Case 1:18-cv-01925 Document 1 Filed 08/16/18 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VOTEVETS ACTION FUND
2201 Wisconsin Ave. NW, #320
Washington, DC 20007,
Plaintiff,
No. 18-cv-1925

v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS
810 Vermont Ave. NW
Washington, DC 20420; and
ROBERT WILKIE, in his official capacity as
Secretary of the United States
Department of Veterans Affairs,
810 Vermont Ave. NW
Washington, DC 20420,
Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff VoteVets Action Fund (“VoteVets”) hereby sues Defendants the United States
Department of Veterans Affairs (the “Department” or the “VA”) and Robert Wilkie, in his
official capacity as the Secretary of the VA, and alleges as follows:
1.

President Trump and his Administration have made a practice of outsourcing

decisionmaking on key issues of policy and government administration to private individuals,
especially those who have business or social relationships with the President. These individuals
have influenced, shaped, and dictated personnel and policy decisions made by the
Administration. They have done so without being subjected to transparency requirements,
conflict-of-interest screens, and other accountability rules required of public servants.

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2.

In this case, the influential individuals are members of President Trump’s social

club, Mar-a-Lago; the usurped authority belongs to the United States Department of Veterans
Affairs; and the victims are America’s veterans. Since January 2017, the Department has
repeatedly sought the advice of, and acted on the basis of collective recommendations from, Ike
Perlmutter, Bruce Moskowitz, and Marc Sherman. These members of the “Mar-a-Lago Council”
(or the “Council”) are part of this prominent and powerful advisory committee not because of
any particular expertise or relevant experience. They have none—no government experience, no
U.S. military experience. Rather, each simply shares a financial relationship with President
Trump as a dues-paying member of the Mar-a-Lago Club, a private golf and social club in Palm
Beach, Florida, owned by the Trump Organization.
3.

Since its inception, the Mar-a-Lago Council has operated in secret. The Trump

Administration made no public announcement upon the Council’s creation, and despite the
Council’s extensive activities—including more than twenty meetings—the Administration has
failed to inform the public about the activities of a group empowered to make recommendations
affecting the lives of millions of veterans.
4.

While the full extent of the Mar-a-Lago Council’s work remains hidden, the scope

of its influence is now coming into view. Through frequent phone calls and meetings with top
officials at the Department, including private meetings held inside the Mar-a-Lago Club, the
Council’s views are solicited and its advice followed on a broad range of policy and personnel
matters concerning veterans. This is particularly true with respect to the makeup of the VA’s
senior leadership. Upon the recommendation of the Mar-a-Lago Council, the VA has already
made substantial changes to senior leadership posts, including the Secretary.

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5.

In addition to affecting personnel changes at prominent positions within the

Department’s leadership, the Mar-a-Lago Council has also advised the Department on, among
other matters, building a national medical device registry at the VA, initiatives to prevent veteran
suicide, the process for evaluating VA surgery programs, transforming the VA’s digital records
system, and privatizing the healthcare services currently provided by the VA.
6.

The Mar-a-Lago Council has admitted that it serves as an advisory committee for

the VA. The Council has boasted about its role, even. In a statement that they issued jointly, Mr.
Perlmutter, Mr. Moskowitz, and Mr. Sherman said that they, together, “saw an opportunity to
assist the Department of Veterans Affairs’s leadership,” and that they, together, “offered [their]
counsel . . . to assist the President, Secretary, and VA leadership in . . . making the essential
decisions . . . that affect our nation’s veterans.” “At all times,” they said, they “offered [their]
help and advice on a voluntary basis.” They “were on emails and conference calls with senior
staff, and [then-]Secretary Shulkin referred on numerous occasions to his discussions with
outside experts,” including, presumably, them. They “discuss[ed] healthcare delivery and
healthcare quality challenges facing the agency” and “were always willing to share [their]
thoughts.” Indeed, they “provided [their] advice and suggestions so that members of the
Administration could consider [their suggestions] . . . to make [the Administration’s] own
decisions on actions to be taken.”1
7.

According to their joint statement, the Mar-a-Lago Council is “proud of any

contribution [it has] been able to make to improve the healthcare provided to the fine men and

1

Statement by Ike Perlmutter, Bruce Moskowitz and Marc Sherman to ProPublica (July 18-20,
2018), https://www.documentcloud.org/documents/4704885-Full-Statement-by-PerlmutterMoskowitz-and-Sherman.html [hereinafter Mar-a-Lago Council Statement].

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women who are served by the VA.”2 The VA, on the other hand, has thus far failed entirely to
square the Council’s power and influence with federal law. Thus, because Defendants have
flouted important transparency requirements, the full extent of the Mar-a-Lago Council’s
influence, activities, and motives remains unknown. Consequently, veterans, their families, and
other affected members of the public, like Plaintiff, have almost no insight into whether or how
the Council has given consideration to issues critical to veterans, including the privatization of
VA healthcare services. Moreover, the lack of transparency leaves the affected public with no
view at all into what, if any, precautions have been taken to ensure that members of the Mar-aLago Council provide advice and recommendations out of concern for the public good and not
their personal profit.
8.

VoteVets, an advocate for veterans, now sues to redress this unlawful and

dangerous departure from required procedures. Plaintiff brings this action to enforce the Federal
Advisory Committee Act, 5 U.S.C. app. 2 (the “FACA” or the “Act”). The FACA was enacted in
1972 to curb the executive branch’s reliance on superfluous and secretive “advisory
committees”: ad hoc, non-federal bodies that nonetheless counseled governmental
decisionmakers on significant swaths of national policy. Prior to the FACA, special interests had
used these committees—and the associated veneer of governmental legitimacy—to drive federal
decisionmaking outside the light of public scrutiny, participation, and debate.
9.

When the government fails to adhere to the FACA’s requirements, public

confidence in the government as a whole is diminished. Where, as here, that failure relates to the
provision of critical benefits to America’s veterans, the consequences are particularly stark.

2

Id.
4

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PARTIES
10.

Plaintiff VoteVets, also known as VoteVets.org, is a not-for-profit organization

incorporated under the laws of the District of Columbia. VoteVets has nearly 500,000 supporters
with whom it regularly communicates about issues concerning veterans, including VA health
care, veterans’ employment, and veterans’ education benefits. VoteVets’ mission is to coordinate
and execute public issue campaigns on topics such as these to ensure that the voices of
America’s veterans are heard regarding matters of public policy.
11.

Defendant the United States Department of Veterans Affairs is a federal agency

within the meaning of the FACA, 5 U.S.C. app. 2 § 3(3), and of the Administrative Procedure
Act (“APA”), 5 U.S.C. § 551(1), that is headquartered in Washington, D.C.
12.

Defendant Robert Wilkie is sued in his official capacity as Secretary of the United

States Department of Veterans Affairs.
JURISDICTION AND VENUE
13.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because

this action arises under federal law, specifically the FACA, 5 U.S.C. app. 2, and the APA, 5
U.S.C. §§ 702, 706.
14.

Venue is proper in this judicial district under 28 U.S.C. § 1391(e)(1)(A) because

Defendants are an agency and an officer of the United States and because Defendant the VA
resides in Washington, D.C.
STATUTORY FRAMEWORK
I.

The Federal Advisory Committee Act
15.

A sunshine law, the Federal Advisory Committee Act requires transparency and

permits public participation when the executive branch establishes or uses non-federal bodies for
the purpose of seeking advice and generating policy. When passing the FACA, Congress
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explained that “[o]ne of the great dangers in the unregulated use of advisory committees is that
special interest groups may use their membership on such bodies to promote their private
concerns,” citing as an example an Industrial Waste Committee where “only representatives of
industry were present[,]” and “[n]o representatives of conservation, environment, clean water,
consumer, or other public interest groups were present.” H.R. Rep. No. 92-1017, at 6 (1972), as
reprinted in 1972 U.S.C.C.A.N. 3491, 3496.
16.

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 . . . which is
(A) established by statute or reorganization plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more agencies,
in the interest of obtaining advice or recommendations for the President or one or
more agencies or officers of the Federal Government, except that such term
excludes (i) any committee that is composed wholly of full-time, or permanent
part-time, officers or employees of the Federal Government, and (ii) any
committee that is created by the National Academy of Sciences or the National
Academy of Public Administration.
5 U.S.C. app. 2 § 3(2). Advisory committees are subject to the FACA’s requirements unless
specifically exempted by statute, see id. § 4(a); unless established by the Central Intelligence
Agency, the Federal Reserve, or the Office of the Director of National Intelligence, id. § 4(b); or
unless they are purely “local civic group[s]” or “[s]tate or local committee[s],” id. § 4(c). None
of these exceptions applies here.
17.

Among other things, the FACA requires: (1) before acting or meeting, an advisory

committee must file a charter with the Administrator of the General Services Administration
(“GSA”) or the head of the agency that created the committee; (2) the make-up of the committee
must “be fairly balanced in terms of the points of view represented and the functions to be
performed”; (3) the charter must contain appropriate provisions to “assure that the advice and
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recommendations of the advisory committee will not be inappropriately influenced by the
appointing authority or by any special interest, but will instead be the result of the advisory
committee’s independent judgment”; (4) all meetings must be open to the public; (5) notice of
each meeting must be published in the Federal Register; (6) all interested persons must be
allowed to attend, appear before, or file statements with the advisory committee; (7) all records,
reports, transcripts, minutes, appendices, working papers, drafts, studies, agendas, and other
documents made available to or prepared for or by the advisory committee must be available to
the public, and (8) detailed minutes of each meeting must be kept. Id. §§ 5(b)(2)-(3), 5(c), 9(c),
10(a)(1)-(3), 10(b)-(c).
18.

As specifically relevant here, the FACA requires that, before an advisory

committee “meet[s] or take[s] any action,” a charter for the committee, containing specified
information, must be filed with the GSA Administrator, “in the case of Presidential advisory
committees, or . . . with the head of the agency to whom any advisory committee reports and
with the standing committees of the Senate and of the House of Representatives having
legislative jurisdiction of such agency.” Id. § 9(c).
19.

The FACA also requires advisory committees to facilitate public comment and

participation. Thus, an advisory committee must provide “timely notice” of its meetings to the
public, id. § 10(a)(2), and must allow interested persons to “attend, appear before, or file
statements with [the] committee, subject to such reasonable rules or regulations as the
Administrator [of the GSA] may prescribe,” id. § 10(a)(3). The Administrator of the GSA has
implemented these statutory obligations by requiring advisory committees to publish notice of
their meetings “at least 15 calendar days prior” to the meetings, unless documented and
“exceptional circumstances” require otherwise. 41 C.F.R. § 102-3.150. All meetings must be

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held “in a manner or place reasonably accessible to the public” and allow “[a]ny member of the
public [to] speak to or otherwise address the advisory committee if the agency’s guidelines so
permit.” Id. § 102-3.140(a), (d).
20.

In addition, the FACA requires publication of “the records, reports, transcripts,

minutes, appendixes, working papers, drafts, studies, agenda, [and] other documents . . . made
available to or prepared for” the committee. 5 U.S.C. app. 2 § 10(b). These materials must be
released well before the relevant advisory committee meeting, so that the public can “follow the
substance of the [committee’s] discussions.” Food Chem. News v. Dep’t of Health & Human
Servs., 980 F.2d 1468, 1472 (D.C. Cir. 1992).
21.

Finally, the FACA provides that “[d]etailed minutes,” containing specified

information, “of each meeting of each advisory committee shall be kept.” 5 U.S.C. app. 2
§ 10(c).
II.

The VA’s FACA Guide
22.

The VA publishes a VA Advisory Committee Management Guide that expands

on agency expectations “to ensure that VA Federal Advisory Committees carry out their
responsibilities under FACA.”3
23.

In its Guide, the VA reiterates that when the FACA was enacted, Congress

determined that “[n]ew committees should be established only when determined to be essential,”
that “[t]here should be standard and uniform procedures governing the operation of committees,”
that “Congress and the public should be kept informed of the number, purpose, membership

3

Department of Veterans Affairs, Advisory Committee Management Guide 1 (Aug. 2017),
https://www.va.gov/ADVISORY/docs/ACMO-2017ACMOGuidesignedbyCoSVA.pdf.

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activities, and costs of advisory committees,” and that “[t]he function of advisory committees
should be advisory only.”4
24.

The Guide emphasizes that “[n]o advisory committee may meet or take any action

until a charter has been filed by VA’s [Committee Management Officer] in accordance with
FACA.”5
25.

The Guide notes that

One of VA’s principal objectives in managing its advisory committees is to
ensure that committee members appropriately reflect the diversity of American
society and the Veteran population. In the selection of members for discretionary
committees, VA is required to consider a cross-section of those directly affected,
interested, and qualified, as appropriate to the nature of the advisory committee.
Committees requiring technical expertise should include persons with
demonstrated professional or personal qualifications and experience relevant to
the functions and tasks to be performed.6
III.

The Administrative Procedure Act
26.

The APA permits judicial review by persons “suffering legal wrong because of

agency action, or adversely aggrieved by agency action.” 5 U.S.C. § 702; see id. §§ 702-704.
Under the APA, a “reviewing court . . . shall compel agency action unlawfully withheld or
unreasonably delayed,” id. § 706(1), and “hold unlawful and set aside agency action, findings,
and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or not otherwise in
accordance with law,” id. § 706(2)(A).

4

Id. at 3.
Id. at 10.
6
Id. at 18.
5

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FACTS
I.

The Mar-a-Lago Council Is Established and Holds Meetings Without Observance of
Procedures Required by Law
27.

In January 2017, the Mar-a-Lago Council was established to advise the VA on

policy issues affecting veterans and the administration of the Department. As President-elect
Trump said, the Council was created “to help” the Secretary of Veterans Affairs “straighten out
the VA.”7
28.

President Trump named Isaac “Ike” Perlmutter to lead the Council, and Bruce

Moskowitz and Marc Sherman to serve on the Council.8
29.

Mr. Perlmutter is the Chief Executive Officer for the entertainment and

production company Marvel Entertainment. Mr. Moskowitz is a doctor practicing in West Palm
Beach, Florida, and the founder of the Biomedical Research and Education Foundation. Mr.
Sherman is a managing director who specializes in financial fraud and white-collar investigations
with the consulting firm Alvarez & Marsal.9
30.

While none of these men have notable experience with issues affecting veterans,

all three do maintain personal relationships with President Trump that were formed or cemented
through their affiliation with the President’s golf and social club, the Mar-a-Lago Club, where
they are all members.

7

Natalia Wojcik et al., Read the Transcript From Trump’s News Conference, CNBC, Jan. 11,
2017, https://www.cnbc.com/2017/01/11/transcript-of-president-elect-donald-j-trumps-newsconference.html.
8
See Isaac Arnsdorf, The Shadow Rulers of the VA, ProPublica (Aug. 7, 2018),
https://www.propublica.org/article/ike-perlmutter-bruce-moskowitz-marc-sherman-shadowrulers-of-the-va.
9
Id.

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31.

In the words of all three Council members: “When we saw an opportunity to

assist the Department of Veterans Affairs’s leadership in addressing some of the most intractable
problems of the VA, we considered it an honor and a privilege to do so.”10
32.

On information and belief, Mr. Perlmutter, Mr. Moskowitz, and Mr. Sherman

have not been hired or appointed to formal government positions by the President, the
Department, or any other agency within the federal government.11
33.

On information and belief, no charter for the Council has been made or filed.

34.

On the VA’s website, the VA discloses 28 advisory committees.12 The Mar-a-

Lago Council is not listed among them.
35.

Given that the Council has operated in secret, the full scope of its activities are

unknown, except to Defendants. However, publicly available information reveals that, as of the
date of this filing, the Council has held more than twenty meetings, and has maintained a close
working relationship with Defendants. Mr. Perlmutter, Mr. Moskowitz, and Mr. Sherman all
participated in at least nine of these meetings.
a. On December 28, 2016, Mr. Perlmutter, Mr. Moskowitz, and Mr. Sherman
convened a council of healthcare executives to meet with President-elect
Trump. According to Mr. Trump’s spokesman, Sean Spicer, the meeting

10

Mar-a-Lago Council Statement, supra note 1.
Arnsdorf, supra note 8.
12
U.S. Department of Veterans Affairs, Advisory Committee Management Office,
https://www.va.gov/ADVISORY/Advisory_Committees.asp.
11

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included “lots of brainstorming on how to improve and reform [the
Department of Veterans Affairs].”13
b. On January 12, 2017, during a press conference, President-elect Trump said
Mr. Perlmutter was “very, very involved” in advising his team on veterans
affairs issues.14 Following the press conference, a “source with knowledge of
the matter confirmed” that Mr. Perlmutter would “take on an informal, though
‘significant,’ advisory role in Trump’s administration with respect to veterans
affairs.”15
c. On or around February 7, 2017, the Mar-a-Lago Council met in person for the
first time since President Trump took office.16 Then-Secretary of Veterans
Affairs David Shulkin flew to Mar-a-Lago for the meeting with the Council.
On information and belief, Council participants included Mr. Perlmutter, Mr.
Sherman, and Mr. Moskowitz.
d. Writing to then-Secretary Shulkin by email several days after the initial
meeting at Mar-a-Lago, the Council outlined the pace at which they would
update Mr. Shulkin on the Council’s recommendations and progress, saying

13

Priyanka Dayal McCluskey, Partners HealthCare’s CEO Talks Obamacare, VA with Trump,
Bos. Globe, Dec. 28, 2016, https://www.bostonglobe.com/business/2016/12/28/trump-meetswith-partners-chief-executive-fla/gwjDtaS4xrGLIU0HKUK4uK/story.html.
14
Wojcik et al., supra note 7.
15
Tim Huddleston Jr., Why Donald Trump Gave Marvel’s CEO a Shout-Out in His Press
Conference, Fortune, Jan. 11, 2017, http://fortune.com/2017/01/11/donald-trump-marvel-ceoike-perlmutter/.
16
The Mar-a-Lago Crowd Documents, DS-Moskowitz 1 Att 1-2_Redacted 2, ProPublica,
https://www.propublica.org/datastore/dataset/the-mar-a-lago-crowd-documents [hereinafter
ProPublica Documents]; see Arnsdorf, supra note 8.

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they would “not need to meet in person monthly, but meet face to face only
when necessary” along with “conference calls at a convenient time.”17
e. On February 15, 2017, the Mar-a-Lago Council held a 30-minute call with
then-Secretary Shulkin.18
f. On February 23, 2017, the Mar-a-Lago Council held a 45-minute call with
then-Secretary Shulkin and the President and CEO of CVS Health. Mr.
Sherman was unable to participate on this call, but Mr. Moskowitz assured the
group that he would update him following the call.19
g. On February 28, 2017, the Mar-a-Lago Council held a one-hour call to discuss
VA Technology Transfer with then-Secretary Shulkin and a medical
technology transfer authority.20 Council participants included Mr. Perlmutter,
Mr. Sherman, and Mr. Moskowitz.
h. On March 3, 2017, the Mar-a-Lago Council held a one-hour call with thenSecretary Shulkin and senior officials from Apple, the United States Digital
Service, and the Mayo Clinic.21 Council participants included Mr. Perlmutter,
Mr. Sherman, and Mr. Moskowitz.
i. On March 4, 2017, the Mar-a-Lago Council held a 30-minute call with thenSecretary Shulkin.22

17

Id.
Id. at DS Sherman 1-1_Redacted.
19
Id. at DS Sherman 2-3_Redacted.
20
Id. at DS Perlmutter 1-1_Redacted.
21
Id. at DS Perlmutter 2 att 1-1_Redacted.
22
Id. at DS Perlmutter 3-2_Redacted.
18

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j. On April 11, 2017, the Mar-a-Lago Council held a one-hour call with thenSecretary Shulkin to discuss issues relating to fraud and abuse within the VA
system.23
k. On April 12, 2017, the Mar-a-Lago Council held a one-hour call with thenSecretary Shulkin and the Chairman and CEO of Kaiser Foundation Health
Plan.24 Council participants included Mr. Perlmutter, Mr. Sherman, and Mr.
Moskowitz.
l. On April 17, 2017, the Mar-a-Lago Council held a 30-minute call with
Johnson & Johnson’s executive staff.25 Council participants included Mr.
Perlmutter, Mr. Sherman, and Mr. Moskowitz.
m. On April 17, 2017, the Mar-a-Lago Council attended a one-hour dinner with
then-Secretary Shulkin.26
n.

On April 27, 2017, the Mar-a-Lago Council attended a one-and-one-half hour
breakfast with then-Secretary Shulkin.27

o. On April 27, 2017, the Mar-a-Lago Council attended a two-hour tour of the
Walter Reed Army Medical Center.28 Council participants included Mr.
Perlmutter, Mr. Sherman, and Mr. Moskowitz.

23

Id. at DS Sherman 4-1_Redacted.
Id. at DS Sherman 5-2_Redacted.
25
Id. at DS Sherman 6-2_Redacted.
26
Id. at DS Sherman 7-1_Redacted.
27
Id. at DS Perlmutter 4-1_Redacted.
28
Id. at DS Perlmutter 5-5a-2_Redacted.
24

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p. On May 30, 2017, the Mar-a-Lago Council held a thirty-minute call with thenSecretary Shulkin.29
q. On June 14, 2017, the Mar-a-Lago Council held an hour-and-a-half call with
then-Secretary Shulkin and staff at the VA, Apple, the Mayo Clinic, Johns
Hopkins University, Brigham Health, Connected Health and Partners Health
Care, Biomedical Research & Education Foundation, Kaiser Permanente, the
Cleveland Clinic, and Mount Sinai Health System.30 Council participants
included Mr. Perlmutter, Mr. Sherman, and Mr. Moskowitz.
r. On September 1, 2017, the Mar-a-Lago Council held a 30-minute call with
then-Secretary Shulkin.31 Council participants included Mr. Perlmutter, Mr.
Sherman, and Mr. Moskowitz.
s. On December 18, 2017, the Mar-a-Lago Council held a one-hour call with
then-Secretary Shulkin, the CEO of the Miami Cancer Institute, and two
executives from the American College of Surgeons.32 Mr. Sherman
participated in the call; Mr. Perlmutter and Mr. Moskowitz were included in
the correspondence scheduling the call.
t. On January 29, 2018, the Mar-a-Lago Council held a one-hour call with thenSecretary Shulkin.33

29

Id. at DS Moskowitz 4-1a-2-Redacted.
Id. at DS Moskowitz 6-1a-3_Redacted.
31
Id. at DS Sherman 9-2_Redacted.
32
Id. at DS Sherman 10-7_Redacted.
33
Id. at DS Moskowitz 6-1_Redacted.
30

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u. On February 27, 2018, the Mar-a-Lago Council held a three-hour meeting
with then-Secretary Shulkin.34 On information and belief, the meeting
occurred at the Mar-a-Lago Club.
v. On Robert Wilkie’s first day as then-acting VA Secretary, Mr. Sherman was
waiting for Mr. Wilkie in his office.35
w. On April 2, 2018, the Mar-a-Lago Council held a 30-minute meeting with
then-acting Secretary Wilkie.36
x. From November 2017 to at least April 2018, the Council participated “on two
or three monthly calls” with the VA contracting team responsible for
implementing a ten-year project to reform the VA’s digital records system.37
y. On April 2, 2018, then-acting Secretary Wilkie met with the Council at the
Mar-a-Lago Club.38
36.

Defendants and the Council failed to publish notices of these meetings in the

Federal Register. Nor have Defendants or the Council made available any material that the
Council has generated or received in connection with these meetings or with its work more
generally. Finally, there is no record that Defendants and the Council have kept or published
minutes of the Council’s many meetings.

34

Id. at DS Perlmutter 7-1_Redacted.
Arnsdorf, supra note 8.
36
ProPublica Documents, supra note 16, at RW Sherman 1 (Acting Sec)-1_Redacted.
37
Arthur Allen, ‘Who the Hell Is This Person?’ Trump’s Mar-a-Lago Pal Stymies VA Project,
Politico, Apr. 30, 2018, https://www.politico.com/story/2018/04/30/trump-doctor-healthtechnology-508297.
38
ProPublica Documents, supra note 16, at RW Itinerary-Fayetteville, NC-WPB, FL 04.1720.2018-8_Redacted.
35

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37.

As further described below, had notices of the above meetings been published and

had the meetings been open to the public, as required by the FACA, VoteVets would have
mobilized efforts to ensure that its views on privatization on other veterans’ issues were wellrepresented at the meetings.
II.

The Mar-a-Lago Council Advises the Department on Policy and Personnel Matters
38.

The Council has broad license to provide advice and recommendations to

President Trump and the VA on all manner of issues affecting veterans and the administration of
the Department, and Defendants have utilized such advice and recommendations.39 According to
public reports, the Council “is exerting sweeping influence on the VA from Mar-a-Lago.”40
39.

According to public reports, the Council “[s]poke with VA officials daily,”

“review[ed] all manner of policy and personnel decisions,” “bombarded VA officials with
demands,” and “prodded the VA to start new programs,” and “officials travelled to Mar-a-Lago
at taxpayer expense to hear [the Council’s] views.”41 Indeed, in a statement by Mr. Perlmutter,
Mr. Sherman, and Mr. Moskowitz, the Council admitted that “[s]ince late 2016, we have shared
our views and perspectives on a number of occasions with VA leadership.”42
40.

Officials within the Department have confirmed the extent of the Mar-a-Lago

Council’s influence. Discussing a ten-year project to reform the VA’s digital records system, one
Department official said, “We just had to make the Mar-a-Lago [Council] comfortable with the
deal. . . . They have someone’s ear. Power and influence are power and influence.”43 A former

39

See Arnsdorf, supra note 8.
Id.
41
Id.
42
Mar-a-Lago Council Statement, supra note 1.
43
Allen, supra note 37.
40

17

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Department official went further, saying “[e]verything needs to be run by [the Mar-a-Lago
Council]” because “[t]hey view themselves as making the decisions.”44
41.

Given that the Council has operated outside of public view, the full scope of its

influence on policy matters is unknown, except to Defendants. However, publicly available
information reveals that the Council is working to provide advice and recommendations with
regard to, at a minimum, the following:
a. Nomination of David Shulkin. On January 11, 2017, President Trump
nominated David Shulkin to serve as Secretary of the VA. The nomination
was made, in part, on the recommendation of the Mar-a-Lago Council.45
b. Veteran suicide. Beginning in February 2017, the Council convened a series
of conference calls with executives at Johnson & Johnson, leading to the
development of a public awareness campaign about veteran suicide.46 The
Council and the Department planned to promote the campaign by ringing the
closing bell at the New York Stock Exchange. According to public reports,
“[t]he event also turned into a promotional opportunity for Perlmutter’s
company.” Marvel, its parent company, Disney, and Johnson & Johnson
sponsored the event, where “Shulkin rang the closing bell standing near a
preening and flexing Captain America, with Spider-Man waving from the
trading pit, and Marvel swag was distributed to some of the attendees.”47

44

Arnsdorf, supra note 8 (quoting a former VA official).
Id.
46
Id.
47
Id.
45

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c. Mobile application for veterans. The Council recommended that Apple and
the VA develop an app for veterans to find nearby medical services. The
Council then facilitated a series of calls with senior Apple executives to
implement their recommendation. In one such meeting, on June 14, 2017,
Council members led a call regarding the recommendation in which,
according to Department records, the following individuals participated: the
Secretary of Veterans Affairs, the Acting Under-Secretary for Health, a Senior
Advisor to the Secretary, the Acting Assistant Secretary & Chief Information
Officer, a Senior Advisor to the Acting Under-Secretary for Health, the CEO
of Apple, the COO of Apple, the Director of Global Government for Apple,
the Vice President for Public Policy and Government Affairs of Apple, and
more than ten executives from medical institutions.48 VA officials reported
back to the Council to update members on progress. In one email, a senior
Department official told the Council, “I will update the tracker, and please do
let me know if this helps answers [sic] questions around Apple’s efforts or if
additional clarification is required.”49 Council member Marc Moskowitz
brought his son Aaron Moskowitz on to advise the VA on the project.
d. Medical device registry. On June 4, 2018, at the recommendation of Council
members, the VA organized a summit of experts on medical device registries
with the goal of building a national registry that notified patients of medical
device product recalls. Council members joined Department officials on

48
49

ProPublica Documents, supra note 16, at DS Perlmutter-6-Att-6_Redacted.
Arnsdorf, supra note 8.
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weekly conference calls to discuss organizing the “Medical Device Registry
Summit” and making a public commitment to build a registry at the VA.
During his remarks at the summit, then-acting Secretary Peter O’Rourke
thanked Council member Mr. Moskowitz for being one of the “driving forces”
behind the initiative.50 Leading up to the summit, SreyRam Kuy, a Senior
Advisor to the VA Secretary charged with organizing the summit, requested a
meeting with then-Secretary Shulkin to provide an “update on the Medical
Device Registry Summit/Bruce Moskowitz efforts.”51
e. Cerner contract. According to four former and current senior VA officials,
Council members played a significant role in recommending, and at some
points even directing, VA action on the transformation of the VA’s digital
records system, the biggest health information technology project in history.52
In June 2017, then-Secretary Shulkin awarded a major contract for work
related to the overhaul to Cerner Corp. However, due to Council member
concerns with the company, the agreement was delayed for months.53 During
that time, a team of investigators from VA’s Office of Information and
Technology were tasked with evaluating Council member concerns and were
even directed to look into the Cerner system Mr. Moskowitz used in his
personal business.54 The Council’s involvement in the project was so

50

Id.
ProPublica Documents, supra note 16, at DS-Moskowitz-7-1-Redacted.
52
Allen, supra note 37.
53
Id.
54
Id.
51

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pervasive that on February 27, 2018, then-Secretary Shulkin flew to Mar-aLago for the purpose of meeting with Mr. Perlmutter, Mr. Moskowitz, and
Mr. Sherman to “close the deal on the Cerner contract.”55
f. VA privatization. The Council has advised the Department to privatize
essential healthcare services the VA provides to veterans. For example, in an
email to then-Secretary Shulkin and other VA officials on September 18,
2017, the Council said,
We have been talking to Dr. Shulkin for many months about identifying the
existence of healthcare delivery issues at VA medical centers . . . . As an example,
we think that some of the VA hospitals are delivering some specialty healthcare
when they shouldn’t and when referrals to private facilities or other VA centers
would be a better option. Not every VA hospital has both the breadth and depth of
specialized medical expertise in every specialty, which then creates risk to the
patients and the system. One idea discussed was to institute a self-rating program,
but self-ratings are rarely of any practical use. Our solution is to make use of the
academic medical centers and medical trade groups, both of whom have offered
to send review teams to the VA hospitals to help in this effort. The purpose of this
email is to see if you know of any impediments to taking them up on this offer
and to get your thoughts in general about this approach.56
On September 24, 2017, then-Secretary Shulkin responded to the Council
recommendation, saying,
I agree with Ike and the team that measuring VA against private hospitals is
critical—so while [the Centers for Medicare and Medicaid Services] is not able to
deliver this for months we have now developed our own tool to do this—we are
fine tuning the model this week and can share it by [F]riday. If it does not get us
where we need to be then working quickly with an independent group would
make a great deal of sense.57
g. Evaluation of VA surgery programs. At the Council’s recommendation, the
VA developed a plan for the American College of Surgeons to evaluate the

55

Arnsdorf, supra note 8.
ProPublica Documents, supra note 16, at DS-Moskowitz-5-4_Redacted.
57
Id.
56

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surgery programs at several VA hospitals. In December 2017, after discussing
the idea with then-Secretary Shulkin, Mr. Sherman reported back to Michael
Zinner, a member of the American College of Surgeons’ board of regents. In
an email sent by Mr. Sherman to Mr. Zinner on December 6, 2017, Mr.
Sherman said, “[The VA Secretary] is ready to kick it off and is standing by
for me to set up a call with you, David Hoyt, me and him to do so.”58 After
Mr. Zimmer assured Mr. Sherman that he would “get working on this call,”
Mr. Sherman added several individuals to the email chain, including Mr.
Perlmutter and Mr. Moskowitz. When adding the Council members, Mr.
Sherman explained that he was “including my gang as a cc.”59 On February
14, 2018, then-Secretary Shulkin emailed a progress update on the project to
at least two Council members, telling the Council, “We’re getting close.”60
Several months later, on March 7, 2018, then-Secretary Shulkin advised his
staff to set up a conference call with the American College of Surgeons to
develop a contract for the work, telling him he wanted the project “to start
asap.”61
h. Tracking human tissue devices. On January 19, 2018, then-Secretary Shulkin
and at least five other senior VA officials attended a meeting with the
American Association of Tissue Banks (“AATB”) and the AATB Tissue
Policy Group. Following the meeting, the organizations sent then-Secretary
58

Id. at DS-Sherman-10-7_Redacted.
Id.
60
Id. at DocumentsReport2018-07-09-11.
61
Id.
59

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Shulkin a proposal to “partner with the VA” in developing “the development
of appropriate systems for tracking and tracing all devices, including human
tissue devices.”62 On February 2, 2018, then-Secretary Shulkin forwarded the
proposal to Council member Mr. Moskowitz for the Council’s
recommendation, saying “Bruce - what do you think of this?” Mr. Moskowitz
responded with a recommendation, to which then-Secretary Shulkin stated,
“Ok.”63
i. Firing of David Shulkin. Just as Mr. Shulkin’s tenure at the helm of the
Department began, in part, on the recommendation of the Mar-a-Lago
Council, it likewise came to an end once Mr. Shulkin fell out of favor with the
Council. According to three former Trump Administration officials, while
several factors contributed to Mr. Shulkin’s firing, it was his friction with the
Mar-a-Lago Council over the Cerner contract that ultimately led to President
Trump’s decision to remove the VA Secretary. On December 4, 2017, Jake
Leinenkugel, the White House Senior Advisor on veterans affairs, sent a
memo to a political appointee within the Department outlining “key items that
need to be addressed within the VA Leadership structure.”64 Among the items
Mr. Leinenkugel highlighted were to “[p]ut [Shulkin] on notice to exit” and
“[u]tilize outside team (Ike)” when considering options for replacing him. 65

62

Id.
Id.
64
Email from Jake Leinenkugel to Camilo J. Sandoval (Dec. 4, 2017),
https://assets.documentcloud.org/documents/4614204/Leinenkugel-Sandoval-Memo.pdf.
65
Arnsdorf, supra note 8 (emphasis added) (second alteration in the original).
63

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j. Mental Health. The Council provided input on the development of a mental
health initiative. On February 28, 2018, Department chief of staff Peter
O’Rourke responded to the Council’s recommendations related to the new
initiative, saying, “Received.” “I will begin a project plan and develop a
timeline for action.”66
42.

In addition to its actions, the Council’s own words, and the words of Trump

Administration officials, show that in holding the meetings and making the recommendations
detailed above, the Council operated as a group.
a. When Mr. Sherman was unable to participate in a Council meeting on
February 23, 2017, Mr. Moskowitz assured Council members that he would
“update [Mr. Sherman] after the call.”67
b. On September 7, 2017, Mr. Perlmutter sent an email to then-Secretary Shulkin
regarding a story he had been told about a veteran having trouble accessing
military records. With other Council members copied on the email, Mr.
Perlmutter stated, “we are making very good progress, but this is an excellent
reminder that we are still very far away from achieving our goals.”68
c. On September 24, 2017, then-Secretary Shulkin responded to a Council
recommendation saying, “I agree with Ike and the team that measuring VA
against private hospitals is critical.”69 “Ike” refers to Mr. Perlmutter; “the
team” refers to the Council.

66

ProPublica Documents, supra note 16, at Responsive-Docs_Redacted.
Id. at DS Sherman 2-3.
68
Id. at DocumentsReport2018-07-09-11-53-56_Redacted[2].
69
Id. at DS-Moskowitz-5-4_Redacted.
67

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d. On October 22, 2017, Mr. Perlmutter sent an email congratulating thenSecretary Shulkin for his interview on Fox News. With other Council
members copied on the email, Mr. Perlmutter stated, “That interview really
did a great service to what you (and we) are doing to improve the quality of
care for our veterans for the long term.”70
e. On February 14, 2018, then-Secretary Shulkin emailed the Council to update
members on progress regarding the implementation of a Council
recommendation. Mr. Shulkin said, “We’re getting close.”71
f. On February 24, 2018, then-Secretary Shulkin emailed Mr. Moskowitz to
forward a data-sharing proposal the Department received from several major
hospitals. Mr. Moskowitz replied to Mr. Shulkin, promising to “discuss with
everyone.”72
g. On February 28, 2018, shortly after Peter O’Rourke became Department chief
of staff, he emailed the Council—Mr. Perlmutter, Mr. Sherman, and Mr.
Moskowitz—saying, “Thank you for your support of the President, the VA,
and me as we work to make the VA great.” The Council replied to the email
and shared contact information for Council members with Mr. O’Rourke,
saying “please feel free to contact any of us at anytime . . . look forward to
achieving the goals discussed.”73

70

Id. at DocumentsReport2018-07-09_11-53-56_Redacted[2].
Id.
72
Id.
73
Id. at Responsive-Docs_Redacted.
71

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h. On February 28, 2018, Mr. Sherman responded to Mr. O’Rourke’s e-mail,
stating, “We are always excited to provide each of our thoughts to you and the
Secretary as you both more forward in making decisions on how to best run
and improve the veterans healthcare delivery system.”74
i. On April 21, 2018, in an email to then-acting Secretary Wilkie, Mr.
Moskowitz stated, “I am sure that I speak for the group, that both you and
Peter astounded all of us on how quickly and accurately you assessed the key
problems and more importantly the solutions that will be needed to finally
move the VA in the right direction.”75
j. In an April 21, 2018 email to then-acting Secretary Wilkie, Mr. Perlmutter
expressed, “For the first time in 1 1/2 years we feel everyone is on the same
page. . . . Again, please know we are available and want to help any possible
way 24/7.”76
k. Finally, in a statement issued jointly over July 18-20, 2018, Mr. Perlmutter,
Mr. Moskowitz, and Mr. Sherman detailed the Mar-a-Lago Council’s
influence and activities. The joint statement is worth quoting at length
(below). The statement’s use of collective pronouns (e.g., “we,” “our”),
without exception, and its descriptions of how the Council set about its
business, underscore what the above lists of actions and statements make
clear: that the Council operated as an advisory committee.

74

Id.
Id. at RE_[EXTERNAL] Meeting follow up_Redacted.
76
Id. at RE_[EXTERNAL] From & Ike Perlmutter_Redacted.
75

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Statement by Ike Perlmutter, Bruce Moskowitz and Marc Sherman
The three of us come from very different backgrounds, but we have long shared a
deep concern for the health of our veterans. When we saw an opportunity to assist
the Department of Veterans Affairs’s leadership in addressing some of the most
intractable problems of the VA, we considered it an honor and a privilege to do
so. After the President's election, we saw an opportunity to share our expertise in
organizational management and our personal relationships with healthcare experts
around the country to assist the VA as it undertook an aggressive reform of its
healthcare delivery and systems. We offered our counsel, and the advice of these
healthcare experts, to assist the President, Secretary and VA leadership in their
making the essential decisions—sometimes life or death—that affect our nation's
veterans. At all times, we offered our help and advice on a voluntary basis,
seeking nothing at all in return.
It was Mr. Perlmutter’s personal relationship with the President that allowed us
the opportunity to be of service. Since late 2016, we have shared our views and
perspectives on a number of occasions with VA leadership. For the most part,
those interactions were either to facilitate introductions to subject matter
healthcare and technology experts with whom we had relationships, or to discuss
healthcare delivery and healthcare quality challenges facing the agency and
therefore affecting our veterans. While we were always willing to share our
thoughts, we did not make or implement any type of policy, possess any authority
over agency decisions, or direct government officials to take any actions. That
was not our role, and we were at all times very well aware of that. We provided
our advice and suggestions so that members of the Administration could consider
them as they wished to make their own decisions on actions to be taken. To the
extent anyone thought our role was anything other than that, we don’t believe it
was the result of anything we said or did.
At no time was our volunteer assistance a secret. We were on emails and
conference calls with senior staff, and Secretary Shulkin referred on numerous
occasions to his discussions with outside experts. He specifically mentioned one
or more of us at public events covered by the media. We were also present at a
post-meeting White House press gaggle on VA-related issues. We are proud of
any contribution we have been able to make to improve the healthcare provided
to the fine men and women who are served by the VA. None of us has gained any
financial benefit from this volunteer effort, nor was that ever a consideration for
us. The only benefit we gained was the satisfaction of helping America's veterans
get the very best healthcare possible, in the most efficient and effective manner.
Since late 2016, we have shared our views and perspectives on various issues on a
number of occasions with VA leadership. For the most part, those interactions
were either to facilitate introductions to subject matter healthcare and technology
experts with whom we had relationships, or to discuss healthcare delivery and

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healthcare quality challenges facing the agency that affected America’s veterans.
. . . 77
DEFENDANTS ARE VIOLATING THE FACA AND HARMING PLAINTIFF
43.

As detailed above, the Mar-a-Lago Council is an advisory committee under the

FACA. The Council has an organized structure, a fixed membership, and a specific purpose. The
Council is comprised of at least three members—Mr. Perlmutter, Mr. Moskowitz, and Mr.
Sherman—who, under Mr. Perlmutter’s leadership, make recommendations and provide advice
to the Department and other federal officials. The Council’s aim is to influence how the
Department carries out its mission with respect to an ever-growing number of discrete goals and
projects.
44.

Nonetheless, Defendants and the Council have not complied with the FACA’s

requirements. The Council lacks a charter. Defendants have not published notice of the Council’s
meetings, and thereby have thwarted any attempts by Plaintiff and others to participate in those
meetings. Defendants have not made public the materials provided to or generated by the
Council. And Defendants and the Council have not kept minutes of the Council’s meetings, all in
violation of the FACA, and with harmful effects on Plaintiff and others.
45.

Plaintiff VoteVets has a distinct interest in the Administration’s policies towards

veterans, and in its efforts to privatize healthcare services for veterans in particular. VoteVets
believes the VA healthcare system should not, and must not, be privatized. On April 4, 2018,
VoteVets issued a statement criticizing the Administration’s attempts to transfer the healthcare
“system relied on by millions of American veterans into the hands of for-profit health groups.”
On March 5, 2018, in an effort to access information related to the Administration’s privatization
efforts, VoteVets submitted a Freedom of Information Act request to the VA. As relevant here,
77

Mar-a-Lago Council Statement, supra note 1.
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Plaintiff’s FOIA request sought records related to the role private individuals and proprivatization advocacy groups have played in influencing the Administration’s VA healthcare
policy. In particular, the request sought communications from the Department related the
President Trump’s firing of then-Secretary Shulkin and whether Mr. Shulkin's opposition to VA
privatization efforts contributed to his termination. The Department failed to adequately respond
to Plaintiff's FOIA request. As a result, Plaintiff was forced to file suit on April 4, 2018, to obtain
the requested information.
46.

VoteVets works to counter VA privatization efforts in a number of other ways as

well. VoteVets educates its supporters via email and social media about the issue and the
Administration’s privatization plans. VoteVets advocates at the federal level for laws and
policies that support and strengthen the continuation of a public VA healthcare system. VoteVets
also expends significant resources educating the broader public about the dangers of VA
privatization. For example, on September 14, 2017, VoteVets announced a $400,000 advertising
campaign across thirteen states to mobilize Americans to oppose the Administration’s
privatization efforts.
47.

Given VoteVets’ dedication to improving veterans policy and advocacy against

the privatization of VA services—and therefore, its keen interest in understanding and
uncovering the Mar-a-Lago Council’s activities, and desire to take part in the Council’s
business—Defendants’ violation of the FACA has harmed and will harm VoteVets in at least
two ways. First, by violating the public records requirements of the FACA, Defendants have
denied VoteVets its statutory right to review the Mar-a-Lago Council’s documents and meeting
minutes. Second, by violating the requirements of FACA, Defendants have deprived VoteVets of

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its statutory right to participate in the Mar-a-Lago Council’s meetings and represent its views to
the Council regarding, among other issues, the privatization of VA services.
CLAIM FOR RELIEF
Count One
(Violation of the FACA and the APA)
48.

Plaintiff repeats and incorporates by reference each of the foregoing allegations as

if fully set forth herein.
49.

The Mar-a-Lago Council is an advisory committee within the meaning of the

FACA because it is a “council . . . which is established or utilized by” Defendant the VA “in the
interest of obtaining advice or recommendations for the President or one or more agencies or
officers of the Federal Government.” 5 U.S.C. app. 2 § 3(2).
50.

By failing to file a charter for the Council, Defendants and the Council failed to

comply with the FACA’s non-discretionary requirement under 5 U.S.C. app. 2 § 9(c). Therefore,
under the APA, Defendants have unlawfully withheld or unreasonably delayed agency action, 5
U.S.C. § 706(1), and acted contrary to law, id. § 706(2)(A).
51.

By failing to publish notice of Council meetings in the Federal Register and by

failing to allow interested parties to attend those meetings, Defendants and the Council are
failing to comply with the FACA’s non-discretionary requirements under 5 U.S.C. app. 2
§ 10(a)(1)-(3). Therefore, under the APA, Defendants have unlawfully withheld or unreasonably
delayed agency action, 5 U.S.C. § 706(1), and acted contrary to law, id. § 706(2)(A).
52.

By failing to make available “the records reports, transcripts, minutes,

appendixes, working papers, drafts, studies, agenda, or other documents which were made
available to or prepared for or by” the Council, Defendants and the Council are failing to comply
with the FACA’s non-discretionary requirements under 5 U.S.C. app. 2 § 10(b). Therefore, under

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the APA, Defendants have unlawfully withheld or unreasonably delayed agency action, 5 U.S.C.
§ 706(1), and acted contrary to law, id. § 706(2)(A).
53.

By failing to “ke[ep]” “[d]etailed minutes” of all Council meetings, Defendants

and the Council are failing to comply with the FACA’s non-discretionary requirements under 5
U.S.C. app. 2 § 10(c). Therefore, under the APA, Defendants have unlawfully withheld or
unreasonably delayed agency action, 5 U.S.C. § 706(1), and acted contrary to law, id.
§ 706(2)(A).
54.

Defendants’ failure to comply with the FACA in relation to the Mar-a-Lago

Council is “final agency action for which there is no other adequate remedy in a court,” and
therefore is “subject to judicial review.” Id. § 704; see id. § 702.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that this Court:
1.

declare that Defendants’ creation and administration of the Mar-a-Lago Council

violates the FACA and the APA, and that the Council is therefore unlawful;
2.

enjoin Defendants from utilizing the Mar-a-Lago Council as an advisory

committee unless and until Defendants and the Council comply with the FACA;
3.

through the named Defendants, enjoin the Mar-a-Lago Council from meeting,

advising Defendants, and otherwise conducting Council business unless and until Defendants
and the Council comply with the FACA;
4.

order Defendants to file a charter for the Council;

5.

order Defendants to publish notice of the Council’s meetings in the Federal

Register;
6.

order Defendants to permit public participation at the Council’s meetings;

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7.

order Defendants to ensure that detailed minutes of the Council’s meetings are

8.

order Defendants to provide to Plaintiff a full and complete copy of all records,

kept;

reports, transcripts, minutes, appendices, working papers, drafts, studies, agendas, and other
documents that have been made available to, or prepared for or by, the Council;
9.

award Plaintiff its costs, attorneys’ fees, and other disbursements for this action;

10.

grant any other relief this Court deems appropriate.

and

Dated: August 16, 2018

Respectfully submitted,
/s/ Adam Grogg
Adam Grogg (D.C. Bar No. 1552438)
Karianne M. Jones (D.C. Bar No. 187783)
Javier M. Guzman (D.C. Bar No. 462679)
Democracy Forward Foundation
1333 H St. NW
Washington, DC 20005
(202) 448-9090
agrogg@democracyforward.org
kjones@democracyforward.org
jguzman@democracyforward.org
Counsel for Plaintiff

32