UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT et al.,
Plaintiffs,
v. Civil Action No. 19-2519 (RDM) U.S. DEPARTMENT OF VETERANS AFFAIRS et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The Federal Records Act (“FRA”) prohibits agency personnel from using private email
accounts for official business without taking certain remedial measures. 44 U.S.C. § 2911.
Upon learning of a violation of the FRA, an agency head must initiate an enforcement action
through the Attorney General to recover the records. Id. § 3106(a). If the agency head fails to
do so, the Archivist of the United States (“Archivist”) must step in to initiate the enforcement
action through the Attorney General. Id. § 3106(b). The D.C. Circuit has held that, although
these duties are mandatory, an agency may first attempt to retrieve the missing records on its
own before calling on the Attorney General.
While serving as Secretary of the United States Department of Veterans Affairs (the
“VA”), David Shulkin used a private email account for official agency business, including
corresponding with “Mar-a-Lago associates” of President Trump about agency policy, in
violation of the FRA. After reading about former Secretary Shulkin’s unlawful email use in the
newspaper, the VA began informal efforts to retrieve the federal records from his private
1 accounts. Unsatisfied with the pace and results of that intra-agency process, Plaintiffs American
Oversight and Democracy Forward Foundation, nonprofits that advocate for government
transparency, filed this suit against the VA, current Secretary of Veterans Affairs Robert Wilkie,
the National Archives and Records Administration (“NARA”), and Archivist David Ferriero
(collectively, “Defendants”) seeking to compel them to initiate an enforcement proceeding
through the Attorney General. Defendants move to dismiss on the ground that their ongoing
efforts to acquire the records make Plaintiffs’ claims unripe for judicial determination.
For the reasons explained below, the Court will DENY Defendants’ motion to dismiss
without prejudice and will defer consideration of the jurisdictional question presented in the
motion until later in the litigation, once the parties have had an opportunity to develop a more
complete record.
I. BACKGROUND
A. Statutory Background
The FRA governs the “creation, management and disposal of federal records.”
Armstrong v. Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). Through the FRA, Congress sought to
ensure the “[a]ccurate and complete documentation of the policies and transactions of the
Federal Government” and the “[j]udicious preservation and disposal of records.” 44 U.S.C.
§ 2902. To those ends, the FRA requires the heads of federal agencies, including the VA, to
“make and preserve records containing adequate and proper documentation of the organization,
functions, policies, decisions, procedures, and essential transactions of the agency and designed
to furnish the information necessary to protect the legal and financial rights of the Government
and of persons directly affected by the agency’s activities.” Id. § 3101. Agency heads must
establish and implement “effective controls over the creation and over the maintenance and use
2 of records in the conduct of current business,” id. § 3102(1), and “shall 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,” id. § 3105. The Archivist, in turn, “shall provide
guidance and assistance to [f]ederal agencies” on their records policies, id. § 2904(a); shall
“promulgate standards, procedures, and guidelines with respect to records management,”
id. § 2904(c)(1); and shall “conduct inspections or surveys of the records and records
management programs and practices within and between [f]ederal agencies,” id. § 2904(c)(7).
As relevant here, agency officers and employees “may not create or send a record using a
non-official electronic messaging account” unless the officer or employee either “(1) copies an
official electronic messaging account of the officer or employee in the original creation or
transmission of the record” or “(2) forwards a complete copy of the record to an official
electronic messaging account of the officer or employee not later than 20 days after the original
creation or transmission of the record.” Id. § 2911.
To prevent the unlawful destruction or removal of records, the FRA creates a “system of
administrative enforcement.” Armstrong, 924 F.2d at 294. If an agency head becomes aware of
“any actual, impending, or threatened unlawful removal, defacing, alteration, corruption,
deletion, erasure, or other destruction of records in the custody of the agency,” the agency head
“shall notify the Archivist” and “with the assistance of the Archivist shall initiate action through
the Attorney General for the recovery” of those records. 44 U.S.C. § 3106(a). If the agency
head “does not initiate an action for such recovery or other redress within a reasonable period of
time after being notified of any such unlawful action . . . or is participating in, or believed to be
participating in any such unlawful action, the Archivist shall request the Attorney General to
initiate such an action, and shall notify the Congress when such a request has been made.”
3 Id. § 3106(b). If both the agency head and the Archivist refuse to seek the initiation of an
enforcement proceeding, then private litigants may sue under the Administrative Procedure Act
to require them to do so. Armstrong, 924 F.2d at 295.
B. Factual and Procedural Background
This case concerns former Secretary of Veterans Affairs David Shulkin’s use of a private
email account to conduct official VA business, including communications about VA policy with
President Trump’s private associates from his Mar-a-Lago Club. Dkt. 1 at 2 (Compl. ¶¶ 2–3).
Plaintiffs submitted Freedom of Information Act (“FOIA”) requests to the VA seeking
former Secretary Shulkin’s emails. On May 4, 2018, and August 23, 2018, Plaintiff American
Oversight requested “records regarding the influence of the Mar-a-Lago associates on VA
policies and operations and records reflecting communications between agency officials and
those private associates of the president.” Dkt. 1 at 5 (Compl. ¶ 11). On July 2, 2019, American
Oversight submitted an additional FOIA request seeking “all emails sent or received by former
Secretary Shulkin on any personal email account regarding agency business.” Id. On
September 3, 2018, Plaintiff Democracy Forward submitted a FOIA request to the VA seeking
“communications between VA officials, including former Secretary Shulkin, and the Mar-a-Lago
associates and other records with the potential to shed light on the influence of those associates
of the president on VA policies and operations.” Id. at 6 (Compl. ¶ 13). On July 11, 2019,
Democracy Forward submitted a further FOIA request to the VA “seeking all emails sent or
received by former Secretary Shulkin on any personal, non-governmental, or nonofficial email
account regarding official agency business.” Id.
In response to those requests, the VA released records indicating that senior agency
officials, including Shulkin, communicated about VA policies and operations with “three of
4 President Trump’s Mar-a-Lago Club associates: Marc Sherman, Bruce Moskowitz, and Isaac
‘Ike’ Perlmutter.” Id. at 10–11 (Compl. ¶ 32–33) (citing Mar-a-Lago FOIA Records, Democracy
Forward Found. (last visited Oct. 29, 2020), available at https://democracyforward.org/mar-a-
lago-foia-records/; VA Records Regarding Concerned Veterans of America, American Oversight
(Oct. 15, 2019), available at https://www.americanoversight.org/document/va-records-regarding-
concerned-veterans-of-america). Those records also revealed that former Secretary Shulkin had
corresponded with the President’s Mar-a-Lago associates about official government business
using a private email account, without either copying his official account on the messages or
forwarding the conversations to his official account, in violation of the FRA. Dkt. 1 at 11
(Compl. ¶ 34). Media reports cited in Plaintiffs’ complaint suggest that Shulkin created these
private email accounts for the specific purpose of communicating with the President’s associates
from the Mar-a-Lago Club. Id. (Compl. ¶ 35) (citing Ben Kesling, House Democrats to Probe
How Trump’s Associates Influenced the VA, Wall St. J. (Feb. 8, 2019, 9:02 AM), available at
https://www.wsj.com/articles/house-democrats-to-probe-howtrumps-associates-influenced-the-
va-11549634520).
Emails from former Secretary Shulkin’s private accounts made their way into the VA’s
initial productions to Plaintiffs only in the relatively rare situations in which Shulkin happened to
forward those emails to a subordinate’s official account. Dkt. 1 at 12 (Compl. ¶ 37). Plaintiffs
allege that the “VA’s preservation and production only of incidentally forwarded email
communications demonstrates that private email communications concerning agency business
that Secretary Shulkin did not incidentally forward to a VA subordinate’s official account have
been unlawfully removed from VA custody.” Id. at 12–13 (Compl. ¶ 39). Because Secretary
Shulkin failed to transfer all agency records located in his private email accounts to his own
5 official email account, he unlawfully removed those records from VA custody, in violation of the
FRA. Id. at 13 (¶ 40).
On April 23, 2019, Plaintiff Democracy Forward sent a letter to Secretary Wilkie and the
VA, copying Archivist Ferriero, to request that Secretary Wilkie act under the FRA to recover
the records that former Secretary Shulkin removed, including by initiating an enforcement action
through the Attorney General. Id. at 13 (Compl. ¶ 41); see also id. at 30–33 (Ex. C). To the
extent that Secretary Wilkie failed to take such action, the letter requested that the Archivist
initiate an enforcement action by the Attorney General to recover those records. Id. at 13
(Compl. ¶ 41). On May 14, 2019, Plaintiff American Oversight sent a similar letter seeking
action from Secretary Wilkie and/or the Archivist to recover the missing records. Id. at 13–14
(Compl. ¶ 42); see also id. at 35–42 (Ex. D). Neither Plaintiff received a response to its letter,
id. at 13–14 (Compl. ¶¶ 41–42), and neither the VA nor the Archivist has initiated an
enforcement action through the Attorney General to recover the records, id. at 15 (Compl. ¶¶ 45–
46). In separate FOIA litigation, moreover, Secretary Wilkie acknowledged that the agency had
not yet recovered all the federal records located in former Secretary Shulkin’s private email
account. Id. at 14–15 (Compl. ¶ 44) (citing American Oversight v. U.S. Dep’t of Veterans
Affairs, No. 18-cv-2463 (D.D.C. June 27, 2019) (Dkt. 14 at 3)).
On August 21, 2019, Plaintiffs filed this lawsuit seeking to compel Defendants to initiate
an enforcement action through the Attorney General as required by the FRA, alleging that their
failure to do so has hindered Plaintiffs’ ability to acquire the records they sought in their FOIA
requests. Dkt. 1. Several factual and procedural developments have followed the filing of
the complaint.
6 On October 28, 2019, Defendants filed a motion to dismiss, arguing that the case was not
ripe in light of the VA’s “ongoing—and to date, successful—efforts” to retrieve the missing
records on its own, without resorting to the Attorney General’s assistance. Dkt. 7 at 5.
Defendants attached to their motion a declaration from John Buck, Director of the Office of
Privacy Information and Identity Protection within the VA Office of Information Technology,
detailing the agency’s progress in recovering the records from Shulkin’s private email accounts.
Dkt. 7-1 (Buck Decl.). The declaration explains that Buck learned, as a result of press coverage,
about Shulkin’s use of his private email address for official business in February 2019. Id. at 2
(Buck Decl. ¶ 4). After an internal review, the VA sent a letter to Shulkin asking that he provide:
(1) A list of all non-official email addresses Dr. Shulkin may have used to conduct VA business;
(2) copies of all messages, including attachments, Dr. Shulkin sent or received during [his] tenure as the VA Secretary, using a non-official email account to conduct VA business; and
(3) copies of any other official records Dr. Shulkin may have in his possession and written confirmation that (a) all such records have been provided to the VA, (b) Dr. Shulkin has retained no copies of such records, and (c) Dr. Shulkin does not have awareness of any such messages not provided to the VA.
Dkt. 7 at 7 (citing Dkt. 7-1 at 2 (Buck Decl. ¶ 5)) (internal quotation marks and brackets
omitted); see also Dkt. 7-1 at 6–7 (Ex. A).
On June 21, 2019, Shulkin, through counsel, responded to the VA’s letter. Dkt. 7-2 at 2–
3 (Buck Decl. ¶ 6). He sent the VA approximately 21,985 pages of documents, id., which he
identified in an attached cover letter as “records [he] created or received during [his] tenure at the
VA and that [he] believe[d] fall under the Federal Records Act,” id. at 9 (Ex. B). Shulkin wrote
that he “took reasonable steps,” including consulting counsel, “to determine which messages on
non-official email accounts are [f]ederal records.” Id. But he included the caveat that he is “not
an attorney, let alone an expert on the Federal Records Act,” and he reserved the right to 7 supplement his response if he found additional records. Id. As of the date of the Buck
Declaration, October 24, 2019, the VA was reviewing the documents Shulkin provided and
identifying federal records contained therein. Id. at 3 (Buck Decl. ¶ 7). Pending the completion
of that review, the agency had made “no final decision” as to “whether any further actions are
necessary or appropriate to ensure that all potential [f]ederal records from Dr. Shulkin’s personal
email” had been recovered. Id. (Buck Decl. ¶ 8). On October 18, 2019, the VA sent Shulkin’s
counsel a letter requesting that he “preserve all emails in the non-official email accounts he used
to conduct VA business that were sent or received during the period he was VA Secretary.” Id.
at 3–4 (Buck Decl. ¶ 9).
On November 15, 2019, the Court held a status conference to address Defendants’
motion to dismiss. Dkt. 9. At the hearing, the Court asked two questions left unanswered by
Defendants’ motion and the Buck Declaration. First, the Court asked whether former Secretary
Shulkin had responded to the VA’s letter asking that he preserve all of his emails while the
agency conducted its review of the initial documents he had provided. Dkt. 9 at 3. Second, the
Court asked what methods or criteria Shulkin had used to separate out the federal records in his
private email accounts and how the agency would determine the completeness of the records he
had provided. Dkt. 9 at 7.
Although counsel had few answers at the hearing, Defendants addressed these questions
in a status report filed on December 13, 2019. Dkt. 10. First, Defendants explained that the VA
received a letter from Shulkin on November 13, 2019, in which he committed to preserving all
messages in his private email accounts from the period when he served as Secretary of Veterans
Affairs (and, through counsel, he later committed to preserving emails from his tenure as Under
Secretary of Veterans Affairs for Health as well). Dkt. 10 at 1–2. As for the search criteria that
8 Shulkin had used to identify federal records within his private email accounts, the status report
stated that he had employed a “guiding principle that any email sent or received during his tenure
as Under Secretary of Veterans Affairs for Health or his tenure as Secretary of Veterans Affairs
that pertained to agency business constituted a federal record.” Dkt. 10 at 2. Shulkin started by
consolidating all messages from two private email accounts sent or received during his tenure at
the VA. Id. He then used “broad search terms” to identify “the likely universe of federal records
in his personal email.” Id. Finally, he “reviewed the results”—the status report did not indicate
what this review entailed—“and marked for production all emails that pertained to VA
business.” Id. This process led to the nearly 22,000 pages that he sent to the VA. Id. at 3. The
status report further asserted that Defendants had “raised a number of follow-up questions about
Dr. Shulkin’s search methodology with his counsel” and that Shulkin’s efforts, “although
considerable, require some supplementation to identify and recover all federal records residing in
his personal email accounts.” Id. Defendants relayed that Shulkin had expressed a willingness
to cooperate in identifying any remaining federal records in his private email accounts. Id.
On January 16, 2020, Plaintiffs filed their opposition to the motion to dismiss, Dkt. 12,
and, on February 7, 2020, Defendants filed their reply, Dkt. 13, attaching another declaration
from Buck with further factual developments, Dkt. 13-1 (2d Buck Decl.). On December 23,
2019, Shulkin provided “nearly 31,000 additional pages of documents to VA from his personal
accounts, bringing his total production to nearly 53,000 pages.” Dkt. 13 at 6 (citing Dkt. 13-1
at 2 (2d Buck Decl. ¶ 5)). As of the filing of Defendants’ reply, the VA’s review of these
additional documents was ongoing, and the agency had yet to determine “what (if any) further
actions are necessary to ensure that it has possession of all federal records from Dr. Shulkin.”
Dkt. 13 at 6.
9 II. LEGAL STANDARD
Federal courts are courts of limited subject-matter jurisdiction and “possess only that
power authorized by the Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Given “the nature and limits of the judicial power of the United
States,” the Court must assess its jurisdiction “as a threshold matter” and may not decide the
merits of a case without first addressing the issue of jurisdiction. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94–95 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swain, 111 U.S.
379, 382 (1884)). The plaintiff bears the burden of establishing jurisdiction. Kokkonen, 511
U.S. at 377. It is axiomatic that “subject matter jurisdiction may not be waived” and that “no
action of the parties can confer subject-matter jurisdiction upon a federal court.” NetworkIP, LLC
v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008) (internal quotation marks and citations omitted).
A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to hear a
claim and may raise a “facial” or a “factual” challenge to the Court’s jurisdiction. See Hale v.
United States, No. 13-1390 (RDM), 2015 WL 7760161, at *3–4 (D.D.C. Dec. 2, 2015). A facial
challenge to the Court’s jurisdiction contests the legal sufficiency of the jurisdictional allegations
contained in the complaint. See Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006).
For a facial challenge, the Court must accept the allegations of the complaint as true and must
construe “the complaint in the light most favorable to the non-moving party.” Id.; see I.T.
Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003). In this sense,
the Court must resolve the motion in a manner similar to a motion to dismiss under Rule
12(b)(6). See Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93
(D.C. Cir. 2002).
10 Alternatively, a Rule 12(b)(1) motion may pose a “factual” challenge to the Court’s
jurisdiction. Erby, 424 F. Supp. 2d at 182–83. For factual challenges, the Court “‘may not deny
the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and
disputed by the defendant,’ but ‘must go beyond the pleadings and resolve any disputed issues of
fact the resolution of which is necessary to a ruling upon the motion to dismiss.’” Id. (quoting
Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). In this
context, the factual allegations of the complaint are not entitled to a presumption of validity, and
the Court is required to resolve factual disputes between the parties. Id. at 183. The Court may
consider the complaint, any undisputed facts, and “‘the [C]ourt’s resolution of disputed facts.’”
Id. (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
A factual challenge to the jurisdictional allegations of a complaint, however, is subject to
a significant limitation. As the D.C. Circuit has admonished, although a district court “may rule
on disputed jurisdictional facts at any time, if they are inextricably intertwined with the merits of
the case it should usually defer its jurisdictional decision until the merits are heard.” Herbert,
974 F.2d at 198. This proviso to the usual rule ensures that, where jurisdictional defenses and
the merits of a dispute overlap, the jurisdictional defense is not used—in the absence of special
considerations—to short-circuit the factual development and adjudicative process to which a
plaintiff is generally entitled.
III. DISCUSSION
In their motion to dismiss, Defendants concede many of the facts on which Plaintiffs’ suit
is premised. Dkt. 7. They acknowledge that former Secretary Shulkin used a private email
account for official agency business in violation of the FRA, id. at 8, and they admit that the VA
is obligated to recover those federal records, id. at 10–11. Defendants’ motion to dismiss argues
11 only that the case is not yet ripe because of the VA’s ongoing efforts to recover the records on its
own. Dkt. 7 at 10–15. The motion thus presents the question of when an agency’s failure to
initiate an enforcement action through the Attorney General for the recovery of records, as
required by the FRA, becomes ripe for judicial review. But because the facts necessary to
resolve that question are “inextricably intertwined with the merits of the case,” the Court will
defer its jurisdictional decision until the merits are heard. See Herbert, 974 F.2d at 198.
The D.C. Circuit’s FRA precedents establish two competing principles. First, although
the FRA does not create an implied cause of action for private parties to seek recovery of records
that were unlawfully removed from an agency, see Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 148–150 (1980), plaintiffs can bring suit under the Administrative
Procedure Act, (“APA”), 5 U.S.C. § 706(1), to challenge the “agency head’s or Archivist’s
refusal to seek the initiation of an enforcement action by the Attorney General,” Armstrong, 924
F.2d at 295; see also Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 954 (D.C. Cir. 2016). The
failure to bring an enforcement action is amenable to judicial review because of the FRA’s “clear
statutory language mandating that the agency head and Archivist seek redress for the unlawful
removal or destruction of records.” Armstrong, 924 F.2d at 296; see 44 U.S.C. § 3106. Thus,
“[i]n contrast to a statute that merely authorizes an agency to take enforcement action as it deems
necessary, the FRA requires the agency head and Archivist to take enforcement action.”
Armstrong, 924 F.2d at 295 (emphasis in original). And the FRA, with its use of “shall,” leaves
the agency head and Archivist “no discretion to determine which cases to pursue.” Id. (emphasis
in original).
But, at the same time, the court of appeals has noted that the FRA allows the agency to
“first attempt[] its own remedial measures (rather than immediately rushing to the Attorney
12 General).” Kerry, 844 F.3d at 954. Indeed, “the FRA contemplates that the agency head and
Archivist may proceed first by invoking the agency’s ‘safeguards against the removal or loss of
records.’” Armstrong, 924 F.2d at 296 n.12 (quoting 44 U.S.C. § 3105). Such safeguards may
include “intra-agency actions” like “disciplining the staff involved in the unlawful action,
increasing oversight by higher agency officials, or threatening legal action.” Id.
To harmonize these principles, decisions in this circuit have consistently held that if an
agency’s own remedial efforts succeed in recovering every reasonably acquirable record, then a
lawsuit seeking to compel the agency to initiate an enforcement action through the Attorney
General becomes moot. See Cause of Action Inst. v. Pompeo, 319 F. Supp. 3d 230, 236 (D.D.C.
2018); Judicial Watch, Inc. v. Tillerson, 293 F. Supp. 3d 33, 46–47 (D.D.C. 2017), aff’d sub
nom. Judicial Watch, Inc. v. Pompeo, 744 F. App’x 3 (D.C. Cir. 2018). But the bar for
establishing mootness in an FRA case is a high one. Even where the agency’s efforts have borne
“some fruit,” an agency seeking dismissal of an APA/FRA action must “explain[] why shaking
the tree harder—e.g., by following the statutory mandate to seek action by the Attorney
General—might not bear more still.” Kerry, 844 F.3d at 955. Thus, unless the agency can show
“that the requested enforcement action could not shake loose a few more emails, the case is not
moot.” Id.
Here, the VA does not, and could not, argue that the case is moot—at least not yet.
Although Shulkin has provided more than 50,000 pages of documents, the Court has no basis for
determining how many total federal records his private email accounts contained. Those 50,000
pages might constitute all of the records that the agency needs to recover or only a fraction of
them. Even at the time the VA filed its reply brief, the agency was still in the process of
13 determining “what (if any) further actions are necessary to ensure that it has possession of all
federal records from Dr. Shulkin.” Dkt. 13 at 6. In short, the case is not moot.
Rather than relying on mootness, Defendants invoke a different justiciability doctrine:
ripeness. They argue that the pending lawsuit is not ripe for decision because the “VA has taken
steps to secure the documents at issue in Plaintiffs’ complaint without litigation[] and has not
made a final decision about how to proceed pending further review of the materials received
from Dr. Shulkin.” Dkt. 7 at 11. Defendants assert that the “agency’s continuing inquiry alone
establishes Plaintiffs’ claim is not ripe.” Id. And waiting to see whether the agency will
eventually recover all of the records in Shulkin’s private email accounts could “prevent the need
for court intervention and conserve judicial resources.” Id. at 13. By invoking the ripeness
doctrine, Defendants draw the two aspects of the D.C. Circuit’s APA/FRA precedent back into
tension, posing the question: at what point does the agency’s leeway to recover the records on its
own end and its obligation to ask the Attorney General for help begin?
In response, Plaintiffs argue, among other things, that this is a question for the merits, not
a question that goes to the Court’s jurisdiction, and that Defendants’ motion, in effect, “seeks a
ruling on the merits of Plaintiffs’ claims of unreasonable delay under the guise of ripeness.” Dkt.
12 at 16 (emphasis in original). Plaintiffs premise their claims on 5 U.S.C. § 706(1), which
provides that a reviewing court shall “compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1). They argue that the ripeness doctrine “applies differently” to
claims of unreasonable delay, because requiring an agency to finalize its administrative process
before exercising judicial review over a claim whose very premise is that the administrative
process is taking too long would be “definitionally illogical.” Dkt. 12 at 18. Rather, in
Plaintiffs’ view, any dispute over the sufficiency of the agency’s “reluctant and gentle remedial
14 actions,” id. at 16, composed of “plodding engagement and ‘kindly’ requests for voluntary
compliance,” id. at 27, goes to the merits of whether the agency has unreasonably delayed
initiating an enforcement action through the Attorney General, id. at 23–24.
The dividing line between questions of jurisdiction and questions for the merits is not
always clear. But for the purposes of resolving the pending motion, the Court need not draw that
line. Defendants’ challenge to the Court’s jurisdiction is a factual one, which depends on
information outside the pleadings. See Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018).
As such, the Court must “give the plaintiff ample opportunity to secure and present evidence
relevant to the existence of jurisdiction” and must give Plaintiffs “the benefit of all reasonable
inferences.” Id. (internal quotations marks and citations omitted). And, even more crucial here,
if the “jurisdictional facts . . . are inextricably intertwined with the merits of the case,” then the
Court should “defer its jurisdictional decision until the merits are heard.” Herbert, 974 F.2d at
198. Here, the ripeness inquiry and the merits are inextricably intertwined.
Defendants’ motion to dismiss turns on what is known as “prudential” ripeness. 1 See
Garcia v. Acosta, 393 F. Supp. 3d 93, 105 (D.D.C. 2019). To determine whether a case is
1 Ripeness doctrine subsumes two inquiries—the Article III requirement that plaintiffs demonstrate an injury-in-fact as well as separate “‘prudential reasons for refusing to exercise jurisdiction.’” Devia v. Nuclear Regul. Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007) (quoting Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807–08 (2003)). Although the case law on the topic is not entirely clear, courts in this circuit have treated the “prudential” aspect of ripeness doctrine as jurisdictional. See, e.g., Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48–49 (D.C. Cir. 1999); Finca Santa Elena, Inc. v. U.S. Army Corps of Eng’rs, 873 F. Supp. 2d 363, 370–71 (D.D.C. 2012) (granting Rule 12(b)(1) motion to dismiss based on lack of prudential ripeness). For present purposes, the Court need not decide whether an absence of prudential ripeness means that a case falls outside the Court’s subject-matter jurisdiction or rather offers a basis on which a Court might decline to review a case that falls within its jurisdiction. See Nat’l Park Hospitality Ass’n, 538 U.S. at 808 (distinguishing between Article III limitations on judicial power and prudential limitations on the exercise of that power); Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, n.18 (1993) (same). 15 prudentially ripe for judicial review, courts look to “the fitness of the issues for judicial decision”
and “the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967). Under the fitness prong of the test, the Court considers whether the
issue is “purely legal, whether consideration of the issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.” Devia v. Nuclear Regul. Comm’n,
492 F.3d 421, 424 (D.C. Cir. 2007) (internal quotation marks and citations omitted).
On the merits of a § 706(1) claim, the Supreme Court has explained that suits seeking to
“compel agency action unlawfully withheld or unreasonably delayed” can proceed “only where a
plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”
Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). As Plaintiffs
note, courts have recognized the awkward fit between the ripeness doctrine, which generally
requires courts to wait until the end of an agency process to undertake their review, and the
merits of a § 706(1) claim, where the challenged action is a failure to act. See Fort Sill Apache
Tribe v. Nat’l Indian Gaming Comm’n, 103 F. Supp. 3d 113, 119 (D.D.C. 2015) (“For actions
involving delay of an administrative action, the lack of a final order by the agency, which might
otherwise engender a question about ripeness, does not preclude this court’s jurisdiction.”)
(internal quotation marks and citations omitted); see also Air Line Pilots Ass’n, Int’l v. CAB, 750
F.2d 81, 85 (D.C. Cir. 1984) (“By definition, a claim of unreasonable delay cannot await final
agency action before judicial review, since it is the very lack of agency action which gives rise to
the complaint.”).
But regardless of that tension, what matters here is that the ripeness inquiry substantially
overlaps with the merits. As explained above, the dispute in this case lies on a fault line in the
D.C. Circuit’s precedent, which holds both that an agency must request an enforcement action
16 from the Attorney General when records are removed or destroyed but also that the agency may
try to solve the problem on its own first. Compare Armstrong, 924 F.3d at 295–96, with id. at
296 n.12. The question before the Court is at what point the agency’s duty to bring in the
Attorney General under the FRA, 44 U.S.C. § 3106, kicks in. That question can be framed as
going to ripeness, but it can just as easily be framed as going to the merits of the § 706(1) claim:
As a matter of ripeness, must a Court wait until an agency says that its internal efforts to retrieve
the missing records are complete before exercising jurisdiction, no matter how long those efforts
take or no matter how unsuccessful they may be? Or, on the merits, does an ongoing agency
effort to retrieve the records, even if slow or ineffectual, prevent a court from finding that the
agency has unreasonably delayed turning to the Attorney General for help? For present
purposes, however, what matters is that the facts required to answer the ripeness inquiry are the
same facts required to answer the merits questions. And for that reason, the Court will withhold
judgment on the ripeness question until later in the litigation, once the parties have had an
opportunity to develop the record with respect to both the Court’s jurisdiction and the merits.
In their reply, Defendants invoke a pair of cases from this district to show that the
ripeness and merits inquiries do not overlap and that the ripeness doctrine applies will full force
to claims under § 706(1). Dkt. 13 at 13. Upon close inspection, however, neither precedent
supports Defendants’ position. One of the cases on which Defendants rely, Hi-Tech Pharmacal
Co. v. U.S. Food & Drug Admin., 587 F. Supp. 2d 1, 9 (D.D.C. 2008), simply does not stand for
the proposition for which Defendants cite it, see Dkt. 13 at 13. In mistakenly asserting that the
court in Hi-Tech denied a preliminary injunction motion because the plaintiff’s § 706(1) claim
was unripe, Defendants conflate two different holdings in the case. Hi-Tech rejected claims
under § 706(2) of the APA, which provides for substantive review of final agency actions, on
17 ripeness grounds. Hi-Tech, 587 F. Supp. 2d at 10. But the court rejected the plaintiff’s separate
§ 706(1) claim on the merits, holding that the plaintiff was not entitled to relief because the
delayed action in question was “not a discrete agency action that the [agency] is required to take,
pursuant to statute or regulation, by a time certain.” Id. at 9.
The decision in Mylan Pharm. Inc. v. U.S. Food & Drug Admin., 789 F. Supp. 2d 1, 13
(D.D.C. 2011), in contrast, does include some language favorable to Defendants’ arguments—
but that language is premised on the same misreading of Hi-Tech. Mylan observed that “final
agency action—or its functional equivalent—is a prerequisite to judicial review, even for claims
brought under § 706(1) of the APA for unreasonable delay.” Id. The Court disagrees with that
assertion, but only to the extent it is directed at § 706(1); the Court would agree if the statement
were, as in Hi-Tech, directed at a claim brought under § 706(2) that substantively challenged “a
failure to act” as though it were final agency action. Hi-Tech, 587 F. Supp. 2d at 8–10. The very
next sentence of the Mylan decision, in any event, returns to the test for evaluating a § 706(1)
claim on the merits: “[A] claim under Section 706(1) can proceed only where a plaintiff asserts
that an agency failed to take a discrete agency action that it is required to take.” Mylan,
789 F. Supp. 2d at 13 (internal quotation marks and citations omitted). Here, Plaintiffs sue under
§ 706(1), and thus they need not identify a “final agency action” or “its functional equivalent.” 2
They must, however, demonstrate that the VA has failed to take a discrete agency action that it
was required to take, and that merits question merges with the ripeness inquiry of whether the
agency has done enough, promptly enough to comply with the statutory directive to “initiate
2 Although not crystal clear, it appears that Plaintiffs also sue under § 706(2), Dkt. 1 at 17 (Compl. ¶ 58), and that they have failed to identify a final agency action sufficient to support such a claim. But because Defendants raised this issue for the first time in reply, Dkt. 13 at 12, the Court will not decide, on the current record, whether Plaintiffs have stated a claim under § 706(2). 18 action through the Attorney General” to obtain “recovery of records the head of the . . . agency
knows or has reason to believe have been unlawfully removed.” 44 U.S.C. § 3106(a)
Because the facts required to decide Defendants’ ripeness challenge are the same facts
relevant to the merits of Plaintiffs’ claims, the Court will defer its ripeness determination.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss.
Defendants may renew their ripeness argument on summary judgment or, if they are able to
retrieve all of the federal records from Shulkin’s personal email, argue instead that the case is
moot at that time.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: October 30, 2020