Judicial Watch, Inc. v. John Kerry

Filing 2

NOTICE OF APPEAL [1596418] filed by Judicial Watch, Inc. seeking review of a decision by the U.S. District Court in 1:15-cv-00785-JEB. Appeal assigned USCA Case Number: 16-5015. [16-5015]

Case 1:15-cv-00785-JEB Document 23 Filed 01/13/16 Page 1 of 26

APPEAL,CLOSED,TYPE−E

U.S. District Court
District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:15−cv−00785−JEB
Date Filed: 05/28/2015
Date Terminated: 01/11/2016
Jury Demand: None
Nature of Suit: 899 Administrative
Procedure Act/Review or Appeal of
Agency Decision
Jurisdiction: U.S. Government Defendant

JUDICIAL WATCH, INC. v. KERRY
Assigned to: Judge James E. Boasberg
Member case:
1:15−cv−01068−JEB
Cause: 05:702 Administrative Procedure Act

Plaintiff
JUDICIAL WATCH, INC.

represented by James F. Peterson
JUDICIAL WATCH, INC.
425 Third Street, SW
Suite 800
Washington, DC 20024
(202) 646−5175
Fax: (202) 646−5199
Email: [e-mail]
ATTORNEY TO BE NOTICED

Plaintiff
CAUSE OF ACTION INSTITUTE
15−CV−1068

represented by Daniel Zachary Epstein
CAUSE OF ACTION
1919 Pennsylvania Avenue, NW
Suite 650
Washington, DC 20006
(202) 499−4232
Fax: (202) 330−5842
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Russel James Valvo , III
CAUSE OF ACTION
1919 Pennsylvania Avenue, NW
Suite 650
Washington, DC 20006
(202) 499−4232
Email: [e-mail]
ATTORNEY TO BE NOTICED

V.
Defendant
represented by

1

Case 1:15-cv-00785-JEB Document 23 Filed 01/13/16 Page 2 of 26

JOHN F. KERRY
In His Official Capacity as U.S.
Secretary of State, The Executive Office

Carol Federighi
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
(202) 514−1903
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
DAVID FERRIERO
(15−cv−1068) In his official capacity as
Archivist of the United States

represented by Carol Federighi
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

#

05/28/2015

1

COMPLAINT against JOHN F. KERRY ( Filing fee $ 400 receipt number
0090−4113236) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil
Cover Sheet, # 2 Summons U.S. Attorney for the District of Columbia, # 3
Summons U.S. Attorney General, # 4 Summons John F. Kerry)(Peterson,
James) (Entered: 05/28/2015)

05/28/2015

2

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and
Financial Interests by JUDICIAL WATCH, INC. (Peterson, James) (Entered:
05/28/2015)

05/28/2015

Page Docket Text

Case Assigned to Judge James E. Boasberg. (md) (Entered: 05/28/2015)

05/29/2015

3

SUMMONS (3) Issued Electronically as to JOHN F. KERRY, U.S. Attorney
and U.S. Attorney General (Attachments: # 1 Notice of Consent)(md) (Entered:
05/29/2015)

06/10/2015

4

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed.
JOHN F. KERRY served on 6/8/2015, RETURN OF SERVICE/AFFIDAVIT of
Summons and Complaint Executed on United States Attorney General. Date of
Service Upon United States Attorney General 06/08/2015., RETURN OF
SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United
States Attorney. Date of Service Upon United States Attorney on 6/8/2015. (
Answer due for ALL FEDERAL DEFENDANTS by 8/7/2015.) (Attachments: #
1 Declaration of Cristina Rotaru)(Peterson, James) (Entered: 06/10/2015)

07/15/2015

5

NOTICE of Appearance by Carol Federighi on behalf of JOHN F. KERRY
(Federighi, Carol) (Entered: 07/15/2015)

07/24/2015

6

MOTION to Consolidate Cases , MOTION for Extension of Time to File
Answer re 1 Complaint, by JOHN F. KERRY (Attachments: # 1 Text of
Proposed Order)(Federighi, Carol) (Entered: 07/24/2015)

07/27/2015

MINUTE ORDER: If Plaintiff opposes either Defendant's Motion to
Consolidate or his Motion for Extension, the Court ORDERS that it shall file
such Opposition by July 29. 2015. Signed by Judge James E. Boasberg on

2

Case 1:15-cv-00785-JEB Document 23 Filed 01/13/16 Page 3 of 26

7/27/15. (lcjeb1) (Entered: 07/27/2015)
07/27/2015
07/29/2015

Set/Reset Deadline: Plaintiff's opposition due by 7/29/2015. (ad) (Entered:
07/27/2015)
7

Memorandum in opposition to re 6 MOTION to Consolidate Cases MOTION
for Extension of Time to File Answer re 1 Complaint, filed by JUDICIAL
WATCH, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Text of Proposed Order)(Peterson, James) (Entered: 07/29/2015)

08/04/2015

MINUTE ORDER: The Court ORDERS that the 6 Motion to Consolidate is
GRANTED. Case No. 15−1068 shall be consolidated with Case No. 15−785.
Defendants shall have until September 14, 2015, to file their response to the
Complaints. Signed by Judge James E. Boasberg on 8/4/15. (lcjeb1) (Entered:
08/04/2015)

08/04/2015

Set/Reset Deadline: Defendants shall have until 9/14/2015, to file their response
to the Complaints. (ad) (Entered: 08/04/2015)

08/04/2015

Cases Consolidated. Cases 15−cv−785 and 15−cv−1068 have been consolidated.
pursuant to an Order entered 8/4/2015. From this date forward, ALL
DOCUMENTS SHALL ONLY BE FILED/ENTERED IN THE LEAD CASE
15−CV−785 JEB. The parties are advised NOT to elect the SPREAD TEXT
option when filing in ECF, as this will result in repetitive docketing and emails.
(td) (Entered: 08/04/2015)

09/14/2015

8

MOTION for Extension of Time to File Answer re 1 Complaint, (Further) by
DAVID FERRIERO, JOHN F. KERRY (Attachments: # 1 Text of Proposed
Order)(Federighi, Carol) (Entered: 09/14/2015)

09/14/2015

MINUTE ORDER: Defendants' 8 Motion for Extension of Time to File is
hereby GRANTED. The Court ORDERS that Defendants shall file their
response to the Complaints on or before September 17, 2015. Signed by Judge
James E. Boasberg on 9/14/15. (lcjeb1) (Entered: 09/14/2015)

09/15/2015

Set/Reset Deadline: Defendants shall file their response to the Complaints on or
before 9/17/2015. (ad) (Entered: 09/15/2015)

09/17/2015

9

MOTION to Dismiss for Lack of Jurisdiction and for Failure to State Claim by
DAVID FERRIERO, JOHN F. KERRY (Attachments: # 1 Memorandum in
Support, # 2 Exhibit 1: Letter from Patrick Kennedy to James Comey (Sept. 14,
2015), # 3 Text of Proposed Order)(Federighi, Carol) (Entered: 09/17/2015)

10/02/2015

10

Joint MOTION for Extension of Time to File Response/Reply to Defendant's
Motion to Dismiss by CAUSE OF ACTION INSTITUTE, JUDICIAL WATCH,
INC. (Attachments: # 1 Text of Proposed Order)(Epstein, Daniel) (Entered:
10/02/2015)

10/05/2015

MINUTE ORDER granting the parties' Joint 10 Motion for Extension of Time
to File Response/Reply. The Court ORDERS that: 1) Plaintiffs shall file their
Opposition to Defendants' 9 Motion to Dismiss on or before October 7, 2015;
and, 2) Defendants shall file their Reply on or before October 21, 2015. Signed
by Judge James E. Boasberg on 10/5/15. (lcjeb1) (Entered: 10/05/2015)

10/06/2015

Set/Reset Deadlines: Plaintiffs shall file their Opposition to Defendants' 9
Motion to Dismiss on or before 10/07/2015; and, Defendants shall file their

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Case 1:15-cv-00785-JEB Document 23 Filed 01/13/16 Page 4 of 26

Reply on or before 10/21/2015. (ad) (Entered: 10/06/2015)
10/07/2015

11

Memorandum in opposition to re 9 MOTION to Dismiss for Lack of
Jurisdiction and for Failure to State Claim filed by CAUSE OF ACTION
INSTITUTE. (Attachments: # 1 Exhibit #1−11)(Epstein, Daniel) (Entered:
10/07/2015)

10/07/2015

12

Memorandum in opposition to re (9 in 1:15−cv−00785−JEB) MOTION to
Dismiss for Lack of Jurisdiction and for Failure to State Claim filed by
JUDICIAL WATCH, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3
Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Text of Proposed Order)Associated
Cases: 1:15−cv−00785−JEB, 1:15−cv−01068−JEB(Peterson, James) (Entered:
10/07/2015)

10/08/2015

NOTICE OF ERROR re 12 Memorandum in Opposition; emailed to
[e-mail], cc'd 4 associated attorneys −− The PDF file you
docketed contained errors: 1. Please remember that all documents are ONLY
filed in this case. Do Not Spread. (td, ) (Entered: 10/08/2015)

10/08/2015

13

NOTICE of Appearance by Russel James Valvo, III on behalf of CAUSE OF
ACTION INSTITUTE (Valvo, Russel) (Entered: 10/08/2015)

10/08/2015

14

MOTION for Discovery Regarding Jurisdiction by CAUSE OF ACTION
INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Declaration Decl.
in Supp. of Mot., # 3 Exhibit Exs. for Decl., # 4 Text of Proposed Order)(Valvo,
Russel) (Entered: 10/08/2015)

10/20/2015

15

MOTION for Discovery (Jurisdictional) by JUDICIAL WATCH, INC.
(Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered:
10/20/2015)

10/21/2015

16

REPLY to opposition to motion re 9 MOTION to Dismiss for Lack of
Jurisdiction and for Failure to State Claim filed by DAVID FERRIERO, JOHN
F. KERRY. (Attachments: # 1 Exhibit A: Kennedy Letter 10−2−15, # 2 Exhibit
B: Kendall Letter 10−8−15)(Federighi, Carol) (Entered: 10/21/2015)

10/26/2015

17

Memorandum in opposition to re 14 MOTION for Discovery Regarding
Jurisdiction, 15 MOTION for Discovery (Jurisdictional) filed by DAVID
FERRIERO, JOHN F. KERRY. (Federighi, Carol) (Entered: 10/26/2015)

11/05/2015

18

REPLY to opposition to motion re 14 MOTION for Discovery Regarding
Jurisdiction filed by CAUSE OF ACTION INSTITUTE. (Valvo, Russel)
(Entered: 11/05/2015)

11/05/2015

19

REPLY to opposition to motion re 15 MOTION for Discovery (Jurisdictional)
filed by JUDICIAL WATCH, INC.. (Peterson, James) (Entered: 11/05/2015)

01/11/2016

20

25 ORDER DENYING 14 15 Motions for Discovery and GRANTING 9 Motion to
Dismiss for Lack of Jurisdiction. Signed by Judge James E. Boasberg on
1/11/16.(lcjeb3) (Entered: 01/11/2016)

01/11/2016

21

8 MEMORANDUM OPINION re 20 Order. Signed by Judge James E. Boasberg
on 1/11/16.(lcjeb3) (Entered: 01/11/2016)

01/12/2016

22

6 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 21 Memorandum &
Opinion, 20 Order on Motion to Dismiss/Lack of Jurisdiction by JUDICIAL

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Case 1:15-cv-00785-JEB Document 23 Filed 01/13/16 Page 5 of 26

WATCH, INC.. Filing fee $ 505, receipt number 0090−4375895. Fee Status:
Fee Paid. Parties have been notified. (Peterson, James) (Entered: 01/12/2016)

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Case 1:15-cv-00785-JEB Document 22 Filed 01/12/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v.
JOHN F. KERRY,
in his official capacity as
U.S. Secretary of State,
Defendant.

CAUSE OF ACTION INSTITUTE,
Plaintiff,
v.
JOHN F. KERRY,
in his official capacity as
U.S. Secretary of State, and
DAVID S. FERRIERO, in his official
capacity as U.S. Archivist,
Defendants.

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Civil Action No. 15-785 (JEB)

Civil Action No. 15-1068 (JEB)

NOTICE OF APPEAL
Notice is hereby given that Plaintiff Judicial Watch, Inc. appeals to the United States
Court of Appeals for the District of Columbia Circuit from the final judgment entered in this
action on January 11, 2016, which denied Plaintiffs’ Motions for Jurisdictional Discovery and
granted Defendants’ Motion to Dismiss.

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Case 1:15-cv-00785-JEB Document 22 Filed 01/12/16 Page 2 of 2

Dated: January 11, 2016

Respectfully submitted,
/s/ James F. Peterson
James F. Peterson (D.C. Bar No. 450171)
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, DC 20024
[phone]
Counsel for Plaintiff

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01/13/16
8 26

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC,
Plaintiff,
v.

Civil Action No. 15-785 (JEB)

JOHN F. KERRY, in his official capacity as
U.S. Secretary of State,
Defendant.
------------------------------------------------------CAUSE OF ACTION INSTITUTE,
Plaintiff,
v.
Civil Action No. 15-1068 (JEB)
JOHN F. KERRY, in his official capacity as
U.S. Secretary of State, and
DAVID S. FERRIERO, in his official
capacity as U.S. Archivist,
Defendants.

MEMORANDUM OPINION
It would be understatement to note that email communications involving Hillary Clinton
as Secretary of State have generated controversy. In fact, dozens of suits have been filed in the
federal courthouse here invoking the Freedom of Information Act to compel release of certain
emails. The current consolidated cases, however, offer a variation on this theme. Instead of
relying on FOIA, these actions by Judicial Watch and Cause of Action Institute invoke the
Federal Records Act.

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01/13/16
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The question here is whether the heads of the State Department and the National
Archives and Records Administration – Defendants in these suits – have complied with the FRA
in their management of federal records that include the Clinton emails. While the government’s
actions and the emails themselves have become a political lightning rod, feeding an insatiable
media appetite, the legal issues presented by these cases are relatively straightforward – not least
because a plaintiff’s right to sue under the FRA is fairly limited. Given the steps the government
has taken to recover the emails, the Court concludes that Plaintiffs’ claims are now moot and will
be dismissed for lack of subject-matter jurisdiction.
I.

Background
Judicial Watch, which describes itself as a non-profit “educational organization . . . [that]

seeks to promote transparency, accountability, and integrity in government and fidelity to the
rule of law,” routinely requests records from federal agencies under the Freedom of Information
Act. See JW Compl., ¶ 3. Following various New York Times articles in early 2015 reporting
that former Secretary Clinton had “used at least one non-‘state.gov’ email account to conduct
official government business,” and that she had stored those emails “on a server at her home in
Chappaqua, New York,” Judicial Watch became concerned that federal records had been
unlawfully removed from the State Department. Id., ¶ 5. It thus filed this suit in May 2015. The
gravamen of its Complaint is that “the State Department’s failure to retain, manage, and search
these agency records” violates the FRA, which violation cannot be remedied “unless and until
[current Secretary of State John] Kerry . . . initiates action through the attorney general to
recover the Clinton emails.” Id., ¶¶ 7, 29. Judicial Watch therefore seeks declaratory and
injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701, et seq, to require such
action. See id., ¶¶ 20-29.

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Jumping on the bandwagon, plaintiff Cause of Action Institute (CAI) brought a similar
lawsuit two months later against both Kerry and the Archivist of the United States, David
Ferriero, in their official capacities. See CAI Compl., ¶ 1. “Concerned that Clinton had violated
the Federal Records Act by using a private email account on a private server to conduct
government business,” CAI and several other government oversight groups wrote to Defendants
on March 17, 2015, to convey the view that it was “‘of the utmost importance that all of former
Secretary Clinton’s emails are properly preserved and transferred back to the State
Department.’” Id., ¶ 9 & Exh. 1. As a result of these allegedly missing emails, CAI’s suit
maintains that Defendants “should have carried out their non-discretionary statutory duty to
initiate legal action to recover all federal records in Clinton [sic] possession and unlawfully
removed from the State Department, and to notify Congress that such action is being taken,” and
that their failure to do so violates the FRA. Id., ¶¶ 16-17. In addition to mirroring Judicial
Watch’s request for injunctive and declaratory relief, CAI also asks the Court to issue a writ of
mandamus ordering Defendants to comply with the FRA “by initiating legal action against
Clinton through the Attorney General.” Id., ¶ 68. Both Plaintiffs invoke the APA provision
permitting courts to “compel agency action unlawfully withheld or unreasonably delayed” as the
basis for the relief they seek. See 5 U.S.C. § 706(1).
Defendants subsequently moved to consolidate these two actions, since “both cases arise
out of former Secretary of State Clinton’s use of emails stored on her personal server in the
course of her government duties, and both cases seek court orders directing defendants to take
action to recover these emails pursuant to the FRA.” Mot. to Consol., ¶ 3. In light of the
propinquity of the two suits, the Court granted the Motion. See Minute Order of August 4, 2015.
Defendants have now moved to dismiss.

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II.

Legal Standard
In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint’s

factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal
citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005). This standard governs the Court’s considerations of Defendants’ contentions under both
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]n
passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject
matter or for failure to state a cause of action, the allegations of the complaint should be
construed favorably to the pleader.”); Walker v. Jones, 733 F.2d 923, 925–26 (D.C. Cir. 1984)
(same). The Court need not accept as true, however, “a legal conclusion couched as a factual
allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006).
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of
proving that the Court has subject-matter jurisdiction to hear its claims. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015). A court has an “affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d
9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for
failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss

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under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding
whether to grant a motion to dismiss for lack of jurisdiction. . . .” Jerome Stevens Pharm., 402
F.3d at 1253.
III.

Analysis
In moving to dismiss, Defendants rely on both Rule 12(b)(1) and 12(b)(6). As to the

former, they first assert that Plaintiffs lack standing since any injury occasioned by the removal
of emails had already been redressed by State’s recovery efforts prior to the filing of these suits.
See MTD at 13-14. Defendants alternatively contend that steps recently taken by State fully
satisfy its obligations under the FRA, thus rendering the suit moot. See id. at 17. Even if
jurisdiction exists here, Defendants also argue that the organizations have failed to state a claim
for relief under the APA or the mandamus statute. See id. at 20-21.
Plaintiffs not only oppose Defendants’ Motion, but they also move for jurisdictional
discovery to aid them in establishing the Court’s subject-matter jurisdiction. See CAI Motion for
Jurisdictional Discovery (ECF No. 14); see also JW Motion for Jurisdictional Discovery (ECF
No. 15). They hope to ascertain whether and to what extent federal records were removed by
Secretary Clinton, as well as what specific actions were taken by Defendants before and after
these lawsuits were filed. See CAI Disc. Mot. at 13-20. Unsurprisingly, Defendants believe
such discovery is unnecessary.
The Court ultimately concludes that the case is moot. As a result, it need not address the
questions of standing and whether the Complaints sufficiently make out a claim. Its analysis will
begin with a discussion of the FRA, proceed to an examination of mootness, and conclude with a
look at jurisdictional discovery.

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A. The Federal Records Act
The FRA is “a collection of statutes governing the creation, management, and disposal of
federal records.” Public Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir. 1999). See also 44
U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq. Pursuant to the Act, heads of
federal agencies are required to “make and preserve records containing adequate and proper
documentation of the organization, functions, policies, decisions, procedures, and essential
transactions of the agency.” Id. § 3101. Each agency head shall also “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].” Id. § 3105.
A series of provisions within the FRA sets forth a structure whereby the Archivist and
agency heads are to work together to ensure that documents are not unlawfully destroyed. Each
agency head
shall notify the Archivist of any actual, impending, or threatened
unlawful removal, defacing, alteration, corruption, deletion, erasure,
or 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.
Id. § 3106. If the agency head does not “initiate action” through the Attorney General, “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. And if 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.” CREW v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 101, 110
(D.D.C. 2007) (citation and quotation marks omitted).
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The core of the parties’ dispute here is precisely what enforcement obligations the FRA
imposes on Defendants and when private litigants can compel remedial action. Plaintiffs ask the
Court to require Defendants to initiate action through the Attorney General to recover Secretary
Clinton’s emails, which Plaintiffs contend are “federal records” covered by this statutory
scheme. See CAI Compl., ¶¶ 35-37. Defendants rejoin that they have already taken sufficient
steps to recover these emails and thus need not invoke the aid of the Attorney General.
B. Mootness
In supporting their position, Defendants raise both standing and mootness defenses,
which are distinguished by the question of timing. See Garden State Broad. Ltd. Partnership v.
FCC, 996 F.2d 386, 394 (D.C. Cir. 1993) (“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).’”) (quoting U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 397 (1980)). In other words, a standing inquiry is concerned with the presence of
injury, causation, and redressability at the time a complaint is filed, while a mootness inquiry
scrutinizes the presence of these elements after filing – i.e., at the time of a court’s decision. See
La Botz v. Fed. Election Comm’n, 61 F. Supp. 3d 21, 28 (D.D.C. 2014) (“Whether a plaintiff has
standing is determined at the time the suit commences. Thus, standing in the present action is
ascertained from the facts as they existed when [Plaintiff] first filed his complaint in this Court.”)
(citations omitted); see also Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir.
2000) (“The claim may sound like one of mootness – a justiciable controversy existed but no
longer remains – but the timing makes [Plaintiff’s] problem one of standing. . . . Standing is

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assessed at the time the action commences, i.e., in this case, at the time [Plaintiff] sought relief
from an Article III court. . . .”) (internal quotation marks and citation omitted).
In the present case, relying on mootness is simpler, for it permits the Court to examine
factual developments both before and after the filing of the Complaint. As the record at present
clearly demonstrates that Plaintiffs can no longer establish a justiciable case or controversy, the
Court need not address the parties’ contentions as to standing at the time the suit was filed.
As the Supreme Court has explained time and again, where a plaintiff “c[an] not show
any continuing injury, . . . no justiciable controversy remain[s].” Already, LLC v. Nike, Inc.,
133 S. Ct. 721, 726 (2013). “To save a case from mootness the ongoing injury must be more
than a remote possibility, not conjectural, more than speculative.” Liu v. I.N.S., 274 F.3d 533,
535 (D.C. Cir. 2001) (quotation marks and citations omitted). Importantly, “[p]ast injury from
alleged unconstitutional conduct does not in itself show a present case or controversy regarding
injunctive relief, if unaccompanied by current adverse effects.” A.N.S.W.E.R. Coalition v.
Kempthorne, 493 F. Supp. 2d 34, 43 (D.D.C. 2007) (quotation marks and citation omitted).
Although Defendants discuss mootness primarily in terms of redressability, the Court believes
their arguments are better characterized as addressing the question of whether any injury still
exists.
As a threshold matter, because Defendants do not argue to the contrary, the Court
assumes without deciding that Plaintiffs fall within the “zone of interests of the records disposal
provisions of the FRA,” such that they may attempt to allege injury. See Armstrong v. Bush
(Armstrong I), 924 F.2d 282, 288 (D.C. Cir. 1991); see also CREW v. SEC (CREW v. SEC I),
858 F. Supp. 2d 51, 59-60 (D.D.C. 2012) (noting lack of relevant Circuit authority but finding
FRA injury where plaintiff alleged impaired access to FOIA documents).

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That issue sidestepped, the Court begins its mootness inquiry by examining the nature of
injuries cognizable under the FRA. As a reminder, pursuant to the “mandatory statutory
language” in the Act, “the agency head and Archivist are required to take action to prevent the
unlawful destruction or removal of records.” Armstrong I, 924 F.2d at 296 n.12. Where they fail
to act, an injury may result, and “the APA permits judicial review of an agency head’s
enforcement obligations, as they are defined by the FRA.” CREW v. U.S. Dep’t of Homeland
Sec., 527 F. Supp. 2d at 111 (citing Armstrong I, 924 F.2d at 296).
Plaintiffs envision this as such a suit. They believe that the State Department and the
Archivist must initiate legal action through the Attorney General as soon as they receive notice
that federal records have been unlawfully removed; as they have not done so in relation to the
Clinton emails, Plaintiffs contend that the Court should so compel them. See JW Opp. at 8.
They point to language in Armstrong I – the D.C. Circuit’s leading case on FRA enforcement
obligations – emphasizing that “[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 I, 924 F.2d at 295; see also CAI Opp. at 12-13.
Straightforward as this may appear, the Court does not agree. While the FRA does
require agencies to take some enforcement action, it does not require them immediately to ask
the Attorney General to file a lawsuit. For Armstrong I expressly noted that, notwithstanding the
mandatory language in the statute, the court
d[id] not mean to imply, however, that the Archivist and agency
head must initially attempt to prevent the unlawful action by seeking
the initiation of legal action. Instead, the FRA contemplates that the
agency head and Archivist may proceed first by . . . taking such
intra-agency actions as disciplining staff involved in the unlawful
action, increasing oversight by higher agency officials, or
threatening legal action.

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Id. at 296 n.12 (emphasis added). The Circuit realized that the FRA affords agency heads some
discretion in determining how to retain and protect federal records, requiring the initiation of
legal action through the Attorney General only if the agency’s own attempts to safeguard such
records are unsuccessful. Accord CREW v. SEC I, 858 F. Supp. 2d at 63 (“Armstrong
recognized that while the FRA’s remedial structure is primarily one of administrative standards
and enforcement, a limited private right of action is permitted where the administrative
mechanisms are not functioning because of inaction by those who are charged with enforcing the
FRA.”). A plaintiff’s right to compel a referral to the Attorney General, accordingly, is limited
to those circumstances in which an agency head and Archivist have taken minimal or no action
to remedy the removal or destruction of federal records. See Armstrong I, 924 F.2d at 296 (“[I]f
the agency head or Archivist does nothing while an agency official destroys or removes records
in contravention of agency guidelines and directives, private litigants may bring suit to require
the agency head and Archivist to fulfill their statutory duty to notify Congress and ask the
Attorney General to initiate legal action.”) (emphasis added).
The mere fact that federal records were removed from the State Department in
contravention of the FRA, therefore, does not automatically entitle a private litigant to a court
order requiring the agency to involve the Attorney General in legal action to recover the
documents. Where an agency is engaged in “internal remedial steps . . . in response to a loss of
records[,] . . . the Court may not substitute its discretion for that of [the agency]” because
Ҥ 3106 appears to give the agency broad discretion regarding . . . intra-agency corrective
actions.” CREW v. SEC (CREW v. SEC II), 916 F. Supp. 2d 141, 148 (D.D.C. 2013) (citation
and quotation marks omitted).

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Plaintiffs argue alternatively that the FRA permits agencies discretion to take intraagency action only to prevent the unlawful removal or destruction of federal records, but not to
recover those records; in their view, intra-agency action may stave off an FRA suit only before
records have been lost. See JW Opp. at 8. Yet they offer no authority or argument supporting
that proposition and, indeed, appear to acknowledge that it is a distinction without a difference:
“[T]he Federal Records Act . . . establish[es] a specific, non-discretionary enforcement
mechanism that requires Defendants, once they become aware that federal records have been
unlawfully removed and are unable or unwilling to recover such records, to initiate ‘action
through the Attorney General’ for the recovery of those records.” CAI Opp. at 2 (quoting §
3106) (emphasis added). Even Plaintiffs, it seems, recognize that the FRA does not require the
Attorney General’s involvement if agencies are willing and able to recover unlawfully removed
documents on their own. The Court, consequently, now considers whether the Secretary of State
and the Archivist have been “unable or unwilling” to recover emails that might be federal
records, for only then would Plaintiffs be able to allege an ongoing injury under the FRA.
As it happens, the contrary is true: Defendants have taken a number of significant
corrective steps to recover Clinton’s emails. First, on November 12, 2014, Patrick F. Kennedy,
the Under Secretary of State for Management, sent a letter to Clinton’s attorney requesting
copies of emails from her personal email account that constituted federal records, if those records
were not otherwise preserved in the Department’s recordkeeping system. See CAI Compl., Exh.
4 (Kennedy Letter to Cheryl Mills) at 1-2. In response, Clinton’s representatives provided State
with approximately 55,000 pages of responsive documents on December 5, 2014. See id., Exh. 4
(Mills Letter to Kennedy); see also JW Compl., ¶ 6.

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Three months later, NARA’s Chief Records Officer, Paul Wester, Jr., wrote to the State
Department requesting that it further explore the matter of Clinton’s email records and provide
NARA with a report on the issue. See CAI Compl., Exh. 2 (March 3, 2015, Wester Letter to
Margaret Grafeld). The Deputy Assistant Secretary for Global Information Services at the
Department, Margaret Grafeld, responded by letter, informing NARA that “[i]n December 2014,
former Secretary Clinton’s representatives provided approximately 55,000 pages of emails that
they determined to be potentially responsive to the Department’s request.” Id., Exh. 4 (April 2,
2015, Grafeld Letter to Wester).
NARA next requested that the State Department endeavor to secure “native electronic
versions” of the recovered emails, see MTD, Exh. 1 at 6-7 (July 2, 2015, Wester Letter to
Grafeld), which State had in fact already done in a letter to Clinton’s attorney, David Kendall.
See id. at 2-3 (May 22, 2015, Kennedy Letter to David Kendall). Kendall assured the State
Department that Clinton’s email servers, as well as drives containing electronic copies of the
documents she had provided to the Department, had been turned over to the FBI. See Aug. 12,
2015, Kendall Letter to Kennedy (filed as Exh. E to Aug. 12, 2015, Status Report in Judicial
Watch v. Dep’t of State, No. 13-1363 (D.D.C. Aug. 12, 2015)). The State Department then
wrote to the Director of the FBI, requesting “electronic cop[ies] of the approximately 55,000
pages identified as potential federal records and produced on behalf of former Secretary Clinton
. . . in accordance with counsel [the Department] ha[d] received from . . . NARA.” MTD, Exh. 1
at 1-2 (Sept. 14, 2015, Kennedy Letter to James Comey). In that same letter, Kennedy requested
that the FBI “apprise the Department” of “any potential federal records that may have existed”
on Clinton’s email server, should the FBI recover any such materials, and that “any recoverable

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media and content be preserved by the FBI so that [the Department] can determine how best to
proceed.” Id.
These are hardly the actions of a recalcitrant agency head or an uncooperative Archivist.
Rather, they reflect a sustained effort on the part of State and NARA, after the agencies had
learned of the potential removal of federal records from the government’s possession, to recover
and preserve all of those records. Even if their recovery actions at the time these Complaints
were filed were ineffective enough to constitute a “failure to act,” thereby providing Plaintiffs
with an injury sufficient to support standing – a matter on which the Court offers no opinion –
that is surely no longer the case. Taken together, all of the recovery efforts initiated by both
agencies up to the present day cannot in any way be described as a dereliction of duty. In light
of this, Plaintiffs cannot establish an ongoing injury actionable under the FRA; as such, their
cases are moot. See O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal
conduct does not in itself show a present case or controversy . . . if unaccompanied by any
continuing, present adverse effects.”).
Finally, should Plaintiffs subsequently become aware of other emails beyond those
already recovered, they would not be without remedy. They may bring these to the attention of
State and the Archivist, and if those entities fail to take recovery action, Plaintiffs may file a new
FRA suit. But they cannot sue to force the recovery of records that they hope or imagine might
exist. And, to the extent that Plaintiffs have identified emails not currently in State’s possession
that they believe fit this description, they have not demonstrated that the agency and the
Archivist have not taken any steps to recover them. 1

1

One encouraging point: Recent amendments to the FRA likely make this whole scenario a thing of the past. See
Presidential and Federal Records Act Amendments of 2014, Pub. L. 113-187, 128 Stat. 2003 (Nov. 26, 2014), codified
at 44 U.S.C. § 2911(a) (“An officer or employee of an executive agency may not create or send a record using a nonofficial electronic messaging account unless such officer or employee” (1) copies an official account of the officer

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C. Jurisdictional Discovery
In addition to opposing Defendants’ Motion to Dismiss, CAI has separately moved for
jurisdictional discovery, see CAI Disc. Mot. (ECF No. 14), a request that Judicial Watch
subsequently joined. See JW Disc. Mot. (ECF No. 15). In this circuit, “if a party demonstrates
that it can supplement its jurisdictional allegations through discovery, then jurisdictional
discovery is justified.” GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351
(D.C. Cir. 2000). At the same time, “[i]t is well established that the district court has broad
discretion in its resolution of [jurisdictional] discovery problems.” FC Inv. Grp. LC v. IFX
Mkts., Ltd., 529 F.3d 1087, 1093 (D.C. Cir. 2008) (internal quotation marks and citations
omitted).
Courts typically permit jurisdictional discovery where “[t]he record . . . before the court
is plainly inadequate” and the party seeking discovery “may be able to present new facts to
bolster [its] theory” regarding jurisdiction. BellSouth Corp., 199 F.3d at 1352. “[H]owever, in
order to get jurisdictional discovery a plaintiff must have at least a good faith belief that such
discovery will enable it to show that the court” enjoys jurisdiction over the suit. Caribbean
Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Furthermore,
“a plaintiff must make a ‘detailed showing of what discovery it wishes to conduct or what results
it thinks such discovery would produce.’” NBC-USA Housing, Inc., Twenty-Six v. Donovan,
774 F. Supp. 2d 277, 295 (D.D.C. 2011) (quoting Atlantigas Corp. v. Nisource, Inc., 290 F.
Supp. 2d 34, 53 (D.D.C. 2003)). Importantly, “a request for jurisdictional discovery cannot be

when sending the original message or (2) “forwards a complete copy of the record” to an official account within 20
days.).

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based on mere conjecture or speculation.” IFX Mkts., Ltd., 529 F.3d at 1094 (citing Bastin v.
Fed. Nat’l Mortgage Ass’n, 104 F.3d 1392, 1396 (D.C. Cir. 1997)).
Plaintiffs believe they are entitled to jurisdictional discovery for three reasons. They first
argue that discovery “will help establish the factual predicate for Cause of Action’s allegation
that former Secretary Clinton unlawfully removed federal records.” CAI Disc. Mot. at 9. But
Defendants expressly state that, at this stage of the proceedings, they assume without conceding
that Secretary Clinton did unlawfully remove federal records by using her personal email
account to conduct official State Department business. See ECF No. 17 (Defs. Disc. Opp.) at 3-4
(“For purpose of the motion to dismiss[,] . . . defendants have accepted all of plaintiffs’ factual
allegations as true, as well as the alleged legal premise that the records were ‘unlawfully
removed’ and thus fall within the relevant provisions of the FRA.”). So, too, does the Court;
discovery would thus add little to this factual issue.
Plaintiffs next assert that discovery will help them prove their standing at the time the
Complaints were filed. Because the Court has declined to rule on the parties’ standing
arguments, however, there is no need to consider whether discovery would bolster Plaintiffs’
position on the issue.
More to the point is Plaintiffs’ final assertion that jurisdictional discovery will aid their
demonstration that this case is not moot. See CAI Disc. Mot. at 12. The organizations note that
“Defendants have not sworn a declaration attesting to what actions they have taken or could have
taken since the filing of the complaints,” id., an observation that, while true, is unavailing in light
of the undisputed evidence – i.e., copies of relevant correspondence – that Defendants have
submitted. Plaintiffs, furthermore, struggle to describe with specificity what they expect to
discover about Defendants’ activities. They argue that “questions remain as to why the State

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Department went to the trouble of supplying Mr. Kendall with a safe to house the thumb drives
. . . ; whether and to what extent the FBI is recovering Mrs. Clinton’s work-related emails from
her server . . .; why the FBI has not delivered copies of any of these records to the State
Department; and whether the State Department is making any efforts to recover emails that may
exist on servers of back-up systems controlled by third-party commercial enterprises.” Id. at 1213. Intriguing though they may be, none of these questions provides a basis for jurisdictional
discovery. Most of them can be answered only by the FBI or “third-party commercial
enterprises” – not the State Department, from whom Plaintiffs seek discovery. Plaintiffs have
not, moreover, sufficiently explained how any of the answers to these questions, if revealed by
discovery, would undermine the sufficiency of State’s recovery actions up to this point and
thereby furnish the Court with jurisdiction. At best, the Court presumes Plaintiffs mean to argue
that if other emails exist on back-up servers, and if NARA and the State Department are doing
nothing to recover such emails, the Court could compel them to initiate legal action through the
Attorney General under the FRA. But Plaintiffs offer no good-faith belief that additional emails
do exist on back-up servers, and, if they do, that the State Department knows about them.
Jurisdictional discovery is not a vehicle Plaintiffs may use to hunt for any kernel of fact
marginally relevant to the court’s subject-matter jurisdiction, nor is it “a talisman whose mere
utterance can ward off an impending motion to dismiss.” NBC-USA Housing, 774 F. Supp. 2d
at 295; see also Bastin, 104 F.3d at 1396 (district court properly denied request for jurisdictional
discovery that “would amount to nothing more than a fishing expedition”). Instead, Plaintiffs
must persuade the Court that they have “a good faith basis” to believe facts supporting
jurisdiction exist and are likely to be found with targeted discovery. See NBC-USA Housing,

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774 F. Supp. 2d at 295. As CAI and Judicial Watch have fallen short of doing so here, the Court
will deny their Motions.
IV.

Conclusion
For the foregoing reasons, the Court will deny Plaintiffs’ Motions for Jurisdictional

Discovery and grant Defendants’ Motion to Dismiss. A contemporaneous Order to that effect
will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 11, 2016

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC,
Plaintiff,
v.

Civil Action No. 15-785 (JEB)

JOHN F. KERRY, in his official capacity as
U.S. Secretary of State,
Defendant.
------------------------------------------------------CAUSE OF ACTION INSTITUTE,
Plaintiff,
v.
Civil Action No. 15-1068 (JEB)
JOHN F. KERRY, in his official capacity as
U.S. Secretary of State, and
DAVID S. FERRIERO, in his official
capacity as U.S. Archivist,
Defendants.

ORDER
For the reasons set forth in the accompanying Memorandum Opinion, the Court
ORDERS that:
1. In Civil Action No. 15-785,
a. Plaintiff Judicial Watch’s Motion for Jurisdictional Discovery is DENIED;
b. Defendants’ Motion to Dismiss is GRANTED; and
c. The case is DISMISSED WITHOUT PREJUDICE; and

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2. In Civil Action No. 15-1068,
a. Plaintiff Cause of Action Institute’s Motion for Jurisdictional Discovery is
DENIED;
b. Defendants’ Motion to Dismiss is GRANTED; and
c. The case is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date:

January 11, 2016

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