UNITED"'STATES"DISTRICT"CUURT FOR 'I`H_E ])ISTRICT OF COLUMBIA
-CAUSE OF ACTION INST_I_TUTE, ` Plaintiff, v_
REX W. TILLERSON, in his official _ - capacity as United States Secretary of State, Case No_ l:l6-CV-2145 (TNM)
and
DA`vID s. FERRIERO, in his' official capacity as Archivist of the United States,
Defendants.
MEMORANDUM oi»INIoN AND ORI)ER
Cause of Action Institute (“Plaintit‘f” or “Cause of Action”) brings this action against
l the Secretary of State and the Archivist of the United States (“Defendants"), in an attempt to recover former Secretary of State Colin Powell’s Work-related emails, Which he created andr received on a personal entail account provided by AOL, Inc. (“AOL”). Plaintit’f argues that Defendants violated the Federal Records Act, 44 U. S.C. §§ 2101 'et seq`. (“FRA”) and the Administrative Procedures Act (“APA”) hy failing to initiate action through the Attorney Generalfor the recovery of the emails, which constitute federal records improperly removed from-the State Department_ Plaintiff has a pending Freedoln of lnforrnation Act (“FOIA”)
' request for the emails, and the injury it alleges is the continuing inability to access the emails due t0. Defendants’ failure to act.
Defendants move to dismiss for lack of standing__ They contend that the relief
Plaintift` seeks_initiation___of` action through the Attorney General to recover the emails-is-'
not likely to redress Plaintiff’ s injury, because Defendants “have no reason to believe thatl
any federal records still exist in former Secretary Powell’s private email account.” Mern. in Support of Defs.’ Mot. Disrniss 1 (hereinafter ‘FDefs.’ Mot. Dismiss”). Specifically, _Defendants argue that because AOL informed S-ecretary Powell’s personal representative that the email account no longer exists, any further effort Will be fruitless However, because the FRA is premised on leveraging the significant “law enforcement authority of the United States [as] a key weapon in assuring record preservation and recovery,” Judz'cz'al Watch, Inc. n v. Ker)y, 344 F_3d 952, `9_56 (D.C. Cir. `2016),' such investigations have proven capable of revealing even deleted emails, and Defendants’ efforts to date have been -anemic1 I conclude that Plaintiff has carried its burden of showing a substantial likelihood that the requested
relief will redress its injury. Accordingly, l deny the motion to dismiss I. BACKGROUND
Colin Powel_l served as the Secretary of State from January 20, 2001 to January 26, _ 2005_ Compl_ 2_ -During this time period, Secretary Powell “created and received” Work- related entail on a personal email accountl Id_ Under the FRA and accompanying regulations, those emails constitute federal records, which by law should remain in the custody of the federal government See 44 U.`S.C_ § 3301 (“"records’ . includes all l recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business”); 5 FAM 415.1 (Sept. 17, 2004-) (“Correspondence or email sent or received as a [State] Department official is not personali”); Compl_ 6-10. The complaint alleges_without dispute_that agency efforts to obtain the emails have been unsuccessful, citing to Congressional testimony and a State Department Ins'pector General report Compl. 2-3. When federal records are n
removed in violation of the FRA, the D.C. Circuit` has held that “private litigants may bring suit [under the APA] to require the agency head and Archivist to fulfill their statutory duty to notify Congress and ask the _Attorney General to initiate legal action,” Armstrong v. Bush, 924 F.Zd 282, 295 (D.C. Cir. 1991), because the FRA directs specific rather than discretionary action in such a case. l
In contrast to. a statute that merely authorizes an agency t`o take enforcement action as it deems necessary, the FRA requires the agency head and Archivist to take enforcement action . . ‘. Once the Archivist becomes aware of “any actual, impending, or threatened unlawlill removal, defacing, alteration, or destruction of records,” the Archivist “shall notify the head of [the] F ederal agency” involved and “assist the head of the y agency in initiating action through the Attorney General for the recovery of records unlawii,illy removed and for other redress provided by law.” 44 U.S.C. § 2905(a) (emphasis added). Similarly, once the agency head becomes aware of “any actual, impending, or threatened unlawful, removal, defacing, alteration, or destruction of records," the agency head “shall notify the Archivist” and “with the assistance of the Archivist shall initiate action through the Attorney General.” Id_ § 3106 (emphasis added). If, however, the agency head does not
l initiate an enforcement action “withi~n a reasonable period of time,” the Archivist “shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.” -
]d_ at 295-96. Pla'intiff has two outstanding FOIA requests with the State Departrnent seeking any of Secretary Powell’s Work-related emails transacted on a private account Compl. 4. On this basis, Plaintiff seeks on order requiring the current Secretary of State and the Archivist to initiate enforcement action through the Attorney General. l The Defendants assert that they have “no reason to believe” that the emails still exist Defs.’ ii/iot. Dismiss l; Reply 2. _As evidence, they explain that; . [F]ormer Secretary Powell’s representative . . . advised State
that the private email account former Secretary Powell used during his time in office had been closed for a number of years,
3 _
[] former Secretary Powell did not retain or make printed
copies of the emails . `. . and [} the General Counsel of AOL []
advised the House Committee on Oversight and Government
Reform that there are no emails in the AOL system from
former Secretary Powell’s tenure as Secretary of State. Defs.’ Mot. Dismiss 13 (citing State _Dept. letters claiming the same: Compl. Ex. 3 and Compl_ Ex. 8). Defendants rely on these representations for their own conclusion that “there is nothing further to be done in this matter.” Reply EX. 1 (Declaration of Laurence Brewer, Chief Records Officer for the U.S. Government, National Archives and Records Administration) (hereinafter-“Brewer Decl.”) (“the State Department responded to my letter, stating that the Department was informed by Secretary Powell’s representative that no emails remained in the AOL system . . . . l consider this November 6, 2016, letter sufficient to have closed out our request regarding Secretary Powell’s email.”); Reply 9-10 (“State relied on similar representations from formerl Secretary Rice’s representative`and from former Secretary Albright that they did not use a private email account for official business . . . . These representations are not sworn statements admissible as evidence at trial, and
[Defendants] are within their discretion to use them as the bases to determine that there is no
reason to believe that there are any federal records to be recovered.”) (citing the Brewer
»Decl.).
Through its opposition to the motion to dismiss, Plaintiff then supplemented the record with the actual email sent by former Secretary Powell’s personal representative Ms. Peggy Cifrino. Opp. Ex. 4 at 2', Opp. 21. In the email,`dated September 28, 2016, Ms.
Cifrino states that a certain so'meone_the name is redacted, but other records indicate that it
was lulie Jacobs, the General Counsel of AOLl- “has informed us that her office call[ed] l\/,lr. Andrew Dockham at the House Committee on Oversight and Government Reform - [OGR] to advise him that there are no emails in the AOL system from General Powell’s tenure as Secretary of State.” Opp. Ex. 4 at 2. At least two days after this alleged conversation with the A()L _General Counsel’s office occurred, on September 30, 2016, the _ OGR nonetheless sent a letter to AOL seeking the emails Opp. Ex. 5. I-Iowever, the Court has no information about what occurred as a result2
On October 26, 2016, approximately one month after Ms. Cifrino’s email to the State
Department, Cause of Action brought this suit.
II. LEGAL STANDARDS
“To be heard in federal court, every plaintiff must satisfy the ‘irreducible constitutional minimum’ of Article III standing; injury-in-fact, causation, and redressability.” Shaw v. Marriotr Int’l, [nc., 605 F.3d 1039, 1042 (D.C. Cir. 2010) (quoting Lujan v. Defenders cf Wildlz`fe, 504 U.S. 555, 560-61 (1992)). The Supreme Court articulated the modern standard for redressability in-Defenders of Wl`ldlr'fe: “it must b_e .
‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable
1 A State Dept. letter_dated November 6, 20l6, states that the source of Ms_ Cifrino’s information was “Julie Jacobs, the General Counsel of AOL,” who had “informed'Secretary Powell’s office that the AOL General Counsel’s office had advised [OGR] that there are no emails in the A()L system from Former Secretary Powell’s tenure as Secretary.” Opp. 7 (citing Defs_’ Mem. E_X. 3).
2 The Congressional letter asked that “any federal records within Secretary Powell’s accounts, after being reviewed by Secretary Powell and his representatives, be provided to the State Department.”` Opp. Ex. 5 at 2_ `At oral argument, Government counsel stated that she was not aware of what resulted from the letter. T_r. of Pro.ceedings 10_
decision.”’ 504 U.S. at 561 (quoting fi‘om Sl`mon v. E. Kentucky WeHare flights Org., 426 U.s_ 26, 7ss, 43 (1976))_
Standing is assessed “on the facts as they exist when the complaint is filed.” Id. at 569 n.4. “[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing`is not precluded, but it is ordinarily substantially more difficult to ' establish.” Id. at 562 (quotation-rnarks and citations omitted). When “speculative inferences are necessary to connect [Plaintiff’ s] injury to the challenged actions of [Defendants],” the Plaintiff has failed to carry its burden of showing redressability, because Plaintiff has not shown a “substantial likelihood” that the requested relief will remedy its injury Simon, 426 ' U.S. at 45. Accordingly, to satisfy the "‘likely” standard set forth by Defenders of Wl`ldlg`fe, Plaintiff must demonstrate that there is a “substantial likelihood”_that emails will be recovered-in an action by the Attorn'e`y General, and that the hoped-for redress is not built upon speculative inferences Vermont Agency ochrt. Res. v. US. ex rel. Stevéns, 529 U.S. 765, 771 (2000) (quoting Sl`mon’s “substantial likelihood” language)_; Teton Historl`c Avl`ation Found. vi US. Dep’l ofDef., 785 F_Sd 719, 724 (D.C. Cir. 2015) (“[T]he plaintiff must demonstrate redressability, or_ a ‘substantial likelihood’ that the requested relief will remedy _ the alleged injury in _fact."”) (citations omitted)_ _
When facing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1j, the plaintiff bears the burden of proof US Ecology, Inc. v. U.S. Dep ’I oflnierior, 231 F3d 20, 24 (D.C. Cir. 2000)_ However, the Court must still “assume the truth of all material factual allegations in the complaint and construe the complaint liberally`, granting plaintiff the benefit of all inferences_that can be derived from the facts alleged.” Am. Nar. [ns. Co.- v.
F.D.I.Ci, 642 F_3d 1137, 1139_ (D.C. Cir. 2011) (citations omitted). “[T]he district court may
consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Srevens Pharm., fnc. v. Food & Drug Admtn., 402 F.3d 1249,
1253 (D.C. Cir. 2005). nl. ANALYSIS
At bottom, the fundamental question raised by the motion to dismiss is whether Plaintiff has shown a`“substantial likelihood” that its injury will be redressed by an order requiring Defendants to initiate action seeking these emails through the Attorney General. See Defenders of l/l/'l`ldlife, 504 U.S. at 561; Sr`mon, 426 U.S. at 45. Defendants contend that such redress is not likely, because they have “engaged in remedial measures to recover any such records that might still exist, consistent with the administrative scheme of the FRA,” and “Defendants now have no reason to believe that any federal records still exist in former Secretary Powell’s private email account.” Defs_’ Mot. Dismiss 1_ Defendants rely on their requests to Secretary Powell to find the emails, and the proffer that
[F]ormer Secretary Powell’s representative advised State that
the private em`ail account former Secretary P'owell used during
his time in office had been closed for a number of years, that
Secretary Powell did not retain or make printed copies of the
emails from this private account, and that there are no emails `
. remaining in the AOL system from former Secretary Powell’s
tenure as Secretary of State. [d. In response, Plaintiff contends that initiating action through the Attorney General is required by the FRAj and that “thefull force and power of the Department of Justice” is
likely to “recover[] at least some of Secretary Powell’s work related emails.” Opp. 16
(emphasis in original).3 For`the reasons that follow, i conclude that even if l consider
_ 3 Plaintiffs also contend that referral to the Attorney General will`itself constitute redress for the alleged injuryq,since,initiating action through the Attorney General is the remedy
Defendants‘ proffered hearsay, Plaintiff has carried its burden of showing a substantial likelihood of redress
in assessing the facts of this case, the D.C. Circuit’s recent decision in Judicial Warch v. Kerry is instructive 844 F.3_d at 953. In Judz'cz`al 'Warch, the court considered a very similar case, consolidated from individual suits brought by`Judicial Watch and Cause of
Action, but this time in search of Work emails associated with former Secretary of State
Clinton and her private email accounts Id. As in this case, the State Department tried to recover work-related emails by asking Secretary Clinton’s intermediaries for assistancel Id. at 954_ “[U]pon learning that the FBI' had taken custody of Clinton’s-private server and a thumb drive containing electronic copies of the emails she had previously produced, the [State] Department also asked the FBI to provide it with a copy of those records.” Id. lThese efforts produced thousands of pages of documents, and the Secretary of State and the Archivist decided not_to initiate further action with the Attorney Gene_ral, prompting two suits seeking that referral Id. The district court dismissed the suits as moot, since the defendants had already made a “sustained effort” to recover the missing emails Judicl'al Watch, Inc. v. Kerrj)-,' 156 fn Supp. 3d 69, 77 (D._D.C. 2016). The D.C. Circuit reversed,
reasoning that “[e]ven though [prior] efforts bore some fruit, the Department has not
contemplated by the FRA. Opp; 14-15. But Plaintiff s reasoning.is mistaken lt is true that the FRA contemplates, and indeed requires, that Defendants ask the Attorney General for help in securing lost federal records_'l But the Constitution requires Plaintiff to show that “that the injury will be redressed by a favorable decision,” Defenders cf l/Vr'fdlife, 504 U.S_. at 561 (ci_tation omitted). Plaintiff itself admits that “inability to access records” is the _ underlying injury, Compl. 12, not inability to secure adequate search efforts “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.”` Stee[ -CO. v. Cl`tl`zensfor a Berrer Env ’t, 523 U.S. 83, 107, 118 S. Ct_ 1003' (1998). Accordingly, the pertinent question remains whether referral to the Attor_ney General creates a substantial likelihood that Plaintiff will recover any emails
' explained why shaking the tree harder¥e.g., by following the statutory mandate to seek action by the Attorney General-might not bear more still.” Id. at 955. Thecourt n particularly relied upon the fact thatalthough the FBI had custody of Secretary Clinton’s private server, other emails had been stored in Secretary Clinton‘s Blackberry account, and ` the complaints at issue sought all work-related emails Accordingly, the court found that “[w]hile the case might well also be moot if a referral were pointless (e_g_, because no imaginable enforcement action by the Attorney General could lead to recovery of the missing emails)j the record.here provides no factual support for finding mootness on that basis.” 'Id. at 956_ Judicial Warch went on to explicitly reject the district court’s reasoning Id. Where - the district court had found the-suits moot because the defendants had already undertakena “sustained effort,” Judicl`al Warch concluded that this interpretation would “flip armstrong on its head and carve out enormous agency discretion from a'supposedly mandatory rule,” 7 since agencies could then avoid the FRA’s mandatory language by simply undertaking a _ search that that satisfied their own standards fd. (citing Armsrrong, 924 F_-2d- at 295)_ “While we recognized that sometimes an agency might reasonably attempt to recover its n records before running to the Attorney General,” the D.C. Circuit reasoned,~"‘we never implied that where those initial efforts failedlto recover all the missing records (or establish their fatal loss), the agency could simply ignore its referral duty.” ]d. On remand, the district court again found that the case was moot. Judicictl Warch,
Inc. v. Tr'llerson, No. CV 15~1068, 2017 WL 5198161, at *7 (D.D.C. Nov. 9, 2017). But the district court reached this conclusion only after the Government submitted supplementary
affidavits proving that “the FBI []exhausted all imaginable investigative avenues,” including
“obtaining personal electronic devices used by the Secretary that might have contained relevant-emails,” interviewing “individuals who'had the most frequent work-related communications with Secretary Clinton, thereby obtaining additional email correspondence,” ' and even submitting grand-jury subpoenas to “RIM, the maker of Blackberry electronic devices; Cingular Wireless and its successor, AT&T wireless, which provided mobile-phone _ service and thus data access; and the unnamed third-party service provider for Clinton’s l emails.” ld. at *7.4 In response to the subpoenas, all of the private service providers “swore
. . . that they retained ‘no data’ related to the emails_” Id. at *9. Because “the Attorney General’s investigative arm join[ed] Defendants’ conclusion that there are no.remaining emails for State to recover . . . as part of an investigation related to national security, in which it had every incentive to ‘shake the tree’ with all its might,” the district-court reasoned that “[i]t strains credulity” to imagine “that the Attorney General would implement a more exhaustive search in response to a federal-records request.” Id. at *7.
Of course, the Judl`cz`al Warch line of cases We_re decided on mootness grounds, while this case turns on standing However, the difference is almost inconsequential “Mootness and standing are related concepts The Supreme Court has characterized mootness as ‘the doctrine of standing set in a time frame; The requisite personal interest that must exist at the ' commencement of the litigation (standing) must continue throughout its existence (mootness)_”’ Gcrrden State Broad. Ltd. P'ship v. F.C.C., 996 F.2d 386, 394 (D.C. Cir` 1993) (quoting United States Parole Comm'n v. Geraghly, 445 U.S. 388, 397 (1980)). Both
mootness and standing involve the question of redressability Id_ at 395 (finding plaintiffs
4 l list these efforts as examples of investigative techniques used in a similar case. l do not mean to suggest that all of these steps would be either necessary or appropriate in the instant case. ` '
10_
appeal moot because it cf‘presents no redressable injury_”). Accordingly, I consider the D.C. Circuit’s opinion in Judl'cl'al Watch both factually and legally instructive
Ultimately, three related factors lead me to conclude that there is a “substantiaf likelihood” that referral to the Attorney General will yield access to at least some of Secretary Powell’s emails.
First is the Defendants’ lack of effort Strikingly, they have never once contacted .AOL themselves, despite their admitted statutory authority to do so.5 In fact, the Defendants in this case have exerted significantly less effort than in the first round of Judicia] Wcttch, where they were able to rely upon robust investigative efforts in a related matter performed by the FBI, which wields the law enforcement authority of the Attorney General; - Here, all they have done has been to ask Secretary Powell to seek the emails himself, and then declare “mission accomplished” when Secretary Powell’s representative informed them that AOL
believed.the emails 'no longer exist.6 If AOL were to be contacted directly by the
5 'l`he State Department apparently originally believed it had no such authority, but this misunderstanding has since been corrected Compl. 4; Tr. of Proceedings lO.
_ 6 A review of pertinent case law'suggests that admissibility-and a focus on reliability~4
should guide me in assessing whether to rely on evidence outside of the pleadings A district judge in this Circuit recently held that “when considering a motion to dismiss for lack of subject matter jurisdiction, a court cannot -‘rely on conclusory or hearsay statements contained in the affidavits_”_` We!bom v. internal Revenue Serv., 218 F_ Supp. 3d 64, 80 (D.D.C. 2016) (citations omitted)_ The D.C. Circuit has yet to embrace that conciusion, but adopts a consonant rule; “under Rule iZ(b)(l), procedural safeguards equivalent to those in Rule 56 [summary judgment} are required, with Rule 56 used selectively as a guide to ensuring fairness.” Gordon v. Nal'l' Youth WorkAll., 675 F.2d 356, 360 (D.C. Cir_ 1982) (citations omitted). Gordon reasoned that under either rule, dismissing over a disputed , factual question (in that case, the date that a notice was actually received) without affording ’procedural safeguards would be error. Here, I can resolve the question of standing without deciding whether to credit Defendants’ claims Defendants essentially ask the Court to rely on the AOL General Counsel’s representation made to a House committee, which in turn was relayed to Defendants through former Secretary Powell’s personal representative Even if
' AOL’s representations are accepted as truthfuf, the Court is still left without any knowledge
of how AOL went about researching the question, and the extent to which Secretary Powell’s
ll
- Government, rather than by Secretary Powell’ s representatives, perhaps they would undertake a more thorough search for Secretary Powell’s account, or the servers on which it was stored
Second, Cause of Action is asking Defendants to bring the significant law
enforcement authority_of` the Attorney Generai to bear. As the D.C. Circuit explained in
-Judl`cz'al Watch, there’s a difference between kindly asking records custodians to help, and enlisting the Attorney General’s coercive powerl Judicl'al Watch, 844 F.3d at 955 (enlisting “action by the Attorney General” constitutes “shaking the tree harder_”) The Attorney General wields significant power, and has demonstrated that power in this context with grand-jury subpoenas, interviews with those who frequently exchanged relevant-emails, the voluntary collection of “personal electronic devices used by,the Secretary,” and even a search warrant for a personal computer Judt'ci`a] Watc/'i, Inc., 2017_WL 5]9816l at *7. As the D.C. Circuit has made clear in both Armstrong_ and Judicial Watch, the FRA “rest[s] on-a belief that marshalling the law enforcement authority 'of the United States [is] a key weapon in assuring record preservation and recovery.” Id. at 956 (D.C. Cir. 2016); Armstrong, 924 F.Zd at 295 (“Unless the Archivist.notifies the agency head (and, if necessary, Congress) and requests the Attorney General to initiate legal action, the administrative enforcementand congressional oversight provisions will not be triggered, and there will be no effective way to ' prevent the destruction or removal of records.”). The Defendants’ refusal to turn to the law
enforcement authority of the Attorney G_eneral is particularly striking in the context of a
emails have been permanently erased or perhaps merely deleted Assuming that-the AOL 'General Counsel’s office really did say that no pertinent emails remained in the AOL system, and even assumingthat AOL believed that fact to be true, Plaintiff would still have standing
statute with explicitly mandatory language.7 See Armsirong,'924 F.2d at 295-96 (“[O]nce the agency head becomes aware of ‘any actual . . .' removal . . . or destruction of records,’ the agency head ‘with the assistance of the Archivist shall initiate action through the Attorney Generai.”’) (quoting 44 U.S.C. § 3106) (emphasis in Armsn*ong).
Third, action by the Attorney General has yielded fruit before, even when the emails l at issue had been deleted in the investigation into Secretary Clinton’s emails, the FBI’s forensic techniques revealed over 17,000 emails that others had believed to be deleted or unrecoverable. f)efs.’ Mem.' Ex. l at 19-20; Judi`cial Watch, [nc., 2017 WL 5198161, at *5 n (Using forensic searches, “the FBI recovered nearly 17,500 unique pages of emails above . and beyond those already submitted by Clinton’s team.”.). It is true that grand jury subpoenas submitted to the service providers in Ji-:di'cal Watch yielded “no data.” 2017 WL 5198161 at *9. But emails stored by third party service providers may not be the only source at issue l And even if AOL processes have erased Secretary Powell’s emails on the AOL servers, a thorough investigation undertaken by the Attorney General might well yield fruit via other
aV€I'll.I€S.
7 In their Reply, Defendants contend that they are only required to initiate action through the Attorney General if they have “r_eason to believe” that federal records can be recovered `Reply. 6 (“Under the FRA, an agency’s obligation to initiate action through the Attorney General . . . arises only if ‘the head of the Federal agency knows or has reason to believe”’ that federal records “exist to be recovered.”)‘ (citation omitted). But this contention ignores the language of the FRA, which requires referral if “the head of the Federal agency knows or has reason to believe [federal records] have been unlawfully removed-from that agency,” 44 U.S.C. § 3106(a) (emphasis added). lt also conflicts with the D.C. Circuit’s holding that although “the FRA contemplates that the agency head and Archivist may proceed first [on their own],” ultimately “the decision to seek the initiation of an enforcement action to prevent the destructionor removal of records is not committed by law to the agency head’s or Archivist’s discretion.” Armsn'_ong, 924 F_2d at 295, 296 n.12.
In suin, I conclude that there is a substantial likelihood that Plaintiff’ s requested relief would yield access to at least some of the emails at issue. Accordingly, Plaintiff’ s injury is
redressable, and it has standing to pursue the case further
IV. CONCLUSION For the aforementioned reasonsJ the Defendants’ Motion to Dismiss is hereby DENIED.
SO ()RDERED.
TREVOR .M FADDEN
_ Dated: January 9, 2018 ~ United States District Judge
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