Judicial Watch, Inc. v. John Kerry
2016 U.S. App. LEXIS 23274
| D.C. Cir. | 2016Background
- Hillary Clinton, while Secretary of State, used two private nongovernmental email accounts (a home‑server account and an earlier Blackberry account), so some work emails were not preserved in State Department recordkeeping systems.
- The State Department demanded production of work‑related emails; Clinton produced ~55,000 pages in hard copy; the FBI later took custody of the home server and a thumb drive with electronic copies of some produced emails.
- The Federal Records Act requires an agency head who learns of unlawful removal or destruction of records to notify the Archivist and, with the Archivist’s assistance, initiate action through the Attorney General; if the agency fails to act within a reasonable time, the Archivist must request the Attorney General to initiate action.
- Appellants (Judicial Watch and Cause of Action Institute) sued under the Administrative Procedure Act to compel the Secretary and the Archivist to request that the Attorney General initiate enforcement under the Federal Records Act, alleging the officials had unlawfully withheld that discrete agency action (§ 706(1)).
- The district court dismissed the suits as moot, reasoning that the Department and Archivist had taken a "sustained effort" to recover records and plaintiffs had effectively obtained recovery of many emails.
- The D.C. Circuit reversed and remanded, holding that because the Secretary and Archivist had not referred the matter to the Attorney General and the record did not show a referral would be pointless (or that the Attorney General couldn’t recover additional emails, including from the Blackberry account), the suits were not moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may sue under APA § 706(1) to compel an agency head/Archivist to seek Attorney General enforcement under the Federal Records Act | APA review is available to compel the discrete nondiscretionary duty to ask the AG to initiate enforcement when records were unlawfully removed | The agency argues its remedial efforts short of an AG referral suffice and plaintiffs lack a live controversy | Held: APA § 706(1) can be used to compel the mandated referral; the duty to seek AG action is mandatory in appropriate circumstances (per Armstrong) |
| Whether the case is moot because the Department and FBI recovered some emails and the server | Plaintiffs argue recovery so far did not provide the sole relief sought (an AG referral) and did not cover emails from the Blackberry account; thus case not moot | Defendants argue substantive recovery (server and copies) moots the suit because further relief would be pointless | Held: Not moot—recovery to date did not conclusively provide all emails the plaintiffs sought, and no record shows an AG referral would be futile |
| Whether initial agency efforts to recover records preclude judicial compulsion to refer to the Attorney General | Plaintiffs: Agencies may attempt voluntary recovery but cannot avoid mandatory referral when those efforts fail to secure all records | Defendants: Any nontrivial remedial effort means no dereliction and forecloses judicial relief | Held: Agencies may try to recover records, but failure to obtain all records does not excuse the statutory referral duty; Armstrong requires referral when appropriate |
| Whether the FBI’s custody of the home server moots claims seeking recovery of all work emails | Plaintiffs: Server custody covers only one account; complaints alleged broader relief including Blackberry emails | Defendants: Server possession likely captures the relevant materials and moots the case | Held: Server custody does not moot claims seeking emails from other accounts; plaintiffs may still obtain relief |
Key Cases Cited
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (interpreting Federal Records Act to require agency head/Archivist to seek AG enforcement when records are unlawfully removed)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (APA § 706(1) allows suit to compel discrete nondiscretionary agency action)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (no implied private right of action under the Federal Records Act)
- Conservation Force, Inc. v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013) (if plaintiff has received all requested relief, the case is moot)
- Doe v. Harris, 696 F.2d 109 (D.C. Cir. 1982) (assume plaintiffs succeed on merits when considering mootness arguments tied to relief sought)
- City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir. 2003) (standing/mootness principles)
- Noble v. Sombrotto, 525 F.3d 1230 (D.C. Cir. 2008) (plaintiff not given everything asked for means case not moot)
- Schnitzler v. United States, 761 F.3d 33 (D.C. Cir. 2014) (possession of some materials does not necessarily moot broader recovery claims)
- Boose v. D.C., 786 F.3d 1054 (D.C. Cir. 2015) (appellate court generally declines to decide merits issues in first instance)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (jurisdictional requirements must be met at each litigation stage)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard governing motions to dismiss)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requires plausible claim)
- Foman v. Davis, 371 U.S. 178 (1962) (rules governing amendment of pleadings)