Judicial Watch, Inc. v. Kerry
Civil Action No. 2015-0785
| D.D.C. | Nov 9, 2017Background
- Hillary Clinton used private email accounts/domains (a Blackberry account early 2009 and clintonemail.com) and private servers (Pagliano and later PRN) while Secretary of State; some emails were not preserved in State Department systems.
- Judicial Watch and Cause of Action sued under the Federal Records Act (FRA), seeking an order requiring the Secretary and Archivist to initiate action through the Attorney General to recover missing Clinton emails.
- District Court initially dismissed as moot after State and NARA recovered ~55,000 pages and the FBI was investigating; D.C. Circuit reversed, holding mootness requires either recovery of all emails or a showing of "fatal loss," and instructed agencies must involve the Attorney General if initial efforts fail.
- On remand the government supplemented the record with extensive FBI investigative steps (server seizures, forensic searches, subpoenas to service providers, device recoveries, interviews) and declarations asserting no further reasonable steps could recover more work-related emails (particularly Blackberry-era Jan–Mar 2009 emails).
- The court evaluated whether (1) the missing emails remained potentially recoverable such that referral to the Attorney General could yield more and (2) jurisdictional discovery was warranted; it concluded the FBI had exhausted all reasonable avenues and the suit was therefore moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FRA requires agency to refer to AG now or only after exhausting other efforts | FRA mandates referral because records were unlawfully removed and may still be recoverable | Agencies and NARA say they used extensive intra‑agency and law‑enforcement means and no recoverable records remain, so no AG referral is necessary | Court: Agencies and FBI exhausted reasonable avenues; referral would not recover more — FRA claim is moot |
| Whether case is moot | Plaintiffs say Blackberry-era emails remain missing and recoverable; relief (AG action) could yield more emails | Defendants show recovery of servers/emails and FBI declarations that no further reasonable steps remain to recover missing emails | Court: Case is moot because government secured custody of all emails AG could have recovered or established fatal loss |
| Whether Plaintiffs may obtain jurisdictional discovery to challenge government assertions | Plaintiffs seek discovery into scope of subpoenas, iMac search, device searches to show jurisdiction remains | Defendants supplemented record with detailed declarations and search descriptions; discovery unnecessary and speculative | Court: Denied jurisdictional discovery — plaintiffs failed to show good‑faith basis that discovery would establish jurisdiction |
| Admissibility/reliability of FBI affidavit (Priestap) | Plaintiffs attack as unreliable/expert testimony or hearsay | Government: Priestap supervised investigation and provided factual, firsthand declarations appropriate for this context | Court: Priestap's declarations are relevant and reliable; court may rely on agency affidavits in sole‑possession contexts |
Key Cases Cited
- Public Citizen v. Carlin, 184 F.3d 900 (1999) (describes FRA as governing creation, management, disposal of federal records)
- Judicial Watch, Inc. v. Kerry, 844 F.3d 952 (2016) (reversed dismissal; instructs case is not moot unless agencies recover all records the Attorney General could have obtained or establish their fatal loss)
- DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) (plaintiff bears burden to demonstrate subject‑matter jurisdiction)