Citizens for Responsibility & Ethics in Wash. v. Pruitt

• Citation: 319 F.Supp.3d 252
• Decision Date: 24 July 2018
• Docket Number: Civil Action No. 18-406 (JEB)
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs, v. Scott PRUITT, Administrator, U.S. Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — District of Columbia

319 F.Supp.3d 252

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,

v.Scott PRUITT, Administrator, U.S. Environmental Protection Agency, et al., Defendants.

Civil Action No. 18-406 (JEB)

United States District Court, District of Columbia.

Signed July 24, 2018

Conor M. Shaw, Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiff.

Steven A. Myers, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Plaintiffs Citizens for Responsibility and Ethics in Washington (CREW) and Public Employees for Environmental Responsibility (PEER) are two nonprofit organizations dedicated to informing the public about governmental actions. In this suit for injunctive and declaratory relief, they allege that former head of the Environmental Protection Agency Scott Pruitt and the Agency itself have been intentionally flouting the Federal Records Act by failing both to create certain records and to maintain a proper records-management policy. They also allege that the National Archives and Record Administration (NARA) and its Archivist have been derelict in their duty to enforce the FRA against the Agency. Defendants — Pruitt, the EPA, NARA, and the Archivist — now move to dismiss all claims. Finding that all but one of Plaintiffs' counts can move forward, the Court will largely deny the Motion.

I. Background

The Court first sets out the relevant statutory and regulatory provisions at play here and then briefly describes the background of this litigation.

A. Statutory Framework

The Federal Records Act, 44 U.S.C. §§ 2101 - 20, 2901 - 11, 3101 - 07, 3301 - 14, "governs the creation, management and disposal of federal records." Armstrong v. Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). The Act requires agencies to create "standards and procedures" in order to ensure "[a]ccurate and complete documentation of the policies and transactions of the Federal Government." 44 U.S.C. § 2902. Agency heads are tasked to "establish and maintain a[ ] ... program for the ... management of the records of the agency," id. § 3102, and 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 Archivist has a central oversight role, "provid[ing] guidance and assistance to Federal agencies" by "promulgat[ing] standards, procedures, and guidelines with respect to records management." Id. § 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. If the Archivist finds that an agency has failed to comply with its duties under the FRA, NARA must "inform [it] in writing ... of the violation and make recommendations for its correction; and [ ] unless satisfactory corrective measures are demonstrably commenced within a reasonable time, submit a written report of the matter to the President and the Congress." 44 U.S.C. § 2115.

B. Factual History

CREW and PEER are two nonprofit "public interest organization[s]" dedicated, respectively, to informing "citizens ... about the activities of government officials" and "promot[ing] public understanding and debate concerning key and current public policy issues." Compl., ¶¶ 5, 9. To that end, both groups have "a significant interest in ensuring agency compliance with records responsibilities under the FRA," id., ¶¶ 6, 10, and frequently file Freedom of Information Act requests to obtain agency records. Id., ¶¶ 5, 7, 11-12.

According to Plaintiffs, Pruitt's arrival at the EPA ushered in a culture of secrecy. Id., ¶ 36. He and others "verbally instructed EPA staff not to create a written record about major substantive matters" and, during meetings, prohibited employees from using cell phones or taking notes. Id., ¶¶ 38-39. Indeed, Pruitt was so keen to avoid written records that he "used telephones other than his own to make important phone calls to avoid their appearing on his own call log," "avoid[ed] using emails that create a record of his statements," and commissioned a soundproof "privacy booth" for the cost of almost $25,000. Id., ¶¶ 40, 45.

Such secrecy, Plaintiffs allege, has impeded their ability to obtain FOIA records, id., ¶¶ 42-44, leading them to request help from NARA. On September 12, 2017, CREW sent a letter to the Archivist, highlighting the EPA's actions and requesting that he investigate and make recommendations to redress any recordkeeping violations. Id., ¶ 49. Two weeks later, NARA responded, stating that it had alerted an EPA official and requested a meeting within 30 days. Id., ¶ 50. CREW continued to correspond through the end of 2017, but NARA has not yet provided a detailed explanation of what (if any) investigation occurred and the result therefrom. Id., ¶ 53.

Believing that they had given NARA enough time to resolve this issue, Plaintiffs filed this three-count suit on February 22, 2018. Count I charges Pruitt and the EPA with violating the FRA's requirement to create and preserve records, and Count II alleges that the Agency lacks a proper records-management policy. In Count III, Plaintiffs claim that NARA and the Archivist have neglected their duty to investigate and redress EPA's statutory violations. Defendants now move to dismiss, asserting that Plaintiffs' counts are either non-justiciable or fail to state a claim.

II. Legal Standard

In evaluating Defendants' Motion to Dismiss, the Court must "treat the complaint's factual allegations as true ... and must grant [P]laintiff ‘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) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ) (citation omitted); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005). The pleading rules are "not meant to impose a great burden upon a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and it must thus be given every favorable inference that may be drawn from the allegations of fact. Sparrow, 216 F.3d at 1113.

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). The Court need not accept as true, then, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ) (internal quotation marks omitted). 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

The standard to survive a motion to dismiss under Rule 12(b)(1) is less forgiving. Under this Rule, Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court also has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, " ‘the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original) ). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253 ; see also Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005).

III. Analysis

The Court begins with a brief overview of the law before turning to Plaintiffs' specific claims.

A. Judicial Review of FRA

"Because [the] FRA is primarily directed at the preservation of federal records, the crux of the statute lies in its disposal provisions." Competitive Enterp. Inst. v. EPA, 67 F.Supp.3d 23, 26 (D.D.C. 2014) (emphasis added). The bulk of the admittedly scant precedent addressing judicial review of agency obligations under the Act also, unsurprisingly, concerns the destruction of records. Although the parties here disagree as to whether such cases apply to the EPA's obligation to create records, the Court nonetheless begins its discussion there.

In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), plaintiffs sought access through FOIA to official papers from Henry Kissinger's time as the National Security Advisor and at the State Department, which had been transferred to the Library of Congress. They alleged that Kissinger's unilateral removal of the papers violated § 3314 of the FRA, which prescribes the "exclusive" methods by which records may be "alienated or destroyed." Despite the presumption in favor of judicial review of agency action, see Abbott Labs. v. Gardner, 387...