Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 1 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF THE TREASURY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-2078 (RBW) MOTION FOR LEAVE TO INTERVENE OF THE COMMITTEE ON WAYS AND MEANS OF THE U.S. HOUSE OF REPRESENTATIVES The Committee on Ways and 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, submitted with this Motion, and to participate fully in this action. Consistent with Local Civil Rule 7(m), the Committee’s counsel consulted with counsel for the parties prior to filing this motion. Plaintiff’s counsel indicated they do not oppose this motion. 1 Counsel for defendants takes no position on this motion. 1 Plaintiff states that its position is as follows: “Plaintiff disagrees that the Committee has a legally protected interest at stake in this litigation, but Plaintiff does not intend to oppose the Committee’s motion for leave to intervene in this litigation and make arguments on its own behalf. This response should not be construed as a concession or waiver for any arguments Plaintiff may make in response to any motion for summary judgment or other submission the Committee may file in this litigation.” Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 2 of 21 Respectfully submitted, /s/ Thomas G. Hungar THOMAS G. HUNGAR, General Counsel (DC Bar #447783) KIMBERLY HAMM, Assistant General Counsel (DC Bar #1020989) 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 April 13, 2018 * 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). Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 3 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF THE TREASURY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-2078 (RBW) 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) KIMBERLY HAMM, Assistant General Counsel (DC Bar # 1020989) 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 April 13, 2018 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 4 of 21 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...................................................................................8 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-02078-RBW Document 15 Filed 04/13/18 Page 5 of 21 TABLE OF AUTHORITIES Cases 100Reporters LLC v. U.S. Dep’t of Justice, 307 F.R.D. 269 (D.D.C. 2014).....................................................................................10, 11 Amadour Cty. v. U.S. Dep’t of the Interior, 772 F.3d 901 (D.C. Cir. 2014) .............................................................................................9 * Am. Civil Liberties Union v. CIA, 823 F.3d 655 (D.C. Cir. 2016) ...........................................................................1, 4, 7, 9, 10 Am. Oversight v. U.S. Dep’t of Health & Human Servs., No. 17-827 (D.D.C.) .........................................................................................2, 4, 5, 9, 13 Appleton v. FDA, 310 F. Supp. 2d 194 (D.D.C. 2004) .....................................................................8, 9, 10, 11 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) .................................................................................5, 12, 13 Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189 (D.C. Cir. 2013) ......................................................................................... 5-6 * 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. 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, 12, 13 ii Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 6 of 21 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, 12 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, 4, 7, 9 Wilderness Soc’y v. Norton, 434 F.3d 584 (D.C. Cir. 2006) .............................................................................................8 Statutes and Federal Rules 5 U.S.C. § 551(1)(A)........................................................................................................................1 Fed. R. Civ. P. 24(a)(2) ....................................................................................................................5 Fed. R. Civ. P. 24(b)(1)(B) ............................................................................................................13 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 iii Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 7 of 21 INTRODUCTION Since the enactment of the Freedom of Information Act (“FOIA”), it has been well-established that congressional records are not “agency records” and therefore are not subject to FOIA. 5 U.S.C. § 551(1)(A) (exempting Congress from FOIA definition of “agency”); 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 retain control over its communications with federal agencies, 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 defendants the U.S. Department of the Treasury (“Treasury”) and the Office of Management and Budget (“OMB”) have commenced producing documents to plaintiff American Oversight in this FOIA action, as disclosed in the parties’ Joint Status Report (ECF No. 9) and pursuant to the Court’s February 2, 2018, Order (ECF No. 14). The Committee has learned that at least one document in defendants’ possession that defendants deem responsive to the applicable FOIA requests is a confidential congressional record of the Committee that bears a legend from the Committee, affixed and sent contemporaneously with the correspondence, expressing the Committee’s clear intent to control the correspondence, its attachments, and responses thereto as congressional records. Such documents are not covered by FOIA and are not subject to disclosure in this FOIA action. The Committee therefore moves to intervene in this litigation 1 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 8 of 21 in order to assert its rights to preserve the congressional-record status of such documents and to ensure that its congressional records are not improperly produced and disclosed pursuant to FOIA. 1 In a similar FOIA case pending in this district, the court permitted the Committee to intervene to defend against disclosure of its congressional records. See Minute Order, Am. Oversight v. U.S. Dep’t of Health & Human Servs., No. 17-827 (D.D.C. Sept. 26, 2017) (Sullivan, J.). The same result is appropriate here. FACTS As alleged in the complaint, this litigation arises out of four FOIA requests submitted by plaintiff to the defendants in August 2017. Compl. ¶¶ 9, 11, 13, 15. Two of those requests, the “OMB Congressional Communications FOIA” and “Treasury Congressional Communications FOIA” (collectively, “Congressional Records Requests”) implicate congressional communications. See Compl. ¶¶ 9, 13, Exs. A, C (ECF Nos. 1-6, 1-8). First, on August 7, 2017, American Oversight submitted a request to defendant OMB seeking, from January 20, 2017, to the date of the search: All communications … or other materials relating to potential legislation regarding the federal tax code exchanged between or including any members of Congress or congressional staff and [specified OMB officials.] Compl. ¶ 9. Second, on August 7, 2017, plaintiff submitted a FOIA request to defendant Treasury seeking from January 20, 2017, to the date of the search: 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-02078-RBW Document 15 Filed 04/13/18 Page 9 of 21 All communications … or other materials relating to potential legislation regarding the federal tax code exchanged between or including any members of Congress or congressional staff and [specified Treasury officials.] Compl. ¶ 13. Plaintiff sought expedited processing of each of its August 2017 FOIA requests, but the agencies failed to make a determination as to the expedited processing requests for the Congressional Records Requests. Compl. ¶¶ 35, 36. On October 5, 2017, plaintiff filed the present action. With respect to the Congressional Records Requests, plaintiff’s complaint alleges that defendant (1) improperly failed to grant expedited processing, Compl. ¶¶ 40-53, (2) failed to conduct a suitable search for responsive records, Compl. ¶¶ 61-66, and (3) improperly withheld nonexempt records, Compl. ¶¶ 67-72. Plaintiff requests that this Court order defendants to expedite the Requests, conduct an adequate search for responsive records, produce all non-exempt records responsive to plaintiff’s FOIA requests, and enjoin defendant from withholding non-exempt records responsive to plaintiff’s FOIA requests. Compl. at 15-16 (Requested Relief). On December 14, 2017, the parties submitted a Joint Status Report advising the Court that defendants would begin making productions on or before January 16, 2018, but that the nonCongressional Records Requests would be processed by defendants first. Joint Status Report (ECF No. 9), at 3-4. On February 2, 2018, this Court ordered Treasury to commence producing records responsive to the Treasury Congressional Communications FOIA by March 5, 2018, with monthly productions thereafter. Order (Feb. 2, 2018) (ECF No. 14). 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 Decl. of Machalagh Carr, General Counsel, Committee on Ways & Means (“Carr Decl.”) ¶¶ 4, 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: 3 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 10 of 21 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 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 Carr Decl. ¶ 4. The Committee recently learned that defendants have identified at least one responsive document in their possession that is a confidential congressional record of the Committee, and that is covered by the Committee’s legend (the “Legended Documents”). See Carr Decl. ¶ 5. Such congressional records are not subject to FOIA. In American Oversight v. U.S. Dep’t of Health & Human Services, No. 17-827 (D.D.C.), however, the Executive Branch improperly produced redacted copies of congressional records containing a similar legend, see Decl. of Allison E. Halataei (“Halataei Decl.”), Am. Oversight, 17-827 (Sept. 15, 2017) (ECF No. 19-1), even though governing case law establishes that such legended documents are congressional records, not “agency records” subject to the FOIA, and therefore should not be produced at all under FOIA. See, e.g., Cause of Action, 753 F.3d 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.”). Accordingly, the Committee has promptly sought to intervene in this action in order to ensure the proper treatment of its congressional records. 4 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 11 of 21 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 (citations 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. See Minute Order, Am. Oversight, No. 17-827 (Sept. 26, 2017). 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 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 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. 5 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 12 of 21 FDIC, 717 F.3d 189, 192 (D.C. Cir. 2013)). 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 the Committee’s interest in preserving its legal rights and the Executive Branch’s failure to protect the confidentiality of congressional records on a consistent basis, 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 the Committee learned that defendants believe the Legended Documents are responsive to the FOIA request. See Carr Decl. ¶¶ 5, 8. Second, the Committee has a legally protected interest in the proper treatment of its own 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 production of the Committee’s 6 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 13 of 21 confidential congressional records. Fourth, defendants do not adequately represent the Committee’s interests, because the Committee’s legal rights are at stake and the Executive Branch has not consistently and vigorously defended the congressional-record status of legended congressional communications. A. The Committee Has Article III Standing to Protect its Congressional Records. “To establish standing under Article III, a prospective intervenor … must show: (1) in- jury-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 concrete and particularized here because it relates to plaintiff’s demand for disclosure of at least one Legended Document (and perhaps more). See Carr Decl. ¶ 5. The threatened invasion of the Committee’s legally protected interest in the confidentiality of its congressional records is 7 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 14 of 21 plainly actual and imminent. The Committee clearly has a legally protected interest in preventing 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 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Here, causation is obvious, and the Committee’s imminent 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. Carr Decl. ¶¶ 4, 7. Plaintiff nonetheless seeks disclosure of the Legended Documents through this litigation. See Compl. ¶¶ 9, 13; Carr Decl. ¶¶ 2-5. The Committee’s interests are threatened by the relief sought by plaintiff. Carr Decl. ¶¶ 9-10. 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) (citation omitted). 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 the Committee’s imminent 8 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 15 of 21 injury. See Am. Civil Liberties Union, 823 F.3d at 667-68 (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, 724 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”) (citation omitted). B. The Committee’s Motion Is Timely. “‘[T]imeliness is to be judged in consideration of all the circumstances, especially weigh- ing 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 six-month old FOIA case is timely. Indeed, the Committee moved to intervene promptly after learning that defendants believe the Legended Documents are responsive to the FOIA request. See Carr Decl. ¶¶ 5, 8. As noted above, the Executive Branch has not consistently and vigorously defended the congressional-record status of such communications. Carr Decl. ¶ 6; see also Halataei Decl., Am. Oversight, No. 17-827 (ECF No. 19-1). “[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). 9 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 16 of 21 In addition, no party here will be prejudiced by the Committee’s intervention. The Committee is prepared to brief and argue the inapplicability of FOIA to the Legended Documents as the Court may direct. C. The Committee Claims an Interest Relating to the Subject Matter of this Action. For the reasons stated above in support of standing, supra pp. 7-9, the Committee un- questionably 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, 667-68 (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 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 decisions 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 well-established 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 10 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 17 of 21 (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[ed] 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. Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977). Disclosure of the Legended Documents would immediately and irreparably impair the Committee’s ability to preserve the confidentiality of these congressional records. Carr Decl. ¶ 10. Absent intervention, moreover, there is no guarantee that any 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 [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 … 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 11 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 18 of 21 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 because, absent intervention, this case may establish unfavorable precedent, namely the incorrect proposition that production of documents bearing the Committee’s legend may be compelled 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. Defendants cannot be counted upon to adequately represent the Committee’s interest in protecting 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 requirement is “‘not onerous’”) (citation omitted); 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 (citation omitted)). Here, the record makes clear the Executive Branch has not consistently and vigorously defended the congressional-record status of legended congressional communications. In American Oversight, No. 17-827, the Department of Justice improperly produced redacted copies of congressional records containing a similar legend, forcing the Committee to intervene to assert 12 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 19 of 21 its rights. See Halataei Decl., Am. Oversight, 17-827 (ECF 19-1); Carr Decl. ¶ 6. The Committee has a specific interest in the confidentiality of the Legended Documents. See supra pp. 1011. The Executive Branch has already demonstrated its unreliability as an advocate for congressional interests in proper treatment of congressional records not subject to disclosure under FOIA. Indeed, defendant OMB was one of the agencies that improperly produced portions of the Committee’s confidential congressional records in prior FOIA litigation. See Mem. in Supp. of Mot. for Summ. J. of the Comm. on Ways and Means of the U.S. House of Reps. at 1-4, Am. Oversight, No. 17-827 (Sept. 26, 2017) (ECF No. 27). Plainly, defendants cannot be counted upon 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 defendants will pursue an appeal in this case in the event of any 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 Federal Rule of Civil Procedure 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.” Permissive intervention is appropriate because the Committee timely moved to intervene, see supra pp. 9-10, and has a claim or defense that shares a common question of law with the main action. Specifically, a common question of law exists because one 13 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 20 of 21 of the questions at issue in this litigation is whether the Committee’s Legended Documents must be disclosed under FOIA. See Compl., Requested Relief at (1)-(4); Carr Decl. ¶¶ 5, 9. Plaintiff alleges it is entitled to disclosure of these documents, whereas the Committee asserts that the Legended Documents are not subject to disclosure at all because they are congressional records. See Compl., Requested Relief at 15-16; Defs.’ Answer, Affirmative Defense at ¶ 1 (ECF No. 8); Carr Decl. ¶ 9. This common legal question – namely, whether 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 pp. 9-10, the Committee’s motion is timely and no delays will result from the Committee’s intervention in this matter. The Committee is prepared to promptly brief and argue the common legal question as directed by the Court. 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) KIMBERLY HAMM, Assistant General Counsel (DC Bar # 1020989) 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 April 13, 2018 14 Case 1:17-cv-02078-RBW Document 15 Filed 04/13/18 Page 21 of 21 CERTIFICATE OF SERVICE I hereby certify that on April 13, 2018, I caused the foregoing Motion to Intervene and Memorandum in Support of the Motion to Intervene to be filed 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 Case 1:17-cv-02078-RBW Document 15-1 Filed 04/13/18 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF THE TREASURY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-2078 (RBW) DECLARATION OF MACHALAGH CARR I, Machalagh Carr, pursuant to the provisions of 28 U.S.C. § 1746 declare and say: 1. I currently serve as the General Counsel and Parliamentarian to the Committee on Ways and Means of the U.S. House of Representatives (the “Committee”). The Committee’s Chairman, Kevin Brady, appointed me to this role in March 2018. 2. I have reviewed plaintiff’s FOIA requests to defendants U.S. Department of Treasury (“Treasury”) and the Office of Management and Budget (“OMB”) that are the subject of this litigation. Certain of these requests seek congressional records regarding efforts to reform the federal tax code. See Compl. (ECF No. 1) at Exs. A, C. Specifically, plaintiff seeks records dated January 20, 2017, to the date of the search between Committee members and staff, on the one hand, and certain OMB and Treasury officials, on the other. 3. Throughout 2017, Committee Members and staff were communicating with Treasury and OMB officials and staff concerning a number of legislative and oversight initiatives, including the historic reform of the federal tax code that culminated in the passage and enactment of the Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, 131 Stat. 2054 (2017). Committee Members and staff expected these communications would be kept confidential as is Case 1:17-cv-02078-RBW Document 15-1 Filed 04/13/18 Page 2 of 3 customary. The need for confidentiality is important to the process of information gathering and formulating legislative proposals because it enables candid discussions about policy options. Without the expectation of confidentiality, technical details of tax reform legislation would not have been openly shared among the Committee and the agencies. 4. Throughout 2017, Committee staff had a practice of placing a legend on certain congressional communications with the Executive Branch, including certain communications with Treasury and OMB. The purpose of the legend is to make clear that such communications constitute confidential congressional records and that the Committee intends to maintain control over them. The legend provides: 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 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. 5. On or about March 30, 2018, I learned that defendants had identified at least one document containing the Committee’s legend that they believe to be responsive to plaintiff’s FOIA requests. I understand that additional such legended documents may exist. 6. In American Oversight v. U.S. Dep’t of Health & Human Services, No. 1:17- 00827-EGS (D.D.C.), a FOIA action brought by American Oversight to compel production of other communications between the Executive Branch and congressional personnel, the Department of Justice previously produced redacted copies of the Committee’s congressional records containing a similar legend. The Committee was forced to intervene in that matter to protect its legal rights and interests. 2 Case 1:17-cv-02078-RBW Document 15-1 Filed 04/13/18 Page 3 of 3 7. As of May 2017, Committee staff members were authorized to include the legend on official emails when deemed appropriate. 8. After learning of the contemplated production of Legended Documents in this matter, the Committee secured authorization from the U.S. House of Representatives Bipartisan Legal Advisory Group on a unanimous, bipartisan basis to intervene promptly in this litigation to prevent further inappropriate production and disclosure of congressional records under FOIA and to protect the institutional interests of the House. 9. The Legended Documents are the Committee's confidential congressional records, not agency records, and are not subject to production in whole or in part under FOIA. 10. Should the Legended Documents be disclosed pursuant to FOIA, the Committee's interests in maintaining control over its confidential congressional records would be irreparably impaired. I declare under penalty of perjury that the following is true and correct. Executed on April 13, 2018, in Washington, D.C. alaghgn Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF THE TREASURY, et al., Defendants, COMMITTEE ON WAYS & MEANS OF THE U.S. HOUSE OF REPRESENTATIVES, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-2078 (RBW) ANSWER Defendant-Intervenor, the Committee on Ways and Means of the U.S. House of Representatives, by and through their undersigned counsel, hereby answers the numbered paragraphs of Plaintiff’s Complaint as follows: 1. This paragraph consists of Plaintiff’s characterization of this lawsuit to which no response is required. 2. This paragraph consists of legal conclusions to which no response is required. 3. This paragraph consists of legal conclusions to which no response is required. 4. This paragraph consists of legal conclusions to which no response is required. 5. This paragraph consists of legal conclusions to which no response is required. 6. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph. Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 2 of 9 7. Defendant-Intervenor admits the allegations contained in the first sentence of this paragraph. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations in the second sentence. 8. Defendant-Intervenor admits the allegations contained in the first sentence of this paragraph. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations in the second sentence. 9. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. 10. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged request for a complete and accurate statement of its contents. 11. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged request for a complete and accurate statement of its contents. 12. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. 13. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 3 of 9 14. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. 15. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. 16. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. 17. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Defendant-Intervenor respectfully refers the Court to the alleged requests for a complete and accurate statement of their contents. 18. This paragraph consists of legal conclusions to which no response is required. 19. The first sentence of this paragraph consists of legal conclusions to which no response is required. To the extent this sentence could be construed to contain any factual allegations, Defendant-Intervenor denies any such allegations to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of any such allegations. The remaining allegations in the paragraph do not set forth a claim for relief or aver facts in support of a claim to which an answer is required. To the extent those remaining allegations could be construed to contain any factual allegations to which a response is required, Defendant-Intervenor admits that congressional Republicans were actively working with the White House and senior administration officials to develop and pass federal tax code legislation before the end of the 2017 calendar year. Defendant-Intervenor also Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 4 of 9 admits that the federal tax code affects hundreds of millions of Americans. DefendantIntervenor lacks knowledge or information sufficient to form a belief about the truth of any remaining allegations. 20. Defendant-Intervenor denies the allegations to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the allegations. 21. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 22. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 23. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 24. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 25. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 26. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 27. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 28. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 5 of 9 29. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 30. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 31. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 32. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 33. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 34. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations. 35. This paragraph consists of legal conclusions to which no response is required. 36. This paragraph consists of legal conclusions to which no response is required. 37. This paragraph consists of legal conclusions to which no response is required. 38. This paragraph consists of legal conclusions to which no response is required. 39. This paragraph consists of legal conclusions to which no response is required. 40. Defendant-Intervenor asserts and incorporates its responses to paragraphs 1 through 39 of the Complaint. 41. Defendant-Intevenor denies the allegation that Plaintiff properly requested records within the possession, custody, or control of Defendants to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 6 of 9 42. This paragraph consists of legal conclusions to which no response is required. 43. This paragraph consists of legal conclusions to which no response is required. To the extent the paragraph could be construed to contain any factual allegations, DefendantIntervenor denies the allegations to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. 44. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph. 45. This paragraph consists of legal conclusions to which no response is required. 46. This paragraph consists of legal conclusions to which no response is required. 47. Defendant-Intervenor asserts and incorporates its responses to paragraphs 1 through 46 of the Complaint. 48. Defendant-Intevenor denies the allegation that Plaintiff properly requested records within the possession, custody, or control of Defendants to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. 49. This paragraph consists of legal conclusions to which no response is required. 50. This paragraph consists of legal conclusions to which no response is required. To the extent the paragraph could be construed to contain any factual allegations, DefendantIntervenor denies the allegations to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 7 of 9 51. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph. 52. This paragraph consists of legal conclusions to which no response is required. 53. This paragraph consists of legal conclusions to which no response is required. 54. Defendant-Intervenor asserts and incorporates its responses to paragraphs 1 through 53 of the Complaint. 55. Defendant-Intevenor denies the allegation that Plaintiff properly requested records within the possession, custody, or control of Defendants to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. 56. This paragraph consists of legal conclusions to which no response is required. 57. This paragraph consists of legal conclusions to which no response is required. To the extent the paragraph could be construed to contain any factual allegations, DefendantIntervenor denies the allegations to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the allegations. 58. This paragraph consists of legal conclusions to which no response is required. 59. This paragraph consists of legal conclusions to which no response is required. 60. This paragraph consists of legal conclusions to which no response is required. 61. Defendant-Intervenor asserts and incorporates its responses to paragraphs 1 through 60 of the Complaint. 62. Defendant-Intevenor denies the allegation that Plaintiff properly requested records within the possession, custody, or control of Defendants to the extent they may pertain to Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 8 of 9 Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. 63. This paragraph consists of legal conclusions to which no response is required. 64. Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph. 65. This paragraph consists of legal conclusions to which no response is required. 66. This paragraph consists of legal conclusions to which no response is required. 67. Defendant-Intervenor asserts and incorporates its responses to paragraphs 1 through 66 of the Complaint. 68. Defendant-Intevenor denies the allegation that Plaintiff properly requested records within the possession, custody, or control of Defendants to the extent they may pertain to Defendant-Intervenor’s records, and otherwise lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations. 69. This paragraph consists of legal conclusions to which no response is required. 70. This paragraph consists of legal conclusions to which no response is required. 71. This paragraph consists of legal conclusions to which no response is required. 72. This paragraph consists of legal conclusions to which no response is required. The remaining paragraphs in the Complaint constitute a request for relief to which no response is required. To the extent a response is deemed necessary, Defendant-Intervenor denies that Plaintiff is entitled to the relief requested or to any relief whatsoever. Defendant-Intervenor hereby denies all allegations in Plaintiff’s Complaint not expressly admitted or denied. Case 1:17-cv-02078-RBW Document 15-2 Filed 04/13/18 Page 9 of 9 AFFIRMATIVE DEFENSES 1. Plaintiff is not entitled to compel production of Defendant-Intervenor’s records, which are congressional records not subject to the Freedom of Information Act, 5 U.S.C. § 552. Dated: April 13, 2018 Respectfully Submitted, /s/ Thomas G. Hungar THOMAS G. HUNGAR, General Counsel (DC Bar #447783) KIMBERLY HAMM, Assistant General Counsel (DC Bar # 1020989) 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 Case 1:17-cv-02078-RBW Document 15-3 Filed 04/13/18 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF THE TREASURY, et al., Defendants, COMMITTEE ON WAYS AND MEANS OF THE U.S. HOUSE OF REPRESENTATIVES, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-2078 (RBW) [PROPOSED] ORDER GRANTING LEAVE FOR THE COMMITTEE ON WAYS AND MEANS OF THE U.S. HOUSE OF REPRESENTATIVES TO INTERVENE Upon consideration of the Motion for Leave to Intervene and the Memorandum of Points and Authorities in Support of the Motion for Leave to Intervene filed by the Committee on Ways and Means of the U.S. House of Representatives (“Committee”), and the record of this case, it is hereby ORDERED that the Motion for Leave to Intervene is GRANTED, and the Committee is added as Defendant-Intervenor to the above-captioned civil action; and it is FURTHER ORDERED that the Committee’s Answer be deemed filed as of the date of this Order. Dated: __________ _________________________________ Judge Reggie B. Walton UNITED STATES DISTRICT COURT JUDGE Case 1:17-cv-02078-RBW Document 15-3 Filed 04/13/18 Page 2 of 2 Copies to: Sara Kaiser Creighton John E. Bies Elizabeth France American Oversight 1030 15th St., NW, B255 Washington, D.C. 20005 Counsel for plaintiff American Oversight Rebecca M. Kopplin U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Counsel for defendants Treasury and OMB Thomas G. Hungar, General Counsel Kimberly Hamm, Assistant General Counsel U.S. House of Representatives Office of General Counsel 219 Cannon House Office Building Washington, D.C. 20515 Counsel for defendant-intervenor Committee on Ways and Means of the U.S. House of Representatives