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Judicial Watch • JW v Kerry Appeal Victory 16-5015

JW v Kerry Appeal Victory 16-5015

JW v Kerry Appeal Victory 16-5015

Page 1: JW v Kerry Appeal Victory 16-5015


Number of Pages:9

Date Created:December 22, 2016

Date Uploaded to the Library:December 27, 2016

Tags:5015, Archivist, KERRY, Victory, ARMSTRONG, action, appeal, AGENCY, Attorney, Circuit, Emails, Secretary, clinton, federal, State Department, records, FBI, department, states, united, EPA

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United States Court Appeals
Argued November 2016
Decided December 27, 2016
No. 16-5015
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, 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
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.