Plaintiffs' Motion to Extend the Temporary Preliminary Injunction

Case 8:12-cv-02297-AW Document 37 Filed 10/18/12 Page 1 of 5____________________________________SENIOR EXECUTIVESASSOCIATION, et al.,UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLANDPlaintiffs,v. No. 8:12-cv-2297-AWUNITED STATES, et al.,Defendants.____________________________________PLAINTIFFS’ MOTION TO EXTENDTHE TEMPORARY PRELIMINARY INJUNCTIONIn light of the new statute enacted by Congress and signed by the President onSeptember 28, 2012, plaintiffs hereby move to extend the duration of the temporarypreliminary injunction that was entered in this case on September 13, 2012 (ECF No. 27),until May 31, 2013. Defendants do not consent to this motion.ArgumentThis Court has already found, preliminarily,— that “Plaintiffs have shown a likelihood of prevailing on the merits oftheir right to privacy claim,”— that “Plaintiffs have shown that they are likely to suffer irreparable harmin the absence of preliminary injunctive relief,”— that “The balance of the equities tips overwhelmingly in Plaintiffs’favor,” and— that “Granting Plaintiffs’ Motion for Temporary Preliminary Injunctionserves the public interest for a myriad of reasons.”Memorandum Opinion of September 13, 2012, at 10, 16, 17 & 19 (ECF No. 26).

Case 8:12-cv-02297-AW Document 37 Filed 10/18/12 Page 2 of 5Nothing has happened to change those findings. One major thing has happened toprovide further support for those findings, namely, that Congress has now even moreformally recognized that the dangers to which plaintiffs called attention are quite seriousand require careful evaluation.On September 28, 2012, both chambers of Congress passed, and the Presidentsigned, S. 3625, entitled “An Act [t]o change the effective date for the internet publicationof certain information to prevent harm to the national security or endangering the militaryofficers and civilian employees to whom the publication requirement applies, and for otherpurposes.” A copy of the new statute was attached to defendants’ recent filing (ECF No. 36).The new statute contains two major provisions. First, it extends until December 8,2012, the deadline for publication of federal employees’ personal financial information onthe Internet. 1 Second, it requires the Director of the Office of Personnel Management,within 30 days, to contract with the National Academy of Public Administration to“conduct a study of issues raised by website publication of financial disclosure forms as isrequired under the STOCK Act,” and to “issue a report containing findings andrecommendations” regarding those issues. The report is to be submitted to Congress andthe President “[n]ot later than 6 months after the date of enactment of this Act,” (i.e., byMarch 28, 2013). The study must:examine the nature, scope, and degree of risk, including risk of harm tonational security, law enforcement, or other Federal missions and risk ofendangerment, including to personal safety and security, financial security(such as through identity theft), and privacy, of officers and employees and1 The extension does not apply to the President, the Vice President, Members of Congress,candidates for Congress, and a few dozen cabinet secretaries and similar top governmentofficials who are nominated for their positions by the President and confirmed by theSenate. See S. 3625 § 1(b). Plaintiffs do not represent such top officials and do not seek toenjoin application of the STOCK Act’s publication requirement as to them. 2

Case 8:12-cv-02297-AW Document 37 Filed 10/18/12 Page 3 of 5their family members, that may be posed by website and other publicationof financial disclosure forms and associated personal information[.]In other words, this congressionally-commissioned study is to look at precisely the issuesraised by this lawsuit.For the same reasons why it made no sense for the parties to brief, and for thisCourt to decide, the weighty constitutional issues posed by the STOCK Act in September,when there was reason to believe that Congress would take action that might moot or atleast change those issues, it continues to make no sense for the parties to brief, and for thisCourt to decide, these weighty issues when Congress will be reconsidering them in a fewmonths based on a study that will provide Congress — and, if this litigation continues, thisCourt — with valuable information that is not now available.Indeed, Congress may take further legislative action to amend the STOCK Actbefore the end of this year in order to avoid the obviously senseless outcome of havingsensitive financial information posted irretrievably on the Internet before its own studyconcludes that such publication would endanger national security. As explained in theattached Declaration of William L. Bransford, there was a tentative bipartisan agreement inSeptember to extend the publication by a year pending the results of the study, but “theagreement failed to become legislation,” and the short delay until December 8 — whenCongress will be back in session after the election — was passed as a compromise. Aspokesperson for Senator Joe Lieberman, Chairman of the Senate Committee on HomelandSecurity and Governmental Affairs and the sponsor of S. 3625, explained on September 28that “[t]he House action today gives us all a little more breathing room to ensure that ournational security and the safety of high-ranking officials in sensitive positions are notthreatened by the online publication of their financial information,” Seung Min Kim, 3

Case 8:12-cv-02297-AW Document 37 Filed 10/18/12 Page 4 of 5Congress passes quick fix to STOCK Act, POLITICO, Sept. 28, 2011, http://www.politico.com/blogs/on-congress/2012/09/congress-passes-quick-fix-to-stock-act-136932.html, andCongressman Moran is committed to introducing legislation to extend the deadline throughthe due date for the report, see Jack Moore, Lawmaker plans further delay – and eventualend – to STOCK Act reporting requirement, FEDERALNEWSRADIO.COM, Oct. 3, 2012,http://www.federalnewsradio.com/204/3064883/Lawmaker-plans-further-delay---andeventual-end---to-STOCK-Act-reporting-requirement.Because the National Academy’s study and recommendations must be transmittedto Congress and the President by March 28, 2013, the temporary injunction in this caseshould be extended until at least May 31, 2013, for three reasons: first, so that Congressand the Executive Branch will have an opportunity to take action before this Court needs toact — perhaps mooting the case or at least significantly changing its parameters; second, sothat the parties to this lawsuit will have access to the study and recommendations and canmake use of those materials in any further briefs that may need to be filed; and third, so thatthe Court itself will have the benefit of the facts developed by the National Academybefore having to render a decision. At a minimum, the temporary injunction should beextended through the end of the year to await congressional action in November orDecember.ConclusionFor the reasons stated above, the reasons stated in plaintiffs’ earlier papers, and thereasons stated in this Court’s earlier Memorandum Opinion (all of which are incorporatedhere by reference), the motion should be granted and the temporary preliminary injunctionshould be extended until May 31, 2013, or at a minimum through December 31, 2012. The 4

Case 8:12-cv-02297-AW Document 37 Filed 10/18/12 Page 5 of 5Court should also direct the defendants to file a copy of the report produced by the NationalAcademy of Public Administration when it becomes available.A proposed order is attached.Dated: October 18, 2012Respectfully submitted,/s/ Daron T. Carreiro____________________Jack McKay (D. Md. Bar No. 05628)Thomas G. AllenDaron T. Carreiro (D. Md. Bar No. 18075)Kristen E. BakerVernon C. Thompson, Jr.PILLSBURY WINTHROP SHAW PITTMAN LLP2300 N Street, N.W.Washington, DC 20037Office: (202) 663-8000Fax: (202) 663-8007Email: jack.mckay@pillsburylaw.comthomas.allen@pillsburylaw.comdaron.carreiro@pillsburylaw.comkristen.baker@pillsburylaw.comvernon.thompson@pillsburylaw.com/s/ Arthur B. Spitzer____________________Arthur B. Spitzer (D. Md. Bar No. 08628)American Civil Liberties Unionof the Nation’s Capital4301 Connecticut Avenue, N.W., Suite 434Washington, DC 20008Office: (202) 457-0800Fax: (202) 457-0805Email: artspitzer@aclu-nca.orgCounsel for Plaintiffs 5