Doyle v. US Department of Homeland Security, No. 18-2814 (2d Cir. 2020)
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Plaintiffs sought a Freedom of Information Act (FOIA) request from the Secret Service seeking visitor logs for the White House Complex and President Trump's Mar-a-Lago home in Florida. After the Secret Service denied the request, the district court agreed and refused to compel production of the withheld records. The district court also dismissed for want of subject matter jurisdiction plaintiffs' claims that an agreement between the Secret Service and the Executive Office of the President that allegedly governed the maintenance of the visitor logs violated the Presidential Records Act (PRA) and the Federal Records Act (FRA).
The Second Circuit affirmed, holding that the visitor logs that plaintiffs seek are not agency records subject to FOIA. The court also held that plaintiffs failed to state a claim under the PRA or the FRA, because plaintiffs have failed to sufficiently to allege that the 2015 MOU prescribes recordkeeping practices that violate the FRA or PRA. Finally, plaintiffs' remaining arguments lack merit. The court denied plaintiffs' request to amend their complaint.
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18-2814 Doyle v. US Dept. of Homeland Security 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2019 (Argued: September 23, 2019 Decided: May 18, 2020) Docket No. 18-2814-cv _____________________________________ KATE DOYLE, NATIONAL SECURITY ARCHIVE, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellee. _____________________________________ Before: CALABRESI, LOHIER, and PARK, Circuit Judges. This appeal involves a Freedom of Information Act (FOIA) request to the Secret Service seeking visitor logs for the White House Complex and President Trump’s Mar-a-Lago home in Florida from January 20, 2017 to March 8, 2017. The Secret Service denied the request, claiming that the visitor logs were not “agency records” subject to FOIA. The District Court (Failla, J.) agreed with the Secret Service and refused to compel production of the withheld records. The District Court also dismissed for want of subjectmatter jurisdiction the plaintiffs’ claims that an agreement between the Secret Service and the Executive Office of the President that allegedly governed the maintenance of the visitor logs violated the Presidential Records Act and the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Federal Records Act. We AFFIRM the District Court’s judgment and DENY the plaintiffs’ request on appeal to amend their complaint. ANNE L. WEISMANN, Citizens for Responsibility and Ethics in Washington, Washington, D.C. (Conor M. Shaw, Citizens for Responsibility and Ethics in Washington, Washington, D.C., Alexander Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, on the brief), for Plaintiffs-Appellants Kate Doyle, National Security Archive, Citizens for Responsibility and Ethics in Washington, Knight First Amendment Institute at Columbia University. SARAH S. NORMAND, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee United States Department of Homeland Security. LOHIER, Circuit Judge: 23 In this appeal we principally consider whether certain visitor logs for 24 the White House Complex and the President’s Mar-a-Lago home in Florida 25 are “agency records” subject to the Freedom of Information Act (FOIA). The 26 plaintiffs, all but one of whom are government watchdog groups of one form 27 or another, filed a request with the Secret Service, a component of the 28 Department of Homeland Security (DHS), seeking visitor logs from January 29 20, 2017 to March 8, 2017. The Secret Service denied the request and withheld 30 the logs, claiming that they were not agency records under FOIA. The 2 1 plaintiffs sued in federal court and moved to compel production of the 2 withheld records, but the United States District Court for the Southern 3 District of New York (Failla, J.) agreed with the Secret Service that the logs 4 were not agency records and accordingly denied the plaintiffs’ motion. The 5 District Court also dismissed for lack of subject-matter jurisdiction the 6 plaintiffs’ separate claims under the Presidential Records Act (PRA) and the 7 Federal Records Act (FRA) challenging an agreement between the Secret 8 Service and the Executive Office of the President (EOP) that allegedly 9 governed how the visitor logs were to be maintained. 10 11 For the following reasons, we AFFIRM the District Court’s judgment and DENY the plaintiffs’ request on appeal to amend their complaint. BACKGROUND 12 13 14 1. Facts a. Records of Visitors to the White House Complex 15 In order to protect the President, the Secret Service monitors and 16 controls access to the White House Complex, see 18 U.S.C. §§ 3056A(a)(1)-(2), 17 3056(a)(1), using two electronic systems. It uses the first system, known as the 18 Worker and Visitor Entrance System (WAVES), to vet potential visitors and to 3 1 determine which portions of the White House Complex they can access. It 2 uses the second system, known as the Executive Facilities Access Control 3 System (EFACS), to control how visitors access the White House Complex 4 once they arrive. 5 To operate these systems, the Secret Service needs to know who is 6 visiting the White House Complex and when. So White House Complex 7 employees notify the Secret Service of anticipated visitors and provide the 8 Secret Service with personal information about each prospective visitor so 9 that it can determine whether and under what conditions that visitor should 10 be admitted. This information is stored in WAVES and includes the visitor’s 11 name, date of birth, and Social Security number; the date, time, and location 12 of the planned visit; the name of the White House Complex employee who 13 notified the Secret Service of the impending visit; and the name of the person 14 to be visited. 15 When a visitor arrives, the Secret Service issues a badge that the visitor 16 is required to swipe to enter and exit the White House Complex’s various 17 components. Each swipe generates an Access Control Record (ACR) within 18 EFACS that captures the visitor’s name, badge number, the date and time of 4 1 the swipe, and the location at which the badge was swiped. A visitor’s ACRs 2 thus show (or should show) the visitor’s principal interactions with 3 components of the White House Complex. 4 The Secret Service claims only a temporary interest in the ACR and 5 WAVES records. Instead of retaining them, it routinely transfers the records 6 of completed visits to the White House Office of Records Management. In 7 2015 the Secret Service and the White House sought to clarify their respective 8 roles with respect to these records and to establish a framework for 9 implementing policies and procedures governing both the WAVES and 10 EFACS systems as well as the records within those systems. That year, the 11 Secret Service and a component of the White House therefore executed a 12 Memorandum of Understanding (2015 MOU), which stated in relevant part 13 that: 14 15 16 17 18 19 20 21 All records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component. Such records are hereinafter referred to as “EOP records.” 5 1 Joint App’x 96. Although the parties contest how to interpret the 2015 MOU, 2 all agree that it purports to vest control of ACR and WAVES records in the 3 President and away from the Secret Service, leaving the Secret Service merely 4 to manage and operate the WAVES and EFACS systems. 5 b. Documents Related to Mar-a-Lago 6 The Secret Service had no comparable systems in place to screen or 7 monitor presidential visitors to the President’s Mar-a-Lago or Trump Tower 8 homes. Nevertheless, in searching for records responsive to the plaintiffs’ 9 FOIA requests, the Secret Service managed to locate three categories of 10 responsive documents related to Mar-a-Lago: 1 first, copies of the President’s 11 schedules for certain days; second, emails between Secret Service members Both parties agree that there are no records responsive to the FOIA requests regarding Trump Tower because the President did not visit Trump Tower during the relevant time period. 1 6 1 containing those schedules; and third, emails from the White House about 2 expected visitors to Mar-a-Lago. 3 4 c. The FOIA requests On January 23, 2017, prior to the commencement of this case, one of the 5 plaintiffs, Kate Doyle, sent to the Secret Service a FOIA request seeking all 6 ACR and WAVES records created between January 20 to January 22, 2017. 7 After a month passed without response, Doyle sent an administrative appeal 8 of her request to the Secret Service. A few weeks later, on March 10, the 9 plaintiffs collectively sent to the Secret Service a FOIA request seeking all 10 ACR and WAVES records from January 20, 2017 until March 8, 2017, and all 11 records of presidential visitors at Mar-a-Lago and Trump Tower in New York 12 over the same time period. The Secret Service again failed to respond within 13 the timeframe set forth in FOIA. 14 2. Procedural History 15 The plaintiffs filed this lawsuit in April 2017. They alleged that DHS (in 16 effect, the Secret Service) unlawfully withheld the requested visitor logs in 17 violation of FOIA, 5 U.S.C. § 552, and that the agency’s failure to treat ACR 18 and WAVES records as subject to FOIA violated both the FRA, 44 U.S.C. 7 1 §§ 2101, et seq., 3101, et seq., 3301, et seq., and the PRA, 44 U.S.C. § 2201 et 2 seq. 3 DHS filed a Rule 56 motion for summary judgment on the plaintiffs’ 4 FOIA claims and a Rule 12(b) motion to dismiss the PRA and FRA claims for 5 lack of subject-matter jurisdiction or, in the alternative, for failure to state a 6 claim. The District Court granted in part and denied in part the motion for 7 summary judgment and granted the motion to dismiss in its entirety. It 8 concluded, as relevant here, that the visitor logs for Mar-a-Lago and the 9 presidential components of the White House Complex were not “agency 10 records” subject to disclosure under FOIA and that it lacked subject-matter 11 jurisdiction over the FRA and PRA claims. 12 13 14 This appeal followed. DISCUSSION During the litigation DHS disclosed the requested visitor logs for the 15 agency components of the White House Complex, but it refused to do so for 16 the White House Complex’s presidential components. See Main St. Legal 17 Servs., Inc. v. Nat’l Sec. Council, 811 F.3d 542, 547 (2d Cir. 2016) 18 (distinguishing agency components, which possess “substantial independent 8 1 authority” from the President and “exercise . . . specific functions” beyond 2 “advis[ing] and assist[ing] the President,” from presidential components, 3 which “sole[ly] . . . advise and assist the President” (quotation marks 4 omitted)). What remains at issue on appeal, therefore, are only the ACR and 5 WAVES records for presidential components and the presidential schedule 6 documents for Mar-a-Lago discussed above. 7 As to these materials, the plaintiffs press two main arguments on 8 appeal. First, relying on United States Department of Justice v. Tax Analysts, 9 492 U.S. 136 (1989), they contend that the visitor logs were agency records and 10 that the District Court’s determination to the contrary was wrong. Second, 11 citing cases from the D.C. Circuit, they urge us to vacate the District Court’s 12 dismissal of their PRA and FRA claims. See Armstrong v. Bush, 924 F.2d 282 13 (D.C. Cir. 1991) (Armstrong I); Armstrong v. Exec. Office of the President, 1 14 F.3d 1274 (D.C. Cir. 1993) (Armstrong II). We address each of these 15 arguments in turn. 16 1. Agency Records 17 We review the District Court’s grant of summary judgment as to the 18 FOIA claims de novo, drawing all factual inferences in favor of the plaintiffs, 9 1 the non-moving parties. See Paneccasio v. Unisource Worldwide, Inc., 532 2 F.3d 101, 107 (2d Cir. 2008). Summary judgment “is proper only when there 3 is no genuine dispute as to any material fact and the movant is entitled to 4 judgment as a matter of law.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 5 158 (2d Cir. 2016) (quotation marks omitted). 6 7 a. FOIA and Tax Analysts Subject to certain statutory exemptions, FOIA requires federal agencies 8 to make agency records available to the public upon request. See 5 U.S.C. 9 § 552(a)(3)(A), (b)(1)–(9). To that end, FOIA grants federal district courts 10 “jurisdiction to enjoin [an] agency from withholding agency records and to 11 order the production of any agency records improperly withheld.” Id. 12 § 552(a)(4)(B). Although the term “agency record” is “defined neither in the 13 Act nor in its legislative history,” Tax Analysts, 492 U.S. at 142; see Forsham v. 14 Harris, 445 U.S. 169, 178 (1980), the Supreme Court has explained that 15 documents may qualify as “agency records” if they (1) are created or obtained 16 by an agency, and (2) “have come into the agency’s possession in the 17 legitimate conduct of its official duties,” Tax Analysts, 492 U.S. at 144–45. 18 When there is a dispute about what qualifies as an agency record, “[t]he 10 1 burden is on the agency to demonstrate, not the requester to disprove, that 2 the materials sought are not agency records.” Id. at 142 n.3 (quotation marks 3 omitted). 4 On appeal, the plaintiffs insist that the two-part test in Tax Analysts 5 easily resolves this case because neither party disputes that the Secret Service 6 obtained the visitor logs in furtherance of its duty to protect the President. 7 Because both prongs of Tax Analysts are satisfied, the plaintiffs assert, the 8 visitor logs necessarily qualify as agency records under FOIA. 9 Tax Analysts does not resolve this appeal. That case concerned a non- 10 profit magazine company seeking disclosure of publicly available district 11 court tax opinions that had been aggregated by the Department of Justice’s 12 Tax Division. Id. at 138–40. This case, by contrast, concerns the disclosure of 13 virtually every visitor that the President received over a seven-week period at 14 home and at work. Why does that matter? Because, the Supreme Court tells 15 us, “special considerations control when the Executive Branch’s interests in 16 maintaining the autonomy of its office and safeguarding the confidentiality of 17 its communications are implicated.” Cheney v. U.S. Dist. Court for D.C., 542 18 U.S. 367, 385 (2004). Tax Analysts does not suggest that those considerations 11 1 disappear when we interpret FOIA. To the contrary, as we explain below, 2 they clearly exist in this case. 3 b. Constitutional Avoidance 4 At stake here is the President’s “constitutional prerogative of 5 maintaining secrecy” as it relates to the confidentiality of his conversations 6 and correspondence. Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 7 224 (D.C. Cir. 2013) (quotation marks omitted). Though certainly not without 8 limits, that prerogative serves under the circumstances of this case to ensure 9 that the President receives frank and honest advice. See id. at 226. The 10 plaintiffs’ interpretation of FOIA threatens this prerogative. Compelled 11 disclosure of the visitor logs would affect a President’s ability to receive 12 unfettered, candid counsel from outside advisors and leaders, both domestic 13 and foreign, who were aware that their visits to the White House would be 14 subject to public disclosure. Judge Garland aptly captured these significant 15 concerns in Judicial Watch: 16 17 18 19 20 Construing the term “agency records” to extend to White House visitor logs—regardless of whether they are in the possession of the White House or the Secret Service—could substantially affect the President’s ability to meet confidentially with 12 1 2 3 4 5 6 foreign leaders, agency officials, or members of the public. And that could render FOIA a potentially serious congressional intrusion into the conduct of the President’s daily operations. Id. Like the D.C. Circuit in Judicial Watch, we think that the plaintiffs’ 7 view of FOIA raises a difficult constitutional question: whether Congress can, 8 consistent with the separation of powers, require the President “to surrender 9 [his] constitutional prerogative of maintaining secrecy regarding his choice of 10 visitors (and therefore of outside advisors).” Id. at 224 (quotation marks 11 omitted). We are bound to avoid deciding the constitutional question if the 12 ambiguous statutory text to be interpreted—“agency records”—“fairly admits 13 of a less problematic construction.” Pub. Citizen v. U.S. Dep’t of Justice, 491 14 U.S. 440, 455 (1989); see Clark v. Martinez, 543 U.S. 371, 381 (2005) (the canon 15 of constitutional avoidance “is a tool for choosing between competing 16 plausible interpretations of a statutory text, resting on the reasonable 17 presumption that Congress did not intend the alternative which raises serious 18 constitutional doubts”). Although the plaintiffs urge us to conclude 19 otherwise, we are not persuaded that the term “agency record” plainly 20 applies to the visitor logs in this case. We have explained that agency 13 1 “control” is key to determining whether materials qualify as “agency records” 2 under FOIA. See Grand Cent. P’ship, Inc. v Cuomo, 166 F.3d 473, 479 (2d Cir. 3 1999). We note that the D.C. Circuit in Judicial Watch found that its own 4 control test yielded an “indeterminate” answer to essentially the same 5 question relating to the electronic system that contains the ACR and WAVES 6 records. Judicial Watch, 726 F.3d at 218, 231. And just as in Judicial Watch, 7 the case before us “involves documents that an agency created in response to 8 requests from, and information provided by, a governmental entity not 9 covered by FOIA,” namely, the Office of the President; those documents 10 “contain visitor information provided by that Office”; “the non-covered 11 entity—here, the White House—has manifested a clear intent to control the 12 documents,” such that “the agency is not free to use and dispose of the 13 documents as it sees fit”; the Office of the President “cannot retain effective 14 physical control over” the records because “Congress requires the President 15 to accept the protection of the Secret Service”; and “disclosing the records 16 would reveal the specific requests made by the non-covered entity—here, the 17 Office of the President’s requests for visitor clearance.” Id. at 222–23, 225 18 (quotation marks omitted). Under these circumstances, the term “agency 14 1 records” may reasonably (though not necessarily) be interpreted to exclude 2 the visitor logs at issue, in part because it is hard for us to “believe Congress 3 intended that FOIA requesters be able to obtain from the gatekeepers of the 4 White House what they are unable to obtain from its occupants.” Id. at 233. 5 We therefore follow the lead of Judicial Watch in declining to compel the 6 disclosure of those logs under FOIA given the difficult but avoidable 7 constitutional question that compelling disclosure would raise if we were to 8 interpret “agency records” in a different way. 9 The plaintiffs urge us to ignore the constitutional avoidance canon for 10 two reasons. As an initial matter, they argue that FOIA’s various exemptions 11 adequately protect the President’s general interest in privacy and candid 12 advice, even as FOIA requires disclosing the visitor logs here. In addition, 13 they claim that resorting to the avoidance canon would exclude from FOIA 14 many documents whose disclosure FOIA indisputably now permits. We are 15 not persuaded by either argument. 16 First, resolving the issue of whether the visitor logs are exempt from 17 FOIA would still require that we consider whether Congress may 18 constitutionally compel the disclosure of the visitor logs in the absence of an 15 1 applicable exemption. That question is itself a difficult one. If Congress could 2 do that, then the Office of the President would be required to evaluate the 3 applicability of a FOIA exemption to every in-Complex meeting with a 4 visiting advisor on a document-by-document basis. But “the burden of 5 identifying those records on a document-by-document basis is substantial 6 enough to make that an ineffective way of mitigating the kind of separation- 7 of-powers concerns at issue here.” Id. at 230. The question would, in other 8 words, “be at least as difficult—and present separation-of-powers questions 9 as least as serious—as deciding the question now before us.” Id. But there is 10 11 “nothing to be gained by trading one difficult question for another.” Id. Second, our decision in this case does not “create a sweeping tenth 12 exemption to FOIA” as the plaintiffs claim. Appellants’ Reply Br. 4. To the 13 contrary, our application of the avoidance canon is limited to the very narrow 14 circumstances involving the availability under FOIA of the President’s 15 schedules and visitor logs for Mar-a-Lago and the White House Complex 16 respectively. Because that is the sole FOIA issue before us, we need not and 17 do not address questions involving the availability under FOIA of pardon 16 1 documents, Office of Legal Counsel opinions, and Office of Government 2 Ethics advice, all of which the plaintiffs fear our decision will cover. 3 4 For these reasons, we affirm the District Court’s grant of summary judgment in favor of DHS on the FOIA claims. 5 2. The Federal Records Act and the Presidential Records Act 6 The plaintiffs also argue that the District Court erred in dismissing their 7 claims under the FRA and the PRA for want of subject-matter jurisdiction. 8 See Fed. R. Civ. P. 12(b)(1). For purposes of this appeal, we assume without 9 deciding that we have statutory jurisdiction under the FRA. See Conyers v. 10 Rossides, 558 F.3d 137, 150 (2d Cir. 2009); Abimbola v. Ashcroft, 378 F.3d 173, 11 180 (2d Cir. 2004). As for the PRA, the Government concedes that the statute 12 permits very “limited [judicial] review to assure that guidelines defining 13 presidential records do not improperly sweep in nonpresidential records.” 14 Armstrong II, 1 F.3d at 1278; see id. at 1294 (“[T]he courts may review 15 guidelines outlining what is, and what is not, a presidential record . . . .” 16 (quotation marks omitted)). 17 18 On the merits, we view the facts in the light most favorable to the plaintiffs and review questions of law de novo. See Bascuñán v. Elsaca, 874 17 1 F.3d 806, 810 (2d Cir. 2017). With those principles in mind, we conclude that 2 the plaintiffs failed to state a claim under the FRA or the PRA. See Fed. R. 3 Civ. P. 12(b)(6). 4 5 a. Statutory Background The FRA and PRA cover government records in different ways. The 6 FRA governs the creation, management, and disposal of federal records. The 7 statute mandates that “[t]he head of each Federal agency shall make and 8 preserve records” documenting the business of the agency, 44 U.S.C. § 3101, 9 and that the federal Archivist promulgate rules regarding record 10 management and preservation that agency heads are obligated to follow, see 11 id. §§ 2904(a), (c)(1), 3105. Federal agencies may not destroy records subject 12 to the FRA without first receiving the Archivist’s approval. See id. §§ 3302, 13 3314. The PRA similarly covers the maintenance and disposal of records, but 14 it does so for a limited class of records defined as: 15 16 17 18 19 20 21 documentary materials . . . created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or 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. 18 1 Id. § 2201(2). The PRA grants the President exclusive access to, and custody 2 and control over, these “Presidential records,” id. § 2203(f), and permits the 3 President to dispose of or destroy them as he sees fit, subject only to obtaining 4 the views of the federal Archivist, see id. § 2203(c)–(e). But the PRA prohibits 5 the President from designating as a presidential record any document that 6 qualifies as an agency record under FOIA. See id. § 2201(2)(B)(i). 7 b. Failure to State a Claim 8 9 The plaintiffs claim that the 2015 MOU violates the FRA and the PRA. The 2015 MOU, they explain, “declares that the records of visits to agency 10 components of the EOP” be treated as presidential records instead of agency 11 records subject to FOIA. Joint App’x 30–31. 2 12 As the parties appear to agree is appropriate, we turn to the D.C. 13 Circuit’s well-developed precedent in the Armstrong decisions for guidance 14 in evaluating the plaintiffs’ challenges under the FRA and the PRA. See 15 Armstrong I, 924 F.2d at 291–93; Armstrong II, 1 F.3d at 1292–94. As for the We note that the parties dispute whether the plaintiffs have challenged the 2015 MOU alone or also an earlier 2006 MOU. The District Court thought it the former. We agree. On appeal, the plaintiffs have acknowledged that the policy they challenge “is reflected in the 2015 MOU.” Appellants’ Reply Br. 26. Moreover, their operative complaint did not quote or cite the 2006 MOU or include it as an exhibit. 2 19 1 FRA, the purported recordkeeping guideline before us—the 2015 MOU— 2 neither describes how ACR and WAVES records will be preserved nor 3 permits the destruction of those records. The 2015 MOU instead provides 4 that records will be controlled by the EOP component from which the records 5 originated. Thus, when a record originates with an agency component subject 6 to FOIA, the 2015 MOU clearly acknowledges that the record should be 7 archived just as FOIA requires, not that it be treated as a record beyond 8 FOIA’s reach. We therefore reject the plaintiffs’ claim that the 2015 MOU 9 violates the FRA. 10 The plaintiffs’ claim under the PRA fails for similar reasons. As noted, 11 the PRA permits challenges to and judicial review of federal “guidelines 12 outlining what is, and what is not, a presidential record.” Armstrong II, 1 13 F.3d at 1294 (quotation marks omitted). But the 2015 MOU does not classify 14 records in this way. True, it grants the President exclusive control over 15 certain documents; but it does not describe or treat those documents as 16 presidential records. Compare 44 U.S.C. § 2203(c)–(e) (PRA providing the 17 President with unilateral authority to destroy presidential records) with Joint 18 App’x 96–97 (2015 MOU stating that records related to EOP components will 20 1 be archived). And, again, the MOU makes clear that control over records that 2 originate with an agency component rests with that agency component, not 3 the President. For this reason, we also affirm the District Court’s dismissal of 4 the plaintiffs’ claim under the PRA. 5 In summary, we conclude that the plaintiffs have failed sufficiently to 6 allege that the 2015 MOU prescribes recordkeeping practices that violate the 7 FRA or the PRA. See Fed. R. Civ. P. 12(b)(6). 8 3. Request to Amend 9 Finally, the plaintiffs ask for leave to amend their complaint for the 10 second time, although they admit that they failed to make this request to the 11 District Court. Of course, we are authorized to grant a request to amend that 12 seeks to remedy defective allegations of jurisdiction. See 28 U.S.C. § 1653. 13 Here, though, we have assumed that statutory jurisdiction exists under the 14 FRA and the Government has conceded that limited judicial review exists 15 under the PRA. Seeing no other basis to grant leave to amend directly on 16 appeal, we deny the plaintiffs’ request. 21 1 2 CONCLUSION We conclude that the visitor logs that the plaintiffs seek are not agency 3 records subject to FOIA and that the plaintiffs failed to state a claim under the 4 PRA or the FRA. We have considered the plaintiffs’ remaining arguments 5 and conclude that they are also without merit. For these reasons, we AFFIRM 6 the District Court’s judgment. We also DENY the plaintiffs’ request to amend 7 their complaint. 22
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