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Judicial Watch • JW v Kerry, Case No. 15-785

JW v Kerry, Case No. 15-785

JW v Kerry, Case No. 15-785

Page 1: JW v Kerry, Case No. 15-785

Category:Legal Document

Number of Pages:8

Date Created:May 28, 2015

Date Uploaded to the Library:May 28, 2015

Tags:Archivist, KERRY, stamped, action, AGENCY, Emails, complaint, Hillary Clinton, Secretary, defendant, filed, clinton, plaintiff, State Department, document, records, federal, FOIA, department, Washington, court


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Case 1:15-cv-00785 Document Filed 05/28/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
425 Third Street, S.W., Suite 800
Washington, 20024,
Plaintiff,
JOHN KERRY, his official capacity
U.S. Secretary State
The Executive Office
Office the Legal Adviser, Room 5519
United States Department State
2201 Street, N.W.
Washington, 20520,
Defendant.
Civil Action No.
COMPLAINT
Plaintiff Judicial Watch, Inc. brings this action against Defendant U.S. Secretary State
John Kerry compel compliance with the Federal Records Act, U.S.C. 2101 seq.,
3010 seq., and 3301 seq. FRA and the Administrative Procedure Act, U.S.C.
701, seq. APA This action challenges the failure Defendant Kerry take any action
recover emails former Secretary State Hillary Clinton and other U.S. Department State State Department employees unlawfully removed from the agency. grounds therefor,
Plaintiff alleges follows:
JURISDICTION AND VENUE
The Court has jurisdiction over this action pursuant U.S.C. 1331.
Venue proper this district pursuant U.S.C. 1391(e).
Case 1:15-cv-00785 Document Filed 05/28/15 Page
PARTIES
Plaintiff Judicial Watch, Inc. not-for-profit, educational organization
incorporated under the laws the District Columbia and headquartered 425 Third Street
S.W., Suite 800, Washington, 20024. Plaintiff seeks promote transparency,
accountability, and integrity government and fidelity the rule law. part its mission,
Plaintiff regularly requests records from federal agencies, including the State Department,
pursuant the Freedom Information Act FOIA analyzes the responses, and disseminates
its findings and the requested records the American public. During Secretary Clinton tenure,
Plaintiff submitted more than one hundred FOIA requests the State Department. Currently,
Plaintiff has least FOIA requests pending the State Department for records which likely
include emails former Secretary Clinton and other State Department employees. Plaintiff
currently litigating least nine lawsuits before this Court seeking compliance the State
Department with Plaintiff FOIA requests. See, e.g., Judicial Watch, Inc. Dep State, No.
12-2034 (D.D.C.); Judicial Watch, Inc. Dep State, No. 13-722 (D.D.C.); Judicial Watch,
Inc. Dep Defense, al., No. 14-812 (D.D.C.); Judicial Watch, Inc. Dep State, No.
14-1242 (D.D.C.); Judicial Watch, Inc. Dep State, No. 14-1511 (D.D.C.); Judicial Watch,
Inc. Dep State, No. 15-321 (D.D.C.); Judicial Watch, Inc. Dep State, No. 15-684
(D.D.C.); Judicial Watch, Inc. Dep State, No. 15-687 (D.D.C.); Judicial Watch, Inc.
Dep State, No. 15-692 (D.D.C.).
Defendant John Kerry U.S. Secretary State and has his principal place
business the U.S. Department State, 2201 Street N.W., Washington, 20520.
Defendant Kerry being sued his official capacity.
Case 1:15-cv-00785 Document Filed 05/28/15 Page
STATEMENT FACTS about March 2015, the New York Times reported that Secretary Clinton
used least one non- state.gov email account conduct official government business while
serving U.S. Secretary State. See Michael Schmidt, Hillary Clinton Used Personal
Email Account State Dept., Possibly Breaking Rules, The New York Times, Mar. 2015,
available http://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-of-privateemail-at-state-department-raises-flags.html. also reported that Secretary Clinton stored these
emails server her home Chappaqua, New York.
According this and other reports, sometime 2014, Secretary Clinton
unilaterally determined which her emails were official government records and, December
2014, returned least portion these public records many 55,000 pages records the State Department. Other high level State Department officials also reportedly used non state.gov email accounts conduct official government business. See Amy Chozick and
Steve Eder, Membership Clinton Email Domain Remembered Mark Status, The
New York Times, Mar. 2015, available http://www.nytimes.com/2015/03/05/us/politics/membership-in-clintons-email-domain-is-remembered-as-a-mark-of-status.html. According
this and other media reports, Secretary Clinton sent and received emails and from the personal
email accounts State Department employees, including chief staff Cheryl Mills, adviser
Philippe Reines, personal aide Huma Abedin, and adviser Jake Sullivan. Collectively, these
emails shall referred the Clinton emails.
The Clinton emails are agency records subject the FRA and the State
Department failure retain, manage, and search these agency records has compromised the
Case 1:15-cv-00785 Document Filed 05/28/15 Page
State Department retention records that concern relate Secretary Clinton and other high
level State Department officials who used non- state.gov email addresses.
Upon information and belief, the Clinton emails were not copied otherwise
placed official email accounts the State Department.
Upon information and belief, copies the Clinton emails, other than those
already returned Secretary Clinton, are the physical custody the State Department.
STATUTORY BACKGROUND
10.
The FRA collection statutes governing the creation, management, and
disposal records federal agencies. U.S.C. 2101-18, 2901-09, 3101-07, and 3301-14.
11.
These statutes establish unified system for handling the life cycle federal
records covering their creation, maintenance and use, and eventually their disposal either
destruction deposit for preservation. American Friends Serv. Comm. Webster, 720 F.2d
29, (D.C. Cir. 1983).
12.
The FRA reflects congressional intent ensure that agencies adequately
document their policies and decisions, and that their records management programs strike
balance between developing efficient and effective records management, and the substantive
need for Federal records. Armstrong Bush, 924 F.2d 282, 292 (D.C. Cir. 1991) (quoting
Rep. No. 94-1326, 94th Cong., Sess. (1976), reprinted 1976 U.S. Code Cong. Admin.
News 6150, 6150-51). See also U.S.C. 2902 (enumerating the seven goals the FRA).
13.
Under the FRA, records refers any recorded information made received Federal agency under Federal law connection with the transaction public business
and preserved appropriate for preservation that agency evidence the organization,
Case 1:15-cv-00785 Document Filed 05/28/15 Page
functions, policies, decisions, procedures, operations, other activities the Government
because the informational value them. U.S.C. 3301(a)(1)(A).
14.
Under the FRA, agency heads are required make and preserve records
containing adequate and proper documentation the organization, functions, policies, decisions,
procedures, and essential transactions the agency[.] U.S.C. 3101.
15.
Agencies may only dispose records terms approved the Archivist the
United States, who head the National Archives and Records Administration NARA
U.S.C. 3303; C.F.R. 1225.10. This process the exclusive procedure which all
federal records may disposed destroyed. U.S.C. 3314.
16.
The FRA imposes direct responsibility agency head take steps
recover any records unlawfully removed. Specifically, agency head learns any actual,
impending, threatened unlawful removal, defacing, alteration, corruption, deletion, erasure,
other destruction records the custody the agency, she must notify the Archivist. U.S.C. 3106. the agency head knows has reason believe [that records] have been
unlawfully removed from [his her] agency, then the agency head with the assistance the
Archivist shall initiate action through the Attorney General for the recovery records [.] Id.
the agency head does not initiate action for such recovery other redress within
reasonable period time, then the Archivist shall request the Attorney General initiate such action, and shall notify the Congress when such request has been made. Id.
17. April 30, 2015, Plaintiff sent letter Defendant Kerry notifying him the
unlawful removal the Clinton emails and requesting that initiate enforcement action
pursuant the FRA.
Case 1:15-cv-00785 Document Filed 05/28/15 Page
18.
Upon information and belief, despite knowledge the removal the Clinton
emails, Defendant Kerry has failed notify the Archivist concerning the unlawful removal
the Clinton emails request that the attorney general initiate enforcement action recover
the Clinton emails.
19. light Defendant Kerry failure take action recover the Clinton
emails, Plaintiff private litigant entitled bring action compel compliance with the
law. Armstrong Bush, 924 F.2d 296 [I]f the agency head Archivist does nothing while agency official destroys removes records contravention agency guidelines and
directives, private litigants may bring suit require the agency head and Archivist fulfill their
statutory duty notify Congress and ask the Attorney General initiate legal action.
COUNT
(Administrative Procedure Act, U.S.C. 701, seq.
for declaratory and injunctive relief)
20.
Plaintiff realleges paragraphs through fully stated herein.
21.
Under the FRA, the head federal agency must notify the Archivist any
removal records from the agency which the head that shall come the agency head
attention and, with the assistance the Archivist, must initiate action through the attorney
general for the recovery those records. U.S.C. 3106.
22.
The Clinton emails are records subject the FRA.
23.
The Clinton emails have been removed from the State Department.
24.
Defendant Kerry has actual and constructive knowledge the removal the
Clinton emails from the State Department.
25.
Defendant Kerry has violated his duty under U.S.C. 3106 failing
Case 1:15-cv-00785 Document Filed 05/28/15 Page notify the Archivist concerning the unlawful removal the Clinton emails and failing
initiate action through the attorney general recover the Clinton emails.
26.
Defendant Kerry failure notify the Archivist concerning the unlawful removal the Clinton emails and failure initiate action through the attorney general recover the
Clinton emails constitutes final agency action for which there other adequate remedy
court law.
27.
Defendant Kerry failure notify the Archivist concerning the unlawful removal the Clinton emails and failure initiate action through the attorney general recover the
Clinton emails was arbitrary, capricious, abuse discretion, and otherwise not accordance
with the FRA.
28.
Plaintiff being irreparably harmed reason Defendant Kerry failure
take any action recover the Clinton emails, Plaintiff, with numerous pending FOIA requests the State Department, being prevented from accessing responsive Clinton emails.
29.
Plaintiff will continue irreparably harmed unless and until Defendant Kerry
notifies the Archivist concerning the unlawful removal the Clinton emails and initiates action
through the attorney general recover the Clinton emails and otherwise conform his conduct
the requirements the law.
WHEREFORE, Plaintiff respectfully requests that the Court: (1) declare the Clinton
emails records subject the FRA; (2) declare Defendant Kerry failure take any action recover the Clinton emails arbitrary, capricious, abuse discretion, and otherwise not
accordance with the FRA; (3) order Defendant Kerry take action recover the Clinton emails accordance with the FRA; (4) grant Plaintiff award attorneys fees and other litigation
Case 1:15-cv-00785 Document Filed 05/28/15 Page
costs reasonably incurred this action; and (5) grant Plaintiff such other relief the Court
deems just and proper.
Dated: May 28, 2015
Respectfully submitted,
/s/ James Peterson
James Peterson (D.C. Bar No. 450171)
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff