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Citizens For Responsibility and Ethics in Washington v. Trump

United States District Court, District of Columbia

March 20, 2018

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al., Plaintiffs,
v.
DONALD J. TRUMP et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER United States District Judge.

         This case raises difficult questions concerning the ability of private citizens to sue the President for violations of his duty to preserve his official records for historical account. Citing media reports that appeared soon after President Trump took office, plaintiffs Citizens for Responsibility and Ethics in Washington and the National Security Archives allege that White House staffers have conducted official business using instant messaging applications that automatically delete messages after they are read. Plaintiffs seek a declaratory judgment that the use of these apps violates the Presidential Records Act of 1978, which obligates the President to first classify and then take steps to maintain “presidential records.” They also request injunctive and mandamus relief requiring the President to comply with the Act. Finally, Plaintiffs seek a declaration that the White House has violated the Take Care Clause of the Constitution by making policy through executive order, rather than agency rulemaking, so as to avoid the public disclosure of records under other statutes like the Administrative Procedure Act and the Freedom of Information Act. The government has moved to dismiss the suit.

         The use of automatically-disappearing text messages to conduct White House business would almost certainly run afoul of the Presidential Records Act. But that merits question is not before the Court. Rather, the threshold question presented by the government's motion to dismiss is whether Plaintiffs have identified a valid cause of action that would enable their case to proceed to the merits. The Court concludes that they have not.

         The Presidential Records Act reflects a careful legislative balancing of two competing goals. See Armstrong v. Bush (“Armstrong I”), 924 F.2d 282, 290 (D.C. Cir. 1991). On the one hand, Congress wanted to ensure that presidential records are preserved so that the public would have access to them after the President leaves office. Id. On the other, Congress “sought assiduously to minimize outside interference with the day-to-day operations of the President and his closest advisors and to ensure executive branch control over presidential records during the President's term in office.” Id. In striking this balance, Congress chose not to create a private right of action to enforce the Act. And because the President is not an agency, see Franklin v. Massachusetts, 505 U.S. 788, 801 (1992), his compliance with the PRA cannot be challenged under the Administrative Procedure Act.

         To the extent judicial review of the President's decisions under the Presidential Records Act is at all available, plaintiffs must root their claims elsewhere. Here Plaintiffs invoke the Court's mandamus jurisdiction. But they have failed to state a valid mandamus claim because the actions they seek to compel-like the issuance of guidelines prohibiting the use of the challenged messaging apps-are too discretionary in nature to satisfy the stringent requirements for mandamus relief. And because Plaintiffs have failed to state a valid mandamus claim, the counts of their complaint that are premised on violations of the Presidential Records Act must be dismissed.

         Plaintiffs' contention that the President has violated the Constitution's Take Care Clause by making policy through executive order meets a similar fate. Whether claims brought directly under the Take Care Clause are even justiciable is open to debate. But regardless of whether some form of relief is available, Plaintiffs have not stated a claim to it here. They challenge no particular executive order; they concede that the President may issue executive orders generally; and they offer no authority preventing the President from choosing to address an issue through executive order rather than the administrative process, even if that choice limits the public's access to government records. As a result, the Court must dismiss the Plaintiffs' Take Care Clause claim as well.

         I. Background

         A. The Presidential Records Act and the Federal Records Act

         The creation, management, and disposal of records by the federal government is controlled by two key statutes: the Presidential Records Act and the Federal Records Act.

         The Presidential Records Act (“PRA”) specifically governs the maintenance and destruction of “Presidential records.” See 44 U.S.C. § 2201 et seq.; see also Armstrong I, 924 F.2d at 285-86. It was enacted in 1978 following controversy over the ownership of Richard Nixon's presidential records. See Citizens for Responsibility & Ethics in Washington v. Cheney (“CREW”), 593 F.Supp.2d 194, 199 (D.D.C. 2009). Congress, in passing the PRA, “sought to establish the public ownership of presidential records and ensure the preservation of presidential records for public access after the termination of a President's term in office.” Armstrong I, 924 F.2d at 290.

         “Presidential records” are defined under the PRA as “documentary materials, or any reasonably segregable portion thereof, created or received by” the President or the President's staff “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C. § 2201(2). Such records do not include materials “of a purely private or nonpublic character.” Id. § 2201(2)(B)(ii), (3). Nor do “presidential records” include the “official records of an agency, ” as defined by the Freedom of Information Act (“FOIA”). Id. § 2201(2)(B)(i).

         The PRA directs that the “President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President's . . . duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to” the statute. Id. § 2203(a). During the President's term, the President “may dispose of those Presidential records of such President that no longer have administrative, historical, informational, or evidentiary value.” Id. § 2203(c). Prior to doing so, the President must obtain the views of the Archivist of the United States concerning the records the President wishes to destroy. Id. § 2203(c)(1). The Archivist may, and in some situations shall, notify Congress of the intended destruction, and the President must wait at least 60 days after such notification to destroy the records. Id. § 2203(d), (e). But the PRA “gives neither the Archivist nor the Congress the authority to veto the President's decision to destroy the records.” Armstrong I, 924 F.2d at 286.

         The creation, management, and disposal of agency records, by contrast, is governed by the Federal Records Act (“FRA”). See 44 U.S.C. §§ 2101 et seq.; see also Armstrong I, 924 F.2d at 284-85. The FRA defines “records” as “all recorded information, regardless of form or characteristics, made or received by a Federal agency . . . and preserved . . . by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government.” 44 U.S.C. § 3301(a)(1)(A).

         The FRA directs the head of every federal agency to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” Id. § 3101. Each agency head must also “establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and must “establish safeguards against the removal or loss of records.” Id. §§ 3102, 3105. Agency records may not be destroyed except as outlined in the FRA. Id. § 3314.

         B. Factual and Procedural Background

         The following relevant background is drawn from the allegations set forth in the complaint, which the Court must accept as true at this stage of the litigation. See Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012). Shortly after President Trump's inauguration, the press reported that members of his immediate staff were using messaging applications known as Signal and Confide. Compl. ¶¶ 50, 56. Signal allows users to send text, video, and picture messages to others and includes a “disappearing messaging function” whereby the user can set a time limit by which the sent message will be deleted from both the recipient's and sender's devices. Id. ¶¶ 51-52. Confide is a similar messaging application that automatically deletes text messages when the recipient “wands” over the message's words to read them. Id. ¶¶ 56, 58. Following these reports, several members of Congress wrote letters to the White House seeking information about the use of applications like Signal and Confide. Id. ¶ 63. In response, the Administration neither confirmed nor denied that the apps had been or were being used, simply noting that White House policy was to comply with the Presidential Records Act. Mem. P. & A. Opp'n Defs.' Mot. Dismiss (“CREW Opp'n”) at 6-7.

         In light of the press reports and the Administration's refusal to squarely deny them, Citizens for Responsibility and Ethics in Washington and the National Security Archive (collectively “CREW”) filed suit against President Trump and the Executive Office of the President. CREW alleged that the use of applications like Confide and Signal prevented White House staff from adequately determining whether a record is a presidential record and that the automatic deletion of messages violated the Presidential Records Act. Compl. ¶¶ 91-95. It sought declaratory relief that the use of the applications themselves, as well as the failure to issue guidelines regulating their use, violated the Act. Id. ¶¶ 98, 102. Additionally, CREW sought injunctive and mandamus relief requiring the President, his staff, and the Executive Office to comply with their non-discretionary duties under the Act. Id. ¶ 108. Finally, CREW sought a declaratory judgment that the Defendants' alleged practice of issuing executive orders to create policy in a manner designed to remove records from the scope of the Federal Records Act and FOIA is contrary to the Take Care Clause of the Constitution. Id. ¶ 120. The government subsequently moved to dismiss the case. The Court held a hearing on the motion on January 17, 2018 and will now grant it.

         II. Legal Standard

         The government has moved for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. When analyzing a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), “[t]he court assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff's legal conclusions as correct.” Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014) (Rule 12(b)(6)); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (Rule 12(b)(1)).

         With respect to a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction. Harris v. Sebelius, 932 F.Supp.2d 150, 151 (D.D.C. 2013). The Court may look to materials outside the ...


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