Citizens for Responsibility and Ethics v. Cheney

• Citation: 593 F.Supp.2d 194
• Decision Date: 19 January 2009
• Docket Number: No. 08-1548 (CKK).,08-1548 (CKK).
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs, v. Richard B. CHENEY, Vice President of the United States, et al., Defendants.
• Court: U.S. District Court — District of Columbia

593 F.Supp.2d 194

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs, v. Richard B. CHENEY, Vice President of the United States, et al., Defendants.

Civil Action No. 08-1548 (CKK).

United States District Court, District of Columbia.

January 19, 2009.

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Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, David L. Sobel, Washington, DC, for Plaintiffs.

Helen H. Hong, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

"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.¹

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 GRANIN-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 SUMMARY²

• 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.³ 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...