Freedom Watch, Inc. v. Obama

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

FREEDOM WATCH, INC., )

)

Plaintiff, )

)

v. ) Civil Action No. 09-2398 (RWR)

)

BARACK OBAMA, et al., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

Plaintiff Freedom Watch sued the President of the United

States, an entity styled in the complaint as the Obama Health

Reform De Facto Advisory Committee (“OHRDFAC”), and the unknown

non-federal employee members of that committee for alleged

violations of the Federal Advisory Committee Act (“FACA”),

codified at 5 U.S.C. app. 2, seeking access to information about

the membership and meetings of the OHRDFAC. The defendants move

for summary judgment1 on Freedom Watch’s claim for minutes of the

committee’s past meetings arguing that the OHRDFAC does not exist

and that the stakeholder meetings did not create an advisory

committee subject to FACA. Because the defendants have shown

that there is no genuine dispute of material fact and that they

1

On September 26, 2011 and August 29, 2012, the defendants

filed memoranda relating to Freedom Watch’s claim for copies of

meeting minutes. The defendants’ memoranda were ordered to be

“treated as a motion for summary judgment on the sole remaining

claim for copies of certain meeting minutes.” December 20, 2012

Minute Order.

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are entitled to judgment as a matter of law on the claim for

meeting minutes, the defendants’ motion for summary judgment will

be granted.

BACKGROUND

The background of this case is set out fully in Freedom

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

Freedom Watch alleges that the President established the OHRDFAC

to gather information and negotiate agreements in support of the

proposed health reform legislation enacted in 2010. Compl. ¶ 7.

Freedom Watch sought access to the committee’s meeting minutes

and decisions, a listing of all individuals who attended or

participated in any committee meetings, advance notice of, and

the ability to participate in, any future meetings, and the

appointment of “at least one person with a different point of

view” than the committee. Compl. ¶¶ 10, 13-14. The claim for

minutes of the alleged committee’s meetings survived the

government’s motion to dismiss and an additional challenge based

on mootness.2 The defendants’ first supplemental memorandum

states that the OHRDFAC and any documents or minutes from the

committee’s meetings never existed. The defendants admit that

President Obama and his staff held meetings with individuals and

entities who were stakeholders in health care reform. Defs.’

2

Freedom Watch’s other claims were dismissed as moot.

Freedom Watch, Inc. v. Obama, 859 F. Supp. 2d 169, 174-76 (D.D.C.

2012).

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Supp. Mem. Concerning the Mootness of Count 1 at 4-6, Ex. 1,

Decl. Of Kimberley Harris (“Harris Decl.”) ¶¶ 2-4. The parties

were ordered to show cause why the defendants’ supplemental

memorandum should not be treated as a motion for summary judgment

on the plaintiff’s sole remaining claim for minutes of the

committee’s meetings. Freedom Watch, Inc. v. Obama, 859 F. Supp.

2d 169, 176 (D.D.C. 2012). The defendant responded that the

supplemental memorandum should be treated as a motion for summary

judgment and Freedom Watch opposed, arguing in part that the

Harris Declaration was insufficient evidence to support the

defendants’ claim for summary judgment. A July 13, 2012

memorandum order found the defendants’ evidence to be

insufficient to support granting summary judgment to the

defendants. See Mem. Order entered July 13, 2012 at 2-3. The

defendants were ordered to file a joint status report reflecting

whether they would provide further evidentiary support or confer

with Freedom Watch about discovery. Id. at 3.

In response to these deficiencies, the defendants filed a

second supplemental memorandum arguing that the additional

evidentiary support submitted with that memorandum would be

sufficient to grant summary judgment to them on the sole

remaining claim. Defs.’ Mem. of Law (“Second Supp. Mem.”) at 4-

9. The defendants submitted the declaration of Andrew White, a

Special Assistant and Associate Counsel to the President, which

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provides further detail on the stakeholder meetings including a

list of stakeholder meetings relating to the healthcare

legislation. Id., Ex. 1, Decl. of Andrew Wright (“Wright

Decl.”), Ex. A. Freedom Watch responds that the government’s

declarations are based on hearsay and fail to disclose important

facts and that the plaintiff is entitled to discovery under

Federal Rule of Civil Procedure 56(d). Pl.’s Opp’n to Defs.’

Mot. for Summ. J. (“Pl.’s Opp’n”) at 2-4.

DISCUSSION

Summary judgment is proper on a claim where “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

At the summary judgment stage, “‘[t]he evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn

in his favor.’” Feirson v. District of Columbia, 506 F.3d 1063,

1066 (D.C. Cir. 2007) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). However, “[a] party may not rely

merely upon denials in pleadings to show a genuine dispute, but

must come forward with specific evidence that reveals a genuine

factual dispute.” Henok v. Chase Home Fin., LLC, Civil Action

No. 12-292 (RWR), 2013 WL 718771, at *2 (D.D.C. Feb. 26, 2013).

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

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the President[.]” 5 U.S.C. app. 2 § 3(2). For the purposes of

FACA, “[a]n advisory panel is established when it has been formed

by a government agency, and utilized if it is ‘amenable to . . .

strict management by agency officials.’” Heartwood, Inc. v. U.S.

Forest Serv., 431 F. Supp. 2d 28, 34 (D.D.C. 2006) (quoting Pub.

Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 457-58 (1989)).

Because “a group is a FACA advisory committee when it is asked to

render advice or recommendations, as a group, and not as a

collection of individuals[,]” “an important factor in determining

the presence of an advisory committee [is] the formality and

structure of the group.” Ass’n of Am. Physicians & Surgeons,

Inc. v. Clinton, 997 F.2d 898, 913–14 (D.C. Cir. 1993). Criteria

relevant to determining if a group has sufficient formality and

structure to qualify as a FACA advisory committee include whether

the group has 1) “an organized structure,” 2) “a fixed

membership,” and 3) “a specific purpose.” Id. at 914. The D.C.

Circuit has recognized that groups generally fall on a continuum:

At one end one can visualize a formal group of a

limited number of private citizens who are brought

together to give publicized advice as a group. That

model would seem covered by the statute regardless of

other fortuities such as whether the members are called

“consultants.” At the other end of the continuum is an

unstructured arrangement in which the government seeks

advice from what is only a collection of individuals

who do not significantly interact with each other.

That model . . . does not trigger FACA.

Id. at 915; see also Heartwood, 431 F. Supp. 2d at 35 (stating

that where “the President or an agency seeks to ‘provide[] a

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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” (quoting Nader v. Baroody, 396 F. Supp. 1231, 1234

(D.D.C. 1975))).

The defendants’ initial memorandum furnished insufficient

information to warrant summary judgment for the defendants. In

particular, the defendants’ evidence did not “present any

reasonably full list of the names of the participants [in the

stakeholder meetings],” “provide enough detail to determine the

number and formality of meetings or whether the same individuals

and entities attended the meetings with regularity[,]” or

“provide enough details to permit an assessment of whether the

individuals who participated in the health care reform

discussions were asked to render collective advice or produce any

other type of collaborative work product.” Mem. Order entered

July 13, 2012 at 2-3. The defendants now provide further

evidence that the stakeholder meetings do not meet the

qualifications of FACA because they solicited “individual views”

and a broad range of “unique perspectives and experiences” and

the members “were not asked to, and did not, provide advice or

recommendations as a group.” Second Supp. Mem., Ex. 1, Wright

Decl. ¶¶ 8, 11. The government proffers the Wright declaration

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which includes details about the healthcare stakeholder meetings,

a report from the White House Forum on Health Reform, and an

appendix which provides the dates and descriptions of meetings

that then-Director of the White House Office of Health Reform

Nancy-Ann DeParle held with stakeholders regarding health reform.

See id., Ex. 1, Wright Decl. ¶¶ 3-11, Exs. A, B.

In response, Freedom Watch argues that the defendants have

not disclosed the specific information which the court ordered.

Pl.’s Opp’n at 2. However, the government’s evidence provided

the names of the individuals who attended the White House Forum

on Health Reform as well as a list of the individuals who

attended meetings with the Office of Health Reform from

March 2009 to March 2010. See Second Supp. Mem., Ex. 1, Wright

Decl., Exs. A, B. These documents also reflect both the number

of meetings and the individuals and entities who attended the

meetings. See id. Wright’s declaration, submitted under penalty

of perjury, states that the purpose of the stakeholder meetings

was not to “obtain[] consensus advice or recommendations from

group deliberation[.]” Instead, the participants were only to

provide “individual views[,]” and “were not asked to, and did

not, provide advice or recommendations as a group.” Id., Ex. 1,

Wright Decl. ¶¶ 8, 11. Wright’s “review of White House

documents, . . . consultation with White House staff present at

many of the meetings[,] . . . and [knowledge of] materials

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reviewed for submission to Congress[,]” id. ¶ 2, provide a

sufficient basis to support his declaration.3 Finally, the

defendants’ submissions reflect that the individuals attending

these meetings varied significantly and there is no evidence that

the defendants had the goals of attaining collective advice or

collaborative work product from the stakeholder meetings. The

defendants have provided sufficient evidence to support their

claim that the alleged committee does not fall within the scope

of FACA.

Freedom Watch proffers no specific evidence to rebut the

defendants’ claims but only requests discovery under Rule 56(d).

Rule 56(d) provides that

[i]f a nonmovant shows by affidavit or declaration

that, for specified reasons, it cannot present facts

essential to justify its opposition, the court may:

(1) defer considering the motion or deny it; (2) allow

time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). The decision to grant or deny relief

under Rule 56(d) is within the discretion of the district court.

Seed Co., Ltd. v. Westerman, 840 F. Supp. 2d 116, 121 (D.D.C.

3

The plaintiff states that the Wright and Harris

declarations are “untimely hearsay” and overly general, and were

submitted in bad faith. Pl.’s Opp’n at 3 & n.1. Whatever

“untimely” may mean, it presents no factually-based challenge to

the accuracy of the information provided in the supplements that

was gleaned in part from doubtlessly admissible business records,

and the declarations collectively are far from overly general.

Further, the plaintiff has provided no factual basis for finding

under Rule 56(h) that the declarations were submitted in bad

faith.

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2012) (citing Stella v. Mineta, 284 F.3d 135, 147 (D.C. Cir.

2002)). A Rule 56(d) affidavit “cannot be a generalized,

speculative request to conduct discovery but must demonstrate

that further specified discovery will defeat a summary judgment

motion, . . . and show what facts [the nonmoving party] intend[s]

to discover that would create a triable issue and why he could

not produce them in opposition to the motion.” Butler v.

Schapiro, 839 F. Supp. 2d 252, 258 (D.D.C. 2012) (internal

citations and quotation marks omitted); see also Seed Co., 840 F.

Supp. 2d at 121 (stating that the nonmovant “‘must state by

affidavit the reasons why he is unable to present the necessary

opposing material’” (quoting Cloverleaf Standardbred Owners

Ass’n, Inc. v. Nat’l Bank of Wash., 699 F.2d 1274, 1278 n.6 (D.C.

Cir. 1983))). Under Rule 56(d), “[c]onclusory allegations

without any supporting facts are not sufficient to justify

additional discovery.” Butler, 839 F. Supp. 2d at 258 (internal

quotation marks omitted). Further, “[w]here . . . plaintiff

offers no reason to doubt [the declarants’] veracity, discovery

under Rule 56(f) may not be used to test [their] credibility.”4

Citizens for Responsibility and Ethics in Wash. v. Leavitt, 577

F. Supp. 2d 427, 434 (D.D.C. 2008) (analyzing a request for

discovery under the earlier version of Rule 56).

4

Freedom Watch alleges, with no factual support, that the

defendants’ declarations are “false and misleading[.]” Pl.’s

Opp’n at 3.

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Here, Freedom Watch seeks discovery of documents and

materials relating to the alleged “advisory committee meetings”

and depositions of persons who attended the meetings. Pl.’s

Opp’n, Ex. 1, FRCP Rule 56(d) Aff. of Larry Klayman in Supp. of

Pl.’s Opp’n to Defs.’ Mot. for Summ. J. ¶¶ 2-4. Freedom Watch

fails to meet the requirements of Rule 56(d). Freedom Watch has

not specified what facts it intends to discover to rebut the

government’s evidence. Instead, Freedom Watch simply states that

the defendants “are in sole custody” of the relevant information.

Id. ¶ 4. The plaintiff’s request for discovery is unsupported by

any facts and includes only the type of conclusory allegations

which are insufficient for gaining relief under Rule 56(d).

CONCLUSION

The defendants have offered facts, unrebutted by any

contrary factual showings, sufficient to satisfy their burden to

establish that they are entitled to judgment as a matter of law.

The plaintiff has not shown any justification for discovery under

Rule 56(d). Therefore, the defendants’ motion for summary

judgment on the plaintiff’s claim for meeting minutes will be

granted. An appropriate Order accompanies this memorandum

opinion.

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SIGNED this 15th day of March, 2013.

/s/

RICHARD W. ROBERTS

United States District Judge