UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ERIK O. AUTOR, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 11-1593 (ABJ)

)

REBECCA BLANK, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION

The Department of Commerce (“DOC”) and United States Trade Representative

(“USTR”) have implemented a policy barring federally registered lobbyists from serving on 

Industry Trade Advisory Committees (“ITACs”) – commissions that provide advice on trade 

policy to the President through the USTR and the Secretary of Commerce. Plaintiffs are six 

individuals who previously served or are interested in applying to serve on ITACs, and who were 

or will be denied membership because they engage in activities that trigger the registration 

requirements contained in the Lobbying Disclosure Act of 1995 (“LDA”). Compl. [Dkt. # 1] 

¶¶ 7–12.

Plaintiffs contend that the policy violates the First and Fifth Amendments of the 

Constitution of the United States. Id. ¶ 1. They assert that the policy deprives them of a valuable

governmental benefit on the grounds that they have exercised their First Amendment right to 

petition the government for a redress of grievances. Id. ¶¶ 42–49. Therefore, they say, the 

policy both burdens that right and employs an unconstitutional classification that penalizes those 

who invoke it. Id.
2

Defendants have moved to dismiss for lack of standing under Federal Rule of Civil 

Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 

12(b)(6). Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) [Dkt. # 8] at 2–3. Although the Court finds 

that at least some of plaintiffs have standing to bring their claims, it will grant defendants’ 

motion to dismiss the action because plaintiffs have failed to state a claim that the policy

unconstitutionally infringes upon the right to petition the government or that it employs an 

unlawful classification.

In the Court’s view, the plaintiffs have not supplied the necessary predicate for their First 

Amendment argument because the allegations in the complaint do not establish that service on an 

ITAC is a valuable government benefit that an individual committee member could receive. But 

even if it is, plaintiffs have not been denied that benefit on a basis that infringes upon their

constitutionally protected rights and they have not been penalized for or inhibited in the exercise 

of their rights. As the complaint specifically reveals, the challenged policy does not condition 

the receipt of the alleged benefit upon relinquishing the right to petition the government – either 

as an individual or on behalf of others – and there is no allegation that the opportunity for 

committee service has been withdrawn in retaliation for any constitutionally protected activity. 

Therefore, plaintiffs’ action will be dismissed. 

BACKGROUND

The Trade Act of 1974 (“Act”), 19 U.S.C. § 2155, directs the President to “seek 

information and advice from representative elements of the private sector and the non-Federal 

sector” with respect to certain aspects of the trade policy of the United States. Id. § 2155(a). It 

sets out three tiers of advisory committees to provide this advice. The first two tiers of 

committees respectively provide “overall policy advice” and “general policy advice” on trade 
3

issues. Id. § 2155(b), (c)(1). ITACs fall within the third-tier, consisting of “sectoral or 

functional advisory committees.” Id. § 2155(c)(2); Request for Nominations for the Industry 

Trade Advisory Committees (ITACs), 75 Fed. Reg. 24584, 24585 (May 5, 2010) (“Nomination 

Request”). Accordingly, ITACS are structured to include a broad range of industry perspectives. 

Nomination Request at 24585. In other words, the members serve solely in a representative 

capacity. Id.

The committees are organized by the United States Trade Representative and the 

secretary of the appropriate executive department; in this case, the Secretary of Commerce. 19 

U.S.C. § 2155(c)(2); Compl. ¶ 30. They meet at the request of the USTR and other designated 

executive officials to provide “policy advice, technical advice and information, and advice on 

other factors” relevant to the trade matters described in the statute. 19 U.S.C. § 2155(d). In 

addition, each committee meets at the conclusion of negotiations for certain trade agreements to 

provide the President, Congress, and the USTR with a report on the agreement. Id. § 2155(e). It 

is the responsibility of the USTR, in conjunction with the appropriate executive department 

secretary, to adopt the procedures for consulting with and obtaining information and advice from 

the ITACs. Id. § 2155(i). The USTR is not bound by the advice or recommendations of the 

ITACs, but must inform them of significant departures from their advice or recommendations. 

Id. 

On September 23, 2009, Deputy Counsel to the President announced on the White 

House’s Open Government Initiative website that “[t]he White House has informed executive 

agencies and departments that it is our aspiration that federally-registered lobbyists not be 

appointed to agency boards and commissions.” Compl. ¶ 32. In accordance with that 

announcement, plaintiffs allege, the DOC and USTR now require individuals applying for ITAC 
4

membership to provide a statement affirming both that: (a) the applicant is not a federally 

registered lobbyist, and (b) if appointed, the applicant will not be able to continue serving as an 

ITAC member if he or she should become a federally registered lobbyist. Id. ¶ 34. Furthermore, 

a recent published announcement for ITAC nominations stated that “the applicant must not be a 

federally-registered lobbyist.” Id. ¶ 35.

What is a “federally-registered lobbyist?” The LDA requires registration for any 

individual who is (1) “employed or retained by a client,” (2) “for financial or other 

compensation,” (3) “for services that include more than one lobbying contact,” (4) unless the 

individual’s lobbying activities “constitute less than twenty percent of the time engaged in the 

services provided by such individual to that client over a three-month period.” 2 U.S.C. §

1602(10). With some exceptions, a “lobbying contact” is any oral or written communication to a 

covered executive or legislative branch official on behalf of a client with regard to particular 

facets of federal legislation, rules, regulations, executive orders, programs, policies, positions, 

nominations, and confirmations. Id. § 1602(8).

The complaint alleges that five of the six plaintiffs in this case formerly represented 

members of the private sector on ITACs but were not reappointed because they were federally 

registered lobbyists. Compl. ¶¶ 7–12. The sixth plaintiff, William Reinsch, is allegedly 

“interested in applying to represent the National Foreign Trade Council (“NFTC”) on an ITAC,” 

but given the DOC and USTR policy, “it is clear that Reinsch’s application will not be 

accepted.” Id. ¶ 11.

Plaintiffs filed the complaint in this case on September 2, 2011. The First Cause of 

Action alleges that the exclusion of federally registered lobbyists from ITACs violates the First 

Amendment by “denying the benefit of committee service to individuals whose exercise of the 
5

right to petition triggers the LDA’s registration requirement, while also interfering with the 

ability of the entities that seek the services of these lobbyists to communicate their views to the 

government.” Compl. ¶¶ 42–49. The Second Cause of Action alleges that the policy violates the 

Equal Protection clause of the Fifth Amendment because it “draws an unconstitutional 

distinction between those who exercise their right to petition the government and those who do 

not.” Id. ¶¶ 50–57.

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must 

“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all 

inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 

F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 

1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the 

plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court 

accept plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)

(citations omitted).

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a 

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); 

Shekoyan v. Sibly Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of 

limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors 

Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court with limited 

jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter 
6

jurisdiction is an ‘Art[icle] III as well as a statutory requirement, . . . no action of the parties can 

confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 

F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de 

Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a 

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the 

complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other 

grounds, 482 U.S. 64 (1987). Rather, a court “may consider such materials outside the pleadings 

as it deems appropriate to resolve the question of whether it has jurisdiction in the case.”

Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert 

v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms.,

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). 

II. Failure to State a Claim

“To survive a [Rule 12(b)(6)] 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, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). 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 

misconduct alleged.” Iqbal, 556 U.S. at 678, 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., quoting Twombly, 550 U.S. at 556. “[W]here the 

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, 
7

the complaint has alleged – but it has not ‘show[n]’ ‘that the pleader is entitled to relief.’” Id. at 

679, quoting Fed. R. Civ. Pro. 8(a)(2). 

A pleading must offer more than “labels and conclusions” or a “formulaic recitation of 

the elements of a cause of action,” id. at 678, quoting Twombly, 550 U.S. at 555, and “the tenet 

that a court must accept as true all of the allegations contained in a complaint is inapplicable to 

legal conclusions.” Id. In ruling upon a motion to dismiss, a court may ordinarily consider only 

“the facts alleged in the complaint, documents attached as exhibits or incorporated by reference 

in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt 

v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).1

In evaluating a motion to dismiss a constitutional challenge, the Court must first 

determine the appropriate level of scrutiny for examining the policy in question. Classifications 

made by the government are generally valid “if they bear a rational relation to a legitimate 

governmental purpose.” Regan v. Taxation with Representation of Wash., 461 U.S. 540, 547 

(1983). However, if they interfere with the exercise of a fundamental right, such as the First 

Amendment right to petition, or if they employ a suspect classification, they are subjected to a 

higher level of scrutiny. Id. Therefore, as part of its analysis, the Court must determine the 

threshold question of whether the DOC and USTR policy interferes with plaintiffs’ right to 

petition or employs a classification that impinges upon plaintiffs’ First Amendment rights. 

 

1 There are not a lot of facts in this complaint. The Court cannot help but observe that the 

initiating document in this case appears to have been drafted without much regard for the 

requirement in Fed. R. Civ. Proc. 8 that a complaint be a short and plain statement of the claim. 

Plaintiffs essentially filed a brief – complete with legal citations – and numbered the paragraphs.
8

ANALYSIS

I. Plaintiffs have standing to challenge the policy. 

A lack of standing is a defect in subject-matter jurisdiction. Haase v. Session, 835 F.2d 

902, 906 (D.C. Cir. 1987). In order to establish constitutional standing, a plaintiff must 

demonstrate that a case or controversy exists by showing that (1) he has suffered an “injury in 

fact”; (2) that the injury is “fairly traceable” to the conduct of the defendant; and (3) that it is 

likely that the injury will be redressed by a favorable decision. George v. Napolitano, 693 F. 

Supp. 2d. 125, 129–30 (D.D.C. 2010), quoting Friends of the Earth, Inc. v. Laidlaw Envtl. 

Servs., 528 U.S. 167, 180–81 (2000). Defendants here argue that plaintiffs lack standing because 

they have not suffered an injury in fact. Defs.’ Mot. at 15.

For standing purposes, an injury in fact is “an invasion of a legally protected interest 

which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or 

hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). The 

Supreme Court has long recognized that injury in fact exists when a plaintiff alleges that the 

government has directly impacted the exercise of his First Amendment rights or where he has 

shown a threat of specific future harm. See Laird v. Tatum, 408 U.S. 1, 13–14 (1972), citing Ex 

parte Levitt, 302 U.S. 633, 634 (1937). Defendants point out that four of the five plaintiffs chose 

to remain registered lobbyists despite the consequence that they would not be given positions on 

the ITACs. Defs.’ Mot. at 34. Similarly, with regard to the final plaintiff, the complaint alleges 

that “it is clear that Reinsch’s application [to represent the National Foreign Trade Council on an 

ITAC] will not be accepted,” Compl. ¶ 11, not that Reinsch will deregister as a federal lobbyist. 

So the defense takes the position that plaintiffs do not allege that the government has directly 
9

impacted their First Amendment rights. Defs.’ Mot. at 33–34. But the complaint as written does 

allege that the plaintiffs’ rights have been burdened by being forced to make the choice.

Moreover, the Supreme Court has also found injury in fact where the government 

threatens to cause an individual a cognizable injury as a consequence of his exercise of a

constitutional right. In Meese v. Keene, 481 U.S. 465 (1987), the Supreme Court considered the

plaintiff’s motion for preliminary injunction challenging the Foreign Agents Registration Act of 

1938, which would have required three Canadian films that the plaintiff wished to publicly show

to be labeled “foreign political propaganda.” Id. at 467–68. The defendants argued that the 

plaintiff lacked standing because he had not shown a direct impact to the exercise of his First 

Amendment right to free speech. The Supreme Court disagreed. It found that plaintiff – an 

attorney and member of the California State Senate – had standing because the law threated to 

cause him “cognizable injury” for choosing to exercise his constitutionally protected rights. Id. 

at 473 (finding appellee alleged “more than a ‘subjective chill’” because the consequence of 

exercising his right to free speech threatened to cause him cognizable injury.). It found 

cognizable injury because detailed uncontradicted affidavits that plaintiff had submitted showed 

that “if he were to exhibit the films while they bore . . . [the label “political propaganda,”] his 

personal, political, and professional reputation would suffer and his ability to obtain re-election 

and to practice his profession would be impaired.” Id. (internal quotation marks omitted).

Here, plaintiffs have alleged that the DOC and USTR policy denies them the benefits of 

ITAC membership solely because they are involved in activities that are allegedly protected by 
10

the First Amendment.2 At this juncture, the Court must assume that plaintiffs would succeed on 

the merits – in other words, that their activities are protected by the First Amendment, and that

the deprivation violates their constitutional rights. See Alvin Lou Media, Inc. v. FCC, 571 F.3d 

1, 7 (D.C. Cir. 2009), citing City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (for 

purposes of standing, the court must assume that plaintiffs would prevail on the merits); see also 

Meese, 481 U.S. at 473 (“Whether the statute in fact constitutes an abridgement of the plaintiff’s 

freedom of speech is, of course, irrelevant to the standing analysis.”) (internal quotation marks,

citations, and alterations omitted). So the determinative question is whether plaintiffs have 

shown that the loss of ITAC membership constitutes a “cognizable injury” to them.

Plaintiffs need not show economic injury to meet the injury in fact requirement, United 

States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686 (1973), but the 

injury must be “distinct and palpable” and the plaintiff must be among those injured. Id.; Warth 

v. Seldin, 422 U.S. 490, 501 (1975). Injury may also exist solely “by virtue of statutes creating 

legal rights, the invasion of which creates standing.” Warth, 422 U.S. at 500 (internal quotation 

marks omitted). The complaint appears to assert that deprivation of ITAC membership is an 

injury in itself. See Compl. ¶ 44 (“The exclusion of federally registered lobbyists from ITACs 

substantially burdens First Amendment rights by denying the benefit of committee service to 

individuals . . .”).

 

2 The Court has some concerns about whether plaintiff Reinsch’s injury is sufficiently 

“imminent” since he has not yet applied for ITAC membership; however, if standing can be 

shown for at least one plaintiff, the Court “need not consider the standing of the other plaintiffs 

to raise that claim.” Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 

1996) (citation omitted).
11

Neither the complaint nor the initial briefing dwelled in much detail on the specific

personal harm that could flow from the deprivation of ITAC membership.3 However, at the 

motions hearing on this matter, attorney for plaintiffs asserted that ITAC service provides the

benefit of boosting the member’s resume. Draft Transcript (“Tr.”) at 23–24. Counsel also 

explained that service on an ITAC gives the individual a sense of “professional satisfaction,”

“valuable expertise,” “enjoyable experience,” “valuable experience and education,” 

“professional contacts,” and “the satisfaction of making a contribution.” Id. at 21, 30; Pls.’ 

Supp. Br. in Opp. to Def.’s Mot. to Dismiss (“Pls.’ Supp. Br.”) [Dkt. # 14] at 3. These assertions 

are certainly not the “detailed affidavits” that the Supreme Court relied on to find injury in fact in 

Meese, but the Court finds that they suffice to require it to go on and address the matter on the 

merits.

In addition, plaintiffs have sufficiently alleged injury in fact for their equal protection 

claim (Second Cause of Action). “The injury in fact in an equal protection case of this variety is 

the denial of equal treatment resulting from the imposition of the barrier, not the ultimate 

 

3 The complaint claims that the policy “interfer[es] with the ability of the entities that seek 

the services of these lobbyists to communicate their views to the government.” Compl. ¶ 44. 

However, harm to the entities that the lobbyists represent is irrelevant to the analysis of whether 

plaintiffs have standing in their own capacities. See Warth v. Seldin, 422 U.S. 490, 501 (1975) 

(“[P]laintiff must allege a distinct and palpable injury to himself[.]”). Plaintiffs are not asserting 

associational standing on behalf of those entities. The complaint also claims that the policy gives 

them special access to information, but plaintiffs admit that “ITAC members are forbidden from 

distributing classified or otherwise non-public information to non-members, even when those 

non-members work for the same organization as the ITAC member.” Pls.’ Mem. in Opp. to 

Defs.’ Mot. to Dismiss (“Pls.’ Opp.”) [Dkt. # 9] at 4 n.2. Since the ITAC member can only use 

that non-public information for purposes of the ITAC, the only benefit that access provides is 

linked to the effectiveness of the member in his role as an ITAC member. That in turn benefits 

the entity that the member represents and the government, not the member himself. See id. at 4 

(explaining that access to non-public information benefits both the government and private 

industry). Therefore, the Court does not find it appropriate to consider either of these 

characteristics of ITAC service in assessing plaintiffs’ standing. 
12

inability to obtain the benefit.” Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (internal quotation 

marks and alterations omitted). Plaintiffs’ second cause of action alleges that the exclusion of 

federally registered lobbyists from ITACs violates the equal protection clause of Fifth 

Amendment because it puts those who are exercising their right to petition the government on a 

different footing than those who are not. Compl. ¶ 53. This, along with the above-mentioned 

allegations that the deprivation of ITAC service constitutes at least a minimal injury, satisfies the 

injury in fact requirement, as set out in Gratz.

It is undisputed that plaintiffs’ injuries are fairly traceable to defendants – the agencies 

that issued and implement the policy – and will be redressed by a favorable decision – plaintiffs 

will regain the same opportunity to serve on the ITACs as other similarly qualified applicants.

Therefore, the Court finds that plaintiffs have standing to challenge the DOC and USTR policy

under both the First and Fifth Amendments of the Constitution of the United States.

II. The Policy Does Not Interfere with Plaintiffs’ First Amendment Right to Petition 

the Government for a Redress of Grievances as alleged in the First Cause of 

Action.

Plaintiffs seek the opportunity to advise the government as industry sector representatives

on ITACs. They claim that the ban on service by federally registered lobbyists offends the 

Constitution, in particular, the provision in the First Amendment that provides: “Congress shall 

make no law . . . abridging . . . the right of the people . . . to petition the government for a redress 

of grievances.” U.S. Const. amend. I. 

But in the case that is most analogous to the instant situation, Minn. State Bd. for Cmty.

Colls. v. Knight, 465 U.S. 271 (1984), the Supreme Court held unequivocally that the

Constitution does not grant members of the public any particular right to be heard by public 

bodies making policy decisions. Id. at 283. 
13

Public officials at all levels of government daily make policy decisions based only 

on the advice they decide they need and choose to hear. To recognize a 

constitutional right to participate directly in government policymaking would 

work a revolution in existing government practices.

Id. at 284. Thus, plaintiffs have no legal entitlement to ITAC service.

Knight involved a challenge to the Minnesota Public Employment Labor Relations Act 

(“PELRA”). The statute provided that if professional employees had selected an exclusive 

representative for mandatory bargaining, their employer could then choose to exchange views on 

other employment-related questions, not subject to mandatory bargaining, with the exclusive 

representative only. Id. at 276–77 & 277 n.4. This formal exchange of views on other topics

was called the “meet and confer” process. Id. at 276.

The Minnesota Community College Faculty Association (“Faculty Association”) had 

been designated the exclusive representative for the faculty of the state’s community colleges, so 

under the PELRA, only members of the Faculty Association could “meet and confer” with the 

State Board. Id. at 273–74. The appellees – community college faculty instructors who were not 

members of the Faculty Association – challenged this provision as violating their First 

Amendment rights to speak, associate, and petition the government by depriving them of a fair 

opportunity to participate in the selection of their representatives. Id. at 278–79.

As noted above, the Knight opinion explained that it was a well-settled constitutional 

principle that the instructors had no right to be heard by government bodies making policy 

determinations. But in addition, the Court went on to reject the argument that the “meet and 

confer” provision impaired the teachers’ constitutional right to free association by exerting 

pressure on them to join the Faculty Association:
14

Appellees may well feel some pressure to join the exclusive representative 

in order to give them the opportunity to serve on the ‘meet and confer’ 

committees or to give them a voice in the representative’s adoption of 

positions on particular issues. That pressure, however, is no different from 

the pressure they may feel to join [the Faculty Association] because of its 

unique status in the ‘meet and negotiate’ process, a status the Court has 

summarily approved. Moreover, the pressure is no different from the 

pressure to join a majority party that persons in the minority always feel. 

Such pressure is inherent in our system of government; it does not create 

an unconstitutional inhibition on associational freedom.

Id. at 289–90.

Plaintiffs do not dispute that under Knight, they have no constitutional right to ITAC

membership. Pls.’ Opp. at 14. So in an effort to avoid the obvious effect that Knight would have 

on this case, they do not cast their complaint as alleging a deprivation of any “right” to serve on 

an ITAC. Pls.’ Opp. at 15–16. Instead, they cite the doctrine of unconstitutional conditions, on 

which Perry v. Sinderman, 408 U.S. 593 (1972), is the seminal case. Pls.’ Opp. at 16. They 

maintain that the government has placed an unconstitutional condition on the receipt of the 

“benefit” of ITAC membership. Id. In the Court’s view, this argument is foreclosed by Knight 

as well, because it is simply a reformulation of the Knight plaintiffs’ argument that the rule 

makes the decision to exercise one’s First Amendment rights more difficult and pressures the 

plaintiffs to choose a particular path of self-expression because certain undesirable consequences 

will flow from another.

But even if Knight is not the beginning and the end of the matter, then the question before 

the Court, as the plaintiffs have framed the controversy, is whether this case actually fits within 

the Perry rubric. The Court finds that both of the necessary prongs are missing.

In Perry, the Supreme Court held that “even though a person has no ‘right’ to a valuable 

governmental benefit and even though the government may deny him the benefit for any number 

of reasons . . . [i]t may not deny a benefit to a person on a basis that infringes his constitutional 
15

protected interests – especially, his interest in freedom of speech.” Perry, 408 U.S. at 597. That

seems clear enough, but as one commentator has observed, the Supreme Court’s decisions 

applying the unconstitutional conditions doctrine “seem a minefield to be traversed gingerly.”

Kathleen Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1988). 

However, the cases are consistent in articulating the key concern underlying the doctrine: “if the 

government could deny a benefit to a person because of his constitutionally protected speech or 

associations, his exercise of those freedoms would in effect be penalized and inhibited.” Perry,

408 U.S. at 597; see also Speiser v. Randall, 357 U.S. 513, 518–19 (1958) (finding the denial of 

a tax exemption for engaging in certain kinds of speech a violation of the First Amendment 

because it “necessarily will have the effect of coercing the claimants to refrain from the 

proscribed speech.”). Here, plaintiffs’ unconstitutional condition argument fails because the 

complaint does not support a finding that service on an ITAC is a valuable government benefit. 

More important, the complaint does not allege that ITAC service is being denied to the plaintiffs 

“because of” their constitutionally protected activities, or that plaintiffs’ constitutional right to 

petition the government has actually been abridged. 

a. ITAC membership is not a valuable government benefit.

The Supreme Court has recognized tax exemptions, unemployment benefits, welfare 

payments, and public employment as valuable government benefits that cannot be withdrawn as 

a consequence of an individual’s exercise of his First Amendment rights. See Perry, 408 U.S. at 

597. In each of these contexts, the plaintiffs were deprived of a nontrivial economic benefit. Id.

And although neither the Supreme Court nor this Circuit has required the benefit in an 

unconstitutional conditions claim to have measurable economic worth, the precedent is clear that 
16

the benefit must be in some way “valuable,” such that its deprivation would burden the exercise

of one’s First Amendment rights.4 Perry, 408 U.S. at 597.

Yet the complaint is devoid of any factual assertions indicating that ITAC service is a

valuable government benefit for the particular individuals functioning as the industry sector 

representatives. The First Cause of Action simply contains the conclusory allegation that the 

exclusion of federally registered lobbyists from ITACs burdens First Amendment rights by 

denying “the benefit of committee service” to those individuals. Compl. ¶ 44. In their 

opposition to the motion to dismiss, plaintiffs acknowledge that “[t]he ITACS are designed to 

provide a host of benefits to the government,” Pls.’ Opp. at 3, and they go on to claim that 

“ITAC members also gain significantly from their privileged positions.” Id; see also id. at 6. 

(“ITAC membership provides numerous irreplaceable benefits to individuals, in addition to the 

benefits the government gains from receiving their advice.”) However, the opposition does little 

to elaborate further. It states that “[a]s a necessary condition of the role they play, ITAC 

members have access to sensitive business, trade, and other information not available to the 

general public,” id. at 3 (internal quotations omitted), and it characterizes this special access as 

“invaluable and irreplaceable.” Id. It also quotes the Special Counsel to the President, who 

described ITAC membership as “unique.” Id. at 4 n.3.

 

4. Plaintiffs also point to Davis v. Federal Election Commission, 554 U.S. 724, 738 (2008). 

Pls.’ Opp. at 15. In Davis, the Court found that a federal law that maintained the pre-existing cap 

on receipt of individual contributions for those political candidates whose personal contributions 

exceeded a certain amount – while trebling that cap for those who could not self-finance –

impermissibly burdened the First Amendment right of the well-heeled candidate “to spend his 

own money for campaign speech.” Id. The statute “produce[d] fundraising advantages for 

opponents in the competitive context of electoral politics” and required candidates who wanted 

to self-finance their campaigns to “shoulder a special and potentially significant burden.” Id. at 

739. The statute in question in Davis thus had real economic consequences for the candidates

that the Court found had the effect of burdening their First Amendment rights. Thus, the case 

does little to illuminate the question at issue here.
17

When the Court raised the matter at oral argument, counsel struggled to articulate what 

the benefit might be:

The Court: What is the benefit here? What are the facts that you’ve 

alleged in your complaint from which I can draw the inference that this is 

even a benefit?

[Counsel for Plaintiffs]: I think the nature of service on the ITAC 

necessarily carries with it a whole constellation of not easily quantifiable 

but very real benefits. If someone serves on an ITAC, they get valuable 

expertise, they get experience, they get a resume enhancing characteristic, 

they get an enjoyable experience, they get something that they would like 

to do. All of those things are personal benefits both for standing purposes 

and for purposes of satisfying the unconstitutional conditions doctrine.

***

The Court: Well, what’s your response to the answer that, no, the point of 

the committee is to benefit the decision makers and to benefit the quality 

of the decision, and ultimately I guess the public and the marketplace. 

The point of this is not to benefit the people that are on it, and in fact, they 

don’t even serve in their personal capacity, they serve as, okay, you’re the 

airline sector and you’re the pharmaceutical sector. So how does it have 

an individual benefit at all?

[Counsel for Plaintiffs]: Well, it certainly is a case that ITACs were not 

created for the purposes of benefitting the individual ITAC member. But 

exactly the same thing is true of the government employment. The 

Department of Justice was not created by Congress to create employment 

opportunities for DOJ employees, it was created to help the President 

effectuate, carry out the laws of the United States, just as ITACs were 

created to help the President formulate trade policy. That doesn’t mean 

that persons who serve in the Department of Justice don’t obtain a 

personal benefit from doing that that’s relevant for purposes of the 

unconstitutional conditions doctrine.

I think the same thing is true of ITAC membership. The fact that 

people are anxious to serve, the fact that the plaintiffs here brought this 

litigation, because they are anxious to serve as ITAC members, shows I 

think that they get what they regard as a personal benefit. It’s a desirable 

characteristic, it’s a desirable opportunity that’s provided by the 

government to people unless they exercise their Constitutional rights to 

petition and speak. And that is exactly what we think triggers application, 

generally speaking, of the unconstitutional conditions doctrine.

The Court: So just being a desirable thing is enough?
18

[Counsel for Plaintiffs]: Well, not in the air. But as I say, it’s difficult to 

quantify the benefits in an economic sense, but I think there can be no 

question that just as with an internship, it provides benefits . . . .

Tr. 21:1–12, 22:8–23:17. Ultimately, plaintiffs took the position that “any opportunity the 

government provides” could suffice to trigger the unconstitutional conditions analysis. Tr. at 

26.5

Under Iqbal, the Court need not accept the “naked assertion” that ITAC membership is 

beneficial, without any factual allegations to support it. 556 U.S. at 678 (2009); see also 

Twombly, 550 U.S. at 570 (a pleading must offer more than “labels and conclusions”). Plaintiffs 

 

5 Plaintiffs proffer little support for this expansive interpretation. Plaintiffs quote from the 

Eight Circuit’s opinion in Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000), which cited Perry and 

then stated in dicta in a footnote that “[t]his ‘unconstitutional conditions’ doctrine is not limited 

to valuable government benefits or even benefits at all.” Pls.’ Supp. Br. at 3, quoting Cuffley,

208 F.3d at 707 n.5. But Cuffley does address the question directly or elaborate on that 

observation in any meaningful way. Instead, the opinion goes on to say: “The Supreme Court 

has held that a legal entitlement to a position or program is not necessary in order to assert an 

unconstitutional conditions claim.” Cuffley, 208 F.3d at 707 n.5. This somewhat narrows the 

prior statement. In any event, Cuffley involved viewpoint suppression.
19

do not allege that committee membership is a form of public employment,6 and they do not

allege that ITAC membership has any economic consequences for the member, in the way that 

jobs, tax exemptions, unemployment benefits, or welfare payments confer clear economic 

benefits on the recipient. Pls.’ Opp. at 11–12; see also 75 Fed. Reg. 24584, 24585 (May 5, 2010) 

(“Members serve without compensation and are responsible for all expenses incurred to attend 

the meetings.”). In their opposition to defendants’ motion to dismiss, plaintiffs assert that 

membership would afford them special access to sensitive business, trade, and other information 

not available to the general public, Pls.’ Opp. at 4, but is this the sort of “valuable government 

benefit” contemplated by Perry? Plaintiffs concede that any non-public information that ITAC 

members receive access to may be used only for purposes of the committee, id. at 4 n.2, so that 

aspect of service cannot logically constitute the personal benefit. See supra note 3. Plaintiffs 

also submit that timely access to sensitive information is beneficial because it allows the member 

 

6 It may be that plaintiffs do not specifically characterize ITAC membership as government 

employment because treating plaintiffs like government employees would require the Court to 

subject the policy to less scrutiny than it would if plaintiffs were treated like ordinary citizens. 

See, e.g., Kinney v. Weaver, 367 F.3d 337, 357–60 (5th Cir. 2004). Because the government has 

no legitimate interest in denying a benefit to “ordinary citizens” on account of their speech on 

matters of public concern, there is no interest balancing involved in the First Amendment 

analysis for “ordinary citizen” cases. See Pickering v. Board of Educ., 391 U.S. 563, 568–69

(1968). Rather, the First Amendment is violated in “ordinary citizen” cases if the individual 

engaged in conduct protected by the First Amendment and the government took action against 

the person because of that protected conduct. Id. But “[i]n ‘governmental employee’ cases, by 

contrast, courts must be attentive to the ‘[t]he government's interest in achieving its goals as 

effectively and efficiently as possible,’ which interest ‘is elevated from a relatively subordinate 

interest when it acts as sovereign to a significant one when it acts as employer.’” Kinney, 367 

F.3d at 358, quoting Waters v. Churchill, 511 U.S. 661, 675, (1994) (plurality opinion). In cases 

involving retaliation against public employees for protected speech, therefore, courts are required 

to balance the government’s need “to find a compromise between the rights of public employees 

to free speech and of the government to regulate its workplace.” Hyland, 972 F.2d at 1137; see 

also Pickering, 391 U.S. at 573–74; Connick v. Myers, 461 U.S. 138, 145–54 (1983). 

Accordingly, they employ the “public concern” test, under which only speech that addresses a 

matter of public concern is protected from employment-related consequences. See Pickering,

391 U.S. at 572–74; Connick, 461 U.S. at 145–48.
20

to “identify and correct potential flaws” in trade agreements, which in turn “benefit[s] both the 

government and private industry.” Pls.’ Opp. at 4. But there too, plaintiffs are not alleging that 

this feature of service is beneficial to them. Indeed, the statute provides that ITAC members are 

selected to serve as representatives of certain industry sectors or functional areas. 19 U.S.C. § 

2155(c). So the benefit of providing good advice to the government inures to the industry that 

the member represents, and the country at large, but not to the member himself.7

So we are left with the assertions that membership is a “desirable” “resume-booster,”

that provides an “enjoyable experience” and “valuable expertise,” and affords special access to 

government decision-makers which might enable members to build relationships that could 

benefit them in representing lobbying clients in the future (and these allegations do not even 

appear in the complaint). Tr. at 21, 30. At bottom, plaintiffs seem to suggest that being able to 

tout their status as government insiders and advisors will enhance their ability to attract lobbying 

clients in the future and advance their goals.

But even if ITAC service is desirable because it burnishes a member’s professional 

credentials and fattens his or her rolodex (or today, his “Contacts”), the value of that opportunity

is not easily equated to the obvious worth of the governmental benefits that have been 

recognized by the Supreme Court. The loss of the ability to feature ITAC service on a resume 

does not come close to imposing the type of burden involved in losing one’s job, unemployment 

benefits, welfare payments, or tax exemptions. And it cannot be equated with the situation in 

 

7 In addition, the policy at issue here does not prevent the entity from being represented on 

an ITAC; it only prevents the entity from using a particular individual as its representative.
21

Davis, where the challenged law required the plaintiffs to “shoulder the specially and potentially 

significant burden,” of a fundraising disadvantage in an election campaign. 554 U.S. at 73.8

Plaintiffs have not identified any case in which a court has specifically found an 

uncompensated advisory position to be a “valuable government benefit” for purposes of the 

unconstitutional condition analysis. At the hearing, they likened the policy to withholding an 

unpaid government internship, Tr. at 22:1–7, 31:16–21, and in the supplemental pleading they 

filed after the hearing, they pointed the Court towards authorities according First Amendment 

protection to interns and state or municipal volunteers, Pls.’ Supp. Br. at 1–4. But the cases they 

cite are not Supreme Court or D.C. Circuit decisions, the language relied upon is generally found 

in dicta, the facts are distinguishable, and most of those courts either assumed without deciding 

that volunteers get First Amendment protection or they relied, at least in part, on state statutes 

that specifically required that the volunteers be treated as municipal employees. See, e.g., Barton 

v. Clancy, 632 F.3d 9, 24–26 (1st Cir. 2011) (surveying the case law, and then leaving the 

 

8 Plaintiffs also cite Dolan v. City of Tigard, 512 U.S. 374 (1994) for the proposition that 

the Supreme Court has recognized a building permit as a valuable governmental benefit for 

purposes of the unconstitutional conditions doctrine. See Pls.’ Opp. at 16. However, Dolan

concerned the government’s ability to exact conditions on a land use permit, which is governed 

by a different test than the one at issue here: it requires the court to look at the relationship 

between the conditions imposed and the benefit conferred by the permit. See Dolan, 512 U.S. at 

385–391; see also Lingle v. Chevron, USA Inc., 544 U.S. 528, 547 (2005) (referring to Dolan as 

involving a “special application of the ‘doctrine of unconstitutional conditions.’”). Moreover, 

even if the Court were to consider the Supreme Court’s analysis in Dolan to be applicable to this 

case, the benefit at issue in Dolan was a building permit that would have allowed the permit 

holder to greatly increase the value of his land. See 512 U.S. at 379–80. This type of economic 

benefit is not present in this case.
22

decision for another day);9 see also Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992) (applying 

the analytical framework for employees to an unpaid volunteer, because the volunteer position 

was “high level”; plaintiff had at times been compensated for the same work; plaintiff’s manager 

promised to exert his best efforts to find further funding for the position; and plaintiff had been 

expected to continue in the position until he could qualify for a paid position);10 Anderson v. 

McCotter, 100 F.3d 723, 727 (10th Cir. 1996) (treating intern, who received some compensation 

and college credit for her experience, as an employee, but observing in dicta that even if the 

Court considered the plaintiff to be a nonpaid volunteer, she would still be entitled to First 

Amendment protection).

There is something very different in nature between the volunteer positions involved in 

those cases and what we have here, which is much closer to the situation that gave the Supreme 

Court no qualms in Knight. For one thing, the plaintiffs in the cited cases were asking the courts 

to treat them as public employees, and the plaintiffs here are not. Second, those plaintiffs alleged 

specific facts that supported a finding that the positions were beneficial to them personally, while

 

9 “In sum, the Second, Seventh, and Ninth Circuits have found that volunteer positions are 

entitled to constitutional protection; however, these cases have relied in part, either directly or 

indirectly, on state statutes which mandate that such volunteers be treated as employees. The 

Tenth Circuit, albeit in dicta, has concluded that volunteers enjoy First Amendment protection 

without reliance on any such state statute. The Third Circuit, like this circuit, has assumed 

without deciding that a public volunteer position is a valuable government benefit, the 

deprivation of which can trigger First Amendment scrutiny. At the same time, no court has held 

that volunteers are not protected by the First Amendment.” Barton, 632 F.3d at 25–26.

10 It is true that the Hyland court also observed in dicta: “as a government volunteer, a 

person gains valuable experience and education in public administration[,] can make professional 

contacts,” and gains the satisfaction of making a contribution to society.” 972 F.2d at 1135–36.

However, as the Barton court documented, Hyland relied in part on another case – Janusaitis v. 

Middlebury Volunteer Fire Dep’t, 607 F.2d 17 (2d Cir. 1979) – and it failed to take into 

consideration that in Janusaitis, state law required that the volunteer position at issue be treated 

as equivalent to public employment for certain purposes. Id. at 21; see also Barton, 632 F.3d at 

25.
23

the plaintiffs here desire to serve in a representative capacity only. ITAC positions were created 

for the sole purpose of advising the government, see Compl. ¶ 28, citing 19 U.S.C. § 2155(d) 

(“The Trade Act established ITACs for the purpose of soliciting the ‘policy advice, technical 

advice and information, and advice on other factors’ from industries that have an interest in U.S. 

trade policy.”), and they do not have the characteristics of employment that these courts have 

found to be dispositive. And, unlike internship positions, ITAC membership slots are not created 

for the purpose of providing education or experience to the position holder. 

For all of these reasons, the Court concludes that ITAC membership is not a valuable 

government benefit for purposes of the Perry analysis.

b. The government’s policy does not deny ITAC membership on a basis that 

infringes plaintiffs’ First Amendment right to petition the government.

Furthermore, the cases plaintiffs rely upon are distinguishable because they all involve a 

penalty exacted or sanction imposed in retaliation for the exercise of a First Amendment right –

in each case, speech. The plaintiff in Hyland, who worked in the San Francisco Juvenile 

Probation Department, was terminated specifically because he circulated a memorandum to the 

judges supervising the juvenile court detailing alleged incompetence in the management of a

facility called Juvenile Hall. 972 F.2d at 1129. The plaintiff in Barton alleged that the mayor of 

Lynn, Massachusetts declined to reappoint him to his position on the Parks Commission in 

retaliation for his outspoken criticism of the mayor as the representative of the firefighters’ union 

and his participation in multiple lawsuits against the city. 632 F.3d at 11. Ms. Andersen, the 

intern at a facility managed by the Utah Department of Corrections, was fired the day after she 

appeared in a televised interview expressing her opinions about the Department’s announced 

changes to its sex-offender treatment program. Anderson, 100 F.3d at 725. There is nothing like 

that alleged here. First of all, this case does not involve speech. See Perry, 408 U.S. at 597 (The 
24

government “may not deny a benefit to a person on a basis that infringes his constitutionally 

protected interests – especially, his interest in freedom of speech.”) (emphasis added). And there 

is absolutely no allegation that plaintiffs were asked to leave or avoid the ITAC because of the 

content of anything they expressed, who they lobbied for, or any particular position they 

advanced on behalf of their clients.11 So even if the cases plaintiffs cite compel the conclusion 

that feeling good about one’s special access to the corridors of power elevates ITAC membership 

to the status of a valuable government benefit, the situation would not be analogous here because 

the cases they cite all involve the clear imposition of a penalty for engaging in particular acts of 

constitutionally protected expression.

Furthermore, Supreme Court precedent distinguishes between government actions that 

impose a penalty and those that deny a subsidy. See Regan, 461 U.S. at 545, 549–50. In Regan,

the Supreme Court upheld a federal law that barred section 501(c)(3) non-profit organizations 

from using tax-deductible contributions to support lobbying. Id. at 550–51. The Court found 

that Congress simply “chose not to subsidize lobbying as extensively as it chose to subsidize 

other activities that non-profit organizations undertake to promote the public welfare.” Id. at 

544. This did not violate the First Amendment because “Congress is not required by the First 

Amendment to subsidize lobbying.” Id. at 546. The Supreme Court reasoned that the 

government’s rule did not deny an organization “any independent benefit on account of its 

intention to lobby.” Id. at 545. It merely declined to confer the resources “necessary to realize 

all the advantages” of their First Amendment freedom. Id. at 550; see also Lyng v. Int’l Union, 

UAW, 485 U.S. 360, 369 (1988) (“[T]he statute challenged in this case requires no exaction from 

 

11 This also distinguishes the case from Cuffley, where the court found that the state was in 

fact penalizing the Ku Klux Klan for expressing its viewpoint when it turned down its adopt-ahighway application. 208 F.3d at 706 n.3, 711–12. 
25

any individual; it does not ‘coerce’ belief; and it does not require appellees to participate in 

political activities or support political views with which they disagree. It merely declines to 

extend additional food stamp assistance to striking individuals simply because the decision to 

strike inevitably leads to a decline in their income.”).12

Here, the government’s refusal to allow registered lobbyists to serve on ITACs may make

it more difficult for plaintiffs to make the kinds of contacts within the government that could 

improve their effectiveness as lobbyists and it may deny them the opportunity to tout those 

connections and enhance their business generation. But the government is not required to help 

plaintiffs “realize all the advantages” of their lobbying activity. The benefits that plaintiffs claim 

they are being denied – i.e., special access to government decision-makers and a chance to get 

the first peek at new policy initiatives – are perquisites of service that could make their lobbying

more effective and more lucrative. Although plaintiffs may aspire to obtain this privileged 

access in order to advance their clients’ interests and their own careers, Regan teaches that the 

First Amendment does not require the government to, in effect, underwrite plaintiffs’ petitioning 

activity by providing them with those advantages.

So, in the absence of any allegation of retaliatory action or penalty, what is the 

infringement of First Amendment rights that is alleged in this case? How were plaintiff’s rights

abridged? Count I alleges that “[t]he exclusion of federally registered lobbyists from ITACs 

substantially burdens First Amendment rights by denying the benefit of committee service to 

individuals whose exercise of the right to petition triggers the LDA’s registration requirement,

while also interfering with the ability of the entities that seek the services of these lobbyists to 

 

12 In Lyng, the Court found that although the government’s refusal to extend food stamp 

benefits made it more difficult for workers to maintain their strikes, “we are not inclined to hold 

that the right of association requires the Government to minimize that result by qualifying the 

strikers for food stamps.” Id. at 368. 
26

communicate their views to the government.” Compl. ¶ 44 (emphasis added). The second prong 

of that assertion does not allege any injury suffered by the plaintiffs. And the first part of the 

claim reveals the problem at the heart of this case. 

In Perry, the Supreme Court explained that what makes the conditioning of a benefit on 

the surrender of a right unconstitutional is the potential it has to inhibit or penalize constitutional 

expression. 408 U.S. at 597. But the allegations in plaintiffs’ complaint do not support the 

notion that the challenged restriction on ITAC service either penalize or inhibit First Amendment 

expression. Indeed it is plaintiffs’ own efforts to detail why the policy is under-inclusive,

ineffective, or simply bad policy that reveal why it is not unconstitutional.

The complaint expressly alleges that the policy does not curtail protected activity. 

“[I]ndividuals permitted to serve on ITACs are free to – and may well – engage in more lobbying 

activity than the registered lobbyists excluded from service on the ITACs.” Compl. ¶ 36. The 

complaint reports that 1,691 lobbyists deregistered between April and November 2009, but it 

goes on to allege that “these deregistrations likely do not reflect a reduction in lobbying activity, 

but rather a restructuring of lobbying activities to remain beneath the LDA’s twenty percent 

registration threshold.” Compl. ¶ 39.13 So, while the First Cause of Action insists that the 

government may not “condition ITAC membership on plaintiffs’ agreement to forego lobbying 

efforts . . . [,]” Compl. ¶ 49, plaintiffs have also asserted that in fact, the challenged policy does 

not do so. The complaint makes it clear that the statutory duty to register is not directly 

correlated with the amount, nature, or content of any lobbyist’s protected activity, see Compl. 

¶¶ 22, 36, and that those who lobby may indeed serve, Compl. ¶ 36.

 

13 The disclosure provisions in a prior version of this statue were upheld by the Supreme 

Court as constitutional in United States v. Harriss, 347 U.S. 612 (1954).
27

Because the government’s policy does not retaliate against or penalize plaintiffs for the 

exercise of their rights, and it does not abridge their right to petition the government, the Court 

finds that the government’s policy does not interfere with plaintiffs’ First Amendment rights and 

that it need not be subjected to heightened scrutiny.

III. The Policy Does Not Employ a Classification that Impinges Upon Plaintiffs’ 

Constitutional Rights as Alleged in Count Two.

Plaintiffs’ second cause of action advances the conclusory allegation that the policy 

“draws an unconstitutional distinction between those who exercise their right to petition the 

government and those who do not.” Compl. ¶ 53. Plaintiffs maintain that since the policy 

supposedly employs this suspect classification, it must be subjected to a heightened level of 

scrutiny. Pls.’ Opp. at 23; see Regan, 461 U.S. at 547. But this contention fails because the 

policy does not distinguish between those who exercise their right to petition the government and 

those who do not. An individual can petition the government endlessly on his or her own behalf 

and still secure a seat on an ITAC. More importantly, the complaint specifically alleges that one 

can freely engage in lobbying activity and still serve on the committee. Compl. ¶ 36

(“[I]ndividuals permitted to serve on ITACs are free to – and may well – engage in more 

lobbying activity than the registered lobbyists excluded from service on the ITACs.”). Thus, the 

facts set forth in the complaint do not support a conclusion that would trigger the higher level of 

scrutiny. The policy differentiates only between those whose lobbying activities trigger the 

statutory registration requirement and those whose activities do not, and plaintiffs do not allege 

and they did not argue that those triggering circumstances – as opposed to the lobbying activities

themselves – are constitutionally protected.

Moreover, the Court has already found that the government’s policy has no substantial 

impact on any fundamental interest, so it cannot find that it employs a classification that 
28

impinges upon a fundamental interest. See Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n,

460 U.S. 37, 54 (1983) (where the plaintiffs did not have a First Amendment right to access an 

interschool mail system, the denial of such access to them did not classify them in a way that 

impinged upon a fundamental interest: “We have rejected this contention when cast as a First 

Amendment argument, and it fares no better in equal protection garb”); Lyng, 485 U.S. at 370 

(where a statute has no substantial impact on a fundamental interest, the classification does not 

garner heightened scrutiny under an Equal Protection analysis); Knight, 465 U.S. at 291 

(same).14

Therefore, the Court will review the policy utilizing the rationality review approach.

IV. The Policy is Rationally Related to a Legitimate Governmental Interest.

Under rationality review, the government’s policy must be upheld if it is “rationally 

related to a legitimate government purpose.” Engquist v. Or. Dep’t of Agr’c, 553 U.S. 591, 608 

(2008). The rationale may be “based on rational speculation unsupported by evidence or 

empirical data” and “the burden is on the one attacking [the policy] to negate every conceivable 

basis which might support it . . . whether or not the basis has a foundation in the record.” Heller 

v. Doe by Doe, 509 U.S. 312, 320–21 (1993) (internal quotation marks and citations omitted).

The government policy may be upheld even where the “assumptions underlying the[] rationales

 

14 At the motions hearing in this case, counsel for plaintiffs directed the Court to Police 

Dep’t of the City of Chi. v. Mosley, 408 U.S. 92 (1972) for the proposition that even if the Court 

finds that heightened scrutiny is not warranted under the First Amendment, it should still find it 

warranted by the Equal Protection Clause of the Fifth Amendment. Tr. at 43. Mosely, however,

does not stand for that proposition. There, the Supreme Court did not even undergo a First 

Amendment analysis. Rather, it found through the Equal Protection analysis that the ordinance 

warranted heightened scrutiny because the classification was based on the content of picketers’ 

speech. Moreover, the Court suggested that it would have also found the ordinance to warrant 

heightened scrutiny under the First Amendment. See Mosley, 408 U.S. at 96 (“Necessarily, then, 

under the Equal Protection Clause, not to mention the First Amendment itself, government may 

not grant the use of a forum to people whose views it finds acceptable, but deny use to those 

wishing to express less favored or more controversial views.”).
29

may be erroneous . . . . [T]he very fact that they are arguable is sufficient, on rational basis 

review, to immunize the . . . choice from constitutional challenge.” Id. at 333 (internal quotation 

marks, citations, and alterations omitted).

The government puts forward three rationales for its policy. It argues that:

(1) The policy seeks to reduce the influence of special interests in government; 

(2) The policy is designed to increase public confidence in government, which is under 

the threat of being undermined by the influence of special interests in government; and

(3) Federal advisory committees and commissions can aid the government’s 

policymaking more effectively if their members are not individuals from whom the 

government already routinely receives input and who already have significant access to 

government officials.

Defs.’ Mem. at 36–38.

Plaintiffs do not dispute that reducing the influence of special interests in government is a 

legitimate state purpose. See United States v. Harriss, 347 U.S. 612, 625–26 (1954) (preventing 

the “voice of the people” from being “drowned out by the voice of special interest groups 

seeking favored treatment while masquerading as proponents of the public weal” is a vital public 

interest); see also Nat’l Ass’n of Mnfrs. v. Taylor, 582 F.3d 1, 14 (D.C. Cir. 2009), quoting 

Buckley v. Valeo, 424 U.S. 1, 66 (1976) (governmental interests are particularly important where 

“‘the free functioning of our national institutions’ is involved”). Rather, they challenge the 

notion that the policy is properly crafted to effectuate its purpose. See Compl. ¶¶ 36–41. The 

Court concludes that the government’s first rationale satisfies rational basis review.15

 

15 Plaintiffs also argue that rational basis review might not be appropriate at the motion to 

dismiss stage because it “often involves significant factual analysis.” Pls.’ Opp. at 22. In this 

case, however, since the Court finds a rational basis for the policy based on the facts alleged in

the complaint, with all inferences drawn in the favor of plaintiffs, there is no tension between 

rational basis review and the Rule 12(b)(6) standard. See Iqbal, 556 U.S. at 679.
30

The government reasonably could have believed federally registered lobbyists on ITACs 

would meet and form relationships with government policymakers, which they could then 

exploit to gain special influence for their clients. It was also reasonable for the government to 

single out federally registered lobbyists as particularly captured by special interests because 

those individuals engage in a substantial amount of lobbying for at least one client, and are paid 

for their services. Plaintiffs are correct that the policy does not exclude all individuals who 

engage in lobbying the government on behalf of special interests because the lobbying activities 

of some individuals will not trigger registration under the LDA. Compl. ¶ 36. However, those 

that the policy does exclude are all engaged in lobbying on behalf of special interests. So, the 

government could reasonably believe that barring at least those individuals from serving would 

reduce the influence of individuals who engage in a substantial amount of paid lobbying for 

clients. This in turn would reduce the influence of special interests in government by some

margin. Underinclusiveness is not a basis for invalidating a statute under rational basis review 

because Congress “may choose to proceed one step at a time, applying remedies to one phase of 

one field while neglecting the others.” Kaemmerling v. Lappin, 553 F.3d 669, 685 (D.C. Cir. 

2008).

Furthermore, it is insignificant that some federally registered lobbyists may restructure 

their lobbying activities to remain beneath the LDA’s twenty percent registration threshold or 

that the government’s allegedly lax enforcement of LDA registration requirements may lead bad 

actors to flout the law by declining to register even though they meet the registration 

requirements. See Compl. ¶¶ 39–40. The government’s rational basis for enacting its policy is 

not overcome by the possibility that “creative and determined lobbyists [may] succeed in finding 

and exploiting another loophole.” Taylor, 582 F.3d at 18.
31

The Court need only find one of plaintiffs’ rationales sufficient. However, it notes that 

the policy advances the second purpose for the same reasons that it at least partially 

accomplishes the first purpose. And indeed, plaintiffs’ argument that ITAC service is a benefit 

because it helps them market themselves as real government insiders just proves the point that 

the government could reasonably believe that excluding lobbyists from ITAC services would 

increase public confidence that government is not being overtaken by insiders.

V. CONCLUSION

Because the DOC and USTR policy does not offend the Constitution, and it is rationally 

related to a legitimate government aim, the Court will grant defendants’ motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(6). A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: September 26, 2012