Just under a year ago, two government-watchdog groups filed suit accusing Scott Pruitt, who was then leading the Environmental Protection Agency, of deliberately setting up a system to skirt federal-records laws. Since then, the landscape at EPA has changed. As even a casual reader of the news will know, Pruitt is no longer at the Agency's helm. Perhaps less well known, but equally significant for this matter, EPA created and distributed a revised records-management policy that responds to some of the shortcomings pointed out by this suit. These developments offer good news and bad news for Plaintiffs. The good news is that they address the very circumstances that motivated this Complaint. By promulgating a new policy, EPA did voluntarily what the Court likely would have required it to do had Plaintiffs prevailed. The bad news is that these changes also bar the watchdogs' suit from moving forward. For a case cannot proceed if the controversy underlying it - namely, Pruitt's and EPA's allegedly defective policy regarding written-record creation - no longer exists. The Court, therefore, will grant Defendants' Motion to Dismiss the case as moot.
I. Background
Like many cases involving federal records, this tale starts with the press. During the late summer and early fall of 2017, multiple news agencies reported that Pruitt had taken extensive steps to avoid creating records that could expose his decisions as EPA Administrator to public scrutiny. See ECF No. 1 (Complaint), *6¶¶ 38-41, 46-47. These stories painted a picture of a leader obsessed with secrecy who issued an array of directives aimed at ensuring that his actions left little paper trail. Id.
Armed with these reports, two government-watchdog groups took action. Plaintiffs Citizens for Responsibility and Ethics in Washington - which goes by the acronym CREW - and Public Employees for Environmental Responsibility - dubbed PEER - are nonprofit public-interest organizations that commonly employ Freedom of Information Act requests to further their advocacy, research, education, and litigation functions. Id., ¶¶ 5, 7, 9, 11. For CREW, these functions revolve around ensuring the integrity of public officials. Id., ¶ 5. PEER's focus is on the environment. Id., ¶ 9.
CREW and PEER (which, for the sake of simplicity, the Court will refer to jointly as "CREW") filed a three-count Complaint against Pruitt, EPA, and two other Defendants who - as the Court will explain in a second - no longer have a role in this play: the National Archives and Records Administration and its leader, Archivist David S. Ferriero. Count I alleged that Pruitt was engaging in a consistent practice of deliberately failing to create records in contravention of the Federal Records Act and its implementing regulations. Id., ¶¶ 54-61. Count II faulted EPA for having a deficient official records-management program. Id., ¶¶ 62-66. The third count took a different tack and extended the ambit of those responsible beyond the Agency. It alleged that the Archivist is asleep at the wheel and has neglected his duty to investigate Pruitt's violations of the FRA. Id., ¶¶ 67-71.
Defendants responded with a Motion to Dismiss. They first argued that the allegations in Count I were judicially unreviewable. The Court disagreed. Following a lengthy exposition of the relevant caselaw, it concluded that, while a court may not entertain a suit challenging an agency's handling of isolated records, it may consider a case asserting that the agency's aggregate practice or policy - whether formal or informal - is inconsistent with the FRA's requirements. See CREW v. Pruitt,
But before this suit could gather much steam, the Agency changed course. Most notably, Pruitt heeded the myriad calls for his resignation and left EPA in July 2018. Then, on August 22, EPA adopted a new "Interim Records Management Policy," which it emailed to all staff and many contractors. See ECF No. 21 (Def. Motion), Attach. 1 (Second Declaration of John B. Ellis, EPA Agency Records Officer), ¶¶ 4-7. As the Agency's email to its staff reflects, this revised policy "[h]ighlights the obligation to document substantive decisions reached orally." Ellis Decl., Exh. B (Email from Vaughn Noga to EPA
*7Employees). The email also informed its recipients that the new policy "supersedes any prior policy to the extent such policy is inconsistent with this Interim Records Management Policy."
Not long after this communication, Defendants filed the current Motion, seeking a dismissal of the case as moot given EPA's revised policy. In the alternative, Defendants moved for summary judgment, contending that the Agency has always complied with the FRA. Because the Court agrees that developments subsequent to CREW's filing of the Complaint moot this action, it does not reach the issue of summary judgment.
II. Legal Standard
In evaluating Defendants' renewed Motion to Dismiss, the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.' " Sparrow v. United Air Lines, Inc.,
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff generally bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See DaimlerChrysler Corp. v. Cuno,
Unlike some other jurisdictional issues, the party asserting mootness - here, the Government - bears the burden of establishing that the case is in fact moot. See Honeywell Int'l, Inc. v. NRC,
III. Analysis
Article III of the Constitution limits federal courts' jurisdiction to "actual, *8ongoing controversies." Honig v. Doe,
The Court's analysis of whether there remains a live controversy here proceeds in three stages. It separately tackles the question of whether recent events have sufficient power to moot each of Plaintiffs' two counts - i.e. , whether they do, in fact, take care of the concerns articulated in CREW's Complaint. The Court last asks whether the fact that one of these events - the EPA's new policy - is the result of the Agency's voluntary conduct, rather than a court-imposed mandate, changes the analysis. This requires consideration of the doctrine of voluntary cessation. The Court is cognizant that most courts, when faced with an argument about mootness that derives from the defendant's voluntary conduct, proceed directly to voluntary cessation. Where there is doubt that this conduct even can moot the case, however, the Court thinks it prudent to address this threshold issue first. For if the acts are not capable of depriving the Court of jurisdiction, then it matters not whether Defendants can revert to their old ways. The action would remain live regardless.
A. Count I
Plaintiffs' first count takes aim at Pruitt's conduct while leading EPA. The instances of questionable behavior that serve as the factual underpinnings of his allegedly deficient practices are legion. Paraphrasing primarily a report from the New York Times, CREW contends that Pruitt "verbally instructed EPA staff not to create a written record about major substantive matters" and "directed staff not to take notes" during meetings. See Compl., ¶¶ 38-39. Following his own directive, Pruitt delivered instructions orally and avoided using email, so that no written records of his statements survived. Id., ¶ 40. These tactics permitted him to "operate[ ] in extensive secrecy and avoid[ ] creating an adequate record of his and the EPA's actions." Id., ¶ 36. This secrecy, the Complaint alleges, extended beyond records of decisions. Pruitt went so far as to prohibit most career staff from visiting the floor on which the Agency's political staff resided. Id., ¶ 46. He was also concerned about his phone calls. So, the Complaint continues, Pruitt "reportedly ... used telephones other than his own to make important calls to avoid their appearance *9on his own call log." Id., ¶ 40. All this, Plaintiffs say, created a recordkeeping practice "at [Pruitt's] direction" that ran afoul of the mandate imposed by the FRA and its implementing regulations. Id., ¶¶ 42, 54-58.
Pruitt's embattled tenure at EPA, however, has come to an end, as he resigned on July 6, 2018. Whatever policies are now in place at the Agency, they no longer exist "at his direction." Id., ¶ 42. Someone else has taken over that authority - namely, Acting Administrator (and substituted Defendant) Andrew Wheeler. Given that Plaintiffs seek only forward-looking relief, this development undermines the remaining vitality of their claim.
To be sure, as CREW points out, the Complaint includes language that extends its allegations beyond Pruitt. By the time the Complaint concludes its recitation of the facts and articulates its claims, it has framed its beef as one with both Pruitt "and other top EPA officials." Id., ¶¶ 57-58; ECF No. 24 (Plaintiffs' Opposition) at 5, 6. But these conclusory statements bely the gravamen of the claim. The relevant facts focus almost exclusively on Pruitt. CREW captions the relevant portion of the facts "Administrator Pruitt's Failure to Create a Record of Agency Business." Compl., ¶ 36 (emphasis added). Within this section, Plaintiffs catalog, in almost a dozen separate paragraphs, Pruitt's alleged deficiencies. Id., ¶¶ 36, 38-42, 45-48. Other than one brief allegation in which they lump together "EPA Administrator Pruitt and other EPA political appointees," id., ¶ 38, Plaintiffs do not lodge a grievance against the conduct of any other member of EPA. In fact, the Complaint does not even identify any other official at the Agency, nor is there a single relevant allegation that exists independent of Pruitt's conduct. On the contrary, the mentions of other EPA officials are best read as referring to Pruitt's staff acting at his direction. Language in the Complaint says as much, faulting the "failure of Administrator Pruitt and his staff, at his direction." Id., ¶ 42 (emphasis added).
In denying Defendants' first Motion to Dismiss, the Court relied on these references to Pruitt's actions to conclude that Plaintiffs had sufficiently alleged a "policy" or "practice" of failing to create records. See CREW,
The reason for this doubt is straightforward. For a controversy to remain live, Plaintiffs must maintain a "legally cognizable interest" in the suit and must therefore be able to point to an ongoing injury. See Already, LLC,
The scope of available relief buttresses this conclusion. When "intervening events make it impossible to grant ... effective relief," the case is moot. See Lemon,
To the extent CREW could claim an entitlement to broader relief, it again faces a roadblock. Perhaps Plaintiffs could argue that a hangover from Pruitt's conduct remains at EPA. Indeed, CREW says that it is "likely" to seek a curative communication from "EPA's leadership disavowing prior instructions." Pl. Opp. at 14. Putting to the side any question about whether it would be proper for the Court to order such a communication, EPA has already taken this action. Vaughn Noga, who serves as its Senior Agency Official for Records Management, sent a notice to all staff informing them of their recordkeeping obligations and noting that the communicated policy "supersedes any prior policy." Email from Vaughn Noga to EPA Employees. Maybe Plaintiffs would prefer that this communication came from someone else, or that it acknowledged what Plaintiffs see as Pruitt's past misconduct, but this beef is sliced a bit too thin. The Court does not retain jurisdiction over an entire matter simply because Plaintiffs, if they were to prevail, might request some line edits to an already-issued curative email.
Or maybe - along similar lines - the Court might have required EPA to promulgate a revised policy to correct the informal and deficient policy that existed under Pruitt. But this, too, the Agency has now done. It has implemented a new policy, which Plaintiffs do not contend is deficient under the FRA. And it has sent a mass email informing staff of the revised policy. See Second Ellis Decl., ¶¶ 4-7. EPA already requires its staff to undergo mandatory annual records-management training. Id., ¶ 9. There is no more the Court would do. See LaRoque v. Holder,
CREW retorts that the relief it seeks is broader than EPA's voluntary actions. Should they prevail, Plaintiffs ask for an injunction requiring the entire Agency to comply with the FRA. Specifically, they request an order compelling it "to make and preserve as federal records all records *11containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency." Compl., ¶ 61; accord Pl. Opp. at 5. The reason they are entitled to this relief, CREW says, is that Count I faults EPA's top brass for failing to comply with the requirements of the FRA, rather than challenging the Agency's formal policy. See Pl. Opp. at 4-6. A new official policy, therefore, is not enough.
Just because Plaintiffs ask for the moon does not mean that they are entitled to it. As hinted above, CREW's request runs headlong into this Court's prior Opinion on the permissible scope of this cause of action. Faced with the Agency's contention that the challenged conduct was not judicially reviewable, the Court concluded that D.C. Circuit law permitted plaintiffs to use the Administrative Procedure Act to enforce compliance with the FRA in a narrow circumstance: when plaintiffs challenge an "agency policy - formal or otherwise - that refuses to make" or preserve "records in accordance with the FRA." CREW,
But that is precisely what Plaintiffs seek here. They ask the Court to go beyond demanding that the Agency issue a new policy and instead monitor its compliance by "compelling [EPA] to make and preserve" a broad swath of records. See Compl., ¶ 61. A single and isolated act of failing to create such a record could run afoul of such an order. This is not the Court's place. Rather, it is "agency personnel, not the courts" who are tasked with rendering the day-to-day decisions mandated by the FRA. See Armstrong v. Bush,
With that, this count must come to an end. There is no remaining role for this Court to play. Neither a declaration decrying a past Administrator's conduct nor an injunction requiring the Agency to do what is has already done can "affect the parties' rights," nor can they "have a more-than-speculative chance of affecting them in the future." Am. Bar Ass'n,
B. Count II
The status of Plaintiffs' second claim flows naturally from the first. In this part of the Complaint, they assert that EPA maintained a deficient records-management program. As the reader is now well aware, the Agency has issued a new policy, which it says moots this allegation.
Before jumping into the parties' arguments, it may be worthwhile to lay a bit of groundwork. The promulgation of a superseding policy or program can have the power to moot a challenge to the old one. See, e.g., *12Worth v. Jackson,
Plaintiffs do not fight EPA on this point. They instead contend that this change, although a step in the right direction, does not get the Agency across the finish line. Their request is for a compliant records-management program, they say, not just a revised policy. See Pl. Opp. at 7-9; Compl., ¶¶ 63-64. Included in a satisfactory program are "effective controls over the agency's records programs." Compl., ¶ 63. These, they assert in their brief, are still lacking. See Pl. Opp. at 9-10.
The problem is that their Complaint does not back up this contention. Apart from the requirement to document substantive decisions reached orally, Plaintiffs do not point to any specific requirement imposed by the FRA that EPA lacks. They do not, for instance, specify any "effective controls" that the FRA requires not already in place at the Agency. As the Ellis declaration states, EPA requires all employees to go through a training session on its policy, which Plaintiffs no longer allege is lacking in any key respect. See Second Ellis Decl., ¶ 9. Wheeler, the Agency's current head, has already gone through this training.
CREW's explanation, rather, drifts back into the territory properly occupied by Count I. Plaintiffs fault Pruitt and EPA officials for failing to abide by the program, rather than deficiencies in the program itself, see Pl. Opp. at 8, and continue to take issue with "unlawful directives of top agency officials and an agency practice of affirmatively electing not to create records."
CREW's argument, moreover, seems to be more of a rewriting of their count than an explanation of it. Although, in teeing up Count II, Plaintiffs do mention that the Agency needs "effective controls," this is not what their count primarily gets at. Never do they request that EPA implement any component of a program that it currently lacks to give meaning to this requirement. Nor do they even point to a concrete deficiency in the Agency's program that would render its controls ineffective. The relief they do seek centers on *13requiring the Agency to have a program "to adequately document agency decisions and activities." Compl., ¶ 66 (emphasis added). The documentation of Agency decisions is precisely the subject of EPA's revision.
The only leg Plaintiffs have left to stand on is the one that got them over the Rule 12(b)(6) hump: EPA's failure to maintain an official policy requiring the documentation of substantive decisions reached orally. Because the Agency has now issued a superseding policy that (all appear to agree) remedies this deficiency - putting aside arguments about voluntary cessation addressed below - EPA has carried its burden of demonstrating that its action moots Count II.
Finally, Plaintiffs make no headway in arguing that the "interim" nature of the policy alone renders it inadequate. The Court has rejected such a contention before, and it does so again now. See CREW v. U.S. SEC,
C. Voluntary Cessation
In a final effort, Plaintiffs invoke the voluntary-cessation doctrine. This precept states that, unless certain conditions are met, a defendant's voluntary choice to forgo the challenged conduct does not deprive the court of jurisdiction. See United States v. W.T. Grant Co.,
Before doing so, however, a brief note on the scope of this inquiry may help to narrow the issues at play. EPA's promulgation of the revised records policy is a proper target of voluntary-cessation arguments. Pruitt's departure from the EPA, on the other hand, is not. The "voluntary-cessation exception to the mootness doctrine ... 'does not apply when the voluntary cessation of the challenged activity occurs because of reasons unrelated to the litigation.' " Leonard,
1. No Reasonable Expectation of Recurrence
This Court and other Circuits have previously and "consistently recognized that where the defendant is a government actor - and not a private litigant - there is less concern about the recurrence of objectionable behavior." CREW,
2. Effects of Violation Eradicated by Intervening Events
Similarly, no effects of the alleged violations linger. In the cases in which the effects of an injury were not eradicated, and thus kept the controversy alive, "some tangible, concrete effect, traceable to the injury, and curable by the relief demanded, clearly remained." Penthouse Int'l, Ltd. v. Meese,
Plaintiffs do not meaningfully argue otherwise. Instead, they rehearse arguments the Court already addressed above. Their primary contention is that the scope of their Complaint is broader than the EPA's curative action. See Pl. Opp. at 15. The Court rejects this contention for the same reasons it found it lacking above. In a challenge like this one, there is simply no lingering effect of a past violation when the only relief sought is prospective. See Penthouse Int'l,
* * *
The effect of this decision should not be overstated. Should CREW and PEER discern a current policy or practice at EPA of noncompliance with the FRA - rather than one explicitly superseded or intrinsically tied to a past Administrator - nothing in this decision bars them from bringing suit again. It is only the current Complaint that cannot proceed.
IV. Conclusion
For these reasons, the Court will grant Defendants' Motion to Dismiss. A separate Order so stating will issue this day.