USCA Case #18-5150

Document #1789622

Filed: 05/28/2019

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2019

Decided May 28, 2019
No. 18-5150

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
AND NATIONAL SECURITY ARCHIVE,
APPELLANTS
v.
DONALD J. TRUMP, THE HONORABLE, PRESIDENT OF THE
UNITED STATES OF AMERICA AND EXECUTIVE OFFICE OF THE
PRESIDENT OF THE UNITED STATES,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01228)
George M. Clarke III argued the cause for appellants.
With him on the briefs was Anne L. Weismann.
Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was Abby
C. Wright, Attorney.
Before: TATEL and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Shortly after President Trump took
office, the press reported that White House personnel were
communicating over messaging apps that, unlike standard text
messaging
platforms
that
preserve
conversations,
automatically delete messages once read. Alleging that the use
of such apps violates the Presidential Records Act (PRA),
which requires the preservation of official presidential records,
Citizens for Responsibility and Ethics in Washington and the
National Security Archive (collectively, “CREW”) sued,
seeking a writ of mandamus prohibiting the use of such apps
and requiring the White House to issue guidelines to ensure
compliance with the PRA. The district court denied the writ,
and we affirm. As explained below, CREW has failed to
establish the most fundamental element of mandamus: a clear
and indisputable right to relief.
I.
Enacted in the wake of Watergate and the ensuing struggle
over Congress’s authority to access former-President Nixon’s
records, the Presidential Records Act “establish[es] the public
ownership of records created by . . . presidents and their staffs
in the course of discharging their official duties.” H.R. Rep.
No. 95-1487, 95th Cong. at 2 (1978). Although the PRA makes
clear that the United States “retain[s] complete ownership,
possession, and control of Presidential records,” 44 U.S.C.
§ 2202, it also provides that the President, during his term in
office, shall assume “exclusive[] responsib[ility] for custody,
control, and access to such Presidential records,” id. § 2203(f).
The PRA sets out three basic requirements for the handling of
presidential records during a president’s tenure.
First, the Act requires that records “shall, to the extent
practicable, be categorized as Presidential records or personal

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records upon their creation or receipt and be filed separately.”
Id. § 2203(b). The PRA defines “[p]residential records”
broadly to include all “documentary materials” “created or
received by the President,” his staff, and his advisors “in the
course of conducting activities which relate to or have an effect
upon the carrying out of the constitutional, statutory, or other
official or ceremonial duties of the President.” Id. § 2201(2).
Second, the statute regulates the disposal of presidential
records. “[T]he President may dispose of . . . records . . . that
no longer have administrative, historical, informational, or
evidentiary value,” but only after “obtain[ing] the views, in
writing, of the Archivist.” Id. § 2203(c). The Archivist may
seek Congress’s advice on the proposed disposal if he believes
that doing so “is in the public interest.” Id. § 2203(e). Disposal
decisions matter because presidential records—if not
previously discarded, that is—become available for public
release several years after a president leaves office. See id.
§ 2204(b)(2) (providing that “[a]ny such record which does not
contain [statutorily exempted] information” shall be publicly
available pursuant to the relevant Freedom of Information Act
(FOIA) provisions “5 years after the date on which the
Archivist obtains custody of such record”).
Third, the PRA directs the President, “[t]hrough the
implementation of records management controls and other
necessary actions,” to “take all such steps as may be necessary
to assure that [presidential] activities . . . are adequately
documented and that such records are preserved and
maintained as Presidential records.” Id. § 2203(a).
Richard Nixon could only have dreamed of the technology
at issue in this case: message-deleting apps that guarantee
confidentiality by encrypting messages and then erasing them
forever once read by the recipient. Such apps, according to an

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article appearing in the Wall Street Journal just four days after
President Trump’s inauguration, were being used by White
House staff “to communicate with each other about presidential
or federal business.” Complaint for Declaratory, Injunctive, and
Mandamus Relief ¶ 50 (citing Mara Gay, Messaging App Has
Bipartisan Support Amid Hacking Concerns, Wall Street
Journal (Jan. 24, 2017), https://www.wsj.com/articles/messag
ing-app-has-bipartisan-support-amid-hacking-concerns-14852
15028); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007) (“accept[ing] all factual allegations in the
complaint as true” at the motion-to-dismiss stage).
This and other similar accounts piqued the interest of
several members of the Oversight and Government Reform
Committee of the U.S. House of Representatives, who sent a
letter to White House Counsel expressing their concern that the
use of message-deleting apps “could result in the creation of
presidential or federal records that would be unlikely or
impossible to preserve.” Letter from Jason Chaffetz, Chairman
& Elijah E. Cummings, House Oversight Committee to Donald
McGahn, Counsel to the President 2 (Mar. 8, 2017). They
asked Counsel to “[i]dentify policies and procedures currently
in place to ensure all communications related to the creation or
transmission of presidential records . . . are . . . preserved as
presidential records.” Id. at 3. In response, a White House
official assured the members that the President was “committed
to preserving records of activities” relating to his
“constitutional, statutory or other official or ceremonial
duties.” Letter from Marc T. Short, Assistant to the President
to Jason Chaffetz & Elijah E. Cummings, House Oversight
Committee 1 (Apr. 11, 2017) (“Short Letter”). “All White
House employees,” the official added, “have been trained on
their responsibilities under the PRA,” id. at 1, and the Office of
the Counsel to the President “provides written guidance to
inform employees of PRA requirements,” id. at 2.

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Though it was not public at the time, in February 2017, as
press attention to the messaging practice spread and before this
lawsuit commenced, White House Counsel circulated an
internal memo describing the staff’s PRA obligations
(“February 2017 Memo”). See generally Memorandum for All
Personnel Regarding Presidential Records Act Obligations
(Feb. 22, 2017), https://go.usa.gov/xEckn (National Archives).
Subsequently released pursuant to the Freedom of Information
Act, the Memo prohibits the use of “instant messaging systems
. . . or other internet-based means of electronic communication
to conduct official business,” and directs White House
personnel to “conduct all work-related communications on
[their] official . . . email account[s]” and to “preserve electronic
communications that are presidential records.” Id. at 2–3. On
the same day the Memo issued, White House Counsel sent a
“Compliance Reminder Email” advising staff that the “[u]se of
. . . messaging apps (such as Snapchat, Confide, Slack or
others) . . . is not permitted” for any “work-related
communications.” See Email from White House Counsel at 2
(Feb.
22,
2017),
https://www.archives.gov/files/foia/
Passantino%20Email%201%20of%202_redacted.pdf
(National Archives).
The House Oversight Committee was not the only group
troubled by the White House’s use of message-deleting apps.
Alleging that “White House staff who use such apps cannot be
in compliance with the PRA,” Appellants’ Br. 29, CREW sued,
seeking a writ of mandamus compelling the president and the
Executive Office (collectively, the “White House”) to comply
with their ostensibly “non-discretionary duties” under the
statute: to categorize records as presidential or personal; to
follow certain procedures, including notifying the Archivist,
before disposing of records; and to implement record
management guidelines. See generally Swan v. Clinton, 100
F.3d 973, 977 (D.C. Cir. 1996) (explaining that to qualify for

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mandamus relief a plaintiff must identify a non-discretionary
or “ministerial” duty). CREW also sought a declaration that the
White House’s knowing use of message-deleting apps and its
failure to issue guidelines concerning such apps violate the
PRA.
The district court, focusing only on the duty to implement
record management guidelines, concluded that nothing in the
PRA “obligates the President to perform any duty with the
requisite level of specificity that mandamus requires.” Citizens
for Responsibility & Ethics in Washington v. Trump, 302 F.
Supp. 3d 127, 136 (D.D.C. 2018). Because CREW had
therefore “failed to state a valid mandamus claim,” the court
granted the White House’s motion to dismiss. Id. at 137.
CREW moved to alter or amend the judgment pursuant to
Federal Rule of Civil Procedure 59(e), pointing out that the
district court had not addressed whether the use of messagedeleting apps violated the other two duties identified in the
complaint (records categorization and pre-disposal
notification). The court denied the motion. Finding that CREW
had failed to develop those arguments in the complaint and
opposition to the motion to dismiss, the court concluded that
“CREW forfeited its arguments that either of the two duties it
now points to . . . are ministerial duties supporting a mandamus
claim.” Citizens for Responsibility & Ethics in Washington v.
Trump, No. 17-1228, slip op. at 2 (D.D.C. June 25, 2018). And
even if not forfeited, the district court explained, those
arguments were “unavailing” as “[n]owhere does the [PRA]
specifically prohibit the use of any particular means of
communication.” Id. at 3.
CREW appeals both decisions. “We review the threshold
requirements for mandamus jurisdiction de novo.” American
Hospital Ass’n v. Burwell, 812 F.3d 183, 190 (D.C. Cir. 2016);

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see also King v. Jackson, 487 F.3d 970, 972 (D.C. Cir. 2007)
(reviewing de novo a grant of a motion to dismiss).
II.
“[T]he remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations.” Allied Chemical Corp. v.
Daiflon, Inc., 449 U.S. 33, 34 (1980). In order to obtain
mandamus relief, a plaintiff must demonstrate (1) a “clear and
indisputable right to relief,” (2) that the government official has
a “clear duty to act,” and (3) that “no adequate alternative
remedy exists.” American Hospital, 812 F.3d at 189. “These
three threshold requirements are jurisdictional; unless all are
met, a court must dismiss the case for lack of jurisdiction.” Id.;
see also Montrois v. United States, 916 F.3d 1056, 1060 (D.C.
Cir. 2019) (observing that the court “must assure [itself] of the
existence of jurisdiction”).
In order to satisfy the first requirement at this stage of the
litigation, i.e. motion to dismiss, CREW must plausibly allege
that the White House is, in effect, defying the law. See In re
Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013) (granting
mandamus relief because “the Commission [wa]s simply
defying a law enacted by Congress, and the Commission [wa]s
doing so without any legal basis”); see generally Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (At the motion-to-dismiss
stage, a court must “determine whether [the facts alleged]
plausibly give rise to an entitlement to relief.”). CREW has
failed to do so for two interrelated reasons. First, by issuing the
February 2017 Memo, the White House has instructed its staff
to comply with the PRA, and it has done so by prohibiting the
use of message-deleting apps and restricting electronic
communications to official email accounts that automatically
preserve records. To be sure, the Memo may not guarantee full
compliance with the PRA, but—and this is the second reason—
under the law of this circuit we would have no jurisdiction to

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order the correction of any defects in the White House’s dayto-day compliance with the Memo’s records-preservation
policy.
We begin with the February 2017 Memo, which White
House Counsel prepared and distributed for the very purpose
of “remind[ing] all personnel of their obligation to preserve and
maintain presidential records, as required by the Presidential
Records Act.” February 2017 Memo, at 1. The Memo
summarizes the statute, “outlines what materials constitute
‘presidential records,’” distinguishes between “presidential”
and “[p]urely personal” records, id. at 2, and describes “what
steps [personnel] must take to ensure [presidential records’]
preservation,” id. at 1. The Memo prohibits the use of
unofficial
“internet-based
means
of
electronic
communications” and “instant messaging systems,” and it
requires personnel to “preserve electronic communications that
are presidential records” and to use official email accounts for
“all work-related communications.” Id. at 2–3. And finally, the
Memo forbids White House personnel from “dispos[ing] of
presidential records,” warning that “[a]ny employee who
intentionally fails to take these actions may be subject to
administrative or even criminal penalties.” Id. at 3. In short, the
Memo does just what the PRA requires.
CREW insists that we may not consider the February 2017
Memo at this motion-to-dismiss stage of the litigation. See
Hurd v. District of Columbia, 864 F.3d 671, 675 (D.C. Cir.
2017) (finding that “the district court erred in dismissing [a]
claim based on material beyond the complaint, and not
incorporated by reference in it”). We disagree: the Memo is
clearly subject to judicial notice. See Kaspersky Lab, Inc. v.
United States Department of Homeland Security, 909 F.3d 446,
464 (D.C. Cir. 2018) (“Among the information a court may
consider on a motion to dismiss are public records subject to

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judicial notice.” (internal quotation marks omitted)). Indeed,
the Memo represents the White House’s official position, it is
publicly available on the National Archives’ website, and
CREW nowhere challenges its authenticity.
CREW argues that even if the February 2017 Memo may
be considered, it fails to satisfy the three PRA obligations at
issue in this case. We address each in turn, assuming for the
sake of discussion that CREW has preserved its claims and that
each of the three PRA obligations at issue creates a nondiscretionary “duty to act.” American Hospital, 812 F.3d
at 189.
CREW’s first argument focuses on the statutory duty to
“categorize[]” records. 44 U.S.C. § 2203(b). “Because
message-deleting apps automatically and instantaneously
delete messages after a recipient reads them,” CREW argues,
“they preclude any categorization of records.” Appellants’
Br. 36. But the February 2017 Memo responds to this concern
by directing staff to use official email accounts that
“automatically archive[]” communications rather than
unofficial
“internet-based
means
of
electronic
communications,” a category that clearly encompasses
message-deleting apps. February 2017 Memo, at 2–3. Indeed,
the simultaneously-issued Compliance Reminder Email—of
which we also take judicial notice—expressly prohibits
message-deleting apps “such as Snapchat [and] Confide,”
Compliance Reminder Email, at 2, and the February 2017
Memo directs that if White House personnel ever generate or
receive presidential records on such platforms they “must
preserve [the messages] by sending them to [an official] email
account via a screenshot or other means,” February 2017
Memo, at 3; see also Oral Argument 41:20–41:44 (CREW’s
counsel conceding that it is possible to take pictures of
messages received on message-deleting apps before the

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messages disappear). And having required the preservation of
all communications, the Memo directs staff to comply with the
PRA’s categorization requirement: “electronic communications
that are presidential records” “must [be] preserve[d],” but
“[p]urely personal records . . . do not need to be preserved.”
February 2017 Memo, at 2.
CREW’s second argument—that the use of messagedeleting apps violates the President’s duty to follow certain
notification procedures before disposing of records, see 44
U.S.C.
§ 2203(c)–(e)
(pre-disposal
notification
requirements)—fails for the same reason: the February 2017
Memo and the Compliance Reminder Email prohibit the use of
message-deleting apps. To be sure, the Memo says nothing
about the PRA’s notification requirement, but it expressly
forbids White House personnel from “dispos[ing] of
presidential records,” February 2017 Memo, at 3, and CREW
has pointed to nothing suggesting that, after the initial
preservation of emails via automatic archiving, the White
House will violate the PRA’s pre-disposal notification
procedures.
Third, CREW claims that the President has failed to
“implement . . . records management controls.” 44 U.S.C.
§ 2203(a). But by distributing the February 2017 Memo, which
instructs personnel on which devices to “conduct” their work
and which records to “preserve,” February 2017 Memo, at 2,
the White House has implemented a form of records
management controls for presidential records.
Citing recent articles alleging that White House personnel
have continued using message-deleting apps even after
issuance of the February 2017 Memo, CREW alleges that the
Memo has proved ineffective in bringing the White House into
compliance with the PRA. It may well be, as CREW puts it,

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that questions about “what is actually happening in the White
House,” Appellants’ Reply Br. 11, remain unanswered. But
these types of “open questions” regarding the precise scope and
effect of the facially PRA-compliant February 2017 Memo “are
the antithesis of the ‘clear and indisputable’ right needed for
mandamus relief.” In re Al-Nashiri, 835 F.3d 110, 137 (D.C.
Cir. 2016) (quotation marks omitted); see In re Bluewater
Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (observing that
mandamus relief is “reserved only for the most transparent
violations” of duties to act).
The February 2017 Memo unquestionably speaks to the
White House’s efforts to satisfy the President’s PRA
obligations, and in its brief here the White House confirms
what the Compliance Reminder Email makes explicit: that the
Memo “covers the kinds of messaging applications at issue.”
Appellees’ Br. 17; see also In re Khadr, 823 F.3d 92, 98 (D.C.
Cir. 2016) (denying mandamus based on the government’s
representations that it was complying with statutory prohibition
against “attempt[ing] to coerce” a military judge (internal
quotation marks omitted)). Given this, not to mention other
steps the White House has taken, such as mandatory PRA
training, see Short Letter, at 2 (“All White House personnel
have received or will receive mandatory in-person training on
their obligations under the PRA.”), we have no basis for saying
that the President “is simply defying a law enacted by
Congress,” In re Aiken County, 725 F.3d at 266.
This brings us to the second and related obstacle to
mandamus relief: even if, as CREW alleges, the February 2017
Memo is imperfectly enforced, we would lack jurisdiction to
order the White House to take corrective action. That
proposition flows not just from the nature of mandamus—the
violation must be “clear and indisputable,” American Hospital,
812 F.3d at 189—but also directly from this court’s two key

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PRA precedents, Armstrong v. Bush (Armstrong I), 924 F.2d
282 (D.C. Cir. 1991), and Armstrong v. Executive Office of the
President (Armstrong II), 1 F.3d 1274 (D.C. Cir. 1993) (per
curiam).
In Armstrong I, the plaintiffs, fearing that then-President
George H.W. Bush was mishandling presidential and federal
records from the tail end of the Reagan Administration, alleged
that Bush’s “inten[tion] to delete material from the White
House computer systems” ran afoul of the PRA and other
statutes. 924 F.2d at 286. We dismissed those claims, holding
that given “the intricate statutory scheme Congress carefully
drafted to keep in equipoise important competing political and
constitutional concerns,” id. at 290, “the PRA precludes
judicial review of the President’s recordkeeping practices and
decisions,” id. at 291.
Two years later, the case returned to our court, this time
focusing (in part) on guidelines issued by the White House to
distinguish between presidential and federal records. The
plaintiffs alleged that the guidelines violated FOIA and the
Federal Records Act because they classified federal records,
generally subject to immediate public release, see 5 U.S.C.
§ 552 (FOIA record publication provisions), as presidential
records, which, pursuant to the PRA, do not become eligible
for release until five years after the President leaves office (or
later if the documents contain certain sensitive material), see
Armstrong II, 1 F.3d at 1290–91 (comparing the two regimes).
We rejected the government’s argument that Armstrong I
barred this claim, explaining that the case “does not stand for
the unequivocal proposition that all decisions made pursuant to
the PRA are immune from judicial review.” Id. at 1293. Quite
to the contrary, when determining whether the Executive’s
definition of “presidential records” subverts FOIA by labeling
as “presidential” those federal records that are otherwise

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subject to immediate public release, we have authority to
“review guidelines outlining what is, and what is not, a
‘presidential record.’” Id. at 1294.
CREW and the White House have very different views
about the implications of Armstrong I and II for this case.
CREW interprets Armstrong II as authorizing courts to review
“the Executive’s ability to exempt an entire class of records
(those created on message-deleting applications) from the
PRA’s reach.” Appellants’ Reply Br. 23. By contrast, the
White House argues that the Armstrong decisions prohibit
courts from reviewing any “claims that the President failed to
comply with requirements of the [PRA].” Appellees’ Br. 8. But
we need not resolve that debate because even CREW agrees
that when it comes to compliance with the PRA, courts have no
jurisdiction to review the President’s “day-to-day operations.”
Appellants’ Reply Br. 23. As Armstrong I makes clear—and
Armstrong II nowhere casts in doubt—when enacting the PRA,
“Congress . . . sought assiduously to minimize outside
interference with the day-to-day operations of the President.”
Armstrong I, 924 F.2d at 290. That, however, is precisely what
CREW now asks us to do. Determining whether White House
personnel are in fact complying with the directive to conduct
all work-related communication on official email would
require just the kind of micromanaging proscribed by
Armstrong I.
Together, then, the February 2017 Memo and Armstrong I
establish that CREW has no “clear and indisputable right to
[mandamus] relief,” American Hospital, 812 F.3d at 189, thus
depriving this court of jurisdiction, see Walpin v. Corp. for
National & Community Services, 630 F.3d 184, 187 (D.C. Cir.
2011) (denying mandamus because the President had
“satisfie[d] the minimal statutory mandate”); cf. In re Aiken
County, 725 F.3d at 266 (granting mandamus because, despite

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several warnings, an agency had steadfastly refused to heed a
clear statutory mandate). Given that CREW has failed at the
threshold requirement of mandamus, we have no need to
address the remaining two. See In re Trade & Commerce Bank,
890 F.3d 301, 303 (D.C. Cir. 2018) (per curiam) (explaining
that where the plaintiff has no clear and indisputable right to
relief, the court may “begin and end with the first” of the three
mandamus requirements).
This resolution also disposes of CREW’s claims for
declaratory relief. For the same reasons that we decline to
“resort to mandamus” to micromanage the President’s day-today compliance with the PRA, we shall “not entertain [a claim]
for declaratory relief.” Cartier v. Secretary of State, 506 F.2d
191, 200 (D.C. Cir. 1974).
III.
For the foregoing reasons, we affirm.
So ordered.

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