United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,
SCOTT PRUITT, Administrator, U.S. Environmental Protection Agency, et al., Defendants.
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Citizens for Responsibility and Ethics in Washington (CREW)
and Public Employees for Environmental Responsibility (PEER)
are two nonprofit organizations dedicated to informing the
public about governmental actions. In this suit for
injunctive and declaratory relief, they allege that former
head of the Environmental Protection Agency Scott Pruitt and
the Agency itself have been intentionally flouting the
Federal Records Act by failing both to create certain records
and to maintain a proper records-management policy. They also
allege that the National Archives and Record Administration
(NARA) and its Archivist have been derelict in their duty to
enforce the FRA against the Agency. Defendants - Pruitt, the
EPA, NARA, and the Archivist - now move to dismiss all
claims. Finding that all but one of Plaintiffs' counts
can move forward, the Court will largely deny the Motion.
Court first sets out the relevant statutory and regulatory
provisions at play here and then briefly describes the
background of this litigation.
Federal Records Act, 44 U.S.C. §§ 2101-20, 2901-11,
3101-07, 3301-14, “governs the creation, management and
disposal of federal records.” Armstrong v.
Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). The Act
requires agencies to create “standards and
procedures” in order to ensure “[a]ccurate and
complete documentation of the policies and transactions of
the Federal Government.” 44 U.S.C. § 2902. Agency
heads are tasked to “establish and maintain a . . .
program for the . . . management of the records of the
agency, ” id. § 3102, and must
“make and preserve records containing adequate and
proper documentation of the organization, functions,
policies, decisions, procedures, and essential transactions
of the agency.” Id. § 3101. The Archivist
has a central oversight role, “provid[ing] guidance and
assistance to Federal agencies” by
“promulgat[ing] standards, procedures, and guidelines
with respect to records management.” Id.
§ 2904. Pursuant to this authority, the Archivist has
promulgated regulations detailing what types of records
agencies must create and maintain as well as the requirements
for agency recordkeeping policies. See 36 C.F.R.
§§ 1222.22-1222.34. If the Archivist finds that an
agency has failed to comply with its duties under the FRA,
NARA must “inform [it] in writing . . . of the
violation and make recommendations for its correction; and 
unless satisfactory corrective measures are demonstrably
commenced within a reasonable time, submit a written report
of the matter to the President and the Congress.” 44
U.S.C. § 2115.
and PEER are two nonprofit “public interest
organization[s]” dedicated, respectively, to informing
“citizens . . . about the activities of government
officials” and “promot[ing] public understanding
and debate concerning key and current public policy
issues.” Compl., ¶¶ 5, 9. To that end, both
groups have “a significant interest in ensuring agency
compliance with records responsibilities under the FRA,
” id., ¶¶ 6, 10, and frequently file
Freedom of Information Act requests to obtain agency records.
Id., ¶¶ 5, 7, 11-12.
to Plaintiffs, Pruitt's arrival at the EPA ushered in a
culture of secrecy. Id., ¶ 36. He and others
“verbally instructed EPA staff not to create a written
record about major substantive matters” and, during
meetings, prohibited employees from using cell phones or
taking notes. Id., ¶¶ 38-39. Indeed,
Pruitt was so keen to avoid written records that he
“used telephones other than his own to make important
phone calls to avoid their appearing on his own call log,
” “avoid[ed] using emails that create a record of
his statements, ” and commissioned a soundproof
“privacy booth” for the cost of almost $25, 000.
Id., ¶¶ 40, 45.
secrecy, Plaintiffs allege, has impeded their ability to
obtain FOIA records, id., ¶¶ 42-44,
leading them to request help from NARA. On September 12,
2017, CREW sent a letter to the Archivist, highlighting the
EPA's actions and requesting that he investigate and make
recommendations to redress any recordkeeping violations.
Id., ¶ 49. Two weeks later, NARA responded,
stating that it had alerted an EPA official and requested a
meeting within 30 days. Id., ¶ 50. CREW
continued to correspond through the end of 2017, but NARA has
not yet provided a detailed explanation of what (if any)
investigation occurred and the result therefrom.
Id., ¶ 53.
that they had given NARA enough time to resolve this issue,
Plaintiffs filed this three-count suit on February 22, 2018.
Count I charges Pruitt and the EPA with violating the
FRA's requirement to create and preserve records, and
Count II alleges that the Agency lacks a proper
records-management policy. In Count III, Plaintiffs claim
that NARA and the Archivist have neglected their duty to
investigate and redress EPA's statutory violations.
Defendants now move to dismiss, asserting that
Plaintiffs' counts are either non-justiciable or fail to
state a claim.
evaluating Defendants' Motion to Dismiss, the Court must
“treat the complaint's factual allegations as true
. . . and must grant [P]laintiff ‘the benefit of all
inferences that can be derived from the facts
alleged.'” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)) (citation omitted); see also Jerome Stevens
Pharm., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005).
The pleading rules are “not meant to impose a great
burden upon a plaintiff, ” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 347 (2005), and it must thus be
given every favorable inference that may be drawn from the
allegations of fact. Sparrow, 216 F.3d at 1113.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails “to state a claim
upon which relief can be granted.” Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). The Court need not accept as
true, then, “a legal conclusion couched as a factual
allegation, ” nor an inference unsupported by the facts
set forth in the Complaint. Trudeau v. Fed. Trade
Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986))
(internal quotation marks omitted). For a plaintiff to
survive a 12(b)(6) motion, ...