Brandon v. Eckard

• Decision Date: 22 December 1977
• Docket Number: No. 74-1503,74-1503
• Citation: 569 F.2d 683,187 U.S.App.D.C. 28
• Parties: , 3 Media L. Rep. 1731 Robert M. BRANDON, Appellant, v. Jack M. ECKARD, Administrator, General Services Administration, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 683

569 F.2d 683

187 U.S.App.D.C. 28, 3 Media L. Rep. 1731

Robert M. BRANDON, Appellant, v. Jack M. ECKARD, Administrator, General Services Administration, et al.

No. 74-1503.

United States Court of Appeals District of Columbia Circuit.

Argued March 4, 1975.

Decided Dec. 22, 1977.

Larry P. Ellsworth, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the brief, for appellant.

John K. Villa, Atty., Dept. of Justice, Washington, D. C., at the time the appeal was argued, of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Carla A. Hills Asst. Atty. Gen., Washington, D. C., at the time the brief was filed, Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees. Stephen F. Eilperin, Atty., Dept. of Justice, Washington, D. C., at the time the brief was filed, also entered an appearance for appellees.

Before WRIGHT, TAMM, and WILKEY, Circuit Judges. ^*

Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.

WRIGHT, Circuit Judge:

In this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), appellant Brandon appeals from a District Court order granting summary judgment in favor of appellees, General Services Administration (GSA) and its Administrator. Appellant seeks access to certain materials transferred to GSA by Richard M. Nixon. The materials in question date generally from the period when Mr. Nixon was Vice President of the United States. ¹ We find that the grounds relied on by the District Court in summarily denying appellant's claim for access were erroneous, and we remand for further proceedings in which the District Court may consider appellant's claim in light of several significant events that have occurred since the summary judgment order.

I. BACKGROUND

The materials to which appellant seeks access were transferred from the Executive Office Building to the National Archives Building on March 26 and 27, 1969. ² An appraiser employed by then President Nixon examined them on November 3, 17-20, and December 8, 1969. On April 10, 1970, Edward L. Morgan, Deputy Counsel to the President, informed GSA of the existence of a chattel deed purporting to transfer the materials from Richard Nixon to the United States of America. Shortly thereafter the deed, ³ dated March 27, 1969, was delivered to GSA. The deed was signed by Mr. Morgan, rather than the President, ⁴ and contained the following language designed to restrict access to the materials:

During such time as the undersigned shall hold the office of President of the United States, no person or persons shall have the right of access to such Materials except the undersigned and those who may be designated in writing by the undersigned, and in the case of any person or persons so designated, such right of access shall be limited to those Materials as shall be described in the instrument by which he, she, it or they shall be designated, and for the purposes specified in such instrument; and, if such instrument shall so provide, the person or persons designated therein shall have the further right to copy such of the Materials as shall be described in such instrument and to take and retain possession of such copies for such purposes as shall be specified in said instrument. The undersigned shall have the right and power at any time during his lifetime to modify or remove this restriction as to any or all of the Materials and/or to grant access to any group or groups of persons by notification in writing to the General Services Administration or other appropriate agency of The United States of America. ⁵

No representative of GSA signed the deed, but after the commencement of this suit the Archivist of the United States, in an affidavit dated March 9, 1974, claimed that he had accepted the materials as a gift to the United States "notwithstanding the absence of a formal instrument of acceptance" and had also accepted the restrictions on access "in accordance with the applicable provisions of the Presidential Libraries Act of 1955 (44 U.S.C. §§ 2107 and 2108(c) (1970))." ⁶

Appellant first sought access to the materials in a letter received by GSA on October 9, 1973. ⁷ When his request was denied, he exhausted his administrative remedies. In its final denial of access under FOIA ⁸ GSA claimed that the materials were not "records" under FOIA and that, even if they were "records," they came within the third exemption to FOIA, 5 U.S.C. § 552(b)(3) (1970), because they were "specifically exempted from disclosure by statute" namely by certain provisions of the Presidential Libraries Act of 1955, 44 U.S.C. §§ 2107 and 2108(c) (1970). These provisions empower the Administrator of GSA to accept for deposit the papers and other historical materials of a President, former President, or other official or former official of the Government, "subject to restrictions as to their availability and use stated in writing by the donors or depositors * * *." ⁹

After receiving no reply to a letter to President Nixon requesting a waiver of the restrictions on access, ¹⁰ appellant filed this suit, alleging that the materials were "identifiable records" within the scope of FOIA and that they were not specifically exempted from disclosure under Exemption 3 because Mr. Nixon did not own the materials and because even if he did the procedures outlined by 44 U.S.C. §§ 2107 and 2108(c) for establishing restrictions on access had not been followed. ¹¹ As a first step in discovery appellant scheduled the deposition of Edward Morgan, the only person whose signature appears on the controversial deed. On motion of appellees, however, the District Court stayed the taking of this deposition pending disposition of appellees' motion for summary judgment. JA 46. On April 3, 1974 the District Court granted summary judgment for appellees in a one-page order ¹² citing Nichols v. United States, 325 F.Supp. 130 (D.Kan. 1971), aff'd, 460 F.2d 671 (10th Cir.), cert. denied, 409 U.S. 966, 93 S.Ct. 268, 34 L.Ed.2d 232 (1972), and EPA v. Mink, 410 U.S. 73, 95 n.*, 93 S.Ct. 827, 35 L.Ed.2d 119 (1972) (Stewart, J., concurring). In response to appellant's motion for reconsideration or clarification, the court issued a four-page memorandum opinion indicating the grounds for its decision in more detail. JA 70-73. Brandon then appealed to this court.

Our consideration of this case seeking access to materials associated with Mr. Nixon's vice presidency has been delayed by legislation and litigation concerning materials associated with the Nixon presidency. On September 7, 1974 the Administrator of GSA signed an agreement with Mr. Nixon, analogous to the deed in this case, providing for deposit of the Nixon presidential materials with GSA, but retaining "legal and equitable title" in Mr. Nixon and arranging for destruction of some of the materials. ¹³ Almost immediately several suits challenging the validity of the agreement and seeking access to the materials under FOIA were brought in the United States District Court for the District of Columbia. ¹⁴ Those suits raised many issues identical to the ones raised in appellant Brandon's suit.

In December 1974, while these suits were pending, Congress took action to protect the presidential materials and the investigations of the Watergate Special Prosecutor by enacting the Presidential Recordings and Materials Preservation Act, Pub.L.No.93-526, 88 Stat. 1695. Title I of the Act established a procedure for disposition of documents and materials related to the Nixon presidency. Mr. Nixon brought a suit challenging the constitutionality of the Act, and his suit was consolidated with the previously filed FOIA suits, but the constitutional challenge was given expedited attention pursuant to the provisions of the Act. See Nixon v. Administrator of General Services, 408 F.Supp. 321 (D.D.C. 1976) (three-judge court), aff'd, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). ¹⁵ In light of the common issues involved in appellant Brandon's suit and Nixon v. Administrator of General Services, this court ordered sua sponte that disposition of Brandon's appeal be deferred pending disposition, including appeals, of the latter case. The Supreme Court issued its opinion in Nixon v. Administrator of General Services on June 28, 1977. 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867. ¹⁶

II. THE DISTRICT COURT'S ORDER

We are unable to affirm the District Court's order granting summary judgment because we find that it was based on erroneous conclusions of law and because subsequent events have so altered the issues involved that further consideration by the District Court is essential. In the brief memorandum issued in response to Brandon's motion for clarification, JA 70-73, the District Court explained that it found it unnecessary to determine whether the materials in question were "records" under FOIA because it concluded that in any case the Presidential Libraries Act of 1955 specifically exempted the materials from disclosure. The court first held that the Presidential Libraries Act qualifies as a statute that specifically exempts matters from disclosure under Exemption 3 of FOIA. It then stated that the materials sought by appellant had been deposited with and accepted by GSA "pursuant to the provisions" of the Act and subject to the restrictions contained in the deed "signed on behalf of Richard M. Nixon by Edward L. Morgan, Deputy Counsel 'authorized to sign such document'." JA 72. Since appellant vehemently contested the propriety of the acceptance of the materials and the restrictions, and since the District Court had blocked the discovery process by which appellant could substantiate his allegations, these conclusory statements can be explained only in light of two further conclusions by the District Court.

First, following the opinion of the Tenth Circuit in Nichols v. United States, 460 F.2d...