United to Protect Democracy v. Presidential Advisory Commission on Election Integrity
Civil Action No. 2017-2016
| D.D.C. | Dec 29, 2017Background
- In May 2017 President Trump created the Presidential Advisory Commission on Election Integrity (the Commission) by Executive Order; in June 2017 the Commission sent letters to state election officials requesting broad voter-roll data and related information.
- Plaintiffs (two non-profit advocacy organizations) sued, alleging the Commission violated the Paperwork Reduction Act (PRA) by collecting information without the PRA’s required prior Federal Register notice and OMB approval; they sought declaratory, mandamus, and APA relief and a preliminary injunction.
- Plaintiffs also alleged the OMB Director unlawfully withheld or unreasonably delayed action after a §3517(b) request to review the Commission’s collection.
- Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6); Plaintiffs moved for a preliminary injunction. The court found standing but dismissed for failure to state a claim.
- Central legal question: whether the Commission is an “agency” subject to the PRA; the court held it is not an agency because it is purely advisory to the President and lacks substantial independent authority.
- Court granted dismissal of claims against both the Commission and the OMB (dismissal of OMB claims rested on same agency determination) and denied the preliminary injunction as moot, but granted leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs have Article III standing via an informational injury under the PRA | Plaintiffs: deprivation of information the PRA requires to be disclosed injured their advocacy and public-education missions | Defendants: the claim is a bare procedural right (notice/comment) and insufficient for standing | Court: Plaintiffs have alleged a concrete, particularized informational injury and thus have standing |
| Whether the Commission is an “agency” subject to the PRA | Plaintiffs: Commission is an executive-branch establishment (created by Executive Order, chaired by VP) and PRA should be read broadly to cover it | Defendants: PRA’s definition of “agency” is coextensive with FOIA; entities that only advise/assist the President are excluded | Court: Commission is advisory, lacks substantial independent authority, and is not an “agency” under the PRA; thus PRA claims fail |
| Whether mandamus or declaratory relief lies against the Commission for PRA violations | Plaintiffs: mandamus appropriate because Commission had a clear duty under PRA to publish notice before collecting information | Defendants: no clear duty because PRA does not apply to the Commission | Held: No clear duty exists because Commission is not an agency; mandamus and declaratory claims dismissed |
| Whether OMB had a non-discretionary duty under §3517(b) to act on Plaintiffs’ request | Plaintiffs: they timely asked the OMB Director to review the Commission’s collection and OMB failed to act within 60 days | Defendants: §3517(b) applies only to requests to review collections conducted by or for an agency, and Commission is not an agency | Held: OMB had no mandatory duty because the collection was not “by or for” an agency as defined in the PRA; APA §706(1) claim dismissed |
Key Cases Cited
- Dole v. United Steelworkers, 494 U.S. 26 (1989) (discussing PRA background and OMB oversight)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing doctrine; injury-in-fact requirements)
- FEC v. Akins, 524 U.S. 11 (1998) (informational injury where statute requires disclosure)
- Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) (informational standing under a statute requiring disclosure)
- Summers v. Earth Island Institute, 555 U.S. 488 (2009) (limits of procedural-right-only standing)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (EOP staff who only advise and assist the President are not "agencies" for FOIA)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (scope of §706(1) remedies for agency action)
- Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006) (interpretive canon: repeat language carries settled judicial meaning)
- Citizens for Responsibility & Ethics in Wash. v. Office of Administration, 566 F.3d 219 (2009) (EOP unit must have substantial independent authority to be an agency under FOIA)
- Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir. 2002) (informational standing where notice procedures deprived party of useful regulatory information)
- Friends of Animals v. Jewell, 824 F.3d 1033 (D.C. Cir. 2016) (informational standing under a notice-and-recording provision of the Endangered Species Act)