Case 1:18-cv-01925-TJK Document 8-1 Filed 11/16/18 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

VOTEVETS ACTION FUND,
Plaintiff,
v.

Case No. 18-1925 (TJK)

UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS, et al.,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
I.

II.

Statutory Background ......................................................................................................... 2
A.

The Federal Advisory Committee Act .................................................................... 2

B.

The Administrative Procedure Act .......................................................................... 3

This Lawsuit........................................................................................................................ 3

STANDARDS OF REVIEW .......................................................................................................... 5
ARGUMENT .................................................................................................................................. 6
I.

II.

The Complaint Should Be Dismissed Under Rule 12(b)(1) for Lack of Standing. ............ 6
A.

VoteVets Fails to Identify an Organizational Injury. ............................................... 7

B.

VoteVets’ Assertions of Procedural Violations Do Not Relieve It of
Demonstrating a Concrete Injury. ........................................................................... 9

C.

VoteVets Cannot Rely on Informational Injury Where It Has Not Requested
the Information It Seeks Nor Plausibly Alleged the Existence of a FACA
Committee. .............................................................................................................11

D.

VoteVets Has Not Shown Causation or Redressability. ........................................ 12

The Complaint Should Be Dismissed for Failure to State a Violation of FACA.............. 13
A.

The Complaint Does Not Plausibly Allege that Defendants “Established” a
FACA Committee................................................................................................. 13

B.

The Complaint Does not Plausibly Allege that Defendants “Utilized” the
Three Individuals as a FACA Committee. ............................................................ 19

CONCLUSION ............................................................................................................................. 23

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TABLE OF AUTHORITIES
CASES
*AAPS v. Clinton,
997 F.2d 898 (D.C. Cir. 1993)............................................................................................. 14, 16
Abdelfattah v. U.S. Dep’t of Homeland Sec.,
787 F.3d 524 (D.C. Cir. 2015)..................................................................................................... 5
ACLU v. Trump,
266 F. Supp. 3d 133 (D.D.C. 2017) ............................................................................................ 3
Aluminum Co. of Am. v. Nat'l Marine Fisheries Serv.,
92 F.3d 902 (9th Cir. 1996) ................................................................................................. 14, 20
Arista Records LLC v. DOE,
604 F.3d 110 (2d Cir. 2010) ...................................................................................................... 22
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................................. 5, 15
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................... 5
Browning v. Clinton,
292 F.3d 235 (D.C. Cir. 2002)................................................................................................. 5, 6
*Byrd v. EPA,
174 F.3d 239 (D.C. Cir. 1999)................................................................................. 13, 14, 17, 20
Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Fed. Deposit Ins. Corp.,
No. 14-CV-953 (GK), 2016 WL 7376847 (D.D.C. Dec. 19, 2016) ........................................ 8, 9
Ctr. for Law & Educ. v. Dep’t of Educ.,
396 F.3d 1152 (D.C. Cir. 2005) ................................................................................................... 9
Edwards v. Aurora Loan Servs., LLC,
791 F. Supp. 2d 144 (D.D.C. 2011) ............................................................................................ 5
Envtl. Working Grp. v. FDA,
No. 1:16-CV-2435-TNM, 2018 WL 1384125 (D.D.C. Mar. 19, 2018)...................................... 7
*Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905 (D.C. Cir. 2015)............................................................................................. 7, 8, 9

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Food Chem. News v. Young,
900 F.2d 328 (D.C. Cir. 1990)............................................................................................. 17, 20
Freedom Watch, Inc. v. Obama,
807 F. Supp. 2d 28 (D.D.C. 2011) .............................................................................................. 3
Freedom Watch, Inc. v. Obama,
930 F. Supp. 2d 98 (D.D.C. 2013) ............................................................................................ 16
Friends of Animals v. Jewell,
828 F.3d 989 (D.C. Cir. 2016)..............................................................................................11, 12
Grand Lodge of Fraternal Order of Police v. Ashcroft,
185 F. Supp. 2d 9 (D.D.C. 2001) ................................................................................................ 5
Heckler v. Chaney,
470 U.S. 821 (1985) .................................................................................................................... 3
Huron Envt’l Activist League v. EPA,
917 F. Supp. 34 (D.D.C. 1996) ........................................................................................... 19, 21
In re Cheney,
406 F.3d 723 (D.C. Cir. 2005)................................................................................................... 16
Judicial Watch, Inc. v. U.S. Dep’t of Commerce,
736 F. Supp. 2d 24 (D.D.C. 2010) ............................................................................................ 21
Kaempe v. Myers,
367 F.3d 958 (D.C. Cir. 2004)..................................................................................................... 6
Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375 (1994) .................................................................................................................... 5
Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory Comm’n on Election
Integrity,
No. 17-1354, 2017 WL 3028832 (D.D.C. July 18, 2017)......................................................... 12
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .................................................................................................................... 6
Metcalf v. Nat’l Petroleum Council,
553 F.2d 176 (D.C. Cir. 1977)................................................................................................... 10
Nader v. Baroody,
396 F. Supp. 1231 (D.D.C. 1975) ....................................................................................... 14, 19

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Nat. Res. Def. Council, Inc. v. Herrington,
637 F. Supp. 116 (D.D.C. 1986) ................................................................................................. 1
Nat’l Ass’n of Home Builders v. EPA,
786 F.3d 34 (D.C. Cir. 2015)....................................................................................................... 6
New England Anti-Vivisection Soc’y v. U.S. Fish & Wildlife Service,
208 F. Supp. 3d 142 (D.D.C. 2016) ............................................................................................ 8
People for Ethical Treatment of Animals, Inc. v. Barshefsky,
925 F. Supp. 844 (D.D.C. 1996) ............................................................................................... 17
People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric.,
797 F.3d 1087 (D.C. Cir. 2015)................................................................................................... 7
Physicians Comm. for Responsible Med. v. Horinko,
285 F. Supp. 2d 430 (S.D.N.Y. 2003) ..................................................................... 13, 14, 20, 21
*Public Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 (1989) ........................................................................................................... passim
*R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin.,
810 F.3d 827 (D.C. Cir. 2016)............................................................................................... 9, 10
Sec. Indus. & Fin. Markets Ass’n v. U.S. Commodity Futures Trading Comm’n,
67 F. Supp. 3d 373 (D.D.C. 2014) .......................................................................................... 6, 7
Sofamor Danek Grp., Inc. v. Gaus,
61 F.3d 929 (D.C. Cir. 1995)..................................................................................................... 21
Spokeo, Inc. v. Robins,
136 S.Ct. 1540 (2016) ................................................................................................................. 6
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) .................................................................................................................... 9
Turlock Irrigation Dist. v. FERC,
786 F.3d 18 (D.C. Cir. 2015)....................................................................................................... 7
Warth v. Seldin,
422 U.S. 490 (1975) .................................................................................................................... 6
Wash. Legal Foundation v. U.S. Sentencing Comm’n,
17 F.3d 1446 (D.C. Cir. 1994)............................................................................................. 20, 21

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*Washington Toxics Coal. v. EPA,
357 F. Supp. 2d 1266 (W.D. Wash. 2004) ........................................................................... 15, 22
STATUTES
5 U.S.C. App. 2 § 2 ......................................................................................................................... 2
5 U.S.C. App. 2 § 3 ......................................................................................................... 2, 3, 13, 19
5 U.S.C. App. 2 § 5 ......................................................................................................................... 2
5 U.S.C. App. 2 § 7 ......................................................................................................................... 3
5 U.S.C. App. 2 § 9 ......................................................................................................................... 2
5 U.S.C. App. 2 § 10 ................................................................................................................. 2, 12
5 U.S.C. § 704 ................................................................................................................................. 3
5 U.S.C. §§ 701–706 ....................................................................................................................... 3
REGULATIONS
41 C.F.R. part 102-3 ........................................................................................................................ 3
41 C.F.R. § 102-3.25 ..................................................................................................................... 20
41 C.F.R. § 102-3.40 ............................................................................................................... 16, 17
RULES
Fed. R. Civ. P. 10............................................................................................................................. 6
Fed. R. Civ. P. 12....................................................................................................................... 5, 22
OTHER AUTHORITIES
5A The Late Charles Alan Wright et al., Federal Practice and Procedure § 1327 (3d ed.) ............. 6

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INTRODUCTION
Confusing theoretical possibility with legal sufficiency, Plaintiff’s lawsuit is based on the
thoroughly discredited premise that the Federal Advisory Committee Act (“FACA”) applies to
“every formal and informal consultation between the President or an Executive agency and a group
rendering advice.” Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 453 (1989). Rejecting
that interpretation as one that would “stifle much of the daily intercourse between the government
and the rest of the nation,” Nat. Res. Def. Council, Inc. v. Herrington, 637 F. Supp. 116, 118-19
(D.D.C. 1986), courts have long held that FACA applies only to committees established, managed,
or controlled by the executive branch. See, e.g., Public Citizen, 491 U.S. at 457-64.
The Complaint cannot plausibly survive that standard. Plaintiff does not allege that the
three individuals it contends comprised a FACA committee were brought together by the
Defendants in this action (collectively, the “Department” or the “VA”); that they took any action
as a group; that they voted, reached consensus, or prepared a report; or that they were subject to
management or control by the Department. Rather, the Complaint itself paints a picture of the
three individuals voluntarily offering their assistance to the Department. While it is an agency’s
job to make sure that its committees comply with FACA’s requirements, that is only so if the
agency establishes, manages, or controls the committee. Because the unstructured and informal
meetings among the three individuals alleged in the Complaint do not amount to action by an
advisory committee within the meaning of FACA, Plaintiff can demonstrate neither standing to
bring its claims nor a plausible claim to relief. The case should therefore be dismissed.

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BACKGROUND
I.

Statutory Background
A.

The Federal Advisory Committee Act

Congress enacted FACA in 1972 to reduce the growing cost of unnecessary blue ribbon
commissions, advisory panels, and honorary boards set up by the government to advise the
President and federal agencies. Public Citizen, 491 U.S. at 453. The statute seeks to eliminate
federal advisory committees that have outgrown their usefulness and impose uniform procedures
on those that are indispensable, thereby ensuring that Congress and the public remain “apprised of
their existence, activities, and cost.” Id. at 446 (citation and internal quotation marks omitted); see
also 5 U.S.C. App. 2 § 2.
FACA defines an “advisory committee” as “any committee, board, commission, council,
conference, panel, task force, or other similar group . . . which is . . . established or utilized by the
President, or . . . 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.” 5 U.S.C. app. 2
§ 3(2). Groups that meet this definition must comply with an array of procedural requirements.
Among others, they must file a charter prior to commencing their first meeting, 5 U.S.C. app. 2
§ 9(c); announce their upcoming meetings in the Federal Register and hold them open to the public
unless an exception applies, id. § 10(a)(1)-(2); keep detailed minutes of each meeting, id. § 10(c);
and publicly disclose their “records, reports, transcripts, minutes, appendixes, working papers,
drafts, studies, agenda, or other documents[.]” Id. § 10(b). In addition, 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).

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FACA authorizes the General Services Administration (“GSA”) to promulgate
administrative guidelines applicable to federal advisory committees. Id. §§ 3(1), 7(c). GSA’s
FACA-implementing regulations are entitled “Federal Advisory Committee Management” and
codified, as amended, at 41 C.F.R. part 102-3. These regulations “do not necessarily carry the
force of law, but they are at very least instructive because the GSA is ‘the agency responsible for
administering FACA[.]’” ACLU v. Trump, 266 F. Supp. 3d 133, 140 (D.D.C. 2017) (quoting Pub.
Citizen, 491 U.S. at 465 n.12).
B.

The Administrative Procedure Act

The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, establishes a waiver of
sovereign immunity and a cause of action for injunctive or declaratory relief for parties “suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency action within
the meaning of a relevant statute.” Id. § 702; see also Heckler v. Chaney, 470 U.S. 821, 828
(1985). These provisions apply only to “[a]gency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704 (emphasis
added); see also id. § 701(b)(1). The APA does not provide a cause of action for directly suing an
advisory committee because an “entity cannot be at once both an advisory committee and an
agency.” Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 33 (D.D.C. 2011).
II.

This Lawsuit
On August 16, 2017, Plaintiff VoteVets Action Fund (“Plaintiff” or “VoteVets”), a not-for-

profit organization engaged in advocacy regarding issues affecting veterans, filed this lawsuit
against the Department of Veteran Affairs and VA Secretary Robert Wilkie. Compl. ¶ 10. The
Complaint asserts a single claim alleging that the Department violated FACA by soliciting advice
and following recommendations from three individuals—Ike Perlmutter, Dr. Bruce Moskowitz,

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and Max Sherman (collectively, the “Three Individuals”)—without complying with FACA’s
procedural and disclosure requirements. See generally Compl. & id. ¶¶ 48-54. VoteVets claims
that the Three Individuals are each members of President Trump’s social club, Mar-a-Lago in Palm
Beach, Florida and that they constitute a FACA committee because they offered advice to the
Department and conveyed a collective objective to “improve the quality of care for our veterans
for the long term.” Compl. ¶ 42(d).
For example, VoteVets asserts that in December 2016, the Three Individuals convened a
group of healthcare executives to “brainstorm[] [with then-President-elect Trump] on how to
improve and reform” the Department. Compl. ¶ 35(a). VoteVets further alleges that, after
President Trump took office, the Three Individuals participated in telephone conversations and
miscellaneous meetings with Department officials or pertaining to Department affairs, such as a
tour of a VA hospital, phone calls with representatives from the private sector, and calls with the
contracting team responsible for implementing a project to reform the VA’s digital records system.
Compl. ¶ 35. During this time, the Three Individuals are alleged to have provided advice on a
wide array of topics, including the nomination and firing of former-Secretary David Shulkin,
veteran suicide, a mobile application, a medical device registry, a VA contract, options for
evaluating the Department’s surgery programs, tracking of human tissue devices, and mental
health. Compl. ¶ 35.
VoteVets asserts that the Three Individuals’ provision of advice to the VA is improper
because it was provided “without being subjected to [FACA’s] transparency requirements[.]”
Compl. ¶ 1. VoteVets seeks, among other requested relief, an order requiring the Three Individuals
to open their meetings and records to the public and “enjoin[ing] the [Three Individuals] from

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meeting, advising Defendants, and otherwise conducting [their] business unless and until
Defendants . . . comply with the FACA.” Compl. at Prayer for Relief ¶¶ 3, 6-8.
STANDARDS OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a federal
court’s jurisdiction over the subject matter of the complaint. The plaintiff bears the burden of
establishing that the court has the requisite subject matter jurisdiction to grant the relief requested.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In deciding whether that
burden has been met at the pleading stage, a court generally may presume the truth of any wellpled factual allegations in the complaint but need not and should not accept “naked assertions
devoid of further factual enhancement.” Edwards v. Aurora Loan Servs., LLC, 791 F. Supp. 2d
144, 149-50 (D.D.C. 2011) (citations omitted). A plaintiff’s allegations of jurisdiction should be
closely scrutinized because a court has “an affirmative obligation to ensure that it is acting within
the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft,
185 F. Supp. 2d 9, 13 (D.D.C. 2001) (citations omitted).
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the
complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This standard is not met by “labels and conclusions,” Twombly, 550 U.S. at 555; rather,
a plaintiff must plead specific “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Abdelfattah v. U.S. Dep’t of
Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015) (quoting Iqbal, 556 U.S. at 678). In deciding
the motion, a court generally must accept the well-pled factual allegations as true and any

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reasonable inferences drawn from those allegations but not inferences that are “unsupported by the
facts set out in the complaint” or “legal conclusions cast in the form of factual allegations.”
Browning, 292 F.3d at 242. The court may independently consider any materials incorporated by
reference in the complaint that are integral to the plaintiff’s claims. See Fed. R. Civ. P. 10(c);
Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); see also 5A The Late Charles Alan Wright
et al., Federal Practice and Procedure § 1327 (3d ed.) (“The district court obviously is not bound
to accept the pleader’s allegations as to the effect of [incorporated materials], but can
independently examine the document[s] and form its own conclusions[.]”).
ARGUMENT
I.

The Complaint Should Be Dismissed Under Rule 12(b)(1) for Lack of Standing.
A showing of standing is a “threshold question in every federal case.” Warth v. Seldin, 422

U.S. 490, 498 (1975). The “irreducible constitutional minimum” of standing requires a plaintiff
to demonstrate an injury-in-fact that is: (1) concrete and particularized, and actual or imminent,
not conjectural or hypothetical, (2) fairly traceable to the challenged conduct of the defendant, and
(3) likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560-61 (1992). At the pleading stage, “the plaintiff must ‘clearly . . . allege facts demonstrating’
each element.” Spokeo, 136 S. Ct. at 1547 (citing Warth, 422 U.S. at 518).
An organizational plaintiff may satisfy these elements either through its own organizational
injury or, under the doctrine of “associational standing,” by showing that at least one of its
members satisfies the injury-in-fact, causation, and redressability requirements. Nat’l Ass’n of
Home Builders v. EPA., 786 F.3d 34, 40 (D.C. Cir. 2015). However, to invoke associational
standing, a plaintiff “bear[s] the burden of specifically identifying at least one ‘member [who] had
or would suffer harm’ from each challenged agency action.” Sec. Indus. & Fin. Markets Ass’n v.

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U.S. Commodity Futures Trading Comm’n, 67 F. Supp. 3d 373, 400 (D.D.C. 2014) (citation
omitted). VoteVets has not done so and thus appears to assert standing only on its own behalf.
A.

VoteVets Fails to Identify an Organizational Injury.

The D.C. Circuit has explained that an organizational plaintiff asserting standing on its own
behalf must demonstrate, first, a concrete injury to its interests, and second, that it expended
organizational resources to counteract that injury. See, e.g., Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 919 (D.C. Cir. 2015). To satisfy the first element of this standard, an organization
cannot rely on “a mere setback to [its] abstract social interests” but rather must allege a “‘concrete
and demonstrable injury to [its] activities.’” People for the Ethical Treatment of Animals v. U.S.
Dep’t of Agric., 797 F.3d 1087, 1093 (D.C. Cir. 2015) (“PETA”) (emphasis added, citations and
quotation marks omitted).

Stated otherwise, the organization may not rest on an alleged

impairment of its policy goals but must show that the defendant’s actions demonstrably harmed its
“daily operations” or its “ability to provide services.” Food & Water Watch, 808 F.3d at 919
(citations and internal quotation marks omitted); see also Turlock Irrigation Dist. v. FERC, 786
F.3d 18, 24 (D.C. Cir. 2015) (“[A]n organization must allege that the defendant’s conduct
‘perceptibly impaired’ [its] ability to provide services.”); Envtl. Working Grp. v. FDA, No. 1:16CV-2435-TNM, 2018 WL 1384125, at *4 & n.4 (D.D.C. Mar. 19, 2018) (organization must
establish “‘inhibition of [its] daily operations” or “ongoing work”).
VoteVets’ allegations are wholly insufficient to meet this standard. With respect to the first
requirement—concrete injury to organizational interests—VoteVets states only that it “has a
distinct interest in the Administration’s policies towards veterans,” and in particular, expends
resources advocating on behalf of its “belie[f] [that] the VA healthcare system should not, and must
not, be privatized.” Compl. ¶¶ 45-46. These allegations merely describe VoteVets’ issue advocacy

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on the subject of privatization; they do not demonstrate, or even suggest, that VoteVets’
organizational activities are impaired because the Three Individuals offered advice to the
Department without complying with FACA’s procedural requirements. See Food & Water Watch,
808 F.3d at 919 (“an organization’s use of resources for . . . advocacy is not sufficient to give rise
to an Article III injury”). Indeed, this would be true even if VoteVets disagreed with a specific
policy recommendation offered by the Three Individuals and adopted by the Department, which
VoteVets has not alleged. See, e.g., New England Anti-Vivisection Soc’y, 208 F. Supp. 3d at 166
(“complaining that the organization’s ultimate goal has been made more difficult is not sufficient”).
VoteVets also has not demonstrated that it has “expended resources to counteract” any
specific harm resulting from the alleged FACA violations. Although it alleges that it submitted a
Freedom of Information Act (“FOIA”) request for records regarding the role of “private individuals
and pro-privatization advocacy groups . . . in influencing the . . . VA healthcare policy[,]” Compl.
¶ 45, this request appears to be simply another component of VoteVets’ anti-privatization advocacy.
There is nothing to suggest that the request was made to counteract any impairment to VoteVets
activities resulting from the specific activities of the Three Individuals or that, if the Three
Individuals had opened their records and meetings to the public, VoteVets would not have made
the request anyway. Indeed, the ProPublica article (the “ProPublica Article”) on which VoteVets
relies for the great majority of its factual allegations, and incorporates by reference in the
Complaint, notes that “more private healthcare to vets was a signature promise of Trump’s
campaign” long before he “decided who should lead [that] effort.” Ex. A at 4. Thus, VoteVets
would presumably be seeking documents regarding the privatization efforts of the Department
regardless of the activities of the Three Individuals. See Cmty. Fin. Servs. Ass’n of Am., Ltd. v.
Fed. Deposit Ins. Corp., No. 14-CV-953 (GK), 2016 WL 7376847, at *11 (D.D.C. Dec. 19, 2016)

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(holding that “an organization does not suffer an injury in fact . . . unless [the agency’s action]
subjects the organization to operational costs beyond those normally expended” (emphasis added,
citing Food & Water Watch, 808 F.3d at 920). VoteVets therefore has demonstrated neither a
concrete injury resulting from the FACA violations it alleges, nor that it expended resources to
counteract any such injury, as required to make out a claim of organizational standing in this
Circuit.
B.

VoteVets’ Assertions of Procedural Violations Do Not Relieve It of
Demonstrating a Concrete Injury.

The standing analysis is not different simply because VoteVets has asserted a violation of
procedural rights under FACA. See Compl. ¶ 47 (alleging denial of VoteVets’ purported “statutory
right to review . . . documents and meeting minutes” and “participate in . . . meetings”). The D.C.
Circuit has made clear that alleged procedural injuries do not themselves suffice for standing;
rather, a plaintiff must demonstrate that the procedural violation “has resulted in an invasion of
[the organization’s] concrete and particularized interest.” Ctr. for Law & Educ. v. Dep’t of Educ.,
396 F.3d 1152, 1159-62 (D.C. Cir. 2005); see also Summers v. Earth Island Inst., 555 U.S. 488,
496 (2009) (“deprivation of a procedural right without some concrete interest that is affected by
the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”). The
D.C. Circuit recently applied this principle in a FACA case to hold that the plaintiff lacked standing
to challenge the composition of a FACA committee because it failed to identify a “distinct risk to
a particularized interest” resulting from the alleged FACA violation. R.J. Reynolds Tobacco Co.
v. U.S. Food & Drug Admin., 810 F.3d 827, 829 (D.C. Cir. 2016). The D.C. Circuit noted that
although the advisory committee had submitted a report to the agency, the agency had not yet
taken final action based on that report; therefore, the procedural violation alleged by the plaintiff

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“by no means rendered the risk of eventual adverse [agency] action substantially probable or
imminent.” Id. at 830.
This holding applies with even greater force to VoteVets’ claims because VoteVets fails to
identify any specific policy that was even formally proposed, much less adopted, by the
Department based on the advice or recommendations of the Three Individuals. While VoteVets
points to several initiatives discussed by the Three Individuals, such as a meeting with Johnson &
Johnson regarding veteran suicide, calls with Apple executives about a mobile application for
veterans, conversations with the American College of Surgeons (“ACS”) about evaluating VA
surgery programs, and a meeting with the American Association of Tissue Banks about tracking
medical devices, it cites no facts suggesting that these discussions ever ripened into proposals for
specific agency action. Indeed, the ProPublica Article states that the Department rejected a
proposal by Mr. Perlmutter to use private industry groups to evaluate healthcare delivery and
“clashed” with the Three Individuals “over how to improve the VA’s electronic record-keeping
software.” Ex. A at 9. ProPublica also reports that discussions with ACS “stalled after [thenSecretary] Shulkin was fired” and that the “VA finally killed the [mobile application] project
because Moskowitz was the only one who supported it.” Id. at 6-7. VoteVets cannot stake a claim
of Article III injury based on informal input regarding nascent proposals that never developed into
specific departmental action. RJ Reynolds, 810 F.3d at 832; Metcalf v. Nat’l Petroleum Council,
553 F.2d 176, 184, 188 (holding that plaintiff lacked standing to challenge composition of FACA
committee where, among other things, there was “no allegation that [the agency] took action based
on” a committee recommendation).1

VoteVets does allege that the Three Individuals were instrumental in the nomination and
subsequent “firing” of former-Secretary David Shulkin, Compl. ¶¶ 41(a) & (i), but such actions
were those of the President, not the Department. Moreover, VoteVets has not alleged that either
1

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C.

VoteVets Cannot Rely on Informational Injury Where It Has Not Requested
the Information It Seeks Nor Plausibly Alleged the Existence of a FACA
Committee.

VoteVets also does not state a claim of “informational standing.” To establish such a theory,
a plaintiff must show that “(1) it has been deprived of information that, on its interpretation, a
statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied
access to that information, the type of harm Congress sought to prevent by requiring disclosure.”
Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). A plaintiff asserting such a
theory in a FACA case must demonstrate that it “has specifically requested, and been refused” the
information that it seeks through its lawsuit. Public Citizen, 491 U.S. at 449; see also id. at 450
(noting that other citizens might make the same complaint “after unsuccessfully demanding
disclosure under FACA” (emphasis added)); Friends of Animals, 828 F.3d at 992 (plaintiff must
show that it “seeks and is denied specific agency records’” (emphasis added; citation, brackets,
and quotation marks omitted)). VoteVets satisfies none of these requirements.
First, VoteVets does not claim that it ever “requested and [was] refused” any specific
information to which it claims an entitlement under FACA. Public Citizen, 491 U.S. at 449.
Although VoteVets alleges that it requested “records related to the role private individuals and proprivatization advocacy groups have played in influencing the Administration’s VA healthcare
policy” and records related to the “firing of then-Secretary Shulkin,” Compl. ¶ 45, VoteVets does
not claim that it requested and was refused the documents it seeks in this case: namely, “records,
reports, transcripts, minutes, appendices, working papers, drafts, studies, agendas, and other
documents that have been made available to, or prepared for or by, the [Three Individuals].”

the initial nomination of former Secretary Shulkin or his subsequent firing specifically advanced
any privatization agenda to the detriment of VoteVets.
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Compl. at Prayer for Relief ¶¶ 7-8. Axiomatically, if no such records exist, or if VoteVets were to
request such information and the Department were to provide all such records it possesses,
VoteVets would not have suffered any informational injury.

That is why VoteVets cannot

adequately allege an informational injury based on records that it has never even requested.
VoteVets also has not plausibly alleged that it was deprived of information that, on its
interpretation, FACA required the Department to disclose. Although a court must generally assume
that a plaintiff’s “view of the law wins the day” for purposes of informational standing, Lawyers’
Comm. for Civil Rights Under Law v. Presidential Advisory Comm’n on Election Integrity, No.
17-1354, 2017 WL 3028832, at *6 (D.D.C. July 18, 2017), the plausibility requirements of
Twombly and Iqbal continue to apply. Thus, in Friends of Animals, the D.C. Circuit did not adopt
the plaintiff’s implausible legal theory but instead held that the plaintiff lacked informational
standing because, under the statutory framework at issue, no disclosure obligation was then in
effect. 828 F.3d at 992. Rather, the prerequisite steps necessary to trigger a disclosure obligation
under the applicable statute had not yet occurred. Id. Similarly here, FACA does not impose any
disclosure requirements unless and until a FACA “advisory committee” comes into existence. See
5 U.S.C. app. 2 § 10(b). As discussed in Section II infra, VoteVets fails to plausibly allege the
existence of such a committee, and therefore it may not invoke informational standing.
D.

VoteVets Has Not Shown Causation or Redressability.

VoteVets also has not satisfied the second and third prongs of standing. Any injury that
VoteVets might identify cannot be deemed fairly traceable to the Department when the Complaint
provides no factual support to suggest that a “Mar-a-Lago Council” ever existed within the
meaning of FACA. And any alleged “injury” is not redressable because the Court cannot issue an

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order that enjoins the meeting, or orders the disclosure of records, of private individuals that are
not a FACA committee and are not parties to this case. See Compl. at Prayer for Relief.
For all of the foregoing reasons, VoteVets fails to establish Article III standing to bring this
case.
II.

The Complaint Should Be Dismissed for Failure to State a Violation of FACA.
The Complaint also should be dismissed because it fails plausibly to allege the existence

of an advisory committee subject to FACA. Contrary to Plaintiff’s suggestion, the requirements
of FACA do not apply to any group that offers advice or exerts “influence” over federal agencies;
they apply only to advisory committees “established” or “utilized” by an agency or the President.
5 U.S.C. app. 2 § 3(2). These terms have been construed exceedingly narrowly. In Public Citizen,
the Supreme Court observed that “[r]ead unqualifiedly,” FACA “would extend . . . to any group of
two or more persons, or at least any formal organization, from which the President or an Executive
agency seeks advice[,]” a result the Supreme Court determined was “absurd” and possibly
unconstitutional.

491 U.S. at 453-54.

Thus, the Court “squarely rejected an expansive

interpretation of the [statute],” and instead interpreted the terms “‘established’ and ‘utilized’
narrowly to prevent FACA from sweeping more broadly than the Congress intended.” Byrd v.
EPA, 174 F.3d 239, 245 (D.C. Cir. 1999) (citing Public Citizen, 491 U.S. at 452). The Complaint
fails as a matter of law because it presses the interpretation “squarely rejected” in Public Citizen
and in legions of cases since.
A.

The Complaint Does Not Plausibly Allege that Defendants “Established” a
FACA Committee.

“[A]n advisory panel is ‘established’ by an agency only if it is actually formed by the
agency.” Byrd, 174 F.3d at 245; accord Physicians Comm. for Responsible Med. v. Horinko, 285
F. Supp. 2d 430, 445 (S.D.N.Y. 2003) (“Physicians Comm.”) (citing cases). This requirement
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means what it says: communications and “collaboration” between an agency and a group is not
enough to find that an agency “actually formed” an advisory committee. See Physicians Comm.,
285 F. Supp. 2d at 445-46 (being informed of efforts and attending certain meetings is insufficient;
agency must be the “driving force behind” and “exert[] control over who attend[s] and what [is]
discussed” by a committee). Thus, a FACA committee does not come into existence simply
because certain individuals meet with “a changing slate of federal officials and private sector
groups” for the “purpose of exchanging views on a variety of subjects.” Ass’n of Am. Physicians
and Surgeons, Inc. v. Clinton, 997 F.2d 898, 914 (D.C. Cir. 1993) (“AAPS”) (citing Nader v.
Baroody, 396 F. Supp. 1231, 1234 (D.D.C. 1975)). Nor is a FACA committee “established” by an
agency simply because private individuals attend meetings with federal officials on a specified
topic. See Aluminum Co. of Am. v. Nat’l Marine Fisheries Serv., 92 F.3d 902, 906 (9th Cir. 1996)
(“Alcoa”) (holding that a series of meetings attended by a variety of stakeholders, including federal
officials, regarding how an agency should comply with a court’s ruling was not an advisory
committee “established” by the government). Rather, “[i]n order to implicate FACA, the President,
or his subordinates, must create an advisory group that has, in large measure, an organized
structure, a fixed membership, and a specific purpose.” AAPS, 997 F.2d at 914 (emphasis added).
And because “an important factor in determining the presence of an advisory committee [is] the
formality and structure of the group[,]” the D.C. Circuit has observed that “it is a rare case when a
court holds that a particular group is a FACA advisory committee over the objection of the
executive branch.” Id.
Here, the Complaint fails to plead any specific facts indicating that a FACA committee
consisting of the Three Individuals was “actually formed” by the Department. Byrd, 174 F.3d at
245. Instead, in the single paragraph related to the formation of the purported “Mar-a-Lago-

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Council,” the Complaint uses the passive voice, alleging that “[i]n January 2017, the Mar-a-Lago
Council was established.” Compl. ¶¶ 27; see also id. ¶ 49 (pleading in conclusory terms that the
Three Individuals operated as a “‘council . . . established or utilized by’ Defendant the VA”). Such
conclusory assertions, bereft of any detail, plainly do not satisfy VoteVets’ burden to allege facts
plausibly demonstrating that the Department established a FACA committee. See Iqbal, 556 U.S.
at 678 (rejecting “naked assertion[s] devoid of ‘further factual enhancement’”); Washington Toxics
Coal., 357 F. Supp. 2d at 1273 (rejecting allegation that task force was “established” by an agency
where plaintiffs failed to “allege[] facts or point[] to evidence to substantiate their conclusory
allegation”).
Instead of pleading facts to support its contention that the Department “established” a
“Mar-a-Lago Council,” VoteVets includes footnotes to two news articles, suggesting that the
support for its assertions lies there. Compl. ¶¶ 27-28 & n.7-8. However, even if it were proper for
VoteVets to support a conclusory allegation with an unadorned citation to outside materials, neither
of the cited articles plausibly suggests that the Department established a “Mar-a-Lago Council.”
The first, a CNBC transcript of a news conference on January 11, 2017, Compl. ¶ 27 n.7, simply
contains a transcript of a press conference given by then-President-elect Trump in which he stated
that “[w]e’re going to be talking to a few people . . . to help” with veterans affairs and “we’re going
to set up a group” of “some of the great hospitals of the world . . . like the Cleveland Clinic [and]
the Mayo Clinic,” along with “their great doctors” and that “Ike Perlmutter has been very, very
involved[.]” Ex. B at 3-4. The transcript does not so much as mention Mr. Sherman or Dr.
Moskowitz, nor does it specify what Mr. Perlmutter was “very, very involved” in or how. Nor
does it say anything about the Department soliciting Mr. Perlmutter to help with veterans’ affairs,

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which is not surprising given that these comments were made before the President and his
appointees were even sworn into office.2
More fundamentally, merely soliciting private sector viewpoints—even in a group
format—does not give rise to a FACA committee. Instead, to implicate FACA, a committee must
have an “organized structure, a fixed membership, and a specific purpose,” and be assembled by
the government to render advice “as a group, and not as a collection of individuals.” AAPS, 997
F.2d at 914 (emphasis in original); accord In re Cheney, 406 F.3d at 730-31 (holding that groups
were not subject to FACA where their meetings did not involve “any effort to achieve consensus”
but merely “collect[ed] individual views”); Freedom Watch, Inc. v. Obama, 930 F. Supp. 2d 98,
101 (D.D.C. 2013) (noting that “where the President or an agency seeks to provide a mechanism
and sounding board to test the pulse of the country by conferring directly or indirectly with widely
disparate special interest groups and encourage an exchange of views, the resulting meetings are
not subjected to the requirements of the FACA” (citation, quotation marks, ellipses and brackets
omitted), aff’d, 559 F. App’x 1 (D.C. Cir. 2014); see also 41 C.F.R. § 102-3.40(e) (a group
“assembled to provide individual advice” is not a committee subject to FACA). Thus, while the
President-elect’s statement may indicate that he asked one of the Three Individuals—Mr.
Perlmutter—and private hospitals and doctors to advise on certain unspecified matters, it hardly
suggests that the Department convened Mr. Perlmutter, Mr. Sherman, and Dr. Moskowitz to advise
on any specific matter as a group, as is VoteVets’ burden to allege.3

VoteVets brings this case against the Department, and therefore it must show that the Department,
not the President, either “established or utilized” the Mar-a-Lago Council. See Compl. ¶ 49.
2

Indeed, several of the allegations in the Complaint refer to just one of the Three Individuals, not
the group. For example, VoteVets alleges that VA officials credited only Dr. Moskowitz—not the
group—for efforts related to the Medical Device Registry Summit. See Compl. ¶ 41(d). Similarly,
only Dr. Moskowiz is alleged to have been looped in to discussions between then-Secretary
Shulkin and the American Association of Tissue Banks about tracking human tissue devices.
3

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The second news report relied upon by VoteVets is the ProPublica Article. That article also
does not suggest that the Department ever “actually formed” a FACA committee; indeed, it refutes
that proposition. The article states that “[w]hen Trump asked . . . for help putting a government
together, Perlmutter offered to be an outside adviser,” and thereafter “Perlmutter enlisted the
assistance of his friends Sherman and Moskowitz.” Ex. A at 4 (emphasis added). This is also
consistent with the “Statement by Ike Perlmutter, Bruce Moskowitz and Marc Sherman” that is
reprinted in the paragraph 42 of the Complaint, in which the Three Individuals explained that “[w]e
offered our counsel . . . to assist the President, Secretary and VA leadership . . . .” (emphasis added).
Under binding Circuit law, a group is not a FACA committee if it is brought together by a private
party. That is true even if the executive branch is indirectly responsible for the group’s formation.
See, e.g., Byrd, 174 F.3d at 246-47 (expert panel was not “established” by agency where federal
contractor selected its members and set its agenda pursuant to a government contract); Food Chem.
News v. Young, 900 F.2d 328, 333 (D.C. Cir. 1990) (same); People for Ethical Treatment of
Animals, Inc. v. Barshefsky, 925 F. Supp. 844, 848 (D.D.C. 1996) (working group was not
“established” by agency where outside entities named representatives to the group); see also 41
C.F.R. § 102-3.40(d) (a group is not established by the executive branch if it is “created by nonFederal entities”). Thus, if Mr. Perlmutter enlisted the participation of Mr. Sherman and Dr.
Moskowitz, as ProPublica states—or if the three men came together voluntarily—that is enough
to demonstrate that the Department did not “establish” the group within the meaning of FACA.4

Compl. ¶ 41(h). Moreover, the Complaint lacks any factual allegations suggesting that the Three
Individuals specifically sought to achieve consensus in providing advice to the Department. On
the contrary, the Complaint cites an email in which Mr. Sherman stated that “‘[w]e are always
excited to provide each of our thoughts to you,” as individuals. Compl. ¶ 42(h) (emphasis added).
The Complaint further underscores the privately-initiated nature of the association by noting that
when Mr. Sherman undertook discussions with ACS about evaluating VA surgery programs, it was
4

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Even if it were proper for the Court to go beyond this clear refutation in VoteVets’ own
supporting materials that the Department “established” a “Mar-a-Lago Council,” the remainder of
the ProPublica Article is similarly unhelpful to VoteVets. The article generally recounts the same
allegations contained in the Complaint about various phone calls and meetings taking place
between the Three Individuals, private sector representatives, and Department officials to suggest
that, because the Three Individuals exerted “influence” over the Department, they acted as a
“council.” See Ex. A at 2. Not only is this not the law under FACA, the “more than twenty
meetings” cited in the article and the Complaint plainly were not meetings in any formal sense of
that phrase; rather, they consisted largely of informal encounters with an ever-changing cast of
participants regarding different topics in different settings. These “meetings” included, for
example, a “brainstorming” session with healthcare executives, discussions of a mobile app with
“senior officials from Apple, the United States Digital Service, and the Mayo Clinic,” meals
between the Three Individuals and the Secretary, a tour of a VA hospital, calls with VA contracting
officials, and numerous telephone calls with different industry and private sector representatives,
including but not limited to representatives from CVS Health, Johnson & Johnson’s, Johns
Hopkins University, Brigham Health, Connected Health and Partners Health Care, Biomedical
Research & Education Foundation, Kaiser Permanente, the Cleveland Clinic, Mount Sinai Health
System, the Miami Cancer Institute and ACS. Compl. ¶ 35.
The ProPublica Article therefore suggests nothing more than that the Department received
input regarding a variety of policy matters from numerous individuals and groups that sometimes
included the Three Individuals. Such allegations are insufficient to suggest the formation of a

Mr. Sherman, not the VA, that chose to loop in Mr. Perlmutter and Dr. Moskowitz to those
discussions. See Compl. ¶ 41(g).
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FACA committee. See Nader, 396 F. Supp. at 1234 (meeting between government officials and
special interest groups for the purpose of exchanging views did not constitute an advisory
committee because the groups “were not formally organized” and there was “little or no
continuity” among participants and subject matter); Huron Envt’l Activist League v. EPA, 917 F.
Supp. 34, 42 (D.D.C. 1996) (rejecting FACA challenge where group had neither a fixed
membership nor a specific purpose and “simply d[id] not have the requisite formality and structure
of an advisory committee”). For these reasons, VoteVets has not plausibly alleged that the
Department “established” a “Mar-a-Lago Council” subject to FACA.
B.

The Complaint Does not Plausibly Allege that Defendants “Utilized” the Three
Individuals as a FACA Committee.

An entity that is not “established” by the government may only be an advisory committee
subject to FACA if it is “utilized” by the agency within the meaning of the statute. 5 U.S.C. app.
2 § 3(2). Yet as with the word “established,” the Supreme Court and the D.C. Circuit have given
an extremely narrow and specific interpretation to the word “utilize.” In Public Citizen, after
examining FACA’s legislative history, the Supreme Court concluded that the phrase “or utilized”
was added to FACA’s definition of “advisory committee” “simply to clarify that FACA applies to
advisory committees established by the Federal Government in a generous sense of that term,
encompassing groups formed indirectly by quasi-public organizations . . . ‘for’ public agencies as
well as ‘by’ such agencies themselves.” 491 U.S. at 462. The Court therefore rejected the
argument that an agency “utilizes” a committee within the meaning of FACA if it “makes use of”
the group’s work product. Id. at 452. Instead, the Court looked to whether the committee was
“amenable to the strict management by agency officials” and concluded that “an entity formed
privately” “cannot easily be said to have been ‘utilized by a department or agency in the same

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manner as a Government-formed advisory committee.’” Id. at 457-58 (emphasis added, citation
omitted).
Following Public Citizen, courts have repeatedly reaffirmed that the term “utilized” means
more than simply “used.” See, e.g., Wash. Legal Foundation v. U.S. Sentencing Comm’n, 17 F.3d
1446, 1450 (D.C. Cir. 1994) (holding that “utilized” requires a showing that federal officials
exercised “actual management or control of the advisory committee”—a “stringent standard”);
Food Chemical News, 900 F.2d at 332-33 (holding that “utilized” refers to a group “so closely tied
to an agency as to be amenable to ‘strict management by agency officials’” (citation and quotation
marks omitted)); Alcoa, 92 F.3d at 906 (concluding that groups were not “utilized” within meaning
of FACA because they were not “subject to the management, much less strict management of
federal agency officials”); see also 41 C.F.R. § 102-3.25 (a committee is “utilized” under FACA
only “when the President or a Federal office or agency exercises actual management or control
over its operation”). Thus, to demonstrate that the Department “utilized” the Three Individuals as
a FACA committee, VoteVets must show that the Department exercised “actual management or
control” over them. Wash. Legal Foundation, 17 F.3d at 1450.
The Complaint lacks any factual allegations indicating that the Department managed or
controlled the Three Individuals. While it asserts that the Department participated in various calls
and meetings with the Three Individuals and sometimes adopted their “advice and
recommendations,” those facts are not sufficient to infer that the Department managed or
controlled the Three Individuals.5 See, e.g., Byrd, 174 F.3d at 246 (“participation by an agency . .
. does not qualify as management and control” (citing Wash. Legal Found., 17 F.3d at 1451);

Nor is an allegation that the Department utilized the work product of the Three Individuals,
Compl. ¶ 38, the same as alleging that it utilized those individuals as a committee.
5

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Physicians Comm., 285 F. Supp. 2d at 446 (rejecting FACA claims because “although EPA was
informed about the progress of [a group’s] discussions and even attended certain meetings,
Plaintiffs have not established that EPA ever managed or controlled the timing, agenda, etc. of the
discussions”); Sofamor Danek Grp., Inc. v. Gaus, 61 F.3d 929, 936 (D.C. Cir. 1995) (holding that
committee was not subject to FACA notwithstanding the fact that the agency used its work product
because the agency did not “establish[], manage[], or control[]” the committee); Judicial Watch,
Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24, 34–35 (D.D.C. 2010) (allegations that a group
“provide[d] policy recommendations to the defendants” were insufficient to state a claim under
FACA because they demonstrated only that the agency “‘utilize[d]’ the NACC in the familiar,
colloquial sense” of that term, rather than managed or controlled the committee “within the
meaning of the FACA” (emphasis added)). Thus, the D.C. Circuit and the Supreme Court have
long “rejected the very claim that the plaintiffs are advancing here: that the FACA is triggered by
an agency’s mere use of a private group to obtain advice.” Huron, 917 F. Supp. at 41 (citing Public
Citizen, 491 U.S. at 457-58 and Wash. Legal Foundation, 17 F.3d at 1450).
The allegations in the Complaint are not only inadequate to meet VoteVets’ pleading burden
on this point; they directly refute it. Far from alleging that the Department managed or controlled
the Three Individuals, the Complaint asserts quite the opposite: that the Three Individuals asserted
influence over the Department.

See Compl. ¶¶ 38-39 (alleging that the Three Individuals

“bombarded VA officials with demands,” “prodded” them to start new projects and ”exert[ed]
sweeping influence on the VA”). Because these allegations are fundamentally inconsistent with
any suggestion that the Three Individuals were “amenable to strict management by agency
officials,” Public Citizen, 491 U.S. at 457-58, VoteVets has not plausibly alleged that the
Department “utilized” the Three Individuals within the meaning of FACA.

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*

*

*

*

At bottom, VoteVets’ claims boil down to its assertion that the “Council has broad license
to provide advice . . . on all manner of issues affecting” the Department and that “Defendants have
utilized such advice and recommendations.” Compl. ¶ 38. But as courts have repeatedly held, the
“fact that a federal agency obtains information or advice from a committee, formally or informally,
does not automatically classify the committee as a federal advisory committee subject to FACA
regulations, nor does it indicate that the agency ‘utilizes’ the committee.” Wash. Toxics Coalition,
357 F. Supp. 2d at 1273 (citation omitted). Thus, simply pairing allegations that the Three
Individuals exerted influence over the Department with the conclusory allegation that the
Department “established” or “utilized” the group does not make out a FACA claim.
VoteVets’ failure to satisfy its pleading burden here is particularly glaring in light of the
fact that VoteVets has access to hundreds of pages of documents pertaining to the role of the Three
Individuals that were received by ProPublica in response to a FOIA request, as well as information
contained in the ProPublica Article alleged to have been taken from “interviews with former
administration officials[.]” Ex. A at 2. In some situations, where facts are peculiarly within the
possession and control of the defendant,” Arista Records LLC v. DOE, 604 F.3d 110, 120 (2d Cir.
2010), pleading on “information and belief” may be sufficient. But where, as here, a plaintiff has
access to the relevant facts, such allegations, which are insufficient in any event, should be ignored
for purposes of Rule 12. Id. at 120. The absence of any specific factual allegations supporting
VoteVets’ theory that the Three Individuals constituted a FACA committee not only speaks
volumes given VoteVets’ access to hundreds of pages of documents pertaining to its claims, it
requires dismissal of the case for failure to state a violation of FACA.

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CONCLUSION
For the foregoing reasons, the Department respectfully requests that the Complaint be
dismissed.
Dated: November 16, 2018

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
Federal Programs Branch
/s/ Serena Orloff
SERENA M. ORLOFF
California Bar No. 260888
Trial Attorney
U.S. Department of Justice, Civil Division
Federal Programs Branch
1100 L Street NW, Room 12512
Washington, D.C. 20005
Telephone: (202) 305-0167
Fax: (202) 616-8470
Serena.M.Orloff@usdoj.gov
Attorneys for Defendants

23