266 F. Supp. 3d 133
D.D.C.2017Background
- President established the Presidential Advisory Commission on Election Integrity by Executive Order on May 11, 2017; Vice President chairs and GSA provides administrative support.
- Plaintiffs (ACLU et al.) allege the Commission is an "advisory committee" subject to the Federal Advisory Committee Act (FACA) and seek emergency relief to force public access, prior disclosure of materials, and physical public attendance at the Commission’s July 19 meeting.
- The Commission published a Federal Register notice for the July 19 meeting, announced livestreaming on the White House site, invited limited in-person press access (excluding the general public for security), and said it would post agenda, public comments, and other documents to a public webpage.
- Plaintiffs pursued relief only under the mandamus statute (28 U.S.C. § 1361), asserting no APA claim and saying FACA itself lacks a private cause of action.
- The Court denied the TRO/PI without prejudice, holding it lacked mandamus jurisdiction at this time because (a) adequate alternative remedies (e.g., possible APA review) were not foreclosed, and (b) Plaintiffs had not shown a clear and indisputable right to the specific prospective relief they sought under the cited FACA provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of mandamus jurisdiction to compel FACA compliance | Mandamus is the only available remedy to force Commission to comply with non-discretionary FACA duties | Mandamus is inappropriate because plaintiffs have not exhausted or foreclosed other remedies and statutory/regulatory compliance is not clearly violated | Court: Mandamus unavailable now; motion denied for lack of subject-matter jurisdiction |
| Whether FACA §10(a)(1)–(3) require physical public access at July 19 meeting | §10(a)(1)–(3) require meetings be open and permit public attendance — plaintiffs seek physical access and oral comment opportunity at July 19 meeting | Defendants: livestream + Federal Register notice + written comment opportunity satisfy FACA and GSA regs given security concerns; §10(a) does not prescribe a specific mode of access | Court: Defendants’ arrangements (livestream, notice, written comments) do not clearly violate §10(a)(1)–(3); no clear and indisputable right to relief |
| Whether FACA §10(b) required production of all committee materials before July 19 meeting | Plaintiffs demand all minutes, agendas, reports, studies, and materials be made available at a single public location prior to the meeting | Defendants: will post agenda, public comments submitted in reasonable time, and other documents prepared for or by the Commission; §10(b) contains no strict pre-meeting deadline | Court: Under D.C. Circuit precedent, materials used/discussed should be available before or at the meeting when practicable; defendants’ representations satisfy that standard for this initial meeting |
| Whether the June 28 teleconference violated FACA notice/access requirements | Plaintiffs say the teleconference lacked public notice and access in violation of §10(a) | Defendants say the call was preparatory/administrative (exempt under GSA regs) and limited to organizational matters | Court: Any violation re: June 28 call is not clearly established and, in any event, is not a basis for the prospective injunctive relief sought here |
Key Cases Cited
- Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) (discusses FACA’s purposes and GSA’s role in administering FACA)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunctions requires clear showing of likelihood of success and irreparable harm)
- Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (preliminary injunction standards and discussion of Winter’s effect on sliding-scale approach)
- Am. Hosp. Ass’n v. Burwell, 812 F.3d 183 (D.C. Cir. 2016) (mandamus requirements: clear right, clear duty, no adequate alternative remedy)
- Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) (mandamus is an extraordinary remedy)