Pub. Interest Legal Found. v. Boockvar

• Decision Date: 26 February 2019
• Docket Number: CIVIL ACTION NO. 1:18-CV-463
• Citation: 370 F.Supp.3d 449
• Parties: The PUBLIC INTEREST LEGAL FOUNDATION, Plaintiff v. Kathy BOOCKVAR, in Her Official Capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Jonathan M. Marks, in His Official Capacity as the Commissioner of the Bureau of Commissions, Elections, and Legislation, Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

370 F.Supp.3d 449

The PUBLIC INTEREST LEGAL FOUNDATION, Plaintiff

v.Kathy BOOCKVAR, in Her Official Capacity as Acting Secretary of the Commonwealth of Pennsylvania,¹ and Jonathan M. Marks, in His Official Capacity as the Commissioner of the Bureau of Commissions, Elections, and Legislation, Defendants

CIVIL ACTION NO. 1:18-CV-463

United States District Court, M.D. Pennsylvania.

Signed February 26, 2019

Noel H. Johnson, Pro Hac Vice, John C. Adams, Public Interest Legal Foundation, J. Christian Adams, Pro Hac Vice, Indianapolis, IN, Linda Ann Kerns, Law Offices of Linda Ann Kerns, LLC, Philadelphia, PA, for Plaintiff.

Daniel T. Brier, Donna A. Walsh, Myers Brier & Kelly, LLP, Scranton, PA, for Defendants.

MEMORANDUM

Christopher C. Conner, Chief Judge

The Public Interest Legal Foundation (the "Foundation") commenced this action against Robert Torres ("Secretary Torres"), in his capacity as then-Acting Secretary of the Commonwealth of Pennsylvania, and Jonathan Marks ("Commissioner Marks"), in his capacity as Commissioner of the Bureau of Commissions, Elections, and Legislation (the "Bureau") of the Pennsylvania Department of State (the "Department"). The Foundation asserts a claim for violation of the National Voting Registration Act of 1993 ("the NVRA" or "the Act"), 52 U.S.C. § 20501 et seq. Defendants move to dismiss the Foundation's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 10).

I. Factual Background & Procedural History

The Foundation is a nonpartisan organization dedicated to "promot[ing] the integrity of elections nationwide." (Doc. 1 ¶ 5). In pursuit of this objective, the Foundation expends time and resources "to ensure that voter rolls ... are free from ineligible registrants, noncitizens, individuals who are no longer residents[,] and individuals who are registered in more than one location." (Id. ) In September 2017, the City of Philadelphia reported that a "glitch" at various offices of the Pennsylvania Department of Transportation had enabled noncitizens to register to vote when acquiring or renewing their driver's licenses. (Id. ¶ 31). The Pennsylvania General Assembly convened hearings on the "glitch" and other issues concerning noncitizen registration and voting. (See id. ¶¶ 42, 53). Secretary Torres, Commissioner Marks, and representatives of the Foundation all testified at these hearings. (Id. ¶¶ 43, 47, 54-55).

Contemporaneous with the hearings, the Foundation sought access to records "concerning noncitizen registrants, including records related to their removal from the voter registration lists and referrals to law enforcement." (Id. ¶ 68). The Foundation first requested these "voter list maintenance" records from Commissioner Marks by letter dated October 23, 2017. (Id. ¶¶ 67-69; Doc. 1-8 at 1-3). A Foundation representative attempted to inspect the requested records in person at the Bureau two days later. (Doc. 1 ¶¶ 71-75). A Bureau employee denied access to the records, and a representative from the Office of Chief Counsel to the Department indicated that the Foundation's request was under review. (Id. ¶¶ 72-74). On October 30, 2017, agency open records officer Rebecca Fuhrman ("Fuhrman") asked for an additional 30 days to respond. (Id. ¶ 76; Doc. 1-9 at 6-7). When that timeframe elapsed without a response, the Foundation renewed the records request to Commissioner Marks and Fuhrman by letter, indicating that a Foundation representative would visit the Bureau on December 6, 2017 to inspect the records. (Doc. 1 ¶¶ 79-81; Doc. 1-9 at 1-2). The letter contained the following language: "This is your first notice that if you fail to make these records available for public inspection, you will be in violation of the NVRA and subject to an action to enforce the public records provisions of the NVRA." (Doc. 1-9 at 2).

On December 5, 2017, Kathleen Kotula ("Kotula"), deputy chief counsel for the Department, emailed the Foundation indicating that the records would not be available for inspection the following day. (Doc. 1 ¶ 82). The Department did not permit the Foundation's representative to inspect the records on December 6, 2017. (Id. ¶¶ 83-84, 86). Kotula emailed a letter to the Foundation from Commissioner Marks which formally denied the Foundation's records request. (Id. ¶¶ 87-88). In the letter, Commissioner Marks explained the Department's position that the Foundation was not entitled to the records under the NVRA. (Id. ¶¶ 88-89).

On December 20, 2017, the Foundation sent Commissioner Marks a letter entitled "NVRA violation notice." (Id. ¶ 96; see Doc. 1-10). Citing to the applicable NVRA provisions, the letter identified the Department's denial of the Foundation's records request as a violation of the statute and stated that "[t]he Department is hereby notified that it now faces federal litigation should it continue to deny access to the requested records." (Doc. 1-10 at 1 (emphasis omitted) ). The Foundation also noted that, because the purported violation occurred within 120 days of an election,² the Department had 20 days to correct it under the Act. (Id.; Doc. 1 ¶ 98). The Department never responded. (Doc. 1 ¶ 99).

The Foundation commenced this action alleging that defendants violated the Act's public disclosure provision by withholding access to the list maintenance records. Defendants move to dismiss the Foundation's claim for lack of subject matter jurisdiction and for failure to state a claim. The motion is fully briefed and ripe for disposition. Defendants also request oral argument on their motion under Local Rule of Court 7.9. (Doc. 13). Because we find oral argument unnecessary to disposition of the instant motion, we will deny this request.

II. Legal Standard

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a claim for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Such jurisdictional challenges take of one two forms: (1) parties may levy a "factual" attack, arguing that one or more of the pleading's factual allegations are untrue, removing the action from the court's jurisdictional ken; or (2) they may assert a "facial" challenge, which assumes the veracity of the complaint's allegations but nonetheless argues that a claim is not within the court's jurisdiction. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) ). In either instance, it is the plaintiff's burden to establish jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

B. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) ). In addition to reviewing the facts contained in the complaint, the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) ).

Federal notice and pleading rules require the complaint to provide "the defendant fair notice of what the ... claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). To test the sufficiency of the complaint, the court conducts a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’ " Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Next, the factual and legal elements of a claim must be separated; well-pleaded facts are accepted as true, while mere legal conclusions may be disregarded. Id. at 131-32 ; see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a "plausible claim for relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ); Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A claim is facially plausible when the plaintiff pleads facts "that allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

III. Discussion

Defendants contend that the Foundation cannot assert a claim under the NVRA because the Foundation lacks constitutional standing, falls outside the zone of interests protected by the statute, and failed to provide Secretary Torres with adequate notice before filing suit. Defendants also argue that the records the Foundation seeks are not subject to the Act's public disclosure provision. We review defendants' Article III standing argument under Rule 12(b)(1) and defendants' remaining arguments under Rule 12(b)(6).³

A. Article III Standing

Article III of the United States Constitution limits federal court jurisdiction to "cases" or "controversies." U.S. CONST. art. III, § 2. To establish Article III standing, a plaintiff must demonstrate "(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likel[ihood] that the injury will be redressed by a favorable...