Citizens for Responsibility & Ethics v. Pompeo

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs, v. MICHAEL R. POMPEO, et al., Defendants.

Civil Action No. 19-3324 (JEB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 25, 2020

MEMORANDUM OPINION

Responding to a perceived lack of government transparency, non-profit Plaintiffs in this case contend that the State Department and its Secretary have adopted a policy and practice of not adequately creating records of their activities in violation of the Federal Records Act. They similarly allege that Defendants have not implemented effective controls over the agency's records program. Despite Plaintiffs' understandable displeasure at the Administration's efforts at concealment, this Court previously determined that neither of their original asserted counts stated a valid claim for relief. It nonetheless offered them a second bite at the apple, permitting them to augment their claims in the form of a revised pleading containing additional factual assertions.

Seizing the opportunity, Plaintiffs now return to court with a new Complaint in tow, which the Government once more moves to dismiss. The Court ultimately finds that this second effort to pass the pleading hurdle does not warrant a different outcome from the first. That is because Plaintiffs' Amended Complaint, although featuring new allegations, continues to suffer from the same fundamental flaw as its predecessor — namely, it protests individual acts of noncompliance with the FRA, rather than describing agency policies or guidelines that run afoul of the statute, as required for an FRA-predicated claim brought via the Administrative Procedure Act. The Court, accordingly, will grant the Motion to Dismiss.

I. Background

The Court begins with a brief overview of the relevant legal background before turning to the history of this litigation, which includes summaries of both its prior Opinion and Plaintiffs' Amended Complaint.

A. Legal Background

The Court has previously summarized the statutory background relevant to this case. See Citizens for Responsibility & Ethics in Wash. v. Pompeo, No. 19-3324, 2020 WL 1667638, at *1-2 (D.D.C. Apr. 3, 2020). Stated briefly, the Federal Records Act of 1950 dictates that federal agencies must "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency." 44 U.S.C. § 3101. The Act ensures the "[a]ccurate and complete documentation of the policies and transactions of the Federal Government," while simultaneously "prevent[ing] the creation of unnecessary records." Id. § 2902. It thereby requires agencies to "strike a balance 'between developing efficient and effective records management, and the substantive need for Federal records.'" Armstrong v. Bush, 924 F.2d 282, 292 (D.C. Cir. 1991) (quoting S. Rep. No. 94-1326, 94th Cong., 2d Sess. 2 (1976)).

The FRA "authorizes the 'head of each Federal agency' to establish a 'records management program' and to define the extent to which documents are 'appropriate for 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.). Pursuant to statutory authority, see 44 U.S.C. § 2904, the Archivist of the United States has promulgated regulations detailing varioustypes 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, https://fam.state.gov/Fam/FAM.aspx?ID=05FAM; 5 Foreign Affairs Handbook (FAH) 4 Records Management Handbook, https://fam.state.gov/Fam/FAM.aspx?ID=05FAH04. While the Archivist assumes certain responsibilities for ensuring agency compliance with the FRA, the Act "understandably leaves the details of records management to the discretion of individual agency heads." Armstrong, 924 F.2d at 923.

B. Procedural History

1. Dismissal of Initial Complaint

The Court's prior Opinion dismissing Plaintiffs' first Complaint sets the stage for the present discussion. Not only does their Amended Complaint draw heavily from the factual matter underlying that initial pleading, but the same core questions that dominated this Court's initial Opinion feature prominently in its resolution of the current Motion. A summary of the factual allegations in the first Complaint, along with the legal framework the Court invoked to assess and ultimately dismiss it, thus proves helpful here.

On November 5, 2019, three non-profit organizations — Citizens for Responsibility and Ethics in Washington, the National Security Archive, and the Society for Historians of American Foreign Relations — filed suit against the State Department and Secretary Pompeo. See ECF No. 1 (Complaint). These Plaintiffs, which have longstanding interests in government transparency and rely heavily on the availability of documentary histories of the government's activities, contended that Defendants had engaged in conduct that "conflict[ed] directly" with theFRA's records-creation and -maintenance directives. Id., ¶¶ 5, 8-18. Specifically, they alleged that members of the Department, with Pompeo's "knowledge," were participating in "off-the-books" "shadow diplomacy" aimed at promoting the President's personal interests in Ukraine. Id., ¶¶ 5, 52, 56, 60, 67. For example, Plaintiffs pointed to a call between Ukrainian President Volodymyr Zelensky and various American officials, during which then-American Ambassador to the European Union, Gordon Sondland, directed other participants not to take notes. Id., ¶ 52. The Complaint also alleged that Department officials used "personal 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. Finally, Plaintiffs detailed an array of incidents involving the President and his senior advisors, including the White House's attempt to shield from view the transcript of a call between the Presidents of the United States and Ukraine that Pompeo listened in on, id., ¶¶ 41-44, 65, and a meeting between the President's advisor, son-in-law Jared Kushner, and the Crown Prince of Saudi Arabia that U.S. embassy staff was "not read in on." Id., ¶ 67.

With these allegations highlighted, Plaintiffs contended that Defendants had flouted the FRA's requirements. They first claimed that Defendants had established an affirmative practice "not to create and preserve records adequately documenting" the Department's activities. Id., ¶ 71. In a second count, they asserted that Defendants had neglected to establish "effective controls" over the Department's records program, once again in violation of the FRA. Id., ¶ 78. Defendants moved to dismiss for failure to state a claim. See ECF No. 13-1 at 2.

The Court began by describing the types of legal claims regarding the FRA that it had the power to review. See Pompeo, 2020 WL 1667638, at *3-4. While the FRA does not provide a cause of action, see Kissinger, 445 U.S. at 148, in certain circumstances, plaintiffs may use theAPA to enforce compliance with the FRA. Citizens for Responsibility & Ethics in Wash. v. Wheeler, 352 F. Supp. 3d 1, 11 (D.D.C. 2019). The Court recounted the holding of Armstrong v. Bush, where the D.C. Circuit recognized two types of APA-based challenges that courts may entertain: 1) a claim that an agency's "'recordkeeping guidelines and directives do not adequately describe the material that must be retained as records'"; and 2) a claim "challenging the Archivist's or Attorney General's failure to take enforcement actions required by the Act." Pompeo, 2020 WL 1667638, at *3 (citing Armstrong, 924 F.2d at 293-95); see also Citizens for Responsibility & Ethics in Wash. v. Pruitt, 319 F. Supp. 3d 252, 257 (D.D.C. 2018). Private litigants may not, by contrast, sue directly "to enjoin agency actions in contravention of agency guidelines." Armstrong, 924 F.2d at 294. As a result, the Court summarized, it "may 'review the adequacy of an agency's guidelines and directives' governing records destruction and retention," Pompeo, 2020 WL 1667638, at *4 (quoting Armstrong, 924 F.2d at 293-94), but it "cannot entertain challenges to agency compliance with those guidelines in 'specific factual contexts.'" Id. (quoting Competitive Enter. Inst. v. EPA, 67 F. Supp. 3d 23, 33 (D.D.C. 2014)). To permit the latter compliance-based claims would "impermissibly inject the court into the 'details of record management,' a task better left 'to the discretion of agency heads.'" Id. at *3 (quoting Armstrong, 924 F.2d at 293).

While Armstrong governed claims surrounding an agency's destruction of records, the Court explained that it had previously extended the decision's distinction between guidelines-based challenges and compliance-based challenges to records-creation claims. Id. at *4. Specifically, this Court held in Pruitt that plaintiffs could indeed bring suit under the APA to challenge an agency's policy and practice of violating the FRA's records-creation requirements. See 319 F. Supp. 3d at 259-60. Such "policies and practices," the Court clarified, "may be'informal, rather than articulated in regulations or an official statement of policy.'" Pompeo, 2020 WL 1667638, at *4 (quoting Khine v. DHS, 334 F. Supp. 3d 324, 332 (D.D.C. 2018), aff'd, 943 F.3d 959 (D.C. Cir. 2019)). Critically, however, the Court cautioned that "[w]hile future plaintiffs may challenge [an agency'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." Id. (quoting Pruitt, 319 F. Supp. 3d at 260) (first alteration in original); see also Competitive Enter....