CAUSE OF ACTION INSTITUTE v. KERRY, 319 F.Supp.3d 230

Cause of Action Institute sought FOIA access to work-related emails Colin Powell sent/received on a personal AOL account; those emails are federal records under the Federal Records Act.
Defendants (Secretary of State and the Archivist) had not referred the matter to the Attorney General to recover allegedly unlawfully removed records; plaintiff sued to compel referral under the Federal Records Act and APA.
After initial litigation, the State Department obtained a sworn statement from Powell denying access to the emails or related devices and giving permission to request his AOL data.
The AOL successor (Oath Inc.) searched all its mail storage databases (active and short-term/closed account storage) and wrote that no relevant email content exists and that it is not technologically possible to recover the data.
The Government moved to dismiss as moot (or for summary judgment), arguing the records are fatally lost; Cause of Action argued further action (e.g., forensic search of Oath’s physical servers) could recover some emails.
The court concluded the Government carried its burden to show fatal loss (Powell’s sworn statement + Oath’s unrecoverability conclusion) and dismissed the case as moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the case is moot given alleged loss of records	Referral to AG could enable recovery (forensic server search might find emails)	Records are fatally lost; Powell lacks access; Oath searched and recovery is technologically impossible	Moot: Government met burden; speculative that AG referral would recover emails
Whether defendants must initiate AG action under 44 U.S.C. § 3106	Agency/Archivist still must refer because records unlawfully removed	No duty to refer if records are unrecoverable; referral would be futile	No relief: referral would be speculative and unlikely to redress injury
Adequacy of government search efforts	Government’s searches were insufficiently explained; must show why forensic search of provider servers would fail	State obtained Powell’s sworn statement and Oath’s detailed explanation of storage/retention and inability to recover	Court credited Powell and Oath; forensic search of provider servers is a wild-goose chase, speculative
Standard for mootness vs. standing here	Plaintiff relied on earlier standard that substantial likelihood of redress existed	Government must demonstrate "fatal loss" of records to establish mootness	Government satisfied the fatal-loss standard; case dismissed as moot

Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (private litigant may sue to compel agency to comply with federal records statute)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury-in-fact, causation, redressability)
Judicial Watch, Inc. v. Kerry, 844 F.3d 952 (D.C. Cir. 2016) (government must show requested enforcement could not recover records to establish mootness)
Judicial Watch, Inc. v. Tillerson, 293 F. Supp. 3d 33 (D.D.C. 2017) (discussion of forensic searches and limits of recovery efforts)
Conservation Force, Inc. v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013) (case-mootness overview where controversy no longer live)
Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998) (party raising mootness bears the burden of proof)
Shaw v. Marriott Int’l, Inc., 605 F.3d 1039 (D.C. Cir. 2010) (recitation of Article III standing elements)