Case 1:17-cv-00827-EGS Document 22 Filed 09/20/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES and
)
OFFICE OF MANAGEMENT AND BUDGET )
)
Defendants. )
)
AMERICAN OVERSIGHT,

Case No. 17-827 (EGS)

PLAINTIFF’S MOTION TO MODIFY BRIEFING SCHEDULE ON MOTION TO
INTERVENE BY THE COMMITTEE ON WAYS AND MEANS OF THE
U.S. HOUSE OF REPRESENTATIVES
On September 15, 2017, the Committee on Ways and Means of the U.S. House of
Representatives (“the Committee”) moved to intervene in this lawsuit. See Mot. for Leave to
Intervene, ECF No. 19. American Oversight hereby moves the Court to modify the briefing
schedule on the motion to intervene to align it with previously scheduled summary judgment
briefing.
*

*

*

The Committee’s motion to intervene is premised on its argument that four of the
requested records are not, in fact, “agency records” subject to the Freedom of Information Act
(“FOIA”), but rather confidential congressional records that are outside the scope of FOIA. See
Mem. in Supp. of Mot. for Leave to Intervene, ECF No. 19. Thus, the Committee argues, it has
standing to protect its interest in the confidentiality of its own congressional records, and a legal
interest in the subject matter of this case. See id. at 7-9, 10-12 (asserting that the Committee has

 Case 1:17-cv-00827-EGS Document 22 Filed 09/20/17 Page 2 of 4

an interest relating to the subject matter of this action, which interest could be impaired by this
litigation).
On September 19, 2017, the Committee filed a motion for leave to file summary
judgment briefs in this case and attached a proposed motion for summary judgment. See Mot. for
Leave to File Mot. for Summary Judgment, ECF No. 21; Mot. for Summary Judgment, ECF No.
21-2. The arguments in support of the Committee’s motion to intervene overlap significantly
with the substantive arguments raised in the Committee’s proposed motion for summary
judgment: namely, that any undisclosed information in those four records should not be disclosed
because the records themselves are congressional records not subject to FOIA. In short, both
motions turn on the fundamental question of whether the records in question are, in fact,
congressional records.
As the Court is no doubt well aware, summary judgment briefing in this case is scheduled
to proceed on an expedited basis, with Defendants’ summary judgment motion due on September
26, and Plaintiff’s cross-motion due on October 10. See Sept. 19, 2017 Minute Order (granting
Defendants’ Motion for Extension of Time). Under the current schedule, therefore, there will be
two simultaneous and overlapping briefing tracks on substantially related issues.
Accordingly, while taking no position on the merits of the Committee’s motion to
intervene, American Oversight respectfully requests that this Court (a) grant the Committee’s
motion for leave to file summary judgment briefs on the same schedule previously set by this
Court in its September 19 Minute Order; (b) modify the briefing schedule on the motion to
intervene to align it with the current summary judgment briefing schedule; and (c) hear oral
argument on all motions pending before the Court at the hearing currently scheduled for
November 2, 2017. Because of the significant overlap between the arguments at issue in the two

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 Case 1:17-cv-00827-EGS Document 22 Filed 09/20/17 Page 3 of 4

motions, this approach would avoid duplicative and overlapping briefing and conserve judicial
resources.1
Dated: September 20, 2017

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
Austin R. Evers
D.C. Bar No. 1006999
John E. Bies
D.C. Bar No. 483730
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5246
sara.creighton@americanoversight.org
austin.evers@americanoversight.org
john.bies@americanoversight.org
Counsel for Plaintiff

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Consistent with Local Civil Rule 7(m), counsel for American Oversight consulted with counsel
for Defendants prior to filing this motion. Counsel for Defendants stated that they do not take a
position with respect to this motion. American Oversight also consulted with counsel for
potential Defendant-Intervenor the Committee on Ways and Means, who provided this
statement: “The Committee takes no position on the relief requested in American Oversight’s
motion. While the Committee disagrees with the premise of the motion, the Committee is ready
and willing to brief the Motion to Intervene on whatever schedule the Court orders.”
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 Case 1:17-cv-00827-EGS Document 22 Filed 09/20/17 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that on September 20, 2017, I electronically filed a copy of the foregoing
Motion to Modify the Briefing Schedule on the Motion to Intervene by the Committee on Ways
and Means of the U.S. House of Representatives. Notice of this filing will be sent via email to all
parties by operation of the Court’s electronic filing system. Parties may access this filing through
the Court’s CM/ECF System.

/s/ Sara Kaiser Creighton
Sara Kaiser Creighton

 Case 1:17-cv-00827-EGS Document 22-1 Filed 09/20/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES and
)
OFFICE OF MANAGEMENT AND BUDGET, )
)
Defendants. )
)
AMERICAN OVERSIGHT,

Case No. 17-827 (EGS)

PROPOSED ORDER
Upon consideration of the Motion to Intervene by the Committee on Ways and Means of
the U.S. House of Representatives (“the Committee”), it is hereby
ORDERED that the Committee shall be permitted to file summary judgment briefs on its
own behalf in accordance with the briefing schedule previously set out by this Court in its
September 19, 2017 Minute Order, and it is further
ORDERED that the Committee’s motion for summary judgment shall be deemed filed
on September 26, 2017; that Plaintiff American Oversight shall file its oppositions to both the
Committee’s motion for summary judgment and the motion to intervene, as well as any crossmotion for summary judgment no later than October 10, 2017; that the Committee shall file its
reply in support of its motion for summary judgment, its opposition to Plaintiff’s cross-motion,
and its reply in support of the motion to intervene no later than October 24, 2017; and that
Plaintiff shall file its reply in support of its cross-motion, if any, no later than October 30, 2017;
and it is further

 Case 1:17-cv-00827-EGS Document 22-1 Filed 09/20/17 Page 2 of 2

ORDERED that the Committee shall be permitted to participate in the hearing in this
matter currently set for November 2, 2017, and it is further
ORDERED that the hearing currently set for November 2, 2017, shall address all
motions for summary judgment as well as the motion to intervene.
SO ORDERED.
Date: ________________________

____________________________________
EMMET G. SULLIVAN
United States District Judge

 

 

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