# Competitive Enterprise Institute v. Office of Science and Technology Policy

> District Court, District of Columbia · March 3, 2015 · 82 F. Supp. 3d 228

URL: https://www.frixlaw.com/law-library/cases/2783527

## Case

- **Full name:** COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff, v. OFFICE OF SCIENCE AND TECHNOLOGY POLICY, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** March 3, 2015
- **Citations:** 82 F. Supp. 3d 228; 2015 U.S. Dist. LEXIS 25160; 2015 WL 967549
- **Precedential status:** Published
- **Opinion:** Opinion by Kessler
- **Judges:** Judge Gladys Kessler
- **Nature of suit:** Civil
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2783527. Public record. Not legal advice.