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PUBLIC CITIZEN v. CARLIN

April 9, 1998

PUBLIC CITIZEN, et al., Plaintiffs,
v.
JOHN CARLIN, et al., Defendants.



The opinion of the court was delivered by: FRIEDMAN

MEMORANDUM OPINION AND ORDER

 This case is before the Court on plaintiffs' motion for an order to show cause why supplemental relief to enforce the Court's declaratory judgment should not be granted. After considering plaintiffs' motion, defendants' opposition, plaintiffs' reply, the parties' arguments at the hearing held on March 25, 1998, and the parties' supplemental filings, the Court concludes that for the past five months defendants have flagrantly violated the Court's Order of October 22, 1997. Plaintiffs therefore are entitled to "further relief" to enforce the Court's Order.

 I. BACKGROUND

 On August 14, 1995, the Archivist of the United States issued the present version of General Records Schedule ("GRS") 20, which authorized the disposal of certain electronic records under a general schedule. *fn1" Plaintiffs filed this action on December 23, 1996, claiming that the use of a General Records Schedule to authorize the destruction of electronic records without distinguishing valuable electronic records from useless ones was arbitrary and capricious, irrational and contrary to law. After full briefing and argument, the Court agreed with plaintiffs and found that by promulgating GRS-20, the Archivist "exceeded the limits Congress placed on the use of general schedules . . . abdicated to the various departments and agencies of the federal government his statutory responsibility under the Records Disposal Act to insure that records with administrative, legal, research or other value are preserved by federal agencies . . . [and] violated the Records Disposal Act by failing to identify a specified period of time for retention for the records scheduled." See Opinion of October 22, 1997 at 18-19. The Court also found that the government's reading of Section 3303a(d) of the Records Disposal Act was "irrational on its face." Id. at 23. The Court therefore declared GRS-20 "null and void." See Order of October 22, 1997. The Court's language and conclusion could not have been more clear: The Archivist was violating the law in promulgating and implementing GRS-20.

 The government did not immediately appeal the Court's ruling or request that the Court enter a stay of its Order. In fact, the government waited nearly two months, until December 19, 1997, before appealing the Court's decision. Even after the government filed its notice of appeal, it did not seek a stay of this Court's Order pending appeal. The government did not indicate to the Court in any way that it could not comply or was not complying with the Court's Order, and the Court operated on the apparently mistaken assumption that the government was doing so.

 On February 25, 1998, plaintiffs filed a motion for an order to show cause why supplemental relief to enforce the Court's declaratory judgment should not be granted. Plaintiffs claimed that in spite of the Court's October 22, 1997 Order, the government had continued for over four months to rely on GRS-20. The government did not deny that it has continued to rely on GRS-20. Nor did it dispute the fact that the Archivist has issued a bulletin stating that "government agencies may continue to rely upon GRS 20" and has published notices in the Federal Register stating that electronic record disposition practices are "currently authorized under the National Archives and Records Administration's General Records Schedule 20," when he knew there was no such authorization. See Defendant's Opposition, Exh. A (NARA Bulletin No. 98-02); 62 Fed. Reg. 65737-65738 (December 16, 1997); 63 Fed. Reg. 2268 (January 14, 1998).

 Instead, the government claims (1) that it has not violated the Court's Order because the Court issued declaratory relief rather than an injunction; (2) that this Court lacks jurisdiction to order any further relief; and (3) that even if the Court does have jurisdiction, the relief proposed by plaintiffs would overwhelm the government's electronic records systems.

 The Court heard argument on plaintiffs' motion on March 25, 1998. At the close of the hearing, the Court ordered the parties to either jointly or separately submit proposed orders. Plaintiffs submitted a proposed order on March 25, 1998, and the government filed a post-hearing response on April 1, 1998. As part of its filing, the government requested a stay pending appeal in the event that the Court entered plaintiffs' proposed Order. On April 2, 1998, plaintiffs moved to strike defendants' post-hearing memorandum or, in the alternative, to set a schedule for briefing on defendants' request for a stay. Upon consideration of all of the submissions by the parties and the arguments presented at the hearing, the Court concludes that defendants have clearly violated its October 22, 1997 Order, that it will not stay that Order, and that it has jurisdiction to order further relief and will do so.

 II. DISCUSSION

 A. Jurisdiction

 The filing of a notice of appeal divests this Court of jurisdiction to alter, amend or expand a declaratory judgment. See Deering-Milliken, Inc. v. Fed'l Trade Commission, 207 U.S. App. D.C. 384, 647 F.2d 1124, 1128 (D.C. Cir. 1978). The Court retains authority, however, to order "further necessary or proper relief" in order to enforce its declaratory judgment. 28 U.S.C. § 2202; see Securities Industry Assoc. v. Bd. of Governors of the. Federal Reserve System, 628 F. Supp. 1438, 1441 (D.D.C. 1986). Even after an appeal has been filed, further relief may be granted if defendant has failed to comply with the declaratory judgment issued by the Court. See Horn & Hardart Co. v. Nat'l Rail Passenger Corp., 269 U.S. App. D.C. 53, 843 F.2d 546, 548 (D.C. Cir.), cert. denied, 488 U.S. 849, 102 L. Ed. 2d 102, 109 S. Ct. 129 (1988); McCann v. Kerner, 436 F.2d 1342, 1343 (7th Cir. 1971).

 In its Order of October 22, 1997, the Court declared GRS-20 null and void and stated that the Archivist had no statutory authority to promulgate it or implement it. The government argues that since the Court declared GRS-20 "null and void" rather than enjoining the Archivist from relying on GRS-20, the Archivist did not violate the Court's Order when he advised government agencies that GRS-20 currently authorizes destruction of electronic records. *fn2" The government's view of the effect of a declaratory judgment is mistaken. If the Court's declaration that GRS-20 is null and void means anything, it means that the schedule cannot "currently authorize" destruction of electronic records and that government agencies may not "rely upon GRS 20" as a valid schedule for destroying such records. The government's decision to appeal this Court's ruling does not affect the validity of the declaratory judgment unless and until the judgment is reversed on appeal or the government seeks and is granted a stay pending appeal.

 The Archivist's disregard of the Court's Order of October 22, 1997 in both his public pronouncements and his actions over the last five months gives this Court jurisdiction to order further necessary or proper relief to enforce its prior Order. See 28 U.S.C. § 2202; Horn & Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d at 548 ("every court, with few exceptions, has inherent power to enforce its decrees and to make such orders as may be necessary to render them effective. . . . To rule otherwise would allow the party against whom a declaratory ...


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