286 F. Supp. 3d 96
D.C. Cir.2017Background
- The Presidential Advisory Commission on Election Integrity (the Commission) was created by Executive Order May 11, 2017; it filed a charter and asserted voluntary compliance with FACA. Several state officials and private individuals were appointed as commissioners.
- Commissioner Matthew Dunlap (Secretary of State of Maine) alleges he was denied substantive Commission documents needed to "fully participate," and requested records under FACA § 10(b); his requests went unmet or were only partially accommodated (offer to inspect without copies/notes).
- Dunlap moved for a preliminary injunction (and seeks mandamus relief) directing production of past and future Commission documents and advance notice/copies of materials used in meetings; other requested relief (equal treatment, enjoin final report) was deemed premature.
- Defendants contend disclosure obligations are limited (e.g., to materials used by the Commission "as a whole") and point to bylaws and alternative procedures; they also dispute the applicability/constitutionality of FACA to presidential advisory committees.
- The Court, applying D.C. Circuit precedent (Cummock v. Gore), found Dunlap likely to succeed on the merits that he — as a commissioner — has a right under FACA § 10(b) to substantive documents needed to participate, and that mandamus jurisdiction is likely available; the Court granted a narrowly tailored preliminary injunction to produce such documents and rejected the offer to inspect without copying or note-taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dunlap is entitled to substantive Commission documents under FACA § 10(b) | Dunlap: as a commissioner he has a right to documents "made available to or prepared for or by" the Commission to enable full participation | Defendants: disclosure limited to materials actually used by the Commission "as a whole"; bylaws and internal procedures suffice | Court: Likely agrees with Dunlap; Cummock controls — commissioner entitled to substantive materials to participate; preliminary relief warranted |
| Whether mandamus jurisdiction lies to compel production | Dunlap: mandamus under 28 U.S.C. § 1361 is appropriate because there is a clear right, a nondiscretionary duty, and no adequate alternative | Defendants: APA or bylaws provide alternatives; question whether FACA applies constitutionally to Presidential advisory committees | Court: Likely satisfied mandamus requirements at preliminary stage (clear right/duty; no adequate alternative shown) |
| Whether Commission bylaws/offer to inspect cure the alleged denial | Dunlap: bylaws and after-the-fact inspection without copies/notes are inadequate to enable meaningful participation | Defendants: bylaws give agenda/participation processes; inspection offer addresses access | Court: Rejects as adequate; inspection without copying/notes unreasonable; bylaws cannot supersede FACA obligations |
| Irreparable harm, balance of equities, public interest for injunction | Dunlap: denial of documents would irreparably impair his ability to participate and influence Commission work | Defendants: burden of production and political/administrative concerns | Court: Finds irreparable harm likely, equities/public interest favor narrowly tailored injunction to ensure full participation |
Key Cases Cited
- Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) (commissioner has right to information necessary to fully participate; FACA § 10(b) disclosure obligations applied to commissioners)
- Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989) (describes FACA's purposes and disclosure requirements)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunctions requires showing likelihood of success and irreparable harm)
- Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) (mandamus is a drastic remedy for extraordinary circumstances)
- Am. Hosp. Ass'n v. Burwell, 812 F.3d 183 (D.C. Cir. 2016) (mandamus elements: clear right, clear duty, no adequate alternative)