AMY BERMAN JACKSON, 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. § 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. § 2203(f), and to order defendant "to assume custody and control" of them and deposit them in the Clinton Presidential Library. Plaintiff
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. ¶ 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. ¶ 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.
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. §§ 2201-2207 (2006), governs the preservation and disclosure of Presidential records. The PRA defines "Presidential records" as:
44 U.S.C. § 2201(2). The statute provides that "[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records," id. § 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. § 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. § 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. § 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. § 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. § 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."
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:
44 U.S.C. § 2112(c). In addition, the FRA grants the Archivist authority to:
44 U.S.C. § 2905(a).
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. ¶ 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. ¶ 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. ¶ 4.
On October 7, 2009, plaintiff sent a FOIA request to the Clinton Library seeking access to the seventy-nine tapes recorded by Branch. Compl. ¶ 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. ¶ 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. ¶ 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:
Id. The letter went on to say:
Id.
Plaintiff filed this action on October 28, 2010. The complaint alleges one count under the APA, 5 U.S.C. § 701, et seq. Plaintiff avers that defendant took final agency action under the APA on March 16, 2010, when it determined that the audiotapes were not Presidential records, and that the determination was "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the PRA." Compl. ¶¶ 19-20. Plaintiff alleges that it has been irreparably harmed by the decision that the tapes were not Presidential records because that classification "prevents [p]laintiff from gaining access to the audiotapes through FOIA." Id. ¶ 21.
In its prayer for relief, the complaint asks the Court to (1) declare defendant's action to be arbitrary, capricious, an abuse of discretion, and in violation of the PRA; (2) declare the audiotapes to be Presidential records under the PRA; (3) order defendant to "assume custody and control" of the audiotapes; (4) order defendant to deposit the audiotapes at the Clinton Library; (5) order defendant to process the records pursuant to FOIA; and (6) grant plaintiff's attorney's fees and litigation costs as well as any other appropriate relief. Id. at 5-6 (prayer for relief).
Defendant moved to dismiss [Dkt. # 6] pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction on the grounds that plaintiff has not alleged a redressable injury and therefore lacks standing. Def.'s Mem. in Support of Mot. to Dismiss at 11-18. Defendant also moved to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, arguing that the PRA precludes judicial review of plaintiff's claim under the APA, and that there has been no final agency action. Id. at 18-37.
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff `the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court with limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). Because "subject-matter jurisdiction is `an Art[icle] III as well as a statutory requirement... no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).
"To survive a [Rule 12(b)(6)] motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' `that the pleader is entitled to relief.'" Id. at 1950, quoting Fed.R.Civ.P. 8(a)(2). A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. at 1949, quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. In ruling upon a motion to dismiss, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citations omitted).
Plaintiff asks the Court to utilize the APA to review a determination it claims the defendant made under the PRA that the audiotapes were personal, and not Presidential, records.
In Armstrong I, a group of researchers and historians filed a lawsuit to prohibit President George H.W. Bush from erasing material stored on the White House computer systems during the last two weeks of the Reagan Administration. Armstrong v. Bush, 721 F.Supp. 343, 347 (D.D.C.1989). The plaintiffs sought: (1) a declaration that the documents at issue, which had been stored on a back-up computer system, were federal and presidential records under the FRA and the PRA; (2) an injunction
The district court determined that under the APA, a court could review the President's compliance with the PRA and the FRA. Id. at 348. ("[T]he APA empowers a private plaintiff to seek judicial review of presidential performance under these statutes."). On appeal, the D.C. Circuit reversed, holding that the PRA precluded judicial review of the "President's recordkeeping practices and decisions" because such judicial review "would upset the intricate statutory scheme Congress carefully drafted to keep in equipoise important competing political and constitutional concerns." Armstrong I, 924 F.2d at 290-91. The court deferred to the legislature's balancing of two competing policy goals: on one hand, the "public ownership of presidential records and ensur[ing] the preservation of presidential records for public access after the termination of a President's term in office;" and on the other hand, "minimiz[ing] outside interference with day-to-day-operations of the President and his closest advisors and [] ensur[ing] executive branch control over presidential records during the President's term in office." Id. at 290. Thus, the PRA requires the President to "maintain records documenting the policies, activities, and decisions of his administration," but "leav[es] the implementation of such a requirement in the President's hands." Id., citing 44 U.S.C. § 2203(a). The court underscored that Congress "presumably relied on the fact that subsequent Presidents would honor their statutory obligations to keep a complete record of their administrations." Id. at 290.
The case was remanded to district court but appealed again, prompting the D.C. Circuit to clarify its earlier ruling. This time, the Court of Appeals explained that although judicial review was limited under the PRA, it was not precluded entirely. Armstrong II, 1 F.3d at 1293 ("The Armstrong I opinion does not stand for the unequivocal proposition that all decisions made pursuant to the PRA are immune from judicial review."). Instead:
Id. at 1290. The court stated that Armstrong I only barred judicial review of "creation, management, and disposal decisions" of the President and not "the initial classification of existing materials." Id. at 1294.
Defendant asserts that the Armstrong cases stand for the proposition that there is no judicial review of a president's compliance with the PRA. Def.'s Mem. in Support of Mot. to Dismiss at 25. Defendant reads Armstrong II as carving out a narrow exception that only permits review of classification guidelines, which are not at issue here. Id. at 23. Plaintiff suggests that Armstrong II's clarification of the first opinion confirmed the availability of judicial review over classification decisions, Pl.'s Opp. at 11-12, and it claims that it seeks permissible review of a decision made by NARA that the audiotapes are not Presidential records, id.
The Court notes at the outset that there is broad language in Armstrong I stating that the PRA accords the President "virtually
It is also true, as plaintiff points out, that the court observed in Armstrong II: "[t]he Armstrong I opinion does not stand for the unequivocal proposition that all decisions made pursuant to the PRA are immune from judicial review." 1 F.3d at 1293. But the actual holding of the case is much more narrow than this language that plaintiff recites. In the Armstrong decisions, the D.C. Circuit did not consider the question of whether an individual decision to exclude private materials from the set of Presidential records transmitted to the Archivist could be subject to review. In fact, Armstrong II was addressing a concern that too many records were being classified as Presidential, not too few: "[T]he courts may review guidelines outlining what is, and what is not, a "presidential record" to ensure that materials that are not subject to the PRA are not treated as presidential records." Id. at 1294 (emphasis added).
The thrust of the Armstrong II opinion was the differentiation between agency records and Presidential records — not, as in this case, between personal records and Presidential records. Id. at 1292. The concern underlying the court's analysis in Armstrong II was that agency records that are subject to broader disclosure requirements under FOIA would be treated as Presidential records and given more limited distribution. Id. at 1292-93 ("Congress sought to provide a clear limitation on just which materials the President could legitimately assert control over and to preserve the pre-existing body of FOIA law governing the disclosure of government agency records.") It was in addressing that point that the D.C. Circuit explained:
Id. at 1293-94 (internal citations omitted). Notably, the D.C. Circuit did not insist: "We did not hold in Armstrong I that the President could designate any material he wishes as personal records." In other words, Armstrong II did not announce that there was any limit to the President's discretion to segregate materials as personal even though it did conclude that the courts could play some role in overseeing the decision to classify agency records as presidential.
Thus, a close reading of the Armstrong II decision suggests that the limited judicial review authorized by the D.C. Circuit left untouched that portion of Armstrong I that gave the President unfettered control over his own documents.
On a practical level, the possibility of judicial review raises a host of questions. If it is available, why is the PRA entirely silent on the subject?
Bearing in mind the Armstrong decisions and all of the considerations raised by the parties, the Court has serious doubts about whether the former President's retention of the audiotapes as personal is a matter that is subject to judicial review. But the Court need not decide this question because whether judicial review is available or not, the relief that plaintiff seeks — that the Archivist assume "custody and control" of the audiotapes — is not available under the PRA.
To satisfy the redressability requirement of jurisdictional standing, a
The complaint asserts a single claim under the APA, 5 U.S.C. § 701, et seq., alleging that plaintiff has been "irreparably harmed" because "[d]efendant's determination [that the audiotapes are not presidential records] prevents [p]laintiff from gaining access to the audiotapes through FOIA." Compl. ¶ 21.
Plaintiff fails to specify which provision of the APA underlies its claim. Compl. ¶¶ 17-22.
Plaintiff's entire APA claim is predicated on the notion that the Archivist of the United States has a statutory duty to make his own classification decision and "to assume custody and control" of all Presidential records. There are a number of flaws with this argument. To begin with, the plain language of section 2203(f) of the PRA does not say what plaintiff claims it does — that the Archivist must assume custody and control of all materials that fall within the definition of Presidential records. Tr. at 29:23-30:2. Rather, it states: "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President." 44 U.S.C. § 2203(f)(1) (emphasis added).
In order to accept plaintiff's theory that section 2203(f)(1) of the PRA creates a mandatory duty for the Archivist to assume custody and control of what he or she considers to be Presidential records regardless of how the President designated the documents, the Court would be required to ignore the rest of the PRA's statutory scheme. This it cannot do. See Chemehuevi Tribe of Indians v. Fed. Power Comm'n, 420 U.S. 395, 403, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975) (stating that a statutory provision must be "read together with the rest of the Act").
Section 2203(a) of the PRA directs the President, not the Archivist, to take:
44 U.S.C. § 2203(a). The only reference in the entire statute to the designation of records as personal versus Presidential also calls for the decision to be made by the executive, and to be made during, and
Plaintiff contends that its factual allegations about the nature and substance of the audiotapes clearly establishes them to be Presidential records, regardless of how they were treated by President Clinton. Pl.'s Opp. at 12-13. The Court is not so sure.
Even if the Court agreed with plaintiff that the PRA authorizes the Archivist to assume control of materials that fall within the definition of Presidential records regardless of how the President classified them, and it agreed with plaintiff's questionable characterization of the materials, the Court still could not order the relief plaintiff seeks because the only enforcement tools provided to the defendant under the PRA are committed to the agency's sole discretion. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding that "an agency's decision not to prosecute or enforce, whether though civil or criminal process, is a decision generally committed to an agency's absolute discretion").
The PRA authorizes NARA to invoke the same enforcement mechanism embodied in the Federal Records Act, which begins with a request to the Attorney General to institute an action for the recovery of missing records. Compare 44 U.S.C. § 2112(c) with 44 U.S.C. § 3106. The statute does not mandate that NARA invoke this enforcement scheme but rather vests complete discretion with the agency to utilize that mechanism. 44 U.S.C. § 2112(c) ("When the Archivist considers it to be in the public interest, he may ...." (emphasis added)). The Archivist has chosen to invoke the mechanism in the past when it deemed such action appropriate. See, e.g., United States v. McElvenny, No. 02-3027, 2003 WL 1741422 (S.D.N.Y. April 1, 2003) (seeking recovery of a map of Cuba annotated by President John F. Kennedy during the Cuban Missile Crisis).
Plaintiff argues that defendant never had an opportunity to consider whether to invoke the enforcement scheme because it "erroneously determined that the audiotapes are not presidential records." Pl.'s Opp. at 8. Not only is this argument circular, but it ignores the Supreme Court's guidance in Heckler v. Chaney that an agency's assessment of whether a violation has occurred is part and parcel of the decision whether to enforce. 470 U.S. at 831, 105 S.Ct. 1649 (stating that "an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.... [including] assess[ing] whether a violation has occurred"). By asking the Court to order defendant to "assume custody and control" of the audiotapes, plaintiff essentially asks the Court to compel defendant to determine that a violation has occurred and enforce the PRA. This is not permissible under the APA. See Massachusetts v. EPA, 549 U.S. 497, 527, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) ("[Agency] discretion is at its height when the agency decides not to bring an enforcement action.").
Because the audiotapes are not physically in the government's possession, defendant submits that it would be required to seize them directly from President Clinton in order to assume custody and control over them. Def.'s Mem. in Support of Mot. to Dismiss at 1, 15-18. Defendant considers this to be an "extraordinary request" that is "unfounded, contrary to the
Plaintiff attempted to minimize the unprecedented nature of its request by imagining scenarios that would result in an amicable recovery of the tapes from the former president:
Tr. at 29:7-18. Plaintiff's indulgence in wishful thinking in order to minimize the ramifications of its own lawsuit underscores the lack of redressability fatal to the case. It is telling that counsel for plaintiff was repeatedly unable to identify anything specific the Court could or should order the Archivist to do under these circumstances:
Id. at 43:18-44:12. Throughout the hearing, plaintiff remained unable to identify any avenue for relief or to specify the terms of the order it was seeking:
Ultimately, plaintiff conceded that even an order deeming the materials to be Presidential records and directing the defendant to make an effort to retrieve them would not bind the former President to produce them, Tr. at 60:14-20, and it would not make them magically available under FOIA:
Tr. at 60:22-61:15. This is the problem at the heart of the lawsuit that requires its dismissal.
Finally, while plaintiff labels its claim as an action under the APA, the lawsuit arises out of a FOIA request. Compl. ¶ 12.
To the extent that plaintiff is seeking relief related to the availability of documents under FOIA, that claim is governed by the Supreme Court's holding in Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). In that case, the Court held that FOIA does not give rise to a private right of action to compel an agency to retrieve documents that are not in its possession, even if one assumes that the documents were wrongfully withheld under the Federal Records Act. Id. at 151-52, 100 S.Ct. 960.
Thus, because the Court is unable to provide the remedy plaintiff seeks by ordering that defendant "assume custody and control" over the audiotapes, the Court is unable to redress plaintiff's claim. Accordingly, the Court will grant defendant's motion to dismiss [Dkt. # 6] under Fed. R. Civ. P. 12(b)(1) for lack of standing. A separate order will issue.
In the Court's view, plaintiff reads too much into this statement. Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President's term and in his sole discretion, see 44 U.S.C. § 2203(b), so the Deputy Archivist could not and did not make a classification decision that can be challenged here. When she posited that perhaps the plaintiff was asking NARA "to make a further determination that the materials in question ought to be considered `[P]residential records,'" she was, if anything, as counsel for the defendant suggested at the hearing, opining on the question of whether there were grounds for the Archivist to choose to invoke the enforcement mechanism embodied in the statute. Tr. at 8; 23-24. But, neither plaintiff nor defendant believes that is a decision that is at issue in this lawsuit, see id., at 8-9, 37, 42, and 50, and, as is discussed below, such a decision would not be reviewable in any event.
Defendant also contends that other provisions of the PRA demonstrate Congress's intent to preclude judicial review, particularly, the provision that allows the President to restrict access to certain Presidential records for up to twelve years. 44 U.S.C. § 2204(a). During that time period, there is no judicial review of that decision. Id. § 2204(b)(3). If the Court adopted plaintiff's position that personal records could be subject to judicial review at any time, "it would lead to an anomalous consequence that the President's most sensitive papers would immediately [be] subject to judicial review," while others would not. Def.'s Mem. in Support of Mot. to Dismiss at 28. These arguments have some force.
Tr. at 30 (emphasis added).
See Tr. at 41.
