[00:00:00] Speaker 03:
Case number 19-5337, vote vets action fund abelant versus United States Department of Veterans Affairs and Robert Wilkie in his official capacity as Secretary of the United States Department of Veterans Affairs.

[00:00:15] Speaker 03:
Ms.

[00:00:15] Speaker 03:
Jones for the abelant, Mr. Winick for the appellees.

[00:00:20] Speaker 01:
Ms.

[00:00:20] Speaker 01:
Jones.

[00:00:22] Speaker 04:
Thank you, Your Honor, and may it please the court.

[00:00:24] Speaker 04:
Carianne Jones on behalf of appellant vote vets.

[00:00:28] Speaker 04:
Your Honors, the issue in this case is this.

[00:00:30] Speaker 04:
What are the reasonable inferences to be drawn from the many, many factual allegations set forth in Vote Bet's amended complaint showing an extensive coordinated and continuous relationship between three private individuals who operated as a group to advise the Department of Veterans Affairs on a variety of policy matters over the course of a year and a half?

[00:00:56] Speaker 04:
Appellees and the district court below would turn this case into one of summary judgment, but it is not.

[00:01:01] Speaker 04:
VoteBets was not required at this stage of the litigation to prove up its claims.

[00:01:05] Speaker 04:
It was not required to make a probable case.

[00:01:08] Speaker 04:
It was required to make out a plausible case, and plausible taking all facts as true in the complaint and drawing all reasonable inferences in VoteBets' favor.

[00:01:19] Speaker 04:
Now, Your Honor, I think it's important to start and really focus on what makes this case so unique.

[00:01:25] Speaker 04:
This is not a case

[00:01:26] Speaker 04:
like the one that the Supreme Court was concerned about in Public Citizen involving one-off consultations.

[00:01:34] Speaker 04:
This is also not a case like what this court was faced with in AAPS, where it described a group consisting of hundreds of different participants who didn't seem to really interact with each other and what this court called more of a horde than a committee.

[00:01:49] Speaker 04:
Instead, what you have here is three private individuals who describe themselves operating as a team, as a group,

[00:01:56] Speaker 04:
who the White House describes operating as a team, as a group, who the department describes operating as a team, as a group, working in close coordination with each other to advise the department over the course of 18 months.

[00:02:09] Speaker 04:
This is truly a unique case.

[00:02:11] Speaker 04:
And a unique case, Your Honor, that I might point out that really cuts to the heart of FACA.

[00:02:16] Speaker 04:
FACA was passed because Congress was concerned that the executive branch not be allowed to behind closed doors seek this sort of formalized advice

[00:02:26] Speaker 04:
from private individuals.

[00:02:28] Speaker 04:
This is precisely that kind of case.

[00:02:30] Speaker 04:
This is consistent coordinated, extensive, uh, interactions between a group of the same, the same private individuals, the same three guys operating together to provide group advice to the department.

[00:02:43] Speaker 00:
How do we know, uh, that the president or the agency established this group from, from what you have alleged in your complaint?

[00:02:54] Speaker 04:
Sure, I think there are a number of facts that make it at least a reasonable inference that the president operating in coordination with the department established this group.

[00:03:02] Speaker 04:
And, of course, the established, the de facto factor, excuse me, the de facto FACA doctrine, really the totality of the circumstances, and particularly in the established context, courts look at, did the federal government conceive of the need for the group?

[00:03:16] Speaker 04:
Did they select the members?

[00:03:17] Speaker 04:
Did they task the group with their agenda?

[00:03:20] Speaker 04:
I think you see that in a number of ways.

[00:03:22] Speaker 04:
Our complaint alleges, of course, that President Trump met with these three individuals at the White House to discuss Veterans Affairs policy.

[00:03:29] Speaker 04:
He then announced shortly thereafter in a press conference that he was going to set up a group to advise the VA.

[00:03:36] Speaker 04:
Thereafter, Secretary Shulkin met with these three individuals and followed up with an email.

[00:03:42] Speaker 04:
The subject line was group meeting, in which he thanked the group of individuals for their willingness to help

[00:03:50] Speaker 04:
work with the VA.

[00:03:52] Speaker 04:
And then you see a course of conduct, 18 months of these same three individuals working very closely and coordinated with the department to actually advise it.

[00:04:00] Speaker 04:
So I think taking the totality of the circumstances and looking at all of the facts in context, it very much is at least plausible, it is at least reasonable to think that President Trump said, I'm going to set up a group, that group starts to operate and the reasonable inference is that he did in fact follow through on his intention to do so.

[00:04:20] Speaker 00:
Well, you cited in your complaint a ProPublica article.

[00:04:27] Speaker 00:
And that article said that Perlmutter set up the group, or at least fairly read.

[00:04:35] Speaker 00:
That's what it seems to say.

[00:04:37] Speaker 00:
So if that's the case, can't we use that article to help interpret what

[00:04:49] Speaker 00:
the plausible, I guess, what we can reasonably infer from your factual allegations since you cited it?

[00:05:00] Speaker 04:
Well, I think what that article makes clear is that it was certainly Ike Perlmutter's relationship with President Trump that sort of enabled this group to be brought into being.

[00:05:12] Speaker 04:
And that's acknowledged in the joint statement that the three individuals issued.

[00:05:16] Speaker 04:
But this is certainly not a case like in Food Chemical News or in Bird where there's no involvement from the federal government in the establishment of the council.

[00:05:26] Speaker 04:
Even if Mike Perlmutter played a significant role perhaps in talking with President Trump about what this might look like, the federal government, our complaint establishes or alleges facts that do make clear that the federal government did have at least some involvement and in fact a significant involvement in conceiving of the need for the group

[00:05:46] Speaker 04:
selecting the members and sort of starting to group out on its task of advising the VA.

[00:05:52] Speaker 04:
I'd also point out, Your Honors, that, of course, we don't have to prove that the federal government established the council.

[00:05:59] Speaker 04:
We could also prove in the alternative that the federal government utilized the council.

[00:06:03] Speaker 04:
And we similarly think we've alleged sufficient facts to make that case plausible as well.

[00:06:10] Speaker 04:
Of course, utilize takes on a sort of unique

[00:06:13] Speaker 04:
context or a unique definition in the FACA context, as this court has described it citing public citizen, the question is whether the group is so closely intertwined with the federal government as to be amenable to strict control and management.

[00:06:27] Speaker 04:
But in understanding that standard, I think it's important to take a step back and look at the reasoning of public citizen.

[00:06:33] Speaker 04:
And what public citizen says is that utilize is essentially an extension of the term established.

[00:06:39] Speaker 04:
And it's meant

[00:06:40] Speaker 04:
It's meant in such a way so that FACA covers groups that are not only created by the federal government, but also created for the federal government.

[00:06:49] Speaker 04:
As the Supreme Court and public citizen sort of explains, the question is, did the government sort of permeate the group?

[00:06:57] Speaker 04:
I think that's absolutely the case here.

[00:06:58] Speaker 04:
There's no question that this group existed solely for the purpose of advising the Department of Veterans Affairs during this 18 months.

[00:07:06] Speaker 04:
This is very much unlike

[00:07:08] Speaker 04:
the ABA committee, which of course is a separate long-standing institution that has its own funding structures and its own priorities and its own work process flows.

[00:07:16] Speaker 04:
This is a group that was closely intertwined with the department.

[00:07:20] Speaker 04:
The department in... I'm sorry, Your Honor.

[00:07:23] Speaker 02:
I didn't mean to interrupt you, but I had a question.

[00:07:27] Speaker 02:
You mentioned a couple of times that this group functioned for 18 months, and I wondered whether it's finished and whether, if that's the case, do we have any mootness issues?

[00:07:38] Speaker 04:
Yes, Your Honor.

[00:07:40] Speaker 04:
To the best of our knowledge, yes, the group stopped functioning, I think, back in the middle of 2018, to our best guess.

[00:07:50] Speaker 04:
However, this court made clear in Comic v. Gore that Section 10 records claims under FACA are not mooted by the termination of an advisory committee.

[00:08:00] Speaker 04:
So we do think very much that our Section 10 records claims are very much alive.

[00:08:04] Speaker 01:
So if they provided the documents, that would moot the case?

[00:08:08] Speaker 04:
I think that our only claim for relief that remains live are the outstanding documents claims, that's correct.

[00:08:15] Speaker 01:
I'm sorry, go ahead.

[00:08:17] Speaker 01:
I didn't mean to interrupt.

[00:08:18] Speaker 01:
I did mean, but it's only because of Zoom.

[00:08:20] Speaker 01:
Sorry.

[00:08:21] Speaker 04:
No problem, Your Honor.

[00:08:25] Speaker 04:
I would just point out that there's been no contention here that the department has released the records it's required to release.

[00:08:31] Speaker 04:
And so I think absolutely that remains.

[00:08:33] Speaker 01:
What's left after what you've already gotten under FOIA?

[00:08:37] Speaker 04:
Well, Your Honor, first of all, I point out that just because the documents have been released to us under FOIA, the government's responsibility here is to make them public.

[00:08:49] Speaker 04:
I believe some of the documents have been put on the department's reading room, or at least were for a time, but it's not clear that they all have been and that they all are still there.

[00:08:58] Speaker 04:
I'd also point out that through FOIA, the department has searched

[00:09:03] Speaker 04:
the emails of government officials and the private emails of Secretary Shulkin.

[00:09:08] Speaker 04:
The government has never, to this date, searched the emails of these private individuals or seen what documents might have been shared amongst those private individuals.

[00:09:17] Speaker 04:
And that very much could turn up documents that would come within Section 10B's disclosure requirements.

[00:09:25] Speaker 02:
I had a question about just the basic theory

[00:09:31] Speaker 02:
And this is, as you mentioned, kind of a different fact pattern.

[00:09:35] Speaker 02:
But it struck me that under Section 9, 5 USC Section 9, the statute says no advisory committee shall be established unless it's specifically authorized by statute or by the president or by an agency.

[00:09:59] Speaker 02:
In a way, I mean, the analytic effort of the briefing is to fit it in, or the blue briefing is to fit it into FACA and basically say it is an advisory committee and therefore is held to the requirements.

[00:10:13] Speaker 02:
But in a way, the allegations suggest a more fundamental problem, which is that this group operating as it's alleged to have operated would be unlawful.

[00:10:25] Speaker 02:
It isn't.

[00:10:25] Speaker 02:
It could not be a lawfully functioning

[00:10:30] Speaker 02:
FACA group.

[00:10:31] Speaker 02:
And so I'm just trying to make sense of how to understand that and how to understand your briefing in light of that.

[00:10:40] Speaker 04:
I do stand over my time and just want to make sure that I can quickly answer.

[00:10:43] Speaker 04:
So yes, I think the issue here is when you have the government creating behind closed doors a group to work extensively to advise it, as has happened here,

[00:11:00] Speaker 04:
That may raise significant FACA concerns and FACA violations as we allege, but that doesn't, that should not be allowed to sort of cover the government or it shouldn't mean that the government didn't need to comply with FACA.

[00:11:15] Speaker 04:
I think what AAPS looks at is, is this the, this is the fact of FACA doctrine.

[00:11:19] Speaker 04:
AAPS says, is this the kind of formal group that you would expect the government to only utilize or only work with if it's operating through the appropriate FACA channels?

[00:11:30] Speaker 04:
And APS also makes clear that FACA should not be read in a way as to become easy to avoid.

[00:11:37] Speaker 04:
And if it were the case that the government could avoid the requirements of FACA simply by setting up a FACA and giving it so much authority and operating in such an unlawful manner, that would essentially render FACA a nullity.

[00:11:49] Speaker 04:
So I'd urge the court not to accept that reading to find that this was a de facto FACA advisory committee and to allow the case to proceed on that.

[00:11:56] Speaker 04:
Thank you.

[00:11:58] Speaker 01:
For the questions from the panel,

[00:12:00] Speaker 01:
OK, in that case, we'll take this turn to Mr. Winnick.

[00:12:05] Speaker 05:
Good morning, Your Honor.

[00:12:06] Speaker 05:
May it please the court, Daniel Winnick for the government.

[00:12:09] Speaker 05:
The complaint doesn't come close to alleging a group with the sort of organized structure that this court described in AAPS as a key characteristic of an advisory committee.

[00:12:18] Speaker 05:
And even if the alleged group was structured as an advisory committee, the complaint doesn't plausibly allege that it was established by the government.

[00:12:26] Speaker 05:
Let me start with the nature of the so-called counsel.

[00:12:28] Speaker 05:
As the Supreme Court explained in Public Citizen FACA was not meant, quote, to cover every formal and informal consultation between the president or an executive agency and group rendering advice.

[00:12:40] Speaker 05:
It was meant instead to address the proliferation of a specific type of group rendering advice to the executive branch, the proverbial blue ribbon commission.

[00:12:48] Speaker 05:
And to avoid constitutional concerns, the Supreme Court and this court have construed FACA as limited to those types of groups.

[00:12:54] Speaker 05:
as the court put it, in AAPS groups that have, quote, an organized structure, a fixed membership, and a specific purpose.

[00:13:01] Speaker 05:
That's why, for example, in the on-bank decision in Cheney, the court described the right to vote on proposals or to veto a consensus as a hallmark of membership on a committee.

[00:13:11] Speaker 05:
The court said it wasn't enough to simply sort of participate in meetings or be there.

[00:13:16] Speaker 05:
What's alleged here is nothing we submit in the neighborhood of that sort of structure.

[00:13:21] Speaker 05:
When the complaint here describes a meeting of the so-called council, what it's generally talking about is a phone call or a meal or a conversation of some sort between a VA official and one or two of the individuals alleged to have composed the council in which those one or two people gave some advice.

[00:13:38] Speaker 05:
And plaintiff is suggesting that FACA applies to virtually every interaction like that.

[00:13:43] Speaker 01:
Mr. Wenk, assume for purposes of this question that there

[00:13:47] Speaker 01:
whatever degree of formality is required that there is a group.

[00:13:54] Speaker 01:
Why isn't this combination of allegations sufficient for plausibility that it was established by the government?

[00:14:03] Speaker 01:
So you have an allegation supported by a

[00:14:09] Speaker 01:
Boston Globe article, which seems more than plausible.

[00:14:14] Speaker 01:
The information came from Sean Spicer.

[00:14:17] Speaker 01:
And that is that the president met with advisors about advising the Veterans Affairs Department and that all three of these people were in the meeting, in the room.

[00:14:33] Speaker 01:
Then the president announces that

[00:14:39] Speaker 01:
We're gonna be talking to a few people also to help David, at that point, a putative secretary.

[00:14:48] Speaker 01:
We're going to set up a group and then mentions Ike Perlmutter.

[00:14:54] Speaker 01:
Why isn't that enough?

[00:14:57] Speaker 01:
I appreciate this is not enough for summary judgment, but why isn't that enough for it to be plausible that the president established this group?

[00:15:07] Speaker 01:
assuming that the group is sufficiently formal in the way that you were discussing.

[00:15:13] Speaker 05:
Understood.

[00:15:13] Speaker 05:
So two distinctions, I think, with the sort of narrative as recounted in your honest question.

[00:15:19] Speaker 05:
First, the December 2016 meeting between the president-elect and a group of advisors on veterans issues.

[00:15:29] Speaker 05:
was a meeting that, according to the complaint and the public reporting, Perlmutter and Moskowitz and Sherman helped to convene.

[00:15:35] Speaker 05:
But it was a meeting between the president-elect and a group of healthcare executives, principally.

[00:15:40] Speaker 05:
And when the president-elect spoke the next month in a sort of vague way about creating a group to advise the VA secretary, what he described was, again, that same sort of group, a group principally consisting of healthcare executives and doctors.

[00:15:56] Speaker 05:
in which Eich Perlmutter, he didn't mention the other two, had been involved in the effort to create such a group, again, playing, according to the complaint, a convening role.

[00:16:08] Speaker 05:
So if this were a group that were like the one described in the press conference, it might be a closer case, but fundamentally, this isn't the group described.

[00:16:19] Speaker 01:
Well, that's a question.

[00:16:22] Speaker 01:
It doesn't matter whether it's the only plausible possibility.

[00:16:28] Speaker 01:
I take your point that there's another plausible possibility here.

[00:16:32] Speaker 01:
But, and that would certainly get you past summary, you know, stop at summary judgment if that was all there was, but why doesn't this at least get the complaint, get past the complaint?

[00:16:43] Speaker 01:
Your argument is plausible, but it's also plausible that the group he was referring to included these three people and that it was set up, as he said, to advise David.

[00:16:54] Speaker 01:
So,

[00:16:57] Speaker 01:
It's just a question of plausibility.

[00:16:58] Speaker 01:
That's all that we're at the stage now, as opposing counsel points out.

[00:17:04] Speaker 05:
Understood.

[00:17:05] Speaker 05:
So there are basically two reasons.

[00:17:07] Speaker 05:
The first, I think, is that there simply isn't enough factual basis in the complaint to make the inference that plaintiff is suggesting non-specular.

[00:17:16] Speaker 05:
Really, it is

[00:17:17] Speaker 05:
they say the president named Perlmutter the chair of the committee in Moscow.

[00:17:21] Speaker 01:
Okay, I understand, but that's a legal conclusion from the facts.

[00:17:26] Speaker 01:
But the question is, are the facts sufficiently plausible to indicate that the president or the president in combination with David has set this up?

[00:17:37] Speaker 01:
He said, we're going to create a group.

[00:17:39] Speaker 05:
Well, so first of all, your honor, I want to make it clear that it's important whether it was the president or the president in combination with Perlmutter setting up this group.

[00:17:49] Speaker 01:
No, I didn't mean with combination with Perlmutter.

[00:17:51] Speaker 05:
You mean with Secretary Shulman?

[00:17:53] Speaker 01:
That's the David I'm talking about.

[00:17:54] Speaker 01:
OK.

[00:17:54] Speaker 01:
Is Perlmutter's name David also?

[00:17:56] Speaker 01:
I don't think so.

[00:17:57] Speaker 05:
No, sorry, your honor.

[00:17:58] Speaker 01:
That's all right.

[00:17:59] Speaker 01:
And I don't mean to refer to David as like I know him.

[00:18:02] Speaker 01:
No, no.

[00:18:02] Speaker 01:
But there's a president referred to him that way.

[00:18:05] Speaker 05:
That's right.

[00:18:05] Speaker 05:
But again, I mean, the point I was meeting was that

[00:18:09] Speaker 05:
It is crucial under this court's case law, not only that the government in some sort of loose way conceive of the need for a group in the way that plaintiff was suggesting, but that the government actually appoints the three members, and we don't think.

[00:18:22] Speaker 05:
we think, in fact, the ProPublica article in which Planner for Lies defeats that notion.

[00:18:26] Speaker 05:
But the second response I had to your honor is, I'm sorry.

[00:18:29] Speaker 02:
I don't want to interrupt the flow.

[00:18:30] Speaker 02:
Go ahead.

[00:18:31] Speaker 05:
Just briefly, the second response is that Iqbal also says that even where a narrative might otherwise be a plausible inference from the complaint, its plausibility can be defeated by the presence of an obvious alternative explanation, which we think is present here as documented in the statement of the three men.

[00:18:48] Speaker 05:
I'm sorry, Judge Pillard.

[00:18:49] Speaker 02:
No.

[00:18:50] Speaker 02:
I apologize for interrupting.

[00:18:51] Speaker 02:
So the district court, and I'm on JA-64, concluded that the allegations throughout the amended complaint that the three men exercised influence over the department.

[00:19:04] Speaker 02:
And I know this is on utilize and not on establish, but to me the two are kind of cross-cutting.

[00:19:12] Speaker 02:
The allegations that they exercise influence of the department undermines any reasonable inference that the defendants that the defendants the department exercise actual management and control over them.

[00:19:22] Speaker 02:
And I wonder if you're defending that reasoning and the reason that I raised it in connection with what what you and and

[00:19:31] Speaker 02:
We're just discussing is that there are questions sort of who took the initiative and and one way of looking at the facts alleged here is that it's actually even worse, you know that the utilized and established as you know, do we even have the kind of relationship between

[00:19:49] Speaker 02:
the government and the private actors that implicates FACA.

[00:19:54] Speaker 02:
And here, it seems like it's gone even beyond the cases that we've seen before in the sense that these folks, you know, let's say, let's say, and I'm not saying that I think that these facts allege it, but this is, I think, the theory underlying the complaint is

[00:20:11] Speaker 02:
Three people get together, they say, we've got a lot to contribute.

[00:20:15] Speaker 02:
They approach the president, the president says, gee, I think that's a great idea.

[00:20:19] Speaker 02:
And the three people are kind of an, you know, external

[00:20:27] Speaker 02:
group that then has a controlling force over an agency.

[00:20:34] Speaker 02:
And putting aside whether you think these allegations rise to that level and plausibly allege that, is that kind of activity something that implicates FACA or not?

[00:20:49] Speaker 05:
It's not, Your Honor.

[00:20:50] Speaker 05:
FACA was meant to address a specific type of group, again, the sort of proverbial blue ribbon commission.

[00:20:57] Speaker 05:
What Your Honor is describing, I understand how it might be concerning in a policy sense.

[00:21:04] Speaker 05:
It might implicate other sources of law, such as ethics laws or something like that.

[00:21:10] Speaker 05:
But it's not the sort of thing FACA was meant to address.

[00:21:14] Speaker 05:
As Your Honor is hypothesizing, this is a group that was exercising undue influence

[00:21:20] Speaker 05:
is almost definitionally not an advisory committee, certainly not one that is utilized by the government within the meaning of the utilized analysis.

[00:21:28] Speaker 05:
In other words, one that's operating under the close management or control of the agency or within parameters set by the agency.

[00:21:35] Speaker 02:
So just to interject there, it seems like one way of understanding the close management and control arising in the context of the ABA advising on the qualifications of nominees is to sort of differentiate

[00:21:51] Speaker 02:
an outside entity just giving advice, take it or leave it.

[00:21:57] Speaker 02:
Here's our white paper.

[00:21:58] Speaker 02:
We think you should reorganize the VA this way.

[00:22:01] Speaker 02:
We think you should, these judges are qualified or not in these ways.

[00:22:05] Speaker 02:
And it's kind of a, here's this product, take it or leave it.

[00:22:10] Speaker 02:
And what the public citizen analysis is saying is that's okay.

[00:22:15] Speaker 02:
What's not okay is if the government is saying, here, let me outsource this.

[00:22:21] Speaker 02:
to the ABA, we want you to look at these various criteria, and you're going to tell us to meet our needs, whether these people are qualified or not.

[00:22:29] Speaker 02:
And the latter seems to me what public citizen is concerned about when it's talking about direction and control.

[00:22:35] Speaker 02:
But if the government just said, we don't even have criteria, ABA, you tell us what judges we should pick, and actually what criteria we should use, it seems to me the abdication of

[00:22:51] Speaker 02:
of control and direction by the government in that situation wouldn't take it out of FACA, which is a little bit what I take your argument to be suggesting, but rather put it more squarely in under FACA.

[00:23:09] Speaker 05:
So I think that if the group is of the sort that FACA was meant to cover, then certainly the exercise of undue influence by such a group

[00:23:19] Speaker 05:
does implicate FACA.

[00:23:20] Speaker 05:
But our central point here is that this just isn't the sort of group FACA was meant to cover.

[00:23:25] Speaker 05:
And I would note, as this court has said in AAPS and Cheney, and as the Supreme Court said in Public Citizen, it is both a matter of long historical practice and close to the heart of the constitutional protection of the executive for the president and other senior executive officials to be able to solicit advice on any subjects that they wish from people outside government.

[00:23:49] Speaker 05:
If, if, as plaintiff alleges, the president said, you know, I want, I want I pro mutter to provide lots of advice on veterans affairs and I want my secretary of the VA to take his advice quite seriously.

[00:24:00] Speaker 05:
not literally to be sort of bound by it in a legal sense, but to hear it.

[00:24:04] Speaker 05:
And I consider him a wise advisor.

[00:24:07] Speaker 05:
That is exactly the sort of thing the president is constitutionally empowered to do.

[00:24:12] Speaker 02:
And does it not bring it into FACA if he says, I want Ike and these other two, I want them to be a group and interface with

[00:24:27] Speaker 02:
doctors and healthcare professionals decide some priorities for us and come back to me with that.

[00:24:38] Speaker 02:
Is that similarly just the president drawing on outside advice in a way that doesn't implicate FACA?

[00:24:47] Speaker 05:
I think that's correct.

[00:24:48] Speaker 05:
I mean, to the extent that it

[00:24:50] Speaker 05:
What Gruner is highlighting is that it's a group and not a single individual.

[00:24:53] Speaker 05:
I think, again, if we were applying the structure analysis of AAPS to look at whether this was the type of entity that FACA was meant to cover, then the fact that there's more than one person would be a prerequisite.

[00:25:07] Speaker 05:
But it's not sufficient that there be more than one person.

[00:25:10] Speaker 05:
They have to be, as the court said in Cheney, they have to be voting on things.

[00:25:13] Speaker 05:
They have to be coming to formal consensus.

[00:25:15] Speaker 05:
The fact that you have two people or three people instead of one person providing advice as individuals, or even in some sort of loosely affiliated sense, isn't enough to be covered by FACA.

[00:25:27] Speaker 05:
And on the broader question of whether Congress was sort of meaning to, in a kind of broad way, subject the whole provision of advice from outsiders to insiders,

[00:25:39] Speaker 05:
to strict requirements.

[00:25:42] Speaker 05:
And what the court said in Public Citizen, I think, usefully is there's considerable evidence, and I'm quoting, that Congress sought nothing more than stricter compliance with reporting and other requirements, which were made more stringent, by advisory committees already covered by a prior executive order and, quote, similar treatment of a small class of publicly funded groups created by the president.

[00:26:01] Speaker 05:
In other words, it was trying to impose stricter requirements and the heightened enforcement of those requirements for a small class of groups, a particular type

[00:26:09] Speaker 05:
It wasn't meaning to impose stringent procedural requirements and sunshine on all kinds of the provision of advice to people in government, whether by one person or, as Ron suggested, a small group of people.

[00:26:24] Speaker 05:
Had it done so, I think both public citizen in this court's cases have suggested real constitutional concerns would arise.

[00:26:33] Speaker 01:
All right.

[00:26:34] Speaker 01:
No further questions?

[00:26:37] Speaker 01:
Ms.

[00:26:38] Speaker 01:
Jones, do you have a chance for rebuttal?

[00:26:40] Speaker 01:
Why don't you take two minutes.

[00:26:42] Speaker 04:
Thank you, your honor.

[00:26:43] Speaker 04:
I just want to make a couple of quick points.

[00:26:45] Speaker 04:
First of all, opposing counsel raises Cheney several times and says that this wasn't the kind of committee that would be considered advisory committee under Cheney.

[00:26:55] Speaker 04:
Cheney was very specifically related to a White House advisory committee.

[00:26:59] Speaker 04:
And the court in Cheney was clear that the reason it was imposing this voter veto standard was because the president

[00:27:07] Speaker 04:
sort of does have this understanding, is understood to have a little bit more leeway to seek advice.

[00:27:14] Speaker 04:
And so the standard needed to be higher.

[00:27:16] Speaker 04:
No court in this circuit or any circuit from my knowledge has ever applied that heightened voter veto standard to advisory committees that are principally advising the department.

[00:27:27] Speaker 04:
And I also think just that principally advising the department point is important.

[00:27:33] Speaker 04:
Opposing counsel, again, says this isn't the kind of committee

[00:27:36] Speaker 04:
was meant to be covered by FACA and the president has a lot of authority to or a lot of leeway to seek advice.

[00:27:42] Speaker 04:
This wasn't principally a group that was advising the president.

[00:27:46] Speaker 04:
This was a group that was advising the department and working with the department officials daily to advise them on not just one matter, but a whole number of very important matters, including being involved in a procurement process for a multi-billion dollar contract that the department was in the process of developing.

[00:28:06] Speaker 04:
this is exactly the kind of thing that fuck was meant to to to prohibit.

[00:28:11] Speaker 02:
So what are the, what are the minimum criteria in the sense of is it the group character?

[00:28:18] Speaker 02:
Is it the ongoing nature?

[00:28:20] Speaker 02:
Is it the apparently, um,

[00:28:27] Speaker 02:
Maybe it's the fact that these people seem to have so much authority because they were understood to be blessed by, at least as the allegations have it, blessed by the president, which again is a little bit of an awkward fit with some of the doctrine on utilization.

[00:28:45] Speaker 02:
What are the minimum hallmarks in your view?

[00:28:51] Speaker 04:
Well, I think, you know, I think the minimum hallmarks are probably all of the above.

[00:28:55] Speaker 04:
I think what you have here is a fairly egregious case involving the same three individuals operating as a group, advising continuously over the course of 18 months and advising on important issues and seeming to wield a significant amount of authority.

[00:29:12] Speaker 04:
I think that that doesn't make this not an advisory committee.

[00:29:16] Speaker 04:
That just makes this an illegally operating advisory committee.

[00:29:19] Speaker 04:
I do think, again, it's this consistent, coordinated, ongoing relationship, the precise kind of thing that FACA was passed to prohibit the unfettered use of groups of private advisors by the executive branch outside of any scrutiny by Congress or the public.

[00:29:42] Speaker 01:
The questions from the bench?

[00:29:43] Speaker 01:
All right, we'll take this matter under advisement.

[00:29:45] Speaker 01:
We appreciate this is a very, very nicely argued and we'd like the tenor of the argument as well.

[00:29:53] Speaker 01:
So I appreciate that from both of you.

[00:29:55] Speaker 01:
All right, take the matter under submission.