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Judicial Watch, Inc. v. Tiillerson

United States District Court, District of Columbia

November 9, 2017

REX W. TIILLERSON, in his official capacity as U.S. Secretary of State, Defendant. CAUSE OF ACTION INSTITUTE, Plaintiff,
REX W. TILLERSON, in his official capacity as U.S. Secretary of State, and DAVID S. FERRIERO, in his official capacity as U.S. Archivist, Defendants.



         A full year has now passed since the 2016 presidential election, but the controversy over Hillary Clinton's emails endures. As readers well remember, Clinton used private email accounts and servers during her tenure as Secretary of State. When news first broke that those accounts were employed to “conduct official government business, ” Plaintiffs Judicial Watch and Cause of Action became concerned that the Government might not have retained records of her emails. See JW Compl., ¶ 5; CAI Compl., ¶ 9. To spur recovery, each filed a separate suit alleging violations of the Federal Records Act, “a collection of statutes governing the creation, management, and disposal of federal records.” Public Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir. 1999). Plaintiffs argued that pursuant to the statutory scheme, Defendants State Department and the National Archives and Records Administration (NARA) must enlist the Attorney General's aid in recovering Clinton's emails.

         In the parties' first consolidated foray before this Court, the Government moved to dismiss the case as moot, arguing that it had done all that the FRA requires. The Court took the bait, holding that because Defendants had already taken significant steps to recover the emails, Plaintiffs suffered no ongoing injury. The Court of Appeals reversed and, in doing so, established a higher hurdle for Defendants to clear. Namely, they must initiate action with the Attorney General unless they either recover all the missing emails or “establish their fatal loss.” Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 956 (D.C. Cir. 2016). On remand, the Administration may have changed, but the Government's stance remains the same. Relying on new evidence of their additional efforts to track down the Clinton emails, Defendants play the mootness card once more. Based on that supplemented record, the Court again agrees the suit is moot and therefore grants their Motion to Dismiss.

         I. Background

         Plaintiffs are two non-profit organizations, which describe themselves as dedicated to promoting “transparency, accountability, and integrity in government.” JW Compl., ¶ 3; see also CAI Compl., ¶ 21. After learning of Clinton's private email accounts, both organizations believed that the Secretary had unlawfully removed federal records from the State Department. See JW Compl., ¶ 5; CAI Compl., ¶ 9. Judicial Watch therefore filed suit on May 2015, and Cause of Action joined the mix two months later. See Minute Order of August 4, 2015 (granting Government's Motion to Consolidate Cases). Plaintiffs claimed principally that the State Department had failed to retain agency records in violation of the Federal Records Act, such that the current Secretary of State must “initiate action through the attorney general to recover the Clinton emails.” JW Compl., ¶¶ 7, 29; see also CAI Compl., ¶¶ 16-17, 68.

         This Court dismissed Plaintiffs' suit as moot. See Judicial Watch, Inc. v. Kerry, 156 F.Supp.3d. 69, 73 (D.D.C. 2016). To proceed, it reasoned, Plaintiffs must allege an ongoing injury under the FRA, which they could do only if the Secretary and Archivist had been “‘unable or unwilling' to recover emails that might be federal records.” Id. at 76. As it happened, both NARA and State had already recovered nearly 55, 000 pages of Clinton emails and were partnering with the Federal Bureau of Investigation to search for more. Id. at 76-77. Under this Court's interpretation of the statute, Defendants' sustained efforts sufficed to alleviate any injury. Id. at 77.

         The Court of Appeals reversed, applying a mootness test with more teeth. See Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 953 (D.C. Cir. 2016). It allowed that “actions taken by the Department and the FBI might have mooted appellants' claims by securing custody of all emails that the Attorney General could have recovered in an enforcement action.” Id. at 955 (emphasis added). Although the tag-team efforts “bore some fruit, ” the court believed that “shaking the tree harder . . . might [] bear more still.” Id. In so holding, the Court of Appeals mentioned that the FBI had recovered a server and thumb drive housing emails from one of Clinton's nongovernmental email addresses. Id. If Plaintiffs had “sought emails from [that] server account” only, the court noted, a mootness argument “might well succeed.” Id. But Clinton had used a second nongovernmental address, a Blackberry account, during her first weeks in office. Id. at 955-56. The record showed no effort by the State Department or FBI to recover those emails. Id. The Court of Appeals thus held that the controversy remained live “[a]bsent a showing that the requested enforcement action could not shake loose a few more emails.” Id. at 955. It acknowledged, however, that Defendants had taken actions subsequent to this Court's initial decision, permitting them to raise mootness once again on remand. Id. at 956-57.

         Now back for round two, Defendants accept the invitation and renew their Motion to Dismiss on mootness grounds. See MTD (ECF No. 33). To that end, they have supplemented the record previously before this Court and detailed their more recent attempts to recover the remaining emails. That effort includes piggybacking on a parallel investigation by the FBI, which sought all of Clinton's work-related emails (with a particular emphasis on the Blackberry ones) to assess whether she had mismanaged classified information. See, e.g., id., Exhs. 1-4. As of June 15, 2017, the FBI has turned over all recovered records to the State Department. See Supp. Declaration of E.W. Priestap, ¶ 12. Defendants consequently conclude that they have no “reason to believe that recoverable Clinton email records remain extant.” Gov't Reply, Exh. 1 (Second Declaration of Lawrence Brewer), ¶ 3; see also id., Exh. 2 (Second Declaration of Eric F. Stein), ¶ 3.

         II. Legal Standard

         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 Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         III. Analysis

         Plaintiffs' suits contend that Defendants must initiate action through the Attorney General to recover Secretary Clinton's emails, which they allege are “federal records” under the FRA. See CAI Compl., ¶¶ 35-37. In seeking dismissal, Defendants rejoin that the actions are now moot, as they have already recovered all extant emails and thus need not invoke the Attorney General's aid. Alternatively, Defendants ask the Court to grant summary judgment in their favor on the merits. Plaintiffs not only oppose Defendants' Motion, but they cross-move for summary judgment themselves. See ECF Nos. 37 (JW), 38 (CAI). Cause of Action also moves for jurisdictional discovery to aid it in establishing the Court's subject-matter jurisdiction, see ECF No. 38, and adds a Motion to Strike Defendants' chief declaration in support of their mootness argument. See ECF No. 54.

         The Court's analysis begins by outlining the FRA, proceeds to examine mootness, and concludes with a look at jurisdictional discovery. It need not reach the summary-judgment dispute.

         A. The Federal Records Act

         The FRA requires heads of federal agencies to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” 44 U.S.C. § 3101. Each agency head shall also “establish safeguards against the removal or loss of records the head of such agency determines to be necessary and required by regulations of the Archivist, ” the head of the National Archives and Records Administration. Id. § 3105.

         When those safeguards fail, the Act sets forth a structure whereby the Archivist and agency heads are to work together to ensure that no documents are unlawfully destroyed. Each agency head

shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency.

Id. § 3106. The Act also includes a check against recalcitrant agencies. If the agency head does not enlist the Attorney General, “the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.” Id. And if both the agency head and Archivist “fail[] to initiate remedial action in a timely manner, private litigants may sue under the APA to require them to do so.” CREW v. U.S. Dep't of Homeland Sec., 527 F.Supp.2d 101, 110 (D.D.C. 2007) (citation and quotation marks omitted).

         Notwithstanding the statute's mandatory language, the D.C. Circuit has made clear that the agency need not “initially attempt to prevent the unlawful action by seeking the initiation of legal action.” Armstrong v. Bush, 924 F.2d 282, 296 n.12 (D.C. Cir. 1991). “Instead, the FRA contemplates that the agency and Archivist may proceed first by” taking their own “intra-agency actions.” Id. In this case, the Court of Appeals affirmed that “an agency might reasonably attempt to recover its records before running to the Attorney General.” Judicial Watch, 844 F.3d at 956. The agency must initiate the referral process, however, if “those initial efforts failed to recover all the missing records (or establish their fatal loss).” Id.

         B. Mootness

         At this stage, the Government assumes that Clinton's emails are federal records and were unlawfully removed from the agency. See MTD at 5 n.3. It nevertheless contends that its subsequent recovery efforts have mooted the suit. As the Supreme Court has explained time and again, a court “may only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “To save a case from mootness the ongoing injury must be more than a remote possibility, not conjectural, [and] more than speculative.” Liu v. INS, 274 F.3d 533, 535 (D.C. Cir. 2001) (quotation marks and citations omitted). “Where the plaintiff has recovered all it has sought, no court action can provide further relief and the case is moot.” Judicial Watch, 844 F.3d at 954.

         The Court of Appeals has provided a road map for the mootness inquiry in this case. To wit, this Court must start from the premise that Plaintiffs seek to “assur[e] government recovery of emails.” Id. at 955. So long as referral to the Attorney General might recover “a few more emails, ” Plaintiffs have not “been given everything [they] asked for.” Id. (quoting Noble v. Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008)). The case is moot, however, if Defendants have already “secur[ed] custody of all emails that the Attorney General could have recovered in an enforcement action.” Id. To evaluate whether that is so, the Court first surveys exactly which emails went missing. Heeding the D.C. Circuit's instructions, it then asks whether Defendants have successfully recovered those emails or otherwise established their fatal loss.

         1. The Missing Emails

         Although “the Clinton emails” have taken on a larger-than-life role in our political discourse, precision in their description is often lacking. The Secretary's emails came from different accounts and were stored on different servers. The common thread: the accounts and servers were private. As the Court of Appeals highlighted, Clinton “used two nongovernmental email addresses” while at State. Judicial Watch, 844 F.3d at 955. Before her swearing in, she primarily maintained a Blackberry email account (, and then, presumably after AT&T's 2007 acquisition of Cingular, See First Priestap Decl., ¶ 4. By January 2009, she had decided to transition to a new private domain, Id., Exh. A (FBI Report) at 3. She created the latter account on January 13, 2009 (before she assumed office), and used it as her “primary e-mail” by mid-to-late January. Id. The Secretary apparently sent and received a few scattered emails on the Blackberry account during the subsequent weeks, but by March 18, 2009, the FBI detected no further communications from that domain. Id.

         In addition to private email accounts, Clinton also used private email servers while at State. An email server is akin to a virtual post office and moves messages from a sender to its intended recipient. In 2007, an aide to former President Bill Clinton purchased an Apple OS X Server (Apple Server) “for the sole purpose of hosting e-mail services for President Clinton's staff.” Id. at 2. The Clintons maintained that server in the basement of their Chappaqua, New York, residence. Id. at 4. The Apple Server “initially hosted the domains and, ” which were used exclusively by Bill Clinton's staff. Id. at 3 & n.f. It also hosted accounts for at least two Clinton ...

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