United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
December 22, 2017, the Court held that Plaintiff Matthew
Dunlap was entitled to certain documents to vindicate his
right, as an appointed commissioner, to fully participate in
the proceedings of the Defendant Presidential Advisory
Commission on Election Integrity (the
“Commission”). See Dunlap v. Presidential
Advisory Comm'n on Election Integrity, 286 F.Supp.3d
96 (D.D.C. 2017). The Commission never complied with the
Court's ORDER. Nor did any co-Defendant officials or
entities indicate an intention to do so. An Executive
Order issued on January 3, 2018, terminated the Commission
and triggered a series of motions seeking to clarify the path
forward in this case.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, including the
Court's  Order and  Memorandum Opinion of
December 22, 2017, which the Court expressly incorporates
herein, the Court DENIES Plaintiff's
 Application for a Temporary Restraining Order
(“TRO Application”), DENIES
Defendants'  Motion to Reconsider This Court's
December 22, 2017, Order (“Motion to
Reconsider”), and, in an exercise of the Court's
discretion, DENIES Plaintiff's 
Motion for Leave to Serve a Preservation Subpoena
have indicated that if the Court were to deny their Motion to
Reconsider, they would consider seeking appellate review
rather than producing the documents at issue. MTR Mem. at
12-13. They accordingly requested a stay of any adverse
decision to give them time to evaluate. As the Court shall
discuss in this Opinion, Defendants are not entitled to a
stay either during their determination of whether to appeal
or during any appeal, subject to any finding that the Court
lacks jurisdiction over aspects of the case under
consideration by the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit” or
“Court of Appeals”).
is entitled under Cummock v. Gore, 180 F.3d 282
(D.C. Cir. 1999), to the preliminary relief guaranteed by the
Court's  Order and  Memorandum Opinion of
December 22, 2017, as further clarified in this Memorandum
Opinion, but not to anything more at this time. Defendants
must produce the relevant documents by no later than
JULY 18, 2018.
Court extensively discussed the statutory and factual
background of the Commission in its decision as to
Plaintiff's  Motion for a Preliminary Injunction.
See Dunlap, 286 F.Supp.3d at 99-104. The Court shall
only briefly recapitulate here the Commission's short
life and Plaintiff's role therein, with emphasis on the
factual and procedural developments that have occurred since
the Court's decision.
Donald J. Trump launched the Commission on May 11, 2017, with
a mandate to “study the registration and voting
processes used in Federal elections.” Executive Order
No. 13, 799 § 3, 82 Fed. Reg. 22, 389, 22, 389 (May 11,
2017) (“May 11, 2017 Exec. Order”). Plaintiff
Matthew Dunlap, Secretary of State of the State of Maine, was
among the appointed commissioners. Over the following summer
and early fall, the Commission held several meetings
regarding election issues and collected some state voter
data. Yet, despite his eagerness to contribute to the
Commission's work, Plaintiff had reason to believe that
Defendants and perhaps other commissioners were inhibiting
his ability to fully do so. Plaintiff tried to obtain certain
documents from the Commission to vindicate his rights, and
when he was unsuccessful, he brought this lawsuit against the
Commission, Vice President Michael R. Pence in his capacity
as Chair of the Commission, Kris W. Kobach in his capacity as
Vice Chair, the Executive Office of the President
(“EOP”), and the Office of the Vice President
(“OVP”), among others.
information shortly thereafter suggested that the Commission
might hold a meeting without inviting Plaintiff's
involvement in the planning. This precipitated his efforts to
obtain preliminary relief, which this Court granted in
significant part on December 22, 2017. The Court found that
Plaintiff was likely to succeed in obtaining certain relief
pursuant to the Court's mandamus jurisdiction, 28 U.S.C.
§ 1361, and met the remaining elements for a preliminary
injunction as to that relief. Defendants were required to
provide Plaintiff with certain past and future documents to
facilitate his meaningful participation as a commissioner.
See, e.g., Dunlap, 286 F.Supp.3d at 107-08.
They never did so.
January 3, 2018, Defendants abruptly notified the Court that
President Trump had signed an Executive Order that terminated
the Commission. Notice of Executive Order, ECF No. 34. A
flurry of public statements comprised the Commission's
early epitaph. That day the White House Press Secretary
offered one version of the reasons for its demise:
Despite substantial evidence of voter fraud, many states have
refused to provide the Presidential Advisory Commission on
Election Integrity with basic information relevant to its
inquiry. Rather than engage in endless legal battles at
taxpayer expense, today President Donald J. Trump signed an
executive order to dissolve the Commission, and he has asked
the Department of Homeland Security to review its initial
findings and determine next courses of action.
The White House, Statement by the Press Secretary on the
Presidential Advisory Commission on Election Integrity (Jan.
3, 2018), ECF No. 46-1. Mr. Kobach, who had overseen much of
the Commission's operations as its Vice Chair,
highlighted the realpolitik:
“It got to the point where the staff of the commission
was spending more time responding to litigation than doing an
investigation, ” Mr. Kobach said. “Think of it as
an option play; a decision was made in the middle of the day
to pass the ball. The Department of Homeland Security is
going to be able to move faster and more efficiently than a
presidential advisory commission.”
TRO Mem. at 5 (quoting Michael Tackett and Michael Wines,
Trump Disbands Commission on Voter Fraud, N.Y. Times
(Jan. 3, 3018),
At least from his perspective, Mr. Kobach evidently would
serve as “an informal adviser to homeland security,
” id. (quoting Tackett and Wines,
supra) (internal quotation marks omitted), who would
be “working closely with the White House and DHS to
ensure the investigations continue, ” id. at
5-6 (quoting John Binder, Exclusive-Kris Kobach: Voter
Fraud Commission ‘Being Handed off' to DHS, Will
No. Longer Be ‘Stonewalled' by Dems, Breitbart
(Jan. 3, 2018),
(internal quotation marks omitted). Confirming that the issue
would remain on the agenda, President Trump tweeted,
“Push hard for Voter Identification!” on January
4, 2018. MTR Opp'n at 10 n.18 (quoting Donald J. Trump
(@realDonaldTrump), Twitter (Jan. 4, 2018)) (internal
quotation marks omitted).
did Defendants indicate that they would comply with the
Court's December 22, 2017, Order compelling them to
provide Plaintiff with certain documents. Defendants'
correspondence with Plaintiff indicated that they would
instead seek reconsideration of the Court's Order in
light of the Commission's termination. TRO Mem. Ex. 2,
ECF No. 35-3, at 1-2. Fearing that his final opportunity to
participate in the Commission was slipping away, Plaintiff
applied for a temporary restraining order (“TRO”)
seeking extensive relief, including a variety of orders
regarding post-dissolution management of Commission documents
and an order compelling Defendants' compliance with the
Court's preliminary injunction. See Pl.'s
Appl. for a TRO, ECF No. 35, at 1-2.
parallel, Defendants sought reconsideration of the
Court's preliminary injunction, citing the “changed
circumstances” of the Commission's termination
without “issu[ing] a report or mak[ing] any
recommendations before its dissolution.” MTR Mem. at 1.
In an effort to handle the motion practice most efficiently,
the Court held a teleconference with the parties and decided
to hold the TRO Application in abeyance while the Court
resolved the Motion to Reconsider. Min. Order of Jan. 10,
2018. Plaintiff did, however, request the Court's prompt
attention to one issue that he had not expressly raised in
the TRO Application, namely whether former Commission
members-some of whom were never Defendants in this case-could
be restrained from unofficially disseminating official
Commission records to the Department of Homeland Security or
to other third parties. Id. The parties proceeded to
brief the Motion to Reconsider, as well as Plaintiff's
ancillary request for some form of restraint on former
argued in their briefing that Mr. Kobach, as a Defendant sued
only in his official capacity as Vice Chair of the
Commission, is no longer a party to this case after the
Commission's dissolution. See, e.g., TRO Ancillary
Issue Opp'n at 1. Plaintiff accordingly filed a motion
for leave to serve a subpoena on Mr. Kobach to ensure that he
would preserve documents, in light of Defendants'
position that they could not compel him to do so. Subpoena
Mem. at 1; see also TRO Ancillary Issue Opp'n at
1 (“The Commission no longer exists and no longer has
the power to compel the actions of its former Commission
basis of the briefing, the Court is now prepared to resolve
Defendants' Motion to Reconsider the preliminary
injunction, together with Plaintiff's TRO Application,
the request ancillary to Plaintiff's TRO Application, and
Plaintiff's Subpoena Motion directed to Mr. Kobach.
Motion to Reconsider
Federal Rule of Civil Procedure Rule 54(b), “any order
. . . that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” Fed.R.Civ.P. 54(b). As it has before,
the Court again shares the view in this district that a Rule
54(b) motion may be granted “as justice
requires.” E.g., Coulibaly v.
Tillerson, 278 F.Supp.3d 294, 301 (D.D.C. 2017)
(Contreras, J.); United States v. Dynamic Visions,
Inc., 321 F.R.D. 14, 17 (D.D.C. 2017) (Kollar-Kotelly,
J.); Singh v. George Washington Univ., 383 F.Supp.2d
99, 101 (D.D.C. 2005) (Lamberth, J.) (quoting Cobell v.
Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (Lamberth,
J.)). The proponent carries the burden of proving “that
some harm, legal or at least tangible, would flow from a
denial of reconsideration, ” and accordingly persuading
the Court that in order to vindicate justice it must
reconsider its decision. Dynamic Visions, Inc., 321
F.R.D. at 17 (quoting Cobell, 355 F.Supp.2d at 540)
(internal quotation marks omitted).
general, a court will grant a motion for reconsideration of
an interlocutory order only when the movant demonstrates:
‘(1) an intervening change in the law; (2) the
discovery of new evidence not previously available; or (3) a
clear error in the first order.” Zeigler v.
Potter, 555 F.Supp.2d 126, 129 (D.D.C. 2008) (quoting
Keystone Tobacco Co., Inc. v. U.S. Tobacco Co., 217
F.R.D. 235, 237 (D.D.C. 2003)), aff'd No.
09-5349, 2010 WL 1632965 (D.C. Cir. Apr. 1, 2010).
“Justice [also] may require reconsideration . . .
‘where a controlling or significant change in the . . .
facts has occurred since the submission of the issue to the
court.'” McLaughlin v. Holder, 864
F.Supp.2d 134, 141 (D.D.C. 2012) (quoting Ficken v.
Golden, 696 F.Supp.2d 21, 35 (D.D.C. 2010)).
as the parties were warned, “motions for
reconsideration . . . cannot be used as an opportunity to
reargue facts and theories upon which a court has already
ruled, nor as a vehicle for presenting theories or arguments
that could have been advanced earlier.” Estate of
Gaither ex rel. Gaither v. District of Columbia, 771
F.Supp.2d 5, 10 & n.4 (D.D.C. 2011)) (quoting SEC v.
Bilzerian, 729 F.Supp.2d 9, 14 (D.D.C. 2010)) (internal
quotation marks omitted); Order Establishing Procedures for
Cases Assigned to Judge Colleen Kollar-Kotelly, ECF No. 6,
Application for Temporary Restraining Order
preliminary injunction, a temporary restraining order is an
extraordinary form of relief. An application for a TRO is
analyzed using factors applicable to preliminary injunctive
relief. See, e.g., Gordon v. Holder, 632
F.3d 722, 723-24 (D.C. Cir. 2011) (applying preliminary
injunction standard to district court decision denying motion
for TRO and preliminary injunction); Sibley v.
Obama, 810 F.Supp.2d 309, 310 (D.D.C. 2011)
(articulating TRO elements based on preliminary injunction
injunctive relief 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) (per curiam) (“[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.” (internal quotation
marks omitted)). A plaintiff seeking preliminary injunctive
relief “must establish  that he is likely to succeed
on the merits,  that he is likely to suffer irreparable
harm in the absence of preliminary relief,  that the
balance of equities tips in his favor, and  that an
injunction is in the public interest.” A a m e r v.
Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting
Sherley, 644 F.3d at 392 (quoting Winter,
555 U.S. at 20) (alteration in original; internal quotation
marks omitted)). When seeking such relief, “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)) (internal quotation marks omitted).
“The four factors have typically been evaluated on a
‘sliding scale.'” Davis, 571 F.3d at
1291. Under this sliding-scale framework, “[i]f the
movant makes an unusually strong showing on one of the
factors, then it does not necessarily have to make as strong
a showing on another factor.” Id. at 1291-92.
Court notes that it is not clear whether this Circuit's
sliding-scale approach to assessing the four preliminary
injunction factors survives the Supreme Court's decision
in Winter. See Save Jobs USA v. U.S. Dep't
of Homeland Sec., 105 F.Supp.3d 108, 112 (D.D.C. 2015).
Several judges on the D.C. Circuit have “read
Winter at least to suggest if not to hold
‘that a likelihood of success is an independent,
free-standing requirement for a preliminary
injunction.'” Sherley, 644 F.3d at 393
(quoting Davis, 571 F.3d at 1296 (Kavanaugh, J.,
concurring)). However, the D.C. Circuit has yet to hold
definitively that Winter has displaced the
sliding-scale analysis. See id.; see also Save
Jobs USA, 105 F.Supp.3d at 112. In light of this
ambiguity, the Court shall consider each of the preliminary
injunction factors and shall only evaluate the proper weight
to accord the likelihood of success if the Court finds that
its relative weight would affect the outcome.
Motion for Leave to Serve Subpoena
Rule of Civil Procedure 26(d) explains that “[a] party
may not seek discovery from any source before the parties
have conferred as required by Rule 26(f), ” subject to
certain exceptions, including a “court order”
authorizing such early discovery. Fed.R.Civ.P. 26(d)(1). The
Court of Appeals has held that Rule 26 “vests the trial
judge with broad discretion to tailor discovery narrowly and
to dictate the sequence of discovery.” Watts v.
SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting
Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
Federal Rule of Civil Procedure 34 sets forth procedures for
requesting that a party produce documents during Rule 26
discovery, and expressly directs elsewhere for analogous
requests to nonparties. See Fed. R. Civ. P. 34(a);
id. 34(c) (“As provided in Rule 45, a nonparty
may be compelled to produce documents . . . .”).
Rule of Civil Procedure 45 authorizes court-issued subpoenas
to obtain discovery from third parties . . . .”
Watts, 482 F.3d at 507. Among the requirements of
Rule 45, “[a] party or attorney responsible for issuing
and serving a subpoena must take reasonable steps to avoid
imposing undue burden or expense on a person subject to the
subpoena.” Fed.R.Civ.P. 45(d)(1). “The Rule 45
‘undue burden' standard requires district courts
supervising discovery to be generally sensitive to the costs
imposed on third parties.” Watts, 482 F.3d at
509 (citing, e.g., Cusumano v. Microsoft Corp., 162
F.3d 708, 717 (1st Cir. 1998) (“[C]oncern for the
unwanted burden thrust upon non-parties [by a subpoena] is a
factor entitled to special weight in evaluating the balance
of competing needs.”)). “In addition, Federal
Rule of Civil Procedure 26(b)(1)-(2) requires district courts
. . . to consider a number of factors potentially relevant to
the question of undue burden” under Rule
Id. The rule setting forth the general scope of
discovery covers some of these factors:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Further findings can trigger
non-discretionary restrictions on discovery:
On motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that: (i) the
discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more
convenient, less burdensome, or less expensive; (ii) the
party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or (iii) the
proposed discovery is outside the scope permitted by Rule
Id. 26(b)(2)(C) (emphasis added).
Request for Stay Pending Appeal
that moves for a stay pending appeal bears the burden of
showing that the balance of four factors weighs in favor of
(1) the likelihood that the party seeking the stay will
prevail on the merits of the appeal; (2) the likelihood that
the moving party will be irreparably harmed absent a stay;
(3) the prospect that others will be harmed if the court
grants the stay; and (4) the public interest in granting the
Cuomo v. U.S. Nuclear Regulatory Comm'n, 772
F.2d 972, 974 (D.C. Cir. 1985) (per curiam); see
also Id. at 978 (“On a motion for stay, it is
the movant's obligation to justify the court's
exercise of such an extraordinary remedy.”); Nat.
Res. Def. Council v. EPA, 489 F.3d 1250, 1263-64 (D.C.
Cir. 2007) (Randolph, J., concurring) (citing Cuomo
as demonstrative of the Court of Appeals'
“long-standing principles governing
stays”). A party does not necessarily have to make
a strong showing with respect to the first factor (likelihood
of success on the merits) if a strong showing is made as to
the second factor (likelihood of irreparable harm).
Cuomo, 772 F.2d at 974 (“Probability of
success is inversely proportional to the degree of
irreparable injury evidenced. A stay may be granted with
either a high probability of success and some injury, or
vice versa.”). Ultimately, a court must weigh
the factors depending on the circumstances of the particular
case. See, e.g., Ctr. for Int'l Envtl. Law
v. Office of the U.S. Trade Representative, 240
F.Supp.2d 21, 23 (D.D.C. 2003) (“The remaining two
factors-potential harm to plaintiffs and other individuals or
to the public interest if a stay is granted-argue against a
stay but ultimately do not outweigh defendants' showing
of a substantial case on the merits and irreparable harm from
Motion to Reconsider This Court's December 22, 2017,
Rule 54(b) Standard
preliminary injunction granted in this case did not resolve
all of Plaintiff's claims, even preliminarily. The Court
has yet to resolve on the merits the claims presented in
Plaintiff's motion for preliminary injunction. And the
Court has not made any decision as to at least one further
claim in Plaintiff's  Complaint, namely that
Defendants violated Section 9(c) of the Federal Advisory
Committee Act (“FAC A ”) by acting out of turn
with their filing of the Commission charter. See,
e.g., Dunlap, 286 F.Supp.3d at 109 n.5
(declining to decide this claim not pursued in preliminary
injunction motion). Accordingly, it is appropriate to
evaluate the Motion to Reconsider under the Rule 54(b)
standard applicable to an order that “adjudicates fewer
than all the claims or the rights and liabilities of fewer
than all the parties.” Fed.R.Civ.P. 54(b). As discussed
above, that standard is whether “justice
requires” reconsideration. Dynamic Visions,
Inc., 321 F.R.D. at 17.
do not discuss the “as justice requires” standard
but instead refer to several other standards, both for Rule
54(b) and other rules on which a decision purportedly could
be based. As to Rule 54(b), Defendants argue that the
relevant standard is whether “a change of circumstances
between entry of the injunction and the filing of the
motion” to reconsider has occurred “that would
render the continuance of the injunction in its original form
in equitable [sic].” MTR Mem. at 4 (quoting Fox
Television Stations, Inc. v. FilmOn X LLC, 968 F.Supp.2d
134, 140 (D.D.C. 2013)) (internal quotation marks omitted)
(mistake not in original). However, Defendants do not cite
any cases in this jurisdiction that apply this standard to
Rule 54(b) decisions. On the contrary, Defendants' main
case expressly recognizes that the “justice
requires” standard applies in the Rule 54(b) context.
See Fox Television Stations, Inc., 968 F.Supp.2d at
140 n.3 (“find[ing] that justice does not require
reconsideration” upon “assuming arguendo
that the Rule 54(b) standard applies”).
alternative to resolving this motion on Rule 54(b) grounds,
Defendants urge the Court to apply the Rule 59(e) standard.
See MTR Mem. at 3-5. Although Plaintiff does not
expressly respond to that alternative argument, the Court
finds that it is unnecessary to apply Rule 59(e), which
Defendants aptly note “is generally used for
reconsideration of final judgments, ” id. at
4. See also Fed. R. Civ. P. 59(e) (setting deadline
for “motion to alter or amend a judgment”
following “entry of the judgment”); id.
54(a) (defining “judgment” as “a decree and
any order from which an appeal lies”). “Motions
under Rule 59(e) are ‘disfavored' and the moving
party bears the burden of establishing ‘extraordinary
circumstances' warranting relief from a final
judgment.” United States v. Burwell, 253
F.Supp.3d 283, 285 (D.D.C. 2017) (Kollar-Kotelly, J.)
(quoting Niedermeier v. Office of Baucus, 153
F.Supp.2d 23, 28 (D.D.C. 2001) (Hogan, C.J.)). Because the
Court has not entered final judgment, and because the Court
shall in any event find that the Rule 54(b) standard is not
satisfied, the Court need not separately evaluate whether
Defendants are entitled to relief based on what appears to be
a higher standard associated with Rule 59(e).
also make some reference to case law applying a Rule 60(b)
standard. See, e.g., MTR Mem. at 3-4 (citing
Petties ex rel. Martin v. District of Columbia, 662
F.3d 564, 571 (D.C. Cir. 2011) (“[C]hanged
circumstances ha[ve] rendered continued enforcement of the
preliminary injunction . . . contrary to the public
interest[.]”)). “Rule 60(b)(5) provides that a
district court may vacate an order or judgment if
‘applying it prospectively is no longer equitable,
'” among other possible grounds. Petties,
662 F.3d at 568 (quoting Fed.R.Civ.P. 60(b)(5)). But,
similarly to Rule 59(e), Rule 60(b) pertains to “a
final judgment, order, or proceeding.” Fed.R.Civ.P.
60(b). There is no argument here that the Court's
preliminary injunction represents a final judgment. Even if
there were some argument, the Court clearly has not concluded
its management of this case by resolving all of the claims on
event, Defendants have primarily urged the Rule 54(b)
standard. See MTR Mem. at 4 (arguing that the
“more permissive” Rule 54(b) standard, rather
than Rule 59(e) standard, applies in these circumstances).
Plaintiff does not object. The Court shall now apply the Rule
54(b) standard to Defendants' motion.
Justice Does Not Require Reconsideration
Defendants fail to articulate, and consequently, address, the
threshold Rule 54(b) consideration of whether “justice
requires” reconsideration, they forge ahead with a
fresh analysis of whether the Court should grant a
preliminary injunction under the standard four-factor test
that this Court previously applied. See Dunlap, 286
F.Supp.3d at 104 (citing Aamer, 742 F.3d at 1038).
But they are not entitled to that second bite at the apple.
For the reasons that follow, the Court finds that justice
does not require reconsideration of its decision to grant
partial preliminary relief to Plaintiff.
dissolution of the Commission on January 3, 2018, is a
relevant factual development, in the basic sense that a
commission existed when the Court issued the preliminary
injunction and now does not exist. But that change is not
“controlling or significant” for purposes of
compelling reconsideration of whether Plaintiff satisfies the
standards for preliminary relief. See McLaughlin,
864 F.Supp.2d at 141 (contemplating reconsideration in the
event of “a controlling or significant change” of
fact (internal quotation marks omitted)). The
Commission's termination does not affect the premise of
the Court's December 22, 2017, opinion: “Plaintiff
ha[d] a right, as a commissioner, to ‘fully
participate' in the proceedings of the Commission,
” and his ability to do so was stunted by
Defendants' failure to provide him with documents during
the life of the Commission. Dunlap, 286 F.Supp.3d at
106 (“[Plaintiff] has a right to access documents that
the Commission is considering relying on in the course of
developing its final recommendations.”); see also
Cummock, 180 F.3d at 291 (“[FACA] must be read to
confer on a committee member the right to fully participate
in the work of the committee to which he or she is
appointed.”). The Court's December 22, 2017,
decision affords Plaintiff access to documents described
therein that were generated before the Court's Order and
those that were generated afterwards through the point of the
Commission's termination. See Dunlap, 286
F.Supp.3d at 108 (holding that “[t]he Commission has a
clear duty to provide Plaintiff with these [exemplary
categories of past] documents and any similar documents that
exist now or in the future.”).
argue that they should not be required to turn over documents
to Plaintiff because there is no longer a Commission in which
to participate using those documents. MTR Mem. at 2 (quoting
Dunlap, 286 F.Supp.3d at 107 (“Plaintiff is
entitled to substantive information so that he can contribute
along the way in shaping the ultimate recommendations of the
Commission . . . .”)). Neither was there still a
commission in which to participate in Cummock. In
its December 22, 2017, decision, the Court “[found]
that a preliminary injunction is necessary in this case to
prevent the Commission from reaching the level of dysfunction
that precipitated Cummock, ” namely by
frustrating Ms. Cummock's ability to fully participate in
the relevant commission before that commission was
terminated. Dunlap, 286 F.Supp.3d at 107.
Unfortunately, by January 3, 2018, despite the Court's
best efforts the same dysfunction had materialized in this
case: a commissioner whose full participation had been
thwarted during the life of his commission service was now
left to vindicate his rights after the fact.
principle that “FACA rights are enforceable even after
an advisory committee has been disbanded” is settled
law in this Circuit. Cummock, 180 F.3d at 292
(citing Byrd v. EPA, 174 F.3d 239, 243-44 (D.C. Cir.
1999)). In Cummock, the Court of Appeals again
recognized this principle in finding that a former
commissioner of a then-defunct commission was nevertheless
“entitled to review” any “information that
was made available to [that] Commission during the course of
its deliberative process and without which her ability to
fully and adequately participate in that process was
in this Circuit continue to observe that Cummock
preserves certain rights after dissolution of a commission
subject to FACA. “A claim for document disclosure
survives the termination of a FACA advisory committee, at
least until all of the relevant materials have been
disclosed.” Ctr. for Biological Diversity v.
Tidwell, 239 F.Supp.3d 213, 227 (D.D.C. 2017)
(Kollar-Kotelly, J.) (citing, e.g., Cummock, 180
F.3d at 292); see also, e.g., Nat. Res. Def.
Council v. Abraham, 223 F.Supp.2d 162, 184 (D.D.C. 2002)
(Collyer, J.) (“In Cummock v. Gore, the D.C.
Circuit held that a request for documents pursuant to FACA is
not rendered moot by the termination of the advisory
committee in question.”), set aside in part on
other grounds sub nom., Nat. Res. Def. Council v.
Dep't of Energy, 353 F.3d 30 (D.C. Cir. 2004)
(mem.). Although such cases generally concern the
post-dissolution availability of documents to the public
under FA C A § 10(b), a similar policy rationale is
applicable to this former commissioner's right to
documents under Cummock:
A finding that disclosure of the documents was no longer
available because the committee[ ] ceased to exist would
allow [Defendants] to frustrate the purposes of FACA by
convening committees and disbanding them before materials
could be requested, or a lawsuit concluded. The documents
that [P]laintiff[ ] request[s] are still in existence and
have not been produced to [him].
Abraham, 223 F.Supp.2d at 184.
the former commissioner in Cummock needed documents
to amend her response to that commission's final report,
Defendants distinguish this case as not involving a final
report to which Plaintiff has responded or could now do so.
See MTR Mem. at 6. In support of this argument,
Defendants submit a declaration from Charles C. Herndon, the
Director of White House Information Technology, indicating
that “[t]he Commission did not create any preliminary
findings.” 2d Decl. of Charles C. Herndon, ECF No.
39-2, ¶ 5. It is undisputed that there is no published
final report in this case, and the Court shall accept for a
moment, arguendo, that there are no preliminary
findings either. Even so, this distinction is not persuasive.
Cummock itself articulated the commissioner's
separate rights 1) to review any documents to which she was
entitled, as discussed above, and 2) “assuming
that Cummock is entitled to review certain Commission
documents to which she has heretofore been denied access,
[to] be given an opportunity to amend and publish a dissent
incorporating her fully enlightened views.”
Cummock, 180 F.3d at 293. Under Defendants'
reasoning, a former commissioner's right to documents
under Cummock turns on the arbitrary fact of whether
the commission published a report before its termination. But
the Court of Appeals' decision clearly establishes
otherwise. Full participation in the Commission would have
involved the opportunity to contribute to a published report
if there was one, but even where there is not, still
Plaintiff's right must be vindicated to any remaining
extent to which it was abridged.
upon Plaintiff's review of the documents generated by the
Commission will the extent to which his participation was
thwarted become clear. Why should the Plaintiff, a duly
appointed member of that body, be expected to rely on the
assertion of a records custodian that there are no
“preliminary findings”? There is no claim that
Mr. Herndon had a substantive role in the work of the
Commission. See TRO Ancillary Issue Mem. at 7 n.10
(noting it is not “clear what basis Mr. Herndon had to
make this declaration, including what is meant by
‘finding' in the declaration and whether Mr.
Herndon, in his role as Director of White House Information
Technology, was privy to all communications between DHS (or
other federal agencies and officials) and the Chair, Vice
Chair, Executive Director, and/or other Commission
officials”). Among those who did have such a
substantive role, the Vice Chair, Mr. Kobach, was interviewed
in preparation for a Breitbart article that
ultimately stated that “the voter fraud commission has
revealed” certain specific findings. Binder,
supra; TRO Ancillary Issue Mem. at 7-8 & nn.
8-11 (inaccurately asserting that article
“quoted” Mr. Kobach as saying
this). Defendants-purportedly not representing
Mr. Kobach any longer-suggest that this assertion is
attributable, at least in part, not to “findings by the
Commission itself” but rather to “reference
material that was presented to the Commission at its
meetings, ” TRO Ancillary Issue Opp'n at 10 n.1.
But this suggestion of findings cannot be skirted so easily.
On behalf of the President, whose Executive Office was and
indisputably remains a Defendant in this matter, the press
secretary has stated that the President “asked the
Department of Homeland Security to review [the
Commission's] initial findings.” Statement, The
White House, supra. President Trump likewise seemed
to suggest that the issues entrusted to the Commission were
still live topics, rather than dead-ends proven by an absence
of findings. See MTR Opp'n at 10 n.18 (quoting
Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2018))
(“Push hard for Voter Identification!” (internal
quotation marks omitted)). Defendants' effort to walk
back public statements consists of the records
custodian's assertion as well as a footnote addressing
the Breitbart article referenced above:
[T]he statement by Mr. Kobach appears to reference material
that was presented to the Commission at its meetings, not
findings by the Commission itself. Material presented to the
Commission at a meeting does not constitute a
“finding” by the Commission any more than
material presented to a Court ...