Citizens for Responsibility and Ethics in Washington v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON, et al.,
Plaintiffs,
v. Civil Action No. 19-3324 (JEB)
MICHAEL R. POMPEO, et al.,
Defendants.
MEMORANDUM OPINION
While few applaud the proliferation of paperwork in the modern bureaucracy, some have
grown concerned over agencies’ failures to maintain an adequate paper trail of their decisions. In
this action, Plaintiffs — three non-profit organizations dedicated to encouraging government
transparency — challenge the State Department and its Secretary’s alleged policy and practice of
not adequately creating and maintaining records of their activities in violation of the Federal
Records Act. They also allege that the Department’s shabby recordkeeping demonstrates
Defendants’ lack of effective controls over the agency’s records program. To remedy these ills,
Plaintiffs seek the court’s declaration of the State Department’s present failure to sustain an
adequate records-management program and an injunction compelling Defendants to establish
such a program going forward.
The Government now moves to dismiss, arguing that these FRA-predicated claims
brought via the Administrative Procedure Act do not sufficiently state a claim for relief. Both
sides agree that while a litigant may file suit under the APA to contest whether an agency’s
guidelines or policies comport with certain provisions of the FRA, she cannot seek relief for
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individual acts of non-compliance with the Act. As the Court concludes that Plaintiffs’
Complaint as currently framed falls into the latter category, it will grant the Motion to Dismiss.
Because Plaintiffs allege in their submissions that recently disclosed information will bolster
their pleadings, the Court will dismiss only the Complaint without jettisoning the full case,
thereby allowing Plaintiffs to bring an Amended Complaint should they so desire.
I. Background
The Court begins with the statutory scheme at issue before proceeding to the allegations
asserted in Plaintiffs’ Complaint.
A. The Federal Records Act
The Federal Records Act of 1950 “governs the creation, management and disposal of
federal records.” Armstrong v. Bush, 924 F.2d 282, 284–85 (D.C. Cir. 1991). To ensure
“[a]ccurate and complete documentation of the policies and transactions of the Federal
Government,” while “preventing the creation of unnecessary records,” 44 U.S.C. § 2902, the Act
dictates that agencies must “make and preserve records containing adequate and proper
documentation of the organization, functions, policies, decisions, procedures, and essential
transactions of the agency.” Id. § 3101. The FRA ultimately ensures that agencies “strike a
balance ‘between developing efficient and effective records management, and the substantive
need for Federal records.’” Armstrong, 924 F.2d at 292 (quoting S. Rep. No. 94-1326, 94th
Cong., 2d Sess. 2 (1976)).
Agency heads and the Archivist of the United States play critical roles in implementing
the FRA. The Act “authorizes the ‘head of each Federal agency’ to establish a ‘records
management program’ and to define the extent to which documents are ‘appropriate for
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preservation’ as agency records.’” Kissinger v. Reporters Comm. for Freedom of Press, 445
U.S. 136, 147 (1980) (quoting 44 U.S.C. § 2901, et seq.). The Archivist must “provide guidance
and assistance” to the agencies, in part by creating general “standards, procedures, and guidelines
with respect to records management.” 44 U.S.C. § 2904. Pursuant to this authority, the
Archivist has promulgated regulations detailing what types of records agencies must create and
maintain, as well as the requirements for agency recordkeeping policies. See 36 C.F.R.
§§ 1222.22–1222.34. Consistent with those regulations, the State Department has produced its
own policies and procedures for records creation, maintenance, and destruction. See 5 Foreign
Affairs Manual (FAM) 400 Records Management, http://fam.state.gov/Fam/FAM.
aspx?ID=05FAM; 5 Foreign Affairs Handbook (FAH) 4 Records Management Handbook,
http://fam.state.gov/Fam/FAM.aspx?ID=05FAH04.
If the Archivist makes a finding of agency noncompliance with the FRA, she must notify
the offending agency, and, should it fail to “commence[]” “satisfactory corrective measures . . .
within a reasonable time,” she must “submit a written report of the matter to the President and
the Congress.” 44 U.S.C. § 2115. Despite the responsibilities the Archivist assumes, “the FRA
understandably leaves the details of records management to the discretion of individual agency
heads.” Armstrong, 924 F.2d at 928.
B. Factual History
“Because [the] FRA is primarily directed at the preservation of federal records,” much of
the statute and the majority of the caselaw surrounding it, is devoted to its “disposal
provisions.” Citizens for Responsibility & Ethics in Wash. v. Pruitt, 319 F. Supp. 3d 252, 256
(D.D.C. 2018) (quoting Competitive Enterp. Inst. v. EPA, 67 F. Supp. 3d 23, 26 (D.D.C. 2014)).
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This case, conversely, implicates an agency’s alleged failure to create records in contravention of
the dictates of the FRA and its implementing regulations.
Plaintiffs are three non-profits with longstanding interests in public disclosure,
particularly in the foreign-policy sphere. Citizens for Responsibility and Ethics in Washington
(CREW) “uses a combination of litigation, advocacy, and public education” to advance its
mission of “protecting the right of citizens to be informed about the activities of government
officials.” ECF No. 1 (Complaint), ¶ 8. The National Security Archive has similar aims but
focuses its investigations and studies on matters relating to national security and international
affairs. Id., ¶ 11. Finally, the Society for Historians of American Foreign Relations is a
professional society dedicated to the study of American foreign relations. Id., ¶ 15. All three
entities are frequent FOIA requesters that rely on the availability of documentary histories of the
government’s activities to fulfill their mandates. Id., ¶¶ 18–20.
The Complaint alleges Defendants’ noncompliance with the FRA’s records-creation and
-maintenance directives. In support of their claims, Plaintiffs state that members of the
Department are participating in “off the books” “shadow diplomacy,” guided by the President’s
personal attorney and aimed at promoting his personal interests abroad, principally in Ukraine.
Id., ¶¶ 52, 60, 67. For example, Plaintiffs highlight a call that included Ukrainian President
Volodymyr Zelensky, multiple Ambassadors, and Energy Secretary Rick Perry, during which
then–American Ambassador to the European Union, Gordon Sondland, directed other
participants not to take notes. Id., ¶ 52. The Complaint also alleges that Department officials
use “private phones and an encrypted messenger app” to conduct official business without
always ensuring that copies of those messages are saved and preserved. Id., ¶¶ 60–62.
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The pleadings detail several incidents involving the President and his senior advisors.
Much of the Complaint focuses on the transcript of a call between the Presidents of the United
States and Ukraine that the Administration attempted to shield from view, one of multiple
foreign-policy-related documents that the White House has tried to withdraw from the public
domain. Id., ¶¶ 41–44. The Complaint also describes a meeting between the President’s advisor,
son-in-law Jared Kushner, and the Crown Prince of Saudi Arabia, one that U.S. embassy staff
was not “read in on.” Id., ¶ 67. Finally, Kushner and another White House advisor, his wife
Ivanka Trump, allegedly conduct official White House business via personal email accounts,
along with, in Kushner’s case, an encrypted messaging system. Id., ¶ 68.
Believing that the “conduct of Secretary Pompeo and the State Department . . . conflicts
directly with their obligations under the FRA,” id., ¶ 5, Plaintiffs filed suit on November 5, 2019,
seeking declaratory and injunctive relief. Id., ¶¶ 1–4. They claim that Defendants have failed to
establish and maintain an adequate records system as required by the FRA and therefore have
acted in an arbitrary and capricious manner proscribed by the APA.
Count I alleges that Defendants have “followed a pattern and practice of affirmatively
electing not to create and preserve records adequately documenting” the agency’s “policies[,]”
“decisions[,]” and “essential transactions.” Id., ¶ 71. Count II posits that the “evidence of
widespread noncompliance at the State Department with the agency’s recordkeeping
requirements” demonstrates that Defendants have failed to establish “effective controls over the
agency’s records program.” Id., ¶ 78. Defendants now move to dismiss, arguing that the counts
fail to state a claim.
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II. Legal Standard
In evaluating Defendants’ 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., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) (citation omitted) (citing Leatherman v. Tarrant Cty. Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 164 (1993) (quoting Schuler v. United States, 617 F.2d 605,
608 (D.C. Cir. 1979)). The Court need not accept as true, however, “a legal conclusion couched
as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint.
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)).
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). For a plaintiff to survive a 12(b)(6) motion, the facts alleged in the
complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555–56.
III. Analysis
The Court will begin with an overview of the caselaw concerning the reviewability of
Plaintiffs’ FRA claims brought under the APA and will then consider each of the counts in turn.
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A. Judicial Review
The FRA does not provide an express or implied cause of action, see Kissinger, 445 U.S.
at 148, but in some circumstances, plaintiffs may use the APA to enforce compliance with the
FRA. See Citizens for Responsibility & Ethics in Wash. v. Wheeler, 352 F. Supp. 3d 1, 11
(D.D.C. 2019). In the seminal case on the subject, Armstrong v. Bush, our Circuit recognized
two APA-based challenges that courts may entertain regarding the FRA: (1) a claim that an
agency’s “recordkeeping guidelines and directives do not adequately describe the material that
must be retained as ‘records,’” 924 F.2d at 293; and (2) a claim challenging the Archivist’s or
Attorney General’s failure to take enforcement actions required by the Act. Id. at 294–95; see
also Pruitt, 319 F. Supp. 3d at 257 (describing Armstrong decision in more detail). By contrast,
the court held that “private litigants” may not sue directly “to enjoin agency actions in
contravention of agency guidelines.” Armstrong, 924 F.2d at 294. To permit such compliance-
based claims, the Circuit explained, would impermissibly inject the court into the “details of
record management,” a task better left “to the discretion of agency heads.” Id. at 293.
As a result, according to Armstrong, courts may “review the adequacy of an agency’s
guidelines and directives” governing records destruction and retention, id. at 293–94, but they
cannot entertain challenges to agency compliance with those guidelines in “specific factual
contexts.” Competitive Enter. Inst., 67 F. Supp. 3d at 33 (describing Armstrong); see also Pruitt,
319 F. Supp. 3d at 258 (“[U]nder Armstrong, courts may not entertain private suits alleging that
agencies have improperly destroyed or removed records, but they may consider ones challenging
whether agency guidelines that permit destruction of certain records are adequate under the
FRA . . . .”).
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While Armstrong squarely governs claims surrounding an agency’s destruction of
records, it was left to future courts to consider the decision’s applicability to records-creation
claims. In Pruitt, this Court applied Armstrong to a suit challenging the Environmental
Protection Agency’s alleged failure to create records in contravention of the FRA. See 310 F.
Supp. 3d at 258–61. There, Plaintiffs’ Complaint painted a stark picture of a pervasive “culture
of secrecy” imposed by then–EPA Administrator Scott Pruitt. Id. at 255. Pruitt allegedly
instructed EPA staff not to create any record of “major substantive matters,” prohibited
employees from taking notes or using phones during meetings, and even commissioned a nearly
$25,000 soundproof “privacy booth” to facilitate his clandestine regime. Id.
Extending Armstrong’s distinction between guidelines-based challenges and compliance-
based challenges, the Court held that the Pruitt plaintiffs could bring suit under the APA in
response to the defendants’ policy and practice of violating the FRA provision governing records
creation. Id. at 259–60; see also 44 U.S.C. § 3101 (agencies shall “make and preserve records
containing adequate and proper documentation of the organization, functions, policies, decisions,
procedures, and essential transactions of the agency”). The Court cautioned, however, that
“[w]hile future plaintiffs may challenge the EPA’s actions, in the aggregate, of refusing to create
certain records, they may not demand judicial review of isolated acts allegedly in violation of
§ 3101.” Pruitt, 319 F. Supp. 3d at 260; see also Competitive Enter. Inst., 67 F. Supp. 3d at 32
(“Armstrong I distinguished between reviewable challenges to an agency’s record-keeping
guidelines under the APA, and unreviewable challenges to the agency’s day-to-day
implementation of its guidelines.”).
Finally, as in the FOIA context, policies and practices such as those challenged in Pruitt,
may be “informal, rather than articulated in regulations or an official statement of policy.”
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Khine v. DHS, 334 F. Supp. 3d 324, 332 (D.D.C. 2018), aff’d, 943 F.3d 959 (D.C. Cir. 2019)
(quoting Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)). Indeed, in
Armstrong itself, the D.C. Circuit directed the district court on remand, when conducting its
analysis of the agency’s guidelines regarding records destruction, to consider the agency’s
“informal, supplementary guidance” including “guidance provided in staff meetings in which
recordkeeping responsibilities were discussed.” Armstrong, 924 F.2d at 297.
This canvassing of the relevant terrain illuminates the narrow issues remaining in dispute.
Armstrong and Pruitt clarify that a Court can review an APA claim challenging an agency’s
informal policy or practice of violating certain directives of the FRA, including the Act’s
records-creation and -destruction mandates, but it cannot address individual acts of
noncompliance. See also Citizens for Responsibility & Ethics in Wash. v. DHS, 387 F. Supp. 3d
33, 53 (D.D.C. 2019) (“[Pruitt] recognized . . . a challenge to the EPA’s unofficial policy of
refusing to create records.”). The question for the instant case, then, is whether the Complaint
falls into the former or the latter category.
B. FRA Claims
Count I
Count I alleges that Defendants have “followed a pattern and practice of affirmatively
electing not to create and preserve records” and of “direct[ing] other State Department
employees not to create and preserve records” in violation of the FRA and its implementing
regulations. See Compl., ¶¶ 71–72. According to Defendants, however, Count I “bootstrap[s] an
impermissible ‘compliance-based claim’ . . . into a ‘guidelines-based claim.’” ECF No. 13 (Def.
MTD) at 12 (quoting Competitive Enterp. Inst, 67 F. Supp. 3d at 33). Plaintiffs counter that their
Complaint “meets the pleading requirements for a policy and [practice] claim” because it
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identifies a “challenged policy and practice” and provides factual support for its existence,
including details concerning the Department’s conducting of an undocumented “shadow
diplomacy” “through a secret, alternative channel.” ECF No. 17 (Pl. Opp.) at 20 (quoting
Compl., ¶¶ 1, 4).
Defendants have the better of this argument. As currently framed, Plaintiffs’ wide-
ranging Complaint merely describes Defendants’ isolated violations of the guidelines governing
records creation rather than an agency-wide policy that violates the FRA. While guidance in the
FRA domain is scarce, FOIA doctrine is rife with considerations of “policy or practice”
challenges. In those cases, a plaintiff can bring suit under FOIA if he plausibly alleges “that the
agency has adopted, endorsed, or implemented some policy or practice that constitutes an
ongoing ‘failure to abide by the terms of the FOIA.’” Muttitt v. Dep’t of State, 926 F. Supp. 2d
284, 293 (D.D.C. 2013) (quoting Payne Enters., 837 F.2d at 491). The allegation of a “single . . .
violation [is] insufficient”; rather, there must be “ongoing” persistent violations. Scudder v.
CIA, 281 F. Supp. 3d 124, 129 (D.D.C. 2017); see also Judicial Watch, Inc. v. DHS, 895 F.3d
770, 780 (D.C. Cir. 2018) (“[P]laintiff must allege a pattern of prolonged delay amounting to a
persistent failure to adhere to FOIA’s requirements . . . .”). Only then could a court justifiably
find the existence of an actual policy or practice.
The pleadings here do not meet that standard. First, much of the Complaint contains
allegations regarding officials who are either not members of the State Department or are not
subject to the FRA at all. Statements concerning the President and his senior advisors in the
White House litter the pleadings, but these actors are generally governed by the Presidential
Records Act, see 44 U.S.C. § 2203, which “precludes judicial review of the President’s
recordkeeping practices and decisions.” Armstrong, 924 F.2d at 291. For example, Plaintiffs
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state that Department of Defense officials “were asked to send back transcripts of calls to the
White House after [President] Trump[’s] aides grew worried they could be disclosed.” Compl.,
¶ 43. The President’s aides’ attempts to secure a transcript from the Department of Defense do
not implicate the adequacy of the State Department’s recordkeeping policies.
To take another example, the Complaint alleges that senior White House advisors Jared
Kushner and Ivanka Trump conduct official business, including foreign-policy-related
discussions, in secret and often via their personal email accounts. Id., ¶¶ 67–68. Again, while
concerning, this activity does not demonstrate that State Department officials have adopted a
policy of declining to create or failing to adequately maintain records. Finally, that the U.S.
embassy in Tehran was “largely left in the dark” on the substance of Kushner’s meeting with the
Crown Prince of Saudi Arabia also does not involve the State Department’s recordkeeping
practices. Id., ¶ 67. Indeed, because it was “left in the dark,” the Department does not appear to
have had the opportunity to create a record on the subject at all.
Stripped to its core, then, the Complaint alleges an Administration-wide recordkeeping
failure concerning an aspect of its Ukraine policy. To the extent that a few isolated actions
involved some State Department personnel, Plaintiffs cannot transform an allegedly brazen
compliance violation into a “policy or practice” claim simply by slapping the “policy or practice”
label on it. See Competitive Enter. Inst, 67 F. Supp. 3d at 33 (“[Plaintiff] cannot challenge
EPA’s decision to destroy text messages by casting its claim as a challenge to an illusory record-
keeping policy. While the form of [plaintiff’s] claim sounds in a cognizable APA claim, the
substance of its allegations constitutes a challenge to EPA’s records disposal decisions.”).
While Plaintiffs may be justifiably displeased by the Administration’s efforts at
concealment, their allegations are a far cry from those found sufficient to state a
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policy-and-practice claim in Pruitt, where the EPA Administrator allegedly directed superiors
“not to create a written record about major substantive matters and, during meetings, prohibited
employees from using cell phones or taking notes,” and constructed a “soundproof privacy
booth” in which to conduct phone calls. See 319 F. Supp. 3d at 255 (internal quotation marks
omitted). The Complaint does not allege nearly the same sort of systemic non-compliance, and
certainly not a policy orchestrated from the highest levels. Plaintiffs claim that during one phone
call participants were directed by an Ambassador not to take notes, part of a potentially larger
effort (that Secretary Pompeo was “aware of”) that included using an encrypted messenger
application to shield an aspect of the President’s Ukraine policy from public view. See Compl.,
¶ 5. That is simply insufficient to clear the policy-and-practice bar.
This case is more akin to a different decision recently tendered in this District, where a
sister court concluded that a litigant could not bring a claim that “DHS violated the FRA by
failing to create records sufficient to link separated children to adults with whom they were
apprehended.” Citizens, 387 F. Supp. 3d at 50. There, as here, the plaintiffs challenged the
agency’s “deficient compliance with [the FRA] with regards to some of the records the agency
creates,” rather than a “DHS policy, official or unofficial, setting agency-wide compliance with
the FRA.” Id. at 53. Because the FRA prohibits “any judicial assessment of agency compliance
in specific factual contexts by establishing a detailed enforcement scheme for alleged
violations,” Competitive Enter. Inst., 67 F. Supp. 3d at 33, Count I cannot move past the
pleading stage.
Count II
Count II asserts that the Department’s recordkeeping guidelines are inadequate because
despite “evidence of widespread non-compliance,” the agency delegates “to each . . . employee
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the apparently unchecked discretion to ‘create and preserve records.’” Compl., ¶ 78. According
to Plaintiffs, this “lack of effective controls over the agency’s records program,” “particularly
with respect to the use of private phones and email accounts and encrypted messenger apps,”
violates the FRA. Id.
Count II therefore contests the adequacy of the State Department’s policy regarding
records preservation — most notably, guidelines pertaining to modern technology — which is
the sort of claim the D.C. Circuit has determined courts can consider via the APA. See Judicial
Watch, Inc. v. FBI, No. 18-2316, 2019 WL 4194501, at *6 (D.D.C. Sept. 4, 2019) (“Plaintiff
challenges the adequacy of Defendant’s official Policy Guidelines with respect to electronic
records other than email. This is just the sort of reviewable challenge to an agency’s
recordkeeping guidelines that Armstrong permits.”).
Count II, however, fails to state a claim for such a policy challenge. To survive
Defendants’ Motion to Dismiss, Plaintiffs must allege facts that could plausibly lead the Court to
find the contested policy “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Id. at *9 (quoting 5 U.S.C. § 706(2)(A)). First, because Plaintiffs have
not alleged “widespread” noncompliance by Defendants’ employees with Department guidelines,
see Compl., ¶ 78, they cannot sustain a claim that those guidelines are inadequate on the basis of
such noncompliance. Second, in criticizing the Department’s delegation of compliance
responsibility to individual employees, Plaintiffs never mention that those same guidelines, inter
alia, assign responsibility for coordinating employee compliance to specific personnel within
each Department component. See, e.g., 5 FAM 414.4(b) (assigning role within Department
bureaus to “bureau records coordinator”), id. at 414.5(b) (assigning role within Department
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diplomatic posts to “information management officer”). The guidelines, on their face, thus do
not grant individual employees “unchecked discretion” to comply (or not) with the FRA.
Finally, while Plaintiffs vaguely allude to the Department’s polices with respect to the
“use of private phones and email accounts and encrypted messenger apps,” the Complaint does
not describe what those policies are, and the incidents it documents concerning this technology
almost entirely involve actors outside of the State Department. Cf. MTD at 7 (describing State
Department’s interim updates to FRA guidance regarding encrypted messaging systems).
In sum, “[w]ithout more precise factual allegations that highlight which particular
deficiencies make the challenge to the [agency’s] policy inadequate, Plaintiff[s’] claims amount
to conclusory allegations that the [agency] failed to establish and maintain a recordkeeping
program that provides effective controls.” Judicial Watch, 2019 WL 4194501, at *9 (internal
quotation marks omitted); see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66–67
(2004) (courts are not empowered to enter general orders compelling compliance with broad
statutory mandates because it would “task . . . the supervising court, rather than the agency, to
work out compliance with the broad statutory mandate, injecting the judge into day-to-day
agency management”).
* * *
Despite the Complaint’s defects, the Court does not foreclose the possibility that
Plaintiffs might be able to state a claim for relief. Their Opposition, for example, includes
allegations of more recent violations of the Act perpetrated by State Department officials. See,
e.g., Pl. Opp. at 18 (alleging undocumented meeting between the Secretary of State and Russian
foreign minister); cf. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (“[D]ismissal
with prejudice is warranted only when a trial court determines that the allegation of other facts
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consistent with the challenged pleading could not possible cure the deficiency.”) (internal
quotation marks omitted) (quoting Jarrell v. UPS, 753 F.2d 1088, 1091 (D.C. Cir. 1985)). As a
result, the Court will dismiss only the Complaint and not the entire case. See Ciralsky v. CIA,
355 F.3d 661, 666 (D.C. Cir. 2004) (“The dismissal without prejudice of a complaint [is] not
final . . . because the plaintiff is free to amend his pleading and continue the litigation[;] . . .
dismissal without prejudice of an action (or ‘case’), by contrast” ends the suit and “is final.”).
Plaintiffs may thus file an Amended Complaint if they can retool their allegations to avoid the
pitfalls discussed herein.
IV. Conclusion
For the foregoing reasons the Court will grant Defendants’ Motion to Dismiss. A
separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: April 3, 2020
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