United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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).
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.
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.
The Federal Records Act
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.
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).
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).”
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.
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.
The Missing Emails
“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
(firstname.lastname@example.org, and then,
presumably after AT&T's 2007 acquisition of Cingular,
email@example.com). See First
Priestap Decl., ¶ 4. By January 2009, she had decided to
transition to a new private domain, clintonemail.com.
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.
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 presidentclinton.com and wjcoffice.com, ”
which were used exclusively by Bill Clinton's staff.
Id. at 3 & n.f. It also hosted clintonemail.com
accounts for at least two Clinton ...