319 F. Supp. 3d 70
D.C. Cir.2018Background
- Matthew Dunlap, appointed commissioner to the Presidential Advisory Commission on Election Integrity, sued after defendants (the Commission, Chair/Vice Chair, EOP, OVP, etc.) failed to provide documents enabling his meaningful participation; the Court granted partial preliminary relief on December 22, 2017.
- The Commission was terminated by Executive Order on January 3, 2018; defendants did not comply with the December 22 Order and sought reconsideration based on the Commission's dissolution.
- Dunlap moved for a Temporary Restraining Order (TRO) seeking preservation, control over post-dissolution document management, an injunction against transfer/publication of any findings or report until he could respond, and leave to serve a preservation subpoena on former Vice Chair Kris Kobach.
- Defendants represented that non-public Commission records are maintained as Presidential Records under the Presidential Records Act (PRA), that documents (including a Vaughn-type index used in related litigation) have been preserved, and that no transfer to DHS (other than to NARA if required) would occur; they also sought a stay pending appeal.
- The Court declined to reconsider its December 22 preliminary injunction, held that Dunlap remains entitled under Cummock v. Gore to the documents ordered (through the Commission's termination), denied the TRO and ancillary requests for post-dissolution document-management participation, denied leave to serve the preservation subpoena on Kobach, and denied a stay; it ordered production of the relevant documents by July 18, 2018.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the December 22, 2017 preliminary injunction should be reconsidered after Commission's termination | Dunlap argued he remains entitled to documents and relief ordered; termination shouldn't defeat Cummock-based rights | Defendants argued changed circumstances (dissolution) render injunction inequitable and moot; sought reconsideration and stay | Denied reconsideration: dissolution does not undercut Dunlap's Cummock-based entitlement to documents generated through termination; defendants must produce documents by July 18, 2018 |
| Whether Dunlap is entitled to a TRO ordering preservation, participation in post-dissolution document-management, control over transfers, and injunction against transfer/publication | Dunlap requested urgent preservation and a role in disposition/transfer decisions to protect any findings and his ability to respond | Defendants pointed to PRA governance, representations that records are preserved and not transferred (except to NARA), and that PRA matters are nonjusticiable | Denied TRO: PRA governs post-termination records; courts generally cannot adjudicate PRA compliance (Armstrong); Dunlap not likely to succeed on claims seeking a role in post-termination document management |
| Whether the Court may enjoin former commissioners (e.g., Kobach) from disseminating or transferring Commission records | Dunlap sought ancillary injunction to prevent unofficial dissemination | Defendants contended former commissioners sued only in official capacity are no longer parties and that the PRA/White House efforts address preservation; Kobach allegedly agreed not to transfer non-public records | Denied ancillary injunction: Court declined to create post-dissolution role for Dunlap; PRA and preservation representations make TRO unnecessary; jurisdictional questions over former officials not dispositive here |
| Whether expedited leave to serve a preservation subpoena on Kris Kobach should be granted | Dunlap sought leave for a preservation (or production) subpoena to prevent loss of documents allegedly held by Kobach | Defendants argued early discovery is premature, burdensome, and unnecessary given PRA obligations and representations that records were preserved; suggested White House collection and other remedies | Denied subpoena motion: court exercised discretion to refuse expedited discovery (reasonableness/good-cause and Notaro factors); burden and premature timing outweighed plaintiff's showing |
| Whether defendants are entitled to a stay pending appeal of denial of reconsideration | Defendants sought stay to permit appellate review before producing documents | Defendants claimed irreparable harm and potential prejudice to sensitive records if production occurs before appeal | Denied stay: defendants failed to show likelihood of success on appeal or clear irreparable harm; delivery of documents would not necessarily moot appellate relief and Court of Appeals could fashion remedies |
Key Cases Cited
- Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) (former commissioner of advisory committee entitled to documents necessary for full participation)
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (PRA impliedly precludes judicial review of President's management of presidential records)
- Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993) (limited review of guidelines defining presidential records may be permitted)
- Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972 (D.C. Cir. 1985) (four-factor stay pending appeal standard)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standards and necessity of clear showing)
- Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) (court can order return/destruction of unlawfully obtained materials; delivery does not automatically moot appeal)