Am. Oversight v. U.S. Dep't of Veterans Affairs
| Decision Date | 30 October 2020 |
| Docket Number | Civil Action No. 19-2519 (RDM) |
| Parties | AMERICAN OVERSIGHT et al., Plaintiffs, v. U.S. DEPARTMENT OF VETERANS AFFAIRS et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Daniel Alexander McGrath, American Oversight, Washington, DC, for Plaintiffs.
Christopher M. Lynch, U.S. Department of Justice, Washington, DC, for Defendants.
The Federal Records Act ("FRA") prohibits agency personnel from using private email accounts for official business without taking certain remedial measures. 44 U.S.C. § 2911. Upon learning of a violation of the FRA, an agency head must initiate an enforcement action through the Attorney General to recover the records. Id. § 3106(a). If the agency head fails to do so, the Archivist of the United States ("Archivist") must step in to initiate the enforcement action through the Attorney General. Id. § 3106(b). The D.C. Circuit has held that, although these duties are mandatory, an agency may first attempt to retrieve the missing records on its own before calling on the Attorney General.
While serving as Secretary of the United States Department of Veterans Affairs (the "VA"), David Shulkin used a private email account for official agency business, including corresponding with "Mar-a-Lago associates" of President Trump about agency policy, in violation of the FRA. After reading about former Secretary Shulkin's unlawful email use in the newspaper, the VA began informal efforts to retrieve the federal records from his private accounts. Unsatisfied with the pace and results of that intra-agency process, Plaintiffs American Oversight and Democracy Forward Foundation, nonprofits that advocate for government transparency, filed this suit against the VA, current Secretary of Veterans Affairs Robert Wilkie, the National Archives and Records Administration ("NARA"), and Archivist David Ferriero (collectively, "Defendants") seeking to compel them to initiate an enforcement proceeding through the Attorney General. Defendants move to dismiss on the ground that their ongoing efforts to acquire the records make Plaintiffs’ claims unripe for judicial determination.
For the reasons explained below, the Court will DENY Defendants’ motion to dismiss without prejudice and will defer consideration of the jurisdictional question presented in the motion until later in the litigation, once the parties have had an opportunity to develop a more complete record.
The FRA governs the "creation, management and disposal of federal records." Armstrong v. Bush , 924 F.2d 282, 284 (D.C. Cir. 1991). Through the FRA, Congress sought to ensure the "[a]ccurate and complete documentation of the policies and transactions of the Federal Government" and the "[j]udicious preservation and disposal of records." 44 U.S.C. § 2902. To those ends, the FRA requires the heads of federal agencies, including the VA, to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities." Id. § 3101. Agency heads must establish and implement "effective controls over the creation and over the maintenance and use of records in the conduct of current business," id. § 3102(1), and "shall establish safeguards against the removal or loss of records the head of such agency determines to be necessary and required by regulations of the Archivist," id. § 3105. The Archivist, in turn, "shall provide guidance and assistance to [f]ederal agencies" on their records policies, id. § 2904(a); shall "promulgate standards, procedures, and guidelines with respect to records management," id. § 2904(c)(1); and shall "conduct inspections or surveys of the records and records management programs and practices within and between [f]ederal agencies," id. § 2904(c)(7).
As relevant here, agency officers and employees "may not create or send a record using a non-official electronic messaging account" unless the officer or employee either "(1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record" or "(2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record." Id. § 2911.
To prevent the unlawful destruction or removal of records, the FRA creates a "system of administrative enforcement." Armstrong , 924 F.2d at 294. If an agency head becomes aware of "any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency," the agency head "shall notify the Archivist" and "with the assistance of the Archivist shall initiate action through the Attorney General for the recovery" of those records. 44 U.S.C. § 3106(a). If the agency head "does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action ... or is participating in, or believed to be participating in any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made." Id. § 3106(b). If both the agency head and the Archivist refuse to seek the initiation of an enforcement proceeding, then private litigants may sue under the Administrative Procedure Act to require them to do so. Armstrong , 924 F.2d at 295.
This case concerns former Secretary of Veterans Affairs David Shulkin's use of a private email account to conduct official VA business, including communications about VA policy with President Trump's private associates from his Mar-a-Lago Club. Dkt. 1 at 2 (Compl. ¶¶ 2–3).
Plaintiffs submitted Freedom of Information Act ("FOIA") requests to the VA seeking former Secretary Shulkin's emails. On May 4, 2018, and August 23, 2018, Plaintiff American Oversight requested "records regarding the influence of the Mar-a-Lago associates on VA policies and operations and records reflecting communications between agency officials and those private associates of the president." Dkt. 1 at 5 (Compl. ¶ 11). On July 2, 2019, American Oversight submitted an additional FOIA request seeking "all emails sent or received by former Secretary Shulkin on any personal email account regarding agency business." Id . On September 3, 2018, Plaintiff Democracy Forward submitted a FOIA request to the VA seeking "communications between VA officials, including former Secretary Shulkin, and the Mar-a-Lago associates and other records with the potential to shed light on the influence of those associates of the president on VA policies and operations." Id. at 6 (Compl. ¶ 13). On July 11, 2019, Democracy Forward submitted a further FOIA request to the VA "seeking all emails sent or received by former Secretary Shulkin on any personal, non-governmental, or nonofficial email account regarding official agency business." Id.
In response to those requests, the VA released records indicating that senior agency officials, including Shulkin, communicated about VA policies and operations with "three of President Trump's Mar-a-Lago Club associates: Marc Sherman, Bruce Moskowitz, and Isaac ‘Ike’ Perlmutter." Id. at 10–11 (Compl. ¶ 32–33) (citing Mar-a-Lago FOIA Records , Democracy Forward Found. (last visited Oct. 29, 2020), available at https://democracyforward.org/mar-a-lago-foia-records/; VA Records Regarding Concerned Veterans of America , American Oversight (Oct. 15, 2019), available at https://www.americanoversight.org/document/va-records-regarding-concerned-veterans-of-america). Those records also revealed that former Secretary Shulkin had corresponded with the President's Mar-a-Lago associates about official government business using a private email account, without either copying his official account on the messages or forwarding the conversations to his official account, in violation of the FRA. Dkt. 1 at 11 (Compl. ¶ 34). Media reports cited in Plaintiffs’ complaint suggest that Shulkin created these private email accounts for the specific purpose of communicating with the President's associates from the Mar-a-Lago Club. Id. (Compl. ¶ 35) (citing Ben Kesling, House Democrats to Probe How Trump's Associates Influenced the VA , Wall St. J. (Feb. 8, 2019, 9:02 AM), available at https://www-wsj-com.westlaw02.yykeyan.top/articles/house-democrats-to-probe-howtrumps-associates-influenced-the-va-11549634520).
Emails from former Secretary Shulkin's private accounts made their way into the VA's initial productions to Plaintiffs only in the relatively rare situations in which Shulkin happened to forward those emails to a subordinate's official account. Dkt. 1 at 12 (Compl. ¶ 37). Plaintiffs allege that the "VA's preservation and production only of incidentally forwarded email communications demonstrates that private email communications concerning agency business that Secretary Shulkin did not incidentally forward to a VA subordinate's official account have been unlawfully removed from VA custody." Id. at 12–13 (Compl. ¶ 39). Because Secretary Shulkin failed to transfer all agency records located in his private email accounts to his own official email account, he unlawfully removed those records from VA custody, in violation of the FRA. Id. at 13 (¶ 40).
On April 23, 2019, Plaintiff Democracy Forward sent a letter to Secretary Wilkie and the VA, copying Archivist Ferriero, to request that Secretary Wilkie act under the FRA to recover the records that former Secretary Shulkin removed, including by initiating an...
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