United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
N. MCFADDEN, UNITED STATES DISTRICT JUDGE.
of Action Institute ("Plaintiff” or "Cause of
Action") brings this action against the Secretary of
State and the Archivist of the United States
("Defendants"), in an attempt to recover former
Secretary of State Colin Powell's work-related emails,
which he created and received on a personal email account
provided by AOL, Inc. ("AOL"). Plaintiff argues
that Defendants violated the Federal Records Act, 44 U.S.C.
§§ 2101 et seq. ("FRA") and the
Administrative Procedures Act ("APA") by failing to
initiate action through the Attorney General for the recovery
of the emails, which constitute federal records improperly
removed from the State Department. Plaintiff has a pending
Freedom of Information Act ("FOIA") request for the
emails, and the injury it alleges is the continuing inability
to access the emails due to Defendants' failure to act.
move to dismiss for lack of standing. They contend that the
relief Plaintiff seeks-initiation of action through the
Attorney General to recover the emails-is not likely to
redress Plaintiffs injury, because Defendants "have no
reason to believe that any federal records still exist in
former Secretary Powell's private email account."
Mem. in Support of Defs.' Mot. Dismiss 1 (hereinafter
"Defs.' Mot. Dismiss"). Specifically,
Defendants argue that because AOL informed Secretary
Powell's personal representative that the email account
no longer exists, any further effort will be fruitless.
However, because the FRA is premised on leveraging the
significant "law enforcement authority of the United
States [as] a key weapon in assuring record preservation and
recovery, " Judicial Watch, Inc. v. Kerry, 844
F.3d 952, 9.56 (D.C. Cir. 2016), such investigations have
proven capable of revealing even deleted emails, and
Defendants' efforts to date have been anemic, I conclude
that Plaintiff has carried its burden of showing a
substantial likelihood that the requested relief will redress
its injury. Accordingly, I deny the motion to dismiss.
Powell served as the Secretary of State from January 20, 2001
to January 26, 2005. Compl. 2. During this time period,
Secretary Powell "created and received"
work-related email on a personal email account. Id.
Under the FRA and accompanying regulations, those emails
constitute federal records, which by law should remain in the
custody of the federal government. See 44 U.S.C.
§ 3301 ("'records' .. . includes all
recorded information, regardless of form or characteristics,
made or received by a Federal agency under Federal law or in
connection with the transaction of public business"); 5
FAM 415.1 (Sept. 17, 2004) ("Correspondence or email
sent or received as a [State] Department official is not
personal."); Compl. 6-10. The complaint alleges-without
dispute-that agency efforts to obtain the emails have been
unsuccessful, citing to Congressional testimony and a State
Department Inspector General report. Compl. 2-3. When federal
records are removed in violation of the FRA, the D.C. Circuit
has held that "private litigants may bring suit [under
the APA] to require the agency head and Archivist to fulfill
their statutory duty to notify Congress and ask the Attorney
General to initiate legal action, " Armstrong v.
Bush, 924 F.2d 282, 295 (D.C. Cir. 1991), because the
FRA directs specific rather than discretionary action in such
In contrast to a statute that merely authorizes an agency to
take enforcement action as it deems necessary, the FRA
requires the agency head and Archivist to take
enforcement action. ... Once the Archivist becomes aware of
"any actual, impending, or threatened unlawful
removal, defacing, alteration, or destruction of records,
" the Archivist "shall notify the head of
[the] Federal agency" involved and "assist the head
of the agency in initiating action through the Attorney
General for the recovery of records unlawfully removed and
for other redress provided by law." 44 U.S.C. §
2905(a) (emphasis added). Similarly, once the agency head
becomes aware of"any actual, impending, or
threatened unlawful, removal, defacing, alteration, or
destruction of records, " the agency head
"shall notify the Archivist" and
"with the assistance of the Archivist shall
initiate action through the Attorney General."
Id. § 3106 (emphasis added). If, however, the
agency head does not i initiate an enforcement action
"within a reasonable period of time, " 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. at 295-96. Plaintiff has two outstanding FOIA
requests with the State Department seeking any of Secretary
Powell's work-related emails transacted on a private
account. Compl. 4. On this basis, Plaintiff seeks on order
requiring the current Secretary of State and the Archivist to
initiate enforcement action through the Attorney General.
Defendants assert that they have "no reason to
believe" that the emails still exist. Defs.' Mot.
Dismiss 1; Reply 2. As evidence, they explain that:
[F]ormer Secretary Powell's representative . . . advised
State that the private email account former Secretary Powell
used during his time in office had been closed for a number
of years,  former Secretary Powell did not retain or make
printed copies of the emails . .. . and  the General
Counsel of AOL  advised the House Committee on Oversight
and Government Reform that there are no emails in the AOL
system from former Secretary Powell's tenure as Secretary
Defs.' Mot. Dismiss 13 (citing State Dept. letters
claiming the same: Compl. Ex. 3 and Compl. Ex. 8). Defendants
rely on these representations for their own conclusion that
"there is nothing further to be done in this
matter." Reply Ex. 1 (Declaration of Laurence Brewer,
Chief Records Officer for the U.S. Government, National
Archives and Records Administration) (hereinafter
"Brewer Decl.") ("the State Department
responded to my letter, stating that the Department was
informed by Secretary Powell's representative that no
emails remained in the AOL system .... I consider this
November 6, 2016, letter sufficient to have closed out our
request regarding Secretary Powell's email."); Reply
9-10 ("State relied on similar representations from
former Secretary Rice's representative and from former
Secretary Albright that they did not use a private email
account for official business .... These representations are
not sworn statements admissible as evidence at trial, and
[Defendants] are within their discretion to use them as the
bases to determine that there is no reason to believe that
there are any federal records to be recovered.") (citing
the Brewer Decl.).
its opposition to the motion to dismiss, Plaintiff then
supplemented the record with the actual email sent by former
Secretary Powell's personal representative, Ms. Peggy
Cifrino. Opp. Ex. 4 at 2; Opp. 21. In the email, dated
September 28, 2016, Ms. Cifrino states that a certain
someone-the name is redacted, but other records indicate that
it was Julie Jacobs, the General Counsel of AOL- "has
informed us that her office call[ed] Mr. Andrew Dockham at
the House Committee on Oversight and Government Reform [OGR]
to advise him that there are no emails in the AOL system from
General Powell's tenure as Secretary of State." Opp.
Ex. 4 at 2. At least two days after this alleged conversation
with the AOL General Counsel's office occurred, on
September 30, 2016, the OGR nonetheless sent a letter to AOL
seeking the emails. Opp. Ex. 5. However, the Court has no
information about what occurred as a result.
October 26, 2016, approximately one month after Ms.
Cifrino's email to the State Department, Cause of Action
brought this suit.
be heard in federal court, every plaintiff must satisfy the
'irreducible constitutional minimum' of Article III
standing: injury-in-fact, causation, and
redressability." Shaw v. Marriott Int'l
Inc.,605 F.3d 1039, 1042 (D.C. Cir. 2010) (quoting
Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61
(1992)). The Supreme Court articulated the modern standard
for redressability in Defenders of Wildlife:
"it must be 'likely, ' as opposed to merely
'speculative, ' that the injury will be
'redressed by ...