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Citizens for Responsibility and Ethics in Washington v. Cheney

September 20, 2008

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, ET AL. PLAINTIFFS,
v.
RICHARD B. CHENEY, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiffs, Citizens for Responsibility and Ethics in Washington ("CREW") and a number of individual historians, archivists, and organizations of archivists and historians, bring the above-captioned action seeking declaratory, injunctive, and mandamus relief against Defendants, Vice President Richard B. Cheney in his official capacity, the Executive Office of the President ("EOP"), the Office of the Vice President ("OVP"), the National Archives and Records Administration ("NARA"), and Dr. Allen Weinstein, Archivist of the United States, in his official capacity. Plaintiffs allege that Vice President Cheney, the OVP, and the EOP have improperly excluded records from the Presidential Records Act, 44 U.S.C. § 2201 et seq. ("PRA"), and seek a declaratory judgment or alternatively a writ of mandamus based on those allegations. Plaintiffs also allege that NARA and the Archivist have improperly excluded records from the PRA and failed to comply with the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and seek a declaratory judgment or alternatively a writ of mandamus based on those allegations.

Currently pending before the Court is Plaintiffs' Motion for a Preliminary Injunction, which seeks to preserve all records potentially at issue in this litigation during the pendency of the litigation. Based upon a thorough review of the parties' filings in connection with Plaintiffs' Motion for Preliminary Injunction, the two conference calls held on the record, and the relevant statutes and case law, the Court shall GRANT Plaintiffs' [3] Motion for Preliminary Injunction and shall order Defendants--Vice President Cheney, the OVP, the EOP, NARA, and the Archivist--to preserve throughout the pendency of this litigation all documentary material, or any reasonably segregable portion thereof created or received by the Vice President, his staff, or a unit or individual of the Office of the Vice President whose function is to advise and assist the Vice 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 Vice President, without regard to any limiting definitions that Defendants may believe are appropriate.

I. BACKGROUND

A. The Presidential Records Act

The Presidential Records Act defines the term "Presidential records" as: 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. 44 U.S.C. § 2201(2). Pursuant to the PRA, "[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records," 44 U.S.C. § 2202, and the President is directed 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 differentiates "Presidential records" from "personal records," defining "personal records" as "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). Further, the PRA provides that documentary materials produced or received by the President, his staff, or units or individuals in the EOP whose function is to advise and assist the President "shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately." Id. § 2203(b).

The PRA specifically directs that Vice-Presidential records are subject to the provisions of the PRA "in the same manner as Presidential records," and provides that "[t]he duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same as the duties and responsibilities of the President under [the PRA] with respect to Presidential records." Id. § 2207. During the President and Vice President's term in office, they may dispose of Presidential or Vice-Presidential records "that no longer have administrative, historical, information, or evidentiary value," but only after complying with particular requirements for notifying both the Archivist and the appropriate congressional committee of the planned disposal. Id. § 2203(c)-(d). Significantly, the PRA provides that upon conclusion of the President and Vice President's last term in office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to," Presidential and Vice- Presidential Records. Id. § 2203(f)(1). The PRA further imposes a duty on the Archivist to "make such records available to the public as rapidly and completely as possible consistent with the provisions of the [PRA]." Id.

B. Plaintiffs' Allegations and Procedural History

As noted above, the PRA broadly defines Vice-Presidential records as documentary materials, or any reasonably segregable portion thereof, created or received by the [Vice] President, his immediate staff, or a unit or individual of the [Office of the Vice President] whose function is to advise and assist the [Vice] 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 [Vice] President.

Id. §§ 2201(2), 2207. Significantly, the PRA does not contain any further definitions of the terms "constitutional, statutory, or other official or ceremonial duties of the [Vice] President." See generally 44 U.S.C. § 2201, et seq. Plaintiffs' Amended Complaint alleges that Defendants have improperly and unlawfully placed limitations on the scope of Vice-Presidential records subject to the PRA. Am. Compl. ¶ 1. In particular, Plaintiffs allege that Vice President Cheney, the OVP, and the EOP have or will "improperly and unlawfully exclude from the PRA records created and received by the vice president in the course of conducting activities related to, or having an effect upon, the carrying out of his constitutional, statutory, or other official [or] ceremonial duties." Id. Plaintiffs also challenge the alleged "policies and practices" of the Archivist and NARA "to exclude from the reach of the PRA those records that a vice president creates and receives in the performance of his legislative functions and duties." Id.

Plaintiffs filed their initial Complaint in this action on September 8, 2008, along with a Motion for Preliminary Injunction. On September 9, 2008, the Court contacted counsel for Plaintiffs and Defendants by telephone to schedule a conference call on the record regarding Plaintiffs' Motion for Preliminary Injunction. During that phone call, the Court noted the significant overlap between the issues raised in Plaintiffs' Complaint and their Motion for Preliminary Injunction. The Court therefore requested that counsel for each side discuss with their clients the possibility of addressing Plaintiffs' Motion for Preliminary Injunction through a decision on the merits of Plaintiffs' Complaint, with the benefit that all parties would be afforded the opportunity to provide more fulsome briefing on the merits than would be possible under the truncated preliminary injunction schedule set forth in Local Civil Rule 65.1. The Court noted a necessary precondition to addressing Plaintiffs' Motion for Preliminary Injunction through a decision on the merits: Defendants would have to agree to preserve all documents potentially at issue in this litigation so that Plaintiffs could receive full relief in the event they ultimately prevailed on the merits of their Complaint.

On September 10, 2008, the Court held a conference call on the record with counsel for all parties participating during which all parties agreed to the Court's proposal to proceed via a thorough briefing on the merits of Plaintiffs' Complaint and the Court set an expedited schedule for that merits briefing. As the Court stated in its Order documenting that call,

Defendants agreed that they will preserve--and will not transfer out of their custody and control--any and all records potentially at issue in this litigation during its pendency, as well as during any ensuing appeal. The parties agreed to memorialize this agreement through a memorandum of understanding, stipulation, or proposed consent order for the Court's approval, and to file such a document no later than 5:00 p.m. on Friday, September 12, 2008.

See 9/10/08 Order, Docket No. [4]. At approximately 3:00 p.m. on Friday, September 12, 2008, the Court was advised by both parties that they had been unable to reach the type of agreement contemplated by the Court's September 10, 2008 Order. See 9/12/08 Minute Order. The parties then faxed to the Court copies of their competing agreement proposals, which the Court reviewed. After reviewing those proposals, the Court held a conference call on the record with counsel for all parties participating. Id. Although there were differences between the language in the parties' proposals as to the records at issue, during the conference call the Court identified two principal discrepancies between the parties' proposed agreements: (1) Defendants' proposal did not bind all Defendants, but only covered the OVP, and (2) while both parties' proposals provided that documents at issue in this litigation could be transferred to NARA, Defendants' proposal did not bind NARA or the Archivist, and contained no specifications as to how NARA or the Archivist would treat any transferred documents. "When it became clear that no agreement could be reached covering all Defendants, the Court reimposed the briefing schedule required by Plaintiff's motion for preliminary injunction, which had previously been mooted by the parties' agreement to have the case resolved on the merits, contingent on the agreement described above." Id.

As required by the Court and Local Civil Rule 65.1, Defendants filed their Opposition to Plaintiff's Motion for Preliminary Injunction on September 16, 2008. That Opposition asserted that

The Vice President and the Office of Vice President ("OVP") have been carrying out since January 20, 2001--and intend to continue to carry out--their obligations under the Presidential Records Act with respect to documentary materials that relate to or have an effect upon the Vice President's constitutional, statutory or other official and ceremonial duties, both executive-related and legislative-related duties.

Defs.' Opp'n at 1. Defendants' Opposition is supported by two Declarations, declared under penalty of perjury, filed by Claire M. O'Donnell, Assistant to the Vice President and Deputy Chief of Staff, and Nancy Kegan Smith, Director of the Presidential Materials Staff in the Office of Presidential Libraries at the National Archives and Records Administration ("NARA"). See id., Exs. 1 and 2. In particular, insofar as the gravamen of Plaintiff's Motion for Preliminary Injunction is their allegation that Defendants will not comply with 44 U.S.C. § 2207, and their allegation that Defendants have limited their compliance with that Section based on Executive Order 13,233,*fn1 Defendants' Opposition and Declarations specifically assert that Defendants are complying with 44 U.S.C. ยง 2207 and deny that either the Vice President or the OVP have ...


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