UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC. , : : Plaintiff, : Civil Action No.: 0 7

- 1446 (RMU) : v. : Re Do cument No .: 22 : U NITED S TATES DEPARTMENT OF : COMMERCE et al. , : : Defendants. : MEMORANDUM OPINION G RANTING THE D EFENDANTS ’ R ENEWED M OTION TO D ISMISS I. INTRODUCTION This matter is before the court on the defendants’ renewed motion to dismiss

. The
p laintiff , Judicial Watch, Inc. (“Judicial Watch”) seek s declaratory and injunctive relief against the U.S. Department of Commerce (“DOC”) and DOC Secretary Gary Locke 1

1 Pursuant to Federal Rule of Civil Procedure 25(d), the court substitutes the current DOC Secretary, Gary Locke, for Carlos Gutierrez. F ED
. R. C IV
. P. 25(d) (stating that an “officer’s successor is automatica lly substituted as a party” and that “[l]ater proceedings should be in the substituted party’s name”). (collectively, the “defendants”) based on their alleged noncompliance wi th the Federal Advisory Committee Act (“FACA”) , 5 U.S.C. a pp. 2

. Because the plaintiff has failed to plead a facially plausible claim for which relief can be granted , the court grants the defendants’ motion to dismiss

.2 II. BACKGROUND 2
A. The North Amer ican Competitiveness Council In March 2005, leaders from the United States, Canada and Mexico held a summit d uring which the three nations created the Security and Prosperity Partnership of North America (“SPP”) to address matters of mutual concern , such as trade, energy and environmental issues

. Compl

. ¶ 9. In March 2006, former DOC Secretary Gutierrez and his counterparts from Canada and Mexico met with senior business leaders from the three countries to identify priorities for the SPP and to solicit p olicy recommendations for improving North American economic competitiveness. Id. ¶ 10. During this meeting, the participants also discussed the creation of the North American Competitiveness Council and its U.S. component subgroups (collectively, the “ N ACC ”)

. Id. Subsequently, Secretary Gutierrez and his counterparts agreed upon a framework for the NACC, which would provide policy recommendations to the three governments for subsequent action through the SPP. Id. ¶ 11. Th is framework envisioned the N ACC functioning as a conduit between the defendants , their Canad ian and Mexic an counterparts and the North American business community

. Id. The proposed structure of the NACC was again discussed d uring a later meeting held in March 2006, between officia ls from each government and private sector representatives

. Id. ¶ 12. Following this meeting , DOC officials met with the Council of the Americas and the U.S. Chamber of Commerce to “formalize the NACC by facilitating interaction between

2 For the purposes of ruling on this motion, the court assumes the truth of the plaintiff’s allegations. See Atherton v. D.C. Office of the Mayor , 567 F .3d 673, 681 (D.C. Cir. 2009) (observing that “[w]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint” (quoting Erickson v. Pardus , 551 U.S. 89, 94 (2007))).3 representatives f rom the three governments and the private sector.” Id. ¶ 13. Secretary Gutierrez met with his Canadian and Mexican counterparts in June 2006 to officially launch the NACC. Id. ¶ 14.
T he NACC is composed of thirty

- five members of the North American busi ness community. Id. ¶ 15. Canada and Mexico each hold ten NACC seats reserved for representatives from their respective countries , while the United States holds fifteen seats

. Id. ¶¶
17

- 18. Each country separately determines the selection process for a ppointing its representatives to the NACC and designates organizations to serve as “Secretariats

. ” Id. ¶ ¶ 15 , 20

. For the U.S. delegation, the DOC selected two “business groups,” the Council of the Americas and the U.S. Chamber of Commerce to serve joint ly as the U.S. NACC Secretariat. Id. ¶ 20. The U.S. NACC Secretariat in turn selects the business organizations that hold seats on the
NACC

. Pl.’s Opp’n to Defs.’ Renewed Mot. to Dismiss (“ Pl.’s Opp’n ”) at 16. The U.S. component of the NACC consists o f an Executive Committee and an Advisory Committee. Compl. ¶ 22. The Executive Committee is comprised of the fifteen U.S. representatives to the NACC, each of which is a large corporation

. Id. The Advisory Committee consists of over 200 businesses, ass ociations and chambers of commerce that provide advice and policy recommendations to the Executive Commit t ee. Id. ¶ 23. T he NACC meets with the defendants and their Canadian and Mexican counterparts multiple times each year to propose and discuss policy recommendations on issues such as facilitating border

- crossing, regulatory cooperation and energy integration. Id. ¶¶ 21, 26.4 B . Statutory Framework The FACA’s purpose is “ to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures ” that result only in

“ worthless committee meetings and biased proposals. ” Pub

. Citizen v. U.S. Dep’t of Justice , 491 U.S. 440, 453, 459 ( 1989 ). Congress intended the FACA to “ ensure that new advisory

c ommittees be established only when essential[;] . . . that their creation, operation, and duration be subject to uniform standards and procedures; that

. . . the public remain apprised of t heir existence, activities, and cost; and that their work be exclus ively advisory in nature. ” Id. at 446. The FACA places obligations on the conduct of advisory committees falling within its ambit

. Id.
at 446

- 47. For example, the FACA requires, inter alia , that advisory committees file a charter, keep minutes of their meetings and file public notice s of their meetings. 5 U.S.C. app. 2 §§ 9(c), 10(a)(2), 10 (c)

. A dvisory committees subject to FACA must also open their meetings to the public and make their minutes, records and reports publicly available, subject only to certain narrow statutory exceptions not relevant here

. Id. § 10(a)(3), 10 (b) , 10 (d). The central dispute between the parties in this case is whether the NACC is an advisory committee subject to the FACA, as defi ned by the statute and case law

. Defs.’ Mot. at 9

- 15 ; Pl.’s Opp’n at 11

- 18

. The FACA defines advisory committees , in pertinent part, as “a ny committee

. . . established or utilized by one or more [U.S. government] agencies

. ” 5 U.S.C.

a pp. 2 § 3(2). T he plaintiff asserts that the DOC establish ed and continue s to utilize the NACC , subjecting the NACC to FACA regulations

. Compl. ¶¶ 35

- 47.5 C . Factual & Procedural History The plaintiff is a non

- profit public interest corporation that monitors the actions of government entities and officials at the federal, state and local levels. Compl. ¶ 1. The plaintiff’s mission is to promote government al integrity, transparency, accountability and fidelity to the rule of law. Id. To that end, t he plaintiff has been investigating the NACC since July
2006

. Id. ¶ 28. The alleged relationship between the NACC and the DOC underlies the plaintiff’s claims of FACA violations. Id. ¶¶ 35

- 47. The plaintiff began seeking information about the NACC in July 2006 by submitting Freedom of Information Act requests t o various federal agencies, including the DOC

. Id. ¶ 28. Through these requests, t he plaintiff sought access to records related to the NACC’s creation, activities and meetings. Id. The plaintiff also requested permission from the U.S. NACC Secretariat to participate in all future NACC meetings, but in April 2007 , the U.S. Chamber of Commerce denied this request. Id. ¶¶ 29

- 30. The plaintiff then sent a letter to the defendants in July 2007 asking them to acknowledge that the FACA applies to the NACC, a nd that , as a result, public access should be provided to all NACC meetings and records

. Id . ¶ 31. T he defendants had not replied to this letter by August 10, 2007, when the plaintiff commenced this suit seeking declaratory and injunctive relief related to the defendants’ alleged violations of the FACA. Id. ¶ 32

. Th is court granted the defendants’ initial motion to dismiss on September 19, 2008, holding that the plaintiff had not demonstrated standing

. Mem. Op

. (Sept. 19, 2008). On appeal, the Circui t reversed and remanded, holding that, for the purposes of deciding a motion to dismiss, the plaintiff had made sufficient factual allegations to assert standing. Judicial Watch,6 Inc. v. U.S. Dep’t of Commerce , 583 F.3d 871, 87 3

- 74 (D.C. Cir. 2009)

. Upo n remand, the defendants filed this renewed motion to dismiss, which is now fully briefed. See generally Defs.’ Renewed Mot. to Dismiss (“Defs.’ Mot.”).

III. ANALYSIS
A . Legal Standard for a Rule 12(b)(6) Motion to Dismiss A Rule 12(b)(6) motion to d ismiss tests the legal sufficiency of a complaint. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon whi ch it rests. Kingman Park Civic Ass’n v. Williams , 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing
F ED
. R. C IV
. P. 8( a)(2) and Conley v. Gibson , 355 U.S. 41, 47 (1957)). “Such simplified notice pleading is made possible by the liberal opportunity for discov ery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues.” Conley , 355 U.S. at 47

- 48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 511

- 14 (2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely , 211 F.3d 134, 136 (D. C. Cir. 2000) (internal quotati on marks and citation omitted). Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007) (abrogating the oft

- quoted language from Conley , 355 U.S. at 45

- 56, instructing7 courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the mis conduct alleged.” Iqbal , 129 S. Ct. at 1949 (citing Twombly , 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id . (citing Twomb ly , 550 U.S. at 556

. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual allegations

– including mixed questions of law and fact

– as true and draw all reasonable inferences therefrom in the plaintiff’s favor. Macharia v. Un ited States , 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft , 333 F.3d 156, 165 (D.C. Cir. 2003); Browning , 292 F.3d at 242. While many well

- pleaded complaints are conclusory, the court need not accept as true inferenc es unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia , 353 F.3d 36, 40 (D.C. Cir. 2004); Browning , 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action,
sup ported by mere conclusory statements, do not suffice.” Iqbal , 129 S. Ct. at 1949 (citing Twombly , 550 U.S. at 555).
B . The Plaintiff May Bring a Cause of Action for FACA Violations Under the Administrative Procedure Act or the Mandamus Act As a prelimi nary matter, the court considers the defendants’ argument that the plaintiff’s claim is not viable because the FACA does not directly provide for a private right of action, and neither the Administrative Procedure Act (“APA”), 5 U.S.C. § § 500 et seq. , nor the Mandamus Act, 28 U.S.C. § 1361, provide an alternative basis for obtaining such relief. Defs.’ Mot. at 19.8 In opposition, the plaintiff argues both all three statues provide a basis for the relief it seeks

. Pl.’s Opp’n at 18. 1. The FACA Does Not Confer a Private Right of Action “The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Alexander v. Sandoval , 532 U.S. 275, 286 (2001) (citations omitted). “Statutory intent on this latte r point is determinative. ” I d

. “ N othing in the language of [the] FACA evidences any intent to create such a remedy. ” Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group , 219 F. Supp. 2d 20, 33

- 34 (D.D.C. 2002); see also Colo. Envtl. Coal. v. Wenker , 353 F.3d 1221, 1234 (10th Cir. 2004); (stating, without explanation, that the FACA does not contain a private right of action); Utah Ass’n of Counties v. Bush , 316 F. Supp. 2d 1172, 1184 (D. Utah 2004) (holding that the FACA does not provide for a private right of action); cf

. Natural Resources Def. Council v. Abraham , 223 F. Supp. 2d 162, 176 (D.D.C. 2002) ( recognizing that the FACA does not create a private right of action and allowing the plaintiff’s case to proceed via the APA ) , superseded by statute , 5 U.S.C. app. 2, as recognized in Natural Resources Def. Council v. Dep’t of Energy , 353 F.3d 40, 41 (D.C. Cir. 2004) (explaining that the case is moot because the committees at issue were statutorily e xempt from the FACA). Because the FACA does not explicitly confer a private remedy, see generally 5 U.S.C. app. 2, and because this fact alone is “determinative,” the court holds that the FACA does not provide the plaintiff with a private right of action. Sandoval , 532
U.S. at 286.9 2. The Plaintiff May Bring Its Claims Pursuant to the APA The APA grants district courts jurisdiction to review final agency actions for which there is no other adequate remedy. 5 U.S.C. § 704. Here, t he plaintiff alleges that the defendants have denied it access to NACC meetings and documents . Compl. ¶ 31 , 32 . Another court in this district, analyzing under the APA a claim to enforce the same provisions of the FACA at issue here , has observed that “[t]he type of actions and inaction challenged here , [such as] holding meetings, refusing to disclose documents[ and] failure to comply with FACA’s other procedural requirements, certainly fall within the

. . . definition of agency action.” Nat’l Energy Policy , 219 F. Supp. 2d at 38. Th e court also expla ined that the agency’s decisions not to comply “with the various pr ocedural requirements of FACA” had the effect of a final action because they “ were not tentative or interlocutory” and “had [the] legal consequence [of] den[ying ] . . . the public’s righ t of access to that information. ” Id . at 40. As a result, th e court determined that the APA was an appropriate avenue for the plaintiffs to bring their claims alleging FACA violations. See id . at 36

- 40. Indeed, a number of court s have allowed plaintiffs to proceed with APA actions based on alleged FACA violations

. See, e.g. , Idaho Wool Growers Ass’n v. Schafer , 637 F. Supp. 2d 868, 872 n.3 (D. Id aho 2009) (acknowledging that a plaintiff may bring a claim for FACA violations unde r the APA); Int’l Brominated Solvents Ass’n v. Am. Conference of Governmental Indus. Hygienists , 393 F. Supp. 2d 1362, 1378 (M.D. Ga. 2005) (stating that “[n]othing in the applicable FACA provisions precludes judicial review under the APA”); Utah Ass’n of Counties , 316 F. Supp. 2d at 1184 ( requiring that a plaintiff complaining of FACA violations do so via the APA); Natural Resources Def. Council v. Abraham , 223 F. Supp. 2d at 193 (allowing the10 plaintiffs to proceed on the ir APA claims for FACA violations). This court concurs with the reasoning of these decisions and concludes that the plaintiff may bring its claims pursuant to the
APA. 3. The Plaintiff May Bring Its Claims Pursuant to the Mandamus Act The Mandamus Act authorizes district courts to issue m andamus orders compel ling federal officials to perform ministerial or non

- discreti onary duties. 28 U.S.C. § 1361

. The court
notes that nearly every provision of the FACA that explain s the statutory duties of advisory committees , like those at issue here , includes the word “shall , ” s ee, e.g., 5 U.S.C. a pp. 2 § 10(a)(1) (stating “[e]ach advisory committee meeting shall be open to the public ) (emphasis added); id . § 10(b) (requiring that “the records, reports, transcripts, minutes, appendixes, working
papers , drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection ” ) (emphasis added); id

. § 10(c) ( mandating that “[d] etailed minutes of each meeting of each ad visory committee shall be kept ” ) (emphasis added), indicating that “the language of [the FACA] leaves no room for discretion , ” Nat’l Energy Policy , 219 F. Supp. 2d

. at 43. Therefore, such discrete, non

discretionary duties qualify as re lief in the nature of mandamus

. See id

. at 43

. Accordingly, the court holds that the plaintiff may bring his claim for alleged FACA violations under the Mandamus Act. 3

3 As further sup port for their position, the defendants also cite a case in which the Circuit directed Cf

. Citizens for Responsibility & Ethics in Wash. v. Exec. Office of the President , 587 F. Supp. 2d 48, 63 (2008) (denying a motion to dismiss a claim for FACA

the district court to dismiss the plaintiff’s claims under the Mandamus Act based on alleged FACA violations. Defs.’ Mot. at 20 (citing In re Cheney , 406 F.3d 723, 72 9 (D.C. Cir. 2005)). Cheney , however, does not address the issue of whether a plaintiff may bring a FACA claim under the Mandamus Act. 406 F.3d at 730. Rather, the Circuit affirmed the dismissal of the plaintiff’s FACA claims not because relief under the Mandamus Act was unavailable, but rather because the advisory committees in question did not fall under the FACA. Id. at 730

- 31.11 violations brought pursuant to the Mandamus Act on the basis that it is not duplicative of the plaintiff’s APA claim); Ctr. for Arms Control & Non

- Proliferation v. Lago , 2006 WL 3328257, at * (D.D.C. Nov. 15, 2006) (analyz ing the plaintiff’s FACA

- based M andamus Act claim on the merits and dismissing the complaint because the committee at issue did not fall under FACA)

. C. The Plaintiff Fails to Allege that the Defendants Establish ed or Utilize d th e NACC Within the Meaning of the FACA The defendants argue that the NACC do es not fall under the FACA because the DOC did
not “ establish ” and do es not “ utilize ” the NACC

. Defs.’ Mot. at 9

- 15 ; Defs.’ Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply”) at 1

- 6

. The plaintiff responds that the FACA applies to the NACC because the DOC “established” the NACC by playing a role in its creation and “utilizes” the NACC by meeting with it regularly to discuss policy recommendations. Pl.’s Opp’n at 11

- 13. The N ACC is subject to FACA regulations if it was “ established ” or is “ utilized ” by the
DOC

. 5 U.S.C. app. 2 § 3(2). The Supreme Court has stated that Congress did not design the
FACA to cover every formal or informal consultation between a government agency and a g roup rendering advice. Pub. Citizen , 491 U.S. at 453. In the Court’s view, a straightforward interpretation of the term “utilize” “ would catch far more groups and consulting arrangements than Congress could conceivably have intended. ” Id. at 464 ; see al so id . at 457

- 58 (n oting that the committee did not receive federal funding and was “not amenable to strict management by agency officials ” ). Subsequent decisions of this Circuit have further clarifi ed the meaning of the terms “establish” and “utilize” i n the context of the FACA. Taken together, these decisions describe three ways in which the government can “ establish ” or “ utilize ” a n advisory committee so as to subject it to FACA obligations. First, the government “establishes” an advisory committee w hen12 the government directly forms it. Food Chem

. News v. Young , 900 F.2d 328, 332 (D.C. Cir. 1990) (citing Pub. Citizen , 491 U.S. at 460

- 62 )

. Second , the government “utilizes” a privately

formed advisory committee when agency officials exercise actual ma nagement or control over that committee. Wash

. Legal Found

. v. U.S. Sentencing Co m m ’ n , 17 F.3d 1446, 1451 (D.C. Cir. 1994). Third, even if a non

- government entity forms an advisory committee, that committee will still fall under the FACA if the organizat ion forming it is “quasi

- public.” Animal Legal Def

. Fund, Inc. v. Shalala , 104 F.3d 424, 431 (D.C. Cir. 1997). The court reviews the plaintiff’s allegations in the context of each of these methods in turn. 1. The Plaintiff Fails to Adequately Allege T ha t the D OC Directly Formed the NACC This Circuit has held that the government does not directly form or “establish” an advisory committee when the agency itself does not select the committee’s members. Byrd v.
U.S. Envtl. P rot
. A gency , 174 F.3d 239, 246 ( D.C. Cir. 1999) (citing Food Chem. News , 900 F.2d at 332)

. The plaintiff in Byrd protested that the Environmental Protection Agency (“ EPA ”) had “effectively created” the committee by “conceiving of the need for it.” Id. The Byrd plaintiff also argued th at the EPA retained some authority to select the committee members, and had even provided a list of suggested members to the contractor forming the committee. Id. The Circuit remained unpersuaded , however, because the EPA never actually exercised its aut hority to determine who participated in the committee. Id. at 247. In the Circui t’s view, anything less than actual selection of advisory committee members is insufficient to constitute direct formation

or government establishment within the meaning of t he FACA

. I d. at 246

- 47

. Here, t he plaintiff here alleges that the defendants, working w ith their Mexican and Canadian c ounterparts, created the “framework” for the NACC. Compl. ¶ 11. Later, the leaders13 of the United States, Mexico and Canada held a ser ies of meetings during which they allegedly discussed the proposed structure of the NACC. Id. ¶ 12. Next, the plaintiff state s that the defendants worked with the Council of the America s, the U.S. Chamber of Commerce and other interested parties “to form alize the NACC by facilitating interaction between representatives from the three governments and the private sector.” Id. ¶ 13. T he plaintiff also assert s that former Secretary Gutierrez met with his counterparts and North American business leaders t o

“ officially launch” the NACC and that each country represented in the NACC “determines its own members and the membership selection process.” Id. ¶ ¶ 14, 15. Last ly , the plaintiff alleges that the defendants designated the Council of the Americas and the U .S. Chamber of Commerce to serve as the U.S. Secretariat with respect to the NACC , i d. ¶ 20 , and, in turn, t he U.S. Secretariat selects the U.S. representatives to the NACC, Pl.’s Opp’n at 16.
T hese allegations do not support the contention that the DOC d irectly formed the NACC

as the plaintiff does not allege that the DOC or any other U.S. government agency selects the
U.S. representatives to the NACC. See generally Compl.; Pl.’s Opp’n. Accordingly, the court hold s that the plaintiff has not adequately alleged that the defendants directly formed or “established” the NACC

. 4

4 The plaintiff argues that U.S. General Services Administration (“GSA”) guidelines on when the FACA applies lend suppor t to its position that the DOC directly formed the NACC . Pl.’s Opp’n at 17. The GSA is the federal agency that administers the FACA. Id. The plaintiff points to a hypothetical scenario described in a GSA publication in which the GSA declares that the F ACA applies to a committee convened by a government administrator and made up of senior corporate officials who confer and advise a government agency. Id. ; Pl.’s Opp’n, Ex. A at 2. Although the court may not look to documents outside of the pleadings in resolving a motion to dismiss, F ED
. R. C IV
. P. 12(d), the court notes that doing so here would not affect the outcome of the case because the GSA publication also states that the FACA applies in that scenario due to the fact that “the committee is establis hed by an agency head.” Pl.’s Opp’n, Ex. A at 2. The GSA publication incorporates the term “establish” from the FACA statute, id. , and as already discussed, this Circuit has defined that term in its decisions in a manner inconsistent with the plaintiff’s allegations

. See , Byrd v. U.S. Envtl. Prot. Agency , 174 F.3d 239, 246 (D.C. Cir. 1999)

. Byrd , 174 F.3d at 246

- 47; s ee also Food Chem

. News , 900 F.2d at14 33 3 ( holding that the FACA did not cover a committee whose members had not been selected by the government ) 5

2 . The Plaintiff Fails to Adequately Allege Th at the Defendants Exercise Actual ; People fo r Ethical Treatment of Animals, Inc. v. Barshefsky , 925 F. Supp. 844 , 847

- 48 (D.D.C. 1996) (denying the plaintiff’s motion for an injunction, holding that the plaintiff had not demonstrated a likelihood of success on the merits because fact that the govern ment named some of the committee members and provid ed the committee with partial funding “does not rise to the level necessary . . . to conclude that the [government] ‘directly established’ the [committee] ”).
Management or Control Over the NACC This Circuit has held that the government “utilizes” an advisory committee only when it exercises “ something along the lines of actual management or control” over that committee. Wash

. Legal Found. , 17 F.3d at 1450 ; see also Food Chem. News , 900 F.2d at 332

- 33 ( stating that the term “utilized” “ encompasses a group organized by a nongovernmental entity but nonetheless so closely tied to an agency as to be amenable to strict management by agency officials [] ” ) (internal quotations omitted). Even “significant influence” over a committee does

More over , even if the GSA publication did contradict Circuit’s precedent, courts need not defer to the GSA’s interpretations of the FACA because the GSA’s “interpret ive regulations [were] not promulgated pursuant to express statutory authority” from Congress. Pub. Citizen v. U.S. Dep’t of Justice , 491 U.S. 440, 463 n.12 (1989)

.
5 The plaintiff contends that the courts in both Food Chemical News and Byrd decided that the FACA did not apply because of a statutory exception that excludes federal contractors from obligations unde r the FACA. Pl.’s Opp’n at 15 . This assertion, however, reflects a mis understanding of both cases. Although the facts underlying both cases i nvolved federal contractors, neither plaintiff alleged that the FACA applied to those contractors. See Food Chem. News , 900 F.2d at 331; Byrd , 174 F.3d at 241

- 42. In addition, the holdings in both cases rested on the explicit conclusion that the FACA was inapplicable because the government had not

“ established ” or “ utilized ” the disputed committees, not on the FACA exception for contractors. See Food Chem. News , 900 F.2d at 333; Byrd , 174 F.3d at 247

- 48.15 not constitute the degree of control required to qualify as utilization in the FACA context

. Wash

. Legal Found. , 17 F.3d at 1451

. The plaintiff in t his case avers that the NACC provides policy recommendations to the defendants and acts as a conduit between them and the business community. Compl. ¶ 11. The plaintiff also maintains that the defendants meet frequently with the NACC at the “ministerial” and “working group” levels to discuss policy recommendations. Id. at ¶¶ 21

- 24. T he plaintiff does not, however, allege that the defendants exercise any management authority or control over the NACC. See generally Compl.; Pl.’s Opp’n. The court therefo re holds that the plaintiff has
not adequately alleged that the defendants manage or control the NACC and thus do not “utilize” it for FACA purposes

. See Wash

. Legal Found. , 17 F.3d at 145 0

- 51 ( determining that a committee was not subject to the FACA beca use the government did not exercise control over it ) ; s ee also Huron Env tl. Activist League v. U.S. Envtl

. P rot
. A gency , 917 F. Supp. 34, 42 (D.D.C. 1996) ( holding that FACA did not apply to the committee at issue because the defendant did not utilize it b y exercising control) ; Am

. Soc. of Dermatology v. Shalala , 962 F. Supp. 141,
147 (D.D.C. 1996) ( ruling that the government did not exercise control over the committee and therefore did not utilize it under the FACA)

.

3 . The Plaintiff Does Not Allege That Any Quasi
- Public Organization Formed the NACC The FACA may also apply to an advisory committee created by a “quasi

- public” organization. Animal Legal Def. Fund , 104 F.3d at 431. A “quasi

- public” organization is one that, while technically private, is “c reated or permeated by the federal government.” Id. at 428 (citing Pub. Citizen , 491 U.S. at 463). The Circuit, in Animal Legal Defense Fund , pointed to the National Academy of Sciences (“NAS”) as an archetypal example of a quasi

- public organization ,16 bec ause the NAS, although organized as a private corporation, was created and funded by Congress. Id. at 429

. Here, the plaintiff makes no allegations concerning a quasi

- public organization’s involvement in creating the NACC. See generally Compl.; Pl.’s O pp’n. The plaintiff , likewise , offers nothing to suggest that the federal government created, permeates or funds the SPP, the NACC, the Council of the Americas or the U.S. Chamber of Commerce in a manner allowing the court to draw comparisons with quasi

- p ublic organizations such as the court did in Animal Legal Def. Fund

. Id. Therefore, the court concludes that the plaintiff has not alleged that the NACC was formed by a quasi

- public organization. See Animal Legal Def. Fund , 104 F.3d at 431 ; see also Foo d Chem. News , 900 F.2d at 333 (holding that the FACA did not apply to the committee at issue partly because the organization that created it was not “quasi

- public”); Wash

. Toxics Coal

. v. U.S. E nvtl. P rot
. A gency , 357 F. Supp. 2d 1266, 1273 (W.D. Wash. 200 4) (denying plaintiff’s motion to dismiss because, among other reasons, the organization that created the committee at issue was not quasi

- public)

. Although t he plaintiff details how the DOC “ established ” and continues to “ utilize ” the NACC in the familiar, c olloquial sense of those terms, Compl. ¶¶ 9

- 27, this Circuit has rejected such broad, literal interpretations of these words in the FACA context. See, e.g. , Pub. Citizen , 491 U.S. at 4 63

- 64 (stating that “a literalistic reading [of the FACA] would catch far more groups and consulting arrangements than Congress could conceivably have intended ”) ; Animal Legal Def. Fund , 104 F.3d at 428 (stating that “ the definition given by the Court to [the term ‘utilized’ ] focuses not so much on how it is used but whether or not the character of its creating institution can be thought to have a quasi

- public status ”) ; Wash. Legal Found. , 17 F.3d at 145 017 (holding that the “ word ‘ util ized ’ in [the FACA context] . . . is a stringent standar d, denoting something along the lines of actual management or control of the advisory committee”) ; Food Chem. News , 900 F.2d at 332

- 33 (stating that in the FACA context “‘established’ indicates a
Gove rnment

- formed advisory committee , while ‘ utilized ’ encompasses [a committee] so closely tied to an agency as to be amenable to strict management by agency officia ls” ) (internal citations omitted)

. Accordingly, because the court holds that the plaintiff ha s failed to allege that the defendants “established” or “utilize” the NACC within the meaning of the FACA, the court concludes that the plaintiff has failed to adequately plead that the FACA applies to the NACC, and therefore the plaintiff does not state a claim for relief. 6

IV. CONCLUSION For the foregoing reasons , the court grants the defendant s ’ motion to dismiss. An O rder consistent with this Memorandum Opinion is separately and contemporaneously issued this 7th day of September , 2010.

RI CARDO M. URBINA United States District Judge

6 As a result, the court does not reach the merits of the defendants’ arguments that the NACC was not created or used in the interest of obtaining advice or recommendations for the government as required under the FACA, that the FACA does not apply to foreign proceedings, foreign governments or foreign ci tizens, and that there would be no basis for an order requiring the DOC to produce documents irrespective of the statutory Freedom of Information Act exemptions. Defs.’ Mot. at 15

- 18, 22

- 23.