United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 31, 2008
No. 08-5412
IN RE: RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED
STATES, ET AL.,
PETITIONERS
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.
Opinion for the Court filed PER CURIAM.
2
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
3
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 (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 (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.
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
4
mandamus, OVP places singular reliance on the Supreme
Court’s decision in Cheney, 542 U.S. at 390, 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. 5, 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
5
before any request for mandamus. In the judgment of the
district court here, the current litigation posture necessitates
limited discovery to permit timely adjudication of the factual
defense 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, e.g., Berry v.
Dist. of Columbia, 833 F.2d 1031, 1037 n.24 (D.C. Cir.
1987), that judgment is not remotely one from which
defendants have an indisputable right to relief.
This case differs from Cheney for a second reason. In
Cheney discovery would have provided plaintiffs “all the
disclosure to which they would [have] be[en] entitled in the
event they prevail[ed] on the merits, and much more besides.”
542 U.S. at 388. This rendered an appeal from final judgment
inadequate and counseled strongly for immediate mandamus
relief to prevent the horses from irretrievably exiting the barn.
Here the discovery is far more limited and does not itself
provide the relief sought in the complaint. The depositions
are intended to allow follow-up questioning on facts OVP has
itself put in evidence, not to allow interrogatories and
document production requests on “everything under the sky.”
Id. at 387. Moreover, the ultimate relief plaintiffs seek here is
a declaration on whether OVP’s classification policy is
consistent with the PRA, as well as possible mandamus to
preserve records—relief far beyond merely allowing follow-
up questions on the issue of what classification policy the
Office actually follows.
The discovery here is thus appropriately narrow, save in
one respect. David Addington is the Vice President’s Chief
of Staff and has no apparent involvement in this litigation.
Plaintiffs have so far shown no need for the deposition of
such a high-ranking member of the Office, especially when
O’Donnell would seem more logically suited to clearing up
6
lingering questions regarding her own affidavits. OVP has
asked to designate a different witness, Pet. 14 n.8, and
because O’Donnell—perhaps among others—represents a
seemingly viable alternative, deposing Addington would
constitute an “unwarranted impairment” of the functioning of
OVP. Cheney, 542 U.S. at 390. The duties of high-ranking
executive officers should not be interrupted by judicial
demands for information that could be obtained elsewhere.
See, e.g., Simplex Time Recorder Co. v. Sec’y of Labor, 766
F.2d 575, 586 (D.C. Cir. 1985). Therefore we conclude that
OVP has a clear and indisputable right to relief from the
deposition of the Vice-President’s Chief of Staff and no other
means of obtaining that relief. Our discretion to issue the writ
of mandamus extends to directing the district court to modify
its discovery order, as OVP requested in the alternative. See
Cheney, 542 U.S. at 390 (noting that “narrow[ing], on its
own, the scope of the subpoenas” is “but one example of the
choices available to the District Court and the Court of
Appeals”).
If we assume substitution of O’Donnell for Addington,
all the district court has proposed is to allow follow-up with
individuals who have already seen fit to go under oath—one
of whom is not a member of the Vice President’s staff at all.
No exhaustive document searches are required and the
questions will be supervised by a judicial officer to prevent
overreaching. Even if OVP has a winning Armstrong
argument, allowing this course will cause it little to no
inconvenience, making mandamus inappropriate. Should
OVP file and the district court eventually deny the still
notional motion to dismiss, there will be ample opportunity
for review, whether by mandamus or on direct appeal as
circumstances warrant.
7
We direct the district court to allow substitution of an
appropriate witness for Addington. In all other respects, the
petition for mandamus is denied.
So ordered.