JW v Kerry Appeal Victory 16-5015
Number of Pages:9
Date Created:December 22, 2016
Date Uploaded to the Library:December 27, 2016
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United States Court Appeals FOR THE DISTRICT COLUMBIA CIRCUIT Argued November 2016 Decided December 27, 2016 No. 16-5015 JUDICIAL WATCH, INC., AL., APPELLANTS JOHN KERRY, HIS OFFICIAL CAPACITY U.S. SECRETARY STATE, AL., APPELLEES Consolidated with 16-5060, 16-5061, 16-5077 Appeals from the United States District Court for the District Columbia (No. 1:15-cv-00785) (No. 1:15-cv-01068) John Vecchione argued the cause for appellants. With him the briefs were Alfred Lechner Jr., Daniel Epstein, James Valvo III, and James Peterson. Daniel Tenny, Attorney, U.S. Department Justice, argued the cause for appellees. With him the briefs were Benjamin Mizer, Principal Deputy Assistant Attorney General, and Matthew Collette. Before: KAVANAUGH and WILKINS, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed Senior Circuit Judge WILLIAMS. WILLIAMS, Senior Circuit Judge: Secretary State Clinton used private email accounts during her time the State Department. result, some emails were not preserved government recordkeeping systems. Although the current Secretary (with the help the National Archivist) has made efforts recover those emails, neither the Secretary nor the Archivist has asked the Attorney General initiate enforcement proceedings, provided for the Federal Records Act. Because those officials would not refer the matter the Attorney General their own, appellants Judicial Watch and Cause Action Institute (henceforth the appellants except where distinction necessary) sued for agency action unlawfully withheld violation 706(1) the Administrative Procedure Act. The district court dismissed their suits moot. Judicial Watch, Inc. Kerry, 156 Supp. (D.D.C. 2016). But since the current Secretary and Archivist have neither asked the Attorney General for help nor shown that such request could not lead recovery additional emails, the suits were not moot. Accordingly, reverse and remand for further proceedings. *** The Federal Records Act governs the creation, management and disposal federal records. Armstrong Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). Due the importance maintaining federal records (which are generally accessible the public through the Freedom Information Act), the act strictly limits the circumstances under which records can removed from federal custody destroyed. U.S.C. 3105(1). the relevant agency head becomes aware any actual, impending, threatened unlawful removal destruction [agency] records, she shall notify the Archivist and with the assistance the Archivist shall initiate action through the Attorney General for the recovery [those] records. U.S.C. 3106(a). the agency head fails initiate action for such recovery other redress within reasonable period time, the Archivist shall request the Attorney General initiate such action and shall notify Congress that request. Id. 3106(b). Although there may ambiguities 3106(a) mandate initiate action through the Attorney General, our decision Armstrong made clear that 3106 encompasses least duty ask the Attorney General initiate legal action. 924 F.2d 295. For present purposes that enough, appears that the judicial relief appellants now seek order requiring the current Secretary and the Archivist just that. After news the former Secretary private accounts broke, the State Department began taking steps recover her emails. Through various letters her counsel, the Department asked the former Secretary provide copies her work-related emails. response those letters, the former Secretary produced (in hard copy) roughly 55,000 pages emails from the private server account. And upon learning that the FBI had taken custody Clinton private server and thumb drive containing electronic copies the emails she had previously produced, the Department also asked the FBI provide with copy those records. But because neither the current Secretary nor the Archivist asked the Attorney General initiate enforcement action, appellants sued compel that request. The district court, citing the Armstrong opinion statement that private litigants may bring suit the agency head Archivist does nothing while agency official destroys removes records contravention agency guidelines and directives, 924 F.2d 295 (emphasis added), reasoned that plaintiff ability compel referral the Attorney General limited those circumstances which agency head and Archivist have taken minimal action remedy the removal destruction federal records. Judicial Watch, 156 Supp. 76. Since the State Department and Archivist had made sustained effort recover the missing emails, the district court concluded that there was dereliction duty and dismissed the suits moot. Id. 77. Appellants timely appealed. *** Although the Federal Records Act does not contain express implied private right action, Kissinger Reporters Comm. for Freedom the Press, 445 U.S. 136, 148-150 (1980), the Administrative Procedure Act permits claim that agency failed take discrete agency action that required take. Norton Utah Wilderness All., 542 U.S. 55, (2004); U.S.C. 706(1). The recovery provisions the Federal Records Act fit that bill because they leave [the agency head and Archivist] discretion determine which cases pursue. Armstrong, 924 F.2d 295. While nothing 3106 prevents the agency from first attempting its own remedial measures (rather than immediately rushing the Attorney General), id. 296 n.12, the statute requires the agency head and Archivist take enforcement action through the Attorney General those efforts are unsuccessful, id. 295. therefore held Armstrong that the agency head does not initiate enforcement action [through the Attorney General] within reasonable period time, the Archivist shall request the Attorney General initiate such action. Id. (citing 3106). Armstrong involved threatened destruction records, framed the case those terms, saying that, the agency head and the Archivist not take the required action prevent the unlawful destruction removal records private litigants may sue under the APA require them so. Id. 296 n.12. the district court dismissal relied exclusively its finding mootness, and not possible claim that the reasonable period time referred Armstrong had not run, focus mootness. Where the plaintiff has recovered all has sought, court action can provide further relief and the case moot. Conservation Force, Inc. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013). considering possible mootness assume that the plaintiffs would successful the merits. See Doe Harris, 696 F.2d 109, 114 n.7 (D.C. Cir. 1982); see also City Waukesha EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (standing). The mootness inquiry here straightforward. Appellants sought the only relief provided the Federal Records Act enforcement action through the Attorney General. But nothing the Department did (either before after those complaints were filed) gave appellants what they wanted. Instead proceeding through the Attorney General, the Department asked the former Secretary return her emails voluntarily and similarly requested that the FBI share any records obtained. Even though those efforts bore some fruit, the Department has not explained why shaking the tree harder e.g., following the statutory mandate seek action the Attorney General might not bear more still. therefore abundantly clear that, terms assuring government recovery emails, appellants have not been given everything [they] asked for. Noble Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008). Absent showing that the requested enforcement action could not shake loose few more emails, the case not moot. course the actions taken the Department and the FBI might have mooted appellants claims securing custody all emails that the Attorney General could have recovered enforcement action. After all, the FBI now has custody the former Secretary server and thumb drive with electronic versions the emails that were previously provided the State Department hard copy. appellants had only sought emails from the server account, mootness argument based the recovery the server might well succeed. But the server and the emails housed not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure the State Department. During her first weeks office, she continued using the Blackberry account she had used Senator. Only March 2009 did she switch the private email account hosted the server her New York home. The complaints here sought ensure recovery all the former Secretary work emails, including those the Blackberry account. Specifically, Judicial Watch complaint demanded the recovery any emails that Secretary Clinton sent and received and from the personal email accounts State Department employees. Judicial Watch Compl. Similarly, appellant Cause Action Institute sought all emails Clinton made received her capacity Secretary State connection with the transaction public business, and further alleged that the Federal Records Act did not permit her maintain emails private server use private email account under these circumstances. Cause Action Compl. 37-38. See also Cause Action Opp. 21-24 Judicial Watch Opp. for references the Blackberry emails the oppositions the motion dismiss. best, the FBI possession the server (plus various electronic and hard copies related emails) addresses only part those broad requests i.e., emails from the home server account. Because the complaints sought recovery emails from all the former Secretary accounts,1 the FBI recovery server that hosted only one account does not moot the suits. See Schnitzler United States, 761 F.3d 33, 37, (D.C. Cir. 2014). While the case might well also moot referral were pointless (e.g., because imaginable enforcement action the Attorney General could lead recovery the missing emails), the record here provides factual support for finding mootness that basis. See Noble, 525 F.3d 1232. now want step back and explicitly consider the district court reasoning. mentioned above, the court relied language relating circumstances where the agency head Archivist does nothing while official unlawfully removes destroys records. 156 Supp. (quoting Armstrong, 924 F.2d 295) (emphasis added). The district court saw that language eliminating judicial review soon the agency head Archivist took some action recover the missing record here, indeed, sustained effort (id. 77) yielding very substantial harvest. While the district court view plausible reading that sentence Armstrong, does not account for the rest the opinion. the preceding sentence, explained that the entire enforcement scheme assumes that the agency head (or Archivist) will actually refer cases the Attorney General the extent the Department claims that the allegations forge too tenuous link the Blackberry emails survive motion dismiss, free make such motion remand. See Fed. Civ. 12(b)(6); Ashcroft Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. Twombly, 550 U.S. 544 (2007). Likewise, appellants would presumably also free flesh out their allegations through amendment. See Fed. Civ. 15(a)(2); Foman Davis, 371 U.S. 178 (1962). the statute requires and said that does not there will effective way prevent the destruction removal records. Armstrong, 924 F.2d 295. That passage alone makes clear that when records missing, the something required the statute referral the Attorney General the agency head and/or the Archivist. Indeed, the remainder the opinion took pains stress that the statute requires the agency head and Archivist take enforcement action through the Attorney General whenever they became aware records being unlawfully removed destroyed. Id. And said that that those mandatory enforcement provisions leave discretion [for the agency] determine which cases pursue. Id. While recognized that sometimes agency might reasonably attempt recover its records before running the Attorney General, id. 296 n.12, never implied that where those initial efforts failed recover all the missing records (or establish their fatal loss), the agency could simply ignore its referral duty. That reading would flip Armstrong its head and carve out enormous agency discretion from supposedly mandatory rule. Plainly understood the statute rest belief that marshalling the law enforcement authority the United States was key weapon assuring record preservation and recovery. Even though the district court dismissed the case solely mootness grounds, the Department cross-appeals, asking reach the merits and hold that satisfied its duties under the Federal Records Act. But, our general practice, decline that invitation and instead remand the case that the district court can consider the merits the first instance (assuming the parties not raise and the court does not perceive any other threshold, non-merits barrier). See Boose D.C., 786 F.3d 1054, 1059 (D.C. Cir. 2015); see also Lujan Defenders Wildlife, 504 U.S. 555, 561 (1992) (jurisdictional requirements must met each stage the litigation). (Such issues course might include mootness itself. oral argument, the Department pointed actions that were purportedly taken after the district court decision (some which may still ongoing). See Oral Arg. Recording 23:40-24:20, 35:41-37:37. But because the Department made attempt supplement the record regarding those actions, have not considered them.) Armstrong, express opinion whether the Attorney General action inaction response referral would reviewable. 924 F.2d 295 n.11. Nor address possible constitutional defenses that the Secretary Archivist might raise the statutory command constraint their discretion; they have raised such argument. *** The judgment the district court Reversed and remanded.