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Cause of Action Institute v. Tillerson

United States District Court, District of Columbia

January 9, 2018

CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
REX W. TILLERSON, in his official capacity as United States Secretary of State, and DAVID S. FERRIERO, in his official capacity as Archivist of the United States, Defendants.

          MEMORANDUM OPINION AND ORDER

          TREVOR N. MCFADDEN, UNITED STATES DISTRICT JUDGE.

         Cause 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.

         Defendants 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.

         I. BACKGROUND

         Colin 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 a case.

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.

         The 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 of State.

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.).

         Through 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[1]- "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.[2]

         On October 26, 2016, approximately one month after Ms. Cifrino's email to the State Department, Cause of Action brought this suit.

         II. LEGAL STANDARDS

         "To 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 ...


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