Motion to Reopen Huma Abedin Case

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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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 Secretary’s 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 Watch’s 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 Watch’s 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 Secretary’s 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 Department’s misrepresentation that it conducted a

search of the Office of the Executive Secretariat. It was lead to believe that the State

Department’s search was proper. It now knows it was not. Had Judicial Watch known that the

State Department’s search excluded Secretary Clinton’s 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 Watch’s 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.


Exhibit A

Case 1:13-cv-01363-EGS Document 13-1 Filed 03/12/15 Page 1 of 11











Exhibit B


Case 1:09-cv-00569-ESH Document 16-4 Filed 07/31/09 Page 1 of 29Case 1:13-cv-01363-EGS Document 13-2 Filed 03/12/15 Page 2 of 13












Exhibit C


Case 1:14-cv-00119-TSC Document 14-1 Filed 02/06/15 Page 2 of 44Case 1:13-cv-01363-EGS Document 13-3 Filed 03/12/15 Page 2 of 71






































































Documents

Motion to Reopen Huma Abedin Case