This сase concerns the rights of a specific member of a specific presidential advisory commission governed by the Federal Advisory Committee Act ("FACA") to receive documents that he has requested in order to facilitate his full participation. Since Cummock v. Gore , it has been clear in this circuit that "committee membership [under FACA] bestows both rights and obligations beyond those given to members of the general public."
Plaintiff Matthew Dunlap, Secretary of State of Maine, alleges that he has not received documents associated with the Defendant Presidential Advisory Commission on Election Integrity (the "Commission") that are necessary to inform his efforts to fully participate as a Commission member. In his Motion for a Preliminary Injunction, ECF No. 7 ("Motion"), he seeks, inter alia , an order that the Commission and co-defendant officials and entities "promptly ... produce records requested by Secretary Dunlap," and that Defendants "produce ... all future documents made available to or prepared for or by the Commission promptly and no later than two weeks in advance of any future Commission meeting." Pl.'s Mot. for Prelim. Inj., ECF No. 7, at 1. The urgency of Plaintiff's Motion, filed on November 16, 2017, was predicated on the belief that the Commission would convene another meeting soon, possibly in December. See Decl. of Kris W. Kobach, ECF No. 30-2, Ex. 2 ¶ 9 ("Kobach Decl.") ("It is estimated the Commission will meet five times at a frequency of approximately 30-60 days between meetings, subject to members' schedules and other considerations.");
Upon consideration of the pleadings,
I. BACKGROUND
A. Statutory Background
FACA imposes a number of procedural requirements on "advisory committees," which are defined to include "any committee ... which is ... established or utilized by the President ... in the interest of obtaining advice or recommendations for the President." 5 U.S.C. app. 2 § 3(2) (2016). The statute exempts, inter alia , "any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government."
a desire to assess the need for the numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government.... Its purpose was to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; аnd that their work be exclusively advisory in nature.
Pub. Citizen v. U.S. Dep't of Justice ,
To achieve those purposes, FACA requires that an advisory committee, inter
B. Factual Background
The Commission was established by Executive Order on May 11, 2017. Executive Order No. 13,799,
Apart from the Vice President and the Vice Chair, there are presently nine other members оf the Commission, including Commissioner Christy McCormick of the Election Assistance Commission (the "EAC"), who is currently the only federal agency official serving on the Commission, and a number of state election officials, both Democratic and Republican, and a Senior Legal Fellow of the Heritage Foundation. See Decl. of Andrew J. Kossack (July 13, 2017), ECF No. 30-1, ¶ 1 ("July 13 Kossack Decl."); Decl. of Andrew J. Kossack (Dec. 1, 2017), ECF No. 30-3, ¶ 1 ("Dec. 1 Kossack Decl."). According to Defendant Kobach's declaration in a related case, "McCormick is not serving in her official capacity as a member of the EAC." Second Decl. of Kris W. Kobach at 2, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity , No. 17-1320 (D.D.C. July 6, 2017), ECF No. 11-1. The Executive Order also provides that the General Services Administration ("GSA"), a federal agency, will "provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission on a reimbursable basis," and that other federal agencies "shall endeavor to cooperate with the Commission." Exec. Order §§ 7(a), (b). Furthermore, the Administrator of General Services-the agency head of the GSA-is charged with performing "any functions of the President under [FACA], except for those in section 6," to the extent that FACA applies to the Commission.
The Commission filed a charter on June 23, 2017. Compl., ECF No. 1, ¶ 57; ECF No. 30-2, Ex. 2, at 10-11. In pertinent part, the Charter provides that the Commission "will function solely as an advisory body," ECF No. 30-2, Ex. 2 ¶ 4; that the Commission is established in accordance with the Executive Order "and the provisions of the Federal Advisory Committee Act,"
On June 28, 2017, the Vice President held a teleconference with members of the Commission, during which the Vice Chair discussed his intention to send letters to state election officials requesting certain information on registered voters. Compl., ECF No. 1, ¶ 44. There is no evidence in the record that advance notice of this teleconference was provided by the Commission, or that it was accessible to the public. According to Defendants, the teleconference was merely a preliminary, organizational call, and members were expressly advised that the discussion "would be limited to preparatory and administrative work, and would not address matters on which the Commission was charged with advice and recommendations." July 13 Kossack Decl. ¶ 4 (citing Exhibit A). Furthermore, although "[t]he Vice Chair and staff described the request, ... members were not given a copy of any requests in advance of the call and did not see the request until shortly before it was sent to states." Id. ¶ 5. Plaintiff indicates that he "was notified of the Commission's decision to request voter data from the states mere hours before the letters were sent." Pl.'s Mem. at 10. Plaintiff and others did, however, discuss the request for several minutes on the call, and although the matter was not put to a vote by the members, the "request was modified in response to some of [their] comments." July 13 Kossack Decl. ¶ 5; Dec. 1 Kossack Decl. ¶ 3.
Subsequently, the Vice Chair directed that identical letters dated June 28, 2017, "be sent to the secretaries of state or chief election officers of each of the fifty states and the District of Columbia." Kobach Decl. ¶ 2. In addition to soliciting the views of state officials on certain election matters by way of seven broad policy questions, each of the letters requests that state officials provide the Commission with the "publicly available voter roll data" of their respective states, "including, if publicly available under the laws of [their] state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information." Id. Ex. 3 (June 28, 2017 Letter to the Honorable John Merrill, Secretary of State of Alabama). A substantial number of states have either fully or partially declined to comply with the Commission's request for voter roll data-the exact number and the specific details of the states' responses are unknown to the Court and are not relevant to the disposition of the pending motion. See generally Compl., ECF No. 1, ¶ 45. Without doubt, however, "substantial public
On July 19, 2017, the Commission held its first public meeting, which occurred in Washington, D.C. Decl. of Matthew Dunlap, ECF No. 7-1, ¶ 6; Dec. 1 Kossack Decl. ¶ 4. Other decisions by this Court chronicle the circumstances leading up to this meeting. See Am. Civil Liberties Union v. Trump ,
The Commission next met on September 12, 2017, in Manchester, New Hampshire. Again, Plaintiff received a small set of materials in advance of the meeting. See Opp'n Mem. at 6 (indicating a draft agenda on Septembеr 5, a revised agenda on September 6, and copies of materials to be discussed at the meeting on September 8). Citing the Vaughn -type index in the Lawyers' Committee litigation, however, Plaintiff objects that he "was not treated on an equal basis as Commissioner Gardner" leading up to this meeting, because "Defendant Kobach and Commissioner Gardner 'collaborated on a bipartisan agenda for the meeting.' " Pl.'s Reply Mem. at 12 (citing Dec. 1 Kossack Decl. ¶ 9). Defendants elaborate on their communication with certain commissioners in preparation for this meeting.
Hans von Spakovsky was a presenter at the September 12 meeting, and so Commission staff communicated individually with him in his capacity as a presenter. And Secretary William Gardner communicated individually with Commission staff and Vice Chair Kobach regarding his suggestion that the Seрtember 12 meeting be held in Manchester, New Hampshire. These communications included the suggestion of five of the ten panelists, collaboration on the meeting agenda, coordination of the voting machine demonstration, and his invitation to the former Governor of New Hampshire to make opening remarks.
Opp'n Mem. at 25 n.4 (citations omitted). Plaintiff, on the other hand, indicates that he was not "invited to suggest witnesses for the September 12, 2017 meeting or to comment on the agenda or other proposed
Since the September 12 meeting, the Commission has not met again, despite the charter provision anticipating that subsequent meetings would be held. See Kobach Decl. Ex. 2 ¶ 9 (setting forth 30-60 day expectation). Nevertheless, several outside sources suggested to Plaintiff that Commission activity continued without his knowledge. First, a member of the media informed Plaintiff that Secretary Connie Lawson, one of the other commissioners, "told reporters that it was her understanding that the work of the election integrity commission had essentially been paused because of the lawsuits filed against the commission," which was news to the Plaintiff. ECF No. 7-7, at 2. He asserts that he should be informed of such communications.
On October 17, 2017, Plaintiff submitted a request to Andrew Kossack, Designated Federal Officer of the Commission, for certain Commission records pursuant to section 10(b) of FACA. Pl.'s Mem. at 6. In particular, Plaintiff requested that the Commission produce "copies of any and all correspondence between Commission members in the possession of the Commission dating from the signing of the Executive Order on May 11th, 2017 until the receipt of this request," including
communications between Commissioners themselves, between Commissioners and/or staff and other Federal agencies, communications used in the development of public documents, and any ongoing discourse between Commissioners and staff about the development of policies and/or policy proposals that may be offered to policymakers as either a component of any report or under separate cover of which this Commissioner may be unaware.
ECF No. 7-3. Despite Kossack's acknowledgment, he never provided any documents in response to the request. Pl.'s Mem. at 6.
Since Plaintiff filed this litigation, Defendants have provided him with a limited amount of additional information, but only by way of oral representation of defense counsel or letters exchanged during briefing on the Motion. First, the Commission will not meet in December. Min. Order of Nov. 20, 2017; Dec. 1 Kossack Decl. ¶ 14. Second, Defendants offered to permit Plaintiff to inspect, in person, documents related to the September 12, 2017, meeting, but he would not be provided with
II. LEGAL STANDARD
Preliminary injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the рlaintiff is entitled to such relief." Sherley v. Sebelius ,
The Court notes that it is not clear whether this circuit's sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court's decision in Winter . See Save Jobs USA v. U.S. Dep't of Homeland Sec. ,
III. DISCUSSION
The Court must assess its subject-matter jurisdiction with respect to a particular claim before ruling on the merits. See Ruhrgas AG v. Marathon Oil Co. ,
Bound up with the Court's determination of its subject-matter jurisdiction will be the Court's assessment of the merits of Plaintiff's claim of rights under FACA. "[P]articularly in the context of a request for mandamus relief, the question of the Court's subject-matter jurisdiction sometimes converges with a consideration of the merits." Bradley Memorial Hosp. v. Leavitt ,
A. Likelihood of Success on the Merits
1. Mandamus Jurisdiction
Plaintiff seeks relief pursuant to
Mandamus is a "drastic remedy, to be invoked only in extraordinary circumstances." Fornaro v. James ,
In this posture, the Court is not deciding in resolving this motion whether to issue mandamus. Rather, the Court must decide only whether Plaintiff is likely to succeed in obtaining mandamus relief.
2. "Clear and Indisputable Right" Under FACA
The D.C. Circuit's ruling in Cummock establishes through its discussion of FACA § 10(b) that Plaintiff has a clear and indisputable right to further documents.
In Cummock , the widow of a flight disaster victim sought to faithfully perform her role as a member of the White House
Like Cummock, Plaintiff has a right, as a commissioner, to "fully participate" in the proceedings of the Commission. In the Court's view, his assertion that he will be unable to fully participate without the information contained in relevant documents that the Commission has not shared with the public has merit. See Pl.'s Mem. at 1-2, 16. He, like Cummock, has the right to receive more than the documents available to the public. See Cummock ,
Defendants argue that Plaintiff is not entitled to all of the documents, but rather only those used by the Commission "as a whole." Opp'n Mem. at 23 ("[S]ection 10(b) does not clearly require every document connected with every advisory committee be disclosed; instead, this provision only requires that materials that were actually accessible (or intended to be accessible) to the committee as a whole be disclosed."); id. at 24 ("In other words, the D.C. Circuit held that a member could not be excluded from reviewing information that was used by the Commission in making its final recommendation."). But Defendants have erected and attacked a straw man, and offered in its place an outdated and indefensible view of their own.
To their first point, nowhere does Plaintiff argue that he or someone similarly situated should be entitled to "every document connected with every advisory committee." Indeed, in a letter to Defendants during briefing on this Motion, he sensibly indicated a number of categories of documents that he does not seek, presumably because he does not think he would be entitled to them or he does not consider them relevant to his role as a commissioner. See ECF 30-6 App. A (indicating that Plaintiff does not seek, e.g., "Commission members' personal notes and drafts of statements to be given at Commission meetings").
As for their second point, Defendants argue that only material relied on by the Commission "as a whole" should be made available, yet they inexplicably rely primarily on pre- Cummock interpretations of Section 10(b). See Opp'n Mem. at 23 (citing 1980s Offiсe of Legal Counsel guidance and district court decisions, one of which
A thread running through Defendants' argument is their distinction of the later posture of commission proceedings in Cummock . See, e.g. , Opp'n Mem. at 24. It is true that the White House Commission on Aviation Safety and Security, unlike the Commission in this case, had already made its final report when the case was filed. But Cummock is a case that never should have happened. If Cummock herself had received relevant documents along the way, then she would not have needed to file suit and ultimately obtain a D.C. Circuit decision that did the best it could at that stage to address her rights as a commissioner, namely by finding that she should be permitted to review documents after the fact and consider whether to amend her dissent. This Court will find that a preliminary injunction is necessary in this case to prevent the Commission from reaching the level of dysfunction that precipitated Cummock . Plaintiff is entitled to substantive information so that he can contribute along the way in shaping the ultimate recommendations of the Commission; he need not wait to assert his rights under Cummock until after the fact-when a breach of his right to fully participate could not truly be rеdressed.
3. "Clear Duty" of the Commission
An advisory committee has a nondiscretionary duty to comply with the requirements of FACA § 10(b). See 5 U.S.C. app. 2 § 10(b) (2016) ("[T]he records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying ...." (emphasis added)); Pl.'s Mem. at 16 (discussing nondiscretionary duties under FACA and citing Judicial Watch, Inc. v. U.S. Dep't of Commerce ,
Turning to the scope of that duty, the Court has not considered line-by-line the documents requested by Plaintiff. See ECF No. 30-6 App. B (identifying series of entries from Vaughn -type index in Lawyers' Committee ). The Court has not yet
The Court shall not monitor every document to be released to Plaintiff, but expects Defendants to comply with the guidance set forth in this decision. The Commission has a clear duty to provide Plaintiff with these documents and any similar documents that exist now or in the future.
4. "No Adequate Alternative"
The Government argues that Plaintiff cannot recover under the APA. See, e.g. , Opp'n Mem. at 1. Accordingly, the Court shall treat as conceded any argument that the APA would be a sufficient alternative to preclude Plaintiff's rеcourse to mandamus. See also EPIC ,
The Government instead argues that the bylaws decide this question in at least three ways: 1) by according the Chair, and if so designated, Vice Chair, the right to prepare the agenda; 2) by permitting Plaintiff, as a commissioner, to provide input; and 3) by giving Plaintiff a mechanism for changing the bylaws if he and other commissioners are unhappy with the rule regarding the agenda. See Opp'n Mem. at 26-28. The Court rejects each рrong. The Commission is not permitted to circumvent the FACA obligations recognized by Cummock simply by enshrining a particular view in the bylaws; if the converse were true, a commission established under FACA could agree in writing to eviscerate any of that statute's strictures. See Cummock ,
* * *
Based on Plaintiff's likely success in establishing a clear right to substantive information in the Commission's possession, the Government's clear duty to provide Plaintiff with that information with sufficient notice to allow him to exercise his right to fully participate as a commissioner, and the inadequacy of alternatives under the APA or bylaws, the Court finds that mandamus is not only viable at this stage of this particular case, but that it likely should be granted on the basis of compelling equitable grounds. This is so even if, as Defendant maintains, the standard for an injunction that alters the status quo is higher than for one that does not. See Opp'n Mem. at 7 (citing, e.g. , Tex. Children's Hosp. v. Burwell ,
The Court is unpersuaded by the Government's argument that, although Defendants "agreed voluntarily to abide by the provisions of FACA," see Kobach Decl. Ex. 2 ¶¶ 2, 13, the Court nevertheless should not issue mandamus because "Defendants do not concede that FACA can be constitutionally applied to presidential advisory committees." Opp'n Mem. at 37-38. The Court has found Cummock to be the applicable law in this circuit, and it has been so for nearly two decades. Cummock does not hesitаte to apply FACA to a presidential advisory committee. While Cummock did not provide relief by mandamus, the Court is not doing so today either. The Court finds that the standard for today's decision-likelihood of success on the merits-is satisfied in light of Section 10(b) and Cummock .
In addition to Plaintiff's FACA § 10(b) requests for documents, past and future, Plaintiff's Motion seeks several further types of relief, namely that Defendants be compelled "to permit Secretary Dunlap to fully participate [in Commission activities] on an equal basis as all other commissioners," and that the Commission be "enjoin[ed] ... from releasing a final report until Secretary Dunlap has received all documents to which he is entitled and has had an opportunity to review them, has participated in the drafting of the report or, if necessary, has completed a cоncurrence or dissent to the report." Pl.'s Mot. for Prelim. Inj., ECF No. 7, at 1-2.
B. Irreparable Harm
"Although the concept of irreparable harm does not readily lend itself to definition, the courts have developed several
In this case, the injunctive remedy is warranted to allay the same kind of irreparable harm to Plaintiff that Cummock herself suffered. Prevented from receiving key documents during the life of the White House Commission on Aviation Safety and Security, Cummock could only obtain from the D.C. Circuit an opportunity to review those documents and secure an equal place for her dissent in the final report. See Cummock ,
C. Balance of the Equities and the Public Interest
Plaintiff has been appointed to a presidential commission to address an important issue. Denial of the requested injunction would frustrate his interest in contributing his unique perspective, as well as gaining the "recognition and even prestige," Cummock ,
From the Government's perspective, there may be some hardship to providing all of the requested documents. However, several factors persuade the Court that this hardship is modest, at most. The Government already collected and categorized the documents to a degree sufficient to present the Vaughn -type index in the Lawyers' Committee litigation. Moreover, the Government's offer to permit Plaintiff to view the documents suggests that the Government has already contemplated how to physically furnish them-and has found
Accordingly, the Court concludes that, in balancing the equities and considering the public interest, this narrowly tailored preliminary injunction is appropriate. By withholding the substantive documents discussed in this opinion, the Commission ignores the strictures imposed by FACA to prevent unbalanced commissions, and ignores the rights and obligations required by Cummock , leaving the public to pay any concomitant price.
IV. OPPORTUNITY TO REVIEW DOCUMENTS
Apart from Plaintiff's Motion, the Court separately considers Defendants' offer to permit Plaintiff to review the requested documents, without receiving copies or taking notes. This is not a reasonable offer. If Defendants have decided that Plaintiff should be permitted to review documents, then he should be permitted to take notes and to make copies if he thinks that doing so would be useful.
V. CONCLUSION
For all of the foregoing reasons, the Court GRANTS-IN-PART AND DENIES-IN-PART Plaintiff's Motion for a Preliminary Injunction, ECF No. 7.
An appropriate Order accompanies this Memorandum Opinion.
Notes
Certain of Defendants' declarations, including this one, were originally filed in one or more related cases. For ease of reference, the Court cites to them using the docket numbers under which they have been refiled in this case.
The Court's consideration has focused on the following documents:
• Pl.'s Mem. of Law in Supp. of Pl.'s Mot. for Prelim. Inj., ECF No. 7-13 ("Pl.'s Mem.");
• Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. Inj., ECF No. 30 (Opp'n Mem.);
• Pl.'s Reply Mem. of Law in Supp. of Pl.'s Mot. for Prelim. Inj., ECF No. 31 ("Pl.'s Reply Mem.").
This Court previously has recognized that "FACA does not provide for a private cause of action," so "judicial review must be sought through some alternative route." Lawyers' Comm. ,
The Court nevertheless shall address the APA briefly below as part of the mandamus requirement that there be "no adequate alternative remedy." Am. Hosp. Ass'n v. Burwell ,
In his complaint, Plaintiff also seeks a ruling that certain alleged activities of the Commission prior to the filing of its charter constitute a violation of FACA § 9(c). See Compl., ECF No. 1, ¶¶ 94-101. While the parties have addressed this assertion in their preliminary injunction briefing, see, e.g. , Pl.'s Mem. at 12; Opp'n Mem. at 36-37, the Court shall not decide that issue at this time because Plaintiff does not specifically request this relief in his Motion.