# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

October 31, 2008

No. 08-5412

I N RE : R ICHARD B. C HENEY

, V ICE P RESIDENT OF THE U NITED
S TATES

, ET AL

.,

P ETITIONERS

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 th e 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 peti tion for writ of mandamus and motion to stay pending proceedings.

Before: G INSBURG , T ATEL , and G RIFFITH , Circuit Judges.

Opinion for the Court filed P ER C URIAM

.2

P ER C URIAM : 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 organiza tions and historians, seek declaratory and mandamus relie f 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 misclassificati on 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 prelimin ary 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 reque sts for clarification, the basic

issue of what PRA classifi cation policies OVP actually practices remains unresolved.

Appreciating the potentially dispositive nature of this seemingly intractable factual di spute, and concerned about the limited time for briefing before the end of the Administration, the district court allowed plai ntiffs to depose Nancy Kegan Smith and David Addington, the Vice President’s Chief of3

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 c ourt confined these depositions to a narrow range of topics th at 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 wr it is appropriate under the

circumstances.” Id. at 380-81 (internal quotation marks omitted). In the context of disc overy 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 impa irment 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 pr ecludes judicial review of decision to destroy presidentia l records). In pressing for4

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 genera l 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 di smissal based

on Armstrong

, see, e.g. , Pet. 2, but this finds no support in the record. OVP’s filings in the di strict 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 re ference to “jurisdictional” arguments to be named later and citing Armstrong only in passing. Indeed, the district c ourt did allow OVP to “raise any of [its] unspecified jurisd ictional arguments in a motion to dismiss pursuant to the brie fing 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 st ay its discovery order did OVP clearly argue that the en tire factual i nquiry—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 histor y below). By contrast, in Cheney a motion to dismiss had been briefed and decided5

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 indis putable 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 mer its, 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 th e 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 topreserve records—relief far beyond merely allowing followup questions on the issue of wh at 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 invol vement 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 logica lly suited to clearing up6

lingering questions regarding he r own affidavits. OVP has asked to designate a differe nt witness, Pet. 14 n.8, and because O’Donnell—perhaps among others—represents a seemingly viable alternativ e, 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 c ould be obtained elsewhere. See, e.g.

, Simplex Time Recorder Co. v. Sec’y of Labor , 766 F.2d 575, 586 (D.C. Cir. 1985). Th erefore we conclude that OVP has a clear and indisputab le 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 distri ct court to modify its discovery order, as OVP requested in the alternative. See Cheney , 542 U.S. at 390 (noting th at “narrow[ ing], on its own, the scope of the subpoenas” is “but one example of the

choices available to the Dist rict 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 sear ches 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 manda mus 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 cour t to allow substitution of an appropriate witness for Addington. In all other respects, the petition for mandamus is denied.

So ordered.