Case 1:13-cv-01363-EGS Document 13 Filed 03/12/15 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,
v.
U.S. DEPARTMENT OF STATE,
Defendant.

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Civil Action No. 13-cv-1363 (EGS)

JUDICIAL WATCHS 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:

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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 Clintons 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
Departments failure to retain and records-manage these quintessential agency records directly
impacts the Departments 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 Departments responses to
Judicial Watchs 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 Departments 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. Abedins 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 Watchs 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 Departments 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 Departments
final determination. Relying on the State Departments 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 Watchs 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 States 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 States Motion for Summary
Judgment in OBrien 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 Clintons emails were not searched for records responsive to
Judicial Watchs 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
3

The declaration is attached as Exhibit B to this motion.

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-useof-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 Clintons 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. Clintons 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 Clintons 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 Watchs 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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applying standards, procedures, and techniques. Id. (quoting 44 U.S.C. 3102(2)). Secretary
Clinton plainly violated her own legal obligations. Doing so was misconduct.
Moreover, the State Department cannot claim it was unaware of the Secretarys failure to
properly store and records-manage email. Not only should knowledge of this failure be imputed
to the State Department through Secretary Clinton, but any State Department employee who sent
or received an email to or from Secretary Clinton which presumably would have included high
level officials must have known that they were communicating with the Secretary through a
non-state.gov email address. It is incomprehensible that the State Department did not know,
when it completed its search for records responsive to Judicial Watchs request in February
2014, that records in the Office of the Executive Secretariat did not include emails of Secretary
Clinton and other officials and employees of the Department using non-state-gov email
addresses.
To the extent that Secretary Clinton used her non-state.gov email address to
communicate with State Department employees who used state.gov email addresses, it is of no
consequence that these other, unknown employees emails may have been properly stored and
records-managed.5 These emails would not necessarily be captured by a search of the Office of
the Executive Secretariat. The State Department would have to conduct agency wide searches to
5

A similar assertion was criticized recently in FOIA litigation regarding the email of
former Environmental Protection Agency Administrator Lisa Jackson: When [the requestor]
confronted Jackson with evidence that she did, on at least one occasion, use her personal email
account and Blackberry to conduct government business without forwarding the message to
her secondary EPA account . . . Jackson responded that there was no need to do so because the
email included other [EPA] government accounts as recipients, and thus would be preserved.
Of course, carving exceptions into a standard practice is a slippery slope. Landmark Legal
Foundation v. Environmental Protection Agency, Case No. 12-1726, 2015 U.S. Dist. LEXIS
24620, **33-34 (D.D.C. Mar. 2, 2015). This case is more egregious than Landmark Legal
Foundation because Secretary Clinton exclusively used her non-state.gov account.
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respond properly to any records request, which the Department did not do here. Obviously,
such searches also would not capture email sent outside the Department.
Because Judicial Watch sought records concerning Ms. Abedin, a senior aide to the
Secretary, it is reasonable to conclude that emails sent or received by Secretary Clinton exist that
may be responsive to Judicial Watchs request. Moreover, it is more than reasonable to conclude
that Ms. Abedin sent or received emails related to her change in employment. The State
Department plainly did not conduct a search for the requested records, using methods which can
be reasonably expected to produce the information requested. Nation Magazine v. United
States Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995). Despite knowing that the emails of
Secretary Clinton, and likely the emails of Ms. Abedin and other high level officials, were not
searched, the State Department represented to Judicial Watch that the records of the Executive
Secretariat had been searched. At no point did the State Department inform Judicial Watch that
the Secretarys emails and the emails of Ms. Abedin and other high level officials could not be
searched. These were misrepresentations.
Judicial Watch relied upon the State Departments misrepresentation that it conducted a
search of the Office of the Executive Secretariat. It was lead to believe that the State
Departments search was proper. It now knows it was not. Had Judicial Watch known that the
State Departments search excluded Secretary Clintons emails and the emails of Ms. Abedin and
other high level officials, Judicial Watch would not have stipulated to the dismissal of this case
at that time.

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Judicial Watch has plainly been prejudiced. Obviously, a proper search was not
conducted, and any spoliation of responsive documents is prejudicial.6 Landmark Legal
Foundation, 2015 U.S. Dist. LEXIS at **18-20. Judicial Watch also is prejudiced because, if
this case is not reopened, it will be required to re-submit and (most likely) re-litigate the same
FOIA request to force the State Department to search for and produce records that should have
been searched for and produced previously. At a minimum, the State Department should be
required to search the 55,000 pages of emails it recently received from Secretary Clinton for
information responsive to Judicial Watchs FOIA request. The State Department should also be
required to conduct additional, broader searches beyond the Office of the Executive Secretariat
and other previously searched record systems for responsive emails that may have been sent or
received by Secretary Clinton, Ms. Abedin, and other officials who did not use state.gov email
accounts and may not have been captured by the previous searches. Finally, the State
Department should be required to undertake efforts to remedy any spoliation, submit declarations
describing its further efforts to locate and produce responsive records, and submit to any other,
additional relief deemed appropriate.
IV.

Conclusion.
For the above reasons, Judicial Watch respectfully requests that the Court relieve Judicial

Watch from the March 14, 2014 stipulation of dismissal and reopen this matter for further,
appropriate proceedings.
6

With regard to any possible spoliation, time is of the essence. Secretary Clinton has
indicated that she has chosen not to preserve all of her emails sent or received by her through the
email address that she used exclusively to conduct official State Department business. See Glenn
Thrush and Josh Gerstein, Hillary meets the press: Clinton said she had used a personal email
account at the State Department for convenience, Politico (Mar. 10, 2015) (available at
http://www.politico.com/story/2015/03/hillary-clinton-address-email-controversy-115903.html).
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Dated: March 12, 2015

Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha (D.C. Bar No. 995749)
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, DC 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.

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Exhibit A

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Exhibit B

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Exhibit C

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