Application — Michael Ward, et al., Applicants v. Bennie G. Thompson, in His Official Capacity as Chairman of the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol, et al.

Supreme Court briefOct 24, 2022

Ask Donna

What actually matters in this document.

Text

No. 22AIn the

Supreme Court of the United States

DR. MICHAEL P. WARD, D.O. and DR. KELLI WARD, D.O., and

MOLE MEDICAL SERVICES, P.C., an Arizona Professional Corporation,

Applicants,

BENNIE G. THOMPSON, et al.,

Respondents.

To the Honorable Elena K agan, Associate Justice of the Supreme Court

of the United States and Circuit Justice of the Ninth Circuit

EMERGENCY APPLICATION FOR STAY

A lexander Kolodin

Davillier Law Group, LLC

4105 North 20th Street, Suite 110

Phoenix, AZ 85016

(602) 730-2985

akolodin@davillierlawgroup.com

Admission Pending

Laurin H. Mills

Counsel of Record

Samek | Werther | Mills LLC

2000 Duke Street, Suite 300

Alexandria, VA 22314

(703) 547-4693

laurin@samek-law.com

Brant C. Hadaway, B.C.S.

Special Counsel to the

Davillier Law Group

Hadaway, PLLC

2425 Lincoln Avenue

Miami, FL 33133

(305) 389-0336

Attorneys for Applicants

316603

(800) 274-3321 • (800) 359-6859

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

The parties to the proceeding below are:

Applicants, Dr. Michael P. Ward, Dr. Kelli Ward, and Mole Medical

Services, P.C., were Plaintiffs in the district court and Appellants in the court of

appeals.

In the district court, Applicants moved for and were denied a motion for

injunction pending appeal or, in the alternative, an administrative injunction.

Applicants filed an emergency motion for an injunction pending appeal in the

appellate court, which was denied by a split-panel decision dated October 22,

2022.1 Judge Ikuta wrote a ten-page dissent.

Respondents are Rep. Bennie G. Thompson, in his official capacity as

Chairman of the House Select Committee to Investigate the January 6th Attack on

the United States Capitol, the Select Committee to Investigate the January 6th

Attack on the United States Capitol, a committee of the House of Representatives,

and T-Mobile USA, Inc., a Delaware corporation. Applicants were Defendants in

the district court and are the Appellants in the appellate court.

The Ninth Circuit issued its decision in a very unusual Saturday evening ruling at

7:37 p.m., Eastern time.

The related proceedings below are:

1. Dr. Michael P. Ward, D.O, et al v. Bennie G. Thompson, et al, No. 22-16473

(9th Cir.) – Emergency Motion for Injunction Pending Appeal Denied on

October 22, 2022.

2. Dr. Michael P. Ward, D.O, et al v. Bennie G. Thompson, et al, Case No.

3:22-cv-08015-PCT-DJH (D. Ariz.) – Motion for Injunction Pending Appeal

Denied on October 7, 2022.

CORPORATE DISCLOSURE STATEMENT

Per Supreme Court Rule 29, Applicant Mole Medical Services, P.C. states

that it is a privately held Arizona professional corporation and has no parent or

subsidiary.

iii

TABLE OF CONTENTS

OPINIONS BELOW ................................................................................................12

JURISDICTION.......................................................................................................12

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..............13

BACKGROUND AND PROCEDURAL HISTORY .............................................13

ARGUMENT ...........................................................................................................16

I. THERE IS A REASONABLE PROBABILITY THAT FOUR

JUSTICES WILL CONSIDER THE ISSUE SUFFICIENTLY

MERITORIOUS TO GRANT CERTIORARI. .............................................17

II. THERE IS A FAIR PROSPECT THAT A MAJORITY OF

THE COURT WOULD VOTE TO REVERSE THE ORDER BELOW

OR, ALTERNATIVELY, A FAIR PROSPECT THAT THE COURT

WOULD GRANT A PETITION FOR A WRIT OF MANDAMUS. ...........21

III. APPLICANTS WILL BE IRREPARABLY HARMED ABSENT A

STAY...........................................................................................................23

IV. THE BALANCE OF THE EQUITIES AND RELATIVE HARMS

FAVOR A STAY. .......................................................................................24

CONCLUSION ........................................................................................................25

TABLE OF AUTHORITIES

Cases

Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021) ........ passim

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................7

Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S.

1 (1961) ..................................................................................................................8

Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................22

Hollingsworth v. Perry, 558 U.S. 183 (2010) ....................................... 16, 17, 21, 24

McDaniel v. Sanchez, 448 U.S. 1318 (1980) (Powell, J.) .......................................23

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ......................................5

Mohawk Indus. v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 175 L. Ed. 2d

458 (2009) ............................................................................................................17

NAACP v. Alabama, 357 U.S. 449 (1958) .............................................................5, 9

New York v. Kleppe, 429 U.S. 1307, 97 S. Ct. 4, 50 L. Ed. 2d 38 (1976) ...............23

New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) ................................6

Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319 (1994) .....................16

Perry v. Schwartzenegger, 591 F.3d 1147 (9th Cir. 2010) ............................... 3, 4, 7

Republican Nat’l Comm. v. Pelosi, No. 22-5123, 2022 U.S. App. LEXIS

26068 (D.C. Cir. Sep. 16, 2022) ..........................................................................18

Republican Nat’l Comm. v. Pelosi v. Pelosi, et al, Case No. 22-5123 (D.C.

Cir.) (Order of May 25, 2022) ..............................................................................18

Republican National Committee (“RNC ”) v. Pelosi, Civil Action No. 22659 (TJK), 2022 U.S. Dist. LEXIS 78501 (D.D.C. May 1, 2022) ............... 17, 18

Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020) ........................................ 19-20

Ward v. Thompson, No. CV-22-08015-PCT-DJH, 2022 U.S. Dist. LEXIS

184204 (D. Ariz. Oct. 7, 2022) ............................................................................24

Statutes

U.S. Const., Amend. I ...................................................................................... passim

U.S. Const., Amend. V...................................................................................... 10, 11

28 U.S.C. § 1253 ......................................................................................................12

28 U.S.C. § 1254(1) .................................................................................................12

28 U.S.C. § 1651(a) .................................................................................................12

Other Authorities

Areeba Shah, “The Monster”: Ex-Jan. 6 investigator sounds alarm

over mysterious WH call — here’s what we know, SALON (available at:

https://www.salon.com/2022/09/26/the-monster-ex-jan-6-investigatorsounds-alarm-over-mysterious-wh-call--heres-what-we-know/ (Sept. 26,

2022) ............................................................................................................... 14-15

Jacqueline Alemany and Josh Dawsey, Ex-staffer’s unauthorized

book about Jan. 6 committee rankles members, THE WASHINGTON POST

(available at: https://www.washingtonpost.com/politics/2022/09/25/exstaffers-unauthorized-book-about-jan-6-committee-rankles-members/)

(last updated Sept. 25, 2022) (last accessed Sept. 25, 2022) .................................2

Jonathan Turley, The Ninth Circuit Rules That There is no Chilling Effect

in Forcing GOP Leaders to Hand Over Phone Records to Democrats

(available at: https://jonathanturley.org/2022/10/23/chilling-or-glacialthe-ninth-circuit-rules-that-there-is-no-chilling-effort-in-forcingrepublican-leaders-to-hand-over-phone-records-to-democrats/) (last

accessed Oct. 23, 2022) ........................................................................................19

Michelle Rindels, Jackie Valley, and Riley Snyder, Report: Nevada GOP

chairman served FBI search warrant over ‘alternate elector ’ actions,

THE NEVADA INDEPENDENT (available at:

https://thenevadaindependent.com/article/report-nevada-gop-chairmanserved-fbi-search-warrant-over-alternate-elector-actions) (published

June 22, 2022) (last accessed Oct. 23, 2022) ................................................. 20-21

S. Sinnar, Questioning Law Enforcement: The First Amendment and

Counterterrorism Interviews, 77 Brooklyn L. Rev. 41 (Fall 2011) .......................2

Rules

Sup. Ct. R. 10(a).......................................................................................................18

Sup. Ct. R. 10(c).......................................................................................................19

vii

TO THE HONORABLE ELENA KAGAN,

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:

This is an unprecedented case with profound precedential implications for

future congressional investigations and political associational rights under the First

Amendment. In a first-of-its-kind situation, a select committee of the United States

Congress, dominated by one political party, has subpoenaed the personal telephone

and text message records of a state chair of the rival political party relating to one

of the most contentious political events in American history—the 2020 election

and the Capitol riot of January 6, 2021.

The subpoena was served on Applicants’ mobile telephone service provider,

T-Mobile, in January 2022. Applicant immediately filed suit and moved to quash

the subpoena. The Select Committee, however, sought and obtained four stipulated

extensions to respond to the motion to quash. In late July 2022, however, the

district court refused to grant any further extensions and forced the Select

Committee to brief the issue.

Applicant, Dr. Kelli Ward (“Dr. Ward”), is a practicing physician and the

Chairwoman of the Arizona Republican Party. Dr. Ward’s role in the 2020 election

in Arizona and its aftermath is a matter of public record. The Select Committee has

not alleged that she was in or even near the Capitol on January 6, 2021.

If Dr. Ward’s telephone and text message records are disclosed,

congressional investigators are going to contact every person who communicated

with her during and immediately after the tumult of the 2020 election. That is not

speculation, it is a certainty.2 There is no other reason for the Committee to seek

this information. See Exh. A, Dissent Op. p. 5. There can be no greater chill on

public participation in partisan politics than a call, visit, or subpoena, from federal

investigators. S. Sinnar, Questioning Law Enforcement: The First Amendment and

Counterterrorism Interviews, 77 Brooklyn L. Rev. 41, 67 (Fall 2011) (“Perhaps the

most common harm . . . resulting from law enforcement investigations into

political and religious expression is the chilling impact on such expression . . . .”).

This Application pertains to the substantial uncertainty, which is evidenced

by the decision of a split panel in the Ninth Circuit below, over how to determine

whether a plaintiff has adequately stated a claim for infringement of core political

associational rights under this Court’s holding in Americans for Prosperity

Foundation v. Bonta (“Bonta”), 141 S. Ct. 2373 (2021). Specifically, does Bonta

require a presumption that any compelled disclosure of the identity of persons

See Jacqueline Alemany and Josh Dawsey, Ex-staffer’s unauthorized book about

Jan. 6 committee rankles members, THE WASHINGTON POST (available at:

https://www.washingtonpost.com/politics/2022/09/25/ex-staffers-unauthorizedbook-about-jan-6-committee-rankles-members/) (last updated Sept. 25, 2022) (last

accessed Sept. 25, 2022). Former Congressman Riggleman’s book details exactly

what the Select Committee does with telephone and text message metadata, which

is to create a web of contacts that the Committee can then investigate.

who have communicated with each other over their political views burdens

associational rights under the First Amendment, and that the compelled

disclosure must therefore be subjected to exacting scrutiny?

The panel majority found this case to be distinguishable from Bonta on

grounds that “the subpoena does not target any organization or association” since

the investigation “is not about Ward’s politics” but “her involvement in the events”

leading up to January 6 – as if any such involvement would have been unrelated to

her role as chair of the Republican Party of Arizona. Ex. A, Maj. Op. at 4.

Accordingly, the panel majority found no “reason to think that compliance with the

subpoena will burden association.” Id. at 4-5. Thus, the majority concluded that

Appellants have not raised a serious question of associational rights under the First

Amendment. Id.

Applying the outdated Ninth Circuit standard in Perry v. Schwartzenegger,

591 F.3d 1147 (9th Cir. 2010) (which predated Bonta by over a decade), the

majority found that “the party resisting disclosure must make a prima facie

showing that enforcement will result in (1) harassment, membership withdrawal, or

discouragement of new members, or (2) other consequences which objectively

suggest an impact on, or chilling of, the members associational rights.” Maj. op. at

3-4 (quoting Perry at 1160) (citation omitted) (cleaned up). The majority held that

“before subjecting a compelled disclosure to heightened scrutiny under the First

Amendment,” the Court “must determine that ‘disclosure of the information will

have a deterrent effect on the exercise of protected activities.’” Maj. Op. at 4

(quoting Perry at 1162) (emphasis added). Proving what will happen in the future

is a high burden that very few litigants have ever met.

The majority rejected the notion that the subpoena is about Dr. Ward’s

“politics” while, at the same time, acknowledging that “some of the people with

whom Ward communicated may be members of a political party[.]” Id. The

majority raised the proposition that not every subpoena for records implicates First

Amendment rights, otherwise ‘[n]arcotics traffickers, or anyone else who might

face such subpoenas, would be well advised to make at least a few calls to their

preferred political party.” Id. at 5-6.

The majority nevertheless concluded that, even if exacting scrutiny were to

apply, the Committee’s subpoena “would satisfy it.” Id. at 63. The majority held

that “[t]he subpoena is substantially related to the important government interest in

investigating the causes of the January 6 attack and protecting future elections

from similar threats.” Id. The essence of that holding is that the importance of the

Select Committee’s investigation trumps any First Amendment political

associational concerns raised by Applicant. That holding flies in the face of an

That ruling must be viewed as dicta. The question of whether the subpoena could

survive exacting analysis was not properly before the panel on a motion for a stay.

unbroken line of precedent since this Court’s unanimous landmark decision in

NAACP v. Alabama, 357 U.S. 449, 342 (1958) (protecting the identities of

members of the Alabama chapter of the NAACP and holding that such

governmental inquiries should be subject to the “closest scrutiny”); see also

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (holding that the

First Amendment protects anonymous speech). The Committee’s investigative

interests do not automatically wipe away all countervailing constitutional

considerations when a partisan congressional committee is demanding access to

the records and contacts of their political opponents.

Judge Ikuta correctly construed Bonta in her dissent as mandating that any

compelled disclosure of political association, such as in this case, must be greeted

with a presumption that it burdens First Amendment rights and therefore “must be

reviewed with exacting scrutiny.” Dissent Op. at 3 (citing Bonta, 141 S. Ct. at

2383). The dissent noted the Supreme Court’s admonition that “‘[w]hen it comes

to the freedom of association, the protections of the First Amendment are triggered

not only by actual restrictions on an individual’s ability to join with others to

further shared goals,’ but also by the mere ‘risk of a chilling effect on

association.’” Dissent Op. at 1 (quoting Bonta, 141 S. Ct. at 2389). The

Committee’s subpoena, the dissent opined, is the very sort of inquiry that would

“discourage citizens from exercising rights protected by the Constitution. Id.

(quoting Bonta, 141 S. Ct. at 2384).4

The dissent concluded that the panel’s majority opinion conflicts with Bonta.

Id. The dissent construed Bonta to mean that “whenever the government compels

disclosure of members’ identities, it burdens the First Amendment right of

expressive association.” Id. at 2 (citing Bonta at 2382). Judge Ikuta cited to Justice

Sotomayor’s dissent in Bonta, in which Your Honor joined. Id. (citing Bonta at

2395 (Sotomayor, J., dissenting) (stating that, in Bonta, the Court “presumes . . .

that all disclosure requirements impose associational burdens”)). By way of

example, Judge Ikuta pointed to the First Amendment’s protection of a reporter’s

phone records from a government subpoena. Id. (citing New York Times Co. v.

Gonzales, 459 F.3d 160, 168 (2d Cir. 2006)). The telephone and text message

records of the state chair of a major political party should enjoy at least as much

First Amendment protection as the identities of a journalist’s confidential sources.

The dissent also points out that, “by denying the Wards’ motion for an injunction

pending appeal, the majority likely prevents the Wards from raising serious

questions regarding [Appellant] Kelli Ward’s constitutional rights, because once TMobile produces her phone records,” this appeal may be moot. Dissent Op. at 1-2.

This was tacitly acknowledged by the majority where it “assume[d], without

deciding, that the balance of hardships tips sharply in the Wards’ favor,” Maj. Op.

at 2, but the majority provided no explanation as to how the Wards are to

overcome the irreparable harm of disclosure absent an injunction pending appeal.

Judge Ikuta pointed out that Bonta represented a departure from the Supreme

Court’s prior decisions, in that it “subjected disclosure requirements to exacting

scrutiny without first requiring plaintiffs to establish that the disclosure will

actually subject them to threats, harassment, or reprisal.” Dissent Op. at 3. This

sharply contrasts with the majority’s invocation of Perry, a Ninth Circuit opinion

that pre-dated Bonta by over a decade. Bonta, thus, established the presumption

that First Amendment rights are chilled, which should have shifted the burden in

this case to the Select Committee to establish otherwise. Thus, the analytical

framework under which the panel majority analyzed the issue was incorrect and

imposed the burden on the wrong party.

The dissent pointed out that the only logical purpose for the subpoena is that

Dr. Ward’s phone records will “reveal information about other party members,”

which may expose those persons to public scrutiny. Id. at 5. Communications

among members of a political party “implicate a core associational right protected

by the First Amendment.” Id. (citing Buckley v. Valeo, 424 U.S. 1, 15 (1976)).

Thus, under a proper reading of Bonta, “exacting scrutiny applies without any

showing of harassment or other consequences to” Dr. Ward. Id. at 6. Applying

exacting scrutiny, Judge Ikuta concluded that the Committee has not carried its

burden of showing “a substantial relation between the disclosure requirement and a

sufficiently important governmental interest, and that the subpoena is narrowly

tailored to that interest.” Id. (citing Bonta at 2385).

Judge Ikuta readily dispensed with the majority’s analogy of a criminal or

civil subpoena by pointing out that, obviously, not every individual can raise a

First Amendment defense to the compelled disclosure of records. Id. at 8. The First

Amendment protects only expressive association, not commercial or social

associations. Id. (citations omitted). “Indeed,” Judge Ikuta correctly noted, “this

may be why the Wards sensibly did not raise a First Amendment claim with regard

to the subpoena’s compelled production of phone records concerning Ward’s

patients, family, and friends.” Id.

One hopes that the Committee’s object is not to banish those who hold

controversial views from the public square, but that may well be the effect of this

action by the Committee if it remains unchecked. As Judge Ikuta concluded, the

exercise of vigilance in the defense of First Amendment rights is critical, “even

when raised by an individual alleged to have engaged in a nefarious ‘scheme,’—

because “[t]he weakening of constitutional safeguards in order to suppress one

obnoxious group is a technique too easily available for the suppression of other

obnoxious groups to expect its abandonment when the next generally hated group

appears.” Id. at 10 (quoting Communist Party of the U.S. v. Subversive Activities

Control Bd., 367 U.S. 1, 166 (1961) (Black, J., dissenting)). In other words, this

case, if not quickly corrected, will set a precedent that future Congresses and

political partisans may soon live to regret.

The panel majority’s decision is, as Judge Ikuta wrote in her dissent, in

conflict with Bonta. Id. at 1. A lengthy and well-reasoned dissent outlining a

departure from recent Supreme Court precedent is reason enough to conclude that

the issue presented here is substantial and important and likely to raise the interest

of at least four Justices on this Court.

If Your Honor and the other dissenting Justices are correct, Bonta requires

that any compelled disclosure of information pertaining to political association

gives rise to a presumption that it burdens First Amendment rights, and that the

compelled disclosure is therefore subject to exacting scrutiny. Bonta at 2394-95

(Sotomayor, J., dissenting). That is a reasonable interpretation of the majority’s

holding in Bonta, but the Ninth Circuit panel majority’s ruling below suggests that

confusion lingers over who may bring a facial challenge to a compelled disclosure,

and under what circumstances. Is a subpoena requiring disclosure of political

affiliations, for example, to be treated different than a regulation mandating

disclosure of the Schedule B tax form at issue in Bonta?

The concurrences of justices Thomas, Alito and Gorsuch in Bonta also pose

the lingering question of whether exacting scrutiny or some more onerous form of

scrutiny (such as the “closest scrutiny” standard referenced in NAACP v. Alabama)

is the appropriate standard to be applied when core First Amendment political

associational rights are at stake. This case presents an ideal vehicle for deciding

that unresolved issue.

The panel majority’s decision also made an alarming and completely

improper appellate-level factual finding that further warrants a stay. Even though

there was no request from the Select Committee to do so, the panel majority drew

an adverse factual inference against Applicant to supplement a record the Select

Committee failed to make based on Dr. Ward’s invocation of her Fifth Amendment

right not to be compelled to be a witness against herself when testifying at a

deposition before the Select Committee. Panel Op. at 7.

The Select Committee’s subpoena (the timing of which was likely not

coincidental) forced upon Dr. Ward a Hobson’s Choice. On January 26, 2022

(which coincided with when the Committee issued its subpoena), CNN reported

that Deputy Attorney General Lisa Monaco had announced that the Department of

Justice were investigating “fake electoral college certifications” and that the Justice

Department was “going to follow the facts and the law, wherever they lead, to

address conduct of any kind and at any level that is part of an assault on our

democracy.” https://www.cnn.com/2022/01/25/politics/fake-trump-electoralcertificates-justice-department/index.html (last accessed October 23, 2022). The

veracity of that reporting was confirmed five months later when a federal grand

jury in the District of Columbia issued subpoenas to several 2020 Arizona

Republican electors, including Dr. Ward.

The panel majority’s reasoning was misplaced for at least four reasons. First,

Dr. Ward moved to quash the subpoena long before she invoked her Fifth

Amendment right and the motion should have been decided based on the state of

the facts at the time of filing. Second, in its briefing, the Select Committee never

mentioned Dr. Ward’s invocation of her Fifth Amendment rights and never sought

an adverse inference. Third, while it is sometimes appropriate for to permit a fact

finder in a civil proceeding to draw an adverse inference from a litigant’s assertion

of Fifth Amendment rights, the panel majority should not have been acting as a

fact finder. The issue before the Ninth Circuit was whether the First Amendment

question presented was substantial and important. Whether Dr. Ward acted in a

certain way or had a specific intent was not relevant to that inquiry. Similarly, the

issue of whether the subpoena could survive exacting scrutiny was also not

properly before the panel.

Fourth, as Judge Ikuta noted in her dissent, the panel majority made an

impermissible leap that there was any connection between sending an alternate

slate of electors to Washington in mid-December of 2020 and the January 6, 2021

assault on the Capitol. That leap of logic had the result of supplementing a record

concerning the importance of the investigation that the Select Committee failed to

make or even argue. In short, the panel majority conflated allegations of political

disagreement with potential criminality, which was a factor that should have

played no role in its decision regarding the stay. Dissent Op. at 9.

If this Court declines to stay the subpoena, and T-Mobile produces the

requested records, Applicants will be irreparably harmed by the disclosure.

Applicants respectfully ask for a stay or injunction pending the completion of

appellate review or, alternatively, a stay or injunction pending the filing of an

application for a writ of mandamus in this Court.

OPINIONS BELOW

The district court issued two orders that pertain to this Application. First, the

district court granted the Committee’s motion to dismiss on several grounds. Exh.

B. The district court then denied Applicants’ motion for an injunction pending

appeal or for an administrative injunction to allow them the opportunity to bring a

motion in the appellate court. Exh. C. Applicants promptly filed an emergency

motion for injunction pending appeal in the appellate court, which was denied in a

split-panel decision. Exh. A.

JURISDICTION

This Court has jurisdiction over this Application. See e.g., 28 U.S.C. §§

1253, 1254(1), and 1651(a). Applicants have sought the relief requested herein in

the district court and in the Ninth Circuit, both of which were denied. Exh. A.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This Application concerns core political associational rights under the First

Amendment to the United States Constitution.

BACKGROUND AND PROCEDURAL HISTORY

This Application and the underlying appeal relate to the Select Committee’s

investigation of the Capitol riot of January 6, 2021. Applicants are practicing

physicians. See Declarations of Dr. K. Ward, Exh. D, and Dr. M. Ward, Exh. E.

Dr. Kelli Ward has also been the Chairwoman of the Arizona Republican Party

since 2019. Decl. K. Ward, Exh. D at ¶ 8. Due to the controversy surrounding her

service as a Republican nominee for alternate elector and AZGOP Chairwoman in

the aftermath of the 2020 election, she has received numerous death threats,

harassing letters, and phone calls. Id. at ¶ 19.

On January 25, 2022, Mole Medical received a letter dated January 24,

2022, from the T-Mobile Legal and Emergency response team, informing the

Wards that T-Mobile had “received a subpoena for records related to a phone

number associated with” Mole Medical’s T-Mobile account from the Committee.

See Subpoena, Exh. F.5

Paragraph 1 of the subpoena would have also encompassed the telephone

numbers for Dr. Michael Ward and the Wards’ children. The Committee has

agreed to limit the scope of the subpoena only to records pertaining to Dr. Kelli

Ward’s telephone number on the account.

The subpoena seeks in pertinent part:

Connection Records and Records of Session Times and Durations: All

call, message (SMS & MMS), Internet Protocol, (“IP”), and dataconnection detail records associated with the Phone Numbers,

including all phone numbers, IP addresses, or devices that

communicated with the Phone Number via delivered and undelivered

inbound, outbound, and routed calls, messages, voicemail, and data

connections.

Id. at ¶ 2.

The effect of this subpoena would be to gather the telephone numbers (and

via reverse look-up directories the identities) of every person who was in contact

with Dr. Ward during one of the most contentious periods in our political history.

It is no secret what the Committee intends to do with this data. In a recent

appearance on 60 Minutes on September 25, 2022, former Congressman Denver

Riggleman detailed his contact tracing activities on behalf of the Committee and

showed a graphic that he created, called “The

Monster” [Fig 1], which purportedly depicts the

connections between certain partisan political actors

Figure 1

and the White House. Congressman Riggleman confirmed what congressional

investigators will do with the information they seek. “The thread that needs to be

pulled identifying all the White House numbers and why we have certain specific

people, why they were talking to the White House,” he told 60 Minutes.6 The

Areeba Shah, “The Monster”: Ex-Jan. 6 investigator sounds alarm over

precedent set here will be applied in the opposite direction if control of the House

changes and Republicans initiate their own investigations or refocus the

Committee itself for their own purposes.

Shortly after receiving notice of the subpoena, counsel for Applicants

advised T-Mobile that Applicants would seek an order quashing the subpoena. TMobile agreed not to respond to the subpoena until resolution of this case.

Applicants filed their Complaint and Motion to Quash on February 1, 2022. (Dist.

Dkt. 1, 2). Counsel for the Committee did not appear until April 14, 2022, and

promptly sought and obtained a stipulation for extension of time. (Dist. Dkt. 29,

30, 31). The Committee submitted further stipulations for extension of time on

May 17, 2022 (Dist. Dkt. 32), June 27, 2022 (Dist. Dkt. 35), and July 27, 2022.

(Dist. Dkt. 40). The district court only partially granted the latter request, giving

the Committee until August 8, 2022, to respond to the complaint. (Dist. Dkt. 43).

The Committee moved to dismiss on August 8, 2022. (Dist. Dkt. 46). After

briefing and argument, the district court granted the motion to dismiss. (Dist. Dkt.

55). Applicants filed a timely motion for injunction pending appeal or, in the

alternative, for an administrative injunction to allow them to bring the relief sought

mysterious WH call — here’s what we know, SALON (available at:

https://www.salon.com/2022/09/26/the-monster-ex-jan-6-investigator-soundsalarm-over-mysterious-wh-call--heres-what-we-know/ (Sept. 26, 2022).

herein. (Dist. Dkt. 57). The district court denied the motion in full on October 7,

2022. (Dist. Dkt. 68).

As noted above, Applicants sought an injunction pending appeal in the Ninth

Circuit by emergency motion filed on October 10, 2022. The motion was denied by

the panel’s split decision on October 22, 2022. Exh. A.

ARGUMENT

“To obtain a stay pending the filing and disposition of a petition for a writ of

certiorari, an applicant must show (1) a reasonable probability that four Justices

will consider the issue sufficiently meritorious to grant certiorari; (2) a fair

prospect that a majority of the Court will vote to reverse the judgment below; and

(3) a likelihood that irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curium). Such stays are

available where the appeal is still before the Circuit Court provided that the

“weightiest considerations” are present. Packwood v. Senate Select Comm. on

Ethics, 510 U.S. 1319, 1320 (1994). All factors are present here.

Similarly, and alternatively, “[t]o obtain a stay pending the filing and

disposition of a petition for a writ of mandamus, an applicant must show a fair

prospect that a majority of the Court will vote to grant mandamus and a likelihood

that irreparable harm will result from the denial of a stay.” Hollingsworth, 558 U.S.

at 190. In circumstances where a party seeks the issuance of a writ directly to a

federal district court a “question of public importance” or of “such a nature that it

is peculiarly appropriate that such action by this court should be taken” should be

involved.” Id.; see also Mohawk Indus. v. Carpenter, 558 U.S. 100, 111, 130 S. Ct.

599, 607-08, 175 L.Ed.2d 458, 469 (2009) (mandamus relief serves as a “useful

safety valve for promptly correcting serious errors” with respect to disclosure

orders) (cleaned up).

The other portions of this Application are incorporated into this section as if

fully set forth herein.

THERE IS A REASONABLE PROBABILITY THAT FOUR

JUSTICES WILL CONSIDER THE ISSUE SUFFICIENTLY

MERITORIOUS TO GRANT CERTIORARI.

Although there has never been a situation in American history where a

congressional committee dominated by one party has subpoenaed the telephone

and text message records of the state chairwoman chair of a rival party, the facts

and procedural history of this case strongly resemble those of Republican National

Committee (“RNC”) v. Pelosi, which likewise involved a First Amendment

challenge to a subpoena issued by the Committee to a third-party communications

vendor seeking, inter alia, metadata related to RNC employees and partners. See

Civil Action No. 22-659 (TJK), 2022 U.S. Dist. LEXIS 78501, at *9-10 (D.D.C.

May 1, 2022).

In Pelosi, the district court’s ruling on the question of associational rights

heavily focused on the application of Bonta. Republican Nat’l Comm. v. Pelosi,

Civil Action No. 22-659 (TJK), 2022 U.S. Dist. LEXIS 78501, at *56-71 (D.D.C.

May 1, 2022). The D.C. Circuit, unlike the Ninth Circuit, granted an injunction

pending appeal. See Republican Nat’l Comm. v. Pelosi v. Pelosi, et al, Case No.

22-5123 (D.C. Cir.) (Order of May 25, 2022); Sup Ct. R. 10(a) (certiorari

appropriate where a “a United States court of appeals has entered a decision in

conflict with the decision of another United States court of appeals on the same

important matter[.]”). Immediately before oral arguments in Pelosi, the Committee

withdrew its subpoena and the D.C. Circuit then lamented that the case presented

“important and unsettled constitutional questions” which it was now unable to

resolve. Republican Nat’l Comm. v. Pelosi, No. 22-5123, 2022 U.S. App. LEXIS

26068, at *4 (D.C. Cir. Sep. 16, 2022).

Along those same lines, Judge Ikuta’s dissent in this case notes that:

The majority’s view … is in conflict with the Supreme Court’s recent

landmark ruling, Americans for Prosperity Foundation, 141 S. Ct. at

2389. By denying the Wards’ motion for an injunction pending

appeal, the majority likely prevents the Wards from raising serious

questions regarding Kelli Ward’s constitutional rights, because once

T-Mobile produces her phone records, the Wards’ appeal may be

moot.

Exh. A at 8-9; see also Sup. Ct. R. 10(c) (certiorari appropriate where a “United

States court of appeals has … decided an important federal question in a way that

conflicts with relevant decisions of this Court.”).

Given the Committee’s ongoing investigation, as well as the Justice

Department’s parallel national criminal investigation, these distinguished jurists

are right to note that this an issue of the highest importance – it cries out for a

national resolution.

It is not only jurists who have noted the importance of the issues presented

by this case. Professor Jonathan Turley, of the George Washington University Law

School, quickly observed with respect to the panel’s ruling that its “impact on

political speech could be not just chilling but glacial[.]”7 Professor Turley also

criticized its “sweeping” nature and the “the dismissive character of the analysis

over legitimate concerns raised by the forced disclosure of political associations

under the First Amendment.” Id.

This Court was eager to take up another case concerning other important

constitutional issues implicated by the Committee’s subpoenas. See, e.g., Trump v.

Jonathan Turley, The Ninth Circuit Rules That There is no Chilling Effect in

Forcing GOP Leaders to Hand Over Phone Records to Democrats (available at:

https://jonathanturley.org/2022/10/23/chilling-or-glacial-the-ninth-circuit-rulesthat-there-is-no-chilling-effort-in-forcing-republican-leaders-to-hand-over-phonerecords-to-democrats/) (last accessed Oct. 23, 2022).

Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020). The panel majority’s opinion is

that “[t]he investigation . . . is not about Ward’s politics; it is about her

involvement in the events leading up to the January 6 attack[.]” Exh. A, Dissent

Op. at 4. As this Court noted in Mazars, the courts below have been far too

cavalier in making this type of assessment:

We would have to be “blind” not to see what “[a]ll others can see and

understand”: that the subpoenas do not represent a run-of-the-mill

legislative effort but rather a clash between rival branches of

government over records of intense political interest for all involved.

Mazars, 140 S. Ct. at 2034. This Court also found such issues sufficiently weighty

to justify staying the decisions below, including a decision denying preliminary

injunctive relief. Id. at 2028-29.

Although there is ample reason to afford this Court the opportunity to decide

such an important Constitutional question concerning the application of Bonta, it

cannot do so if every such case results in mootness, whether because the

Committee withdraws its subpoena when a case is not going its way; because the

courts below deny a stay in cases where they are inclined to the Committee’s

position; or because federal investigators simply kick down the door of a politician

or political operative to seize his or her cell phone rather than even issuing a

subpoena.8 Thus, if this Court were to somehow find that this case was not likely to

See, e.g., Michelle Rindels, Jackie Valley, and Riley Snyder, Report: Nevada GOP

chairman served FBI search warrant over ‘alternate elector’ actions, THE NEVADA

come before it on certiorari, the entry of writ of mandamus compelling the district

court to stay its judgment prior to the completion of the appellate process would be

appropriate since it would then be the case that “no other adequate means [exist] to

attain the relief” Appellants are seeking. See Hollingsworth, 558 U.S. at 190.

II.

THERE IS A FAIR PROSPECT THAT A MAJORITY OF THE

COURT WOULD VOTE TO REVERSE THE ORDER BELOW OR,

ALTERNATIVELY, A FAIR PROSPECT THAT THE COURT

WOULD GRANT A PETITION FOR A WRIT OF MANDAMUS.

There is every reason to believe that, at a minimum, the same six Justices

who decided Bonta would vote to reverse the decision in this case. First, as Judge

Ikuta noted in her dissent, Bonta rejected prior decisions in that it “subjected

disclosure requirements to exacting scrutiny without first requiring plaintiffs to

establish that the disclosure will actually subject them to threats, harassment, or

reprisal.” Dissent Op. at 3. As the dissent in Bonta righty pointed out, the Court

held “that reporting and disclosure requirements must be narrowly tailored even if

a plaintiff demonstrates no burden at all.” Bonta at 2392 (Sotomayor, J., Breyer J.

and Kagan, J. dissenting). “In so holding, the Court discards its decades-long

requirement that, to establish a cognizable burden on their associational rights,

plaintiffs must plead and prove that disclosure will likely expose them to objective

INDEPENDENT (available at: https://thenevadaindependent.com/article/reportnevada-gop-chairman-served-fbi-search-warrant-over-alternate-elector-actions)

(published June 22, 2022) (last accessed Oct. 23, 2022).

harms, such as threats, harassment, or reprisals.” Id. This observation of the

ramifications of Bonta simply cannot be squared with the panel’s holding, on the

basis of superseded Ninth Circuit precedent, that “before subjecting a compelled

disclosure to heightened scrutiny under the First Amendment, we must determine

that “disclosure of the information will have a deterrent effect on the exercise of

protected activities.” Op. at 4. The dissent observed as much. Dissent Op. at 1.

As well, three of the Justices who concurred in the result in Bonta—Justices

Thomas, Alito, and Gorsuch—may have applied the more exacting standard of strict

scrutiny to compelled disclosures of private political associations. 141 S. Ct. at 238992.

And, even were Bonta not the law, the panel’s conclusion that though the

“Wards have received threatening and harassing messages because of their

political activities[,]” Appellants failed to demonstrate that there was a “reasonable

probability” that others exposed as having associated with them to carry out those

activities would face such threats and harassment, would be absurd. Op. at 4, 6.

Bonta also noted that the Court has previously held “that the freedom of

association may be violated where . . . individuals are punished for their political

affiliation[.]” 141 S. Ct. at 2382 (citing Elrod v. Burns, 427 U.S. 347, 355 (1976)).

There could hardly be a starker example of seeking to punish people for having ties

to political views regarding the outcome of the 2020 presidential election that

many Americans regard as “dissiden[t][.]” Exh. A, Dissenting Op. at 9. While the

Committee does not mete out punishment in a formal sense, “Such identifying

information may expose these members to congressional investigation, perhaps

federal criminal investigation, and related public criticism.” Id. at 5. In a case like

this the punishment is the process; the harm comes from the fear that your views

will be exposed, that you can be the next person to expect a knock on your door

from government investigators, and that you may be required to face the disastrous

personal and financial consequences of having to retain counsel and appear before

the Committee to answer for your political affiliations and opinions. This sets a

terrible precedent for the future of public participation in American politics.

III.

APPLICANTS WILL BE IRREPARABLY HARMED ABSENT A

STAY.

A failure to grant a stay will result in this case becoming moot, thus leaving

Applicants without any remedy for the disclosure on their appeal in the Ninth

Circuit. That easily constitutes irreparable harm. See, e.g., McDaniel v. Sanchez,

448 U.S. 1318, 1322 (1980) (Powell, J.) (recalling circuit court mandate and

granting stay based in part on likely irreparable harm due to mootness); see also

New York v. Kleppe, 429 U.S. 1307, 1310, 97 S. Ct. 4, 6, 50 L.Ed.2d 38, 42 (1976)

(Marshall, J., in chambers) (“Perhaps the most compelling justification for a

Circuit Justice to upset an interim decision by a court of appeals would be to

protect this Court's power to entertain a petition for certiorari before or after the

final judgment of the Court of Appeals.”).

IV.

THE BALANCE OF THE EQUITIES AND RELATIVE HARMS

FAVOR A STAY.

“In close cases the Circuit Justice or the Court will balance the equities and

weigh the relative harms to the applicant and to the respondent.” Hollingsworth,

558 U.S. at 190. Here, the Committee requested, and was granted, extensions for

seven months prior to filing its Motion to Dismiss. See Ward v. Thompson, No.

CV-22-08015-PCT-DJH, 2022 U.S. Dist. LEXIS 184204, at *12 (D. Ariz. Oct. 7,

2022) (“The Court is mindful that the Congressional Defendants have extended the

phone records production date numerous times, which does raise questions about

their immediate need for these records. (Docs. 26, 31, 33, 37, 39, 43, 50).”). Even

then, the Committee would not have filed its Motion to Dismiss when it did had

the district court not forced it to respond. (Doc. 41). To the extent there is any

urgency now, it is urgency entirely of the Committee’s making and does not justify

depriving the Wards of the right to meaningful appellate review in one of the most

important First Amendment cases in history.

CONCLUSION

Based on the foregoing, Applicants respectfully ask that the ruling of the

panel of the Ninth Circuit be stayed, and that Respondent T-Mobile be temporarily

enjoined from complying with the Select Committee’s subpoena.

Dated: October 24, 2022

Respectfully submitted,

ALEXANDER KOLODIN

DAVILLIER LAW GROUP, LLC

4105 North 20th Street, Suite 110

Phoenix, AZ 85016

(602) 730-2985

akolodin@davillierlawgroup.com

Admission Pending

LAURIN H. MILLS

Counsel of Record

SAMEK | WERTHER | MILLS LLC

2000 Duke Street, Suite 300

Alexandria, VA 22314

(703) 547-4693

laurin@samek-law.com

BRANT C. HADAWAY, B.C.S.

Special Counsel to the

Davillier Law Group

HADAWAY, PLLC

2425 Lincoln Avenue

Miami, FL 33133

(305) 389-0336

Attorneys for Applicants

EXHIBIT A

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 1 of 17

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

OCT 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL P. WARD, Dr., D.O., husband; et No. 22-16473

al.,

D.C. No. 3:22-cv-08015-DJH

Plaintiffs-Appellants,

District of Arizona,

Prescott

ORDER

BENNIE G. THOMPSON, in his official

capacity as Chairman of the House Select

Committee to Investigate the January 6th

Attack on the United States Capitol; et al.,

Defendants-Appellees.

Before: SILVERMAN, IKUTA, and MILLER, Circuit Judges.

Order by Judges SILVERMAN and MILLER, Dissent by Judge IKUTA

Appellants, Dr. Kelli Ward et al., brought this action to quash a subpoena

issued by the House Select Committee to Investigate the January 6th Attack that

directs T-Mobile USA, Inc., to release call records from Ward’s phone for the

period of November 1, 2020 through January 31, 2021. The records include

metadata such as the time and duration of incoming and outgoing calls and the

numbers involved; they do not include content or location information. The district

court denied the motion to quash, and Ward now seeks an injunction pending

appeal barring T-Mobile from complying with the subpoena. We deny the

injunction.

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 2 of 17

In Winter v. NRDC, Inc., the Supreme Court held that a party seeking a

preliminary injunction must establish four things: “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.” 555 U.S. 7, 20 (2008) (emphasis added). Despite the language of

Winter, we have held that an injunction does not necessarily require that the party

seeking it be “likely to succeed on the merits.” Rather, “‘serious questions going to

the merits’ and a hardship balance that tips sharply toward the plaintiff can support

issuance of an injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1132 (9th Cir. 2011).

We assume, without deciding, that the balance of hardships tips sharply in

Ward’s favor. Under Alliance for the Wild Rockies, we therefore ask whether Ward

has raised “serious questions going to the merits.” 632 F.3d at 1132. Ward’s claims

rest on the First Amendment and on the Health Insurance Portability and

Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936. The latter claim

is insubstantial, so we focus on the First Amendment claim. As to that claim, we

conclude that Ward has not raised serious questions on the merits—and, a fortiori,

that she is not likely to succeed on the merits.

The First Amendment protects a right to anonymous association. NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958); cf. McIntyre v. Ohio

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 3 of 17

Elections Comm’n, 514 U.S. 334, 342 (1995) (holding that the First Amendment

protects the freedom to publish anonymously). Thus, “before requiring that

organizations reveal sensitive information about their members and supporters,”

we must ask whether the compelled disclosure satisfies exacting scrutiny.

Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2384 (2021). A

compelled disclosure meets the exacting scrutiny standard if (1) there is “a

substantial relation between the disclosure requirement and a sufficiently important

governmental interest,” and (2) the requirement is narrowly tailored. Id. at 2383

(quoting Doe v. Reed, 561 U.S. 186, 196 (2010)).

But the exacting scrutiny test does not apply to all compelled disclosures of

information, regardless of the nature of the information sought. Instead, the

Supreme Court has explained that courts should apply the exacting scrutiny test

“before requiring that organizations reveal sensitive information about their

members and supporters.” Americans for Prosperity Found., 141 S. Ct. at 2384

(emphasis added). And we have previously held that, for any kind of heightened

scrutiny to apply to a compelled disclosure, the party resisting disclosure must

make a “prima facie showing . . . that enforcement . . . will result in (1)

harassment, membership withdrawal, or discouragement of new members, or (2)

other consequences which objectively suggest an impact on, or ‘chilling’ of, the

members’ associational rights.” Perry v. Schwarzenegger, 591 F.3d 1147, 1160

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 4 of 17

(9th Cir. 2010) (quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860

F.2d 346, 349–50 (9th Cir. 1988)). In short, before subjecting a compelled

disclosure to heightened scrutiny under the First Amendment, we must determine

that “disclosure of the information will have a deterrent effect on the exercise of

protected activities.” Id. at 1162; see also Citizens United v. Federal Election

Comm’n, 558 U.S. 310, 370 (2010) (explaining that an as-applied challenge to a

disclosure requirement can succeed only where there is a “reasonable probability

that the group’s members would face threats, harassment, or reprisals if their

names were disclosed”).

Here, there is little to suggest that disclosing Ward’s phone records to the

Committee will affect protected associational activity. Unlike the regulation at

issue in Americans for Prosperity Foundation, which required organizations to

reveal their major donors, this subpoena does not target any organization or

association. The investigation, after all, is not about Ward’s politics; it is about her

involvement in the events leading up to the January 6 attack, and it seeks to

uncover those with whom she communicated in connection with those events. That

some of the people with whom Ward communicated may be members of a political

party does not establish that the subpoena is likely to reveal “sensitive information

about [the party’s] members and supporters.” Americans for Prosperity Found.,

141 S. Ct. at 2384. Grand juries—and, for that matter, civil litigants—routinely

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 5 of 17

employ subpoenas for phone records, and any such subpoena necessarily reveals

something about a person’s associations. We do not read Americans for Prosperity

Foundation as establishing that all of those subpoenas are subject to First

Amendment scrutiny.

To prevail, Ward must therefore identify some reason to think that

compliance with this subpoena will burden association. The district court found

that there is “no evidence to support [the] contention that producing the phone

numbers . . . will chill the associational rights of Plaintiffs or the Arizona GOP,”

and it determined that Ward’s arguments to the contrary are “highly speculative.”

We review that factual finding for clear error. Feldman v. Arizona Sec’y of State’s

Off., 843 F.3d 366, 380 & n.11 (9th Cir. 2016).

The district court’s finding is amply supported by the record. In their

declarations, the Wards say that they use their phones to communicate with

patients in their medical practices, to talk to family and friends, and to “make and

receive calls of a political nature” and “to and from people in the political world.”

Those vague statements do not show that disclosing the phone numbers involved

would reveal anyone’s private organizational membership, much less that the

people involved in the calls would be reluctant to associate with any organization

or political party if their identities were revealed. If declarations like these were

sufficient, it would mean that anyone could raise a First Amendment objection to

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 6 of 17

any subpoena for records of calls that included discussions of politics—or,

presumably, of “social, economic, religious, [or] cultural” matters. Roberts v.

United States Jaycees, 468 U.S. 609, 622 (1984). (Narcotics traffickers, or anyone

else who might face such subpoenas, would be well advised to make at least a few

calls to their preferred political party.) But that is not the law. And although the

declarations also state that the Wards have received threatening and harassing

messages because of their political activities, it does not follow that anyone known

to have called them would face similar harassment.

Because there is no indication that the compelled disclosure in this case

would deter protected associational activity, the exacting scrutiny standard does

not apply. But even if that standard did apply, this subpoena would satisfy it. The

subpoena is substantially related to the important government interest in

investigating the causes of the January 6 attack and protecting future elections

from similar threats. Cf. Trump v. Thompson, 20 F.4th 10, 41 (D.C. Cir. 2021)

(noting that “the January 6th Committee plainly has a ‘valid legislative purpose’”

(quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031–32 (2020))), cert.

denied, 142 S. Ct. 1350 (2022). Ward participated in a scheme to send spurious

electoral votes to Congress, a scheme that the Committee describes as “a key part”

of the “effort to overturn the election” that culminated on January 6. Although

Ward asserts that “[c]ongressional investigators already know what [she] did,” the

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 7 of 17

Committee explains that that is untrue: When the Committee sought to question

her about those activities, she invoked the Fifth Amendment and refused to answer.

In this civil proceeding, it is appropriate to draw adverse inferences from her

assertion of the Fifth Amendment privilege—namely, that Ward’s conduct during

the period in question went beyond simple discussions with her political associates,

and that those with whom she communicated might have the information about her

activities that she refused to provide. See Baxter v. Palmigiano, 425 U.S. 308, 318

(1976).

Having attempted the less intrusive method of asking Ward directly, the

Committee has a strong interest in pursuing its investigation by other means. The

subpoena is a narrowly tailored mechanism for doing so because it seeks only

Ward’s phone records, only from the critical window of November 1, 2020

through January 31, 2021, and only metadata, not content or location information.

Cf. Stipulation of Voluntary Dismissal at 1, Eastman v. Thompson, No. 1:21-cv03273-CJN (D.D.C. June 28, 2022) (dismissing challenge to similar subpoena after

the Committee clarified that it was “not seeking the content of any of Plaintiff’s

communications”).

The temporary injunction entered on October 18, 2022 is lifted. The motion

for injunctive relief (Docket Entry No. 5) is DENIED.

The existing briefing schedule remains in effect.

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 8 of 17

Ward v. Thompson, No. 22-16473

Ikuta, J., dissenting

“First Amendment freedoms need breathing space to survive.” Americans

for Prosperity Found. v. Bonta (APF), 141 S. Ct. 2373, 2389 (2021) (citation and

quotation marks omitted). Therefore, “[w]hen it comes to the freedom of

association, the protections of the First Amendment are triggered not only by

actual restrictions on an individual's ability to join with others to further shared

goals,” but also by the mere “risk of a chilling effect on association.” Id. Here, a

House Select Committee (the Committee) is attempting to obtain the names of the

Arizona Republican Party (the Party) members who spoke to Kelli Ward, the

Party’s chair, during a period of contentious political upheaval. But the Committee

has not provided any explanation as to why the phone records are relevant to its

investigation. Because such government inquiries “discourage citizens from

exercising rights protected by the Constitution,” id. at 2384 (citation and quotation

marks omitted), the Wards’ challenge to the Committee’s subpoena raises at least

“serious questions going to the merits” of their First Amendment claim, All. for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The majority’s

view to the contrary is in conflict with the Supreme Court’s recent landmark ruling,

Americans for Prosperity Foundation, 141 S. Ct. at 2389. By denying the Wards’

motion for an injunction pending appeal, the majority likely prevents the Wards

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 9 of 17

from raising serious questions regarding Kelli Ward’s constitutional rights,

because once T-Mobile produces her phone records, the Wards’ appeal may be

moot. Therefore, I dissent.

The First Amendment right of expressive association protects individuals’

freedom “to associate with others for the common advancement of political beliefs

and ideas.” Kusper v. Pontikes, 414 U.S. 51, 56 (1973). As Americans for

Prosperity Foundation made clear, whenever the government compels disclosure

of members’ identities, it burdens the First Amendment right of expressive

association. 141 S. Ct. at 2382; see also id. at 2395 (Sotomayor, J., dissenting)

(stating that the Court’s opinion “presumes . . . that all disclosure requirements

impose associational burdens”). This is because “[w]hen it comes to a person's

beliefs and associations, [b]road and sweeping state inquiries into these protected

areas . . . discourage citizens from exercising rights protected by the Constitution.”

Id. at 2384 (citation and quotation marks omitted) (alterations in original). The

particular means employed by the government to compel disclosure of members’

identities does not change the analysis. A court order or subpoena compelling

disclosure may burden First Amendment rights just as much as legislation. See,

e.g., NAACP v. Patterson, 357 U.S. 449, 453 (1958) (considering Alabama’s

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 10 of 17

motion for production of the NAACP’s records and papers in litigation); Gibson v.

Fla. Legis. Investigation Comm., 372 U.S. 539, 542 (1963) (considering an order

by a committee of the Florida Legislature to the president of the NAACP’s Miami

branch to appear before it and bring the branch’s membership records). For

example, to the extent a First Amendment right of expressive association protects

reporters from a government subpoena, it also protects their phone records held by

third party telephone providers. New York Times Co. v. Gonzales, 459 F.3d 160,

168 (2d Cir. 2006).

Under Americans for Prosperity Foundation, compelled disclosure

requirements of any sort must be reviewed with “exacting scrutiny.”1 141 S. Ct. at

2383. In a departure from its past cases, the Court subjected disclosure

requirements to exacting scrutiny without first requiring plaintiffs to establish that

the disclosure will actually subject them to threats, harassment, or reprisal.

Following Americans for Prosperity Foundation, courts must presume that a

disclosure requirement burdens First Amendment rights without any showing of

specific deterrence of individual members. Id. In other words, the inherent

A majority of justices in Americans for Prosperity Foundation agreed that

exacting scrutiny or a more rigorous standard of review is applicable. See 141 S.

Ct. at 2383 (plurality opinion); id. at 2390 (Thomas, J., concurring in part and

concurring in the judgment); id. at 2391 (Alito, J., concurring in part and

concurring in the judgment).

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 11 of 17

“deterrent effect of disclosure” is sufficient to establish a First Amendment burden.

Id. at 2382 (citation and quotation marks omitted). And “[e]xacting scrutiny is

triggered by state action” alone, so long as that action “may have the effect of

curtailing the freedom to associate.” Id. (citation and quotation marks omitted).2

In applying exacting scrutiny to a disclosure requirement, a court must determine

whether the government has shown “a substantial relation between the disclosure

requirement and a sufficiently important governmental interest, and that the

disclosure requirement [is] . . . narrowly tailored to the interest it promotes.” Id. at

2385 (cleaned up); see also id. at 2390 (Thomas, J. concurring in part and

concurring in the judgment); id. at 2391 (Alito, J., concurring in part and

concurring in the judgment); John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010).

In this case, Kelli Ward, as the chair of the Republican Party of Arizona, is

responsible for contacting and coordinating with members of her Party about

elections. She plays a heightened role “when there is public controversy

Because Americans for Prosperity Foundation held that a court must

presume that a disclosure requirement burdens First Amendment rights and start its

analysis by determining whether the disclosure requirement is narrowly tailored, it

supersedes Perry v. Schwarzenegger, which held that a plaintiff challenging a

disclosure requirement must first demonstrate that the compelled disclosure will

result in actual harassment or other consequences that will have a chilling effect.

591 F.3d 1147, 1160–61 (9th Cir. 2010). Maj. op. at 3–4.

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 12 of 17

concerning the outcome of an election.” During the period from November 1,

2020 to January 31, 2021 (the period targeted by the Committee’s subpoena), the

legitimacy of the 2020 presidential election was in dispute, and Ward used her

phone to communicate with Party members about the election. Contrary to the

majority’s view that “this subpoena does not target any organization or

association,” Maj. op. at 4, the subpoena on its face compels the disclosure of

identifying information of Party members with whom Ward had contact.

Moreover, because the Committee is “no longer seeking . . . [Ward’s] patient

phone numbers,” and it is unlikely that the duration of Ward’s calls with her

children and parents, would provide the Committee with useful information about

the events surrounding January 6, the only plausible explanation for the

Committee’s interest in Ward’s phone records is that they reveal information about

other Party members. Maj. op. at 5. Such identifying information may expose

these members to congressional investigation, perhaps federal criminal

investigation, and related public criticism.

The communications at issue here between members of a political party

about an election implicate a core associational right protected by the First

Amendment. See Buckley v. Valeo, 424 U.S. 1, 15 (1976) (“[T]he First . . .

Amendment[] guarantee[s] freedom to associate with others for the common

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 13 of 17

advancement of political beliefs and ideas, a freedom that encompasses the right to

associate with the political party of one’s choice.” (cleaned up)). Therefore, under

Americans for Prosperity Foundation, the Committee’s subpoena constitutes a

disclosure requirement that is presumed to burden Ward’s First Amendment right

of expressive association. 141 S. Ct. at 2382–84, 2388. As such, exacting scrutiny

applies without any showing of harassment or other consequences to Ward. Maj.

op. at 4–5. Under this standard of review, the burden is on the Committee to

establish that there is a substantial relation between the disclosure requirement and

a sufficiently important governmental interest, and that the subpoena is narrowly

tailored to that interest. See APF, 141 S. Ct. at 2385.

The Committee has not carried that burden. Even assuming that the

government’s interest in investigating the events of January 6, 2021, is sufficiently

important, the Committee has not provided any evidence or plausible reason to

believe that Ward’s contacts (whether political associates, family, or friends) were

involved in the events of January 6 or explain why information about her

communications has any bearing on the Committee’s investigation. Trying to fill

this gap, the majority speculates that Ward’s invocation of the Fifth Amendment

before the Committee warrants “adverse inferences” that she was engaged in

criminal conduct with her political associates and that those associates “might have

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 14 of 17

the information about her activities that she refused to provide.”3 Maj. op. at 7.

But the Committee itself did not offer this rationale.4 And it is improper for the

majority to hold there is a substantial relationship between the Committee’s

subpoena and its investigation of the events of January 6 based solely on its own

speculation. Because the Committee does not provide any actual explanation for

its inquiry other than its general investigative interests, and therefore has not

shown that there is a substantial relationship between the disclosure requirement

and an important governmental interest, the Wards have shown at least “serious

questions going to the merits” of their First Amendment claim, All. for the Wild

Rockies, 632 F.3d at 1135, if not a likelihood of success, Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008).

In holding to the contrary, the majority relies primarily on the policy concern

that applying the exacting scrutiny test required by Americans for Prosperity

Foundation would lead to absurd results of allowing persons engaged in narcotic

trafficking “or anyone else” to raise a First Amendment objection to subpoenas of

The subpoena issued on January 19, 2022, and Ward did not invoke the

Fifth Amendment until October 4, 2022. So the “adverse inferences” the majority

draws are post-hoc rationalizations that cannot justify the Committee’s issuance of

the subpoena.

Perhaps the Committee would make this argument in response to the

Wards’ arguments on appeal. But because the majority denies the Wards’ motion

for injunctive relief pending appeal, we will likely never know.

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 15 of 17

telephone records. Maj. op. at 6. This concern is unfounded.

First, it is obvious that not every individual can raise a First Amendment

claim to protect compelled disclosure of phone records. Maj. op. at 5–6. The

First Amendment protects only those individuals engaged in expressive

association, meaning that they have joined together to collectively express and

pursue the “views that brought them together” on “political, social, economic,

religious, and cultural” matters. Roberts v. U.S. Jaycees, 468 U.S. 609, 622–23

(1984). By contrast, the First Amendment does not protect commercial or social

associations because those relationships are not formed to collectively express and

pursue shared beliefs. See City of Dallas v. Stanglin, 490 U.S. 19, 24–25 (1989);

IDK, Inc. v. Clark County, 836 F.2d 1185, 1195 (9th Cir. 1988). Indeed, this may

be why the Wards sensibly did not raise a First Amendment claim with regard to

the subpoena’s compelled production of phone records concerning Ward’s

patients, family, and friends.

Moreover, if the requirement that the association be expressive does not

assuage the majority’s fears, the exacting scrutiny standard should. A properly

tailored subpoena, seeking (for example) a narcotics trafficker’s phone records

with regard to known criminal associates, would not be blocked by exacting

scrutiny. When an investigation is based on probable cause that particular

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 16 of 17

individuals are engaging in criminal activity, the government should have no

problem showing a substantial relationship between the disclosure requirement and

a sufficiently important governmental interest, or to show narrow tailoring

regardless of a “few calls” by those individuals to a political party. Maj. op. at 6.

But where a subpoena broadly seeks information about political association and the

government makes no effort to explain why such information is helpful to its wideranging investigation, exacting scrutiny protects core constitutional rights.

Finally, comparing Ward’s coordination of her Party’s activities during a

national election—a core First Amendment activity, Buckley, 424 U.S. at 15—to

the criminal (and commercial) acts of a narcotics trafficker—decidedly nonexpressive activities, IDK, Inc., 836 F.2d at 1195—conflates political dissidence

with criminality. Maj. op. at 6. It was precisely that unconstitutional conflation

that led the Supreme Court to first recognize the right of expressive association.

NAACP, 357 U.S. at 462; see also NAACP v. Button, 371 U.S. 415, 438 (1963)

(“[T]he State’s attempt to equate the activities of the NAACP and its lawyers with

common-law barratry, maintenance and champerty, and to outlaw them

accordingly, cannot obscure the serious encroachment worked by [a state antisolicitation law] upon protected freedoms of expression.”).

III

Case: 22-16473, 10/22/2022, ID: 12570823, DktEntry: 14, Page 17 of 17

Regardless of Ward’s position regarding the 2020 election, her right to

engage in discussions with her political associates remains entitled to First

Amendment protection against the government’s compelled disclosure of her

political affiliations. Maj. op. at 6–7. We must be vigilant to protect First

Amendment rights—even when raised by an individual alleged to have engaged in

a nefarious “scheme,” Maj. op. at 6—because “[t]he weakening of constitutional

safeguards in order to suppress one obnoxious group is a technique too easily

available for the suppression of other obnoxious groups to expect its abandonment

when the next generally hated group appears,” Communist Party of the U.S. v.

Subversive Activities Control Bd., 367 U.S. 1, 166 (Black, J., dissenting). Because

the majority has applied an erroneous legal framework, and the Wards’ claim that

the Committee’s subpoena burdens Kelli Ward’s First Amendment rights at least

raises a serious question on the merits, I dissent.

EXHIBIT B

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael P Ward, et al.,

Plaintiffs,

Bennie G Thompson, et al.,

Defendants.

No. CV-22-08015-PCT-DJH

ORDER

Pending before the Court is Plaintiffs Michael P. Ward and Kelli Ward’s

(“Plaintiffs”) Motion to Quash a Congressional Subpoena Duces Tecum issued by the

United States House of Representatives Select Committee (“Select Committee”) in

furtherance of its investigation into the January 6th attack on the United States Capitol

(Doc. 2). Defendant T-Mobile USA Inc. filed a Response (Doc. 48), and Plaintiffs filed a

Reply (Doc. 52).

Also pending is Defendants Bennie G. Thompson and the Select Committee’s

(“Congressional Defendants”) Motion to Dismiss, which includes arguments responsive to

those made in Plaintiffs’ Motion to Quash (Doc. 46).1 Plaintiffs filed a Response in

Plaintiffs note the Congressional Defendants failed to comply with LRCiv 12.1(c).

(Doc. 51 at 5). The purpose of the meet and confer is to cure alleged deficiencies in the

Complaint. Plaintiffs say they would have added T-Mobile as a Defendant to the remaining

Counts had they been notified in advance of the alleged deficiencies. (Id. at 4 n.3). The

Court, however, finds this proposed amendment would not resolve the subject matter

jurisdiction deficiencies alleged in the Motion to Dismiss. See Bonin v. Calderon, 59 F.3d

815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a

motion for leave to amend.”). Under these circumstances, the Court will excuse

Defendants’ failure to meet and confer.

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 2 of 18

Opposition (Doc. 51), and Congressional Defendants filed a Reply (Doc. 53).2

This case arises out of the Select Committee’s investigation into the January 6, 2021,

Background3

attack on the United States Capitol.

The parties include three Plaintiffs: Dr. Kelli Ward (“Ward”), her husband Dr.

Michael Ward (“M. Ward”), both of whom are practicing physicians, and Mole Medical

Services, PC (“Mole Medical”), an Arizona Professional Corporation (Doc. 1 at ¶¶ 6–8).

Plaintiff Kelli Ward is Chair of the Arizona Republican party and was a Republican

nominee for Arizona’s presidential electors for the 2020 General Election. (Docs. 1, 1-2

at ¶¶ 7, 19). Three Defendants are named: Bennie G. Thompson, a Representative from

Mississippi and Chairman of the Select Committee (“Thompson”), the Select Committee,

and T-Mobile USA, Inc. (“T-Mobile”) (Id. at ¶¶ 9–11).

On June 30, 2021, the U.S. House of Representatives adopted House Resolution

503, which established the Select Committee and tasked the Committee with

“investigat[ing] and reporting upon the facts, circumstances, and causes relating to the

January 6, 2021, domestic terrorist attack upon the United States Capitol Complex . . . and

relating to the interference with the peaceful transfer of power.” H.R. Res. 503 § 3(1). The

Select Committee is authorized to recommend “corrective measures,” including “changes

in law, policy, procedures, rules, or regulations that could be taken.” Id. § 4(c).

On September 7, 2022, Plaintiffs filed a Notice of Supplemental Authority regarding the

status of the Republican National Committee’s (“RNC”) appeal of a D.C. District Court’s

dismissal of the RNC’s objections relating to a subpoena issued by the Select Committee

to one of the RNC’s vendors. (Doc. 54 citing Republican National Committee v. Pelosi,

2022 WL 1294509 (D.D.C. May 1, 2022)). After the parties briefed the issues on appeal,

but before oral argument, the Select Committee withdrew the subpoena at issue. (Id.) On

September 16, 2022, the D.C. Circuit Court dismissed the appeal and vacated the district

court’s judgment. Republican Nat’l Comm. v. Pelosi, et al., 2022 WL 4349778, at *1 (D.C.

Cir. Sept. 16, 2022). The D.C. Circuit Court found vacatur necessary because by

withdrawing the subpoena, the Committee precluded the appellate court from reviewing

“the important and unsettled constitutional questions that the appeal would have

presented.” Id. As a result of that recent order, the D.C. district court decision holds no

persuasive or precedential value.

Unless otherwise noted, these facts are taken from Plaintiffs’ Complaint (Doc. 1). The

Court will assume the Complaint’s factual allegations are true, as it must in evaluating a

motion to dismiss. See Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001).

-2-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 3 of 18

On or around January 25, 2022, Mole Medical received a letter from T-Mobile

informing Mole Medical that T-Mobile had received a subpoena duces tecum from the

Select Committee to investigate the January 6th attack. (Doc. 1 at ¶ 1). The subpoena

required T-Mobile to produce information related to account 4220, including incoming and

outgoing phone call records, their duration and associated phone numbers, and information

about the callers.4 (Id. at ¶ 2). The subpoena seeks information from November 1, 2020,

to January 31, 2021, and required production by February 4, 2022.5 (Id.) The subpoena

states “[t]his schedule does not call for the production of the content of any

communications or location information.”

produced, as set forth in the subpoena, is as follows:

(Doc. 1-1 at 3).

The information to be

1. Subscriber Information: All subscriber information for the Phone Number,

including:

a. Name, subscriber name, physical address, billing address, e-mail

address, and any other address and contact information;

b. All authorized users on the associated account;

c. All phone numbers associated with the account;

d. Length of service (including start date) and types of service utilized;

e. Telephone or instrument numbers (including MAC addresses),

Electronic Serial Numbers (“ESN”), Mobile Electronic Identity

Numbers (“MEIN”) Mobile Equipment Identifier (“MEID”), Mobile

Identification Numbers (“MIN”), Subscriber Identity Modules

(“SIM”), Mobile Subscriber Integrated Services Digital Network

Number (“MSISDN”), International Mobile Subscriber Identifiers

(“MSI”), or International Mobile Equipment Identities (“IMEI”)

associated with the accounts;

f. Activation date and termination date of each device associated with

the account;

g. Any and all number and/or account number changes prior to and

after the account was activated;

h. Other subscriber numbers or identities (including temporarily

Plaintiff Ward notes three other lines are associated with the 4220 account: one belonging

to her husband and the other two belonging to her children. (Doc. 1-2 at ¶ 17). In their

Motion to Dismiss, Congressional Defendants represent that “to the extent call detail

records for [Dr. Michael Ward and his two children’s] phone numbers are considered

covered by the Subpoena, the Select Committee has voluntarily withdrawn such a demand

and has notified T-Mobile accordingly.” (Doc. 46 at 11 n.8).

The parties agreed to extend the production date several times. (Docs. 26, 31, 33, 37, 39,

43, 50).

-3-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 4 of 18

assigned network addresses and registration Internet Protocol ("IP")

addresses); and

2. Connection Records and Records of Session Times and Durations: All call,

message (SMS & MMS), Internet Protocol (“IP*”), and data-connection

detail records associated with the Phone Numbers, including all phone

numbers, IP addresses, or devices that communicated with the Phone

Number via delivered and undelivered inbound, outbound, and routed calls,

messages, voicemail, and data connections.

(Id. at 3).

Plaintiffs claim production of the information sought in the subpoena would violate

their rights under the First and Fourteenth Amendments of the U.S. Constitution. (Id. at ¶

4). Plaintiffs therefore seek declaratory judgment and injunctive relief, and ask this Court

to quash the subpoena and enjoin Defendants from enforcing it or producing any

documents in compliance of its demands. (Id. at ¶ 5).

Plaintiffs’ Complaint contains four causes of action. (Id. at 10–19). Count I, against

all Defendants, seeks declaratory judgment and injunctive relief, alleging the subpoena is

an ultra vires action by the Select Committee and thus invalid; Count II, against

Congressional Defendants, alleges a violation of the First Amendment; Count III, against

Congressional Defendants, alleges a violation of state and federal statutory privilege

protections; and Count IV, against Congressional Defendants, alleges a violation of the

Rules of the House of Representatives. (Id.) Plaintiffs assert no “wrongdoing on the part

T-Mobile” and note “they are named herein only insofar as is necessary to ensure that they

will be bound by this Court’s judgment.” (Id. at ¶ 11).

Congressional Defendants move to dismiss the Complaint under Federal Rule of

Civil Procedure 12(b)(1) and (6), arguing the Court lacks subject matter jurisdiction to

consider Plaintiffs’ claims because sovereign immunity bars those claims. (Doc. 46 at 12).

Congressional Defendants further argue the Complaint fails to state a claim upon which

relief can be granted. (Id. at 13).

II.

Legal Standards

Under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a defendant may seek to

-4-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 5 of 18

dismiss a complaint for lack of jurisdiction over the subject matter. A federal court is one

of limited jurisdiction. See Gould v. Mut. Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th

Cir. 1986). It therefore cannot reach the merits of any dispute until it confirms its own

subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95

(1998). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing

that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994).

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. Cook

v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and plain

statement showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 8(a)(2).

This standard does not require “‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). There

must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While

courts do not generally require “heightened fact pleading of specifics,” a plaintiff must

allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly,

550 U.S. at 555. A complaint must “state a claim to relief that is plausible on its face.” Id.

at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. In addition, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id. at 679.

Dismissal of a complaint for failure to state a claim can be based on either the “lack

of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable

legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In

reviewing a motion to dismiss, “all factual allegations set forth in the complaint ‘are taken

as true and construed in the light most favorable to the plaintiffs.’” Lee v. City of L.A., 250

F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140

-5-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 6 of 18

(9th Cir. 1996)). But courts are not required “to accept as true a legal conclusion couched

as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.

265, 286 (1986)).

III.

Discussion

Congressional Defendants move to dismiss Plaintiffs’ Complaint under Rules

12(b)(1) and 12(b)(6), arguing the Court lacks subject matter jurisdiction to consider

Plaintiffs’ claims under the doctrine of sovereign immunity and because the Complaint

fails to state a claim upon which relief can be granted. (Doc. 46 at 12–13).

A. Subject Matter Jurisdiction

The Court must dismiss claims and parties over which it lacks subject matter

jurisdiction. See Fed. R. Civ. P. 12(b)(1). The Court must therefore address this issue first.

Sovereign Immunity

“[T]he United States may not be sued without its consent and . . . the existence of

consent is a prerequisite for [subject matter] jurisdiction.” United States v. Mitchell, 463

U.S. 206, 212 (1983). Consent must be “unequivocally expressed” for Congress to waive

its sovereign immunity. United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992).

Sovereign immunity “forecloses . . . claims against the House of Representatives and

Senate as institutions, and Representative[s] . . . and Senator[s] . . . as individuals acting

in their official capacities.” Rockefeller v. Bingaman, 234 F. App’x 852, 855 (10th Cir.

2007) (internal citations omitted).

The Supreme Court, however, has recognized two narrow exceptions to the general

bar against suits seeking relief from the United States. See Wyoming v. United States, 279

F.3d 1214, 1225 (10th Cir. 2002). “A court may regard a government officer’s conduct as

so ‘illegal’ as to permit a suit for specific relief against the officer as an individual if (1)

the conduct is not within the officer’s statutory powers or, (2) those powers, or their

exercise in the particular case, are unconstitutional.” Id. (citing Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 702 (1949)).

Here, Plaintiffs sue Defendant Thompson in his official capacity, and they sue the

-6-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 7 of 18

Select Committee as a committee of the House of Representatives. (Doc. 1 at ¶¶ 9, 10).

Plaintiffs fail to identify a waiver that is “unequivocally expressed” and thus sovereign

immunity plainly bars Plaintiffs’ claims against the Select Committee. Nordic Vill. Inc.,

503 U.S. at 33. Likewise, an official capacity suit seeking injunctive relief against a federal

employee is “treated as a suit against a government entity” and therefore Defendant

Thompson, acting in his official capacity, is protected by Congress’s sovereign immunity.

Id. (citing to Travelers Ins. Co. v. SCM Corp., 600 F. Supp. 493, 497 (D.D.C. Dec. 21,

1984) (holding that “[i]t is clear that a claim against a federal employee in his or her

‘official capacity’ is in effect a claim against the government. The sovereign immunity

doctrine cannot be evaded by changing the label on the claims or the parties.”); see also E.

V. v. Robinson, 906 F.3d 1082, 1094 (9th Cir. 2018) (holding where a suit is “in substance”

a suit against the government, a court has no jurisdiction in the absence of consent)). The

Court accordingly finds no waiver here. Unless Plaintiffs can show one of the narrow

exceptions in which sovereign immunity does not apply to government conduct, Plaintiffs’

claims are barred.

ii.

Exceptions to Sovereign Immunity

Finding no applicable waiver, Plaintiffs seek to invoke the first exception to

sovereign immunity by arguing the actions taken by the Select Committee are ultra vires

because the subpoena does not relate to a legitimate Congressional task and is in violation

of House Rules. (Doc. 2 at 13). Plaintiffs further contend the subpoena violates their

associational rights under the First Amendment. (Doc. 2 at 11–13). Plaintiffs’ arguments

are unpersuasive.

Valid Legislative Purpose

The Court’s role is limited in reviewing Congress’s investigative power. Although

Congress has no enumerated investigative power, the Supreme Court has recognized that

each house of Congress has the power “to secure needed information” to legislate. See

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (internal citation omitted).

Congressional subpoenas, issued in furtherance of Congress’s investigative power, must

-7-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 8 of 18

have a “valid legislative purpose.” Id. at 2031. This means the subpoena must be “related

to, and in furtherance of, a legitimate task of the Congress” such as pursuing a “subject on

which legislation could be had.” Id. at 2033. An investigation conducted to “expose for

the sake of exposure” is therefore “indefensible.” Id. at 2032.

Congressional committees may execute this investigative power when a relevant

institution delegates it to them. See McGrain v. Daugherty, 273 U.S. 135, 177 (1927). To

issue a valid subpoena, however, a committee must conform to the resolution that

established its investigative powers. See Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir.

1978). A committee’s conformity to its authorizing resolution or governing rules is

“political in nature” and therefore “nonjusticiable.” Metzenbaum v. Fed. Energy Reg.

Comm’n, 675 F.2d 1282, 1287 (D.C. Cir. 1982).

The Court’s review of whether an investigative act has a valid legislative purpose is

deferential. McGrain, 273 U.S. at 177–80. Indeed, the “purpose need not be clearly

articulated” and the “legitimate legislative purpose bar is a low one.” Id. The Court must

“presume that the action” has a “legitimate object” if “it is capable of being so construed.”

Id. When the Court considers the valid legislative purpose in the scope of a subpoena, “the

Court’s review is limited to ‘whether the documents sought . . . are not plainly incompetent

or irrelevant to any lawful purpose’ of the committee ‘in the discharge of [its] duties.’”

Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 20–21 (D.D.C. 1994)

(quoting McPhaul v. United States, 364 U.S. 372, 381 (1960)). Thus, for the Court to find

a subpoena invalid based on an improper purpose, the subpoena must be rooted in exposing

for exposure’s sake. Mazars, 140 S. Ct. at 2032.

Plaintiffs argue the Congressional Defendants’ subpoena must be quashed because

it is an ultra vires action that does not relate to a legitimate Congressional task. (Id. at 13).

To support this claim, Plaintiffs contend the subpoena (1) does not concern a subject on

which legislation may be had, (2) does not comport with the Committee’s enabling

resolution because it was issued in aid of a criminal investigation or for the purpose of

harassing and threatening Plaintiffs, (3) and is overboard. (Doc. 2 at 13).

-8-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 9 of 18

Notably, the D.C. Circuit Court in Trump v. Thompson rejected similar arguments

as to the legitimacy of the Select Committee. See Trump v. Thompson, 20 F.4th 10, 41

(D.C. Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1350, 212 (2022) (finding the

Select Committee’s investigation into the January 6th attack on the Capitol has a “valid

legislative purpose” and the Committee’s inquiry contained in the authorizing resolution

concerned “a subject on which legislation could be had.”) (quoting Mazars, 140 S. Ct. at

2031–32)). This Court does as well. House Resolution 503 plainly authorizes the Select

Committee to propose legislative measures based on its findings. H.R. Res. 503 § 4(a)(3).

Indeed, the Select Committee’s purpose is to “issue a final report to the House containing

such findings, conclusions, and recommendations” for such “changes in law, policy,

procedures, rules, or regulations” as the Committee “may deem necessary[.]” Id. §

4(a)(3),(c). The Court therefore finds the Select Committee’s investigation into the January

6th attack on the Capitol has a “valid legislation purpose.” Trump, 20 F.4th at 41.

To impeach the Select Committee’s otherwise valid legislative purpose Plaintiffs

must overcome a “formidable bar.”

Representatives v. U.S. Dep’t of the Treasury, 575 F. Supp. 3d 53, 65 (D.D.C. Dec. 14,

2021) (finding that “while Congress need clear only a low bar to establish a valid purpose,

[plaintiffs] face a formidable bar to impeach that purpose”). Plaintiffs argue Deputy

Attorney General Monaco stated the Select Committee’s investigation concerned whether

Plaintiffs “committed a crime by sending fake Electoral College certifications that declared

former President Donald Trump the winner of states he lost.” (Doc. 2 at 14). Plaintiffs say

it is “public knowledge that Republicans sent a competing slate of electors for Arizona”

and that “no investigation is necessary to confirm this,” thus the subpoena was issued to

harass them for exercising their First Amendment rights. (Id.)

Comm. on Ways & Means, U.S. House of

The Court finds this evidence falls short of the formidable bar Plaintiffs must

overcome to show an invalid legislative purpose. In Watkins, a defendant refused to answer

questions before a House committee about whether certain individuals were members of

the Communist Party because he doubted the relevance of those questions to the

-9-

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 10 of 18

committee’s work. Watkins v. United States, 354 U.S. 185 (1957). The Court found the

defendant had “marshalled an impressive array of evidence that” exposure of Communists

motivated the committee. Id. at 199. This evidence included an official committee

publication which stated the committee “believed itself” called “to expose people and

organizations attempting to destroy this country.” Id. Even considering the “impressive

array of evidence,” the Court found it did not invalidate the committee’s inquiry. Id. at

200. “[A] solution to our problem is not to be found in testing the motives of committee

members.” Id. “Their motives alone would not vitiate an investigation . . . if that

assembly’s legislative purpose is being served.” Id.

Plaintiffs’ evidence of an illegitimate purpose is nowhere close to the evidence in

Watkins. First, Deputy Attorney General Monaco is not a member of the Select Committee,

and it is unclear to the Court how her comments implicate the Committee’s motives.

Second, Plaintiffs appear to argue Deputy Attorney General Monaco’s statement shows the

Select Committee’s purpose is motivated by a criminal investigation. The Court is

unpersuaded. Indeed, the D.C. Circuit rejected that the Select Committee has an “improper

law enforcement purpose,” finding “[t]he mere prospect that misconduct might be exposed

does not make the Committee’s request prosecutorial” and that “[m]issteps and

misbehavior are common fodder for legislation.” Trump, 20 F.4th at 42. The Court

therefore rejects Plaintiffs’ claims that the Select Committee’s subpoena was issued to

harass them or is otherwise for an improper law enforcement purpose. See Barenblatt v.

United States, 360 U.S. 109, 132 (1959) (finding that if “Congress acts in pursuance of its

constitutional power, the Judiciary lacks authority to intervene on the basis of the motives

which spurred the exercise of that power.”).

Last, Plaintiffs argue the subpoena is overbroad because it does not set forth with

“undisputable clarity” how its request for data relates to an authorized and lawful purpose

of the Committee’s investigation. (Doc. 2 at 14–15). But the Court’s role is limited to

whether the requested records “are not plainly incompetent or irrelevant to any lawful

purpose’ of the committee ‘in the discharge of [its] duties.’” Packwood, 845 F. Supp. at

- 10 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 11 of 18

20–21 (quoting McPhaul v. United States, 364 U.S. 372, 381 (1960).

Committee’s information request relates to phone calls records from November 1, 2020, to

January 31, 2021, from an account associated with a Republican nominee to serve as

elector for former President Trump. (Doc. 1-1 at 3; Doc. 1-2 at ¶ 19). That three-month

period is plainly relevant to its investigation into the causes of the January 6th attack. The

Court therefore has little doubt concluding these records may aid the Select Committee’s

valid legislative purpose.

The Select

McGrain, 273 U.S. at 177.

House of Representatives Rule Violations

Plaintiffs also allege the Select Committee lacks authorization because it has only

nine members and the authorizing resolution states that the Speaker shall appoint thirteen

members. (Doc. 1 at ¶ 81). It is undisputed that the composition of the Select Committee

includes nine members.

The Rulemaking Clause of Article I, Section 5 of the Constitution “reserves to each

House of the Congress the authority to make its own rules,” and a court’s different

interpretation of a congressional rule is tantamount to “making the Rules—a power that the

Rulemaking Clause reserves to each House alone.” Barker v. Conroy, 921 F.3d 1118, 1130

(D.C. Cir. 2019) (emphasis in original) (internal citation omitted).

intervene only if doing so “requires no resolution of ambiguities.” See United States v.

Durenberger, 48 F.3d 1239, 1244 (D.C. Cir. 1995). A “sufficiently ambiguous House

Rule,” however, “is non-justiciable.” United States v. Rostenkowski, 59 F.3d 1291, 1306

(D.C. Cir. 1995). Further, the Court “must give great weight to the [House’s] present

construction of its own rules.” See United States v. Smith, 286 U.S. 6, 33 (1932). Relevant

here, House Resolution 503 states that “[t]he Speaker shall appoint 13 Members to the

Select Committee, 5 of whom shall be appointed after consultation with the minority

leader.” H. Res. 503 § 2(a).

The Court may

The Court rejects Plaintiffs’ argument that the subpoena was unauthorized because

it was issued by nine members of the Select Committee and will defer to the House’s

- 11 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 12 of 18

“construction of its own rules.”6 Smith, 286 U.S. at 33. The House has already empowered

the Select Committee to act under its authorizing resolution, despite its composition.

Indeed, the House adopted the Select Committee’s recommendations to find witnesses in

contempt of Congress for refusals to comply with subpoenas and thus its composition has

been implicitly ratified by the body that created it. See 167 Cong. Rec. H5748, H5768–69

(Oct. 21, 2021) (Steve Bannon); 167 Cong. Rec. H7667, H7794, H7814–15 (Dec. 14, 2021)

(Mark Meadows). Here, Plaintiffs ask this Court to interpret the resolution in a different

manner than the House’s own reading of the authorizing resolution. But the Rulemaking

Clause reserves this power to the House and the Court will not interpret the resolution in a

manner contrary to the authorizing body. Barker, 921 F.3d at 1130.

First Amendment Associational Rights

Although not expressly stated, Plaintiffs appear to argue the issuance of the

subpoena is an unconstitutional act that does not bar this suit under sovereign immunity

principles. To that end, Plaintiffs argue the subpoena violates their associational rights

under the First Amendment.

“exacting scrutiny” to the subpoena because “political associational rights are at stake.”

(Id. at 12). Plaintiffs further claim the subpoena provides the Select Committee with “the

means to chill the First Amendment associational rights not just of the [Plaintiffs] but of

the entire Republican Party in Arizona. (Id. at 13).

(Doc. 2 at 11). Plaintiffs contend the Court must apply

To escape lawful government investigation, plaintiffs must demonstrate a “prima

facie showing of arguable first amendment infringement . . . .” Brock v. Loc. 375, Plumbers

Int’l Union of Am., AFL-CIO, 860 F.2d 346, 350 (9th Cir. 1988). This requires plaintiffs

show that “enforcement of the subpoena will result in (1) harassment, membership

withdrawal, or discouragement of new members, or (2) other consequences which

objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Id.

Plaintiffs must provide “objective and articulable facts, which go beyond broad allegations

Plaintiffs’ quorum and delegation of authority allegations, contained under the same

Count in their Complaint, are also based on the Select Committee’s nine-member

composition and the Court therefore rejects these arguments for the same reasons. (Doc.

1 at ¶¶ 85–91).

- 12 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 13 of 18

or subjective fears.” Id. at n1. A “subjective fear of future reprisals is an insufficient

showing of infringement of associational rights.” Id. “The existence of a prima facie case

turns not on the type of information sought, but on whether disclosure of the information

will have a deterrent effect on the exercise of protected activities.”

Schwarzenegger, 591 F.3d 1147, 1162 (9th Cir. 2010).

Perry v.

Plaintiffs argue their production of records “risks” those people who called or texted

Plaintiff Kelli Ward to be contacted by the Committee and to “become implicated in the

largest criminal investigation in U.S. history.” (Doc. 51 at 9). Having already found that

the subpoenaed information may aid the Committee in its function, this argument fails.

Plaintiffs also assert the Committee is controlled by members of a rival political party and

thus raises concerns that the Committee will use the information it obtains “to harass or

persecute political rivals by inquiring into their dealings with the party Chair.” (Id.)

Plaintiffs say “[i]f the Select Committee prevails, it will get a list of who, when, and for

how long the Chair of the AZGOP was in contact with party members at a sensitive time .

. . [which] may ‘induce members to withdraw’ from the AZGOP ‘and dissuade others from

joining it because of fear of exposure of their beliefs shown through their associations and

of the consequences of this exposure.’” (Id.)

The Court finds these arguments highly speculative.

First, the Court “must

presume” that the Select Committee “will exercise [its] powers responsibly and with due

regard for the [Plaintiffs’] rights” in handling the information. Exxon Corp., 589 F.2d at

589. Second, apart from these broad allegations, Plaintiffs have provided no evidence to

support their contention that producing the phone numbers associated with this account

will chill the associational rights of Plaintiffs or the Arizona GOP. Absent “objective and

articulable facts” otherwise, the Court finds Plaintiffs’ arguments constitute “a subjective

fear of future reprisal” that the Ninth Circuit has held as insufficient to show an

infringement of associational rights. Brock, 860 F.2d at 350.

Last, the law requires plaintiffs show that “enforcement of the subpoena will result

in harassment . . .” Id. (emphasis added). Although Plaintiffs allege that they have

- 13 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 14 of 18

“received death threats, harassing letters, phone calls, and threatening and sexually explicit

comments,” because of the January 6th attack and Plaintiff Ward’s associational status with

the Arizona GOP, the Court notes these incidents have already occurred. Id. (Doc. 1 at ¶¶

55–56). Plaintiffs do not otherwise explain how compliance with the subpoena would

result in harassment. Plaintiffs allege that the subpoena “must be declared violative of

Plaintiffs’ First Amendment associational rights,” but beyond conclusory allegations, they

do not demonstrate how the Select Committee’s enforcement of the subpoena and

subsequent possession of the phone numbers “will have a deterrent effect on the exercise

of protected activities.” (Id. at ¶ 57).

demonstrate a cognizable First Amendment claim.

The Court therefore finds Plaintiffs failed to

Because Plaintiffs failed to show an applicable exception to the sovereign immunity

doctrine, Plaintiffs’ claims against the Congressional Defendants are barred.

B. State and Federal Statutory Privileges

Although Plaintiffs’ claims against the Congressional Defendants are barred, T-

Mobile is also named a Defendant to this lawsuit. The Court will therefore consider

Plaintiffs’ state and federal statutory claims, which necessarily relate to T-Mobile’s release

of the subpoenaed records. Plaintiffs argue the subpoena should be quashed because it

infringes on rights protected under state and federal statutory privileges, including

Arizona’s Physician-Patient Privilege and the Health Insurance Portability and

Accountability Act (“HIPAA”). (Doc. 2 at 7–10).

Arizona Physician-Patient Privilege

“Arizona has adopted physician-patient privilege statutes for both civil and criminal

proceedings.” Samaritan Health Servs. v. City of Glendale, 714 P.2d 887, 889 (Az. Ct.

App. 1986). The statute reads: “Unless otherwise provided by law, all medical records and

payment records, and the information contained in medical records and payment records,

are privileged and confidential.” See A.R.S. § 12-2292.

Plaintiffs argue the subpoena improperly seeks telephone “metadata,” and that a

study from Stanford University shows that a patient’s “name or relationship status are

- 14 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 15 of 18

immediately apparent from telephone metadata” as well as “countless other personal

details.” (Doc. 2 at 8). Plaintiffs therefore contend disclosure of their patients’ phone

numbers infringes on the physician-patient privilege under A.R.S. § 12-2292.

Congressional Defendants argue the Supremacy Clause of the U.S. Constitution,

U.S. Const., Art. VI, cl. 2, overrides Arizona’s physician-patient privilege and thus the

statute cannot limit information validly sought under a Congressional subpoena. (Doc. 46

at 23). Congressional Defendants further assert a Congressional subpoena is not part of a

“civil matter” and therefore Arizona’s physician-patient privilege statute does not apply.

(Id.)

In their Complaint, Plaintiffs allege the subpoena “constitutes a violation of Arizona

state law related to medical privilege.” (Doc. 1 at ¶ 65). But “[t]his statute codifies the

physician-patient privilege and does not create a private right of action.” Skinner v. Tel-

Drug, Inc., 2017 WL 1076376, at *4 (D. Ariz. Jan. 27, 2017). Accordingly, Plaintiffs’

statutory violation claim in Count III cannot plausibly stand, and the Court will dismiss it.

Plaintiffs’ argument that the subpoena should be quashed because it is overbroad

and sweeps into physician-patient privileged information is equally unsuccessful. The

Arizona statute applies to civil and criminal proceedings and, as Congressional Defendants

point out, a congressional subpoena involves neither. Instead, the subpoena here is issued

under Congress’s constitutional power to conduct investigations “on which legislation

could be had.” See Mazars, 140 S. Ct. at 2031. Moreover, even if the statute applied, the

Congressional Defendants are not seeking information related to the “confidential contents

of the . . . patient’s medical records.” Carondelet Health Network v. Miller, 212 P.3d 952,

956 (Ariz. Ct. App. 2009). “The whole purpose of the privilege is to preclude the

humiliation of the patient that might follow disclosure of his ailments.” Id. (internal

citation omitted). As the court in Miller clarified, “if the disclosure of the patient’s name

reveals nothing of any communication concerning the patient’s ailments, disclosure of the

patient’s name does not violate the privilege.” Miller, 212 P.3d at 956. Here, the records

sought by Congressional Defendants “reveal[] nothing of any communication concerning

- 15 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 16 of 18

the patient’s ailments.”

“exclusively on weight loss” and that “communication with certain types of doctors can

instantly reveal confidential facts about a patient’s condition.” (Doc. 52 at 4). But the

Court finds it implausible that a patient’s phone number would “inevitably expose

information about the patient’s medical history, condition, or treatment, and potentially

reveal information the patient had divulged in confidence.” See Miller, 212 P.3d at 955

(holding trial court’s order requiring hospital to disclose the name, address, and telephone

number of a hospital patient did not violate the physician-patient privilege).

Id.

Plaintiffs contend that their medical practice focuses

The Health Insurance Portability and Accountability Act

Count III of Plaintiffs’ Complaint attempts to bring another cause of action under

HIPAA, alleging “the enforcement of the Subpoena must be enjoined until and unless

limitations are put in place to protect the [protected health information (“PHI”)] of the

Plaintiffs’ patients.” (Doc. 1 at ¶ 72). Plaintiffs allege they are “covered entities” and that

“[d]isclosing the phone records and metadata from the Phone Number would provide the

PHI of an unknown but quantifiable number of individuals seeking medical treatment from

the Plaintiffs to the Committee and potentially to the public at large.” (Id. at ¶ 67). As an

initial matter, it is well established that HIPAA does not provide a private cause of action.

Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). Thus, under

the current Complaint, Plaintiffs’ independent HIPAA claim cannot plausibly stand, and

the Court will dismiss it.

Nonetheless, the real question appears to be whether the Select Committee’s request

for information that may otherwise be HIPAA protected is reason to quash the subpoena.

To that end, Plaintiffs argue the subpoena violates HIPAA because telephone numbers can

be used to identify the Wards’ patients and those numbers constitute PHI. (Doc. 2 at 9).

Congressional Defendants and T-Mobile argue T-Mobile is not a covered entity and

therefore HIPAA’s disclosure restrictions do not apply. (Doc. 53 at 13; Doc. 48 at 4).

HIPAA restricts health care entities from disclosure of PHI. Generally, however,

HIPAA only applies to covered entities. “A covered entity or business associate may not

- 16 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 17 of 18

use or disclose protected health information, except as permitted or required by [these

regulations].” 45 C.F.R. § 164.502(a). Covered entities include health plans, health plan

clearinghouses, or health care providers who transmit any health information in electronic

form in connection with a transaction covered by HIPAA. 45 C.F.R. §§ 160.102(a),

164.104(a). A business associate is a person or organization that “creates, receives,

maintains, or transmits protected health information” for “a covered entity” unless “in the

capacity of a member of the workforce of such covered entity.” Id. § 160.103.

Covered entities and business associates may disclose PHI only with the patient’s

consent or in response to a court order or discovery request. 45 CFR § 164.512(f)(1)(ii)(A).

Disclosure of PHI is permitted in response to a subpoena when the covered entity “receives

satisfactory assurance from the party seeking the information that reasonable efforts have

been made . . . to ensure that the individual who is the subject of the protected health

information . . . has been given notice of the request; or . . . reasonable efforts have been

made . . . to secure a qualified protective order.” 45 C.F.R. §§ 164.512(e)(1)(ii)(A)–(B). A

qualified protective order prohibits the parties from using or disclosing PHI for any purpose

other than the litigation at hand and requires the parties to return or destroy the protected

information at the end of proceedings. 45 C.F.R. § 164.512(e)(1)(v).

Plaintiffs argue HIPAA applies here because Plaintiffs are the “true parties from

whom the information is sought.” (Doc. 51 at 16). Plaintiffs cite no case law to support

this proposition and the Court accordingly rejects it. The Congressional Defendants plainly

issued a subpoena to T-Mobile, not Plaintiffs, and Plaintiffs do not represent that they

maintain or could produce the type of records sought in the subpoena. (Doc. 1-1 at 2). T-

Mobile is not a covered entity under HIPAA and therefore HIPAA’s PHI disclosure

requirements do not apply to it.

The Court also notes HIPAA does not preclude production of PHI where an

adequate protective order is in place. 45 C.F.R. § 164.512(e); Lind v. United States, 2014

WL 2930486, at *2 (D. Ariz. June 30, 2014) (internal citation omitted). Plaintiffs allege

the parties have not discussed the prospect of a protective order or the potential PHI the

- 17 -

Case 3:22-cv-08015-DJH Document 55 Filed 09/22/22 Page 18 of 18

subpoena could implicate. (Doc. 1 at ¶ 71). The Court therefore encourages the parties to

engage in discussions regarding entry of a protective order designed to protect any potential

PHI. Given the legitimate purpose underlying the Select Committee’s investigation,

however, the Court will not quash the subpoena on the grounds that some of the information

could potentially be protected under statutes that do not apply to T-Mobile. See F.T.C. v.

Owens-Corning Fiberglas Corp., 626 F.2d 966, 970 (D.C. Cir. 1980) (“the judiciary must

refrain from slowing or otherwise interfering with the legitimate investigatory functions of

Congress.”).

IV.

Conclusion

Plaintiffs bear the burden of establishing that jurisdiction over the Congressional

Defendants exists and have failed to do so here. Kokkonen, 511 U.S. at 377. Sovereign

immunity therefore bars Plaintiffs’ claims against the Congressional Defendants. Plaintiffs

note in their Complaint that T-Mobile was only added to ensure compliance with the

Court’s Order. (Doc. 1 at ¶ 11). Because there is no viable claim against T-Mobile, the

Court will also dismiss it.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ Motion to Quash (Doc. 2) is denied

and the Congressional Defendants’ Motion to Dismiss (Doc. 46) is granted. The Clerk of

the Court is kindly directed to terminate this action.

Dated this 22nd day of September, 2022.

Honorable Diane J. Humetewa

United States District Judge

- 18 -

EXHIBIT C

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael P Ward, et al.,

Plaintiffs,

Bennie G Thompson, et al.,

Defendants.

No. CV-22-08015-PCT-DJH

ORDER

Plaintiffs Michael and Kelli Ward and Mole Medical Service PC ("Plaintiffs") sued

to challenge a subpoena issued to Defendant T-Mobile by the U.S. House of

Representatives Select Committee ("Select Committee") to investigate the January 6th

attack on the United States Capitol. On September 22, 2022, the Court denied Plaintiffs'

Motion to Quash and granted Chairman Bennie G. Thompson and the Select Committee's

("Congressional Defendants") Motion to Dismiss. (Doc. 55). Plaintiffs now move for an

injunction pending appeal or, in the alternative, for an administrative injunction during

which Plaintiffs can petition the Ninth Circuit for an injunction pending appeal. (Doc. 57).

Congressional Defendants oppose Plaintiffs' Motion. (Doc. 63). The Court will deny both

requests.

Background

This case arises out of the Select Committee's investigation into the January 6, 2021,

attack on the United States Capitol. In its prior Order, the Court dismissed Plaintiffs'

claims against the Congressional Defendants because of their immunity from suit under

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 2 of 8

the doctrine of sovereign immunity. (Doc. 55 at 6).

On September 23, 2022, Plaintiffs filed a notice of appeal. (Doc. 56). Three days

later, on September 26, 2022, Plaintiffs moved for an injunction pending appeal or, in the

alternative, an administrative injunction "to allow Plaintiffs sufficient time to seek an

emergency injunction in the Ninth Circuit." (Doc. 57 at 2). T-Mobile takes no position on

the Motion.

(Doc. 63 at 2).

(Doc. 66).

Congressional Defendants oppose both requests for relief.

On October 4, 2022, the Court held oral arguments on the matter. (Doc. 66). During

arguments the Congressional Defendants confirmed that they are no longer seeking Dr.

Michael Ward's records or Plaintiffs' patient phone numbers. (Id.)

II.

Legal Standard

"A preliminary injunction is an extraordinary remedy never awarded as of right."

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Such a "drastic remedy ...

should not be granted unless the movant, by a clear showing, carries the burden of

persuasion." Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quotation omitted).

Where, as here, a plaintiff seeks an injunction pending appeal, this court applies the

test for preliminary injunctions. Se. Alaska Conservation Council v. U.S. Army Corps of

Eng'rs, 472 F.3d 1097, 1100 (9th Cir. 2006). To obtain a preliminary injunction, a plaintiff

must show: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm if

injunctive relief is denied, (3) that the balance of equities weighs in the plaintiff's favor,

and(4) that the public interest favors injunctive relief. Winter, 555 U.S. at20. The movant

carries the burden of proof on each element of the test. See Los Angeles Memorial

Coliseum Comm 'n v. National Football League, 634 F.2d 1197, 1203 (9th Cir. 1980). The

last two factors merge when the government is a party. Drakes Bay Oyster Co. v. Jewell,

747 F.3d 1073, 1092 (9th Cir. 2014).

The Ninth Circuit has adopted a "sliding scale approach under which a preliminary

injunction could issue where the likelihood of success is such that 'serious questions going

to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor."'

-2-

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 3 of 8

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Clear

Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). This

approach survives the four-element test set forth in Winter when applied as part of that test.

ld. at 1131-32.

III.

Discussion

The Court begins with Plaintiffs' request for a preliminary injunction and then

considers Plaintiffs' request for an administrative injunction.

1. Preliminary Injunction Pending Appeal

Because it is dispositive, the Court will first address the second element of the

preliminary injunction test: whether Plaintiffs have established a likelihood of irreparable

harm in the absence of a preliminary injunction. Caribbean Marine Servs. Co. v. Baldrige,

844 F.2d 668, 674 (9th Cir. 1988) (fmding that speculative allegations of harm cannot

constitute irreparable harm and "a plaintiff must demonstrate immediate threatened injury

as a prerequisite to preliminary injunctive relief'').

A. Irreparable Harm

Plaintiffs argue that unless this Court issues an injunction that prohibits enforcement

of the subpoena, T-Mobile will have no choice but to comply. (Doc. 57 at 9). Once the

Select Committee obtains the phone records, Plaintiffs contend, "[t]he proverbial

toothpaste will all be out of the tube, and there will be no way for any court to undo the

disclosure of political contacts and patient telephone numbers." (Id.)

Plaintiffs argue that disclosure of Ms. Ward's political contacts will chill them from

communicating with her in the future, and that "law enforcement agents are going to

contact every number on that list and query each subscriber as to what they were discussing

with Dr. Kelli Ward, the Chair of the Arizona Republican Party." (Id. at 2). Plaintiffs also

contend that disclosure of Ms. Ward's patient numbers will disclose their identities and,

because she only provides one type of treatment, will reveal the patients' sought treatment.

(Id. at 3). Plaintiffs also note the Constitution's Speech or Debate Clause immunizes the

Select Committee and thus the Court would be powerless to order the Select Committee to

- 3-

Specifically,

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 4 of 8

return the records. (!d. at 10).

For the following reasons, the Court fmds these contentions do not constitute the

showing of irreparable harm required for the extraordinary relief of a preliminary

injunction.

First, as to Plaintiffs' concerns regarding disclosure of patient numbers, the Court

has already found that neither the Arizona physician-patient privilege nor the Health

Insurance Portability and Accountability Act apply to bar disclosure of the records sought.

(Doc. 55 at 14--18). Moreover, the Select Committee clarified at the hearing that it does

not seek any of Plaintiffs' patient telephone numbers, thus assuaging any concerns

Plaintiffs have asserted regarding their disclosure. (Doc. 66). Second, as to Plaintiffs'

concern that disclosure of Ms. Wards' political contacts will chill Republican members'

interests in communicating with their Chair, the Court finds this alleged concern

speculative--and in light of disclosures made during oral argument-dubious. Indeed,

during argument, Plaintiffs' counsel pointed out that Ms. Ward had written a book1 about

how she participated in sending an alternate slate of electors to Washington and filmed

videos of this participation and posted them to YouTube. These actions belie Ms. Ward's

concern that her communications with her constituents or colleagues will be chilled by T-

Mobile's possible disclosure of a record showing Ms. Ward called or received calls from

persons during this time.

In sum, the Court fmds Plaintiff Wards' claim that she does not want to disclose the

identities of her political contacts for fear of chilling her constituents' future

communication with her falls short of stating the concrete, irreparable injury warranted for

a preliminary injunction. 2 (Doc. 66). See also Caribbean Marine Servs. Co., 844 F.2d at

1 The Court may take judicial notice of matters that are either "generally known within the

trial court's territorial jurisdiction" or "can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 20l(b). See

https://www.amazon.coin/Justified-Americas-Dr-Kelli-Wardldp/195725503X

2 The Court notes that Plaintiffs raised the associational rights of the Arizona GOP for the

frrst time during oral argument. (poe. 66). Nowhere in Plaintiffs' Complaint1 however,

did Plaintiffs allege a cfaim on behalf of the Arizona GOP. The Complaint ruleges they

"have been injurea by this retaliation against their First Amendment protected interests ..

. ." (Doc. 1 at~ 59) (emphasis added). Not only is this argument untimely, but Plaintiffs

-4-

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 5 of 8

674 ("[s]peculative injury does not constitute irreparable injury sufficient to warrant

granting a preliminary injunction."). Ms. Ward's own actions undermine her concern that

disclosure of these numbers will chill political communications. The burden is on Plaintiffs

to make a clear showing of an immediate threatened injury, and Plaintiffs have not done so

here. Lopez v, 680 F.3d at 1072.

Because irreparable harm is a prerequisite to injunctive relief, and Plaintiffs cannot

make the showing, Plaintiffs have not satisfied the second element of the Winter test.

Plaintiffs are therefore not entitled to an injunction pending appeal. Protecting Arizona's

Res. & Child. v. Fed. Highway Admin., 2016 WL 9080879, at *2 (D. Ariz. Oct. 26, 2016).

B. Sliding Scale

The Ninth Circuit's more flexible sliding scale approach does not alter the Court's

conclusion. Plaintiffs argue their appeal raises serious legal questions concerning their

associational rights under the First Amendment. (Doc. 57 at 5). They say the "exacting

scrutiny" standard, which requires that there be "a substantial relation between the

disclosure requirement and a sufficiently important governmental interest, and that the

disclosure be narrowly tailored to the interest it promotes," is an unsettled area of the law

and thus raises a serious question. (Id. at 6). But as discussed below, the Court did not

even reach application of this standard because the Court found Defendants immune from

such a claim and any alleged constitutional violation too speculative to find a waiver of

such immunity.

After consideration of the parties' arguments and in light of its previous Order

(Doc. 55), the Court fmds Plaintiffs have not presented a serious legal question regarding

the merits of Plaintiffs' First Amendment claim. Although Plaintiffs discuss at length the

application of the exacting scrutiny standard in their briefing and how this case nrirrors

Republican National Committee v. Pelosi, the Court already found Plaintiffs failed to raise

a viable First Amendment claim because of the speculative nature of their alleged harm.3

have not heretofore assessed whether they have standing to allege the associational injury.

Moreover, during arguments, Plaintiffs acknowledged the factual distinction of the

records sought in Felosi, and those sought here.

-5-

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 6 of 8

(Doc. 55 at 14). Indeed, the Court noted that Plaintiffs ''provided no evidence to support

their contention that producing the phone numbers associated with this account will chill

the associational rights of Plaintiffs or the Arizona GOP" and that '"absent objective and

articulable facts' otherwise, the Court finds Plaintiffs' arguments constitute 'a subjective

fear of future reprisal' that the Ninth Circuit has held as insufficient to show an

infringement of associational rights." (Doc. 55 at 13). See also Brock v. Loc. 375,

Plumbers Int'l Union of Am., AFL-C/0, 860 F.2d 346, 350 (9th Cir. 1988). Because

Plaintiffs failed to "demonstrate how the Select Committee's enforcement of the subpoena

and subsequent possession of the phone numbers [would] have a deterrent effect on the

exercise of protected activities," the Court found Plaintiffs "failed to demonstrate a

cognizable First Amendment claim" and thus did not even reach the issue of whether

exacting scrutiny applied here. (Id. at 14). See also Perry v. Schwarzenegger, 591 F.3d

1147, 1162 (9th Cir. 2010).

In addition, Plaintiffs have not demonstrated that the balance of hardships tips

sharply in their favor. To the contrary, "there is a strong public interest in Congress

carrying out its lawful investigations" and "[t]he public interest is heightened when, as

here, the legislature is proceeding with urgency to prevent violent attacks on the federal

government and disruptions to the peaceful transfer of power." Trump v. Thompson, 20

F.4th 10, 48 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350 (2022). Last, the Select

Committee is authorized through the end of the current Congress, which is set to conclude

on January 3, 2023. An injunction would thus make it impossible for the Select Committee

to obtain the subpoenaed records because the Ninth Circuit briefing deadline is not until

January 2023. Time Schedule Order at 3, Michael Ward, et al v. Bennie Thompson, et al,

No. 22-16473 (9th Cir. Sept. 26, 2022), ECF 1. Thus, even under the more flexible sliding

scale approach, the Court fmds that Plaintiffs have not met their burden to show the balance

ofhardships tips sharply in their favor. All. for the Wild Rockies, 632 F.3dat 1131. Having

failed to make such a showing, and given the Court's determination that Plaintiffs failed to

make a clear showing of an immediate threatened injury, Plaintiffs' motion for an

-6-

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 7 of 8

injunction pending appeal will be denied.

2. Administrative Injunction Pending Appeal

In addition to their request for a preliminary injunction, Plaintiffs seek, in the

alternative, an administrative injunction pending appeal. (Doc. 57 at 2). During oral

arguments, the Court specifically inquired about the relevant legal standards regarding an

administrative injunction pending appeal and a preliminary injunction pending appeal.

(Doc. 66). Both parties skirted the Court's direct query and instead focused only on the

preliminary injunction standard. (Id.)

The Ninth Circuit has "definitively resolved which standard applies to

administrative stay motions." Nat'l Urban League v. Ross, 977 F.3d 698, 702 (9th Cir.

2020) (citing Doe #1 v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2019). "When considering

the request for an administrative stay, our touchstone is the need to preserve the status quo."

I d. In other words, an administrative stay "is only intended to preserve the status quo until

the substantive motion for a stay pending appeal can be considered on the merits, and does

not constitute in any way a decision as to the merits of the motion for stay pending appeal."

Doe #1, 944 F.3d at 1223.

During the hearing, neither party addressed how the status quo would be affected if

the phone records were released. (Doc. 66). Based on the parties briefmg and oral

argument record, the Court fmds the status quo has shifted since the inception of this case.

The Congressional Defendants no longer seek Dr. Michael Ward's or his children's phone

records and counsel for the Select Committee clarified at the hearing it does not seek Ms.

Ward's patient phone numbers. (Doc. 55 at 3 n.4; Doc. 66). To this end, the Court finds

the Congressional Defendants have substantially narrowed the subpoena since its initial

issuance, and thus shifted the analysis of what is in fact the "status quo."

Notwithstanding the narrow scope of the current information now sought, Plaintiffs

still argue that if the records are produced by T-Mobile, their First Amendment

associational rights will be chilled, and this is a harm that cannot be remedied. (Doc. 63 at

7).

As noted, the Court fmds this alleged concern to be speculative and dubious,

-7-

Case 3:22-cv-08015-DJH Document 68 Filed 10/07/22 Page 8 of 8

particularly in light of Ms. Ward's book and her YouTube video, which presumably

publicized many of the identities of the political contacts she communicated with during

that time. (Doc. 66). At the very least, this self-publication does not evidence a true

concern for her contacts' privacy. The Court is mindful that the Congressional Defendants

have extended the phone records production date numerous times, which does raise

questions about their immediate need for these records. (Docs. 26, 31, 33, 37, 39, 43, 50).

But given the breadth of the Select Committee's investigation and the numerous parties

involved, the Court finds these extensions do not negate the overall need for the phone

records. This is particularly true because the Select Committee is only authorized until the

end of the current Congress, which concludes on January 3, 2023. (Doc. 66). For these

reasons, and because the status quo has been substantially altered by the parties' respective

conduct, the Court cannot find an administrative injunction is warranted here. Nat 'I Urban

League, 977 F.3d at 702. Accordingly, the Court will deny Plaintiffs' request for an

administrative injunction.

IV.

Conclusion

For these reasons, the Court denies Plaintiffs' Motion for an injunction pending

appeal and denies Plaintiffs' request for an administrative injunction.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' Motion for Injunction or

Administrative Injunction Pending Appeal (Doc. 57) is denied.

Dated this 7th day of October, 2022.

-8-

EXHIBIT D

DocuSign Envelope ID: 39AEADEA-92E6-4FB2-BC98-6F2D977FCB77

Case 3:22-cv-08015-DJH Document 1-2 Filed 02/01/22 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

)

In Re Subpoena to T-Mobile Issued By Select

)

Committee to Investigate the January 6th Attack on )

the U.S. Capitol.

)

Case No. to be assigned

MOTION TO QUASH

CONGRESSIONAL

SUBPOENA

Declaration of Kelli Ward in Support of Motion to Quash

1. I am of over 18 years of age and have personal knowledge of the facts set forth

herein.

2. I am a resident of Lake Havasu City, Arizona.

3. I obtained my BS in psychology from Duke University in Durham, North Carolina

in 1991.

4. I attended medical school at the West Virginia School of Osteopathic Medicine in

Lewisburg, West Virginia, where I received my Doctor of Osteopathic Medicine

(D.O.) degree in 1996.

5. Since December of 2019, I have practiced exclusively in the field of medical

weight loss.

6. My understanding is that the subpoena issued to T-Mobile seeks the production

of certain information about all individuals who called, or were called, from the

telephone numbers associated with the account 928-486-4220 (Mole Medical)

between November 1, 2020 and January 31, 2021.

7. I became aware that this information had been subpoenaed on or around

January 25, 2022

8. In 2019, I was elected Chairwoman of the Arizona Republican Party, a position I

still hold. However, I still practice medicine part-time. The position of

Chairwoman is unpaid, so treating medical weight loss patients allows me to

maintain an income stream. I also derive meaning and satisfaction from my work

outside of politics as a doctor.

9. Since the COVID-19 pandemic began, I have seen patients almost exclusively via

telemedicine.

10. For many of my patients, the mere fact that they are seeing a doctor for medical

weight loss is a sensitive issue.

11. Further, my patients sometimes bring up other sensitive topics during their

telemedicine visits. Examples include diabetes, high blood pressure, thyroid

DocuSign Envelope ID: 39AEADEA-92E6-4FB2-BC98-6F2D977FCB77

Case 3:22-cv-08015-DJH Document 1-2 Filed 02/01/22 Page 2 of 2

issues, psychological problems, anxiety, depression, insomnia, and eating

disorders.

12. I use a HIPAA-compliant videoconferencing system during my patients’

telemedicine visits. However, sometimes my patients or I will have trouble with

the system. In such cases, I call patients from a telephone line associated with

Mole Medical and we conduct the visit telephonically. When this occurs, my

typical practice is to note it in the medical records for that visit.

13. From November 1, 2020, to January 31, 2021, I worked approximately five shifts.

14. I estimate that I typically see 30-40 patients per shift.

15. To the best of my knowledge, all my patients are located in Arizona. However,

many of them have moved to Arizona from other states and have telephone

numbers with area codes associated with different states.

16. In general, I call some patients by telephone during a normal shift. Hard

confirmation of which patients I called during a given shift and their phone

numbers would require me to look through the medical records for each of my

patients that I saw on a given day which would be an extraordinarily burdensome

task.

17. Other than my line, there are three other active phone lines associated with this

account: one belonging to my husband, and two to my children.

18. Besides my patients, I frequently exchange calls and texts with my daughter, son

(and his girlfriend), mother, mother-in-law, father-in-law, father, stepfather,

friends, etc. on my Mole Medical line. I also make and receive calls of a political

nature on the line as well.

19. Because of the controversy associated with my service as Republican nominee for

elector and AZGOP Chairwoman in the aftermath of the 2020 election, I have

received numerous death threats, harassing letters, and phone calls.

I declare under penalty of perjury under the laws of The United States of America

that the foregoing is true and correct and that this declaration was executed on this

1/31/2022

Salt Lake City

Utah

_________________, at ____________________(city), ______________ (state).

Kelli Ward

Signature: _____________________ Printed Name: _____________________________

EXHIBIT E

DocuSign Envelope ID: D2A53174-5A40-470F-8E67-B89F1D6D9A99

Case 3:22-cv-08015-DJH Document 1-3 Filed 02/01/22 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

)

In Re Subpoena to T-Mobile Issued By Select

)

Committee to Investigate the January 6th Attack on )

the U.S. Capitol.

)

Case No. to be assigned

MOTION TO QUASH

CONGRESSIONAL

SUBPOENA

Declaration of Michael Ward in Support of Motion to Quash

1. I am of over 18 years of age and have personal knowledge of the facts set forth

herein.

2. I am a resident of Lake Havasu City, Arizona where my wife Kelli Ward and I own

a home.

3. I served in the United States Air Force for over 30 years, both active duty and

reserve.

4. I joined the United States Air Force after high school serving first as an Air Force

medic for approximately eight years. I then received a direct commission as a

medical officer. I served stateside during the first Gulf War. I also participated in

Operation Iraqi Freedom, deploying to Kirkuk Iraq in 2004. I retired in 2017 with

the rank of Colonel. My last assignment was as State Air Surgeon for the State of

Arizona. In that capacity I was the senior medical advisor to the Adjutant General.

5. During my time in the Air Force, I attended medical school at the Kirksville

College of Osteopathic Medicine in Kirksville, Missouri, where I received my

Doctor of Osteopathic Medicine (D.O.) degree in 1995.

6. After graduating from medical school, I attended a residency in emergency

medicine that I completed in 1999. Since that time, I have been in the active

practice of emergency medicine in the State of Arizona.

7. I work as a contractor, treating patients in various emergency departments under

Mole Medical. Most of these departments are near Lake Havasu City.

8. In certain circumstances, I will give my Mole Medical phone number to patients

that I care for in the emergency departments. I do this so that we can follow up,

via voice or text, regarding their questions, the status of their condition, and

whether they are improving.

9. I estimate that I give my number to patients several times over the course of a

normal week. During the COVID pandemic, I have given the number to patients

more frequently, in part because COVID patients have many questions about

their treatment, needed follow-up, and prescriptions.

DocuSign Envelope ID: D2A53174-5A40-470F-8E67-B89F1D6D9A99

Case 3:22-cv-08015-DJH Document 1-3 Filed 02/01/22 Page 2 of 2

10. I also use the line to consult with other physicians about patients.

11. In addition to my medical practice as an emergency physician, I am the medical

director for an air ambulance company where I am constantly on call to them for

medical advice.

12. My understanding is that the subpoena issued to T-Mobile seeks the production

of certain information about all individuals who called, or were called, from the

telephone numbers associated with the account 928-486-4220 (Mole Medical)

between November 1, 2020 and January 31, 2021.

13. During this date range I was actively practicing medicine.

14. I cannot think of any way to know for certain exactly which incoming and

outgoing calls from the date range in question were with patients.

15. Besides my patients, I frequently exchange calls and texts with my daughter, sons

(and the girlfriend of one of the sons), my parents, my in-laws, aunts and uncles,

friends, etc. on my Mole Medical line. I also make and receive calls to and from

people in the political world on the line as well.

16. Although I see all my patients in Arizona, many of my patients have telephone

numbers that do not have Arizona area codes.

17. Because of my service as Republican nominee for elector, I have received

threatening and harassing messages on social media. For example, some

individuals have sent me messages wishing death upon me or stating that my

wife had performed sexual acts with President Trump.

18. My daughter has also received threating and harassing messages because of our

family’s political activities which we have had several conversations about.

I declare under penalty of perjury under the laws of The United States of America

that the foregoing is true and correct and that this declaration was executed on this

1/31/2022

Salt Lake City

Utah

_________________, at ____________________(city), ______________ (state).

Michael Ward

Signature: _____________________ Printed Name: _____________________________

EXHIBIT F

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 1 of 8

Via UPS Overnight Service

January 24, 2022

MOLE MEDICAL SERVICES PC

LAKE HAVASU CITY, AZ

Dear Sir or Madam,

T-Mobile USA, Inc. ("T-Mobile") received a subpoena for records related to a phone number

associated with your T-Mobile account from the U.S. House Select Committee to Investigate the

January 6th Attack on the United States Capitol. A copy of the relevant portions of the

subpoena is included with this letter

T-Mobile intends to produce records associated with your account in response to the subpoena

on February 4, 2022, unless you or your representative provide the company with

documentation no later than February 2, 2022, confirming that you have filed a motion for a

protective order, motion to quash, or other legal process seeking to block compliance with the

subpoena. Please direct any motion, legal process or question to T-Mobile's Legal and

Emergency Response Team at LERCustomerNotifications@T-Mobile.com

Sincerely,

Legal and Emergency Response Team

FMobile

12920 SE 38th Street, Bellevue, WA 98006

www.t-mobile.com

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 2 of 8

SUBPOENA

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE

CONGRESs OF THE UNITED STATES OF AMERICA

T-Mobile

You are hereby commanded to be and appear before the

Select Commiltee to Investigate the January 6th Attack on the Unitod States Capitol

of the House of Representatives of the United States at the placc, date,and time specificd below.

to produce the things identificd on the attached schedule touching matters of inquiry committed to said

committee or subcommittee; and you are not to depart without leave of said committee or subcommittee.

Place of production: 1540A Longworth House OfficeBuilding, Washington, DC 20515

Date: February 2, 2022

Time: 10:00 a.m.

to testify at a deposition touching matters of inquiry committed to said committee or subcommittec;

and you are not to depart without leave of said committee or subcommittec.

Place oftestimony:

Date:

Time

to testify at a hearing touching matters of inquiry committed to said committee or subcommittee; and

you are not to depart without leave of said committee or subcommittee.

Place of testimony:

Date:

Toany authorized staff

Time

member orthe United States Marshals Service

to serve and make return.

Witness my hand and the seal of the House of Representatives of the United States, at

the city of Washington, D.c. this 19

Attest

Clerk

day of January

,2022

Chalrman or Authorized Member

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 3 of 8

T-Mobile

Page 3

SCHEDULE

In accordance with the attached definitions and instructions, you, T-Mobile, arc hercby required

to produce the documents and records ("Records") listed in Section A, below, for the time period

November 2020, to January 31, 2021, concerning the phone numbers listed in Section B,

bclow (the "Phone Numbers"). This schedule does not call for the production of the content of any

communications or location information.

Please email the records to SELECT_CLERKS@MAIL.HOUSE.GOV or, in the alternative,

send them by mail to 1540A Longworth House Office Building, Washington, DC 20515, care of

Jacob Nelson, Select Committee to Investigate the January 6th Attack on the U.S. Capitol.

Section A- Records to Be Produced for Each Phone Number

Subseriber Information: All subscribcr information for the Phone Number, including:

Name, subscriber name, physical address, biling address, e-mail address,

and any other address and contact information;

All authorized users on the associated account;

All phone numbers associated with the account;

Length of service (including start date) and types of service utilizcd;

Telephone or instrument numbers (including MAC addresses), Electronic

Serial Numbers ("ESN"), Mobile Electronic Identity Numbers ("MEIN")

Mobile Equipment Identifier ("MEID"), Mobile Identification Numbers

(MIN"), Subscriber Identity Modules ("SIM"), Mobile Subscriber

Integrated Services Digital Nctwork Number ("MSISDN'"), International

Mobile Subscriber Identificrs ("MSI), or International Mobile Equipment

Identities ("IMEI") associated with the accounts;

Activation datc and termination date of cach device associated with the

account;

Any and all number and/or account number changes prior to and after the

account was activated;

Other subscriber numbers or identities (including temporarily assigned

network addresses and registration Internet Protocol ("IP") addresses); and

Connection Records and Records

Session Times andDurations: All call, message

("IP*"),

and data-connection detail records associated

(SMS & MMS), Internet Protocol

with the Phone Numbers, including all phone numbers, IP addresses, or devices that

communicated with the Phone Number via delivered and undelivercd inbound,

outbound, and routed calls, messages, voicemail, and data connections.

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 4 of 8

T-Mobile

Page4

Secton B- Phone Numbers

4220

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 5 of 8

DOCUMENT PRODUCTION DEFINITIONS AND INSTRUCTIONS

In complying with this request, produce all responsive documents, regardless of

classification level, that are in your possession, custody, or control, whether hcld by

you or your past or present agents, employces, and representatives acting on your

behalf. Produce all documents that you have a legal right to obtain, that you have a

right to copy, or to which you have access, as well as documents that you have

placed in the temporary possession, custody, or control of any third party.

Requested documents, and all documents reasonably related to the requested

documents, should not be destroyed, altered, removed, transferred, or otherwise

made inaccessible to the Select Committee to Investigate the January 6th Attack on

the United States Capitol ("Committee").

In the cvent that any entity, organization, or individual denoted in this request is or

has been known by any name other than that herein denoted, the request shall be

read also to include that alternative identification.

The Committee's preference is to receive documents in a protected

clectronic form (i.c., password protected CD, memory stick, thumb drive, or

secure file transfer) in lieu of paper productions. With specific reference to

classified material, you will coordinate with the Committee's Security

Officer to arrange for the appropriate transfer of such information to the

Committee. This includes, but is not necessarily limited to: a) identifying

the classification levcl of the responsive document(s); and b) coordinating

for the appropriate transfer of any classified responsive document(s).

Electronic document productions should be preparcd according to the

following standards:

If the production is completed through a series of multiple partial

productions, field names and file order in all load files should match.

All electronic documents produccd to the Committee should include the

following fields of metadata specific to each document, and no

modifications should be made to the original metadata:

BEGDOC, ENDDOC, TEXT, BEGATTACH, ENDATTACH,

PAGECOUNT, CUSTODIAN, RECORDTYPE, DATE, TIME,

SENTDATE, SENTTIME, BEGINDATE, BEGINTIME, ENDDATE,

ENDTIME, AUTHOR, FROM, CC, TO, BCC, SUBJECT, TTTLE,

FILENAME, FILEEXT, FILESIZE, DATECREATED, TIMECREATED,

DATELASTMOD, TIMELASTMOD, INTMSGID, INTMSGHEADER,

NATIVELINK, INTFILPATH, EXCEPTION, BEGATTACH.

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 6 of 8

Documents produced to the Committec should includc an index describing the

contents of the production. To the cxtent more than onc CD, hard drive, memory

stick, thumb drive, zip file, box, or folder is produced, cach should contain an

index describing its contents.

Documents produced in response to this request shall be produced together with

copies of file labels, dividers, or identifying markers with which they were

associated when the request was served.

When you produce documents, you should identify the paragraph(s) or request(s)

in the Committee's letter to which the documents respond.

The fact that any other person or entity also possesses non-identical or identical

copies of the same documents shall not be a basis to withhold any information.

The pendency of or potential for litigation shall not be a basis to

withhold any information.

11.

In accordance with 5 U.S.C.§ 552(d), the Freedom of Information Act (FOIA)

and any statutory excmptions to FOIA shall not be a basis for withholding any

information.

12.

Pursuant to 5 U.S.C. § 552a(b)(9), the Privacy Act shall not be a basis for

withholding information.

13.

request cannot be made in full by the specified return date,

If compliance withbethe

made

the

that date.

compliance shall

An explanation of

extent possible by

why full compliance is not possible shall be provided along with any partial

production, as well as a dato certain as to when full production will be satisfied.

In the event that a document is withheld on any basis, provide a log containing the

following information concerning any such document: (a) the reason it is being

withheld, including, if applicable, the privilege asserted; (b) the type of document;

recipient(s); (e) the relationship of the author and addressee to each other; and ()

the basis for the withholding.

15.

If any document responsive to this request was, but no longer is, in your

possession, custody, or control, identify the document (by date, author, subject,

and recipients), and explain the circumstances under which the document ceased

to be in your possession, custody, or control. Additionally, identify where the

responsive document can now be found including name, location, and contact

information of the entity or entities now in possession of the responsive

document(s).

16.

Ifa date or other descriptive detail set forth in this request referring to a document

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 7 of 8

is inaccurate, but the actual date or other descriptive detail is known to you or is

otherwise apparcnt from the contoxt of the request, produce all documents that

would be responsive as if the date or other descriptive detail were correct.

This request is contiuing in nature and applies to any newly-discovered

information. Any record, document, compilation of data, or information not

produced because it has not been located or discovered by the return date shall be

produced immediately upon subsequent location or discovery.

18.

All documents shall be Bates-stamped sequentially and produced sequentially.

19.

Upon completion of the production, submita written certification, signed by you or

your counsel, stating that: (1) a diligent search has been completed of all

documents in your possession, custody, or control that reasonably could contain

responsive documents; and

(2) all documents located during the search that are responsive have been produced

to the Committee.

Definitions

The term "document" means any written, recorded, or graphic matter of any nature

whatsoever, regardless of classification level, how recorded, or how

stored/displayed (e.g. on a social media platform) and whether original or copy,

including, but not limited to, the following: memoranda, reports, expense reports,

books, manuals, instructions, financial roports, data, working papers, records, notes,

letters, notices, confirmations, telegrams, roccipts, appraisals, pamphlets,

magazines, newspapers, prospectuses, communications, electronic mail (email),

contracts, cables, notations of any type of convcrsation, tclephone call, meeting or

other inter-office or intra-office communication, bullctins, printed matter, computer

printouts, computer or mobile device screenshots/screen captures, teletypes,

invoices, transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts,

estimates, projections, comparisons, messages, correspondence, press releases,

circulars, financial statements, reviews, opinions, offers, studies and investigations,

questionnaires and surveys, and work sheets (and all drafts, preliminary versions,

alterations, modifications, revisions, changes, and amendments of any of the

foregoing, as well as any attachments or appcndices thereto), and graphic or oral

records or representations of any kind (including without limitation, photographs,

charts, graphs, microfiche, microfilm, videotape, recordings and motion pictures),

and clectronic, mcchanical, and clectric records or representations of any kind

(including, without limitation, tapes, cassettes, disks, and recordings) and other

written, printed, typed, or other graphic or recorded matter of any kind or nature,

however produced or reproduced, and whether preserved in writing, film, tape, disk,

videotapc, or otherwise. A document bearing any notation not a part of the original

text is to be considcred a separate document. A drafl or non-identical copy is a

separate document within the meaning of this term.

Case 3:22-cv-08015-DJH Document 1-1 Filed 02/01/22 Page 8 of 8

The term "communication" means each manner or means of disclosure or

exchange of information, regardless of means utilized, whether oral, clectronic,

by document or otherwise, and whether in a meeting, by telephone, facsimile,

mail, releases, clectronic message including email (desktop or mobile device), text

message, instant message, MMS or SMS message, message application, through a social

media or online platform, or otherwise.

The terms "and" and "or" shall be construed broadly and either conjunctively or

disjunctively to bring within the scope of this request any information that might

otherwise be construed to be outside its scope. The singular includes plural number,

and vice versa. The masculine includes the feminine and neutral gendcrs.

The term "including" shall be construed broadly to mean "including, but not limited

to."

The term "Company" means the named legal entity as well as any units, firms,

partnerships, associations, corporations, limited liability companies, trusts,

subsidiaries, affiliates, divisions, departments, branches, joint ventures,

proprietorships, syndicates, or other legal, business or government entities over

which the named legal entity exercises control or in which the named entity has any

ownership whatsoever.

The term "identify," when used in a question about individuals, means to

provide the following information: (a) the individual's complete name and title;

(b) the individual's business or personal address and phone number; and (c)

any and all known aliases.

The term "related to" or "referring or relating to," with respect to any given

subject, means anything that constitutes, contains, embodies, reflects, identifies,

states, refers to, deals with, or is pertinent to that subject in any manner

whatsocver.

The term "employec" means any past or present agent, borrowed employee,

casual employee, consultant, contractor, de facto employee, detailee,

assignee, fellow, independent contractor, intern, joint adventurer, loaned

employee, officer, part-time employee, permanent employec, provisional

employee, special government employee, subcontractor, or any other type of

service provider.

The term "individual" means all natural persons and all persons or entities

acting on their behalf.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.