Case 1:18-cv-01620 Document 1 Filed 07/10/18 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FIX THE COURT,
1440 G St. NW, Ste. 800
Washington, DC 20005

v.
U.S. DEPARTMENT OF
JUSTICE,
950 Pennsylvania Avenue NW
Washington, DC 20530

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Plaintiff, )
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Defendant. )
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Case No. 18-cv-1620

COMPLAINT
1.

Plaintiff Fix the Court brings this action against the U.S. Department of Justice

under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment
Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel
compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
4.

Because Defendant has failed to comply with the applicable time-limit provisions

of the FOIA, Fix the Court is deemed to have exhausted its administrative remedies pursuant to 5
U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency from

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continuing to withhold agency records and ordering the production of agency records improperly
withheld.
PARTIES
5.

Plaintiff Fix the Court is a national, non-partisan grassroots organization, created

to take the Supreme Court to task for its lack of accountability and transparency and to push
Chief Justice John Roberts and the court’s associate justices to enact basic yet critical reforms to
make the court more open and honest.
6.

Defendant the U.S. Department of Justice (DOJ) is a department of the executive

branch of the U.S. government headquartered in Washington, D.C., and an agency of the federal
government within the meaning of 5 U.S.C. § 552(f)(1). DOJ has possession, custody, and
control of the records that Fix the Court seeks.
STATEMENT OF FACTS
The Kavanaugh Records Request
7.

On May 8, 2017, Fix the Court submitted a FOIA request to DOJ seeking: “[a]ll

correspondence sent by U.S. Department of Justice personnel to Brett M. Kavanaugh and all
correspondence sent by Brett M. Kavanaugh to U.S. Department of Justice personnel from
January 20, 2001, to May 30, 2006.”
8.

Fix the Court further clarified that responsive records should include “all digital

(e-mail), print or other correspondence and attachments including instances where [Mr.
Kavanaugh] was merely carbon copied (CC’d)” during the stated time frame.
9.

In telephone and email correspondence on August 14, 2017 and August 15, 2017,

DOJ requested that Fix the Court narrow its request to a search of the email accounts of the
heads of the Office of Legal Counsel during the stated time period.

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10.

In an effort to work cooperatively with DOJ, Fix the Court agreed to narrow its

request, and on September 5, 2017, sent a revised request to DOJ seeking: “[a]ll correspondence
sent by the Assistant Attorney General in charge of the Office of Legal Counsel and his or her
primary deputy to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to
the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary
deputy from January 20, 2001, to May 30, 2006.”
11.

Fix the Court restated its clarification that responsive records should include “all

digital (e-mail), print or other correspondence and attachments among and between the stated
individuals including instances where [Mr. Kavanaugh] was merely carbon copied (CC’d)”
during the stated time frame.
12.

DOJ acknowledged the request on September 5, 2017.

13.

On October 17, 2017, Fix the Court requested an update on the status of its

request.
14.

DOJ responded on October 20, 2017 that there was “not really” any update, and

that the “request [was] still in queue for processing.”
15.

Fix the Court followed up with DOJ again in December 2017, and on December

22, 2017, DOJ informed Fix the Court that its “request [was] in the queue behind many other
requests[.]”
16.

On May 14, 2018, having received no further response, Fix the Court requested

another status update from DOJ.
17.

On May 25, 2018, DOJ responded that, “[u]nfortunately, the status for this request

remains the same.”

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Exhaustion of Administrative Remedies
18.

As of the date of this complaint, DOJ has failed to (a) notify Fix the Court of any

determination regarding its FOIA requests, including the scope of any responsive records DOJ
intends to produce or withhold and the reasons for any withholdings; or (b) produce the
requested records or demonstrate that the requested records are lawfully exempt from
production.
19.

Through DOJ’s failure to respond to Fix the Court’s FOIA requests within the

time period required by law, Fix the Court has constructively exhausted its administrative
remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
20.

Fix the Court repeats the allegations in the foregoing paragraphs and incorporates

them as though fully set forth herein.
21.

Fix the Court properly requested records within the possession, custody, and

control of DOJ.
22.

DOJ is an agency subject to FOIA and must therefore make reasonable efforts to

search for requested records.
23.

DOJ has failed to promptly review agency records for the purpose of locating

those records which are responsive to Fix the Court’s FOIA requests.
24.

DOJ’s failure to conduct an adequate search for responsive records violates FOIA.

25.

Plaintiff Fix the Court is therefore entitled to injunctive and declaratory relief

requiring Defendant to promptly make reasonable efforts to search for records responsive to Fix
the Court’s FOIA requests.

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COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
26.

Fix the Court repeats the allegations in the foregoing paragraphs and incorporates

them as though fully set forth herein.
27.

Fix the Court properly requested records within the possession, custody, and

control of DOJ.
28.

DOJ is an agency subject to FOIA and must therefore release in response to a

FOIA requests any non-exempt records and provide a lawful reason for withholding any
materials.
29.

DOJ is wrongfully withholding non-exempt agency records requested by Fix the

Court by failing to produce non-exempt records responsive to its FOIA requests.
30.

DOJ is wrongfully withholding non-exempt agency records requested by Fix the

Court by failing to segregate exempt information in otherwise non-exempt records responsive to
Fix the Court’s FOIA requests.
31.

DOJ’s failure to provide all non-exempt responsive records violates FOIA.

32.

Plaintiff Fix the Court is therefore entitled to declaratory and injunctive relief

requiring Defendant to promptly produce all non-exempt records responsive to its FOIA requests
and provide indexes justifying the withholding of any responsive records withheld under claim
of exemption.
REQUESTED RELIEF
WHEREFORE, Fix the Court respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to Fix the Court’s FOIA request;

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(2) Order Defendant to produce, within twenty days of the Court’s order, or by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
Fix the Court’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to Fix the Court’s FOIA requests;
(4) Award Fix the Court the costs of this proceeding, including reasonable attorneys’ fees
and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. §
552(a)(4)(E); and
(5) Grant Fix the Court such other relief as the Court deems just and proper.

Dated: July 10, 2018

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
/s/ Austin R. Evers
Austin R. Evers
D.C. Bar No. 1006999
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
beth.france@americanoversight.org
austin.evers@americanoversight.org
Counsel for Plaintiff Fix the Court

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