Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity

• Decision Date: 26 December 2017
• Docket Number: No. 17-5171,17-5171
• Citation: 878 F.3d 371
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Appellant v. PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

878 F.3d 371

ELECTRONIC PRIVACY INFORMATION CENTER, Appellant

v.PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Appellees

No. 17-5171

United States Court of Appeals, District of Columbia Circuit.

Argued November 21, 2017

Decided December 26, 2017

Marc Rotenberg, Washington, DC, argued the cause for the appellant. Alan Butler was with him on brief.

Daniel 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 appearance.

Lawrence J. Joseph was on brief for the amicus curiae Eagle Forum Education & Legal Defense Fund in support of the appellees.

Before: Henderson, Circuit Judge, and Williams and Ginsburg, Senior Circuit Judges.

Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge WILLIAMS .

Karen Lecraft Henderson, Circuit Judge:

By 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.

The 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, 12-13.¹ 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 , 266 F.Supp.3d 297, 2017 WL 3141907 (D.D.C. July 24, 2017). The court concluded (inter alia ) that EPIC has standing, id . at *6-*10, 266 F.Supp.3d at 308–15, 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, 266 F.Supp.3d at 315–19.

On an 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, J.))).²

I. BACKGROUND

In 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).

In May 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 . § 6.

In June 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.

JA 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 deleted without ever having been accessed by the Commission." JA 235.

EPIC filed its complaint in July 2017, naming as defendants the Commission, Kobach and other entities and officials.³ As relevant here, the complaint raised two related claims. Count One alleged "unlawful agency action," i.e., that the defendants "initiate[d] collection of voter data" without first "creating, reviewing, and publishing a privacy impact assessment" under the E-Government Act. Compl. 12 (capitalization altered). Count Two alleged "agency action unlawfully withheld," i.e., that the defendants "have failed to create, review, and/or publish a privacy impact assessment for [their] collection of voter data, as required by" the E-Government Act. Id . at 12-13 (capitalization altered). EPIC asked the district court to remedy the alleged violations by (inter alia ) "halt[ing] collection of personal voter data" and ordering the defendants "to promptly conduct a privacy impact assessment prior to the collection of personal voter data."Id . at 15.

EPIC later moved for a preliminary injunction. It asked the district court to prohibit the defendants "from collecting state voter data prior to the completion of a privacy impact assessment." Mem. in Support, Dkt. No. 35-1 at 41. The court denied the motion. EPIC , 266 F.Supp.3d at 319–20, 2017 WL 3141907, at *14. Based on the available evidence, the court held (inter alia ) that EPIC has standing, id . at 308–15, 2017 WL 3141907 at *6-*10, but that the Commission lacks " ‘substantial independent authority’ " and so is not "an ‘agency’ for purposes of the APA," id . at 315, 2017 WL 3141907 at *11 (quoting Citizens for Responsibility & Ethics in Washington v. Office of Admin. , 566 F.3d 219, 222 (D.C. Cir. 2009) ). The court was also unpersuaded that any other defendant likely to be involved in collecting voter data is an agency under the APA. Id . at 316–19, 2017 WL 3141907 at *12-*13. Accordingly, the court concluded, EPIC "has not demonstrated a likelihood of success on the merits." Id . at 319, 2017 WL 3141907 at *13.

II. ANALYSIS

"The judicial Power" of the federal courts extends only to "Cases" and "Controversies," U.S. CONST. art. III, § 2, cl. 1, "and there is no justiciable case or controversy unless the plaintiff has standing," West v. Lynch , 845 F.3d 1228, 1230 (D.C. Cir. 2017) (citing Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). To establish standing, the plaintiff must show (1) it has suffered a "concrete and particularized" injury (2) that is "fairly traceable to the challenged action of the defendant" and (3) that is "likely" to be "redressed by a favorable decision," i.e., a decision granting the plaintiff the relief it seeks. Id . (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

The plaintiff bears the burden of establishing all three elements of standing. Lujan , 504 U.S. at 561, 112 S.Ct. 2130. The "manner and degree of evidence required" depends on the "stage[ ] of the litigation." Id . In the context of a preliminary injunction motion, we require the plaintiff to "show a ‘substantial likelihood’ of standing" "under the heightened standard for evaluating a motion for summary judgment." Food & Water Watch , 808 F.3d at 912-13 (quoting Klayman , 800 F.3d at 568 (opinion of Williams, J.)); see Nat'l Wildlife Fed'n v. Burford , 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring and dissenting). Thus, the plaintiff cannot "rest on ... mere allegations, but must set...