Judicial Watch, Inc. v. John Kerry

Filing

OPINION [1652964] filed (Pages: 9) for the Court by Judge Williams. [16-5015, 16-5060, 16-5061, 16-5077]

USCA Case #16-5015

Document #1652964

Filed: 12/27/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2016

Decided December 27, 2016

No. 16-5015
JUDICIAL WATCH, INC., ET AL.,
APPELLANTS
v.
JOHN F. KERRY, IN HIS OFFICIAL CAPACITY AS U.S.
SECRETARY OF STATE, ET AL.,
APPELLEES
Consolidated with 16-5060, 16-5061, 16-5077
Appeals from the United States District Court
for the District of Columbia
(No. 1:15-cv-00785)
(No. 1:15-cv-01068)
John J. Vecchione argued the cause for appellants. With
him on the briefs were Alfred J. Lechner Jr., Daniel Z.
Epstein, R. James Valvo III, and James F. Peterson.
Daniel Tenny, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the briefs were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Matthew M. Collette.

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Before: KAVANAUGH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Secretary of State
Clinton used private email accounts during her time at the
State Department. As a result, some emails were not
preserved in government recordkeeping systems. Although
the current Secretary (with the help of the National Archivist)
has made efforts to recover those emails, neither the Secretary
nor the Archivist has asked the Attorney General to initiate
enforcement proceedings, as provided for in the Federal
Records Act. Because those officials would not refer the
matter to the Attorney General on their own, appellants
Judicial Watch and Cause of Action Institute (henceforth the
“appellants” except where a distinction is necessary) sued for
agency action unlawfully withheld in violation of § 706(1) of
the Administrative Procedure Act.
The district court
dismissed their suits as moot. Judicial Watch, Inc. v. Kerry,
156 F. Supp. 3d 69 (D.D.C. 2016). But since the current
Secretary and Archivist have neither asked the Attorney
General for help nor shown that such a request could not lead
to recovery of additional emails, the suits were not moot.
Accordingly, we reverse and remand for further proceedings.
***
The Federal Records Act “governs the creation,
management and disposal of federal records.” Armstrong v.
Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). Due to the
importance of maintaining federal records (which are
generally accessible to the public through the Freedom of
Information Act), the act strictly limits the circumstances
under which records can be removed from federal custody or

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destroyed. 44 U.S.C. § 3105(1). If the relevant agency head
becomes aware of “any actual, impending, or threatened
unlawful removal . . . or [] destruction of [agency] records,”
he or she “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 fails to “initiate an
action for such recovery or other redress within a reasonable
period of time,” “the Archivist shall request the Attorney
General to initiate such an action” and shall notify Congress
of that request. Id. § 3106(b). Although there may be
ambiguities in § 3106(a)’s mandate to “initiate action through
the Attorney General,” our decision in Armstrong made clear
that § 3106 encompasses at least a duty to “ask the Attorney
General to initiate legal action.” 924 F.2d at 295. For present
purposes that is enough, as it appears that the judicial relief
appellants now seek is an order requiring the current Secretary
and the Archivist to do just that.
After news of the former Secretary’s private accounts
broke, the State Department began taking steps to recover her
emails.
Through various letters to her counsel, the
Department asked the former Secretary to provide copies of
her work-related emails. In response to those letters, the
former Secretary produced (in hard copy) roughly 55,000
pages of emails from the private server account. And upon
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 Department also
asked the FBI to provide it with a copy of those records.
But because neither the current Secretary nor the
Archivist asked the Attorney General to initiate an
enforcement action, appellants sued to compel that request.
The district court, citing the Armstrong opinion’s statement
that private litigants may bring suit “if the agency head or

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Archivist does nothing while an agency official destroys or
removes records in contravention of agency guidelines and
directives,” 924 F.2d at 295 (emphasis added), reasoned that a
plaintiff’s ability to “compel a referral to the Attorney
General . . . 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.”
Judicial Watch, 156 F. Supp. 3d at 76. Since the State
Department and Archivist had made a “sustained effort” to
recover the missing emails, the district court concluded that
there was no “dereliction of duty” and dismissed the suits as
moot. Id. at 77. Appellants timely appealed.
***
Although the Federal Records Act does not contain an
express or implied private right of action, Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136,
148-150 (1980), the Administrative Procedure Act permits a
claim “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); 5 U.S.C. § 706(1). The recovery
provisions of the Federal Records Act fit that bill because they
“leave [the agency head and Archivist] no discretion to
determine which cases to pursue.” Armstrong, 924 F.2d at
295. While nothing in § 3106 prevents the agency from first
attempting its own remedial measures (rather than
immediately rushing to the Attorney General), id. at 296 n.12,
the statute “requires the agency head and Archivist to take
enforcement action” through the Attorney General if those
efforts are unsuccessful, id. at 295. We therefore held in
Armstrong that if “the agency head does not initiate an
enforcement action [through the Attorney General] ‘within a
reasonable period of time,’ the Archivist ‘shall request the
Attorney General to initiate such an action.’” Id. (citing
§ 3106). Armstrong involved a threatened destruction of

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records, so we framed the case in those terms, saying that, if
the agency head and the Archivist do not take the required
“action to prevent the unlawful destruction or removal of
records . . . , private litigants may sue under the APA to
require them to do so.” Id. at 296 n.12.
As the district court’s dismissal relied exclusively on its
finding of mootness, and not on a possible claim that the
“reasonable period of time” referred to in Armstrong had not
run, we focus on mootness. Where the plaintiff has recovered
all it has sought, no court action can provide further relief and
the case is moot. Conservation Force, Inc. v. Jewell, 733 F.3d
1200, 1204 (D.C. Cir. 2013). In considering possible
mootness we assume that the plaintiffs would be successful on
the merits. See Doe v. Harris, 696 F.2d 109, 114 n.7 (D.C.
Cir. 1982); see also City of Waukesha v. EPA, 320 F.3d 228,
235 (D.C. Cir. 2003) (standing). The mootness inquiry here is
straightforward. Appellants sought the only relief provided by
the Federal Records Act—an enforcement action through the
Attorney General. But nothing the Department did (either
before or after those complaints were filed) gave appellants
what they wanted. Instead of proceeding through the
Attorney General, the Department asked the former Secretary
to return her emails voluntarily and similarly requested that
the FBI share any records it obtained. Even though those
efforts bore some fruit, the Department has not 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. It is therefore abundantly clear that, in terms
of assuring government recovery of emails, appellants have
not “been given everything [they] asked for.” Noble v.
Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008). Absent a
showing that the requested enforcement action could not
shake loose a few more emails, the case is not moot.

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Of course the actions taken by the Department and the
FBI might have mooted appellants’ claims by securing
custody of all emails that the Attorney General could have
recovered in an enforcement action. After all, the FBI now
has custody of the former Secretary’s server and a thumb
drive with electronic versions of the emails that were
previously provided to the State Department in hard copy. If
appellants had only sought emails from the server account, a
mootness argument based on the recovery of the server might
well succeed. But the server and the emails it housed do not
tell the full story; Secretary Clinton used two
nongovernmental email accounts during her tenure at the State
Department. During her first weeks in office, she continued
using the Blackberry account she had used as a Senator. Only
in March of 2009 did she switch to the private email account
hosted on the server in her New York home.
The complaints here sought to ensure recovery all of the
former Secretary’s work emails, including those on the
Blackberry account. Specifically, Judicial Watch’s complaint
demanded the recovery of any emails that Secretary Clinton
“sent and received . . . to and from the personal email
accounts of State Department employees.” Judicial Watch
Compl. ¶ 6. Similarly, appellant Cause of Action Institute
sought all emails Clinton “made or received in her capacity as
Secretary of State or in connection with the transaction of
public business,” and further alleged that the Federal Records
Act did not permit her to “maintain emails on a private server
or use a private email account” under these circumstances.
Cause of Action Compl. ¶¶ 37-38. See also Cause of Action
Opp. at 21-24 & Judicial Watch Opp. at 2 for references to the
Blackberry emails in the oppositions to the motion to dismiss.
At best, the FBI’s possession of the server (plus various
electronic and hard copies of related emails) addresses only
part of those broad requests—i.e., emails from the home
server account. Because the complaints sought recovery of

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emails from all of the former Secretary’s accounts,1 the FBI’s
recovery of a server that hosted only one account does not
moot the suits. See Schnitzler v. United States, 761 F.3d 33,
37, 39 (D.C. Cir. 2014). While 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), the record here provides no
factual support for finding mootness on that basis. See Noble,
525 F.3d at 1232.
We now want to step back and explicitly consider the
district court’s reasoning. As we mentioned above, the court
relied on language relating to circumstances where the
“agency head or Archivist does nothing” while an official
unlawfully removes or destroys records. 156 F. Supp. 3d at
76 (quoting Armstrong, 924 F.2d at 295) (emphasis added).
The district court saw that language as eliminating judicial
review as soon as the agency head or Archivist took some
action to recover the missing record—here, indeed, “a
sustained effort” (id. at 77) yielding a very substantial harvest.
While the district court’s view is a plausible reading of that
sentence in Armstrong, it does not account for the rest of the
opinion. In the preceding sentence, we explained that the
entire enforcement scheme assumes that the agency head (or
Archivist) will actually refer cases to the Attorney General—
1

To the extent the Department claims that the allegations
forge too tenuous a link to the Blackberry emails to survive a
motion to dismiss, it is free to make such a motion on remand.
See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Likewise, appellants would presumably also be free to flesh
out their allegations through an amendment. See Fed. R. Civ.
P. 15(a)(2); Foman v. Davis, 371 U.S. 178 (1962).

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as the statute requires—and we said that if he does not “there
will be no effective way to prevent the destruction or removal
of records.” Armstrong, 924 F.2d at 295. That passage alone
makes clear that when records go missing, the something
required by the statute is a referral to the Attorney General by
the agency head and/or the Archivist. Indeed, the remainder
of the opinion took pains to stress that the statute “requires the
agency head and Archivist to take enforcement action”
through the Attorney General whenever they became aware of
records being unlawfully removed or destroyed. Id. And we
said that that those mandatory enforcement provisions “leave
no discretion [for the agency] to determine which cases to
pursue.” Id. While we recognized that sometimes an agency
might reasonably attempt to recover its records before running
to the Attorney General, id. at 296 n.12, we never implied that
where those initial efforts failed to recover all the missing
records (or establish their fatal loss), the agency could simply
ignore its referral duty. That reading would flip Armstrong on
its head and carve out enormous agency discretion from a
supposedly mandatory rule. Plainly we understood the statute
to rest on a belief that marshalling the law enforcement
authority of the United States was a key weapon in assuring
record preservation and recovery.
Even though the district court dismissed the case solely
on mootness grounds, the Department cross-appeals, asking us
to reach the merits and hold that it satisfied its duties under
the Federal Records Act. But, as is our general practice, we
decline that invitation and instead remand the case so that the
district court can consider the merits in the first instance
(assuming the parties do not raise and the court does not
perceive any other threshold, non-merits barrier). See Boose
v. D.C., 786 F.3d 1054, 1059 (D.C. Cir. 2015); see also Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
(jurisdictional requirements must be met at each stage of the
litigation). (Such issues of course might include mootness

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itself. At oral argument, the Department pointed to actions
that were purportedly taken after the district court decision
(some of which may still be ongoing). See Oral Arg.
Recording at 23:40-24:20, 35:41-37:37. But because the
Department made no attempt to supplement the record
regarding those actions, we have not considered them.)
As in Armstrong, we express no opinion on whether the
Attorney General’s action or inaction in response to a referral
would be reviewable. 924 F.2d at 295 n.11. Nor do we
address possible constitutional defenses that the Secretary or
Archivist might raise to the statutory command’s constraint on
their discretion; they have raised no such argument.
***
The judgment of the district court is
Reversed and remanded.

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