Case 1:18-cv-02130 Document 1 Filed 09/13/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
Defendant. )
)
)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street
19th Floor
New York, NY 10005

Case No. 18-cv-2130

COMPLAINT
1.

Plaintiff Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”)

brings this action against the U.S. Department of Health and Human Services 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).

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4.

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

of FOIA, Lambda Legal 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
continuing to withhold agency records and ordering the production of agency records improperly
withheld.
5.

Because Defendant has failed to respond to Lambda Legal’s request for expedited

processing, Lambda Legal is now entitled to judicial review of that claim under 5 U.S.C.
§ 552(a)(6)(E)(iii).
PARTIES
6.

Plaintiff Lambda Legal is a non-profit, section 501(c)(3) organization whose

mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals,
transgender people, and everyone living with HIV. To advance this mission, Lambda Legal leads
high-impact public education campaigns, advocates for public policy at the local, state, and
federal levels, and engages in impact litigation. Through its Fair Courts Project, Lambda Legal
provides the public with information and tools to counter harmful attacks on the courts that
threaten LGBT and HIV-related civil rights. Lambda Legal’s Fair Courts Project advances this
mission through creation and dissemination of reports, analysis, a curriculum for legal
professionals, “Know Your Rights” materials, an advocacy toolkit, and other informational and
education materials.
7.

Defendant the U.S. Department of Health and Human Services (“HHS”) 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). HHS has
possession, custody, and control of the records that Lambda Legal seeks.

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STATEMENT OF FACTS
8.

On August 10, 2018, Lambda Legal submitted a FOIA request to HHS seeking:
All records reflecting communications (including emails, email
attachments, text messages, instant messages (such as AOL Instant
Messenger), telephone call logs, calendar invitations/entries, meeting
notices, meeting agendas, informational material, draft legislation, talking
points, any handwritten or electronic notes taken during any oral
communications, summaries of any oral communications, or other
materials) between Brett Kavanaugh and Secretary Tommy Thompson,
Secretary Michael Leavitt, or Assistant Secretary Wade Horn regarding
media stories by Margaret (Maggie) Gallagher or Michael McManus. In
addition to communications regarding published media stories, this request
encompasses communications discussing proposals for media stories,
solicitation of media stories, consultation on media stories, and actual or
potential payment for writing media stories, regardless of whether each
story was ultimately published.

A true and correct copy of this request is attached hereto as Exhibit A and incorporated
herein.

9.

Lambda Legal’s request also sought expedited processing under the FOIA statute

and HHS regulations. See id. at 6-8.
10.

As of the date of this Complaint, Lambda Legal has not received any

communications from HHS regarding its FOIA request.
Exhaustion of Administrative Remedies
11.

As of the date of this complaint, HHS has failed to (a) notify Lambda Legal of

any determination regarding Lambda Legal’s request for expedited processing of its request; (b)
notify Lambda Legal of any determination regarding its FOIA request, including the scope of
any responsive records HHS intends to produce or withhold and the reasons for any
withholdings; or (c) produce the requested records or demonstrate that the requested records are
lawfully exempt from production.

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12.

Through HHS’s failure to respond to Lambda Legal’s request for expedited

processing within the time period required by law, Lambda Legal has exhausted its
administrative remedies as to that issue and seeks immediate judicial review.
13.

Through HHS’s failure to respond to Lambda Legal’s FOIA requests within the

time period required by law, Lambda Legal has constructively exhausted its administrative
remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Grant Expedited Processing
14.

Lambda Legal repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
15.

Lambda Legal properly requested records within the possession, custody, and

control of HHS on an expedited basis.
16.

HHS is an agency subject to FOIA, and it must process FOIA requests on an

expedited basis pursuant to the requirements of FOIA and its regulations.
17.

The records sought relate to an activity of the federal government about which

there is an urgent need to inform the public, and Lambda Legal is primarily engaged in
disseminating information to the public. Therefore, Lambda Legal’s FOIA requests justified
expedited processing under FOIA and HHS’s regulations.
18.

HHS failed to ensure that a determination of whether to provide expedited

processing was made or that notice of such determination was provided to Lambda Legal within
ten days after the date of the FOIA requests.
19.

HHS’s failure to grant expedited processing of the FOIA requests violated FOIA

and HHS regulations.

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20.

Plaintiff Lambda Legal is therefore entitled to declaratory and injunctive relief

requiring HHS to grant expedited processing of its FOIA requests
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
21.

Lambda Legal repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
22.

Lambda Legal properly requested records within the possession, custody, and

control of HHS.
23.

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

search for requested records.
24.

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

those records which are responsive to Lambda Legal’s FOIA requests.
25.

HHS’s failure to conduct an adequate search for responsive records violates

26.

Plaintiff Lambda Legal is therefore entitled to injunctive and declaratory relief

FOIA.

requiring Defendant to promptly make reasonable efforts to search for records responsive to
Lambda Legal’s FOIA requests.
COUNT III
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
27.

Lambda Legal repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
28.

Lambda Legal properly requested records within the possession, custody, and

control of HHS.

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29.

HHS 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.
30.

On information and belief, HHS is wrongfully withholding non-exempt agency

records requested by Lambda Legal by failing to produce non-exempt records responsive to its
FOIA requests.
31.

On information and belief, HHS is wrongfully withholding non-exempt agency

records requested by Lambda Legal by failing to segregate exempt information in otherwise nonexempt records responsive to Lambda Legal’s FOIA requests.
32.

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

33.

Plaintiff Lambda Legal 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, Lambda Legal respectfully requests the Court to:
(1) Order Defendant to expedite the processing of Lambda Legal’s FOIA requests
identified in this Complaint;
(2) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to Lambda Legal’s FOIA request;
(3) 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

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Lambda Legal’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(4) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to Lambda Legal’s FOIA requests;
(5) Award Lambda Legal 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
(6) Grant Lambda Legal such other relief as the Court deems just and proper.

Dated: September 13, 2018

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
/s/ John. E. Bies
John E. Bies
D.C. Bar No. 483730
/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
john.bies@americanoversight.org
austin.evers@americanoversight.org
Counsel for Plaintiff Lambda Legal

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 Case 1:18-cv-02130 Document 3-1 Filed 09/13/18 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES,
)
)
Defendants. )
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.,

Case No. 18-2130

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION
FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

 Case 1:18-cv-02130 Document 3-1 Filed 09/13/18 Page 2 of 24

TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................................... i
TABLE OF AUTHORITIES.................................................................................................... ii
INTRODUCTION .................................................................................................................... 1
STATEMENT OF FACTS ....................................................................................................... 2
ARGUMENT ............................................................................................................................ 4
I.

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

II. PLAINTIFF IS ENTITLED TO A TEMPORARY RESTRAINING ORDER, OR
IN THE ALTERNATIVE, A PRELIMINARY INJUNCTION. ......................................... 7
A.

Lambda Legal Is Likely to Succeed on the Merits. ...................................................... 8

B.

Plaintiff Will Be Irreparably Harmed Absent the Requested Relief. ........................... 11

C.

The Requested Relief Will Not Burden Others’ Interests. .......................................... 16

D.

The Public Interest Favors the Requested Relief. ....................................................... 17

CONCLUSION ....................................................................................................................... 19

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TABLE OF AUTHORITIES

CASES
Aguilera v. FBI, 941 F. Supp. 144, 151-52 (D.D.C. 1996)......................................................... 16
Al-Fayed v. C.I.A., 254 F.3d 300, 303 (D.C. Cir. 2001) ............................................................... 8
Calderon v. U.S. Dep’t of Ag., 236 F. Supp. 3d 96, 114 (D.D.C. 2017) ..................................... 15
Citizens for Responsibility and Ethics in Wash. v. Fed. Elec. Comm’n, 711 F.3d 180, 182-83
(D.C. Cir. 2013) ...................................................................................................................... 8
Cleaver v. Kelley, 427 F. Supp. 80, 81-82 (D.D.C. 1976) .......................................................... 16
Ctr. to Prevent Handgun Violence v. U.S. Dep’t of the Treasury, 49 F. Supp. 2d 3, 5 (D.D.C.
1999) .................................................................................................................................... 17
Dunlap v. Presidential Advisory Comm’n on Election Integrity, 286 F. Supp. 3d 96, 110 (D.D.C.
2017) .................................................................................................................................... 15
Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181, 1187
(N.D. Cal. 2008) ................................................................................................................... 15
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice (“EPIC”), 416 F. Supp. 2d 30, 40-41 (D.D.C.
2006) .................................................................................................................................... 12
Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977).......................................... 17
Judicial Watch v. U.S. Secret Service, 726 F.3d 208, 228-29 (D.C. Cir. 2013) .......................... 14
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................... 2, 10
Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) ........... 15
Lofton v. District of Columbia, 7 F. Supp. 3d 117, 120 (D.D.C. 2013) ........................................ 8
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) ............................................... 13
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) ............................................................... 15
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ............................................................................. 2
Oglesby v. Dep’t of Army, 920 F.2d 57, 62 (D.C. Cir. 1990) ....................................................... 7
Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) ............................ 12, 15
Romer v. Evans, 517 U.S. 620 (1996) ......................................................................................... 2
Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 10-11 (D.D.C. 2014) ........................................... 16
Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998) ..................................... 8
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1989)
............................................................................................................................................. 17
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) ............................................ 8
United States v. Windsor, 570 U.S. 744 (2013) ........................................................................... 2
Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61 (D.D.C. 2006) ......................... passim
STATUTES
5 U.S.C. § 552(a)(3)(A) .............................................................................................................. 8
5 U.S.C. § 552(a)(4)(B) .............................................................................................................. 7
5 U.S.C. § 552(a)(6)(A)(i) .......................................................................................................... 8
5 U.S.C. § 552(a)(6)(C)(i)........................................................................................................... 7
5 U.S.C. § 552(a)(6)(E)(i)(I)-(II)................................................................................................. 9
5 U.S.C. § 552(a)(6)(E)(iii)..................................................................................................... 7, 9
5 U.S.C. § 552(a)(6)(E)(v) .......................................................................................................... 9
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5 U.S.C. 552(a)(6)(E)(1) ............................................................................................................. 3
REGULATIONS
5 C.F.R. § 1303.10(d)(ii) ............................................................................................................ 3
45 C.F.R. § 5.27(b)(2) ............................................................................................................ 3, 4
OTHER AUTHORITIES
Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, Time,
July 12, 2018 ....................................................................................................................... 14
Charlotte Clymer, HRC Opposes Kavanaugh, Trump’s Pick to Undermine LGBTQ Rights,
Reproductive Rights, and Health Care, Human Rights Campaign, July 9, 2018 ................... 10
Fair Courts Project, Lambda Legal ....................................................................................... 4, 11
H.R. Rep. No. 93-876 ........................................................................................................... 7, 15
Jennifer Rubin, The Senate Must Prevent Kavanaugh’s Nomination from Corrupting the
Supreme Court, Wash. Post, July 30, 2018 ............................................................................ 10
Jordain Carney, Grassley Moves to Set up Committee Vote on Kavanaugh Nomination, The Hill
(Sept.10, 2018, 5:29 PM) ....................................................................................................... 5
Jordain Carney, Grassley Requests Some But Not All of Kavanaugh Papers at Bush White House,
The Hill (July 27, 2018, 6:57 PM)........................................................................................... 5
Lambda Legal Files FOIA Request After Trump Administration Restricts Use of Seven Words at
CDC, Lambda Legal, Dec. 20, 2017...................................................................................... 11
Melissa Quinn, Chuck Grassley Formally Requests Kavanaugh White House Records Amid
Document Battle, Wash. Examiner (July 27, 2018, 7:51 PM) ................................................ 10
Oliver Roeder & Amelia Thomson-DeVeaux, How Brett Kavanaugh Would Change The
Supreme Court, FiveThirtyEight (July 9, 2018, 9:34 PM) ..................................................... 14
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 ........................................................................ 14
We Reviewed All of Judge Kavanaugh’s Record. Here’s What We Found, LAMBDA LEGAL, July
9, 2018.................................................................................................................................. 10

iii

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INTRODUCTION
In August 2018, Plaintiff Lambda Legal Defense and Education Fund, Inc. (“Lambda
Legal”), the nation’s oldest and largest national legal organization dedicated to achieving full
recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and everyone
living with HIV, submitted a Freedom of Information Act (“FOIA”) request to the U.S.
Department of Health and Human Services (“HHS”). This request sought records relating to the
career of Judge Brett Kavanaugh, who has been nominated to the United States Supreme Court
and whose confirmation hearings were held from September 4, 2018 through September 7, 2018.
Specifically, Lambda Legal seeks records related to Judge Kavanaugh’s potential involvement in
payments by HHS during the George W. Bush Administration to columnists, in exchange for
those columnists writing media pieces in support of conservative positions on marriage,
including opposition to marriage of same-sex couples. The records Lambda Legal seeks are
essential for it to advance its mission of advancing civil rights through advocacy and litigation,
as the shifting composition of the Supreme Court will directly affect the future of recent, key
precedents protecting LGBTQ people and shape jurisprudence on these issues for decades.
Disclosure of these records is also critical to inform the public regarding a pivotal lifetime
appointment to the nation’s highest court.
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 regard to LGBTQ issues, Judge Kavanaugh’s nomination to
replace Justice Anthony Kennedy is particularly important, because Justice Kennedy drafted the

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majority opinion in key Supreme Court cases protecting civil rights of LGBTQ people.1 The
justice who replaces him will inherit and could threaten that legacy. Between the significance of
Judge Kavanaugh’s nomination and the rapid pace with which the Senate is considering it, there
is an urgent need to inform the public regarding Judge Kavanaugh’s history and views regarding
civil rights and equal protection for LGBTQ people. His nomination has also provoked extensive
media interest, and the circumstances surrounding his selection and the Senate’s accelerated
consideration of it raise questions affecting the public’s confidence in the government’s integrity.
Given these concerns and rapidly approaching confirmation proceedings, Lambda Legal seek to
compel HHS to process Lambda Legal’s request promptly and to produce all responsive, nonexempt material. As a key advocate for LGBTQ civil rights, Lambda Legal has only one brief
opportunity to sift through Judge Kavanaugh’s record, to develop its views of Judge
Kavanaugh’s nomination, and to inform the American public of the consequences Judge
Kavanaugh’s confirmation would have for LGBTQ rights. Lambda Legal seeks immediate
injunctive relief to protect its vital interests and the interests of the public.
STATEMENT OF FACTS
On August 10, 2018, Lambda Legal submitted by electronic mail a FOIA request to HHS
seeking:
All records reflecting communications (including emails, email attachments,
text messages, instant messages (such as AOL Instant Messenger), telephone
call logs, calendar invitations/entries, meeting notices, meeting agendas,
informational material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of any oral
communications, or other materials) between Brett Kavanaugh and Secretary
Tommy Thompson, Secretary Michael Leavitt, or Assistant Secretary Wade
Horn regarding media stories by Margaret (Maggie) Gallagher or Michael
McManus. In addition to communications regarding published media stories,
1

These include Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003);
United States v. Windsor, 570 U.S. 744 (2013); and Obergefell v. Hodges, 135 S. Ct. 2584
(2015).
2

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this request encompasses communications discussing proposals for media
stories, solicitation of media stories, consultation on media stories, and actual
or potential payment for writing media stories, regardless of whether each story
was ultimately published.
Compl. ¶ 8, ECF No. 1; Ex. A; Declaration of Sasha Buchert (“Buchert Decl.”) ¶ 5.2
Lambda Legal also sought expedited processing of its request. Lambda Legal certified
that the requested records are needed quickly based on an “urgency to inform the public about an
actual or alleged federal government activity.” 5 U.S.C. 552(a)(6)(E)(1); 45 C.F.R. § 5.27(b)(2).
In support of its requests for expedited processing, Lambda Legal noted that Senate Majority
Leader Mitch McConnell had previously stated that the Senate would move quickly to confirm
Judge Kavanaugh; that the public had a vested interest in examining Judge Kavanaugh’s lengthy
record before he was confirmed to a lifetime appointment; and that an alternative avenue for
obtaining information about key portions of Judge Kavanaugh’s career in the executive branch—
relying on the Senate Judiciary Committee to request and review all relevant material as part of
its constitutional responsibility to provide advice and consent—had been foreclosed by the
Committee chairman’s omission of critical periods of Judge Kavanaugh’s career from the
Committee’s request for records. Ex. A at 6; Buchert Decl. ¶ 5. As Lambda Legal further
described, during that critical window of Judge Kavanaugh’s service in the Bush Administration,
that Administration took significant positions and actions affecting LGBTQ rights. Ex. A at 7;
Buchert Decl. ¶ 5. These included advocating for a constitutional amendment banning gay
marriage and announcing an intention to veto LGBTQ hate crime legislation under consideration
in Congress. Id.
In further support of its requests for expedited processing, Lambda Legal certified that it
is “primarily engaged in disseminating information to the public.” 5 C.F.R. § 1303.10(d)(ii); 45
2

Lettered exhibits referenced herein are attached to the Complaint, ECF. No. 1.
3

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C.F.R. § 5.27(b)(2). Lambda Legal provided several facts in support of this certification, including
that it has a history of filing FOIA requests to ensure government accountability, that it analyzes the
material received and uses it to create reports, press releases, and other content that it distributes
through its website and social media accounts, which have hundreds of thousands of followers. Ex.

A at 7-8; Buchert Decl. ¶ 5. Lambda Legal also referenced its Fair Courts project, a public advocacy
and education initiative to “ensure that courts afford LGBTQ rights due consideration based on

constitutional and legal principles,” and provided a link reflecting the many publications and
resources available, including a curriculum for judges, attorneys, and other legal professionals; a
“Know Your Rights” document for the public; an advocacy toolkit; and many blog posts
containing analysis and advocacy. Ex. A at 6; Buchert Decl. at ¶ 3.3
As of the date of this filing, HHS has not communicated to Lambda Legal any
determinations with regard to Lambda Legal’s request for records or its request for expedited
processing.
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 moved rapidly toward
confirmation, completing hearings between September 4, 2018, and September 7, 2018.4 The
Chairman of the Judiciary Committee reportedly plans to schedule a Committee vote on Judge

3

See also Fair Courts Project, Lambda Legal, https://www.lambdalegal.org/issues/fair-courtsproject (last visited September 11, 2018).
4
See, e.g., Charlie Savage & Sheryl Gay Stolberg, As Hearings End, Democrats Accuse Supreme
Court Nominee of Dissembling, N.Y. Times, Sept. 7, 2018,
https://www.nytimes.com/2018/09/07/us/politics/brett-kavanaugh-confirmation-hearings.html.
4

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Kavanaugh’s nomination as soon as the week of September 17, 2018.5 Lambda Legal’s FOIA
request seek records concerning Judge Kavanaugh’s past public service as it relates to watershed
moments affecting LGBTQ rights during the George W. Bush Administration, which will cast
considerable light on the impact of his potential appointment to the Supreme Court on the future
of jurisprudence affecting LGBTQ equality.
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. Senator Grassley, the Chairman of the Judiciary
Committee, has declined to request Judge Kavanaugh’s full record, conspicuously omitting
Judge Kavanaugh’s time as Staff Secretary to President George W. Bush.6 With regard to
LGBTQ issues, this omission is glaring. Judge Kavanaugh’s time in the Bush Administration
overlapped with several important moments and policy determinations in the movement to
protect the civil rights of LGBTQ people, and his views and actions regarding them are highly
relevant to assessing how he could be expected to handle issues affecting LGBTQ people as a
Supreme Court Justice.
Given the exigency of this nomination; its direct relevance to Lambda Legal’s public
education and advocacy work, including through its Fair Courts Project; the widespread media
interest in the nomination; and the clear concerns for the LGBTQ community stemming both
from Judge Kavanaugh’s past government service and from the Senate’s and the White House’s

5

Jordain Carney, Grassley Moves to Set up Committee Vote on Kavanaugh Nomination, The Hill
(Sept.10, 2018, 5:29 PM), http://thehill.com/homenews/senate/405963-grassley-moves-to-set-upcommittee-vote-on-kavanaugh-nomination.
6
Jordain Carney, Grassley Requests Some But Not All of Kavanaugh Papers at Bush White
House, The Hill (July 27, 2018, 6:57 PM), http://thehill.com/blogs/floor-action/senate/399296grassley-request-some-but-not-all-of-kavanaugh-papers-at-bush-white.
5

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rushed handling of his nomination and confirmation, Lambda Legal is entitled to prompt
processing of its request and disclosure of the records it seeks. Faced with a rapidly advancing
confirmation process, Lambda Legal now asks the Court to enjoin HHS from irreparably
harming both Lambda Legal and the public interest through ongoing failure to make the
determination on its request as required by law and the resulting wrongful withholding of
records.
Lambda Legal meets the requirements for a temporary restraining order, or in the
alternative, preliminary injunctive relief. It is likely to succeed in establishing that it is entitled to
expedited processing of its requests. Moreover, anything less than immediate relief requiring
Defendant to process Lambda Legal’s FOIA request and produce the requested records as soon
as practicable would irreparably harm Lambda Legal’s ability to obtain and use the requested
records to inform the public debate regarding Judge Kavanaugh and the impact his confirmation
would have on protections for LGBTQ rights by the federal courts. The requested injunction
would not harm HHS’s interests or the interests of the general public; in fact, it is entirely
consistent with their statutory obligations in light of the urgency surrounding Judge Kavanaugh’s
nomination and would bolster the public interest by dramatically enhancing the public’s ability
to evaluate a nominee for the Supreme Court, convey opinions to their senators, and to empower
their senators to represent them accurately in the confirmation process. Because all four of the
relevant factors weigh in Lambda Legal’s favor, this Court should grant the requested injunctive
relief compelling HHS to process the request promptly and produce non-exempt, responsive
records on an expedited 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:
6

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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)). The Court’s power to review also extends
to an agency’s denial or inaction on a request for expedited processing: FOIA states that
“[a]gency action to deny or affirm denial of a request for expedited processing pursuant to this
subparagraph, and failure by an agency to respond in a timely manner to such a request shall be
subject to judicial review under paragraph (4).” 5 U.S.C. § 552(a)(6)(E)(iii); see also Al-Fayed v.
CIA, 254 F.3d 300, 308 (D.C. Cir. 2001) (“a district court must review de novo an agency’s
denial of a request for expedition under FOIA”). Lambda Legal has therefore exhausted all
applicable administrative remedies, and this claim is ripe for adjudication.
II.

PLAINTIFF IS ENTITLED TO A TEMPORARY RESTRAINING ORDER, OR
IN THE ALTERNATIVE, 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

7

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further the public interest. Al-Fayed, 254 F.3d at 303; Serono Labs., Inc. v. Shalala, 158 F.3d
1313, 1317-18 (D.C. Cir. 1998); see also Lofton v. District of Columbia, 7 F. Supp. 3d 117, 120
(D.D.C. 2013) (“In determining whether to issue a temporary restraining order, the Court must
apply the same standard that is applied to preliminary injunctions.”).
A.

Lambda Legal Is Likely to Succeed on the Merits.

Lambda Legal is entitled to prompt processing of its FOIA request and production of
non-exempt responsive records as soon as practicable. FOIA clearly and unambiguously
provides that federal agencies must make records “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). As an initial matter, the material Lambda Legal seeks—correspondence between
Judge Kavanaugh and HHS personnel—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 small number of
individuals at HHS whose records are sought and clearly describing a concrete subject matter
and types of records sought) and complied with all necessary procedures. See Ex. A at 2; Buchert
Decl. ¶ 5.
Moreover, HHS has clearly not satisfied FOIA’s requirement that HHS comply
“promptly” with Lambda Legal’s request. Once Lambda Legal submitted its initial FOIA request
to HHS on August 10, 2018, it was entitled to a determination by the agency within twenty
working days as to the scope of the records it intends to produce or withhold and the reasons for
any withholdings. 5 U.S.C. § 552(a)(6)(A)(i); Citizens for Responsibility and Ethics in Wash. v.
Fed. Elec. Comm’n, 711 F.3d 180, 182-83 (D.C. Cir. 2013) (“[T]he agency must at least indicate
8

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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.”). More than twenty working days have
elapsed, but Lambda Legal has received no determination and no records.
Lambda Legal meets the requirements for a valid FOIA request, which is all that is
required to entitle it to prompt determination and disclosure. However, Lambda Legal further
meets the requirements to trigger expedited processing and production of records “as soon as
practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). FOIA requires agencies to “promulgate regulations . . .
providing for expedited processing of requests for records (I) in cases in which the [requester]
demonstrates a compelling need; and (II) in other cases determined by the agency.” 5 U.S.C.
§ 552(a)(6)(E)(i)(I)-(II). FOIA further provides that “compelling need” exists when there is
“urgency to inform the public concerning actual or alleged Federal Government activity,” when
the requester is a “person primarily engaged in disseminating information.” 5 U.S.C.
§ 552(a)(6)(E)(v). Accordingly, HHS has promulgated a regulation providing for expedited
processing under these circumstances. 45 C.F.R. § 5.27(b)(2).
Judge Kavanaugh’s nomination presents clear “urgency to inform the public concerning
actual or alleged Federal Government activity,” namely the Senate confirmation process and the
future composition and direction of the U.S. Supreme Court. The nomination is urgent both
because of the gravity of any change in the composition of the Supreme Court and because the
confirmation process is hurtling toward completion. Judge Kavanaugh’s views and advice
concerning LGBTQ issues during his time at the White House have direct relevance to the
public’s understanding of his prospective treatment of similar issues likely to come before the
Court in coming years. Justice Kennedy, whose seat Judge Kavanaugh has been nominated to
fill, has been the author of a number of crucial decisions advancing and defending LGBTQ

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rights.7 Judge Kavanaugh’s record, in contrast, has been criticized (by Lambda Legal and others)
as hostile to LGBTQ and other civil rights.8 Therefore, the requested records are vitally
important to provide a robust picture of Judge Kavanaugh’s positions on cases implicating
LGBTQ issues that he is likely to encounter as a Supreme Court Justice. Yet the Chairman of the
Senate Judiciary Committee has declined to request records from Judge Kavanaugh’s tenure as
President Bush’s staff secretary,9 despite the facts that Judge Kavanaugh has admitted that those
years were “‘in many ways among the most instructive’ for his career as a judge.”10
Finally, Lambda Legal made this request as part of its Fair Courts Project, which works
to ensure that courts afford LGBTQ rights due consideration based on constitutional and legal
principles. The webpage for this project, a link to which was included in Lambda Legal’s
request, shows Lambda Legal’s commitment to publicizing information regarding the
intersection of the court system and LGBTQ rights. The Fair Courts Project is a public education
and advocacy project providing tools and information to counter attacks on the courts that
threaten LGBTQ and HIV-related civil rights and jeopardize the courts’ ability to base decisions

7

Ex. A at n.26 (citing Lawrence v. Texas, 539 U.S. 558 (2003); United States v. Windsor, 570
U.S. 744 (2013); Obergefell v. Hodges, 135 S. Ct. 2584 (2015)); Buchert Decl. ¶ 5. See also
Romer v. Evans, 517 U.S. 620 (1996).
8
See, e.g., We Reviewed All of Judge Kavanaugh’s Record. Here’s What We Found, LAMBDA
LEGAL, July 9, 2018, https://www.lambdalegal.org/blog/20180709_brett-kavanaugh-record;
Charlotte Clymer, HRC Opposes Kavanaugh, Trump’s Pick to Undermine LGBTQ Rights,
Reproductive Rights, and Health Care, Human Rights Campaign, July 9, 2018,
https://www.hrc.org/blog/hrc-opposes-trumps-Supreme-Court-pick-brett-kavanaugh.
9
Melissa Quinn, Chuck Grassley Formally Requests Kavanaugh White House Records Amid
Document Battle, Wash. Examiner (July 27, 2018, 7:51 PM),
https://www.washingtonexaminer.com/policy/courts/grassley-formally-requests-kavanaughwhite-house-records-amid-document-battle
10
See Jennifer Rubin, The Senate Must Prevent Kavanaugh’s Nomination from Corrupting the
Supreme Court, Wash. Post, July 30, 2018, https://www.washingtonpost.com/blogs/rightturn/wp/2018/07/30/the-senate-must-prevent-kavanaughs-nomination-from-corrupting-thesupreme-court/?utm_term=.8a1e391a074f.
10

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in constitutional and legal principles, rather than in political moods or popular opinions. This
project disseminates content regarding the courts, including “Know Your Rights” materials, an
advocacy toolkit, reports, and editorial content.11 Lambda Legal’s request, and the Fair Courts
Project of which it is a part, advance Lambda Legal’s mission to achieve equality for LGBTQ
and HIV-positive individuals and integrates with Lambda Legal’s regular filing of FOIA requests
to ensure the accountability of government officials.12 Lambda Legal uses the information
gathered, and its analysis of it, to educate the public through reports, press releases, or other
media, as promoted on its website and social media platforms, such as Facebook and Twitter,
which together have more than half a million followers. Buchert Decl. ¶ 4.
To advance its public education and advocacy mission—including education and
advocacy specific to the relationship between the courts and LGBTQ rights—Lambda Legal
urgently needs HHS to fulfill its obligations. Only prompt processing of the request and
disclosure of the records to which Lambda Legal is entitled will preserve their value to Lambda
Legal and to the public it seeks to educate. Judge Kavanaugh has been nominated. Confirmation
hearings have passed and votes approach rapidly. Time is of the essence.
B.

Plaintiff Will Be Irreparably Harmed Absent the Requested Relief.

Lambda Legal will be harmed irreparably if HHS does not promptly process its request,
especially if further delays prevent disclosure of these records until after the Senate has voted on
Judge Kavanaugh’s nomination. Only preliminary injunctive relief ensuring that the requests are
processed and records are disclosed promptly can stave off the harm that neither Lambda Legal

11

Fair Courts Project, Lambda Legal, https://www.lambdalegal.org/issues/fair-courts-project
(last visited Aug. 29, 2018).
12
See, e.g., Lambda Legal Files FOIA Request After Trump Administration Restricts Use of
Seven Words at CDC, Lambda Legal, Dec. 20, 2017,
https://www.lambdalegal.org/blog/dc_20171220_language-restrictions.
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nor the public will receive the requested information until it is too late to make use of it. 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).
Judge Kavanaugh’s nomination has triggered the exigency Congress envisioned in
crafting FOIA’s expedition provisions. Only accelerated review by this Court can ensure that
Lambda Legal’s requests are promptly processed, preserving the opportunity for Lambda Legal
to obtain requested records while their value to Lambda Legal and to the public remains high. 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; see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of
Justice (“EPIC”), 416 F. Supp. 2d 30, 40-41 (D.D.C. 2006) (“[T]he statutory right to expedition
in certain cases underlined Congress’ recognition of the value in hastening release of certain
information. As [the plaintiff] correctly notes, the loss of that value constitutes a cognizable
harm. As time is necessarily of the essence in cases like this, such harm will likely be
irreparable.” (internal citations and quotation marks omitted)). Failure to process the request
promptly and to disclose non-exempt records responsive to the request will irrevocably deprive
Lambda Legal of the ability to probe Judge Kavanaugh’s record regarding issues at the core of
its mission; to educate the public regarding Judge Kavanaugh’s professional history and likely
impact on the Supreme Court; and to advocate for a court system—including the nation’s highest
court—that faithfully and equally protects the rights of everyone, including LGBTQ people and
people living with HIV. The records Lambda Legal seeks possess unique value while Judge
Kavanaugh’s nomination is pending and is a subject of widespread public debate, and that value

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will deteriorate 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.”). A healthy confirmation process requires public access to relevant information,
which constituents regularly use to form opinions about nominees and convey those opinions to
their senators. Members of the public cannot reliably fulfill their roles or meaningfully
participate in the process without adequate information on which to base their opinions, and this
deficit undermines senators’ ability to represent their constituents faithfully in Washington. In
light of the Senate Majority Leader’s announced commitment to fast-track a decision on Judge
Kavanaugh’s nomination, Court intervention to expedite processing is necessary to ensure that
the public is equipped for an informed discourse—now—about his legal career and qualifications
for a lifetime appointment to the nation’s highest court. As the nation’s vanguard LGBTQ civil
rights advocacy and litigation organization, Lambda Legal possesses the knowledge and skills to
assess and contextualize the requested information and a unique platform to disseminate the
records, and Lambda’s analysis of them, to the LGBTQ community, to its allies, and to the
general public. Were Lambda Legal to wait at the end of the queue, forgoing its statutory right to
prompt processing and disclosure, it would irreparably lose its ability to influence public
discussion of the intersection between Judge Kavanaugh’s potential appointment and the future
of LGBTQ rights in this country.

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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 75.13 The same is true here, with the Senate rushing to vote on Judge Kavanaugh’s nomination
before the upcoming midterm elections in November. The nomination has 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.14 The window for public education and

13

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).
14
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/.
14

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discussion will be open only briefly, and it is imperative that Lambda Legal 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
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

15

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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, Lambda Legal’s ability to enhance the public’s understanding
of the history and views of a Supreme Court nominee regarding fundamental rights of and
protections for LGBTQ Americans will be irreparably harmed if HHS is not required to process
Lambda Legal’s request with due speed. Lambda Legal seeks judicial intervention to ensure
HHS will comply with its obligations to expedite processing and disclosure.
C.

The Requested Relief Will Not Burden Others’ Interests.

Lambda Legal, the public, and the agencies are aligned in their mutual strong interest in
the disclosure and review of Judge Kavanaugh’s record.
HHS itself cannot claim to be harmed by an order compelling it to comply with its
statutory obligations. Nor would granting Lambda Legal relief unduly burden other FOIA
requesters. FOIA itself recognizes that need to prioritize some requests when there is an urgent
need for information—as reflected by the addition of FOIA’s expedition provisions. See EPIC,
416 F. Supp. 2d at 36 (explaining 1996 amendment adding expedited processing requirements).
Thus, Congress itself contemplated that in cases of compelling need—as Lambda Legal has
demonstrated in this instance—certain requesters would go to the head of the queue. Thus, an
16

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order from this Court that HHS process Lambda Legal’s request promptly and provide the
requested records as soon as practicable will not harm the interests of the non-moving party or
any other entity.
D.

The Public Interest Favors the Requested Relief.

A temporary restraining order or preliminary injunction is indispensable to protect the
public’s right to government transparency and its 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 FOIA is rooted in the self-evident 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
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

17

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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. This is
particularly true with regard to the progress made in clarifying that fundamental rights and the
equal protection of the laws extend to all, regardless of sexual orientation or gender identity.
Justice Kennedy—whom Judge Kavanaugh would replace—has been a leading voice on these
issues on the Supreme Court. The public has only one opportunity to assess Judge Kavanaugh’s
fitness to assume that legacy and to convey its views and concerns to the senators entrusted with

18

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weighing his nomination. A temporary restraining order or preliminary injunction ensuring
timely processing and disclosure of records reflecting Judge Kavanaugh’s record of government
service, and in particular his role in major policies and events affecting the rights of LGBTQ
people during the George W. Bush administration, maximizes the public’s ability to avail itself
of that opportunity.
CONCLUSION
For the foregoing reasons, Plaintiff Lambda Legal respectfully requests that this Court
grant a temporary restraining order or, in the alternative, a preliminary injunction requiring HHS
to process its FOIA requests on an expedited basis and to make a determination promptly and
produce records as soon as practicable.

Dated: September 13, 2018

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
/s/ Austin R. Evers
John E. Bies
D.C. Bar No. 483730
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-2465
beth.france@americanoversight.org
john.bies@americanoversight.org
Counsel for Plaintiff

19

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CERTIFICATE OF SERVICE
I hereby certify that on September 13, 2018, I caused a copy of the foregoing
Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order or Preliminary
Injunction, including notice that the application was made at approximately 1:30 PM on
September 13, along with copies of the Complaint and exhibits thereto, to be hand-delivered to
defendant at the following addresses:
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
200 Independence Avenue SW
Washington, DC 20201
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 13, 2018

/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-2465
beth.france@americanoversight.org
Counsel for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.,
Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendant.

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Case No. 18-cv-2130

DECLARATION OF SASHA BUCHERT
I, SASHA BUCHERT, hereby declare as follows:
1.

I am a Staff Attorney at Lambda Legal Defense and Education Fund, Inc.

(“Lambda Legal”), a non-profit, section 501(c)(3) organization whose mission is to achieve full
recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and everyone
living with HIV.
Lambda Legal’s Mission and Contributions
2.

Lambda Legal leads high-impact public education campaigns, advocates for

public policy at the local, state, and federal levels, and engages in impact litigation.
3.

Through its Fair Courts Project, Lambda Legal provides the public with

information and tools to counter harmful attacks on the courts that threaten LGBT and HIVrelated civil rights. Lambda Legal’s Fair Courts Project advances this mission through creation
and dissemination of reports, analysis, a curriculum for legal professionals, “Know Your Rights”
materials, an advocacy toolkit, and other informational and education materials.

 Case 1:18-cv-02130 Document 3-2 Filed 09/13/18 Page 2 of 3

4.

Lambda Legal also uses its social media platforms (including Facebook and

Twitter) to disseminate information to hundreds of thousands of followers.
Lambda Legal’s FOIA Request to HHS
5.

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

Supreme Court, Lambda Legal submitted a Freedom of Information Act (“FOIA”) request to the
U.S. Department of Health and Human Services (“HHS”) on August 10, 2018, seeking records
related to communications between HHS officials and Judge Kavanaugh during 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. Specifically, Lambda Legal requested:
All records reflecting communications (including emails, email attachments,
text messages, instant messages (such as AOL Instant Messenger), telephone
call logs, calendar invitations/entries, meeting notices, meeting agendas,
informational material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of any
oral communications, or other materials) between Brett Kavanaugh and
Secretary Tommy Thompson, Secretary Michael Leavitt, or Assistant
Secretary Wade Horn regarding media stories by Margaret (Maggie)
Gallagher or Michael McManus. In addition to communications regarding
published media stories, this request encompasses communications
discussing proposals for media stories, solicitation of media stories,
consultation on media stories, and actual or potential payment for writing
media stories, regardless of whether each story was ultimately published.
A true and correct copy of the email sent by me to the HHS FOIA office, containing the August
10, 2018 FOIA request is attached the Complaint filed in this action as Exhibit A.
6.

Lambda Legal considers this information vital to its mission to contribute

information and analysis to the public discourse concerning Judge Kavanaugh’s nomination to
the Supreme Court, under the auspices of Lambda Legal’s Fair Courts Project.
7.

Lambda Legal has received no communications from HHS concerning Lambda

Legal’s FOIA request.

2

 Case 1:18-cv-02130 Document 3-2 Filed 09/13/18 Page 3 of 3

Judge Kavanaugh’s Confirmation Hearings
8.

On September 7, 2018, Senate confirmation hearings concluded regarding the

nomination of Judge Kavanaugh to the U.S. Supreme Court.
9.

In light of the conclusion of the Senate’s confirmation hearings, Lambda Legal’s

need for a determination on its FOIA request to HHS is all the more urgent. Lambda Legal
considers it essential that as much information as possible is available for public consumption
prior to a Senate judiciary committee vote, in the interest of a fully informed confirmation
process.
10.

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

Kavanaugh, Lambda Legal believes that time is of the essence with respect to the records it has
requested from HHS.
11.

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

is true and correct.

Dated: September 13, 2018
Sasha Buchert

3

 Case 1:18-cv-02130 Document 3 Filed 09/13/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES,
)
)
Defendant. )
)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.,

Case No. 18-2130

PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER OR
PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Plaintiff Lambda
Legal Defense and Education Fund, Inc. (“Lambda Legal”) respectfully moves this Court to
issue temporary restraining order, or in the alternative, a preliminary injunction enjoining
Defendant the U.S. Department of Health and Human Services (“HHS”) from unlawfully
impeding Lambda Legal’s access to records that must be made available under the Freedom of
Information Act, 5 U.S.C. § 552 (“FOIA”). Lambda Legal seeks an injunction ordering HHS to
search for and produce all documents responsive to Lambda Legal’s FOIA request by such date
as the Court deems appropriate. Lambda Legal further seeks injunctive relief ordering HHS to
expedite the processing of Lambda Legal’s pending FOIA request. Lambda Legal’s request
seeks records related to Supreme Court nominee Brett Kavanaugh’s past work related to
government policies and practices affecting LGBTQ people. Such records will allow Lambda
Legal to inform the public’s participation in the debate regarding Judge Kavanaugh’s nomination
to the U.S. Supreme Court.

 Case 1:18-cv-02130 Document 3 Filed 09/13/18 Page 2 of 4

The grounds for this motion are set forth in the accompanying Memorandum in Support
of Plaintiff’s Motion for a Temporary Restraining Order or Preliminary Injunction. Pursuant to
Local Rule 65.1(a) and (d), Lambda Legal asks that the Court schedule a hearing on this motion
at the Court’s earliest convenience.

Dated: September 13, 2018

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
/s/ John E. Bies
John E. Bies
D.C. Bar No. 483730
/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
john.bies@americanoversight.org
austin.evers@americanoversight.org
Counsel for Plaintiff

2

 Case 1:18-cv-02130 Document 3 Filed 09/13/18 Page 3 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. NATIONAL ARCHIVES AND RECORDS )
ADMINISTRATION,
)
)
Defendant. )
)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.,

Case No. 18-2130

PROPOSED ORDER
Upon consideration of Plaintiff’s Motion for a Temporary Restraining Order or
Preliminary Injunction, Defendant’s Response thereto, and the entire record, it is hereby
ORDERED that Plaintiff’s Motion for a Temporary Restraining Order or Preliminary
Injunction is GRANTED; and it is further
ORDERED that Defendant the U.S. Department of Health and Human Services shall
process Plaintiff’s FOIA request dated August 10, 2018, on an expedited basis; and it is further
ORDERED that Defendant the U.S. Department of Health and Human Services shall
produce all records responsive to Plaintiff’s FOIA request dated August 10, 2018, within ___
days of the date of this order; and it is further
SO ORDERED.

Date: ________________________

____________________________________
United States District Judge

 Case 1:18-cv-02130 Document 3 Filed 09/13/18 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that on September 13, 2018, I caused a copy of the foregoing
Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining or Order Preliminary
Injunction, including notice that the application was made at approximately 1:30 PM on
September 13, along with copies of the Complaint and exhibits thereto, to be hand-delivered to
defendant at the following addresses:
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
200 Independence Avenue SW
Washington, DC 20201
In addition, a courtesy copy will be delivered to:
Jessie K. Liu
U.S. Attorney for the District of Columbia
555 4th Street NW
Washington, DC 20530
Dated: September 13, 2018

/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-2465
beth.france@americanoversight.org
Counsel for Plaintiff