

declaration under oath” (Pl.’s Resp. at 3) provides no factual

basis for disputing her representation that the alleged committee

did not and does not exist.2

     Because there are no grounds to find that the alleged

committee, even if it did at some point exist, exists at present,

the case is moot with respect to Freedom Watch’s claims for

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

     2
      The two press articles attached to Freedom Watch’s response
do not even address consultations regarding health care
legislation, much less provide any factual rebuttal to the
defendants’ declarant’s assertion that the President did not
establish an advisory committee on that topic.
                                - 9 -

meetings of the OHRDFAC (Compl. ¶ 13), and with respect to its

claim for the appointment of “at least one person with a

different point of view” to the committee.    (Id. ¶ 14.)   On these

claims, Freedom Watch has not carried its burden to “establish[]

by a preponderance of the evidence that the Court possesses

jurisdiction” over an ongoing controversy that could be redressed

by a favorable decision.   Ctr. for Arms Control and Non-

Proliferation v. Redd, Civil Action No. 05-682 (RMC), 2005 WL

3447891, at *3 (D.D.C. Dec. 15, 2005).

     A different analysis applies to Freedom Watch’s claim for

access to the minutes and decisions of the committee, along with

a listing of all individuals who attended or participated in

committee meetings.   (Compl. ¶ 10.)    “The federal government’s

statutory duty under FACA to allow the public to inspect and copy

documents may be limited in time by the statute, but the ability

of a court to award access to the documents as relief for

previous violations of that duty is limited only by the existence

of the documents.”    Judicial Watch, Inc. v. Nat’l Energy Policy

Dev. Grp., 219 F. Supp. 2d 20, 30 (D.D.C. 2002).     Thus, even if

claims against a particular custodian of records of an alleged

committee subject to FACA become moot when the custodian

relinquishes such records and the committee ceases to exist,

“th[e] case is not moot because, regardless whether mandamus

relief is available, a declaration of the [plaintiff’s] legal
                              - 10 -

right to the materials could form the basis of an injunction”

against the current custodian.   Ctr. for Arms Control and Non-

Proliferation v. Pray, 531 F.3d 836, 839 n.* (D.C. Cir. 2008)

(citing Cummock v. Gore, 180 F.3d 282, 292-93 (D.C. Cir. 1999)

(remanding a request for documents under FACA as not rendered

moot by the termination of the advisory committee in question)).

An injunction against the custodian of the requested records

“would redress the [plaintiff’s] claimed injury.”   Id.

     Freedom Watch’s claim for committee materials therefore must

be resolved on the merits.   The government’s supplemental

memorandum, representing that no formal advisory committee on

health care reform not only does not but also has never existed,

might be construed as a motion for summary judgment on this

claim.   However, the 2011 opinion resolved the defendants’ motion

to dismiss under Rules 12(b)(1) and 12(b)(6) and ordered

supplemental briefing only on the mootness of the claims for

access to meetings and a change in the committee’s composition.

Although Freedom Watch specifically styled its supplemental

memorandum as a “Response” to the defendants’ memorandum (see

Pl.’s Reply to the Defs.’ Opp’n to Pl.’s Mot. for Order to Show

Cause at 3 (arguing that staggered briefing was warranted to

permit the plaintiff to address the defendants’ arguments)), and

provided its own documentary evidence, it has not received

adequate notice of any need to oppose summary judgment.
                              - 11 -

See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (observing

that “district courts are widely acknowledged to possess the

power to enter summary judgment sua sponte, so long as the losing

party was on notice that [it] had to come forward with all of

[its] evidence.”).   In general, summary judgment “is proper only

after the plaintiff has been given adequate time for discovery,”

First Chicago Int’l v. United Exch. Co., Ltd., 836 F.2d 1375,

1380 (D.C. Cir. 1988), and, in its response to the defendants’

supplemental memorandum, Freedom Watch requested discovery to

depose Ms. Harris.   The parties therefore will be ordered to show

cause why the government’s supplemental memorandum should not be

treated as a motion for summary judgment, and Freedom Watch will

be permitted to justify its request for discovery.

     Finally, there are no grounds on which to hold the

defendants in contempt as urged by Freedom Watch in its motion

for an order to show cause.   The defendants complied with the

order “to brief the issue of whether the committee has ceased all

meetings relating to the ACA and Freedom Watch’s claims are

moot.”   Freedom Watch, 807 F. Supp. 2d at 31 n.2.   Because the

2011 opinion held only that the complaint sufficiently pled that

a committee existed, the defendants were not foreclosed from

maintaining, and submitting a declaration, that the committee as

alleged did not and does not in fact exist.   Although the order

for supplemental briefing did not invite additional briefing on
                                - 12 -

the availability of mandamus relief, defendants’ election to

discuss that issue (Defs.’ Supp. Mem. at 7-15) does not nullify

the fact of their compliance with the order and is not a basis

for a contempt finding or any other sanctions.

                       CONCLUSION AND ORDER

     Freedom Watch’s claims for advance notice of, and the

ability to participate in, future meetings of the OHRDFAC, as

well as its claim to change the committee’s membership, must be

dismissed as moot because the plaintiff has not carried its

burden to demonstrate that the alleged committee continues in

existence.   Accordingly, it is hereby

     ORDERED that the claims for advance notice of committee

meetings and a change in the committee’s composition be, and

hereby are, DISMISSED as moot.    It is further

     ORDERED that the plaintiff’s motion [18] for an order to

show cause why defendants should not be held in contempt be, and

hereby is, DENIED.   It is further

     ORDERED that parties show cause by June 5, 2012 why the

defendants’ supplemental memorandum should not be treated as a

motion for summary judgment on the claim for minutes of the

alleged committee’s meetings.    It is further

     ORDERED that the plaintiff’s requests [21, 22, 23] for a

telephonic status conference be, and hereby are, DENIED.
                         - 13 -

SIGNED this 15th day of May, 2012.


                                   /s/
                         RICHARD W. ROBERTS
                         United States District Judge
