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Citizens for Responsibility and Ethics in Washington v. Office of Administration

June 16, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Currently pending before the Court is the [47] Motion to Dismiss for Lack of Subject Matter Jurisdiction brought by Defendant, the Office of Administration ("OA"), Executive Office of the President ("EOP"). Pursuant to the Freedom of Information Act ("FOIA"), Plaintiff, Citizens for Responsibility and Ethics and Washington ("CREW"), filed a request for documents that CREW asserts OA assembled and prepared relating to the White House's alleged loss of EOP e-mail records. When OA failed to timely process CREW's FOIA request, CREW filed its Complaint in this action, along with a temporary restraining order/preliminary injunction seeking an order requiring OA to process and disclose the records CREW sought. OA has now moved to dismiss CREW's FOIA action, arguing that this Court lacks subject matter jurisdiction over CREW's action because OA is not, as a matter of law, an agency subject to the FOIA. OA first raised this argument in an August 2007 motion for judgment on the pleadings, which this Court denied without prejudice, in order to allow the parties to conduct very limited discovery, "out of an abundance of caution." See Order, Feb. 11, 2008, Docket No. [33]. Following the completion of that limited discovery, OA filed its [47] Motion to Dismiss for Lack of Subject Matter Jurisdiction, which CREW vigorously opposes.

The question OA's Motion presents is a close one, and is not easily resolved by reference to the limited body of D.C. Circuit case law addressing the agency status of units within the EOP. Quite frankly, the parties' discovery in this action reveals that OA's functions, which are strictly administrative, in large part distinguish it from the EOP components previously considered by the D.C. Circuit, which perform more substantive functions. Nevertheless, the Court has conducted a searching review of OA's Motion to Dismiss, CREW's Opposition, OA's Reply, the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court concludes that OA is not an agency subject to the FOIA, and shall therefore GRANT OA's [47] Motion to Dismiss. The Court's conclusion that OA is not an agency subject to the FOIA obviates OA's obligation to comply with CREW's FOIA request. The Court shall therefore DENY as moot CREW's [12] motion to modify this Court's scheduling orders, which was previously held-in-abeyance, and which seeks further information as to the documents withheld by OA in its responses to CREW's FOIA request. Finally, the Court shall DISMISS this case in its entirety.


A. Complaint Allegations and Procedural History

According to CREW's Complaint, in October 2005, OA discovered an issue relating to the EOP's process for retaining e-mail, and conducted a detailed analysis of the problem. Compl. ¶ 19. On April 17 and 18, 2007, CREW sent two FOIA requests to OA seeking records, regardless of format and including electronic records and information, relating to the potential loss of e-mail records of the EOP. Id. ¶ 25, Exs. A (4/17/07 Letter from A. Weismann), Ex. B (4/18/07 Letter from A. Weismann). CREW's FOIA requests identified six specific categories of records and requested expedited processing. Id. ¶¶ 26-29, Exs. A and B. By letter dated April 27, 2007, OA acknowledged receipt of CREW's FOIA requests and granted CREW's request for expedited processing. Id. ¶ 30, Ex. C (4/27/07 Letter from C. Ehrlich). Despite granting CREW's request for expedited process, OA determined that it could not meet the time limits for processing described in the FOIA given the scope of CREW's request, and provided CREW "with the opportunity to either limit the scope of [its] request so that it might be processed within the prescribed time limits or arrange an alternate time frame to process these records." Id. ¶ 30, Ex. C. CREW responded to OA by letter dated April 30, 2007, in which it attempted to clarify the scope of its FOIA requests. Compl. ¶ 31; Ex. D (4/30/07 Letter from A. Weismann).

On May 23, 2007, having received neither a production of documents nor an anticipated date for the completion of processing, CREW filed its Complaint, along with its application for a temporary restraining order/preliminary injunction. See Compl., Docket No. [1]; Motion for TRO/PI, Docket No. [3]. In lieu of litigating CREW's TRO/PI, the parties agreed, through Court-supervised negotiations, to a timetable for OA to process the priorities CREW identified with respect to its TRO/PI. See Minute Entries, May 30, 2007; June 4, 2007 Order, Docket No. [7]; and June 7, 2007 Order, Docket No. [9].

Pursuant to that timetable, OA made its first response to CREW's FOIA request on June 21, 2007, producing 50 pages of responsive documents and withholding 454 pages of potentially responsive documents. See CREW Mot. to Modify, Docket No. [12], Ex. 1 (6/21/07 Letter from C. Ehrlich). In the letter accompanying that response, OA first asserted that it is not an "agency" subject to the FOIA, because it "provides common administrative support and services to components within EOP, including certain administrative support and services in direct support of the President." Id. OA asserted that it was nevertheless electing to process CREW's FOIA requests "as a matter of administrative discretion." Id. OA made its second response to CREW's FOIA requests on August 24, 2007, advising CREW that it had located, and was withholding, approximately 3,470 additional potentially responsive pages, and again asserting that it was not an agency subject to the FOIA See OA Opp'n to CREW Mot. for J. on Pleadings, Ex. 5 (8/24/07 Letter from F. Andrew Turley). OA also denied that it was an agency subject to the FOIA in its Answer to CREW's Complaint, filed on June 25, 2007. See Answer ¶ 7.

After OA's first response, CREW moved to modify the Court's previous scheduling Orders to require OA to provide a Vaughn index for withheld documents. See CREW Mot. to Modify, Docket No. [12]. OA opposed that motion, and alerted the Court and CREW that it intended to move to dismiss this action on the grounds that OA is not an agency subject to the FOIA. OA Mot. at 3; 7/27/07 Joint Status Report, Docket No. [17]. On August 7, 2007, the Court entered an Order setting a briefing schedule for OA's motion and holding in abeyance CREW's motion to modify pending resolution of OA's motion. See Order, Docket No. [18]. OA subsequently filed its motion for judgment on the pleadings and, as noted above, on February 11, 2008, this Court issued an Order denying that motion without prejudice and "out of an abundance of caution," allowing the parties to conduct "very limited discovery--which might be considered jurisdictional in nature." See Order, Feb. 11, 2008, Docket No. [33] at 1. Specifically, the Court instructed that, in light of the considerations set forth in the relevant D.C. Circuit precedent, the parties' discovery would be limited to "the manner in which OA carries out the authority delegated to it in its charter documents and any functions that OA in fact carries out beyond those specifically delineated in its charter documents." Id. at 6.

In connection with that discovery, "OA produced to [CREW] over 1,300 pages of documents, and made OA's then Director, Alan R. Swendiman, available for deposition." OA MTD at 7. Also, pursuant to Court Order, OA produced to CREW one document relating to OA's implementation of the Presidential Records Act, see id. (citing Docket No. [42]), and submitted the declaration of OA's General Counsel, M. Elizabeth Medaglia, which responded to factual questions the Court posed during a March 28, 2008 telephone conference, id. See OA Opp'n to CREW Mot. to Compel, Ex. 1 (hereinafter "Medaglia Decl.").*fn1

B. OA's Establishment and Functions

The Office of Administration was established as a unit within the EOP by President James Carter's Reorganization Plan No. 1 of 1977. OA MTD at 2; Reorganization Plan No. 1 of 1977 (hereinafter "Reorganization Plan"), § 2, 42 Fed. Reg. 56101, 91 Stat. 1633. Under the Reorganization Plan, OA "shall be headed by the President," and "shall provide components of the [EOP] with such administrative services as the President shall from time to time direct."

Reorganization Plan § 2. The Reorganization Plan further provides that there "shall be a Director of [OA]," who "shall be appointed by the President and shall serve as chief administrative officer of [OA]." Id. In his message to Congress accompanying the Reorganization Plan, President Carter explained that his proposed reorganization, including the creation of OA, "was based on the premise that the EOP exists to serve the President and should be structured to meet his needs." OA MTD, Ex. 1 at 3. In particular, President Carter explained that establishing the centralized OA would create a "focus for monitoring the efficiency and responsibility of administrative services," as well as a "base for an effective EOP budget/planning system through which the President can manage an integrated EOP rather than a collection of disparate units."

Id. at 8.

President Carter set forth OA's specific duties and responsibilities in Executive Order No. 12028, 42 Fed. Reg. 62895 (Dec. 12, 1977), as amended by Executive Order No. 12122, 44 Fed. Reg. 11197 (Feb. 26, 1979).*fn2 Pursuant to Executive Order No. 12028, OA "shall provide common administrative support and services to all units within [EOP], except for such services provided primarily in direct support of the President," and "shall, upon request, assist the White House Office in performing its role of providing those administrative services which are primarily in direct support of the President." Id. § 3(a). Executive Order No. 12028 continues to state that OA shall provide "all types of administrative support and services that may be used by, or useful to, units within [EOP]," including, but not limited to, "personnel management services, including equal employment opportunity programs . . . financial management services . . . data processing . . . library, records, and information services . . . office services and operations, including: mail, messenger, printing and duplication, graphics, word processing, procurement, and supply services." Id. § 3(b). In addition, Executive Order No. 12028 transferred and reassigned to OA the "primary responsibility for performing all administrative support and service functions of units within [EOP] . . . except to the extent that those functions are vested by law in the head of such a unit, other than the President" or "are performed by the White House Office primarily in direct support of the President." Id. § 5.

The President's appointment of the Director of OA is not subject to Congressional approval. OA MTD at 24. As set forth in Executive Order No. 12028, the Director of OA "report[s] to the President," currently through the Deputy Assistant to the President for Management and Administration. Exec. Order No. 12028, § 2; OA MTD at 4, Ex. 2 (Mar. 13, 2008 Tr. of Swendiman Dep.) (hereinafter "Swendiman Tr."). The Director of OA also carries the additional title of Special Assistant to the President. Swendiman Tr. at 6. The Director is "responsible for ensuring that [OA] provides units within the [EOP] common administrative support and services." Exec. Order No. 12028, § 2. In particular, pursuant to Executive Order No. 12122, the Director "organize[s] [OA], contract[s] for supplies and services, and do[es] all other things that the President, as head of [OA], might do." Exec. Order No. 12122, § 4(a). However, the OA Director is "not accountable for the program and management responsibilities of units within the [EOP]," to which OA provides administrative services, rather "the head of each unit [] remain[s] responsible for those functions." Id. § 4(d). Further, the Director preforms his duties "[s]ubject to such direction and approval as the President may provide or require." Id. § 4(a).

OA's Fiscal Year 2009 Budget describes its mission as "to provide enterprise-level administrative services to the [EOP] and the Office of the Vice President." OA MTD, Ex. 3 (FY 2009 Budget) at OA-3. According to OA's most recent Budget submission, OA is organized along the following lines:

* Office of the Director, which includes the Office of the General Counsel and the Equal Employment Opportunity Office;

* Office of the Chief Operating Officer, which "manages human resources, library, office supply, receiving and warehousing, duplicating, facilities management, telecommunications, and mail/messenger functions;"

* Office of the Chief Financial Officer, which "directs, manages, and provides policy guidance and oversight of financial management activities and operations [for EOP components], including travel support;"

* Office of Security and Emergency Preparedness, which "is responsible for oversight of EOP security, emergency preparedness, and continuity of operations programs," and "serves as a liaison with the United States Secret Service;"

* Office of the Chief Facilities Management Officer, which "oversees services and space allocations within EOP buildings, and also serves as a liaison with the General Services Administration ["GSA"];"

* Office of the Chief Procurement and Contract Management Officer, which "oversees the issuance of contracts and purchase orders on behalf of EOP components;" and

* Office of the Chief Information Officer, which "delivers strategic and operational technology leadership to EOP components supported by OA."

Id. OA currently has a staff of more than 200 employees. Id. at OA-4.

In exercising the authority delegated to it under its charter documents, OA carries out a variety of functions that lead it to interact with entities (including Executive Branch agencies) outside of EOP. Specifically, as authorized in Executive Order No. 12028, OA contracts with non-EOP agencies for a variety of services to be performed for OA and for other EOP components. See OA MTD at 19. In doing so, OA "sometimes uses procurement organizations within the federal government (such as GSA; GovWorks, a component of the Department of the Interior; and NASA SEWP, a component of the National Air and Space Administration) to procure supplies and services on behalf of the EOP." Id.; CREW Opp'n at 19-20 (describing OA contract with GovWorks). OA also enters into reimbursable agreements with various federal agencies to outsource certain administrative services. OA MTD at 19; CREW Opp'n at 20. In particular, the parties' briefs describe the following contracts between OA and other federal agencies, each of which serves to provide EOP components with administrative services:

* A reimbursable services agreement with GSA for GSA's improvement of the White House Press Office, see OA MTD at 19, CREW Opp'n at 20;

* An interagency agreement with the Department of Health and Human Services ("HHS"), Division of Payroll Management that provides for HHS to process and manage grants awarded by the Office of National Drug Control Policy, an EOP component. OA MTD at 19, CREW Opp'n at 21;

* A contract with the Bureau of Public Debt, Administrative Resource Center ("ARC"), which provides for the ARC to handle OA's payroll and certain ...

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