IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 13-cv-1363 (EGS) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) ) JUDICIAL WATCH’S MOTION FOR RELIEF AND REQUEST FOR HEARING Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by counsel, respectfully moves pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure for relief from the March 14, 2014 stipulation of dismissal and reopen this matter for further, appropriate proceedings. This motion is timely because it is being filed within a year of the stipulation of dismissal. Sack v. Central Intelligence Agency, No. 12-cv-00244, 2014 U.S. Dist. LEXIS 93529, *58 (D.D.C. July 10, 2014). Undersigned counsel for Judicial Watch conferred with counsel for Defendant U.S. Department of State (“State Department” or “Department”), who stated that the Department “does not oppose reopening the case in this particular circumstance, but does oppose the specific relief sought, and will be filing a response detailing its position.” In addition, pursuant to LCvR 7(f), Judicial Watch requests an oral hearing on this motion. As grounds therefor, Judicial Watch states as follows: Case 1:13-cv-01363-EGS Document 13 Filed 03/12/15 Page 1 of 10
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-1363 (EGS)
)
U.S. DEPARTMENT OF STATE, )
)
Defendant. )
)
JUDICIAL WATCH’S MOTION
FOR RELIEF AND REQUEST FOR HEARING
Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by counsel, respectfully moves pursuant
to Rule 60(b)(3) of the Federal Rules of Civil Procedure for relief from the March 14, 2014
stipulation of dismissal and reopen this matter for further, appropriate proceedings. This motion
is timely because it is being filed within a year of the stipulation of dismissal. Sack v. Central
Intelligence Agency, No. 12-cv-00244, 2014 U.S. Dist. LEXIS 93529, *58 (D.D.C. July 10,
2014). Undersigned counsel for Judicial Watch conferred with counsel for Defendant U.S.
Department of State (“State Department” or “Department”), who stated that the Department
“does not oppose reopening the case in this particular circumstance, but does oppose the specific
relief sought, and will be filing a response detailing its position.” In addition, pursuant to LCvR
7(f), Judicial Watch requests an oral hearing on this motion. As grounds therefor, Judicial Watch
states as follows:
Case 1:13-cv-01363-EGS Document 13 Filed 03/12/15 Page 1 of 10
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MEMORANDUM OF LAW
I. Introduction.
On or about March 2, 2015, the New York Times reported that Hillary Clinton used at
least one non-“state.gov” email account to conduct official government business while serving as
U.S. Secretary of State. It also was reported that Secretary Clinton stored these records on an
email server at her home in Chappaqua, New York, sometime in 2014 unilaterally determined
which of these emails were official government records, and only returned approximately 55,000
pages of these records to the State Department in December 2014. Senior State Department
officials, including Secretary Clinton’s deputy chief of staff, Huma Abedin, also reportedly used
non-“state.gov” email accounts to conduct official government business. Such emails are
quintessential agency records subject to the Freedom of Information Act (“FOIA”), and the State
Department’s failure to retain and records-manage these quintessential agency records directly
impacts the Department’s response to FOIA requests.
Judicial Watch submits FOIA requests to the State Department regularly, and the March
2, 2015 report was the first time Judicial Watch learned that the Department’s responses to
Judicial Watch’s requests may have been compromised. Because the FOIA request at issue in
this litigation included communications of Secretary Clinton and Ms. Abedin, Judicial Watch
seeks to reopen this litigation to remedy the Department’s failure to retain, records-manage, and
search for these records. The State Department should be required to search the 55,000 pages of
emails returned by Secretary Clinton, conduct additional, broader searches for responsive records
that may not have been captured by earlier searches, and otherwise remedy any spoliation.
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II. Factual and Procedural Background.
Ms. Huma Abedin served as a senior aide to Secretary Clinton during her entire tenure as
secretary. Ms. Abedin was Deputy Chief of Staff for Operations in the Immediate Office of the
Secretary from January 22, 2009 to June 2, 2012. On June 3, 2012, Ms. Abedin became a senior
advisor in the same office. In this position, Ms. Abedin was classified as a special government
employee, who was authorized to represent individual clients and engage in outside employment.
Ms. Abedin held this position until February 15, 2013, when then-Senator John Kerry became
Secretary of State.
On May 21, 2013, Judicial Watch submitted a FOIA request to the State Department
seeking records about Ms. Abedin’s classification as a special government employee.
Specifically, Judicial Watch sought copies of the following agency records:
A. Any and all SF-50 (Notification of Personnel Action) forms
for Ms. Huma Abedin;
B. Any and all contracts (including, but not limited to,
personal service contracts) between the Department of
State and Ms. Huma Abedin; and
C. Any and all records regarding, concerning, or related to the
authorization of Ms. Huma Abedin to represent individual
clients and/or otherwise engage in outside employment
while employed by and/or engaged in a contractual
arrangement with the Department of State.
See Complaint, ECF Document No. 1 (filed Sept. 10, 2013) at ¶ 5. Item C of the request clearly
implicated email communications not only of Ms. Abedin, but also of Secretary Clinton.
When the State Department failed to provide a final determination on the request within
the statutory timeframe, Judicial Watch filed suit. See Joint Statement Regarding Briefing
Schedule, ECF Document No. 11 (filed Dec. 27, 2013) at 1. The State Department answered,
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and, on December 27, 2013, the parties filed a joint meet and confer statement. Id. In the joint
statement, the State Department represented that it was processing Judicial Watch’s FOIA
request and that it would complete its processing of the request by February 14, 2014. Id.
By letter dated February 12, 2014, the State Department represented to Judicial Watch
that it had completed processing the request. February 12, 2014 Letter from Sheryl L. Walter to
Sean A. Dunagan.1 Specifically, the State Department represented that it had completed searches
of the following records systems:
A. The Central Foreign Policy Records;
B. The Bureau of Human Resources;
C. The Office of the Executive Secretariat; and
D. The Office of Legal Advisor.
Id. Approximately 8 pages of responsive records were produced. Id.
Based on the State Department’s representation that it had searched these record systems
– and in particular the Office of the Executive Secretariat where records of Secretary Clinton and
Ms. Abedin were most likely to be found – Judicial Watch did not challenge the Department’s
final determination. Relying on the State Department’s representations about its search, Judicial
Watch agreed to a stipulated dismissal on March 14, 2014. See Stipulation of Dismissal with
Prejudice, ECF Document No. 12 (filed Mar. 14, 2014) at 1.
III. Argument.
Pursuant to Rule 60(b)(3), a party may seek relief from a judgment, order or proceeding
for “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party.” Fed. R. Civ. P. 60(b)(3). To obtain relief, the moving party must establish
1 The letter is attached as Exhibit A to this motion.
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fraud, misrepresentation, or misconduct by clear and convincing evidence, as well as resulting
prejudice. Sack, 2014 U.S. Dist. LEXIS at *59.
As noted above, the State Department represented that it searched the Office of the
Executive Secretariat in response to Judicial Watch’s May 21, 2013 request. The Office of the
Executive Secretariat “maintains centralized records of the Secretary of State and of certain other
high-ranking Department officials.” See Declaration of Celeste Houser-Jackson, 2
submitted in
support of the U.S. Department of State’s Motion for Summary Judgment in Anderson v. U.S.
Department of State, Case No. 09-cv-00569 (D.D.C. Mar. 26, 2009) at ¶ 12; see also Declaration
of John F. Hackett,3 submitted in support of the U.S. Department of State’s Motion for Summary
Judgment in O’Brien v. U.S. Department of State, Case No. 14-cv-00119 (D.D.C. Jan. 30, 2014)
at ¶ 46 (The Office of the Executive Secretariat “is generally responsible for coordinating search
responses for the Office of the Secretary of State, the Office of the Deputy Secretary of State, the
Office of the Under Secretary for Political Affairs, the Office of Policy Planning, and the
Counselor of the Department.”). In addition, the Office of the Executive Secretariat generally
conducts searches of email accounts of certain officials and employees of the Immediate Office
of the Secretary. Id. at ¶ 48. A search of the Office of the Executive Secretariat, therefore,
includes a search of emails received or sent by officials or employees of the Immediate Office of
the Secretary, which would include Secretary Clinton and Ms. Abedin.
It is now clear that Secretary Clinton’s emails were not searched for records responsive to
Judicial Watch’s FOIA request. Secretary Clinton used at least one non-“state.gov” email
address to conduct official State Department business. See Michael S. Schmidt, Hillary Clinton
2 The declaration is attached as Exhibit B to this motion.
3 The declaration is attached as Exhibit C to this motion.
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Used Personal Email Account at State Dept., Possibly Breaking Rules, The New York Times
(Mar. 2, 2015) (available at http://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-
of-private-email-at-state-department-raises-flags.html). While the State Department may now
have access to as many as 55,000 pages of Secretary Clinton’s emails, these emails were not
readily accessible for review by the Department until at least December 2014. Id. (“It was only
two months ago . . . that Mrs. Clinton’s advisors reviewed tens of thousands of pages of her
personal emails and decided which ones to turn over to the State Department.”).
It also has been reported that other State Department officials or employees, including
Ms. Abedin, may have used email addresses other than their assigned “state.gov” email
addresses to conduct official State Department business. See e.g., Amy Chozick and Steve Eder,
Membership in Clinton’s Email Domain Is Remembered as a Mark of Status, The New York
Times (Mar. 4, 2015) (available at http://www.nytimes.com/2015/03/05/us/politics/
membership-in-clintons-email-domain-is-remembered-as-a-mark-of-status.html). To the extent
that other officials or employees of the Immediate Office of the Secretary, including Ms. Abedin,
used non-“state.gov” email addresses to conduct official government business, those emails also
obviously would not have been searched in response to Judicial Watch’s request.
The State Department had an obligation under the Federal Records Act to properly
preserve, maintain, and make available for retrieval records of its official functions.4 In fact, it is
the obligation of the head of every federal agency to do so. See, e.g., American Friends Service
Committee v. Webster, 720 F.2d 29, 38 (D.C. Cir. 1983). “Each head of an agency is to develop
a program for records management, including provisions for cooperation with the Archivist, ‘in
4 Since 1995, this obligation has applied to emails. See 5 FAM 443.1(a) (Emails “must be
properly stored and preserved, available for retrieval and subject to appropriate approved
disposition schedules.”).
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