(AP Photo/Andrew Harnik)
Appeals Court Vacates Lower Court Ruling, Allows Case to Proceed
The appeals court found that “VoteVets’ allegations suffice to raise the inference that the federal government — either the Department of Veterans Affairs or President Trump himself — established the Council.” The circuit court remanded the matter back to the district court to proceed “through discovery and summary judgment or trial.”Learn more
The Trump Administration tapped three members of Mar-a-Lago, President Trump’s golf and social club, to provide advice and recommendations to the Department of Veterans Affairs on issues of critical importance to America’s veterans. Marvel Entertainment CEO Ike Perlmutter, Palm Beach concierge doctor Bruce Moskowitz, and financial consultant Marc Sherman have no relevant experience or expertise, no U.S. military service, no government experience. And yet they have been empowered, under shroud of secrecy, to influence policies that affect millions of veterans, including with regard to the makeup of senior VA leadership, the future of VA health services, and an enormous contract for modernizing the VA’s electronic health records. In a breathtaking display of the Council’s influence, both of President Trump’s appointed VA Secretaries–first, David Shulkin, and then Robert Wilkie–felt compelled to fly down to Florida to meet the Council at the Mar-a-Lago Club. We filed suit with VoteVets to put an end to the Mar-a-Lago Council.
The Trump Administration’s decision to establish the Mar-a-Lago Council is yet another sign of its willingness to run roughshod over legal requirements at the expense of veterans. The Federal Advisory Committee Act requires transparency and accountability when outsiders provide advice and recommendations to the government. Yet the Administration has refused to inform the public about the actions of the Mar-a-Lago Council, allowing them to make policy behind closed doors. The Council’s existence is linked to numerous other scandals that have rocked the VA during the Trump Administration, including the firing of Secretary David Shulkin by tweet and his replacement with an unlawful Acting Secretary and the Administration’s broader push for privatization of critical VA health care services.
On behalf of VoteVets, we filed suit to shut the Mar-a-Lago Council down. Our lawsuit asserts that the VA has violated the Federal Advisory Committee Act by permitting the Mar-a-Lago council to exercise sweeping, and yet hidden, influence. We’re asking the Court to require the Council to disband, or alternatively, provide the records required by federal law.
Following a federal court’s ruling in September 2019, we filed our notice of appeal on November 26, 2019. The lower court ruled that the trio held too much sway over the VA to be considered an advisory committee, which we believe to be an incorrect view of the law.
So, on May 11, 2020, we appealed that decision on behalf of VoteVets and filed our opening appeal brief in the U.S. Court of Appeals for the District of Columbia Circuit. Our appeal pushes back on the lower court’s conclusion that, because the “[Council] exercised influence … over the agency” as opposed to the other way around, FACA cannot apply, and argues that the Council’s activities are precisely the kind of outside influence on federal policymaking that FACA aims to prohibit.
August 16, 2018
We filed suit on behalf of VoteVets, alleging that the Department of Veterans Affairs and the Mar-a-Lago Council are violating the Federal Advisory Committee Act.
November 16, 2018
The Department moved to dismiss our lawsuit.
Among other things, the government argued that the Federal Advisory Committee Act’s requirements do not apply because we allege that the Mar-a-Lago Council exerted too much influence.
December 6, 2018
We filed an amended complaint setting forth additional facts that further show the extent of the VA's illegality.
April 23, 2019
We demanded that Sec. Wilkie recover and preserve former Sec. Shulkin’s private emails with the Mar-a-Lago Crowd
Following reporting that Secretary Shulkin told members of the Mar-a-Lago Crowd that he had “set up a new email address just for our secure communications on issues in the future,” and that the three men communicated with Secretary Shulkin through this private email account, we demanded that the VA comply with the Federal Records Act by recovering and preserving these communications.Learn More
December 20, 2018
The government moved to dismiss our lawsuit.
The administration argued that the Mar-a-Lago Council is not subject to federal transparency laws because, among other things, VoteVets alleges that the Council exerts too much influence over federal veterans policy.
January 17, 2019
We opposed the government’s motion to dismiss.
While a trove of publicly released documents have brought the Council’s sweeping influence into view, the administration continues to unlawfully hide the full extent of the group’s role in steering the VA toward privatizing critical health services for millions of America’s veterans.
February 22, 2019
The government filed its reply.
The government's motion to dismiss our amended complaint is fully briefed and pending decision.
August 21, 2019
We and American Oversight sued Secretary Wilkie for failing to to save Secretary Shulkin’s private emails with the Mar-a-Lago Crowd.
The Federal Records Act requires the preservation of all agency records, and failure to do so violates the law.Learn More
September 30, 2019
A federal court issued its ruling.
The court ruled that, because the trio held too much sway over the VA , it couldn't be considered an advisory committee. It ruled in favor of the government based on what we believe is an incorrect view of the law.
May 11, 2020
We filed our appeal against the federal court ruling.
We filed a notice of appeal in November 2019 and submitted our opening appeal brief in the U.S. Court of Appeals for the District of Columbia Circuit on May 11, 2020Learn More
March 30, 2021
We won our appeal. The case continues.
The appeals court ruled that “the government need not take any formal steps to ‘establish” a FACA advisory committee” and held that the VoteVets’ allegations “suffice to identify the trio as forming an advisory group for purposes of FACA.” It remanded the matter back to the district court to proceed “through discovery and summary judgment or trial.”Learn More
In the news
ProPublica / June 3, 2020
CNN / November 26, 2018
ProPublica / November 21, 2018
ProPublica / August 16, 2018
- Complaint as Filed (8/16/18) (pdf / 1023 KB)
- DOJ Response (11/16/18) (pdf / 766 KB)
- Amended Complaint (12/6/18) (pdf / 340 KB)
- Opposition to Motion to Dismiss (1/17/19) (pdf / 778 KB)
- Mar-a-Lago FOIA Records (External Link)
- Defendants' Reply (2/22/19) (pdf / 817 KB)
- Order (9/30/19) (pdf / 118 KB)
- Opinion (9/30/19) (pdf / 259 KB)
- Appellant Brief (5/11/20) (pdf / 238 KB)
- Court of Appeals Ruling (3/30/21) (pdf / 240 KB)