VoteVets Action Fund v. DVA
992 F.3d 1097 (2021)
Rule of Law:
A private group providing advice to a federal agency may be considered an 'advisory committee' under the Federal Advisory Committee Act (FACA), and thus subject to its transparency requirements, if the federal government plausibly established it, even through informal means, by forming the group and selecting its members.
Facts:
- On December 28, 2016, President-elect Donald Trump attended a meeting at the Mar-a-Lago resort with healthcare executives, organized by Isaac 'Ike' Perlmutter, Bruce Moskowitz, and Marc Sherman, focused on improving and reforming the Department of Veterans Affairs (VA).
- In January 2017, President-elect Trump publicly announced his administration would set up a group, stating that Ike Perlmutter was 'very, very involved' in efforts to 'straighten out' the VA.
- VoteVets Action Fund alleges President Trump named Perlmutter to lead this group, which they dubbed the 'Mar-a-Lago Council,' with Moskowitz and Sherman serving as members, without effort to ensure balanced membership or prevent conflicts of interest.
- On or around February 7, 2017, Perlmutter, Moskowitz, and Sherman met with then-Secretary of Veterans Affairs David Shulkin for a 'Group meeting,' after which Moskowitz indicated the group could collaborate by phone or in-person as needed.
- Over the next year and a half, the Mar-a-Lago Council conducted more than twenty-five meetings, advising the VA on various projects including veteran suicide prevention, development of mobile applications and medical device registries, a $10 billion contract for digital records, and potential privatization of VA healthcare services.
- None of the Council's meetings were publicly announced or open, nor were minutes kept or any documents made public.
- Council members frequently referred to themselves as a 'group' or 'team,' and VA officials also considered them a 'team,' consulting one another in their advisory capacity to the Department.
Procedural Posture:
- VoteVets Action Fund filed a lawsuit against the United States Department of Veterans Affairs and its Secretary in the United States District Court for the District of Columbia.
- The defendants moved to dismiss the complaint for lack of standing and failure to state a claim.
- The district court held that VoteVets had standing to sue.
- The district court further held that VoteVets failed to plausibly allege that the alleged 'Mar-a-Lago Council' had the required structure of an advisory committee under FACA, or that it was 'established' or 'utilized' by the federal government.
- The district court dismissed VoteVets' complaint.
- VoteVets appealed the district court's dismissal to the United States Court of Appeals for the District of Columbia Circuit.
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Issue:
Does a complaint plausibly allege that a group of private individuals advising the Department of Veterans Affairs (VA) constituted an 'advisory committee' that was 'established' by the federal government under the Federal Advisory Committee Act (FACA), even if its establishment was informal?
Opinions:
Majority - Circuit Judge Pillard
Yes, VoteVets' complaint plausibly alleges that the Mar-a-Lago Council was an 'advisory committee' 'established' by the federal government under the Federal Advisory Committee Act (FACA). The court began by affirming VoteVets' standing based on an informational injury under FACA, assuming for the pleading stage that the Council was an 'advisory committee.' The court then addressed whether the group had the requisite 'organized structure, a fixed membership, and a specific purpose' and rendered advice 'as a group,' finding these elements plausibly alleged given the three men jointly organized initial meetings, President-elect Trump announced a group led by Perlmutter to help the VA, and the trio consistently met and referred to themselves as a 'group' or 'team' while advising the VA on specific projects. Crucially, regarding the 'established' prong of FACA, the court held that VoteVets plausibly alleged that the federal government, either President Trump or the VA, formed the Council and selected its members. The court rejected the district court's view that President-elect Trump’s 'off-the-cuff comments' were insufficient, emphasizing that the government need not take formal steps to 'establish' a FACA advisory committee and that circumstantial evidence suffices. The court found that the President-elect's public announcement of a group, Perlmutter's stated involvement, and the subsequent, sustained advisory activity by the three men supported a reasonable inference of governmental establishment and member selection. The court explicitly noted that it was not necessary to reach VoteVets' alternative 'utilized' theory, nor did it embrace or reject the district court’s ruling on that issue.
Analysis:
This case significantly clarifies the standard for pleading governmental 'establishment' of an advisory committee under FACA, particularly for informal groups. It reinforces that formal governmental action is not strictly required, and circumstantial evidence can be sufficient to survive a motion to dismiss. The ruling broadens the potential reach of FACA's transparency requirements to informal, high-level advisory bodies, shifting the burden to the government to refute such allegations through discovery rather than dismissing claims at the pleading stage. This could lead to more litigation over the opaque operations of informal presidential or agency advisory groups, compelling greater transparency in governmental decision-making processes.
