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Autor v. Blank

United States District Court, District of Columbia

September 14, 2015

ERIK O. AUTOR et al. Plaintiffs,
REBECCA M. BLANK et al. Defendants.



On February 23, 2015, this case was referred to the undersigned for resolution of plaintiffs’ motion for attorney’s fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.[1] See Mot. at 1. This motion comes after plaintiffs’ voluntary dismissal of their civil action against the Department of Commerce and the United States Trade Representative, which challenged the government’s policy of excluding federally-registered lobbyists from serving on Industry Trade Advisory Committees. Id. For the reasons stated below, plaintiffs’ motion will be denied.


A. The Lobbyist Ban

On June 19, 2010, President Obama issued an Executive Memorandum directing agency and executive department heads “not to make any new appointments or reappointments of federally registered lobbyists to boards and commissions.” Presidential Memorandum, Lobbyists on Agency Boards and Commissions, 75 Fed. Reg. 35, 955, 35, 955 (June 18, 2010). The Office of Management and Budget (“OMB”) implemented the President’s policy. Final Guidance on Appointment of Lobbyists to Federal Boards and Commissions, 76 Fed. Reg. 61756-01 (Oct. 5, 2011); Autor v. Pritzker, 740 F.3d 176, 179 (D.C. Cir. 2014) (“Autor II”). Known as the Lobbyist Ban, the policy applied to (among other groups) Industry Trade Advisory Committees (“ITACs”) established by the United States Trade Representative and the Department of Commerce. Autor v. Blank, 892 F.Supp.2d 264, 267 (D.D.C. 2012) (“Autor I”), rev’d sub nom. Autor II, 740 F.3d 176. ITACs are presidentially established advisory committees that provide federal consultation with the private sector regarding United States trade policy, including trade agreement negotiations, development, operations, and implementation. See 19 U.S.C. § 2155(a)(1)(2). The purpose of ITACs is to “be representative of all industry, labor, agricultural, or service interests (including small business interests) in the sector or functional areas concerned.” Id. § 2155(c)(2).

Plaintiffs are six federally registered lobbyists who brought a constitutional challenge to the policy barring them from serving on ITACs. Compl. ¶¶ 5–6. Plaintiffs asserted two claims. See id. First, plaintiffs alleged that the Lobbyist Ban violated the First Amendment Petition Clause by denying them the right to serve on ITACs because of their federal registration. Id. ¶ 44. Second, plaintiffs alleged that the Ban violated the Fifth Amendment Equal Protection Clause by “draw[ing] an unconstitutional distinction between those who exercise their right to petition the Government and those who do not.” Id. ¶ 53.

B. The District Court’s Dismissal of the Complaint

Following the filing of the complaint, the government moved to dismiss for lack of subject-matter jurisdiction – specifically, for lack of standing – and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Autor I, 892 F.Supp.2d at 267–68. The district court denied the first motion but granted the second. Id. On the standing issue, the government argued that plaintiffs did not suffer an injury in fact by being barred from ITAC service. Id. at 271. However, the Court explained that plaintiffs suffered a cognizable injury because they claimed that denial of ITAC service deprived them of professional experience and personal satisfaction. Id. at 273.

Although the Court found that plaintiffs had standing, it dismissed plaintiffs’ two claims for failure to state a claim. As to their First Amendment claim, plaintiffs argued that the unconstitutional conditions doctrine, articulated in Perry v. Sindermann, 408 U.S. 593 (1972), was the proper framework for assessing their claim. Autor I, 892 F.Supp.2d at 274. However, the district court concluded that it was bound by Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which held that the First Amendment does not “grant members of the public any particular right to be heard by public bodies making policy decisions.” Autor I, 892 F.Supp.2d at 274 (citing Knight, 465 U.S. at 283). Moreover, the Court found that even if Perry was the correct standard, plaintiffs had not stated an unconstitutional-conditions claim. Id. Such a claim derives from Perry’s holding that “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, . . . [i]t may not deny a benefit to a person on a basis that infringes his constitutional protected interests – especially, his interest in freedom of speech.” Perry, 408 U.S. at 597. The Court found that plaintiffs had failed to show (1) that ITAC membership was a valuable government benefit and (2) that exclusion from ITACs infringed upon their right to petition. Autor I, 892 F.Supp.2d at 275–82.

As to plaintiffs’ equal protection claim, the Court found that the only distinction the Ban made was between “those whose lobbying activities trigger the statutory registration requirement and those whose activities do not, ” and that plaintiffs “did not argue that those triggering circumstances – as opposed to the lobbying activities themselves – are constitutionally protected.” Id. at 282. Finding that the Ban created no suspect classification, the Court employed rational basis review. Id. at 282–84. Under this deferential standard, it found that the Ban was rationally related to the government’s interest in reducing the influence of special interests. Id. at 284. Accordingly, the Court dismissed the complaint for failure to state a claim under Rule 12(b)(6).

C. The D.C. Circuit’s Reversal and Remand Order

On appeal, the D.C. Circuit reversed. First, the Court of Appeals found that plaintiffs pled a viable First Amendment claim because “they allege[d] that the government [conditioned] their eligibility for the valuable benefit of ITAC membership on their willingness to limit their First Amendment right to petition government.” Autor II, 740 F.3d at 183. In so holding, the D.C. Circuit found that Knight did not control. Id. Distinguishing Knight, “in which the alleged burden on the teachers’ First Amendment rights resulted from the union’s exclusion of them from the ‘meet and confer’ committees, ” the D.C. Circuit reasoned that in this case, “any burden on [plaintiffs’] constitutional rights results directly from the government’s decision to bar them from ITAC membership.” Id. (emphasis in original). Acknowledging the novelty of the instant case, the D.C. Circuit noted that “although the Supreme Court [in Knight] recognized that the government may choose to hear from some groups at the expense of others, it never addressed the question we face here – whether, in so doing, the government may also limit the constitutional rights of those to whom it chooses to listen.” Id.

The D.C. Circuit also disagreed with the district court’s finding that the Lobbyist Ban “neither deprived [plaintiffs] of a valuable benefit nor burdened their right to petition.” Id. at 181–82. Though the benefits of ITAC membership did not necessarily have quantifiable economic worth, the D.C. Circuit recognized that a benefit need only have value to those who seek it. Id. at 182. The Court of Appeals explained that because the ITAC membership did have value to plaintiffs, withholding this benefit could pressure plaintiffs into forgoing the exercise of their constitutional rights. Id. As a result, it concluded that plaintiffs stated a Perry unconstitutional-conditions claim. Id. at 183.

However, the D.C. Circuit went further, holding that Perry was not the end of the analysis. The Court of Appeals found that the inquiry defined in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), which analyzed government limits on the First Amendment rights of government employees, must also be applied. Autor II, 740 F.3d at 183– 84. As the D.C. Circuit explained, “[t]he Supreme Court has long sanctioned government burdens on public employees’ exercise of constitutional rights ‘that would be plainly unconstitutional if applied to the public at large.’” Id. (quoting United States v. National Treasury Employees Union, 513 U.S. 454, 465 (1995)). Pickering developed a test for this circumstance which balances “the interests of the [government employee] in ...

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