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Citizens for Responsibility and Ethics in Washington v. Cheney

October 5, 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

Currently before the Court is a [23] Motion for Stay pending Petition for Writ of Mandamus or, in the alternative, for a Protective Order, filed on September 30, 2008, by 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. On October 1, 2008, Plaintiffs, Citizens for Responsibility and Ethics in Washington and a number of individual historians, archivists, and organizations of archivists and historians, filed an Opposition. The Court also held a conference call on the record with counsel for all parties on October 1, 2008, to further discuss the parties' arguments with respect to a potential protective order and to suspend any scheduled depositions pending resolution of Defendants' Motion for Stay and their Petition for Writ of Mandamus before the Court of Appeals.

After considering the aforementioned submissions and the arguments presented during the conference call, and after a thorough review of the applicable case law, statutory authority, and the record of the case as a whole, the Court shall DENY Defendant's Motion for Stay pending Petition for Writ of Mandamus, and shall GRANT Defendants' Motion for a Protective Order.

Defendants' Motion for Stay and their Petition for Writ of Mandamus contain content that bears no resemblance to what has actually transpired in this case.*fn1 Defendants suggest that this Court either ignored or denied Defendants' jurisdictional arguments in favor of allowing Plaintiffs to take intrusive discovery concerning a wide-range of factual issues that are inappropriate for judicial review. The truth is that Defendants have never -- prior to the instant Motion -- briefed the jurisdictional arguments that form the basis for their Motion for Stay. To the contrary, Defendants made the decision to litigate this case on the merits by introducing various declarations into the record that gave rise to factual ambiguities and failed to resolve the legal questions presented in this case. Defendants' arguments then shifted through several unexplained incarnations (reflected in several additional rounds of briefing), none of which resolved the factual and legal issues necessary to reach a disposition in this case.

The parties and the Court therefore reached an impasse -- resolution of the legal questions in this case depended on discovery of discrete factual information within the knowledge of specific government officials. Attempts to obtain the necessary factual information through briefing and written submissions to the Court failed. Defendants' declarations served only to confuse, rather than to clarify, Defendants' factual and legal positions. The Court therefore granted Plaintiffs' request to take expedited and targeted discovery into six areas of inquiry that comply with the framework set forth in Armstrong v. EOP, 1 F.3d 1274, 1293-94 (D.C. Cir. 1993), which permits judicial review of classification decisions under the Presidential Records Act, 44 U.S.C. § 2201 et seq. To alleviate any concerns that the two depositions authorized by the Court would stray into areas that are not permitted by Armstrong, the Court also subsequently ordered the parties to conduct their depositions in the Courthouse with a judicial officer available for any objections that might arise. See 10/1/08 Conf. Call. Tr. at 5:1 - 5:3.

Only after the parties' briefing had reached this impasse did Defendants request to file a motion to dismiss on jurisdictional grounds. Even when making this request, however, Defendants were remarkably unspecific about what jurisdictional grounds they would assert, and no such arguments had been briefed in any of their submissions to the Court. Nevertheless, the Court expressly advised Defendants that they could raise any of their unspecified jurisdictional arguments in a motion to dismiss pursuant to the briefing schedule set by the Court, and that such jurisdictional arguments would be considered prior to reaching any merits arguments advanced by the parties. Rather than comply with that schedule, it appears that Defendants have decided to develop their jurisdictional argument in the context of a Motion for Stay and a Petition for Writ of Mandamus.

The sole jurisdictional argument now developed by Defendants and presented to this Court--that the discovery allowed by the Court in this case runs afoul of the D.C. Circuit's decision in Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)--fails on its merits. See Defs.' Mot. for Stay at 1-2. As explained infra, the D.C. Circuit expressly recognized in Armstrong v. EOP, 1 F.3d 1274 (D.C. Cir. 1993), that district courts may review Presidential Records Act classification decisions (and guidelines related thereto) of the sort that are at issue in this litigation, and this Court is complying with the framework set forth by the D.C. Circuit's Armstrong opinions. In short, Defendants' Motion for Stay--and the jurisdictional argument therein--are meritless.

I. DISCUSSION

To avoid undue repetition, the Court shall incorporate by reference its exhaustive recitation of the history of this case, which is set forth in the Court's Discovery Order. See Order at 5-18 (Sept. 24, 2008), Docket No. [20]. In brief, this case concerns the Presidential Records Act ("PRA"). The PRA 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). 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. Significantly, the PRA does not contain any further definitions of the terms "constitutional, statutory, or other official or ceremonial duties of the [Vice] President" when defining Vice-Presidential records. 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 on September 8, 2008, along with a Motion for Preliminary Injunction.*fn2 Defendants filed an Opposition to the Motion for Preliminary Injunction on September 16, 2008, which did not oppose the Motion on jurisdictional grounds. Rather, Defendants 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 supported their Opposition with Declarations 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.

Ms. O'Donnell's Declaration gave rise to a key factual dispute in this case. She first defined the term "Vice-Presidential records" by referencing the definition of the term set forth in the PRA (i.e., Vice-Presidential records consist of documentary materials related to "the constitutional, statutory, or other official or ceremonial duties of the Vice President"). See O'Donnell Decl. ¶ 5. Ms. O'Donnell then inexplicably included two "sub-definitions" that narrowed the PRA's language, stating that "[t]he constitutional, statutory, or other official or ceremonial duties of the Vice President include both the functions of the Vice President as President of the Senate and the functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities." Id. The introduction of these two sub-definitions made it unclear whether Defendants were narrowing the broad language of the PRA in a way that excluded documentary materials that legally should be covered by the PRA. The Court sought to clarify the ambiguity by inquiring of Defendants:

Does this statement indicate that Defendants interpret the phrase "the constitutional, statutory, or other official or ceremonial duties of the Vice President" as exclusively encompassing "the functions of the Vice President as President of the Senate" and "the functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities?"

Order at 1 (Sept. 17, 2008), Docket No. [12].

Defendants responded that "the short answer to the Court's question is yes." See Defs.' Resp. at 1. Defendants' Response was supported by a second Declaration by Ms. O'Donnell, in which she avers that all the constitutional, statutory, or other official or ceremonial duties of the Vice President fall within either (a) the category of functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities or (b) the category of the functions of the Vice President as President of the Senate.

Suppl. O'Donnell Decl. ¶ 5. She further avers that "[a] Vice President has no functions unless they are specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities." Id. ¶ 6. Consistent with Defendants' previous submissions to the Court, Defendants' Response did not allude to any jurisdictional grounds for dismissal, and instead focused on potential factual disputes and the related legal questions in the record.

The Court issued an Order for a Preliminary Injunction on September 20, 2008. See Order at 1-2 (Sept. 20, 2008), Docket No. [15]. The Court explained that "Defendants' Response to the Court's latest question makes unmistakably clear that Defendants apply a narrowing interpretation to [the language of the PRA]." Mem. Op. at 11 (Sept. 20, 2008), Docket No. [16]. This conclusion was apparent because Defendants [] define the terms used in the PRA--the 'constitutional, statutory, or other official or ceremonial duties of the [Vice] President'--to include only those 'functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities' and 'functions of the Vice President as President of the Senate.'

Id. at 11 (citing Suppl. O'Donnell Decl. ΒΆ 5; Defs.' Resp. at 1). The Court further explained that Ms. O'Donnell's declarations stated the apparent legal conclusion that the PRA's definition of documentary materials was properly limited to the documentary materials falling under one of these two sub-definitions, but that the Declarations and Defendants' pleadings were "bereft of any legal analysis demonstrating that Defendants' interpretation [was] correct as a matter of law or any identification of legal authority that would allow Defendants to place limitations on the PRA's statutory language." Id. at 12. The Court also explained that Ms. O'Donnell's declarations and Defendants' pleadings gave rise to numerous factual questions, such as whether "Vice President Cheney only engages in activities that fall within the two narrow categories that Defendants assert comprise all of his 'constitutional, statutory, or other official or ceremonial duties,'" id. at 12 (emphasis in original), and ...


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