RICHARD J. LEON, United States District Judge.
Plaintiffs bring this action against defendants alleging that the Executive Director of the United States Election Assistance Commission ("EAC" or "Commission"), Brian Newby, acted outside of his authority and in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, when he granted Kansas's, Georgia's, and Alabama's requests to modify the instructions on the National Mail Voter Registration Form ("the Federal Form") to direct voter registration applicants in those three States to submit documentary proof of their United States citizenship in accordance with the States' respective laws and regulations. Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' motions, oppositions, replies, and oral arguments, the briefs of amici curiae Landmark Legal Foundation and Eagle Forum Education & Legal Defense Fund, the relevant law, and the entire record, the Court REMANDS the challenged determinations to the Commission for the limited purpose of providing an interpretation of its internal directive which is necessary for resolution of the threshold issue of whether Newby acted within his subdelegated authority.
The background of this case was set forth in detail during the preliminary injunction phase by our Court of Appeals and by this Court. See League of Women Voters of United States v. Newby, 838 F.3d 1, 4-6 (D.C. Cir. 2016); League of Women Voters of the United States v. Newby, 195 F.Supp.3d 80, 83-88 (D.D.C. 2016). The Court will therefore limit its present statement of the facts and law to only that necessary for the present disposition. In the National Voter Registration Act of 1993 ("NVRA"), Congress directed the Federal Election Commission ("FEC"), "in consultation with the chief election officers of the States," to create a single federal voter registration form that "[e]ach State shall accept and use" to register voters for elections for federal office via mail. 52 U.S.C. §§ 20501(b)(1); 20505(a)(1); 20508(a)(1). That form is known colloquially as the "Federal Form." Would-be voters fill out the application portion of the Federal Form, which is attached to both general instructions for all applicants and a state-by-state guide that includes state-specific instructions "which tell residents of each State what additional information
On January 29, 2016, the EAC's Executive Director Brian Newby granted Kansas's, Alabama's, and Georgia's state instruction requests to include instructions regarding their respective laws requiring voter registration applicants to prove their citizenship, either through documentary proof or alternative processes. AR0063-64; AR0070-71; AR0109-110. Newby was the decisionmaker; the three sitting Commissioners did not formally consider or vote upon the States' requests. The approved modifications to the state-specific instructions were promptly inputted, and a new version of the Federal Form was posted on the EAC website. Newby's approval letters were matter of fact and did not contain any explanation as to how he reached his decisions. He did, however, provide an explanation in a roughly contemporaneous internal memorandum dated February 1, 2016. AR0001-07. Newby explained that several state instruction requests were awaiting review when he became Executive Director in November 2015. AR0001. Feeling a sense of urgency given the upcoming presidential elections, Newby stated that he worked quickly to develop a process for considering and ultimately resolving the requests. AR0001-02. He considered "[s]tate-specific instructional changes [to be] ministerial, and thus, routine," and concluded therefore that "[t]he Executive Director [was to] review the request [only] for clarity and accuracy." AR0002. Newby also explained that — in his view — review of proposed state-specific instructions was not a "policy" function that would require the Commissioners' approval under their February 24, 2015 "Election Assistance Commission Organizational Management Policy Statement," which set forth in general terms the respective responsibilities of the Commissioners and the EAC's Executive Director and which will be discussed in more detail below. AR0004; see also AR0226 — 29. Unlike changes to the Federal Form's general application page, Newby stated, alterations to state-specific instructions impact only applicants in the State to which they apply, and therefore their approval or denial is not a broadly applicable "policy" decision. AR0004. He also noted that previous EAC executive directors had handled requests to amend state-specific instructions "without Commissioner involvement." AR0004. Finally, Newby stated, in essence, that his focus was on whether a voter could become registered under state law without the information requested by the proposed state-specific instruction. AR0004. He did not, however, consider whether the states "need[ed]" documentary proof of citizenship
Plaintiffs filed this lawsuit against Newby, in his official capacity as Executive Director of the EAC, and the EAC itself (collectively "defendants"), on February 12, 2016.
On February 17, 2016, plaintiffs moved for a temporary restraining order and preliminary injunction ordering immediate reversal of Newby's changes to the Federal Form on the Commission's website, ordering defendants to immediately withdraw the January 29, 2016 letters issued to Alabama, Georgia and Kansas, and requiring defendants to instruct election officials in those States to replace any copies of the Federal Form that contained the changes authorized by Newby. On February 22, I granted Kansas Secretary of State Kris W. Kobach's and the Public Interest Legal Foundation's ("PILF") motions to intervene as defendants. I then denied plaintiffs' motion as to the request for a temporary restraining order on February 23, 2016, Mem. Order [Dkt. #34], and as to the request for a preliminary injunction on June 29, 2016, Mem. Op. and Order [Dkts. ##92, 93]. Plaintiffs promptly appealed to the Court of Appeals for the District of Columbia Circuit. Notice of Appeal (July 1, 2016) [Dkt. #95]. Argument was heard by that Court on September 8, 2016, and the
During the pendency of the appeal, the parties went forth with filing and briefing their respective motions for summary judgment.
It would be an understatement to say that the parties' briefing presents difficult questions. In urging the Court to impart a narrow ruling on summary judgment that would thread the proverbial needle by reaching only Counts IV and V of plaintiffs' Complaint, the Department of Justice has recalled the sage words of Justice Frankfurter: "These are perplexing questions. Their difficulty admonishes [the Court] to observe the wise limitations on [its] function and to confine [itself] to deciding only what is necessary to the disposition of the immediate case." Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 372-73, 75 S.Ct. 845, 99 S.Ct. 1155 (1955). I wholeheartedly agree, but in my view it is Counts I and II, which address the Executive Director's authority to rule upon the States' requests, that present the true opportunity for a narrow disposition. After all, these are threshold questions and are potentially dispositive. If Newby's actions were ultra vires, they must be set aside, and it matters not whether his reasoning can withstand APA review. To say the least, it would not be prudent for this Court to make rulings regarding the thorny statutory and constitutional questions presented in the parties' briefing regarding Counts III and IV if its ruling in Counts I or II dictate that, either under the HAVA, administrative law principles, or the Commission's 2015 Policy Statement, the Commissioners, and not the Executive Director, are to rule upon state instruction requests.
Thus, in evaluating the cross-motions for summary judgment, the first issue for the Court is whether, as plaintiffs claim, the EAC may rule upon States' requests only through a vote of the Commissioners. See Pls.' Mem. 20 — 22 (relying on 52 U.S.C. § 20928, which states that "[a]ny action which the Commission is authorized to carry out under [the HAVA] may be carried out only with the approval of at least three of its members"). Assuming, without deciding, that the Commissioners may subdelegate their authority to grant or deny States' requests for modification of their state-specific instructions on the Federal Form to the Executive Director, the next question for the Court will be whether they did so. The Administrative Procedure Act compels courts to "hold unlawful and set aside agency action, findings, and conclusions" if they are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). A corollary of this directive is that courts reviewing agency action must determine that "the particular official acting on behalf of the agency [was] delegated the authority to act; otherwise such agency action is invalid." Am. Vanguard Corp. v. Jackson, 803 F.Supp.2d 8, 12 (D.D.C. 2011). When faced with the question of whether a particular agency official was subdelegated authority to act, courts in this Circuit examine the record, the relevant statute, and the implementing regulations to discern whether subdelegation occurred. See Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 810 (D.C. Cir. 2006); Town of E. Hartford v. Harris, 648 F.2d 4, 6 (D.C.
I will thus begin by evaluating the record's evidence as to any subdelegation of the authority to rule upon States' requests to modify their state-specific instructions. The record here reveals that there has been no consistent or longstanding practice as to the Executive Director's authority to grant or deny state instruction requests. In the early days of the Federal Form, the FEC made changes to state-specific instructions by a vote of the Commissioners. AR0163; AR0204. In August 2000, the FEC shifted gears and modified its procedure to provide that the staff of its Office of Election Administration would be responsible for making any changes to state-specific instructions. AR0163; AR0204. Under the new procedure, however, FEC Commissioners would continue to vote on any changes to the Federal Form that were applicable to more than one State. AR0163. When Congress transferred responsibility over the Federal Form to the EAC, the Commission's Associate General Counsel and Executive Director were initially responsible for approving and denying state instruction requests. See AR0230-32, AR0233-35. This practice, however, does not appear to have been memorialized in any written procedure.
On March 6, 2006, pursuant to that arrangement, the Executive Director rejected Arizona's request to include its documentary proof of citizenship requirement in its state-specific instructions. AR0233-35. Four months later, in light of ensuing litigation and voter confusion in Arizona, the Commissioners departed from the practice of staff management of state instruction requests and conducted a vote amongst themselves as to whether to include Arizona's proposed instruction. AR0261-62. The vote was 2-2, which meant the instruction was not approved. AR0245-50. In the years that followed, the Commissioners discussed on several occasions the lack of procedure for dealing with state instruction requests, and they considered several options for structuring the process and allocating duties among the Commissioners and the Executive Director. AR0375-76; AR0530-32; AR0700; AR0711-19; see also AR0732-78. For example, under one proposal the Executive Director would have implemented a state instruction request if it was a request to "update" its state-specific instructions, meaning "bring up to date information that (1) is presently contained on the state specific instructions of the Federal Form, and (2) is information required by and consistent with Federal statute." AR0776-77 (describing requests regarding state voter eligibility
On September 12, 2008, the Commissioners adopted a document entitled "Roles and Responsibilities of the Commissioners and Executive Director of the U.S. Election Assistance Commission," which "identif[ied] the specific roles and responsibilities of the ... Executive Director and [the] four Commissioners." AR0209-16; Kobach v. U.S. Election Assistance Comm'n, 772 F.3d 1183, 1190 (10th Cir. 2014). The document stated that the Executive Director was "expected to (1) prepare policy for commissioner approval, (2) implement policies once made, and (3) take responsibility for administrative matters." AR0209. Moreover, the Executive Director was to "[p]rovide for the overall direction and administration of EAC's operating units and programs, consistent with the agency's strategic plan and any ... commissioner adopted policies," and "[m]aintain the Federal Voter Registration Form consistent with the NVRA and EAC Regulations and policies." AR0215. The document further provided that the Commissioners would "not directly act" on matters that they had delegated to the Executive Director. AR0216.
Importantly, immediately following the adoption of the 2008 Roles and Responsibilities document, the Commissioners themselves continued to vote on all state instruction requests. AR0217, AR219-20. Indeed, from 2008 to 2010 every decision on state instruction requests was made through a vote of the Commissioners. AR0217, AR0219-20. However, at the end of 2010, the Commission found itself with only two Commissioners, and thus, its quorum was lost. Executive Director Thomas Wilkey instituted an interim procedure under which the Executive Director, after consultation with the General Counsel and other Commission staff, would generally make determinations regarding state instruction requests but that any "[r]equests that raise[d] issues of broad policy concern to more than one State w[ould] be deferred until the re-establishment of a quorum." AR0217-18. Wilkey asserted that the interim procedure was consistent with the Commission's past precedent, in that, prior to 2008, the practice had been for staff to approve or deny state instruction requests. AR0218. Pursuant to Wilkey's memorandum, EAC staff made determinations regarding state instruction requests from 2011 to 2014, including Executive Director Alice Miller's 2014 denial of Arizona's, Georgia's, Kansas's requests to include instructions regarding their documentary proof of citizenship requirements. AR0220-25, AR0283-328. In subsequent litigation, the Court of Appeals for the Tenth Circuit found the Executive Director to be acting within her subdelegated authority under
When the Commission regained a quorum in early 2015, the three newly minted Commissioners adopted via unanimous vote an "Organizational Management Policy Statement." AR0226-229; AR0857-861. The 2015 Policy Statement expressly superseded the 2008 Roles and Responsibilities document. AR0226. However, the two documents bear striking similarities. As to the "[d]ivision of authority regarding policymaking and day-to-day operations," the 2015 Policy Statement provides that "[t]he Commissioners shall make and take action in areas of policy." AR0227. Further, "[p]olicymaking is a determination setting an overall agency mission, goals and objectives, or otherwise setting rules, guidance or guidelines. Policymakers set organizational purpose and structure, or the ends the agency seeks to achieve. The EAC makes policy through the formal voting process." AR0227. Finally, "[t]he Executive Director in consultation with the Commissioners is expected to: (1) prepare policy recommendations for commissioner approval, (2) implement policies once made, and (3) take responsibility for administrative matters. The Executive Director may carry out these responsibilities by delegating matters to staff." AR0227. Notably, however, the 2015 Policy Statement did not delegate any specific tasks to the Executive Director, as the 2008 Roles and Responsibilities document did when it provided, inter alia, that the Executive Director "[m]aintain the Federal Voter Registration Form consistent with the NVRA and EAC Regulations and policies." Compare AR00226-29 with AR0209-16. At the meeting in which the Commissioners adopted the 2015 Policy Statement, Commissioner Hicks, then Vice-Chair of the Commission, stated, "I and my fellow Commissioners agree that [the 2015 Policy Statement] continues to instruct the Executive Director to continue maintaining the federal form consistent with the Commissioners' past directives, unless and until such directions were counter made should the agency find itself again without a quorum." AR0860.
Due to this near-constant fluctuation of procedures for processing state instruction requests, the Court cannot draw conclusions from the Commission's practices as revealed in the record. The HAVA and the NVRA are silent on the procedures for evaluating state instruction requests, and, as the record demonstrates, deadlock — or perhaps dysfunction — has prevented the Commission from adopting any relevant implementing regulations that would shed light on the subdelegation issue. Thus, the Court is left with only the 2015 Policy Statement. The federal defendants state that "the choice not to list specific tasks for the Executive Director" in the 2015 Policy Statement "did not remove those responsibilities" set forth in the 2008 Roles and Responsibilities document including the responsibility of maintaining the Federal Form. Defs.' Mem. 11; see also PILF's Mem. 22-23.
It is also unclear that approving, or denying, requests actually amounts to "implement[ing] policies," made by the Commissioners, AR0227, as the Executive Director has the delegated authority to do. The 2015 Policy Statement describes "policymaking" as "setting an overall agency mission, goals and objectives, or otherwise setting rules, guidance or guidelines." AR0227. The Commissioners have never adopted or issued generally applicable guidelines regarding state-specific instructions. Instead, they have only voted in an ad hoc manner on specific pending requests. Plaintiffs persist that the Commissioners previous vote on Arizona's state instruction requests form part of the body of the Commission's "policy" towards documentary proof of citizenship state instruction requests. Pls.' Mem. 27.
For all these reasons, the 2015 Policy Statement is ambiguous. Generally, when an agency's own rule or regulation is ambiguous, the agency's interpretation is "give[n] substantial deference." Confederated Tribes of Grand Ronde Cmty. of Oregon v. Jewell, 830 F.3d 552, 559 (D.C. Cir. 2016). "Logic suggests that this rule should apply with even greater force, where, as here, the agency is neither exercising legislative rulemaking authority nor interpreting a statute, but rather issuing rules governing its own internal operations." Grossman v. United States, 57 Fed. Cl. 319, 326 (2003). The Commission has expertise and insight that makes it better situated to interpret the meaning of its ambiguous organizational directive than is this Court, and it would therefore be imprudent for me to impose my own interpretation at this juncture. But in order to afford substantial deference to a reasonable interpretation set forth by the Commission, the Commission must first adopt one. Mindful of the ordinary practice, under which the court remands to the agency after identifying statutory ambiguity in order for the agency to make an initial interpretation, see INS. v. Orlando Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004), I have concluded that a remand is indeed warranted here. Put simply, remand, as opposed to supplemental briefing, is necessary to ensure the Commission — not Government counsel — brings its expertise and insight to bear.
For all the foregoing reasons, the Court hereby REMANDS to the Election Assistance Commission Newby's grants of Kansas's, Alabama's, and Georgia's requests to include their documentary proof of citizenship requirements in their state-specific instructions on the Federal Form. Because remand is appropriate for the disposition of a threshold issue, the Court defers ruling on the merits of the parties' cross-motions for summary judgment. See In re Polar Bear Endangered Species Act Listing & 4(d) Rule Litig., 748 F.Supp.2d 19, 22 (D.D.C. 2010); cf. In re Checkosky, 23 F.3d 452, 463 (D.C. Cir. 1994) (noting that "reviewing courts will often and quite properly pause before exercising full judicial review and remand to the agency for a more complete explanation of a troubling aspect of the agency's decision"). The Court will stay this case during the remand period, but, as the case will still be pending, the preliminary injunction will remain in place. See League of Women Voters of United States v. Newby, 838 F.3d 1, 15 (D.C. Cir. 2016) (issuing a preliminary injunction to remain in place "pending entry of the final judgment"). The federal defendants shall file the Commission's explanation and any supporting materials on or before June 1, 2017. Within fourteen days (14) of the filing, the parties shall confer and file a joint proposed schedule for any supplemental briefing.