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Citizens for Responsibility and Ethics in Washington v. Cheney

January 19, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, ET AL., PLAINTIFFS,
v.
RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

(January 19, 2009) "Were we both to die to-day, to-morrow two other names would be in the place of ours, without any change in the motion of the machinery. Its motion is from its principle, and not from you or myself."

- Thomas Jefferson to John Adams, reflecting on their disagreements about the federal government.*fn1 This case concerns matters of significance extending beyond its individual parties, requiring a discussion of how the three branches of government interact to preserve documents that form part of our nation's history. At risk, according to Plaintiffs, are Vice-Presidential records that may be lost or destroyed as the current Presidential Administration ends on January 20, 2009. The Court previously entered a Preliminary Injunction on September 20, 2008, requiring Defendants to preserve these records during the pendency of the litigation.

Resolution of this case has been impeded by Defendants' constantly shifting arguments and their emergency petition for mandamus to the Court of Appeals for the District of Columbia Circuit, all of which have delayed but not prevented the continuation of these proceedings. Nevertheless, the Court has now required Defendants to take a firm position on the remaining issues in this case by ordering a final round of consolidated briefing prior to the January 20, 2009 change of Administrations. Pursuant to the schedule set by the Court, Defendants filed a consolidated Motion to Dismiss, or in the alternative, Motion for Summary Judgment on December 8, 2008, asserting various threshold legal defenses and arguing that, if any of the Plaintiffs' claims are legally cognizable, that entry of summary judgment in favor of Defendants is appropriate. Plaintiffs filed a Cross-Motion for Summary Judgment and Opposition to Defendants' Motion on December 22, 2008, and the parties proceeded to brief both motions, which became ripe as of January 5, 2009.

Plaintiffs' claims implicate the Presidential Record Act ("PRA" or "the Act"), 44 U.S.C. § 2201 et seq., which Congress enacted following a controversy surrounding President Richard

M. Nixon's Presidential records. The PRA incorporates an assumption made by Congress (in 1978) that subsequent Presidents and Vice Presidents would comply with the Act in good faith, and therefore, Congress limited the scope of judicial review and provided little oversight authority for the President and Vice President's document preservation decisions. As a consequence, even though Plaintiffs in this case have identified (through discovery) that the National Archives and Records Administration may have provided the Vice President with document preservation guidance that conflicts with the requirements in the PRA, Plaintiffs cannot obtain relief under the Act as Congress enacted it. To the extent that this case highlights any deficiencies in -- or unintended consequences of -- the PRA, that is an issue for Congress to consider. This Court is bound to apply the law only as it is written, not how the Court or any party believes it ought to be.

Accordingly, after a searching review of the parties' submissions and attachments thereto, applicable case law, statutory authority, and entire record of the case as a whole, the Court finds that Plaintiffs have brought legally cognizable declaratory judgment and mandamus claims against the Vice President and the Office of the Vice President, but that the Court is compelled to enter summary judgment in Defendants' favor. The Court shall GRANT-IN-PART and DENY-IN-PART Defendants' Motion to Dismiss, GRANT Defendants' Motion for Summary Judgment, and DENY Plaintiffs' Cross-Motion for Summary Judgment, for the reasons that follow.

EXECUTIVE SUMMARY*fn2

! Plaintiffs filed this suit for declaratory and mandamus relief to prevent the alleged destruction of Vice-Presidential records in violation of the Presidential Records Act. Because Congress enacted that statute in 1978 with the assumption that future Presidents and Vice Presidents would comply with it in good faith, Congress drastically limited the scope of outside inquiries related to the Vice President's handling of his own records during his term in office. ! Despite these limitations, Plaintiffs have asserted legally cognizable claims for declaratory and mandamus relief against the Vice President and the Office of the Vice President. The record preservation guidelines implemented by the Vice President and the Office of the Vice President are subject to judicial review, and Plaintiffs have standing to assert these claims. ! Plaintiffs have not asserted legally cognizable claims against the Executive Office of the President, the Archivist of the United States, and the National Archives & Records Administration ("NARA"). Plaintiffs failed to demonstrate that these Defendants have any statutory authority over the document preservation guidelines implemented by the Vice President and the Office of the Vice President during the Vice President's term in office. ! The Court granted discovery in this case to allow clarification regarding whether the

Defendants are, in fact, complying with the Presidential Records Act. Plaintiffs deposed the Deputy Chief of Staff to the Vice President, who testified that the Vice President and the Office of the Vice President are fully complying with their obligations under the Presidential Records Act. Plaintiffs were unable to rebut this representation through their discovery. The Court therefore has no basis on which to award Plaintiffs relief against the Vice President and the Office of the Vice President. ! Plaintiffs were able to confirm during discovery that the Archivist and NARA have not made a final determination as to whether or not the Vice President's legislative records might be "personal" records that need not be preserved under the PRA. Although the PRA clearly contemplates that the Vice-President's legislative records are not personal records, the Court cannot grant Plaintiffs any relief because neither the Archivist nor NARA have the statutory authority to affect the preservation decisions of the Vice President or the Office of the Vice President during the Vice President's term in office under the Presidential Records Act. The Vice President and the Office of the Vice President nevertheless concede that such documents must be preserved under the Presidential Records Act. ! Plaintiffs argue throughout their submissions to the Court that the Presidential Records

Act should not be read to vest broad discretion in the Vice President to handle the preservation of his own records during his term in office without the possibility of judicial oversight. The Court is nevertheless bound to apply the Presidential Records Act as Congress enacted it, which provides only narrow areas of oversight relating to the Vice President's document preservation decisions. ! To the extent that this lawsuit highlights any unintended consequences stemming from the Presidential Records Act, Plaintiffs' remedy lies with Congress and not this Court.

I. BACKGROUND

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 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.*fn3 Plaintiffs allege that Vice President Cheney, the OVP, and the EOP have improperly excluded records from the PRA, and seek a declaratory judgment or 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 ("APA"), 5 U.S.C. § 701 et seq., and seek a declaratory judgment or a writ of mandamus based on those allegations.

A. The Presidential Records Act

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). Pursuant to the PRA, "[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records," id. § 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).

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. Based on the subject matter of the present suit, it bears emphasizing that the Vice President is required to take steps to assure that Vice-Presidential records, as they are defined in the PRA, are appropriately maintained and preserved. Id. § 2203(a) ("the [Vice] President shall take all such steps as may be necessary to assure . . . that such records are maintained as [Vice-] Presidential records").

The PRA allows the President and Vice President to dispose of Presidential and Vice-Presidential records during their terms in office "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). 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*fn4

The Amended Complaint details a series of statements and/or acts leading Plaintiffs to believe that Defendants are improperly excluding one or more categories of Vice-Presidential records from the PRA. These allegations proceed along two tracks. First, Plaintiffs focus on an Executive Order issued by President George W. Bush on November 1, 2001, titled "Further Implementation of the Presidential Records Act." Am. Compl. ¶ 27. Section 11(a) of the Executive Order provides that "the Presidential Records Act applies to the executive records of the Vice President." Id. Plaintiffs allege that this provision narrows the scope of records retained by the Vice President based on its use of the phrase "executive records," rather than the definition provided in the PRA ("documentary materials . . . which relate to . . . the carrying out of the constitutional, statutory, or other official or ceremonial duties of the Vice President"). Id. ¶ 28. The Archivist has also announced his intention to abide by this Executive Order. Id. ¶ 29.

Second, Plaintiffs describe instances when the EOP, the OVP, and Vice President Cheney have indicated that "they are not part of the executive branch." Id. ¶ 30. Since 2003, the Vice President and OVP have not filed reports with NARA concerning data they have classified or declassified in accordance with Executive Order 12,958, as amended by Executive Order 12,292. Id. In 2004, the OVP "refused to permit NARA to conduct an on-site inspection of the procedures and facilities used by the OVP to safeguard classified national security information." Id. To justify its actions, the Vice President explained that the OVP was not an entity within the executive branch. Id.

In 2004, the OVP refused to provide information for inclusion in the United States Government Policy and Support Positions, also known as the "Plum Book." Id. ¶ 32. The 2008 edition of the Plum Book describes the OVP as "a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter." Id. ¶ 32. David Addington, the Vice President's chief of staff, testified before the House Judiciary Committee that the Vice Presidency "belongs to neither" the executive or legislative branch, but is "attached by the Constitution" to Congress. Id. ¶ 33. The White House also released a recent report on its staff to Congress that did not include any staff members from the OVP. Id. ¶ 34.

On at least three occasions, the Vice President and the OVP "refused to comply with the Ethics Reform Act of 1989, which requires every executive agency to file a semi-annual report of payments accepted from non-federal sources." Id. ¶ 31. Vice President Cheney drafted a letter to the Office of Government Ethics dated June 2, 2008, reaffirming that "the disclosure requirements for privately paid travel do not apply to the OVP, which the OVP claims is not an agency in the executive branch." Id.

Based on these statements and/or acts described above, Plaintiffs allege that "the [V]ice [P]resident and the OVP have adopted policies and guidelines that exclude from the reach of the PRA all but a narrow category of [Vice-Presidential] records created or received in the very limited circumstances in which the [V]ice [P]resident deems himself to be acting as part of the executive branch." Id. ¶ 35. Plaintiffs also allege that "NARA has adopted policies and guidelines, without the benefit of public notice and comment, that exclude from the reach of the PRA records generated or received by [V]ice [P]residents in their congressional capacities, i.e., when they preside over the Senate." Id. ¶ 37. The result, according to Plaintiffs, is that NARA considers the congressional records of Vice President Cheney "to be his personal records that he is free to dispose of at will." Id. ¶ 38. Plaintiffs assert that the consequence of these policies and guidelines is that a significant number of records that should be preserved under the PRA will be destroyed at the conclusion of this Presidential Administration: because of the policies and guidelines that the [V]ice [P]resident, the OVP and NARA have developed, Vice President Cheney will take with him as his personal papers or otherwise dispose of a significant percentage of those records, including records that pertain to the carrying out of his legislative duties and functions. As a necessary consequence, NARA and the archivist will not assume control over all [Vice-Presidential records] as defined under the PRA.

Id. ¶ 41. See also id. ¶ 44 (documents may be destroyed, transferred, or disposed of during the transition between Presidential Administrations).

On July 21, 2008, CREW sent a letter to Gary Stern, General Counsel of NARA, describing CREW's concerns about possible PRA violations and "confirming a telephone conversation of that date in which Mr. Stern described NARA's policy of treating the legislative records of the [V]ice [P]resident subject to the PRA as their personal records." Id. ¶ 46. CREW did not receive a response to its letter. Id. This lawsuit followed shortly thereafter.

Plaintiffs' Amended Complaint contains four claims for relief. Count I seeks relief against the Vice President, the OVP, and the EOP under the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiffs seek a declaration that guidelines of the [V]ice [P]resident, the OVP, and the EOP implementing the PRA in a manner that excludes from its reach the records that the [V]ice

[P]resident and his office create and receive in the course of conducting activities relating to or having an effect on the carrying out of the [V]ice [P]resident's constitutional, statutory or other official or ceremonial duties and their implementation of those guidelines are contrary to the law.

Id. ¶ 52.

Count II seeks relief against the Vice President and the OVP, pursuant to the Mandamus Act, 28 U.S.C. § 1361. Plaintiffs seek a writ of mandamus to require "Vice President Cheney and the OVP to comply with their statutory duty to treat as subject to the PRA all records of the [V]ice [P]resident and his office that relate to the exercise of his constitutional, statutory and other official or ceremonial duties." Id. ¶ 58.

Count III seeks relief against the Archivist and NARA for implementing PRA guidelines that improperly exclude the legislative records of the Vice President. Id. ¶ 62. Plaintiffs further allege that the implementation of these guidelines violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, et seq. Accordingly, Plaintiffs seek a declaratory judgment that the [V]ice [P]resident's and [the] OVP's guidelines implementing the PRA in a manner that excludes from its reach all of the records that the [V]ice [P]resident and his office create and receive in the course of conducting activities relating to or having an effect on the carrying out of the [V]ice [P]resident's constitutional, statutory, or other official or ceremonial duties are contrary to the law.

Id. ¶ 64. To the extent the Archivist and NARA have not yet implemented their guidelines, Plaintiffs seek a declaration that "the guidelines, which are contrary to the terms of the PRA, are unlawful and the defendants may not implement those guidelines." Id. ¶ 65.

Finally, Count IV seeks mandamus relief against the Archivist and NARA to require their compliance "with their statutory duty to treat as subject to the PRA [the] records of the [V]ice

[P]resident and his office that relate to the carrying out of his legislative functions and duties." Id. ¶ 71.

C. Procedural History

To say that this case has had a brief but tortured history would be an understatement. From its inception, Defendants were unable (or unwilling) to maintain consistent factual positions, and their course of conduct seemed to reflect their belief that they needed to explain their positions only on a "need to know" basis. Although the Court has identified these difficulties in previous orders and opinions, the Court shall again describe them below because they are necessary to explain the current posture of this case.

Plaintiffs filed their initial Complaint on September 8, 2008, along with a Motion for Preliminary Injunction.*fn5 On September 10, 2008, the Court held a conference call on the record with counsel for all parties participating, to discuss 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. Defendants indicated during the call that they were "willing to preserve all records that are related to this suit or that are at issue in this suit," and identified a "subset" of legislative records that they believed were at issue. The parties were subsequently unable to agree on a stipulation or consent order to preserve these records, however, and the Court re-imposed the preliminary injunction briefing schedule.

Defendants filed an Opposition to the Motion for Preliminary Injunction on September 16, 2008, which opposed the Motion on factual--not legal--grounds:

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 to Pls.' Mot. for a PI 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 NARA. See id., Exs. 1 (hereinafter "O'Donnell Decl.") and 2 (hereinafter "Smith Decl.").

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.

Id., Ex. 1 ¶ 5 (Suppl. O'Donnell Decl.). She further averred 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.

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. ¶ 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 whether various examples of Vice Presidential activities that were proffered by Plaintiffs--including those based on the Vice President's statutory duties imposed by Congress--were considered by Defendants to fall within these narrow definitions. Id. at 14.

Defendants filed a Motion for Reconsideration of the Preliminary Injunction Order on September 23, 2008, and attached a third Declaration by Ms. O'Donnell. The Motion for Reconsideration reasserted Defendants' conclusion that the Vice President, "in performing his duties engages in the two categories of functions identified in the declarations and only in those categories," and that the OVP has applied the PRA "to the [Vice-Presidential] records created or received in the course of engaging in those two functions." Defs.' Mot. for Recons. at 3 (citing Second Suppl. Decl. of Ms. O'Donnell) (emphasis in original omitted).

Defendants' Motion for Reconsideration notably failed to provide any legal analysis supporting their position that the two sub-definitions were legally appropriate interpretations of the PRA's broad language, despite the Court's previous focus on the lack of such authority in its Memorandum Opinion accompanying the Preliminary Injunction Order. See Mem. Op. at 12 (Sept. 20, 2008), Docket No. [16]. Defendants also failed to explain why their sub-definitions were necessary or appropriate if Defendants believed that they were co-extensive with the broad language of the PRA. Although Defendants' Motion for Reconsideration explained that Defendants were using the phrase "specially assigned by the President" based on language found in 3 U.S.C. § 106, see Defs.' Mot. for Recons. at 5, the Court reviewed that statute and found that it was a budgetary provision related to the Vice President's hiring and payment of staff, and not a statute related to the classification of materials under the PRA. The seminal legal question in the case therefore remained: whether Defendants' interpretation of the PRA's language was supported as a matter of law. The factual disputes related to that question also remained, among them whether Defendants were correctly classifying documentary materials by applying their narrowing definitions of the PRA's language.

On the same day that Defendants filed their Motion for Reconsideration, the Court held a conference call on the record with all parties participating. During the call, Defendants decided to introduce a new twist to their arguments. Rather than argue that Ms. O'Donnell's sub-definitions were legally justifiable (based on a budgetary provision or otherwise), Defendants argued for the first time that the sub-definitions were actually created for purposes of this litigation only, and that Defendants were not using these sub-definitions to classify documents under the PRA.*fn6 Defendants' new position raised yet another set of questions. First, as noted above, the Court's Memorandum Opinion accompanying its Preliminary Injunction Order described the Court's observation that Defendants had not offered any legal analysis supporting these sub-definitions. See Mem. Op. at 12 (Sept. 20, 2008), Docket No. [16]. Instead of filing a Motion for Reconsideration indicating that the definitions were created only for purposes of this litigation and that Defendants were complying with the broad definition in the PRA, Defendants' Motion for Reconsideration reaffirmed Defendants' reliance on, and application of, these two narrow definitions. See Defs.' Mot. for Recons. at 3 ("the Office of the Vice President has applied section 2207 to the vice presidential records created or received in the course of engaging in those [two categories of] functions"). Second, Defendants' new position that they created the sub-definitions for purposes of this litigation appeared incongruous with Defendants' previous representations that the definitions were derived from language in a budgetary provision. See Defs.' Mot. for Recons. at 5 (citing 3 U.S.C. § 106).

During the September 23, 2008 conference call, and after the Court described these issues relating to Defendants' new argument, Defendants sought to shift course yet again and, instead of relying on the factual arguments they had previously advanced, proposed that the Court permit another round of briefing to advance jurisdictional arguments in the context of a Motion to Dismiss. The Court rejected the proposal because Defendants failed to explain what jurisdictional arguments they would pursue and how those grounds were unrelated to the factual disputes in the record that prevented the case from moving forward. This lack of specificity was also reflected in Defendants' submissions to the Court, none of which had raised (at that time) any jurisdictional arguments.*fn7 The Court expressly advised Defendants that they could raise jurisdictional arguments in the parties' final round of briefing pursuant to a schedule set by the Court, and that the Court would consider jurisdictional arguments prior to reaching any merits arguments advanced by the parties.

Having considered Defendants' multiple positions taken in the litigation, the Court found that the parties' briefing had reached an impasse. The Court could not resolve the legal questions in this case without further factual information that was within the knowledge of specific government officials, but previous attempts to obtain that information had served to confuse, rather than clarify, the factual questions that remained. The posture of this case was particularly problematic because any decision issued after January 20, 2009--the date of the Vice-Presidential transition--risked the misplacement of documents potentially at issue in this litigation.*fn8

For all of these reasons, the Court asked the parties to submit a Status Report proposing an appropriate briefing schedule and addressing whether narrow and expedited discovery by one or more parties would have to be incorporated into that schedule. See Min. Order dated Sept. 22, 2008. Pursuant to the parties' Status Report, only Plaintiffs requested permission to take discovery. See Status Report at 1-10 (Sept. 23, 2008). The Court granted Plaintiffs' request to depose two individuals--David Addington, the Vice President's Chief of Staff, and Nancy Kegan Smith, the Director of the Presidential Materials Staff in the Office of Presidential Libraries at NARA--and incorporated a brief window for discovery prior to requiring the parties to file a final round of briefing. See Discovery Order at 18 (Sept. 24, 2008), Docket No. [20]. The Court determined that these two depositions were necessary to resolve the factual and legal questions in the record that previous briefing had failed to clarify and without which the case could not move forward.

The Court also determined that these depositions were a more appropriate method for expedited discovery than written discovery because Defendants had already submitted four declarations that failed to resolve the factual and legal disputes in the record. The depositions were likely to be completed more quickly than written discovery and would allow for follow up questioning to clarify any statements. The Court also found that the discovery was necessary to resolve both Defendants' Motion for Reconsideration of the Court's Preliminary Injunction Order, as well as the parties' competing merits arguments concerning Defendants' interpretation of the PRA.*fn9

In response to Defendants' request for guidance as to the scope of discovery, the Court issued a Discovery Order that limited Plaintiffs' questions to six areas of inquiry:

1. The interpretation and application of the PRA by any Defendant, and any policies or record keeping practices related thereto or derived therefrom.

2. The existence, and any Defendant's custody or control of, individual records or categories of records that are or are not covered by the PRA, including but not limited to documentary material in the possession, custody or control of the Vice President, including records in his Senate office.

3. The functions of the Vice President that have generated, or that could generate, documentary materials covered or not covered by the PRA, including but not limited to any functions that are not "specially assigned" by the President.

4. The documentary materials that NARA has received or has not received from Defendants.

5. The interactions between any Defendant and NARA, which includes communications to or from employees working within the office of any named non-individual Defendant, concerning documentary materials covered or not covered by the PRA.

6. The basis for the knowledge of any deponent or Claire M. O'Donnell. Discovery Order at 18-19 (Sept. 24, 2008), Docket No. [20].

On September 30, 2008, Defendants filed a Motion to Stay pending an Emergency Petition for a Writ of Mandamus to the Court of Appeals for the District of Columbia Circuit. Defendants' motion argued that this Court had either ignored or denied one or more of Defendants' jurisdictional arguments in favor of allowing Plaintiffs to take intrusive discovery concerning a wide-range of factual issues that were inappropriate for judicial review. See Mem. Op. at 2 (Oct. 5, 2008), Docket No. [27]. Because that argument bore no resemblance to what had actually transpired in this case, and because the Defendants' other arguments were similarly vacuous, the Court denied Defendants' request for a stay pending their Emergency Petition for Mandamus. Id. at 1-26.

On October 31, 2008, the D.C. Circuit responded to Defendants' Petition and explained that this Court's decision to allow expedited and narrow discovery prior to resolution of the issues raised by the parties was entirely appropriate:

In the judgment of the district court here, the current litigation posture necessitates limited discovery to permit timely adjudication of the factual defense [the] OVP has itself raised. On the basis of the procedural record in the district court and given the deference we owe trial courts in the management of their cases, that judgment is not remotely one from which defendants have an indisputable right to relief.

In re Cheney, 2008 U.S. App. LEXIS 25841 at * 6 (Oct. 31, 2008) (internal citation omitted). The D.C. Circuit therefore denied Defendants' Petition for Mandamus, save in one respect. The D.C. Circuit suggested the substitution of Claire O'Donnell in place of David Addington because Ms. O'Donnell seemed capable of answering questions concerning the declarations that she herself submitted and because Mr. Addington was the Vice President's Chief of Staff. Id. at *7-*9. This Court complied with the D.C. Circuit's ruling on the same day by ordering the substitution of Ms. Donnell for Mr. Addington.

Plaintiffs deposed Nancy Kegan Smith on November 10, 2008. During the course of her deposition, Ms. Smith raised the existence of three memoranda that had been drafted by White House counsel that related to PRA instructions or guidance. Defendants' counsel objected to Plaintiffs' follow up questions about these memoranda and instructed Ms. Smith not to answer based on privilege (deliberative process or attorney-client) and the scope of discovery. Following the deposition, the parties contacted Chambers to discuss whether Defendants' objections were proper, anticipating that the same issue would arise during the deposition of Ms. O'Donnell. The Court held two conference calls with the parties on the record and reviewed the three memoranda in camera. Based on the parties' arguments made during the conference calls and the Court's in camera review of the documents, the Court ruled that none of the memoranda were privileged. The Court nevertheless ruled that only the third memorandum, dated October 8, 2008, fell within the scope of discovery, as the first two memoranda did not specifically address Vice-Presidential records. See Min. Order dated Nov. 12, 2008. In contrast, the October 8, 2008 memorandum specifically referenced Vice-Presidential records and included at least one definition of what constituted a Vice-Presidential record. Id. Accordingly, the Court held that Plaintiffs could properly question Defendants' witnesses about the October 8, 2008 memorandum.

Plaintiffs deposed Ms. O'Donnell on November 13, 2008. Although the parties did not bring any issues to the Court's attention during or immediately after the deposition, Plaintiffs subsequently explained in a Joint Status Report that Ms. O'Donnell lacked any knowledge of the October 8, 2008 memorandum, and accordingly, that she could not answer any questions about it during her deposition.*fn10 The Court therefore granted Plaintiffs leave to re-depose Ms. Smith for the limited purpose of answering questions about the October 8, 2008 memorandum and ordered that, if she also lacked knowledge of the memorandum, Defendants had to produce a copy of it to Plaintiffs at Ms. Smith's deposition. Ms. Smith's re-deposition was taken without apparent incident, and the parties thereafter complied with the briefing schedule set by the Court.

Defendants filed a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6), or in the alternative, Motion for Summary Judgment under Rule 56(c), on December 8, 2008 ("Defs.' Mot."). Plaintiffs filed an Opposition to Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment and a Cross-Motion for Summary Judgment under Rule 56(c) on December 22, 2008 ("Pls.' Opp'n"). Defendants filed a Reply in support of their Motion and an Opposition to Plaintiffs' Motion on December 31, 2008 ("Defs.' Reply"). Plaintiffs filed a ...


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