     18-2814
     Doyle v. US Dept. of Homeland Security

 1                      UNITED STATES COURT OF APPEALS
 2                          FOR THE SECOND CIRCUIT
 3
 4                                   August Term, 2019
 5
 6             (Argued: September 23, 2019              Decided: May 18, 2020)
 7
 8                                 Docket No. 18-2814-cv
 9
10                        _____________________________________
11
12           KATE DOYLE, NATIONAL SECURITY ARCHIVE, CITIZENS
13        FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, KNIGHT
14         FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,
15
16                                   Plaintiffs-Appellants,
17
18                                            v.
19
20          UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
21
22                                   Defendant-Appellee.
23                        _____________________________________
24
25   Before:
26
27                   CALABRESI, LOHIER, and PARK, Circuit Judges.
28
29         This appeal involves a Freedom of Information Act (FOIA) request to
30   the Secret Service seeking visitor logs for the White House Complex and
31   President Trump’s Mar-a-Lago home in Florida from January 20, 2017 to
32   March 8, 2017. The Secret Service denied the request, claiming that the visitor
33   logs were not “agency records” subject to FOIA. The District Court (Failla, J.)
34   agreed with the Secret Service and refused to compel production of the
35   withheld records. The District Court also dismissed for want of subject-
36   matter jurisdiction the plaintiffs’ claims that an agreement between the Secret
37   Service and the Executive Office of the President that allegedly governed the
38   maintenance of the visitor logs violated the Presidential Records Act and the
 1   Federal Records Act. We AFFIRM the District Court’s judgment and DENY
 2   the plaintiffs’ request on appeal to amend their complaint.
 3
 4                            ANNE L. WEISMANN, Citizens for Responsibility and
 5                            Ethics in Washington, Washington, D.C. (Conor M.
 6                            Shaw, Citizens for Responsibility and Ethics in
 7                            Washington, Washington, D.C., Alexander Abdo,
 8                            Jameel Jaffer, Knight First Amendment Institute at
 9                            Columbia University, New York, NY, on the brief), for
10                            Plaintiffs-Appellants Kate Doyle, National Security
11                            Archive, Citizens for Responsibility and Ethics in
12                            Washington, Knight First Amendment Institute at
13                            Columbia University.
14
15                            SARAH S. NORMAND, Assistant United States
16                            Attorney (Benjamin H. Torrance, Assistant United
17                            States Attorney, on the brief), for Geoffrey S. Berman,
18                            United States Attorney for the Southern District of
19                            New York, New York, NY, for Defendant-Appellee
20                            United States Department of Homeland Security.
21
22   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         For the following reasons, we AFFIRM the District Court’s judgment

11   and DENY the plaintiffs’ request on appeal to amend their complaint.

12                                  BACKGROUND

13         1. Facts

14               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              All records created, stored, used, or transmitted by, on, or
15              through the unclassified information systems and
16              information resources provided to the President, Vice
17              President, and EOP shall remain under the exclusive
18              ownership, control, and custody of the President, Vice
19              President, or originating EOP component. Such records
20              are hereinafter referred to as “EOP records.”
21


                                              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




     1Both 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.
                                            6
 1   containing those schedules; and third, emails from the White House about

 2   expected visitors to Mar-a-Lago.

 3               c. The FOIA requests

 4         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          This appeal followed.

13                                     DISCUSSION

14          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               a. FOIA and Tax Analysts

 7         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                Construing the term “agency records” to extend to
17                White House visitor logs—regardless of whether
18                they are in the possession of the White House or the
19                Secret Service—could substantially affect the
20                President’s ability to meet confidentially with

                                             12
 1                foreign leaders, agency officials, or members of the
 2                public. And that could render FOIA a potentially
 3                serious congressional intrusion into the conduct of
 4                the President’s daily operations.

 5   Id.

 6         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   “nothing to be gained by trading one difficult question for another.” Id.

11         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         For these reasons, we affirm the District Court’s grant of summary

4    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         On the merits, we view the facts in the light most favorable to the

18   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               a. Statutory Background

 5         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             documentary materials . . . created or received by the
16             President, the President’s immediate staff, or a unit or
17             individual of the Executive Office of the President whose
18             function is to advise or assist the President, in the course of
19             conducting activities which relate to or have an effect upon
20             the carrying out of the constitutional, statutory, or other
21             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         The plaintiffs claim that the 2015 MOU violates the FRA and the PRA.

 9   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



     2We 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.
                                             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                                   CONCLUSION

2         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.




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