Emmerich Newspapers, Inc. v. Mississippi River Commission

[[COURTLISTENER_SUBOPINION {"id":"10864148","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

EMMERICH NEWSPAPERS, INC. and PLAINTIFFS
HOWARD JONES
V. CIVIL ACTION NO. 5:24-CV-87-KS-BWR
MISSISSIPPI RIVER COMMISSION DEFENDANT

ORDER
Before the Court is the Motion to Dismiss [18] filed by Defendant Mississippi River
Commission (“MRC”) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiffs Emmerich Newspapers, Inc. (“Emmerich”), and Howard Jones (“Jones”)
have filed a Response [20], and Defendant has filed a Reply [21]. In short, Plaintiffs allege that
Defendant Mississippi River Commission has failed to keep proper records, give adequate notice,
and conduct certain meetings in public, contrary to the Government in the Sunshine Act (“Sunshine
Act”), 5 U.S.C. § 552b, the Federal Advisory Committee Act (“FACA”),
5 U.S.C. § 1001
, et seq.,
and related regulations. Having reviewed the parties’ submissions, the First Amended Complaint,
and the relevant legal authority, and otherwise being duly advised in the premises, the Court finds
that the Motion [18] should be granted in part and denied in part.
I. PROCEDURAL BACKGROUND
Plaintiffs’ original Complaint alleged that, since 2010, Defendant MRC has violated (1)
the Sunshine Act,1 5 U.S.C. § 552b, and (2) the related regulation, 33 C.F.R § 209.50, by failing
to “provide notice of and access to meetings at which its conducts its business of prosecuting the
[Mississippi River and Tributaries Project].” Compl. [1] at ¶ 56. The MRC responded with a

1 Government in the Sunshine Act, ch. 409,
90 Stat. 1241
(1976).
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that
neither the MRC nor the meetings described in the Complaint are subject to the Sunshine Act. See
Motion [11]; Mem. [13]. More specifically, the MRC argued that it does not meet the Act’s
definition of “agency,” and the alleged meetings are not covered by the Act. [13] at p. 13.2
Instead of responding to the Motion to Dismiss [11], Plaintiffs exercised their Rule

15(a)(1)(B) option to amend their complaint within 21 days of service of the Motion [11]. See
Am. Compl. [15]; see also Order [14] (setting briefing schedule pursuant to Fed. R. Civ. P.
15(a)(1)(B)). In Count One of their First Amended Complaint, Plaintiffs re-allege that Defendant
has violated (1) the Sunshine Act, 5 U.S.C. § 552b, and (2) its regulations promulgated pursuant
to the Sunshine Act, as found at 33 C.F.R § 209.50. [15] at ¶¶ 63-75. In Count Two of the First
Amended Complaint, Plaintiffs alternatively allege that the MRC qualifies as an advisory
committee under the FACA,
5 U.S.C. § 1001
, et seq., that tracks the transparency requirements of
the Sunshine Act. As such, Plaintiffs assert that the MRC has failed to adhere to FACA’s statutory
scheme for open meetings, notices of meetings, records maintenance, and the specific provisions

regarding closure of meetings.
Id. at ¶¶ 76-87
. Plaintiffs seek a declaratory judgment, injunctive
relief, mandamus relief, and other relief as may be appropriate to require the MRC to remedy its
past non-compliance and to comply prospectively with the provisions of the Sunshine Act, FACA,
and related regulations.
Id. at ¶¶ 63-88
.
Thereafter, the Court entered an Order mooting the Motion to Dismiss [11]. See Text Only
Order (1/3/2025). The MRC responded to the First Amended Complaint with the present Motion
to Dismiss [18]. Echoing its previous arguments, the MRC argues that Count One’s Sunshine Act
claim should be dismissed pursuant to Rule 12(b)(6) because it is not an “agency” under the Act.

2 When referring to documents filed in the Court’s CM/ECF system, the page numbers indicate pagination assigned
by CM/ECF.
Additionally, the MRC posits that the meetings at issue do not qualify as Sunshine Act “meetings”
because they do not involve the deliberations of a quorum of agency members “where such
deliberations determine or result in the joint conduct or disposition of official agency business.” 5
U.S.C. § 552b(a)(2).
Turning to Count Two’s FACA allegations, the MRC argues that it should be dismissed

for lack of subject matter jurisdiction because FACA does not provide a private right of action.
See Fed. R. Civ. P. 12(b)(1). The MRC further asserts that Plaintiffs are not entitled to relief under
the Mandamus Act,
28 U.S.C. § 1361
, because Plaintiffs have not made the extraordinary showing
required to obtain that form of relief. Defendant argues that FACA does not apply to the MRC
because its nature is primarily operational, with only secondary advisory functions. Finally, the
MRC argues that even if FACA applies, it would not apply to the meetings at issue because they
are largely preparatory, and, under the applicable regulations, preparatory meetings need not
comply with FACA. Thus, the MRC concludes that because Plaintiffs have not shown a clear
right to relief under FACA, this Court is without jurisdiction to award mandamus relief.

II. FACTUAL BACKGROUND
With its enactment of
33 U.S.C. § 641
in 1879, Congress created Defendant Mississippi
River Commission (“MRC”) to, among other things, conduct surveys and develop “plans to protect
the banks of the river, improve navigation of the river, and prevent flooding.” Harrison Cnty.,
Miss. v. Mississippi River Comm’n, No. 1:19cv986-LG-RPM,
2021 WL 4164679
, at *5 (S.D.
Miss. Sept. 13, 2021)(citing
33 U.S.C. § 647
). “The MRC is required to submit [its] reports to the
Secretary of the Army, who transmits the reports to Congress.”
Id.
The MRC is composed of
seven commissioners appointed by the President of the United States.3
33 U.S.C. § 642
. “Three

3 As a part of the Presidential Appointment Efficiency and Streamlining Act,
Pub. L. No. 112-166, 126
Stat. 1283
(2012), Congress deleted the Senate confirmation requirement for MRC Commissioners.
members of the MRC are selected from the United States Army Corps of Engineers, one from the
National Ocean Survey and three ‘from civil life, two of whom shall be civil engineers.’” Harrison
Cnty.,
2021 WL 4164679
, at *5. According to statute,
Any funds which are appropriated by Congress for improving the Mississippi River
. . . may be expended, under the direction of the Secretary of the Army, in
accordance with the plans, specifications, and recommendations of the [MRC], as
approved by the Chief of Engineers, for levees upon any part of said river . . . in
such manner as, in their opinion, shall best improve navigation and promote the
interest of commerce at all stages of the river.
33 U.S.C. § 650
. In the aftermath of the Great Flood of 1927, Congress gave increased
responsibility to the MRC to investigate and make recommendations for flood control in the
Mississippi River Basin as a part of the Mississippi River and Tributaries project, created by the
1928 Flood Control Act. See 33 U.S.C. §§ 702a, 702h.4
As required by statute, the MRC holds meetings on government boats during its semiannual
inspection trips on the Mississippi River.
33 U.S.C. § 646
. Otherwise, according to statute, the
MRC’s meetings “shall be held at said headquarters and general offices, the times of said meetings
to be fixed by the president of the commission, who shall cause due notice of such meetings to be
given members of the commission and the public.”
Id.
According to the First Amended Complaint, Plaintiff Emmerich is a parent and holding
company which owns 100% of the stock in twenty-two subsidiary companies that publish

4 Section 702h states, in relevant part that:

The project herein authorized shall be prosecuted by the Mississippi River Commission under the
direction of the Secretary of the Army and supervision of the Chief of Engineers and subject to
[certain] provisions . . . of this title. It shall perform such functions and through such agencies as
they shall designate after consultation and discussion with the president of the commission. For all
other purposes the existing laws governing the constitution and activities of the commission shall
remain unchanged. The commission shall make inspection trips of such frequency and duration as
will enable it to acquire first-hand information as to conditions and problems germane to the matter
of flood control within the area of its jurisdiction; and on such trips of inspection ample opportunity
for hearings and suggestions shall be afforded persons affected by or interested in such problems.
newspapers in print and digital forms across Mississippi, Arkansas, and Louisiana. Am. Compl.
[15] at ¶¶ 16-22. Emmerich alleges that “[o]pen meetings and governmental transparency are
fundamental” to its business.
Id. at ¶ 18
. Emmerich further alleges that flooding of the Mississippi
River is a significant story that affects its own properties, as well as that of the residents of and the
state of Mississippi, resulting in lost revenues and higher insurance premiums.
Id. at ¶¶ 19-20
. It

argues that lack of access to MRC meetings undermines its ability to serve its customers and fulfill
its role as a news organization.
Id. at ¶ 21
.
Plaintiff Howard Jones lives in Natchez, Mississippi, and is the principal owner of a lumber
company that owns nearly three hundred acres in two locations on the Mississippi River in
southwest Mississippi and “manages about 150,000 acres up and down the Mississippi River.”
Id.
at ¶¶ 23, 33
. Through his business, Jones is “impacted by flooding on the Mississippi batture,[5]
to the extent that flooding destroys or damages timber or impacts his ability to harvest timber.”
Id. at ¶ 23
.
In this case, Plaintiffs allege that for many years, and at least since 2010, Defendant MRC

violated provisions of the Sunshine Act, 5 U.S.C. § 552b, its related regulations at 33 C.F.R §
209.50, and the FACA,
5 U.S.C. § 1001
, et seq., by holding secret, non-public meetings.
Id. at ¶
8
. According to Plaintiffs, the non-public meetings were different from the public forums
announced in the Federal Register and on its web site, which were principally used for public

5 The term “batture” “refers to the lands and waters remaining between federal levees or bluffs along the eastern and
western banks of the [Mississippi] river. It is what remains of the river’s active floodplain. The batture covers
approximately 2 million acres between Cairo, Illinois, and Baton Rouge, Louisiana.” See
https://www.lmrcc.org/habitat/the-batture-what-is-it-and-why-is-it-important/ (last visited Apr. 22, 2025) (citing to
D.S. Biedenharn, K.J. Killgore, C.D. Little, Jr., C.E. Murphy, and B.A. Kleiss, Attributes of the Lower Mississippi
River Batture, MRG&P Technical Note No. 4, March 2018 (a report prepared for the MRC by the Mississippi River
Geopmorphology & Potamology Program, a part of the Engineer Research and Development Center of the U.S. Army
Corps of Engineers)). “Downstream of Baton Rouge, the area between levees or high banks averages less than 1 mile
wide. Upstream of Baton Rouge, the batture averages 6.5 miles wide and is up to 15 miles wide in some places.”
Id.
relations purposes.
Id. at ¶¶ 30-40
. Instead, the MRC does not provide public notice of the non-
public meetings, which are utilized for engineering briefings, technical and policy presentations
by Corps of Engineer personnel, and other issues related to management of the waterway.
Id. at
¶¶ 41-55
. Public records of topics, agendas, and/or transcripts of these meetings do not exist.
Id.
Contrary to the MRC’s current practice, Plaintiffs allege that from 1977 to 2010, the MRC

provided public notices of meetings with identified subject matter related to waterway
management, which were labeled as “Sunshine Act Meeting[s].”
Id. at ¶ 56
. However, Plaintiffs
allege that since 2010, the public has been, in effect, denied access to MRC meetings in which
actual waterway management has been discussed and, in short, nearly all of the MRC’s work since
2010 has been done in secret.
Id. at ¶¶ 56-62
. Of chief concern to Plaintiffs is the impact the
decisions made by the MRC in these meetings have had on flood control and the resulting damage
(both short- and long-term) to Plaintiff Jones’s property and other properties.
Id. at ¶¶ 58-59
. And
without access to the meetings, Plaintiffs allege that they cannot ascertain the bases and
motivations for the MRC’s decisions.
Id.
Plaintiffs seek a declaratory judgment, injunctive relief,

and other appropriate relief requiring the MRC to comply with the Sunshine Act, its related
regulations, and/or FACA, and to remedy its prior alleged non-compliance.
Id. at ¶ 88
.
III. DISCUSSION
A. Count One – Sunshine Act
1. Rule 12(b)(6) Legal Standard
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short
and plain statement . . . showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
(2007).
Defendant MRC has moved to dismiss Count One’s Sunshine Act claim, see 5 U.S.C. §
552b, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to
dismiss under Rule 12(b)(6), the “complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Great Lakes Dredge & Dock Co. LLC
v. La. State,
624 F.3d 201, 210
(5th Cir. 2010). “To be plausible, the complaint’s factual

allegations must be enough to raise a right to relief above the speculative level.”
Id.
(punctuation
omitted). Facial plausibility exists “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal,
556 U.S. 662, 678
(2009). This is a “context-specific task that requires the reviewing
court to draw on its judicial expertise and common sense.”
Id. at 679
.
The Court must “accept all well pleaded facts as true and construe the complaint in the
light most favorable to the plaintiff.” Great Lakes,
624 F.3d at 210
. But the Court will not accept
as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.”
Id.
Likewise, “a formulaic recitation of the elements of a cause of action will not do.” PSKS, Inc. v.

Leegin Creative Leather Prods., Inc.,
615 F.3d 412, 417
(5th Cir. 2010)(punctuation omitted.
“While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal,
556 U.S. at 679
. “This standard ‘simply calls for enough fact to raise
a reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.”
In re S. Scrap Material Co., LLC,
541 F.3d 584, 587
(5th Cir. 2008)(citing Twombly,
550 U.S. at
556
). Ultimately, the Court’s task “is to determine whether the plaintiff has stated a legally
cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” In re
McCoy,
666 F.3d 924, 926
(5th Cir. 2012)(citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC,
594 F.3d 383, 387
(5th Cir. 2010)).
“The court’s review is limited to the complaint, any documents attached to the complaint,
and any documents attached to the motion to dismiss that are central to the claim and referenced
by the complaint.” Ironshore Europe DAC v. Schiff Hardin, LLP,
912 F.3d 759, 763
(5th Cir.
2019). The Court may also consider matters of public record, Davis v. Bayless,
70 F.3d 367
, 372
n.3 (5th Cir. 1995), and any other matters of which it may take judicial notice. Funk v. Stryker

Corp.,
631 F.3d 777, 783
(5th Cir. 2011).
2. Analysis
Plaintiffs allege that MRC has (1) violated the Sunshine Act, and (2) violated the
regulations promulgated pursuant to the Sunshine Act, found at
33 C.F.R. § 209.50
. Congress
passed the Sunshine Act “to open the deliberations of multi-member federal agencies to public
view. It believed that increased openness would enhance citizen confidence in government,
encourage higher quality work by government officials, stimulate well-informed public debate
about government programs and policies, and promote cooperation between citizens and
government.” Common Cause v. Nuclear Reg. Comm’n,
674 F.2d 921
, 928 (D.C. Cir. 1982).
Subject to certain exceptions not applicable to this action,6 Congress mandated that “every portion

of every meeting of an agency shall be open to public observation.” 5 U.S.C. § 552b(b). In sum,
Congress “sought to make government more fully accountable to the people.” Common Cause,
674 F.2d at 928.
Defendant MRC argues that Plaintiffs’ First Amended Complaint fails to state a claim

6 Exceptions include, broadly speaking, matters related to national defense and foreign policy, internal personnel rules
and practices of an agency, non-discretionary matters, privileged or confidential trade secrets and commercial or
financial information obtained from a person, crimes or formal censuring of a person, information of a personal nature
where disclosure would be an unwarranted invasion of personal privacy, certain law enforcement investigatory
records, information related to regulation and supervision of financial institutions, premature disclosure of information
that could lead to significant speculation in the financial markets or endanger the stability of any financial institution,
information regarding proposed agency action (with delineated exceptions), and certain legal proceedings. 5 U.S.C.
§ 552b(c). The MRC admits in its Memorandum that these exceptions are not applicable here. [19] at p. 22.
under the Sunshine Act because it is not an “agency” as defined by the Act. The Sunshine Act
incorporates the Freedom of Information Act’s7 (“FOIA”) definition of an agency and states that
an “agency” under the Act “means any agency, as defined in section 552(e)[8] of this title, headed
by a collegial body composed of two or more individual members, a majority of whom are
appointed to such position by the President with the advice and consent of the Senate . . . .” 5

U.S.C. § 552b(a)(1). Likewise, for reasons explained below, it is instructive that FOIA’s definition
of “agency” has been employed to interpret that term as used in the Administrative Procedure Act
(“APA”),
5 U.S.C. § 701
(b). See Soucie v. David,
448 F.2d 1067, 1073
(D.C. Cir. 1971)(using
FOIA’s definition of “agency” to find that, for purposes of the APA, the Office of Science and
Technology was an “agency.”).
That distinction is relevant to the present case because, drawing on Soucie’s clarification
of the term “agency” as found in FOIA, this Court has previously concluded that “the MRC does
not qualify as an ‘agency’ under
5 U.S.C. § 701
(b)(1)” of the APA, and, therefore, could not be
sued under the APA. Harrison Cnty.,
2021 WL 4164679
, at *5.9 In that case, the Court examined

the MRC’s work, noting that its “duties include conducting surveys and developing plans to, inter
alia, protect the banks of the river, improve navigation of the river, and prevent flooding.”
Id.
Explaining its rationale, this Court stated that “[t]he MRC does not have decision-making
authority. Instead, it merely provides recommendations for flood control to the Corps [of
Engineers]. It does not make binding rules of general application. Ultimately, it is the decisions

7
5 U.S.C. § 552
.
8 Section 552(e) was subsequently redesignated as
5 U.S.C. § 552
(f).
9 See also Electronic Privacy, 466 F. Supp. 3d at 107 (observing that Congress expanded FOIA’s definition of agency
with 1974 amendments to FOIA “‘to encompass entities that might have eluded the APA’s definition [of agency] in
§ 551(1).’”)(citations omitted). Thus, the court concluded that Congress “allowed for something to be an ‘agency’
under § 552(f)(1) [of FOIA] but not an ‘agency’ under § 551(1) or § 701(b)(1) [of the APA]. In other words, because
of the 1974 amendment [to FOIA], all APA agencies are FOIA agencies, but not vice-versa.” Id. (emphasis in
original).
of the Corps, which may be based upon recommendations by the MRC, that are reviewable” under
the APA. Id.
Likewise, because this Court has previously determined that the MRC is not an “agency”
under the APA based on FOIA’s definition of the term, it logically follows that it is not an agency
under the Sunshine Act, which also uses FOIA to define “agency.” Moreover, its members are no

longer subject to Senate confirmation, which is a requirement of an “agency” under the Sunshine
Act. See 5 U.S.C. § 552b(a)(1). Accordingly, the Court hereby grants MRC’s Rule 12(b)(6)
Motion to Dismiss Plaintiff’s claim based on the Sunshine Act itself.
This does not, however, extinguish the portion of Plaintiffs’ claim seeking enforcement of
the MRC’s regulations promulgated pursuant to the Sunshine Act, as found at
33 C.F.R. § 209.50
.
Am. Compl. [15] at ¶¶ 71-75, 88. Plaintiffs allege that the “MRC has violated the Sunshine Act
and the MRC’s own regulations since approximately 2010 by failing to provide notice of and
access to meetings at which it conducts its business of prosecuting the MR&T Project.”
Id. at ¶
75
. Furthermore, after quoting from 5 U.S.C. § 552b(a)(2) regarding the definitions of “meetings”

and “deliberations,” Plaintiffs further allege that the “various MRC meetings discussed in this
Amended Complaint are all in furtherance of the MRC’s disposition of official agency business
and subject to the Sunshine Act, as was long understood by the Corps prior to approximately
2010.” Id. at ¶ 67.
Based on the deposition testimony of Corps personnel and citing specific types of meetings,
Plaintiffs point to four categories of meetings as examples of meetings from which they have been
wrongly excluded: (1) detailed engineering briefings by District Commanders, id. at ¶¶ 44-47; (2)
technical and policy presentations and related presentations by Corps of Engineers Personnel, id.
at ¶¶ 48-50; (3) information or issues presented by the District Engineer, Corps experts, or other
sources, id. at ¶ 51; and (4) the “winter meetings” held at MRC Headquarters in Vicksburg,
Mississippi. Id. at ¶¶ 53-55. Plaintiffs seek a writ of mandamus to compel the MRC’s compliance
with
33 C.F.R. § 209.50
, thereby providing them access to the foregoing categories of meetings.
Under the Mandamus Act, a district court has “jurisdiction [over] any action in the nature
of mandamus to compel an officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.”
28 U.S.C. § 1361
. “[M]andamus jurisdiction exists if the
action is an attempt to compel an officer or employee of the United States or its agencies to perform
an allegedly nondiscretionary duty owed to the plaintiff.” Wolcott v. Sebelius,
635 F.3d 757, 766
(5th Cir. 2011). However, the Court must be mindful to “‘avoid tackling the merits under the ruse
of assessing jurisdiction.’”
Id. at 763
(citation omitted).
Section 209.50 incorporates the language of the Sunshine Act and provides that its purpose
is to:
afford to the public, to the fullest possible extent, information regarding the
decisionmaking processes of the Mississippi River Commission and to open all
meetings of the Mississippi River Commission to public observation except in
instances where a portion or portions of a meeting may be closed to the public in
accordance with this regulation in order to protect the rights of individuals and/or
in order to permit the Mississippi River Commission to carry out its statutory and
assigned functions and responsibilities.
33 C.F.R. § 209.50
(a)(1)(2025). Under the regulation, a “meeting” is defined as “the deliberations
of at least a majority of the Commissioners where such deliberations determine or result in the
joint conduct or disposition of official Commission business,” with certain exclusions related to
deliberations regarding closure of meetings.
Id.
at § 209.50(b)(6).
The MRC does not directly address the continued viability of the regulations. However,
in the section of its brief addressing the statute, the MRC labels Plaintiffs’ allegations regarding
the meetings as “conclusory.” See Mem. [19] at p. 23. The MRC argues that Plaintiffs have
insufficiently pleaded their claim with regard to the meetings that are subject to the Sunshine Act
because the First Amended Complaint does not specifically allege that the meetings included
“deliberations” and fails to provide specific facts from the closed meetings.
Although the Court has held that the MRC no longer falls under the Sunshine Act, the
regulations promulgated for the MRC pursuant to the Sunshine Act are still in force. “So long as

a regulation is extant it has the force of law” and must be followed as written until it is rescinded
or amended. United States v. Nixon,
418 U.S. 683, 695-696
(1974). “Where the rights of
individuals are affected, it is incumbent upon agencies to follow their own procedures.” Gulf
States Mfrs., Inc. v. N.L.R.B.,
579 F.2d 1298
, 1308–1309 (5th Cir. 1978), on reh'g,
598 F.2d 896
(5th Cir. 1979). A regulation “is binding law governing the agency’s decisions in this realm and,
as long as it is on the books, it must be followed.” Center for Auto Safety v. Dole,
828 F.2d 799,
803
(D.C. Cir. 1987), on reh’g,
846 F.2d 1532
(D.C. Cir. 1988).
Thus, because
33 C.F.R. § 209.50
is still “on the books,” it has the force of law, and the
MRC is duty-bound to follow it. The MRC’s argument that the First Amended Complaint falters

because it fails to allege specifically that the meetings at issue include “deliberations” is
disingenuous. The First Amended Complaint invoked both 5 U.S.C. § 552b(a)(2) regarding the
definitions of “meetings” and “deliberations,” as well as the regulation,
29 C.F.R. § 209.50
.
Plaintiffs alleged that the “MRC has violated the Sunshine Act and the MRC’s own regulations
since approximately 2010 by failing to provide notice of and access to meetings at which it
conducts its business of prosecuting the MR&T Project.”
Id. at ¶ 75
(emphasis added). The First
Amended Complaint proceeds to set out, in detail, the various categories of meetings from which
Plaintiffs have been excluded. However, because Plaintiffs have been excluded from the subject
meetings, and there are no transcripts or records regarding the subject meetings due to the MRC’s
practice of conducting the meetings in private, Plaintiffs are at an obvious disadvantage with regard
to their ability to allege specific underlying facts regarding whether “deliberations” occurred at the
meetings. This disadvantage can be cured during the course of discovery. See In re S. Scrap
Material Co., LLC,
541 F.3d at 587
(“This standard ‘simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of’ the necessary claims or

elements.”)(citation omitted).
As is well-settled, the Rules only require a “short and plain statement . . . showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Moreover, a complaint needs to plead “only
enough facts to state a claim to relief that is plausible on its face” to nudge its claim “across the
line from conceivable to plausible.” Twombly,
550 U.S. at 570
. The First Amended Complaint
exceeds those standards with regard to its claim based on
33 C.F.R. § 209.50
, and the related non-
discretionary duties created by the regulation. Accordingly, because Plaintiff has alleged a
“plausible” claim for enforcement of
33 C.F.R. § 209.50
, the regulation governing public access
to meetings of the MRC, this aspect of Defendant MRC’s Motion to Dismiss is denied.

B. Count Two – FACA
1. Rule 12(b)(1) Legal Standard
Defendant MRC has moved to dismiss Plaintiffs’ FACA claim under Rule 12(b)(1),
arguing that the court lacks jurisdiction over the claim. In this Rule 12(b)(1) facial attack on the
complaint, the Court is required “merely to decide if the plaintiff has correctly alleged a basis for
subject matter jurisdiction.” United States ex rel. Academy Health Ctr., Inc. v. Hyperion
Foundation, Inc., No. 3:10cv552-CWR-LRA,
2014 WL 3385189
, at *40 (S.D. Miss. July 9, 2014).
“For purposes of the motion, the allegations in the complaint are taken as true.”
Id.
(citation
omitted). In so doing, the Court must “‘assume the truth of all material factual allegations in the
complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that
can be derived from the facts alleged.’” Electronic Privacy Info. Ctr. v. National Sec. Comm’n on
Artificial Intelligence,
466 F. Supp. 3d 100
, 106 (D.D.C. 2020)(quoting American Nat’l Ins. Co.
v. FDIC,
642 F.3d 1137, 1139
(D.C. Cir. 2011)). “‘A Rule 12(b)(1) motion should be granted only
if it appears certain that the plaintiff cannot prove a plausible set of facts that establish subject

matter jurisdiction.’” Staten v. Harrison Cnty., Miss., No. 1:19cv560-KS-RHW,
2020 WL
1644991
, at *4 (S.D. Miss. Apr. 2, 2020)(quoting Davis v. United States,
597 F.3d 646, 649
(5th
Cir. 2009)). Additionally, the Court may take judicial notice of matters of public record.
Id.
(citing
Martinez v. McLane,
792 F. App’x 282
, 284 (5th Cir. 2019)(citing Fed. R. Evid. 201)).
2. Analysis
Turning to the statute, indeed, “‘FACA does not create a private right of action.’” America
First Legal Found. v. Cardona,
630 F. Supp. 3d 170
, 177 (D.D.C. 2022)(quoting Freedom Watch,
Inc. v. Obama,
807 F. Supp. 2d 28, 32
(D.D.C. 2011)). Therefore, plaintiffs seeking relief under
FACA must bring their claims under another right of action.
Id.
It is common for plaintiffs seeking

similar relief to assert a cause of action under the APA, but that avenue is foreclosed because this
Court has held, as stated above, that the MPC is not an agency under the APA. See also
id.
Instead, Plaintiffs seek to employ the Mandamus Act,
28 U.S.C. § 1361
, and the
Declaratory Judgment Act,
28 U.S.C. § 2201
, to bootstrap their FACA claims into existence. Their
attempt to use the Declaratory Judgment Act fails, however, as “[i]n general, a count for [relief
under the Declaratory Judgment Act] ‘is not cognizable as a separate cause of action, but it is more
properly included in the [] prayer for relief.’” Walpin v. Corporation for Nat. and Cmty. Serv.,
718
F. Supp. 2d 18, 24
(D.D.C. 2010)(alteration in original).
On the other hand, as discussed supra in Section III(A)(2), the Mandamus Act “grants
district courts original jurisdiction over ‘any action in the nature of mandamus to compel an officer
or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.’”
Baptist Mem’l Hosp. v. Sebelius,
603 F.3d 57, 62
(D.C. Cir. 2010) (quoting
28 U.S.C. § 1361
).
“‘Mandamus is [often] the only vehicle for FACA claims against an advisory committee itself,
‘because an advisory committee is not an agency subject to the APA and FACA provides no private

right of action.’” America First, 630 F. Supp. 3d at 177 (quoting NAACP Legal Def. and Educ.
Fund v. Barr,
496 F. Supp. 3d 116
, 145 (D.D.C. 2020)).
Accordingly, the Court looks at the requirements of the Mandamus Act. “If a federal
official . . . has a clear obligation to perform a duty, the plaintiff has a clear right to relief, and there
is no other adequate remedy available to the plaintiff, a court may grant mandamus relief.”
Freedom Watch,
807 F. Supp. 2d at 34
(citations omitted). “[I]f there is no clear and compelling
duty under the statute as interpreted, the district court must dismiss the action. To this extent,
mandamus jurisdiction under § 1361 merges with the merits[,]” and will be evaluated by whether
the claim is sufficiently pled. In re Cheney,
406 F.3d 723, 729
(D.C. Cir. 2005). Even so, the

Fifth Circuit has counseled that district courts should be mindful to “‘avoid tackling the merits
under the ruse of assessing jurisdiction.’” Wolcott,
635 F.3d at 763
(citation omitted).
A bit of background about FACA is in order. “FACA was born of a desire to assess the
need for the ‘numerous committees, boards, commissions, councils, and similar groups which have
been established to advise officers and agencies in the executive branch of the Federal
Government.’” Public Citizen v. U.S. Dep’t of Justice,
491 U.S. 440, 445-446
(1989)(quoting 5
U.S.C. App. 2 § 2(a)10). “FACA's requirement that advisory committee meetings be open to the

10 The Appendix has since been repealed and recodified at
5 U.S.C. § 1000
, et seq. See
Pub. L. No. 117-286, § 7
,
136
Stat. 4361
(2022). Congress stated that the restatement of the law and its recodification did “not change the meaning
or effect of the existing law or impair the precedential value of earlier judicial decisions or other interpretations.”
Id.
public, at issue here, ‘facilitate[s] public monitoring of advisory committees, thereby reducing the
likelihood that advisory committees can serve as secretive channels for special-interest access to
agencies.’” Holy Cross Neighborhood Ass'n v. Julich,
106 F. Supp. 2d 876, 881
(E.D. La. 2000)
(citations omitted).
FACA defines “advisory committee,” as follows:

[a] committee, board, commission, council, conference, panel, task force, or other
similar group, or any subcommittee or other subgroup thereof (hereafter in this
paragraph referred to as “committee”) that is established or utilized to obtain advice
or recommendations for the President or one or more agencies or officers of the
Federal Government and that is –

(i) established by statute or reorganization plan;
(ii) established or utilized by the President; or
(iii) established or utilized by one or more agencies.
5 U.S.C. § 1001
(2)(A). An “advisory committee” excludes a committee “that is composed wholly
of full-time, or permanent part-time, officers or employees of the Federal Government,” as well as
committees established by the National Academy of Sciences or the National Academy of Public
Administration.
5 U.S.C. § 1001
(2)(B). FACA also provides that “the function of advisory
committees should be advisory only, and all matters under their consideration should be
determined, in accordance with law, by the official, agency, or officer involved.”
Id.
at §
1002(b)(6). Likewise, the applicable regulation excludes from FACA “[a]ny committee
established to perform primarily operational as opposed to advisory functions. Operational
functions are those specifically authorized by statute . . . such as making or implementing
Government decisions or policy.”
41 C.F.R. § 102-3.40
(j). The regulations further provide that a
“committee designated as operational may be covered by the Act if it becomes primarily advisory
in nature.”
Id.
Applying the statutory definition, it appears that the MRC meets the criteria of a FACA
advisory committee. It is a “commission” that was “established or utilized to obtain advice or
recommendations” for the Secretary of the Army and that is “established by statute.” By statute,
Congress tasked it with making “plans, specifications, and recommendations . . . for levees upon
any part of” the Mississippi River “in such a manner as, in their opinion, shall best improve

navigation and promote the interest of commerce at all stages of the river.”
33 U.S.C. § 650
. The
1928 Flood Control Act expanded the MRC’s responsibilities for acquiring “first-hand
information” and making plans for flood control on the Mississippi River, but clarified that its
mission remained “unchanged.” See 33 U.S.C. § 702h (“For all other purposes the existing laws
governing the constitution and activities of the commission shall remain unchanged.”). As fully
explored in Harrison Cnty., it does not make or implement Government decisions or policy. See
41 C.F.R. § 401-3.40
(j); Harrison Cnty.,
2021 WL 4164679
, at *5.
Indeed, the MRC’s website echoes its statutory mandate, stating that upon its establishment
in 1879, “Congress charged the MRC with the mission to develop plans to improve the condition

of the Mississippi River, foster navigation, promote commerce, and prevent destructive floods . . .
.” https://www.mvd.usace.army.mil/About/Mississippi-River-Commission-MRC/ (last visited
Apr. 18, 2025); see Martinez, 792 F. App’x at 284 (the Court may take judicial notice of matters
of public record). The web site further describes that “[t]oday the MRC . . . provides water
resources engineering direction and policy advice to the Administration, Congress, and the Army
. . . by overseeing the planning and reporting on the improvements on the Mississippi River.” Id.
In its initial Motion to Dismiss [13], the MRC emphasized its “lack of decision-making
authority” and asserted that it “is instead primarily an advisory body.” [13] at p. 13. The MRC
likened itself to the Fishery Management Council in Flaherty v. Ross, stating that it “conducts
research and prepares plans, reports, and recommendations, but does not implement them.” Id.
(citing Flaherty v. Ross,
373 F. Supp. 3d 97, 106
(D.D.C. 2019)). In Flaherty, the court found that
despite its “considerable resources to conduct research, issue reports, and develop proposals,” the
authority to make final decisions on the Fish Management Council’s recommendations remained
with the Secretary of Commerce, therefore it was not an “agency” under the APA. The Council

was as “an advisory body” “at its core.” Flaherty,
373 F. Supp. 3d at 106
. Likewise, in Harrison
Cnty., the government characterized the MRC as “primarily an advisory body” that “prepares plans
and recommendations, but [] does not independently implement them.” Harrison Cnty., Civil
Action No. 1:19cv986-LG-RPM, Mem. [17] at p. 15. The MRC argued that by its structure,
function, and mandate, “Congress designed it to be an advisory body.” Id. at p. 16. Once again,
in that briefing the MRC compared itself to the Fishery Management Council in Flaherty. Id.
(quoting Flaherty,
373 F. Supp. 3d at 106
)(“[a]t its core, the Council is an advisory body.”).
However, in its present motion, the MRC has backpedaled from that position, arguing
instead that its duties are “primarily operational” in nature, “with only secondary advisory

functions,” therefore FACA does not apply to it. [19] at p. 29. It bases that position on the
provision of FACA that states that “the function of advisory committees should be advisory only,
and all matters under their consideration should be determined, in accordance with law, by the
official, agency or officer involved.”
5 U.S.C. § 1002
(b)(6). The MRC touts its statutory
operational mandate to survey and study the river, operate vessels on it to carry out that work, its
“prosecution” of the Mississippi River and Tributaries Project pursuant to 33 U.S.C. § 702h, and
its inspection trips as evidence that, by statute, it is operational in nature. In the Court’s view,
however, the MRC’s reading of “advisory” is too restrictive, and the MRC seeks to have it both
ways – that is, it seeks to be “advisory” when convenient for its purposes, and “operational” at
other times.
Instead, the MRC’s operational responsibilities give rise to or beget its advisory duties. At
the end of the day, and as alleged in the First Amended Complaint, its advisory duties are
paramount to its mission and a culmination of its operational duties. That is, its advisory duties,
by statute, form the “core” of its mission. As this Court has previously found, the MRC “merely

provides recommendations for flood control to the Corps [of Engineers],” with the ultimate
decision-making power resting in the Corps, as established by statute. Harrison Ctny.,
2021 WL
4164679
, at *5.
The MRC also attempts to portray the meetings at issue as “preparatory,”11 and thus not
subject to FACA. The MRC argues, once again, that these meetings did not involve
“deliberations,” and, instead, represent information-gathering “preparatory work” excluded from
the procedural requirements of the applicable regulations.
41 C.F.R. § 102-3.160
(a)(2025). The
MRC makes this argument despite the fact that it admittedly conducted the subject meetings in
private, and no transcripts or records of the meetings exist. In other words, the MRC argues that

the Court should accept as truth its factual characterization of the meetings. However, at this
juncture, the allegations in the complaint – not the factual assertions underpinning the arguments
of a defendant – are taken as true. See Academy Health Ctr.,
2014 WL 3385189
, at *40.
Thus, assuming the truth of Plaintiffs’ factual allegations, it appears that they have alleged
a “plausible set of facts that establish subject matter jurisdiction.” Staten,
2020 WL 1644991
, at
*4. Therefore, because the MRC meets the statutory definition of an advisory committee, the

11 The applicable regulations exclude from the notice and open meeting requirements of FACA meetings defined as
“preparatory work” at which committee members are “convened solely to gather information, conduct research, or
analyze relevant issues and facts in preparation for deliberation by advisory committee members in a public meeting
of the advisory committee. . . . These meetings to conduct preparatory work do not include deliberation among
advisory committee members.”
41 C.F.R. § 102-3.160
(a)(2025).
Court finds that Plaintiffs have sufficiently alleged that the MRC has a duty to adhere to FACA,
and thus can proceed with a FACA claim pursuant to the Mandamus Act. Accordingly,
Defendant’s Motion to Dismiss Plaintiffs’ FACA claim pursuant to Rule 12(b)(1) is denied.
IV. CONCLUSION
Accordingly, for the reasons set forth above, the Motion to Dismiss [18] is granted in part

and denied in part. The Motion is granted as to the claim based upon the Sunshine Act, denied as
to claim based upon
33 C.F.R. § 209.50
, and denied as to the claim based upon FACA.
SO ORDERED AND ADJUDGED, this 28th day of April, 2025.

/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

Emmerich Newspapers, Inc. v. Mississippi River Commission

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information