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Judicial Watch • JW v State Kerry Pompeo preservation 17-5275

JW v State Kerry Pompeo preservation 17-5275

JW v State Kerry Pompeo preservation 17-5275

Page 1: JW v State Kerry Pompeo preservation 17-5275

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Number of Pages:10

Date Created:August 24, 2018

Date Uploaded to the Library:October 15, 2018

Tags:Pompeo, 5275, ARGUMENT, KERRY, certificate, preservation, peterson, table, Attorney, Secretary, clinton, defendant, State Department, plaintiff, FBI, records, James, department, IRS


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ORAL ARGUMENT SCHEDULED FOR OCTOBER 18, 2018] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 17-5275
_________
JUDICIAL WATCH, INC.
PLAINTIFF-APPELLANT,
MICHAEL POMPEO HIS OFFICIAL CAPACITY
DEFENDANT-APPELLEE.
__________ Appeal from the United States District Court
for the District Columbia
__________
REPLY BRIEF APPELLANT JUDICIAL WATCH, INC.
__________
James Peterson
JUDICIAL WATCH, INC.
Counsel for Plaintiff-Appellant
TABLE CONTENTS
TABLE AUTHORITIES ....................................................................................
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT .............................................................................................................1
This Case Not Moot Defendant
Has Not Met His Burden ............................................................................2
II.
Plaintiff Seeks the Exact Relief Which Entitled .............................
CONCLUSION ..........................................................................................................4
CERTIFICATE COMPLIANCE .........................................................................
TABLE AUTHORITIES
PAGE
CASES
Armstrong Bush,
924 F.2d 282 (D.C. Cir. 1991) ........................................................................
Haftlang INS,
790 F.2d 140, 144 (D.C. Cir. 1986) ................................................................ Judicial Watch, Inc. Kerry,
844 F.3d 952 (D.C. Cir. 2016).....................................................................3,
True the Vote, Inc. IRS,
831 F.3d 551 (D.C. Cir. 2016) ........................................................................
STATUTES U.S.C. 3106 ..................................................................................................3, Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
SUMMARY THE ARGUMENT its opening brief and before the district court, Plaintiff demonstrated this
case not moot there are still records unrecovered and more places look.
Defendant has not asked the Attorney General for help locating these yet
unrecovered records, the district court dismissal this case moot should
reversed and the case remanded for further proceedings.
ARGUMENT initial matter, important recall that this case arises from mess the State Department own making. The State Department was fully aware
throughout Secretary Clinton tenure that she was using private email system.
Then, the end her tenure, the State Department allowed four years federal
records walk out the door with Secretary Clinton. Only belatedly did the State
Department ask Secretary Clinton return those records. Yet undisputed that
not all emails have been returned. All the efforts that have been made and
remain made are necessary because the State Department failure
preserve federal records was required do. And because the State
Department still has not recovered all the records, referral the Attorney
General necessary.
The Case Not Moot Defendant Has Not Met His Burden.
Defendant never claims that all unlawfully removed records have been
recovered. See generally Def Br. This undisputed fact, together with the
possibility that additional emails might recoverable, means that this case again not moot. this Court has observed, case cannot dismissed even
nearly moot. True the Vote, Inc. IRS, 831 F.3d 551, 561 (D.C. Cir. 2016).
Defendant dismisses speculative the likelihood that records could
recovered from third parties who corresponded with Secretary Clinton.
demonstrated Plaintiff opening brief, the record best unclear what
extent the FBI pursued senders/recipients sources recoverable emails.
Defendant does not dispute that the FBI never explained who contacted, who the
FBI actually talked to, who the FBI requested records from, who actually provided
records, and whether the FBI believes those that they requested records from
actually returned all the requested records. Instead, Defendant relies
entirely conclusory and self-serving statement from the FBI that further steps
would recover additional records. Haftlang INS, 790 F.2d 140, 144 (D.C. Cir.
1986) (holding conclusory evidence insufficient establish prima facie case). fact, Defendant specifically rejects the possibility seeking emails from
one Secretary Clinton most frequent email correspondents, former British
prime minister Tony Blair. Def Br. 17. This would seem confirm,
however, that effort has been made recover emails from least Mr. Blair.
so, least one potential source unrecovered records that the Attorney
General could explore. And, identified Plaintiff, numerous other
correspondents could sources unrecovered records. any event, conclusory statements the FBI are not sufficient evidence
for Defendant meet his burden. This especially light the specific
evidence provided Plaintiff. This case not moot.
II.
Plaintiff Seeks the Exact Relief Which Entitled.
Defendant argues, previously did before this Court, that the relief
Plaintiff seeks not available. Def Br. 13-18; cf. Br. for Appellees/CrossAppellants, USCA Case #16-5015, Document #1629720, filed August 10, 2016,
18. Defendant again claims that Plaintiff seeks judicial supervision the
government recovery efforts. they were before, these arguments are
unavailing.
Plaintiff does not seek judicial supervision the government recovery
efforts. Instead, Plaintiff seeks court order directing Defendant comply with
his non-discretionary statutory obligations initiate action through the Attorney
General for the recovery unlawfully removed records. this Court previously
stated this case:
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. (Judicial Watch, Inc. Kerry, 844 F.3d 952 (citing Armstrong Bush, 924
F.2d 282, 295 (D.C. Cir. 1991)). before, the only issue here whether Defendant must approach the
Attorney General and seek his assistance retrieving federal records that have
been unlawfully removed from the State Department. The Federal Records Act
requires him so. Because has not done so, Plaintiff has the right judicial
review that failure and court order requiring Defendant compliance.
Defendant attempt relitigate this issue should rejected.
CONCLUSION
Until Defendant proves through non-conclusory evidence that more
records are recoverable, this case not moot. Nor should case dismissed
because nearly moot. True the Vote, Inc., 831 F.3d 561. Defendant must held his duty under the FRA other agencies may again, like the State
Department, recklessly and unlawfully disregard their duties under the law.
Dated: August 24, 2018
Respectfully submitted,
/s/ James Peterson
James Peterson
JUDICIAL WATCH, INC.
Counsel for Plaintiff-Appellant
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 1,177 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ James Peterson
CERTIFICATE SERVICE hereby certify that this 24th day August 2018, filed via the CM/ECF
system the foregoing REPLY BRIEF APPELLANT JUDICIAL WATCH,
INC. with the Clerk the Court. Participants the case are registered CM/ECF
users and service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court
via hand delivery.
/s/ James Peterson