United States District Court for the District of Columbia
March 28, 2004.
AMERICAN HISTORICAL ASSOCIATION, et al, Plaintiffs,
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, et al, Defendants
The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
The Court is presented with a dispute over the relationship between an
executive order issued by the President of the United States and a
statute passed by Congress. In particular, the Court is asked to
determine whether the President has overstepped the limitations on his
power by issuing an executive order that alters the terms of a statute.
Plaintiffs, research organizations, individual researchers, and a public
interest organization, all seek access to former President Ronald
Reagan's presidential records, which they claim are being improperly
withheld by the executive branch. At issue is Executive Order No. 13,233,
signed by President George W. Bush on November 1, 2001, which purports to
"further implement" the Presidential Records Act of 1978,
44 U.S.C. § 2201-2207 (1991). Plaintiffs would have this Court find
Executive Order No. 13,233 an impermissible exercise of the executive
power, necessarily enjoining its implementation. Plaintiffs originally
requested injunctive relief requiring Defendants National
Archives and Records Administration and the Archivist to produce
records that had not been released to the public under the terms of
Executive Order. However, at this stage in the litigation, the only
documents that remain unavailable are 74 pages over which constitutional
privilege has been asserted.
Pending before the Court are Defendants' motion to dismiss all counts
of Plaintiffs' complaint, and Plaintiffs' motion for summary judgment on
one count of their complaint. In addition to the briefing filed by the
parties to this matter, the Court granted the Association of American
Publishers, and several other interested groups, leave to collectively
file an amicus brief. These documents, as well as several notices and
responses that the parties filed during the ongoing privilege review,
have been considered by the Court.
After an examination of the parties' motions, the briefs, and the
relevant law, the Court determines that Plaintiffs' suit is not
justiciable at this juncture. Plaintiffs have not shown that they have
standing to bring this suit, and the Court also finds that their claim is
II. Factual and Statutory Background
A. Historical Context
Prior to 1974, the wide array of materials generated during a
presidency were generally considered the property of that President when
his term ended, although those ownership rights might be limited somewhat
by the public interest in them as records of government activity. See
Nixon v. Administrator of General Services, 433 U.S. 425, 431
(1977); Nixon v. United States, 978 F.2d 1269, 1270 (D.C. Cir.
1992). In the midst of the Watergate investigation, however, Congress
passed the Presidential Recordings and Materials Act ("PRMA"), which
transferred control of President Richard Nixon's presidential records to
the Administrator of General
Services (later changed to the "Archivist"), and directed the
Administrator to develop regulations providing for public access to the
materials. See 44 U.S.C. § 2111 note. The PRMA was upheld as
constitutional in Nixon v. Administrator of General Services,
433 U.S. 425 (1977). Although the Court in Nixon v. Administrator of
General Services held that there is a legal foundation for a former
president's claim to executive privilege surviving his tenure in office,
the Court also held that the former president's interest in keeping the
records private erodes over time. Id. at 449, 451.
B. Presidential Records Act
Several years later, Congress passed the Presidential Records Act of
1978 ("PRA"), which addressed this issue of public access to presidential
papers in a broader context. In keeping with the view that presidential
records are not personal property, the Act states that "[t]he United
States shall reserve and retain complete ownership, possession, and
control of Presidential records; and such records shall be administered
in accordance with this chapter." 44 U.S.C. § 2202. The Act confers on the
Archivist of the United States "responsibility for the custody, control,
and preservation of, and access to, the Presidential records" generated
during the outgoing President's term or terms. 44 U.S.C. § 2203(f)(1). It
further directs that the "Archivist shall have an affirmative duty to
make such records available to the public as rapidly and completely as
possible consistent with the provisions of this Act." Id. In
conjunction with this mandate, the PRA makes several provisions for the
restriction of access to Presidential records.*fn1
First, prior to leaving office, a president can restrict access to
certain categories of information for up to 12 years. Id. §
2204(a)(1)-(6).*fn2 In relevant part, the Act allows a president
to restrict access to "confidential communications requesting or
submitting advice, between the President and his advisers, or between
such advisors" for 12 years. Id. § 2204(a)(5).
Records not restricted for the 12-year period, shall be made available
by the Archivist to the public after five years, generally subject to the
conditions of the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552.*fn3 44 U.S.C. § 2204(b)(2)(A), 2204(c)(1). Each of these FOIA
exemptions may apply to presidential records indefinitely.*fn4
The one exception to this direction is that presidential records cannot
be withheld from members of the public based on FOIA exemption (b)(5).
44 U.S.C. § 2204(c)(1). In the ordinary FOIA context, the public is not
entitled to materials that fall under exemption (b)(5), "inter-agency or
intra-agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency."
5 U.S.C. § 552(b)(5). In the context of presidential records, however, the
(b)(5) exemption is inapplicable, so such materials are considered
records belonging to the National Archives, and must be "granted on
nondiscriminatory terms" to members of the public.
44 U.S.C. § 2204(c)(1).
Third, the PRA states that "[n]othing in this Act shall be
construed to confirm, limit, or expand any constitutionally-based
privilege which may be available to an incumbent or former President."
Id. § 2204(c)(2).
Under the PRA, the Archivist must notify the former president "when the
disclosure of particular documents may adversely affect any rights and
privileges which the former President may have." Id. §
2206(3). The National Archives and Records Administration ("NARA") has
implemented this requirement by promulgating a regulation providing that
whenever the Archivist intends to make public any presidential record, he
must provide 30 days' notice to the former president to allow him, or his
designated representative, to assert any rights or privileges that would
foreclose access to the materials. 36 C.F.R. § 1270.46(a), (b), (d).
If the former president raises such a right or privilege intending to
preclude disclosure, "and the Archivist nevertheless determines that the
record in question should be disclosed in whole or in part, the Archivist
shall notify the former President or his representative," and "shall not
disclose [the records] for at least 30 calendar days . . ." Id.
§ 1270.46(c), (d). Copies of either notice to a former president of
impending disclosure must be provided to the incumbent president as well.
Id. § 1270.46(e).
C. Executive Order 12,667 ("Reagan Order")
President Ronald Reagan signed Executive Order 12,667 ("Reagan Order")
on January 18, 1989, "in order to establish policies and procedures
governing the assertion of Executive privilege by incumbent and former
Presidents in connection with the release of Presidential records" by
NARA under the PRA. Reagan Order, 54 Fed. Reg. 3403; see also
44 C.F.R. § 2204
note. The Reagan Order specified three situations in which
presidential records could be withheld: national security, law
enforcement, and the executive deliberative process privilege, and gave
the incumbent president the authority to assert privilege over the
records of a former president. Id. §§ 1(g), 3.
When the Archivist notified an incumbent and former president of his
intent to open records, the Reagan Order required him to "identify any
specific materials, the disclosure of which he believes may raise a
substantial question of Executive privilege." Id. § 2(a).
After 30 days, the Archivist would be free to disclose the records,
"unless during that time period the Archivist [received] a claim of
Executive privilege by the incumbent or former President or the Archivist
has been instructed by the incumbent President or his designee to extend
the time period." Id. § 2(b). The Reagan Order provided that
both the incumbent and former presidents could assert executive
privilege, but that the Archivist would only be bound to accept the
privilege claim of an incumbent president. Id. §§ 3-4. The
Reagan Order required the Archivist to abide by an incumbent president or
his designee's direction as to whether to accept or deny a former
president's claim of privilege, unless ordered otherwise by a court.
Id. § 4.
The Reagan Order was revoked by Executive Order 13,233, discussed
D. Executive Order 13,233 ("Bush Order")
1. Factual Backdrop for the Bush Order
The records generated during President Reagan's terms in office were
the first to be subject to the provisions of the PRA. Before leaving
office, President Reagan exercised his right under the PRA to restrict
appropriate materials for the maximum 12 year period, including
"confidential communications" with his advisors. Compl. ¶ 28.
President George W. Bush took office in January 2001, the same time that
President Reagan's 12 year restrictions on certain records expired, and
in February 2001, NARA notified President Bush and former President
Reagan that it intended to release these materials because the period of
their restriction had expired. Compl. ¶¶ 27, 33. The notice did not
state that any records "raise a substantial question of Executive
privilege" within the meaning of § 2(a) of the Reagan Order.
In response to NARA's notice, White House Counsel Alberto R. Gonzales
twice instructed the Archivist to extend the time available for President
Bush to review the soon-to-be-released presidential records, for a total
extension of 180 days. Compl. ¶ 36; PL Stmt. of Undisputed Facts ("PL
Stmt.") Ex. 2, 3. At the end of the 180 days, White House Counsel
Gonzales instructed the Archivist to extend the time for White House
review for "a few additional weeks," stating that the extended review
period "has been necessary for this Administration to review the many
constitutional and legal questions raised by potential release of
sensitive and confidential Presidential records, and to decide upon the
proper legal framework and process to employ in reviewing such records on
an ongoing basis." PL Stmt. Ex. 4; Def. Resp. to PL Stmt. ¶ 1.
On November 1, 2001, President Bush issued Executive Order 13,233,
entitled "Further Implementation of the Presidential Records Act." Bush
Order, 66 Fed. Reg. 56025; see also 44 U.S.C. § 2204 (Supp.
2003). The stated purpose of the Bush Order is "to establish policies and
procedures implementing [the Presidential Records Act] with respect to
constitutionally based privileges . . ." Id. preamble. The Order
"is not intended to indicate whether and under what
circumstances a former President should assert or waive any
privilege. The order is intended to establish procedures for former and
incumbent Presidents to make privilege determinations." Id.
2. The Bush Order's Stated Constitutional and Legal
Section 2 of the Bush Order details the order's constitutional and
legal background. Id. § 2. After the 12-year period during
which a former president's records can be shielded from public view, the
PRA directs the Archivist to follow the FOIA guidelines when releasing
presidential records. Id. § 2(a). While the PRA explicitly
states that FOIA exemption (b)(5) is not a permissible basis on which the
Archivist may withhold documents from the public after the 12-year period
has elapsed, see 44 U.S.C. § 2204(c)(1), the Bush Order
states that 44 U.S.C. § 2204(c)(2) "recognizes that the former
President or the incumbent President may assert any constitutionally
based privileges, including those ordinarily encompassed within [FOIA
exemption (b)(5)]." Bush Order § 2(a).
The Bush Order includes a detailed description of what purportedly
constitutes a president's constitutionally-based privilege. The Bush
Order removed the privilege for law enforcement records, and added
several categories instead:
The President's constitutionally based privileges
subsume privileges for records that reflect:
military, diplomatic, or national security secrets
(the state secrets privilege); communications of
the President or his advisors (the presidential
communications privilege); legal advice or legal
work (the attorney-client or attorney work product
privileges); and the deliberative processes of the
President or his advisors (the deliberative
Id. In addition, the Order states that the executive exercise
of a constitutionally-based privilege does not expire simply due to the
passage of time, relying on Nixon v. Administrator, which held
that "constitutionally based privileges available to a President
`survive the individual President's tenure.'" Id. § 2(b)
(quoting Nixon v. Administrator, 433 U.S. at 449).
The Order also maintains that "a former President, although no longer a
Government official, may assert constitutionally based privileges with
respect to [his records], and [the Supreme Court] expressly rejected the
argument that `only an incumbent President can assert the privilege of
the Presidency.'" Id. (quoting Nixon v. Administrator,
433 U.S. at 448). Finally, the Bush Order sets out a standard which those
requesting presidential documents must meet. As opposed to the FOIA
standard, which requires no showing of need for the information sought,
the Bush Order requires a "`demonstrated, specific need' for particular
records, a standard that turns on the nature of the proceedings and the
importance of the information to that proceeding." Id. §
2(c), quoting United States v. Nixon, 418 U.S. 683, 713 (1974).
3. Procedures Under the Bush Order
The Bush Order sets out several procedures for the Archivist when
administering presidential records. When the Archivist receives a request
for unreleased presidential records, the Bush Order requires the
Archivist to notify both the former president and incumbent president,
and provides them with the records sought. Bush Order § 3(a). The
Archivist may not release the records while the former president reviews
them. Id. § 3(b). The incumbent president or his designee
has the concurrent ability to determine whether to invoke executive
privilege with respect to the records. Id. § 3(d). If the
former president requests that the records be withheld as privileged, and
the incumbent president concurs in the former president's decision, the
incumbent president informs the former president and the Archivist of his
agreement. Id. § 3(d)(1)(I).
The Bush Order also permits former presidents to raise the executive
privilege, even in
the face of disagreement from the incumbent president, and permits
the incumbent to raise the privilege with respect to a former president's
papers, even if the former president does not raise the privilege
himself. Id. §§ 3(d)(1)(ii), 3(d)(2)(ii). The Bush Order
indicates that the incumbent president will concur in the former
president's privilege decision "[a]bsent compelling circumstances."
Id. § 4. The Archivist may not disclose the records until
the incumbent president informs the Archivist that both he and the former
president agree to permit access, "or until ordered to do so by a final
and nonappealable court order." Id. § 3(d)(1)(I); see
also id. §§ 3(d)(1)(ii), 3(d)(2)(I), 3(d)(2)(ii).
Finally, the Bush Order maintains that the records of a former vice
president are to be administered with the same procedures as those of a
former president, and that both the PRA and the Bush Order apply to vice
presidential records in the same manner as they would apply to
presidential records. Id. § 11.
E. Records in Dispute
When Plaintiffs originally brought this suit, the question of which
records, if any, were being withheld was a subject of some dispute. The
Court's unusually heavy docket during the pendency of this litigation
accounts for the delay in resolving the issues presented, and in the
intervening time, the Reagan presidential records have gradually been
released to the public. Originally, some 68,000 pages of former President
Reagan's records appeared to be under review by former President Reagan
and President Bush. See Compl. ¶¶ 53-57 Over the course of
this litigation, various records have been released while new records
have come to light. While former President Reagan had initially indicated
he would assert privilege over certain documents and a segment of
videotape, Defendants have informed the Court that former President
has asserted privilege only over 11 documents, totaling 74 pages of
presidential records, and that President Bush has "determined to assert
constitutionally based privilege in concurrence with former President
Reagan." Def. Further Notice with Respect to Processing of Records
(Def. Further Notice) at 1.
While these 74 pages were not encompassed in the approximately 68,000
pages of records specifically disputed in Plaintiffs' complaint,
see Def. Notice with Respect to Processing of Records (Def.
Notice) at 2, Plaintiffs' complaint was framed to generally address any
records of the Reagan presidency that were being withheld pending a
privilege review, whether or not Plaintiffs were aware of them at the
time of filing. Compl. ¶ 1 ("[Plaintiffs bring this action] to compel
the release of presidential materials of former President Ronald Reagan
that are in the custody of NARA and are being withheld in violation of
the PRA."); see also PL Opp. to Def. Mot. to Dismiss ("Pl.
Opp.") at 6 n.2 ("[T]hese 68,000 pages are not the only Reagan
records [in dispute]. . . . Since only a little more than 10% of the
Reagan records have so far been processed for opening to the public,
there are very likely [many] more pages of documents . . . that will now
be subject to the Bush Order. . . ."). Plaintiffs have not indicated to
the Court that any other Reagan presidential records remain unavailable
to the public.
III. Issues Presented to the Court
Although Plaintiffs raise a number of issues in their complaint,*fn5
they seek summary
judgment on a narrower question:
[P]laintiffs seek summary judgment declaring that
the Bush order is unlawful and
may not be implemented by the Archivist and
NARA to the extent it purports to give former
Presidents, Vice Presidents, and their
representatives unilateral authority to direct the
Archivist to withhold presidential and vice
presidential records from the public. Plaintiffs
further seek a permanent injunction ordering the
Archivist and NARA not to implement the Bush
order, and to make Reagan and Bush presidential
and vice presidential records available to the
public promptly and without regard to the Bush
PL Mot. for Summ. J. ("PL Mot") at 2-3.*fn6
Defendants filed their motion to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), stating that dismissal is
appropriate because Plaintiffs' claims are not justiciable, and even
assuming their justiciability, that Plaintiffs have failed to state a
claim upon which relief may be granted. Def. Mot. to Dismiss ("Def.
Mot.") at 14. Defendants raise justiciability challenges to Plaintiff's
suit on mootness, standing, and ripeness grounds. See Def. Mot.
to Dismiss ("Def. Mot.") at 14-25.
The Court must first consider whether Plaintiffs' claims are
justiciable. Because the Court finds that Plaintiffs' claims are not
justiciable, the Court will not address the merits of the
parties' dispositive motions.
IV. Legal Standard
In reviewing motions to dismiss for lack of jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1), "the allegations of the
complaint should be construed favorably to the pleader." Walker v.
Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90
(1974)). "While the complaint is to be construed liberally, the Court
need not accept factual inferences drawn by plaintiff if those inferences
are not supported by facts alleged in the complaint, nor must the Court
accept plaintiffs legal conclusions." Primax Recoveries, Inc. v.
Lee, 260 F. Supp.2d 43, 47 (D.D.C. 2003) (citing National
Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C.
Cir. 1996)); see also American Farm Bureau v. E.P.A.,
121 F. Supp.2d 84, 90 (D.D.C. 2000) (same). In the 12(b)(1) context, the
plaintiff bears the burden of proving jurisdiction. Vanover v
Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999), aff'd 38 Fed.
Appx. 4, 2002 WL 1359630 (D.C. Cir. Apr. 17, 2002). In its consideration
of a motion under 12(b)(1), a district court may look beyond the
pleadings to inquire into facts pertinent to its jurisdiction. See
Land v. Dollar, 330 U.S. 731, 735 n.4 (1947).
V. Discussion of Justiciability
Before the Court can begin to address the substantive matters raised in
this case, it must make a determination as to the Justiciability of
Plaintiffs' claims. Indeed, the parties have devoted much of their
briefing to this threshold question, while at the same time the materials
Plaintiffs seek have been gradually released. Swaths of the parties'
Justiciability arguments have been rendered obsolete by the former and
incumbent presidents' decision to assert executive
privilege over 74 pages of records. See Def. Mot. at 16,
19-20, 21-22 (statements made before the decision to assert executive
privilege over 74 pages, in which Defendants argue that Plaintiffs'
claims are not properly reviewable because they depend on the future
assertion of executive privilege).*fn7
The Court is only empowered to consider cases and controversies, and
"[i]n an attempt to give meaning to Article Ill's
case-or-controversy requirement, the courts have developed a series of
principles termed `justiciability doctrines,' among which are standing,
ripeness, mootness, and the political question doctrine." National
Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.
Cir. 1996) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)).
The first three, standing, ripeness, and mootness, are implicated in this
case. Defendants raise each of them in their motion to dismiss.
See Def. Mot. to Dismiss ("Def. Mot.") at 14-24. The Court will
address standing and ripeness in turn. The Court will not address
mootness because it finds that Plaintiffs' claims are not justiciable
under the standing and ripeness analyses.
Defendants argue that Plaintiffs do not have standing to challenge the
Bush Order. Def. Mot. at 15-21. To establish standing, Plaintiffs must
demonstrate that they have suffered an injury in fact that is concrete
and particularized, and actual or imminent, not conjectural or
hypothetical. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (internal quotations
omitted). Plaintiffs must also show that the injury is fairly
traceable to the challenged conduct, in the form of a causal connection
between the injury and the conduct. Id. Finally, Plaintiffs must
show that the injury is likely to be redressable by the relief sought.
Id. at 561. The Court finds that Plaintiff's cannot show
redressable injury in fact, and as such will not consider the causation
prong of the standing analysis.
1. Injury in Fact
Defendants assume for the purposes of their motion to dismiss that
Plaintiffs were injured by the delay involved in the privilege review
undertaken pursuant to § 3(c) of the Bush Order, after the 12-year
restriction on the Reagan presidential records expired. Def. Mot. at
15.*fn8 Plaintiffs argue that they have been injured, not merely by
delay, but also by what they consider unlawful denials of access after
the expiration of the 12-year period, and imminent (at the time of their
filing) denials that "will occur as the terms of the Bush order giving
former Presidents, Vice Presidents and their `representatives' veto power
over public access are applied." P1. Opp. at 6.
By "continuing unlawful denial of access that has already
occurred," Plaintiffs refer to NARA's unwillingness to provide access to
records as soon as they were authorized for release, see P1.
Opp. Attach. 1 (Decl. of Bruce Craig) ¶ 3, as well as NARA's
unwillingness to release documents while they were the subject of a
privilege review. See PL Mot. Attach. 6-10 (letters between
Prof. Hugh Davis Graham, Public Citizen Litigation Group, the Ronald
and NARA, and a letter from the Ronald Reagan Library to Mr.
Blanton of the National Security Archive) (emphasis in original).
The Supreme Court stated in FEC v. Akins, 524 U.S. 11 (1989),
that an "inability to obtain information . . . that, on respondents' view
of the law, the statute requires [be] made public" constitutes injury in
fact for standing purposes. Id. at 21. In Akins, the
plaintiffs challenged an organization's refusal to release donors' names,
as the plaintiffs argued was required by the Federal Election Campaign
Act. In the instant case, Plaintiffs have ultimately been granted access
to all the Reagan presidential records, with the exception of 74 pages
over which executive privilege has lawfully been asserted. Accordingly,
Plaintiffs' inability to access materials amounts to something less than
a denial of access.
There is no dispute, though, that when Plaintiffs requested the Reagan
presidential records at the expiration of the 12-year restriction
permitted by the PRA, they were unable to obtain the materials to which
Plaintiffs believe the PRA entitled them at the time. Defendants assume
for purposes of their motion that this delay constitutes an injury in
fact. The case law in this Circuit supports this assumption. See Byrd
v. EPA, 174 F.3d 239, 243 (D.C. Cir. 1999) (finding that denial of
"timely access" constitutes "informational injury," thereby precluding
any "serious challenge" to the injury element of the standing analysis);
see also Payne Enters. v. United States, 837 F.2d 486, 491 (D.C.
Cir. 1988) ("Courts have long recognized that there `may very well be
circumstances in which prolonged delay in making information
available . . . require[s] judicial intervention.'") (quoting
Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978). It is
clear, then, that Plaintiffs' past delays in access to presidential
records satisfy the
injury in fact requirement of the standing analysis
Plaintiffs also allege future injury. PL Opp. at 6. Plaintiffs are
engaged on an ongoing basis in the study of presidential records and the
internal workings of the government, and will seek access to future
collections of presidential records. The Court understands that
Plaintiffs have a professional interest in presidential records and will
most likely continue to seek such records in the future. Plaintiffs face
substantially similar delays in the future should the terms of the Bush
Order continue to be applied. The American Historical Association's
members and the Organization of American Historians' members "regularly
request and make use of presidential and vice presidential records held
by NARA." Compl. ¶¶ 3, 7. Professor Stanley Kutler "makes extensive
use of the records of former presidents and vice presidents at
presidential libraries and other NARA facilities." Id. ¶ 5.
There is therefore a significant likelihood that Plaintiffs will again
seek access to presidential records, and face indeterminate delays in
accessing them. However, the Court cannot find that this future injury is
sufficiently imminent, and not conjectural and hypothetical. At this
stage Plaintiffs have no outstanding requests for presidential records,
because there are no presidential records currently subject to the Bush
Order, other than the 74 pages over which privilege has been asserted.
Twelve years will soon have passed since the end of former President
George H. W. Bush's presidency, at which point it is possible that these
records will be subject again to the terms of the Bush Order. This Court,
however, is not prescient, and cannot know at this point in what way the
facts will reveal themselves when Plaintiffs themselves, or indeed other
interested parties, seek the records of a different president. Both the
incumbent presidents may make different decisions about any records
whose period of restriction under the PRA has ended. Although it would be
a coveted talent, the Court cannot predict who the incumbent president
will be in 2005, or what effect, if any the election of 2004 will have on
any future application of the Bush Order's provisions.
The Court comes to the inevitable conclusion that, while Plaintiffs
have demonstrated past injury in fact, but that they cannot, at this
stage, properly demonstrate future injury in fact that is imminent and
not conjectural and hypothetical.
Even though Plaintiffs have demonstrated sufficient injury, they lack
standing under the redressability prong of the standing analysis.
Redressability is satisfied if it is "likely, as opposed to merely
speculative that the injury will be redressed by a favorable decision."
Lujan, 504 U.S. at 561 (internal quotations omitted). At this
stage of the litigation, Plaintiffs request declaratory relief finding
the Bush Order unlawful, and injunctive relief proscribing the Order's
implementation. The Court finds that Plaintiffs' injury in fact is not
redressable by the relief Plaintiffs seek.
It is quite obviously impossible to undo the delays that Plaintiffs
experienced in gaining access to the Reagan presidential records, and as
explained in Section V(A)(1), supra, any future injury
Plaintiffs might suffer as a result of the Bush Order is speculative at
this point. Even if the Court were to find in Plaintiffs' favor on the
merits of their claim and enjoin the application of the Bush Order,
Plaintiffs' past delays would not be redressed. Plaintiffs' inability to
access materials while former President Reagan's records were subject to
privilege review cannot be redressed by a finding that the Bush Order's
provisions may not be applied in the future.
Accordingly, the Court finds that Plaintiffs do not have standing to
bring this suit. Although a finding of a lack of standing alone renders
this case nonjusticiable, the Court will address ripeness as an
alternative bases for nonjusticiability.
Defendants challenge the justiciability of Plaintiffs' suit by alleging
that the suit is not ripe for review on either constitutional or
prudential grounds. See Def. Mot. at 21-24. Ripeness doctrine
counsels that courts refrain from deciding cases where injury is
speculative, and may never occur, because such cases are premature for
review. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-149
(1967) (explaining that the rationale underlying ripeness "is to prevent
the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and
also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties."). The Court has already
explained that only a future injury would be redressable by the relief
Plaintiffs seek. It is clear that any future injury is at this point
purely speculative, and consequently the Court cannot find that
Plaintiffs have a ripe controversy.
Ripeness, like standing, requires the constitutional minimum of
impending injury in fact, which Plaintiffs have not established.
See Section V(A)(1), supra. Although Plaintiffs have
not shown constitutional ripeness, the Court will consider the question
of prudential ripeness in the interest of thoroughness. Prudential
ripeness requires the Court to balance "the fitness of the issues for
judicial decision and the hardship to the parties of withholding court
consideration." Abbott Labs., 387 U.S. at 149.
Defendants contend that Plaintiffs' claims are "academic," and that
Plaintiffs might suffer is outweighed by the institutional
interests in postponing review," Def. Mot. at 23. In considering the
hardship prong of prudential ripeness, the Court finds that it must agree
with Defendants. The Court is mindful of the fact that this suit has been
lengthy and labor-intensive for the parties, who have fully briefed each
of their dispositive motions and filed ongoing updates with the Court as
to the release of some presidential records and the assertion of
executive privilege over others. However, the Court cannot ignore the
requirements of Article III of the Constitution, which require a live
controversy at each stage of litigation. Accordingly, any hardship to the
parties of postponing review does not overcome the fact that review of
Plaintiffs' claims is inappropriate at this time.
The second prong of prudential ripeness, the fitness of these issues
for judicial consideration, is similarly not satisfied. At this point in
the litigation, the Court is presented with an abstract disagreement in
need of factual development. The Archivist and NARA will continue to
apply the Bush Order to presidential records, but the only redressable
injury Plaintiffs might have is speculative. Defendants cite Abbot
Laboratories for the proposition that "prudential ripeness protects
other Branches from judicial interference until the effects of their
decisions are `felt in a concrete way by the challenging parties.'" Def.
Mot. at 23, quoting Abbot Labs., 387 U.S. at 148-148. Although
the Bush Order may have had a concrete impact on Plaintiffs, it is not
clear that it will inevitably impact them in the same way in the future.
Although it may be likely that Plaintiffs will again encounter delays
in access to presidential records if the terms of the Bush Order are
applied in the future, such injury is at this point hypothetical.
Accordingly, the Court is compelled to find that Plaintiffs claims are
The Court is bound by the justiciability doctrines to only consider the
merits of a live controversy. Plaintiffs' past injury is simply not
redressable by the relief they seek, and their only possible redressable
injury is at this stage simply too hypothetical. It necessarily follows
that Plaintiffs claim is not ripe for review, and cannot be ripe until
Plaintiffs have some actual or imminent redressable injury. In keeping
with the Article III prohibition on advisory opinions, the Court must
find this suit nonjusticiable, and consequently the Court has no
jurisdiction over this case at this time.
An appropriate Order accompanies this Memorandum Opinion.