67 F. Supp. 3d 23
D.D.C.2014Background
- Competitive Enterprise Institute (CEI) submitted FOIA requests for text messages sent/received on EPA-issued phones by senior officials (Gina McCarthy, Lisa Jackson); EPA responded "no records," citing that texts were not necessarily federal records.
- EPA-produced metadata showed thousands of texts (e.g., ~5,392 texts for McCarthy across billing periods), prompting CEI to allege agency-wide destruction/nonpreservation of potentially record-worthy texts.
- CEI sued seeking declaratory and injunctive relief (that EPA must preserve text messages), a writ of mandamus compelling preservation/notification under the Federal Records Act (FRA), and related relief; EPA moved to dismiss.
- CEI alleged FRA violations (failure to preserve and to notify the Archivist/AG), APA claims (agency action arbitrary/capricious and failure to comply with FRA enforcement), and FOIA-based harms; CEI later abandoned FOIA claims.
- The district court dismissed CEI’s FRA claims and APA claims that sought review of EPA’s individual disposal decisions or alleged unstated retention policies, but allowed (1) an APA claim challenging EPA’s failure to notify the Archivist/AG under FRA’s enforcement scheme and (2) CEI’s request for mandamus-type relief to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FRA supplies a private right of action to challenge EPA’s destruction of texts | CEI: FRA requires preservation and notification; EPA’s alleged failure can be litigated by private parties | EPA: Kissinger holds FRA provides no private right of action; enforcement is administrative | Held: Dismissed — FRA contains no private cause of action (Kissinger controlling) |
| Whether APA review extends to alleged unstated/de facto EPA policy permitting wholesale nonpreservation of texts | CEI: EPA’s public policy cannot explain destruction of thousands of texts; court may review an unstated policy as APA reviewable agency action | EPA: CEI is effectively asking court to review individual disposal decisions, which FRA reserves for agency/Archivist; APA cannot be used to circumvent Kissinger/Armstrong limits | Held: Dismissed — claims that amount to review of specific disposal decisions or an unproven secret policy are not APA-reviewable |
| Whether APA permits review of agency head’s failure to notify Archivist/AG under FRA enforcement provisions | CEI: Administrators knew of mass deletions and thus had nondiscretionary duty to notify Archivist/AG; failure to act is reviewable under APA | EPA: Not all texts are records; allegations do not plausibly show a nondiscretionary duty to notify | Held: Allowed to proceed — Armstrong permits APA review of an agency head’s refusal to seek enforcement under FRA; CEI alleged facts sufficient at pleading stage |
| Whether mandamus relief is available to compel EPA to preserve texts/comply with FRA | CEI: Mandamus (or mandamus-type relief) is appropriate because EPA has a statutory duty and CEI has no other adequate remedy | EPA: Mandamus is extraordinary; CEI lacks the clear and indisputable right needed | Held: Allowed to proceed — court denies dismissal of mandamus request; availability to be determined on the merits |
Key Cases Cited
- Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (Sup. Ct. 1980) (FRA provides no private right of action; FOIA does not require creation or retention of records)
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (distinguishes APA reviewable agency recordkeeping guidelines from nonreviewable individual disposal decisions; permits review of refusal to seek enforcement under FRA)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (Sup. Ct. 2007) (pleading must state a plausible claim to survive dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (Sup. Ct. 2009) (court need not accept legal conclusions; factual plausibility required)
- In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) (mandamus relief is an extraordinary remedy; strict standards govern jurisdiction)