NAACP Legal Def. & Educ. Fund v. Wilkinson

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., Plaintiff, v. MONTY WILKINSON,in his official capacity as Acting Attorney General of the United States, et al., Defendants.

Civil Action No. 20-1132 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 24, 2021

MEMORANDUM OPINION

This Court previously granted plaintiff NAACP Legal Defense and Educational Fund's ("LDF") motion for summary judgment on several of its claims that defendants violated the Federal Advisory Committee Act ("FACA") in forming and operating the Presidential Commission on Law Enforcement and the Administration of Justice ("Commission"). Defendants now move to dismiss for lack of standing LDF's remaining claim that the Commission violated Section 5(b)(3) of FACA, which requires that the directive establishing an advisory committee "contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest." 5 U.S.C. app. 2 § 5(b)(3). In the alternative, defendants ask the Court to grant summary judgment to LDF—and forego discovery—on that claim based on defendants' admission that the documents establishing the Commission lacked any provisions aimed at preventing inappropriate influence. LDF, on the other hand, has moved to compel defendants to publicly release documents that LDF claims are covered by FACA's public records provision, id. § 10(b), but that defendants believe are not subject to disclosure. For the reasons stated below, the Court will enter summary judgment in favor of LDF on its Section 5(b)(3) claim and order defendants to release some additional documents pursuant to Section 10(b).

Background

The Court will assume familiarity with the basic facts of this case, which were summarized at length in the Court's opinion granting LDF's partial motion for summary judgment. See NAACP Legal Def. & Educ. Fund, Inc. v. Barr ("NAACP I"), — F. Supp. 3d —, 2020 WL 5833866, at *1 (D.D.C. Oct. 1, 2020). There, the Court held that the Commission is subject to FACA and that defendants violated FACA by failing to (1) ensure fairly balanced membership of the Commission, (2) file a charter with the required entities, (3) appoint a designated federal officer, and (4) provide timely notice of meetings in the Federal Register. See id. at *17-18. Consequently, the Court issued a declaratory judgment and temporarily enjoined Commission proceedings and publication of any work product until defendants complied with FACA. See Oct. 1, 2020 Order ("Oct. 1 Order") [ECF No. 44]. The Court also ordered the parties to submit proposed remedial orders regarding injunctive relief and any other appropriate relief. Id.

After considering the parties' briefing on remedies, the Court issued a superseding remedial order. See Nov. 2, 2020 Order ("Nov. 2 Order") [ECF No. 53]. In that order, the Court again declared that the Commission was subject to FACA and had violated several of its provisions. Id. at 2. Further, the Court permanently enjoined defendants from publishing any unrestricted copy of the Commission's report unless defendants first filed a charter, provided timely notice of future meetings in the Federal Register, selected a designated federal officer for the Commission, and took steps necessary to ensure the Commission's membership was fairly balanced. Id. at 2-3. And the Court ordered that if defendants published the report without satisfying those requirements,then defendants must include the following statement near the beginning of the report, in at least the same size print as the rest of the text:

Although the Commission which prepared this Report was subject to the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. 2, a United States District Court judge has found that the Department of Justice ("DOJ") and the Commission's officers violated FACA in forming and operating the Commission. In particular, DOJ and the Commission did not comply with FACA's requirements to ensure the Commission's membership is fairly balanced in terms of the points of view represented, file a charter, select a designated federal officer, or provide timely notice of meetings in the Federal Register. For additional detail, the remedial order of the United States District Court that issued this decision is attached to the Commission's Report.

Id. at 3-4.

On November 16, 2020, the parties submitted a joint status report addressing compliance with the Court's remedial order and providing proposals for proceeding with LDF's claims that were not resolved on summary judgment—namely, LDF's claims that defendants did not protect the Commission from inappropriate influence as required by Section 5(b)(3) or make its records available for public inspection as required by Section 10(b). Joint Status Report [ECF No. 55]. Given the Court's conclusion that the Commission was subject to FACA, the parties agreed that documents subject to Section 10(b) should be available for public inspection. See id. at 5, 9. As to LDF's Section 5(b)(3) claim, defendants stated they would file a renewed motion to dismiss for lack of standing. Id. at 14.

The Court subsequently ordered defendants to begin releasing materials covered by Section 10(b) and set a briefing schedule for defendants' renewed motion to dismiss. Nov. 23, 2020 Order [ECF No. 56]. Defendants agreed to (and did) release all materials that were distributed to the full Commission. See Second Joint Status Report [ECF No. 58] at 3; Fourth Decl. of Dean M. Kueter, Jr. [ECF No. 64-1] at 3. But LDF sought additional documents, and the parties reached an impasseover what types of records must be disclosed under Section 10(b). See Third Joint Status Report [ECF No. 60]. In December 2020, Attorney General Barr published the Commission's final report, which included the disclaimer mandated by the Court's remedial order. See U.S. Dep't of Justice, President's Commission on Law Enforcement and the Administration of Justice, Final Report (Dec. 2020), https://www.justice.gov/file/1347866/download ("Final Report"). The Commission's study has concluded. See id. at iii.

Defendants have now moved to dismiss LDF's Section 5(b)(3) claim for lack of standing. Defs.' Renewed Partial Mot. to Dismiss [ECF No. 57]. If the Court declines to dismiss, defendants ask the Court to enter summary judgment in favor of LDF—without allowing discovery—based on defendants' admission that the Commission violated Section 5(b)(3). See Mem. of P. & A. in Supp. of Defs.' Renewed Partial Mot. to Dismiss ("Mot. to Dismiss") [ECF No. 57-1] at 1. In addition, LDF has moved to compel defendants to release additional documents pursuant to Section 10(b). Pl.'s Mot. to Compel Defs. to Publicly Disclose Docs. Required by FACA [ECF No. 61]. Both motions are now fully briefed and ripe for consideration.

Legal Standards

I. Defendants' Motion to Dismiss

To survive a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the plaintiff must establish the court's jurisdiction by a preponderance of the evidence. Judicial Watch, Inc. v. Nat'l Archives & Records Admin., 845 F. Supp. 2d 288, 294 (D.D.C. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). "In order to establish jurisdiction, a plaintiff must establish standing." Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). The "plaintiff must demonstrate standing for each claim . . .and for each form of relief that is sought." Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. FEC, 554 U.S. 724, 734 (2008)).

II. Defendants' Request in the Alternative for Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A fact is 'material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson, 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

III. Plaintiff's Motion to Compel

Section 10(b) of FACA provides 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." 5 U.S.C. app. 2 § 10(b). Unless a Freedom of Information Act ("FOIA") exception applies, the government must make these materials publicly available as a matter of course. See Food Chem. News v. Dep't of Health & Human Servs., 980 F.2d 1468, 1469 (D.C. Cir. 1992) (holding that advisory committee records "must be available . . . before or on the date of the advisory committee meeting to which they apply"); 5 U.S.C. app. 2 § 10(b) (noting that FACA's disclosure requirement is "[s]ubject to section 552 of title 5, United States Code"). A request for documents pursuant to FACA survivesthe termination of the advisory committee. Cummock v. Gore, 180 F.3d 282, 292 (D.C. Cir. 1999); Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 30 (D.D.C. 2002) ("[C]laims for documents pursuant to § 10(b) [are] eventually rendered moot not by the termination of the advisory group but only when the defendants release[] the documents.").

Analysis

I. Motion to Dismiss

Defendants contend that LDF lacks standing...