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Citizens for Responsibility and Ethics in Washington v. Wheeler

United States District Court, District of Columbia

January 10, 2019

ANDREW WHEELER, Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants.



         Just under a year ago, two government-watchdog groups filed suit accusing Scott Pruitt, who was then leading the Environmental Protection Agency, of deliberately setting up a system to skirt federal-records laws. Since then, the landscape at EPA has changed. As even a casual reader of the news will know, Pruitt is no longer at the Agency's helm. Perhaps less well known, but equally significant for this matter, EPA created and distributed a revised records-management policy that responds to some of the shortcomings pointed out by this suit. These developments offer good news and bad news for Plaintiffs. The good news is that they address the very circumstances that motivated this Complaint. By promulgating a new policy, EPA did voluntarily what the Court likely would have required it to do had Plaintiffs prevailed. The bad news is that these changes also bar the watchdogs' suit from moving forward. For a case cannot proceed if the controversy underlying it - namely, Pruitt's and EPA's allegedly defective policy regarding written-record creation - no longer exists. The Court, therefore, will grant Defendants' Motion to Dismiss the case as moot.

         I. Background

         Like many cases involving federal records, this tale starts with the press. During the late summer and early fall of 2017, multiple news agencies reported that Pruitt had taken extensive steps to avoid creating records that could expose his decisions as EPA Administrator to public scrutiny. See ECF No. 1 (Complaint), ¶¶ 38-41, 46-47. These stories painted a picture of a leader obsessed with secrecy who issued an array of directives aimed at ensuring that his actions left little paper trail. Id.

         Armed with these reports, two government-watchdog groups took action. Plaintiffs Citizens for Responsibility and Ethics in Washington - which goes by the acronym CREW - and Public Employees for Environmental Responsibility - dubbed PEER - are nonprofit public-interest organizations that commonly employ Freedom of Information Act requests to further their advocacy, research, education, and litigation functions. Id., ¶¶ 5, 7, 9, 11. For CREW, these functions revolve around ensuring the integrity of public officials. Id., ¶ 5. PEER's focus is on the environment. Id., ¶ 9.

         CREW and PEER (which, for the sake of simplicity, the Court will refer to jointly as “CREW”) filed a three-count Complaint against Pruitt, EPA, and two other Defendants who - as the Court will explain in a second - no longer have a role in this play: the National Archives and Records Administration and its leader, Archivist David S. Ferriero. Count I alleged that Pruitt was engaging in a consistent practice of deliberately failing to create records in contravention of the Federal Records Act and its implementing regulations. Id., ¶¶ 54-61. Count II faulted EPA for having a deficient official records-management program. Id., ¶¶ 62-66. The third count took a different tack and extended the ambit of those responsible beyond the Agency. It alleged that the Archivist is asleep at the wheel and has neglected his duty to investigate Pruitt's violations of the FRA. Id, ¶¶ 67-71.

         Defendants responded with a Motion to Dismiss. They first argued that the allegations in Count I were judicially unreviewable. The Court disagreed. Following a lengthy exposition of the relevant caselaw, it concluded that, while a court may not entertain a suit challenging an agency's handling of isolated records, it may consider a case asserting that the agency's aggregate practice or policy - whether formal or informal - is inconsistent with the FRA's requirements. See CREW v. Pruitt, 319 F.Supp.3d 252, 258-60 (D.D.C. 2018). As to Count II, EPA's contention that its official policy complied with the FRA and its implementing regulations similarly ran aground. Those regulations impose a mandate to create records for “substantive decisions and commitments reached orally, ” 36 C.F.R. § 1222.22(e), which Plaintiffs alleged EPA's official policy conspicuously lacked. Id at 260-61. While Defendants came up short on Counts I and II in their Motion, they fared better on the third. That was because the Court found that, contrary to Plaintiffs' suggestion, the Complaint never alleged that the Archivist had made a finding of an FRA violation. Id at 262. Such a finding is a condition precedent to his obligation to act. Id With that allegation absent, no case challenging the Archivist's completion of his duties under the FRA could proceed. The Court therefore dismissed Count III, leaving Counts I and II standing.

         But before this suit could gather much steam, the Agency changed course. Most notably, Pruitt heeded the myriad calls for his resignation and left EPA in July 2018. Then, on August 22, EPA adopted a new “Interim Records Management Policy, ” which it emailed to all staff and many contractors. See ECF No. 21 (Def Motion), Attach. 1 (Second Declaration of John B. Ellis, EPA Agency Records Officer), ¶¶ 4-7. As the Agency's email to its staff reflects, this revised policy “[h]ighlights the obligation to document substantive decisions reached orally.” Ellis Decl., Exh. B (Email from Vaughn Noga to EPA Employees). The email also informed its recipients that the new policy “supersedes any prior policy to the extent such policy is inconsistent with this Interim Records Management Policy.” Id

         Not long after this communication, Defendants filed the current Motion, seeking a dismissal of the case as moot given EPA's revised policy. In the alternative, Defendants moved for summary judgment, contending that the Agency has always complied with the FRA. Because the Court agrees that developments subsequent to CREW's filing of the Complaint moot this action, it does not reach the issue of summary judgment.

         II. Legal Standard

         In evaluating Defendants' renewed Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘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)); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation, ” nor an inference unsupported by the facts set forth in the Complaint. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         To survive a motion to dismiss under Rule 12(b)(1), a plaintiff generally 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), which includes the obligation to consider issues of mootness. See Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994). 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.” Grand Lodge, 185 F.Supp.2d at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 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).

         Unlike some other jurisdictional issues, the party asserting mootness - here, the Government - bears the burden of establishing that the case is in fact moot. See Honeywell Int'l Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010). This burden remains where the defendant contends that its voluntary action deprives the court of jurisdiction. In such a case, the defendant bears the “heavy” burden of “demonstrating that there is no reasonable expectation that the wrong will be repeated.” Cierco v. Mnuchin, 857 F.3d 407, 415 (D.C. Cir. 2017) (citation omitted).

         III. ...

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