Price v. United States Department of Justice ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES PRICE,
Plaintiff,
v. Case No. 18-cv-1339 (CRC)
UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
This case began as a Freedom of Information Act (“FOIA”) dispute, in which Plaintiff,
federal inmate James Price, advanced familiar FOIA claims challenging the adequacy of the
Department of Justice’s (“DOJ”) search for records and the legitimacy of its withholdings. But
DOJ’s allegedly suspicious responses to Price’s and other inmates’ FOIA requests prompted
Price to amend his complaint, adding claims that the Attorney General and the Archivist of the
United States have been violating their statutory duties under the Federal Records Act (“FRA”)
by permitting the creation and storage of records in a manner that makes retrieving them difficult
if not impossible. Because Price believes this illicit record-keeping system might cause the
permanent loss of records relating to his and others’ criminal cases, he seeks a temporary
restraining order and preliminary injunction requiring the Attorney General and Archivist to put
an end to it and to recover any missing records. For the reasons set forth below, the Court will
deny Price’s motion.
I. Background
In June 2012, Mr. Price was convicted by a jury of knowing distribution of child
pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and knowing possession of
child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). See Minute
Entry, United States v. Price, No. 12-cr-600016-KMW, ECF No. 92 (S.D. Fla. June 29, 2012).
In 2013, he was sentenced to a prison term of 156 months, followed by 25 years of supervised
release. See Judgment, United States v. Price, No. 12-cr-600016-KMW, ECF No. 122 (S.D. Fla.
Apr. 11, 2013). Price appealed his conviction to the Eleventh Circuit, arguing among other
things that the evidence was insufficient to prove the knowledge element for both convictions.
United States v. Price, 582 F. App’x 846, 846 (11th Cir. 2014). A three-judge panel
unanimously rejected Price’s arguments and affirmed his convictions. Id. at 853.
Price, however, grew convinced that something was amiss in the government’s
investigation and prosecution of him and of suspected child pornographers generally. Beginning
in May 2017, he filed a series of FOIA requests relating to the Internet Crimes Against Children
Task Force (“ICAC-TF”). Am. Compl., ECF No. 47, ¶¶ 7–12. His first request, for example,
asked for “any and all reports, documentation, and data by the [ICAC-TF] for” a particular case
number. See ECF No. 13, Ex. A.1 His second request, meanwhile, sought “[a] complete copy of
the [ICAC-TF] Operations Manual, including all abstracts, annexes, and appendices” and an
“index of all cases and evidence processed by [the High Technology Investigations Unit].” Id.,Ex. F. There were many more where those came from. Over nearly two years, Price claims to
have filed “in excess of 100 FOIA requests to agencies across the Executive Branch to probe the
agencies’ technological operating methods and related financial structures.” Pl’s Mot. for
Temporary Restraining Order (“TRO Mot.”), ECF No. 52, ¶ 2. In addition to the requests Price
1
This document is titled “Amended Complaint” on the docket but is not the operative
complaint for purposes of this motion. To avoid confusion, the Court does not provide the
document title in its citation to this docket entry.
2
filed personally, he “organized a coordinated effort involving multiple parties to make recursive
requests to ‘cross-check’ the records produced by the Defendants, and the variety of records the
Defendants could not locate or produce.” Id. ¶ 7. In total, Price “filed and directed the filing, of
more than 250 requests for records, documents, information, and data to more than a dozen
federal, state, and local agencies—including the Defendants” in this case. Id. ¶ 8.
In light of what Price believed were untimely, incomplete, and inconsistent responses to
his and other’s FOIA requests, Price filed suit in the District Court for the Southern District of
Florida on November 29, 2017. See Complaint, ECF No. 1. That court transferred the case to
this district in May 2018. See Order granting Plaintiff’s Motion to Transfer, ECF No. 26.
But before the Court took any action on Price’s FOIA claims, he apparently had learned
enough from the DOJ’s FOIA responses to detect what he insists is additional (and connected)
illegal behavior. He contends that “[t]he Defendants’ responses and statements demonstrated a
calculated pattern of not mere deception but actual deceit,” TRO Mot. ¶ 3, namely a “stratagem
to create federal records ‘off-book’ with the specific intent to thwart” federal records law “and to
mislead the courts as to the true availability of the records” in the government’s custody, id. ¶ 6.2
So Price moved to amend his complaint to add claims under the Administrative Procedure Act
(“APA”) and Federal Records Act (“FRA”), and add as defendants the Attorney General and
Archivist. See Plaintiff’s Motion for Leave to Amend Complaint, ECF No. 38. After the
2
Price is part of a growing chorus raising concerns about the technology used in child
pornography investigations. See Human Rights Watch, Letter to US Department of Justice
About Child Protection System Software (Feb. 1, 2019),
https://www.hrw.org/news/2019/04/03/letter-us-department-justice-about-child-protection-
system-software#; Jack Gillum, Prosecutors Dropping Porn Charges After Software Tools Are
Questioned (Apr. 3, 2019), https://www.propublica.org/article/prosecutors-dropping-child-porn-
charges-after-software-tools-are-questioned.
3
government failed to oppose Price’s motion, the Court granted Price leave to amend and
accepted for filing his amended complaint. See Minute Order of December 14, 2018; Am.
Compl., ECF No. 47.
In January 2019, Price filed a motion for a temporary restraining order and preliminary
injunction, which concerns only the FRA (via APA) claims raised in the amended complaint.
See TRO Mot. Those claims can be found in Counts 1, 2, and 4. Count 1 alleges that then-
Attorney General Jeff Sessions (now William Barr) “violated his duty under 44 U.S.C. § 3106”
by failing to “notify the Archivist concerning the unlawful removal of the records, and by failing
to initiate legal action through [the Office of the Attorney General] to recover the records.” Am.
Compl. ¶ 45. As a remedy for that alleged violation, Price seeks a “declaratory judgment that”
the Attorney General “is in violation of his non-discretionary, statutory duties under the Federal
Records Act,” and an injunction requiring him “to recover unlawfully alienated, destroyed or
removed records[.]” Id. ¶ 50. Count 2 alleges substantially the same against Archivist David
Ferriero and seeks an order requiring Ferriero to initiate legal action to recover the allegedly lost
records. See id. ¶¶ 52–57. Count 4 alleges that DOJ violated “the Acts,” including the FRA, “by
and through the authorization, implementation, and on-going use of a private recordkeeping
system,” id. ¶ 78, which was “a deliberate means to effect a policy and practice of the alienation,
removal, and or destruction of federal records,” id. ¶ 80. For that violation, Price requests a
preliminary injunction requiring DOJ to “cease all unlawful recordkeeping[.]” Id. ¶ 83.
In essence, Price’s motion asks the Court to enjoin DOJ from using its current
recordkeeping system and to require the Attorney General and Archivist to take legal action to
recover records Price fears have been removed from DOJ’s custody. The government has
opposed Price’s motion, which is now ripe for the Court’s resolution.
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II. Legal Standard
“The court considers the same factors in ruling on a motion for a temporary restraining
order and a motion for a preliminary injunction.” Morgan Stanley DW Inc. v. Rothe, 150 F.
Supp. 2d 67, 72 (D.D.C. 2001); see also Vencor Nursing Ctrs., L.P. v. Shalala, 63 F. Supp. 2d 1,
7 n. 5 (D.D.C. 1999). A temporary restraining order or preliminary injunction is warranted only
when the movant demonstrates “(1) a substantial likelihood of success on the merits, (2) that it
would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not
substantially injure other interested parties, and (4) that the public interest would be furthered by
the injunction.” Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (citation
omitted). The party seeking injunctive relief “must make a clear showing that [the] four factors,
taken together, warrant relief.” League of Women Voters of United States v. Newby, 838 F.3d
1, 6 (D.C. Cir. 2016) (internal quotation marks omitted).
III. Analysis
Price’s fundamental contention is that DOJ has created and stored records in a manner
that either makes the records impossible to retrieve or, if they can be retrieved at all, makes their
recovery too time consuming and unreliable. He maintains that this violates the FRA, which
imposes upon both the Attorney General and Archivist a mandatory duty to take corrective
action. According to Price, because both must act but neither has, this Court should compel
them to do so. The Court begins with an overview of the FRA and the ability of private litigants,
like Price, to bring claims under it.
A. Private Causes of Action for FRA Violations
The FRA requires heads of federal agencies to “make and preserve records containing
adequate and proper documentation of the organization, functions, policies, decisions,
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procedures, and essential transactions of the agency.” 44 U.S.C. § 3101. It also requires each
agency head to “establish safeguards against the removal or loss of records the head of such
agency determines to be necessary and required by regulations of the Archivist,” the head of the
National Archives and Records Administration (“NARA”). Id. § 3105.
“When those safeguards fail, the Act sets forth a structure whereby the Archivist and
agency heads are to work together to ensure that no documents are unlawfully destroyed.”
Judicial Watch, Inc. v. Tillerson, 293 F. Supp. 3d 33, 37 (D.D.C. 2017), aff’d sub nom. Judicial
Watch, Inc. v. Pompeo, 744 F. App’x 3, 3 (D.C. Cir. 2018). First, an agency head
shall notify the Archivist of any actual, impending, or threatened unlawful
removal, defacing, alteration, corruption, deletion, erasure, or other destruction of
records in the custody of the agency, and with the assistance of the Archivist shall
initiate action through the Attorney General for the recovery of records the head
of the Federal agency knows or has reason to believe have been unlawfully
removed from that agency, or from another Federal agency whose records have
been transferred to the legal custody of that Federal agency.
44 U.S.C. § 3106(a). And second, if an agency head ignores this statutory mandate, the FRA
provides that “the Archivist shall request the Attorney General to initiate such an action, and
shall notify the Congress when such a request has been made.” Id. § 3106(b).
And what if both the agency head and Archivist stand idle in the face of a known FRA
violation? Although the FRA does not itself empower “private litigants [to] state a direct claim
for legal relief under the FRA,” the D.C. Circuit has held that, for certain types of claims, “the
APA can provide a jurisdictional hook for a suit alleging noncompliance with the FRA.”
Citizens for Responsibility & Ethics in Washington v. Pruitt, 319 F. Supp. 3d 252, 257 (D.D.C.
2018) (“Pruitt”) (discussing Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)). Thus, when
“both the agency head and Archivist ‘fail[ ] to initiate remedial action in a timely manner, private
litigants may sue under the APA to require them to do so.’” Tillerson, 293 F. Supp. 3d at 37
6
(quoting Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Homeland Sec.,
527 F. Supp. 2d 101, 110 (D.D.C. 2007)).
The FRA-via-APA private right of action is limited to certain types of challenges. See
Armstrong, 924 F.2d at 291 (“[W]e find that there is APA review of [an agency’s] recordkeeping
guidelines and instructions, but only limited APA review of claims that records are being
destroyed in violation of such guidelines.”). As Judge Boasberg explained in Pruitt, Armstrong
considered three types of agency actions under the FRA: “(1) agency employees’ ‘destroying
records in contravention of the . . . recordkeeping guidelines and directives’; (2) the agency’s
failure to employ adequate recordkeeping guidelines and directives; and (3) the agency head’s or
Archivist’s refusal to seek the initiation of an enforcement action by the Attorney
General.” Pruitt, 319 F. Supp. 3d at 257 (quoting Armstrong, 924 F.2d at 291, 294–95). “While
the first was not reviewable, [Armstrong] held that the APA provided a private right of action for
the latter two.” Id. Thus, “courts may not entertain private suits alleging that agencies have
improperly destroyed or removed records, but they may consider ones challenging whether
agency guidelines that permit destruction of certain records are adequate under the FRA and ones
alleging that the agency head or Archivist improperly refused to seek initiation of an
enforcement action by the Attorney General.” Id. at 258.
So, what has Price alleged here? Count 1, against the Attorney General, is best read as
raising the second two challenges that Armstrong and Pruitt held are subject to judicial review:
Price attacks both the Attorney General’s failure to “maintain an active, continuing program for
the economical and efficient management” of records as required by 44 U.S.C. § 3102, Am.
Compl. ¶ 44, and his failure to either “notify the Archivist concerning the unlawful removal” or
“initiate legal action . . . to recover the records” as required by 44 U.S.C. § 3106, Am. Compl.
7
¶ 45. Count 2 likewise complains that the Archivist violated his statutory duty under 44 U.S.C.
§ 3106 when he failed to “initiate any legal action to recover the records[.]” Am. Compl. ¶ 55.
These are FRA claims that a private individual may properly press through the APA. See Pruitt,
319 F. Supp. 3d at 257 (recognizing private right of action for (1) “agency’s failure to employ
adequate recordkeeping guidelines and directives” and (2) “agency head’s . . . refusal to seek the
initiation of an enforcement action” (citing Armstrong, 924 F.2d at 294–95)).
Count 4, on the other hand, runs afoul of Armstrong. There, Price alleges that DOJ
violated the FRA “by and through the authorization, implementation, and on-going use of a
private recordkeeping system, known as the Child Protection System (“CPS”) by the National
ICAC-TF Program.” Am. Compl. ¶ 78. He contends that DOJ “authorized, funded, and
implemented the use of an external recordkeeping system as a deliberate means to effect a policy
and practice of the alienation, removal, and or destruction of federal records.” Id. ¶ 80. And he
demands that DOJ stop using this recordkeeping system, id. ¶ 83, which is akin to “suing directly
to enjoin agency actions in contravention of” the FRA, Armstrong, 924 F.2d at 294. Armstrong
made plain that judicial review is precluded for such suits. See id.Price seemingly tries to avoid this conclusion by recasting what appears to be an
improper removal claim, which is not judicially reviewable, as a policy or practice claim, which
is. But Price points to no official, public policy at the root of this claim, instead complaining of
“de facto policies and practices,” Am. Compl. ¶ 77, that together “impair [his] lawful access to
information,” id. ¶ 81. Nor does Price specify the way in which these de facto policies
contravene agency guidelines or the FRA. At bottom, Count 4 invites “judicial assessment of
agency compliance in specific factual contexts”—namely, whether the agency has unlawfully
lost track of records relating to child sex crimes investigations—rather than an assessment of the
8
adequacy of the agency’s recordkeeping guidelines as a general matter. Competitive Enter. Inst.
v. U.S. Envtl. Prot. Agency, 67 F. Supp. 3d 23, 33 (D.D.C. 2014). That species of claim is
unavailable to private plaintiffs under the FRA, and the APA cannot be leveraged to circumvent
that limitation. Id. (“[P]rivate plaintiffs cannot rely on the APA to challenge what they are
expressly prohibited from challenging under FRA, i.e., an agency’s substantive decisions to
destroy or retain records.”).
Price’s complaint therefore alleges two judicially reviewable FRA-via-APA claims. His
motion for a temporary restraining order and preliminary injunction, however, seems to press
only one of them: the 44 U.S.C. § 3106 claim that the Attorney General and Archivist must
initiate action to “seize, secure, or otherwise preserve the status quo of all records removed from
[their] custody[.]” TRO Mot. at 22. The other two demands in Price’s motion relate to enjoining
Defendants from using “[Software-as-a-service-based], Could-based, or other non-government
owned or operated system” that “remove[s] [or] alienate[s] . . . records from the Defendants’
custody.” See id. (demands one and two). As the Court explained in the preceding paragraph
discussing Count 4, this is akin to “suing directly to enjoin agency actions in contravention of
agency guidelines,” and Armstrong made clear that such a claim is unavailable to private
litigants. 924 F.2d at 294. The motion does not otherwise indicate a desire to press an
adequacy-of-recordkeeping-guidelines claim under 44 U.S.C. § 3102. For the purposes of
resolving this motion, then, the Court need only consider the propriety of a temporary restraining
order with respect to Price’s failure-to-act § 3106 claim against the Attorney General and
Archivist.
9
B. Whether Injunctive Relief is Warranted
The Court can now proceed to analyze whether Price has established his entitlement to
either a temporary restraining order or preliminary injunction with respect to this claim.
Although these are ostensibly discrete claims—Count 1 is against the Attorney General, Count 2
the Archivist—they can be treated together since the same statutory provision governs each.
1. Likelihood of Success on the Merits
The Court begins with the first factor for injunctive relief—whether Price has shown a
substantial likelihood of success on the merits of his underlying claim. There remains some
“tension in the case law regarding the showing required on the merits” for injunctive relief.
Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 505 n.1 (D.C. Cir. 2016)
(requiring “substantial likelihood”); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008) (requiring “likely” success); Sherley v. Sebelius, 644 F.3d 388, 398 (D.C. Cir.
2011) (requiring “more likely than not”). There is also some question whether the required
showing can even be fixed in a vacuum, or whether instead the “necessary showing on the merits
is governed by the balance of equities as revealed through an examination of the other three
factors.” Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844
(D.C. Cir. 1977). Under the latter approach, a more persuasive showing on the merits may be
required where the equities counsel against injunctive relief, while raising only a “serious legal
question” on the merits may suffice if the other three factors support it. Aamer v. Obama, 742
F.3d 1023, 1043 (D.C. Cir. 2014). The Court need not hem and haw over the various standards
and frameworks, for the result remains the same under any of them: Price cannot establish a
likelihood of success on the merits.
10
Price contends that both the Attorney General and Archivist have failed, as required by
44 U.S.C. § 3106, to initiate action to recover the allegedly unlawfully removed or alienated
records. To show a likelihood of success on this claim, Price must convincingly (1) identify
records that fall under the FRA; (2) allege that those records are being removed or destroyed in
violation of the FRA; and (3) allege that the relevant agency head (here, the Attorney General)
and/or Archivist knew about the FRA violations and yet failed to initiate corrective action.
Start with step one. The FRA requires heads of federal agencies 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. The FRA
defines federal records as
All recorded information, regardless of form or characteristics, 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 or its
legitimate successor as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the Government or
because of the informational value of the data in them.
Id.As is already clear, Price is focused on records kept by the Internet Crimes Against
Children Task Force, a network of law enforcement authorities engaged in investigations and
prosecution of offenses involving the exploitation of child victims. In a letter Price wrote to the
Attorney General and Archivist notifying them of alleged FRA violations, Price describes them
broadly as the “records [the DOJ] relied upon to obtain thousands of criminal convictions.” Pl’s
Mot. to Extend Time to File Am. Compl., Ex. D, ECF No. 35 at 20. In his amended complaint,
Price says the missing records “include but are not limited to emails, a collaborative message
exchange, files, administrative subpoena records, 3rd-party database records, IP Address records,
various ‘hash values’ e.g., SHA-1 values, MD-5 values, etc., and other historical records.” Am.
11
Compl. ¶ 23. Although the specific Counts alleging FRA violations do not add any more detail,
his motion for injunctive relief seems to home in on the missing SHA-1 (or “secure hash
algorithm version 1”) values. See TRO Mot. ¶ 9. SHA-1 values, represented as 40-digit
hexadecimal numbers, are “used as the basis for the Digital Signature that performs the same
function as an analog, i.e., pen and ink, signature on physical evidence.” Id. ¶ 10.
Here it makes sense to briefly describe the role of SHA-1 values in child pornography
investigations. Law enforcement entities across the country, including federal agencies, use a
software program called the Child Protection System (“CPS”) to investigate the collection and
distribution of child pornography through computer users linked via peer-to-peer software.
United States v. Naylor, 99 F. Supp. 3d 638, 639 (S.D.W. Va. 2015).3 In simple terms, CPS
“allows law enforcement to search peer-to-peer networks for files containing terms associated
with child pornography.” Id. Files containing depictions of child pornography can be identified
by their hash value, which is “essentially a digital fingerprint unique to a particular file.” Id.(internal quotation marks omitted). Thus, law enforcement can cross-reference its database of
hash values known to contain child pornography with those found corresponding to particular IP
addresses to pursue suspected purveyors and consumers of child pornography. See id.(describing how a West Virginia police officer “compare[d] the hash value of its holding with
the hash values for the 29 files” found on suspect’s computer).
Because hash values are essential to the DOJ’s investigation and prosecution of suspected
child pornographers, Price contends that the FRA requires DOJ to maintain them. Reply ¶ 23.
He points to the definition of “electronic record” in the regulations interpreting the FRA, which
3
CPS was developed by TLO, Inc., though it is now managed by the Child Rescue
Coalition (“CRC”).
12
state that such a record “includes both record content and associated metadata that the agency
determines is required to meet agency business needs.” 36 C.F.R. § 1220.18. The regulations
further define “metadata” as “preserved contextual information describing the history, tracking,
and/or management of an electronic document.” Id. Price believes the SHA-1 values qualify as
metadata that are essential to the agency’s functioning: as a “digital fingerprint unique to a
particular file” of child pornography, Naylor, 99 F. Supp. 3d at 639 (internal quotation marks
omitted), it is crucial to the agency’s efforts to identify, investigate, and prosecute suspected
offenders.
That brings the Court to step two. Assuming that Price has adequately described the
missing records, he then must show that such records are being removed from agency custody in
violation of the FRA. Price argues that the DOJ violates the FRA by using programs like CPS—
what he describes generally as third-party software-as-a-service or cloud-based software
programs—because those programs do not maintain records in the manner required by the FRA
and other federal records laws. And why did DOJ do this? According to Price, DOJ “devised a
stratagem to create federal records ‘off-book’ with the specific intent to thwart [federal records
laws], and to mislead the courts as to the true availability of the records” in the third-party
software and systems. TRO Mot. ¶ 6.
The government contests the adequacy of Price’s allegations that DOJ is actively
violating the FRA through the use of CPS. It argues that Price has failed to identify “the manner
by which the use of Software-as-a-Service based and cloud-based software violates the FRA.”
Opp. to TRO Mot., ECF No. 59, at 6. The government’s response on this score highlights a
larger issue with its struthious approach to this case. The government’s primary litigation
strategy in this matter appears to be feigned ignorance: if we act like we don’t know what this
13
pro se plaintiff is arguing, then perhaps neither will the Court. The government repeatedly
asserts that it cannot divine what Price is arguing, thereby avoiding substantive engagement with
the various statutory provisions in play. But while the government struggles to identify the bases
for Price’s claims, the Court does not find them all that difficult to discern. For example, the
government faults Price for allegedly “fail[ing] to explain the ‘non-discretionary duties’
compelling” the Archivist and Attorney General to take action, but Price’s complaint cited and
explained the appropriate statutory provision that so compels them. See Am. Compl. ¶¶ 39–50
(detailing 44 U.S.C. § 3106’s requirement of agency head action in Count 1 against Attorney
General); id. ¶¶ 51–57 (same in Count 2 against Archivist).
Likewise on this issue, the problem for Price is not (as the government would have it)
that he has failed to chart a reasonably coherent path to relief. He has. He argues that, assuming
federal law enforcement can use third parties to create and maintain records used in federal
prosecutions at all, it can do so only to the extent such records are kept in compliance with
federal records laws. And here, Price submits, the third parties have not done so, because they
have (according to him) failed to keep track of essential metadata and various other records
related to prosecutions. See TRO Mot. ¶ 11 (complaining that Defendants claimed not to possess
SHA-1 values that “under the statutes [they] were required to have created or received”).
But just as a blueprint does not equal a building, a recognizable theory does not equal a
substantial likelihood of success on the merits. When the Court considers Price’s evidence for
his claim that the DOJ does not maintain records essential to its prosecutions, it concludes that he
comes up short. Price says his evidence in support of his allegation that the DOJ is actively
violating the FRA is four-fold:
(1) the exhibit evidence; (2) the sworn affidavits of Derek Dubner, General
Counsel for TLO/CRC, and William Wiltse, Director of Law Enforcement
14
Operations for TLO/CRC regarding the operation of their software exclusively for
the Defendants’ program participants (law enforcement); (3) the court’s records in
the cases cited as evidence of the Defendants’ conduct; and (4) the statutes and
regulations before this Court.
Reply ¶ 29. The Court examines these in turn.
Exhibit Evidence. Price attached to his motion for injunctive relief roughly 500 pages of
exhibits. The first two exhibits, totaling well over two hundred pages, are “Standard”
publications by the National Institute of Standards and Technology that discuss secure hash
standards, including the SHA-1 values at issue in this case, and digital signature standards. See
TRO Mot., Exs. A–B, ECF Nos. 52-1, 52-2. These documents are part of “the official series of
publications relating to standards and guidelines adopted and promulgated under the provisions
of” the Federal Information Security Management Act (“FISMA”), 44 U.S.C. §§ 3551 et seq.
Ex. B at 3. While they provide a detailed breakdown of what secure hash values and digital
signatures are, and how they should be used consistent with FISMA, they do not themselves
show that DOJ violated the FRA. For the same reasons, Exhibits D and E—which are Wikipedia
entries for SHA-1 and digital signatures, respectively—also do not provide evidence of an FRA
violation. See ECF Nos. 52-4, 52-5.
Another set of exhibits attached to Price’s motion for injunctive relief, G through I,
consists of probable cause affidavits provided in support of search warrants. ECF Nos. 52-7–52-
9. One exemplifies all three. See Ex. I at 19 (“Law enforcement, using investigative software,
observed IP address 50.143.14.40 advertising approximately thirty-six (36) unique files with
SHA-1 hash values consistent with child pornography files[.]”). Price, ostensibly, uses these
affidavits to show the role that third-party software services in general, and SHA-1 values in
particular, play in the investigation of suspected child pornographers. But as Price himself seems
to acknowledge, these affidavits, at most, show that SHA-1 values and other information
15
contained in them likely meet the definition of records in the FRA, not that the DOJ is violating
the FRA. See TRO Mot. ¶ 12 (reciting definition of records in 44 U.S.C. § 3301 and arguing
that it covers “all items and forms of record referenced in the affidavits”).
Then there are exhibits that Price attached to the various complaints he has filed in this
case. One of these is a FOIA request, assigned the tracking number (referred to in the party’s
submissions) 17-00209, in which Price sought “any and all reports, documentation, and data by
the Internet Crimes Against Children (‘ICAC’) Task Force for case number 11-7890.” See ECF
No. 13, Ex. A.4 The same request specifically asked for “any and all reports, documentation and
information specifically regarding SHA-1 data, by the Internet Crimes Against Children
(‘ICAC’) Task Force for” the same case number. Id. The agency’s search, conducted by the
Office of Justice Programs (“OJP”), returned 26 pages of responsive records, but yielded no
responsive documents regarding the SHA-1 data Price sought. See ECF No. 13, Ex. C. In
addition, Price references several other FOIA requests, Am. Compl. ¶¶ 15–20 (citing Exhibits H,
L, and O, available at ECF No. 13), which he says unsuccessfully sought records the DOJ “was
required to collect and preserve under the statutes.” Am. Compl. ¶ 20.
These exhibits establish at most that Price had ample reason to file his initial FOIA
lawsuit, but they do not establish that DOJ is likely committing FRA violations. Price has put
the cart before the horse. Without knowing how DOJ searched for the records Price requested,
the Court cannot say with any certainty that the agency—again, assuming it must maintain
them—has lost access to them altogether. Many questions need answering before jumping to
4
This document is titled “Amended Complaint” on the docket but is not the operative
complaint for purposes of this motion. To avoid confusion, the Court does not provide the
document title in its citation to this docket entry.
16
that conclusion. What, if any, categories of records did the agency exclude from its searches?5
What search terms did DOJ use? Were the agency’s searches conducted by the proper
custodians? Did the agency search the proper locations? Did it request any records from the
Child Rescue Coalition, who runs the CPS program? Can one even expect metadata, like SHA-1
values, to be returned via FOIA requests? Until search issues like these are explored through
ordinary FOIA litigation, it is hard to know whether the DOJ’s responses to Price’s requests to
date reveal much of anything about the agency’s compliance with (or violation of) the FRA.
The same is true for potential exemptions. Without knowing what responsive records, or
parts of records, the agency determined were exempt, it is nigh impossible to determine what
records the agency actually has in its possession. For example, in its response to FOIA Request
5
As one example, OJP informed Price, in responding to FOIA Request No. 17-00209,
that Congress “excluded three discrete categories of law enforcement and national security
records from the requirements of the FOIA,” and that its “response is limited to those records
that are subject to the requirements of the FOIA.” ECF No. 13, Ex. C (citing 5 U.S.C. § 552(c)).
Section 552(c)(1) provides:
Whenever a request is made which involves access to records described in
subsection (b)(7)(A) and—
(A) the investigation or proceeding involves a possible violation of criminal law;
and
(B) there is reason to believe that (i) the subject of the investigation or proceeding
is not aware of its pendency, and (ii) disclosure of the existence of the records
could reasonably be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues, treat the
records as not subject to the requirements of this section.
Given that Price more than once sought records relating to a specific criminal case, and given
that many of his requests targeted information relating to criminal investigations more generally,
it seems possible that the minimal responses he received are explained by the exclusion
embodied in § 552(c), as opposed to some unlawful and nefarious recordkeeping practice.
17
17-00209—seeking records relating to a particular case and to the ICAC-TF more generally—the
agency redacted “jurisdictional identifiers” and “record numbers” pursuant to the personal
privacy exemption embodied in 5 U.S.C. § 552(b)(6), which excepts from disclosure files “the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” See
ECF No. 13, Ex. C. Similarly, in response to a “3rd-Party FOIA request,” in which Price sought
“case specific records, documents, information, and data regarding” a particular individual, the
DOJ, according to Price, “refused to produce the records[,] citing exemptions under 5 U.S.C.
§ 552(b)(7)(E) and (b)(7)(F).” Am. Compl. ¶ 21. Those exemptions permit withholding,
respectively, of information that would “disclose techniques and procedures for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law” or “could reasonably be expected to endanger the life or physical
safety of any individual.” Given that this case stems from Price’s desire to excavate the
techniques used by law enforcement in the investigation and prosecution of child sex crimes, and
that it seeks law enforcement records that are not personal to him, it seems inevitable that the
privacy and law enforcement exemptions will swallow up massive swaths of the records he
seeks.6
The “3rd-Party FOIA request” raises yet another issue: whether Price would be able to
6
access through FOIA many of the records he sought, given that they are law enforcement records
that may relate to third parties. If any of the records Price seeks contain “information that would
show that someone else . . . has ever been the subject of a criminal investigation or was even
mentioned in a criminal file . . . in almost all cases DOJ will respond by stating that it will
‘neither confirm nor deny’ the existence of responsive law enforcement records.” Department of
Justice, FOIA Frequently Asked Questions, https://www.justice.gov/usao/resources/making-foia-
request/foia-frequently-asked-questions (response to “What about requirements for obtaining
records on someone else?”). Just once Price indicates that he obtained a waiver of privacy rights,
which would obviate that obstacle, but it is unclear how regularly he did so and how often his
requests would run into this problem—yet another reason why these issues should be vetted
18
The Court could go on but trusts the point is clear enough: Price can challenge the who,
what, where, and how of the search, along with the propriety of any exemptions, under FOIA
law. Depending on how that litigation plays out, Price may come to find that the DOJ in fact
possesses the very records Price suspects they have failed to keep, but that he also has no right to
access them. Or he may find otherwise, and in the process gather more potent ammunition for
his FRA grievances. In any event, until that happens, it would be a fool’s errand to assess
whether DOJ has complied with the FRA by reference to the scattershot FOIA exhibits attached
to Price’s pleadings.
Sworn Affidavits. Price also suggests that two affidavits provided by employees of TLO,
Inc., the company that developed and used to run CPS, support his claim that the DOJ is engaged
in ongoing FRA violations. Price is mistaken. In United States v. Ocasio, No. 11-CR-02728-KC
(W.D. Tx. Mar. 26, 2013), it is true that both Derek Dubner and William Wiltse, then-employees
of TLO, submitted affidavits at the government’s request, in which they averred that federal law
enforcement used CPS software to combat Internet-based child pornography. See Ex. M, ECF
No. 52-13 at 7–9, 14–18. Both Dubner and Wiltse also offered reasons why they did not want to
subject their software, particularly the “source code,” to forensic examination. Ex. M. at 8.
These affidavits, however, merely confirm an unremarkable and uncontested proposition: that
federal law enforcement leverages third-party software programs in its efforts to track down and
prosecute child pornographers. It does not establish that the use of programs like CPS itself
through full FOIA briefing before trying to glean significant takeaways about the agency’s FRA
compliance from the FOIA exchanges between the parties.
19
constitutes an FRA violation.7 What Price needs the affidavits to do, but what they do not do, is
provide evidence that the CPS software suite creates and maintains records in a manner that
violates federal law.
Court Records. Next, Price cites several federal cases in which the government
voluntarily dismissed charges when it became clear it would have to subject the third-party
software it used in the investigations to forensic examination. TRO Mot. ¶ 3. In United States v.
Hartman, No. 15-CR-00063-JLS (C.D. Ca. Jan. 21, 2016), for example, the court granted
Hartman’s motion to compel discovery of the software. Hartman, Order, ECF No. 87. The
government requested more time to comply with the order, acknowledging that “items pivotal to
the required testing are in the possession of a non-governmental entity and the government must
consult with this private entity” to obtain “the key software and data.” Hartman, Status Report,
ECF No. 102. But rather than producing that software and data, it opted instead to drop the
charges. Based on Hartman and other cases like it, Price argues that “[w]hen [criminal]
defendants moved to compel production of ‘the records alleged’ in the supporting affidavits,
indictments, and inspection of the software that created the alleged records, the Defendants
dismissed the indictments to avoid exposure of their violations of the law.” TRO Mot. ¶ 4.
Although Price has offered one way of interpreting what happened in those cases, the
Court is not convinced that it is the likely explanation. For one, the government may have
decided to drop charges in some cases because it feared that forensic examination of its third-
party software tools would cause the disclosure of confidential techniques that would enable
future criminals to evade capture. See Gillum, supra 3 n.2 (portion quoting cybercrime expert
7
The same is true of Exhibit J, records of a proceeding in United States v. Noden, No.
8:16-CR-0283-LSC (D. Neb. Apr. 20, 2017).
20
and professor Orin Kerr). For another, the government may be bound by contract not to make
certain disclosures that, if ordered by a court in a criminal case, either require it to dismiss the
underlying charges or breach the contract and lose access to the software systems in the future.
Id.; see TRO Mot., Ex. M (TLO employee Dubner discussing importance of protecting CPS’s
source and object code). Yet even if the government did drop charges in those cases to “avoid
exposure of their violations of the law,” as Price contends, those violations seem far more likely
to concern the propriety of the government’s investigation under the Fourth Amendment or its
compliance with federal evidence law than some cover-up of FRA noncompliance. At the end of
the day, those cases show what the other exhibit evidence (including the affidavits) shows: that
law enforcement uses third-party software tools like CPS. But they do not show that the use of
CPS necessarily equates to an FRA violation.
Statutes and Regulations. The finals fragments of proof Price offers in support of his
motion for injunctive relief are citations to various federal statutes and regulations. For instance,
Price contends that 18 U.S.C. § 2258A and 42 U.S.C. § 5773(b) require DOJ to submit SHA-1
values to the National Center for Missing and Exploited Children, TRO Mot. ¶ 11, and that any
records the DOJ creates and maintains must comply with the FISMA provisions in 44 U.S.C. §§
3551–59, id. ¶ 14. Simply identifying laws that establish recordkeeping requirements does not
do the trick for Price, since all that may show is that some of the records he complains are
missing may well qualify as records under the FRA. Take his FISMA argument. Even accepting
that Price has accurately represented the statutory scheme—that the FRA incorporates FISMA,
meaning that anything FISMA requires, the FRA requires—that just goes to show that the
allegedly missing records are subject to federal records laws. Yet as with much of what Price
has alleged and produced as evidence, it does not show that the DOJ is violating the FRA. The
21
Court has already indicated that it accepts, at this early juncture and with no counterargument by
the government, Price’s contention that hash values fall within the definition of federal records
for DOJ. It also accepts Price’s contention that an amalgam of federal laws mandate the creation
and maintenance of certain types of metadata. But it cannot accept Price’s contention that the
records kept by DOJ are not FISMA-compliant or otherwise in violation of federal law just
because Price says so.
Therefore, after carefully combing Price’s complaint, the briefs related to his motion for
injunctive relief, and the copious accompanying exhibits, the Court concludes that Price has
failed to show the DOJ is actively violating the FRA. For this reason, he has not shown a
substantial likelihood of success on the merits.
Although the Court could end its analysis of the first factor here, it will explore a further
reason why Price’s theory of relief may not hold up. Recall what Price must accomplish to
establish a likelihood of success on the merits on a 44 U.S.C. § 3106 claim. He must make a
clear showing (1) that the records he is complaining about fall under the FRA; (2) that those
records are being removed or destroyed in violation of the FRA; and (3) that the relevant agency
head (here, the Attorney General) and/or Archivist knew about the FRA violations and yet failed
to initiate corrective action. The Court has already concluded that Price’s argument falters at the
second step. Yet, even if Price had made an adequate showing that specific types of records
related to criminal prosecutions were being removed from DOJ custody in violation of the FRA,
the Court doubts he could carry his burden at step three.
The core issue here is whether Price can establish that either the Attorney General or the
Archivist knew of an FRA violation and is therefore under any statutory duty to act. For
although agency inaction is amenable to judicial challenge under the APA, that is so only where
22
a particular action is mandated by law and the agency has refused to take it. Judicial Watch, Inc.
v. Kerry, 844 F.3d 952, 954 (D.C. Cir. 2016) (“[T]he Administrative Procedure Act permits a
claim ‘that an agency failed to take a discrete agency action that it is required to take.’” (quoting
Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)); see 5 U.S.C. § 706(1) (“The
reviewing court shall . . . compel agency action unlawfully withheld or unreasonably
delayed[.]”).
It is not clear to the Court that either the agency head or the Archivist is yet under any
duty to act. As the Court understands § 3106, which anchors Price’s attempt to compel the
Attorney General or Archivist to act, neither individual must act until they know of an actual or
impending FRA violation. Only then has the Attorney General or the Archivist “failed to take a
discrete agency action that it is required to take” under the FRA. Kerry, 844 F.3d at 954. A
short review of § 3106 shows why. It provides that the “head of each Federal agency shall notify
the Archivist of any actual, impending, or threatened unlawful removal . . . or other destruction
of records in the custody of the agency” and “shall initiate action through the Attorney General
for the recovery of records the head of the Federal agency knows or has reason to believe have
been unlawfully removed from that agency[.]” 44 U.S.C. § 3106(a). Hence, an agency head,
once he knows records are being unlawfully removed, must (1) notify the Archivist and (2) enlist
the aid of the Attorney General in recovering the lost records. The FRA further commands that,
if the agency head does not take such action, the “Archivist shall request the Attorney General to
initiate such an action, and shall notify the Congress when such a request has been made.” Id.§ 3106(b). The Archivist’s twin duties in the event of a known (and unresolved) FRA violation
are to (1) request the aid of the Attorney General and (2) notify the Congress that an agency is
violating the FRA. But the Attorney General’s duties (as the relevant agency head in this case)
23
to notify the Archivist of the destruction of records and implement remedial action attach only
after he has identified the unlawful “actual, impending, or threatened” removal of records. See
id. § 3106(a). Ditto for the Archivist’s mandate to request the Attorney General to “initiate such
an action”—he is under no statutory duty to do so unless he knows of any “actual, impending, or
threatened unlawful removal . . . of records[.]” Id. Thus, plaintiffs like Price must plausibly
allege that the relevant agency head and Archivist know about an FRA violation in order to
plausibly allege that they should be compelled to take action under § 3106; merely alleging an
FRA violation by itself will not suffice.
Judge Boasberg’s decision in Pruitt reinforces this reading of § 3106. There, the court
considered whether plaintiffs had adequately stated an APA claim under another section of the
FRA, 44 U.S.C. § 2115, which provides in relevant part:
When the Archivist finds that a provision of any such chapter has been or is being
violated, the Archivist shall (1) inform in writing the head of the agency
concerned of the violation and make recommendations for its correction; and (2)
unless satisfactory corrective measures are demonstrably commenced within a
reasonable time, submit a written report of the matter to the President and the
Congress.
Judge Boasberg concluded that the plaintiffs had not stated a claim under § 2115 because the
“when” condition had not been satisfied. “Plaintiffs’ failure to allege that the Archivist made
any actual finding of a violation—the condition precedent for § 2115’s obligations—is fatal to
Count III.” Pruitt, 319 F. Supp. 3d at 262. As it was with § 2115, so it should be with § 3106:
“[t]he finding of a violation is . . . a condition precedent to the [Attorney General’s and]
Archivist’s statutory obligation to act.” Id. at 261.
To be sure, there are textual differences between § 2115 and § 3106 that, one could
argue, command different interpretations. Most importantly, the former, unlike the latter, is
clearly stated in the conditional tense. Compare 44 U.S.C. § 2115 (“When the Archivist finds
24
. . . .”) with id. § 3106(a) (“The head of each Federal agency shall notify the Archivist of any
actual, impending, or threatened unlawful removal . . . .”). Even so, the D.C. Circuit in
Armstrong and other courts in this district appear to construe § 3106 as creating a conditional
obligation. The Armstrong court explained § 3106 as follows: “[O]nce the agency head becomes
aware of ‘any actual, impending, or threatened’” unlawful removal of records, “the agency head
‘shall notify the Archivist’ and ‘with the assistance of the Archivist shall initiate action through
the Attorney General.’” 924 F.2d at 296 (quoting § 3106) (first emphasis added). In Cause of
Action v. Pompeo, Judge McFadden read § 3106 similarly: “When the head of a federal agency
‘knows or has reason to believe’ that federal records ‘have been unlawfully removed’ from
agency custody, he has a duty to ‘initiate action through the Attorney General for the recovery of
[the] records.” 319 F. Supp. 3d 230, 232 (D.D.C. 2018) (quoting § 3106) (emphasis added and
alteration in original). The upshot of those formulations? Neither the Attorney General nor the
Archivist is under any duty to act until the “once” or “when” condition—knowledge of unlawful
removal of records—is satisfied. Put another way, § 3106 imposes no duty upon either the
Attorney General or Archivist to find that an agency has removed records in violation of the
FRA; it does impose mandatory duties upon each of them if they know that such unlawful
removal of records has occurred, is occurring, or will occur.
Notwithstanding their textual differences, it would make little sense to read § 3106
differently than § 2115. Both provisions deal with what actions must be taken in the event of an
FRA violation, although § 2115 applies only to the Archivist, not agency heads, and deals only
with his obligation to report violations and “make recommendations for [their] correction,” not
initiate action to enjoin them. If, as Pruitt held, a condition precedent to suing the Archivist for
violating § 2115’s reporting obligations is an actual finding of an FRA violation by the Archivist,
25
why would such a finding not be required as a condition precedent to suing agency heads or the
Archivist for violating § 3106’s recovery obligations? That would mean a private litigant could
sue for the more drastic remedy—compelling the agency head or Archivist to take corrective
action, as § 3106 requires—based on their own, unilateral allegation of an FRA violation, but
that same litigant could not sue to enforce the more modest requirement—compelling the
Archivist “make recommendations” to the offending agency on how to correct the violation and
report the violations to the President and the Congress, as § 2115 requires. The Court doubts
Congress envisioned such a peculiar statutory scheme.
The D.C. Circuit’s choice of words in describing Armstrong’s holding that some limited
judicial review is available under § 3106 provides further support for the Court’s reading.
Although the court found that § 3106’s “clear statutory language mandating that the agency head
and Archivist seek redress for the unlawful removal or destruction of records” provided a basis
for judicial review, the court held that such review was confined to “the agency head’s and
Archivist’s enforcement actions.” Armstrong, 924 F.2d at 296 (emphasis added). It used similar
language throughout the opinion. See, e.g., id. at 295 (judicial review permitted for “refusal to
seek the initiation of an enforcement action”); id. (judicial review permitted for “failure to take
enforcement action”). The court said nothing about the propriety of judicial review of the
agency head or Archivist’s determination that there was an unlawful removal or destruction of
records in the first instance.
Finally, a requirement that the agency head or Archivist must first have actual knowledge
that records are being unlawfully removed or destroyed before either can be sued for violating
§ 3106 ensures that courts don’t entertain the cause of action that Armstrong held was
unavailable to private litigants. Were it otherwise—if that condition did not need to be
26
satisfied—a plaintiff could easily circumvent Armstrong’s holding that a direct action to force an
agency to stop destroying records, or to retrieve ones already lost, is unavailable under the FRA.
Armstrong made clear that “courts may not entertain private suits alleging that agencies have
improperly destroyed or removed records, but they may consider . . . ones alleging that the
agency head or Archivist improperly refused to seek initiation of an enforcement action by the
Attorney General.” Pruitt, 319 F. Supp. 3d at 258 (discussing Armstrong, 924 F.2d at 294–95).
Thus, a private litigant cannot sue to stop an agency from removing or destroying certain
records, but she can sue to compel recovery efforts by an agency head and/or the Archivist.
But, of course, the FRA requires agency heads and the Archivist to take corrective action
only if records have been improperly destroyed or removed. In other words, to succeed on a
§ 3106 claim, a plaintiff must first establish that records have been destroyed or removed from
agency custody in violation of the FRA. And if a plaintiff’s unilateral declaration that records
have been unlawfully destroyed—rather than an agency’s express or implied acknowledgement
of such a violation—is enough to get a § 3106 claim off the ground, the D.C. Circuit wasted its
breath when it prohibited private actions “to prevent an agency official from improperly
destroying or removing records.” Armstrong, 924 F.2d at 294. That is so because a plaintiff
could secure judicial review for that very claim simply by adding the further demand that an
agency head or the Archivist initiate action to recover the allegedly missing records. That would
require federal courts to decide whether an FRA violation has occurred in the first instance—a
question not just the D.C. Circuit, but also the Supreme Court has said is unfit for judicial
review. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 149–50
(1980) (“Thus, regardless of whether Kissinger has violated the [FRA] and Records Disposal
Act[ ], Congress has not vested federal courts with jurisdiction to adjudicate that question upon
27
suit by a private party. That responsibility is vested in the administrative authorities.”); accord
True the Vote, Inc. v. IRS, No. CV 13-734 (RBW), 2014 WL 4347197, at *5 (D.D.C. Aug. 7,
2014) (“[E]ven if there has been a Federal Records Act violation, the current action before this
Court is not the appropriate vehicle to determine whether such a violation occurred.”).
The court in Judicial Watch, Inc. v. National Archives and Records Administration, 845
F. Supp. 2d 288, 302 (D.D.C. 2012), recognized, and avoided, this perversity in the PRA context.
In that case, Judicial Watch sought to compel the Archivist to recover records purportedly
subject to the Presidential Records Act (“PRA”). Analogizing the PRA enforcement scheme in
44 U.S.C. § 2112(c) to the FRA enforcement scheme in 44 U.S.C. § 3106, Judge Berman
Jackson declined Judicial Watch’s invitation, reasoning that the “only enforcement tools
provided to the defendant under the PRA are committed to the agency’s sole discretion.” Id.The analogy of § 3106 to § 2112(c), for the same reasons explained with respect to § 2115, is not
a perfect one; the latter two provisions are clearly written as conditionals, while § 3106 is not.
See 44 U.S.C. § 2112(c) (“When the Archivist considers it to be in the public interest . . . .”).8
Nevertheless, the court reasoned, Judicial Watch’s request “essentially asks the Court to compel
defendant to determine that a violation has occurred and enforce the PRA,” which “is not
permissible under the APA.” Judicial Watch, 845 F. Supp. 2d at 302. The same is functionally
true here of Price’s request: by asking the Court to compel the Attorney General and Archivist to
take action under § 3106, he is asking them first to determine that a violation has occurred—
which § 3106 does not mandate—and only second to take the enforcement action that § 3106
does mandate. The APA does not permit a plaintiff to compel agency action unless that action is
8
Again, though, the Court cannot understand what sense it would make for § 3106 to be
read differently than essentially every other enforcement provision in the FRA and the PRA.
28
mandated by statute. Kerry, 844 F.3d at 954 (“[T]he Administrative Procedure Act permits a
claim ‘that an agency failed to take a discrete agency action that it is required to take.’” (quoting
Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)). Accordingly, the Court concludes
that a predicate to a viable § 3106 failure-to-act claim is a plausible allegation that the applicable
agency head or Archivist knows that records are indeed being removed or destroyed in
contravention of agency policy or the FRA.
On this view of § 3106, Price’s claim is premature. He has not plausibly alleged that
either the Attorney General or the Archivist found an actual, threatened, or impending unlawful
removal or destruction of records. All he has alleged is that he “provided formal notice of the
DOJ’s past and on-going violations of the FRA” to the Attorney General and Archivist, and that
the Chief Records Officer of NARA responded that “he was unaware of the DOJ’s violations.”
Am. Compl. ¶ 22. After Price followed up with “additional information, including copies of the
statutes and citations from internal DOJ documents and details of records alienated, removed, or
destroyed in non-governmental systems,” NARA responded “that based on the additional
information, further investigation would be required.” Id. ¶ 23. This does not amount to an
allegation that the Attorney General or Archivist knows that records are being destroyed in
violation of the FRA. Instead, it is functionally identical to what the Pruitt court found
insufficient to trigger mandatory action by either the agency head or the Archivist. There,
CREW “sent a letter notifying [the Archivist] of what it thought were FRA-compliance issues,”
but the “Archivist [never] replied or indicated in any way that a violation had occurred.” Pruitt,
319 F. Supp. 3d at 262. That NARA indicated it had investigated the matter and was preparing a
response to CREW’s concerns was of no moment, because that did not amount to “any actual
finding of a violation.” Id. Just so here: that the agency responded to Price that it was looking
29
into his allegations is not tantamount to acknowledging an FRA violation has occurred or is
occurring.
It might be asked—though it is not discussed by the parties in their submissions, like
most of the issues pertinent to this motion’s resolution—why this was not an issue in cases like
Kerry and Pompeo. The reason is simple: both those cases were decided by the district court on
mootness grounds, on the theory that the agency’s corrective efforts had fulfilled their statutory
mandate under § 3106. But the very fact that the agency had taken some steps toward correcting
for the removal of the records at issue (former Secretary of State Colin Powell’s emails in
Pompeo and former Secretary of State Hillary Clinton’s in Kerry) quite obviously functioned as
an acknowledgement that those records should be in the agency’s possession. See Kerry, 844
F.3d at 953 (“Although the current Secretary (with the help of the National Archivist) has made
efforts to recover those emails . . . .”); Pompeo, 319 F. Supp. 3d at 233 (“The Government then
requested additional time to respond . . . to enable more extensive efforts to obtain the emails.”).
Likewise in CREW v. SEC, 916 F. Supp. 2d 141, 150 (D.D.C. 2013), the SEC had already taken
a series of actions in response to the alleged destruction of records, which meant the court had
only to consider whether the response was sufficient to satisfy § 3106, because the agency’s
initial response functioned as a de facto finding of an FRA violation. A similar
acknowledgement—formal or informal, explicit or implicit—is lacking so far in this case.
Accordingly, Price cannot show that the condition precedent to § 3106’s mandatory duties has
been satisfied. For this reason, too, the Court would find that Price cannot establish a likelihood
of success on the merits.
The Court well understands that a plaintiff may be entitled to injunctive relief “based on
less formal procedures and on less extensive evidence than in a trial on the merits.” Cobell v.
30
Norton, 391 F.3d 251, 261 (D.C. Cir. 2004). And the Court acknowledges that the bar a plaintiff
must clear to show a likelihood of success on the merits is in many cases, including this one, far
from clear. Even so, “[a] preliminary injunction is an extraordinary remedy that should be
granted only when the party seeking the relief, by a clear showing, carries the burden of
persuasion.” Id. at 258 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). Here the
Court is simply unconvinced that Price has made that clear showing on the first factor.
2. Irreparable Harm
Price’s failure to establish a likelihood of success on the merits is not necessarily fatal to
his quest for injunctive relief. Under the traditional sliding-scale approach in this Circuit, Price
might be able to compensate for his weak showing on one factor by making an “unusually strong
showing on” another factor. Davis v. PGBC, 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). True,
the Supreme Court’s decision in Winter v. NRDC, 555 U.S. 7 (2008), has called into question
this hydraulic approach and suggested that the merits and irreparable harm factors are
“independent, free-standing requirement[s],” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir.
2011), but the Circuit has yet to take a firm position on the matter—and so neither will this
Court.
Assuming Price could salvage his request for injunctive relief with a strong showing on
this factor, he nevertheless fails to make such a showing. “To be entitled to preliminary
injunctive relief, a plaintiff must show injury that is certain, great, actual, and imminent.” Mylan
Labs., Ltd. v. FDA, 910 F. Supp. 2d 299, 313 (D.D.C. 2012) (citing Wis. Gas. Co. v. FERC, 758
F.2d 669, 674 (D.C. Cir. 1985)). Price cannot show that, “absent injunctive relief,” he is likely
to suffer certain harm, so the Court stops its analysis there. Id.31
Price says his injury is certain because once the records are placed in a third party’s
custody, they “are no longer available or accessible to the Plaintiff under FOIA/[the Privacy
Act].” TRO Mot. ¶ 24. This is unconvincing, for the same reasons that plagued Price’s FRA
argument on the merits. The Court cannot say with any certainty whether the records Price
sought in his FOIA requests are unavailable because of some unlawful recordkeeping practice
relating to the DOJ’s use of third-party software systems like CPS. Just as likely, if not more
likely, is that the records Price sought merely appeared unavailable under FOIA because of
improper search methods (which Price can probe via his FOIA claims) or that such records exist
but are exempt from disclosure under FOIA, perhaps because of the aforementioned carve-outs
for records relating to law enforcement investigative techniques, see 5 U.S.C. § 552(b)(7)(E),
and records whose release would amount to an unwarranted invasion of privacy, see id. §
552(b)(6). See supra 17–18. As a result, the Court cannot conclude that the injunction Price
seeks—forcing the agency to stop using programs like CPS and to “preserve the status quo of all
records,” TRO Mot. at 22—will have any effect on the universe of records Price may be able to
recover via FOIA. It likewise cannot conclude that, absent an injunction, Price is certain to
suffer the harm he alleges. That dooms his irreparable harm argument.
3. Balance of the Equities and the Public Interest
The third and fourth factors “merge when the Government is the opposing party.” Nken
v. Holder, 556 U.S. 418, 435 (2009). Under these factors, the Court “weighs the harm to [Price]
if there is no injunction against the harm to the [government] if there is.” Pursuing Am.’s
Greatness, 831 F.3d at 511.
As the Court has explained, Price’s harm argument is tenuous. The sinister scenario he
sketches—wherein the government willfully alienates or destroys, or allows to be alienated or
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destroyed, records relating to criminal prosecutions to conceal its investigative misconduct—is
hard for the Court to swallow. The government must maintain those sorts of records during
criminal prosecutions, for if it is unable to produce them or otherwise certify their existence and
integrity, then it may be forced to drop charges when courts order that such records (or the
software systems that create and maintain those records) be produced for inspection at trial. The
several cases cited by Price where the government has been forced into that position show as
much. See TRO Mot. ¶ 3 (citing, inter alia, United States v. Hartman, No. 15-CR-00063-JLS
(C.D. Cal. Jan. 21, 2016)).
But even if the Court takes it as a given that records relating to child pornography
investigations will be lost (potentially for good) so long as the government is permitted to
continue using third-party software programs like CPS, it strikes the Court that there might be
enormous countervailing costs to requiring federal law enforcement to stop using such programs.
The Child Rescue Coalition—which owns CPS, one of several third-party software tools used by
the government—reports that CPS’s technology helped lead to the arrest of over 1,300 child
sexual predators in 2018 alone. See Child Rescue Coalition, Annual Report 2018,
https://childrescuecoalition.org/wp-content/uploads/2019/04/CRC_Annual-Report.pdf.
Although the Court cannot say what number of those arrests (and subsequent prosecutions) were
carried out by federal authorities, it is reasonable to assume that enjoining the government from
using CPS and other like programs will hinder its ability to bring child sex criminals to justice.9
9
Price asserts without support that any government contention that third-party software
systems are “necessary to the successful interdiction of drug crimes, financial crimes, crimes
against children, or any other type of crime is equally self-serving and false.” TRO Mot. ¶ 34.
Maybe, but maybe not. But the fact that the government chooses to use these tools suggests they
are at least useful, if not strictly necessary, and Price has provided the Court with no reason,
beyond his unsupported assertion, to conclude otherwise.
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Price himself argues that the government’s use of these programs is extensive; their widespread
use implies at least some degree of efficacy. See, e.g., TRO Mot. ¶ 3 (“Defendants routinely
sought criminal indictments based . . . on records . . . removed or alienated from the Defendants’
custody[.]”); id. ¶ 10 n.5 (alleging records are missing for “10s of 1000s of convictions”). Thus,
while Price tries to reassure the Court that “[t]he relief sought by [him] does not stop the
Defendants from conducting lawful operations,” but “merely enjoins the Defendants from the
unlawful use of systems designed to thwart the law,” id. ¶ 37, the Court cannot know to what
extent the government’s enforcement efforts are dependent on the use of third-party programs
that Price contends is unlawful. Put simply, even assuming Price has a “right . . . to inspect
records, documents, information, and data that were created, collected, and required to be
preserved under the law,” id. ¶ 30, and that the government is violating that right, it is far from
evident that such an interest is greater than the government’s keen interest in effectively
combating child sex crimes.
* * *
Because neither one factor independently nor all four factors taken together counsels
clearly in favor of granting Price injunctive relief, the Court will deny both his request for a
temporary restraining order and a preliminary injunction. The Court adds, however, that it will
expect more from the government as this litigation progresses to briefing on dispositive motions.
While the government may want to wish away this lawsuit, it would be well-advised to take it
seriously, because Mr. Price certainly has—and it shows in the quantity and quality of the
submissions thus far in the case.
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IV. Conclusion
For the foregoing reasons, the Court will deny Mr. Price’s motion for a temporary
restraining order and preliminary injunction. A separate Order shall accompany this
memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: June 19, 2019
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