Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT,
Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-00827 (EGS)

MOTION FOR LEAVE TO INTERVENE
OF THE COMMITTEE ON WAYS AND MEANS OF THE
U.S. HOUSE OF REPRESENTATIVES
The Committee on Ways & Means of the U.S. House of Representatives moves the Court
for leave to intervene in this case pursuant to Rule 24 of the Federal Rules of Civil Procedure and
Local Civil Rule 7(j) of the U.S. District Court for the District of Columbia. The Committee seeks
intervention as of right pursuant to Rule 24(a)(2), or in the alternative, permissive intervention
under Rule 24(b)(1)(B), in order to assert the defense set forth in the Committee’s Answer, filed
with this Motion, and to participate fully in this action.
Respectfully submitted,
/s/ Thomas G. Hungar
Thomas G. Hungar,
General Counsel (DC Bar #447783)
Eleni M. Roumel,
Assistant General Counsel
Kristin A. Shapiro,
Assistant General Counsel (DC Bar # 1007010)

1

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 2 of 22

OFFICE OF GENERAL COUNSEL*
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
Telephone: (202) 225-9700
Thomas.Hungar@mail.house.gov
Counsel for the Committee on Ways and Means
of the U.S. House of Representatives

September 15, 2017

*

Attorneys in the U.S. House of Representatives Office of General Counsel are "entitled, for the
purpose of performing the counsel's functions, to enter an appearance in any proceeding before
any court of the United States or of any State or political subdivision thereof without compliance
with any requirements for admission to practice before such court." 2 U.S.C. § 5571(a).
2

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 3 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT,
Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-00827 (EGS)

MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE
OF THE COMMITTEE ON WAYS AND MEANS OF THE
U.S. HOUSE OF REPRESENTATIVES

Thomas G. Hungar,
General Counsel (DC Bar #447783)
Eleni M. Roumel,
Assistant General Counsel
Kristin A. Shapiro,
Assistant General Counsel (DC Bar # 1007010)
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
Telephone: (202) 225-9700
Thomas.Hungar@mail.house.gov
Counsel for the Committee on Ways and Means
of the U.S. House of Representatives

September 15, 2017

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 4 of 22

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
FACTS .............................................................................................................................................2
ARGUMENT ...................................................................................................................................5
I.

THE COMMITTEE IS ENTITLED TO INTERVENTION
AS OF RIGHT .........................................................................................................5
A.

II.

The Committee Has Article III Standing
to Protect its Congressional Records ...........................................................7
1.

Injury in Fact ....................................................................................7

2.

Causation..........................................................................................8

3.

Redressability...................................................................................9

B.

The Committee’s Motion is Timely.............................................................9

C.

The Committee Claims an Interest Relating To
the Subject Matter of this Action ...............................................................10

D.

This Action Threatens to Impair
the Committee’s Interests ..........................................................................11

E.

Defendants Do Not Adequately Represent
the Committee’s Interests ..........................................................................12

THE COURT SHOULD GRANT PERMISSIVE
INTERVENTION ..................................................................................................13

CONCLUSION ..............................................................................................................................14

i

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 5 of 22

TABLE OF AUTHORITIES

Cases
100Reporters LLC v. U.S. Dep’t of Justice,
307 F.R.D. 269 (D.D.C. 2014).....................................................................................11, 12
Amadour Cty. v. U.S. Dep’t of the Interior,
772 F.3d 901 (D.C. Cir. 2014) ...........................................................................................10
*

Am. Civil Liberties Union v. CIA,
823 F.3d 655 (D.C. Cir. 2016) ...........................................................................1, 3, 7, 9, 10
Appleton v. FDA,
310 F. Supp. 2d 194 (D.D.C. 2004) .....................................................................8, 9, 11, 12
Cause of Action Inst. v. Nat’l. Archives & Records Admin.,
753 F.3d 210 (D.C. Cir. 2014) .........................................................................................1, 4
*Crossroads Grassroots Policy Strategies v. FEC,
788 F.3d 312 (D.C. Cir. 2015) .................................................................................6, 12, 13
Deutsche Bank Nat’l Trust Co. v. FDIC,
717 F.3d 189 (D.C. Cir. 2013) .............................................................................................6

*

Fund for Animals, Inc. v. Norton,
322 F.3d 728 (D.C. Cir. 2003) ......................................................................... 6, 7, 8, 12-13

*

Goland v. CIA,
607 F.2d 339 (D.C. Cir. 1979) .................................................................................1, 4, 5, 7
Hodgson v. United Mine Workers of Am.,
473 F.2d 118 (D.C. Cir. 1972) .............................................................................................5
Holy Spirit Ass’n v. CIA,
636 F.3d 838 (D.C. Cir. 1980) .............................................................................................1
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .........................................................................................................7, 8
Nat’l Res. Def. Council v. Costle,
561 F.2d 904 (D.C. Cir. 1977) ...........................................................................................11

*

Paisley v. CIA,
724 F.2d 201 (D.C. Cir. 1984) ...........................................................................1, 6, 7, 9, 10
Roane v. Leonhart,
741 F.3d 147 (D.C. Cir. 2014) ............................................................................. 5-6, 12, 13

ii

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 6 of 22

Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ...............................................................................................................8
Smith v. U.S. Cong.,
No. 95-5281, 1996 WL 523800 (D.C. Cir. Aug. 28, 1996) .................................................4
Swan v. SEC,
96 F.3d 498 (D.C. Cir. 1996) .............................................................................................12
Trbovich v. United Mine Workers of Am.,
404 U.S. 528 (1972) ...........................................................................................................12
United States v. Am. Tel. & Tel. Co.,
642 F.2d 1285 (D.C. Cir. 1980) ...............................................................................9, 10, 13
United States v. British Am. Tobacco Austl. Servs., Ltd.,
437 F.3d 1235 (D.C. Cir. 2006) ...........................................................................................9
*

United We Stand Am., Inc. v. IRS,
359 F.3d 595 (D.C. Cir. 2004) .............................................................................1, 3, 4, 7, 9
Wilderness Soc’y v. Norton,
434 F.3d 584 (D.C. Cir. 2006) .............................................................................................9

Statutes and Federal Rules
5 U.S.C. §§ 551(1)(A)......................................................................................................................1
Fed. R. Civ. P. 24(a)(2) ................................................................................................................5, 6
Fed. R. Civ. P. 24(b)(1)(B) ......................................................................................................13, 14
Fed. R. Civ. P. 24(b)(3)..................................................................................................................14

Other Authorities
Rule II.8(b), Rules of the U.S. House of Representatives (115th Cong.) ........................................2
Blog Post, American Oversight,
Third Set of Health Care Emails Again Shows Trump
Administration Effort to Hide Negotiations
(“American Oversight Blog”) (Sept. 7, 2017) .....................................................................4

iii

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 7 of 22

INTRODUCTION
Since the enactment of the Freedom of Information Act (“FOIA”), it has been wellestablished that congressional records are not “agency records” and therefore are not subject to
FOIA. 5 U.S.C. §§ 551(1)(A), see also Cause of Action Inst. v. Nat’l. Archives & Records Admin.,
753 F.3d 210, 212 (D.C. Cir. 2014) (citing United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597
(D.C. Cir. 2004)). Over the past four decades, D.C. Circuit jurisprudence has repeatedly and
consistently confirmed that whenever Congress manifests its clear intent to control the records at
issue, such documents are not agency records – even when in the possession of an agency – and
accordingly are not subject to FOIA. See, e.g., Am. Civil Liberties Union v. CIA, 823 F.3d 655,
662-63 (D.C. Cir. 2016); United We Stand, 359 F.3d at 597; Paisley v. CIA, 724 F.2d 201, 204
(D.C. Cir. 1984); Holy Spirit Ass’n v. CIA, 636 F.2d 838, 841-42 (D.C. Cir. 1980), vacated in part
as moot, 455 U.S. 997 (1982); Goland v. CIA, 607 F.2d 339, 344-48 (D.C. Cir. 1979).
The Committee on Ways and Means of the U.S. House of Representatives (“Committee”)
understands that on September 5, 2017, defendants the U.S. Department of Health and Human
Services (“HHS”) and the Office of Management and Budget (“OMB”) (collectively,
“defendants”) made their third and final production of documents to plaintiff American Oversight
in this FOIA action, pursuant to this Court’s May 25, 2017 Minute Order. The Committee has
learned that the September 5 production includes unredacted portions of four of the Committee’s
confidential congressional records, which are not subject to FOIA and should not have been
disclosed even in part.

Those confidential congressional records bear a legend from the

Committee, affixed and sent contemporaneously with the correspondence, expressing the
Committee’s clear intent to control the correspondence and responses thereto as congressional

1

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 8 of 22

records. The Committee moves to intervene in this litigation in order to prevent any further
improper production and disclosure of congressional records pursuant to FOIA. 1
Consistent with Local Civil Rule 7(m), the Committee’s counsel consulted with counsel
for the parties prior to filing this motion. Plaintiff’s and defendants’ counsel indicated that they
could not determine their response until they reviewed the Committee’s motion.
FACTS
As alleged in the complaint, this litigation arises out of two FOIA requests submitted by
plaintiff to the defendants in March 2017. First, on March 15, 2017, American Oversight
submitted a request to HHS seeking, from January 20, 2017, to the date of the search:
(1) All communications, meeting notices, meeting agendas, informational material,
draft legislation, talking points, or other materials exchanged between HHS and any
members of Congress or congressional staff relating to health care reform.
(2) All calendar entries for the Secretary, any political or SES appointees in the
Secretary’s office, and the Acting Assistant Secretary for Legislation, or anyone
maintaining calendars on behalf of these individuals, relating to health care reform.
For calendar entries created in Outlook or similar programs, the documents should
be produced in “memo” form to include all invitees, any notes, and all attachments.
Compl. Ex. A at 2 (ECF No. 1-1). Second, plaintiff submitted a substantially similar request to
OMB seeking, from January 20, 2017, to the date of the search:
(1) All communications, meeting notices, meeting agendas, informational material,
draft legislation, talking points, or other materials exchanged between OMB and
any members of Congress or congressional staff relating to health care reform.
(2) All calendar entries for the Director, any political or SES appointees in the
Director’s office, and the Acting Head of Legislative Affairs, or anyone
1

The Bipartisan Legal Advisory Group (“BLAG”), which consists of the Speaker, the Majority
Leader, the Majority Whip, the Democratic Leader, and the Democratic Whip, voted unanimously
to authorize this intervention by the Committee to protect the institutional interests of the
House. The BLAG “speaks for, and articulates the institutional position of, the House in all
litigation matters.” Rule II.8(b), Rules of the U.S. House of Representatives (115th Cong.).

2

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 9 of 22

maintaining calendars on behalf of these individuals, relating to health care reform.
For calendar entries created in Outlook or similar programs, the documents should
be produced in “memo” form to include all invitees, any notes, and all attachments.
Compl. Ex. B at 2 (ECF No. 1-2).
Plaintiff sought expedited processing of its FOIA request, and on May 4, 2017, filed the
present action. Plaintiff’s complaint alleges that defendants (1) improperly denied expedited
processing, Compl. at ¶¶ 36-56 (ECF. No. 1), (2) failed to conduct a suitable search for records
responsive to the FOIA requests, Compl. at ¶¶ 57-62, and (3) improperly withheld non-exempt
records, Compl. at ¶¶ 63-68. Plaintiff requests that this Court order defendants to expedite
processing of the FOIA requests, conduct an adequate search for responsive records, and produce
all non-exempt records responsive to plaintiff’s FOIA requests. Compl. at ¶ 12.
On May 25, 2017, this Court entered a Minute Order, ordering defendants to review and
process particular records responsive to the FOIA requests, with three production deadlines: (1)
June 30, 2017, (2) July 31, 2017, and (3) September 5, 2017. The Court further ordered scheduling
for the parties’ summary judgment briefing, beginning on September 19, 2017, and set oral
argument on summary judgment motions for November 2, 2017. See Minute Order, May 25, 2017.
Consistent with longstanding D.C. Circuit precedent, the Committee has placed a legend
on certain communications over which it wishes to manifest its intent to maintain control as
confidential congressional records.

See Declaration of Allison Halataei, General Counsel,

Committee on Ways & Means (“Halataei Decl.”) at ¶¶ 2, 7; see also Am. Civil Liberties Union,
823 F.3d at 663-64; United We Stand Am., 359 F.3d at 598-601. As relevant here, the Committee’s
legend states:
This document and any related documents, notes, draft and final legislation,
recommendations, reports, or other materials generated by Members or staff
of the Committee on Ways and Means are records of the Committee, remain
subject to the Committee’s control, and are entrusted to your agency only for
use in handling this matter. Any such documents created or compiled by an
3

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 10 of 22

agency in connection with any response to this Committee document or any
related Committee communications, including but not limited to any replies
to the Committee, are also records of the Committee and remain subject to
the Committee’s control. Accordingly, the aforementioned documents are
not “agency records” for purposes of the Freedom of Information Act or other
law.
See Halataei Decl. at ¶ 2.
The Committee recently learned that defendants’ third production of documents to
plaintiff, which occurred on September 5, 2017, inappropriately contained four of the Committee’s
confidential congressional records that covered by the Committee’s legend (the “Legended
Documents”). 2 See Halataei Decl. at ¶¶ 2-5, 7; see also Blog Post, American Oversight, Third Set
of Health Care Emails Again Shows Trump Administration Effort to Hide Negotiations
(“American Oversight Blog”) (Sept. 7, 2017). 3 Such congressional records are not subject to
FOIA. Instead of treating the Legended Documents as congressional records that are not subject
to disclosure under FOIA, however, defendants improperly produced them to plaintiff, albeit in
partially redacted form in light of various FOIA exemptions. Under the governing case law, the
Legended Documents are congressional records, not “agency records” subject to the FOIA, and
therefore should not have been produced at all. Cause of Action, 753 at 212; United We Stand,
359 F.3d at 597; Smith v. U.S. Cong., No. 95-5281, 1996 WL 523800, at *1 (D.C. Cir. Aug. 28,
1996) (per curiam) (citing Goland, 607 F.2d at 338) (affirming that “[FOIA] . . . does not apply to
congressional documents.”).

2

The four Legended Documents include: (1) HHS-Sept2017-01621-23, (2) HHS-Sept201701624-27, (3) HHS-Sept2017-01628, and (4) OMB-AmericanOversight-000988-1030. See
Halataei Decl. at ¶ 3.
3
https://www.americanoversight.org/third-set-health-care-emails-shows-trump-administrationeffort-hide-negotiations
4

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 11 of 22

Accordingly, the Committee has promptly sought to intervene in this action in order to
ensure the proper treatment of its congressional records.
ARGUMENT
The Committee and the House have a compelling institutional interest in the proper
application of FOIA, which was intended to ensure appropriate public access to Executive Branch
documents without interfering with Congress’s constitutional power and responsibility to engage
in confidential interactions with Executive Branch agencies for oversight and other legislative
purposes. As the D.C. Circuit has held, ”Congress has undoubted authority to keep its records
secret,” but it also “has an undoubted interest in exchanging documents with [Executive Branch]
agencies to facilitate their proper functioning in accordance with Congress’ originating intent.”
Goland, 607 F.2d at 346 (citation omitted). If congressional records in the possession of agencies
were subject to release under FOIA notwithstanding Congress’s objections, “Congress would be
forced either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an
impairment of its oversight role.” Id. The D.C. Circuit has “decline[d] to confront Congress with
this dilemma,” id., and this Court should do likewise. The Committee’s motion to intervene should
be granted.
I.

THE COMMITTEE IS ENTITLED TO INTERVENTION AS OF RIGHT.

“The right of intervention conferred by Rule 24 implements the basic jurisprudential
assumption that the interest of justice is best served when all parties with a real stake in a
controversy are afforded an opportunity to be heard.” Hodgson v. United Mine Workers of Am.,
473 F.2d 118, 130 (D.C. Cir. 1972). To that end, pursuant to Federal Rule of Civil Procedure Rule
24(a)(2), “[a] district court must grant a timely motion to intervene that seeks to protect an interest
that might be impaired by the action and that is not adequately represented by the parties.” Roane
5

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 12 of 22

v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014); see also Crossroads Grassroots Policy Strategies
v. FEC, 788 F.3d 312, 320 (D.C. Cir. 2015) (citing Deutsche Bank Nat’l Trust Co. v. FDIC, 717
F.3d 189, 192 (D.C. Cir. 2013)); Fed. R. Civ. P. 24(a)(2). The Committee should be granted leave
to intervene in this action to protect its interest in proper treatment of the Legended Documents
and in the important legal principles at stake, and also to preserve its rights to participate in or
bring an appeal in the event of an adverse decision. As the D.C. Circuit previously recognized in
granting a Senate committee’s belated motion to intervene post-decision in a FOIA appeal, “each
interested governmental party” should be encouraged to “see to it that its views are fully
represented before the court in some . . . way at a suitably early stage of the proceedings,” rather
than waiting until the appellate stage to intervene. Paisley, 724 F.2d at 204. In light of defendants’
recent failure to accord the Committee’s congressional records the treatment they are due under
FOIA and binding circuit precedent, intervention is clearly warranted.
The D.C. Circuit has identified four factors to be considered in ruling on a motion for
intervention as of right: “(1) the timeliness of the motion; (2) whether the applicant claims an
interest relating to the property or transaction which is the subject of the action; (3) whether the
applicant is so situated that the disposition of the action may as a practical matter impair or impede
the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately
represented by existing parties.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir.
2003) (citations and quotation marks omitted). As detailed below, the Committee readily satisfies
each of those requirements.
First, the Committee moved promptly to intervene in this action after defendants produced
the Legended Documents in their September 5, 2017, production. See Halataei Decl. at ¶ 6.
Second, the Committee has a legally protected interest in the proper treatment of its own

6

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 13 of 22

congressional records in this matter, and more generally in the well-established legal principles
that exclude such records from FOIA – principles that defendants have improperly ignored in
producing the Legended Documents. Third, this action threatens to impair the Committee’s legally
protected interest, because plaintiff seeks unredacted copies of the Committee’s confidential
congressional records. Fourth, defendants are not adequately representing the Committee’s
interests, because they have failed to treat the Legended Documents as congressional records but
instead have produced them, albeit with redactions predicated on other grounds.
A.

The Committee Has Article III Standing to Protect its Congressional Records.
“To establish standing under Article III, a prospective intervenor . . . must show: (1) injury-

in-fact, (2) causation, and (3) redressability.” Fund for Animals, 322 F.3d at 732-33 (citing Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).

The Committee readily meets these

requirements here.
1.

Injury in Fact.

To show injury in fact, an intervenor must show “an invasion of legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical. Lujan, 504 U.S. at 560 (citations and quotation marks omitted). Here, the Committee
has a well-established legally protected interest in non-disclosure of its congressional records. As
noted, over the last four decades courts consistently have recognized that Congress has a legally
protected interest in non-disclosure of its congressional records under FOIA. See Am. Civil
Liberties Union, 823 F.3d at 662; United We Stand, 359 F.3d at 597; Goland, 607 F.2d at 348.
Indeed, the D.C. Circuit has squarely held that a congressional committee whose documents are at
issue in a FOIA case “has an interest in the subject matter of the case[.]” Paisley, 724 F.2d at 202.
The Committee’s interest in protection of the confidentiality of its congressional records is

7

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 14 of 22

concrete and particularized here because it relates to disclosure of four specific Legended
Documents that defendants have already produced, in redacted form, to plaintiff, and that plaintiff
is seeking to have disclosed in full. See Halataei Decl. at ¶¶ 2-5, 7-8. The threatened invasion of
the Committee’s legally protected interest in the confidentiality of its congressional records is
plainly actual and imminent. See Compl. Ex. A at 2, Ex. B at 2; Halataei Decl. at ¶¶ 7-8. The
Committee clearly has a legally protected interest in preventing further disclosure of the Legended
Documents. See Appleton v. FDA, 310 F. Supp. 2d 194, 197 (D.D.C. 2004) (“As for standing . . .
FDA’s disclosure [under FOIA] of applicants’ . . . confidential information would cause them to
suffer an injury-in-fact . . . .”) (citing Fund for Animals, 322 F.3d at 732-33).
2.

Causation.

The second element of the standing analysis requires “a causal connection between the
injury and the conduct complained of – the injury has to be ‘fairly . . . trace[able] to the challenged
action of the defendant[.]” Lujan, 504 U.S. at 560 (citing Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 41-42 (1976)). Here, causation is obvious, and the Committee’s actual and threatened
injury is directly traceable to the conduct of the parties in this action. The Committee took
appropriate steps to preserve the confidential status of the Legended Documents by placing a
legend on the documents, contemporaneously manifesting the Committee’s intent to retain control
of those records. Halataei Decl. at ¶¶ 2-4, 7. Plaintiff seeks disclosure of documents, including
the Legended Documents, through its FOIA request and this litigation. See Compl. Ex. A at 2, Ex.
B at 2. Notwithstanding the status of the Legended Documents as congressional records not
subject to FOIA, defendants have partially produced them in this action. Halataei Decl. at ¶ 5.
The Committee’s interests have thus already been injured by the parties’ conduct, and further
injury is threatened by the relief sought by plaintiff. Halataei Decl. at ¶ 8.

8

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 15 of 22

3.

Redressability.

“The redressability inquiry poses a simple question: ‘[I]f [intervenors] secured the relief
they sought, . . . would [it] redress their injury?” Wilderness Soc’y v. Norton, 434 F.3d 584, 590
(D.C. Cir. 2006). The answer here is clearly “yes.” Consistent with binding circuit precedent, this
Court may grant the relief that the Committee seeks – namely, an order confirming that the
Legended Documents are congressional records, not agency records, and are therefore not subject
to disclosure under FOIA – and thereby prevent further injury. See Am. Civil Liberties Union, 823
F.3d at 662 (holding that a Senate committee report in possession of executive branch agencies is
not an agency record subject to FOIA); United We Stand, 359 F.3d at 605 (holding that a letter
from congressional committee and portions of IRS’s reply thereto were not agency records subject
to FOIA); see also Paisley, 24 F.2d at 204. Redressability is therefore established. See Appleton,
310 F. Supp. 2d at 197 (disclosure would cause injury “that intervention to defend against
disclosure could redress”).
B.

The Committee’s Motion is Timely.
“‘[T]imeliness is to be judged in consideration of all the circumstances, especially

weighing the factors of time elapsed since the inception of the suit, the purpose for which
intervention is sought, the need for intervention as a means of preserving the applicant’s rights,
and the probability of prejudice to those already parties in the case.’” United States v. British Am.
Tobacco Austl. Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006) (quoting United States v. Am.
Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C. Cir. 1980)). The Committee’s motion to intervene in
this four-month old FOIA case is timely. Indeed, the Committee moved to intervene promptly
after defendants’ September 5, 2017 production inappropriately included the Legended

9

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 16 of 22

Documents. 4 See Halataei Decl. ¶ 6. “[C]ourts measure elapsed time from when the ‘potential
inadequacy of representation [comes] into existence.’” Amadour Cty. v. U.S. Dep’t of the Interior,
772 F.3d 901, 904 (D.C. Cir. 2014); cf. Paisley, 724 F.2d at 203-04 (permitting Senate committee
to intervene post-appellate review in FOIA case concerning disclosure of the committee’s
congressional records).
Second, no party here will be prejudiced by the Committee’s intervention. Summary
judgment briefing has not yet commenced, and the Committee is prepared to file and argue a
motion for summary judgment regarding its Legended Documents on the same schedule as the
parties. See Minute Order, May 25, 2017.
C.

The Committee Claims an Interest Relating To the Subject Matter of this Action.
For the reasons stated above in support of standing, supra at 7-9, the Committee

unquestionably claims an interest relating to the subject matter of this case, because it has a legally
protected interest in the confidentiality of the Legended Documents whose confidentiality is
directly at issue in this case. See, e.g., Am. Civil Liberties Union 823 F.3d at 659, 662 (holding
that Senate committee records were not subject to FOIA despite widespread dissemination among
and physical possession of records by agencies). The D.C. Circuit has repeatedly held that a claim
of right to preserve the confidentiality of documents in the hands of another party is a sufficient
interest to justify intervention. See, e.g., Paisley, 724 F.2d at 204 (permitting Senate committee to
intervene post-appeal to defend against disclosure of its congressional records by CIA pursuant to
FOIA). In United States v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C. Cir. 1980),
for example, the court of appeals held that an intervenor who claimed a legal right to block
production of documents in the hands of a litigant “ha[d] certainly alleged an interest in the

4

See American Oversight Blog, supra n.3.
10

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 17 of 22

protection of its work product,” and that “an interest in protecting the requested database
documents from discovery” was sufficient to justify intervention. Id. at 1291. Numerous cases of
this Court are to the same effect. See, e.g., 100Reporters LLC v. U.S. Dep’t of Justice, 307 F.R.D.
269, 275 (D.D.C. 2014) (“[P]reventing the disclosure of . . . confidential information is a wellestablished interest sufficient to justify intervention under Rule 24(a)”); id. at 278 (“[I]t is
sufficient for purposes of Rule 24(a) that the Monitor has an interest in maintaining the
confidentiality of his reports and communications[.]”); Appleton, 310 F. Supp. 2d at 197 (D.D.C.
2004) (holding that intervenors “ha[d] an interest in the subject of the action” sufficient to justify
intervention because plaintiff’s FOIA request sought FDA documents “that allegedly contain[]
trade secrets and confidential information” submitted by intervenors).

Accordingly, the

Committee’s interest is sufficient to support intervention here.
D.

This Action Threatens to Impair the Committee’s Interests.
In determining whether this action threatens to impair the Committee’s interests, the Court

must consider the “practical consequences” that the Committee may suffer if intervention is
denied. Nat’l Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977). Further disclosure
of the Legended Documents resulting from a ruling in favor of plaintiff in this action would
immediately and irreparably impair the Committee’s ability to preserve the confidentiality of these
congressional records. Halataei Decl. ¶ 8. Absent intervention, moreover, no party will be
advancing the argument that the Legended Documents constitute congressional records that are
not subject to disclosure under FOIA. Preventing the disclosure of confidential information is a
well-established interest sufficient to justify intervention under Rule 24(a).

See, e.g.,

100Reporters, 307 F.R.D. at 279 (a “consequence that frequently qualifies as impairment is when
the disclosure of materials following the disposition of a FOIA action ‘could impair the

11

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 18 of 22

[intervenors’] ability to protect their . . . confidential information’”) (citation omitted); Appleton,
310 F. Supp. 2d at 197 (threatened impairment prong satisfied because “disclosures resulting from
the disposition of this [FOIA] action could impair the [intervenors’] ability to protect their trade
secrets or confidential information”). Irreparable impairment of the Committee’s interests is
“especially obvious in FOIA litigation because if the plaintiff succeeds, the public release of the
requested materials is both imminent and irreversible.” 100Reporters, 307 F.R.D. at 279. As the
D.C. Circuit has explained, “[o]nce records are released, nothing in FOIA prevents the requester
from disclosing the information to anyone else. The statute contains no provisions requiring
confidentiality agreements or similar conditions.” Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996).
Further, the Committee’s interest would be impaired if there is an adverse judgment in this
case, because it may establish unfavorable precedent, namely, that documents bearing the
Committee’s legend have been disclosed in FOIA litigation. See Crossroads, 788 F.3d at 320
(granting intervention because “[a]n adverse judgment in the district court would impair [the
intervenor’s] defense in a new proceeding.”); Roane, 741 F.3d at 151 (intervention warranted
because the litigation “could establish unfavorable precedent that would make it more difficult for
[the intervenor] to succeed” in any future suit to enforce his rights).
E.

Defendants Do Not Adequately Represent the Committee’s Interests.
By producing partially redacted copies of the Committee’s Legended Documents to

plaintiff, defendants have shown that they will not adequately represent the Committee’s interest
in protecting the entirety of its congressional records from disclosure under FOIA. The Committee
need only “show[] that representation of [its] interest ‘may be’ inadequate; and the burden of
making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am.,
404 U.S. 528, 538 n.10 (1972) (citation omitted); see Fund for Animals, 322 F.3d at 735 (this

12

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 19 of 22

requirement is “‘not onerous’”) (citation omitted); United States v. Am. Tel. & Tel. Co., 642 F.2d
at 1293 (intervention “ordinarily should be allowed . . . unless it is clear” that an existing party
provides adequate representation (internal quotation omitted)).
Here, the record makes clear not only that the defendants’ representation “may be”
inadequate, but also that it is inadequate in fact. The Committee has a specific interest in the
confidentiality of the Legended Documents. See supra at 11-12. Defendants have already
demonstrated their unwillingness to defend that interest by failing to treat those documents as
congressional records not subject to disclosure under FOIA and instead producing portions of those
documents to plaintiff. The fact that defendants are raising other grounds for refusing to disclose
the redacted portions of those documents does not undermine this conclusion, because defendants
are failing to present a full-fledged defense of the Committee’s interests and legal rights. See Fund
for Animals, 322 F.3d at 736 (holding that representation may be inadequate under Rule 24(a)(2)
even if defendant’s and intervenor’s interests overlap, when defendant is not affording such
interests the “primacy” that intervenor would afford). The Committee “should not need to rely on
a doubtful friend to represent its interests, when it can represent itself.” Crossroads, 788 F.3d at
321. Further, there is no certainty that the defendants will pursue an appeal in this case in the event
of an adverse decision, and accordingly the Committee’s intervention is necessary to preserve the
right of appeal. Id. at 320; Roane, 741 F.3d at 151.
II.

THE COURT SHOULD GRANT PERMISSIVE INTERVENTION.

In the alternative, the Court should grant the Committee permissive intervention under Fed.
R. Civ. P. 24(b)(1)(B), which requires that “[o]n timely motion, the court may permit, anyone to
intervene who . . . has a claim or defense that shares with the main action a common question of
law or fact.” Fed. R. Civ. P. 24(b)(1)(B).

Permissive intervention is appropriate because the

Committee timely moved to intervene and has a claim or defense that shares a common question
13

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 20 of 22

of law with the main action. Specifically, a common question of law exists because one of the
questions at issue in this litigation is whether the four Legended Documents must be disclosed
under FOIA. See Compl., Prayer For Relief at (1)-(4); Committee Answer, Affirmative Def. at
¶ 1; Halataei Decl. at ¶¶ 5, 7. Plaintiff alleges it is entitled to disclosure of these documents in
full; defendants have asserted that portions of those documents are not subject to disclosure on
various legal grounds; the Committee asserts that the Legended Documents are not subject to
disclosure at all because they are congressional records. See Compl. at ¶¶ 10-12, 63-67; Def.
Answer, Affirmative Defense at ¶ 1(ECF No. 12); Committee Answer, Affirmative Def. at ¶ 1.
This common legal question – namely, whether and to what extent disclosure is required under
FOIA – justifies permissive intervention.
Finally, intervention will not “delay or prejudice the adjudication of the original parties’
rights.” Fed. R. Civ. P. 24(b)(3). As noted, supra at 9-10, the Committee’s motion is timely and
no delays will result from the Committee’s intervention in this matter. Summary judgment briefing
has not yet commenced, and the Committee is prepared to file and argue a motion for summary
judgment on the same schedule as the parties. See Minute Order, May 25, 2017. Permissive
intervention is therefore appropriate.
CONCLUSION
The Court should grant the Committee’s motion to intervene.
Respectfully submitted,
/s/ Thomas G. Hungar
Thomas G. Hungar,
General Counsel (DC Bar #447783)
Eleni M. Roumel,
Assistant General Counsel
Kristin A. Shapiro,
Assistant General Counsel (DC Bar # 1007010)

14

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 21 of 22

OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
Telephone: (202) 225-9700
Thomas.Hungar@mail.house.gov
Counsel for the Committee on Ways and Means
of the U.S. House of Representatives

September 15, 2017

15

 Case 1:17-cv-00827-EGS Document 19 Filed 09/15/17 Page 22 of 22

CERTIFICATE OF SERVICE
I hereby certify that on September 15, 2017, I filed the foregoing Motion to Intervene
and Memorandum in Support of the Motion to Intervene via the U.S. District Court for the
District of Columbia’s CM/ECF system, which I understand caused a copy to be served on
registered CM/ECF users:

/s/ Thomas G. Hungar
Thomas G. Hungar