Mary Ferrell Foundation, Inc. v. Biden

Background

The Mary Ferrell Foundation, Josiah Thompson, and Gary Aguilar alleged that President Joseph R. Biden and the National Archives and Records Administration (NARA) had not complied with the President John F. Kennedy Assassination Records Collection Act of 1992. The Act generally required disclosure of assassination records by a 25-year deadline, while allowing the President to postpone disclosure when an identifiable national-security harm was serious enough to outweigh the public interest in disclosure.

The plaintiffs challenged presidential memoranda that continued postponements and authorized agency transparency plans. Their five claims sought relief against the President, challenged NARA’s actions under the Administrative Procedure Act, sought orders compelling NARA to perform specified duties, and alleged that NARA violated the Federal Records Act by failing to refer alleged destruction of records to the Attorney General. The plaintiffs also sought a preliminary injunction requiring various actions, including additional searches and steps concerning the transparency plans.

Claims Against the President

The court dismissed Counts 1 and 2 without leave to amend. Those counts sought injunctive, declaratory, and mandamus relief against the President. The court explained that courts generally lack jurisdiction to order the President to perform official duties, subject to limited exceptions for purely ministerial duties—duties leaving no room for judgment.

The court concluded that the President’s authority under the JFK Act was not ministerial because the Act required a judgment about whether continued postponement was necessary and whether the identified harm outweighed the public interest in disclosure. The court also concluded that the plaintiffs’ theories were based on requirements the Act did not impose, including record-by-record certifications, a clear-and-convincing-evidence standard, and an unclassified description of each determination. The court did not resolve the broader question whether declaratory relief against the President is generally available because the claims failed for other reasons.

Administrative Procedure Act Claim

The court dismissed Count 3. The plaintiffs challenged six categories of NARA conduct, including guidance, recommendations to the President, concurrence in postponement requests, review of transparency plans, an alleged pattern of refusing to search for records, and implementation of the Biden memoranda.

The court held that the first four categories were not “final agency action,” meaning completed agency decisions that determine rights or obligations or produce legal consequences. The President, rather than NARA, had the authority to postpone disclosure under the JFK Act. The court also held that the alleged pattern of refusing to search was not a discrete agency action, because the Administrative Procedure Act does not permit a broad challenge seeking wholesale improvement of an agency program. Although NARA’s withholding of postponed records was a discrete final agency action, the court found that the plaintiffs had not adequately alleged that NARA acted arbitrarily and capriciously in implementing the Biden memoranda.

Claim to Compel Agency Action or Obtain Mandamus

The court dismissed Count 4 except as to the portions concerning NARA’s maintenance of accurate reference aids and its failure to release legislative-branch records.

Under the Administrative Procedure Act and the mandamus statute, a court may compel an agency to take a discrete action that the law specifically and unequivocally requires. The court found that the plaintiffs plausibly alleged that NARA’s central directory and other identification aids were inaccurate, including an allegation that the directory omitted more than 500 records available online. That part of Count 4 therefore survived.

The court also found that the plaintiffs plausibly challenged NARA’s failure to release all legislative-branch records in 2017. The court read the JFK Act as limiting the President’s postponement authority under the provisions at issue to executive-branch records and certain information developed solely within that branch.

The court rejected the plaintiffs’ argument that NARA was the “successor in function” to the Assassination Records Review Board and therefore inherited all of the Board’s duties. It also held that the Act did not specifically require NARA to seek final declarations of compliance, follow up on outstanding search requests, or ensure that postponement decisions included an unclassified written explanation. Those portions of Count 4 were dismissed.

Federal Records Act Claim

The court denied the motion to dismiss Count 5 except to the extent the claim concerned NARA’s failure to pursue outstanding record searches. The plaintiffs alleged that the Review Board’s final report identified intentional destruction of assassination records by certain agencies and that NARA failed to refer the matter to the Attorney General.

The court found that the Federal Records Act provision governing the Archivist appeared to require referrals in circumstances broader than the provision governing agency heads. In the court’s reading, the Archivist’s duty could extend to destruction of records and other unlawful conduct, not only unlawful removal. The plaintiffs therefore stated a plausible claim regarding the failure to refer the alleged destruction. The court held separately that the Federal Records Act imposed no independent duty on NARA to complete the outstanding searches.

Preliminary Injunction

The court denied the plaintiffs’ motion for a preliminary injunction. The plaintiffs had to show, among other things, a likelihood of success on the merits and a likelihood of irreparable harm. The court found that they had shown neither. It relied in part on their delay after the first postponement memorandum in 2017 and on its earlier rejection of arguments concerning outstanding searches, NARA’s relationship to the Review Board, and the transparency plans.

Disposition

The defendants’ motion to dismiss was granted except as to the portions of Count 4 concerning release of legislative records and maintenance of certain reference aids, and the portion of Count 5 concerning failure to refer destruction of records to the Attorney General. The plaintiffs’ motion for a preliminary injunction was denied.