The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiff Judicial Watch, Inc. brings this action against defendant National Archives and Records Administration ("NARA") under the Administrative Procedure Act ("APA"), 5 U.S.C. Â§ 701, et seq. Plaintiff asks the Court to declare audiotapes created by former President William Jefferson Clinton and historian Taylor Branch during the Clinton administration to be "Presidential records" under the Presidential Records Act ("PRA"), 44 U.S.C. Â§ 2203(f), and to order defendant "to assume custody and control" of them and deposit them in the Clinton Presidential Library. Plaintiff contends that defendant has acted arbitrarily and capriciously under the APA by failing to exercise control over the audiotapes and by not making them available in response to a Freedom of Information Act ("FOIA") request. Defendant has moved to dismiss [Dkt. # 6] under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted.
The Court will grant the motion to dismiss pursuant to Rule 12(b)(1) because plaintiff's claim is not redressable. NARA does not have the authority to designate materials as "Presidential records," NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them. In other words, there has been no showing that a remedy would be available to redress plaintiff's alleged injury even if the Court agreed with plaintiff's characterization of the materials. Since plaintiff is completely unable to identify anything the Court could order the agency to do that the agency has any power, much less, a mandatory duty, to do, the case must be dismissed.
According to plaintiff, President Clinton enlisted historian Taylor Branch to assist him in creating "an oral history of his eight years in office." Compl. Â¶ 8. In 2009, Branch published a book entitled, "The Clinton Tapes: Wrestling History with the President," based upon extensive conversations with President Clinton during his tenure in the White House and the events Branch observed when he was in the President's office. See Joe Klein, "Book Review: Bill Session," N.Y. Times (Sept. 25, 2009), http://www.nytimes.com/2009/09/27/books/review/Klein-t.html. In 2010, plaintiff filed this action. [Dkt. #1]. Plaintiff avers that from January 20, 1993 to January 20, 2001, Branch recorded seventy-nine audiotapes that "preserved not only President Clinton's thoughts and commentary on contemporaneous events and issues he was facing as president, but, in some instances, recorded actual events such as presidential telephone conversations." Compl. Â¶ 9.
Based on Branch's book, plaintiff contends that the recordings captured a verbatim record of President Clinton being President -- performing his duties by engaging in conversations while Branch happened to be there with the tape recorder running -- as opposed to simply reflecting about the ongoing Presidency with the writer.*fn1 The gravamen of the complaint, then, is that the tapes should have been included among the Presidential records transferred to the Archivist of the United States at the end of the Clinton presidency, but President Clinton retained them in his personal possession when he left office, and defendant is unable to produce them now. Compl. Â¶ 16. The parties agree that the audiotapes are not currently in the government's possession. Mot. to Dismiss Unedited Hr'g Tr. ("Tr.") at 5:14--18, 28:19--29:2 (Oct. 14, 2011). And the former President is not named as a party in this action.
B. The Presidential Records Act of 1978
Enacted in the wake of controversy surrounding the disposition of President Richard M. Nixon's Presidential records, the Presidential Records Act of 1978 ("PRA"), 44 U.S.C. Â§Â§ 2201-- 2207 (2006), governs the preservation and disclosure of Presidential records. The PRA defines "Presidential records" as:
[D]ocumentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, 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.
44 U.S.C. Â§ 2201(2). The statute provides that "[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records," id. Â§ 2202, and it directs the President to "take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records," id. Â§ 2203(a).
The PRA distinguishes Presidential records from "personal records," defining personal records as "all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." Id. Â§ 2201(3). The PRA provides that "diaries, journals or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Governmental business" should be treated as personal records. Id. Â§ 2201(3)(A). The PRA requires that all materials produced or received by the President, "to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately." Id. Â§ 2203(b).
The categorization of the records during the Presidency controls what happens next: at the conclusion of the President's term, the Archivist is directed to "assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President." Id. Â§ 2203(f)(1). The Archivist is required to "make such records available to the public as rapidly and completely as possible consistent with the provisions of [the PRA]." Id. The statute assigns the Archivist no role with respect to personal records once the Presidency concludes.
As another court in this district has observed, "[t]he PRA incorporates an assumption made by Congress (in 1978) that subsequent Presidents and Vice Presidents would comply with the Act in good faith, and therefore Congress limited the scope of judicial review and provided little oversight authority for the President and Vice President's document preservation decisions." CREW v. Cheney, 593 F. Supp. 2d 194, 198 (D.D.C. 2009). Indeed, the PRA permits the President to dispose of any Presidential records that "no longer have administrative, historical, informational, or evidentiary value" after notifying the Archivist of the United States and designated members of Congress of the proposed disposal. 44 U.S.C. Â§ 2203(c),(d).
The PRA provides the Archivist with authority to invoke the same enforcement mechanism found in another statute, the Federal Records Act ("FRA"). The PRA provides:
When the Archivist considers it to be in the public interest, he may exercise, with respect to papers, documents, or other historical materials deposited under this section, or otherwise, in a Presidential archival depository, all the functions and responsibilities otherwise vested in him pertaining to Federal records or other documentary materials in his custody or under his control.
44 U.S.C. Â§ 2112(c). In addition, the FRA grants the Archivist authority to: notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency that shall come to his attention, and assist the head of the agency in initiating action through the Attorney General for the recovery of records wrongfully removed and for other redress provided by law.
Plaintiff Judicial Watch, Inc. is a non-profit organization that "seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law." Compl. Â¶ 3. In order to fulfill those goals, plaintiff "regularly requests access to the public records of federal, state, and local government agencies, entities, and offices, and disseminates its findings to the public." Id. Defendant NARA is a governmental agency charged with the safekeeping of documents and materials created in the course of business by the United States Federal government that have particular legal or historical value. Id. Â¶ 4; About the National Archives, National Archives, http://www.archives.gov/about (last visited Feb. 28, 2012). Defendant operates and maintains the Clinton Presidential Library and Museum ("the Clinton Library"), which contains the Presidential records of President Clinton. Compl. Â¶ 4.
1. Plaintiff's FOIA Request
On October 7, 2009, plaintiff sent a FOIA request to the Clinton Library seeking access to the seventy-nine tapes recorded by Branch. Compl. Â¶ 12; Ex. 1 to Def.'s Mot. to Dismiss. Plaintiff received a letter in response from Dana Simmons, Supervisory Archivist for the Clinton Library, dated October 9, 2009, stating that the requested tapes "are not [P]residential records and therefore are not subject to request under the PRA and FOIA." Compl. Â¶ 13 (internal quotations omitted); Ex. 2 to Def.'s Mot. to Dismiss. The letter went on to state that "the tapes are personal records, as defined in section 2201(3) of the PRA." Ex. 2 to Def.'s Mot. to Dismiss.
On November 2, 2009, plaintiff appealed the determination that the tapes were not Presidential records on the grounds that the tapes "clearly relate to or have effect upon the official duties of President Clinton." Ex 3. to Def.'s Mot. to Dismiss; Compl. Â¶ 14. NARA denied the appeal on March 16, 2010. Ex. 4 to Def.'s Mot. to Dismiss. In a letter to plaintiff from Adrienne C. Thomas, Deputy Archivist of the United States, NARA provided the following explanation:
In response to your appeal, first, and most importantly, the Taylor Branch audio tapes are not and have never been physically located at the Clinton Library or at any other NARA facility, and thus your FOIA request is premised on a faulty assumption that these materials are somehow within the present custody of the National Archives -- which they are not.
Id. The letter went on to say:
To the extent, however, that your FOIA appeal can be read as requesting that the National Archives should make a further determination that the materials in question ought to be considered "presidential records" within the meaning of the PRA, we decline to do so. In making a decision on this matter I have to consider the nature of the audio tapes, if they were created with the intent of their use as government materials, and whether or not they were circulated within the Administration or relied on as policy documents. On the facts made available to me, I do not believe the materials in question fall within the ambit of the PRA.
For these reasons, I am of the opinion that the audio tapes created by Taylor Branch are personal records of President Clinton as defined by the PRA.
2. The Lawsuit Before ...