United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,
ANDREW WHEELER, Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants.
E. BOASBERG, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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
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)).
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.
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).