Case 1:18-cv-02091 Document 1 Filed 09/06/18 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

)
)
)
)
)
Plaintiff, )
)
)
)
)
)
)
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Defendant. )
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Case No. 18-cv-2091

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’s Office of Legal Policy (“OLP”)
has possession, custody, and control of the records that Fix the Court seeks.
STATEMENT OF FACTS
The Kavanaugh Records Request
7.

On July 24, 2018, Fix the Court submitted a FOIA request to DOJ seeking: “all

correspondence sent by Office of Legal Policy personnel to Brett M. Kavanaugh and all
correspondence sent by Brett M. Kavanaugh to Office of Legal Policy personnel from January
20, 2001, to May 30, 2006.”
8.

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

and all e-mail, print or other correspondence and attachments including instances where [Judge
Kavanaugh] was merely carbon copied (CC’d).”
9.

In its request, Fix the Court requested expedition because the “American public

has a substantial and urgent need to have access to public records concerning Mr. Kavanaugh’s
public service record to inform its understanding of the impending confirmation hearings.”

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10.

DOJ first acknowledged the request on August 1, 2018, advising Fix the Court

that the request was “already in the queue, received on July 24th and assigned to an analyst for
processing . . . .”
11.

On August 3, 2018, Vanessa R. Brinkmann, Senior Counsel at OIP, sent an

acknowledgment letter to Fix the Court stating that she had “determined that [Fix the Court’s]
request for expedited processing should be granted.” The letter further stated that DOJ needed to
extend the time limit to respond to Fix the Court’s FOIA request by ten additional days pursuant
to 5 U.S.C. § 552(a)(6)(B)(i)-(iii).
12.

On September 4, 2018, Fix the Court requested an update on the status of its

request via telephone. DOJ responded that because the request had been placed in the expedited
queue and had been deemed a “narrow” request, DOJ would not further expedite the release of
documents.
Exhaustion of Administrative Remedies
13.

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

determination regarding its FOIA request, 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.
14.

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

period required by law, Fix the Court has constructively exhausted its administrative remedies
and seeks immediate judicial review.

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COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
15.

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

them as though fully set forth herein.
16.

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

control of DOJ.
17.

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

search for requested records.
18.

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

those records which are responsive to Fix the Court’s FOIA request.
19.

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

20.

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 request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
21.

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

them as though fully set forth herein.
22.

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

control of DOJ.
23.

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

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

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24.

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

Court by failing to produce non-exempt records responsive to its FOIA request.
25.

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 request.
26.

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

27.

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 request
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;
(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 request 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 request;
(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

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(5) Grant Fix the Court such other relief as the Court deems just and proper.

Dated: September 6, 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
/s/ Hart W. Wood
Hart W. Wood
(D.D.C. Bar application pending)
D.C. Bar No. 1034361
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
beth.france@americanoversight.org
austin.evers@americanoversight.org
hart.wood@americanoversight.org
Counsel for Plaintiff Fix the Court

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
Defendant. )
)
FIX THE COURT,

Case No. 18-2091

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65, Plaintiff Fix the Court respectfully moves
this Court to issue a preliminary injunction enjoining Defendant the U.S. Department of Justice
(“DOJ”) from unlawfully impeding Fix the Court’s access to records that must be made available
under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). Fix the Court seeks injunctive
relief ordering DOJ to expedite the processing of Fix the Court’s pending FOIA request. Fix the
Court’s request seeks records related to Supreme Court nominee Brett Kavanaugh’s past public
service in the White House. Such records will allow Fix the Court to inform the public’s
participation in the debate regarding Judge Kavanaugh’s nomination to the U.S. Supreme Court.
Fix the Court further seeks an injunction ordering DOJ to search for and produce all documents
responsive to Fix the Court’s FOIA request by such date as the Court deems appropriate.
The grounds for this motion are set forth in the accompanying Memorandum in Support
of Plaintiff’s Motion for a Preliminary Injunction. Pursuant to Local Rule 65.1(d), Fix the Court
asks that the Court schedule a hearing on this motion at the Court’s earliest convenience.

 Case 1:18-cv-02091 Document 4 Filed 09/06/18 Page 2 of 4

Dated: September 6, 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
/s/ Hart W. Wood
Hart W. Wood
(D.D.C. Bar application pending)
D.C. Bar No. 1034361
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
beth.france@americanoversight.org
austin.evers@americanoversight.org
hart.wood@americanoversight.org
Counsel for Plaintiff Fix the Court

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
Defendant. )
)
FIX THE COURT,

Case No. 18-2091

PROPOSED ORDER
Upon consideration of Plaintiff’s Motion for a Preliminary Injunction, Defendant’s
Response thereto, and the entire record, it is hereby
ORDERED that Plaintiff’s Motion for a Preliminary Injunction is GRANTED; and it is
further
ORDERED that Defendant the U.S. Department of Justice shall process Plaintiff’s FOIA
request dated July 24, 2018; and it is further
ORDERED that Defendant the U.S. Department of Justice shall produce all records
responsive to Plaintiff’s FOIA request dated July 24, 2018, within ___ days of the date of this
order; and it is further
SO ORDERED.

Date: ________________________

____________________________________
United States District Judge

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CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2018, I caused a copy of the foregoing Motion for a
Preliminary Injunction to be hand-delivered to defendant at the following address:
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
In addition, a courtesy copy has been delivered to:
Jessie K. Liu
U.S. Attorney for the District of Columbia
555 4th Street NW
Washington, DC 20530
Dated: September 6, 2018

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

 Case 1:18-cv-02091 Document 4-1 Filed 09/06/18 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
Defendant. )
)
FIX THE COURT,

Case No. 18-2091

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION
FOR A PRELIMINARY INJUNCTION

 Case 1:18-cv-02091 Document 4-1 Filed 09/06/18 Page 2 of 22

TABLE OF CONTENTS
STATEMENT OF FACTS ....................................................................................................... 2
ARGUMENT ............................................................................................................................ 3
I.

THIS COURT HAS JURISDICTION TO GRANT THE REQUESTED RELIEF. .. 6

II. FIX THE COURT IS ENTITLED TO A PRELIMINARY INJUNCTION. .............. 7
A.

Fix the Court Is Likely to Succeed on the Merits. .................................................... 7

B.

Fix the Court Will Be Irreparably Harmed Absent the Requested Relief. ............. 9

C.

The Requested Relief Will Not Burden Others’ Interests. ..................................... 14

D.

The Public Interest Favors the Requested Relief. .................................................. 15

CONCLUSION ....................................................................................................................... 17

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TABLE OF AUTHORITIES
CASES
Aguilera v. FBI, 941 F. Supp. 144 (D.D.C. 1996) ...................................................................... 14
Al-Fayed v. C.I.A., 254 F.3d 300 (D.C. Cir. 2001)....................................................................... 7
Calderon v. U.S. Dep’t of Ag., 236 F. Supp. 3d 96 (D.D.C. 2017) ............................................. 13
Citizens for Responsibility and Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180 (D.C.
Cir. 2013)................................................................................................................................ 8
Cleaver v. Kelley, 427 F. Supp. 80 (D.D.C. 1976) ..................................................................... 14
Ctr. to Prevent Handgun Violence v. U.S. Dep’t of the Treasury, 49 F. Supp. 2d 3 (D.D.C. 1999)
............................................................................................................................................. 16
Dunlap v. Presidential Advisory Comm’n on Election Integrity, 286 F. Supp. 3d 96 (D.D.C.
2017) .................................................................................................................................... 13
Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181 (N.D. Cal.
2008) .................................................................................................................................... 13
* Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006)....... 10, 13,
14, 15
Jacksonville Port Auth. v. Adams, 556 F.2d 52 (D.C. Cir. 1977)................................................ 16
Judicial Watch v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir. 2013) ....................................... 12
Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246 (D.D.C. 2005) ................... 14
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ................................................. 11, 16
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ....................................................................... 13
Oglesby v. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) ............................................................. 7
Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ...................................... 9, 13
Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5 (D.D.C. 2014) ...................................................... 14
Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) .................................................... 8
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) ......... 16
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989).......................................................... 8

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* Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61 (D.D.C. 2006) ...................... passim

STATUTES & REGULATIONS
5 U.S.C. § 552 .................................................................................................................... 3, 7, 8
28 C.F.R. § 16.5. ................................................................................................................... 4, 10

CONGRESSIONAL MATERIALS
H.R. Rep. No. 93-876 (1974) ................................................................................................ 7, 13

OTHER AUTHORITIES
A Senate Deadline for Kavanaugh, Wall St. J. (July 10, 2018, 7:37 PM),
https://www.wsj.com/articles/a-senate-deadline-for-kavanaugh-1531265850 .......................... 4
Adam Liptak, How Trump Chose His Supreme Court Nominee, N.Y. Times, Feb. 6, 2017,
https://www.nytimes.com/2017/02/06/us/politics/neil-gorsuch-trump-supreme-courtnominee.html .................................................................................................................... 2, 10
Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, Time,
July 12, 2018, http://time.com/5336621/brett-kavanaugh-supreme-court/ .............................. 13
Katie Benner, Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual Request,
N.Y. Times, July 11, 2018, https://www.nytimes.com/2018/07/11/us/politics/rosensteinkavanaugh-document-review-prosecutors.html...................................................................... 15
Lydia Wheeler, Trump Eying Second Supreme Court Seat, The Hill (Apr. 23, 2017).......... 2, 10
Oliver Roeder & Amelia Thomson-DeVeaux, How Brett Kavanaugh Would Change The
Supreme Court, FiveThirtyEight (July 9, 2018), https://fivethirtyeight.com/features/how-brettkavanaugh-would-change-the-supreme-court/ ....................................................................... 13
Stephen Jessee & Neil Malhotra, The Chart That Shows the Supreme Court Will Be Out of Step
With the Country, N.Y. Times, July 12, 2018,
https://www.nytimes.com/2018/07/12/opinion/kavanaugh-supreme-court-right.html............. 13
Trump Chooses Brett Kavanaugh for the Supreme Court, N.Y. Times, July 9, 2018,
https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-nominee.html. ........... 3

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On July 9, 2018, President Trump nominated Judge Kavanaugh to fill a vacancy created
by Justice Anthony Kennedy’s retirement. On July 24, 2018, Plaintiff Fix the Court, a nonpartisan, grassroots organization dedicated to reform and transparency of the Supreme Court and
public education regarding the same, sought public records concerning Judge Brett M.
Kavanaugh’s past public service based on President Trump’s nomination of Judge Kavanaugh to
the Supreme Court. Filing the request soon after Judge Kavanaugh’s nomination ensured that Fix
the Court would be able to fulfill its mission to inform the public rapidly prior to the United
States Senate’s confirmation hearings. Yet despite Fix the Court’s diligence, it has been unable
to obtain even a single record from the Department of Justice (“DOJ”) in response to its Freedom
of Information Act (“FOIA”) request regarding records held by DOJ’s Office of Legal Policy
(“OLP”), even despite DOJ’s recognition that Fix the Court’s FOIA request should be expedited.
Judge Kavanaugh brings to his nomination a lengthy career demanding thorough public
scrutiny, and the non-public record of his activities before his appointment to the federal bench
holds high value to the public. With Senate Majority Leader Mitch McConnell having promised
to fast-track confirmation proceedings (with cooperation and coordination with the Trump
administration, including DOJ), DOJ’s failure to meet its FOIA obligations threatens to deprive
Fix the Court and the American public of information essential to ensure that Judge Kavanaugh’s
appointment receives rigorous, informed debate—in the Senate and among the general public—
appropriate for a critical post in a representative democracy. Fix the Court and the American
public have a brief opportunity to sift the record of Judge Kavanaugh’s public career and inform
the Senate as it makes an effectively irreversible decision that will shape the federal judiciary for
decades. Fix the Court seeks immediate injunctive relief to protect its vital interests and those of
the public it serves.

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STATEMENT OF FACTS
On July 24, 2018, Fix the Court submitted a FOIA request to DOJ seeking “all
correspondence sent by Office of Legal Policy personnel to Brett M. Kavanaugh and all
correspondence sent by Brett M. Kavanaugh to Office of Legal Policy personnel from January
20, 2001, to May 30, 2006,” noting that Judge Kavanaugh had served in the White House during
this timeframe. Compl. ¶ 7, ECF No. 1; Declaration of Gabe Roth (“Roth Decl.”) ¶¶ 10, 13; Ex.1
A at 2. For clarity, Fix the Court noted that responsive records should include “all memos and all
e-mail, print or other correspondence and attachments including instances where [Judge
Kavanaugh] was merely carbon copied (CC’d).” Compl. ¶ 8; Roth Decl. ¶ 14; Ex. A at 2. Fix the
Court, a non-partisan, grassroots organization dedicated to pro-transparency reforms of the
federal judiciary, including the Supreme Court, and public education concerning issues related to
the Court, sought these records related to Judge Kavanaugh’s past public service, due to
President Trump’s nomination of Judge Kavanaugh to fill Justice Kennedy’s seat on the
Supreme Court. Roth Decl. ¶¶ 1-2, 10.
In its request, Fix the Court requested expedition because the “American public has a
substantial and urgent need to have access to public records concerning Mr. Kavanaugh’s public
service record to inform its understanding of the impending confirmation hearings.” Compl. ¶ 9;
Roth Decl. ¶ 15; Ex. A at 2. On August 3, 2018, Vanessa R. Brinkmann, Senior Counsel at OIP,
sent an acknowledgment letter to Fix the Court and, recognizing the urgency of the matter, stated
that she had “determined that [Fix the Court’s] request for expedited processing should be
granted.” Compl. ¶ 11; Roth Decl. ¶ 17; Ex. B. But to date, DOJ has not made the required
determination, produced records, or indicated to what extent expedited processing may impact

1

Lettered exhibits referenced herein are attached to the Roth Declaration.
2

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processing of Fix the Court’s FOIA request. Roth Decl. ¶ 20. Fix the Court thus filed the present
action on September 6, 2018, as DOJ has failed to notify Fix the Court of any determination
regarding Fix the Court’s request or to produce the requested records within statutory deadline
required by FOIA, even after taking ten additional days to address “unusual circumstances.” See
Compl. ¶ 11, ECF No. 1; 5 U.S.C. § 552(a)(6)(A)(i).
ARGUMENT
Judge Kavanaugh was nominated to replace Justice Anthony Kennedy on the Supreme
Court of the United States on July 9, 2018, and Senate Republicans have indicated their intention
to move forward with the confirmation process as soon as possible, putting the nomination to a
vote no later than fall of 2018 before the November elections.2 Indeed, as of September 4, 2018,
the Senate’s confirmation hearings have already begun. Fix the Court’s FOIA request seeking
records concerning Judge Kavanaugh’s past public service, which is highly relevant to his
confirmation hearings, has been pending with DOJ past DOJ’s statutory deadline to respond.
Roth Decl. ¶ 20. To date, DOJ has not disclosed a single page of responsive OLP
communications to Fix the Court and has failed even to make any determinations as to whether it
will grant Fix the Court’s request. Id. Faced with promises of a rapid confirmation process and
already-in-progress Senate hearings, Fix the Court now asks the Court to enjoin DOJ from
irreparably harming Fix the Court and the public interest through its failure to make the
determination on its request required by law and the resulting wrongful withholding of records.

2

See, e.g., A Senate Deadline for Kavanaugh, Wall St. J. (July 10, 2018, 7:37 PM),
https://www.wsj.com/articles/a-senate-deadline-for-kavanaugh-1531265850 (“Mr. McConnell is
saying he intends to have a vote in the fall, and the goal should be to have a Justice Kavanaugh
ready to sit on the High Court when it opens its new term on Oct. 1.”).
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Judicial opinions reflecting Judge Kavanaugh’s tenure as a federal judge are readily
available, but equally important records reflecting his credentials and conduct prior to his
appointment to the federal bench are not. These records, which Fix the Court seeks, are highly
relevant to the Senate’s consideration of his nomination in the ongoing confirmation hearing.
In particular, the records that Fix the Court seeks are critical to public participation in the
debate surrounding the Senate’s consideration of whether Judge Kavanaugh misled the Senate
during his 2004 and 2006 hearings. At the confirmation hearing, Senator Patrick Leahy
commented on September 5, 2018, that between 2001 and 2003, “two Republican staffers on the
Senate Judiciary Committee regularly hacked into the private computer files of six Democratic
senators . . . . The ringleader behind this massive theft was a Republican Senate staffer named
Manny Miranda.” See Sen. Patrick Leahy, Comment Of Senator Leahy On His Questioning Of
Judge Kavanaugh On Hacked Democratic Files, Sept. 5, 2018, available at
https://www.leahy.senate.gov/press/090518kavanaughday2questions. Judge Kavanaugh worked
closely with Mr. Miranda throughout this time, but testified in his 2004 and 2006 hearings that
he was not aware of any “untoward” behavior. However, Senator Leahy alleges that three emails
that have just been made public reveal that Mr. Miranda was disclosing private information to
Judge Kavanaugh, and, in the words of Senator Leahy, “[t]here are many more that have been
hidden from public scrutiny under a faulty claim of committee confidentiality.” Id. Senator
Leahy “suspect[s] there are even more that were never released to the committee at all, based on
the partisan and woefully incomplete document production.” Id. Senator Leahy concluded that
“[t]here are numerous other committee confidential emails that shed light on Judge Kavanaugh’s
relationship with Miranda. They need to be made public now, before it’s too late.” Id.; see also
Tierney Sneed, Leahy Trips Kavanaugh Up With Questions About Allegedly Stolen Emails,

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Talking Points Memo (Sept. 5, 2018, 12:24 p.m.), https://talkingpointsmemo.com/dc/leahy-tripskavanaugh-up-with-questions-about-allegedly-stolen-emails. These are serious allegations that
warrant robust and informed public debate. Fix the Court seeks to do just that and ensure that the
public is able to meaningfully participate in an appropriately thorough and complete examination
of Judge Kavanaugh’s nomination.
And this is just one of the many important issues the requested records might illuminate.
Further examples of pre-judicial records that bear on issues Judge Kavanaugh would be likely to
encounter in cases before the Supreme Court include those involving:
•

Reflections on his work for Independent Counsel Kenneth Starr during the investigation
of President Bill Clinton, including drafting portions of the report that led to the
president’s impeachment (the “Starr Report”); and

•

His service as Senior Associate Counsel, Associate Counsel to the President, and White
House Staff Secretary for President George W. Bush, during a time of critical policy and
legal decisions regarding national security and due process of law, such as the indefinite
detention of inmates at a camp in Guantanamo Bay, Cuba.

These non-public records hold great public interest and should see daylight before confirmation
hearings conclude.
To date, DOJ has failed to comply with FOIA’s requirement that it provide a
determination as to the records it will produce in response to Fix the Court’s request, including
whether it will withhold requested records in full or in part. DOJ’s grant of expedited processing
of the request is appropriate but insufficient. Even on an expedited track, Fix the Court has no
guarantee, or even reasonable expectation, that DOJ will make the prompt determination
required by law and produce any non-exempt responsive records in time to inform the public of

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their contents prior to the potential confirmation of Judge Kavanaugh. DOJ’s FOIA expedition is
no match for the expedition with which the Senate has promised to move along Judge
Kavanaugh’s confirmation. Accordingly, Fix the Court asks the Court to act now to enjoin DOJ
from irreparably harming Fix the Court and the public interest through its wrongful withholding
of records.
Fix the Court meets the requirements for preliminary injunctive relief—indeed, if
informing the public regarding an imminent lifetime appointment to the Supreme Court fails to
qualify for such relief, it is hard to imagine what would. Fix the Court is likely to succeed in
establishing that it is entitled to receive the requested records. Moreover, anything less than
immediate relief requiring DOJ to process Fix the Court’s FOIA request and produce the
requested records promptly would irreparably harm Fix the Court’s ability to use the requested
records to advance its mission and inform the general public in a timely fashion about the
nomination of Judge Kavanaugh. See Roth Decl. ¶¶ 5-7, 11-12. The requested injunction would
not harm DOJ’s interests or the interests of the general public; in fact, it is entirely consistent
with DOJ’s reportedly extraordinary efforts to convey material to the Senate for review and
would bolster the public interest by dramatically enhancing the public’s ability to evaluate a
nominee for the Supreme Court and to empower their senators to represent them accurately in
the confirmation process. Because all four of the relevant factors weigh in Fix the Court’s favor,
this Court should grant the requested injunctive relief compelling DOJ to process the request
promptly and produce non-exempt, responsive records on a timely basis.
I.

THIS COURT HAS JURISDICTION TO GRANT THE REQUESTED RELIEF.
The FOIA statute itself provides jurisdiction for this Court to consider this matter and

grant all necessary injunctive relief. It states:

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On complaint, the district court of the United States . . . in the
District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any
agency records improperly withheld from the complainant. In such
a case the court shall determine the matter de novo . . . .
5 U.S.C. § 552(a)(4)(B). When an agency fails to comply with the applicable time-limit
provisions in the FOIA statute, a requester “shall be deemed to have exhausted his administrative
remedies with respect to such request.” 5 U.S.C. § 552(a)(6)(C)(i); see also Oglesby v. Dep’t of
Army, 920 F.2d 57, 62 (D.C. Cir. 1990) (holding that a requester may bring suit if an agency fails
to comply with statutory time limits). This includes a failure to respond to a FOIA request within
the statutorily imposed timeframe. See Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d
61, 74 (D.D.C. 2006) (“failure to process FOIA requests in a timely fashion is ‘tantamount to
denial.’”) (quoting H.R. Rep. No. 93-876, at 6 (1974)). Fix the Court has therefore exhausted all
applicable administrative remedies, and this claim is ripe for adjudication.
II.

FIX THE COURT IS ENTITLED TO A PRELIMINARY INJUNCTION.
In considering a plaintiff’s request for injunctive relief, a court must weigh four factors:

(1) whether the plaintiff has a substantial likelihood of success on the merits; (2) whether the
plaintiff would suffer irreparable injury absent injunctive relief; (3) whether an injunction would
substantially injure other interested parties; and (4) whether the grant of an injunction would
further the public interest. Al-Fayed v. C.I.A., 254 F.3d 300, 303 (D.C. Cir. 2001); Serono Labs.,
Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). Consideration of these factors here
demonstrates Fix the Court’s entitlement to injunctive relief.
A.

Fix the Court Is Likely to Succeed on the Merits.

As a clear matter of established law, Fix the Court is entitled to a prompt determination
on its FOIA request, and the timely processing and production of non-exempt responsive
records. FOIA clearly and unambiguously provides that federal agencies must make records
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“promptly available to any person” who reasonably describes the records they seek in
accordance with established procedures. 5 U.S.C. § 552(a)(3)(A); see also 5 U.S.C.
§ 552(a)(6)(A)(i). DOJ has failed to meet these clear statutory obligations here.
As an initial matter, the material Fix the Court seeks—correspondence between Judge
Kavanaugh and the Office of Legal Policy—undoubtedly falls within the statutory category of
agency records that an agency must produce under FOIA. See U.S. Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 144-45 (1989) (defining “agency records” as materials “create[d] or
obtain[ed]” by the agency and within the agency’s control at the time the request is made). In
addition, the request reasonably described the records sought (specifying a timeframe and
individuals within OLP’s office from whom correspondence was sought) and complied with all
necessary procedures. See Roth Decl. ¶¶ 13-14; Ex. A at 2. Fix the Court is therefore more than
likely to succeed in establishing its entitlement to the requested records.
Moreover, even DOJ acknowledges that Fix the Court’s request warranted expedited
processing. Roth Decl. ¶ 17; Ex. B (DOJ letter granting expedition). Despite DOJ’s recognition
of the need for expedited processing, and despite DOJ’s decision to take ten extra days past the
default statutory deadline (see 5 U.S.C. § 552(a)(6)(B)(i)-(iii)), DOJ has still failed to comply
with its obligation to timely make a determination as to the scope of the records it intends to
produce or withhold and the reasons for any withholdings. See 5 U.S.C. § 552(a)(6)(A)(i);
Citizens for Responsibility and Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180, 182-83
(D.C. Cir. 2013) (“[T]he agency must at least indicate within the relevant time period the scope
of the documents it will produce and the exemptions it will claim with respect to any withheld
documents.”).

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Fix the Court will ultimately prevail in demonstrating its entitlement to a prompt
determination on its FOIA request and the timely processing and prompt disclosure of any nonexempt responsive records. FOIA provides clear statutory directives to agencies in responding to
FOIA requests, and DOJ has violated them. In the meantime, Fix the Court urgently needs DOJ
to fulfill its clear statutory obligations. Judge Kavanaugh has been nominated. Confirmation
hearings are underway. Senator McConnell seeks a rapid confirmation. Time is of the essence.
B.

Fix the Court Will Be Irreparably Harmed Absent the Requested Relief.

Fix the Court will be harmed irreparably if DOJ does not promptly process its request,
make a timely determination, and promptly produce non-exempt records, especially if further
delays prevent disclosure of these records until after the Senate has made a decision on Judge
Kavanaugh’s nomination. Only preliminary injunctive relief can address this urgent need and the
specter of irretrievably losing Fix the Court’s rights under FOIA. As this Circuit has long held,
“stale information is of little value.” Payne Enters., Inc. v. United States, 837 F.2d 486, 494
(D.C. Cir. 1988).
Accelerated review by this Court can ensure that unchecked delays do not irrevocably
deprive Fix the Court of the prompt determination on its request and the prompt disclosure of the
non-exempt responsive records to which it is entitled under FOIA. As this Court has previously
noted, “[t]o afford the plaintiff less than expedited judicial review would all but guarantee that
the plaintiff would not receive expedited agency review of its FOIA request.” Wash. Post, 459 F.
Supp. 2d at 66. Further unlawful delay in processing the request will irreparably harm the ability
of Fix the Court—and the public—to receive the determination and prompt production of
materials it is entitled to by law in time to inform the public discussion of and confirmation
hearings regarding Judge Kavanaugh’s record and its implications for the future of the United
States Supreme Court.
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Losing the ability to review Judge Kavanaugh’s record would be particularly harmful to
Fix the Court, whose mission is to promote transparency, accountability, and reform on the
Supreme Court. Roth Decl. ¶¶ 1-2. Fix the Court’s entire purpose is to use transparency to help
it, and the public, monitor the activities of federal courts and assess judges’ records. Id. ¶¶ 4-6. A
prompt determination and timely production of non-exempt records would equip Fix the Court to
enhance the public debate on these issues and to raise awareness of reforms Fix the Court
believes are necessary to improve the Supreme Court’s transparency and accountability. Id. ¶ 9.
These records therefore possess unique value while Judge Kavanaugh’s nomination is pending
with confirmation hearings in rapid progress, and that value will evaporate when the Senate
makes its decision on Judge Kavanaugh’s nomination and the public debate ends.
Our system of representative democracy depends upon an informed citizenry. That
principle animates FOIA. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (“[t]he
basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors accountable to the
governed.”). Fix the Court’s public advocacy embodies that principle. Its work strives to provide
the public with important information about the Supreme Court and, in this case, an individual
who may join it. Roth Decl. ¶¶ 5-6. The public can in turn use that information to participate in
robust public debate and to influence the nomination process, which is often shaped by
constituents’ communications to their elected officials about their support for or opposition to a
nominee. Members of the public cannot reliably fulfill that role or meaningfully participate in the
process without adequate information on which to base their opinions, and organizations like Fix
the Court cannot inform and participate in the public discourse about crucial government
institutions and reforms without access to information about government activities. In light of the

10

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Senate Majority Leader’s announced commitment to fast-track a decision on Judge Kavanaugh’s
nomination, there is an urgent need to inform the public—now—about his legal career and
qualifications for a lifetime appointment to the nation’s highest court.
If the DOJ is allowed to drag its feet even further in processing Fix the Court’s request
and the Senate confirms (or votes not to confirm) Judge Kavanaugh without the public having
the benefit of the insight contained in the records sought by this request, the public’s ability to
participate meaningfully in the debate will have been irreparably harmed, as will Fix the Court’s
interest in obtaining its statutorily-guaranteed access to these records and using those records in
support of its reform and accountability mission.
This case is therefore much like Washington Post v. Department of Homeland Security,
in which the plaintiff sought visitor logs for the Vice President’s office and residence, which the
plaintiff asserted would “assist the public in the degree to which lobbyists and special interest
representatives may have influenced policy decisions of the Bush administration.” 459 F. Supp.
2d at 65 (internal quotation marks omitted). The plaintiff explained that “[w]ith the midterm
elections looming, any delay in processing this request would deprive the public of its ability to
make its views known in a timely fashion.” Id. Issuing its opinion in October of 2006, this Court
concluded that “[b]ecause the urgency with which the plaintiff makes its FOIA request is
predicated on a matter of current national debate, due to the impending election, a likelihood for
irreparable harm exists if the plaintiff’s FOIA request does not receive expedited treatment.” Id.
at 75.3 The same is true here, with the Senate rushing to push through Judge Kavanaugh’s

3

In subsequent, unrelated litigation, the D.C. Circuit held that White House visitor logs are not
“agency records” for purposes of FOIA. See Judicial Watch v. U.S. Secret Service, 726 F.3d 208,
228-29 (D.C. Cir. 2013). However, nothing in that decision affects this Court’s analysis
regarding irreparable harm in Washington Post v. Department of Homeland Security, 459 F.
Supp. 2d 61 (D.D.C. 2006).
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nomination before the upcoming midterm elections in November. The nomination and
confirmation hearings have attracted widespread media and public interest and general
recognition that the Senate’s decision on his nomination has the potential to alter the balance of
the Supreme Court and the future of its jurisprudence on fundamental constitutional questions for
decades.4 The window for public education and discussion will be open only briefly, and it is
imperative that Fix the Court receive the records it seeks before that window closes. See Elec.
Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181, 1187 (N.D. Cal.
2008) (“Although, and perhaps because, the Court cannot predict the timing of passage of the
legislation in light of the ongoing debate in the legislature and with the Administration, the Court
finds that delayed disclosure of the requested materials may cause irreparable harm to a vested
constitutional interest in ‘the uninhibited, robust, and wide-open debate about matters of public
importance that secures an informed citizenry.’”) (quoting N.Y. Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)).
Indeed, by now it is almost axiomatic that “stale information is of little value.” Payne,
837 F.2d at 494; accord Calderon v. U.S. Dep’t of Ag., 236 F. Supp. 3d 96, 114 (D.D.C. 2017);
see also Dunlap v. Presidential Advisory Comm’n on Election Integrity, 286 F. Supp. 3d 96, 110
(D.D.C. 2017) (“District courts in this circuit have recognized that, where an obligation to
disclose exists, plaintiffs may suffer irreparable harm if they are denied access to information

4

See, e.g., Stephen Jessee & Neil Malhotra, The Chart That Shows the Supreme Court Will Be
Out of Step With the Country, N.Y. Times, July 12, 2018,
https://www.nytimes.com/2018/07/12/opinion/kavanaugh-supreme-court-right.html (arguing that
“[i]f Judge Brett Kavanaugh joins the Supreme Court, it will mark a sharp move to the right”);
Oliver Roeder & Amelia Thomson-DeVeaux, How Brett Kavanaugh Would Change The
Supreme Court, FiveThirtyEight (July 9, 2018, 9:34 PM),
https://fivethirtyeight.com/features/how-brett-kavanaugh-would-change-the-supreme-court/;
Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, Time,
July 12, 2018, http://time.com/5336621/brett-kavanaugh-supreme-court/.
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that is highly relevant to an ongoing public debate.” (citing Wash. Post, 459 F. Supp. 2d at 75;
EPIC, 416 F. Supp. 2d at 41)). Thus, “failure to process FOIA requests in a timely fashion is
‘tantamount to denial.’” Wash. Post, 459 F. Supp. 2d at 74 (quoting H.R. Rep. No. 93-876, at 6
(1974)). That is no doubt why courts in this jurisdiction have repeatedly issued preliminary
injunctions in FOIA cases where the requester seeks information urgently needed to inform a
pending or developing situation. See, e.g., id. at 74-75 (finding irreparable harm where requested
records could inform public opinion in advance of upcoming election); EPIC, 416 F. Supp. 2d at
40-41 (finding irreparable harm where requested records related to “current and ongoing debate
surrounding the legality of the Administration’s warrantless surveillance program”); Leadership
Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (finding urgency
requirement for expedition satisfied based on “upcoming expiration of the special provisions of
the Voting Rights Act in 2007”); Aguilera v. FBI, 941 F. Supp. 144, 151-52 (D.D.C. 1996)
(finding irreparable harm where requested records related to prisoner’s challenge to conviction
while already serving prison sentence); Cleaver v. Kelley, 427 F. Supp. 80, 81-82 (D.D.C. 1976)
(granting preliminary injunction for records needed for upcoming criminal trial); cf. Sai v.
Transp. Sec. Admin., 54 F. Supp. 3d 5, 10-11 (D.D.C. 2014) (finding no irreparable harm
because plaintiff offered no evidence that requested records would be of “vital public interest for
an upcoming congressional election or congressional or agency decision-making process
requiring public input” (internal citations and quotation marks omitted)).
As in many of those cases, Fix the Court’s ability to contribute to the public’s
understanding of the qualifications of the nominee to the Supreme Court will be irreparably
harmed if DOJ is not required to make a timely determination and promptly process Fix the
Court’s FOIA request and produce all responsive documents on an accelerated schedule. DOJ

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itself recognizes this reality, and through this motion, Fix the Court seeks judicial intervention to
ensure DOJ will comply with its obligations.
C.

The Requested Relief Will Not Burden Others’ Interests.

Fix the Court, the public, and the DOJ are aligned in their mutual strong interest in the
disclosure and review of Judge Kavanaugh’s record.
DOJ itself cannot claim to be harmed by an order compelling it to comply with its
statutory obligations. Indeed, DOJ has already recognized that Judge Kavanaugh’s nomination
demands review of his lengthy record and that that review will require allocation of additional
resources. Deputy Attorney General Rod J. Rosenstein contacted every United States Attorney
across the country to ask that they make potentially hundreds of federal prosecutors available to
assist with a prioritized review of government records pertaining to Judge Kavanaugh.5 Where
the government has already conceded the extraordinary value of these and similar records and
begun to marshal resources for their review, Fix the Court’s request for prompt processing and
production would not meaningfully increase DOJ’s burden.
Nor would granting Fix the Court relief unduly burden other FOIA requesters. As noted,
DOJ has assembled a team to prioritize review of Judge Kavanaugh’s records, and that team is
be drawn from attorneys who are not typically tasked with processing FOIA requests. Ordering
DOJ to promptly release all records responsive to Fix the Court’s request, therefore, need not
divert resources currently devoted to processing other FOIA requests, nor is there reason to
believe that vindication of Fix the Court’s rights to these records would delay or impair the rights
of any other FOIA requester to timely processing and disclosure of other records.

5

Katie Benner, Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual
Request, N.Y. Times, July 11, 2018, https://www.nytimes.com/2018/07/11/us/politics/rosensteinkavanaugh-document-review-prosecutors.html.
14

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Additionally, the whole purpose of the addition of the expedited processing provision in
1996 was to prioritize requesters with an urgent need for information. See EPIC, 416 F. Supp. 2d
at 36 (explaining 1996 amendment adding expedited processing requirements). Thus, Congress
itself contemplated that certain requesters would go to the head of the queue upon a showing of
compelling need—as DOJ agrees Fix the Court has made in this instance. See Roth Decl. ¶ 28;
Ex. B. Thus, an order from this Court that DOJ promptly process Fix the Court’s request and
provide all non-exempt responsive records on an accelerated schedule set by this Court would be
entirely consistent with the policy enacted by Congress and will not harm the interests of the
non-moving party or any other entity.
D.

The Public Interest Favors the Requested Relief.

A preliminary injunction is indispensable to protect the public’s right to government
transparency and essential interest in informed and meaningful participation in the Senate
confirmation process. Consequently, the requested relief clearly serves the public interest.
First, courts in this jurisdiction have long recognized that “there is an overriding public
interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate.”
Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); accord Wash. Post, 459 F.
Supp. 2d at 76. The very existence of the Freedom of Information Act is rooted in the selfevident premise that transparency and disclosure are a public benefit in a participatory
democracy. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
772-73 (1989); see also Ctr. to Prevent Handgun Violence v. U.S. Dep’t of the Treasury, 49 F.
Supp. 2d 3, 5 (D.D.C. 1999) (“There is public benefit in the release of information that adds to
citizens’ knowledge” of government activities).
But the public benefit of injunctive relief here extends far beyond the general public
interest in transparency and faithful adherence to FOIA. Congress enacted FOIA to ensure that
15

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citizens are able to participate in public debate in an informed manner, and this interest grows
with the gravity of public decisions at hand. See Robbins Tire, 437 U.S. at 242 (“The basic
purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors accountable to the
governed.”). There are few moments of public debate with urgency equal to that surrounding
selection of a new justice to serve on the nation’s highest court.
Courts have recognized the importance of timely disclosure when information is relevant
to elections. See, e.g., Wash. Post, 459 F. Supp. 2d at 74-75. The public’s need is arguably
stronger in advance of a Supreme Court confirmation, because the public will not have an
opportunity to revisit this decision post-confirmation with the benefit of either hindsight or
belated disclosures. Congress and the Executive Branch comprise myriad individuals and face
regular elections that afford the public regular opportunities to affirm or disavow their actions
and to shape their priorities; while each election is significant, there are natural limits on the
effects of each individual election and frequent opportunities for the public to redress errors or
reverse course. Not so for the third branch of government. Vacancies on the Supreme Court are
relatively rare, and lifetime appointments render the decisions on how to fill them all but
irrevocable.
Although the public enjoys far less ability to influence its highest court than it wields
over the political branches, the Supreme Court, and each of its justices, exerts acute influence
over the day-to-day lives of the American public. As one of only nine justices on a court that has
been, of late, sharply divided, Judge Kavanaugh would be in a position to have significant impact
for a generation with regard to fundamental rights and equal protection of the laws and to exert
substantial, even dispositive, influence on resolution of cases guiding the relationship between

16

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the branches of government and defining the limits of executive and legislative power. The
public has only one opportunity to assess his fitness for this august position and to convey its
views and concerns to the senators entrusted with weighing his nomination. A preliminary
injunction ensuring timely processing and disclosure of records reflecting Judge Kavanaugh’s
record of government service maximizes that public’s ability to avail itself of that opportunity.
CONCLUSION
For the foregoing reasons, Plaintiff Fix the Court respectfully requests that this Court
grant a preliminary injunction requiring DOJ to make a timely determination on Fix the Court’s
FOIA request and promptly process and produce all non-exempt responsive records and an index
justifying the withholding of any withheld records by such date as the Court deems appropriate.

Dated: September 6, 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
/s/ Hart W. Wood
Hart W. Wood
(D.D.C. Bar application pending)
D.C. Bar No. 1034361
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
beth.france@americanoversight.org
austin.evers@americanoversight.org
hart.wood@americanoversight.org
Counsel for Plaintiff Fix the Court

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CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2018, I caused a copy of the foregoing
Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction to be hand-delivered
to defendant at the following address:
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
In addition, a courtesy copy has been delivered to:
Jessie K. Liu
U.S. Attorney for the District of Columbia
555 4th Street NW
Washington, DC 20530
Dated: September 6, 2018

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

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FIX THE COURT,
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendants.

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Case No. 18-cv-2091

DECLARATION OF GABE ROTH
I, GABE ROTH, hereby declare as follows:
1.

I am the Executive Director of Fix the Court, a national, non-partisan grassroots

organization created to promote accountability, transparency, and reform at the United States
Supreme Court.
Fix the Court’s Mission and Contributions
2.

Fix the Court focuses solely on examining activities of the federal judiciary—

especially the Supreme Court—including educating the public regarding the Supreme Court’s
justices and activities, and proposing reforms to improve transparency and public confidence.
3.

Fix the Court undertakes a range of activities to support its mission. These include

obtaining and publicizing financial disclosure forms filed by Supreme Court justices; requesting
prompt release of audio recordings of oral arguments; providing commentary and analysis on the
justices’ financial disclosures and recusals; and identifying opportunities for public action and
engagement.

 Case 1:18-cv-02091 Document 4-2 Filed 09/06/18 Page 2 of 6

4.

Through its work, Fix the Court has made numerous concrete contributions to

making the federal judiciary more accessible, open, and accountable. These include requesting
and being granted live online audio for the D.C. Circuit’s hearing in Garza v. Hargan; working
with senators on a bipartisan basis to seek same-day audio for all October Term Supreme Court
proceedings in 2018; securing digital access for the public to judges’ and justices’ financial
disclosure reports; and increasing public awareness of conflicts issues involving stock ownership
by federal judges and the potential for divestitures to reduce the need for recusals.
5.

With regard to nominations to the Supreme Court, though Fix the Court has never

taken a position on whether a nominee should be confirmed by the Senate and never will, it does
focus on helping the public and the Senate assess judges’ records and fitness to be justices of the
Supreme Court and their commitment to the values and reforms Fix the Court advocates.
6.

Specifically, Fix the Court researches likely nominees and identifies sources of

relevant records regarding their credentials and jurisprudence; submits public information
requests to obtain these records; summarizes, analyzes, and distributes records it receives; and
educates the public about the nominee and the confirmation process, including how to contact
senators to request that they probe certain topics in the confirmation process or ultimately
support or oppose a nominee.
7.

Contributing to the public discourse and promoting public engagement are key

components of Fix the Court’s mission. Fix the Court collaborates with individuals and
organizations nationwide—and across the political spectrum—to raise awareness of these issues
and advocate for reforms. For example, Fix the Court has partnered with the Federalist Society
and the American Constitution Society to co-host events at a dozen law schools.

2

 Case 1:18-cv-02091 Document 4-2 Filed 09/06/18 Page 3 of 6

8.

In my role as Executive Director, I make frequent media appearances to discuss

Fix the Court’s work, to inform the public discourse regarding the Supreme Court’s activities,
and to advocate for reforms, such as increasing media and public access to the Court’s
proceedings, strengthening protections against conflicts of interest, and making financial
disclosures more robust and readily available for public review.
9.

Fix the Court’s ability to obtain public records on a prompt basis is crucial to its

goals of promoting accountability, transparency, and reform at the Supreme Court and assessing
nominees’ fitness to join the Court. Prompt responses to public records requests and timely
production of relevant documents are crucial to its ability to inform and enhance the public
debate surrounding these issues, and to raise awareness of the reforms Fix the Court advocates.
Fix the Court’s FOIA Request to DOJ
10.

In light of President Trump’s nomination of Judge Brett M. Kavanaugh to the

Supreme Court, Fix the Court submitted a Freedom of Information Act (“FOIA”) request to the
U.S. Department of Justice’s (“DOJ”) Office of Legal Policy (“OLP”) on July 24, 2018, seeking
records related to Judge Kavanaugh’s past public service with the White House, where he served
in associate counsel and assistant to the staff secretary roles from 2001 to 2006, including
serving on the Judicial Selection Committee along with OLP staff. A true and correct copy of an
email chain between myself and Kim Kochurka, a Government Information Specialist at DOJ’s
Office of Information Policy (“OIP”), containing the July 24, 2018 FOIA request and subsequent
correspondence, is attached hereto as Exhibit A.
11.

Fix the Court considers this information vital to its mission to contribute

information and analysis to the public discourse and confirmation hearings concerning Judge
Kavanaugh’s nomination to the Supreme Court.

3

 Case 1:18-cv-02091 Document 4-2 Filed 09/06/18 Page 4 of 6

12.

Fix the Court sought information from DOJ concerning Judge Kavanaugh soon

after his nomination so that Fix the Court would have relevant data available to share with the
public in advance of Judge Kavanaugh’s confirmation hearings.
13.

Specifically, Fix the Court requested “all correspondence sent by Office of Legal

Policy personnel to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to
Office of Legal Policy personnel from January 20, 2001, to May 30, 2006,” noting that Judge
Kavanaugh had served in the White House during this timeframe. Ex. A at 2.
14.

For clarity, Fix the Court noted in its request that responsive records should

include “all memos and all e-mail, print or other correspondence and attachments including
instances where [Judge Kavanaugh] was merely carbon copied (CC’d).” Id.
15.

In its request, Fix the Court requested expedition because the “American public

has a substantial and urgent need to have access to public records concerning Mr. Kavanaugh’s
public service record to inform its understanding of the impending confirmation hearings.” Id.
16.

In email correspondence on August 1, 2018, Ms. Kochurka advised Fix the Court

that the request was “already in the queue, received on July 24th and assigned to an analyst for
processing . . . .” Id. at 1.
17.

On August 3, 2018, Vanessa R. Brinkmann, Senior Counsel at OIP, sent an

acknowledgment letter to Fix the Court stating that she had “determined that [Fix the Court’s]
request for expedited processing should be granted.” A true and correct copy of Ms.
Brinkmann’s letter granting Fix the Court’s request for expedited processing, is attached hereto
as Exhibit B.

4

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18.

On August 22, 2018, I asked DOJ for a status update on the FOIA request via

telephone. DOJ responded that expedition had been granted and that DOJ was working on the
request, but that there was no other update.
19.

On September 4, 2018, I spoke with Douglas Hibbard, Initial Request Staff Chief

at OIP, via telephone and asked for an update on the status of the FOIA request. Mr. Hibbard
stated that, because the request had been placed in the expedited queue and had been deemed a
“narrow” request, there was no way to further expedite the release of documents. He further
stated that it might be possible for DOJ to produce documents on a rolling basis, but he gave no
indication of what would actually occur.
20.

As of the date of this Declaration, Fix the Court has received no further

information from DOJ concerning the scope of records to be produced in response to its request,
nor has Fix the Court received a single document in response to its request.
Judge Kavanaugh’s Confirmation Hearings
21.

On September 4, 2018, Senate confirmation hearings began regarding the

nomination of Judge Kavanaugh to the U.S. Supreme Court.
22.

In light of the beginning of the Senate’s confirmation hearings, Fix the Court’s

need for a determination on its FOIA request to DOJ is all the more urgent. Fix the Court
considers it essential that as much information as possible is available for public consumption
prior to the conclusion of Judge Kavanaugh’s confirmation hearings, in the interest of a fully
informed confirmation process.
23.

As Senate Republicans have indicated they will act quickly to confirm Judge

Kavanaugh, Fix the Court believes that time is of the essence with respect to the records it has
requested from DOJ.

5

 Case 1:18-cv-02091 Document 4-2 Filed 09/06/18 Page 6 of 6

24.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

is true and correct.
Dated: September 6, 2018

___________________________________
Gabe Roth

6