Mary Ferrell Foundation, Inc. v. Biden

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 2024
• Docket: 24-1606
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 25 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE MARY FERRELL FOUNDATION, No. 24-1606 INC., et al., D.C. No. Plaintiffs-Appellants, 22-cv-06176-RS

v. Northern District of California, San Francisco JOSEPH R. BIDEN, et al.,

Defendants-Appellees. MEMORANDUM*

Appeal from the United States District Court for the Northern District of California Chief District Judge Richard Seeborg, Presiding

Argued and Submitted November 13, 2024 San Francisco, California

Before: S.R. THOMAS and MILLER, Circuit Judges, and MOLLOY,** District Judge.

The Mary Ferrell Foundation (“MFF”), a nonprofit corporation that

maintains an archive of documents related to the John F. Kennedy (“JFK”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. assassination, and two of its members, appeal the district court’s order denying

their claims for injunctive relief as well as the court’s order granting in part the

National Archives and Records Administration’s (“NARA”) motion to dismiss.

Because the parties are familiar with the factual and procedural history of the case,

we need not recount it here. We affirm the district court’s order denying injunctive

relief and dismiss the appeal of the order partially granting the motion to dismiss.

I

We lack appellate jurisdiction to review MFF’s appeal of the district court’s

order granting in part and denying in part NARA’s motion to dismiss. No final

judgment has issued in the case, and litigation is ongoing in the district court. See

Prellwitz v. Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (“[T]he district court’s

order was not final because it did not dispose of the action as to all claims between

the parties.”).

We also do not have pendent jurisdiction. See Hilton v. Hallmark Cards,

599 F.3d 894, 902 (9th Cir. 2010) (no pendent jurisdiction when “the properly

appealable order can be resolved without necessarily resolving the pendent order”).

“Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that

ordinarily may not be reviewed on interlocutory appeal, but may be reviewed on

interlocutory appeal if raised in conjunction with other issues properly before the

2 court.” Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000). “To justify

the exercise of pendent jurisdiction, the legal theories on which the issues advance

must either (a) be so intertwined that we must decide the pendent issue in order to

review the claims properly raised on interlocutory appeal . . ., or (b) resolution of

the issue properly raised on interlocutory appeal necessarily resolves the pendent

issue.” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 975 (9th Cir. 2015) (internal

quotations and citation omitted). “[I]f the properly appealable order can be

resolved without necessarily resolving the pendent order, then the latter is not

‘inextricably intertwined’ with the former.” Hilton, 599 F.3d at 902. It is not

necessary for us to determine if the court erred in granting in part NARA’s motion

to dismiss in order to review the district court’s order denying preliminary

injunctive relief.

For these reasons, we must dismiss the appeal of the dismissal order.

II

A district court’s decision regarding preliminary injunctive relief is subject

to limited review. See Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th Cir.

2016). We reverse the district court only if it “abused its discretion or based its

decision on an erroneous legal standard or on clearly erroneous findings of fact.”

Fed. Trade Comm’n v. Consumer Def., LLC, 926 F.3d 1208, 1211–12 (9th Cir.

3 2019). To obtain a preliminary injunction, a plaintiff bears the burden of

establishing “[1] that he is likely to succeed on the merits, [2] that he is likely to

suffer irreparable harm in the absence of preliminary relief, [3] that the balance of

equities tips in his favor, [4] and that an injunction is in the public interest.” Am.

Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

The district court denied MFF’s motions for injunctive relief, seeking

preliminary injunctions: (1) to set aside the Biden memoranda and NARA

Guidance Document, and (2) to instruct NARA to collect all remaining

assassination records before the Archivist certifies that “all assassination records

have been made available to the public in accordance with the Act,” JFK Act §

l2(b).

A

The district court did not abuse its discretion in concluding that MFF was

unlikely to succeed on the merits of the first request for preliminary injunction,

which seeks to set aside the Biden memoranda and NARA Guidance Document.

MFF’s request for injunctive relief is based on various claims that the 2022 and

2023 Biden memoranda postponing release under Section 5(g)(2)(D) violated the

requirements of the Act.

4 First, MFF asks us to set aside Section 6(a) of the 2022 Biden Memorandum

because it “rewrite[es] the definition of ‘public interest’ rather than using the

definition . . . in the JFK Records Act.” However, in his Memorandum, the

President did not purport to modify the statutory definition of “public interest” in

any way. Rather, the Memorandum merely requests that agencies give “substantial

weight to the public interest.” This direction is completely compatible with the

statutory definition of “public interest.”

Second, MFF requests that Section 7 of the 2022 Biden Memorandum also

be set aside because it allows for “event-based and circumstance-based conditions”

to trigger disclosure, which—according to MFF—is incompatible with the JFK

Records Act. MFF concedes that the President may allow for “triggering events or

circumstance” to dictate document disclosure. However, MFF asserts that “the

name and identity of a living person - standing alone - is a non-statutory criterion.”

In adopting the Transparency Plans, the President did not postpone the release of

information based solely on an individual’s name and identity. Rather, the

President expressly stated that continued postponement “is necessary to protect

against identifiable harms to the military defense, intelligence operations, law

enforcement, and the conduct of foreign relations that are of such gravity that they

outweigh the public interest in disclosure.” 87 Fed. Reg. 77,967, 77,968 (Dec. 15,

5 2022). The President’s actions were consistent with the Section 5(g)(2)(D)

requirements.

Third, MFF asks us to set aside a portion of the 2023 Biden memorandum

that states—allegedly inaccurately—that the President’s duty to certify the

postponement of records is no longer required. MFF contends that periodic review

must continue, notwithstanding the President’s final certification in the

Memorandum.

MFF is conflating two separate sections of the Act. Section 9(d) applies to

postponement by the President after an initial determination by the Assassination

Records Review Board (“Board”), while Section 5(g)(2)(D) of the Act contains no

reference to further periodic review after the 25-year deadline. MFF does not cite

any determination by the now defunct Board that would require periodic review.

Finally, MFF requests us to set aside NARA Guidance Document which

allegedly used non-statutory criteria in making disclosure decisions. However,

MFF fails to explain how this internal direction played any role in the President’s

eventual certification decision. The record establishes that the Guidance

Document was merely meant to help agencies determine what information to

provide the President. No provision of the Act was violated in this directive.

6 In sum, the district court correctly concluded that MFF was unlikely to

prevail on any of these claims.

B

The district court also properly concluded that MFF failed to show

likelihood of success on the merits relating to its request for a preliminary

injunction instructing NARA to collect additional assassination records. This

request for injunctive relief is unlikely to succeed on the merits for several reasons.

First, it is contrary to the statutory language of the Act. The Act clearly

requires the Board, not NARA, to oversee the collection and review of the

assassination records. Act § 5(c)(1); see also Act § 7(i)-(j). No provision of the

Act purports to impose this duty on NARA. The NARA and the Board are two

distinct entities, separately referenced in the Act and tasked with separate statutory

functions. See Act §§ 3(5)(D) (defining the National Archives); 3(12) (defining

the Review Board); 5(f) (discussing the responsibilities of the National Archives);

4(d)(2) (same); 7 (discussing the establishment and responsibilities of the Review

Board). In fact, Congress specifically and explicitly expressed that the Board’s

obligations would cease when the Board itself terminated. Act § 12(a) (“The

provisions of this Act that pertain to the appointment and operation of the Review

Board shall cease to be effective when the Review Board and the terms of its

7 members have terminated pursuant to section 7(o).”). To transfer the

responsibilities of the Board onto NARA would defeat Congress’ intent to

time-limit the Board and its responsibilities.

Second, MFF is also unlikely to succeed on the merits because it is

attempting to compel agency action and as such must be able to bring its claim

under the Administrative Procedure Act (“APA”). Under the APA, a court can

“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §

706(1). A § 706(1) claim can proceed only where a plaintiff “asserts that an

agency failed to take a discrete agency action that it is required to take.” Norton v.

S. Utah Wilderness All., 542 U.S. 55, 64 (2004). Here, MFF challenges the

NARA’s failure to collect additional assassination records. However, it fails to

identify a “discrete” agency action NARA is “legally required” to take. The Act

clearly requires the Board, not NARA, to oversee the collection and review of the

assassination records. Act § 5(c)(1).

C

The district court also did not abuse its discretion in concluding that MFF

failed to demonstrate it will suffer irreparable harm if the requested injunctions are

not granted. A plaintiff must show that she “is likely to suffer irreparable harm in

the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

8 7, 20 (2008). “[S]peculative injury does not constitute irreparable injury sufficient

to warrant granting a preliminary injunction . . . a plaintiff must demonstrate

immediate threatened injury as a prerequisite to preliminary injunctive relief.”

Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (internal

citations omitted).

MFF asserts it will suffer irreparable harm because “witnesses . . . are dying

every day” and “individuals in the documents are . . . at the age the risk of death

and dementia exponentially accelerates.” The alleged harm asserted by MFF is

wholly speculative—it relies on the premise that the witnesses would be available

and willing to be interviewed, and that the information gleaned in the interviews

would result in the discovery of documents that are not already in NARA’s

possession and would not be identified if not for the interview. MFF also fails to

explain how absent an injunction enjoining NARA from implementing the

President’s memoranda or mandating that NARA conduct additional searches, one

or more of the relevant witnesses could potentially die before they can provide the

hypothetical information. However, such speculative injury is not sufficient to

warrant a preliminary injunction. See Goldie’s Bookstore, Inc. v. Superior Ct. of

State of Cal., 739 F.2d 466, 472 (9th Cir. 1984).

9 MFF’s delay in requesting preliminary injunctive relief also weakens its

claim of irreparable harm. “A preliminary injunction is sought upon the theory

that there is an urgent need for speedy action to protect the plaintiff's rights. By

sleeping on its rights a plaintiff demonstrates the lack of need for speedy action.”

Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984)

(internal citations omitted). The Act has been in place for over 30 years and the

relevant witnesses have been continuously aging. MFF did not seek the relevant

preliminary injunctions until October and December of 2023, over a year after

filing its initial complaint and multiple years after the President first invoked his

authority under Section 5(g)(2)(D). MFF did not act in a manner that would elicit

“emergency relief,” and therefore, the delay in filing the preliminary injunction

“undercut” MFF’s claim for irreparable harm. See Garcia v. Google, Inc., 786

F.3d 733, 746 (9th Cir. 2015). Therefore, the district court did not abuse its

discretion in finding that MFF failed to show irreparable harm.

D

The balance of harms and the public interest weigh heavily against the

granting of the preliminary injunctions. The third and fourth requirements for the

issuance of a preliminary injunction—the balance of harms and the public

interest—“merge when the Government is the opposing party.” Nken v. Holder,

10 556 U.S. 418, 435 (2009). Here, those factors weigh overwhelmingly against the

requested injunctions.

MFF fails to show how its request to enjoin the Biden memoranda would be

in the public interest. The President determined that postponement subject to the

Transparency Plans is necessary to protect “the military defense, intelligence

operations, law enforcement, or the conduct of foreign relations,” and that the harm

from disclosure is “of such gravity that it outweighs the public interest in

disclosure.” 87 Fed. Reg. at 77,968; 88 Fed. Reg. 34,247, 43,248 (July 7, 2023).

Not only does the Act specifically grant this authority to the President, Act §

5(g)(2)(D), but overriding such a determination would be contrary to the deference

the Judiciary owes the Executive Branch regarding matters of national security.

See United States v. Jennings, 960 F.2d 1488, 1491 (9th Cir. 1992) (“The judiciary

does not have a license to intrude into the authority, powers and functions of the

executive branch, for judges are not executive officers, vested with discretion over

law enforcement policy and decisions.”) (cleaned up).

With respect to MFF’s request for NARA to “collect all remaining

assassination records,” MFF fails to show how the requested collection effort

would be in the public interest. All relevant assassination records that have been

identified to date have been transferred to NARA. Therefore, any obligation to

11 collect additional assassination records would fall within the purview of the

relevant agencies, not NARA. See Act § 5(a) (“[E]ach Government office shall

identify and organize its records relating to the assassination of President John F.

Kennedy and prepare them for transmission to the Archivist for inclusion in the

Collection.”). It is unclear what benefit imposing such an order would have—the

NARA merely serves as a records recipient, as NARA itself does not

independently maintain Government records, but rather serves as a “custodian of

assassination records.” Act § 3(5)(D).

III

In sum, we must dismiss MFF’s appeal of the dismissal order for lack of

appellate jurisdiction. The district court did not abuse its discretion in denying the

requested preliminary injunctions.

AFFIRMED IN PART; DISMISSED IN PART.