IN RE: HILLARY RODHAM CLINTON AND CHERYL MILLS, PETITIONERS
No. 20-5056
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 2, 2020 Decided August 14, 2020
On Petition for Writ of Mandamus (No. 1:14-cv-01242)
David E. Kendall argued the cause for petitioners. With him on the petition for writ of mandamus and the reply were Katherine M. Turner,
Mark R. Freeman, Attorney, U.S. Department of Justice, argued the cause for respondent United States Department of State. With him on the response to the petition for writ of mandamus were Hashim M. Mooppan, Deputy Assistant Attorney General, and Mark B. Stern, Attorney.
Before: GRIFFITH, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: This petition arises from a
I.
On May 13, 2014, Judicial Watch submitted a FOIA request to the State Department for records in the Office of the Secretary regarding Ambassador Susan Rice‘s September 16, 2012 television appearances. The request sought:
Copies of any updates and/or talking points given to Ambassador Rice by the White House or any federal agency concerning, regarding, or related to the September 11, 2012 attack on the U.S. consulate in Benghazi, Libya.
Any and all records or communications concerning, regarding, or relating to talking points or updates on the Benghazi attack given to Ambassador Rice by the White House or any federal agency.
Complaint at 2 ¶ 5, No. 1:14-cv-1242, ECF No. 1 (July 21, 2014) (lettering omitted). After the State Department failed to timely respond, Judicial Watch filed suit in the United States District Court for the District of Columbia on July 21, 2014, and the case was assigned to Judge Lamberth. See id. at ¶¶ 5-9.
The State Department produced four responsive documents to Judicial Watch in November 2014 and provided a draft Vaughn Index in Deсember 2014, Pl.‘s Mot. for Status Conf. at 4 ¶ 5, No. 1:14-cv-1242, ECF No. 12 (Mar. 16, 2015). Judicial Watch subsequently requested a declaration describing the Department‘s search. See Third Joint Status Rep. at 2 ¶ 3(c), No. 1:14-cv-1242, ECF No. 16 (May 1, 2015). In joint status reports filed on December 31, 2014 and February 2, 2015, the parties informed the court that they might be able to settle the case or narrow the issues before the court, but that the State Department would first conduct additional searches for responsive documents by April 2015. See Joint Status Rep., No. 1:14-cv-1242, ECF No. 10 (Dec. 31, 2014); Joint Status Rep., No. 1:14-cv-1242, ECF No. 11 (Feb. 2, 2015).
On December 6, 2018, after the parties substantially completed discovery before Judge Sullivan and the government investigations had concluded, Judge Lamberth ordered additional discovery in this case. Mem. Op. at 1, 4-5, 9, No. 1:14-cv-1242, ECF No. 54 (Dec. 6, 2018). Although discovery in FOIA cases is rare, Judge Lamberth ordered the parties to develop a discovery plan regarding whether Secretary Clinton‘s “use of a private email [server] while Secretary of State was an intentional attempt to evade FOIA,” “whether the State Department‘s attempts to settle this case in late 2014 and early 2015 amounted to bad faith,” and “whether State ha[d] adequately searched for records responsive to Judicial Watch‘s request.” Order, No. 1:14-cv-1242, ECF No. 55 (Dec. 6, 2018). On January 15, 2019, the District Court entered a discovery plan permitting Judicial Watch to: depose “the State Department,” several former government officials and employees, and a former Clinton Foundation employee; serve interrogatories on several other government officials; obtain via interrogatories the identities of individuals who conducted the search of the records; and discover unredacted copies of various relevant documents and any records related to the State Department‘s conclusion about the need to continue searching for responsive records. Mem. Op. and Order, No. 1:14-cv-1242, ECF No. 65 (Jan. 15, 2019). The District Court reserved a dеcision on whether to permit Judicial Watch to depose Petitioners, id. at 2, and Secretary Clinton subsequently intervened, Mot. to Intervene, No. 1:14-cv-1242, ECF No. 128 (Aug. 20, 2019); see also Order, No. 1:14-cv-1242, ECF No. 129 (Aug. 21, 2019) (granting the unopposed motion to intervene).
On March 2, 2020, after the January 15, 2019 round of discovery was substantially complete, the District Court authorized yet another round of discovery, including the depositions of Petitioners. See Mem. Order, No. 1:14-cv-1242, ECF No. 161 (Mar. 2, 2020). Although Judicial Watch had proposed a broader inquiry, see Status Rep. at 13-15, No. 1:14-cv-1242, ECF No. 131 (Aug. 21, 2019), the court limited the scope of Secretary Clinton‘s deposition to her reasons for using a private server and her
On March 13, 2020, Secretary Clinton and Ms. Mills filed a petition for writ of mandamus in this Court, requesting an order “directing the district court to deny Judicial Watch‘s request to depose” them. Pet. at 4. Pursuant to this Court‘s order, Judicial Watch and the State Department each filed responses.1
II.
The common-law writ of mandamus, codified at
Applying this standard, we find the petition as to Secretary Clinton satisfies all three prongs, while the petition as to Ms. Mills fails to satisfy the first. Since the “three threshold requirements are jurisdictional,” regardless of Ms. Mills’ petition‘s merit on the other two inquiries, we are bound to deny the writ and dismiss her petition for lack of jurisdiction. Am. Hosp. Ass‘n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).
A.
Under the first prong of Cheney, Secretary Clinton and Ms. Mills must each have “no other adequate means to attain the relief” they request on mandamus. 542 U.S. at 380. Judicial Watch argues that the appropriate way for both Petitioners to garner review of the discovery order is to disobey it, be held in contempt, and then appeal that final order. See Judicial Watch Resp. at 12-14. However, while this is presently a viable path for Ms. Mills, a nonparty respondent, it is not for Secretary Clinton who has intervened and is a party in the case. See Mot. to Intervene, ECF No. 128; Order, ECF No. 129.
It is true that “in the ordinary case, a litigant dissatisfied with a district court‘s discovery order must disobey the order, be held in contempt of court, and then appeal that contempt order on the ground that
The same regime, however, does not apply to Ms. Mills, a nonparty respondent in the case. It is well settled that “a nonparty can appeal an adjudication of civil cоntempt[.]” 15B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3917 (2d ed. 1992); see also U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) (“The right of a nonparty to appeal an adjudication of contempt cannot be questioned. The order finding a nonparty witness in contempt is appealable notwithstanding the absence of a final judgment in the underlying action.“) (quoting United States v. Ryan, 402 U.S. 530, 532 (1971) and Cobbledick v. United States, 309 U.S. 323, 328 (1940)); Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1987); United States v. Columbia Broad. Sys., 666 F.2d 364, 367 n.2 (9th Cir. 1982) (compiling cases). Since Ms. Mills could appeal either a civil or a criminal contempt adjudication, unlike Secretary Clinton she does have available an “adequate means to attain the relief” and as such her petition fails at prong one. Cheney, 542 U.S. at 380.
Petitioners argue that given the “congruence of interests” between Ms. Mills and Secretary Clinton, Ms. Mills might
Finally, considering the burden the depositions would place on Petitioners given their scope and complete irrelevance to this FOIA proceeding (discussed in further detail infra at subsections B and C), we need not reach Petitioners’ and Respondent‘s arguments regarding hоw Secretary Clinton and Ms. Mills’ status as former Executive Branch officials might play into our analysis. See Pet. at 23-32; Judicial Watch Resp. at 12-14.
B.
Next, we turn to the second prong of the Cheney test, asking whether the District Court‘s Order granting Judicial Watch‘s request to depose Petitioners constituted a “clear and indisputable” error. 542 U.S. at 381. Petitioners can carry their burden in this inquiry if the challenged order constitutes a “clear abuse of discretion.” Id. at 380. Although a district court has “broad discretion to manage the scope of discovery” in FOIA cases, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), we find the District Court clearly abused its discretion by failing to meet its obligations under
In the vast majority of FOIA cases, after providing responsive documents, the agency establishes the adequacy of its search by submitting a detailed and nonconclusory affidavit on a motion for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011); see also SafeCard Servs., 926 F.2d at 1200. These affidavits are to be accorded a presumption of good faith and cannot be rebutted by “purely speculative claims about the existence and discoverability of other documents.” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Although, as a general rule, discovery in a FOIA case is “rare,” Baker & Hostetler LLP v. U.S. Dep‘t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting Schrecker v. U.S. Dep‘t of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002)), courts may order limited discovery where there is evidence – either at the affidavit stage or (in rarer cases) before – that the agency acted in bad faith in conducting the search, see Goland v. CIA, 607 F.2d 339, 355 (D.C. Cir. 1978) (affirming the district court‘s finding that plaintiff had not made a sufficient showing of bad faith, so summary judgment without discovery was warranted).
It is this bad-faith hook that the District Court used to justify several rounds of discovery in this case. In March 2016 the District Court authorized discovery into whether the State Department‘s attempts to settle the FOIA case in late 2014 and early 2015 – before Secretary Clinton‘s use
However, in finding suspicions of bad faith by the State Department opened the door for these far-reaching depositions of Petitioners, the District Court clearly abused its discretion in at least three ways. First, the District Court abused its discretion by failing to “satisfy[] its
gather information for use in proceedings other than the pending suit, discovery properly is denied“).
Here, the District Court ordered Secretary Clinton‘s deposition primarily to probe her motives for using a private email server and her understanding of the State Department‘s records-management obligations. See Mem. Order at 10, ECF No. 161. However, neither of these topics is relevant to the only outstanding issue in this FOIA litigation – whether the State Department has conducted аn adequate search for talking points provided to Ambassador Rice following the September 11, 2012 attack in Benghazi, or for any communications
The District Court has impermissibly ballooned the scope of its inquiry into allegations of bad faith to encompass a continued probe of Secretary Clinton‘s state of mind surrounding actions taken years bеfore the at-issue searches were conducted by the State Department. Secretary Clinton has already answered interrogatories from Judicial Watch on these very questions in the case before Judge Sullivan, explaining the sole reason she used the private account was for “convenience.” Resp. to Order at 3, No. 1:14-cv-1242, ECF No. 143 (Sept. 23, 2019).3 But more importantly, even if a deposition of Secretary Clinton were to somehow shake some novel explanation loose after all these years, this new information simply would have no effect on the rights of the parties in this FOIA case, making it “an inappropriate avenue for additional discovery.” Status Rep. at 5, ECF No. 133. As the Department of Justice argued below:
Even if this Court found that Secretary Clinton used private emаil with the specific intent of evading FOIA obligations, Plaintiff has already received the only relief such a finding would (arguably) make available: State‘s recovery, search, and processing of any records held by the former Secretary, including records that were not in the possession, custody, or control of State at the time the FOIA request was filed or the original searches were conducted.
Id. Discovery in FOIA cases is not a punishment, and the district court has no basis to order further inquiry into Secretary Clinton‘s state of mind, which could only conceivably result in relief Judicial Watch has already received – discovery. See Baker & Hostetler, 473 F.3d at 318. Furthermore, a bad-faith inquiry in a FOIA context is only relevant as it goes to the actions of the individuals who conducted the search. See, e.g., Ground Saucer Watch, 692 F.2d at 771-72 (reviewing accusations of bad faith on the part of the CIA stemming from how officials instructed employees
to conduct searches, how they construed the nature and scope of the FOIA request, and the failure to produce certain later-uncovered documents). Since there is no evidence Secretary Clinton was involved in running the instant searches – conducted years after she left the State Department – and since she has turned over all records in her possession, see Status Rep. at 6, ECF No. 133, the proposed deposition topics are completely attenuated from any relevant issue in this case.
As to Ms. Mills, who already testified for seven hours in the case before Judge Sullivan, including on Secretary Clinton‘s use of a private email and FOIA, Resp. to Order at 1, No. 1:14-cv-1242, ECF No. 142 (Sept. 23, 2019), there is no new informаtion
Second, the District Court abused its discretion by misapplying the relevant legal standard for a FOIA search. It is elementary that an agency responding to a FOIA request is simply required to “conduct[] a ‘search reasonably calculated to uncover all relevant documents.‘” Steinberg v. U.S. Dep‘t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dep‘t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)) (emphasis added). Unlike the Federal Records Act – which requires federal agencies to protect against the removal or loss of records,
Here, rather than evaluating whether the State Department‘s search for documents related to Ambassador Rice‘s Benghazi talking points was adequate, the District Court has instead authorized an imprоper Federal Records Act-like inquiry to uncover purely hypothetical emails or communications. Ground Saucer Watch, 692 F.2d at 772 (explaining that “unadorned speculation” cannot compel further discovery). The District Court attempted to justify the instant depositions, in part, because approximately thirty “previously undisclosed” emails were produced by the FBI in unrelated litigation and because it felt the State Department “failed to fully explain the new emails’ origins[.]” Memo. Order at 1-2, ECF No. 161. However, these documents – all of which Judicial Watch has conceded are nonresponsive to its FOIA request, see Tr. of Proc. at 35, ECF No. 156, and which it seems were in fact in the State Department‘s possession but were simply not searched in response to this narrow FOIA request, Oral Arg. Tr. at 52-53, – do not call into question the adequacy of the search or justify this wide-ranging and intrusive discovery.
It is well established that the reasonableness of a FOIA search does not turn on “whether it actually uncovered every document extant,” SafeCard Servs., 926 F.2d at 1201, and that the failure of an agency to turn up a specific document does not alone render a search inadequate, Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). In fact, this Court has stated that the belated disclosure of even responsive documents does not necessarily undermine the adequacy of an agency‘s search. See, e.g., Goland, 607 F.2d at 374; Ground Saucer Watch, 692 F.2d at 772. But here, the District Court determined that the discovery of nearly thirty nonresponsive documents that were already in the State Department‘s possession justified the depositions of persons who were not even involved in the search. We disagree and point the District Court
Third, the District Court failed to properly consider the central factor in this FOIA case – whether the agency‘s search was reasonably calculated to discover the requested documents – by disregarding this Court‘s recent decision in Pompeo, 744 F. App‘x at 4. The District Court premised its approval of Petitioners’ depositions partially on its belief that the State Department had “failed to persuade the Court that all of Secretary Clinton‘s recoverable emails have been located.” Mem. Order at 2, ECF 161. However, it made this proclamation without addressing this Court‘s decision in a recent Federal Records Act case between the same parties affirming that the State Department “ha[d] already taken every reasonable action to retrieve any remaining [Clinton] emails.” Pompeo, 744 F. App‘x at 4. In Pompeo, we found that “no imaginable enforcement action” could turn up additional emails and stated that it was “both fanciful and unpersuasive” to claim that the State Department had not done enough to retrieve emails from persons outside the agency with whom the Secretary may have corresponded. Id. Although Pompeo did not address this specific search for Ambassador Rice‘s Benghazi talking points, its language is clear – the State Department has exhausted every reasonable means to retrieve all of Secretary Clinton‘s recoverable emails. Id. Although we decline to adopt Petitioners’ characterization of this as a “mootness” issue, see Pet. at 19-22, we find the District Court did err by failing to address our findings in Pompeo and simply insisting Petitioners’ depositions would somehow squeeze water out of the rock. If a search for additional Clinton emails has been exhausted in a Federal Records Act case – under a statutory scheme that does provide a process for the recovery or uncovering of removed records – the grounds for continued foraging in the more limited context of a FOIA case are fatally unclear.
C.
This brings us to the third prong of the Cheney standard, which asks if the Court, “in the exercise of its discretion, [is] satisfied” that issuance of the writ “is appropriate under the circumstances.” 542 U.S. at 381. Applying this “relatively broad and amorphous” standard, In re Kellogg Brown & Root, Inc., 756 F.3d at 762, we find the totality of circumstances merits granting the writ.
We observe, at the outset, that although Judicial Watсh devotes considerable attention to the first two prongs of Cheney, see Judicial Watch Resp. at 11-24, it “offers no reason, nor can we detect one, why we should withhold issuance of the writ if [Secretary Clinton] is otherwise entitled to it.” In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (per curiam); see generally Judicial Watch Resp. Because the mandamus prongs are jurisdictional, Am. Hosp. Ass‘n, 812 F.3d at 189, Judicial Watch‘s failure to address the third prong is not dispositive, see Montrois v. United States, 916 F.3d 1056, 1060 (D.C. Cir. 2019) (“We must assure ourselves of the existence of jurisdiction even though no party argues it is lacking.“), but our own review of the issue leads us to conclude that Cheney‘s third prong is satisfied. In light of the importance of the congressional aims animating FOIA, and in order to forestall future, similar errors by district courts that would hamper the achievement of
While “[i]n the ‘normal course, mandamus is not available to review a discovery order‘, . . . . [m]andamus is appropriate [] where review of an order ‘after final judgment is obviously not adequate.‘” In re Al Baluchi, 952 F.3d 363, 368 (D.C. Cir. 2020) (quoting In re Executive Office of President, 215 F.3d 20, 23 (D.C. Cir. 2000)) (emphasis added) (alteration omitted). In this vein, courts have found mandamus appropriate in the discovery context where necessary to correct an error with potentially far-reaching consequences. See, e.g., In re Kellogg Brown & Root, Inc., 756 F.3d at 763 (“This Court has long recognized that mandamus can be appropriate to ‘forestall future error in trial courts’ and ‘eliminate uncertainty’ in important areas of law.” (quoting Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975))); In re Sims, 534 F.3d 117, 128-29 (2d Cir. 2008) (mandamus may be appropriate to review discovery orders involving privilege wherе “immediate resolution will avoid the development of discovery practices or doctrine undermining the privilege“); Colonial Times, Inc., 509 F.2d at 524 (mandamus may be appropriate where resolution of discovery issue will “add importantly to the efficient administration of justice“); Sanderson v. Winner, 507 F.2d 477, 479 (10th Cir. 1974) (per curiam) (granting mandamus to vacate discovery order where district court‘s “decision [w]as an unwarranted extension” of Supreme Court precedent, “which extension would limit and curtail” a federal rule “in a manner never contemplated“).
These considerations counsel the issuance of the writ in the instant circumstances. As already noted, the District Court‘s Order reflects a deeply flawed view of both FOIA and
Illustrating the inappropriateness of the ordered discovery, the District Court authorized Judicial Watch to depose Secretary Clinton and Ms. Mills about “their knowledge of the existence of any emails, documents, or text messages related to the Benghazi attack.” Mem. Order at 10, ECF No. 161. However, the only basis for this request that Judicial Watch now points to is a passage in one of the nearly thirty nonresponsive emails discussed above, which suggests that Huma Abedin sent Secretary Clinton texts about the latter‘s schedule. See Judicial Watch App‘x at 15. These unrelated text messages, although potentially piquing the cоurt‘s curiosity, simply cannot justify the requested depositions.
Second, this is not a case of a government agency refusing to provide records from a personal email that is the subject of a direct FOIA request, see, e.g., Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 146-47 (D.C. Cir. 2016), or arguing that certain records are not in its control and as such cannot be produced, see, e.g., Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 151-57 (1980). Judicial Watch has conceded that it is not alleging a “cover-up” by either Secretary Clinton or Ms. Mills, see Oral Arg. Tr. at 46, and there is no evidence or even an accusation that Secretаry Clinton or Ms. Mills communicated about the specific issue at hand – Ambassador Rice‘s talking points or their creation – in a method that would not have been captured by the State Department‘s search to date. For example, in opposing the State Department‘s motion for summary judgment, Judicial Watch filed a
“To be sure, there are limits to the impact of a single district court ruling . . . . But prudent counsel monitor court decisions closely and adapt their practices in response.” In re Kellogg Brown & Root, Inc., 756 F.3d at 762-63. If left unchecked, the premise that such wide-ranging discovery should and will be countenanced under FOIA “would extend the FOIA to an essentially limitless number of materials . . . . The Act was not intended to be accorded such a reach.” Wolfe v. Dep‘t of Health & Human Servs., 711 F.2d 1077, 1081 (D.C. Cir. 1983). Such an “unwarranted extension”
FOIA represents a “congressional commitment to transparency,” Judicial Watch, Inc. v. Dep‘t of Defense, 913 F.3d 1106, 1109 (D.C. Cir. 2019) – a commitment whose fulfillment would be substantially hampered were judicial and other governmental resources devoted not to the iterated topics of FOIA requests and suits, but to free-ranging and perpetually evolving inquiries for which FOIA requests served as mere jumping-off points. The important aims at the core of FOIA therefore counsel us not to let the instant error lie. Cf. Colonial Times, Inc., 509 F.2d at 524 (mandamus may be apprоpriate to “add importantly to the efficient administration of justice“). In the face of the District Court‘s “clear abuse of discretion” in ordering this discovery, we find the writ is “appropriately issued,” Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964), to “forestall future error in trial courts” considering similarly attenuated discovery requests under FOIA, see Colonial Times, Inc., 509 F.2d at 524.
The circumstances under which this particular discovery order arises only buttress our finding of the appropriateness of mandamus. Judicial Watch does not in fact want for the information it purports to seek and has already been afforded extensive discovery related to the proposed deposition topics. In this FOIA case alone, it has taken eighteen depositions and propounded more than four times the presumptive maximum number of interrogatories. See Status Rep. at 1-3, No. 154;
Judicial Watch also has available to it a voluminous public record about the proposed deposition topics. As noted, several executive agencies and a House Select Committee have conducted inquiries into Secretary Clinton‘s use of a private email server and made their findings public.4
Secretary Clinton also provided eleven
CONCLUSION
For the reasons set forth above, we grant the petition for mandamus as to Secretаry Clinton, deny it as to Ms. Mills and dismiss Ms. Mills’ petition for lack of jurisdiction, and remand the case for proceedings consistent with this opinion.
So ordered.