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Price v. United States Department of Justice

United States District Court, District of Columbia

June 19, 2019

JAMES PRICE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

         This case began as a Freedom of Information Act (“FOIA”) dispute, in which Plaintiff, federal inmate James Price, advanced familiar FOIA claims challenging the adequacy of the Department of Justice's (“DOJ”) search for records and the legitimacy of its withholdings. But DOJ's allegedly suspicious responses to Price's and other inmates' FOIA requests prompted Price to amend his complaint, adding claims that the Attorney General and the Archivist of the United States have been violating their statutory duties under the Federal Records Act (“FRA”) by permitting the creation and storage of records in a manner that makes retrieving them difficult if not impossible. Because Price believes this illicit record-keeping system might cause the permanent loss of records relating to his and others' criminal cases, he seeks a temporary restraining order and preliminary injunction requiring the Attorney General and Archivist to put an end to it and to recover any missing records. For the reasons set forth below, the Court will deny Price's motion.

         I. Background

         In June 2012, Mr. Price was convicted by a jury of knowing distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and knowing possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). See Minute Entry, United States v. Price, No. 12-cr-600016-KMW, ECF No. 92 (S.D. Fla. June 29, 2012). In 2013, he was sentenced to a prison term of 156 months, followed by 25 years of supervised release. See Judgment, United States v. Price, No. 12-cr-600016-KMW, ECF No. 122 (S.D. Fla. Apr. 11, 2013). Price appealed his conviction to the Eleventh Circuit, arguing among other things that the evidence was insufficient to prove the knowledge element for both convictions. United States v. Price, 582 Fed.Appx. 846, 846 (11th Cir. 2014). A three-judge panel unanimously rejected Price's arguments and affirmed his convictions. Id. at 853.

         Price, however, grew convinced that something was amiss in the government's investigation and prosecution of him and of suspected child pornographers generally. Beginning in May 2017, he filed a series of FOIA requests relating to the Internet Crimes Against Children Task Force (“ICAC-TF”). Am. Compl., ECF No. 47, ¶¶ 7-12. His first request, for example, asked for “any and all reports, documentation, and data by the [ICAC-TF] for” a particular case number. See ECF No. 13, Ex. A.[1] His second request, meanwhile, sought “[a] complete copy of the [ICAC-TF] Operations Manual, including all abstracts, annexes, and appendices” and an “index of all cases and evidence processed by [the High Technology Investigations Unit].” Id., Ex. F. There were many more where those came from. Over nearly two years, Price claims to have filed “in excess of 100 FOIA requests to agencies across the Executive Branch to probe the agencies' technological operating methods and related financial structures.” Pl's Mot. for Temporary Restraining Order (“TRO Mot.”), ECF No. 52, ¶ 2. In addition to the requests Price filed personally, he “organized a coordinated effort involving multiple parties to make recursive requests to ‘cross-check' the records produced by the Defendants, and the variety of records the Defendants could not locate or produce.” Id. ¶ 7. In total, Price “filed and directed the filing, of more than 250 requests for records, documents, information, and data to more than a dozen federal, state, and local agencies-including the Defendants” in this case. Id. ¶ 8.

         In light of what Price believed were untimely, incomplete, and inconsistent responses to his and other's FOIA requests, Price filed suit in the District Court for the Southern District of Florida on November 29, 2017. See Complaint, ECF No. 1. That court transferred the case to this district in May 2018. See Order granting Plaintiff's Motion to Transfer, ECF No. 26.

         But before the Court took any action on Price's FOIA claims, he apparently had learned enough from the DOJ's FOIA responses to detect what he insists is additional (and connected) illegal behavior. He contends that “[t]he Defendants' responses and statements demonstrated a calculated pattern of not mere deception but actual deceit, ” TRO Mot. ¶ 3, namely a “stratagem to create federal records ‘off-book' with the specific intent to thwart” federal records law “and to mislead the courts as to the true availability of the records” in the government's custody, id. ¶ 6.[2]So Price moved to amend his complaint to add claims under the Administrative Procedure Act (“APA”) and Federal Records Act (“FRA”), and add as defendants the Attorney General and Archivist. See Plaintiff's Motion for Leave to Amend Complaint, ECF No. 38. After the government failed to oppose Price's motion, the Court granted Price leave to amend and accepted for filing his amended complaint. See Minute Order of December 14, 2018; Am. Compl., ECF No. 47.

         In January 2019, Price filed a motion for a temporary restraining order and preliminary injunction, which concerns only the FRA (via APA) claims raised in the amended complaint. See TRO Mot. Those claims can be found in Counts 1, 2, and 4. Count 1 alleges that then-Attorney General Jeff Sessions (now William Barr) “violated his duty under 44 U.S.C. § 3106” by failing to “notify the Archivist concerning the unlawful removal of the records, and by failing to initiate legal action through [the Office of the Attorney General] to recover the records.” Am. Compl. ¶ 45. As a remedy for that alleged violation, Price seeks a “declaratory judgment that” the Attorney General “is in violation of his non-discretionary, statutory duties under the Federal Records Act, ” and an injunction requiring him “to recover unlawfully alienated, destroyed or removed records[.]” Id. ¶ 50. Count 2 alleges substantially the same against Archivist David Ferriero and seeks an order requiring Ferriero to initiate legal action to recover the allegedly lost records. See id. ¶¶ 52-57. Count 4 alleges that DOJ violated “the Acts, ” including the FRA, “by and through the authorization, implementation, and on-going use of a private recordkeeping system, ” id. ¶ 78, which was “a deliberate means to effect a policy and practice of the alienation, removal, and or destruction of federal records, ” id. ¶ 80. For that violation, Price requests a preliminary injunction requiring DOJ to “cease all unlawful recordkeeping[.]” Id. ¶ 83.

         In essence, Price's motion asks the Court to enjoin DOJ from using its current recordkeeping system and to require the Attorney General and Archivist to take legal action to recover records Price fears have been removed from DOJ's custody. The government has opposed Price's motion, which is now ripe for the Court's resolution.

         II. Legal Standard

         “The court considers the same factors in ruling on a motion for a temporary restraining order and a motion for a preliminary injunction.” Morgan Stanley DW Inc. v. Rothe, 150 F.Supp.2d 67, 72 (D.D.C. 2001); see also Vencor Nursing Ctrs., L.P. v. Shalala, 63 F.Supp.2d 1, 7 n. 5 (D.D.C. 1999). A temporary restraining order or preliminary injunction is warranted only when the movant demonstrates “(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.” Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (citation omitted). The party seeking injunctive relief “must make a clear showing that [the] four factors, taken together, warrant relief.” League of Women Voters of United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (internal quotation marks omitted).

         III. Analysis

         Price's fundamental contention is that DOJ has created and stored records in a manner that either makes the records impossible to retrieve or, if they can be retrieved at all, makes their recovery too time consuming and unreliable. He maintains that this violates the FRA, which imposes upon both the Attorney General and Archivist a mandatory duty to take corrective action. According to Price, because both must act but neither has, this Court should compel them to do so. The Court begins with an overview of the FRA and the ability of private litigants, like Price, to bring claims under it.

         A. Private Causes of Action for FRA Violations

         The FRA requires heads of federal agencies to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” 44 U.S.C. § 3101. It also requires each agency head to “establish safeguards against the removal or loss of records the head of such agency determines to be necessary and required by regulations of the Archivist, ” the head of the National Archives and Records Administration (“NARA”). Id. § 3105.

         “When those safeguards fail, the Act sets forth a structure whereby the Archivist and agency heads are to work together to ensure that no documents are unlawfully destroyed.” Judicial Watch, Inc. v. Tillerson, 293 F.Supp.3d 33, 37 (D.D.C. 2017), aff'd sub nom. Judicial Watch, Inc. v. Pompeo, 744 Fed.Appx. 3, 3 (D.C. Cir. 2018). First, an agency head

shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency.

44 U.S.C. § 3106(a). And second, if an agency head ignores this statutory mandate, the FRA provides that “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. § 3106(b).

         And what if both the agency head and Archivist stand idle in the face of a known FRA violation? Although the FRA does not itself empower “private litigants [to] state a direct claim for legal relief under the FRA, ” the D.C. Circuit has held that, for certain types of claims, “the APA can provide a jurisdictional hook for a suit alleging noncompliance with the FRA.” Citizens for Responsibility & Ethics in Washington v. Pruitt, 319 F.Supp.3d 252, 257 (D.D.C. 2018) (“Pruitt”) (discussing Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)). Thus, when “both the agency head and Archivist ‘fail[ ] to initiate remedial action in a timely manner, private litigants may sue under the APA to require them to do so.'” Tillerson, 293 F.Supp.3d at 37 (quoting Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Homeland Sec., 527 F.Supp.2d 101, 110 (D.D.C. 2007)).

         The FRA-via-APA private right of action is limited to certain types of challenges. See Armstrong, 924 F.2d at 291 (“[W]e find that there is APA review of [an agency's] recordkeeping guidelines and instructions, but only limited APA review of claims that records are being destroyed in violation of such guidelines.”). As Judge Boasberg explained in Pruitt, Armstrong considered three types of agency actions under the FRA: “(1) agency employees' ‘destroying records in contravention of the . . . recordkeeping guidelines and directives'; (2) the agency's failure to employ adequate recordkeeping guidelines and directives; and (3) the agency head's or Archivist's refusal to seek the initiation of an enforcement action by the Attorney General.” Pruitt, 319 F.Supp.3d at 257 (quoting Armstrong, 924 F.2d at 291, 294-95). “While the first was not reviewable, [Armstrong] held that the APA provided a private right of action for the latter two.” Id. Thus, “courts may not entertain private suits alleging that agencies have improperly destroyed or removed records, but they may consider ones challenging whether agency guidelines that permit destruction of certain records are adequate under the FRA and ones alleging that the agency head or Archivist improperly refused to seek initiation of an enforcement action by the Attorney General.” Id. at 258.

         So, what has Price alleged here? Count 1, against the Attorney General, is best read as raising the second two challenges that Armstrong and Pruitt held are subject to judicial review: Price attacks both the Attorney General's failure to “maintain an active, continuing program for the economical and efficient management” of records as required by 44 U.S.C. § 3102, Am. Compl. ¶ 44, and his failure to either “notify the Archivist concerning the unlawful removal” or “initiate legal action . . . to recover the records” as required by 44 U.S.C. § 3106, Am. Compl. ¶ 45. Count 2 likewise complains that the Archivist violated his statutory duty under 44 U.S.C. § 3106 when he failed to “initiate any legal action to recover the records[.]” Am. Compl. ¶ 55. These are FRA claims that a private individual may properly press through the APA. See Pruitt, 319 F.Supp.3d at 257 (recognizing private right of action for (1) “agency's failure to employ adequate recordkeeping guidelines and directives” and (2) “agency head's . . . refusal to seek the initiation of an enforcement action” (citing Armstrong, 924 F.2d at 294-95)).

         Count 4, on the other hand, runs afoul of Armstrong. There, Price alleges that DOJ violated the FRA “by and through the authorization, implementation, and on-going use of a private recordkeeping system, known as the Child Protection System (“CPS”) by the National ICAC-TF Program.” Am. Compl. ¶ 78. He contends that DOJ “authorized, funded, and implemented the use of an external recordkeeping system as a deliberate means to effect a policy and practice of the alienation, removal, and or destruction of federal records.” Id. ¶ 80. And he demands that DOJ stop using this recordkeeping system, id. ¶ 83, which is akin to “suing directly to enjoin agency actions in contravention of” the FRA, Armstrong, 924 F.2d at 294. Armstrong made plain that judicial review is precluded for such suits. See id.

         Price seemingly tries to avoid this conclusion by recasting what appears to be an improper removal claim, which is not judicially reviewable, as a policy or practice claim, which is. But Price points to no official, public policy at the root of this claim, instead complaining of “de facto policies and practices, ” Am. Compl. ¶ 77, that together “impair [his] lawful access to information, ” id. ¶ 81. Nor does Price specify the way in which these de facto policies contravene agency guidelines or the FRA. At bottom, Count 4 invites “judicial assessment of agency compliance in specific factual contexts”-namely, whether the agency has unlawfully lost track of records relating to child sex crimes investigations-rather than an assessment of the adequacy of the agency's recordkeeping guidelines as a general matter. Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 67 F.Supp.3d 23, 33 (D.D.C. 2014). That species of claim is unavailable to private plaintiffs under the FRA, and the APA cannot be leveraged to circumvent that limitation. Id. (“[P]rivate plaintiffs cannot rely on the APA to challenge what they are expressly prohibited from challenging under FRA, i.e., an agency's substantive decisions to destroy or retain records.”).

         Price's complaint therefore alleges two judicially reviewable FRA-via-APA claims. His motion for a temporary restraining order and preliminary injunction, however, seems to press only one of them: the 44 U.S.C. § 3106 claim that the Attorney General and Archivist must initiate action to “seize, secure, or otherwise preserve the status quo of all records removed from [their] custody[.]” TRO Mot. at 22. The other two demands in Price's motion relate to enjoining Defendants from using “[Software-as-a-service-based], Could-based, or other non-government owned or operated system” that “remove[s] [or] alienate[s] . . . records from the Defendants' custody.” See id. (demands one and two). As the Court explained in the preceding paragraph discussing Count 4, this is akin to “suing directly to enjoin agency actions in contravention of agency guidelines, ” and Armstrong made clear that such a claim is unavailable to private litigants. 924 F.2d at 294. The motion does not otherwise indicate a desire to press an adequacy-of-recordkeeping-guidelines claim under 44 U.S.C. § 3102. For the purposes of resolving this motion, then, the Court need only consider the propriety of a temporary restraining order with respect to Price's failure-to-act § 3106 claim against the Attorney General and Archivist.

         B. Whether Injunctive Relief is Warranted

         The Court can now proceed to analyze whether Price has established his entitlement to either a temporary restraining order or preliminary injunction with respect to this claim. Although these are ostensibly discrete claims-Count 1 is against the Attorney General, Count 2 the Archivist-they can be treated together since the same statutory provision governs each.

         1. Likelihood of Success on the Merits

         The Court begins with the first factor for injunctive relief-whether Price has shown a substantial likelihood of success on the merits of his underlying claim. There remains some “tension in the case law regarding the showing required on the merits” for injunctive relief. Pursuing Am.'s Greatness v. Fed. Election Comm'n, 831 F.3d 500, 505 n.1 (D.C. Cir. 2016) (requiring “substantial likelihood”); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (requiring “likely” success); Sherley v. Sebelius, 644 F.3d 388, 398 (D.C. Cir. 2011) (requiring “more likely than not”). There is also some question whether the required showing can even be fixed in a vacuum, or whether instead the “necessary showing on the merits is governed by the balance of equities as revealed through an examination of the other three factors.” Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). Under the latter approach, a more persuasive showing on the merits may be required where the equities counsel against injunctive relief, while raising only a ‚Äúserious legal ...


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