Citizens for Responsibility & Ethics in Wash. & Nat'l SEC. Archive v. Trump

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2019 Decided May 28, 2019

No. 18-5150

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

AND NATIONAL SECURITY ARCHIVE,

APPELLANTS

v.

DONALD J. TRUMP, THE HONORABLE, PRESIDENT OF THE

UNITED STATES OF AMERICA AND EXECUTIVE OFFICE OF THE

PRESIDENT OF THE UNITED STATES,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-01228)

George M. Clarke III argued the cause for appellants.

With him on the briefs was Anne L. Weismann.

Mark B. Stern, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief was Abby

C. Wright, Attorney.

Before: TATEL and PILLARD, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Shortly after President Trump took

office, the press reported that White House personnel were

communicating over messaging apps that, unlike standard text

messaging platforms that preserve conversations,

automatically delete messages once read. Alleging that the use

of such apps violates the Presidential Records Act (PRA),

which requires the preservation of official presidential records,

Citizens for Responsibility and Ethics in Washington and the

National Security Archive (collectively, “CREW”) sued,

seeking a writ of mandamus prohibiting the use of such apps

and requiring the White House to issue guidelines to ensure

compliance with the PRA. The district court denied the writ,

and we affirm. As explained below, CREW has failed to

establish the most fundamental element of mandamus: a clear

and indisputable right to relief.

I.

Enacted in the wake of Watergate and the ensuing struggle

over Congress’s authority to access former-President Nixon’s

records, the Presidential Records Act “establish[es] the public

ownership of records created by . . . presidents and their staffs

in the course of discharging their official duties.” H.R. Rep.

No. 95-1487, 95th Cong. at 2 (1978). Although the PRA makes

clear that the United States “retain[s] complete ownership,

possession, and control of Presidential records,” 44 U.S.C.

§ 2202, it also provides that the President, during his term in

office, shall assume “exclusive[] responsib[ility] for custody,

control, and access to such Presidential records,” id. § 2203(f).

The PRA sets out three basic requirements for the handling of

presidential records during a president’s tenure.

First, the Act requires that records “shall, to the extent

practicable, be categorized as Presidential records or personal

3

records upon their creation or receipt and be filed separately.”

Id. § 2203(b). The PRA defines “[p]residential records”

broadly to include all “documentary materials” “created or

received by the President,” his staff, and his advisors “in the

course of conducting activities which relate to or have an effect

upon the carrying out of the constitutional, statutory, or other

official or ceremonial duties of the President.” Id. § 2201(2).

Second, the statute regulates the disposal of presidential

records. “[T]he President may dispose of . . . records . . . that

no longer have administrative, historical, informational, or

evidentiary value,” but only after “obtain[ing] the views, in

writing, of the Archivist.” Id. § 2203(c). The Archivist may

seek Congress’s advice on the proposed disposal if he believes

that doing so “is in the public interest.” Id. § 2203(e). Disposal

decisions matter because presidential records—if not

previously discarded, that is—become available for public

release several years after a president leaves office. See id.

§ 2204(b)(2) (providing that “[a]ny such record which does not

contain [statutorily exempted] information” shall be publicly

available pursuant to the relevant Freedom of Information Act

(FOIA) provisions “5 years after the date on which the

Archivist obtains custody of such record”).

Third, the PRA directs the President, “[t]hrough the

implementation of records management controls and other

necessary actions,” to “take all such steps as may be necessary

to assure that [presidential] activities . . . are adequately

documented and that such records are preserved and

maintained as Presidential records.” Id. § 2203(a).

Richard Nixon could only have dreamed of the technology

at issue in this case: message-deleting apps that guarantee

confidentiality by encrypting messages and then erasing them

forever once read by the recipient. Such apps, according to an

4

article appearing in the Wall Street Journal just four days after

President Trump’s inauguration, were being used by White

House staff “to communicate with each other about presidential

or federal business.” Complaint for Declaratory, Injunctive, and

Mandamus Relief ¶ 50 (citing Mara Gay, Messaging App Has

Bipartisan Support Amid Hacking Concerns, Wall Street

Journal (Jan. 24, 2017), https://www.wsj.com/articles/messag

ing-app-has-bipartisan-support-amid-hacking-concerns-14852

15028); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007) (“accept[ing] all factual allegations in the

complaint as true” at the motion-to-dismiss stage).

This and other similar accounts piqued the interest of

several members of the Oversight and Government Reform

Committee of the U.S. House of Representatives, who sent a

letter to White House Counsel expressing their concern that the

use of message-deleting apps “could result in the creation of

presidential or federal records that would be unlikely or

impossible to preserve.” Letter from Jason Chaffetz, Chairman

& Elijah E. Cummings, House Oversight Committee to Donald

McGahn, Counsel to the President 2 (Mar. 8, 2017). They

asked Counsel to “[i]dentify policies and procedures currently

in place to ensure all communications related to the creation or

transmission of presidential records . . . are . . . preserved as

presidential records.” Id. at 3. In response, a White House

official assured the members that the President was “committed

to preserving records of activities” relating to his

“constitutional, statutory or other official or ceremonial

duties.” Letter from Marc T. Short, Assistant to the President

to Jason Chaffetz & Elijah E. Cummings, House Oversight

Committee 1 (Apr. 11, 2017) (“Short Letter”). “All White

House employees,” the official added, “have been trained on

their responsibilities under the PRA,” id. at 1, and the Office of

the Counsel to the President “provides written guidance to

inform employees of PRA requirements,” id. at 2.

5

Though it was not public at the time, in February 2017, as

press attention to the messaging practice spread and before this

lawsuit commenced, White House Counsel circulated an

internal memo describing the staff’s PRA obligations

(“February 2017 Memo”). See generally Memorandum for All

Personnel Regarding Presidential Records Act Obligations

(Feb. 22, 2017), https://go.usa.gov/xEckn (National Archives).

Subsequently released pursuant to the Freedom of Information

Act, the Memo prohibits the use of “instant messaging systems

. . . or other internet-based means of electronic communication

to conduct official business,” and directs White House

personnel to “conduct all work-related communications on

[their] official . . . email account[s]” and to “preserve electronic

communications that are presidential records.” Id. at 2–3. On

the same day the Memo issued, White House Counsel sent a

“Compliance Reminder Email” advising staff that the “[u]se of

. . . messaging apps (such as Snapchat, Confide, Slack or

others) . . . is not permitted” for any “work-related

communications.” See Email from White House Counsel at 2

(Feb. 22, 2017), https://www.archives.gov/files/foia/

Passantino%20Email%201%20of%202_redacted.pdf

(National Archives).

The House Oversight Committee was not the only group

troubled by the White House’s use of message-deleting apps.

Alleging that “White House staff who use such apps cannot be

in compliance with the PRA,” Appellants’ Br. 29, CREW sued,

seeking a writ of mandamus compelling the president and the

Executive Office (collectively, the “White House”) to comply

with their ostensibly “non-discretionary duties” under the

statute: to categorize records as presidential or personal; to

follow certain procedures, including notifying the Archivist,

before disposing of records; and to implement record

management guidelines. See generally Swan v. Clinton, 100

F.3d 973, 977 (D.C. Cir. 1996) (explaining that to qualify for

6

mandamus relief a plaintiff must identify a non-discretionary

or “ministerial” duty). CREW also sought a declaration that the

White House’s knowing use of message-deleting apps and its

failure to issue guidelines concerning such apps violate the

PRA.

The district court, focusing only on the duty to implement

record management guidelines, concluded that nothing in the

PRA “obligates the President to perform any duty with the

requisite level of specificity that mandamus requires.” Citizens

for Responsibility & Ethics in Washington v. Trump, 302 F.

Supp. 3d 127, 136 (D.D.C. 2018). Because CREW had

therefore “failed to state a valid mandamus claim,” the court

granted the White House’s motion to dismiss. Id. at 137.

CREW moved to alter or amend the judgment pursuant to

Federal Rule of Civil Procedure 59(e), pointing out that the

district court had not addressed whether the use of message-

deleting apps violated the other two duties identified in the

complaint (records categorization and pre-disposal

notification). The court denied the motion. Finding that CREW

had failed to develop those arguments in the complaint and

opposition to the motion to dismiss, the court concluded that

“CREW forfeited its arguments that either of the two duties it

now points to . . . are ministerial duties supporting a mandamus

claim.” Citizens for Responsibility & Ethics in Washington v.

Trump, No. 17-1228, slip op. at 2 (D.D.C. June 25, 2018). And

even if not forfeited, the district court explained, those

arguments were “unavailing” as “[n]owhere does the [PRA]

specifically prohibit the use of any particular means of

communication.” Id. at 3.

CREW appeals both decisions. “We review the threshold

requirements for mandamus jurisdiction de novo.” American

Hospital Ass’n v. Burwell, 812 F.3d 183, 190 (D.C. Cir. 2016);

7

see also King v. Jackson, 487 F.3d 970, 972 (D.C. Cir. 2007)

(reviewing de novo a grant of a motion to dismiss).

II.

“[T]he remedy of mandamus is a drastic one, to be invoked

only in extraordinary situations.” Allied Chemical Corp. v.

Daiflon, Inc., 449 U.S. 33, 34 (1980). In order to obtain

mandamus relief, a plaintiff must demonstrate (1) a “clear and

indisputable right to relief,” (2) that the government official has

a “clear duty to act,” and (3) that “no adequate alternative

remedy exists.” American Hospital, 812 F.3d at 189. “These

three threshold requirements are jurisdictional; unless all are

met, a court must dismiss the case for lack of jurisdiction.” Id.;

see also Montrois v. United States, 916 F.3d 1056, 1060 (D.C.

Cir. 2019) (observing that the court “must assure [itself] of the

existence of jurisdiction”).

In order to satisfy the first requirement at this stage of the

litigation, i.e. motion to dismiss, CREW must plausibly allege

that the White House is, in effect, defying the law. See In re

Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013) (granting

mandamus relief because “the Commission [wa]s simply

defying a law enacted by Congress, and the Commission [wa]s

doing so without any legal basis”); see generally Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (At the motion-to-dismiss

stage, a court must “determine whether [the facts alleged]

plausibly give rise to an entitlement to relief.”). CREW has

failed to do so for two interrelated reasons. First, by issuing the

February 2017 Memo, the White House has instructed its staff

to comply with the PRA, and it has done so by prohibiting the

use of message-deleting apps and restricting electronic

communications to official email accounts that automatically

preserve records. To be sure, the Memo may not guarantee full

compliance with the PRA, but—and this is the second reason—

under the law of this circuit we would have no jurisdiction to

8

order the correction of any defects in the White House’s day-

to-day compliance with the Memo’s records-preservation

policy.

We begin with the February 2017 Memo, which White

House Counsel prepared and distributed for the very purpose

of “remind[ing] all personnel of their obligation to preserve and

maintain presidential records, as required by the Presidential

Records Act.” February 2017 Memo, at 1. The Memo

summarizes the statute, “outlines what materials constitute

‘presidential records,’” distinguishes between “presidential”

and “[p]urely personal” records, id. at 2, and describes “what

steps [personnel] must take to ensure [presidential records’]

preservation,” id. at 1. The Memo prohibits the use of

unofficial “internet-based means of electronic

communications” and “instant messaging systems,” and it

requires personnel to “preserve electronic communications that

are presidential records” and to use official email accounts for

“all work-related communications.” Id. at 2–3. And finally, the

Memo forbids White House personnel from “dispos[ing] of

presidential records,” warning that “[a]ny employee who

intentionally fails to take these actions may be subject to

administrative or even criminal penalties.” Id. at 3. In short, the

Memo does just what the PRA requires.

CREW insists that we may not consider the February 2017

Memo at this motion-to-dismiss stage of the litigation. See

Hurd v. District of Columbia, 864 F.3d 671, 675 (D.C. Cir.

2017) (finding that “the district court erred in dismissing [a]

claim based on material beyond the complaint, and not

incorporated by reference in it”). We disagree: the Memo is

clearly subject to judicial notice. See Kaspersky Lab, Inc. v.

United States Department of Homeland Security, 909 F.3d 446,

464 (D.C. Cir. 2018) (“Among the information a court may

consider on a motion to dismiss are public records subject to

9

judicial notice.” (internal quotation marks omitted)). Indeed,

the Memo represents the White House’s official position, it is

publicly available on the National Archives’ website, and

CREW nowhere challenges its authenticity.

CREW argues that even if the February 2017 Memo may

be considered, it fails to satisfy the three PRA obligations at

issue in this case. We address each in turn, assuming for the

sake of discussion that CREW has preserved its claims and that

each of the three PRA obligations at issue creates a non-

discretionary “duty to act.” American Hospital, 812 F.3d

at 189.

CREW’s first argument focuses on the statutory duty to

“categorize[]” records. 44 U.S.C. § 2203(b). “Because

message-deleting apps automatically and instantaneously

delete messages after a recipient reads them,” CREW argues,

“they preclude any categorization of records.” Appellants’

Br. 36. But the February 2017 Memo responds to this concern

by directing staff to use official email accounts that

“automatically archive[]” communications rather than

unofficial “internet-based means of electronic

communications,” a category that clearly encompasses

message-deleting apps. February 2017 Memo, at 2–3. Indeed,

the simultaneously-issued Compliance Reminder Email—of

which we also take judicial notice—expressly prohibits

message-deleting apps “such as Snapchat [and] Confide,”

Compliance Reminder Email, at 2, and the February 2017

Memo directs that if White House personnel ever generate or

receive presidential records on such platforms they “must

preserve [the messages] by sending them to [an official] email

account via a screenshot or other means,” February 2017

Memo, at 3; see also Oral Argument 41:20–41:44 (CREW’s

counsel conceding that it is possible to take pictures of

messages received on message-deleting apps before the

10

messages disappear). And having required the preservation of

all communications, the Memo directs staff to comply with the

PRA’s categorization requirement: “electronic communications

that are presidential records” “must [be] preserve[d],” but

“[p]urely personal records . . . do not need to be preserved.”

February 2017 Memo, at 2.

CREW’s second argument—that the use of message-

deleting apps violates the President’s duty to follow certain

notification procedures before disposing of records, see 44

U.S.C. § 2203(c)–(e) (pre-disposal notification

requirements)—fails for the same reason: the February 2017

Memo and the Compliance Reminder Email prohibit the use of

message-deleting apps. To be sure, the Memo says nothing

about the PRA’s notification requirement, but it expressly

forbids White House personnel from “dispos[ing] of

presidential records,” February 2017 Memo, at 3, and CREW

has pointed to nothing suggesting that, after the initial

preservation of emails via automatic archiving, the White

House will violate the PRA’s pre-disposal notification

procedures.

Third, CREW claims that the President has failed to

“implement . . . records management controls.” 44 U.S.C.

§ 2203(a). But by distributing the February 2017 Memo, which

instructs personnel on which devices to “conduct” their work

and which records to “preserve,” February 2017 Memo, at 2,

the White House has implemented a form of records

management controls for presidential records.

Citing recent articles alleging that White House personnel

have continued using message-deleting apps even after

issuance of the February 2017 Memo, CREW alleges that the

Memo has proved ineffective in bringing the White House into

compliance with the PRA. It may well be, as CREW puts it,

11

that questions about “what is actually happening in the White

House,” Appellants’ Reply Br. 11, remain unanswered. But

these types of “open questions” regarding the precise scope and

effect of the facially PRA-compliant February 2017 Memo “are

the antithesis of the ‘clear and indisputable’ right needed for

mandamus relief.” In re Al-Nashiri, 835 F.3d 110, 137 (D.C.

Cir. 2016) (quotation marks omitted); see In re Bluewater

Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (observing that

mandamus relief is “reserved only for the most transparent

violations” of duties to act).

The February 2017 Memo unquestionably speaks to the

White House’s efforts to satisfy the President’s PRA

obligations, and in its brief here the White House confirms

what the Compliance Reminder Email makes explicit: that the

Memo “covers the kinds of messaging applications at issue.”

Appellees’ Br. 17; see also In re Khadr, 823 F.3d 92, 98 (D.C.

Cir. 2016) (denying mandamus based on the government’s

representations that it was complying with statutory prohibition

against “attempt[ing] to coerce” a military judge (internal

quotation marks omitted)). Given this, not to mention other

steps the White House has taken, such as mandatory PRA

training, see Short Letter, at 2 (“All White House personnel

have received or will receive mandatory in-person training on

their obligations under the PRA.”), we have no basis for saying

that the President “is simply defying a law enacted by

Congress,” In re Aiken County, 725 F.3d at 266.

This brings us to the second and related obstacle to

mandamus relief: even if, as CREW alleges, the February 2017

Memo is imperfectly enforced, we would lack jurisdiction to

order the White House to take corrective action. That

proposition flows not just from the nature of mandamus—the

violation must be “clear and indisputable,” American Hospital,

812 F.3d at 189—but also directly from this court’s two key

12

PRA precedents, Armstrong v. Bush (Armstrong I), 924 F.2d

282 (D.C. Cir. 1991), and Armstrong v. Executive Office of the

President (Armstrong II), 1 F.3d 1274 (D.C. Cir. 1993) (per

curiam).

In Armstrong I, the plaintiffs, fearing that then-President

George H.W. Bush was mishandling presidential and federal

records from the tail end of the Reagan Administration, alleged

that Bush’s “inten[tion] to delete material from the White

House computer systems” ran afoul of the PRA and other

statutes. 924 F.2d at 286. We dismissed those claims, holding

that given “the intricate statutory scheme Congress carefully

drafted to keep in equipoise important competing political and

constitutional concerns,” id. at 290, “the PRA precludes

judicial review of the President’s recordkeeping practices and

decisions,” id. at 291.

Two years later, the case returned to our court, this time

focusing (in part) on guidelines issued by the White House to

distinguish between presidential and federal records. The

plaintiffs alleged that the guidelines violated FOIA and the

Federal Records Act because they classified federal records,

generally subject to immediate public release, see 5 U.S.C.

§ 552 (FOIA record publication provisions), as presidential

records, which, pursuant to the PRA, do not become eligible

for release until five years after the President leaves office (or

later if the documents contain certain sensitive material), see

Armstrong II, 1 F.3d at 1290–91 (comparing the two regimes).

We rejected the government’s argument that Armstrong I

barred this claim, explaining that the case “does not stand for

the unequivocal proposition that all decisions made pursuant to

the PRA are immune from judicial review.” Id. at 1293. Quite

to the contrary, when determining whether the Executive’s

definition of “presidential records” subverts FOIA by labeling

as “presidential” those federal records that are otherwise

13

subject to immediate public release, we have authority to

“review guidelines outlining what is, and what is not, a

‘presidential record.’” Id. at 1294.

CREW and the White House have very different views

about the implications of Armstrong I and II for this case.

CREW interprets Armstrong II as authorizing courts to review

“the Executive’s ability to exempt an entire class of records

(those created on message-deleting applications) from the

PRA’s reach.” Appellants’ Reply Br. 23. By contrast, the

White House argues that the Armstrong decisions prohibit

courts from reviewing any “claims that the President failed to

comply with requirements of the [PRA].” Appellees’ Br. 8. But

we need not resolve that debate because even CREW agrees

that when it comes to compliance with the PRA, courts have no

jurisdiction to review the President’s “day-to-day operations.”

Appellants’ Reply Br. 23. As Armstrong I makes clear—and

Armstrong II nowhere casts in doubt—when enacting the PRA,

“Congress . . . sought assiduously to minimize outside

interference with the day-to-day operations of the President.”

Armstrong I, 924 F.2d at 290. That, however, is precisely what

CREW now asks us to do. Determining whether White House

personnel are in fact complying with the directive to conduct

all work-related communication on official email would

require just the kind of micromanaging proscribed by

Armstrong I.

Together, then, the February 2017 Memo and Armstrong I

establish that CREW has no “clear and indisputable right to

[mandamus] relief,” American Hospital, 812 F.3d at 189, thus

depriving this court of jurisdiction, see Walpin v. Corp. for

National & Community Services, 630 F.3d 184, 187 (D.C. Cir.

2011) (denying mandamus because the President had

“satisfie[d] the minimal statutory mandate”); cf. In re Aiken

County, 725 F.3d at 266 (granting mandamus because, despite

14

several warnings, an agency had steadfastly refused to heed a

clear statutory mandate). Given that CREW has failed at the

threshold requirement of mandamus, we have no need to

address the remaining two. See In re Trade & Commerce Bank,

890 F.3d 301, 303 (D.C. Cir. 2018) (per curiam) (explaining

that where the plaintiff has no clear and indisputable right to

relief, the court may “begin and end with the first” of the three

mandamus requirements).

This resolution also disposes of CREW’s claims for

declaratory relief. For the same reasons that we decline to

“resort to mandamus” to micromanage the President’s day-to-

day compliance with the PRA, we shall “not entertain [a claim]

for declaratory relief.” Cartier v. Secretary of State, 506 F.2d

191, 200 (D.C. Cir. 1974).

III.

For the foregoing reasons, we affirm.

So ordered.