Lawyers' Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity
265 F. Supp. 3d 54
D.C. Cir.2017Background
- The Presidential Advisory Commission on Election Integrity (the Commission) was created by Executive Order May 11, 2017; Vice President is Chair and Kris Kobach was named Vice Chair. GSA provides administrative support.
- Plaintiff (EPIC) sued alleging the Commission is an "advisory committee" under the Federal Advisory Committee Act (FACA) and sought emergency relief (TRO/PI) to require the July 19, 2017 meeting be open to in-person public attendance/participation and that records be disclosed before the meeting.
- The Commission published a Federal Register notice that the July 19 meeting would be livestreamed on the White House site, would accept written public comments in advance, and would invite limited in-person attendance for credentialed press due to Vice President security.
- Plaintiff submitted a FACA section 10(b) records request (emails and other materials since May 11) on July 3; Defendants said they would post agenda, public comments received in advance, and other documents prepared for/by the Commission prior to the meeting.
- The Court assumed standing for jurisdictional purposes but denied the TRO/PI without prejudice, finding Plaintiff had not shown likelihood of success on the merits or irreparable informational injury given Defendants’ disclosures and representations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff has standing to pursue FACA disclosure claim | EPIC: denial of advisory-committee materials is an informational injury giving standing | Defs: no injury because they will publish materials in advance | Court: assumed informational standing for jurisdictional purposes (standing shown) |
| Whether mandamus jurisdiction exists to compel immediate compliance with FACA | EPIC: mandamus appropriate to compel disclosure and in-person access | Defs: mandamus inappropriate; alternatives exist and FACA does not demand immediate release or in-person access | Held: mandamus not available now—no clear, indisputable right to the specific relief sought and adequate alternative remedies possible |
| Whether July 19 meeting violated FACA open-meetings and public-participation requirements (10(a)(1), 10(a)(3)) | EPIC: meeting must be open for in-person public attendance and oral participation | Defs: livestream plus written comment satisfies FACA; in-person limits justified by security; regs allow electronic access and limited in-person capacity | Held: plaintiff unlikely to succeed; FACA/regulations permit reasonable electronic access and permitting written comments with oral comment at later meetings suffices |
| Whether Commission must disclose all requested documents before the July 19 meeting under FACA §10(b) | EPIC: broad set of emails and documents must be produced prior to the meeting | Defs: will publish agenda, public comments received in advance, and documents prepared for/by the Commission used at the meeting; initial meeting has few documents | Held: plaintiff not likely to succeed on 10(b) claim for additional pre-meeting disclosures; Food Chemical News requires release of materials used/discussed at meeting and Defs have satisfied that for July 19 |
Key Cases Cited
- Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989) (explains FACA’s purpose and that advisory committees fall under FACA).
- Food Chem. News v. Dep't of Health & Human Servs., 980 F.2d 1468 (D.C. Cir. 1992) (interprets §10(b) to require disclosure of materials before or at meetings whenever practicable).
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standards for preliminary injunction relief).
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements).
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (limits on APA §706(1) claims to discrete agency duties).
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review requires reasoned decisionmaking).
- Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 583 F.3d 871 (D.C. Cir. 2009) (recognizes informational standing under FACA).