Nixon v. Freeman, 79-2453
Decision Date | 09 February 1982 |
Docket Number | No. 79-2453,79-2453 |
Citation | 670 F.2d 346,216 U.S.App.D.C. 188 |
Parties | , 8 Media L. Rep. 1001 Richard M. NIXON, Appellant, v. Rowland G. FREEMAN, III, as Administrator, General Services Administration, et al. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Alfred Mollin, Atty., Dept. of Justice, for appellee, Adm'r of Gen. Services. Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Glenn V. Whitaker, Atty., Dept. of Justice, Washington, D. C., were on brief for appellee, Adm'r of Gen. Services.
R. Stan Mortenson, Washington, D. C., with whom Herbert J. Miller, Jr., and James E. Rocap, III, Washington, D. C., were on brief for appellant.
Mark J. Spooner, Washington, D. C., with whom Peter T. Grossi, Jr., Leonard B. Simon and James J. Sandman, Washington, D. C., were on brief for appellees, The Reporters Committee for Freedom of the Press, et al.
Before ROBINSON, Chief Judge, McGOWAN, Senior Circuit Judge, and JOHNSON *, United States District Judge for the District of Columbia.
Opinion for the Court filed by Senior Circuit Judge McGOWAN.
In this appeal from the District Court's grant of summary judgment, former President Richard M. Nixon challenges the constitutionality of regulations promulgated by the Administrator of General Services to implement the Presidential Recordings and Materials Preservation Act ("Act"), 44 U.S.C. § 2107 note (1976). Following a pretrial settlement of some of his claims, Mr. Nixon limited his challenge in the District Court to two features of the regulations: (1) the provision allowing public access to certain tape recordings, 41 C.F.R. § 105-63.404(c) (1980), and (2) the procedure by which government archivists plan to screen and identify tapes containing Mr. Nixon's personal diary. Mr. Nixon renews these claims on appeal, asserting violations of the Presidential privilege of confidentiality, his rights of political association under the First Amendment, and his privacy rights protected by the Fourth Amendment. He also contends that the District Court abused its discretion in limiting discovery after the submission of cross-motions for partial summary judgment.
We find Mr. Nixon's constitutional challenges unavailing. We also hold that, looking to the precise circumstances in which the issues arose, the District Court did not abuse its discretion in limiting Mr. Nixon's discovery efforts. The judgment of the District Court is, accordingly, affirmed.
The Act under which the challenged regulations were promulgated was itself the subject of an earlier suit by Mr. Nixon, and the background and decision in that case are relevant to his current contentions. 1 After Mr. Nixon resigned as President on August 9, 1974, the new administration halted the shipment to California of the Presidential materials accumulated during the Nixon Presidency. Negotiations between Mr. Nixon and the Administrator of General Services Administration (GSA) produced an agreement concerning the deposit and custody of the materials. Before that agreement became effective, however, it was superseded by the Act, which became law on December 19, 1974. 2 The Act directed GSA to take custody of all tape recordings and other Presidential materials accumulated during the Nixon Presidency, 3 and directed the Administrator to promulgate regulations governing public access to the materials. § 101(b)(1). The Administrator was then to submit the regulations to Congress, and either House had the power to disapprove them within ninety days of their submission. § 104(b).
One day after the Act's passage, Mr. Nixon brought suit in the District Court, challenging the Act's constitutionality and seeking declaratory and injunctive relief against it. A three-judge District Court ruled that the Act on its face did not violate the Constitution, Nixon v. Administrator, 408 F.Supp. 321 (D.D.C.1976). The Supreme Court affirmed, Nixon v. Administrator, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
The Supreme Court emphasized that its holding was limited to the facial constitutionality of the Act. Id. at 436-39, 97 S.Ct. at 2786-2788. Because regulations governing public access could take a variety of forms, the Court did not address the constitutionality of any particular provision for public access. Instead, the Court primarily examined the Administrator's taking custody of and screening the materials. Other constitutional questions would be appropriate for judicial resolution only in the context of a challenge to regulations implementing the Act's broad provisions.
Mr. Nixon initiated such a challenge-the action now before us-in the District Court on August 10, 1977, seeking declaratory and injunctive relief against regulations promulgated by the Administrator to implement several provisions of the Act. On August 19, 1977, Mr. Nixon amended his complaint to include a challenge to certain revisions made to the regulations. J.A. 19. On December 16, 1977, the Administrator announced that regulations implementing section 104 of the Act, which governs public access to the materials, had become effective, having lain before Congress for ninety days without receiving the disapproval of either House. 42 Fed.Reg. 63626 (1977). 4 To consolidate the claims of the first amended complaint with his challenges to the more recent set of regulations, Mr. Nixon filed on January 31, 1978, a second amended complaint. J.A. 33.
On June 14, 1978, in response to a single motion, the court granted defendant-intervenor status to the Reporters Committee for Freedom of the Press, the American Historical Association, the American Political Science Association, James MacGregor Burns, Nat Hentoff, Donald G. Herzberg, William Leuchtenberg, Arthur Link, J. Anthony Lukas, Austin Ranney, and Clement E. Vose. J.A. 13. Thereafter the parties reached a settlement agreement on February 14, 1979, which called for certain amendments to the regulations and disposed of all of Mr. Nixon's challenges but those concerning the creation of archival listening centers, 41 C.F.R. § 105-63.404(c) (1980), and archival screening of tapes and dictabelts containing Mr. Nixon's personal diary. J.A. 95. By the terms of the settlement, the parties agreed to litigate these two issues while the revised portions of the regulations were submitted to Congress for approval. 5
To implement the agreement, Mr. Nixon filed a third amended complaint on March 7, 1979, counts I and II of which were to be dismissed when the revised regulations became effective. J.A. 183. Because neither House disapproved of the revised regulations within ninety days of their submission, those regulations became effective on March 7, 1980. 45 Fed.Reg. 14856 (1980).
At the time Mr. Nixon filed the third complaint, he also submitted a schedule for disposition of the two unsettled issues. The schedule suggested a brief period for discovery of material "reasonably necessary for filing of dispositive motions," followed by the filing of plaintiff's motion for summary judgment and defendants' opposition or cross-motion for summary judgment. J.A. 190. The court accepted this schedule on March 14, 1979. After the Administrator responded to Mr. Nixon's interrogatories and requests for admissions, Mr. Nixon on May 4, 1979, moved for summary judgment on counts III and IV of his third amended complaint. J.A. 225. Because the settlement agreement provided for the dismissal of counts I and II when Congress approved the revised regulations, the May 4 motion, though styled a motion for partial summary judgment, sought summary judgment on both of the remaining contested issues.
Shortly after filing that motion, on May 8, 1979, Mr. Nixon sought leave to depose Robert Lipshutz, White House Counsel, to discover whether the White House possessed "any materials relevant to the tapes access issue." J.A. 273. The Administrator objected to this effort, and the court denied Mr. Nixon's motion. J.A. 15. On June 1, 1979, the Administrator filed a cross- motion for partial summary judgment, J.A. 289, and the intervenor-defendants filed such a motion on June 8, 1979, J.A. 337. Mr. Nixon then attempted further discovery. He noticed the depositions of the Archivist and Deputy Archivist of the United States, and subpoenaed from those individuals all documents "pertaining to the gifts or other transfers of tape recordings involving Presidents Kennedy and Johnson to the National Archives and any agreement, plan, or consideration given to the question of public listening to those recordings." J.A. 362, 363. The Administrator responded by moving for an order quashing the subpoenas and for a protective order prohibiting further discovery until the court had resolved the cross-motions for partial summary judgment. J.A. 365. On June 24, 1979, the court granted the Administrator's motion, J.A. 16, and on July 23, 1979, issued an order granting defendants' motions for partial summary judgment. J.A. 17. After Mr. Nixon moved for reconsideration of the order, the court issued on October 12, 1979, another order denying Mr. Nixon's motion and entering final judgment against him. J.A. 18. 6 Mr. Nixon then filed this appeal.
In reviewing Mr. Nixon's claims in the context of an appeal from the District Court's grant of summary judgment, we are mindful of our obligation to uphold the District Court only if there is no genuine issue of material fact requiring more intensive exploration of Mr. Nixon's claims. Fed.R.Civ.P. 56(a). We proceed, therefore, to inquire whether, on the record before us, the defendants were entitled to judgment as a matter of law on both the issue of public access to tape recordings and the issue of archival screening of diary material.
Although Mr. Nixon limits his challenge to these two aspects of the regulations, an evaluation of his claims requires an understanding of the system of processing and public access created by...
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