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AMERICAN HISTORICAL ASSN. v. PETERSON

February 25, 1995

AMERICAN HISTORICAL ASSOCIATION, et al., Plaintiffs,
v.
TRUDY PETERSON, in her official capacity as Acting Archivist of the United States, and GEORGE BUSH, Defendants.



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

 UNITED STATES DISTRICT JUDGE

 TABLE OF CONTENTS

 INTRODUCTION

 BACKGROUND

 
A. The Bush-Wilson Agreement
 
B. The Presidential Records Act

 DISCUSSION

 I. THE COURT FINDS THAT THIS ACTION IS NEITHER TECHNICALLY MOOT NOR SUBJECT TO DISMISSAL ON PRUDENTIAL GROUNDS

 
A. This Action is Not Moot Because the Bush-Wilson Agreement Remains in Place and the Correspondence Proffered by the Government Does Nothing to Alter the Agreement
 
B. The Doctrine of Prudential Mootness Does Not Apply to the Instant Suit

 II. THE COURT FINDS WITHOUT MERIT THE DEFENDANTS' ARGUMENTS AGAINST JUDICIAL REVIEW

 
A. The Court of Appeals' Decisions in Armstrong I and Armstrong II Do Not End the Inquiry as to Whether Judicial Review of the Bush-Wilson Agreement is Available
 
B. The Archivist's Compliance with the PRA is at Issue Here and is Subject to Judicial Review

 III. THE BUSH-WILSON AGREEMENT IS UNLAWFUL

 
A. The Bush-Wilson Agreement Violates the Presidential Records Act
 
B. The Former Archivist's Decision to Enter into the Agreement Notwithstanding the PRA was Arbitrary, Capricious, an Abuce of Discretion, and Contrary to Law
 
C. The Bush-Wilson Agreement Conflicts with Article II of the Constitution

 CONCLUSION

 EXHIBIT A: "Memorandum of Agreement Between National Archives and Records and Administration, and National Security Council, and Office of Administration and George Bush" (Jan. 20, 1993)

 EXHIBIT B: Letter from Trudy Huskamp Peterson, Acting Archivist of the United States, to James W. Cicconi (Jan. 27, 1995)

 EXHIBIT C: Letter from James W. Cicconi to Trudy Huskamp Peterson, Acting Archivist of the United States (Jan. 30, 1995)

 INTRODUCTION

 This matter initially came before the Court on the Plaintiffs' Motion for a Preliminary Injunction. By Order entered February 7, 1995, the Court granted, without objection, the Plaintiffs' request that said Motion be consolidated with a hearing on the merits, Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. Before the Court at this time are the Plaintiffs' Motion for Summary Judgment and the Defendants' *fn1" Motion to Dismiss or, in the alternative, Motion for Summary Judgment, along with the respective Oppositions and Replies thereto. A hearing on the same was held on February 22, 1995. Upon careful consideration of the pleadings, the applicable law, and the entire record herein, the Court determines that the Plaintiffs' Motion for Summary Judgment shall be granted, and the Defendants' dispositive Motion shall be denied.

 The question presented by the instant suit is whether the so-called "Bush-Wilson Agreement," which provides that certain electronic Presidential records be treated as former President George Bush's personal records subject to his control, is consistent with the Presidential Records Act and the Constitution.

 In particular, the Plaintiffs ask the Court to declare null and void a Memorandum of Agreement between former President Bush and former Archivist Don W. Wilson ("Bush-Wilson Agreement" or "Agreement"), signed on the day former President Bush left office, which purports to give former President Bush exclusive control over electronic records of the Executive Office of the President created during former President Bush's term in office. The Plaintiffs further ask the Court to enjoin the Acting Archivist from implementing the Bush-Wilson Agreement. As grounds therefor, the Plaintiffs assert that the Agreement violates the Presidential Records Act ("PRA"), 44 U.S.C. §§ 2201-07, as well as Article II of the Constitution, and that the decision by the Archivist to enter into that Agreement was arbitrary, capricious, an abuse of discretion, and contrary to law under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.

 In response, the Defendants contend that the Court lacks jurisdiction over the Plaintiffs' request for injunctive and declaratory relief because each component of the Plaintiffs' request has been mooted by virtue of certain correspondence proffered by the government. The Defendants further assert that, even if this action were not technically moot, it should be dismissed under the doctrine of prudential mootness. Finally, the Defendants argue that judicial review of the former President's decision to enter into the Bush-Wilson Agreement is unavailable, and that the Plaintiffs cannot obtain relief under Article II of the Constitution. The Defendants do not address, however, the merits of the Plaintiffs' challenge to the Agreement itself under the PRA, or their challenge to the former Archivist's actions under the APA.

 The Court finds that the case is not moot, and that the former Archivist's actions with respect to the Agreement are subject to judicial review. On the merits, the Court further finds that the Bush-Wilson Agreement cannot be sustained under the PRA and Article II of the Constitution, and that the former Archivist's decision to enter into the Agreement, notwithstanding the provisions of the PRA, was arbitrary, capricious, an abuse of discretion, and contrary to law. The Court shall therefore issue an injunction prohibiting the Acting Archivist from implementing the Bush-Wilson Agreement, and shall direct her to process the Presidential records purportedly governed by the Agreement in accordance with the PRA.

 BACKGROUND

 The Plaintiffs *fn2" are historians, researchers, librarians, and journalists who seek in this action "to enforce the central mandate of the [PRA], namely, that Presidential records shall no longer be treated as personal property of the President but as records of the United States, and that they shall be made available to the public under the standards established by law." Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction, at 1.

 In a related case, Armstrong v. Executive Office of the President, 810 F. Supp. 335 (D.D.C. 1993), aff'd in part and reversed in part, 1 F.3d 1274, 303 U.S. App. D.C. 107 (D.C. Cir. 1993), this Court held that electronic records created by the "agency" components of the Executive Office of the President are subject to the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107 & 3301-3324, and enjoined the Archivist to take all necessary steps to preserve the electronic Federal records generated by the executive agencies on these systems. 810 F. Supp. at 350. This injunction, however, did not apply to Presidential records that are subject to the PRA rather than the FRA; *fn3" such Presidential records are at issue in the instant litigation.

 A. The Bush-Wilson Agreement

 During the administration of former President George Bush, components of the Executive Office of the President ("EOP") used office automation systems to create, store, and retrieve information in electronic format. *fn4" Between January 19, 1993, and January 28, 1993, approximately 5,000 magnetic tapes, more than 140 disk drives, and one floppy disk that contain memoranda, documents, scheduling calendars and other information recorded in electronic format by EOP staff during the Bush Administration were transferred to the physical custody of the Archivist. The materials transferred include "Presidential records," as that term is defined in 44 U.S.C. § 2201(2). The Presidential records on the tapes were generated by individuals in the White House Office and the Office of Policy Development, as well as in other offices and components of the EOP which solely advise the President. Over 300 individuals from the White House Office and the Office of Policy Development used the EOP's automated office systems.

 On January 19, 1993, the last day of the Bush Administration, the Archivist of the United States signed a "Memorandum of Agreement" ("Bush-Wilson Agreement") with then-President George Bush, then-Executive Secretary of the National Security Counsel ("NSC") William F. Sittman, and then-Acting Director of the Office of Administration ("OA") Phillip D. Larsen, concerning the disposition of disks and backup tapes containing information from the EOP office automation systems that were transferred to the Archivist between January 19 and January 28, 1993. The Bush-Wilson Agreement is attached hereto as Exhibit A and made a part hereof. The electronic materials subject to the Agreement are identified in three Schedules, Schedules A, B, and C. *fn5" Exh. A at 6-8.

 According to the Defendants, the injunction issued by this Court in the Armstrong case, although limited to exclude Presidential and non-record material, made it necessary for the former President and the Archivist to develop independent provisions for the handling of material that was physically attached to Protected federal record material, but not otherwise subject to the injunction. *fn6" The Defendants assert that the Armstrong injunction had the practical effect of preventing disposition of Presidential records on the tapes otherwise subject to the injunction, and that the Memorandum Agreement was drafted and executed in order to allow former President Bush to exercise his authority to create, manage and dispose of Presidential records at the close of the Bush Administration. Id. at 8. At the hearing held on February 22, 1995, however, counsel for the Defendants represented that the purpose of the Agreement was to preserve former President Bush's rights to his "personal" records after he left office. Transcript of Feb. 22, 1995 hearing at 5-6 (hereinafter "Tr.")

 Section 1.5 of the Bush-Wilson Agreement provides that "George Bush shall retain exclusive legal control over all Presidential information, and all derivative information in whatever form, contained on the materials" transferred to the Archivist. Section VI.1 of the Agreement defines "Presidential information" as

 
information contained on the materials, that was created or received by the President, any individual or unit in the Executive Office of the President (including, but not limited to, all staff of the White House Office and the Office of Policy Development) whose sole function is to advise and assist the President, and/or the NSC staff in their functions as advisors and assistants to the President.

 All "Presidential records" on the tapes and disks, as defined by § 2201(2) of the PRA, fall within this definition of "Presidential information (see below). In addition, Section III.3 of the Agreement provides that "Presidential information on the materials shall be disposed of in accordance with the instructions of George Bush or his designee."

 Under Section II.4.a of the Bush-Wilson Agreement, before providing access to any non-Presidential information on the transferred materials to the NSC, OA or any other "third party," the National Archives and Records Administration ("NARA") must segregate Presidential and non-Presidential information pursuant to procedures approved in advance by other parties, and

 These requirements do not apply in the case of a subpoena or court order requiring access to Presidential information, to the extent precluded by court order, to requests for information by an independent counsel, and whenever the parties agree to waive the requirements. Exh. A. at 3, II.4.c.

 Schedule D of the Agreement is a letter dated January 19, 1993 from Independent Counsel Joseph E. diGenova to C. Boyden Gray, Counsel to the President, memorializing an agreement concerning the disposition of certain materials responsive to a grand jury subpoena served on The White House on January 15, 1993. As these materials are otherwise encompassed by the Bush-Wilson Agreement, Section 1.7 of the Agreement provides that, at the conclusion of the investigation by the Independent Counsel Joseph diGenova, the materials in Schedule C, namely, hard disks used by personnel of the White House Office and Office of Policy Development, "shall be transferred to the NARA as personal records of George Bush." Transfer of the hard drives may occur as early as March 1, 1995. Defendants' Exhibit C, Declaration of Michael Zeldin P 2.

 By letter dated January 27, 1995 to Mr. James W. Cicconi, Acting Archivist Trudy Peterson stated her "understanding of President Bush's intention that the National Archives treat the[ materials described in Schedules A, B and C of the Bush-Wilson Agreement] in accordance with the provisions of the Presidential Records Act of 1978, 44 U.S.C. §§ 2201-2207." This letter is attached hereto as Exhibit B and made a part hereof.

 In a responsive letter dated January 30, 1995, Mr. Cicconi, who identifies himself as "President Bush's designated representative under the Presidential Records Act," states that his letter "constitutes agreement" that the proposed procedures outlined in the Archivist's letter for the review and processing of materials at issue "may be implemented by the National Archives and Records Administration . . . consistent with decisions in Armstrong v. Executive Office of the President and with the Presidential Records Act." This letter is attached hereto as Exhibit C and made a part hereof.

 B. The Presidential Records Act

 "History, custom, and usage indicate unequivocally that, prior to [the enactment of the Presidential Records Act], Presidents exercised complete dominion and control over their Presidential papers." Nixon v. United States, 978 F.2d 1269, 1277, 298 U.S. App. D.C. 249 (D.C. Cir. 1992). While some Presidents ensured that such papers would pass by descent, others made outright gifts of their papers, often imposing personal restrictions on public access, and a number of Presidents destroyed their records. Id. at 1277-80.

 "In 1978, Congress prospectively abolished presidential ownership of White House materials with the Presidential Records Act, 44 U.S.C. § 2201 et seq. " Id. at 1277 n.19. As the House Report on the PRA states:

 
The legislation would terminate the tradition of private ownership of Presidential papers and the reliance on volunteerism to determine the fate of their disposition. Instead, the preservation of the historical record of the future Presidencies would be assured and public access to the materials would be consistent under standards fixed in law.

 H.R. No. 95-1487, 95th Cong., 2d Sess. § 2 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5733.

 Following his resignation in August 9, 1974, former President Nixon and the Administrator for General Services, Arthur Sampson, entered into an Agreement ("Nixon-Sampson Agreement") whereby "Mr. Nixon agreed to deposit all of his presidential papers with [Mr. Sampson,] for a temporary period, after which certain materials would be donated permanently to the United States." Nixon, 978 F.2d at 1271 (footnote omitted). While the integrity of the materials was guaranteed, "Mr. Nixon retained title to his papers and the right to exclude others from viewing or using the materials . . . ." Id. In 1978, Congress enacted the PRA in part to ban future accords like the Nixon-Sampson Agreement. See H.R. Rep. No. 95-1487, 95th Cong., 2d Sess. §§ 5, 8 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5736, 5739. Accordingly, the PRA declares that:

 
The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.

 44 U.S.C. § 2202.

 The statute directs the President to "take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records . . . ." Id. § 2203.

 The PRA defines "Presidential records" broadly:

 
The term "Presidential records" means documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and 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.

 Id. § 2201(2). The definition of "documentary materials" specifically includes any "electronic or mechanical recordations." Id. § 2201(1). The legislative history explains that the scope of the term "Presidential records" "is very broad since a great number of what might ordinarily be construed as one's private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties." H.R. No. 95-1487, 95th Cong., 2d Sess. §§ 11-12 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5742-43.

 The Act further provides that "personal records," among other items, are exempt from the definition of "Presidential records," but defines the former term narrowly:

 
The term "personal records" means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

 Id. § 2201(3). Indeed, the legislative history indicates that "an examination of the nature of political activities in which a President becomes involved shows that few are truly private and unrelated to the performance of his duties." H.R. No. 95-1487, 95th Cong., 2d Sess. § 12 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5743.

 The PRA regulates the disposal of Presidential records, both during and after the President's term of office. "During his term of office, the President may dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value." Id. § 2203(c). However, the President must first obtain "the views, in writing, of the Archivist concerning the proposed disposal of such Presidential records." Id. § 2203(c)(1). "If the Archivist thinks it advisable, she may notify Congress of the President's intent to dispose of the records; and if the Archivist notifies Congress, the President must submit the disposal schedules to the appropriate congressional committees and wait sixty days before destroying the records." Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 286 (D.C. Cir. 1991) ("Armstrong I") (citing 44 U.S.C. §§ 2203(c), (d)).

 "Somewhat different disposal provisions apply after the President has left office." Id. The statute provides that, at the end of the President's term, the Archivist "shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President." Id. § 2203(f)(1) (emphasis added). The Archivist has "an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of the Act." Id. After giving notice in the Federal Register, the Archivist may dispose of the records that have "insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation." Id. § 2203(f)(3). "Publication of such notice shall constitute a final agency action" for purposes of judicial review under the APA. Id.

 The PRA also sets forth the precise parameters of the President's authority to impose restrictions on access to Presidential records following his term in office. Most Presidential records become available to the public under the Freedom of Information Act, 5 U.S.C. § 522 ("FOIA"), no later than five years after the Archivist obtains custody. 44 U.S.C. § 2204(b), (c). Before leaving office, however, the President may impose additional restrictions for a specified period, not to exceed twelve years, on particular categories of documents. Such categories include, for example, documents that are classified in the interest of national defense or foreign policy, documents that relate to appointments to Federal office, or documents that relate to confidential communications between the President and his advisors. Id. § 2204(a)(1). However, "these are the only categories of records of his administration to which the outgoing President may restrict access. He is given no authority to impose additional restraints beyond those itemized in subsection [2204](a)." H.R. No. 95-1487, 95th Cong., 2d Sess. § 14, (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5745. Moreover, it is the Archivist, not the President, who makes the final "determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted" under the restrictive provisions available to the outgoing President. 44 U.S.C. § 2204(b)(3).

 DISCUSSION

 I. THE COURT FINDS THAT THIS ACTION IS NEITHER TECHNICALLY MOOT NOR SUBJECT TO DISMISSAL ON PRUDENTIAL GROUNDS

 
A. This Action is Not Moot Because the Bush-Wilson Agreement Remains in Place and the Correspondence Proffered by the Government Does Nothing to Alter the Agreement

 The Defendants urge the Court to dismiss this case as moot, asserting that correspondence exchanged in January of this year, attached hereto as Exhibits B and C, "evidence[s] agreement between the Archivist and President George Bush that all processing of materials identified in Schedules A, 3 and C of the January 1993 Memorandum Agreement will be in accordance with the provisions of the Presidential Records Act (sic). . . . " *fn7" The Defendants contend that, in light of this "agreement," "there is no longer a 'live controversy' and the Court lacks subject matter jurisdiction to render what would be an advisory opinion on either the injunctive or the declaratory relief sought." Id. at 2.

 The Bush-Wilson Agreement, however, remains intact. The Court therefore cannot agree with the Defendants' suggestion that the letters by the Archivist and the so-called designee of former President Bush indicate "unequivocally and expressly, that the Presidential Records Act governs all processing of the non-federal materials identified in the Memorandum Agreement." Id. at 5 (emphasis added). As the Plaintiffs suggest, it is precisely because the "agreement" to process the records at issue in accordance with the PRA is not unequivocal or, under the applicable standard, irrevocable, that the Court cannot declare this action moot. At bottom, the Archivist and former President Bush's designee have merely provided a series of letters evidencing an intent to process the records at issue pursuant to the PRA. Thus, the Defendants cannot seriously be heard to argue that such letters unequivocally end this case or that, by virtue of the letters, the Archivist is bound to process the records under the PRA, notwithstanding any future direction otherwise; indeed, she has refused to enter into a consent decree to that effect. As what the Plaintiffs seek is just such a binding judgment or agreement, the Court finds that a case or controversy does exist here.

 The applicable law strongly supports the Court's conclusion that this action is not moot. The doctrine of mootness is premised upon the motion that "[a] federal court is constitutionally forbidden to render advisory opinions or 'to decide questions that cannot affect the rights of litigants in the case before them.'" Better Government Association v. Dep't of State, 780 F.2d 86, 90-91, 250 U.S. App. D.C. 424 (D.C. Cir. 1986) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971)). In Los Angeles v. Davis, 440 U.S. 625, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979), the Supreme Court established a two-pronged test for determining whether a case is moot: "a dispute is not moot unless (1) there is no reasonable expectation that the alleged violation will recur and (2) 'interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'" Reeve Aleutian Airways, Inc. v. United States, 281 U.S. App. D.C. 306, 889 F.2d 1139, 1142-43 (D.C. Cir. 1989) (quoting Davis, 440 U.S. at 631)).

 In this case, the Court finds that, because the Bush-Wilson Agreement remains in place, neither prong of the Davis test is met. First, even if the Archivist processes the documents under the PRA, as the correspondence suggests she will do, former President Bush still purportedly retains "exclusive legal control" over the materials under the Agreement, notwithstanding the provisions of the PRA. In fact, by affording the Acting Archivist permission, through his so-called designee, to implement NARA's "proposals" concerning review and processing of the records under the PRA, former President Bush confirmed his purportedly "exclusive legal control" over the Archivist's treatment of the records under the Agreement. In view of the Plaintiffs' allegation that this represents a continuing violation of the law, the Court cannot find that this matter is moot.

 Moreover, there is no assurance that the Agreement will not give rise to further alleged violations of the PRA with respect to particular records. The Agreement takes the disposition of the Presidential records at issue out of the explicit confines of the PRA and places it into the hands of former President George Bush, now a private citizen. Although former President Bush's "designee" has represented his agreement to sanction the Archivist's processing of these Presidential records pursuant to the mandates of the PRA, nothing in the correspondence precludes former President Bush from changing his mind and exercising his purportedly "exclusive legal control" in a manner inconsistent with the PRA, thereby leaving the door open for violations of that statute with respect to particular records. Indeed, the Defendants acknowledge as much when they state, in response to the Plaintiffs' argument that the Archivist and the former President "can later undo" what was done in the 1995 correspondence, that "the fact that all agreements can later be modified by the parties that execute them does not render those agreements meaningless." Defendants' Reply, at 12. Because this fact does, however, render the Plaintiffs susceptible to injury, this case is not moot.

 Moreover, courts have repeatedly held that a defendant's defense of challenged official conduct "makes it more likely that [the plaintiff] will be subject to the procedures" in the future. Reeve, 889 F.2d at 1143. In City of New Haven v. United States, 258 U.S. App. D.C. 59, 809 F.2d 900, 904 (D.C. Cir. 1987), the Court of Appeals held that, even where the plaintiffs' challenge to specific applications of a statute had been rendered moot, their facial challenge to the statute was not moot because the "Executive Branch had not disavowed reliance on the challenged statute," and the allegedly unlawful statute could be relied upon by officials in the future. "When a complaint identifies official conduct as wrongful and the legality of that conduct is vigorously asserted by the officers in question, the complainant may justifiably project repetition, albeit in a different setting, and involving different official actors." Doe v. Harris, 225 U.S. App. D.C. 27, 696 F.2d 109, 113 (D.C. Cir. 1982).

 Here, the Defendants have neither repudiated the Bush-Wilson Agreement nor conceded the Plaintiffs' claim that the Agreement is unlawful. Indeed, the Defendants characterize the Agreement as memorializing former President Bush's " right to guarantee a later review of presidential materials . . . ." Defendants' Motion, at 18 (emphasis added). Nowhere, however, does the PRA guarantee a former President any right to control Presidential records after leaving office.

 Moreover, at oral argument on February 22, 1995, counsel for the Defendants stated that the purpose of the "unartfully" drafted Agreement was not to assert control over Presidential records, but was to preserve former President Bush's right to his personal records. Tr. at 14. This statement flatly contradicts the position set forth in the Defendants' papers that the Agreement preserved former President Bush's right to guarantee later review of Presidential records. In addition, the claim that the Agreement seeks only to preserve personal records is belied by the terms of the Agreement itself, under which "Presidential information" is broadly defined as

 
information, contained on the materials, that was created or received by the President, any individual or unit in the Executive Office of the President, (including, but not limited to, all staff of the White House Office and the Office of Policy Development) whose sole function is to advise and assist the President, and/or the NSC staff in their functions as advisers and assistants to the President.

 Exh. A at 5, VI.1. Under no stretch of the imagination could one seriously argue that this definition was merely "unartfully" drafted but intended to cover only personal records of former President George Bush. Tr. at 14. Counsel for the Defendants asserted that the "unartful" language stems from the fact that in 1993, when the Agreement was drafted, the government did not have the benefit of the most recent Armstrong decisions before it. Tr. at 6. The PRA itself, however, has been in existence since 1978, and defines with clarity the terms "Presidential records" and "personal records," the latter including only those records of a "purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." 44 U.S.C. § 2201(3). To say that the Bush-Wilson Agreement was designed to preserve former President Bush's right to this limited category of records, when it covers on its face thousands of tapes, over 140 disk drives, and a floppy disk containing information recorded by various White House, Office of Policy Development, and other EOP staff throughout his Administration, is disingenuous at best. Thus, the Court finds that the Defendants' failure to disavow reliance on the Agreement, as written to cover "Presidential information," renders it "hardly apparent" that the rights of the parties and the public are not still effected by it. Doe, 696 F.2d at 112.

 Second, and for similar reasons, the Defendants have failed to demonstrate that the effects of the alleged violation have been completely and irrevocably eradicated. Indeed, they cannot, as the Agreement has not been abrogated, rescinded, nullified, or Superseded. The Supreme Court has repeatedly found it a "'well settled'" rule that 'a defendant's voluntary cessation of the challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 124 L. Ed. 2d 586, 113 S. Ct. 2297, 2300 (1993) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982)). See also United States v. W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894 (1953); City of New York v. Baker, 278 U.S. App. D.C. 405, 878 F.2d 507, 511 (D.C. Cir. 1989), reh'g denied, 281 U.S. App. D.C. 121, 888 F.2d 134 (D.C. Cir. 1989). Thus, in City of Jacksonville, the Supreme Court found that repeal of a challenged ordinance did not render the case moot because the repeal "would not preclude [the defendant] from reenacting precisely the same provision if the District Court's judgment [finding the provision unconstitutional] were vacated." Id.

 The Defendants rely heavily on Committee in Solidarity with the People of El Salvador v. Sessions, 289 U.S. App. D.C. 149, 929 F.2d 742 (D.C. Cir. 1991) ("CISPES") to support their contention that the instant case is moot. In CISPES, the plaintiffs sought an injunction requiring the FBI to transfer files pertaining to CISPES to the National Archives. The Court of Appeals held that the FBI's voluntary agreement to transfer the files rendered the case moot, as the court "would have granted no further relief if plaintiffs had prevailed on the merits." Id. at 744. The plaintiffs also sought a declaratory judgment, but the Court held that the plaintiffs' challenge to the constitutionality of the FBI investigation alone could not satisfy the case or controversy requirement.

 CISPES, however, is readily distinguishable from the instant case because, with the Bush-Wilson Agreement intact, the Plaintiffs have not received the relief they seek through the correspondence submitted by the government. Unlike in CISPES, the purpose of the declaratory judgment sought here is to nullify an Agreement which purports to place the Archivist under the direction and control of former President Bush, notwithstanding the mandate of the provisions of the PRA governing disposition of Presidential records following a term in office. In spite of the 1995 correspondence, the challenged Agreement remains in place, so the case is not moot. Cf. Preiser v. Newkirk, 422 U.S. 395, 402, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975) (prisoner's constitutional challenge to transfer was mooted when prisoner was returned to original facility)

 Further, in CISPES, the FBI investigation was terminated with the Director testifying that "the investigation should never have been initiated." 929 F.2d at 743. Here, the government maintains that the Agreement comports with the law, thereby subjecting the Plaintiffs to potential future harm if the Agreement is indeed unlawful. Accordingly, the Court finds that the challenge at bar is not subject to dismissal on mootness grounds.

 Clarke v. United States, 286 U.S. App. D.C. 256, 915 F.2d 699 (D.C. Cir. 1990), which the Defendants cite in their Reply brief as compelling authority to the contrary, does not lead to the opposite conclusion. In that case, the district court had issued a declaratory judgment that a congressional act that conditioned funding on the District of Columbia's enactment of certain legislation violated the plaintiffs' First Amendment rights. Upon the expiration of the funding statute, the government filed a motion suggesting that the case was moot and urging that this Circuit's panel decision upholding the district court's determination be vacated. On appeal, the plaintiffs argued that the matter was not moot because vacating the district court's judgment would leave open the Possibility of prosecution under a statute forbidding the expending of government funds without the authorization of Congress. The Court of Appeals, en banc, held that the case was moot and that the voluntary cessation exception did not apply.

 Critical to the Court's finding that the case was not moot was the government's representation at oral argument that, not only would there be no prosecution, but that "the existence of a judgment during that time would be a complete and adequate defense to any prosecution." Id. at 701 (internal quotation marks omitted). The Court observed that "a federal judgment, later reversed or found erroneous, is a defense to a federal Prosecution for acts committed while the judgment was in effect." Id. at 702. Thus, in Clarke, the district court judgment had the effect of law protecting the plaintiffs from the behavior the plaintiffs feared. Because there is no such judgment here, Clarke does not, as the Defendants assert, "control[] this case four square . . . ." Tr. at 8.

 Moreover, the Court of Appeals emphasized that the voluntary cessation exception did not apply in Clarke because "non-reenactment of a one-time condition that expired of its own terms [before the dispute arose] cannot be viewed as cessation of conduct." Id. at 705. Here, in contrast, the 1995 correspondence was executed after the Plaintiffs filed the Complaint and in direct response to this litigation challenging the Bush-Wilson Agreement. See Exh. 3 at 1 ("questions have been raised in American Historical Association v. Peterson. . . regarding the Archivist's handling of certain materials"). Accordingly, the Court finds that Clarke is not dispositive of the mootness question here, and that the voluntary cessation exception does apply.

 B. The Doctrine of Prudential Mootness Does

 Not Apply to the Instant Suit

 The Defendants further argue that dismissal of this case is warranted under the doctrine of prudential mootness, "a facet of equity." Penthouse International, Ltd. v. Meese, 291 U.S. App. D.C. 183, 939 F.2d 1011, 1019 (D.C. Cir. 1991), cert. denied, 503 U.S. 950, 112 S. Ct. 1513, 117 L. Ed. 2d 650 (1992). This doctrine, which involves "not the power to grant relief but the court's discretion in the exercise of that power," applies when a given controversy, though "not actually moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." Chamber of Commerce v. United States Dep't of Energy, 200 U.S. App. D.C. 236, 627 F.2d 289, 291 (D.C. Cir. 1981). The Defendants assert that, even if the case were technically alive, the 1995 correspondence confirming former President Bush's intention that the records be treated under the PRA renders dismissal appropriate under the more relaxed standard of prudential mootness. The Court disagrees.

 As the Court of Appeals for this Circuit has recognized, the "'attenuation' argument" is persuasive "where the challenged practice had been withdrawn or was undergoing substantial revision, so that the reviewing court could not be certain of the regulation's ultimate form." Reeve, 281 U.S. App. D.C. 306, 889 F.2d 1139, 1144. See also Community for Non-Violence v. Hess, 240 U.S. App. D.C. 321, 745 F.2d 697, 701 (D.C. Cir. 1989). As in Reeve, however, this Court is faced with "no such difficulty here." Reeve, 889 F.2d at 1144. Rather, the Bush-Wilson Agreement was signed over two years ago, and has been neither withdrawn nor revised. Moreover, unlike in the cases the Reeve Court discusses, the Plaintiffs would not necessarily be afforded sufficient opportunity to renew their challenges should an unlawful execution of the Agreement be kept secret from the public, a possibility not foreclosed by the Bush-Wilson Agreement, or if records were improperly destroyed prior to the reinstitution of court proceedings. Cf. Chamber of Commerce, 627 F.2d at 292 ("ample opportunity" to renew complaint); Hess, 745 F.2d at 702 (same). Accordingly, the Court finds that there is no "prudential" justification for declining to assess the lawfulness of the Agreement.

 II. THE COURT FINDS WITHOUT MERIT THE DEFENDANTS' ARGUMENTS AGAINST JUDICIAL REVIEW

 
A. The Court of Appeals' Decisions in Armstrong I and Armstrong II Do Not End the Inquiry as to Whether Judicial Review of the Bush-Wilson Agreement is Available

 The Court of Appeals for this Circuit has held that "the PRA precludes judicial review of the President's record creation and management decisions." Armstrong I, 924 F.2d at 297. Later, however, in Armstrong v. Executive Office of the President, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1293 (D.C. Cir. 1993) ("Armstrong II"), the Court rejected the government's urging that "the court give this language the broadest reading possible, holding in effect that we may not review any guidelines that purport to implement the PRA or deal with asserted Presidential records." Rather, the Court stated that "the Armstrong I opinion does not stand for the unequivocal Proposition that all decisions made pursuant to the PRA are immune from judicial review." Id. (emphasis added).

 In Particular, the Armstrong II Court held that, while "those decisions that involve materials that are truly presidential records are immune from judicial review," Armstrong I did not hold "that the President could designate any material he wishes as presidential records, and thereby exercise 'virtually complete control' over it . . . notwithstanding the fact that the material does not meet the definition of 'Presidential records' under the PRA." Id. at 1293-94 (citations omitted). Thus, the Court found that judicial review of the guidelines outlining what is and what is not a "presidential record" is available. Id. at 1294.

  In the instant case, the Defendants argue that Armstrong I and Armstrong II stand for the proposition that "discretionary Presidential decisions alleged to be in excess of statutory authority are nonreviewable, whether implemented by the President or at his direction." Defendants' Motion, at 14. Accordingly, the Defendants further assert that "President Bush's decision during his Administration *fn10" to retain nominal control over the materials identified in the Memorandum Agreement . . . was a discretionary decision under the PRA," and thus not subject to judicial review. Id. at 15-16.

  While, as further explained below, the Court finds that this matter is subject to judicial review because the Archivist's compliance with the PRA is reviewable, the Court first observes that the Defendants are incorrect in reading Armstrong I and Armstrong II to preclude any review of any aspect of the Bush-Wilson Agreement, such that this action warrants dismissal.

  First, the Defendants argue, in essence, that former President Bush's decision to denominate categories of Presidential records as "personal records" subject to his control following his term in office is not subject to judicial review. Under Armstrong II, however, guidelines "describing which existing records will be treated as presidential records in the first place" are subject to judicial review. Armstrong II, 1 F.3d at 1294. Indeed, the legislative history makes clear that "defining the types of documentary materials falling within the ambit of either 'presidential' or 'personal' records is of primary importance to the act. The definitions of these terms must be both mutually exclusive and all encompassing." H.R. No. 95-1487, 95th Cong., 2d Sess. § 11 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5742 (emphasis added). In the instant case, it cannot be disputed that much, if not all, of the "Presidential information" contained in the records designated by the Bush-Wilson Agreement as "personal records of George Bush" also qualifies as "Presidential records" under the PRA.

  Armstrong II held that guidelines for categorizing Presidential records are subject to judicial review "to ensure that materials that are not subject to the PRA are not treated as Presidential records." Id. Accordingly, in turn, the Court observes that Armstrong II does not necessarily foreclose judicial review of a decision to denominate certain materials "personal records" of a former President. *fn11" Such judicial review may be available to ensure that Presidential records are not disposed of as personal records at the end of an Administration and that, instead, all Presidential records fall subject to the Archivist's "affirmative duty to make such records available to the public." 44 U.S.C. § 2203(f)(1) (emphasis added). Thus, the Court observes that Armstrong I and Armstrong II do not mark the beginning and end of the complicated inquiry regarding judicial review under the PRA, despite the Defendants' suggestion to the contrary.

  Moreover, the materials purportedly covered by Schedules A, 3 and C to the Bush-Wilson Agreement may also contain federal records subject to the Federal Records Act. Indeed, while NSC backup tapes and hard drives are purportedly covered by Schedule A to the Bush-Wilson Agreement, the NSC still has not promulgated adequate guidelines for segregating Presidential records from Federal records, despite the long history of the Armstrong litigation. Such guidelines are subject to judicial review under Armstrong II, and the Agreement purportedly assigning former President Bush "exclusive legal control" over such records cannot shield from the Court's eye the method by which such documents are categorized.

  Second, as the Armstrong I Court noted, the PRA sets forth different provisions for the disposal of Presidential records during a term of office from those governing the disposal of Presidential records after a term of office. Armstrong I, 924 F.2d at 286. While the statute provides that, during a term of office, the President "may dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value," the PRA further provides that, at the end of the President's term, the Archivist "shall assume responsibility for ...


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