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Judicial Watch, Inc. v. Kerry

United States District Court, District of Columbia

January 11, 2016

JUDICIAL WATCH, INC., Plaintiff,
v.
JOHN F. KERRY, in his official capacity as U.S. Secretary of State, Defendant. CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
JOHN F. KERRY, in his official capacity as U.S. Secretary of State, and DAVID S. FERRIERO, in his official capacity as U.S. Archivist, Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

It would be understatement to note that email communications involving Hillary Clinton as Secretary of State have generated controversy. In fact, dozens of suits have been filed in the federal courthouse here invoking the Freedom of Information Act to compel release of certain emails. The current consolidated cases, however, offer a variation on this theme. Instead of relying on FOIA, these actions by Judicial Watch and Cause of Action Institute invoke the Federal Records Act.

The question here is whether the heads of the State Department and the National Archives and Records Administration - Defendants in these suits - have complied with the FRA in their management of federal records that include the Clinton emails. While the government's actions and the emails themselves have become a political lightning rod, feeding an insatiable media appetite, the legal issues presented by these cases are relatively straightforward - not least because a plaintiff's right to sue under the FRA is fairly limited. Given the steps the government has taken to recover the emails, the Court concludes that Plaintiffs' claims are now moot and will be dismissed for lack of subject-matter jurisdiction.

I. Background

Judicial Watch, which describes itself as a non-profit "educational organization... [that] seeks to promote transparency, accountability, and integrity in government and fidelity to the rule of law, " routinely requests records from federal agencies under the Freedom of Information Act. See JW Compl., ¶ 3. Following various New York Times articles in early 2015 reporting that former Secretary Clinton had "used at least one non-state.gov' email account to conduct official government business, " and that she had stored those emails "on a server at her home in Chappaqua, New York, " Judicial Watch became concerned that federal records had been unlawfully removed from the State Department. Id., ¶ 5. It thus filed this suit in May 2015. The gravamen of its Complaint is that "the State Department's failure to retain, manage, and search these agency records" violates the FRA, which violation cannot be remedied "unless and until [current Secretary of State John] Kerry... initiates action through the attorney general to recover the Clinton emails." Id., ¶¶ 7, 29. Judicial Watch therefore seeks declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701, et seq, to require such action. See id., ¶¶ 20-29.

Jumping on the bandwagon, plaintiff Cause of Action Institute (CAI) brought a similar lawsuit two months later against both Kerry and the Archivist of the United States, David Ferriero, in their official capacities. See CAI Compl., ¶ 1. "Concerned that Clinton had violated the Federal Records Act by using a private email account on a private server to conduct government business, " CAI and several other government oversight groups wrote to Defendants on March 17, 2015, to convey the view that it was "of the utmost importance that all of former Secretary Clinton's emails are properly preserved and transferred back to the State Department.'" Id., ¶ 9 & Exh. 1. As a result of these allegedly missing emails, CAI's suit maintains that Defendants "should have carried out their non-discretionary statutory duty to initiate legal action to recover all federal records in Clinton [ sic ] possession and unlawfully removed from the State Department, and to notify Congress that such action is being taken, " and that their failure to do so violates the FRA. Id., ¶¶ 16-17. In addition to mirroring Judicial Watch's request for injunctive and declaratory relief, CAI also asks the Court to issue a writ of mandamus ordering Defendants to comply with the FRA "by initiating legal action against Clinton through the Attorney General." Id., ¶ 68. Both Plaintiffs invoke the APA provision permitting courts to "compel agency action unlawfully withheld or unreasonably delayed" as the basis for the relief they seek. See 5 U.S.C. § 706(1).

Defendants subsequently moved to consolidate these two actions, since "both cases arise out of former Secretary of State Clinton's use of emails stored on her personal server in the course of her government duties, and both cases seek court orders directing defendants to take action to recover these emails pursuant to the FRA." Mot. to Consol., ¶ 3. In light of the propinquity of the two suits, the Court granted the Motion. See Minute Order of August 4, 2015. Defendants have now moved to dismiss.

II. Legal Standard

In evaluating Defendants' Motion to Dismiss, the Court must "treat the complaint's factual allegations as true... and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendants' contentions under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader."); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation, " nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006).

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, "the [p]laintiff's factual allegations in the complaint... will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction...." Jerome Stevens Pharm., 402 F.3d at 1253.

III. Analysis

In moving to dismiss, Defendants rely on both Rule 12(b)(1) and 12(b)(6). As to the former, they first assert that Plaintiffs lack standing since any injury occasioned by the removal of emails had already been redressed by State's recovery efforts prior to the filing of these suits. See MTD at 13-14. Defendants alternatively contend that steps recently taken by State fully satisfy its obligations under the FRA, thus rendering the suit moot. See id. at 17. Even if jurisdiction exists here, Defendants also argue that the organizations have failed to state a claim for relief under the APA or the mandamus statute. See id. at 20-21.

Plaintiffs not only oppose Defendants' Motion, but they also move for jurisdictional discovery to aid them in establishing the Court's subject-matter jurisdiction. See CAI Motion for Jurisdictional Discovery (ECF No. 14); see also JW Motion for Jurisdictional Discovery (ECF No. 15). They hope to ascertain whether and to what extent federal records were removed by Secretary Clinton, as well as what specific actions were taken by Defendants before and after these lawsuits were filed. See CAI Disc. Mot. at 13-20. Unsurprisingly, Defendants believe such discovery is unnecessary.

The Court ultimately concludes that the case is moot. As a result, it need not address the questions of standing and whether the Complaints sufficiently make out a claim. Its analysis will begin with a discussion of the FRA, proceed to an examination ...


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