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ARMSTRONG v. EXECUTIVE OFFICE OF THE PRESIDENT

May 21, 1993

SCOTT ARMSTRONG, et al., Plaintiffs,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, et al., Defendants.



The opinion of the court was delivered by: CHARLES R. RICHEY

 I. INTRODUCTION

 Before the Court are the Defendants' and the Plaintiffs' responses to this Court's Order of April 6, 1993, where this Court ordered the Defendants to show cause as to whether they should be held in civil contempt for their failure to comply with this Court's Orders of January 6 and 11, 1993. The Court held a hearing on this matter on May 17, 1993.

 After careful consideration of the parties' submissions, the arguments of counsel, the record in the case and the underlying law, the Court finds that the Defendants are in contempt of this Court's Orders of January 6 and 11, 1993, because they have failed to promulgate new, appropriate, and proper guidelines for the preservation of electronic federal records under the Federal Records Act and because the Defendants have damaged some of the backup tapes which store the electronic federal records that this Court has ordered to be preserved. The following shall constitute this Court's findings of fact and conclusions of law.

 The Plaintiffs brought this suit alleging that the Executive Office of the President ("EOP"), the National Security Council ("NSC"), and the Archivist of the United States, *fn1" inter alia, were violating the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107, and 3301-3324, and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. More specifically, the Plaintiffs alleged that the recordkeeping practices of the Defendant federal agencies violated the FRA and were arbitrary and capricious under the APA. Furthermore, the Plaintiffs alleged that the Archivist of the United States failed to fulfill his statutory duties under the FRA. *fn2"

 On January 6 and 11, 1993, *fn3" this Court granted the Plaintiff Summary Judgment as to Counts II and III of their Third Amended Complaint and held, inter alia, that the guidelines issued by and at the direction of the Defendant Agencies were arbitrary and capricious and contrary to law because, inter alia, they permitted the destruction of records contrary to the FRA. In its January 6 and 11, 1993 Orders, the Court granted the Plaintiffs declaratory and injunctive relief and required the Defendants to take all necessary steps to preserve, without erasure, all electronic federal records generated by the Defendant Agencies pursuant to the Orders of this Court, and the stipulations and representations of the parties. Armstrong v. Executive Office of the President, 810 F. Supp. 335 (D.D.C. 1993).

 The question before the Court is whether the Defendants have taken appropriate and proper action to comply with the Orders of this Court. The Court finds that the Defendants have failed to promulgate new guidelines under the FRA to replace those struck down over four months ago by this Court. Furthermore, the Court finds that the Defendants have damaged the backup tapes which stores electronic federal records that this Court has ordered to be preserved for the duration of this lawsuit. Thus, the Defendants have violated the spirit and letter of this Court's Orders pursuant to the FRA and the APA that require them to preserve the valuable historical information that is stored on these backup tapes.

 III. THIS COURT HAS JURISDICTION IN THIS CASE TO ISSUE AN ORDER OF CONTEMPT TO ENFORCE ITS ORDERS.

 It is an established principle of law that once a court issues an injunction, those persons subject to it must obey the terms of the Order as long as the injunction remains in effect. See SEC v. Diversified Growth Corp., 595 F. Supp. 1159, 1170 (D.D.C. 1984) (it is within the court's civil contempt power to coerce obedience to a lawful Order). A court has the inherent power to enforce compliance of an injunction through civil contempt. Spallone v. United States, 493 U.S. 265, 276, 107 L. Ed. 2d 644, 110 S. Ct. 625 (1990); Shillitani v. United States, 384 U.S. 364, 370, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966). Where an injunction imposes a "duty to obey specified provisions of [a] statute," failure to abide by the injunction constitutes contempt. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191-92, 93 L. Ed. 599, 69 S. Ct. 497 (1949).

 Civil contempt is a remedial sanction used to obtain compliance with a Court Order or to compensate for damage sustained as a result of noncompliance. NLRB v. Blevins Popcorn, Co., 212 U.S. App. D.C. 289, 659 F.2d 1173, 1184 (D.C. Cir. 1981). A civil contempt proceeding is a three stage process: 1) a court must issue an Order directing a party to take or not take certain action; 2) following disobedience of that Order, the court must issue a conditional Order finding the recalcitrant party in contempt and threatening to impose a specified penalty unless the recalcitrant party complies with prescribed conditions set forth in a "purgation Order;" and 3) execution of the threatened penalty if the conditions are not fulfilled. NLRB v. Blevins Popcorn, Co., 212 U.S. App. D.C. 289, 659 F.2d 1173 (D.C. Cir. 1981). In a proceeding for civil contempt, the moving party has the burden of proving by clear and convincing evidence that the alleged contemptor has violated the court's Order. Id. at 1183.

 In requesting an Order of contempt, the Plaintiffs have made several specific allegations regarding the Defendants' violations of this Court's Orders. The Court shall address each of these allegations separately.

 IV. THE DEFENDANTS ARE IN CIVIL CONTEMPT FOR FAILING TO PROMULGATE NEW REGULATIONS FOR THE PRESERVATION OF ELECTRONIC FEDERAL RECORDS.

 The Plaintiffs allege that the Defendants have not implemented proper procedures to identify and preserve electronic federal records on their electronic communications systems. The Court agrees with the Plaintiffs and finds that the Defendants have failed to comply with this Court's Orders. More specifically, the Court finds that the Defendants have not substantially complied with this Court's Orders because they have failed to issue appropriate and proper new guidelines for the preservation of electronic federal records to replace those struck down by this Court.

 A. THE COURT'S OPINIONS AND ORDERS IN THIS CASE, AS WELL AS THE DEFENDANTS' OWN CORRESPONDENCE, CLEARLY SHOW THAT THE DEFENDANTS ARE REQUIRED TO PROMULGATE NEW GUIDELINES FOR THE PRESERVATION OF ELECTRONIC FEDERAL RECORDS.

 The Defendants have been on notice since the beginning of this lawsuit in 1989, some four years ago, that they might be obligated to preserve materials on their electronic communications systems pursuant to the FRA, and have been aware since then that they might be required to develop new and proper regulations in that regard. In addition, on January 6 and 11, 1993, this Court specifically held that:

 
the guidelines issued by and at the direction of the Defendant agencies are inadequate and not reasonable and are arbitrary and capricious and contrary to law in that they permit the destruction of records contrary to the Federal Records Act.

 Armstrong v. Executive Office of the President, 810 F. Supp. 335, 350 (D.D.C. 1993). By striking down the Defendants' guidelines as inadequate and ordering the preservation of all electronic records, the Court has made it clear that the Defendants are required, under the FRA, to promulgate appropriate and proper new guidelines.

 Moreover, the Defendants requested a stay of this Court's Orders pending appeal, which was denied. Armstrong v. Executive Office of the President, No. 89-142, slip op. (D.D.C. January 14, 1993) (Order denying the Defendants' Motion for a Stay Pending Appeal). Therefore, the Defendants are still bound by this Court's Orders of January 6 and 11, 1993. In denying the Motion for a Stay, this Court was careful to point out that the Defendants must not delete materials on their electronic communication systems "until the Archivist and the Defendant agencies develop proper guidelines so as to comply with the law." Id. slip op. at 3.

 In addition, the Defendants' own correspondence and submissions to this Court confirm that they are aware of their responsibility to promulgate new guidelines. For example, James W. Moore, the Assistant Archivist for Records Administration, wrote that:

 
the Court's orders in the Armstrong case contemplate that, while interim guidance on electronic records is in place, components of the Executive Office of the President will work with the National Archives and Records Administration to develop further guidance in conformance with the requirements of the court's order.

 Letter from James W. Moore, dated May 7, 1993, Exhibit 22A, Defendants' Supplemental Exhibits, filed on May 12, 1993.

 However, the Defendants claim that they had in place the means to comply with this Court's Orders before the Orders were issued because they had been saving onto backup tapes all electronic communications that might contain federal records. The Defendants claim that by preserving all the electronic communications material on tape, they are preserving the status quo in this action along with all of the Plaintiffs' rights to this material and thus satisfying this Court's Orders. However, such a claim is misplaced. It ignores the fact that the Defendants are required by this Court's Orders to promulgate new guidelines for the preservation of electronic computer records.

 B. THE RECORDKEEPING INSTRUCTIONS ISSUED BY THE DEFENDANTS DO NOT FULFILL THE REQUIREMENTS OF THIS COURT'S ORDER.

 Once a predicate for contempt has been established, a court must consider whether a party can be held in civil contempt in light of the evidence before it and any mitigating factors. NAACP, Jefferson County Branch v. Brock, 619 F. Supp. 846, 849 (D.D.C. 1985). A violation need not be willful or intentional because the intent of the party is irrelevant in a civil contempt proceeding. NLRB v. Blevins Popcorn Co., 212 U.S. App. D.C. 289, 659 F.2d 1173, 1184 (D.C. Cir. 1981). This Circuit has considered good faith compliance efforts or a party's inability to comply with a court's Orders as defenses which call for mitigation of contempt sanctions. See NAACP, Jefferson County Branch v. Brock, 619 F. Supp. 846 (D.D.C. 1985).

 The Defendants contend they have demonstrated "substantial compliance with the orders of this Court" by promulgating some new instructions regarding the management and preservation of electronic federal records. Defendants' Proposed Findings of Fact and Conclusions of Law, filed May 12, 1993, at 27-28, 35. They also contend that they are not in contempt because "no clear deadlines were imposed by the Court for compliance." Defendants' Memorandum in Opposition to the Plaintiffs' Motions, filed April 19, 1993, at 59.

 The Court does not agree. The three new sets of instructions to which the Defendants refer do not support their claim that they have "substantially" complied with this Court's Orders. None of these instructions were issued to the staff at the Defendant agencies. *fn5" Moreover, the Court is particularly skeptical of the Defendants' efforts to comply because the three sets of recordkeeping instructions referred to were all issued by the Defendants after the Plaintiffs requested that the Defendants be ...


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