Dunlap v. Presidential Advisory Commission on Election Integrity ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW DUNLAP,
Plaintiff,
v.
Civil Action No. 17-2361 (CKK)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, et al.,
Defendants.
MEMORANDUM OPINION
(May 29, 2020)
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
1
The Court’s consideration has primarily focused on the following:
• Pl.’s Mot. to Compel Compliance with the Ct.’s Orders (“Pl.’s Mot. to Compel”), ECF No.
73;
• Mem. of Law in Supp. of Pl.’s Mot. to Compel Compliance with the Ct.’s Orders (“Pl.’s
Mem.”), ECF No. 73-1;
• Defs.’ Mem. in Supp. of Their Mot. to Dismiss and in Opp’n to Pl.’s Mot. to Compel
Compliance with the Ct.’s Orders (“Defs.’ Mot. and Opp’n”), ECF No. 74-1;
1
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 (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
• Reply in Supp. of Pl.’s Mot. to Compel Compliance with the Ct.’s Orders and Opp’n to
Defs.’ Mot. to Dismiss (“Pl.’s Opp’n and Reply”), ECF Nos. 77 & 78;
• Defs.’ Reply Mem. in Further Supp. of Their Mot. to Dismiss (“Defs.’ Reply”), ECF No.
88; and
• Mar. 6, 2020 Joint Status Report, ECF No. 92.
In an exercise of its discretion, the Court finds that holding oral argument would not be of
assistance in rendering a decision. See LCvR 7(f).
2
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.
3
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
4
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
5
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.’ Notice of Categories of Withheld Docs., ECF
No. 59; Sept. 17, 2018 Min. Order; Sept. 28, 2018 Joint Status Report, ECF No. 60; Oct. 1, 2018
Min. Order; Oct. 9, 2018 Joint Status Report, ECF No. 61; Oct. 12, 2018 Order, ECF No. 62; Oct.
24, 2018 Joint Status Report, ECF No. 63; Jan. 28, 2019 Order, ECF No. 64.
This Court further ruled upon certain categories of documents sought by Dunlap in its
January 28, 2019 Order, ECF No. 64. Among other things, the Court ordered that Defendants
produce certain emails. Id. at 3–4. Included in that Order were “[e]mails discussing potential
Commission members (e.g., Vaughn Index entry Nos. 361, 167).” Id. at 3. Defendants appealed
this portion of the Order to the D.C. Circuit. See Notice of Appeal, ECF No. 67. The Court
ultimately stayed production of the emails at issue while the appeal was pending. See Mar. 4, 2019
Min. Order; May 22, 2019 Min. Order; June 11, 2019 Min. Order; June 13, 2019 Min. Order; June
21, 2019 Order, ECF No. 84.
On appeal, the D.C. Circuit reversed this Court’s January 28, 2019 Order as to the emails
discussing potential Commission members. Dunlap v. Presidential Advisory Comm’n on Election
Integrity (“Dunlap III”), 944 F.3d 945, 950 (D.C. Cir. 2019). In doing so, the D.C. Circuit
reiterated that Cummock found that “a FACA committee member should receive information
‘made available to the [committee] during the course of its deliberative process and without which
6
[the committee member’s] ability to fully and adequately participate in that process [would be]
impaired.’” Id. (quoting Cummock, 180 F.3d at 292). While the emails at issue were “‘made
available to’ certain individuals who were Commission members but not others,” they were not
part of the “work of the committee” or its “deliberative process” and were unrelated to its purpose.
Id. As a result, Dunlap could not meet the demanding mandamus standard. 2 Id.While the D.C. Circuit was considering Defendants’ appeal, the parties briefed the two
pending motions: Dunlap’s Motion to Compel Compliance and Defendants’ Motion to Dismiss.
These two motions are now ripe.
II. LEGAL STANDARD
A. Motion to Compel Compliance
While Dunlap’s motion is styled as a Motion to Compel Compliance, he is requesting that
the Court order that Defendants produce specific categories of documents in accordance with the
preliminary injunction issued in this case. This requires the Court to determine whether these
documents are covered by the preliminary injunction issued in this case and also whether Dunlap
is entitled to those specific documents under the relevant preliminary injunction standard.
“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, 644 F.3d 388, 392
(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries
the burden of persuasion.” (emphasis in original; quotation marks omitted)).
2
The Court consequently withdraws the portion of its January 28, 2019 Order, ECF No. 64,
directing that these emails be produced. The Court further finds that, in light of the D.C. Circuit’s
ruling, Dunlap’s claim with respect to these emails must be dismissed.
7
“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed
on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,
[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (internal quotation marks omitted)
(quoting Sherley, 644 F.3d at 392). “‘When seeking a preliminary injunction, the movant has the
burden to show that all four factors, taken together, weigh in favor of the injunction.’” Abdullah
v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp.,
571 F.3d 1288, 1292 (D.C. Cir. 2009)). Where the preliminary injunction would be a mandatory
one, meaning that its terms would alter rather than preserve the status quo, the Court’s power to
issue a preliminary injunction “should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d
1168, 1173 (D.C. Cir. 1969).
B. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Defendants move to dismiss in part due to lack of subject-matter jurisdiction. A court must
dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter jurisdiction. In
determining whether there is jurisdiction, the Court may “consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003) (internal quotation marks omitted) (quoting Herbert v. Nat’l Acad. of
Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside
the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”).
In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all
factual allegations in the complaint and construe the complaint liberally, granting plaintiff the
8
benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole
Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005) (“At the motion to dismiss stage, counseled
complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all
possible inferences favorable to the pleader on allegations of fact.”); Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993) (“We review here a
decision granting a motion to dismiss, and therefore must accept as true all the factual allegations
in the complaint.”); Koutny v. Martin, 530 F. Supp. 2d 84, 87 (D.D.C. 2007) (“[A] court accepts
as true all of the factual allegations contained in the complaint and may also consider ‘undisputed
facts evidenced in the record.’” (internal citations omitted) (quoting Mineta, 333 F.3d at 198)).
Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains
the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am.
Farm Bureau v. United States Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).
“Although a court must accept as true all factual allegations contained in the complaint when
reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6)
motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163,
170 (D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001)), aff’d, 2008 WL
4068606 (D.C. Cir. Mar. 17, 2008). A court need not accept as true “a legal conclusion couched
as a factual allegation” or an inference “unsupported by the facts set out in the complaint.”
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks
omitted) (quoting Papasam v. Allain, 478 U.S. 265, 286 (1986)).
9
C. Motion to Dismiss for Failure to State a Claim
Defendants also move to dismiss certain claims under Rule 12(b)(6) for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Federal Rules require that
a complaint include “‘a short and plain statement of the claim showing that the pleader is entitled
to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P.
8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than
labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. Instead,
a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” Id. at 556, 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must
establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at
679 (quoting Fed. R. Civ. P. 8(a)(2)).
10
III. DISCUSSION
The Court first addresses Dunlap’s Motion to Compel Compliance before turning to
Defendants’ Motion to Dismiss.
A. Motion to Compel Compliance
Dunlap seeks to have Defendants produce three categories of documents that they have
withheld. He describes them as: (1) “internal and confidential documents sent to the Vice President
by his staff,” (2) “materials written by the Vice President’s personal staff for his use,” and (3)
“other internal records of the Office of the Vice President (‘OVP’) and the Executive Office of the
President (‘EOP’)”. Pl.’s Mot. at 2 (internal quotation marks omitted) (quoting Jan. 28, 2019
Order, ECF No. 64, at 1). Defendants also provide details on these three categories: (1) “broader
OVP and EOP discussion about the Commission itself, including internal discussions within OVP
and EOP about the future status of the Commission;” (2) “a limited number of draft memoranda
prepared by OVP staff that were intended, in final form, to update the Vice President about the
Commission’s activities and pending litigation regarding the Commission;” and (3) “internal
emails and electronic documents created by OVP and EOP staff in the context of conducting staff
and/or preparatory work for the former Commission, including internal staff discussions about
logistics for the September 2017 meeting.” Defs.’ Mot. and Opp’n at 10–11 (quoting and citing
Decl. of Matthew Morgan (“Morgan Decl.”), ECF No. 74-3, at ¶¶ 2–3).
Dunlap now argues that these three categories of documents are materials encompassed by
the preliminary injunction in this case, as well as Cummock and FACA, because they are
“substantive work of the Commission generated by, prepared for, or shared with any
commissioner” and “substantive Commission materials generated or received by the
Commission’s staff.” Pl.’s Mem. at 10. In response, Defendants argue these documents are not
11
covered by the preliminary injunction and cannot be, as Dunlap has failed to show that he is likely
to have a clear and indisputable right to these specific categories of documents. 3 Defs.’ Mot. and
Opp’n at 16–26, 30–35, 39–42. The Court agrees with Defendants as to these three categories of
documents. Neither Cummock nor FACA establishes that Dunlap has a clear and indisputable right
that would satisfy the strict standard for mandamus. As a result, he is not entitled to these
documents under the preliminary injunction, which required Defendants to produce those
documents for which Dunlap was likely to be succeed on the merits under the statute and
Cummock.
Dunlap suggests that the Court need not examine whether these documents were within the
scope of Cummock and/or FACA because they are covered by the Court’s prior orders. See Pl.’s
Opp’n and Reply at 8. That is not the case. In making this argument, Dunlap repeatedly focuses
on certain language in Dunlap II: “Plaintiff ultimately should receive relevant documents that any
of the former commissioners generated or received. This includes material that commissioners
solicited and subsequently received from third parties.” Dunlap II, 319 F. Supp. 3d at 89. What
Dunlap overlooks, however, is that these sentences refer only to “relevant documents.” A few
sentences earlier, the Court used the same phrase in requiring that Defendants produce “relevant
documents listed on the Vaughn-type index as well as those generated or received afterwards.” Id.
3
Defendants address Dunlap’s arguments in several different portions of their combined Motion
to Dismiss and Opposition. They first address these issues in the context of their Motion to Dismiss
the mandamus claims, as they argue there that Dunlap cannot show that he has a clear and
indisputable right to the documents. Defs.’ Mot. and Opp’n at 16–26, 30–35. As the Court
considers whether Dunlap is entitled to the categories of documents he seeks under the mandamus
standard, these arguments are also applicable in this context and the Court considers them here.
Second, Defendants argue that these documents are not encompassed by the Court’s preliminary
injunction in this case, which this Court also addresses in this section. Id. at 39–42. Defendants
further argue in opposition that Dunlap’s Motion is procedurally improper. See id. at 38–39.
Because the Court denies Dunlap’s Motion on other bases, the Court does not address this latter
argument in this Memorandum Opinion.
12
The prior sentence sheds some light on what “relevant documents” means in this context, as it
referred to “the documents discussed in the Court's December 22, 2017, decision through the time
of the Commission’s termination.” Id. Dunlap assumes that the relevancy of the documents still
at issue is clear, and that essentially all documents related to the Commission must be produced,
see Pl.’s Opp’n and Reply at 10–11, but he is mistaken.
The Court has made several broad findings in this case regarding the documents to which
Dunlap is entitled. In Dunlap I, the Court found that, in light of Cummock, Dunlap had a right to
“fully participate” in the Commission’s proceedings and “a right to access documents that the
Commission is considering relying on in the course of developing its final recommendations.”
Dunlap I, 286 F. Supp. 3d at 106. In short, he had a “right to substantive material that would
inform his full participation in the Commission and its development of recommendations to the
President.” Id. at 107. Rather than catalog all the documents that Dunlap should have received,
the Court provided select examples. See id. at 107–08. Then, in Dunlap II, the Court explained
that Dunlap was entitled to see any “findings, report, or internal characterization that was not
shared with him before it became the final work product of the Commission.” Dunlap II, 319 F.
Supp. 3d at 88. None of these findings clearly apply to the documents at issue here.
These findings remain relevant in light of the D.C. Circuit’s recent opinion in this case,
which confirms that the standard under Cummock applies here. As the D.C. Circuit explained in
Dunlap III, under Cummock, “a FACA committee member should receive information ‘made
available to the [committee] during the course of its deliberative process and without which [the
committee member’s] ability to fully and adequately participate in that process [would be]
impaired.’” Dunlap III, 944 F.3d at 950 (quoting Cummock, 180 F.3d at 292). For example, the
D.C. Circuit there found that emails regarding the members to be appointed to the Committee was
13
not so clearly part of the Committee’s work or deliberative process to establish a likelihood of
success on the merits of satisfying the mandamus standard. Id.Dunlap agrees with this characterization of the Court’s prior findings and the applicable
law, as he argues that the Court’s prior opinions “confirm that the government was and is required
to produce to Secretary Dunlap all substantive Commission documents necessary for his full and
informed participation.” Pl.’s Mem. at 14 (emphasis added). But the Court has not yet determined
whether these specific categories of documents are covered by the preliminary injunction—that is,
whether they are “substantive material that would inform his full participation in the Commission
and its development of recommendations to the President.” Dunlap I, 286 F. Supp. 3d at 106. As
Defendants note, the Court has not previously examined the types of staff materials at issue here.
See Defs.’ Mot. and Opp’n at 39–42. And, as the Court has relied upon Cummock in all its opinions
for guidance on which types of documents the preliminary injunction included, whether Dunlap
may compel production of these documents requires the Court to examine whether he has a right
to these categories of documents under Cummock or FACA.
Moreover, all of this must be considered under the preliminary injunction and mandamus
standards. Pursuant to the preliminary injunction, Defendants had to produce those documents to
which Dunlap was likely to be entitled via writ of mandamus. See Dunlap I, 286 F. Supp. 3d at
105–07 (analyzing Dunlap’s rights through lens of “clear and indisputable right” prong of
mandamus, which was part of discussion regarding likelihood of success on merits). The writ of
mandamus is available “to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “Mandamus is ‘one of the
most potent weapons in the judicial arsenal,’ a ‘drastic and extraordinary remedy reserved for
really extraordinary causes.’” Dunlap III, 944 F.3d at 949 (quoting Cheney v. U.S. Dist. Court,
14
542 U.S. 367, 380 (2004)). “To show entitlement to mandamus, plaintiffs must demonstrate (1) a
clear and indisputable right to relief, (2) that the government agency or official is violating a clear
duty to act, and (3) that no adequate alternative remedy exists.” Am. Hosp. Ass’n v. Burwell,
812 F.3d 183, 189 (D.C. Cir. 2016). These requirements are jurisdictional. Id. Even when these
requirements are met, however, “a court may grant relief only when it finds compelling equitable
grounds . . . . The party seeking mandamus has the burden of showing that its right to issuance of
the writ is clear and indisputable.” Id. (citing Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir.
2002)). The D.C. Circuit has explained that “the word ‘duty’ in § 1361 must be narrowly defined,
and that a plaintiff’s legal grounds supporting the government’s duty to him must ‘be clear and
compelling.’” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (quoting 13th Regional Corp. v.
Dep’t of the Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)).
To summarize, the Court must consider whether Dunlap has a likelihood of success of
establishing a “clear and indisputable” right sufficient to meet the mandamus standard to the three
categories of documents at issue here. To do so, and in light of Dunlap’s current arguments, the
Court must again apply Cummock and FACA to these documents. This application reveals that
Dunlap has not sufficiently established why any of the three categories of documents he now seeks
were materials “made available to the [committee] during the course of its deliberative process
and without which [the committee member’s] ability to fully and adequately participate in that
process [would be] impaired.” Dunlap III, 944 F.3d at 950 (internal quotation marks omitted).
1. The First and Third Categories
The first category of documents are records with a “broader OVP and EOP discussion about
the Commission itself,” such as “internal discussions within OVP and EOP about the future status
of the Commission.” Morgan Decl. ¶ 3(a). The third category of documents are “internal e-mails
15
and electronic documents (e.g., Microsoft Office and Adobe documents) created by OVP and EOP
staff in the context of conducting staff and/or preparatory work for the former Commission.”
Morgan Decl. ¶ 3(c). This includes, for instance, “internal staff discussions about logistics for the
former Commission’s September 12, 2017 meeting.” Id.
Dunlap suggests that Cummock, “on facts identical to this case,” mandates that “all
materials, including staff materials and materials shared with the Vice President,” must be
produced. Pl.’s Mem. at 11. Dunlap improperly applies Cummock to this situation. The D.C.
Circuit held in Cummock that the commissioner was “entitled to review” materials with
“information that was made available to the Commission during the course of its deliberative
process and without which her ability to fully and adequately participate in that process was
impaired.” Cummock, 180 F.3d at 292. Cummock did not, as Dunlap suggests, clearly establish
that Commissioners are entitled to work prepared by staff that is not made available to
Commissioners. In fact, in his briefing, Dunlap assumes without explaining that all the materials
he seeks were substantive materials “available to the Commission during the course of its
deliberative process,” the lack of which would prevent him from “fully and adequately”
participating in the Commission’s work.
But it is far from clear that is the case for these two categories of documents. To begin
with, it is unclear that the documents—which either discussed the Commission itself or logistics
for the Commission—are substantive materials concerning the purpose of the Commission, which
was to “study the registration and voting processes used in Federal elections.” See Executive Order
No. 13,799 § 3, 82 Fed. Reg. at 22,389. It is further unclear how Dunlap would have required
these materials to fully participate in the Commission; in light of the declaration from Matthew
Morgan, Counsel to the Vice President, the materials cannot be described as documents that the
16
Commission was considering relying upon, as they were about the Commission itself, underlying
preparatory and staff work, and meeting logistics. See Morgan Decl. ¶¶ 2–3; see Dunlap I, 286 F.
Supp. 3d at 106. Nor can they be clearly described as reports, findings, or internal characterizations
that might have ultimately become the final work of the Commission. Dunlap II, 319 F. Supp. 3d
at 88. These documents were also not provided to any former members of the Commission,
including the Vice President in his role as Chair of the Commission. This suggests that they would
not have been necessary for Dunlap to fully participate in the Commission. See Morgan Decl.
¶¶ 2–3. These facts also distinguish this case from Cummock, in which the “briefing paper” that
Dunlap references was shared with two Commission members. Cummock, 180 F.3d at 287. In
brief, in no way does Cummock establish a clear and indisputable right to these documents, and
thus Dunlap is unlikely to succeed on the merits and satisfy the mandamus standard by relying
upon Cummock.
Dunlap also argues that FACA itself entitles him to these documents. However, as
documents in this first category were not shared with the Committee, it is not clear how these
documents were “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” under FACA. 5 U.S.C. app. 2 § 10(b) (emphasis added). Dunlap suggests
that this extends to advisory committee staff because the statue refers to “the advisory committee”
rather than “commissioners.” Pl.’s Mem. at 14. But he presents no other authority to support this
conclusion. See id.
In fact, at least one other court in this district has found that not all staff members involved
in committee work are subject to FACA’s disclosure requirements. In National Anti-Hunger
Coalition v. Executive Committee of President’s Private Sector Survey on Cost Control, 557 F.
17Supp. 524 (D.D.C.), aff’d, 711 F.2d 1071 (D.C. Cir. 1983), the court found that staff on “task
forces” that “provide[d] information and recommendations for consideration to the Committee”
were not subject to section 10(b)’s disclosure requirements. Id. at 529. In particular, the court
found that FACA did “not cover groups performing staff functions such as those performed by the
so-called task forces” because they did not “provide advice directly to the President or any agency.”
Id. So too does the language of FACA “distinguish between advisory committee members and
advisory committee staff.” Id. (comparing 5 U.S.C. app. 2 § 5(b)(2) with 5 U.S.C. app. 2
§ 5(b)(5)). “[S]urely Congress,” the court explained, “did not contemplate that interested parties
like the plaintiffs should have access to every paper through which recommendations are evolved,
have a hearing at every step of the information-gathering and preliminary decision-making
process, and interject themselves into the necessary underlying staff work so essential to the
formulation of ultimate policy recommendations.” Id.
While the instant case presents different facts, the reasoning in National Anti-Hunger
Coalition is persuasive and still applies here. The OVP and EOP staff members preparing these
internal documents were not appointed to the Committee. Nor were the internal documents, which
contained “discussion about the Commission itself” and/or regarded “staff and/or preparatory work
for the former Commission,” clearly contributing to the substantive work of the Committee.
Morgan Decl. ¶ 3(a). The declaration submitted by the Government in fact clarifies that the
documents in this category were not “shared with any former Commissioner.” Id. ¶¶ 2–3. Taken
together, this persuades the Court that these documents are not documents to which Dunlap is
clearly and indisputably entitled to under section 10(b). He has therefore also failed to demonstrate
that he has a likelihood of success on the merits of demonstrating that he has a clear and
indisputable right to the documents in categories one and three under FACA.
18
2. The Second Category
The second category of documents is “a limited number of draft memoranda prepared by
OVP staff that, in final form, were intended to update the Vice President in his capacity as Vice
President, not in his capacity as a commission member, about the Commission’s activities and
pending litigation regarding the Commission.” Morgan Decl. ¶ 3(b). Dunlap argues that
Cummock establishes a clear right to these documents on facts that he claims are “identical” to
those in this case. Pl.’s Mem. at 11. The Court disagrees that Cummock establishes a right to these
claims that is sufficiently clear and indisputable to satisfy the mandamus standard.
Vice President Albert Gore was the chair of the committee at issue in Cummock. 180 F.3d
at 286. One of the documents at issue, and the document to which Dunlap analogizes the
documents that were shared with the Vice President here, was a “an inch-thick briefing paper that
[Cummock] saw Commissioners Gore and [John M.] Deutch reviewing.” Id. at 287. As has been
discussed, the D.C. Circuit ultimately found that she was entitled to review “information that was
made available to the Commission during the course of its deliberative process and without which
her ability to fully and adequately participate in that process was impaired.” Id. at 292. While
Dunlap claims that the parties were ordered by the D.C. Circuit to produce the briefing paper, Pl.’s
Mem. at 12, in fact the D.C. Circuit remanded to the district court “to determine whether any
additional materials [fell] within the parameters of information to which Cummock [was] entitled,”
Cummock, 180 F.3d at 293.
Regardless, the briefing paper referenced in Cummock and the documents in this second
category differ in at least two vital ways. First, the briefing paper in Cummock was shared not
only with the Vice President but also with another commissioner. Id. at 287. Here, these
documents were shared only with the Vice President and not with any other Commissioner, and
19
they were shared with the Vice President in his capacity as Vice President. Morgan Decl. ¶¶ 2–3.
Second, the briefing paper in Cummock more clearly contained substantive material relevant to the
work of the commission at issue—Cummock actually saw the briefing paper in Cummock being
reviewed by the two commissioners. 180 F.3d at 287. Here, the draft memoranda were intended
to update the Vice President about “the Commission’s activities and pending litigation regarding
the Commission.” Morgan Decl. ¶ 3(b). These differences are significant in light of the D.C.
Circuit’s ultimate finding that Cummock was entitled to information that was “made available to
the Commission” as part of its “deliberative process” and that she required to “fully and adequately
participate in that process was impaired.” 180 F.3d at 292.
In short, the draft memoranda at issue here do not clearly satisfy the standard in Cummock.
While the memoranda were made available to the Vice President, they were made available to him
not in his role as Chair of the Commission but instead his role as Vice President. Morgan Decl.
¶¶ 2–3. Moreover, as they were not shared with any other members of the Commission or the Vice
President in his role as a Commissioner, it is far from clear that these documents were or would
have become part of the Commission’s “deliberative process” under Cummock, or “documents
that the Commission [was] considering relying on in the course of developing its final
recommendations,” Dunlap I, 286 F. Supp. 3d at 106, to which Dunlap might be entitled. This is
especially the case since the materials were “about the Commission’s activities and pending
litigation regarding the Commission,” Morgan Decl. ¶ 3(b), and not about the Commission’s
underlying purpose or work. That in turn suggests that their absence would not hinder Dunlap’s
full participation in the Commission’s deliberative process. For the same foregoing reasons, these
documents would not be clearly encompassed by FACA section 10(b); they were not clearly “made
available to or prepared for or by” the Committee. See 5 U.S.C. app. 2 § 10(b). Accordingly,
20
Dunlap cannot demonstrate a likelihood of success on the merits regarding his clear and
indisputable right to this third category of documents.
For the foregoing reasons, the Court denies Dunlap’s Motion to Compel Compliance. The
Court now turns to Defendants’ Motion to Dismiss.
B. Defendants’ Motion to Dismiss
Defendants argue that Dunlap’s claims should be dismissed. As Defendants have produced
numerous documents to Dunlap under the preliminary injunction in this case, Defendants appear
to specifically move for dismissal of any claims remaining in light of those productions. This
includes Counts I, III, and IV of the Complaint, which this Court has not previously addressed,
and any remaining claims under Dunlap’s FACA section 10(b) claim in Count II and his mandamus
claim in Count V. The Court agrees with Defendants that the remaining claims should be
dismissed.
1. Subject-Matter Jurisdiction—Mootness (Count I and Count III)
First, Defendants move to dismiss Counts I and III on the basis that the Court lacks subject-
matter jurisdiction to hear them. Defs.’ Mot. and Opp’n at 12–14. Count I of the Complaint alleges
a violation of sections 5(b)(2) and 5(b)(3) of FACA. Compl. ¶¶ 77–85. Section 5(b)(2) of FACA
requires “the membership of the advisory committee to be fairly balanced in terms of the points of
view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2
§ 5(b)(2). Section 5(b)(3) requires that legislation establishing or authorizing the establishment of
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, but will instead be the result of the advisory
committee’s independent judgment.” Id. § 5(b)(3). Dunlap alleges in Count I of his Complaint
21
that these provisions were violated because Dunlap and other commissioners had been precluded
from meaningful participation in the Commission. Compl. ¶¶ 81–85.
Count III of the Complaint alleges a violation of FACA section 9(c), which specifies that
“[n]o advisory committee shall meet or take any action until an advisory committee charter has
been filed.” 5 U.S.C. App. 2 § 9(c). Dunlap alleges that “the Commission and certain
commissioners . . . conducted activities prior to the filing of the Charter on June 23, 2017,”
including certain listed activities, in violation of this provision. Compl. ¶¶ 94–101.
Defendants argue that these non-document claims are moot in the wake of the
Commission’s dissolution and, as a result, this Court lacks subject-matter jurisdiction over them.
Defs.’ Mot. and Opp’n at 12–14. The jurisdiction of federal courts is limited by Article III of the
Constitution to the adjudication of actual, ongoing cases or controversies. This limitation “gives
rise to the doctrines of standing and mootness.” Foretich v. United States, 351 F.3d 1198, 1210
(D.C. Cir. 2003); see Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C. Cir. 2011) (“Article III of
the Constitution limits the federal courts to adjudication of actual, ongoing controversies.”).
Pursuant to the mootness doctrine, it “is not enough that the initial requirements of standing and
ripeness have been satisfied; the suit must remain alive throughout the course of litigation, to the
moment of final appellate disposition. If events outrun the controversy such that the court can
grant no meaningful relief; the case must be dismissed as moot.” People for the Ethical Treatment
of Animals, Inc. v. United States Fish & Wildlife Serv., 59 F. Supp. 3d 91, 95 (D.D.C. 2014)
(internal quotation marks and citations omitted) (quoting 13B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3533 (3d ed. 2014); McBryde v. Comm. to Review Circuit
Council Conduct and Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 55
(D.C. Cir. 2001)). “A case is moot when the challenged conduct ceases such that there is no
22
reasonable expectation that the wrong will be repeated in circumstances where it becomes
impossible for the court to grant any effectual relief whatever to the prevailing party.” United
States v. Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009) (internal quotation marks
omitted) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)).
Courts in the D.C. Circuit have routinely held that claims based on FACA’s non-document,
procedural requirements are mooted when the relevant advisory committee ceases to exist. See
Freedom Watch, Inc. v. Obama, 859 F. Supp. 2d 169, 174 (D.D.C. 2012) (“Because there are no
grounds to find that the alleged committee, even if it did at some point exist, exists at present, the
case is moot with respect to [plaintiff’s] claims for advance notice of, and the ability to participate
in, any future meetings of the [committee], and with respect to [plaintiff’s] claim for the
appointment of ‘at least one person with a different point of view’ to the committee.”); Citizens for
Responsibility & Ethics in Washington v. Duncan, 643 F. Supp. 2d 43, 51 (D.D.C. 2009)
(“Regarding the Department’s other alleged FACA violations, including the violation of FACA’s
open meetings and charter requirements, the Department’s establishment of the New Panel renders
these claims moot.”); Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 879 F. Supp. 103, 106
(D.D.C. 1994) (“Plaintiffs’ suggestion that a declaratory judgment might be appropriate even if the
working group has been terminated and all appropriate working group documents have been
publicly released is also rejected. At that point, there will simply be no continuing case or
controversy for judicial resolution. Nor will there be any basis for injunctive or other equitable
relief. The case will in fact be moot, and defendants will be legally entitled to dismissal.”); see
also Byrd v. E.P.A., 174 F.3d 239, 244 (D.C. Cir. 1999) (noting that plaintiff’s “injury would be
mooted if EPA convened another panel . . . in compliance with FACA and provided [plaintiff] with
all panel documents either before or at the meeting”).
23
Dunlap recognizes that courts have so held and therefore “does not oppose dismissal
without prejudice of Claims One and Three and the related requested declaratory relief.” Pl.’s
Opp’n and Reply at 25. The Court agrees that Counts I and III are moot and accordingly dismisses
them.
2. Failure to State a Claim—No Private Cause of Action under FACA (Count II)
Defendants next move to dismiss Count II of the Complaint, which alleges a violation of
FACA section 10(b), on the basis that there is no private cause of action under FACA. This section
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). In response, Dunlap does not appear to contest that FACA itself does not
provide a private cause of action. See, e.g., Pl.’s Opp’n and Reply at 30–31 (arguing that violations
of FACA may be addressed by mandamus). Instead, he suggests that his claims may be brought
under the APA or the mandamus statute. Id. at 25–31.
The Court agrees that courts in this district have, in recent years, consistently found that
“FACA does not provide for a private cause of action.” Lawyers’ Comm. for Civil Rights Under
Law v. Presidential Advisory Comm’n on Election Integrity, 265 F. Supp. 3d 54, 66 (D.D.C. 2017);
see also, e.g., Ctr. for Biological Diversity v. Tidwell, 239 F. Supp. 3d 213, 221 (D.D.C. 2017)
(finding that “that FACA does not provide a private cause of action in this case”); Judicial Watch,
Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24, 30 (D.D.C. 2010) (“[T]he court holds that the
FACA does not provide the plaintiff with a private right of action.”); Judicial Watch, Inc. v. Nat’l
Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 34 (D.D.C. 2002) (explaining that “this Court cannot
24
read into a statute a cause of action that Congress has not expressly created” and consequently
dismissing claims brought under FACA).
However, the Court also agrees that violations of FACA may be redressed under other
statutes as appropriate. See, e.g., Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 34 (D.D.C.
2011) (finding that claims for violations of FACA could be brought under mandamus statute,
28 U.S.C. § 1361); Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d at 34 (finding that plaintiffs
had sufficiently pled certain claims under APA for failure to comply with FACA). Accordingly, in
light of this precedent, the reasoning therein, and Dunlap’s silence on the issue of whether FACA
provides a private cause of action, the Court dismisses Dunlap’s claims in Counts I through III
insofar as they seek to rely solely on FACA. The Court does not dismiss Dunlap’s claims brought
under the APA or the mandamus statute on this basis.
3. Failure to State a Claim—APA Does Not Apply (Count IV)
Defendants further move to dismiss Count IV of the Complaint, in which Dunlap alleged
that each Defendant’s actions were final agency actions that were arbitrary and capricious in
violation of the APA. Compl. ¶¶ 102–06. In particular, he alleged that the Defendants violated
the APA by:
(i) refusing to provide Secretary Dunlap with the Commission’s records, in
violation of Section 10 of FACA; and (ii) failing to ensure that the Commission is
fairly balanced in terms of the points of view represented and the functions to be
performed by the advisory committee in violation of Section 5 of FACA.
Id. ¶ 103. The APA provides for judicial review of certain agency actions and requires the
reviewing court to set aside any “agency action, findings, and conclusions” found to be, among
other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). However, an action must be a “final agency action” to be challenged
under this provision of the APA. Id. at § 704.
25
Defendants argue that Dunlap’s APA claims must be dismissed because the former
Commission was not an agency subject to APA. Defs.’ Mot. and Opp’n at 14–16. In response,
Dunlap contends that Defendant the General Services Administration (“GSA”) and its designee,
Andrew Kossack, “failed to ensure the Commission complied with FACA.” Pl.’s Opp’n and Reply
at 25. But, Defendants claim, Dunlap has failed to sufficiently plead a claim under the APA
because Dunlap has failed to explain how GSA or its designee played any role in managing or
producing the Commission’s records. Defs.’ Reply at 14–18.
Before diving into what is still contested by the parties, the Court examines what is not in
contention. Dunlap no longer appears to suggest that all the Defendants have violated the APA.
In his opposition, Dunlap focuses solely on Defendants associated with the GSA. See Pl.’s Opp’n
and Reply at 25 (“Secretary Dunlap has a claim under the Administrative Procedure Act (‘APA’)
because the General Services Administration (‘GSA’)—and its designee, Andrew Kossack— have
failed to ensure the Commission complied with FACA.”); id. at 27 (“Secretary Dunlap has
adequately pled that defendants GSA and Kossack violated the APA; Defendants’ motion to
dismiss this claim against these defendants should be denied.”). At no point in his briefing does
he explain how he has sufficiently plead an APA claim against the other Defendants, including the
Commission itself, the Vice President (Chair of the Commission), Kris W. Kobach (Vice Chair of
the Commission), EOP, OVP, the Office of Administration, and Marcia L. Kelly (Director of the
Office of Administration), and he appears to concede that any APA claims against these
Defendants should be dismissed. See id. at 27 (concluding only that claims against GSA and
Kossack should not be dismissed). As Dunlap does not address the arguments against the other
Defendants, he has conceded them, and any APA claims against them are dismissed. See Hopkins
v. Women’s Div., Gen. Bd. of Glob. Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well
26
understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing
only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.”).
Moreover, as noted above, Dunlap concedes that his claims under sections 5 and 9 of
FACA have been mooted by the dissolution of the Commission. See Pl.’s Opp’n and Reply at 25.
For the same reasons as discussed above, any claims arising out of those sections brought under
the APA are also mooted. Nor does Dunlap address any APA claims pursuant to the sections of
FACA not related to document disclosures in his opposition, despite Defendants arguing that they
should be dismissed. See id. at 25 (addressing only “decision by the GSA about the release of
documents”). Accordingly, any APA claims against Defendants related to those provisions are
also dismissed.
What remains at issue is whether Dunlap has sufficiently pled an APA claim against
Defendants GSA (including its Administrator) and Kossack related to section 10(b) of FACA. To
state an APA claim, Dunlap must identify an “agency action” that is “final.” 5 U.S.C. § 704. The
Court agrees with Defendants that Dunlap has failed to sufficiently allege an APA claim against
these Defendants.
Dunlap’s Complaint, in fact, has few allegations regarding GSA. He alleged that it
“provide[d] the Commission with such administrative services, funds, facilities, staff, equipment,
and other support services as may be necessary, and [had to] perform the President’s functions
under FACA.” Compl. ¶ 15; see also id. ¶ 71 (discussing same in context of Executive Order that
established Commission). He also clarified that the Commission was registered in GSA’s “FACA
database,” and that the page for the Commission within that database had the Commission’s
Charter. Id. ¶ 72. Lastly, the Complaint alleged that “GSA posted notice in the Federal Register
27
on July 5, 2017 that the Commission would meet on July 19, 2017.” Id. ¶ 73 (citing 2017 Fed.
Reg. 14210).
The Complaint has more allegations regarding Defendant Kossack. Dunlap alleges that
Kossack was the Designated Federal Officer for the Commission, id. ¶ 14, and that he told the
Commissioners in an email that he would “ensure the Commission complies with” FACA, id. ¶ 75.
On October 17, 2017, Dunlap allegedly wrote to Kossack to request “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.” Id. ¶ 53 (internal quotation marks omitted). He
explained in that letter that without this information, “he could not competently carry out his duties
as a Commissioner,” and that he was “entitled to the information” under FACA and Cummock. Id.
¶ 59. Kossack responded that he was consulting with counsel and would be back in touch soon.
Id. ¶ 60. Then, according to Dunlap, Kossack did not respond to Dunlap’s November 1, 2017
renewal of his request for Commission documents. Id. ¶¶ 62–63.
In his briefing, Dunlap suggests that the final agency action by the GSA that he challenges
is “a decision by the GSA about the release of documents.” Pl.’s Opp’n and Reply at 25. But at
no point does Dunlap identify in either his Complaint or his briefing what exactly that decision
was, when it occurred, or how it was a final decision. To address this, Dunlap seems to imply that
Kossack was either an employee or agent of GSA and that he made decisions with regard to the
release of Commission documents. Pl.’s Opp’n and Reply at 26–27. But although he claims that
Kossack was appointed by the GSA Administrator “to ensure that the Commission complied with
FACA,” id. at 26, he still does not explain how that imputes Kossack’s alleged decisions to the
GSA. He offers no other support for his APA claim against the GSA. Indeed, Executive Order
13,799, which Dunlap references in his Complaint, explained that GSA was to solely “provide the
28
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.” Executive
Order No. 13,799 § 7, 82 Fed. Reg. 22,389. Dunlap does not allege that GSA had any authority
over the documents at issue, or explain what decisions they had made, and Executive Order 13,799
suggests that they were not in any position to make any such decisions. Accordingly, the Court
agrees that Dunlap has failed to identify any final agency action on the part of those Defendants,
with the potential exception of Kossack acting on their behalf.
But review of Dunlap’s allegations and authorities reveals that he has also failed to
sufficiently plead an APA claim against Kossack. In particular, while he appears to allege that
Kossack’s action was not producing the documents that Dunlap requested of him, see Compl. ¶¶
53–63, he does not fully address why Kossack’s action would be an “agency action.” The parties
do not dispute that, aside from Kossack’s position as the Designated Federal Officer, he was a staff
member in OVP. See, e.g., Pl.’s Mot. to Compel, Ex. 4 (Email from Andrew J. Kossack titled
“Welcome; Initial Organizational Call”), ECF No. 73-5, at 2 (containing Kossack’s signature,
which identified him as Associate Counsel in OVP); Pl.’s Opp’n and Reply at 26 n.5 (clarifying
that Kossack was sued in his official capacity and not as OVP staff member); Def.’s Reply at 14–
15 (arguing that Kossack was never “an employee or agent of GSA” while arguing that OVP is
not subject to APA). It is far from clear that his actions as a member of OVP would be subject to
the APA. See Wilson v. Libby, 535 F.3d 697, 707 (D.C. Cir. 2008) (finding that Office of President
and Vice President are not agencies in similar context under Privacy Act).
Dunlap does not argue that Kossack is subject to the APA on account of that position. He
instead suggests that Kossack’s designation as the Designated Federal Officer by GSA has made
him (and GSA) subject to the APA. But Dunlap has failed to explain why Kossack’s designation
29
would subject him to the APA. There is nothing in the Executive Order establishing the
Commission and cited by Dunlap that suggests that Kossack became an employee or agent of
GSA. The Commission’s Charter, which Dunlap references and cites to in his Complaint, see,
e.g., Compl. ¶¶ 15, 46, 57, 70–72, is also attached as an exhibit to his Motion to Compel, see
Charter, Presidential Advisory Commission on Election Integrity (“Charter”), ECF No. 73-4. It
specified that, “[p]ursuant to 41 CFR § 102-3.106 and in consultation with the chair of the
Commission,” the Vice President, GSA would “appoint a full-time or part-time federal employee
as the Commission’s Designated Federal Officer (‘DFO’),” who would “approve or call all
Commission meetings, prepare or approve all meeting agendas, attend all Commission meetings
and any subcommittee meetings, and adjourn any meeting when the DFO determines adjournment
to be in the public interest.” Charter ¶ 8. This language does not suggest that Kossack was acting
on behalf of GSA or that his status as a member of OVP was altered. Cf. 41 C.F.R. 102-3.130(h)
(GSA regulation explaining that federal employees assigned duties to an advisory committee
remain covered by their previous compensation system).
Furthermore, Dunlap does not allege that either GSA or Kossack have control over the
documents at issue any longer. Basically, while neither party puts it in such terms, it is unclear
how Dunlap’s APA claims are redressable against Defendants. See Smith v. United States, 237 F.
Supp. 3d 8, 11 (D.D.C. 2017) (“Standing requires, at a minimum, that the Plaintiff have suffered
an injury in fact, that was or is actual or imminent, not conjectural or hypothetical; that there be a
causal relationship between the injury and the basis for the claim; and that it be likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.” (internal quotation
marks omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992))), aff’d, 715 F.
App’x 10 (D.C. Cir. 2018).
30
As Defendants argue in their briefing, after dissolution of the Commission, the custodian
of the documents in question is no longer Kossack or GSA, but instead the White House. Defs.’
Mot. and Opp’n at 15; Def.’s Reply at 17. In fact, the Court has previously “recognized that
management of the Commission documents is now properly the province of the President and Vice
President, in conjunction with the Archivist, pursuant to the Presidential Records Act” (“PRA”).
Aug. 13, 2018 Order, ECF No. 55, at 1. Dunlap has failed to allege how, even if Kossack and
GSA had been subject to APA claims regarding the documents, any favorable decision from this
Court with respect to Kossack, GSA, and the GSA Administrator would redress his injuries, as
those parties no longer have control over the documents at issue. Dunlap also failed to address
this in his briefing. See Defs.’ Mot. and Opp’n at 14–16 (repeatedly raising point that office of
President and Vice President have custody over documents at issue); Pl.’s Opp’n and Reply at 25–
27 (not addressing issue of current custodianship in relation to this claim after Defendants raised
argument). Based on that apparent concession and for the foregoing reasons, the Court finds that
Dunlap has failed to sufficiently allege a redressable APA claim against GSA, its Administrator,
and Kossack. His APA claims are accordingly dismissed.
4. Failure to State a Claim—Lack of Mandamus Jurisdiction (Count V)
Lastly, Defendants argue that Dunlap’s remaining claims brought under mandamus in
Count V must be dismissed because he cannot meet the stringent mandamus standard and the Court
therefore lacks jurisdiction over the claims. The Court must first examine exactly what Dunlap’s
claims still entail at this point in the litigation.
In his Complaint, Dunlap originally requested that the Court “enter a writ of mandamus
compelling Defendants to comply with their clear, indisputable, non-discretionary obligations
under FACA.” Compl. ¶ 108. After the Court issued its preliminary injunction in this case, and
31
denied reconsideration of that preliminary injunction, certain documents were provided to Dunlap.
Consequently, the parties further met and conferred and, on October 24, 2018, updated the Court
on the categories that remained at issue. See Joint Status Report, ECF No. 63. The Court then
ordered that Dunlap cease pursuing six categories of documents that he had offered to conditionally
forego. Order (Jan. 28, 2019), ECF No. 64, at 1. The Court also ordered that Defendants produce
additional categories of documents, with certain exceptions. Id. at 2. With respect to the remaining
categories of documents at issue, the Court required further description and reasoning from the
parties. Id. at 2–4. The parties submitted a further update on February 27, 2019. See Joint Status
Report ECF No. 66. Defendants had produced certain at-issue categories in lieu of providing
further information and had provided to Dunlap the categories of documents that they had
conditionally offered to provide. Id. at 1–2.
Based on the representations in the parties’ previous filings, and on the briefing presented
by the parties, it appears that the documents Dunlap claims he is still entitled to are those at issue
in his Motion to Compel, which the Court considered, and denied, above. See Pl.’s Mem. at 1
(outlining remaining contested categories); see also id. at 7–10 (describing, from Dunlap’s
perspective, series of events following issuance of the preliminary injunction and discussing the
remaining categories of documents sought by Dunlap); Defs.’ Mot. and Opp’n at 17 (proposing
that documents remaining at issue in case were three categories of “OVP and EOP Internal
Records”); Mar. 6, 2020 Joint Status Report, ECF No. 92, at 1. The scope of his remaining
mandamus claim thus appears to overlap with the categories of documents to which the Court has
found Dunlap is not entitled to under the mandamus standard because he cannot show a clear and
32
indisputable right to any of the categories of still-contested documents. 4 See Section III.A, supra.
Those findings carry over here, where the Court must consider whether it has mandamus
jurisdiction over his remaining claims. See Burwell, 812 F.3d at 189 (explaining that mandamus
requirements are “are jurisdictional; unless all are met, a court must dismiss the case for lack of
jurisdiction”). “To show entitlement to mandamus, [Dunlap] must demonstrate (1) a clear and
indisputable right to relief, (2) that the government agency or official is violating a clear duty to
act, and (3) that no adequate alternative remedy exists.” Id. For the same reasons catalogued in
depth above in Section III.A of this Memorandum Opinion, the Court finds that Dunlap has not
satisfied this standard. Most importantly, he has not demonstrated that he has a clear and
indisputable right to these documents under Cummock and/or FACA. Accordingly, for the reasons
discussed above in Section III.A of this Memorandum Opinion, the Court agrees that Dunlap has
failed to meet the mandamus standard with respect to the categories of documents still at issue.
His claims as to those documents must therefore be dismissed.
C. Adequacy of the Records Search
Dunlap further claims that the method of searching and identifying Commission records
was inadequate. See Pl.’s Mem. at 10 n.18; Pl.’s Opp’n and Reply at 24–25. Dunlap contends that
the electronic records of custodians other than Kossack should also be searched, including those
belonging to the Vice President and other staff members “conducting business on behalf of the
Commission.” Pl.’s Opp’n and Reply at 24–25. Before considering Dunlap’s arguments, the Court
considers the process used by Defendants. 5
4
The exception might be the emails that were at issue in the appeal to the D.C. Circuit. See Joint
Status Report, ECF No. 92, at 5. However, in light of the D.C. Circuit’s ruling, the Court must
also dismiss that claim because it lacks mandamus jurisdiction over it. See supra note 2.
5
Defendants do not directly address Dunlap’s arguments at length. Defendants do discuss some
of Dunlap’s arguments regarding collection efforts in relation to the Presidential Records Act, see
33
The Declaration of Matthew Morgan, Counsel to the Vice President, ECF No. 74-3,
outlined the process used to identify electronic records. Morgan Decl. ¶ 1. First, it indicates that
Defendants searched Kossack’s email for responsive records. Id. Second, the Declaration also
indicates that Defendants followed the procedure laid out in their August 27, 2018 Notice of
Categories of Withheld Documents, ECF No. 58. There, Defendants explained that electronic
records “are not segregated and identified as Commission records,” id. at 1–2, unlike paper
records. Electronic documents related to the Commission that were generated by the White House,
OVP, or EOP that fell under the PRA were preserved under the PRA. Id. at 2. Counsel for
Defendants searched those electronic records by following the process used to create the Vaughn-
type index submitted in Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory
Commission on Election Integrity, Case No. 17-cv-1354 (CKK), a case that has since been
dismissed. 6 Id.
Defendants’ search process was described in a Notice of Filing and two declarations from
Andrew J. Kossack in that case. Sept. 29, 2017 Notice of Filing, ECF No. 33, No. 17-cv-1354
(CKK) (DDC). In particular, the Fourth Declaration of Andrew J. Kossack, ECF No. 33-2,
explains some of the process used to preserve and collect records. In conjunction with the
September 12, 2017 Commission meeting, Kossack asked Commission members to “identify and
collect all documents which he or she had created, gathered, received, or used in connection with
the Commission,” including “any documents that they did not share with other Commission
members. Fourth Kossack Decl. ¶¶ 5–6. The instructions “directed Commissions to review any
Defs.’ Reply at 18 n.9, and discuss in another context their methodology in reviewing and
producing certain documents, see Defs.’ Mot. and Opp’n at 40–42, but do not appear to directly
address the adequacy of their search in depth, other than in the Morgan Declaration.
6
This Court did not consider the adequacy of these searches in that case before it was voluntarily
dismissed.
34
email accounts they used to conduct Commission business, as well as other forms of electronic
communication, including text messages and Facebook and other social media.” Id. ¶ 5. He also
provided a certification for each Commission member to sign attesting that he or she had
completed the necessary searches and further provided a Federal Express envelope to members
present at the September 12, 2017 meeting to send their materials to him or directly to counsel.
Id. ¶ 7. Each of the Commission members apparently complied with his instructions and provided
the documents they collected to either him or Department of Justice counsel, with the exception of
certain withheld documents. Id. ¶ 9. The Declaration was signed on September 29, 2017 and he
indicated intent to follow the same process for any future meetings. Id. ¶ 10. In particular, he
“reminded Commission members that they should copy or forward to [his] email address or
another Commission staff email address all communications related to Commission business,
regardless of whether or not any disclosure obligation attache[d].” Id. Kossack had his email
account mirrored and searched and the other full-time Commission staff member searched his own
email account and provided to counsel copies of all messages on which Kossack was not copied. 7
Id. ¶ 8. In short, in this case, the electronic records searched using a combination of manual review
and search terms were documents in Kossack’s email account and on his hard drive that ran
through the end of the Commission. Aug. 27, 2018 Notice of Categories of Withheld Documents,
ECF No. 58, at 1–2; Morgan Decl. ¶ 1. The origins of these documents were included in the
Vaughn-type index, which listed as the document originator various persons and groups, including
GSA, various Commission members, and Commission staff. Sept. 29, 2017 Notice of Filing Ex.
3, ECF No. 33–3, No. 17-cv-1354 (CKK) (DDC).
7
This seems to contradict Dunlap’s supposition that no other Commission staff members had their
electronic records searched in creating the Vaughn-type index referenced in this case. Pl.’s Opp’n
and Reply at 24.
35
Dunlap’s arguments that the electronic records identification and search was inadequate
raise several issues. Most importantly, as noted above, the Court has previously found that many
aspects related to the collection, retention, and management of the documents at issue are no longer
within the Court’s jurisdiction. Management of the Commission documents is now the province
of the President and Vice President, as well as the Archivist, under the Presidential Records Act.
Aug. 13, 2018 Order, ECF No. 55, at 1. And judicial review of the President’s compliance with,
and acts under, the Presidential Records Act is precluded. Armstrong v. Bush, 924 F.2d 282, 290
(D.C. Cir. 1992); see June 27, 2018 Mem. Op., ECF No. 52, at 28–29; Aug. 13, 2018 Order, ECF
No. 55, at 1. While the Court might have had a role in ensuring that Dunlap receives certain
documents that have already been designated as Commission records, see Aug. 13, 2018 Order,
ECF No. 55, at 1, it is not clear exactly what role the Court can play in evaluating the adequacy of
Defendants’ search at this juncture if it involves the searching or identification of electronic records
governed by the PRA.
While Dunlap argues that his current argument “does not seek or require reconsideration
of this Court’s rejection of his prior request that the Court supervise Defendants’ document
collection and preservation obligations,” Pl’s Opp’n and Reply at 25, in effect he is raising issues
similar to those that this Court has previously considered related to the management of these
documents under the PRA. In particular, Dunlap argues that “the method of identifying
Commission records was inadequate,” id. at 24 (emphasis added), and he specifically pushes for a
search of the Vice President’s electronic records, id. at 24–25. But this Court has found that official
Commission documents “created or received by units or individuals within the EOP, or by those
within the OVP,” are covered by the PRA. June 27, 2018 Mem. Op., ECF No. 52, at 27. And the
Commission records more generally are covered by the PRA. See id. It is therefore problematic
36
to ask this Court to consider whether the methods used to identify Commission records were
adequate. Dunlap offers no guidance or precedent addressing this interaction between FACA and
the PRA.
Even if the Court could consider this question, however, the search would be adequate in
this instance. Few cases discuss the adequacy of searches for records in the context of FACA
section 10(b), and FACA itself does not appear to provide any particular standard. At least one
case, however, has applied the same standard used in Freedom of Information Act (“FOIA”) cases
at the summary judgment stage. See, e.g., Citizens for Responsibility & Ethics in Washington v.
Duncan, 643 F. Supp. 2d 43, 48 (D.D.C. 2009). The Court will do the same here, even though
FOIA and the PRA generally serve different purposes, and will take into account that this question
does not arise here in the summary judgment context, where the affidavits submitted by agencies
regarding searches are generally more detailed. See Judicial Watch, Inc. v. U.S. Secret Serv.,
726 F.3d 208, 227–28 (D.C. Cir. 2013).
An agency fulfills its obligations to perform an adequate search if it can demonstrate
beyond material doubt that its search was “reasonably calculated to uncover all relevant
documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal
quotation marks omitted) (quoting Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir.
1990)). Agency affidavits “enjoy a presumption of good faith, which will withstand purely
speculative claims about the existence and discoverability of other documents.” Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Ultimately, the adequacy of a search is
“determined not by the fruits of the search, but by the appropriateness of the methods used to carry
out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003); see
also Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (“[T]he issue to be
37
resolved is not whether there might exist any other documents possibly responsive to the request,
but rather whether the search for those documents was adequate.”).
Here, the primary electronic records searched belonged to Kossack. 8 Morgan Decl. ¶ 1.
As Kossack noted in his Fourth Declaration in Lawyers’ Committee for Civil Rights Under Law v.
Presidential Advisory Commission on Election Integrity, ECF No. 33-2, No. 17-cv-1354 (CKK)
(DDC), he was the main point of contact for members of the Commission with respect to
Commission records, id. ¶¶ 7–10. Commissioners were to submit their Commission records to
either him or Department of Justice counsel. Id. He was one of two full-time staff members
working for the Commission and was the Designated Federal Officer for the Commission. See id.;
Pl.’s Mot. to Compel, Ex. 4 (Email from Andrew J. Kossack titled “Welcome; Initial
Organizational Call”), ECF No. 73-5. As Dunlap himself claims, it was Kossack who told the
Commissioners that it was his role to “support the Commission’s work and its members with
administrative needs and ensure the Commission complies with” FACA. Pl.’s Mot. to Compel,
Ex. 4 (Email from Andrew J. Kossack titled “Welcome; Initial Organizational Call”), ECF No. 73-
5.
Considering Kossack’s role as the Designated Federal Officer for the Commission, and
considering that other Commission documents were retained and searched in paper form, Morgan
Decl. ¶ 1, it was reasonable to focus the electronic records search on his email and hard drive. This
is especially the case considering the standard for relevant documents. See, e.g., Dunlap III,
944 F.3d at 950 (“[A] FACA committee member should receive information ‘made available to
8
Although it is not discussed by either party in this case, it does appear that another staff member’s
electronic records were at least partially searched to create the Vaughn-type index referenced in
this case. Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Commission
on Election Integrity, No. 17-cv-1354 (CKK) (DDC), ECF No. 33-2 ¶ 8.
38
the [committee] during the course of its deliberative process and without which [the committee
member’s] ability to fully and adequately participate in that process [would be] impaired.’”
(quoting Cummock, 180 F.3d at 292)); see also Aug. 27, 2018 Notice of Categories of Withheld
Documents, ECF No. 58 (explaining Defendants’ rationale in searching for relevant documents).
In other words, searching his electronic records, in conjunction with the search of the paper
records, see Morgan Decl. ¶ 1, was reasonably calculated to uncover all relevant documents.
Dunlap’s speculation that relevant electronic records may be found elsewhere is therefore
unavailing.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Compel Compliance
with the Court’s Orders, ECF No. 73. The Court further GRANTS Defendants’ Motion to Dismiss,
ECF No. 74, insofar as it seeks dismissal of Plaintiff’s claims that are still at issue and raised in
his Motion to Compel Compliance.
An appropriate Order accompanies this Memorandum Opinion.
Dated: May 29, 2020
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
39