American Civil Liberties Union v. Trump

266 F. Supp. 3d 133
CourtDistrict Court, District of Columbia
DecidedJuly 18, 2017
DocketCivil Action No. 2017-1351
StatusPublished
Cited by8 cases

This text of 266 F. Supp. 3d 133 (American Civil Liberties Union v. Trump) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Civil Liberties Union v. Trump, 266 F. Supp. 3d 133 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This case arises from the establishment by Executive Order of the Presidential Advisory Commission on Election Integrity (the “Commission”). Plaintiffs allege that the Commission is an advisory committee subject to the disclosure, notice, and reporting requirements of the Federal Advisory Committee Act, codified at 5 U.S.C. app. 2 (“FACA”). Pending before the Court is Plaintiffs’ [3] Motion for Temporary Restraining Order and Preliminary Injunction. That motion seeks an order requiring the Commission, “in advance of the Commission’s planned July 19 meeting, to; (1) ensure that any telephonic meetings held by the Commission comply with the notice and public access requirements of FACA; (2) make available for public inspection and copying at a single, [publicly] accessible location all minutes, agendas, reports, studies and documentary material made available to or prepared for or by Commission members; and (3) provide physical access to the July 19 meeting by moving it, with public notice, to a [publicly] accessible location.” Pis.’ Mem. at 4-5. The only jurisdictional basis pursued by Plaintiffs is in the form of mandamus. Because the Court concludes that mandamus jurisdiction is unavailable in this case at the present time, Plaintiffs’ motion must be denied. Accordingly, upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a whole, Plaintiffs’ [3] Motion for Temporary Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE. 2

I. BACKGROUND

A. Statutory Background

FACA imposes a number of procedural requirements on “advisory committees,” *135 which are defined to include “any committee ... which is ... established or utilized by the President ... in the interest of obtaining advice or recommendations for the President .5 U.S.C. app. 2 § 3(2). The statute exempts “any committee that is composed wholly of full-time, of 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).

To achieve that purpose, FACA requires that an advisory committee, inter alia, file a charter before meeting or taking any action, 5 U.S.C. app. 2 § 9(c), hold its meetings “open to the public,” id. § 10(a)(1), publish “timely notice” of each such meeting in the Federal Register, id. § 10(a)(2), keep minutes and other records of its meetings, id. § 10(c), and allow “interested 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 Background

The Commission was established by Executive Order on May 11, 2017. Executive Order No. 13,799, 82 Fed- Reg. 22,389 (May 1-1, 2017) (“Exec. Order”). According to the Executive Order, the Commission’s purpose is to- “study the' registration and voting processes used in Federal elections.” Id. § .3. The Executive Order states the Commission is “solely advisory,” and that it shall disband 30 days after submitting a report to the President on three areas related to “voting processes” in Federal elections. Id. §§ 3, 6. The Vice President is the chair of the Commission, and the President may appoint 15 additional members. From this group, the Vice President is permitted to appoint- a Vice Chair of the Commission. On the same day the Commission was established, Kris W. Ko-bach, Secretary of State for Kansas, was named Vice Chair. Compl. ¶ 31; Decl. of Kris Kobach, Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, No. 17-cv-1320, 2017 WL 2861543 (D.D.C. July 3, 2017) (“EPIC"), EGF No. 8-1, at 1.

Apart from the Vice President and the Vice Chair, there are presently ten other members of the Commission, including Commissioner Christy McCormick of the Election Assistance Commission (the *136 “EAC”), who is currently the only federal agency official serving on the Commission,- and a number of state election officials, both Democratic and Republican, and a Senior Legal Fellow of the Heritage Foundation. Decl. of Andrew J, Kossack, ECF No. 16-1 (“Kossack Decl,”), ¶ 1. According to' Defendants, “McCormick is not serving in her official capacity as a member of the EAC.” EPIC, Second Decl. of Kris W. Kobach,' ECF No. 11-1, at 2. The Executive Order also provides that the General Services Administration (“GSA”), a federal agency, will “provide the Commission with such administrative services, funds,' facilities, staff, equipment, and other support services as may be necessary to carry out its mission on a reimbursable basis,” and that other federal agencies “shall ehdeavor to cooperate with the Commission," Exec. Order, §§ 7(a), (b>. Furthermore, the Administrator of General Services — the agency head of the GSA — is charged with performing “any functions of the President under [FACA], except for those in section 6[,]” to the extent that FACA applies to the Commission. Id, § 7(c),

The Commission filed a charter on June 23, 2017. See Charter, available at https:// www.whitehouse.gov/sites/whitehouse.gov/ files/docs/commission-charter.pdf (last accessed on July 18, 2017). In pertinent part, the Charter provides that the Commission “will function solely as an advisory body,” id. ¶ 4; that the Commission is established in accordance with the Executive Order “and the provisions of the Federal Advisory Committee Act,”

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Cite This Page — Counsel Stack

Bluebook (online)
266 F. Supp. 3d 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-civil-liberties-union-v-trump-dcd-2017.