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Dunlap v. Presidential Advisory Commission On Election Integrity

United States Court of Appeals, District of Columbia Circuit

December 20, 2019

Matthew Dunlap, Appellee
v.
Presidential Advisory Commission on Election Integrity, et al., Appellants

          Argued November 18, 2019

          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.

          OPINION

          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 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 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]

         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 ...


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