CENTER FOR BIOLOGICAL DIVERSITY v. TIDWELL et al

Filing 26

MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 3/9/2017. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Center for Biological Diversity,
Plaintiff,
v.

Civil Action No. 15-2176 (CKK)

Thomas Tidwell, et al.,
Defendants.
MEMORANDUM OPINION
(March 9, 2017)
Plaintiff Center for Biological Diversity has brought suit under the Federal
Advisory Committee Act (“FACA”) and the Administrative Procedures Act (“APA”)
against Defendants United States Department of Agriculture (“USDA”); United States
Forest Service, an agency of the USDA; and Thomas Tidwell, the Chief of the Forest
Service. Plaintiff claims that Defendants violated FACA and the APA by convening an
advisory committee to develop a conservation strategy for the California spotted owl
without following certain procedural requirements that FACA imposes on such
committees. Defendants have moved to dismiss the Complaint, ECF No. 1, for lack of
subject-matter jurisdiction and for failure to state a claim.
Upon consideration of the pleadings, 1 the relevant legal authorities, and the record

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The Court’s consideration has focused on the following documents:
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•
•
•
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•
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Defs.’ Mem. of Law in Supp. of Their Mot. to Dismiss, ECF No. 10-1 (“Defs.’
Mem.”).
Corrected Decl. of James L. Rosen, ECF No. 11-1 (“Rosen Decl.”).
Mem. of P. & A. in Opp. to Defs.’ Mot. to Dismiss, ECF No. 12 (“Opp’n Mem.”).
Defs.’ Reply Mem. in Supp. of Their Mot. to Dismiss, ECF No. 13 (“Reply Mem.”).
Decl. of Sarah Sawyer, ECF No. 13-1 (“Sawyer Decl.”).
Pl.’s First Sur-reply, ECF No. 18 (“Pl.’s Surreply”).
Pl.’s Second Sur-reply, ECF No. 19-1 (“Pl.’s Second Surreply”).
Defs.’ Resp. to Pl.’s Sur-reply Brief, ECF No. 20-1 (“Defs.’ Resp.”).
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as a whole, the Court GRANTS IN PART AND DENIES IN PART Defendants’ [10]
Motion to Dismiss. Plaintiff’s claims survive only to the extent they seek relief under the
APA for Defendants’ alleged failure to comply with FACA’s document disclosure
provision, 5 U.S.C. app. 2 § 10(b). Accordingly, Plaintiff’s other claims are DISMISSED
WITHOUT PREJUDCE.
I. BACKGROUND
A. Statutory Background
FACA imposes a number of procedural requirements on “advisory committees,”
which are defined as “any committee . . . which is . . . established or utilized by one or
more [federal] agencies, in the interest of obtaining advice or recommendations for . . . one
or more agencies or officers of the Federal Government . . . .” 5 U.S.C. app. 2 § 3(2). The
statute exempts “any committee that is composed wholly of full-time, or permanent parttime, officers or employees of the Federal Government . . . .” Id. FACA was enacted out of
a desire to assess the need for the numerous committees, boards,
commissions, councils, and similar groups which have been established to
advise officers and agencies in the executive branch of the Federal
Government. . . . Its purpose was to ensure that new advisory committees
be established only when essential and that their number be minimized; that
they be terminated when they have outlived their usefulness; that their
creation, operation, and duration be subject to uniform standards and
procedures; that Congress and the public remain apprised of their existence,
activities, and cost; and that their work be exclusively advisory in nature.
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 445–46 (1989) (internal quotation
marks and citations omitted). To achieve that purpose, FACA requires that advisory

Because the Court finds that Plaintiff’s Second Surreply and Defendants’ Response to
Plaintiff’s First Surreply were helpful to its resolution of this matter, the Court GRANTS
Plaintiff’s [19] Second Motion for Leave to File Sur-reply, and GRANTS Defendants’ [20]
Motion for Leave to File a Response to Plaintiff’s Sur-Reply Brief.
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committees, inter alia, file a charter, give advance notice of any meeting, hold all meetings
open to the public, and keep minutes and other records of those meetings. See 5 U.S.C.
app. 2 §§ 9(c), 10(a), 10(c). FACA also mandates that, unless an exception applies under
the Freedom of Information Act (“FOIA”), “the records, reports, transcripts, minutes,
appendixes, working papers, drafts, studies, agenda, or other documents which were made
available to or prepared for or by each advisory committee shall be available for public
inspection and copying . . . .” Id. § 10(b). Finally, FACA requires that each advisory
committee be “fairly balanced in terms of the points of view represented and the functions
to be performed,” id. § 5(b)(2), and “not be inappropriately influenced by the appointing
authority or by any special interest,” id. § 5(b)(3).
B. Factual Background
This case involves an advisory committee established to create a conservation
strategy for the California spotted owl—“a small and declining genetically-distinct
subspecies found primarily in California’s Sierra Nevada Region and the mountains of
southern California.” Opp’n Mem. at 2. As part of a settlement agreement in 2014, the
Forest Service agreed to create a spotted owl conservation strategy, but retained the
discretion to select experts and to determine the scope of the strategy. Id. at 2–3. On
September 25, 2015, the Forest Service announced via an “initiation letter” that it was
convening “a team of experienced managers and scientific advisors” to develop the
conservation strategy (the “Strategy Team”). Id. at 3 (quotation marks and citations
omitted); Compl. ¶ 24; Rosen Decl. ¶ 5. The Strategy Team met only once before this case
was filed, for a two-day period spanning November 12–13, 2015. Compl. ¶ 29; Rosen Decl.
¶ 27.

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At the time it was formed, the Strategy Team included at least four non-federal
scientists, and at least 17 members altogether, but included no experts that had been
previously recommended by Plaintiff in a July 2015 letter to the Forest Service. Compl. ¶
25. Plaintiff sent another letter to the Forest Service after the Strategy Team was convened,
requesting that additional experts be included to ensure that the Strategy Team was “fairly
balanced,” and warning that the team as composed was “not conducive to spotted owl
conservation,” and that the team was violative of FACA. Plaintiff sent a third letter to the
same effect in November 2015. With no response forthcoming from the Forest Service,
Plaintiff filed the Complaint on December 15, 2015. Opp’n Mem. at 3–4; Compl. ¶¶ 27–
29.
Three days after the Complaint was filed, but before it was served, on December
18, 2015, the Forest Service issued a “revised initiation letter,” which relayed that the four
non-federal team members would no longer participate in the Strategy Team, meaning that
the Strategy Team was then composed entirely of federal employees. Defs.’ Mem. at 4.
This action was taken “due to the FACA concerns raised by the Center for Biological
Diversity . . . .” Rosen Decl. ¶ 10. The four non-federal scientists, however, were not
completely separated from the workings of the Strategy Team. Rather, the Forest Service
represented that “their input [would] be sought on an individual basis . . . ,” but added that
the non-federal scientists “ [would] not be included in any group emails, conference calls,
or working group meetings that are managed or controlled by the Forest Service.” Id. ¶ 11.
Finally, on May 27, 2016, Defendants also publicly disclosed a variety of materials
associated with the Strategy Team’s November 2015 meeting. Sawyer Decl. at 1–2.

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II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), Plaintiff bears the burden of establishing that the Court has subject-matter
jurisdiction over its claims. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir.
2007); Ctr. for Arms Control & Non-Proliferation v. Redd, No. CIV.A. 05-682 (RMC),
2005 WL 3447891, at *3 (D.D.C. Dec. 15, 2005). Although the Court’s decision regarding
its “subject-matter jurisdiction necessarily precedes a ruling on the merits, the same
principle does not dictate a sequencing of jurisdictional issues.” Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584 (1999). In other words, the Court may dismiss Plaintiff’s claims
because they are moot without deciding whether Plaintiff had standing to bring those
claims. Arizonans for Official English v. Arizona, 520 U.S. 43, 66–67 (1997) (“We may
resolve the question whether there remains a live case or controversy . . . without first
determining . . . standing . . . because the former question, like the latter, goes to the Article
III jurisdiction of this Court and the courts below, not to the merits of the case.”).
In determining whether there is jurisdiction, the Court may “consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented
by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks
omitted); see also Charles Alan Wright & Arthur R. Miller, 5B Federal Practice &
Procedure § 1350 (3d ed. 2017) (noting the “wide array of cases from the four corners of
the federal judicial system involving the district court’s broad discretion to consider
relevant and competent evidence on a motion to dismiss for lack of subject matter

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jurisdiction to resolve factual issues”). “Although a court must accept as true all factual
allegations contained in the complaint when reviewing a motion to dismiss pursuant to
Rule 12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in
resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”
Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal
quotation marks omitted).
B. Motion to Dismiss for Failure to State a Claim
Defendants also move to dismiss the Complaint for “failure to state a claim upon
which relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint,”
or “documents upon which the plaintiff’s complaint necessarily relies even if the document
is produced not by the plaintiff in the complaint but by the defendant in a motion to
dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117,
119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider
documents in the public record of which the court may take judicial notice. Abhe &

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Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). Apart from these two
exceptions, however, “in evaluating a motion for failure to state a claim under Rule
12(b)(6), the Court cannot rely on the same set of materials as in evaluating a motion under
Rule 12(b)(1) for lack of jurisdiction” without converting the motion to dismiss into a
motion for summary judgment as provided for in Federal Rule of Civil Procedure 12(c).
Hagan v. United States, 197 F. Supp. 3d 30, 35 (D.D.C. 2016) (Kollar-Kotelly, J.). Whether
to convert a motion to dismiss to a motion for summary judgment is a decision “committed
to the sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46,
50 (D.D.C. 2006). Generally, district courts exercise that discretion based on their
“determination of whether or not the proffered material, and the resulting conversion . . .
is likely to facilitate the disposition of the action.” 5C Wright et al., supra, § 1366.
III. DISCUSSION
The Complaint states two “claims for relief.” The first alleges that:
By establishing and/or utilizing the ‘California Spotted Owl Conservation
Strategy Team’ in the interest of obtaining advice or recommendations,
obtaining and using the Team’s advice, failing to have a Team that is fairly
balanced in terms of the points of view represented and the functions to be
performed, not opening the Team’s meeting(s) to the public, not making
Team’s documents available to the public, and/or otherwise permitting the
Team to meet without complying with FACA, Defendants are violating
FACA, and acting in a manner which is arbitrary, capricious, and contrary
to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706.
Compl. ¶ 34. The second claim for relief alleges that:
By engaging in a pattern and practice of violating FACA, Defendants have
acted, and are acting, in a manner which is arbitrary, capricious and contrary
to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706.
Compl. ¶ 36. The Court’s analysis proceeds in two parts. First, the Court addresses
Plaintiff’s claims to the extent they seek relief for violations of FACA’s procedural

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mandates other than the document disclosure requirement imposed by 5 U.S.C. app. 2 §
10(b) (referred to herein as “section 10(b)”). The Court finds that these claims, including
claims based on the requirement that the Strategy Team be “fairly balanced in terms of the
points of view represented,” have been mooted by the change in the composition of the
Strategy Team. In doing so, the Court also concludes that Plaintiff’s second claim for relief
must be dismissed in its entirety, as no “pattern or practice” of FACA violations has been
plausibly alleged, nor is one apparent from the record as a whole. Finally, with respect to
the alleged violations of section 10(b), the Court concludes that this claim has not been
rendered moot, and that Plaintiffs may pursue this claim pursuant to the APA, but not
directly under FACA.
A. FACA Does Not Provide a Cause of Action
As a preliminary matter, the Court addresses whether FACA provides a cause of
action. Defendants contend that “FACA contains no provision for judicial review,” and
that accordingly, “judicial review for [P]laintiff’s FACA claim derives from the [APA].”
Defs.’ Mem. at 10. Plaintiff frequently discusses the Complaint as if it brings causes of
action under both FACA and the APA, but never directly challenges Defendants’
contention that FACA does not provide a cause of action. Although decisions of the United
States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) and the
Supreme Court of the United States have sometimes assumed without elaboration that
FACA provides a cause of action, see Judicial Watch, Inc. v. Nat’l Energy Policy Dev.
Grp., 219 F. Supp. 2d 20, 34 (D.D.C. 2002) (collecting cases), those decisions precede
Sandoval, wherein the Supreme Court held that with respect to causes of action, the
“judicial task is to interpret the statute Congress has passed to determine whether it displays

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an intent to create not just a private right but also a private remedy. . . . Statutory intent on
this latter point is determinative.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001)
(citation omitted). Since Sandoval, courts in the D.C. Circuit have largely held that FACA
does not provide a cause of action, given that none is apparent from the statutory text.
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, see generally 5 U.S.C.
app. 2, and because this fact alone is ‘determinative,’ the court holds that the FACA does
not provide the plaintiff with a private right of action.”); Nat’l Energy, 219 F. Supp. 2d at
34 (“Notwithstanding the relative confusion that exists within the FACA doctrine with
respect to this question, the Supreme Court’s standard is now clear: this Court cannot read
into a statute a cause of action that Congress has not expressly created.”); Freedom Watch,
Inc. v. Obama, 807 F. Supp. 2d 28, 32–33 (D.D.C. 2011); see also In re Cheney, 334 F.3d
1096, 1113 n.1 (D.C. Cir. 2003) (Randolph, C.J., dissenting), vacated and remanded sub
nom. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (noting that “[a]ll agree that
FACA does not itself create a cause of action”). 2 The Court concurs with the reasoning of
those decisions, and finds that FACA does not provide a private cause of action in this case.

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Only one decision by a court in the D.C. Circuit has suggested otherwise since Sandoval.
Ctr. for Arms Control & Non-Proliferation v. Lago, No. CIV A 05-682 RMC, 2006 WL
3328257, at *4 (D.D.C. Nov. 15, 2006) (noting that “it appears that the Supreme Court has
essentially assumed that citizens may sue if they have been denied access to records under
FACA”), aff’d sub nom. Ctr. for Arms Control & Non-Proliferation v. Pray, 531 F.3d 836
(D.C. Cir. 2008). Nevertheless, the issue of whether FACA provides a cause of action was
irrelevant to the ultimate holding in Lago, which was that the relevant committee was not
subject to FACA, mandating dismissal of the lawsuit, 2006 WL 3328257, at *8; and the
D.C. Circuit affirmed Lago on the same basis, without any discussion of whether FACA
provides a cause of action, 531 F.3d at 844.
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Accordingly, Plaintiff’s claims must be dismissed to the extent they are premised on the
existence of one.
Plaintiff also alleges that Defendants, by failing to comply with FACA, violated
section 706 of the APA by acting in a “manner which is arbitrary, capricious, and contrary
to law.” Compl. ¶ 34 (citing 5 U.S.C. § 706). This Court has jurisdiction under the APA to
review final agency actions for which there is no other adequate remedy. 5 U.S.C. § 704.
Defendants do not contest that Plaintiff may proceed under the APA, and the Court agrees
that Plaintiff may, as the Complaint is brought against two federal agencies, and Plaintiff
challenges the actions of those agencies in failing to comply with FACA in relation to an
alleged advisory committee convened by the Forest Service. Dep’t of Commerce, 736 F.
Supp. 2d at 30 (holding that plaintiff could bring FACA claims pursuant to the APA); Nat’l
Energy, 219 F. Supp. 2d at 40 (finding that “to hold meetings closed to the public and
without complying with the various procedural requirements of FACA” was a final agency
action subject to review under the APA).
B. Plaintiff’s Non-Document FACA Claims are Moot
The Court turns to address whether it has jurisdiction over Plaintiff’s claims
stemming from alleged violations of FACA’s procedural requirements, other than the
document disclosure provision of section 10(b), which is addressed in the next section.
The jurisdiction of federal courts is limited by Article III of the Constitution to the
adjudication of actual, ongoing cases or controversies. This limitation “gives rise to the
doctrines of standing and mootness.” Foretich v. United States, 351 F.3d 1198, 1210 (D.C.
Cir. 2003); Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C. Cir. 2011). Pursuant to the
mootness doctrine, it “is not enough that the initial requirements of standing and ripeness

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have been satisfied; the suit must remain alive throughout the course of litigation, to the
moment of final appellate disposition. If events outrun the controversy such that the court
can grant no meaningful relief; the case must be dismissed as moot.” People for the Ethical
Treatment of Animals, Inc. v. United States Fish & Wildlife Serv., 59 F. Supp. 3d 91, 95
(D.D.C. 2014) (“PETA”) (internal quotation marks and citations 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. Philip Morris USA
Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009) (internal quotation marks omitted).
Mootness is often described as “the doctrine of standing set in a time frame: [t]he
requisite personal interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189–90 (2000) (internal quotation marks omitted).
Nevertheless, two important caveats to the mootness doctrine distinguish it from standing.
See id. Both allow a district court to retain jurisdiction over a dispute if the halt in offending
conduct is more of a temporary reprieve than a bonafide resolution of the matter. First,
under the voluntary cessation doctrine, if a defendant chooses to terminate the challenged
conduct after a lawsuit is filed, the defendant “bears the formidable burden of showing that
it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to
recur.” Id. at 190. The voluntary cessation doctrine ensures “that a defendant is not ‘free to
return to his old ways’ after it takes unilateral action that moots a case.” PETA, 59 F. Supp.
3d at 96 (citing U.S. v. W.T. Grant Co., 345 U.S. 629, 633 (1953)); see also Larsen v. U.S.
Navy, 525 F.3d 1, 4 (D.C. Cir. 2008). Second, under “the capable of repetition yet evading

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review” doctrine, a plaintiff may avoid dismissal by demonstrating that “(1) the challenged
action is in its duration too short to be fully litigated prior to its cessation or expiration, and
(2) there is a reasonable expectation that the same complaining party would be subjected
to the same action again.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316,
322 (D.C. Cir. 2009) (internal quotation marks and alterations omitted). Unlike the
voluntary cessation doctrine, pursuant to which a case is not moot unless the defendant
demonstrates that his or her wrongful conduct is not reasonably expected to resume, the
“capable of repetition yet evading review” exception applies only if the plaintiff
demonstrates that his or her lawsuit fits the exception. See Honeywell Int’l, Inc. v. Nuclear
Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (“The initial ‘heavy burden’ of
establishing mootness lies with the party asserting a case is moot . . . but the opposing party
bears the burden of showing an exception applies . . . .” (citations omitted)).
Unlike claims for document disclosure pursuant to section 10(b), which survive the
termination of a FACA advisory committee, see infra at 19, courts in the D.C. Circuit have
routinely held that claims based on FACA’s other procedural requirements are mooted
when the relevant advisory committee ceases to exist. See Freedom Watch, Inc. v. Obama,
859 F. Supp. 2d 169, 174 (D.D.C. 2012) (“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 . . . claims for advance notice of, and the ability to participate in, any future
meetings of the [committee], and with respect to . . . the appointment of ‘at least one person
with a different point of view’ to the committee.”); Citizens for Responsibility & Ethics in
Washington v. Duncan, 643 F. Supp. 2d 43, 51 (D.D.C. 2009) (“Regarding the
Department’s other alleged FACA violations, including the violation of FACA’s open

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meetings and charter requirements, the Department’s establishment of the New Panel
renders these claims moot.”); Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 879 F.
Supp. 103, 106 (D.D.C. 1994) (“Plaintiffs’ suggestion that a declaratory judgment might
be appropriate even if the working group has been terminated and all appropriate working
group documents have been publicly released is also rejected. At that point, there will
simply be no continuing case or controversy for judicial resolution. Nor will there be any
basis for injunctive or other equitable relief. The case will in fact be moot, and defendants
will be legally entitled to dismissal.”); see also Byrd v. U.S. E.P.A., 174 F.3d 239, 244 (D.C.
Cir. 1999) (noting that plaintiff’s “injury would be mooted if EPA convened another panel
. . . in compliance with FACA and provided [plaintiff] with all panel documents either
before or at the meeting”).
The Court assumes, arguendo, that the Strategy Team as constituted in September
2015 was a FACA advisory committee. Nonetheless, by December 2015, the Strategy Team
no longer formally included any non-federal employees. See supra at 4. As such, the
Strategy Team now falls within the exemption in 5 U.S.C. app. 2 § 3(2) for “any committee
that is composed wholly of full-time, or permanent part-time, officers or employees of the
Federal Government.” In other words, by operation of law, the FACA advisory committee
at issue in this matter—the Strategy Team as composed in September 2015—no longer
exists. Plaintiff asserts, however, that “although Defendants claim that the four non-federal
scientists no longer participate in the subgroups to which they had previously been
assigned, Defendants nonetheless admit that they will ‘continue to draw on [these
scientists’] expertise on an individual basis.’” Opp’n Mem. at 19–20 (alteration in original).
In other words, although Defendants have removed the non-federal scientists from the

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committee, Plaintiff contends that Defendants plan to rely on those non-federal scientists
in a manner that will render them de facto members of the Strategy Team. Because
Defendants voluntarily changed the composition of the Strategy Team, in order for the
Court to find that Plaintiff’s non-section 10(b) claims have been mooted by that change,
Defendants must demonstrate that “it is absolutely clear the allegedly wrongful behavior
could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190. 3
Based on the present record, the Court finds that Defendants have met that burden:
there is no reasonable expectation at this time that the Strategy Team will again fall out of
compliance with FACA. Defendants, by declaration submitted under penalty of perjury,
have represented that the decision to change the composition of the Strategy Team was
taken to ensure that the team complied with FACA. Rosen Decl. ¶ 10 (“due to the FACA
concerns raised by [Plaintiff] in a letter dated November 10, 2015, the Forest Service, in
an abundance of caution, removed the [non-federal] scientists” from the Strategy Team).
The Team now consists only of federal scientists. Although Defendants admit that “as
development of the Conservation Strategy proceeds, the Forest Service intends to solicit
the expertise of [the non-federal scientists],” id. ¶ 11, they represent that “since these
scientists are no longer part of the Strategy working group, their input will be sought on an
individual basis and they will not be included in any group emails, conference calls, or

3

Defendants claim that their actions were not “voluntary” within the meaning of the
voluntary cessation doctrine. Defs.’ Mem. at 17. The Court disagrees. Although
Defendants reconstituted the Strategy Team before they were served with the Complaint
(but after it was filed), their decision to do so stemmed from their concern that the Strategy
Team did not comply with FACA. Rosen Decl. ¶ 10. Consequently, even if Defendants
were unaware of this particular lawsuit, it is not the case that “the challenged activity
stop[ed] for reasons unrelated to litigation.” Defs.’ Mem. at 17 (citing Wyo. Outdoor
Council v. Dombeck, 148 F. Supp. 2d 1, 9 (D.D.C. 2001)).
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working group meetings that are managed or controlled by the Forest Service.” Id. Plaintiff
claims that this will render the non-federal scientists de facto members of the Strategy Team
and thereby turn the Strategy Team once again into a FACA advisory committee. But that
conclusion conflicts with the binding decisions of the D.C. Circuit on who is a “member”
of a purported FACA advisory committee.
First, in Association of American Physicians & Surgeons, Inc. v. Clinton, the D.C.
Circuit instructed that
a consultant may still be properly described as a member of an advisory
committee if his involvement and role are functionally indistinguishable
from those of the other members. . . . If a ‘consultant’ regularly attends and
fully participates in working group meetings as if he were a ‘member,’ he
should be regarded as a member. Then his status as a private citizen would
disqualify the working group from the section 3(2) exemption for meetings
of full-time government officials.
997 F.2d 898, 915 (D.C. Cir. 1993). Subsequently, in In re Cheney, the D.C. Circuit offered
a far more restrictive view on who is an advisory committee member for purposes of the
section 3(2) exemption, holding that “a committee is composed wholly of federal officials
if the President has given no one other than a federal official a vote in or, if the committee
acts by consensus, a veto over the committee’s decisions.” 406 F.3d 723, 728 (D.C. Cir.
2005). Admittedly, the decision in Cheney was informed by the “severe separation-ofpowers problems” peculiar to that case, and even there, the D.C. Circuit appears to have
left open the possibility that de facto participation in an advisory committee by non-federal
employees could void the section 3(2) exemption. See Freedom Watch, 807 F. Supp. at 35–
36. Nevertheless, even under the more lenient standard set forth in Clinton, there is no
reasonable expectation that merely seeking input from the non-federal scientists “on an
individual basis” and under circumstances where “they will not be included in any group

15

emails, conferences calls, or working group meetings that are managed or controlled by the
Forest Service,” will render them de facto members of the Strategy Team, given that their
“involvement and role” will not be “functionally indistinguishable” from formal members
of the Strategy Team. See Duncan, 643 F. Supp. 2d at 51 (holding that where a new advisory
committee had been created in compliance with FACA, “[w]ithout further evidence to the
contrary, this Court has ‘no reasonable expectation that the Department’s FACA violations
will be repeated’” (alterations omitted)). 4
Furthermore, even were the Strategy Team to transform again into a FACA advisory
committee, that does not mean that the wrongful conduct at issue in this case will be
repeated. Rather, Defendants may choose to comply with FACA’s open meetings, fair
balance, and other non-section 10(b) requirements at that point; and as “other Circuits have
consistently recognized[,] . . . where the defendant is a government actor—and not a private
litigant—there is less concern about the recurrence of objectionable behavior.” Citizens for
Responsibility & Ethics in Washington v. U.S. S.E.C., 858 F. Supp. 2d 51, 61 (D.D.C. 2012)
(collecting cases); see also Larsen, 525 F.3d 1 at 4 (“[T]he mere power to reenact a
challenged policy is not a sufficient basis on which a court can conclude that a reasonable
expectation of recurrence exists. Rather, there must be evidence indicating that the
challenged policy likely will be reenacted.” (internal quotation marks and alterations

4

Although Plaintiff seeks to rely on Heartwood, Inc. v. U.S. Forest Service, that case
resolved the question of whether a group of individuals were a FACA advisory committee,
and not whether informal participation in a committee could render someone an advisory
committee member. Moreover, Heartwood held that even though the team members at
issue “drafted their summaries in sub-groups or individually, and not as one large group,”
the team “met twice as a group to discuss the existing data available and to outline the
report.” 431 F. Supp. 2d 28, 35 (D.D.C. 2006). Consequently, unlike here, all of the
purported team members in Heartwood appear to have been formal and equally
participating members of the alleged FACA advisory committee.
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omitted)). Accordingly, the Court finds that based on the present record, there is no
reasonable expectation that the wrongful conduct at issue here—the formation of a FACA
advisory committee and subsequent failure to comply with FACA—will reoccur. This, of
course, is a prediction; but if Defendants do violate FACA in the future in connection with
the Strategy Team, Plaintiff may renew its non-document FACA claims, and any
subsequent voluntary cessation shall be viewed with considerable skepticism by the Court.
See Jesus, Inc. v. Hillsborough County Aviation Authority, 162 F.3d 627, 630 (11th Cir.
1998). 5 For the same reasons, and although Plaintiff has failed to even allege or otherwise
contend in their briefing that this case is “capable of repetition yet evading review,” the
Court finds that this mootness exception similarly does not apply under the circumstances
as there is no “reasonable expectation that the same complaining party would be subjected
to the same action again.” Del Monte, 570 F.3d at 322.
Plaintiff also alleges that Defendants are “engaging in a pattern and practice of

5

Plaintiff has also requested jurisdictional discovery to “assess what is actually happening
with the non-federal employees and the overall Team membership.” Opp’n Mem. at 20.
The Court denies this request, without prejudice, as such discovery would be tantamount
to continuing oversight over the workings of the Strategy Team. The historical facts of the
Strategy Team are not in dispute and Plaintiff has not provided the Court with any nonspeculative reason to conclude that the Strategy Team will be operated in a manner
inconsistent with the Rosen Declaration. That one of the federal team members has been
replaced by another federal team member, if anything, supports that conclusion. See Pl.’s
Second Surreply at 1; FC Inv. Grp. LC v. IFX Markets, Ltd., 529 F.3d 1087, 1094 (D.C.
Cir. 2008) (“a request for jurisdictional discovery cannot be based on mere conjecture or
speculation”); Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 53 (D.D.C. 2003)
(“Where there is no showing of how jurisdictional discovery would help plaintiff discover
anything new, it is inappropriate to subject defendants to the burden and expense of
discovery.” (internal quotation marks and alterations omitted)); Williams v. ROMARM, 187
F. Supp. 3d 63, 72 (D.D.C. 2013), aff’d sub nom. Williams v. Romarm, SA, 756 F.3d 777
(D.C. Cir. 2014) (“[W]hen requesting jurisdictional discovery, a plaintiff must make a
detailed showing of what discovery it wishes to conduct or what results it thinks such
discovery would produce.” (internal quotation marks and alterations omitted)).
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violating FACA,” which, if countenanced by the Court, could potentially save Plaintiff’s
non-document FACA claims from mootness. Compl. ¶ 36; Opp’n Mem. at 25. That
allegation is based on Payne Enterprises, Inc. v. United States, a case brought pursuant to
the Freedom of Information Act, and therefore of questionable applicability to Plaintiff’s
claims pursuant to FACA and the APA. 837 F.2d 486, 491 (D.C. Cir. 1988); see also Del
Monte Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 116, 119 (D.D.C. 2010)
(holding that claims challenging a “pattern and practice” of unreasonable delay are not
justiciable under the APA). Without deciding whether a “pattern and practice” claim could
be brought under the circumstances of this case, the Court finds that no pattern or practice
of FACA violations is apparent from the record, nor has one been plausibly alleged.
Plaintiff claims that “Defendants are engaging in a pattern and practice of violating FACA
by having to constantly reach out beyond the Group’s/Team’s federal employees to nonfederal owl scientists . . . .” Opp’n Mem. at 24. But for the reasons stated above, there is
no reason to believe that this alleged future conduct will violate FACA, and no plausible
facts have been alleged to buttress this claim; rather, the Complaint merely makes the
conclusory assertion that Defendants are engaged in a pattern and practice of violating
FACA. Compl. ¶ 36. Consequently, there is only one FACA violation before the Court—
that is, the one allegedly stemming from the creation of the Strategy Team in September
2015—and that does not suffice to make a “pattern or practice” of FACA violations, either
under a Rule 12(b)(1) or Rule 12(b)(6) analysis. See Muttitt v. U.S. Cent. Command, 813
F. Supp. 2d 221, 231 (D.D.C. 2011) (“The Court concludes that an allegation of a single
FOIA violation is insufficient as a matter of law to state a claim for relief based on a policy,
pattern, or practice of violating FOIA.”). That leads inexorably to two conclusions. First,

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under a Rule 12(b)(1) analysis of the entire record, the pattern and practice claim is not
viable, and therefore cannot save Plaintiff’s non-section 10(b) claims from mootness.
Second, based on the well-pleaded factual allegations in the Complaint, and drawing all
reasonable inferences in favor of Plaintiff, the pattern and practice claim is implausible,
and therefore must be dismissed pursuant to Rule 12(b)(6).
Finally, Plaintiff is not aided by its request for a declaratory judgment. See Opp’n
Mem. at 23. Generally, if a case is moot, a request for declaratory judgment will not
resuscitate the lawsuit, unless an exception to the mootness doctrine applies. NBC-USA
Hous., Inc., Twenty-Six v. Donovan, 674 F.3d 869, 873 (D.C. Cir. 2012) (“Where an
intervening event renders the underlying case moot, a declaratory judgment can no longer
‘affect[ ] the behavior of the defendant towards the plaintiff . . . .’” (alteration in original));
PETA, 59 F. Supp. 3d at 96 (“[t]hat mootness of a claim against a specific agency action
also moots claims for declaratory relief over those specific agency actions is well-attested
in D.C. Circuit precedent”). Here, the Court has already determined that no exception to
the mootness doctrine applies. However, Plaintiff seeks to rely on Byrd, where the D.C.
Circuit held that a request for declaratory judgment was not moot, even after the advisory
committee had been disbanded and the relevant materials disclosed, because “such a
declaration [would] give [plaintiff] ammunition for his attack on the Committee’s findings
in subsequent agency proceedings . . . .” 174 F.3d at 244 (internal quotation marks omitted).
The D.C. Circuit ultimately found that plaintiff’s claim was not moot because his injury
arose “not only from EPA’s failure to provide him materials but also from the tardiness of
their eventual release . . . .” Id. That decision, however, is not applicable to this case as the
relevant holding in Byrd dealt only with a request for document disclosure pursuant to

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section 10(b). See Duncan, 643 F. Supp. 2d at 50–51 (“in Byrd, the need for declaratory
relief turned on the timeliness of the production”). Here, the Court holds that Plaintiff’s
section 10(b) claim may proceed, and Byrd did not address the effect, if any, of a request
for declaratory judgment on the mootness of claims for violations of FACA’s other
procedural requirements. Beyond that legal distinction, there is also no suggestion before
the Court that the advisory committee in this matter has completed its work and made its
recommendations to the convening agency, such that a declaratory judgment would assist
Plaintiff in challenging subsequent agency proceedings based on those recommendations,
which was the factual premise underlying the decision in Byrd. Finally, as a practical
matter, to the extent a declaratory judgment is ultimately appropriate due to the “tardiness”
of Defendants’ document disclosure, that relief may be granted at a later stage in these
proceedings in connection with Plaintiff’s claim under section 10(b).
Accordingly, for all of the foregoing reasons, the Court concludes that Plaintiff’s
claims for violations of FACA’s procedural requirements, other than the document
disclosure provision of section 10(b), are moot, and must be dismissed without prejudice.
C. Plaintiff’s Section 10(b) Claim Does Not Require Dismissal
FACA provides for public access to certain advisory committee materials. 5 U.S.C.
App. 2 § 10(b). The government is required to make section 10(b) materials available to
the public as a matter of course, unless a FOIA exception applies. Food Chem. News v.
Dep’t of Health & Human Servs., 980 F.2d 1468, 1472 (D.C. Cir. 1992). A claim for
document disclosure survives the termination of a FACA advisory committee, at least until
all of the relevant materials have been disclosed. Cummock v. Gore, 180 F.3d 282, 292
(D.C. Cir. 1999); Nat’l Energy, 219 F. Supp. 2d at 30 (“whether relief [seeking section

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10(b) materials] is available is contingent not on the continued existence of the group, but
on the continued existence of the records and information”); Freedom Watch, 859 F. Supp.
2d at 174. However, Defendants have asserted that all of the relevant section 10(b)
materials associated with the November 2015 Strategy Team meeting have been disclosed,
thereby mooting any claim for relief stemming from section 10(b). Reply Mem. at 3.
Plaintiff strenuously objects and cites two categories of Strategy Team materials that
Defendants allegedly should have, but did not, disclose pursuant to section 10(b). Pl.’s
Surreply at 2. These materials include certain correspondence and the first three chapters
of a conservation strategy memorandum prepared by members of the Strategy Team. Id.
Defendants respond that they are not required to disclose these materials under FACA, and
that no additional materials requiring disclosure exist. Defs.’ Resp. at 1–2. In this instance,
the Court agrees with Plaintiff.
Defendants make much of their disclosure of materials from the November 2015
meeting of the Strategy Team. But section 10(b) also requires the disclosure of documents
that “were made available to or prepared for or by each advisory committee . . . .” 5 U.S.C.
App. 2 § 10(b) (emphasis added). At minimum, the undisclosed draft strategy chapters may
require disclosure as, based on Defendants’ declarations, those chapters were prepared by
Strategy Team members for the eventual use of the Strategy Team. See Rosen Decl. ¶¶ 22–
25. Defendants claim that the draft chapters are exempt from FACA because they are the
“preliminary work of subgroups,” which need not be disclosed under FACA. The sources
Defendants cite for this contention, however, are inapposite. They stand for the very
different point that materials produced by staff of advisory committees, as opposed to
members of those committees, may not need to be disclosed under section 10(b). Defs.’

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Resp. at 2 n.1. 6 Accordingly, the Court concludes Defendants have not demonstrated that
all of the requisite section 10(b) materials have been disclosed, meaning that Plaintiff’s
section 10(b) claim is not moot, and that the Court has subject-matter jurisdiction over the
claim.
Furthermore, the Court finds that Plaintiff has pleaded a viable claim under the APA
for a violation of section 10(b), as the Complaint plausibly alleges that the Strategy Team
was a FACA advisory committee, and that the Forest Service failed to disclose the materials
required by section 10(b). The Strategy Team was convened by the Forest Service, a federal
agency; initially included non-federal employees as members; and was tasked with
providing advice to the Forest Service regarding California spotted owl conservation.
Compl. ¶¶ 24–26; see 5 U.S.C. app. 2 § 3(2). The Complaint also alleges that “documents
associated with the [November 2015 meeting of the Strategy Team], as well as documents
associated with the Team’s actions thus far, have not been released to the public despite
repeated requests for them.” Compl. ¶ 29. Although this statement is belied to some extent
by Defendants’ declarations, those declarations may not be reviewed by the Court in the
context of a Rule 12(b)(6) analysis without converting the motion to dismiss into one for

6

In particular, Defendants cite National Anti-Hunger Coalition for the statement that
“surely Congress did not contemplate that interested parties like the plaintiffs should have
access to every paper through which recommendations are evolved, have a hearing at every
step of the information-gathering and preliminary decision-making process, and interject
themselves into the necessary underlying staff work so essential to the formulation of
ultimate policy recommendations.” Nat’l Anti-Hunger Coal. v. Exec. Comm. of President’s
Private Sector Survey on Cost Control, 557 F. Supp. 524, 529 (D.D.C.), aff’d, 711 F.2d
1071 (D.C. Cir. 1983). That statement, however, was made in the context of the court ruling
that certain “task forces” that performed “staff functions” for a FACA advisory committee
were themselves not FACA advisory committees. The Office of Legal Counsel
memorandum cited by Defendants essentially mirrors the holding in National Anti-Hunger
Coalition. Defs.’ Resp. at 2 (citing Disclosure of Advisory Comm. Deliberative Materials, 12
U.S. Op. Off. Legal Counsel 73, 75 (1988)).
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summary judgment. See supra at 6–7. The Court declines to do so because, for the reasons
stated above, even with the document disclosures that are described in the declarations, it
does not appear that Defendants have conclusively met their obligations under section
10(b), meaning a conversion to summary judgment would not “likely . . . facilitate the
disposition of the action.” Id. Accordingly, Plaintiff has stated a viable claim for relief
under the APA for Defendants’ alleged violation of section 10(b) in connection with the
Strategy Team.
IV. CONCLUSION
For all of the foregoing reasons, the Court GRANTS IN PART AND DENIES IN
PART Defendants’ [10] Motion to Dismiss. Plaintiff’s claims survive only to the extent
they seek relief under the APA for Defendants’ alleged failure to comply with FACA’s
document disclosure provision, 5 U.S.C. app. 2 § 10(b). Accordingly, Plaintiff’s other
claims are DISMISSED WITHOUT PREJUDCE.
In addition, the Court GRANTS Plaintiff’s [19] Second Motion for Leave to File
Sur-reply, and GRANTS Defendants’ [20] Motion for Leave to File a Response to
Plaintiff’s Sur-Reply Brief.
An appropriate Order accompanies this Memorandum Opinion.
Dated: March 9, 2017
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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