Matthew Dunlap v. Presidential Advisory Commiss ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2019 Decided December 20, 2019
No. 18-5266
MATTHEW DUNLAP,
APPELLEE
v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY, ET AL.,
APPELLANTS
Consolidated with 19-5051
Appeals from the United States District Court
for the District of Columbia
(No. 1:17-cv-02361)
Gerard Sinzdak, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs was
Mark B. Stern, Attorney.
Harry Sandick argued the cause for plaintiff-appellee. With
him on the brief were Daniel A. Friedman, Melanie Sloan, and
John E. Bies.
Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed PER CURIAM.
PER CURIAM: Maine Secretary of State Matthew Dunlap
was a member of the short-lived Presidential Advisory
Commission on Election Integrity. Suspecting that Commission
work was taking place behind his back, Secretary Dunlap sued
for access to Commission documents. Most of the documents
he sought have either now been released or are the subject of
ongoing litigation in the district court. The sole question on this
appeal is whether the district court, relying on its mandamus
jurisdiction, properly required the government to produce emails
between the Vice President’s staff and individuals who were
then commissioners discussing potential appointees to the
Commission. Because Secretary Dunlap has not met the
demanding standard for mandamus, we reverse.
I
In May 2017, the President established the Presidential
Advisory Commission on Election Integrity to “study the
registration and voting processes used in Federal elections.”
Exec. Order No. 13,799 § 3, 82 Fed. Reg. 22,389, 22,389 (May
11, 2017). The President named Vice President Pence as Chair
and Secretary Dunlap as a commissioner. In November 2017,
Dunlap sued the Commission and various federal officers,
alleging that he was being denied access to documents to which
he had a right of access under § 10(b) of the Federal Advisory
Committee Act (FACA), 5 U.S.C. app. 2 § 10(b), as interpreted
in Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999). In
December 2017, the district court agreed and issued a
preliminary injunction requiring the Commission to provide
Dunlap with “substantive information so that he can contribute
along the way in shaping the ultimate recommendations of the
Commission.” Dunlap v. Presidential Advisory Comm’n on
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Election Integrity (Dunlap I), 286 F. Supp. 3d 96, 107 (D.D.C.
2017).
Twelve days later, the President dissolved the Commission.
Exec. Order No. 13,820, 83 Fed. Reg. 969 (Jan. 3, 2018). The
Commission then sought reconsideration of the preliminary
injunction, which the district court denied in June 2018. Dunlap
v. Presidential Advisory Comm’n on Election Integrity (Dunlap
II), 319 F. Supp. 3d 70, 77-78 (D.D.C. 2018). Thereafter, the
Commission released some documents, while continuing to
dispute its obligation to release others. This appeal involves
only a small portion of the remaining documents: emails
between the Vice President’s staff and individuals who were
then commissioners discussing potential appointees to the
Commission. In January 2019, the district court ordered the
government to release those emails, Dunlap v. Presidential
Advisory Comm’n on Election Integrity (Dunlap III), No. 17-cv-
02361, slip op. at 3 (D.D.C. Jan. 28, 2019) (J.A. 216), and the
government filed a notice of appeal.
II
Dunlap disputes our jurisdiction to hear this appeal. In his
view, the district court’s January 2019 order merely clarified its
December 2017 preliminary injunction, which the Commission
did not initially appeal.1 A party must ordinarily wait until final
judgment before it can appeal, and an order that merely clarifies
1
The Commission contends that its January 2018 motion for
reconsideration extended the time to appeal the December 2017
injunction until after the district court denied the motion, at which
point the Commission did file a notice of appeal. Comm’n Reply Br.
11-12 (citing FED. R. APP. P. 4(a)(4)). Because we rest our
jurisdiction on the January 2019 order, we do not consider this
argument.
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an earlier injunction is subject to the same restriction. United
States v. Philip Morris USA Inc., 686 F.3d 839, 844 (D.C. Cir.
2012). By contrast, an order “granting” or “modifying” an
injunction is subject to interlocutory review. 28 U.S.C.
§ 1292(a)(1). “We construe this exception ‘narrowly,’ lest we
‘turn the barrier against piecemeal appeals into Swiss cheese.’”
Wash. Metro. Area Transit Comm’n v. Reliable Limousine Serv.,
LLC, 776 F.3d 1, 9 (D.C. Cir. 2015) (quoting Salazar ex rel.
Salazar v. District of Columbia, 671 F.3d 1258, 1261 (D.C. Cir.
2012)). An order modifies an earlier injunction “when it
actually changes the legal relationship of the parties to the
decree.” Philip Morris, 686 F.3d at 844 (internal quotation
marks omitted).2
The only question at issue here is whether the January 2019
order simply clarified the December 2017 preliminary injunction
or instead changed the parties’ legal relationship with respect to
the subject emails.3
2
To appeal an interlocutory order that has the “practical effect”
of modifying an injunction, as opposed to one that “clearly grants or
denies a specific request for injunctive relief,” there are additional
criteria the appellant must meet. Philip Morris, 686 F.3d at 844
(internal quotation marks omitted). It must show that the order either
(1) “affect[s] predominantly all of the merits,” Salazar, 671 F.3d at
1262 (quoting I.A.M. Nat’l Pension Fund Benefit Plan A v. Cooper
Indus., Inc., 789 F.2d 21, 24 n.3 (D.C. Cir. 1986)), or (2) “might have
a ‘serious, perhaps irreparable, consequence,’ and . . . can be
‘effectually challenged’ only by immediate appeal,” id. (quoting
Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)).
3
The parties do not address whether the additional requirements
noted in footnote 2 are met. On this record, however, we easily
conclude that they are. The January 2019 order undoubtedly does not
“affect[] predominantly all of the merits.” Id. (quoting I.A.M., 789
F.2d at 24 n.3). But the government can “effectually challenge[]” the
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Even construing the exception for interlocutory appeals
“narrowly,” see Salazar, 671 F.3d at 1261, we conclude that,
because the December 2017 preliminary injunction did not
encompass those emails, the January 2019 order requiring their
release was a modification subject to interlocutory review.
Although the emails were among many categories of documents
that Dunlap had requested before the December 2017 injunction,
the district court specifically declined to consider his requests
“line-by-line.” Dunlap I, 286 F. Supp. 3d at 107. Instead, it
gave three examples of “substantive disclosures” that Dunlap
should have received and instructed the government to provide
“any similar documents.” Id. at 108.
The emails at issue here are not “similar” to the three
examples listed by the district court: (1) a draft voter data
request that the Commission’s Vice Chair planned to send to
state election officials; (2) another commissioner’s proposals for
location, content, and possible speakers at a September 2017
meeting; and (3) plans for the next meeting thereafter, including
speaker possibilities and an invitation to an advocacy group. Id.
Private emails between Executive Branch officials and
individuals who served as commissioners about potential
additional commissioners are quite distinct from these examples
of documents about the Commission’s ongoing, substantive
work. The government, when contemplating whether to appeal
order only by immediate appeal, because once the documents are
disclosed, the confidentiality of the appointments process is
compromised. Id. (quoting Carson, 450 U.S. at 84). And such a
disclosure “might have a ‘serious, perhaps irreparable, consequence.’”
Id. (quoting Carson, 450 U.S. at 84). As the district court explained
in its order staying the disclosure of the emails pending appeal, “[t]he
individuals involved are conveying sensitive advice.” Dunlap v.
Presidential Advisory Comm’n on Election Integrity, No. 17-cv-
02361, slip op. at 8 (D.D.C. June 21, 2019).
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the December 2017 preliminary injunction, could not have
reasonably foreseen that the injunction extended that far.
Our understanding of the December 2017 injunction is
reinforced by the district court’s January 2019 order. In its
December 2017 injunction opinion, the district court repeatedly
made clear that Dunlap had a right to “substantive” information.
Id. at 107, 108, 109, 111. But in its January 2019 order, the
court described the subject emails as “quasi-procedural.”
Dunlap III, slip op. at 3 (J.A. 216). To be sure, the court thought
that the emails “could illuminate ways in which [Dunlap’s]
substantive contributions were inhibited.” Id. But the order
nonetheless described the emails as “quasi-procedural,” in sharp
contrast to other documents that it described as “substantive”
and therefore “within the scope of the Court’s preliminary
injunction,” and to still others that it described as “expressly”
covered by the preliminary injunction. Id. at 2-3 (J.A. 215-16).
In sum, because the emails at issue are neither “similar” to
the “examples” of covered documents listed in the December
2017 injunction opinion, nor “substantive disclosures” within
the plain meaning of that opinion, Dunlap I, 286 F. Supp. 3d at
108, they were not among the disclosure obligations imposed by
that injunction. Accordingly, the January 2019 order that
required their release changed the legal relationship between the
parties and hence was immediately appealable.
III
We now turn to the merits of this appeal.
In issuing the preliminary injunction, the district court
rested its jurisdiction on the Mandamus Act, 28 U.S.C. § 1361.
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Dunlap I, 286 F. Supp. 3d at 105.4 Mandamus is “one of the
most potent weapons in the judicial arsenal,” a “drastic and
extraordinary remedy reserved for really extraordinary causes.”
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (internal
quotation marks omitted). As both parties agree, “[t]o 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.” Dunlap I, 286 F. Supp. 3d
at 105 (quoting Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189
(D.C. Cir. 2016)); Comm’n Br. 12-13; Recording of Oral Arg.
at 19:54-20:00 (counsel for Dunlap). On appeal, we examine
whether the plaintiff satisfies those requirements de novo. Am.
Hosp. Ass’n, 812 F.3d at 190.
FACA requires that “documents which were made available
to or prepared for or by each advisory committee shall be
available for public inspection.” 5 U.S.C. app. 2 § 10(b). In
light of FACA’s admonition that advisory committees should be
“fairly balanced” and exercise independent judgment free from
“inappropriate[] influence[,]” id. § 5(b)(2), (b)(3), (c), we have
recognized that committee members have “the right to fully
participate in the work of the committee,” Cummock, 180 F.3d
at 291. To that end, a FACA committee member should receive
information “made available to the [committee] during the
4
See 28 U.S.C. § 1361 (providing that “district courts shall have
original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff”). The district court
turned to mandamus because it determined that FACA does not
include a private right of action. Dunlap I, 286 F. Supp. 3d at 105 n.3.
Because Dunlap agrees that he has to meet the mandamus standard,
Recording of Oral Arg. at 19:54-20:00, we do not question this
premise.
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course of its deliberative process and without which [the
committee member’s] ability to fully and adequately participate
in that process [would be] impaired.” Id. at 292.
As we have noted, to be entitled to mandamus, Dunlap must
show that he has a clear and indisputable right to the emails
discussing Commission appointments. It is undisputed that
these emails were “made available to” certain individuals who
were Commission members but not others. But Dunlap cites no
case or statute that extends the “work of the committee” or its
“deliberative process” to conversations surrounding who should
be on the Commission. Indeed, his counsel concedes that he
knows of no case in which a court has ordered the disclosure of
materials related to the formation or membership of a federal
advisory committee. Recording of Oral Arg. at 20:00-20:44.
Moreover, in this case, the Commission’s mission was expressly
distinct from the appointments process. The Executive Order
establishing the Commission directed it to “study the
registration and voting processes used in Federal elections.”
Exec. Order No. 13,799 § 3, 82 Fed. Reg. at 22,389. It reserved
for the President alone, however, the power to appoint additional
members. Id. § 2, 82 Fed. Reg. at 22,389.
Because Secretary Dunlap cannot clearly and indisputably
show that the emails he seeks fell within the work of the
Commission, the district court lacked jurisdiction to entertain
Dunlap’s request for their disclosure. Am. Hosp. Ass’n, 812
F.3d at 189. We therefore reverse the court’s January 28, 2019
order insofar as it required the release of those emails.
So ordered.