                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


Competitive Enterprise
Institute,

             Plaintiff,

     v.

Office of Science and                         Civil Action No. 14-765 (GK)
Technology Policy

             Defendant.


                                MEMORANDUM OPINION

     Plaintiff Competitive Enterprise                  Institute          ("Plaintiff"           or

"CEI")    brings    this    action    against        the    Office        of       Science      and

Technology Policy       ("Defendant," "OSTP," or "the Government"),                               a

component of the Executive Office of the President of the United

States.     Plaintiff       alleges     violations           of      the           Freedom       of

Information Act       ("FOIA"),      5 U.S.C.    §    552,    (Counts          I    &   II),    the

Administrative      Procedure Act       ("APA"),       5 U.S.C.       §    704,         et    seq.,

(Count    III),    and the Federal Records Act               ("FRA"),          44 U.S.C.         §§

2101-18, 2901-09, 3101-07, 3301-14,              (Counts IV-VII).

     This     matter       is   presently        before        the        Court         on      the

Governmen.t' s Motion to Dismiss,             [Dkt. No.      7].   Upon consideration

of the Motion,       Opposition,      [Dkt.    No.    8],    Reply,        [Dkt.        No.    10],

and the entire record herein,            and for the reasons stated below,
Defendant's Motion                is       granted,        and        Plaintiff's          Complaint      shall

be dismissed.

I.      BACKGROUND

        A.      Statutory Framework

                1. Freedom of Information Act

        FOIA,      5    U.S. C.        §     552,    allows           individuals          to    request      the

disclosure of records from government agencies.                                        Id. § 552 (a) ( 3) .

When    an   agency        receives           a     request           that     "reasonably describes"

the    records         sought,         id.     §    552 (a) ( 3) (A) ,         ·it   must       "conduct []     a

search reasonably calculated to uncover all relevant documents."

Morely v.         CIA,    508     F.3d 1108,               1114        (D.C.    Cir.       2007)    (internal

quotation         marks     omitted).               The    agency        must        then       disclose      any

responsive agency records it locates,                                   except to the extent that

any such records are protected from disclosure by one of FOIA's

nine statutory exemptions. See 5 U.S.C. § 552(b).

        If   an    agency withholds                  responsive              records       not     covered by

one     of      FOIA' s     exemptions,                   after        exhausting           administrative

remedies,       the requester may file a lawsuit in district court to

challenge          the      agency's                decision            to      withhold.           See       id.

§    552(a) (4) (B). As the Supreme Court has held,                                   in order to state

a claim under FOIA,               a requester must allege that the agency has

(1)    improperly;         (2)     withheld;              (3)    agency records.                Kissinger v.

Reporters         Comm.    for         Freedom        of        the    Press,        445    U.S.    136,      150
                                                       -2-
    (1980).     "Judicial           authority       to    devise        remedies        and     enjoin

agencies can only be invoked .                             if the agency has contravened

all three components of this obligation." Id.

                    2.     Federal Records Act

         The        FRA     is     "a     collection       of     statutes        governing           the

creation,            management,          and     disposal       of     records         by     federal

agencies." Pub.                 Citizen v.      Carlin,    184 F.3d 900,          902       (D.C.    Cir.

1999);        accord 44          U.S.C.    §§     2101-18,      2901-09,    3101-07,          3301-14.

Under the FRA,              agency heads are required to "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.    Not

all     documents           in    an    agency's     possession         qualify    as        "records"

under         the        FRA.     Instead,        "records"       includes        any        "recorded

information" "made or received by a Federal agency under Federal

law or in connection with the transaction of public business and

preserved or appropriate for preservation by that agency

as evidence of the organization,                         functions,      policies, decisions,

procedures, operations, or other activities of the Government or

because             of      the         informational           value      in       them."            Id.

§    330l(a)(l)(A).

        Agencies may only dispose of records on terms approved by

the Archivist of the United States, who is head of the National
                                                    -3-
Archives and Records Administration                                ("NARA").         44 U.S.C.      §    3303;

36     C.F.R.          §     1225.10.            In   order       to     efficiently          manage       the

disposition                process,         agencies        may    create        records       schedules,

which must be approved by the NARA, to govern recurring types of

records.         44        U.S.C.      §     3303(3);        36    C.F.R.       §§    1225.10-1225.26.

Records          may        be    deemed          temporary        or    permanent,           the       former

designation leading to destruction after a                                      set period and the

latter, to preservation and eventually, transfer to the NARA. 36

C.F.R.      §§   1225.14, 1225.16.

       If       an     agency         head       learns     of    "any    actual,        impending,         or

threatened            unlawful         removal,        defacing,         alteration,          corruption,

deletion,            erasure,          or    other        destruction           of    records       in     the

custody of the agency," he or she must notify the Archivist.                                                44

U.S.C.      §     3106.          If   the        agency     head       "knows    or     has    reason       to

believe [that records] have been unlawfully removed from [his or

her]    agency," then the agency head "with the assistance of the

Archivist shall initiate action through the Attorney General for

the    recovery of               records [.]"         Id.     If the      agency head "does                not

initiate an action for such recovery or other redress within a

reasonable period of time,"                           then the Archivist                "shall      request

the    Attorney             Generai         to    initiate        such    an     action,       and       shall

notify the Congress when such a request has been made." Id.



                                                       -4-
        B.      Factual Background1

        On    October        15,    2013,      Plaintiff             sent      OSTP        a     FOIA     request

seeking       "copies        of     all    policy /OSTP-related                  emails           sent        to    or

from    jholdren@whrc.org                 (including            as    cc:      or· bee:)."              CEI     FOIA

Request       at     2.    [Dkt.     7-1];         see    also       compl.     ']['][    2-3,     26-28.          The

jholdren@whrc.org email account,                           provided to OSTP Director John

Holdren       ("Dr.       Holdren" or "Director Holdren")                                is maintained by

his    former        employer,        a    private             entity      called          the     Woods        Hole

Research Center.             Compl.       '][ 2,    23.        The request alleged that "John

Holdren maintained this                   account          after      joining the White House,

and     that         he     used      this          address/account                      for     OSTP-related

correspondence." CEI FOIA Request at 2.

        CEI     clearly           stated       that            its    request             would        "entail[]

searching          jholdren@whrc.org."                   Id.    According          to          CEI's     request,

while        "[i]t        [would]     make []            sense       for    OSTP           to     search           Mr.

Holdren's          OSTP     account(s) [,]                              this     request               [was]       for

responsive           records         on      the          cited       account[,]"                 id.'         i.e.,

jholdren@whrc.org, not his OSTP account(s).




1
   For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
(D.C. Cir. 197 9) ~ Therefore, unless otherwise noted, the facts
set forth herein are taken from Plaintiff's Complaint.
                                                     -5-
        On February 4,           2014,        Defendant         responded to CEI' s                    request

stating       that         "OSTP           [would        be]         unable          to        search             the

    'jholdren@whrc.org'          account                       because          that      account            [was]

under the control of the Woods Hole Research Center,                                                 a private

organization.             Compl.       ~     29     (quoting         OSTP' s     Response             to         FOIA
                     11




Request      [Dkt.        7-2]).       OSTP        stated       that       it    "underst[ood]                    the

records      [CEI]        requested to             be beyond the            reach         of    FOIA,       11
                                                                                                                  and

therefore, "consider [ed]                   [the] request unperfected.                    11
                                                                                               Id.

        On   February          18,         2014,     CEI       replied          to     OSTP's          letter.

Plaintiff      requested             administrative              appellate             review          of         the

agency's      initial          determination             that        the    records            sought            were

outside of FOIA's ambit. Compl.                      ~   30.

        On   March        7,    2014, 2       OSTP       responded          to       CEI's       letter            of

February 18.         Compl.      ~    32.     In OSTP's view,              CEI's letter did not

serve as      an     appeal;         instead,        it merely "clarif [ied]                         that        [CEI

was]    requesting a search of Dr. Holdren's OSTP email account for

records to and from jholdren@whrc.org.                          11
                                                                     Id.

        On April 18,           2014,       CEI responded,            calling OSTP's reading a

mischaracterization and reiterating its desire for the agency to

2
  Plaintiff's Co~plaint ~ 32 states that OSTP did not respond to
CEI's February letter until March 31, 2014, but that appears to
be a mistake. A copy of the letter with the text quoted in the
Complaint bears the date March 7, 2014. [Dkt. No. 7-4]. CEI
attached to its Opposition another letter from OSTP dated March
31,  2014,   [Dkt. No.  8-1],   but the March 31 letter also
references the March 7 letter.
                               -6-
search        for       all      OSTP-related                  emails       sent      to      or        from

j holdren@whrc. org.            Compl.      ':II 33;      CEI' s April Response              [ Dkt.      No.

7-5].     CEI      noted      that,   in     its         view,    the       agency had       failed        to

respond       to    CEI's       appeal      and         that     CEI     would     pursue      judicial

review       unless     OSTP     provided           a    substantive         response        by May        1,

2014. Compl. ':II 33.

        On May 5,       2014,     CEI filed its Complaint; on July 11, 2014,

OSTP filed its Motion to Dismiss;                              on July 28,         2014,     CEI        filed

its Opposition; and on August 21, 2014 OSTP filed its Reply.

II.     STANDARD OF REVIEW

        In    order        to    survive        a        motion        to    dismiss       under         Rule

12 (b) (6),     a plaintiff need only plead "enough facts to state a

claim to relief that is plausible on its face" and to "nudge[

[his     or     her]       claims     across             the     line       from     conceivable           to

plausible." Bell Atlantic Corp.                           v.     Twombly,      550    U.S.    544,        570

(2007).       "[O]nce a         claim has been stated adequately,                            it may be

supported          by   showing       any     set         of     facts      consistent        with        the

allegations in the complaint." Id. at 563.

        Under the Twombly standard,                           a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success .                       [,] must assume all the allegations in

the complaint are true                (even if doubtful in fact)                                   [,    and]

must give the plaintiff the benefit of all reasonable inferences
                                                        -7-
derived from the facts alleged." Aktieselskabet AF 21.                                          November

2001     v.     Fame    Jeans        Inc.,     525       F.3d     8,     17     (D.C.      Cir.        2008)

(internal       quotation marks              and     citations          omitted).          A complaint

will not suffice,             however,        if it "tenders              'naked assertion [ s] '

devoid of 'further factual enhancement.'" Ashcroft v.                                       Iqbal, 556

u.s.     662,     678     (2009)        (quoting          Twombly,            550    u.s.      at            557)

(alteration in Iqbal) .

III. ANALYSIS

       A.       Counts I & II: FOIA Claims Seeking an Injunction and a
                Declaratory Judgment

        Counts I and II of CEI's Complaint arise under FOIA,                                           which

allows        private    persons         to    contest           an     agency's           (1) improper

(2)    withholding       of     (3)    agency        records.          Kissinger,        445    U.S.           at

150.

        Plaintiff has been exceedingly clear about what it wanted

from     OSTP:     work-related              emails         residing          on     Dr.       Holdren's

unofficial email account,                jholdren@whrc.org, which is maintained

by a     private       entity,        the Woods          Hole    Research           Center.     See           CEI

FOIA        Request      at      2      ("This           [request]            entails          searching

jholdren@whrc.org.            It       makes       sense        for      OSTP       to     search             Mr.

Holdren's        OSTP    account(s)                             but     this        request       is          for

responsive        records        on     the        cited        account.");            Compl.          <J[     26

("Plaintiff's          FOIA   request         to     OSTP                     sought     specifically


                                                   -8-
described records            sent     to,    from or copied to                a    specific non-

official email address[.]") . 3

      Relying     on        Kissinger,        445   U.S.     at    139,           the   Government

contends   that        it     is     not    "withholding"         the     requested            emails

because it neither possesses nor controls them. 4                                  In Kissinger,

the   Supreme    Court        held     that     FOIA's      "withholding"               requirement

demonstrates      that        an     agency's       "possession          or        control      is     a

prerequisite     to     FOIA disclosure             duties [.]"         Id.       at    152.    Thus,

FOIA did   not     reach           transcriptions      of    Henry       Kissinger's            phone

calls once the transcriptions had been removed from the State

Department's     possession            and    placed     under     the        control          of    Mr.



3
  In its brief, CEI maintains that it also wants copies of emails
sent to or from jholdren@whrc. org that reside on Dr. Holdren's
official OSTP      email   account.  Pl.'s   Opp' n at 18-22.  CEI
acknowledges, ·however, that before litigation commenced, OSTP
had already begun rolling productions of responsive emails on
Dr. Holdren's OSTP account. Id. at 25. CEI claims that there is
something " [ s] uspicious []" about the Government's cessation of
these rolling productions, id., but the Government only stopped
production after CEI        filed suit,   alleging that OSTP had
"mischaracterized[,]" "distort[ed,] and effectively rewr[itten]"
CEI' s FOIA request. Compl. CJICJI 32, 3 7. In the face of these
allegations and CEI's statement that its "request [was] for
responsive records on [jholdren@whrc.org,]" CEI FOIA Request at
2, the Government's decision to stop production was neither
suspicious nor surprising. CEI's insinuations lack any merit.
4
  The Government also contends that the emails are not "agency
records" because OSTP did not create or obtain them. Because
CEI's FOIA claims fail on the "withholding" prong of the
Kissinger analysis, the Court need not cr:-each the question of
whether the emails sought are agency records.
                               -9-
•·


     Kissinger       and the        Library      of     Congress.       Kissinger,         445    U.S.     at

     154-55.

            Plaintiff's own allegations, which the Court must accept as

     true    at   this    stage,         belie    any     argument        that      OSTP    has   control

     over emails located on the                   jholdren@whrc.org account.                     Plaintiff

     itself admits            repeatedly that           emails      on the unofficial account

     are    outside      of    OSTP' s     control.       Compl.     ']['][   23,   27,    30,    4 6.    The

     Complaint specifically alleges that when an agency employee uses

     an email account "under the control of,                           a third party .                     in

     this    case,     the      Woods      Hole        Research     Center,"         the      emails      are

     "solely      under       the      control     of     private        parties        and      generally

     unknown to and inaccessible by the federal government[.]" Compl.

     '][ 23. Plaintiff cannot now disregard its own allegations.

            CEI   attempts          to   resuscitate          its    claim       with      the    argument

     that      because          ( 1)      Dr.      Holdren          maintains           control          over

     j holdren@whrc. org and              ( 2)   Dr.    Holdren is OSTP' s              Director,        OSTP

     controls     the unofficial             email      account.     Even putting aside this

     argument's       fundamental          conflict with CEI' s                allegations,        it     has

     no legal basis.

            The law is clear,               however,      that agencies do not -- merely

     by way of the            employer/employee relationship --                         gain "control"




                                                       -10-
                                                                              5
over      their      employees'       personal          email     accounts.         Competitive

Enterprise        Institute v.        National Aeronautics                and Space Admin. ,

989      F.   Supp.      2d     74,   86         (D.D.C.   2013)       (holding      that     NASA

employee's emails              located on university account were not under

the      agency's       control);          see     also    U.S.     Gov't     Accountability

Office,       GA0-08-742,         FEDERAL          RECORDS:       National       Archives      and
                                                                                                     6
Selected Agencies              Need   to    Strengthen        E-Mail      Management        (2008)

    ("Agencies    are    also     required         to   address     the    use    of    external

email     systems       that    are   not        controlled by      the     agency      (such· as

private       email     accounts      on     commercial         systems      such      as   Gmail,

Hotmail,      Mac,      etc.)"). 7 That is precisely why agencies admonish


5
  Quoting out of context, CEI argues that "employees are not
distinct   from their agencies."    Pl.'s Opp'n at   4   (quoting
Judicial Watch, Inc. v. Dep't of Energy, 310 F. Supp. 2d 271,
300 (D. D.C. 2004)). The cited language, however, had nothing to
do with agency control of employees' personal accounts, and
instead, dealt only with whether Department of Energy employees
detailed to the Office of the Vice President created FOIA-
accessible records during the detail. Judicial Watch, Inc., 310
F. Supp. 2d at 300. More importantly, the district court was
reversed on this point. See Judicial Watch, Inc. v. Dep' t of
Energy, 412 F.3d 125, 132 (D.C. Cir. 2005) (holding that "the
detailees were as a practical matter employees" of the Office of
the Vice President and that therefore their records were not
"agency records".within the meanin~ of FOIA).
6
     Available at http://www.gao.gov/assets/280/276561.pdf.
7
  CEI relies on Landmark Legal Foundation v. EPA, 959 F. Supp. 2d
175, 182 (D.D.C. 2013) for the proposition that, if so directed
by a FOIA request, agencies must search employees' personal
email accounts. The ·factual· context of that case was quite
different. Because of "EPA's silence" about to whether "personal
                               -11-
their employees              to use   their      official       accounts     for     government

business        (and    discipline        employees       who     repeatedly        fail    to   do

so).     See     id.;        Armstrong     v.     Bush,     924    F.2d      282,     296     n.12

(describing options available to agency officials to prevent and

remedy the unlawful removal of agency records by employees); see

also Compl.       ~    42.

        Under     FOIA,        even     high      ranking       agency       officials        have

personal       interests        distinct        from    those     of   the    agencies        they

lead.    See e.g.,           Kissinger,    445 U.S.       at 157. (rejecting argument

that would render "Kissinger's personal books, speeches, and all

other memorabilia              stored     in    his    office                agency        records

subject to disclosure under []                   FOIA."); Bureau of Nat'l Affairs,

Inc.    v.   Dep't of Justice,            742 F.2d 1484,           1496    (D.C.     Cir.    1984)

(holding that           appointment calendars             for     DOJ Assistant Attorney

General were not subject to FOIA because they "were created for

the personal           convenience of           individual      officials      so    that     they

could organize both their personal and business appointments.").

CEI fails to cite any authority supporting the proposition that

simply because Dr. Holdren heads the OSTP,                          his unofficial email

account falls under the agency's control.



accounts were being used to conduct official business [,]" the
Court did not have the opportunity to address whether EPA
actually had the requisite control of its employees' accounts.
Id.
                             -12-
        Finally, CEI worries that if government employees' personal

email accounts             are not          subject    to       FOIA,     agency officials will

escape       FOIA         coverage           altogether           by     conducting             government

business with their personal accounts. CEI's reliance on FOIA to

solve       this    anticipated             problem        is    misplaced:          "Congress       never

intended       when       it     enacted       []    FOIA,        to    displace         the     statutory

scheme       embodied          in    the     Federal        Records       Act       and    the     Federal

Records      Disposal          Act     providing          for    administrative            remedies       to

safeguard against wrongful removal of agency records as well as

to retrieve wrongfully removed records." Kissinger,                                        445 U.S.       at

154;     accord          Armstrong,          924     F.2d        at    294     (In       post-Kissinger

amendments          to     the       FRA     "Congress           again       decided       to     rely    on

administrative enforcement,                        rather than          judicial         review at       the

behest       of     private          litigants        to        prevent       the    destruction          or

removal of records."). Accordingly, Counts I & II of Plaintiff's

Complaint shall be dismissed.

       B.         Count III: APA Claim Seeking Review                                      of     Agency's
                  Failure to Take Action on FOIA Request

       Count III of the Complaint seeks relief under the APA for

OSTP's       failure        to       take     action        with       respect       to     CEI's        FOIA

request.      The Government contends that the APA permits                                        judicial

review       only     when          "there     is    no     other        adequate         remedy     in     a

court[.]" Gov't's Mot.                  at 24       (quoting 5 U.S.C.                §    704).    Because


                                                    -13-
FOIA provides its own remedial scheme,                            "[t]his Court and others

have uniformly declined jurisdiction over APA claims that sought

remedies       made        available       by     FOIA."    Feinman            v.     F.B.I.,      713    F.

Supp. 2d 70,          76     (D.D.C. 2010).          For this reason,                 and because CEI

failed       to       respond       to      the     Government's                arguments         in     its

Opposition, Count III shall be dismissed.

       C.      Counts IV and V: FRA Claims Seeking a Declaratory
               Judgment and an Injunction Ordering OSTP to Preserve
               and Prevent the Destruction of Documents

       Count IV seeks a declaratory judgment that,                                     under the RFA,

OSTP     has      a        duty     to     acquire,        preserve,             and      prevent        the

destruction           of    work-related           email     sent         or     received         on   non-

official accounts,                and Count V seeks               an injunction to enforce

this duty. Under the FRA, however, private parties may challenge

only   (1)     the adequacy of an agency's record-keeping guidelines;

or (2) the agency head or Archivist's failure to seek initiation

of an enfor?ement .action by the Attorney General. Armstrong,                                             924

F.2d at      291-93,         295.        Private    plaintiffs            may       not   challenge        an

agency's compliance with its guidelines. Id. at 294.

       As    CEI' s        Complaint       acknowledges,          OSTP' s           records      retention

policies       are     facially          adequate.      Compl.      <JI    54       ( "OSTP policy         is

also   clear      on       this     issue.      After      being     informed             that    an     OSTP

employee       was     using       non-official           email     for         official         business,

Director Holdren affirmed the                       law and policy in equally clear
                                                   -14-
terms,      reminding          OSTP       staff     in        the     Holdren    memo        that       work-

related         email       must     be    copied        to     the      agency[.]");            id.     ~   30

("[T]he Federal Records Act,                       OSTP policy and the                 'Holdren memo'

all mak [e]           plain that employees cannot exempt records from the

law    by       keeping        them       from     the        control      of    others          in      their

agency.").

       Attempting             to    evade     the     FRA's         preclusion         of        compliance

claims,         CEI    argues       that     its    Complaint            "describes         the        Holdren

memo to illustrate what OSTP once admitted its policy should be,

not as evidence of what its policy                              (and practice)          in fact is."

Pl.'s Opp' n at 2 6-27                (emphasis in original) . The allegations in

CEI's Complaint, however,                    fail to show that OSTP has "repudiated

the Holdren Memo" as CEI now argues. Id. at 27.

       Instead          the        Complaint       provides           an   example          of     Director

Holdren following what CEI believes to be an acceptable records

retention policy,              namely issuance of his memo to all employees.

Compl.      ~    54.    On the basis of vague allegations,                          without citing

any    specifics,           CEI     bases    its     argument            that   OSTP' s      policy          (as

practiced)        is inadequate and that it has engaged in a "pattern,

practice,         and       ongoing       policy     of       failing      to    acquire,          and       not

preserving,            work-related          email        sent      to     or   from        non-official

email accounts [.] "                Compl.     ~   92.    However,         this allegation is no

more      than          a     "legal         conclusion             couched       as         a         factual

                                                    -15-
allegation[,]"              and     is    accordingly,             "not          entitled            to      the

assumption of truth." Ashcroft,                        556 U.S.        at        678-79.            For these

reasons Counts IV and V shall be dismissed.

       D.       Count VI: Writ of Mandamus

        Count VI of the Compliant seeks a writ of mandamus ordering

the    Director of           OSTP to       "prohibit         the practice of using non-

official email accounts for work-related correspondence" and "to

preserve      and      provide"          the    documents          Plaintiff            seeks.          Compl.

!    110. The "remedy of mandamus is a drastic one,                                     to be invoked

only in extraordinary circumstances.                          Mandamus is available only

if:    (1)    the      plaintiff         has    a    clear     right        to    relief;             ( 2)   the

defendant has           a   clear duty to act;                and    ( 3)    there is no other

adequate remedy available to plaintiff." Power v.                                       Barnhart,            292

F.3d 781, 784          (D.C. Cir. 2002)              (internal citations and quotation

marks omitted) .

       The    Government          argues        that       CEI's    request            for      a    writ     of

mandamus is duplicative of Plaintiff's FRA claims and that the

request is faulty because:                     ( 1) the FRA precludes judicial review

of     agency       compliance           with       record-retention              guidelines,                and

therefore Plaintiff has no clear right to relief;                                            ( 2)    OSTP has

no clear duty to act because agencies have discretion under the

FRA;    and     ( 3)   to     the    extent         that    Plaintiff            has    any         right     to

relief, the availability of APA review of an agency's failure to
                                                    -16-
notify       the    National    Archivist           of   unlawful       record     removals      is

enough to          preclude mandamus.             CEI    failed    to    respond to        any of

these arguments in its Opposition, and therefore, Count VI shall

be dismissed.

        E.     Count VII: FRA Claim Seeking an Injunction Requiring
               OSTP's Director to Notify National Archivist of
               Removal of Federal Records

        Count VII seeks an order directing the head of the OSTP to

"notify the Archivist of the United States, and initiate actions

through       the Attorney General                regarding       the    removal    of    federal

records permitted by the Administrator                        [sic]       and to assist the

Attorney General in initiating an enforcement action to recover

those    records."       Compl.      <JI   122.     Unlike    CEI' s      other    FRA    claims,

Count VI I         is not barred by the Act itself.                     Armstrong,       92 4 F. 2d

at 296       ("[I]f the agency head or Archivist does nothing while an

agency official destroys or removes records in contravention of

agency       guidelines       and   directives,          private        litigants    may       bring

suit to require the agency head and Archivist to fulfill their

statutory duty to notify Congress and ask the Attorney General

to initiate legal action.").

        In order to state a                claim,    CEI must plausibly allege that

records       have     been    unlawfully           "removed"       from     OSTP.       Id.     The

parties do not dispute that although a record may reside on an

unofficial email account,                  it has not been "removed" for purposes
                                               -17-
of the FRA as long as a copy als"o exists on an official account. 8

Thus,     in order to state a claim,                 CEI must plausibly allege that

Dr. Holdren failed to copy his official account with any agency

records residing on his unofficial account.

        The        Complaint     never     directly     alleges     that      Dr.    Holdren

failed        to     place     copies     of   agency    records      on     his     official

account.       Instead -- quite tellingly --                  Plaintiff merely states

that      OSTP's        response          to   the     FOIA     request       shows      that

j holdren@whrc. org          contains      records    not     copied to OSTP' s        files.

In Plaintiff's view,             "OSTP asserted that plaintiff's request was

not in fact a FOIA request because it sought emails Holdren had

placed under his             sole control,       in contravention of the Federal

Records Act [.] '" Compl.           <J[   55   (emphasis added) ) ;        see also Compl.

<JI   113. Rather than state a factual basis for its allegation that

Dr.     Holdren        unlawfully         removed     agency     records,      CEI     simply

                                                                       9
point's to OSTP's response to CEI's FOIA request.


8
  Though not relevant here, the Government adds that an email is
unlawfully "removed" (even when the agency has a copy) if there
is some independent reason why the document should not appear on
an unofficial account,    such as the presence of classified
information. Gov't's Reply at 19.
9
  CEI attempts to shift the burden of proof to OSTP, arguing that
"OSTP has not even alleged that most [records sent to or from
unofficial email   accounts] were captured on agency systems[.]"
Pl.'s Opp' n at 24. CEI contends that "it is simply implausible
to suggest that each and every one of the many emails in
Holdren's 'personal' email account did not qualify as a federal
                               -18-
        However, OSTP's response, which is quoted in the Complaint,

does not assert that "Holdren had plgced                                     [agency records]       under

his     sole   control [.]"          Compl.    err         55.   To the       contrary,      the   agency

responded,       "OSTP     is        unable     to          search      the     'jholdren@whrc.org'

account for the records you have requested because that account

is    under     the     control        of     the          Woods      Hole     Research      Center,    a

private organization.           II    Compl.         err    55   (quoting Denial Letter,             OSTP

FOIA No. 14-02, February 4, 2014).

        CEI would have the Court interpret OSTP's refusal to search

Dr. Holdren's           unofficial          account              to     be     an    admission       that

uncopied agency records                 reside there.                 That does not          suffice to

state     a    claim.    CEI    must        affirmatively               allege       facts   that    make

plausible       the     claim        that     documents               have    been    "removed"      from
                                               10
OSTP.    It has failed to do so,                           and therefore Count VII shall be

dismissed.



record[.]" Pl.'s Opp'n at 26. However, it is CEI, the Plaintiff
in this matter, that bears the burden of alleging sufficient
facts to support its claim.
10
       Plaintiff's Opposition states that CEI discovered that "many
examples of work-related correspondence between Holdren (using
his personal email account)        and then-EPA administrator Lisa
Jackson turned up in a sample Vaughn index as withheld agency
records, in CEI v. EPA, D.D.C. No. 12-1617 (JEB) ." Pl.'s Opp'n
at 25. Even though the Complaint refers to the cited Vaughn
index, it fails to make this particular allegation. See Compl.
errerr 2, 20,   80. Plaintiff now asks the Court to take judicial
notice of the Vaughn index and of the truth of CEI' s newfound
allegation. The Court cannot take judicial notice of the facts
                                  -19-
IV.   CONCLUSION

      For the foregoing reasons,   Defendant'~   Motion to Dismiss is

granted,   and Plaintiff's Complaint shall be dismissed. An Order

shall accompany this Memorandum Opinion.




March 3, 2015                        Gladys Kess r
                                     United States District Judge


Copies to: attorneys on record via ECF




CEI attempts to establish because they (1) were not alleged in
CEI's Complaint and (2) appear to be without basis in the
document cited. The Vaughn index contains numerous redactions of
an email address belonging to Dr. Holdren, but contrary to CEI's
assertion,   the  redacted   address   is  apparently  the   OSTP
Director's official White House account. Decl. of Eric Wachter
[Dkt. No. 10-1] SI 7 ("EPA withheld the official White House
email address of Dr. Holdren[.]        No other email address was
withheld by EPA in these documents.").
                               -20-
