Cause of Action Institute v. Kerry
Civil Action No. 2016-2145
| D.D.C. | Jan 9, 2018Background
- Cause of Action Institute sued the Secretary of State and the Archivist seeking an order requiring them to ask the Attorney General to recover Colin Powell’s work-related emails sent/received on a personal AOL account, alleging violation of the Federal Records Act (FRA) and APA.
- Plaintiff has pending FOIA requests for those emails and alleges ongoing injury from inability to access them.
- Defendants contend Powell’s AOL account was closed, Powell did not retain or print the emails, and AOL’s counsel told Congress there are no emails from Powell’s tenure—so they argue no records remain to recover.
- Plaintiff argues the FRA imposes a mandatory duty to seek DOJ assistance and that DOJ’s investigative powers could recover deleted or residual copies.
- The Court found Defendants’ investigatory efforts limited (they never contacted AOL directly) and relied on Judicial Watch precedents showing DOJ forensic investigations have recovered deleted emails.
- The Court denied the motion to dismiss, concluding Plaintiff has standing because there is a substantial likelihood that referral to the Attorney General would redress the injury by recovering at least some emails.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff has Article III standing (redressability) to compel FRA-mandated referral to the Attorney General | Referral is mandatory under the FRA and DOJ’s coercive powers make recovery likely, so redress is likely | No redress because Defendants reasonably believe no emails remain (AOL says account closed/no emails), so DOJ action would be pointless | Denied dismissal: Plaintiff showed a substantial likelihood that DOJ action could recover some emails, so redressability satisfied |
| Whether agency compliance with FRA can be avoided by limited internal efforts | FRA requires referral where records unlawfully removed; DOJ’s involvement is the intended enforcement mechanism | Agency can rely on representations (e.g., from Powell/AOL) and avoid referral if there is no reason to believe records remain | Court: Agencies’ minimal efforts here do not excuse referral; FRA contemplates DOJ "shaking the tree harder" |
| Whether hearsay representations (AOL/representative) suffice to defeat standing at 12(b)(1) stage | N/A (Plaintiff disputes sufficiency of those representations) | Agency relies on hearsay communications as basis for concluding no records remain | Court considered submitted materials but concluded even crediting them there remains substantial likelihood of redress; refused to resolve factual dispute against Plaintiff at this stage |
| Whether precedent (Judicial Watch/Armstrong) requires referral where initial efforts fail | Plaintiff relies on these cases to show mandatory referral when initial efforts fail to recover records | Defendants rely on later Judicial Watch mootness analysis where exhaustive DOJ investigation yielded no recoverable records | Court treated Judicial Watch and Armstrong as instructive: referral required when initial efforts are not exhaustive and DOJ could potentially recover deleted records |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements and redressability standard)
- Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) (plaintiff must show redress is not speculative)
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (FRA requires agency head and Archivist to seek Attorney General assistance when records are unlawfully removed)
- Judicial Watch, Inc. v. Kerry, 844 F.3d 952 (D.C. Cir. 2016) (DOJ enforcement can recover deleted/emails; agencies cannot avoid FRA referral by limited efforts)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (a court must ensure a favorable decision will remedy the plaintiff's injury)