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Judicial Watch, Inc. v. Pompeo

United States Court of Appeals for the District of Columbia Circuit

December 4, 2018, Filed

No. 17-5275

Opinion

 [*3]  JUDGMENT

This cause was considered on the briefs and appendix filed by the parties and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C. CIR. R. 36(d). It is

ORDERED AND ADJUDGED that the judgment of the District Court be affirmed.

This case concerns the work-related emails that Hillary Clinton ("Clinton") sent from private email accounts, servers, and devices during her tenure as Secretary of State. ] Under the Federal Records Act, federal agencies are required to protect against the removal or loss of records. 44 U.S.C. § 3105. When documents have been unlawfully [**2]  removed or destroyed, agency heads "shall initiate action through the Attorney General" to recover the records. Id. § 3106(a). Appellant Judicial Watch, Inc. ("Judicial Watch") brought the present suit to compel the Secretary of State to initiate such an enforcement action to recover Clinton's emails.

The District Court initially dismissed the case as moot, but this court reversed because the record suggested that many of Clinton's emails might not have been recovered. See Judicial Watch, Inc. v. Kerry ("Judicial Watch II"), 844 F.3d 952, 955-56, 427 U.S. App. D.C. 174 (D.C. Cir. 2016), rev'g 156 F. Supp. 3d 69 (D.D.C. 2016). On remand, the Government presented new evidence of additional investigative efforts to recover Clinton's outstanding emails. Notably, in addition to the State Department's efforts, the Federal Bureau of Investigation ("FBI") had sought all of Clinton's work-related emails as part of its investigation into whether Clinton had unlawfully handled classified information. At the conclusion of its investigation, the FBI determined that "there were no further steps that could have been reasonably undertaken by the FBI that would have recovered additional Clinton work-related e-mails." Suppl. Priestap Decl. ¶ 12, reprinted at Joint Appendix ("J.A.") 148; see also First [**3]  Priestap Decl. ¶ 14, reprinted at J.A. 42. The FBI turned over all recovered records to the State Department. The District Court again dismissed the case as moot, finding that the State Department had secured custody of all the emails the Attorney General could have recovered in an enforcement action. Judicial Watch, Inc. v. Tillerson ("Judicial  [*4]  Watch III"), 293 F. Supp. 3d 33, 47 (D.D.C. 2017). Judicial Watch appealed.

] The court of appeals reviews de novo a decision granting a motion to dismiss for lack of jurisdiction. ACLU v. CIA, 823 F.3d 655, 661, 422 U.S. App. D.C. 339 (D.C. Cir. 2016). We hereby affirm the District Court's decision to dismiss for want of jurisdiction on the grounds of mootness.

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744 Fed. Appx. 3 *; 2018 U.S. App. LEXIS 34147 **; 2018 WL 6430371

JUDICIAL WATCH, INC., APPELLANT v. MICHAEL R. POMPEO, IN HIS OFFICIAL CAPACITY AS U.S. SECRETARY OF STATE, APPELLEE

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States District Court for the District of Columbia. (No. 1:15-cv-00785).

Judicial Watch, Inc. v. Tillerson, 293 F. Supp. 3d 33, 2017 U.S. Dist. LEXIS 185717 (D.D.C., Nov. 9, 2017)

CORE TERMS

emails, moot, enforcement action, recovered, records, work-related, pointless, shake, case or controversy, court of appeals, third party, unlawfully, quotation, Appendix, initiate, referral, retrieve, parties, marks, arm

Administrative Law, Governmental Information, Recordkeeping & Reporting, Civil Procedure, Appeals, Standards of Review, De Novo Review, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Jurisdiction, Subject Matter Jurisdiction, Jurisdiction Over Actions, Justiciability, Mootness, Real Controversy Requirement, Constitutional Law, The Judiciary, Case or Controversy, Mootness, Dismissal, Involuntary Dismissals