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73aab3b2-5824-4e7f-9816-8511983b55f9 | appropriate only when the nature of the work is sporadic and unpredictable so that a tour of duty
cannot be regularly scheduled in advance.” Pl.’s Mem. at 18 (quoting 5 C.F.R. § 340.403(a)).
This regulation explicitly distinguishes “intermittent” status from “part-time” status, as it says
that “[w]hen an agency is able to schedule work in advance on a regular basis, it has an | Electronic_Privacy_Information_2020-06-01.txt |
9ca35ccf-22eb-40ad-8424-1cb1c3132382 | obligation to document the change in work schedule from intermittent to part-time or full-time to
ensure proper service credit.” 5 C.F.R. § 340.403(a).
The Court agrees with EPIC that “intermittent” accurately describes the employment
status of the Commission’s members. All the members have day jobs, the Commission “meets | Electronic_Privacy_Information_2020-06-01.txt |
46b1deb6-d926-4ff1-829e-4261ce91547b | in plenary every other month,” and “each working group meets monthly.” See Compl. , 48
(cleaned up); Answer , 48, ECF No. 29. For example, the Commission met on March 11,
May 20, and July 11 of 2019. See Compl. , 67, 69; Answer , 67, 69. This limited and
irregular work schedule fits the bill as “sporadic and unpredictable.” 5 C.F.R. § 340.403(a). | Electronic_Privacy_Information_2020-06-01.txt |
a73b15c9-18bc-4103-a8f0-0e2e3bf4bda3 | The Government does not dispute that § 340.403 is relevant to the meaning of “part-
time” versus “intermittent.” Indeed, it provides no affirmative argument for why the
Commission’s members are “part-time.” See Defs.’ Mem. at 21–22; Defs.’ Reply at 16–17.11 | Electronic_Privacy_Information_2020-06-01.txt |
089108b3-1fd6-468e-b81f-6dae14549b76 | 11 EPIC claims the Government’s Answer conceded that “the members of the AI Commission
are employed on an ‘intermittent’ basis.” Compl. (quoting 5 C.F.R. § 340.403); see Pl.’s
Mem. at 18. The Government disagrees. Defs.’ Reply at 16–17. The Court need not resolve
this, as it does not rely on this aspect of EPIC’s argument in concluding that the Commission’s | Electronic_Privacy_Information_2020-06-01.txt |
4dddfbdf-8d52-4d38-9085-ca2e3e9a764d | members are “intermittent” employees. The Court also does not rely on EPIC’s assertion—
supported by a declaration attached to its reply brief—that the Commission’s chief of staff stated
that “the members of the Commission were employed in ‘excepted service appointments on an
intermittent basis.’” Pl.’s Reply at 15; see Davisson Decl. , ECF No. 35-1.
33 | Electronic_Privacy_Information_2020-06-01.txt |
f14cf3ed-aefa-4355-bf22-9215b2aefc7f | One final point: EPIC’s position finds support in Association of American Physicians &
Surgeons, Inc. v. Clinton (“AAPS”), 997 F.2d 898 (D.C. Cir. 1993). AAPS considered the status
the President’s Task Force on National Health Care Reform and its working group. Id. at 900.
The court remanded for further proceedings on the status of the working group. Id. It was | Electronic_Privacy_Information_2020-06-01.txt |
aa8d83f4-6bc4-450c-b165-be5f14ca6441 | composed in part of “40 ‘special government employees’ hired by . . . agencies and the
Executive Office of the President for a limited duration.” Id. at 901.
The court expressed skepticism that the working group—so composed—fell within
FACA’s exclusion. “FACA would be rather easy to avoid if an agency could simply appoint 10 | Electronic_Privacy_Information_2020-06-01.txt |
3a811b15-12e3-44ab-abba-7c82e4171006 | private citizens as special government employees for two days, and then have the committee
receive the section 3(2) exemption as a body composed of full-time government employees.” Id.
at 915. Similar logic applies here. FACA “would be rather easy to avoid” if the Government is
right that private-citizen members of short-term advisory groups are always “permanent part- | Electronic_Privacy_Information_2020-06-01.txt |
b79ba5ff-d10e-4626-8d46-4cc502f9ca5c | time” employees of the Federal Government. Indeed, AAPS generalized that “a formal group of
a limited number of private citizens who are brought together to give publicized advice as a
group . . . would seem covered by [FACA].” Id. The Commission fits this model.
C.
Because the Commission is an “advisory committee” that must comply with FACA’s | Electronic_Privacy_Information_2020-06-01.txt |
77ca025b-baae-4823-a06f-897e4e58a531 | requirements, EPIC’s entitlement to mandamus relief is straightforward. The party seeking
mandamus has the burden of showing “(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).12 | Electronic_Privacy_Information_2020-06-01.txt |
cbf0c7fe-9622-4449-8404-3ddb63b83402 | 12 “Even when [these three] legal requirements for mandamus jurisdiction have been satisfied,
however, a court may grant relief only when it finds compelling equitable grounds.” Am. Hosp.
Ass’n, 812 F.3d at 189. Given the Commission’s clear duty to comply with FACA, the Court
34 | Electronic_Privacy_Information_2020-06-01.txt |
01980f5c-5ec3-4094-b63a-22f30cd1631b | EPIC has shown all three. Since relief under the APA is unavailable, see supra Section
III.A, “no adequate alternative remedy exists.” And the Government’s sole argument for why
EPIC has not established “a clear and indisputable right to relief” or “a clear duty to act” is that
the Commission is not an “advisory committee” under FACA. Defs.’ Mem. at 20–24.13 This, of | Electronic_Privacy_Information_2020-06-01.txt |
7895917a-4c75-4107-844f-8c68db7a0bd0 | course, is the argument that the Court has rejected. See supra Section III.B.
The Government’s only remaining argument against mandamus is that EPIC did not
“adequately plead[]” claims under the mandamus statute. Defs.’ Mem. at 18–19. “[I]t is
impossible to know,” the Government complains, “what counts [EPIC] intended to pursue | Electronic_Privacy_Information_2020-06-01.txt |
d5a5f9aa-d184-4d3c-a2e9-d9c44204e85b | under” this statute “or the specific allegations that would support claims under [it].” Id. The
Court disagrees.
EPIC styles its Complaint as one “for Injunctive, Mandamus, and Declaratory Relief.”
Compl. at 1. It cites the mandamus statute, 28 U.S.C. § 1361, in the Complaint’s first paragraph | Electronic_Privacy_Information_2020-06-01.txt |
3cc30a81-a827-456f-aa5b-39a564401361 | and in its jurisdictional statement. Id. , 7. Then, in Count I, it claims that the Commission’s
“failure to timely notice and open [its] meetings violates 5 U.S.C. app. 2 §§ 10(a)(1) and (a)(2)
finds “compelling equitable grounds” for mandamus relief. Indeed, the Government makes no | Electronic_Privacy_Information_2020-06-01.txt |
4cd40f36-800d-41ba-bb5f-e52c9881a4b8 | argument for why, if the Commission is subject to FACA, there would not be “compelling
equitable grounds” for relief. Other than an argument that EPIC has an adequate alternative
remedy in the APA and an argument that EPIC did not adequately plead mandamus claims,
which the Court addresses infra, the Government’s arguments against mandamus focus | Electronic_Privacy_Information_2020-06-01.txt |
9b074b64-3e27-4823-a25e-3a92721975e8 | exclusively on its belief that the Commission is just not subject to FACA in the first place. See
Defs.’ Mem. at 18–24; Defs.’ Reply at 18–20, 18 n.6.
13 For the first element of mandamus, the Government invokes the doctrine of “judicial
estoppel.” Defs.’ Mem. at 22–24. This doctrine “generally prevents a party from prevailing in | Electronic_Privacy_Information_2020-06-01.txt |
2c647877-ba54-402d-99dd-de0b62adf56b | one phase of a case on an argument and then relying on a contradictory argument to prevail in
another phase.” Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000). The Government contends
that this doctrine bars mandamus relief because EPIC “prevailed on its earlier position that the
Commission is an agency subject to FOIA” and “an entity cannot be both an agency and an | Electronic_Privacy_Information_2020-06-01.txt |
71384fe6-fa43-426c-91af-c325140ba113 | advisory committee.” Defs.’ Mem. at 23. So the Government’s invocation of “judicial estoppel”
just boils down to its argument that the Commission is not an advisory committee.
35
and constitutes a failure to perform duties owed to EPIC within the meaning of 28 U.S.C.
§ 1361.” Id. . Count IV likewise asserts that the Commission’s “failure to make [its] | Electronic_Privacy_Information_2020-06-01.txt |
096d4313-ba01-461c-bd61-fda25075628e | records available for inspection and copying is a violation of 5 U.S.C. app. 2 § 10(b) and
constitutes a failure to perform a duty owed to EPIC within the meaning of 28 U.S.C. § 1361.”
Id. . Both counts seek “a writ of mandamus” compelling the Commission and its officers to
comply with FACA. Id. , 139. These counts make clear that EPIC seeks mandamus relief | Electronic_Privacy_Information_2020-06-01.txt |
ea4d94ee-4807-4015-b7ec-02eb2dc2519f | based on the Commission’s refusal to comply with FACA.
And for the reasons explained, EPIC is correct that the Commission is subject to FACA.
EPIC is thus entitled to writs of mandamus compelling the Commission and its officers to
provide timely notice of its meetings, to open them to the public, and to make its records | Electronic_Privacy_Information_2020-06-01.txt |
6ded9c6a-1679-4b54-9701-a97069a3a341 | available for public inspection and copying. Id. , 118, 136, 139; Compl. Requested Relief
A, D; see 5 U.S.C. app. 2 § 10(a)(1)–(2), (b).
EPIC also seeks relief under the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201.
Compl. ; Compl. Requested Relief H. Under the DJA, the Court “may declare the rights | Electronic_Privacy_Information_2020-06-01.txt |
bf22663c-3fbc-4a9f-b7a6-2d2545dddbbf | and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a).
This statute “is not an independent source of federal jurisdiction”; rather, “the availability of
such relief presupposes the existence of a judicially remediable right.” Schilling v. Rogers, 363
U.S. 666, 677 (1960). The Court independently has jurisdiction here under the mandamus | Electronic_Privacy_Information_2020-06-01.txt |
f25e6ba8-3879-4634-b1a5-357b6af18982 | statute, 28 U.S.C. § 1361, and EPIC has a judicially remediable right to have the Commission
comply with its duties under FACA. See Wash. Legal Found., 89 F.3d at 901–02; supra Section
III.B. EPIC is thus entitled to a declaration that the Commission has a duty under FACA to
provide timely notice of its meetings, to open them to the public, and to make its records
36 | Electronic_Privacy_Information_2020-06-01.txt |
e6386efa-389d-4d95-a520-a15ced9fb0ea | available for public inspection and copying. See Compl. , 136; 5 U.S.C. app. 2
§ 10(a)(1)–(2), (b).14
IV.
The mythology of Janus recognizes that backward- and forward-facing personae can
coexist. Today, the Court holds that Congress can and did impose Janus-like transparency
obligations upon the AI Commission. No rule of law forced Congress to choose just one. | Electronic_Privacy_Information_2020-06-01.txt |
83029526-e3d7-40c5-8440-51d2240ec8dd | The Court will dismiss Counts II, III, and V, and it will grant summary judgment for
EPIC on Counts I and IV. A separate Order will issue.
Dated: June 1, 2020
TREVOR N. McFADDEN, U.S.D.J.
14 The Government contends that EPIC did not adequately plead a claim under the DJA because | Electronic_Privacy_Information_2020-06-01.txt |
e7ed757d-bc1f-48aa-9c4f-e992f2bf4d92 | it never references this statute as an “independent cause[] of action.” Defs.’ Mem. at 18–19. But
the Government’s own authorities show that EPIC was right not to plead it as an independent
cause of action. Id. at 19. It cites cases stating that the DJA does not itself provide “a cause of
action,” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011), and that “a count for declaratory | Electronic_Privacy_Information_2020-06-01.txt |
e9807888-0b0d-4bfd-a950-116752faf9e5 | judgment . . . is more properly included in the prayer for relief,” Drone Advisory Comm., 369 F.
Supp. 3d at 38 (cleaned up). So EPIC properly requested a declaration under 28 U.S.C. § 2201
in its request for relief. See Compl. Requested Relief H.
2020.06.01
16:10:09 -04'00' | Electronic_Privacy_Information_2020-06-01.txt |
Subsets and Splits