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

United States Court of Appeals for the District of Columbia Circuit

November 21, 2017, Argued; December 26, 2017, Decided

No. 17-5171


 [*374]   [**397]  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 [***2]  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 U.S. Dist. LEXIS 114787, 2017 WL 3141907 (D.D.C. July 24, 2017). The court concluded (inter alia) that EPIC has standing, 2017 U.S. Dist. LEXIS 114787, [WL] 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, 2017 U.S. Dist. LEXIS 114787, [WL] at *11-*13.

 [*375]   [**398]  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, 414 U.S. App. D.C. 162 (D.C. Cir. 2015) (] "Ordinarily, a court [***3]  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, 420 U.S. App. D.C. 366 (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, 419 U.S. App. D.C. 199 (D.C. Cir. 2015) (opinion of Williams, J.))).2

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878 F.3d 371 *; 433 U.S. App. D.C. 394 **; 2017 U.S. App. LEXIS 26535 ***; 2017 WL 6564621


Subsequent History: Petition denied by Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 2018 U.S. App. LEXIS 8401 (D.C. Cir., Apr. 2, 2018)

US Supreme Court certiorari denied by Elec. Privacy Info, 139 S. Ct. 791, 202 L. Ed. 2d 629, 2019 U.S. LEXIS 204 (U.S., Jan. 7, 2019)

Prior History:  [***1] Appeal from the United States District Court for the District of Columbia. (No. 1:17-cv-01320).

Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 266 F. Supp. 3d 297, 2017 U.S. Dist. LEXIS 114787 (D.D.C., July 24, 2017)


privacy, organizational, voter, collection, E-Government Act, quotation, district court, preliminary injunction, defendants', agency's action, substantial likelihood, inter alia, redressability

Civil Procedure, Appeals, Remedies, Injunctions, Preliminary & Temporary Injunctions, Preliminary Considerations, Justiciability, Standing, Administrative Law, Governmental Information, Personal Information, Standing, Burdens of Proof, Evidence, Burdens of Proof, Allocation, Constitutional Law, Case or Controversy, Elements, Judgments, Summary Judgment, Injury in Fact, Particular Parties