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. 
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 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 vicepresidential 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 
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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 
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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 
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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 followup 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 
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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. 
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 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.