Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dunlap v. Presidential Advisory Commission On Election Integrity

United States District Court, District of Columbia

June 27, 2018

MATTHEW DUNLAP, Plaintiff,
v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         On 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.[1] 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.

         Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, including the Court's [32] Order and [33] Memorandum Opinion of December 22, 2017, which the Court expressly incorporates herein, the Court DENIES Plaintiff's [35] Application for a Temporary Restraining Order (“TRO Application”), DENIES Defendants' [39] 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 [48] Motion for Leave to Serve a Preservation Subpoena (“Subpoena Motion”).

         Defendants 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”).

         Plaintiff is entitled under Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), to the preliminary relief guaranteed by the Court's [32] Order and [33] 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.

         I. BACKGROUND

         The Court extensively discussed the statutory and factual background of the Commission in its decision as to Plaintiff's [7] 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.

         President 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.

         Unofficial 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.

         On 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.

         Statement, 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), https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html). 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), http://www.breitbart.com/big-government/2018/01/03/exclusive-kris-kobach-voter-fraud-commission-being-handed-off-to-dhs-will-no-longer-be-stonewalled-by-dems/) (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).

         Nowhere 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.

         In 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 Commission members.

         Defendants 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.[3] 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 members.”).

         On the 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.

         II. LEGAL STANDARD

         A. Motion to Reconsider

         Under 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).

         “In 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)).

         However, 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, ¶ 13.

         B. Application for Temporary Restraining Order

         Like a 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 case law).

         Preliminary 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 [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.” 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.

         The 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.

         C. Motion for Leave to Serve Subpoena

         Federal 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 . . . .”).

         “Federal 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 45.[4] 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 26(b)(1).

Id. 26(b)(2)(C) (emphasis added).

         D. Request for Stay Pending Appeal

         A party that moves for a stay pending appeal bears the burden of showing that the balance of four factors weighs in favor of the stay:

(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 stay.

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”).[5] 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 disclosure.”).

         III. DISCUSSION

         A. Motion to Reconsider This Court's December 22, 2017, Order

         1. Rule 54(b) Standard

         The 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 [1] 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.

         Defendants 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”).

         In the 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).

         Defendants 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 the merits.

         In any 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.

         2. Justice Does Not Require Reconsideration

         Because 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.

         The 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.”).

         Defendants 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.

         The 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 impaired.” Id.

         Courts 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.

         Whereas 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.[6]

         Only 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).[7] Defendants-purportedly not representing Mr. Kobach any longer[8]-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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.