UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED TO PROTECT DEMOCRACY, et al. : 

 : 

 Plaintiffs, : Civil Action No.: 17-2016 (RC) 

 : 

 v. : Re Document Nos.: 10, 22, 24 

 : 

PRESIDENTIAL ADVISORY COMMISSION : 

ON ELECTION INTEGRITY, et al. : 

 : 

 Defendants. : 

MEMORANDUM OPINION 

GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING AS MOOT PLAINTIFFS’ MOTION FOR 

PRELIMINARY INJUNCTION; DENYING AS MOOT PLAINTIFFS’ MOTION FOR LEAVE TO FILE 

DECLARATION

I. INTRODUCTION 

In May 2017, the President of the United States signed Executive Order 13,799, which 

established the Presidential Advisory Commission on Election Integrity (the “Commission”). 

Approximately one month later, that Commission issued letters to each of the 50 states and the 

District of Columbia requesting that they provide certain publically available voter roll 

information so that the Commission might “fully analyze vulnerabilities and issues related to 

voter registration and voting” in the United States. These requests have been the subject of 

substantial public attention and have generated several lawsuits challenging their legality. This 

is but another one of those lawsuits. In this case, Plaintiffs, United to Protect Democracy and 

The Protect Democracy Project, Inc., challenge the Commission’s failure to adhere to the notice 

and comment procedures specified by the Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq. 

Now pending before the Court are Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 10) 

and Defendants’ Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules 
2 

of Civil Procedure (ECF No. 22). For the reasons stated below, the Court grants Defendants’ 

Motion to Dismiss and denies as moot Plaintiffs’ Motion for a Preliminary Injunction. 

II. BACKGROUND 

A. The Paperwork Reduction Act 

The Paperwork Reduction Act (44 U.S.C. § 3501, et seq. ) (“PRA”) sets standards for 

federal agencies when collecting information from the public. “The Paperwork Reduction Act 

was enacted in response to one of the less auspicious aspects of the enormous growth of our 

federal bureaucracy: its seemingly insatiable appetite for data.” Dole v. United Steelworkers of 

Am., 494 U.S. 26, 32 (1990). Thus, in 1980, Congress enacted the PRA to institute a 

comprehensive scheme for federal information collection and “designated [the Office of 

Management and Budget (“OMB”)] the overseer of other agencies with respect to paperwork.” 

Id. Under the PRA, an agency is required to submit any proposed collection of information to 

the OMB for review and approval. See 44 U.S.C. § 3507(a)(1)(C). In addition, the agency must 

publish notice of its proposed collection in the Federal Register, stating that it is seeking 

approval from the Director of OMB and soliciting comments from the public. See id. at 

§ 3507(a)–(b). In that notice, the agency must set forth (1) a title for the collection of 

information, (2) a summary of the collection of information, (3) a brief description of the need 

for the information and the proposed use of the information, (4) a description of the likely 

respondents and proposed frequency of response to the collection of information, and (5) an 

estimate of the burden that shall result from the collection of information. Id. at 

§ 3507(a)(1)(D)(ii)(I)–(V). After providing the public an opportunity to comment on the 

collection for at least 30 days, the Director may then decide whether to approve the proposed 

collection. See id. at § 3507(b). If the Director approves, the agency may proceed with its 
3 

collection and the Director will issue a control number that must be displayed on the collection 

of information. See id. at § 3507(a)(2), (3). 

B. The Presidential Advisory Commission on Election Integrity 

On May 11, 2017, President Donald Trump signed Executive Order 13,799, which 

established the Commission. See Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). 

The Commission is chaired by the Vice President of the United States and may include an 

additional fifteen members appointed by the President. Id. at § 2. The President’s Executive 

Order charged the newly constituted Commission with “study[ing] the registration and voting 

processes used in Federal elections” and mandated that the Commission submit a report to the 

President on various topics, including “vulnerabilities in voting systems and practices used for 

Federal elections that could lead to improper voter registrations and improper voting, including 

fraudulent voter registrations and fraudulent voting.” Id. at § 3(c). The Commission, however, 

is to be “solely advisory” and must dissolve within thirty days after it submits its report. Id. at §§ 

3, 6. 

On June 28, 2017, in furtherance of its mandate, the Commission sent substantially 

similar letters to Secretaries of State and other election officials in all 50 states and the District of 

Columbia. These letters invited recipients to provide information and opinions on seven broad 

policy questions relating to the administration of elections. Compl. ¶¶ 28–29. For example, the 

Commission sought opinions on potential changes to federal election law related to election 

integrity, “evidence or information” relating to voter fraud, information on “convictions for 

election-related crimes” since November 2000, and recommendations for preventing voter 

intimidation or disenfranchisement. Compl. ¶ 29. In addition, the Commission requested that 

recipients voluntarily “provide to the Commission the publicly-available voter roll data for [their 
4 

states].” Compl. ¶ 30. Specifically, the Commission requested “the full first and last names of 

all registrants, middle names or initials if available, addresses, dates of birth, political party (if 

recorded in [that] 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.” Compl. ¶ 30; see also 

Decl. Kris W. Kobach, Ex. 3 (“June 28 Letter”), ECF No. 21-2. The Commission purportedly 

sought this data “in order for the Commission to fully analyze vulnerabilities and issues related 

to voter registration and voting.” See June 28 Letter. The Commission requested that recipients 

respond to the letter by July 14, 2017 and directed recipients to submit their responses either via 

email or through a secure electronic file transfer protocol site that the federal government uses 

for transferring large data files. Compl. ¶ 31. 

The Commission’s request for voter data has become a subject of significant public 

debate. For example, voting rights experts have articulated a broad set of concerns about how 

the requests might be used to suppress voters and cybersecurity experts have identified risks 

inherent in consolidating sensitive voter data without a clear security plan. See Compl. ¶¶ 37–

38. These requests have also been the topic of several legal challenges. See Compl. ¶ 40. And 

the recipients of the letters have been far from unanimous in how they plan to respond. Indeed, 

as of September 27, 2017, seventeen states had indicated that they would provide the requested 

data while eight states had declined. Compl. ¶ 33. An additional eleven states had stated that 

they would only release data subject to certain restrictions. Compl. ¶ 33. 
5 

C. The Present Suit 

On September 29, 2017, Plaintiffs, United to Protect Democracy and The Protect 

Democracy Project, Inc., filed suit in this Court asserting that the Commission’s request for voter 

data constituted a violation of the PRA. According to Plaintiffs’ Complaint, the Commission 

violated the PRA when it failed to undertake the appropriate notice and comment procedures 

prior to issuing its request for voter data. See Compl. ¶¶ 60–76. As non-profit advocacy 

organizations engaged in public education and outreach, Plaintiffs claim that they have been 

injured by the Commission’s failing because they have been deprived of certain information that 

they claim the Commission was required to disclose pursuant to the terms of the PRA. Compl. 

¶ 73. Although Plaintiffs premise their claims on the text of the PRA, the PRA does not provide 

for a private right of action. Thus, Plaintiffs instead seek declaratory relief under 28 U.S.C. 

§§ 2201–02 and mandamus relief under 28 U.S.C. § 1361. See Compl. ¶¶ 60–76, 84–87. 

Plaintiffs’ Complaint also challenges the inaction on the part of the OMB and the 

Director of OMB (collectively the “OMB Defendants”). See Compl. ¶¶ 77–83. Under 44 U.S.C. 

§ 3517(b), “[a]ny person may request the Director [of OMB] to review any collection of 

information conducted by or for an agency to determine, if, under [the PRA], a person shall 

maintain, provide, or disclose the information to or for the agency.” The statute further directs 

that, “[u]nless the request is frivolous, the Director shall, in coordination with the agency 

responsible for the collection of information (1) respond to the request within 60 days after 

receiving the request, unless such period is extended by the Director to a specified date and the 

person making the request is given notice of such extension; and (2) take appropriate remedial 

action, if necessary.” 44 U.S.C. § 3517(b). On July 3, 2017, Plaintiff United to Protect 

Democracy allegedly sent a letter to the Director of OMB explaining the ways in which the 
6 

Commission had allegedly violated the PRA’s procedural requirements and, pursuant to § 3517, 

requested that the Director review the matter and take necessary remedial action as soon as 

possible. Compl. ¶ 80. Because more than 60 days have elapsed since United to Protect 

Democracy sent its letter and the Director has neither responded nor taken any other remedial 

action, Plaintiffs seek declaratory and injunctive relief against the OMB and its Director under 

section 706(1) of the APA for unlawfully withholding or unreasonably delaying action on its 

request. See Compl. ¶¶ 77–87. 

Two motions are now pending before the Court. First, on October 11, 2017, Plaintiffs 

filed a Motion for a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil 

Procedure. See Pls.’ Mot. Prelim. Inj. Plaintiffs request that this Court issue a preliminary 

injunction requiring that (1) the Commission cease its collection of data and delete and/or 

sequester any information collected unless and until it satisfies the procedures prescribed by the 

PRA; and (2) the Director of OMB to review the Commission’s alleged violation of the PRA and 

take appropriate remedial action to cure that violation. See Pls.’ Mot. Prelim. Inj. Defendants 

opposed the motion and simultaneously filed their own motion to dismiss the action on various 

grounds. See Defs.’ Mem. Opp’n Pls.’ Mot. Prelim. Inj. & Defs.’ Mot. Dismiss (“Defs.’ MTD”), 

ECF No. 21. Both motions have been fully briefed by the parties and are now ripe for decision. 

III. ANALYSIS 

Before the Court can reach Plaintiffs’ Motion for Preliminary Injunction, Plaintiffs must 

first overcome two fundamental obstacles presented by Defendants’ Motion to Dismiss. First, 

Plaintiffs must demonstrate that they have somehow been injured by Defendants’ actions and 

that they have standing to bring this suit at all. The Court is satisfied that Plaintiffs have met this 

burden, having alleged that they have been deprived of certain information that works a 
7 

particularized and concrete harm upon them. Next, Plaintiffs must allege facts from which this 

Court can determine that the Commission is actually subject to the PRA’s requirements, as the 

Plaintiffs claim. On this second obstacle, however, Plaintiffs stumble. The PRA applies only to 

“agencies,” as it defines that term. Based on the current state of the record, the Court cannot find 

that the Commission is an “agency” for purposes of the PRA because the pleadings and other 

evidence provided to the Court support the notion that the Commission works solely to advise 

and assist the President and there has been no allegation or other showing that the Commission 

has any substantial authority independent of the President. Accordingly, the Court cannot find 

that the Commission is subject to the terms of the PRA and thus Plaintiffs’ claims—all of which 

are based on this premise—must be dismissed. 

A. Standing 

The Court must first begin with the threshold question of whether Plaintiffs have 

constitutional standing to assert their claims at all. Article III of the United States Constitution 

grants the Judiciary authority to adjudicate only “Cases” and “Controversies.” U.S. Const. Art. 

III. One of the hallmarks of the “‘Case[s]’” and ‘Controversies’ that are of the justiciable sort 

referred to in Article III . . . is the doctrine of standing.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 

560 (1992). Indeed, “the requirement that a claimant have ‘standing is an essential and 

unchanging part of the case-or-controversy requirement of Article III.’” Davis v. FEC, 554 U.S. 

724, 733 (2008). 

This “irreducible constitutional minimum of standing contains three elements.” Lujan, 

504 U.S. at 560. First, plaintiffs must demonstrate that they have suffered an “injury in fact,” 

meaning the “actual or imminent” invasion of a legally protected interest that is both “concrete 

and particularized.” Id. Second, they must show a causal connection between the injury and the 
8 

challenged conduct such that the injury is fairly connected to the challenged conduct. Id. Third, 

they must make a showing that it is “likely,” rather than “speculative,” that the injury will be 

“redressed by a favorable decision.” Id. at 561. The “burden of establishing these elements falls 

on the party invoking federal jurisdiction, and at the pleading stage, a plaintiff must allege facts 

demonstrating each element.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) 

(citing Lujan, 504 U.S. at 561) (hereinafter, “Friends of Animals II”). In this case, only the first 

element—injury in fact—is in doubt. 

Plaintiffs’ sole contention on the issue of injury in fact is premised on a purported 

informational injury. Pls.’ Mot. Prelim. Inj. at 16–20. Informational injuries arise “only in very 

specific statutory contexts.” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 (D.C. Cir. 

1994). In FEC v. Akins, the Supreme Court explained that a plaintiff “suffers an ‘injury in fact’ 

when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a 

statute.” FEC v. Akins, 524 U.S. 11, 21 (1998). For example, in that case, the Court held that 

plaintiffs had suffered an informational injury because they had been denied certain information 

that was subject to disclosure under their interpretation of the Federal Election Campaign Act 

(“FECA”). See id. Likewise, in Public Citizen v. U.S. Department of Justice, the Supreme Court 

held that a purported advisory committee’s refusal to disclose certain records, reports, and 

meeting minutes, which plaintiffs claimed were subject to disclosure under the Federal Advisory 

Committee Act (“FACA”), “constitute[d] a sufficiently distinct injury to provide standing to 

sue.” Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989). 

The courts in this Circuit have found cognizable informational injuries in several 

additional statutory contexts. For example, courts have found such injuries based on provisions 

of the Emergency Planning and Community Right-to-Know Act, see Waterkeeper All. v. Envtl. 
9 

Prot. Agency, 853 F.3d 527, 534 (D.C. Cir. 2017), and the Endangered Species Act, see Friends 

of Animals v. Jewell, 824 F.3d 1033, 1042 (D.C. Cir. 2016). No case, however, has found a 

plaintiff to have suffered an informational injury based on a claim under the PRA. To assess 

whether such a claim might exist, the Circuit has advised that a “plaintiff suffers sufficiently 

concrete and particularized informational injury where the plaintiff alleges that: (1) it has been 

deprived of information that, on its interpretation, a statute requires the government or a third 

party to disclose to it, and (2) it suffers by being denied access to that information, the type of 

harm Congress sought to prevent by requiring disclosure.” Friends of Animals II, 828 F.3d at 

992. In this case, Plaintiffs meet both elements necessary to show informational injury. 

First, under the Plaintiffs’ interpretation of the PRA, the Commission was required to 

disclose certain information prior to issuing its request for voter data and materials, but it failed 

to do so. Section 3507(a)(1)(D)(ii) of the PRA states, in unequivocal terms, that an agency 

“shall not conduct or sponsor the collection of information unless in advance . . . of the collection 

of information the agency has . . . published notice in the Federal Register . . . setting forth a title 

for the collection of information; a summary of the collection of information; a brief description 

of the need for the information and the proposed use of the information; a description of the 

likely respondents and proposed frequency of response to the collection of information; an 

estimate of the burden that shall result from the collection of information . . . .”1 44 U.S.C. 

§ 3507(a)(1)(D). If, as Plaintiffs contend, the Commission constitutes an “agency” and its 

requests for voter data constituted a “collection of information,” as those terms are defined under 

 1

 Plaintiffs also argue that a disclosure requirement can be inferred from two provisions 

found in 44 U.S.C. § 3506. Nevertheless, because the materials that Plaintiffs allege must be 

disclosed under that provision are substantially the same as what is explicitly required under 

§ 3507(a), the Court finds it sufficient to limit its discussion to § 3507(a).
10 

the statute, then the Commission would have had a statutory obligation to disclose this 

information prior to making its requests. It is undisputed, however, that the Commission made 

no such disclosures. Thus, plaintiffs have made a sufficient showing that they have been 

deprived of information that, under their interpretation of the law, they were entitled to obtain. 

This is sufficient to satisfy the first prong of the informational injury inquiry.2

 

The Court thus turns to the second prong of the test—whether denial of information 

caused Plaintiffs to suffer the type of harm that Congress sought to prevent by requiring 

disclosure. The D.C. Circuit has explained that “the second part of the [informational injury] 

inquiry may depend on the nature of the statutory disclosure provision at issue.” Friends of 

Animals II, 828 F.3d at 992. “In some instances, a plaintiff suffers the type of harm Congress 

sought to remedy when it simply ‘s[eeks] and [is] denied specific agency records.’” Id. (quoting 

Pub. Citizen, 491 U.S. at 449–50). This is the case when, for example, a government agency 

 2

 As the D.C. Circuit has recognized, a plaintiff need only “espouse a view of the law

under which the defendant (or an entity it regulates) is obligated to disclose certain information 

that the plaintiff has a right to obtain.” Am. Soc. for Prevention of Cruelty to Animals v. Feld 

Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (emphasis added). That view, however, need not 

necessarily be the correct view of the law in order to find the existence of standing under a 

theory of informational injury. For example, in Akins, the plaintiffs in that case challenged the 

Federal Election Commission’s determination that the American Israel Public Affairs Committee 

(“AIPAC”) was not a “political committee” for purposes of the FECA and, consequently, that it 

did not have to disclose information concerning its donors and contributions. See Akins, 524 

U.S. at 13. Plaintiffs challenged that legal determination and argued that AIPAC was both a 

political committee and subject to the law’s disclosure requirements concerning its donors and 

contributions. See id. at 21. The Supreme Court held that plaintiffs in that case had standing to 

challenge the agency’s interpretation, but did not actually resolve the predicate question of 

whether the AIPAC was, in fact, a political committee. See id. Rather, the Court was able to 

find an injury in fact consisting of plaintiffs’ inability to obtain information based purely on their 

“view of the law” which would require the disclosure plaintiffs sought. See id. Thus, even 

though the Plaintiffs in this case have espoused a view sufficient to find an informational injury, 

that view is not necessarily the correct view of the law. And, in fact, as described in greater 

detail infra, the Court finds Plaintiffs’ view is not correct because the Commission does not 

constitute an “agency” for purposes of the PRA. 
11 

denies a request under the Freedom of Information Act (“FOIA”). See Pub. Citizen, 491 U.S. at 

449–50. However, in other contexts, “a plaintiff may need to allege that nondisclosure has 

caused it to suffer the kind of harm from which Congress, in mandating disclosure, sought to 

protect individuals or organizations like it.” Friends of Animals II, 828 F.3d at 992. For 

example, in Nader v. FEC, the D.C. Circuit noted that litigants can have informational standing 

under the FECA “if the disclosure they seek is related to their informed participation in the 

political process.” Nader v. FEC, 725 F.3d 226, 230 (D.C. Cir. 2013). But in Nader, the 

plaintiff sought disclosure of information “in the hope of showing that [certain lawyers and law 

firms] violated prohibitions on ‘contributions’ and ‘expenditures’ found in [the FECA].” Id. 

Because the plaintiff did “not seek information to facilitate his informed participation in the 

political process,” but instead to “force the FEC to get the bad guys,” the Court found that he did 

not have standing to bring his claim under a theory of informational injury. Id (internal 

quotations omitted). 

Under the facts alleged here, the Court is persuaded that Plaintiffs have suffered the type 

of harm that Congress sought to prevent by requiring disclosure. In passing the PRA, Congress 

enumerated nearly a dozen purposes that it was meant to serve. Two are of particular relevance 

here. First, Congress sought to “improve the quality and use of Federal information to 

strengthen . . . openness in Government and society.” 44 U.S.C. § 3501(4) (emphasis added). 

Second, Congress sought to “improve the responsibility and accountability of the [OMB] and all 

other Federal agencies to Congress and to the public for implementing the information collection 

review process, information resources management, and related policies and guidelines 

established under [the PRA].” 44 U.S.C. § 3501(11) (emphasis added). These statements evince 
12 

Congress’s clear intent that information concerning the government’s data collection efforts be 

shared with the public so that the public might hold the government to account. 

Plaintiffs are non-profit organizations that use advocacy, research, and public education 

to confront perceived threats to democracy. Compl. ¶¶ 7–8. These are activities in which 

Plaintiffs devote substantial resources and have spent substantial resources in connection with 

the work of the Commission. Compl. ¶ 73. Plaintiffs also allege that the information that the 

PRA supposedly required the Commission to disclose “would have facilitated Plaintiffs’ 

mission.” Compl. ¶ 73. Indeed, they claim that “[h]ad [they] received the information to which 

they were entitled, they would have sought to educate the public on the implications of that 

information, and would have organized their own advocacy strategies to respond appropriately to 

those disclosures.” Compl ¶ 73. Accordingly, the Court is convinced that Plaintiffs have 

suffered the same injury meant to be prevented under the statute.3

 See Friends of Animals I, 824 

F.3d 1033, 1041 (D.C. Cir. 2016) (holding that “there is no reason to doubt [plaintiff’s] 

[informational] standing” when it claimed that “information provided by Section 10(c) [of the 

 3

 In a related case, Electronic Privacy Information Center. v. Presidential Advisory 

Commission, the D.C. Circuit recently held that an advocacy organization did not have 

informational standing to challenge the Commission’s purported violation of the E-Government 

Act because that statute was intended only to protect individual privacy, which was not at issue 

for the organization. See Elec. Privacy Info. Ctr. v. Presidential Advisory Commission, No. 17-

5171, 2017 WL 6564621 at *4 (D.C. Cir. Dec. 26, 2017). In this case, the Court does not believe 

that the purpose of the PRA is limited in quite this same way. The text of the statute itself 

demonstrates that the PRA was not solely limited to protecting individuals. See 44 U.S.C. § 

3501(a) (one of the purposes of the PRA includes “minimiz[ing] the paperwork burden of 

individuals, small businesses, educational and nonprofit institutions, Federal Contractors, State, 

local and tribal governments, and other persons resulting from the collection of information by or 

for the Federal Government”). Nor is there any reason to believe that only individuals may be 

harmed by a deprivation of information when the PRA speaks in terms of “openness in 

Government and society” and improving responsibility and accountability “to the public.” See 

id. at §§ 3501(4), (11). 
13 

Endangered Species Act] helps it meaningfully participate in the Act’s permitting process, as 

well as engage in related advocacy efforts to protect [certain animals]”). 

Defendants argue, however, that Plaintiffs purported injury is not an informational injury, 

rather it is, if anything, an infringement of a bare procedural right, which is not sufficient to 

confer standing. See Defs.’ MTD at 13–14; Defs.’ Reply at 6–8, ECF No. 28. The seminal case 

on this issue is the Supreme Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488 

(2009). In that case, environmental organizations brought action seeking to enjoin the U.S. 

Forest Service from exempting certain agency decisions from the notice, comment, and appeals 

process used for significant land management decisions. See id. at 490. Plaintiffs argued that 

they had standing “because they ha[d] suffered procedural injury, namely, that they ha[d] been 

denied the ability to file comments on some Forest Service actions and will continue to be so 

denied.” Id. at 496. But the Court held that “deprivation of a procedural right without some 

concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient 

to create Article III standing.” Id. That is, “[o]nly a ‘person who has been accorded a procedural 

right to protect his concrete interests can assert that right without meeting all the normal 

standards for redressability and immediacy.” Id. (emphasis in original) (quoting Defenders of 

Wildlife, 504 U.S. at 572, n.7). Plaintiffs in that suit, however, were not “claiming that but for 

the allegedly unlawful abridged procedures they would have been able to oppose [a] project that 

threatened to impinge on their concrete plans to observe nature in [a] specific area.” Id. at 497. 

Because the plaintiffs had failed to connect any concrete injury underlying a particular project 

for which they were unable to comment, the Court held that plaintiffs lacked standing. Id 

 Here, Defendants focus on the fact that the particular disclosures at issue are related to 

the PRA’s notice and comment procedures. See Defs.’ MTD at 13–14; Defs.’ Reply at 6–8. For 
14 

this reason, Defendants contend that Plaintiffs’ injury is necessarily a procedural one like that in 

Summers, rather than an informational injury. See Defs.’ MTD at 13–14; Defs.’ Reply at 6–8. 

While this argument certainly carries some facial appeal, the Court is ultimately unpersuaded. 

Nothing in Summers prohibits a finding of informational injury merely because the statute 

conferring the right to information also happens to be associated with the statute’s notice and 

comment procedures. In Summers, the sole injury alleged by plaintiffs was the deprivation of a 

right to comment in a proceeding. See Summers, 555 U.S. at 456. While the Plaintiffs here 

might also share that pure procedural injury, they are also uniquely and concretely harmed by the 

deprivation of information to which they are allegedly entitled under the PRA. Such an injury 

was not present in Summers. 

Furthermore, the case law of this Circuit simply does not support Defendants’ position.4

 

Indeed, the D.C. Circuit has held on multiple occasions that litigants have adequately alleged 

informational injuries based solely on notice statutes. For example, in Ethyl Corp. v. EPA, the 

D.C. Circuit considered a challenge to an EPA rule that allowed automobile manufacturers to 

establish their own emissions test procedures and methods, which the EPA would then evaluate 

 4

 Defendants rely principally on the Ninth Circuit opinion, Wilderness Society, Inc. v. 

Rey, 622 F.3d 1251 (9th Cir. 2010). That case addressed whether a plaintiff could assert 

informational standing based on the notice provision of the Appeals Reform Act (“ARA”)—the 

same statute that was at issue in Summers. The Ninth Circuit held that plaintiffs could not allege 

a cognizable informational injury under the ARA because “Congress’s purpose in mandating 

notice in the context of the ARA was not to disclose information, but rather to allow the public 

opportunity to comment on the proposals.” Id. at 1259 (emphasis added). Contrary to 

Defendant’s intimations, this case does not stand for the broad proposition that there can never

exist a right to information if that right is conferred by a statute setting forth notice and comment 

procedures. As its language suggests, the case addressed only the particular circumstances 

underlying the ARA. The present suit, of course, does not concern the ARA and, as described 

above, the Court is satisfied that at least part of PRA’s purpose was to disclose information to the 

public. Moreover, the case law in the D.C. Circuit has found informational injuries based on 

notice statutes on multiple occasions, which critically undermines Defendants’ absolutist 

position. 
15 

and approve in individual, closed proceedings. Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir. 

2002). The plaintiff argued that this was a violation of the Clean Air Act, which required the 

EPA to establish emissions tests by regulation pursuant to typical notice and comment 

procedures. Id. at 1146. The closed-door procedure at issue allegedly harmed the plaintiff 

“because the mechanism adopted by the EPA deprive[d] it of the opportunity to observe the 

rulemaking process and thus gain information useful in its efforts both to develop and improve 

its products and to key them to the certification tests.” Id. Based on this informational 

deprivation, the D.C. Circuit found the plaintiff’s Article III standing to be “clear.” Id. at 1148. 

Moreover, the D.C. Circuit has continued to find informational standing predicated on 

notice statutes even after Summers was decided. Indeed, just last year, the Circuit found 

informational standing under circumstances very similar to those presented at bar. In Friends of 

Animals I, the D.C. Circuit held that a non-profit organization had standing under § 10(c) of the 

Endangered Species Act. See Friends of Animals I, 824 F.3d at 1041. That provision provides, 

in relevant part: 

The Secretary shall publish notice in the Federal Register of each application for an 

exemption or permit which is made under this section. Each notice shall invite the 

submission from interested parties within thirty days after the date of the notice, of 

written data, views, or arguments with respect to the application . . . . Information 

received by the Secretary as part of any application shall be available to the public as a 

matter of public record at every stage of the proceeding.” 

Id. (quoting 16 U.S.C. § 1539(c)) (emphasis omitted). While the statute plainly requires the 

release of information as part of notice and comment procedures, the Court found that this 

provision “clearly creates a right to information upon which a claim of informational standing 

may be predicated.” Id. The Court observed that the plaintiff in that case “regularly

participate[d]” in the permitting process and had claimed that the “information provided by 

Section 10(c) helps it meaningfully participate in the Act’s permitting process, as well as engage 
16 

in related advocacy efforts to protect [certain] antelope species.” Id. Accordingly, the Court had 

“no reason to doubt” its informational standing. 

 Here, like Ethyl Corp and Friends of Animals I, Plaintiffs’ right to information may be 

based on a statute tied to notice and comment procedures, but they have sufficiently alleged that 

the deprivation of that particular information has caused them particularized and concrete injury 

in fact. Based on the foregoing, the Court is satisfied that, at this stage in the proceedings, 

Plaintiffs have adequately alleged a concrete and particularized informational injury. 

Consequently, the Court finds that Plaintiffs have standing to bring their claims. 

B. Defendants’ Motion to Dismiss 

Although the Court finds that Plaintiffs have demonstrated standing, their claims 

ultimately do not withstand scrutiny under a motion to dismiss. The Federal Rules of Civil 

Procedure require that a complaint contain “a short and plain statement of the claim” in order to 

give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 

8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss 

under Rule 12(b)(6) does not test a plaintiff’s ultimate likelihood of success on the merits; rather, 

it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). A court 

considering such a motion presumes that the complaint’s factual allegations are true and 

construes them liberally in the plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc., 

116 F. Supp. 2d 131, 135 (D.D.C. 2000). Nevertheless, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff’s factual allegations “must be 
17 

enough to raise a right to relief above the speculative level, on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 

(citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 

U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a 

court presume the veracity of the legal conclusions that are couched as factual allegations. See 

Twombly, 550 U.S. at 555. Under this standard, Plaintiffs fail to state a claim against either the 

Commission or the OMB Defendants. 

1. Claims against the Commission 

The PRA does not provide for a private cause of action and, consequently, Plaintiffs seek 

relief from the Commission’s actions under the Mandamus Act, 28 U.S.C. § 1361. 

“[C]onsideration of any mandamus petition ‘starts from the premise that issuance of the writ is 

an extraordinary remedy, reserved only for the most transparent violations of a clear duty to 

act.’” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting In re Bluewater 

Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000)); accord Power v. Barnhart, 292 F.3d 781, 784 

(D.C. Cir. 2002) (“The remedy of mandamus is a drastic one, to be invoked only in extraordinary 

circumstances.” (internal quotation marks omitted)). “To show entitlement to mandamus, 

plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government 

agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy 

exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016) (citing United States v. 

Monzel, 641 F.3d 528, 534 (D.C. Cir. 2011)). “These three threshold requirements are 

jurisdictional; unless all are met, a court must dismiss the case for lack of jurisdiction.” Id. 

(citing In re Medicare Reimbursement Litigation, 414 F.3d 7, 10 (D.C. Cir. 2005)). But, “[e]ven 
18 

when the legal requirements for mandamus jurisdiction have been satisfied, however, a court 

may grant relief only when it finds compelling equitable grounds.” Id. “The party seeking 

mandamus has the burden of showing that its right to issuance of the writ is clear and 

indisputable.” Power, 292 F.3d at 784 (internal quotation marks omitted). 

The critical question for Plaintiffs’ claims is whether, in fact, the PRA applies to the 

Commission. If not, then the Commission cannot be found to have violated a “clear duty to act” 

and Plaintiffs’ claim must necessarily be dismissed. 

By its terms, the PRA only applies when an “agency” conducts or sponsors the collection 

of information. See 44 U.S.C. § 3507(a). With the exception of certain enumerated exclusions 

not applicable here, the PRA defines the term “agency” to mean “any executive department, 

military department, Government corporation, Government controlled corporation, or other 

establishment in the executive branch of the Government (including the Executive Office of the 

President), or any independent regulatory agency.” 44 U.S.C. § 3502(1). The Commission quite 

clearly does not fall into most of these categories. Indeed, it is readily apparent that the 

Commission is not one of the fifteen executive departments, see 5 U.S.C. § 101, any of the three 

military departments, see 5 U.S.C. § 102, does not fall within the definitions of “Government 

corporation” or “Government controlled corporation” see 5 U.S.C. § 103, and is not one of 

several enumerated “independent regulatory agenc[ies],” see 44 U.S.C. § 3502(5). Accordingly, 

whether the Commission constitutes an “agency” for purposes of the PRA will necessarily turn 

on whether it falls within the PRA’s catchall category of “other establishment[s] in the executive 

branch of the Government (including the Executive Office of the President).” 

The parties fundamentally disagree, however, about whether or not the Commission 

actually falls within that group. Notably, the PRA does not specify what that category includes 
19 

or excludes and no court has previously addressed whether the PRA may be interpreted to reach 

entities such as the Commission. Nevertheless, Plaintiffs argue that the text and purpose of the 

PRA suggest that the Commission should be considered an “agency” under the PRA. See Pls.’ 

Mot. Prelim. Inj. at 21. Plaintiffs contend that the Commission is most certainly an 

establishment in the executive branch given that the Commission was established by Executive 

Order, is chaired by the Vice President, and is charged with producing a report for the President 

himself. See Pls.’ Mot. Prelim. Inj. at 21. Plaintiffs also contend that the PRA’s definition of 

agency should be viewed broadly given that Congress’s overarching purpose in enacting the 

PRA was to reign in government collection activities, which the PRA sought to accomplish in 

part by extending its applicability to more agencies than its predecessor statute, the Federal 

Reports Act of 1942. See Pls.’ Mot. Prelim. Inj. at 21–22. Defendants, on the other hand, point 

out that the PRA’s definition of “agency” is nearly identical to the definition of “agency” under 

FOIA. Defs.’ MTD at 17. For this reason, Defendants urge that the terms should be interpreted 

coextensively. Because FOIA has been interpreted not to include staff and units that serve solely 

to advise the President, Defendants argue that this limitation should apply equally to the PRA. 

The Court finds that Defendants have the better of the arguments. 

“There is a presumption that Congress uses the same term consistently in different 

statutes.” Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 857 (D.C. Cir. 2006). Indeed, 

the Supreme Court has held that when two statutes contain the same language, it is a “strong 

indication” that they “should be interpreted pari passu,” that is, on equal footing. Northcross v. 

Bd. of Ed. of Memphis City Sch., 412 U.S. 427, 428 (1973) (per curiam). Thus, under 

circumstances where statutes parallel one another, ordinarily a “common term should be 

construed consistently under each statute.” Nat’l Treasury Emps. Union, 452 F.3d at 858; see 
20 

also Kooritzky v. Herman, 178 F.3d 1315, 1319–20 (D.C. Cir. 1999) (explaining that similar 

language in different statutes is a strong indication that the language should be interpreted alike). 

In this case, the definitions of “agency” under the PRA parallels the definition of that term under 

FOIA. Indeed, under FOIA, the term “agency” “includes any executive department, military 

department, Government corporation, Government controlled corporation, or other establishment 

in the executive branch of the Government (including the Executive Office of the President), or 

any independent regulatory agency.” 5 U.S.C. § 552(f). Given the parallel nature of the FOIA’s 

and the PRA’s definitions of “agency,” they are most naturally understood to be coextensive. 

Reading the PRA consistently with FOIA sheds light on the otherwise undefined contours 

of the term “other establishment in the executive branch of the Government (including the 

Executive Office of the President).” Indeed, it is well settled that, while the text itself does not 

admit of any limitations, it does not extend to “the President’s immediate personal staff or units 

in the Executive Office [of the President] whose sole function it is to advise and assist the 

President.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980). 

Significantly, this “advise and assist” limitation was the settled law at the time the PRA was 

enacted. The Supreme Court has advised that “when judicial interpretations have settled the 

meaning of an existing statutory provision, repetition of the same language in a new statute 

indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well.” 

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006) (alteration in 

original, internal citations and quotation marks omitted). Thus, there is added force to the 

argument that Congress intended the “advise and assist” limitation to apply equally to the PRA 

when it invoked the FOIA’s definition of “agency.” 
21 

Plaintiffs attempt to resist this conclusion by seizing on a single distinction between the 

PRA’s definition of “agency” and FOIA’s definition of that term. Specifically, Plaintiffs point 

out that FOIA’s definition cross-references 5 U.S.C. § 551(1), which is the Administrative 

Procedure Act’s (“APA’s”) definition of “agency.” See Pls.’ Opp’n at 19. According to 

Plaintiffs, this additional reference means that “agency” under the PRA should not be read 

coextensively with the definition under FOIA, despite all other language being equal. To fully 

comprehend Plaintiffs’ argument, one must first understand the history and relation between 

FOIA and the APA. 

In 1966, Congress enacted FOIA as an amendment to the APA. See Pub. L. 89-487, 80 

Stat. 250 (1966). At that time, FOIA did not specify its own definition of “agency,” but instead 

relied upon the APA’s definition, which was codified at 5 U.S.C. § 551(1). Under the APA’s 

definition, which remains unchanged today, an “agency” is “each authority of the Government of 

the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 

551(1). In 1971, the D.C. Circuit issued an opinion in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 

1971), which held that this definition extended only to those administrative units “with 

substantial independent authority in the exercise of specific functions.” Id. at 1073. Thus, 

organizations whose “sole function[s] were to advise and assist the President . . . [are] part of the 

President’s staff and not [] separate agenc[ies].” Id. at 1075. Then, in 1974, Congress amended 

FOIA to expand its definition of “agency” without expanding the overall definition of the term 

under the APA. See Pub. L. No. 93–502, 88 Stat. 1561 (1974). That amendment clarified that, 

for purposes of FOIA, an “‘agency’ as defined in section 551(1)” of the APA “includes any 

executive department, military department, Government corporation, Government controlled 
22 

corporation, or other establishment in the executive branch of the Government (including the 

Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f). 

While Plaintiffs concede, as they must, that the definition of agency under the PRA is 

nearly identical to this amendment, Plaintiffs focus on the fact that the FOIA amendment, unlike 

the PRA, cross-references the APA’s definition of “agency” under 5 U.S.C. § 551(1). This is 

critical, Plaintiffs contend, because FOIA’s “exemption for units in the Executive Office that 

‘advise and assist’ the President derives solely from” that provision. See Pls.’ Opp’n at 20, ECF 

No. 26. Unfortunately for Plaintiffs, this is simply not the case. While FOIA does reference the 

APA’s definition of agency under § 551(1) and the language of that provision is the source of the 

APA’s limitation on staff and units that advise the President, § 551(1) is not the source of FOIA’s 

limited applicability. Indeed, the limitation on FOIA’s definition of “agency” comes from how 

Congress intended the term “Executive Office of the President” to be interpreted under § 552(f) 

of FOIA. The Conference Report for the 1974 FOIA amendments indicates that “[w]ith respect 

to the meaning of the term ‘Executive Office of the President[,]’ the conferees intend the result 

reached in Soucie v. David . . . .” H.R. Conf. Rep. No. 93-1380, at 15 (1974). Thus, it made 

clear that “[t]he term [was] not to be interpreted as including the President’s immediate personal 

staff or units in the Executive Office whose sole function is to advise and assist the President.” 

Id. (emphasis added). As this history shows, FOIA’s limited applicability comes—not from any 

interpretation of § 551(1)—but from how Congress intended the term “Executive Office of the 

President” to be interpreted under § 552(f)—FOIA’s definition of “agency.”5

 This is confirmed 

 5

 Plaintiffs also argue that it would be “unnecessary and superfluous to understand the 

language of § 552(f) to incorporate the ‘advise and assist’ limitation, when the limitation was 

already present and operative for FOIA in § 551(1) at the time Congress passed § 552(f).” Pls.’ 

Opp’n at 21–22. The Plaintiffs are wrong on this score. The FOIA Amendments expressly 

expanded the definition of “agency” so that it would extend beyond the constraints imposed by 
23 

by the Supreme Court’s decision in Kissinger, which based its understanding of FOIA’s limited 

applicability on this very legislative history. See Kissinger, 445 U.S. at 156. Because the source 

of the “advise and assist” limitation under FOIA is derived from the term “Executive Office of 

the President,” a term that is shared by the PRA, Plaintiffs have failed to show why FOIA’s 

reference to § 551(1) requires the Court to reject the normal presumption that common terms in 

parallel provisions should be construed consistently.6 Based on the foregoing, the Court is 

 

§ 551(1). See H.R. Conf. Rep. No. 93-1380, at 14–15 (1974) (“The conferees state that they 

intend to include within the definition of ‘agency’ those entities encompassed by 5 U.S.C. 551 

and other entities, including [list of entities] . . . . Expansion of the definition of ‘agency’ in this 

subsection is intended to broaden applicability of the Freedom of Information Act . . . .”) 

(emphasis added). It would be illogical to understand § 552(f) as both broadening § 551(1)’s 

definition of “agency” while simultaneously being constrained by its restrictions. Indeed, the 

only logical understanding of FOIA’s “advise and assist” limitation is that it emanates from § 

552(f) itself. 

6

 Plaintiffs other arguments are also unavailing. First, Plaintiffs argue that “Congress 

knew how to indicate that a subsequent statute should follow both parts of FOIA’s definition, 

bud did not include an indication of that sort here.” Pls.’ Opp’n at 23. As evidence of their 

claim, they point to the Privacy Act, which incorporates FOIA’s definition of ‘agency’ by crossreference. See Pls.’ Opp’n at 23 (citing 5 U.S.C. § 552a). As an initial matter, the Court finds 

the Privacy Act’s use of a cross-reference rather unsurprising given that the APA, FOIA, and the 

Privacy Act all reside within Title 5 of the U.S. Code. The PRA, on the other hand, is found in 

Title 44. Nevertheless, there is no rule of construction suggesting that, absent a cross-reference, 

statutes with similar language must be interpreted differently. And the mere fact that Congress 

did not include a cross-reference in this instance does not seem to otherwise suggest that 

Congress perceived a difference between agencies for purposes of FOIA and the PRA when, in 

fact, Congress used the exact same words for both statutes. Plaintiffs also contend that Congress 

“did not indicate in any way that it intended to minimize burdens imposed on the public only by 

those segments of the federal government that wield substantial independent authority from the 

President.” Pls.’ Opp’n at 24. This is plainly incorrect. As discussed above, Congress adopted 

the same language that it had crafted for purposes of FOIA, which it had enacted only a few 

years earlier, and did so only after its terms had been settled by the Supreme Court. So, while 

Congress may not have explicitly stated its intentions as succinctly as Plaintiffs might like, the 

import of Congress’s actions is undeniable. Finally, Plaintiffs argue that a finding that the 

PRA’s definition of “agency” does not extend to the President’s advisors would somehow 

undermine the purpose of the PRA. See Pls.’ Opp’n at 23–24. But, Plaintiffs do not point to 

anything indicating that Congress intended the PRA to apply to every establishment in the 

Executive Branch without exception or that Congress specifically wanted the PRA to reach the 

President’s advisors. Thus, it is hard to understand how the Court’s finding in this regard 

necessarily does harm to the PRA’s broader purpose. Congress intended FOIA to apply broadly 
24 

convinced that the term “agency” under the PRA should be construed conterminously with that 

term under FOIA and that FOIA’s “advise and assist” limitation applies equally to the PRA. 

Having found that the definition of agency in the PRA is to be construed conterminously 

with the definition of “agency” found in FOIA, the Court must determine whether the 

Commission constitutes an agency under that definition. In the years since the Supreme Court’s 

decision in Kissinger, the D.C. Circuit has propounded various tests designed to answer the 

question of whether a unit within the Executive Office of the President (“EOP”) is subject to 

FOIA. See Citizens for Responsibility and Ethics in Washington v. Office of Administration, 566 

F.3d 219, 222 (D.C. Cir. 2009). But, “[h]owever the test has been stated, common to every case 

in which [the D.C. Circuit has] held that an EOP unit is subject to FOIA has been a finding that 

the entity in question ‘wielded substantial authority independently of the President.’” Id.

(quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995) (per curiam)). Likewise, the 

Court has “consistently refused to extend FOIA to an EOP unit that lacks substantial independent 

authority.” Id. at 223. Consequently, the Court finds that this is the same inquiry that should 

control whether or not the Commission constitutes an “agency” for purposes of the PRA. 

Based on the present record and the relevant case law, the Court cannot conclude that the 

Commission constitutes an “agency” for purposes of the PRA. The Executive Order at issue 

indicates that the Commission is purely advisory in nature and that it shall disband shortly after it 

delivers a report to the President. Moreover, the Order does not grant the Commission any 

authority independent of the President and there is no evidence that it has ever exercised any 

such authority. The Commission’s request for information from state officials is not a command 

 

but, similarly, was not troubled that not applying it to the President’s advisors would undermine 

its purpose. 
25 

for information that state officials must obey and there is no evidence that the Commission has 

sought to compel compliance by any means. This Court finds that these considerations lead to 

the inescapable conclusion that the Commission is not an “agency” for purposes of the PRA.7 

Plaintiffs allege no additional facts in their complaint or provide any other information 

that would otherwise persuade this Court to reach a different result. Indeed, Plaintiffs all but 

concede this point, having made no argument that the Commission in fact exercises any authority 

independent of the President. Because the Court cannot conclude that the Commission is an 

“agency” for purposes of the PRA, it also cannot find that the Commission was under any “clear 

duty to act” in accordance with the PRA’s mandates. Without the showing of such a duty, 

Plaintiffs’ claims for mandamus relief must necessarily be dismissed. See, e.g., Baptist Mem’l 

Hosp. v. Sebelius, 603 F.3d 57, 63 (D.C. Cir. 2010) (affirming dismissal of mandamus action 

because, among other reasons, the statute at issue “cannot provide the ‘clear duty to act’ 

necessary to sustain the hospitals’ requests for mandamus relief.”). Likewise, Plaintiffs cannot 

sustain a claim for declaratory relief, so those claims must be dismissed as well.

 7

 This conclusion is in accord with how the Court of Appeals has addressed similar 

bodies that advise the President in the FOIA context. See Rushforth v. Council of Economic 

Advisors, 762 F.2d 1038, 1042–43 (D.C. Cir. 1985) (holding that Council of Economic 

Advisors’ “sole function is to advise and assist the President” and “should not be considered an 

agency for purposes of the FOIA” because it “has no regulatory power,” “it cannot fund 

projects,” “nor can it issue regulations”); Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993) 

(holding that President’s Task Force on Regulatory Relief was not an agency under FOIA 

because it lacked substantial authority independent of the President to “direct executive branch 

officials”); Armstrong v. Executive Office of the President, 90 F.3d 553, 565 (D.C. Cir. 1996) 

(holding that National Security Council “is not an agency subject to the FOIA” because it plays 

no “substantive role apart from that of the President, as opposed to a coordinating role on behalf 

of the President”). 
26 

2. Claims against the OMB Defendants 

Plaintiffs’ claims against the OMB fare no better than their claims against the 

Commission. Indeed, the same finding that the Commission is not an agency pursuant to the 

PRA necessarily dooms these claims too. Plaintiffs’ claims against the OMB Defendants rely 

upon 44 U.S.C. § 3517(b), which states that “[a]ny person may request the Director to review 

any collection of information conducted by or for an agency to determine if, under this 

subchapter, a person shall maintain, provide, or disclose the information to or for the agency.” 

(emphasis added). Unless the request is frivolous, the Director of OMB is typically required to 

respond to such a request within 60 days and to take any appropriate remedial actions if 

necessary. See id. at § 3517(b). Plaintiffs allege that they submitted a request to the Director of 

OMB to review the Commission’s requests for voter data, but that the Director of OMB has, to 

this day, taken no action. Pls.’ Opp’n at 28–29. 

Plaintiffs bring suit against the OMB Defendants pursuant to § 706(1) of the APA and 

also seek judgment pursuant to 28 U.S.C. §§ 2201–02 declaring that the OMB Defendants have 

violated the APA. See Compl. ¶¶ 77–83, 86–87. Under § 706(1) of the APA, courts can compel 

an agency “to take a discrete agency action that it is required to take.” Norton v. S. Utah 

Wilderness Alliance, 542 U.S. 55, 64 (2004). This requires, however, that “a federal agency has 

a ‘ministerial or non-discretionary’ duty amounting to ‘a specific, unequivocal command.’” 

Anglers Conservation Network v. Pritzker, 809 F.3d 664, 670 (D.C. Cir. 2016) (quoting Norton, 

542 U.S. at 63–64). Plaintiffs’ claim against the OMB Defendants must fail because the PRA 

only requires the Director to take action when requested to review a collection of information 

conducted “by or for [an] agency,” as defined under the PRA. Because the Court has already 

concluded that Plaintiffs have not met their burden to show that the Commission satisfies that 
27 

definition, they have also necessarily failed to show that the OMB Defendants were under any 

obligation to take any action under the statute.8

 Accordingly, Plaintiffs’ APA and declaratory 

judgment claims against the OMB Defendants must be dismissed. 

IV. CONCLUSION 

Because the Court finds that it is appropriate to grant Defendants’ motion to dismiss, 

there is therefore no need to reach Plaintiffs’ Motion for Preliminary Injunction. Accordingly, 

for the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss (ECF No. 22) and

DENIES AS MOOT Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 10). The Court 

also DENIES AS MOOT Plaintiffs’ Motion for Leave to File a Declaration in support of its 

Motion for Preliminary Injunction (ECF No. 24). As discussed above, the basis for the Court’s 

decision is that Plaintiffs have failed to adequately allege or otherwise show that the Commission 

constitutes an “agency” subject to the PRA. Plaintiffs have requested that, in the event that the 

Court makes just such a finding, that it be granted leave to file an amended complaint to 

demonstrate the reasons why the Commission meets the standard that the Court adopts today. 

See Pls.’ Opp’n at 21, n.6. Plaintiffs also note that this very question is pending in parallel 

litigation in this Circuit. See Pls.’ Opp’n at 21, n.6. Based on these representations, the Court is 

satisfied that leave should be given. Accordingly, the Court will GRANT Plaintiffs request for 

leave to amend their Complaint orders that they file their amended complaint within 30 days. An 

order consistent with this Memorandum Opinion is separately and contemporaneously issued. 

Dated: December 29, 2017 RUDOLPH CONTRERAS 

 United States District Judge 

 8

 Because the Court resolves the claims against the OMB Defendants on the basis that 

Plaintiffs have not shown the Commission to be an “agency,” the Court need not resolve 

Defendants’ additional grounds for dismissal.