Complaint - Senior Executives Association

Case 8:12-cv-02297-AW Document 3 Filed 08/02/12 Page 1 of 3 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MARYLAND 

______________________________ 

) 

SENIOR EXECUTIVES ) 

ASSOCIATION, et al. ) 

) 

Plaintiffs, ) 

) 

v. ) Civil Action No. 8:12-cv-2297-AW 

) 

UNITED STATES, et al. ) 

) 

Defendants. ) 

_____________________________ ) 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiffs Senior 

Executives Association, et al. respectfully request this Court to issue a Preliminary Injunction 

enjoining Defendants and their officers, agents and employees, as well as all other persons in 

active convert or participation with them, from (1) implementing any portion of Section 11 of the 

Stop Trading on Congressional Knowledge (“STOCK”) Act, P.L. 112-105, 126 Stat. 291, and 

(2) requiring employees to submit financial disclosure information so long as such information is 

subject to Internet publication by federal agencies. 

Plaintiffs have a substantial likelihood of prevailing on the merits of this action. Unless 

this Motion is granted, Plaintiffs and the public will suffer immediate and irreparable harm from 

the online disclosure of Plaintiffs private financial information. Neither Defendants nor the 

public will suffer any harm from the requested equitable relief. The public interest demands 

protection of constitutional rights, and thus fully supports issuance of the requested injunctive 

relief.


The grounds for this Motion are set forth more fully in the Complaint and in Plaintiffs’ 

Memorandum of Points Authorities in Support of Plaintiffs’ Motion for a Preliminary Injunction 

and the accompanying declarations. 

WHEREFORE, Plaintiffs respectfully request that this Court issue a Preliminary 

Injunction as described above. A proposed Order is attached. 

Dated: August 2, 2012 

Respectfully Submitted, 

/s/ Daron T. Carreiro_____________________________ 

Jack McKay (D. Md. Bar No. 05628) 

Thomas G. Allen 

Daron T. Carreiro (D. Md. Bar No. 18075) 

Kristen E. Baker 

Vernon C. Thompson, Jr. 

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, N.W. 

Washington, DC 20037 

Office: (202) 663-8000 

Fax: (202) 663-8007 

Email: jack.mckay@pillsburylaw.com 

thomas.allen@pillsburylaw.com 

daron.carreiro@pillsburylaw.com 

kristen.baker@pillsburylaw.com 

vernon.thompson@pillsburylaw.com 

Counsel for Plaintiffs 

/s/ Arthur B. Spitzer____________________________ 

Arthur B. Spitzer (D. Md. Bar No. 08628) 

American Civil Liberties Union of the Nation’s Capital 

4301 Connecticut Avenue, N.W., Suite 434 


Office: (202) 457-0800 

Fax: (202) 457-0805 

Email: art@aclu-nca.org 


2


CERTIFICATE OF SERVICE 

I hereby certify that on the 2nd day of August, 2012, a copy of the foregoing Motion for 

Preliminary Injunction was filed electronically using this Court’s ECF system and will be mailed 

via first class mail, postage prepaid, to the following: 

United States of America 

c/o United States Department of Justice 

950 Pennsylvania Avenue NW 


The Honorable Eric H. Holder, Jr. 

Attorney General of the United States 

United States Department of Justice 



Rod J. Rosenstein 

United States Attorney for the District of Maryland 

36 South Charles Street, 4th Floor 

Baltimore, MD 21201 

Don W. Fox 

Acting Director of the Office of Government Ethics 

1201 New York Avenue NW, Suite 500 











Office: (202) 663-8000 

Fax: (202) 663-8007 












Office: (202) 457-0800 

Fax: (202) 457-0805 



3

Case 8:12-cv-02297-AW Document 3-1 Filed 08/02/12 Page 1 of 44 



_____________________________ 

) 



) 

Plaintiffs, ) 

) 


) 


) 

Defendants. ) 

_____________________________ ) 

MEMORANDUM OF POINTS AND AUTHORITIES 

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 

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TABLE OF CONTENTS 

I. STATEMENT OF FACTS ................................................................................................. 4 

Page 

A. Pre-STOCK Act Reporting and Availability of Financial 

Information of Executive Branch Employees ......................................................... 4 

B. The STOCK Act ..................................................................................................... 8 

C. Parties .................................................................................................................... 12 

II. ARGUMENT .................................................................................................................... 17 

A. Standards for a Preliminary Injunction ................................................................. 17 

B. Plaintiffs Are Likely to Succeed on the Merits ..................................................... 17 

1. Plaintiffs Have a Constitutionally Protected Privacy Right 

in Their Personal Financial Information ................................................... 17 

2. Without Robust Safeguards Against Public Dissemination, 

the Government Cannot Compel the Disclosure of Private 

Financial Information................................................................................ 20 

3. Even If Collected Legally, Private Financial Information 

May Not Be Disclosed by the Government Absent a 

Compelling Interest ................................................................................... 22 

4. The Government Can Show No Interest Sufficient to 

Justify Internet Posting by August 31 or the Collection of 

Additional Financial Information to be Posted on the 

Internet ...................................................................................................... 23 

5. The Limited Current Availability of the Form 278 Does 

Not Change that Conclusion ..................................................................... 26 

6. The Internet Posting Requirement of the STOCK Act 

Should Not Be Applied to Forms Filed Prior to the Passage 

of the Act................................................................................................... 28 

7. Plaintiffs Are Likely to Succeed on Their Claims Under the 

Administrative Procedures Act ................................................................. 32 

C. Plaintiffs Will Suffer Irreparable Harm if the Requested Relief is 

Not Granted ........................................................................................................... 32 

D. The Balance of Harms Tips Markedly in Favor of the Plaintiffs ......................... 38 

E. The Public Interest Favors Issuance of an Injunction ........................................... 38 

F. No Bond Should Be Set ........................................................................................ 40 

III. CONCLUSION ................................................................................................................. 41 

403593684v1


MEMORANDUM OF POINTS AND AUTHORITIES 

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 

Unless enjoined by this Court, by August 31, 2012, the United States government will 

launch an unprecedented invasion of the privacy rights of some 28,000 of its citizens who are 

members of the Senior Executive Service (“SES”) or other high-level employees of the 

Executive Branch. By that date, federal agencies must post detailed financial data regarding the 

assets and financial transactions of these senior federal employees, their spouses and dependent 

children on the Internet for the world to see with the click of a mouse. No login will be required, 

no request will have to be made, and no record will be kept of those persons who view, 

download, and possibly use the information for any purpose, no matter how criminal or 

misguided. 

Absent injunctive relief from this Court, thousands of federal civilian and military 

personnel and their families, including administrative law judges, will become easy targets for 

identity theft, financial fraud, and even kidnapping when the nature, extent, and location of their 

financial assets become freely available worldwide. 

This startling publication of private information is mandated by the Stop Trading on 

Congressional Knowledge (“STOCK”) Act, Pub. L. No. 112-105, 126 Stat 291, signed into law 

on April 4, 2012. That Act was intended to remedy an alleged anomaly that insider trading laws 

were not applicable to Members of Congress and to respond to allegations that Members of 

Congress and their staffs were making financial decisions based on the misuse of non-public 

information. The Act applied certain securities laws to Congress and required that financial 

disclosure forms prepared by Members of Congress and their staffs, including those prepared to 

report financial transactions within 45 days of execution, be posted on the Internet so that 

constituents could be aware of their representatives’ financial interests and transactions. 

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The bill was later amended to extend the Internet posting mandate to the financial 

disclosure forms and updates filed annually by up to 28,000 Executive Branch employees, 

including members of the SES, and all flag-grade officers. The STOCK Act directs the President 

to ensure that no later than August 31, 2012, each federal agency makes each financial disclosure 

form (OGE Form 278) filed with it available online. The STOCK Act further directs the Office 

of Government Ethics (“OGE”), within 18 months, to create databases on the OGE website that 

permit the public to search, sort and download the Form 278 information of all Executive Branch 

filers. 

Plaintiffs are organizations whose membership includes senior executive officials within 

the Executive Branch as well as seven individual filers of Form 278. They bring this action to 

enjoin the United States and its agencies, preliminarily and permanently, from posting the Form 

278s or information from them on the Internet and from collecting information in the future for 

posting on the Internet. Internet posting is a gross invasion of the privacy right of those 

employees to be free of undue disclosure of their personal information – disclosure that cannot 

be justified by any governmental interest. 

The irreparable harm that will flow from the disclosure is patent. In addition to the gross 

invasion of personal financial privacy, Internet publication will expose senior employees 

(including military and diplomatic employees) to personal danger and will endanger our national 

security. These harms were starkly detailed in a letter sent to congressional leaders on July 19, 

2012, by former Secretary of Homeland Security Michael Chertoff, former Attorney General 

Michael Mukasey, former CIA Director Michael Hayden, former Director of National 

Intelligence Mike McConnell, and ten other very senior former federal officials in law 

403593684v1 

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enforcement, diplomatic, and national security positions, attached hereto as Exhibit 1. In their 

letter, these senior officials explain: 

Placing complete personal financial information of all senior officials on the 

Internet would be a jackpot for enemies of the United States intent on finding 

security vulnerabilities they can exploit. SF-278 forms include a treasure trove of 

personal financial information: the location and value of employees’ savings and 

checking accounts and certificates of deposit; a full valuation and listing of their 

investment portfolio; a listing of real estate assets and their value; a listing of 

debts, debt amounts, and creditors; and the signatures of the filers. SF-278s 

include financial information not only about the filing employee, but also about 

the employee’s spouse and dependent children. 

Posting this detailed financial information on the Internet will jeopardize the 

safety of executive branch officials – including military, diplomatic, law 

enforcement, and potentially intelligence officials – and their families who are 

posted or travel in dangerous areas, especially in certain countries in Asia, Africa, 

and Latin America. Embassy and military security officers already advise these 

officials to post no personal identifying information on the Internet. Publishing 

the financial assets of these officials will allow foreign governments, and terrorist 

or criminal groups to specifically target these officials or their families for 

kidnapping, harassment, manipulation of financial assets, and other abuse. 

Equally important, the detailed personal financial information – particularly 

detailed information about debts and creditors – contained in the SF-278s of 

senior officials is precisely the information that foreign intelligence services and 

other adversaries spend billions of dollars every year to uncover as they look for 

information that can be used to harass, intimidate and blackmail those in the 

government with access to classified information. Yet under the STOCK Act, 

these SF-278s will be placed on the Internet for any foreign government or group 

to access without disclosing their identity or purpose and with no notice to the 

employees or their agencies. We should not hand on a silver platter to foreign 

intelligence services information that could be used to compromise or harass 

career public servants who have access to the most sensitive information held by 

the U.S. government. 

Thus, not only does the harm to SES filers far outweigh any harm to the United States — 

the STOCK Act will affirmatively cause grave harm to the United States. And because the 

Internet posting is unnecessary to achieve the government’s interest in preventing abuse of a 

senior position in the government, the public interest falls markedly on the side of protecting 

service executives from the complete and irretrievable loss of their private information. 

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I. STATEMENT OF FACTS 

A. Pre-STOCK Act Reporting and Availability of Financial Information of 

Executive Branch Employees 

For more than three decades, senior Executive Branch employees have been required to 

complete annual financial disclosure reports pursuant to the Ethics in Government Act, 5 U.S.C. 

App’x § 101 et seq. (the “EGA”). 

The EGA creates financial reporting obligations for approximately 28,000 federal 

employees, including senior Executive Branch civil servants with pay above the GS-15 level or 

120 percent of the minimum rate of basic pay payable for GS-15 level for positions not under the 

General Schedule. See 5 U.S.C. App’x § 101(f)(3); Memorandum from Don W. Fox, OGE 

General Counsel, to Designated Agency Ethics Officials, O.G.E. LA-12-04 (June 20, 2012). 

All U.S. military officers ranking at or above grade O-7 are also covered. These federal 

employees must annually file their financial disclosure reports on forms created or approved by 

the OGE. The most recent version of the annual disclosure form is OGE Form 278 (Rev. 

12/2011). A copy of the form is attached hereto as Exhibit 2. 

The EGA, along with its related regulations and OGE Form 278, requires the disclosure 

of assets, income, financial transactions, liabilities, and other personal information. 5 U.S.C. 

App’x § 102; 5 C.F.R. §§ 2634.301 – 2634.311. This information is not limited to that of the 

individuals themselves, but in most cases also includes that of their spouses and dependent 

children. Id. Information about spouses and dependents may not be redacted before release to 

the public. See OGE, General Questions about Filing, available at http://oge.gov/Financial- 

Disclosure/Public-Financial-Disclosure-278/278-FAQ/General-Questions-About-Filing 

(last 

accessed July 30, 2012). More specifically, OGE Form 278 filers must disclose the following, 

subject to certain law threshold amounts and exceptions: 

403593684v1 

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Interests in property, including real estate, stocks, bonds, securities, livestock 

owned, commercial crops, antiques or art held for resale or investment, beneficial 

interests in trusts and estates, bank deposits, pensions and annuities, mutual funds, 

accounts receivable, and capital accounts and other asset ownership in a business; 

Investment income, including dividends, rents, interest, capital gains, and income 

derived from real estate, collectibles, stocks, bonds, notes, copyrights, pensions, 

mutual funds, life insurance contracts, loans, and personal savings accounts; 

Noninvestment income, including salaries, fees, commissions, wages, retirement 

benefits, honoraria, prizes, and awards; 

Purchases, sales, and exchanges of real property, stocks, bonds, commodity 

futures, mutual fund shares, and other forms of securities; 

Gifts and reimbursements; 

Liabilities; 

Agreements or arrangements with respect to future employment, leaves of 

absences, continuing payments by a former employer, and continuing 

participation in an employee welfare or benefit plan maintained by a former 

employer; 

Positions held outside the U.S. government as an officer, director, trustee, general 

partner, proprietor, representative, executor, employee, or consultant at any 

corporation, company, firm, partnership, trust, or other business enterprise, 

nonprofit organization, labor organization, or educational or other institution; and 

Biographical information, including name, agency name, title of position and 

dates held, date of appointment, address, and telephone number. 

5 U.S.C. App’x § 102; 5 C.F.R. §§ 2634.301 – 2634.311; OGE Form 278 (Rev. 12/2011). 

Employees required to file financial disclosure reports do so with their Designated 

Agency Ethics Officials, who must forward copies of the reports to the OGE for retention and 

final certification. 5 U.S.C. App’x §§ 103, 109(3); 5 C.F.R. §§ 2634.602, 2638.202. Agencies 

must retain the financial disclosure reports for six years. 5 U.S.C. App’x § 105(d); 5 C.F.R. 

§ 2634.603(g). 

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As referenced above, agencies were required to make these financial disclosure reports 

available to the public. However, the EGA provided several safeguards for access to an 

individual’s information. See 5 U.S.C. App’x § 105(b). 

First, a person who wished to view or obtain a 278 report had to submit an application in 

writing to the relevant agency, with the requestor’s name, occupation, and address; the name and 

address of any other person or organization on whose behalf the requestor was making the 

request; an affirmation that the requestor was aware of the prohibitions on obtaining or using the 

report; and an agreement by the requestor to abide by those prohibitions. 5 U.S.C. App’x 

§ 105(b)(2). Requesting individuals generally filed their requests on OGE Form 201, which 

OGE recommends for use by all agencies, or another similar agency form. A copy of Form 201 

is attached hereto as Exhibit 3. 

Second, the EGA required that the application requesting a financial report also be made 

available to the public. 5 U.S.C. App’x § 105(b)(2)(c). 

Third, the EGA prohibited reports from being used for any unlawful purpose; for any 

commercial purpose, other than by news and communications media for dissemination to the 

general public; for determining or establishing the credit rating of any individual, or for use, 

directly or indirectly, in the solicitation of money for any political, charitable, or other purpose. 

5 U.S.C. App’x § 105(c). The Attorney General was authorized to bring a civil enforcement 

action against any person who used an individual’s report for a prohibited purpose. 5 U.S.C. 

App’x § 105(c)(2). 

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The legislative history indicates that the above procedure and safeguards were intended to 

protect the privacy rights of those filing reports by requiring applicants to leave a “footprint in 

the sand,” 1 thereby deterring and punishing access and use by abusers. 

In addition to these protections in the EGA, OGE Form 278s remained subject to the 

protections of the Privacy Act of 1974, 5 U.S.C. § 552a, which prohibits an agency from 

disclosing certain information except pursuant to prior written consent, “routine uses,” and other 

listed exceptions. Under the Privacy Act, when an agency asks an individual to supply 

information, it must inform the individual of the authority that authorizes the solicitation of 

information, the principal purpose for which the information is to be used, and the routine uses 

that may be made of the information. Id. § 552a(e)(3). Thus, Form 278 (Rev. 12/2011) even 

today includes the following Privacy Act statement: 

Title I of the Ethics in Government Act of 1978 . . . and 5 C.F.R. Part 2634 of the 

Office of Government Ethics regulations require the reporting of this information. 

The primary use of the information on this report is for review by Government 

officials to determine compliance with applicable Federal laws and regulations. 

This report may also be disclosed upon request to any requesting person 

pursuant to section 105 of the Act or as otherwise authorized by law. You may 

inspect applications for public access of your own form upon request. Additional 

disclosures of the information on this report may be made [pursuant to the 

exceptions listed in the Privacy Act] . . . . 

(Emphasis added). 

1 See 125 Cong. Rec. 10939 (1979) (Statement by Rep. Harris, sponsor): 

(H.R. 2805 Ethics in Government Act Amendment “charges the Attorney General with the responsibility of 

bringing a civil action against any individual who obtains or uses a report in a prohibited manner. It is 

obvious that to effectively enforce these prohibitions, it is necessary to keep a record of the individuals 

granted access to the disclosure report. This bill provides for such a record. I am fearful that public 

disclosure of the personal financial records, not only of elected and senior appointed officials, but also of 

career civil service employees and their spouses could lead to abuses or [sic] privacy rights of these 

individuals without this application requirement. This requirement in no way limits public access to 

disclosure reports, it merely provides the ‘footprint in the sand’ necessary for effective enforcement of the 

prohibitions on certain uses of the information in disclosure reports.”) 

(emphasis added). 

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OGE also published its “routine uses” in the Federal Register, as required by 5 U.S.C. 

§ 552a(e)(4)(D), and incorporated disclosure pursuant to the requested procedures and 

protections of EGA Section 105(b). See 68 Fed. Reg. 3098, 3100 (Jan. 22, 2003), as corrected at 

68 Fed. Reg. 24744 (May 8, 2003) (routine uses including disclosure of records “in accordance 

with provisions of section 105 of the Ethics in Government Act of 1978, as amended, to any 

requesting person”). 

Under this regime, and prior to the STOCK Act, the requests for Form 278s were limited. 

OGE reported receiving only 79 Form 201s in 2008, down from 138 in 2007 and 155 in 2006. 

Proposed Collection; Comment Request for an Unmodified OGE Form 201 Ethics Act Access 

Form, 74 Fed. Reg. 59185, 59186 (Nov. 17, 2009). For requests directly to Executive Branch 

agencies other than OGE, applicants filed only 127 Form 201s in 2008, down from 135 in 2007 

and 138 in 2006. Id. Based on this history, OGE estimated that an average of 450 requests 

would be filed per year for all Executive Branch employees across all Executive Branch agencies 

from 2010 to 2012. Id. Moreover, “lower level officials’ reports don’t actually get requested.” 

Testimony of Walter M. Shaub Jr. to be Director, Office of Government Ethics, et al., Before the 

S. Comm. on Homeland Security and Governmental Affairs (July 26, 2012) (statement of Walter 

M. Shaub Jr., Director-Nominee, Office of Gov’t Ethics) available at 

http://www.hsgac.senate.gov/hearings/. 

B. The STOCK Act 

The STOCK Act was proposed in response to news stories and allegations that Members 

of Congress were using “insider information” to make money on investments but, as Members of 

Congress, could not be held liable for insider trading. Even though those accused denied any 

such wrongdoing, Congress nevertheless sought to clarify the rules and prevent congressional 

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insider trading. See Hearing on Insider Trading and Congressional Accountability, Senate 

Committee on Homeland Security and Governmental Affairs (Dec. 1, 2011); see also 158 Cong. 

Rec. S1977-01 (daily ed. Mar. 22, 2012). As originally introduced, the legislation applied only 

to Members of Congress and their staffs. 

Executive Branch employees were added to the STOCK ACT by a subsequent 

amendment. See 158 Cong. Rec. S290-315 (daily ed. Feb. 2, 2012). Although these Executive 

Branch employees were already subject to detailed financial disclosure provisions and extensive 

conflict of interest rules, they were included in the STOCK Act on what amounted to a “misery 

loves company” theory from the amendment’s sponsor, Senator Shelby: 

We have heard quite a bit from the President on the campaign trail about fairness. 

But it appears there is no interest in fairness when it comes to transparency for the 

executive branch. . . . It only seems fair that executive branch officials, who are 

already required to file annual financial reports, as we are, also be directed to 

meet the same additional reporting requirements being imposed on the legislative 

branch. I have yet to hear a compelling argument against equity between the 

branches. Some people have argued that the executive branch has other ways to 

deal with insider trading. Think about it. But none of those will subject executive 

branch employees to the same public scrutiny as this legislation would. I believe 

what is good for the goose, it seems to me, should be good for the gander. 

158 Cong. Rec. S297. No hearing was held on whether the STOCK Act should be extended to 

Executive Branch employees. 

As passed by Congress and signed by the President, Section 11 of the STOCK Act 

amended the EGA to require: (1) additional reporting requirements for securities and real 

property transactions of Executive Branch employees; (2) Internet publication of un-redacted 

employee financial disclosure reports by August 31, 2012; and (3) within 18 months, fully 

searchable and sortable databases on the OGE website containing the OGE Form 278 reports and 

data. These requirements are detailed below. 

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First, in addition to the financial reporting requirements already mandated by the EGA, 

the STOCK Act also requires the contemporaneous reporting of certain real property and 

securities transactions: 

Not later than 30 days after receiving notification of any transaction required to be 

reported under section 102(a)(5)(B), but in no case later than 45 days after such 

transaction, [certain executive and legislative officers], if required to file a report 

under any subsection of section 101, subject to any waivers and exclusions, shall 

file a report of the transaction . . . . 

Pub. L. No. 112-105 § 6(a)(1), 126 Stat. 293. 

Second, concerning agency website publication, the STOCK Act provides that: 

Not later than August 31, 2012, or 90 days after the date of enactment of this Act, 

whichever is later, the President shall ensure that financial disclosure forms filed 

pursuant to title I of the Ethics in Government Act of 1978 (5 U.S.C. App. 101 et 

seq.), in calendar year 2012 and in subsequent years, by executive branch 

employees specified in section 101 of that Act are made available to the public on 

the official websites of the respective executive branch agencies not later than 30 

days after such forms are filed. 

Pub. L. No. 112-105 § 11(a)(1), 126 Stat. 298. Because the STOCK Act was enacted on April 4, 

2012, August 31, 2012 is the applicable statutory deadline for agency website publication. See id. 

Pursuant to the Act, all financial disclosure forms filed with agency ethics officials between 

January 1, 2012, and July 31, 2012, must be published on the Internet by that date. Virtually all 

28,000 Executive Branch employees who are covered by the STOCK Act will have filed 

disclosure forms within those dates. Forms filed subsequent to July 31 must be published on the 

Internet within 30 days of filing. 

Third, the STOCK Act directs the Director of OGE to create, within 18 months of the 

enactment of the STOCK Act, databases containing the financial disclosure forms of all covered 

Executive Branch employees, which will be maintained on the OGE’s public website and will 

allow the public to search, sort, and download the data contained in the reports. Pub. L. No. 112- 

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105 § 11(b)(1)(B), 126 Stat. 299. For the OGE databases, the Act requires a login for 

downloading data contained in the reports, but does not require a login to view, search, and sort 

the data contained in the reports. Id. The requirement for individual agency Internet posting will 

expire when OGE implements its government-wide searchable, sortable, and downloadable 

online databases. Pub. L. No. 112-105 § 11(a)(4), 126 Stat. 299. 

Although some agencies will comply with the August 31, 2012 deadline for Internet 

availability simply by scanning and posting paper disclosure forms, other agencies plan to post 

the data in searchable form. See http://www.pbgc.gov/about/pg/footer/foia.html (last visited on 

Aug. 2, 2012); https://fdonline.ntis.gov/ogefdisc/index.do?agency=PBGC; 

http://www.doi.gov/ethics/why_employees_file.html (last visited on Aug. 2, 2012). For 

example, the National Technical Information Service web service (which apparently will be used 

by at least 14 agencies, including Consumer Financial Protection Bureau, Department of 

Commerce, and United States Department of Agriculture) enables searches by name, agency, 

transactions, and reports. See National Technical Information Service, Financial Disclosure of 

Government Employees, available at https://fdonline.ntis.gov/ogefdisc/index.do (last visited July 

26, 2012). 

The STOCK Act expressly repeals prior requirements that a person seeking access to an 

Executive Branch employee’s financial disclosure forms must provide his or her true and correct 

names, occupations, addresses, and the identity of any other person or entity on whose behalf the 

requestor is acting. The Act also repeals the requirement that such a person certify his awareness 

of and agreement to abide by the prohibitions on unauthorized use of the data and his knowledge 

that false statements or violation of those prohibitions may be prosecuted by the Attorney 

General. See Pub. L. No. 112-105 § 11(b)(2), 126 Stat. 299 (“For purposes of filings under this 

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section, section 105(b)(2) of the Ethics in Government Act of 1978 (5 U.S.C. App. § 105(b)(2)) 

does not apply.”). The statute does not require a login for access to financial disclosure 

information on agency or OGE websites, and agencies believe they cannot impose such a 

requirement. 

Thus, the STOCK Act has removed the “footprint in the sand” made when a requestor 

accesses agency websites or the OGE databases. Congress has substituted unconditional and 

unrestrained access to everyone—including potential abusers, who will no longer have any 

traceability—thereby entirely neutralizing the effectiveness of the Attorney General’s 

enforcement capability. See 125 Cong. Rec. 10939 (1979) (Statement by Rep. Harris, sponsor) 

(“It is obvious that to effectively enforce these prohibitions, it is necessary to keep a record of the 

individuals granted access to the disclosure report.”). 

In a purported attempt to implement the STOCK Act’s website publication requirement, 

and to protect itself against potential Privacy Act violations, OGE published a notice in the 

Federal Register on July 31, 2012, announcing modifications to its list of “routine uses” (i.e., 

exceptions to the Privacy Act prohibition against disclosure of records absent prior written 

consent). The notice does not expressly limit the records that may be published to those filed 

after the STOCK Act’s enactment. Instead, it broadly permits OGE “to disclose on the OGE 

Web site and to otherwise disclose to any person . . . any public filer reports required to be filed” 

by reason of federal employment or by the president or vice president. Privacy Act of 1974; 

Amendment to System of Records, 77 Fed. Reg. 45353 (July 31, 2012). 

C. Parties 

Plaintiffs are individual employees within the Executive Branch in positions that obligate 

them to make reports under the EGA and the STOCK Act who face potential irreparable harm if 

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the Internet publication goes forward. Several organizations whose membership includes such 

senior executive officials are also Plaintiffs, on their own behalf and on behalf of their members. 

The organizations have representational standing because, for each organizational Plaintiff, “(1) 

at least one of its members would have standing to sue in his own right; (2) the organization 

seeks to protect interests germane to the organization’s purpose; and (3) neither the claim 

asserted nor the relief sought requires the participation of individual members in the lawsuit.” 

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir. 2000) 

(citing Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). The 

Plaintiffs are the following: 

 

Senior Executives Association (“SEA”), a non-profit professional association 

representing the approximately 7,000 career Senior Executives in the U.S. 

Government. SEA’s goals include improving the efficiency, effectiveness, and 

productivity of the federal government and advocating on behalf of the interests of 

career federal executives. 

 

American Foreign Service Association (“AFSA”), a professional association 

representing more than 31,000 active and retired Foreign Service employees of the 

Department of State and Agency for International Development, as well as smaller 

groups in the Foreign Agricultural Service, U.S. & Foreign Commercial Service, and 

International Broadcasting Bureau. AFSA’s principal missions include enhancing the 

effectiveness of the Foreign Service, protecting the professional interests of its 

members, and ensuring the maintenance of high professional standards for career 

diplomats and political appointees. 

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Assembly of Scientists, an organization of 45 U.S. scientists, the mission of which is 

to provide a community for those who wish to seek fundamental knowledge about 

the nature and behavior of the universe at any scale, and to apply that knowledge 

to enhance the quality of life, including improving health, lengthening life, and 

reducing the burdens of illness and disability. 

 

National Association of Immigration Judges (“NAIJ”), the certified representative 

and recognized collective bargaining unit of the approximately 250 immigration 

judges in the U.S. and its territories. NAIJ members conduct trial level adversarial 

proceedings to determine if individuals charged by the Department of Homeland 

Security for being in violation of U.S. immigration laws are in fact removable, or 

whether they may be eligible for any relief from deportation. 

 

Joshua Zimmerberg (“Zimmerberg”), Head of the Program in Physical Biology at the 

Eunice Kennedy Shriver National Institute of Child Health and Human Development 

(“NICHD”), which is part of the National Institutes of Health (“NIH”). Mr. 

Zimmerberg’s current position is classified at the SES level and he has been required 

to file OGE Form 278s since 1990. Declaration of Joshua Zimmerberg is attached 

hereto as Exhibit 4. 

 

Michael Ryschkewitsch (“Ryschkewitsch”), Chief Engineer for the National 

Aeronautics and Space Administration (“NASA”). Mr. Ryschkewitsch’s current 

position is classified at the SES level and he has been required to file OGE Form 278s 

since 2007. Declaration of Michael Ryschkewitsch is attached hereto as Exhibit 5. 

 

Evelyn Upchurch (“Upchurch”), Field Operations Training Coordinator for the 

United States Citizenship and Immigration Services. In June 2012, Ms. Upchurch 

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resigned her position as Regional Director for the Central Region of the United States 

Citizenship and Immigration Services so that she would no longer be an SES level 

employee. Between 2001 and June 2012, Ms. Upchurch was an SES-level employee 

and was required to file OGE Form 278s during that time period. Declaration of 

Evelyn Upchurch is attached hereto as Exhibit 6. 

 

Janice Caramanica (“Caramanica”), Associate Director and Acting Chief of the 

Intake and Resolution Section in the Office of Civil Rights, U.S. Department of State. 

Ms. Caramanica’s position is one step below the SES level. She has decided to stop 

seeking a position at the SES level because she is not willing to subject herself to 

Internet publication of her private financial information. Declaration of Janice 

Caramanica is attached hereto as Exhibit 7. 

 

Jane Doe #1, an administrative law judge employed by the United States Department 

of Justice with jurisdiction over immigration status cases in a metropolitan area 

(“Judge Doe-1”). Judge Doe’s current position is classified at the SES level and she 

has been required to file OGE Form 278s since becoming an SES-level employee. 

Declaration of Judge Doe-1 is attached hereto as Exhibit 8. 

 

Jane Doe # 2 (“Doe -2”). Doe #2’s current position is classified at the SES level and 

she has been responsible for filing OGE Form 278s since 2007. Doe # 2 will be 

subjected to irreparable harm if the information provided on her OGE Form 278 is 

used to identify her spouse’s employment at an intelligence agency consultant. 

Declaration of Doe-2 is attached hereto as Exhibit 9. 

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Jane Doe #3 (“Doe -3”) is employed by the Foreign Service. Her position is 

classified at the Senior Foreign Services level and she is required to file OGE Form 

278s. Declaration of Doe-3 is attached hereto as Exhibit 10. 

Defendants are the United States and Don W. Fox, the Acting Director of OGE. 

Defendant Fox is named in his official capacity only. 

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II. 

ARGUMENT 

A. Standards for a Preliminary Injunction 

In order to obtain a preliminary injunction, a plaintiff must show “that he is likely to 

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 

relief, that the balance of equities tips in his favor, and that an injunction is in the public 

interest.” WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 

(4th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 

Plaintiffs can prove each of these elements, and a preliminary injunction against Internet posting 

of their personal financial data should issue. 

B. Plaintiffs Are Likely to Succeed on the Merits 

Plaintiffs have a constitutionally protected privacy interest in their financial data that will 

be violated by (1) the agency disclosure via the Internet of information already collected (2011 

annual filings plus the updated reports required by the STOCK Act) and (2) the collection of any 

additional financial information that will be disclosed on the Internet. The Form 278 filers who 

submitted their calendar year 2011 form prior to the passage of the STOCK Act will also suffer a 

violation of their Due Process rights if information that was collected under the limited 

disclosure rules prior to the STOCK Act is now posted on the Internet. 

1. Plaintiffs Have a Constitutionally Protected Privacy Right in Their 

Personal Financial Information 

The Fourth Circuit has long recognized a right to privacy in personal information. The 

general right was stated succinctly in 1984: “The right to privacy includes an individual[’s] 

interest in avoiding disclosure of personal matters.” Taylor v. Best, 746 F.2d 220, 225 (4th Cir. 

1984) (internal citations and quotations omitted). The right was reaffirmed and identified as 

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flowing from the Constitution in Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. 1990) 

(“Personal, private information in which an individual has a reasonable expectation of 

confidentiality is protected by one’s constitutional right to privacy.”). That right specifically 

extends to financial information such as debts and judgments. Id. at 192. 

Walls and Best relied on Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court’s first 

pronouncement on the right to informational privacy. Whalen arose from a New York statute 

requiring that the names and addresses of all individuals who obtained certain prescription drugs 

be reported to the State Department of Health. Physicians and patients challenged the collection 

of the information on several grounds, including an invasion of a right to privacy. The Supreme 

Court defined that right as extending to two types of interests: “[one] is the individual interest in 

avoiding disclosure of personal matters, and another is the interest in independence in making 

certain kinds of important decisions.” Whalen, 429 U.S. at 599-60. The Supreme Court found 

that the collection of the prescription data served a valid governmental purpose and that the 

“security provisions of the statute” were sufficiently robust to make the public disclosure of the 

information only a “remote possibility.” Id. at 601. Hence, it found no constitutional violation. 

Walls dealt with the first privacy interest mentioned in Whalen – avoiding disclosure of 

personal matters – when it assessed the privacy implications of questions asked of an employee 

of the Bureau of Police of the City of Petersburg. The foundation of the court’s analysis was the 

constitutional right to privacy in “[p]ersonal, private information.” Walls, 895 F.2d at 192. 

When determining whether constitutional protections for informational privacy had been violated 

by the questions, the court required that a weighing test be performed. According to the court in 

Walls: 

The right to privacy, however, is not absolute. If the information is protected by a 

person’s right to privacy, then the defendant has the burden to prove that a 

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compelling governmental interest in disclosure outweighs the individual’s privacy 

interest. As the Supreme Court has recognized, ‘compelling’ is the key word. 

When the decision or the information sought is ‘fundamental,’ regulation ‘may be 

justified only by compelling state interests, and must be narrowly drawn to 

express only those interests.’ 

Id. (internal citations omitted). 

Walls had objected to a question that called on her to disclose “all outstanding debts or 

judgments against [her] or [her] spouse or for which [she was] the co-maker.” Id. at 190. The 

Fourth Circuit held that “[f]inancial information like that requested in the questionnaire is 

protected by a right to privacy.” Id. at 194. 

The court cited favorably a leading Third Circuit case, Fraternal Order of Police, Lodge 

5 v. Philadelphia, 812 F.2d 105 (3d Cir. 1987), where the court held that information about the 

financial status and physical condition of police officers in a Special Investigations Unit, and 

about arrests of such officers’ family members, was “entitled to privacy protection.” Id. at 115. 

However, because Walls “had financial responsibility for the CDI [Community Diversion 

Incentive] program, oversaw restitution payments, had regular contact with convicted criminals, 

and was in a position to make recommendations concerning sentencing,” 895 F.2d at 190, the 

Fourth Circuit found that the real potential for corruption, and the strong public interest in 

avoiding corruption, outweighed Ms. Walls’ privacy expectations vis-à-vis her employer and 

demonstrated that the government had a “compelling interest” in obtaining the information. Id. 

at 194. 

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Walls is the law of the Fourth Circuit today on the constitutional right to informational 

privacy of non-public information 2 and describes the test that this court must employ when 

protected information, like personal financial information, is requested. 

2. Without Robust Safeguards Against Public Dissemination, the 

Government Cannot Compel the Disclosure of Private Financial 

Information 

Critical to the finding that Walls’ privacy right had not been violated was the Fourth 

Circuit’s determination that there were robust safeguards against dissemination of her financial 

information. The information was “kept in a private filing cabinet that is locked at night, and 

only four persons [were] authorized to have access.” Walls, 895 F.2d at 194. The court found 

these protections sufficient but went on to say: 

[I]f this type of information had been more widely distributed, our conclusions 

might have been different. In the past few decades, technological advances have 

provided society with the ability to collect, store, organize, and recall vast 

amounts of information about individuals in sophisticated computer files. This 

database capability is already being extensively used by the government, financial 

institutions and marketing research firms to track our travels, interests, 

preferences, habits, and associates. Although some of this information can be 

useful and even necessary to maintain order and provide communication and 

2 In 1992, the Fourth Circuit referred to a blood donor’s “constitutional right” to protect his identity in civil litigation 

against the Red Cross and found no constitutional violation given the elaborate security measure imposed by the 

district court to maintain the confidentiality of the donor’s identity. Watson v. Lowcountry Red Cross, 974 F.2d 482 

(4th Cir. 1992). 

In 1998, the Fourth Circuit found that the constitutional right to informational privacy did not extend to a person’s 

name, address, and telephone number, contained in state motor vehicle records, noting that “this is the very sort of 

information to which individuals do not have a reasonable expectation of privacy,” and that “the same type of 

information is available from numerous other sources.” Condon v. Reno, 155 F.3d 453, 464-65, rev’d on other 

grounds, 528 U.S. 141 (2000) (4th Cir. 1998). Condon is entirely distinguishable from this case. 

In 2002, the Fourth Circuit considered a privacy right attack on a South Carolina statute that gave state inspectors 

the right to inspect any abortion clinic records including the names of patients. The court required South Carolina to 

demonstrate “that the records it requires that contain personal information will be maintained in confidence” to the 

extent compatible with using the records to ensure health and safety.” Greenville Women’s Clinic v. Comm’r, 317 

F.3d 357, 370 (4th Cir. 2002). The court concluded that South Carolina statutes and regulations assured that the 

information would not be disclosed. 

In 2010, the Fourth Circuit held that the fact that social security numbers could be found in county land records did 

not affect an individual’s right to “control” of information concerning his person. Ostergren v. Cuccinelli, 615 F.3d 

263 (4th Cir. 2010). 

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convenience in a complex society, we need to be ever diligent to guard against 

misuse. Some information still needs to be private, disclosed to the public only if 

the person voluntarily chooses to disclose it. 

Id. at 194-95. 3 

It is evident from the court’s discussion in Walls that had the personal financial 

information involved been less well protected, even within the police department, its collection 

would have been prohibited. A fortiori, a law or regulation requiring Walls’ personal financial 

information to be made available to the public on the Internet would have been struck down. 

Indeed, in Fraternal Order of Police, the protections against disclosure were found inadequate 

and the collection of financial information was enjoined. 812 F.2d at 118. 4 

Likewise, in NASA v. Nelson, 131 S. Ct. 746 (2011), the Supreme Court emphasized the 

importance of restrictions on disclosure in determining the government’s ability to collect 

personal information. The Court found that the government’s interest as an employer permitted 

it to require contractors in sensitive positions to disclose whether they had “used, possessed or 

manufactured illegal drugs” and if so, to provide information about treatment or counseling. 5 

Writing for the Court, Justice Alito listed the various Privacy Act limitations on disclosure of the 

collected information and described these protections as giving “‘forceful recognition’ to a 

3 In Whalen, the Supreme Court voiced its concern about the “threat to privacy implicit in the accumulation of vast 

amounts of personal information in computerized data banks” 429 U.S. at 605. The Court noted that it was not 

deciding any question presented by “the unwarranted disclosure of accumulated private data by a system that did 

not contain comparable security provisions.” Id. at 605-06. This case presents that precise issue. 

4 These protections consisted of promises on the questionnaire that the responses would not be kept on file and 

would either be returned to the applicants or destroyed, as well as promises by the police commissioner that during 

the application process only those few members of the department requiring access to the information would see the 

responses. 812 F.2d at 118. These protections were held to be inadequate because the court found there was “no 

directive limiting access to the responses to specific persons or specifying the handling and storage of the 

responses,” because the police commissioner “admitted that it was inevitable that those officials responsible for the 

application process would remember at least some of the information in the responses,” and because there was 

“no statute or regulation that penalizes officials with confidential information from disclosing it.” Id. 

5 In its analysis, the Court assumed a constitutional right to informational privacy. The Court’s opinion notes that 

the United States (petitioner) had not asked the Court to hold that there was no constitutional right to informational 

privacy. NASA, 131 S. Ct. at 757 n.10. The brief of the United States in fact accepts the constitutional right as a 

given and argues (successfully) that the collection of information on government contractors did not violate it. See 

No. 07-530 2010 WL 2031410 (Pet. Brief). 

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Government employee’s interest in maintaining the ‘confidentiality of sensitive information . . . 

in his personnel files,’” id. at 762 (quoting Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 n.16 

(1979)), and as “‘evidenc[ing] a proper concern’ for individual privacy.” Id. (quoting Whalen, 

429 U.S. at 605, and Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 458-59 (1977)). 

3. Even If Collected Legally, Private Financial Information May Not Be 

Disclosed by the Government Absent a Compelling Interest 

This case involves both the future collection of information to be posted on the Internet 

and the immediate posting of information already held by the government. Both collection and 

disclosure are subject to the constitutional protection of informational privacy recognized in 

Walls and accepted, arguendo, in NASA v. Nelson. The only difference is that when the issue is 

disclosure of information that the government has already lawfully obtained, the government 

must justify the disclosure, not the collection. 

Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990) summarizes the law on 

disclosure of private information that has been lawfully obtained. In Barrington, a husband and 

father voluntarily disclosed his HIV status to the police. A policeman then disclosed Doe’s HIV 

status to his neighbors, with disastrous personal consequences for Doe. 

The District Court analyzed Whalen as demonstrating that the government was not only 

restricted from collecting medical information but “may be restricted from disclosing such 

private information it lawfully receive[d].” Barrington, 729 F. Supp. at 383. After finding a 

constitutional right of privacy held by the Doe family in the information disclosed by Doe, the 

court required the government to show a “compelling interest” in disclosure. There being no 

such interest, “the disclosure violated the Doe’s constitutional rights.” Id. at 385. See also 

James v. City of Douglas, 941 F.2d 1539, 1544 (11th Cir. 1991) (holding that the constitutional 

right of privacy in avoiding disclosure of personal matters was violated when city allowed 

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numerous individuals to view a tape of the plaintiff engaging in sexual acts, and that the right 

was “clearly established” so as to deprive individual defendants of qualified immunity); Bloch v. 

Ribar, 156 F.3d 673, 686 (6th Cir. 1998) (because state could not show a compelling interest in 

disclosure of details of sexual assault, victim’s constitutional right to privacy was violated). 

These cases demonstrate that even if the Form 278 information covered by the STOCK 

Act were collected under constitutional conditions, it may only be disclosed in a manner that 

does not violate the Plaintiffs’ privacy rights. This means that the government must show a 

compelling interest that the information be disclosed and that it has chosen the least intrusive 

method consistent with fulfilling that interest. It can do neither. 

4. The Government Can Show No Interest Sufficient to Justify Internet 

Posting by August 31 or the Collection of Additional Financial 

Information to be Posted on the Internet 

One would normally look either to the stated purpose of a statute or to its legislative 

history to find the governmental interest that it seeks to further. In this case, neither yields any 

discussion of a valid interest in Internet disclosure of financial information of Executive Branch 

employees. 

The purpose of the STOCK Act set forth in its preamble does not even mention members 

of the Executive Branch. It states only that it is an act “[t]o prohibit Members of Congress and 

employees of Congress from using nonpublic information derived from their official positions 

for personal benefit, and for other purposes.” Pub. L. No. 112-105, 126 Stat. 291. 

The legislative history gives no reason for the extension of the Internet filing requirement 

to Executive Branch employees. That extension was not even the subject of a hearing, and the 

only justification in the record is one of “what is good for the goose . . . should be good for the 

gander” because “[w]e have heard quite a bit from the President on the campaign trail about 

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fairness,” and it would be “fair” to impose the same Internet posting requirement on the 

Executive Branch. See page 9, supra. Even when Congress discussed the Internet posting of 

financial information of Members of Congress and their staffs, it was justified by a system of 

limited access that has no relevance to Executive Branch disclosure: 

The bill also contains another important provision offered in committee by 

Senators JON TESTER and MARK BEGICH that will require the financial 

disclosure forms filed by Members and staff to be filed electronically and perhaps 

even more significantly, therefore, be available online for public review. The fact 

is, our reports are now available for public review. But people have to go to the 

Office of the Secretary of the Senate and ask for copies of them. There is no 

sensible reason to make someone physically come to the House or Senate to see a 

copy of one of our financial disclosure forms. They are public records and they 

ought to be easily available to the public online, and this proposal will make sure 

that happens. 

Stop Trading on Congressional Knowledge Act, Motion to Proceed to the Measure Considered in 

Senate (Statement of Sen. J. Lieberman), 158 Cong. Rec. 5142, 5143 (daily ed. Jan. 30, 2012). 

In contrast, Form 278s could be obtained by faxing or mailing a Form 201 to the appropriate 

agency (different agencies provided for different means of submitting requests). Also, in 

contrast to the situation with members of Congress, there is already an extensive regulatory 

scheme in place to prevent misuse of inside information and other potential abuses by members 

of the Executive Branch. 

These protections are set out in the Standards of Ethical Conduct for Employees of the 

Executive Branch found at 5 C.F.R. Part 2635. These regulations were promulgated pursuant to 

President George H.W. Bush’s Executive Order 12674 (Apr. 12, 1989), as modified by 

Executive Order 12731 (Oct. 17, 1990), which provided, in part: 

To ensure that every citizen can have complete confidence in the integrity of the Federal 

Government, each Federal employee shall respect and adhere to the fundamental 

principles of ethical service as implemented in regulations promulgated under . . . this 

order: . . . (b) Employees shall not hold financial interests that conflict with the 

conscientious performance of duty. (c) Employees shall not engage in financial 

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transactions using nonpublic Government information or allow the improper use of such 

information to further any private interest. 

Executive Order 12674 (as modified by E.O. 12731), Sec. 101. In particular, 5 C.F.R. § 

2635.703 prohibits an Executive Branch employee from engaging in a financial transaction using 

non-public information, or improperly using non-public information to further his own private 

interests or that of another, whether through advice or recommendation, or by knowing 

unauthorized disclosure. In addition, 5 C.F.R. § 2635.402 prohibits an Executive Branch 

employee from “participating personally and substantially in an official capacity in any particular 

matter in which, to his knowledge, he or any person whose interests are imputed to him . . . has a 

financial interest, if the particular matter will have a direct and predictable effect on that 

interest.” 

The regulatory requirements are supplemented by potential criminal liability. Section 

208 of Title 18 subjects Executive Branch employees to criminal penalties, including 

imprisonment and fine, for “participat[ing] personally and substantially as a Government officer 

or employee, in a judicial or other proceeding, application, request for a ruling or other 

determination . . . or other particular matter in which, to his knowledge, he, his spouse, minor 

child . . . or any person or organization with whom he is negotiating or has any arrangement 

concerning prospective employment has a financial interest.” 18 U.S.C. § 208(a). 

Many agency ethics rules and regulations provide further detail regarding the prohibited 

uses of non-public information and some offer agency-specific applications. 6 

6 

See, e.g., U.S. Department of Agriculture Office of Ethics, Ethics Advisor’s Desk Reference, available at 

http://usda-ethics.net/rules/rule18.htm#4_2 (stating “YOU MAY NOT: [e]ngage in financial transactions using 

‘insider’ or nonpublic information, nor allow the improper use of such information, to further your own or 

another’s private interest”); U.S. Department of Justice Departmental Ethics Office, Outside Employment and 

Activities, Misuse of Position, available at http://www.justice.gov/jmd/ethics/outsidek.htm (stating that, “[a]n 

employee may not engage in a financial transaction using nonpublic information nor allow the use of such 

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Against this regulatory backdrop, any claim by the Government that the Internet posting 

is necessary to serve a compelling interest – or even a significant interest – rings hollow. 

Agency ethics officers are in a far better position to police the applicable ethics rules than the 

members of the Russian Mafia or the Nigerian scam artists to whom the government now wishes 

to release this private financial information. Posting the data from Form 278s online will be as 

damaging as posting individuals’ tax returns, for they contain much similar information. 7 

Because the government cannot meet its burden of showing a compelling interest in 

Internet disclosure of the Form 278s or that Internet posting is narrowly tailored to meet such an 

interest, disclosure via the Internet of Plaintiffs’ private financial information and the further 

collection of private information to be posted on the Internet are unconstitutional and must be 

enjoined. 

5. The Limited Current Availability of the Form 278 Does Not Change 

that Conclusion 

This conclusion is in no way undermined by the fact that Form 278 data could be 

obtained by the public to a limited degree through a specific process under the EGA. That 

process included: (1) a written application providing the requestor’s name and address and a 

commitment that the requestor is aware of the prohibitions on obtaining the report; (2) public 

availability of the application; and (3) specific prohibitions on use of the data for commercial 

7 

information to further his private interests or those of another”); National Institutes of Health, Introduction to 

Government Ethics, available at http://ethics.od.nih.gov/Training/Ethics-Intro-Handout.pdf (“[e]mployees shall 

not engage in financial transactions using nonpublic Government information or allow the improper use of such 

information to further any private interest”); Department of Defense Naval Inspector General, How to Resolve a 

Complaint (A-Z), Misuse of Non-Public Information, available at 

http://www.ig.navy.mil/complaints/Complaints%20%20(Misuse%20of%20non-public%20information).htm 

(quoting 5 C.F.R. § 2635.703, defining non-public information, providing examples of misuse of non-public 

information, and providing reporting information). 

The privacy of income tax returns is stringently protected by both civil and criminal law. See IRS Chief 

Counsel, Disclosure & Privacy Law Reference Guide, IRS Pub. 4639 (Rev. 9-2011), available at 

www.irs.gov/pub/irs-pdf/p4639.pdf. 

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purposes, for credit rating, or for solicitations. The Attorney General could bring a civil action 

against those who violate the use restrictions. As set forth above, the requests for Form 278s 

under this regime have been miniscule – only a few hundred per year for all Executive Branch 

employees across all Executive Branch agencies for 2006-08. Moreover, almost all of those 

requests have been for the forms of high-profile appointees; “lower level officials’ reports don’t 

actually get requested.” (testimony of Walter M. Shaub, Jr., July 20, 2012, available at 

http://www.hsgac.senate.gov/hearings/). 

Thus, until August 31, 2012, private financial information found on the Form 278 of the 

vast majority of filers has remained private because of the EGA’s protections on access, and 

filers’ right of privacy in that information has been protected, at least as a practical matter. See 

DOJ v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 764, 780 (1989) (upholding 

privacy interest in FBI rap sheets, noting, “there is a vast difference between the public records 

that might be found after a diligent search of courthouse files, county archives, and local police 

stations throughout the country and a computerized summary located in a single clearinghouse of 

information,” and concluding that “[t]he privacy interest in maintaining the practical obscurity of 

rap-sheet information will always be high”); Ostergren, 615 F.3d at 283 (fact that individuals’ 

Social Security numbers could be found in documents in county land records offices does not 

eviscerate their constitutional privacy interest in keeping their Social Security numbers off the 

Internet). 

In sum, the Plaintiffs have a constitutionally protected right of privacy in the financial 

information required of them on Form 278. The government cannot show any compelling 

interest in collecting information to be posted on the Internet or Internet posting of information 

that it has already collected. Any general interest of the government in “transparency” is 

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dramatically outweighed by the havoc that will be visited on the Plaintiffs when their financial 

information is irretrievably made available to the world on August 31, 2012. 

6. The Internet Posting Requirement of the STOCK Act Should Not Be 

Applied to Forms Filed Prior to the Passage of the Act 

Certain of the Executive Branch filers who are Plaintiffs or represented by Plaintiffs in 

this matter submitted their Form 278s prior to the passage of the STOCK Act, with the promise 

that disclosure of their information would be subject to the protective scheme of the Privacy Act 

and the EGA. The Form 278 (Rev. 12/2011), on which the 2011 annual filings were made in 

2012, stated explicitly that the form was being filed pursuant to the Privacy Act protections 

discussed above, as well as the pre-STOCK Act procedures and protections of EGA Section 

105(b). See Exhibit 2. The Privacy Act protections prohibited public disclosure absent prior 

written consent and an established “routine use,” and the EGA Section 105(b) procedure required 

a prior written request to the relevant agency, identification of the requestor, and an 

acknowledgment of the prohibited uses of the information obtained. These protections were 

ripped away by a single sentence of the STOCK Act that became law after many of the forms 

were filed. 

The STOCK Act’s Internet posting requirement cannot be applied to these early filers for 

two reasons. First, the express language of the website publication requirement supports 

prospective application only. According to the STOCK Act, by no later than August 31, 2012, 

financial disclosure forms filed “in calendar year 2012 and in subsequent years” must be made 

available on agency websites “not later than 30 days after such forms are filed.” Pub. L. No. 

112-105 § 11(a)(1), 126 Stat. 298. Nowhere does the statute address Form 278s already filed; 

indeed, the 30-day posting requirement could never be met for these forms. Thus, it would be 

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impossible to satisfy this requirement for the filings for calendar year 2011 made in early 2012, 

and the STOCK Act should not be construed to cover them. 

“[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, 

and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods., 

511 U.S. 244, 265 (1994) (footnotes omitted); see also Ward v. Dixie Nat’l Life Ins. Co., 595 

F.3d 164, 172 (4th Cir. 2010) (recognizing “presumption against statutory retroactivity” and 

holding that presumption was not overcome). Statutory construction favors prospective 

application, absent clear congressional language to the contrary. Id. There is no such language 

in the STOCK Act, with respect to forms filed prior to its enactment. 

Second, any retroactive application of the Internet publication requirement of the STOCK 

Act would violate the Due Process rights of the early filers. “Elementary considerations of 

fairness dictate that individuals should have an opportunity to know what the law is and to 

conform their conduct accordingly; settled expectations should not be lightly disrupted.” 

Landgraf, 511 U.S. at 265 (footnote omitted). This is particularly true where retroactive statutes 

affect contractual or property rights – “matters in which predictability and stability are of prime 

importance.” Id. at 271; see also E. Enters. v. Apfel, 524 U.S. 498, 548 (1998) (Kennedy, J., 

concurring) (“If retroactive laws change the legal consequences of transactions long closed, the 

change can destroy the reasonable certainty and security which are the very objects of property 

ownership.”). 

Thus, in Tafas v. Dudas, 511 F. Supp. 2d 652 (E.D. Va. 2007), a pharmaceutical 

company won a preliminary injunction against final rules issued by the Patent and Trademark 

Office (“PTO”) that amended the process for patent applications and retroactively limited a 

number of rights the company had with respect to applications pending at the time the regulation 

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was amended. The court found that the company had voluntarily surrendered its trade secrets 

when it filed its patent applications under the prior system in exchange for a guarantee from the 

PTO that the company would have a “full and fair opportunity to seek a spectrum of patent 

protection adequate to protect [its] investments.” Id. at 667 (internal citation and quotations 

omitted). The court held that the company had demonstrated a likelihood of success on the 

merits because “the Final Rules retroactively alter the bargain on which inventors like [the 

company] rely in making their decision to surrender their rights” and “impair [the company’s] 

right to this bargain.” Id. 

Similarly, any attempt to apply the STOCK Act retroactively to filers who prepared their 

Form 278s prior to its passage would disrupt the settled expectations under which they prepared 

and submitted their forms. These pre-STOCK Act filers were told explicitly on the Form 278 

that they completed that their financial disclosures were subject to the pre-STOCK Act 

procedures and protections of EGA Section 105(b) (including prior written request, identification 

of the requestor, and an acknowledgment of prohibited uses). Due Process requires that these 

promised protections remain in effect for Form 278s filed before the STOCK Act. 

There are additional reasons that require the court to avoid a retroactive application of the 

STOCK Act. The Fifth Amendment protects against retroactive legislation that is arbitrary or 

irrational, and a justification adequate for prospective legislation might be insufficient to satisfy 

due process for retroactive aspects of the legislation. Usery v. Turner Elkhorn Mining Co., 428 

U.S. 1, 16-17 (1976); see also E. Enters., 524 U.S. at 549 (Kennedy, J., concurring) (concurring 

opinion would have invalidated statute on due process grounds as it “bears no legitimate relation 

to the interest which the Government asserts in support of the statute”). 

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In this case there is no adequate justification for applying the Internet publication 

requirement of the STOCK Act to Executive Branch employees who filed Form 278s prior to the 

enactment of the STOCK Act. Indeed, there is not even an attempt at justification – there is no 

reference in the legislative history as to retroactive application to Executive Branch employees, 

and no congressional hearing was held on any issue relating to Executive Branch filers. 

Furthermore, pre-STOCK Act filers in the Executive Branch were already subject to detailed 

financial disclosure provisions and extensive conflict of interest rules and public access to their 

financial disclosures. 

OGE failed to clarify the website publication requirement as it relates to pre-STOCK Act 

filings in its notice published in the Federal Register on July 31, 2012, announcing modifications 

to its list of “routine uses” (i.e., exceptions to the Privacy Act prohibition against disclosure of 

records absent prior written consent). Rather than expressly limiting disclosable records to those 

filed after the STOCK Act’s enactment, the amendment purportedly permits OGE “to disclose on 

the OGE Web site and to otherwise disclose to any person . . . any public filer reports required to 

be filed by reason of federal employment or by the president or vice president.” Privacy Act of 

1974; Amendment to System of Records, 77 Fed. Reg. 45353 (July 31, 2012). As written, this 

notice would permit OGE to publish Form 278 information going back to 2006, even though 

many of those forms contain information from individuals who have long since left government 

employment. 

Employees who filed their Form 278 before April 4, 2012 did so with settled expectations 

of a scheme of protection for their financial information that was in place and was reaffirmed on 

the very form on which they entered their financial information. Either as a matter of statutory 

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construction or of Due Process, 278 forms filed in 2012 but before the STOCK Act became law 

may not be posted online. 

7. Plaintiffs Are Likely to Succeed on Their Claims Under the 

Administrative Procedures Act 

Plaintiffs are also likely to succeed on their Administrative Procedures Act (“APA”) 

claims, as the previously described actions, by federal agencies and/or officers acting under color 

of legal authority, constitute final agency action that is arbitrary, capricious, an abuse of 

discretion, not in accordance with law, contrary to Plaintiffs’ constitutional rights, and will cause 

Plaintiffs to suffer legal wrong. See 5 U.S.C. §§ 702, 706(2)(A)-(C). 

C. Plaintiffs Will Suffer Irreparable Harm if the Requested Relief is Not 

Granted 

Plaintiffs seeking a preliminary injunction must show that “irreparable injury is likely in 

the absence of an injunction.” Winter, 555 U.S. at 22. The Fourth Circuit has generally held that 

this requires a “clear showing of irreparable harm,” that must be “’neither remote nor speculative, 

but actual and imminent.’” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 

(4th Cir. 1991) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 

1989). 

Here, the harm is certainly “imminent.” It will occur as soon as the information is made 

available online, no later than August 31, 2012. 

The harm is also “actual” for several reasons. First, the denial of a constitutional right, if 

denial is established, constitutes irreparable harm for purposes of equitable jurisdiction. Ross v. 

Meese, 818 F.2d 1132, 1135 (4th Cir. 1987); see also Greater Baltimore Bd. of Realtors v. 

Hughes, 596 F. Supp. 906, 924 (D. Md. 1984) (“[T]he court will follow the majority rule and 

hold that if plaintiffs are able to demonstrate a loss of constitutional rights, they will have met the 

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irreparable injury requirement.”). Second, the public disclosure of confidential information is 

obviously irreparable, as courts have recognized. See, e.g., Ruckelshaus v. Monsanto Co., 463 

U.S. 1315, 1317 (1983) (continuing injunctive relief pending appeal because otherwise trade 

secrets could be disclosed to the public and “would become public knowledge, and could not be 

made secret again”). Finally, the improper disclosure of confidential information is also 

irreparable because the loss cannot be measured in dollars. PARI Respiratory Equip., Inc. v. 

Groskopf, Civ. A. No. 3:07-cv-446, 2007 U.S. Dist. LEXIS 68949 at *6, (E.D. Va. Sept. 17, 

2007) (improper use or disclosure of information constitutes irreparable harm (i.e., an injury that 

monetary damages cannot adequately remedy)”). 

Furthermore, the injury here is also irreparable because, absent injunctive relief, the 

Plaintiff’s rights will be lost forever and there will be nothing left to litigate. After publication 

occurs, the court will be powerless to reverse the posting and its effects. See, e.g., Population 

Inst. v. McPherson, 797 F.2d 1062, 1081 (D.C. Cir. 1986) (“Appellant will suffer irreparable 

injury . . . because this court will be unable to grant effective relief. Thus, appellant has satisfied 

this requirement for injunctive relief.”); Planned Parenthood v. Cansler, 804 F. Supp. 2d 482, 

499 (M.D.N.C. 2011) (“The Court further finds that the harm is irreparable in that if the staff 

members are laid off and the clinic is closed, the Court would be unable to provide an effective 

or meaningful remedy at the conclusion of this litigation.” (internal citation and quotations 

omitted). 

These injuries are irreparable enough, but there is much more. The harms faced by 

government employees from the STOCK Act’s Internet posting requirement were starkly 

detailed in the letter sent to congressional leaders on July 19, 2012, by former CIA director 

Michael Hayden, former Secretary of Homeland Security Michael Chertoff, former Attorney 

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General Michael Mukasey, former Director of National Intelligence Mike McConnell, and ten 

other very senior former federal officials in law enforcement, diplomatic, and national security 

positions. See Exhibit 1. The letter gives graphic examples of the threats to national security to 

which the Internet posting will give rise and goes on to detail the ability of crime groups to target 

the families of prosecutors for physical attacks or threats, and the invitation to financial attacks, 

hacking, and identity theft of officials and their families that will flow from online posting. 

The individual Plaintiffs in this case echo these concerns with real world examples. 

Plaintiff Judge Doe-1 is an administrative law judge with jurisdiction over immigration status 

cases. See Decl. of Judge Doe-1, Exhibit 8. Judge Doe-1 makes immigration decisions affecting 

persons with gang affiliations, those in the drug trade and organized crime, as well as those 

politically connected to foreign governments. Id. Judge Doe-1 has received three personal 

threats related to cases before her that were serious enough to require intervention by security 

personnel. As a result of these threats, Judge Doe-1 takes great care to limit the information 

about her family that is publicly available. She calculates that once the STOCK Act is 

implemented, 40 different categories of her financial information will be posted on the Internet. 

That information will disclose (or enable someone to locate) her personal residence, the location 

of her bank and her banking habits, and assets that could be used to exert financial pressure on 

her or her family. Id. 

Jane Doe-2 describes concerns that echo directly those in the letter of senior officials 

regarding risks to our intelligence personnel working abroad. See Decl. of Jane Doe-2, Exhibit 

9. Ms. Doe-2 works in a government position where she has no dealings with contractors and no 

information that is not public except information about the security of operations at her agency. 

Her husband, whose financial information will now be posted on the Internet along with hers, 

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works at a firm that is a contractor to an intelligence agency. The risks to him from his work are 

so significant that he is warned when he travels abroad three to four times a year for lengthy 

periods to bring no financial information with him, including banking information, because the 

information might contain facts that disclose his intelligence role and therefore may put him at 

risk of kidnapping or death. The family takes precautions to safeguard this financial information. 

Those safeguards will be meaningless once their financial information is uploaded to the 

Internet. Id. 

If Jane Doe-2 is required to disclose information about jointly owned assets and accounts, 

the information available online about where the family banks and where it owns property may 

readily be analyzed to conclude that her husband works in intelligence because of a clustering of 

intelligence personnel in particular neighborhoods. Indeed, her husband has been warned that 

the geographic area in which they live has been targeted already for intelligence gathering by 

foreign agents. Id. 8 

Likewise, Jane Doe-3, a member of the Foreign Service of the State 

Department, fears that her husband, who works abroad in a political advocacy role and has been 

the subject of false accusations about his employer in the past, will be subject to the risk of 

further attacks and pressure. See Decl. of Jane Doe-3, Exhibit 10. 

Plaintiffs Zimmerberg, Ryschkewitch, and Upchurch focus on the financial fraud risk of 

the Section 11 posting. Mr. Zimmerberg is a senior scientist at the National Institutes of Health. 

He has no role in procurement contracts or policymaking. See Decl. of Joshua Zimmerberg, 

Exhibit 4. Mr. Ryschkewitch is the Chief Engineer at NASA, supervising technical readiness for 

8 A cyber-security analyst who advises the Obama administration and Congress believes that “at least one smart 

country is building a data base on [U.S. Government] employees.” Aliya Sternstein, “Thrift Savings Plan Hackers 

Could Be Targeting Other Government Data.” Nextgov (May 29, 2012), available at 

http://www.nextgov.com/cybersecurity/2012/05/thrift-savings-plan-hackers-could-be-targeting-other-governmentdata/55953/. 

The information on the online Form 278 would be exceptionally useful in this effort. 

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all NASA programs. See Decl. of Michael Ryschkewitch, Exhibit 5. Ms. Upchurch is a Field 

Operations Training Coordinator for the Citizenship and Immigration Services, which is a part of 

the Department of Homeland Security. She resigned a Regional Director position in part so she 

would not be an SES-level employee required to file information that would be disseminated 

pursuant to the STOCK Act. See Decl. of Evelyn Upchurch, Exhibit 6. 

These Plaintiffs see the enhanced likelihood of fraudulent schemes being perpetrated on 

civil servants. Mr. Zimmerberg and Mr. Ryschkewitch have both been the victims of financial 

fraud in the past, Zimmerberg Decl. at 6; Ryschkewitch Decl. at 8, and each sees the availability 

of his financial information online as making such fraudulent conduct much more likely. 

Ms. Upchurch receives emails in phishing scams, 9 and is aware that if information about where 

she holds accounts and her assets becomes available to such scammers, it will markedly increase 

their ability to present themselves as credible sources and increase the chances of defrauding her. 

Decl. of Evelyn Upchurch, Exhibit 6. Plaintiffs Caramanica and Ryschkewitch also both have 

elderly parents or in-laws with whom they have joint accounts. They are required to report the 

details of those accounts, and have well-grounded fears that their elderly relatives “will be at 

particular risk for identity theft and fraudulent schemes.” Decl. of Michael Ryschkewitch at 3, 

Exhibit 5; Decl. of Janice Caramanica at 3, Exhibit 7. 

Plaintiff Ryschkewitch, like many senior executives, supervises many junior employees – 

at one time 3,000. As he points out, current or former employees are sometimes “disgruntled,” 

and may seek to harm supervisors or former supervisors who they feel treated them unfairly. Mr. 

Ryschkewitch “maintain[s] an unlisted phone number and otherwise protect[s his] personal 

9 “Phishing” is the process of masquerading as a trustworthy entity to obtain confidential information from an 

individual or to direct the individual to a website that has the look and feel of a legitimate site or to sites that are 

infected with malware. 

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information because of the risk that a current or former disgruntled employee may try to exploit 

my information to harm me or my family.” Decl. of Michael Ryschkewitch Decl. at 3, Exhibit 5. 

Exposing his personal financial data and that of his family will undermine his efforts to protect 

himself and his family. Numerous other senior public servants are undoubtedly in the same 

situation. 

Plaintiff Zimmerberg voices a concern understandable to any person: “I do not want my 

children, siblings, neighbors, or relatives or others to know the details of my finances. This 

exposure has the potential to poison relationships, for many reasons.” Decl. of Joshua 

Zimmerberg Decl. at 3, Exhibit 4. 

Also, a preeminent scientist at NIH, Phil Skolnick, sees the physical risk of harm during 

his substantial international travel and the harm a criminal could inflict when he/she has 

knowledge of Mr. Skolnick’s name, his work affiliation, and specific assets. See Declaration of 

Phil Skolnick, attached hereto as Exhibit 11. 

Finally, the injury here is dramatic and unique and irreparable because of the vast reach 

of the Internet. Courts have recognized the instantaneous and permanent nature of Internet 

injury. As a federal judge has noted: “[t]he nature of the Internet aggravates the irreparable 

nature of the injury,” and, once a tape is posted on the Internet, “it will be available for instant 

copying and further dissemination.” Michaels v. Internet Entm’t Group, Inc., 5 F. Supp. 2d 823, 

842 (C.D. Cal. 1998) (upholding preliminary injunction to protect plaintiffs’ right of privacy in 

tape). Even if the data were later removed from agency websites, it could not be removed from 

the Internet, because “[t]he Internet records everything and forgets nothing.” Jeffrey Rosen, The 

End of Forgetting, N.Y. TIMES, July 25, 2010 at 30. See, e.g., 

http://en.wikipedia.org/wiki/Internet_Archive (describing the robotic archiving of Internet 

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material); http://en.wikipedia.org/wiki/WikiLeaks (at n. 218) (noting that “[i]n the days 

following [the initial Wikileaks posting of classified U.S. diplomatic cables], hundreds of (and 

eventually more than a thousand) mirrors of the WikiLeaks site appeared” containing the same 

material). 

D. The Balance of Harms Tips Markedly in Favor of the Plaintiffs 

This prong of the preliminary injunction analysis is similar to the test employed in 

determining whether there has been a violation of the right to privacy, see pages 16-18, supra, 

and need not be repeated here. Absent a preliminary injunction, Plaintiffs will suffer a damaging 

and irretrievable loss of their personal financial data. On the other hand, if an injunction is 

granted, the government will simply be required to maintain the status quo that has existed for 

many years, which includes public access limited by the provisions of the Ethics in Government 

Act. 

E. The Public Interest Favors Issuance of an Injunction 

The public interest issue is an easy one, once the Court finds a likelihood of success on 

the merits. “[U]pholding constitutional rights is in the public interest.” Legend Night Club v. 

Miller, 637 F.3d 291, 303 (4th Cir. 2011); AFT-W.Va. v. Kanawha County Bd. of Educ., 592 

F. Supp. 2d 883, 905 (S.D. W.Va. 2009) (same). 

Furthermore, the public interest is served by an injunction prohibiting implementation of 

Section 11 of the STOCK Act because of its effect on the quality of the civil servants in the 

Executive Branch. Plaintiff Upchurch has resigned as a Regional Director in the USCIS because 

of the STOCK Act. Decl. of Evelyn Upchurch at 2, Exhibit 6. Plaintiff Ryschkewitch, as the 

Chief Engineer at NASA, must hire and retain employees with highly specialized backgrounds. 

He has already been approached by individuals to discuss being downgraded from SES level 

403593684v1 

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positions to avoid financial disclosure requirements. Others are considering resignation. Decl. 

of Michael Ryschkewitsch at 5, Exhibit 5. Plaintiff Zimmerberg also attests that “there is no 

question that the STOCK Act will impact the ability to recruit capable scientists to public 

service. I am already aware of individuals that have resigned positions or refused to apply for 

positions that include a STOCK Act disclosure obligation. This directly harms the United 

States’ ability to conduct research into critical areas not covered by commercial interests.” Decl. 

of Joshua Zimmerberg at 3, Exhibit 4. Judge Doe-1 believes that the broad dissemination of 

financial information will have a substantial negative impact on recruiting qualified immigration 

judges. Decl of Judge Doe-1, Exhibit 8. And Phil Skolnick affirms that “[i]f the public 

disclosure provision of the STOCK Act had been in place in 2010, I would not have considered 

re-joining the NIH. I am certain that this provision will make it impossible for the United States 

government to obtain the services of many highly qualified and desirable scientific, medical and 

other professional individuals, who will not be willing to compromise their financial and 

personal security.” Decl. of Phil Skolnick at 3, Exhibit 11. 

Finally, there is also a compelling public interest in delaying an irreversible action in 

order to give Congress an opportunity to reconsider Section 11. In response to the letter of 

senior officials, Exhibit 1, which asked Congress to amend Section 11, a spokesman for Senator 

Lieberman, Chair of the Senate Homeland Security and Government Affairs Committee, and the 

primary sponsor of the STOCK Act, said that “[h]e is very concerned about the risks described in 

the letters and is considering possible ways to address the situation.” 10 

But Congress is 

10 

Joe Davidson, Heavy hitters strike at Stock Act employee provisions, WASHINGTON POST, July 26, 2012, 

http://www.washingtonpost.com/politics/heavy-hitters-strike-at-stock-act-employeeprovisions/2012/07/26/gJQAYBPNCX_story.html/. 

403593684v1 

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scheduled to be in recess from August 6 through September 9, 11 and is therefore in no position to 

be able to act before the August 31 statutory deadline for Internet publication. 

F. No Bond Should Be Set 

The federal rules authorize preliminary injunctions “only if the movant gives security in 

an amount that the court considers proper to pay the costs and damages sustained by any party 

found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). But the Court has 

“discretion to set a bond amount of zero where the enjoined or restrained party faces no 

likelihood of material harm.” Md. Dep’t of Human Res. v. U.S. Dep’t of Agric., 976 F.2d 1462, 

1483 n.23 (4th Cir. 1992); accord Chase v. Town of Ocean City, 825 F. Supp. 2d 599, 630 (D. 

Md. 2011) (imposing no bond on that ground). See also 11A Wright, Miller & Kane, Federal 

Practice & Procedure § 2954, at 293 (2d ed. 1995, April 2012 Supp.) (stating that a “court may 

dispense with security altogether if the grant of an injunction carries no risk of monetary loss to 

the defendant”). Because there is no possibility that the defendants will suffer compensable 

financial harm from the issuance of a preliminary injunction in this case, the Court should set the 

bond at zero. 

11 See http://www.senate.gov/pagelayout/legislative/one_item_and_teasers/2012_schedule.htm 

(Senate); http://www.house.gov/legislative/date/2012-08-06 (House of Representatives). 

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III. 

CONCLUSION 

Some 28,000 career civil servants are about to be pushed off a financial precipice from 

which there is no return. Only this court can prevent needless harm to their privacy, their 

financial well-being and, possibly, their very lives. Plaintiffs request that the Court grant a 

preliminary injunction to stay the August 31, 2012 uploading of their private financial 

information to the Internet. 












Office: (202) 663-8000 

Fax: (202) 663-8007 












Office: (202) 457-0800 

Fax: (202) 457-0805 



403593684v1 

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CERTIFICATE OF SERVICE 

I hereby certify that on the 2nd day of August, 2012, a copy of the foregoing 

Memorandum In Support of Motion for Preliminary Injunction was filed electronically using this 

Court’s ECF system and will be mailed via first class mail, postage prepaid, to the following: 

United States of America 

c/o United States Department of Justice 



The Honorable Eric H. Holder, Jr. 

Attorney General of the United States 

United States Department of Justice 



Rod J. Rosenstein 

United States Attorney for the District of Maryland 

36 South Charles Street, 4th Floor 

Baltimore, MD 21201 

Don W. Fox 

Acting Director of the Office of Government Ethics 

1201 New York Avenue NW, Suite 500 











Office: (202) 663-8000 

Fax: (202) 663-8007 












Office: (202) 457-0800 

Fax: (202) 457-0805 



403593684v1 

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EXHIBIT 1


UPDATED VERSION 

The Honorable Harry Reid 

Majority Leader 

United States Senate 

The Honorable Mitch McConnell 

Minority Leader 


The Honorable Carl Levin 

Chairman of the Senate Committee on Armed 

Services 


The Honorable John McCain 

Ranking Member of the Senate Committee on Armed 

Services 


The Honorable John Kerry 

Chairman of the Senate Committee on Foreign 

Relations 


The Honorable Richard Lugar 

Ranking Member of the Senate Committee on 

Foreign Relations 


The Honorable Joe Lieberman 

Chairman of the Senate Committee on Homeland 

Security and Governmental Affairs 


The Honorable Susan Collins 

Ranking Member of the Senate Committee on 

Homeland Security and Governmental Affairs 


The Honorable Dianne Feinstein 

Chairman of the Senate Select Committee on 

Intelligence 


The Honorable Saxby Chambliss 

Ranking Member of the Senate Select Committee on 

Intelligence 


The Honorable Patrick Leahy 

Chairman of the Senate Committee on the Judiciary 


The Honorable Chuck Grassley 

Ranking Member of the Senate Committee on the 

Judiciary 


The Honorable Eric Cantor 

Majority Leader 

House of Representatives 

The Honorable Nancy Pelosi 

Minority Leader 


The Honorable Buck McKeon 

Chairman of the House Committee on Armed 

Services 


The Honorable Adam Smith 

Ranking Member of the House Committee on Armed 

Services 


The Honorable Ileana Ros-Lehtinen 

Chairman of the House Committee on Foreign 

Affairs 


The Honorable Howard Berman 

Ranking Member of the House Committee on 

Foreign Affairs 


The Honorable Peter King 

Chairman of the House Committee on Homeland 

Security 


The Honorable Bennie Thompson 

Ranking Member of the House Committee on 

Homeland Security 


The Honorable Mike Rogers 

Chairman of the House Permanent Select Committee 

on Intelligence 


The Honorable Dutch Ruppersberger 

Ranking Member of the House Permanent Select 

Committee on Intelligence 


The Honorable Lamar Smith 

Chairman of the House Committee on the Judiciary 


The Honorable John Conyers, Jr. 

Ranking Member of the House Committee on the 

Judiciary 

House of Representatives


July 19, 2012 (Updated Version, 3:30 PM) 

RE: Application of Section 11 of the STOCK Act to National Security Officials 

Dear Congressional Leaders: 

We are writing to express concern about section 11 of the Stop Trading in Congressional 

Knowledge Act (the STOCK Act), which requires that the financial disclosure forms of senior executive 

branch officials be posted on the Internet by August 31. While we agree that the government should have 

access to the financial information of its senior officials to ensure the integrity of government decision 

making, we strongly urge that Congress immediately pass legislation allowing an exception from the 

Internet posting requirement for certain executive branch officials, in order to protect the national security 

and the personal safety of these officials and their families. 

The STOCK Act was intended to stop insider trading by Members of Congress. However, 

section 11 of the Act, which was added without any public hearings or consideration of national security 

or personnel safety implications, requires that financial data of over 28,000 executive branch officials 

throughout the U.S. government, including members of the U.S. military and career diplomats, law 

enforcement officials, and officials in sensitive national security jobs in the Defense Department, State 

Department and other agencies, be posted on their agency websites. 

It is not clear what public purpose is served by inclusion of Section 11. We are not aware that 

any transparency concerns have been raised about the adequacy of the existing review process for 

executive branch officials, most of whom have devoted their careers to public service. For several 

decades, executive branch officials have prepared and submitted SF-278 financial disclosure forms to 

their employing agencies. The completed forms and the extensive financial data they contain are 

carefully reviewed by agency ethics officers in light of the specific responsibilities of the officials 

submitting them in order to identify and eliminate potential conflicts of interest. Although the forms may 

be requested by members of the public, they are not published in hard-copy or on the Internet. Moreover, 

individuals requesting copies of the forms must provide their names, occupation, and contact information. 

Agencies generally notify the filing officials about who has requested their personal financial information. 

In contrast, Section 11 of the STOCK Act would require that the financial disclosure forms of 

executive branch officials be posted on each agency’s website and that a government-wide database be 

created containing the SF-278s that would be searchable and sortable without the use of a login or any 

other screening process to control or monitor access to this personal information. 

We believe that this new uncontrolled disclosure scheme for executive branch officials will create 

significant threats to the national security and to the personal safety and financial security of executive 

branch officials and their families, especially career employees. Placing complete personal financial 

information of all senior officials on the Internet would be a jackpot for enemies of the United States 

intent on finding security vulnerabilities they can exploit. SF-278 forms include a treasure trove of 

personal financial information: the location and value of employees’ savings and checking accounts and 

certificates of deposit; a full valuation and listing of their investment portfolio; a listing of real estate 

assets and their value; a listing of debts, debt amounts, and creditors; and the signatures of the filers. SF- 

278s include financial information not only about the filing employee, but also about the employee’s 

spouse and dependent children. 

Posting this detailed financial information on the Internet will jeopardize the safety of executive 

branch officials — including military, diplomatic, law enforcement, and potentially intelligence officials 

— and their families who are posted or travel in dangerous areas, especially in certain countries in Asia, 

Africa, and Latin America. Embassy and military security officers already advise these officials to post


no personal identifying information on the Internet. Publishing the financial assets of these officials will 

allow foreign governments, and terrorist or criminal groups to specifically target these officials or their 

families for kidnapping, harassment, manipulation of financial assets, and other abuse. 

Equally important, the detailed personal financial information — particularly detailed information 

about debts and creditors — contained in the SF-278s of senior officials is precisely the information that 

foreign intelligence services and other adversaries spend billions of dollars every year to uncover as they 

look for information that can be used to harass, intimidate and blackmail those in the government with 

access to classified information. Yet under the STOCK Act, these SF-278s will be placed on the Internet 

for any foreign government or group to access without disclosing their identity or purpose and with no 

notice to the employees or their agencies. We should not hand on a silver platter to foreign intelligence 

services information that could be used to compromise or harass career public servants who have access 

to the most sensitive information held by the U.S. government. 

Section 11 could also jeopardize the safety and security of other executive branch officials, such 

as federal prosecutors and others who are tracking down and bringing to justice domestic organized crime 

gangs and foreign terrorists. Crime gangs could easily target the families of prosecutors with substantial 

assets or debts for physical attacks or threats. 

Finally, publishing detailed banking and brokerage information of executive branch officials, 

especially with their signatures, is likely to invite hacking, financial attacks, and identity theft of these 

officials and their families, particularly by groups or individuals who may be affected by their 

governmental work. 

Given these inevitable adverse national security consequences, we urge you to amend the STOCK 

Act to protect U.S. national security interests and the safety of executive branch officials by creating an 

exception from the requirements of Section 11 for senior executive branch officials with security 

clearances. The exception should also apply to other officials based on a determination by an agency 

head that an exception is necessary to protect the safety of the official or the official’s family. At the very 

minimum, Congress should act to delay implementation of Section 11 until the national security and 

personal safety implications can be fully evaluated. 

If the financial disclosure forms of senior executive officials are actually posted on the Internet in 

August, there will be irreparable damage to U.S. national security interests, and many senior executives 

and their families may be placed in danger. This issue is too important to be trapped in partisan politics. 

We urge Congress to act swiftly, before the Congress goes on its summer recess on August 6. 

Sincerely, 

Richard Armitage 

Deputy Secretary of State, 2001-2005 

John B. Bellinger III 

Partner, Arnold & Porter LLP; Legal 

Adviser, U.S. Department of State, 2005- 

2009; Legal Adviser, National Security 

Council, The White House, 2001-2005 

Joel Brenner 

National Counterintelligence Executive, 

2006-2009; Inspector General, National 

Security Agency, 2002-2006 

Michael Chertoff 

Secretary of Homeland Security, 2005- 

2009 

Jamie Gorelick 

Deputy Attorney General, 1994-1997; 

General Counsel, Department of Defense, 

1993-1994 

John Hamre 

Deputy Secretary of Defense, 1997-2000


Michael Hayden 

General USAF (RET); Director of the 

Central Intelligence Agency 2006-2009; 

Director of the National Security Agency 

1999-2006 

Mike McConnell 

Vice Admiral USN (RET); Director of 

National Intelligence, 2007-2009; Director 

of the National Security Agency, 1992- 

1996 

Michael B. Mukasey 

Partner, Debevoise & Plimpton; Attorney 

General, 2007-2009; U.S. District Judge, 

Southern District of New York, 1988- 

2006 

John Negroponte 

Deputy Secretary of State, 2007-2009; 

Director of National Intelligence, 2005- 

2007 

Thomas Pickering 

Under Secretary of State for Political 

Affairs, 1997-2000; Former U.S. 

Ambassador 

Frances Townsend 

Assistant to the President for Homeland 

Security and Counterterrorism, 2004-2008 

Kenneth L. Wainstein 

Assistant to the President for Homeland 

Security and Counterterrorism, 2008- 

2009; Assistant Attorney General for 

National Security, Department of Justice, 

2006-2008 

Juan Zarate 

Deputy National Security Advisor, 

Combating Terrorism, 2005-2009; 

Assistant Secretary of the Treasury, 

Terrorist Financing and Financial Crimes, 

2004-2005

Case 8:12-cv-02297-AW Document 3-3 Filed 08/02/12 Page 1 of 20
























EXHIBIT 4




______________________________ 

) 



) 

Plaintiffs, ) 

) 

v. ) Civil Action No. 

) 


) 

Defendants. ) 

_____________________________ ) 

DECLARATION OF JOSHUA ZIMMERBERG 

I, Joshua Zimmerberg, hereby declare as follows: 

1. Since 1990, I have served as the Chief of the Laboratory of Cellular and 

Molecular Biophysics at the National Institute of Child Health and Human Development 

(“NICHD”) which is a part of the National Institutes of Health (“NIH”) in Bethesda, Maryland. 

Since 1990, I have also served as the Chief for the Section on Membrane and Cellular 

Biophysics at NICHD. I hold the rank of Captain in the Commissioned Corps of Public Health 

Service. I have M.D. and Ph. D. degrees from the Albert Einstein College of Medicine in New 

York. I am over the age of 18 years and I make this declaration based on my personal 

knowledge of the matters stated herein. 

2. I first came to NIH in 1983 after a post-doctoral fellowship at Stanford 

University. My current position is classified at the Senior Executive Service (“SES”) level. I 

have held an SES level position since 1990, which is also the year I joined the Commissioned 

Corps of Public Health Service. In addition to the positions described above, I am also the 

present Director of the NASA/NIH Center for Three-Dimensional Tissue Culture. A position I


have held since 1995. From 2007 to the present, I have also served as the Head of the Program 

on Physical Biology at NICHD. 

3. In broad terms, my responsibilities at NICHD include building teams of 

researchers charged with analyzing a number of biological processes to better understand how 

diseases develop. My work concentrates on membrane biophysics, which are basic to the flu, 

diabetes, malaria, muscular dystrophy, and a host of other diseases. The work that is done at 

NICHD is on the frontiers of science and NICHD has been credited with numerous 

advancements in public health, including improvements in infant mortality rates, the treatment of 

diabetes, and HIV transmission. My most recent publication is in the area of traumatic brain 

injury induced by bomb blasts. 

4. In my current position, I do not participate in any rule making function. I do not 

oversee any procurement contracts, other than minor purchases related to equipment. My 

research does not have any direct commercial application and the parts of NICHD that I oversee 

do not have any partnerships or projects with private sector companies. To the contrary, the 

research performed at NICHD, and my lab in particular, is long range research that commercial 

enterprises typically do not engage in because it does not offer any hope or assurance of short 

term commercial application. The research is, however, invaluable to the field of science and the 

study of diseases. 

5. Since becoming an SES level employee, I have been responsible for making 

certain financial disclosures on Office of Government Ethics (“OGE”) form 278. I understand 

that the recently enacted Stop Trading on Congressional Knowledge (“STOCK”) Act, P.L. 112- 

105, 126 Stat 291 will permit my form 278 to be broadly available to the public on the internet 

2


and in searchable databases. This action poses a serious threat to me and my family both 

personally and professionally. 

6. First, I have been a victim of financial fraud in the past when an unauthorized 

person stole my information to open a line of credit. Providing greater access to information 

about myself and my family will expose us to further risk of identity theft and fraud. 

7. Second, I have three minor children for whom I maintain custodial and joint 

accounts. I understand that the Stock Act will require me to furnish the name and graded level of 

balance of these accounts in addition to my own. The same is true for my wife, with whom I 

hold joint accounts and assets, as well as her personal accounts. One of my sons has a disability 

that has and will require long-term care. Unlike our peers in academia or industry, NIH 

employees and Officers cannot consult for industry. We have chosen to save and invest in order 

to provide for him and the future uncertainties of his brothers. I believe that my ability to 

rationally invest will be adversely affected by the publication of my transactions, because I will 

always have to test my investment decisions against a litmus test of public ridicule for no public 

good. Furthermore, I do not want my children, siblings, neighbors, relatives or others to know 

the details of my finances. This exposure has the potential to poison relationships for many 

reasons. 

8. Third, it is a fact that funding for basic science research has seen a precipitous 

drop in funding over the years as the economy has worsened and spending is reduced. Placing 

financial information in the public domain about scientists and researchers at NIH such as myself 

will necessarily interject personal financial status into what should be a public debate about 

funding for meritorious work that benefits human kind. This affects me personally to the degree 

3


that I, my family, and my community benefit from the country maximizing its utility of these 

diminishing resources. 

9. Fourth, there is no question that the Stock Act will impact the ability to recruit 

capable scientists to public service, which will affect me as described above. I am already aware 

of individuals that have resigned positions or refused to apply for positions that include a Stock 

Act disclosure obligation. This directly harms the United States’ unimpaired ability to conduct 

research into critical areas not covered by commercial interests. 

10. Fifth, my compensation is subject to review on a yearly basis and dissemination 

of my financial information will prejudice me and others in salary negotiations – or negotiations 

of any kind, including buying a car, selling or buying a home, or negotiating compensation for a 

new job. 

11. Sixth, my field is based on peer review and the possibility of jealousy and 

professional recrimination between my peers is a source of serious concern and will likely 

impact the quality of the peer review process, which will directly affect my career. 

12. Seventh, I travel abroad for work and for pleasure on occasion. The threat that I 

will be kidnapped based on readily available information on my assets is a grave concern. 

13. Finally, I believe that NIH already has systems in place to avoid conflicts of 

interest and exploitation of information for commercial benefit, although I have virtually no 

access to such information or occasion for conflicts of interest. NIH already provides extensive 

training to avoid trading in stocks that may have applications even remotely related to our 

research. Although anecdotal, I have been told that there are thousands of companies whose 

stock NIH employees are prohibited from buying. 

4



EXHIBIT 5






EXHIBIT 6






EXHIBIT 7





Exhibit 8




_____________________________ 

) 


ASSOCIATION, et al., ) 

) 

Plaintiffs, ) 

) 


) 


) 

Defendants. ) 

_____________________________ ) 

NOTICE OF FILING OF DOCUMENT UNDER SEAL 

Exhibit 8, which is an attachment to Plaintiffs’ Memorandum of Points and 

Authorities in Support of Motion for Preliminary Injunction, will be filed with the Clerk’s Office 

in PDF format within 24 hours of the filing of this Notice so that it may be electronically filed 

under seal. 












Office: (202) 663-8000 

Fax: (202) 663-8007 






Counsel for Plaintiffs







Office: (202) 457-0800 

Fax: (202) 457-0805 




Exhibit 9




_____________________________ 

) 



) 

Plaintiffs, ) 

) 


) 


) 

Defendants. ) 

_____________________________ ) 





under seal. 












Office: (202) 663-8000 

Fax: (202) 663-8007 













Office: (202) 457-0800 

Fax: (202) 457-0805 




Exhibit 10




_____________________________ 

) 



) 

Plaintiffs, ) 

) 


) 


) 

Defendants. ) 

_____________________________ ) 





under seal. 












Office: (202) 663-8000 

Fax: (202) 663-8007 













Office: (202) 457-0800 

Fax: (202) 457-0805 




EXHIBIT 11







______________________________ 

) 



) 

Plaintiffs, ) 

) 


) 


) 

Defendants. ) 

_____________________________ ) 

ORDER 

This matter came before the Court on Plaintiffs’ Motion for Preliminary Injunction. 

After consideration of the Motion and supporting papers and the Opposition thereto, it the Court 

finds that Plaintiffs have shown a clear likelihood that they will succeed on the merits, that they 

will suffer imminent and irreparable injury absent preliminary injunctive relief, that the balance 

of equities weighs in their favor, and that the public interest supports issuance of an injunction to 

protect their constitutional rights. Accordingly, it is by this Court this ____ day of 

_____________________, 2012, 

ORDERED AND ADJUDGED that Plaintiff’s Motion is hereby GRANTED, and it is 

FURTHER ORDERED that 

1) All Defendants, and their officers, agents and employees, as well as all other 

persons acting in active concert or participation with them, are hereby enjoined, 

until further order of the Court, from implementing Section 11 of the STOCK Act 

to make financial disclosure forms of covered Executive Branch employees or the


information contained in them available on the websites of any agency of the 

United States or otherwise available on the Internet, 

2) All Defendants, and their officers, agents and employees, as well as all other 

persons acting in active concert or participation with them, are hereby enjoined, 

until further order of the Court, from requiring employees to submit financial 

disclosure information so long as such information is subject to Internet 

publication by federal agencies. It is 

FURTHER ORDERED, that as Defendants will not suffer financial damage as a 

result of this injunction, Plaintiffs shall not be required to post a bond, and this 

injunction shall be effective immediately. 

SO ORDERED. 

Dated: _______________________ 

___________________________ 

United States District Judge 

2

Complaint - Senior Executives Association

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