United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2016 Decided December 27, 2016 

No. 16-5015 

JUDICIAL WATCH, INC., ET AL., 

APPELLANTS

v. 

JOHN F. KERRY, IN HIS OFFICIAL CAPACITY AS U.S.

SECRETARY OF STATE, ET AL., 

APPELLEES 

Consolidated with 16-5060, 16-5061, 16-5077 

Appeals from the United States District Court 

for the District of Columbia 

(No. 1:15-cv-00785) 

(No. 1:15-cv-01068) 

John J. Vecchione argued the cause for appellants. With 

him on the briefs were Alfred J. Lechner Jr., Daniel Z. 

Epstein, R. James Valvo III, and James F. Peterson. 

Daniel Tenny, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the briefs were 

Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, and Matthew M. Collette. 
2

Before: KAVANAUGH and WILKINS, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Secretary of State 

Clinton used private email accounts during her time at the 

State Department. As a result, some emails were not 

preserved in government recordkeeping systems. Although 

the current Secretary (with the help of the National Archivist) 

has made efforts to recover those emails, neither the Secretary 

nor the Archivist has asked the Attorney General to initiate 

enforcement proceedings, as provided for in the Federal 

Records Act. Because those officials would not refer the 

matter to the Attorney General on their own, appellants 

Judicial Watch and Cause of Action Institute (henceforth the 

“appellants” except where a distinction is necessary) sued for 

agency action unlawfully withheld in violation of § 706(1) of 

the Administrative Procedure Act. The district court 

dismissed their suits as moot. Judicial Watch, Inc. v. Kerry, 

156 F. Supp. 3d 69 (D.D.C. 2016). But since the current 

Secretary and Archivist have neither asked the Attorney 

General for help nor shown that such a request could not lead 

to recovery of additional emails, the suits were not moot. 

Accordingly, we reverse and remand for further proceedings. 

* * * 

The Federal Records Act “governs the creation, 

management and disposal of federal records.” Armstrong v. 

Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). Due to the 

importance of maintaining federal records (which are 

generally accessible to the public through the Freedom of 

Information Act), the act strictly limits the circumstances 

under which records can be removed from federal custody or 
3

destroyed. 44 U.S.C. § 3105(1). If the relevant agency head 

becomes aware of “any actual, impending, or threatened 

unlawful removal . . . or [] destruction of [agency] records,” 

he or she “shall notify the Archivist . . . and with the 

assistance of the Archivist shall initiate action through the 

Attorney General for the recovery of [those] records.” 44 

U.S.C. § 3106(a). If the agency head fails to “initiate an 

action for such recovery or other redress within a reasonable 

period of time,” “the Archivist shall request the Attorney 

General to initiate such an action” and shall notify Congress 

of that request. Id. § 3106(b). Although there may be 

ambiguities in § 3106(a)’s mandate to “initiate action through 

the Attorney General,” our decision in Armstrong made clear 

that § 3106 encompasses at least a duty to “ask the Attorney 

General to initiate legal action.” 924 F.2d at 295. For present 

purposes that is enough, as it appears that the judicial relief 

appellants now seek is an order requiring the current Secretary 

and the Archivist to do just that. 

After news of the former Secretary’s private accounts 

broke, the State Department began taking steps to recover her 

emails. Through various letters to her counsel, the 

Department asked the former Secretary to provide copies of 

her work-related emails. In response to those letters, the 

former Secretary produced (in hard copy) roughly 55,000 

pages of emails from the private server account. And upon 

learning that the FBI had taken custody of Clinton’s private 

server and a thumb drive containing electronic copies of the 

emails she had previously produced, the Department also 

asked the FBI to provide it with a copy of those records. 

But because neither the current Secretary nor the 

Archivist asked the Attorney General to initiate an 

enforcement action, appellants sued to compel that request. 

The district court, citing the Armstrong opinion’s statement 

that private litigants may bring suit “if the agency head or 
4

Archivist does nothing while an agency official destroys or 

removes records in contravention of agency guidelines and 

directives,” 924 F.2d at 295 (emphasis added), reasoned that a 

plaintiff’s ability to “compel a referral to the Attorney 

General . . . is limited to those circumstances in which an 

agency head and Archivist have taken minimal or no action to 

remedy the removal or destruction of federal records.” 

Judicial Watch, 156 F. Supp. 3d at 76. Since the State 

Department and Archivist had made a “sustained effort” to 

recover the missing emails, the district court concluded that 

there was no “dereliction of duty” and dismissed the suits as 

moot. Id. at 77. Appellants timely appealed. 

* * * 

Although the Federal Records Act does not contain an 

express or implied private right of action, Kissinger v. 

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 

148-150 (1980), the Administrative Procedure Act permits a 

claim “that an agency failed to take a discrete agency action 

that it is required to take.” Norton v. S. Utah Wilderness All., 

542 U.S. 55, 64 (2004); 5 U.S.C. § 706(1). The recovery 

provisions of the Federal Records Act fit that bill because they 

“leave [the agency head and Archivist] no discretion to 

determine which cases to pursue.” Armstrong, 924 F.2d at 

295. While nothing in § 3106 prevents the agency from first 

attempting its own remedial measures (rather than 

immediately rushing to the Attorney General), id. at 296 n.12, 

the statute “requires the agency head and Archivist to take 

enforcement action” through the Attorney General if those 

efforts are unsuccessful, id. at 295. We therefore held in 

Armstrong that if “the agency head does not initiate an 

enforcement action [through the Attorney General] ‘within a 

reasonable period of time,’ the Archivist ‘shall request the 

Attorney General to initiate such an action.’” Id. (citing 

§ 3106). Armstrong involved a threatened destruction of 
5

records, so we framed the case in those terms, saying that, if 

the agency head and the Archivist do not take the required 

“action to prevent the unlawful destruction or removal of 

records . . . , private litigants may sue under the APA to 

require them to do so.” Id. at 296 n.12. 

As the district court’s dismissal relied exclusively on its 

finding of mootness, and not on a possible claim that the 

“reasonable period of time” referred to in Armstrong had not 

run, we focus on mootness. Where the plaintiff has recovered 

all it has sought, no court action can provide further relief and 

the case is moot. Conservation Force, Inc. v. Jewell, 733 F.3d 

1200, 1204 (D.C. Cir. 2013). In considering possible 

mootness we assume that the plaintiffs would be successful on 

the merits. See Doe v. Harris, 696 F.2d 109, 114 n.7 (D.C. 

Cir. 1982); see also City of Waukesha v. EPA, 320 F.3d 228, 

235 (D.C. Cir. 2003) (standing). The mootness inquiry here is 

straightforward. Appellants sought the only relief provided by 

the Federal Records Act—an enforcement action through the 

Attorney General. But nothing the Department did (either 

before or after those complaints were filed) gave appellants 

what they wanted. Instead of proceeding through the 

Attorney General, the Department asked the former Secretary 

to return her emails voluntarily and similarly requested that 

the FBI share any records it obtained. Even though those 

efforts bore some fruit, the Department has not explained why 

shaking the tree harder—e.g., by following the statutory 

mandate to seek action by the Attorney General—might not 

bear more still. It is therefore abundantly clear that, in terms 

of assuring government recovery of emails, appellants have 

not “been given everything [they] asked for.” Noble v. 

Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008). Absent a 

showing that the requested enforcement action could not 

shake loose a few more emails, the case is not moot. 
6

Of course the actions taken by the Department and the 

FBI might have mooted appellants’ claims by securing 

custody of all emails that the Attorney General could have 

recovered in an enforcement action. After all, the FBI now 

has custody of the former Secretary’s server and a thumb 

drive with electronic versions of the emails that were 

previously provided to the State Department in hard copy. If 

appellants had only sought emails from the server account, a 

mootness argument based on the recovery of the server might 

well succeed. But the server and the emails it housed do not 

tell the full story; Secretary Clinton used two 

nongovernmental email accounts during her tenure at the State 

Department. During her first weeks in office, she continued 

using the Blackberry account she had used as a Senator. Only 

in March of 2009 did she switch to the private email account 

hosted on the server in her New York home. 

The complaints here sought to ensure recovery all of the 

former Secretary’s work emails, including those on the 

Blackberry account. Specifically, Judicial Watch’s complaint 

demanded the recovery of any emails that Secretary Clinton 

“sent and received . . . to and from the personal email 

accounts of State Department employees.” Judicial Watch 

Compl. ¶ 6. Similarly, appellant Cause of Action Institute 

sought all emails Clinton “made or received in her capacity as 

Secretary of State or in connection with the transaction of 

public business,” and further alleged that the Federal Records 

Act did not permit her to “maintain emails on a private server 

or use a private email account” under these circumstances. 

Cause of Action Compl. ¶¶ 37-38. See also Cause of Action 

Opp. at 21-24 & Judicial Watch Opp. at 2 for references to the 

Blackberry emails in the oppositions to the motion to dismiss. 

At best, the FBI’s possession of the server (plus various 

electronic and hard copies of related emails) addresses only 

part of those broad requests—i.e., emails from the home 

server account. Because the complaints sought recovery of 
7

emails from all of the former Secretary’s accounts,1 the FBI’s 

recovery of a server that hosted only one account does not 

moot the suits. See Schnitzler v. United States, 761 F.3d 33, 

37, 39 (D.C. Cir. 2014). While the case might well also be 

moot if a referral were pointless (e.g., because no imaginable 

enforcement action by the Attorney General could lead to 

recovery of the missing emails), the record here provides no 

factual support for finding mootness on that basis. See Noble, 

525 F.3d at 1232. 

We now want to step back and explicitly consider the 

district court’s reasoning. As we mentioned above, the court 

relied on language relating to circumstances where the 

“agency head or Archivist does nothing” while an official 

unlawfully removes or destroys records. 156 F. Supp. 3d at 

76 (quoting Armstrong, 924 F.2d at 295) (emphasis added). 

The district court saw that language as eliminating judicial 

review as soon as the agency head or Archivist took some

action to recover the missing record—here, indeed, “a 

sustained effort” (id. at 77) yielding a very substantial harvest. 

While the district court’s view is a plausible reading of that 

sentence in Armstrong, it does not account for the rest of the 

opinion. In the preceding sentence, we explained that the 

entire enforcement scheme assumes that the agency head (or 

Archivist) will actually refer cases to the Attorney General—

 

1

 To the extent the Department claims that the allegations 

forge too tenuous a link to the Blackberry emails to survive a 

motion to dismiss, it is free to make such a motion on remand. 

See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662 

(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 

Likewise, appellants would presumably also be free to flesh 

out their allegations through an amendment. See Fed. R. Civ. 

P. 15(a)(2); Foman v. Davis, 371 U.S. 178 (1962). 
8

as the statute requires—and we said that if he does not “there 

will be no effective way to prevent the destruction or removal 

of records.” Armstrong, 924 F.2d at 295. That passage alone 

makes clear that when records go missing, the something

required by the statute is a referral to the Attorney General by 

the agency head and/or the Archivist. Indeed, the remainder 

of the opinion took pains to stress that the statute “requires the 

agency head and Archivist to take enforcement action” 

through the Attorney General whenever they became aware of 

records being unlawfully removed or destroyed. Id. And we 

said that that those mandatory enforcement provisions “leave 

no discretion [for the agency] to determine which cases to 

pursue.” Id. While we recognized that sometimes an agency 

might reasonably attempt to recover its records before running 

to the Attorney General, id. at 296 n.12, we never implied that 

where those initial efforts failed to recover all the missing 

records (or establish their fatal loss), the agency could simply 

ignore its referral duty. That reading would flip Armstrong on 

its head and carve out enormous agency discretion from a 

supposedly mandatory rule. Plainly we understood the statute 

to rest on a belief that marshalling the law enforcement 

authority of the United States was a key weapon in assuring 

record preservation and recovery. 

Even though the district court dismissed the case solely 

on mootness grounds, the Department cross-appeals, asking us 

to reach the merits and hold that it satisfied its duties under 

the Federal Records Act. But, as is our general practice, we 

decline that invitation and instead remand the case so that the 

district court can consider the merits in the first instance 

(assuming the parties do not raise and the court does not 

perceive any other threshold, non-merits barrier). See Boose 

v. D.C., 786 F.3d 1054, 1059 (D.C. Cir. 2015); see also Lujan 

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) 

(jurisdictional requirements must be met at each stage of the 

litigation). (Such issues of course might include mootness 
9

itself. At oral argument, the Department pointed to actions 

that were purportedly taken after the district court decision 

(some of which may still be ongoing). See Oral Arg. 

Recording at 23:40-24:20, 35:41-37:37. But because the 

Department made no attempt to supplement the record 

regarding those actions, we have not considered them.) 

As in Armstrong, we express no opinion on whether the 

Attorney General’s action or inaction in response to a referral 

would be reviewable. 924 F.2d at 295 n.11. Nor do we 

address possible constitutional defenses that the Secretary or 

Archivist might raise to the statutory command’s constraint on 

their discretion; they have raised no such argument. 

* * * 

The judgment of the district court is 

 Reversed and remanded.