League of Women Voters of the United States v. Newby
238 F. Supp. 3d 6
| D.D.C. | 2017Background
- The EAC Executive Director Brian Newby (not the full Commission) approved state-specific changes to the Federal Mail Voter Registration Form on Jan. 29, 2016 adding Alabama, Georgia, and Kansas instructions requiring documentary proof of U.S. citizenship.
- Newby justified acting himself in an internal memo, treating state-specific instruction changes as ministerial/administrative and not "policy" requiring Commissioners' votes under the EAC’s 2015 Organizational Management Policy Statement.
- Plaintiffs sued under the APA alleging (inter alia) Newby exceeded his statutory/subdelegated authority (Count I), violated the 2015 Policy Statement (Count II), and failed to provide reasoned explanation and notice-and-comment where required (Counts III–V).
- The D.C. Circuit granted a preliminary injunction reinstating the pre-Jan. 29 status quo; the district court later considered cross-motions for summary judgment on whether Newby had authority to act.
- The Court found the record shows a shifting, inconsistent practice about who decides state instruction requests (staff, Executive Director, or Commissioners), and the 2015 Policy Statement is ambiguous as to whether the Executive Director may approve/deny such requests.
- Because the agency’s internal directive is ambiguous and the Commission is better positioned to interpret it, the Court REMANDED Newby’s approvals to the EAC for the Commission to provide a reasoned interpretation of the 2015 Policy Statement; the preliminary injunction remains in place during remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EAC may act on state-specific Federal Form instruction changes only by a 3-member Commissioners' vote | Newby lacked authority; 52 U.S.C. §20928 requires Commission action and Commissioners reserved policymaking in 2015 Policy Statement | The Commissioners implicitly subdelegated maintenance of the Federal Form to the Executive Director; past practice supports Executive Director action | Court: Threshold. Ambiguity exists in 2015 Policy Statement; remand to EAC to interpret whether Executive Director may grant/deny requests |
| Whether the 2015 Policy Statement expressly or implicitly delegates approval/denial of state instruction requests to the Executive Director | Statement reserves policymaking to Commissioners; approving state instructions is policymaking and thus outside Executive Director authority | The Statement does not rescind prior delegated duties; maintaining the Federal Form includes approving state instructions and is administrative | Court: Ambiguous. Agency should clarify on remand whether approving/denying requests is policymaking, administrative, or implementation of policy |
| Whether Newby’s contemporaneous memo and actions qualify as the Commission’s considered interpretation entitled to deference | Newby’s memo cannot substitute for a Commission interpretation; plaintiffs contend it’s self-serving and insufficient | Intervenors urge deference to Newby’s understanding (Auer deference) | Court: Newby’s memo is suspect as the Commission’s considered judgment; remand required for Commission’s formal interpretation |
| Remedy for deficient agency action under the APA | Set aside Newby’s approvals as ultra vires and vacate actions | At minimum, set aside for failure to apply correct statutory standard; but defer broader rulings and allow administrative clarification | Court: Remanded the determinations to the EAC for interpretation; stayed case during remand and left preliminary injunction intact |
Key Cases Cited
- League of Women Voters of United States v. Newby, 838 F.3d 1 (D.C. Cir.) (affirming preliminary injunction restoring status quo ante)
- Kobach v. U.S. Election Assistance Comm'n, 772 F.3d 1183 (10th Cir. 2014) (interpreting EAC Roles & Responsibilities and upholding Executive Director action under that document)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own regulation)
- Greene v. McElroy, 360 U.S. 474 (1959) (limits on subdelegation where constitutionally sensitive)
- Am. Vanguard Corp. v. Jackson, 803 F. Supp. 2d 8 (D.D.C. 2011) (agency action is invalid if the official acting lacked delegated authority)