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
“serious legal ...