MEMORANDUM OPINION
This case arises from the establishment by Executive Order of the Presidential Advisory Commission on Election Integrity (the “Commission”). Plaintiff- alleges that the Commission is an advisory committee subject to the disclosure, notice, and reporting requirements of the Federal Advisory Committee Act, codified at 5 U.S.C. app. 2 (“FACA”). Pending before the Court is Plaintiffs [3] Motion for Temporary Restraining Order and Preliminary Injunction. That motion seeks an order requiring the Commission to hold a scheduled July 19, 2017 meeting “open to in-person public attendance and participation” and to disclose certain records to the public prior to the meeting. Proposed Order, ECF No. 3-2. Although the Commission’s affairs have drawn substantial public attention, the legal issues involved are highly technical, implicating the jurisdiction of this Court and its ability to afford judicial review for Plaintiffs claims, and requiring a fine-grained analysis of a federal law — FACA—that is likely unfamiliar to even seasoned legal practitioners. Given the preliminary and emergency nature of the relief sought, the Court need not at this time decide conclusively whether Plaintiff is, or is not, ultimately entitled to relief on the merits. Rather, if Plaintiff has standing to bring this lawsuit, then relief may be granted if the Court finds that Plaintiff has a likelihood of succeeding on the merits, that it would suffer irrepa-
At this, juncture, the Court finds that although Plaintiff has standing, it has not shown a likelihood of success on the merits, principally because it has not demonstrated . that, at the present time, Defendants are out of compliance with FACA’s open meetings and document disclosure provisions. The Court further. concludes that Defendants’ disclosures 'to date are sufficient for the public and Plaintiff to engage in an informed debate regarding the activities of the. Commission,' meaning that Plaintiff has not demonstrated that it will suffer an irreparable informational injury. Finally, the balance struck to date between the equitable and public interests in prompt-disclosure, on the one hand, and permitting the Commission to operate without undue burden, on the other, obviates the need for emergency injunctive relief, at least for the time being. Nonetheless, to the- extent the factual or equitable circumstances change, the Court may be required to revisit this and other determinations made herein. Accordingly, 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). The statute exempts “any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government .... ” Id. FACA was enacted out of
a desire to assess the need for the nu-rnerous 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; and that their work be exclusively advisory in nature.
Pub. Citizen v. U.S. Dep't of Justice,
To achieve that purpose, FACA requires that an advisory committee, inter alia, file a charter before' meeting or taking any action, 5 U.S.C. app. 2 § 9(c), hold its meetings “open to the public,” id. § 10(a)(1), publish “timely notice” of each
B. Factual Background
The Commission was established by Executive Order on May 11, 2017. Executive Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017) (“Exec. Order”). According to the Executive Order, the Commission’s purpose is to “study the registration and voting processes used in Federal elections.” Id. § 3. The Executive Order states the Commission is “solely advisory,” and that it shall disband 30 days after submitting a report to the President on three areas related to “voting processes” in Federal elections. Id. §§ 3, 6. The Vice President is the chair of the Commission, and the President may appoint 15 additional members. From this group, the Vice President is permitted to appoint a Vice Chair of the Commission. On the same day the Commission was established, the Vice President appointed Kris W. Kobach, Secretary of State for Kansas, to serve as the Vice Chair. Compl. ¶ 32; Decl. of Kris Kobach, Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, No. 17-cv-1320,
Apart from the Vice President and the Vice Chair, there are presently ten other members of 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. Decl. of Andrew J. Kossack, ECF No. 15-1 (“Kossack Deck”), ¶ 1. According to Defendants, “McCormick is not serving in her official capacity as a member of the EAC.” EPIC, Second Deck of Kris W. Kobach, ECF No. 11-1, at 2. 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. Id. § 7(c).
The Commission filed a charter on June 23, 2017. Compl. § 29, Ex. A. In pertinent part, the Charter provides that the Commission “will function solely as an advisory body,” id. ¶4; that the Commission is established in accordance with the Executive Order “and the provisions of the Federal Advisory Committee Act,” id. ¶ 2; and that the GSA “shall provide the Commission with such administrative services,
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. ¶35. 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, but a “readout” of the call has been made publicly available, which describes the event as an “organizational call” and states that the Commission “set July 19 as its first meeting, which will take place in Washington, D.C.” Id.-, see Readout of the Vice President’s Call with the Presidential Advisory Commission on Election Integrity, available at https://www.whitehouse.gov/the-press-office/2017/06/28/readout-vice-presidents-call-presidential-advisory-commission-election (last accessed on July 18, 2017). According to Defendants, the teleconference was merely a preliminarily, organizational call, and members were expressly advised that the conversation “would be limited to preparatory and administrative work, and would not address matters on which the Commission was charged with advice and recommendations.” Kossack Deck ¶ 4 (citing Ex. 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. The request was, however, discussed for several minutes, and although members- did not vote on whether to send the' request or any other matter, the “request was modified in response to some of [their] comments.” Id.
Subsequently, on June 29, 2017, the Vice Chair directed that identical letters “be sent to the secretaries of state or chief election officers of each of the fifty states and the District of Columbia.” EPIC, Deck of Kris Kobach, ECF No. 8-1, at 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. Without doubt, however, substantial public attention has been focused on the Commission’s request for voter roll information. See, e.g., Compl. ¶¶ 37-38.
On July 5, 2017, a meeting notice was published in the Federal Éegister indicate ing that the “first Commission meeting will be held on Wednesday, July 19, 2017, from 11:00 a.m., Eastern Daylight Time (EDT)
In a submission to this Court, Defendants have represented that the..Commission intends to “publish to a public web-page all., documents which were made available, to or prepared for or by the Commission, in accordance with FACA.” Id, ¶ 2. Furthermore, prior to the July 19 meeting, the Commission will post to its website the agenda of the meeting, “public comments received through the Commission’s staff email account within a reasonable time in advance of the meeting, and other documents that are prepared for or by the Commission.” Id. ¶ 10. The Commission has received over 30,000 public comments via the Commissions’ email address. Id.
On July 3, 2017, Plaintiff submitted a request for the Commission’s records pursuant to section 10(b) of FACA. In particu-' lar, Plaintiff requested that, prior to .the July 19 meeting, the Commission produce:
All emails since May 11, 2017 relating to the Commission’s establishment, organization, operation, or work sent from or to the Commission’s Chair,'Vice Chair, other Commission members, or any federal employee (including special government employees) providing support to the Commission; and !
All other documentary materials created or received since May 11, 2017, including but not limited to records," reports, transcripts, minutes, appendixes, working papers, drafts, studies, or agenda, relating to the Commission’s establishment, organization, operation, or work that were made available to, or prepared by, the Commission’s Chair, Vice Chair, other Commission members, or any federal employee (including special government employees) providing support to the Commission.
Compb, Ex. L. A follow-up email was sent by Plaintiff on July 9, 2017. Id., Ex. N. Defendants concede that they did not respond directly to the request before this suit was filed. Kossack Deck ¶ 3.
Preliminary injunctive relief, whether in the form of a temporary restraining order or a preliminary injunction, is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius,
III. DISCUSSION
. A. Subject-Matter Jurisdiction
1. Standing and Ripeness
With respect to Plaintiffs claim under section 10(b), which seeks the disclosure, prior to the July 19 meeting, of two broad categories of materials related to the Commission, Defendants contend that Plaintiff has not suffered an injury-in-fact, or, in the alternative, that Plaintiffs section 10(b) claim is not yet ripe. The Court must asséss its subject-matter jurisdiction with respect to a particular claim before ruling on the merits. Ruhrgas AG v. Marathon Oil Co., 526 U.S 574, 584,
Standing requires that a plaintiff have “a personal stake in the outcome of the controversy .... ” Warth v. Seldin,
(1) that the plaintiff have suffered an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — -the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Bennett v. Spear,
Defendants also challenge the section 10(b) claim as unripe for judicial review. The ripeness doctrine aims at preventing the courts from adjudicating cases “not involving present injury.” Wyo. Outdoor Council v. U.S. Forest Serv.,
2. Mandamus Jurisdiction
Among other avenues of potential redress, Plaintiff also seeks relief pursuant to 28 U.S.C. § 1361, which provides that “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” In this case, that relief would be an injunction in the form of mandamus requiring Defendants to comply with FACA.
Mandamus is a “drastic remedy, to be invoked only in extraordinary circumstances.” Fornaro v. James,
Mandamus jurisdiction is not presently available in this case for several reasons. First, the Court does yet not conclude that there is no “adequate alternative remedy,” because it need not rule out the availability-of judicial review pursuant to the Administrative Procedure Act (“APA”), as even if APA review were available, Plaintiff has not demonstrated an entitlement to relief at this time. Infra at 66-67. Second, the particular provisions of FACA sought to be enforced by Plaintiff do not provide a “clear and indisputable right” to the relief sought by Plaintiff in its motion for emergency injunctive relief. The document disclosure provision of FACA — section
This is not to say that mandamus relief may never be appropriate for alleged FACA violations — other district courts have found, in. different legal and factual circumstances, that such relief may indeed be available. See, e.g., Freedom Watch, Inc. v. Obama,
B. Likelihood of Success on the Merits
FACA does not provide for a private cause of action. Ctr. for Biological Diversity v. Tidwell, No. CV 15-2176 (CKK),
Defendants strenuously oppose the availability of APA review, principally on the basis that, in their view, the Commission is not an “agency.” See Opp’n Mem. at
Plaintiff’s request for injunctive relief is predicated on Deféndants’ alleged violations of three FACA requirements. ■ The first, section 10(a)(1), mandates that “[e]ach advisory committee meeting shall be open to the public”; the second, section 10(a)(3), mandates that “[interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Administrator may prescribe”; and the . third, section 10(b), mandates that “the 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 at a single location, in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.” Plaintiff alleges that the Commission will violate FACA .unless it holds the July 19 meeting open to “in-person public atténdance and participation .... ” Compl. ¶ 59. And that the Commission has violated and will continue to violate section 10(b) because -it has not disclosed materials responsive to Plaintiffs July 3 request. Id. ¶53. The Court assesses each of these claims in turn,
First, section 10(a)(1) does not prescribe the manner in which advisory committee meetings are supposed to be “open to the public.” Defendants have provided for public viewing of the July 19 meeting through a-livestreaming service used by the'White House for events with substantial viewership, -such as official press briefings and speeches- by the President and the Vice President. See swpra at 61-62. Furthermore, section 10(a)(3) does not require that interested persons be permitted to attend each advisory committee meeting, nor does it even seem to require that an advisory committee provide an Opportunity for in-person attendance at all, if interested persons are permitted to “file statements” with the committee. See Holy Cross Neighborhood v. Julich,
This conclusion is buoyed by a review of pertinent regulations promulgated by the GSA elaborating on how federal advisory committees are expected to- comply with FACA. See generally 41 C.F.R., part .102-3 (“Federal Advisory Committee Management”). These regulations do not necessarily carry the force of law, but they are at very least instructive because the GSA is “the agency responsible for administering FACA ... .’’ Pub. Citizen,
Turning to the section 10(b) claim, Plaintiff has requested the disclosure, pri- or to the July 19 meeting, of two broad categories of materials related to the Commission and its members. The first category seeks email correspondence between Commission members, including the Vice President and the Vice Chair, and any federal employee providing support to the Commission, that relates “to the Commission’s establishment, organization, operation, or work ....” Compl., Ex. L. The second category seeks to capture “[a]ll other documentary materials created or re
Section 10(b) itself contains no deadline by which advisory committee materials must be made “available for public inspection and copying .... ” However, in Food Chemical, the D.C. Circuit instructed that, pursuant to section 10(b), “whenever practicable, parties [should] have access to the relevant materials before or at the meeting at which the materials are used and discussed, [because opening] meetings to the public would be meaningless if the public could not follow the substance of the discussions.” Food Chem.,
■The parties also spar over the significance of the June 28 teleconference. Defendants contend that this call was a preliminary organizational meeting, which GSA regulations exclude from the ambit of FACA’s disclosure obligations. Opp’n Mem. at 20-21 (citing 41 C.F.R. § 102-3.160). And to the extent that FACA applies, Defendants contend that they have now remedied any failure to comply by attaching to their pleadings the call’s agenda and an email sent shortly before the call. Id. at 29. Plaintiff objects, arguing that there must have been additional documents prepared before, during, or after the meeting, including “earlier drafts of the letter [sent] to states,” and contemporaneous notes or transcripts of the meeting. PL’s Reply Mem. at 16. Again, however, the issue before the Court is not what must be disclosed eventually, but what must be disclosed before the July 19 meeting. According to Defendants, drafts of the letter were not distributed to members before or during the teleconference; the request was only discussed orally. Kossack Deck ¶ 5. And needless to say, contemporaneous notes or records of the'teleconfer
Nonetheless, the issue of whether section 10(b) requires additional disclosures with respect to the June 28 teleconference is certainly not moot. Like Plaintiff contends, additional documents may have been generated during the call, and Plaintiff may also be entitled to declaratory relief for Defendants failure to release the agenda and email before the teleconference — assuming that Defendants are incorrect that the meeting fell outside of FACA’s reach. See Byrd v. EPA,
C. Irreparable Harm, Balance of the Equities, and the Public Interest
“Although the concept of irreparable. harm does not readily lend itself to definition, the courts have developed'several well known and indisputable principles to guide them in the determination of whether this requirement has been met.” Wisconsin Gas Co. v. FERC,
There is no doubt that the Commission and its request for voter roll information have generated substantial public interest and debate. Nonetheless, Plaintiff has failed to. demonstrate that, absent preliminary injunctive relief, its ability to engage in this public debate would be substantially impaired in a manner that is both “certain and great.” Defendants have represented that, with respect to the July 19 meeting of the Commission, they will disclose the materials that will be used at the meeting. Moreover, the public will be permitted to view the meeting, to submit written conmients, and to , provide oral comments at - subsequent meetings. There may be other documents that could, in theory, further facilitate this public debate, but based on the information presently available, it appears that the principal documents have or will be disclosed, -and that the public, and Plaintiff will have a-substantial opportunity to debate and provide in
Finally, the equitable and public interest factors are in equipoise. Plainly, as an equitable and public interest matter, more disclosure, more promptly, is better than less disclosure, less promptly. But this must be balanced against the interest of advisory committees to engage in their work without,' prior to each meeting, having to disclose every document that could possibly be disclosed pursuant to section 10(b). Similarly, sometimes advisory committees must, for practical reasons, defer in-person public commentary until subsequent meetings, so long as the public may access each meeting and submit written comments. This is a balancing act, and in this case, the Court finds that the balance struck to date is sufficient to obviate the need for emergency injunctive relief, Nonetheless, to the extent the factual or equitable circumstances change, the Court may be required to revisit this and other determinations made herein.
IY. CONCLUSION
Accordingly, for all of the foregoing reasons, Plaintiffs [3] Motion for Temporary Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE.
An appropriate Order accompanies this Memorandum Opinion.
Notes
. The Court's consideration has focused on the following documents:
• PL's Mem. in Supp. of Mot. for TRO and Prelim. Inj., ECF No. 3-1 ("PL's Mem.”);
• Defs.’ Mem. in Opp’n to Pis.’ Mots, for TRO and Prelim. Inj., ECF No, 15 ("Opp’n Mem.”);
• Pl.’s Reply Mem. in Supp. of Mot. for TRO and Prelim! Inj., ECF No. 16 ("PL’s Reply Mem.”). :
. Plaintiff has consented to the contemporaneous adjudication of both its motion for a temporary restraining order and its motion for a preliminary injunction.
. 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.,
. In a related case, American Civil Liberties Union, et. al., v. Donald Trump, et. al., No. 17-cv-1351 (D.D.C. July 10, 2017) ("ACLU"), plaintiffs have argued, in essence, that Defendants are violating these regulations because the meeting is being held in-person, while public access is being provided via the internet. ACLU, ECF No. 17, at 16. The Court does not read the statute or regulations so narrowly. For example, the regulations provide that each "advisory committee meeting [must be] held at a reasonable time and in a manner or place reasonably accessible to the public ...." 41 C.F.R. § 102-3.140(a). This only requires that the "manner” or "place” be reasonably accessible to the public, not both. Furthermore, the regulations seem to anticipate that meetings may be held in a mixed medium, as they provide for an "advisory committee meeting [to be] conducted in whole or part by a teleconference .... ” Id. § 102-3.140(e) (emphasis added). Finally, it must be remembered that the statutory mandate only requires generally that each "advisory committee meeting shall be open to the public.” 5 U.S.C. app. 2 § 10(a)(1). No particular mode of access is specified.