Citizens for Responsibility & Ethics in Wash. v. Pruitt
319 F. Supp. 3d 252
| D.C. Cir. | 2018Background
- Plaintiffs CREW and PEER, public-interest organizations and frequent FOIA requesters, allege EPA under Administrator Scott Pruitt systematically avoided creating records of substantive decisions and discouraged note-taking and phone/email use.
- Plaintiffs contend these practices frustrated FOIA access and asked the Archivist (NARA) to investigate; NARA acknowledged contact with EPA but did not disclose any formal finding or corrective report.
- Plaintiffs sued for declaratory and injunctive relief under the APA, alleging: (Count I) EPA/Pruitt violated 44 U.S.C. § 3101 by refusing to create records; (Count II) EPA’s records-management program is inadequate under the FRA and NARA regulations; and (Count III) NARA/Archivist failed to perform duties under 44 U.S.C. § 2115.
- Defendants moved to dismiss, arguing preclusion of judicial review for some FRA claims (relying on Kissinger and Armstrong), and that Plaintiffs failed to plead a requisite Archivist finding to trigger § 2115.
- The district court denied dismissal as to Counts I and II (permitting APA review of both a practice of refusing to create records and the adequacy of agency recordkeeping guidelines) and granted dismissal as to Count III for failure to allege that the Archivist made a finding of violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA review can challenge EPA practice of refusing to create records under § 3101 | CREW/PEER: APA suits allowed to compel compliance with § 3101; judicial review necessary to protect FOIA interests | Defs: Armstrong and FRA enforcement scheme preclude judicial review of record-creation claims | Court: APA review permitted; Count I survives |
| Whether EPA’s records-management program complies with FRA/NARA regs (adequacy of guidelines) | Plaintiffs: Policy fails to require creation/maintenance of records documenting oral substantive decisions per 36 C.F.R. § 1222.22 | Defs: EPA has a sufficient policy (submitted declarations/exhibits) | Court: Policy exhibit may be considered; policy does not mention required oral-record creation; Count II survives |
| Whether NARA/Archivist failed to perform mandatory duties under § 2115 | Plaintiffs: NARA’s limited communications and lack of corrective action show failure to act as required | Defs: § 2115 obligations trigger only after Archivist finds a violation; no such finding alleged | Court: Complaint fails to allege any Archivist finding of a violation (condition precedent); Count III dismissed |
| Scope of Armstrong/Kissinger precedent: do they bar creation claims? | Plaintiffs: Armstrong permits review of programmatic recordkeeping failures and does not bar § 3101 creation claims | Defs: FRA’s enforcement structure and Armstrong foreclose private suits over recordkeeping practices | Held: Court reads Armstrong as allowing review of programmatic failures and extends that reasoning to claims about refusal to create records; such claims are reviewable under APA |
Key Cases Cited
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (private suit for unlawful removal/destruction under FRA is precluded where statute provides administrative remedy)
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (APA suits permitted to challenge adequacy of agency recordkeeping programs and failure to seek enforcement, but not discrete destruction acts)
- Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (presumption in favor of judicial review of administrative action)