Dunlap v. Presidential Advisory Comm'n on Election Integrity, Civil Action No. 17-2361 (CKK)

464 F.Supp.3d 247

Matthew DUNLAP, Plaintiff,

v.PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Defendants.

Civil Action No. 17-2361 (CKK)

United States District Court, District of Columbia.

Signed May 29, 2020

Austin Ridgely Evers, Cerissa Cafasso, Melanie Togman Sloan, American Oversight, Washington, DC, Daniel A. Friedman, Pro Hac Vice, Harry Sandick, Pro Hac Vice, Daniel Seth Ruzumna, Patterson Belknap Webb & Tyler, LLP, New York, NY, for Plaintiff.

Carol Federighi, Elizabeth J. Shapiro, Joseph Evan Borson, Kristina Ann Wolfe, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This case 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. The Court previously granted in part Plaintiff Matthew Dunlap's Motion for a Preliminary Injunction. See Dec. 22, 2017 Order, ECF No. 32; Dec. 22, 2017 Mem. Op., ECF No. 33.

Now pending before the Court are Plaintiff's Motion to Compel Compliance with the Court's Orders, ECF No. 73, and Defendants’ Motion to Dismiss, ECF No. 74. Plaintiff argues that Defendants have failed to comply with the previously issued preliminary injunction in this case. In response, Defendants argue that they have complied, and that Plaintiff's remaining claims should be dismissed on various grounds. Upon consideration of the briefing,¹ the relevant authorities, and the record as a whole, the Court DENIES Dunlap's Motion to Compel Compliance and GRANTS Defendants’ Motion to Dismiss.

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." Id. FACA was enacted out of

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; and that their work be exclusively advisory in nature.

Pub. Citizen v. U.S. Dep't of Justice , 491 U.S. 440, 445–46, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (internal quotation marks and citations omitted). Moreover, FACA is designed to prevent commissions from, inter alia , convening a group of like-minded individuals, excluding duly appointed members with opposing viewpoints, and rubber-stamping the political agenda of the appointing authority. See Cummock v. Gore , 180 F.3d 282, 287, 291–92 (D.C. Cir. 1999) (citing Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act , 104 Yale L.J. 51, 58–59 (1994) (discussing the "outside, ‘neutral’ support" necessary to make "salable" the conclusion of an agency decisionmaker)).

To achieve those purposes, 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 such meeting in the Federal Register, id. § 10(a)(2), keep minutes and other records of its meetings, id. § 10(c), and allow "[i]nterested persons ... to attend, appear before, or file statements with" the committee, id. § 10(a)(3). FACA also mandates that, unless an exception applies under the Freedom of Information Act ("FOIA"), "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." Id. § 10(b). Finally, FACA requires that each advisory committee be "fairly balanced in terms of the points of view represented and the functions to be performed," id. § 5(b)(2), and "not be inappropriately influenced by the appointing authority or by any special interest," id. § 5(b)(3).

B. Factual and Procedural Background

The Court previously described the factual background underlying this case in its prior memorandum opinion initially considering Dunlap's Motion for a Preliminary Injunction. See Dunlap v. Presidential Advisory Comm'n on Election Integrity ("Dunlap I "), 286 F. Supp. 3d 96, 100–04 (D.D.C. 2017). The Court includes again here some relevant details and procedural history and refers readers to its prior memorandum opinion, which it incorporates and makes a part of its opinion here, for additional background.

Defendant the Presidential Advisory Commission on Election Integrity (the "Commission") was established by Executive Order on May 11, 2017. Executive Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). The Vice President was Chair of the Commission. See id. § 2; Dunlap I , 286 F. Supp. 3d at 100. President Donald Trump also appointed Plaintiff Matthew Dunlap to the Commission. The Commission had its first public meeting on July 19, 2017 and its second meeting on September 12, 2017. Dunlap I , 286 F. Supp. 3d at 102. Dunlap received a small set of materials before both meetings. See id. Dunlap, believing that he did not receive Commission materials to which other members had access, submitted a request to Andrew Kossack, Designated Federal Officer of the Commission, for certain Commission records under section 10(b) of FACA on October 17, 2017. Id. at 103. Dunlap specifically 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.

Id.

Dunlap filed this suit on November 9, 2017, claiming, among other things, that he had still not been provided materials to which he was entitled. See Compl., ECF No. 1. In particular, he brought five claims: (1) violation of FACA section 5, id. ¶¶ 77–85, (2) violation of FACA section 10(b), id. ¶¶ 86–93, (3) violation of FACA section 9(c), id. ¶¶ 94–101, (4) violation of the Administrative Procedure Act ("APA"), id. ¶¶ 102–06, and (5) in the alternative, seeking relief under the Mandamus and Venue Act ( 28 U.S.C. § 1361 ), id. ¶¶ 107–10. He further filed a Motion for Preliminary Injunction on November 16, 2017. See Mot. for Prelim. Injunction, ECF No. 7. He was provided with a limited amount of the information he requested after the filing of this litigation. See Dunlap I , 286 F. Supp. 3d at 103–04.

After the parties briefed the issues relating to the requested preliminary injunction, the Court granted in part and denied in part Dunlap's Motion for Preliminary Injunction. See id. at 111. In particular, the Court found that Dunlap had "a clear and indisputable right to further documents" under the D.C. Circuit's ruling in Cummock v. Gore , 180 F.3d 282 (D.C. Cir. 1999). See Dunlap I , 286 F. Supp. 3d at 105. Dunlap generally had "the right to receive more than the documents available to the public" to ensure that he could " ‘fully participate’ in the proceedings of the Commission." Id. at 106. This included "documents that the Commission [was] considering relying on in the course of developing its final recommendations." Id. The Court provided several examples of "substantive disclosures that [Dunlap] should have received" in its opinion. Id. at 108.

The Commission was subsequently terminated on January 3, 2018. Termination of Presidential Advisory Comm'n on Election Integrity, Executive Order No. 13,820 § 1, 83 Fed. Reg. 969 (Jan. 3, 2018). Defendants thereafter moved for reconsideration, which this Court denied in a memorandum opinion that this Court also incorporates and makes a part of its opinion here. See Dunlap v. Presidential Advisory Comm'n on Election Integrity ("Dunlap II "), 319 F. Supp. 3d 70 (D.D.C. 2018). The Court found that the termination of the Commission did not impact Dunlap's rights with respect to document disclosures under FACA. See id. at 86–89. The Court clarified that the preliminary injunction extended to "relevant documents listed on the Vaughn -type index as well as those generated or received afterwards" and included "relevant documents that any of the former commissioners generated or received," including "material that commissioners solicited and subsequently received from third parties," as long as those documents were "documents discussed in the Court's December 22, 2017" decision. Id. at 89–90.

Following this, Defendants produced certain documents to Dunlap. See, e.g. , Notice of Compliance, ECF No. 53. The parties continued to meet and confer—and discuss with the Court—which categories of documents Defendants had withheld that Dunlap still sought. See July 27, 2018 Joint Status Report, ECF No. 54; Aug. 13, 2018 Order, ECF No. 55; Notice of Categories of Withheld Docs., ECF No. 58; Pl.’s Resp. to Defs.’...