UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
Plaintiff,
v. Civil Action No. 25-cv-719 (TSC)
U.S. AGENCY FOR INTERNATIONAL
DEVELOPMENT, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff American Oversight sues the U.S. Agency for International Development
(“USAID”), the National Archives and Records Administration (“NARA”), and Secretary Marco
Rubio in his official capacity as Acting USAID Administrator and Archivist of the United States,
alleging violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.; the
Federal Records Act (“FRA”), 44 U.S.C. § 3101, et seq.; and the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, et seq. See Am. Compl. ¶ 1, ECF No. 12. Defendants move to dismiss
Counts One through Three of the Amended Complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. See
generally Mot. to Dismiss, ECF No. 16-1; see Am. Compl. ¶¶ 119–145. For the reasons below,
the court will GRANT Defendants’ Partial Motion to Dismiss.
I. BACKGROUND
USAID has historically been “the lead international humanitarian and development arm of
the U.S. government.” Cong. Rsch. Serv., U.S. Agency for International Development: An
Overview (Jan. 6, 2025). “Until recently, USAID used its appropriated funds to support
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humanitarian and development projects in approximately 120 foreign countries—both via its
independent work and via grants awarded to partner organizations and governments.” Am. Foreign
Serv. Ass’n v. Trump, 792 F. Supp. 3d 116, 123 (D.D.C. 2025). The day he took office,
President Trump issued an Executive Order declaring that “[t]he United States foreign aid industry
and bureaucracy are not aligned with American interests and in many cases [are] antithetical
to American values,” Exec. Order. 14169, 90 Fed. Reg. 8619 (Jan. 20, 2025), and began the
process of shutting down the agency. By February 1, 2025, USAID’s website was taken down,
Am. Compl. ¶¶ 42–43, and a few days later, the Trump administration announced it was placing
on leave “all direct hire personnel . . . with the exception of designated personnel responsible for
mission critical functions, core leadership and specially designated programs,” id. ¶ 46. On March
11, a USAID official reportedly directed remaining employees to “empty out the classified spaces
and personnel files” and “[s]hred as many documents first, and reserve the burn bags for when the
shredder becomes unavailable or needs a break.” Id. ¶ 48.
That same day, Plaintiff, a non-profit organization that aims to promote “transparency in
government,” id. ¶ 17, filed its original Complaint, alleging that these actions violated the APA,
FRA, and FOIA, see generally Compl., ECF No. 1. The next day, Plaintiff moved for a temporary
restraining order instructing the agency to “[i]mmediately desist from unlawfully destroying
federal records” and provide a copy of relevant recordkeeping and FOIA processing policies or
guidance not available on the public website. See Mot. for TRO, ECF No. 5-4. In response,
Defendants filed several declarations describing USAID’s handling of records at the agency’s
offices in the Ronald Reagan Building in Washington, D.C. and committing to provide advance
notice before any further destruction of records. See ECF Nos. 7-2, 8-1. Erica Carr, Acting USAID
Executive Secretary, attested that USAID would not destroy “any additional documents after
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March 11, 2025, without first notifying” opposing counsel “and providing an opportunity to raise
the issue before this Court.” Carr Decl. at 2, ECF No. 7-2. Leo Ruth, Acting USAID Director of
Security, likewise declared that USAID “will not destroy any additional documents stored in
USAID offices of the Ronald Reagan Building without giving notice to the Plaintiff and an
opportunity for Plaintiff to raise the issue with this court.” Ruth Decl. ¶ 3, ECF No. 8-1. Finally,
William Fischer, NARA Acting Chief Records Officer, declared that USAID’s Agency Records
Officer stated that the agency was only “disposing” of “non-records which includes reference
materials, copies, drafts, and deliberative unclassified/classified documents that staff printed as
supporting meeting materials.” Fischer Decl. ¶ 8(c), ECF No. 7-1.
After a hearing, the court held Plaintiff’s motion for a temporary restraining order in
abeyance and ordered the parties to meet and confer. See Min. Order (Mar. 13, 2025). The parties
engaged in a series of discussions to address Plaintiff’s concerns, culminating in an agreed-upon
plan for the disposition of records housed at the Ronald Reagan Building in Washington, D.C. See
Heiman Decl., ECF No. 16-3, Ex. C. Plaintiff then withdrew its motion for a temporary restraining
order. See ECF No. 10.
Several additional events transpired during this period. On March 28, 2025, USAID
notified nearly all employees via email that they would be terminated as part of a Reduction in
Force initiative and that they could choose to take “voluntary administrative leave,” in which case
they may lose access to certain USAID systems. Am. Compl. ¶¶ 50, 52. On April 24, the agency
circulated another memorandum to employees stating that upon termination, government-issued
equipment—including cell phones, tablets, and laptops—would be “remotely wiped,” including
for previously-terminated contractors. Id. ¶¶ 51, 54.
On May 9, 2025, Plaintiff filed an Amended Complaint, incorporating the various
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intervening events and alleging that Defendants’ revised statements of policy did not adequately
safeguard agency records from loss or destruction. Id. ¶ 1. Plaintiff seeks declaratory and
injunctive relief under the APA. Id. On June 30, Defendants filed a motion to dismiss Counts
One through Three of the Amended Complaint. ECF No. 16.
II. LEGAL STANDARD
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized
by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). “[A] plaintiff bears the burden of
establishing by a preponderance of the evidence that the Court possesses jurisdiction.” Hallinan
v. United States, 498 F. Supp. 2d 315, 316 (D.D.C. 2007). Failure to adequately plead Article
III standing is grounds for dismissal for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). See Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “[I]n
deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to
the allegations in the complaint, but may also consider material outside of the pleadings in its effort
to determine whether the court has jurisdiction in the case.” Alliance for Democracy v. FEC, 362
F. Supp. 2d 138, 142 (D.D.C. 2005). While the court “must accept all of the factual allegations in
the complaint as true,” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005) (cleaned up), it “need not accept factual inferences drawn by plaintiffs if those inferences
are not supported by facts alleged in the complaint, []or . . . accept plaintiffs’ legal conclusions,”
Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).
To establish Article III standing, a plaintiff “must show that she has suffered, or will suffer,
an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged
action; and redressable by a favorable ruling.” Murthy v. Missouri, 603 U.S. 43, 57 (2024)
(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). “[W]hen a plaintiff seeks
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prospective relief such as an injunction, the plaintiff must establish a sufficient likelihood of future
injury,” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024), which is
satisfied by showing “a real and immediate threat of repeated injury,” Murthy, 603 U.S. at 58
(quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
The FRA is “a collection of statutes governing the creation, management, and disposal of
records by federal agencies.” Pub. Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir. 1999). The
statute requires agencies to “make and preserve records containing adequate and proper
documentation of the organization, functions, policies, decisions, procedures, and essential
transactions.” 44 U.S.C. § 3101. “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.’ 44 U.S.C. §
3106(a). If the agency head fails to do so ‘within a reasonable period of time,’ the Archivist must
do the same. Id. § 3106(b).” Cause of Action Inst. v. Pompeo, 319 F. Supp. 3d 230, 232–33
(D.D.C. 2018). “If the agency head and the Archivist ignore the statute, private litigants may sue
under the Administrative Procedure Act to enforce it,” id., alleging under 5 U.S.C. § 706(1) “that
an agency failed to take a discrete agency action that it is required to take,” Jud. Watch, Inc. v.
Kerry, 844 F.3d 952, 954 (D.C. Cir. 2016) (quoting Norton v. S. Utah Wilderness All., 542 U.S.
55, 64 (2004)); see 5 U.S.C. § 706(1).
III. ANALYSIS
Counts One through Three involve claims under the FRA and APA arising from USAID’s
alleged failure to preserve federal records. Count One, as narrowed in Plaintiff’s briefing, alleges
that USAID and Acting Administrator Rubio failed to maintain an adequate recordkeeping
program under the FRA as to (1) “employee and contractor records not already saved on USAID
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systems,” (2) “physical records,” and (3) “records stored on USAID’s website, to the extent they
are subject to impending or threatened removal, alteration, or destruction.” Opp’n to Mot. to
Dismiss at 27, 29; see Am. Compl. ¶¶ 119–126. Count Two alleges that USAID and Acting
Administrator Rubio failed to notify the Archivist of the unlawful record removal and initiate an
enforcement action through the Attorney General to recover the unlawfully removed records, in
violation of 44 U.S.C. § 3106(a). Am. Compl. ¶¶ 127–140. Count Three alleges that NARA and
Acting Archivist Rubio failed to initiate a recovery action through the Attorney General when the
agency head (also Rubio) failed to do so, in violation of 44 U.S.C. § 3106(b). Id. ¶¶ 141–145.
While the Amended Complaint does not specify any form or scope of injunctive relief, Plaintiff’s
briefing specifies that the court can redress Count One by “ordering USAID to provide . . . [its]
operative recordkeeping policy” and requiring revisions “if that policy is legally inadequate”;
Count Two by “ordering USAID and Acting Administrator Rubio to fulfill [their] obligations
under Section 3106(a) of the FRA”; and Count Three by “ordering NARA and Acting Archivist
Rubio to refer this matter to the Attorney General to initiate an action for recovery or other
redress.” Opp’n to Mot. to Dismiss at 4–5.
Plaintiff’s theory of standing to seek prospective relief rests on its ability to obtain records
in response to its FOIA requests to USAID. See Am. Compl. ¶¶ 18 n.31, 124–125; Opp’n to Mot.
to Dismiss at 26–27. Plaintiff reasons that as long as Defendants continue their policy of records
destruction, records responsive to its pending FOIA requests will become unavailable. See Opp’n
to Mot. to Dismiss at 32. Plaintiff, however, has failed to adequately plead an imminent threat of
future injury from improper destruction or removal of relevant records. And to the extent Plaintiff
rests its claims on physical records that were already destroyed on March 11, 2025, recovery of
such records is speculative at best, barring redressability. Absent either a concrete prospective
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injury or a redressable past injury, Counts One through Three are nonjusticiable.
1. Physical Records Housed Outside of the D.C. Area
Plaintiff alleges “a pervasive de facto policy, implemented on a wide scale across the
agency,” authorizing unlawful destruction of records, including physical records housed in USAID
offices outside of the D.C. area. Opp’n to Mot. to Dismiss at 16. As to such physical records,
Plaintiff’s argument appears to be that because the agency employed an overbroad definition of
non-records in connection with decommissioning procedures at the Ronald Reagan Building and
corrected that policy only for records housed in the D.C. area, records located outside of the D.C.
area are still at risk of unlawful destruction. See Opp’n to Mot. to Dismiss at 29–30. As evidence
of such a policy, Plaintiff points to a USAID officer’s statement that on March 11, 2025, the agency
disposed of “non-records, which includes reference materials, copies, drafts, and deliberative
unclassified/classified documents that staff printed as supporting meeting materials.” Fischer
Decl. ¶ 8(c); see Am. Compl. ¶¶ 72–73. At the hearing on Plaintiff’s motion for a temporary
restraining order, the court observed that this characterization—in particular the characterization
of “deliberative unclassified/classified documents that staff printed as supporting meeting
materials”—was “problematic.” Hearing Tr., ECF No. 11, 6:13–17, 18:7–11; see 44 U.S.C. §
3301(a)(1)(A) (broadly defining “records” to include “all recorded information . . . made or
received by a Federal agency under Federal law or in connection with the transaction of public
business and preserved . . . as evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the United States Government or because of the
informational value of data in them”).
Plaintiff now concedes that the later, agreed-upon policy memorialized in the Heiman
Declaration complies with the FRA. See Opp’n to Mot. to Dismiss at 29. Plaintiff nonetheless
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asks the court to assume, based merely on the fact that the updated policy mentions only “USAID
spaces in the National Capital Region” that the agency would apply an overbroad definition of
non-records outside of that area. Heiman Decl. ¶¶ 13–14, ECF No. 16-3, Ex. C; see Opp’n to Mot.
to Dismiss at 29–30. But Plaintiff offers no evidence that the USAID officer’s errant definition of
“non-records” in connection with decommissioning procedures at the Ronald Reagan Building,
see Fischer Decl. ¶ 8(c), reflected a default policy applicable to other locations. In fact, the record
suggests otherwise. According to the Carr Declaration, “[c]lassified documents housed in Bureaus
and Offices that were unable to provide assistance with this effort remain untouched, and classified
records remain in their respective classified safes for those Bureaus and Offices that did not
participate.” Carr Decl. ¶ 7. Absent “contrary evidence in the record [or] evidence of agency bad
faith,” Citizens for Responsibility & Ethics in Washington v. Dep’t of Labor, 478 F. Supp. 2d 77,
80 (D.D.C. 2007) (cleaned up), Plaintiff fails to establish sufficient affirmative or non-speculative
evidence of a “certainly impending” injury from improper destruction of records housed outside
of the D.C. area, Clapper, 568 U.S. at 410.
2. Employee and Contractor Records on Government-issued Devices
Plaintiff also alleges that USAID’s recordkeeping policies were insufficient to preserve all
electronic records saved on government-issued devices, including text messages and similar
communications, before those devices were remotely wiped. See Am. Compl. ¶¶ 53–55. In
reaching this conclusion, Plaintiff interprets the agency’s offboarding policy as described in the
Kahn Declaration, requiring departing employees to confirm that they have transferred “electronic
documents on personal electronic devices . . . to an accessible recordkeeping system or to [a]
supervisor and/or successor,” to exclude “government-issued devices.” Am. Compl. ¶¶ 51, 55
(citing Kahn Decl. ¶¶ 3, 7, ECF No. 16-2); see Opp’n to Mot. to Dismiss at 28. Plaintiff also
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reasons that the transfer of records to a supervisor or successor does not ensure their preservation
given the mass termination of USAID employees. See Am. Compl. ¶ 50; Opp’n to Mot. to Dismiss
at 28. But the agency also requires confirmation that departing employees have “transmitted all
official records created or received on any personal messaging platforms so that they are
retrievable and accessible”—a requirement that is not limited to personal devices. Kahn Decl. ¶
7. And as to “records on official agency applications[,] . . . remotely wiping the devices will not
destroy any unique records,” as such records are backed up on USAID systems. Id. ¶ 4. In light
of these statements, Plaintiff fails to allege a non-speculative basis on which to infer future
destruction of electronic communication records on government-issued devices.
3. Website Records
Plaintiff also contends that “[t]o the extent that USAID plans (or at least refuses to disclaim
the option) to delete its stored website records as the agency is dismantled, Plaintiff will suffer
future injury to its interests in its pending and future FOIA requests.” Opp’n to Mot. to Dismiss
at 31; see Am. Compl. ¶¶ 128–131. Such speculation, standing alone, cannot form the basis of an
allegation of a “real and immediate threat” of injury, Murthy, 603 U.S. at 58, especially given the
Kahn Declaration’s assurance that USAID’s “website still exists in USAID systems” and that the
“status” of materials on the website and “how they will be housed has not yet been determined,”
Kahn Decl. ¶ 8; cf. Heiman Decl. ¶ 11, Ex. C (“Since USAID does not have a NARA-approved
record schedule for its web-content, webpages are unscheduled records that must be treated as
permanent until there is a NARA-approved disposition authority.”). Absent evidence that website
materials relevant to Plaintiff’s FOIA requests are subject to imminent deletion, Plaintiff has failed
to adequately allege a sufficiently concrete likelihood of future injury as USAID’s website records.
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4. Physical Records Destroyed on March 11, 2025
Plaintiff’s claim as to physical records unlawfully destroyed on March 11, 2025, is
separately nonjusticiable for lack of redressability. Plaintiff claims that “Defendants could remedy
this injury [by] taking steps to recover the records or referring the matter to the Attorney General.”
Opp’n to Mot. to Dismiss at 31. “A plaintiff lacks standing if it is ‘merely speculative’ rather than
‘likely’ that a decision in the plaintiff’s favor would redress the alleged injury.” Cause of Action
Inst., 319 F. Supp. 3d at 234 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
“In the Federal Records Act context, redressability requires a ‘substantial likelihood’ that records
will be recovered; a referral to the Attorney General, if ‘pointless’ because the records are
unrecoverable, is not enough.” Am. C.L. Union Found. of Fla. v. U.S. Immigrs. & Customs Enf’t,
2023 WL 6461053, at *6 (D.D.C. Aug. 31, 2023); see Cause of Action Inst., 319 F. Supp. 3d at
234.
Even assuming USAID unlawfully disposed of certain classified records, such records
would have been “destroyed completely to preclude recognition or reconstruction.” 36 C.F.R. §
2001.47; see Nat’l Sec. Agency/Cent. Sec. Serv., Requirements for Paper Shredders § 4.1 (Apr.
2021) (requiring paper shredders that “shred paper or CDs to a maximum edge size of 1 millimeter
by 5 millimeters”). 1 Plaintiff offers no evidence that the agency did not comply with applicable
regulations in destroying the classified materials it identified for disposal. “With these federal
records apparently fatally lost,” there is “no substantial likelihood that referral to the Attorney
General will yield any fruit,” and Plaintiff’s claim as to any unauthorized destruction of physical
records is not redressable. Cause of Action Inst., 319 F. Supp. 3d at 236; see Jud. Watch, Inc., 844
1
According to the Carr Declaration, only classified documents were destroyed as part of the decommissioning of the Ronald Reagan Building. See Carr Decl. ¶ 8.
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F.3d at 956 (noting that agency head or Archivist must initiate action with the Attorney General
unless they either recover all the missing records or “establish their fatal loss”); cf. Piper v. U.S.
Dep’t of Just., 294 F. Supp. 2d 16, 22 (D.D.C. 2003) (“Destroyed documents are nonexistent and
nonexistent documents cannot remain in someone’s possession.”).
* * *
These failures are fatal to Counts One through Three. A plaintiff must demonstrate
standing specific to the forms of relief it seeks. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
335 (2006). As explained above, the Amended Complaint does not supply specific evidence—
and given the agency’s declarations, the court cannot draw a reasonable inference—that USAID
currently lacks an adequate recordkeeping policy, that any such policy is being violated on an
ongoing basis, or that records relevant to Plaintiff’s FOIA requests are at imminent risk of unlawful
destruction. Absent such allegations, none of Plaintiff’s requested remedies—compelling
disclosure of a recordkeeping policy, mandating FRA compliance, or triggering an Attorney
General referral—are tethered to a concrete prospective injury. And to the extent Plaintiff rests its
claims on physical records already destroyed on March 11, 2025, those claims fail because the
irreversible destruction of classified records forecloses any meaningful redress.
Because Plaintiff lacks standing to pursue the injunctive remedies it seeks, and cannot
maintain an action for declaratory relief alone, Counts One through Three should be dismissed in
their entirety. See California v. Texas, 593 U.S. 659, 673 (2021) (noting that declaratory relief
“cannot alone supply jurisdiction otherwise absent”); see Citizens for Resp. & Ethics in
Washington v. Trump, 302 F. Supp. 3d 127, 135 (D.D.C. 2018).
IV. CONCLUSION
For the foregoing reasons, the court will GRANT without prejudice Defendants’ Partial
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Motion to Dismiss. ECF No. 16. A separate order will accompany this Memorandum Opinion.
Date: March 3, 2026
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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