Democracy Forward Found. v. Pompeo

• Decision Date: 23 July 2020
• Docket Number: Case No. 1:19-cv-01773 (TNM)
• Parties: DEMOCRACY FORWARD FOUNDATION, et al., Plaintiffs, v. Michael R. POMPEO, in his official capacity as U.S. Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

474 F.Supp.3d 138

DEMOCRACY FORWARD FOUNDATION, et al., Plaintiffs,

v.Michael R. POMPEO, in his official capacity as U.S. Secretary of State, et al., Defendants.

Case No. 1:19-cv-01773 (TNM)

United States District Court, District of Columbia.

Signed July 23, 2020

Nitin Shah, Benjamin M. Seel, Democracy Forward Foundation, Katherine Marie Anthony, American Oversight, Washington, DC, for Plaintiffs.

Kathryn L. Wyer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Much like Hamilton, Jefferson, and Madison's dinner that led to the Compromise of 1790, "no one else was in the room where it happened" when President Trump and then-Secretary of State Rex Tillerson met with their Russian counterparts during the 2017 G20 Summit. See Lin-Manuel Miranda, The Room Where It Happens, on Hamilton: An American Musical (Atl. Records 2015). That is, except their interpreters. Plaintiffs want to know what happened during that meeting. So they have turned to the President's interpreter, arguing that the U.S. Department of State had an obligation to preserve his notes under the Federal Records Act ("FRA"). Because the Court disagrees with Plaintiffs’ base premise—that these jottings were federal records—it grants summary judgment for the Government.

I.

According to some newspaper articles, President Trump held a sideline meeting with Russian President Vladimir Putin during the 2017 G20 Summit in Hamburg, Germany. See Pls.’ Cross-Mot. Summ. J. ("Pls.’ Mot."), Ex. A-1 ("Miller Article") at 5, ECF No. 18-2; Pls.’ Mot., Ex. A-2 ("Baker Article") at 18, ECF No. 18-2.¹ Then-Secretary of State Rex Tillerson, the Russian foreign minister, and two interpreters also attended. See Baker Article at 18. Following the meeting, the President allegedly asked the State Department interpreter, Yuri Shkeyrov, to give him his interpreting notes. See Miller Article at 5; Baker Article at 17. Shkeyrov complied. See Miller Article at 5; Baker Article at 17.

A year and a half later, the Washington Post broke the story. See Miller Article at 5–15; Baker Article at 17–18. "President Trump has gone to extraordinary lengths to conceal details of his conversations with Russian President Vladimir Putin," it claimed, "including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials[.]" Miller Article at 5.

These articles set off two series of actions. First, they alerted two nonprofit organizations—Plaintiffs Democracy Forward Foundation and American Oversight (collectively, "Democracy Forward" or "the Organizations")—to the possibility that the President's alleged action violated the FRA. See Pls.’ Mot. at 13. Shkeyrov's notes, they believed, were likely federal records. Id. And the President, by seizing them, unlawfully removed those records. Id. So they sent letters to the Secretary of State ("the Secretary"), copying the National Archivist ("the Archivist"). Id. ; Compl. Exs. A & B, ECF Nos. 1-1, 1-2. The Organizations notified the Secretary of the potential FRA violation and asked him to take administrative action to recover Shkeyrov's notes. Pls.’ Mot. at 13; Compl. Exs. A & B, ECF Nos. 1-1, 1-2. He never responded. Pls.’ Mot. at 13.

Second, the Washington Post articles prompted Timothy Kootz, the Division Chief of the Records Archives Management Division and the Agency Records Officer of the State Department, to investigate. A.R. at 6, ECF No. 15. He instructed his staff to speak with the Department's Office of Language Services to "collect information that would allow [him] to determine whether State Department interpreters’ notes would qualify as federal records." Id. After discussing his findings with the National Archives and Records Administration ("NARA"), he concluded that "any written material generated by the [ ] interpreter ... was not a federal record." Id. So the State Department never tried to recover Shkeyrov's notes. Id.

Democracy Forward disagrees with Kootz's conclusion. It maintains that these notes are federal records that cannot be removed or destroyed without adhering to the State Department and NARA's guidelines. Pls.’ Mot. at 8. And it sued the State Department, NARA, the Secretary, and the Archivist (collectively, "the Government") to try to force the Secretary and Archivist to initiate administrative action to recover Shkeyrov's notes. See Compl., ECF No. 1.

The Government promptly moved to dismiss the case. Defs.’ Mot. to Dismiss, ECF No. 9. But the Court denied that motion, finding that at that early stage, Democracy Forward had "made sufficient factual allegations about the notes and the Secretary and Archivist's awareness of the events to survive the Government's motion to dismiss." Mot. H'ring Tr. at 46:10–13 (Dec. 11, 2019), ECF No. 23.

Following that ruling, the Secretary and Archivist compiled and submitted an administrative record explaining the Secretary and Archivist's reasons for not trying to recover Shkeyrov's notes. See Notice of Filing of the A.R., ECF No. 15. This record contained declarations from State Department and NARA officials and the Blanket Purchase Agreement for interpreter contractors for the Department's Office of Language Services. See Index of A.R., ECF No. 15-1.

The parties have each moved for summary judgment. See Defs.’ Mot. Summ. J., ECF No. 16; Pls.’ Mot. Based on the administrative record, the Court now agrees with the Government that Shkeyrov's notes are not federal records. The Secretary and Archivist thus did not need to pursue recovery of the notes, nor was their decision to forgo administrative action arbitrary and capricious. So the Court will deny summary judgment for Democracy Forward and grant it for the Government.²

II.

Democracy Forward advances claims under Section 706(1) and (2) of the Administrative Procedure Act ("APA"). See Pls.’ Mot. at 17, 33. Normally, a court will grant summary judgment when there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But courts play a different role in APA cases.

When a court reviews final agency action under Section 706(2), summary judgment "serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." See Sierra Club v. Mainella , 459 F. Supp. 2d 76, 89–90 (D.D.C. 2006) (citing Richards v. INS , 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977) ). A court will invalidate the agency's action only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Though a court's review of agency action under the arbitrary and capricious standard is "narrow," it must determine whether the agency "examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (cleaned up).

Review of "an agency's inaction ... is still more limited." Citizens for Respons. & Ethics v. SEC , 916 F. Supp. 2d 141, 145 (D.D.C. 2013) (emphasis added). Under Section 706(1), a court may "compel agency action unlawfully withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1). This section of the APA "carried forward the traditional practice ... of writs of mandamus" which allowed "enforcement of a specific, unequivocal command ... of a precise definite act about which an official had no discretion whatever." Norton v. SUWA , 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (cleaned up). So Section 706(1) only empowers a court to compel "discrete" agency action where an agency is "required" by law to act. Id. at 64, 124 S.Ct. 2373.

III .

A.

The Federal Records Act requires agencies to "make and preserve records containing adequate and proper documentation" of the agencies’ activities and to establish records management programs to ensure proper maintenance of federal records. See 44 U.S.C. §§ 3101, 3102(1).

Yet not every scrap of paper lying about a bureaucrat's desk qualifies as a "record." See Armstrong v. Exec. Office of the President ("Armstrong II "), 1 F.3d 1274, 1287 (D.C. Cir. 1993). Records are limited to "recorded information, regardless of form or characteristics," that are (1) "made or received by a Federal agency under Federal law or in connection with the transaction of public business"; and (2) "preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them." 44 U.S.C. § 3301(a)(1)(A).

This definition provides sparse guidance for agency employees who make day-to-day calls about whether they can toss something into the shred bin. After all, how does someone determine whether a document is "appropriate for preservation ... because of the informational value of data" in a document? To help, Congress instructed the Archivist to promulgate regulations elaborating on Congress's definition.

See id. § 2904(c)(1). Under the FRA, "[t]he Archivist's determination whether recorded information ... is a record ... shall be binding on all Federal agencies." Id. § 3301(b).

The Archivist's regulations adopt the FRA's definition of "records." See 36 C.F.R. §§ 1222.10(a), 1222.12. But the regulations go on to explain that not all documentary materials qualify as records. As relevant here, the regulations specify that "[w]orking files, such as preliminary drafts and rough notes," are appropriate for preservation—and so are federal records—only in some cases. See...