Matthew Dunlap v. Presidential Advisory Commiss, 944 F.3d 945

In May 2017 the President created the Presidential Advisory Commission on Election Integrity, naming Vice President Pence Chair and Maine Secretary of State Matthew Dunlap as a commissioner.
Dunlap sued in November 2017 under FACA (as interpreted in Cummock v. Gore), alleging he was being denied access to committee materials needed to participate; the district court issued a preliminary injunction ordering substantive disclosures.
The President dissolved the Commission in January 2018; some documents were released, but a subset remained contested: emails between the Vice President’s staff and then-commissioners discussing potential additional appointees.
In January 2019 the district court (relying on mandamus jurisdiction) ordered those appointment-related emails produced; the government appealed, arguing the order was immediately appealable and mandamus relief was improper.
The D.C. Circuit held the January 2019 order was a modification of the December 2017 injunction (and thus appealable) but reversed on the merits because Dunlap failed to meet the demanding mandamus standard—emails about appointments were not clearly within the committee’s “work” under FACA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Jan. 2019 order was immediately appealable	The order merely clarified the Dec. 2017 injunction; no new rights altered	The order modified the injunction by requiring release of documents not covered earlier	Court: It modified the injunction and was appealable
Whether Dunlap has a clear, indisputable right under FACA to emails about potential appointees	These emails were made available to some commissioners and could show how Dunlap’s participation was inhibited	Appointment discussions concern formation/membership, not committee deliberations; reserved to the President	Court: Dunlap did not show a clear right; mandamus not warranted
Whether FACA/Cummock extends to materials about committee formation/membership	Such materials illuminate impediments to substantive participation and fall within the committee’s work	Cummock covers materials necessary for participation in the committee’s deliberative process, not the appointments process	Court: Appointment-related communications are outside the committee’s “work” and deliberative process
Whether mandamus was an appropriate jurisdictional basis	District court used mandamus because FACA lacks private right of action and mandamus can compel duty to act	Mandamus is extraordinary; plaintiff must meet a three-part test which was not satisfied here	Court: Mandamus relief was not satisfied; district court lacked jurisdiction to order those emails produced

Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) (committee members’ right to materials necessary for meaningful participation)
Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (mandamus is an extraordinary remedy)
Am. Hosp. Ass’n v. Burwell, 812 F.3d 183 (D.C. Cir. 2016) (mandamus standards for relief)
United States v. Philip Morris USA Inc., 686 F.3d 839 (D.C. Cir. 2012) (appealability of orders that modify injunctions)
Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) (immediate appeal warranted where order may have serious, irreparable consequences)
Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258 (D.C. Cir. 2012) (narrow construction of interlocutory appeal exception)
I.A.M. Nat’l Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21 (D.C. Cir. 1986) (criteria for interlocutory appeal affecting merits)