In re Cheney

• Decision Date: 31 October 2008
• Docket Number: No. 08-5412.,08-5412.
• Citation: 544 F.3d 311
• Parties: In re Richard B. CHENEY, Vice President of the United States, et al., Petitioners.
• Court: U.S. Court of Appeals — District of Columbia Circuit

544 F.3d 311

In re Richard B. CHENEY, Vice President of the United States, et al., Petitioners.

No. 08-5412.

United States Court of Appeals, District of Columbia Circuit.

October 31, 2008.

On Petition for Writ of Mandamus and Motion for Stay Pending Proceedings (D.D.C. No. 08-1548).

Gregory G. Katsas, Assistant Attorney General, U.S. Department of Justice, Jonathan F. Cohn, Deputy Assistant Attorney General, and Mark B. Stern, Michael S. Raab, and Mark R. Freeman, Attorneys, were on the petition for writ of mandamus and motion to stay pending proceedings and the reply.

Anne L. Weismann, Melanie Sloan, and David L. Sobel were on the response to the petition for writ of mandamus and motion to stay pending proceedings.

Before: GINSBURG, TATEL, and GRIFFITH, Circuit Judges.

PER CURIAM:

This litigation concerns the document retention policies of the Office of the Vice President (OVP) under the Presidential Records Act (PRA), 44 U.S.C. §§ 2201 et seq. Plaintiffs, nonprofit organizations and historians, seek declaratory and mandamus relief against OVP, Vice President Richard Cheney, the Archivist of the United States, and related entities, alleging that OVP applies an unduly narrow construction of the statutory term "Presidential records," leading to the misclassification of some vice-presidential documents and their subsequent loss to posterity. See 44 U.S.C. § 2201(2) (defining "Presidential records"); id. § 2203 (specifying procedures for preservation of presidential records); id. § 2207 (applying all terms of PRA to vice-presidential records). In response to these charges, OVP submitted to the district court two sworn declarations — one from Claire O'Donnell, the Vice President's Deputy Chief of Staff, and one from Nancy Kegan Smith of the National Archives — denying, as a factual matter, that OVP employs any narrowing construction. See Defs.' Opp. Mot. Prelim. Inj. 1-5, 6-16; O'Donnell Decl. 1-5; Smith Decl. 1-4. The district court entered a preliminary injunction to preserve the status quo while it assessed the "seminal" issue of whether OVP is in fact complying with the PRA's requirements. Citizens for Responsibility & Ethics in Wash. v. Cheney ("CREW I"), No. 08-1548(CKK), 2008 WL 4287403, at *8, *12 (D.D.C. Sept. 20, 2008). But after a month of litigation and several district court requests for clarification, the basic issue of what PRA classification policies OVP actually practices remains unresolved.

Appreciating the potentially dispositive nature of this seemingly intractable factual dispute, and concerned about the limited time for briefing before the end of the Administration, the district court allowed plaintiffs to depose Nancy Kegan Smith and David Addington, the Vice President's Chief of Staff. Citizens for Responsibility & Ethics in Wash. v. Cheney ("CREW II"), No. 08-1548(CKK), slip op. at 18 (D.D.C. Sept. 24, 2008). The district court confined these depositions to a narrow range of topics that would allow plaintiffs to follow-up on factual questions that OVP had put at issue in its declarations and directed that they be conducted in the presence of a judicial officer to resolve privilege issues and prevent any overreaching. Id. at 18-20. OVP nonetheless petitions for mandamus, asking us to vacate the district court's discovery order as an "unprecedented" intrusion into the prerogatives of the Vice Presidency. Pet. 1.

An "extraordinary remedy," mandamus is justified only in "exceptional circumstances amounting to a judicial usurpation of power." Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks omitted). The tripartite standard for issuance of the writ is therefore exacting: the right to relief must be "clear and indisputable"; there must be "no other adequate means to attain the relief"; and "the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Id. at 380-81, 124 S.Ct. 2576 (internal quotation marks omitted). In the context of discovery ordered against the Vice President, the Supreme Court has instructed that we "ask, as part of this inquiry, whether the District Court's actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties." Id. at 390, 124 S.Ct. 2576.

OVP argues that it has a clear and indisputable right to relief from the depositions because the district court ordered "intrusive" discovery while refusing to consider a winning threshold argument for dismissal under our precedent in Armstrong v. Bush, 924 F.2d 282, 291 (D.C.Cir. 1991) (holding that PRA impliedly precludes judicial review of decision to destroy presidential records). In pressing for mandamus, OVP places singular reliance on the Supreme Court's decision in Cheney, 542 U.S. at 390, 124 S.Ct. 2576, and on our decision following that remand, In re Cheney, 406 F.3d 723, 728, 731 (D.C.Cir.2005) (en banc). We agree that those decisions stand for the general principle that mandamus may be warranted where valid threshold grounds for dismissal, denied by the district court, would obviate the need for intrusive discovery against the Vice President. But for several reasons, as explained below, we are convinced that Cheney requires only limited mandamus relief here, regardless of the merits of OVP's argument under Armstrong.

First and foremost is the litigation posture of this case in the district court. OVP implies in its petition that the district court refused numerous attempts to move for dismissal based on Armstrong, see, e.g., Pet. 2, but this finds no support in the record. OVP's filings in the district court fully developed its factual argument that it was complying with the PRA, see Defs.' Opp. Mot. Prelim. Inj. 1-16; Defs.' Mot. Recons. 1-7; Smith Decl.; O'Donnell Decl.; Second Suppl. O'Donnell Decl., while making only oblique reference to "jurisdictional" arguments to be named later and citing Armstrong only in passing. Indeed, the district court did allow OVP to "raise any of [its] unspecified jurisdictional arguments in a motion to dismiss pursuant to the briefing schedule set by the Court," Citizens for Responsibility and Ethics in Wash. v. Cheney ("CREW III"), No. 08-1548(CKK), 2008 WL 4457871, at *2 (D.D.C. Oct. 6, 2008), but OVP failed to do so. Not until it asked the district court to stay its discovery order did OVP clearly argue that the entire factual inquiry — which it raised — should be set aside in view of Armstrong. See CREW III, 2008 WL 4457871, at *11 (relying on defendants' conduct in denying stay pending petition for mandamus); see generally CREW II (detailing procedural history below). By contrast, in Cheney a motion to dismiss had been briefed and decided before any request for mandamus. In the judgment of the district court here, the current litigation posture necessitates...