United States Court of Appeals, District of Columbia Circuit
November 21, 2017
from the United States District Court for the District of
Columbia (No. 1:17-cv-01320)
Rotenberg argued the cause for the appellant. Alan Butler was
with him on brief.
Tenny, Attorney, United States Department of Justice, argued
the cause for the appellees. Mark B. Stern, Attorney, was
with him on brief. Elizabeth J. Shapiro, Attorney, entered an
Lawrence J. Joseph was on brief for the amicus curiae Eagle
Forum Education & Legal Defense Fund in support of the
Before: Henderson, Circuit Judge, and Williams and Ginsburg,
Senior Circuit Judges.
LeCraft Henderson, Circuit Judge.
executive order issued in May 2017, the President established
the Presidential Advisory Commission on Election Integrity
(Commission). Exec. Order No. 13799, 82 Fed. Reg. 22389 (May
11, 2017). The Commission is a temporary and "solely
advisory" body charged with studying the integrity of
federal elections. Id. § 3. In keeping with
that objective but lacking any authority to demand
information, the Commission "requested" that each
state and the District of Columbia provide the Commission
with certain "publicly-available voter roll data."
Joint Appendix (JA) 51.
Electronic Privacy Information Center (EPIC)-a nonprofit
organization whose stated mission is "to focus public
attention on emerging privacy and civil liberties
issues"-sued the Commission and other entities and
officials, claiming violations of the Administrative
Procedure Act (APA), 5 U.S.C. § 706. Pl.'s Second
Am. Compl. (Compl.), Dkt. No. 33 at 2, 12-13. EPIC sought a
preliminary injunction to prohibit the defendants from
collecting voter data unless and until they complete a
privacy impact assessment as allegedly required by the
E-Government Act of 2002, Pub. L. No. 107-347, § 208(b),
116 Stat. 2899, 2921-22 (Dec. 17, 2002). The district court
denied preliminary injunctive relief. EPIC v.
Presidential Advisory Comm'n on Election Integrity,
2017 WL 3141907 (D.D.C. July 24, 2017). The court concluded
(inter alia) that EPIC has standing, id. at
*6-*10, but is unlikely to succeed on the merits because
under the APA neither the Commission nor any other defendant
constitutes an "agency" that the court can enjoin
to produce an assessment, id. at *11-*13.
interlocutory basis, EPIC appeals the denial of a preliminary
injunction. See 28 U.S.C. § 1292(a)(1). We
agree with the district court that EPIC is unlikely to
succeed on its APA claims. But we reach that conclusion for a
different reason from the one the district court identified.
See Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C.
Cir. 2015) ("Ordinarily, a court of appeals can affirm a
district court judgment on any basis supported by the record,
even if different from the grounds the district court
cited."). Specifically, we uphold the denial of a
preliminary injunction because EPIC has not shown a
substantial likelihood of standing. See Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir.
2015) ("A party who fails to show a 'substantial
likelihood' of standing is not entitled to a preliminary
injunction." (quoting Obama v. Klayman, 800
F.3d 559, 568 (D.C. Cir. 2015) (opinion of Williams,
2002, the Congress passed the E-Government Act to streamline
government use of information technology "in a manner
consistent with laws regarding protection of personal
privacy, national security, records retention, access for
persons with disabilities, and other relevant laws."
E-Government Act § 2(b)(11). Section 208 of the Act,
entitled "Privacy Provisions, " states that
"[t]he purpose of this section is to ensure sufficient
protections for the privacy of personal information as
agencies implement citizen-centered electronic
Government." Id. § 208(a). To promote that
purpose, section 208 requires an "agency" to
conduct, review and, "if practicable, " publish a
privacy impact assessment before it collects
"information in an identifiable form permitting the
physical or online contacting of a specific individual, if
identical questions have been posed to, or identical
reporting requirements imposed on, 10 or more persons."
Id. § 208(b)(1). A party with standing can make
a claim under that provision for relief under the APA's
direction to courts to "compel agency action unlawfully
withheld, " 5 U.S.C. § 706(1), and to "set
aside agency action . . . not in accordance with law, "
id. § 706(2)(A).
2017, the President established the Commission as a
"solely advisory" body. Exec. Order No. 13799,
§ 3. He charged it with studying and submitting a report
about the "integrity of" and "vulnerabilities
in" the voting systems and procedures used in federal
elections. Id. Thirty days after the Commission
submits its report, it will cease to exist. Id.
2017, Kris Kobach-Secretary of State of Kansas and Vice Chair
of the Commission-wrote a letter to the chief election
officer of each state and the District of Columbia. Each
letter "request[ed]" that the addressee
provide to the Commission the publicly-available voter roll
data for [your state], including, if publicly available under
the laws of your state, the full first and last names of all
registrants, middle names or initials if available,
addresses, dates of birth, political party (if recorded in
your state), last four digits of social security number if
available, voter history (elections voted in) from 2006
onward, active/inactive status, cancelled status, information
regarding any felony convictions, information regarding voter
registration in another state, information regarding military
status, and overseas citizen information.
61-62. Each letter stated that "any documents" a
state submits to the Commission "will also be made
available to the public, " JA 62, but Kobach clarified
in district court that "the Commission intends to
de-identify" any voter data it receives so that
"the voter rolls themselves will not be released to the
public, " JA 52. As far as the record shows, only
Arkansas has submitted any data and it "has been ...